Bangalore District Court
Mr. Chikkanna vs State By Cbi/Acb on 12 July, 2018
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IN THE COURT OF THE XXI ADDL. CITY CIVIL AND
SESSIONS JUDGE AND PRL. SPECIAL JUDGE FOR CBI
CASES AT BENGALURU (CCH-4).
DATED THIS THE 12th DAY OF JULY 2018
PRESENT: Sri. SADASHIVA S. SULTANPURI,
B.Com., LL.B., (Spl.)
XXI Addl. City Civil and Sessions Judge and
Prl. Special Judge for CBI Cases, Bengaluru.
CRL. APPEAL NO.1011/2017
Appellant Mr. Chikkanna,
S/o Late Ramalingam,
Aged about 58 years,
No.302, Paradise Enclave,
8th Main, 5th Cross,
SBN Colony, Mathikere,
Bengaluru.
(By Sri. Praveen C., Advocate)
Vs.
Respondent State by CBI/ACB, Bangalore,
(Represented by its Public Prosecutor)
JUDGMENT
1) The Accused/Appellant being aggrieved by the judgment of conviction passed by the XVII ACMM (Special Court for CBI 2 Crl.A. No.1011/2017 J Cases), Bangalore in CC No. 9449/2016 dated 23.6.2017, wherein the appellant/accused has been convicted for the offences punishable u/s 420, 409, 468, 471 and 477A of IPC and ordered to undergo sentences has preferred this appeal.
2) The Brief case of the prosecution before the trial court is as under:
(i) The accused was working as Manager of Corporation Bank in the Fast Collection Service Branch, Bengaluru from 20.6.2012 to 27.4.2015 and his employment number was E06084.
He was looking after the tie-up arrangement accounts of other banks and ePG division, handling of petty cash account, submission of income tax returns of the employees and preparation of salary statements etc., C.W.2 Alla Bakash, CW3 Vineeth Kumar and CW.4 C. Vijaykumar were also working in the Fast Collection Service Branch. CW.2 was working as Assistant Manager and CW.4 was working as Single Window Operator.
(ii) The collection and payment service in short CAPS division is one of the divisions of the Corporation Bank and they are 3 Crl.A. No.1011/2017 J catering the needs of corporates for making of early settlement and payments of their funds. The Fast Collection Service Branch in short FCS center is the Information Technology Hub for all the CAPS branches throughout the country and it operates all the CAPS branches. In FCS IT Hub they are having different separate software ICMS i.e., Integrated Cash Management System. The ICMS system is having different modules like ePG, Corp. remit, tie-up, NEFT, RTGS and others and they are used to perform various transactions across all the CAPS branches. The Corporation Bank, wherever it does not have its own branch, they are having tie-up arrangements with other banks to realize the cheque and DD and they are having tie-up arrangement with Vijaya Bank, IDBI Bank and others. In order to complete a transaction in the FCS center by using the software two persons are required one is the maker who makes the entries of the data and the other is the checker who authorises the so made entries. Each of the employee working in the FCS center was given separate user ID and they are having their own passwords in order to carry out their work while 4 Crl.A. No.1011/2017 J functioning by using computers.
(iii) That on 13.9.2014 at about 13.41.46 hours the accused transferred an amount of Rs.2,00,007.63 to his SB account No. 02/040001 of Corporation Bank, Shanthinagar Branch, Bangalore through Corp. remit module by unauthorisedly using the user ID (EP5182) of Sri Alla Bakash the then Senior Manager without his knowledge. In order to source funds for this transfer at 13.44.49 hours on the same day he debited the general ledger head GL-1204 which is a tie-up account of Vijaya Bank and credited GL-199 again by using the user ID of Sri All Bakash without his knowledge. In these transfers the accused used the payment codes ePG001 and narration as CRMT fvg: Corp. ePG201409000028. But the ePG statement of that day was contained details of payments to be made to 18 merchants and it was not contained the transaction of Rs.2,00,007.63. Prior to transfer of amount of Rs.2,00,007.63 to his account of the Corporation Bank, Shanthinagar, Branch, Bengaluru, the accused had the credit balance of Rs.1,171.13 and after transfer the credit balance became 5 Crl.A. No.1011/2017 J Rs.2,01,178.63. Thereafter, on 15.9.2014 the accused transferred Rs.1.5 lakhs to the account of his son B. Harshith and on 15.9.2014 and on 16.9.2014 he withdrew a total amount of Rs.50,000/- in the ATMs.
(iv) Further on 29.12.2014 at about 13.54.43 hours the accused transferred an amount of Rs.1.81 lakh to his SB account No. 02/040001 maintained at Corporation Bank, Shanthinagar branch, Bangalore through Corp. remit module by unauthorisedly using the user IDs (E20621) of CW.3 Sri. Vineethkumar without his knowledge. Later in order to source funds for the said transfer on the same day at 14.02.15 hours the accused made a debit entry in GL-103 and corresponding credit entry in GL-199 by using the user ID (E15472) of CW.4 Sri. Vijaykumar by giving a false narration IDBI/416/916/RSL. The said narration relates to the IDBI bank tie-up arrangement account GL-1206 and it was not having a debit entry of Rs.1.81 lakh. The GL-103 which was debited was not having credit entry from GL-1206. The entries of these general ledgers show the narration CRMT fvg: B. Chikkanna 6 Crl.A. No.1011/2017 J 201412000050. The accused carried out these operations when Shri.Vineethkumar and Shri. Vijaykumar were not in office and when the computer system was running in automatic pooling general component and updation programmes. Prior to transfer of Rs.1.81 lakh, the accused in his account of Corporation Bank, Shanthinagar branch, Bangalore had the credit balance Rs.962.64 and after the transfer the credit balance became Rs.1,81,092.64. Thereafter, on the same day the accused transferred an amount of Rs.1.00 lakh to his ECOD account No. ECOD/02/120008.
(v) Further the accused was also incharge of petty cash amount. That on 29.12.2014 the accused withdrew a cash amount of Rs.19,000/- from the petty cash amount without showing the relevant expenditure in the cash book and by unauthorisedly using the user ID E15472 of Vijaykumar at 13.10.33 hours on the same day by making debit entry to GL-1201 and credit entry to GL-888. The accused made the said transfer and withdrew the money showing as if it was a payment out realisation of the cheque sent to another bank i.e., the Indian Bank and received in GL-1201 and 7 Crl.A. No.1011/2017 J then transferred to the cash account. The accused was handling the petty cash account and he was maintaining the cash book. The closing balance as on 27.12.2014 in the cash book was Rs.51,634/- and on 29.12.2014 there was a total expenditure of Rs.625/- and after adjusting the expenses of Rs.625/- and after adjusting the expenses of Rs.625/- the closing balance as on 29.12.2014 should have been Rs.51,009/,- but the accused usurped the amount of Rs.19,000/- and entered the closing balance as Rs.32,009/- as on 29.12.2014.
(vi) Further, after surfacing the incident and on 25.4.2015 the then S.P. CW.17 Dr. Shri. A. Subramaneshwar Rao suo-moto registered the case against the accused and the investigation was entrusted to CW.18 Shri. S. Subramanian the Inspector of Police. Thereafter, he recorded the statements of the witnesses. He also secured the documents from the FCS branch and Shanthinagar branch, Corporation Bank, Bangalore and also from the HDFC Bank, M.G. Road Branch, Bangalore. Apart from this, he secured the DVD having the footage of CCTV pertaining to the premises of 8 Crl.A. No.1011/2017 J the FCS branch and in the presence of the witnesses he played the same and recorded the proceedings as to movement and identification of the accused. He also inspected the premises of the FCS branch and recorded the proceedings and also got prepared the rough sketch showing the sitting arrangements. After completion of the investigation, has filed a charge sheet against the accused u/s 173 of Cr.P.C., before the XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for CBI Cases, Bengaluru dated 2.7.2015 for the offences punishable u/s 420, 409, 468, 471 and 477A IPC and u/s 13(2) r/w 13(1)(d) of PC Act, 1988.
The Investigating Officer sought time for production of the sanction order. Further, the Investigating Officer even after submitting necessary documents before the competent authority, the said competent authority even after sufficient time did not give sanction order to prosecute the accused. It appears that they have rejected to issue sanction order to prosecute against the accused for the said offences. Hence it appears that prosecution has not produced the said order before the court.
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Crl.A. No.1011/2017 J Thereafter, the said charge sheet was returned to the Investigating Officer from the court of XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for CBI Cases, Bengaluru, as Per the Order Dated 20.11.2016 with a specific order by giving liberty to the Investigating Officer to re-submit the said chargesheet along with the sanction order to prosecute against the accused.
3) Thereafter, the Investigating Officer has filed charge sheet against the accused for the offences punishable u/s 420, 409, 468, 471 and 477A IPC before XVIIth ACMM Court Bengaluru, and filed memo before XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for CBI Cases, Bengaluru with a prayer to transfer and forward all the records of the said case to the XVII ACMM. Accordingly, the XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for CBI Cases, Bengaluru as per the order dated 16.3.2016 forwarded all the records to the XVII ACMM Court, Bengaluru for disposal of the said case against the accused in accordance with law.
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4) Thereafter, the XVII ACMM has taken cognizance against the accused, secured the presence of the accused, has framed the charges against the accused. The prosecution in support of their case has examined PW.1 to PW.17 and got marked Ex.P.1 to Ex.P.48 and got marked M.O.1. The statement of the accused as required u/s 313 Cr.P.C., was recorded, the accused did not lead any defence evidence .
5) The trial court heard the learned accused and the learned Prosecutor. After having heard both the sides has passed an order dated 23.6.2017 convicting the accused for the offences punishable u/s 420, 409, 468, 471 and 477A IPC.
6) Further, after hearing the accused on the sentence, the trial court has sentenced the accused to undergo Rigorous Imprisonment for a period of two years and to pay fine of Rs.5,000/- and in default of payment of fine the accused shall have to undergo RI for a period of three months for the offence punishable u/s 420 of IPC. Further, it is ordered that accused shall have to undergo Rigorous 11 Crl.A. No.1011/2017 J Imprisonment for two years and to pay a fine of Rs.5000/- and default of payment of fine shall have to undergo R.I., further for a period of three months for the offence u/s 409 of IPC. Further, the accused was sentenced to undergo RI for a period of one year and to pay a fine of Rs. 2,000/- in default of payment of fine, he shall have to undergo further RI for a period of two months for the offence punishable u/s 468 of IPC. Further, the accused shall have to undergo RI for 6 months and to pay fine of Rs.1000/- in default for payment of fine, the accused shall have to undergo further RI for a period of one month for the offence punishable u/s 471 of IPC. Further, the accused is sentenced to undergo RI for six months and to pay a fine of Rs.1000/-, further in default of payment of fine amount he shall have to undergo further RI for a period of one month for the offence punishable u/s 477A of IPC. As such in all it is ordered accused shall to pay a fine of Rs.14,000/-. After pronouncement of the said order, the copy of the said judgment was supplied to the accused.
7) Being aggrieved by the said judgment of conviction, the 12 Crl.A. No.1011/2017 J accused/appellant has preferred this appeal on the following grounds: -
(a) The order of the Magistrate is bad in law. The Magistrate has passed the order in mechanical manner without appreciating the evidence and facts on record.
(b) The prosecution has not produced any evidence in respect of the alleged incident much less the accused has used the ID and password of other persons .
(c) Further, the trial court has ignored the clear admission of the PW.17, the Investigating Officer to the effect that he has not collected as to who are using the alleged IP address, the Magistrate has not considered the several admissions given by witnesses in favour of the accused.
(d) PW.3, 4 and 5 have spoken about the fact that each of the computers would have never IP address login sheets the computers assets and many more aspects of the banking function.
(e) The learned Magistrate has not assigned any reasons as to why he disbelieved or accepted the said fact. 13
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(f) The bank has refused to issue sanction to prosecute the appellant as admitted by PW.17 Investigating Officer, despite the same the Magistrate has proceed on the said charge sheet filed against the accused.
Hence, on these grounds and others the appellant prays to set aside the judgment dated 23.7.2017 in CC No. 9447/2016 passed by the XVII ACMM Court.
8) After filing the present appeal, the sentence of imprisonment ordered by the trial court below was suspended by this court and notice of the appeal was given to the Public Prosecutor and lower courts records were secured.
9) On service of the notice of this appeal memo, the learned Prosecutor appeared.
10) I have heard both the sides. The advocate for the appellant has also filed memorandum of written arguments u/s 314 of Cr.P.C., and also filed memo that the accused has submitted that as per the alternative prayer sought by the accused, the accused may 14 Crl.A. No.1011/2017 J at the most be sentenced to imprisonment for one day that is still raising of the court.
11) In view of the above facts and circumstances, the points that arise for my consideration are:
1. Whether the appellant/accused prove that not obtaining sanction against the accused to prosecute him by the CBI is fatal to the case of the prosecution case.?
2. Whether the appellant/accused proves that the impugned order passed by the XVII ACMM suffers from illegality and deserves to be set aside by acquitting the accused as prayed?
3. Whether the appellant/accused proves that in case this court confirms a conviction order passed by the XVII ACMM alternatively he is entitled for sentence of only one day i.e. still raising of the court as urged by him?
4. What order?
12) My findings on the above points are:
Point No.1: In the Affirmative, Point No.2: In the Negative Point No.3: In the Affirmative, Point No.4: As per final order for the following 15 Crl.A. No.1011/2017 J REASONS
13) Point No.1 & 3: For the sake of convince and in order to avoid duplication of discussion of facts, I will take up all these points together for my discussion.
14) The undisputed facts are that the accused worked as Manager in Fast Collection Service Section of Corporation Bank, Bengaluru from 20.6.2012 to 27-04-2015 and till his retirement on 30-06-2016. It is also admitted fact fact that even as on the date of filing of the charge sheet by the Investigating Officer CBI/ACB, Bengaluru before the XVII ACMM on 16-03-2016, still the accused was working as a Manager in the said bank in the capacity of public servant. Further, even on date of taking cognizance on 07-04-2016, the accused was in service. Further admittedly no disciplinary action was taken against accused in respect of the said charges by the said bank.
15) Further, it is admitted fact that in view of the allegations received against the accused through source of information, the SP 16 Crl.A. No.1011/2017 J of the CBI Dr. A. Subramaneshwar Rao suo-moto registered the FIR before the XXI Addl. City Civil & Sessions Judge & Prl.
Special Judge for CBI Cases, Bengaluru. Thereafter, Sri. Subramaniyan, Inspector of Police, CBI/ACB/ Bengaluru has obtained the search warrant from the said court and conducted search in the residence of the accused and seized some documents. During the process of investigation, the Investigating Officer has collected 44 documents and M.O.1 and examined 18 witnesses. Thereafter, on completion of the investigation, he applied for the sanction seeking to prosecute against the accused who is a public servant and filed a charge sheet before the XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for CBI Cases, Bengaluru, Thereafter the case was posted for awaiting the sanction order. Thereafter, even after waiting for sufficient time, the sanction to prosecute against the accused was not secured and produced before the XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for CBI Cases, Bengaluru. Thereafter, the Presiding Officer of the XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for 17 Crl.A. No.1011/2017 J CBI Cases, Bengaluru as per the order dated 20.1.2016 has returned the said charge sheet along with entire records to the Investigating Officer, keeping liberty of the Investigating Officer to re-submit the said final report along with sanction order before the same court. Thereafter, the Investigating Officer, as he could not able to secure the sanction order to prosecute against the accused he filed charge sheet before XVII ACMM Court against the accused for the offences punishable u/s 420, 409, 468, 471, 477A of IPC (excluding the offence under the Prevention of Corruption Act). Thereafter, requested the XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for CBI Cases, Bengaluru for transfer of the entire records to the XVII ACMM Court. Accordingly, the XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for CBI Cases, Bengaluru as per the order dated 15.3.2016 has transferred the entire records to the XVII ACMM Court for disposal in accordance with law.
16) It is also admitted fact that on receipt of the records by the XVII ACMM court. The XVII ACMM has taken cognizance 18 Crl.A. No.1011/2017 J against the accused and registered the case as CC No.9449/2016, the charges were framed against the accused for the said offences as referred above.
17) In order to prove their case, the prosecution has examined PWs.1 to 17 and got marked Ex.P1 to P48 and M.O.1. After hearing both sides the learned XVII ACMM has convicted the accused. Hence, this appeal.
18) In this case, admittedly the Investigating Officer has not secured sanction against the accused to prosecute him. It appears that Competent authority have rejected to issue sanction order to prosecute against the accused for the said offences. Hence, it appears that prosecution has not produced the said order before the court. It is undisputed fact that even as on the date of filing the charge sheet before the XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for CBI Cases, Bengaluru and even before the XVII ACMM on 16-03-2016 accused was still in service and working as a Manager in the capacity of public servant. Therefore, 19 Crl.A. No.1011/2017 J when accused was admittedly a public servant, it is the duty of the Investigating Officer to take sanction to prosecute against the accused as required under law.
19) In this regard, I would like to discuss Section 19 of PC Act which reads as under: -
19. Previous sanction necessary for prosecution:
- (1) No court shall take cognizance of an offences punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
So also 197 of Cr.P.C. reads,
197. Prosecution of Judges and public servants: - (1) When any person who is or was a Judge of Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -
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(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Admittedly, the FIR has been registered against the accused including the offences punishable under the PC Act. It is mandatory as per the provision of Prevention of Corruption Act, 1988 to take sanction from the competent to prosecute against the public servant as required u/s 19 of the said Act. In this regard, the object of taking sanction to prosecute the public servant are:
26. Object: - Section provides protection to public servant so that they are not to be prosecuted for anything done in discharge of their official duties except with previous sanction to Govt. Policy of legislature is to afford adequate protection to responsible public servant and if sanction is granted, to confer on Govt., if they choose to exercise it, complete control of the prosecution.
This protection has certain limits and is available only when the alleged act done by public servant is reasonably connected with discharge of official duty and not merely a cloak for doing objectionable acts.
20) The object of the provision is to prevent the public servant from undue harassment. The authority must therefore act with due 21 Crl.A. No.1011/2017 J application of mind. The sanction is in the nature of safeguard provided to public servant of is being illegal and falsely harassed, implicated and then prosecuted. Therefore, on reading the above provision of law it can be gathered that the object of getting sanction from the competent authority is to protect the public servant from discharge of his official duty without fear and favour. Admittedly, considering the facts of this case as per the case of the prosecution, the accused has committed the offence of forgery and caused loss to the bank of Rs.4,00,007.63 during the month of December 2014. In this regard after confessing the same the accused has deposited the said loss amount caused along with interest to the bank. In this regard, he has also written a letter as per Ex.P33. The cause which lead him to commit the said mistake or the offence as the case may be. Therefore, it appears that banking authorities have accepted the said contention of the accused and got recovered the said amount of loss caused to the bank along with interest, it appears that they were not intended to send the accused to prosecute against him. In other words, the 22 Crl.A. No.1011/2017 J bank authorities have decided that when the accused has already paid the amount of loan to the bank along with interest more particularly it is admitted fact that accused is a Senior Officer at the verge of retirement, he has worked at the bank sincerely, he was said to be a honest officer and he has confessed that due to some unavoidable circumstances of his domestic problem he has committed the said mistake. Therefore, the bank has unconditionally appears to have accepted said act of the accused. Therefore, as on 12.1.2015 the accused has deposited the said amount and it appears as per the banks the said case stands closed. But the CBI after getting the information through the other source have registered an FIR on 25.4.2015, i.e., after about three months of payment of the said loss amount by the accused to the bank. Admittedly, even in the charge sheet the Investigating Officer has pleaded that the accused has paid the said amount of loss caused to the bank along with interest even before registering the FIR. Therefore, it goes to show that the CBI have reopened the said case which was already appears to have been closed by the bank. 23
Crl.A. No.1011/2017 J Therefore, it appears that the banking authorities as they were already decided to close the said matter have not granted sanction against the accused to prosecute him even though it was sought by the Investigating Officer of CBI.
21) Therefore, when the sanction against the accused to prosecute him has not been granted by the competent authorities, the Investigating Officer did not chose to include the offence punishable under PC Act against the accused and excluding the said section he has filed the charge sheet against the accused for the offences punishable under IPC. Admittedly, even while filing the charge sheet against the accused for the offences punishable under IPC also the Investigating Officer has not secured sanction to prosecute against the public servant. In this regard it is vehemently argued by the learned advocate for appellant/accused that even if the prosecution has not sought sanction to prosecute against the accused for the offences punishable under the provisions of PC Act, but it is mandatory on the part of the prosecution to secure sanction as retired under Section 197 of Cr.P.C., to prosecute 24 Crl.A. No.1011/2017 J against the public servant for the offences punishable under the provisions of IPC. As the prosecution has not sought the sanction against the accused to prosecute him as required under Section 19 of the PC Act and Section 197 of Cr.P.C., it is fatal to the case of the prosecution.
22) In this regard, The learned PP argued that in order to prosecute a public servant for the offences punishable u/s 468, 409 of IPC., the sanction as required u/s 97 of Cr.P.C., is not required. In this regard, it is further argued and demonstrated by the learned PP that a forgery and criminal breach of trust are not said to be committed during official duty as a public servant. In this regard, the learned PP has relied upon ruling reported in 2009 Criminal Law Journal 2069 SC passed by their Lordships Dr. Arijit Pasayat, D.K. Jain and Dr. Mukundakam Sharma in the State of UP and others vs. Parasnath Singh wherein their Lordships have held that:
(D) Criminal P.C. (2 of 1974), S. 197 - Sanction for prosecution - Necessity - Offences under Ss. 468, 409 I.P.C. - They are not of nature mentioned in S. 197 25 Crl.A. No.1011/2017 J Cr.P.C., - It is no part of duty of a public servant while discharging his official duties to commit forgery of type covered by aforesaid offences - Want of sanction under Section 197 is, therefore, no no bar - Refusal of grant of leave to appeal on ground that person granting sanction was not authorised to do so - Not proper.
Crl. Mis. Case No. 1074 of 2000, D/- 3-4-2003 (All), Reversed.
Further, admittedly when the Investigating Officer was not successful in getting sanction against the accused as required u/s 19 of the Prevention of Corruption Act, 1988, he did not choose to file charge sheet against the accused for the said offences. As the Investigating Officer has rightly chosen to file charge sheet against the accused for the Sections punishable under section IPC more properly u/s 468, 409, 468, 477A of IPC, the sanction as required under section 197 is not required. Hence, the learned PP justified the act of the Investigating Officer in not securing the sanction to prosecute the public servant i.e., against the accused.
23) On the contrary, the learned advocate for appellant seriously argued that not taking sanction by the prosecution is fatal to the case of the prosecution. In this regard, as already discussed in the 26 Crl.A. No.1011/2017 J above said paragraphs, at the earliest point of time the Investigating Officer has filed a charge sheet against the accused for the offences punishable under Section 468, 409, 420, 477A of IPC including Sec. 13(2) r/w 13(1)(d) of PC Act. Even after the Investigating Officer has sought for the sanction , the sanction was not granted by the competent authority. In this regard, at the cost of repetition, I repeat that when the accused even as on the date of filing the charge sheet and even as on the date of taking cognizance by the lower court, the accused has already deposited the loss caused to the bank and therefore, it appears that they have denied to issue sanction against the accused to prosecute him. When a competent authority refused or did not issue sanction to prosecute against the accused, it indirectly goes to show that they in order to protect and secure the interest of the accused must have not issued or denied the sanction to prosecute him. Therefore, once the sanction is rejected or not granted even after seeking sanction by the Investigating Officer to prosecute the said accused, it is illegal on the part of the Investigating Officer to file the charge sheet against 27 Crl.A. No.1011/2017 J the said accused without getting sanction.
24) Admittedly, the Investigating Officer at the earliest i.e., when he has chosen to file the charge sheet against the accused before the XXI Addl. City Civil & Sessions Judge & Prl. Special Judge for CBI Cases, Bengaluru including the offences punishable under the PC Act, he had of the opinion that the said act of the accused committed during his official duty and as such he has sought sanction to prosecute him. In other words the Investigating Officer as he was of the opinion that the said commission of the offences by the accused is arising out of the official duty of the accused. Admittedly, in the present case on hand, the accused being the Manager of the said bank while operating the computer, he has misused the log in ID of his colleagues and has got credited the said amount to his account by way of fraud and cheating. Therefore, it can be said that when the accused while operating the computers along with his colleague has committed the said offences, which can be said to be committed the said act during in the course of his official duty. Further, obviously no officer or 28 Crl.A. No.1011/2017 J employee of the bank cannot operate the computer unless and until he make use of login ID. Further, it is admitted fact that the said login ID and password were known to the accused. Further, it is also the allegation of the prosecution that the accused has misused the password and ID of his two colleagues, which cannot be said to be done not in his official duty, because when he is on official duty only then he can have in contact and operate the said computers. Merely the findings given in the said judgment that a forgery cannot done in official capacity cannot be accepted, because in the present case on hand, the forgery and cheating the criminal breach of trust are committed by the accused by operating the computer by misusing or abusing the ID and password of his colleagues in the office hours during discharge of his official duty only. Therefore, it can be said that the said act of the accused is committed during his official duty. Further, admittedly as the sanction was not secured or denied by the competent authority IO has presented the charge sheet on the same facts against the accused for the offences punishable u/s 420, 468, 477A of IPC. Therefore, when the 29 Crl.A. No.1011/2017 J Investigating Officer himself was of the opinion that the said act of the accused is said to be committed during the discharge of his official duty, it goes to show that the sanction as required under Sec. 197 of Cr.P.C., to prosecute the accused is necessary and mandatory. Therefore, when the Investigating Officer was denied of the sanction to prosecute the accused, he cannot file charge sheet against the accused only for the offence punishable under IPC claiming that the said act of the accused is done not in discharge of his official duty. In other words it is clearly abuse of process of court. In this regard, I would like to rely upon a ruling reported in AIR 2011 SC 2893 passed by their Lordships G.S. Singhvi and Chandramauli Kr.Prasad in Chittaranjan Das vs. State of Orissa, wherein their Lordships have held that (B) Prevention of Corruption Act (2 of 1947), S. 5 - Possession of disproportionate assets - F.I.R. filed against accused alleging that he possessed disproportionate assets to tune of Rs.5.5 lakhs - Charge-sheet filed, however, showing disproportionate assets only at 1.44 lakhs - Sanction had earlier been refused by Govt. in respect of accused - Prosecution of accused held, would be abuse of process.
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Crl.A. No.1011/2017 J Therefore, it goes to show that when the prosecution have not succeeded in getting sanction against the accused to prosecute him, by using indirect method or back door method chosen to file charge sheet against the accused for the offences punishable under IPC., which is not permissible under law. Their Lordships have observed in para-8 of the said judgment, as under: -
"We are of the opinion that in case in which sanction sought is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of Public Servant. Any other view will render the protection illusory. Situation may be different when sanction is refused by the competent authority after the retirement of the public servant as in that case sanction is not at all necessary and any exercise in this regard would be action in futility."
Therefore, in view of the above facts and circumstances of the case and the decision Hon'ble Supreme Court, I am of the considered opinion that not getting sanction to prosecute against the accused by the prosecution is fatal to the case of the prosecution. 31
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25) Further, the learned advocate for appellant also relied upon a judgment of the Hon'ble High Court of Karnataka in Criminal Appeal No. 622/1995 dated 31.5.2000 between J.S. Sathyanarayana Vs. State by Inspector of Police, Karnataka Lokayukta, Madikeri reported in LAWS (KAR) 2000 5 5 wherein their Lordships have discussed that question of sanction to prosecute the public servant can be raised even before the appellate court and if the sanction is not properly accorded, the accused is entitled for an acquittal. In this regard, further I would like to rely upon the ruling reported in 2015(14) SCC page-186 by their Lordships Justice T.S. Thakur and Amitava Roy in Nanjappa vs. State of Karnataka wherein their Lordships have held:
A. Public accountability, Vigilance and Prevention of Corruption Act, 1988 - Ss. 19(1), 19(3), 19(4), 7 and 13 - Preliminary issue raised that sanction from competent authority not obtained - Proper relief, stage and procedure - Proper stage for raising said dispute, held, is before the trial court at any stage of proceedings before trial court - If trial court finds that sanction from competent authority was not obtained, proper procedure for trial court is to discharge accused rather than deciding case on merits - In case of invalid sanction, trial court cannot pass an order of acquittal - Instead trial court should discharge accused relegating 32 Crl.A. No.1011/2017 J parties to a stage where authorities parties to a stage where authorities can obtain fresh sanction.
26) Therefore, in the said judgment, their Lordships have discussed about the provision of Section 19 of the PC Act and wherein if the sanction is not accorded by the competent what is the role of the court, whether it shall have to acquit the accused or discharge the accused. Their Lordships have discussed in length each and every provision of law to Sec.19 of PC Act and is of the opinion that if at the conclusion of trial, the appellate court if it is found that sanction order is not proved or there is no sanction order to prosecute the public servant, it shall have to remand the case by discharging the accused with liberty of the prosecution to file a fresh charge sheet after getting sanction from the competent authorities to prosecute the public servant. Further, the Hon'ble Supreme Court 2015(14) SCC referred above, their Lordships have discussed in the said judgment that after long 17 years wherein the said appeal now before the Bench of the Supreme Court.
Therefore, keeping in view the long gap no purpose will be served 33 Crl.A. No.1011/2017 J in remanding the matter. Their lordships have given go-bye to the accused by acquitting him. Therefore, as per the said judgment even though the accused has been acquitted by their Lordships, their Lordships have laid down dictum that in case there is no sanction or improper sanction to prosecute a public servant, the proper way is to discharge the accused by giving liberty to the prosecution to file charge sheet afresh by securing proper sanction from the competent authorities. In this regard, I would like to discuss this aspect further at later part of this judgment.
27) Further, admittedly, the learned advocate for appellant even though have raised some points with regard to the merits of the case of conviction against the accused, but during the course of argument, the learned advocate for accused confessed and admitted that he has no ground on merits with regard to the convicting the accused. Therefore, when the advocate for the accused himself has filed memo and admitted the merits of the judgment passed by the trial court and he does not want to challenge the order of conviction, I do not think it necessary to once again discuss the 34 Crl.A. No.1011/2017 J evidence and documents in detail along with the judgment of the trial court. Further, the learned advocate for appellant has also argued and filed memo that he has also claimed alternative relief in the present appeal, that as accused who was the Manager, who has already retired by the time the case heard before the trial court and now he is more than 62 years old man. More particularly he has already deposited the loss amount with interest to the bank prior to filing or registering the FIR. Considering the conduct, behavior of the accused and the age of the accused, who is suffering from old age and considering the honesty and integrity of the accused who voluntarily deposited the amount prior to registration of the FIR, he should be given punishment of only one day i.e., till raising of court. However, he has already deposited fine amount before the trial court. In this regard the learned advocate for appellant has also relied upon ruling reported in AIR 2006 SC 2211 of Justice S.B. Sinha and P.P. Naolekar in State of Himachalapradesh vs. Karanvir wherein their Lordships have held:
(B) Penal Code (45 of 1860), S. 409 -Sentence -
Accused Post-Master convicted under S. 409 - Offence 35 Crl.A. No.1011/2017 J committed 15 years back - Accused 60 years of age - Had deposited misappropriated amount with interest even before FIR was filed - Fine imposed on accused without any substantial punishment.
28) Further, the said judgment has also been relied upon Hon'ble High Court of Karnataka in Criminal Revision Petition No.284/2005 dated 8.11.2006, wherein their Lordships in similar nature of case have held that in case of offence punishable u/s 409 of IPC, where the accused has already deposited the amount of loss caused to the said institution more particularly as the accused has already retired by the time it came for hearing. Therefore, their lordships have opined the sentence of fine be retained and sentence of imprisonment be set aside and it is ordered to undergo sentence only for one day i.e., still the raising of the court. In this regard, I would like to extract the said relevant paragraph of Criminal Revision Petition 284/2005 referred above.
"It was of the view that the trial court has rightly convicted the accused. However, holding that there is no illegality in the order of conviction passed by both the courts below, since the petitioner has already deposited the entire amount of misappropriation, while modifying 36 Crl.A. No.1011/2017 J the sentence, it is ordered that petitioner shall suffer the sentence for one day i.e., till the rising of the Court."
29) Hence, on going through the both the judgments of Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka, admittedly in the present case on hand, as already discussed in the above said paragraphs, the accused who is the Manager of the said bank even though has committed offence during December 2014 immediately on 12.1.2015 he has paid the entire amount of loss caused to the bank. It is also admitted fact that the bank has not issued sanction order to prosecute said accused. In this regard, I have already discussed about the provision of law of not granting sanction to prosecute against the accused. Therefore, keeping in view of the above facts and circumstances, even if the sanction has not been granted to the accused who is the public servant, it is not necessary to remand the case to the trial court by giving liberty to the prosecution to file a charge sheet by securing sanction against the accused. Considering the facts that when the accused himself has admitted the order of the conviction passed by the trial court (without prejudice to the sanction) I am of the considered opinion 37 Crl.A. No.1011/2017 J that it is fit case in the interest of justice, equity and good conscious instead of remanding the matter, as accused himself has admitted the order of conviction, I feel it is just and proper to set aside the order of the sentence by keeping as it is the order of imposing of fine passed by the trial court. Further, admittedly, as per the order of the trial court dated 23.6.2017, a total fine amount of Rs.14,000/- has been imposed in respect of the offences read together that is Section 420, 409, 468, 471 and 477A of IPC and admittedly the accused already deposited the said fine amount before the trial court. Hence, I am of the considered opinion that it is just and proper to impose a sentence of only one day for all the referred offences [relying upon the judgment of the Hon'ble Supreme Court and Hon'ble High Court of Karnataka] i.e., till raising of the court without altering or changing the fine amount imposed for the said offences. Accordingly, I answer Point No.1 and 3 in the Affirmative and point No.2 in the negative.
30) Point No.4: In the result, I proceed to pass the following 38 Crl.A. No.1011/2017 J ORDER The appeal filed by the appellant/accused against the order passed by the XVII ACMM in CC No. 9449/2016 dated 23.7.2016 is hereby partly allowed.
The order of conviction passed by XVII ACMM against the accused for the offences punishable u/s 420, 409, 468, 471 and 477A of IPC is hereby confirmed.
However, the sentence of imprisonment passed by the XVII ACMM in respect of the above said offences i.e., 420, 409, 468, 471 and 477A of IPC is set aside and accused is sentenced undergo simple imprisonment for one day in respect of all the offences together, without modifying the fine of Rs.14,000/- as already imposed by the XVII ACMM.
Accordingly, the accused is ordered to undergo simple imprisonment of one day i.e., till raising of the court.
Hence, in view of this same the trial court i.e., XVII ACMM court is hereby directed to secure the presence of the accused and to order to undergo simple imprisonment of one day i.e., till raising 39 Crl.A. No.1011/2017 J of the court.
Accordingly, the office is hereby directed to send the copy of this judgment along with all trial court records to the trial court with a direction to the trial court to secure the accused and to order undergoing the imprisonment for one day as ordered above.
Accordingly, this appeal is disposed off.
(Dictated to the Judgment-Writer, revised by me personally and incorporated additional paragraphs directly on computer, corrected and then pronounced by me in the open court on this the 12 th day of July 2018.) (Sadashiva S. Sultanpuri) XXI Addl. City Civil and Sessions Judge and Prl. Special Judge for CBI Cases, Bengaluru City.
Digitally signed by SADASHIVA SIDDAPPA SULTHANPURI DN: cn=SADASHIVA
SADASHIVA SIDDAPPA
SIDDAPPA SULTHANPURI,ou=HI
SULTHANPURI GH
COURT,o=GOVERNM
ENT OF
KARNATAKA,st=Karna
taka,c=IN
Date: 2018.07.13
12:55:52 IST