Karnataka High Court
Sri K S Anwar Basha vs State Of Karnataka on 25 September, 2023
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.731 OF 2010
CONNECTED WITH
CRIMINAL APPEAL NO.716 OF 2010
IN CRIMINAL APPEAL NO.731 OF 2010
BETWEEN:
R. SHIVAKUMAR
S/O N. RAMASUBRAMANIAN
NO.17/1, MUDDAPPA ROAD,
MARUTHI SEVA NAGAR,
BENGALURU. ... APPELLANT
(BY SRI S.P. KULKARNI, SENIOR COUNSEL FOR
SRI VASANTHA KUMAR K.M., ADVOCATE)
AND:
STATE BY INSPECTOR OF POLICE
CBI/ ACB
BENGALURU.
... RESPONDENT
(BY SRI P. PRASANNA KUMAR, SPL. P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET-ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
2
DATED 06.07.2010 PASSED BY THE XXXII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, AND SPECIAL JUDGE
FOR CBI CASES, BANGALORE IN SPL.C.C.NO.10/2008 -
CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 120(b) READ
WITH SECTIONS 468, 471, 477(A), 420 OF IPC AND
UNDER SECTION 13(1)(d) READ WITH SECTION 13(2) OF
PREVENTION OF CORRUPTION ACT 1988.
IN CRIMINAL APPEAL NO.716 OF 2010
BETWEEN:
1. SRI. K.S. ANWAR BASHA
S/O K.S. HASSAN SAB
2. SMT REHANA BEGUM
D/O K.S. ANWAR BASHA,
BOTH ARE R/AT NO.2051,
1ST MAIN ROAD,
SWAMY VIVEKANANDA EXTENSION,
DAVANAGERE
BOTH ARE NOW R/AT NO.1412/A-91-92
IST MAIN, IST CROSS,
D.C. TOWN SHIP
DAVANAGERE - 4
... APPELLANTS
(APPEAL AGAINST APELLANT NO.1 STANDS ABATED
VIDE ORDER DATED 28.7.2021 IN CRL.A.NO.731/2010
BY SRI HASHMATH PASHA, SENIOR COUNSEL FOR
SRI KARIAPPA N.A., ADVOCATE FOR APPELLANT NO.2)
3
AND:
STATE OF KARNATAKA
BY C.B.I./ ACB,
BANGALORE
REPRESENTED BY LEARNED
CBI PUBLIC PROSECUTOR ... RESPONDENT
(BY SRI P. PRASANNA KUMAR, SPL.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET-ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCES
DATED 6.7.2010 PASSED BY THE XXXII ADDITIONAL CITY
CIVIL & SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI
CASES, BANGALORE IN SPL.C.C.NO.10/2008 -
CONVICTING THE APPELLANTS/ ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTION 120(b) READ
WITH SECTIONS 468, 471, 477(A), 420 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 21.6.2023 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
Crl.A.No.731/2010 is filed by the appellant-accused No.1 and Crl.A.No.716/2010 is filed by the appellant- accused No.3 under Section 374(2) of the Code of Criminal 4 Procedure, 1973 (for short 'Cr.P.C.') for setting aside the judgment of conviction and sentence passed by XXXII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore (CCH-34) in Spl.C.C.No.10/2008 dated 06.07.2010 for having found the accused guilty and convicted and sentenced to undergo simple imprisonment for one year for the offence punishable under Section 120B of the Indian Penal Code, 1860 (for short 'IPC'), further sentenced to undergo imprisonment for one year and to pay fine of Rs.10,000/- each and in default of payment of fine, they shall undergo simple imprisonment for 6 months for the offence punishable under Section 420 of IPC, further sentenced to undergo simple imprisonment for one year and fine of Rs.10,000/- each and in default of payment of fine, they shall undergo simple imprisonment for 6 months for the offence punishable under Section 468 of IPC and further sentenced to undergo imprisonment for one year and fine of Rs.10,000/- each and in default of payment of fine, they shall undergo simple imprisonment 5 for 6 months for the offence punishable under Section 471 of IPC, further sentenced to undergo simple imprisonment for one year and fine of Rs.10,000/- each and in default of payment of fine, they shall undergo simple imprisonment for 6 months for the offence punishable under Section 477A of IPC and further sentenced the accused No.1 to undergo simple imprisonment for one year and pay fine of Rs.10,000/- and in default of payment of fine, he shall undergo simple imprisonment for 6 months for the offence punishable under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act').
2. Heard the learned counsel or the appellants in both the cases and learned Special counsel for the respondent - CBI.
3. The rank of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the prosecution is that the accused No.1-R.Shivakumar was the Branch Manager of UCO Bank, 6 Davanagere for the period from 5.5.2002 to 12.08.2004 and he is a public servant entered into criminal conspiracy with accused No.2-K.S.Anwar Basha (since deceased, charges abated) and accused No.3-Rehana Begum agreed to cause illegal acts of cheating, forging valuable security, using forged document as genuine, falsifying the accounts in connection with sanction of Mega cash loan of Rs.5,00,000/- sanctioned on 17.06.2003, UCO Shelter loan of Rs.5,70,283/- sanctioned on 16.06.2003 in favour of accused No.3-Rehana Begum with an intention to cheat the Bank. In furtherance of criminal conspiracy, accused No.2 forged the salary certificate at Rs.13,000/- per month, even though she was getting Rs.8,000/- per month and accused No.3 also forged the documents by creating the mortgage of the house property for getting loan with the Bank. Accused Nos.2 and 3 conspired with accused No.1 and created all the documents and obtained the loan which was sanctioned by accused No.1-the Bank Manager who is being a public servant involved in corrupt practice 7 and abused his official position and caused loss to the extent of Rs.5,97,753/-. After register of the complaint, the CBI registered the FIR and filed charge sheet against three accused persons.
5. The charges were framed against accused Nos.1 to 3, they denied the charges, pleaded not guilty and claimed to be tried. Accordingly, the prosecution examined 4 witnesses as per PWs.1 to 4 and marked 52 documents as per Exs.P.1 to P.52. After closing the evidence, the statement under Section 313 of Cr.P.C. was recorded. The case of the accused is one of the total denial, but not entered into any defence except marking Exs.D1 and D2 in the cross examination of PW.2. Hence, after hearing the arguments, the Trial Court found the appellants guilty, convicted and sentenced them as stated above. Being aggrieved with the conviction and sentence, accused Nos.1 and 3 have filed these appeals. Accused No.2 died after the Trial Court judgment and hence, no appeal was filed.
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6. Sri S.P.Kulkarni, learned Senior counsel for the appellant-accused No.1 has strenuously contended that the judgment of the Trial Court is not sustainable under the law. There is no material to prove there was conspiracy between accused No.1 and other accused. The offence under Sections 468, 477A are not applicable to the appellant-accused No.1. He has not created any document. He has only sanctioned the loan. He has not falsified the book. Even otherwise the amount borrowed by the other accused has been repaid. There is no cheating for causing the loss. There is no evidence to show the accused No.1 received any gratification and favoring accused Nos.2 and 3 in sanctioning the loan. There is no sanction obtained for prosecuting the appellant. The appellant- accused No.1 by following all the norms has sanctioned the loan. Therefore, convicting the appellant does not arise. Hence, prayed for allowing the appeal.
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7. Sri Hasmath Pasha, learned Senior counsel appearing for accused No.3 has strenuously contended that the evidence of the prosecution witnesses is not reliable. PW.1-the Chief Manager succeeded the accused No.1. He was not present while sanctioning the loan and he is not the author of any of the documents. Exs.P.1 to P.50 are the loan documents and none of them have been examined. He is the only person to produce the document and he has not spoken about the contents of the document. Therefore, there is no substantive evidence to prove the guilt of the accused. None of the loan applications and loan itself have not been proved. The FIR was registered without source report and it is inadmissible. There is violation of the principle laid down by the Hon'ble Supreme Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1. PW.4 has not stated anything about the accused. The confession statement is not admissible which is hit by Sections 25 and 26 of the Indian Evidence Act. 10 Exs.P.1 to P.50 have not been identified by him. The Investigating Officer collected specimen signature of accused No.2 as per Ex.P.42 and specimen signature of accused No.3 as per Ex.P.43 on 08.10.2005 and used the said signature for comparison to prove the signature along with the other documents in the Bank. But there is no substantive reliable evidence on record to prove the same and no admitted signatures collected by the Investigating Officer. There is no legal evidence. The learned Senior counsel further contended that mere marking of documents are not a proof until the contents are proved by examining the witnesses. The signature of accused Nos.2 and 3 are not proved. The opinion of PW.2 on the document has been accepted and loan has been granted. PW.3-Superior Officer verified as per the procedure and thereafter, loan has been sanctioned. There is dereliction of discharging official duty by the Bank officials. The accused No.1 had no knowledge about the same, 11 therefore, question of convicting the appellant does not arise.
8. Learned Senior counsel further contended that the FIR-Ex.P.51 registered by one Raju was not been examined. The basic foundation of registering the FIR has not been proved. The Trial Court committed error in convicting the appellants. There is no evidence to show the accused Nos.2 and 3 given any illegal gratification to accused No.1 in order to convict the accused under the P.C. Act. Hence, prayed for allowing the appeal.
9. The Special counsel appearing for the respondent has supported the judgment of the Trial Court and contended that under the old unamended P.C. Act, the sanction is not required, if a public servant while not in service at the time of filing the charge sheet. During the trial, there is no objections raised or disputed the issuance of sanction by the accused counsel, therefore, without pleading or dispute raised in the Trial Court, it cannot be 12 raised in the appeal. The sanction should be questioned in the initial stage itself and further contended that even if the entire loan has been paid, the criminal prosecution cannot be exonerated. The amount has been paid through One Time Settlement (OTS) facility, therefore, the charges cannot be exonerated.
10. Learned Special counsel further contended that the PW.1 speaks about all the documents and description has been given and there is no cross examination in this aspect and there is no dispute that the loan was not obtained. It was obtained and repaid. The handwriting expert opinion Ex.P.52 has been marked. There is no dispute in the cross examination. For registering the FIR without source report, it is not required to mention in view of Section 125 of the Indian Evidence Act. Except re- appreciation of evidence, the Court cannot interfere in the findings. Hence, prayed for dismissing the appeals. 13
11. Having heard the arguments on both side and perused the records, the point that arises for my consideration are.
"1) Whether the prosecution proves beyond all reasonable doubt that accused No.1 being Manager of UCO Bank and public servant conspired with the deceased-accused Nos.2 and 3 and agreed to do favour for falsifying the document and granted loan on the forged document furnished by accused Nos.2 and 3 and sanctioned the loan, thereby, caused financial loss to the Bank and thereby accused No.1 committed the offence punishable under Sections 120B, 477, 468, 471, 420 of IPC and Section 13(2) read with 13(1)(d) of P.C. Act ?
2) Whether the prosecution also proves that the accused No.3 along with the deceased-
accused No.2 fabricated the documents for getting loan, produced the same with accused No.1 and obtained loan of Rs.10,52,187/- and cheated the Bank, thereby committed for the offence 14 punishable under Sections 120B, 477, 468, 471, 420 of IPC ?
3) Whether the judgment of the Trial Court calls for interference ? "
12. Prior to the appreciation of evidence, it is worth to mention the evidence adduced by the prosecution in the Trial Court.
13. PW.1-Ravishankar is the Deputy Chief Officer of UCO Bank has deposed that he was succeeded accused No.1 as Branch Manager of UCO Bank, Davanagere Branch. In the year 2005, he has sent the documents in connection with the housing loan for Mega Cash Loan to the CBI Office, Bengaluru and on their request, the CBI Officials visited the Bank, he has shown the records and he has identified the handwriting of accused No.1 in Ex.P.1. The mega cash loan application filed by accused Nos.2 and 3 is Ex.P.2. The salary certificate of accused No.2 is Ex.P.3, It is stated that accused No.1 was attested on the said document which is marked as Ex.P.4. He also identified the 15 letter of wavier executed by accused Nos.2 and 3 is marked as Ex.P.5. The D.P. Note executed by accused Nos.2 and 3 is marked as Ex.P.6. The loan agreement executed by accused Nos.2 and 3 is Ex.P.7. The cash credit voucher issued by accused No.1 is Ex.P.8. The withdrawal slip for withdrawing Rs.2,00,000/- is marked as Ex.P.9 and eight cheques marked as Exs.P.10 to P.17. Form No.47 which is in the handwriting of accused No.1 is Ex.P.18. The housing loan application of accused Nos.2 and 3 is Ex.P.19. Sanction letter is Ex.P.20. Legal opinion is Ex.P.21. Memo prepared by accused No.1 is Ex.P.22. PW.1 further deposes that accused Nos.2 and 3 executed D.P. Note as per Ex.P.23. The loan agreement is Ex.P.24. Covering letter of accused No.1 is Ex.P.25. The valuation report submitted by accused Nos.2 and 3 is Ex.P.26. The encumbrance certificates are marked as Exs.P.27 to P.30. Tax paid receipt is Ex.P.31. Licence for construction is Ex.P.32. Commencement certificate is Ex.P.33. Approved plan for undertaking of work of construction is Ex.P.34. 16 Rental agreements are marked as Ex.P.35 to P.38. Ex.P.39 is the guarantee executed by one Mohammed Younis. The demand register extract and assessment extract are marked as Exs.P.40 and P.41.
14. He further deposes that on 8.10.2005, the CBI Inspector secured accused Nos.2 and 3 and obtained their specimen signatures and specimen signature of accused No.2 in 5 sheets is marked as Ex.P.42 and he also affixed his signature. Specimen signature of the accused No.3 is Ex.P.43. The loan application of accused No.3 is identified as Ex.P.44. The progress certificate in respect of construction is marked as Ex.P.45. The accused No.3 executed mortgage deed in favour of Reddy Co-operative Bank is marked as Ex.P.46. The certificate copy of the sale deed is Ex.P.47. He further deposes that on perusal of the above said documents, he has found that accused No.1 while sanctioning the loan and he has not properly assessed the income of accused Nos.2 and 3 and he has failed to obtain the salary certificate and other document 17 of income of accused Nos.2 and 3 and not collected the original sale deed, but he has collected only a copy of the documents. He further identified the statement of accused in respect of Mega Cash loan account marked as Ex.P.48. The shelter loan account statement is marked as Ex.P.49 and mutation extract is Ex.P.50.
15. PW.1 has admitted in the cross examination that he has not produced the guidelines regarding mega cash loan or shelter loan to the CBI officials and learned counsel for the accused No.1 has suggested that accused No.1 followed all norms and guidelines while granting loan, but it was denied by PW.1 but has admitted that accused Nos.2 and 3 availed loan from Reddy Co-operative Bank and the said loan has been taken over by the UCO Bank. He further admits that the opinion of the Panel Advocate has been accompanied with the Encumbrance certificate of sale deed along with the affidavit of accused No.3 as the original document is not able to produce but the copy of 18 the sale deed was produced. However, this witness denied there was no irregularities in sanctioning of loan.
16. PW.1 also denied the suggestions of the learned counsel for accused Nos.2 and 3 in the cross examination that there is no collusion between the accused persons in sanctioning the loan and the accused persons were regular in repayment. However, this witness admits he do not remember whether any legal notice issued to the accused Nos.2 and 3 for not paying the loan EMI. However, this witness admits that accused Nos.2 and 3 have repaid the entire loan amount by entering into the compromise with the Bank and the loan was repaid within the prescribed period.
17. PW.2-M.N.Keshavan who is panel advocate for the UCO Bank, Davanagere has deposed that he received the documents from the UCO Bank Manager for furnishing opinion. Accordingly, he has verified the document and given opinion as per Ex.P.21. He further deposes that he 19 also came to know that the said property was mortgaged to the Reddy Co-operative Bank, hence he has given endorsement furnishing opinion for creating equitable mortgage. In the cross examination, he has admitted that the applicant produced certified copy of the document along with the reasons under Ex.D.1 and further admits that he has given opinion that accused Nos.2 and 3 are entitled for the loan and he also verified the encumbrance and given opinion as per Ex.D.2.
18. On perusal of the evidence of PW.2 it is clear that based upon the opinion of this witness in Ex.P.21, the accused No.1 sanctioned the loan.
19. PW.3-B.V.Nilakanta Joish, a Zonal manager has deposed that accused No.1-Shivakumar was a Manager of the UCO Bank and his superior Kumarswamy told that there was some irregularities in UCO Bank, Davangere and submitted the report by inspection. Accordingly, he had visited the Bank, conducted the 20 inspection and account of accused Nos.2 and 3 and noticed that equitable mortgage created on the certified copy of the documents instead of original documents and equitable mortgage was not in accordance with law. In the cross examination, he has stated that he has not produced any documents containing the guidelines to the CBI Officer along with the statement. He further says that the loan sanctioned was not in accordance with the guidelines, but further admits the accused No.1 sanctioned the loan based upon the opinion of the panel advocate. He further admits Ex.D1 is the opinion of the panel advocate. He further admits accused No.3 filed affidavit for not producing the original document which is marked as Ex.D3. Though this witness denied that the accused No.3 complied the legal opinion of the panel advocate and though this witness further denied the suggestion that accused No.1 obtained the details from accused Nos.2 and 3 while sanctioning the loan, but says in Ex.P.3 as the income of accused No.2 is shown as 8,000/- and Ex.P.2 mega cash loan, she has 21 shown as 13,000/- and in the shelter loan, it is shown as 8,000/-. This witness further admits that the income of accused No.2 shown in Ex.P.2 and added Rs.5,000/-, it comes to Rs.13,000/-. The said amount was income from real estate. Further, this witness denied that there is no fault on the part of accused Nos.2 and 3 while availing loan and there was no conspiracy but admitted that the loan was cleared by the accused Nos.2 and 3 and further denied the accused No1 sanctioned loan on the opinion of the panel advocate.
20. PW.4-K.Hari Om Prakash, Inspector-CBI, has deposed that on 27.09.2005, he took up the investigation as per the direction of Superintendent of Police. He received FIR and identified the same as Ex.P.51. He has further deposed that he visited UCO Bank, Davanagere and enquired accused Nos.2 and 3 and also verified the documents. Accused Nos.2 and 3 stated that they were innocent, however, they admitted the loan was sanctioned according to the procedure. P.W.4 further deposed that on 22 03.05.2006, he collected documents in respect of loan application of accused Nos.2 and 3 and recorded the statement of P.W.3 and also the statement of P.W.1. It is further deposed that on 08.10.2005, he collected specimen signature of accused No.2-Anwar Basha as per Ex.P.42 and specimen signature of accused No.3-Rehana Begum under Ex.P.43. Then, he sent the disputed documents and signatures to Hyderabad for getting the opinion of the hand writing expert. Later, he issued opinion as per Ex.P.52 and then he filed the charge sheet.
21. Learned counsel for the appellant-accused No.1 cross examined P.W.4 and suggested that, without sufficient material, charge sheet has been filed against accused No.1, which was denied by this witness.
22. Learned counsel for accused Nos.2 and 3 cross examined P.W.4 where P.W.4 admitted that he had not produced any document to show that he collected the documents from the Bank and he also admitted that he 23 was not knowing the guidelines of the RBI to say accused No.1 violated at the time of sanction of loan.
23. Though P.W.4 has stated that he came to know that the salary certificate of accused No.2 was forged and in order to verify, accused No.3 registered with the commercial tax office for doing the business and he has stated that though he has visited the firm, but not enquired with the commercial tax office. He further admitted that he could not say whether the business of immovable properties by the accused would not come under the Commercial Tax Act. However, he has denied the false charge sheet filed against the accused persons.
24. On considering the entire evidence on record, P.W.1 who is Deputy Chief Officer of the UCO Bank has given the loan documents to the Investigation Officer and he identified the sanction of loan by accused No.1 in favour of accused Nos.2 and 3 and filing of application for sanction of loan by accused Nos.2 and 3. Accused No.1 24 sanctioned the loan on two categories, one is mega cash loan for Rs.5.00 lakhs and shelter loan for Rs.5.00 lakhs, which was not in dispute. It is also an admitted fact that accused No.1 sanctioned the loan based upon the opinion given by the P.W.2 - the panel advocate for the bank. Ex.P.21 is the opinion given by the said advocate.
25. The allegation against accused No.1 is that he has violated the guidelines of RBI and sanctioned the loan. The crucial documents of guidelines issued by RBI has not been produced by the prosecution and marked, in order to say specifically which guideline has been violated by accused No.1 while sanctioning loan. However, it is alleged by P.W.4-Investigation Officer and P.W.3-Zonal Manager of UCO bank that, while sanctioning the loan, equitable mortgage has to be executed in favour of the Bank by accused Nos.2 and 3 which is based upon the certified copy of the sale deed, but not the original sale deed. 25
26. On perusal of the records, the allegation against accused No.1 and 2 was that accused No.1 sanctioned mega cash loan to accused Nos.2 and 3 for Rs.5.00 lakhs wherein accused No.2 produced fake salary certificate. Even though she was drawing salary of Rs.8,000/- per month, but she has falsely produced the document stating that she was earning salary of Rs.13,000/- p.m. and on the forged document, accused No.1 sanctioned the loan in conspiracy with accused No.2. Another contention was that instead of getting the original sale deed in respect of the property of accused Nos.2 and 3 for executing equitable mortgage, accused No.1 received certified copy of the sale deed, thereby, he has violated the guidelines of the Bank. As I stated above, in order to show that accused No.1 violated the guidelines of the Bank, the very guidelines were not produced and marked by the prosecution and which of the guidelines is violated is also not placed before the Court to prove that accused 26 No.1 violated the guidelines of the bank while sanctioning loan to accused No.2.
27. That apart, the evidence of PW.1 is only in respect of producing the document to the Investigating Officer, though he has got identified the Ex.P.2 which is mega cash loan application filed by accused No.2 and Ex.P.3 is salary certificate of accused No.2 and this witness has stated only accused No.1 sanctioned the loan on the fabricated document. It is worth to mention the evidence of PW.2 who is a panel advocate who gave opinion as per Ex.P.21 for sanctioning the loan based upon the salary certificate produced by the accused No.2. It is also an admitted fact that subsequent to the case, accused Nos.2 and 3 paid the entire loan amount. However, the main allegation against accused Nos.1 and 2 are that accused No.1 sanctioned the loan on the fabricated salary certificate produced by accused No.2 by showing her salary as Rs.13,000/- instead of Rs.8,000/- per month. In order to show the salary certificate as fake or bogus or 27 fabricated one, the prosecution not examined any witness from the employer of the accused No.2 where she was working as a employee in a firm. That apart the signature of accused No.2 though collected by the Investigating Officer for the purpose of comparison, the admitted documents prior to the undisputed time was not collected for sending to the FSL for getting expert opinion. Therefore, the learned Senior counsel-Hasmath Pasha has rightly contended that there is no admitted signature sent along with the disputed signature for comparison and it is no where in the prosecution adduced any evidence to show the salary certificate was fabricated or bogus or fake and created by the accused No.2 and produced before the accused No.1 along with the loan application for sanctioning of the loan. Even otherwise, it is not the duty of accused No.1 to go and verify the veracity of the salary certificate produced by the loan applicant and he has depend upon the legal opinion of PW.2-panel advocate who gave opinion as per Ex.P.21. Therefore, the loan 28 sanctioned by accused No.1 purely based upon the legal opinion given by PW.2.
28. Moreover this is not direct loan granted by the accused No.1 in favour of the accused Nos.2 and 3 but it was taken over loan from the Reddy Co-operative Bank. That means, the accused Nos.2 and 3 were already obtained the loan from the Reddy Co-operative Bank and they are not able to repay the same, therefore, they approached the UCO Bank, the said loan was taken over by the UCO Bank by sanctioning the loan to accused Nos.2 and 3 and the original sale deed said to be produced by the accused No.3 in the Reddy Co-operative Bank. The PW.1 admitted that he has obtained loan document from the Reddy Co-operative Bank and handed over to the Investigating Officer. The Investigating Officer-PW.4 not produced those documents before this court and marked the same and none of the witnesses from Reddy Co- operative Bank were examined before the Court and no 29 other witnesses were examined by the prosecution to prove its case.
29. Therefore, I hold the prosecution failed to examine any witnesses to prove the contention of the fabrication of the document for seeking loan by accused No.2 and also failed to adduce any evidence to show the accused No.1 conspired with accused No.2 and sanctioned loan. It is purely based upon the legal opinion given by PW.2. The prosecution examined only 4 witnesses that too an Investigating Officer, two Bank Officials and panel advocate. No other witnesses have been examined to prove the guilt of accused as against accused Nos.1 to 3.
30. As regards to the another allegation against accused Nos.2 and 3 was that he has also obtained shelter loan from the Bank without producing the original sale deed and the accused No.1 sanctioned the loan as per Ex.P.19 by producing the valuation report as per Ex.P.26 and as per the guidelines for the purpose of sanctioning 30 loan for construction, the accused No.1 got executed the equitable mortgage agreement with accused Nos.2 and 3 without having original sale deed. But the accused Nos.2 and 3 furnished certified copy of sale deed as per Ex.P.47. Therefore, accused No.1 has said to be violated the guidelines by sanctioning loan of Rs.5,00,000/- to the accused Nos.2 and 3 for construction of the building. In this regard, granting loan, receiving the loan, filing loan application were all not seriously disputed by the accused. The main contention of the prosecution is that accused No.1 has violated the guidelines by accepting the certified copy of the sale deed while sanctioning the loan. In this regard, the prosecution examined PW.2-Panel Advocate Keshavan who has admitted in the cross examination that he himself given opinion that the certified copy of the sale deed can be acceptable for executing the equitable mortgage agreement. He has admitted that Exs.D1 ad D2 are the opinion in Ex.P.21 where he has categorically admitted and stated that the certified copy can be 31 acceptable for the purpose of executing the mortgage agreement and Ex.D3-affidavit filed by accused No.3 also admitted by him. Based upon Ex.P.21-legal opinion of PW.2, the accused No.1 sanctioned the loan and got executed the equitable mortgage agreement in favour of the bank. Except the evidence of PW.1 who is an Officer and successor of the accused No.1 as a Manager, he has produced only document and he has not spoken anything about the violation. Though, PW.3-a Zonal Manager who also alleged that there is a violation in sanctioning loan by accused No.1, but he also not produced any guidelines of the RBI specifically to show the accused No.1 has violated the guidelines. The Investigating Officer also not collected any guidelines. PW.3 admitted that the loan was sanctioned based upon the legal opinion of PW.2. Except these witnesses, the only Investigating Officer-PW.4 has given evidence, but none of the witnesses examined by the prosecution to prove the falsification of documents, fabrication of documents and violation of guidelines by 32 accused No.1. As I stated above, the said loan was taken over loan from the Reddy Co-operative Bank and these accused persons already obtained loan and the said loan has been taken over by the UCO Bank and by relying upon the opinion of the PW.2, the loan has been sanctioned. Such being the case, the question of presuming that accused No.1 violated the guidelines while sanctioning loan cannot be acceptable.
31. Moreover, the prosecution also not examined the very complainant who registered the FIR, but examined only the Investigating Officer who has been appointed by the Superintendent of Police but not the author of the FIR who is the complainant who collected the source report and registered the FIR but the said witness not examined by the prosecution, therefore, the very complaint and FIR went unproved. Though the learned counsel for the respondent has contended that the prosecution proved the case beyond reasonable doubt and merely making repayment that is not a ground for 33 acquittal. But when the prosecution itself failed to examine any of the witnesses especially complainant who registered the FIR on the source report and also any handwriting expert apart from the employer of the accused No.2 to show the salary certificate was fabricated. When the prosecution itself failed to stand on its own leg for proving the guilt of the accused and non examination of the material witnesses, the question of drawing inference against the accused does not arise.
32. As regards to the contention of the appellant that sanction is required for filing the charge sheet and taking cognizance cannot be acceptable since the unamended Section 19 of the P.C. Act, there is no requirement of any sanction for taking cognizance when the accused No.1 was dismissed from service at the time of filing the charge sheet. Though the learned counsel for the appellant relied upon the various judgments, but to the facts and circumstances of the case, those judgments are not required to be mentioned herein, as the prosecution 34 examined only four witnesses that too one Investigating Officer, two bank officials and a panel advocate-PW.2 who gave the opinion whose evidence will not support the case of the prosecution. Though the Hon'ble Supreme Court has held even loan was repaid, the criminal charges will not be exonerated and there is no second opinion in this regard, when the prosecution failed to adduce sufficient evidence before the Trial Court to prove the guilt of the accused. Such being the case, the contention of the respondent counsel cannot be acceptable.
33. Accused No.1 though he is a public servant and Bank Manager said to be violated the guidelines but the prosecution not produced any guidelines to show the violation and there is no evidence to show that he has conspired with accused Nos.2 and 3 for sanctioning of loan or creating the documents. On the other hand, the accused Nos.2 and 3 produced the documents along with the loan application that was referred to PW.2-a panel advocate and who gave opinion, thereafter loan was sanctioned. If 35 the legal opinion is not given, sanction of loan by accused No.1 does not arise at all and there is no evidence to show that he has misused the official position in favour of the accused Nos.2 and 3 for any pecuniary advantage. Absolutely, there is no material to prove the guilt of the accused. Therefore, for the above said reasons, I am of the view, the prosecution able to prove the charges leveled against them beyond reasonable doubt. Therefore, the benefit of doubt is extended to the accused and they are entitled for the acquittal.
34. In view of the reasons mentioned above, the judgment of the Trial Court is based upon the imaginary surmises and conjectures without any legal evidence. Therefore, the judgment of the Trial Court is liable to be set aside.
35. Accordingly, both the appeals filed by accused Nos.1 and 3 are allowed. The judgment of conviction and sentence passed by XXXII Additional City Civil and 36 Sessions Judge and Special Judge for CBI Cases, Bangalore in Spl.C.C.No.10/2008 dated 06.07.2010 is hereby set aside.
The appellant-accused Nos.1 and 3 are acquitted for the offences punishable under Sections 120B, 420, 468, 471, 477A of IPC and Section 13(2) read with Section 13(1)(d) of P.C. Act. Their bail bond stands cancelled.
If any fine amount is deposited, the same is ordered to be refunded to the accused.
Office to send the copy of the judgment and Trial Court record to the Court concerned to take further course of action.
Sd/-
JUDGE GBB/CS CT: SG