Madras High Court
R.Srinath vs State By on 9 June, 2023
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.Nos.279 and 381
of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 03.02.2023
JUDGMENT PRONOUNCED ON : 09.06.2023
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.Nos.279 and 381 of 2012
and
M.P.No.1 of 2012
Crl.A.No.279 of 2012
R.Srinath .. Appellant
.Vs.
State by
Inspector of Police,
CBI/BS &FC/Bangalore,
Crime No.03/2004 .. Respondent
Criminal Appeal filed under Section 374(a) of Code of Criminal
Procedure to call for the records relating to the judgment in C.C.No.22 of
2006 dated 15.3.2012 passed by the learned XI Additional City Civil and
Sessions Judge (CBI Cases relating to Banks and Financial Institutions)
Chennai and set aside the conviction and sentence passed as against the
Appellant/Accused 1.
For Appellant : Mr.S.Rajendrakumar
For Respondent : Mr.K.Srinivasan
Special Public Prosecutor
for CBI Cases
https://www.mhc.tn.gov.in/judis
Page No.1/48
Crl.A.Nos.279 and 381
of 2012
Crl.A.No.381 of 2012
State represented by
Inspector of Police,
CBI/BS &FC/Bangalore. ...Appellant
.Vs.
1.Anitha Anand
2.C.Anand
3.C.Kamal ...Respondents
Criminal Appeal filed under Section 378 of Code of Criminal
Procedure to set aside the judgment in C.C.No.22 of 2006 dated
15.3.2012 passed by the learned XI Additional City Civil and Sessions
Judge (CBI Cases relating to Banks and Financial Institutions) Chennai
acquitting A3 to A5 for the charges levelled against them and convict
them for the offences charged in the interest of justice.
For Appellant : Mr.K.Srinivasan
Special Public Prosecutor
for CBI Cases
For Respondents : Mr.T.Sivanantham
for M/s.Sivanandha & Associates
COMMON JUDGMENT
These Criminal Appeals arise out of the common judgment dated 15.3.2012 passed in C.C.No.22 of 2006 by the learned XI Additional City Civil and Sessions Judge (CBI Cases relating to Banks and Financial Institutions) Chennai.
https://www.mhc.tn.gov.in/judis Page No.2/48 Crl.A.Nos.279 and 381 of 2012
2. For the purpose of convenience, the parties are described as per their ranking in the trial Court.
3. The case of the prosecution is that A1 was the Senior Manager and A2 was the Accountant of the Union Bank of India, Triplicane Branch, Chennai during September 2002 to February 2004 and they have entered into a criminal conspiracy with A3 Proprietrix of M/s.Anand Agencies, A4 (C.Anand) husband of A3 and A5 (C.Kamal), brother of A4 who have committed criminal breach of trust and to cheat the Union Bank of India, Triplicane Branch. In pursuance thereof, A1 and A2, by abusing their official position as public servants, dishonestly facilitated A3 to A5 to mis-utilize and mis-appropriate the funds of the said Bank by permitting undue accommodation in clearing the high value cheques. In that manner, they have irregularly cleared both inward and outward clearing in the account of M/s.Anand Agencies by flouting all Banking norms and procedures. A3 had issued hundreds of cheques in the account of the said agency with Union Bank of India, Triplicane Branch and ICICI Bank Limited, Nungambakkam Branch, Chennai, which were https://www.mhc.tn.gov.in/judis Page No.3/48 Crl.A.Nos.279 and 381 of 2012 presented to the Banks by A4 and A5, in which, undue accommodation was given by A1 and A2, thereby, A3 to A5 got illegal gain of Rs.6.28 crores, without paying any commission or interest to the Union Bank of India, Triplicane Branch and thereby, caused corresponding wrongful loss to the Bank. Hence, a complaint has been registered against the accused persons.
4. On the complaint, the respondent/Police registered a case as against A1 to A5 in Crime No.RC 3/E/2004 for the offences punishable under Sections 120-B r/w Sections 409, 420 IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 [ hereinafter referred to as 'PC Act' for the sake of convenience]. On completion of investigation, the prosecution filed a charge sheet before the learned XI Additional City Civil and Sessions Judge (CBI Cases Relating to Banks and Financial Institutions) Chennai. The learned Judge took cognizance of the offences in C.C.No.22 of 2006 and charges were framed as against A1 to A5 for the offences under Sections 120-B r/w Sections 409 and 420 IPC and Sections 13(2) r/w 13(1)(c) and 13 1(d) of PC Act; as against A1 and A2 for the offence under Section 409 IPC; as against A3 https://www.mhc.tn.gov.in/judis Page No.4/48 Crl.A.Nos.279 and 381 of 2012 to A5 for the offence under Section 420 IPC; as against A1 and A2 for the offence under Sections 13(2) r/w 13(1)(c) of PC Act; and as against A1 and A2 for the offence under Sections 13(2) r/w 13(1)(d) of PC Act.
5. In order to prove its case before the trial Court, on the side of the prosecution, as many as 10 witnesses were examined as P.W.1 to P.W.10 and 439 documents were marked as Exs.P1 to P439. No material objects were exhibited.
6. After examining the prosecution witnesses, the incriminating circumstances were culled out from the evidence of the prosecution witnesses, which were put before the accused persons and they were questioned under Section 313 Cr.P.C., wherein they denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, one witness was examined as D.W.1 and 22 documents were marked as Ex.D1 to Ex.D22.
7. The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that A2 to A5 were not found guilty of the charged offences and acquitted them from all the charges, whereas, A1 was found guilty of the charged https://www.mhc.tn.gov.in/judis Page No.5/48 Crl.A.Nos.279 and 381 of 2012 offences and he was convicted and sentenced as under :
Offence Sentence Sections 13(2) r/w 13 to undergo rigorous imprisonment (1) (c) of PC Act for a period of one year and to pay a fine of Rs.5,000/-, in default, to undergo further period of three months simple imprisonment.
Sections 13(2) r/w 13 to undergo rigorous imprisonment (1) (d) of PC Act for a period of one year and to pay a fine of Rs.5,000/-, in default, to undergo further period of three months simple imprisonment Both the sentences were ordered to be run concurrently. The period of detention, if any, already undergone by the A1 was ordered to be set off under Section 428 Cr.P.C.
8. Challenging the said conviction and sentences, A1 has filed the appeal in Crl.A.No.279 of 2012 and challenging the acquittal of A3 to A5, the Central Bureau of Investigation (CBI) has filed the appeal in Crl.A.No.381 of 2012 before this Court.
9.1 Mr.K.Srinivasan, learned Special Public Prosecutor appearing for CBI Cases submitted that the prosecution witnesses have clearly spoken about the criminal conspiracy among the accused persons. It is well settled proposition of law that there will be no direct evidence to https://www.mhc.tn.gov.in/judis Page No.6/48 Crl.A.Nos.279 and 381 of 2012 establish the criminal conspiracy and it is to be inferred from the circumstances. If the planning and execution and the benefit out of it are accrued to the same person, conspiracy would not be there. But in this case, the public servants have abused their official position by criminal breach of trust, benefit accrued to A3 to A5. He further submitted that A3 to A5 are the main beneficiaries of the fraud. The prosecution has established the element of conspiracy beyond reasonable doubt on the part of A3 to A5 with regard to their role in the transaction. The trial Court has failed to understand that convicting A1 alone for the offence of criminal misconduct and breach of trust, is not proper, since the real beneficiaries (A3 to A5) are acquitted by the Court, even though the facilitation of A1 in accommodating illegal credit and debit has been used by A3 to A5. The finding of the trial Court regarding signature in all the cheques are that of A3, but no witness has been examined to establish it and no witness has been examined to establish that A4 and A5 were transacting with the Branch is perverse. The trial Court failed to appreciate the evidence in right perspective that A3 to A5 had admitted their role in the transaction even during the proceedings under Section 313 Cr.P.C., that all the accommodative cheques presented to UBI and https://www.mhc.tn.gov.in/judis Page No.7/48 Crl.A.Nos.279 and 381 of 2012 ICICI Banks in the names of M/s.Anand Agencies, are signed by A3 and the Accounts are operated by A4 and A5.
9.2 Learned Special Public Prosecutor further submitted that it is not in dispute that M/s.Anand Agencies is the Proprietrix concern and A3 is the Proprietrix of M/s.Anand Agencies. A4 is the husband of A3 and A5 is the brother of A4. As a Proprietrix of M/s.Anand Agencies, A3 only signed all the cheques, which were transferred to Union Bank of India and ICICI Bank. A4 and A5 presented the cheques in the Banks. Therefore, without knowledge of A3 to A5, A1 cannot play any role. In order to accommodate A3 to A5, A1 facilitated them. He further submitted that A1 as a public servant entered into criminal conspiracy with A3 to A5 and has cleared the cheques over and above the sanctioned limit of Rs.30 lakhs to M/s.Anand Agencies. He further submitted that A2 is the Accountant of the Union Bank of India during the relevant point of time and he has also facilitated A1, in order to get benefits to A3 to A5.
9.3 Learned Special Public Prosecutor further submitted that https://www.mhc.tn.gov.in/judis Page No.8/48 Crl.A.Nos.279 and 381 of 2012 Ex.P8 to Ex.P357 are the cheques, which were signed by A3 and demand draft applications, challans etc., are submitted by A4 and A5 and the same were marked with the consent of A3 to A5 under Section 294 Cr.P.C. As per the provisions under Section 294(3) Cr.P.C., where the genuineness of any document, is not disputed and such document can be read in evidence without proof of signature of the person to whom it is purported to be signed. The trial Court, without appreciating any oral and documentary evidence, wrongly acquitted A3 to A5, which warrants interference of this Court. When, once the document had been marked under Section 294(3) Cr.P.C., subsequently, the same cannot be questioned. In this case, the accused persons have also not questioned those documents, which shall form part of the records in this case, however, the trial Court failed to consider the object of Section 294 Cr.P.C and the documents marked under Section 294(3) Cr.P.C and erroneously held that the prosecution has not proved the role of A3 to A5 and acquitted them. He further submitted that the prosecution has proved its case beyond reasonable doubt that all the cheques presented to Union Bank of India and ICICI Bank, drawn in the account of M/s.Anand Agencies, are signed by A3 and presented with the Bank by A4 and A5 https://www.mhc.tn.gov.in/judis Page No.9/48 Crl.A.Nos.279 and 381 of 2012 and the same was admitted by A3 to A5. While questioning under Section 313 Cr.P.C. the accused persons have not disputed those documents which were marked under Section 294 Cr.P.C. which clearly proved that the prosecution has proved the charge under Section 420 IPC as against A3 to A5. The trial Court, failed to consider the oral and documentary evidence and erroneously held that charge under Section 420 IPC has not been made out against A3 to A5.
9.4 During trial, the prosecution established the fact that A3 to A5 are the main beneficiaries and the trial Court gave undue weightage to the fact that A3 to A5 have repaid the amount to the Bank. The trial Court failed to note that the amount was recovered by the Bank through legal process and not repaid voluntarily by the accused persons. As per the decisions of the Hon'ble Supreme Court in the case of Rumi Dhar Vs. State of West Bengal and Another reported in J.T.2009(5) SCC 321 settlement of dues by the parties, does not put to an end to the criminal proceedings which are different from civil proceedings and further, the Hon'ble Supreme Court in the case of CBI vs. A.Ravishankar Prasad and others reported in 2008 (6) SCC 351 held that mere repayment of the https://www.mhc.tn.gov.in/judis Page No.10/48 Crl.A.Nos.279 and 381 of 2012 loan under settlement, on facts, did not exempt the accused persons from criminal proceedings on account of forgery, cheating, corruption etc. Therefore, the trial Court failed to appreciate the fact that A1has accommodated the operation of account of A3 to the extent of Rs.6.28 crores against the sanction limit of Rs.30 lakhs and collateral security of Rs.30 lakhs. Since A3 is the Proprietrix of M/s.Anand Agencies, she is solely responsible for the day-to-day affairs of the said Agency, whereas, the trial Court erroneously held that A3 is not involved in day-to-day activities of the Agency and also held that there was no evidence to show that A4 and A5 have operated the Accounts of A3. However, during trial, A3 to A5 admitted the above facts in their statement under Section 313 Cr.P.C. Moreover, A4 and A5 have offered their property as a collateral security on detection of the fraud by the Bank. Since there was a over- due, proceedings were initiated under the Debts Recovery Tribunal [hereinafter referred to as 'DRT' for the sake of convenience] to recover the dues, which clearly shows that A3 to A5 have committed the offence of cheating by defrauding the Bank. The trial Court failed to appreciate the entire oral and documentary evidence, acquitted A3 to A5 from the charged offences for the reason that the documents were only marked, https://www.mhc.tn.gov.in/judis Page No.11/48 Crl.A.Nos.279 and 381 of 2012 but the conspiracy was not proved by adducing the evidence. Since the documents were not disputed and also it is not in dispute that A3 is the Proprietrix of M/s.Anand Agencies and she has acted on behalf of A4 and A5. Therefore, the findings of the trial Court are perverse and the same is liable to be set aside and appeal filed by the CBI against the acquittal of A3 to A5, may be allowed.
10.1 Mr.S.Rajendrakumar, learned counsel appearing for A1 submitted that A1 was the Branch Manager of Union Bank of India, Triplicane Branch, A2 was the Accountant of the aforesaid Bank, A3 is the Proprietrix of M/s.Anandh Agencies, A4 is husband of A3 and A5 is brother of A4. A3 was having an account in the name of M/s.Anandh Agencies in the Union Bank of India, Triplicane Branch. According to prosecution, A1 to A5 entered into criminal conspiracy, so that, A3 to A5 were given immediate credit to their outward clearing cheques and belated debit to inward clearing cheques and therefore, the Bank suffered loss to the tune of Rs.6.28 crores.
10.2 The main allegation against A1 is that he had given credit to https://www.mhc.tn.gov.in/judis Page No.12/48 Crl.A.Nos.279 and 381 of 2012 the cheques presented by M/s.Anadh Agencies on the same day. However, the action of A1 is neither illegal nor legal by any means. The prosecution has not produced any material to show that the action of A1 is prohibited by law. Learned counsel appearing for A1 further submitted that there are so many contradictions in the evidence of the prosecution witnesses. He further submitted that during trial, P.W.1 and P.W.2 have stated about clearing of the cheques in the Bank. P.W.1 has stated that Magnetic Ink Character Recognition [hereinafter referred to as 'MICR' for the sake of convenience] clearing are regular clearing and the Branch will accept the cheques for clearing. After accepting the cheques, the amount will be credited to the respective Accounts on the third day. The cheques valuing Rs.1 lakh and above will be called as high value cheques and it will be cleared on the same day. If the cheque is not paid, the intimation will be received from the Branch by 3.30 p.m on the same day. Further, Bank will send the high value outward clearing cheques in the normal MICR clearing, for which, the actual credit will come on the next day only, but in the present case, immediate credit has been given on presentation of the cheques by the accused persons. P.W.2 N.Venkatraman, retired AGM, Union Bank of India has also admitted https://www.mhc.tn.gov.in/judis Page No.13/48 Crl.A.Nos.279 and 381 of 2012 that the high value outward cheques will be accepted only upto 10.30 a.m and they will be taken to the Service Branch immediately from there and it will be presented to the high value clearing house in the afternoon of the same day. The fate of the high value clearing cheques so presented, will be known on the same day by 3.00 p.m. As regards inward high value clearing cheques, the cheques will be received from the Service Branch at about 1.00 p.m. and the Branches will pick up the cheques from the Service Branch and bring them to the concerned Branch for debiting on the same day.
10.3 Learned counsel appearing for A1 also submitted that with regard to MICR clearing cheques, the outward clearing cheques will be accepted upto 2.00 p.m and they will be sent to the Service Branch only around 4.00 p.m. The fate of the above cheques will be known only on the third day.
10.4 Learned counsel appearing for A1 further added that P.W.3 and P.W.4 also stated regarding clearance of the cheques, however, there are contradictions in the evidence of prosecution witnesses regarding the https://www.mhc.tn.gov.in/judis Page No.14/48 Crl.A.Nos.279 and 381 of 2012 mode of clearance. The trial Court failed to note that there is no conspiracy regarding clearance of the cheques and therefore, acquitted the other accused. Once the prosecution witnesses themselves have stated about the procedures adopted by the Bank, which is not uniform nature and the Bank also admitted the said fact, convicting A1 alone is erroneous.
10.5 Learned counsel appearing for A1 further submitted that from the evidence of prosecution witnesses P.W.1 to P.W.6, it could be seen that there is no uniform procedure relating to clearance of the cheques. Even assuming that the prosecution has proved the existence of the procedures and violations of the same, it would not become an illegal act, unless the procedures are statutory. In this case, prosecution has miserably failed to prove that the procedures spoken by the prosecution witnesses are statutory. It is not the case of the prosecution that A1 has obtained pecuniary advantage to himself by illegal gratification, as a quid pro quo, the same facilitates A3. In the absence of such a charge, the burden is heavily on the prosecution to prove that those facilities were knowingly followed with guilty mind to help M/s.Anand Agencies, and https://www.mhc.tn.gov.in/judis Page No.15/48 Crl.A.Nos.279 and 381 of 2012 hence, the prosecution has miserably failed to prove that A1 has mens rea.
10.6 Learned counsel appearing for A1 further submitted that P.W.2 and P.W.3 have clearly spoken about the character and conduct of A1 and they have clearly stated that, apart from this case, there is no other case or disciplinary proceedings pending against A1. Further, P.W.2 and P.W.3 have not come across anything adverse against the honesty and integrity of A1. He further submitted that though A1 was suspended from service, after enquiry, he was reinstated, because there was no dishonest intention on his part. Even in the complaint Ex.P431, there is no accusation of a criminal offence as against A1. In the complaint, it was stated that M/s.Anand Agencies had taken undue advantage of the negligence on the part of officials of Union Bank of India, Triplicane Branch. The main reason for giving accommodation to M/s.Anand Agencies is that previously, the said Agency remitted huge cash. The evidence of P.W.5 clearly shows that in case of bullion transactions, as the Banks find it difficult to handle huge cash, it is a normal practice that they operate Accounts with various Banks, so that they could remit cash in these Accounts and issue cheques from the Accounts for bullion https://www.mhc.tn.gov.in/judis Page No.16/48 Crl.A.Nos.279 and 381 of 2012 transactions. Thus, the cheques drawn on ICICI Bank from the Account of the same party, cannot be viewed as a major irregularity. The evidence of P.W.5 would further reveal that initially, M/s.Anandh Agencies were remitting huge cash regularly in their Accounts for clearing cheques. It is very difficult for the Cash Department of the Branch to count the heavy cash remitted by the parties. P.W.5 has also stated that it was very difficult for the Cash Department of the Branch to count the heavy cash remitted by the parties and during the tenure of A1, they were remitting only cash. Therefore, since there was difficulty in counting the cash in hand and ICICI Bank has got the counting machine, the amounts were credited to the ICICI Bank. Hence, only in order to avoid delay, the cheques, which were handled by A1, had been cleared on the same day and there was no intention for the delay. He further submitted that all the officers in all the Branches including Union Bank of India, Triplicane Branch, also adopted the same practice and therefore, for clearance of the cheques of M/s.Anand Agencies, the procedures adopted by A1 is not illegal one or against any statutory provisions. He further submitted that A1 cannot be held liable for clearance of the cheques which were presented on 13.02.2004 and immediate credits of the same, which in https://www.mhc.tn.gov.in/judis Page No.17/48 Crl.A.Nos.279 and 381 of 2012 fact, were given in the usual manner, which were also being deposited in lieu of cash as instructed by Regional Office. For the dishonour of four cheques by ICICI Bank, a legal notice was issued and ICICI Bank has failed to stick on specified timings of the clearance, and if these cheques would have been cleared, there is no loss to the Bank and hence, in respect of dishonoured cheques, A1 alone cannot be held guilty.
10.7 Insofar as the cheques of Union Bank of India i.e. Ex.P33 to Ex.P36 are concerned, those were presented by ICICI Bank on 13.02.2004 and they never have come to Triplicane Branch for clearance on 13.2.2004 and the same was admitted by P.W.2 during his cross examination. He further submitted that in the usual course, the alleged cheques should have come to the Service Branch of Union Bank of India and from there, they should have been sent by a messenger to the Triplicane Branch for confirmation of balance on 13.2.2004 itself, but those cheques did not come for clearance to Triplicane Branch. The prosecution propounded a peculiar theory that Service Branch would contact the Triplicane Branch over phone for getting confirmation, which is highly improbable.
https://www.mhc.tn.gov.in/judis Page No.18/48 Crl.A.Nos.279 and 381 of 2012 10.8 From the evidence of P.W.10, it is established that the theory of telephonic confirmation is untenable and invented for the purpose of exonerating Service Branch of Union Bank of India and mulct criminal liability on A1. The sanction order Ex.P428 is dated 27.6.2006, however, on 16.6.2004 itself, Union Bank of India has sent the legal notice to ICICI Bank, stating that the entire mistake is on the ICICI Bank and not on Triplicane Branch of Union Bank of India. The sanctioning authority has not properly applied his mind, when A1 knows very well the procedures adopted by all the Branches of the Bank(s). Since A1 is a poor person and came from the poor back ground and reached the higher position, in order to take vengeance, the Bank officials had taken action against him and the prosecution has also failed to prove its case that A1 entered into criminal conspiracy with the other accused persons and he has also committed breach of trust and committed misconduct. However, the trial Court failed to appreciate the entire evidence and erroneously convicted A1 for the offence under Section 409 IPC and Sections 13(2) r/w 13(1)(c)(d) of the PC Act. He further submitted that A2 was working as an accountant in the same Branch, but he was acquitted from the charged offences. However, for the very same charges, A1 was https://www.mhc.tn.gov.in/judis Page No.19/48 Crl.A.Nos.279 and 381 of 2012 convicted, which is highly perverse and improbable. Therefore, the appeal filed by A1 is liable to be allowed and he is entitled for acquittal.
11.1 Mr.T.Sivanantham, learned counsel appearing for A3 to A5 submitted that, no doubt A3 is the Proprietrix of M/s.Anand Agencies and the said Agency is having Account in the Union Bank of India, Triplicane Branch and they used to deposit the cash of the day-to-day collections in the said Bank. Since the cash was very huge and remitting amount was increased on day-to-day basis and M/s.Anand Agencies also deposited huge amount, the Union Bank of India, Triplicane Branch has no facilities to count such huge cash manually and in order to save time, the Bank has advised the parties to deposit the cash in the Bank, which has Cash Counting Machine and obtained cheques from that Bank, which would be easy for the Union Bank of India to make credits for the cheques. Hence, it is not the procedures and the practice adopted by A1 alone, but it is the procedures adopted by the Banks. A3, who is the Proprietrix of M/s.Anand Agencies, was not doing the day-to-day affairs of the business and only A4 and A5 were dealing with that but they were doing their business honestly and there is no conspiracy among those https://www.mhc.tn.gov.in/judis Page No.20/48 Crl.A.Nos.279 and 381 of 2012 accused persons and A3 to A5 have no intention to cheat the Bank. Even though, at one point of time, there were over dues, for which they have filed the case before the DRT. Once they have filed the case before the DRT, it is only debt that once it is recognized as a debt, there is no question of criminal conspiracy and there is no question of abetment and misconduct committed by the public servants. A1 has not committed any misconduct and A4 and A5 have not abetted him. Even, subsequently, the amount was settled in the Bank. Therefore, considering the facts and circumstances, the trial Court acquitted the A3 to A5 and there is no merit in the appeal filed by the CBI.
11.2 Learned counsel appearing for A3 to A5 further submitted that it is settled proposition of law that in an appeal against acquittal, the Appellate Court cannot interfere just like that automatically. The innocence of the accused was already established before the trial Court and the trial Court affirmed the innocence of A3 to A5. Further, the prosecution has to prove that there was a perversity in appreciation of evidence by the trial Court and there are compelling circumstances to interfere with the judgment of the trial Court, whereas, in this case, https://www.mhc.tn.gov.in/judis Page No.21/48 Crl.A.Nos.279 and 381 of 2012 neither the prosecution has proved that they rebutted the presumption of innocence affirmed by the trial Court, nor the prosecution established that there are compelling circumstances to interfere with the impugned judgment of the trial Court. Therefore, there are no merits in the appeal filed by the CBI in Crl.A.No.381 of 2012 and the same is liable to be dismissed.
12. Heard the learned counsel on either side and perused the materials available on record.
13. It is the allegation of the prosecution that A1 and A2 entered into criminal conspiracy with A3 to A5 for committing criminal breach of trust and to cheat the Union Bank of India by committing criminal misconduct by using the official position in the matter of showing undue favour to M/s.Anand Agencies by dishonestly and fraudulently releasing huge amounts by way of kite-flying operations. Further, A1 and A2, who were entrusted with or having dominion over the Bank funds dishonestly parted with the funds of the Bank by giving immediate credit to 11 high value cheques drawn on ICICI Bank, presented in the Account on https://www.mhc.tn.gov.in/judis Page No.22/48 Crl.A.Nos.279 and 381 of 2012 13.2.2004, but out of 11 cheques, 4 cheques totally amounting Rs.3,09,50,000/- were returned uncleared on Zone IV clearing on 14.2.2004. Hence, by clearing 4 high value cheques amounting to Rs.3 crores received in high value clearing on 13.2.2004 issued through ICICI Bank and State Bank of Travancore and by debiting the same on 14.2.2004, without balance in the account, wrongful loss to the Bank was caused to the tune of Rs.6,28,63,414/- and caused corresponding wrongful gains to M/s.Anand Agencies.
14. A3 being the Proprietrix of M/s.Anand Agencies, was doing the bullion business and distribution ship of Titan watches and other products. A4 and A5 were doing the business transaction and was handling transaction of the funds with the Bank. M/s.Anand Agencies was started in the year 2000 as a distributorship firm for the cosmetic divisions of the Hindustan Lever Limited and Timex Watches and in the year 2001, they obtained the distributorship of Amco batteries also. M/s.Anand Agencies opened an account in the Triplicane Branch of Union Bank of India on 10.07.2000 and sanction was accorded for CC hypothecation limit of Rs.20 lakhs by the Branch Manager. The limit was https://www.mhc.tn.gov.in/judis Page No.23/48 Crl.A.Nos.279 and 381 of 2012 further enhanced to Rs.25 lakhs by the Branch Manager and finally it was enhanced upto Rs.50 lakhs by the Regional Office. The Regional Office, on 5.11.2002, renewed the limit of CCH Rs.30 lakhs and WCTL at the outstanding level of Rs.12.51 lakhs and approved the change of business as bullion, as recommended by A1. The limit was further renewed by the Regional Office on the recommendations of the Branch Manager and finally renewed on 5.2.2004 at the existing level of Rs.30 lakhs and Working Capital Term Loans at Rs.6.54 lakhs. When the Union Bank of India, T.Nagar Branch started its bullion transaction, M/s.Anand Agencies was the major bullion dealer of the Branch.
15. A4 and A5 were the persons doing bullion transactions with T.Nagar Branch and the remittance towards booking of bullion transactions were received by way of credit advise from the Triplicane Branch. M/s.Anand Agencies opened a current A/c.No.4720 with ICICI Bank, Nungambakkam Branch for the bullion transactions and cheque clearing operations. M/s.Anand Agencies was purchasing bullion from ICICI Bank, Union Bank of India, MMTC and Jindal Dyechem Industries Pvt.Ltd. For the purchase of bullion, M/s.Anand Agencies was https://www.mhc.tn.gov.in/judis Page No.24/48 Crl.A.Nos.279 and 381 of 2012 issuing cheques from the Account of Union Bank of India. From September 2003 onwards, A1 and A2 were giving undue accommodation to M/s.Anand Agencies by fraudulent adjustment in the inward clearing cheques received in high value clearing by giving credit on the same day without balance in the account and making debit in the account only on the next day by giving immediate credit to the high value cheques drawn on ICICI Bank and sending them for the local MICR clearing and the actual realization would be received on the second day. For passing these outward clearing cheques by ICICI Bank on the second day, funds were transferred to ICICI Bank by way of pay orders purchased from the proceeds of the cheques, for which, immediate credits were given fraudulently.
16. On 13.2.2004, A1 gave immediate credit to 11 cheques drawn on ICICI Bank presented by A5. Though immediate credit was given, the high value cheques were sent to local MICR clearing on 13.2.2004, without sending them in high value clearing. By using the proceeds of the said 11 cheques, two pay orders favouring ICICI Bank Rs.1,68,00,000/- and Rs.1,87,00,000/- were issued and two cheques https://www.mhc.tn.gov.in/judis Page No.25/48 Crl.A.Nos.279 and 381 of 2012 Nos.853602 dated 11.2.2004 and 853601 dated 11.02.2004 for Rs.75 lakhs, each favouring MMTC which received high value clearance on 12.02.2004 through Bank of Maharashtra. Two high value cheque No.851177 dated 6.2.2004 for Rs.10 lakhs and 851193 dated 10.2.2004 for Rs.26 lakhs, favouring Jindal Dyechem Private Limited were received through high value clearance on 12.2.2004, through ABN AMRO Bank. Another two high value cheque No.851196 dated 12.2.2004 for Rs.75 lakhs, cheque No.851197 dated 12.2.2004 for Rs.39 lakhs favouring ICICI Bank were passed on 12.2.2004 itself and they were debited in the account on 13.2.2004 by A1. The above said 11 cheques sent in the local MICR clearing on 13.2.2004, but ICICI Bank cleared only 7 cheques on 14.2.2004 and returned the remaining 4 cheques amounting to Rs.309.5 lakhs in the Zone IV clearing on 14.2.2004 as the Account was not having sufficient funds.
17. Thus, on the Account of the outward clearing cheques on 13.2.2004, fraudulent entries were made by A1 causing wrongful loss of Rs.309.50 lakhs. On 13.2.2004, two high value cheque Nos.853603 dated 13.2.2004 and 853604 dated 13.2.2004 for Rs.75 lakhs each, favouring https://www.mhc.tn.gov.in/judis Page No.26/48 Crl.A.Nos.279 and 381 of 2012 MMTC drawn from the Account of Union Bank of India was received for clearing at Union Bank of India. Though there was no balance in the Account, they were cleared by A1 though telephonic confirmation to the Service Branch. Similarly high value cheque Nos.851200 and 853611 dated 13.2.2004 for Rs.75 lakhs issued in favour of ICICI Bank in the Account of M/s.Anand Agencies, were received in high value clearing on 13.2.2004 and was cleared by A1. Though these cheques were cleared, the account was not debited, as there was no balance in the Account. Those four cheques totalling Rs.309.50 lakhs was debited in the Account by A1. On 14.2.2004, A5 produced 11 cheques drawn on ICICI Bank, written by A5 which were signed by A3 along with pay order application and cheques favouring A3.
18. The Branch of the Bank did not give any immediate credit for these outward cheques and did not issue the ''pay order'', by which, the debit of these four high value cheques, cleared on 13.2.2004 could not be wiped out and thereby, debit balance went to around Rs.3,19,13,194/-. The transaction in the account of M/s.Anand Agencies also shows that A1 and A2 were fraudulently giving clearance of the high value inward https://www.mhc.tn.gov.in/judis Page No.27/48 Crl.A.Nos.279 and 381 of 2012 cheques without balance in the Account and was making debit of these cheques on the next day, after giving immediate credit to the outward clearing cheques drawn on ICICI Bank, without sending in high value clearing.
19. Thus, A1 and A2 have parted with the funds of the Bank to be utilised by A3 to A5 in the name of M/s.Anand Agencies for their bullion transactions. Further, for these fraudulent acts of giving immediate credits for outward cheques and delayed debits for inward cheques, A1 and A2 were keeping the outstanding amount in the Account of M/s.Anand Agencies within the sanctioned limit and thereby avoided to inform the Regional Office about the overdrawals allowed beyond their discretionary powers. During the period between 31.1.2004 and 14.2.2004, A1 and A2 were giving this accommodation facilities to A3 to A5 in the name of M/s.Anand Agencies by giving immediate credit to the inward clearing cheques, sent through local MICR clearing and thereby, parting with the funds of the Bank, over which, they had dominion the accused persons were dishonestly and fraudulently debiting the Account, so also the inward clearing cheques on the next day of clearing them and https://www.mhc.tn.gov.in/judis Page No.28/48 Crl.A.Nos.279 and 381 of 2012 the high value clearing by which, they were dishonestly keeping the debt in the Account was always within the sanctioned limit. A3, as a Proprietrix of M/s. Anand Agencies, by issuing the cheques of M/s.Anand Agencies with ICICI Bank and Union Bank of India for very huge value knowing fully well the reason to believe that the account was not having sufficient funds and that these cheques did not represent the huge transaction and they were only facilitating the kite-flying operations, by which, A5 was fraudulently enjoying the Bank funds without any sanctioned limits and thus, cheated the Union Bank of India. A4, who is the husband of A3 was managing M/s.Anand Agencies by rotation of funds by way of kite-flying operations, knowing fully well that there were no sufficient funds in the Accounts, which enabled the agency to enjoy huge funds of the Bank with which the M/s.Anand Agency was doing the bullion transactions and thereby, cheated the Union Bank of India.
20. Further, A4 had taken delivery of the bullion from T.Nagar Branch of Union Bank of India on various occasions. A5, as the brother of A4, was managing the affairs of M/s.Anand Agencies by writing the https://www.mhc.tn.gov.in/judis Page No.29/48 Crl.A.Nos.279 and 381 of 2012 cheques of the firm for its Account with Union Bank of India. A1 and A2, by virtue of their official positions as public servants, have committed criminal breach of trust and misconduct in respect of the funds of the Bank over which they had dominion by virtue of their official position and caused wrongful loss to the Bank to the tune of Rs.6,28,63,414/- and also caused corresponding wrongful gain to the accused persons.
21. M/s.Anand Agencies was having only credit facilities of Rs.30 lakhs and A1 and A2, who were working in the Union Bank of India, Triplicane Branch, allowed A3 to A5 to enjoy over and above the facilities knowing fully well that the said M/s.Anand Agencies was not having funds in their Account. The Branch Manager and Accountant of the said Bank allowed the Agency to enjoy the facilities upto Rs.6 crores.
22. The main defence taken by the accused persons is that it is the usual practice to allow the said transactions, which are unacceptable. The Account holder was only having the facilities of Rs.30 lakhs, but A1 allowed A3 to A5 to enjoy the facilities upto Rs.6 crores, which is highly unacceptable.
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23. It is not in dispute that, at the relevant point of time, A1 was the Branch Manager and A2 was the Accountant. Generally, in the Bank(s), without the knowledge of the Branch Manager, the Accountant cannot do anything. Therefore, all the above said clearances are done by both A1 and A2 and the oral and documentary evidence are also crystal clear that, from September, 2000 onwards, A1 was the Branch Manager and A2 was the Accountant of the Union Bank of India and they had given undue accommodation facilities to M/s.Anand Agencies by fraudulent adjustments in the inwards clearing cheques received in high value clearing, by clearing it on the same day without balance in the Account and making the debit in the account on the next day only, by giving immediate credit to the high value inwards clearing cheques drawn on ICICI Bank and sending them through local MICR, whereas, the actual realisation was being received only on the second day. The evidence of P.Ws.1 to 6 is clear and Ex.P359 also shows both debit and credit and also limit balance at the end of every transaction and the limit sanctioned to M/s.Anand Agencies is Rs.30 lakhs. Even Ex.P359 proved the authorisation made by A1 by issuing pay order for Rs.2,45,02,500/- against Cheque No.851148 dated 3.2.2004 and on the same day A1 was https://www.mhc.tn.gov.in/judis Page No.31/48 Crl.A.Nos.279 and 381 of 2012 authorised to issue pay order for Rs.1,25,02,500/- against the Cheque bearing No.851149. Therefore, from Ex.P359 itself, it is clear that M/s.Anand Agencies was permitted to enjoy the facilities over and above the sanctioned limit and though the learned counsel for the accused persons contended that, it is the prevailing practice in the Banks, but the same is not acceptable. No Banking practice would permit the Account Holder to transact over and above the credit limits.
24. In this case, the sanctioned limit to M/s.Anand Agencies is only Rs.30 lakhs, whereas Ex.P359 clearly shows that A1 issued pay order for Rs.2,45,02,500/- and another cheque for Rs.1,25,02,500/- Therefore, these procedures of the Banks clearly shows that these two Pay Orders increased the debit balance in the Account to Rs.5,35,22,897.88/- against the sanctioned limit of Rs.30 lakhs.
25. Therefore, evidence of P.W.1 to 7 clearly proved that, during the relevant period i.e. in the year 2004, A1 was working as Senior Manager, A2 was working as an Accountant and A3 was having Account in the name of M/s.Anand Agencies. A4 and A5 were dealing with the https://www.mhc.tn.gov.in/judis Page No.32/48 Crl.A.Nos.279 and 381 of 2012 said Account of A3. Therefore, all the accused persons knowing fully well that the sanctioned limit of M/s.Anand Agencies is Rs.30 lakhs, A1 and A2 allowed A3 to A5 to enjoy over and above the sanctioned facilities.
26. One of the defence taken by the accused persons is that DRT proceedings were initiated and money was also recovered and hence, it is clear that the money has been considered as debt and therefore, the accused persons cannot be prosecuted for the charged offences. Mere repayment of the money will not take away the offences committed by the accused persons.
27. This Court, being an Appellate Court and as a final Court of fact finding, has to necessarily re-appreciate the entire evidence and to give an independent finding. Accordingly, this Court has re-appreciated the entire oral and documentary evidence produced before this Court.
28. From the evidence of P.W.1 to 7 and especially from Ex.P359, it is clear that M/s.Anand Agencies enjoyed over and above the facilities sanctioned to the said Agency. All the accused persons have admitted that https://www.mhc.tn.gov.in/judis Page No.33/48 Crl.A.Nos.279 and 381 of 2012 the sanctioned limit of M/s.Anand Agencies is only Rs.30 lakhs. Further, A4 and A5 gave collateral security for Rs.30 lakhs alone. Therefore, Ex.P361 and evidence of P.W.3 also clearly show that inspection was conducted in the Branch on 31.1.2004 and during investigation, irregularities were committed by A1 were found. This Court, gone through the entire materials, so also the evidence of P.Ws.1 to 7. The practice adopted by A1 and A2 and also the oral and documentary evidence, it is clearly established that A1 and A2 accommodated A3 to A5 to enjoy over and above the facilities.
29. It is settled proposition of law that in order to prove the offence of conspiracy, there may not be any direct evidence and the conspiracy can be inferred from the conduct of the parties. This Court, while going through the entire materials, found the conduct of A1 to A5 and the prosecution had proved all the charges. It is true, that as stated by the learned Special Public Prosecutor that the documents Ex.P8 to Ex.P357 were marked with the consent of A3 to A5, which were not denied by A1 and A2 and the genuineness of the document is also not disputed. https://www.mhc.tn.gov.in/judis Page No.34/48 Crl.A.Nos.279 and 381 of 2012
30. The statement filed during questioning under Section 313 Cr.P.C., shows that the accused persons have admitted that Ex.P8 to Ex.P351 cheques, have been handled by them and the same was not questioned or challenged before the prosecution witnesses. Therefore, the prosecution proved that, at the relevant point of time, A1 was working as Branch Manager and A2 was the Accountant and A3 was the Proprietrix of M/s.Anand Agencies and A4 and A5 were managing the transactions with the Branch. A3, the sole Proprietrix, was solely responsible for the transactions of the firm. In this case, all the cheques were signed by A3, which were dealt with by A4 and A5 and they cannot say that they do not know the limit of the sanctioned facilities. They know very well that M/s.Anand Agencies was having sanctioned limit of Rs.30 lakhs and they were enjoying over and above the facilities of Rs.30 lakhs. It was found that M/s.Anand Agencies had financial difficulties, but was indulging in kite-flying operations. During 13.2.2004, it was found that debt aggregation to Rs.6.28 crores was issued. The debts were due to return of onward clearing of cheques to the tune of Rs.9.9 crores approximately through ICICI Bank. Further, it was found that due to cumulative transaction, M/s.Anand Agencies incurred substantial cause https://www.mhc.tn.gov.in/judis Page No.35/48 Crl.A.Nos.279 and 381 of 2012 and the party has indulged in kite-flying operations.
31. The ''modus operandi'' referred to in the complaint is the high value cheques drawn on Union Bank of India, were deposited by the said Agency and the high value clearing received at Service Branch, Chennai on the same day. The Service Branch, Chennai enquired over the telephone from negligent Branch regarding the balance of the amount in the Account. The Service Branch has not followed the procedures. The Branch has accommodated the clearing of the cheques on the second day against the high value cheques drawn on ICICI Bank to deposit money in the Triplicane Branch. The pay-in-slip has rotation to indicate the high value clearing by credit facilities and was also treating the same as high value clearance. The cheques were sent to Service Branch along with non-high value cheques for clearing on the third day and the Returns were received on the fourth day to get the cheques through ICICI Bank. Pay Orders were transacted on the second day in favour of ICICI Bank at Triplicane Branch against the clearing, unauthorisedly by Triplicane Branch, by ''pay order'' which was issued in intra ordinary debit balance in the account of Rs.3 lakhs. The Triplicane Branch did not report this https://www.mhc.tn.gov.in/judis Page No.36/48 Crl.A.Nos.279 and 381 of 2012 transaction in the F1 statement, but the debit balance in the Account got squad up by clearing cheques by sending high value cheques in normal clearance. The ICICI Bank was lodged by order in high value clearing and against the clearing thereof, but by honouring the cheques presented by Union Bank of India through M/s.Anand Agency, accused persons were taking advantage though the Bank officials with dishonest and mala-fide intention and wrongful gain was made to the extent of Rs.6.28 crores, for which A1 and A2 accommodated. Therefore, the guilty of A1 to A2 to accommodate M/s.Anand Agencies, is proved.
32. Therefore, it is clear that A1 has committed breach of trust and it cannot be stated that the Branch Manager and Accountant were not directly dealing with all transactions. As already stated, A3 being the Proprietrix of M/s.Anand Agencies had directly signed the cheques and she is having knowledge of sanctioned limit with respect to credit facilities, through A4 and A5, who have directly involved in the Bank transactions.
33. Evidence of P.W.8, being the General Manager of Union Bank of India, coupled with Ex.P28 being pay-in-slip and Ex.429, being https://www.mhc.tn.gov.in/judis Page No.37/48 Crl.A.Nos.279 and 381 of 2012 sanctioned order established the sanction accorded by PW.8 and this Court, as an appellate Court, finds that A1 to A5 committed the offences not only under Sections 13(2) r/w 13(1)(c) and (d) of the PC Act, but also under the offence under IPC. This Court finds that the findings of the trial Court are ex-facie. When once the prosecution established the foundational fact that M/s.Anand Agencies was having Account in the Union Bank of India, Triplicane Branch and they were having credit facilities with sanctioned limit of Rs.30 lakhs and when they were permitted to enjoy the over and above sanctioned facilities, during the relevant point of time, A1 was working as Branch Manager, A2 was working as Accountant, A3 who signed the cheque(s) and A4 and A5 who were dealing with business transactions of M/s.Anand Agencies, entered into criminal conspiracy in connivance with each other.
34. Though A2 had participated in the crime, the trial Court held that the prosecution has not proved all the charges framed against A2. Hence, the trial Court acquitted A2 against which, no appeal has been filed by CBI. CBI has filed appeal only against A3 to A5. https://www.mhc.tn.gov.in/judis Page No.38/48 Crl.A.Nos.279 and 381 of 2012
35. It is settled proposition of law that it is for the accused persons to rebut the presumption as already stated above and criminal conspiracy need not be shown as express conduct, which can be gathered from the conduct of the parties. The prosecution has proved that A1 along with A3 to A5 had facilitated in various transactions, near and about Rs.6.28 crores and it is for them to establish the guilt, this Court finds that the prosecution has proved its case with cogent and consistent evidence and the evidence of the prosecution witnesses inspires the confidence of this Court and prosecution has proved its case beyond all reasonable doubt in respect of A3 to A5.
36. This Court finds that A3 to A5 have committed the charged offences and they are not entitled to get acquittal. Since A3 to A5 are now liable to be convicted.
37. Therefore, the appeal filed by A1 in Crl.A.No.279 of 2012 is liable to be dismissed, confirming the conviction and sentence imposed on him in respect of the charged offences by the trial Court. The appeal filed by the CBI in Crl.A.No.381 of 2012 against the judgment of https://www.mhc.tn.gov.in/judis Page No.39/48 Crl.A.Nos.279 and 381 of 2012 acquittal of A3 to A5 with respect to charges framed against them have to be allowed. The prosecution has not filed any appeal against the acquittal of A1 in respect of charges framed under IPC. A1 has been convicted in respect of the charges framed under PC Act. Therefore, this Court cannot go beyond the scope of the appeal. However, this Court finds that A1 has committed the offences both under IPC and under PC Act and hence, the appeal filed by A1 in Crl.A.No.279 of 2012 is dismissed.
38. Accordingly, Criminal Appeal No.279 of 2012 is dismissed. The trial Court is directed to take steps to secure the custody of A1 to undergo the remaining period of sentence, if any. Consequently, connected miscellaneous petition is closed.
39. List Crl.A.No.381 of 2012 on 03.07.2023. A3 to A5 are directed to appear for the question of sentence.
09.06.2023 Index: Yes/No Speaking Order/Non-Speaking Order Neutral Citation Case : Yes/No ms https://www.mhc.tn.gov.in/judis Page No.40/48 Crl.A.Nos.279 and 381 of 2012 To
1.The XI Additional City Civil and Sessions Judge (CBI Cases relating to Banks and Financial Institutions) Chennai.
2.The Inspector of Police, CBI/BS &FC/Bangalore.
3.The Public Prosecutor, High Court, Madras.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
https://www.mhc.tn.gov.in/judis
Page No.41/48
Crl.A.Nos.279 and 381
of 2012
P.VELMURUGAN, J.
ms
Pre-Delivery Judgment in
CRL.A.Nos.279 and 381 of 2012
and
M.P.No.1 of 2012
09.06.2023
https://www.mhc.tn.gov.in/judis
Page No.42/48
Crl.A.Nos.279 and 381
of 2012
Crl.A.No.381 of 2012
P.VELMURUGAN, J.
This Court by its order dated 09.06.2023, directed the respondents/A3 to A5 to appear before this Court on 03.07.2023 for hearing on the question of sentence on them. Subsequently, in compliance of the order dated 03.07.2023, the matter is listed today (17.07.2023), for question of sentence.
2. Today (17.07.2023), when the matter was taken up for hearing, the respondents/A3 to A5 appeared before this Court. The respondents/A3 to A5 have already received the copy of the judgment dated 09.06.2023, from the Court.
3. The learned counsel for the respondents/A3 to A5 would submit that, the trial Court framed charges against all the accused viz., A1 to A5, for the offences under Sections 120-B read with Sections 409, 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The trial Court acquitted A1 and A2 for the offence under Section 120-B IPC and that, the prosecution has not filed any appeal against the said findings. Whereas, in paragraph No.36 of the order of this Court, it is stated https://www.mhc.tn.gov.in/judis Page No.43/48 Crl.A.Nos.279 and 381 of 2012 that “A3 to A5 have committed the charged offences and they are not entitled to get acquittal” which is inclusive of Section 120-B IPC. By placing reliance of the decision of the Hon'ble Supreme Court in TOPANDAS Vs. The State of Bombay reported in 1956 AIR 33, the learned counsel submitted that once, one of the accused is acquitted from the offence under Section 120-B IPC, the co- accused/remaining accused, should also be acquitted and the co- accused/remaining accused cannot be convicted for the said charge. In this case, since A1 and A2 were acquitted by the trial Court for the offence under Section 120-B IPC and the prosecution has not filed any appeal challenging the acquittal for the charge under Section 120-B IPC, the respondents/A3 to A5 cannot be convicted for the charge under Section 120-B IPC.
4. Heard the learned counsel for the respondents/A3 to A5.
5. As a first appellate Court, final court of fact finding, this Court can re-appreciate the entire evidence and give an independent findings that the respondents have committed the charged offences including Section 120-B IPC. However, as pointed out by the learned counsel for the respondents that, the co- accused/A1 and A2 were acquitted by the trial Court for the offence https://www.mhc.tn.gov.in/judis Page No.44/48 Crl.A.Nos.279 and 381 of 2012 under Section 120-B IPC and the CBI has not filed any appeal against the said findings of acquittal for the offence under Section 120-B IPC, this Court cannot traverse beyond the scope of appeal since the CBI has not filed any appeal against the said findings. Therefore, this Court does not give any separate punishment to respondents/A3 to A5 for the offence under Section 120-B IPC in order to avoid discrimination.
6. Insofar as the other offence viz. Section 420 IPC is concerned, this Court questioned the respondents/A3 to A5 regarding the sentence to be imposed on them. The respondents/A3 to A5 requested to show mercy on them.
7. The prosecution proved the charge for the offence under Section 420 IPC. This Court has elaborately discussed the reasons for conviction. A1 is charged for the offences under Sections 13(2) read with 13(1)(c) of PC Act and these respondents/A3 to A5, with connivance of A1 who is a Senior Manager/public servant, misappropriated the public money and played fraud on the bank. Therefore, this Court not inclined to show any leniency on the respondents/A3 to A5 since public money is involved in this case. Though the respondents/A3 to A5 stated that subsequently, they https://www.mhc.tn.gov.in/judis Page No.45/48 Crl.A.Nos.279 and 381 of 2012 have repaid the entire money within nine months from the date of filing of the case, it is well settled proposition of law that, repayment will not absolve any criminal liability especially, when misappropriation/fraud played on the bank which is dealing with public money.
8. Therefore, under these circumstances, this Court convicts the respondents/A3 to A5 for the offence under Section 420 IPC and sentenced to undergo five years Rigorous Imprisonment. Since, they have already repaid the entire amount, only a sum of Rs.10,000/- each, is imposed as fine. In default of payment of fine amount, the respondents/A3 to A5, shall undergo rigorous imprisonment for a further period of 6 months, which would meet the ends of justice.
17.07.2023 (1/2) ksa-2 https://www.mhc.tn.gov.in/judis Page No.46/48 Crl.A.Nos.279 and 381 of 2012 Note :
(i) Registry is directed to issue copy of this by today itself (i.e, on 17.07.2023).
(ii)Appellant/Police is directed to secure the custody of the respondents 1 to 3 to execute the period of imprisonment.
Copy to: The Superintendent, Central Prison, Puzhal. https://www.mhc.tn.gov.in/judis Page No.47/48 Crl.A.Nos.279 and 381 of 2012 P.VELMURUGAN, J.
ksa-2 Crl.A.No.381 of 2012 17.07.2023 (1/2) https://www.mhc.tn.gov.in/judis Page No.48/48