Karnataka High Court
Shri. K.S. Vijaya Kumar vs State By Inspector Of Police on 6 February, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:5520
CRL.A No. 1392 of 2012
C/W CRL.A No. 17 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 1392 OF 2012
C/W
CRIMINAL APPEAL NO. 17 OF 2013
IN CRL.A No. 1392/2012
BETWEEN:
SHRI. K.S. VIJAYA KUMAR
S/O. K. SATYANARAYANA RAO,
PROPRIETOR OF M/S. SHREE RAYAR IMPEX,
R/O. NO. 967, II MAIN, 4TH BLOCK,
RAJAJINAGAR,
BANGALORE 560 010.
...APPELLANT
(BY SRI. MOHAMMED MUJASSIM, ADVOCATE FOR
SRI. R. VIDYASAGAR, ADVOCATE)
Digitally
signed by
MALATESH AND:
KC
Location: STATE BY INSPECTOR OF POLICE,
HIGH
COURT OF CBI, REPRESENTED BY
KARNATAKA STANDING COUNSEL FOR CBI IN THE
HON'BLE HIGH COURT OF KARNATAKA,
BANGALORE 560 001.
...RESPONDENT
(BY SRI. P. PRASANNA KUMAR, ADVOCATE)
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NC: 2025:KHC:5520
CRL.A No. 1392 of 2012
C/W CRL.A No. 17 of 2013
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE OF IMPRISONMENT DATED 21.11.2012 PASSED BY
THE XLVII ADDL. C.C. & S.J. & SPL. JUDGE FOR CBI CASES,
BANGALORE IN SPL.C.C.NO.184/2000 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S
120(B),420,468 AND 471 OF IPC AND U/SEC. 13(1)(d) P/U/S.
13(2) OF PREVENTION OF CORRUPTION ACT..
IN CRL.A NO. 17/2013
BETWEEN:
SHRI. G. SUBRAMANYAM,
AGED ABOUT 61 YEARS,
S/O. G. SUBBARAMAIAH,
RETD. OFFICER,
ANDHRA BANK, N.R. ROAD BRANCH,
BANGALORE,
R/O. FLAT NO.403, AISHWARYA GARDENS,
SBI COLONY,
J.P. NAGAR, I PHASE,
BANGALORE 560 078
...APPELLANT
(BY SRI. R. NAGENDRA NAIK, ADVOCATE)
AND:
STATE BY
CENTRAL BUREAU OF INVESTIGATION,
GANGANAGAR,
BANGALORE.
...RESPONDENT
(BY SRI. P. PRASANNA KUMAR, ADVOCATE)
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NC: 2025:KHC:5520
CRL.A No. 1392 of 2012
C/W CRL.A No. 17 of 2013
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE OF IMPRISONMENT DATED
21.11.2012 PASSED BY THE XLVII ADDL. C.C. & S.J. & SPL.
JUDGE FOR CBI CASES, BANGALORE IN
SPL.C.C.NO.184/2000 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S
120(B),420,468 AND 471 OF IPC AND U/SEC. 13(1)(d)
P/U/S. 13(2) OF PREVENTION OF CORRUPTION ACT.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Appellants are the accused Nos.1 and 2 who suffered an order of conviction in Special (Corruption) Case No. 184/2000 by a judgment dated 21st day of November, 2012 on the file of XLVII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore. -4-
NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013
2. An order of sentence passed against the appellants reads as under:-
"Acting U/s.235(2) of Cr.P.C. accused Nos.1 and 2 are hereby convicted for the offence punishable under section 120(B) I.P.C. and sentenced to undergo S.I. for a period of two years each and A-1 has to pay fine of Rs.20,000/- (Rupees Twenty thousand) and A-2 has to pay fine of Rs.50,000/- (Rupees Fifty thousand) IDSI for one year each.
Further, accused Nos.1 and 2 are hereby convicted for the offence punishable under section 420 I.P.C. and sentenced to undergo S.I. for a period of two years each and A-1 has to pay fine of Rs.20,000/- (Rupees Twenty thousand) and A-2 has to pay fine of Rs.50,000/- (Rupees Fifty thousand), IDSI for one year each.
Further, accused Nos.1 and 2 are hereby convicted for the offence punishable under section 468 I.P.C. and sentenced to undergo S.I. for a period of two years each and A-1 has to pay fine of Rs.20,000/- (Rupees Twenty thousand) and A-2 has to pay fine of Rs.50,000/- (Rupees Fifty thousand), IDSI for one year each.
Further, accused Nos.1 and 2 are hereby convicted for the offence punishable under section 471 I.P.C. and sentenced to undergo S.I. for a period of two years each and A-1 has to pay fine of Rs.20,000/- (Rupees Twenty thousand) and A-2 has to pay fine of Rs.50,000/- (Rupees Fifty thousand), IDSI for one year each.-5-
NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 Further, accused Nos.1 is hereby convicted for the offence under section U/sec.13(1)(d) punishable U/s.13(2) of Prevention of Corruption Act and sentenced to undergo S.I. for a period of one year and to pay fine of Rs.20,000/- (Rupees Twenty thousand) IDSI for six months.
Accused Nos.1 and 2 shall pay total fine of Rs.1-lakh and Rs.2-lakh, respectively.
All the sentences of imprisonment shall run concurrently.
The detention period undergone by the accused Nos.1 and 2, if any, during the investigation and trial is given set off U/s.428 of Cr.P.C."
3. Facts in brief which led to convicting the appellants and sentencing them in a nutshell are as under:
Sri.S.V. Malleswara Shastry, General Manager, Andhra Bank, Head office-Hyderabad, lodged a complaint with CBI which was registered in R.C.09(A)/98 against G.S. Subramanyam(A1), M Ramesh Reddy(A2), K.S. Vijayakumar (A3). K.S.VijayaKumar being the proprietor of M/s.Shree Rayar Impex obtained financial assistance from Andhra Bank of which accused No.1 was the Manager. Offences alleged against the accused persons in -6- NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 the complaint are under Section 120(B) r/w Section 420, 468, 471 of IPC and insofar as accused Nos.1 and 2 are concerned in addition to above, under Section 13(1)(d) r/w. Section 13(2) of Prevention of Corruption Act. 1988.
4. Based on the said complaint, CBI conducted a detailed investigation and filed the charge-sheet dropping Sri Ramesh Reddy, who was an Officer of Foreign Exchange Department, Andhra Bank.
5. On receipt of the charge sheet, the learned Special Judge took cognizance. Charge-sheet materials would reveal that accused No.1 while discharging his function as the Chief Manager, Andhra Bank, N.R. Road Branch, Bangalore, during the period of 1995-96 entered into criminal conspiracy with accused No.2 being the Proprietor of M/s. Shree Rayar Impex, Bangalore and they cheated the Andhra Bank, N.R.Road Branch, in allowing accused No.2 to have the credit facilities sanctioned by accused No.1 to the tune of Rs. 25 lakhs as against the fake export bills submitted by accused No.2. -7-
NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013
6. It is also found from the charge sheet materials that in furtherance to the criminal conspiracy, a current account bearing No.5564 was opened in Andhra Bank, N.R.Road Branch, Bangalore on 28.09.1995 and on the very same day, accused No.2 submitted fake and forged export bill to the tune of $8,96,000/- in the name of Marina International, Bangladesh. The export bill consisted of several discrepancies but despite the same, the accused No.1 based on the said export bill granted financial assistance to Accused No.2.
7. Subsequently, three more fake export bills were submitted on 20.10.1995 favouring various importers in Bangladesh. Yet another fake bill was submitted on 24.10.1995. Without verifying the veracity of those exports bills, accused No.1 went on sanctioning the facility to accused No.2.
8. Per se, those bills were fake and forged as there were no actual exports that have taken place under the said export bills.
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NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013
9. Investigation revealed that the bills were fake in nature, in as much as no goods were exported either from the Ports or through the Air, under the export bills and therefore, it was found that forged exports bills are processed by accused No.1, to pass away the public funds resulting in huge loss to the Bank and corresponding gain to accused Nos.1 and 2.
10. On receipt of the charge sheet, learned Special Judge took cognizance of the aforesaid offences and secured the presence of accused Nos.1 and 2 and framed charge after in compliance of Section 207 of Cr.P.C. Accused persons pleaded not guilty and therefore, trial was held.
11. In order to bring home the guilt of accused persons, 20 witnesses were examined on behalf of the prosecution as PWs.1 to 20 and as many as 98 documentary evidences were placed on record, which were exhibited and marked as Exs.P.1 to P98 comprising of -9- NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 export bills and corresponding banking challans, invoices, credit and debit slips.
12. On conclusion of recording of evidence, accused statement as is contemplated under section 313 Cr.P.C. was recorded.
13. Both the accused persons denied the incriminating circumstances and did not choose to place any defence evidence on record. However, during the cross-examination of PWs.3, 5, 19, few documents were confronted to those witnesses which were admitted by the prosecution witnesses and therefore, they were marked as Exs.D1 to D8.
14. Thereafter, learned trial Judge heard the parties in detail and based on the oral and documentary evidence placed on record, convicted the appellants and sentenced as referred to Supra.
15. Being aggrieved by the same, the appellants are before this Court.
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16. Sri.Nagendra Nayak, learned counsel representing accused No.1, Sri.Vidyasagar, learned counsel representing accused No.2-borrower have reiterated the grounds urged in the appeal memorandum and contended that the learned trial Judge has not appreciated the material evidence on record properly and has passed the impugned judgment based on surmises and conjectures resulting in grave injustice and sought for allowing the appeals.
17. They also contend that the material on record would go to show that the documents furnished by accused No. 2 for processing the credit facility, based on which credit facilities was sanctioned by accused No.1 were in order and merely non-production of supporting documents for the export bills itself, would not result in fraud and thus, sought for allowing the appeal.
18. Alternatively, learned counsel for accused No.1 contended that in the event, this Court upholds the order of conviction, for want of necessary evidence with regard
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NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 to the demand and acceptance of illegal gratification, offence under section 13(1)(d) r/w. Section 13(2) of the Prevention of Corruption Act may be set-aside and in which event, accused No.1 would not claim any retirement and other consequential benefits from the Bank and sought for setting aside the imprisonment period by enhancing the fine amount reasonably.
19. Learned counsel for 2nd accused Sri Vidyasagar would also contend that if the imprisonment period is set aside in the impugned judgment by upholding the order of conviction, the accused No.2 is prepared to pay enhanced fine amount reasonably.
20. Per contra, Sri P.Prasanna Kumar, learned counsel representing the CBI opposes the appeal grounds vehemently.
21. He would further contend that the very fact that no exports have taken place and corresponding documents have been placed by accused No.2, the export bills referred to supra are all fake and forged export bills and
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NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 therefore, lending the public funds through the Bank by accused No.1 to the account of accused No.2 on the basis of fake export bill would contain all necessary ingredients to attract the aforesaid offences including the offence under Section 13(1)(d) r/w. Section 13(2) of the Prevention of Corruption Act and hence expecting a positive evidence for said offence is impermissible and sought for dismissal of the appeal in toto.
22. He would further contend that showing any lenience to the appellants would result in encouraging similarly placed appellants of the crime and therefore, the appeal needs to be dismissed in toto.
23. Having heard the parties in detail, this Court perused the material on record meticulously. On such perusal of the material on record, following points would arise for consideration:-
(i) Whether the material evidence placed on record would be sufficient to maintain the conviction of the appellants for the offences
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NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 punishable under Section-120(B), r/w Sections-420, 468 and 471 IPC and under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act insofar as accused Nos.1 and 2 are concerned?
(ii) Whether the appellants make out a case of illegality, infirmity or perversity in the impugned judgment?
(iii) Whether the sentence needs modification?
(iv) What order?
24. Regarding points No.1 and 2:
In the case on hand, accused No.1 being the public servant, who was working as a Chief Manager, Andhra Bank, N.R. Road branch, Bengaluru in the year 1995-96 is not in dispute. Likewise, accused No.2 opening a current account bearing No. 5564 in Andhra Bank, N.R.Road Branch is established by placing necessary evidence on record.
25. It is pertinent to note that on the very day of opening the current account, accused No.2 has submitted
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NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 a export bill to the tune of $8,96,000/- in the name of Marina International Bangladesh. Likewise, submitting three more fake bills on 20.10.1995 and one more fake export bill on 24.10.1995 which were all accepted and necessary funds have been transferred to the account of accused No.2 from Andhra Bank, N.R. Road Branch is established by placing necessary material evidence on record.
26. However, when the outstanding amounts in the current account were not repaid, there arose a doubt to higher authorities of Bank. Inspection has been conducted in Andhra Bank and while so conducting investigation, Ramesh Reddy was the officer of Foreign Exchange Department in Andhra Bank was also enquired.
27. When there was no satisfactory material found, the matter was reported to the Head Office. It is thereafter, the then General Manager, Sri S.V.Malleswara Shastry has filed a complaint with CBI against the
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NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 appellants and Ramesh Reddy who was the officer in Foreign Exchange Department in Andhra Bank initially.
28. However, the Investigation Officer of the CBI after conducting a detailed investigation found that Ramesh Reddy was not aware of the sanctioned financial assistance to accused No.2 by accused No.1 and therefore, he was dropped from the criminal case while filing the charge-sheet.
29. CW.1 being complainant has been examined as PW.1 and necessary material evidence on record has been collected in the form of documentary evidence were all examined by the prosecution as PWs.2 to 20. Sanction to prosecute the accused No.1 was passed by the competent authority and the sanction order is not in serious dispute.
30. Pursuant to the criminal case that has been foisted against accused No.1, he was also removed from the service. Documentary evidence predominantly establishes that invoice dated 02.01.1995 and 28.01.1995, which were marked as Exs.P5 and 6 shows that goods
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NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 were being exported. Likewise, other invoices also show that goods were exported. Cheques were drawn against those export bills submitted by accused No.2 in his current account and amount was transferred to current account of accused No.2 by accused No.1. But other documents collected by CBI would go to show that no goods had been exported as per the export bills. Proceeds transferred were also siphoned away and needless to emphasise that there was a tacit understanding between accused Nos.1 and 2 in sharing the proceeds in the current account of accused No.2.
31. In a matter of this nature, expecting the positive evidence to prove the existence of conspiracy is impermissible as rightly contended on behalf of the prosecution, which is a settled principle of law which requires no emphasis that conspiracy is hatched in secrecy.
32. Expecting the positive evidence in such matters is next to impossibility and Court has to draw inference
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NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 from the attendant and circumstances as is held in the case of Mohammed Khalid v. State of West Bengal reported in (2002) 7 Supreme Court Cases 334.
33. Therefore, in the case on hand, in the absence of material placed on record it would depict that the export bills furnished by accused No.2 to accused No.1 to obtain the financial assistance from Andhra Bank, N.R.Road Branch, would be sufficient enough to hold that the sanction of financial assistance by the Bank to accused No.2 proceeds of which were transferred to current account of accused No.2, is based on fake and forged export bills. The same would conclude the offences under Sections 420, 468, 471 of IPC.
34. Coming to the question of the proof of offence under Section 13(1)(d) is concerned, since there is no material on record which would conclusively establish demand made by the public servant and such demand is accepted by accused No.2 and he has paid the bribe amount whereby the Court could infer that there is a
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NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013 obtainment of illegal gratification which is a sine qua non to conclude the offence under section 13(1)(d) punishable under Section-13(2) of Prevention of Corruption Act. Since the necessary ingredients are not made out by the prosecution following the principles of Neeraj Dutta v. State (Government of NCT of Delhi) reported in (2023) 4 Supreme Court Cases 731, this Court is of considered opinion that accused No.1 is entitled to get an order of acquittal for the charge under Section 13(1)(d) r/w.Section13(2) of Prevention of Corruption Act.
35. The apprehension of the prosecution that by acquitting the accused No.1 for the offence under Section Section 13(1)(d) r/w section13(2) of Prevention of Corruption Act the disqualification may extinguish insofar as accused No.1 is concerned in claiming the retirement benefit is concerned, is quelled by accused No.1 by filing necessary affidavit before this Court as referred to supra. Therefore, from the above discussion, the points No.1 and 2 are answered partly in the affirmative.
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36. Regarding point No.3:
Since this Court has set aside the order of conviction of accused No.1 for the offence under section 13(1)(d) as referred to supra, for the remaining IPC offences, there is no minimum punishment prescribed under the statute.
Taking note of the fact that the incident is of the year 1995, much water has been flown under the bridge and accused persons are also in advanced age in their life.
37. Thus, directing the appellants to undergo simple imprisonment as ordered by the learned trial Judge in the impugned judgment would act harsh on them. At the same time, this Court also cannot loose sight of the fact that while setting aside the imprisonment period, fine amount needs to the enhanced reasonably.
38. Enhancing the fine amount in a sum of Rs.1,00,000/- to each of the accused persons would meet the ends of justice in the case on hand.
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NC: 2025:KHC:5520 CRL.A No. 1392 of 2012 C/W CRL.A No. 17 of 2013
39. Accordingly, point No.3 is answered partly in the affirmative.
40. Regarding point No.4, in view of finding of this Court on point Nos.1 to 3, the following order is passed:
ORDER
(i) Appeals are allowed in part.
(ii) The conviction of appellants in both the appeals under Section 120(B) r/w. Section 420, 468 and 471 IPC is maintained and conviction of the accused No.1 who is the appellant in Crl.A.No.17/2013 for the offences under Section 13(1)(d) r/w.
Section 13(2) of Prevention of Corruption Act is hereby set aside.
(iii) Sentence of imprisonment ordered by the XLVII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore in Special (Corruption) Case No. 184/2000 by judgment dated 21st day of November, 2012 insofar as both the appellants are concerned are modified as under:-
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NC: 2025:KHC:5520
CRL.A No. 1392 of 2012
C/W CRL.A No. 17 of 2013
Sentence of imprisonment is set
aside by enhancing the fine amount in a sum of Rs.1,00,000/- (Rupees One lakh only) (over and above fine amount imposed and paid by the appellants) to be payable on or before 15th of March, 2025.
Failing to pay the enhanced fine amount, the appellants shall undergo imprisonment as ordered by the trial Court Judge.
(iv) Office is directed to return the trial court records along with a copy of this order forthwith.
Sd/-
(V SRISHANANDA) JUDGE PSJ List No.: 2 Sl No.: 3