Madras High Court
Ravi vs The State Rep. By on 14 July, 2008
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.07.2008 CORAM: THE HONOURABLE MR.JUSTICE S.TAMILVANAN Criminal R.C. Nos.385, 386 and 603 of 2005 and Crl.M.P.Nos.2690, 2691, 2692 and 2693 of 2005 Ravi .. Petitioner in Crl.R.C.No.385/2005 A.S.Mohammed Mushtaq .. Petitioner in Crl.R.C.No.386/2005 C.Viswanathan .. Petitioner in Crl.R.C.No.603/2005 Vs. The State rep. by The Inspector of Police CCIW / C.I.D, Vellore. .. Respondent in all the Criminal Revision Criminal Revision Petition filed under Section 397 and 401 Cr.P.C, against the Judgment, dated 17.02.2005 delivered by the Principal Sessions Judge, Vellore District in Crl.A.Nos.64 of 2004 and 65 of 2004, confirming the conviction and sentence imposed by the Judicial Magistrate, No.II, Vellore in C.C.No.3 of 2003, dated 08.04.2004. For petitioners : Mr.N.Baskaran in Crl.R.C.Nos.385/05 Mr.R.Sankarasubbu for Mr.K.Sahul Hameed in 386/05 Mr.A.Thiyagarajan, Senior Counsel in Crl.R.C.No.603/05 For respondent : Mr.R.Muniyapparaj Govt. Advocate (Crl.side) in all the Criminal Revisions COMMON ORDER
All these Criminal Revisions are arising out of a common Judgment, dated 17.02.2005 rendered by the Principal Sessions Judge, Vellore in Crl.A.No.64 of 2004 and preferred against the conviction and sentence imposed by the Judicial Magistrate No.II, Vellore in C.C.No.3 of 2003.
2. The revision petitioner in Crl.R.C.No.385 of 2005, Assistant Secretary of Primary Agricultural Co-operative Bank, Virinjipuram was made as A3 before the trial court, criminal revision petitioner in Crl.R.C.No.386 of 2005, Secretary of the Bank was A2 and the revision petitioner in Crl.R.C.No.603 of 2005, President of the Primary Agricultural Co-operative Bank at Virinjupuram was made A4 for the alleged offence committed by them and prosecuted within the jurisdiction of the Court below.
3. As per the prosecution case, when the first accused, A1 was the appraiser to the Primary Agricultural Co-operative Bank, Virinjipuram, , A2 was the Secretary, A3 was the Assistant Secretary and A4 was the President of the Bank. During the relevant period, they have alleged to have conspired together, falsified the records and gave jewel loans to various fictitious persons in Loan Nos.5050, 5062, 5067, 5069, 5089, 5094 and 5101 and thereby misappropriated a sum of Rs.1,96,132/- of the Bank and thereby committed offence punishable under Sections 409, 418 r/w 120 (B) and 477 (A) IPC.
4. In order to establish the prosecution case, on the side of the prosecution, P.Ws.1 to 13 were examined and exhibits A1 to A101 were marked and on the side of the accused, D.W.1 was examined. However, no exhibit was marked on the side of the accused, revision petitioners herein.
5. The trial court, considering the evidence both oral and documentary, and also the arguments advanced by both sides, held that A1 was not guilty under Sections 409 and 418 r/w 120 (B) IPC, however, A2 was found guilty under Sections 409 and 418 r/w 120 (B) IPC, 477 (A) IPC (42 counts), A3 was found guilty under Sections 409 and 418 r/w 120 (B) IPC and 477 (A) IPC (7 counts) and A4 was also found guilty under Sections 409 and 418 r/w 120 (B) IPC and convicted A2 under Section 409 and sentenced him to undergo 2 years R.I and to pay a fine of Rs.3,000/- with default sentence and under Section 418 r/w 120 (B) IPC, sentenced to undergo one year R.I and to pay a fine of Rs.3,000/- with default sentence and under Section 477 (A) (42 counts), sentenced to undergo one year R.I for each count and to pay a fine of Rs.100/- for each count with default sentence and the above sentence was ordered to run concurrently. A3 was convicted under Section 409 and sentenced to undergo one year R.I and to pay a fine of Rs.1,000/- with default sentence and under Section 418 r/w 120 (B) IPC, sentenced to undergo one year R.I. and to pay a fine of Rs.1,000/- with default sentence and under Section 477 (A) IPC (7 counts), sentenced to undergo one month R.I for each counts and to pay a fine of Rs.500/- for each counts and the above sentence was ordered to run concurrently and A4 was convicted under Section 409 IPC and sentenced to undergo two years R.I and to pay a fine of Rs.3,000/- with default sentence and under Section 418 r/w 120 (B) IPC, sentenced to undergo one year R.I and to pay a fine of Rs.3,000/- with default sentence and the sentence was ordered to run concurrently. The same were confirmed by the appellate court. Aggrieved by which, the aforesaid revisions have been preferred by the accused A2 to A4.
6. Crl.R.C.No.386 of 2005 is filed by A2. Crl.R.C.Nos.385 and 603 of 2005 are respectively preferred by A3 and A4. According to the revision petitioners, A1 was the appraiser of the Co-operative Bank. The appraiser was the person, responsible for assessing the genuineness, weight and value of the jewels and only based on his certificate, the Co-operative Bank sanctioned the loans. Though the appraiser, A1 was acquitted by the Court below, the revision petitioners have been convicted against law, by fixing responsibility on them. It is not in dispute that a total amount of Rs.1,96,132/- was provided by the Co-operative Bank on the imitation gold jewels, pledged with the Bank.
7. Mr.R.Sankarasubbu, learned counsel appearing for A2, revision petitioner in Crl.R.C.No.386 of 2005 submitted that though A2 was the Secretary of the Co-operative Bank during the relevant period, A1 being the authorised appraiser of the bank issued certificate after testing the jewels, that were pledged, based on the certificate of valuation and genuineness issued by the appraiser / A1, loan was sanctioned to the persons. According to him, A2 could not verify the genuineness of the jewels, pledged by various persons, since he was not an expert, however, the court below acquitted A1, but convicted A2 against law, without sufficient evidence, merely because he was the Secretary of the Bank.
8. Mr.N.Baskaran, learned counsel appearing for A3, revision petitioner in Crl.R.C.No.385 of 2005 submitted that the revision petitioner / A3 was only the Assistant Secretary of the Co-operative Bank and as such, he did not know anything about the genuineness of the fake jewels, certified as genuine by the appraiser / A1. Being the Assistant Secretary of the society, his duty was only to assist the Secretary and that there could be no criminal conspiracy against the revision petitioner / A3 as held by the court below to convict him under Sections 409, 418 r/w 120 (B) and 477 (A) IPC.
9. Mr.A.Thiagarajan, learned Senior Counsel appearing for the revision petitioner / A4 in Crl.R.C.No.603 of 2005 submitted that A4 was only an elected president of the Co-operative Bank and as such, he had no direct knowledge about the imitation / fake jewels being produced for the sanction of the loans. The learned Senior Counsel further contended that after the jewels were weighed and certified as genuine by the appraiser / A1, the same were put in separate small cloth bags and tied after affixing the seal. There is no possibility for the President thereafter to verify the genuineness or the weight of the jewels. According to him, there is no evidence that there was criminal conspiracy between the revision petitioner herein / A4 and the appraiser / A1, so as to attract Section 120 (B) IPC and further, under the criminal jurisprudence, there can be no vicarious criminal liability. Though the appraiser / A1 was acquitted by the court below, after he repaid the amount, so as to compensate the loss incurred by the bank, the revision petitioner / A4 and others were convicted. He further submitted that the repayment of the amount by the son and other relations of A1 shows that the offence was committed only by A1, the appraiser, but he was acquitted, however, A2 to A4 were convicted by the courts below. According to him, there is no evidence against the revision petitioner / A4 for convicting him under Sections 409, 418 r/w 120 (B) IPC.
10. The point for determination in all the Criminal Revisions are as follows:
1. Whether the conviction of the A2, petitioner in Crl.R.C.No.386 of 2005 under Sections 409 and 418 r/w 120 (B) IPC, 477 (A) IPC (42 counts) by the court below is legally sustainable ?
2. Whether the conviction of the A3, petitioner in Crl.R.C.No.385 of 2005 under Sections 409 and 418 r/w 120 (B) IPC and 477 (A) IPC (7 counts) by the court below is legally sustainable ?
3. Whether the conviction of the A4, petitioner in Crl.R.C.No.603 of 2005 under Sections 409 and 418 r/w 120 (B) IPC by the court below is legally sustainable ?
11. It is a settled proposition of law that in a criminal revision, when there is a concurrent finding by the courts below, this Court normally cannot interfere with the same. Only if there is perverse finding, leading to miscarriage of justice, it is the duty of this Court to interfere with the concurrent findings of the courts below. If the finding is against the available evidence on record or without evidence, this Court can hold the same as perverse finding, leading to miscarriage of justice.
12. In the instant case, on the side of the prosecution, 13 witnesses were examined, apart from marking 101 documents. On the side of the defence, one Jeevarathinam, former Director of the Primary Agricultural Co-operative Bank, Virinjipuram has been examined. The Deputy Registrar of the Co-operative Societies, Vellore, who has been examined as P.W.1 has deposed that on receipt of complaints, he ordered for an enquiry under Section 81 of the Co-operative Societies Act and sent the complaint to the Superintendent of Police, Vellore District. In his cross-examination, he has stated that the appraiser, who was arrayed as A1 gave a statement before him that after the weighing and valuation of the jewels, the said appraiser had to put the jewels in a sealed cover and handed over the same for keeping it in the safe custody of the Bank. In case of necessity, due to suspicion, the Special Officer or the Bank authority can open the sealed cover, however, the seal was intact, even at the time of placing the jewels in the safety vault.
13. It is not in dispute that only the sealed covers containing the jewels were handed over by the appraiser / A1 for sanctioning of the loans with slip containing the details of the jewels. As per the evidence of P.W.1, he received complaint about the granting of loans by pledging imitation jewels, however, the same was not sent immediately to the Superintendent of Police by him.
14. The Vice-President of the Co-operative Bank, who was examined as P.W.2 has deposed that he had given the complaint, dated 10.09.1999 marked as Ex.P.3 before the Deputy Registrar of Co-operative Societies, Vellore. In his cross-examination, he has stated that the appraiser used to verify the genuineness of the gold jewels and after weighing the same, put them in separate cloth bags, which were tied and sealed and sent by him with slips containing the details about the weight and other details for the sanction of loan by the Bank. While he was cross-examined by the learned counsel for A2 to A4, he replied that he did not know whether the jewel loans were given to fictitious persons or not and he has further stated in his evidence that he did not know personally about the weighing of the jewel by the appraiser / A1. He has admitted that he had given a petition to pass no confidence motion against A4, the President of the Co-operative Bank.
15. According to P.W.3, Chief Manager of the Bank, on 30.09.1999 and 05.10.1999, there was inspection in the Primary Agricultural Co-operative Bank, Virinjipuram and all the jewels were verified with reference to the entries of the records. According to him, as per the report, Ex.P.4, except the jewels specified in this case, other items were found correct and the jewels were also found genuine.
16. The subsequent appraiser, who was examined as P.W.4 has deposed that he verified the jewels, as directed by the bank authorities on 23.09.1999 and found only seven items were not gold jewels, but only imitation gold. His statement was also marked as Ex.P.5.
17. P.Ws.5,9 and 10 were the Village Administrative Officers of Alamelumangapuram, Poigai and North Virinjipuram. According to P.W.5, his junior paternal uncle is Ramamoorthy / A1. He has admitted his signature available in the receipt showed before him. According to him, he was compelled to sign when the receipts were in bank. The aforesaid evidence cannot be accepted, since he has not lodged any complaint before the authorities that his signatures were obtained under threat or coercion.
18. In this revisions, the learned Government Advocate (Crl side) appearing for the respondent has not denied that the appraiser / A1 subsequently paid the entire amount payable towards the jewel loans obtained by pledging imitation gold jewels by various persons.
19. According to P.W.8, son of A1, he came to know that there was misappropriation in the Co-operative Bank to the tune of Rs.1,50,000/- and he was compelled to pay Rs.50,000/- towards the same and accordingly, he paid the amount to the Bank. P.W.9 issued the certificate, Ex.A.13 in the name of one Latha w/o. Raman and others that they were not residing in the village. According to him, before issuing the certificate, he verified the voters list relating to 1998, but the same has not been marked as a document. In the cross-examination, he has stated that the competent authority is only the Tahsildar to issue certificate to decide whether a person is residing in the particular area or not.
20. Ex.P.14, Certificate has been issued by Village Administrative Officer, who was examined as P.W.10. P.W.11 is the witness to Ex.P.16, Form-95. In the cross-examination, he has stated that the disputed jewels were verified in the presence of A2 and A3, namely, Secretary and Assistant Secretary of the Co-operative Bank and the seal affixed on the bag was found intact, but before examination of the police, he has stated that the cloth bag could have been opened by using blade at the bottom and stitched later. The said evidence is contradictory to the case of the prosecution.
21. According to P.W.12, when he was working under the Deputy Registrar of Co-operative Societies, he was directed to conduct enquiry on the alleged misappropriation and accordingly, he conducted enquiry.
22. According to D.W.1, a former Director of the Co-operative Bank, A1 was engaged as appraiser in the year 1973 during his tenure. He has further stated that the jewels were under the custody of the President / A4 and the Secretary / A2 and every year, the jewels have to be verified by the Central Co-operative Bank, Vellore and according to him, the jewels were weighed at the shop of A1 and not at the Bank.
23. Mr.A.Thiagarajan, learned Senior Counsel appearing for A4 submitted that only A1 / the appraiser has committed the offence by certifying imitation jewels as genuine gold jewels. Based on the certificate of the authorised appraiser, loan amounts were given to various persons. There is no possibility for A4 or other accused to test the genuineness of the jewel, since they are not experts to verify the genuineness of the alleged gold jewels. Subsequently, the appraiser / A1 repaid the entire dues payable to the bank. Had he been innocent, the appraiser / A1 could not have repaid the dues payable to the Bank, however, the courts below acquitted A1, but convicted A4 and other accused against law, without proper evidence. In support of his contention, the learned Senior Counsel relied on the decision Vishwa Nath vs. State of J & K, reported in AIR 1983 SC 174, wherein the Hon'ble Supreme Court has held that under Section 409, criminal breach of trust by public servant, who misappropriated the Government money entrusted to him for his personal use, the refund of the amount after deduction does not absolve him of the offence and therefore, the appraiser / A1 who refunded the money could have been convicted, instead the others were convicted.
24. Learned Government Advocate submitted that though the amount was repaid by the appraiser / A1, the appraiser cannot be construed as a public servant, since he was not an employee in the Bank and was only a part-time appraiser of the Bank.
25. It is not in dispute that the appraiser / A1 had repaid the amount and the amount was paid by his son and others on behalf of the appraiser / A1. P.W.13, who registered the case in Cr.No.4/02 under Sections 409 and 477 (A) IPC and conducted the enquiry has deposed that he examined the prosecution witnesses. According to him, the enquiry officer admitted the fact that the bank authority informed him that an amount of Rs.1,50,000/- had been repaid by the sons of the appraiser / A1, on the admission made by A1. When he examined P.Ws.7 and 8, they did not say that they had paid the amount and signed in the receipts under any threat or coercion by the accused 2 to 4. According to P.W.13, P.W.7 and P.W.8 did not say that they had signed any blank receipt forms, out of compulsion.
26. Had the amount was paid by the son and other relatives of appraiser / A1 and signed any blank receipts in a compelling circumstances under threat or coercion, at least they could have stated the same before P.W.13 or other investigating officers. As per the evidence available on record, it is clear that they have not even lodged any complaint that due to threat or coercion, they had paid the amount on behalf of A1 to the Agricultural Co-operative Bank towards the loss incurred on account of jewel loans granted on imitation gold jewels.
27. On a perusal of the evidence available on record would show that there is no direct evidence or circumstantial evidence to establish the guilt against the revision petitioners, however, the trial court found A1 not guilty and accordingly acquitted him under Sections 409, and 418 r/w 120 (B) IPC, the same has been confirmed by the appellate court.
28. As per Section 409 IPC for criminal breach of trust, by any public servant or banker, merchant or agent, the person responsible is liable to be punished, as specified under the Section. It is not in dispute that the gist of the offence is dishonest, misappropriation and the burden lies on the prosecution to prove such misappropriation by direct evidence or evidence of circumstances, which lead to reasonable inference of such misappropriation. The mere fact that the accused has failed to explain suspicious entries in the account is not sufficient for the prosecution, on whom the burden rest of proving the criminal misappropriation under this section. Here in the instant case, the prosecution evidence available on record would show that the appraiser / A1, who was engaged by the Bank had fraudulently issued certificates stating imitation jewels as gold jewels, based on the certificate of valuation and genuineness issued by the appraiser, jewel loans were given for seven persons, subsequently, after the same was brought to light, the aforesaid amount was repaid on behalf of the appraiser / A1, which is not in dispute.
29. As per Section 418 IPC, who ever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or legal contract, to protect, shall be punished. In the instant case, as per the evidence of the subsequent appraiser, P.W.4 on 23.09.1999, on the direction of the authorities of the Co-operative Bank, he verified the seven items of imitation gold jewels. There is no evidence on the side of the prosecution to show that genuine gold jewels were taken away by the revision petitioners herein, whether jointly or otherwise and replaced the imitation or fake gold jewels and that is also not the case of the prosecution. Further, as per the evidence of P.W.3, the Assistant Manger of the Co-operative Bank on 30.09.1999 and 05.10.1999 when there was inspection of the jewels, except the jewels relating to this case, other jewels were found genuine and were found as per the entries made in the register.
30. It is not the case of the prosecution that while the verification after receipt of the complaint, the jewels were not found in the sealed covers. It is not in dispute that the jewels were found in sealed covers, further, as contended by the learned counsel appearing for the revision petitioners, in order to establish the offence under Section 120 (B), criminal conspiracy, there is no evidence on the side of the prosecution. The respondent / State has not preferred any appeal against the acquittal recorded against the appraiser / A1 and therefore, I am of the view that the findings of the courts below is without any legal evidence to convict the revision petitioners / A2, A3 and A4. It is strange that the courts below have acquitted the appraiser / A1, though who is said to have admitted the guilt before the enquiry officer and paid the amount. There is no vicarious liability under the criminal law. The courts below having found A1 not guilty cannot hold A2, A3 and A4 guilty of the offence, on the available evidence. I am of the view, to meet the ends of justice, to allow the revision petitions and accordingly, answer the points for determination 1 to 3.
31. In the result, the Criminal Revisions in Crl.R.C.Nos.385, 386 and 603 of 2005 are allowed and the revision petitioner / A2 in Crl.R.C.No.386/05 is not found guilty under Sections 409 and 418 r/w 120 (B) IPC, 477 (A) IPC (42 counts) and accordingly, the conviction and sentence imposed on him is set aside. The revision petitioner / A3 in Crl.R.C.No.385/05 is not found guilty under Sections 409, 418 r/w 120 (B) and 477 (A) IPC (7 counts) and accordingly, the conviction and sentence imposed on him is set aside. The revision petitioner / A4 in Crl.R.C.No.603/05 is not found guilty under Sections 409, 418 r/w 120 (B) and accordingly, the conviction and sentence imposed on him is set aside. Consequently, connected criminal miscellaneous petitions are closed. The fine amount, if any paid by the revision petitioners are ordered to be refunded.
14.07.2008 Index : Yes Internet : Yes tsvn To
1. The Principal District and Sessions Judge Vellore, Vellore District.
2. The Judicial Magistrate No.II Vellore, Vellore District.
3. The Public Prosecutor High Court, Chennai.
S.TAMILVANAN, J tsvn Common Order in Criminal R.C. Nos.385 386 and 603 of 2005 14-07-2008