B K Nair S/O Late P Madhava Nair vs The State By C B I / S P E on 28 September, 2010

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Karnataka High Court

B K Nair S/O Late P Madhava Nair vs The State By C B I / S P E on 28 September, 2010

Bench: N.Ananda

IN THE HXGH COURT OF KARNATAKA AT BANGALQRE
DATED THES THE 28TH DAY OF' SEPTEMBER.
BEFORE _  A V V
THE HONBLE MR.JUsT;g;E N. ANm~ei:A  
CRIMINAL APPEAL ix;o.31-7?]20Qm.3-..'    7

BETWEEN: ' l  V .
B.K.Na1r

S/ 0 late P.Madhava Nair

50 Years, Flat No.10} 1  _

Prtyadarshlnl Apartments - '

C.M.H.Road, Indiranagar  V V '   __ 

Bangalore -- 5600.038.   .  =  '_ E A'  ...Appellar1t
[By sr1.s.e.B:aag%..»a1.. }xd€~p6at¢:_)' ;.  " 

AND:

The Sfate--. ' 0   

By c.B.':./s..p.E.--V   

Bangalore. * V   =  ...Resp0nder1t
(By %:;sr:.0.H..Jaahax;. Advocate)

 appeal is filed under section 374 r/w section 376

 Cr_.1ic...:"a.;gains1.i~~t1qe judgment dated 04.02.2003 passed by

t."he"XXI Ad'éiti0nal City Civil and Sessions Judge and Special
Judge. F01' .VCBI Cases, Bangalore in SpI.C.C.No.216/1994

 :'"C.0nv1'cting the appellant/accused no.1 for offences
V"--l'_pVu,ni';-iehable under sections 120-13, 420, 468 & 471 IPC and



for an offence under section l3[1]{d)(ii} punishable.___under
section 13(2) of the P.C.Act, 1988 and sentencing"-him to

undergo RI. for one year and a ﬁne of Rs.5,000.,4~-=,.'in.

of payment of ﬁne to undergo further RI. foiﬁtlhreeyifnonthsu'.

for the offence under section 12Q:B__IPC _-arid" 

undergo R1. for two years and,' a   «--l.,,.vei,i1

default of payment of fine to underg:o._furthe_1j AR'.I 'fora

months for an offence under .section 1468 IPVCV-an4c1V's'ei1tenced"

to undergo R.I. for two years  a_ fine'  :Rs.8;000/--, in
default of payment of fine   of three
months R1. for an offencehnder'  IPC and further
sentenced to 1;ndergo""R.f;:"'  and a fine of
Rs.8,000/-,   of to undergo further
three "fo.1' :ai1je'j'oﬁ*encAe under section 471 IPC and
sentenced  ﬁI'or...th§1'ee years and a ﬁne of

Rs.10,000/--, in ..of «ﬁne to undergo further

period of 3 months-- 131.1; yforijythe'--~oi"fe.nce under section 13(2)

r/w section 13(1)(d}-olf P.C'.Act'.._ ;Al.l~'lthe substantive sentences

of irtoprisonnjentie on allV"Lhe& counts to run concurrently.

"3.l313--'3_;i1i~yCo_r:£iing on for final hearing this day, the

 Court deliVeredV"theV,{ol1.o:K}ing:



JUDGMENT

The appellant was arrayed as accused Nofl"

was tried with accused No.2 for offences sections 1208, 420, 468, 471 &_.1.o94Iptillsndosfso .fc_r ll offence under section l3(1}{d}[ii),lpunishablle. unildef 13(2) of the Prevention of Co1*:*uptionc- lXci:,_ "lshort;-it 'the Act'), in Special .oI1«l.theVAVf:i1e of XXI Addl. City Civil & SeslsAi«o.i5;s_ Judge for CBI cases at Bangalore. has convicted appelIant/ Noel punishable under SBCUOHS and for an offence under section I3[1}[pl}[ii)l section 13(2) of the Act. The learned trial accused No.2 for an offence punvfshab1e*u,_ndei¥e'- se'enon 12013, 420 81 471 IPC. Thelfefo1'e,"ap'pels1ant[ accuse'd'No.1 has filed this appeal. ha'{r_e_. Sljfi'll..S.G.Bhagavan, learned counsel for l";alppe1Iant/ a'ecuvs:e.d*Nllo.1 and Sri C.H.Jadhav, learned counsel l G

3. In brief, the case of prosecution is as follows:--

That during the period between 1985 to 1989, accused No.1-B.K.Na1r was working as the Branch Manager' Bank of India [later merged with Punjab Rajmahal Vilas Extension Branchl,""Bangalore,ljenieredﬂinto criminal conspiracy with accused7..l_lNo.2L1Vi_iR.*$a; Mohan Reddy, Proprietor sl."Un_1ve_rsa_1 l":.l;\/£eoaanical'v9l Engineering Works, l3angalor.elA'~-In=.._Vfurtherance} of such criminal conspiracyr "'accused sanctioned loan of Rs.5,00,000/-- on vhypotiiecatioiigof and machinery of M/s.Universal knowing full well that _was non--exisi,ent and non-

function«al."On 'the l:.recomfn1endation made by accused No.1, hypotljiecatlionf loan lwasuenhanced from Rs.8,50,000/-- to Rs;.l1.liZ.€}0,00Q/-- andbash credit facility for supply bills was Rs.5,00,000/-- to Rs.8,00,000/~«. In furtheranceholf criminal conspiracy entered into between accusevd";.Nos.1 & 2 during period between February 1989 A 1989, accused No.2 submitted 8 forged bills for R?' __ ix [3/k.-*~*'"(é£M. as?

total value of Rs. 15,88,287/--, falsely indicating supply of some material from M/s. Universal Mechanical Engineering Works to M/ s. Consolidated Power Systems came to be called as Powerica Ltd.}.

full well that these bills are forged:-.' S of attorney executed by accused S»re..i§isteret1:"'with M/s.Consolidated Power Ltd'. .[1a:.e£«..¢ame': to be" S called as Powerica Ltd'), purchasedthese bills. and allowed accused No.2 to ol'l§_s.5.~00,000/-- from his current account. Vintention of making pecuniary gain and ifjaccused no.2 and cause pecuniary National Bank [earlier known as New Bankoi I11dia}._.V'.9icculsed"No.I in return for undue favour shown to taccniised'-- extending credit facilities on the false an'd""'forged documents, gained pecuniary accused No.2, who had paid a sum of .Rs.l6l,OO_.Ot§:G_/.5 as royalty to one Thomas of M/s.Bangalore Super Seryice Station [a Petrol Bunk} to induct brother~»1n-- it Alaw<--..of accused No.1 namely Shakthi Kumar Gurha [PW16] 3r\i '\_,.\C£§_.

under section 120B IPC; rigorous imprisonment for two years and pay a ﬁne of Rs.8,000/-- with default sentence for an offence punishable under section 468 imprisonment for two years and pay a fine with default sentence for an oi'f'er1ce vu'nd'e.r section 420 IPC: rigorous impriso'i1m'e.ntffor pay a fine of Rs.8,000/- --d:eiTault Asentencfe-.jfo'r_:aniioffence" V punishable under _'IPC.' and.--:§ rigorous imprisonment for three' of Rs.10,000/-- with default sentence 13(1}(d}(ii}, punishable 1 sentenced accused No.2 to pay a fine of iyith default sentences of rigorous imprisonment' for one year each for offences punishable ,A underﬁsepotiorls, 1208, 420 a 471 19c. The learned trial .JL:dge"s£§:;t¢n;':é£i accused No.2 to undergo imprisonment till M V _ raisingof 'the Court for aforestated offences. =1 Accused No.2 had filed Criminal Appeal No.449_/ 2003. On 10.02.2004, this Court dismissed the said appeal :i-npview of the memo filed by the learned counsel permission to Withdraw the appealas not pre'sse:d_'; . It appears accused No.2, xivhoihad suii'ered'V'iiecp.'Bi1te sentence of imprisonment ciid"-not venture to IAJr[osvecu.te the,"

appeal. Thus, judgment of conviction No.2 for offences punishable usgsr 420 8: 471 IPC has attained ﬁnality. V l

6. In oﬂ:1:pfj1_e abm}e,: would arise for deter;:i1ination»:¢ 7f_ l {1} EW1riethVer* _ has proved that accusedv piV\'lo_.1>.Ii3b'.I{s~~;i\Iair while working as the Branch" Manager of New Bank of India (public V . Eservlalnt) merged with Punjab National "s:ss.1{).,:ii~sn1 July 1985 to August 1989 had criminal conspiracy with accused ?_\lo.;'3--f'l\/I.R.Sai Jagan Mohan Reddy, Proprietor of n s. Universal Mechanical Engineering Works, N (Béirsrrerr Bangalore and thereby committed an offence punishable under section 12013 IPC'?

(2) Whether the prosecution has proved :"

furtherance of such criminal conspiraazy, ;§:a,:e1~ee._ into between accused Nosji" & ac'cused.__£\'--o..lV"' by abusing his official pos'it.ion.A._fAgot cash credit facility, i'k'riowing-.. full w:ell..,.'vthat.3 M / s.U11iversal Mechanical? Engineering Works, owned by accused NQ.,2"'\;u§_§; unon--existe1'1t"Vand non--functi0nal and of criminal conspiracy entered. .:i_nt.o ' between accused Nos. 1 & 2, accused No.1 raised by acctised.««__i\lo;-?;',__ 'full,_:w,ell that they were forged..gi"'b1'ils, with."ou't.____cor:§firming power of accused No.2 from M/s.

lconsolfidateld.PoweréxSysterns Pvt. Ltd. (later call'e.dia.s Bangalore, in favour of 4, ' whorn ac:cusedV'l\lo.2 had raised 14 invoices of i;.€Etai'i-valueof"Rs.15,88,287/- alleging that he 'had certain material to them and « said bills and enhanced cash credit limitilto accused No.2 to withdraw the same " dishonest intention of causing wrongful loss to the bank and wrongful gain to accused if Nos.1 & 2 and thereby committed offences

-3r\$ T «_ £?/\~ -K ~-(.0c?»\ 10 punishable under sections 12013, 420, 468 4'?1lPC? ' l {3} Whether the prosecution has l"

accused No.1 being a public servant.d=_.1ringg aforestated period misused oI'fi<:e'*«as servant and obtained pecun.iar§rAlavdva11té1e'§'t? himself and his broth'erein--lauf~_narne1y'v:'Shakthi_:§ Kumar Gurha (PW16] accused&V"Nvo.2'1';and thereby coInrI11ft'i;-351 Elli"--,._hI1dler'"sectior1 l3(1)(d](ii), punishable"uniderusection. 113(2) of the Prevention of Corr1.1p_ti.onv.Act, (4) Whetsher tr_;-all' has properly apprepcia_t"e-;d e{fide_ne:e- record'? l'rrip11g;1.e.d judgment calls for i1;te1sf'7-'re11.C'e's'?.ljV' ~_ l " "

What order?"

alre_ady stated, judgment of conviction of accused mi-"'s.srre.i1e'es punishable under sections 1203, 420 & 47*}. IP_Chas attained finality. Therefore, it is not necessary for me=-to refer to the evidence relating to proof of aforestated ' foffe.nces against accused No.2. However, as the prosecution !

ix) , P/K 'vwﬂllx' 11 has invoked section 12013 EPC, it would be necessary for me to refer to relevant evidence appearing against accused-.nlo,.2.

8. Sri S. G.BhagaVan, learned '1" '=1 = .p appellant/accused No.1 has fairly».s:,1bmittedV'11 No.1 retired from service on and was filed on 25.11.1994. 1n'>trie\xzr of No.1 was not a public servarit:'..as*..on the«_dateE?of taking cognizance for offences....1:a11eg%ed2.:_bapainstjhirri, nonetheless I ﬁnd from the .vsancti:0ns-.:.«7:1:'Iiei' Ex.P.172 and evidence sanction order nor validity of: into question. The learned this point in favour of prosecutiori. In it is not necessary for me to .a_£d\r1e1*tr to this .. aspect.

» _p _.SAri.pS.,A:G.Bhagavan, learned counsel for accused No.1 1 has.yyinalde"_follo"vy'ing subrnissions:--

1 . Iﬁiiring relevant period, accused No.1 was working as a ., 'Brancli111Manager of New Bank of India. The final authority to R!' , 12 sanction term loan on hypothecation of plant and machinery and cash credit loan, bill discounting/ purchasing facility was the Regional Manager of New Bank of India sitaate at Madras. Accused No.1 had only 1'ecommended_ aforestated Eoan to accused No.2, which on..ve_ri§ic'ation was._ accepted by the Regional Manager;land:A4l'o«an:gwassanctioned to accused No.2. In fact. hypothecation loan; .if.a'cil1ity*.

enhanced from Rs.8,50,000/ 12,0t'}..__(l_)'(J0.v,..?-i-- and limit of V cash credit supply bills" was ¢:ifianT5~.j¢c1""r:pm Rs'.'3.0"o.ooo/-- to Rs.5,00,000/-- by the Regioﬁaii'r«iiahag§ir-- New Bank of India at Madras lettei' eVl.3.V:{)él1.1989 marked as Ex.P.436. inhlihe _.vgcircurnsta1ices,'= case of prosecution that accused' .No._1 'l1ad'-..'ent'er__ed"into criminal conspiracy with accused No.2 and had sanctioned loan to accused no.2 has notloeeii proved. H lllll H 'VI"hlot_1ghg;..accused No.1 as a Branch Manager was not the" sanctioning authority, he had responsibility to verify credentials of borrowers before making recommendations in their favour. Accused No.1 had misled the Regional Manager {V . M9" "* '"'5"{""

of Madras by making false recommendation that_..___M/s. Universal Mechanical Engineering Works is accused No.2. it is a small scale industry run ' No.2 in Yeshwanthpur at Bangalore,_ In uh' Department of Industries and Czomrrierce '"h._a'd _:"re:1:u>eateEi1ly visited the industry of accusIetl--.__No.2"'andsfotind{._'th.at Universal Mechanical Engineegririg. h non--eXistent in the address at Bangalore-

56O 022. The l.certificate._ of 'of small scale industry had o.2 by representing that M/ Englneering Works, is situate at l3angalore--56O 022. On verification." it M/s.Universal Mechanical Engineering""'.li_Io1'l:s' vrfasllllshifted to premises No.l87, lit"

phase, I5e'e'nya Industrial Area, Bangalore--58. On found that M/s. Universal Mechanical EnglineeringI:--fJ\Iorl:s was non--existent. Accused No.1 as the "l.,Branc'l'1VvlV;'Ianger of New Bank of India had responsibility to ascertain existence of M/ s. Universal Mechanical K!"

Engineering Works before making recommendation to the Regional Manager of Madras to sanction aforestated loan.

11. Accused No.1 having entered into criminal with accused No.2 had purchased/ invoices/bills raised by accused (prioﬁrietor of ll"

Universal Mechanical Engineering in=.f_a'vour Consolidated Power Systemsel-3_vt.._VLtd '(later carneAV.to...be <:alled,i as Powerica Ltd.) indicating sa1'e.,,§{ --.icerta'i'11.lrnatet?ials from 1V£/ s. Universal Mecha_ni'cal'l__ E;f;gineez:ing_g Works to M/ s. Consolidated Power Systems total Value of Rs. Well that bills were forged and a sulriaofcredited to current account of accused llvritla.di'ew the same. Accused No.1 had notﬁeven contir"med____pc»wer of attorney executed by accused » beforeLpiirchasing aforestated bills. Accused No.1 had cheques drawn by accused No.2 though such facility not been extended to him. Accused No.1 abusing official position as the Branch Manager of New Bank of "India obtained pecuniary advantage to his brother--in--1aw N 15 namely Shakthi Kumar Gurha (PWl6] as accused No.2 had paid royalty of Rs.6,00,000/-- to one Thomas to inductf as a partner of M/s.Bangalore Service Station"tpetrolfbugnle1 ~ near junction of Church Street and_.Brigade_~f{1oadé.':v.

12. At the relevant time, T. PW1;S..\17'enkatag1V_"Kri'shn1a=.rwas*.u working as an officer in Punjlabldrlational.Bank, vfithl which 1 New Bank of Endia w,as~..merged PW1 has given evidence in proof.1:o.F made by accused No.31 at Chennai to sanction Mechanical Engineering has given evidence relating to suloseiquentdvglrecomrnendations made by accused No.1 to enhance._"hyp'othiecation loan. PW1 has identified docéurnents ex1e'cute_d_'l:»y accused No.2 in relation to sanction ' {loan andisubsequent enhancement of loan facility. Though

1. haejgelen'extensively examined, 1 find PW1 has given consistent 'and credible evidence relating to procedure for recommendations for sanction of jloan to accused 1 gm, sf'/u "»~€'1& 16 PW1 has deposed Ex.P.63 <3: EX.P.64 are invoices raised by accused No.2 {M/s.Universa1 Mechanical Engineering Works at Bangalore) in favouiif . Consolidated Power Systems Pvt. Ltd.

04.05.1989. Invoice as per Ex.P.6.'::i.:4wa:saraised.' for Rs.-£44,708/-- and Invoice asjper hwa.s"h'r.aised sum of Rs.2,18,400/~. iigiade an endorsement to 'and further endorsed to purchase the During PW1 & an unsuccessfui 'wa"sEf_'xnade 'oyddaccused No.1 that he had not coIn1n'"te'du'any"offen'ce in discounting bills as per Ex.P.63 atEx.1é.s4_.""ifheV:'genuineness of these bills we: be discussed in the suhseojuent paragraphs of the judgment, yet 1'en*1ainsA','A-._accused No.1 before purchasing/discounting i"'bi1i-shxadinovt confirmed power of attorney stated to have been executed' in favour of M/s.Conso1idated Power Systems Pvt. dd . T'Ltdg., after raising bills in favour of the said c g pany. N m' K Hr 18 identiﬁed a cheque dated 11.04.1989 for a suijn of Rs.6,00,000/- drawn by accused No.2 in favou1<_4t_t'~of M/s.Devadaru Firms. PW2 has identiﬁed . accused No.1 affixed to pass the cheque as _--per'' corresponding entry as per another biii marked as Ex.;'3.64.5 dr§;1v.n91' by Mechanical Engineering' Works ddsuppiied rnaterials to M/s.Conso1idated Ltd. MVPWZ has identified signature of as Ex.P.64(b) and endorsenzentdgi"rrtacive'-- as per Ex.P.64{a).

PW2 has    per Ex.P.64, there is
a  as Ex.P.68(e); after

purchasingbill there was a debit entry for a sum', of ~Vd"':to C.C.Bi11 supply account of . ."'~AM/s.{Univers.a1 Mecdhanical Engineering Works of accused No.2.-- has deposed about other bills presented hyaccuvseddii which in fact were passed by accused No.1 and corresponding credit entries are made in the current accotint of accused No.2. PW2 has identiﬁed the cheque r\_;_ «_.....£?x *v*~<g#\« 19 dated 10.05.1989 marked as Ex.P.89 for a sum of Rs.i,O0.000/-- drawn by M/s.UniversaI Mechanical Engineering Works in favour of one Iqbal. PW2 hasgé signature of accused No.2 on said cheque as which was passed by accused no.-1 I"'P'N2 has. signature so also signature of accuised:'1§_llo.'l1 on has deposed; corresponding Vtoﬁcheque. per 'there' is an entry in Ex.P.73--ledger extract.

14. During eross--examihation and 2, the accused had so'u.gh't to:=.estah~lishi thaiteinofonly accused No.1 but also othef Vwere involved in the matteravvgof sanctivon. "ioanl to accused No.2 and also in the matter' of p':1rchas'in~g" credit bills/Invoices raised by accu;se'd..No.2 in name of M/ s Powerica Limited. P.Ws. 1 denied these suggestion, but on the other hand, 1 that accused No.1 who was the bank ma'i".1_age_r' masientirely responsible for recommending to the Vl"~regional,o'ffice to sanction term loan to accused knowing fully that M/s 'Universal Mechanical Engineering Works was (Vt /xe, .£3"- '"*'<'-Qﬁﬁt 20 non--ex;isting and r1or1--functior1al firm. They have deposed that accused No.1 had purchased the forged invoices raised by accused No.2 and had permitted accused withdraw a sum of Rs.5,00,000/-- though the bill . facility had not been extended to Rs.5,Q0p,_()00;f?."' " * «ll . l

15. At the relevant time, P.W.3 l\/foh'ammed_~_tIAqbal working as the Branch Managers lljoiver Systems Ltd. [later cam'e._to ﬁhwencét Ltd,)_ P.W.3 has stated that Ltd. was manufacturing 'dieQsel_ that purpose, they used {U suppliers and materialswtare factory shed. The suppliers used to give" dellivery challans along with the bills. After receiviing the material at the factory shed, staffs of M/s C'.oi1«soiid_ated--_:Power Systems used to put rubber seal and sig1'1€ttt1re' delivery challans to acknowledge the V _ receipt of 'material. Thereafter, they used to take the material into stock register. They used to pay amount to "suppliers by issuing cheques. During the year 1989. 21 M/s Universal Mechanical Engineering Works had not supplied materials to NUS Powerica. The bills numberi§1§r3g9 were marked as Exs.P101 to P149 they bear ~ Poweriea.

16. P.W.3 has deposed that the gseal:'aﬂTvX'e_d not the seal of M/s Powerica. The is-ignatL1i'festfo*undl'on"-- Ex.P3 are not the signatures of oi" anyof of the staff. P.W.3 l:1a"s._ denied' ':§i1i$V'V":n.grkéa"'as Veapee to Ex.P67 and EXPT4 and the seals of M/s Poweriea, 'doeuments are not the signatuteslllof of the staff.

Daring crso.ss«'e:;aIn.inaiion, P.W.3 has reiterated that there were tie business. transactions between M/ s Universal V' _Meeh;*i;2nie:alEngineeriiig Works and M/ s Consolidated Power denied the contents of bills marked as _l 74, 75 and 80 and the annexed 'e._?inVoieesv/cﬂelivery ehallans. He has asserted that these A e~:tf'doeiirinen.ts are forged and fabricated documents. N G;;.lp.l...a,..

17. P.W.3 was working as the Manager of Consolidated Power Systems. He did not have any grievance against accused No.2. In fact, he did not know accused-Nol_2,ll.jwe._ do not have any documents placed by accusedgﬂN--o.2:.lto lshowl I that M/ s Consolidated Power supply materials mentioned in the billsl'n_1arked."_as to P67 and EX.P74, P75 and ps0;"--f:on Careﬁll 'consideration of V' these documents, I find' that the of 'documents are not genuine. In the invoices ,'lc-v:e'diVt as Ex.P63, P64, P65, P6t5,. of delivery or the date the These bills were raisedlby M/'sttinittejrsavl"Mechanical Engineering works Ltd., situate l\io.l87,_ l3rd Phase, Peenya Industrial Areal'lI3angalore'~'5lt3l, inithe name of M / s Consolidated Power 107/1, Industrial Suburb, 2"d stage, l"Yes__wantpur;l.l.VBanga1ore--22. It is seen from the contents of Ex.P6that the manufacturing plaint of M/ s Consolidated J'I?ower Sfstems is situate at No.10?/1, Industrial Suburb, "A.'?._l1l"'-- stage, Yeshwantpur, Banglaore and its head office is 24 From these, it is clear that the accused No.1 had purchased these bills after alleged delivery of goods to the so called purchaser even without the conﬁrmation "aithez, purchaser. From the evidence of P.W.3. find: M accused No.1 had allowed accused'"No;2. to --l.thel'-.& money and also honoured cheque presen--t_ed byr'accL1.sed after purchasing aforesaid same'i.slthe"~--;situation "

with the bills marked aS.EXS.l??4,:.. I580... i..v'\§7\Fe have the cheques drawn favour of M/ s Devadaru Farrngnew No.2 was the proprietor. 5- No;_2__ll1as cheques in favour of differer;-Lt thevsum of Rs. 15,88,287/-- either V way of to the current account of accused Noll'. p_Va1id.V'-alsollbjlz honouring cheques drawn by ' ' .,accusedA"-No;»2. in favour' of different persons. of P.W.4 Hanumanthappa, P.W.5 Muni.yap.pav'and P.W.6 B.S.Bannagesh relatecg to the search . Jinade by them to locate the address of Universal Mechanical l Engineering Works. At the first instance, they searched for 3'\{ «,~.,«.:.€o~ .

25 the said factory at No.27, 15' Main road, Yeshwantpur, but however, it was not located there. They learnt that_..said factory was shifted to Peenya. Thereafter, they second address namely No.187, 11"' Main, 3*" Pl1ase.::F'e.e'1iya*' ' Industrial Area, Bangalore, only to _ﬁi2d_thajt Mechanical Engineering works was"':.notf_"existing"there.f"--..(jn.i further enquiry, they learnt that"~factory- had to 2 I I' No.14} /11, III phase, Ganganagar, 'Bangalore. On verification, it was found" that s:Uniy=ersa1 Mechanical Engineering Works was [the aforestated address. 'I'hi--1S, ,fro_m,the"evidence of "tl"1'ese witnesses and documelntlslvrriaicle tlielfirosecution, it is clear that the accus.ed«.No. 1 ,re'oon1inended for grant of term loan to M/s Universal Vl\/iecVl'i--.anivcal'*'Engineering Works, knowing fully "Vl'«..well',l__.thaiA it was"'a'--~-----non-existing/nor1--functional industry. mowing fully well that bills marked as Exs».f:>63, 74, 75, & 80 were forged documents and li,_gacculse.dl No.1 had purchased the bills and transferred the A f_*a,rno"ur1t to the current account of II--accused with dishonest r\; _ exaég. » 26 intention of causing wrongful loss to the bank and making Wrongful gain to accused 1 and 2.

19. P.W.'7 S.P.'I'hon1as has given evidence reIatingf_c'tod' _ pecuniary advantage obtained by aeciisea 1.; his official position as the Branch of India. BVK Iyengar Road, Ban-ggaiore. jhasvvddeposed S' that prior to 1969, he was workin.grin"-Essa o1'};~--co.rnjpany in Erode in Tamil Nadu. voluntary retirement scheme and ""I'he then ESSO company as Mark's Service Station Later its name was changed,' as "S Service Station. It was sanctionedin"thedddnarne"of"_wife of P.W.7 and P.W.7 was the man£iatvei'ho1der." :I§_.W,'? as a dealer knew to accused No.2 f§h;1ﬂf5aiV»Jagan--..Mohan Reddy. Accused no.2 had approached him to take his wife (wife of accused No.2)» asvga partner of M/s Bangalore Super Service Station. VVLV.Thessa.ici'e1;$roposa1 was forwarded to M/s ESSO Oil company was turned down as accused No.2 was already a f\_} . , 27 dealer in Petroi and he was running a Petrol Bunk in the name of Gojjer Service Station. Thereafter, accused "No.2 approached P.W.7 with a proposal that one of his shouid be inducted as a partner of said petroifstationexandt* V' said nominee being PW16-Mr.Sha}§ti""E{u.ifna-it it Shakti Kumar Gurha was then as Accountant at New Delhi. company the " it induction of PW16 asﬁta partne'r,_ in'sisted:§ by the company. daughter of P.WA'.g?'. as a partner of the said firm. _iii_the;'saidSparf.riersh'ip:jfinn, daughter of P.W.7 held __ 1.69/9 f«..y{:*e; o£.1.--e;f.V.-fhéid 55% share and PW16--Shai<ti held 'S50/o share. Accused No.2 gave P.WV.'7'-- a sum of Rs.6,00,000/-- as consideration foivinductidng his nominee[P.W.16) as one of "V"~._Athe-'.._p:art*nersA. of "" "Bangalore Super Service Station. The _said'"chegue"was issued in the name of Devadaru Fann. encashed the cheque. After some time, in the year 1992. ~~P.V'J. 16--Shakthi Kumar Gurha who was a partner had A "id-gAone'~«_.back to Delhi. Accused No.1 B.K.Nair were looking .25 €'\_) ' .-.. .. .

28 after the affairs of the firm on behalf of P.W. 16 Shakti kurnar Gurha. Accused No. 1 is T101158/l;h€1' than the brother in lasv of P.W.18 Shakti Kumar Gurha. The evidence of supported by documentary evidence. PW?' did have K grievance against accused Nos.1 andm2;"«Frc2m the ~e_vide.r:.»ceW.& of P.W.7, it is established that accused ._ position as a branch manager oflliilew Sank' " V iyengar road, had purchased Vt.h--e:.forged bills ~pres.ented by accused No.2 knowing fu'lllWelie_ tlioisellbills were forged. The cross~exami:fiation of l3V"$?{ suggestive in nature. [the circumstance under which .18iﬁyaglv::lind.uc.ﬁ¢d aslvlpartner of M/ s Bangalore Super Service' S'tation_tla1ad"rol'e played by accused No.2 has not been disptitedlby tlvielaccused.

P.llV'w;i8,S';--K.Guptha who was then working as Deputy l'GeneraI'manager has given evidence relating to enquiry held againstv--._Vaccu'sed No.1 and dismissal of accused No.1 from H service." l§'.W.8 has given evidence regarding procedure to be l"foll'o--wed for sanction of term loan and bill discounting 29 facility. P.W.8 has given evidence about sanction acc_orded by him to prosecute the accused. By the time charge-. was ﬁled, accused No.1 had retired from servicepﬂ ' there was no need to obtain sanction. to prosecutev»accusedV_p V No.1. Even otherwise, from the c.oIitents_ l"

sanction order and evidence of .8, isanctionlvorder.garinot 2 L' be assailed either on the ground:lofpcornpeteiicyvl of or lack of application of miiidﬂby "

21. At the relevant ggeiiit' V.V.Venkata Subramanyarn vthejﬂeputy General manager of M/s,.Prakash' was a financial institution. = raised a sum of Rs.5,00,000/-- from the finance.'.Coirn;tpany. Accused No.2 had paid certain' uinstalinients: regularly. The loan was granted to acC1ised_Vl\'o.2'vAby taking the house owned by accused No.2 in REX/IV._e;rtVeri'si.Qn',.l.;'}:'3angalore, as collateral security. After some V by _ time."accused"'V'No.2 approached the Prakash easing Ltd. and :tO1d,_.thE1V'l'1.'that he wants to sell his property which was . 'offered': as security to Prakash Leasing Ltd. and requested to W ﬁx 30 return title deeds relating to said house but the same was refused. Thereafterwards, accused No.1 gave a iett,e"1=.g of undertaking as per Ex.P176 on the basis of Prakash Leasing Limited returned title deeds of M which had been secured for grant ,«:5f'"ioa«n to The loan was not regularly repaid and to clear the loan, accused No.2'did..not hciear' eritir'e"loan. Accused No.1 paid partzof the..i'loan_:'--aﬁ1ount «land reriiaining was paid by accused No.2' J 'Reddy.

22. The evidei-icéj;:j.g.i"ve;ii--.pb§; 'i5.W;'i:o7txK..,1sorkar and P.W.11 C.J Frankie' is to thgeV'prosecution.

23. was then working as the Manager of aN6"¢'v'V BEiI11<i"voff'*7ii:1dia, RMV Extension. PW12 has V' after'e:<tending cash credit facilities to accused after~--.purchasing bills from accused No.2, the erihfanced credit supply bills limit was not ratified. The powe1'..of..attorney was not got registered with M/ s Powerica I '\F t r .. .4"... , 31 Ltd. and the account heid by accused no.2 was running irregular.

24. P.W.13 M.V.Nagaraj has been examined M M / s Universal Engineering Works w;1sA>n0t.fuij1ctioning 51.27 I main road, Yeshwanthpur, Bangalore: Therefore,"

punserved postal covers addressedto said ﬁrrnppwgréjeturned to the sender.

25. At the relevant point working as a handwriting PW 14 has deposed disputed signatures of disputed signatures and specimen signattipres-:_jw_ere__ ofthe same persons.

26. evidenctevtt of 15.W.17 and P.W.18 reiates to the case.

27. '"'On reappreciation of evidence of above witnesses, I find that prosecution has proved that accused Nos.1 and 2 had A exn'dtd<':;1:«ed into conspiracy to cause wrongful loss to bank and Pk} \-v g.-auxsgﬂu-' 32 wrongful gain to themselves and in furtherance of conspiracy, accused No.1 recommended for sanction. of giierm loan to accused No.2 knowing fully well that was not running M/s Universal Mechanical Eingirteering ' Works.

28. I find that during the peri.0d-

August 1989, accused Nos. 1 _entered:intoﬂicriminal conspiracy and in furthtt1%aince--'_VAof§'. accused No.1 recommended l'or grant__of .'fQ;:d..'accused No.2. Accused No.2 the month of February forged bills for a sum of Rs. /Qtfo./b Bank of India, RMV Extension branch. Accused N fully well that said bills were forgﬁtfl if 'mills virithout confirmation from M/s Con.solid'ated}?_ower Systems, in whose name said invoices l:adft_'cee'n purchased bills and permitted accused No.2'=.to xqjvithdraw a sum of Rs.5.00,000/-. Ewen, the conduct V. for .accu"sed no.1 and 2 subsequent to commission of .."a.fore.s'tated offences would manifest that brother--in--law of .5 R' , - x "~ 'Q-19*' 33 accused No.1 (1?-'.W.l6} was inducted as a partner of M/s Bangalore Super Service Station, at the instance of a.ccttsed No.2, for which purpose, accused No.2 had _ Rs.6,00,000/-- to P.W.7 S.P.Thornas to whom"*th.:<5{~.etioresaidvpl"

petrol bunk hag: been allotted. Further.,pfth4e.pfirst--. had offered himself as guararﬁor foijhthe accused No.2 from M/s.PrakashVf4f'i;easing was a financial institution. default in repayment of loan. of the loan and accused reinjaininhgiljfpfart of the loan. Accused it hiisllll'-official position as the Manager 'India suppressed the facts and recomrnendedl off.-~term loan. Accused No.1 had purchased f£l1E["tJil,lS- Valued at Rs.l2,00,000/~ presented by knowing full well that bills were not genuine had forged the bills. The power of attorney_ saidfto have been executed in favour of accused No.2 was not got conﬁrmed with the alleged purchaser of Q' rnaterial namely M / s Consolidated power systems. Accused 5'\J 34 Nos} and 2 had close contacts and business transactions. Accused No.1 by misusing his public position as Manager of New Bank of India had shown illegal _ accused No.2 who in turn had paid asum of 1' to P.W.7 to induct P.W.16(brother a partner of Bangalore Super>VSe_rvic§'*étationg accused no.1 gained pecuniarv"r»:.adIzantag-e for himself but also for his learned trial Judge on proper convicted the accused. 'QVI to interfere with the judgment.V_of Regarding senten'ce:.. _ 1 ' 1

29. As could' be" impugned judgment, the leamedv trial having held accused No.2 guilty of ,Aoffe.n:gccsﬁ punishable under sections 120-8, 420 & 471 of IFC. thebﬁee bite sentence of imprisonment i.e., till thediraisvingv"Lof the court for offences punishable under . .j:sections"' 120B, 420 and 471 IPC. Accused No.2 who had 'c_hai'renged the judgment of conviction in Crl.A.No.449/2003 x. .. \.'"*~-ﬁiﬁw 35 filed a memo on 10.2.2004 and got the appeal dismissed as not pressed. On a perusal of the memo filed by accused in Crl.A.No.449/2003, I find no assigned for getting the appeal dismissed 0' Obviously, accused No.2 who .0 sentence of imprisonment did not..__want'to take further risk. "

30. The learned trial Judge havii'i§p_:se'r1tenced' ac.ci1sed No.2 to undergo imprisonment '[116 C0111't f0?' offences ado, 471 of 1pc, had to untiergollimprisonment for 1 year 120~B of IPC, 2 years fof_ oifencelu -under sections 468, 420 8: 471 IPC and 3 uye_ars_fol' _otfenc:e1;under Sections 13(2) r/W 13[1)[d) lPC..«.i learnedltrial tludge has not convicted or acquitted the offence under section 468 of IPC more L lEparticularl'yf.,__ held him guilty of committing forgery of 0 _ bills"; This "only shows that the approach of the learned trial . .jJ.11yf1__ge in the matter of sentence is not only perfunctory but Without application of mind. S (Q l'\) . My V"-' ' 4"» 37 to the society. Therefore, I accept the appeal in part only to modify the sentence. I reduce the sentence of i1nprison1i'r--ent imposed on accused No.1 by the trlal court from two years to one year for an offence punish«aloleAanlnderl' Q Section 468 IPC: similarly, from 2:-y"éa1~s. to,' 1 for-«.ian"-.p offence punishable under section 420 'snﬁ:1;{r1g;, years to 1 year for an offence 471 IPC and nnprlsomnent 3 yearsA.'to l'l.._yearl'forAAani§ offence under section I3(1][d](it); section 13(2) EPC. The fine 1rnpos_ed The sentence of "»Jmprfi_sonn:ent:. if .aforestated shall run concurrentlyf" dlreclted towsend back records along with a copy'--of to secure accused no.1 to inlplement the" sentence.'*_ .....

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