IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 CRL.A.No. 642 of 2003() ---------------------------------- CC.2/1997 OF SPECIAL COURT (SPE/CBI)-I, ERNAKULAM .................... APPELLANT/ACCUSED: ---------------------------------- R. KRISHNANKUTTY NAIR, FORMERLY OFFICER, UNION BANK OF INDIA, NIRMALALAYAM, T.C.NO.28/2775, CHETTIKULANGARA, THIRUVANANTHAPURAM. BY ADV. SRI.B.RAMAN PILLAI, SRI.GEORGE PHILIP, SRI.R.ANIL, SRI.RAJU RADHAKRISHNAN, SRI.ANIL K.MOHAMMED. RESPONDENT/COMPLAINNAT: --------------------------------------------- C.B.I., COCHIN, REPRESENTED BY THE CENTRAL GOVERNMENT STANDING COUNSEL. BY ADV. SRI.MVS.NAMBOOTHIRY, SC, CBI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2011, ALONG WITH CRA NO.646 OF 2003 AND CRA NO. 651 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.S.GOPINATHAN, J. ====================== Crl.A. Nos.642, 646 & 651 of 2003 ====================== Dated this the 9th day of March, 2011. COMMON JUDGMENT In all the appeals, the appellant is common. He was the accused in C.C. No.19 of 1996, C.C. No.2 of 1997 and C.C. No.3 of 1997 on the file of the Special Judge (SPE/CBI)-I Ernakulam. He was prosecuted by Superintendent of Police, SPE/CBI-Kochi, through PW22, the Inspector of Police alleging offences under Sections 409 and 477 A IPC and Section 13 (1) (C) read with 13 (2) of the Prevention of Corruption Act, 1988 (in short 'PC' Act). The Special Judge found him guilty for the above said offences and sentenced to rigorous imprisonment for 3 years each and also a fine of Rs.50,000/- under Section 409 of IPC with a default sentence of rigorous imprisonment for 6 months. Assailing the conviction and sentence in C.C. No.19 of 1996, Crl. Appeal No. 651 of 2003 was filed. The other appeals are against the conviction and sentence in C.C. Nos.2 and 3 of 1997 respectively. Crl.A.Nos.642/2003 etc. 2 2. The prosecution case in brief is that, the appellant was employed as an Officer in Union Bank of India and as such he was a public servant as defined under Section 2(C) of the PC Act. The Bank had branches at Kazhakkoottam and Attipra. The Kazhakkoottam Branch had an extension counter in the compound of Al-Uthuman English Medium Residential High School. Attipra Branch had an extension counter in the compound of the Layola College. From 15.10.1992 to 18.7.1994, the appellant was the Officer in the extension counter of the Layola College. From 2.12.1994 to 23.9.1995, he was working in the same capacity at the Al-Uthuman extension counter. In Layola College extension counter the appellant had Savings Bank Account with No.1130. He had another account along with his wife V.Latha, who was examined as PW.21 and mother-in-law Vilasini Amma with No.1162. PW.20 Raveendran Nair was the neighbour of the appellant. He had entrusted Rs.50,000/- with the appellant. The appellant deposited the same in fixed deposit. Simultaneously a Savings Bank Account with No.1354 was opened in the name of PW.20. In Al Uthuman extension counter also the appellant had a Savings Bank Account with No.1130. Crl.A.Nos.642/2003 etc. 3 He had another account along with his wife, having No.1114. According to the prosecution, in addition to the appellant as Officer, there was a Cashier-Cum-Clerk in both the extension counters. The appellant, being the Officer, was in custody of the cash and the registers of the Bank. The appellant, abusing his position as a public servant, having the dominion over the cash and account books, falsified the account books of the Bank relating to the above accounts as well as the accounts of certain other customers and committed breach of trust of a sum of Rs.6,700/- in account NO.1130 from 15.10.1992 to 14.10.1993. During the said period, he committed breach of trust of an amount of Rs.2,36,767.50 in account No.1162 and thereby he had pecuniary advantage of that much amount. That is the allegation in C.C.No.2 of 1997. 3. In C.C.No.3 of 1997 the allegation is that from 15.10.1993 to 18.7.1994, he falsified the accounts in SB Account No.1130 and other accounts in respect of certain customers and committed breach of trust of a sum of Rs.53,393.75. In respect of Account No.1162, during the said period he committed breach Crl.A.Nos.642/2003 etc. 4 of trust and mis-appropriation of an amount of Rs.1,13,993.15. In respect of account No.1354, he forged the cheques and vouchers in the name of PW.20 Raveendran Nair in whose name that account was opened and committed breach of trust of Rs.84,847/- and thereby he had undue pecuniary advantage of those amounts. 4. In C.C.No.19 of 1996, the allegation is that from 2.12.1994 to 23.9.1995 he falsified the accounts, cheques and vouchers in Account No.1130 and in certain accounts relating to other customers and had committed breach of trust of a sum of Rs.3,15,952/-. During the the same period, he falsified the Accounts in account No.1114 and the accounts relating to certain other customers and misappropriated sum of Rs.46,000/- and had undue pecuniary advantage of that much amount. 5. The prosecution would alleged that to screen the above breach of trust and misappropriation, the appellant had falsified the accounts of the Bank and false withdrawal slips and cheques were forged. In October 1995, PW.12, the Chief Manager in Crl.A.Nos.642/2003 etc. 5 charge of the Bank obtained some information about the misappropriation and falsification of accounts. He deputed an audit team headed by PW.13, the Manager Audit, Madras zone. PW.13 and the party audited the accounts whereby the falsification of accounts and misappropriation were revealed out. According to the prosecution, anticipating serious actions, the appellant remitted the above said amount in 3 instalments. He had also submitted Exts.280 and 281 submissions before PW.16, the Assistant General Manager, Regional Office, Trivandrum, wherein he confessed. Though he had remitted the misappropriated accounts, the matter was reported to the Central Bureau of Investigation following which they conducted a preliminary enquiry. On the basis of the report of enquiry, PW.22, then Inspector registered two cases as RC 1 (A) of 1996 and RC 2(A) of 1996 for which Exts.P546 and P556 First Information Reports were prepared. PW.22 took over the investigation. On completing the investigation, he arrived at a conclusion against the appellant. Consequently, he obtained sanction to prosecute the appellant. Ext.P544 order was issued by PW19, the General Manager according sanction to prosecute Crl.A.Nos.642/2003 etc. 6 the appellant in RC 1(A) of 1996. The final report in C.C.No.19 of 1996 was filed in RC 1(A) of 1996. For prosecuting the appellant in RC 2(A) of 1996, PW.14, the Deputy General Manager issued Ext.P517 sanction order. After obtaining sanction, two final reports were filed in RC 2(A) of 1996, i.e., C.C.Nos.2 and 3 of 1997. The learned Special Judge took cognizance and issued process responding to which the appellant entered appearance. Copies of the final reports and connected records were furnished. Upon hearing the prosecution and the appellant, the learned trial Judge found that there are materials to send the appellant for trial. Consequently, separate charges were framed. When the particulars of the charge were read over and explained, the appellant pleaded not guilty. Hence, he was sent for trial in all the three cases. At the request of the appellant, which was not opposed by the prosecution, all the three cases were tried jointly by order dated 2.3.2001 in C.C.No.19 of 1996. The evidence was recorded in that case. On the side of the prosecution, PWs.1 to 24 were examined and Exts.P1 to P577 were marked. After closing the evidence for the prosecution the appellant was questioned Crl.A.Nos.642/2003 etc. 7 under Section 313(1)(b) of the Code of Criminal Procedure. The appellant denied the incriminating circumstances. He admitted the status as a public servant and that he was working in the extension counters of the Bank mentioned earlier. He had further submitted that he had already remitted the amount alleged to have been misappropriated by him and sought for leniency. Though he was called upon to enter his defence, no defence evidence was adduced. The learned Special Judge on appraisal of the evidence arrived at a finding against the appellant. Consequently he was convicted and sentenced as above. 6. PW1 was the cashier employed in the Bank during the year 1994-1995. He had deposed that the appellant was the Officer during the above said period in the extension counter, Kazhakoottam and that himself and the appellant alone were employed in the Bank and that PW1 had the duty to take remittance of the cash and disburse the cash and that the appellant had the duty to supervise his services, to tally the cash, vouchers and other connected documents. He would also depose Crl.A.Nos.642/2003 etc. 8 that as Officer in the Bank the appellant had the duty to make entries in the Savings Bank Ledgers, cash scroll, transfer scroll and supplementary scroll. He would further depose that for making deposit the customers had to submit a voucher and for withdrawing the amount they had to submit the cheque and that the cash for remittance would be accepted by PW1 with voucher. Cashier had to make entries in the cashier's scroll and the voucher would be sent to the Officer for making entries in the Savings Bank Ledger and the Officer had to put ledger folio number in the vouchers and after that the vouchers would be safely kept in the Bank and it would be verified for preparing the supplementary register. For withdrawing money from the Savings Bank Account, the customer had to submit a withdrawal form or to give the cheque signed and then it would be given to the Officer who is to make entries in the cash scroll and ledgers. Thereafter the cash scroll entry and ledger folio entry would be made over the voucher or cheque, as the case may and then it would be sent to the cashier for disbursing the amount. The cashier would disburse the amount after making entry in the Crl.A.Nos.642/2003 etc. 9 cashier's register. 7. PW1 would further depose that Ext.P1 is the savings Bank ledger maintained in the Bank extension counter and that Ext.P1(a) is the ledger entry regarding Savings Bank Account No.1114 opened in the name of the appellant and his wife V.Latha. It was an either or survivor account and that the account was opened on 2.12.1994 by making an initial deposit of Rs.1,00/- as per credit voucher which was marked as Ext.P2. It was duly entered in Ext.P3 cash scroll as well as in Ext.P1(a). On 2.12.1994, a sum of Rs.1,800/- was credited in the account and Ext.P5 is the credit voucher and it was signed by the appellant and that the amount was transferred from some other account. The remittance was also noted in Ext.P6 transfer scroll. Thereafter, on the same day there is another credit entry in Ext.P1(a) ledger but such entries are not seen in Ext.P3 cash scroll or in Ext.P4 cashier's scroll. According to PW1, if there was actual remittance of that much amount there should have entries in the cashier's register and cash scroll. If it was credited by transfer, it should have found a place in Ext.P6 Crl.A.Nos.642/2003 etc. 10 transfer scroll. Neither the cashier's register, nor cash scroll, nor transfer scroll would contain such credit entry. Therefore, it was a bogus credit. It was further deposed that on 19.12.1994 by Ext.P7 withdrawal slip the appellant withdrew a sum of Rs.1,000/- for which necessary entries were made in the ledger and cash scroll. On 19.12.1994 there was a withdrawal of Rs.2,000/- but there is no entry in cash scroll or in cashier's register. It was the duty of the appellant to make necessary entries in Ext.P1(a) ledger folio which was in the handwriting of the appellant. But no such entry was made by the appellant. 8. On 23.12.1994 and 24.12.1994 there are withdrawals of Rs.2,000/- each for which necessary entries were made in the relevant registers. On 24.12.1994, in Ext.P1(a) there is a withdrawal entry of Rs.1,000/- but without any corresponding entry in other records. According to PW1, it was a fake withdrawal. On 27.12.1994, by Ext.P12 withdrawal slip the appellant had withdrawn a sum of Rs.2,000/-. Ext.P12 was passed by the appellant and it contains his handwriting. But, he had not made corresponding entry in Ext.P1(a) though he was Crl.A.Nos.642/2003 etc. 11 duty bound to record the same. The appellant had acknowledged the amount as per Ext.P12 after avoiding entry in Ext.P1(a). The appellant avoided accounting of that much amount. The balance as on the date in the account was only Rs.339.20/-. The balance being that much amount the appellant had passed the withdrawal voucher to withdraw Rs.2,000/-. It is a withdrawal with no such amount in the account. The omission to make entry in the ledger is with fraudulent intention to hide the withdrawal. On 28.12.1994, PW1 was on leave. Ext.P14 is the attendance Register. In Ext.P14, the appellant had noted 'CL' as against the name of PW1. He had also made entry in Ext.P1(a) that Rs.10,000/- was credited to his account by transfer and that entry was made in Ext.P6 transfer scroll by the appellant but it is mentioned as deposited in Savings Bank Account . But in Exts.P3 cash scroll and P8 cashier's scroll which were written by the appellant no such entry was made. The prosecution would alleged that the credit entry of Rs.10,000/- on that day in Ext.P1(a) ledger was fraudulent without actual remittance. Crl.A.Nos.642/2003 etc. 12 9. On 28.12.1994, a sum of Rs.5,000/- was withdrawn by Ext.P15 withdrawal slip which was written and signed by the appellant. It was passed by the appellant after putting the ledger folio number. The withdrawal was recorded in Ext.P3 cash scroll and Ext.P8 cashier's scroll. The appellant had acknowledged the receipt of the amount on the withdrawal slip. But he had omitted entry in Ext.P1(a) ledger. The appellant who had been maintaining the ledger was bound to record the same in Ext.P1(a). 10. On 30.12.1994 appellant had withdrawn a sum of Rs.7,000/- from the said account by Ext.P17 withdrawal slip which was written and signed by the appellant. The appellant had passed the same. He had entered the ledger folio number and the payment was made by PW1. The same was acknowledged by the appellant under his signature over Ext.P17. Entries were duly made in the ledger as well as in the other registers. It is a genuine transaction. Crl.A.Nos.642/2003 etc. 13 11. On 3.12.1994, by Ext.P18 withdrawal slip prepared and signed by the appellant, he withdrew a sum of Rs.1,000/-. The entries were made in the relevant registers. The withdrawal is a genuine one. But, according to the learned Public Prosecutor, such withdrawal was possible only because of the bogus credit of 10,000/- on 28.12.1994. That argument is convincing. 12. PW1 had further deposed that without corresponding entries in the cash scroll, transfer scroll and cashier's register, the appellant had made a debit entry of Rs.2,000/- in Ext.P1(a) on 3.1.1995. On 7.1.1995 by Ext.P19 credit voucher Rs.15,000/- was remitted in the account. Though there are corresponding entries in the cashiers scroll and cash scroll, no entry was made in Ext.P1(a) ledger. On 11.1.1995 a sum of Rs. 299.85/- was credited by the appellant by Ext.P20 voucher and sum of Rs.50/- was withdrawn by Ext.P21 withdrawal slip which was prepared and signed by the appellant. Corresponding entries were made in the ledger and other records. On 12.1.1995, a sum of Rs.75/- was credited in the account of the appellant with entries in the Crl.A.Nos.642/2003 etc. 14 ledger and connected records. So also, on 16.1.1995, a sum of Rs.2,300/- was credited with relevant entries in the ledger and other records. There is yet another withdrawal of Rs.2,000/- on the same day. 13. On 17.1.1995 there is withdrawal of Rs.8,00/- by Ext.P25 withdrawal slip with entries in all the records. On the same day, the appellant recorded credit of Rs.3,000/- in Ext.P1 (a) ledger. But, no such credit is recorded in the cash scroll, cash supplementary or in the transfer scroll. Absence of entries in the relevant registers indicates that actually there was no deposit of that much amount on that day. On 19.1.1995 a sum of Rs.2,000.25 was withdrawn by Ext.P27 withdrawal slip which entry was recorded in all the relevant registers. Ext.P27 was written and signed by the appellant. The withdrawal was passed by the appellant. Amount was handed over to the appellant by PW1. Unless a credit entry of Rs.3,000/- was shown on 17.1.1995, there was no amount in the account of the appellant to withdraw that amount. On 21.1.1995, there is withdrawal of Rs.1,000/- on the basis of Ext.P28 withdrawal slip prepared and Crl.A.Nos.642/2003 etc. 15 signed by the appellant and the amount was acknowledged by the appellant. The withdrawal was also entered in all the relevant records. This withdrawal was also possible only if there was entry of deposit of Rs.3,000/- in the ledger. According to the prosecution, this bogus credit entry was made dishonestly to facilitate withdrawal of the amount of Rs.2,000/- on 19.1.1995 and Rs.1,000/- on 21.1.1995. On 25.1.1995 there is a credit of Rs.5,239.20/- by way of salary. A sum of Rs.2,300/- was withdrawn by the appellant on the basis of Ext.P31 withdrawal slip which was prepared and signed by the appellant. On 27.1.1995 there is yet another withdrawal of Rs.3,000/- by Ext.P38 withdrawal slip prepared and signed by the appellant. Those withdrawals were recorded in all the registers. 14. On 1.2.1995, by Ext.P37 voucher there is a withdrawal of Rs.1,000/-. Whereas the balance amount on that date was only Rs.193/-. The balance being only Rs.193/-, the withdrawal of Rs.1,000/- is not permissible. The appellant, irrespective of want of sufficient funds in the account, passed Ext.P37 and Crl.A.Nos.642/2003 etc. 16 signed the same. He had acknowledged the amount. He fraudulently omitted the entry in Ext.P1(a), though ledger folio number is noted on Ext.P37. On 3.2.1995, the balance outstanding in the account of the appellant was only Rs.193/-, but a sum of Rs.2,000/- was withdrawn by Ext.P39 withdrawal slip prepared and signed by the appellant. Without making entry of the withdrawal in Ext.P1(a) ledger, the appellant passed the payment and the ledger folio number was written over Ext.P39. PW1 had also deposed that the appellant had certified that transaction in cash supplementary and cash scroll. On 6.2.1995 as against outstanding balance of Rs.193/- the appellant had withdrawn a sum of Rs.2,000/- by presenting Ext.P41 withdrawal slip prepared and signed by the appellant without making debit entry in Ext.P1(a) ledger. The withdrawal was passed over Ext.P41 with ledger folio number and appellant had certified that transaction in the cash scroll and cash supplementary. On 9.2.1995 the amount outstanding in the account of the appellant was only Rs.2,277.85/-. But, he presented Ext.P43 withdrawal slip prepared and signed by him for withdrawing Rs.4,000/- and payment was passed without making entry in Ext.P1(a) ledger. Crl.A.Nos.642/2003 etc. 17 The cashier's register, cash scroll and cash supplementary were signed by the appellant certifying that transaction. On 11.2.1995, the balance amount outstanding in the account of the appellant was only Rs.277.85/- but he prepared and signed Ext.P45 withdrawal slip for withdrawing a sum of Rs.400/-. The payment was passed by the appellant under his signature with ledger folio number, but avoiding entry in Ext.P1(a) ledger. In the cash supplementary as well as in cash scroll, the appellant had certified the transaction. On 13.2.1995 the balance amount outstanding in the account of the appellant was Rs.277.85/-. He presented Ext.P47 withdrawal slip under his handwriting and signature for withdrawing Rs.1,000/-. It was passed by the appellant with corresponding ledger folio entry. But, he didn't make any entry in the ledger folio. On the same time, he had certified that transaction in the cash supplementary and cash scroll. On 14.2.1995 with a sum of Rs. 277.85/- as outstanding balance in the account of the appellant, Ext.P49 withdrawal slip was prepared and signed by him for withdrawal of sum of Rs.8,600/- and it was passed by him with ledger folio number and the amount was paid by PW1. It was acknowledged by the Crl.A.Nos.642/2003 etc. 18 appellant. Though the appellant had also certified that transaction in the cash supplementary as well as in cash scroll, it was not recorded in the ledger. 15. On 18.2.1995, appellant withdrew a sum of Rs.1,000/- by presenting Ext. P51 withdrawal slip under his handwriting and signature. It was also passed by the appellant. The transaction was certified in the cash scroll as well as in the cash supplementary. It is not revealed from the evidence as to whether there was entry in the ledger or not. On 21.2.1995 there is withdrawal of Rs.200/- by the appellant through Ext.P53 withdrawal slip. On 22.2.1995, the balance amount outstanding in the account of the appellant was Rs.77.85/-. But, he withdrew Rs. 1,000/- through Ext.P54 withdrawal slip prepared and signed by him. It was passed by him. The amount was paid to the appellant by PW1 and it was acknowledged by the appellant under his signature. The appellant had certified that transaction in the cash scroll as well as in cash supplementary, but he had not recorded that withdrawal in Ext.P1(a) ledger. Crl.A.Nos.642/2003 etc. 19 16. On 24.2.1995 there is withdrawal of Rs.5,000/- from the outstanding balance of Rs.5,414.65/-. On 4.3.1995, there is credit of Rs.1,800/-. On 22.3.1995, there is another credit of Rs.3,451.65/-. On 1.3.1995, there is withdrawal of sum of Rs.3,000/- through Ext.P60 withdrawal slip under the handwriting and signature of the appellant. The payment was passed by him without making ledger entry. The amount outstanding in the account of the appellant was only Rs.492.50. With that amount as balance in the account of the appellant, no withdrawal of Rs.3,000/- could be made. The appellant had certified that withdrawal in the cash supplementary as well as in cash scroll. But no debit entry was made in the ledger. A sum of Rs.1,000/- was withdrawn on 4.3.1995 through Ext.P62 withdrawal slip under the handwriting and signature of the appellant. The withdrawal was passed by the appellant and payment was acknowledged by him. Though he had certified the transaction in the cash scroll and in cash supplementary, the withdrawal was not entered in Ext.P1(a) ledger. On 6.3.1995 there is withdrawal of Rs.1,000/- through Ext.P64 withdrawal slip prepared and signed by the appellant. The withdrawal was Crl.A.Nos.642/2003 etc. 20 passed by the appellant with ledger folio number. But no entry was not made in Ext.P1(a) ledger. On the same time he had certified that transaction in cashier's scroll and cash scroll. On 8.3.1995 the balance amount out standing in the account of the appellant as per Ext.P1(a) ledger was only Rs.2,288.50/-. By filing Ext.P66 withdrawal slip prepared and signed by him, he withdrew a sum of Rs.3,000/-. He had not recorded that withdrawal in Ext.P1(a) ledger. Whereas he had certified that withdrawal in the cash supplementary as well as in the cash scroll. 17. On 10.3.1995, the balance amount outstanding in the account of the appellant was Rs.1,538.50. But he withdrew a sum of Rs.5,000/- through Ext.P68 withdrawal slip which was prepared by him but without his signature. The withdrawal was passed by him. The acknowledgment was signed by him over Ext.P68. No entry is made in the ledger. But, he had certified entries of transaction in the cash scroll and cash supplementary. On 21.3.1995, the balance outstanding in the account of the appellant was only Rs.38.50. But, he withdrew a sum of Crl.A.Nos.642/2003 etc. 21 Rs.2,000/- through Ext.P70 withdrawal slip prepared and signed by him. The payment was made by PW1 and it was acknowledged by the appellant under his signature on Ext.P70. The transaction was recorded in the cash scroll and cashier's register and cash supplementary. But in the ledger, the transaction was omitted. On 15.3.1995, 25.3.1995, and 29.3.1995 there are withdrawals of Rs.1,500/-, Rs.3,000/- and Rs.3,000/- respectively by separate withdrawal slips. On 30.3.1995 there is a withdrawal of Rs.6,490.15 through Ext.P77 withdrawal slip prepared and signed by the appellant. It was passed by the appellant and the amount was acknowledged by him under his signature. The payment was made by PW1. Corresponding entries were made in the cash scroll, cashier's register,