Kerala High Court
B. Venugopal vs Central Bureau Of Investigation on 7 October, 2017
Author: K.Abraham Mathew
Bench: K.Abraham Mathew
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
THURSDAY, THE 30TH DAY OF NOVEMBER 2017/9TH AGRAHAYANA, 1939
CRL.A.No. 987 of 2017 ()
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AGAINST THE JUDGMENT IN RC 12/2008 of SPL.C SPE/CBI-II&4
ADDL.D.C.,EKM DATED 07.10.2017
APPELLANT/ACCUSED:
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B. VENUGOPAL
S/O.LATE B. LAKSHMINARAYANA,
AGED 53 YEARS, OCC: MANAGER & PROJECT DIRECTOR,
NHAI.R/O 27/321, SANTHI ROAD,
CHEMPUKKAVU,THRISSUR,
(PRESENT ADDRESS) H.NO. 2-59, PARKAL,
NEAR VEGETABLE MARKET,
WARANGAL DISTRICT, TELANGANA.
BY ADVS.SRI.C.M.R. VELU
SRI.LAVARAJ M.G.
SMT.SHARADA KATAKAM
RESPONDENTS/COMPLAINANT & STATE:
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1. CENTRAL BUREAU OF INVESTIGATION
COCHIN - 682 016.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HON'BLE HIGH COURT OF KERALA,
ERNAKULAM, KOCHI - 31.
R1 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, SC
R2 BY PUBLIC PROSECUTOR,SRI.C.M.KAMAPPU
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
30-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rk
K.ABRAHAM MATHEW,J.
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CRIMINAL APPEAL.NO. 987 OF 2017
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Dated this the 30th day of November, 2017
JUDGMENT
In C.C. No. 2/2009 on the file of the Special Judge (SPE/CBI)-2 Ernakulam the appellant was tried for the offences under Section 13(2) r/w 13 (1) (d) Prevention of Corruption Act and Sections 420, 468 and 471 IPC. In 2006 - 2008, he was working as Manager and Project Director of National Highwayss Authority of India. He was attached to project implementation unit at Palakkad. He claimed travelling allowance and daily allowance from the department for his alleged stay at Hotel Star at New Delhi from 21.06.2006 to 13.07.2006, and for his stay on 03.01.2007 and 13.01.2007 at Hotel Geeth, Thiruvananthapuram. His claims were allowed and for his stay at New Delhi Rs.61,875/- and for his stay at Thiruvananthapuram Rs.4,950/- (2475 + 2475) were paid to him. The allegation is that the documents filed by him along CRIMINAL APPEAL.NO. 987 OF 2017 2 with his claims were false documents. The trial ended in his conviction. For the offence under Section 13(2) P.C.Act he has been sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh Only) and in default of payment of the fine to undergo simple imprisonment for a further period of one year; for the offence under Section 420 IPC to undergo simple imprisonment for two years and to pay a fine of Rs.50,000/- (Rupees Fifty thousand Only) and in default of payment of the fine to undergo simple imprisonment for a further period of one year; for the offence under Section 468 IPC to undergo simple imprisonment for a period of two years and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand Only) and in default of payment of the fine to undergo simple imprisonment for a further period of one year, and for the offence under Section 471 IPC to undergo simple imprisonment for one year. There is a direction that the sentences shall run concurrently. The convictions and the sentences are challenged in this appeal. CRIMINAL APPEAL.NO. 987 OF 2017 3
2. Heard the learned counsel for the appellant and the learned standing counsel for the respondent, CBI. Perused the lower court records.
3. The learned Counsel for the appellant submitted that it is not proper for this Court to dismiss the appeal at the threshold. He relies on the decision of the Supreme Court in Shivaji Narayan Bachhav Vs. State of Maharastra [AIR 1983 S.C 1014], Lal Mandi Vs. State of W.B [AIR 1995 S.C 2265] and K. Pandurangan Vs. S.S.R. Velusamy [2003(8) SCC 625] . In the first case the Supreme Court held: "Summary rejection of the appeal with the laconic expression 'dismissed' seems to be a drastic step in such cases. To so reject an appeal is to practically deny the right of appeal". It is clear that the impugned judgment before the Supreme Court did not contain any reasons for the dismissal. In the second case the apex court has mentioned the duties of an appellate court. It has emphasised the duty of the appellate court to appreciate the evidence on record. In the last of the three cases what has been CRIMINAL APPEAL.NO. 987 OF 2017 4 held by the court is that the appellant is entitled to the benefit of hearing before the appellate court on merits of the case. That was a case in which the appellate court did not consider the merits of the case, but only the legality of the sentence imposed on the appellant. None of these decisions are applicable to the present case. The appellant has been heard on merits. It is not in dispute that under Section 384 Cr.P.C. this Court has the power to dismiss an appeal at the threshold.
4. The legality of the conviction of the appellant is challenged on the ground that there was non compliance with Section 279 Cr.P.C. The appellant hails from Andra Pradesh. It is submitted that he does not understand Malayalam and the evidence was recorded in Malayalam. The complaint is that the deposition of the witnesses was not translated to him into English or Telungu. The decision in Errappa and others Vs. Emperor [AIR 1930 Madras 186], Pappan Narayanan Vs. Kerala State [AIR 1959 Kerala 354], K.M.Subramani Vs. State of A.P [2003 Crl L J 3526], K.L.Madan Vs. Satyam CRIMINAL APPEAL.NO. 987 OF 2017 5 Finlease Pvt.Ltd & Another [2012(4) Crimes (HC) 146] and Shivanarayan Kabra Vs. The State of Madras [AIR 1967 S.C 986] are relied on by the appellant. There is no dispute that as provided by Section 279 Cr.P.C. the depositions of the witnesses should have been translated to the appellant into a language known by him. It is seen that the depositions of some of the witnesses were recorded in English.
5. It is not disputed before me that the appellant did not understand Malayalam. His examination under Section 313 Cr.P.C. was conducted in English. He admitted that he heard the evidence and he understood it. Thus his own admission proves that he understood the evidence given in the case. It is pertinent to note that he was defended by a senior Counsel of this court, who is acknowledged as a veteran in the relevant field. The observation of the Supreme Court in Shivanarayan Kabra Vs. The State of Madras [AIR 1967 SC 986] is relevant in this connection: "It is pointed out by the Sessions Judge that the appellant did not make any objection at CRIMINAL APPEAL.NO. 987 OF 2017 6 the time the evidence was given and it appears that he was represented by two eminent advocates ................................. in the trial court who knew both these languages and who would not have allowed the interest of the appellant to be jeopardised even to the smallest extent". Non compliance with Section 279 IPC is no ground to set aside conviction unless it has resulted in injustice, which is clear from the observation of the Supreme Court in the above case. It is also pertinent to note that the learned Senior Counsel who appeared for the appellant was engaged by him and not appointed by the Court.
6. It is also the submission of the learned Counsel that no preliminary enquiry was conducted by the CBI when it received the complaint against the appellant. It may be stated that the commission of the offence came to light when the police officers conducted a search of the house of the appellant in the course of investigation into another case. So the detection was accidental. Moreover, the case depends upon documentary evidence. The appellant cannot be heard to say CRIMINAL APPEAL.NO. 987 OF 2017 7 that since there was no preliminary enquiry his conviction should be set aside.
7. Another submission on behalf of the appellant is that the investigation was not conducted by the Superintendent of Police. The CBI registered the case for the offence under Section 7 of the Prevention of Corruption Act. The appellant was trapped. The commission of the offence for which the appellant has been convicted was detected accidentally in the course of the investigation of the other case. There is no requirement that it should have been investigated by a Superintendent of Police.
8. Mention has already been made that the testimony of some of the witness was recorded in English. One of the grounds stated in the appeal memorandum to set aside the conviction is that evidence was not recorded in the language of the Court. Section 272 Cr.P.C. provides that the State Government may determine what shall be for the purposes of the Code the language of each court within the state other than CRIMINAL APPEAL.NO. 987 OF 2017 8 the High Court. On the basis of this empowerment, the Government of Kerala has issued a notification declaring both English and Malayalam the official languages of the subordinate courts in the state (see High Court Circular No.7 of 1973).
9. One of the decisions relied on by the appellant is the one in Biswanath Sasamal Vs. State of Orissa [2015 Lawsuit (ORI) 563] = [2016(1) Orissa LR 569]. What is held in it is that evidence should be recorded in the presence of the accused or his pleader. There is no quarrel about it. Section 273 of the Code contains the direction. But there is no complaint that the trial court recorded the evidence in the absence of the appellant or his counsel.
10. The learned counsel has brought to my notice the decision of the Supreme Court in State Inspector of Police, Vishakhapatnam Vs. Surya Sankaram Karri [(2006) 7 SCC. 172]. My attention has been brought to paragraph 16 of the judgment, which runs as follows:
CRIMINAL APPEAL.NO. 987 OF 2017 9
"The approach of the learned Special Judge, to say the least, was not correct. When a statutory functionary passes an order, that too authorising a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in administrative law. The statutory functionaries are enjoined with a duty to pass written orders".
I do not know how this decision is relevant for the present purpose.
11. There was no valid sanction for the prosecution of the appellant for the offences under the Indian Penal Code is yet another submission of the learned counsel. The appellant was tried for the offences under the Prevention of Corruption Act and the Indian Penal Code. The appellant is an officer in CRIMINAL APPEAL.NO. 987 OF 2017 10 the Roads and Buildings Department of Government of Andra Pradesh. He was working on deputation with the National Highways Authority of India during the relevant period. Ext.P22 is the order by which sanction was accorded to prosecute the appellant for the offence under the Prevention of Corruption Act. It was issued by PW9 Principal Secretary, Roads and Buildings Department, Government of Andra Pradesh. What is disputed before me is not the competency of PW9 to grant sanction. The submission is that the sanction was issued for the prosecution of the appellant for the offence under Section 13(2) P.C.Act only and there was no sanction for the prosecution for the offences under the Indian Penal Code. That is true. The question is whether PW9 should have granted sanction for the prosecution of the appellant for the offences under the Penal Code also. Section 19 of the Provision of Corruption Act makes it clear that previous sanction is necessary only for taking cognisance of the offences punishable under the Act. There is no mandate that if an CRIMINAL APPEAL.NO. 987 OF 2017 11 accused is tried for offences under the Indian Penal Code also, sanction should be given for prosecution of those offences also. Sanction for the prosecution of an accused for the offences under the Indian Penal Code is governed by Section 197 of the Criminal Procedure Code. Under that Section sanction is necessary only when the accused is prosecuted for the offence alleged to have been committed while acting or purporting to act in the discharge of his official duty. It is now well settled that making false documents and using them as evidence is no part of the official duty of a public servant. Reliance may be placed on the decision of the Supreme Court in Ramesh Lal Jain Vs Naginder Singh Rama [HIR 2006 SC 336] where the precedents have been discussed. So sanction was not necessary for the prosecution of the appellant for the offences under the Indian Penal Code.
12. To prove its case the prosecution relies on the evidence of the staff of the Hotels, where the appellant claimed to have stayed and the documents/registers maintained by the CRIMINAL APPEAL.NO. 987 OF 2017 12 Hotels and expert evidence and seizure of certain blank hotel bills from the house of the appellant.
13. Ext.P4 is the T.A./D.A bill submitted by the appellant for his alleged stay at Hotel Star,New Delhi from 21.06.2006 to 13.07.2006. In support of his bill he produced Ext.P5(m) bills and vouchers allegedly issued by the Hotel. His claim was allowed and he was paid Rs.61,875/-. Ext.P7 is the payment voucher. Ext.P8 is the TA/DA bill submitted by the appellant for his alleged stay at Hotel Geeth, Thiruvananthapuram on 03.01.2007 and 13.01.2007. Ext.P9(b) is the bill/voucher allegedly issued by the Hotel for his stay on 03.01.2007 and Ext.P9(e) for his stay on 13.01.2007. The claim was allowed and the amount was paid. Ext.P11 is the voucher signed by him. These facts are proved by the evidence of PW2 Junior Accounts Officer of National Highways Authority of India. And they are not disputed. Moreover, the appellant admitted them in his examination under section 313 of the Code of Criminal Procedure.
CRIMINAL APPEAL.NO. 987 OF 2017 13
14. According to the prosecution Exts.P5(m), P9(b) and P9(e) bills allegedly issued by the two Hotels mentioned above are false documents. The appellant claimed that he stayed at Hotel Star, New Delhi from 21.06.2006 to 13.07.2006 and he paid Rs.61,875/-. To prove that this is false the prosecution examined PW10 Santhosh Kumar Jha, who was Manager of the Hotel during the relevant period. He testified that from 21.06.2006 to 13.07.2006 the appellant had not stayed in the Hotel and Ext.P5(m) was not issued by the Hotel. Ext.P25(A) is the guest register maintained by the Hotel. The name of the appellant does not find a place in it. The room number in which the appellant claimed to have stayed is shown as '105' in Ext.P5(m). It dropped from PW10 that in 2006 there was no room in the Hotel having number '105'. In Ext.P5(m) the room rent is shown as Rs.2,500/- per day. It came out in the evidence of PW10 that in 2006 there was no room in the Hotel carrying a rent of Rs.2,500/- per day. I have perused the evidence of PW10. I do not find any reason to disbelieve his CRIMINAL APPEAL.NO. 987 OF 2017 14 testimony. There cannot be any dispute that Ext.P5(m) is a false document. Admittedly the appellant submitted it along with Ext.P4 bill. He used it as a genuine document. The National Highwayss Authority of India paid the amount claimed by him. So the offences under Sections 420 and 471 stand proved.
15. The appellant claimed that on 03.01.2007 and 13.01.2007 he stayed at Hotel Geeth, Thiruvanathapuram, for which he paid Rs.2,475/- each. Exts.P9(b) and P(e) are said to be the bills issued by the Hotel for his stay on 03.01.2007 and 13.01.2007 respectively. To prove that these documents are false the prosecution relies on the evidence of PW3 Administrative Officer of the Hotel, where the appellant allegedly stayed. It came out in his evidence that the name of the Hotel at present is Hotel Geeth International and earlier it was Hotel Geeth. He denied that Ext.P9(b) & Ext.P9(e) were issued by Hotel Geeth as claimed by the appellant. His evidence proves that till 2005 the name of the Hotel was Hotel CRIMINAL APPEAL.NO. 987 OF 2017 15 Geeth and in 2005 it was renamed as Hotel Geeth International. The emblem of the hotel seen in Exts.P9(b) and
(e) is the old one. It has not been used after 2005. In 2005 the hotel stopped issuing hand written bills on the introduction of computerised billing system. P9(b) and P9 (e) are hand written bills. They are in old format. The name of the hotel is shown as Hotel Geeth. In 2006, which is the relevant period, Hotel Geeth was not in existence. To support the evidence of PW3 the prosecution has produced Ext.P5(l) bill dated 15.07.2006. This document proves that after the name of the hotel was changed to Hotel Geeth International, the appellant stayed there. It is in new format. ExtP24 is its computer print out.
16. Exts.P23 series are copies of Guest Register maintained by Hotel Geeth International for the period from 15.07.2006 to 17.07.2006, 03.01.2007 to 05.01.2007 and 13.01.2007 to 15.01.2007 respectively. The dates relevant for the present case are 03.01.2007 and 13.01.2007. These CRIMINAL APPEAL.NO. 987 OF 2017 16 documents have been certified under Section 65-B of the Indian Evidence Act. The entries in the document do not disclose that the appellant stayed in the hotel on 03.01.2007 or 13.01.2007 as claimed by him.
17. The evidence undoubtedly proves that Exts.P9(b) and P9(e) are false documents and they were used by the appellant as genuine. The question is whether it is he who forged Exts.P5(m), P9(b) and P9(e). On 20.06.2008, PW11 Inspector of Police searched the house of the appellant allegedly in the presence of PW4 who was working as Manager at State Bank of Travancore, Panampally Nagar branch. Exts.P17 and P17(a) blank forms of the bills of Hotel Geeth, Thiruvananthapuram were seized from the house. They are exactly like Ext.P5(m). The attempt was made to show that there was no search as claimed by PW11. PW4 deposed that at the request of the Inspector of Police he went to the house of the appellant to witness the search. The learned counsel submits that PW4 is a stock witness of the CBI. In the cross- CRIMINAL APPEAL.NO. 987 OF 2017 17 examination he mentioned the circumstances in which he happened to be a witness. In connection with a case relating to his bank, he used to give to the office of the CBI. This alone cannot be a ground to hold that he is a stock witness of the CBI. Admittedly, he went to the CBI office in connection with some official matters. He is a disinterested witness. There is nothing in his cross examination or of PW11 to show that their evidence is not acceptable. The prosecution case that Ext.P17 and Ext.P17(a) were seized from the house of the appellant stands proved. The conclusion is that he had kept in his custody blank bills in the name of Hotel Geeth.
18. PW11 claimed to have taken specimen handwriting of the appellant in the presence of PW5 to PW7 . They were marked Exts.P18 to Ext.20. They were sent to Government of India Laboratory Hyderabad, where they were examined by PW8 C. Rajesh, who was working as Assistant Government Examiner of questioned documents. He examined Exts.P18 to Ext.P20 and writings in Exts.P5(m), P9(b) and P9(e). He found CRIMINAL APPEAL.NO. 987 OF 2017 18 that they were written by the same person. Ext.P21 is his report. It was submitted that PW5 to PW7 are not independent witnesses and their evidence is false. PW5 was working as Tax Assistant at Central Excise Office, Ernakulam - I. At the request of CBI he claimed to have gone to the CBI office. He deposed that he witnessed CBI officers obtaining handwriting of the appellant. They were marked Exts.P18 series. The CBI officers obtained the signatures also of the appellant in Exts.P18 series. In his cross examination he admitted that he had gone to the CBI office five times. Merely, because he obliged the CBI officers five times, it cannot be said that he is not an independent witness. No motive has been attributed to him for giving false evidence.
19. PW6 was working as Manager in the office of the Supplyco, when he was allegedly requested by the CBI officers to be a witness for obtaining specimen handwriting of the appellant. He deposed that in Exts.P19 series the signatures of the appellant were taken by the CBI officers. The witness has CRIMINAL APPEAL.NO. 987 OF 2017 19 signed in the document. In the cross examination he stated that he went to the office of the CBI in connection with a case involving the Supplyco. That cannot be a ground to hold that his evidence is biased.
20. PW7 was working as Deputy Manager of the State Bank of Travancore, Panampally Nagar Branch. He deposed that his Chief Manager asked him to go to the CBI office because a request had been made by CBI to send a witness for obtaining the handwriting and signatures of the appellant. At the CBI office, in Exts.P20 series handwriting and signatures of the appellant were obtained. It was not even suggested to him that he had any interest in this matter. His impartiality could not be challenged in the cross examination.
21. The evidence of PW11 Inspector of Police that handwriting and signatures of the appellant were taken at the CBI office in the presence of PW5 to PW7 stands corroborated by the evidence of PW5 to PW7. Ext.P21 report given by PW8 C.Rajesh proves that Exts. P5(m), P9(b), P9(e) and Exts.P18 to CRIMINAL APPEAL.NO. 987 OF 2017 20 P20 were written by the same person. And that is the appellant. The evidence proves that it was he who created the false documents. The offence under Section 468 also stands proved.
22. One of the grounds taken by the appellant is that Exts. P12 and P13 were not admissible. The lower Court has not relied on them. So there is no room for any complaint.
23 Objections were raised to the marking of Exts. 16, 25A and 28. The learned Special Judge has not taken a decision with regard to the objections. But that does not affect the conclusions he has reached.
24. The evidence adduced by the prosecution proves beyond doubt its allegation that the appellant committed the offences under section 13(2) read with section 13(1)(d) of the P.C.Act and Sections 420, 468 and 471 IPC. The trial court has rightly convicted him of the said offences.
25. Having regard to the nature of the evidence committed by the appellant it cannot be said that the CRIMINAL APPEAL.NO. 987 OF 2017 21 sentences imposed on the appellant are harsh. So the sentences also are only to be confirmed.
In the result this appeal is dismissed.
Sd/-
K.ABRAHAM MATHEW,JUDGE //TRUE COPY// PA TO JUDGE rk/04.12.2017