IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Crl.Rev.Pet.No. 2243 of 2008() ------------------------------ CRA.710/2005 of SESSIONS COURT, KOLLAM CC.393/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... REVN. PETITIONER/ APPELLANT/ACCUSED: --------------------- SALU VARGHESE, S/O.VARGHESE, MAPPILAMELIL VEEDU, MEZHANNOOR VILLAGE, KUNNATHU DESOM, ERNAKULAM DISTRICT. BY ADV. SRI.PIRAPPANCODE V.S.SUDHEER RESPONDENT/ RESPONDENT/COMPLAINANT: ------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL HIGH COURT, ERNAKULAM (CRIME BRANCH CID, SIG(1), KOLLAM). PUBLIC PROSECUTOR SRI. P RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/09/2008, ALONG WITH CRRP NO. 2227 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2243 OF 2008 AND CRL.R.P. NO. 2227 OF 2008 ------------------------------------------ Dated this the 25th day of September, 2008 O R D E R Revision petitioner was a Contractor. He had submitted a tender for constructing acquiduct for Kallada Irrigation Project. Being the lowest tender, his tender was accepted. Petitioner executed Ext.P5 (It is also seen marked as Ext.P3) agreement. Under clause 8 of the general conditions of the local competitive bidding, which forms part of the agreement, an advance for plant and machinery required for the work and brought to site by the contractor shall be given if requested by the contractor on condition that such plant and equipments are considered by the Executive Engineer to be necessary for the work and are in working order and hypothecated to the Government in the form provided as Annexure-C of the agreement. Mobilisation advance not exceeding 5% to the value for the contract shall be given, if requested by the contractor, in writing in which case a bond as provided under Annexure-D shall be executed by the contractor and he shall also furnish a CRRP2243/08 & 2227/08 2 bank guarantee in the form given under Annexure-A3. Prosecution case is that petitioner for enabling him to get the mobilization advance, executed the bond and also furnished the bank guarantee. It was contended that Ext.P1 bank guarantee for Rs.87,000/-, bank guarantee 39/1984 dated 25.5.1984 and bank guarantee 8/1985 dated 9.1.1985 for Rs.34,250/- (which was not seen produced) and Ext.P38 bank guarantee 17/1985 dated 22.1.1985 for Rs.21,200/- and Ext.P39 bank guarantee 36/1985 dated 1.3.1985 for Rs.52,000/- were produced and mobilisation advance was withdrawn and subsequently petitioner abandoned the work and therefore the agreement was terminated. It was contended that Ext.P1, P38 and P39 bank guarantees and bank guarantee 8/85 were forged bank guarantees and were not issued by Catholic Syrian Bank, which they purported to be, and petitioner produced them as genuine bank guarantees knowing that they are forged ones and thereby committed the offences under section 468, 471, 469 and 420 of Indian Penal Code. 2. Malayala Manorama Daily dated 8.12.1985 published a report that the contractor had produced forged bank CRRP2243/08 & 2227/08 3 guarantees to get the amounts due from Kallada Irrigation Project. It was placed before Minister for Home, who directed immediate investigation and report on 10.12.1985. E.J. Vijayadas, Deputy Superintendent of Police conducted preliminary enquiry and submitted two reports on the allegations in the paper reports recommending registration of the case against petitioner for the offences under section 468 and 471. Based on Ext.P31 report Ext.P34 F.I.R. was prepared and crime 32/CR/86 was registered in respect of Ext.P38 bank guarantee 17/1985 for Rs.21,200/- and Ext.P39 bank guarantee 36/1985 for Rs.52,000/-. Based on Ext.P32 report, Ext.P33 F.I.R. was prepared and crime 31/CR/1986 in respect of Ext.P1 bank guarantee No.39/1984 dated 25.5.1984 for Rs.87,000/- and bank guarantee No.8/1985 dated 9.1.1985 for Rs.34,250/- was registered. After completing the investigation, a charge for the offences under section 468, 471 and 420 of Indian Penal Code was submitted before Judicial First Class Magistrate, Kottarakkara, which was taken cognizance as C.C.392 of 2001. That relates to Ext.P1 bank guarantee as well as bank guarantee No.8/1985 for Rs.34,250/-. Another charge sheet was submitted CRRP2243/08 & 2227/08 4 in respect of crime 32/CR/85 alleging commission of offence under section 468, 471 and 420 of Indian Penal Code which was taken cognizance by same mahazar as C.C.393 of 2001. It was in respect of Ext.P38 and P39. Petitioner pleaded not guilty in both the cases. Learned Magistrate jointly tried both the cases. Petitioner was convicted and sentenced for the offences under section 468, 471, 469 and 420 in both the cases. Challenging the conviction and sentence in C.C.392 of 2001, Criminal Appeal 709 of 2005 was filed. Challenging the conviction and sentence in C.C.393 of 2001, Criminal Appeal 710 of 2005 was filed before Sessions Court, Kollam. Learned Sessions Judge heard both the appeals together. As per common judgment dated 6.2.2008 both the appeals were dismissed confirming the conviction and sentence. Criminal Revision Petition 2227 of 2008 was filed challenging the conviction in C.C.392 of 2001 as confirmed in criminal appeal 709 of 2005 and Criminal Revision Petition 2243 of 2008 was filed challenging the conviction and sentence in C.C.393 of 2001 as confirmed in Criminal Appeal 710 of 2005. 3. Learned counsel appearing for petitioner and learned CRRP2243/08 & 2227/08 5 public prosecutor were heard. 4. On going through the judgment of the learned Sessions Judge, it is seen that learned Sessions Judge did not consider Criminal Appeal 709 of 2005. But rendering a finding that Ext.P38 and P39 are forged Bank guarantees produced by the petitioner, conviction and sentence in both the cases are confirmed and dismissed the appeals. Though the appeals were heard jointly and C.C.392 of 2001 and C.C.393 of 2001 were tried jointly, conviction in the two cases can be confirmed by the appellate Court only after considering the correctness of findings based on the evidence in both the cases. 5. The prosecution case in C.C.392 of 2001 is in respect of Bank guarantee 39/1984 (Ext.P1) and Bank guarantee 8/1985, which is seen not marked. C.C.393 of 2001 relates to Bank guarantee 17/1985 (Ext.P38) and Bank guarantee 36/1985 (Ext.P39). The relevant finding of the learned Sessions Judge as seen from paragraph 18 of the judgment reads: “The appellant had produced two bank guarantees namely, Ext.P30 and P39. (It could only be Ext.P38 and P39). He had CRRP2243/08 & 2227/08 6 also drawn mobilisation advance of Rs.87,000/-. Two of the bank guarantees produced by the accused were found to be forged.” The drawing of mobilisation advance of Rs.87,000/- evidenced by Ext.P8 sanction order and Ext.P6 receipt is in respect of which Ext.P1 bank guarantee was produced and Bank guarantee 8/1985 relates. The question whether Ext.P1 is a forged bank guarantee or not was not considered by the learned Sessions Judge at all. It is seen that Criminal Appeal 709 of 2005 was dismissed confirming the conviction and sentence, ignoring the fact that the petitioner could be convicted for the offence charged in C.C. 292 of 2001 only on proving that bank guarantee 39/1984 and bank guarantee 8/1985 are forged bank guarantees produced by petitioner as genuine with the knowledge that they are forged documents. Without producing and proving bank guarantee 8/1985, the prosecution case that petitioner committed the offence under section 468, 471 and 469 cannot be upheld in respect of bank guarantee 8/1985. When the appellate Court did not consider the question whether CRRP2243/08 & 2227/08 7 Ext.P1 bank guarantee 39/1984 is a forged document or not, conviction in C.C. 392 of 2001 as confirmed in the appeal cannot be upheld. As the learned Sessions Judge did not consider the said material and relevant question, there is no other alternative but to set aside the judgment and remand Criminal Appeal 709 of 2005 to Sessions Judge for fresh disposal of the appeal after consideration of the entire evidence in the proper perspective. 6. When it is found that judgment in Criminal Appeal 709 of 2005 is to be set aside and the appeal is to be remanded, Criminal Appeal 710 of 2005 which was heard and disposed by a common judgment, necessarily, the judgment in Criminal Appeal 710 of 2005 is also to be set aside and remanded for fresh disposal. It is seen that the learned Sessions Judge did not specifically consider the evidence relevant and necessary for convicting the petitioner. Though Ext.P5 agreement as per clause 8 of the local competitive bidding, which forms part of the agreement signed by petitioner, shows that mobilisation advance could be granted only after sanctioning the same and on the contractor producing a bank guarantee in the given Annexure- A3 form and bond in Annexure-D form question whether Ext.P1, CRRP2243/08 & 2227/08 8 P38 and P39 were given by the petitioner and whether they are proved to be forged bank guarantees are to be found by the Court on the evidence on record. The argument of the learned counsel appearing for petitioner is that while appreciating the evidence, learned Sessions Judge did not consider section 60 of Indian Evidence Act. Learned Sessions Judge is bound to consider the said aspect also while re-hearing the appeals. It is seen from the records of the Courts below that mistake was committed by the Magistrate while marking the exhibits. Even though bank guarantee No.36/1985 which is alleged to be the forged bank guarantee which is seen marked through PW22, Ext.P39 wrongly marked by the Court is not agreement 36/1985 but guarantee No.16/1985. It is evidently a mistake committed while marking. It is also seen that through PW2 agreement executed by the petitioner is marked as Ext.P3. But the very same agreement was seen again marked as Ext.P5 through PW9. These mistakes were also not taken note of by the learned Sessions Judge. In such circumstances, the common judgment passed by Sessions Judge, Kollam in Criminal Appeals 709 of 2005 and 710 of 2005 is to be set aside and appeals are to be CRRP2243/08 & 2227/08 9 remanded for fresh disposal. The revision petitions are allowed. Judgment in Criminal Appeals 709 of 2005 and 710 of 2005 is set aside. The criminal appeals are remanded to Sessions Court, Kollam for fresh disposal in accordance with law. Learned Sessions Judge is to dispose the appeals expeditiously. Send back the entire records forthwith. Petitioner is directed to appear before learned Sessions Judge on 28.10.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-