P Shivadasan vs C B I Bangalore on 7 July, 2010

[Cites 9, Cited by 0]

Karnataka High Court

P Shivadasan vs C B I Bangalore on 7 July, 2010

Bench: N.Ananda

IN THE £1101"! COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07"' DAY OF JULY 2010

BEFORE

THE HONBLE MRJUSTICE N. ANANI_)_:A'" 3...:   

CRIMINAL APPEAL No. 1301/2Qo.:2V.A'_j V 
BETWEEN: ' '

Sri.P.Shivadasan,

S/o Late P.'I'hupran,

Aged about 40 Years.

Resident of: __ 
P-2. Mathrusree Apartrri¢':~1;ts._«'A

511* Cross, III Main,  ~
Basavanagar, '~ V V
Bangalore - 560 0.137.   

w\«\_7orked;a;1_s;;;..TAV'[ 'fa;  --
Data Entry ope'.m;ox=,_   . _
New India Assurance C».oj'i,_tci._,
Divisionalﬂffice-VI_,V  "   
40, Lakshn'1i_.C0.mplexA._ " V
K.R.R_.3a.d, 'V ..   *

 Bangalore --- 56{')"002_._____. ...Appellant

 -Sri.Iom3rv:vSebastian. Sr. Advocate for M/s.Tomy
' $eb&asti.a,h»..V&"Assqciates)

AND__: 

 *C.B.I.. " v 
" .,I}'oan;galore. ...Respondent

(13.3% 'sri.c.H.Jadhav, Adv.) This appeal is ﬁled under section 374(2) against the judgment ét.20.07.20()2 Spl.C.C.-47/98 on the file of the XXIAdd1. c.cI{.__& M Spl. Judge for C131 Cases, Bangalore, appellant / accused No.2 for the offfiliceshi..pi1nishable.f u/5.1208, 420, 465, 468 use and sw...i3(2) r/Tvms{1') (c:)"of'*-- P.C.Act and the appellant / accused 'is_Vs"en"tei'iced to i' V undergo R.I. for a period of____3-,yc.a_rs for each? of the offence u/s.420 and gay" fine of Rs.10,000/- for each ofthe ¢tf£é'n¢e'1.ig;r§5V4'2p and 468 IPC i.e., to suffer S.I}V'for a:13er"i'od and further sentenced to of"three years for the offence 'f1"J.I't"h3e1'-' to suffer 12.1. for a periodikof of the offence u/s. 465 IPC and sec';~1:3(--2) iV3_('1'3~,_(d). of P.C.Act and to pay fine of Rs.10,000/'+~,fo'r the offe'n.ce u/s. 13(2) of the said Act and to S.I. fo:'_.a period of nine months. Substantive V'sen.t'enc'e:s shall run concurrently 8: etc. coming on for final hearing this day. the._(_3ourt pa-s'sed the following:

mzgie I3 sIi,U__1l_§%.mMcccc§,,}?§.._.I The appellant arrayed as Accuse=:ir' "

Spl.C.C.No.47/1998. on the file o.f"XX,.1'Aclclllvibity' CM: &_ Sessions Judge and Special Bangalore City, convicted sentencedl v.for._:"0ffences * it punishable under sections 468'r.A/_w_1:.§2OB IPC and also for offences :Lxn'de:r_se.ctions 13(2) r/W 13{1){d) of the_F'revent'io11:iof"C&o.r_ru.ptioii"Act. 1988 (for short, 'the._.£*.<::t'f},iiLa.'S pre_ferred__«-- ajjﬁeai.

2. have éebastian, learned senior counsellfor' £l[l)1'IH_'*,._l.'lVd'.i:IV'l't V/*a:c'ctised No.2 and Sri C.H.Jadhav, learned connselfor respondent/C.B.1. _V Before"-._proceeding to narrate the ease of .prcstecnti_on,'~;it'V is necessary to state that accused No.1, who had been convicted along with accused No.2 had l':1;e__cl Crl..A.No.1467/2002 and he died during pendency of °th'e'"said appeal resulting in abatement of the appeal. i\"'~ Q *L..JP'!A/'--@€(/\ I Accused No.3 was acquitted. The respondent / C..'B.I. has not preferred any appeal against the judgrnentp of acquittal of accused No.3.

4. In brief, the case of prosecution is as fo'i~1._owjsﬁ=--. A"

During the year 199495. a;;'¢1:ses y_N-o.l.;was«working'. as a Senior Assistant inp Motor '"VVei1icie_--vn Branc£'1.i'--~oif~_ M/s.New India Assurance C0.rn'pyanyV.Lirni*tAe:d_;, xbvivﬁsiional 'A Office No.11! at M.G.Road. Bangaiore,_ Acciusede-ﬂIo.2 was working as a Data -M/s.New India Assurance Company was working as a Senior. inthe sa'id"Cornpany.

5. It'_is._the. tease'i'ofi'prg;secution, during the period between Marci: V199'4,}m.d January 1995, accused 1 to 3 entieiregipinto a c'ons.p«iracy in furtherance of which, they 'h.ad--v.c1*ea'te't1 fictitious claims in the names of severai persons.' \ai1op.a1'were not even policy holders. Accused 1 to 3 had salsoiinﬂated compensation payable in respect of N I4.'/Lm.0f4"

accused No.2, who in turn approached PWs. 1'? to 19, 22 to 25, 27 to 31 and made a false representation. that certain commission amount payable to him wasvV.p2ai_d*.._in the form of cheques drawn in the names .

19, 22 to 25, 2'? to 31 and they»Ashou1d"obvi--ixgeb'a«cc':ise.d No.2 to encash the cheques and'».:ret_urp:' the cont'ei:it_s accused No.2. Accordingly,.'PWs. 1V'7"ﬁ_t'o 19,s."fZd2_' to 31 encashed the chequesizxand _retur'r:e:d' cash to accused No,2_ who in snared the same with accused 1 2 V 2 it A

8. As we1v;§:re";a.e'g1ifi.g ":a.';')p.ea1 filed by accused No.2 j'u.d'g.1_'nen_t of conviction, we are concerned'vIith'V.t«heA'cbnaz;§es. framed against accused No.2 andgincrirnin-ating evidence adduced by prosecution to prndve against accused No.2.

1 'ci1far'..v'L_;=es framed against accused No.2 are thus:-

_ Fifthly, you Sri.P.Shivadasan {A2}, wgvlgile functioning as a public servant in the capacity as a Data Entry Operator in the New India Assurance Company Limited, I)iv.No.3. ;*\/. --F/x--L-~ Ga, Mahalakshmi Chambers, M.G.R0acl, Bangalore, during March 1994 to January 1995 entered into criminal con5l3iraCY witl:.p".""»s Accused No.1 Sri Manivannan and Accused'-:""-- No.3 R.Kodandaram, officials of '7' Assurance Company Limited, Mahalakshmi Chamber. M.G'b.§o'a'é.A_ Ban;gail'ore.V by corrupt or illegal rneans1'_A_Ao'17v abusing your official.*iVp.ositicu:=:_ as servant entered into criniinai conspiracy with 'yourself and di'sif1ones't'iy. p_:'fab;ticated"'*hogbus MOI) claims m-?:he--.p 9? fictitious claimants 'and ir;_}"urtii_ex{anee -the said conspiracy«?{_"vou::_ha§.'e...'defrau'dVtlife NiAC and tlie'reby"j;'yoVufi.; 'and.' 'accus'ec': 'No. 1 to accused No.3 the offence punishable under _secVt_io--n'* of IPC, within my _cogniiance._ V"'SiXt§113lv,' iiii "you Sri.P.Shivadasan, son of :'1°§iu'pran, while functioning as public '~-.,'ser'vant"p;fin the capacity mentioned supra di._she.n'estly by abusing your official position induced the NIAC to issue cheques in the it Vb"-..pname of different parties and then persuaded "tithe said persons to encash the cheques N &Qu_ pa-._._m..c»14\ » yourself and thereby you have committed the offence of criminal misconduct as per the section 13(1) (C1) of Prevention of Corruption"?

Act, 1988 which is punishable under sectioii--.:':"--._i"'-- 13(2) of Prevention of Corruption Act. .;. within my cognizance."

10. The prosecution has exarrrined..iI?Wistrgi._t'oii3'F».r__an.g1.i produced documents, marked asV"?':}xi';P.1 None of the witnesses wasi°rve_ixarnined. behalf of defence. The documents. as 8: were marked on behalf of defence'. it

11. At the;"oiLiﬁD'sef3'«_ iit to state that sanction toA§jros.cc'ute«.aLcuse_d 1 to 3 was accorded by the competent per Ex.P.99 to Ex.P.101. Accugsedgg No.2uVhad not raised objection regarding aV"compet'ei1cVe~rof sanctioning authority or the validity of A r-..san~ction'»order,VQ The learned trial Judge on appreciation of oral and V'-~.docun'ieV_ntary evidence has held that the prosecution has charges framed against accused 1 8: 2. The 1' rm. 4aA«.we>»~»---e/««~-

{Yaw IO prosecution has failed to prove charges against accused No.3. Thus, convicted accused 1 & 2 for offences punishable under sections 420, 465, 468 r/W 12_oirs§"'»:i>C and also for offences punishable under S€£)tiOI}$m"§3{'.?4_)i1;:}':W l3(1)(d) of the Prevention of Corruption n'

13. In View of abatement of iapperaijalgaiinst'accused; No.1, non--filing of appeal against ij"=.i_ci'gment~"of:acquittal. against accused No.3, we 'are' concerned with the sustainability or othe_rw_ise_«'iof_ Ajtu_§ign"r1ant ofucuonviction and imprisonment made :1'Vgains_-t._ "a§:~aiised No.2 for aforesttatéLi.of§'enc:i:§s; "

14. Sri l'Torny~.'V"'SebVasi':.ia'n_, learned senior counsel appearinglltfor »aclc1_1sie-ti taking me through charges wojzild siﬂarnit t§1a.t____the charges framed against accused '£\§o':?._ a17eVtciefes:_tive. The {earned senior counsei wouid that having regard to nature of tranlsactions, accused No.1 to 3 should not have been =,pu<t..aonvﬂlsingle trial for offences alleged to have been J\;€ Pvt,/x<=*ﬂ.¢\ committed by them in different transactions during the aforestated period.

15. The charges framed against accuse_c.i§V_:i""Nc.;'g..:

extracted above. The contents of charges~c~en.tain~.:na.tur:e of ailegations made against him a_ccu=sed. N-o..:2,.'and ~?1e_ iw:¢V!.:=.i made aware of the offencesafor whiizhihe Therefore, there is substance in__t'i2e first .subn1ission.

16. It is the case ofh'prose'cut'iC}«niithatiaccused Plus} to 3 committed a_icresta.ted"effences hycreating fictitious claims and "infia_t_ing :_'t;o'nz1pe_nsation even in case of genuine ca.sesi_~.jin_ furthéeitance.' of conspiracy entered into between' accused ii'»tA'u the case of prosecution, the acts:v'u.or;1rniitt.g;i'bjz thewaccused Nos}. to 3 to different 'V"trar:sac~t'ions was in furtherance of conspiracy entered to A3. Therefore, there is neither mis~ joi'1ri_derV~efﬁchiarges nor there was any need to conduct separatetriai in respect of each transaction. Above all, the offences alleged against accused are of similar nature.

17. Sri Tomy Sebastian, learned senior appearing for accused No.2 would submit case of prosecution even if accepted on 1 does not make out a case of evidence does not indicatenthat accused forgery of documents or hand in preparation of fictitious oi' genuine claims. In fact. accusegd-1§Iu..'_1V'b ﬁctitious claims and .in'fi;agted 1_th:_; ..'.gien.r.§{ii%.ie--., PW33 had sanctio'x*i"ec'. lififctitiogusl anti'~i--n":flated claims processed by accused ' senior counsel would further th_atA._P'Wf3'3 had sanctioned fictitious and inﬁated' clairns',--V.w_i_t_h.out veriﬁcation of documents. The »le"arnc.d*.seni'or counsel would submit that PW33 was initially' arrayed as accused No.1 in the first information reglisterfeddxon 15.11.1995. During investigation, till 336.411.1997, PW33 had been arrayed as accused No. 1. However, after change .3 Ty) ' .,_W_pq, x 14 and he was cross examined by the learned public prosecutor. PW33 in his cross examination by.__the learned public prosecutor has deposed:--

25)It is necessary in general to veriiiy :"

policy before signing disbursein1ef:~t: < voucher. If policy is not tubes...' 'in resp:ecxt,_l"'V of the claim made, disbursenienti£roi1€h<:r"

will not passed. "iV_I'f-cpclaiimaniy holder of policy, he er1t'i'€3eVd'it:o any claim.

2611 have seen V_t'he whi.c}ii_':is~ already rx1ar_i.te*<l._ '_- as ' claimant is There is nowpclicy in her 'sVai'd___fi1e_; The policy which is in the_'fil_ie._:'rela"tes to Gangadharan who was the oWi1_erno§f the said vehicle. hay?e"'p*erused the Ex.P.2 file there is sheet and survey report. if there ' uxovipolicy in the name of the claimant. ..i:f"E,i:here is no survey report and work Rfsheet in the file, such claims cannot passed. In Ex.P.2 priority passing of Ex.P.2(a). the other document available N. «/~(-ﬁr» ' are Claim Note cum advise and copy of"'--. the Insurance Policy of Gaxigadharanl:'f--._l'-- which is already marked as .;.

the basis of claim note cum aciviscu a'rid~ Insurance Policy, claim Ca'fl.ﬁD't be psasﬁselds

28) In file Ex.P.3 theyinsuranccypoiicvy is" in" " i' respect of the vehiiciei..V_is Imran Pasha. In also there. is 'no survey report"and_"iy'ork':__shee.t» the basis of claiiri _i.'not.e%' and IﬂSu1'aI'.'C¢ poli'c'y 'claim in the V"c~o':u1d noi be in» iﬁgeé claim cum advise falnyd'Insurance'i'=..Po.!cicy in the name of K.Vinodi;uinar.«ti-iere is No survey report, 'V _worVk~.sh'eet found in Ex.P.4, On the 3'.-._ba'.S'iS of'""the policy in the name of Vinodvkumar claim could not passed in it rta:r_z1e:'o'i" P.S.Hanuinantha Rae. . the file Ex.P.5. the policy found in is the name of M1-s.Kavitha Vinoci. On the basis of said policy no claim can be YU . "'/LG('5"~ 16 passed in the name of John Robert. In"? Ex.P.5. there is no work sheet or report.

3l)In file Ex.P.6 there no s;.iirife3i?_oris"

report and work sheetﬁ Pol.ipc§; ii-as name of D.K.Vishwanathl1__(3n_the b:a_siS"o'f " ll this policy no c§aini.sl1~a_ll be."paseecl'~.in7the"' name of K.Savithri.

32) In Ex.P.7 pthereifliis sheet.

surveyor's report-'_ {file policy holder' Mrs-.Ma_ha__mlii .. Ltd... On th4i:s..___po_lic--fv in the name of --Vii:n\:aLla R.'aj1iA"'i--sho:iildfnot have been l3.}_In_EX;.P.8A"v_ile._iéoes not contain work _ she'etVandp.suAr°vely*or's report. The policy is ii: the n"am_e__of Pane Chand. On the basis .th~is policy no claim shall have been .V::'p.asse'dVViin the name of Muniraju. 3__4}Ex.P.10 file there is no work sheet " _a3nd surveyors report. Insurance Policy is in the name of Bipin.M.Shaparia. On the 1\:.

17 basis of this policy no claim eeulé have been passeé in the name of K.C.Jose.

35)In Ex.P.12 file. there is no work it Policy is in the name of Robert is without work sheet no claim sh--aii» é pass in file Ex.P.12.

36)in Ex.P.15 file. the-r_.e isv"nVo"'wor!;s':f:eetV,. surveyors report. is in; .the.hnaViheV M/s.Srinivase Textiles-*.. Withoitt surveyofs report _ .aj1.'ld3.: sheet claim could not haVYV§:' ..'-sin ﬁle Ex.P._15;._ ~:3'*m.e.iiegvé'*:+ig:ic;i*~-Ex§P';2{:;{}, assay P.4(a), P.-5(a); mi), P.8[a3. P.10{a), 'r.,,_1'2n(a)',~V.p'. P.15[a) on the blind _ V beliefxof my staifii . 54) iviitédeparitrrrental enquiry was cenducted it _ me. In that enquiry a charge was .VtI'r'1"jere'T::VVthat I have committed official ..__'ri1i%t:onéuct. The said enquiry was '' .VV__Ar}isposed off. It is not true that I have been terminated from the services from service as the charge in the deeartmental {Q}, ~\.,&\«v~0{ ;

18 enquiry was proved. In the said enquiry, there was a ﬁnding against me for non:V>-_ ;_ mentioning of the sanctioned amount...in..'_"t-i'; words. I have preferred an appeai a*,g;a"ins.tVi the said finding. in th_e..sa;id e--nt'1'iiirc~_§j.if't ' was held that an amount;

be withheld frorn . _my 7..pe'nsion month. I retired tii'e.__se;j\}icei':..;o1i~ 31.01.}.998. _ Still p.¢ns§§:i~..i_;;; not settled. It t}12'AzitJA1 Manivannan claims at the request 'It is not tI'114_Ve§._._i'.() result" :?~;r 'tiepartmentai am dc-posing i"11~91'i:ler to help A1 to

3.' Frotxrnthe eiri_dence:.£:nd conduct of PW33, it is clear «_ th2§_~,g.'h¢ had san'ctioned the fictitious and inﬂated claims 'p;;*os:ess_edc'bjf__accused No.1 without there being any hon'estVi'1i.tj'eni;=iVon on his part and even than he had no reasons Atoihelieve the said claims were genuine.

" The evidence on record does not indicate that "acctiiseci No.2 was in any way responsihie for processing an TV. C' "*'5"""G{"' '

1. 9 the claims or had presented the same before PW33. Similarly, there is no evidence on record to hold that accused No.2 in fact had any hand in preparing'-.4th.c cheques or disbursing cheques to ?Ws. 1?' to _ and 27 to 31; or accused No.2 was the it cheques drawn in the names of aforestatizdi--,witrr;csls£és, Al-, .i this juncture, it is necessary' to refer to thereividencé; of PWIW R/I'hyagaraj who at the révievant was igvorking as cashier in M.G. M/s.l'AJew India Assurance Co. Ltd. 'l'h_asl.."'del1)osed the claims were sanctionedl,'=;h.é usedg to p"re;5are.__t1§e cheques, after the cheques the authorised signatories. PW33 use.:l_ to send to motor vehicle claims branch.» 1PW.33 ha's 'not? whispered a word about the ai:.>.voiveIi*ient..of accused No.2 in handling the cheques, were prepared or after they were signed. other hand. entire evidence of PW33, _V'relates" involvement of accused No.3 in Preparation V"--a11d>dp;rocessing of fictitious and inflated ciairns. The Ev. .

2 O authorised signatories of the Insurance Companyﬁwho had signed the alleged cheques were not examineéziiibeufore. the trial Court. The evidence on record does not it that the authorised signatories»'to~-the'_:

handed over cheques to accused iNo.:f+!_,iThe'~.g§%i.denc'e"'«anv. record does not indicate thait._Vc'i'~i.eque'S yvevr_e1i1_ai1_d'e'd~ over "

to accused No.1 and he in turniiih.an'ti_Ved o\fer.._ch_eE<;ues to accused No.2. Theretoireiii.oi:'e_irfef.ait3ﬁf_a§i3ti0n Of entire evidence on record, has failed to prove participated in preparation of had participated in preparation On the other hand, the evidenceiion that PW33 was the Divisijunal Marzagerof M/s.New India Assurance-Company °'Lin1i'te.dE'ai1dVi'h,e had responsibility to sanction claims. Vc.f:_E'W33 does not establish that PW33 had discharged duties honestly, yet fact remains claims shad beenaccepted and cheques were drawn in the names ffk}. La?» '~»~4JQc~ 21 of PWS. 17 to 19. 22 to 25 and 2'? to 31. with which we are concerned in the present appeal.

20. The prosecution has relied on the evid_enee'o_f 17 to 19. 22 to 25 and 27 to 31:ito "p'ro.v'e_ thait_"eC'C_Esedi". No.2 had handed over cheques dra_vsr'nV_ in theAnatne's"of"* aforestated witnesses to thej'V"i~fGrestet3dV_ it-'and had made a false repi"es_entait'iohni.:iftoj"thern'ttvhatigamount mentioned in the saidéiicheqiuvefs to him as commission Company Limited. In" of income tax, accused"emanagied"to...obtain cheques in the namesivlofhito 25 and 27 to 31. The aforestateuid«--_nfit,ne's.seis_encashed and returned the cash to accu{sedu'No.2..' FWs_.____A1.7 to 19, 22 to 25 and 27 to 31, ~h:onestly'«be.l:ieving representation made by accused No.2", iiencashediitthegcheques, which were admittedly drawn in their narnesfand returned cash to accused No.2. 'TV. 5*" ' 22, The prosecution has produced Ex.P.39 to Ex....l'.4l to prove that the witnesses namely Mani P.S.Suresh {PW29) and P.S.Hanumath Rao executed conﬁrmation letters regardingjlencashtrient of it cheques by them, return of the 1'cheq:ie_ accused No.2, which accus»ed"--~.}.So.2A'vhad. to 2 L' them as commission paid___to=,_accused~No.2_i? by the Insurance Company.

It is s:ur}3.ri'_'s.ing:;_ to these receipts/ conﬁrnz'ati9n"j;letltiers,"-do.lnofbcar the dates; they are allegeddto:harel:V:';3ee»n"VlVpre'p_ared and submitted by the witnessesxltéol the .In-stirairice Company. The receipts are alsoﬁgaiiyeged to"--rha_\_(e. been counter signed by accused documents are in cyclostyled form and hahv-er' corr2.eV';"ilnto existence simultaneously. The pro"secirtio'n.V has no case that PW28. rwzs and PW32 had gacthered together to execute Ex.P39 to P4} in favour of "'the"lnsurance Company at a stretch. It is relevant to N i .,,taeai i jiiipersoijfis, preferably his relatives and friends, to J' N ./ ~..,..G7\«"~'"

notice that PW28. PW29 and PW3]. had eneashed the cheques on different dates and they had no occasiojtior necessity to execute these documents in favc:s:r..'ef'__'t'li'cV"

insurance company. There was no need fer a_ccu.sed'*Nc.f2"

to countersign these documents. g'.1'her'eiE3re/. theﬁicfence of accused No.2 that these doTcuments"were b;xf'oﬁ.gh't existence by the Investigating V. "':Ot"iice.r investigaticr": at a point or" tithe' No.2 was in the custody of investiigating. probable and it appears:that':-the§.ih%e_§ttigatiifrgxbfifiicver had brought these documenvtrse as::i_nc:'iminatiz1g evidence against1._:accu_sed._-No.33,

21. Frorndthei e.\rVid.en_c'e.._nof'. PW29-P.S.Suresh. we find that he" is the'-»brother'~-inslaw of accused No.2. in other cords.' jteungeriiisiister of accused No.2 namely PW24- 1€=ara'la'x " in marriage to 1"-'W29. PW29 has i de1§c.~._s_edv_;.,- the year 1994, accused No.2 had met andsirequested him to give the names cf reliable gzhom (0%:

cheques could be entrusted for enoashment. Therefore; PW29 had given the account particulars of his parents and friends; accused No.2 gave seven cheques who got them encashed through accounts of iilis parieizts» and joint account of himself and_"hlis'<w;if'e and accounts of Hanumantha Rao, John G.V.Sudhindra (PW18). Aftevt'-.:Vei*:.cashn:Vent-V_of vV':cVh'e'ques through the accounts of"those-'*1ietson.s., heilhandeid over entire amount to aecuse'd'l'.Jo;'2.?,v identified the cheque as per ExgP.3(e).i"

DUi'il"1g~. Vcrossieixarninatlio'n,.... *'l'W29 has admitted execution of 'which has been referred to in the discussion' .m'ad'e.._".supra. There was no further crossaexaniinatilonaof__«PW29 by the learned counsel for A"g_accus_e<l._:Theqevidence of PW29 that accused No.2 had give the names of some reliable *I3ersoi1s.'i:liielterabiy his friends and relatives has xfem..a.i4ned"uncontroverted, so also evidence of PW29 that _';_'a¢.cﬁse'd No.2 had entrusted seven cheques to him. which I\>, ««««« "P/""'/'" Ob"

he were got encashed through his parents, his wife "and PW18 and PW19 returned cash to accused Nov.?{'~ha~s remained uncontroverted. The defence has not . to PW29 that he had any reasons__to_ imp_iicate'_'~a'ccu'sed.._dd No.2.

22. PWl7~K.C.Jose has dep.oased;

No.2: that accused No."2..had,a;5p:;oach.ed PW'1"i'A to encash a cheque for Rs.8.000/~' 'PW17 encashed the cheque accused No.2.

Though notmheen controverted by thg..vdefe.n'c.5e., :hf:,3ias by any documentary evidence." not produced the cheque, which was«ent,rusted_t"o.:i?W17 by accused No.2. 23;" a.PW18'--G.V.Sudheendra has deposed;~ that he knew I accused»-.._&No.'2;"_}.he had encashed a cheque for sum of and handed over the amount to PW29--

Sureshfwho is the bI'0thf3I'-iI1"l8.VV of accused No.2 has notdtﬂéoeen controverted. The evidence of PW18 finds 26 corroboration from the contents of Ex.P.28. There is nothing on record to show that PW18 had any give false evidence against accused No.2. PW18 has deposed that he :hadi'rcce'ive:d.iahreceiptn"'. from accused No.2, through ,PW2Si7an'd_ PW1.8;' the said receipt to C.B.I. In i have referred to the' ~..c'onte"n'tsVr.:'joi'i"sAr_eceipit'."' irhough evidence of PW18 as it of receipt by accused is part of his evidence inf cheque and payment of cash"tioi'PW'?.9 i1ot--.sufi'e'r~fr'orn any discrepancy.

24. PWl..9¥John.._ deposed; that during the month of Noveniberiii-1£§94. PW29 had given a cheque iddrawn in the naniemoif PW19 and had requested PW19 to iAei11_cash::V'the usarne through his bank account and return cas~i7..:i'¥When PWIQ had enquired PW29 regarding natureof transaction, PW29 informed PW19 that it was i."ii_'Ac.orri:inission payabie to accused No.2 {his brother-in- 5U . \":f4€41'./x '.27 law). PW19 got the cheque encashed through his bank account and paid the amount to PW29. PW1.9._:'i2_a$.v identiﬁed the cheque given to him as per '7' V PW19 has deposed that he :éizaisd:'1c-.t'--«the< insurer of van bearing No.CAX--8164i';.__h:e.V_had not"elaziu?._edV:V"

any amount from Insurance Ciovriipanyvhiié . vehicle. PW19 has producedof his passbook. PW19 has by the learned counsel evidence of PW19 has evidence of PW19 ﬁnds 'ihe.vcontents of passbook, markedias i

25. PW2fZ+$ﬁ1t.I{.Vix:fia1a_"_."Raju is the maternal niece of

--~__accusiedv No.2. has deposed:-- that accused No.2 is th:e'--»son.Vofheematernal aunt; she knew accused No.2 sineet.'hveri'i_"ehii;dhood; In the year 1994, accused No.2

--V came' to and requested her to encash a cheque.

7.w'hi::_h was drawn in her name. When she questioned as _i f'oV{v'£'1:y accused No.2 should not encash the said cheque, ¢\;_ xW..ﬁ>\..~«--<'1-A 28 accused No.2 informed her that he had income tax problems and accused No.2 represented to _he_r.._t~he cheque amount as commission payable to Insurance Company. Therefore. JPAW22 obligejdbdaccuseﬁ No.2 and encashed the same through;-heir Union Bank of india, Richmond Touzen 'Branciiutandd 'handed s over the cash to accused 1'€o.vu2':..:P'Wx22 idenitiified the cheque as Ex.P.7(c) an_d'~xe:--roxi-- .cdo'py*._to'f.Aher sauings bank account as Ex_.P.3I,;._ encashment of cheque. H ,vDuri_An*g.g;.ros:s.¢e:zarn_i11ation'; it has been suggested to PW22 that VVEX.1§'d;$2rac1tAr1o%£/Iedgment was forcibly taken by Lwhe"n._ac'e.u'seu. was in custody of CB1. ' from this. there is no further cross examination. by the learned counsel for accused No.2. f\> .

2 9

26. PW23--Savithri is the mother of PW'29--Suresh. PW33 has deposed; a cheque was brought by that said cheque was given by accused~'..'::1\Ic;_:,?«LJ,:V\: "

encashment. At that time.

State Bank of India, HAL Brench.;bA:'.V$hA_eA. encashed through her accouht..:VLaia:_d to accused No.2. through" has deposed about ackno\y1'edg-xtieﬁitdiiv by accused No.2.

During PW23 has denied suggestion ac;khcsy1ee'dgmeut--Ex.13.33 was obtained when accused No.2' custody of CB}.

27. In the""'diVScuS--siovnVdiiiade supra, I have referred to "'~,..g_he":cbn.tent:§ of Hacimowledgments and disbelieved the yet the evidence of PW23 regarding erxtr1ist111_er1tI__o':i" cheque drawn in her name, encashment 'roof cheque by her and return of cash to accused No.2 her son {PW29) has remained uncontroverted. ﬂy ' .&. ~~-<-199» 30

28. PW2-4~Sarala is the younger sister ef accused and wife of PW29. PW24 has deposed: in the accused No.2 came to her and requested her cheque through her account and was issued to him for payment by insurance cornilany. PW24 has"vs4id:éP0se.d'----atVtiﬁee time there was joint baiiig.«acca:)'ti'nt.:iiénujthe narnie PW24 and her husband {PW29}ii she handed over the arnount«*_her to pay the said amount' has identiﬁed the xerox copy '~oifﬁj'o'i:f:.tv":vaccount, marked as Ex.P.34.i7._PWi2¢1v cress--examined by the iearned coin-.s.3;=:i,r§i No.2.

is .in'ene_H____ether than the direct sister of V':_Vaccu»sed.,Ne,2.,:V«If at all PW24 had any reasons to give false evide--nce;'s'i1e"y;Wouid have given evidence against the _;)rosei3ut'iVon','HVshe would not have depesed against her 2 vrgfwnrbérother. In the circumstances. there are no reasons .i '.to.dis'believe the evidence of PW24. NJA E {\}. , 31

29. PW25--'I'.N.Prakashan is the father of PW29. PW25 has deposed'. in the year 1994, accused No4..2i_V"-had approached PW25 and requested him cheque, which was drawn in thehiriaine of"

has deposed; cheque amount :5.' cheque was encashed througih'«--his joint accou'nt.:and cash was returned to accused"xNo.2. '1'h_ei'evici§ence of PW25 has not been cori«trs?Jve'rtej'u(.i'. "

There arevrm.reasorrsito."di.sbe1i'eV:ethe evidence of PW25, in relationship between accused"No,V2gandf:.3PW2'f)';._Accused No.2 has no case that PW25 had any Vt"o,§'epose against him.

30. PW273Ii,VL;Ftavi."-Keierthi was acquainted with PW24 and V.}E'W29iSureshV."""PW27 has deposed: he knew accused during the year 1995. accused No.2 approached him and requested him to encash a cheque dravvn.eV__i1n the name of PW27. representing that cheque was the commission payable to accused No.2. N. X... "V" {'€»{."~.

PW27 encashed the cheque through his account in State Bank of India, Ulsoor Branch, Bangalore. PW27 paid_:"the_ cash to PW24. PW27' has identiﬁed the Ex.P.9{b). _ During cross~examinatic_n, it PW27 that transaction of saiti tcvhieeque pciaa¢:é"~§§'twéen PW27 and PW24 and VaccuseVd""N.a:;2.Vhhad n¢'t-..givV§en any cheque to PW2'? and acécnsedt received any amount fromf, of cheque marked as was drawn in the name ' Assurance Company that he knew accused No.2 throngh hie aister.:_".{PW24~Sarala) that cheque was bro_u§ht__T't§Vv PW'2--'?._a__nc?. PW27 encashed the cheque and 'returned'~.the"*~c_ash to accused No.2 through PW24 does any discrepancy.

V'-~31. "i'.\J__V~28-Mani has deposed; during the year 1994. '~._"3&(1_(:'.lai;"5ed No.2 had given him a cheque for Rs.-4,000/-- and f §\?. \~4-('Vt '~"*"'*Q"--"~"

the cash to accused No.2. PW30 has deposed savings bank account extract as per Ex.P.42 related to his account. PW30 has not been cross--exaruined.

33. PW31~Chandra Kumar.C is the brother¥ii_n--iaiazvVi'of" H accused No.2. In other words, thefie"lder« sister jofb._P\:V3:3. was given in marriage to accused deposed; that accused No.2 to.hith-._ai1dx'»giave"ia cheque. stating that the am'o'u--n_t-- 'mentioned the cheque was the comniiissi'ons..V.lpayabvic,ito him from Insurance Conipany to get it encashedg""The;"j$aid*;5::--he'ciuei ~§~.;a-sV.Vso} Rs.1'7,000/--. PW23 encashedjthe "account held by him in Dena Banlc,i4--.._V;I.C.EVi{oati._bi?-ranch. Bangalore. PW31 has ~'v.depo_s€=.d t_hat aftei*~eVn_cashment, he handed over the cash hito ;a'ccused.I\'.o}'2; the said account was held jointly by After some time, accused No.2 again

-gapprouached PW31 with a cheque. which was drawn in the i"g.natz1Ve..'_ofV{iIife of PW31 and requested him. to encash and the contents of cheque. PW31 encashed the f\; _ P'\«="'~ '-"'"""£é° 3 6 accused No.2. They did not have any grouse against accused No.2. From the evidence of above witnes;:se's.,_' it is manifest that they were shown as rec--i;t__)ient'sf'*-. cheques. They had not made any__c1aims nor'*--thejf~:were.r_it entitled to receive any amount:'A,fro'ru..:'A« Assurance Company Limited' e'm_pIo32reri of Vac:¢"ti:;g;ci.V No A

35. When accused undeerrisection 313 Cr.P.C., with re't'er.e'nce of these witnesses, a¢?§"'\1:~,:/13' "f:ov"have entrusted the chequeisil"aindi-.__ Wfrom aforestated witnesses} denied to have acknoufiedged "accused No.2 has come out with a specific vie-rsi'.:§n'.tuhat accused No.3 had requested ac=:§iise:d'i*§o.2 tAo"giy_e.»the names of some reliable persons ' to "drawV'chec'fues in their names, therefore accused No.2 hadgixrenhtheviinames of these witnesses. Accused No.3 had managed to have the cheques drawn in the names of 3' Aafor«estated witnesses. As demanded by accused No.3, Ahtacicused No.2 got the cheques encashed through I3 7 aforestated witnesses and returned the amount to accused No.3.

36. The learned senior counsel appearing for No.2 would submit that in the absence "

evidence by the prosecution. the.re~vare no ;'eas'ons-_tp disbelieve the version of accused'1.«No_'_;'2'iv aforestated cheques were purs"uant_ fi._ctivt.io°us claims prepared at the insta21c_e_ﬂo~f_accused"'No.lppviand 3. The non-examination of.:auAthor?ised'signatories to the cheques and absence of'proof"re»ga'r.d_ing::"handing over cheques ~t'o'"acci:;sed':?N'c,2'~or accused No.2 had any access to collectgthe cheq:u'e.s'i'fr.orn"'motor vehicle division; the version of accused-__No.2r.>'that he was pressurised by

-'v.accus_5'e3srl who'«w_as«'not only an Officer of M/s. New Company Limited but also union leader of company appears to be probable.

*'i'«here4fore";.2in' 'view of acquittal of accused No.3 and also V' "view of sporadic evidence adduced against accused is not possible to hold that accgsed No.2 is N. x 0»--~~<L"»~ guilty of offences punishable under sections 420, 465 8:

468 r/W 120B IPC and also an offence punishable under sections 13(2) r/w 13(1)(d} of the Preventiont-..y_o£_ Corruption Act. I 988.

37. Sri C.H.Jadhav, learned counsei for respondent/C.B.I. would submit that -No.2"

an employee of M/s.New India As's.u'rance'v:i'C;urr;panyVi Limited. Accused No.2 was aware""of PWs.1"? 19;} 22 to 25 and 27 to 31 had not--r_ii.:*1de'i_claiti1's.__with._the Insurance Company, they were notA.e.n'ti--tled to 'r"eceiire'i"any amount from the"iI"nsuurancef-:"CcmVpany:'""'i:i the circumstances, accused '2'>Io.'2 havingycioyniey 'into possession of cheques drawn by 'Neyv__ IAI:_di'a..i~7Assuranee Company Limited

--=.{pernpV_i'oi§rer_ii'ofvacctised___N0.2) in the names of aforcstated v".wit:n'esses_,"wh.o"'va.dmittedly were not entitled to receive any "arnouri"t-. Feither by way of commission or 'compensation from the Insurance Company, had availed the 'services of aforestated witnesses to encash the and appropriate the same, therefore, even in the (\sﬁ '*"""""'a""

3 9 absence of evidence relating to participation of accused No.2 in the preparation of fictitious claims and ra:1u..:fe.._o£ prosecution to prove that accused No.2 had _ to motor vehicle claims to col1ect__the_chetiuiesiﬂjtihie. fact,' remains accused No.2 being an :'emp'1o.yi*eeis».of iii!/si,:N_e€t<1Ve_Ai India Assurance Company official position, which is evidence of aforestated witnesses. made false representation to. aforestateid the amount mentioned 'in to accused No.2 as company and he has managed __t.oiche'tiues _' drawn in the names of aforestatedi"w1tne_sses,i '~ ..

;'Th,e acicused~'No;2 'Was an official of the insurance iV"corn;)anuv. 'When heiiihad come into possession of cheques Hdrawn "thee_}.names of aforestated witnesses, who adz:riitteodl):ri"j'..-were not genuine recipients, the conduct Wconsistveiit with his innocence would have been to return V"ii.AAth_eiircheques to the insurance company and bring N pwcaa 40 to the notice of the insurance company about the fictitious nature of transaction. On the other har1d..:"wie.V find that accused No.2 by misusing official . made false representation to afo_restated_--'ivitniesses"to encash the cheques through themf:

38. These acts of accused No';'2rw.ould c--lear1.jf_=at'tractiian offence under section. "13_(1}(d)i('ii'i}.:'iottthe Prevention of Corruption Act, 1988 whichAreavds:'Vas.«unr}.er;f "1;3.{i}f.d"_i[iii){" "oriﬁce as a pub1icw'se::vaI1tf--. 'obtains --forQar1y person any valuable i =or7f ..pecunf.iary advantage without 1:E;ul31ic».iuntere_sit§' or"

39. In the tvdiscuhsisionixtnaide supra, I have held that pros-sécutiion hasfailed. to prove that accused No.2 was a party to.' t;1ie_ conspiracy in creation and clearance iict'i.1;iou'sx'c.1_aiéns'. There is no evidence on record to hold that"'-accused No.2 had access to motor vehicle division itoptconie into possession of alleged cheques. However, frotaiithe evidence of PWs.17 to 3.9, 22 to 25 and 27 to R). 9"' """'"'c£ A"

31. it is proved that accused No.2 had entrusted cheques drawn in the names of aforestated witnesses"

requested them to encash the same and pay by making a false representation that the in the cheques reflected commissilenl the Insurance Company. Thepcontent-ion._.of aec.;a.§¢d'* V that he was pressurised by names of reliable persons '¢'1'ai'his and accused No.2 has receiiredl accused No.3. drawn in witnesses is apparently was a Data Entry Operator in Assurance Company Limited and he had requested'thelaforestated witnesses that he was entitled to receive the cheque amount in the form of cornr'i1.iss'i'onlll"from M/s.New India Assurance Company l1Limited.v.::l1f_vthe*conduct of accused No.2 was consistent with-..the_.cn_nfduct of an innocent person. he would not have entrtisted the cheques to his wife. brother~in~law. l'siAs'te_r,u,'sister--in--law and other close relatives. instead he ,§ g',\'_»\/..'('_""/LIA)! would have returned the cheques to his employer and highlighted his employer as to how such cheque--sV"'a..Ii¢"g:ir:té'.,A' drawn in the names of persons, who were not . receive any amount from the Insurance'Cornijiganygieiither in the form of commission or vehicle damages. On the other__har1d, 'froth; oft accused No.2, it is clear th£f~st..i$aA'c.cus_ed fully aware that the cheque"sxitweri~e. the names of aforestated witnesses for they were not genuine misused his official iiiirelhresentation to the aforesta.ted_ _'-arnount mentioned in the chequesiiwais as commission by the Insurance Comgany anclw he had managed to get the i'VQ.;1e§i:eg,3~A"'idr§w&1/1 iniﬁé names of aforestated witnesses ioriiy.VVt'o,::'a.f§rolcl_incorne tax problems. Therefore. acts cornniittedliliyillaccused No.2 would squarely attract an

-<.__V'offence punishable under section 13(}.)(d)(iii} of the Act. No.2 by abusing his official position has .»._v_,[,'/4. '\,= *-.CTi49\ )«\_>.

43 obtained for himself pecuniary advantage by receiving the contents of cheques drawn in the nan:escT"o.t' aforestated witnesses, after getting the same through them. The learned trial Judge appreciation of evidence and nature of transaction and _ lbesitlo_n§(i1:g'~ attention regarding creation availability of evidence in.'proef""o'tilc_:circngrnstanees;ﬂwhich would have enabled 'prepare the fictitious claims of offences punishabie u1idlle_r_ 1'/W 12013 IPC. The learned l1.as'~p_1-ocleeded on the assumption that accused , icioxrinmitted forgery with an intention _to use the': forged document for the purpose of cheatiingfinllllfurtherance of conspiracy entered into léetiwee n in-.4None~oif'..'the prosecution witnesses namely PW} to

-'««___lI-'W37 havsvdeposeci that accused No.2 had forged any of lthAer_do,cuInents amongst Ex.P1 to Ex.P98 (documents 44 relied upon by the prosecution) with an intention to use the same for the purpose of cheating.

PW14 -- M.P.Menon, who at the relevantit:-imée".a§a--s:'7----.d~ working as Assistant Administratisveé insurance company has deposed; tziaéatihhefvhdaddpnot across any part played by accusje'd_VNo.'2 the' jfhe learned public prosecutor hadp_..;i}'§geSted.'to: that accused No.2 was tire computer at the request of accused that data was being fed of documents.

The iearnad reiying on the evidence of__ PWBO has drawn an inferencedagainsdtqactcused,p:'1'*Io.2 that accused No.2 had f0rgeq:.«..t_l1e docuxnentsw though the evidence of 1-V.V.dp'rose'cutEion{both "Egg; and documentary) does not 'VindicateithatV'=.a'¢:cused No.2 had forged any of the docutnentsdrelied upon by the prosecution. Therefore, I 1"-'«.__Vh.o1d co'11viction of accused" No.2 for offences punishabke ;r\'::. 9"'"/' Jéj The excess of fine if any deposited by accused No.2 shall be refunded to him on his surrender to unrierj go sentence of imprisonment imposed by the y;;:i;~\.1'V"c;m'r:. and conﬁrmed by this Court for an offence u'n;:"£erjV's.eiétiion4ii V' 13[1)(d)(iii) of the Act, punishable' ﬁndel; ;;ec_::i§'n'._1e(2i;V of the Prevention of Corruption ii Sudge

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