Madras High Court
R. Seethambaram vs State Represented By on 26 March, 2018
Author: P.N. Prakash
Bench: P.N. Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.03.2018
RESERVED ON: 28.02.2018
DELIVERED ON: 26. 03.2018
CORAM
THE HON'BLE MR. JUSTICE P.N. PRAKASH
Crl A(MD) Nos. 516 of 2006, 577 and 578 of 2006
R. Seethambaram Appellant in Crl.A. No.516 of 2006
T. Palaniyappan Appellant in Crl.A. No.577 of 2006
S. Pathinettampadi Appellant in Crl.A. No.578 of 2006
vs.
State represented by
the Inspector of Police
SPE/CBI/ACB, Chennai Respondent in all Crl. Appeals
Criminal Appeals preferred under Section 374(2) of the Code of Criminal
Procedure seeking to call for the records from the Trial Court in C.C. No.8
of 2003 on the file of the Special Court for C.B.I. Cases, Madurai and set
aside the judgment of conviction and sentence dated 14.11.2006 passed
therein.
!For appellant in Mr. R. Mariappan
Crl.A. No.516 of 2006 for Mr. S. Muniyandi
For appellant in Mr. R. Mariappan
Crl.A. No.577 of 2006
For appellant in Mr. V.S. Venkatesh
Crl.A. No.578 of 2006 for Mr. K.N. Abdul Hai
^For respondent in all Mr. N. Nagendran
Criminal Appeals Special Public Prosecutor for CBI
:COMMON JUDGMENT
Since all these three Criminal Appeals arise out of the same judgment, they are being considered and decided by this common judgment.
2 These Criminal Appeals have been preferred seeking setting aside of the judgment of conviction and sentence dated 14.11.2006 passed in C.C. No.8 of 2003 on the file of the Special Court for C.B.I. Cases, Madurai.
3 Based on source information, Lourdass Ananthan, Inspector of Police, A.C.B., C.B.I. (P.W.20) registered a case in RC 18A/94 on 29.04.1994 under Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for brevity ?the PC Act?) against Pathinettampadi (A.1), Manager, Canara Bank and took up investigation of the case.
4 The crux of the allegations in the F.I.R. (Ex.P.64) was that A.1 had disbursed fictitious cattle and crop loans to 10 non-existent persons and had misappropriated an amount of Rs.1,57,500/-. After completing the investigation, Lourdass Ananthan (P.W.20) filed a final report in Special C.C. No.8 of 2003 on 03.07.2003 before the Special Court for C.B.I. Cases at Madurai against A.1, Palaniyappan (A.2), Clerk, Canara Bank, Agaram Sigoor Branch and Seethambaram (A.3), Village Administrative Officer, Keezha Perambalur Village, Perambalur Taluk, Trichy District, for the offences under Sections 120-B, 420, 468 and 471 IPC and under Sections 13(2) read with 13(1)(d) of the PC Act.
5 On the appearance of the appellants, they were furnished with the copies of the relied upon documents under Section 207 Cr.P.C. and charges for the offences under Sections 120-B r/w 197 r/w 193, 465,468,471 r/w 468 of IPC and 13(2) r/w 13(1)(d) of the PC Act were framed against them. When questioned, they pleaded 'Not guilty'.
6 To prove their case, the prosecution examined 20 witnesses and marked 64 exhibits. The appellants were questioned about the incriminating circumstances appearing against them under Section 313 Cr.P.C. and they denied the same. On behalf of the appellants, 4 witnesses were examined and 15 exhibits were marked.
7 After hearing either side and considering the evidence on record, the Trial Court, by judgment dated 14.11.2006 in C.C. No.8 of 2003, has convicted and sentenced the appellants 1 to 3 as follows:
Pathinettampadi (A.1) Provisions of law Sentence u/s 120-B r/w 197 r/w 193, 465, 468, 471 r/w 468 IPC; U/s 471 r/w 465 IPC;
u/s 420 IPC; and u/s 13(2) r/w 13(1)(d) of the PC Act One year rigorous imprisonment + fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for three months, for each of the offences. (Total fine of Rs.4,000/-) Palaniyappan (A.2) Provisions of law Sentence u/s 120-B r/w 197 r/w 193, 465, 468, 471 r/w 468 IPC; u/s 465 IPC;
u/s 468 IPC;
u/s 471 r/w 465 IPC;
u/s 420 IPC u/s 13(2) r/w 13(1)(d) of the PC Act One year rigorous imprisonment + fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for three months, for each of the offences. (Total fine of Rs.6,000/-) Seethambaram (A.3) Provisions of law Sentence u/s 120-B r/w 197 r/w 193, 465, 468, 471 r/w 468 IPC; u/s 197 r/w 193 IPC;
u/s 420 IPC; and u/s 13(2) r/w 13(1)(d) of the PC Act One year rigorous imprisonment + fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for three months, for each of the offences. (Total fine of Rs.4,000/-) The aforesaid sentences of imprisonment were directed to run concurrently.
8 Challenging the aforesaid conviction and sentence, A.1 to A.3 have preferred the present appeals.
9 Heard the learned counsel for the appellants and the learned Special Public Prosecutor for C.B.I. 10 The precis of the charges framed against the appellants is as under:
10.1 The first allegation is that A.1, A.2 and A.3 conspired to fabricate false documents in the name of three non-existent persons, S.Doraisamy, T.Rajendran and Meiazhagan to the effect that they had come to Agaram Sigoor Branch of Canara Bank on 19.03.1991 and each of them had independently applied for agricultural loan of Rs.10,000/- by submitting certain land certificates issued by A.3 to the effect that each of them owns lands of certain description in Keezha Perambalur Village, based on which, loans were sanctioned on 19.03.1991 itself and the amounts were misappropriated.
10.2 The second allegation is that A.1 and A.3 had fabricated false documents in the name of non-existent persons, Muthurangan and Sengottuvan and A.1 released cattle loans for Rs.6,000/- and Rs.3,500/- respectively on 19.03.1991 and misappropriated the amounts.
10.3 Thus, the total loss suffered by the bank on account of 5 loans was determined at Rs.39,500/-.
11 At the outset, it may be necessary to state here that A.1 examined himself as D.W.4 and gave evidence in chief stating that he had sanctioned the five loans on 19.03.1991. In the cross-examination by the C.B.I. Prosecutor, A.1 has admitted that it was he who had filled up the loan applications of all the five applicants. He explained it away by saying that, since there was no Agricultural Officer in the bank, he had taken it upon himself to fill up the loan applications of the five applicants. It is his specific case that all the five loans were sanctioned in accordance with the rules and not otherwise, as alleged by the prosecution.
12 This Court is conscious of the proposition that de hors the evidence of the accused, it should be seen whether the prosecution had satisfactorily proved the case beyond reasonable doubt.
13 The star witness in this case is Anbumalar (P.W.3), Clerk, working under A.1 and with A.2 in Canara Bank, Agaram Sigoor Branch. She was the Cashier on 19.03.2001. The loan applications and the connected documents were marked as prosecution exhibits, Exs.P.3 to P.38, through her. She has stated in her evidence that she is acquainted with the handwriting and signature of A.1 since she had worked under him. She has further spoken about the loan applications of one S. Doraisamy, T.Rajendran, Meiazhagan, Muthurangan and Sengottuvan and has also marked each of their applications and the documents relating to disbursal of loan amounts. She has categorically stated in her examination-in-chief that on 19.03.1991, the five applicants did not come to the Branch and tokens for the disbursal of cash to them were given by A.1 and that she handed over Rs.39,500/- to A.1 directly.
She was subjected to cross-examination by the appellants to show that she had violated the rules by not handing over the cash to the customers, for which, she has conceded that she had acted against the rules. However, she has also stated that she handed over the cash to A.1, since he was her superior officer. She candidly admitted in the cross-examination that the Agaram Sigoor Branch was adjudged as the best branch in the circle under the stewardship of A.1, for which, A.1 was given promotion in May 1992 and was transferred and posted to Chittoor District in Andhra Pradesh. She has further stated in the cross-examination that after A.1 left the said branch, one Vijayan succeeded him, who also left the said branch within six months and he was succeeded by one S.K.Ramasamy (not examined) and that it was the said S.K. Ramasamy who detected the irregularities and informed his higher ups, ultimately leading to the registration of the F.I.R. by the C.B.I. 14 P.W.3, in her evidence, has further stated that A.2 was on leave on 19.03.1991; however, on 20.03.1991, he came to the branch and asked her whether loans were sanctioned to five persons the previous day, for which, she replied in the affirmative and that she told him that she paid the loan amounts directly to A.1 and thereafter, A.2 went into the cabin of A.1 and she saw and heard them quarrelling in the cabin, from which, she understood that there was some problem between them. She has further deposed that two or three days later, A.1 told her that A.2 was hard pressed for funds and that is why, the five loans had to be taken for his benefit. The conduct of A.2 asking P.W.3 about the loan transactions and thereafter, going into the cabin of A.1 and quarrelling with him, is relevant under Section 8 of the Evidence Act. The defence cross-examined her extensively on this aspect by contending that she could not have seen what had transpired between A.1 and A.2 in the former's cabin, for which, she has stated that the cabin of A.1 had glass partition, through which, she saw them talking animatedly, from which, she could infer that they were quarrelling. This answer was invited in the cross-examination by the defence. Thus, there is no reason to disbelieve the evidence of P.W.3 15 It may be relevant to state here that P.W.3 was examined-in-chief on 12.12.2003 and after cross-examination on the same day, she was recalled two years later and was once again cross-examined on 20.01.2006. In order to dislodge her testimony, the appellants examined one Nagoor Khan (D.W.3), a retired officer of Canara Bank, to show that the Cashier should hand over cash only to the customers on production of tokens and that the Cashier should not hand over cash to anyone else, including the Branch Manager. Based on his evidence, the learned counsel for the appellants submitted that the testimony of P.W.3 should not be believed by this Court.
16 It is true that the rules of the bank do require that the cash should be handed over only to the customers on production of tokens. But, our own experience shows that when a valuable customer comes to the branch for the purpose of withdrawal of money, instead of waiting in a serpentine queue, he would exercise the privilege of sitting in the cabin of the Branch Manager and issue a cheque and the Branch Manager would send the cheque to the Clerk concerned to check the balance in the account and obtain cash from the Cashier, which, in turn, would be given to the customer concerned by the Branch Manager himself in his cabin. Section 114 of the Evidence Act permits this Court to presume the existence of any fact which, it thinks, is likely to have happened, regard being had to the common course of natural events in relation to public and private business. If everyone in the banking sector is a stickler of rules, India would have been a paradise by now and there would not have been any bank scams. Therefore, the explanation offered by P.W.3 that she handed over the cash to A.1 directly since he was her superior officer, commends acceptance and does not deserve rejection.
17 The prosecution have adduced both positive and negative evidence in order to show that the loanees, viz., Doraisamy, Rajendran, Muthurangan, Sengottuvan and Meiazhagan were not the residents of Keezha Perambalur Village.
18 When the loanees did not make repayment, the bank sent demand letters to the address of the loanees. The Postal Department returned the letters with the endorsement ?No such addressee?. This fuelled suspicion. In this regard, the prosecution have examined Sivaprakasam (P.W.17), Postal Delivery Agent in the Sub-Post Office, Vayalappaadi, within whose jurisdiction, Keezha Perambalur Village falls. He has stated that the letters sent by Canara Bank to Muthurangan, S/o Ambikapathy (Ex.P.29) and Sengottuvan, S/o Mayavel (Ex.P.38) were returned by him to the sender on the ground that there were no such addressees as mentioned in the covers.
19 The prosecution have also examined Sridharan (P.W.16), who was the P.A. to the Revenue Divisional Officer, Ariyalur, at the relevant point of time and who, in his evidence, has stated that the name of five persons do not find place in the electoral roll of Keezha Perambalur Village and he has also given a report (Ex.P.46) on this aspect.
20 Besides, the prosecution have examined Ramasamy (P.W.12), Village Administrative Officer, Vayalappadi, who, in his evidence, has stated that the particulars of the land holdings by Doraisamy, S/o Chellamuthu, Rajendran, S/o Thangaraju and Meiazhagan, S/o Elankannu are false and that the lands said to be owned by them actually belong to Jagadambal (P.W.8), her son Balamurugan (P.W.9), Periyasamy Mookkan (P.W.10) and Devendran (P.W.11).
21 Notwithstanding this, the prosecution have also examined P.W.4, S/o Srirangan, P.W.5, S/o Thangaraju, P.W.18, S/o Ramakkannu, Muthurangan (P.W.6), S/o Ambikapathy and Sengottuvan (P.W.7), S/o Mayavel, who have all stated that they do not belong to Keezha Perambalur Village and that they hail from adjoining villages; that they had not submitted any application either for crop loan or cattle loan to Canara Bank, Agaram Sigoor Branch. In fact, P.W.4, P.W.5 and P.W.6 have stated that they belong to Kozhiyoor Village and they know A.2 since he hails from their village.
22 P.W.5 has stated that A.2 belongs to his village, i.e., Kozhiyoor. But, in the cross-examination, when he was asked as to whether he knows A.2, he has stated that he does not know him. By this, it can be inferred that what P.W.5 actually meant was that he is not acquainted with A.2. But, this cannot be taken to mean that A.2 does not hail from Kozhiyoor Village at all.
23 Now, let us compare the name and father's name of P.Ws.4,5,6,7 and 18 with the particulars of the loanees given in the loan applications which are as under:
Doraisamy (P.W.4) S/o Srirangan of Kozhiyoor Village Doraisamy, S/o Chellamuthu of Keezha Perambalur Village ? Crop Loan application (Ex.P.5) Rajendran (P.W.5), S/o Thangaraju of Kozhiyoor Village Rajendran, S/o Thangaraju of Keezha Perambalur Village ? Crop Loan application (Ex.P.9) Muthurangan (P.W.6), S/o Ambikapathy of Kozhiyoor Village Muthurangan, S/o Ambikapathy of Keezha Perambalur village ? Cattle loan application (Ex.P.21) Sengottuvan (P.W.7), S/o Mayavel of T. Elamangalam Village Sengottuvan, S/o Mayavel of Keezha Perambalur Village ? Cattle loan application (Ex.P.30) Meiazhagan (P.W.18), S/o Ramakannu of Kozhiyoor Village Meiazhagan, S/o Elankannu of Keezha Perambalur Village ? Crop loan application (Ex.P.15)
24 On a reading of the above chart, it is obvious that the name and father's name in respect of three persons, viz., Rajendran, Muthurangan and Sengottuvan clearly tally.
25 The Investigating Officer has obtained the specimen signatures of P.W.4, P.W.5, P.W.6, P.W.7 and P.W.18 and he has also obtained sample signatures from A.2 signing as Rajendran (Ex.P.54 ? S.96 to S.105), Meiazhagan (Ex.P.55 ? S.106 to S.115), Doraisamy (Ex.P.56 ? S.116 to S.125), Muthurangan (Ex.P.62 ? S. 126 to S.136) and Sengottuvan (Ex.P.63 ? S.137 to S.146). The Investigating Officer has also collected specimen signatures and handwritings of A.1 and A.3. However, since there are no findings incriminating them in the report of the handwriting expert, the same are not discussed. The signatures so obtained from the existing five individuals and from A.2 were sent along with the questioned signatures in the specimen signature card and loan applications of the five fake loanees to Narinder Singh (P.W.19), Handwriting Expert and his report has been marked as Ex.P.47 together with the reasoning sheets.
26 It is seen from the evidence of P.W.19, Handwriting Expert, that his opinion (Ex.P.47) and supplementary opinion (Ex.P.48) were marked during his examination-in-chief on 06.05.2005 and subsequently, a petition was filed by the prosecution to permit them to mark the reasoning sheets. Examination of this witness was stopped at that juncture and after the petition was allowed, the reasoning sheets were furnished to the appellants and thereafter, the examination-in-chief of P.W.19 continued. It has been generally suggested to P.W.19 that he has not properly followed the prescribed procedure for examination of signatures and handwritings, which suggestion, he has, of course, denied. He has also been questioned about the Brewster method and it may be necessary to extract the relevant portion from his evidence.
?Yes. Brewster is expert comparison of the specimen signatures. I agree the statement that the type qualities of 14 qualities are to be noticed while examining the documents. I mentioned some but I am not specifically mentioned the Brewster method, the 14 spectors mentioned by him in my reason. But, I am mention some of the parts of features of this which were significant in my reasons.?
27 This Court shall now proceed to examine the materials adduced by the prosecution to prove the five accusations applicantwar. All the five fake loanees were not having any account in the Branch. For the first time, individual account was opened in their name on 19.03.1991; signatures in specimen signature cards were obtained; individual loan applications were obtained; and loans were sanctioned on 19.03.1991.
Loan application of Doraisamy:
28 One Doraisamy, S/o Chellamuthu of Keezha Perambalur Village has submitted a crop loan application dated 19.03.1991 (Ex.P.5) which has admittedly been filled up by A.1 and which bears the signature of S.Doraisamy in English. The specimen signature card (Ex.P.3) has the signature in English. The memorandum of agreement for agricultural loan entered into between the branch and Doraisamy has been marked as Ex.P.6. The said application is accompanied by the certificate (Ex.P.7) issued by A.3 to the effect that Doraisamy, S/o Chellamuthu is a resident of Keezha Perambalur Village and he owns 0.79.5 hectares of land in Survey Nos.221/10 and 321/6A and 6B in Keezha Perambalur Village. Doraisamy has been sanctioned a loan of Rs.10,000/- on the date of application, viz., 19.03.1991 vide Ex.P.4. On the reverse side of Ex.P.4, revenue stamp has been affixed, over which, there is the signature of Doraisamy in English. Admittedly, this loan became a Non-Performing Asset.
29 As stated above, P.W.3 has spoken about these documents and she has also stated that none by name Doraisamy came to the branch; and that she handed over cash to A.1. Since the account holder defaulted, a letter was sent to his address by post which returned unserved and the same has been marked as Ex.P.8.
30 The prosecution have examined Ramasamy (P.W.12), Village Administrative Officer of Keezha Perambalur Village who succeeded A.3 in order to show that Doraisamy, S/o Chellamuthu is not a resident of Keezha Perambalur Village and the survey numbers mentioned in the valuation, chitta and adangal certificates (Ex.P.7) belong to different persons. P.W.16, an officer from the Collectorate, has stated that in the voters' list of Keezha Perambalur Village, there is nobody by name Doraisamy.
31 The prosecution have examined P.W.8 and her son P.W.9, who have stated that the lands in Keezha Perambalur Village in Survey No.221/10, 321/6A and 321/6B belong to them and that they had not mortgaged the said properties with Canara Bank. Thus, the document (Ex.P.7) furnished by A.3 Village Administrative Officer to the effect that the said lands belong to the loanee Doraisamy is a false document.
32 The prosecution have examined one Doraisamy (P.W.4), S/o Srirangan from the nearby Kozhiyoor Village, who has stated in his evidence that he knows A.2 since A.2 is from his village, but, he (P.W.4) is not a resident of Keezha Perambalur Village and that he had not given any application for agricultural loan to Canara Bank, Agaram Sigoor Branch. On behalf of A.2, it was suggested to him that he is falsely deposing that he knows A.2, which suggestion he has denied.
33 Further, P.W.4 has signed the deposition in Tamil. Whereas, in the loan application form (Ex.P.5) and in the specimen signature card (Ex.P.3), the loanee Doraisamy has signed in English. The Investigating Officer has obtained the specimen writings of A.2 signing as Doraisamy and that has been marked as Ex.P.56. P.W.19, Handwriting Expert, in his evidence as well in his report (Ex.P.47), has stated that the person who had signed as Doraisamy in Ex.P.56 has signed the loan application documents (Q.33 to Q.48). This evidence establishes that it was A.2 who has signed as Doraisamy in English in the loan application documents, viz., (Exs.P.3 to P.6).
34 Thus, from an analysis of evidence of P.W.3, P.W.4, P.W.8, P.W.9, P.W.12, P.W.16, P.W.17 and P.W.19, this Court returns the finding that the prosecution have proved beyond reasonable doubt that on 19.03.1991, a loan of Rs.10,000/- has been sanctioned to a non-existent Doraisamy based on the document created by the appellants and the sum of Rs.10,000/- was collected by A.1.
Loan application of Rajendran:
35 One Rajendran, S/o Thangaraju of Keezha Perambalur Village has submitted a crop loan application dated 19.03.1991 (Ex.P.9) which has admittedly been filled up A.1 and which bears the signature of Rajendran in English. The memorandum of agreement for crop loan entered into between the branch and Rajendran has been marked as Ex.P.10. The application is accompanied by the certificate (Ex.P.11) issued by A.3 to the effect that Rajendran owns 1.01.5 hectares in Survey No.326/5, 326/6, 326/17 and 326/18 of Keezha Perambalur Village. Rajendran has been sanctioned crop loan of Rs.10,000/- on the date of application, viz., 19.03.1991 vide Ex.P.13. On the reverse side of Ex.P.13, the denomination of the notes has been written by P.W.3 and there is the signature of the loanee in English. The specimen signature card (Ex.P.12) bears the signature of Rajendran in English. Admittedly, this loan became a Non-Performing Asset. As stated above, P.W.3 has spoken to about these documents and she has also stated that Rajendran did not come to the branch and that she handed over the cash to A.1. Since the account holder defaulted, a letter was sent to his address by post, which was returned unserved and the same has been marked as Ex.P.14.
36 The prosecution have examined Ramasamy (P.W.12), Village Administrative Officer of Keezha Perambalur Village, who succeeded A.3, in order to show that Rajendran, S/o Thangaraju, is not a resident of Keezha Perambalur Village and the survey numbers mentioned in the valuation, chitta and adangal certificates (Ex.P.11) belong to P.W.10. P.W.16, an officer from the Collectorate has stated that in the voters' list of Keezha Perambalur Village, there is nobody by name Rajendran.
37 The prosecution have also examined P.W.5, S/o Thangaraju from the nearby Kozhiyur Village, who has stated in his evidence that he knows A.2 since A.2 is from his village, but, he (P.W.5) is not a resident of Keezha Perambalur Village and that he had not given any application for crop loan to Canara Bank, Agaram Sigoor Branch.
38 The prosecution have further examined P.W.10 of Keezha Perambalur Village to establish that he is the real owner of the lands mentioned in the certificate (Ex.P.11) issued by A.3. In the chief-examination, he did not identify A.3 and therefore, he was declared hostile. However, in the cross- examination by the Special Public Prosecutor, he has admitted that the land in Survey No.326/5, 326/6, 326/17 and 326/18 of Keezha Perambalur Village, measuring 1.0.15 ares belong to him and that, his lands have been shown as if belonging to one Rajendran, S/o Thangaraju.
39 The specimen signatures of Rajendran, who has been examined as P.W.5, have been obtained by the Investigating Officer and the same have been marked as Ex.P.40 series (S.1 to S.13). A.2 had also given the specimen writings as T. Rajendran and the same have been marked as Ex.P.54 series (S.96 to S. 105).
40 P.W.19, in his evidence as well in his report, (Ex.P.47), has stated that the person who wrote S. 96 to S. 105 (Ex.P.54 series) also wrote Q.1 to Q.16 (signatures of Rajendran in the loan application documents- Exs.P.9 to P.13). The signature of P.W.5 is in Tamil, whereas, the signature in the loan application, specimen signature card and other documents are in English.
41 From an analysis of the evidence of P.W.3, P.W.5, P.W.10, P.W.12, P.W.16, P.W.17 and P.W.19, this Court returns the finding that the prosecution have proved beyond reasonable doubt that on 19.03.1991, a sum of Rs.10,000/- has been sanctioned to a non-existent Rajendran, based on the documents (Exs.P.9 to P.13) created by the appellants and the sum of Rs.10,000/- was collected by A.1.
Loan application of Meiazhagan:
42 One Meizhagan, S/o Ilankannu of Keezha Perambalur Village has submitted a crop loan application (Ex.P.15) which has admittedly been filled up by A.1 and which bears the signature of Meiazhagan in Tamil. The memorandum of agreement for crop loan entered into between the branch and Meiazhagan has been marked as Ex.P.16. The loan application is accompanied by the certificate (Ex.P.17) given by A.3 to the effect that Meiazhagan, S/o Ilankannu, is a resident of Keezha Perambalur Village and he owns 0.55.0 hectares of land in Survey No.355/10C, 360/13B, 206/9 and 206/10A in Keezha Perambalur Village. Meiazhagan has been sanctioned a loan of Rs.10,000/- on the date of application, viz., 19.03.1991, vide Ex.P.19. On the reverse side of Ex.P.19, a revenue stamp has been affixed, over which, there is a signature of Meiazhagan in Tamil. The specimen signature card (Ex.P.18) bears the signature of Meiazhagan. Admittedly, this loan became a Non- Performing Asset and as stated above, P.W.3 has spoken to about these documents and she has also stated that Meiazhagan did not come to the branch and that she handed over the cash to A.1. Since the account holder had defaulted, a letter was sent to his address by post which returned unserved and the same has been marked as Ex.P.20.
43 The prosecution have examined Ramasamy (P.W.12), Village Administrative Officer of Keezha Perambalur Village, who succeeded A.3 in order to show that Meiazhagan is not a resident of Keezha Perambalur Village and the survey numbers mentioned in the valuation, chitta and adangal certificates (Ex.P.17) belong to P.W.11. P.W.16, an officer from the Collectorate, has stated that in the voters' list of Keezha Perambalur Village, there is nobody by name Meiazhagan, S/o Ilankannu.
44 The prosecution have also examined P.W.18, S/o Ramakannu from the nearby Kozhiyur Village, who had stated that he had not applied for any loan in Canara Bank and that the signatures in the loan application are not that of his. He did not identify any of the accused.
45 The prosecution have further examined P.W.11 in order to show that the lands mentioned in the certificate given to the loanee Meiazhagan actually belongs to him. But, P.W.11 was declared hostile since he did not support the case of the prosecution with regard to the bogus certificate that was given by A.3. However, in the cross-examination, he admitted that the lands in S. Nos.355/10C, 360/13B, 206/9 and 206/10A in Ex.P.17 belong to him.
46 Coming to the evidence of P.W.19, Handwriting Expert, he has stated that he is unable to ascertain the authorship of the questioned signatures of Meiazhagan in the loan application (Ex.P.15) and the specimen signature card (Ex.P.18). Therefore, this Court is unable to return a finding as to who had actually forged the signatures of Meiazhagan in the loan application form and the connected documents. This will exonerate only A.2 from the charge of forgery of the signatures alone, but, will not exonerate him and A.1 and A.3 from the other charges.
47 From an analysis of the evidence of P.W.3, P.W.18, P.W.11, P.W.12 and P.W.16, this Court returns the finding that the prosecution have proved beyond reasonable doubt that on 19.03.1991, a loan amount of Rs.10,000/- has been sanctioned to a non-existent Meiazhagan based on the certificate (Ex.P.17) given by A.3 and a sum of Rs.10,000/- has been collected by A.1.
48 In order to prove that the cattle loans of Rs.6,000/- and Rs.3,500/- were sanctioned to two non-existent persons, viz., Muthurangan and Sengottuvan respectively, the prosecution relied upon the evidence of P.W.3, P.W.16, P.W.17, P.W.6, S/o Ambikapathy, (P.W.7), S/o Mayavel and P.W.19. Though the prosecution have satisfactorily established that the appellants had sanctioned cattle loan to two fictitious persons by name Muthurangan and Sengottuvan, yet, the Trial Court has given the following finding:
?180. . . . . As stated earlier, this Court had absolved the accused of all charges in respect of the loans sanctioned in the names of A. Muthurengan and M. Sengottuvan without going into the details thereof, but only on the ground that the loan amounts had been repaid. . . .?
In the light of the judgment of the Supreme Court in C.B.I. Vs. Maninder Singh [2015 (9) Scale 365] that repayment of loan will not absolve the accused from criminal liability, the above finding of the Trial Court is not sustainable. However, the State has not chosen to prefer any appeal against the order of acquittal on this finding and therefore, this Court has no other option but to set the matter at rest.
49 Coming to the sanction under Section 19 of the PC Act, it is seen that A.1 was not in service when the Special Court took cognizance of the offence since he had been dismissed from service pursuant to departmental proceedings and therefore, no sanction was required to prosecute him.
50 N.S. Srinath (P.W.1), Deputy General Manager, Canara Bank, has accorded sanction vide Ex.P.1 on 21.06.2003 under Section 19 of the PC Act for prosecuting A.2. In the cross-examination, he was asked as to whether he received requisition from the C.B.I. for according sanction, for which, he replied in the affirmative. Thereafter, it was suggested to him that he had not applied his mind properly before according sanction and that he had granted sanction on the mere asking of the C.B.I., which suggestion he denied.
51 Syed Ghose (P.W.2), Revenue Divisional Officer, was examined to prove the sanction order dated 27.06.2003 (Ex.P.2) given under Section 19 of the PC Act for prosecuting A.3. It was suggested to him that he did not apply his mind before according sanction, which suggestion, he denied.
52 This Court carefully perused the evidence of P.Ws.1 and 2 and the two sanction orders, viz., Exs.P.1 and P.2 given by P.W.1 and P.W.2 respectively and found that there is no infirmity in the orders of sanction warranting interference by this Court.
53 The learned counsel for the appellants submitted that there is no evidence to show that the appellants had conspired to commit the offence. It is true that there is no direct evidence to show that the appellants had met somewhere and conspired to commit the offence. But, it is trite that conspiracy is hatched in secrecy and seldom will there be direct evidence in regard thereto [See State of Madhya Pradesh vs. Sheetla Sahai (2009) 8 SCC 617]. In the cases at hand, the case of the prosecution rests mainly on documentary and circumstantial evidence. Without the connivance of A.3, A.1 and A.2 could not have obtained the valuation, chitta and adangal extracts, viz., Exs. P.7, P.11 and P.17. As the Village Administrative Officer, A.3 knew that the loanees, viz., Doraisamy, Rajendran, Meiazhagan were not from Keezha Perambalur Village and they have no lands there. Yet, he has given certificates, viz., Exs.P.7, P.11 and P.17, to the effect that the fake loanees possess lands in certain survey numbers which turned out to be the lands of P.W.8, her son P.W.9, P.W.10 and P.W.11.
54 The defence had examined three witnesses, viz., Chandrasekaran (D.W.1), Ramu (D.W.2) and Nagoor Khan (D.W.3), to show that the loans were covered by insurance scheme and that the Insurance Company has honoured the bank's claim, which shows that the loans were not bogus loans. Mr. Venkatesh, learned counsel for A.1 submitted that the Deposit Insurance and Credit Guarantee Corporation which has been constituted under the Deposit Insurance Credit Guarantee Corporation Act, 1961, has paid a portion of the dead loan amounts to the bank. According to him, had the loans been fake, the Deposit Insurance and Credit Guarantee Corporation would not have compensated the bank. This argument was advanced even in fake motor vehicle insurance fraud case before a Division Bench of this Court. It was contended that the Insurance Company had paid the claimant and therefore, the motor accident should have to be presumed to have occurred. Courts have negatived this argument and criminal prosecutions have been registered not only against the claimants but also against those who had connived with the claimants like police officers, etc. Hence, the act of the Deposit Insurance and Credit Guarantee Corporation compensating the bank cannot lead to the inference that the fraud has not taken place at all. The evidence adduced by the prosecution that the loanees were fictitious persons is so overwhelming that this Court cannot close its eyes to the evidence on record and simply exonerate the appellants on the ground that the Insurance Company had made good the dead loans.
55 The learned counsel for A.1 submitted that there is no correlation between the allegations found in the F.I.R. and the allegations in the final report. He submitted that the F.I.R. was not registered on the complaint of the bank, but, suo motu by the C.B.I. He built up his arguments by submitting that the F.I.R. refers to the names of ten borrowers which does not include Doraisamy, Rajendran, Meiazhagan, Muthurangan and Sengottuvan. Hence, the learned counsel submitted that the entire prosecution stands vitiated.
56 It is true that the name of the above said five borrowers do not figure in the F.I.R. One should understand that this is not a murder case where F.I.R. has been registered on the statement of an alleged eye witness. The C.B.I. smelt a rat in the business affairs of Canara Bank, Agaram Sigoor Branch and gathered information that fake loans to 10 persons have been sanctioned by A.1 and on that premise, registered the F.I.R. However, during the course of investigation, the C.B.I. was able to collect concrete materials about the fake loans disbursed in the name of the aforesaid five persons and therefore, in the charge sheet, they submitted the materials. It is trite that the F.I.R. is not the encyclopaedia of the prosecution case and therefore, in a case of this nature, the fact that the five loans covered by the final report do not figure in the F.I.R. will not have the effect of annulling the prosecution.
57 The learned counsel for A.1 further submitted that from the evidence of P.W.3, it has been elicited that one Ramasamy, Branch Manager, who had succeeded A.1, had given a complaint to the C.B.I. and that complaint has been burked. Burking of a complaint will normally arise in matters relating to a case and counter-case involving physical violence, inasmuch as one party will give a particular version of the incident and the other party will give a different version and if the police burk one of the versions, then, the prosecution becomes suspect. That is not the case here.
58 It is further submitted by the learned counsel for A.1 that the prosecution should have examined the actual loanees, but, instead, they examined some persons bearing the name of the loanees from the adjoining villages which cannot be countenanced. It is the specific case of the prosecution that all the five loanees were individuals not existing in Keezha Perambalur Village and therefore, there is no possibility by which the prosecution could have examined the non-existent loanees. That is why, this Court had held in paragraph no.17 above that the prosecution have adduced both positive and negative evidence to prove the charges. Further, the prosecution have examined P.W.17, Postal Delivery Agent through whom the returned envelopes have been marked as exhibits. P.W.17 has stated in his evidence that, there were no such persons in the addresses. The prosecution have examined P.W.16 from the office of the Revenue Divisional Officer to show that in the voters list of Keezha Perambalur Village, there are no persons bearing the name of the loanees. That apart, out of the five loanees, three loanees have submitted revenue records to show that they are the owners of certain lands in Keezha Perambalur Village. The prosecution have examined P.W.8, P.W.9, P.W.10 and P.W.11 to show that these individuals are the true owners of the lands in question. Therefore, the failure of the prosecution to produce the complaint of Ramasamy, Branch Manager, who succeeded A.1 is not fatal to the case of the prosecution. However, it is the assertion of A.1 in his evidence that he had given the five loans to genuine persons. If that is so, the onus is on him under Section 106 of the Evidence Act to produce at least one of them before the Trial Court, in which endeavour, he had miserably failed.
59 It is the further contention of the learned counsel for A.1 that in the cross-examination of P.W.3, she has admitted that in the departmental enquiry conducted by Palanivel, she had stated that the loans were disbursed by her to the loanees and therefore, her evidence in the Court that the loan amounts were handed over by her to A.1 deserves to be rejected. He further contended that P.W.3 has admitted in the cross-examination that she did not tell the C.B.I. that A.1 and A.2 had an altercation in the cabin of A.1. the next day.
60 In respect of an incident that had taken place on 19.03.1991, P.W.3 was examined-in-chief nearly a decade later, i.e., on 12.12.2003. Even if we close our eyes to the evidence of P.W.3, there are overwhelming materials like the fake land records, Hand Writing Expert's opinion, evidence of P.W.17, Postal Delivery Agent, etc. to show that the five loanees were fictitious persons.
61 In the cross-examination, P.W.3 candidly admitted that she had flouted the rules of the bank by handing over the loan amounts directly to A.1 and she did not try to defend herself. She trusted A.1 as he was her boss and handed over the cash to him little realising that he had fabricated the records. In short, the overall reading of the evidence of P.W.3 does inspire the confidence of this Court and there is no reason to disbelieve her testimony.
62 The learned counsel for A.1 contended that from Exs.D.4 to D.15, it is evident that A.1 was a very efficient officer with an impeccable track record. It is common knowledge that good character of the accused can have no superior relevance in a criminal prosecution qua evidence incriminating the accused.
63 Mr. R. Mariappan, learned counsel for A.2 submitted that the prosecution have failed to establish the contact between A.1 and A.2 and have also failed to prove the statement of P.W.3 that A.1 told her that the five loans were applied for, for the benefit of A.2 who was in financial straits. It is true that the statement of A.1 to P.W.3 that the five loans were applied for, for the benefit of A.2 cannot be used as against A.2. However, the conduct of A.2 in meeting P.W.3 on 20.03.1991 and after ascertaining from her as to whether the amounts towards five loans were paid, he going inside the cabin of A.1 and having a heated argument with him, buttresses the case of the prosecution. That apart, the signature of the five claimants have been affixed by A.2 which has been established beyond doubt via the evidence of P.W.19, Handwriting Expert.
64 The learned counsel for A.2, pointing out that P.W.5 has stated in the chief-examination that A.2 is from his village, but, in the cross- examination, has stated that he does not know A.2, contended that the evidence of P.W.5 ought not to have been believed. Admittedly, A.2 is a bank official and P.W.5 is an ordinary peasant. The evidence of P.W.5 is to the effect that A.2 belongs to Kozhiyoor Village and nothing more. Perhaps, P.W.5 may not be a friend of A.2, but, that does not mean that his evidence that A.2 hails from Kozhiyoor Village should be rejected. It has not been suggested by A.2 to any of the witnesses that he does not belong to Kozhiyoor Village.
65 The learned counsel for A.2 submitted that the report of the Handwriting Expert bears the signatures of D.D. Goel, Government Examiner of Questioned Documents and Narinder Singh (P.W.19), Deputy Government Examiner of Questioned Documents, whereas, the reasoning sheets bear only the signature of P.W.19. He built up his arguments by contending that there should also be reasoning sheets of D.D. Goel which have been suppressed. This argument deserves to be rejected at the outset on the sole ground that P.W.19 has not been confronted in the cross-examination on this aspect. Be that as it may, D.D. Goel was the chief under whom P.W.19 worked. The actual comparison has been done by P.W.19 as could be seen from the signatures available in the reasoning sheets. D.D. Goel is a supervisory officer who is required to supervise the work of P.W.19 and therefore, the absence of D.D. Goel's signature in the reasoning sheets cannot lead to an inference that D.D. Goel has also independently prepared reasoning sheets and that those reasoning sheets have been suppressed. Hence, the non-examination of D.D.Goel is not fatal to the case of the prosecution.
66 The learned counsel for A.2 further submitted that the signatures of A.2 were not obtained in accordance with Section 5 of the Identification of Prisoners Act, 1920. In support of this contention, he placed reliance upon the following judgments of this Court:
1K.Dhanasekaran vs.State by Inspector of Police, CB-CID, Erode [2003 (1) CTC 223];2
Sathishkumar and another vs. State [2012 (2) MWN (Cr.) 305 (DB)]; and 3 Christopher Sam Miller vs. The Inspector of Police, DCB-Nagercoil, Kanyakumari District [2018 1 L.W. (Crl.) 274].
67 In the F.I.R. registered by the C.B.I., A.2 was not arrayed as an accused. During the normal course of investigation, the Investigating Officer obtained the specimen signatures of A.2 and sent the same for comparison to the Handwriting Expert. After obtaining report from the Handwriting Expert, A.2 has been shown as accused in the final report. The power to obtain specimen handwritings and signature from a person during the course of investigation is available to the police de hors the Identification of Prisoners Act. The Identification of Prisoners Act is an enabling provision which can be resorted to wherever judicial intervention becomes necessary. Therefore, this argument is without basis.
68 The learned counsel for A.2 submitted that the Investigating Officer did not collect the specimen signatures of P.W.4 and he did not compare it with the signature of one Doraisamy found in the loan application. It should be remembered that it is the case of the prosecution that there was no Doraisamy in Keezha Perambalur Village. Doraisamy, who was examined as P.W.4, hailed from Kozhiyoor Village. He was examined for the limited purpose to show that he had not made any loan application with the bank. Even A.2 had not suggested to P.W.4 that it was he who had come to the bank and had availed the loan on 19.03.1991. Hence, there is no necessity for the Investigating Officer to collect the specimen signature of Doraisamy from the adjoining village for the purpose of comparison with the signature available in the application form of fake Doraisamy.
69 Mr. Mariappan, learned counsel for A.3 submitted that the prosecution have not proved any mens rea for A.3 to issue the land certificates (Exs.P.7, P.11 and P.17) in support of the loan applications made by the fake loanees. In support of this submission, the learned counsel relied upon the judgment of the Supreme Court in C.K. Jaffer Sharief vs. State (through CBID) [(2003) 1 SCC 205].
70 Admittedly, A.3 was the Village Administrative Officer of Keezha Perambalur Village and he was in charge of the village land records. The allegation against him is that he had abused his official position to give certificates, viz., Exs.P.7,P.11 and P.17 with false averments to the effect that the loanees are the owners of the lands mentioned therein. Whereas, the prosecution, by examining P.W.8 to P.W.11 to show that they are the actual owners of the lands covered in Exs.P.7, P.11 and P.17 that were issued by A.2, have belied the case of the defence. Thus, the charge under Section 13(1)(d) of the PC Act that A.3 had abused his official position and had issued the bogus certificates, pursuant to which, someone else obtained pecuniary advantage is sufficient willy nilly to fasten criminal liability upon A.3.
71 In Jaffer Sharief (supra), the Supreme Court was dealing with quashment of charge sheet despite the fact that sanction to prosecute was refused. It is true that the Supreme Court has held that dishonest intention is the gist of the offence under Section 13(1)(d) of the PC Act. In Jaffer Sharief (supra), the allegation was that Jaffer Sharief had taken four employees on deputation to London in connection with his medical treatment. However, in this case, it has been established that A.3 had facilitated the disbursal of fake loans by issuing certificates, Exs.P.7, P.11 and P.17. When the prosecution have established that it was A.3 who had issued those three certificates and that the averments in the said three certificates have been proved to be false and that without those certificates, the loan applications could not have been dealt with by A.1, no further proof is required to show that A.1 and A.3 had conspired to commit the offences in question.
72 Coming to the quantum of sentence, the Trial Court has imposed the minimum sentence of one year rigorous imprisonment prescribed by Section 13(2) of the PC Act and the sentences of all I.P.C. offences have been telescoped into it. Hence, there cannot be any reduction in the quantum of sentence in these cases.
In the result, these Criminal Appeals are liable to be dismissed as being devoid of any merit and the same are accordingly dismissed. The bail bonds and the sureties executed by the appellants shall stand cancelled. The Trial Court is directed to secure the custody of the appellants and send them to prison to suffer the remaining period of sentence imposed on them.
To 1 The Special Judge for C.B.I. Cases Madurai 2 The Inspector of Police SPE/CBI/ACB Chennai 3 The Special Public Prosecutor for CBI Madurai Bench of Madras High Court Madurai .