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. 146 of 1999(N) ----------------------------------------- CC.3/1998 of SPL.COURT SPE/CBI-II, ERNAKULAM .................... APPELLANT/ACCUSED: N.P.PRABHU, SENIOR MANAGER, SYNDICATE BANK, ZONAL OFFICE, THIRUVANANTHAPURAM (NOW UNDER ORDER OS 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, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.146 of 1999 -------------------------- JUDGMENT Appellant was the Manager of Thiruvananthapuram Branch of Syndicate Bank from June 1995 to June 1996. He was tried 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 By Special Judge (SPE/CBI) - II, Ernakulam in C.C.No.3/1998. Prosecution case is that while working as the Manager of Thiruvananthapuram Branch of the Bank, appellant arranged a loan to a fictitious person by name Prakasan, Aswathi, Airport Road, Valiyathoppu, Trivandrum to the tune of Rs.35,000/- and misappropriated that amount. It is alleged that the loan application and the necessary loan documents were all forged and appellant used them as genuine with the knowledge that they are not genuine and committed breach of trust by misappropriating the CRA 146/99 2 amount and was guilty of misconduct and thereby, committed the offences. 2. When the charge for the offences was read over and explained to the appellant, he pleaded not guilty. Prosecution examined twelve witnesses and marked thirty four exhibits. When the appellant was called upon to enter on his defence evidence and to adduce evidence, he did not adduce evidence. 3. Learned Special Judge, on the evidence, found the appellant not guilty of the offence under Section 465 of Indian Penal Code, as there is no evidence to prove that appellant forged the signature of Prakasan, the fictitious person and acquitted him of that offence. He was found guilty of the offences under Sections 409 and 471 of Indian Penal Code and Section 13(2) of Prevention of Corruption Act. He was convicted and sentenced to rigorous imprisonment for a period of three years and a fine of Rs.5,000/- each for the offences under Section 409 of Indian Penal Code and CRA 146/99 3 Section 13(2) of Prevention of Corruption Act and rigorous imprisonment for a period of one year and a fine of Rs.1,000/- for the offence under Section 471 of Indian Penal Code. This appeal is filed challenging the conviction and sentence. 4. Learned counsel appearing for the appellant and learned Special Public Prosecutor appearing for CBI were heard. 5. Argument of the learned counsel is that there is no satisfactory evidence to prove that Prakasan, who was the loanee, is a fictitious person and on the evidence, it cannot be said that Prakasan is a fictitious person. It was argued that the burden to prove that Prakasan is a fictitious person lies on the prosecution and though the concerned application for opening the Savings Bank Account by Prakasan as well as the loan application was filled up in the handwriting of the appellant, it was done as expected by the Manager of the Bank when a customer sought his help to fill up the CRA 146/99 4 applications and for that reason, it is not possible to hold that appellant misappropriated the amount. It is also contended that as prosecution case was that appellant committed forgery and used the forged documents as genuine documents, when it is found that appellant did not commit forgery, conviction of the appellant for the offence under Section 471 of Indian Penal Code is bad. Learned counsel also argued that though, under Exhibit P6 cheque, the loan amount, which was debited to the Savings Bank account of Prakasan, was withdrawn and evidence of PW3 was relied upon by the learned Special Judge, his evidence only shows that he sent that amount to the cabin of the appellant through an Attender and that Attender was not examined and hence, there is no evidence to prove that the amount was entrusted to the appellant and therefore, conviction is not sustainable. Learned counsel also argued that for the reason that the postmen could not serve the notices on Prakasan, it CRA 146/99 5 cannot be said that Prakasn is a fictitious person, as he could have changed the residence subsequent to the granting of the loan. 6. Learned special Public Prosecutor submitted that learned Special Judge appreciated the evidence in the proper perspective and the evidence establish that it was the appellant who introduced Prakasan to the Bank to open an account and the entire records were prepared in the handwriting of the appellant and though the other officials had signed in them, none of them had seen Prakasan and ultimately, after the loan was sanctioned, it was debited to the Savings Bank Account in the name of Prakasan and it was also withdrawn by the appellant under Exhibit P6 by sending the cheque to PW3, who, in turn, sent the amount to the cabin of the appellant and in such circumstances, the conviction is perfectly legal. 7. Evidence of PW1, the Clerk of the Bank during the relevant period, establish that Exhibit CRA 146/99 6 P1 Savings Bank Account Opening Form, along with Exhibit P2 Specimen Signature Card, were sent to PW1 by the appellant, the Manager of the Bank, after filling up the same with instructions to open an account and the initial deposit. Evidenced by Exhibit P3 credit slip, initial deposit was also made by the appellant. It was the appellant who introduced Prakasan to the Bank. When PW1 was cross-examined, except a suggestion that a Manager is competent to introduce the account holder and at times he used to fill up the relevant applications, the fact that appellant introduced Prakasan and PW1 had not seen the said Prakasan were not challenged. Her evidence with Exhibit P4 ledger extract of the Savings Bank Account establish that the loan sanctioned to Prakasan was credited to the Savings Bank Account and out of that amount, Rs.34,000/- was withdrawn by Exhibit P6 cheque, which was one of the cheque leaves from the Cheque Book issued to Prakasan. Her evidence also prove that Exhibit P6 CRA 146/99 7 cheque was sent for collection of the money from the cabin of the appellant. Her evidence that it was the appellant who received the cheque book for Prakasan was also not challenged. 8. Evidence of PW2, the Special Assistant of that Branch, establishes that Exhibit P2 Specimen Signature Card and Exhibit P3 credit slip were prepared in the handwriting of the appellant and appellant himself introduced the account holder and the application was sent to PW2 by the appellant from his cabin and after the initial, PW2 had sent it to the Cashier to receive the cash under Exhibit P3 credit slip. Her evidence is also that cheque leaves 461321 to 461330 were issued in that account and as evidenced by Exhibit P7(a) entry, the cheque leaves were received by the appellant. When PW2 was cross-examined, it was not disputed that the cheque leaves in that account were received by the appellant. It was only suggested that as the Manager, he is competent to receive the cheque CRA 146/99 8 leaves to be entrusted to a customer. But, there is no evidence, on the side of the petitioner, that it was entrusted to Prakasan. Her evidence also establishes that Prakasan did not appear before her and it was at the instance of the appellant, everything was done and it was under Exhibit P5, the loan sanctioned was credited to the Savings Bank Account. 9. Evidence of PW3, the Cashier, shows that Exhibit P3, the credit slip was received by him and it is written in the handwriting of the appellant. PW3 also deposed that Exhibit P6 cheque was accepted by him and payment of Rs.34,000/- was made by him. According to PW3, Exhibit P6 cheque was also written in the handwriting of the appellant and as he was working under the appellant, he was acquainted with the handwriting of the appellant. PW3 also deposed that Rs.34,000/-, covered under Exhibit P6 cheque, was sent to the cabin of the appellant through an Attender. When PW3 was cross- CRA 146/99 9 examined, appellant had no case that Exhibit P6 cheque was not written in his handwriting. He had also no case that the cheque was not sent from his cabin to the Cashier or the cash sent by the Cashier did not reach his cabin. PW3 was cross- examined only as to whether he was aware that the account holder was sitting in the cabin or not. For the reason that Attender was not examined, learned counsel argued that there is no evidence to prove that cash was received by the appellant. True, the Attender was not examined. From the evidence of PW3, it is clear that appellant had no case that the cash, covered under Exhibit P6 cheque, entrusted to the Attender by PW3, did not reach the cabin of the appellant. In such circumstances, I do not find that non-examination of the attender is fatal. When receipt of the amount by the appellant, alleged by the prosecution, is to be appreciated in the background of the case, it is absolutely clear that appellant had received that amount. CRA 146/99 10 10. PW7 was the Vigilance Officer of Syndicate Bank from 1994 onwards. Evidence of PW7 establishes that he had made enquiry to trace out Prakasan and though in the loan application it is stated that Prakasan is doing textile business, his enquiry revealed that there is no such Prakasan and he was not having any business also. Though it was suggested to PW7 that he could not give evidence with regard to the status when the loan was sanctioned, from the evidence of PW7, it is clear that there was no such Prakasan and Prakasan is a fictitious person. 11. Evidence of PW10, the postman attached to Vallakadavu Post Office, establishes that he had enquired the address shown in Exhibits P22 to P27 and he could not find either Prakasan or the co- obligant Narayanan. Though learned counsel argued that evidence of PW10 is insufficient to establish that Prakasan is a fictitious person, it is absolutely clear that if Prakasan was residing in CRA 146/99 11 the address furnished, PW10, the postman, who was working there from 1993 onwards, would have known about him and would have served the notice. In the light of the entire evidence, learned Special Judge was fully justified in holding that Prakasan is a fictitious person. 12. It is to be borne in mind that under Exhibit P1, a Savings Bank Account was opened in the name of Prakasan, as introduced by the appellant. The case of the appellant that he was discharging bona fide his duties as the Manager of the Bank by helping a customer, could have been appreciated if, the appellant had not played all the parts in all the transactions in that account. Evidence establish that the Account Opening Form and the Specimen Signature Card were in his handwriting. Even the initial deposit voucher was prepared in the handwriting of the appellant and it was the appellant himself who had sent even the money to the concerned Clerk for initial deposit. CRA 146/99 12 When the evidence establish that Prakasan is a fictitious person, I cannot agree with the contention that being an esteemed customer, Prakasan was sitting in the cabin of the appellant and appellant, as a dutiful Manager of the Bank, filled up all the records for Prakasan and got the account opened. It did not end there. Exhibit P13 loan application was prepared in the handwriting of the appellant. Prakasan was earlier introduced to the Bank by the appellant. The appraisal of the loan application was also conducted by the appellant. The loan was also sanctioned by the appellant. It was, thereafter, the papers were sent to the concerned Clerk. The loan amount was debited to the Savings Bank account, opened at the instance of the appellant. Out of Rs.35,000/- so sanctioned, Rs.34,000/- was withdrawn under Exhibit P6 cheque. Even that cheque was prepared in the handwriting of the appellant. It cannot be believed that appellant was filling up the cheque as an innocent Manager of CRA 146/99 13 the Bank. It definitely establishes that it was the appellant himself who opened the account in the name of Prakasan, a fictitious person. Evidence also establish that Exhibit P6 cheque was sent by the appellant to the concerned Clerk for collection and the amount was also received at the cabin of the appellant. It is pertinent to note that even the cheque book was received by the appellant for the account holder. Though evidence of PW11 with Exhibit P30 report does not establish that the signatures, purporting to be that of Prakasan, are not proved to be the signatures of the appellant and for that reason, learned Special Judge acquitted appellant of the offence under Section 465 of Indian Penal Code, it is absolutely clear that it was the appellant himself who had created those records, though the signatures may not have been put personally by him. In any case, when it is proved that Prakasan is only a fictitious person, it is absolutely clear that Exhibit P1 account CRA 146/99 14 opening form and Exhibits P2 and P3, the connected records as well as Exhibit P13 loan application and Exhibits P14 to P18 loan documents are all forged. Appellant, being the Manager, with the knowledge that Prakasan is only a fictitious person and that these documents were all forged documents, made use of them as genuine and sanctioned the loan and ultimately misappropriated the amount by encashing the loan amount under Exhibit P6 cheque. In the light of this evidence, learned Special Judge was perfectly right in finding the appellant guilty of the offences under Sections 409 and 471 of Indian Penal Code and Section 13(1)(c) and (d) read with Section 13(2) of Prevention of Corruption Act. The Conviction is only to be confirmed. 13. Then the only question is regarding the sentence. Learned Special Judge sentenced appellant to rigorous imprisonment for a period of three years and a fine of Rs.5,000/- each for the offences under Section 409 of Indian Penal Code and CRA 146/99 15 Section 13(2) of Prevention of Corruption Act and rigorous imprisonment for a period of one year and a fine of Rs.1,000/- for the offence under Section 471 of Indian Penal Code. Though learned counsel argued that appellant is now aged 64 years and therefore leniency is to be shown, I find that appellant had committed similar offences while he was working as the Manager of the Bank at Alappuzha and Kalamassery Branches. He was convicted in two other cases and the appeals arising from those cases were heard and disposed today by separate judgment. In such circumstances, I find no reason to interfere with the sentence also. Appeal is dismissed. Special Judge (SPE/CBI)- II, Ernakulam directed to execute the sentence. Appellant is directed to appear before the court on 19.08.2010. 14th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRA 146/99 16 M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.146 of 1999 -------------------------- JUDGMENT 14th July, 2010