Bangalore District Court
State By Cbi/Acb vs Shri B.V. Islur on 16 February, 2016
IN THE COURT OF XXI ADDL. CITY CIVIL AND SESSIONS
JUDGE AND PRINCIPAL SPECIAL JUDGE FOR CBI CASES,
BENGALURU (CCH-4).
Spl. C.C. No.150/2005
DATED THIS THE 16th DAY OF FEBRUARY, 2016
PRESENT : Sri. Bheemanagouda K. Naik,
B.Com., LL.B., (Spl.)
XXI Addl. City Civil and Sessions Judge and
Prl. Special Judge for CBI Cases, Bengaluru.
Complainant: State by CBI/ACB, Bengaluru
(By Special Public Prosecutor)
V/s
Accused: 1. Shri B.V. Islur,
S/o. Sri. B.H. Islur,
'Prajwal' No.74, 1st Floor,
III Main Road, AGB IInd Stage,
Mahalaxmipuram,
Bangalore - 86.
2. Shri J.N. Prabhakar,
S/o Late D.J.R. Nagabushana Rao,
No.74, 7th Main,
ITI Layout,
Marappa Garden,
Bangalore-46.
3. Sri. Srinivas Jagirdar, (Dead)
S/o late Shri. Gopal Jagirdar,
Director, M/s. Manx Auto Ltd.,
No.16/A, KKMP Building,
Miller Tank Bund Road,
Vasanth Nagar, Bangalore-52.
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4. Sri. Dhananjaya Chavan (Dead)
S/o. Dr. C. Bhujanga Rao,
Director,
M/s. Manx Auto Ltd.,
No.16/A, KKMP Building,
Miller Tank Bund Road,
Vasanth Nagar, Bangalore-52.
5. Shri. A.D. Kulkarni,
S/o. Late Shri D.V. Kulkarni,
Property Valuer,
No.39 A, 16thD Main,
1st Block, Rajaji Nagar,
Bangalore - 10.
6. Sri. U.L. Somappa
S/o Sri. U.A. Laxmana
Advocate,
No.304, Ground Floor, IIIrd Main,
Byatarayanapura New Extension,
Mysore Road, Bangalore. (Dropped)
7. Shri J.N. Ramesh,
S/o late Dr.J.R. Nagabushana Rao,
Director, M/s. Manx Auto Ltd.,
No. 16/A, KKMP Building,
Miller Tank Bund Road,
Vasanth Nagar, Bangalore - 52.
8. M/s. Manx Auto Ltd.,
No.16/A, KKMP Building,
Miller Tank Bund Road,
Vasanth Nagar, Bangalore-52.
9. Sri. N.L. Jagirdar,
S/o Sri. L.N. Jahagirdar,
No.8-C, 25, 8th Cross, 7th Main,
Srinidhi Layout,
Konankunte, Bangalore-62.
(By Sri. C.G.Sundar, Advocate for A1,
Sri. I.S.Pramod Chandra, Adv. for A2, 8,
Sri. B. Venkata Rao, Advocate for A5,
Sri. Prof.B.Basavaraju, Adv. for A7,
Sri. Keerthi Hegde, Advocate for A9)
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JUDGMENT
The Inspector of Police, CBI/ACB Bengaluru has filed a charge sheet against the accused No.1 to 5, 7 to 9 for the offences punishable under Sec. 120B r/w Sec. 420, 467, 468, 471 of IPC and Sec. 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988.
2. It is the case of the prosecution that: -
(a) Accused No.9 Shri. N.L. Jagirdar, while functioning as public servant in the capacity of Deputy Manager (Credit), Bank of India, Richmond Town Branch, Bangalore, had received the security documents, along with the forged Encumbrance Certificate dated 22.12.2001 from accused No.3 Sri. Srinivas Jagirdar on 28.12.2001, with the knowledge of accused No.1 Sri. B.V. Islur, while accused No.1 was present at the branch, pertaining to the properties offered as collateral security by accused No.8 M/s. Manx Auto Ltd., for availing credit facilities from Bank of India, Richmond Town, Bangalore. Accused No.1 had failed to verify the said forged Encumbrance Certificate, and had failed to inspect the site at No.60, Industrial Suburb, Rajahji Nagar, II Stage, Bangalore, purportedly belonging to accused No.3, prior to the disbursal of the Cash Credit limits, Working 4 Spl.C.C.150/05 J Capital Term Loan limits, and the issue of Bank Guarantee, to accused No.8 M/s. Manx Auto Ltd. Whereas, the said property at No.60, Industrial Suburb, Rajaji Nagar, II Stage, Bangalore, was originally allotted by CITB, Bangalore, to Smt. Shamala Jagirdar, and the major portion of this property of 132 feet x 250 feet had already been sold by the Karnataka State Financial Corporation (KSFC) to M/s Gokuldas Exports Pvt. Ltd., as early as on 12/07/1988, due to the default in the repayment of a loan availed by Shri Kishan Jagirdar and Smt. Shamala Jagirdar, brother and sister of accused No.3. Moreover, accused No.3 and his wife, Smt. Kousalya Srinivas had again mortgaged the same property for Rs.50 lakhs with the Grain Merchants Co-operative Bank, Ltd., Chamrajpet Branch, Bangalore. They had thereafter created the forged documents of the same property, and had furnished them to Bank of India, Richmond Town Branch, Bangalore, facilitating accused No.8 to avail huge loans on the strength of the fake documents.
(b) Accused No.1 not only failed to verify the said forged Encumbrance Certificate dated 22-12-2001, and visit the said property, but had also failed to obtain additional collateral security of the vacant sites, belonging to accused No.2 Shri J.N. Prabhakar and accused No.4 Shri Dhananjaya Chavan, and the 5 Spl.C.C.150/05 J Tax Paid Receipts for the period from 01/04/2000 to 31/03/2002, and the Khata Certificate of the property at No.60, Industrial Suburb, Rajaji Nagar, II Stage, Bangalore purportedly belonging to accused No.3, even though these observations were made by accused No.9 in the Credit Process Audit (CPA-I) dated 27/12/2001 conducted by himself and in the credit process audit (CPA-II) dated 27/12/2001 conducted by Shri K.S. Sridharan, the then Dy. Chief Manager (Credit), Bank of India, Cantonment Branch, Bangalore and by the Zonal Office. The accused No.1 had blindly extended credit facilities/TOL to accused No.8 without complying with the observations.
(c) Accused No.1 by violating the instructions of the Zonal Office, in this regard, had allowed Temporary Over-limits (TOL) in the Cash Credit Account No. 40080 of accused No.8 w.e.f. 04.02.2002, and had permitted excess drawings on 27 occasions, of more than Rs.50 lakhs, in this account, without financial powers, even when the Cash Credit limits of Rs.100 lakhs, which were sanctioned by the Zonal Office to accused No.8, had been exhausted and had failed to intimate the Zonal Office about the exceeding, until 28/06/2002, whereby he had kept the Zonal Office in the dark, for almost five months.
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(d) Accused No.1 failed to supervise and have control over accused No.9, Deputy Manager, (Credit), Bank of India, Richmond Town Branch, Bangalore, who by violating the instructions of the Zonal Office, in this regard, had allowed Temporary Over-limits (TOL) in the Cash Credit Account No. 40080 of accused No.8, w.e.f. 05.02.2002, and had permitted excess drawings, on 36 occasions, of more than Rs.50 lakhs in this account, even when the Cash Credit limits, which were sanctioned by the Zonal Office to accused No.8, had been exhausted and had failed to intimate to the Zonal Office of the exceedings, until 28/06/2002, whereby he had kept the Zonal Office in the dark for almost five months.
(e) Accused No.1 failed to supervise and have control over accused No.9, Deputy Manager, (Credit), Bank of India, Richmond Town Branch, Bangalore, who, by violating the instructions of the Zonal Office passed 20 cheques out of 36 cheques, on occasions when the Branch Manager, accused No.1 was present in the branch, even though he did not have any financial powers to permit such over-drawls, in excess of the sanctioned limits in the CC Account of accused No.8.
(f) Accused No.1 failed to supervise and have control over accused No.9, Deputy Manager, (Credit), Bank of Baroda, 7 Spl.C.C.150/05 J Richmond Town Branch, Bangalore, who, had passed 13 cheques out of 36 cheques, without the Branch Manager's signatures on the instruments, without any delegated authority and had signed and passed 18 cheques, without any delegated authority.
(g) Accused No.1 failed to supervise and have control over accused No.9, Deputy Manager, (Credit), Bank of India, Richmond Town Branch, Bangalore, who passed three cheques without obtaining the second Officers passing signatures, by violating the Circulars No.90/9 dated 17.04.1998 and No.94/113 dated 13.09.2000, issued by Head Office of Bank of India.
(h) Accused No.1 failed to supervise and have control over accused No.9, Deputy Manager, (Credit), Bank of India, Richmond Town Branch, Bangalore, who by violating the Zonal Office instructions, allowed over-drawings in the Cash Credit Account of accused No.8 on three instances, even after the Zonal Office vide it's letter No. RICH:ADV:Memo:2002-03/03/2 dated 28.06.2002, had refused to accord approval to the proposal dated 28.06.2002 submitted by accused No.1, for the sanction of Adhoc Cash Credit limits of Rs.50 lakhs, to accused No.8.
(i) Accused No.1 had not only failed to comply with the terms and conditions of the sanction, accorded by Zonal office vide its Letter Ref. No. NO:C&IC:2001-02:803 dated 8 Spl.C.C.150/05 J 26.11.2001, of extending credit facilities to accused No.8, but had also kept his Controllers in dark, about the facilities extended to accused No.8. The Zonal Office was informed for the first time, only on 28.06.2002, after a lapse of almost five months, even though TOL was allowed to accused No.8, w.e.f. 04.02.2002, in excess of the sanctioned limits.
(j) Accused No.1, had failed to maintain the TOL Register at the Richmond Town Branch of the bank.
(k) Accused No.1, being the Manager of Bank of India, Richmond Town Branch, Bangalore, had failed control his subordinates from allowing TOL to accused No.8, without delegated authority, and by violating the norms and the audit observations.
(l) Accused No.2, accused No.4, accused No.7 Shri J.N. Ramesh, Directors of accused No.8 company, did not visit and verify the property No.60, Industrial Suburb, Rajaji Nagar, II Stage, Bangalore, purportedly belonging to accused No.3, and had failed to verify the Encumbrance on the said property, offered as collateral security by them, for the credit facilities sought from Bank of India, Richmond Town Branch, Bangalore, in the name of accused No.8. Instead, accused No.4 and accused No.5 Shri. A.D. Kulkarni, without the presence of any officials of 9 Spl.C.C.150/05 J Bank of India, Richmond Town Branch, Bangalore, on the advice of accused No.3, inspected a different property at site No.66 at Ganapathy Compound, Industrial Suburb, Yeshwanthpur, Bangalore, and submitted a wrong valuation report of a different property, to the Bank. Though accused No.5 was empowered to value property valuing up-to Rs.15 lakhs, he had valued a wrong property and had furnished a valuation report stating the value of property as Rs.5.22 crores. Even though accused No.3, was aware that he was not the owner of the said property at No.60, Industrial Suburb, Rajaji Nagar, II Stage, Bangalore, and that it was already sold by KSFC to M/s. Gokuldas Exports Ltd., and that the said property was already mortgaged by him and his wife to The Grain Merchants Co-operative Bank Ltd., Chamrajpet, Bangalore, he had created fake documents pertaining to this property, such as Original Sale Deed dated 31.08.1998, Possession Certificate dated 25.10.1975, Encumbrance Certificate dated 22.12.2001, etc., forging the signatures of the officials of the BDA and Revenue Department. These fake documents were submitted to Bank of India, Richmond Town Branch, Bangalore. Accused No.4 had also applied for the Encumbrance Certificate, and had collected the Encumbrance Certificate dated 22.12.2001 from the office of the 10 Spl.C.C.150/05 J Sub Registrar, Rajaji Nagar, Bangalore, and had along with accused No.3 furnished the same to Bank of India, Richmond Town Branch, Bangalore, after forging its contents. In return for providing his property as collateral for the credit facilities sought by accused No.8, from Bank of India, Richmond Town Branch, Bangalore, accused No.2 and his younger brother, accused No.7 Shri. J.N. Ramesh, Managing Director and Director, respectively, of accused No.8 company, dealers of Palio Cars of M/s. FIAT India Ltd., in Bangalore, had paid commission of Rs.25 lakhs to accused No.3 vide Cheque No. 490301 dated 09.01.2002, and vide Cheque No.35416 dated 10.01.2002. The proceeds of these cheques were credited into the account of M/s. Infrasoft Consultants India Pvt. Ltd., Bangalore with HDFC Bank, MG Road, Bangalore of which accused No.3 was the Proprietor.
(m) Accused No. 1 while functioning as public servant in the capacity of Branch Manager at Bank of India, Richmond Town Branch, Bangalore, during the period from June 1998 to December 2002, by abusing his official positions, during 2002, had failed to verify the security documents, had failed to visit the property offered as collateral security, by accused No.8 company, at No.60, Industrial Suburb, Rajaji Nagar, II Stage, Bangalore, the fake and forged documents of which were 11 Spl.C.C.150/05 J submitted by accused No.3, towards the sanction and disbursement of Rs.100 lakhs as Cash Credit limits in Account No. 40080, Rs.50 lakhs as Working Capital Term Loan limits in Account No.80270 and Rs.300 lakhs as Bank Guarantee limits to accused No.8 company, during 2002, without paying heed to the observations of two Audits, and in violation of the instructions of the Zonal Office of the bank, and had allowed TOL to accused No.8 company, without financial powers. Accused No.5 on the advice of accused No.4 and accused No.3, had valued a different property and had furnished a wrong valuation report to the bank, inflating the value of the different property.
(n) Accused No.9 while functioning as public servant in the capacity of Deputy Manager (Credit), Bank of India, Richmond Town Branch, Bangalore, during the period from August 2001 to January 2003 by abusing his official position, had failed to verify the security documents and had failed to visit the property at No.60, Industrial Suburb, Rajajinagar, 2nd Stage, Bangalore, the fake and forged documents of which were taken by the Bank of India, Richmond Town Branch, Bangalore, as collateral security from accused No.3 towards the sanction and disbursement of Rs.100 Lakhs as cash credit limits, Rs.50 Lakhs as Working Capital Term Loan Limits and Rs.300 Lakhs as Bank Guarantee 12 Spl.C.C.150/05 J Limits to accused No.8, during 2002, and without paying heed to the audit observations and the Zonal Office instructions contained with the circulars, had allowed TOL without financial powers.
(o) Accused No.9 being a public servant had failed to obtain additional collateral security as per the post sanctioned disbursement condition imposed in the sanctioned order. Further failed to obtain the tax paid receipts, katha certificates and had joined hands with accused No.1 and extended credit facilities to accused No.8 company without complying the observations.
(p) Accused No.9 had allowed excess drawings on 18 occasions in favour of accused No.8 beyond the sanctioned limit of TOL and had failed to intimate the same to the Zonal Office until 28.06.2002 though the Zonal Office refused to accord permission to the proposal dated:28.06.2002 submitted by accused No.1 for sanction of Adhoc CC limits of Rs.50 Lakhs to the accused No.8. Further accused No.9 had passed 13 cheques without signatures of accused No.1 on the instruments and without having delegated authority to him. Further accused No.9 had passed 20 cheques though accused No.1 was present in the branch and without any financial powers to sanction such over drawls in excess of the sanctioned limits in the CC account.
13 Spl.C.C.150/05 J Further accused No.9 had passed two cheques without obtaining the signatures of second officer for passing of those cheques for payment. Further he had failed to maintain TOL register at the Branch.
(q) The accused No.1 to 9 conspired together to cheat the Bank of India, Richmond Town Branch, Bangalore, for which they have forged the documents, used the forged documents as a genuine documents and caused wrongful loss of Rs.4,22,87,059.69 to the Bank of India as on 31.03.2004 and wrongful gain to accused No.8 company to misappropriate the disbursed funds.
3. After filing the charge sheet, looking to the material forthcoming against the accused No.1 to 5, 7 to 9, cognizance has been taken against them. Then in response to the service of summons, the accused No.1 to 5, 7 to 9 appeared before the court and they were enlarged on bail and necessary police papers have been furnished to them.
4. Thereafter, after hearing the arguments before charge, charge has been framed against accused No.1 to 5, 7 to
9. Thereafter accused No.3 and 4 are expired and case against them came to be abated. Then the trial was continued against accused No.1,2, 5, 7 to 9.
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5. The prosecution examined in all 37 witnesses as PWs.1 to 37, got exhibited 251 documents as Ex.P.1 to Ex.P.251 and closed its side. Then the statements of accused No.1, 2,5, 7 to 9 have been recorded U/s 313 Cr.P.C. after explaining the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. The accused No.2 and 5 submitted their written statement and accused No.5 produced the documents. All accused have not entered any defence evidence on their behalf. During the evidence of prosecution witnesses they have exhibited Ex.D.1 in support of their defence.
6. Then I have heard the detailed arguments advanced by learned Special PP and learned counsel for the accused No.1,2,5,7 to 9 and both sides submitted their notes of arguments and memo with citations.
7. The points that would arise for my consideration are;
I) Whether the prosecution proves beyond all reasonable doubt that accused No.1,2,5,7 to 9, along with deceased accused No.3 and 4, during the period between June 1998 and December 2002 entered into criminal conspiracy to defraud Bank of India, Richmond Town Branch, Bangalore, by committing various over-acts, by failing to submit and scrutiny of documents, submitting forged documents for the purpose of sanction and disbursement of Cash Credit, working capital and bank guarantee in all Rs.450 Lakhs to accused No.8 and thereby 15 Spl.C.C.150/05 J committed an offence punishable U/sec.
120(B) of IPC?
II) Whether the prosecution further proves beyond all reasonable doubt that in pursuance of criminal conspiracy the accused No.1,2,5,7 to 9, along with deceased accused No.3 and 4, on the basis of forged and fabricated documents induced the Bank of India, Richmond Town Branch, Bangalore, for delivery of Rs.4,22,87,059.69 as on 31/03/2004 and thereby cheated the said bank and committed an offence punishable U/Sec.
420 of IPC?
III) Whether the prosecution further proves beyond all reasonable doubt that in pursuance of criminal conspiracy the accused No.5, created false valuation report in respect of different property instead of the property No.60 offered for security by the deceased accused No.3 and thereby committed an offence of forgery punishable U/Sec. 467 of IPC?
IV) Whether the prosecution further proves beyond all reasonable doubt that in pursuance of criminal conspiracy the accused No.5, created false valuation report in respect of different property instead of the property No.60 offered for security by the deceased accused No.3 to cheat the Bank of India, Richmond Town Branch, Bangalore, and thereby committed an offence of forgery for the purpose of cheating punishable U/Sec.
468 of IPC?
V) Whether the prosecution further proves beyond all reasonable doubt that in pursuance of criminal conspiracy the accused No.1 and 9 while functioning as public servants in the capacity of Branch Manager and Deputy Manager (Credit) 16 Spl.C.C.150/05 J Bank of India, Richmond Town Branch, Bangalore, respectively by abusing their position as a public servants, obtained for themselves or for any other person any valuable thing or pecuniary advantage and thereby committed an offences criminal misconduct punishable U/Sec.
13(2) r/w 13(1)(d) of Prevention of Corruption Act 1988?
VI) What Order?
8. My findings on the above points are as follows:
POINT No.1: In the Negative.
POINT No.2: In the Negative.
POINT No.3: In the Negative.
POINT No.4: In the Negative.
POINT No.5: In the Negative.
POINT No.6: As per final order, for the following REASONS
9. POINT No.1 to 6: - All these points have been taken up together for consideration and discussion to avoid the repetition of facts and evidence.
10. Before going to consider the allegations of the prosecution against accused No.1,2,5,7 to 9 it is proper to consider the admitted facts. It is an admitted fact that accused No.1 was serving as Branch Manager at Bank of India, Richmond Town Branch, Bangalore, and a public servant during 17 Spl.C.C.150/05 J the period from June 1998 to December 2002. It is further admitted that accused No.9 was serving as Deputy Manager (Credit) at Bank of India, Richmond Town Branch, Bangalore, and a public servant during the period from August 2001 to January 2003. It is further admitted that accused No.8 is a private limited company of which accused No.2 is the Managing Director, accused No.4 was a Director and accused No.7 is a Director. It is further admitted that accused No.3 a private person mortgaged the property No.60, Industrial suburb, Rajajinagar, 2nd Stage, Bangalore, who later-on inducted as additional Director of accused No.8's company for a limited period. It is further admitted that accused No.8 was doing business in FIAT cars as a dealers of Fiat car company. It is further admitted that accused No.5 is approved valuer of property appointed on the panel of Bank of India from 1998, who valued the property in dispute and submitted his report to the Bank of India in respect of the property mortgaged by deceased accused No.3.
11. It is admitted that accused No.8 Company was having its account in Bank of Baroda, Cantonment Branch and borrowed funds from the said bank for its business. It is further admitted that accused No.8 Company opened its current 18 Spl.C.C.150/05 J account with Bank of India, Richmond Town Branch, Bangalore, during 2001. It is further admitted that accused No.8 Company applied for sanction of credit facility to Bank of India, Richmond Town Branch, Bangalore, and to take over its liability from Bank of Baroda. It is further admitted that the proposal submitted by accused No.8 along with the documents, legal opinion and valuation report were forwarded to the Zonal Office of Bank of India and the credit facility Rs.100-Lakhs as a Cash Credit, Rs.50-Lakhs as Working Capital in the form of Term Loan and Rs.300-Lakhs as Bank Guarantee subject to fulfillment of post sanction conditions. It is further admitted that the credit facility sanctioned to accused No.8 have been disbursed from time to time and over drawing was allowed in respect of Cash Credit account on some occasions.
12. It is specifically alleged by the prosecution that the accused criminal conspired, cheated Bank of India, Richmond Town Branch, Bangalore, committed forgery and used the forged documents for cheating. Further, it is alleged that accused No.1 and 9 being public servants abused their official position and caused wrongful loss of Rs.4,22,87,059.69 as on 31/03/2004 to Bank of India, Richmond Town Branch, Bangalore, and corresponding gain to accused No.8 company.
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13. Now, I will consider the oral evidence of the prosecution witnesses relied upon by it. In this regard firstly, the prosecution has adduced and relied upon the evidence of PW.1-S. Shekhar, who was Manager, Bank of India, Richmond Town Branch, Bangalore, during the period from 2004 to 2008. He has deposed that as per the instructions of CBI and as per the instructions of the Chief Manager, he has produced the documents Ex.P.1 to 171 before Investigating Officer, and Ex.P.172 and Ex.P.173 have been produced from their Bank. In his cross examination he has admitted that he was not working in Richmond Town Branch from 24/10/2001 to 21/05/2004. Further he has admitted that he has no personal knowledge about the transaction between the Zonal Office and Branch Office. Further, he has admitted that in this case the loan was sanctioned from the Zonal Office.
14. Secondly, the prosecution has adduced and relied upon the evidence of PW.2-Jithendra Singh, who was Deputy Secretary in BDA, Bangalore from 1997 to 2000. He has deposed that during 2005 CBI Officer shown some documents to him and after verifying the documents he gave his statement. He has further deposed that the original sale deed dated:31/08/1998 Ex.P.174 has been executed by him as 20 Spl.C.C.150/05 J Deputy Secretary of BDA, in favour of Shyam Industrial Complex, represented by its Proprietor accused No.3 and the signatures on the said document are signed by him. Further he has deposed that Ex.P.17 sale deed dated: 31/08/1998 was not executed by him and the signatures on the said document are not his signatures.
15. Thirdly, the prosecution has adduced and relied upon the evidence of PW.3-G.V.Chandrashekaraiah, who is a employee of BDA, Bangalore. He has deposed that during 2005 CBI Officer enquired him, shown the documents and recorded his statement. Further, he has deposed that Ex.P.17 is not the document executed from BDA, initials Ex.P.17(h) to (n) and signature Ex.P.19(a) are not his initials and signatures. Then he has deposed that Ex.P.174 has been executed from their office and bear his initials as per Ex.P.174(h) to 174(n) and his signature at Ex.P.174(o) and the said document is a genuine document and Ex.P.17 is a fake document. Further he has deposed that Ex.P.175 was not issued by the BDA and BDA also not issued possession certificate in favour of accused No.3 as per Ex.P.18 and possession certificate was already granted to Shri. Kishan Jagirdar.
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16. Fourthly, the prosecution has adduced and relied upon the evidence of PW.4-Sri. D. Narasimha Murthy, who was FDA in SRO, Rajajinagar. He has deposed that during 2005 CBI officer enquired him, shown the documents and recorded his statement. Further he has deposed that Ex.P.174 has been registered in their office and he has put his signatures as per Ex.P.174 (p) to Ex.P.174(s). Further he had deposed that Ex.P.17 does not bear his signature for registration.
17. Fifthly, the prosecution has adduced and relied upon the evidence of PW.5-Sri. H. Gujjarappa, who was Senior Sub- Registrar, at Rajajingar, SRO, from July 1998 to July 2000. He has deposed that during 2005 CBI officer enquired him, shown the documents and recorded his statement. He has deposed that Ex.P.17 does not bear his signature as per Ex.P.17(t). Further he has deposed that Ex.P.174 contains his signature as Ex.P.174(t). Then he has deposed that Ex.P.176 Encumbrance certificate was issued from their office which bears his signature.
18. Sixthly, the prosecution has adduced and relied upon the evidence of PW.6-Sri. Huchaiah, who worked as SDA, in SRO Office Rajajinagar, from 2003 to 2005. He has deposed that during his tenure in SRO office, Rajajinagar, he was 22 Spl.C.C.150/05 J entrusted with duty of issuing encumbrance of properties and copies of the documents. Further, he has deposed that Ex.P.20(a) encumbrance certificate and Ex.P.20(b) another encumbrance certificate which bear his signatures and after issuing copies the date pertaining to 01/04/2000 to 20/12/2000 has been altered as 01/04/1999 and in the bottom the date was mentioned as 20/12/2001 but the date has been altered as No.22.
19. Seventhly, the prosecution has adduced and relied upon the evidence of PW.7-Sri. H. Devaraj, FDA in SRO office, Rajajinagar, Bangalore. He has deposed that Ex.P.20(a) has been verified by him in the concerned register and during the investigation he noticed alteration of date in the said document.
20. Eighthly, the prosecution has adduced and relied upon the evidence of PW.8-Sri. G.S. Nagaraj, who was Manager, Grain Merchant Co-operative Bank Ltd., Chamarajpet, Bangalore, from 1993 to 2011 and earlier as a clerk and cashier in the said Bank from 1997. He has deposed that accused No.3 and his wife had an account in their bank for their business purpose and accused No.3 applied for loan as per Ex.P.177 and submitted property documents as per Ex.P.174, 175, 176, 178, 179 and Ex.P.180 along with the application. Further he has 23 Spl.C.C.150/05 J deposed that Smt. Kousalya, wife of accused No.3 submitted loan application as per Ex.P.181, along with original registered gift deed Ex.P.182 and encumbrance certificate Ex.P.184. Further, they jointly executed registered deed of collateral security as per Ex.P.183.
21. Ninthly, the prosecution has adduced and relied upon the evidence of PW.9-Sri. M. Satishchandra, who was SDA in SRO office, Rajajinagar, Bangalore, from 2002 to 2005. He has deposed that he verified the encumbrance certificate Ex.P.20(c) and put his signature.
22. Tenthly, the prosecution has adduced and relied upon the evidence of PW.10-Sri. Kishan Jagirdar, who is a brother of accused No.3. He has deposed that M/s. Sham Industrial Complex, is a registered partnership firm and himself and his eldest sister Smt. Shamala Jagirdar, are the partners of the said firm and the firm was established in the year 1974 and till today in existence. There is a property to their firm bearing No.60, Industrial Suburb, 2nd stage, Rajajinagar, Bangalore, which has been allotted by CITB, Bangalore, in the year 1975. They borrowed loan from KSFC on the security of the above said property and his sister executed power of attorney in favour of his late brother accused No.3 on 17/07/1976 and the same is 24 Spl.C.C.150/05 J Ex.P.185 and subsequently the power of attorney was cancelled by issuing notice in the paper as per Ex.P.186. Due to non- payment of loan amount to KSFC 3/4th of the above numbered property was auctioned in public auction and he submitted letter to BDA for bifurcation of their property for payment of tax and they have retained 1/4th of the above property which is still in existence. Ex.P.21 is the lease cum sale agreement pertaining to their firm, Ex.P.18 is the possession certificate does not pertain to their firm and Ex.P.23, Ex.P.24 and Ex.P.28 are not concerning to him and do not bear his signatures.
23. Eleventh, the prosecution has adduced and relied upon the evidence of PW.11-Smt. Shamala Jagirdar, who is the sister of accused No.3 and PW.10. She has deposed that herself and PW.10 are the partners in M/s. Sham Industrial Complex, a partnership firm. She had executed power of attorney Ex.P.185 in favour of accused No.3 and then cancelled the same by issuing public notice in Deccan Herald newspaper as per Ex.P.186. Further, she has deposed that Ex.P.17 sale deed, Ex.P.18 possession certificate, Ex.P.24 resolution of partnership deed and Ex.P.28 letter are not pertaining to their firm and not written by her.
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24. Twelfth, the prosecution has adduced and relied upon the evidence of PW.12-Sri.K.S.Sridharan, who was Deputy Chief Manager, incharge of Credit Department from 2001 to 2003 in bank of India, Cantonment Branch, Bangalore. He has deposed that on 27/12/2001 their Zonal office instructed him to conduct the Credit Process Audit (CPA) of M/s. Manx Auto Limited, at Richmond Town branch, Banglaore, and accordingly he went to the said branch and conducted CPA-II as per Ex.P.62 and accused No.9 had prepared CPA-I who was incharge of Credit Section.
25. Thirteenth, the prosecution has adduced and relied upon the evidence of PW.13-Mrs.Barbara Chavan, who is the wife of accused No.3. She has deposed that her husband had taken to Bank of India, Richmond Town Branch, Bangalore, and asked her to put her signature on the documents and accordingly she has put her signature on the documents and she does not know the nature of the documents signed by her. Her husband was a chartered accountant by profession and one of the Directors of accused No.8 Company. Ex.P.40 and 41 bear her signatures and Ex.P.46 and 47 are signed by her husband. Ex.P.51, 53, 57 are also bear the signatures of her late husband.
26 Spl.C.C.150/05 J
26. Fourteenth, the prosecution has adduced and relied upon the evidence of PW.14-Sri.G.Sridhar who was the Senior Manager in Bank of India, Richmond Town Branch, Bangalore, from Sept. 2002 to August 2004. He has deposed that he knows accused No.1 and 9, acquainted with her hand writing and signatures as they have worked with him in the above said branch. Before his assuming charge in Richmond Town Branch, Cash Credit limit of Rs.1Crore, Working Capital Term Loan of Rs.50 lakhs and Bank Guarantee of Rs.3Crores was given to accused No.8 from Richmond Town Branch. When he assumed charge in the said branch he noticed that the accounts pertaining to accused No.8 in respect of Cash Credit Facility was over drawn. Their Zonal Office instructed and directed him to get the over drawn amount of accused No.8 recovered and to set right the other irregularities mentioned in the Audit Report and he followed the accused No.8 and obtained E.C. from the concerned Sub-Registrar, about the mortgaged properties. After obtaining Ex.P.20(c) he came to know that there is E.C. pertaining to Grain Merchant Co-operative Bank, Chamarajpet, which was not shown and Ex.P.21 was deposited with their bank at the time of availing the facility. On verifying Ex.P.21 he suspected about the genuineness of the said document and then 27 Spl.C.C.150/05 J himself and his penal advocate went to Grain Merchant Co- operative Bank, and approached the Manager, enquired about their lending and documents deposited by the borrower and Manager of that Bank did not co-operate with them and not shown any documents. Then he wrote a request letter to BDA along with copy of Ex.P.17 to know whether the same has been executed by them and whether the document is genuine document and BDA replied to their Bank stating that Ex.P.17 is not executed by them and it is not a genuine document and the letter of BDA is at Ex.P.30. Their Zonal Office directed him to obtain the legal opinion about the documents deposited with them for mortgage and he referred the matter to Sri. H.R.Katti Advocate who was their panel advocate of their bank and sought his detailed legal opinion as per Ex.P.187 and their panel advocate also opinioned that the documents are not genuine. Then he has deposed about Ex.P.160, Ex.P.161, Ex.P.9, Ex.P.157, Ex.P.158, Ex.P.70, Ex.P.159, Ex.P.2 and Ex.P.164. Further he has deposed about Ex.P.69, Ex.P.8, Ex.P.60, Ex.P.31, Ex.P.79, Ex.P.80 to Ex.P.153, Ex.P.159, Ex.P.129, Ex.P.131, Ex.P.132, Ex.P.133 and Ex.P.137 to Ex.P.140. Further he deposed that the request made by the accused No.1 for ratification of over drawing has been turned down by the Zonal 28 Spl.C.C.150/05 J office as per Ex.P.69. In his cross-examination he has admitted that he has no personal knowledge about the correspondence between Zonal Office and Branch Office, but by verifying the records he has gathered information. Further he has admitted that on the recommendation of Sri. V. Mani, Chief Manager, the Zonal office has sanctioned the loan.
27. Fifteenth, the prosecution has adduced and relied upon the evidence of PW.15 Sri. Shivaramaiah, who was Senior Sub-Registrar, SRO, Rajajinagar, Bangalore. He has deposed that he has issued encumbrance certificate Ex.P.20(c), Ex.P.188 is the Index Register extract and there is entry regarding sale of site No.60, by BDA to M/s Sham Industrial Complex as per Ex.P.188(a) and there is a entry with regard to gift by Srinivas Jagirdar in favour of Kaushalya Srinivas as per Ex.P.188(b) and there is another entry with regard to creation of mortgage by Srinivas Jagirdar in favour of the Grain Merchants Co-operative Society as per Ex.P.188(c).
28. Sixteenth, the prosecution has adduced and relied upon the evidence of PW.16-Sri. N. G. Sheshagiri Rao approved valuer for Bank of India, Bangalore. He has deposed that the Manager of Bank of India, Richmond Town Branch, Bangalore, Sri. Sridhar informed him to value the property for the purpose 29 Spl.C.C.150/05 J of taking action under SURFAESI Act for sale of mortgaged property. Accordingly, he visited the said property and on verifying the property the same was not matching as per documents given and he insisted for approved layout and bank obtained the approved layout from the BDA and gave the same to him. Then he and the Regional Manager Mr. Nair and other Officers and owner of the property together went to that actual property and their owner of the property informed them not to enter the property stating that there is a tenant by name Mr. Gokul Das and if they enter the property he will create problem. Then as per the direction of the Regional Manager he valued the property from external examination and gave his report as per Ex.P.79 and taken six photographs at the time of inspection as per Ex.P.166. Then the CBI Officer called him to his office and took him to the property which he has valued and they together entered the property and drawn a mahazar as per Ex.P.168 and the contents are true and correct and bears his signature.
29. Seventeenth, the prosecution has adduced and relied upon the evidence of PW.17-Sri. K. Krishna Mallya, who was Chief Officer, Zonal Office, Bank of India, K.G.Road, Bangalore, during 2000-2001. He has deposed that he came to know accused No.8 through Mr. Durg, Retired Bank Officer of Bank of 30 Spl.C.C.150/05 J Baroda and he introduced accused No.8 on the request of Deputy Manager, (Admin) for opening account with Bank of India, Richmond Town Branch, Bangalore, and Ex.P.1 is the account opening form and his signature is Ex.P.1(a).
30. Eighteenth, the prosecution has adduced and relied upon the evidence of PW.18-Sri. E.P. Paul, who was Assistant Manager, (Admin), in Bank of India, Richmond Town Branch, Banglaore, during 2000-2004. He has deposed that he knows accused No.1 and 9 who were working with him in the said branch and he is acquainted with their hand-writings and signatures. Ex.P.92 to Ex.P.94, Ex.P.96, Ex.P.112, Ex.P.115 to Ex.P.117 and Ex.P.127 bear his signatures as a second officer.
31. Nineteenth, the prosecution has adduced and relied upon the evidence of PW.19-Mrs.Agnes L. Joseph, who was Officer in Bank of Indian, Richmond Town Branch, Bangalore, from October 2000 to Sept. 2004. She has deposed that her duty as an officer in that branch was to cancel the cheques, when the cheques were presented for collection and she verified the signature of drawer as per the authorization of their Branch Manager for payment. She knows Smt. Gayathri Sadu, Mrs. Banu, Sri. Chaithanya and Sri. N. Ravichandran, who were her colleagues and acquainted with the initials. Accused No.1 was 31 Spl.C.C.150/05 J working as Manager in that Branch and Ex.P.89 bears the initial of accused No.1 and herself. Accused No.9 was the Credit Manager and he has signed on Ex.P.117 for passing cheque for payment and on Ex.P.135 there is initial of accused No.9 and her signature for cancellation of cheque. Ex.P.84 has been cancelled by her colleague by Gayathri Sadu by putting her initial. Ex.P.95 and Ex.P.110 are signed by accused No.9 for cancellation. Ex.P.85, Ex.P.94, Ex.P.97, Ex.P.113, Ex.P.114, Ex.P.118 to Ex.P.121 and Ex.P.124 to Ex.P.126 have been signed by N. Chaithnya, for cancellation. Ex.P.87 and Ex.P.88 Ex.P.90 and Ex.P.91 have been signed by accused No.9. Accused No.1 has put his initial on Ex.P.89. Ex.P.97, Ex.P.98, Ex.P.100, Ex.P.104, Ex.P.105, Ex.P.107, Ex.P.108, Ex.P.111, Ex.P.113, Ex.P.115 to Ex.P.117, Ex.P.119, Ex.P.122, Ex.P.124 to Ex.P.126, Ex.P.134 to Ex.P.136, and Ex.P.142 to Ex.P.146 and Ex.P.149 to Ex.P.153 bears the initials of accused No.9 for cancellation.
32. Twentieth, the prosecution has adduced and relied upon the evidence of PW.20-Sri. P.R. Anjanareddy, who was Senior Manager, in Punjab National Bank, Regional Office, M.G. Road, Bangalore, from 2002 to 2008. He has deposed that on 04/01/2005 in his presence and in the presence of another 32 Spl.C.C.150/05 J witness Smt. Shanthi the search of residence of accused No.2 was conducted by the CBI Officer and seized only four documents mentioned in the search list Ex.P.189.
33. Twenty-firstly, the prosecution has adduced and relied upon the evidence of PW.21-Sri. M. Raja, Dy.S.P. CBI. He has deposed that on 04/01/2005 he conducted search as per the instructions of Sri. K.M. Ramesh, Inspector of Police, CBI, of residential premises of accused No.3 at Malleswaram in the presence of two independent witnesses and seized in all nine documents under search list Ex.P.190.
34. Twenty-secondly, the prosecution has adduced and relied upon the evidence of PW.22-Sri. Rajendra Hinduja. He has deposed that during 1984-85 he purchased the property of accused No.3 Srinivas Jagirdar in a public auction conducted by KSFC. The accused No.3 being aggrieved by the auction approached the Hon'ble High Court stating that the procedure followed for auction by KSFC was not proper and his request was rejected and Ex.P.191 is the Order passed by the Hon'ble High Court.
35. Twenty-thirdly, the prosecution has adduced and relied upon the evidence of PW. 23-Sri. H.R.Katti, Advocate. He has deposed that he is a legal advisor and panel advocate to 33 Spl.C.C.150/05 J Bank of India from 2001 and he has verified the loan documents and other documents executed for the loan by the borrower and given his opinion as per Ex.P.77 along with his covering letter. He has further deposed that he has given his another legal opinion as per Ex.P.187.
36. Twenty-fourthly, the prosecution has adduced and relied upon the evidence of PW.24-Sri. S. Narayanamurthy, who was officer in Punjab National Bank, Regional officer, M.G.Road, Bengaluru, from 2001 to 2005. He has deposed that on 04/01/2005 in his presence and in the presence of another witness Sri. Subramanya, Manager, Syndicate Bank, CBI Officer conducted the search of the residential premises of accused No.4 situated at Richmond Town, Bengaluru and seized some documents under search list Ex.P.192.
37. Twenty-fifthly, the prosecution has adduced and relied upon the evidence of PW.25-Sri. S.B. Shivakumar, who was Branch Manager, in State Bank of Mysore, Cooke town branch, Bengaluru, from May 2002 to May 2005. He has deposed that on 04/01/2005 in his presence and in the presence of another witness Sri.Ashok Anekal, Branch Manager, Vijaya Bank, Dy.S.P. CBI conducted the search of the office premises of accused No.2 34 Spl.C.C.150/05 J and 4 situated at Vasanthnagar, Bengaluru and seized some documents under search list Ex.P.193.
38. Twenty-sixthly, the prosecution has adduced and relied upon the evidence of PW.26-Sri- U.L.Somappa, Advocate, Bengaluru. He has deposed that since 1994, he is panel advocate to Bank of India, Bengaluru and accused No.4 had brought Xerox copies of the documents and he verified them and while giving his legal opinion as per Ex.P.15, he verified the originals except document No.1 and 3 and gave his opinion.
39. Twenty-seventhly, the prosecution has adduced and relied upon the evidence of PW.27-Smt.Banu Nagarajan, who was Deputy Manager in Bank of India, Richmond Town Branch, Bengaluru, from Nov.2000 to May 2003. She has deposed that she was put in charge of term deposit, current account and savings account and as second officer she used to sign on pay order and cheques. She has put her initials on Ex.P.86, Ex.P.118, Ex.P.121 and Ex.P.149 and accused No.1 has put his signature on Ex.P.1 as per Ex.P.1(b), Ex.P.7, Ex.P.59 and Ex.P.68.
40. Twenty-eighthly, the prosecution has adduced and relied upon the evidence of PW.28-Sri-D.Ganesh, who was Branch Manager, HDFC Bank, Malleswaram Branch, Bengaluru, 35 Spl.C.C.150/05 J during 2005. He has deposed that as per the request of CBI Officer he produced documents for the purpose of investigation under receipt memo Ex.P.194 and documents produced by him are Ex.P.195 to Ex.P.197.
41. Twenty-ninthly, the prosecution has adduced and relied upon the evidence of PW.29-Sri-P.V.Krishna Murthy, who was Assistant General Manager, in Bank of India, Karnataka Zone, from 2004 to 2007. He has deposed that he knows accused No.9, he was serving as Deputy Manager (Credit), Richmond Town Branch, Bengaluru, from 2001 to 2003 and he was the removing authority for accused No.9 from his service as per the Bank of India Officer/Employees (Discipline & Appeal) Regulations 1976. He received investigation report, FIR, statements of witnesses and copies of documents from S.P. CBI, Bengaluru, for recording sanction in respect of accused No.9, he has gone through the all records, came to the conclusion that there is a prima facie case to proceed against accused No.9 and accordingly passed sanction order to prosecute accused No.9 as per Ex.P.198.
42. Thirtieth, the prosecution has adduced and relied upon the evidence of PW.30-Sri-D.Ramakrishna, who was Superintendent in BDA, Bengaluru, from 2005 to 2008. He has 36 Spl.C.C.150/05 J deposed that he was scrutinizing the file, after his note, forwarding the file to the Deputy Secretary, BDA, Bengaluru, for his approval. Ex.P.18, Ex.P.21(c), Ex.P.17, were not issued and executed from BDA and they are not genuine documents and Ex.P.21 was executed from BDA and it is a genuine document.
43. Thirty-firstly, the prosecution has adduced and relied upon the evidence of PW.31-Sri-M.Gundu Rao, who was Superintendent, BDA, Bengaluru, from 1996 to 2005 and thereafter Tahasildar till his retirement. He has deposed that Ex.P.174 is a genuine registered Sale Deed executed by BDA, and so also Ex.P.21 is a genuine original lease cum sale agreement executed by BDA in favour of allottee. Ex.P.21(a) is the possession certificate issued from BDA. Ex.P.175, Ex.P.71 are not genuine documents and not executed by BDA and he produced Ex.P.201 to Ex.P.210 before CBI Officer under receipt memo Ex.P.200.
44. Thirty-secondly, the prosecution has adduced and relied upon the evidence of PW.32-Sri- P.R.Kalyana Raman, who was Zonal Manager, Bank of India, Bengaluru, from April 2003 to April 2006. He has deposed that as a Zonal Manager his duties were to look into all the administrative work of the Zone including business development of the Bank. As a Zonal 37 Spl.C.C.150/05 J Manager he has handled this case and gone through the records and familiar with the facts of the matter. In the present case, the Branch Manager of the Bank of India, Richmond Town Branch, Bengaluru, exceeded his powers in some accounts and procedures in reporting in some cases were not followed. There were lapses in respect of the administration of the accounts. Accused No.1 was the Branch Manager of Bank of India, Richmond Town Branch, Bengaluru, and Ex.P.211 is his letter containing the guide-lines issued by the Bank regarding legal opinion to be obtained by the Banks from empanelled lawyers, to obtain valuation from the approved valuers and other clarifications. He has written other letters to the Investigating Officer as per Ex.P.212 to Ex.P.214 and circular is Ex.P.215. In his cross-examination he has admitted that though he has no personal knowledge about the transaction but gathered information based on the records and deposed his evidence.
45. Thirty-thirdly, the prosecution has adduced and relied upon the evidence of PW.33-Sri-K. Hari Om Prakash, Dy.S.P. CBI, Bengaluru. He has deposed that 0n 04/01/2005 as per the request of the I.O. he conducted search of residential premises of accused No.2 at Mysore in the presence of two independent 38 Spl.C.C.150/05 J witnesses Under Section 165 Cr.P.C. and seized two items of documents under search list Ex.P.216.
46. Thirty-fourthly, the prosecution has adduced and relied upon the evidence of PW.34-Sri-C.L.George, Managing Director of M/s. Weld Craft Private Ltd., Tumkur Road, Yeshwanthapura, Bengaluru. He has deposed that he has written a letter to the CBI Officer as per Ex.P.29 on 18/04/2005 and given the copy of the order passed in HRC.No.2319/1989 dated:12/12/1995.
47. Thirty-fifthly, the prosecution has adduced and relied upon the evidence of PW.35-Sri-Captain R.K. Sharma, who was Manager (Security) Corporation Bank, Zonal office, Residency Road, Bengaluru, from 2004 to 2009. He has deposed that on 04/01/2005 the CBI Officer conducted search of residential premises of accused No.1 in his presence and in the presence of another witness and seized one document under Ex.P.217.
48. Thirty-sixthly, the prosecution has adduced and relied upon the evidence of PW.36-Sri. R.B.Bhosale, Scientist-B, CFSL., Hyderabad. He has deposed that he received documents marked Q.1 to Q.136, Q.101-A, Q.108-A, Q.134-A, S.1 to S.79, A.1 to A.13, in 185 sheets, after following the procedure he opened the documents, examined the documents by using 39 Spl.C.C.150/05 J necessary scientific equipments and given his opinion as per Ex.P.239 and given his reasons for his opinion as per Ex.P.240.
49. Thirty-seventhly, the prosecution has adduced and relied upon the evidence of PW.37-Sri-K.M.Ramesh, Investigating Officer. He has deposed that as per the orders of his Superintendent of Police CBI, ACB, Bengaluru, he took up investigation, secured the records, recorded the statement of the witnesses, conducted search, obtained the opinion of expert and obtained the sanctioned order for prosecution of accused No.9 and concluded the investigation and filed a charge sheet against accused No.1 to 5, 7 to 9 before the court.
50. Based on the above evidence of the prosecution now I will consider the matters one after the another. In this regard firstly, I will consider the validity of the sanction order for prosecution of accused No.9. It is an admitted fact that though accused No.1 was a public servant at the time of the alleged commission of the offences, but at the time of lodging the FIR and filing of final report, he was not a public servant since he was dismissed from the service by his disciplinary authority. The prosecution has obtained sanction order in respect of accused No.9 as per Ex.P.198. In this regard, it is pertinent to note the evidence deposed by PW.29. He has consistently deposed that 40 Spl.C.C.150/05 J after receiving the copy of investigation final report, statements of witnesses, documents he verified them, applied his mind and satisfied that there was a prima facie case made out for prosecution of accused No.9 and accordingly, he passed the sanction order Ex.P.198. Further he has deposed that Ex.P.199 is the Certified Copy of Discipline and appeal Regulations of Bank of India. On perusal of the oral evidence of PW.29, contents of Ex.P.198 and Ex.P.199 there are no reasons to disbelieve his evidence and to say that the sanction order passed by him is invalid. There is no much dispute about the legality of the sanction order passed by PW.29 as per Ex.P.198. Hence, the prosecution has proved that the sanction order Ex.P.198 is a valid sanction order passed by the PW.29 who is competent to pass the said order as provided under Ex.P.199.
51. Secondly, I will consider the history of property No.60 offered as security in favour of Bank of India, by deceased accused No.3 for sanction of the Credit Facilities in favour of accused No.8. As seen from the evidence of PW.10 and PW.11 who are the brother and sister of deceased accused No.3 have deposed about allotment of property No.60 by CITB, in favour of M/s. Sham Industrial Complex, a registered partnership firm, wherein they are the partners which was established in the year 41 Spl.C.C.150/05 J 1974, till today in existence. Further, they have deposed that the CITB executed lease cum sale agreement, then registered sale deed and issued possession certificate in favour of M/s. Sham Industrial Complex, represented by PW.10. Further, PW.10 has deposed that 3/4th of property was sold by KSFC in public auction for the dues payable to it in favour of M/s. Gokuldas. Then he has deposed that Ex.P.18, Ex.P.23, Ex.P.24 and Ex.P.28 are not concerning to him and do not bear his signature. The evidence deposed by PW.10 and PW.11 cannot be discarded as the same is supported from documentary evidence.
52. Ex.P.16 and Ex.P.22 are the copy and original registered lease cum sale agreement executed by CITB in favour of M/s Sham Industrial Complex, represented by its partner Kishan Jagirdar-PW.10. As per Ex.P.22 Site No.60 of Industrial suburb, 2nd stage, Rajajinagar, Bengaluru, was allotted in favour of M/s. Sham Industrial Complex, for doing its business and Ex.P.22 was executed on 22/10/1975. Absolutely, there is no dispute about the allotment and execution of Ex.P.22 by CITB in favour of M/s Sham Industrial Complex. Further, Ex.P.19 is the possession certificate issued by CITB in favour of M/s. Sham Industrial Complex, for delivery of the possession of Site No.60, 42 Spl.C.C.150/05 J pursuant to the allotment and lease cum sale. Thereafter M/s Sham Industrial Complex, represented by PW.10 was doing its business in the said property.
53. As per the evidence of the prosecution, it is an admitted fact that M/s. Sham Industrial Complex, had availed loan from Karnataka State Financial Corporation and for non- payment of the dues the KSFC conducted auction of 3/4th of property No.60 and in the public auction M/s Gokuldas Exports, a registered partnership firm represented by its Managing Partner Sri.Rajendra R. Hinduja-PW.22 purchased the said property during 1984-85. It is further admitted that PW.10 and 11 as a partners of M/s Sham Industrial Complex, and the accused No.3 as the Managing Partner of the said firm preferred W.P.No.21703 and 10352/1986 before the Hon'ble High Court challenging the legality of the public auction by KSFC, and the Hon'ble High Court passed an order as per Ex.P.191 on 30/03/1994 and dismissed both the writ petitions. In this regard the evidence deposed by PW.22 before the court is unchallenged and supported from Ex.P.191. As per Ex.P.191 the 3/4th of the property was already sold in favour of M/s Gokuldas Exports, a partnership firm during 1984-85 out of property No.60 allotted in favour of PW.10 and PW.11 firm. It is further forth coming 43 Spl.C.C.150/05 J that by virtue of public auction of 3/4th property in property No.60 the title of that property has been passed in favour of purchaser firm. It is also forth coming that during 1984-85 only 1/4th of property remained to M/s Sham Industrial Complex firm. PW.10 has also deposed about the borrowing made by their firm from KSFC and sale of 3/4th of property in public auction by KSFC in property No.60. Further, PW.10 and 11 have deposed about power of attorney executed by PW.11 in favour of deceased accused No.3 as per Ex.P.185 and cancellation of the same by giving public notice as per Ex.P.186.
54. As per the evidence, it is admitted that BDA, Bengaluru, executed registered Sale Deed of Site No.60, in favour of M/s. Sham Industrial Complex, as per Ex.P.174. In this regard, PW.2 who was Deputy Secretary in BDA, Bengaluru, has deposed his evidence stating that he has executed Ex.P.174 in favour of M/s Shyam Industrial Complex, represented by its Proprietor-accused No.3. PW.2 to 5 have also deposed about the execution and registration of Ex.P.174 and identified their signatures. The evidence deposed by PW.2 to 5 are unchallenged in any manner. PW.31 has deposed that Ex.P.174 is a genuine registered Sale Deed executed by BDA and so also Ex.P.21 is a genuine original lease cum sale agreement 44 Spl.C.C.150/05 J executed by BDA in favour of allottee. Further he has deposed that Ex.P.21(a) is the possession certificate issued by BDA. Therefore, there is no dispute that Ex.P.174 is a original registered Sale Deed executed by PW.2 and it is a genuine document executed in the name of M/s. Shyam Industrial Complex, represented by its Proprietor and Ex.P.21(a) is the possession certificate issued by the BDA.
55. The evidence of the prosecution proves that the partnership firm of PW.10 and 11 is named as M/s Sham Industrial Complex and site No.60 was allotted in the name of said firm and lease cum sale was executed as per Ex.P.21. When the firm named as M/s Shyam Industrial Complex, came into existence represented by deceased accused No.3 is not forthcoming.
56. Ex.P.23 is said to be a partnership deed between PW.10, 11 and deceased accused No.3 on 20/11/1980 in respect of firm named as M/s Shyam Industrial Complex. It is pertinent to note that PW.10 has deposed that Ex.P.23 is not pertaining to their firm and does not bear his signature. So also PW.11 has deposed that Ex.P.23 is not pertaining to their firm and does not bear her signature. During the investigation the specimen signatures of PW.10 were collected as per Ex.P.226 45 Spl.C.C.150/05 J marked by S. 29 to 32. The questioned signature of PW.10 on Ex.P.23 marked as Q.47, Q.50 and Q.52 were compared and examined by PW.36 hand-writing expert and given his opinion at para 10 of his report Ex.P.239. In his evidence PW.36 has deposed that the questioned signatures marked by Q-47, Q-50, Q-52 in Ex.P.23 and compared the same with the sample signatures (of Kishan Jagirdar, not cited) marked by S-29 to S- 32 are marked at Ex.P.226 and came to the conclusion that the said sample and admitted signatures on the one hand and the question signatures on the other, referred to are not made by one and the same person. Further he has deposed that questioned signatures at Q-48 and Q-53 in Ex.P.23 are the signatures of Srinivas Jagirdar who is deceased accused No.3. The evidence of the prosecution clearly proves that Ex.P.23 is a created document by deceased accused No.3 behind the back of PW.10 and 11 and forging the signatures.
57. Ex.P.24 is said to be dissolution of partnership deed between PW.10, 11 and deceased accused No.3 on 31/03/1998 in respect of firm named as M/s Shyam Industrial Complex. It is pertinent to note that PW.10 has deposed that Ex.P.24 is not pertaining to their firm and does not bear his signature. So also PW.11 has deposed that Ex.P.24 is not pertaining to their firm 46 Spl.C.C.150/05 J and does not bear her signature. During the investigation the specimen signatures of PW.10 were collected as per Ex.P.226 marked by S. 29 to 32. The questioned signature of PW.10 on Ex.P.24 marked as Q.55, Q.58,Q-60 and Q.62 were compared and examined by PW.36 hand-writing expert and given his opinion at para 10 of his report Ex.P.239. In his evidence PW.36 has deposed that the questioned signatures marked by Q-55, Q- 58, Q-60 and Q-62 in Ex.P.24 and compared the same with the sample signatures (of Kishan Jagirdar, not cited) marked by S- 29 to S-32 are marked at Ex.P.226 and came to the conclusion that the said sample and admitted signatures on the one hand and the question signatures on the other, referred to are not made by one and the same person. Further he has deposed that questioned signatures at Q-56 in Ex.P.24 is the signature of Srinivas Jagirdar who is deceased accused No.3. The evidence of the prosecution clearly proves that Ex.P.24 is a created document by deceased accused No.3 behind the back of PW.10 and 11 and forging the signatures.
58. Thirdly, I will consider the admissibility of the documents relied upon by the prosecution because the accused No.1 has challenged the very admissibility of the documents stating that mere marking of documents does not dispense with 47 Spl.C.C.150/05 J the proof of the contents. The prosecution has produced Ex.P.1 the current account opening form submitted by the accused No.8 on 24/10/2001 along with enclosures. There is no dispute about the current account opened by the accused No.8 by submitting Ex.P.1 and the enclosures in Bank of India, Richmond Town Branch, and Bengaluru. Admittedly, the current account in the name of accused No.8 was opened during the tenure of accused No.1 as a Branch head who accepted the application put his signature as per Ex.P.1(b) has approved. The succeeding officer of accused No.1 PW.1 has deposed about the said document who has produced it before the CBI during the investigation. When the document is admitted there is no necessity of proving the contents of the same. The learned counsel for the accused No.1 relied upon a decision reported in 2015 (1) KCCR page 898 in the case of Sri.N.A.Suryanarayana @ Suri Vs. State by Inspector of Police, CBI/SPE/Bangalore, wherein the Hon'ble High Court held that production and marking of document not sufficient, they have to be proved to corroborate their contents. The principles of this decision cannot be applied to Ex.P.1 because it was dealt by accused No.1 himself as a Head of the Branch and the document is admitted.
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59. Ex.P.2 is the application submitted by the accused No.8 along with the enclosures and guarantors profiles, Ex.P.3 is the copy of Fiat dealer Agreement, Ex.P.4 is the request letter for Credit Facilities and Bank Guarantee for their business from Bank of India and Ex.P.5 is the Memorandum and Articles of association of accused No.8 submitted by accused No.8 to Bank of India for sanction of Credit facilities. As seen from the evidence and admitted facts it is clearly admitted that accused No.8 submitted the required application along with enclosures and the other documents requesting for sanction of Credit Facility. These documents have been received accused No.9 as a Deputy Manager, Credit and processed by the accused No.1 who was the Branch head. Such being the fact, PW.1 who is the successor of accused No.1 has produced those Bank records and deposed about them. Accused No.2, 7 to 9 have also clearly admitted the application for Credit Facility submitted by accused No.8. PW.13 who is one of the guarantors for the Credit Facilities and wife of deceased accused No.4 has deposed about the profession and Directorship of her deceased husband in accused No.8. She has also deposed about the application for Credit Facility and the documents signed by her as a guarantor.
49 Spl.C.C.150/05 J Such being the fact, it cannot be said that the documents are not admissible in evidence and cannot be looked into.
60. Then Ex.P.6 is the Free sanction Inspection Report dated:18/10/2001 of accused No.8 Show Room and workshop situated at Miller Road. Ex.P.6(a) is the Inspection report of property No.320/1 prepared and submitted by accused No.1. Ex.P.6(b) is the Inspection Report of accused No.1 in respect of property No.60. Ex.P.7 is the letter of accused No.1 to the Zonal Office of Bank of India, clarifying the points raised by Zonal office in the proposal submitted to it for sanction of Credit Facility to accused No.8. Ex.P.7(a) is the Memorandum of sanction which is signed by accused No.1. Ex.P.7(b) and P.7(c) are the letters of accused No.1 to the Zonal office of Bank of India. Ex.P.7(d) is the letter of accused No.8, Ex.P.8 is the Inter-Office Memorandum for sanction of Credit Facility, Ex.P.9 is the Departmental recommendation letter for sanction. Ex.P.10 is the extracts of minutes of the meeting of Board of Directors of accused No.8 dated:05/12/2001 for inclusion of accused No.3 as Additional Director of accused No.8 till the next annual General Meeting. Ex.P.10(a) is the request for Working Capital and Bank Guarantee by accused No.8. The accused No.8 and its Directors accused No.2 and 7 and deceased accused No.4 have 50 Spl.C.C.150/05 J clearly admitted the documents submitted by the Company and proposal for sanction of Credit Facility and sanction of the same from the Zonal office. Therefore, when the documents have been admitted, there is no question of proof required to prove the contents of those documents as urged by the learned counsel for the accused No.1 Therefore, the documents Ex.P.6 to 10 are also admissible in evidence.
61. Further, Ex.P.11 is the letter of all the Directors of accused No.8 to the Manager, Bank of India, dated:28/12/2001 and there is no dispute about the same. Ex.P.12 is the letter of accused No.2 to the Manager, Bank of India, dated:28/12/2001 and there is no dispute about the same. Ex.P.13 is the letter of accused No.2 and there is no dispute about the same. Ex.P.14 is the letter of KSIIDC, dated:27/12/2001 to the Manager, Bank of India, Richmond Town Branch, Bengaluru, regarding consenting for creation of second charge in favour of Bank of India, on the fixed assets financed by their Corporation. Ex.P.15 is the legal opinion given by PW.26 and there is no dispute about his legal opinion.
62. Ex.P.16 is the copy of Lease cum Sale Agreement dated:22/10/1975 which is admitted by PW.10. Ex.P.17 is the alleged original registered Sale Deed said to have been 51 Spl.C.C.150/05 J executed by the BDA in favour of accused No.3 on 31/08/1998. PW.10 and 11 have deposed that this is not a genuine document. So also PW.2 has deposed that he has not executed Ex.P.17 and signatures on it are not his signatures. Further, PW.3 has also deposed that Ex.P.17 is a fake document. Further, PW.4 and 5 have deposed that Ex.P.17 does not bear their signatures for registration. Further, PW.36 has deposed that the signatures of PW.2, PW.3, PW.4 and PW.5 are not signed by them on Ex.P.17. Further, he has deposed that signatures of accused No.3 are signed by him only. Therefore, the evidence of the prosecution placed before the court and the contents of Ex.P.239 clearly proves that Ex.P.17 is a forged and fabricated document. It is also proved that when the accused No.3 has put his signature as a Proprietor of M/s. Shyam Industrial Complex for execution of Ex.P.17 as a purchaser, this fact goes to show that it is all the acts played by him for creation of the said document Ex.P.17 on the same day of execution of Ex.P.174.
63. Ex.P.20, Ex.P.20(a), Ex.P.20(b) and Ex.P.20(c) are the E.C. issued from SRO, Rajajinagar, Bengaluru. PW.6 and 7 have deposed about these documents and the alteration of date made after issue of those records. PW.36 has deposed that 52 Spl.C.C.150/05 J there are marks of erasure and alternation in Ex.P.20(a) marked as Q-43 and Q-44. The evidence of the prosecution proves that these documents have been issued from the SRO, Rajajinagar and after issue Ex.P.20(a) has been altered with regard to date of E.C.
64. Ex.P.27 is the letter of KSFC issued in favour of M/s. Shyam Industrial Complex, stating that no mortgage is subsisting in favour of KSFC in respect of property No.60, 2nd stage, Industrial Suburb, Bengaluru, belonging to M/s Shyam Industrial Complex, Bengaluru. Therefore, they have not claims whatsoever in respect of the said property.
65. Ex.P.28 containing two letters said to have been issued by PW.10 and PW.11. But PW.10 and 11 have deposed that they have not issued such letters in favour of accused No.3. Further, PW.36 has deposed that signature marked at Q-63 is not signed by PW.10. Therefore, as per the evidence of PW.1o and PW.11 have not signed and issued Ex.P.28 in favour of deceased accused No.3. Therefore, these letters have been forged by deceased accused No.3.
66. Ex.P.29 is the letter of Weld Craft Private Limited, written to the Investigating Officer, producing the copy of the order in HRC.No.2319/1989 dated:12/12/1995. In this regard 53 Spl.C.C.150/05 J PW.34 has deposed his evidence and his evidence is not disputed by any of the accused. As per the documents M/s Shyam Industrial Complex, represented by deceased accused No.3 had filed HRC Proceedings against M/s Weld Craft Private Limited, in respect of portion of property No.60.
67. Ex.P.30 is the letter of BDA stating that the signatures on the sale deed Ex.P.17 are not tallying to the signatures in the BDA records and there is no dispute about this letter.
68. Ex.P.31 is the valuation report of accused No.5, Ex.P.32 is the letter of accused No.5 to the Bank of India.Ex.P.33 to Ex.P.35 are the letters of Bank of Baroda to the Bank of India, stating that they have no objection for creation of second charge by way of mortgage in favour of Bank of India on the properties taken as security from accused No.8 to Bank of Baroda, and for other matters. There is no dispute about these documents.
69. Ex.P.36 is the letter of KSFC to M/s Shyam Industrial Complex, stating that there are no dues payable to them by M/s Shyam Industrial Complex. Ex.P.37 is the letter of authority from accused No.8 to Bank of India. Ex.P.38 to Ex.P.40 are the letters of guarantee in favour of Bank of India for Credit Facilities and there is no dispute about these documents.
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70. Ex.41 is the joint and several guarantee letter executed in favour of Bank of India, Ex.P.42 is the Inland Bank guarantee, Ex.P.43 is on demand promissory note for Rs.100 Lakhs, Ex.P.44 is the agreement of hypothecation of plant and machinery, stocks and book-debts, Ex.P.45 is the continuing security for demand promissory note, Ex.P.46 is the undertaking letter in favour of Bank of India, Ex.P.47 is joint and several guarantee letter, Ex.P.48 is the letter of acknowledgement of debts and security, Ex.P.49 is the on demand promissory note for Rs.50 Lakhs, Ex.P.50 is the security letter, Ex.P.51 is the various undertaking letter in form No.L-514, Ex.P.52 is the joint and several guarantee letter, Ex.P.53 is the letter of acknowledgment of debts/securities, Ex.P.54 is the on demand promissory note for Rs.50 lakhs, Ex.P.55 is the bearer letter, Ex.P.56 is the supplemental deed of hypothecation, Ex.P.57 is the joint and several guarantee letter and Ex.P.58 is the form No.L-514. There is no dispute about the execution of on demand promissory note, guarantee letters, deed of hypothecation, acknowledgment of debt by the accused No.8 through its Directors and guarantee of other Directors for borrowing of the Credit Facility from Bank of India. Further, accused No.1 and 9 who were the Branch Head and Credit Manager have obtained 55 Spl.C.C.150/05 J the documents from the borrowers and guarantors and dealt with the documents and they have also not disputed the documents obtained by them as a security for the Credit Facility.
71. Ex.P.59 is the letter of Bank of India, in favour of KSSIDC, Ex.P.60 is the certified copy of attendance register for equitable mortgage, Ex.P.61 is the CPA-I, Ex.P.62 is the CPA-II, Ex.P.63 is the letter of KSSIDC to Bank of India, Ex.P.64 is the letter of Bank of Baroda to Bank of India, Ex.P.65 and Ex.P.66 are the letters of accused No.8 to Bank of India, Ex.P.67 is the certified copy of extract of minutes, Ex.P.68 is the proforma for reporting temporary/additional limit, Ex.P.69 is the C/c of letter from Zonal Office, Ex.P.70 is the letter of FIAT India, Ex.P.71 is the search report, Ex.P.72 is the letter of accused No.8 to DGM, Bank of India, Ex.P.73 and 74 are the Bank of India letters to deceased accused No.3, Ex.P.75 is the letter of accused No.2 to Bank of India, Ex.P.76 is the letter from accused No.3, Ex.P.77 is the letter of PW.23 along with his legal opinion to Bank of India, Ex.P.78 is the certified copy of investigating report submitted by Sri. Sanjay Pawar, Ex.P.79 is the letter of PW.16, valuer N.G.Sheshagiri Rao along with his valuation report and there is no dispute about these documents.
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72. Ex.P.80 to 153 are the original cheques, pay-in-slip of accused No.8 and accused No.4 for making payment in favour of various persons and withdrawal of the funds and there is no dispute about these transactions made by accused No.8. PW.18, PW.19 and PW.27 have deposed about the passing of the cheques and signatures made by them as second officers. There is no dispute about these evidence deposed by PW.18,19 and PW.27 and the cheques passed by them for payment.
73. Ex.P.154 is the certified copy of registered sale deed dated:31/08/1998, Ex.P.155 is the extract of Minutes of meeting dated:05/12/2001, Ex.P.156 is the letter of Bank of India to accused No.2, Ex.P.157 and 158 are Fixed Deposit receipts for Rs.38 and 37 lakhs respectively, Ex.P.159 is the statement of account pertaining to account of accused No.8 company, Ex.P.160 and Ex.P.161 are the debut vouchers along with statement of account, Ex.P.162 is the statement of account of accused No.8 pertaining to current account No.11298 along with certificate, Ex.P.163 is the manual of instructions of Bank of India, Ex.P.164 and 165 are the circulars issued by Bank of India. There is no dispute about Ex.P.154 to 165 by any of the accused.
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74. Ex.P.166 are the six photographs pertaining to plot No.60, taken on 15/04/2005, Ex.P.167 is the proceedings along with sketch drawn on 15/04/2005 at property No.60, Ex.P.168 is the proceedings along with sketch at property No.66, Ex.P.169 are six photographs in respect of plot No.66.In this regard PW.1 S. Shekar, Manager, Bank of India, has deposed that on 15/04/2005 they inspected property No.60 and proceedings have been drawn as per Ex.P.167. Further, he has deposed that Ex.P.167 he has put his signature as per Ex.P.167(a). So also PW.37 Sri. K.M. Ramesh, Investigating Officer has also deposed about the proceedings conducted by him as per Ex.P.167 on property No.60 in the presence of accused No.4 and 5 and PW.1 and PW.16. Therefore, the evidence of prosecution is proving that the proceedings were conducted as per Ex.P.167 on property No.60. At that time only it was revealed that ¾th property was already purchased by Hinduja Family in a public auction for the dues payable to KSFC. After the purchase of the property they have constructed one new building on the same and two old buildings were in existence. Hinduja family is running a garment factory in the name and style of M/s. Gokuldas Exports. The evidence of the witnesses prove that Ex.P.166 were taken in respect of property 58 Spl.C.C.150/05 J No.60 on 15/04/2005. On perusal of the photographs it can be seen that the garments factory is run by Hinduja brothers in the name of Balaji Finishing House. Further, it is forth coming from the contents of Ex.P.167 that after purchase of ¾th of property out of property No.60 by Hinduja brothers in 1984 they demolished the northern portion of old sheds and constructed the new building about 7-8 years ago prior to the inspection by the Investigating Officer and mahazar team. It is also mentioned that accused No.3 is not at all the owner of site No.60 and the remaining portion was owned by PW.10 and 11. It is also mentioned that the southern portion measuring 7560 Sq. feet has been leased by PW.10 and 11 in favour of M/s. Weld craft during 1976 and they are paying the rent to PW.10 and PW.11 for their tenancy. It is also mentioned that the tenant has no contact with deceased accused No.3. It is also mentioned that deceased accused No.4 and accused No.5 admitted that they never visited the property No.60 on any earlier occasions. It is pertinent to note that deceased accused No.4, accused No.5 have also signed on Ex.P.167 admitting the proceedings in their presence on property No.60. As seen from the sketch prepared by PW.16 in respect of property No.60 most of the area is constructed with AC sheet sheds, RCC four floors 59 Spl.C.C.150/05 J building and RCC framed structure building consisting of cellar, ground floor, first and second floors. It is also mentioned that the property adjoining to the property purchased by Hinduja brothers situated on the southern side of their property is also utilized by them as appearing in photograph No.2.
75. Regarding Ex.P.168 PW.1 has consistently deposed his evidence that they inspected the property No.66 and conducted the proceedings. He has also put his signature as per Ex.P.168(a). PW.16 has deposed that he visited along with mahazar team, Investigating Officer and Bank Manager and inspected property No.66 and conducted the proceedings and taken the photographs Ex.P.169 and prepared the sketch. PW.37 Investigating Officer has also deposed about the proceedings conducted by him in the presence of accused No.4 and 5, PW.1, PW.16 in respect of property No.66. Therefore, the evidence of the prosecution is sufficient to prove the proceedings and contents of Ex.P.168, sketch and the photographs as per Ex.P.169. When Ex.P.168 was conducted on 15/04/2005 it is mentioned that Sri. A.D.Kulkarni, valuer has identified the property mentioned at above address for that he had submitted his valuation report on 14/11/2001 to Bank of India as the said property stands in the name of Sri. Srinivas 60 Spl.C.C.150/05 J Jagirdar. Further it is mentioned that as instructed by the Investigating Officer Sri. A.D. Kulkarni, valuer has measured the said property with existing condition and found East to West 180 feet and North to South 385 feet (area 69,300 Sq.ft). It is also mentioned that the address, boundaries, the building and approximate land area were found is correct, when the same was measured as per the approved plan given to him at the time of valuation report dated:14/11/2001, the land area was 43,560 Sq. ft.
76. It is also mentioned in Ex.P.168 that Sri.Kulkarni, valuer, has admitted that he did value the above said property as plot No.60, 1st Main, 2nd Stage, Rajajinagar Industrial suburb, area Yeshwanthapur, Bengaluru-22, at the time of his valuation there were no Board/Number exist and as per the advise of the Dhananjay Chawan who accompanied him and identified the property was valued. He also admitted that on the day of his visit to that property for valuation purpose along with Dhananjay Chawan he had enquired some of the workers, watchman, etc., but they did not know Sri. Srinivasa Jagirdar and also the owner of the property. It is further mentioned that Sri. Dhananjay Chawan has also admitted that he had shown the same property to Mr. Kulkarni as property No.60, 1st Main, 61 Spl.C.C.150/05 J 2nd Stage, Rajajinagar Industrial Suburb area, Yeshwanthapur, Bengaluru-22. It is further mentioned that Sri. Dhananjay Chawan identified the faded paint board written as "Shaw- wallies" on the zinc sheet, on the adjacent building/main workshop and admitted his "mistake" that he mis-took it as "Shyam Industrial Complex". When the valuation report was presented by Kulkarni, he also admitted this fact. Photos of the said property was also taken by Sri. A.D.Kulkarni and signed by above team members. A site plan of the above existing condition has been prepared by Sri. A.D.Kulkarni which was also signed by above team of persons. Accused No.4 and 5, PW.1, PW.16 and Investigating Officer, have signed on Ex.P.168 and the sketch prepared in respect of property No.66 which was entirely different. So also the photographs of property No.66 have been taken as per Ex.P.169 and signed by the above mentioned persons on each photographs. Therefore, the genuineness of proceedings conducted by the Investigating Officer, during the investigation as per Ex.P.167 and Ex.P.168 cannot be disbelieved.
77. Ex.P.170 is the letter of Bank of Baroda to Bank of India, Richmond Town Branch, Bengaluru, in respect of properties No.17 and 261/6 belongs to accused No.2 and Mrs. 62 Spl.C.C.150/05 J Barbara Chawan-PW.14 for creation of second charge on the said properties. Ex.P.171 is the attendance register of Bank of India which shows that accused No.9 and Smt. Gayathri Sadu were present on duty and passed the cheques for making payment. Ex.P.172 is the Bank of India letter addressed to Investigating Officer along with powers delegated to officers for cancellation of signatures and signing of vouchers and there is no dispute about the powers delegated to the officers. Ex.P.173 is the certified copy of letter dated:20/12/2002 of accused No.9 to accused No.1 regarding confirmation for allowing TOL/TAL in a few advance accounts including account of accused No.8.
78. Ex.P.174 is the original registered sale deed and regarding that already discussion has been made in the above paras. Ex.P.175 is the possession certificate said to have been issued from BDA. It is deposed by PW.3 that it is not issued by BDA and it is not a genuine document. Further he has deposed that the possession certificate in respect of property No.60 was given to PW.10 Sri. Kishan Jagirdar and not in the name of accused No.3. PW.36 has deposed that questioned signatures marked as Q-70 is the signature signed by accused No.3. The evidence of the prosecution proves that Ex.P.175 is a concocted document in the name of CITB and its officers. When the 63 Spl.C.C.150/05 J signature of accused No.3 is forth coming on Ex.P.175 as Allotte it can be inferred that he has created this document in the name of M/s. Shyam Industrial Complex, for the purpose of cheating.
79. Ex.P.176 is the encumbrance certificate of site No.60 for the period from 01/04/1980 to 23/09/1999. PW.5 has deposed that Ex.P.176 has been issued from their office. On careful perusal of the date it appears that there is alteration with regard to year 1980 and years. Ex.P.177 is the loan application of Srinivas Jagirdar-accused No.3 to Grain Merchants Co-operative Bank for availing loan of Rs.25 Lakhs for his business during 1999. PW.8 has deposed that deceased accused No.3 submitted application as per Ex.P.177 for sanction of loan of Rs.25 Lakhs, along with property documents as per Ex.P.174, 175, 176, 178,179,180 were also given. Further, he has deposed that the loan was sanctioned and deceased accused No.3 created equitable mortgage of property No.60 by depositing the title documents of the said property as a security. The evidence deposed by PW.8 is not disputed in any manner by any of the accused for the borrowings of deceased accused No.3 and mortgage of property No.60 as a security for the said borrowing.
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80. Ex.P.181 is the loan application of Smt. Kousalya Wife of Srinivas Jagirdar-accused No.3 to Grain Merchants Co- operative Bank for availing loan of Rs.25 Lakhs for her business during 2000. PW.8 has deposed that Smt. Kouslya submitted application as per Ex.P.181 for sanction of loan of Rs.25 Lakhs, along with property documents as per Ex.P.182 and 184 were also given. Further, he has deposed that the loan was sanctioned and Smt. Kousalya and deceased accused No.3 jointly executed deed of collateral security as per Ex.P.183 and created equitable mortgage of property No.60 by depositing the title documents of the said property as a security for her loan. The evidence deposed by PW.8 is not disputed in any manner by any of the accused for the borrowings of Smt. Kousalya and mortgage of property No.60 as a security for the said borrowing. As per the evidence of the prosecution it is proved that accused No.3 and his wife borrowed loan from Grain Merchant Co-operative Bank during 1999 and 2000 and created mortgage in respect of property No.60. It is proved from the evidence that deceased accused No.3 without having any right in the property No.60 executed registered gift deed in the name of his wife as per Ex.P.182 on 25/09/1999. It is also proved from the evidence that Ex.P.174 without authority by creating 65 Spl.C.C.150/05 J documents in the name of M/s. Shyam Industrial Complex deceased accused No.3 obtained Ex.P.174 from BDA and given the same to Grain Merchant Co-operative Bank for creation of equitable mortgage on his borrowings. It is further proved that by depositing Ex.P.174 with Grain Merchant Co-operative Bank deceased accused No.3 created Ex.P.17 as an original document alleged to have been executed by BDA and given the said document to Bank of India, for creation of mortgage for the Credit Facilities availed by accused No.8.
81. Ex.P.185 is the power of attorney dated:17/07/1976 executed by PW.11 in favour of deceased accused No.3 and Ex.P.186 is the copy of the notice dated:26/07/1984 published in Deccan Hearld, English daily Newspaper for cancellation of Ex.P.185. PW.10 and PW.11 have deposed about the power of attorney Ex.P.185 given by PW.11 in favour of accused No.3 and the cancellation of the same as per Ex.P.186. The evidence deposed by PW.10 and 11 for Ex.P.185 and 186 is not disputed by any of the accused. As per Ex.P.185 PW.11 had given power of attorney to accused No.3 on 17/07/1976 to perform some acts on her behalf during her absence and she cancelled the authority by issuing Ex.P.186. As per Ex.P.185 PW.11 had given authority to accused No.3 in respect of M/s. Sham Industrial 66 Spl.C.C.150/05 J Complex and property No.60. Even under Ex.P.185 there was no authority to accused No.3 for reconstitution of partnership, change of firm name or for dissolution of the firm. It is proved that without authority accused No.3 created documents in the name of M/s Shyam Industrial Complex as per his will and wish.
82. Ex.P.187 is the opinion of Sri. H.R.Katti-panel advocate dated:26/08/2003. In this regard PW.23 has deposed that he has given legal opinion as per Ex.P.77 and Ex.P.187. His evidence is proving that being a panel advocate of Bank of India, given his legal opinion before sanction of Credit Facilities in favour of accused No.8 and after sanction on examining the documents. The evidence deposed by PW.23 and the legal opinion given by him as per Ex.P.77 and 187 are not disputed in any manner. Therefore the contents of Ex.P.77 and 187 are proved from the evidence of PW.23. Therefore, the same are admissible in evidence as relied upon by the prosecution.
83. Ex.P.188 is the certified copy of extract of Index Register. In this regard PW.15 who worked as a Senior Sub- Registrar, has deposed that as per Ex.P.188 there are entries as per Ex.P.188(a), 188(b) and 188(c) for Sale deed, gift and mortgage of property in favour of Grain Merchant Co-operative Bank. The evidence deposed by PW.15 and the contents of 67 Spl.C.C.150/05 J Ex.P.188 is not disputed in any manner by any of the accused. Therefore, the contents of Ex.P.188 are proved from the evidence of PW.15. It is pertinent to note that in the register of Index already there was entry in respect of gift of property and encumbrance in favour of Grain Merchant Co-operative Bank. It is forth coming that by suppressing the transactions and encumbrance as mentioned in Ex.P.20(c) the property was mortgated as a security in favour of Bank of India, for the Credit Facility sanctioned in favour of accused No.8.
84. Ex.P.189,190,192,193 and 194 are the search lists and receipt memo. There is no dispute regarding these documents. Ex.P.191 is already discussed. Ex.195 is the statement of account pertaining to the account of M/s Infra Soft Consultants India Private Limited with HDFC Bank, Malleswaram, Bengaluru. Ex.P.196 and 197 are the cheque deposit slips for Rs.10 lakhs and Rs.15 lakhs respectively. In this regard PW.28 has deposed that he produced documents Ex.P.195 to 197 before the CBI Officer under Ex.P.194. The evidence deposed by PW.28 is not disputed. As per Ex.P.195 to 197 an amount of Rs.25 lakhs has been credited to the account of M/s Infra Soft Private India Limited, on 09/01/2002 and 10/01/2002.
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85. Ex.198 is the sanction order and Ex.P.199 is the copy of disciplinary appeal regulations of Bank of India, issued by PW.29 for prosecuting accused No.9 and it is already considered while considering the validity of sanction order. Ex.P.200 is the receipt memo, Ex.P.201 is the certified copy of no due certificate of KSFC, Ex.P.202 is the certified copy of acknowledgement issued by BDA, Ex.P.203 is the certified copy of letter dated:28/04/1998 submitted by PW.31 to BDA for issue of certified copy of the records in respect of property No.60 purchased by them in the public auction. Ex.P.204 is the certified copy of registered sale deed dated:12/07/1988, Ex.P.205 is the certified copy of endorsement, Ex.P.206 and 207 are the letters, Ex.P.208 is the certified copy of E.C., Ex.P.209 is the certified copy of letter to BDA and Ex.P.210 is the certified copy of Indemnity Bond. In this regard PW.31 who served as Superintendent and then as a Tahasildar in BDA, Bengaluru, has deposed his detailed evidence about Ex.P.200 to 210. Ex.P.201 to 210 are the certified copies of the documents issued from the Record of office of BDA. None of the accused have disputed the genuineness of these documents produced and deposed by PW.31. From these documents it is proved that ¾th of property No.60 was already sold in public auction by KSFC in favour of 69 Spl.C.C.150/05 J M/s Gokuldas Exports and executed a registered sale deed in favour of purchaser on 28/01/1988 itself. It is also proved that for the dues payable by PW.10 and 11 borrowed from KSFC the property owned by them bearing No.60 was sold in public auction to the extent of ¾th. As per the auction sale and execution of Ex.P.204 the possession of 3/4th of the property was delivered to the purchaser M/s Gokuldas Exports. Thereafter, the possession of 1/4th property was only remained with PW.10 and 11. It is also proved that PWs. 10 and 11 given their portion of 1/4th property on lease to a tenant in 1976 and collecting the rent by them. Though 3/4th of property was already purchased by M/s Gokuldas Exports in public auction and under registered sale deed Ex.P.204 on 28/01/1988 and came in possession, demolished some old sheds on property No.60 and constructed a new buildings and started garment factory, that fact has not been noticed by the persons who said to have visited the said property prior to submission of proposal and sanction of the Credit Facility in favour of accused No.8.
86. Ex.P.211 to 213 are the letters of Zonal Manager, Bank of India, to CBI, furnishing the required information for the purpose of investigation. Ex.P.214 is the letter to CBI and Ex.P.215 is the circular No.95/87 regarding delegation of 70 Spl.C.C.150/05 J powers. Regarding these documents PW.32 who worked as Zonal Manager, Bank of India, has deposed his detailed evidence. As per his evidence he has deposed that accused No.1 and 9 have exceeded their powers in allowing TOL beyond delegated authority and without seeking rectification of TOL released in favour of accused No.8 Company. There is no dispute about the guidelines and circulars of the Bank as per Ex.P.215.
87. Ex.P.216 and 217 are the search lists regarding search and seizure conducted and witnesses have spoken about the search and seizure and there is no dispute about the documents seized during the search.
88. Ex.218 to Ex.P.237 are the specimen signatures of accused persons and witnesses and there is no dispute about the specimen signatures/initials collected by the Investigating Officer during his investigation for the purpose of investigation.
89. Ex.P.238 is the letter of G.E.Q.D. to the S.P.CBI forwarding his opinion as per Ex.P.239. During his evidence PW.36 has produced reasons for his opinion as per Ex.P.240. Further, he has deposed about the examination of the questioned signatures with specimen admitted signatures and arrayed to a conclusion and given his opinion. Therefore, the 71 Spl.C.C.150/05 J evidence of PW.36 who is an hand-writing expert is cogent and reliable evidence. There are no reasons to disbelieve his evidence for the scientific examination made by him and opinion given about the questioned signatures on the documents. Therefore, the evidence of PW.36 is proving the contents of Ex.P.239 and 240 and they are admissible in evidence. The evidence of PW.36 and the contents of Ex.P.239 and 240 are supporting the evidence of the witnesses who have deposed that the signatures are not their signatures and helpful to the court to arrive to a proper conclusion in the matter and to draw inference about the questioned signatures on the documents.
90. Ex.241 is the original FIR, Ex.P.242 is the copy of explanation dated:10/02/2003 of accused No.1 to the AGM, Bank of India, Zonal office. Ex.P.243 to 247 and 250 and 251 are the receipt memos.
91. Ex.P.248 is the letter of Chief Manager, Bank of India, to the Investigating Officer along with three enclosures, furnishing the penalty order passed against accused No.1 and 9, and minor penalty imposed against another employee by name Sri. E.P.Paul, Staff Officer, Bank of India, by the disciplinary authority of accused No.1 and 9. It is an admitted fact that after departmental enquiry by the disciplinary authority against 72 Spl.C.C.150/05 J accused No.1 and 9, the penalty order has been passed, dismissing the accused No.1 from the service of the Bank and reduction in rank of accused No.9 for the charges levelled and proved against them. In the departmental enquiry the allegations pertaining to the accused No.8 Company were also levelled and they were established for imposing penalty.
92. Ex.P.249 is the letter of PW.5 to Investigating Officer, CBI, furnishing information about the genuineness of the correspondence and documents.
93. The accused No.9 got exhibited Ex.D.1 during the cross examination of PW.30. On perusal of the cross- examination of PW.30 he has stated that Kishan Jagridar, Smt. Shamala Jagirdar and Srinivas Jagirdar were not the partners of M/s. Sham Industrial Complex. The contents of Ex.D.1 is not helpful to the defence it is rather proving that deceased accused No.3 was not a partner in the partnership firm named as M/s. Sham Industrial Complex. The evidence proves that deceased accused No.3 has manipulated the documents in the name of M/s. Shyam Industrial Complex, from time to time without having any right, title and possession of property No.60 allotted in favour of M/s. Sham Industrial Complex represented by PW.10 who was one of the partner. The evidence also proves 73 Spl.C.C.150/05 J that by creating the documents deceased accused No.3 has used those documents in the public office, Bank and for creation of mortgage in favour of bank of India, for the Credit Facility sanctioned to accused No.8.
94. In this case as stated earlier there is no dispute regarding opening of current account in the name of accused No.8, loan application submitted by accused No.8 Company through its Directors to Bank of India, Richmond Town Branch, Bengaluru, requesting for Credit Facility and submitting the documents and guarantee particulars of the guarantors. It is also admitted that the proposal for sanction of Credit Facility was sent by accused No.1 who was Head of Branch to the Zonal office for sanction. It is further admitted that based on the proposal the matter was processed in the Zonal office and Credit Facilities were sanctioned to accused No.8 Company subject to fulfillment of pre-disbursement and post-disbursement conditions.
95. Now, I will consider the allegations against each accused and see whether there is evidence to prove the allegations made against them. In this regard, firstly I will consider the allegations forth coming against accused No.1. It is alleged by the prosecution that accused No.1 being Head of 74 Spl.C.C.150/05 J Branch without proper scrutinizing the documents and without inspection of property No.60 recommended to the Zonal office for sanction of loan. In this regard, it is pertinent to note the report of accused No.1 dated:15/11/2001 as per Ex.P6(b). In this report accused No.1 has reported that he inspected property No.60 situated at 1st Main Road, 2nd Stage, Rajajinagar, Industrial Suburb area, Bengalurur-22, which is owned by Mr. Srinivas Jagirdar. He has further reported that in this land measuring 43,560 Sq. feet there is a shed with a carpet area of 32,396 Sq.feet which is let out as go-down and workshop. The location of the land is in a good locality which is not far off from Mahalakshmi layout swimming pool, and ISCKON temple on the West of Chord Road. Further he has reported about the valuation of the valuer and legal opinion of penal advocate about the said property. Further he reported that Mr. Dhananjay Chavan accused No.4 indicated that Mr. Srinivas Gopal Jagirdar owner of the property will be inducted as Director of M/s. Manx Auto Limited, Bengaluru.
96. As per the oral and documentary evidence of the prosecution placed before the court, accused No.3 was not the owner in possession of property No.60. Further, the property was allotted and lease cum sale was executed in favour of M/s.
75 Spl.C.C.150/05 J Sham Industrial Complex, represented by PW.10 on 22/10/1975, possession was delivered and possession certificate was issued. Subsequently, 3/4th of property No.60 was sold by KSFC in public auction for the dues payable by PW.10 and 11 pertaining to M/s. Sham Industrial Complex, during 1984-85 and sale deed was executed during 1988 and possession of 3/4th area was given to the purchaser. The evidence of the prosecution proves that purchaser M/s. Gokuldas Exports, demolished some old structures and constructed four floored new RCC buildings and started garment factory and using the neighbouring open space on the southern side and big board is put to the factory of Hinduja brothers named as "Balaji Finishing House" and doing the garment business. When the 3/4th of property is in the possession of Hinduja brothers and doing garment business where is the question of only one shed and carpet area found in property No.60 during the inspection of accused No.1. It is also proved that remaining 1/4th property in property No.60 has been let out to M/s Weld Craft by PW.10 and 11 during 1976 and deriving rent from the tenant and the tenant was in occupation of the said 1/4th of property. If accused No.1 being the Head of the Branch, really inspected the property as mentioned in Ex.P.6(b) he would not have given his 76 Spl.C.C.150/05 J report saying that he noticed one shed with a carpet area of 32,396 Sq. feet which is let out as go-down and workshop. The prosecution has proved the proceedings as per Ex.P.167 and photographs taken as per Ex.P.166 containing the signatures of the team consisting of accused No.4 and 5, PW.1 and 16 and Investigating Officer. The contents of Ex.P.166 and 167 show that there is a big garment factory established in 3/4th of property No.60 by constructing new building consisting of four floors with big board in the name of "Balaji Finishing House". Under such circumstances, where is the question of carpet area of 32,396 Sq. feet available in property No.60. The evidence of the prosecution negatives, the contention of accused No.1 that he inspected the property No.60 and noticed the things mentioned in his report Ex.P.6(b). The evidence of the prosecution proves that though the nature of the property No.60 was entirely different as on the date of the report Ex.P.6(b) the accused No.1 would not have given such report if he had really inspected the property No.60 as mentioned in his report. The evidence proves that accused No.1 without making inspection of the property No.60, without verifying its position has blindly given his report to the Zonal office along with the proposal recommending for sanction of Credit Facility to accused No.8.
77 Spl.C.C.150/05 J
97. It is admitted about the conditions imposed in the sanction order by the Zonal office for sanction of Credit Facilities in favour of accused No.8 Company. As seen from the sanction order Ex.P.8(a) pre-disbursement and post-disbursement conditions were imposed for fulfillment for the Credit Facilities of accused No.8 Company. As per Ex.P.8(a) disbursement conditions were to obtain equitable mortgage of industrial property of accused No.3, registration of the charge of Bank with ROC and obtained margin money and to ensure payment of tax to the said property and subject to Credit Process Audit and closure of account with Bank of Baroda and limit for consideration of Credit Facilities.
98. The post-disbursement conditions were to complete the equitable mortgage of properties within one month and to comply the other conditions. The accused No.9 conducted CPA-I and there is dispute PW.12 conducted CPA-II. As seen from the evidence of the prosecution the post-disbursement conditions were not fulfilled within the time. The accused No.1 has given his explanation by the post-disbursement conditions were not fulfilled by him as per Ex.P.242.
99. The proposal recommended by accused No.1 was processed in the Zonal Office and Chief Manager deceased V. 78 Spl.C.C.150/05 J Mani put up a note in the Zonal office and based on the recommendation of Chief Manager, deceased V. Mani the concerned authority has sanctioned the loan to accused No. 8. The Chief Manager (Sri. V.Mani) was cited as CW.18 but it is reported that he is expired. Therefore, the prosecution is unable to examine the said officer before the court.
100. The prosecution has relied upon the evidence of PW.1, PW.12, PW.14, PW.17, PW.18, PW.19, PW.27 and PW.32 who are the employees/officers of Bank of India. None of them have deposed before the court that there was any collusion of accused No.1 with accused No.2 to 8 for the Credit Facilities sanctioned in favour of accused No.8. Even they have not deposed that there was any irregularities on the part of accused No.1. Further, they have not deposed that accused No.1 has acted contrary to the circular instructions, regulations of Bank of India. They have also not deposed that accused No.1 has given inspection report without visiting the property or his report is not genuine report.
101. When the accused No.1 has not discharged his duty to see that the post disbursement conditions are not fulfilled, it can be said that it is his administrative lapses and serious dereliction of his duties. Without there being any tangible 79 Spl.C.C.150/05 J evidence it cannot be said that the dereliction of duty of accused No.1 amounts to a criminal offence as alleged by the prosecution. It is pertinent to note that for the lapses committed by accused No.1 as Head of the Branch and dereliction of his duty the action has been taken by the disciplinary authority and imposed major penalty of dismissal from service.
102. It is alleged by the prosecution that accused No.5 being the approved valuer of property on the panel of Bank of India, without inspecting property No.60 by inspecting some other property has given report to the Bank of India, as per Ex.P.31. It is further alleged that accused No.5 was competent to value the property worth Rs.15 Lakhs but in the present case he has exceeded his limit and submitted his report for valuation of Rs.5,22,65,000/-. It is the specific defence of accused No.5 that he visited property No.60 along with deceased accused No.4 and valued the same and given his report to Bank of India as per Ex.P.31.
103. PW.1 has deposed about the valuation report given by accused No.5 as per Ex.P.31 for processing the proposal of accused No.8. PW.16 has deposed about the inspection of property No.60 and valuation report prepared by him as per Ex.P.79(a) on 18/07/2002. Further, he has deposed about the 80 Spl.C.C.150/05 J proceedings conducted in his presence as per Ex.P.167 and 168 and photographs taken as per Ex.P.166 and 169 for property No.60 and 66 respectively. Further, in his evidence PW.37 has deposed about the proceedings conducted by him in the presence of accused No.4,5, PW.1 and 16 as per Ex.P.167 and 168 and photographs as per Ex.P.166 and 169. As seen from the evidence of PW.16 there is no dispute that as per Ex.P.79(a) he has valued property No.60 and noted the measurement and the structure prevailing on that property during 2002. His evidence also proves the proceedings on 15/04/2005 as per Ex.P.167 and 168 in respect of property No.60 and 66. In the light of the evidence of prosecution it is proper to analyze the report of accused No.5. There is no dispute that Ex.P.31 is the valuation report submitted by accused No.5 and bears his signature.
104. It is pertinent to note that introduction mentioned in Ex.P.31 which reads as follows:
INTRODUCTION:
As per the request of Bank of India Manager, Cantonment branch, we met Mr. Srinivas Jagirdar & Mr. Dhanajaya Chavan Director of MANX AUTO LTD & together we inspected the Shed (Land & Shed) belonging to Mr. Srinivas 81 Spl.C.C.150/05 J Jagirdar, sitguated @ #60, 1st main, 2nd stage, Rajajinagar Industrial Suburb Area, Yeshwanthapur, Bangalore-22, Ph-
2264774. We have collected the details given by Mr. Dhananjaya Chavan & the same has been considered.
105. Further, it is pertinent to note that the brief description of the property described in Ex.P.31 which reads as follows:
BRIEF DESCRIPTIOIN OF THE PROPERTY:
Mr. Srinivas Jagirdar owns the Property (Land & Shed), The total area of the land is 43,560 Sq. feet. The total built up area of the Shed is 32,396 Sq. feet (G.F., RCC & AC Sheet ). It is an Industrial property, which is located in a developed Rajajingar Industrial Suburb Area & near to peenya, Mahalakshmi layout & Yeshwanthapur. The property is 01Kms away from Bangalore-Pune High way. The property is 03Kms away from Yeshwanthapura Railway Station. All the infrastructure facilities are available with in the radius of 01Kms.
From the property. This property has been converted as Go- down/work shop & has been rented.
106. On perusal of the evidence of the witnesses none of the witnesses of prosecution have deposed in their evidence 82 Spl.C.C.150/05 J that accused No.5 visited property No.66 and given valuation report in respect of property No.60. In the absence of tangible evidence it is difficult to believe that accused No.5 visited property No.66 and given report in respect of property No.60. The evidence of the witnesses is not consistent, corroborative to each other. The same cannot be presumed by the court when no evidence is forth coming. No evidence is forth coming to show that the valuation report given by accused No.5 as per Ex.P.31 is a false report.
107. Admittedly, accused No.5 is a qualified Engineer who is valuating the properties since 1998 for Bank of India. It is further admitted that in the year 1998 Bank of India authorized him to value the property and to submit report to the extent of having the value of 15-lakhs. It is further admitted that accused No.5 after his appointment as approved valuer for Bank of India valued number of properties and submitted his report every year. It is also admitted that he has valued properties having value of more than 15-Lakhs and given his report. He has produced records during his 313 statement which show that he has valued several properties and submitted report having value of more than 15-Lakhs and Bank of India has accepted all those reports and acted upon those records. When the reports 83 Spl.C.C.150/05 J of accused No.5 for the properties having value of more than 15-Lakhs have been accepted by the Bank of India in the several cases how the valuation report of present case Ex.P.31 can be said beyond his power. The record produced by the accused No.5 show that in this case he has been arrayed as accused and in other cases filed by CBI he has been shown as a witness where his valuation report was exceeding the value of 15-lakhs. There cannot be any hot and cold at the same time in respect of the valuation reports submitted by accused No.5 by valuating the properties. Therefore, there is no substance in the allegation of the prosecution regarding the value of the property made by accused No.5. When the Bank of India has acted upon the reports of accused No.5 it means that impliedly he has been authorized the value property having value of more than 15- lakhs.
108. There is no evidence forth coming from the mouth of the witnesses that the valuation report of accused No.5 Ex.P.31 is a forged document and the same has been forged for the purpose of cheating the Bank of India. No-doubt accused No.,5 has given his valuation report does it amount to an offence under Criminal Law?. No evidence to prove that before or after giving his report there was any collusion between the accused 84 Spl.C.C.150/05 J No.5 and other accused persons of this case. Even if the report given by accused No.5 is not correct it amounts to negligence or professional misconduct on his part, but the same does not constitute an offence under the penal law. It has been mentioned in Ex.P.31 that deceased accused No.3 and 4 took him to the property No.60 and he has valued it. Even if the deceased accused No.3 and 4 taken him to a wrong property it is their deceitful act and accused No.5 was duty bound to verify the property and if he has not properly verified the property Number, measurement and boundaries it is a professional negligence on his part.
109. Coming to the allegations against accused No.2, 7 and 8. It is an admitted fact that accused No.2 is a Managing Director and accused No.7 is the Director of accused No.8 Company. The evidence of the prosecution shows that it is the master mind of deceased accused No.3 and 4 and brain behind for all the deceitful acts involved in this case. None of the witnesses have deposed any evidence showing the involvement of accused No.2 and 7. Further, there is no evidence forth coming against accused No.8 Company to make it responsible for the allegations made. No-doubt accused No.2 as a Managing Director has signed on the documents and no role played by him 85 Spl.C.C.150/05 J in the alleged fraudulent creation of documents and offering a security for the Credit Facilities of accused No.8 is forth coming in any manner. The accused No.7 as a Director of accused No.8 has given his personal guarantee and no evidence to show his any illegal acts in the sanction and offering of property of accused No.3 as security for the loan transaction. Admittedly, accused No.8 is a company and for the business of accused No.8 the loan was applied and no evidence is forth coming to show that the company acted illegally and involved in any criminal activities. It is accused No.3 and 4 who have played active role for submitting the application and disbursement of the amount in the name of accused No.8. Without there being any evidence forth coming it cannot be said that accused No.2,7 and 8 have played role as alleged by the prosecution which is punishable under Criminal law.
110. Lastly, coming to the allegations against accused No.9. It is an admitted fact that he was Deputy Manager (Credit) Bank of India, Richmond Town Branch, Bengaluru and working at the time of the present transactions of accused No.8. The learned public prosecution for CBI fairly submitted that no case is established against accused No.9. As seen from the evidence accused No.9 was not having any independent powers.
86 Spl.C.C.150/05 J Whatever he has acted and made payment have been done as per the instructions of Head of Branch, accused No.1. When the accused No.9 acted as per the instructions of accused No.1, it cannot be said that he has exceeded his authority in discharge of his duty.
111. None of the witnesses examined by the prosecution have spoken any evidence against accused No.9 stating that he has committed wrong in the transactions done by him for passing of the cheques. No cogent evidence is forth coming to make the accused No.9 responsible for the allegations made against him. As per the evidence accused No.1 was required to submit report to the Zonal office for ratification of over drawls within the time but he has failed in his duty. Further, the evidence shows that after 5-6 months he has reported the matter to the Zonal office at that time the Zonal office refused to ratify the over drawings allowed in the account of accused No.8. As per the circular of the bank the over drawls have to be reported to the Zonal office immediately and under such circumstances, if there is no rejection from the Zonal office received within the stipulated time, then the over drawls are deemed to be ratified by the Zonal office. In this case, it was the duty of accused No.1 to take immediate action for reporting 87 Spl.C.C.150/05 J and to obtain ratification from the Zonal office, but he has failed in his duty for which he has been already severely punished on the report of departmental enquiry. As stated earlier, the dereliction of duty cannot be termed as an offence under the Criminal Law.
112. The allegation of accused No.9 passing some cheques without the signature of second officer, during the presence of accused No.1 and even after refusal of ratification from the Zonal office is a dereliction of duty on his part. It is the duty of the Branch Head to authorize the payments and when accused No.9 acted as per the instructions of Branch Head it cannot be said he was responsible for over drawls.
113. The learned public prosecutor submitted in his written argument that the allegation against accused No.9 is that he had allowed over draft by passing the cheques through which the said over draft was drawn. But it was confirmed by accused No.1, who was the Superior Officer to accused No.9 (Ex.P.103 dated:20/12/2002). More over as such, the irregularity amounting to criminal office, if any gets validated as per the ruling of the Hon'ble Supreme Court. Rather, such acts of accused No.9 are automatically attracted to be ascribed to accused No.1. He further submitted that according to his firm 88 Spl.C.C.150/05 J conviction, there is no case against accused No.9 N.L.Jagirdar who was never an independent decision taking authority in the disbursal of loan accounts.
114. In support of his oral and written arguments the learned public prosecutor firstly he relied on the decision reported in (1973) 2 Supreme Court Cases 543, in the case of Sri Parmeshwari Prasad Gupta Vs- The Union of India, wherein the Hon'ble Supreme Court held that:
"Ratification would always relate back to the date of the Act ratified and so it must be held that the services of the appellant were validly terminated by the Chairman".
115. Secondly, the Learned Public Prosecutor relied upon the decision reported in 1996 AIR 114, 1995 SCC Supl.(3) 456, in the case of U.P.Evan Vikas Parishad and Another - Vs- Friends Coop.Housing Society Ltd and Another, wherein the Hon'ble Supreme Court held that :
"Once the approval is given, all the previous acts done or actions taken in anticipation of the approval gets validated and the publications made under the Act thereby becomes valid"
116. Thirdly, the Learned Public Prosecutor relied upon the decision reported in (2006) 5 Supreme Court Cases 96, in the case of Maharashtra State Mining Corporation Vs-
89 Spl.C.C.150/05 J Sunil, S/o.Pundika Rao Pathak, wherein the Hon'ble Supreme Court held that :
"Ratification by definition means the making valid of an act already done., The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely, "a subsequent ratification of an act is equivalent to a prior authority to perform such act".
Therefore ratification assumes an invalid act which is retrospectively validated".
117. Fourthly, the Learned Public Prosecutor relied upon the decision reported in (2003) 4 Supreme Court Cases 239, in the case of High Court Judicature for Rajasthan Vs- P.P.Singh and Another, wherein the Hon'ble Supreme Court held that :
"Even in a case where the initial action is illegal, the same can be ratified by a body competent thereof".
It is further held that "when an approval is required, an action holds good only if it is disapproved, it loses its force. Ratification would always relate back to the date of the act ratified"
118. Fifthly, the Learned Public Prosecutor has relied on the decision relied on in 1988 Crl.LJ 1364, in the case of Raghava Nadar and ors Vs- The state ,wherein the Hon'ble Kerala High Court held as follows:
"The precedents are quoted because the practice has got a peculiar fascination. If a 90 Spl.C.C.150/05 J judge feels to accept the precedent quoted, it gives him a way of escape. It relieves him of the difficulty to think for himself or even decide for himself. He feels that the matters to be considered have already been decided by the previo0us authority.
Anyhow, precedent is law only in regard to certain binding principles. In regard to the facts decided in the precedent it will have its own peculiarities and we have to remember that facts "can never be alike in any two cases, however alike they may seem".
119. Sixthly, the Learned Public Prosecutor has relied upon the decision reported in 1987 AIR Pg.1073, in the case of Ambica Quarry Works and Anr. Vs- State of Gujarat and Ors-wherein the Hon'ble Supreme Court has held that-
"Interpretation of statues--Interpretation must sub- serve and help implement intention of Act. Expression may when not construed as 'shall' Constitution of India:' Article 141--Precedent -Ratio of a decision to be understood in the background of facts of the case"
120. When it is admitted that the acts of accused No.9 were ratified by accused No.1 as a Branch Head and in view of the Principles relied upon by the learned public prosecutor it cannot be said that accused No.9 has exceeded his powers and 91 Spl.C.C.150/05 J committed any serious irregularities in disbursement of the funds in favour of accused No.8 Company. As per the evidence for dereliction of duty accused No.9 has been already punished by the disciplinary authority by doing reduction of basic pay by five stages. This fact goes to show that no major penalty of dismissal has been ordered against him. Looking to the gravity of the charges the increments have been cut and the service of accused No.9 has been continued in the Bank of India. That is one of the aspect court has to take into consideration while judging the role and allegations against accused No.9.
121. Now, I will consider whether the prosecution is able to establish the ingredients of the offences alleged against accused No.1,2,5, 7 to 9. Firstly, I will take the offences under the Indian Penal Code for the offence of Criminal Conspiracy. The evidence of the prosecution proves that it is the master mind of deceased accused No.3 and 4 for the entire deceitful acts to cheat the Bank of India for getting the Credit Facilities to accused No.8. None of the witnesses have deposed that there was any collusion of accused No.1 with accused No.2 to 5, 7 to 9. Further no evidence is forth coming against accused No.2,5,7 to 9 to show their conspiracy in the transaction. To constitute an offence of criminal conspiracy the prosecution has to establish that there is an 92 Spl.C.C.150/05 J agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. In the offence of criminal conspiracy direct evidence to prove conspiracy is rarely available. In the present case, neither there is a direct evidence nor circumstantial evidence to establish the criminal conspiracy of accused No.1,2,5,7 to 9 along with deceased No.3 and 4.
122. In this regard the learned counsel for accused No.5 relied upon the decision reported in (2012) 9 Supreme Court Cases 512, in the case of Central Bureau of Investigation, Hyderbad, Vs. K. Narayan Rao wherein it has been held as follows:
" E-Penal Code, 1860,-Ss.120A and 120B-Criminal conspiracy -Elements of -Basis for extending criminal liability to co-conspirators-Held, essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both-Direct evidence to prove conspiracy is rarely available-accordingly, the circumstances proved before and after the occurrence have to be considered to decide about complicity of the accused- Offence of conspiracy cannot be deemed to have been established on mere suspicion and 93 Spl.C.C.150/05 J surmises or inference not supported by cogent and acceptable evidence Held; the ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence".
In the light of the Principles laid down by the Hon'ble Supreme Court in the above case if the evidence of the prosecution of the present case is appreciated the ingredients of offence of criminal conspiracy are not established in the true spirit of the law.
123. Secondly, I will consider the offence of cheating and dis-honestly inducing delivery or property. In the present case none of the witnesses examined by the prosecution have deposed that accused No.1,2,5,7 to 9 have cheated the Bank of India. As 94 Spl.C.C.150/05 J per the evidence it is forth coming that it is all deceitful act of deceased accused No.3 and 4 from the inception of the transaction to cheat the Bank of India and in that process accused No.1 and 9 have failed in their duty.
124. The learned public prosecution argued that the ingredients of the offence Under Section 420 of IPC are established. On the other hand, the learned defence counsel for the respective accused argued that no evidence is forth coming to prove the ingredients of the said offence and in the absence of evidence the offence cannot be said to have been established. Further, argued that there must be legal evidence of the prosecution to prove the offence beyond all reasonable doubt and lack of evidence is not sufficient to prove the said offence.
125. In this regard, the Learned Counsel for Accused No.1 firstly relied upon the decision reported in 1980 Supreme Court Cases (CRI)546-in the case of Abdulla Mohammed Pagarkar V/s State (Union Territory of Goa, Daman and Diu) and Moreshwar hari mahatma V/s State (Union Territory of Goa, Daman and Diu)- wherein it is held as-
"Penal Code, 1860-Sections 420, 468, 471 and 120B-Prevention of Corruption Act, 1947-Section 5(1) (d)-mere disregard of relevant provisions of General Financial Rules as well as ordinary norms 95 Spl.C.C.150/05 J of procedural behaviour of government officials and contractors, in absence of showing beyond reasonable doubt about the guilt, may raise strong suspicion against the accused but would not constitute offences under-General Financial Rules, Rules 133 and 141 Evidence Act, 1872-Section 3-'Proved'-Suspicion, however strong cannot be a substitute for proof- Evidence Act 1872-Section 102-Onus proof of existence of every ingredient of charge always rests on the prosecution and never shifts on the accused".
126. Secondly, the Learned Counsel for the accused relied on the decision reported in 1987 CRI.L.J.222, in the case of T.R.Arya, Vs- State of Punjab-wherein it is held as :
"Penal Code(1860)Ss.420, 24 and 25-Negligence of bank officer in performance of duty resulting in loss to bank- Negligence and cheating do not go together -officer charged with negligence cannot charged of cheating"
127. Thirdly, the Learned Counsel for the accused relied on the decision reported in 2002 Supreme Court Cases (Cri) 129, in the case of S.W.Palanitkar and others Vs- State of Bihar and Another -wherein it is held as :
96 Spl.C.C.150/05 J "D-Penal Code(1860)Ss.420 and 415-cheating -
Stage at which fraudulent or dishonest intention should exist in order to make out the offence of cheating-held, such intention must be shown to exist at the time of making of the inducement- Otherwise, mere failure to keep up promise subsequently , held, cannot be presumed as an act leading to cheating".
128. On the other hand, the Learned Counsel for the accused No.5 relied on the decision reported in (2012) 9 Supreme Court Cases 512, in the case of Central Bureau of Investigation, Hyderabad- Vs- K.Narayan Rao -wherein it is held as follows :
"A-Advocates- Duties- Legal opinion rendered by advocate- Negligent or improper legal advice or opinion-Criminal liability of, when may be fastened- Criminal conspiracy -Need for evidence to show that lawyer in question aided or abetted the other conspirators-Held, although a lawyer owes an unremitting loyalty to clients interest, however, merely because his legal opinion may not be acceptable, he cannot be fastened with criminal prosecution in absence of tangible evidence that he aided or abetted other conspirators-At the most, he may be liable for gross negligence or professional 97 Spl.C.C.150/05 J misconduct if established by evidence-In present case, there being no such tangible evidence against respondent, criminal proceedings against him, held, rightly quashed-Advocates Act, 1961, Ss.35 and 36.
B-Criminal Procedure, Code-1973-S.482-Inherent powers of High Court-Quashed in cases of
economic offences/commercial transactions, breach of trust, cheating -When justified -Conspiracy to defraud bank by improper sanctioning and disbursement of housing loans- Panel Advocate of Bank sought to be implicated in said conspiracy on basis of legal advice given by him i.e alleged false opinion about ownership of properties against which loans were given-absence of evidence of abetting or aiding of conspiracy to defraud bank-
Respondent's name not mentioned in FIR but charge sheet showing him as an accused for giving false legal opinion as bank's panel Advocate, but statement of witnesses not making specific reference to respondents role in the conspiracy-Held liability of advocate who gave a legal opinion would arise only when such advocate could be shown to have been an active participant in the plan or conspiracy o defraud the bank-
C- Tort Law-Negligence-Professional negligence- Liability for-When attracted -Standard of requisite skill applicable-Held, a professional's only assurance which can be given by implication is that (1) he is 98 Spl.C.C.150/05 J possessed of the requisite skill in that branch of profession which he is practicing and (2) while undertaking performance of the task entrusted to him, he would exercise his skill with reasonable competence-A professional may thus be held liable for negligence on one of the two findings viz. either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess-consumer Protection Act, 1986, Ss.2(1)(o) and (g).
129. Secondly, the Learned Counsel for the accused No.5 relied on the decision reported in (2005) 6 Supreme Court Cases in the case of Jacob Mathew Vs. State of Punjab - wherein in para No.18, it is held as follows :
"Negligence by Professionals-
In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that 99 Spl.C.C.150/05 J the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch or profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In 100 Spl.C.C.150/05 J Michael Hyde and Associates Vs-J.D.Williams & Co.Ltd.Sedley, L.J said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable".
It is further held by the Hon'ble Supreme Court in the above decision that:
"Therefore the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the bank. In the given case, there is no evidence to prove that A-5 was abetting or aiding the original conspirators. However, it is beyond doubt that a lawyer owes an "unremitting loyalty" to the interests of the client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable , he cannot be mulcted with the criminal prosecution, particularly , in the absence of tangible evidence that he associated with other conspirators. At the most, he maybe liable for gross negligence or professional misconduct, if it is established by acceptable evidence, and cannot be charged for the offence Under Sections 420 and 109 of IPC along with other 101 Spl.C.C.150/05 J conspirators without proper and acceptable link between them. It is further made clear that if there is a link or evidence to connect him with other conspirators for causing loss to the institution, undoubtedly the prosecuting authorities are entitled to proceed under criminal prosecution. Such tangible materials are lacking in the case of the respondent herein".
130. Thirdly, the Learned Counsel for Accused No.5 produced the decision rendered by the Hon'ble Supreme Court in Appeal (Cri) 52-105 of 1993 - in the case of C.Chenga Reddy and ors Vs- State of Andhra Pradesh- wherein it is held as follows:
"The conclusion arrived at by the courts below that the official appellants did not follow the codal provisions and that they have committed gross financial irregularities and administrative lapses in the matter of clearance of the prickly pier jungle under the Kudimaramath Rules and other relevant provisions cannot be faulted with but nonetheless, the same cannot be construed as "incriminating circumstances" to fasten criminal liability on the appellants.
In a case based on circumstantial evidence, the settled law is that the circumstances from which the 102 Spl.C.C.150/05 J conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case, the Courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.
However, as we have agreed with the findings recorded by both the Courts below with regard to the violation of the codal provisions and administrative lapses by the department officials, it appears to us that a departmental enquiry may be justified but in this fact situation".
It is further held that administrative lapses cannot constitute as criminal offence.
131. Fourthly, the Learned Counsel for Accused No.5 produced the decision rendered by the Hon'ble High Court of Madras in Crl.R.C.No.1063 of 2008, in the case of L.N.Rajagopalan Vs- State by Additional Superintendent of Police wherein it is held as follows:
"Firstly, the Valuer is not associated with the business transaction when the application for loan is submitted by the borrower. Therefore, there is no 103 Spl.C.C.150/05 J occasion for the valuer to see the persons who appear before the Bank. Some of the properties might have been Government properties. It is not the duty of the Valuer to go to the Registrar's Office to verify whether the lands belong to the Government or private individuals".
132. There is no evidence to prove that accused No.5 associated with deceased accused No.3 and 4 to cheat the Bank of India. Merely because his valuation report was alleged to be wrong. He cannot be mulcted with the criminal prosecution. Therefore, the prosecution has failed to prove the ingredients of the offence of cheating and dis-honestly inducing delivery or property.
133. Thirdly, I will consider where the offence of forgery of valuable security or will etc., and forgery for the purpose of cheating alleged against accused No.5 have been established. It is an admitted fact that valuation report Ex.P.31 is the opinion of accused No.5 based on his technical knowledge. Simply because it is alleged that his report is wrong, it cannot be said that the ingredients of offences Under Section 467 and 468 have been established. Therefore, there is no evidence to establish these offences against accused No.5.
104 Spl.C.C.150/05 J
134. Fourthly, I will consider the offences alleged against accused No.1 and 9 for the criminal misconduct under the Prevention of Corruption Act. As seen from the evidence of the prosecution witnesses none of them have deposed that accused No.1 and 9 being public servants abused their official position and thereby obtained pecuniary advantage for themselves or for any other person. There is no evidence forth coming that accused No.1 and 9 have obtained any pecuniary advantage from the other accused to show any official favour to them.
135. The learned counsel for the accused No.1 vehemently argued that there is no evidence to prove any demand and obtaining of illegal gratification to constitute an offence of criminal misconduct. He further argued that the witnesses examined by the prosecution are all hearsay witnesses and hearsay evidence cannot be considered as evidence in a criminal case.
136. In support of his argument he firstly, relied upon the decision reported in 2005 AIR SCW 6275 in the case of State Andhra Pradesh Vs. K. Narasimhachari -wherein it is held as:
"B-Prevention of Corruption Act(49 of 1988) Ss.7, 13(1)(d)- Allegation of demand of bribe-Accused merely a recommending authority and not the 105 Spl.C.C.150/05 J valuation or the final authority-Accused also not a outward clerk for issuance of property valuation certificate-Also said certificate was already forwarded and signed by final authority before alleged demand of bribe by accused-Aforesaid circumstances create, suspicion about demand of bribe-Accused's acquittal was proper".
137. Secondly, the Learned Counsel for the accused No.1 relied on the decision reported in 2008 AIR SCW 3557 in the case of S. Mohan Vs. CBI -wherein it is held as follows :
"Moreso when neither Bank, A nor subsidiary Company had filed complaint -
Entire transaction being legal conviction of bank official for corruption-Also liable to be set aside"
138. Thirdly, the Learned Counsel for the accused No.1 relied on the decision reported in 1996 SCC (Criminal) 102, in the case of Special Police Establishment Vs- D.Krishnamurthy -wherein it is held as follows :
"B-Prevention of Corruption Act 1947-S.5(1)(d)- Ingredients -where abuse of position as a public servant is lacking mere obtaining valuable thing or pecuniary advantage by some means, be they illegal or corrupt, not enough"
106 Spl.C.C.150/05 J
139. Fourthly, the Learned Counsel for the accused No.1 relied on the decision reported in 2015 SCC Online SC 814, in the case of P.Sathyanarayan Murthy Vs- The Dist.Inspector of Police and Anr-wherein it is held as follows:
"In the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any -valuable thing or pecuniary advantage cannot be held to be proved-thus conviction of the appellant U/s13(1)(d)(i) and (ii) r/w 13(2) cannot be sustained-Acquittal"
140. On the other hand, the learned public prosecutor argued that the loan documents which were dealt by accused No.1 as a Branch Head and accused No.9 as Deputy Manager, only the succeeding officers and the officers of Zonal Office can speak about those documents and in the present case the officers of Bank of India, Richmond Town Branch, have deposed and the Chief Manager, V. Mani, who was cited as a witness from Zonal office is expired and evidence of the prosecution cannot be said as hearsay evidence.
141. In support of his arguments he relied upon the decision reported in 2011 AIR SCW 688- in the case of Kalyan 107 Spl.C.C.150/05 J Kumar Gogoi Vs-Ashutosh Agnihotri and another -wherein the Hon'ble Supreme Court has held that-
(B) Evidence Act (1 of 1872) Ss.3,60-Hearsay evidence-Evidentiary value-Stated.
Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross examination. The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than a witness in giving evidence and a statement contained or recorded in any book, documents or record whatever proof of which is not admitted on other grounds are deemed to be irrelevant for purpose of proving the truth of matter stated. An assertion other than one made by a person while giving oral evidence in proceedings is inadmissible as evidence of any fact asserted.
If the person giving hearsay evidence is concerned, he has a line of escape by saying "I do not know, but so and so told me" (b) truth is diluted and diminished with each repetition and (c) if permitted 108 Spl.C.C.150/05 J gives ample scope for playing fraud by saying "someone told me that". It would be attaching importance to false rumor flying from one foul lip to another, Thus statement of witness based on information received from others is inadmissible".
142. In the present case there is no evidence to establish the alleged criminal misconduct of accused No.1. The prosecution has admitted that there is no case against accused No.9. Therefore, the offence of criminal misconduct alleged against the accused No.1 and 9 is also not established.
143. In the present case the Credit Facility was sought during Oct. 2001 and the same was sanctioned during Nov.2001. Thereafter the Credit Facility has been disbursed from time to time in favour of accused No.8. After the dismissal of accused No.1 from his service the CBI has registered a case on the source of information on 17/11/2004. It is the main contention of accused that there is no complaint from the Bank of India stating that the accused have conspired, cheated and manipulated the records and accused No.1 and 9 have committed any criminal misconduct. It is further alleged that in the absence of any complaint from the bank of India the case registered by the CBI is without any allegation against the accused from the Bank. Therefore, the very registration of case 109 Spl.C.C.150/05 J by the CBI is not proper. It is the contention of the prosecution that the CBI has got authority to register a case on the source of information to protect the public funds and to investigate the matter and to submit final report before the court.
144. In this regard, firstly, the Learned Public Prosecutor relied upon the Order of the Hon'ble Supreme Court in Crl. Appeal No. 456 of 2008, in the case of State Represented by Inspector of Police, Chennai Vs- N.S.Gnaneswaran, wherein the Hon'ble Supreme Court held that :
" The said observations are made in the above decisions on the basis of the clarification made by this Court regarding the provisions of Section 154, 156 and 157, Cr,P.C in the case of State of U.P vs. Bhagwant Kishore Joshi (supra) upon which rightly placed reliance in justification of the procedure followed by 'CBI regarding the registration of FIR the same is traceable to the procedure laid down in the Crime Manual 2005, which has been prepared by the CBI for registration of cases under the Delhi Special Police Establishment Act. Therefore, non compliance of the mandatory provisions under Section 154, Cr.P.C if the case is registered on the basis of the information received suo-motu after specifying that the information reveals prima-facie cognizable offence against the respondent herein and found that the matter is fit for investigation to be taken by the appellant therein, in not following the provisions of Section 154 does not vitiate the 110 Spl.C.C.150/05 J registration of FIR and further proceedings in the matter of registration. Therefore, the request made by the appellant to set aside the impugned order specifying the aforesaid procedure laid down under the Manual and also the decision of this Court referred to (supra) and not complying with the mandatory procedure under Section 154 does not vitiate the registration of FIR against the respondent and further there is no need for this Court to await the larger Bench decision on the issue in the case in L alitha Kumari Vs- State of U.P.(supra.)".
145. Secondly, the Learned Public Prosecutor relied upon the Order of the Hon'ble Supreme Court in Crl. Appeal No. 76 of 2004, in the case of R.Venkatakrishnan Vs- Central Bureau of Investigation, wherein the Hon'ble Supreme Court held that :
" Non Institution of Departmental proceedings-In this regard, it must be emphasized that the submission of the learned Counsel that the Banks have not initiated any proceedings and suffered loss and this the judgment of conviction and sentence of criminal breach of trust is wholly unsustainable cannot be accepted for more than one reason.
It is not the Law that complaint petition under all circumstances must be made by the Banks and Financial Institutions whose money had been the subject matter of offence,. It is also not the Law 111 Spl.C.C.150/05 J that suffering loss is a sine qua non for recording a judgment of conviction. It is now trite that criminal law can be set in motion by anybody. The prosecution was initiated on the basis of the information received by the Central Bureau of Investigation . It would entitled to do so not only in regard to its statutory powers contained in the Delhi Special Police Act but it was also entitled to take cognizance in terms of the report submitted by ' Janakiraman Committee'. The money involved in the transfer is public money belonging to Public Sector Banks.
It is for the same reason, the submission that as nobody ultimately suffered any loss, an offence under Section 409 of Indian Penal Code was not made out, cannot be accepted. A bank or Financial Institution may not suffer ultimate loss but if the money has been allowed to be used by another person illegally for illegal purpose, the ingredients of Section 405 of the Indian Penal Code would get attracted. A case involving temporary embezzlement also attracts the ingredients of Section 405 of the Indian Penal Code".
146. As per the provisions of Section 154 Cr.P.C. anybody can set the law in motion by filing complaint. The Hon'ble Supreme Court in R.Venkata Krishnan referred above held that:
112 Spl.C.C.150/05 J "It is now trite that criminal law can be set in motion by anybody". Further, the CBI is competent to register the case on the source of information and to investigate the matter. In the same decision the Hon'ble Supreme Court held that:"The prosecution was initiated on the basis of the information received by the Central Bureau of Investigation. It would entitled to do so not only in regard to its statutory powers contained in the Delhi Special Police Act but it was also entitled to take cognizance in terms of the report submitted by 'Janakiraman Committee'. The money involved in the transfer is public money belonging to Public Sector Banks". Therefore, in the present case the case registered by CBI on the source of information and the investigation done cannot be said as illegal.
147. However, in S. Mohan case referred above the Hon'ble Supreme Court held that in such cases complaint of the Bank is required. In the present case also though it is alleged that huge loss has been caused to the Bank of India by the alleged acts of accused, the Bank of India through its any officers has not come forward with the complaint alleging the loss to their Bank. Though the CBI registered a case and investigated the matter, but the evidence collected is lacking to link the accused to the alleged offences.
113 Spl.C.C.150/05 J
148. Therefore, the prosecution has failed to prove the alleged offences against accused No.1,2,5,7 to 9 beyond all reasonable doubt. Hence, I answer point No.1 to 5 in the Negative.
149. Point No.6: In view of my findings to the above points, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C., Accused No.1,2,5,7 to 9 are hereby acquitted for the offence punishable u/s 120-B, 420, 467 and 468 IPC.
Further, accused No.1 and 9 are acquitted for the offence u/Sec. 13(2) r/w sec. 13(1)(d) of Prevention of Corruption Act, 1988.
The bail bonds and the surety bonds of accused No.1,2,5,7 to 9 executed for the appearance and trial of this case before this court are hereby cancelled.
(Dictated to the Judgment Writer, transcribed by him, revised by me personally and incorporated additional paragraphs directly on computer, corrected and then pronounced by me in the Open Court on this the 16th day of February, 2016) (BHEEMANAGOUDA K. NAIK) XXI Addl.City Civil and Sessions Judge And Prl. Special Judge for CBI Cases, Bengaluru City.
114 Spl.C.C.150/05 J ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW-1: S. Shekhar PW-2: Jeetendra Singh PW-3: G.V. Chandrashekaraiah PW-4: D. Narasimha Murthy PW-5: H. Gujjarappa PW-6: Hutchaiah PW-7: H. Devaraj PW-8: G.S. Nagaraj PW-9: M. Satishchandra PW-10: Kishan Jagirdar PW-11: Smt. Shyamala Jagirdar PW-12: K.S. Sridharan PW-13: Barbara Chavan PW-14: G. Sridhar PW-15: Shivaramaiah PW-16: N.G. Sheshagiri Rao PW-17: Krishna Mallya PW-18: E.P. Paul PW-19: Smt. Agnes L. Joseph PW-20: P.R. Anjana Reddy PW-21: M. Raja PW-22: Rajendra J. Hinduja PW-23: H.R. Katti PW.24: S. Narayana Murthy PW.25: S.B. Shiva Kumar PW.26: V.L. Somappa PW.27: Banu Nagarajan PW.28: D. Ganesh PW.29: P.V. Krishna Murthy PW.30: D. Ramakrishna PW.31: M. Gundu Rao PW.32: P.R. Kalyana Raman PW.33: K. Hari Om Prakash PW.34: C.L. George PW.35: Capt. R.K. Sharma PW.36: R.B. Bhosale PW.37: K.M. Ramesh 115 Spl.C.C.150/05 J LIST OF WITNESS EXAMINED FOR DEFENCE:
- NIL -
LIST OF DOCUMENTS EXHIBITED FOR THE PROSECUTION:
Ex.P.1: Bank of India Current Account application form in respect of M/s. Manx Auto Ltd., 4 sheets Ex.P1(a): Signature of PW.17 Ex.P.2: Application Form for credit facilities along with enclosures - 29 sheets Ex.P2(a): Borrower/Guarantor's profile of A2 at page 19 Ex.P2(b): Borrower/Guarantor's profile of Kousalya Bai at page 19 Ex.P2(c): Borrower/Guarantor's profile of T.N. Ramesh at page 22 Ex.P2(d): Borrower/Guarantor's profile of Syed Khadar Abdulla at page 23 Ex.P2(e): Borrower/Guarantor's profile of Smt. Barbara Chavan at page 24 Ex.P2(f): Borrower/Guarantor's profile of A4 at page 26 Ex.P2(g): Borrower/Guarantor's profile of A34 at page 27 Ex.P.3: Copy of FIAT Dealer Agreement dated 9.1.1999 (35 sheets) Ex.P.4: Letter dt. 18.12.2001 for credit facility of Bank Guarantee - 2 sheets Ex.P.5: Memorandum of Articles of Association of M/s. Manx Motors - 1 Booklet Ex.P.6: Carbon copy of pre-sanction Inspection Report dt.
18.10.2001 - 2 sheets Ex.P.6(a): Carbon copy of Inspection Report - 1 sheet Ex.P.6(b): Certified copy of Property Inspection Report Ex.P.7: Bank of India Carbon copy of letter dt. 30.10.2001 to Zonal Manager - 2 sheets Ex.P.7(a): CC of Memorandum of Sanction Ex.P.7(b): Bank of India letter dt. 18.12.2001 - 2 sheets Ex.P.7(c): Certified copy of Bank of India Letter dt. 19.11.2001
- 1 sheets Ex.P.8: Bank of India Letter dated 26.11.2001 - 11 sheets Ex.P8(a): Sanction Order - 10 sheets Ex.P.9: Bank of India Departmental recommendation letter 116 Spl.C.C.150/05 J dt. 27.12.2001 - 5 sheets Ex.P.10: Extracts of minutes of M/s. Manx Auto - 1 sheet Ex.P.10(a): Carbon copy of Bank of India letter dt. 27.11.2001 -
2 sheets Ex.P.11: Letter dated 28.12.2001 addressed to Bank of India
- 1 sheet Ex.P.12: M/s. Manx Auto Letter dated 28.12.2001 addressed to Bank of India - 1 sheet Ex.P.13: M/s. Manx Auto Letter addressed to Bank of India -
1 sheet Ex.P.14: KSIIDC Letter dated 27.12.2001 - 1 sheet Ex.P.15: Legal Opinion dt. 26.12.2001 given by Sri. V.L. Somappa - 4 sheets Ex.P.16: Copy of Lease cum Sale agreement dt. 22.10.1975 3 sheets Ex.P.17: Sale Deed dt. 31.08.1998 - 7 sheets Ex.P.17(a) to (g): Signature of PW.2 Ex.P.17(h) to (n): Initials of PW.3 Ex.P.17(o): Signature of PW.3 Ex.P.17(p) to (s): Signature of PW.4 Ex.P.17(t): Signature of PW.5 Ex.P.17(v): Signature of PW.31 Ex.P.18: Possession Certificate Memo dated 20.10.1975 Ex.P.19: Possession Certificate Memo dated 07.01.1974 Ex.P.20: E.C. dt. 27.09.1999 issued by SRO, Rajaji Nagar, Bangalore - 1 sheet Ex.P.20(a & b): EC dt. 22.12.2001 of SRO, Rajaji Nagar, Bangalore - 1 sheet Ex.P20(a)(a): Signature of PW.6 Ex.P20(a)(a)(a): Relevant dt. (Q-44) Ex.P20(a)(a)(a)(a): Relevant writing dt. (Q-45) Ex.P20(a)(a)(a)(a)(a): Relevant dt. (Q-44) Ex.P20(a)(a)(a)(a)(a)(a): Signature of PW.7 Ex.P20(b): EC dt. 20.12.2001 of SRO, Rajaji Nagar, Bangalore Ex.P20(b)(b): Signature of PW.6 Ex.P20(c): EC dt. 04.07.2002 of SRO, Rajaji Nagar, Bangalore Ex.P20(c-a): Signature of PW.9 Ex.P.21: Lease cum sale agreement etc., - 12 sheets Ex.P.21(a): Possession Certificate dt. 20.10.1975 Ex.P.21(b): Copy of Sale deed dt. 31.08.1998 Ex.P.21(c): BDA letter dt. 31.08.1998 Ex.P.22: Acknowledgment of registration of firms Ex.P.23: Partnership deed dt. 20.11.1980 Ex.P.24: Dissolution of Partnership Deed dt. 31.03.1998 117 Spl.C.C.150/05 J Ex.P.25: Affidavit dt. 15.12.2001 Ex.P.26: Two Property Tax challans - 2 sheets Ex.P.27: KSFC Letter dated 30.09.1987 Ex.P.28: Two letters dated 31.03.1998 Ex.P.29: Weldcraft Pvt. Ltd., letter dt. 18.04.2005 with copy of judgment (36 sheets) Ex.P.29(a): Signature of PW.34 Ex.P30: BDA letter dated 14.08.2003 to Bank of India Ex.P31: Valuation Report dated 14.11.2001 issued by A5 (5 sheets) Ex.P32: Copy of Letter dated 10.07.2003 of A5 to Bank of India - 2 sheets Ex.P33: Letter dated 21.11.2001 of Bank of Baroda to Bank of India - 1 sheet Ex.P34: Bank of Baroda Letter dated 21.11.2001 to Bank of India Ex.P35: Bank of Baroda letter dt. 11.12.2001 to Bank of India Ex.P36: KSFC Letter dt. 26.12.2001 Ex.P.37: Letter of authority dated 28.12.2001 from Manx Auto to Bank of India - 3 sheets Ex.P.38: Letter of Guarantee of M/s Manx Auto - 3 sheets Ex.P.39: Letter of Guarantee (LG 13) dated 28.12.2001 of M/s. Manx Auto to Bank of India - 2 sheets Ex.P.40: Letter of Guarantee (LG 15) dated 28. 12.2001 of M/s. Manx Auto to Bank of India Ex.P.40(a):Signatures of PW.13 (I page) Ex.P.40(b):Signatures of PW.13 (Last page) Ex.P.41: Joint & Several Guarantee Letter (O.D.174) executed in favour of Bank - 5 sheets Ex.P.41(a):Signatures of PW.13 I page Ex.P.41(b):Signatures of PW.13 page-4 Ex.P.41(c):Signatures of PW.13 last page Ex.P.41(d):Signatures of A4 Ex.P.42: Inland B.G. dt. 28.12.01 Ex.P.43: DPN for Rs.100 lakhs dt. 28.12.2001 Ex.P.44: Agreement of Hypothecation dt. 28.12.2001 Ex.P.45: Continuing security for D.P. Note dt. 28.12.2001 Ex.P.46: Undertaking Letter dt. 28.12.2001 Ex.P.46(a): Signature of A4 in 1st page Ex.P.46(b): Signature of PW.13 in 1st page Ex.P.46(c): Signature of A4 in last page Ex.P.46(d): Signature of PW.13 in last page Ex.P.47: Joint & Several Guarantee letter dt. 28.12.2001 118 Spl.C.C.150/05 J Ex.P.47(a): Signature of A4 in 1st page Ex.P.47(b): Signature of PW.13 in 1st page Ex.P.47(c): Signature of A4 in last page Ex.P.47(d): Signature of PW.13 in last page Ex.P.48: Letter of acknowledgment of debts & security dt. 20.09.2002 Ex.P.48(a): Signature of A4 Ex.P.49: DPN for Rs.50 lakhs dt. 28.12.2001 Ex.P.50: Security letter dt. 28.12.2001 (L-447) - 2 sheets Ex.P.51: Form No.L-514 various undertaking letter in favour of Bank - 3 sheets Ex.P.51(a): Signature of A4 in 1st page Ex.P.51(b): Signature of PW.13 in 1st page Ex.P.51(c): Signature of A4 in last page Ex.P.51(d): Signature of PW.13 in last page Ex.P.52: Joint & Several Guarantee letter dt. 28.12.2001 (in O.D. 174) 5 sheets Ex.P.52(a): Signature of A4 in 1st page Ex.P.52(b): Signature of PW.13 in 1st page Ex.P.52(c): Signature of A4 in last page Ex.P.52(d): Signature of PW.13 in last page Ex.P.53: Letter of acknowledgment of debts and security dt. 20.9.2002 - 2 sheets Ex.P.53(a): Signature of A4 Ex.P.53(b): Signature of PW.13 Ex.P.54: D.P.Note dt. 30.08.02 for Rs.50 lakhs executed by M/s. Manx Auto Ex.P.55: Bearer letter dt. 30.08.2002 in Form No.L-435.
Ex.P.56: Supplimental deed of Hypothecation dt. 30.08.2002 by M/s. Manx Auto - 3 sheets Ex.P.57: Joint & Several Guarantee dt. 30.08.2002 - 3 sheets Ex.P.58: Form No. L-514 dt. 3008.2002 - 3 sheets of M/s. Manx Auto Ex.P.59: Letter dt. 01.01.2002 of Bank of India in favour of KSSIIDC Ex.P.60: C/c of Attendance Register for equitable mortgage 9.10.96 to 10.02.2003 - 6 sheets Ex.P.61: Bank of India letter dt. 27.12.2001 in CPA-I Ex.P.62: Credit Process Audit - 3 sheets Ex.P.62(a): Signature of PW.12 Ex.P.63: Letter dt. 02.01.2002 of KSIIDC to Bank of India Ex.P.64: Bank of Baroda letter 04.01.2002 to Bank of India Ex.P.65: Manx Auto Letter dt. 04.02.2002 to Bank of India Ex.P.66: Letter dt. 08.04.2002 of Manx Auto to Bank of India 119 Spl.C.C.150/05 J Ex.P.67: C/c from extract of minutes dt. 04.03.2002 Ex.P.68: Proforma for reporting temporary/additional limit dt. 04.04.2002 Ex.P.69: C/c of B.O.I letter dt. 14.08.2002 from Zonal Manager along with c/c of Memorandum dt. 28.06.2002 Ex.P.70: Letter dated 27.08.2002 of Fiat India Pvt. Ltd., Ex.P.71: Search Report dt. 27.12.2002 - 4 sheets Ex.P.72: Letter dated 14.02.2003 of M/s. Manx Auto to DGM, Bank of India Ex.P.73: Bank of India letter dt. 03.03.2003 to Srinivasa Jagirdar 2 sheets Ex.P.74: Letter dt. 07.04.2003 of Bank of India to Srinivasa Jagirdar Ex.P.75: Letter dt. 17.07.2003 of A2 to Bank of India Ex.P.76: C/c of letter dt. 17.07.2003 from Srinivasa Jagirdar Ex.P.77: Letter dated 12.11.2002 of Sri. H.R. Katti to Bank of India 6 sheets Ex.P77(a): Signature of PW.23 Ex.P.78: C/c of Investigation report dt. 14.01.2003 submitted by Sanjay Pawar (11 sheets) Ex.P.79: Letter dt. 14.07.2003 of Govt. of N.G. Sheshagiri Rao, Valuer 3 sheets including Valuation Report Ex.P.79(a): Signature of PW.16 Ex.P.80: Bank of Baroda cheque dt. 18.12.2001 for Rs.50 lakhs Ex.P.81: Bank of India cheque dt. 20.12.2001 for Rs.25,00,000/-
Ex.P.82: Bank of India Cheque dt. 09.01.2002 for Rs.15,00,600/- issued by M/s. Manx Auto.
Ex.P.82(a): Challan for purchasing Bankers Cheque dt.09.01.02 Ex.P.83: Bank of India Cheque dt. 09.01.2002 for Rs.10 lakhs favouring M/s. Infrasoft Ex.P.84 to 153: 70 Cheques Ex.P87(a): Signature of A9 Ex.P88(a): Signature of A9 Ex.P89(a): Initials of A1 Ex.P90(a): Signature of A9 Ex.P91(a): Signature of A9 Ex.P97(a): Signature of A9 Ex.P98(a): Signature of A9 Ex.P100(a): Signature of A9 Ex.P104(a): Signature of A9 120 Spl.C.C.150/05 J Ex.P105(a): Initials of A9 Ex.P107(a): Initials of A9 Ex.P108(a): Initials of A9 Ex.P111(a): Initials of A9 Ex.P113(a): Initials of A9 Ex.P115(a): Initials of A9 Ex.P116(a): Initials of A9 Ex.P117(a): Initials of A9 Ex.P119(a): Initials of A9 Ex.P122(a): Initials of A9 Ex.P124(a): Initials of A9 Ex.P125(a): Initials of A9 Ex.P126(a): Initials of A9 Ex.P134(a): Initials of A9 Ex.P135(a): Initials of A9 Ex.P136(a): Initials of A9 Ex.P142(a): Initials of A9 Ex.P143(a): Initials of A9 Ex.P144(a): Initials of A9 Ex.P145(a): Initials of A9 Ex.P146(a): Initials of A9 Ex.P149(a): Initials of A9 Ex.P150(a): Initials of A9 Ex.P151(a): Initials of A9 Ex.P152(a): Initials of A9 Ex.P153(a): Initials of A9 Ex.P154: Copy of Sale Deed dt. 31.08.1998 - 5 sheet Ex.P155: Extracts of minutes of the meeting dt. 05.12.2001 Ex.P156: Letter dt. 14.06.2003 of Bank of India to A2 Ex.P157: Monthly Income Certificate No. 19889 (FD receipt) for 38 lakhs with enclosures - 6 sheets Ex.P158: Monthly Income Certificate No. 19890 (FD receipt) Dt. 05.01.02 for 37 lakhs with enclosures - 6 sheets Ex.P159: Statement of account of M/s. Manx Auto - 51 sheets Ex.P160: Debit Voucher dt.06.09.2002 for Rs.3 lakhs with statement - 3 sheets Ex.P160(a): Signature of PW.14 Ex.P160(b): Signature of E.P. Pal Ex.P161: Debit Voucher dated 09.01.2002 along with statement Ex.P161(a): Statement of account Ex.P162: Statement of account of M/s. Manx Auto C/A No.11298 - 9 sheets Ex.P162(a): Certificate 121 Spl.C.C.150/05 J Ex.P163: Bank of India Manual of Instruction 4 sheets Ex.P164: Bank of India Circular dt.03.10.2001 - 5 sheets Ex.P165: Bank of India Circular dt.17.04.1998 - 3 Sheets Ex.P166: Six Photographs in respect of Plot No.60 Ex.P166(a): Signature of PW.1 Ex.P167: Proceedings along with sketch drawn on 15.04.2005 near property No.60 - 3 sheets Ex.P167(a): Signature of PW.1 Ex.P168: Proceedings along with sketch at property No.66 Ex.P168(a): Signature of PW.1 Ex.P168(b): Signature of PW.16 Ex.P169: Six Photographs signed by Mahazar team members in respect of plot No.66 Ex.P169(a): Signature of PW.1 at 6th photograph Ex.P170: Bank of Baroda letter dt.01.01.2003 addressed to Bank of India - 2 sheets Ex.P171: Certified copy of Attendance Register of Bank of India - 4 sheets Ex.P172: B.O.I. letter dt. 23.09.2005 addressed to the Investigating Officer with enclosures - 4 sheets Ex.P173: C/c of letter dt. 20.12.2002 of N.L. Jagirdar to B.N. Islur (A1) - 3 sheets Ex.P174: Original Sale Deed dt. 31.08.1998 executed by Dy.
Secretary, BDA favouring Shyam Industrial Complex
- 7 sheets Ex.P174(a) to 174(g): Signature of PW.2 on each sheet Ex.P174(h) to 174(n): Initials of PW.3 on each sheet Ex.P174(o): Signature of PW.3 on last page Ex.P174(p) to (s): Signatures of PW.4 on overleaf of 1st sheet Ex.P174(t): Signature of PW.5 Ex.P175: Possession Certificate Memo dated 20.10.1975 Ex.P176: E.C. in Form-15 for the period 01.04.1980 to 23.09.1999 Ex.P176(a): Signature of PW.5 Ex.P177: Loan application of Srinivas Jagirdar - 3 sheets Ex.P177(a): Signature of one Sri. P.S. Guru Prasad (Secretary) Ex.P177(b): Signature of the Chairman Ex.P178: Khata Certificate dt. 27.10.1975 - 1 sheet Ex.P179: Property Tax receipt dt.01.04.1998 - 1 sheet Ex.P180: Encumbrance Certificate Ex.P181: Loan application of Smt. Kousalya Srinivas - 3 sheets Ex.P181(a): Signature of the Secretary Ex.P181(b): Signature of the Chairman Ex.P182: Original Gift deed dt. 25.09.1999 in favour of 122 Spl.C.C.150/05 J Kousalya Srinivas - 6 sheets Ex.P183: Original deed of collateral security favouring the Grain Merchants Co-operative Bank - 3 sheets Ex.P184: Encumbrance Certificate - 1 sheet Ex.P185: Power of Attorney dt. 17.07.1976 - 1 sheet Ex.P185(a): Signature of Shamala Jagirdar Ex.P186: Copy of the notice dt. 26.07.1984 published in the Deccan Herald - 1 sheet Ex.P187: Opinion of Sri. H.R. Hatti, Panel Advocate dt.26.08.2003 Ex.P187(a): Signature of PW.23 Ex.P188: C.C. of extract of Index Register Ex.P188(a) to (c): Relevant entries Ex.P189: Search List dt.04.01.2005 Ex.P189(a): Signature of PW.20 Ex.P190: Search List dt:04.01.2005 Ex.P190(a): Signature of PW.21 Ex.P190(b): Signature of witness Channabasavaiah Ex.P190(c): Signature of Dayananda Ex.P190(d): Signature of A3 Ex.P191: Copy of the H.C. order in W.P. Nos. 21703 & 10352/86 dt. 30.03.1994 - 15 sheets Ex.P192: Search List dt.04.01.2005 Ex.P192(a): Signature of PW.24 Ex.P192(b): Signature of M.J. Subramanya Ex.P193: Search List dt.04.01.2005 Ex.P193(a): Signature of PW.25 Ex.P193(b): Signature of another witness Ex.P194: Receipt Memo dt. 26.09.2005 Ex.P194(a): Signature Ex.P195: Statement of Account of HDFC, Bank Ltd., Ex.P196: Cheque deposit slip 09.01.2002 for Rs.10,00,000/- Ex.P197: Cheque deposit slip 10.01.2002 for Rs.15,00,000/- Ex.P198: Sanction order dt.09.11.2005 Ex.P198(a): Signature of PW.29 Ex.P199: Copy of the Disciplinary and Appeal Regulations of Bank of India - 3 sheets Ex.P200: Receipt Memo dt. 04.05.2005 Ex.P200(a): Signature of PW.31 Ex.P201: C.C. of No Due Certificate Ex.P202: C.C. of Acknowledgment dt. 30.04.98 Ex.P203: C.C. of Letter dt. 28.04.1998 Ex.P204: C.C. of registered sale deed dt. 12.07.1988 Ex.P205: C.C. of Endorsement dt. 14.07.1998 123 Spl.C.C.150/05 J Ex.P206: C.C. of the letter dt. 12.08.1998 from B.D.A. Ex.P207: C.C. of the letter dt. 13.08.1998 to B.D.A. Ex.P208: C.C. of the E.C. Ex.P209: C.C. of the letter dt. 17.8.1998 to B.D.A. Ex.P210: C.C. of the Indemnity Bond Ex.P211: Letter dt. 18.4.2005 of Zonal Manager, B.O.I. to CBI Ex.P211(a): Signature of PW.32 Ex.P212: Letter dt. 16.5.2005 of Zonal Manager, B.O.I to the CBI -3 sheets Ex.P212(a): Signature of PW.32 Ex.P213: Letter dt. 14.6.2005 of Zonal Manager, B.O.I. to the CBI with enclosures - 7 sheets Ex.P213(a): Signature of PW.32 Ex.P214: Letter dt. 6.6.2005 of Senior Manager (Personnel), B.O.I. to CBI Ex.P214(a): Signature of P.G. Naik - 1 sheet Ex.P215: B.O.I Circular dt. 3.10.2001 bearing No.95/87 regarding delegation of powers - 6 sheets Ex.P216: Original Search List dt. 4.1.2005 Ex.P216(a): Signature of PW.33 Ex.P216(b) & (c): Signatures of Independent witnesses Ex.P217: Original Search List dt. 4.1.2005 (Search conducted in the residence of A1) Ex.P217(a): Signature of PW.35 Ex.P217(b): Signature of Gopalakrishna Ex.P217(c): Signature of CW37 Ex.P218: Specimen initials of Sri. D. Kencharase Gowda Ex.P219: Specimen Signatures of Sri. Jithendar Singh Ex.P220: Specimen initials of Sri. M. Gundu Rao - 2 sheets Ex.P221: Specimen initials of Sri. G.V. Chandrashekharaiah Ex.P222: Specimen signature of Sri. H. Gujjarappa Ex.P223: Specimen signature of Sri. D. Narasimha Murthy Ex.P224: Specimen signature of Sri. G.V. Chandrashekaraiah Ex.P225: Specimen signature of Sri. M. Gundu Rao Ex.P226: Specimen signature of Sri. Kishan Jagirdar Ex.P227: Specimen signature of Sri. J.N. Prabhakar Ex.P228: Specimen signature of Sri. Srinivas Jagirdar Ex.P229: Specimen signature of Sri. J.N. Ramesh Ex.P230: Specimen signature of Sri. B.V. Islur Ex.P231: Specimen signature of Sri. N.L. Jagirdar Ex.P232: Specimen signature of Sri. N.L. Jagirdar Ex.P233: Specimen initials of Sri. N.L. Jagirdar Ex.P234: Specimen signature of Sri. U.L. Somappa Ex.P235: Specimen signature of Sri. Kousalya Srinivas Jagirdar 124 Spl.C.C.150/05 J Ex.P236: Specimen signature of Sri. A.D. Kulakarni Ex.P237: Specimen handwritings of Sri. Sidde Gowda Ex.P238: Letter dt. 25.10.2005 of GEQD to SP, CBI/ACB/ BLR Ex.P238(a): Signature of GEQD Ex.P239: GEQD Opinion dt. 25.10.2005 No. CH-273/2005 Ex.P239(a): Signature of PW.36 Ex.P239(b): Signature of GEQD Ex.P240: Reasons for opinion No. CH-273/05 Ex.P240(a): Signature of PW.36 Ex.P241: F.I.R.
Ex.P241(a): Signature of SP Ex.P242: Copy of explanation dt. 10.2.2003 of A1 to the Bank Ex.P243: Receipt Memo dt. 21.2.2005 and enclosures Ex.P244: Photocopy of receipt memo dt. 8.4.2005 along with E.C. affidavit, deed of sureties Ex.P245: Receipt Memo dt. 6.4.2005 Ex.P246: Receipt Memo dt. 25.4.2005 Ex.P247: Receipt Memo dt. 25.5.2005 & CC of judgment of KAT - 5 sheets Ex.P248: Letter dt. 19.5.2005 of B.O.I. with enclosures Ex.P249: Letter dt. 1.6.2005 of PW.5 to CBI Ex.P250: Receipt Memo dt. 3.1.2005 Ex.P251: Receipt Memo dt. 4.4.2005 LIST OF DOCUMENTS EXHIBITED FOR THE DEFENCE:
Ex.D-1: Relevant portion of statement of PW.30/CW2 LIST OF MATERAIL OBJECTS MARKED FOR PROSECUTION:
-
- NIL -
(Bheemanagouda K. Naik) XXI Addl.City Civil and Sessions Judge And Prl. Special Judge for CBI Cases, Bengaluru City.
125 Spl.C.C.150/05 J Judgment pronounced in open court, vide separate detailed order.
ORDER
Acting under Section 235(1)
of Cr.P.C., Accused No.1,2,5,7 to 9
are hereby acquitted for the
offence punishable u/s 120-B, 420,
467 and 468 IPC.
Further, accused No.1 and 9
are acquitted for the offence u/Sec.
13(2) r/w sec. 13(1)(d) of
Prevention of Corruption Act, 1988.
126 Spl.C.C.150/05 J
The bail bonds and the
surety bonds of accused No.1,2,5,7
to 9 executed for the appearance
and trial of this case before this
court are hereby cancelled.
(Bheemanagouda K. Naik)
XXI Addl.City Civil and Sessions
Judge, and Prl. Special Judge for
CBI Cases, Bengaluru.
127 Spl.C.C.150/05 J