IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 Crl.Rev.Pet.No. 90 of 2002() ---------------------------- CC.614/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI CRA.31/1999 of I ADDL.SESSIONS COURT, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- RAMACHANDRAN,AGED 46 YEARS, S/O.NARAYANA MENON,C.C.NO.VIII/2124,PUTHIYA ROAD, MATTTANCHERRY VILLAGE. BY ADV. SRI.T.K.PANKAJASHAN PILLAI SRI.SAJI PANKAJAKSHAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.90 OF 2002 --------------------------------------------- Dated 19th July, 2010 O R D E R Petitioner was convicted and sentenced for the offences under Section 420 and 468 of Indian Penal Code by Judicial First Class Magistrate-II, Kochi in C.C.614/1995. Petitioner challenged the conviction and sentence before the Sessions court, Ernakulam in Crl.A.31/1999. Learned Additional Sessions Judge on re- appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the appeal. 2. PW1, Manager of Kochi Branch of State Bank of India filed Ext.P1 complaint before Sub Inspector of Police, Mattancherry, based on which Ext.P22 FIR CRRP 90/02 2 was registered. Under Ext.P22 FIR, crime No.13/1995 was registered against the five accused stated in Ext.P1 for the offences under Sections 468 and 420 of Indian Penal Code read with Section 34 of Indian Penal Code. PW6, the investigating Officer, based on the investigation submitted a report deleting the other four accused, except the petitioner from the array of accused and also deleted the offence under Section 34 of Indian Penal Code. After completing the investigation, charge was laid against the petitioner which was taken cognizance by the learned Magistrate. Petitioner pleaded not guilty. Prosecution examined six witnesses and marked 22 exhibits. On the side of the petitioner, Ext.D1 copies of lorry receipts were marked and DW1, his brother was examined. Based on the evidence learned CRRP 90/02 3 Magistrate found the petitioner guilty and convicted and sentenced him for both the offences. Learned Sessions Judge on re- appreciation of the evidence, confirmed the conviction. Learned counsel appearing for the petitioner would contend that there is no legal evidence to convict the petitioner and the trial court and the appellate court did not appreciate the evidence in the proper perspective and therefore, the conviction is not sustainable. Learned counsel would argue that appreciation of evidence was perverse and Ext.P18 letter was relied on by the courts below without legal proof. So also Ext.P19 which is only a photocopy of a statement was relied on as if, it is the statement of the petitioner admitting the offence and therefore, the conviction is illegal. CRRP 90/02 4 3. Learned Public Prosecutor argued that evidence of Pws.1 and 2 establish that no consignment was sent and though Exts.P5, P9 and P13 bills were produced before the Bank for discounting, along with Exts.P6, P10 and P14 lorry receipts and Exts.P8, P12 and P16 insurance certificates. It is pointed out that evidence of PW2 establishes that he had gone to Bilaspur and Delhi and found that there is no Rishi Agencies, who allegedly issued Exts.P5, P9 and P13 bills and Ext.P18 show that Savitha Roadlines who allegedly issued Exts.P6, P10 and P14 lorry receipts were not functioning after 1986 and those receipts are not genuine and in such circumstances, the conviction perfectly legal. 4. Prosecution case is that petitioner as Proprietor of the proprietary concern CRRP 90/02 5 M/s.Chandra Enterprises applied for cash credit facility which was originally granted for Rupees Two Lakhs and thereafter enhanced to Rupees Three Lakhs and then to Rupees Five lakhs and finally on his application in December 1991, the facility was extended to Rupees Twelve Lakh and petitioner thereafter produced four bills for discounting to a tune of Rs.9.19 Lakhs and those bills were paid and later on 31/12/1991 another bill for Rs.2.1 Lakh was again discounted by the bank and proceeds were credited to the account of the petitioner and that bill was drawn by NamChandh Vijayakumar of Delhi. On 30/1/1992 two bills each for Rs.2,77,500/- were produced and and those bills were also issued by the same Namchand Vijayakumar and the supporting invoice, lorry receipts and transit insurance CRRP 90/02 6 certificates were produced and when those bills were forwarded, they were returned as not paid and petitioner was asked to pay the amount and then petitioner represented that he had other orders and brought Exts.P5, P9 and P13 bills for aggregate of Rs.7.51 Lakhs and believing the representation that they are genuine, they were allowed to be discounted and those bills were sent for collection. But under Ext.P17 they were returned with the endorsement, bills were not paid. According to Ext.P1 complaint, PW2 Manager was deputed to conduct an enquiry and he went to Delhi and Bilaspur and found that there is no Rishi Agencies and the goods consigned were not at Delhi or Bilaspur as shown in Exts.P4, P10 and P14 lorry receipts. Therefore, Bank got convinced that they are forged receipts and bills. Ext.P1 complaint was CRRP 90/02 7 then filed. 5. Final report submitted by the investigating officer does not disclose that apart from the enquiry conducted by PW2, the Investigating Officer conducted any investigation worth the name. 6. Learned Magistrate and learned Sessions Judge relied on Ext.P18 to find that Savitha Roadlines who issued Exts.P6, P10 and P14 were not functioning in July 1992 and therefore, they are forged receipts. Learned Magistrate and learned Sessions Judge also relied on Ext.P19, which is only a photocopy of a letter/statement allegedly given by the petitioner. Question is whether Exts.P17 and P18 could have been relied on by the courts below without proper proof. 7. Ext.P1 complaint shows that when CRRP 90/02 8 Exts.P5, P9 and P13 bills were returned without payment, the Manager of the bank addressed the Head Office of Savitha Roadlines, with copy of Exts.P6, P10 and P14 lorry receipts to find out whether they are genuine, Ext.P18 is the reply received thereafter. It is dated 5/3/1993 and addressed to Assistant General Manager, State Bank of India, Kochi. True, Ext.P18 shows that Savitha Roadlines was not functioning after April 1986 and the receipts being issued by Savitha Roadlines is not like Exts.P6, P10 and P14 receipts produced by the petitioner before the bank. Question is whether Ext.P18 letter is proved. Though PW1 was examined, even the letter sent by the bank, for which Ext.P18 reply was sent, was not produced. Ext.P18 letter is seen signed for Savitha Roadlines by its manager, though his name is not shown. PW6, CRRP 90/02 9 Investigating Officer had not investigated about Ext.P18 much less, the correctness of the statement therein. At the same time, when DW1 was cross examined, what was suggested to DW1 was only that Savitha Roadlines was not functioning after 1991. Ext.P18 could not have been relied on by the courts below, without proof of the document. As the manager who issued Ext.P18 or any other official of Savitha Roadlines was examined, Ext.P18 stands not proved. Therefore, no reliance could be placed on Ext.P18. 8. Ext.P19 was produced, at the time of evidence, as a photocopy of the statement furnished by the petitioner. Photocopy cannot be admitted as secondary evidence without establishing that primary evidence is not available. Evidence of PW1 through whom CRRP 90/02 10 Ext.P19 was marked, show that original of Ext.P19 is available with the bank at Chennai. Without producing the original, Ext.P19 photocopy cannot be admitted in evidence and cannot be relied on. Therefore, Ext.P19 also could not have been relied on by the courts below. 9. What remains is only the evidence of Pws.1 and 2 and PW6. Pws.3 and 4 are only witnesses to Ext.P20 mahazar. PW5 is the Joint Director of Kerala Forensic Science Laboratory, who furnished Ext.P21 report on examination of the documents sent to him. Ext.P21 with the evidence of PW5 only establish that signature found as that of the proprietor in Exts.P5, P9 and P13 bills as well as the lorry receipts and the insurance certificates are that of the petitioner Even without the evidence of the CRRP 90/02 11 expert, those signatures are admitted. Those signatures are the signatures of the petitioner, capacity as the proprietor of the proprietary concern. Therefore, evidence of Pws.5 and Ext.P21 also does not establish the offences alleged against the petitioner. 10. Evidence of PW2 was acted upon by the courts below to hold that there was no Rishi Agencies who issued Exts.P5, P9 and P13 bills. Oral evidence of PW2 is insufficient to establish that there was no Rishi Agencies or that there was no office for Savitha Roadlines at New Delhi or Bilaspur. Though PW2 deposed that he has submitted report, the report was not seen marked, though in fact, the report is seen among the records produced by the prosecution. But no attempt was made to prove that report. PW6, who should have investigated CRRP 90/02 12 on these aspects including the question whether Rishi Agencies is functioning or not and Savitha Roadlines was defunct or was having office at Delhi or Bilaspur did not conduct any investigation. PW1 has no personal knowledge on these aspects. His evidence only show that Exts.P5, P9 and P13 bills were produced along with the supporting lorry receipts and invoices and insurance certificates. He did not verify whether those receipts were genuine and whether goods were sent as seen in Exts.P6, P10 and P14. Even though PW1 alleged that Exts.P8, P12 and P16 insurance certificates are also forged, PW6 did not conduct any investigation on that aspect. None of the officers of the Insurance company who issued Exts.P8, P12 and P16 certificates were examined. Therefore, there is no legal evidence to prove that Rishi Agencies CRRP 90/02 13 who issued Exts.P5, P9 and P13 receipts is not in existence or the receipts are not genuine or that they did not issue Exts.P5, P9 and P13. There is also no legal evidence to prove that Savitha Roadlines who issued Exts.P6, P10 and P14 was not functioning during 30/7/1992 or that those lorry receipts are forged lorry receipts. Similarly, there is no evidence to prove that lorry receipts were issued without the supporting goods sent thereunder. As pointed out by the learned counsel appearing for the petitioner, it cannot be presumed that Exts.P8, P12 and P16 which are insurance certificates, issued by Nationalized Insurance Company are not genuine or that there was no such articles which were insured as shown in the certificates. The insurance company should have verified the goods and then only insured CRRP 90/02 14 them and issued the certificates. There is no evidence to show that insurance certificates were not issued in accordance with the rules. In such circumstances, it can only be found that prosecution did not succeed in establishing that Exts.P5, P9 and P13 bills, Exts.P6, P10 and P14 lorry receipts, Exts.P8, P12 and P16 insurance certificates and the invoices were forged. Therefore, conviction for the offence under Section 468 of Indian Penal Code is unsustainable. Similar is the case with the conviction for the offence under Section 420 of Indian Penal Code. When there is no evidence to prove that Exts.P6, P10 and P14 lorry receipts or Exts.P5, P9 and P13 bills were forged or that petitioner induced the Bank to part with money, it can only be held that prosecution did not establish that petitioner CRRP 90/02 15 cheated the bank by inducing the bank to discount the bills without sending the goods as shown in the respective lorry receipts. Hence conviction for the offence under Section 420 of Indian Penal Code is also not sustainable. Revision is allowed. Conviction of the petitioner for the offence under Sections 468 and 420 of Indian Penal Code is set aside. Petitioner is found not guilty of the offences. He is acquitted. The bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR, JUDGE. uj.