Karnataka High Court
Sri M Ranganathan vs State Of Karnataka on 31 May, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.419/2013
BETWEEN:
SRI M. RANGANATHAN
AGED ABOUT 75 YEARS,
S/O. LATE MUNISWAMY
R/A NO.365, 2ND CROSS,
SUBBAIANAPALYA, BANASWADI,
BENGALURU-40. ... PETITIONER
(BY SRI M.K.GIRISHA, AMICUS CURIAE)
AND:
STATE OF KARNATAKA
COMMERCIAL STREET POLICE STATION,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU-560 001. ... RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED:31.01.2013 PASSED
BY THE PRESIDING OFFICER, FTC-X, BENGALURU CITY
DISMISSING THE CRIMINAL APPEAL NO.656/2010 FILED BY THE
PETITIONER, THEREBY CONFIRMING THE JUDGMENT AND
ORDER DATED:28.07.2010 PASSED IN C.C.NO.2908/2001 BY
THE 1ST ACMM, BENGALURU AND CONSEQUENTLY ACQUIT THE
PETITIONER.
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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 19.04.2022 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
This revision petition is filed praying this Court to set aside the judgment and order dated 31.01.2013 passed by the Additional Sessions Judge, FTC-X dismissing the Crl.A.No.656/2010 confirming the judgment and order dated 28.07.2010 passed in C.C.No.2908/2001 and consequently, acquit the petitioner.
2. The factual matrix of the case of the prosecution before the Trial Court is that this petitioner being the Proprietor of M/s. Val Exports, shared the common intention with the accused No.2 and raised a loan of Rs.15 lakhs from the Indian Overseas Bank and loan was sanctioned and offered collateral security of accused No.2 by creating a false and forged documents in respect of Site No.314 situated at 4th Stage, Sarakki Dollar Scheme by impersonating one A.L. Shivappa, who is the absolute owner of the said property. The accused by using the said forged documents, knowing fully well that they are 3 forged one have availed loan. Thus, cheated the complainant- bank. Hence, P.W.1 had lodged the complaint in terms of Ex.P1 and case was initially registered in Crime No.390/1999 of Commercial Street Police Station and thereafter, investigation was transferred to CCB and Police Inspector, CCB after having conducted detailed investigation has filed the charge sheet. The petitioner herein was secured and enlarged on bail and accused No.2 has absconded and hence, split up case was registered against him. This petitioner did not plead guilty and claimed for trial. Hence, the prosecution examined P.Ws.1 to 3 and got marked the documents as Exs.P1 to P23 and recorded the statement of the petitioner under Section 313 of Cr.P.C. and thereafter, he did not choose to lead any defence evidence.
3. The Trial Court, after considering both oral and documentary evidence placed on record, convicted the accused for the charges leveled against him. Hence, the appeal was filed in Crl.A.No.656/2010 and the Appellate Court also, on re- appreciation of both oral and documentary evidence placed on record, dismissed the appeal and confirmed the judgment and 4 sentence of the Trial Court. Hence, the present revision petition is filed before this Court.
4. The revision petitioner is the accused No.1 and accused No.2 has absconded and hence, split up case was registered against him. The learned counsel for the petitioner would submit that this petitioner was the Proprietor and he had availed the loan from the Indian Overseas Bank for which the petitioner subsequently offered collateral security and the same was accepted. The P.W.1-complainant had lodged the complaint making an allegation that this petitioner and accused No.2 indulged in offering forged documents as collateral security and indulged in dubious act of impersonation. Hence, P.W.1 gave the complaint and the police have registered the case and thereafter, matter was referred to CCB and after filing of charge sheet, the prosecution examined only P.Ws.1 to 3 i.e., the witnesses of the bank officials and Investigating Officer was not examined and in order to prove the forgery also, no witnesses were examined. He would further that the evidence of P.Ws.1 to 3 not inspires the confidence of the Court for conviction of the 5 petitioner herein. The P.W.1 was not having any personal knowledge of the availment of the loan and execution of the documents. The counsel would also submit that evidence of the handwriting expert regarding forgery is not placed before the Court and no witnesses were examined and only relied upon the evidence of bank officials and not made out any case for proving the charges leveled against the petitioner.
5. Per contra, learned High Court Government Pleader appearing for the respondent-State would submit that the bank officials, who have been examined as P.Ws.1 and 2 have categorically deposed regarding the act of accused No.1. P.W.2 deposed in his evidence with regard to the fact that this petitioner and accused No.2 have signed the document of Ex.P20, under which the collateral security was offered and the same has not been disputed. The entire loan transaction as well as offering the collateral security has not been disputed. Hence, there was no need of proving the forgery when the documents have not been disputed and nothing is elicited in the cross- examination of witnesses regarding forgery and offering the 6 documents not belonging to the accused No.2 and they have indulged in fabricating the documents in respect of site belonging to one Shivappa and both the Courts have taken note of the material on record and it does not require any interference of this Court.
6. In reply to the arguments of the learned High Court Government Pleader appearing for the respondent-State, learned counsel for the petitioner would submit that the witness P.W.2 speaks only with regard to the fact that he had verified the records and came to know that no site was allotted in favour of Shivappa and forgery has not been proved. The learned counsel would submit that the petitioner was aged about 75 years, while filing the revision petition and it is the case of the year 2001 and Court has to take note of this aspect and prays this Court to set aside the order of conviction and sentence.
7. Having heard the respective counsel and also on perusal of the material on record, the points that would arise for consideration of this Court are:
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(1) Whether the Trial Court has committed an error in convicting the petitioner and whether the Appellate Court committed an error in confirming the judgment of the Trial Court and whether it requires interference of this Court in exercising revisional jurisdiction?
(2) What order?
Point No.(1)
8. Having heard the respective counsel and also on perusal of the material on record, this Court has to analyze whether this Court can exercise the revisional jurisdiction. On perusal of the entire material on record, including the oral evidence of P.Ws.1 to 3 and documentary evidence, first of all, the petitioner has not disputed the fact that he had approached the Indian Overseas Bank for availing loan and he also not dispute the sanction of loan and disbursement of the amount. It is the case of P.W.1 that when this petitioner committed default in repayment of loan amount, verified the records and also the address of the parties and came to know that accused No.2 is not residing in the address which is furnished to the bank. It is also the case of the prosecution that, earlier, loan was availed by 8 accused No.1 and subsequently, collateral security was replaced by accused Nos.1 and 2 and accused No.2 stood as guarantor and offered collateral security. The loan was granted in the year 1997 and the dubious act of this petitioner and accused No.2 came to the light in the year 1999 when the petitioner did not repay the loan amount. Hence, P.W.1 had lodged the complaint. P.W.1 was also examined before the Court and he categorically says that, when he assumed charge as Branch Manager, he found that loan account of the accused was irregular. Therefore, he started to issue reminders and register notice to accused and his son. The notice issued to accused Shivappa was not returned. When I sent the official to enquire about the said Shivappa, found that said Shivappa was not there in the address given to the bank and then got doubts and suspicions regarding the loan transactions. On verification, came to know about the act of this petitioner and other accused.
9. It is also the evidence of P.W.1 that later they enquired with BDA and they informed that no such site was allotted to the person on that day. It is also his evidence that, 9 then they went to Sub-Registrar Office, Kengeri and obtained registered certified copy of the lease-cum-sale by the BDA. On verification of the document, came to know that it was registered in the name of another person by name Shivappa, who was an Ex-MLA. The documents were misdated compared to the original in respect of that particular site and then came to know that documents are fabricated and lodged the complaint in terms of Ex.P1. The P.W.1 has also spoken in detail with regard to the other documents marked as Exs.P1 to P20. This witness was cross-examined and he admitted in the cross-examination that he has no personal knowledge about the loan transaction between the accused and Indian Overseas Bank and about the transaction. He also admits that documents were not signed before him and only on perusal of the documents on record, he came to know that there is a forgery.
10. The prosecution also relied upon the evidence of P.W.2 and he speaks that this petitioner had approached the bank for packing credit loan for Rs.15 lakhs and the accused offered sale deed of Site No.314 of Sarakki Layout as a collateral 10 security said to be standing in the name of said Shivappa and all the documents are signed in his presence. He also states that the document Ex.P22 which is already marked was signed by said Shivappa in his presence. He also further states that Guarantee for cash credit loan by Shivappa as a guarantor was already marked as Ex.P23. He also says that during the investigation, he identified the accused and gave statement before the CBI Police. He was also subjected to cross- examination. He admits in the cross-examination that he does not have personal knowledge about those who have signed the loan papers pertaining to this case. It is also elicited that it may be true that in his chief examination, he has deposed to the effect that he identified the accused during the investigation.
11. The other witness is Officer and on Special Duty in Income Tax Department and his evidence is that he was working as Deputy Secretary, BDA from September, 1997 to September, 2000 and they have received a letter from Indian Overseas Bank and in response to the said letter, on verification of records, it is seen that site was not at all allotted to any person from BDA and 11 there was no allotment of said site in the name of Shivappa and there was no lease-cum-agreement for sale and no other documents are executed. Hence, he gave the opinion that the documents furnished to the bank in respect of the said site are all fabricated documents and the said letter is also marked as Ex.P13. This witness was not cross-examined.
12. Having considered both oral and documentary evidence placed on record, it is not in dispute that this petitioner had availed the loan from the bank and also not disputes the very execution of the documents. It is the main contention of the complainant-bank that collateral security was replaced by offering collateral security of accused No.2 and to that effect, Ex.P20 is marked for having given letter to the bank.
13. It has to be noted that the main case revolves upon the document Ex.P20, in terms of which the petitioner has given an application to the bank for change of collateral security and the same has not been disputed during the cross-examination of P.Ws.1 and 2. No doubt, P.W.1 was not present at the time of the loan transaction, P.W.2 has been examined and he 12 categorically says that this petitioner and accused No.2 have executed the documents in his presence. The same has not been disputed in the cross-examination and also not disputed the very execution of the documents which are marked by the prosecution before the Trial Court. No doubt, I have already pointed out that P.W.1 was not having personal knowledge, P.W.2 categorically says with regard to execution of the document by this petitioner and accused No.2. The very contention that the evidence of these two witnesses not inspires the confidence of the Court cannot be accepted for the reason that regarding availment of loan and execution of the document, nothing is elicited.
14. With regard to the other contention that expert has not been examined regarding forgery is concerned, first of all, when the documents are not disputed during the cross- examination of P.Ws.1 and 2 that no such documents are executed, there is no need to examine the expert witness. It is also important to note that P.Ws.1 and 2 are the bank officials. I have already pointed out that P.W.2 is the material witness 13 since, during his tenure only the loan was availed and documents are executed. But, P.W.1 speaks with regard to the fact that, when he came to know about the fact that loan account was not in order, he made all efforts and then came to know about the dubious act of this petitioner and accused No.2.
15. It is also important to note that, it is the case of the prosecution that the accused Nos.1 and 2 have indulged in impersonation and documents pertaining to Site No.314 belonging to one Ex. MLA Shivappa was forged and the same was offered as collateral security. P.W.3 also categorically says that, on verification of the records, it is seen that, no such allotment was made in favour of said Shivappa. It is also the evidence of P.W.1 that, on verification, they obtained the certified copy from the Sub-Registrar office and it was found that the site was allotted in favour of Ex-MLA one Shivappa and the said Shivappa has not offered any collateral security before the bank and accused Nos.1 and 2 had indulged in forging the documents and offered the same as collateral security in respect 14 of the said site by impersonation and no cross-examination was done in respect of the evidence of P.W.3
16. When such being the case, there was no any need for even examining the Investigating Officer and the evidence of P.Ws.1 to 3 is consistent and the Investigating Officer himself recorded the statement of witnesses, collected the documents and filed the charge sheet. Non-examination of the Investigating Officer as well as expert witness is not fatal to the case of the prosecution, since the very execution of the documents in favour of the bank has not been disputed by the petitioner.
17. Learned High Court Government Pleader appearing for the respondent-State also brought to the notice of this Court that P.Ws.1 and 2 have spoken with regard to the execution of document and P.W.3 also categorically says that no such property was allotted and the said property has been offered as collateral security. Hence, the Court has to take note of the gravity of the offence and the material on record and the quality of evidence matters and not the quantity of evidence, since the petitioner has not disputed the very execution of documents as 15 well as the loan transaction. Hence, I do not find any error committed by the Trial Court as well as the Appellate Court.
18. The Trial Court also, while considering the material on record, taken note of the oral evidence and also the documentary evidence and in detail discussed the same and considered the evidence of P.W.1 in para No.8 and also taken note of the contents of Ex.P1-complaint and also taken note of the execution of the loan documents in para No.9. The Trial Court also discussed the cross-examination of P.W.1 in para No.11 and so also the evidence of P.W.2 in para No.12 and also taken note of no cross-examination of witness P.W.3 in para No.13. The Trial Court, in para No.14 taking note of the evidence of P.Ws.1 to 3 and the documentary evidence Exs.P1 to P23, rightly comes to the conclusion that the material placed by the prosecution substantiates the charges leveled against the petitioner herein. The Trial Court also, taken note of non- examination of Investigating Officer and independent witnesses in para No.15 and rightly comes to the conclusion that the 16 evidence of P.Ws.1 to 3 is more cogent and trustworthy of acceptance.
19. The Appellate Court also, on re-appreciation of both oral and documentary evidence placed on record, taken note of the evidence and the documents Ex.P1 to P20 in para No.14 and in para No.15, discussed with regard to the admissibility of evidence of P.W.1 and also taken note of the evidence given by P.W.1 on the basis of the documents. The Appellate Court also, in para No.17 discussed with regard to evidence of P.W.2, particularly with the regard to the fact that the petitioner approaching the bank for availing the loan and taken note of the evidence of P.W.2, in whose presence, the documents were executed and also taken note of evidence of P.W.3 in para No.18 and over all considered the grounds urged in the appeal and discussed the same in para Nos.19, 20 and 21 and comes to the conclusion that, non-examination of independent witnesses and Investigating Officer and not taking the handwriting expert's opinion is not fatal to the case of the prosecution and it does not 17 take way the whole case of the prosecution and dismissed the appeal.
20. Having considered the findings of the Trial Court as well as the Appellate Court, the contention that evidence of the witnesses P.Ws.1 to 3 do not inspire the confidence of the Court as contended by the learned counsel for the petitioner cannot be accepted and there is no force in the said contention since, nothing is elicited in the cross-examination of P.Ws.1 to 3 to disbelieve the case of the prosecution.
21. I have already pointed out that though P.W.1 is not having personal knowledge about the availment of loan and execution of document, the prosecution however examined P.W.2, in whose presence the document was executed and loan was availed. When the document itself is not disputed during the course of the cross-examination, the very contention that expert has not been examined cannot be accepted. Even non- examination of Investigating Officer is also not fatal to the case of the prosecution and the evidence of Investigating Officer is only with regard to collecting of the material and however, the 18 case mainly rests upon the documentary evidence. Apart from that, the evidence of the witnesses P.Ws.1 to 3 is consistent and the finding is given by the Trial Court as well as the Appellate Court mainly relying upon the documentary evidence. Hence, the contention that the evidence of P.Ws.1 to 3 do not inspire the confidence of the Court and the very contention that the Trial Court has only relied upon the evidence of bank officials cannot be accepted for the reason that it is a transaction between the bank official and this petitioner. It is not in dispute that P.Ws.1 and 2 are the material witnesses regarding availment of the loan, execution of documents and non-repayment of the loan and P.W.1 himself noticed the dubious act of this petitioner as well as the accused No.2 in offering forged documents as collateral security, even though the property not belongs to accused No.2.
22. When such being the factual aspects of the case, I do not find any merit in the revision petition to exercise revisional jurisdiction. The revisional jurisdiction can be exercised only if the findings of the Trial Court as well as the 19 Appellate Court are perverse and not considered the cogent evidence on record and the same is not warranted in the case on hand. Hence, it is not a fit case to exercise the revisional jurisdiction. Accordingly, I answer point No.(1) as 'negative'.
23. Now regarding the sentence is concerned, learned counsel for the petitioner would vehemently contend that this petitioner was aged about 75 years, while filing the revision petition. On perusal of the records, it is seen that, when the case was registered in the year 2001, he was aged about 63 years and now, almost 20 years have elapsed. But, the fact is that, an offence of fraud and forgery has been committed by the petitioner by offering forged documents as collateral security, in order to commit fraud on the bank. The loan availed is to the tune of Rs.15 lakhs and the same is a public money and this petitioner and other accused had indulged in offering forged documents as collateral security with an intention to defraud the bank. When such being the case, I do not find any error committed by the Trial Court as well as the Appellate Court in imposing substantive sentence of simple imprisonment for a 20 period of one year and the same is also not harsh and the fine imposed is not an exorbitant fine. Hence, it does not require any interference of this Court with regard to the sentence part is also concerned.
Point No.(2)
24. In view of the discussions made above, I pass the following:
ORDER The criminal revision petition is dismissed.
Sd/-
JUDGE ST