Madras High Court
K.Thiagarajan vs The State on 3 December, 2010
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03/12/2010
CORAM
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
CRL.A.No.68 of 2002
CRL.A.No.118 of 2002
CRL.A.No.119 of 2002
CRL.A.No.120 of 2002
CRL.A.No.121 of 2002
and
CRL.A.No.150 of 2002
K.Thiagarajan
... Appellant / A3 in C.A.No.68 of 2002
V.S.Venkatesan ... Appellant / A1 in C.A.Nos.118, 119,
120, 121 of 2002
P.Srinivasan ... Appellant /A3 in C.A.No.150 of 2002
Vs
The State
Rep. by the Dy. Superintendent of Police,
SPE/CBI/ACB. Chennai.
... Respondent / Complainant
COMMON PRAYER
Criminal Appeals preferred under Section 374, seeking to call for
the records and set aside the Judgment dated 26.12.2001 in C.C.No.8, 9, 10, 11
of 1995 respectively on the file of the Principal Special Judge, for CBI Cases,
Madurai and acquit the appellants / A1 and A3 from all of the charges levelled
against them.
!For Appellant /A1 in
C.A.Nos.118 to 120 of 2002 ... Mr.D.Selvaraj
For Appellant / A3 in
C.A.No. 68 of 2002 ... Mr.T.K.Gopalan
For Appellant / A3 in
C.A.No.150 of 2002 ... Mr.C.Sundaravadivel
^For Respondent
in all Crl. Appeals ... Mr.S.Rozario Sundar Raj
Spl. Public Prosecutor
for CBI cases
:COMMON JUDGMENT
Appeal in C.A.Nos.118, 119, 120 and 121 of 2002 have been preferred by A1 in C.C.Nos.8,9,10 and 11 of 1995 respectively. C.A.No.150 of 2002 relates to C.C.No.8 of 1995. C.A.No.68 of 2002 in C.C.No.10 of 1995 has been preferred by A3.
2. It is seen that the appellant, V.S.Venkatesan, arrayed as A1 has preferred the appeals in C.A.No.118 of 2002, C.A.No.119 of 2002, C.A.No.120 of 2002 and C.A.No.121 of 2002. The appellant / A3, K.Thiagarajan has preferred C.A.No.68 of 2002 in C.C.No.10 of 1995 and appellant / A3 in C.A.No.150 of 2002 has preferred appeal against the conviction and sentence imposed on him in C.C.No.8 of 1995.
3. In the case in C.C.No. 8 of 1995, on the file of the Principal Special Judge for CBI Cases, Madurai, there were three accused, namely, V.S.Venkatesan / A1, A.V.Jyothilal / A2 and P.Srinivasan / A3. The case was registered against the aforesaid accused under Section 120-B r/w 420, 467, 468, 477A, 471 r/w 467 IPC and Section 5(2) r/w 5(1)(d) of P.C. Act 1947. As per the Judgment, dated 26.12.2001, A1, V.S.Venkatesan was found guilty for the offence punishable under Section 120-B r/w 420, 468 and 477-A IPC and Section 5(2) r/w 5(1)(d) of P.C.Act, 1947; under sections 468 IPC, 468 r/w 471 IPC, 477-A IPC and under section 5 (2) r/w 5 (1) (d) of P.C.Act, 1947 and convicted and sentenced to undergo R.I for one year and to pay a fine of Rs.2,000/-, in default, to undergo R.I. for three months for each of the offences. A3 was convicted and sentenced to undergo R.I. for one year and to pay a fine of Rs.2,000/-, in default, to undergo a further period of three months RI for each of the offences under Section 120-B r/w 420, 468, 477A IPC and Section 5(2) r/w 5(1)(d) of P.C. Act 1947 and under Section 420 IPC. The sentences imposed for all the offences are ordered to run concurrently. Total fine imposed on A1 was Rs.10,000/- and Total fine imposed on A3 was Rs.4,000/-. A2 was acquitted by the Court below. Aggrieved by the Judgment, dated, 26.12.2001 A1 preferred the appeal in C.A.Nos.118,119, 120 and 121 of 2002 and A3 preferred the appeal in C.A.No.150 of 2002.
4. The case in C.C.No.9 of 1995 was registered against V.S.Venkatesan, Field Officer and two others. After the trial, A2 was acquitted and A3 subsequently, died. A1 was convicted and sentenced to undergo R.I. for one year and to pay a fine of Rs.2,000/-, in default, to undergo R.I. for three months, each for the offences under Section 120-B r/w 420, 468 and 477-A IPC and Section 5(2) r/w 5(1)(d) of P.C. Act, 1947; under Sections 468 IPC; 468 r/w 471 IPC; 477-A IPC and under Section 5(2) r/w 5(1) (d) of P.C. Act, 1947. Aggrieved by the Judgment, A1 has preferred the appeal in C.A.No.119 of 2002.
5. In the case in C.C.No.10 of 1995 registered against A1, V.S.Venkatesan, Field Officer and two others, A2 was acquitted, A3, Thiagarajan was proprietor of one Sri Murugan Textiles, who availed cash credit facilities from the Bank. A1 was convicted and sentenced to undergo R.I. for one year and to pay a fine of Rs.2,000/-, in default, to undergo R.I. for three months, each for the offences under Sections 120-B r/w 420, 468, 477-A IPC 468 r/w 471 IPC and under Sections 5(2) r/w 5(1)(d) of P.C. Act, 1947; under sections 468, 468 r/w 471, 477A IPC and 5 (2) r/w 5 (1) (d) of P.C.Act, 1947. It is seen that A2 was acquitted, but A3 was convicted and sentenced to undergo R.I. for one year and to pay a fine of Rs.2,000/-, in default, to undergo R.I. for three months for each of the offences under Section 120-B r/w 420, 468, 477A IPC and Section 5(2) r/w 5(1)(d) of P.C. Act, 1947 and under Section 420 IPC. The sentence imposed for all the offences are ordered to run concurrently. Total fine imposed on A1 was Rs.10,000/- and Total fine imposed on A3 was Rs.4,000/-. Aggrieved by the Judgment, dated 26.12.2001, A1 preferred appeal in C.A.No.120 of 2002 and A3 preferred appeal in C.A.No.68 of 2002.
6. The case in C.C.No.11 of 1995 was registered against V.S.Venkatesan, Field Officer and two others and after the trial, A2 was acquitted. A3 P.K.Perumal, subsequently died, charges framed against him were recorded was abated. A1 was convicted and sentenced to undergo R.I. for one year and to pay a fine of Rs.2,000/-, in default, to undergo further period of three months R.I for each of the offences under Section 120-B r/w 420, 468 and 477-A IPC, Section 5(2) r/w 5(1)(d) of P.C. Act, 1947, under Section 468 IPC, 468 r/w 471 IPC, 477- A IPC and under Section 5(2) r/w 5(1)(d) of P.C. Act, 1947. The sentences imposed for all the offences are ordered to run concurrently along with the sentence imposed in C.C.No.8 of 1995 and a total fine amount Rs.10,000/- was imposed on the A1.
7. The brief facts of the case relating to the case in C.C.No.8 of 1995 is as follows:-
7.1 During the 1981-82 A1 was working as Field Officer at Madurai City Branch of State Bank of India and A2 was the Unit Clerk attached to him in the Bank. A3 was the Managing Partner of one M/s SRP Textiles, a partnership firm at Avaniapuram, having account in the SIB Division of the said Bank with cash credit, mundy and bill type facilities of Rs.2 lakhs each, apart from term loan of Rs.2 lakhs. Though maximum limit of the facility was fixed as stated above the drawing power would be arrived at on the basis of bills submitted by the party towards the cash credit of bills on the basis of stock in hand as furnished by the party in the periodical stock statement. In case of cash credit facility of mundy type, the same is based on the entries made in the combined Drawing Power Register, which are being entered as the combined drawing power and also being entered in the Cash Credit Ledger by the Field Officer or his Unit Clerk. On the basis of this drawing power entry made in the Cash Credit Ledger, the passing officer would pass the cheques of the party availing the said facilities. The Bill Drawing Power Register Ex.P.2 and Ex.P.6 were maintained in the bill section of the Bank, where P.W.3, P.T.Jayakar Samuelraj was working as officer. Mundy, type stock statements are to be filed periodically by the said unit. The drawing power arrived at in Ex.P.2 with the drawing power of mundy type should be taken to the Combined Drawing Power Register Ex.P.3 which was maintained by the Unit Clerk. It is alleged that the entries in this register were made by A2, the then Unit Clerk. Thus, from bill Drawing Power Register and Combined Drawing Power Register, the drawing power of the party has to be noted in the Cash Credit Ledger Ex.P.4 by the Field Officer and the relevant pages relating to SRP Textiles is Ex.P.5 series.
7.2. The allegation against A1 by the prosecution is that A1, as Field Officer had noted the drawing power with inflated figure against the entry made in the Cash Credit Ledger Ex.P.3, instead of actual drawing arrived at either from Drawing Power Register Ex.P.2 or Combined Drawing Power Register Ex.P.3 as against the dates 30.07.1980, 08.04.1981, 06.05.1981, 24.08.1981, 30.12.1981 and 20.03.1982, so as to make A3 to show more outstandings in his accounts for enjoying the facilities higher than the permitted limit. P.W.4 Venkatraman, who was also the Unit Clerk had made the entry dated 31.12.1981 in Ex.P.3 on the basis of stock statement and the entry in Bill Drawing Power Register. He made entries dated 30.04.1982 in Ex.P.2., but it is alleged that "1" in the lakhs column was not entered by him.
7.3. In Ex.P.2 Drawing Power Register at page 198 on 25.04.1981, "1" was prefixed to the lakhs column of the drawing power and balance column and on 08.05.1981 the words column was also written wrongly and authenticated by A1.
7.4. As per the prosecution case, on receipt of the complaint Ex.P.11 from the Circle Vigilance Officer, SBI, Chennai, P.W.7 Somasekaran Nair, DSP, CBI, registered the case in RC No.21/83 against the A1 and A2 under Section 120-B r/w 468, 471 IPC and Section 5(2) r/w 5(1)(d) of P.C. Act, 1947 and the FIR is Ex.P.12. P.W.7 took up the investigation, examined the witnesses and seized the documents from the bank. He obtained search warrant from the Court and caused searches of the residential premises of the accused and submitted search list along with the documents to the Court. The search warrant and search list with the letter of the I.O. is Ex.P.13 series. He collected the specimen writings of A1. The documents sent to the Central Forensic Science Lab by the SP, CBI under his forwarding letter Ex.P.9 were examined by Hardan Singh, Senior Scientific Officer, and he gave expert opinion Ex.P.10. P.W.6, N.Ravi, Scientific Officer worked along with Hardan Singh and identified the signature and writings available in Ex.P.10 opinion. The I.O. filed a memo before the Court for correcting the name of A1 as V.S.Venkatesan in the FIR, since as per the prosecution version, the name was inadvertently mentioned as Venkateswaran, the said memo was marked as Ex.P.14. P.W.1, V.Subbarao, the Chief General Manager of SBI, Chennai circle, being the competent authority to appoint or remove the clerical cadre staff in the service, after applying his mind, independently into the materials placed before him, accorded sanction under Ex.P.1, to prosecute A2, clerk of Madurai City Branch. As per the prosecution case, sanction was not obtained for A1, as he was dismissed from service.
7.5. In support of the case of the prosecution, P.W.1 to P.W.7 were examined and Ex.P.1 to Ex.P.14 were marked before the trial court and the prosecution evidence was closed. After questioning the accused under Section 313 Cr.P.C with regard to the incriminating evidence available against them, the matter was posted for defence witnesses and after the arguments, the Court below convicted A1 and A3 and sentenced them as stated above, though, A2 was acquitted.
8. A3 in C.C.No.9 of 1995 died during the pendency of the case, hence, charges framed against him were recorded as abated.
8.1 As per the prosecution case, during 1981-82, A1 was working as Field Officer at State Bank of India, Madurai City Branch and A2 was the Unit Clerk attached to him in the said Branch. Deceased A3 as proprietor of M/s Sri Somnath Textiles, Avaniapuram, having account in the SIB Division of the said bank with cash credit, mundy and bill type facilities of Rs.1,35,000/- and Rs.50,000/- respectively apart from term loan of Rs.18,000/-. The maximum limit of the facility was fixed as stated above the drawing power would be arrived at on the basis of bills submitted by the party towards the cash credit of bills, on the basis of stock in hand as furnished by the party in the periodical stock statement. In case of cash credit facility of mundy type, entered in the Combined Drawing Power Register, the combined drawing power is being entered in the Cash Credit Ledger by the Field Officer or his Unit Clerk. On the basis of this drawing power entry made in the Cash Credit Ledger the bill passing officer would pass the cheques of the party availing the above said facilities. The Bill Drawing Power Register, Ex.P.2 was maintained in the bill section where P.W.3, .P.T.Jayakar Samuelraj was the officer. Regarding mundy type stock statements, the same were to be filed periodically by the unit. Drawing power arrived at in Ex.P.2 with the drawing power Register entry in Ex.P.3, which was maintained by the Unit Clerk. The entries in the said register were made by A2, the Unit Clerk. Thus, from Bill Drawing Power Register and Combined Drawing Power Register drawing power was to be noted in the Cash Credit Ledger Ex.P.4 by the Field Officer. The relevant pages relating to Somnath Textiles has been marked as Ex.P.5 series.
8.2. It is alleged that A1, as Filed Officer noted the inflated figure, that was available in the Cash Credit Ledger Ex.P.3 instead of actual drawing power arrived at, either as per the entry in the Drawing Power Register Ex.P.2 or Combined Drawing Power Register Ex.P.3 against the dates 29.03.1981, 06.05.1981, 23.05.1981, 24.08.1981, and 10.12.1981 so as to make in favour of A3 to show more outstanding in his accounts, in order to enjoy the facility higher than the permitted limit. P.W.4, Venkatraman, who was also the Unit Clerk had made entry dated 31.12.1981 in Ex.P.3 on the basis of the stock statement and Bill Drawing Power Register.
8.3. In ExP.2 Drawing Power Register at page number 185 on 14.09.1981, it is alleged that "1" was prefixed in the lakhs column of the drawing power and regarding the balance column, on 30.12.1981 in words column also, the same had been written wrongly and was authenticated by A1.
8.4. As per the prosecution case, on receipt of the complaint Ex.P.10 from the Circle Vigilance Officer, SBI, Madras, P.W.7 Somasekaran Nair, DSP, CBI, registered the case in RC No.21/83 against A1 and A2, under Section 120-B r/w 468, 471 IPC and Section 5(2) r/w 5(1)(d) of P.C. Act, 1947 and the FIR is Ex.P.11. P.W.7 took up the investigation, examined witnesses and seized the documents from the Bank. He obtained search warrant from the Court and caused searches of the residential premises of the accused and submitted search list along with documents to the Court. The search warrant and search list with a letter of the I.O., has been marked as Ex.P.12 series. He collected the specimen writings of A1. The documents sent to the Central Forensic Science Lab by the SP, CBI under his forwarding letter Ex.P.8 were examined by Hardan Singh, Senior Scientific Officer, and he gave his opinion, Ex.P.9. However, only P.W.6, N.Ravi, Scientific Officer worked along with Hardan Singh identified the signature and writings in Ex.P.10 opinion. The I.O. filed a memo before the Court for correcting the name of A1 as V.S.Venkatesan in the FIR as it was wrongly mentioned as Venkateswaran and the memo is Ex.P.13. P.W.1, V.Subbarao, Chief General Manager of SBI, Chennai Circle, being the competent authority to appoint or remove the clerical cadre staff from service, after applying his mind independently into the materials placed before him, accorded sanction under Ex.P.1 to prosecute A2, clerk of Madurai City Branch. As per the prosecution case, sanction was not obtained for prosecuting A1 on the ground that he was dismissed from service. After completing the investigation since P.W.7 retired from service, his successor Haridasan Nair filed the charge sheet.
8.5. In support of the case of the prosecution, P.W.1 to 7 were examined and Ex.P.1 to P.14 were marked. After the prosecution evidence being closed, the accused were questioned under Section 313 Cr.P.C with regard to the incriminating evidence available on record. The Court below, considering the evidence and arguments advanced by both sides, convicted the A1 and A3 and imposed sentence as stated above, however, A2 was acquitted.
9. The case in C.C.No.10 of 1995 was registered against Field Officer, V.S.Venkatesan and two others. After the trial, A2 was acquitted, A1 and A3 were convicted as stated above.
9.1. As per the prosecution case, during 1981-82, A1 was working as Field Officer at Madurai City Branch of State Bank of India and A2 was the Unit Clerk attached to him. A3 as proprietor of M/s Murugan Textiles, Avaniapuram, having account in the SIB Division of the said bank with cash credit, mundy and bill type facilities of Rs.40,000/- and Rs.1,25,000/- respectively. Though maximum limit of the facility was fixed as mentioned above the drawing power would be arrived at on the basis of bills submitted by the party in the form of cash credit bills. On the basis of stock in hand as furnished by the party in periodical stock statement in case of cash credit facility in mundy type, as entered in the Combined Drawing Power Register, the combined drawing power would be entered in the Cash Credit Ledger by the Field Officer or his Unit Clerk. On the basis of this drawing power entry available in the Cash Credit Ledger the passing officer would pass the cheques of the party availing the above said facilities. The Bill Drawing Power Register Ex.P.2 was maintained in the bill section, where P.W.3 P.T.Jayakar Samuelraj was the officer at that relevant period. Mundy type stock statements are to be filed periodically by the unit. Drawing power arrived at in Ex.P.2 with the drawing power Register Ex.P.3 was maintained by the Unit Clerk. The entries in this register were made by A2, the Unit Clerk. Thus, from Bill Drawing Power Register and Combined Drawing Power Register, the drawing power was to be noted in the Cash Credit Ledger Ex.P.4 by the Field Officer. The relevant pages relating to Murugan Textiles is Ex.P.5 series.
9.2. A1 as Filed Officer noted the inflated figure in the Cash Credit Ledger, Ex.P.3 instead of actual drawing power arrived at either in the Drawing Power Register, Ex.P.2 or Combined Drawing Power Register Ex.P.3 against the dates 08.04.1981, 06.05.1981, 23.05.1981, 08.06.1981, 27.08.1981, 31.12.1981 and 18.01.1982 so as to make A3 to have more outstandings in his accounts for enjoying the facilities higher than the permitted limit. P.W.4, Venkatraman, who was also the Unit Clerk made entry dated 31.12.1981 in Ex.P.3 on the basis of the entries made in the stock statement and Bill Drawing Power Register.
9.3. The prosecution has stated that in Ex.P.2 Drawing Power Register at page 167 on 29.09.1981 "1" was prefixed in the lakhs column of the drawing power and balance column and on 14.12.1981 and in the words column also the same is written wrongly and authenticated by A1.
9.4. As per the prosecution case, on receipt of the complaint, Ex.P.10 from the Circle Vigilance Officer, SBI, Chennai, P.W.7, Somasekaran Nair, DSP, CBI, registered the case in RC No.21/83 against the A1 and A2 under Section 120- B r/w 468, 471 IPC and Section 5(2) r/w 5(1)(d) of P.C. Act, 1947 and the FIR was Ex.P.11. P.W.7 took up the investigation, examined the witnesses and seized the documents from the bank. He obtained search warrant from the Court and caused searches of the residential premises of the accused and submitted search list along with the documents to the Court. The search warrant and search list along with letter of the I.O., that was marked as Ex.P.12 series. He collected the specimen writings of A1. The documents sent to the Central Forensic Science Lab by the SP, CBI under his forwarding letter Ex.P.8 were examined by Hardan Singh, Senior Scientific Officer, and he gave opinion Ex.P.9. P.W.6, N.Ravi, Scientific Officer worked along with Hardan Singh identified his signature and writings available in Ex.P.9 opinion. The I.O. filed a memo before the Court below for correcting the name of A1 as V.S.Venkatesan in the FIR as it was inadvertently mentioned as Venkateswaran and the memo is Ex.P.13. P.W.1, V.Subbarao, the Chief General Manager of SBI, Chennai circle, being the competent authority to appoint or remove the clerical cadre staff, after applying his mind independently into the materials placed before him, accorded sanction under Ex.P.1, sanction order, to prosecute A2, clerk, Madurai City Branch. As per the prosecution case, sanction was not obtained for A1 as he was dismissed from service. After completing the investigation, since P.W.7 retired, his successor Haridasan Nair filed charge sheet.
9.5. In support of the case of the prosecution, P.W.1 to 7 were examined and Ex.P.1 to P.13 were marked. After the prosecution evidence was closed, the accused were questioned under Section 313 Cr.P.C with regard to the incriminating evidence adduced by prosecution witness. The Court below convicted the A1 and A3 and sentenced them as stated above, however, A2 was acquitted. Aggrieved by which, A1 has preferred C.A.No.120 of 2002 and A3 preferred C.A.No.68 of 2002.
10. In the case in C.C.No.11 of 1995, registered against the Field Officer V.S.Venkatesan and two others, A2 was acquitted. A3 died, hence, charges framed against him were recorded as abated. On the side of the prosecution, P.W.1 to P.W.6 were examined and 13 Exhibits were marked and on the side of the accused Ex.D1 to D9 were marked.
10.1. As per prosecution case, during 1981-82 A1 was working as Field Officer at Madurai City Branch of State Bank of India and A2 was the Unit Clerk attached to him. The Deceased A3, as proprietor of M/s. P.K.Perumal Textiles, Avaniapuaram had account in the SIB Division of the said bank with cash credit, mundy and bill type facilities to an extent of Rs.70,000/- each. Though maximum limit of the facility was fixed as mentioned above, the drawing power would be arrived at on the basis of bills submitted by the party towards the cash credit bills and on the basis of stock in hand as furnished by the party in the periodical stock statement, in case of cash credit facility in mundy type and entered in the Combined Drawing Power Register, the combined drawing power would be entered in the Cash Credit Ledger by the Field Officer or his Unit Clerk. On the basis of this drawing power entry in the Cash Credit Ledger the passing officer would pass the cheques of the party availing the above said facilities. The Bill Drawing Power Register Ex.P.2 was maintained in the bill section, where P.W.3, P.T.Jayakar Samuelraj was officer at that time. Mundy type stock statements were to be filed periodically by the unit. Drawing power arrived at in Ex.P.2 with the drawing power Register Ex.P.3 which was maintained by the Unit Clerk. As per the prosecution case, the entries in this register were made by A2, the Unit Clerk. Thus, from Bill Drawing Power Register and Combined Drawing Power Register drawing power had to be noted in the Cash Credit Ledger Ex.P.4 by the Field Officer and the relevant pages relating to Murugan Textiles was Ex.P.5 series.
10.2. It is alleged by the prosecution that A1, as Filed Officer had noted the inflated figure in the Cash Credit Ledger, Ex.P.3, instead of actual drawing power arrived at either in the Drawing Power Register Ex.P.2 or Combined Drawing Power Register Ex.P.3 against the dates 30.01.1981, 16.03.1981, 23.05.1981, 12.06.1981, 12.07.1981, 10.12.1981, 15.12.1981 and 15.01.1982 so as to make A3 to have more outstandings in his accounts by enjoying the advances higher than the permitted limit. P.W.4, Venkatraman, who was also the Unit Clerk made entry dated 31.12.1981, in Ex.P.3 on the basis of stock statement and Bill Drawing Power Register.
10.3. It was submitted on the side of the prosecution that in Ex.P.4 Cash Credit Ledger on 29.09.1980 the figure "1" in thousand column for the sanctioned limit of Rs.1,10,000/- was corrected as "4' by showing the figure as Rs.1,40,000/- for the sanctioned limit and authenticated by A1. Sanctioned limit under Cash Credit mundy type was also altered from Rs.30,000/- to Rs.60,000/- by A1 to suite the above alteration.
10.4. As per the prosecution case, on receipt of the complaint Ex.P.10, from the Circle Vigilance Officer, SBI, Chennai, P.W.7, Somasekara Nair, DSP, CBI, registered the case in RC No.21/83 against the A1 and A2 under Section 120- B r/w 468, 471 IPC and Section 5(2) r/w 5(1)(d) of P.C. Act, 1947 and the FIR is Ex.P.11. P.W.7 took up the investigation of the case, examined the witnesses and seized the documents from the bank. He obtained search warrant from the Court and caused searches of the residential premises of the accused and submitted search list along with the documents to the Court. The search warrant and search list with the letter of the I.O. has been marked as Ex.P.12 series. He collected the specimen writings of A1. The documents sent to the Central Forensic Science Lab by the SP, CBI under his forwarding letter Ex.P.8 were examined, Hardan Singh, Senior Scientific Officer, gave opinion Ex.P.9. However, P.W.6, N.Ravi, Scientific Officer said to have worked along with Hardan Singh identified his signature and writings available in Ex.P.9 opinion. The I.O. filed a memo before the Court for correcting the name of A1 as V.S.Venkatesan in the FIR as it was wrongly stated as Venkateswaran and the memo was marked as Ex.P.13. P.W.1, V.Subbarao, the Chief General Manager of SBI, Chennai circle, being the competent authority to appoint or remove the clerical cadre staff from service, after applying his mind independently into the materials placed before him accorded sanction under Ex.P.1, to prosecute A2, clerk in Madurai City Branch. As per the prosecution case, sanction was not obtained for A1 as he was dismissed from service. After completing the investigation since P.W.7 retired, his successor Haridasan Nair filed the charge sheet.
10.5. In support of the case of the prosecution, P.W.1 to 6 were examined and Ex.P.1 to P.13 were marked. It is not in dispute that after the prosecution evidence was closed, the accused were questioned under Section 313 Cr.P.C with regard to the incriminating evidence adduced by the prosecution. The Court below convicted the A1 and A3 and sentenced them as stated above and A2 was acquitted.
11. Learned counsel appearing for the appellant/A1 submitted that there was no legal sanction to prosecute A1, since P.W.1, the General Manager accorded sanction to prosecute only A2. According to the learned counsel, the conviction and sentence imposed on the appellant / A1 in the case in C.A.Nos.118, 119, 120 and 121 of 2002 are not legally sustainable. The learned counsel further submitted that the said appellant / A1 was only a Field Officer, he had not made any entries in the register, as alleged by the prosecution and he had nothing to do with the alleged cash credit facilities. Hence, the charges levelled against A1 were not proved by the prosecution, however, without considering the legal aspects, the Court below has convicted A1 and also imposed sentence. The counsel also drew the attention of this Court to the prosecution evidence and submitted that the prosecution has not examined witness number 4 in the list to establish the allegation relating to the materials placed before the Court below for convicting the accused and further submitted that the expert opinion could not have been accepted by the Court below, as the competent witness was not examined and mandatory procedures were not followed in establishing the guilt.
12. In support of his contention, the learned counsel relied on the decision reported in 2004 SCC (Cri) 1176, 2004 SCC (Cri) 1213 and 2009(6) SCC
58. He further contended that no loss was incurred by the bank, on account of the alleged occurrence and there is no evidence to show that the Filed Officer / A1 had committed any offence, so as to punish him under Section 120-B and 420 and other provision of law.
13. Per contra, Mr.Rozario Sundarraj, learned Special Public Prosecutor submitted that the alleged guilt against the appellants /A1 and A3 have been established beyond reasonable doubt. The learned Special Public Prosecutor also submitted that amounts were sanctioned, based on the entries made in the Drawing Power Register and Cash Credit Ledger and other connected registers. However, the counsel appearing for the appellant submitted that the appellant was not responsible for the alleged correction made in the relevant registers and contended that the lack of legal sanction obtained for A1 would also vitiate the prosecution case. In P.A.Mohandas vs. State of Kerala reported in 2004 SCC (Cri) 1176, the Hon'ble Apex Court has held that as per Section 19of the Prevention of Corruption Act 1988, lack of legal sanction for prosecuting an employee from the competent authority makes the case initiated, without jurisdiction and accordingly, the criminal proceeding is liable to be quashed. The Hon'ble Apex Court in paragraph 3 of the Judgment has ruled as follows:-
"3. Under Section 19 of the Act, no court can take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the authority competent to remove the person concerned. In the case in hand, the Secretary (Vigilance) appears to have accorded sanction to prosecute. The appellant's case is that the Secretary (Vigilance) was authorised to grant sanction only on 23.04.1994 and there is no order of the State Government making the Secretary (Vigilance) competent to accord sanction prior to the said date. The learned counsel appearing for the State is not in a position to refute the aforesaid contention and, in fact, is not able to produce any document which confers power on the secretary (Vigilance) to accord sanction prior to 23.04.1994. The sanction in the present case was given prior to the aforesaid date. The date on which the sanction appears to have been given, the authority concerned had no jurisdiction and, therefore, there is an embargo on the court's power to take cognizance for non-compliance of Section 19 of the Act. We accordingly quash the proceeding."
14. In Manoranjan Prasad Choundhary vs. State of Bihar, it was held that the proceeding initiated under Prevention of Corruption Act, 1988 was liable to quashed as there was no sanction obtained from the competent authority. Wherein, the Hon'ble Supreme Court has held as follow:-
"2. The sole question that arises for consideration is whether sanction has been accorded by the competent authority under Section 19(1)(c) of the Prevention of Corruption Act, 1988. The authority competent to remove him from the office is the authority to accord sanction and admittedly, the said authority is the Managing Director of the Company, as contended by the counsel for the petitioner and conceded by Mr.B.B.Singh, learned counsel appearing for the State of Bihar. In that view of the matter, since there is no sanction of the competent authority, the proceeding is vitiated. We accordingly set aside the impugned order and quash the proceeding."
15. It is seen that P.W.1, General Manager has specifically stated in his evidence, as contended by the learned counsel appearing for the appellant / A1 that sanction was obtained only to prosecute the appellant /A2, who was acquitted and admittedly there was no sanction obtained to prosecute the appellant / A1.
16. Learned Special Public Prosecutor contended that since the A1, Field Officer was dismissed from service, there was no necessity to obtain any sanction from the competent authority.
17. The learned counsel appearing for the appellant / A1 brought it to the notice of this Court that the evidence of P.W.7, S.Soma Sekaran Nair, investigating officer in his cross-examination, has stated that there was no departmental action initiated by him thus : "It is not correct to say that I had no connection with Department after my retirement. I do not remember the dates when I was called for by my Department. The number assigned to the charge sheet by our department 2/94, dated 24.8.94. I deny the suggestion that I have not investigated the case properly". There is no dispute with regard to the legal aspect and it is relevant to consider Section 6 of the Prevention of Corruption Act 1947, which reads as follows:-
"6. Previous sanction necessary for prosecution.-(1) No Court shall take cognizance of an offence punishable under Section 161 or Section 164, Section 165 of Indian Penal Code, 1896 (Act XLV of 1860), or under Sub-section (2) or sub-section (3-A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office, save by or with the sanction of the Central Government, of the Central Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office, save by or with the sanction of the State Government, of the State Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
As per the decisions rendered by the Hon'ble Apex court referred to above, any criminal proceeding initiated without proper sanction has to quashed as illegal. In the instant case, admittedly, no sanction was obtained from the competent authority, so far as Appellant / A1, Field Officer is concerned and there is no evidence to show that he was dismissed from service. The Investigating Officer P.W.7 has stated as a prosecution witness that the appellant / A1 was dismissed from service, hence, no sanction was obtained, but no supporting document was produced to show that there was departmental action taken against A1. Without initiating any departmental proceeding and holding the appellant / A1 guilty of the charges there could be no possibility for removal or dismissal of the appellant / A1. As per the evidence of Investigating Officer and the evidence available on record, it is clear that no departmental proceeding was initiated to dismiss the appellant / A1 from service.
18. It cannot be disputed that sanction from the competent authority, as contemplated under Section 6 of the Prevention of Corruption Act is mandatory. Admittedly, no sanction was obtained so far as appellant / A1 is concerned. Hence, the burden is on the prosecution to establish that he had been dismissed from service, based on a departmental proceeding, hence, sanction from the competent authority was not required to prosecute him.
19. The Hon'ble Supreme Court in C.Chenga Reddy vs. State of A.P. reported in 1996 Cri. L.J.3461 has held that in a case under Section 5(1)(d), (2) of Prevention of Corruption Act (2 of 1947), where the charge against few other Government officials and contractors that they had conspired with them to commit offence, punishable under Section 420/34, 377A/34 IPC and Section 5(1)(d) of the Prevention of Corruption Act and when the case was based purely on circumstantial evidence, though certain illegalities found had been committed in allotting work, apart from the fact that no evidence of clinching nature to establish the chain of events and to prove the charges, it was held that the accused were entitled to benefit of reasonable doubt for getting acquittal. In the aforesaid Judgment in paragraph 54 the Hon'ble Supreme Court has held as follows :
"54. As a result of our above discussion of various representative appeals and which discussion equally applies to all the appeals filed in this court arising our of the judgment of the High Court dated 27.11.1991, we find that the prosecution has not been able to establish, beyond a reasonable doubt, its case against any of the departmental officials, that is, the Engineers and section officers and consequently their appeals succeed and their conviction and sentence are set aside. The fine paid by each one of them is directed to be refunded to them. The prosecution has also not established its case against any of contractors beyond a reasonable doubt. Their appeals also succeed and their conviction and sentence are hereby set aside. The fine paid by them is directed to be refunded to them. Their bail bonds shall stand discharged."
Relying on the decision, learned counsel appearing for the appellants / A1 and A3 submitted that there is no direct evidence to establish the alleged guilt against A1 under the Prevention of Corruption Act and also alleged conspiracy of A1 and A3. In the decision cited above, the Hon'ble Apex Court has held that by adducing sufficient evidence, clinching in nature the offence could be proved and if there is insufficient evidence to establish the guilt against the accused, depending on circumstantial evidence the accused would be entitled to the benefit of any reasonable doubt. In the instant case, the allegation by the respondent is that there is a correction made in the aforesaid registers by A1 and A2, in pursuance of the alleged conspiracy.
20. As per the case relating to C.A.No.118 and 150 of 2002, on 30.07.1980, the figure was wrongly noted in the Drawing Power Register in favour of A3, which was found as Rs.3 lakhs in Cash Credit Ledger against Rs.65,000/- in the combined D.P. Register on the said date and thereby under Ex.P7, outstanding of Rs.1,85,823.06/- was shown, in order to make more eligibility for A3, who knew fully well on the actual availability of the facility. As per the prosecution case, A1 approved false enquiry in Cash Credit Ledger in favour of A3 by making entry in the combined Drawing Power Register as per Bill Drawing Register at page 198 drawing of power of A3 was shown as Rs.88,421.46/- and figure "1" was prefixed in the balance column and advance column, so as to make it to appear the balance and the advance value as Rs.1,88,421.46/-, whereas the actual drawing power was only Rs.76,900/-, that was made by A2 as per the charge framed and the same was authenticated by A1. It is not in dispute that A2 was acquitted by the Court below on the ground that the charges were not proved against said accused.
21. There is no direct evidence to show that there was any conspiracy between the account holder / A3 and the appellant/A1. According to the learned Special Public Prosecutor, the account holder / A3 was permitted to have over drawn facility, above the limit of cash credit and other facilities and that there are corrections in the register, therefore, there could have been conspiracy between A3 and A1, the Field Officer.
22. Per contra, the learned counsel appearing for the appellant/A1 submitted that the appellant/A1 was not the sanctioning authority and the entries were not made by A1, but only by concerned clerks of the unit, hence, criminal liability cannot be fixed on the Appellant / A1. It is an admitted fact that the Bill Drawing Power Register Ex.P.2, Combined Drawing Power Register Ex.P.3, and Cash Credit Ledger Ex.P.4 were maintained by various sections and the entries were made by the clerks of the concerned sections and the appellant/A1 is not the controlling officer of clerks, who made the entries and he was also not the sanctioning authority. It is not in dispute that the papers were being processed to the Field Officer and it was the duty of the sanctioning authority to verify the correctness and to pass appropriate orders. The counsel for the appellant / A1 argued that the respondent cannot fix any criminal liability on A1, Field Officer, since he was neither an officer, who made the entries, nor the sanctioning authority for the Bank cash credit and other facilities provided to A3.
23. As per the prosecution evidence, P.W.2 took over charge from the appellant / A1, as Field Officer and according to him, A2 was the Unit Clerk attached to the Field Officer (A1) and that the Bill Drawing Power Register for the period of 1981 onwards was maintained in the office of the Bank, during the official course of business and at page No.188 marked as Ex.P.2, in the Register relating to M/s SRP Textiles, the Limit for the sanction is stated at Rs.2 lakhs. At page No.198, dated 25.04.1981 "1" was added in the lakhs column wherein words column was not corrected, as per the figure as on 08.05.1981 and it was initiated by the Field Officer. It is not in dispute that the Register was maintained and entries were made by concerned Bill Section Clerk, that was continued up to 15.07.1982 and not by A1. However, in the cross-examination, the prosecution witness would say that he does not know whether one Jaya was responsible for the entries made in the Bill Drawing Power Register, when A1 was Field Officer and he has stated further that maintaining ledger is the duty of the Ledger Keeper and during Officer hours, Cash Credit Ledger would be available with the Ledger Keeper. However, the witness does not know who was the Ledger Clerk when A1 was the Field Officer. It cannot be disputed that P.W.2 cannot give any direct evidence about the alleged entry being made by A1 or any other person, as he was only successor to A1 in the Bank. Similarly, he cannot be construed as an expert witness to identify the hand writing or initial of A1 in the Register. Even in the cross-examination, he has categorically admitted that from his personal knowledge, he could not adduce evidence about the occurrence. He could not say as to who had signed letter, dated 11.03.1980, stating the Drawing Power as Rs.1,00,975.57 and put the initial of the Field Officer. He has further stated in his evidence that he did not aware anything about the memo issued either to A1 or A2 till he took over the charge as Filed Officer after A1.
24. The prosecution witness has admitted that there was internal audit by Circle Officer, Regional Officer and others every year. According to him, sanction limit is the maximum permissible drawing power limit and if the Drawing Power mundy and the bill put together fix the sanction limit and withdrawal will be restricted only to the extent of the sanction and according to him withdrawal power sanction limit are fixed by the higher level officers and not by A1. He has further deposed that there were different types of business in Avaniapuram area and the advance made in the case on the basis of primary and collateral securities. The Bank has got every right to proceed and the primary and collateral security of the borrower of the loan. Admittedly, in the instant case, there was no loss incurred by the bank and the amount borrowed by the account holders were repaid and discharged. The alleged offence is that the account holders who have cash credit facilities having hand and clove with the Filed Officer / A1, thereby corrections were made in the drawing power register by A1 and A2, in order to extend the limit for A3 and A2 was already acquitted.
25. Learned counsel appearing for the appellants drew the attention of this Court to the defendant's documents Ex.D1 to D11 marked in CC.No.10 of 1986 and contended that even prior to 1981, A3 and others were permitted to draw more than the allowed drawing limit. According to him, merely based on some correction found in the figure, in spite of the fact there was no corresponding correction in words of the Register and the Register was maintained by some other officials of the Bank, criminal liability could not be fixed on appellant/A1. P.W.3, who was Administrative Officer of the bill section of the Bank has deposed that on seeing the books of account he could say that the drawing power of A3 was increased by putting "1" in lakhs column of the Register. In the cross-examination he would say that the amount in words column showed a different figure and he denied that he could have added "1" in the amount column.
26. As per the evidence of P.W.3, the figure in number was corrected by putting "1" on the left side of figure in the lakhs column, however, no corresponding correction was made in words. As contended by the learned counsel appearing for the appellant it cannot be stated that the contradictory version in figure and words was initialled by Field Officer / A1, in the absence of any acceptable evidence. It is stated that P.W.4 is a retired bank employee, who was attached to A1 as Unit Clerk in the year 1982. As per Ex.P.4, the drawing power limit was Rs.4 lakhs authenticated by A1 on 13.12.1981 and on the Ledger, corresponding entry was not made by him on 31.12.1981. However, in the cross- examination, the said witness has stated that no authentication was made on 31.12.1981 in the Combined Drawing Power Register Ex.P.3. According to him, he succeeded A2 Jothilal and as per the prosecution case during the relevant period, only A2 was attached A1 as Lower Division Clerk. Therefore, the evidence of P.W.4, that he had not made the entry and joined only after 08.02. 81 has to be considered. However the witness has deposed that it was authenticated by A1, which cannot be legally accepted. P.W.5 was working as clerk in Madurai City Branch from 1981 to 1984 and according to him, the entry dated 03.04.1984 was only made by him, but "1" in the lakhs column in figure was not made by him, it was initiated subsequently by some other person. Bill Section Officer authenticated the balance column by making initial.
27. It is not in dispute that the bill section officer was not the appellant / A1. According to him, the Field Officer could have authenticated by putting his initial. But as per the evidence of P.W.2 the word column was not corrected, as per the figure, that was corrected and further, in the cross- examination he has stated that the authentication could have been done by the Filed Officer only after verifying the amount in the words column and therefore, the aforesaid evidence adduced by P.W.5 is contradictory and also based on assumption. P.W.6 Scientific Officer Grade I, Central Forensic Science Officer, Forensic Laboratory had received the disputed document with covering letter Ex.P.9 (series). Hardansingh, Scientific Officer, who gave his opinion Ex.P.10 was admittedly not examined by the prosecution for the reasons best known to them. In the cross-examination, P.W.6 categorically stated that the officer, who gave opinion could have direct knowledge and inference for providing opinion. It cannot be disputed that evidenciary value has to be decided by way of cross-examination, otherwise the untestified evidence cannot be taken as substance evidence, as ruled by the Hon'ble Apex Court in various decisions. The genuineness and validity of the expert opinion could have been testified by way of cross-examination and also need corroborative evidence. In the absence of cross-examining the expert, who had given his opinion and also not corroborated has no evidenciary value to convict a person.
28. In the instant case, the expert opinion was marked through some other witness and it relates to the alleged adding of "1" on the leftern side of the figure in the Register referred to above. In the above circumstances, based on the expert opinion Ex.P.10, in the absence of examination of the concerned expert, the same cannot be decided against the accused.
29. When a prosecution case is based on circumstantial evidence, it has to be established by proving all connecting chain of actions, which are required to establish the guilt against the accused beyond reasonable doubt. In the instant case, P.W.1 is the sanctioning authority only to prosecute A2 and there was no sanction for prosecuting the appellant / A1. P.W.2, who was only a successor of A1, who is not competent to adduce evidence on the entry made by the appellant / A1 and further he has not an expert to give his opinion about the entry, that was made prior to his assuming charge as a Field Officer. P.Ws.3 to 5 have not given any direct evidence to establish that correction were made either in the Cash Credit Ledger or Combined Drawing Power Register or in any other Register relating to Cash Credit facilities in favour of A3 over and above the limit. In the instant case, P.W.6 is admittedly not the expert, who had given opinion and the expert, who had given the opinion was not examined, hence, the expert opinion is not testified by way of cross examination, hence, the evidence of P.W.6 cannot be relied upon in the absence of any corroborative evidence.
30. Learned counsel for the appellants also drew the attention of this Court to two decisions of this Court rendered in Ponnusamy Vs. H.H.The Prince of Arcot Endowments, Tiruchirapalli reported in (2004)2 M.L.J 138, wherein this Court has held that "question of law though not pleaded can be raised even at the appellate stage".
31. It is a settled proposition of law that question of law, though not pleaded, be permitted to be raised even at the appellate stage. It has been held by the Hon'ble Apex Court in the decision referred to above that without sanction from the competent authority as per Section 6 of P.C. Act, no criminal proceeding could be initiated and in the absence of legal sanction being accorded by the competent authority to initiate criminal proceeding, the same was ordered to be quashed. In the instant case, it has to be admitted that no sanction was accorded for prosecuting A1 / field officer. As per the prosecution case, the appellant A1 was dismissed from service, hence, no sanction was required. However there is no material available to show that the appellant / A1 was dismissed from service and the Investigating Officer has admitted in his cross-examination that no supporting material was produced by the prosecution to show that there was any departmental proceeding against the appellant / A1, hence, without any departmental proceeding, legally it could not be possible to dismiss the appellant / A1 from service.
32. As contented by the learned counsel for the appellant / A1, it is only question of law in the absence of any material on the side of the respondent, it cannot be presumed that the appellant / A1 had been dismissed from service, hence, sanction was not obtained. In the light of the decisions rendered by the Hon'ble Apex Court, sanction by the competent authority is a pre-requisite to the appellant / A1. There is no acceptable evidence to show that the appellant / A1 had made the correction by putting one or made any counter sign in the cash credit ledger or Combined Drawing Power Register or any other Register, so as to help A3. Hence, the alleged expert opinion cannot be construed as a valuable piece of evidence in the absence of examining the expert as a witness. The complaint dated 06.05.1981 marked as Ex.P.10 was given by Circle Vigilance Officer one J.K.V.Paul, however, for the reasons best known to the respondent, the complainant was also not examined as a witness. In this connection, the Hon'ble Supreme Court in A.Subair vs. State of Kerala reported in (2009)6 SCC 587 has ruled that as there was no satisfactory explanation by the investigating officer as to why the complainant was not examined, hence, it could not be possible to accept it as substantial evidence to prove the factum of lodging the complaint and accordingly, the Hon'ble Apex Court held that the accused is entitled to be acquitted.
33. In the instant case, there is no explanation from the investigating officer as to why the complainant, Circle Vigilance Officer, J.K.V.Paul was not examined as a witness. On the aforesaid facts and circumstances, I am of the view that the alleged guilt against the appellant / A1 is not established by the prosecution beyond a reasonable doubt. It is also seen from the prosecution evidence that the account holders / A3 in both appeals were permitted to draw the facility above the drawing power limit fixed by the bank. It is seen that even in earlier occasions, the dues were settled by the account holder / A3. Though there were internal audit, the said factum was not brought to light and there is no acceptable evidence to convict the appellants / accused. Hence, I am of the view that the charges levelled against A1 and A3 in all the cases have not been established by the prosecution beyond reasonable doubt.
34. On the aforesaid fact and circumstances, benefit of doubt is given in favour of the Appellants / accused 1 and 3 and the appeals in CRL.A.(MD)Nos.68, 118 to 121 and 150 of 2002 are allowed and the conviction and sentence imposed on the appellants / A1 and A3 are set aside and the bail bond executed by the appellants / A1 and A3 stand cancelled, if any fine amount was paid by them, the same shall be refunded to the concerned appellant / accused.
skn / tsvn To The Principal Special Judge for CBI case Madurai.