Madras High Court
The State vs S. Saminathan on 24 August, 2012
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2012
CORAM
THE HONOURABLE MS. JUSTICE R. MALA
CRL.A.NO. 501 OF 2005
The State,
represented by Inspector of Police,
SPE/CBI/ACB, Madras.
.. Appellant/Complainant
Vs
1.S. Saminathan,
(Formerly, Finance & Accounts Officer,
ONGC,MMDA Towers, Chennai)
2.M.K. DANGE,
(Formerly Dy. Director (Finance &
Accounts) , ONGC, MMDA Towers,
Chennai.
3.I. Ratnakar
.. Respondents/Accused 1 to 3
Prayer: Criminal Appeal filed under Section 378(2) of Cr.P.C., against the judgment of acquittal passed by the learned Principal Special Judge for CBI Cases, Chennai in C.C.No.176 of 1997 dated 11.3.2005.
For Appellant : Mr. N. Chandrasekaran
Special Public Prosecutor,
CBI Cases,
For Respondents : Mr. K.Shankar for R1
Mr. A.V. Somasundaram
for M/s.Lakshmipriya Associates for R2
Mr. Ashok Kumar, Senior Counsel
` for Mr. Devishankar for R3
J U D G M E N T
This appeal has been arising out of the judgment of acquittal passed by learned Principal Special Judge for CBI Cases, Chennai on 11.3.2005 in C.C.No9.176 of 1997.
2. The appellant/CBI filed a final report against the accused under section 120-B r/w. section 420, r/w.511, 467, 471, 468, 468 r/w.471, 201 IPC and 13(2) and 13(1)(d) of PC Act 1988 against A1 to A3 and under section 468 r/w.471 IPC against A1 and A2 and under section 468 IPC against A1 to A3 and under section 468 r/w.471 IPC against A1 to A3, under section167 of IPC against A2, under section 467 rw.471 of IPC against A1 and A2, under section 420 r/w.511 IPC against A1 to A3, under section 201 IPC against A1 and A2 and under section 13(2) r/w.13(1)(d) of P.C. Act, 1988 against A1 and A2 .
3.The case of the prosecution is as follows;
(i)The ONGC engaged the service of foreign company viz., Western Service International (WSI) of North America for technical service i.e., for the operation and Management for ONGC's Drill Ship viz., "Sagar Prabghat".
(ii) A1-Swaminathan is Finance and Accounts Officer, A2-M.K.Dange is Deputy Director, Finance and Accounts in ONGC, Madras. A3- I.Rathnakar is a private person and is a resident of Hyderabad. The service of WSI is to carry out the technical service of the Drill Ship viz., Sagar Prabghat belonging to ONGC. That factum is admitted one. After filing the appeal, refund of income tax is recorded and the amount of Rs.30,84,124/- is lying in the account of Western Service International.
(iii)While so, A1 and A2 who were working as Finance and Accounts Officer and Deputy Director, Finance & Accounts respectively want to misappropriate the amount. They created a fabricated letter by using false letter heads and visiting cards in the name of Western Service International with the help of A3. They fabricated the letter as if the said company was requesting the refund of Income Tax received in its name and A3 was shown as if he is the representative of WSI and also to encash the amount, they opened bank account.
(iv)PW2-S.K. Guptha who was working at Dehradun has signed the vouchers Ex.P.3 dated 9.4.1992 and another voucher Ex.P.4 for Rs.15,63,717/- in respect of debit for income tax demand raised by Income Tax Department in the case of Western Services International for assessment year 1985-1986. The debit voucher Ex.P.5 dated 11.5.1992 was signed by PW2 for Rs.1,18,710/-. Since the ONGC has already paid excess income tax, which was subsequently refunded by the income tax department. Since WSI worked for ONGC, Madras Office, the above vouchers were handed over to the representative from Madras Office at Dehradun. Notice dated 5.10.1993 which was received by ONGC on 11.10.1993 is Ex.P.6. That notice was forwarded to ONGC Madras Office vide letter dated 14.10.1993 Ex.P.7 for compliance which was signed by PW2. The telex message dated 1.11.1993 was received by Income Tax Section, Dehra Dun addressed to PW2. The message was sent by M.K.Dange which is Ex.P.8. On receipt of Ex.P.8, the amount was deposited by his counter parts with Income Tax Department. On enquiry, subsequently PW2 came to know that the amount was not deducted from the payment of non-resident company namely WSI. This amount was authorised from ONGC's fund. The amount of Rs.80,77,317/- is due to ONGC.
(v)PW3-Sampath is Deputy Manager, (Finance)at Assam. When he worked at Madras during 1992 as Central Accounts Officer, ONGC, Madras, he attended the conference along with his assistants Isaac and Dhayalan at Dehradun. He received Ex.P.3 to Ex.P.5 from PW2. Through him Ex.P.9 and Ex.P.10 were marked to show that Ex.P.9 and Ex.P.10 have been made by A2. As per the calculations deducting the tax demand made by the Income Tax Department for Rs.33,10,819/- from the balance amount of Rs.63,94,943/-. He deposed that all the calculations were made by A2. The bank payment voucher in favour of Western Services International were prepared and authorised by A2 and counter singed by Mr. Harith under Ex.P.11.
(vi)PW4-Nelson who was working as Senior Finance Accounts Officer, ONGC, Madras had deposed that he handled income tax matters related to foreign technicians who come and work for ONGC in India and Foreign Companies who come to Indian work for ONGC in oil exploration activities. There are two types of contracts entered with foreign companies. One is tax protected contract and second one is non-tax protected contract. In respect of tax protected contract, there are two types of taxes payable by the foreign companies namely corporate tax and personal tax. Wherever tax protected contacts are there, income tax wing of ONGC deposits due taxes to the Treasury of the Government based on the payment details provided by the concerned Projects. In respect of non-tax protected contract a specific order u/s.195(2) of the Income Tax Act is obtained from the Income Tax Department. The concerned Projects deduct tax at source based on the order u/s.195(2) and authorised Income Tax Wing of ONGC at Dehradun to deposit the taxes in Government Treasury. He deposed that for the assessment year 1984-85 related to the financial year 1983-84 ONGC filed returns of income in the capacity of the agent of the foreign company after paying due corporate taxes. The assessment order is Ex.P.12. Ex.P.13 is assessment calculation. The assessment order is Ex.P.14. On receipt of the assessment order ONGC deposited the tax demand and the challan is Ex.P.15. The Commissioner of Income Tax, Meerut reopened the assessment of the Assessing Officer and directed him to charge interest on ONGC under section 139(8) and 217 of the Income Tax Act. That order is Ex,.P.16. The order of the Assistant Commissioner of Income Tax dated 14.2.1990 is Ex.P.17. The order dated 29.7.1991 is Ex.P.18. The Assessing Officer refunded the excess tax in two instalments; one by way of Refund Order for an amount of Rs.39,32,982/-. The copy of the refund order is Ex.P.19. A further sum of Rs.84,28,771/- was adjusted vide order dated 12.8.1991 against the demand of some other companies. The adjustment order dated 12.8.91 is Ex.P.20. Based on the authority received from A2 and after verification from the Income Tax Department , a sum of Rs.33,10,819/- was deposited by him on 17.11.1993. The challan for the said amount is Ex.P.21. The letter dated 10.11.1993 is Ex.P.22.
(vii)P.W.18 Jeevanandham is working as Chief Financial Officer of UK based Company. He would depose that all the tax returns of the Companies of ONGC were centralized at Dehradun. ONGC gives various sub contracts both Indian and foreign companies. Western Services International is an USA based company working for ONGC in relation to the operation and Management of Drill ship Sagar Prabath. The file containing certain papers in respect of the assessment in relation to Western Services International for the financial year 1983-84 and assessment year 1984-85 is Ex.P55. There are two different types of taxes, personal tax and corporate tax as per the contract at Clause 8.1 is Ex.P56. Income tax of employees has been bound by Western Services International and the corporate tax liability of Western Services International shall be borne by ONGC and the same is Ex.P57.
(viii)PW5 -S.Ranganathan who is working as Senior Finance Accounts Officer in ONGC, Chennai is the authorised signatory for the uncodified balance sheets. On 2.12.1993 he went to PW7-Mr.E.C.G.Babu, the Cash Officer incharge and enquired him regarding certain Bank Reconciliation statement. At that time Swaminathan/A1 was collecting a cheque by signing in the Register from E.C.G. Babu. After some time PW7 informed that the G.M. Asked him to collect the cheque back from A1. So both PW5 and PW7 went in search ofA1 who was sitting in the cabin of Mr.Jeevanantham and he was told by Babu/P.W.7 that he collected the cheque back. On 3.12.1993 onwards A1 did not attend the office. He noticed A1 and A2 entering the gate of his office main building, but both of them went back immediately. The uncodified balance sheet for the year 1991 to 1992 is Ex.P.24. In the months of March 1992 the outstanding amounts as per the details of other deposits, liability accounts as on 31.3.1992 shown in page 474 Ex.P.25 is Rs.63,94,943/- shown against M/s.Western Services International.
(ix)PW-6 Dinesh was working as Account Assistant Grade-3, ONGC, Madras in 1993. On 2.12.1993, a voucher for Rs.30,84,124/- was received in our office in favour of Western Services International. Ex.P.28 is the cheque collected by Swaminathan. The cheque issued register maintained in office is Ex.P.29. In page 50 of Ex.P.29, it was stated he has mentioned the issuance of Ex.P.28 cheque and that entry is Ex.P.30. Whenever the cheque is prepared, either PW6 or PW7 will make entry in the cheque issue register.
(x) PW7 -E.C.G. Babu worked at cash section during October 1992. While he was working in cash Section, he prepares a cheque based on the vouchers and these cheque will be despatched to register post and own officers also collect the cheques for purchasing of foreign exchange at spot rate through Nationalised bank and also few officers collect the payments for custom duty, Port Trust charges and other statutory payments. Cheques above Rs.5 lakhs should be signed by Cash Officer along with Joint Director (Finance). On 2.12.1993, he was working in cash section as cash officer. After the lunch time one voucher favouring Western Services International was brought to me by A1. That has been signed by the competent Authority i.e., A2 and Joint Officer (Finance) Shri Harith and A1 gave voucher asking him that the cheque should be prepared immediately and the cheque should not be sent through registered post and the same to be handed over to A1 as instructed by General Manager (Finance) Mr. P.L.K. Namdev/P.W.8. During that period his Additional Director Mr.D.P.Mukergi was on training and so his duties were were also look after by Shri Harith. He also deposed that based on the above facts voucher has been prepared by M.K.Dange and Mr. Harith as a competent pre Audit Officers and and Mr.Harith and himself signed on the cheques as authorised officers and handed over the same to A1. Immediately as per the instruction of General Manager he searched for A1 along with PW6-Ranganathan and they found A1 was sitting in Jevanantham Chamber. Then he was A1 keeping the original cheques and he striked the entry in Ex.P.30 at page 50 with red ink. That has been witnessed by his Assistant Dinesh. As per the instruction of Mr. Harith, he cancelled the cheque with red ink. He handed over the original voucher and documents around 3.00 p.m. He was served with memo by Harith, Joint Director. Before receipt of memo he requested Joint Director Harith to give back the cheque issue register for him to prepare a new cheque issued register for the undisbursed cheques.
(xi) At 7.30 p.m., he noticed A1 and A2 entered the office premises through the adjacent Vaigai Hotel gates and going towards canteen. On 6.12.1993, Monday, he came to know that the voucher and the supporting documents and all other originals were missing from Mr. Harith Chamber. On that day he went to State Bank of India, Egmore and met the Deputy Manager and through him he collected some details in respect of A1 and A2 and a third person attempting to open a current account in favour of Western Services International by producing visiting cards . Then he obtained the xerox copy of visiting cards -Ex.P.31 produced by A1 and A2 and gave it to his higher officers. The original visiting card is Ex.P.32, in which one I.Ratnakar was shown as Proprietor of the concern. He took xerox copy of voucher-Ex.P.34. After taking Exs.P.22, Ex.P.23, Ex.P.33 and Ex.P.34, He handed over the originals to Shri Harith.
(xii)He further deposed that since he was served with memo, he was upset and he left without closing the cash and bank book on 03.12.1993. He left the office around 6.30 p.m., since there was a heavy drizzling , he took shelter in a scooter stand and at that time, he noticed that A1 and A2 entering in the office premises through the adjacent Vaigai Hotel gates and going towards canteen. He was surprised that since A1 was not present in office on that day, how can he accompanied with A2. Both are returned back after 10 minutes and again they are entering into the office. Hence, P.W.7 went to 7th floor along with Sundararajan and informed the security people that before entry, they should make entry in the security entry register relating the particulars namely, name, designation, timing in and out. Then he left for his home. 4th and 5th December 1993 are holidays, Saturday and Sunday. On 06.12.1993, he came to know that the voucher and the supporting documents were all other originals were missing from Shri Harith Chamber. He also came to know through Kanagaraj, Deputy Manager, State Bank of India, Egmore that on 24.11.1993, A1 and A2 and their person came to his bank viz., State Bank of India, Egmore, to open a current account, in favour of Western Services International and also they gave a visiting card to Kanagarahj, P.W.10, who handed over the xerox copy of visiting card in turn, he handed over the same to the higher officer. The xerox copy of visiting card is Ex.P31.
(xiii)He further deposed that he came to know that no letter was sent by Income Tax Department., O.C.G.C. Dehradun to Chennai Officer, pertaining refund of income tax Rs.30,84,124/- Western Services International. The original visiting card of M/s.Western Services International is Ex.P32 and the xerox copy of calculation sheet is Ex.P33, which was written by A2. Ex.P28 is the cheque prepared by P.W.7.
(xiv)P.W.8 Namdev, who is the retired General Manager (Finance) O.N.G.C., would depose that A1 has received a cheque in favour of Western Services International and that factum has been intimated by P.W.7 Babu as if he instructed A1, to collect the cheque. But, P.W.8 has deposed that he has not given such instructions to give the cheque to A1. Hence he asked P.W.7 Babu to call Joint Director Mr.Harith and after enquired with A2 and Mr.Harith, he instructed P.W.7 Babu to collect the cheque Ex.P28 from A1 and to cancel the same. He has also asked Harith to keep the vouchers and supporting documents in safe custody. He also instructed to Harith to get explanation from P.W.7 Babu and A1 Swaminathan. From the very next day onwards, A1 was not attended the office. So, telegram has been issued for A1's appearance on 06.12.1993. On 06.12.1993, at about 11.00 a.m., Harith came to the office and intimated the fact that the cabin door was broken open and table drawer was also broken open. Vouchers in the safe custody were stolen. Hence, he directed Harith to make a complaint and inform to Regional Director. To verify the genuinity of the documents, himself and Regional Director sent one Officer to Dehradun. They sent Sundararajan to ascertain the same. Thereafter, A1 and A2 were placed under suspension on 07.12.1993.
(xv)P.W.9 Mr.Sekar deposed that he is working at Student Xerox, Guindy Branch. On 18.02.1994, C.B.I officers made an enquiry as to whether A1 gave any order for typing and on verifying the documents, he has stated that he typed the same. That letter is Ex.P36, that is laser print. Bill Book is Ex.P37. Counterfoils of receipts is Ex.P38, both were seized under Ex.P39 seizure Mahazer.
(xvi)P.W.11 Subramani is doing screen printing profession along with his brother Devaraj, P.W.13 in the name and style of 'T.P.Lakshmi Company'. In 1993 November last week, two persons came his printing press and they gave a letter to print the visiting card and letter head. He printed the visiting card i.e. Ex.P32 and received Rs.250/- and he also printed three letter heads Ex.P40 and another letter head in block ink i.e. Ex.P41, Original letter head Ex.P42. On seeing Exs.P30 to 42 , he has accepted that he did the work and that has been seized under Mahazer Ex.P43.
(xvii)P.W.13 Devarajan is the Security Guard in O.N.G.C. On 04.12.1993 he was on duty in M.M.D.A., building O.N.G.C. Office, from morning 6.20 a.m. To 2.00 p.m. On that day P.W.15 Radhakrishnan was the Security Supervisor in 7th floor. At about 7.30 a.m.A1 and A2, Swaminathan and Donky came there. Since it was the holiday, he locked the finance department shutter. A1 and A2 requested P.W.15 Radhakrishnan to open the shutters stating that they are having some work in the office. As per the instruction of P.W.15, P.W.13 opened the shutter and A2 has signed in the entry note and A1 and A2 entered into the office and within half an hour, they came out of the office. Then, A1 requested P.W.15 to hand over the computer room key. Since P.W.15 stated that the keys are not available with him, they left the place. Leave register is Ex.P.46, wherein Page Nos.70 and 71, A1 signed in serial No.1, that is Ex.P.47.
(xviii)P.W.14 K.V.S.Mani had worked in Kajendra Xerox at Jemini Parson Complex. He deposed that Ex.P40 has been typed by him.
(xix)P.W.16 Mukharjee had deposed that Ex.P22 is issued regarding refund of income tax in respect of Western Services International. That letter was addressed to him. On 26.11.1993, he marked this letter to the Joint Director, Finance and Accounts. The copy of the above endorsement is Ex.P48. Ex.P23 is the letter written to Western Services International through Sri.Devadi, Additional Director Finance Dehradun, dated 20.10.1993. He has no doubt of the genuineness of the original of Ex.P22.
(xx)P.W.17 is Mr.Kalyana Narasimhan, Manager, Andhra Bank, Mount Branch. While he was working at Chetpet Branch from July 1993 to May 1994, A1 and A2 used to meet on behalf of ONGC in respect of Foreign Exchange transaction. On 24.11.1993, A1 and A2 came to his bank along with another person telling his name as Rathnagar/A3 and they came to his cabin and A2 was sitting outside. A1 introduced A3 P.W.17 as Proprietor of Western Services International and A2 told that A3 wants to open a current account in the name of Western Services International. At that time, P.W.17 informed that if ONGC gives an introduction letter regarding identity, then the account will be permitted to open. A1 and A2 informed him that they will come on the next day and on the next day, A3 alone came to his Branch and current account was opened in the name of Western Service International showing that Mr.Rathnagar/A3 as the proprietor of the concern. The account number 841 was opened with an initial deposit of Rs.1,001/- and that application form opening for current account is Ex.P49 and the specimen signature is Ex.P50. Declaration of the form of Western Services International is Ex.P51. The account opening chalan dated 25.11.1993 showing the opening credit of Rs.1,001- in the account of Western Service International is Ex.P52. On 07.12.1993, A1 to A2 went to house of P.W.17 and requested him to close the account on 08.12.1993 after receiving letter from A3 and the account has been closed.
(xxi)P.W.19 J.Daniel is a Taxi driver. His taxi bearing Regn. No.TSR 2993 has been used by ONGC on contract basis. The log book for the said car is Ex.P58. On 28.11.1993, A1 and A2 used the vehicle from ONGC office to Reserve Bank of India. That entry is Ex.P59. On that day, his vehicle was used to go to ONHC Office at Jemeni Fly over. They also gone to one press and A1 directed him to make note of that place, since he ought to have collected some papers from there on the very next day. The endorsement made at page No.25 in Ex.P58 is Ex.P60.
(xxii)P.W.20 Madhavan, retired Security Inspector from ONGC came to know that on 05.12.1993 one Dakshinamoorthy informed him that the room of Harith working in Finance Department was broken and immediately he went there and found the door was broken and screws were found on the floor near the doors. Then, he informed the same to his Manager.
(xxiii)P.W.21 has deposed that his working days were Monday to Friday and Saturday and Sunday were holidays. If there was any pending work, they have attended on Saturdays also. On 04.12.1993, he attended office, at 9.40 a.m. And cleared the pending bills. He noticed that shutters of the 7th floor of eastern side was opened, but nobody was in the office.
(xxiv)P.W.22 Rajendran is the Driver of Trident Hotel, Meenambakkam, Chennai. On 01.09.1993, he worked as Driver in M/s.Ravishankar Travels. He was the driver of Ambassador car bearing Regn.No.TN 01 6644. They had contract with ONGC particularly, with the finance department. The vehicle was given to General Manager (Finance), which was also used by other officials of the Finance Department. A1 and A2 working in the finance department. They used in this car for going to Reserve Bank of India, State Bank of India, Andhra Bank, Chetpet Branch, Royapetah and Zam Bazaar. The log book was written by those officials, who used the car. He also maintained a diary for office purpose. On 17.11.1993, the vehicle was used to go to MMDA office to SBI, SBI to Royapettah, Royapettah to Zam Basaar, Zam Bazaar to Paris, Paris to RBI, RBI to MMDA building, by A1 and A2. The above said particulars were noted in Ex.P61 dated 17.11.1993 and the same is Ex.P62.
(xxv)P.W.23 Paramasivan, Chief Manager of S.B.I. Panthean Road Branch, Egmore, Chennai would depose that ONGC is having a current account in their branch. The company is dealing with the foreign transaction. But, no current account has been opened in the name of M/s.Western Services International, since there was no proper introduction.
(xxvi)P.W.24 Subramaniam is the attestor of Ex.P64, seizure mahazer, which was prepared from student xerox.
(xxvii)P.W.26 Issac, Senior Finance and Accounts Officer in ONGC at Karaikal would depose that he along with A2 attended Inter Unit Transaction Conference at Dehradun. During the conference Exs.P3,4 and 5 (I.T. US) were given by Income Tax section of ONGC, Dehradun to himself and Sampath. That are related to Western Services International, Chennai.
(xxviii)P.W.27, retired Group General Manager, ONGC, Dehradun would depose that he had worked as General Manager (Material Management) during July 93 to April 94 at S.R.B.C. Chennai. He knows C.K.Srinivasan, General Manager (Technical) and he was his immediate superior. Preliminary enquiry was conducted by him and C.K.Srinivasan and the Preliminary enquiry report submitted by them is Ex.P66.
(xxix)P.W.32 Mr.Uma Maheswara Rao, who was the Deputy Superintendent of Police, Police Training College at Anantapur. Wile he was working at Nallakunta Police Station at Hyderabad, he conducted house search in pursuance of the order passed by the Special Court. The search list dated 29.04.1994 is Ex.P71.
(xxx)P.W.33 Mr.Lohia was working as Deputy Government Examiner at Questioned document in the office of G.E.Q.D. At Hyderabad. He has has received admitted signatures and disputed signatures in writing for examination and to give his opinion.
(xxxi)P.W.34 Arulanandh would depose that he registered a case in R.C.58A/93 against A1 and A2 and also one Harith and unknown persons for the offence under Sections 120B r/w 420, 467, 468, 471 I.P.C. and Section 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 and prepared Ex.P81 and investigated the matter and he seized the document and the questioned documents were forwarded to P.W.33 for examination and he received the leave letter of A1, which is Ex.P85. The specimen rubber stamp impressions of Western Services International is Ex.P86. Receipt No.051 dated25.11.1993 of M.B.S.C.Bombay is Ex.P.87. Receipt No.1728, dated 25.11.1993 of M.B.S.C. Bombay is Ex.P88. Receipt No.1729, of MBSC dated25.11.1993 is Ex.P89. Pay in slip dated 25.11.1993 of IOB New Marine lines Bombay for Rs.1,950/- is Ex.P90 and current account statements of MBSC account with ION New Marine Lines Bombay is Ex.P91. Further he examined the witnesses and recorded the statements and filed the final report.
4.The learned Special Judge after following the procedure framed necessary charges against the accused. Since the accused pleaded not guilty, the Special Court examined P.W.1 to P.W.34 and marked Exs.P1 to P91. The Special Court formulated Section 313 Cr.P.C. questioning and the incriminating evidence against the accused were put to the accused. They denied the involvement of forgery of documents and cheating and abuse of office and criminal misconduct. On their side, Ex.D1 to D3 marked.
5.On considering the oral and documentary evidence, the Special Court acquitted all the accused. Against the said acquittal, the CB.I. preferred the present appeal.
6.Challenging the conviction and sentence passed by the Special Court, Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I. cases submitted that A1 and A2 are the Finance and Account Officers in ONGC, A3 was working as Sales Representative in a private firm. The ONGC entered into a contract with one Western Services International (WSI), for the operation and Management of the ONGC's drill ship named "Sagar Prabghat" under the contract. The company completed its contract work in the year 1985 itself and after full and final settlement of its dues, the WSI thereafter left India. But ONGC has paid the corporate income tax and personal income tax. After filing the appeal, the refund order has been passed for a sum of Rs.80,77,370/- by the Income tax department. Since the amount is kept in the name of WSI, the appellants A1 and A2 conspiring with A3 with an intention to cheat ONGC created and fabricated the documents viz., letter heads, visiting card as if WSI is situated at Villivakkam and they opened an account at Andhra Bank with an intention to use those documents as genuine one and misappropriated the amount due to the WSI. So the charges have been framed against A1 to A3 for the offence under Sections 120B r/w 420 r/w 511, 467 r/w 471, 468, 468 r/w 471, 201 IPC and 13(2) r/w 13(1)(d) of P.C. Act, 1988. A1 and A2 gave confessions and the same were marked as Exs.P83 and P84, but their confessional statements were not considered by the Special Court. Further, he submitted that the Special Court failed to consider the opinion of Handwriting Expert. P.W.10/Kanagaraj, Deputy Manager in the State Bank of India, categorically deposed that A1 and A2 made an attempt to open account in the name of A3 by introducing him. That factum has not been considered by the Special Court. P.W.17/Bank Manager, Andhra Bank, deposed about the activities of A1 to A3/R1 to R3 with regard to their opening and closing of the account. The Special Court ought to have accepted the evidence of P.W.11 who printed the letter head and visiting card as desired by A1 and A2. He further submitted that the Special Court ought to have accepted the evidence of P.W.9 and P.W.14, who typed Exs.P36 and P40, at the instance of A1. The Special Court has erroneously rejected the evidence of P.W.9 to P.W.11, P.W.14 and P.W.17 stating that identification of the accused is not proper, since they saw the accused for the first time in Court. Further the Special Court also rejected the evidence of P.W.22, the driver, who maintained the log book, during the relevant time. Learned Special Public Prosecutor further submitted that P.W.6/Dinesh, who was working as Junior Accountant in ONGC, deposed that Ex.P28 is the cheque collected by A1. Ex.P29 is the cheque issued Register at page No.50, from where, he identified Ex.P28 cheque was collected by A1 and A1 signed for collecting the cheque for Rs.30,84,124/-. That entry is Ex.P30, which was made by one E.C.G.Babu. When A1 came along with the cheque and surrendered the cheque to their Department as per Joint Director (F & A) instructions, the said E.C.G. Babu has made an endorsement as cheque cancelled. It shows that A1 to A3 were concocted the documents under Exs.P22 and P23 and that has not been considered by the Special Court. So, the judgment of acquittal is not sustainable and he prayed for allowing of this appeal.
7.Resisting the same, learned counsel Mr.K.Shankar appearing for R1/A1, learned counsel Mr.A.V.Somasundaram for M/S.Lakshmi Priya Associates for R2/A2, would make the following submissions:
The offences under Sections 120B r/w 420 r/w 511, 467 r/w 471, 468, 468 r/w 471, 201 IPC and 13(2) r/w 13(1)(d) of P.C. Act, 1988, have not been made out against A1. He further submitted that Appellate Court cannot set aside the acquittal order, if two views are possible, the view favouring the accused will be taken into consideration. Unless the judgment of trial Court is perverse, the Appellate Court is not entitled to interfere with. Since Ex.P28 cheque has been cancelled, there is no cheating on his side and the same was not proved. The amount is only refund of income tax to WSI, which is a Foreign Company. The case of the prosecution is that A2 prepared voucher based on the available records under Exs.P22 and P23, on that basis only cheque has been prepared and was taken by A1 and that has been signed by two persons namely, P.W.7/E.C.G.Babu and one Harith. But neither a charge sheet has been filed against the said Harith nor he was examined before the Court and no reason has been assigned as to why he was not examined, even though case has been registered against Mr.Harith. He further submitted that P.W.34/Arulanand, Inspector of Police, who registered a case, is not a competent person to investigate the matter and filed a charge sheet against the accused/respondents. The Special Court considering all the aspects in proper perspective manner acquitted the respondents/accused. Hence, he prayed for dismissal of the appeal.
8.Mr.Ashok Kumar, learned senior counsel appearing for R3 submitted that A3/R3 is a third party and his name has been falsely implicated in this case and he is nothing to do with the commission of offence. Hence, he prayed for dismissal of the appeal.
9.I have Considered the rival submissions made on both sides and the materials available on record.
10.Admittedly, the Oil and Natural Gas Commission (ONGC) had entered into a contract with Western Service International (W.S.I.), which is a Foreign Company for operation and management for the ONGC's Drill Ship named "Sagar Prabhat". The contractors in WSI were paid in the usual course on agreed terms and the company completed its contract work in 1985 itself and left India after full and final settlement of its dues. ONGC has paid the corporate tax in the I.T. Department. During that time, the Head Office of ONGC at Dehradurn, filed an appeal against the order of the Income Tax Authorities for treating the income as Technical Services income instead of business income. The Appellate Authority passed refund order in favour of ONGC directing the Assessing Officer to treat the entire income as business income and following the same, the Assessing Officer passed an order working out a total refund of Rs.1,23,61,753/-. The amount refunded as I.T. refund and it should be treated as revenue income of ONGC, Madras, which paid the amount on behalf of Non-resident Company's I.T. liabilities.
11.The case of the prosecution is that A1 to A3 in pursuance of criminal conspiracy fabricated false documents in the name of WSI for claiming I.T. return to the tune of Rs.30,84,124/-, since amount had been laying in the name of the said WSI company and in the said process, the 1st accused had obtained cheque from ONGC. A2 prepared vouchers on the basis of Exs.P3 to P5, which are ordered to refund of income tax in favour of WSI, based on available records. On perusal of Exs.P3 to P5, it was prepared by the Head Office of ONGC, Dehradun. P.W.3/Sampath, senior Finance and Accounts Officer, deposed that Exs.P3 to P5 vouchers were prepared and authorised by A2 for the claimed amount of Rs.30,84,124/- and counter signed by Mr.H.S.Harith.
12.Now this Court has to decide that whether A1 and A2 conspiring together with A3 as if A3 is a Proprietor of WSI prepared forged documents and committed the above said offence? The case of the prosecution is that they prepared letter heads and visiting cards and opened account in Andhra Bank to encash the cheque and also they attempted to open an account in State Bank of India. To open account in the Bank, Exs.P31 and P32 visiting cards stood in the name of A3 were produced, in which, it was shown as Western Service International's Proprietor is Ratnagar/A3, Office at Secundrabad, another at Villivakkam. For which, P.W.11/Subramani was examined and he is doing the business of screen printing at J.J.Khan Street, Royapettai, Chennai. In his evidence, he stated that two persons had approached him for printing letter heads and visiting cards. They ordered 100 visiting cards and letter heads, except this, they ordered 20 letter heads without address. The visiting cards were marked as Ex.P32 and the letter heads were marked as Ex.P40. In his examination, he fairly conceded that he printed the visiting cards and letter heads under Exs.P32, P40 to P42. He also shown the cash book Ex.P44 to prove that he received Rs.250/- towards printing charges. In page-4 and 5 of his cross-examination, he fairly conceded that he did not sign his name in Ex.P32 Visiting card, to show that in which printing press the cards were printed. Further he denied a suggestion that the respondents were not approached him. In my opinion, after considering the above evidence, the Special Court rightly held that the alleged occurrence was said to have taken place in the year 1994 and P.W.11 was examined on 20.09.2000 and he used to contact many parties during his work, in such circumstances, P.W.11 rightly identified the accused persons in Court at the first time and able to say the total number of visiting cards and letter heads allegedly ordered by the accused, is unbelievable.
13.According to the prosecution, with a view to cheat the ONGC for drawing of the amount lying in the credit of WSI account, the accused had attempted to open an account at SBI, Egmore. As per the evidence of P.W.10/Kanagaraj, who was the Deputy Manager, State Bank of India, deposed that A1 called him over phone and requested the details regarding the opening of the bank account and after few days, A1 came along with A3 and shown Ex.P32 visiting card for the introduction of the account holder. During the investigation, P.W.10 deposed that there was no account opened in the names of A1 and A3. Then, after six years, without conducting identification parade, P.W.10 identified the accused in the Court is unbelievable. In such circumstances, the evidence of P.W.9 to P.W.11, P.W.14 and P.W.17 identified the accused at first time in the Court, without conducting identification parade, is unbelievable. In page-28 and 29 of the Judgment, the Special Court rightly held that the evidence of P.W.9 to P.W.11, P.w.14 and P.W.17 are unbelievable and the same does not warrant any interference.
14.Learned counsel for the appellant in the grounds of appeal pointed out that the Special Court rejected Exs.P83 and P84 confessional statements of A1 and A2 respectively, without any application of law. On perusal of Exs.P83 and P84, it would reveal that they were recorded by P.W.34/Arulanand, Inspector of Police, CBI, Special Crime Branch. It is appropriate to consider sanctity of Exs.P83 and P84, in which, no attestation and no recovery were made. Admittedly, Exs.P.83 and 84 alleged to be the confession statements given by A1 and A2 have been recorded by the investigation agency i.e. the police officer/P.W.34. So, it is hit by Section 25 of the Indian Evidence Act. On perusal of Exs.P.83 and 84 would show that no one has attested the documents and the signature of the respondents 1 and 2/A1 and A2 also is not found place. It is appropriate to incorporate Section 25 of the Indian Evidence Act.
"25.Confession to police officer not to be proved._ No confession made to a police officer shall be proved as against a person accused of any offence.
Admittedly, the respondents are not signatory of the confessional statements, which were recorded by P.W.34, Inspector of Police that too investigating officer. As per Section 25 of the Indian Evidence Act, Exs.P.83 and 84 are not admissible in evidence. In such circumstances, I am of the view, the ground urged by the learned counsel for the appellant in Ground Nos.3 and 4, does not merit acceptance.
15.It is also a well settled principle of law, handwriting expert's opinion is not a substantial piece of evidence. A conviction can be based on expert's evidence, if there is any corroboration made by other supporting evidence. Here, no supporting evidence is placed before the Court to fasten the criminal liability against the accused/respondents. This factum has been considered by the Special Court in its Judgment.
16.It is appropriate to consider the evidence of P.W.9/Sekar. P.W.9, who was working in Students xerox, Guindy, deposed that he identified A1 along with A2, who had given matters for typing and he also identified the typed matters in the Court. As already discussed above that the alleged occurrence was taken place in the year 1994 and P.W.9 was enquired on 19.09.2000. So the Special Court assigned a reason that each and every day, people like P.W.9 are witnessing so many customers and they used to see many documents, in such circumstances, the xerox copies, which were taken on such a such date deposed by P.W.9, is unbelievable. So, the Special Court has rightly rejected the evidence of P.W.9.
17.As per the evidence of P.W.22/Rajendran, a Van driver in M/S.Ravi Travels, who had contract with ONGC particularly with Finance Department, deposed that he knew A1 and A2. He further deposed that they were used to go to RBI, SBI, Andhra Bank, Chetpet branch, Royapettah Branch and Zam Bazaar. When the vehicle was used by the said officials, the log book was written by those officials, who used the vehicle. For the office purpose, a Diary was maintained and it was marked as Ex.P61. Ex.P62 is the entries dated 17.11.1993 made in Ex.P.61. While perusing Ex.P61 Diary and Ex.P.62 entries made in Ex.P61, no reliance can be placed on it. The Special Court rightly came to the conclusion that the evidence of P.W.22 is not trustworthy and hence, it is not reliable.
18.Even though charge has been levelled against the respondents for screening of evidence that A1 and A2 has destroyed the evidences in the Cabin of Mr.Harith, the competent person to speak about the destruction of records is Mr.Harith and he was not examined before the trial Court. It is true that P.W.7 Babu and P.W.13 Devarajan and P.W.15 Radhakrishnan/ the security personnel were examined to show that A1 and A2/respondents 1 and 2 have entered into the office. But, no one has deposed that A1 and A2 have screening the evidence. As already stated, Mr.Harith is the competent person and he spoke about the documents, which are missing. But, Mr.Harith was not examined before the trial Court. In such circumstances, I am of the view that the prosecution has miserably failed to prove that A1 and A2 have screening the evidence.
19.At this juncture, it is appropriate to consider the decisions relied upon by the learned counsel for R2/A2.
(i) He relied upon the decision of the Apex Court reported in AIR 2012 SC 1973 (State of Rajasthan v. Darshan singh @ Darshan Lal) and submitted that appeal against acquittal can be interfered, only if judgment under appeal is perverse and interference not to be made only because other view is possible. In paragraph-24, it is held as follows:
"24. We are fully aware of our limitation to interfere with an order against acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
(ii)He further relied upon the decision of the Apex Court reported in AIR 2012 SC 2225 (State of Andhra Pradesh through CBI v. M.Durga Prasad and others) in para-10, it is held as follows:
"10.It is well settled that this Court interferes with an order of acquittal only when it comes to the conclusion that the view taken by the High Court while acquitting the accused is not a possible view. The reasons for acquittal of the respondents given by the High Court have been incorporated in the preceding paragraphs of this judgment and on perusal thereof it cannot be said that the view taken by the High Court is not a possible view. Mr. Mariarputham, learned Senior Counsel for the appellant has not been able to point out any reason from which it can be inferred that the view taken by the High Court is in any way perverse. "
20.In view of the above findings along with the decisions relied upon by the learned counsel for the respondents, the prosecution has miserably failed to prove that A1 and A2 conspiring together with A3 created and forged the documents as if they are genuine documents. Furthermore, as per the evidence of P.W.6/Dinesh, the cheque has also been signed by one Harith and that has been received by A1. Mr.Harith, who was the competent person, was neither cited as an accused nor examined as a witness, even though F.I.R. Has been registered against Mr.Harith. Further, the account in Andhra Bank was opened on 25.11.1993 and the same was closed on 08.12.1993, but the cheque alleged to have been issued by A1 and A2 on 8.11.1993. In my opinion, it has been rightly considered by the Special Court in para-34 of its judgment that before opening account, how can the cheque was issued. It shows that the evidence of P.W.17, who was the Manager of Andhra Bank, is not trustworthy and hence, it is not reliable. The trial Court has considered all the aspects now raised by the appellant in the ground of appeal and gave a valid reason, which does not warrant any interference. On perusal of documents and judgment, the judgment of acquittal passed by the Special Court does not suffer any perversity. Hence, this Court is not inclined to interfere with the findings of the Special Court. Hence, the criminal appeal is dismissed as devoid of merits by confirming the judgment of acquittal passed by the Special Court.
21.In fine, Criminal Appeal is dismissed.
The Judgment of acquittal passed by the Special Court is confirmed.
24.08.2012
Internet : Yes/No
Index : Yes/No
KJ/MSR/Arul
R.MALA, J.
KJ/MSR/Arul
Pre-Delivery Judgment in
Crl.A.No.501 of 2005
24.08.2012