1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NOS. 24 AND 25 OF 2010 Mr. Vijay Nanalal Sheth, major of age, Indian National, resident of A/114, Zalawad, Nagar, C. D. Burfiwala Marg, Juhu Lane, Andheri(West), Mumbai-58.(Currently in Judicial Custody) represented herein by his next friend, Mr. Anup Vijay Seth, major of age, Indian National, resident of A/114, Zalawad, Nagar, C.D. Burfiwala Marg, Juhu Lane, Andheri(West), Mumbai-58. ... Applicant versus State, through the Central Bureau of Investigation, previously having its office at Altinho, Panaji, Goa, and currently having its office at Bambolim, Tiswadi, Goa. ... Respondent Shri S. D. Lotlikar, Senior Advocate with Shri Ryan Menezes, Advocate for the Applicant. Shri J. Vaz, Special Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 21ST SEPTEMBER, 2010. 2 JUDGMENT These revisions can be conveniently disposed off by this common Judgment. 2. They are directed against two separate Judgments dated 25-6-2010 of the learned Assistant Sessions Judge, Panaji, by which convictions and sentences imposed upon the applicant/accused by the learned J.M.F.C.(Magistrate, for short) has been maintained under Sections 420, 467, 468 and 471 I.P.C. 3. The first revision arises from Criminal Appeal No.90 of 2006 which in turn arose from C. C. No.56/97/B. The second revision arises from Criminal Appeal No.91 of 2006 which arose from C. C. No.57/97/B. 4. Some facts are required to be stated to appreciate the submissions made and to dispose off these revisions. 5. Both the cases against the accused came to be investigated on the basis of a F.I.R. dated 20-9-1996 lodged by Shri N. Dilip Kumar, Superintendent of Police, CBI/ACB/Goa which was produced as Exh.PW14/A in C. C. No.56/97/B. One Shri Madhusudan Bhangui was the 3 Branch Manager of Bank of India, Campal Branch, Panaji. The said F.I.R. was lodged against Shri Madhusudan Bhangui/A-1 and the petitioner/A-2 under Sections 120-B, 420, 468, 471 I.P.C. and Section 5(1)(d) r/w Section 5(2) of the Prevention of Corruption Act, 1947. After registration of the said F.I.R. investigations were entrusted to Dy. S. P. Shri Om Prakash Kudtarker, and the investigations were supervised by Shri Dilip Kumar. A copy of the said F.I.R. was sent to the Special Judge(District & Sessions Court), Panaji. After completion of investigations, Dy. S. P. Om Prakash Kudtarker filed two charge-sheets on 30-5-1997 only against the applicant/accused stating that there was no sufficient evidence to prosecute the said Shri Bhangui and therefore he was not cited as an accused but was cited as a witness. 6. The first case(C.C.No.56/97/B) was filed with the allegation that the accused in January, 1986 cheated Bank of India, Campal Branch, Panaji by dishonestly inducing the Officers of the Bank to purchase three cheques, which cheques bounced causing loss to the Bank. It was also the case of the prosecution that in or about February, 1984 the accused had opened a current account with the said Bank of India, Campal Branch, Panaji, and thereafter forged the cheques, and that the accused had also forged certain other documents relating to sales tax, registration of a fake firm M/s. Meera International. The accused had drawn a report of GEQD in the fake signature of one Ravi Zaveri, intending that it should be used for the purpose of 4 cheating, and the accused had fraudulently used as genuine all the said documents to get a bridge loan on Rs.4,00,000/-, cash credit of Rs.2,80,000/-, and one more cash credit of Rs.85,000/-. In this case, the prosecution had examined fifteen witnesses and had produced documentary evidence. 7. The second case (C.C.No.56/97/B) was filed with the allegation that in February, 1984, the accused had prepared documents of acknowledgement of wealth tax returns, copy of wealth tax and income tax assessments and made false statement on oath intending that it shall be used for the purpose of cheating. Further, the accused had fraudulently used as genuine the said documents which he knew at the time of its use as forged documents. The accused had cheated Bank of India by giving false address and false information of M/s. Aurobindo Profile Industries to obtain finance of Rs.6.75 and Rs.6.42. The accused had submitted false statements of assets and liabilities, and in order to obtain loan had floated a firm M/s Meera International in the name of Ravi Zaveri, and thereby the accused had induced the Canara Bank to advance cash credit facility. It was also the case of the prosecution that the accused prepared forged/fake receipts and bills of M/s Meera International and obtained cash credit facility from Bank of India, Campal Branch, Panaji. Prosecution had examined 23 witnesses in this case. 5 8. The said Shri Madhusudan Bhangui was examined on 16-2-2000 as PW7 in the first case and PW13 in the other case. Prosecution had also examined Shri Douglas F. Lobo who at the relevant time was the Deputy Branch Manager and Shri Usgaonkar who was the Regional Manager and who had approved the grant of loans to the accused. However, it is relevant to note that when Shri Madhusudan Bhangui was examined on 16-2-2000 not a suggestion was put to him or even a whisper was made that he had connived along with the accused to defraud the Bank but after the prosecution closed its case, an application came to be filed by the accused on 23-10-2000 under Section 319 of the Code (Code of Criminal Procedure, 1973). The said application was dismissed by the learned Magistrate holding that there was no evidence to suggest that Shri Madhusudan Bhangui had conspired with the accused in pursuance of a common design and there was also no evidence as to what was the common design and in what way Shri Madhusudan Bhangui was the beneficiary of the said design. The learned Magistrate had also observed that Mr. Bhangui himself was examined as a witness in both the cases and was extensively cross-examined and who had admitted that if the Bank had exercised some diligence in cross checking with the three Companies, namely M/s Chowgule and Company, M/s Salgaokar and Brothers Ltd. and M/s Sesa Goa, the Bank could have saved itself from the loss. The learned Magistrate also found that there was nothing to suggest that the said Shri Bhangui had acted with dishonest intention whilst functioning as 6 Branch Manager vis a vis the credit facilities granted to the accused Vijay Sheth. 9. The applicant/accused filed a Criminal Revision Application to the Court of Sessions which was dismissed by the learned Additional Sessions Judge, but in Criminal Writ Petition No.31 of 2001 filed therefrom, this Court by Judgment dated 21-2-2002 found fault with certain observations made by the learned Additional Sessions Judge. 10. The said Criminal Writ Petition was filed by the applicant/accused Vijay Sheth. However, this Court at the time of dismissing the said Criminal Writ Petition No.31 of 2001 observed that the nature of evidence that had come on record did not conclusively implicate the said Branch Manager Shri Bhangui in any case of conspiracy as alleged by the applicant. The only evidence brought on record which may be said to be legal evidence, is the evidence in the nature of adverse inference to be drawn in view of the failure on the part of the prosecution to produce reply of the Branch Manager to the queries Exhibit D. This Court ultimately concluded that from the nature of evidence collected during the trial, it could not be said that there was reasonable prospect of the case against the Branch Manager Shri Bhangui ending in his conviction of the offence of conspiracy, and ultimately dismissed the Writ Petition filed by the applicant/accused. 7 11. What follows therefrom is that it is not only the Investigation Officer who did not find any evidence of conspiracy of the Branch Manager Shri Madhusudan Bhangui but it is also the learned Magistrate, the learned Additional Sessions Judge as well as this Court and that issue of complicity of the Branch Manager in defrauding the Bank stood concluded. 12. As already stated, in the first case, the prosecution had examined fifteen witnesses and in the second case, the prosecution had examined twenty three witnesses. The accused did not step in the witness box but filed written statement and examined four witnesses in each of the cases. The learned Magistrate, in the first case, after considering the prosecution as well as the defence evidence came to the conclusion that the evidence of the prosecution witnesses was credit worthy and there was no reason to disbelieve them, and their testimonies were supported by relevant documentary evidence, and that the evidence of the Government Examiner of questioned documents was very much relevant to prove the acts of the accused of furnishing false information, creating forged documents and impersonating himself as some other person, beyond reasonable doubt, and that the accused in the course of defence had failed to rebut the case made by the prosecution as against him. The learned Magistrate further concluded that the accused with his dishonest intention had induced the Bank of India, Campal Branch to purchase the three cheques from him thus putting the said Bank to a loss of Rs.57,000/-, and at the same time, 8 the accused had induced the Bank to sanction to him the said two loans on the basis of false information given, and false and fabricated documents furnished, and thereby the accused had cheated the said Bank. 13. As regards the second case, the learned Magistrate observed that the prosecution had established that the firm M/s. Meera International was a fake firm started by the accused himself by impersonating himself as Ravi Zaveri, and the address was given as that of a tea stall, and as stated by PW20/ Murlidhar, he did not know any person either in the name of the accused or in the name of Ravi Zaveri nor of any firm by name M/s. Meera International. The said address of M/s. Meera International was given by the accused to Canara Bank, Sion Branch. The learned Magistrate further observed that the testimonies of the prosecution witnesses as discussed were credit worthy, and there was no reason to disbelieve them. Their testimonies were supported by relevant documentary evidence. The testimony of the Government Examiner of questioned documents was very much relevant to prove the acts of the accused of furnishing false information, creating forged and fabricated documents and impersonating himself as some other person beyond reasonable doubt, and in the course of defence, the accused had totally failed to rebut the case made up by the prosecution against him. The learned Magistrate, therefore, concluded that the prosecution had established that the accused with his dishonest intention had induced the Bank of India, Campal Branch, to 9 sanction cash credit facilities to him by preparing false and fabricated documents such as wealth tax returns, Income tax and wealth tax assessments, etc., and thereby induced the Bank to sanction to him the said two cash credit limits and a bridge loan on the basis of false information given and by floating a fake firm in the name of M/s. Meera International and by giving false addresses and information of M/s Aurobindo Profile Industries. 14. The appeals filed from both the Judgments of the learned Magistrate came to be dismissed, as already stated. 15. Although the F.I.R. was filed against the Branch Manager as well as the present accused, admittedly, charge-sheets came to be filed before the learned Magistrate without sending any final report against the Branch Manager to the Special Judge under the Prevention of Corruption Act, 1988. 16. The first submission of Shri S. D. Lotlikar, learned Senior Counsel is that the Investigation Officer could not have closed the case against the said Branch Manager Shri Madhusudan Bhangui as he had no power to close the proceedings which power could have been exercised only by the learned Special Judge to whom a copy of the F.I.R. was sent, and, therefore the trial against the present accused is void and vitiated. 10 17. Shri J. Vaz, learned Special Public Prosecutor on the other hand has submitted that the submission made no longer survives, and has been dealt with by this Court in Judgment dated 21-2-2002 in Criminal Writ Petition No.31 of 2001. Learned Special Public Prosecutor has further submitted that there are concurrent findings given by both the Courts below and therefore in revision there is no scope for interference. 18. As far as revisional powers of this Court are concerned, it may be stated that this Court will not interfere unless there is compelling reason or perversity or gross illegality. A revision cannot be treated as an appeal in disguise. 19. That apart, I am unable to accept the submissions of learned Senior Counsel as well as the submissions of learned Special Public Prosecutor. The submission made by the learned Senior Counsel has not been answered by this Court in the Judgment dated 21-2-2003 in Criminal Writ Petition No.31 of 2001. This Court faulted certain observations made by the learned Additional Sessions Judge in dismissing the revision and observed that the Investigating Officer could not on his own choose the forum for prosecuting the accused in the F.I.R., even if the I.O. genuinely felt that there was no case against the said Madhusudan Bhangui, the F.I.R. having been lodged with the Special Judge for offence under Section 120-B read with the 11 offences under the I.P.C. as well as the Prevention of Corruption Act, the closure report under Section 173 ought to have been filed before the Special Judge, clearly indicating that the investigation for the offence under Section 120-B, and the offences under the Prevention of Corruption Act against the Branch Manager Shri Bhangui were proposed to be dropped. It was further observed that it was for the Special Judge to have accepted or rejected the report. The I.O. on his own could not have chosen to file the charge-sheet only against the petitioner by simple device of dropping the Branch Manager Shri Bhangui thereby depriving the Special Judge of jurisdiction to try the matter. It must not be forgotten that the F.I.R. was lodged for offence under Section 120-B and other Sections of the I.P.C. as well as offences under the Prevention of Corruption Act and the case would, in normal circumstances have been filed before the Special Judge and Shri Bhangui being the Branch Manager of a Nationalised Bank was allegedly involved in the offences. The I.O. could not have taken upon himself to discharge Shri Bhangui without having filed the closure report before the Special Judge and obtained his consent thereof. This Court referred to the case of Sampat Singh and others v. State of Haryana and others((1993) SCC 561) wherein it was held that when a case is registered under Sections 161 and 165 I.P.C. and Section 5(2) of the Prevention of Corruption Act, which offences can only be tried by a Special Court and police submitted cancellation report under Section 173 Cr.P.C. before the Magistrate, the Magistrate had no power to pass an order 12 discharging the accused on the basis of that report and the Magistrate should have instead forwarded the report to the Special Judge. This Court further observed that in the present case the I.O. had not filed a report under Section 173 before the Special Judge, but had in fact, filed a charge-sheet dropping the Branch Manager Shri Bhangui and citing him as a witness thereby usurping the power of the Special Judge. 20. In my view, the observations of this Court in Judgment dated 21-2-2002 cannot be taken to support the submission that because no report was filed against Shri Madhusudan Bhangui before the Special Judge that the trial of the present accused is in any way vitiated. In my view, one has nothing to do with the other. In this case, a police report was sent only against the present applicant/accused, then cognizance was taken without any murmur from the accused and the trial was also concluded, and such a trial cannot be said to be vitiated only because no report was made to the competent Court against the other accused. 21. The Apex Court in H. N. Rishbud and another v. State of Delhi(AIR 1955 SC 196) has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. That an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for 13 trial is well settled. In State of Rajasthan v. Kishore(AIR 1996 SC 3035) the Apex Court has again stated that the mere fact that the Investigating Officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. Yet again, the Apex Court in Leela Ram v. State of Haryana((1999) 9 SCC 525) reiterated the same principle that any irregularity or even an illegality during investigation, should not be treated as a ground to reject the prosecution case. As already stated, only because the Investigating Officer did not send a report against Shri Madhusudan Bhangui to the Special Judge informing that he was not involved in any conspiracy along with the present accused, in my opinion, the cognizance taken, the trial conducted and the conviction recorded against the present accused cannot be in any manner vitiated. 22. The next submission of learned Senior Counsel is that in case the I.O. did not find anything wrong in the conduct of the Manager Shri Madhusudan Bhangui the accused could not be attributed with dishonest intention. Learned Senior Counsel further submits that the Branch Manager had made independent inquiries and did not find any documents produced by the accused to be false, and there was nothing to suggest as to what had induced the Branch Manager either to purchase the cheques or give the loans to the accused. Learned Senior Counsel submits that the case against the 14 accused was one of civil liability for which the Bank had filed suits for recovery and the amounts due to the Bank have been paid that is to say Rs.5,45,000/- and Rs.13,800/- after which the Bank withdrew the Special Civil Suit No.167 of 1987 and the Execution Proceedings No.43/98 on 15-2-2001 and 22-1-2002, respectively. 23. I am unable to accept the submissions made by learned Senior Counsel. The accused induced the Branch Manager to purchase three cheques which when presented for payment were dishonoured either because of stop payment instructions or there were no sufficient amounts in the account. The cheque No.618220 dated 9-1-1986 for Rs.43,000/- was purchased by the Bank Manager for Rs.40,000/-. This cheque was issued to the accused in the name of his business, namely M/s Aurobindo Profile Industries by M/s Weldon Engineers of which Mr. Bhavesh Shah was the proprietor. It is in his evidence that as he(the accused) had not supplied the goods he had stopped payment of the cheque, and, therefore the cheque was of no use to the accused as the payment was stopped yet without disclosing that the payment was stopped by the drawer of the cheque, the accused induced the said Branch Manager to purchase it for Rs.40,000/-, and thereby cheated the Bank. These facts were amply corroborated by Shri Sunil Reddy, the Branch Manager of Sangli Bank, Girgao, Mumbai. The intention of the accused was dishonest. The second cheque bearing No.786110 dated 11-1-1986 for Rs.13,500/- was sold to the 15 said Branch Manager for the same amount. This cheque came from M/s. Ambika Steel & Allied Industries which was a firm of the accused, his wife and father-in-law as can be seen from the evidence of S/Shri Madhukar Makre and Laxmidas Thakar(PW10 and PW12) in C.C. No.56/97. According to the father-in-law of the accused, PW12/Thakar, it is the accused who was conducting the said business and the cheque was given by him at the request of the accused. The accused must have certainly known that there was no sufficient amount in the account, and yet the accused induced the Branch Manager to purchase the same and this also was nothing but an act of deception. The third cheque for Rs.9,400/- came from the said M/s. Meera Internationals whose account was opened by dubious means and which had otherwise no place of business and belonged to the accused. The prosecution has sufficiently proved that the accused had deceived the Branch Manager to part the said sum of Rs.77,000/-. There is no doubt that at the relevant time the Branch Manager and the Deputy Branch Manager thought that the accused was a genuine businessman but only to learn later that the accused was a cheat. The Branch Manager did state that in case he had exercised some diligence in cross-checking the three companies they could have saved themselves from the loss but that is the normal conduct of any person who generally gets cheated but that in no way helps the accused who has cheated the Bank not only by inducing them to purchase the cheques and also by producing various forged documents for the purpose of granting the credit facilities, bridge loan, 16 etc. taken by the accused which otherwise would not have been granted to the accused. 24. In the circumstances, therefore, I find there is no merit in these revisions which are liable to be dismissed. 25. On behalf of the accused, it is further submitted that the accused has paid the amount due to the Bank, and, therefore the sentence be modified to the period already undergone by the accused i.e. about twenty five days. It is also submitted that at present, the accused is about 56 years of age and has medical problems, and in support of it a photo copy of a Certificate dated 25-8-2010 purports to be issued by one Dr. Suresh Shetty has been produced. On behalf of the accused, a submission is made that the amount of fine could be increased and substantive sentence reduced to the period undergone. It appears that such a submission was made before the learned Sessions Judge but was not accepted by him observing that the offences committed by the accused are of serious nature, and, therefore the sentence cannot be reduced. Considering the antecedents of the accused, I am not inclined to place any reliance on the copy of Certificate dated 25-8-2010. In case the accused requires any check-up at all, the same can be given to him by the Prison Authorities. The case of the accused does not call for any leniency. 17 26. In my opinion, this is not a fit case to reduce the sentence, and consequently the prayer for reduction of sentence is also rejected. 27. For reasons stated, the revision petitions are dismissed. The bail bonds, if any, executed by the accused are cancelled. The accused to surrender to the learned J.M.F.C., to undergo the sentence. N. A. BRITTO, J. RD