Karnataka High Court
Sri. Umaprasad Kittappa @ K Umaprasad vs Central Bureau Of Investigation on 21 January, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:2585
CRL.A No. 835 of 2011
C/W CRL.A No. 752 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 835 OF 2011
C/W
CRIMINAL APPEAL NO. 752 OF 2011
IN CRL.A No. 835/2011
BETWEEN:
SRI. UMAPRASAD KITTAPPA @
K. UMAPRASAD,
S/O LATE K.N. KITTAPPA,
AGED 46 YEARS,
AT PRESENT R/O NO. 458,
12TH CROSS, KUMARAPPA NAGAR,
HASSAN - 573 201.
ALSO AT NO.90, 6TH MAIN,
SHAKAR NAGAR,
MAHALAKHSMI LAYOUT, BANGALORE - 560 086.
Digitally
signed by ...APPELLANT
MALATESH (BY SRI. B B SAGAR, ADVOCATE)
KC
Location: AND:
HIGH
COURT OF CENTRAL BUREAU OF INVESTIGATION,
KARNATAKA GANDHINAGAR,
BANGALORE.
...RESPONDENT
(BY SRI. P PRASANNA KUMAR, ADVOCATE)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DT:29.6.11 PASSED BY THE XXI
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CRL.A No. 835 of 2011
C/W CRL.A No. 752 of 2011
ADDL.C.C. AND S.J., AND SPL.JUDGE FOR CBI CASES,
BANGALORE IN SPL.CC.NO.195/1999 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 120-B AND 420
IPC.
IN CRL.A NO. 752/2011
BETWEEN:
SRI.SHIVA KUMAR,
S/O SRI.K.S.MARIMUTHU PILLAI,
AGED ABOUT 40 YEARS,
RESIDING AT NO.256,
NEAR MARUTHI FLOOR MILL,
VENKATA SWAMY LAYOUT,
SUBBANNAPALYA,
BANGALORE - 33.
...APPELLANT
(BY SRI. B B SAGAR, ADVOCATE)
AND:
STATE BY CBI/ACB,
BANGALORE.
...RESPONDENT
(BY SRI. P PRASANNA KUMAR, ADVOCATE)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DT:29.6.11 PASSED BY THE XXI
ADDL.C.C. AND S.J., AND SPL.JUDGE FOR CBI CASES,
BANGALORE IN SPL.CC.NO.195/1999 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 120-B AND
420 IPC.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 835 of 2011
C/W CRL.A No. 752 of 2011
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri B.B. Sagar, learned counsel for the appellant and Sri P. Prasanna Kumar, learned counsel for the respondent, in both matters.
2. These two appeals are filed by accused No.2- Umaprasad Kittappa @ Umaprasad and accused No.3- Shiva Kumar respectively, challenging the order of conviction passed by the XXI Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore (CCC-4) in Spl.C.C.No.195/1999 dated 29.06.2011, whereby the appellants/accused were convicted for the offence punishable under Section 420 read with 120B of IPC and ordered to undergo simple imprisonment for a period of 3 years and to pay a fine of Rs.70,000/- in all each of the appellants.
3. Accused No.1 has also filed an appeal in CRl.A.No.717/2011. Said appeal is disconnected from -4- NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 these two appeals to be dealt with separately, as appellant in the said appeal died.
4. Brief facts of the case which are utmost necessary for the disposal of these two appeals are as under:
4.1. Between the period of August 1995 and October 1997, the appellant in Crl.A.No.717/2011-Mahadevappa @ Mahadevappa Avina discharging the function of public servant in the capacity of Manager of Andhra Bank, Credit Card Division (CCD) Bangalore. While so discharging his function as Manager, he conspired with the present appellants, who are the employees of Hotel Windsor Manor and Hotel Le Meridian, Bangalore, respectively, with an intention to cheat the Andhra Bank in the matter of illegal diversions of charge slips in respect of amounts pertaining to those hotels. In furtherance of such conspiracy, accused No.1 abused his official position and with dishonest and fraudulent intention, induced Andhra Bank, CCD, Bangalore, to illegally divert the charge slips amounts -5- NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 pertaining to those hotels in credit card numbers 4943670001408329 and 4511500001408300 of accused No.2 knowing fully well that the said amount legitimately belonged to M/s. Hotel Windsor Manor, Bangalore, who are the registered merchant establishment of Andhra Bank and the loss that was caused by such illegal transactions was to the tune of Rs.4.88 lakhs to Andhra Bank Credit Card Division, Bangalore and corresponding wrongful gain for the accused themselves.
4.2. Accused No.2 being the beneficiary of fraudulent diversion of the said amount, utilised such amount for purchase of gold jewellery, electronic gadgets and also withdrawal of the cash through his credit card and shared the proceeds with Accused No.1. Several debit vouchers of Andhra Bank, N.R.Road and Gandhi Nagar Branch depicted the transactions committed by accused No.2 in conspiracy with accused No.1. It is also noted in the complaint that accused No.1 in conspiracy with accused No.3 diverted the charge slip amounts to the -6- NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 individual credit card account bearing No.4511500025029003 of accused No.3 knowing very well that those amounts belonged to M/s. Hotel Le Meridian formerly known as Holiday Inn, Bangalore, which was registered merchant establishment of Andhra Bank and wrongful gain made by accused Nos.1 and 3 to the tune of Rs.3.30 lakhs and wrongful loss to Andhra Bank.
4.3 After the diversion of such funds, the proceeds were again used by accused No.3 for the purpose of purchasing gold jewellery, electronic gadgets and withdrawal of the cash and he shared the same with Accused No.1. After registering the same, investigation agency conducted the thorough investigation and filed charge sheet against accused Nos.1 to 3 for the offence punishable under Sections 420 r/w Section 120B of IPC.
5. On receipt of charge sheet, learned Special Judge took cognizance of the aforesaid offences and secured the presence of accused Nos.1 to 3 and framed -7- NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 the charges. Accused persons pleaded not guilty, and therefore, trial was held.
6. In order to bring home the guilt of the accused persons, the prosecution proceeded to examine in all 31 witnesses as P.W.1 to P.W.31 and placed on record 284 documents, which were exhibited and marked as Ex.P.1 to Ex.P.284. During the course of investigation, gold jewellery which was said to have been purchased by accused Nos.2 and 3 and sharing of the proceeds with accused No.1 were also recovered, which were relied upon and marked as M.O.1 to M.O.15.
7. On conclusion of the recording of the prosecution witnesses, the accused statement, as is contemplated under Section 313 of Cr.P.C. was recorded wherein the accused persons have denied incriminatory materials. Five documents were no doubt marked on behalf of the defence evidence, which is the computerized printout of the pay order register extract as Ex.D1, the debit voucher as Ex.D2, the recapitulation sheet as Ex.D3, -8- NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 Letter dated 20.03.1998 as Ex.D4 and specimen handwriting of PW.16 which is the explanation of accused No.3 as Ex.D5.
8. Thereafter, learned Special Judge heard the parties in detail and on appreciation of the material evidence on record in cumulative manner convicted the accused persons for the offence punishable under Section 420 read with Section 120-B of IPC.
9. Insofar as accused No.1 is concerned he was convicted for the aforesaid offences and also recorded under Section 13(2) R/W Section 13(1) (d) of the Prevention of Corruption Act, 1988.
10. Sentence ordered by the learned Special Judge is extracted hereunder for ready reference:
"For the offence under Sec. 120В IРС, Accused No.1 in convicted and sentenced to undergo Sl for two years and is directed to pay a fine of Rs.20,000/-; in default of payment of fine, he shall undergo St for six months.
For the offence under Sec.420 IPC, Accused No.1 is convicted and sentenced to undergo Sl for two years and is directed to pay a fine of Rs.20,000/-; and in default of payment of fine, he shall undergo Sl for six months.-9-
NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 For the offence under Sec.13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 Accused No.1 is convicted and sentenced to undergo SI for two years and shall also pay a fine of Rs.30,000/- in default of payment of fine he shall undergo Sl for six months.
For the offence under Sec.120B IPC, Accused No.2 and 3 are convicted and sentenced to undergo Sl for three years and shall also pay a fine of 35,000 /- each; and in default of payment of fine, defaulting accused shall undergo Sl for six months.
For the offence under Sec. 420 IPC, Accused No.2 and 3 are convicted and sentenced to undergo Sl for three years and are directed to pay a fine of Rs.35,000/- each and in default of payment of fine defaulting accused shall undergo SI for six months, The substantive sentence of imprisonment inflicted on Accused Nos.1 to 3 shall run concurrently.
M.Os.1 and 15 are directed to be confiscated to State.
The Order regarding disposal of property shall take effect after the appeal period is over.
Accused No.1 to 3 are entitled to benefit of set off respecting the period of detention, if any, under Section 428 of Cr.P.C."
11. Being aggrieved by the same, all the accused persons have preferred the appeals as referred to supra.
12. In these two appeals, the case of accused Nos.2 and 3 is taken into consideration as accused No.1 is no more and consideration of the said appeal on merits, is disjuncted from the present appeal as there is no application yet filed on behalf of the appellant to pursue the appeal further, insofar as accused No.1 is concerned.
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13. Sri.B.B.Sagar, learned counsel representing the appellants (accused Nos.2 and 3) in these two appeals, reiterating the grounds urged in the appeal memorandum vehemently contended that the prosecution evidence is hardly sufficient to convict the present appellants along with accused No.1 for the offence punishable under Section 120-B of Indian Penal Code (for short 'IPC') and therefore conviction of the appellants for the said offence is per se illegal and sought for allowing the appeal.
14. It is the further argument that in the event of this Court accepting the contentions of the appellants that there is no material on record to maintain the conviction for the offence punishable under Section 120-B of IPC, offence under Section 420 of IPC would not ipso facto get attracted insofar as appellants are concerned, as they were only beneficiary in the credit card account and if there is mis-credit in their accounts, it would only result in irregularity and not illegality and thus, sought for allowing these appeals.
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15. Sri.B.B.Sagar further contended that in the event this court not accepting the contentions urged on behalf of the appellants, Court may consider the case of appellants in a lenient manner and since the entire amount is now repaid, and noting the fact that the appellants do not claim the jewellery seized from their custody, may set aside the sentence of imprisonment and by enhancing the fine amount suitably.
16. In order to have certainty with regard to his submissions at the instructions of appellants, a memo is also filed without prejudice to the rights of the appellants by counsel for the appellants which reads as under:
"The undersigned counsel for appellants in Criminal Appeal No.725/2011 and Criminal Appeal No.835/2011 on instructions of the appellants as an alternate argument sought for modification of the sentence by enhancing the fine amount, the same may be kindly be considered in the interest of justice."
17. Per Contra, Sri.P.Prasanna Kumar, learned counsel for the respondent/CBI supports the impugned judgment.
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18. He further contended that admittedly, accused No.1 is a public servant being the Manager of Credit Card Division in Andhra Bank, was the whole and sole person to deal with the credit card accounts in Andhra Bank and was the person who was required to handle the charge slips of hotel Windson Manor and Le Meridien, Bangalore. Admittedly, those two establishments were the Merchant Establishments of Andhra Bank and as per the rules of the bank and the agreement between the Merchant Establishments and the bank, the charge slips were to be processed by accused No.1 insofar as the credit card payments are concerned and the money is to be recovered from the concerned.
19. He pointed out that accused No.1 in active conspiracy with appellants herein, diverted the charge slips and credits were made to the accounts of accused Nos.2 and 3 (appellants), which was withdrawn in cash by the appellants in part and they made transactions in several outlets by purchasing the gold ornaments like
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NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 gold chain, gold bangles etc., which are marked as M.Os.1 to 15 and the recovery thereof has been properly established by the prosecution by placing cogent and convincing evidence on record. Thus, all ingredients require to attract the offence punishable under Section 420 of IPC and 120-B of IPC has been established by the prosecution by placing cogent evidence on record.
20. Sri.P.Prasanna Kumar also contended that non- claiming of the M.Os.1 to 15 by the appellants exposes the hollowness in the case of the appellants herein and wrongful loss that has been caused to the bank is to the tune of Rs.4.88 lakhs and 3.30 lakhs in respect of Merchant Establishments of those hotels and thus, the finding of conviction recorded by the learned Special Judge is just and proper and needs no interference by this Court even after re-appreciation of the material evidence on record and thus sought for dismissal of the appeal.
21. Sri.P.Prasanna Kumar, further contended that no doubt, it is the discretion of this court to pass
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NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 appropriate sentence in a given case that too while exercising the appellate jurisdiction. But in the case on hand, no mitigating circumstances are forthcoming to accept the alternate prayer made on behalf of the appellants and in setting aside the sentence and enhancing the fine amount and thus, sought for dismissal of the appeal in toto.
22. 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:
1) Whether the prosecution has successfully established all necessary ingredients to attract the offence punishable under Section 420 and 120- B of IPC?
2) Whether the appellants make out a case that the impugned judgment is suffering from infirmity and perversity and thus calls for interference?
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CRL.A No. 835 of 2011
C/W CRL.A No. 752 of 2011
3) Whether the sentence needs
modification?
4) What order?
REG.POINT Nos. 1 AND 2:
23. In the case on hand, accused No.1 being the Manager of Andhra Bank, Credit Card Division is not in dispute. So also he discharge in the work as the public servant in the capacity of Manager of Andhra Bank between the period of August 1995 and October 1997 is not in dispute. Admittedly in the bank, there were two Merchant Establishments as referred to supra pertaining to M/s. Hotel Windson Manor and M/s. Hotel Le Meridien.
24. Admittedly, the amounts of credit that had to be made in favour of those Merchant Establishments as per the agreement between the bank and the Merchant establishments. Payments were being made from time to time. When the matter stood thus, accused No.1 conspired with accused Nos.2 and 3 and diverted the charge slips pertaining to aforesaid Merchant
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NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 Establishments and credited the proceeds to the accounts of accused Nos.2 and 3. These aspects of the matter are established by the prosecution not only from the examination of the prosecution witnesses but also from the documentary evidence placed on record. Ex.P.3 recapitulation sheet, Ex.P.5 debit vouchers and Ex.P.2 demand draft amply establish the diversion of the amount. So also cash advance vouchers marked at Exs.P.29 to P.35 of several dates recapitulation sheet did not tally each other. From such transfer of proceeds, accused Nos.2 and 3 have swiped their credit cards in different Merchant Establishments (outlets) and purchased gold ornaments which were seized from the custody of accused Nos.2 and 3 and placed on record in the form of M.Os.1 to 15.
25. Material evidence also depicts that apart from purchasing the costly ornaments, accused Nos.2 and 3 also withdraw cash from the Automated Teller machine (for short 'ATM') which was shared by them with accused
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NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 No.1. Panch witnesses to seizure mahazar have supported the case of the prosecution.
26. Detailed cross-examination of prosecution witnesses did not yield any positive material on record so as to hold that prosecution has established its case against accused Nos.1 to 3. Admittedly, there is no proper explanation forthcoming from accused Nos.2 and 3 with regard to the possession of gold ornaments. Further as per memo supra they are not claiming for return of the material objects.
27. However, with regard to the withdrawal of the cash and sharing the same with accused No.1, it is only the oral evidence that has been relied on by the learned Trial Judge. As against the documents that have been placed on record by the prosecution, five documents were also placed on record by the defence which were marked as Exs.D.1 to D.5 as referred to supra. One such document which assumes the importance is Ex.D.1 which
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NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 is the computerized print out pay order Register and Ex.D.3 recapitulation sheet dated 07.07.1997.
28. It is to be borne in mind that from the recapitulation sheet that has been placed on record by the prosecution in comparison with Ex.D.3 it makes clear that the prosecution case is established by placing reliance on recapitulation sheet marked on behalf of the prosecution as the entries found in Ex.D.3 is the similar entries that has been found in the recapitulation sheets marked on behalf of the prosecution at Exs.P.3, P.10 to P.24, P.36.
29. Admittedly, Merchant Establishments were required to pay for the amount spent by accused Nos.2 and 3 and the discrepancy was noted. There was an enquiry which ultimately brought into light about the fraud committed by accused No.1 who was in active conspiracy with accused Nos.2 and 3. It is only thereafter, the detailed investigation has taken place wherein the investigation agency has been able to recover M.Os.1 to 15 from the custody of the appellants herein. Since the
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NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 case of the prosecution rest predominantly on the documentary evidence rather than the oral testimony, minor contradictions in the oral testimony of the prosecution witnesses did not cause any serious dent in the case of prosecution and they are to be termed as natural in the attendant facts and circumstances of the case.
30. Therefore, this court is of the considered opinion that the material evidence placed on record especially Exs.P.14, P.18, P.20, P.22 and P.24 and so also Ex.P.10 to P.13, P.15 to P.17 and P.19, P.21 and P.23, which are belonging to the Merchant Establishments of hotel Windsor Manor and the other merchant establishment, conclude the offence of Section 420 of IPC, inasmuch as, the bank has been put to a loss to the extent of 4.88 lakhs and 3.30 lakhs. Needless to emphasize that those amounts have been misused by accused Nos.2 and 3 which has been credited to their credit cards accounts in active collusion with accused No.1 who having fraudulently diverted the charge slips. As such, the ingredients attract
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NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 the offence under Section 420 of IPC namely wrongful loss to the Andhra Bank and wrongful gain to the accused Nos.2 and 3 which has been shared in part by them with accused No.1 stands established by placing cogent evidence on record.
31. Having said thus, to attract the offence under Section 120-B of IPC, the prosecution has to place on record such evidence which should be in a position to inform that there was an illegal agreement to achieve an illegal object.
32. In the case on hand, accused No.1 being the Manager of the Andhra Bank in Credit Card Division was the sole person to process the charge slips. Admittedly, he diverted those charge slips into the account of accused Nos.2 and 3. Accused Nos.2 and 3 knew very well that they were not required to repay the amount that has been spent by them inasmuch as the amounts that has been transferred to their account were actually belonging to the
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NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 Merchant Establishments of hotel Windson Manor and Le Meridien as referred to supra.
33. For establishing the offence under section 120- B of IPC, there need not be an agreement in writing. Such positive evidence is seldom available in a given case. Therefore, Courts are required to infer from the attendant facts and circumstances as to the presence of an agreement, which is entered into to do some illegal act or some act which is legal but by illegal means.
34. In the case on hand, processing the charge slip is a legal act that is the function of accused No.1 being the Manager of Andhra Bank, Credit Card Division. However, such an act was carried out by the accused No.1 with an intention to have the illegal object being achieved inasmuch as it is accused Nos.2 and 3 were not entitled to received the amounts to the tune of Rs.4.88 lakhs and 3.30 lakhs, which were actually belonging to the Merchant Establishments as referred to supra, have utilized the same and purchased the M.Os.1 to 15 and also withdrew
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NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 part of the cash and shared to the same with accused No.1. Therefore, material evidence on record is sufficient enough to conclude the offence under Section 120-B of IPC, which has been rightly appreciated by the learned Judge in the impugned judgment.
35. In the light of the grounds of appeal, this Court re-appreciated material evidence on record and does not find any legal infirmity and perversity in the said finding. Moreover, even though the written submissions are furnished by the accused No.1 and accused Nos.2 and 3 tried to explain that they were innocent, material on record is otherwise. Therefore, their explanation cannot be accepted. On the contrary, the impugned order of the learned Special Judge is based on sound appreciation of material evidence on record with logical reasons. In view of the foregoing discussion, point Nos.1 and 2 are answered in the affirmative and negative respectively. REG.POINT No.3:
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36. Sri.B.B.Sagar, learned counsel for the appellants had filed a memo referred to supra, accused Nos.2 and 3 being the appellants, they are in advanced age and they are in mid or late fifties.
37. Further the amount is also recovered from them during the course of investigation. Seizure of M.Os.1 to 15, which are now in Court custody would be enough to meet the wrongful loss of the bank.
38. Taking note of the same, an accused persons being the first time offenders, and imprisonment ordered by the learned Special Judge is only the simple imprisonment for 3 years, this court is of the considered opinion that period of sentence is set aside by enhancing the fine amount in a sum of Rs.1,00,000/- (Rs.70,000/- + Rs.1,00,000/- = Rs.1,70,000/-) would meet the ends of justice in attendant facts and circumstances of the case.
39. It is also to be noted that the appellants do not lay claim of M.Os.1 to 15. Which are to be confiscated and returned to Andhra Bank and entire fine amount recovered
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NC: 2025:KHC:2585 CRL.A No. 835 of 2011 C/W CRL.A No. 752 of 2011 could be paid as compensation to M/s Andhra Bank in terms of Section 357 Cr.P.C would meet the ends of Justice. Accordingly, point No.3 is answered partly in the affirmative.
REG. POINT No.4:
40. In view of the finding of this Court on point Nos.1 to 3 as above, following:
ORDER
i) The appeals are allowed-in part.
ii) While maintaining the conviction of the appellants for the offence punishable under Section 420 read with Section 120-
B of IPC, simple imprisonment of 3 years ordered by the learned Special Judge is set aside, by enhancing the fine amount in a sum of Rs.1,00,000/- payable by each of the appellants (Rs.70,000/- + Rs.1,00,000/- = Rs.1,70,000/-). Entire enhanced fine amount of Rs.1,00,000/- is ordered be paid as compensation to Andhra Bank.
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iii) Time is granted to pay the balance fine amount till 28.02.2025. Failure to make the payment of enhanced fine amount would automatically restore the simple imprisonment of 3 years ordered by the learned Special Judge in impugned judgment.
iv) M.Os.1 to 15 are ordered to be confiscated and returned to Andhra Bank under due identification.
Sd/-
(V SRISHANANDA) JUDGE KTY/BKN List No.: 1 Sl No.: 49