Madras High Court
Sridharan vs State Represented By on 4 March, 2025
CRL.A(MD).Nos.436, 439 and 457 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 24.07.2024
Pronounced on : 04.03.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.436, 439 and 457 of 2021
Crl.A.(MD).No.436 of 2021:
Sridharan -- Appellant/Accused No.11
Vs.
State Represented by
The Deputy Superintendent of Police,
CBI/EOW, Chennai.
In RC 11(E)/2010/CBI/EOW/Chennai. -- Respondent
PRAYER: This Criminal Appeal is filed under Section 374 (2) of Cr.P.C.
to take this appeal on file, call for the records from the lower Court, hear
the counsel for the appellant/accused and allow the same by setting aside
the conviction and sentence imposed on the appellant/accused passed in
C.C.No.8 of 2011 by the II Additional Sessions Judge(CBI Cases),
Madurai, dated 27.09.2021.
For Appellant : Mr.AK.Azagarsami
For Respondent : Mr.M.D.Poornachari,
Special Public Prosecutor for CBI
1
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CRL.A(MD).Nos.436, 439 and 457 of 2021
Crl.A.(MD).No.439 of 2021:
Aarti Paul -- Appellant/Accused No.8
Vs.
State Represented through
The Deputy Superintendent of Police,
CBI/EOW, Chennai.
In RC 11(E)/2010/CBI/EOW/Chennai. -- Respondent
PRAYER: This Criminal Appeal is filed under Section 374 (2) of Cr.P.C.
to call for the records and set aside the Judgment and order in C.C.No.8 of
2011, dated 27.09.2021 passed by the learned II Additional District Judge
(CBI Cases), Madurai.
For Appellant : M/s.Chithra Sampath,
Senior Counsel
for Mr.Paul Manoj Pandian
For Respondent : Mr.M.D.Poornachari,
Special Public Prosecutor for CBI
Crl.A.(MD).No.457 of 2021:
1. M/s.S.A.S. & Co.,
Represented by its Partners,
S.Mustafa Nazar @ S.M.Nazar,
Door No.70, South Kadaya Street,
Tenkasi Taluk,
Tirunelveli District.
2. M/s.Shahul Hameed Rowther & Sons,
Represented by its Partners,
S.Sheik Mansur,
S/o.(Late) Shahul Hameed Rowther,
Door No.70, South Kadaya Street,
Tenkasi Taluk, Tirunelveli District.
2
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CRL.A(MD).Nos.436, 439 and 457 of 2021
3. S.Mustafa Nazar @ S.M.Nazar
4. S.Sheik Mansur --Appellants/Accused Nos.1,2,3 &5
Vs.
The Deputy Superintendent of Police,
Central Bureau of Investigation,
Economic Offence Wing,
Chennai.
(In Crime No.3 of 2011) -- Respondent
PRAYER: This Criminal Appeal is filed under Section 374 (2) of Cr.P.C.
to call for the records in C.C.No.8 of 2011 and to set aside the judgment
and order passed therein dated 27.09.2021 on the file of the learned II
Additional District Judge(CBI Cases), Madurai, by allowing the appeal
and to acquit the appellants.
For Appellants : Mr.C.M.Arumugam,
For Respondent : Mr.M.D.Poornachari,
Special Public Prosecutor for CBI
COMMON JUDGMENT
Since these criminal appeals are arising out of the same crime, these cases are taken up for hearing together and disposed of by way of 3 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 this common judgment.
2. The convicted accused Nos.1, 2, 3, 5, 8 and 11 in C.C.No.8 of 2011 on the file of the learned II Additional District Judge (CBI) Cases, Madurai, have filed following different criminal appeals before this Court, challenging the following conviction and sentence passed against them:
Sl. Appellant/ Accused Crl.Appeal Number
No
.
1 M/s. S.A.S.& Co (A1)
M/s. Shahul Hameed
Rowther & Sons (A2)
Crl.A.(MD).No. 457/2021
Mr.S.Mustafa Nazar @
S.M.Nazar (A3)
Mr.Shiek Mansur (A5)
2 Mrs.Aarti Paul (A8) Crl.A.(MD).No. 439/2021
3 Mr.V.Eashwar @ Crl.A.(MD).No. 446/2021
Venkatesh (A9)
4 Mrs.Indhira (A10) Crl.A.(MD).No. 449/2021
5 Mr.G.Sridharan (A11) Crl.A.(MD).No. 436/2021
6 Mr.K.L.Jayakumar (A12) Crl.A.(MD).No. 460/2021
3. Case of the Prosecution:
3.1. A8 is Mrs. Aarthi Paul and she is said to have given guarantee by executing the mortgage by deposit of title deeds to the loan obtained by A1 to A5 and it is alleged that she and other accused conspired together and created forged death certificate and legal heir certificate for her father claiming that A8 is the sole legal heir of her deceased father and under 4 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Ex.P4 and Ex.P5 she made the false representation that she was the absolute owner of the property and made the bank officials believe and accept her guarantee and thus paved way to disburse the loan to A1 to A5. A1 to A5 have had knowledge about the forgery of the said document, and without avoiding from obtaining the loan on the basis of the said forged deposit of title made by the A8 in the Adayar Sub Registrar Office appropriated the said loan amount within 1 day and diverted the entire loan amount. A11 manager of the Tenkasi Branch without verifying the genuineness of the said document and without any verification about the title of the A8and without following direction of higher authority, disbursed the loan to A1 to A5 against banking norms. Therefore CBI filed final report against all the accused for the offence under Sections 120B r/w. 420 and 471 r/w. 468 of I.P.C. and section 13 (2) r/w. 13 (1)(d) of P.C. Act 1988. The Learned Special Judge has taken the same on file in C.C.No. 8 of 2011.
3.2. After appearance of the accused, copies of records were furnished to them under Section 207 Cr.P.C. The learned Trial Judge, on perusal of records and on hearing both sides and being satisfied that there existed a prima facie case against the accused/appellant, framed charges 5 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 under Sections 120B r/w. 420 and 471 r/w. 468 of I.P.C. and section 13 (2) r/w. 13 (1)(d) of P.C. Act 1988 and the same was read over and explained to them and on being questioned, the accused/appellants denied the charges and pleaded not guilty and stood for trial.
3.3.The prosecution, in order to prove its case, had examined 51 witnesses as P.W.1 to P.W.51 and exhibited 112 documents as Ex.P.1 to Ex.P.112 and exhibited one material object series, namely, the photographs annexed with the valuation report Ex.M.O.45.
3.4.When the accused were examined under Section 313(1) (b) of Cr.P.C., with regard to incriminating material available against them from the prosecution evidence and the documents but each accused explained in detail and denied the accusation and they prayed for the acquittal. On the side of the accused, D.W.1 to D.W.5 were examined and Ex.D1 to Ex.D14 were marked. The accused Nos.8, 9 and 10 examined themselves as defense witnesses.
3.5.The learned trial judge after considering the entire evidence on record has acquitted the accused Nos. 4 and 6 and convicted the above appellants for the charge of 120 (B) r/w. 420 and 471 r/w. 468 of I.P.C. and section 13 (2) r/w. 13 (1) (d) of PC Act 1988 and imposed a sentence of 6 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 imprisonment and fine as stated below :
Sl. Accused Convicte Sentence of imprisonment and fine No d/ Acquitted 1 M/s. S.A.S.& Co Convicted A1 firm is sentenced to pay a fine of (A1) Rs.1,00,000/- (Rupees one lakh only) for the offences u/s.120-B r/w 420 and 471 r/w 468 IPC and Section 13(2) r/w 13(1)(d) of P.C.Act, 1988 and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) for the offence u/s.420 I.P.C. and to pay a fine of Rs,25,000/-
(Rupees twenty five thousand only).u/s.
471 r/w 468 I.P.C. (Total fine Rs.
1,50,000/-).
2 M/s. Shahul Convicted A2 firm is sentenced to pay a fine of Hameed Rowther Rs.1,00,000/- (Rupees one lakh only) & Sons(A2) for the offences u/s.120-B r/w 420 and 471 r/w 468 IPC and Section 13(2) r/w 13(1)(d) of P.C.Act, 1988 and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) for the offence u/s.420 I.P.C. and to pay a fine of Rs.25,000/-
(Rupees twenty five thousand only) u/s.
471 r/w 468 I.P.C. (Total fine Rs.
1,50,000/-).
7 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Sl. Accused Convicte Sentence of imprisonment and fine No d/ Acquitted 3 Mr.S.Mustafa Convicted Rigorous Imprisonment for one year Nazar @ and to pay a fine of Rs.1,00,000/-
S.M.Nazar (A3) (Rupees one lakh only) in default to undergo Rigorous Imprisonment for 6 months for the offences u/s 120-B r/w 420 and 471 r/w 468 I.P.C. and Section.
13(2) r/w 13(1)(d) of P.C. Act, 1988 and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.
25,000/- (Rupees twenty five thousand only) in default to undergo Rigorous Imprisonment for 6 months for the offence u/s 420 I.P.C. and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs25,000/- (Rupees twenty five thousand only) in default to undergo Rigorous Imprisonment for 6 months for the offence u/s 471 r/w 468 I.P.C. (Total fine Rs.1,50,000/-).
4 Mrs. Jasmine Acquitted (A4) 8 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Sl. Accused Convicte Sentence of imprisonment and fine No d/ Acquitted 5 Mr.Shiek Mansur Convicted Rigorous Imprisonment for one year (A5) and to pay a fine of Rs.1,00,000/-
(Rupees one lakh only) in default to undergo Rigorous Imprisonment for 6 months for the offences u/s 120-B r/w 420 and 471 r/w 468 I.P.C. and Section 13(2) r/w 13(1)(d) of P.C. Act, 1988 and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.
50,000/- (Rupees fifty thousand only) in default to undergo Rigorous Imprisonment for 6 months for the offence u/s 420 I.P.C. and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.25,000/-
(Rupees twenty five thousand only) in default to undergo Rigorous Imprisonment for 6 months for the offence u/s 471 r/w 468 I.P.C. (Total fine Rs.1,75,000/-).
6 Mrs.S.A.S. Acquitted Masoodammal (A6) 7 Mr.S.Abdul Acquitted Kadar @ S.A.Kadar (A7) 9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Sl. Accused Convicte Sentence of imprisonment and fine No d/ Acquitted 8 Mrs.Aarti Paul Convicted Rigorous Imprisonment for one year (A8) and to pay a fine of Rs.1,00,000/-
(Rupees one lakh only) in default to undergo Rigorous Imprisonment for 6 months for the offences u/s 120-B r/w 420 and 471 r/w 468 I.P.C. and Section 13(2) r/w 13(1)(d) of P.C. Act, 1988 and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.
50,000/- (Rupees fifty thousand only) in default to undergo Rigorous Imprisonment for 6 months for the offence u/s 420 I.P.C. and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.50,000/-
(Rupees fifty thousand only) in default to undergo Rigorous Imprisonment for 6 months for the offence u/s 471 r/w 468 I.P.C. (Total fine Rs.2,00,000/-).
9 Mr.V.Eashwar @ Convicted Rigorous Imprisonment for one year Venkatesh (A9) and to pay a fine of Rs.2,00,000/-
(Rupees two lakhs only) in default to undergo Rigorous Imprisonment for 6 months for the offences u/s 120-B r/w 420 and 471 r/w 468 I.P.C. and Section 13 (2) r/w 13(1)(d) of P.C. Act, 1988.
(Total fine Rs.2,00,000/-).
10 Mrs.Indhira Convicted Rigorous Imprisonment for one year (A10) and to pay a fine of Rs.1,00,000/-
(Rupees one lakh only) in default to undergo Rigorous Imprisonment for 6 months for the offences u/s 120-B r/w 420 and 471 r/w 468 I.P.C. and Section 13(2) r/w 13(1)(d) of P.C. Act, 1988.
(Total fine Rs.1,00,000/-).
10 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Sl. Accused Convicte Sentence of imprisonment and fine No d/ Acquitted 11 Mr.G.Sridharan Convicted Rigorous Imprisonment for one year (A11) and to pay a fine of Rs.1,00,000/-
(Rupees one lakh only) in default to undergo Rigorous Imprisonment for 6 months for the offences u/s 120-B r/w 420 and 471 r/w 468 I.P.C. and Section 13(2) r/w 13(1) (d) of P.C. Act, 1988 and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.
50,000/- (Rupees fifty thousand only) in default to undergo Rigorous Imprisonment for 6 months u/s 420 I.P.C. and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.50,000/- (Rupees fifty thousand only) in default to undergo Rigorous Imprisonment for 6 months for the offence u/s 13(2) r/w 13(1)(d) of P.C.Act, 1988. (Total fine Rs.
2,00,000/-).
12 Mr.K.L.Jayakuma Convicted Rigorous Imprisonment for one year r (A12) and to pay a fine of Rs.1,00,000/-
(Rupees one lakh only) in default to undergo Rigorous Imprisonment for 6 months for the offences u/s 120-B r/w 420 and 471 r/w 468 I.P.C. and Section 13(2) r/w 13(1)(d) of P.C. Act, 1988.
(Total fine Rs.1,00,000/-).
4.Challenging the said conviction and sentence of imprisonment, all the convicted accused have filed the following appeals before this Court 4.1. Connected accused viz A9, 10 and A12 have filed various above stated appeals before this Court being criminal appeals No. 446, 11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 449 & 460 of 2021 have been heard by the Learned Single Judge of this Court separately and the said appeals were allowed by a common judgment dated 21.03.2024 and A9, A10, A12 were acquitted.
4.2. The remaining criminal appeals filed by A8, A11, A1 to A3, A5 are heard together since they all arise from the common FIR and in a single trial in C.C.No. 8 of 2011.
5. Submission of the learned senior counsel Mrs.Chithra Sampath appearing for the accused No. 8/appellant in Crl.A.(MD).No. 439 of 2021:
5.1. The learned counsel has made a detailed submission in eloquent manner by reading the entire records of the appeal documents and also submitted detailed written submission. The sum and substance of the both oral and written submission of the learned senior counsel are as follows :
5.2. The prosecution miserably failed to prove the conspiracy between the main borrower namely A1 to A5, A11 and her client A8.
There were no material circumstances established by the prosecution through legal evidence either to presume the conspiracy or to infer any circumstance presumption to convict the accused under section 120 B of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 I.P.C. Therefore, the learned Senior counsel strenuously submitted that substratum of the prosecution case of conspiracy is not proved beyond reasonable doubt.
5.3. The Learned senior counsel submitted that the specific case of the prosecution is that A8 created the death certificate of her father and legal heir certificate for her father misrepresenting that she alone was the legal heir of her father and entered into fraudulent transaction of mortgage by deposit of title deeds in the Adayar Sub Registrar Office as a guarantor of the loan obtained by A1 to A5. Thus, according to learned Senior Counsel, A8's specific case was that she never handed over the death certificate of her father and legal heir certificate for her father to A12. The same was clearly stated by LW-37 namely Sundararaman who allegedly introduced her to A12 Jayakumar and A9 and A10. The said document has surfaced from the advocate office of Thiru.Maraimalai and there was no investigation by the CBI as to who LOs forged the said documents. The investigating officer has candidly admitted that he did not conduct any investigation in the said aspect. LW-37 also specifically stated that A8 only handed over the original title deeds and blue print of the house which stood in the name of her father to A12 and she did not hand over the said 13 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 forged documents. Therefore, no legal evidence is available against her either to prove that either she handed over the forged death certificate and legal heir certificate or she aided and involved in the preparation of the said forged death certificate and legal heir certificate. Therefore, the second material circumstance alleged by prosecution that she had involved in the preparation of the forged death certificate and legal heir certificate was not proved beyond reasonable doubt. From the records it is clear that the said forged death certificate and legal heir certificate first surfaced from the advocate's office of Mr.Maraimalai on 20.07.2006. In the said circumstances, CBI ought to have conducted investigation who were all involved in the forgery of the said documents when it is the admitted evidence of LW37 that A8 never handed over the said forged document to A12. The prosecution agency also failed to examine the said LW37 and intentionally omitted to examine him. Therefore, the evidence of A8 that she had no knowledge about the said document has to be accepted and hence the learned senior counsel seeks for the acquittal.
5.6. The learned Senior Counsel in this aspect also submitted that A8 alone made a complaint about the forgery of the said death certificate and the legal heir certificate long before the registration of the FIR by 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 CBI, before the Central Crime Branch, Chennai against the A1 to A5 and A12 and which was pending investigation in Crime No.46 of 2008 with allegation that A1 to A5, A9 and A12 forged the death certificate of her father and obtained the loan in clandestine manner. The investigating officer admitted the said pendency of the criminal case with the said allegation and he did not conduct any investigation into the said allegation. Therefore, without any proof of forgery of the death certificate and legal heir certificate of father of A8 either by her or any of the accused as admitted by the investigating officer, the entire prosecution case is without any substance. Therefore, the Learned Senior counsel pleaded to acquit A8 from all charges.
5.4. The Learned senior counsel further elaborated about lapse on the part of the investigating agency in not collecting material relating to those person who involved in the process of forgery of the death certificate and legal heir certificate. Failure to conduct investigation to the allegation made by her in Crime No. 46 of 2008 as per the procedure contemplated in 210 of Cr.P.C., caused miscarriage of justice which resulted in unwanted prosecution against A8.
15 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 5.5. The Learned senior counsel further made a submission that the investigating agency and prosecution agency did not act in fair manner to conduct fair trial in all aspects. The investigating agency never collected any material and never investigated into the matter who would have forged the death certificate and legal heir certificate.
5.6. The learned senior counsel further submitted that most of events on which the prosecution relied to convict her are not probable one. The said improbable events are not sufficient to even raise suspicion and hence prosecution miserably failed to produce sufficient evidence to base the conviction against the A8. According to the Learned senior counsel following events are material to disbelieve the prosecution case:
5.6.1. According to the prosecution, she agreed to give surety of the house which stands in the name of her father for the loan of A1 to A5.
Therefore, she had appeared and executed mortgage deed in the Adayar branch of the Indian Bank and entered into memorandum of articles on 22.03.2007 at Adayar registration office. On the same day itself the Tenkasi Branch made an endorsement of the said document under Ex.P13. It is admitted case of the both prosecution and the accused that Tenkasi branch is situated nearly 450 kms away from Chennai, Adayar 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Branch and therefore the presence of A8 and the receipt of the seal in the memorandum of Articles and deposit of title deeds registered on 22.03.2007 itself creates reasonable doubt about the involvement of A8 in the alleged course of the transaction. It is improbable to make herself available both in the Adayar office and the Tenkasi office on the same day. There was no evidence also in this aspect.
5.6.2. According to the prosecution, she only handed over the documents to give loan to A1 to A5 only on 03.08.2006. Prior to that all the documents including the alleged forged document namely death certificate and legal heir certificate were entrusted with the Marimalai advocate on 20.07.2006 itself. Therefore, there is a serious doubt over the prosecution case. The said dates are very much material in so far as the accusation against A8 is concerned since her specific case is that she wanted to avail loan to renovate her house and develop her school wherein it is being run. Therefore, she approached LW 37 and LW37 introduced A12 and A12 asked her to hand over the original title deed and blue print and obtained the power of attorney from her to arrange and obtain the loan on 24.10.2005. Thereafter, there was no communication from him and A9 and A10 gave an assurance to get loan. A9 had stated about the works of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 the Nila Group of company and she would arrange for the loan. Believing the words she appeared before the Sub Registrar Office, Adayar and put her signature without knowing the contents of the documents. The documents she signed show a long gap between her signature and the last line of documents, which was admitted by the prosecution witnesses. Suddenly she received notice under the SARFEASI Act and having enquired she came to know about the submission of the forged death certificate and legal heir certificate. Forgery by somebody is also revealed from the spelling mistake committed in the bank documents about her name and her husband's name. Therefore, her probable case is that A9 and other persons are involved in the forgery of the documents and A8 has proved her case by the theory of the preponderance of probability.
5.6.3. It is the case of the prosecution that she met the panel advocate of bank, Tenkasi, Mr.John. The said procedure itself is against the banking norms. Apart from that she never met the said John as alleged by the prosecution for reason that said John was not examined as a witness and said requisition letter dated 15.02.2007 also was not marked.
5.6.4. The material record to show that the entrustment of the document to create the mortgage deed namely KYC norms record was not 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 produced. As per the KYC norms, the guarantor must appear in person and make the endorsement in the register about the original documents entrusted with the bank. In this case no such document was produced. That apart, document execution register maintained in the bank with the signature of A8 also was not produced. Even in the Ex.P7 there was no reference about the same. Therefore, the learned senior counsel submitted that she believed A9, A10 and subscribed her signature in the Office of the Sub Registrar without knowing the contents of the document and subscribed her signature in the bank with the blank format without filing the contents of the blank columns mentioned in the guarantee document under the impression that the loan has been sanctioned in her favour to renovate her house and to develop her school. All the above circumstances coupled with her evidence clearly proves her plea that she had never involved in the act of forgery of the death certificate of her father and preparation of the forged legal heir certificate claiming herself as the sole legal heir. The learned Trial Judge failed to consider the same and erroneously convicted the accused.
5.7. The learned senior counsel after making the above elaborate argument, in conclusion submitted that A8 immediately after receiving the 19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 notice of the default from the bank under the SARFEASI Act, she not only made a complaint about the forgery of the death certificate and legal heir certificate and also settled entire amount without even enjoying any loan amount. This shows her bonafides in all aspects. The Learned Trial Judge failed to consider the same and erroneously convicted the accused. Apart from that there was no evidence that A8 had conspired with A1 to A7 and there was no acquaintance and her transaction was only with A9, A10 and A12. The conspiracy if any is only between her and the said A9, A10 and A12 and also the charge is that they are also involved in the forgery of the said death certificate and legal heir certificate. They were acquitted by this Court by judgment dated 21.03.2024 in Crl.A.No. 446, 449 and 460 of 2021. Therefore, there was no independent material to sustain the conviction against her. Therefore, the Learned senior counsel seeks to set aside the impugned judgment against A8.
5.8.In support of her contentions, she relied the following judgments:
Sl. Citations
No.
1 In the case of Hema vs. State through Inspector of Police,
Madras reported in 2013 (10) SCC 192
20
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CRL.A(MD).Nos.436, 439 and 457 of 2021
2 In the case of Babubhai vs. State of Gujarat and others
reported in 2010 (12) SCC 254
3 In the case of Baljinder Kaur vs. State of Punjab reported in
2015 (2) SCC 629
4 In the case of State of M.P vs. Mishrilal (Dead) and others
reported in 2003 (9) SCC 426
5 Kuldip Yadav and others vs. State of Bihar reported in 2011
(4) SCC 324
6 In the case of Zakia Ahsan Jafri vs. State of Gujarat and
another reported in 2022 SCC Online Sc 773
7 In the case of Sharif Ahmed and another vs. State of Uttar
Pradesh and another reported in 2024 SCC Online SC 726 8 In the case of State of Gujarat vs. Jayarajbhai Punjabhai Varu reported in 2016 (14) SCC 151 9 In the case of Jitendra Kumar Mishrar alias Jittu vs. The State of Madhya Pradesh reported in (2024) 2 SCC 666 10 In the case of Satye Singh & another vs. State of Uttarakhand reported in 2022 (5) SCC 438
6. Thiru.C.M. Arumugam of the learned counsel for the accused Nos.1 to 3 and 5 in Crl.A.(MD).No.457 of 2021 made the following elaborate submission :-
6.1. The Learned counsel took a different angle and made the contradictory argument by affirming the factum of death of father of A8.
He elaborated his argument on this angle that the prosecution miserably failed to prove the fact that father of A8 was alive. The prosecution is duty 21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 bound to prove that her father was alive. The prosecution examined two witnesses to prove the fact that her father was alive. Through the said witnesses, the prosecution never marked any document to prove that her father was alive and living in Australia. Therefore, the prosecution failed to prove the base of the charge that he was alive and the accused conspired together and prepared the death certificate and legal heir certificate in order to make illegal gain by submitting the same. The prosecution examined PW30 and PW32 and marked Ex.P104 to prove the fact that Shri M.S.Paul is alive. Their evidence is not sufficient to prove the criminal charge that these accused A1 to A5 and A9 and A10 conspired together and created forged document of Ex.P10 and Ex.P.11 that the said Shri M.S.Paul was dead. The CBI ought to have filed some documentary evidence to prove that the said Shri M.S.Paul was living in Australia. Ex.P.104 is not admissible one without compliance of the section 85 of the Evidence Act. The above aspect was not properly considered by the Court below and erroneously gave a finding that the said Shri M.S.Paul is still alive. Further, A5 came into box and deposed that the A9 was his friend and he assured to get the security from A8. A9 also deposed that on the request of the A5, he issued paper publication to request 3rd party 22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 collateral security. A8 was brought by the one Mr.Selvaraj to A9 and A9 met A8 and A8 agreed to give security for A5. A8 furnished the legal opinion along with the documents and he entered into agreement with A8 under Ex.P106 and he specifically deposed that he never received any document from A8. He acted only as a mediator and he has not even received the service charges on the account of the relationship between him and A5. Therefore, the case of A8 that she only handed over the original documents is not correct and A8 executed all the documents stating that she was the absolute owner after the demise of her father and now she pleaded converse to save herself. She deposed that she was not the owner of the property and she never intended to execute the mortgage deed and hence her act amounts to estoppel and therefore her evidence ought to have been rejected and seeks for acquittal.
6.2. The Learned counsel further submitted that A9 and A10 are husband and wife and A9 acted as a partner of the A1 and A2 company and A9 asked to enter into new business and the same required more than Rs.1 crore investment and hence he informed that A8 was ready to give collateral security. Therefore A8 gave consent and furnished the collateral security. They believed the statement of A8 that she alone was the legal 23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 heir of Shri M.S.Paul. Therefore, they had no chance to verify death certificate and legal heir certificate. In the said circumstances she stage managed to save her skin and took the plea that she never produced the said death certificate and legal heir certificate for the reason that he is alive. Both prosecution and herself never produced any material to prove that Shri M.S.Paul is alive. Hence, the prosecution case that this appellant committed offence of forgery is not legally maintainable.
6.3. Upon the allegation in the FIR that there was a forgery of the death certificate and the legal heir certificate of Shri M.S.Paul, the appellants have settled the entire due amount before filing the final report. They only acted on the basis of their trust upon A9. They sold their property and settled the entire loan amount. They had no knowledge about transaction entered between A8 and A9. They have transferred the amount to A9's account. The Learned Judge has also observed that these appellants have the transaction with the complainant bank from the year 1984 and they were good customers and they never committed any misdeed. The Learned Judge also found that the company have good turn over in all the years. Hence they seek for acquittal. In support of his contention he relied the following judgments: 24
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Sl.No. Citation 1 CDJ 2001 SC 196 2 CDJ 2007 SC 363 3 (2010) 3 MLJ 49 4 2007(4) CTC 144 5 2004 (10) SCC 131 6 2010 (3) MLJ 49 7 CDJ 2007 SC 363 8 CDJ 2001 SC 196 9 2021 SCC Online All 210
7. The submission of the Learned Counsel Mr.A.K.Azagarsami, for the A11 / appeallant in Crl.A.(MD).No.436 of 2021:
7.1. A11 is the branch manager during the relevant period of occurrence. He has no role in the entire loan transaction. The regional office alone verified the title and processed the loan and sanctioned the same. According to the prosecution after sanctioning he is said to have allowed A1 and A2 to withdraw the amount within two days i.e., 29.03.2007 and i..e,. 30.03.2007 and therefore he is a party to the diversion of the loan amount. A1 and A2 are standing customers and there is no specific restriction to disburse the amount and he came into the box as DW2 and deposed that the regional office orally instructed him to allow 25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 the transaction. His evidence has not been challenged during the cross examination. It is his specific case that the regional head office asked him to disburse the entire amount on the account of the year ending. Further, there is no bar to disburse the same. The same was also admitted by the PW1. PW1 is the circle head during the relevant period of the occurrence.
According to the PW1 allowing the customers to withdraw the amount other than the loan purpose is only irregular and not illegal. Therefore he seeks for the acquittal.
7.2. The Learned counsel further submitted that A8 came forward with case that she had no knowledge about the contents of the mortgage of deposit of title deed disclosing the death of her father and she specifically pleaded that he is alive. Per contra A5 pleaded that her evidence is not correct and she represented that her father was not alive and produced the death certificate and legal heir certificate and now she cannot be allowed to change the stand. She pleaded feigning ignorance intentionally to save her skin. In view of two versions relating to the death of the Shri M.S.Paul, benefit of doubt ought to have given to the accused, more particularly when CBI is known as prestigious investigation agency in all fairness should have collected some materials to prove that he was alive in 26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Australia. Therefore, he seeks acquittal. To substatiate his contention he relied the following judgments:
Sl.Nos. Citations
1. In the case of M/s Electronics Trade and Technology Develioment Corporation Ltd., vs. Indian Technologists and Engineers (Electronics) Pvt. Ltd & another reported in 1996 (1) SCR 843 2 In the case of State of Uttar Pradesh & Others vs.Brahm Datt Sharma & others reported in 1987 SCC (2) 179 3 In the case of State of Maharashtra vs. Som Nath Thapa reported in 1996 SCC (4) 659 4 In the case of B.H.Narasimha Rao vs. Government of Andra Pradesh, rep by CBI reported in 1995 Crl.J 4181 (9) SC 5 In the case of State of Tamil Nadu through Superintendent of Police, CBI/SIT vs. Nalini and 25 others reported in 1999 (5) SCC 253
8. All the appellants herein commonly submitted that A9, A10, A12 are the main accused in this case and they have allegedly prepared the forged death certificate and legal heir certificate and they have utilized the loan amount and they were acquitted by this Court. In the said circumstances, the appellants could not be isolated and convicted. 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021
9. Thiru. M.D.Poornachari, the Learned senior special public prosecutor for CBI made the following submission :
9.1. This is the case of the known bank fraud and the appellants herein conspired not only to commit offence and also conspired to escape from the legal punishment by taking the planned two diametrically opposite stand relating to the death of Shri M.S.Paul. A8 is not a rustic village lady. She has also completed Montessori Course for educating the children. She was well acquainted with the English knowledge. She also deposed before the Court in English. Therefore, her stand that she was unaware of the contents of the power of attorney and the deposit of title of deeds disclosing the death of her father and legal heir certificate cannot be accepted. She made the intentional false statement before this Court to save her skin. Therefore her case is rightly rejected by the Learned Trial Judge and there is no reason to interfere with.
9.2. A1, A2, A3 and A5 are closely associated with A9. Material available from the records clearly established that they have had meeting prior to the execution of the mortgage by A8. In the said circumstances, the case of A1, A2, A3 and A5 that they have no knowledge about the forgery of the death certificate and legal heir certificate ought to be 28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 rejected. The learned trial judge has not only considered the oral evidence but also considered the circumstances which clinchingly proved the conspiracy between A1, A2, A3, A5 and A8 to obtain the loan by making false representation about the ownership of property. Therefore he seeks to confirm the said finding.
9.3. The settlement of the amount after registration of the case is not a ground to wipe out the criminal prosecution. The Learned Trial Judge considered the said circumstances and showed his leniency by granting only one year sentence of imprisonment. Therefore, there is no reason to interfere with.
9.4. The CBI have collected all the materials to show that Shri M.S.Paul was alive and also examined two material witness. The non– examination of the said Shri M.S.Paul and non- submission of the any documents collected from the Australia where he is said to have lived is not a ground to disbelieve the sufficient material adduced before the Court.
9.5. The discrepancy pointed out by the learned senior counsel for A8 relating to the furnishing of the forged certificate and the non examination of the Thiru.Mariamalai advocate are not relevant when A9 29 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 specifically deposed that she only handed over the documents to the bank coupled with the circumstances that she made affirmative statement in the power of attorney registered in favour of A12 that her father was dead leaving her alone as sole legal heir. Her evidence to contradict the registered document cannot be accepted. The examination of witnesses was conducted after lapse of serveral years even as CBI registered the case after two years from the occurrence date. Therefore, the discrepancy is not material one. Available evidence is sufficient to hold that the prosecution proved its case beyond reasonable doubt.
9.6. The learned single judge of this Court acquitted A9, A10 and A12 by segregating the appeals from other appeals and the same was brought to the knowledge of the head of the department and they are taking the steps to file appeal and also the said acquittal judgment is not a ground to acquit this accused since the available material are clearly sufficient to sustain the conviction passed by the Learned Trial Judge. In this aspect he relied the judgment of the Hon’ble supreme Court reported in 2002 (8) SCC 381. In support of his contention, he relied the following judgments:
30
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Sl. Judgments Nos.
1 In the case of Kashinath Monadal vs. State of West Bengal reported in 2012 (7) SCC 699 2 In the case of CBI vs. Jagjit Singh reported in 2013 (10) SCC 686 3 In the case of Shafhi Mohammad vs. State of Himachal Pradesh in SLP Crl.No.2302 of 2017, 2018 (2) SCC 801 4 In the case of Gopakumar B.Nair vs. CBI reported in 2014 (5) SCC 800
10. This Court considered the elaborate rival submissions made on the either side and perused the volumes of records and the impugned judgment and the precedents relied by them.
11. Now the question that arises for consideration of this Court in this appeal is whether the conviction and sentence passed against the appellants is legally sustainable inspite of the acquittal judgment passed against the A9,A10 and A12 in Crl.A.(MD).No. 446 of 2021, 449 of 2021 and 460 of 2021.
11.1. Whether the sentence of imprisonment imposed by the learned trial judge needs any interference.
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12.Discussion on merits:
A8 is named as Aarti Paul. Her father is Shri M.S.Paul. Her mother is Smt.Hema Paul. Her younger sister's name is Avanthi Paul. PW 30 is her maternal uncle. According to PW30, both Shri M.S.Paul and Smt. Hema Paul got divorce and they were living separately. Shri M.S.Paul has his residence at Australia. Smt.Hema Paul has her residence at U.S.A. Avanthi Paul is with Smt.Hema Paul. Before divorce, Shri M.S.Paul purchased a house property in the year 1977 and he left India and in the said house A8 is living. The said house, contains two portions namely ground floor and first floor. A8 after completing her +2 studies, she had undergone Montessori Course for children and running a “Daycare” for children in the portion of the house ever since 2002. To accommodate more children, she wanted to avail interest free loan to renovate the house and expand the “Daycare”. She informed the same to one of her staff namely Kavitha. The said Kavitha introduced her to her husband Sundaraman (LW37) and requested to help and arrange a loan. The said Sundaraman, initially introduced the A12. A12 made assurance to arrange the loan. To arrange the loan, he asked A8 to execute power of attorney in his name. On 24.10.2005, A8 had executed a registered general power of 32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 attorney in favour of A12 under Ex.P94. But, A12 failed to obtain loan and he prolonged the said process. Therefore, she again contacted L.W.37 and he introduced A9 at his office, T.Nagar, Chennai. A9 explained to her working system of Nila Group of Companies and A9 entered agreement with A8 to arrange interest free loan of Rs.10,00,000/- upon her furnishing collatral security of her house. She agreed and she gave collatral security of the property stood in the name of her father for the loan of A1 and A2 firms and executed the deed of memorundam of title of the property in theSub-Registrar Office, Adayar, with the contents that her father had died and she was only legal heir and she was the absolute owner of the property. She also executed consent letter to the bank that she was ready to give security of her property for the loan of A1 and A2 firms. After the execution of the collatral security, loan amount was credited in the A1 and A2 firms and the A1 and A2 firms said to have committed default in repayment. Thereafter, bank officers conducted enquiry and the same revealed that the title was defective and there was willful misrepresentation about the death of the father of A8 and defrauding the bank amount. Thereafter, the CBI registered the case and filed the final report against A8. Now, A8 took a defence that her father was alive and 33 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 she never handed over the death certificate of her father, legal-heir crtificate of her father and she never executed deed of memorundam of deposit of title deeds in favour of A1 and A2 firm with knowledge about the contents of the documents. She also raised defence that the document was concocted by the other accused. She also suspected the said document was prepared in the advocate office who gave the legal opinion. But, the learned Special Public Prosecutor appearing for CBI would submit that she not only executed the deposit of title deed on 22.03.2007 but even prior to that she also executed another registered power of attorney in favour of A9 dated 23.08.2006. In the said power of attorney deed also she represented as a absolute owner of the property. Further, she also sent a letter to the Electricity Board to change her name with clear disclosure about the death of her father on 10.03.2002 and she is the only legal heir. She is well conversant with the English and in order to escape from the proseuction, she stepped into witness box as D.W.5 and deposed that she was cheated by the remaining accused.
12.1.The learned counsel appearing for A1, A2, A3 and A5 would submit that A8 executed the deposit of title deed as a guarantor upon 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 furnishing the number of documents including the death certificate of her father, legal-heir certificate of her father and now for the best reason known to her took a different stand about the death of her father. But, she has not produced any evidence to show that her father was alive.
12.2.This Court has perused the following documents:
Exhibits Date Description of documents
Ex.P7 22.03.2007 Xerox Copy of agreement relating to deposit of tile
deeds executed by A8 in favour of Indian Bank at S.R.O., Adayar Ex.P8 22.03.2007 Consent Letter of A8 to the Senior Manager, Indian Bank, Tenkasi Branch Ex.P9 16.10.2006 Letter of A8 to TNEB, Adayar, Chennai Ex.P10 22.03.2007 Consent letter of A8 to the Senior Manager, Indian Bank, Tenkasi Branch.
Ex.P11 12.04.2002 Original Death Certificate of Shri.M.S.Paul. Ex.P12 12.06.2003 Original Legal heir-ship Certificate of Shri.M.S.Paul Ex.P13 22.03.2007 Agreement of Guarantee executed by A8 at Indian Bank, Adayar.
Ex.P14 22.03.2007 Letter of A8 confirming extension of equitable mortgage, executed at Adayar Ex.P15 22.03.2007 Letter of A8 acknowledging the deposit of title deeds executed at Adayar Ex.P16 22.03.2007 Form 34 A executed by A8 acknowledging and confirming the deposit of title deeds executed at Adayar Ex.P50 20.07.2006 Legal Opinion of Panel Advocate Shri.K.Maraimalai about the Adayar property 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Ex.P51 15.02.2007 Legal opinion of Panel Lawyer Shri.S.Jones about the Adayar property Ex.P54 25.02.2007 Two cheque leaves (A/c.No.) drawn by Nila Exporters and Marketing India Pvt.Ltd, for Rs. 5,00,000/- and for Rs.1,50,000/-
Ex.P55 25.02.2007 B.P.O's (2 in Nos.) purchased by Nila exporters and Marketing India Pvt.Ltd., from A/c.No.720568644 Ex.P71 24.10.2005 General Power of Attorney executed by Tmt.Aarti Paul infavour of K.L.Jayakumar (True copy) Ex.P72 22.03.2007 Agreement relating to deposit of title deeds executed by Tmt.Arti Paul infavour of Indian Bank (True Copy) Ex.P74 15.02.2002 Genuine Death Certificate issued by Corporation of Chennai Ex.P75 --- Death Registration Register Extract for 10.03.2002 (Attested copy) Ex.P76 --- Death Registration Register Extract having registration No.270 (Attested copy) Ex.P94 24.10.2005 Xerox copy of General Power of Attorney executed by Smt.Aarti Paul infavour of K.L.Jayakumar Ex.P104 30.12.2008 Special Power of Attorney executed by Shri.M.S.Paul Ex.P105 --- File containing 1 to 46 sheets Ex.P106 --- File containing 1 to 24 sheets Ex.P107 --- Receipt Memo along with Xerox copies of sale deed in the name of Shri.M.S.Paul and agreement relating to deposit of title deeds executed by Tmt.Aarti Paul. Ex.P112 20.10.2008 Copy of Police complaint lodged by Tmt.Aarti Paul with Central Crime Branch, Chennai.
12.3.This Court also considered the evidence of D.W.5, P.W.50, D.W.4, P.W.44 and the explanation furnished by the appellant during the proceedings under Section 313 of Cr.P.C.
36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 12.4.At the outset, this Court declines to accept the plea of A8 that she never executed deed of memorundam of mortgage by deposit of title deeds by giving her property as a security for the loan of A1 and A2 firm by deed dated 23.02.2007 without knowledge of the contents of the document. From the records and the evidence of A8, it is clear that after completing her +2 studies, she had undergone Montessori Course for children and running a “Daycare” for children in the portion of the house ever since 2002. She had fluency in English. She also deposed in her chief examination before the trial Court running more than 5 pages in English and she meticulously replied herself to the cross examination of her evidence in English.
12.5.The copy of memorundam of deposit of title deed marked as Ex.P72. In Ex.P72, document No.11 is the death certificate of father of A8, Document No.12 is the legal heir certificate of her father. A8 examined herself as D.W.5. She admitted her presence in the registration office and also she subscribed her signature in Ex.P72. The said Ex.P72 itself was executed in English. Therefore, her sepcific stand that she was 37 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 unaware of the contents of the document Ex.P72 and her mind did not accompany with the contents of the documents has no legs to stand on for the reason being that her evidence runs contrary to the contents of the registered documents. No acceptable evidence is adduced to show that she signed the document without knowing the contents of the memorundam of deposit of title deed.
12.6.The prosecution case is further strengthened from the memorudam of understanding entered between A8 and A9 and the same was marked as a part of the documents under Ex.P106. Ex.P.106 is the document creating the obligation upon A8 to give the collatral security of the property on the basis of the undertaking that A8 agreed to receive interest free Rs.10,00,000/- loan amount after signing the necessary document in favour of the bank. She also received Rs.1,75,000/- as a cash advance with signed receipt. The said document contained two following material particulars subscribed by A8 in her own handwriting. She has also admitted in her cross examination about the said material particulars:
She was questioned about the endorsement during her cross examination which reads as follows:
38
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 In Ex.P.106 memorandum of understanding, it is stated that i hereby give me consent that I Aarti Paul wife of Michael Muthu handed over all the original documents relating to my house property bearing Door No. 25, 5th Street, Padmanaba Nagar, Adayar, Chennai -20 to Mr.Eshwar regarding his company collateral purpose on this day of 25.02.2007 signed due to the best of my knowledge, but I do not know the contents”.
12.7.From the abvoe reading of the evidence and the contents of the 39 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 documents, this Court has no reason to accept her specific stand that she was unaware of the contents and her mind did not accompany with contents of the documents. In the considered opinion of this Court, she had feigned ignorance in order to save her skin.
12.8. In Ex.P9, she also clearly submitted representation to the Tamilnadu Electricity Board to change the Electricity Service connection from her father name to her name stating that her father had died on 10.03.2002 and she was only the legal heir with annexure document of legal heir certificate and the death certificate. In this also there is a specific reference about the loan of A1 and A2 firms. Therefore, the prosecution is correct in saying that A8 intentionally disclosed the false particulars about her father's death from the following contents of the document Ex.P9:
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13.The prosecution also produced the registered original power of attorney deed executed by A8 in favour of A12 as Ex.P71 and the same also contains about the affirmative statement of death of M.S.Paul on 10.03.2002 and A8 is sole legal heir. The material content of Ex.P71 is as follows:
41
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 “Mr.M.S.Paul died on 10.03.2002 at Chennai. Leaving behind him, the principal AARTI as his only surviving legal heir. The principal has been in continuous, uninterrupted peaceful possession and absolute enjoyment therefore, with full powers of alienation, without any let or hindrances, ever since the date of succession”.
13.1. The said document was witnessed and attested by Sundaraman (LW37) and Ponambalam (PW50). P.W.50 cogently deposed about the said execution. Even A8 in her deposition has not denied the same. The said power of attorney was executed in favour of A12 to obtain loan. Subsequently, A12 failed to obtain loan and he prolonged the said process. Therefore, she again contacted LW 37. The LW37 then introduced her to A9 at his office T.Nagar, Chennai and she obtained the loan upon execution of the deposit of title deed dated 22.03.2007. The portion of the loan amount was also transferred by way of demand draft dated 25.02.2007 and the said DD was form part of Ex.P106.
14. She was present in the registration office to register the deposit of title deeds under Ex.P.72 and also she executed the same. The said forged death certificate and legal heir certificate were annexed with Ex.P. 42 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 4 and Ex.P11. Now she cannot be allowed to change her stand that she has not furnished the legal heir certificate and death certificate. The said deposit of mortgage deed was in English language and she also was present in the said registration office and executed the same under Ex.P7 and the same was witnessed by A9. She also put the thumb impression in the same. Further, she also wrote her name and address. Therefore, her plea that she executed mortgage deed without knowledge of the legal heir certificate and death certificate cannot be accepted. The death certificate dated 12.04.2002 and the legal heir certificate dated 12.06.2003 also form part of another deed namely power of attorney marked under Ex.P.8.
Therefore, prosecution has also produced another documentary evidence to corroborate forgery of death certificate and legal heir certificate. Further, on 16.10.2006, A8 submitted a requisition to the Assistant Engineer No.II, Tamil Nadu Electricity Board, Adayar, Chennai under Ex.P9. From the perusal of Ex.P106, it is clear that she received the notice under the SARFAESI Act, by notice dated 07.07.2008. Thereafter, through herself acknowledged about the forgery of document by the conspiring act of remaining accused, she gave the complaint agaisnt A12 and other accused before the Inspector of Police Crime Branch, Chennai and she 43 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 also sent a communication to the Chief Manager Indian Bank Tenkasi on 16.09.2008 to drop the proceedings. From that day onwards, she took a plea that his father was alive to save herself. Therefore, the plea of A8 that she never furnished the particulars about the death of her father in the above registered documents and other documents is stage managed one and this Court is not inclined to accept the same.
15. In her complaint to the state police dated 16.09.2008, she stated that she received notice under the SARFAESI Act on 07.07.2008 and she collected the documents and found that A9 had played fraud and forgery by creating certain fabricated documents such as death certificate and legal heir certificate of her father and obtained the loan and her father is still alive and working in Perth, Australia. The said police complaint has not been investigated. On his failure to arrange a loan, A12 refused to give said documents. Therefore, after arranging the loan with the A9 and A5 she entered agreement with A9 to repay the said amount.The amount was also transferred after the loan transaction in the name of A12. In her evidence, she never disclosed in any of the above transaction and she never denied the said document Ex.P106. Therefore, her plea that her 44 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 father was alive is a stand taken subsequently. In any event, according to the prosecution she is said to have produced the forged death certificate and the legal heir certificate but she denied the same. This Court is unable to accept the plea of the A8 on the following other reasons:
16.She also admitted that Bank Manager, A9 and A10 visited her house in order to grant loan. Considering the cumulative circumstances, this Court declines to accept contentions that she did not handover the loan documents namely death certificate and legal heir certificate to A12. A9 examined himself as D.W.4 and he specifically deposed that she only handed over the original document of the death certificate and legal heir certificate. Further, as per the agreement entered between herself and A9, the amount was transferred to A12. Therefore, all the accused, as rightly argued by the learned Special Public Prosecutor for CBI planned in execution of the conspiracy in not only getting the loan and also tried to escape from the legitimate prosecution by creating ambiguous defence about the death of Shri Paul.
45 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021
17. P.W.44 has also clearly deposed that A5 and A8 frequently assembled in the Madras Nila Office and had meeting. Ordinarily said times of the meeting is not material to constitute the conspiracy, but, their act of transmission of documents and the act of transfer of the amount from A1 to A2’s account and then to A12 account to discharge the debt amount of A8 which is said to have been given by A12 at the time of execution of the power of attorney upon receipt of the original documents, all cumulatively established their planned act of conspiracy to defraud the bank by submitting the forged death certificate of Shri Paul and legal heir certificate of Shri Paul to make believe the bank authorities to grant loan to A1 to A2 as if A8 have had good title to the secured asset.
18. The prosecution clearly proved the involvement of A11 officer in the entire conspiracy. The A8 in her evidence deposed that A9, A11 visited her house and made inspection and A11 also enquired about the loan particulars. After the grant of loan, A11 allowed A5 and A3 to withdraw the entire amount within a period of two days ie., 29.03.2007 and 30.03.2007. He allowed the withdrawal of the following amount as against the loan condition and therefore, siphoning of the amount and 46 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 diversion of the loan amount has been estashshed. The details of such transfer are as under:-
A-1 limt Rs.90 lacs (on 20.03.2007) A/c.No.725439035 Relati Sl. Cheq onshi Encashed Amoun Cheque No Date ue Favouring p with through Passed by t signed by . No. accus Bank ed Brothe 228,6 E.S.Ansar S.M.Naza r-in-
1 29.03.2007 50 lacs SBI Tenkasi G.Sridharan
02 Ali r (A-3) law of
A-5
Sheikh Friend
228,6 Indian Bank,
2 30.03.2007 9 lacs S.Syed Kani Mansur of A-3 Ayyamani & G.Sridharan
05 Tenkasi
(A-5) to A-8
Brothe
Sheikh
228,6 E.S.Abdul r in Indian Bank,
3 30.03.2007 9 lacs Mansur G.Sridharan
03 Kather law of Tenkasi
(A-5)
A-5
Sister
Ummal Sheikh of
228,6 Indian Bank,
4 30.03.2007 9 lacs Sahida Mansur mother G.Sridharan
04 Tenkasi
Begum (A-5) in law
of A-5
Sheikh Ayyamani &
228,6 W/o. Indian Bank,
5 30.03.2007 3.5 lacs S.Fathima Mansur
07 A-5 Tenkasi G.Sridharan
(A-5)
Sheikh W/o. Ayyamani &
228,6 Indian Bank,
6 30.03.2007 9 lacs S.Fathima Mansur
06 A-5 Tenkasi G.Sridharan
(A-5)
89.5
Total
lacs
A-2 limt Rs.40 lacs (on 20.03.2007) Bal-Rs.5.85 lacs Cr.-A/c.No.725441409 Sl . Cheque Cheque Relationship Date Amount Favouring Bank Passed by No. No. signed by with accused Sheikh Friend of A-3, ICICI, 1 29.03.2007 228,702 7.8lacs Haseena G.Sridharan Mansur (A-5) A-5 & A-8 Tenkasi Sabeena “ Sheikh Sister of A-3, ICICI, 2 29.03.2007 228,701 8.7 lacs G.Sridharan Sameena Mansur (A-5) A-5 and A-8 Tenkasi Sheikh Friend of A-3, ICICI, 3 29.03.2007 228,703 8.5 lacs A.Wahab G.Sridharan Mansur (A-5) A-5 & A-8 Tenkasi Indian Sheikh Friend of A-3 4 30.03.2007 228,705 5lacs Peer Mohd. Bank, G.Sridharan Mansur (A-5) to A-8 Tenkasi Sister of friend Indian S.Ragumal Sheikh 5 30.03.2007 228,706 4 lacs of A-3, A-5 & Bank, G.Sridharan Begum Mansur (A-5) A-8 Tenkasi 47 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Indian Sheikh Friend of A-3 6 30.03.2007 228,707 2.5 lacs S.Syed Kani Bank, G.Sridharan Mansur (A-5) to A-8 Tenkasi W/o. Indian Sheikh 7 30.03.2007 228,704 9 lacs S.Fathima Bank, G.Sridharan Mansur (A-5) A-5 Tenkasi Total 45.5 lacs
19. All the witnesses deposed that A5 and A3 received the entire amount from their account. Hence, the planned action of obtaining of loan by giving the security with imperfect title and withdrawing the entire amount within a period of two days which ought to have been allowed to withdraw periodically for purchasing the goods and thereby committed default in making the payment. Even though one of the witnesses has admitted that diversion of the fund amount is only irregular and not illegal, the prosecution produced the evidence to show that he not only allowed the diversion of the fund against the loan terms, he had participated in the entire fraudulent loan transaction and also he had not verified the title as per the further direction of the regional office before the disbursement of the loan. Apart from that, he also visited A8’s house with the company of A9. Therefore, his plea that he has no role in the above conspiracy and he only allowed A3 and A5 to withdraw the entire amount within a period of two days at the instruction of the higher 48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 officials cannot be accepted. To screen his act, he took the stand that he acted as per the direction of the regional office. The officer examined from the regional office denied the same.
20. A3 and A5’s case that they believed A9 and A9 is none other than one of the partners of the sister concern of the A1 and A2 and also have had good relationship for number of years in their business. Their argument cannot be accepted on the ground that A9 specifically deposed that he arranged to third party collateral security to A5 and he had not received any charges for the same for the reason being that he was a friend for the number of years.
21.The following answer furnished by the appellants during their examination under Section 313 of Cr.P.C., are also strengthened the prosecution case of obtainment of loan on the basis of the forged document and defraud of the bank amount:
nfs;tp: m/rh/1 jpU vd;/bka;ag;gd; nkYk; jkJ rhl;rpaj;jpy;. nkw;go flDf;fhf brd;id milahW gj;kehgd; efhpy; cs;s 8?k; vjphp Mh;j;jpghy; vd;gthpd; 49 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 brhj;J <lhf bgwg;gl;Ls;sjhft[k;. mtuJ jfg;gdhh; vk;/v!;/ghy; fhykhfp tpl;ljhf nghypahf ,wg;g[ rhd;wpjH; bgwg;gl;L. mtUf;F 8?k; vjphp kl;Lnk thhpR vd bgha;ahd thhpR rhd;wpjiH mspj;Js;sjhft[k; rhl;rpak; Twf;nfl;Onu ePh; vd;d brhy;fpwPh;> gjpy;: milahW tPL flDf;F <lhf bgw;wJ rhp/ Mdhy; nghyp ,wg;g[+thhpR rhd;W bfhLj;jJ vdf;F bjhpahJ/ nfs;tp: m/rh/3 jpU/Mh;/rp/ghyfpUc&;zd; jkJ rhl;rpaj;jpy;. to create EM and other bank formalities with regard to the property in Plot No.27, House No.25/13, S.F.No.57, 57/1, 13, 14 for Adayar Branch bra;tjw;fhf 22.03.2007 Mk; ehspl;l 8?k; vjphp m/rh/M/10 Consent letter bfhLj;jjhft[k; rhl;rpak; Twf;nfl;Onu ePh; vd;d brhy;fpwPh;> gjpy; :bjhpahJ/ bjd;fhrp fpis nyhd; mjpfhhpa[k; milahW t';fp mjpfhhpfSk; EM Vw;gLj;jpdh;/ nfs;tp: m/rh/4 jpU/vk;/gukrptk; jkJ rhl;rpaj;jpy;. 17/01/2007 md;W fpis nkyhsupd; ghpe;Jiu kw;Wk; 21/02/2007?k; ehspl;l further clarification?apd; nghpy; rh;f;fps; jiyikapdhy; ,e;jpad; t';fp. bjd;fhrp fpisapy; 2?k; vjphp epWtdj;jpw;F mDkjpf;fg;gl;l U:/40yl;rk; OCC limit Fwpj;J 25/02/2007?Mk; ehspl;l Sanction Ticket?ia jfty; mspj;jjhft[k;. terms and conditions cld; Toa Sanction Ticket m/rh/M/18(5jhs;fs;) vdt[k;. rhl;rpak; Twf;nfl;Onu ePh; vd;d brhy;fpwPh;> gjpy;: rhp 50 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 nfs;tp :m/rh/5 jpU/bcwg;rh; ucw;khd; nkYk; jkJ rhl;rpaj;jpy;. 1?k; vjphp epWtdj;jpdhy; tiuag;gl;l fPH;fz;l fhnrhiyfis fpis nkyhsuhd 11?k;
vjphpahy; pass bra;ag;gl;Ls;sjhft[k;.
thp ehs; fhnrh bjhif vth; bgahpy; m/rh/M/
ir iy
vz; vz;
1 29/03/200 228602 50.00.000 ,/v!;/md;rhh;my; m/rh/M/2
7 -? yp 0
2 30/03/200 228603 9.00.000-? ,/v!;/mg;Jy; m/rh/M/2
7 fhjh; 1
3 30/03/200 228604 9.00.000-? ck;khs; rfpjh m/rh/M/2
7 ngfk; 2
4 30/03/200 228605 9.00.000-? iraj; fdp m/rh/M/2
7 3
5 30/03/200 228606 9.00.000-? v!;/ghj;jpkh m/rh/M/2
7 4
6 30/03/200 228607 3.50.000-? v!;/ghj;jpkh m/rh/M/2
7 5
1?k; vjphp epWtdj;jpd; fzf;F vz;/725439035?apd; 20/03/2007 Kjy; 19/03/2008 fhyj;jpw;fhd Statement of A/c m/rh/M/26 (9jhs;fs;) vdt[k;. mjpy; nkw;brhd;d m/rh/M/20 Kjy; m/rh/M/25 fhnrhiyfs; gw;wpa debit fhzg;gLtjhft[k; rhl;rpak; Twf;nfl;Onu ePh; vd;d brhy;fpwPh;> gjpy;: tpahghuj;jpw;fhf vd epWtdk; Twpajhy; pass bra;njd;/ nfs;tp:m/rh/5 jpU/bcwg;rh; ucw;khd; nkYk; jkJ rhl;rpaj;jpy;. 2?k; vjphp epWtdj;jpdhy; tiuag;gl;l fPH;fz;l fhnrhiyfis fpis nkyhsuhd 11?k;
vjphpahy; pass bra;ag;gl;Ls;sjhft[k;.
51
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm )
CRL.A(MD).Nos.436, 439 and 457 of 2021
thp ehs; fhnrh bjhif vth; bgahpy; m/rh/M/
ir iy
vz; vz;
1 29/03/2007 228701 8.70.000- rngdh m/rh/M/27
?
2 29/03/2007 228702 7.80.000- cwc&Pdh m/rh/M/28
?
3 29/03/2007 228703 8.50.000- mg;Jy; m/rh/M/29
? tcwhg;
4 30/03/2007 228704 9.00.000- ghj;jpkh m/rh/M/30
? nc&f;
5 30/03/2007 228705 5.00.000- gPh; KfkJ m/rh/M/31
?
6 30/03/2007 228706 4.00.000- ucw%khy; m/rh/M/32
? ngfk;
7 30/03/2007 228707 2.50.000- iraj; fdp m/rh/M/33
?
2?k; vjphp epWtdj;jpd; fzf;F vz;/725441409?apd;
20/03/2007 Kjy; 31/03/2008 fhyj;jpw;fhd Statement of A/c m/rh/M/34 (8jhs;fs;) vdt[k;. mjpy; nkw;brhd;d m/rh/M/27 Kjy; m/rh/M/33 fhnrhiyfs; gw;wpa debit fhzg;gLtjhft[k; rhl;rpak; Twf;nfl;Onu ePh; vd;d brhy;fpwPh;> gjpy;: epWtd';fs; tpahghuj;jpw;fhf vd;W Twpajhy; pass bra;njd;/ nfs;tp: m/rh/6 jpU/vk;/bre;jpy;Fkud; nkYk; jkJ rhl;rpaj;jpy;. 1?k; vjphp epWtdj;jpd; m/rh/M/26 fzf;F gl;oaypd; gpufhuk; 29/03/2007. 30/03/2007 njjpfspy; m';ff P hpf;fg;gl;l fldhd U:/90.00.000-? ypUe;J. U:/89.85.000-?I vLj;J jdp egUf;Ff; bfhLf;fg;gl;Ls;sjhft[k;. 2?k; vjphp epWtdj;jpd; m/rh/M/34 fzf;F gl;oaypd; gpufhuk; 29/03/2007. 30/03/2007 njjpfspy; m';fPfhpf;fg;gl;l fldhd 52 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 U:/40.00.000-?ypUe;J U:/39.76.000-?I vLj;J jdp egUf;Ff; bfhLf;fg;gl;Ls;sjhft[k; rhl;rpak; Twf;nfl;Onu ePh; vd;d brhy;fpwPh;> gjpy;: jtW. tpahghuj;jpw;fhf bfhLf;fg;gl;lJ/ 21.2. A3, A5 after obtaining the loan of Rs.1,30,00,000/- they withdrawn the same within a period of two days as against the loan condition by issuing the cheques in the name of his relative and re-
transferred the same to him and failed to repay the amount and these circumstances clearly proved the charge framed against them. Apart from that as already discussed above they have actively participated in entire loan transaction with the company of A8 and A11. Therefore, in all aspects prosecution has clearly proved the case against the appellants and hence, they are not entitled to acquittal.
22. Lapse on the part of the investigating agency and the prosecution agency in not examining L.W.37 is immaterial in this case when the other witnesses were examined to prove the execution of the power of attorney in favour of A12 by A8. According to the prosecution, A8 was in dire need of money and hence, L.W.37 introduced A12. A8 53 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 executed power of attorney in favour of A12 to obtain loan. She also handed over the original documents. For which, A12 handed over the cash of Rs.1,30,00,000/-. To prove the execution of power of attorney, investigating agency examined two witnesses, namely, L.W.37 and P.W. 50(Ponnambalam). The prosecution agency examined P.W.50 and dispensed with L.W.37. It was open to A8 to examine L.W.37 as a defence witness if he had made the statement in favour of her. The Prevention of Corruption Act contains special provision to examine the defence witness. Therefore, the non-examination of L.W.37, cannot be put against the prosecution agency when the available evidence clearly established the factum of execution of the power of attorney and the other transaction entered by A8 with remaining accused.
23. The lapse on the part of the investigating agency is not material when collected evidence is sufficient to convict the accused.
24.The acquittal of the A9, A10, A11, had no impediment to consider the available materials to convict the appellants. This Court in the appeal filed by them in Crl.A.(MD).Nos.446, 449 and 460 of 2021 has 54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 specifically held that they have no role either in the submission of the loan application with forged document or execution of the mortgage by deposit of title deeds by A8 in favour of the bank with forged document. Therefore, as held by the Hon’ble Three Judges Bench of the Supreme Court in the case of Achhar Singh v. State of H.P. reported in 2021 (5) SCC 543 wherein it has reiterated the principle that even though some of the accused were acquitted, the Court is not debarred from rendering conviction on the available material leading to the conclusion of the conviction in the following terms:
26. The learned State counsel has rightly relied on Gangadhar Behera [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 : 2003 SCC (Cri) 32] to contend that even in cases where a major portion of the evidence is found deficient, if the residue is sufficient to prove the guilt of the accused, conviction can be based on it. This Court in Hari Chand v. State of Delhi [Hari Chand v. State of Delhi, (1996) 9 SCC 112 : 1996 SCC (Cri) 950] held that : (Hari Chand case [Hari Chand v. State of Delhi, (1996) 9 SCC 112 : 1996 SCC (Cri) 950] , SCC pp. 124-25, para 24) “24. … So far as this contention is concerned it must be kept in view that while appreciating the evidence of witnesses in a criminal trial especially in a case of eyewitnesses the maxim falsus in uno, falsus in omnibus cannot apply and the Court has to make 55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the Court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon.” (emphasis supplied)
25. The learned Senior Counsel for A8 submitted that A9 made the forgery of the document and hence, she made a complaint immediately after receiving the notice under Section 13(2) of SARFASEI Act. Therefore, CBI has not followed the procedure stated under Section 210 of the Cr.P.C., The said submission of the learned Senior counsel cannot be accepted on the ground that no case was registered on the basis of her complaint. There was no action taken on the basis of her complaint. She has not initiated any action to register the case. Without any registration of the case with counter allegation, Section 210 of Cr.P.C., cannot come into operation.
56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021
26. Contradictions relating to custody of documents with advocates who gave opinion are immaterial when the abundant evidence available on records as discussed above with regard to commission of offence of forgery of the death certificate and legal heir certificate. When she actually participated in the execution of power of attorney. Memorandum of deposit of title, submission of registration to transfer the electricity connection in her name, her suspicious about preparation of said forged, death certificate, legal heir certificate in the office of panal advocate of bance no legs to stand. Similarly execution of MOU at Chennai and obtained signature at Tenkasi on the same day is immaterial while the prosecution case is not that the same was obtained on the same day. When A8 took stand about his father's death contrary to the registered document to save her, her suspicious on each circumstance can be said to have been found out by her to save her skin. Therefore this court declines to accept the same.
57 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021
27.Conclusion :-
The prosecution has clearly established that A8 gave the forged death certificate and legal heir certificate as if she was the only legal heir to her father and furnished her father's property as a security for A1 to A5 to obtain the loan with undertaking to receive portion of the said loan amount and A1 to A5 obtained the loan with active connivance of the A11 bank manager and A1 to A5 also siphoned off the loan amount and diverted the said amount as against the loan terms and thereby defrauded the bank amount of Rs.1,30,00,000/-. It is a classical bank fraud case where the accused not only conspired to commit the offence but also continue the said conspiracy to escape from the legal punishment by taking the planned two diametrically opposite stand relating to the death of the A8’s father. A8 took the stand as her father was alive and A1 to A5 took a stand that the prosecution did not prove that the A8’s father is alive. A8 deposed to the extent in order to save her skin that she never applied her mind to the contents of the documents when she admittedly conversed only with English language and she also completed her Montessori course for children. Apart from that she also took a stand that the advocate office 58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 committed the forgery is without any evidence. Therefore in all aspects, the prosecution clearly proved the case against the appellants. The acquittal judgment against the remaining accused has no bearing in this case when the prosecution clearly established the case against the appellants herein. Therefore this Court declines to accept the argument of the learned counsel appearing for the appellant that the prosecution has not proved the case beyond reasonable doubt. This Court concurs with finding of the learned trial judge in convicting the appellants. Accordingly, this Court confirms the conviction passed against the appellants in C.C.No. 8 of 2011.
28. Question of sentence :-
A8 and A1, A2, A3, A5 were in need of money. A8 in order to develop her school, she needed money. A1, A2, A3, A5 in order to develop their business needed money. Immediately, after receipt of the notice under the SARFAESI Act, entire loan amount was settled. A1, A2, A3, A5 are the long standing customers of the bank. Even though, they withdrew the amount and diverted this particular loan amount, they were keeping the account with sufficient funds. Apart from that the bank officials also 59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 deposed that they are good customers and have been continuing the account for past number of years without any allegation. Similarly A8 is a lady and she also has no antecedents. As observed earlier, entire loan amount was settled before registration of the case and her share in the property is sufficient to discharge debt. Therefore, appellants in both appeals in 457 & 439 of 2021 are deserved to reduction of sentence of imprisonment. In view of the above mitigating circumstances, this Court inclines to reduce the sentence of the imprisonment imposed by the Court below into sentence which was already undergone.
28.1. So far the sentence of imprisonment imposed against A11 manager is concerned, this Court is duty bound to follow a different yardstick. On the basis of independant charge under section 13(2) r/w 13(1)(d) of P.C. Act, 1988 and conviction and sentence to undergo Rigorous Imprisonment for one year this court has no option except to confirm sentence imposed by trial court.
29. Accordingly the Crl.A.(MD) No. 436 and 439 of 2021 is partly allowed in the following terms:
29.1. Conviction passed against the appellant in C.C.No. 8 of 2011 on the file of the Learned II Additional District Judge, for CBI Cases, 60 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 Madurai dated 27.09.2021 is confirmed.
29.2. The sentence of imprisonment passed against the appellant is reduced to the period already undergone by him.
30. Accordingly the Crl.A.(MD) No. 457 of 2021 is dismissed confirming the conviction and sentence imposed in C.C.No. 8 of 2011 on the file of the Learned II Additional District Judge, for CBI Cases, Madurai dated 27.09.2021 is confirmed.
30.1. All the Sentence of imprisonment shall run concurrently. The period already undergone by the appellant shall be set off against the terms of imprisonment awarded to him under Section 428 of Cr.P.C.
30.2. The bail bond executed by the appellant is hereby cancelled and the learned trial judge is directed to secure the accused to undergo the remaining part of sentence of imprisonment.
04.03.2025 NCC : Yes/No Index : Yes / No Internet : Yes / No sbn 61 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 To
1. The II Additional District Judge for CBI Cases, Madurai District.
2. The Deputy Superintendent of Police, CBI/EOW, Chennai.
3. The Special Public Prosecutor for CBI Cases, Madurai Bench of Madras High Court, Madurai.
4. The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.
62 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm ) CRL.A(MD).Nos.436, 439 and 457 of 2021 K.K.RAMAKRISHNAN,J.
sbn CRL.A(MD).Nos.436, 439 and 457 of 2021 04.03.2025 63 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:48:47 pm )