Madras High Court
Nallappa Gopalswamy vs State on 20 March, 2018
Author: P.N.Prakash
Bench: P.N.Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.03.2018
Reserved on 06.02.2018
Pronounced on 20.03.2018
CORAM
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
Crl.A.(MD)Nos.44 of 2004 and 76 of 2004
Nallappa Gopalswamy
: Appellant/Accused No.1 in Crl.A.[MD].No.44 of 2004
1.Rahamathulla
2.M/s.Evershine Air Travels Private Limited,
Represented by A-2 Rahamathulla.
: Appellants/Accused Nos.2 and 3 in Crl.A.[MD].No.76 of 2004
Vs.
State, rep by
Inspector of Police, CBI, BS & FC,
Bangalore. : Respondent/Complainant
PRAYER: Criminal Appeals are filed under Section 374[2] of the Code of
Criminal Procedure against the Judgment dated 17.08.2004, made in C.C.No.7 of
2000, on the file of the learned Principal Special Judge for CBI Cases,
Madurai.
Crl.A.[MD].Nos.44 of 2004:-
!For Appellant : Mr.R.Anand
^For Respondent : Mr.N.Ashok Kumar Gowtham
Special Public Prosecutor
Crl.A.[MD].No.76 of 2004:-
For Appellants : Mr.A.Padmanabhan
For Respondent : Mr.N.Ashok Kumar Gowtham
Special Public Prosecutor
:COMMON JUDGMENT
On the complaint dated 23.11.1998 [EX-P145] given by B.Ramachandra Rao [PW-19], the Chief General Manager, State Bank of India, Chennai, the Superintendent of Police, CBI registered a case in R.C.No.6[E]/1998, on 25.11.1998, against Nallappa Gopalswamy [A1] and Rahamathulla [A2] and after completing the investigation, filed a final report in C.C.No.7 of 2000, before the Special Court for CBI Cases, Madurai, against accused Nos. 1 to 3 for the offences under Sections 120-B r/w 409, 420, 467, 468 and 471 IPC and Sections 13[2] r/w 13[1][C] & [d] of the Prevention of Corruption Act, 1988 and substantive offences under Sections 409, 467, 468, 471 r/w 467 IPC and Section 13(2) r/w 13(1)(c) : 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 against Gopalswamy [A-1] and Section 420 IPC against Rahamathulla [A2] and M/s.Evershine Air Travels Private Limited [A3].
2. On the appearance of the accused, they were furnished with the copies of the relied upon documents under Section 207 Cr.PC., and the trial Court framed eight charges against them for the aforesaid offences and when questioned, they pleaded not guilty. In order to prove the case, the prosecution examined 24 witnesses and marked 183 exhibits. When the accused were questioned about the incriminating circumstances appearing against them under Section 313 Cr.PC., they denied the same and gave some explanation, which will be discussed later. One witness, Venkataraman [DW-1] was examined on behalf of the accused and three exhibits were marked. After hearing either side and considering the evidence on record, the Trial Court, by the impugned judgment in C.C.No.7 of 2000, dated 17.08.2004, convicted the accused and sentenced them as follows:-
Accused Section of Law Sentence of imprisonment Fine amount 1 120-B r/w 409, 420, 467, 468 and 471 IPC and Sections 13[2] r/w 13[1][C] & [d];
To undergo rigorous imprisonment for two years. Rs.2,000/- in default to undergo simple imprisonment for three months for each offence. [Total fine amount Rs.14,000/-].
13(2) r/w 13(1)(c); & (d); 13(2) r/w 13(1)(d) r/w 15 of the Prevention of Corruption Act, 1988 and 409, 467, 468, and 471 r/w 467 IPC.
2.
120-B r/w 409, 420, 467, 468 and 471 IPC and Sections 13[2] r/w 13[1][C] & [d] of the Prevention of Corruption Act, 1988 and 420 IPC. To undergo rigorous imprisonment for two years.
Rs.5,000/- in default to undergo simple imprisonment for three months for each offence. [Total fine amount Rs.10,000/-].
3120-B r/w 409, 420, 467, 468 and 471 IPC and Sections 13[2] r/w 13[1][C] & [d] of the Prevention of Corruption Act, 1988 and 420 IPC. No sentence Rs.5,000/- in default to undergo simple imprisonment for three months for each offence. [Total fine amount Rs.10,000/-].
The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellants/accused Nos.1 to 3 are before this Court.
3. Heard Mr.R.Anand, learned counsel appearing for the first accused and Mr.A.Padmanabhan, learned counsel appearing for the accused Nos.2 and 3 and Mr.C.Ashok Kumar Gowtham, learned Special Public Prosecutor appearing for the respondent.
4. The case of the prosecution is that Gopalswamy, [A1], was the branch Manager of State Bank of India, Rock Fort City Branch, Trichy from September 1995 to 08.08.1998; that he obtained a Blank Special Term Deposit Receipt Book bearing Nos.023251 to 023300 from S.Ravichandran [PW-1], Accountant of Labhai Kudikadu Branch of State Bank of India, by submitting an acknowledgement letter dated 25.07.1997 [EX-P3], in which, the signatures of Vijayanarayanan [PW-2], Assistant Manager [Accounts] and R.K.Vasudevan [PW- 6], Assistant Manager [Cash] were forged; that Rahamathulla [A2] was running M/s.Evershine Air Travels Private Limited and had opened a current account bearing No.130, on 19.01.1996, [EX-P5], in State Bank of India, Rock Fort City Branch, Trichy, where Gopalswamy [A1] was the Branch Manager; that Gopalswamy [A1] sanctioned business loans and overdraft facilities to M/s.Evershine Air Travels Private Limited [A3], run by Rahamathulla [A2];
4.2. that Mohammed Nasar [PW-5] and his brother Halifullah were having NRNR accounts in the branch; that Mohammed Nazer [PW-5] and his brother Halifullah were having a number of fixed deposits, each valued for not less than Rs.10,00,000/- [Rupees Ten Lakhs only] payable with interest at the rate of 10% at the time of maturity; that Gopalswamy [A1] used the Blank fixed deposit Receipts Nos.023251 to 023300; that were obtained by him from Labhai Kudikadu Branch, as stated above and created fresh fixed deposit receipts in the name of Mohammed Nasar [PW-5] and his brother Halifullah for various amounts; that he raised a Sundry Loan No.13 of 2011, for Rs.13,00,000/- [Rupees Thirteen Lakhs only] for M/s.Evershine Air Travels Private Limited [A3] and created a lien on the four fixed deposit receipts and transferred the sum of Rupees Thirteen Lakhs to the Current Account No.130 of M/s.Evershine Air Travels Private Limited;
4.3. that Gopalswamy [A1] created a letter [EX-P30] as if it was written by Mohammed Nasar [PW-5] to grant a loan of Rs.16,00,000/- [Rupees Sixteen Lakhs only] on his NRNR Special Term Deposit of Rs.18,49,800/- [Rupees Eighteen Lakhs and Forty Nine thousand and Eight Hundred only] and adjust the loan to the existing loan account of M/s.Evershine Air Travels Private Limited [A3] and credit the balance amount into the account of M/s.Evershine Air Travels Private Limited [A3];
4.4. that one N.C.Adtani and Daulat C.Adtani were having fixed deposits to the tune of Rs.17,21,261/- [Rupees Seventeen Lakhs and Twenty One Thousand and Two Hundred and Sixty One only], vide fixed deposit receipt No.436611, dated 30.08.1997, [EX-P50], which was also an NRNR account; that Gopalswamy [A1] created bogus fixed deposit Receipts bearing No.023258 [EX-P60] for Rs.17,21,261/- [Rupees Seventeen Lakhs Twenty One Thousand Two Hundred and Sixty One only] in the name of N.C.Adtani and Daulat C.Adtani with the help of the Blank fixed deposit receipts in his custody; that he raised a sundry loan of Rs.14,00,000/- [Rupees Fourteen Lakhs only] against the forged security deposit by forging the request letters of the account holder and transferred the amount into the credit of M/s.Evershine Air Travels Private Limited [A3] on 02.09.1997 and reduced the liability of M/s.Evershine Air Travels Private Limited [A3] from Rs.67,54,425.40 to Rs.53,54,425.40]; that for sanctioning the loan of Rs.14,00,000/-, Gopalswamy [A1] forged a request letter demand promissory note [EX-P35] and demand promissory note delivery letter [EX-P36] by forging the signatures of N.C.Adtani and Daulat C. Adtani; that the bank had to pay a maturity amount of Rs.16,07,080/- to N.C.Adtani and Daulat C.Adtani.
5. Similarly, it is alleged that Gopalswamy [A1] had created forged fixed deposit Receipts in the name of M/s.Kikoo Mohan Nainani, who also had NRNR Deposit accounts with the branch and on the strength of the forged fixed deposit, he raised a sundry loan of Rs.30,00,000/- [Rupees Thirty Lakhs only] in Sundry Loan No.14 of 2004 in the name of M/s.Kikoo Mohan Nainani against the forged deposit receipts and transferred the amount to the Current Account of M/s.Evershine Air Travels Private Limited [A3] on 20.04.1998; that this sundry loan was sanctioned by Gopalswamy [A1] on the strength of a forged letter [EX-P65], forged demand promissory note [EX-P66] and forged demand promissory delivery note [EX-P67];
6. that one G.B.Thadani was having NRNR fixed deposit vide original fixed deposit No.289047, [EX-P128], for Rs.2,44,78,384/-; that Gopalswamy [A1] forged a letter dated 28.04.1998 [EX-P130] purported to have been written by G.B.Thadani, asking the Branch Manager to foreclose the deposit and adjust the amount for the current account overdraft of M/s.Evershine Air Travels Private Limited [A3].
7. In fine, the sum and substance of the allegation is that they have entered into a criminal conspiracy, in which Gopalswamy [A1], being the Branch Manager, had sanctioned huge loans and overdraft facilities to M/s.Evershine Air Travels Private Limited [A3] run by Rahamathulla [A2], on the strength of forged fixed deposit receipts prepared in the name of existing NRNR depositors.
8. In other words, this can be illustrated with a simple example. In respect of NRNR deposits, the bank will have to give 10% interest to the depositor. If a loan is raised on the deposit, the bank will charge 2% more, i.e., 12% from the depositor. If a fresh loan is given to M/s.Evershine Air Travels Private Limited [A3], the interest will be around 14% to 16%. Thus, M/s.Evershine Air Travels Private Limited [A3] has been given loans, based on NRNR deposits and he will have to pay only 12% interest and not higher interest. Everything would have gone fine had not Mohammed Nasar started making enquiries and M/s.Evershine Air Travels Private Limited [A3] defaulted in making the payments, after Gopalswamy [A1] was transferred out of Rock Fort Branch.
9. The learned counsel appearing for the accused submitted that the prosecution had not examined N.C.Adtani, Daulat C.Adtani, M/s.Kikoo Mohan Nainani and G.B.Thadani and therefore, the case of the prosecution has not been proved beyond doubt.
9. At the outset, it is clear that the prosecution has proved the following basic facts beyond reasonable doubt; that Gopalswamy [A1] was the Branch Manager, State Bank of India, Rock Fort Branch, Trichy, from September 1995 to 08.08.1998; that M/s.Evershine Air Travels Private Limited [A3] was run by Rahamathulla [A2]; that M/s.Evershine Air Travels Private Limited [A3] was having current account No.130 with the State Bank of India, Rock Fort Branch; that M/s.Evershine Air Travels Private Limited [A3] was given credit facilities by Gopalswamy [A1]; that Mohammed Nasar [PW-5] and his brother Halifullah were having five NRNR fixed deposit receipts [vide EX-P10 series] for a sum of Rs.1,09,114/-; that Mohammed Nasar [PW-5] and Askar Hussain were having three NRNR fixed deposit receipts of Rs.7,08,563/-, Rs.7,68,200/- and Rs.7,08,563/- [vide EX-P13, EX-P14 and EX-19 respectively]; that N.C.Adtani and Daulat C.Adtani were having NRNR fixed deposit receipt of Rs.17,21,261/- [EX-P50]; that G.B.Thadani was having NRNR fixed deposit receipt of Rs.2,44,78,384/- [vide EX-P73]; that M/s.Kikoo Mohan Nainani was having NRNR fixed deposit receipt of Rs.49,45,750/- [vide EX-P63]. To prove the fact that the above named Non-Resident Indians were having fixed deposits, the original fixed deposit receipts have themselves been marked as exhibits, as stated above.
10. The evidence of Ravichandran [PW-1] is very important in this case. Ravichandran [PW-1] has stated that he was working as Accountant in Labhai Kudikadu Branch; that on 25.07.1997, Gopalswamy [A1] requested Labhai Kudikadu Branch over phone for blank N.R.E. STDR deposit forms; that Gopalswamy [A1] spoke to the Branch Manager of Labhai Kudikadu Branch and stated that he wanted the blank deposit forms urgently. Ravichandran [PW-1] has further stated that he asked Gopalswamy [A1] to come to the branch and collect the same, but, Gopalswamy [A1] requested him to hand over the forms at his branch. Accordingly, Ravichandran [PW-1] obtained approval of his Branch Manager and after making relevant entries in the Register Book, took blank N.R.E. STDR book bearing Nos.023251 to 023300 and handed over the same to Gopalswamy [A1] around 06.30 PM, at his office. When Ravichandran [PW-1] asked Gopalswamy [A1] to give acknowledgement for having received the forms, Gopalswamy [A1] told him that the concerned officers are not there and that they will come only in the next day and that he will obtain acknowledgement from them and give it; that Gopalswamy [A1] came to the residence of Ravichandran [PW-1] at Srirangam at 07.00 PM., on the next day [26.07.1997] and handed over a letter dated 25.07.1997 [EX-P3], acknowledging the receipt of N.R.E. STDR book bearing Nos.023251 to 023300 purported to have been signed by Vijaya Narayanan [PW-2] and R.K.Vasudeven [PW-6].
11. In the cross-examination of Ravichandran [PW-1], he was asked as to whether he verified the signatures in EX-P3 with the specimen signature of the officials available in his branch, for which, he candidly stated that he received the acknowledgement letter [EX-P3] from Gopalswamy [A1] in good faith and therefore, he did not verify the signatures in EX-P3. It was suggested to him that he had handed over N.R.E. STDR book at the residence of Gopalswamy [A1], which suggestion he denied. He also admitted that he is facing departmental action for not verifying the signature in EX-P3. Vijayanarayanan [PW-2] and R.K.Vasudevan [PW-6], in their evidence before the Court, have clearly stated that the signatures found in EX-P3 are not their signatures. The accused did not make any suggestion denying the assertion of PW-2 and PW-6.
12. From the overall reading of the entire evidence of Ravichandran [PW-1], Vijayanarayanan [PW-2] and R.K.Vasudevan [PW-6], the prosecution have proved beyond doubt that Gopalswamy [A1] had contacted Labhai Kudikadu Branch and had requested the Branch Manager to send blank N.R.E. STDR forms; that Ravichandran [PW-1] handed over the blank STDR forms bearing Nos.023251 to 023360 to Gopalswamy [A1] at his office around 06.30 PM., on 25.07.1997; that on 26.07.1997, Gopalswamy [A1] gave an acknowledgement letter dated 25.07.1997, [EX-P3], purported to have been signed by Vijayanarayanan [PW-2] and R.K.Vasudevan [PW-6], but, however, the signatures have been forged. Dehors the report of Handwriting Expert [EX-P180 to EX-P182], the prosecution have established the factum of forgery of EX-P3 beyond all reasonable doubt. EX-P3 was recovered from the office of the Branch Manager, Rock Fort Branch, Trichy City and therefore, the burden under Section 106 of the Indian Evidence Act, 1872, is on Gopalswamy [A1] to prove the contrary.
13. The foundation of the prosecution case rests upon the receipt of blank STDR forms bearing Nos.023251 to 023360 by Gopalswamy [A1] from Labhai Kudikadu Branch, because, Vijayanarayanan [PW-2] and R.K.Vasudevan [PW-6], who were the Assistant Manager [Accounts] and Assistant Manager [Cash] working under Gopalswamy [A1] at the relevant point of time, were not aware that Gopalswamy [A1] had obtained these blank forms from Labhai Kudikadu Branch. The allegation of the prosecution is that, these blank N.R.E. STDR forms were used by Gopalswamy [A1] to create fixed deposit receipts in the name of existing NRE depositors and use the forged fixed deposit receipts for giving overdraft facilities to M/s.Evershine Air Travels Private Limited [A3].
14. We may now analyze the evidence of Vijayanarayanan [PW-2]. Vijayanarayanan [PW-2] was working as the Assistant Manager [Accounts] in Rock Fort City Branch, Trichy, under Gopalswamy [A1] from June 1997 to October 1998. He has clearly stated in his evidence that he knows the handwriting and signature of Gopalswamy [A1]. This has not been refuted by the accused in the cross-examination. Vijayanarayanan [PW-2] has spoken in detail about the account opened by M/s.Evershine Air Travels Private Limited [vide EX-P5] and has stated that the handwriting in the account opening form is that of Gopalswamy [A1]. Ledger extract of the Current Account No.130 of M/s.Evershine Air Travels Private Limited has been marked as EX-P6. In EX-P6, endorsements have been made regarding the enhancement of overdraft limits against the STDR forms of Mohammed Nasar [PW-5]. The endorsements in red ink have been separately marked as EX-P7 and Vijayanarayanan [PW-2] has stated that the said endorsements have all been made by Gopalswamy [A1]. This has not been refuted by the defence.
15. The Court perused EX-P6 and the endorsement [EX-P7] made thereon. EX-P7 [endorsement] clearly speaks about the over draft limit given to M/s.Evershine Air Travels Private Limited on the fixed deposit of Mohammed Nasar [PW-5]. Vijayanarayanan [PW-2] has also spoken about the cheque leaves Nos.23301 to 23350 that were issued by M/s.Evershine Air Travels Private Limited [A3] and various withdrawals made by M/s.Evershine Air Travels Private Limited [A3] from their accounts. EX-P10 series are five original STDR receipts, each for a sum of Rs.1,09,114/- given in the name of Mohammed Nasar [PW-5].
16. Mohammed Nasar, who was examined as PW-5, has stated that EX-P10 series were the fixed deposit receipts issued to him. While so, Vijayanarayanan [PW-2] has spoken about the parallel bogus STDR receipts bearing No.023266, for a sum of Rs.10,66,500/- [EX-P43] and No.023267 for Rs.10,66,500/- [EX-P44] and that the original STDR receipt Nos.289041 for Rs.10,66,500/- [EX-P45] and No.289042 for Rs.10,66,500/- [EX-P46].
17. Thus, this Court perused EX-P43 to EX-P46 and found that EX-P43 and EX-P44 STDR numbers relate to STDR forms obtained by Gopalswamy [A1] from Labhai Kudikadu Branch on 25.07.1997, but, whereas EX-P45 and EX-P46 have been issued by the Branch to Habibullah and Mohammed Nasar [PW-5] and Mohammed Nasar and Askar Hussain for Rs.10,66,500/- each.
18. Mohammed Nasar [PW-5] has stated that he is a resident of Lalpet and that his brothers, by name, Halifullah and Askar Hussain are the residents of Malaysia; that he knew Gopalswamy [A1], the Branch Manager of State Bank of India; that he opened an account in the branch and transferred his fixed deposit amounts to Gopalswamy [A1]'s branch and that EX-P10 series were the original fixed deposit receipts given by the State Bank of India, Rock Fort Branch in favour of Mohammed Nasar [PW-5] and his brother Mohammaed Ayub each for a sum of Rs.1,09,114/-. He has very clearly stated that he has not written EX-P11 letter addressed to the Branch Manager asking him to foreclose the deposits. In EX-P11, there is a red ink entry, which is as under:-
"The TDRS were under lien to current account No.130 till 30.03.1997 and thereafter, the lien was lifted on the substitute of security from 83.25 lakhs deposited on 31.03.1997".
19. This endorsement in red ink has been made by Gopalswamy [A1], as could be seen from the evidence of Vijayanarayanan [PW-2], which has not been denied by Gopalswamy [A1]. From the records of the bank, Vijayanarayanan [PW- 2] has spoken about the loan account No.130 given to M/s.Evershine Air Travels Private Limited [A3]. Thus, the endorsement made in EX-P11 clearly shows that the deposits of Mohammed Nasar [PW-5] were under lien to the loan Account No.130 of M/s.Evershine Air Travels Private Limited [A3] and the evidence of Mohammed Nasar [PW-5] shows that he had never authorized the Branch Manager to create lien on his fixed deposit receipts.
20. Vijayanarayanan [PW-2] has stated that Mohammed Nasar [PW-5] had two fixed deposits of Rs.9,24,900/- each [vide EX-P22 and EX-P24] and the reverse of EX-P22 and EX-P24, it is stated that the deposits are kept for lien for a loan. The signature purported to be that of Mohammed Nasar [PW-5] was found in the reverse of EX-P22 and EX-P24. Mohammed Nasar [PW-5], in his evidence, has clearly stated that ?these signatures purported to be mine found on the reverse of EX-P22 and EX-P24 are not mine". "I had not raised any loan on the strength of EX-P22 and EX-P24?. Mohammed Nasar [PW-5] has further stated as follows:
?EX-P29 is the demand loan Debit slip for Rs.13 lakhs (purported to me). The signature found on the reverse of EX-P29 is not mine. I had not availed any Sundry Loan as stated in EX-P29. EX-P30 is the letter purported in my name representing Evershine Air Travels but I had not written such letter and signature found in EX-P13 is also not mine. I had no connection with A3 Evershine Air Travels.?.
21. Similarly, Mohammed Nasar [PW-5] has spoken about two STDRs for Rs.10,66,500/- each, but, whereas, there are identically two other fixed deposit receipts for the same amounts in the name of Mohammed Nasar [PW-5] about which, he was not aware of. As stated above, [EX-P43], STDR bears No.023266 for Rs.10,66,500/- in favour of Mohammed Nasar [PW-5] and [EX-P44], STDR bears No.023267 for Rs.10,66,500/- in favour of Mohammed Nasar [PW-5], but, however, the original STDRs in favour of Mohammed Nasar [PW-5] are [EX- P45], STDR No.289041 for a sum of Rs.10,66,500/- and [EX-P46], STDR No.289042 for a sum of Rs.10,66,500/-.
22. Mohammed Nasar [PW-5], in his evidence, has clearly stated that the entries made in the reverse of STDR, keeping them as lien for the loan of M/s.Evershine Air Travels Private Limited were not made by him at all. Mohammed Nasar [PW-5] has written a letter [EX-P88], dated 24.08.1998, to the Vigilance Department, State Bank of India, requesting them to confirm about the genuineness of the deposits made by him on 02.11.1998. He has further stated as follows:-
"In the meantime, Manager Shri Gopalswamy has given loans to somebody against my deposits and promised to return my original deposits after closing the loans soon. It is getting delayed. I am bringing this to your information".
23. Mohammed Nasar [PW-5] has clearly stated that he has nothing to do with M/s.Evershine Air Travels Private Limited and that he does not know them at all. In the cross-examination, the following suggestion has been put, which is as under:-
?I deny that under such undertaking and trust only A1 had advanced loans on the strength of my STDRs to third parties on my oral instructions. I further deny that as and when I frequented Trichy I visited R.F.C. branch and executed the relevant documents in respect of loan transaction.?
24. Therefore, Gopalswamy [A-1] has not suggested that he had not created lien on the fixed deposits of Mohammed Nasar [PW-5] and that someone had created lien. His suggestion is that on the oral instructions of Mohammed Nasar [PW-5], he had created the lien on the fixed deposit for the loans of M/s.Evershine Air Travels Private Limited.
25. To contend that on the oral instruction of a depositor, his deposits, running to lakhs and lakhs of rupees, were kept as lien for the loan of a third party defies credulity. Even during cross-examination of Mohammed Nasar [PW-5] by Rahamathulla [A2] and M/s.Evershine Air Travels Private Limited [A3], he has also clearly stated that his family was running A.R.Transport and they had nothing to do with M/s.Evershine Air Travels Private Limited [A3]. Therefore, this Court has no reason to reject the evidence of Ravichandran [PW-1] and Mohammed Nasar [PW-5] and this Court has no hesitation in holding that the prosecution have proved beyond doubt the fact that Mohammed Nasar [PW-5] had maintained NRNR fixed deposit receipts [EX-P10 series] in State Bank of India, Rock Fort Branch, Trichy City; that Gopalswamy [A1] had created bogus FDR receipts EX-P43 and EX-P44 with the help of the blank forms that were in his custody; that Gopalswamy [A1] retained the original FDR receipts EX-P45 and EX-P46 belonging to Mohammed Nasar [PW-5] with him; that Gopalswamy [A1] used the fixed deposit receipts of Mohammed Nasar [PW-5] for giving overdraft facilities to M/s.Evershine Air Travels Private Limited [A3]; that money had gone into the account of M/s.Evershine Air Travels Private Limited [A3] and Rahamathulla [A2] had withdrawn those amounts from time to time.
26. Vijayanarayanan [PW-2], in his evidence, has further spoken about the fixed deposit receipts of the other depositors, namely, Chimandas Adtani and Narain Doulat Chimandas [EX-P50] bearing No.436611, for a sum of Rs.17,21,261/- and the same has been marked as EX-P50. Vijayanarayanan [PW-2] has signed in EX-P50. However, there is a parallel fixed deposit receipt bearing No.023258 for Rs.17,21,261/- in the name of Adtani Narain Chimandas and Doulat Chimandas Adtani. It is obvious that EX-P60 has been made with the blank forms available with Gopalswamy [A1], since it bears the number 023258.
27. Vijayanarayanan [PW-2] has further spoken about the fixed deposit receipts of M/s.Kikoo Mohan Nainani bearing No.484062 for Rs.1,25,000/- [EX- P61] and FDR No.289011, for Rs.49,45,750/- [EX-P63]. Loans have been raised based on EX-P61 and EX-P63, on the strength of a letter [EX-P65] purported to have been given by M/s.Kikoo Mohan Nainani, instructing the Branch Manager to credit the amount to the account of M/s.Evershine Air Travels Private Limited [A3]. Accordingly, the amount has been credited into the account of M/s.Evershine Air Travels Private Limited [A3]. Vijayanarayanan [PW-2] has also spoken about the NRNR fixed deposit receipt No.289001 for Rs.2,44,78,384/- in favour of G.B.Thadani [EX-P73]. There is a parallel fixed deposit receipt bearing No.023257, for Rs.2,44,78,384/- in the name of G.B.Thadani [EX-P74].
28. It is obvious to this Court that EX-P74 has been prepared with the blank STDR form, that was obtained by Gopalswamy [A1] from Labhai Kudikadu Branch. R.K.Vasudevan [PW-6], who was the Assistant Manager [Cash] under Gopalswamy [A1], at the relevant point of time, has stated that he knows the handwriting and signature of Gopalswamy [A1], as he had worked under him and that he had not signed the letter [EX-P3], acknowledging the receipt of blank STDR form Nos.023251 to 023300 from Labhai Kudikadu Branch. R.K.Vasudevan [PW-6] has spoken about various cheques that had gone out of the account of M/s.Evershine Air Travels Private Limited. In his cross-examination by Rahamathulla [A2], he has stated as follows:
?There is no occasion for me to say whether A2 might be aware of the transactions involving EX-P89 to EX-P95, EX-P97 to EX-P103. A2 was availing O.D facility in that branch. Any amount availed as OD will carry interest".
29. Similarly, in the cross-examination of K.S.Raman [PW-8], who was working as Assistant General Manager, [Vigilance] and who had conducted enquiry in this case, he has stated as follows:
?It is true that when the third parties who availed loans were contacted and informed of the irregularities, they volunteered to repay the amount with higher rate of interest and that they had given undertakings to that effect. The undertakings were to the extent of Rs.5.25 crores. The value of securities furnished by the loanees was to the tune of Rs.2.25 crores.
When I personally asked A1 as to why being a Senior Officer he had committed all these irregularities, he would reply that he had done all these foolish acts only with the sole intention of boosting the business and income of the branch.
A-2 and A-3 might not be aware of the alleged irregularities committed by A-1".
30. In the chief-examination of P.Jeyaprakasam [PW-10], who was working as Assistant in State Bank of India, Rock Fort Branch, Trichy, under Gopalswamy [A1], has stated as follows:
? EX-P111 and EX-P112 and EX-P113 are the chequese issued by Evershine Air Travels to A.R.Transports. All these three vouchers were filled and passed by A1.
EX-P79, EX-P80 and EX-P81 are the cheques issued by Evershine Air Travels to A.R.Transport. These three cheques were filled up and passed by A1.
EX-P114 is the cheque dated 9-5-98 issued by Evershine Air Transport to A.R.Transport. This was also filled up and passed by A1. I was examined by C.B.I".
31. Based on the aforesaid answers given by R.K.Vasudevan [PW-6], K.S.Raman [PW-8] and P.Jeyaprakasam [PW-10], Mr.A.Padmanabhan, learned counsel, contended that Rahamathulla [A2] had no knowledge about the alleged irregularities committed by Gopalswamy [A1] and that he had handed over his cheque leaves also to Gopalswamy [A1] in good faith, but, whereas Gopalswamy [A1] must have done these irregularities, without the knowledge of Rahamathulla [A2].
32. The learned counsel also placed strong reliance on an unreported judgment of this Court in Crl.A.(MD)Nos.43 and 84 of 2004, dated 28.01.2010, [Nallappa Gopalswamy Vs.State] and submitted that the findings therein would equally apply in all its fours to the case at hand.
33. It is true that three FIRs were registered against Gopalswamy [A1] and three charge sheets were filed namely, C.C.Nos.6, 7 and 8 of 2000. In all the cases, Gopalswamy [A1] was shown as 'A1' and the beneficiaries were shown as the co-accused. The trial Court conducted trial in all the three cases and convicted and sentenced Gopalswamy [A1] and the beneficiaries, by individual judgment dated 28.01.2010. Appeals filed against the judgment in C.C.No.8 of 2000 were numbered as Crl.A.[MD]Nos.43 and 84 of 2004. They were heard by this Court on 28.01.2010 and the conviction was confirmed with regard to Gopalswamy [A1], but, however, this Court has acquitted the borrower on the ground that they had come forward to make the payments and that they were not aware of the wrong doings of Gopalswamy [A1].
34. On facts, this Court had found that there was no evidence as against the borrowers in that case and therefore, this Court had thought it fit to acquit the beneficiaries in that case. However, in this case, there are sufficient materials to show that there were sudden booms into the account of M/s.Evershine Air Travels Private Limited [A3] run by Rahamathulla [A2]. To say that Rahamathulla [A2] was oblivious of the sudden influx of huge amounts into the account of his company defies logic. The evidence of Vijayanarayanan [PW-2] clearly says that Rahamathulla [A2] has withdrawn amounts from his account from time to time and to say that Rahamathulla [A2] was under the misconception that some Divine angels were depositing amounts into his account for him to freely withdraw will not find acceptance even by the guile.
35. The stray paragraphs from the cross-examination of the witnesses, extracted above, cannot have the effect of obliterating the documentary evidence to show that Gopalswamy [A1] has transferred the loans raised on bogus fixed deposit receipts into the account of M/s.Evershine Air Travels Private Limited [A3] and Rahamathulla [A2] has used the amounts.
36. Mr.R.Anand and Mr.A.Padmanabhan, learned counsel appearing for the accused Nos.1 to 3 brought to the notice of this Court the following answers given by K.S.Raman, the Assistant General Manager, [Vigilance] [PW-8], who conducted the initial enquiry, which is as under:-
? It is true that when the third parties who availed loans were contacted and informed of the irregularities, they volunteered to repay the amount with higher rate of interest and that they had given undertakings to that effect. The undertakings were to the extent of Rs.5.25 crores. The value of securities furnished by the loanees was to the tune of Rs.2.25 crores.
When I personally asked A1 as to why being a Senior Officer he had committed all these irregularities, he would reply that he had done all these foolish acts only with the sole intention of boosting the business and income of the branch.
A-2 and A-3 might not be aware of the alleged irregularities committed by A-1?.
37. Mr.R.Anand, learned counsel appearing for the first accused submitted that Gopalswamy [A1] had unblemished record of 27 years and had not derived any pecuniary advantage and that he had this in the interest of increasing the business of the bank.
38. Mr.A.Padmanabhan, learned counsel appearing for the second and third accused submitted in his characteristics style that ?the conspiracy was not intended to impoverish the bank, but, only to enrich the bank.?
39. This Court is not able to fathom as to how the interest of the bank will be served by forging the signatures of depositors and raising loans on their deposits without their consent?. If the depositors come to know about this, there will be a run in the bank, because, the very foundation of the banking system is the faith of the customer that his money is in safe with the banker.
40. Mr.A.Padmanabhan, learned counsel appearing for the second and third accused, submitted that the entire loan amount has been repaid and there were no dues as-on-today to the bank. The answer given by K.S.Raman [PW-8] that when the third parties were contacted and informed of their irregularities, they volunteered to repay the amount is a circumstance, which does not exonerate them, but, squarely incriminates them. Had Rahamathulla [A2] not known about the loan sanctioned to him on the basis of forged deposits, his first reaction would have been that he is not liable to make any payment, because, he had not availed of any loan. On the contrary, it is seen from the evidence of Vijayanarayanan [PW-2] that in March, 1998, the branch received a letter from M/s.Kikoo Mohan Nainani and two others from abroad that there are some irregularities going on in the branch and he brought it to the notice of his superiors and only thereafter, the enquiry began by Mohammed Abukalam [PW-13], the Administrative Officer of the branch. Thus, when the enquiry began, the cat came out of the bag.
41. Mr.R.Anand, learned counsel appearing for the first accused, submitted that the reports of the handwriting expert [EX-P180 to EX-P182] are inadmissible in evidence, inasmuch as he Handwriting Expert was not examined as witness and his report was marked only through the Investigating Officer.
42. There is sufficient force in the submission of Mr.R.Anand, learned counsel, because, in the year 2000, Government Examiner of Questioned Documents, Hyderabad, was not part of the Central Forensic Science Laboratory and therefore, their report will not come within the sweep of Section 293 Cr.PC.. The report of the handwriting expert is an opinion relevant under Section 45 of the Indian Evidence Act, 1872 and is only a corroborative piece of evidence. Even if that report is kept aside, there are overwhelming materials to show that Gopalswamy [A1] had stealthily obtained the blank STDR receipts from Ravichandran [PW-1] and had issued the acknowledgement [EX-P3] on the next day, which has not been signed by Vijayanarayanan [PW-2] and R.K.Vasudevan [PW-6]. The evidence of Vijayanarayanan [PW-2] and R.K.Vasudevan [PW-6] have not been contradicted at all on this aspect.
43. Similarly, Mohammed Nasar [PW-5] has very clearly stated that he had not raised any loan on his fixed deposit receipts, but, whereas the evidence on record shows that there are two parallel fixed deposit receipts running in his name, namely, EX-P43 EX-P44 and EX-P45 and EX-P46. Similarly, for the other deposit holders also, two parallel deposit receipts are running and they were made during the tenure of Gopalswamy [A1]. Thus, it is for Gopalswamy [A1] to explain as to how two deposit receipts for the same person, but, with two different numbers had come into being.
44. The prosecution have examined K.C.Raut [PW-20], the General Manager, State Bank of India, who gave sanction [EX-P146], dated 01.12.2000, under Section 19 of the Prevention of Corruption Act 1988 and the sanction to prosecute Gopalswamy [A1] has been duly proved. Except the suggestion that it was given without proper application of mind, the defence was not able to make any serious dent to the sanction order.
45. Mr.R.Anand, learned counsel appearing for the first accused submitted that the trial Court had convicted Gopalswamy [A1] and sentenced him to undergo rigorous imprisonment for two years in all the three cases namely, C.C.Nos.6, 7 and 8 of 2000 and had directed that the sentences should run concurrently. He submitted that in C.A.(MD)No.43 of 2004, filed against C.C.No.8 of 2000 by Gopalswamy [A1], the conviction was confirmed, but, however, the sentence was reduced to one year and that Gopalswamy [A1] had undergone the one year sentence. Thus, he prayed that the sentence undergone by Gopalswamy [A1] in C.C.No.8 of 2000 may be set off in this case also, in the event of this Court confirming the conviction.
46. Mr.A.Padmanaban, learned counsel submitted that since Rahamathulla [A2] had paid the entire amount in the DRT proceedings, leniency may be shown to him.
47. This Court gave its anxious consideration to the submissions made by the learned counsel on either side.
48. It has been established that Gopalswamy [A1] has not only forged the signatures of the depositors, but, he has also forged the signatures of his subordinates, namely, Vijayanarayanan [PW-2] and R.K.Vasudevan [PW-6]. He has obtained the blank STDR forms from Labhai Kudikadu Branch only with the intention to create forged deposit receipts. In such view of the matter, it may not be appropriate for this Court to show leniency and set off the sentence that was undergone by him in C.C.No.8 of 2000.
49. The contention raised by Mr.A.Padmanabhan, learned counsel, that Rahamathulla [A2] and M/s.Evershine Air Travels Private Limited [A3] have repaid the entire amount during DRT proceedings can merit consideration for reducing the sentence.
50. In the result, both the Criminal Appeals in Crl.A.[MD]Nos.44, and 76 of 2004 are dismissed; the conviction imposed by the Court below against Gopalswamy [A-1] and Rahamathulla [A-2] stands confirmed;
As regards the sentence on Gopalswamy [A-1] and Rahamathulla [A-2], the same is reduced from two years to one year rigourous imprisonment; Gopalswamy [A-1] is not entitled to any set off for the period undergone by him in C.C.No.8 of 2000, but, however, he shall undergo the sentence of one year concurrently in C.C.No.7 of 2000 with the sentence of one year in C.C.No.6 of 2000.
Bail bond executed by the accused and the sureties shall stand cancelled.
The Trial Court shall take steps to secure the accused to commit them in prison to serve the sentence.
To
1.The Principal Special Judge for CBI Cases, Madurai.
2.The Inspector of Police, CBI, BS & FC, Bangalore.
3.The Special Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.