Karnataka High Court
P C Manjunath vs State Of Karnataka on 13 November, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.1243/2010
BETWEEN:
1. P.C. MANJUNATH,
S/O CHANDRAPPA,
MAJOR,
R/O No.670/2,
KADAPPANAKANA HONDDA ROAD,
DAVANGERE.
2. SMT. GOWRAMMA,
W/O P.C. MANJUNATH,
MAJOR,
R/O No.670/2,
KADAPPANAKANA HONDDA ROAD,
DAVANGERE.
3. SMT. M.P. SAVITHRI,
D/O P.C. MANJUNATH,
MAJOR,
R/O No.670/2,
KADAPPANAKANA HONDDA ROAD,
DAVANGERE.
4. SRI PRAKASH JADAV,
S/O KRISHNOJI RAO,
MAJOR,
R/O No.1466, ANJENAYA BADAVANE,
1ST CROSS, DAVANAGERE. ... APPELLANTS
(BY SRI SANDESG J. CHOUTA, ADVOCATE)
2
AND:
STATE OF KARNATAKA,
INSPECTOR OF POLICE,
CBI, ACB,
BANGALORE. ... RESPONDENT
(BY SRI P. PRASANNA KUMAR, SPECIAL COUNSEL)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED
5.10.2010 PASSED BY THE XXXII ADDITIONAL CITY CIVIL AND
S.J. AND SPECIAL JUDGE FOR CBI CASES, BANGALORE IN
SPL.C.C.NO.11/2008 CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 120B READ
WITH 420, 468, 471, 477A OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by accused Nos.2 to 5 questioning the judgment of conviction and sentence dated 05.10.2010 passed in Spl.C.C.No.11/2008 on the file of the XXXII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore (CCH-34).
The brief facts of the case:
2. The complainant State registered a case against accused No.1, who was the Branch Manager of UCO Bank, Davangere and accused Nos.2 to 5 who are the beneficiaries of the loan which they availed from the Bank. The charge is that 3 accused No.1 who was working as Bank Manager in UCO Bank between 05.05.2002 to 12.08.2004 entered into criminal conspiracy with accused Nos.2 to 5 and caused loss to the Bank by illegal acts of forging the documents, making use of forged documents as genuine, falsifying the account, forging the promissory note, letter of waiver, profit and loss account of M/s.
Manjunath Electronics for the period from 31.03.2002 to 31.03.2004. They also forged the quotation with an intention to cheat the bank. In furtherance of the criminal conspiracy by forging the documents, accused Nos.2 to 5 have availed the loan and they were in balance of Rs.17,99,878/-.
3. The accused persons were secured and they did not plead guilty. Hence, the prosecution examined P.Ws.1 to 8 and relied upon the documents at Exs.P.1 to 113. The accused have not led any defence evidence. The Trial Judge after considering both oral and documentary evidence placed on record, convicted all the accused persons. Hence, the present appeal by accused Nos.2 to 5.
4. The learned counsel for the appellants would submit that during the pendency of this appeal, accused No.5/appellant 4 No.4 passed away. In support of the same, death certificate is produced which shows that he passed away on 23.02.2019. Hence, the case is abated against accused No.5/appellant No.4.
5. Now consideration of the appeal is by accused Nos.2 to 4. Learned counsel for the appellants/accused Nos.2 to 4 would submit that FIR was registered against number of persons and after the investigation, accused Nos.2 to 4 were arrayed in the FIR and no charge-sheet is filed. Accused No.5 who was arrayed in FIR was arrayed as accused No.2 in the charge-sheet and his wife and daughter were arrayed as accused Nos.3 and 4. The learned counsel would submit that the case of the prosecution is that the value of the property are inflated and accused No.1 who was serving as a Bank Manager in between 2002 to 2004 colluding with accused Nos.2 to 5 has advanced the loan amount and they indulged in committing the offence of forgery, fabrication of the documents and made use of the forged documents as genuine documents.
6. The prosecution examined P.W.1 who is the Retired Income Tax Officer and in his evidence he has deposed with regard to IT returns of accused No.3. P.W.2 - Assistant Manager 5 of UCO Bank has deposed that he was working from 2002 to 2004. For availing the loan one has to approach the District Industrial Centre and he was one of the member of the Block Level Committee. He has processed the application of accused No.4 and the same was in order.
7. P.W.3 - Consulting Engineer in his evidence has deposed that he has submitted the valuation report to the UCO Bank and the property standing in the name of P.C.Ramalingamma was valued at Rs.92,000/-. The property of Basavaraj Yeresime was valued at Rs.18,000/- in terms of Ex.P.10. In the cross-examination he admits that he did not verify the valuation report which was given earlier and without looking into the earlier report, he has given the report. Though, he says that he has adopted the land and building method in arriving at the valuation, in report Ex.P.9 he has not stated that the land and building method was adopted in arriving at the value of the property. Hence, the evidence of P.W.3 cannot be accepted.
8. P.W.4 who is the CTO in his evidence says that in the year 2006, Shivakumar had asked him to furnish the particulars 6 regarding registration of the business institutions in the name of accused No.2. He verified the register and submitted his report regarding the business of accused No.2 and on verification, he did not find the business institutions of accused No.2. This witness was not subjected to cross-examination. The learned counsel would submit that though he claims that he has filed the report, the said report is not placed before the Trial Court.
9. The learned counsel submits that P.W.5 who was working as Deputy Chief Officer in UCO Bank from 2004 to 2007 in his evidence says that accused Nos.2 to 4 availed the loan from their Bank and the account extract is Ex.P.11, in respect of Rushab Enterprises, the statement is Ex.P.12, in respect of New Ganesh Industries, statement of account is Ex.P.13, in respect of accused No.4, the statement is Ex.P.14 and in respect of accused No.3, the statement is Ex.P.17. Through this witness, the documents are marked and the only evidence of this witness is that valuation report submitted by Kumar Constructions which is marked as Exs.P.43, 44 and 45 discloses that higher valuation was given. The learned counsel would submit that those persons have not been examined to prove Exs.P.43 to 46. 7
10. The learned counsel also brought to my notice the evidence of P.W.6, who is the Manager of Sri Shaila Credit Co- operative Society. This witness is examined with regard to accused No.3 having account in the Credit Co-operative Society. The evidence of P.W.6 is not helpful to the prosecution.
11. P.W.7 is the Zonal Manager of the UCO Bank and he speaks with regard to sanctioning of the loan in respect of accused Nos.2 to 4. The applications given by accused Nos.2 to 4 were not completely filled up and creation of equitable mortgage was also not proper. Accused No.1 was sanctioned the loan and he has prepared the report and submitted to the Zonal Officer. He was subjected to cross-examination by learned counsel for accused Nos.2 to 5. In the cross-examination, he admits that he has not received any complaint against the accused. The irregularities in the loan were basis for his inspection. It is elicited that in his report, he has stated regarding nature of irregularities. He also admits that it is the normal practice that loans shall not be granted on incomplete documents and if the loans are sanctioned without there being any applications, Manager is responsible.
8
12. P.W.8 is the Investigating Officer and through this witness, number of documents are marked. In his evidence he says that he has collected the documents from UCO Bank and also taken the specimen signatures of accused Nos.2 to 4 and sent the same to GEQD Hyderabad for comparison and examination. He also received the opinion from GEQD. The said opinion is marked as Ex.P.113. He was subjected to cross- examination. In the cross-examination, it is suggested that accused No.1 alone committed the irregularities, and the said suggestion was denied. He says that accused Nos.2 to 5 have been falsely roped in the case.
13. The learned counsel for the appellants referring both oral and documentary evidence would submit that the prosecution has failed to bring the accused persons for the offences alleged against them. None of the witnesses have spoken with regard to the involvement of these appellants with regard to conspiracy and also indulging in fabrication of the documents and there is no evidence before the Court.
14. Per contra, the learned Special Counsel appearing for the State brought to the notice of this Court evidence of P.W.4. 9 P.W.4 - CTO in his evidence has categorically deposed that on verification of the register, no business institutions in the name of accused No.2 were found and he gave the report and his evidence has not been challenged by cross-examining him.
15. The learned counsel also brought to my notice evidence of P.W.5 - Deputy Chief Officer, Zonal Officer, UCO Bank, Bengaluru with regard to non-existence of the business concerns of the accused persons except Rushab Enterprises. The evidence of P.W.5 has not been challenged and have not disputed the evidence of P.W.5 with regard to non-existence of the business concerns of accused Nos.2 to 4. Hence, the appellants cannot contend that there is no evidence before the Court. Even though Manjunath Electronics and New Ganesh Industries were not in existence, accused Nos.2 to 4 creating the documents have availed the loan from the Bank with conspiracy of accused No.1. Hence there are sufficient material before the Court and no grounds to interfere with the order of the Trial Court.
16. The learned counsel for the respondent in support of his contentions relied upon the judgment of the Hon'ble Supreme Court in the case of R. VENKATKRISHNAN v. CENTRAL 10 BUREAU OF INVESTIGATION reported in (2010) 1 SCC (Crl.) 164, wherein it is held that making available public money by bank officials to a private party is contrary to statutory provisions and departmental instructions. Dishonest intention evident from facts and circumstances of the case, amounts to criminal breach of trust even if the money was subsequently recovered and banks did not suffer any monetary loss.
17. The learned counsel referring this judgment would contend that when the beneficiaries have availed the loan conspiring with the Manager of the Bank, the penal provisions of Section 120B of IPC attracts. Hence, this judgment is aptly applicable to the case on hand.
18. Having heard the arguments of the learned counsel for the appellants and the learned Special Counsel appearing for the State and also on perusal of records, the points that would arise for the consideration of this Court are:
(i) Whether the Trial Court has committed an
error in convicting accused Nos.2 to 4?
(ii) What order?
11
Point Nos.(i) and (ii):
19. Before considering the material on record, this Court would like to make it clear that accused No.5 is no more and the appeal filed by accused No.1 Bank Manager was allowed in Crl.A.No.1156/2010. The learned counsel for the State would submit that against the order passed in Crl.A.No.1156/2010, SLP is pending before the Apex Court. However, the learned counsel for accused Nos.2 to 4 makes the submission that accused No.1 is also no more, but to substantiate the same, there is no documents before this Court. The question before this Court is whether accused Nos.2 to 4 indulged in committing the offence under Sections 120B, 420, 468, 471 and 477A of IPC.
20. Having perused the evidence available before the Court, though voluminous documents are placed before this Court, the witnesses who have been examined before the Court P.W.1 - Income Tax Officer speaks with regard to filing of IT returns by accused No.3. The other witness P.W.2 - Assistant Manager of the Bank in his evidence speaks with regard to processing of papers of accused No.4 and he is one of the member of the Block Level Committee and he conducted interview of accused No.4 and recommended her as the 12 beneficiary. On perusal of the evidence of P.W.2, there is no incriminating evidence against the accused persons. P.W.3 who is the Consulting Engineer in his evidence though he says that the property which was offered was having value of Rs.92,000/- and Rs.18,000/-, in the cross-examination he categorically admits that he has not seen the earlier valuation report. Though he says that he has adopted the land and building method in arriving at the valuation, categorically admits in Ex.P.9 that he has not stated that he adopted the land and building method and given the report. He cannot say what method was adopted in arriving in the earlier valuation. First of all, he has not seen the earlier valuation report and his report does not disclose that he has taken the land and building method while arriving at the valuation and further he admits that he cannot say whether earlier valuation was correct or not. Further, a suggestion was made that he undervalued the property under the instructions of the Bank and the same was denied. Having taken note of the evidence of P.W.3 with regard to the assessment of the value of the property, though he claims that he took the land and building, the same is not forthcoming in Ex.P.9. Hence his report cannot be accepted.
13
21. P.W.4 - CTO in his evidence says that he did not find any reference of business institutions of the accused persons and he has submitted the report. The said report is not forthcoming before the Court and the same has not been proved. Though he has not been cross-examined, unless the report is placed before the Court, the evidence of P.W.4, cannot be considered.
22. P.W.5, no doubt in his evidence he has deposed with regard to sanctioning of the loan and non-existence of business concerns of accused Nos.2 and 3. P.W.5 relies upon the valuation report Exs.P.44 to 46 and those reports are marked and the author of those documents have not been examined before this Court. The main evidence before this Court is with regard to accused No.1 that he has not properly assessed the property value before sanctioning the loan. P.W.5 also says that there was no existence of M/s. Manjunath Electronics and New Ganesh Industries and only Rushab Enterprises was in existence. Hence, he says that accused Nos.1 to 4 had indulged in availing the loan furnishing the false documents. The borrowers and the guarantors were also from the family. P.W.5 was cross- examined.
14
23. In the cross-examination, a suggestion was made that M/s. Manjunath Electronics was in existence while availing loan, so also New Ganesh Industries. In the cross-examination, disputed the non-existence of those two business institutions. In order to prove the same, none of the witnesses have been examined, who had been to the spot to verify whether those business institutions were in existence or not. Except the evidence of P.W.5 with regard to non-existence of business institutions of accused Nos.2 to 4, there is no any cogent evidence before the Court.
24. P.W.7 - Zonal Manager in his evidence he says that on going through the loan documents, he noticed that the applications were not filled up completely and also creation of the equitable mortgage was not proper and the extent of loan was beyond their income. In the cross-examination, he admits that the loan in question was recommended by the District Industrial Centre, Davangere District. In the cross-examination it is elicited that he has not received any complaint against the accused persons and only he found irregularities during the course of his inspection and he categorically admits that it is the 15 normal practice that the loan shall not be granted on incomplete documents and if loan is sanctioned without there being any application, the Manager is responsible. Having considered the evidence of P.W.7, the evidence is mainly against accused No.1
- Manager of the Bank. There is no incriminating evidence against accused Nos.2 to 4.
25. The prosecution ultimately relied upon the evidence of P.W.8 - Investigating Officer and in his evidence he says that during the course of investigation, he has collected and recorded the statement of the witnesses and only evidence available against accused Nos.2 to 4 is that he has collected the specimen signatures of accused Nos.2 to 4 and the same was sent to FSL and he has received the report in terms of Ex.P.113. On perusal of evidence of P.W.8, except the incriminating evidence against accused Nos.2 to 4 that he has collected specimen signatures and relied upon Ex.P.113 report which has been received from the GEQD, none of the witnesses have been examined before the Court to substantiate the said report. Mere marking of the report is not enough and the author of the document has to be examined and he has not been examined. In the absence of 16 evidence of the author of the report Ex.P.113, this Court cannot give any credence to the report at Ex.P.113.
26. Having perused both oral and documentary evidence placed on record, this Court does not find any incriminating evidence against accused Nos.2 to 4, except omnibus allegation against the accused persons that they availed the loan by furnishing false documents. To prove the ingredients of Sections 120B, 420, 468, 471 and 477A of IPC, no material is placed before the Court. The Trial Judge has committed an error in not properly appreciating the evidence available on record. The witnesses who have been examined before the Court have also not spoken with regard to the ingredients of the charges levelled against the accused persons. The Trial Judge though discussed in detail the evidence of the prosecution witnesses, lost sight of the incriminating evidence in order to come to a conclusion that these accused persons have committed an offence. While invoking the penal provisions against the accused persons, the duty cast upon the Court is to appreciate the material available on record and find incriminating evidence. The degree of proof required in a criminal case is beyond reasonable doubt and not like civil case depending upon the preponderance of 17 probabilities. It is settled law that in a civil case, the Court has to look into the material on record and based on the preponderance of probabilities, come to a conclusion. In the case on hand, which is a criminal case, while convicting and sentencing the accused, the proof must be beyond reasonable doubt. I do not find any such material before the Court. Though the learned Special Counsel appearing for the respondent vehemently contended that the evidence of P.Ws.4 and 5 is sufficient to come to a conclusion that accused Nos.2 to 4 have committed the offence, I do not find any force in the contention of the learned Counsel for the respondent to confirm the judgment of the Trial Court. The judgment of the Trial Court is nothing but reading of the evidence of the prosecution. The Trial Court has not analyzed the evidence in a pragmatic approach to examine whether there is any incriminating evidence against the accused or not. The judgment of conviction is not sustainable in the eye of law and there is no any legal evidence against accused Nos.2 to 4 to come to a conclusion that they have committed the offence punishable under Sections 120B, 420, 468, 471 and 477A of IPC and the approach of the Trial Court is erroneous. Hence, the judgment of the Trial Court convicting 18 accused Nos.2 to 4 is not sustainable and it requires interference of this Court. The judgment quoted by the Special Counsel is not applicable to the case on hand considering the material on record and the judgment is applicable depending on the facts and circumstances of each case. No dispute with regard to the principles laid down in the judgment and not found any such material in the case on hand that these accused persons were indulged in conspiring with accused No.1 in getting the loan and involvement of these accused in fabricating the documents.
27. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment of the Trial Court dated 05.10.2010 passed in Spl.C.C.No.11/2008, is set aside.
(iii) Accused Nos.2 to 4 are acquitted for the offence invoked against them.
(iv) The Registry is directed to transmit the Trial Court Records, forthwith.
19
(v) The fine amount deposited by the accused persons before the Trial Court is ordered to be refunded in favour of respective accused persons.
Sd/-
JUDGE MD