Madras High Court
N.C.Prabhu vs State Rep. By on 11 October, 2017
Author: G.Jayachandran
Bench: G.Jayachandran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 19.09.2017 PRONOUNCED ON : 11.10.2017 CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Criminal Appeal Nos.504, 518 & 559 of 2010 N.C.Prabhu .. Appellant in Crl.A.No.504/2010/A.4 R.Anantharaman .. Appellant in Crl.A.No.518/2010/A.1 R.K.Kannan .. Appellant in Crl.A.No.559/2010/A.2 Vs State rep. By The Inspector of Police, Central Bureau of Investigation, Special Police Establishment, Anti Corruption Branch, Shastri Bhavan, 3rd Floor, Haddows Road, Chennai 600 006.
.. Respondent in all Crl.As Prayer:- Criminal Appeal filed under Section 374 to set aside the conviction and sentence imposed upon the appellants on 12.08.2010 by the learned XI Additional Judge for C.B.I cases, Chennai.
Crl.A.No.504 of 2010:-
For Appellant : Mr.V.Krishnamoorthy
For Respondent : Mr.K.Srinivasan,
Special Public Prosecutor (CBI cases)
Crl.A.No.518 of 2010:-
For Appellant : Mr.S.Ashok kumar, Senior Counsel for
Mr.A.Sasidharan
For Respondent : Mr.K.Srinivasan,
Special Public Prosecutor (CBI cases)
Crl.A.No.559 of 2010:-
For Appellant : Mr.V.S.Venkatesh
Mr.A.Sasidharan
For Respondent : Mr.K.Srinivasan,
Special Public Prosecutor (CBI cases)
COMMON JUDGEMENT
These three criminal appeals are filed against the judgment of convicition and sentence passed in C.C.No.54/2003 dated 12.08.2010 on the file of the learned XI Additional Special Judge for CBI, cases, Chennai. The first accused - Mr.R.Anantharaman is the appellant in Crl.ANo.518/2010. The second accused - Mr.R.K.Kannan is the appellant in Crl.A.No.559/2010. The fourth accused - Mr.N.C.Prabu is the appellant in Crl.A.No.504/2010.
2.Based on the reliable information, the Central Bureau of Investigation, registered F.I.R., on 28.12.2001 against 1)Mr.Anantharaman, Clerk, State Bank of India, Teynampet Branch, Chennai, 2)Mr.S.Venkatesan and 3)Mr.R.K.Kannan. One of the accused turned as Approver and assisted the investigation. After obtaining the sanction to prosecute Mr.Anantharaman, a 'public servant', the final report was filed on 03.09.2003 arraying him as A-1; Mr.R.K.Kannan ( private individual) A-2; Mr.N.Hemkumar (Private individual) A-3; Mr.N.C.Prabu (private individual) A-4; Mr.J.C.Joseph (died) and Mr.S.Venkatesan (Approver) were shown under column (2) as accused not sent up for trial.
3.The case against the appellants, in short is that, in the year 2001 between July and December, pursuance to the conspiracy hatched by the accused persons, one Mr.J.C.Joseph (deceased) while employed in M/s.Thomas Oakes Ltd, Chennai, had stolen 9 cheques of his company account maintained with the Central Bank of India, Corporate Finance Branch, Chennai. Forged the signature of his Managing Director through another employee by name Mr.Hemkumar (A-3). Encashed those forged cheques through Mr.Anatharaman (A-1); Mr.R.K.Kannan(A-2) and Mr.N.C.Prabu (A-4). Thus, fraudulently cheated the company by forging the signature and filing up the 9 stolen cheques for various sum totally to the tune of Rs.1,07, 35,908.30/- (Rupees one crore seven lakhs thirtyfive thousand and thirty paise only) and withdrawn the money.
4.As masterminded by A-1, One of the forged cheque was deposited into the dormant Current Account of M/s.Balamurgan Electricals - Proprietor of Mr.L.Adhikesavan at State Bank of India, Tyenampet Branch, Chennai, 3 cheques were deposited in the Current Accounts opened in the name of M/s.Rajnee Brake Lining Industries, Indian Bank, Santhome Branch and one cheque into the account of M/s.Rajnee Brake Lining Industries, State Bank of Indore, Koyembedu Branch, showing Mr.S.Venkatesan (Approver) as its proprietor and 4 cheques were deposited into the account of M/s.Trustworth Brake Linings, Canara Bank, Mylapore Branch showing Mr.R.K.Kannan ( A-2) as proprietor. Later, the amount deposited into these accounts were withdrawn either by self cheques or through third parties cheques or for purchase of demand drafts. After encashing entire money, those accounts were closed by the account holders.
5.The trial court took cognizance, and framed the following charges:-
Against A-1 to A- 4 : under Section 120 B r/w 420, 468, 468 r/w 471 IPC and section 13(2) r/w 13(1)(d) of Prevention of corruption Act, 1988., Section 420 IPC and Section 468 r/w 471 IPC.
Against A-3: under section 468 IPC and Against A-1: under section 13(2) r/w 13(1)(d) of Prevention of corruption Act, 1988.
6.The prosecution examined 55 witnesses, marked 211 exhibits and 4 material objects to prove the charges. On behalf of the defence, 3 witnesses and 6 documents were marked.
7.The prosecution case as unfolded through the witnesses reveal that Rs.1,07, 35,908. 30/- ( Rupees one crore seven lakhs thirtyfive thousand and thirty paise only) were withdrawn from the current account of M/s.George Oakes Limited maintained at Central Bank of India, Corporate Finance Branch, Chennai, through 9 cheques as detaileed under:
Sl.No Cheque No. Date Amount Rs.
Deposited into the account of : Name/Bank 1 317987 31.07.2001 6,72,353.45/-
M/s.Balamurugan Electricals, Chennai/SBI Teynampet Branch, Chennai.
2322049 16.08.2001 9,42,989.84/-
M/s.Rajanee Brake Lining Industries/Indian Bank, Santhome Branch, Chennai 4.
3322284 30.08.2001 12,25,192.35/-
M/s.Rajanee Brake Lining Industries/Indian Bank, Santhome Branch, Chennai 4.
4322229 31.08.2001 12,12,398.76/-
M/s.Rajanee Brake Lining Industries/Indian Bank, Santhome Branch, Chennai 4.
5322048 23.08.2001 10,80,449.76/-
M/s.Trustworth Brake Linings/Canara Bank, Mylapore Branch, Chennai 4 6 322274 28.08.2001 14,85,396.35/-
M/s.Trustworth Brake Linings/Canara Bank, Mylapore Branch, Chennai 4 7 322328 15.09.2001 10,45,396.25/-
M/s.Trustworth Brake Linings/Canara Bank, Mylapore Branch, Chennai 4 8 322721 11.10.2001 14,75,895.26/-
M/s.Trustworth Brake Linings/Canara Bank, Mylapore Branch, Chennai 4 9 322978 29.10.2001 15,95,836.28/-
M/s.Rajanee Brake Lining Industries, State Bank of Indore, Koyambedu Branch, Chennai
8.Mr.Sambasiva Rao ( PW-8) Assistant Accountant of M/s.George Oakes Limited has deposed that his company has no dealing with M/s.Balamurugan Electricals, M/s.Rajnee Brakes Limited and M/s.Trustworth Brake Linings and no cheques were issued in favour of these companies. Mr.P.S.K.Chari (PW-28), the Managing Director of M/s.George Oakes Limited has deposed that as Managing Director, he is the authorised signatory for cheques above Rs.50,000/-. His company have no dealing with the above three companies and he has not issued any cheques in favour of those companies. His auditor informed him that 9 cheques mentioned in the statement of accounts were not issued by M/s.George Oakes Limited. No entry regarding these nine cheques were found in the books of account maintained by M/s.George Oakes Limited. This was brought to the notice of the police.
9.The cheque referred in serial number 1 of the above table is Central Bank of India Cheque No. 065187 dated 31.07.2001 issued by M/s.George Oakes Limited in favour of M/s Balamurgan Electricals, Chennai for Rs.6,72,353.45 was credited in the account of M/s. Balamurgan Electricals maintained with State Bank of India, Tyenampet, Chennai, represented by Mr.L.Athikesavan. The above said amount was withdrawn through four cheques dated 01.08.2001 for a sum of Rs. 1,75,000/-, Rs 2,50,000/-, Rs 1,75,000/- and Rs.72,000/-. Except one cheque for Rs. 1,75,000/- issued in favour of Mr.M.Soundarapandian (PW-11), the other three cheques are self cheques. Through Ex P-3, the certified copy of the current account statement of account in A/C No.065187 in the name of M/s. Balamurugan Electricals, the above transactions are proved.
10.According to PW-10 Mr.L.Athikesavan, Proprietor of M/s.Balamurugan Electricals, as a customer, he know A-1 who was serving as Clerk in SBI, Teynampet Branch, Chennai. He requested A-1, a loan for Rs. 50,000/-. A-1 gave Rs. 30,000/-. For which, he gave 4 signed cheque leaves to A-1. He is not aware of any deposit into his account or the withdrawal of the same through the 4 cheques given by him to A-1.
11.According to PW-11 Mr.M.Soundarapandian, once A-1 told him that he is not well and reqested him to draw Rs.10,000/- from the bank and gave a cheque, he presented a cheque given by A-1, collected the money and gave it to A-1.
12.Three cheques, referred in serial numbers 2,3 and 4 in the above table were credited into the current account No.676 of Indian Bank, Santhome Branch, Chennai, opened on 01.08.2001 by Mr.S.Venkatesan - (PW-3) in the name of M/s.Rajnee Brake Lining Industries. Later, the money has been withdrawn on various dates. Exs.P-6 to P.19 are the account opening form, challans, pay-in-slips, vouchers and cheques pertaining to deposits and withdrawal from the said account.
13. The cheque referred in serial number 9 in the above table was credited into the current account No.20, State Bank of Indore, Koyembedu Branch, Chennai, on 17.09.2001 by Mr.S.Venkatesan (PW-3) in the name of M/s.Rajnee brake Lining Industries. From out of the money credited into this account two demand drafts were purchased in favour of R.Anatharaman ( A-1) for Rs. 5,00,000/- each payable at State Bank of Indore, Bangalore. Exs. P-20 to P-26 are the account opening form, pay-in-slips and cheques pertaining to deposits and withdrawal. Exs.P-68 and P-69 are the two demand drafts for Rs 5,00,000/- each payable to R.Anatharaman (A-1).
14.PW-3, an accomplice to the crime has given a confession statement marked as Ex.P-27. He was tendered pardon by the Magistrate under Ex.P-211. PW-3 has deposed about his role and the role of A-1 in encashing the forged cheques by opening bank accounts in the name of M/s.Rajnee Brake Lining Industries at Indian Bank, Santhome branch and State Bank of Indore, Koyembedu Branch. This witness has also identifed M.O-1 cell phone given to him by A-1 and M.O.2 (series) Indian currency of Rs.23,500/- given to him by A-1 while closing the State Bank of Indore account.
15.Four Cheques referred in serial numbers 5 to 8 in the above table, were credited into the current of M/s.Trustworth Brake Linings opened by Mr.R.K.Kannan (A-2) on 21.08.2001 at Canara Bank, Mylapore Branch. The money so credited were withdrawn subseqently by A-2 through self cheques and third parties cheque. Later, the account was closed on 13.11.2001. The credit and debit transactions in the above account worth around rupees one crore by A-2 is proved through Ex.P.192, the statement of account in the name of M/s.Trustworth Brake Linings. Supplemented by Exs.P-150 to P-153 which are pay-in-slips for the deposit of high value cheques referred above and Exs.P-154 to P-191 cheques issued for withdrawals.
16.The prosecution were not able to recover the original cheques purported to have been forged. The hand writing expert Mr.Ravi examined as PW-52 in his report marked as Ex.P-200 has opined that the writings found in Ex.P-4 credit voucher dated 30.07.2001 for Rs.6,72,253.45 for deposit of cheque (referred in serial number 1 of the above table) into the account of M/s.Balamurugan Electicals and the writing in Ex.P-5 voucher for Rs.353.30/- is that of A-1. He could not give any positive opinion with regard to other disputed writings and signatures. In his deposition, he has reiterated his opinion as found in Ex.P-200.
17.The deposition of PW-35 and PW-36, the fact that A-4 has signed as one of the witness to Ex P-193, the sale deed executed by PW-36 in favour of J..C.Joseph (deceased- accused) along A-2 were relied by the prosecution to prove the participation of A-4 in the crime and his proximity with other conspirators.
18.The trial court, acquitted A-3 of all charges for want of evidence to prove his involvement in the crime. In respect of accused A-1, A-2 and A-4, the trial court, held them not guilty of charge under section 120B r/w 468 IPC but, found them guilty of charges under section 120B r/w 420, 468 r/w 471 IPC and Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, Section 420 and 468 r/w 471 IPC.
19.The contention of the appellants:
R.S.Ashok kumar, learned Senior Counsel appearing for the appellant in Crl.A.No.518/2010 (A.1) would submit that, the conspiracy theory projected by the prosecution consists of three parts. First part, theft of 9 cheques from M/s.George Oakes Limited by Mr.J.C.Joseph, Assistant Accountant. Second part, forgery of Mr.P.S.K.Chari signature by Mr.Hemkumar, an employee of M/s.George Oakes Limited who was acquainted with the signature of his Mananging Director Mr.P.S.K.Chari and the third part is the encashment of those cheques through the accounts of M/s.Balamurugan Electricals, M/s.Rajnee Brake Lining Industries and M/s.Trustworthy Brake Lining. Though the chargesheet was filed on those lines, none of the accused were tried for theft, the alleged forgery by Mr.Hemkumar (A-3) found not proved and he was acquitted for all charges. While so, the first accused though employed as a Clerk in the Tyenampet branch of State Bank of India, the evidence let in by the proseuction has not indicated anything regarding abuse of his official position or anything with discharge of his duty. The required ingredient to charge a public servant under section 13 (1)(d) of the Prevention of corruption Act, is totally absent in this case. Above all, except PW-3 - Mr.Venkatesan, the accused turned Approver, and PW-10, no other witnesses speak about the role of A-1 in the crime. The failure to follow the procedure before granting pardon to the Approver and non-disclosure of truth and complete facts by the Approver renders his testimony unreliable and suspicious.
20.Above all, there is no piece of evidence to indicate that there was pre-meeting of mind between the accused and they conspired to commit the crime, as alleged by the prosecution. Even according to the prosecution, out of nine incidences of encashment of cheques, only 5 incidences are alleged to have been done by A-1. The rest of the 4 incidences of encashment has been independently committed by Mr.J.C.Joseph through Mr.R.K.Kannan A-2 and Mr.N.C.Prabu A-4 .
21.If the cheques were presented with forged signatures, the prime responsiblity is upon the Central bank of India, to verify the authencity and return the cheque on the ground that 'signatue does not tally'. Strangely, none of the bank officials who are responsible for honouring the forged cheques were prosecuted for the alleged lapse. The original cheques alleged to have contain the forged signatures of Mr.P.S.K.Chari were not recovered and produced before the Court.
22.P.W-28 Mr.P.S.K.Chari has deposed that he gave complaint to the Police about the theft of cheques and encashment immediately after his Auditor informed him about it. The said complaint is not seen the light of the day. As per the First Information Report, dated 28.12.2001, registered by CBI, it appears to be a suo-motu complaint based on reliable information and not on the complaint by the aggrieved M/s.George Oakes Limited. Whereas, the testimony of the Approver - PW-3 reveals that he went to CBI office on 07.12.2001 with his Lawyer and informed about the crime and requested them to take action. Contrarily, the Investigating officer - PW-53 Mr.Billi Chirstodoss has denied in his cross examination about the alleged visit of PW-3 to CBI office and informing the CBI about the ocurrence of crime. These discripancies and lacunae in the prosecution case makes the case of the CBI doubtful.
23.The evidence show that the cheques deposited in the accounts were withdrawn by the respective account holders. PW-3 admit that he opened bank accounts in the name of M/s.Rajnee Brakes Lining in the Indian Bank, Santhome Branch and State Bank of Indore, Koyembedu Branch deposited 3 cheques in Indian Bank and one cheque in State Bank of Indore. There is no evidence that the money so deposited was withdrawn by A-1, except the exculpatory statement of PW-3 that he withdrew the money as per the instruction of A-1 and gave it to him as cash or demand drafts. The evidence of the Approver cannot be a base for conviction without corroboration.
24.To lend support to his submissions, the Learned Senior counsel also relied upon the dictum laid by the Hon'ble Apex Court, in the following cases:-
(i)In Lal Chand and v. State of Haryana (1984 (1) SCC 686);
(ii)In Balwant Kaur v. U.T of Chandigarh (1988 (1) SCC 1);
(iii)In K.T.M.S.Mohd. v. Union of India (1992 (3) SCC 178);
(iv)In A.Devendran v. State of T.N (1997 (11) SCC 720);
(v)In Balbir v. State of Haryana (2000 (1) SCC 285) and
(vi)In Narayan Chetanram Chaudhary v. State of Maharashtra 2000 (8) SCC 457.
25.Per contra, the learned Special Public Prosecutor (CBI cases) appearing for the respondent submitted that the case of the prosecution, has well found through the witnesses marshaled, on its behind. A.1 - as a Clerk, in the State Bank of India, Teynampet Branch, has abused his office by depositing one of the stolen cheque in the account of Mr.L.Adhikesavan (P.W.10) Proprietor of M/s.Balamurugan Electricals. The said account was dormant. Taking advantage of his acquaintance with Mr.L.Adhikesavan (P.W.10), he has collected four cheques from Mr.L.Adhikesavan (P.W.10) and encashed the forged cheque through the cheques collected from Mr.L.Adhikesavan (P.W.10). As a Clerk of State Bank of India, Teynampet Branch, his access to the account of Mr.L.Adhikesavan (P.W.10), the pay in slip and the withdrawal vouchers are proved to be in the hands of A.1 through the handwriting expert opinion. Therefore, nothing wrong in prosecuting the appellant/A.1 for misconduct under Section 13(1)(d) of the Prevention of Corruption Act.
26.Regarding the pardon accorded to P.W.3, the learned Special Public Prosecutor (CBI cases) appearing for the respondent submitted that there is no procedural error in granting pardon to P.W.3. The learned Chief Judicial Magistrate (P.W.55) is empowered to grant pardon in this case. He has applied his mind, examined witnesses and granted pardon to P.W.3 after explaining the legal position to the Approver.
27.The judgment relied by the appellant/A.1 in support questioning the validity of granting pardon to the Approver factually have no application to the present case since in A.Devendran v. State of T.N case (cited supra), the Approver was granted pardon has not even examined.
28.In Suresh Chandra, Bhari v. State of Bihar (1995 SCC (cri) 60) in paragraph No.42, it has been held as follows:-
42.................The dominant object is that the offenders of the heinous and grave offences do not go unpunished, the Legislature in its wisdom considered it necessary to introduce this section and confine its operation to cases mentioned in Section 306 of the Code. The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence.
29.Bearing in mind the aforesaid principle and going through the evidence of Approver, it is clear that but for the evidence of P.W.3, the culpability of A.1 could not have come to light. The bank account of A.1 clearly indicates that huge money has been deposited in his account during the relevant point of time and he has diverted the money by way of fixed deposit and demand drafts. The two demand drafts for Rs.5 lakhs each purchased in the name of this appellant/A.1 from the account of P.W.3 maintained in the State Bank of Indore Branch, Koyambedu, is a clear indication and proof of the fact that the appellant/A.1 has swindled the money of M/s.George works Limited, through forged cheques.
30.Finding:-
Conspiracy are always hatched in secrecy and it can be proved only through the circumstantial evidence. In this case, though the prosecution has failed to impress upon the trial Court regarding forgery by A.3, the fact remains that nearly Rs.1 crore 7 lakhs being swindled out from M/s.George Oakes Limited, account. The ultimate beneficiary happened to be A.1, A.2 and A.4, as per the records and witnesses.
31.The conspiracy consist of agreement to commit an offence. It is not necessary that all the conspirators must know each and every details of the conspiracy. The unity of object is the requirement and not plurality of means. In this case, the appellant-A.1 being a person conversant with banking procedure, know how the stolen cheques can be forged and encashed. He has successfully encashed one cheque through existing account of M/s.Balamurugan Electricals. In respect of rest of the cheques, new accounts were opened and high value cheques were deposited in those new accounts, later, withdrawn through withdrawal sllips, cheques and by purchase of demand drafts. Uniformly, all the four accounts were closed. After swindling out the entire money. Therefore, acquitting A.3 for want of proof cannot be a reason to disbelieve the entire case of the prosecution as against the other accused, when the overwhelming evidence establishes the factum of swindling the money by A.1, A.2 and A.4. There is no error in the charge, as it is framed. The appellants/accused have not shown any piece of material to show to indicate that they were prejudiced by any error in the manner in which they were charged. The plea raised by the appellants counsel is unsustainable.
32.The broad spectrum of prosecution evidence covers the scheme of conspiracy entered into between the accused and other named persons who were not tried. The evidence clearly establishes the fact that a some of Rs.1,07, 35,908.30/- from M/s.George Oakes Limited Account maintained in Central Bank of India, Corporate Finance Branch, Chennai, has been withdrawn through the cheques which is tabulated in the earlier part of this judgment. Those nine cheques were not issued by M/s.George Oakes Limited for any commercial transaction with the respective payee. P.W.8 and P.W.28, have categorically stated that M/s.George Oakes Limited had no transaction with these three companies. There is a strong indication against Mr.J.C.Joseph, Assistant Accountant of M/s.George Oakes Limited and his co employee, Mr.Hemkumar A.3 had stolen the cheques and forged the same.
33.The prosecution has failed to prove the theft of cheques and forgery of the same. This cannot be taken into advantage by the appellants herein alleging that the chain in the conspiracy has broken or link in the chain has not been established by the prosecution for the very simple fact that the account holders who have deposited the cheques and encashed it later are bound to explain how such an huge amount has been landed into their accounts.
34.P.W.3, who is an account holder of M/s.Rajanee Brake Lining Industries, has given an explanation how accused had made use of his un-employment and promised him to offer job, thereby prompted him to open bank account at Indian Bank, Santhome and State Bank of Indore, Koyambedu. Even if the evidence of P.W.3 that he has withdrawn money and given the cash to A.1, is not proved through any other corroborative evidence, the fact, two demand drafts marked as Exs.P.68 and P.69 were purchased in the name of Mr.R.Anantharaman A.1 is an undisputed fact. These two demand drafts had been encashed by A.1 through bank account maintained by him in State Bank of Indore, Bangalore Branch. The chain of deposit in the account, withdrawal from the said account and re-deposited in different account are all well proved through the bank accounts and documents. When P.W.8 and P.W.28 have categorically stated that cheques were stolen and they never issued these cheques as a beneficiary of those forged cheques, P.W.3 and A.1 and Mr.L.Adhikeseven (P.W.10) are bound to explain how those cheques came into their account like a person who is in possession of stolen property. As illustrated in Section 114 (a) of the Indian Evidence Act, the Court may presume, that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
35.Regarding A.2, apart from submission made by the learned counsel for the first appellant, also contended that A.2 is an innocent name lender who was allured by A.4 (N.C.Prabhu) promising architect work and forced to open bank account in the name of M/s.Trust Worth Brake Lining. He is not the beneficiary of the crime and he never had any mens rea for committing the crime.
36.The learned Special Public Prosecutor submitted that Ex.150 to 153 deposited in the name of A.2 Kannan maintained in Canara Bank, Exs.154 to 191 and withdrawal slips. These documents clearly show the active participation of A.2 in the crime, substantial amount deposited in his account vide P.150 and 153 had been utilized by A.2 and he cannot now plead that he is an innocent name lender and no beneficiary of the crime.
37.The learned counsel for A.4 submitted that except the deposition of P.W.35 and 36, there is no other incriminating materials against the appellant. Hence, apart from sufficient submissions made by learned counsel for A.1, the only evidence spoken by P.W.35 and 36 both being unworthy witness, the trial Court ought not to have convicted A.4.
38.P.W.36, is the wife of A.2. In her deposition, she has stated that her husband A.2 was asked to open a bank account by A.4 in the name of Trust Worthy. Initially, her husband refused to do so but later, her husband got a phone call from Srinivasan and thereafter, he agreed to open new bank account in a fictious name M/s.Trust Worth Brake Linings. The very nature of her evidence trying to esculpate her husband neither help A.2 to establish his innocence nor fix A.4 his culpability in the crime.
39.On a cumulative assessment of evidence placed by the prosecution, though there are some lacuna in the prosecution, like failure to secure the original cheque leaves failure to prove who has forged the cheque, failure to find out whether there was anybody else apart from the accused persons involved in the crime for the theft of cheque as well as the encashment of cheque with forged signature. The fact that these 9 cheques were encashed and benefited by A.1, A.2 and others, is clearly established. Though persons who are categorise under the head others in the final report are not before the Court or that will not exonerate A.1 and A.2 from the proved criminality of A.1.
40.In so far as A.4/N.C.Prabhu (Appellant in Crl.A.No.504 of 2010) is concerned, it is the evidence of P.W.35 and P.W.36, who speak about his presence during withdrawal of money from the account of A.2. This cannot be sufficient to hold him guilty may be A.4 was clever enough in pursue A.2 to open account in the name of M/s.Trust worth Brake Linking and to use the new account to encash four forged cheques. Except the sale deed marked as Ex.P.200 where A.2 and A.4 has witnessed, there is no other material evidence to show the proximity between A.2 and A.4 in the fraudulent act of depositing forged documents and being withdrawn subsequently. Hence, this Court finds that the evidence against A.4 is weak and insufficient to convict him for the offence charged. Whereas, the overwhelming evidence against A.1 (R.Anantharaman) and A.2 (R.K.Kannan) is sufficient to convict them and rightly been convicted by the trial Court. Hence, there is no necessity to interfere the judgment of the trial Court in respect of A.1 and A.2.
41.For the above said reasons, the judgment of conviction and sentence as against A.1 and A.2 is confirmed and as against A.4 is set aside for want of evidence.
42.In the result, Crl.A.No.518 of 2010 (R.Anantharaman/A.1) and Crl.A.No.559 of 2010 (R.K.Kannan/A.2) are dismissed. Crl.A.No.504 of 2010 (N.C.Prabhu/A.4) is allowed. The appellant in Crl.A.No.518 of 2010 (R.Anantharaman/A.1) and Crl.A.No.559 of 2010 (R.K.Kannan/A.2) shall surrender before the trial Court within a period of two months from today to undergo the remaining period of sentence failing which, the respondent Police shall secure them and remand them to custody.
11.10.2017 jbm Index: Yes Speaking Order/non speaking order To
1.The XI Additional Judge for C.B.I cases, Chennai.
2.The Inspector of Police, Central Bureau of Investigation, Special Police Establishment, Anti Corruption Branch, Shastri Bhavan, 3rd Floor, Haddows Road, Chennai 600 006.
3.The Special Public Prosecutor (CBI cases), High Court, Madras.
G.JAYACHANDRAN.J., jbm Common Judgment made in Criminal Appeal Nos.504, 518 & 559 of 2010 11.10.2017