IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 CRL.A.No. 1900 of 2004(A) -------------------------------------- CC.27/1998 OF SPECIAL COURT (SPE/CBI)-II , ERNAKULAM .................... APPELLANT/COMPLAINANT: ------------------------------------------ C.B.I., REPRESENTED BY PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.P. CHANDRASEKHARAN PILLAI, SC FOR CBI, RESPONDENT/ACCUSED: ------------------------------------- P.I. BABU, FORMER BR. MANAGER, SYNDICATE BANK, THODUPUZHA BRANCH, THODUPUZHA. BY ADV. SRI.P.VIJAYA BHANU, SRI.P.M.RAFIQ. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs 'CR' P.S.GOPINATHAN, J. ------------------------------ Crl.A.No.1900 OF 2004 --------------------------------- Dated this the 25th day of May, 2011 J U D G M E N T ~~~~~~~~~~~~ This is an appeal against an order of acquittal. On 21.12.1993, one P.V.Mathew alleged to be aged 47 years, son of Varkey residing at Palliparambu, Muthalakodam, Thodupuzha filed Ext.P1 application before the Syndicate Bank, Thodupuzha Branch wherein the respondent was the Manager, seeking a loan of Rs.25,000/- as an artisan. Yet another application, Ext.P3 was filed for opening a Savings Bank Account. In pursuance to Ext.P1 application, loan of Rs.25,000/- was grated by the respondent. In pursuance to Ext.P3, a Savings Bank A/c was opened. The loan amount was transferred to the Savings Bank A/c and the amount was withdrawn on 23.12.1993 through Ext.P6 withdrawal slip. The appellant got source information that the applicant shown in Ext.P1 is a fictitious person and that the respondent abusing the office, fraudulently forged the loan application as well as application for opening Savings Bank A/c in the name of the fictitious person and using Crl.A.No.1900/2004 2 those forged documents, the loan amount, which was in trust with the respondent, was misappropriated and thereby committed breach of trust and that the respondent, who was a public servant as defined under Section 2(c) of the Prevention of Corruption Act, 1988, (herein after referred to as 'PC Act'), had undue pecuniary advantage. PW16, the Inspector, CBI registered a case as crime No.RC 8(A)/95/CBI/SPE) for offences under Sections 409, 468, 471 IPC and under Section 13(2) read with 13(1)(c) and 13(1)(d) of the PC Act. PW16 took over the investigation. He questioned the witnesses, recorded their statements and seized the documents. On completing the investigation, PW16 arrived at a conclusion that the respondent had committed offences under Sections 409, 465, 467, 471 IPC and under Section 13(2) read with 13(1)(c) and 13(1)(d) of the PC Act. Thereupon, he filed a final report, alleging the above said offences, before the Special Judge SPE/CBI-II, Kochi. The learned Special Judge took congnizance and issued process responding to which, the respondent entered appearance. He was furnished with copies of the final report and the connected documents. Thereafter, the prosecution and the respondent Crl.A.No.1900/2004 3 were heard. On finding that there are materials to send the respondent for trial, a charge for the said offences was framed. When read over and explained, the respondent pleaded not guilty. Hence he was sent for trial. On the side of the prosecution, PWs 1 to 16 were examined. Exts.P1 to to P22(a) were marked. During the course of cross examination, Exts.D1 to D6 were marked on the side of the defence. After closing the evidence for the prosecution, the respondent was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The respondent admitted his official status, but denied the incriminating evidence. Further stated that he was falsely implicated at the instance of his successor, who was examined as PW1. No defence evidence was let in. The learned Special Judge on appraisal of the evidence on record arrived at a conclusion that the respondent had committed forgery, misappropriation and criminal misconduct by using the forged documents as genuine. But it was found that the prosecution had not succeeded to prove that PW13, who accorded sanction to prosecute the appellant, was the competent authority at the time when Ext.P19 sanction order, copy of which was marked as Crl.A.No.1900/2004 4 Ext.P16, was issued. Consequently, the respondent was acquitted. Assailing the above order of acquittal, the prosecution has come up in appeal. 2. I heard Advocate Sri.P.Chandrasekharan Pillai, the learned standing counsel for the CBI as well as Advocate Sri.P.Vijayabhanu, the learned senior counsel appearing for the respondent and perused the documents and evidence. 3. PW13 would depose that in November, 1995 he was the Deputy General Manager (officiating) posted at the Zonal office of the Syndicate Bank, Trivandrum and as such he was the Zonal Head of the Bank and that in that capacity he was the authority competent to remove the respondent from the office and that the records relating to the investigation including the statement of the witnesses and the documents seized were produced before him and after examining the documents, he accorded sanction to prosecute the respondent and that Ext.P16 is the copy and Ext.P19 is the certified copy of the order according sanction to prosecute the respondent. Though PW13 Crl.A.No.1900/2004 5 was subjected to a very lengthy and searching cross examination, no material was disclosed to come to a finding that as on 14.12.1995 when the sanction to prosecute the respondent was accorded, PW13 was not the authority competent to remove the respondent from the office or any other person was holding that post. But the learned Special Judge arrived at a finding against the prosecution, basing upon Ext.D6, a communication issued on 14.3.1995 by another Deputy General Manager and disciplinary authority. Though Ext.D6 was not seen confronted to PW13, in cross examination it was suggested that in January, 1995, V.M.Kini was the Deputy Manager. PW13 had answered affirmatively. There is no suggestion that as on the date of Ext.P16/P19, PW13 was not the Deputy Manager or someone else was the Deputy Manager. Ext.D2 dated 11.10.1994 would show that PW13, the then Assistant General Manager was put in charge of the Deputy General Manager. Thereafter, by Ext.P18 order dated 24.10.1994, PW13 was ordered to officiate as Deputy General Manager. According to the respondent, subsequently PW13 was transferred and on the date of Ext.D6 someone else was working as Deputy General Manager. Crl.A.No.1900/2004 6 Thereafter, no order appointing PW13 as Deputy General Manager was produced by the prosecution. Therefore, PW13 was not the competent officer. The Special Judge, while arriving at a conclusion that someone else was holding the post of the Zonal Head and therefore, there is no valid sanction to prosecute the respondent, omitted to note that the evidence of PW13 that as on the date of Ext.P16/P19, PW13 was the Deputy General Manager and Head of the Zonal Office at Trivandrum remains unimpeached. There is no suggestion, as stated earlier, to PW13 that as on the date of Ext.P16/P19, PW13 was not the Head of the Zonal Office. Of course, there is a vague suggestion in cross that he was not the authority competent to accord sanction to prosecute the appellant. That suggestion would not affect the credibility of the evidence of PW13. On a critical analysis of the evidence of PW13 and Ext.P16/P19, I find no reason at all to disbelieve the evidence of PW13 regarding his status on the date of Ext.P16/P19 as the Head of the Zonal Office of the Syndicate Bank under whom the respondent was employed. I find that Ext.D6 dated 14.3.1995 would no way belie the evidence of PW13 regarding his status as on 14.12.1995. In prosecution Crl.A.No.1900/2004 7 under the PC Act, it is not necessary to produce the order appointing the sanctioning authority. When the sanctioning authority was examined in trial and had given umimpeached evidence that he was the authority competent to accord sanction, his evidence cannot be rejected for the non production of the order appointing the sanctioning authority or for the reason that the defence had produced a document to show that months back of the sanction order, someone else was holding the post. In the absence of evidence to show that someone else was the Head of the Zonal office as on the date of Ext.P16/P19, I find that the Special Judge had gone wrong in giving reliance to Ext.D6 to invalidate the sanction accorded to prosecute the respondent. I further find that from the evidence of PW13 coupled with Ext.P16/19, there is convincing evidence to the effect that on the date of Exts.P16/P19, PW13 was the Head of the Zonal Office of the Syndicate Bank at Trivandrum and as such he was the authority competent to remove the respondent from service as per Ext.P17 regulation. The evidence of PW13 would show that he had verified the statement of the witnesses and the report of the investigation and accorded sanction to prosecute the Crl.A.No.1900/2004 8 respondent. I find no good reason to reject that evidence of PW13. Therefore, reversing the finding of the Special Judge, I find that Ext.P16/19 order according sanction to prosecute the respondent was duly issued by PW13 in his capacity as the disciplinary authority and it is a valid sanction order. 4. The fact that in pursuance to Ext.P1 loan application, a sum of Rs.25,000/- was sanctioned by the respondent in favour of the applicant shown therein and the said amount was withdrawn is not at all disputed. In the nature of the defence, the only point that arises is whether the applicant in Ext.P1 loan application is a fictitious person or not. The Special Judge, referring to the evidence of PWs 1,2, 3, 4, 5, 6, 7, 8, 9, 10 and 12, as mentioned earlier, arrived at a conclusion that the signature in the loan application and the connected documents including the withdrawal slip were forged by the respondent and using those documents as genuine the amount was withdrawn by the respondent and appropriated the same. Crl.A.No.1900/2004 9 5. PW1 succeeded the respondent and assumed charge of the Manager of the Bank in May, 1994 when the respondent was relieved. He would depose that Ext.P1 loan application is in the handwriting of the respondent. He also proved the connected documents. Ext.P2 is the loan ledger. Ext.P3 is the Savings Bank A/c opening form, wherein the respondent had introduced the applicant. Ext.P3(e) is the specimen signature of the applicant. Ext.P3(d) is the ledger relating to Savings Bank Account. Ext.P3(f) is the debit slip passed by the respondent through which the loan amount was credited to the Savings Bank A/c and Ext.P5 is the corresponding credit slip. Thereafter, the loan amount of Rs.25,000/- was withdrawn through Ext.P6 withdrawal slip prepared by the respondent in his own handwriting. The further evidence of PW1 is that on 6.6.1994, Rs.20,000/- was remitted back through Ext.P7 pay-in-slip. Yet another sum of Rs.3,158/- was remitted on 12.7.1994 through Ext.P7(a) pay-in-slip. PW1 would further depose that a registered letter sent to the loanee was returned stating that there is no such addressee and that Ext.P8 is the registered letter so returned and that the Deputy Divisional Manager, who was Crl.A.No.1900/2004 10 examined as PW2, was appointed to enquire into the allegations and that PW1 accompanied PW2 during enquiry. They made a local enquiry and found that no such person is residing in the address stated in Ext.P1 application for loan. 6. PW2 would depose that he was the Deputy Divisional Manager in Syndicate Bank at Trivandrum and that he was directed to conduct an enquiry and he conducted an enquiry regarding the loanee in Ext.P1 and on enquiry it was revealed that no such person is residing in the address given in Ext.P1 loan application. 7. PW3 would depose that he was employed as a Clerk in Syndicate Bank, Thodupuzha Branch for about 9 years and that the respondent was the Manager of the Bank and that the respondent called PW3 to the house of the respondent and handed over Rs.23,000/- to remit Rs.20,000/- in the loan account in dispute in this case and Rs.3000/- to another account. Heeding the request of the respondent, he prepared a pay-in- slip, which was identified as Ext.P7 dated 6.6.1994 and remitted Crl.A.No.1900/2004 11 the amount in the loan account. Prosecution had cited this witness also to depose that no such person shown in Ext.P1 application is living in the address given therein. But he had stated in the chief examination that he had seen one P.V.Mathew. So, with the permission of the court, the Public Prosecutor put leading questions, wherein he had stated that the said P.V.Mathew was residing in Koothattukulam and was doing furniture business. However, the address of the said Mathew was not stated by PW3. PW3 has no case that the applicant in Ext.P1 is the person he mentioned as P. V. Mathew. 8. PW4, yet another Clerk in the same Bank, would depose that the appellant was the Manager of the Bank during 1993 and that as requested by the appellant Ext.P1(c) hypothecation agreement and Ext.P1(d) agreement was prepared by him. He was examined by the Prosecution also to depose that at the time when Ext.P1(c) and P1(d) were prepared the loanee was not present in the Bank. But he stated that he didn't remember whether the loanee was present in the Bank or not. Therefore, the Public Prosecutor sought permission to put Crl.A.No.1900/2004 12 leading questions to the witnesses and did so. But nothing was disclosed to show that the loanee was absent or present in the Bank at the time when Ext.P1(c) and P1(d) were prepared by him. He would further depose that Exts.P1(c) and P1(d) were handed over to the respondent. 9. PW5 is yet another Clerk employed in the Bank. He would depose that the respondent was the Manager of the Bank and that on 24.12.1993 he was working as Cashier in the Bank and that a sum of Rs.25,000/- withdrawn as per Ext.P6 from the Savings Bank A/c was paid by him and that he had initialled over Ext.P6. He was examined by the prosecution to bring on record that Ext.P6 was prepared by the respondent and that the amount thereon was handed over to the respondent. Though he deposed that Ext.P6 is in the handwriting of the respondent, he didn't support the prosecution that the amount was handed over to the respondent. So, he was also cross examined by the Prosecutor with the permission of the court. But, nothing was revealed out to conclude that the respondent had acknowledged the amount as per Ext.P6. There is also nothing brought to show that the Crl.A.No.1900/2004 13 applicant in Ext.P1 had accepted the amount. 10. PW6 is yet another Clerk employed in the Bank when the respondent was working as the Manager. He would depose that Ext.P7(a) pay-in-slip was prepared by him as requested by the respondent and that the respondent had only mentioned about the Account Number. According to him, as on the date of Ext.P7(a) dated 12.7.1994 the respondent was the Manager of the Bank. The evidence of PW6 that the respondent was the Manager on 12.7.1994 is not correct in the light of the evidence of PW1 that he took charge as Manager in May 1994 which I find no reason to disbelieve. However, he stated that he didn't remember whether the respondent was present in the Bank at the time when Ext.P7(a) was prepared. He would further depose that he was asked by the respondent to calculate the amount due for closing the disputed loan account and he calculated the due amount as Rs.3,158/- and that the respondent requested him to transfer the amount in the Savings Bank A/c to the loan account. But he declined to transfer the same as there was no proper request. Crl.A.No.1900/2004 14 11. PW7 would depose that he was working as Superintendent in the Municipal Office at Thodupuzha as on the date of examination and that during 1994-95 he was working as Revenue Inspector. He had proved Ext.P12, the attested copy of the Assessment Register relating to House No.86 in Ward No.22. According to him, one Meeran Moideen, Kainikkal owned and occupied the building bearing door No.22/86. The House Number shown in Ext.P1 application is 86 in Ward No.22. This witness was examined to bring on record that the said house is not at all belonging to the applicant in Ext.P1 loan application or that the loanee was occupying the same. The evidence of PW7 that Meeran Moideen was the owner and occupier of House No.22/86 remains unimpeached. The evidence of PW7 would convincingly establish that the address in Ext.P1 is not that of the loanee in Ext.P1. 12. PW8 is a dealer in ration shop bearing No.ARD-10. He would depose that the said ration shop is situated at Muthalakodam and that there is no ration card holder by name P.V.Mathew, Palliparambil. But his evidence would show that he Crl.A.No.1900/2004 15 was not aware whether there is another ration shop in the same ward or not. 13. PW9 is one Mathew, son of Avirah Varkey. He was examined by the prosecution to bring on record that he is residing in Pallipparambil at Koothattukulam and he had not filed Ext.P1 application for loan. The respondent has no case that PW9 is the applicant in Ext.P1 loan application. 14. PW10 would depose that he was working as Extra Departmental Delivery Agent at Muthalakodam Post Office for about 15 years and that he obtained Ext.P8 letter for delivery to the addressee P.V.Mathew, S/o.Varkey, Pallipparambil, Muthalakodam, Thodupuzha. According to him no such person is residing within the territory of the said Post Office. So Ext.P8 was returned with due endorsement. Though PW10 was subjected to a searching cross examination, nothing was revealed out to show that any person in the address shown in Ext.P1 application is residing within the Muthalakodam Post Office. It is true that it was revealed out that there are two Crl.A.No.1900/2004 16 Beats in the said Post Office and he was working in Beat No.2 and he had worked only for a few months in Beat No.I. But that is not at all a reason to arrive at a conclusion that any person as shown in Ext.P1 application is residing within the said Post Office. 15. PW11, would depose that he was working as Assistant Government Examiner of questioned documents at Hyderabad and that he received the specimen writing of the respondent along with the disputed signatures in Ext.P1, P1(a), P1(b), P1(c), P1(d), P3, P3(b), P6, and P6(a) and that he compared the disputed signature with the writings of the respondent and arrived at a finding that the author of the disputed signature in the above documents is the author of the specimen writings, which was marked as Ext.P13 series. Ext.P14 is the opinion given by PW11. Ext.P14(a) is the reasoning given by PW11 to arrive at Ext.P14 opinion. Though PW11 was subjected to a very searching cross examination, no material was disclosed to disbelieve PW1 or to reject Ext.P14. Crl.A.No.1900/2004 17 16. PW12 would depose that during 1995, he was working as Deputy Divisional Manager, Vigilance in Syndicate Bank Divisional Office at Ernakulam and he was asked to conduct an enquiry regarding the applicant in Ext.P1 and that he had conducted an enquiry and found that there is no such person residing in House No.86 in Ward No.22 of the Thodupuzha Municipality, which is the address in Ext.P1 and that Ext.P15 is the report given by him. PW14 is an attester to Ext.P13 specimen signatures. 17. PW15 would depose that he was the Assistant Manager in Syndicate Bank, Thodupuzha Branch and that he had attested the signature of the account holder in Ext.P3(b) specimen signature card and that the said card was prepared by the respondent and that the respondent is the person who had introduced the account holder. 18. I had earlier mentioned that the respondent did not dispute that the loan was sanctioned in pursuance to Ext.P1 loan application and the amount therein was credited in the Crl.A.No.1900/2004 18 Savings Bank account from where it was withdrawn through Ext.P6. The handwritings in the loan application and other connected documents including Ext.P6 are proved to be that of the respondent. The respondent had signed introducing the loan applicant for opening the Savings Bank account. The evidence of PWs.1, 2, 7, 8, 10 and 12 would show that, there is no person living in the address shown in Ext.P1 loan application. According to the respondent, though there was such a person, he had gone abroad and that matter was duly intimated to the Bank and respondent had noted the same in the ledger. It is not disputed that the house number shown in the loan application is 86 in Ward No.22 in Thodupuzha Municipality. The evidence of PW7 which I mentioned earlier would convincingly establish that the said house was owned and occupied by Meeran Moitheen and not by the applicant in Ext.P1 loan application. The evidence of PW10 also would show that no person in the address given in Ext.P1 loan application is residing within the Muthalakodam Post Office. PWs. 1, 2, and 12 had made a local enquiry and arrived at a conclusion that no person with the name and address shown in Ext.P1 loan application is living in Crl.A.No.1900/2004 19 the address therein. On a critical analysis of the evidence of the above witnesses, I fail to find anything to diverge with the conclusion arrived by the learned Special Judge. Though the respondent had got a case that such a person is residing in the address shown in Ext.P1 and subsequently he had changed his address, the respondent could not produce any document to support his defence. Of course, the respondent has no burden of proof. But the question is whether the respondent could impeach the evidence of the above witnesses. The evidence of PWs. 16 and 9 would show that during the investigation, it was revealed that one Mathew, S/o.Varkey, Pallipparambil house is residing at Koothattukulam. That Mathew was examined as PW9. But he was not the applicant in Ext.P1 loan application. The respondent, as stated earlier has also no case that PW9 is the applicant in Ext.P1 loan application. Though prosecution examined PW8 to bring on record that no ration card holder in the address shown in Ext.P1, the evidence of PW8 is not at all reliable to arrive at such a conclusion. According to PW8, he was not aware as to whether there is any other ration shop in Ward No.22. Therefore, his evidence cannot be taken as a Crl.A.No.1900/2004 20 conclusive proof. But, when other evidence is considered, the evidence of PW8 lends support. 19. To corroborate the evidence of PW1, 2, 7, 10 and 12, the prosecution would rely upon the evidence of PW3 and PW6. The evidence of PWs.3 and 6 coupled with Ext.P7 and P7(a) would show that on 6.6.94 and 12.7.94, Rs.20,000/- and Rs.3158/- respectively were deposited in the loan account by the respondent. The respondent summoned PW3 to his house and handed over the amount to PW3 for remitting in the disputed account and thus Rs.20,000/- was deposited on 6.6.94 through Ext.P7 pay-in slip. The evidence of PW6 would show that on 12.7.94 the respondent made a request to calculate the outstanding dues as per the loan account. Accordingly, PW6 calculated the amount due in the loan account as on that date at Rs.3,158/- and at the request of the respondent, Ext.P7(a) pay-in slip was prepared by PW6 and entrusted it to the respondent on the basis of which the deposit was made. Of course, there is no evidence to come to a conclusion as to who actually deposited the amount as per Ext.P7(a) though Ext.P7(a) was prepared as Crl.A.No.1900/2004 21 requested by the appellant. In the normal course, if the account- holder was present he would have filled it up. In this view of the matter it is legitimate to presume that no account-holder was present and the remittance was by the respondent. It is pertinent to note that the remittance as per Ext.P7 and P7(a) were much after the respondent leaving the post of the Manager and PW1 assuming the Office of the Manager in