Madras High Court
Rathnavel vs //
Author: G.Jayachandran
Bench: G.Jayachandran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date of Reserving Judgment 20.12.2017 Date of Pronouncing Judgment 23.01.2018 CORAM : THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Criminal Appeal Nos.258, 265, 281, 287 and 301 of 2009 Rathnavel ...Appellant in Crl.A.258 of 2009 V.Palanivel ...Appellant in Crl.A.265 of 2009 R.Murugesan ...Appellant in Crl.A.281 of 2009 D.Gunasekaran ...Appellant in Crl.A.287 of 2009 J.S.Prabhu ...Appellant in Crl.A.301 of 2009 //versus// State by Inspector of Police, SPE, CBI, ACB, Chennai. ...Respondent in Crl.A.258, 265, 281, 287 of 2009 State represented by The Inspector of Police, Special Police Establishment Central Bureau of Investigation Anti-Corruption Branch 3rd Floor, Shastri Bhavan Haddows Road, Nungambakkam, Chennai 600 006. R.C.No.30(A)/2002. ...Respondent in Crl.A.301 of 2009 PRAYER in Crl.A.No.258 of 2009: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code against the order of conviction and sentence passed by the XI Additional Judge for CBI Cases, Chennai -1. in C.C.No.66 of 2004 dated 19.05.2009 convicting the appellant under Section 120-B /w.420, 467, 467 r/w.471, 419 IPC and U/S.13(2) r/w.13(1)(d) of PC Act 1988 to undergo RI for 2 years and to pay a fine of Rs.5000/- default to undergo RI for 6 months and under Section 467 IPC, 467 r/w 471 IPC and 420 IPC sentence to undergo RI for 4 years and to pay a fine of Rs.5,000/- in default to undergo RI for 6 months. PRAYER in Crl.A.No.265 of 2009: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code against the Judgment/Conviction and Sentence dated 19.05.2009 made in C.C.No.66 of 2004 passed by Learned XI Additional Judge for CBI Cases, Chennai, in so far as the Appellant/A2 is concerned. PRAYER in Crl.A.No.281 of 2009: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code against the Judgment dated 19.05.2009 passed in C.C.No.66 of 2004 on the file of XI Additional Special Judge for CBI Cases (CBI Cases relating to Banks and Financial Institutions), convicting the Appellant/A5. PRAYER in Crl.A.No.287 of 2009: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code against the Judgment dated 19.05.2009 passed in C.C.No.66 of 2004 on the file of XI Additional Judge for CBI Cases, Chennai 1. PRAYER in Crl.A.No.301 of 2009: Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 and under Section 27 of the Prevention of Corruption Act, 1988, challenging his conviction and sentence passed by the Learned XI Additional Special Judge for CBI Cases, Chennai 1 dated 19.05.2009 in C.C.No.66 of 2004. For Appellants : Mr.V.Ramana Reddy in Crl.A.258 & 265 of 2009 Mr.N.R.Anantha Ramakrishnan in Crl.A.281 & 287 of 2009 Mr.A.V.Somasundaram for M/s Lakshmi Priya Associates in Crl.A.301 of 2009 For Respondent :Mr.K.Srinivasan, in all appeals Special Public Prosecutor for CBI Cases ******** COMMON JUDGMENT
These appeals are arising out of conviction against the appellants passed by the learned XI Additional Judge for CBI Cases, Chennai dated 19.05.2009 in C.C.No.66 of 2004.
2. Brief facts of the prosecution case is as follows:
Based on the complaint dated 19.07.2002 given by one Shri Sudhakar N.Bhat, Assistant General Manager, Corporation Bank, Zonal Office, Tamil Nadu, CBI has registered a case under R.C.MA1 2002 A 0030, dated 19.07.2002 against (1) J.S.Prabhu[A1], (2) Shri.V.Palanivel[A2], (3)Shri. Gunasekaran and other unknown public servants and private individuals for the offence of conspiring to cheat the Corporation Bank by sanctioning the loan to fictitious firm, which is not in existence. Pursuant to the said conspiracy, an application for loan annexed with forged revenue documents like, patta, chitta, adangal, kist receipts, house tax receipts and fake encumbrance certificate submitted to the Bank. Based on those documents, A1[J.S.Prabhu] being Manager of the Bank has sanctioned loan and allowed the borrower to withdraw the money immediately for purpose other than for which the loan was sanctioned under CORP VYAPAR Loan Scheme. The trial Court has taken cognizance of the final reports in C.C.Nos.61 to 66 of 2004 and tried the appellants. These appeals arise out of judgment passed in C.C.No.66 of 2004 by the Special Court for CBI Cases, Chennai.
3. The specific case of the prosecution in these appeals is that one Mr.Murugesan, Proprietor of M/s Saravana Lathe Works had applied for loan of Rs.3 lakhs to purchase new raw materials for manufacturing auto mobile spares. In the said application, he has shown one Kanniappan as guarantor who has signed in this application agreeing to offer his property at Kizmudhachambedu village as security. Along with this application, Mr.Murugesan has furnished title deed of property bearing S.No.390/8 of Gummidipoondi Taluk, chitta, adangal and encumbrance certificate in respect of the said property offered as collateral security. After sanctioning the loan, money of Rs.3 lakhs had been deposited into the account opened in the name of M/s Saravana Lathe Works. Later, the chitta, adangal and encumbrance certificate in respect of the property given as collateral security were found to be fabricated and false documents. The valuation certificate had been issued by T.N.Ravi[A6] as if the property given as collateral security consisting of land and building. In fact, it is only a vacant land. The money credited into the account of M/s Saravana Lathe Works had been withdrawn immediately through blank cheques signed by Murugesan and handed over to A2[Palanivel], who has filled up the cheques and siphoned the money.
4. Further, the investigation has brought to light that there is no such address bearing Door No.80, GST Road, Tambaram, Sanatorium, Chennai and there is no firm by name M/s Saravana Lathe Works. Thus, for non-existing firm based on forged documents, impersonating Kanniappan as guarantor. The title deed and other documents were obtained by Gunasekaran[A3] from Kanniappan on a false representation that he will arrange loans to Kanniappan. By misappropriating those documents forged deed of security and deposit of title deeds in the name of Kanniappan were created by Rathnavel[A4]. Making use of the forged documents as genuine the loan application was made and based on the fabricated records, the loan of rs.3 lakhs has been obtained. After sanctioning the loan, a portion of the money has been fraudulently transferred to the account of Sri Hari Agencies at Tamil Nadu Mercantile Bank, Tambaram Branch opened by A2[Palanivel] with the introduction of one Thirumoorthy, A2[Palanivel] had impersonated himself as Ramasamy and Kannan and withdrawn the remaining money deposited in the account of M/s Saravana Lathe Works through cheques signed by Murugesan[A5]. The loan amount of Rs.3 lakhs sanctioned and credited into the account of M/s Saravana Lathe Works were withdrawn through cheques between 03.01.200 and 09.01.2000 as follows:
1.D.Gunasekaran[A3] A/c ---Rs.72,000-00
2.Hari Agency A/c ---Rs.50,000-00
3.Sri R.Murugesan[A5] ---Rs.40,000-00
4.Sri.R.Murugesan[A5] ---Rs.30,000-00
5.Ramasamy(impersonated by A2) ---Rs.40,000-00
6.Kannan(impersonated by A2) ---Rs.42,000-00
7.D.Gunasekaran[A3]bearer cheque ---Rs.20,000-00
5. Based on the final report, the trial court has framed charge under Sections 120-B r/w 420, 406, 467, 468, 467 r/w 471, 468 r/w 471 IPC and 13(2) r/w 13(1)(d) of PC Act, 1988 against all the accused and for the specific offence of cheating, forgery and fabricating the documents and using it as genuine against each accused individually besides charge of impersonation against A4[Rathnavel] for impersonating himself as Kanniappan. Before the trial Court, the prosecution has examined 24 witnesses, marked 66 exhibits. In defence side, 3 witnesses were examined after considering the evidence placed by the prosecution as well as defence, the trial court has held the accused guilty for the offence charged and sentenced them as follows:-
Rank of the accused Conviction under Section Sentence imposed by the trial Court A1 to A6 Under Sections 120-B r/w 420, IPC, under Section 5(2) r/w 5(1)(d) of PC Act, 1947 and Section 13(2) r/w 13(1)(d) of PC Act, 1988 Each of them to undergo RI for 2 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months A5 Under Section 420 IPC To undergo RI for 4 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months A6 Under Sections 467 IPC and 467 r/w 471 IPC each To undergo RI for 4 years each and to pay a fine of Rs.5,000/- i/ d to undergo RI for 6 months A3 Under Sections 406, 467, 467 r/w 471 IPC To undergo RI for 4 years each and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months A2
1.Under Section 419 IPC
2.Under Section 467 IPC, 467 r/w 471 IPC each
1.To undergo RI for 3 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months
2.To undergo RI for 4 years each and to pay a fine of Rs.5000/- in default to undergo 6 months A4 Under Section 419 IPC To undergo RI for 3 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months A1 Under Section 13(2) r/w 13(1)(d) of PC Act, 1988 To undergo RI for 2 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months
6. Aggrieved by the judgment of conviction and sentence, the present appeals are filed. A1[J.S.Prabhu], who is the appellant in C.C.No.301 of 2009 had challenged the trial Court judgment on the ground that sanction to prosecute is issued by a person who is incompetent to accord sanction. Hence, the trial is invalid and void ab initio. The sanction order is issued without application of mind and without perusal of entire documents. Admittedly, the handwriting expert opinion was not placed before the sanctioning authority PW-1[Mr.B.R.Bhat]. Therefore, the order of sanction to prosecute without application of mind is erroneous.
7. The appellant had sanctioned the loan only after perusal of the legal opinion issued by the panel lawyer and the report of approved valuer. Therefore, there is no material evidence to show the accused[A1] had not done pre-sanction inspection. The forgery, fabrication of the revenue documents accompanied with the loan application could not be scrutinized by the appellant and legal opinion of the panel lawyer is the only material document where the genuineness of the document could be tested. Relying upon the opinion by the competent lawyer, he granted loan as the branch manager. Therefore, he cannot be held responsible or liable for the action done by him in the course of his duty with due diligence.
8. Mere procedural irregularity and non adherence to the Rule or Procedure without dishonest intention on his part will not make him liable for criminal prosecution. Further, the counsel for the appellant submitted that the trial Court has not properly appreciated the evidence of DW1 and DW3 who had deposed that the outstanding loan amount had been settled by A2[Palanivel] and there is no due to the bank from the borrower. When there is no pecuniary loss to the bank, the charges against him does not survives anyfurther.
9. He also submitted that relying upon the uncorroborated evidence of the handwriting expert and the evidence of postal employees, the trial Court has concluded that the loan has been sanctioned to fictitious persons based on forged documents. Further, the dicta laid down by the Hon'ble Supeme Court in the following cases has not been properly appreciated by the trial Court. (1)Union of India v. Major J.K.Khanna & Major I.C. Lala [1972 Cri.L.J.849];(2)Major S.K.Kale v. State of Maharastra [AIR 1977 SC 822] and (3) C.Chenga Reddy v. State of A.P. [1996 Cri.L.J.3461(S.C.)].
10. A2[Palanivel] appellant in Crl.A.No.265 of 2009 would submit that the alleged loan in the name of M/s Saravana Lathe Works is nothing to do with A2 [Palanivel]. The loan extended to the beneficiaries as per Central Government Scheme, has not been mis-used by the borrower. Furthermore, the entire loan amount has been discharged subsequent to the criminal case. Therefore, there can be no charge of criminal conspiracy for cheating or mis-appropriation. The prosecution has miserably failed to show that A2[Palanivel] has fabricated the documents along with the loan application. He cannot be fastened with criminal liability in the absence of any materials evidence.
11. A3[Gunasekaran] appellant Crl.A.No.287 of 2009 would submit that the trial Court has falsely held this appellant guilty of criminal conspiracy along with other accused persons. For holding so the trial Court has solely relying upon the evidence of PW-17[Mr.G.Panchacharam] rubber stamp maker who is a tutored witness for the prosecution and not worthy witness to rely upon. In the absence of evidence to show that the documents such as chitta, adangal and encumbrance certificate were fabricated by this appellant and in the absence of material object namely, rubber stamp seal used to create the said documents, the trial Court ought not to have convicted the appellant. The opinion of hand writing expert has been given undue weightage in evidence. Opinion of the expert is not a conclusive proof. Therefore, the conviction based on the hand writing expert had led to miscarriage of justice.
12. A4[Rathnavel] appellant, who had preferred Crl.A.No.258 of 2009 contended that the trial Court has failed to appreciate the fact that PW-6[Mr.K.Kanniappan]title holder of the property had voluntarily furnished his property as collateral security for the loan availed by M/s Saravana Lathe Works. He had deposed falsely contrary to the fact just to save himself from the prosecution and to protect the property given as security with full knowledge and consent. He has denied his own signature found in Ex.P27 and the trial Court without comparing the signature found in the document with that of the admitted signature through expert had arrived at the conclusion that the signature found in Ex.P27 is a forged signature. It is further contended that having discharged the loan amount to the satisfaction of the bank which fact spoken through DW1 and DW3, the trial court ought not to have convicted this appellant. When the ingredient of cheating is not available for prosecution, the trial Court ought to have concluded that the entire transaction being civil in nature, no criminal liability fastened on the accused persons. In any event, the only allegation against the appellant is that he forged the signature of Kanniappan as guarantor to the loan. When he is neither a beneficiary of the loan nor any wrongful loss caused to the bank due to the sanction of the loan (since the entire loan has been discharged by Palanivel[A2] as admitted by DW1 and DW3), the trial Court judgment is liable to be set aside.
13. A5 [Murugesan]appellant Crl.A.No.281 of 2009 contended that M/s Saravana Lathe Works is an existing firm which has obtained SSI certificate which is marked as Ex.P50. The evidence of PW-20[Mr.Palaniappan] confirms issuance of SSI Certificate to Murugesan the appellant herein to run the Small Scale Industry by name M/s Saravana Lathe Works. The evidence of PW15 and PW16, the commissioner of Tambaram Municipal and CTO incharge of Tambaram Assessment Circle are not the competent witnesses to speak about the existence of M/s Saravana Lathe Works. The deposition of PW-20[Mr.S.V.Palaniappan], who has spoken about the entries found in Ex.P50 certificate issued to M/s Saravana Lathe Works proves the existence of M/s Saravana Lathe Works. The trial Court has contrarily relied upon the evidence of PW4-postman, PW15- Commissioner of Tambaram Municipality and PW-16-CTO Tambaram Circle. The evidence of PW-6[Mr.Kanniappan] is not reliable since he has deposed in favour of the prosecution to save himself from the criminal case and civil liability for furnishing the property as collateral security.
14. The evidence of PW6 [Mr.K.Kanniappan] and PW7 [Mr.Govindasamy] and PW9 in respect of documents Exs.P9 to P12 have not been considered in proper perspective which will disprove the case of the prosecution that false and forged documents were dishonestly enclosed to avail the loan. While PW-18 admits creation of equitable mortgage of the property, the trial Court ought not to have held that equitable mortgage was created by impersonation. Since Sanatorium Branch was not notified to create equitable mortgage, the parties have gone to Anna Nagar Branch for creating equitable mortgage. This fact has been admitted by PW-2. While so, the trial Court should not have relied upon the vigilance report Ex.P48 prepared by PW-18. When the prosecution has failed to prove common intention, common design, conspiracy, meeting of mind etc., for fabrication of records, misappropriation, cheating by the appellant, the trial Court purely based on hypothetical material had convicted the appellant without taking note of the fact that the entire loan amount had been cleared pending trial. Hence, the trial Court judgment is liable to be set aside.
15. Above all, the trial Court ought to have given due consideration for the evidence of DW1 and DW3 who have categorically deposed that the entire loan amount arising out of the disputed VYAPARA Loan Scheme had been discharged by A2[Palanivel] and there is no material to prosecute the appellants any further.
16. T.N.Ravi[A6], who preferred Crl.A.No.268 of 2009 died pending appeal. Hence, the appeal is abated.
17. Per contra, learned Special Public Prosecutor for CBI Cases submitted that the prosecution has proved beyond doubt that A1[J.S.Prabhu] as Bank Manager failed to conduct pre-sanction inspection or post-sanction inspection regarding the loan sanctioned by him to non-existing firm, in connivance with A2[Palanivel]. The documents furnished along with loan applications are proved to be fabricated documents. The patta, chitta, encumbrance certificate were forged and fabricated by A3[Gunasekaran] with the help of other accused and rubber stamp maker PW-17[Mr.Panchacharam]. While A2[Palanivel] had impersonated himself as Ramasamy and Kannan to encash the cheque from the account of M/s Saravana Lathe Works. A4[Rathnavel] has impersonated as Kannippan the guarantor and had cheated the bank. The evidence of PW-4 [Mr.B.Abraham] postman of Tambaram Sanatorium Post office, PW-15[Mr.S.Mohan Kumar] Municipal Commissioner, Tambaram Municipality and PW-16[Mr.M.Abdul Karim] CTO incharge of Tambaram Assessment Circle-I go to show that there is no M/s Saravana Lathe Works in the said address and no license issued to Murugesan to run Lathe works. Thus, for non-existing firm, SSI certificate had been obtained. Loan has been issued based on fabricated documents and fake guarantor. The accused persons in pursuance to the conspiracy to cheat the bank had fabricated the documents and impersonated themselves as guarantor and proprietors of Hari Agency so as to siphon out the loan amount credited into the account of Murugesan Proprietor M/s Saravana Lathe Works. Having proved the case against the accused beyond doubt, the trial Court judgment has to be confirmed and these appeals are to be dismissed.
18. Heard the learned counsels for the respective appellants and the learned Special Public Prosecutor for CBI Cases. Records perused.
19. Points for consideration:
Whether the trial Court erred in appreciating the facts and evidence while holding the appellant guilty?
20. The trial Court, after considering the evidence let in by the prosecution and the defence, had framed 9 points for consideration and after due consideration and application of law, had held the accused guilty. On re-appreciation of the evidence, this Court finds that M/s Saravana Lathe Works No.80, GST Road, Tambaram, Sanatorium, is a non-existing firm and Murugesan [A5] had made a loan application [Ex.P27] with false information as if he is dealing with auto mobile spares since 15.02.1999 and he need working capital of Rs.3 lakhs for purchase of raw materials. He has shown one Kanniappan as guarantor and his property at Kizmudhachambedu village as collateral security. It is proved through hand writing expert that the signature of Kanniappan found in Ex.P27 is that of A2 [Palanivel]. The evidence of Municipal Commissioner as well as CTO with whom any industry has to obtain permission and license, had deposed before this Court that within their jurisdiction there is no industry by name M/s Saravana Lathe Works Proprietor Mr.Murugesan in Door No.80 GST Road, Tambaram, Sanatorium.
21. While so, the non-existing of firm M/s Saravana Lathe Works to which A1[J.S.Prabhu] has sanctioned the loan is proved beyond doubt. Had A1[J.S.Prabhu] honestly conducted pre-sanction inspection, he would have come to light about this non-existence. His failure to conduct pre-sanction inspection had led to sanction of loan in favour of Murugesan [A5]. The prosecution has examined PW4 [Mr.B.Abraham] postman of that area and also marked Ex.P7 the return registered cover addressed to Mr.Murugesan, Proprietor of M/s Saravana Lathe Works, Door No.80 GST Road, Tambaram so as to establish the non-existence of the said firm.
22. The trial Court has not merely relied on the evidence of PW4[Mr.B.Abraham] and returned cover [Ex.P7] to ensure the allegation of non-existence, the evidences of PW-15 and PW-16, which have been mentioned above, were also taken note by the trial Court to conclude that M/s Saravana Lathe Works does not exist in the given address.
23. As far as the documents accompanied with the loan application, they are proved to be forged documents through PW-6[Mr.K.Kanniappan] who has deposed that he approached one Meeran for loan of Rs.10,000/- , who in turn induced him to A3[Gunasekaran]. At the request of A3[Gunasekaran], who promised to arrange loan, PW-6 [Mr.K.Kanniappan] has handed over the sale deed [Ex.P9] and patta [Ex.P10] to Gunasekaran [A3]. After receiving these documents, A3[Gunasekaran] has given Rs.10,000/-. He has misappropriated these documents by making use of the documents given by PW-6[Mr.Kanniappan] as collateral security for the loan in the name of Murugesan. A3[Gunasekaran]by forging the signature of Kanniappan in the documents like loan application Ex.P27, Statement of Assets and Liabilities Exs.P32 and P33, Guarantee Agreement Ex.P19, Arbitration Agreement Ex.P20, Memorandum of deposit of title deed Ex.P21 had facilitated A1[J.S.Prabhu] to sanction loan. PW-6[Mr.K.Kanniappan] has categorically denied the signatures found in the above said exhibits as K.Kanniappan. The opinion of the hand writing expert [PW-21-Mr.Balusamy] reveals that A4[Rathnavel] has signed as Kanniappan in the column meant for guarantor in Ex.P27. Thus, impersonation of Kanniappan by A4 [Rathnavel] has been proved through the document as well as the person concerned [PW-6] and by the expert opinion.
24. As far as the amount which has been credited into the account of M/s Saravana Lathe Works, A5[Murugesan] had opened the account at the instance of A2[Palanivel], the money credited into that account, which had been siphoned through cheque [Ex.P21] in the name of Gunasekaran[A3] for Rs.72,000/-; Rs.50,000/- by Sri Hari Agencies through cheque [Ex.P39], another sum of Rs.40,000/- in the name of M.Ramasamy by A2[Palanivel] through cheque [Ex.P41], Rs.42,000/-in the name of K.Kannan by A2[Palanivel] through cheque marked as Ex.P25, Rs.20,000/- by Gunasekaran[A3] through cheque marked as Ex.P42, Rs.30,000/- by Murugesan[A5] through self-cheque marked as Ex.P43. Thus, through Exs.P233,25,39,40,41,42 and 43 the entire loan amount had been siphoned out and this fact had been proved through the statement of account, cheques and evidence of PW-10 Saravanan.
25. Further, PW7 [Mr.M.Govindasamy], Sub Registrar of Gummidipoondi has deposed that [Ex.P9] sale deed in favour of Mr.K.Kanniappan executed by S.Krishnan is a genuine document. Whereas, the encumbrance certificate marked as Ex.P13 was not issued by his office. The seals found in the documents are fake and not genuine seal of the Registrar Office. Further, on scrutinizing of Ex.P13 encumbrance certificate, PW7 [Mr.M.Govindasamy] has clarified that in the last paragraph of first page of the encumbrance certificate should be scored off and the Sub Registrar will put initial in it. Whereas, in Ex.P13, the last paragraph neither scored off nor initialled by the Sub Registrar. Further, the seal in Ex.P13 is not in black ink and for all these reasons, it is certainly a forged documents.
26. In the light of the evidence given by PW7[Mr.M.M.Govindasamy], the evidence of PW17[Mr.G.Panchacharam] is looked it, it could be clearly seen that A3[Gunasekaran] had prepared faked seal of Revenue Inspector and Tahsildar through PW-17[Mr.g.Panchacharam] and made use of those seals to prepare the encumbrance certificate. The valuation certificate marked as Ex.P37 issued by T.N.Ravi, valuer indicates that the property bearing S.No.309/8 at Kizmudhachambedu village, Thiruvallur, Gummidipundi Taluk, Thiruvallur District, is worth of Rs.3,58,875/- and it consists of 25 cents of land and building to the extent of 400 sq.ft. Whereas the evidence of PW-6[Mr. K.Kanniappan], who is the owner of the property proves that there is no building in the said land and he has not stood as guarantor for the said loan of M/s Saravana Lathe Works and the signatures perpetrated to be signed by him are not his signatures and the signature found in the deposition of PW-6[Mr.Kanniappan], on perusal of nake eye, are not similar to that of the signatures found in Exs.P15 to 21.
27. Thus, the prosecution has clinchingly proved through witnesses that loan application Ex.P27 accompanying with the documents such as valuation certificate, guarantee deed, memorandum of deposit of title deed, arbitration agreement all fabricated documents containing forged signature of Kanniappan. Without building in the land given as collateral security, deceased T.N.Ravi Valuer [A6] had given inflated valuation certificate which has been used as genuine for sanctioning the loan of Rs.3 lakhs to M/s Saravana Lathe Works. The sale deed Ex.P9, patta Ex.P10, chitta Ex.P11, Adangal Ex.P12 were fraudulently obtained from Mr.K.Kanniappan[PW-6] on misrepresentation by A3[Gunasekaran]. The said documents had been made use as collateral security without the knowledge and consent of PW-6 to avail loan along with the forged encumbrance certificate [Ex.P13], house tax receipt [Ex.P14], inflated valuation certificate [Ex.P37] issued by TN Ravi(deceased), thereby A3[Gunasekaran] is found guilty of forging documents with the help of fake rubber stamp seal manufactured by PW17[Mr.G.Panchacharam] and also by fraudulently obtaining the documents of Mr.K.Kanniappan and making false promise and using it for criminal act of cheating. A2[Palanivel] being the mastermind behind the crime of conspiracy and cheating had prompted Mr.Murugesan to open the bank account with the help of Visvakarma a friend of A2[Palanivel], who has signed the account opening application as introducer. A2[Palanivel] had got the title deed of Kanniappan through A3[Gunasekaran], forged signature of Kanniappan in the loan application form Ex.P27 and other documents through A4[Rathnavel], after sanctioning the loan in the account of M/s Saravana Lathe Works, the money has been siphoned out by A2[Palanivel] by diverting the money into the account of Sri Hari Agencies a fake company run by two fictitious person by name, Ramasamy and Kannan. Thus, the entire loan money has been siphoned out through cheques which are marked as Exs.P21, 25, 39, 40, 41, and 42. Under Exs.P40 and P43 Murugesan himself as withdrawn Rs.40,000/-, Rs.30,000/- respectively through self-cheques. After cheating the bank by availing the loan, based on fake documents, the borrower/Proprietor Murugesan has not repaid the loan amount.
28. From the evidence of DW1[Mr.S.Jaganathan] and DW3[Mr.Davis Jose Koola], this Court finds that after launching criminal prosecution and initiating SARFEASI proceedings this loan and other loans sanctioned by A1[J.S.Prabhu] in connivance with A2[Palanivel] with the help of A3[Gunasekaran] had settled by A2[Palanivel] under the One Time Settlement Scheme (OTS Scheme). Though the total amount borrowed and due was more than Rs.20 lakhs, under One Time Settlement(OTS Scheme), lesser amount has been paid by A2[Palanivel] towards full quit and settlement. In any event, it is not the case of cheating simplicitor, but it is coupled with forging revenue documents and impersonation. Therefore, the settlement of dues after initiating coercive measure like criminal prosecution and SARFEASI action. The judgment cited by the appellant for lenient consideration does not apply to the facts of the present case. Based on the overwhelming evidence produced by the prosecution, the trial Court has convicted the appellant for the proved charges and this Court finds no error in the judgment of the trial Court to interfere with. Hence, the Judgment of conviction dated 19.05.2009 made in C.C.No.66 of 2004 passed by Learned XI Additional Judge for CBI Cases, Chennai is hereby confirmed.
29. However taking note of the fact that the loan amount has been discharged subsequently by A2[Palanivel] under one time settlement, which shall mitigate the rigorous of sentence. Therefore, the period of imprisonment is modified as under:
Rank of the accused Convicted by the trial Court under Section Sentence imposed by the trial Court Sentence modified by this Court A1 to A6 Under Sections 120-B r/w 420, IPC, under Section 5(2) r/w 5(1)(d) of PC Act, 1947 and Section 13(2) r/w 13(1)(d) of PC Act, 1988 Each of them to undergo RI for 2 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months Remains unaltered A5 Under Section 420 IPC To undergo RI for 4 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months To undergo RI for 2 years. No change in the fine imposed by the trial Court. A6 Under Sections 467 IPC and 467 r/w 471 IPC each To undergo RI for 4 years each and to pay a fine of Rs.5,000/- i/ d to undergo RI for 6 months To undergo RI for 2 years each. No change in the fine imposed by the trial Court. A3 Under Sections 406, 467, 467 r/w 471 IPC To undergo RI for 4 years each and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months To undergo RI for 2 years each. No change in the fine imposed by the trial Court. A2
1.Under Section 419 IPC
2.Under Section 467 IPC, 467 r/w 471 IPC each
1.To undergo RI for 3 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months
2.To undergo RI for 4 years each and to pay a fine of Rs.5000/- in default to undergo 6 months (1)To undergo RI for 2 years. No change in the fine imposed by the trial Court.
(2)To undergo RI for 2 years each. No change in the fine imposed by the trial Court.
A4 Under Section 419 IPC To undergo RI for 3 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months To undergo RI for 2 years. No change in the fine imposed by the trial Court.
A1 Under Section 13(2) r/w 13(1)(d) of PC Act, 1988 To undergo RI for 2 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months Remains unaltered
30. The sentence imposed by this Court shall run concurrently. So far as the accused viz., A1[J.S.Prabhu, A2[Palanivel] and A3[Gunasekaran] and A4[Rathnavel] are concerned, the sentences imposed on them in CC.No.61 of 2004 shall run concurrently along with the sentence imposed in this case(C.C.No.66 of 2004). The period of imprisonment already undergone is ordered to be set off under Section 427Cr.P.C.
31. In the result, with the above modification, these Criminal Appeals are disposed of.
23.01.2018 speaking/non speaking Index:Yes Internet:Yes/No ari To
1.The Learned XI Additional Judge for CBI Cases, Chennai.
2.The Inspector of Police, SPE, CBI, ACB, Chennai.
3.The Inspector of Police, Special Police Establishment Central Bureau of Investigation Anti-Corruption Branch 3rd Floor, Shastri Bhavan Haddows Road, Nungambakkam, Chennai 600 006.
4.The Special Public Prosecutor (CBI Cases), High Court, Madras.
DR.G.JAYACHANDRAN.J, ari Pre-delivery Judgment made in Crl.A.Nos.258, 265, 281 287 & 301/2009 23.01.2018