IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 CRL.A.No. 75 of 2003() -------------------------------- CC.5/1998 of SPECIAL COURT (SPE/CBI-II) & IV ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT/1ST ACCUSED ---------------------------------------- K. GOPAL MOHAN, ASSISTANT MANAGER, STATE BANK OF INDIA, KATTAPANA, NOW AT TRIVANDRUM MAIN BRANCH AND RESIDING AT PN 39, PARAMBIL NAGAR, SREEVARAHOM, TRIVANDRUM. BY ADV. SRI.M.RAMASWAMY PILLAI, SRI.P.M.JOSEPH. RESPONDENT/COMPLAINANT -------------------------------------------- S. GOVINDAN NAIR, INSPECTOR OF POLICE, SPE CBI, COCHIN, REPRESENTED BY ADDITIONAL CENTRAL GOVERNMENT STANDING COUNSEL, ERNAKULAM. BY ADV. MR.P. CHANDRASEKHARAN PILLAI, SC, CBI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2011, ALONG WITH CRA NO. 86 OF 2003 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs CRL.A.No. 75 of 2003 ORDER ON CRL.MP.NO.518/2003 IN CRL.A.NO.75/2003 DISMISSED 25/03/2011. SD/- P.S.GOPINATHAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs (CR) P.S.GOPINATHAN, J. ====================== Crl.A. Nos.75, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 122, 123, 127, 135, 133, 134, 150, 149, 151, 154 OF 2003 & 267, 268, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 536, 537 and 538 of 2004 ====================== Dated this the 25th day of March, 2011. COMMON JUDGMENT These appeals are against the common judgment dated 30.12.2002 in C.C.Nos.5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of 1998 on the file of the Special Judge (SPE/CBI)- II, Ernakulam. Criminal Appeal Nos.75, 95, 93, 98, 96, 92, 99, 91, 88, 86, 87, 97, 94, 90 and 89/1993 respectively were preferred by the first accused. Criminal Appeal Nos.268, 538, 533, 530, 534, 536, 532, 528, 267, 537, 527, 526, 529, 535 and 531/2004 respectively were filed by the second accused. The third accused in C.C.Nos.5/1998 and 7/1998 died pending trial. The third accused in C.C.Nos.10/1998, 11/1998 and 12/1998 were acquitted by the trial court. Criminal Appeal.No.127/1993 was filed by the third accused in C.C.No.6/1998. Criminal Appeal Nos. 122/1998 and 133/1998 were filed by the 3rd Crl.A. Nos.75 OF 2003 & connected cases 2 accused in C.C.Nos.8/1998 and 9/1998. Criminal Appeal Nos.135, 156, 134, 123, 149, 154 and 151/1993 were filed by the third accused in C.C.Nos.13/1998 to 19/1998 respectively. The Inspector of Police SPE/CBI, Kochi, in Crime No.RC.25/A/1993 prosecuted the appellants along with deceased and acquitted third accused in the respective cases alleging offences under Sections 120B r/w 420, 466, 468 and 471 IPC and Section 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act' for short) and also under Section 13(2) r/w 13(1) (d) of the PC Act and Sections 420, 468, 471 IPC. In C.C.No.8/1998 to 19/1998 offence under Section 419 IPC was also alleged against the third accused. Conspiracy for the said offence was also alleged against all the accused in those cases. 2. The prosecution case in brief is that the first accused was working as Field Officer/Assistant Manager in State Bank of India at its Main Branch, Kottayam from 13.06.1989 to 29.06.1992 and as such he is a public servant as defined under Section 2(c) of the PC Act. The Bank had scheme for Crl.A. Nos.75 OF 2003 & connected cases 3 Agricultural Cash Credit (in short 'ACC') loans for raising crops in Thiruvarp and Nattakam villages. The first accused being the Field Officer, it was his duty to recommend for sanctioning ACC loans to the eligible loanees after ensuring their need and possession of the agricultural land for which loans to be granted. The applicants for loan had to produce Tax Receipt and Possession Certificate issued by the respective Village Officer in proof of possession of land along with a No Due Certificate from the local Co-operative Bank certifying that the applicants had no dues with the Co- operative Bank in respect of the land. The first accused had the duty to identify the borrower and to conduct pre- sanction inspection to ascertain the location of the land, verify the credit worthiness of the party, the viability and feasibility of the proposal, the credit requirements and repaying capacity of the borrower. The prosecution would allege that the first accused with the intention to deceive State Bank of India, abusing his official position as a public servant committed criminal conspiracy with the common Crl.A. Nos.75 OF 2003 & connected cases 4 second accused and different third accused and in pursuance to the conspiracy, forged Tax Receipts and Possession Certificates as if issued from the Village Office, Thiruvarpu and No Due Certificate issued from the Thiruvarpu Village Service Co-operative Bank. In C.C.No.7 of 1998 to 19/1998, in pursuance to the criminal conspiracy the respective third accused also impersonated as fictitious persons and using the forged Tax Receipts, Possession Certificates and No Due Certificates, applications were made for ACC loans. The first accused being a member of the group of conspirators, without making any inspection, recommended ACC loans in favour of the third accused in C.C.Nos.5 and 6/1998. Loans were also recommended in favour of the 3rd accused in the other cases but as impersonate persons. Loan amount @ Rs.10,000/- each was disbursed to the respective third accused knowing that the Tax Receipts, Possession Certificates and No Due Certificates were forged and that the 3rd accused in C.C.Nos.7/1998 to 19/1998 are impersonated applicants. Crl.A. Nos.75 OF 2003 & connected cases 5 3. The third accused defaulted the loan instalments. Registered letters were sent to the loanees in the addresses available in the Bank records. Notices were returned with endorsement 'no such addressee'. The matter was reported to the zonal office Chennai. The Deputy General Manager of the zonal Office of the Bank directed PW2, the Deputy Manager of the Bank to conduct an enquiry. Accordingly, PW2 conducted the enquiry. Ext.P37 is the enquiry report. Falsification of the accounts, misappropriation, conspiracy, impersonation etc. were revealed out. On the basis of Ext.P37 report, PW1, the then Assistant General Manager of the Kottayam Main Branch filed Ext.P1 complaint before the CBI. PW1 in his complaint mentioned about 22 cases of misappropriation and forgery, more specifically mentioned in the annexure to the report. Ext.P1(a) is the Annexure. On the basis of Ext.P1, case as Crime No.RC.25/A/93 was registered for which Ext.P188 First Information Report was prepared. The investigation was taken over by PW39, an inspector attached to the SPE/CBI Kochi. PW39, after Crl.A. Nos.75 OF 2003 & connected cases 6 completing the investigation filed separate final reports alleging the above said offences before the trial Judge. The learned Judge took cognizance and issued process responding to which the appellants and the other accused entered appearance. Copies of the relevant records were furnished to all the accused. After hearing either side, having satisfied with a prima facie case to send the accused for trial, a charge for the said offences was framed in each case. When the charge was read over and contents explained, the accused pleaded not guilty. Hence, they were sent for trial. In Criminal M.C No.3482/2000, a petition filed by the first accused, this Court ordered joint trial of all the cases. Accordingly, all the cases were tried jointly. The evidence was recorded in C.C.No.5/1988. On the side of the prosecution PWs.1 to 39 were examined and Exts.P1 to 189 were marked. During the course of the cross examination, Exts.D1 to D6 and D8 to D12, certain portions of the CD statement of the witnesses were marked. Ext.D7, a photocopy of the letter dated 17.02.1993 sent by the Crl.A. Nos.75 OF 2003 & connected cases 7 Secretary Thiruvarp Service Co-operative Bank Limited was also marked. After closing the evidence for the prosecution the accused were questioned under Section 313(1) (b) of the Code of Criminal Procedure. The accused denied the incriminating evidence. 4. The first accused in a separate statement of defence stated that he was working as Field Officer in the Kottayam Main Branch of the State Bank of India as alleged by the prosecution and that he was in charge of the ACC loan in respect of Ward No.10 of Thiruvarpu Village and that ACC loans were under the priority sector and each branch had to attain a target and that since the loan amount was very low, there was no special guidelines or rules with regard to the procedure to be followed and that the Bank had a very liberal approach while sanctioning such loans and that the loans were sanctioned without pre-sanction inspection as was asked by the Manager of the Bank and that it was impossible to identify each and every applicant's property, since in Ward No.10 of Thiruvarpu Village there were vast Crl.A. Nos.75 OF 2003 & connected cases 8 areas extending to 3500 hectares which were water logged and that following the procedures and formalities adopted by the predecessors, the loans in dispute were recommended and that there was no conspiracy with the second accused or with any other accused. 5. The second accused in all the cases did not advance any specific defence. The third accused denied the allegation of conspiracy. No defence evidence was let in. 6. The learned Special Judge on appraisal of the evidence, in all cases, arrived at a conclusion of guilt against the 1st accused for offence u/s 13(2) r/w 13(1)(d) of PC Act. The second accused was found guilty for offence u/s 468 IPC. Accused one and two in C.C.No.5/1998 were found guilty for offence under Section 120B r/w Section 420, 466, 468 and 471 IPC and Section 13(1)(d) of the PC Act. In C.C.No.6/1988 accused 1, 2 and 3 were found guilty for offences under Section 120B r/w Sections 420, 466, 468 and 471 IPC and Section 13(1) (d) of the PC Act. The third accused was further found guilty for offence under Section 420 and 471 Crl.A. Nos.75 OF 2003 & connected cases 9 IPC. In C.C.No.7/1988 accused one and two were found guilty for offence under Section 120B r/w Section 420, 419, 466, 468 and 471 IPC and 13(2) r/w 13(1)(d) of the PC Act. In C.C.Nos.10, 11, and 12/1998 the third accused was found not guilty. Accused 1 and 2 were found guilty as in the other cases. In all other cases accused 1, 2 and 3 were found guilty for offences under Sections 120B r/w Sections 420, 419, 466, 468 and 471 IPC and under Section 13(2) r/w 13(1) (d) of the PC Act. The third accused in all the other cases were found guilty for offences under Sections 420, 419 and 471 IPC. Accordingly, the accused were convicted for the respective offences. 7. In all the cases, for offence under Section 120B, the accused 1 and 2 are sentenced to rigorous imprisonment for one year and fine of Rs.2,000/- with a default sentence of rigorous imprisonment for a further period of two months. For offence under Section 13(2) r/w 13(1)(d) of the PC Act, in all the cases, the first accused is sentenced to rigorous imprisonment for one year and fine of Rs.1,000/- each with a Crl.A. Nos.75 OF 2003 & connected cases 10 default sentence of rigorous imprisonment for a further period of one month. In all the cases the second accused is sentenced to rigorous imprisonment for four years and a fine of Rs.2,000/- with a default sentence of rigorous imprisonment for a further period of two months for offence u/s 468 IPC. Except in C.C.Nos.5, 7, 10, 11, and 12/1988 the third accused is sentenced to rigorous imprisonment for a period of one year and a fine of Rs.1,000/- under Section 420 IPC and rigorous imprisonment for six months each for offence under Section 419 IPC and 471 IPC. Assailing the above conviction and sentence these appeals were preferred. Though conspiracy in respect of 466 IPC was also alleged, no charge was framed against any accused regarding offence under Section 466 IPC. Consequently, there is no finding also regarding conspiracy for offence under Section 466 IPC. 8. The fact that the first accused was the Assistant Manager/Field Officer employed in State Bank of India at its Main Branch, Kottayam, from 13.6.1989 to 29.6.1992 is Crl.A. Nos.75 OF 2003 & connected cases 11 admitted by the first accused as stated earlier. The evidence of PW1, the Assistant General Manager during the year 1992-1994, PW2, the Divisional Manager from June 1992 to June 1994, PW3, the cashier from December 1990 onwards, PW5, the Clerk-cum-Typist during the year 1988 to March 2000, PW21, the Chief Manager during the year 1991-1995, PW7, the Clerk, PW20, the Branch Manager and PW22, the Assistant Manager are harmonious that the first accused was working as the Assistant Manager/Field Officer in the Bank. PW35, the Chief General Manager of Chennai circle had also given evidence in support of the evidence of the above witnesses. PW35 had further deposed that he was the Officer competent to remove the first accused from service and after perusing the investigation records, he had issued Ext.P180 order according sanction to prosecute the first accused. As I mentioned earlier the status of the first accused as Field Officer is not at all disputed. So also, the allegation of the prosecution that in his official capacity, the 1st accused would come within the definition of the public Crl.A. Nos.75 OF 2003 & connected cases 12 servant under Section 2(c) of the PC Act is not disputed. Therefore, the finding of the trial Judge that the first accused was working as Assistant Manager/Field Officer in the Main Branch of the State Bank of India, Kottayam during the relevant period is based upon the above unchallenged evidence of the above witnesses. That finding requires no interference and is hereby confirmed. The learned counsel for the 1st accused didn't assail the finding of the trial court that the 1st accused would come with definition of the Public Servant as defined u/s 2(c) of the PC Act. 9. During the tenure of the first accused more than 2000 ACC loans were granted. The conspiracy, misconduct, falsification etc. alleged are only in respect of the above 15 cases. In support of the loan transaction, the Assistant General Manager during the period 1992-1994 was examined as PW1 by the prosecution. He would give evidence with respect to the documents seized. Exts. P2, P11, P20, P26, P36, P45, P54, P65, P75, P83, P91, P100, P108, P117 and P127 respectively are the control Crl.A. Nos.75 OF 2003 & connected cases 13 card/ledger sheet maintained regarding the loan transactions in all the above cases. Exts.P12, 3, 21, 27, 37, 46, 58, 66, 76, 84, 92, 101, 109, 118, and 128 respectively are the loan applications submitted by the third accused in all the cases. The evidence of PW1 would further show that the loan amount of Rs.10,000/- was disbursed by two instalments on 6.11.1990 and 26.11.1990 in C.C.No.5/1998. In C.C.No.6/1998 the loan amount of Rs.10,000/- was disbursed by two instalments on 15.11.1990 and 26.11.1990. In C.C.No.7/1998 the loan amount was disbursed by two instalments on 12.12.1990 and 20.12.1990. In C.C.No.8/1998 the loan amount was disbursed on 2.1.1991 and 17.1.1991. In C.C.No.9/1993 the loan amount was disbursed on 11.2.1991 and 2.3.1991. In C.C.No.10/1998, the loan amount was disbursed on 11.2.1991 and 22.2.1991. In C.C.No.11/1998 the loan amount was disbursed on 5.8.1991 and 7.9.1991. In C.C.No.12/1998, the loan amount was disbursed on 13.8.1991 and 22.10.1991. In C.C.No.13/1998, the Crl.A. Nos.75 OF 2003 & connected cases 14 disbursements were made on 18.12.1992 and 28.10.1991. In C.C.No.14/1998, the disbursements were made on 18.9.1991 and 28.10.1991. In C.C.No.15/1998, the disbursements were made on 20.9.1991 and 28.10.1991. In C.C.No.16/1998 the disbursements were made on 26.09.1991 and 11.11.1991. In C.C.No.17/1998 the loan amount was disbursed on 1.10.1991 and 9.11.1991. In C.C.No.18/1998 the disbursements were made on 26.11.1991 and 10.12.1991. In C.C.No.19/1998 the disbursements were made on 3.12.1991 and 17.12.1991. All the disbursals were recorded in the control card cum ledger sheet referred earlier. The receipts of the amounts were also not disputed. 10. In C.C.No.5/1998, the third accused is the father of the 2nd accused. In C.C.No.5/1998 and C.C.No.6/1998, there is no impersonation, but, the third accused had no paddy field to avail loan for the agricultural purposes. But loan was applied and availed as if they had agricultural land. To support the claim, Tax Receipts, Possession Certificates and No Due Certificates were forged. In all the other cases the Crl.A. Nos.75 OF 2003 & connected cases 15 third accused impersonated as fictitious persons and availed loan. The third accused Raghavan in C.C.No.7/1988 was impersonated as Raman, S/o.Ayyappan, Vadakkepparambil House. In C.C.No.8/1988, the third accused Gopi, S/o.Krishnan was impersonated as G.Rajappan, S/o.Gopalan. In C.C.No.9/1998, the third accused Rajamma Babu was impersonated as Rajamma Raju. In C.C.No.10/1998, the third accused E.R.Shaji was impersonated as C.Raju, S/o.Chellappan, Puthanparambil, Thiruvarpu. In C.C.11/1998, the third accused Prabhakaran, S/o.Sivaraman was impersonated as Divakaran, S/o.Velayudhan, Arakkal Veedu, Thiruvarpu, Kottayam. In C.C.No.12/1998, the third accused M.K.Raju, S/o.Kumaran was impersonated as Madhavan Soman S/o. Madhavan, Kizhakkedath House, Thiruvarpu. In C.C.No13/1998, the third accused K.V.Gopalan, S/o.Raghavan, Nedumparambil was impersonated as P.R.Raju, S/o.Kesavan, Puthiyachirayil veedu, Thiruvarpu. In C.C.No.14/1998, third accused M.P.Sarada, W/o.Somarajan, Annai, Velloor.P.O was impersonated as K.M.Indira, Crl.A. Nos.75 OF 2003 & connected cases 16 D/o.Madhavan Kochuparambil House, Thiruvarpu. In C.C.No.15/1998, the third accused E.R.Shaila, W/o.Gopalan, Neduparambil veedu, Velloor.P.O., Pampady was impersonated as Anila Shajimon, W/o.Shajimon, Pathinanchilchira veedu, Thiruvarp. In C.C.No.16/1998, the third accused M.K.Rajan, S/o.Kesavan was impersonated as Vasudevan, S/o.Kuttappan, Pazhachirayil house, Thiruvarp. In C.C.17/1998, third accused N.Ponnappan was impersonated as A.Hamsa, S/o.Aboobecker, Amarathu House, Thiruvarpu. In C.C.No.18/1998, the third accused N.K.Raju, S/o.Kuttappan, Neduparambil veedu, Velloor, Pampady was impersonated as Shajan Varghese, S/o.Yohannan Itty, Ezhacheriyil veedu, Thiruvarp. In C.C.No.19/1998, the third accused A.K.Ponnappan, S/o.Narayanan, Thalakkulam, Pathaputtam P.O, was impersonated as E.T.Sunny Thomas, S/o.Thomas, Anpathil veedu, Thiruvarp. 11. The respective control card cum ledger sheet in C.C.No.7/1998 to 19/1998 would show that it bears the Crl.A. Nos.75 OF 2003 & connected cases 17 photograph of the third accused. The loan applications also contain the photographs. The photographs in the loan applications and the control card cum ledger sheets would show that the loan applications were made by the 3rd accused in C.C.No.7/1998 to 19/1998, not in their names, but in the names of persons mentioned in the earlier paragraph. The address given are also not of the 3rd accused. In all the control card cum ledger sheets there are specimen signatures/thumb impressions of the third accused out of which the third accused in C.C.No.7/1988 to 19/1998 affixed their specimen signatures/thump impressions as if the fictitious persons. Each file would contain Inspection Card, Tax Receipt, Possession Certificate and No Due Certificate. Tax Receipts and Possession Certificates are as if issued from the Village Office, Thiruvarp. No Due Certificates are as if issued from the Service Co-operative Society. All the files contain conditions of the loan under the signature of the 3rd accused and simple mortgage deed executed by the third accused. In the inspection card also, there is a Crl.A. Nos.75 OF 2003 & connected cases 18 photograph of the third accused. Look at the photographs in the loan applications, control card cum ledger sheets and inspection cards and a reading of the names and addresses of the loan applicants in comparison with the names and addresses of the 3rd accused in C.C.Nos.7 to 19/1998 would convincingly establish the impersonation. The 3rd accused in C.C.No.7/1998 to 19/1998 pretended to be persons with different names and addresses, applied for loan and obtained the loan. They acknowledged the amount as if persons with different names and addresses in the loan applications and control card cum ledger sheets. 12. Going by the impugned judgment, it is seen that the learned Special Judge had discussed every document produced in each case separately. Since the offence alleged in all cases are identical and documents are of same nature, I do not think that I had to repeat the same exercise separately. Common discussion would suffice. In all the cases Possession Certificates, Tax Receipts (except in C.C.No.5/1998) and No Due Certificates were produced. The Crl.A. Nos.75 OF 2003 & connected cases 19 question is whether there is forgery and the forged documents were used as genuine documents for availing loans and there is cheating by personation as alleged. Forgery alleged, as mentioned earlier is in respect of the Tax Receipts, Possession Certificates and No Due Certificates. To prove the forgery in respect of the Tax Receipts and the Possession Certificates, prosecution had relied upon the testimonies of Pws.6 and 12 to 16. PW6 was the Village Officer, Thiruvarpu from 14.06.1994 to 21.1.1995. Exts.P9, P19, P25, P34, P42, P54, P63, P73, P82, P90, P98, P107, P116, P125 and P135 are the Possession Certificates. Exts. P8, P24, P33, P41, P51, P62, P72, P81, P89, P97, P106, P115, P124 and P134 are the Tax Receipts. Referring to those documents PW6 would depose that those Possession Certificates and Tax Receipts were not issued from the Thiruvarpu Village Office and were not signed by the then Village Officer. PW6 mentioned about the signature after referring to the signatures of his predecessors contained in the official records. It was also deposed by PW6 that in the Crl.A. Nos.75 OF 2003 & connected cases 20 tax receipts, the round seal affixed is that of the Panachikkadu Village Office and not that of the Thiruvarpu Village Office. It is not disputed that properties mentioned in the Possession Certificates and the Tax Receipts were stated to be within the Thiruvarpu Village Office. PW6 had also proved the specimen impression of the seal of the Village Office, Thiruvarpu as well as the designation seal of the Village Officer. Ext.143 series are the specimen impression of the seals. A look at the specimen impressions of the seal of the Village Office as well as the designation seal of the Village Officer affixed in the Possession Certificates and the Tax Receipts would show that both the seals of the Village Office and the Village Officer are entirely different. PW12, the then Village Officer had deposed that Tax Receipts Exts.P41, P51, P62, P72, P81, P89, P97, P106, P115, P124 and P134 would bear the date when PW12 was the Village Officer. Exts.P8, P24 and P33 Tax Receipts in C.C.7/1998 and 8/1998 bear the dates when C.M.Joseph was the Village Officer. Exts.P34, P42, P52, P63, P73, P82, P90, P98, P107, Crl.A. Nos.75 OF 2003 & connected cases 21 P116, P125 and P135 Possession Certificates would bear the dates when PW12 was the Village Officer. Exts.P9, P19, and P25 Possession Certificates would bear the dates when C.M.Joseph was the Village Officer. PW12 had deposed that the signature contained in those Tax Receipts and Possession Certificates were not put by either PW12 or by C.M.Joseph. PW12 had also deposed that the designation seal of the Village Officer affixed on the Possession Certificate are not that of the Village Officer. Though PW12 was subjected to searching of cross examination no material was disclosed to disbelieve him. 13. PW13 was the Village Officer, Panachikkadu Village from 1987 to 1991. He was examined to prove that blank Tax Receipt forms bearing numbers 76 to 92 from book No.314 were missed from his office and it was brought to the notice on 9.11.1990. PW13 had deposed that Exts.P8, P24, P33, P41, P51, P62, P72, P81, P89, P97, P106, P115, P124 and P134 are prepared on the stolen blank Receipts forms. He had also deposed that the stolen blank Tax Crl.A. Nos.75 OF 2003 & connected cases 22 Receipts contained the seal of the office and that the signatures in those Tax Receipts are neither that of the Village Officer, Panachikkadu nor that of the Village Assistant. PW15, the Villageman, Panachikkadu and PW16, the Village Assistant, Panachikkadu were also examined to prove the missing of blank tax receipts from the Village Office, Panachikkadu. Evidence of PW13, 15 and 16 regarding the missing of the receipts from the Village Office also remains unimpeached despite searching cross examination. The round seal found on the Tax Receipts would show that it was that of the