Bangalore District Court
State By Inspector Of Police vs Sri M.T.Venkatashiva Reddy S/O on 31 December, 2019
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH82)
:Present :
Sri RAMACHANDRA D. HUDDAR, B.Com., LLM.,
LXXXI ACC & SJ, Bengaluru City (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected MPs/MLAs
in the State of Karnataka)
Dated: This the 31st day of December, 2019
Spl. CC No. 171 / 2009
COMPLAINANT:- State by Inspector of Police, CBI,
Banking Securities and Fraud Cell,
Bengaluru
(By Special Public Prosecutor)
V/s
ACCUSED:- 1. Sri M.T.Venkatashiva Reddy S/o
Late Thimmi Reddy
Aged about 68 years
Former Chief Manager, SBM,
Specialised personal Banking
Branch
Gandhinagar, Bngalore-560009
R/at: No.E-1/16, 1st Cross
Syndicate Bank Colony
J.P.Nagar, 7th Phase,
Bengaluru-560 078
2. Sri D.Sudhakar S/o
N.Dasarathaiah
Aged about 58 years
Proprietor of M/s.Trishul
Enterprises
R/at: Gommuta Nilaya
2 Spl.CC No.171/2009
Bengaluru road, Challakere
Chitradurga Dist
Karnataka
3. Sri V.N.Ajit Prasad Jain
S/o V.R.Nagaraj Jain
Aged about 57 years
Partner of M/s.Trishul Enterprises
R/at: Sachinag,
OPP. G.G.Samudaya Bhavan
Stadium road, Chitradurga
4. Sri K.V.Hanumapp Reddy
S/o late K.H.Venkat Reddy
Aged about 61 years
Partner of M/s.Trishul Enterprises
R/at: Manhanahalli
Gauribidanur Tq.,
Chikkaballapur Dist
5. Sri G.M.Ramesh S/o G.S.Maruti
Aged about 52 years
Managing Director
M/s.Meerams Overseas Pvt Ltd,
R/at: No.471, Maruti Nilaya
1st Cross, pavagada Road
Challakere, Chitradurga
6. M/s.Trishul Enterprises
(Unregistered partnership firm)
No.12. 4th Cross,
Gandhinagar, Bengaluru
Represented by accused No.2,3
and 4
Partners
7. M/s.Seven Hills Properties Pvt Ltd
(Private Limited Company)
No.12, 4th Cross
Gandhinagar, Bengaluru
3 Spl.CC No.171/2009
(represented by accused No.2 as
Its Director)
Date of offence During the period between 2003
and 2006
Date of report of offence 30.1.2008
Name of the complainant Sri R.D.Naidu, Chief Vigilance
Officer, SBM, Bangalore
Date of commencement of 18.2.2019
recording of evidence
Date of closing of evidence 03.09.2019
Offences complained of Sec.120B r/w 409, 420, 467, 468
and 471 of IPC and Sec.13(2) r/w
13(1) and (d) of P.C.Act
Opinion of the Judge Accused is found not guilty
State represented by Learned Special Public Prosecutor
Accused defended by Sri RNN, Advocate for accused
No.1
Sri A.C., Advocate for Accused
No.2 to 7
JUDGMENT
Accused No.1 to 7 have been charge sheeted by the Inspector of Police CBI/BS&FC/Bangalore on 10.8.2009 alleging offences punishable U/s. 120B r/w 409, 420, 467, 468 and 471 of IPC and under Sec.13(2) r/w 13(1)(d) of Prevention of Corruption Act of 1988.
4 Spl.CC No.171/2009
2. Brief and relevant facts leading to the case of the prosecution are as under:-
That the complainant by name Ramadas Naidu being Chief Vigilance Officer, examined as PW1 lodged a complaint on 31.1.2008 before Superintendent of Police, CBI, Banking Securities and Fraud Cell, No.36, Bellary Road, Ganganagar, Bengaluru alleging that, it is noticed by the then Regional Office of the then State Bank of Mysore about irregularities in sanction and conduct of housing loans at Specialized Personal Banking Branch, Gandhinagar, Bangalore.
It is stated that, the then State Bank of Mysore (a body corporate constituted under the provisions of State Bank of India, Subsidiary Bank Act 1959), having its head office at K.G.Road, Bangalore and branches across the country. This complaint is filed alleging that, housing loans availed by some individuals through M/s.Trishul Enterprises submitting fabricated salary certificates at the aforesaid branch, during the incumbency of accused No.1 M.T.V.Reddy, the then Chief Manager for the period from 5 Spl.CC No.171/2009 August 2003 to January 2006 who was working as Chief Manager, G-Seva Branch, Bangalore at the time of filing of the complaint.
It is further alleged by the Complainant that, the said incident was detected on 28.12.2005 by the Regional Office while perusing the salary certificates enclosed to the control returns submitted by the above branch for various housing loans sanctioned at the branch. After having confirmed the same, it is noticed that the salary certificates furnished were false. This fact was reported to the Chief Vigilance Officer as per note dated 22.3.2006.
It is further alleged by the Complainant that, the Vigilance Department of the Regional Office conducted investigation and noticed that the accused No.1 being the then Chief Manager of said branch colluding with M/s.Trishul Enterprises, Anandrao circle, Bangalore had sanctioned 76 housing loans amounting to Rs.5.50 crores in the names of several existing and non-existing employees of HAL, BMTC, KSRTC etc. It is also noticed that the modus 6 Spl.CC No.171/2009 operandi of the accused persons that there was a fraud being committed by the Company so stated above.
A bunch of applications being submitted for housing loans along with false Form-16 under the provisions of I.T.Act and salary certificates purported to have been issued by HAL, BMTC, KSRTC, etc. The concerned departments, have denied about issuance of the salary certificates. But accused No.1 by accepting said false documents have granted the loan by using his position as Branch Manager.
Further specific allegations have made by the Complainant that, M/s.Trishul Enterprises was represented by its Partners by name D.Sudhakar, Ajit Prasad jain and K.V.Hanumapppa Reddy who are accused in this case, being the developers of land at Soundaryanagar, Singapura and other places. These loans were availed for speculative purposes in real estate business. When the complaint was filed, 56 housing loan accounts aggregating to Rs.4.19 crores are outstanding. A list showing the housing loan accounts sanctioned through M/s.Trishul Enterprises is 7 Spl.CC No.171/2009 enclosed as Annexure-A. A list of housing loans sanctioned organization-wise is enclosed enclosed as Annexure-B which forms part and parcel of the complaint.
It is further alleged by the Complainant that by following similar modus operandi, another fraudulent act was perpetrated by accused No.1 and he sanctioned 27 housing loans amounting to Rs.1.50 crores through D.Sudhakar, Partner of M/s.Seven Hills Properties Private Limited in the names of several existing and non-existing employees of BSNL, S.W. Railways, Foremen Training Institute etc. It is alleged that the concerned departments have denied issuing the salary certificates. When the complaint was filed, seven housing loan accounts aggregating to Rs.0.42 crores was outstanding. A list showing the housing loan accounts sanctioned through M/s.Seven Hills Properties Pvt., Limited is enclosed as Annexure-C along with the complaint.
It is the specific allegation of the Complainant that, there are also instances of cheques purchase in favour of M/s.Trishul Enterprises and its partners and M/s.Seven 8 Spl.CC No.171/2009 Hills Properties Pvt Ltd., without any sanctioned Limit/discretion/authority. The control returns have been sent to Regional Office. The Regional Office has advised the branch to desist from such cheque purchases for huge amounts without prior approval. But the branch has continued to purchase cheques without heeding to the advise of the Regional Office. Regional Office addressed letters to that effect on 17.9.2005 and 27.9.2005.
It is further alleged that, most of these cheques are accommodation cheques and local cheques. The cheque returns are not reported to the Regional Office. A list of the cheque purchases made is furnished in Annexure-D and E which are part and parcel of the complaint.
It is further specifically alleged by the Complainant that as per CVC Guidelines, any complaint in respect of fraud involving Rs.5 crores and above has to be filed before the CBI, Banking Securities and Fraud Cell. In this case the total amount involved is Rs.7.00 Crores and outsiders also involved in availing housing loans by producing fabricated salary certificates and other 9 Spl.CC No.171/2009 documents. Therefore, it is prayed by the Complainant to initiate necessary action against the alleged persons and deal with them in accordance with law."
3. With these allegations, the Complainant filed a complaint. Based upon the said complaint Ex.P.1 Mr.Hithendra the then Superintendent of Police registered the same in Crime in R.C.No.1(E) of 2008 and prepared FIR as per Ex.P.543 handed over investigation to PW124 by name Ms. Prema Logan, being the then Police Inspector, CBI, Bank Securities and Fraud Cell, Bengaluru.
4. This P.W.124 on taking up investigation, conducted the search of the house of accused No.1. Recorded the statements of various witnesses so examined in this case, collected the documents so marked as exhibits in this case. Handed over the investigation to P.W.125 Smt. Chandra Rani. This P.W.125 on taking up investigation, recorded the statements of witnesses, collected voluminous documents which are marked in this case. As there was prima facie case, made out to file charge sheet against accused, she filed charge sheet.
10 Spl.CC No.171/2009
5. The records further do reveal that during the course of investigation these accused persons were enlarged on bail.
6. After filing of the charge sheet, cognizance of the offence was taken, presence of the accused was secured. Copies of police papers are supplied to accused as contemplated under Sec.207 of Cr.P.C.
7. Initially charge sheet was filed before the Special Court to deal with the cases under the provisions of Prevention of Corruption Act, 1988. After establishment of this court as per Government Order No.LAW 10 LCE 2018 dt.8.2.2018 and notification of Hon'ble High Court of Karnataka bearing No.GOB(I)1/2018, Dt.23.2.2018 exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka, the entire records of this case are transmitted to this court. Presence of accused is secured before this court also. The records of this case further reveal that, one of the accused has preferred Crl.R.P. No.326/2013 before the Hon'ble High Court of Karnataka. The records further reveal that, the orders in 11 Spl.CC No.171/2009 the said Crl.R.P. is awaited. The Learned predecessor of this court has passed a detailed order on 30.11.2018 stating that, as the said stay order was operating from more than six months, therefore, as per the direction of the Hon'ble Supreme Court of India referred to in the said order, case was posted for framing of charge. As the accused have not reported about the progress of Crl. Revision petition, after hearing both the sides, charges against the accused persons for offences punishable U/s. 120B r/w 409, 420, 467, 468 and 471 and under Sec.13(1)
(d) r/w 13(2) of P.C.Act framed, read over and explained to accused in kannada in the language known to them. They pleaded not guilty and claimed to be tried. Subsequently, the said Crl.R.P. was got dismissed by the accused as not pressed.
8. Prosecution to substantiate the guilt of the accused in all examined 125 witnesses as PW1 to 125 and got marked Ex.P.1 to 585 with respective signatures thereon. On behalf of the defence Ex.D.1 to Ex.D.14 are marked. Thereafter, prosecution closed its evidence. 12 Spl.CC No.171/2009
9. After closure of evidence by prosecution, statement of accused persons is recorded under Sec.313 of Cr.P.C., so as to enable them to answer the incriminating circumstances appearing in the evidence of prosecution. The accused denied their complicity in the crime, did not choose to lead any defence evidence on their behalf. Accused No.1 to 5 have submitted their respective written statement.
10. Heard the arguments of learned Special PP and learned counsel for accused No.1 and accused No.2 to 7 at length.
11. It is argued by the learned SPP that in this case accused No.1 to 7 have been charge sheeted for the offences punishable U/s. 409, 420, 467, 468, 471 and 120B of IPC and under Sec.13(2) r/w 13(1)(d) of Prevention of Corruption Act 1988. He submits that accused No.6 and 7 are the companies being the developers of layouts. Accused No.3 and 4 are the partners and accused No.5 is the Managing Director. He further submits that accused No.1 at the relevant time was working as Chief Manager of 13 Spl.CC No.171/2009 Specialized Personal Banking Branch, Gandhinagara. All these accused have cheated the bank. He placed reliance on the allegations made in the charge sheet. It is further submitted by him that accused No.1 was found with blank cheques belongs to accused No.2. House loan has to be released phasewise. But this accused has not followed the said procedure being adopted by the SBM. Development cost and site purchase cost are different and at different stages amount is to be released.
12. It is further submitted by him that the rate of interest of housing loan is about 8% and for commercial purpose rate of interest is between 13 to 14%. But these accused No.6 and 7 being the Company and developers of the layout have availed the loan at the rate of interest of 8.5% styling it as housing loan. Thus caused loss to State Bank of Mysore. These accused No.2 to 4 have lured the customers to purchase sites by appointing agents. Though the layouts are not formed or developed, the loan has been granted by the accused No.1, even there was no construction of houses.
14 Spl.CC No.171/2009
13. He further argued that while granting housing loan no proper procedure is being followed by accused No.1 being the Chief Manager of SPB Branch, Gandhinagara of SBM and these accused No.2, 3 4, 6 and 7 are involved in the commission of crime in the manner alleged in the charge sheet. At the time of granting house loan, fake salary certificates have been entertained by this accused No.1 and they have been collected by the agents of accused No.6 and 7. The Investigation Officer has collected the information from various companies like BMTC, KSRTC, S.W.Railway and other concerned, wherein they have specifically stated that whatever certificates being issued to the employees are all fake certificates. So they did not admit about issuance of the said salary certificates. But based upon those fake salary certificates this accused No.1 has entertained the loan applications and granted loan at the lowest rate of interest at 8.5% p.a. and that amount has been utilised by accused No.6 and 7 for their business. Thus loss has been caused by the accused persons to the State Bank of Mysore and it is notional loss. 15 Spl.CC No.171/2009
14. Second limb of arguments of the SPP is that, this accused No.1 has entertained discounting of bills and so also he has purchased cheques, though there is statutory limit being fixed by the Head Office of SBM, but this accused No.1 has exceeded his discretionary limit of discounting limit as well as cheque purchase. Therefore, it is submitted that by the learned SPP that the contents of the complaint as well as investigation papers do reveal about entertaining fake salary slips, discounting cheques beyond discretion and this accused No.1 has exceeded the power despite the instructions given by the head office and clandestinely this accused No.1 has acted against the instructions of Regional Office. It should have been genuine cheque purchase. But this accused No.1 has entertained accommodative cheques and given discount even to the local cheques also. These local cheques as well as self- cheques have been entertained. The amount involved in this case is about Rs.07 crores. The Control returns submitted by the accused to the Regional Office detected the fraud committed by the accused persons. He has 16 Spl.CC No.171/2009 placed reliance on the statement of PW1 who has specifically stated about the fraud being detected at the time of scrutinizing the records of the said branch with regard to the granting of housing loan and discounting of cheques and purchase of cheques etc. He placed reliance upon the delegation of power circular issued by the Head Office. It is further submitted by the learned SPP that on overall reading of the entire evidence on record by the prosecution, it do prove the case of the prosecution. Therefore, he submits that the prosecution is able to establish the guilt of the accused beyond reasonable doubt.
15. In support of his submission, he placed reliance upon the following judgments:-
1) (2013) 2 SCC 162 (N.V.Subba Rao Vs. State through Inspector of Police,CBI/SPE, Visakhapatnam, AP.
2) (2009) 15 SCC 643 Mir Nagvi Askari Vs. CBI
3) (2009) 11 SCC 737 (R.Venkatakrishnan Vs. CBI)
16. As against this submission, learned counsel for accused No.1 submits that, the evidence placed on record 17 Spl.CC No.171/2009 by the prosecution do not prove the offences against the accused persons. He submits that, if at all the accused have misappropriated the amount released in favour of the customers i.e., intending purchasers of the site and houses being developed and constructed by accused No.6 and 7, these accused persons are the main reasons to recover the loan amount being raised by the borrowers. There is no abuse of power by accused No.1 in the manner stated by the prosecution. He further submits that to attract the provisions of Sec.13(1)(c) and (d) of Prevention of Corruption Act, the prosecution is under obligation to prove the abuse of the position by accused No.1 as Chief Manager of the said branch. There is no allegations of forgery being committed by any of the accused with regard to the documents being collected at the time of granting loan to the borrowers who are the intending purchasers of the sites and houses being developed and constructed by accused No.6 and 7. He relied on definition of Sec.467 of IPC so, also Sec.30 of the IPC. According to him Sec.467 of IPC is not attracted. He places reliance upon the definition 18 Spl.CC No.171/2009 of various offences alleged against the accused persons. He submits that there is no direct allegation by CBI that the salary certificates are forged. Therefore, Sec.467 and 468 of IPC are not attracted and they will no come into picture. He further submits that, PW3's evidence is quite against the contents of Ex.P.4, 5 and 6.
17. It is further submitted by the counsel for the accused No.1 that the prosecution is under obligation to prove its case beyond reasonable doubt. But it is relying upon only the circumstances, so brought on record through the witnesses so examined. He submits that the Manager of the Bank is supposed to help the customers within the parameters of law. The prosecution must to prove the mens rea and also malafide intention, so also the motive to commit the offence. All the actions did by the accused are recognized by law and has not gone out of way or violated the jurisdiction vested in him. To that effect if the evidence of Complainant is read, it is very much clear about the transparency being followed by the accused No.1 and he has always maintained transparency in his business. This 19 Spl.CC No.171/2009 accused No.1 has been awarded with various awards and he was conferred with Best Manager Award, his branch has reached 40% marks and Head Office has granted 40 out 40 marks. Therefore, he submits that the cross-examination of PW1 simply proves the innocence of accused No.1. The complaint itself shows that the Complainant has not read the relevant records and has not followed the proper procedure. Therefore, he submits that his evidence is false and cannot be accepted.
18. He further submits that, the evidence of PW2 is also quite against the contents of Ex.P.3 i.e., limited disbursement of the loan as per the circulars of Head Office of State Bank of Mysore. He also submits that, the evidence of PW3 shows that he has not collected any documents and the evidence of these witnesses is quite contrary to the case of the prosecution. The records do reveal that this accused No.1 was transferred from the said branch on 16.1.2006 and thereafter, similar transactions were entertained by the succeeding managers of the said branch. But the bank is not questing the act of 20 Spl.CC No.171/2009 succeeding managers of the branch. But questioning the very act of accused No.1. One Muralidhar, after the transfer of accused No.1, took the charge as Chief Manager of said branch and he purchased cheques exceeding his power / limit. That Muralidhar is examined as PW7 in this case. He submits that it is routine transaction in the bank so as to help the customers and banker is dignified borrower. This exceeding of the limit is not forbidden by law. Accused No.1 was asked not to purchase cheques till realisation of the old cheques. That means that the acts of accused No.1 in purchase of the cheques or to give discount of the bills is being ratified by the Regional Office and temporarily he was asked to stop purchase of the cheques till realisation of the cheques already purchased.
19. It is further submitted by counsel for the accused No.1 that, the reason so assigned by the witnesses so examined in this case are not in accordance with law and there is no violation of any procedure by accused No.1 21 Spl.CC No.171/2009 at any point of time. There is no clarity in the evidence of PW7.
20. It is further submitted by the counsel for the accused No.1 that, what is required for the layout. It requires formation of layout, drainage, electricity, identifying the sites. The evidence so produced on record by the prosecution itself proves that these accused No.6 and 7 have developed the respective sites and have sold the sites to respective customers and these customers have raised loans from State Bank of Mysore, SPB branch and agents of the accused No.6 and 7 have helped. Voluntarily these customers have borrowed the loan. In this case evidence of PW8 is very much important. So also the admissions given by PW8 specifically proves that the defence of accused No.1 that he is quite innocent. He relies upon the evidence of various witnesses in this case so examined.
21. In support of his submission with regard to cheque discounting etc., he places reliance on the following judgments:-
22 Spl.CC No.171/2009
1) (2009) 6 SCC 77 (S.V.L. Murthy Vs. State, CBI, Hyderabad)
2) (2009)8 SCC 617 (State of Madhya Pradesh Vs. Sheetla Sahai and others)
3) (1977) 2 SCC 394 (Major S.K.kale Vs. State of Maharashtra)
4) (2000)4 SCC 168 (Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another)
5) (2005) 12 SCC 631 (K.R.Purushothaman Vs. State of Kerala)
6) (2002) 1 SCC 241 (S.W.Palanitkar and others Vs. State of Bihar and another)
22. Learned counsel for accused No.2 to 7 argued that, there is an attempt by the prosecution to prove its case basing upon the following factors. With regard to the selling of the sites formed in the respective layouts of accused No.6 and 7, it is alleged that there was no layout formation, there was no electricity and there was no development etc. But this assertion of the prosecution has been falsified by the admissions given in the cross- examination.
23. He submits that, there is allegation of fabrication of salary certificates being collected at the time 23 Spl.CC No.171/2009 of granting of loan by accused No.1. According to the prosecution, remaining accused are the main cause for fabrication. The question comes according to him, that, who forged the contents of the salary certificates. It is the duty of the I.O. to investigate. Mere allegation against the accused person that, there is fabrication of salary certificate is not a proof. The documents have been relied upon by the counsel for the accused No.2 to 7 and he submits that, the charge so framed in this case do not attract the commission of offence by accused persons. Accused No.1 is charged for offence under Sec.409 of IPC. So also he has been charged with the offence U/s.420 of IPC. So far as other accused are concerned, charges are framed against them for other offences as stated supra. Thus documents like salary certificate and form No.16, it is alleged that they are fabricated. Accused no.3 and 4, according to the prosecution, are the main cause for this fabrication. He submits that the allegations so made by the prosecution against these accused is a contingent allegation and it is virtually contingent in nature. It is 24 Spl.CC No.171/2009 alleged that borrowers have been set up by the two developers, motive is available for availing the housing loans, it is used for commercial purpose and thus there is notional loss to the bank. The allegation so made in the charge sheet is for notional loss. The difference of interest of 5% p.a. The bank charges interest at the rate of 13.5% p.a. to the commercial loan and to the housing loan it charges interest at the rate of 8.5 % p.a. The records so produced by the prosecution prove that many loans have been paid to the borrowers and some of the loans have been taken over by the developers by re-buying the property. Therefore, it is nobody's case that loan so availed is not repaid. Bill discounting is alleged exceeding the discretionary limits. He also relies upon the definition of various offences alleged against the accused and submit that to prove the conspiracy between the accused persons, meeting of mind is necessary and in this case it is missing.
24. It is further submitted by counsel for accused No.2 to 7 that, the allegation is against only 24 borrowers and not against all 174 borrowers. Borrowers having 25 Spl.CC No.171/2009 purchased the sites, have sold their sites and prosecution has no allegation at all with regard to said re-sale. No fraud is detected. The statements so recorded by the I.O. under Sec.161 of Cr.P.C., and the evidence so recorded by the prosecution, if looked into, in this case the role of I.O. is vital and there is no proper investigation being carried out by the I.O. If the investigation was properly carried out, I.O. then would have brought real facts before the court and I.O. would not have filed charge sheet against the accused persons.
25. It is further submitted by counsel for accused No.2 to 7 that, there is no role being played by these accused No.2 to 7 in the grant of loan. Almost six borrowers so examined in this case, have stated that agents have committed forgery and eight borrowers of the loan transaction have been repaid by the sale or by on their own. Some borrowers have repaid the loan. Three borrowers have received their sites. Three of them say construction is completed. Therefore, when the construction is completed and keys have been handed over, 26 Spl.CC No.171/2009 the prosecution cannot now say that no layout is formed, no development has taken place etc. Therefore, a basic introductory introduction of forgery is not proved by the prosecution with legal evidence. There is no proper investigation in the line which is expected by the I.O. Role of the agents is not ascertained by the I.O. Investigation was not carried out on that aspect. All the borrowers would have been arrayed as approvers as per Sec.306 of IPC. It is not done. No evidence is placed by the prosecution that the bank has really suffered the monetary loss. He too relies on the various evidence of witnesses so examined by the prosecution in this case and thus the learned counsel for accused No.2 to 7 with all vehemence submits that the prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt and hence, accused No.1 to 7 are entitled for acquittal.
26. At the time of hearing the arguments, it is noticed that, charge so framed in this case is not properly framed. Learned S.P.P. filed application under Sec.216 of Cr.P.C. for alteration of charge. Counsels for accused 27 Spl.CC No.171/2009 submitted their no objection. Accordingly, a detailed order came to be passed by this court on 11.12.2019 and charge came to be altered. Altered charge read over and explained to the accused persons in the language known to them. They pleaded not guilty and claims to be tried. It is submitted by both the side that, in view of leading evidence in this case, no further evidence is necessary. Hence, evidence on altered charge is closed.
27. I have applied my mind to the arguments of both sides. In the light of the prosecution evidence so recorded, so also in the light of the submissions being made by the sides, the following points arise for my consideration:-
1) Whether the prosecution proves beyond all reasonable doubt that during the period between 2003 and 2006 accused No.1 being a Chief Manager, State Bank of Mysore, Specialized Personal Banking Branch, Gandhinagara having entrusted with the power of sanction and disbursement of credit facilities in the housing loan sector and he connived and conspired with accused 28 Spl.CC No.171/2009 No.2 to 7, fraudulently sanctioned a loan of Rs.5.50 crores to 76 borrowers in the name of non-existing employees of HAL, BMTC, KSRTC by accepting bunch of loan applications from accused No.6 and 7 M/s.Trishul enterprises and M/s. Seven Hill Properties Pvt Ltd., represented by accused No.2 to 5, who are partners and directors along with forged and fabricated form No.16 and salary certificates purported to have been issued by above said organizations by illegal means and thereby committed an offence punishale u/s 120B of IPC?
2) Whether the prosecution further proves beyond all reasonable doubt that accused No.1 connived and conspired with accused Nos.2 to 7, sanctioned 27 housing loans amounting to Rs.1.50 crores in the name of several existing and non-existing employees of BSNL, South Western Railways, Foreman Training, etc., totally 124 housing loans sanctioned and released amounting to Rs.8,12,72,934/- in the name of several existing and non-existing employees by dishonestly inducing them and thereby 29 Spl.CC No.171/2009 committed an offence punishable u/s 420 r/w sec.120B of IPC?
3) Whether the prosecution further proves beyond all reasonable doubt that accused No.1 connived and conspired with accused No.2 to 4 sanctioned and released 124 housing loans in the name of several existing and non-existing employees by forging salary certificates purported to be a valuable security and thereby committed an offence punishable u/s 467 r/w sec.120B of IPC?
4) Whether the prosecution further proves beyond all reasonable doubt that accused No.1 connived and conspired with accused No.2 to 4 forged salary certificates, Form No.16 of various non-
existing employees and intended to use them for the purpose of cheating the Bank by sanctioning loans in their name and thereby committed an offence punishable u/s 468 r/w sec.120B of IPC?
5) Whether the prosecution further proves beyond all reasonable doubt that accused No.1 connived and conspired with accused No.5, without proper 30 Spl.CC No.171/2009 scrutiny of false sale invoices, lorry receipts, confirmation receipts of consignment, discounted the bills, dishonestly transferred the amount and thereby committed an offence punishable U/s. 420 r/w sec.120B of IPC?
6) Whether the prosecution further proves beyond all reasonable doubt that accused No.1 being a Chief Manager of Specialized Personal Banking Branch, State Bank of Mysore, Gandhinagar Branch was entrusted with a duty to discount the cheques in the capacity of Chief Manager of the said Bank Limit, discounted the cheque, connived and conspired with accused Nos.2 to 4 without following the prescribed discretionary limit, discounted cheques and thereby committed an offence punishable u/s 409 r/w sec.120B of IPC?
7) Whether the prosecution further proves beyond all reasonable doubt that accused No.1 connived and conspired with accused Nos.2 to 4, 6 & 7 fraudulently and dishonestly used the salary certificates, Form No.16 which they knew at the time of sanctioning and 31 Spl.CC No.171/2009 releasing of House Loan to the borrowers were forged documents and thereby committed an offence of punishable U/s. 471 r/w 120B of IPC?
8) Whether prosecution further proves beyond all reasonable doubt that accused No.1 being the Chief Manager of the aforesaid Bank during his term between 2003 to 2006 in connivance with accused Nos.2 to 12 by corrupt and illegal means, abusing his position as a public servant got pecuniary advantage by sanctioning and releasing the Housing Loan to the non-existing employees by accepting forged and fabricated salary certificates, Form No.16, discounted the cheques and bills beyond discretionary Limit and thereby committed an offence punishable u/s 13(1)(d) r/w sec.13(2) of Prevention of Corruption Act, 1988?
9) What order or sentence?
28. My answer to the above points are as under:-
Point No.1:- In the Negative Point No.2:- In the Negative Point No.3:- In the Negative 32 Spl.CC No.171/2009 Point No.4:- In the Negative Point No.5:- In the Negative Point No.6:- In the Negative Point No.7:- In the Negative Point No.8:- In the Negative Point No.9:- As per final order for the following.
REASONS
29. Point No.1 to 8:- These points so raised supra are inextricably mixed up with each other. Therefore, I would like to discuss them together so as to avoid repetition of discussion and confusion. To ascertain the truth in this case, it is just and proper to refer the evidence so recorded in this case by the prosecution. The witnesses so examined in this case, PW1 to 11 are the officials of the then State Bank of Mysore. Some of them have retired and some are still working. They have come before the court to depose about their respective roles being played right from the filing of complaint till completion of investigation.
30. Amongst the witnesses so examined in this case, PW1 Ramadas Naidu is the complainant. He states before the court on oath that during his services with State Bank 33 Spl.CC No.171/2009 of Mysore he worked as Chief Manager and Chief Vigilance Officer. He ordered for investigation by the vigilance department in the matter of arranging loans to M/s. Thrishul Enterprises and Seven Hills Properties Pvt Ltd., He specifically states that, the partners and the Directors of the said companies have forwarded bunch of applications to the branch i.e., 76 loan applications from M/s. Trishul Enterprises and 27 housing loans applications from Seven Hills Properties Pvt Ltd. In the month of December 2005 Regiional Office of SBM has noticed that in respect of various loans sponsored by these two companies were not genuine and were bogus and fabricated. The departments who being issued said salary certificates denied that they have issued such salary certificates. Said Departments are HAL, BMTC, KSRTC, BSNL, South Western Railways, Foreman Training Institute, etc. The Regional Office reported these facts to the Vigilance Office in the month of March 2006.
31. He says that, based upon the said report submitted to the Regional Office, this PW1 ordered for 34 Spl.CC No.171/2009 investigation by the Vigilance Department. When the Vigilance Department did internal investigation, he states that, it was noticed by the Vigilance Cell that the certificates were fake and forged. It is also noticed by the investigation cell that the cheques were purchased on behalf of the said companies and its partners and so also the directors in spite of Regional Office directed the branch not to purchase such cheques bearing higher amount. It is further stated by this witness that some of the cheques were returned unpaid and it was not at all reported to the Regional Office. Therefore, he says that said amount so involved is more than Rs.5 Crores. Therefore, he lodged complaint before the CBI (Banking Security and Fraud Cell) for further investigation at their end as per CVC guidelines. Said complaint is marked in this case as per Ex.P.1 and the documents submitted along with the complaint is marked Ex.P.2.
32. On scrupulous reading of this Ex.P.1 and 2, they reveal that, based upon the investigation report submitted 35 Spl.CC No.171/2009 by the Vigilance Cell, this PW1 lodged a complaint as stated supra.
33. In the cross-examination, directed to this PW1, he states as under:-
"Personally he did not see the loan applications. I lodged the complaint before the CBI only on the basis of the investigation report done by our Vigilance Department."
34. Thus it is very much clear from the evidence of this PW1 that, before filing complaint, he has not seen the loan applications submitted to the State Bank of Mysore. It is further elicited that, circular and guidelines have been issued by the Central Vigilance Commission is binding on the State Bank of Mysore. Said document is confronted to PW1 and marked as Ex.D.1. In the cross-examination, PW1 categorically admitted that "every lending had a inherent risk of default, likewise every loan sanctioned is a commercial decision." Thus, this PW1 states whenever bank lends loans, there is inherent risk of default. So every loan sanctioned is a commercial decision. He further 36 Spl.CC No.171/2009 admits that, the then Chief Vigilance Officer of the Bank has to verify the records and find out as to whether the case is of vigilance angle or non-vigilance angle. He says that as per circular of Head Office, Control Return has to be submitted. He states that he is not aware of the fact in this case that, before the cheque discount facility is granted, there was a mortgage created by the borrower in favour of the bank." He has not stated in the complaint or before the I.O. , that the partners and directors of the said companies submitted bunch of loan applications. So to the extent of filing a complaint, the evidence of PW1 is to be accepted. In the cross-examination, he has given so many admissions. I am going to discuss about said admissions in further paras. So, on the face of it, the evidence of PW1 is to be accepted with regard to the filing of the complaint based on the investigation report being submitted by the I.O.
35. PW2 B.Ramakrishna, retired DGM of State Bank of Mysore. He states that, he worked in the capacity of Assistant General manager in the Regional Office, 37 Spl.CC No.171/2009 Benglauru. He has spoken before the court about the procedures being followed by each branch of State Bank of Mysore while granting housing loans, such as receipt of the loan application from the borrower, demanding documents like income and KYC documents and even he states that, the Branch Manager has to ensure end use of funds for the purpose for which the loan was sanctioned. He says that so far as project loans are concerned, the bank will sanction the loan on need base limits as per the bank scheme to the developer/builder at the commercial rate of interest which is higher than the loan sanctioned for the individual housing loans. He says that at that time, commercial rate of interest was varying from 13.75% to 14.5%. At the same time, rate of interest for individual housing loans was at 8.5% p.a. He says that the development cost includes that the builder has to purchase the land, develop the layout by laying the roads, drainages, electricity connections, etc. He says that in the present case, if the loan sanctioned to the builder, the rate of interest would have been at 13.75% p.a. Whereas the loans are sanctioned at 8.5% to the various 38 Spl.CC No.171/2009 borrowers , the difference of interest rate is called as a opportunity cost loss to the bank. Thus it is the evidence of PW2 and also other officials of the bank that because of granting loan to the individual borrowers charging interest at the rate of 8.5% p.a. and if the loan was granted in favour of the builder or the developer, the rate of interest would have been 13.75%. Therefore, this difference in between 8.5% and 13.75% is the opportunity cost loss to the bank. Whether, this submission of the prosecution is to be accepted or not, we have to read the other evidence being placed by the prosecution.
36. He further states that, by arranging such loans, the bank sustained opportunity cost loss to the tune of Rs.34 lakhs. Between 2003 to 2006 there was releasing of housing loans to the extent of 2.47 crores towards development cost in respect of M/s. Thrishul Enterprises, whereas no development has taken place. An amount of Rs.83 lakhs was released towards cost of of land to these accounts. Thus he says that difference of rate of interest 39 Spl.CC No.171/2009 5.25% is the opportunity cost loss comes to the tune of around Rs.34 lakhs.
37. He further says that "in routine course branch cannot purchase cheques more particularly local cheques. In case the customer wants a cheque purchase limit, the bank manager has to make proper assessment of the cheque purchase limit of the customer and take adequate collateral security." He further states that, "in this case accused No.1 purchased cheques of accused No.6 firm routinely, on various occasions cheques were dishonoured, the same was not reported to the regional manager who is controlling authority. He identifies housing loan files, cheques purchase register, discounting of bills, etc.
38. This PW2 have been thoroughly cross-examined by the counsels of accused No.1 to 7. In the cross- examination directed to PW2 by counsel for accused no.1, he states that, without going through the records he cannot say what was the amount due to the branch when the file was handed over to him. He admits that the I.O. did not enquire him about the recovery of loans in this case. 40 Spl.CC No.171/2009 Further, he admits that, opportunity cost is a notional calculation. He admits that, this opportunity cost has not appeared in the balance sheet or in the audit report. He further admits that, when his statement was recorded by the I.O., he guessed the opportunity cost loss to the bank and gave his opinion. He further admits that this opportunity cost loss is based on several factors like rate of interest, place of lending etc. Thus without going through the records, this PW2 has spoken so many evidence in his examination-in-chief and admission given by this PW2 are against the examination-in-chief spoken to by this witness.
39. It is further elicited in the cross-examination of this PW2 that, when a new branch is opened, it has to start its business with collection of deposits and lending respectively. He further admits that, considerable time will take to reach the profit position when a new branch is opened. These factors will be considered while opening a new branch. He further states that, as per the plan of regional office, a branch was opened at Gandhinagar, it has to reach profit level within one year. Margin money will be 41 Spl.CC No.171/2009 collected on the basis of estimated cost of the project. When he visited the Gandhinagar Branch, he examined the control return register. He has not prepared the list in respect of non-submitting of control returns by accused No.1 In respect of 75 loan applications, the loan was lent by the branch with interest at the floating rate of 11.25% p.a., equally in respect of some housing loan interest rate was 12.2% floating rate. So, he has given different evidence in the cross-examination which goes against to the case of the prosecution.
40. PW3 B.K.Venkatesh Murthy is AGM, SBI, St.Marks Road Branch, Bengaluru, has come before the court and says that he worked as Manager Vigilance at State Bank of Mysore, Vigilance Department. On the directions of the PW1, he conducted preliminary investigation at SBM, Special Personal Banking Branch at Gandhinagar and submitted a preliminary investigation report in the month of May 2006 which is marked as Ex.P.3, he has put his signature as per Ex.P.3(a). Along with his 42 Spl.CC No.171/2009 report he has annexed six documents which are marked as Ex.P.3(b). I have scrupulously perused said report.
41. According to the evidence of PW3, he has inspected 56 housing loan accounts of M/s. Seven Hills Properties Pvt Ltd., and M/s. Thrishul Enterprises and that of Asthra Developers. His initial finding was that, salary certificates obtained from borrowers was not verified and the same are fake. So it is stated by him that the accused No.1 being the Manager of the Bank, did not verify the salary certificates and they are fake. He further says that before undertaking investigation by him, the Regional Office has sent 30 housing loan application and documents etc., of the borrowers who approached for loan by the Employees of Railway Department.
42. Further this PW3 says that, he discounted cheques of Seven Hills Properties Pvt Ltd., and also in the name of accused No.2 beyond his discretionary powers. He says that, discretionary power given to accused No.1 was Rs.4 lakhs only with regard to discounting of cheque. He states that, however, this accused no.1 discounted cheques 43 Spl.CC No.171/2009 of higher amount to the tune of Rs.25 laksh and 50 lakhs etc. Thus he states that, there is dereliction of duty by accused No.1. He admits about writing letter as per Ex.P.4. So also Ex.P.5 another letter. According to him, he verified the above documents before submitting his report and gave a finding in his report that the housing loan accounts were not conducted at the branch as per the guidelines of the bank. All the deficiencies have been mentioned in his report.
43. This PW3 is also directed with severe cross- examination. It is elicited that except Ex.P.3, he did not submit any other investigation report in this case. He admits that this, Ex.P.3 does not contain the details of the documents inspected by him. He says that, it is a preliminary report and it will be followed by detailed investigation report by the vigilance department. He further admits that, in Ex.P.3 he mentioned that the branch has sent control returns in all the cases of housing loans sanctioned.
44 Spl.CC No.171/2009
44. Either PW1 or PW2 have spoken before the court about the receipt of the loan application by this Gandhinagara Branch of State Bank of Mysore, which were received at loan utsav conducted between 4.11.2005 to 6.11.2005. This PW3 has not spoken anything with regard to loan utsav and receipt of loan application in his examination-in-chief. In the cross-examination he says that, so many loan applications received in the Loan Utasv and he identified Ex.P.150. He says that loan utsav was organised, which is a function to attract different customers to different bank schemes.
45. It is the defence of the accused that, in the loan utsav, when the customers contact for any loan, in principle stating that the loan, will be sanctioned after fullfilling of all the terms and conditions of the bank. He admits that in principle the loan will be sanctioned by the bank by mentioning the branch name to whom they have to approach for further guidance. He identifies Ex.P.150(a and b) the letters sent to that effect to the branch. Certain replies have been sought by the regional office directing 45 Spl.CC No.171/2009 accused No.1 to submit his reply. But this PW3 says that he does not know whether accused No.1 has submitted any reply to the letters Ex.P.4 and 5. He further says that he is unaware of the fact that accused No.1 replied to the regional office stating that accused No.2 was the then Minister who has given highest deposits of Rs.20 crores to the branch and therefore, he is a valued customer. Further he speaks ignorance about providing certain facilities being granted to this accused No.2.
46. It is the defence of the accused persons that, this accused No.2 is a valued customer having given highest deposit of Rs.20 crores and therefore, he sought some facilities of discounting of bills, etc., and that has been provided by accused No.1. Hence, there is no dereliction of any duties being did by the accused in the manner alleged by the prosecution as per defence of accused No.1. This PW3 has deposed ignorance to that effect.
47. PW3 has further deposed ignorance that, all the loans involved in this case are covered with mortgage of 46 Spl.CC No.171/2009 the property. When it is the specific case of the prosecution that, whenever a loan is being granted, this accused No.1 has not followed the procedures. But whether the loans have been granted by accused No.1 by creating mortgage on the property, PW3 is unaware of the same. Ex.D.3 is confronted to this witness and as per this Ex.D3 the projected deposit was Rs.24.52 crores and actuals are Rs.31.62 crores. The budgeted advance are 12.60 crores, actuals are Rs.30.08 crores. This shows the efforts of Accused No.1 in improving the business of the branch. But this PW3 says that, he do not know the auditors who audited the branch reported that the branch needs more staff to assist accused No.1.
48. It is elicited that, periodically this Gandhinagar Branch of State Bank of Mysore, undergone audits and auditors have reported to the higher authorities that this branch need more staff as accused No.1 is active Chief Manager and has done so much business for the State Bank of Mysore then. For this, he has deposed ignorance. He is unaware of the fact that in this case the entire loan 47 Spl.CC No.171/2009 amount was repaid. He being the responsible officer of the State Bank of Mysore, must know that whether entire loan has been recovered or not. But this PW3 deposed ignorance. He also deposed ignorance about the discounted cheques have been realised. Thus PW3's evidence has to be believed to the extent of conducting investigation and submitting report. According to him, based on the report collected by the I.O. and also comparison of salary slips, he has commented as per Ex.p.3. So to the extent of submitting a report, his evidence is to be accepted.
49. PW4 K.R.Vasudeva is another official of the bank worked as Manager cum Investigation Officer in the Vigilance Department of State Bank of Mysore. According to his evidence, his duty was to undertake preventive vigilance visits to branches as per the directions of the Chief Vigilance Officer. In the year 2006, he visited SPB branch, Gandhi nagara on the instructions of CVO for investigation of housing loan applications and cheque purchases pertaining to the said branch. Along with him 48 Spl.CC No.171/2009 CW5 also accompanied him. He was confronted with report being submitted as per Ex.P.7. Said report is also signed by CW5 Manjunath. He says that, during the investigation he has examined housing loan documents of individual borrowers of Seven Hills Properties Pvt Ltd., and Thrishul Enterprises. It is so revealed that, the KYC norms were not followed. Salary certificate and income returns were not verified by the branch. He says that accused No.1 financed accused No.6 i.e., M/s. Thrishul Enterprises regarding the housing loan like that of Seven Hills Properties Pvt Ltd. He noticed deficiencies in respect of the borrowers documents.
50. It is further elicited from the mouth of this PW4 in the examination-in-chief that, the branch has purchased cheques held in the name of accused No.2 D.Sudhakar, accused No.6 Thrishul Enterprises, accused No.4 - K.V.Hanumappa Reddy, accused No.7 - Seven Hills Properties Pvt Ltd., and M/s. Seven Hill Distilleries. Accused No.1 purchased cheques valuing more than the discretionary powers conferred with him, which are more accommodative in nature. The limit fixed for purchasing 49 Spl.CC No.171/2009 the cheque to accused No.1 was Rs.4 lakhs, but this accused No.1 purchased cheques beyond his sanctioned limit i.e., Rs.13.5 lakhs, Rs.25 lakhs etc. He identifies Ex.P.7.
51. It is further stated by this PW4 that the explanation was called from accused No.1 regarding the irregularities in the cheques purchase. Accused No.1 has submitted his explanation. Finally his finding during the investigation was that housing loans were sanctioned without verifying the salary certificates, KYC norms were not followed. He identifies documents produced by prosecution commencing from Ex.P.7 to 148 being the loan applications processed at the time of granting loan by accused No.1. So also he has verified cheque purchases.
52. His cross-examination so directed is worth reading. It is elicited that during his tenure as Chief Manager of the then State Bank of Mysore, he conducted investigation of all the loan accounts pertaining to Gandhinagara Branch. He admits that, whenever he noticed non-receipt of confirmation from the employer with 50 Spl.CC No.171/2009 regard to salary certificate, he considered that as fake salary certificate. Thus according to his evidence, whenever, there was no confirmation letter issued by the employer with regard to the salary certificate, he considered them as fake salary certificate. He further admits that, he personally has not made any efforts to ascertain the genuineness of the salary certificates so produced by the borrowers. Thus, altogether a different evidence is spoken to by this witness.
53. This P.W.4 is confronted with Ex.P.153, which shows that, on further enquiries of the branch, M/s.Kar Mobiles name is shown and said company is in existence. Salary certificate of employee of this Kar Mobiles is produced in this case. The employees so stated by the bank are not the employees of the said M/s.Kar Mobiles.
54. He further states in his cross-examination that, prior to submission of his report also, there were two reports i.e., from two auditors i.e., one from internal investigation and another external verification audit report. Defence manual is produced as per Ex.D.7. According to 51 Spl.CC No.171/2009 him, he was asked by his higher authorities only to find out the loop holes in the functioning of Gandhinagara Branch. He admits that the said branch was opened on 4.8.2003. He further states that, it may be true that during his tenure as Chief Manager of the said branch he has sanctioned 700 loans. Out of those loans, there were 593 housing loans. As per his report, first discounting was done by accused No.1 on 8.9.2003 by exceeding the discretionary limit. He admits that accused No.1 during his tenure has discounted cheques not only of accused No.2 to 6 and 7, but also to others exceeding the discretionary limit. So this evidence of PW4 goes a long way in this case. In this case, accused No.2 to 7 have been arrayed as accused in this case, who have taken benefit of discounting of cheques and discounting of bills. In addition to accused No.2 to 7, others also have got the said benefit of discounting of cheques and bills exceeding discretionary limits. But they have not been made as accused in this case.
55. This PW4 admits that, such exceeding of discretionary limit is not included in his investigation 52 Spl.CC No.171/2009 report. He personally had not addressed any letters to the employers of the borrowers, who sought loan from Gandhinagar Branch. He admits that, wherever he has worked as the housing loan sanctioning authority, he personally has not gone to the employer of the prospective borrower to ascertain the genuineness and authenticity of salary certificates furnished by the borrowers. But expects this accused No.1 in the same capacity as Manager, has to visit the employer to ascertain the genuineness of the salary certificate. It is quite against the practice being spoken by this PW4.
56. It is further elicited in the cross-examination of PW5 that, as per his report, entertaining of fake salary certificates by the said branch was noticed by them for the first time in the month of December 2005. He admits that after December 2005, there was no disbursement of loan to accused No.6 and 7. As per his report, it was noticed by the bank about the alleged fake salary certificate and it was informed to the developers. The developers were requested by the bank to come forward to recover the loan 53 Spl.CC No.171/2009 disbursed. The developers accordingly have agreed to come forward to help in the loan recovery. So this evidence of PW4 is quite against the very case made out by the prosecution.
57. P.W.5 by name M. Sankaran being retired Chief Manager states in his evidence that, from 2003 to 2006 he worked as Chief Manager Audit (Mobile) having head quarters at Bengaluru under the control of the inspection department. According to his evidence, as per the directions of the inspection department he audited the accounts of SPB Branch, Gandhi Nagar for the period commencing from 19.10.2015 to 30.12.2005. He also audited the loan advance port folio department and also other areas. He further states that, at the relevant time accused No.1 was the manager of the said branch. He identifies letter being issued by the management dated 30.12.2005. It is duly signed by him. Further, he states that the salary certificates furnished have not been verified by him. After sanction of the loan whether sites have been registered in the name of borrower getting the khatha 54 Spl.CC No.171/2009 certificate by the borrower, Encumbrance Certificate and Tax paid receipts have not been obtained.
58. It is the specific case of the prosecution that, the salary certificates so obtained are fake certificates. But this P.W.5 has not at all verified any salary certificates. He further states that, purchase of local cheques/ demand drafts exceeding the discretionary power vested with the branch Manager. He further states that, the cheques belongs to M/s Seven Hill Distilleries, Seven Hill Properties, Bharath Raj A., H.S. Suresh, D. Sudhakar and H. Mahadev were purchased without considering the regular purchase limit.
59. This P.W.5 has been subjected to intensive cross- examination by the counsel for accused No.1 to 7. It is elicited that he also has seen the previous audit report for the period as on 21.09.2004, wherein, it is observed by the auditors that to match the speed of the Chief Manager, some more staff is to be provided to Gandhi Nagara Branch. He admits that, in all the aforesaid transactions the legal opinion was obtained and kept in the files. He 55 Spl.CC No.171/2009 further admits that, the Gandhi Nagar Branch has promptly sent the control reports in time, but say that though the control reports are sent in time, he admits that controlling authority has not sent the comments and observations in respect of 110 loan accounts.
60. On reading the admissions of this P.W.5, it shows that the accused No.1 being the Manager of SPB Branch, Gandhi Nagar was very active and to cope up his speed, it is observed by the auditors that, some more staff is to be provided to Gandhi Nagar Branch. The act of accused No.1 in improving business of the bank is not questioned by head Head Office. Even there is observations to provide more staff.
61. This P.W.5 says that, in all the aforesaid transactions the legal opinion was obtained and kept in the files. So after obtaining the legal opinion only, the loans have been sanctioned and disbursed. It is the case of prosecution that, this accused No.1 did not send the control returns in time. The P.W.5 admits that, the accused No.1 has sent the control reports in time and the 56 Spl.CC No.171/2009 controlling authority has not sent the comments and observations in respect of 110 loan transaction accounts. So this shows that, the act of accused No.1 of granting loan to the borrowers, and other transaction, so also discounting of bills must have been ratified by the controlling authority. Because of the same, no comments were sent and no observations were made with regard to control returns submitted by the branch. He further admits in his cross-examination that, the acknowledgements are received at the time of audit. The control returns are submitted to the higher authorities just to inform the higher authorities about what is happening in the branch. That himself and controlling authority had knowledge of improvement in the business of the bank.
62. It is further stated by P.W.5 that, he has observed in his report that in respect of Hegde Nagara project most of the construction is completed. It is further elicited in the cross-examination by the counsel for accused No.2 to 7 that, his report reflects about the stages of each construction and their respective stages individually. So the 57 Spl.CC No.171/2009 head office had knowledge about the project being launched by the accused No.6 and 7. Thus the evidence of P.W.5 is rather helpful to the defence but not to the prosecution in any manner.
63. P.W.6 by name M.L. Chandrashekar is the retired Assistant Chief Manager, who has worked as Chief Manager between 2004 - 2007 in the audit department. According to his evidence, in the year 2006, he instructed the inspection department to conduct audit of SPB Branch, Gandhi Nagar. He conducted audit of the said branch for the period commencing from 09.11.2006 to 19.12.2006. At that time, C.W.9 B.C. Muralidhar was the Chief Manager of the said branch. According to him, audit was conducted in respect of the housing loan accounts sanctioned and disbursed in various layouts developed by Seven Hill properties, Astra Developers and other developers by the branch. He speaks that, at the first instance itself lump sum amounts exceeding costs of sites including part of development and construction cost have also been released without production of the above said records. In almost all 58 Spl.CC No.171/2009 the housing loan accounts estimates, approved building plains, license, khatha certificates, latest tax paid receipts of the borrowers were not available. He speaks about non providing of civic amenities, and no site number were assigned. So also he says that, there were no availability of Pre-sanction and post-sanction inspection reports available in the files. Further he states that, the salary certificates issued by the Southern Railways were fake as per the the report sent to the regional office. Further he states that, though the balance of loan was outstanding in respect of two borrowers the sale deeds were released to the borrowers and their names are Syed Rizwanulla and M. Kumar. These loan were sanctioned in the year 2003 and 2005 by accused No.1.
64. In the cross-examination, he admits that after formation of layout and till the first sale of the site is being done, till then no khatha is effected in the revenue records. So this admission of P.W.6 shows that the khatha will be effected only after the execution of the sale deed. Records were produced by the borrowers and not obtained by the 59 Spl.CC No.171/2009 accused No.1. He says that, based upon the documents avilable in the branch, he concluded his audit. In page 6 of the cross-examination, this P.W.6 says that, during his tenure as Manager of the SBM branch, he has not got the confirmation from the employer about the issuance of salary certificate of his employee, he tried to ascertain their genuineness. He being the Manager of the branch and he is expected to get the confirmation of salary certificate. In the examination-in-chief, he says that the salary certificates were fake. But no documents were obtained from the employers of respective borrowers to ascertain the genuineness of the salary certificates. So this evidence of P.W.6 will not help the prosecution case in any manner.
65. P.W.7 B.C. Muralidhar is the retired Assistant General Manger of SBM Bank, having worked as Chief Manager of SPB, Gandhi Nagar branch from 17.01.2006 to 11.06.2007. According to his evidence, he was instructed to verify all those housing loan accounts and directed to check as to whether the borrowers of the loan are actually 60 Spl.CC No.171/2009 employed in the organization and whether salary certificates submitted are genuine. He says that, he wrote letters to several organizations like HAL, BMTC, Foreman Training Institute, KPTCL Training Institute and South Western Railways. But he says that, he did not receive any reply from the above said organizations. He reported the same to his AGM. He identifies the report as per Ex.P.155. He identified other documents from Ex.P.156 to P.180.
66. He further says that, the revenue authorities have conducted mahazar by visiting projects and noticed that sites were assigned with numbers in Kallagopanahalli the layout stated to have been formed by M/s Seven Hills Properties. He says no layout was formed in the above said survey number, only site numbers were assigned. Other facilities like roads, drainage connection, sanitary, water and electricity connections were not found. He visited Singapura Village of Yelahanka Hobli. Thus in his presence mahazars are conducted in Sy.No.60 and 70 of Singapura village.
61 Spl.CC No.171/2009
67. In the cross-examination he says that, in Ex.P.158 he has mentioned "salary particulars to be confirmed". Further he says that, as per his observations in Ex.P.158, he addressed letter to the respective employers of the borrowers to provide information with regard to the authenticity and genuineness of the salary certificates furnished by the borrowers. But he says he has not received any reply from employers. According to him oral information has been received by him. He says that, he has not personally verified any of the salary certificates furnished by the respective borrowers. This evidence of P.W.7 is against the case of the prosecution.
68. He further says that, based upon the report of C.W.15 Nagendra, he has issued Ex.P.158. Thus no personal inspection has been done by P.W.7. He says that without seeing the records he cannot say the total extent of survey number 18/2 and 19 of Kallugopanahalli village. He further says that, at the time of his visit to the aforesaid survey numbers he has not verified total sites being formed in the layouts. But he says that he personally visited the said 62 Spl.CC No.171/2009 layouts. He do not remember about visit of all the individual sites.
69. Further it is elicited in the cross-examination that, they have not visited individual sites formed in the aforesaid survey numbers. He admits that, they went inside the layout, because houses were constructed in the layout. So this evidence of P.W.7 shows that, construction was in progress and some of the houses were constructed which were ready for occupation.
70. He further admits that when he took charge as Manager of Gandhi Nagar branch, some borrowers approached his branch to repay the loan amount and asked their title deeds back. He further admits that even brokers by name Mohammed Amanulla and others approached the bank with some third parties who were not borrowers and stated that they are willing to take the plots by closing the bank loans. He further states that, this fact was intimated to accused No.2. He further admits that, some brokers insisted to provide photo copies of the title deeds. He further admits that, a meeting was conveyed at the 63 Spl.CC No.171/2009 regional office and the accused No.2 was instructed to obtain the power of attorney of the borrowers and letter of release signed by the borrowers. Further this P.W.7 admits that, afterwards representative of accused No.6 and 7 used to approach the bank with GPA or letter of authority with a request to allow them to repay the loan and take away the documents. He further admits that even the borrowers used to visit the branch to put the signature acknowledging the receipt of the title deeds.
71. He further says that accused No.2 informed the bank not to entertain any borrowers or brokers as developers will help the bank in recovering the loans, so advanced. So this admission given by this P.W.7 will not help the case of prosecution in any manner, but help the case of defence. When it is specific case of prosecution that the accused has exceeded discretionary limits, but whatever transaction did by accused No.1 have been completed on account of borrowers repaying the loan amount. So when the transactions have been effected by accused No.1 and accused No.2 informed the bank not to 64 Spl.CC No.171/2009 entertain any borrowers or brokers as the developers will help the bank, it is argued that therefore, there is no point in submitting that there is misappropriation being done by the accused No.1 in any manner as alleged by the prosecution. There is some substance in the submission of counsel for accused.
72. P.W.8 Venugopal is the retired employee of SBI and in the capacity of Assistant General Manger of Region- IV of Bengaluru he has done so many duties. He speaks of circulars have been issued by the bank as per Ex.P.181. He speaks about the procedures with regard to granting of house loan, purchase of bills, discounting of cheques/ bills etc. He says that, during the year 2004 the financial power of the said bank was Rs.35 lacs and regarding cheque purchase it was Rs.4 lacs. He identifies inland bill register showing entries of inland bill discounted by SBM, SPB, Gandhi Nagar branch commencing from 16.09.2005 to 08.04.2006. The said inland bill register is marked at Ex.P.192. According to his evidence, the documents so produced by the prosecution as per Ex.P.192 and other 65 Spl.CC No.171/2009 documents are marked at Ex.P.192 to P.196, P.179, P.180, P.178, P.199 etc., shows about the entries being made with regard to discounting of cheques and purchase of bills. According to his evidence, these documents show about violating norms of the bank by accused No.1. He further states that the borrowers have given certain title deeds to the bank and the same have been marked at Ex.P.149. Ex.P.8 and P.10 are confronted to him and he says that, he found violation so did by Natasha Blossoms. Like wise he identifies all the documents commencing from Ex.P.9 to P.202 being the files maintained by the bank with regard to to granting of house loans and others.
73. This P.W.8 has been directed with intensive cross-examination. He says in the cross-examination that, during his tenure as a Manager/ Chief Manager, he sanctioned housing loans to the borrowers. Generally the process of sanctioning loan takes time about 15-20 days. He says that he has not gone to every employers to ascertain about the genuineness of the salary certificates, 66 Spl.CC No.171/2009 so produced by the borrowers. He says that, when he was the Manager/ Chief Manager etc., he used to delegate the authority to approach the office to get the legal opinion to his junior officers. He admits that, during his tenure at Gandhi Nagar branch, there was no Field Officer posted. He further admits that, the said SPB Gandhi Nagar branch used to send control returns to the Regional Office and this control returns contain transactions, names of borrowers, amounts so sanctioned whether it is within discretionary power or not. The purpose of sending the control returns was to verify, whether the branch has observed all the norms and also sanction is within the bank powers.
74. Thus, this P.W.8 admits that, as a Manager or Chief Manager, he never went to the employer to ascertain genuineness of the salary certificates produced by the borrowers and he has delegated powers to get legal opinion to his junior officers. According to his evidence, within one month of noticing the control returns, the Regional Office has to take appropriate action. But in this case, it is the evidence of the witnesses that regarding 67 Spl.CC No.171/2009 exceeding discretionary limit by accused No.1, no action is initiated by the Head Office. But it was directed to accused No.1 not to entertain any discounting of cheques/ bills till realization of earlier discounting of cheques/ bills. That means, the Head Office was knowing about the activities of accused No.1, perhaps Head Office has ratified the acts of accused No.1. He has been identified as aggressive banker.
75. It is further elicited in the cross-examination that, whenever a new branch is opened, it requires time to earn profit. It is further elicited that, to attract the borrowers, their bank used to conduct loan utsavas. It has come in the evidence of witnesses that most of the loans being entertained by accused No.1 were granted in the loan utsav and the other formalities have been fulfilled as the loan application were sent to Gandhi Nagar branch. It is elicited that, in the loan utsav, the borrowers and builders participated.
76. It is argued by the learned Public Prosecutor that, beyond the bank's jurisdiction, accused No.1 has granted loan. Therefore, it amounts the dereliction of 68 Spl.CC No.171/2009 duties. But P.W.8 says that, in Bengaluru city, there is no command area restriction. He was confronted with Annual Appraisal report marked at Ex.D.4. So this report do not disclose questioning accused No.1 granting loan outside his jurisdiction. The Ex.D.4 is very much silent to that effect.
77. It is further elicited that, when audit is conducted by a particular branch, the whole acocunt system is being scanned and audited. During the financial year of 2004-05, as per the performance of the said bank the auditors submit the report with A+ grade. Even in the year 2004-05 the said A+ is awarded to the SPB branch, Gandhi Nagar, wherein this accused No.1 was the Chief Manager. He admits that, during their review, they ascertained that who are all the borrowers and what was the quantum of loan sanctioned. So also major deposits by major depositors which was within the knowledge of inspecting authority or vigilance department. At one breath, the Head Office awards grade A+ to the said branch and appreciates the work culture of accused No.1, 69 Spl.CC No.171/2009 call him as aggressive banker. At another breath, questions the act of accused No.1 alleging exceeding his discretionary limits and granting of house loans by accepting the documents submitted by the borrowers in which salary certificates are alleged to be fake. There is no consistency in the evidence of the witnesses.
78. He admits that, during the year 2004-05, it is found that one Sri. Ronald Collaso and accused No.2 D. Sudhar were the major customers of the aforesaid branch. He deposed ignorance about bringing of Rs.60 crores deposit by these two persons to the aforesaid Gandhi Nagar branch. He further deposed ignorance that, whether the Manager of the bank at a relevant time addressed a letter to the Regional Office stating that, the aforesaid two persons are the major customers. In this case, the accused No.2 is a major customers as per the defence. Even other witnesses have admitted the same with regard to deposits made by this accused No.2.
79. This P.W.8 further admits that, every bank has got a target of disbursing loan as well as bringing deposits 70 Spl.CC No.171/2009 every year. He admits that, accused No.1 exceeded the target than the required target. Therefore, he has been awarded with 40 marks out of 40. It has come in the evidence of the witnesses that, the said Branch was having dearth of staff. It is alleged that, accused No.1 has violated norms of the bank. Even this P.W.8 admits that, this accused No.1 was also issued a letter dated 06.04.2005 about his performance in the year 2004-05. The said letter is marked at Ex.D.5, wherein we find appreciation of work of accused No.1. This P.W.8 further admits that in the said branch, there was no specific loan officer.
80. It is argued by the counsel for accused No.1 that, it was one man show and work of this branch has been carried out by single man. He submits that, though the Head Office appreciated the work of accused No.1 and as the said branch has earned sufficient profit, but false complaint is filed against accused No.1 and others. There is some substance in the argument of counsel for accused No.1.
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81. This P.W.8 further deposed ignorance that, whether the auditors of the bank in their report observed about the growth in the business of the branch and requirement of more staff. He being responsible officer of the bank has deposed ignorance.
82. A question is directed to P.W.8 that, whether he has sent any letter to accused No.1 to stop discounting of cheques and purchase of bills?. The answer was whenever it was found that the accused No.1 was exceeding his discretionary limit, he was issued with letter calling upon him to stop such discounting of cheques and purchase of bills. It has come in the evidence of other witnesses that, letters have been issued to accused No.1 to stop discounting cheques and purchase of bills till realization of earlier bills and cheques. That means, there is ratification of conduct of accused No.1.
83. The counsel for accused No.1 has elicited in the cross-examination that "majority of the mistakes pointed out by the auditors were curable". So this admission of P.W.8 goes long way. This P.W.8 is also ignorant that liability 72 Spl.CC No.171/2009 fastened on the borrowers/ beneficiaries is cleared. It is the defence of accused that, whatever loans being sanctioned by this accused No.1 have already been cleared. Even it has come in the evidence of witnesses that, there was opportunity loss being sustained by the bank because of sanctioning house loan. That opportunity loss is not found in the books of accounts of the bank. This P.W.8 further admits, that if we look into the number of working days in the year and number of loans sanctioned, he says that, accused No.1 can be considered as aggressive banker. He admits that, because of dearth of staff, some irregularities have occurred. So this evidence of P.W.8 falsifies the very case of the prosecution.
84. P.W.9 V. Sundar Rajan is the Chief Manager, Industrial Finance branch, SBI, Residency Road, Bengaluru was the Deputy Manager. He says in his evidence that on verification of the salary certificates, employment details of the borrowers and other documents being collected by the SPB branch are not proper documents. According to him, he verified 20 salary certificates, address proof issued by 73 Spl.CC No.171/2009 different authorities being submitted by the borrowers at the aforesaid branch etc., and he verified other documents also. During verification, according to him, the salary certificates were found to be fake and not genuine. He identifies certain document at Ex.P.203(a),(b),(c). But in the cross-examination, this P.W.9 says that he has not received any written information from BESCOM authorities regarding issuance of fake salary certificates. If such an evidence is brought on record through this witness, it is hard to believe his examination-in-chief as he has not got any written information from BESCOM regarding falsity of slary certificates. Hence, the evidence of this witness may not help the case of prosecution.
85. P.W.10 Anand, being retired bank official states in his evidence that, he was posted to SPB branch, Gandhi Nagar on 24.05.2004 as Deputy Manager, Accounts. He worked in the said bank till 10.07.2007. At that time the accused No.1 was the Chief Manager. He speaks of procedures of being followed with regard to grant of loan etc. This evidence is not disputed by the defence. 74 Spl.CC No.171/2009
86. He further states in this evidence that accused No.1 had discretion to purchase cheques to the extent of Rs.4 lacs, but he exceeded. He says that, whenever there is exceeding of discretionary limits, this P.W.10 has brought to the notice of this accused No.1. He identifies 8 Demand Drafts marked at Ex.P.204 to P.211. He also identifies 52 cheques marked at Ex.P.212 to P.263. All these cheques bear the initial of accused No.1. Some cheques bear his signatures on the back leaf. Even he identified Ex.P.132 to 136 being the transfer debit, credit challan vouchers signed by accused No.1. In all, there are 62 documents. According to his evidence, in all there are 179 documents marked in this case and the payment authorization have been done by accused No.1 alone. According to him, accused No.1 has acted beyond his discretionary limits while purchasing cheques.
87. In the cross-examination he admits that, if the cheque purchased is not realized as per the norms of the bank, it attracts proportional interest with regard to the number of days delay. In this case, no evidence is placed on 75 Spl.CC No.171/2009 record by the prosecution that, this realization of interest was not at all done by this SPB branch, Gandhi Nagar. All the cheques/ bills so discounted by accused No.1 have been realized as per the evidence spoken to by the witnesses. Even he admits that as per the procedure being adopted by the bank, whenever there is delay in realization of the bills discounted, the norms of their bank provide for recovery of over due interest. He admits that in respect of three discounted bills belongs to M/s Seven Hills Distilleries their bank has recovered over due interest. So when over due interest is already realized or recovered, how the Head Office is finding mistakes in accused No.1 is not explained.
88. It is further elicited that, in the said SPB branch, Gandhi Nagar there was no designated loan officer working in the branch. He admits that all the aforesaid transactions with regard to the house loan were processed in Loan Mela Scheme. He further admits that, in principle in the Mela itself, the loans were sanctioned. He admits that, whenever there is dearth of staff, certain irregularities are bound to occur. Thus the evidence of P.W.10 can be believed to the 76 Spl.CC No.171/2009 extent of he working with the said branch, but his evidence so spoken in the cross-examination falsifies his examination-in-chief.
89. P.W.11G.P. Prabhuswamy, is the retired official of SBM. During the year 2009. He worked in the bank as Chief Manager, Region-V, Mysore Zone. He also worked as SBM Chief Manager (Advances) Region-IV at Bengaluru from June 2005 to June 2006. He says that, control return means loan sanctioned by using the discretion of the branch manager and sending the same to the regional office for approval. This fact is also spoken by other witnesses. He says that, he dealt with control returns submitted by Gandhi Nagar Branch, when accused No.1 was the Manager at the relevant time. He says, on receipt of the control returns, it is the duty of the regional office to verify and ascertain the loan sanction as per the norms of the then State Bank of Mysore. He says, while verifying the returns being submitted by the Gandhi Nagar, it is noticed by him that, the salary certificates of the borrowers to whom the loans were sanctioned by accused No.1 were 77 Spl.CC No.171/2009 with discrepancies. According to him, there must be difference in quantum of gross salary and net salary.
90. It is the case of prosecution that, the salary certificates were fake. But this P.W.11 says that, he found discrepancies in the salary certificates. He says that, he went to the Railway Office and met one Nagabhushan, Personal Officer. On enquiry he denied for having issued the salary certificates to the employees who have sought loan from Gandhi Nagar branch of their bank. So also went to the office of Water Board and enquired about the genuineness and authenticity of salary certificates. The said Water Board authority also denied for having issued salary certificates towards availment of housing loan to its employees.
91. According to the evidence of P.W.11, there was direction by Zonal Office to conduct Joint Inspection of the site along with one Subramanya from Zonal Office and Mr. Muralidhar, the then Branch Manager of Gandhi Nagar branch. They were accompanied with one Ramegowda, the approved valuer. Accordingly, they conducted joint 78 Spl.CC No.171/2009 inspection of the Bidadi project promoted by Seven Hills Properties Private Limited and Singapura Project developed by Thrishul Enterprises. They submitted report that how the loan so sanctioned was in excess of the discretionary limit to be exercised by accused No.1. He says about the valuation so taken by accused No.1 and according to him, this site measuring 30x40 feet including the development work that has been completed as per the valuation report was Rs.185 per square feet which worths out of Rs.2,22,000/-. But the bank Manager has taken the present value at Rs.775 per square feet and it is worth more than Rs.9,30,000/- He identifies these documents at Ex.P.148 with other documents marked at Ex.P.265 to P.272. These documents also contains control returns etc.
92. In the cross-examination, it is elicited that, when he was working in the controlling office, he used to receive the returns from all the branches coming under controlling office. One Ramanath was in the controlling office prior to his posting there. He says that, without seeing the returns, he cannot say how many reports he has received from 79 Spl.CC No.171/2009 Gandhi Nagar during his period in the office of controlling office. He submitted report as per Ex.P.272. But admits that Ex.P.272 is silent with regard to receipt of total number of written reports not acknowledged. Ex.P.148 shows that there is an advise to Gandhi Nagar branch to verify salary certificates and other credentials and to inform the same to their office. He is confronted with Ex.P.272. But says that, he has not sent any letters to the employers to provide information with regard to the credentials and genuineness of the salary certificates of the borrowers from the aforesaid Gandhi Nagar branch. So this evidence of P.W.11 goes against his own examination-in-chief. He was transferred in the month of August 2006. He is not aware of the returns so submiited. Thus the evidence of this P.W.11 also in view of his admissions in the cross- examination may not help the case of the prosecution.
93. P.W.12 Smt. R. Devika and P.W.13 Smt. Leela V. Prasad have came before the court to speak that at the relevant time, they were working in SPB branch as officials. P.W.12 Smt. R. Devika was a Cashier. According to 80 Spl.CC No.171/2009 her evidence, whenever there was discount of cheques and bills by accused No.1, she objected and brought to the notice of accused No.1 that he cannot exceed the limit. Accused No.1 used to say that he will look after and after all her work is a clerical duty. To the extent of she working in such branch at relevant time, her evidence is to be accepted.
94. So also, P.W.13 Smt. Leela V. Prasad has identified Ex.P.177 to P.180 being the credit challan register entries etc., No cross-examination is directed by the counsel for accused persons to this P.W.12 and P.W.13. So, to that extent of their working in the said branch, their evidence is to be accepted.
95. P.W.14 Nagendra N., is the Manager, SBI, who worked as a designated Field Officer under SBM, Gandhi Nagar branch. In the capacity of Field Officer, according to his evidence, he used to conduct spot verification, such as verification of genuineness of salary certificate, employment pertaining to the house loan account holder, conduct the site verifications, know the present state of 81 Spl.CC No.171/2009 construction before the release of the loan amount and to hand over the property documents to the borrowers after closing the housing loan accounts.
96. He says that, P.W.7 examined in this case instructed him to make verification of salary certificates and employments of the borrowers who availed housing loans being sanctioned by accused No.1. Therefore, he visited the office of BMTC, BWSSB, KSRTC, BESCOM, HAL, BEML, Foreman Training Institute along with copies of documents furnished by the respective borrowers. He verified addresses of certain private borrowers also. Accordingly, the aforesaid authorities have issued some letters stating that such borrowers are not employees of the respective organization. Therefore, he submitted report as per Ex.P.156.
97. P.W.14 has been thoroughly cross-examined by the counsel for accused No.1. He admits that his reports are not accompanied with the letters issued to the departments and confirmation reply given by the departments. The said report has been submitted to the 82 Spl.CC No.171/2009 Chief Manager, Gandhi Nagar branch and based upon that, the said branch has addressed a letter to the AGM Region- IV stating that, the salary certificates are yet to be confirmed. So, we find altogether different evidence spoken to by P.W.14 in the cross-examination. At one breath, he says that salary certificates were fake and there was a report being collected with some of the employees were not issued by the said organization. But his report is silent with regard to the reply given by the departments. Based on his report, the Chief Manager then addressed a letter to the AGM stating that the salary certificates are yet to be confirmed. So we find inconsistent, discrepant evidence. His reports Ex.P.156 and P.157 suffers from material particulars. Therefore, the evidence of this P.W.14 also may not help the case of prosecution.
98. P.W.15 Dathathri V., is a retired employee of the then SBM says in his evidence that accused No.1 used to authorize to purchase the cheques and as a computer operator, he used to make entries in the concerned computer system. He also says that, whenever accused 83 Spl.CC No.171/2009 No.1 used to exceed the discretionary limits, he used to bring to the notice of accused No.1. The accused No.1 also used to direct him to prepare the control returns. So, there is no allegations against accused No.1 that, he has not followed all the procedures of submitting control returns to the superior authorities. No cross-examination is directed to this P.W.15 by the counsel for accused persons. So, to the extent of his examination-in-chief, his evidence is to be accepted.
99. P.W.16 Smt. Shubhalakshmi J. Rao being retired employee of the then SBM has come before the court to say that, she was posted to Gandhi Nagar branch in the month of August 2003 as a computer operator. At that time, accused No.1 was the Chief Manager of the said branch. He used to order for cheque purchasing and she used to attend the work relating to cheque purchase. She further deposes that, she can identify her handwritings and she specifically says with regard to documents at Ex.P.178, P.179 and P.180 and so also Ex.P.132. She says that, sometimes, Chief Managar has exceeded limits prescribed 84 Spl.CC No.171/2009 by the Head Office. No cross-examination is directed to this witness. Even accused No.1 has not disputed about exceeding of discretionary limits during his tenure as a Chief Manager of the said branch. To the extent of her duties, so did by her during her tenure, her evidence is to be accepted. To that extent, I believe her evidence.
100. Much is argued by the learned S.P.P. that, this accused No.1 took help of P.W.17 Krishna Murthy, who is a retired from employment from the then SBM.
101. This P.W.17 speaks of processing of housing loan application of accused No.6 and 7, preparation of documents, generating of loan application at the instructions of accused No.1. It is deposed by him that, after his retirement, he is working as a consultant for banking, financial related matters. He identifies Ex.P.9 to P.131 being documents with regard to the processing of housing loan applications by him. Ex.P.8 is confronted to this witness. It is the housing loan pertaining to one H.P. Puttaswamy. According to him, the information so stated was not furnished by the borrower. This P.W.17 is 85 Spl.CC No.171/2009 thoroughly cross-examined by the counsel for accused persons. It is elicited in the examination-in-chief that accused No.1 informed him that, he has taken permission from the Regional Manager of the then SBM. Therefore, he requested this P.W.17 to fill the said challan and debit vouchers. So at the instance of accused No.1, he helped accused No.1 in preparing loan documents.
102. In the cross-examination, it is elicited that, to prepare the loan application, an officer is posted to every branch called as Field Officer. But evidently during the tenure of accused No.1, no Field Officer was posted. At one breath, the prosecution says that, this accused No.1 is an aggressive banker and has reached the target and even has shown the business more than the target being fixed by the Head Office. So, it is quite natural to expect from such manager seeking assitance to improve the business of the bank. P.W.17 has prepared the documents based upon information furnished and also documents so furnished before him. It is elicited that, after 2010, a policy is 86 Spl.CC No.171/2009 adopted by SBM to take the services of retired employees for this purpose.
103. It is argued by the counsel for accused persons that, such policy was adopted by SBM to take services of retired employees for the purpose of preparation of documents etc., perhaps, this system would have been adopted by accused No.1 long back to improve the business of the bank. This possibility cannot be ruled out.
104. It is elicited in the cross-examination that, this P.W.17 has not stated before CBI Officers that, the developers negotiated his fees and it was increased from 400 to 500 rupees. Ex.P.8 to P.131 stated supra have been collected by him from Gandhi Nagar branch. Thus, this P.W.17 has assisted accused No.1 in preparing loan documents. To that extent, the evidence of this witness is to be accepted.
105. P.W.18 P. Shankar Rao states in his evidence about visiting of Kallugopanahalli on 29.12.2018 and on the same day itself he visited Banandur Village in Bidadi Taluk 87 Spl.CC No.171/2009 to inspect the properties owned by the developers. He says in his examination-in-chief that, he did not find any constructions whatsoever has taken place on any site in the entire project. But in the cross-examination he says that, he saw creation of sites there. He identifies Ex.P.159 to P.161. According to him, during investigation, he has furnished documents to the CBI Officers. He identifies Ex.P.278 and P.292 respectively with regard to the production of documents before the CBI Officials.
106. If the cross-examination of P.W.18 is perused, he says that, he was not aware about the mentioning of measurement done by the officials in the aforesaid mahazars. He do not remember on which date Ex.P.273 and P.274 were handed over to the bank. He further deposes that without seeing the documents, he cannot say that 43 loans were closed by the borrowers by selling the property to the third party. Most of the loan transactions were closed by the borrowers or by the developers or subsequent purchasers of the sites. In his statement, he has stated that 43 accounts have been closed by the 88 Spl.CC No.171/2009 respective borrowers by handing the properties to 3 rd parties. He also admits that, two borrowers have closed the loan account by paying cash or cheque. Thus repayment of loan have been spoken to by the P.W.18. He has no personal knowledge about facts of the case. So, therefore, this evidence of P.W.18 also may not conclusively help the case of the prosecution.
107. It is the case of the prosecution that, the salary certificates so produced by the borrowers were found to be fake. Therefore, during the course of investigation, the I.O. has recorded statement of concerned officers of the private public. Amongst them P.W.19 Shashank Kumar Tripati is an Accounts Officer at HAL and he worked in the said capacity till 2010. He says that, the employees of the HAL by name S. Suresh, V.S. Shivaprakash and M.V. Vastrad were the borrowers and he identifies Ex.P.87, the housing loan file belongs to V. S. Shivaprakash. So also of others marked at Ex.P.87, P.81, P.85 etc., and also identifies Ex.P.293. These Ex.P.293(a), (b), (c) and (d) are the genuine pay slips according to the evidence of this witness. But in the cross- 89 Spl.CC No.171/2009 examination he says that, before providing pay slips of the aforesaid employees, he has not verified with aforesaid employees about their pay slips, shown by the I.O. to him. That means, without verifying the records, this P.W.19 has issued pay slips to the I.O. Thus, evidence of this P.W.19 is not helpful to the case of prosecution, so as to prove that the salary certificates, produced by the aforesaid employees of HAL are not genuine. The evidence of P.W.19 suffers from material particulars.
108. P.W.20 B.V. Bhaskara, the another officer of HAL. He has come before the court to speak about issuance of pay slips in respect of 15 employees. He identifies Ex.P.294 i.e. letter addressed to the CBI from HAL. He identifies his signature. Along with the letter, he has furnished pay particulars as noted in Ex.P.295. According to his evidence, the pay slips so found in the documents are issued by HAL. He identified certain documents at Ex.P.75 to P.96. But in his cross-examination, he says "I have not furnished the pay roles of the employees stated supra to the I.O". So the relevant document to speak about the actual pay being 90 Spl.CC No.171/2009 drawn by the employees, who borrowed loan from the bank is not produced by this witness to the I.O. It was the bounden duty of the I.O. to collect pay role, which would have thrown light in the case of prosecution. No doubt, this P.W.20 says that he found fake salary particulars furnished by the employees. But to ascertain the authenticity of the genuineness of the said pay slips, original pay roll is important document. But those documents are not produced before the I.O. It is fatal to the case of prosecution.
109. It is deposed by this P.W.20 in the cross- examination that, whatever the salary particulars being furnished by him to the I.O. are all typed documents. He further says that, it is only the Accounts Department head i.e. Finance Manager or pay roll in charge is authorized to issue salary particulars. Why the I.O. took the documents from this P.W.20 though the Finance Manager or pay roll incharge were authorized to issue issue salary particulars is not explained by the prosecution. This P.W.20 has further deposed that it is the H.R. Head who has to answer that 91 Spl.CC No.171/2009 whether Production Manager is empowered to put his signature to the salary particulars of HAL employees. That means P.W.20 is not authorized person to furnish any pay particulars of HAL employees. Even he speaks of gross salary of employee by name R. Shyam Sundar during January 2005. The ledger extract are still with HAL. Further admits that, the form which is found in the files maintained by the bank in respect of various employees with regard to the salary particulars of employee of HAL is the form being maintained by HAL. That means whatever forms furnished by the employees to the bank to get the loan and the particulars furnished by the employer are one and the same. He says that, salary printed form is maintained by the Stores Department. But in his examination-in-chief we find altogether a contradictory evidence spoken to by this witness. Therefore, the evidence of this P.W.20 suffers from material particulars and we find contradictions, omissions and discrepancies in the evidence of this P.W.20. These factors are not properly explained by the prosecution.
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110. P.W.21 M.T. Hariharan, having worked in HAL says that, about his role as incharge of pay bills, salary slips etc. he says that one R. Mahesh, Ramesh and Mudasir Pasha were the employees of HAL. He identifies the document at Ex.P.296. According to him, this Ex.P.296 is prepared based upon the pay particulars maintained by their office. He identified Ex.P.83 and P.84. He says whenever they issue salary slips, they are based upon the records being maintained by their office and they are certified and attested by the accounts officer or finance officer. He admits in the cross-examination that, the form as said in Ex.P.83(a) and P.84(a) pertains to HAL. So he agrees that the form being printed by the HAL with regard to the issuance of pay particulars of his employees. So, the evidence of P.W.21 is to be accepted to the extent of issuance of pay particulars as sought by the I.O.
111. P.W.22 Manoranjan Dash being the Manager of Finance in HAL has deposed that he worked at Air Craft Division in HAL. As per the letter addressed by the I.O., he has furnished salary certificates of one Kondaiah and K. 93 Spl.CC No.171/2009 Sathish. Ex.P.95(a) and P.99(a) are produced and according to him, they are not genuine pay slips. But in the cross- examination, he admits that employees by name Indranil Sinha, Amiya Kumar Dashand, Sunil Kumar are the employees of HAL and admits that those salary certificates Ex.P.95(a) and P.99(a) appears to have been issued by HAL. That means P.W.22 is not definite about the contents of Ex.P.95(a). Therefore, the evidence of P.W.22 is not helpful to the case of prosecution.
112. P.W.23 D. Gangaguddaiah is a retired person from BWSSB and promoted as Account Superintendent. During the year 2009 he was working as Accounts Officer, Revenue. According to his evidence, his officer addressed a letter to I.O. as per Ex.P.298. He has issued the salary certificate of Smt. Swarnamba for the month of August 2004 which is marked at Ex.P.114. According to him, Ex.P.114(a) is not genuine salary certificate issued from his office. But in the cross-examination he admits that BWSSB have got some sections which maintained attendance register of its employees. One B.M. Narasinga Rao was the 94 Spl.CC No.171/2009 Accounts Officer, Revenue in the year 2004. He enquired the said Narasinga Rao about issuance of salary certificate as per Ex.P.114(a). That means this P.W.23 is not the author of salary certificate of the concerned person. He enquired said Narasinga Rao and thereafter he issued letter to the I.O. That means about the authenticity of the said salary certificate, it is B.M. Narasinga Rao is the competent person. But that person is not arrayed as witness in this case. Therefore, the evidence of P.W.23 is not helpful to the case of prosecution. To prove that Ex.P.114(a) is the fake salary certificate, no acceptable evidence is adduced by the prosecution.
113. P.W.24 N. Ashwatha Narayanappa was an employee of HMT, Bengaluru. He says about authority of Administrative Officer and DDO to issue salary certificate and Form No.16. He says in his evidence that, during 2008 in the capacity of DDO, he used to issue salary certificate and Form No.16 to the employees of Foreman Training Institute. During 2005 one K.C. Sharma was the 95 Spl.CC No.171/2009 Administrative Officer and DDO. According to his evidence, during investigation in this case, the I.O. has shown him salary certificates, payment slips. He was confronted with a loan file pertains to one N. Ravi, the Head Clerk marked at Ex.P.11. According to him, Ex.P.11(a) to P.11(e) so marked in the said file are forged documents. So also, he was confronted with Ex.P.12 to P.18. According to him, these Ex.P.12(a)(b), 13(a)(b), 14(a)(b), 15(a)(b),16(a)(b), 17(a)(b) are the forged documents. In the cross-examination, he admits that, during 2005 one K.C. Sharma being the Administrative Officer and DDO was authorized to issue salary certificates and Form No.16. He admits that, personally he has not handed over any of the documents to the I.O. He has not enquired said K.C. Sharma regarding the genuineness of the aforesaid documents. On reading the evidence of P.W.24, it goes against the examination-in- chief spoken to by this witness. To ascertain the genuineness or falsity of the said documents, it was the duty of P.W.24 to ascertain the same with the concerned authorized person, but he has not done so. Therefore, the 96 Spl.CC No.171/2009 evidence of P.W.24 may not help the case of the prosecution.
114. P.W.25 K. Krishnam Raju, retired employee of Raman Reasearch Institute has come before the court and deposed that one Smt. D.P. Padmavathy was working as helper in the said institute. According to him, there was no person by name G.M. Narayanappa working in his institute during the year 2005-2006. Further, he says that, the pay slip Ex.P.10 is false document. He is confronted with Ex.P.299, also a letter and pay slip which are marked at Ex.P.300 and P.301. In the cross-examination he deposed that, the said Padmavathy has not given any request letter to supply her pay slip to him. Till date, the said Padmavathy is working in the said institute itself. He says that, after seeing the documents at Ex.P.299 to 301, he personally have not enquired the said Smt. Padmavathy. Ex.P.21 is confronted to him. He deposed ignorance that, whether the signatures, so contained at Ex.P.21(b) belongs to the said Padmavathy or not.
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115. It is argued that, this P.W.25 is not an authorized officer to issue salary certificate, but Accounts Officer who is authorized. To support this submission, counsel for accused No.1 places reliance on the admission of P.W.25 elicited in the cross-examination, wherein it is stated that in the Raman Research Institute there is a officer called Accounts Officer. This officer has not furnished any other documents to the I.O. such as salary register, pay rolls etc. What made the I.O. to record the statement of P.W.25 under Sec.161 of Cr.P.C. is not made clear by the prosectuion. P.W.25 is not competent person to issue salary particulars. Therefore, the evidence of this P.W.25 may not help the case of prosecution.
116. PW.26 S. Sami Pillai has come before the court to speak about running of Partnership Firm called as Indian Computer Corporation. He do not know the person by name Girish V.V. and he never worked in his office. Ex.P.108 is marked in this case being house loan application submitted to the aforesaid bank. The file contains the salary particulars marked at Ex.P.108(a), (b) and (c). Letter 98 Spl.CC No.171/2009 is addressed as per Ex.P.108(b). He says that, the pay slip so marked in this case at Ex.P.108(a) to (c) do not bear their office address. He says that, he has not furnished any list of employees working in his firm to the I.O. The Investigating Officer has not collected any of the specimen pay slip or letter head maintained by their firm. That means without getting the list of employers of the firm and salary particulars, this P.W26 has come before the court to depose on behalf of prosecution. His cross-examination so directed, reveal that, he is quite ignorant about so many facts and has not furnished the relevant documents. Therefore, the evidence of P.W.26 becomes inconsequential to the case of prosecution.
117. P.W.27 R. Suresh has come before the court to speak that, he is responsible for payment of salary recoveries and the I.O. had investigated about issuance of pay slips to the employees of KSRTC. He says about salary slip of one Abdul Waiz as per Ex.P.103(a) so also P.104(a), 105(a) and 106(a). According to him, they are all fake and forged documents. He says, on comparison of the original 99 Spl.CC No.171/2009 salary slips marked at Ex.P.303 to P.306 and the pay slips so collected by the I.O. from the bank marked at Ex.P.103(a) to 106(a) are forged documents.
118. In the cross-examination, this P.W.27 says that, at the relevant time, one Rame Gowda was the Accounts Officer in their Central Division, KSRTC, Bengaluru. He was authorized person to issue salary slips, but why the I.O. has recorded the statement of this P.W.27 during investigation is not made clear. This P.W.27 is not the authorized person or the official of the KSRTC. Even he admits that, in the year 2004, he has not dealt with the affairs with regard to the issuance of the salary slips of the aforesaid employees of KSRTC. The salary certificates so marked in the case at Ex.P.303 to 306 have been signed by the said Abdul Waiz, the Accounts Officer. But he is not examined in this case. So, therefore, the evidence of P.W.27 also may not help the case of prosecution to prove about the forgery of the documents in the manner alleged by the prosecution.
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119. P.W.28 Kodandarama having worked as General Manager in VST Tillers Tractors Limited says that the salary slip belongs to one Smt. C.M. Chamundi marked at Ex.P.125(a) was not issued by their company. He identified Ex.P.307. But admits in the cross-examination that, the pay slip form so mentioned in Ex.P.125(a) pertains to their company. He further deposed that, he do not remember that, whether he furnished pay rolls prepared by their office to the I.O. He admits that, Ex.P.307 does not contain his signature. Thus, the vital witness of the company is not examined by the prosecution. It is fatal to the case of prosecution.
120. P.W.29 Smt. S. Komalavalli has come before the court to depose about the capacity of Junior Accounts Officer, who is authorized to issue salary certificate of employees of BSNL, BGTD. She identified Ex.P.116(a) to (d) and according to her, these Ex.P.116(a) to (d) not at all issued from her office. But in the cross-examination, she admits that, during the year 2004, the Accounts Officer of BSNL was authorized to issue salary slips, she was not 101 Spl.CC No.171/2009 authorized to issue salary slips. She admits that, pay slip formats mentioned in Ex.P.121(c) and 116(a) belongs to BSNL. She further admits that, except handing over the documents, she has not done anything in this case. This evidence spoken to by this P.W.29 goes against her examination-in-chief.
121. P.W.30 Dr. R.L. Usharani, being Assistant Surgeon, BBMP Office has come before the court to say that no salary certificates standing in the name of R. Vijayakumari is issued from her office. She says Ex.P.73(a) is a false document. But in the cross-examination, she says that, she has not furnished copies of the registers and other documents to CBI official during the investigation. She admits that, the stamp seal contained in Ex.P.73(a) to
(e) may be belongs to her office, but she is not the signatory to the said documents. She has furnished her specimen signature to the I.O. When material documents are not furnished to the I.O. and when the said Ex.P.73(a) to (e) bears stamp and seal of her office, now she cannot 102 Spl.CC No.171/2009 say that Ex.P.73(a) is false document. Thus the evidence of P.W.30 is quite otherwise than her examination-in-chief.
122. P.W.31 A. Kannigammal identifies Ex.P.1(a), (b) as false documents. He is a retired employee of Central Government. One Mahesh was an employee working as technical assistant in his organization. He says Ex.P.1(a),(b) are not genuine documents. But in the cross-examination, he says that, the salary certificate format so marked in this case in the file maintained by the bank is a format maintained by the office. This evidence goes against the examination-in-chief of the this witness. When format of the salary certificate is similar to the document being produced before the bank, it cannot be stated that, such salary certificate is false document.
123. P.W.32 M. Narayana being an employee of BEL says that Ex.P.120(a),(b) salary particulars have not been issued by the office belongs to one B.S. Nagaraj. Further, he says that the letter is issued as per Ex.P.315. Actual pay slips are Ex.P.316 and Ex.P.17. But says that Ex.P.315 is not signed by him. He do not know who has issued Ex.P.315. 103 Spl.CC No.171/2009 He admits that for the first time he is seeing Ex.P.315 to P.317 before this court. He do not know whether the aforesaid B.S. Nagaraj was working in at relevant time. So, the evidence of P.W.32 in cross-examination is quite against the examination-in-chief. Therefore, such evidence cannot be accepted.
124. Ex.P.33 Anirudh Mehta is the Proprietor, Umiya Builders and Developers. He has come before the court to say that, one Mr. R.K. Manohar was working as Senior Manager Accounts in his company. He is confronted with the document marked at Ex.P.118. The salary slips alleged to have been issued from his office, according to him he has not issued. In the cross-examination, it is elicited that, he does not know the exact date of appointment of R.K. Manohar. He worked for one year in their company. He used to pay the salary to him by way of cheque. He says that, CBI has not asked to furnish bank details. Therefore, he has not furnished. He never denies of salary particulars of R.K. Manohar. Therefore, the evidence of P.W.33 may not help the case of prosecution.
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125. P.W.34 B. Sujatha has come before the court being Assistant General manager of BESCOM and she says that, the salary slips Ex.P.113(a) and (b) so produced in this case are not genuine salary slips issued in the name of one Lineman, Rajashekara and Office attender Geetha. According to her, the said salary certificate furnished by one Rathnamma to the bank to file loan are false. She has also identified Ex.P.72(a) and says that the salary certificate is not issued from here office. But in the cross-examination, she says that in her KPTCL, the Accounts Officer is authorized to issue salary certificate. In the year 2004, one Narayana Reddy was the Accounts Officer. Further she says that, the form so shown to her with regard to salary certificate Ex.P.72(a) belongs to her office. Thus, the form so found in Ex.P.72 is not denied by her. She has not produced pay roll of Rathnamma along with Ex.P.319 and P.320. Further she says the names of B.M. Geetha and Rajashekar is not available in the pay roll. In view of her admissions given in the cross-examination, it can be stated that, she is not an authorized officer to depose before the 105 Spl.CC No.171/2009 court to say about the salary particulars collected by the I.O. So, therefore, the evidence of P.W.34 can be believed to the extent of producing Ex.P.319 only. So far as other aspects are concerned, her evidence cannot be accepted.
126. P.W.35 Smt. Malini Nagaraj having worked as Junior Accounts Officer in Telecoms, Bengaluru Trunk Exchange, has come before the court to depose that Smt. Janaki Srinivasan was working as Senior Telecom Supervisor in their office. She says that the salary certificate is not issued from her office. She was confronted with the said document. She also says that, there is difference in salary particulars mentioned in Ex.P.9(b) with that of the salary particulars maintained in the office of the said Smt. Janaki Srinivasan. Certain documents are marked at Ex.P.321, P.21(a), P.322, P.323, and P.324 being salary particulars.
127. But in the cross-examination, she says that, for the first time, she is seeing the documents marked at Ex.P.321 to P.324. She further admits that, she personally has not verified salary certificates of the said employee. 106 Spl.CC No.171/2009 Further she admits that, the said Ex.P.9(b) may be the salary particulars form maintained by her stationery department. The Accounts Officer was the authorized official to issue salary certificate. She does not know that whether Ex.P.(b) was issued from her office or not. Thus, she has given a clear go bye to her chief-examination. First of all she is not authorized official to issue salary slips. Accounts Officer was the competent person to speak about the authenticity and genuineness of the document. It is fatal to the case of prosecution. In view of the admissions of this witness, her evidence cannot be accepted.
128. P.W.36 Syed Khasim is the retired official of the office of DG and IGP. Bengaluru. According to him, he was the Assistant Administrative Officer in his department and he says that, Ex.P.326 is a forged document. He also identifies letter annexed to the said document. He identifies Ex.P.25 as the document issued from their office. In the cross-examination he says that, he has not personally seen Ex.P.325 letter. Further deposes that the Superintendent of Police is the authorized official to issue 107 Spl.CC No.171/2009 salary certificate. He has not produced any documents to show that, who is competent official to issue salary certificate. Though, he identifies Ex.P.326, but he is not authorized person to issue salary certificate. So, he being Administrative Officer has come before the court and wanted to depose that Ex.P.326 as false document. But in view of his say in the cross-examination, his evidence cannot be accepted as truthful evidence.
129. P.W.37 H.V. Nanjundaswamy is the retired official of KSRTC. According to him, Ex.P.29(a),(b) and (c) and Form No.16 so produced in the case are not genuine documents. The said documents are confronted to him. But in the cross-examination, he too says that, the Accounts Officer of KSRTC was the paying drawing officer for Smt. Jayasheela. He admits that, stationery being used to prepare Ex.P.20(a),(b) and (c) belongs to the stationery department of KSRTC. Ex.P.330 letter is not signed by him. Whether this P.W.37 is really authorized to give evidence in this case is not properly explained by the prosecution. Therefore, the evidence of this P.W.37 will not help the case 108 Spl.CC No.171/2009 of prosecution in any manner to prove that these salary certificates are really false documents. Therefore, the evidence of P.W.37 cannot be accepted as truthful evidence.
130. P.W.38 K. Vijaya, P.W.39 P. Jayaramulu, P.W.40 Smt. D. Kamalamurthy and P.W.41 S.M. Basavachar are the alleged borrowers and they say that they never availed any housing loan from the aforesaid bank. But in their respective cross-examinations they say that, one Babu had come to their house to speak regarding sites and he has not told that Venkatesh has come to them. P.W.38 says that when she came to Gandhi Nagar office, her husband had not accompanied her. According to her, she has not received any amount. So also P.W.39 says that, she has signed all the documents at the Seven Hills Property office at Gandhi Nagar, but has not availed loan of Rs.11,00,000/-. She is confronted with the documents. In the cross- examination, she says that the persons, who told her to provide free sites belonged to the Government. She is a tailor by profession. Herself and C.W.44 Basavachar went to the office at Gandhi Nagar. Thereafter visited the office 109 Spl.CC No.171/2009 of Sub-Registrar. One Nagaraja and Babu were there and they executed the documents. She furnished the documents to Babu. After furnishing the documents, she directly went to the office of Sub-Registrar, Ramanagar. So, at one breath, these witnesses say that, they have not availed any loan, but they went to the office of Sub- Registrar and the sale deed were executed in respect of the sites in their favour.
131. P.W.40 also speaks in similar terms and he says that he put his signature to the aforesaid documents. But further says that C.W.44 had accompanied her. One Nagaraj, Babu and Basha told her to come to office and put her signature. So this execution of documents as well as registration of sale deeds have been admitted by this P.W.40 also.
132. P.W.41 S.M. Basavachar is one of the borrower. According to him, he never worked as a Senior Chief Transport Officer at Foreman Training Institute, Yeshwanthapura. He never availed any housing loan of Rs.9,00,000/- from SBM, Gandhi Nagar Branch, Bengaluru. 110 Spl.CC No.171/2009 But in the cross-examination he says that, he was told to pay the amount towards the purchase of site. One Babu told that the company will provide free site to him. One Khasim came to him thereafter asked him to sign GPA. After registration of the site, he has not paid any amount. He has told that after construction of the house, he will be asked to pay loan amount. Further, in the cross- examination it is elicited that, certain documents were given by himself and others i.e. Jayaramulu, Jaya and Kamalamma. He has stated before the I.O. that during the course of recording his statement, Khasim and others visited his house and asked him to sign the GPA in the name of M/s Global Infrastructure (India Private Limited) represented by K.R. Venkatesha Reddy. When she refused to sign the GPA, they threatened. For the first time P.W.41 speaks of such evidence in the cross-examination. In view of the admissions given by these witnesses in the cross- examination, it can be very well stated that, though they got the sale deeds executed in respect of respective sites, but say that, they never availed any loan. When there is 111 Spl.CC No.171/2009 agreement between the bank, developer and the borrower, there would be tripartite agreement and bank directly release loan amount in favour of the developers. It has come in the evidence of P.W.42 that, he was assured to provide constructed house and thereafter he has to pay installments. That means because of this agreement, amount would not have been released in favour of borrowers and directly would have been released in favour of developer. This possibility cannot be ruled out. Therefore, this evidence of P.W.38 to P.W.41 may not help the case of prosecution in any manner, so as to come to conclusion that, there was no availment of loan by these persons.
133. PW.42 Smt. D.B. Padmavathy, P.W.43 Prakash Pattar, P.W.44 G.S.Vijaya Vittala and P.W.8 B.M. Geetha have come before the court to say that, they have availed housing loan of Rs.10,00,000/- each from the said bank and identified the documents furnished by them respectively. They identified the documents so confronted in their respective examination-in-chief.
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134. In the cross-examination, this P.W.42 says that she furnished the documents to the bank at the time of availing loan. But says that, salary slip Ex.P.21(b) and (c) do not hear her signature. In the further cross-examination, she admits that, whatever the documents shown to her by Jeevan Anand and Mohammed Amanulla, she put the signature. She stated before CBI Officer that said Amanulla has wrongly mentioned her qualification, designation and net salary. So far as availment of loan from the aforesaid bank by these P.W.42, 43, 44 and 48 is concerned they never denied. They have furnished the documents.
135. PW.43 says that, he has not cleared the housing loan amount. He admits that, one Gururaj asked him to furnish all the relevant documents to N.V. Thirumala Reddy, being the bank employee of Engine Division, HAL. After few days, the said Thirumala Reddy asked him to visit the office of Trishul Enterprises. Before the I.O. he has stated that said Thirumala Reddy has prepared forged salary slip inflating his salary for the purpose of getting higher housing loan amount. But the said Thirumala Reddy is not 113 Spl.CC No.171/2009 the witness in this case, so also Amanulla. It is conclusively proved from his evidence, that he has availed loan from the said bank
136. P.W.44 G.S. Vijaya Vittala also speaks in similar terms stating that one Thirumala Reddy approached him to get the site through Trishul Enterprises. He told about availability of site at Singapura Layout. He further admits that, he has stated before the I.O. that, the said Thirumala Reddy has forged the documents. One thing is clear from the evidence of this witness, that he has availed loan from the aforesaid bank.
137. P.W.48 B.M. Geetha also speaks in similar terms and she has availed loan. Documents are furnished. So availment of loan is admitted by this witness also.
138. On reading the evidence of all these witnesses stated supra, viz, P.W.42, 43, 44 and 48, one thing is clear that they availed loan from Gandhi Nagar Branch of SBM Therefore, the evidence of these witnesses will not help the case of prosecution.
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139. Likewise, we find the evidence of P.W.45 L. Ramesh Kumar, P.W.46 M. Chamundi, P.W.47 Rajashekar, P.W.49 Smt. S. Mary Stevens, P.W.50 Mudasir Pasha, P.W.51 Ramesh, P.W.53 R. Magesh, P.W.55 John Rose, P.W.56 R.K. Manohar, PW.59 N.V. Thirumala Reddy, P.W.70 Jayaraj, P.W.71 Jagabandhu Gowda and P.W.120 B.R. Somashekara. These witnesses say about the availability of the site in the layout formed by Trishul Enterprises and also have spoken with regard to purchase of sites.
140. This P.W.45 says that one Thirumala Reddy an employee of HAL contacted him and told about availability of the site through Trishul Enterprises. It is told that first there shall be registration of the site and thereafter the said M/s Trishul Enterprises shall give Rs.50,000/- to him. In the cross-examination, this P.W.45 says that about fetching best price in the market to the said sites. So one thing is clear from the evidence of this witness that, they approached M/s Trishul Enterprises and Seven Hills Properties Private Limited and they wanted to purchase sites. They availed a loan to that effect. Even it has come in 115 Spl.CC No.171/2009 the evidence of P.W.45 that, one Tirumala Reddy has forged the documents. But the said Tirumala Reddy is either witness nor an accused in this case.
141. It has come in the evidence of P.W.46 M. Chamundi that she knows Mohammed Amanulla, Nagaraj and Venkatesh Reddy of M/s Trishul Enterprises. It is told to her by Amanulla that, site is being sold by Trishul Enterprises. Therefore, she went to the office of M/s Trishul Enterprises. She has received a cheque for Rs.11,500/-. She has been declared as hostile witness and cross-examined. But she denied the suggestion directed to her by the prosecution that, she has stated before the I.O. as stated in Ex.P.335, 335(a) and (b). Therefore, the evidence of P.W.46 may not help the case of prosecution in any manner.
142. It is elicited in the cross-examination that, she came to know about availability of site from Mohammed Amanulla and Nagaraj of M/s Trishul Enterprises. One Krishnamurthy paid the loan amount raised by her and purchased the site. She sold the site of Rs.9,00,000/- and 116 Spl.CC No.171/2009 paid the loan amount of Rs.7,25,000/- to the bank. So when there is purchase of site by P.W.46 and resold the same, it is deemed that purchase of site has been admitted. Re-sale of site also admitted. Therefore, the evidence of P.W.46 will not help the case of prosecution.
143. It has come in the evidence of P.W.47 Rajashekar that, he furnished all the documents to M/s Trishul Enterprises and he wanted to purchase site in the joint name of his wife and himself. He has furnished document at Ex.P.113. He identified the said document. In the cross- examination, this P.W.47 admits that, towards availment of the loan amount to purchase the site, both Rathnamma and and Girish acted as agents to him. He handed all the relevant documents to Smt. Rathnamma and in turn she gave them to Girish. This P.W.47 was not aware that for what reason the said Rathnamma and Girish gave him Rs.25,000/-. The said site is presently standing in the name of himself and his wife and they are in possession of the same by putting up construction. Thus, the evidence of P.W.47 is quite against the case of the prosecution. They 117 Spl.CC No.171/2009 have purchased a site. Constructed house and residing there. Therefore, the evidence of P.W.47 also do not prove the allegations made by the prosecution against the accused persons.
144. P.W.48 B.M. Geetha is the wife of this P.W.47. She also speaks on par with the evidence of P.W.47. Therefore, her evidence cannot be accepted to come to the conclusion that, the prosecution is able to establish the guilt against the accused.
145. PW.49 Smt. S. Mary Stevens also speaks that, she came in contact with one Dominic, being an employee of M/s Trishul Enterprises, who has promised her to provide site through M/s Trishul Enterprises. She was taken to the office of M/s Trishul Enterprises and shown a site plan and site to be given to her and got filled certain documents. Purchase of site by this P.W.49 is admitted. According to her evidence, Dominic took her to the office of M/s Trishul Enterprises to speak about availability of the sites. She has furnished documents. She has been intensively cross-examined by the counsel for accused 118 Spl.CC No.171/2009 persons. Her admission go to establish that in the transactions between M/s Trishul Enterprises and this P.W.49, the said Dominic played an active role. So, therefore, the evidence of P.W.49 may not help the case of prosecution.
146. P.W.50 Mudasir Pasha, employee of HAL speaks that one Amanulla contacted him to visit Trishul Enterprises to purchase site. Accordingly, he went to the office of Trishul Enterprises. He gave Rs.87,000/- to one Nagaraj, Clerk who is working in the office of Trishul Enterprises. He put his signature to the documents. In the cross-examination, he says that, key of the constructed house was handed over to him after paying Rs.80,000/- to him by the Trishul Enterprises and during the year 2008 he sold the house. He admits that the said Nagaraj gave a slip stating that, Trishul Enterprises have paid interest and he has to repay the same. Further admits that M/s Trishul Enterprises told him that until the completion of construction, no EMI he has to be paid. It is told that, after completion of construction, possession would be handed 119 Spl.CC No.171/2009 over and thereafter, EMI has to be paid. He admits that Ex.P.18 salary slip was handed over by him. Thus, the evidence of P.W.50 shows that, he purchased site in which house was constructed by M/s Trishul Enterprises and handed over the key after paying Rs.80,000/-. That means, there was availment of loan by him, and he was asked to repay the loan only after possession of the constructed house. If this evidence of P.W.50 is taken into consideration, it can be very well stated that, the prosecution through the evidence of P.W.50 cannot prove the allegations made in the charge sheet against accused persons. Therefore, the evidence of P.W.50 cannot be accepted as truthful evidence in favour of the prosecution.
147. P.W.51 Ramesh also speaks that, he came in contact with one Dominic of M/s Trishul Enterprises and it is told to him that, the said M/s Trishul Enterprises have put up the construction of the house and hand over the possession. He has furnished documents to raise loan from the aforesaid bank. He has put his signature to the documents. He says that, he has told before CBI Officials 120 Spl.CC No.171/2009 that the Dominic has forged the documents. He has paid 4 EMI's in installments of Rs.40,000/-, 50,000/-, 1,35,000/- and 2,57,000/- to the bank after obtaining loan from his friend Sri. Askar. After clearance of loan, bank has given him NOC. The said site was sold to the said Bhaskar. Thus, the admissions given by P.W.51 in the cross-examination falsifies the very case of the prosecution with regard to the misuse of power by this accused No.1.
148. P.W.53 R. Magesh also speaks in similar terms. He too says that, he has sent all the documents and he has furnished documents to the said Dominic. He also says that before the I.O., he told that, the said Dominic has forged the documents. But Dominic is not an accused in this case. He has paid Rs.2,20,000/- towards installment regarding loan. So, therefore, the evidence of P.W.53 also may not help the case of prosecution.
149. P.W.55 John Rose also speaks in similar terms with that of the aforesaid witness. So on scrupulous reading of the evidence of these witnesses, discussed above, it can be stated that, the evidence so placed on 121 Spl.CC No.171/2009 record by the prosecution and the clear admissions spoken to by the witnesses falsifies the case of the prosecution.
150. P.W.52 Smt. K. Dayanidhi has come before the court to speak about purchase of site from one Mary Stevens i.e. P.W.49 and identified sale deed as per Ex.P.336. She has been thoroughly cross-examined. This P.W.52 goes against the case of the prosecution. She admits that she has paid Rs.4,40,000/- towards purchase of site and other than the amount, there was no need for her to pay other amount. She says, initially she purchased the site and thereafter, P.W.52 purchase the same. To that extent, the evidence of P.W.52 is to be accepted.
151. P.W.54 R. Satish is the real estate businessman and has come before the court to speak that he approached M/s Trishul Enterprises to purchase sites at Singapura Layout. He did arrangement to purchase seven houses situated at Singapura Layout and negotiated price at the rate of Rs.650/- per square feet. He agreed to pay Rs.5,00,000/- to D. Sudhakar and he paid the same. That means, even the real estate businessman also have 122 Spl.CC No.171/2009 purchased the sites so formed by M/s Trishul Enterprises. He has sold the site in the name of Dominic from Mary Stevens, acting as real estate businessman for a consideration of Rs.13,00,000/-. He paid Rs.75,000/- as a commission to the said Dominic. So, according to the evidence of P.W.54, he acted as real estate businessman and site being purchased by Mary Stevens was sold to Dominic as stated supra. Therefore, the evidence of P.W.54 also may not help the case of prosecution. Likewise, the evidence of P.W.55 and P.W.56 in view of their fair admissions in the cross-examination.
152. P.W.57 Anbazagan has come before the court to speak that as per the instructions of CBI Officer, he issued Ex.P.37 being the genuine salary certificate. No cross- examination is directed to this witness. So, to the extent of issuing Ex.P.37, evidence of this witness is to be believed. To that extent, I believe his evidence.
153. P.W.58 Firoz Pasha has come before the court, being retired BMTC Driver. He says that, he has purchased site at Hegde Nagar and he does not know about Seven 123 Spl.CC No.171/2009 Hills Properties Project at Bidadi. This witness has been declared as hostile witness. But nothing worth is elicited from the mouth of this witness, so as to disbelieve his version given in examination-in-chief. He has been directed with cross-examination by accused No.2 to 7. He says that, one Dominic used to visit borrowers and appraise about availability of the sites and accordingly, he purchased. He does not know who are all the borrowers have purchased sites.
154. P.W.70 Jayaraj having joined the services with HAL, Finance Department as Clerk cum Typist. He says before the court that, one Dominic used to come towards the gate of his office. He came in contact with M/s Trishul Enterprises through him. The said Dominic used to tell about the sites, which are available for sale and if the site is purchased, they shall give money. Thereafter, it was told that Rs.50,000/- would be given and loan will be provided towards purchase of the house. Therefore, he furnished his identity card, salary slip, form No.16, address proof to the said Dominic. He identified his housing lona application as 124 Spl.CC No.171/2009 per Ex.P.98. So also, other documents like loan agreement, agreement to sell and build as per Ex.P.98(a) to (c). He never paid any EMIs to the SBM, Gandhi Nagar Branch.
155. In this cross-examination it is elicited that, with regard to the transaction of purchase of site, the aforesaid Dominic only played active role. At the time of registration, he was called to Sub-Registrar Office by Dominic and there on behalf of the developers somebody came and put the signatures. So execution of sale deed in respect of sites, he admits. But denied other suggestions. Ex.D.12 is confronted to him. According to him, he handed over the salary slips to the said Dominic which is marked at Ex.D.13. So, as per his evidence, he handed over all the documents and based upon that, he got sites being purchased by him. So, the transaction between M/s Trishul Enterprises and others, P.W.70 have been admitted by this P.W.70. He denied the suggestion that, he has repaid the loan amount of Rs.7,03,234/- etc. Some portion of his evidence is marked in this case as per Ex.D.14. One fact is 125 Spl.CC No.171/2009 clear from the evidence of P.W.70 that, he purchased site through M/s Trishul Enterprises.
156. P.W.71 Jagabandhu Gowda has joined the services with HAL as a Technician and according to his evidence, one Nagaraj and Venkatesh Reddy used to come to their office gate and used to convince employees of HAL and informed about sale of sites at Singapura Layout by M/s Trishul Enterprises. He also takes the name of Dominic and according to him, he handed over all the documents to the Dominic. He says that he has given Ex.P.82. He also identified Ex.P.82(a) to (d). He admits about registration of site in his name. When he asked them to give Rs.50,000/- according to his evidence, it was asked to re-register the site by Venkatesh and Nagaraj. He met one Hanumanthappa Reddy. He re-sold the said site and cleared the loan. So, the transaction between M/s Trishul Enterprises and this P.W.71 have been admitted by this witness.
157. In the cross-examination, he admits that, for repayment of loan amount of SBM, Gandhi Nagar branch, 126 Spl.CC No.171/2009 he received notice from the said branch. Thereafter, he approached the said bank and took time for repayment of loan amount, then paid. Even it is elicited that some people regularly used to come in front of the gate of his factory and informed about availability of sites for sale. It may be one Dominic who was an agent. These agents have promised to give money after the purchase of the sites. Thus transactions between M/s Trishul Enterprises and P.W.71 with regard to the purchase of sites have been admitted by this witness. But alleged that, agents have made false promise to give money. No incriminating evidence is spoken to by this witness against the accused persons. According to him, Rs.5,94,902/- was being arranged by Krishna Reddy by obtaining NOC from the bank. He never went to the office of M/s Trishul Enterprises demanding Rs.50,000/- He met Venkatesh Reddy and Nagaraj only at the time of making application for allotment of site and at the time of registration of the site in his name. Thus the evidence of P.W.71 may not help the case of the prosecution.
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158. P.W.59 N.V. Tirumala Reddy is the retired HAL Employee says that, based upon the paper advertisement, he came in contact with M/s Trishul Enterprises in the year 2003. He came to know about the availability of sites at Singapura Layout. One Gururaj took him to Singapura Layout and showed site. Thereafter, he was called to the office of M/s Trishul Enterprises and it is told to him that his take home salary is less. Therefore, no loan is sanctioned to him. He has been declared as hostile witness by the prosecution. So one thing is clear from the evidence of P.W.59 that the bank insisted to furnish salary certificate and as the salary of the P.W.59 was very less, therefore, bank denied to grant any loan. That means, it is argued that, while granting loan, accused No.1 has followed all the procedures of granting loan.
159. It is elicited in the cross-examination directed by accused No.2 to 7 that, after seeing the site at Singapura Layout, he was satisfied with the developments of the sites. Therefore, he requested Gururaj to provide him a site at the said layout. So, in the layout being formed, 128 Spl.CC No.171/2009 developments of sites has taken place. Prosecution alleges that, there was no development of sites at all. It is elicited that, he do not have any personal knowledge about the transaction that have taken place between Trishul Enterprises and his friends regarding purchase of sites. It is elicited that, after two years, he came to know from the builders that there were forged documents furnished to the bank while raising the loan by the agents or the borrowers.
160. It is submitted by the counsels for accused that, the role of agents is not examined by the I.O. and it is fatal to the case of prosecution.
161. P.W.60 Mohammed Amanulla has come before the court to speak with regard to the convincing by Dominic to purchase sites by the intending purchasers in the layout formed by M/s Trishul Enterprises. He says that, he came in contact with late Dominic, who is an employee of M/s Trishul Enterprises and came to know that, M/s Trishul Enterprises and M/s Seven Hills Properties Private Limited have formed layout. According to his evidence, he used to 129 Spl.CC No.171/2009 fill the application form of M/s Trishul Enterprises regarding purchase of sites. He does not know the Proprietor of M/s Trishul Enterprises. He has been declared as hostile witness. Though cross-examination is directed to this witness, but nothing worth is elicited from the mouth of this witness, so as to disbelieve his version given in the examination-in-chief. He denied that, he has stated before the I.O. that Ex.P.340, P.340(a) so also Ex.P.340(b) and (c). No evidentiary value can be attached to the evidence of this witness.
162. P.W.61 by name S.N. Velayudham @ Sekhar has come before the court and deposed about the availability of the sites in the layout formed by M/s Trishul Enterprises. He too have been turned hostile. Nothing worth is elicited from the mouth of this witness. He states that, he has not stated before the I.O. as per Ex.P.341, hence the evidence of this witness will not help the case of prosecution.
163. P.W.62 by name Ramachandra Shettar is the erstwhile Manager of Kotak Mahindra bank and he speaks 130 Spl.CC No.171/2009 about receipt of bills, honouring the same by deducting commission. He says with regard to the discounting of bills which have been presented for the purpose of honouring. During his tenure, he received bills which are marked at Ex.P.194 to P.196. Other documents belongs to M/s Seven Hills Properties etc. He also produced certified true extract statement. He identified documents at Ex.P.342 to P.346 and the respective documents attached to the said exhibits. He also identified cheques at Ex.P.347 to P.358. According to his evidence, he has honored all these bills and prepared the statement of accounts in respect of Meerams Over Seas Private Limited in nine sheets for the period commencing from 30.06.2005 to 31.12.2005 and 16.01.2006 to 22.04.2006 maintained by the bank marked at Ex.P.342(g). He also says about the document of one S.N. Takur dated 03.04.2009, wherein he has transferred the amount by writing credit challan dated 03.01.2006 for Rs.73,60,000/- credited to A/c No.1522 of M/s Meerams Overseas Limited on 04.01.2006 131 Spl.CC No.171/2009 from SBM, Chellakere Branch. Thus he admits with regard to honouring of the bills etc.
164. He has been directed with severe cross- examination by the counsel for accused No.2 to 7. In the cross-examination, he admits that, since from the commencement of Meerams Overseas Private Limited i.e. from 2004 the said company is having account with ING Vysya, Chellakere Branch, which is now named as Kotak Mahindra Bank. The term loan had a limit of Rs.68,00,000 and OD account was having a limits of Rs.2,00,00,000/-. So whatever transactions did by this Meerams Overseas Private Limited is concerned, this P.W.62 has spoken. The evidence of P.W.62 may not help the case of prosecution to prove that, these accused have committed offences for personal gain in the manner alleged by the prosecution. Even he states that, SBM used to send the cheques, bills etc and they used to honour. Thus, to the extent of receipt of the cheques, bills etc and honoring them the evidence of P.W.62 is to be accepted.
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165. P.W.63 T. Thimmappa being the former Manager of SBM speaks of discounting of bills sent by SBM, Gandhi Nagar Branch by his branch i.e. SBM, Chellakere Branch. According to him, Ex.P.194 to P.196 have been sent to their branch after maturity, and he identifies the original Current Account opening form dated 06.12.1995 in the name of D. Sudhakar, who is accused No.2, which is marked at Ex.P.359. The Transfer Debit voucher dated 05.12.2005 is also identified by this witness and other documents have been confronted to him at Ex.P.360 to P.377 and other documents annexed to it. This P.W.63 in the cross-examination says that Chellakere branch has acted as collecting agents only. So therefore, as the said Chellakere branch of SBM acted as collecting agents, no evidentiary value can be attached to the evidence of this witness, so as to believe the story of prosecution as made against the accused persons. Even he says that, request letter forwarded for discounting bills are marked in this case at Ex.P.194 to 196 to SBM, Gandhi Nagar was forwarded to them which in turn they forwarded the same 133 Spl.CC No.171/2009 to ING Vysya Bank. So, no incriminating evidence is spoken by this P.W.63 against the accused person.
166. PW.64 Afzal Ahammed Khan has come before the court to speak about furnishing of information in respect of seven vehicles as per Ex.P.378. He has furnished documents as per Ex.P.378 to the I.O. No cross- examination is directed to this witness by the defence. So, to the extent of furnishing of Ex.P.378, the evidence of P.W.64 is to be believed.
167. P.W.65 Sajid Sahib and the P.W.66 Prasad are the witnesses examined by the prosecution to prove that, these two witnesses used to arrange the customers and used to get commission from other transporters. They identified Ex.P.194 to P.196, so furnished by them.
168. In the cross-examination it is stated by P.W.65 that, along with goods, they used to send the lorry receipt and whenever there is a return of hired trucks, the signature of particular customer or driver used to be taken. He admits that, they had engaged their trucks 134 Spl.CC No.171/2009 regularly with Meerams Overseas Private Limited. They used to contact with the officials of Meerams Overseas Private Limited including Bhadri Prasad. Whenever they receive orders from others also, they used to collect the goods from godown and make arrangement for reaching the same to the destination. This P.W.65 identifies Ex.P.379 and the evidence of these two witnesses can be accepted to the extent of arrangement of vehicles to the customers as per demand. As per the instruction of I.O., he has furnished Ex.P.380. He admits about collection of charges etc.
169. P.W.66 also speaks in similar terms and specifically says that they used to arrange vehicles to the customers for the purpose of transportation of goods from godown to other places. No incriminating evidence have been spoken by these two persons against the accused persons.
170. PW.67 M.P. Omkareshwari has come before the court to speak that, as per the request of I.O., she addressed a letter dated 01.04.2009 and furnished 135 Spl.CC No.171/2009 particulars regarding vehicle No.KA-23-22. She has issued Ex.P.382 B Extract of the said vehicle. According to her regarding vehicles bearing No.KA-20-2768, KA-20-8632 and KA-20-3768 these vehicles have been migrated to
169. P.W.66 also speaks in similar terms and specifically says that they used to arrange vehicles to the customers for the purpose of transportation of goods from godown to other places. No incriminating evidence have been spoken by this two persons against the accused persons.
171. PW.67 M.P. Omkareshwari has come befoother RTOs. This P.W.67 is a retired RTO at Udupi and has furnished documents at Ex.P.381 and P.382. No cross- examination is directed to P.W.67 by the counsel for accused persons. To the extent of furnished documents at Ex.P.381 and P.382, the evidence of P.W.67 is to be accepted.
172. P.W.68 A. Mahalinga Nayak says that he is private bus driver and he has not transported any of the goods from Chellakere to Mangalore. This witness is cross-examined by the prosecution to prove that, this 136 Spl.CC No.171/2009 Meerams Overseas Private Limited has transported the goods by using his Autorickshaw. But P.W.68 denies the same. In the cross-examination directed to this witness by the counsel for accused No.2 to 7, he says that he worked as a driver in a private bus for a period of 30 years and he has stopped working as private bus driver. He never gave his auto rickshaw to any other persons to run the same. It is the case of prosecution that, fake vehicle numbers are furnished by the company. Therefore, for personal gain, they have furnished all these false information. But transportation of goods is admitted. Accused are not denying the same. Therefore, the evidence of P.W.68 may not help the case of prosecution in proving the case made out against the accused persons.
173. P.W.69 Vinay Prakash Karat is the owner of rickshaw bearing Reg.No.KA-19-6420 and wherein, he has furnished Ex.P.196(a). As per this document, his vehicle has been shown as Truck at Sl.No.7 but it is not a truck. But in his cross-examination states that, the CBI has not enquired him about transportation of goods from 137 Spl.CC No.171/2009 Chellakere in the said vehicle. No statement was given by him. Threfore, this evidence of P.W.69 falsifies his examination-in-chief.
174. P.W.72 Padmanabha Shet is the owner of rickshaw bearing Reg.No.KA-20-322 having purchased the same in the year 2003 from one Ravindra Shet. He has sold the rickshaw in the year 2005 to one Raghuraj Nayak. The said vehicle is not a lorry according to his evidence. His vehicle did not travel to Chellakere. In the cross-examination he says that, the said vehicle was purchased in the month of January 2003. He cannot say in which month he sold the said vehicle. So, there is no incriminating evidence spoken to by this witness against the accused persons in the manner alleged by the prosecution.
175. P.W.73 Harish Gatty is another owner of Scooter bearing Reg.No.CNX 3250 have been purchased the same for Rs.4,000/- and he has given statement before the I.O. He identified B Extract of the said vehicle at Ex.P.78(f). He has no contact with any Mangalore Road Lines. He says 138 Spl.CC No.171/2009 the alleged transaction is of the year 2004-2005. So much value cannot be attached to this evidence of P.W.73.
176. P.W.74 A.N. Ranganath Kumar has come before the court to say that, he is Valuer and Engineer and have issued separate valuation reports contains Ex.P.64 and other documents. According to him, his role of empenal valuer of SBM is to issue the valuation report/ certificate for the given assignment from time to time. He identified his reports so marked in this case as per Ex.P.10(e). As per the agreement, to buy and build, the development cost is shown as Rs.700/- per Sq.ft. According to him, the said cost is more than the market value. He identifies Ex.P.64, 65, 68, 72, 79 to 83, 99, 102, 113 to 115, 117, 121, 123, 124,, 128, 89 to 92, 110 and 120. According to his evidence, in all these files, he noticed that, there is difference in his valuation and the valuation stated by the bank.
177. In the cross-examination, it is elicited that for providing valuation, the bank may assign the valuation orally also. Based on the provided documents, he visited 139 Spl.CC No.171/2009 the properties and gave valuation. He admits that, the valuation may differ from time to time. Based upon the availability of MLD, he has furnished his valuation. When he visited the properties, the entire project was not completed. In his report, he mentioned so. He denies other suggestions.
178. He further says that, his assignment by the bank was to prepare the valuation report with regard to the properties as on the date of valuation only. He admits that, based upon the title deeds furnished to him and also on perusal of the documents and as well as based upon his personal visit to the properties, he has prepared the report. The report is not objected by the defence. Valuation report is not disputed by anybody in this case. So, to the extent of furnishing valuation report, the evidence of P.W.74 is to be accepted.
179. It has further come in the evidence of P.W.74 that, the cost of construction is based on the material used for construction, the architect and other specifications. He 140 Spl.CC No.171/2009 mentioned so many things in the cross-examination. To that extent, his evidence is to be believed.
180. P.W.75 T. Satish Babu says that, he is the valuer and he has issued valuation report with regard to Bidadi Project. According to him, he is the sole Proprietor of M/s K. Thammaiah and Associates, Banks approved valuer and Govt. registered valuer. His proprietary concern is one of the Panel member in the bank proved list of SBM, Bengaluru since 2001. The role of empenal valuer of SBM is to issue the valuation report/ certificate from time to time. As per the instructions of SBM, Gandhi Nagar Branch i.e. Accused No.1, he prepared valuation report regarding Bidadi Project developed by M/s Seven Hills Properties Private Limited by getting clearance from BMRDA/ BMICATA. Thus the evidence of P.W.75 is very much clear that, the valuation report is prepared only after clearance from BMRDA and other authorities. He identifies his report as per Ex.P.38 and say that, site value was at Rs.600/- per square feet. Similarly identifies other files at Ex.P.21, 37 to 40, 43, 47, 49 to 58. He has furnished valuation report. He 141 Spl.CC No.171/2009 further says in the cross-examination that the bank has furnished documents to him before valuation and whatever the documents bank has furnished, he has mentioned the same in his report. Valuation is based upon the site value, amenities available there. He has taken valuation as per the 50% of the work being carried out at the present. So the evidence of P.W.75 is very much clear that work was in progress in the respective sites formed by Seven Hills Properties Private Limited. This fact is not denied by the prosecution by treating this witness as hostile witness.
181. P.W.76 A. Sehar Ponraj has come before the court to speak about the certificate of incorporation and other documents. To the extent of issuing the certificate of incorporation of M/s Seven Hills Properties Private Limited, the evidence of P.W.76 is to be accepted. No cross- examination is directed to this witness. He identifies Ex.P.386 and with his signature marked at Ex.P.386 and P.386(a).
182. Ex.P.77 Sadanand Acharya, the Deputy Director Town Planning has come before the court and says that 142 Spl.CC No.171/2009 BMICAPA was approved in the year 2004. Kallugopanahalli comes within the jurisdiction of BMRDA and earlier Banandur village used to come with the jurisdiction of BMRDA. From 05.10.1999 the said Banandur village is within the jurisdiction of BMICAPA. He identified documents being submitted by M/s Nandi Enclaves Property Developers or M/s Seven Hills Properties Pvt. Ltd. He identified approval layout plain with regard to Sy.No.228/2 of Banandur village, Ramnagar Taluk.
183. In the cross-examination he admits that, M/s Nandi Enclaves Property Developers submitted an application for approval of residential layout on Sy.No.s 19, 13/3, 18/1, 18/2, 18/3, 13/5 of Kallugopanahalli village. So also in respect of Sy. No.s 229, 228/2, 209/1, 209/2 of Banandur Village on 24.01.1998 for an area of 24 acres 32 guntas. He identifies file in respect of Sy.No.228/2 of Banandur village which was handed over to BMICAPA from BMRDA on 18.12.2007. So this evidence of P.W.77 goes against the very case of the prosecution. It is the case of prosecution that, no approval was obtained. But as per the 143 Spl.CC No.171/2009 evidence of this P.W.77 approval is granted. This P.W.77 further admits that on 04.04.2003 the applicant requested the revision of layout for Sy.No.s 18/2, 18/3, 13/3, 13/5 and 19 measuring 15 acres 17 guntas of Kallugopanahalli village only for which BMRDA approved the said revision for an extent of 15 acres 17 guntas. This P.W.77 received letter as per Ex.P.388 in this case. Thus the evidence of P.W.77 goes against the case of prosecution.
184. P.W.78 Mohammed Khasim says that, as per the instruction of his employer M/s Trishul Enterprises, he used to take the customers to the sites. He has been turned hostile to the case of prosecution. Nothing worth is elicited from the mouth of this witness. In his examination-in-chief, he specifically says that, whenever the customers come with an intention to purchase sites, being formed by M/s Trishul Enterprises, he used to pickup the interested persons to the said sites to show the same. He has taken the intending purchasers to Bidadi plot. No effective cross- examination is directed to this P.W.78 by the prosecution. 144 Spl.CC No.171/2009 P.W.78 says about formation of layout by M/s Trishul Enterprises and offering the public to purchase the same.
185. P.W.79 N. Hanumanthaiah has come before the court to say that, he used to bring the customers to Trishul Enterprises to purchase the sites. He too have been turned hostile. One thing is clear from the evidence of P.W.79 that, he acted as an agent of M/s Trishul Enterprises and used to bring the intending purchasers to the sites. For that, he used to get commission. Nothing worth is elicited from the mouth of this witness, so as to disbelieve his version given in the examination-in-chief.
186. P.W.80 P.A. Krishna Reddy is a Advocate, who has furnished the legal opinion with regard to grant of loan as per the housing loan files marked at Ex.P.8 to P131. In unequivocal terms, he says about furnishing legal opinion and receipt of his legal fees by way of six cheques marked at Ex.P.401 to P.406.
187. He has been cross-examined by the counsel for accused No.1. Categorically, this P.W.80 admits that, layout 145 Spl.CC No.171/2009 plan is different and the building plan is different. Based upon the layout plan, he has furnished his legal opinion in all the aforesaid transactions. He admits that, the building plan is to be obtained if at all the owner of the site intends to construct the house. He admits that, there would have been possibility of building plan as on the date of tripartite agreement. So, this admission of P.W.80 as well as examination spoken to him proves that, based upon the layout plan he has furnished legal opinion as found at Ex.P.8 to P.131. When the legal opinion have been obtained by accused No.1 before grant of loan, it can be stated that all the procedures of granting loan have been followed by this accused No.1 as per the submission of counsel for accused No.1. Thus, the evidence of P.W.80 is to be accepted with regard to furnishing of legal opinion.
188. P.W.81 Ramesh being the Revenue Inspector has come before the court to say that he inspected land bearing Sy.No.228/2 of Bnandur village along with bank officials and CBI officials. On inspection, they noticed that no construction work was commenced in the said survey 146 Spl.CC No.171/2009 number and it was vacant land. He identified mahazar at Ex.P.160 so also his signature. He identifies photos marked at Ex.P.407 to P.414. He identifies RTC extracts as per Ex.P.415 of Sy.No.202 of Banandur village.
189. It is elicited in the cross-examination that, Banandur village and Kallugonahalli village are adjoining with each other. He further says that, the CBI officials have not at all told him that, in the aforesaid survey numbers in how many sites, the construction of the building is expected. So this evidence spoken to in the cross-examination falsifies the very case of the prosecution that no layout was formed, no sites are formed etc. So, the evidence of this P.W.81 suffers from material particulars.
190. P.W.82 A.N. Ravishankar has come before the court to say that, he being the Executive Engineer of BESCOM speaks of submission of the application for electricity by M/s Seven Hills Private Limited as per Ex.P.147. That means, application was submitted by M/s Seven Hills Private Limited for the purpose of taking 147 Spl.CC No.171/2009 electricity connection. It was submitted by the accuse No.4. This P.W.82 has inspected the layout and sent proposal for sanction for electricity. He admits that, on 10.04.2007 M/s Seven Hills Properties deposted Rs.7,92,800/- towards initial deposit. So we find no incriminating evidence spoken to by P.W.82 against the accused persons. One thing is clear that, M/s Seven Hills Properties has submitted an application for taking electricity connection to the layout, so formed by it.
191. P.W.83 H.K. Nagaraje Gowda speaks of conducting spot inspection, taking of photographs, preparation of panchanama etc., at Sy.No.18/2 and 10 of Kallugopanahalli village. He also speaks of preparation of the panchanama as per Ex.P.159, identifies photographs at Ex.P.418 to P.437. In the cross-examination, he admits that, the photographs are silent with regard to survey numbers of each said photographs are taken. The I.O. has not informed that, for what purpose the photographs have been snapped. He admits in unequivocal terms that, "on seeing the photographs, formation of layout is 148 Spl.CC No.171/2009 completed". This admission of P.W.83 goes long way and we find no incriminating evidence of this witness against the accused persons.
192. P.W.84 B.K. Chandrashekar being the Contractor, having contact with M/s Seven Hills Properties Private Limited to put up construction of houses and subsequently, he was asked to stop the construction. As per his evidence, it is clear that M/s Seven Hills Properties Private Limited have asked him to commence construction and subsequently he was asked to stop the construction. This fact is not denied by the defence. No cross-examination is directed to this witness by the counsel for accused. So, to the extent of stopping the construction by this contractor, his evidence is to be believed.
193. P.W.85 Gopalaiah was present when the panchanama as per Ex.P.161 is prepared at Singapura village and identified RTC extracts so marked in this case. The panchanama is marked at Ex.P.161 and the RTC extracts and marked at Ex.P.438 and 439 along with 149 Spl.CC No.171/2009 a letter marked at Ex.P.440. In categorical terms, this P.W.85 admits in his cross-examination that, "when we visited the said landed properties we noticed the progress in the construction of the houses except in nine sites". That means construction was very much progress in the said layout.
194. P.W.86 M. Suresh, being Executive Engineer of BESCOM has come before the court to say about providing electricity to the layout so formed in the aforesaid survey number of Singapura village. According to him, during they year 2004-2009, their Superintendent Engineer has not granted any such sanction for supply of electricity and has not issued any NOC. There is no application for supply of electricity. He says that, for the first time he is seeing Ex.P.461 before the court. Personally he has not verified any of the documents in his office with regard to non issuance of NOC. He personally has not received any letter or document to the persons, who had applied for supply of electricity to the houses so constructed in the said layout. As per the document received by his office, there were 30 150 Spl.CC No.171/2009 such applications received requesting for supply of electricity to their respective houses. This evidence spoken to by P.W.86 shows about construction of houses in the layout and demand for supply of electricity to the respective house owners of the houses so constructed in the said layout. This P.W.86 has no knowledge about application for seeking NOC etc.
195. So, one thing is clear from the evidence of P.W.86 that, applications were submitted by the owners of the house for supply of electricity.
196. P.W.87 K.N. Shivalinge Gowda says that, no application was submitted for getting NOC by M/s Trishul Enterprises from the Pollution Control Board. He being the Environmental Officer of Pollution Control Board says so. But in the cross-examination he says that, the Member Secretary was the competent person to issue NOC in consultation with State Level Committee and such NOC has been issued from the Head Office. Why this P.W.87 is examined in this case is not explained. So, when he is not 151 Spl.CC No.171/2009 an competent person, the prosecution ought not have examined this witness.
197. P.W.88 Nagarathnamma says that, she has worked as Revenue Officer, BBMP, Bengaluru. She was not competent to approve the layout plan in Sy.No.60 and 70 of Singapura Village. She identifies layout plan as per Ex.P.463. But in the cross-examination, she says that, the Singapura Village was not in the jurisdiction of BBMP in the year 2004. She personally has not gone through the documents before giving her statement before I.O. She admits that, respective Municipalities or the Corporation give approval for layout plan within their jurisdiction. So, this admissions of P.W.88 in the cross-examination goes against her own examination-in-chief. Purpose of cross- examination is to elicit the truth.
198. P.W.89 B.N. Eshwaraiah says about Current Account No.141 standing in the name of Sri. Mohammed Nazir Ali Siddiki of Chikkaballapura. As per Ex.P.464 being opened by him. According to his evidence, he being retired Manager of Dena Bank, an account was opened in the 152 Spl.CC No.171/2009 name of aforesaid person and he has received the cheque for encashment for Rs.10,00,000/- and was dishonoured. Collection schedule and collection memo is marked at Ex.P.465 and 466 respectively. There is no cross- examination directed to this witness. So to the extent of receiving of cheque for encashment in the account of aforesaid Mohammed Nazir Ali Siddiki, his evidence is to be believed.
199. P.W.90 H.V. Sannappaiah is the Joint Director of Town Planning, KIADB has come before the court to say that, at the relevant time, there was no revised layout plan being prepared after 1999 by BMRDA in respect of Sy.No.228/2 of Banandur village. BMRDA is the competent authority to approve layout plan in respect of Sy.No.18/2, and also 19 of Kallugopanahalli village and Sy.No.228/2 of Banandur village before commencing of BMICBA. He further says that, till 2009, his office has not received any application from M/s Trishul Enterprises regarding approval of layout plan. We find inconsistent evidence. The other witness says that, BMRDA approval was obtained, 153 Spl.CC No.171/2009 but this witness speaks otherwise. He has been directed with severe cross-examination by the counsel for accused No.2 to 7. He admits in the cross-examination that, in respect of landed property of Banandur village in Sy.No.209/1, 209/2, 228/2, and 229 and Sy.No.18/1, 18/2, 18/3, 13/3, 13/5 and 19 of Kallugopanahalli village, layout plan was approved on 12.07.1999 by BMRDA. So, this admission goes against the examination-in-chief spoken to by this witness. Even he admits about approval of the revised plan by BMRDA. On 06.05.2005 another revised plan was approved. Therefore, the evidence of P.W.90 may not help the case of prosecution.
200. P.W.91 A Shankar has come before the court to say with regard to the issuance of bank cheque by debiting the account of the customers as per the application so received. He identifies Ex.P.470 and other documents. Bank cheque is marked at Ex.P.471. No cross-examination is directed to this witness by the defence. So, to the extent of his examination-in-chief, his evidence is to be accepted. 154 Spl.CC No.171/2009
201. P.W.92 Smt. D. Bhavani Balakrishna has come before the court and identifies one cheque standing in the name of accused No.2, which is cleared by the Central Clearing Unit. She identifies Ex.P.472, P.473, P.475 and P.476. No cross-examination is directed to this witness. She identifies these documents. Her evidence is to be believed to a limited content.
202. PW.93 M.V. Kumar, the CEO of Kempegowda Pattanaa Souhardha Sangha, Tumkur has come before the court and identifies Ex.P.477 being furnished the same to the I.O. No cross-examination is directed to this witness. To the extent of identifying Ex.P.477, his evidence is to be believed.
203. P.W.94 Shivalingappa Marali also says that, he being the General Manager of Hoysala Souhardha Co- operative Bank, Chellakere. He identifies Ex.P479, the account opening form in the name of accused No.2. This fact is not disputed by the defence. So, the evidence of P.W.94 is to be accepted with regard to identification of 155 Spl.CC No.171/2009 Ex.P.479 and the cheques being presented for encashment as per Ex.P.480, P.481 and P.482 respectively.
204. P.W.95 V. Madhusudhan being District Registrar, Mandya identifies Ex.P.390 to P.394 and P.392 respectively. He is responsible for registration of documents relating to agricultural land, sites and house buildings, collecting of stamp duties and registration fees on behalf of government which are related to transaction at Ramanagar Taluk. So also issuance of Encumbrance Certificate etc. Likewise, P.W.96 Hameed Ali, retired District Registrar identifies sale deeds as per Ex.P.392. No cross-examination is directed to this witness by the defence. So to the extent of their examination-in-chief, his evidence is to be accepted.
205. P.W.97 Chikkapeddanna K.G., P.W.98 Ganga Hanumaiah, P.W.99 Prabhakar C.J. and P.W.100 P. Praveen Kumar identifies the sale deeds marked in this case at Ex.P.392 and other documents. There is no cross- examination directed to these witnesses. Therefore, to the extent of their examination-in-chief as they have not spoken anything against accused persons, their evidence is to be 156 Spl.CC No.171/2009 accepted to the limit to the extent of identifying the sale deeds and other documents.
206. P.W.101 P. Praveen Kumar has come before the court to say that, he is an employee of M/s Trishul Enterprises and used to have interaction with the customers. He identifies bunch of cheques marked at Ex.P.140. According to his evidence, at the instruction of Hanumappa Reddy and Venkata Reddy, he used to withdraw the amount from SBM, Gandhi Nagar Branch and gave it to them. He identifies his signature etc. He has been cross-examined by the counsel for accused No.2 to 5. He says that, he used to distribute the commission to the brokers at the instructions of Hanumappa Reddy and Venkata Reddy. According to him, all the borrowers came to their office when the brokers have brought them and the brokers used to process the documents. So, his evidence is quite against to the case of the prosecution.
207. P.W.102 by name K.R. Venkatesha Reddy, P.W.103 K. Nagaraj have come before the court to say that, they used to take the customers to the registration office at the 157 Spl.CC No.171/2009 instance of accused No.4 and accused No.4 used to do administration in the Trishul Enterprises. Therefore, these two witnesses have spoken before the court about taking of customers to the office of sub Registrar for the purpose of registration of site/ houses being constructed. Sale of sites have been spoken to by these witnesses. These two witnesses have been thoroughly cross-examined by the counsel for accused. They have not at all given any evidence in favour of the prosecution. The admissions so given by these witnesses in the cross-examination are quite against the case of prosecution so made out.
208. P.W.104 Channappa Rathnappagol, P.W.105 Doddappa Jyothi, P.W.106 Santhosh V. Nayak and P.W.107 P.B. Mathews have come before the court to say that, they have furnished Ex.P.484, 204 to 211, 485 to 489, 211 to 263, 490 to 492, 493 and 496 respectively. The documents were in the name of D. Sudhakar and he has furnished 8 D.D.s standing in the name of D. Sudhakar. No cross- examination is directed to these witnesses by the defence. 158 Spl.CC No.171/2009 So, their evidence is to be accepted to the extent of furnishing documents as directed by the I.O.
209. P.W.108 J. Anil has come before the court to say that he has taken photographs as per Ex.P407 to 414, 418 to 437, 442 to 460. According to his cross-examination, as per the instructions of CBI officers he has taken photographs. To the extent of taking photographs in the manner stated, his evidence is to be accepted.
210. P.W.109 J. K. Raviraj Hegde, P.W.10 K. Rajashekar, P.W.111 S. Swamy Das are examined in this case with regard to the furnishing of the documents marked at Ex.P.499 to 509, 510, 518 and 519 to the I.O. respectively. There is no cross-examination directed to these witness by the defence. To the extent of furnishing documents, their evidence is to be accepted.
211. P.W.112 S. Manjunathaiah being retired RTO has come before the court to say that he has furnished particulars regarding vehicle bearing Reg.No.KA-18- 3252 an Auto Rickshaw as per Ex.P.520 and P.521. No 159 Spl.CC No.171/2009 cross-examination is directed to this witness. So, to the extent of furnishing particulars of the said vehicle, his evidence is to be believed.
212. P.W.113 Sathish Chandra says that he has furnished copy of the cheques under letter as per Ex.P.522. According to him, on search of residential house of accused No.1, they noticed presence of cheques etc. In all 8 items are seized from the house of accused No.1. He identifies verification of all the documents as per Ex.P.522. With regard to the seizure of cheques from accused No.1, there is no dispute. Accused No.1 has not denied about the same. Therefore, much value cannot be attached to the evidence of P.W.113.
213. P.W.114 is Venkataraju says about non-issuance of NOC to M/s Trishul Enterprises. In the cross- examination, he says that for the formation of layout, no NOC is required. When no NOC is required, then what is the necessity for the prosecution to examine this witness . Therefore, the evidence of P.W.114 may not help the case of prosecution.
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214. P.W.115 C.D. Kumar says that, no NOC is issued to M/s Seven Hills Properties Private Limited. To that effect, Ex.P.524 is issued. In the cross-examination he says that, he cannot say that Singapura Village was within the jurisdiction of which Regional Office. Ex.P.524 is silent with regard to which property NOC was obtained. So, the evidence of P.W.115 may not help the case of prosecution.
215. Further he admits that, if any NOC is obtained from Pollution Control Board, the concerned Regional Officer has to furnish the report. Ex.P.524 is silent about that.
216. P.W.116 S. Nagesh has come before the court to speak that, there are no records to show that, M/s Trishul Enterprises requested for issuing NOC for developing site in Sy.No.60 and 70 of Singapura Village. In the cross-examination, he says that, as per the electricity supply regulation for formation of layout, permission of electricity authority is necessary. But says, before receiving Ex.P461, he has 161 Spl.CC No.171/2009 not visited Singapura Village. His evidence is quite against to the case of prosecution.
217. P.W.117 A.B. Hosapujari is the Divisoinal mechanical Engineer, North Zone, BMTC. He says about issuance of letter with salary particulars of Mr. Mohammed Miyan as per Ex.P.534 and 535. One Mohammed Miyan was not working in BMTC. He has been thoroughly cross-examined by the counsel for accused persons. He admits that, the salary slip marked in the file Ex.P.60 standing in the name of Mohammed Miyan may be issued from Depot No.14. Thus issuance of salary slip is not seriously disputed by this witness. According to him, the contents of salary slips pertains to Chikkamaraiah found in Ex.P.64 are not tallying with the salary slip as per Ex.P.526 and 527. In the cross-examination, he has given a clear go by. According to him, the Accounts Department, BMTC prepares salary bills. The person who prepared account bills is not examined in this case. More so, he says that, in the year 2005, he has 162 Spl.CC No.171/2009 not worked as Depot Manager of BMTC, Yeshwanthapura, Bengaluru. The stationary so used and the format of Ex.P.8(b) and (c) is similar. Thus the evidence of P.W.117 may not help the case of prosecution.
218. P.W.118 K.R. Omana Kuttan has come before the court to say about issuance of salary certificate of Sri. Philomini Raj A. marked at Ex.P.529. According to him, on comparison of Ex.P.529 and Ex.P.28(b), he finds difference in the particulars of salary of said employee. But in the cross-examination he admits that Ex.P.28(b) is the salary slip issued by his office in the name of aforesaid employee. This evidence goes against the case of the prosecution.
219. P.W.119 B.K. Jha says about issuance of letter with salary certificate of Mr. Mohan Kumar Belvadi as per Ex.P.535. But in the cross-examination he admits that, the letter head wherein Ex.P.127(a) is typed belongs to their company. In the month of October 2004, he was not working as Deputy General 163 Spl.CC No.171/2009 manager at the said company etc. he is not aware that, during 2004 who was the Manger Account in their company. In both the salary slips stated above, salary is some, so also gross salary. So, this evidence is not helpful to the case of prosecution.
220. P.W.120 B.R. Somashekar says about issuance of salary particulars of BESCOM employee as per Ex.P.536 and 537. Certain documents are confronted to this witness. He says that, on comparison of Ex.P.537(a), he says that, Ex.P.66(a) is not genuine salary slip. But in the cross-examination he says admits that, aforesaid Abdul Hakeem was an employee of BESCOM. Ex.P.66(a) is of the year 2004. He admits that, salary certificate of the aforesaid employee was issued from their office. This evidence goes against the very case of the prosecution. He further says that, without verifying the salary particulars of the employee, he cannot say whether Ex.P.66(a) contains correct particulars or not. Thus evidence of P.W.120 suffers from material particulars. 164 Spl.CC No.171/2009
221. P.W.121 Rathnamma being retired Attender in BESCOM has come before the court to say that, she came in contact with M/s Trishul Enterprises through a middle person. She visited the office of M/s Trishul Enterprises to purchase the sites through the said M/s Trishul Enterprises. Accordingly, she furnished I.D. proof, caste certificate, gas card, salary certificate to the M/s Trishul Enterprises. She says, when she applied for grant of site, she was working as office attendant in BESCOM. She has put her signature to the document. She was confronted with file marked at Ex.P.72. She says that, when she submitted her salary certificate, her gross salary was Rs.14,601/- as shown in Ex.P.72(a). She never received any notice or communication from the bank calling upon her to repay the loan amount. She has been directed with severe cross-examination by the counsel for accused. She admits with regard to execution of sale deed and obtaining of site form from M/s Trishul Enterprises. She says that, her signatures 165 Spl.CC No.171/2009 were taken on the documents. She also got executed sale deed in the office of Sub-Registrar, Yelahanka. She further admits that, agents used to come to her house and tell about availability of the sites. Now, she cannot say that one Mohammed Amanulla was amongst such agents. One thing is clear from the evidence of P.W.121 that, she contacted M/s Trishul Enterprises and availed loan from SBM and purchased the site. So to that extent, her evidence is to be accepted.
222. P.W.122 T.M. Ramesh says that, he has furnished documents as per Ex.P.151 to 154. He also identifies particulars of documents marked at Ex.P.538 and 538(a). There is no cross-examination directed to this witness by the respective counsels for accused. To the extent of furnishing these documents, the evidence of P.W.122 is to be believed.
223. P.W.123 A Balsami speaks with regard to the issuance of expert opinion as per Ex.P.551. According to his evidence, on receipt of questioned document at 166 Spl.CC No.171/2009 FSL, Hyderabad he examined 2122 questioned documents and submitted his report as per Ex.P.541 along with his opinion. With regard to the contents of the report defence is not not disputed. No cross- examination is directed by any of the counsel for accused persons. So, whatever the contents of Ex.P.541 are deemed to be admitted by the defence in this case, so to the extent of contents of report, the evidence of P.W.123 is to be accepted.
224. P.W.124 Prema Logan at the relevant time she was working as Police Inspector, CBI, BS and FC (Bank Securities and Fraud Cell), Bengaluru. According to her evidence, one Hithendra, the then Superintendent of Police registered a crime in this case and set the criminal law into motion. She identifies Ex.P.543 as an FIR. The original complaint is marked at Ex.P.1 in this case. According to her evidence, she has recorded statement of witnesses and collected the documents and with regard to her role as I.O. defence has not denied. No cross- 167 Spl.CC No.171/2009 examination is directed to P.W.124 by the respective counsels for accused. So, the evidence of P.W.124 is to be accepted to prove that, she has done part of investigation.
225. P.W.125 Chanda Rani is the I.O. in this case and HR sitting officer. In her evidence she has spoken in chief-examination about recording of statement of various witnesses so examined in this case and also collection of documents and after completion of the investigation she has filed charge sheet against the accused persons. The marathon evidence has been spoken to this by P.W.125 with regard to her role as I.O.
226. She has been thoroughly cross-examined by the counsels for accused persons. She admits that, with regard to the issuance of guidelines with regard to the investigation by the Central Vigilance Commission. She further says that as per the circular, fraud has to be placed before the board. But she says that the fraud pertain to this case was not placed 168 Spl.CC No.171/2009 before the said board. She admits that, every Manager of bank is paid to improve the bank. During her investigation, she has seen three years audit report. Further, she deposes ignorance that in the course of regular audit of the aforesaid bank, it is observed by the auditors that there is dearth of staff in the branch. The officials of bank have been examined in the case have specifically stated that there was dearth of staff in SBM, Gandhi Nagar Branch. But this P.W.125 deposes ignorance about the said facts. She admits in unequivocal terms that in respect of all the loan which accused No.1 granted have sent the control returns. But she is not aware that along with control return, the documents were sent to the Regional Office. She says purpose of sending control report to the Regional Office is to bring to its notice about transactions did by the Manager of the bank. It has come in the evidence of official witness of the bank that, control returns have been submitted to the Regional Office within 169 Spl.CC No.171/2009 stipulated time, no comments have been made by the Regional Office with regard to the transactions being done by accused No.1. He was requested to stop discounting cheques and bills exceeding discretionary limits till realization of earlier cheques etc. Thus, this P.W.125 has not ascertained about number of loan applications received by accused No.1 during Loan Mela. She admits that, the mortgages are created to secure the bank loan. So according to her evidence whenever accused No.1 has granted loan, they are secured by creating mortgages. This P.W.125 is not aware that, after suspension of accused No.1, he was asked to work in the branch to recover loan so advanced by him. So, according to the evidence of P.W.125, she does not deny, but deposes ignorance. It is the case of defence that, even after suspension of accused No.1, he was asked to work in the bank. The loan is recovered.
227. P.W.125 in categorical terms states in her evidence as under:
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"During my investigation I did not find any gratification being received by accused No.1 towards sanctioning of loan."
So, this admission of P.W.125 spoken in her evidence shows that accused No.1 has not received any gratification or any benefit, when he sanctioned loan. But she tried to improve and says that, during house search, it is noticed that, he was in possession of blank cheques. A question was directed to accused No.1 about possession of cheques. She further deposes ignorance that, accused No.1 was posted to the said Branch for recovery of loan after his suspension. So, whatever loan so granted have been recovered as per the defence. It is not denied by any of the witnesses in this case. She further admits that "there was no document possessed by accused No.1 about receipt of money by him except the blank cheques recovered during search". This evidence of P.W.125 is quite against the case made out by the prosecution. No doubt, she says that some accounts were non-performing accounts. But according to her investigation, the entire loan amount so sanctioned by accused No.1 repaid.
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228. She has given evidence in favour of defence in the cross-examination directed by the counsel for accused No.2 to 7. She says, when she completed the investigation, she concluded that, loss sufferred by the branch was due to 5% difference between house loans and commercial loans and no other loss. She further says that, if it is house loan, the interest would have been 8.5% per annum and if it is commercial loan, the interest would have been 13.5% per annum. She identifies loan transaction of one Puttaswamy marked at Ex.P.8 and the rate of interest is calculated at 11.5% per annum. She admits that, in all the housing loan transactions the interest rate is from 8.55% to 11.25% per annum. She further admits that calculation of loss of the bank is a notional loss. She further admits that, other than the statements of the borrowers recorded by her during investigation, no documents are available about forgery of borrowers documents submitted towards loan. She has not investigated about the involvement of agents in respect of forgery of the documents furnished by raising the loan from the bank. She personally has not scientifically 172 Spl.CC No.171/2009 investigated nor sent for scientific examination regarding involvement of employers or any individual attached to the said employer in forging the documents. She further says that, she personally has not collected the specimen handwritings or signatures of the borrowers or agents or employers to investigate about their involvement in the commission of crime. So also, she has not done any scientific investigation regarding the same. She admits that, her investigation was not conclusive regarding where, when and how the forgery of documents is committed by the borrowers. She failed to say that the evidence collected prima facie proved the forgery of documents.
229. To understand the forgery of documents, so furnished by the borrowers, no steps have been taken by the I.O. to send them to the FSL for scientific examination. Thus, as per the submission of counsels for accused, except the bald say in examination-in-chief of all the witnesses establish the evidence of officials of bank, no cogent and acceptable evidence is placed on record by the prosecution 173 Spl.CC No.171/2009 to prove that the role of accused in forging the documents in the manner alleged by the prosecution.
230. According to her, during investigation, she called accused No.2 to 4 for the purpose of investigation. They denied their knowledge and involvement in the commission of the crime. Now she do not remember whether accused No.2 to 4 told her that, they came to know about forgery of documents only when the bank has informed them. She has not collected the signatures of accused No.2 to 4. She has not noticed any of the transportation of goods as per Ex.P.539. She has not verified the documents in respect of sales tax copies etc. So if the entire cross-examination directed to this P.W.125 is perused, she has given quite different evidence than the evidence spoken to by other witnesses. It can be stated that, fundamentally her investigation suffers from infirmity. The I.O.'s are the supervisors of the investigation in all criminal cases. Unless there is corroboration of evidence of all other witnesses, I.O.'s evidence become formal in nature.
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231. In this case, number of documents have been produced and marked in the evidence. Amongst the said documents, Ex.P.1 is the complaint so filed by the complainant before Superintendent of Police, CBI, Ex.P.2 is the General Circular of the bank regarding limiting the housing loan etc., Ex.P.3 is confidential letter. Like we find Ex.P.4 to 7 being the letters, note etc. Ex.P.8 to 131 are files managed by SPB Branch regarding grant of house loan to various borrowers. Amongst these documents, some documents commencing from Ex.P.75(a) to 96(a), 99(a) are alleged to be the fake salary certificate. But the witnesses so examined in this case say that, they never know about forgery of documents. The real persons who are authorized to issue salary certificates are not cited as witnesses or examined before this court to prove the forgery of the said documents. So merely because the documents are produced alleging that they are forged documents, without any proof, it cannot be stated that, story so put forth by the prosecution is to be accepted. The I.O. has not taken any pain in sending these documents to prove that, these 175 Spl.CC No.171/2009 documents are really forged documents. The Dominic who was an agent of M/s Trishul Enterprises is no more. Amanulla has not supported the case of prosecution. They are the agents.
232. Ex.P.132 to P.138 are the cheque purchase documents containing challans, transfer debit vouchers etc. Ex.P.139 to P.146 are the receipt memo, likewise, Ex.P.148 also. These documents are not disputed by the defence. Likewise, we find Ex.P.149, 140 and 151 being the documents collected by M/s Seven Hills Properties Limited, SBM, Bengaluru Zone etc. To prove that the Loan Utsav or Loan Mela was conducted, the documents at Ex.P.150 and 150(a) are produced by the prosecution. These documents are not in dispute. Ex.P.151 is the Chief Manager Letter addressed to the SPB Branch regarding conducting of audit etc. In this document 367 house building loan accounts were covered under audit, Ex.P.152 is the audit report commencing from 04.08.2003 to 30.12.2005. It is noticed in the audit report that, over due interest of bills purchase the amount detected was 3.34 lakhs and amount recovered 176 Spl.CC No.171/2009 was 3.34 lakhs. This observation regarding effectiveness/ efficiency of concurrent audit system as looks into all areas assigned. General observations have been made by the audit party with regard to credit risk management and housing loans. The branch is purchasing cheques for large amounts very frequently. The manager has exceeded the discretionary limits etc. The control returns have been submitted. Likewise, we find Ex.P.153 letter of management. Ex.P.154 is another audit report. In this report guidelines for quantifine deviations and avoiding scores have been mentioned as 04% very few, 09% few, 20% some and above many. Ex.P.155 document containing verification employment and salary certificates dated 13.06.2009 in respect of various employees. Likewise, Ex.P.156 to P.158 are the letters of confirmation from employment. So also Ex.P.159 is the spot panchanama in respect of Sy.No.18/2 and 19 of Kallugopanahalli village. There was demarcation of 4 stones etc. Ex.P.160, 161 are the spot panchanama in respect of Sy.No.228/2 measuring 1 acre 32 guntas of Banandur village, spot panchanama in 177 Spl.CC No.171/2009 respect of Sy.No.60 and 70 of Singapura village. While marking these documents, no objection is raised by the defence. Ex.P.162 is the joint account opening form of accused No.2 to 4. Ex.P.163 is the crtificate under Sec.2(a) of Banker Book of Evidence Act, Ex.P.164 is account opening form of accused No.2, Ex.P.65 is the statement of account of Seven Hills Properties. Likewise we find various documents produced by the prosecution. Ex.P.166 to P.167 being the account opening form and other documents pertaining to B.K. Chandrashekar and others. Ex.P.178 to 180 are the cheque purchase registers. These have not been disputed by accused No.1. He admits about cheques as mentioned in these registers. Ex.P.181 to 189 are the housing loan circulars issued by the bank. In these circulars certain guidelines are issued to all the branches. Ex.P.190 and 191 are the empenlment of valuers-approved list. Ex.P.192 is the bill register showing credit facility limit. Ex.P.193 is cashier's receipt day book. Thus other documents are Ex.P.194 to 196 are the letters of reqeust etc., Ex.P.197 is the circular showing scheme of delegation 178 Spl.CC No.171/2009 of financial powers addressed to all the officers of the bank, Ex.P.198 is letter addressed by SBM Division-IV, Bengaluru Zone to the Chief Manager, SPB, Gandhi Nagar Branch dated 05.01.2006 with regard to the cheque purchases and deviations in sanction of loans, Ex.P.199 is the document showing guidelines regarding discount and purchase of bills etc. Ex.P.200 is the reply given by SPB Branch. It is advised to stop immediately financing for DHLs against salary certificates of borrowers unless they are supported by IT Returns and Employers Form No.16. Thereafter it was stopped. Ex.P.201 is the letter address by SBM Region- IV regarding borrowers salary certificates which are not supported by Form No.16 and other documents, Ex.P.202 is a letter dated 05.01.2006 advising Chief Manager, Gandhi Nagar branch stating that pending rectification of irregularities/ deviations. It is advised not to sanction any loans and submit proposal with his recommendations for sanction at their end. This letter shows that it was advised to the branch pending rectification of irregularities/ deviations and it is advised not to sanction any loans 179 Spl.CC No.171/2009 thereby ratified the act of accused No.1. Ex.P.203 is the letter addressed to the DGM, Bengaluru about borrowers salary verification certificates. Ex.P.204 to 211 are the Demand Drafts submitted by accused No.2 for encashment. Ex.P.212 to P.263 are the cheques. The contents of these cheques are not disputed. Ex.P.264 to 271 are the letters addressed to AGM and others regarding availment of housing loans by various borrowers. Ex.P.272 is the verification report on the house building loan sanctioned from 01.01.2005 by Gandhi Nagar Branch. Ex.P.273 is the letter of undertaking by accused No.2 to 4 on behalf of M/s Trishul Enterprises stating that they have entered into tripartite joint development agreement with the owners of converted land bearing Sy.No.70 measuring 4 acres, 19 guntas. When there is tripartite agreement, then loan amount would be directly released in favour of developer. Certain properties have been resold and some borrowers have got constructed houses and are residing therein. So it is admitted by the borrowers that they have purchased sites. Houses were constructed and keys were handed over 180 Spl.CC No.171/2009 to them. Ex.P.274 is the letter of undertaking on behalf of Trishul Enterprises signed by accused No.4 brining to the notice of Gandhi nagar branch with regard to tripartite agreements. Ex.P.275 to P.292 are the seizure memos of various documents by the I.O. during investigation. These documents are not disputed. Ex.P.293 to 301 are the documents collected by the I.O. from HAL, BWSSB. Ex.P.302 to 310 are also the letter, pay slip, salary slip etc issued by KSRTC showing pay particulars of these employees, Ex.P.311 is a death certificate of Ahesha who died on 07.11.2007. Ex.P.312 to 333 are the Form No.16, salary certificate, pay slip of various employees who borrowed loan from Gandhi nagar branch. Ex.P.334 is the cheque dated 16.12.2004 in the name of Chamundi M. for Rs.11,500/- signed by partners of Trishul Enterprises. But this Chamundi have been turned hostile and nothing worth is elicited from the mouth of this witness. He is examined as P.W.46.
233. Ex.P.336 is the absolute sale deed executed in favour of Smt. Mary Stephens by Andanappa and V.N. Ajith 181 Spl.CC No.171/2009 Prasad Jain i.e. accused No.3. It is a second sale being not disputed by the defence. Ex.P.337 is the letter address by the BEML Ltd. to the I.O. regarding certification of pay slip and Form No.16 in respect of late Venkata Rao. Ex.P.338 is a statement of P.W.58 Firoz Pasha. He has been turned hostile. Likewise P.W.59, P.W.60, 61, have been turned hostile as stated supra. They say that, they have not stated before the I.O. as per Ex.P.339, 339(a), (b), (c), 340, 349(a),
(b) and (c) and 341 respectively. The said evidence is not helpful to the case of prosecution.
234. Ex.P.342 is a letter addressed by ING Vysya to the I.O. regarding M/s Trishul Enterprises and M/s Seven Hills Properties and M/s Seven Hills Distilleries Limited to show that cheques received at the time of realization along with the schedule etc. Ex.P.343 is another letter of ING Vysya, Chellakere Branch addressed to the I.O. enclosing original credit voucher dated 05.12.2005 for Rs.34.50 lakhs in the account of M/s Meerams Overseas Pvt. Ltd. Ex.P.344 is the current account opening form in the name of accused No.2. Ex.P.345 is the account extract. Ex.P.346 is the copy 182 Spl.CC No.171/2009 of register of cheques returned by ING Vysya. Ex.P.347 to 358 are the cheques in the name of Seven Hills Properties and others for various considerations about presentation of cheques. None of the accused have denied these documents. Ex.P.359 is the account opening form in the name of accused No.2. Ex.P.360 and 361 are the transfer vouchers. Likewise Ex.P.362 to 374 are the certificate with document sent for realization of Hundis. Ex.P.375 is a DD in the name of accused No.5 for Rs.73,60,000/-. Ex.P.376 is the registers showing telegraphic transfers payable. Ex.P.377 is the postage book and relevant entires. Ex.P.378 is the letter addressed by RTO, Mangalore dated 31.03.2009.
235. Ex.P.379 is a register maintained by Mangalore Road Lines for having arranged vehicles to various destinations showing the registration numbers of the vehicles by collecting commissions. Ex.P.380 to 382 are the blank letter had of Mangalore Road Lines and the letters have been addressed to the RTO as per Ex.P.381. Ex.P.383 is the valuation report prepared by K. Thammaiah and 183 Spl.CC No.171/2009 Associations being the Chartered Engineers and registered valuers. These documents are not disputed by the defence. Ex.P.384 and 385 are the letters addressed by Asst. Registrar of Companies regarding registration of said companies. Ex.P.386 is a letter issued by Asst. Registrar of companies. Ex.P.387 is the certificate of incorporation of Meerams Agro Foods Private Limited with necessary documents. Likewise, we find Ex.P.388 to 585 being the letter, account opening forms etc., which have been collected by the I.O. during the course of investigation.
236. On reading all these documents, as the contents of these documents have not been denied by the witnesses. It can be very well stated that, the defence has admitted these documents. The grievance of the prosecution is that, for unlawful gain, this accused No.1 has granted loan and he has acted unbecoming of a public servant. Accused No.2 being MLA at the relevant time and accused No.3 to 5 are in connivance each other have committed the offences of criminal conspiracy etc. Thus on reading the charge so framed in this case, so many allegations are made against 184 Spl.CC No.171/2009 the accused persons. The valuation report of residential layout is also been obtained by the I.O. in respect of sites being formed in Sy.No.18/1, 13/1 of Kallugopanahalli village. These documents though are not denied, it is the bounden duty of the prosecution to prove the ingredients of the offences made out against the accused persons.
237. On behalf of defence Ex.D.1 to D.14 are marked in this case. These documents produced by the defence show that letters have been addressed by the Head Office to the accused No.1 and the accused No.1 in turn addressed reply etc. Relevant admissions of some witnesses have been marked in this case on behalf of the defence. So, to attract the provisions of the offences alleged to have been committed by the accused persons, it is the bounden duty of the prosecution to prove the ingredients of the offences so made out against the accused persons. Now let met analyze the ingredients of the offences made out against the accused persons so as to come to the definite conclusion that whether prosecution is able to establish the guilt of the accused to hilt or not. 185 Spl.CC No.171/2009
238. The prosecution has alleged that, these accused persons have committed the offences under Sec.120-B, 420, 468, 409, 471 of IPC and under Sec.13(i)(d) R/w 13(2) of Prevention of Corruption Act, 1988. Sec.120-B of IPC speaks of punishment of criminal conspiracy. It is the bounden duty of the prosecution to prove the essential ingredients of the offences made out against accused persons. So far as this offence is concerned, the essential ingredients are:
1. Agreement between two or more persons.
2. Agreement must relate to doing or causing to be done either (a) a illegal act or (b) an act which is not illegal in itself but is done by illegal means.
239. What is therefore necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. Mere knowledge or discussion or generation of a crime in the mind of the accused is not sufficient to constitute an offence. The offence takes place with the meetings of minds 186 Spl.CC No.171/2009 even if nothing is further done. It is an offence independent of other offences and punishable separately. Thus, the prosecution is required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of proving criminal misconduct on the part of an accused.
240. This criminal conspiracy is generally hatched in secrecy. Thus direct evidence is difficult to obtain or access. The offence can be proved by adducing circumstantial evidence or by necessary implication. Meeting of minds to form a criminal conspiracy has to be proved by adducing substantive evidence in cases where circumstantial evidence is incomplete or vague. The gist of the offences of conspiracy then lies not in doing the act or effecting the purpose for which the conspiracy is formed nor in attempting to do them between the parties. The Hon'ble Supreme Court of India says that, agreement is essential.
241. Therefore, the prosecution should prove (a) that the accused agreed to do or caused to be done and (b) that 187 Spl.CC No.171/2009 such act was illegal or was to be done by illegal means (c) that means overt-act was done by one of the accused in pursuance of the crime.
242. So far as offence of cheating is concerned, Sec.415 of IPC defines cheating. The definition of cheating contains two parts. First comes the main part "whoever, by deceiving any person------- "words which obviously apply to the whole section. Then comes the first part "fraudulently, or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property. "Then comes Part 2, which is an alternative to sub-part 1 viz, "or intentionally induces mind, repuration or property. Therefore, definition of offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which such a transfer occurs.
243. The prosecution is under obligation to prove the ingredients i.e. deception of any person who fraudulenty or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall 188 Spl.CC No.171/2009 retain any property or intentionally inducing the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to any person in body, mind, reputation or property.
244. Therefore, in order to constitute the offence of cheating, it would be necessary to show that a person had fraudulent or dishonest intention at the time of making promise, mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. Therefore, dishonest intention from the beginning is necessary.
245. Sec.420 of IPC speaks of ingredients of the offence of cheating, viz., are not only that, the accused has cheated someone but also that by doing so, he has dishonestly induced the person who was cheated to deliver property. So the prosecution is under the obligation to prove all these factual aspects coupled with legal position. 189 Spl.CC No.171/2009
246. So far as offence under Sec.409 of IPC is concerned, we have to read the provisions of Sec.405 of IPC, which speaks of criminal breach of trust. This criminal breach of trust have got its own scope. Terms of section are very wide. It applies to one who is in manner entrusted with the property or dominion over property. In criminal misappropriation, the property comes into the possession of the offender by some casualty or otherwise, and he afterwards misappropriates it. Here in this case, it is alleged that accused No.1 was the Chief Manager of SPB, Gandhi Nagar Branch, who was entrusted to deal with the money.
247. In the case of criminal breach of trust, offender is lawfully entrusted with the property and he dishonestly misappropriates the same, or wilfully suffers any other person to do so, instead of discharging the trust attached to it. Therefore, the ingredients are:
1. Entrusting any person with property or with any dominion over property.190 Spl.CC No.171/2009
2. That person entrusted (a) dishonestly misappropriating or converting to this own use that property; (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation--
(ii) of any direction of law prescribing the mode in which such trust is to be discharged, or
(ii) of any legal contract made touching the discharge of such trust.
To misappropriate means "improperly setting apart for one's use to the exclusion of the 'owner'. 'Converts' means appropriation and dealing with property of another without right as if it is his own property. Here there may be appropriation by a mental act without any actual expenditure of the money thus appropriated.
Sec.406 of IPC speaks of criminal breach of trust by public servant, or by banker, merchant or agent. The following are essential ingredients of the offence. They are:
(a) accused must be public servant, (b) he must have been entrusted, in such capacity, with property. (c) he must have committed breach of trust in respect of such property. 191 Spl.CC No.171/2009
248. In this case, accused No.1 was the public servant and he was working as Chief Manager of SPB, Gandhi Nagar Branch. It is alleged that, he must have committed breach of trust in respect of such property i.e. funds being distributed or granted to the various borrowers. Therefore, to constitute an offence, it is the obligation by the prosecution to prove entrustment, which is the essential requirement.
249. So far as offence under Sec.467 and 468 of IPC are concerned, these sections speaks of forgery for the purpose of cheating. These sections applies to those cases where forgery has been committed for the purpose of cheating. Forgery though a substantive offence, partakes of the nature of an attempt. It is usually an act done in furtherance of some other criminal design. If it can be proved that, the purpose of the offender in committing the forgery is to obtain property dishonestly, or, if his guilty purpose comes within the definition of cheating, then only he is punished under the present section. 192 Spl.CC No.171/2009
250. First of all, prosecution has to prove cheating and cheating must complete and subsequent forgery.
251. Sec.471 speaks of using as of genuine, a forged document. The object of this section is that, use of forged document which is contemplated by Sec.471 of IPC. In such a use as causes wrongful gain or wrongful loss. This section applies to the case of person who appears before some other person, or before a court with a document and endeavours to induce that person or court to do some act which he or it would not do if it was known to be a forgery. Therefore, the prosecution is to prove the fraudulent or dishonest use of document as genuine. It is not necessary to constitute a forgery under Sec.463 of IPC that the "property" with which it is intended that a false document shall cause a person to part, should be in existence at the time when the false documents was made. It must prove (i) that the document was a forged one, (ii) That the accused used such document, (iii) That he used it as a genuine one,
(iv) that he knew, or had reason to believe, that it was a forged one, (v) that he used it dishonestly or fraudulently. 193 Spl.CC No.171/2009
252. Thus, the onus on proving the offence under Sec.471 lies on the prosecution. Therefore, whether accused renders false explanation as to how he came into possession of a allegedly forged document, it cannot be used adversely against him to order for conviction under this section.
253. So far as provisions of Sec.13 of the Prevention of Corruption Act 1988 are concerned, they speak of criminal misconduct by public servant. The said section reads as under:
13. Criminal Misconduct by a public servant.-
(1) A public servant is said to commit the offence of criminal misconduct.-
(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any properly under his control as a public servant or allows any other person so to do; or 194 Spl.CC No.171/2009
(b) if he intentionally enriches himself illicitly during the period of his office.
Explanation 1.- A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.
Explanation 2.- The expression "known sources of income" means income received from any lawful sources.] (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not 195 Spl.CC No.171/2009 less than (four years) but which may extent to (ten years) and shall also be liable to fine.
254. Prosecution is under obligation to prove the demand and acceptance of bribe which is a sinequonon for invoking provisions of Sec.7 and 13 of the Prevention of Corruption Act. If factum of demand of bribe and acceptance there of is not established, then conviction under Sec.13(2) would not also be sustainable. It so held by the Hon'ble Supreme Court of India in a judgment reported in 2015(1) Crimes 130 SC in case between (C. Sukumaran Vs State of Kerala). In so far as the offence under Sec.13(1)
(d)(2) of the Prevention of Corruption Act is concerned, the public servant is said to commit the offence of a criminal misconduct if he, by abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. Therefore, it is required to the prosecution to show (a) that pecuniary advantage obtained by the accused (b) that said pecuniary advantage 196 Spl.CC No.171/2009 was obtained by the accused No.1on account of abuse of position by him.
255. In so far as Sec.13(1)(d) of the Act is concerned, the prosecution have to prove the essential ingredients, they are: (a) That, he should be a public servant. (b) that he should have used corrupt or illegal means, or otherwise abused his position as a public servant and (c) That he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.
256. These are the real requirements the prosecution has to prove before the court to prove against the accused persons in a case of present nature.
257. After recording statement under Sec.313 of Cr.P.C., the accused No.1 submitted his written statement under Sec.313(5) of Cr.P.C. and narrated the entire defence in his statement. He specifically contends that, he was transferred to the Specialized Personal Banking branch as Chief Manager to open the branch which was a new concept to provide exclusive service to personal segment 197 Spl.CC No.171/2009 customers, providing personal loans like Housing, Vehicle, Education etc. He says that, said branch was opened in the month of August 2003. The said branch has been awarded as "Best Metro Branch' with A+ Audit Rating". NPA was nil for 3 years. He admits about transactions with M/s Seven Hill Properties and M/s Trishul Enterprises. But specifically contends that, immediately after getting such information about fake salary certificate have been presented by the borrowers, sanctioning of the loan was stopped. He speaks of role being played by him. On each aspect, he has given his statement in his reply to Sec.313 statement.
258. Along with written statement, accused No.1 has produced voluminous documents to show that, how far his services were recognized by the Regional Office and he was termed as 'aggressive banker'. Even he has submitted control return statement showing the transactions being entered into. According to him, he has not exceeded the limits in that transactions. He has achieved target, which was fixed by Regional Office within short span of time. 198 Spl.CC No.171/2009
259. I have scrupulously perused the written statement of accused No.1 and the documents so produced by him along with his statement. These documents show the work being carried on by accused No.1 as a Chief Manager of the said SPB, Gandhi Nagar Branch. Even the auditors have observed that, to cope up the speed of this accused No.1, additional staff is required to be posted to the said branch. This fact is not denied by the prosecution.
260. He also stated about bills purchase. According to him, he discounted "three bills" of M/s Seven Hills Distilleries only once in a single day in his 3 years of service in the branch to the extent of Rs.1.10 crores. He states that, he has obtained prior oral permission from his controller Sri. Venugopal and also submitted control return wherein he has clearly mentioned that, oral permission was obtained from AGM. The said Venugopal has not stated anything about this discounting of bills by this accused No.1 in his evidence on oath. There is no whisper about that. In addition to personal guarantee, he has obtained equitable mortgage of valuable property. 199 Spl.CC No.171/2009
261. Likewise, we find accused No.2 has filed his written statement under Sec.243(1) of Cr.P.C. He statees that, the capacity as partner of M/s Trishul Enterprises, the accused No.6 as Managing Director of M/s Seven Hills Properties Pvt. Ltd. i.e. Accused No.7, they had transactions with the aforesaid bank. He says that apart from acting as Director and Partner, concerning the management of the companies, he had not been involved in the day to day affairs of accused No.6 and 7 or in conducting of the business of accused No.6 and 7, other than as authorized signatory for bank transactions. They used to conduct their business independently. He says that, M/s Trishul Enterprises i.e. Accused No.6 and M/s Seven Hills Properties Pvt. Ltd. i.e. accused No.7 had commenced developing two real estate projects in the year 2004 and 2005 respectively. These projects were already launched by some other company. P.W.101 Praveen and P.W.102 Venkatesh Reddy and P.W.103 Nagaraj were looking into the administration work of the said companies. For registration, he had accused No.3 Ajith Prasad Jain and 200 Spl.CC No.171/2009 also P.W.103 Nagaraj. He specifically states that, he was instructed by his office to obtain the power of attorney for some of the borrowers and took the title deeds from the bank by repaying the loan.
262. With regard to M/s Seven Hills Distilleries is concerned, he says that, it involved in import and sale of food pulses including Canadian yellow Peas and Canadian Chick Peas. Between 2004 and 2010, this company had large volumes of business with M/s Meerams Overseas Pvt. Ltd. Of which Sri. Ramesh, accused no.5 is the Managing Director. He speaks of various documents such as Ex.P.539(a) to 539(c). According to him, there was no occasion to transport any grains from Chellakere to Mangalore but from Mangalore godown to the industry of accused No.5 in Mangalore. Therefore, all the other allegations made by the prosecution against accused No.1 are false. He states that, he is the valued customer of the bank.
263. Accused No.3 has filed his written statement. He specifically contends that, it is in December 2005, he is 201 Spl.CC No.171/2009 informed about fraud committed by borrowers and agents in respect of the income documents pertaining to borrowers. Accused No.2 has informed them about several loans pertaining to their layouts being fraudulently obtained and that the documents relied on by several borrowers were fabricated. They took steps for repayment of the loan. They came to know that, agents have played fraud by fabricating the records. As instructed by accused No.2, they obtained Power of Attorney in their name from some borrowers, repaid the loans and took return of the title deeds. He admits that, few high valued cheques had been discounted by the bank in his favour and favouring accused No.6 and same was upon good faith and only after obtaining a security to the extent of Rs.4 crores by the bank as demanded by accused No.1.
264. Accused No.4 by filing his written statement, specifically contends that, he was handling the administration of the office of M/s Trishul Enterprises. P.W.101 Praveen and P.W.102 Venkatesh Reddy were also the staffs so appointed. He speaks of accompanying the 202 Spl.CC No.171/2009 customers to the layouts, registration of document in respect of sites being proposed to be purchased by the intending purchasers etc. On coming to know about the transactions by obtaining loan by producing fake salary certificate, he says that accused No.2 instructed him to stop entertaining any borrowers through brokers and asked them to directly deal with the borrowers. There was no forgery of document by any of these accused persons.
265. Accused No.5 also has filed his written statement contending that, he knows M/s Seven Hills Distilleries of which the accused No.2 is the Managing Director. The said company has been involved in import and sale of pulses including Canadian yellow Peas between 2004 to 2010. His company had purchased huge volumes of pulses from M/s Seven Hills Distilleries. The lorry receipts so marked in this case were brought to him for his signature, but he signed them as consignee.
266. On scrupulous reading of these documentary evidence produced by the accused persons, this M/s Seven Hills Distilleries have maintained ledger account with M/s 203 Spl.CC No.171/2009 Meerams Overseas Pvt. Ltd., wherein, we find ING Vysya bank the cheques were sent for collection. Even, E filing of assessment was adopted by the accused persons to pay commercial tax. There is no amibiguity in these documents and these documents are not denied by the prosecution.
267. Relying upon respective statements of accused No.1, and 2 to 5, it is submitted by the respective counsel for accused No.1 and 2 to 7 that, there is no misappropriation, there is no cheating, there is no commission of the offences under the provisions of Prevention of Corruption Act. There is no forgery of any documents by these accused persons.
268. On reading the entire evidence spoken to by the witnesses, it can be stated that, defence of the accused persons is, they have not committed any offence in the manner alleged by the prosecution.
269. During the course of arguments, learned SPP has relied upon some of the judgments reported in (2013) 2 SCC 162 in case of (N.V. Subba Rao Vs State through 204 Spl.CC No.171/2009 Inspector of Police), (2009) 11 SCC 737 in case of (R. Venkatkrishnan Vs Central Bureau of Investigation).
270. I have scrupulously perused the citations being relied upon by the learned Special Public Prosecutor. With regard to the principles laid down in the said judgments, there is no dispute as such. It is settled principle of law that, for the purpose of reading the conclusion, the court can rely on a factual presumption. Each case must be determined on its own facts. On going through the factual details in the aforesaid documents, I am of the opinion that, the said judgments are not helpful to the case of the prosecution. I have already referred to the evidence by the prosecution, particularly evidence of bank officials who have come before the court to adduce their evidence. Though they speak so many facts in their examination-in- chief, but in the cross-examination, they have given clear go bye.
271. Learned counsel for accused No.1 relied upon the following judgments:
205 Spl.CC No.171/2009
1. (2009) 6 SCC 77 (S.V.L. Murthy Vs State rep. By CBI, Hyderabad)
2. (2009) 8 SCC 617 (State of Madhya Pradesh Vs Sheetla Sahai and Others)
3. (1977) 2 SCC 394 (Major S.K. Kale Vs State of Maharashtra)
4. (2000) 4 SCC 168 (Hridaya Ranjan Prasad Verms & Ors. Vs State of Bihar and Another)
5. (2005) 12 SCC 631 (K.R. Purushothaman Vs State of Kerala)
6. (2005) 12 SCC 641 (Kanshi Ram Vs State of Punjab), and
7. (2002) 1 SCC 241 (S.W. Palanitkar and Others Vs State of Bihar and Another)
272. I also scrupulously perused the principles laid down in the aforesaid judgments. In the first judgment 206 Spl.CC No.171/2009 relied upon by the counsel for accused No.1, the Hon'ble Supreme Court of India has held as under:
A. Penal Code, 1860-Sec.415, 420, 405, 409 and 120-B - Cheating - Ingredients -
Existence of an intention to cheat at the time of making initial promise or formation of contract - Importance of and need to prove - Held, complainant is required to show that accused had fraudulent or dishonest intention at the time of making promise or representation
- In the absence of culpable intention at the time of making initial promise, no offence is made out under S.420.
- In present case, held, allowing of cheque discounting facility by bank officials to customers of Bank, without any criminal intent being proved, did not amount to commission of offence, particularly as 207 Spl.CC No.171/2009 facility allowed was not contrary to RBI Guidelines - It could not therefore also be said that there was meeting of minds in a conspiracy to commit an offence, nor could the act of corruption be inferred from transactions between Bank and its customers - Further, held, accused officials might have been prosecuted under S.409 but they were not charged under this section - Their conviction therefore set aside - Prevention of Corruption Act, 1988 - S.13(1)(d) -
Banker and Customer - Cheque discounting facility - Propriety of granting
- RBI Guidelines.
B. Penal Code, 1860 - Ss.409 & 405 and Ss.415 & 420 - Charges framed only under Ss.415 & 420 - No charge famed under S.409, though offence, if any, was that under S.409 - Effect - Criminal 208 Spl.CC No.171/2009 Procedure Code, 1973 - Ss. 215, 216, 218, 221 & 222 - Criminal Trial - Charge
- Improper charge - Effect.
Appellant was a Branch Manager of State Bank of India. He and some of his colleagues were prosecuted under Sections 415 and 420 read with Section 120-B IPC, and Section 13(1)(d) of the Prevention of Corruption Act, 1988, for permitting discounting of local cheques to some customers of the Bank. Accused 4 and 5 were bank officials while Accused No.1 to 3 were private parties having account with the Bank.
The issues involved were whether the bank officials and the customers had entered into criminal conspiracy to commit the offence of cheating against the Bank under Sections 415 and 420 209 Spl.CC No.171/2009 IPC, and whether the accused persons had obtained any illegitimate advantage, warranting punishment under the Prevention of Corruption Act.
Trial court convicted the accused persons. High Court upheld their conviction. The Supreme Court however took note of the fact that there was no evidence on record to prove that there was an intention to cheat the Bank. On the other hand, there was evidence on record that appellant had stopped cheque discounting facility and he had resumed it only after verbal instructions from a superior officer, PW 20. Moreover, the bank officials appeared to have acted in the overall interest of the Bank for the purpose of promoting its business, through there might have been some irregularity in do so.
210 Spl.CC No.171/2009Allowing the appeals, the Supreme Court Held:
One of the ingredients of cheating, as defined in Section 415 IPC, is existence of an intention to cheat at the time of making initial promise or existence thereof from the very beginning of formation of contract. The complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under 211 Spl.CC No.171/2009 Sec.420 IPC can be said to have been made out.
No evidence has been brought on record to show that accused No.4 or for that matter, Accused 5 i.e. the bank officials entered into any conspiracy with others. Accused 4 had stopped grant of the said facility and only at the instance of P.W.20, was the said facility restored. It may be that there had been certain procedural irregularities in the transaction. However, sufficient evidence is available on record to show that the officers had extended the discounting facility for the purpose of promoting the business of the Bank, for which initiative had been taken by PWs 19 and 20. It has not been disputed that after cheque discounting facility was stopped in April 1989 by Accused 4, there had been a 212 Spl.CC No.171/2009 meeting at the residence of PW 20. In his deposition, PW 20 categorically admitted that the said meeting was arranged at the instance of Accused 1. This meeting was arranged at PW 20's residence on the day he was on leave. Accused 1 must have developed grievance against Accused 4 on account of stoppage of the cheque discounting facility. If immediately thereafter the said facility had been restored by Accused 4, a stand taken by him that it was done under the oral instructions of the higher authorities appears to be plausible. The prosecution, apart from the fact that it had failed to bring on recored any evidence of conspiracy, must also be held to have failed to bring on record any evidence of wrongful gain so as to attract provisions 213 Spl.CC No.171/2009 of the Prevention of Corrupt Act, 1988 or otherwise.
The accused persons have not been charged for commission of the offence under Sec.409. Conspiracy by and between the Bank officials and Accused 1 to 3 has been stated to be for commission of the offence of cheating. It was necessary for the prosecution to establish that there had been meeting of minds at the time when the facility had been granted. Such meeting of minds on the part of the accused persons has not been proved.
Furtherance, the prosecution case even if given face value and taken to be correct in its entirety does not lead to a finding that even Accused 1 to 3 had any 214 Spl.CC No.171/2009 wrongful intention at the time when the contract was initiated.
The Special Judge as also the High Court proceeded on the basis that cheque discounting facility could under no circumstances be made available to them. This was not a correct approach. RBI Guidelines categorically show that it was not a wrong practice. It is one thing to say that there has been an abuse of a prevalent banking practice for the purpose of causing wrongful loss to the bank and causing wrongful gain to others but it is another thing to say that by reason thereof, ingredients of cheating are attracted.
The offence, if any, was committed under Sec.409 IPC but the accused persons have not been charged under 215 Spl.CC No.171/2009 Sec.409 IPC; even Accused No.1 to 3 have not been charged for entering into a conspiracy with accused 4, 5 and 6 in respect of commission of offences under the Prevention of Corruption Act. It is in the aforementioned situation, the judgment of conviction and sentence cannot be upheld.
The conclusions can be summarized as follows:
(a) The prosecution did not lay down any foundational facts to arrive at a finding of dishonest intention on the part of the appellants, nor has any such finding has been arrived at by the trial court or the High Court.
(b) The circumstances which were considered sufficient to bring home the charges against the appellants were: the 216 Spl.CC No.171/2009 cheques of Accused 1, 2 and 3 were discounted after purchasing cheques;
cheques were deposited after a gap of one to four days; only later were the amounts deposited in the account, which circumstances are not sufficient to hold the appellants guilty for commission of offence under Sec.420 IPC as all the actions on the part of the bank officers were in consonance with the long-
standing banking practice.
(c) Accused 4 had taken care of having adequate security to ensure that the bank does not suffer any loss, the gain if any was caused to the bank.
(d) The appellants acted on instructions by the higher authority.
217 Spl.CC No.171/2009
(e) The prosecution evidence does not establish any conspiracy on their part vis- a-vis Accused 1, 2 and 3.
273. So also it is held by Hon'ble Supreme Court in case of SVL Murthy Vs State in the second judgment stated supra about probative value of the evidence to be taken into consideration while dealing with such cases. In the 3 rd judgment relied upon by the counsel for accused No.1, it speaks of the provisions of Prevention of Corruption Act and as well as how to prove the criminal misconduct etc.
274. In the 3rd judgment, the Hon'ble Supreme Court of India have observed with regard to intra-departmental correspondences. In this case, there were inter- departmental and intra-departmental correspondences were done between accused No.1 and his Head Office. These judgments laid down essential ingredients to prove the offences so made out against the accused persons.
275. Likewise, the counsel for accused No.2 to 7 also relied upon the following judgments:
218 Spl.CC No.171/2009
1. (2018) 7 SCC 581 (Sheila Sebastin Vs R. Jawaharaj and another.
2. (2009) 8 SCC 751 (Mohammed Ibrahim and others Vs State of Bihar and another.
3. (1980) 1 SCC 460 (Chatt Ram Vs State of Haryana.
4. (2009) 6 SCC 77 (S.V.L. Murthy Vs State represented by CBI, Hyderabad.
In these judgments, the definition of forgery and as well as other aspects have been discussed by the Hon'ble Supreme Court of India.
276. In the first judgment at Para 17, the definition of forgery is being stated. At Para 25, 28 and 29, the Hon'ble Supreme Court of India have interpreted definition of false document etc. For better appreciation, it is just and proper to incorporate the provisions incorporated by Hon'ble Supreme Court of India in this judgement 219 Spl.CC No.171/2009
25. Keeping in view the strict interpretation of penal statue i.e. referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Sec.464 further clarifies that, for constituting an offence under Sec.464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. "Forgery" and "fraud" are essentially matters of evidence which could be proved a fact by direct evidence or by 220 Spl.CC No.171/2009 inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that "false document".
Hence, neither Respondent 1 nor Respondent 2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as the appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.
28. In this case at hand, the imposter has not been found or investigated into by the officer concerned. Nothing has been spilled 221 Spl.CC No.171/2009 on the relationship between the imposter and Respondent 1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof. In this case, the trial court as well as the appellate court got carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e. PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.
29. This case on hand is a classic example of poor prosecution and shabby investigation 222 Spl.CC No.171/2009 which resulted in the acquittal of the accused. The investigating officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The investigating officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the accused, still the accused could not be convicted. The laches in the lopsided investigation goes to the root of the matter and fatal to the case of prosecution. It this is the coordination between the prosecution and the investigating agency, every criminal case tend to end up in acquittal. In the process, the common man will lose confidence on the criminal justice delivery 223 Spl.CC No.171/2009 system, which is not a good symptom. It is the duty of the investigating officer, prosecution as well as the courts to ensure that full and material facts and evidence are brought on record, so that there is no scope for miscarriage of justice.
277. It is laid down by the Hon'ble Supreme Court of India in the 3rd judgment that, to establish the forgery, it is the bounden duty of prosecution to prove that, accused participated in any manner in the act of forgery and that, he had requisite mens rea when he presented it before the concerned official to claim benefit. Therefore, actual participation of accused in forgery is essential requirement to prove the offence of forgery.
278. I have scrupulously perused the provisions laid down in the afore said judgments.
279. On reading the entire allegations made by the prosecution, the main allegation leveled against accused No.1 are that, he wrongfully exceeded the limit of 224 Spl.CC No.171/2009 honouring cheques, discounting bills facility, granting of house loans etc., which was extended to Accused No.2 to 5 and other borrowers by his branch. He accepted bills, accepted fake salary particulars of the borrowers.
280. Taking up the first allegation against accused No.1 that, he exceeded the discretionary limit of all the discounted facility, granted loan exceeding discretionary limits without due authorization from the Regional Office. It is relevant to highlight that, accused No.1 has nowhere denied that, he exceeded his discretionary limit. However, he has very strongly defended his action on the ground that monetary limits are violated as a matter of routine. One of the main reason for this is that, there is too much pressure on the branches to show good business/ profits. Moreover, accused No.1 stated in his written statement so submitted that, monthly reports were sent to the Regional Office and this fact of violation of limit was all along in the knowledge of Regional Office. It is directed to the official witness of the bank in the cross-examination about furnishing of control returns periodically by accused No.1 225 Spl.CC No.171/2009 and in turn, no comments were made by the Regional Office. First, he was asked to stop purchasing of cheques, bills etc. and also discounting of bills till the earlier transactions are realized.
281. It is noticed from the evidence so placed on record that, limits set by the bank are routinely exceeded finds corroboration from the statement of official witnesses of the bank so examined where details were given regarding various transactions and which the limit put by the bank had been exceeded and this practice was in vogue, even after accused No.1 left the SPB Branch, Gandhinagar, Bengaluru.
282. In the opinion of this court, what was sought to be shown by referring to the statement of accused No.1 and other witnesses of the Bank, was the fact that the non- adherence of a bank limit is a normal practice, and, hence it cannot be termed as illegal as it is sought to be resorted to achieve the projected targets of the business of the bank.
226 Spl.CC No.171/2009
283. After examining the records so placed on record by the prosecution and other documents so placed, where the similar instances have been mentioned even after accused No.1 has left the said branch. I am of the view that, it can be termed as an irregularity and not an act tentamounting criminal act so as to draw an inference against accused No.1 about the perpetration of the alleged offences against him especially, when viewed in the light of catagoric statement of accused No.1 to the effect that, control returns i.e. monthly progress report were sent to the Regional Office and they had the knowledge of the bank limit having been exceeded.
284. Other allegations against accused No.1 are that, he violated while allowing the discounting of bills/ cheque facility, relied upon fake lorry numbers etc. From the evidence of the bank officials discussed above, it is not possible to conclude that, accused No.1 had any dishonest intention or mens rea and he abused his official position while accepting such cheques/ discounting bills etc. Circular of the bank, guidelines so issued from time to time 227 Spl.CC No.171/2009 by the Head Office/ Regional Office show that, stipulation of accepting cheque purchaser, bills discounting was permissible.
285. The evidence so recorded by the prosecution nowhere mentions about the connivance of accused No.1 with other accused No.2 to 5, 6 and 7 respectively. Had there been any degree of conspiracy between the accused persons as alleged by the prosecution in this case, the same would have been reflected in the evidence of the witnesses especially the evidence of P.W.1 to P.W.11 so recorded in this case. The allegations that, fake salary certificates are accepted by accused No.1 and there was conspiracy amongst accused persons interse etc. are not proved for the simple reason that, no evidence is placed on recored by the prosecution that, it is of these accused persons, who have allegedly forged the said documents. The authors of the salary certificates are not cited as witnesses. The witnesses so examined to speak about that, fake salary certificates have deposed that, at the relevant time, they were not the authorities who were authorized to 228 Spl.CC No.171/2009 issue salary certificates. The crucial evidence that, these accused persons have connived and conspired with each other and had forged the said documents is missing in this case. We cannot forget that the burden is on the prosecution to prove the guilt beyond all reasonable doubt. It there is a slighter doubt, the benefit of the same would certainly go to the accused.
286. The evidence of I.O. i.e. P.W.125 shows that, all the loans sanctioned by accused No.1 have been recovered by the bank and the bank has not sustained any monetary loss. This evidence of P.W.125 falsifies the very basic case of the prosecution. Confirmation of the fact that, the entire loan so granted is recovered itself proves that accused No.1 had no intention to cheat the bank.
287. More so, in this case, there is no proof that, in any instances cited, the banks interest has suffered or that any loss has occurred to the bank. Further, there is no proof that, he had failed to discharge his duties with integrity, honesty and devotion. All but one of the charge relate to his action of exceeding limit. In the absence of any loss to 229 Spl.CC No.171/2009 the bank or that, accused has gained any pecuniary advantage or that he had not given sufficient devotion to the working of the bank, it cannot be brought under allegation of misconduct. As pointed out earlier, in the course of years in which accused No.1 was the Chief Manager of the said branch, he has granted number of loans, did so many transactions, collected crores of deposits, termed as "aggressive banker". There was appreciation by his superiors. It shows his involvement in the improvement of the business of the bank. There is no allegation of excess facility provided, but they cannot be termed as indiscriminate exercise of discretion.
288. Accused No.1 to 5 independently have submitted their respective explanations for each of the charge made against them after recording their respective statements. Accused No.1 has produced documents along with his statements.
289. As seen earlier, accused No.1 has stated that, there have been procedural lapses and over enthusiasm exhibited by him in order to build deposit of funds of the 230 Spl.CC No.171/2009 SPB branch. The development of the branch and growth has already been submitted. The charge against him is that, he has failed to protect the interest of the bank and failed to discharge his duties with utmost integrity, honesty, devotion and diligence. Nowhere accused No.1 has admitted that, he has committed misconduct on those lines. The plea of technical lapse cannot be construed as admission of guilt in reference to the conduct of the officer. This assumes importance because even according to the prosecution, it is concerned with his exceeding the limit of discretion, though no monetary loss on that account, but only by conduct of officer. Mere conjunctures or surmises cannot sustain the finding of guilt. The charges leveled against Accused No.1 for the alleged offences have not been proved by concrete material so as to hold him guilty. What is alleged is duly deviation in procedural matters, the same cannot under any stretch of imagination could be construed to mean commission of alleged offences.
290. The learned counsel for accused No.1 would submit that, power and limit of Manager to purchase bills, cheques 231 Spl.CC No.171/2009 is not restricted to Rs.4 lacs as spoken to by the witnesses, for prosecution. The limit prescribed is only of advisory in nature, based upon the credibility of the account holder the branch can exceed the limit prescribed and intimate the same to the higher authorities.
291. In this case, accused No.2 was the valued customer, who has brought substantive deposits as a Minister at the relevant time. Accused No.2 to 5 were extended with the facility of discounting the bills. Accused No.1 in his reply has given explanations and has assigned reasons for the purchase of bills/ cheques. Equitable mortgages created by the borrowers towards housing loans are genuine transactions. Since all the borrowers have signed their respective loan applications, furnished relevant documents, got executed sale deeds in their favour, some borrowers have repaid the loan amount to the bank etc, as is spoken to by them in their cross-examination, would destroy the prosecution case.
292. To make out case of cheating, as discussed above, the ingredients of deception at the inception are required. 232 Spl.CC No.171/2009 As far as this case is concerned, except the excessive exercise of discretion by extending the facility of discounting of bills and cheque purchases, a bonafide belief that, they are genuine transactions. I do not find any element of culpability on the part of accused No.1 in particular and accused No.2 to 5 in general, who in their written statement so filed have stated and have submitted that, the control returns periodically shows how and under what circumstances he extended the facility to accused No.2 to 5. The intra-departmental and inter-departmental correspondences clearly show that the Regional Office was aware of the transactions that have been carried out by SPB Branch, wherein accused No.1 was the Chief manager. The periodical audits have taken place. The auditors have appreciated the work of accused No.1 and called him as "aggressive banker". There was an advise to provide more staff to cope up with the speed of accused No.1.
293. The prosecution records are bulky and plumpy, both oral and documentary. I have scrupulously went through the same repeatedly. But the same did not attract 233 Spl.CC No.171/2009 the ingredients of Sections 120-B, 409, 420, 467, 468, 471 of IPC and Sec.13(2) r/w Sec.13(1)(d) of P.C. Act. In other words, the oral and documentary evidence is in high quantity, but not in high quality. Therefore, in my opinion the prosecution has utterly failed to connect accused No.1 to 7 with the alleged offences.
294. The criminal jurisprudence of our country contemplates that, in a criminal cases, even if ninety nine accused are escaped from criminal liability, not even a single innocent should be punished.
295. This is not a case to be decided on the principle of preponderance of probability. But it has to be proved beyond all reasonable doubt. Reading of the entire prosecution material would go to show that the prosecution has laid its foundation on the principle of preponderance of probability which has no relevance which dealing with a case arising out of the provisions of IPC and P.C. Act. In the case on hand, the prosecution has been unsuccessful in bringing home the guilt of the accused No.1 to 7 to the hilt. The above discussion of the oral and documentary 234 Spl.CC No.171/2009 evidence, clearly establishes that, the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt. Therefore, Accused No.1 to 7 are entitled for acquittal by giving benefit of doubt. Therefore, I record my findings on the above points in the negative.
296. Point No.2:- As a result of my foregoing discussion and reasons stated thereon, accused persons are entitled for acquittal. Accordingly, I proceed to pass the following:-
ORDER Acting under Sec.248(1) of Cr.P.C., accused No.1 to 7 stand acquitted of the offences with which they stand i.e. for the offence punishable Under Sec.120B r/w 409, 420, 467, 468 and 471 of IPC and Sec.13(2) r/w 13(1) and (d) of P.C.Act Bail bond of accused shall stand cancelled and they are set at liberty, unless required in any other case.
(Dictated to the Judgment Writer, transcribed and typed by him, same is revised and corrected by me and then pronounced in the Open Court on this the 31 st day of December, 2019) (RAMACHANDRA D. HUDDAR) LXXXI ACC & SJ, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) 235 Spl.CC No.171/2009 ANNEXURE:
Witnesses examined by the prosecution.
PW - 1 - Ramdas Naidu PW - 2 - B.Ramakrishna PW - 3 - B.K.Venkatesha Murthy PW - 4 - K.R.Vasudeva PW - 5 - M.Sankaran PW - 6 - M.L.Chandrashekhar PW - 7 - B.C.Muralidhar PW - 8 - Venugopal PW - 9 - V.Sundar Rajan PW - 10 - Anand Krishna Bommanahalli PW - 11 - G.T.Prabhu Swamy PW - 12 - Smt.R.Devika PW - 13 - Smt.Leela Prasad PW - 14 - Nagendra.N PW - 15 - Dathathri.V PW - 16 - Smt.Syubbalakshmi Rao PW - 17 - Krishna Murthy PW - 18 - P.Shankar Rao PW - 19 - Shashank Kumar Tripathi PW - 20 - D.V.Bhaskar PW - 21 - M.T.Hariharan PW - 22 - Manoranjan Das PW - 23 - D.Gangadharaiah PW - 24 - N.Ashwath Narayanappa 236 Spl.CC No.171/2009 PW - 25 - K.Krishna Raju PW - 26 - S.Sama Pillai PW - 27 - R.Suresha PW - 28 - Kodanda Rama PW - 29 - Smt.S.Komalavalli PW - 30 - Dr.R.L.Usha Rani PW - 31 - A.Kannigammal PW - 32 - M.Narayana PW - 33 - Anirudh Mehta PW - 34 - B.Sujatha PW - 35 - Smt.Malini Nagaraj PW - 36 - Syed Khasim PW - 37 - H.D.Nanjunda Swamy PW - 38 - K.Vijaya PW - 39 - P.Jayaramulu PW - 40 - Smt.B.Kamala Murthy PW - 41 - S.M.Basavachar PW - 42 - Smt.D.B.Padmavathy PW - 43 - Prakash Pathar PW - 44 - G.S.Vijaya Vittal PW - 45 - L.Ramesh Kumar PW - 46 - M.Chamundi, PW - 47 - Rajashekhara PW - 48 - B.M.Geetha PW - 49 - Smt.S.Mary Stephens, PW - 50 - Mudasir Pasha, PW - 51 - Ramesh, 237 Spl.CC No.171/2009 PW - 52 - Smt.K.Dayanidhi PW - 53 - R.Magesh, PW - 54 - R.Sathish PW - 55 - John Rose, PW - 56 - R.K.Manohar, PW - 57 - Anbazajagan PW - 58 - Firoz Pasha PW - 59 - N.V.Thirumala Reddy, PW - 60 - Mohammed Amanulla PW - 61 - S.N.Velayudham @ Shekhar PW - 62 - Ramachandra Shettar PW - 63 - T.Thimmappa PW - 64 - Afzal Ahammed Khan PW - 65 - Sajid Sahib, PW - 66 - Prasad S.Narayan PW - 67 - M.P.Omkareshwari PW - 68 - A.Mahalinga Nayak PW - 69 - Vinay Prakash Karak PW - 70 - Jayaraj, PW - 71 - Jagabandhu Gowda, PW - 72 - Padmanabha Shet PW - 73 - Harish Gatty PW - 74 - A.N.Ranganath Kumar PW - 75 - T.Sathish Babu PW - 76 - A.Sehar Panraj PW - 77 - Sadananda Acharya PW - 78 - Mohammed Khasim 238 Spl.CC No.171/2009 PW - 79 - N.Hanumanthaiah PW - 80 - P.A.Krishna Reddy PW - 81 - Ramesh PW - 82 - A.L.Ravishankar PW - 83 - H.K.Nagaraja Gowda PW - 84 - B.K.Chandra Shekhar PW - 85 - Gopalaiah PW - 86 - M.Suresh PW - 87 - K.N.Shivalinge Gowda PW - 88 - Nagarathnamma PW - 89 - B.N.Eshwaraiah PW - 90 - H.B.Sannappaiah PW - 91 - A.Shankar PW - 92 - Smt.D.Bhavani Balakrishna PW - 93 - M.V.Kumar PW - 94 - Shivalingappa Marali PW - 95 - V.Madhu Sudhan, PW - 96 - Hameed Ali PW - 97 - Chikka Peddanna.K.G. PW - 98 - Ganga Hanumaiah PW - 99 - Prabhakar.C.J PW- 100 - R.Chandrashekharaiah PW - 101 - P.Praveen Kumar PW - 102 - K.R.Venkatesha Reddy, PW - 103 - K.Nagaraj PW - 104 - Chennappa Rathnappa Gol, PW - 105 - Doddappa Jyothi, 239 Spl.CC No.171/2009 PW - 106 - Santhosh V.Nayak, PW -107 - P.B.Mathews PW - 108 - J.Anil PW - 109 - K.aviraj Hegde, PW - 110 - K.Raj Shekhar, PW - 111 - A.Swamy Das PW - 112 - S.Manjunathaiah PW - 113 - Sathish Chandra PW - 114 - Venkata Raju PW - 115 - S.D.Kumar PW - 116 - S.Nagesh PW - 117 - A.B.Hosa Poojari PW - 118 - K.R.Oman Kuttan PW - 119 - B.K.Jha PW - 120 - B.R.Somashekhar PW - 121 - Rathnamma, PW - 122 - T.M.Ramesh PW - 123 - A.Bala Sami PW - 124 - Miss.Prema Logan PW - 125 - Chanda Rani
Witnesses examined by the defence/accused.
-- NIL 240 Spl.CC No.171/2009 Documents exhibited by the prosecution.
Ex.P.1 Complaint filed by complainant Ex.P.1(a) Signature of the complainant Ex.P.2 General circular Ex.P.3 A confidential letter addressed by the SBM, Vigilence
Branch to the Superintendent of Police CBI Ex.P.3(a) & Are the investigation reports regarding irregularities
(b) in Sanction and conduct of advances at SPB Branch, Gandhi Nagara, Bengaluru.
Ex.P.4 A letter dated 17.9.2005 addressed by AGMIV Ex.P.5 Letter dated 27.9.2005 by AGM Ex.P.6 Letter dated 17.11.2005 addressed to the SPB Branch Ex.P.7 Note dated 4.11.2006 Ex.P.8 to Are the files maintained by the SPB Branch 131 Ex.P.132 to Cheque purchase documents containing challans, 138 transfer debit vouchers.
Ex.P.139 to Receipt memo dated 11.6.2009 containing particulars 146 of documents being collected showing credit challans dated 30.5.2005.
Ex.P.147, Receipt memo and account opening forms of various 147(a) to (l) account holders Ex.P.148 Receipt memo with control returns intimating the regional office regarding sanctioning loans Ex.P.149 Document containing deposit of title deeds in respect of Seven Hills Properties Limited Ex.P.150 A document issued by region no.IV, SBM, Bengaluru Zone regarding SBM Loan Utsav.
Ex.P.150(a) Shows that SBM Loan Utsav was arranged for a housing loan and the loan going to be sanctioned was 241 Spl.CC No.171/2009 Rs.15,00,000/ with interest rate at the rate of 7.25%, car loan to the extent of 3.5 lakhs with rate of interest at the rate of 7.75%.
Ex.P.151 Chief Manager's letter dated 30.12.2005 addressed to SPB Branch Ex.P.152 Audit report commencing from 4.8.2003 to 30.12.2005.
Ex.P.153 Management letter dated 28.1.2007 showing acknowledgment of RO Sanctions Ex.P.154 Audit report.
Ex.P.155 A document containing verification employment and salary certificates dated 13.6.2009 Ex.P.156 A letter showing confirmation of the employment and Salary particulars of the borrowers.
Ex.P.157 Confirmation of employment and salary particulars dated 3.9.2006 regarding 28 borrowers.
Ex.P.158 The letter regarding confirmation of employment and salary particulars of 50 borrowers Ex.P.159 The sport verification memo/mahazar conducted pertaining to this case.
Ex.P.160 Spot panchanama conducted by the I.O in the presence of panchas along with revenue officials in respect of Sy.No.228/2 measurung 1 acre 32 guntas of Bananduru village.
Ex.P.161 Spot panchanama in respect of Sy.No.60 and 70 of Singapura village.
Ex.P.162 Joint Account opening form of accused no.2 to 4. Ex.P.163 Certificate u/s.2(a) of Bankers Book of Evidence Act with statement of account of M/s.Trishul Enterises maintained by Gandhi Nagar Branch.
Ex.P.164 Account opening Form of Accused no.2 Ex.P.165 Statement of account of Seven Hills Properties maintained by Gandhi Nagara Branch 242 Spl.CC No.171/2009 Ex.P.166 Copy of Account Opening Form in the name of Accused no.2 Ex.P.167 Certificate under Bankers Books of Evidence Act with statement of accounts standing in the name of accused no.2.
Ex.P.168 The copy of Account Opening form in the name of Accused no.2.
Ex.P.169 Certificate and statement of account standing in the name of accused no.2 showing various deposits in his account.
Ex.P.170 Account opening form in the name of Accused no.4 Hanumappa Reddy.
Ex.P.171 Certificate under Banker's Books of Evidence Act Ex.P.172 Current account Opening form in the name of accused no.2.
Ex.P.173 Certificate with Statement of Account in the name of Seven Hills Distillaries Private Limited Ex.P.174 Account Opening Form in the name of P.K.Chandrashekhar Ex.P.175 Certificate with statement of account in respect of Chandrashekhar.B.K Ex.P.176 The account opening form in the name of accused no.3 Ex.P.177 Head Office official visit register. Ex.P.178 to Cheque purchase registers.
180 Ex.P.181 to Housing loan circulars issued by the bank. 189 Ex.P.190 & It is the empenlment of valuersapproved list. 191 Ex.P.192 Bill Register showing credit facility limit.
Ex.P.193 Cashier's receipt day book.
Ex.P.194 to These are the letter of request dated 15.9.2005, 243 Spl.CC No.171/2009 196 30.9.2005 respectively.
Ex.P.197 Copy of the circular showing scheme of delegation of financial powers addressed to all the officers of the bank.
Ex.P.198 A letter addressed by State Bank of Mysure Division IV, Bengaluru Zone to the Chief Manager, SPB, Gandhi Nagar Branch dated 5.1.2006 with regard to cheque purchases and deviations in sanction of loans. Ex.P.199 Is the document showing guidelines regarding discount and purchase of billspurchase of telegraphic transferssecuring doubtful bills.
Ex.P.200 It is a reply given by SPB, RegionIV with regard to control returns submitted in respect of DHL Limits, sanctioned to various borrowers Ex.P.201 A letter addressed by SBM Region - IV, Bengaluru Zone Ex.P.202 A letter dated 5.1.2006 Ex.P.203 A letter addressed to the DGM, Bengaluru Zone Ex.P.204 to Are the Demand Drafts submitted by accused no.2 for 211 encashment.
Ex.P.212 to Cheques.
263 Ex.P.264 to They are the letters addressed to AGM and others 271 regarding availment of housing loans by various borrowers and also addressing letters to various authorities like BWSSB, South Western Railways etc. Ex.P.272 Verification report on the House Building Loan sanctioned from 1.1.2005 by Gandhi Nagara Branch. Ex.P.273 A letter of undertaking by accused no.2 to 4 on behalf of M/s.Trishul Enterprises Ex.P.274 Is the letter of undertaking on behalf of Trishul Enterprises signed by Accused no.4 Ex.P.275 to These are the seizure memos of various documents by 292 the I.O during investigation.
244 Spl.CC No.171/2009Ex.P.293 to Are the documents collected by the I.O from HAL, 301 BWSSB.
Ex.P.302 to Letter, pay slip, salary slip etc, issued by KSRTC 310 showing the pay particulars of these employees. Ex.P.311 Death certificate of Ahesha who died on 7.11.2007. Ex.P.312 to Are the Form No.16, Salary Certificate, Pay Slip of 333 various employees who borrowed loan from Gandhi Nagara Branch Ex.P.334 Is the cheque dated 16.12.2004 in the name of Chamundi.M for Rs.11,500/ signed by Partners of Trishul Enterprises. It is a case of the prosecution that Chamundi.M being the nominal borrower was paid with Rs.11,500/ as a commission towards raising of loan in his name to help the Trishul Enterprises. But this PW46 Chamundi have been turned hostile and specifically states that he has not stated before the I.O marked as Ex.P.335, 335(a) to (c).
Ex.P.336 Is the absolute Sale Deed executed in favour of Smt.Mary Stephens by Andanappa and V.N.Ajith Prasad Jain i.e. accused no.3.
It is accompanied with Encumbrance Certificates as per Ex.P.336(a) and (b) Ex.P.337 It is a letter addressed by the BEML Limited to the I.O Ex.P.338 It is a statement of PW58 Sri.Firoz Pasha. He has been turned hostile. Likewise PW59 N.V.Thirumala Reddy, PW60 Mohammed Amanulla, PW61 S.N.Velayudhan have been turned hostile. They say that they have not stated before the I.O as per Ex.P.339, 339(a), (b), (c), 340, 340(a), (b) and (c), 341 respectively.
Ex.P.342 Letter addressed by ING Vysya to the I.O regarding M/s.Trishul Enterprises, M/s.Seven Hills Properties and M/s.Seven Hills Distillaries Limited. Ex.P.342(a) Is a register of bills purchased by ING Vysya Bank Ex.P.342(c), Are the documents prepared at the time of 245 Spl.CC No.171/2009
(b) and (d) discounting the bills and also receipt of cheque etc. Ex.P.342(g) Is a certificate u/s.2(A) of Bankers Books Evidence Act for having issued the Accounts Extract.
Ex.P.343 Another letter addressed by ING Vysya, Challakere Branch to the I.O Ex.P.344 Is Current Account Opening Form in the name of accused no.2.
Ex.P.344(a) Is the statement of Account being maintained by ING Vysya in the name of accused no.2 Ex.P.345 Is the account extract maintained by ING Vysya in the name of accused no.5 Ex.P.346 Is the copy of the register of cheques returned by ING Vysya Ex.P.347 to They are the cheques in the name of Seven Hills 358 Properties and others for various consideration. Ex.P.359 It is the Account Opening Form in the name of Accused no.2, State Bank of Mysuru, Challakere Branch.
Ex.P.360 & Are the transfer vouchers 361
Ex.P.362 to These are the certificate with document sent for 374 realization of Hundis Ex.P.375 Is a DD in the name of Accused no.5 for Rs.73,60,000/.
Ex.P.376 It is the registers showing the telegraphic transfers payable. Relevant entry is Ex.P.376(a). Ex.P.377 It is the postage book and relevant entries are Ex.P.377(a) and (b).
Ex.P.378 It is the letter addressed by RTO, Mangalore dated 31.3.2009 furnishing the extracts of vehicles as per Ex.P.378(a) to (h).
Ex.P.379 Is a register maintained by Mangalore Road Lines for having arranged vehicles to various destinations 246 Spl.CC No.171/2009 Ex.P.380 to Is the blank letter head of Mangalore Road Lines, 382 Ex.P.381 is the letter issued by RTO to the I.O furnishing B extract of vehicles bearing number KA 20322, KA202768, KA208632 and KA203768 respectively. Is the B extract of three wheeler. Ex.P.383 It is the valuation report prepared by K.Thammaiah and Associates being the Chartered Engineers and registered valuers dated 9.7.2009 furnishing the valuation with extent of the site being developed by Seven Hills Properties Private Limited in the name of 11 persons who are the intending purchasers of the said sites.
Ex.P.384 & Ex.P.384 is the letter addressed by Asst. Registrar of 385 Companies with regard to the registration of M/s.Seven Hills Properties Private Limited and M/s.Seven Hills Distillaries and Minerals Private Limited dated 19.2.2009.
Ex.P.385 is the certificate of incorporation of the aforesaid companies with necessary documents. Ex.P.386 It is a letter issued by Asst. Registrar of Companies stating that M/s.Meerarms Overseas Private Limited is a registered company.
Ex.P.387 Is the certificate of incorporation of Meerarms Agro Foods Private Limited with necessary documents. Ex.P.388 Is a letter issued by Bengaluru, Mysure Infrastructure coridor area planning authority addressed to I.O furnishing approved layout for an extent of 24 acres, 32 guntas of Survey number 209/2, 228/2 and 229 of Banandur village, Bidadi Hobli, Ramanagara Taluk and Sy.No.18/1, 18/2, 18/3, 13/3 and 19 of Kallugopanahalli village in the said Ramanagara District with revised layout issued by BMRDA in respect of the aforesaid land.
Ex.P.389 Is a document issued by Bengaluru Mahanagara Development Authority dated 4.8.2005 assigning site numbers in the sites formed at Kallugopanahalli 247 Spl.CC No.171/2009 village in Sy.No.18/1, 2, 3, 13/3, 5 and 19 in a total extend of land of 15 acres 27 guntas. Defence has not denied these documents.
Ex.P.390 to Are the copies of the Sale Deeds being execued to the 394 various purchasers of the sites. All these Sale Deeds are the registered Sale Deeds.
Ex.P.395 & Are the statements of PW78 Mohammed Khasim and 396 79 Hanumanthaiah who have been turned hostile. Ex.P.397 to Are the legal opinion files furnished by the advocate 400 on penal.
Ex.P.401 to Cheques.
406 Ex.P.407 to These are the photographs being taken by the I.O at 414 the time of spot inspection.
Ex.P.415 to Are the RTC extracts of Sy.No.18, 19 of 417 Kallugopanahalli, Sy.No.228 of Banandur village respectively.
Ex.P.418 to Are the photographs have been taken at the time of 437 investigation by the I.O.
Ex.P.438 & Are the RTC extract of Sy.No.60 and 70 of Singapura 439 village. Name of accused no.5 is appearing. Ex.P.440 Is a letter signed by I.O for having received Ex.P.438 and 439.
Ex.P.441 Is a receipt memo signed by I.O for having received the RTC extracts of Sy.No.60 and 70 of Singapura village.
Ex.P.442 to Are the photographs taken by the I.O at the time of 460 investigation showing the vacant land. Ex.P.461 Is a letter issued by Bengaluru Electric Supply Company to the I.O Ex.P.462 Is a letter addressed by the Karnataka State Pollution Control Board Ex.P.463 Is the layout plan in respect of Sy.No.60, 60/2, 61, 62, 70, 71, 72/2 of Singapura Garden City, Abbigere 248 Spl.CC No.171/2009 village signed by Commissioner, City Municipality, Byatarayanapura.
Ex.P.464 Account Opening Form with Dena Bank by one Mohammed Nasir Siddique with affidavit and other documents.
Ex.P.465 It is a document issued by Dena Bank showing inability to make payment of enclosed cheque which was sent for collection with collection schedule as per Ex.P.466 standing in the name of Accused no.4. Ex.P.467 A letter issued by Dena Bank with ledger extract in respect of Mohammed Nasir Siddique Ex.P.468 Is a letter issued by Bengaluru Metropolitan Region Development Authority dated 12.7.1999 Ex.P.468(a) Are the Plan and applications. to(g) Ex.P.469 Is the seizure memo with description of documents prepared by I.O while seizing Ex.P.468(a) to (g). Ex.P.470 It is a letter addressed to CBI sent by HSR Layout Branch of State Bank of Mysuru Ex.P.471 Cheque for Rs.38,00,000/ issued in the name of accused no.2.
Ex.P.472 Cheque, in the name of Accused no.2 for Rs.3,00,000/.
Ex.P.473 to A letter addressed by IDBI Bank to the I.O furnishing 476 cheque, account opening form in the name of Narayana Rao and a certificate of a banker and account extract.
Ex.P.477, A letter addressed by Kempegowda Pattana 477(a) to(f), Souhardha Sahakari Bank Niyamitha, Tumkur and 478, 478(a) Ex.P.479 to Account Opening Form issued by Hoysala Credit Co 482 operative Society Limited, Chellakere in the name of D.Sudhakar, Statement of account and three cheques in the name of Trishul Enterprises and 249 Spl.CC No.171/2009 K.V.Hanumappa ReddyAccused no.4 respectively. Ex.P.483 Portion of a statement of Kachera Nagaraja examined as PW103. He states that he has not stated before the I.O as per Ex.P.483, 483(a), 483(b) and 483(c). Ex.P.484 A letter addressed by the Karnataka State Co operative Apex Bank Limited to the I.O Ex.P.485 Is the receipt memo having received the documents by the I.O Ex.P.486 to Are the Account Opening Form belongs to Accused 489 no.2 with Kolara Grameena Bank and one B.N.Prakash Reddy.
Ex.P.490 A letter addressed by ING Vysya Bank dated 5.1.2009 addressed to I.O furnishing in all 15 documents. Ex.P.491 Account opening form in the name of Accused no.1 with ING Vysya Bank.
Ex.P.492 Cheque for Rs.9,60,000/ in the name of Accused no.2 dated 7.5.2005.
Ex.P.493 A receipt memo having received three documents i.e. Account Opening Form as per Ex.P.494 in the name of J.P.Narayana Swamy, Ex.P.495 cheque in the name of accused no.2 Sudhakar for Rs.17,73,000/. Ex.P.496 Statement of account of Narayana Swamy maintained with SBM, Sira Branch.
Ex.P.497 Is receipt memo issued by CBI having received five documents from Sri.Anil a Photographer. Ex.P.498 to Are the letter addressed by Vijaya Bank, Shivamogga, 509 DD for Rs.5,00,000/ in the name of Trishul Enterprises, Pay in slips, cheques in the name of accused no.2, 4 and 7 respectively. And deposit account opening form in the name of H.B.Manjunath, statement of account respectively.
Ex.P.510 to Account opening form in the name of Hanumappa 511 Reddy i.e. accused no.4 with ING Vysya Bank with form no.61 in his name.
250 Spl.CC No.171/2009Ex.P.512 to Copy of account opening form in th name of accused 514 no.4 with ING Vysya Bank, Statement of account and a cheque in the name of Trishul Enterprises for RS.13,50,000/ respectively.
Ex.P.515 to Certificate issued under Bankers Books of Evidence 517 Act, Statement of Account and bunch of twelve cheques respectively in the name of D.Sudhakar accused no.2 and Trishul Enterprises.
Ex.P.518 Copy of the bill register being maintained by ING Vysya Bank Ex.P.519 Receipt memo issued by I.O for having received three documents from Dena Bank Pathrenahalli Branch, Chikkaballapura.
Ex.P.520 A letter received by the I.O from RTO, Chikkamangaluru with BRegister Extract of vehicle Ex.P.521 Auto rickshaw Cab standing in the name of M/S.Swamy with other particulars.
Ex.P.522 Warrant to search issued by 21 st Addl. City Civil and Sessions Judge and Special Judge for CBI Cases Ex.P.523 to Are the letters addressed by BWSSB Karnataka State 528 Pollution Board, BMTC furnishing information to I.O Ex.P.529 to Letter addressed by Accounts Officer Sena Base work 538 shop, Bengaluru, BMTC with Salary particulars of Puttaswamy.H.T, Rajendra.K, letter addressed by DGM, HR, Bikenar Wala Foods Private Limited with copy of Salary particulars of Mohan Kumar Belvadi. A letter addressed by the BESCOM to the I.O about furnishing Salary particulars of Abdul Hakeem with receipt memo isseud by I.O respectively. Ex.P.539, Documents pertaining to bill of sales addressed to 539(a) to (l) M/s.Meerarms Overseas Private Limited towards supply of Canadian Yellow peas worth Rs.34,50,000/. Ex.P.540 The specimen signature of Prasad, S/o.Narayana a partner of Mangaluru Road Lines at Sl.No.1 to 56. Ex.P.541 Opinion of Scientific Examiner, NABL accredited 251 Spl.CC No.171/2009 laboratory i.e. office of question documents direct ove it of Forensic Science, Hyderabad.
Ex.P.542 Is the Covering letter enclosing opinion of Scientific Examiner Ex.P.543 to FIR, Search list record by I.O, mahazar dated 548 10.3.2008 Ex.P.549 to Statement of Accounts standing in the name of 551 accused no.4.
Ex.P.552 Particulars of employee details of SPB Branch, Gandhi Nagara and their respective periods worked in the said branch Ex.P.553 Verification report submitted by C.A.Balasubramanya showing confirmation by the employers.
Ex.P.554 A letter addressed by the I.O dated 12.6.2009 to the I.O Ex.P.555 A circular issued by SBM, Head Office showing festival offer for Dasara as Deepavali Ex.P.556 It is a letter dated 30.4.2009 addressed to I.O by Vigilance department of SBM, enclosing the letters to position of House Building Accounts, Developer wise, received from the AGM RegionIV.
Ex.P.557 It is a list of particulars of documents received by the I.O styled as receipt memo.
Ex.P.558 Is a layout copy of revised residential layout in Sy.No.18/1, 2,3, 13/3, 5 and 19 of Kallugopanahalli village Ex.P.559 It is the revised residential layout plan in Sy.No.209/1, 209/2, 228/2 and 229 of Banandur village and Sy.Nos.18/1, 18/2, 18/3, 13/3, 13/5 and 19 of Kallugopanahalli village.
Ex.P.560 Receipt memo dated 7.5.2009 prepared by the I.O for having received 9 documents from Gandhi Nagara Branch Ex.P.561 Is a letter addressed to I.O by the BBMP regarding 252 Spl.CC No.171/2009 plan approval.
Ex.P.562 Is a letter addressed by the Govt. of Karnataka officer of the Senior Sub Registrar, Yalahanka furnishing Encumbrance Certificate in respect of Sy.No.60 of Singapura village.
Ex.P.563 Is an Endorsement issued by BBMP certifying about the pay particulars of R.Vijay Kumari.
Ex.P.564 Is a letter addressed by HAL dated 23.8.2008 furnishing Salary particulars of one Mr.Jayaraj and Jagabandhu.
Ex.P.565 Is a letter issued by Divisional Controler, KSRTC to the I.O stating that the Salary slips have not been issued by his office and Form No.16 are not available in his office.
Ex.P.566 Is a letter of BMTC addressed to I.O enclosing the certified photocopy of original salary slip issued to its employees for investigation. Ex.P.566(a) is the BMTC pay slip.
Ex.P.567 Is a letter addressed by South Western Railway dated 30.1.2009 to the I.O regarding verification of records in respect of employees by name Smt.Moshina Banu, Akram Ali Beig, Firoz Pasha who are not the employees with designation mentioned by them while availing loan.
Particulars regarding one Sachidananda and K.Hanumappa is also given. Ex.P.567(a) is a salary certificate of Hanumappa and others.
Ex.P.568 Is a letter addressed by South Western Railways dated 9.7.2009 addressed to I.O regarding investigation so did in respect of its employees. This document is accompanied with Ex.P.568(a) documents such as copies of pay slips and form no.16.
Ex.P.569 Is a letter addressed by BMTC Depot No.8 of Yashwanthpura Bengaluru dated 7.7.2009 regarding investigation of Salary slip of Driver by name John Rose.
253 Spl.CC No.171/2009Ex.P.570 Is a letter addressed by HAL to the I.O dated 7.7.2009 regarding investigation of Pay Role in respect of Employee by name S.Ramesh along with pay particulars as per Ex.P.570(a).
Ex.P.571 A letter from Indian Computer Corportion (ICC) regarding investigation stating that the Director Indian Computer Corporation Private Limited does not belong to their firm.
Ex.P.572 Is a letter addressed by Foreman Training Institute mentioning the names of Employees by name N.Ravi, B.H.Mallikarjuna, Mrs.S.Mangala Gowri, B.R.Rajendra Kumar Singh, Aralumallige Basavachar Suguna Murthy, Permi Jayaramulu, Smt.K.Vijaya and Dasarahalli Kamalamurthy.
Ex.P.573 Is a receipt memo issued by I.O for having received in all 37 documents.
Ex.P.574 Is the statement of account in the name of accused no.3 with Gandhi nagar Branch. Ex.P.574(a) is the certificate.
Ex.P.575 Is the statement of account in respect of Account Number 98644406262. The amount debited is Rs.34,40,000/. Ex.P.575(a) is the certificate. Ex.P.576 Is a letter addressed by Regional Office to the Gandhi Nagara Branch dated 28.2.2005 with regard to Control Returns.
Ex.P.577 Is the statement of account of Karnataka State Co operative Apex Bank Limited, Chitradurga Branch for the period commencing from 1.6.2005 to 30.6.2005. Ex.P.578 Is the deposit account opening form in respect of Albert Rose India Limited with ABN AMRO Bank in the name of Manjunath P Biddahalli, K.V.Madhusudana and D.Sudhakar. It is accompanied with a cheque for Rs.50,00,000/ as per Ex.P.578(a). Ex.P.579 Is a letter addressed by ING Vysya Bank to the I.O dated 9.1.2009 responding to notice u/s.91 of Cr.P.C 254 Spl.CC No.171/2009 accompanying with certificate and statement of accounts of M/s.Meerarms Overseas Private Limited for the period from 7.8.2006 to 10.8.2006. Ex.P.580 Is a letter addressed by Catholic Cooperative Urban Bank Limited, Sikandarabad to the I.O furnishing copies of statement of B.Balasundara Reddy and Smt.P.Arogya Mary having transactions with Trishul Enterprises.
Ex.P.581 Is the certificate issued by SBM, Kollegala Branch with cheque in the name of Hanumappa Reddyaccused no.4 as per Ex.P.581(a) and cheque collection schedule with account opening form in the name of M.S.Jagadish Kumar with statement of account. Ex.P.582 Is the Pay in slip for Rs.50,00,000/. It shows lean over housing loan of M/s.South Western Railways. Ex.P.583 Pay in slip with transfer debit vouchers, certificate and statement of account standing in the name of Seven hills properties limited.
Ex.P.584 Pay in slip, transfer debit voucher, certificate and statement of account of Seven Hills properties private limited.
Ex.P.585 Is the receipt memo issued by CBI for having received 28 documents.
Ex.P.586 Is the valuation report of a residential layout (under construction) in sy.no.18/1 to 3, 13/3, 5 and 19 of Kallugopanahalli village.
Ex.P.587 to Are the five cheques, six cheques and four cheques 589 respectively submitted to Gandhi Nagara Branch for encashment.
255 Spl.CC No.171/2009Documents exhibited by the defence/accused. - Ex.D.1 Is the office order dated 25.6.2007 regarding constitution of the advisory board on bank, commercial and financial frauds.
Ex.D.2 Is a circular issued by vigilence commission with regard to determination of fraud.
Ex.D.3 Is the performance report of accused no.1.
Ex.D.4 Is the Annual Appraisal report Ex.D.5 Is the letter addressed by AGM to accused no.1
appreciating the exceeding of the budgetary goals in all the three parameters they are deposits, advance and profit under the leadership of accused no.1.
Ex.D.6 Is a reply Ex.D.7 Is the vigilance manual copy Ex.D.8 Is the relevant portion of Evidence of PW17 which is
marked in evidence when PW17 was under cross examination.
Ex.D.9 Form No.16 so found in Ex.P.110.
Ex.D.10 & 11 Are the statements of PW40 and 41. Ex.D.12 Relevant portion of evidence of PW70 Ex.D.13 & 14 Are the portion of the statement marked at the time of recoding evidence of PW70.
List of Material Objects marked by the prosecution:--
Nil (RAMACHANDRA D. HUDDAR) LXXXI ACC & SJ, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka)