Madras High Court
Smt.Sugeetha K.Rangan vs /
Author: G.Jayachandran
Bench: G.Jayachandran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on: 27.02.2018 Pronounced on: 06.03.2018 Coram: The Honourable Dr.Justice G.Jayachandran Criminal Appeal No. 397 of 2005 1. Smt.Sugeetha K.Rangan 2. V.K.Kasthuri Rangan ...Accused 1 & 2/Appellant /versus/ The State Rep. By Inspector of Police, SPE/CBI/ACB/Chennai. ... Respondent/Complainant PRAYER: Criminal Appeal is filed under Section 394 of Criminal Procedure Code, against the judgment of the learned the Principal Special Judge for C.B.I Cases, Chennai-104 made in C.C.No.53 of 2000 dated 29.04.2005 convicting the 1st and 2nd appellants herein under Section 120(b) of IPC and sentencing to undergo 1 year R.I and to pay a fine of Rs.2,500/- each and in default to undergo 2 months R.I; convicting the 1st and 2nd appellants under Section 420 IPC and sentencing her to undergo 1 year R.I and pay a fine of Rs.2,500/- each and in default to undergo 2 months R.I and the 1st appellant is sentenced under Section 201 of I.P.C to undergo 6 months R.I and to pay a fine of Rs.1,000/- in default to undergo 1 month R.I; 1st appellant is also convicted under Section 477-A of I.P.C and sentenced to undergo R.I for 1 year and also to pay a fine of Rs.1,000/- in default to undergo R.I for 2 months; 1st appellant is also convicted under section under Sections 13(2) r/w 13(1)(b) of Prevention of Corruption Act. 1988 and sentenced to undergo 1 year R.I and to pay a fine of Rs.3,000/- in default to undergo 2 months R.I and the sentence to run concurrently. For Appellant : Mr. K.Shankar For Respondent : Mr. K.Srinivasan, Special Public Prosecutor (CBI) ------ J U D G M E N T
This appeal is directed against the judgment rendered by the Principal Special judge for C.B.I cases in C.C.No.53 of 2000 dated 29.04.2005 holing accused 1 and 2 for guilty of offence under Section 120 B IPC and 420 IPC.
2. Insofar as A1 is concerned she was also held guilty for offences under Section 201 IPC and 477-A IPC and 13(2) r/w 13(1)(d) of Prevention of Corruption Act for all the offences, the Trial Court has sentenced him to undergo one year Rigorous Imprisonment and a fine varying from Rs.1,000/- to Rs.3,000/-. The period of sentence was ordered to run concurrently.
3. The case of the prosecution is that on 30.11.1998 reliable information received by Inspector of Police SPE/CBI/ACB/Chennai disclosed the cognizable offence wherein Smt.Sugeetha K.Rangan Senior Manager at Bank of Baroda serving as Vice President at BOB Card Ltd., Chennai wholly owned subsidiary of Bank of Baroda along with her husband Thiru.V.K.Kasthuri Rangan, Director of M/s. K.R.S Electronic Pvt Ltd., had conspired to misappropriate, cheat, to fabricate the documents and use the same as genuine and to falsify the book of accounts of BOB Card Ltd., which was under the custody of A1. As Vice President of BOB Card Ltd., A1 has abused her official position had misappropriated the cheque leaves entrusted to her for the purpose of issuing to the merchants. She has made false entry in the book of accounts of BOB Card Ltd., as if cheque bearing No.73090 dated 16.04.1998 for Rs.10,30,000/- was issued in the favour of KRS Electronic Pvt Ltd., and thereby enabling her husband A2 to encash the same through SBI Srithozhi Branch, Numgabakkam, Chennai.
4. Though A2 [V.K.Kasthuri Rangan] had account in Bank of Baroda his company M/s. K.R.S Electronic Pvt Ltd., had no facility in BOB Card Ltd., However, the misappropriated cheque has been used by A1 [Smt.Sugeetha K.Rangan] as a genuine by presented it in the account of her husband A2 [V.K.Kasthuri Rangan] and when the cheque was received for collection she has made fraudulently entries in the cheque payment account. Thus a sum of Rs.10,30,000/- had been misappropriated by A1 and A2. Later the said sum had been paid from the other firm of A2 by M/s. Jay Enterprises.
5. During the investigation the prosecution has collected evidence to show prima facie case against A1 and A2, that on 13.04.1998 A1 fraudulently and dishonestly used a old cheque of Bank of Baroda bearing no.073090 which belongs to credit card cell and filled it for a sum of Rs.10,30,000/- in favour of M/s. K.R.S Electronic Pvt Ltd., [A company run by her husband V.K.Kasthuri Rangan]. This company does not have any credit facility with BOB Card Ltd., without receiving charge slip for Rs.10,30,000/- A1 has issued the cheque in favour of M/s.K.R.S Electronic Pvt Ltd., A2 had deposited the said cheque in his cash credit account with State of India Srithozhi Branch, on 15.04.1998. When the said cheque send for collection by SBI Srithozhi Branch to the BOB Cards limited, A1 removed the original cheque and prepared separate debit voucher for the cheque amount and in the BOB Cards limited account falsely debited the amount to that extent. A2 encashing the said cheque has used the said money to close the outstanding balance in his cash credit account with SBI Srithozhi Branch. Further to mislead the registered office at Mumbai and to avoid the deduction of the fraud committed by her, A1 has destroyed the original cheque, she has not prepared the M schedule for the period of 28.04.1998 to 04.05.1998 and to adjust the fraudulent debit of Rs.10,30,000/-, A1 has prepared false vouchers showing as if cheque were issued to various merchants.
6. Some payment by way of cheques from A2 were received into the BOB Cards credit account to adjust the debit balance. The Trial Court on the basis of above said final report had framed the charge and proceeded with the Trial. In support of the prosecution case, PW.1 to PW.15 were examined Ex.P.1 to Ex.P.58 were marked the accused though did not let in any evidence for defence written statement were filed when they were question under section 313 of Cr.P.C about the incriminating material against them. Ex.D.1 to Ex.D.8 were marked on their behalf.
7. The Trial court after considering the material placed by the prosecution had held that A1 has abused her official position and had misappropriated cheque of credit card cell. She has misused it as if issued by BOB cards Ltd., and had issued the same to her husbands company which was not a member of BOB Cards limited. A1 husband [A2] in turn had deposited the cheque in his account maintained at SBI Srithozhi Branch. He has cleared of his outstanding dues by using the cheque. When the said cheque came for collection, A1 had fabricated the accounts and had concealed the misappropriation by making false entries. To avoid deduction she has also destroyed the original cheque issued in favour of KRS Electronic Pvt Ltd., for a sum of Rs.10,30,000/-.
8. Relying upon the evidence let in by the prosecution more particularly Ex.P.1 the account register maintained at BOB Card limited., Ex.P.39 & Ex.P.40 the photocopy of the cheque recovered during the search of the accused premises; Ex.P.9 BOB Card limited cheques payable account for 16.04.1998, wherein the entry of Rs.10,30,000/- has been manually included by A1 and the evidence of prosecution witnesses who have spoken about these exhibits establish the fact that cheque no:073090 was not in the running series of cheque issued by BOB Card limited put together cumulatively, the prosecution had proved the guilt of the accused beyond reasonable doubt.
9. Aggrieved by the judgment and conviction the appeal is preferred on the ground that the Trial court as failed to properly appreciate Ex.D.6 marked by the defence to prove that the 2nd accused was a BOB Card holder and had long-standing business relationship with the Bank of Baroda. The Trial Court has not taken into consideration the admission of PW.4 Gopalakrishnan, PW.16 Jayakumar, and PW.15 Meera Subramanian that in case of necessity the practice of issuing manual cheques was prevailing during the relevant point of time in the Bank of Baroda. Further the manual entry made A1 by itself will not be a proof of guilt unless the prosecution prove the said manual entry is made by A1 and A1 made the said manual entry contrary to the records. When these two aspects not been proved by the prosecution, A1 cannot be held liable. The internal enquiry conducted by PW.15 and her report PW.36 has only brought out irregularity prevailing in the BOB Card division and there is no incriminating material against A1. The alleged recovery of photocopy of cheques marked Ex.P.39 and Ex.P.40 is a make belief document created by the prosecution and not been proved in the manner known to law. The Trial Court has heavily relied upon this document when the prosecution has not examined the natural witnesses for the alleged search and seizure namely Murugan and Duraisamy.
10. The prosecution has given criminal colour to the transaction while incident is only an administrative lapse, system failure and nothing more.
11. The learned Counsel appearing for the appellant would further submit that certain documents were called for to produce by filing petition under Section 91 Cr.P.C before the Trial Court. Though the Trial Court has ordered for production of document, the bank has informed the Court that there is not such document available with them. The Trial court instead of drawing adverse inference, held that when there is no document as claimed by the defence, the question of producing such document does not arise. The said observation of the trial Court prejudice the defence and had the document produced by the Bank, which they are supposed to possess, the innocent of the appellant would have been easily established.
12. The case of the prosecution that A2 was not a member of BOB Card Private Limited would have been disproved if the bank had produced the account opening file of A2.
13. Per contra, the learned Special Public Prosecutor appearing for CBI would submit that A1 as Vice President of BOB Card Division knowing fully well that her husband company M/s.K.R.S Private Limited is not a member of BOB Card Ltd., and does not have any cheque facility, with fraudulent intention had misused the cheque of cash credit cell, Bank of Baroda. To issue a cheque in favour of KRS Electronic Pvt Ltd., for a sum of Rs.10,30,000/-. The said cheque was presented in the State Bank of India Srithozhi branch cash credit account of M/s.K.R.S. Electronic Pvt Ltd., by A2 knowing fully well that the said cheque has been fraudulently created by his wife by misusing her official position. A2 in convenience with A1 presented the cheques in his account and cleared of his debts.
14. The evidence of PW.1 narrates how the fraud has been committed. His evidence is suffice to explain the modus operandi adopted by A1 and A2 to cheat the Bank of Baroda at tune of Rs.10,30,000/-. The appellants had never denied the encashment of Rs.10,30,000/- using the Bank of Baroda cheque. The defence taken by the accused persons that A2 is a member of BOB Card limited is not proved by them and Ex.D.6 which the appellant rely upon to show that KRS Electronic Pvt Ltd., is a member of BOB Card limited does not prove the said fact. Contrarily, it only indicates that M/s.K.R.S Electronic Pvt.Lt., is an account holder at Bank of Baroda Mandi Road branch and V.K.Kasthuri Rangan A2 in his individual capacity had been a member of Bobcard limited and that is not denied by the prosecution and Ex.D.7 series and Ex.D.8 series only proves the fact that V.K.Kasthuri Rangan as an individual was a member of Bobcard Limited and not the M/s.K.R.S. Electronic Ltd., in which he was the director.
15. Further, the learned Special Public Prosecutor would submit that after the internal investigation conducted by PW.15 Meera Subaramanian, A1 has given a letter dated 26.05.1998 admitting her guilt and promising the bank to re-pay the debit by 30th May 1998. Hence, the learned Special Public Prosecutor would submit that the prosecution has proved the guilty of the accused beyond doubt and finding of the Trial Court has to be confirmed.
Points for consideration Whether the finding of the Trial court bristles with error of fact or error of law?
16. A1 was Vice President Bank of Baroda credit card limited Chennai and A1 her husband V.K.Kasthuri Rangan was director of KRS Electronic Limited and Proprietor of M/s. Jay Enterprises. The credit card cell of Bank of Baroda after establishing the Bank of Baroda card limited an subsidy of Bank of Baroda had declared the cheque leaves meant for credit card cell as obsolete after 31.03.1995. Once such cheque has been declared as obsolete, cheque bearing No.073092 has become invalid. After establishing the BOB Card Limited and commencement of his commercial operation from 01.04.1995, BOB Card limited was issuing continuous pre-printed cheque leaves with magnetic ink characters recognition code marked as Bank of Baroda Mount Branch. This fact is spoken by PW.1 Sundareswaran, the senior Manager in the Bank of Baroda. The appellant herein has not disputed this fact. While so, cheque bearing No.073093 meant for credit card cell of Bank of Baroda which has been obsolete after 31.03.1995 had been issued by A1 in favour of M/s.K.R.S Private Limited on 13.04.1998 to encash a sum of Rs.10,30,000/-. This action of A1 on the face of it indicates the dishonest and deceptive intention of A1. Furtherance to the said act of dishonesty the cheque prepared by A1 had been deposited by her husband in the account of M/s.K.R.S Private Limited. It is proved through witnesses that M/s.K.R.S Electronic Pvt Ltd., was not a member of BOB Card limited.
17. The attempt made by the defence that KRS Electronics Pvt Ltd., is member of BOB Card limited is disproved by their own documents Ex.D.6 and Ex.D.7. A private limited company is a juristic body which has its own name and seal. What would be seen from Ex.D.6 to Ex.D.8 series is that K.R.S Electronics is an account holder in the Bank of Baroda Branch, whereas A2 was a member in the BOB Card private limited when none member cannot avail the cheque facility in BOB Card Limited, A1 due to her position as Vice President of BOB Card limited had abused her position misappropriated the obsolete cheque of Bank of Baroda bearing No.073090. She has prepared it in favour of KRS Electronic Private Limited. Thus the cheque for a sum of Rs.10,30,000/- as well as the person whose favour the cheque has been issued both are against the banking process and the person who has created the cheque and the person who got benefit out of it are wife and husband the relationship between them also strengthen the case of the prosecution regarding the criminal conspiracy between them.
18. It is also proved through evidence of prosecution that the cheque which was sent for collection by SBI Srithozhi Branch, Nungabakkam has been screened by A1 to cover up the deficit in the account. So false entries being made in the cheque payable ledger. Extract of outstanding cheques and the manual entries made by A1 in the Ex.P.9 proves the case of the prosecution that account were falsified and fabricated by her in furtherance of conspiracy between her and her husband to cheat the Bank of Baroda a sum of Rs.10,30,000/-. No doubt, subsequently few deposits are made from the account of M/s. Jay Enterprises a firm owned by A2 in order to adjust the deficit in the account, but that act of appellants adds credence to the case of the prosecution that the very preparation of cheque and encashment of the same is borne out of criminal conspiracy to cheat the bank.
19. The Court below in his judgment has analysed the evidence of prosecution as well as the documents relied by the accused persons and had come to the right conclusion that the entire transaction pertaining to the cheque bearing No.073090 for a sum of Rs.10,30,000/- issued in favour KRS Electronic Pvt Ltd., is in deviation of the normal transaction. Even the entries in the account book were made separately /manual and in all stages the role of A1 is proved.
20. The reading of the PW.1 deposition and PW.14 deposition this Court would find that the appellants herein had knowingly and calculatively had siphoned the money of Bank of Baroda by taking advantage of lacuna in the system which did not have a fool proof method of cross verifying the transactions. Since at that point of time, the banking sector was passing through transitional period of shifting from manual entries of ledger to computerized digital era, A1 and A2 had taken advantage of the situation and had enriched themselves. When they were caught, they hurriedly repaid the money in instalments.
21. This Court on scrutinizing the evidence, does not find any reason to interfere the well considered judgment of the Trial Court. Except considering the age of the appellant to modify the nature of imprisonment as modified below;
Rank of the accused Conviction under Section Sentence imposed by the Trial Court Sentence modified by this Court.
A1 & A2 Under Section 120-B IPC To undergo 1 year R.I and also to pay a fine of Rs.2,500/- each in default to undergo 2 months R.I To undergo 1 year S.I and also to pay a fine of Rs.2,500/- each in default to undergo 2 months S.I A1 & A2 Under Section 420 IPC To undergo 1 year R.I and also to pay a fine of Rs.2,500/- each in default to undergo 2 months R.I To undergo 1 year S.I and also to pay a fine of Rs.2,500/- each in default to undergo 2 months S.I A1 Under Section 201 IPC To undergo 6 months R.I and also to pay a fine of Rs.1,000/- in default to undergo 1 month R.I To undergo 6 months S.I and also to pay a fine of Rs.1,000/- in default to undergo 1 month S.I A1 Under Section 477-A To undergo 1 year R.I and also to pay a fine of Rs.1,000/- in default to undergo 2 months R.I To undergo 1 year S.I and also to pay a fine of Rs.1,000/- in default to undergo 2 months S.I A1 Under Section 13(2) r/w 13(1) (d) of PC Act To undergo 1 year R.I and also to pay a fine of Rs.3,000/- in default to undergo 2 months R.I To undergo 1 year S.I and also to pay a fine of Rs.3,000/- in default to undergo 2 months S.I The period of sentenced already undergone by the accused is ordered to be set off.
22.Therefore, the judgment and sentence passed by the learned Principal Special Judge for C.B.I Cases Chennai in C.C.No.53 of 2000 dated 29.04.2005 is hereby confirmed with modification. Accordingly, the Criminal Appeal No.397 of 2005 is dismissed.
06.03.2018 Index:yes/no Internet:yes/no bsm To
1.
1. The Inspector of Police, SPE/CBI/ACB/Chennai.
2. The learned Principal Special Judge [C.B.I Cases], Chennai-104.
2. The Special Public Prosecutor, (CBI) High Court, Madras.
Dr.G.Jayachandran,J.
bsm Pre-delivery judgment made in Criminal Appeal No.397 of 2005 06.03.2018