IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 CRL.A.No. 147 of 1999 ------------------------------------- CC.1/1998 of SPL.COURT SPE/CBI-II, ERNAKULAM .................... APPELLANT/ACCUSED: N.P.PRABHU, SENIOR MANAGER SYNDICATE BANK, ZONAL OFFICE, THIRUVANANTHAPURAM (NOW UNDER ORDER OF DISMISSAL), NOW RESIDING AT BRINDAVANAM, PONOTH ROAD, KOCHI - 17. BY ADV. SRI.C.S.MANU RESPONDENTS/COMPLAINANT & STATE: 1. CENTRAL BUREAU OF INVESTIGATION, KATHRIKADAVU, KOCHI - 17 REP. BY ITS SUPERINTENDENT OF POLICE. 2. UNION OF INDIA REP. BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI. BY ADV. SRI.N.NEELAKANTAN ELAYATH FOR R2 SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2010 ALONG WITH CRA NO.159 OF 1999, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.M.P. 663/1999 IN CRA 147/1999 DISMISSED 14.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.A.Nos.147 & 159 of 1999 --------------------------- COMMON JUDGMENT Appellant was the Manager of Syndicate Bank, Alappuzha Branch from 17.5.1993 to 10.6.1995. Earlier, he was the Manager of Kalamassery Branch of the same Bank. Appellant was convicted and sentenced for the offences under Sections 409, 465 and 471 of Indian Penal Code and Section 13(1)(c) and (d) read with Section 13(2) of Prevention of Corruption Act. Prosecution case is that while working as the Manager of Alappuzha Branch, appellant sanctioned loans to K.J.Joseph, Ramesh Kumar and Sasidharan Nair, who are fictitious persons. Rs.13,000/- sanctioned to K.J.Joseph, Rs.20,000/- sanctioned to Ramesh Kumar and Rs.14,300/- sanctioned to Sasidharan Nair were misappropriated by the appellant. 2. In C.C.No.1/1998, the case is in respect of the misappropriation in the names of K.J.Joseph, CRA 147 & 159/99 2 Ramesh Kumar and Sasidharan Nair. In C.C.No.2/1998, the case is that appellant misappropriated Rs.25,000/- each by sanctioning loans to Geetha and Rita, who are factious persons. Both the cases were jointly tried. Appellant pleaded not guilty. 3. Prosecution examined 39 witnesses and marked 144 exhibits. On the side of the defence, DW1 was examined and Exhibits D1 to D9 were marked. 4. Learned Special Judge (SPE/CBI)-II, Ernakulam, on the evidence, found the appellant guilty of the offences. He was convicted and sentenced to rigorous imprisonment for a period of three years and a fine of Rs.5,000/- for the offence under Section 409 of Indian Penal Code, rigorous imprisonment for a period of one year and a fine of Rs.1,000/- for the offence under Section 465 of Indian Penal Code, rigorous imprisonment for one year and a fine of Rs.1,000/- for the offence under Section 471 of Indian Penal Code and rigorous imprisonment for a period of three years and a fine CRA 147 & 159/99 3 of Rs.5,000/- for the offence under Section 13(2) of Prevention of Corruption Act, providing that in default of payment of fine, he has to undergo simple imprisonment for a period of three months in each of the offences. The substantive sentences were directed to be run concurrently. In both the cases separate sentences were awarded making it clear that the substantive sentences shall run consecutively. These appeals are filed challenging the conviction and sentence. 5. Crl.A.No.147/1999 is filed challenging the conviction and sentence in C.C.No.1/1998 and Crl.A. No.159/1999 is filed challenging the conviction and sentence in C.C.No.2/1998. Appellant would contend that learned Special Judge did not properly appreciate the evidence and the defence case was not even properly considered. It is contended that first ingredient of the charge in C.C.No.1/1998 is that loanees K.J.Joseph, Ramesh Kumar and Sasidharan Nair are fictitious persons and there is CRA 147 & 159/99 4 no conclusive evidence to prove that they are fictitious persons. It is also contended that trial court should not have accepted the evidence of postmen, bank staff and the Investigating Officer to hold that the loanees are fictitious persons and Exhibits D1 and D2 documents establish that loanees are not fictitious persons and instead, they have remitted the amount due to the Bank consequent to the decree passed against them and learned Special Judge ought to have found that non-examination of the Advocate, who issued Exhibits D1 and D2, is fatal to the prosecution and the burden is on the prosecution to prove that they are fictitious persons as alleged and therefore, the finding that loanees are fictitious persons is unsustainable. It is also contended that similarly, there is no evidence to prove that Geetha and Rita, the loanees in C.C.No.2/1998, are fictitious persons and the account opening form available shows that photograph of Geetha was affixed and the CBI has CRA 147 & 159/99 5 not taken proper steps to trace out that lady and in the light of the evidence, it is not possible to hold that all the loanees are fictitious persons as claimed. It is contended that as against the loanees, suits were instituted by the Bank for realisation of the amount and Exhibits D5 to D9 judgments in those suits establish that decree was granted in favour of the Bank for realisation of the amount against the loanees and no investigation was conducted as to whether summons in those cases were personally served on the loanees and they are fictitious or not and in the light of Exhibits D1 and D2, it can only be found that they are not fictitious persons. It is also contended that even though postmen were examined to prove that they could not trace out the addresses, to whom notices were sent by the Bank officials, that does not mean that loanees were not there in the addresses furnished to the Bank when loan applications were submitted and based on the subsequent event, it is CRA 147 & 159/99 6 not possible to hold that loanees are fictitious persons. It is argued that evidence of PW38, the expert and Exhibit P133 statement and Exhibit P134 reasoning should not have been relied on, as they are not conclusive. Appellant would contend that there is no conclusive evidence to prove that appellant either forged any documents or used the forged documents as if genuine or misappropriated any amount of the Bank in his capacity as the Manager of the Bank and he has not committed any breach of trust and therefore, the offences under Sections 409, 465 and 471 of Indian Penal Code and Section 13(2) of Prevention of Corruption Act are not attracted and the conviction is not sustainable. Learned counsel finally submitted that in any case, sentences awarded are excessive and there is no justification for directing that substantive sentences in the two cases shall run consecutively. CRA 147 & 159/99 7 6. Learned Special Public Prosecutor for CBI submitted that learned Special Judge elaborately considered the evidence and there is conclusive evidence to prove that appellant, misusing his position as the Manager of the Bank, created records as if loans were sanctioned to different persons and availed of the loan and misappropriated the same and evidence conclusively establish that the loan applications were prepared and loans were sanctioned and utilised by the appellant in the names of K.J.Joseph, Ramesh Kumar and Sasidharan Nair, Geetha and Rita and therefore, there is no reason to interfere with the conviction. 7. The fact that appellant was the Manager of Syndicate Bank, Alappuzha Branch during the relevant period and he had sanctioned loans in the names of K.J.Joseph, Ramesh Kumar, Sasidharan Nair, Geetha and Rita are admitted. The contention raised by the appellant is that they are not fictitious persons and the loans sanctioned to them were not CRA 147 & 159/99 8 misappropriated by the appellant and there is no sufficient evidence to conclusively establish the guilt and therefore, conviction is not sustainable. 8. The fact that Rs.13,000/- was sanctioned to K.J.Joseph as loan on Exhibit P12 loan application by the appellant is admitted. Exhibits P13 to P16 are the loan documents. The loan of Rs.13,000/- was disbursed by Exhibit P20 Demand Draft in the name of Bank of Baroda under Exhibit P18 debit slip. A Savings Bank Account was earlier opened in the name of K.J.Joseph under Exhibit P8 account opening form. Exhibit P10 is the initial deposit slip in that account and Exhibit P11 the ledger extract of the Saving Bank account. Exhibit P21 is the ledger extract of the loan granted under Exhibit P12 application. Exhibit P20 Demand Draft was credited to Exhibit P49 account of the appellant maintained in Bank of Baroda, Kalamassery Branch. It is admitted that Exhibit P49 is the account maintained by the appellant personally in that bank. CRA 147 & 159/99 9 Prosecution case is that K.J.Joseph is a fictitious person. Exhibit P8 Savings Bank account was opened in the name of that fictitious person as introduced by the appellant and the loan amount was also misappropriated by the appellant. 9. PW1, who was the Clerk of Kalamassery Branch of Syndicate Bank while appellant was working as the Manager, deposed that he was working there from 1992 onwards. Evidence of PW1 establishes that he was working in the Savings Bank Account Section then and petitioner was the Manager and a Savings Bank Account was opened in the name of K.J.Joseph while he was working there and the ledger entry regarding the account was initialed by him and the Savings Bank Account was opened by Exhibit P10 initial deposit slip for Rs.200/- and Exhibit P10 was prepared in the handwriting of the appellant. PW1 was not cross-examined on this aspect. Evidence of PW2, who was also a Clerk in that Branch, who was working as Cashier as well as Savings Bank CRA 147 & 159/99 10 Clerk and Loan Clerk, deposed that Exhibit P12 loan application in the name of K.J.Joseph was filled up by the appellant and the loan was also sanctioned by him and the loan documents were prepared by PW2 as instructed by the appellant based on Exhibit P12 application and to disburse the loan amount, a Demand Draft was also prepared and it was the appellant who introduced K.J.Joseph to the Bank to open the account. These facts are also not challenged. Exhibit P20 Demand Draft was encahsed through Exhibit P49 account in the name of the appellant maintained in Kalamassery Branch of Bank of Baroda. Evidence of PWs 4, 11 and 22 establish this fact. PW4 was the Manager of Kalamassery Branch of Bank of Baroda. His evidence establishes that Exhibit P20 Demand Draft was sent to the Bank by the appellant along with a letter to credit the amount to his account and the amount so collected was credited to Exhibit P49 account of the appellant. It is also established that out of the CRA 147 & 159/99 11 loan amount of Rs.13,000/- sanctioned to K.J.Joseph, under Exhibit P35 credit slip, Rs.7,498/- was paid to the loanee and Exhibit P35 credit slip for that purpose was initialed by the appellant. Evidence of PW10 establishes that as instructed by the appellant he prepared Exhibit P35 slip and appellant initialed in Exhibit P35 at the place where the depositor has to sign. 10. PW38, the Assistant Examiner for Questioned Documents, Government of India, Hyderabad, examined Exhibits P8 to P10 and P18 and found that the signature purporting to be that of K.J.Joseph is identical to the signature of the appellant. The fact that writings are in the handwriting of the appellant is not in dispute. The notices sent to K.J.Joseph from the Bank demanding the amount covered by the transaction were returned unserved with the endorsement 'no such addressee'. It is on this evidence, learned Special Judge found that K.J.Joseph is a fictitious person and though CRA 147 & 159/99 12 Rs.13,000/- was sanctioned by the Bank in the name of K.J.Joseph, it was utilised by the appellant. 11. Argument of the learned counsel is that the fact that notices were returned subsequently, does not mean that Joseph was not there in the address given in the loan application and therefore, on that basis, it cannot be said that he is a fictitious person. Exhibit D5 is the copy of the judgment in O.S.No.605/1996, instituted by the Bank against Joseph and co-obligant John, which was dismissed as not pressed on 20.6.1997. Exhibit D2 is letter dated 3.6.1997, issued by the counsel, who was appearing for Syndicate Bank in that suit, stating that counsel has received Rs.13,228/- in full and final settlement of the claim in O.S.No. 605/1996 from Sri.C.J.Sajjan, Advocate, Cherthala on 3.6.1997 at his office. Argument of the learned counsel is that Exhibit D2 shows that the amount claimed in the suit from the loanee Joseph was paid by Advocate Sajjan on his behalf and consequently, CRA 147 & 159/99 13 the suit was dismissed as not pressed. Evidence of the Investigating Officer shows that he did not question either the counsel appearing for the Bank or Advocate Sajjan to verify whether the amount was received from the loanee K.J.Joseph and therefore, the finding that K.J.Joseph is a fictitious person is unsustainable. While appreciating Exhibit D2 as well as Exhibit D5, it is to be borne in mind that though the suit was instituted in 1996, the suit was not pressed on receipt of the amount claimed in the suit from Advocate Sajjan. Though the amount misappropriated by availing a loan in the name of Joseph is Rs.13,000/-, part of the amount has already been paid in that account. Evidently, when appellant was sure that he cannot escape from the case, payment was made through Advocate Sajjan to show that the loanee is not a fictitious person. 12. On going through the evidence, I find no reason to interfere with the finding of the learned Special Judge that K.J.Joseph is a fictitious CRA 147 & 159/99 14 person and the amount was actually availed by the appellant. Even though the signature seen in Exhibit P12 application is not proved by the expert as that of the appellant, as it was not sent to him for comparison, Exhibits P8, the application form by which a Savings Bank Account was opened in the name of Joseph, Exhibit P9, the specimen signature card of Joseph as well as Exhibit P10, the initial deposit slip, were sent for comparison and it was found that the signature is that of the appellant. Added to this, Exhibit P18, the debit slip by which the loan of Rs.13,000/- was disbursed under Exhibit P20 Demand Draft, was also examined and it was found that the signature is that of the appellant. Added to this, amount of Rs.13,000/- sanctioned to Joseph was actually credited to Exhibit P49 account of the appellant maintained in Bank of Baroda. The findings of the learned Special Judge, based on these evidence, are perfectly correct and warrant no interference. CRA 147 & 159/99 15 13. Prosecution case is that a loan of Rs.20,000/- was sanctioned to Ramesh Kumar. That fact is not disputed. Exhibit P87 is the loan application and Exhibits P88 to P90 are the loan documents and Exhibit P34, the ledger extract of the loan and Exhibit P73, the Demand Draft by which Rs.17,100/-, out of the loan amount, was credited to the account of PW16 Balakrishnan. PW16 is none other than the uncle of the wife of the appellant. Exhibit P1 is the account opening form where under, a Savings Bank Account was opened in the name of Ramesh Kumar. Exhibit P2 is the specimen signature card and Exhibit P3 is the initial deposit slip and Exhibit P4 is the extract of the Savings Bank ledger account. Evidence of PW10, the officer dealing with loan in that Bank, establishes that documents regarding the loan sanctioned to Ramesh Kumar were handed over to him by the appellant disclosing that he knew the loanee and the signature in the application is that of the loanee. CRA 147 & 159/99 16 PW10 was directed to sanction the loan. Out of the loan amount of Rs.20,000/-, under Exhibit P73 Demand Draft, Rs.17,100/- was credited to the account of PW16 in Exhibit P70 Savings Bank Account. Evidence of PW16 shows that while appellant was working as the Manager of Kalamassery Branch of Syndicate Bank, he approached PW16 and asked for money. When PW16 disclosed that he did not have the money as he had availed loan for his workshop by name Pushpa Engineers, appellant told him that he will sanction loan in the name of PW16 and PW16 has to get that amount in cash and handover the same to the appellant. Accordingly, he had gone to that Bank and signed the papers and received the money and handed over the same to the appellant. According to PW16, later, he received a notice from the Bank for repayment of the loan and PW16, therefore, approached the appellant, who was then working at Alappuzha. Then, the appellant disclosed to him that he will do what all are CRA 147 & 159/99 17 necessary and he need not worry and after some days, when he enquired with Kalamassery Branch of Syndicate Bank, it was informed that the loan was cleared. PW16 deposed that he did not utilise any portion of the amount taken on loan from that Bank and also did not remit any amount. When PW16 deposed these facts, the only challenge in his evidence was whether he demanded for any document for payment of the loan and whether he received notice from the Bank by registered post or not. The other aspects deposed by PW16 were not even challenged. At the same time, when questioned under Section 313 of Code of Criminal Procedure, wisdom had known to the appellant. He claimed that in the family partition of the wife of the appellant, PW16 was dissatisfied with the share allotted to his niece and therefore, PW16 has a grudge against the appellant and it is for that reason, he had deposed against him. If, in fact, there was such a dispute with PW16, either on account of any property CRA 147 & 159/99 18 dispute or on any other ground, it would have been put to PW16. Appellant had no such case when PW16 was examined. Evidence of PW16 establishes that subsequent case was created to explain the evidence, which was binding on the appellant. Evidence further establishes that out of the loan amount of Rs.20,000/- availed in the name of Ramesh Kumar, Rs.17,100/- was credited to Exhibit P70 Savings Bank Account of PW16. In spite of the evidence of PW16 that he did not remit any portion of the loan amount in his account, he was not questioned with regard to the said credit of Rs.17,100/-. That Rs.17,100/-, which was credited to the account of PW16, is the amount which should have been credited to the account of the supplier of the materials to Ramesh Kumar. Exhibit P87 loan application does not mention the name of the supplier, which should have been there in a genuine loan application. Evidence of PW10 establishes that Exhibit P73 Demand Draft was prepared as instructed CRA 147 & 159/99 19 by the appellant. Though it was sought to be explained in the statement filed at the time of questioning under Section 313 of Code of Criminal Procedure that PW16 Balakrishnan was the supplier of materials to Ramesh Kumar and therefore, the Demand Draft was issued to PW16, when PW16 was examined, there was no such case. On the evidence, learned Special Judge was fully justified in disbelieving the said case and finding that Exhibit P73 Demand Draft was credited to the account of PW16 as that loan was also arranged by the appellant, though in the name of PW16. Evidence conclusively establish that appellant is the beneficiary of the loan availed in the name of Ramesh Kumar and the amount was misappropriated by him. 14. Prosecution case is that under Exhibit P22 loan application appellant sanctioned a loan of Rs.14,300/- to Sasidharan Nair, who is a fictitious person and under Exhibit P130 account opening form CRA 147 & 159/99 20 a Savings Bank Account was opened in the name of Sasidharan Nair and Exhibit P131 is the specimen signature card and Exhibit P132 is the initial payment slip. Under Exhibit P30 credit slip, by Exhibit P31 Demand Draft for Rs.14,300/-, the loan was disbursed. The Demand Draft, in turn, was credited to the account of Madhusoodanan, who was examined as PW17. Evidence of PWs 2, 11 and 17 establish that Exhibit P31 Demand Draft was credited to the account of Madhusoodanan and towards the loan amount due from Sasidharan Nair, Rs.8,458/- was paid under Exhibit P33 credit slip. Evidence of PW10 establishes that Exhibit P33 credit slip was prepared by him as instructed by the appellant. Evidence of PW17 is to the effect that he has not opened any account in Kalamassery Branch of Syndicate Bank. He also deposed that the handwriting in Exhibit P57, the account opening form or the signature of the depositor shown in Exhibit P58, the initial deposit voucher or the CRA 147 & 159/99 21 signature on the reverse side of Exhibit P57, relating to the account in his name, are not his signature or his handwriting and in Exhibit P59 loan application also, he has not signed. He also deposed that even the name of his father is not correctly mentioned as the initial is different. PW17 deposed that he has not signed in Exhibits P60 to P62, the loan documents and the signature seen as of the depositor in Exhibit P69 is also not his signature. 15. Evidence of PW5, the Assistant Manager of Kalamassery Branch of Syndicate Bank, establishes that it was the appellant who introduced Madhusoodanan to the Bank to open a Savings Bank Account and Exhibit P58 credit slip was prepared in his handwriting as instructed by the appellant and the said Madhusoodanan has not come to the Bank. Exhibit P59 loan application in the name of Madhusoodanan was also filled up by PW5, as instructed by the appellant. As per that CRA 147 & 159/99 22 application, a loan of Rs.10,000/- was sanctioned by the appellant, who signed in Exhibit P59 application. As seen from Exhibit P63 ledger extract, on 1.10.1990, under Exhibit P64 debit voucher prepared by PW5, the amount was credited to the Savings Bank Account of Madhusoodanan. Exhibit P65 credit voucher was also prepared by PW5 as instructed by the appellant and out of the said amount so credited, Rs.8,624.90 was debited and under Exhibit P66 transfer debit slip, it had gone to Exhibit P52 account of PW6 Omana. Exhibit P63 credit slip shows that on 24.10.1999 Rs.3,000/- was credited to the loan account of Madhusoodanan and Exhibit P69 credit slip was prepared by PW5 in his own handwriting and that payment was in fact made by the appellant as he entrusted it to PW5. A loan of Rs.12,000/- was sanctioned to PW6 Omana and Exhibit P52 is the ledger extract of that account. Though that loan was sanctioned in the name of Omana, appellant is the beneficiary. According to CRA 147 & 159/99 23 PW5, appellant asked for Rs.5,000/- from him. As he did not have that cash, appellant requested his help to arrange a loan. Therefore, PW5 asked PW6, who is the landlady of PW5, for a loan of Rs.12,000/-. Then PW6 handed over a Fixed Deposit Receipt to enable PW5 to take a loan stating that she would sign the necessary papers. Accordingly, PW5 prepared necessary papers and got the signature of PW6 from her house. Thereafter, that loan was sanctioned by the appellant. Exhibit P53 credit slip was prepared by PW5 as instructed by the appellant and in Exhibit P54, the ledger extract, the loan amount is seen credited by Exhibit P54(a) entry. In that account, under Exhibit P55 credit slip, Rs.3,500/- was credited. That credit slip was also prepared by PW5 as instructed by the appellant. Evidence of PW5 is that appellant entrusted the money and directed PW5 to remit that amount in that account. Rs.8,624.90 is the amount which was transferred from the