Madras High Court
K. Mariammal vs State Rep. By on 31 January, 2019
Author: P.Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH
COURT
RESERVED ON : 27..11..2018
PRONOUNCED ON : 31..01..2019
CORAM
THE HON'BLE MR.JUSTICE P.VELMURUGAN
Criminal Appeal No.72 of 2009
and
M.P.(MD) No.1 of 2014
A. Jeyachandran (Expired)
1. K. Mariammal
2. J. Karthika
... Appellants
(Substituted as per Order of this Court made in Crl. MP(MD) No.
8072 of 2018 in Crl.A.(MD) No.72 of 2009 dated 08.10.2018).
-Versus-
State Rep. by
The Inspector of Police,
SPE/CBI/ACB/Chennai,
RC MA/2003 – A – 0002.
... Respondent / Complainant
PRAYER: Appeal filed under Section 374 of the Code of Criminal
Procedure, to set aside the conviction and sentence imposed by the
Principal Special Judges Court for CBI Cases, Madurai in C.C.No.
5 of 2005 dated 03.02.2009 and allow this Cirminal Appeal.
http://www.judis.nic.in
2
For Appellant : Mr.M. Jothi Basu
For Respondent : Mr.N. Nagendran,
Special Public Prosecutor for
CBI Cases.
***
JUDGMENT
The deceased appellant/A. Jeyachandran and his wife and her brothers are accused in C.C. No. 5 of 2005 on the file of the Special Court for CBI Cases, Madurai. The respondent herein had filed a charge sheet for the offences under Section 120B r/w 409, 420, 467, 468, 471, 389, 477A of the I.P.C., and Section 13(2) r/w 13(1)(c) & (d) of the Prevention of Corruption Act, 1988 and substantial offences thereof and when they were questioned as to the charges, they pleaded not guilty and therefore, they were put on trial. The learned Special Judge for CBI Cases, Madurai, after full-fledged trial, found that the deceased appellant/A.Jeyachandran found guilty for the offences under Sections 409 of the IPC r/w 13(1)(c) r/w 13(2) of the Prevention of Corruption, 1988(12 Counts) and under Sections 467, 471 of the IPC (13 counts) and under Section 477(A) of the IPC (8 counts) and accordingly, http://www.judis.nic.in 3
(i). convicted and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.5,00,000/-i/d to undergo rigorous imprisonment for 2 years for the offence punishable under Section 409 of the IPC r/w Section 13(1)(c) r/w 13(2) of the of the Prevention of Corruption Act, 1988 (inclusive for all 12 counts),
(ii). to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.5,00,000/-i/d to undergo rigorous imprisonment for 2 years for the offence punishable under Section 467 & 471 of the IPC (inclusive of all 13 counts), and
(iii). to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.5,00,000/-i/d to undergo rigorous imprisonment for 2 years for the offence punishable under Section 477(A) of the IPC (inclusive of all 8 counts) (Total Fine Rs.15,00,000/-).
(iv). The state Bank of India, Sivakasi Town Branch is entitled to a compensation amount of Rs.5,00,000/-from out this fine amount. The compensation amount of Rs.5,00,000/-from out this fine amount. The compensation is paybale after the period for filing appeal is over or after the disposal of appeal. If filed, which ever is later.
(v). The sentence of imprisonment and conviction shall run concurrently. Challenging the above said judgment of conviction http://www.judis.nic.in 4 and sentence, the appellant is before this court with this criminal appeal.
(vi). The 2nd, 3rd and 4th accused are not guilty of any of the charges framed against them, and accordingly acquitted them under Section 235(1) of the Criminal Procedure Code of all charges framed against them. The bail bonds are canceled and sureties discharged.
2. The case of the prosecution is as follows :
The deceased appellant/A.Jeyachandran, while working as Assistant in State Bank of India, Sivakasi Town Branch during the period 1997-2002, entered into a criminal conspiracy with the other accused persons who are his wife and her brothers, to cheat/misappropriate the funds of the State Bank of India and during the relevant point of time, his wife/K. Mariammal/2nd accused was working as Senior Assistant, State Bank of india, Sivakasi Main Branch. The deceased appellant/A.Jeyachandran abused his official position as pubic servant and by corrupt or illegal means misappropriated the amounts given to him by the customers for depositing into their respective account and further fraudulently received cheque books of customers by signing in the Register and using the same for withdrawal of amounts from the http://www.judis.nic.in 5 accounts of customers without their knowledge and consent and the amounts thus misappropriated were transferred into the account of M/s.Venus Fire Works Industries, Panayadipatti which was managed by the Parameswaran/3rd accused and the amounts thus fraudulently credited were later withdrawn by them. Further, to enable the above fraud and to conceal the same, the deceased appellant/A.Jeyachandran had manipulated the books of accounts of the Bank. In the annexure to the complaint, the names and account numbers of 94 account holders had been given and the amounts misappropriated by the deceased appellant/A.Jeyachandran had also been mentioned. Eventhough the amounts with respect to 8 account holders were mentioned as 'not' known the totla amount alleged to have been misappropriated with respect to the other account holders was given as Rs. 47,28,618.25/- and thereby had caused wrongful loss to the Bank and corresponding wrongful gain for themselves.
3. The prosecution has examined 82 witnesses and filed 241 documents to substantiate the Charges.
http://www.judis.nic.in 6
4. During the pendency of the appeal, sole appellant was died. His wife had filed a petition under Section 394 of the Cr.P.C.. Sub-section 2 of Section 394 of the Criminal Procedure Code provides right to the nearest relative of the deceased appellant to continue the appeal. Leave was granted. Subsequently, amendment was carried out and the wife of the deceased appellant/A.Jeyachandran is first appellant and his daughter is the second appellant.
5. M.P(MD) No. 1 of 2014 :
The wife of the deceased appellant/A.Jeyachandran has filed one Miscellaneous Petition in MP(MD) No. 1 of 2014 before this Court as petitioner/3rd party to release the property situated in Door No.487, 488 Bye-pass Road, Periyar Nagar, Sattur Town, Virudhunagar District furnished by the petitioner/3rd party as a surety to the deceased appellant/A.Jeyachandran in C.C.No.5 of 2005 on the file of the Special Court for CBI Cases, Madurai from all encumbrances.
6. The learned Special Judge for CBI Cases, Madurai, after completing the prosecution evidences, the incriminating evidence was put to the deceased appellant under Section 313(1) http://www.judis.nic.in 7
(b) of Cr.P.C. The deceased appellant denied the same as false evidence. On the side of appellant, no witness was examined and no documents were marked. After considering the oral and documentary evidence, the trial Court found that the deceased appellant was guilty and convicted as stated above. Aggrieved against the order of conviction and sentence passed by the trial Court, the appellant has preferred the present appeal.
7. Heard the learned counsel appearing for the appellant and the learned Special Public Prosecutor for CBI Cases appearing for the respondent and also perused the available records.
8. The learned counsel for the appellant would submit that the sanctioning authority/P.W.1 is not a competent person to grant the sanction and to remove the deceased appellant from service. He would further submit that as per Sections 218 and 219 of the Criminal Procedure Code, the trial is invalid. He would further submit that the other accused-2 to 4 were acquitted, therefore, some benefits should be extended to this accused also. There is no materials to prove that the deceased appellant has http://www.judis.nic.in 8 committed the offence. He would also submit that once the sole appellant died appeal also abated and therefore, the fine amount should be released.
9. Per contra, the learned Special Public Prosecutor for CBI Cases would submit that the deceased appellant was working as Assistant, State Bank of India, Sivakasi Town Branch, during the period 1997 – 2002 entered into criminal conspiracy and abused his official position as public servant and by corrupt or illegal means misappropriated the amounts given to him by the customers for depositing into their respective accounts. He would further submit that 28 complainants have been examined in this case and also stated that they had accounts with the State Bank of India, Sivakasi Main Branch. He would further submit that it is clearly reveals that the accounts have been misappropriated by the deceased appellant and the bank officials have also identified the signature of the deceased appellant and the signatures were also sent for chemical examination and the official witnesses also corroborated the signatures of the deceased appellant. He would also submit that the prosecution has clearly proved the case through the oral and documentary evidence beyond reasonable doubt. He also submit that, P.W.1/Tr.Chandra Mouli is the http://www.judis.nic.in 9 competent person to accord sanction against Accused No.1 & 2 in this case and further, during the period 1997-2002, the deceased appellant was working in the same Branch and he has misappropriated the amounts and manipulated the accounts and cheques and other ledgers and also misappropriated the funds of the customers and caused loss to the State Bank of India, Sivakasi Town Branch and gained himself and therefore, under the circumstances, the trial Court has rightly appreciated the evidence and also discussed in detail. He would also submit that the trial Court rightly rejected the defence taken by the appellant/accused and there is no merit in the appeal and hence the appeal is liable to be dismissed.
10. Heard. Perused the materials available on record.
11. During the pendency of the appeal, the appellant Jayachandran was died. Since his legal representatives filed a petition before this Court seeking leave to continue the appeal. Leave was granted.
12. The specific case of the prosecution is that the deceased appellant/first accused started misappropriating various http://www.judis.nic.in 10 amounts/instruments entrusted to him by the customers, and diverted them to the account of Venus Fire Works. P.W.30/K.Kandasamy was Chief Manager, State Bank of India, Sivakasi Town Branch on 08.10.2002 received a complaint from the brother of the customer D.Kamala and he is also an Advocate and his sister brought her pass book and authorisation letter request to transfer of Rs.95,000/-to Fixed Deposit. The said amount was available in the pass book. P.W.30 requested P.W. 36/Anantha Sayanam to do the needful. When P.W.36 checked the balance in the account of D.Kamala, he found that the balance was only Rs.42,716,03/-as per the computer. The credits in the pass book did not find place in the statement of accounts as avilable in the computer. P.W.36 informed this to the Chief Manager, who called the deceased appellant who was responsible for the savings bank section and asked him to verify. P.W.30 has deposed that the deceased appellant came to his cabin and stated that certain credits which should have been given to the account of D.Kamala had been wrongly credited to another account and that he would rectify the same. P.W.36 has deposed that the first accused/deceased appellant informed after some time that the account had been regularised. P.W.30/Chief Manager then stated that the Fixed Deposit Receipt could be issued. When P.W.36 http://www.judis.nic.in 11 checked the balance in the computer, he found that the balance was Rs.97,716,03/-and there was a new credit of Rs.55,000/- and it was mentioned 'Error Credit Rectification' and he did not issue the Fixed Deposit Receipt. When P.W.36 again checked the entries and the vouchers on 10.10.2002, he found that the credit to the account of S.Kamala, though given as 'Error Credit Rectification' was actually transferred from the account of Subburaj. Since this transfer was irregular, the witness prepared a note and gave it to the Chief Manager, giving the reasons for not opening Fixed Deposit in the name of S.Kamala and he had mentioned lack of balance and difference in the entries as found in the pass book and the computer statement as the reasons. He asked for a detailed enquiry to be made. The main allegation against the deceased appellant is that Non-accounting of cash remittances/deposits made by customers in the books of the bank and Non-accounting of clearing instruments submitted for credit of customer's accounts in the books of the bank; and Fraudulent withdrawal in customer's accounts by utilising cheque books said to have been issued to them.
13. From the evidence of P.W.40, subsequently the bank received several other complaints from the 28 customers there http://www.judis.nic.in 12 was discrepancies in their transaction and in their account. The amount which was deposited that was reflected in the passbook where as in the statement of accounts and also some of the amounts has not been credited and some of the amounts withdrawn without their knowledge. Therefore, P.W.30 gave a complaint to the police. The departmental enquiry was also initiated and also they filed a criminal complaint also by P.W.82.
14. Learned Special Public Prosecutor for CBI Cases pointed out that P.W.2, P.W.3, P.W.4, P.W.5, P.W.6, P.W.7, P.W.8. P.W.9, P.W.10, P.W.11, P.W.12, P.W.13, P.W.14, P.W.15, P.W.16, P.W.17, P.W.18, P.W.19, P.W.20, P.W.21, P.W.22, P.W.23, P.W.26, P.W.27, P.W.29, P.W.47, P.W.50, P.W.51 and P.W.63 had been examined to substantiate the prosecution case about the complaints given by the account holders.
15. Learned Special Public Prosecutor further pointed out that prosecution had also examined P.W.28, P.W.30, P.W.31, P.W.32, P.W.33, P.W.34, P.W.35, P.W.36, P.W.37, P.W.38, P.W.39, P.W.41, P.W.42, P.W.43, P.W.44, P.W.45, P.W.49, P.W.52, P.W.53, P.W.62, P.W.64, P.W.66, P.W.67, P.W.68, P.W.69, who are all officers and staff of State Bank of India, Sivakasi Town Branch, http://www.judis.nic.in 13 who identified the documents and also the handwritings and signatures of the deceased first accused.
16. The officials and staff members of State Bank of India, Sivakasi Town Branch who identified the documents and also handwriting and signature of the deceased first accused. The other witness, official witnesses those who were registered a case and First Information Report and investigation and also filed a charge sheet. P.W.81 is the Scientific Officer who was spoken about the specimen signatures and admitted documents and disputed documents and filed a report Ex.P.235 along with opinion.
17. The evidence of the account holders are narrated first. Prosecution examined 29 witnesses to substantiate their case in this regard.
18. P.W.2, Manjula Jayabalan W/o.Tr.Nedunchezhian, residing at No.80, Ananthappa Nadar Street, Sivakasi working as school teacher, deposed that she had a Savings Bank A/c.No. 01190008648 with State Bank of India, Sivakasi Town Branch and she identified Ex.P.3, account opening form. She further identified http://www.judis.nic.in 14 the deceased first appellant and stated that she used to conduct her banking operations through him. She stated that he used to fill the bank vouchers at the time of depositing or withdrawing cash. She identified Ex.P.4 and Ex.P.5 as vouchers relating to her account and stated that they had been filled by the deceased appellant, who had also initialed the same. She also identified Ex.P.6, Statement of Account taken from the Computer System and stated that Rs.1,900/-deposited through the bank vouchers is not reflected in the said Statement of Account. She had given Ex.P.7, complaint in this regard.
19. P.W.3, Mala Arunachalam, residing at No.1-J, Odai Street, Sivakasi, working as school teacher, deposed that she had an account with State Bank of India, Sivakasi Town Branch, and identified Ex.P.8, account opening form, Ex.P.9, passbook and bank vouchers, Ex.P.10 & P.11. She also claimed that credits were not reflected in Ex.P.13, Statement of Accounts generated from the computer. She further stated that she had deposited money only through the deceased appellant, and identified his writings and signatures she had given Ex.P.12, complaint in this regard. http://www.judis.nic.in 15
20. P.W.4, Vijayalakshmi Sekar, residing at No.1322, Thiruvallurvar Colony, Thiruthangal Colony, Sivakasi, working as School Teacher deposed that she had an account in State Bank of India, Sivakasi Town Branch and identified Ex.P.14, account opening form and Ex.P.15 passbook. She further deposed that she had deposited Rs.2,500/-on 02.08.2022 through the deceased appellant. She also identified Ex.P18, statement of Accounts, in which the credit is not reflected. She had given a complaint Ex.P.17 in this regard.
21. P.W.5 Paramasivam, residing at 2/1687, Sasi Nagar, Sivakasi, fireworks agent, deposed that he had an account No. 024034 in State Bank of India, Sivakasi Town Branch and identified Ex.P.19, account opening form. He further deposed that he knew the deceased appellant and also banking transactions were done through the deceased appellant. He further deposed that he had deposited two drafts for Rs.20,000/-each through Ex.P. 22 pay in slip through the deceased first appellant. The two drafts were marked as Ex.P.Nos.20 and 21. He further identified Ex.P.Nos.25 & 26 pay in slips and stated that though his name is found in the said vouchers, the signatures were not his. He identified the writings of the deceased appellant. With regard to http://www.judis.nic.in 16 the two demand drafts which were not credited to his account, he had given a complaint Ex.P.23 to the Bank. He also idnetified Ex.P.24 passbook and Ex.P.27, statement of accounts. There is difference between the entries as found in the passbook and as found in the Statement of Accounts.
22. P.W.6, R.Malliga, 2/1839, PSR Nagar, Vembakkottai Road, Sivakasi deposed that her late husband was running a shop near the bank, and the deceased appellant used to come to the shop often. She further deposed that she had kept Rs.30,000/-in State Bank of India, Sivakasi Town Branch in the name of her daughter Vidhya, and had also obtained a loan of Rs.16,000/-. She further stated that she does not know how to read or write, and used to transact banking operations only through the deceased appellant. She further stated that she had given a total sum of Rs. 8,250/-to the deceased appellant for deposit in the bank to clear the loan. Through the amount was reflected in the pass book, it was found through the Statement of Accounts that Rs.4000/-alone has been shown as paid towards the loan amount. She identified the counterfoils Ex.P.29 for her payments. She had also given a complaint, Ex.P.28 in this regard.
http://www.judis.nic.in 17
23. P.W.7 P.Gengammal. Residing at IV/1A, Gandhi Road, Kamarajar Nagar, Sivakasi working as staff nurse in Government Hospital, Sivakasi, deposed that she had an account in State Bank of India, Sivakasi Town Branch, bearing No.24311. She identified the account opening form, Ex.P.30, and her pass book Ex.P.31 (series). She identified the handwritings of the deceased appellant and his initials in her passbooks. She found out that there was a shortfall of Rs.10,000/- in her account and had given complaint Ex.P.31. She also deposed that though Ex.P.33 withdrawl slips were in her name, the signatures were not hers. She had given specimen signatures, Ex.P.34. She specifically deposed that she used to transact through the deceased appellant whenever she went to the bank. She also identified the statement of account, Ex.P.35.
24. P.W.26, Palanikumar, residing at No.5-B, Jheel Road, Sivakasi deposed that his mother's younger sister Gangammal (P.W.), had an account in State Bank of India, Sivakasi Town Branch and he used to go to the bank on her behalf and he used to transact through the deceased appellant both while depositing money and while withdrawing money. He further deposed that he had signed as 'Gengammal' in Ex.P.33 withdrawal http://www.judis.nic.in 18 slip which was filed by the deceased appellant . He further stated that he had withdrawn only Rs.3000/-, but the deceased appellant had filled in Rs.7500/-. He had given specimen signatures signing as 'Gengammal' to the Investigating Officer and identified Ex.P. 104 as the said signatures.
25. P.W.8 M.Appadurai, residing at No.34, New Police Quarter, Police Reserve Line, Sivakasi, retired Head Constable, deposed that he had an account in State Bank of India, Sivakasi Town Branch, bearing No.05684, identified the account opening form Ex.P.36 and his passbook Ex.P.38. He further deosed that he knew the deceased appellant and used to transact through him in the bank, both while depositing and while withdrawing money. He further identified the handwritings of the deceased appellant in his passbook. He had given Ex.P.37 complaint when he found out that there was balance of only Rs.1,251.29/-in his account as per statement Ex.P.39.
26. P.W.9, A. Backialakshmi, residing at 26B/669, 7th street, Subramaniapuram Colony, Sivakasi, deposed that she had an account in State Bank of India, Sivakasi Town Branch, idnetified the account opening form, Ex.P.40 and her passbook http://www.judis.nic.in 19 Ex.P.41 and deposed that since there was a shortfall of Rs.8000/-in her account, she had given a complaint Ex.P.42.
27. P.W.10, S.Kamala, residing at 1012, Indira Nagar, Viswanathan Pudur, Sivakasi, deposed that she had an account in State Bank of India, Sivakasi Town Branch and she identified her account opening form, Ex.P.43. She further stated that she does not know how to read or write and depended on the deceased appellant for all her banking transactions. She also identified her passbook, Ex.P.45. She also identified the bank vouchers, Ex.P. 46(series). She denied her signatures in two of the counterfoils. She had given her specimen signatures Ex.P.47. She had given Ex.P.44 complaint since there was a shortfall in her account.
28. P.W.11, S. Kaliappan, residing at No.29-C, Viswanathan Road, Sivakasi, deposed that he had sometimes worked in Venus Fire Works and he knows the deceased appellant. He deposed that he did not have any account much less A/c.No.01190024258 in State Bank of India, Sivakasi Town Branch. He denied his signatures in Ex.P.49(series) pay in slips though they were in the name of S.Kaliappan. He denied having deposited the sum of Rs.1,96,519/-through Ex.P.49 (series) pay in http://www.judis.nic.in 20 slips. He further deposed that when he was examined by the Investigating Officer, he was shown Ex.P.51, account opening form. He denied his signature in the said form. The account was introduced by the deceased appellant. The witness had given his specimen signatures, Ex.P.50.
29. P.W.12, R.Saraswathi, residing at 5/5/89, Arumugham Colony, Reserve Line, PSR Colony, Sivakasi, working as Ayyah in Noon Meals Centre in Sivakasi, deposed that her husband was working in Dubai and there was an account in State Bank of India, Sivakasi Town Branch in the name of her husband and she identified Ex.P.52, account opening form, having the photo of her husband. She further deposed that she used to deposit the cheques sent by her husband from Dubai through the deceased appellant , and specifically stated that she had given a draft for Rs.1 lakh to the deceased appellant to be deposited in the said account, and though the same was reflected in the passbook Ex.P.53, having the handwritings of the deceased appellant, the same was not reflected in the statement of accounts Ex.P.55. She had given a complaint Ex.P.54 in this regard.
http://www.judis.nic.in 21
30. P.W.13, F.Louis, residing at 6/100, Krishna Compound, Subramaniapuram Colony, Sivakasi, fish merchant, deposed that he was a neighbour of the deceased appellant and the 2nd accused and had an account No.08385 at State Bank of India, Sivakasi Town Branch which was opened through the deceased appellant on 12.10.2001. He identified Ex.P.56, account opening form. He further deposed that he had calculated that the balance should be Rs.41,000/-in his account, but when he verified with the bank, he found that there was only a balance of Rs. 1000/-. He stated this to the second accused and told her that he would give a police complaint against the deceased appellant in this regard. He further deposed that thereafter the second accused gave him Rs.40,000/-and took his passbook, which he has not got back. He further denied the signatures in the cheque leaves marked as Ex.P.58(series) and denied that he had transacted withdrawal through the said cheque leaves to a sum of Rs.1,86,500/-. He further denied the signatures in Ex.P.59 and Ex.P.60 bank withdrawal slips and pay in slips and denied the total transaction of Rs.1,26,090/-through the said vouchers. He had given is specimen signatures Ex.P.62. He identified the statement of account Ex.P.61.
http://www.judis.nic.in 22
31. P.W.51 Annamuthu Rani Louis deposed that she knew the deceased appellant and the second accused and was their neighbour in Sivakasi.
32. P.W.14 G.Sivaprakasam, residing at 1/497, Auditor Complex, 1st Floor, NGO Colony, Sathiapuram, Sivakasi, deposed that his employer Tr.Jagadish Shankar's wife Janakiammal had an account No.05847 and he used to go to State Bank of India, Sivakasi Town Branch on herbehalf and used to transact through the deceased appellant. He identified Ex.P.63 passbook and asserted that the entire handwritings were that of the deceased appellant.
33. P.W.50, Jagadish Shankar, residing at No. 76,Sharadha Nivas, Railway Feeder Road, Sivakasi deposed that his wife Janakiammal had an account No.05847 with State Bank of India, Sivakasi town Branch and stated that an amoount of Rs. 2,05,890/-was received by her from Insurance Company and this was deposited in the bank, and though the same was reflected in the passbook, Ex,P.63, it was actually not credited in the statemnet of account P.157. He identified the complaint, Ex.P.156. http://www.judis.nic.in 23
34. P.W.15, T.Mayakannan, residing at 9C, Police Station Road, Sivakasi had deposed that he had availed loan from State Bank of India, Sivakasi Town Branch and the loan A/c No. was 01593/02/05 and a joint account along with his wife. He identified Ex.P.65, Passbook and deposed that the handwritings and initials were of the deceased appellant. He further deposed that he had given a complaint Ex.P.64 since there was shortfall of Rs.1,37,000/-in his account as seen from Ex.P.66. Statement of Accounts. This amount was shown in Ex.P.65, passbook in the handwriting of the deceased appellant.
35. P.W.16, M.Angaleswari, residing at 138A, Shastri Veedhi, Velandipalayam (PO), Kovilmedu, Coimbatore, deposed that she had worked in Meridian Industries Ltd., a Mill Company in Sivakasi and had received as settlement a draft for Rs.45,100/-. She had opened an account in State Bank of India, Sivakasi Town Branch, through the deceased appellant and had given the draft to him to be deposited in her account. She identified the account opening form, Ex.P.70, in which the deceased appellant had signed as introducer, and the counterfoil of the pay in slip, Ex.P.68 and her passbook. Ex.P.67 in the handwriting of the deceased appellant showing credit of the above sum. However, this amount http://www.judis.nic.in 24 was not reflected in the Statement of Account, Ex.P.71, and she had given a complaint, Ex.P.69 in this regard.
36. P.W.17, V.Selvaraj, residing at 86A, Kaliamman Koil Street, Sivakasi, deposed that he, his wife and daughter are partners of Vadivel Fire Works and they had a current account and a term loan account in State Bank of India, Sivakasi Town Branch. He specifically deposed that he used to transact banking operations only through the deceased appellant. He identified the bank vouchers and the handwritings and initials of the deceased appellant. He had identified Ex.P.74 & 75 Statement of accounts for both the accounts. He specifically stated that though he had deposited a total sum of Rs.2,00,046/-on various dated in the Current Account, only Rs.92,950/-was actually credited and further a sum of Rs.47,882/-was not credited in the term loan account. He deposed that with respect to both the above he had given Ex.P.72 & 73 complaints to the bank.
37. P.W.18, P.A.Ramar, residing at 1/322, Alagapuri, T.Managasseri (PO), Sivakasi, deposed that he had opened account in Sate Bank of India, Sivakasi Town Branch on 19.07.1996 and identified Ex.P.76, account opening form and Ex.P.77 passbook. http://www.judis.nic.in 25 He further stated that he had deposited Rs.21,077/-on 14.06.2001. He further stated that when the balance should be Rs.11,178/-, he found that it was actually 1,099.63 according to the statement of account, Ex.P.79. He had also transacted only through the deceased appellant. He had given Ex.P.78, complaint in this regard.
38. P.W.19, G.Senthilvel, residing at 68, Katha Nadar Street, Sivakasi deposed that his uncle was running M/s.Birlakani & Bros. And he used to got to State Bank of India, Sivakasi Town Branch for banking operations where there was a cash credit account in the name of the said firm. He further deposed that he used to hand over cheques for deposit to the deceased appellant. He identified 7 counterfoils Ex.P.80(series) and stated that a total sum of Rs.1,68,414/-was not credited to the account and further deposed that in all the 7 counterfoils, the deceased appellant had put the bank seal and had initialed them. He further stated that a sum of Rs.47,800/-had been wrongly credited to the account. He identified Ex.P.81, complaint given by his uncle and Ex.P.82, statement of account.
http://www.judis.nic.in 26
39. P.W.20, S.Palanikumar, residing at No.151, Saminathan, T.Mangassery (PO), Sivakasi deposed that he had an account No.0190007607 in State Bank of India, Sivakasi Town Branch. He identified Ex.P.83, account opening form and further deposed that he used to transact only through the deceased appellant. He further stated that he had deposited by cash Rs. 23,000/-on 17.04.2002 through Ex.P.85 counter foil, but this amount was not credited and there was a wrong credit of Rs.500/-. He further identified the handwritings of the deceased appellant in Ex.P.84, pass book. He had given a complaint Ex.P.86 in this regard.
40. P.W.21, D.Kalavathy, residing at 3/188, Nagalapuram Village, Injar Post, Sivakasi, stated that she had an account No.439742 in State Bank of India, Sivakasi Town Branch and identified Ex.P.87, account opening form and passbook Ex.P.
88. She further deposed that she had obtained loan for purchase of two wheeler and she had paid through Ex.P.89 counterfoil, and there was a shortfall in her account to an extent of Rs.3,947.68 and this was found out from Ex.P.91 statement of account. She had given Ex.P.90 complaint in this regard.
http://www.judis.nic.in 27
41. P.W.22 K.Baskar, residing at 2/1185, Sivagandhi Nagar, Pallapatti Road, Sivakasi deposed that he had account No. 01195006815 in State Bank of India, Sivakasi Town Branch and idnetified Ex.P.92, account opening form and Ex.P.93, passbook. He further identified the handwritings of the deceased appellant in the bank. He also identified the handwritings of the deceased appellant in Ex.P.93. He further stated that he had given a complaint Ex.P.94 since a sum of Rs.1500/-was not credited to his account. He identified the statement of account Ex.P.95.
42. P.W.23, Tr.L.Adaikalam, residing at 5/7216, Kalpothu, Mudalipatti (PO), Sivakasi, stated that he had an account in SBI Sivakasi Town Branch and identified Ex.P.96, Account opening form and Ex.P.97, passbook. He further identified the handwritings of the 1st accused in Ex.P.97. He further deposed that he had given Ex.P.98, two complaints. He also identified Ex.P.99 counterfoil and stated that a sum of Rs. 8,000/- was not credited to his account. He also identified Ex.P. 100, statement of account.
43. P.W.27, D.Dhanalakshmi, residing at 1/297, South Street, Naranapuram Village, Sivakasi, deposed that she had an http://www.judis.nic.in 28 account in SBI Sivakasi Town Branch and identified Ex.P.105, Account Opening Form and also Ex.P.107 and P.108, pay in slips and withdrawal slips. She denied her signatures in Ex.P.109 withdrawal slips. She had given a complaint Ex.P.109 in this regard. She had also given her specimen signatures, Ex.P.110.
44. P.W.29, M.Kalimuthu, residing at 13, I ward, Periya Pottalpatti, Anayur (PO), Sivakasi, deposed that he had an account in SBI Sivakasi Town Branch. He further stated that he does not know to read or write and was dependent on the deceased appellant for banking transactions. He identified Ex.P.113, account opening form and Ex.P.114 passbook. He had given a complain Ex.P.115 since there was a shortfall of Rs.525/- in his account.
45. P.W.47, K.Muthuraj, residing at 53095, Muneeswaran Colony, Sivakasi deposed that his father S.Kalirajan was working in Mullai Bakeries at Coimbatore and had an account in SBI, Sivakasi Town Branch and he used to deposit money every week at the bank. He further specifically deposed that he used to give the cash every week to the 1st accused. He identified Ex.P.158 passbook and stated that the writings were that of the deceased http://www.judis.nic.in 29 appellant. He further deposed that since there was difference in the balance as shown in the passbook Ex.P.158 and the statement of accounts, Ex.P.160, his brother had given a complaint Ex.P.159.
46. P.W.63, V.Sathurappan, Venkatesa Naicker, residing at No.46, Chellsons Fine Arts Godown, Velayudham Road, Sivakasi deposed that he had opened a savings bank account in SBI, Sivakasi Town Branch bearing No.018667 on 06.11.1989 and he identified the account opening form as Ex.P.218. His wife had died. When she was sick, his son had sent a draft in the year 2001 for Rs.14,000/- for her medical expenses. The witness specifically deposed that he had given the said draft to the deceased appellant for crediting the same to his savings bank account. Even though his pass book showed credit, the statement of accounts generated from the computer did not reflect the said credit. He had given a complaint, Ex.P.112. The statement of accounts was marked as Ex.P.219.
47. P.W.24, Jeyalatchumi Ponnusamy, P.W.25, Tmt.Lilly Gnanamuthu and P.W.46, K.Kalirajan, who were involved with the http://www.judis.nic.in 30 accused as partners of Venus Fire Works Industries and as relatives. Their evidence was naturally not convincing. Still the relationship was admitted.
48. P.W.24, Jeyalatchumi Ponnusamy, residing at 82 H 4, Subramaniapuram Colony, Sivakasi, sister of the deceased appellant deposed about her relationship with the accused with the appellants. She also stated that P.W.13, F.Louis was a neighbour.
49. P.W.46, K.Kalirajan, residing at No.2/N/2, Sarada Nagar, Sivakasi also admitted to the relationship with the accused. His wife Rmt.Mary Rajan was partner of Venus Fire Works Industries.
50. P.W.25, Lilly Gnanmuthu, No.3/4D, MIG Flats, Anna Nagar, Madurai, partner, Venus Fire Works Industries deposed that she had invested a sum of Rs.3 lakhs received as benefits on her retirement as teacher in Venus Fire Works Industries and became a partner. P.W.46 is her sister's son. She identified Ex.P. 103, partnership deed. She stated that she did not get back her investment. She heard about the involvement of the deceased http://www.judis.nic.in 31 appellant in this case and the other partner, Tmt.Mary Rajan also confirmed the same.
51. Further, to strengthened the case of the prosecution also corroborated the evidence of above said witnesses. The prosecution has also examined 25 witnesses, other officials and staff members of the State Bank of India, Sivakasi Branch, customers with bank with regard to the entries made by the appellant. From the bank officials and staffs were clearly identified the documents and also handwriting and signatures of the deceased appellant.
52. Therefore, the prosecution meticulously collected by the evidence and placed before the Court and also during the trial all the complaint given by the account holders have examined in this case and they have clearly spoken about their accounts and also the accounts and also the misappropriation, forged signatures were forged and tampered and also the entries were money from the diverted into other accounts and without their authorisation or send his official witnesses.
http://www.judis.nic.in 32
53. From the evidence of prosecution, the prosecution has proved its case beyond reasonable doubt against the deceased appellant. Since there is no material documents to show that the other accused committed an offence they were acquitted. On reading of the entire oral and documentary evidence the charge was proved against the deceased first appellant under Sections 409 of the IPC r/w 13(1)(c) r/w 13(2) of the Prevention of Corruption, 1988(12 Counts) and under Sections 467, 471 of the IPC (13 counts) and under Section 477(A) of the IPC (8 counts).
54. The learned counsel for the deceased appellant would submit that the charges as framed by this Court cannot be sustained in view of provisions 219 and 220 of the Code of Criminal Procedure. That will apply only when two different cases are jointly tried. Here the case is different. On the basis of a complaint, prosecution had investigated and filed a charge sheet against the accused. A single charge sheet has been filed. It cannot be split up. Moreover, the alleged criminal acts have been done in the course of official duty of the deceased appellant. It is a continuous act of criminal breach of trust and misappropriation and forgery and using as genuine forged documents. The customers may vary, but the nature of the criminal acts are the http://www.judis.nic.in 33 same. I do not find any infirmity in the charge sheet or in the proceedings before this Court. I have also carefully considered the Judgments cited by the Learned Counsel. As stated earlier, they are mainly with respect to joint trial or two different cases, of two different charge sheets. That is not the case on hand.
55. It must also be kept in mind that the account holders were mainly dependent on the deceased appellant who filed the particulars in voucher, be it pay in slips or withdrawal slips. They had placed their faith in him. They believed him. He was, in their eyes a responsible public servant, an employee of the bank and the custodian of their money. He was the face of the bank. When they realised that there were differences in their bank accounts, at the first instance, it would be highly unrealistic for anybody to immediately blame the person they trusted. The account holders had trusted the deceased appellant. They had given the complaints stating that there was difference in their bank accounts. They could not have been aware of the person responsible. They were interested in getting back their money, in setting their accounts right. That was their first priority. It was for bank investigators to find out who was responsible. The http://www.judis.nic.in 34 account holders could hardly comprehend as to who was responsible for the shortfalls in their accounts. I do not agree with the line of defence that the complaints should be rejected merely because the name of the deceased appellant is not given. Actually, the fact that the name of the deceased appellant was not given strengthens the reality of the complaints. There was no prejudice or pre-determined effort to fix the responsibility on the deceased appellant.
56. The account holders mentioned above had also clearly deposed about having entrusted their money to the deceased appellant. Again they could not be blame any prejudice in their evidence. They were common people. Most of them did not know how to read or write. They depended on the deceased appellant. They handed over their money to him and they put their signatures in the places marked by him. They believed him. They were under the bonafide impression that they were safe in dealing with him. Their trust was misplaced. The money entrusted by them in trust was misappropriated.
57. The account holders also deposed about the handwritings and signatures of the deceased appellant in their http://www.judis.nic.in 35 pass books. The pass books were the only certificate known to them that their money was being safely dealt with by the bank. Their security lay in the figures given in the pass book. The signatures and initials in the pass book signified safety, security and that a responsible, trustworthy public servant hand authorised the correctness of the entries. Again, unfortunately, such innocent people had been defrauded mercilessly by the deceased appellant.
58. This is a case where amounts have been misappropriated from innocent account holders, without their knowledge. The deceased appellant had betrayed the trust reposed in him by the account holders of State Bank of India, Sivakasi Town Branch. He had indulged in systematic misappropriation of public funds for a continuous period of over two years. He had dishonestly and fraudulently misappropriated the amounts entrusted to him. He had false entries in pass books. He had forged the signatures of the account holders in the bank vouchers and had used the forged documents as genuine, though he knew that they were actually forged documents. The charges against him had been proved beyond all reasonable doubt by credible and reliable oral and documentary evidence. I also have regard to amount involved in this case and to the number of instances http://www.judis.nic.in 36 wherein criminal misconduct has been committed and the number of account holders who have been defrauded. Prevention of Corruption Act, 1988 had been enacted only to prevent and punish public servants who commit criminal misconduct, particularly against innocent people like the account holders as in this case.
59. As far as the M.P.(MD) No.1 of 2014 is concerned, at the time of conviction the deceased appellant was alive and he should have paid a fine amount imposed in the default sentence, exemption for payment of fine for accepting the security. Therefore, even if the appeal abates after the fine amount is paid need not to refund either to the appellant or to the legal heirs. So, in this case even appeal abates that the act proceed with the assets of the deceased appellant. The petitioners in Miscellaneous Petition is not entitled as prayed for in the Miscellaneous Petition. Hence, the Miscellaneous Petition is dismissed. The trial Court is directed to take appropriate action to recover the fine amount as per security bond given by them at the time of seeking exemption from payment of fine amount.
60. On a perusal of the records and the Judgment passed by the trial Court, this Court finds no illegality, infirmity or http://www.judis.nic.in 37 perversity in the Judgment of conviction and sentence dated 03.02.2009 made in C.C.No. 5 of 2005 on the file of the learned Special Judge for CBI Cases, Madurai and the same does not warrant any interference.
61. In the result,
(i). the Criminal Appeal stands dismissed.
(ii) and confirming the judgment of conviction and sentence dated 03.02.2009 made in CC.No. 5 of 2005 on the file of the learned Special Judge for CBI Cases, Madurai.
(iii). M.P.(MD) No.1 of 2014 is dismissed.
(iv). The trial Court is directed to take appropriate action to recover the fine amount as per security bond given by them at the time of seeking exemption from payment of fine amount.
31..01.2019 Index : Yes/No Internet : Yes/No. ksa http://www.judis.nic.in 38 P.VELMURUGAN, J.
ksa To
1. The Special Court for CBI Cases, Madurai.
2. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Crl.A(MD)No. 72 of 2009
31.01.2019.
http://www.judis.nic.in