Kerala High Court
K.C.Arish vs C.B.I./Spe on 4 March, 2020
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941
CRL.A.No.209 OF 2000(C)
AGAINST THE ORDER/JUDGMENT IN CC 4/1998 DATED 28-02-2000 OF
SPECIAL COURT SPE/CBI-II,EKM
APPELLANT/12TH ACCUSED:
K.C.ARISH
S/O. DAMU, PANGATTU HOUSE,
KARIMPANAPALAM, BADAGARA,
KOZHIKODE DISTRICT
BY ADV. SRI.K.K.JAYARAJ NAMBIAR
RESPONDENT/COMPLAINANT:
C.B.I./SPE,
KOCHI
R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR,
SPL.P.P. FOR C.B.I.
R1 BY ADV. SRI.K.P.SATHEESAN, SC, FOR CBI
R1 BY ADV. SRI.S.SREEKUMAR, SC, FOR CBI
R1 BY ADV. SRI.M.V.S.NAMBOOTHIRY SC C.B.I.
R1 BY ADV. SRI.P.CHANDRASEKHARA PILLAI C.B.I.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2019,
ALONG WITH CRL.A.210/2000(C), CRL.A.211/2000(A), CRL.A.803/2000,
THE COURT ON 04-03-2020 DELIVERED THE FOLLOWING:
Crl.Appeal.Nos.209, 210, 211 and 803 of 2000
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941
CRL.A.No.210 OF 2000
AGAINST THE ORDER/JUDGMENT IN CC 4/1998 DATED 28-02-2000 OF
SPECIAL COURT SPE/CBI-II,EKM
APPELLANT/ACCUSED NO.15:
Y.VARGHESE
MUKAMKUNNEL, MAMPARA.P.O.,
MARUTHIMOODU, PERINADA,
PATHANAMTHITTA DIST
BY ADV. SMT.SHYLAJA VARGHESE
RESPONDENT/COMPLAINANT AND STATE:
1 GILLS.P.MATHEW
INSPECTOR OF POLICE,C.B.I/SPE KOCHI
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM
R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR,
SPL.P.P. FOR C.B.I.
R1 BY ADV. SRI.K.P.SATHEESAN, SC, FOR CBI
R1 BY ADV. SRI.S.SREEKUMAR, SC, FOR CBI
R1 BY ADV. SRI.M.V.S.NAMBOOTHIRYSC C.B.I.
R1 BY ADV. SRI.P.CHANDRASEKHARA PILLAI C.B.I.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2019,
ALONG WITH CRL.A.209/2000(C), CRL.A.211/2000(A), CRL.A.803/2000,
THE COURT ON 04-03-2020 DELIVERED THE FOLLOWING:
Crl.Appeal.Nos.209, 210, 211 and 803 of 2000
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941
CRL.A.No.211 OF 2000
AGAINST THE ORDER/JUDGMENT IN CC 4/1998 DATED 28-02-2000 OF
SPECIAL COURT SPE/CBI-II, EKM
APPELLANTS/ACCUSED NOS.3, 11 AND 14:
1 VEDADAS P.DAVID @ DAS
S/O.P.DAVID, PERUMATTIKUNNEL,KANNOTH,
MANJAPPADAM, KONDANCHERY PANCHAYATH,
CALICUT, R/O. PULIMUKAM HOUSE,JERUSELAM
BAZAR,PAZHANJI P.O.,THRISSUR.
2* A.S. MANI (DIED)
S/O. AROGYASWAMI, NO.24, R.K.K. NAGAR,
NEELIKONAM POLAYAM, SINGANELLOOR,COIMBATORE.
3 P.V. ABDUL KAREEM @ KAREEM
S/O. MOIDEEN KOYA, POTTAYATH HOUSE, NEAR
KAMPILIPPARAMBU U.P. SCHOOL,
OLAVANNA P.O., CALICUT, PRESENTLY AT NATHRUPOOJA
APARTMENTS, D1 NALLASUPPARA,MUMBAI.
(* - DEATH OF THE 2nd APPELLANT IS RECORDED VIDE
ORDER DTD 25.06.2019 IN CRA 211/2000)
SRI.K.K.JAYARAJ NAMBIAR
SMT.RAMYA PRASAD
RESPONDENT/COMPLAINANT:
INSPECTOR, CBI/SPE., KOCHI
REPRESENTED BY PUBLIC PROSECUTOR
CBI, HIGH COURT OF KERALA, ERNAKULAM
R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR,
SPL.P.P. FOR C.B.I.
R1 BY ADV. SRI.K.P.SATHEESAN, SC, FOR CBI
R1 BY ADV. SRI.S.SREEKUMAR, SC, FOR CBI
R1 BY ADV. SRI.M.V.S.NAMBOOTHIRYSC C.B.I.
R1 BY ADV. SRI.P.CHANDRASEKHARA PILLAI C.B.I.
R1 BY ADV. SRI.P.M.ZIRAJ
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-
2019, ALONG WITH CRL.A.209/2000(C), CRL.A.210/2000(C),
CRL.A.803/2000, THE COURT ON 04-03-2020 DELIVERED THE FOLLOWING:
Crl.Appeal.Nos.209, 210, 211 and 803 of 2000
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941
CRL.A.No.803 OF 2000
AGAINST THE ORDER/JUDGMENT IN CC 26/1998 OF
SPECIAL C SPE/CBI-II, EKM
APPELLANT:
V.P.MOHAMMED HANEEFA
S/O.KUNJAN BAVA
VAIYAPARAMPATH HOUSE
ESWARAMANGALAM, CALICUT
OF PULIMUKHAM HOUSE, JERUSALEM BAZAR
THRISSUR
BY ADV. SRI.B.RAMAN PILLAI (SR.)
RESPONDENT:
C.B.I. KOCHI
REPRESENTED BY THE STANDING COUNSEL
HIGH COURT OF KERALA
ERNAKULAM
R1 BY ADV. SRI.S.SREEKUMAR, SC, FOR CBI
R1 BY ADV. SRI.M.V.S.NAMBOOTHIRYSC C.B.I.
R1 BY ADV. SRI.P.CHANDRASEKHARA PILLAI C.B.I.
R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P.
FOR C.B.I.
OTHER PRESENT:
ADV.RAZIYA BEEVI(STATE BREIF) FOR THE APPELLANT IN
CRA 803/2000
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-
2019, ALONG WITH CRL.A.209/2000(C), CRL.A.210/2000(C),
CRL.A.211/2000(A), THE COURT ON 04-03-2020 DELIVERED THE
FOLLOWING:
Crl.Appeal.Nos.209, 210, 211 and 803 of 2000
5
COMMON JUDGMENT
These appeals are preferred by accused Nos.2, 3, 11, 12, 14 and 15 and 2 in a crime chargesheeted by the Inspector of Police, CBI, Kochi against 19 accused for offences punishable under sections 120B, r/w 380, 420, 411, 467, 471 and 472 IPC and 13(2) r/w 13(1)(d) of Prevention of Corruption Act 1988.
2. The crux of the prosecution allegation was that, first accused was working as a peon in the Canara Bank, Uphill Branch, Manjeri. In furtherance of a conspiracy entered into by him with the second accused, second accused committed theft of demand drafts marked as Exts.P3 and P5 series from the strong room of the bank in between December 1995 and 1996. He entrusted the demand drafts to the second accused, who in turn entrusted to the other accused. It was alleged that, they made false entries on the demand drafts, forged the signatures of the bank officials, affixed the forged seal of the bank on various demand drafts and encashed it through different accused. It was alleged that the first accused had handed over the demand drafts to the second accused at Thriveni Hotel, Parappanangadi for the fraudulent encashment of the demand drafts at Bombay and Tamil Nadu. As a part of it, first accused accepted a sum of Rs.500/- from the second accused at his house and on a further promise by the second accused to pay the remaining share to the first accused after successful forgery and encashment of the said demand Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 6 drafts. Second accused handed over some of the demand drafts to the remaining co-accused, A3, A10, A16 and A17 committed forgery at Alankar lodge in Paramagudi and got it encashed. Some of the demand drafts handed over to accused Nos.13 and 16 were forged at Bombay and accused Nos.5, 6, 7, 9, 14, 15, 18 and 19 forged them at "Top in Town"
Guest House at Bombay. Two demand drafts entrusted by 10 th accused were forged with the assistance of A12 and A14 and were encashed. The further allegation was that, some of the accused were common friends and they, in pursuance of the conspiracy forged the rubber stamps in the name of R.Janardhanan and Omana Mathew, who were the officials of Canara Bank. Several DD's were thus got encashed.
3. Apart from the general allegations of conspiracy and forgery, specific overt acts were attributed to each of the appellant/accused. M.O. (1)(d) rubber stamp made in the name of R.Janardhanan was seized from the residence of third accused by Ext.P16 search list. It was further alleged that the third accused and the 7 th accused with the assistance of the 10th accused and 16th accused affixed forged rubber stamps purported to be that of the officials of the bank at Alankar lodge at Coimbatore. Accused No.17 fraudulently signed on the demand drafts and affixed forged seal impression of Omana Mathew. It is further stated that, some of the accused entered into a conspiracy at Blue Star Hotel, Vatakara on 13.08.1996 and in furtherance of that conspiracy, they forged two demand drafts for Rs.1,17,500/- and Rs.1,00,000/- to be handed over to the Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 7 officials of a co-operative society at Paramagudi. Further allegation was that, 10th accused in pursuance of the above conspiracy, handed over the forged demand drafts to 12 th accused, who also joined the conspiracy. The above demand drafts were utilized by A12 for purchase of textiles from that society. The officials of the society encashed the above demand drafts without knowing that they were forged demand drafts. Further allegation was that, 16th accused had taken some of the demand drafts to Bombay in February 1996 and pursuant to the conspiracy entered into, some of the co-accused along with A14 and A15 manipulated it in Top in Town Guest House at Byculla and encashed several demand drafts through strangers or dealers.
4. Pursuant to the complaint laid, crime was registered and after investigation, final report was laid against all the accused. Before the court below, some of the accused faced the trial. On the side of the prosecution, in C.C.No.4 of 1998, PWs.1 to 71 were examined and Exts.P1 to P113 were marked. M.O.1 series and M.O.2 were identified. On the side of the accused, D1 to D7 were marked and DW1 was examined. Court below, on the basis of the available materials found some of the accused guilty of the offences alleged against them and convicted.
5. 11th accused was sentenced to undergo rigorous imprisonment for one year and to pay Rs.5000 as fine for offence, for each of offence under section 411 PC and 120B IPC A14 was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.3000 for offence Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 8 under section 411 IPC and rigorous imprisonment for three years and Rs.10,000/- for offence under section 467 IPC and rigorous imprisonment for one year and fine of Rs.3000/- for offence under section 120B IPC.
6. 12th accused was found guilty and was sentenced for offence punishable under section 411 IPC to undergo rigorous imprisonment for one year and to pay a fine of Rs.3,000/. A default sentence was incorporated. For offences under section 420 IPC, he was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.10,000/- with a default sentence. In respect of offence under section 471 IPC, he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in the case of default to undergo default sentence. For offences under section 120B IPC, he was directed to undergo imprisonment for one year and to pay fine of Rs.3,000/- with default sentence. 15th accused was directed to undergo rigorous imprisonment for three years and to pay fine of Rs.10,000/- with default sentence for offence under section 467 IPC. He was directed to undergo rigorous imprisonment for one year for offence under section 120B and to pay fine of Rs.3,000/- with a default sentence. The third accused was found guilty under section 472 IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs.10,000/- with default sentence. For offence under section 120B IPC, he was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.3,000/- with default sentence. Aggrieved by the above conviction Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 9 and sentence, accused Nos.12, 15 and 3 have preferred, three of the above appeals.
7. The second accused had absconded at the time of trial of C.C.No.4 of 1998. The case against him was split up and was refiled as C.C.No.26 of 1998. On the side of the prosecution, PWs1 to 71 were examined and Exts.P1 to P113 were marked. M.O.1 series to M.O.2 were identified. On the side of the defence, DW1 was examined and Exts.D1 to D8 were marked. He was found guilty and sentenced to undergo rigorous imprisonment for one year for offence under section 411 and to pay a fine of Rs.3,000/-. For offence under section 120B IPC r/w sections.380, 472, 420, 471, 467 IPC and section 13(2) of PC Act. He was directed to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/-.
8. Aggrieved by the above conviction and sentence, the second accused has preferred Crl.Appeal No.803 of 2000. The 3 rd accused, 11th accused and 14th accused have jointly preferred Crl.Appeal.No.211 of 2000. 12th accused has preferred Crl.Appeal.No.209 of 2000. Accused No.15 preferred Crl.Appeal.No.210 of 2000. Pending appeals, 11 th accused died and proceedings against him has abated.
9. Heard the learned counsel for the petitioners, learned counsel for the accused and learned Special Prosecutor for the CBI.
10. The first accused was the prime accused, who was the Head peon of the Canara Bank, Manjeri branch, during the relevant time. The Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 10 crux of the prosecution allegation was that, while working as the peon of the bank, he had allegedly stolen Exts.P3, P3(a) to P3(z), P5, P5(a) to P5(f) demand drafts from the strong room of the above branch. It was alleged that, he had access to the strong room, along with the custodian of the keys of the strong room. It was further alleged that, he handed over the demand drafts to the second accused, from whom, it reached the hands of several other co-accused. The further allegation was that, the conspiracy was then hatched at different levels with the involvement of several co- accused, at different stages at different places, one at parappanangadi, second one at Bombay and also at Paramagudi and after making entries on the demand drafts, they were distributed at different places and got encahsed.
11. PW2 was the Assistant General Manager of the Canara Bank who got information about the loss of the demand draft booklets. He made Ext.P1 complaint to the CBI which triggered the investigation. To establish the allegation that the demand drafts, which were allegedly recovered in the course of investigation, were in fact stealthily removed by the first accused from the Canara Bank Uphill branch and it was forged, the prosecution relied on several witnesses. The crucial witness relied on by the prosecution in C.C.No.4 of 1998 and C.C.No.26 of 1998 were PWs.2 to 6, PWs.9 to 14, 21, 22, 55, 56, 58 to 61, 66 and 68 who were the officers of the Canara Bank during the relevant period. PWs.16, 17, 23, 24, 25, 28, 37, 39, 44, 47, 48, 50, 54 and 65 were the officers of Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 11 various other banks who had at some point of time dealt with the forged demand drafts at different stages, at different places. PWs.26, 27, 29, 31, 32, 33, 35, 36, 38, 41, 42, 43, 45, 46, 49, 51, 52, 53, 57 and 67 were independent witnesses who, at some point of time have handled the DD's without knowing its real nature. PWs.7 and 34 were the payees of Ext.P3 and P3(a) demand drafts.
12. PW1 was projected by the prosecution as the crucial witness to link the first accused to the second accused and to show that the demand drafts which were stolen from the strong room were delivered to the second accused through PW1. The prosecution allegation was that, altogether 50 demand drafts and high value demand drafts were stolen contained in two booklets. 21 of the demand drafts were seized and investigation was not successful in recovering 23 of the demand drafts.
13. Admittedly, PW1 was known to the first and second accused. He deposed that, in January 1996, he was in search of some financial support which was conveyed to the first accused, whom he knew for the past 10 years. In this connection, first accused came to his shop and entrusted a cover. He informed PW1 that it contained demand drafts and requested him to deliver them to the second accused. He knew the second accused for the past 6 years. The next day, the second accused visited his shop and the packet was handed over to the second accused. After a week, first accused requested PW1 to reach Triveni Hotel at Parappanangadi. There, he met A1 and A2. The first accused complained Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 12 that, though demand drafts were handed over to the second accused, he did not give him the agreed money. He wanted PW1 to witness the handing over further DD's. It was handed over to A2. The cover was opened at the instance of PW1. He deposed that he saw a booklet of demand drafts. It had the name of Canara Bank inscribed. It was blank. On yet another occasion, he had gone to house of A2 with the first accused. There the second accused assured the first accused to pay more money on encashment of the demand drafts, through persons at Bombay and Madras.
14. Prosecution relied on the oral evidence of PWs.3, 4 and 9 who were the officials of the Canara bank to establish that demand drafts were stolen from the strong room of the Manjeri Branch and that first accused had access to the strong room. PW4 was the manager of the said branch during the relevant time. She was holding the key of the strong room along with PW9, who was another officer of the bank. It was deposed by both of them that the demand draft books were kept in the strong room. It was stated that on 31.12.1995 all items were verified and found to be in order. On 16.02.1996, it was noticed that the demand draft book was missing from the strong room. They deposed that, apart from the joint key holders, peon and Dafthery had access to the strong room. It was stated that in January 1996, they had undertaken a re-arrangement of stationery in the strong room. PW4 deposed that, after noticing the missing of the demand drafts, all the available demand draft books were verified with Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 13 the help of first accused and in the course of the search, it was noticed that the first accused was acting in an indifferent manner. He did not participate in the search held on 17.02.1996 and 18.02.1996. It was also noticed that, high value demand drafts were also stolen. The version of PW4 gets its corroboration from PW9, who was the joint holder of the above key.
15. PW3 was the Senior Manager of the Canara Bank, Malappuram Branch. He had deposed that the first accused was working as the peon of the Uphill Branch, Malappuram. The missing of files was reported by PW3 to the Circle Office, Thiruvananthapuram. Ext.P2 was the file relating to the above. He deposed that the strong room of the Branch was accessible to the joint key holders. The first accused had access to the strong room along with the above joint holders since his services were utilized by the said officers for taking valuables and files to the strong room and from there to outside. The version given in detail by PW3 regarding the functioning of the branch, accessibility of the peon to the strong room and the complaint laid by him regarding the missing of the files were corroborated by PW4 and PW9.
16. PW2 was the Additional General Manager Central Office, Canara Bank. He deposed that, he had received information from the branch regarding the missing of the demand drafts. Ext.P1 was laid with the concurrence of the superiors. PW5 and PW11 deposed that, they had worked in the Canara Bank. They denied the seal which was purported to Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 14 be in their name and deposed that, those signatures and the seal purported to be of them were fake and were not theirs. PWs.6 and 10 identified the various demand drafts which were seized by the investigation officer in the course of investigation. Both of them deposed that, those DDs were not issued by them. They also deposed that the seal and the signatures seen on the DDs were forged and that were not their respective seals or signatures.
17. PW22 was the senior manager of the Canara Bank, Bombay Branch who identified 23 DDs which were sent to the bank for collection. One demand draft came directly from one M/s.Akbar Travels. He deposed that, it was later found that, those DDs were stolen from the Canara Bank Uphill Branch, Malappuram. He gave details of the various DDs which were allegedly stolen and sent for collection through the branch.
18. Based on the version of the above referred witnesses, court below considered in detail whether Exts.P3 and P5 series of DDs were those DDs which were stolen from the Uphill Branch of the bank and thereafter fabricated, affixing the forged seal and signatures. Court below, relying on the version of PW3 and on the basis of Ext.P2 file concluded that, Exts.P3 and P5 series were those DDs which were missing from the Uphill Branch. On the basis of the evidence tendered by PWs5, 6, 10 and 11, Court held that the signatures on the DDs were forged. M.O.1(d) was the rubber seal purported to be that of PW5. M.O.1(a) to M.O.1(d) material objects were recovered from the house of Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 15 the third accused evidenced by Ext.P6 search list. MO1(a) was the punch, MO1(b) was the stamp pad, MO1(c) rubber stamp with wordings "A/c Payee". MO1(d) was the rubber stamp purported to be in the name of PW5. MO2 was the rubber seal in the name of PW10.
19. The evidence tendered by the witnesses clearly showed that, M.O.1(d) and M.O.2 were fabricated. PW69 was the expert who compared the entries in the disputed document with the admitted entries and gave Ext.P90 opinion. The above opinion coupled with the oral testimony of PW69 clearly establish that, Exts.P3 and P5 series of documents were forged. On a detailed evaluation of the entire evidence, court below concluded that the first accused had stealthily removed Ext.P3 and P5 DDs from the strong room of the Canara Bank, Uphill Branch. Another crucial material against the first accused was the recovery of Ext.P17 series of letters purportedly recovered from the house of 2nd accused. It was written by the first accused. The handwriting is confirmed by Ext.P90 opinion of handwriting expert. The above letters have specific reference to the demand drafts and was self incriminating. On a careful evaluation of the above materials, it is evident that convincing evidence was available on record which showed that the first accused had removed the DDs from the Canara Bank and were forged. The findings of court below is supported by material evidence and I find no reason to take a different view. It seems that the first accused had not challenged any of the above finding and is stated to have undergone the Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 16 sentence.
20. Coming to the individual responsibility of accused Nos.3, 12 and 15, the available materials have to be examined to ascertain the complicity of each of the accused. The crux of the allegation against the third accused was that, he was found in possession of M.O.1(d) seals purported to be in the name of PW5. It was allegedly used for forging several DDs which were submitted for collection. A perusal of M.O.1(d) seal from the house of the third accused is established by Ext.P6 search memo dated 04.05.1997. PW5 in his evidence specifically stated that, M.O.1(d) was a forged one and did not belong to him. As mentioned above, M.O.1(d) was seen impressed in several of above Exts.P3 series DDs. The report of the expert PW69 coupled with his opinion establish that, Ext.P3 series of DDs were forged. PW3 in his detailed evidence referred to the seizure of M.O.1(d) from the house of the third accused. Another witness to the seizure was PW20 who was the wife of third accused. Even though she turned hostile, she admitted that police had searched her house. PW69 expert had compared the disputed document and the disputed marking tallied with M.O.1(d) seal.
21. The above materials convincingly show that, MOs were recovered from the house of third accused. M.O.1(d) was used for forging the DDs. The third accused could not give any reasonable explanation regarding the possession of M.O.1(d) seal. Once it is established that, M.O.1 seal purported to be in the name of PW5 was made and used for Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 17 forging the DDs, the burden is completely on the third accused to explain the possession of M.O.1(d). In the absence of any valid explanation, the only explanation that could be arrived at was regarding the involvement of the third accused in the crime, without any reasonable doubt.
22. Regarding the complicity of accused No.12, crux of the prosecution allegation was that, in February 1996, he received Exts.P3, P3(a) forged DDs from the 10th accused and misused it by delivering it to PW7 and PW34 for purchasing textiles. According to the prosecution, the above accused had gone to a Co-operative store at Paramagudi at Coimbatore and had enquired about the value of textiles for making bulk purchase for Onam sale. After ascertaining the value of his bulk purchase, he returned and delivered Exts.P3 and P3(a) demand drafts which were, according to the prosecution, known to him to be forged one. The evidence of PWs.3, 4, 5, 9 and 10 convincingly establish that the above DDs formed part of the bunch of the DDs which were stolen by the first accused from the Uphill Branch of the Canara Bank. They bore the seal and signature of PW.5 and PW.10. Both the above witnesses have denied the seal and signatures seen on above DDs and deposed that both were forged. The prosecution was also successful in establishing that MO1(d) and M.O.2 seal which were fraudulently created were used for affixing on the DDs. The above MO's were recovered from the house of the third accused and 17th accused respectively.
Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 18
23. PW.7 is the payee of Ext.P3 DDs. He was the manager of the Gandhiji Weavers Co-operative society at Paramagudi, Coimbatore. He deposed that, he knew the 12 th accused. According to him on 10.08.1996, 12th accused came to the society and enquired about the price of 700 sarees, representing that he needed to purchase it for Onam sale. He was informed that the total value of 700 sarees would be Rs.2,17,500/-. He represented that, since money was huge, he had not brought cash and assured to return with DD's. He required the names of the payees. Names of four persons were given by PW7. 12 th accused, after gathering at the information left. He returned with Ext.P3 DDs in favour of PW.7 for Rs.1,75,000/- and Ext.P3(a) DD valued at Rs.1,00,000/- drawn in favour of the PW34 on 14.08.1996. PW7 submitted that both the DDs were sent for collection and that the money so collected was converted into an FD, evidenced by Ext.P15. He also identified the documents in relation to the collection of above DD's. The above witness deposed that later he understood that DD's were not genuine.
24. PW12 was the senior manager of the Canara Bank, Vatakara. He deposed that, he knew the 12 th accused. Ext.P33, which was an SB opening record relating to the 12 th accused, evidencing deposit of a sum of Rs.40,000/-. Proceeds of Ext.P24 was credited into the account of the 12th accused. He had withdrawn Rs.35,000/-from the above deposit.
25. PWs.16 and 17 were the managers of the Bank who were examined to prove the collection of the DDs given by the 12 th accused. Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 19 PW19 was the Accountant of the Blue Star Lodge who was examined to establish that, one room was rented out to the 12th accused on 13.08.1996. Essentially, it was intended to establish that conspiracy was hatched at that room.
26. PW34 was the clerk of the Co-operative society Paramagudi. He also deposed in tune with the evidence of PW7. He deposed that the 12th accused had purchased sarees from the above co-operative society and had delivered 2 DDs, one in favour of the PW7 and the one in favour of PW34. The versions of PW7 and PW34 convincingly establish that the second accused had delivered forged DDs to them which were ultimately encashed.
27. The above materials on record clearly show that the prosecution had succeeded in proving the handing over of 2 DDs by the 12th accused to PW7 and PW34 for valid purchase and had misused the DD. The fact that accused got the names of the payees and later came with DD's in their names clearly indicates that, 12 th accused had reasonable information that the DDs were forged. Hence, the guilt of the above accused was established by the prosecution by cogent evidence and was correctly appreciated by the court below.
28. The allegation against accused No.14 was that he committed forgery on Ext.P3 and P3(Q) and that he gave Ext.P3(j) to PW29. He was found in possession of Ext.P3(z). Prosecution relied on the oral evidence of PW8, PW29, PW64, PW69, PW70 and PW71 to establish the allegation Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 20 against this accused. It was alleged that A14 wrote the entries on Ext.P3(j). PW29 was a cloth merchant at Bombay. He deposed that Ext.P3(j) was received by him. One Oswal gave it to him. He presented the D.D for collection through his account. His evidence does not implicate A14 in any manner. PW64 was the branch manager of State Bank of Travancore. He deposed that, he had witnessed the search of house of A14. He deposed that Ext.P3(j) D.D was recovered from the house of A14, evidenced by Ext.P80 seizure mahazar. PW8 in his evidence referred to the role of A14 that he along with some of the co- accused wrote D.D. According to him, Megha Rajan, Nazar and Vijay Kumar come to Top in Town lodge to discuss with Najeel about encashing of D.Ds which they had brought. However, his evidence show that A14 was not present when the conspiracy to encash D.D's was hatched. His only evidence is to the effect that A14 filled up few DD's. The evidence of PW69 handwriting expert shows that Ext.P3(j) was in the handwriting of A14.
29. The above evidence clearly shows that Ext.P3(j) was in the handwriting of A14. The evidence of PW8 supports the allegation that A14 had filled up few DD's including Ext.P3(j). But, there is absolutely no evidence to show that he had used any of the forged DD's. It is true that Ext.P3(z) was recovered from the house of A14. He has not used it. There is nothing to show that A14 used any of the DD's or that he had received consideration. The evidence also do not disclose that he ever Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 21 knew that DD's were to be used as valuable security or for any illegal purpose. Definitely, filling up of blank DD form itself may probably indicate knowledge. However, that by itself is not sufficient to fasten criminal liability. There is nothing on record to show that A14 received Ext.P3(z) and P3(j) knowing it to be stolen property or that Ext.P3(j) was a valuable security. There is insufficient evidence to show that he had participated in any part of the conspiracy. Hence, I feel that, prosecution did not succeed in establishing criminal liability on the above accused.
30. The specific allegation against the 15 th accused was that, he had made certain endorsements in Ext.P3(d), P3(c), P3(h), P3(n), P3(p), P3(w) and P3(z) DDs. According to PW8, the above entries were made at room No.8 of Top in Town Guest House, Bombay. According to the witness, he was residing in one of the rooms in the above guest house along with the 5th accused. He deposed that few of the accused including the 15th accused used to meet in the above room. He further deposed that in February, some of the accused came to the lodge to meet the 15 th accused with few DDs. They were carrying about 20 DDs which were blank but were sealed. Few of the accused had forged some of the DDs there.
31. PW8 in his evidence had deposed that, some of the accused used to come to the room for few days and they used to consume liquor in the rooms. He could not specifically say at what time 15 th accused used to come to his room. He deposed that, on the first day of forging the DDs, Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 22 15th accused was not there. On that day, DDs were prepared but, because of the mistake, those DDS were thrown away. To a specific question as to whether there was any necessity to invite the 15 th accused to the room who regularly come to the above room, witness explained that since 15 th accused did not come to the room on the previous day, somebody had gone and brought the 15th accused to the room.
32. He deposed that he was not aware of the circumstances under which the 15th accused was brought to the room. One Najeeb had gone to bring the 15th accused. He could not explain as to whether the DDs allegedly written by the 15th accused were prepared on the same day. However, it is stated that the DDs were filled up within 2-3 days.
33. The evidence tendered by PW8 clearly shows that, he was staying in the Top in Town Guest House along with one Najeeb. DD leaves were brought there. Court below found the 15 th accused guilty on the ground that evidence tendered by the prosecution showed that the 15th accused had made certain entries. However, a close perusal of oral testimony of PW8 clearly shows that the 15 th accused did not participate in any part of the conspiracy. The only material spoken by PW8 was that, since 15th accused did not come to the room on the previous day, one person had gone to call the 15th accused and brought him. The version of PW8 does not disclose that, it was conveyed to 15 th accused that it was for forging the DDs. His evidence only show that somebody had brought 15 th accused to the room and he had filled up few DDs. The evidence of PW8 Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 23 independently does not disclose that the 15 th accused was aware of the nature of the document and also whether that accused was consciously participating in a forgery. The purpose for which the DDs were being filled up, the purpose for which it was likely to be used are not seen conveyed to A15. PW8 only deposed that the above accused had made certain entries. There is absolutely nothing on record to show that the accused knowingly participated in any conspiracy and the evidence on record also does not disclose that the 15 th accused was aware that he was forging certain DDs for an illegal purpose. Of course, it can reasonably be said that, he must be aware that, he was filling up certain DDs. In the absence of any evidence about knowledge regarding the conspiracy hatched among others for perpetrating an illegal act or any materials to show that the 15th accused knew that the DDs were likely to be misused and further, in the absence of any materials to indicate that the 15 th accused was conscious about the nature of transaction to which he had become a party, I feel that, it may not be safe to conclude that the above accused has knowingly participated in the commission of an offence. Hence, it may not safe to cast criminal liability on the accused on the sole evidence of PW8 that 15th accused had made certain entries on certain drafts which were misused by several accused. To that extent, he stands in the same footing as that of A14.
34. In the course of trial of C.C.No.4 of 1998, the second accused therein absconded. The case against him was split up and was later Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 24 refiled as C.C.No.26 of 1998. He faced trial before the court below in C.C.No.26 of 1998 along with few other accused. Identical materials as in C.C.No.4 of 1998 were placed before the court below. The specific allegation against the original second accused in C.C.No.4 of 1998 who was later arrayed as 4th accused in C.C.No.26 of 1998 was that, he along with the first accused had entered into the criminal conspiracy with the first accused in C.C.No.4 of 1998, who was the peon of the Uphill branch of Canara Bank to misuse Exts.P3 and P5 series demand drafts. According to the prosecution, after committing theft of above DDs, first accused in C.C.No.4 of 1998 handed over them to the second accused in C.C.No.4 of 1998. To maintain consistency, the second accused in C.C.No.4 of 1998, who was arrayed as the 4 th accused in C.C.No.26 of 1998, will be hereinafter be referred to as the second accused. The prosecution has a specific case that the second accused delivered the DDs to several other persons which were forged, manipulated and encashed through different sources with the aid of co-accused and submitted for collection at Paramagudi, Coimbatore and in Bombay.
35. To establish the guilt of the accused in C.C.No.4 of 1998, prosecution relied on oral evidence of PWs.1 to 71. Exts.P1 to P113 were marked. Mos.1 and 2 were identified. On the side of the accused, Exts.D1 to D8 were marked.
36. To prove the link between the first and second accused and to establish that the DDs were stolen by the first accused from the strong Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 25 room of Uphill Branch and that it was delivered to the second accused, prosecution heavily relied on oral testimony of PW1. It is seen from the prosecution allegation that, DDs which were stolen by the first accused were handed over to the second accused, who in turn entrusted it to the 10th accused. PW18 and 17 were examined to prove the complicity of different accused. PW69 was the handwriting expert. PWs.26, 27, 29, 31 to 33, 35, 36, 38, 41 to 43, 45, 46, 51, 53, 57 and 67 had dealt with the disputed DDs.
37. PW1 in his evidence deposed that, he had acquaintance with the first and second accused. He was in search of some financial support. He conveyed this to the first accused who had offered him to help him to avail a loan. Later, first accused entrusted a packet with PW7 informing him that, it contained DDs and requested him to hand over it to the second accused. After a week, first accused requested PW1 to reach a Hotel at Parappanangadi. It was informed by the first accused that those DDs were entrusted to the second accused. He had not given the money as offered. He further stated that the second accused had requested for more DDs and first accused offered to give the DDs only if he had paid the consideration for the DDs which were already handed over. To witness the handing over of further DDs, first accused had requested the presence of PW1. According to PW1, on the next Sunday, PW1 and the first accused went to the house of the second accused and demanded money from him. He assured to make payment on receipt of money from Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 26 Bombay and Madras on encashment of DDs entrusted to various accused. Second accused pleaded one more weeks time to pay the money. First accused confessed to PW1 that the second accused had entrusted only Rs.500/- for the DDs which were already handed over to him.
38. Evidence of PW1 was confronted and cross examined by PW1 in detail. However, a close perusal of evidence of PW1 clearly shows that it is free from any contradictions, omissions and embellishments. In other words, PW1 had spoken exactly in terms of the prosecution case. He had given clear, categoric and specific details of the entire transaction between the first and second accused. His version clearly shows that, there was delivery of the DDs by the first accused. The first accused had demanded consideration for the DDs entrusted to the second accused. There cannot be any dispute that the DDs could not have been legally handed over by the first accused to the second accused. The version of PW1 coupled with the materials placed by the prosecution establish that first accused had stolen DDs from the strong room of the Uphill branch. The conclusion that can be gathered is that, DDs which were stolen by the first accused were handed over by the first accused to the second accused through PW1. Court below relied on the version of PW1. After a close perusal of PW1, I am also unable to cast any doubt on the version of PW1.
39. PW3 is the Senior Manager of the concerned branch and PW4 was the Manager of the branch. He was jointly holding the key with another officer. PW4 deposed about the working of the branch, mode of Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 27 operation in the strong room and also how the first accused had access to the strong room along with the senior officers who had sought his assistance to carry cash and security from and to the strong room. He deposed that, on a routine verification, missing of the DDs were detected. According to the witness, missing took place during the period between 01.01.1996 to 16.02.1996. He had specifically deposed that, after the missing of DDs were detected, branch had undertaken a search. Though the assistance of the first accused was sought for the inspection, PW4 had specifically noted that the first accused was indifferent to the search.
40. PWs.5, 10, 11 were the officers of the Canara Bank who had power to sign the DDs. PW6 gave evidence tendering on the forgery of the DDs which were recovered in the course of investigation. The cumulative reading of the version of above witnesses clearly confirm the complicity of the first accused in the removal of the DDs from the strong room and that, these DDs were later misused.
41. PW2 at the relevant time was Asst. General Manager of Canara Bank, Central Office, Trivandrum during 1996-1997. He was the acting Deputy General Manager of the Bank and it was he who preferred Ext.P1 complaint before CBI, acting upon a report from Malappuram Branch regarding theft of a D.D. Book therefrom and fraudulent encashment of the same. According to PW3, who is Senior Manager of Canara Bank, Malappuram at the relevant time, Ext.P2 file having 181 pages was maintained in connection with missing of D.Ds. from Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 28 Malappuram Branch. So also, according to him, Ext.P2(a) is a letter sent by him to Inspection Section, Circle Office, Trivandrum regarding missing of D.Ds. Page Nso.176, 175 of Ext.P2 are letters issued to guard against fraudulent encashment of the D.Ds, involving genuine seal and signature. He disowned the seal found in Ext.P5(f) High Value D.D. The disputed signatures and seals were compared by PW69 Assistant Government Examiner, and issued Ext.P90 opinion and Ext.P92 reasons. According to PW69, the above mentioned stamped impressions tally interse. So when the evidence of PW69 Handwriting expert, PW70 attestor to P89 series, PW71 Investigating Officer, PW3 attestor to P6 search list at the residence of A3 and that of PW5 Janardhanan are considered together, the conclusion to be drawn is that the stamp impression of Janardhanan as found in the D.Ds mentioned above are not genuine stamp impressions of Janardhanan and whereas the same is impressions of counterfeit seal M.O.1(d) recovered from the residence of A3 under P6 search list.
42. Signatures of PW5 are affixed on Exts.P13 and P13(a) to (e). This is evidenced by the evidence of PW70 attestor and PW71 Investigating Officer. Signatures in P3(w) and in P3(w) are purported signatures of PW5 Janardhanan. PW69 the handwriting expert who compared them has expressed the opinion that the two sets do not tally thereby giving the inference that signature in P3(w) and signature in P3(x) are forged. The stamp impression and seal as found in some of the DDs were purported to be that of PW10 Omana Mathew who was the Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 29 special Assistant at Uphill Branch, Canara Bank in between 10.6.91 to 29.5.95. Adverting to the seal and signature purported to be of her as found in P3, P3(a), P3(b), P3(c), P3(e), P3(f), P3(g), P3(h), P3(i), P3(o), P3(p), P3(u), P3(y), P3(z) and P5(f), she testified that the same are not her genuine seal and signatures and according to her, her genuine seal was in italics and as on the dates referred in the DDs, she was not working at the Malappuram Branch. As per the evidence of PW71, Investigating Officer and PW63 attestor to Ext.P77, M.O.2 seal in the name of Omana Mathew was recovered from the residence of A17 - Palaniswami under P77 search list. PW10 - Omana Mathew disowned MO2 stamp impressions in P3, P3(a), P3(b), P3(c), P3(e), P3(f), P3(g), P3(h), P3(i), P3(o), P3(p), P3(u), P3(y), P3(z) in the name of Omana Mathew and her purported signatures in P3, P3(a), P3(g), P3(u), P3(o), P3(y), P3(f), P3(i), P3(b), P3(h), P3(e), and P3(z). They along with stamp impressions of MO2 as contained in P18 to P18(d) and specimen signature of Omana Mathew as contained in P19 and P19(a) were examined by PW69. He expressed opinion through P90 and P92 reasons. As regards to Ext.P18 to P18(d) and as regards P19 and P19(a), PW70 attestor and PW71 supported the genuineness. The opinion of the Handwriting Expert with respect to the stamp impression in the name of PW10 Omana Mathew as found in the DDs is to the effect that the same were impressions of MO2 rubber stamp which was seized from the residence of A17. As regards the purported signature of Omana Mathew contained in the DDs according to PW69, Handwriting Expert, Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 30 the same does not tally with the genuine signature of Omana Mathew. So the expert opinion with regard to the purported seal and signature of PW10 Omana Mathew was to the effect that the same are forged and manipulated.
43. The evidence of PW5, 6, 10, 11, 69 and 70 show that, DDs were manipulated at Bombay as well as at Paramagudi and were presented for collection. Court below has evaluated the entire evidence in detail and arrived at the conclusions touching on the guilt of the second accused. A clear evaluation of the above material show that the court below has correctly analyzed the role of the second accused and arrived at the conclusion of guilt on him. I find no reason to interfere in the above conclusion.
44. On an evaluation of the entire evidence, I am inclined to concur with the conclusions arrived at by the trial court regarding the roles played by the second accused (Mohammed Haneefa), third accused (Vedadas) and 12th accused (Adish). All of them were involved in the manipulation of the demand drafts and in transacting it. On a comparative evaluation of the individual roles, I feel that the second accused has a more prominent role, equivalent to that of the first accused. He has purchased for consideration all the DDs from the first accused and distributed it to the other accused who thereafter got involved in various different stages. It resulted in manipulation of several DDs. To that extent, among appellants, the role of the second accused Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 31 seems to be on a higher side. Still, considering the fact that the accused have been facing the trial since 1998 and the long period that has occurred in the meanwhile, I am inclined to take a lenient view and to modify the sentence appropriately, however, at the same time, holding the view that the 2nd accused stands on a different pedestal from that of the remaining accused. Hence, individual sentences will stand modified accordingly.
45. Regarding the roles played by the 14 th and 15th accused, the evidence is not sufficient to hold them guilty for offence alleged against him. Hence, 14th accused (Abdul Kareem) and 15th accused (Varghese) are entitled for the benefit of doubt and they are liable to be acquitted.
46. The second accused was found guilty for offence punishable under section 411 IPC and sentenced to undergo rigorous imprisonment for one year and a fine of Rs.1,000/- and in default to undergo SI for three months. For the offence under section 120BIPC r/w 380, 472, 420, 471, 467 IPC and 13(2) of the Prevention of Corruption Act, he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- or in default, to undergo six months simple imprisonment.
47. In modification of the above sentence, I feel that, while sustaining the sentence under section 411 IPC, the sentence imposed under section 120B IPC, substantive sentence of rigorous imprisonment for two years and a fine of Rs.5,000/-, in default of which, to undergo Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 32 simple imprisonment for three months will serve the interest of justice.
48. The third accused was found guilty for offence punishable under section 472 IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default, to undergo six months simple imprisonment. For offence punishable under section 120B IPC, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.3,000/- and in default, simple imprisonment for three months. Considering the entire facts, I feel that, while sustaining the substantive sentence for offence under section 472 IPC, a default sentence will stand modified to two months simple imprisonment. Substantive sentence for offence under section 472 IPC will stand modified to rigorous imprisonment for one year and to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for two months. For offence punishable under section 120B IPC, substantive sentence shall be one year rigorous imprisonment and a fine of Rs.3,000/- and in default to undergo simple imprisonment for one month.
49. Regarding accused No.12, he was found guilty for offence under section 411 IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.3,000/- and in default to undergo simple imprisonment for three months. For offence under section 420 IPC, he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/-. This will stand modified as rigorous imprisonment for one year and fine of Rs.3,000/-. In default of which, he Crl.Appeal.Nos.209, 210, 211 and 803 of 2000 33 shall undergo simple imprisonment for one month for offence punishable under section 411 IPC. For offence under section 420 IPC, accused shall undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for two months. Crl.Appeal.Nos.803 of 2000, 209 of 2000 and 211 of 2000 will stand allowed in part. While confirming the conviction, substantive sentence will stand modified accordingly.
50. 14th and 15th accused stands acquitted. Accordingly, Crl.Appeal.No.210 of 2000 stands allowed. Crl.Appeal.No.211 of 2000 stands allowed in part acquitting the 14 th accused. The bail bonds executed by them stand discharged and above accused are acquitted. Sentence imposed on the remaining accused shall run concurrently and the period undergone by them shall be set off against substantive sentence.
In the result, Crl.Appeal.No.210 of 2000 is allowed. Accused is acquitted. Crl.Appeal.No.211 of 2000 allowed in part acquitting the 14 th accused and modifying the sentence of third accused. Crl.Appeal.Nos.209 of 2000 and 803 of 2000 will stand allowed in part while maintaining the conviction, sentences will stand modified as above.
Sd/-
SUNIL THOMAS
Sbna/ JUDGE