BAIL SLIP The Appellant in all Crl.A.Nos.400, 527 and 561/1999 was released on bail in and by the order of this Court in Crl.M.P.No.3856/99 dated 11.6.1999, Crl.M.P.No.5392/99 dt. 14.7.99, Crl.M.P.6196/99 dated 27.7.1999 respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 02.03.2007 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.Nos.400, 527 & 561 of 1999 K.Balu .. Appellant in all the above 3 cases vs. State rep by The Inspector of Police, The Special Police Establishment, Central Bureau of Investigation/ Anti-Corruption Bureau. Chennnai. .. Respondent in all the above 3 cases Prayer: These appeals have been preferred against Judgment dated 07.09.1998, in C.C.No.18, 16 & 17 of 1998 respectively on the file of the Court of III additional District Judge/Special Judge for CBI Cases, Coimbatore. For Appellant : Mr.Veera Kathiravan (in all the above 3 cases) For Respondent : Mr.N.Chandrasekran, Spl. Public Prosecutor for CBI cases, (in all the above 3 cases) JUDGMENT These appeals have been preferred against Judgments in C.C.No.18, 16 & 17 of 1998 respectively, on the file of the III Additional District Judge/Special Judge for CBI cases, Coimbatore. The accused has been charged under Section 409 IPC & 477 IPC and under Section 13(1)(c) r/w 13 (2) of the Prevention of Corruption Act in all the three cases. There are totally three charges under the above provisions of law in each of the above said three calendar cases. Even though the accused is one and the same person viz. K.Balu S/o.Kali separate trial has been conducted in each of the above said cases and separate judgments have been delivered by the learned trial Judge. https://hcservices.ecourts.gov.in/hcservices/ 2. In Crl.A.400/1999 (C.C.No.18/1998) :- 2(a) On appearance of the accused on summons the learned trial judge has furnished copies under Section 207 of Cr.P.C and when charges were framed under Section 409 IPC and 477(a) IPC (4 counts) and under section 13(1)(c) r/w 13(2) of the Prevention of Corruption Act 1988 and explained to the accused and when questioned the accused pleaded not guilty. Before the trial Court P.Ws.1 to 9 were examined and Ex.Ps.1 to 62 were marked. 2(b) P.W.1 is the Intelligence Officer in United India Insurance Company. The accused was working as a cashier in United India Insurance Company. P.W.1 would depose that on the basis of the complaint received in the United India Insurance Company at Dharmapuri Branch, he conducted enquiry and perused ACS-3 receipt book for the period from 1987 to 1990, ACS-4, premium register and ACS-50 daily collection register and also bank challans and the result of the enquiry revealed that: i) the accused had misappropriated the premium amount paid in the United India Insurance Company at Dharmapuri Branch as a cashier. Out of the collected premium amount the accused had deposited only a portion of the same and misappropriated the remaining portion. ii) The accused has also misappropriated the amount which were deposited by cash by showing the same as received by way of cheque thereby falsified the documents. iii) As per ACS-3 receipt book, receipts will be issued for the premium amount paid for the policy. In some of the ACS receipts they were cancelled and the amount deposited under the receipts were misappropriated. Those receipts were prepared only by the accused. Usually 5 receipts will be prepared under ACS-3 receipt book. Original receipt will be issued to the policy holder. If the premium amount is deposited by cash the 2nd & 3rd copies of the receipt will be kept in the office. If the premium amount was deposited by way of cheque the receipts 2 & 3 will be sent to the bank. The 2nd copy will be kept in the bank and the 3rd copy will be sent to the insurance company. 4th copy will be kept with the policy file. 5th copy will be kept in ACS-3 receipt book itself. Only on the basis of ACS-3 receipt, ACS-4 register will be maintained. P.W.1 would further depose that the accused was incharge of preparing ACS- 3, 4 & 50 registers and that in his enquiry he came to know that a sum of Rs.49,545/- has been misappropriated by the accused. When the accused was personally questioned by P.W.1, he has admitted for having misappropriated the said amount and gave a confession statement Ex.P.1 and that now the accused is not in service since he was dismissed from service. 2(c) P.W.2 is the Senior Divisional Manager of United India Insurance Company, Madras Divison, Office No.7. He was the then Divisional Manager of United India Insurance Company at Hosur. United India Insurance Company Dharmapuri Branch came within the jurisdiction of Hosur Office. He speaks about the manner under which ACS-3, 4 & 50 registers are maintained and that the accused was working as a cashier in United India Insurance Company at Dharmapuri Branch. https://hcservices.ecourts.gov.in/hcservices/ 2(d) P.W.3 is the Administrative Officer United India Insurance Company Ltd. He would also depose to the effect that the accused was working as a cashier of United India Insurance Company at Dharmapuri Branch, which come within the jurisdiction of United India Insurance Company of Hosur and that the insurers of the vehicle used to pay the premium and after the receipt of the premium amount the same will be entered in ACS-3 and the total amount collected under ACS-3, receipt book, will be carried over in ACS-4 register and every month a copy of the accounts in ACS-4 will be sent to the Divisional Office and ACS-50 register will contain the particulars of the amount in hand and the the particulars about the cheque. The amount collected on a particular day will be sent to Canara Bank for deposit through Pay-in-slip. It is the duty of the cashier to verify the counter-foil kept in the office with the seal of the bank. Canara Bank at the end of every week use to sent the amount deposited by the United India Insurance Company to the State Bank of India. On the basis of the statement sent by the Canara Bank, the cashier of Dharmapury Branch of United India Insurance Company use to prepare reconciliation statement and forward the same to the Divisional Office and that the accused on 9.4.1990 had collected the premium amount of Rs.10,299/- from various policy holders. Ex.P.2 is the receipt (4 in number) of ACS-4 register. But the accused had deposited only Rs.9,543/- with the Canara Bank on the next day. Ex.P.3 is the pay-in-slip. Those documents were written by the accused in his own hand. On 10.4.1990 the accused had colleted Rs,4698/- by cash. Ex.P.4 to P.20 are the receipts. But the accused has shown in ACS-4 receipts only a sum of Rs.4,694/- was collected towards premium. Ex.P.21 (2 pages) is for ACS-4 register. On the next day the accused had deposited only Rs.4,440/-. Ex.P.22 is the pay-in-slip. On 4.4.1990 the accused had collected Rs.3,646/- from various policy holders. Ex.P.23 (3 chits) in ACS-4 receipt is the evidence for the collection of Rs.3,646/-. The accused had deposited Rs.2,986/- on 5.4.1990. Ex.P.24 is the pay-in-slip for the deposit of the said amount with the Bank. The said pay-in-slip was also prepared by the accused. On 13.07.1990 the accused had collected Rs.1,245/- from one Vijayan by way of cash. Ex.P.25 is the copy of the accounts department receipt to evidence the said collection. In Ex.P.26 the accused had stated that the said amount was collected by cash. But the said amount was not deposited with the bank. In ACS-4 register, the accused has noted that he had received the said amount by way of cash and striked out and has written as though he has received by cheque. Ex.P.27 is the said entry. The said cheqque was also not sent to the bank. On 13.07.1990 the accused has collected Rs.1,513/- by way of cash from one Selvaraj. Ex.P.28 is the copy of the Accounts Department. In Ex.P.28 the accused has stated that the said amount was collected by way of cheque. But in the copy of the police, Ex.P.29 he has mentioned that the said amount was collected by him by way of cash. But neither cash nor cheque was deposited by him in the Bank. But in the ACS-4 receipt Ex.P.30 he has mentioned as though he had received the said amount by way of cheque. On 31.8.1990 the accused had collected Rs.11,090/- from 14 persons and prepared ACS-3. Ex.P.31 to P.44 are the receipts. But the accused has https://hcservices.ecourts.gov.in/hcservices/ not deposited the entire amount, but only a portion viz.Rs.9,090/- on 3.9.1990. Ex.P.45 is the pay-in-slip was also prepared by the accused. On 20.9.1990 the accused had collected Rs.11,233/- by way of cash from10 persons and he has prepared ACS-3. Ex.P.46 to 55 receipts were prepared by the accused. But the accused has not deposited the entire amount but he has deposited only Rs.10,233/-. Ex.P.56 is the pay-in-slip. Ex.P.57 is the confession statement signed by the accused before the Regional Manager, United India Insurance Company, Coimbatore, dated 15.11.1990. 2(e) P.W.4 is the Assistant Divisional Officer on United India Insurance Company, Dindugal. He was working as Administrative Officer of the United India Insurance Company at Hosur from October 1987 to July 1989. He would depose that he used to check the amount deposited with Canara Bank from each branch of the United India Insurance Company with that of the statement of accounts received from Canara bank and that from Dharmapuri Branch of United India Insurance Company the accounts were not submitted every month regularly to the Regional Office and objecting this irregular filing of the statements he sent letters to the United India Insurance Company at Dharmapuri Branch. He has further deposed that it is the duty of the cashier to deposit the collected amount with Canara Bank. 2(f) P.W.45 is the Senior Manager of Indian Overseas Bank, Delhi Branch. He was working as Manager of Indian Overseas Bank, Dharmapuri from April 1990 to September 1992. On 13.7.1990 one Vijayan has not given any cheque for Rs.1,245/-, cheque No.651146 and that he has not received any cheque at the Indian Overseas Bank at Dharmapuri. Ex.P.58 is the certificate given by him to the effect that he has not received Ex.P.25- cheque in the bank. 2(g) P.W.6 was the then Indian Bank Manager at Palacode from August 1990 to August 1995. After perusing the relevant register he informed the Inspector of Police CBI that in his bank a cheque drawn for Rs.1,513/- bearing No.117164 by one Selvaraj was not received. Ex.P.59 is the certificate given by him to that effect. 2(h) P.W.7 is the Development Officer of the United India Insurance Company, Dharmapuri Branch. The accused was working in the same branch from 1986 to 1990 and that he had collected the insurance premium from the workers of United India Insurance Company at Dharmapuri Branch and handed over the same to the accused who was working as a cashier at that time. He had collected the insurance amount for a lorry bearing registration No.6799 from one Chellappan less Rs.836/- and paid to the then cashier-accused and that the cashier had noted the same in the accounts and that on 21.7.1990 he had collected Rs.836/- from the said Chellappan and paid the same to the accused. But the accused has not given any receipt for the payment of Rs.836/-. Only on 20.8.1990 he gave receipt. Ex.P.60 is the said receipt. The said receipt was never cancelled or altered. P.W.7 has also identified the signatures of the accused in Ex.P.2 to P.57 and Ex.P.60. https://hcservices.ecourts.gov.in/hcservices/ 2(i) P.W.8 is the Manager of Canara bank, Dharmapuri Branch, from 1989 to 1992. At that time the United India Insurance Company, Dharmapuri Branch, was having a current account No.U.2. P.W.8 would depose that the accused as cashier of United India Insurance Company used to deposit the amount collected in the United India Insurance Company office through pay- in-slip and after receiving the amount a counter-foil will be given to the person who has deposited the amount. Ex.P.25 and P.28 are the forms issued by the bank at the time when the United India Insurance Company deposits the amount through cheques. He has further deposed that the endorsement in red ink in Ex.P.25 & P.28 have not been made by the employee of his bank. He has further deposed that in Ex.P.25 & P.28 there is no seal of Canara Bank. 2(j) P.W.9 is the Investigation Officer, who would depose that Deputy Superintendent of CBI has registered a case against the accused under Section 409, 420, 467, 468 & 471 r/w 13(1)(c) & (d) in Cr.No.56(a)/ 1990 and that the said complaint was forwarded to the Special Court of CBI at Coimbatore. Ex.P.61 is the FIR, which contains the signature of Mr.M.M.Rao, DSP. He had conducted the investigation after getting necessary permission from the Chief Metropolitan Magistrate, Chennai under Ex.P.62. He has examined the witnesses and recorded their statements. After completing the investigation he had laid chargesheet against the accused on 27.3.1991 under sections 409, 477A IPC and under Section 13(2) r/w 13(1) (c)(d) of the Prevention of Corruption Act, 1988. He has further deposed that even at the initial stage of the investigation itself the accused was dismissed from service. 2(k) When incriminating circumstances were put to the accused, accused pleaded not guilty. After going through the evidence both oral and documentary the learned trial Judge has come to the conclusion that the prosecution has proved the guilty of the accused under Section 409, 477(a) IPC and under section 13(1)(c) r/w 13(2) of the Prevention of Corruption Act, 1988, and convicted and sentenced the accused to undergo one year RI under each of the above mentioned provisions of law. Aggrieved by the findings of the learned trial Judge, the accused has preferred this appeal. 2(L) Now the point for determination in this appeal is whether the guilt against the accused under Section 409 & 477A IPC and under Section 13(1)(c) r/w 13(2) of the Prevention of Corruption Act, 1988, has been proved beyond any reasonable doubt to warrant conviction under the above provisions of law? 3. In Crl.A.527/1999 (C.C.No.16/1998) :- 3(a) The short facts of the prosecution case are as follows:- While the accused was working as cashier of the United India Insurance Company at Dharmapuri Branch during 1987-1990 the accused had collected Rs.38,194/- from the insurance policy holders on various dates between https://hcservices.ecourts.gov.in/hcservices/ 3.3.1988 and 16.2.1989. But he has deposited a sum of Rs.26,925/- alone with the Canara Bank thereby misappropriated a sum of Rs.11,269/- and in the receipt book ACS-4 and premium collection register ACS-3 a sum of Rs.3,630/- received under receipt No.141928 dated 5.4.1988 for the payment received by cash, created false entries for the said amount and thereby misappropriated the said sum of Rs.3,630/-. In like manner on 30.12.1988 as per receipt No.363089 the accused had received a cheque for Rs.1,812/- but by making false entries and creating false documents had misappropriated the said amount. On 16.2.1989 under receipt No.363437 the accused had received Rs.2,327/- by way of cheque but by making false entries had misappropriated the said amount. On 2.8.1988 the accused had deposited Rs.1,925/- but in the counter-foil of the bank's chellan he has falsely credited the amount as Rs.2,925/- instead of Rs.1,925/-. On 14.2.1989 the accused had deposited Rs.16,979/- in Canara bank. But in the counter-foil of the bank's chellan he had falsely made corrections to the effect as he has deposited a sum of Rs.17,979/- instead of Rs.16,979/- and that while the accused was working as a public servant as a cashier of United India Insurance Company, Dharmapuri Branch, to get wrongful gain by misusing his power misappropriated a sum of Rs.11,269/-. The complaint was taken on file by the I Additional Sessions judge (Special Court) and on appearance of the accused on summon copies under Section 207 of Cr.P.C were furnished to the accused and on the basis of the complaint the learned trial judge framed charges under Section 409, 477A IPC and also under Section 13(1)(c) r/w 13(2) of the Prevention of Corruption Act, 1988 and the charges levelled against the accused were explained to the accused and when questioned the accused pleaded not guilty. On the side of the prosecution P.Ws.1 to 7 were examined and Ex.P.1 to P.1o were marked. 3(b) P.W.1 is the Vigilance Officer of the United India Insurance Company during the relevant point of time. As per the instructions of the Chief Vigilance Officer he proceeded to the United India Insurance Company, Dharmapuri Branch, to investigate in respect of the complaint of misappropriation received and conducted an investigation. During his investigation he had checked ACS-3 receipt book, ACS-4 Premium Register and ACS-50 Daily collection register relating to the period 1987- 1990 and at the result of his investigation it was brought to light that the accused has misappropriated money of the United India Insurance Company by three ways. After misappropriating a portion of the premium amount by the policy holders and to conceal the said offence he had falsely created the documents by making corrections in the counter-foils and also making correction in the bank reconciliation statement. Secondly the accused had misappropriated the amount deposited by the policy holders who have paid the premium by way of cash, the accused has falsified the documents so as to appear that those amounts were deposited by policy holders by way of cheque. After depositing the bogus cheques in the bank for collection and showing those cheuqes as pending outstanding for collection, the accused had misappropriated the cash deposited towards premium by the policy holders. Thirdly if a policy holder deposits the premium amount a receipt will be issued under ACS-3 receipt book, https://hcservices.ecourts.gov.in/hcservices/ thereafter only policy will be issued to the policy holder. As per ACS-3 receipts only after the receipt of the premium and while the policy was in force the accused had cancelled ACS-3 receipts and misappropriated the amount paid by the policy holders under Acs-3. Even though the accused had cancelled ACS-3 receipts actually as against the said policy holder the policy was in force. Usually 5 copies will be taken for the ACS receipts and the original was issued to the policy holder and 2nd & 3rd copies will be kept in the office and if the premium amount was paid in cash. In case if the premium amount was paid in cheque the said 2nd & 3rd copies of ACS-3 receipts will be sent to concerned bank. The bank will retain the 2nd copy and forward the 3rd copy to the insurance company. The bank will acknowledge for having received the 2nd copy in the 3rd copy itself. The 4th copy will be kept in the file and 5th copy will be kept in ACS-3 book itself. On the basis of Acs-3 receipts, ACS-4 register will be maintained and on the basis of ACS-3 receipt book and on the basis of ACS-4 register, ACS-50 daily collection statement will be prepared and on the basis of the ACS-50 register bank challan will be prepared and the amount will be deposited in the bank. The accused was incharge of preparing ACS-3, 4 & 50 registers. P.W.1 would further depose that during his investigation it was brought to light that a sum of Rs.49,545/- was the amount misappropriated by the accused and when P.W.1 interrogated the accused, the accused had admitted for having misappropriated the amount belonging to the United India Insurance Company and to that effect he gave a confession statement dated 27.09.1990 which is Ex.P.1 and that subsequent to his enquiry the accused was dismissed from service. 3(c) P.W.2 is the Senior Divisional Manager of the United India Insurance Company, Division No.7, Madras. He was working as a Divisional Manager in the United India Insurance Company, Hosur from May 1989 to July 1993. The United India Insurance Company, Dharmapuri Branch, comes within the jurisdiction of the Hosur Division. He speaks about the procedure in taking vehicular insurance. If a person wants to take insurance in the United India Insurance Company he should give a proposal to the Department and that on the basis of the proposal the amount to be paid towards the risk is to be assessed and informed the said person. It is the option of that person to pay the premium amount by way of cheque or by Demand Draft to the cashier. After payment of the said premium amount ACS-3 receipt will be issued. There will be one original ACS-3 receipt and 4 copies for the same and the original receipt will be handedover to the policy holder and the remaining 4 corban copies will be kept in various branches of the United India Insurance Company. One copy of ACS-3 receipt will be kept in the receipt book and the said receipt the particulars regarding the payment was made either by cash or by cheque will be noted. Every days collection will be reflected in ACS-4 register. The collection made through the cheque as well as the collection made through cash will be shown separately in ACS-4 register. ACS-5 is being maintained in the United India Insurance Company. The said register will contain the particulars regarding what was the amount under each head and who had deposited the premium amount and whether the premium was paid directly by https://hcservices.ecourts.gov.in/hcservices/ the policy holder or by the agent. Apart from those registers another register by name ACS-50, daily register, is also being maintained in the United India Insurance Company. Every day collection through cash and cheque will be entered in the said register. Even pending balance and closing balance will be noted in the said register. The collection particulars noted in ACS-4 register as well as the collection made under Ex.A.3 register will tally with the collection particulars maintained in ACS-50 register. If there is any discrepancy found in the ACS-50 register then the cashier alone is responsible for the same. It is the usual practise in the United India Insurance Company that the collected amount both by way of cheque as well as by way of cash are to be remitted with the bank on the following day through challan. After receiving the first premium amount either by way of cheque of by way of cash the policy will be issued. If the cheque is dishonoured then the insurance policy will be cancelled. Every month a statement will be sent by the bank to the insurance company branch containing the particulars regarding the amount received by the branch every month and also about the cheques and the amount collected in the account of the concerned branch of the United India Insurance Company. A copy of ACS-50 register will also be sent to the Divisional Office. Reconciliation statement will be prepared on the basis of the copy of ACS-50 register and also on the basis of monthly statement of the bank in divisional office. P.W.2 would also corroborate the evidence of P.W.1 to the effect that the accused was working in the United India Insurance Company, Dharmapuri Branch, while he was working as Senior Divisional Manager of Hosur Divisional office. 3(d) P.W.3-Balakrishnan, is the then Assistant Administrative Officer of the United India Insurance Company, Hosur branch, during 1992. At that time the accused was working as a cashier of United India Insurance Company at Dharmapuri Branch. The United India Insurance Company, Dharmapuri Branch, comes within the jurisdiction of Hosur division of the United India Insurance Company. He would depose that all sorts of vehicles will be insured in the United India Insurance Company, Dharmapuri Branch and on payment of the first premium by the policy holder receipts will be issued by the cashier. As per ACS-3 receipt book, 5 copies will be prepared and the original receipt will be issued to the policy holder who had deposited the premium and another receipt will be kept in the receipt book itself. The 3rd copy will be sent to the account's section. 4th copy will be sent to underwriting section. 5th copy will be