Madras High Court
C.Murugasamy vs The Inspector Of Police on 8 June, 2020
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.Nos.824 & 821 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 11.11.2019
Pronounced on : 08.06.2020
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
CRL.A.Nos.824 & 821 of 2011
1.C.Murugasamy ... Appellant in C.A.No.824 of 2011
2.S.Visweswaran ... Appellant in C.A.No.821 of 2011
Vs.
The Inspector of Police,
SPE/CBI/ACB/Chennai.
(Crime No.R.C.No.14(A) of 1996) ... Respondents in both cases
PRAYER in C.A.No.824 of 2011: Criminal Appeal filed under Section
374(2) of the Code of Criminal Procedure, to set aside the order of the
trial Court convicting the appellant and sentences of him imprisonment
for one year ad payment of fine in C.C.No.29 of 1998 by order dated 28th
day of October 2011 passed by the 2nd Additional Judge (CBI Cases)
Coimbatore and acquit the appellant.
PRAYER in C.A.No.821 of 2011: Criminal Appeal filed under Section
374(2) of the Code of Criminal Procedure, against the Judgment of the
learned II Additional District Judge (CBI Cases), Coimbatore in
C.C.No.29 of 1998 dated 28.10.2011.
For Appellant
in C.A.No.824 of 2007 : Mr.S.N.Amarnath
For Appellant
in C.A.No.821 of 2008 : Mr.P.Parthikannan
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http://www.judis.nic.in
Crl.A.Nos.824 & 821 of 2011
For Respondent
in both cases : Mr.K.Srinivasan
Special PP for CBI Cases
*****
COMMON JUDGMENT
The appellant in C.A.No.824 of 2011 is A2 and the appellant in C.A.No.821 of 2011 is A3 in C.C.No.29 of 1998. They were convicted by the Judgment dated 28.10.2011 rendered by the II Additional District Judge (CBI Cases), Coimbatore. During trial A1 died on 27.08.2008 and hence charges against him abated. The trial Court convicted A2 and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for three months under Section 120B r/w 419, 420, 468, 468 r/w 471 IPC and 419 IPC (3 counts), 420 IPC (3 counts), 468 IPC (3 counts), 468 r/w 471 IPC (3 counts) each. The total fine amount imposed on A2 is Rs.6,500/-. Further, A3 was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for three months under Section 120B r/w 419, 420, 468, 468 r/w 471 IPC and 420 IPC (6 counts), 468 IPC (6 counts), 468 r/w 471 IPC (6 counts) each. Total fine amount imposed on 2/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 A3 is Rs.9,500/-. The sentences were ordered to run concurrently.
2.For the sake of convenience and clarity, the appellants are referred according to their ranks, as mentioned in the charge.
3.The case is that the Inspector of Police, SPE/CBI/ACB/Chennai/respondent had laid a charge sheet in Crime No.RC.No.14(A) of 1996 against A1 K.Jayaraj who was employed as Manager of Canara Bank, Nadupalayam Branch during 1994 in Scale-I capacity, A2/C.Murugasamy, a permanent resident of Chottaiyankadu AD colony, Getticheviyur, Gobichettipalayam Taluk, Erode, working as Generator Operator in Canara Bank of Nadupalayam Branch since 1989 and A3 is the close friend of A1 and his brother-in-law J.Jayakumar.
4.During the year 1994, A1 to A3 entered into a criminal conspiracy to do an illegal act to cheat Canara Bank by fabricating false receipt and using the same as genuine in encashing the loan amount, in some cases impersonating themselves as loanees for non-existing persons. In pursuance of the conspiracy, loans were sanctioned in the 3/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 name of C.Murugan on 06.06.1994 who is a non existing person for a sum of Rs.25,000/- and in pursuance of the conspiracy, A2 C.Murugasamy fraudulently and dishonestly forged the signature of C.Murugan on the loan application, specimen signature card, Pro-note, agreement deed-cum-hypothication. Further, A1 obtained a stamped receipt signed by P.S.Devarajan by making a false representation and issued DD in favour of P.S.Devarajan and subsequently, encashed the amount through Deverajan’s account. Likewise A1 along with A2 made false representation to C.Udayakumar, C.Mayilsamy, K.Maran, S.Yuvarani, R.Suresh under demand pro-note small business loan (DPN/SB) and K.S.Visweswaran, S.Usha Rani, K.S.Thulasi, V.Sarangam, R.Saroja, S.Mary, Jayagopal, Shakila Banu, Kuthrath Ali under demand pronote retail trade loan obtained their signature on the loan applications and connected records. In pursuance of the conspiracy, A2 and A3 filled up the loan applications of above said loanees and fraudulently and dishonestly with intention to cheat the bank obtained blank stamped receipts and fabricated the same with false particulars and some loans were obtained for coconut business using the signature’s already obtained in blank stamped receipts. Thereafter, A1 to A3 4/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 misappropriated the loan amount fraudulently and dishonestly for their personal use and thus cheated the Canara Bank, Nadupalayam Branch resulting in unlawful loss to the tune of Rs.3,75,000/- with corresponding unlawful gain to themselves.
5.During trial, prosecution examined 37 witnesses and marked 107 exhibits. None were examined on the side of defence and no documents were marked.
6.On conclusion of trial, the learned trial Judge put the incriminating materials to the accused under Section 313 Cr.P.C., the appellants/A2 and A3 denied the same. Upon appreciating the evidence let-in by the prosecution, the trial Court found the appellants/A2 and A3 guilty and convicted them as stated above. As against the conviction and sentence, appeals are filed.
7.The contention of the learned counsel for the appellant/A2 in Crl.A.No.824 of 2011 is that A1 who was the Manager of Canara Bank got benefited from all the transactions. Since he died during pendency of 5/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 trial, case against him stand abated. In view of the same, no proceedings could be proceeded against A2. Admittedly, in this case the beneficiary of the loan transactions is A1. One J.Jayakumar who is the brother-in-law of A1 had colluded with A1 in commission of offence. He was very much available and his whereabouts are also known to the respondent. The said Jayakumar and one Usharani were neither shown as witness nor added as an accused. No reason was given by the prosecution for the same. The FIR in this case came to be registered after verification of records. A2 being the part time Generator operator who was very much available in the bank when the enquiry was conducted prior to initiation of the case, he was not shown as an accused in the FIR. Since the officials of Canara Bank found no materials against A2, his name does not find place in FIR. On the contrary, for obvious reasons the respondent Police have implicated A2 in the final report. The transaction in this case has not proved any nexus between A2 and other accused and there was no material to remotely infer that A2 was in conspiracy with other accused in commission of any offence.
6/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011
8.He further contended that all the witnesses in this case have categorically admitted that A1 with malafide intention swindled the amount and they have not spoken anything against A2. None of the witnesses have stated that they have seen A2 signing or executing any documents in the bank, which later was found to be forged. The lower Court placed heavy reliance on the evidence of hand writing expert/PW35 and his report Ex.P104 but failed to look into the fact that PW35 and his report Ex.P104 cannot be considered as substantial evidence. He further contended that A2 had been acquitted by the trial Court in C.C.No.28 of 1998 for similar charges of cheating and forgery and the evidence in this case is almost similar. Further, the house of A2 was searched and nothing incriminating could be found. In view of the same, A2 ought to have been acquitted from the above case. The prosecution failed to prove the case beyond reasonable doubt with regard to the case of forgery and conspiracy. Hence he prayed for acquittal of A2 from the conviction and sentence of the trial Court. 7/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011
9.The contention of the learned counsel for the appellant/A3 in C.A.No.821 of 2011 is that the name of A3 does not find place in FIR and he had been implicated in this case for the reason that he is a close friend of Jayakumar, who is the brother-in-law of A1. In the absence of non examination of Jayakumar, whose whereabouts are known to the respondent, A3 cannot be prosecuted. Further, there is nothing to show that A3 conspired with other accused in the commission of crime. The house of A3 was searched and no incriminating material was found. None of the bank witnesses and loanees have stated anything against A3. In fact no witnesses have identified A3 as the person who filled up the vouchers, promissory notes, loan application and using the same obtained demand draft and later encashed it in his name. In this case the witnesses viz., PW1 to PW4 are the employees of Canara Bank, PW5 to PA18 are the private persons, PW9 to PW28 are the RDO, VAO and post men, PW35 is the hand writing expert, PW36 and PW35 are the Investigating Officers. PW7 and PW9 are the two persons who have stated that they knew A3. PW7 admitted the photo in Ex.P10 is that of him and he had only signed in the loan document and to escape from the 8/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 loan he has given such explanation as though the same was signed at the instance of A3, likewise PW9 has stated that the signature in Ex.P14 is his signature and Ex.P13 is that of his wife and the particulars were furnished by him. He has also stated that in order to escape from the loan he had signed the same at the instance of Jayakumar, brother-in-law of A1 and the accused A3. Non examination of Jayakumar is fatal to the prosecution case.
10.He further contended that PW9 is working as Office Assistant in AbdulKani Madharasa Islam Higher Secondary School, Erode and he is an educated person. In this case, the said Jayakumar and Usharani had not been examined as witness or made as accused, despite their whereabouts known to the respondent. In this case A3 has been made as a scape goat. The lower Court has commenced the trial in this case on 02.11.1995 against A1 and A2 and not against A3. A1 has filed a quash petition before this Court in Crl.O.P.Nos.31111 & 31112 of 2003 and the same were dismissed on 08.06.2010. Thereafter the trial Court on 08.10.2010 issued summons to the accused and framed charges. On going through the entire evidence, the trial Court failed to look into the 9/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 fact that there is nothing to show that A3 conspired with the other accused. There is no evidence to show that A3 had forged the signature of the loanees. The bank officials had categorically stated that usual procedure was followed in processing the loans. All the transactions had taken place in the normal routine manner. In the evidence produced by the prosecution, no witnesses have stated anything against A3. The trial Court on a wrong premise had convicted A3 based on the evidence of PW35/hand writing expert and Ex.P104, his report, which is only secondary in nature and it cannot form a basis for conviction of A3. Hence, he prayed for acquittal.
11.The learned counsel for the appellant in C.A.No.824 of 2011 relied upon the citations in the case of R.Ashok Karnad Versus State and the case of S.V.L.Murthy Versus State rep. By CBI, Hyderabad for the proposition that for the offence of cheating and conspiracy the prosecution to establish that there have been meeting of mind at that time when the facility had been granted. Such meeting of mind on the part of the accused persons has not been proved. 10/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011
12.Per contra, the learned Special Public Prosecutor appearing for the respondent submitted that the respondent received credible information that A1 Jayaraj while working as Manager in Canara Bank had entered into criminal conspiracy with other accused to cheat the Canara Bank, Nadupalayam Branch. In pursuance of the conspiracy, the accused disregarded the rules and regulations of the bank, sanctioned loans in the name of known persons using their address, created false documents on the basis of the forged documents with ulterior motive obtained the loan amount, thereby caused wrongful loss to the tune of Rs.8,32,500/- in the name of 22 persons. Thereafter, a case came to be registered on collecting documents and recording the statement of witnesses after completion of investigation charge sheet was filed against A1 to A3.
13.The trial Court after analyzing the evidence and materials produced, convicted the appellants/accused as stated above. In this case A1 was the Manager of Canara Bank, Nadupalayam Branch from 19.02.1992 to 07.07.1994. During the period, A1 in conspiracy with A2 11/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 and A3 used the name of known persons by producing the particulars and getting their signatures on false representation. Thereafter, created documents for the loans such as small business loan, retail trade loan and loan for coconut business. A2 and A3 in conspiracy with A1 had signed certain documents, used the same and obtained DD created in their accounts and in some cases in the name of fictitious person account. Thereafter, caused wrongful loss to the bank and made corresponding wrongful gain to themselves.
14.He further submitted that the witnesses in this case PW1 to PW4 are from the Canara Bank who had categorically stated about the procedures followed in the bank for distribution of loans and about A1 filling up the particulars on blank signed documents and taking away the money along with A2 and A3. PW5 and PW6 are the brothers of A2 who has stated that the signature found in Ex.P2 is not that of PW5 and it is forged. PW7 and PW8 are known to A3 whose particulars have been used and signatures were obtained on false promise. PW8 has denied the signature found in Ex.P13. PW10 has clearly stated that though his signature is found in Exs.P15, 16 & 17, he had signed at the instance of 12/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 A1 and the particulars in Exs.P16 & 17 had been filled up by A1.
15.PW11 admitted his signature in Ex.P18 and Ex.P19 and further stated that he has signed the same at the instance of A1. PW12 has signed in Ex.P20 & P23, PW13 has signed in Ex.P24 & P28. All these witnesses had signed in blank documents at the instance of A1. PW14 has clearly stated that he had filled up Exs.P15, P18, P21, P24, P25 to P27, P29 to P33 at the instance of A1. Hence it is proved that the signatures were obtained from known persons by taking advantage of their illiteracy and they being rustic villagers, the accused encashed loan amount for their own benefit. PW35, hand writing expert had clearly stated about the forgery committed by the accused by his report Ex.P104.
16.PW16 to PW19 were the house owners and postmen respectively who prove the fact that the address shown in the loan applications were false. PW20 to PW29 are the VAO who prove the fact of non existence of persons in the address mentioned in the loan application forms. PW30 to PW34 has stated about A1 that he took bribe from them for sanction of loan. PW36 and PW37 are the investigating 13/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 officers. The trial Court on proper analysis of evidence and materials produced by the prosecution had rightly convicted the accused, which need not to be interfered with. The accused failed to cross examine the witnesses and the evidence of the witnesses are not challenged and denied. Prayed for dismissal of the appeal.
17.This Court considered the rival submissions and perused the materials available on record.
18.PW1 to PW4 are the witnesses from Canara Bank, who stated the procedure followed in bank while granting loan and the document to be executed by the loanees. The loanees in this case are PW5 to PW18 who categorically stated that they had not executed the loan agreements, though some of the witnesses admitted that their names were used. PW5 and PW6, brothers of A2 categorically stated that they have not applied for any loan, availed the same and the documents in their name are fabricated one. Further PW5 and PW6 stated that A1 and A2 were proximate with each other. PW7 admitted her photo found in Ex.P16, but as regards other particulars she denied the same and also stated that 14/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 she signed the loan proposal on the request of A3.
19.PW9 the friend of A3 admitted that he signed Ex.P14 at the instance of A3 further stated that A3 is the close friend of Jayakumar, who is the brother-in-law of A1. Thus the proximate contact between A1 to A3 is clearly proved. The loanees have denied the particulars found in the loan documents. They have stated that they signed the documents at the request of A1 to A3. The loanees are uneducated and rustic villagers. It is clearly proved that the signatures were obtained in blank unfilled documents, later it was filled with false particulars, thereby, created false documents using forged documents, loans were passed, money was encashed in the accounts of fictitious persons and in some cases without the knowledge of loanees. The illiteracy of the villagers was exploited by the accused. The witnesses from the Canara Bank have clearly stated that in some of the loans, EMI was paid without the knowledge of loanees, proving the fact of A1 to A3 operating the accounts of the loanees, encashed money and projected the same as though it is genuine. The fraud of issuance of loan came to light after transfer of A1 from the Canara Bank, Nadupalayam Branch. PW35, the Hand Writing Expert in 15/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 his report Ex.P104 finds the signatures and hand writing of A1 to A3 tallied with the disputed documents. The persons who were projected as inscribers to the documents had denied the same. On the other hand, hand writing and signatures of the accused persons were similar and identical, tallied with the disputed writings and signatures. Thereby the fact that the accused created forged documents and using the same as genuine in commission of offence of forgery and cheating the funds of the Canara Bank, Nadupalayam Branch have been proved.
20.As regards A2, the loan granted in the name of PW5 had been proved to be false. A2 using PW5's signature had obtained the loan amount from SB account of P.S.Devaraj, likewise the business loan in the name of C.Mayilsamy was disbursed based on forged documents executed by A2. The retail loan in the name of non existing person V.Sarangam was encashed by A3 in SB account No.3001. For one of the loans A3 executed a stamp receipt in the name of Saroja. PW7 categorically stated A3 obtained signature in Ex.P10 for non existing person K.Jayagopal for retail trade loan. PW23, the VAO in his report Ex.P37 proved that no such person was residing in the said address 16/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 which was confirmed by PW17 the postmen. The loan amount of PW8 and PW9 was withdrawn by A3. PW8 and PW9 have categorically stated that the loan documents Ex.P13 and Ex.P14 were obtained by A3. Thus A2 and A3 in conspiracy with A1 had prepared forged bogus receipts, using the same as genuine, encashed the loan amounts.
21.Thus this Court finds that the prosecution has clearly proved the case beyond reasonable doubt against A2 and A3 through cogent evidence and documents. The trial Court on analyzing the evidences in detail with the corresponding documents had given a well reasoned Judgment which need not be interfered with. On the facts and circumstances of the case, the citations relied by the learned counsel for the appellant/A2 are not applicable.
22.In view of the same, this Court finds that there is no reason to interfere with the Judgment dated 28.10.2011 rendered by the learned II Additional District Judge (CBI Cases), Coimbatore in C.C.No.29 of 1998. Hence, the conviction and sentence of the Court below is confirmed. In the result, these Criminal Appeals stand dismissed. The 17/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 Court below is directed to take appropriate steps to secure the appellants/A2 and A3 to undergo their remaining period of sentence.
08.06.2020 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No vv2 To
1.The Sessions Judge for Exclusive Trial for Bomb Blast Cases, Poonamallee, Chennai.
2.The Inspector of Police, Q.Branch, CID, Villupuram, Villupuram District
3.The Public Prosecutor, High Court, Madras.
18/19 http://www.judis.nic.in Crl.A.Nos.824 & 821 of 2011 M.NIRMAL KUMAR, J.
vv2 PRE-DELIVERY JUDGEMENT IN Crl.A.Nos.824 & 821 of 2011 08.06.2020 19/19 http://www.judis.nic.in