Bangalore District Court
State By Cbi/Bsfc vs ) Sri. John Joshua Mathew Alias on 14 December, 2017
IN THE COURT OF XXI ADDL. CITY CIVIL AND
SESSIONS JUDGE AND PRINCIPAL SPECIAL JUDGE
FOR CBI CASES, BENGALURU (CCH-4).
Spl. C.C. No.150/1994
DATED THIS THE 14TH DAY OF DECEMBER, 2017
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.
Complainant: State by CBI/BSFC, Bengaluru
(By Special Public Prosecutor)
V/s
Accused: 1) Sri. John Joshua Mathew alias
J.J.Mathew,
S/o John Mathews,
Previously Manager of
State Bank of Travencore,
Pillanna Garden Branch,
Bangalore,
Now R/o No.7, 6th Cross,
Hutchin's Road,
St.Thomas Town Post Office,
Bangalore-84. (SPLIT UP)
2) Sri. Soudhagar Abdul Basith alias
S.A.Basith, (Dead/Abated)
Aged 56 years,
S/o Mohammed Hussaihn,
Businessman,
R/o No.5, Agha Abbas Ali Road,
Ulsoor, Bangalore.
2 Spl.C.C.No.150/1994 J
3) Sri. Mohammed Yousuff Shariff,
Aged 35 years,
Son of Late M.A.R.Shariff,
R/o No.11, 4th Cross, Anepalya,
Adugodi Post Office, Bangalore.
(By Sri. S.T.Thippeswamy, Adv. for A3)
JUDGMENT
This is a charge sheet filed by the Inspector of Police, CBI/SPE., Bengaluru against the accused No.1 to 3 for the offences punishable under Sec. 120B r/w 420 of IPC and Section 5(2) r/w 5(1)(d) of PC Act of 1947 and Sec.13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 and substantive offence u/s 420 IPC against accused No.2 and 3 and Section 13(2) r/w 13(1)(d) of PC Act 1988 against accused No.1.
2. The brief case of the prosecution are as under: -
(a) On the basis of the source information, the CBI, SPE, Bengaluru have registered an FIR on 31-12-1991 in RC No. 40(S) 91/BLR against the Accused No.1 and 2 for the offence punishable u/s 120B of IPC and u/s 420 of IPC and substantive offence u/s 420 of IPC against 3 Spl.C.C.No.150/1994 J accused No.2 alleging that accused No.1 was functioning as a Branch Manager of State Bank of Travancore, Pillanna Garden Branch, Bengaluru from 25.1.1990 to 2.4.1991. During the said period Sri. I.K. Shaw the accused No.2 along with accused No.1 opened 14 accounts in the names of the different firms that the accused No.2 and his associates as partners/proprietors.
Accused No.1 sanctioned the loans limits up to Rs. One lakh to each of the firms, as within his discretionary powers. The names of the said14 firms are:
(1) Best Videos, (2) Welcome Video Agencies (3) Singer Auto Casette (4) Safari Electronics (5) Maruthi Agencies (6) Audio International Industries (7) Venue Electronics (8) Excel Electronics (9) Specer Enterprises (10) Sun Enterprises (11) Brindavan Enterprises (12) Reliance Electronics (13) Esquire Chittra Video Casette (14) Top Video 4 Spl.C.C.No.150/1994 J
(b) Further as per the said FIR., it discloses that all the units show the business activities as dubbing video cassetes for which working capital requirement would not be to the extent of the said facilities. Most of these units were non-existing and were floated merely for the purpose of availing the loan facility. Accused No.1 sanctioned the loan facility without any proper appraisal of said facts, and knowing fully well that all the said firms were non-existent. Accused No.1 also permitted the accused no.2 withdrawals to the extent of Rs.50,000/- in all the said accounts within a week of the initial sanction of the said loans. Further, as per the said FIR it also alleged that out of the loan proceedings, sanctioned to these 14 units Rs.13.50 lakhs were transferred to the account of one Sri. Srikanth, who was having account with Indian Overseas Bank, Indiranagar Branch Bangaluru. It is further learnt that the transfer of the said fund to Srikanth took place as consideration for the purchase of a house for accused No.2 at Indiranagar. Thus, diversion of funds by the Accused 5 Spl.C.C.No.150/1994 J No.2 took place with the full knowledge and approval of the accused No.1.
(c) On the basis of the said FIR., the Investigating Officer has proceeded for the investigation. During the course of his investigation, the Investigating Officer has recorded the statement of 98 witnesses and collected 860 documents and finally on 31-05-1994 filed a charge sheet against the accused No.1 to 3 as referred above.
(d) In the said charge sheet, it is alleged that accused No.1 entered into criminal conspiracy with Accused no.2 & 3. Further Accused No.2 and 3 in order to cheat the bank and in furtherance of the said conspiracy, accused No.1 by abusing his official position as a public servant granted cash credit facilities to the extent of Rs. One lakh each and withdrawals to the following 23 units in the names of the accused No.2, 3 and their relatives and their employees indiscriminately without observing banking norms and procedures.
The said 22 firms are as under: -
6 Spl.C.C.No.150/1994 J
(1) Bangalore Granites (2) M/s. Royal Interiors (3) M/s. Shabbir Furniture works (4) M/s. Bangalore Timbers (5) M/s. Popular Electronics (6) M/s. Navin Timbers (7) M/s. Ajantha Furniture Works (8) M/s. Bombay Furnitures (9) M/s. Sundeep Furnitures (10) M/s. Diamond Furniture Works (11) M/s. Ravi Industries (12) M/s. Karnataka Engineering Works (13) M/s. Goodwill Furniture Factory (14) M/s. Myfair Furniture Works (15) M/s. Woodsack Furnitures (16) M/s. Dunhill Machines Tools (17) M/s. AK Fabricators (18) M/s. Moti Garment Factory (19) M/s. Hitech Electronics (20) M/s. Alwyn Furniture Works (21) M/s. Praveen Industries (22) M/s. Cosmos Builders
(e) Further, it is alleged that the loans were falsely preferred and granted to the above said units under SSI Scheme. Further it is alleged that as none of said firms are registered as SSI Units either provisionally or 7 Spl.C.C.No.150/1994 J permanently by the Department of Industries & Commerce, Government of Karnataka, Bengaluru. Even the SSI Registration No. furnished by the accused No.2 for his Bangalore Granites is bogus. The residential address furnished by many of the Proprietors/Proprietrix is bogus. Further, it is alleged that except Bangalore Granites all the remaining 21 units are fictitious as they do not exist in the address furnished. Many of the loans are also availed under the misrepresentation of facts and also under the false pretext as to the persons shown as the proprietor/proprietrix of these units and accused No.2 and 3 are only final beneficiaries of all these loans.
(f) Further, it is alleged by the investigating agency that the Unites from Sl. No.2 to 8, accused No.2 stood as a guarantor and also offered his land as a collateral security, for the units from Sl. No.1 to 8. Accused No.3 stood as a guarantor for the units Sl. No.9 to 22 and also offered house sites held by him under GPA as a collateral security. Subsequently, on 8.6.1991, accused No.2 also volunteered to take over the guarantee ship of accused 8 Spl.C.C.No.150/1994 J No.3 in respect of the 14 units from Sl. No.9 to 22.
Except the account of Ravi Industries which was closed on 6.12.1991, the other dues totally amounting to Rs.36,99,408/- in respect of the remaining 21 accounts all are still outstanding and have become irrecoverable and thereby the State Bank of Travancore has been made to suffer wrongful loss to the said extent by the accused persons. Hence, on all these facts, the Investigating Officer has filed a charge sheet against the accused No.1 to 3 as referred above mentioning that accused No.1 is absconding.
(g) On issuance of the summons to the accused, the accused No.2 and 3 appeared and were released on bail. Accused No.1 did not appear. Even after the repeated issuance of NBW against the accused No.1, the presence of accused No.1 was not secured. Hence, as even after the best efforts made by the court, as the presence of the accused No.1 was not secured by this court, my predecessor in office as per the order dated 16.11.1996 has ordered for split up of the case as against accused 9 Spl.C.C.No.150/1994 J No.1 and tried to proceed against the accused No.2 and
3. Accordingly, the split up case was registered against accused No.1 in Spl.CC. No.116/1997. It is also learnt from the records of the said case that the said Spl.CC. No.116/1997 case against accused No.1 was treated as LPR as per the order of the Hon'ble High Court of Karnataka granting permission to transfer the records to LPR vide letter No. RSB/27/2002 dated 30-1-2002. Accordingly, the said case was transferred to LPR as per the order dated 4.2.2002.
3. My predecessor in office after hearing the accused has framed charges against accused No.2 and 3 on 17-12-2002 for the offences punishable u/s 120B and Sec. 420 of IPC .Thereafter proceed to issue summons to the witnesses. 12 witnesses are examined as PW.1 to PW.12 and documents at Ex.P1 to P26 were marked.
4. In the meanwhile, it is reported that the accused No.2 has settled the matter by compromising with the bank and paid the due amount due to the bank before Debt Recovery Tribunal in O.A. No. 794/95 and 10 Spl.C.C.No.150/1994 J O.A. No. 812/1996. As such the State Bank of Travancore, Pillanna Garden Branch, Bengaluru have settled the matter with the accused No.2 and 3.
5. As such an application was filed before the court u/s 227 of Cr.P.C., from claiming discharge of accused No.2 and 3 in view of the compromise with the State Bank of Travancore. My predecessor in office as per the order dated 2.4.2004 has rejected the said application filed u/s 227 of Cr.P.C., by the accused No.2 and 3 for discharge.
6. Being aggrieved by the said order, the accused No.2 and 3 have preferred a Criminal Revision Petition No.559/2004 before Hon'ble High Court of Karnataka. Thereafter the further proceedings of this case are stayed by the Hon'ble High Court of Karnataka. The said Criminal Revision Petition was dismissed as per the order dated 20.5.2008.
7. In the meanwhile, it is reported that the accused No.2 is dead as per the memo filed by the Advocate for Accused No.2 on 26.5.2007. As such it is 11 Spl.C.C.No.150/1994 J ordered that the case against Accused No.2 stands abetted.
8. After the death of the accused No.2 once again the accused No.3 filed application before this court for discharge. In view of the fact that the accused No.3 has also compromised the matter of the State Bank of Travancore and paid the due amount and settled the matter. As per the order of this court passed by my predecessor in office dated 23.12.2008 the application filed by accused No.3 u/s 227 of Cr.P.C., was rejected.
9. Being aggrieved by the said order dated 23.12.2008, the accused No.3 filed a Criminal Revision Petition No. 1369/2008 before the Hon'ble High Court of Karnataka. As such the further proceedings of this case were stayed till the disposal of the Criminal Revision Petition No. 1369/2008 on 20.1.2009.
10. While the Criminal Revision Petition No. 1369/2008 was dismissed by the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka in Crl.R.P. No.1369/2008 order dated 26.1.2009 has made 12 Spl.C.C.No.150/1994 J the following observation in paras-11 and 12 of its order:
-
"11. Be that as it may, it is noticed, as rightly contended by the learned counsel Sri. M.T. Nanaiah, that substantial charge against the petitioner is for the offence punishable under Section 420 IPC and he has been roped along with accused 1 and 2 with the aid of Section 120-B IPC., the copies of the order passed in Company Application No. 795/1995 produced by the learned counsel substantiate his contention that the bank has received substantial amounts from the petitioner in full and final settlement. The letter addressed by the Complainant/Bank Manager dated 10-05- 2001 bears testimony to the fact that the bank has in clear terms offered to compound the offence, subject to permission granted by the court. I am sure the Complainant having offered to compound the offence may not be able to retract its stand.
12. In these peculiar facts and circumstances of the case and in the fitness of things, it will be proper to permit the petitioner and the bank to seek permission of the trial court to compound the offence. I do not find any impediment in grant of such permission by the trial court, merely because the trial is in progress, if they file such application. Therefore, without expressing any opinion on the grounds urged in this petition against the order impugned and the right of the accused to question tenability of the prosecution against him, the petitioner and the bank are permitted to file application before the trial court seeking compounding of offence. If such application is 13 Spl.C.C.No.150/1994 J filed the trial court may consider the same by granting such permission."
Thereafter as per the observation made by the Hon'ble High Court of Karnataka, the accused No.3 has filed application before this court u/s 320(2) & 320(8) of Cr.P.C., along with the complainant bank i.e., State Bank of Travancore, for compounding of the offences and acquit him. My predecessor in office as per the order dated 28.2.2009 has allowed the said application for compounding the offences alleged against accused No.3 and acquitted accused No.3 for the offence punishable u/s 120B r/w Sec. 420 of IPC.
11. Being aggrieved by the said order of this court dated 28.2.2009, the CBI has preferred an appeal in Crl.A. No.107/2010 before the Hon'ble High Court of Karnataka.
12. The Hon'ble High Court of Karnataka as per the order dated 20.1.2016 has allowed the said Criminal Appeal and set aside the order of the acquittal of accused No.3 and remanded the matter to this court. 14 Spl.C.C.No.150/1994 J
13. Further, it is noticed from the proceedings of this court that the entire records were sent to the Hon'ble High Court of Karnataka, in Crl. Appeal No.167/2010. Further, after disposal of the said Criminal Appeal some of the records were not received from Hon'ble High Court of Karnataka as it can be gathered from the order sheet dated 12.2.2016. Even it is also noticed from the order sheet that the original FIR was filed before the I.ACMM Court, Bengaluru was also not received. Therefore, the court has made sufficient efforts by making correspondence with the said courts for getting the said records. In the mean time, as per the order dated 15.2.2017 of this court my predecessor in office has also directed the CBI to produce the copies of missing documents and FIR and other documents so as to write letter to Hon'ble High Court of Karnataka to get permission to reconstruct the said documents. Therefore, the case was proceeded to collect the documents and for reconstruction of the said documents. 15 Spl.C.C.No.150/1994 J
14. In the mean time as accused No.3 frustrated of the prolonging of the case against him. In other words Accused no.3 who could not even get tried in accordance with law since last 25 years, filed application before this court u/s 265(a) to (e) of Cr.P.C., for claiming plea bargaining.
15. This court has convinced the accused No.3 with regard to pros and cons of the pleading guilty and explained and convinced him in detail the provisions of Sec. 265(a) to (e). Even then the accused No.3 adhered to the said plea bargaining application. Thereafter the CBI also filed its reply favorably to the said application of the accused No.3.
16. Thereafter once again the accused No.3 was explained and convinced about the pros and cons of the said plea bargaining and relevant provisions of law, even then once again the accused No.3 adhered to his application for plea bargaining.
17. Thereafter once again this court as per the order dated 30.11.2017 has ordered to the accused No.3 16 Spl.C.C.No.150/1994 J and the learned PP to prepare a mutual satisfactory disposition as required u/s 265(b) and (c) of the Cr.P.C. Accordingly, the accused No.3 represented through his advocate, the learned PP representing the prosecution, were present in the chamber of the Presiding Officer. Once again the pros and cons of the plea bargaining, relevant provision of law were discussed, explained and convinced to the accused No.3 in person.
18. Even then accused No.3 adhered to his pleading guilty and as such, in the presence of the accused No.3 represented through his advocate and learned PP prepared the mutual satisfactory disposition and filed before this court.
19. I have heard the both the sides.
20. In view of the above facts and circumstances of the case, the points that would arise for my consideration are:
1) Whether the Accused No.3 proves that the application under Sec. 265 of Cr.P.C., for claiming plea bargaining is maintainable in 17 Spl.C.C.No.150/1994 J this case for the said offences alleged against him?
2) Whether the Accused No.3 is entitled for leniency in sentencing and levying fine for the offence punishable U/Sec. 120-B and 420 of IPC as prayed?
3) What Order?
21. My findings on the above points are as follows:
POINT No.1: In the Affirmative, POINT No.2: Partly in the Affirmative, POINT No.3: As per final order, for the following REASONS
22. POINT No.1 & 2: - It is undisputed fact that accused No.1 is absconded and accused No.2 dead. Accused No.3 has filed application u/s 265(a) to (e) of Cr.P.C., for pleading guilty. The accused No.3 specifically pleaded in his application that Accused No.2 has paid the entire claim amount of the bank of Rs.25,60,000/- on 17.3.2004 towards the full and final settlement of the State Bank of Travancore. According the said bank has 18 Spl.C.C.No.150/1994 J issued acknowledgment. The said acknowledgment was submitted by the State Bank of Travancore in O.A.No.794/1995 before the Debt Recovery Tribunal on 15.3.2005 and accordingly the said petition was dismissed before the Debt Recovery Tribunal. The accused No.3 has also settled the matter by paying entire dues to the complainant bank on 8.1.2004. Further, accused No.3 pleaded that earlier as per the order in Crl.R.P. No. 1369/2008 (the relevant portion referred above) their Lordships have made observation by permitting this accused to file application for compounding the offence. Accordingly he has filed the application for compounding of the offence alleged against him. Therefore, his application was considered by this court, there after the CBI has preferred an appeal in Crl.A. No. 167/2010 challenging the compounding of offence against him.
23. Now the accused No.3 want to plead guilty more particularly he has pleaded that as accused No.1 absconding and accused No.2 is dead, as such Sec.120B 19 Spl.C.C.No.150/1994 J of I.P.C. is not applicable to him. The accused No.3 has undergone mental agony, harassment as this criminal case is hanging against him since 1991. He has been struggling mentally and monitory wise for all these years. The longstanding criminal case against him has violated his rights. The 2nd daughter of the accused is suffering from cerebral deceased and she cannot sit and stand properly without the assistance of anybody and she has been looking after by accused No.3 only. As such he has lost money and mental peace due to the above case and the family of the accused No.3 also suffered lot of mental agony and immense pressure due to the ailment of his daughter. Therefore, accused No.3 pleads guilty and prayed to show lenience in awarding the sentence by allowing the application for plea bargaining.
24. At the time of filing of the said application and even after the said application, this court has made sufficient efforts to explain and convince the accused with regard to the pros and cons and relevant provisions of law of the pleading guilty and sufficient opportunity 20 Spl.C.C.No.150/1994 J was also given to the accused No.3 to think over once again and again as to whether he wants to plead guilty by way of plea bargaining even then the accused No.3 adhered to it. Accused No.3 also not changed his mind and decided to adhere to his application. The CBI has filed reply favourably to the accused No.3. The CBI has annexed along with its reply, the letter issued by the Joint Director, Head of Zone, CBI, ACZ, Hyderabad, wherein the CBI also favourably considered the statements made by the accused in the said application. Further, the CBI also admitted in their objections (reply) that the accused had not been convicted earlier for the same offence and the offence will not affect the socio economic conditions of the country, and offence alleged against the accused are not punishable for more than seven years, under the circumstances the sufficient grounds for the plea bargaining is available to the accused. Admittedly the offence of cheating is punishable only up to 7 years. Further the CBI also considered that since the case is pending for more than 20 years, the CBI 21 Spl.C.C.No.150/1994 J also may find it difficult to secure the presence of all the witnesses during the trial, if it goes for further trial. By accepting the plea bargaining proposal of the accused, the CBI has argued for conviction of this case. Hence, by accepting the proposal of accused No.3 for plea bargaining u/s 265(a) to (e) of Cr.P.C., would give a positive result in less time with a little effort. Further, it is also pleaded that in view of the fact that as accused No.1 is absconding and accused No.2 is dead and securing of the crucial witnesses after 26 years of registration of the case is difficult one. Hence, the CBI has pleaded as accused No.3 himself approached the court with the petition of plea bargaining. It is advantage to prosecution. Hence, it is also pleaded by the CBI to accept the plea bargaining of the accused No.3 and pass necessary orders.
25. After filing the said reply of the CBI, the court once again called the accused No.3, once again the opportunity was given to the accused No.3 by explaining pros and cons of the plea bargaining and the relevant 22 Spl.C.C.No.150/1994 J provisions of law. Once again the liberty was given to the accused No.3 and if he wants to withdraw the said petition he is at liberty if he minds. But accused No.3 once again adhered to the said application. Once again the accused No.3 has decided to plead guilty by way of plea bargaining. This court as per the order dated 30.11.2017 ordered to be present accused No.3 and the learned advocate for accused No.3 along with learned PP who represents the prosecution. Admittedly, in this case the State Bank of Travancore has already settled the matter with the accused and it has earlier filed the application for compounding the offence. Therefore, this court felt not necessary the presence of the any representative of the State Bank of Travancore. Accordingly, the accused No.3 along with his counsel and learned PP were present in the chamber of the P.O., once again the court has explained the pros and cons of the plea bargaining to the accused. Finally once again as the accused did not change his mind and adhered to the said application. Their after accused No.3 and the learned PP 23 Spl.C.C.No.150/1994 J with the assistance of the Advocate for the accused and the P.O., have disused about the mutually satisfactory disposition. Both parties filed mutually satisfactory disposition. Thereafter I have heard the learned PP and the accused on the sentence.
26. In this regard, the learned advocate for accused filed the affidavit of the accused No.3 for giving reasons as to why the leniency has to be shown in favour of the accused No.3. The learned advocate for accused No.3 also filed a memo along with 6 photographs of the accused No.3 along with his daughter. It is the specific case of the accused No.3 that his 2nd daughter is suffering from cerebral decease and it is brought to the notice of this court when the 2nd daughter of the accused No.3 was just four months baby she undergone heart surgery at that time during the course of operation due to the medical negligence the daughter of the accused No.3 get the brain damage permanently. Since then the daughter of the accused No.3 cannot sit, stand and walk without assistance of anybody, she cannot do anything. 24 Spl.C.C.No.150/1994 J The accused No3 is looking after his daughter and now his daughter has grown up, she is 21 years old. Hence, the accused No.3 claims that he has already suffered mental agony due to the sufferings of his daughter apart from this case. Hence, on all these grounds accused No.3 pleads leniency is to be shown in favour of accused No.3. On the contrary, the learned PP submitted that the court may award any sentence in accordance with law by considering the plea of the accused and also the law laid down u/s 265 of Cr.P.C.
27. In view of the above facts, I would like to discuss further. Sec. 265 of Cr.P.C., has been enacted by the legislatures in order to reduce pendency of the criminal cases. it is a device to ensure that victims receive an acceptable justice in the reasonable time without risking the prospective of hostile witness, inordinate delay and not affordable cost. It helps to ensure that hard crimes are not reward with soft justice because of the pressure of work of the criminal justice apparatus. In other words the plea bargaining is a 25 Spl.C.C.No.150/1994 J complete wing the accused pleads guilty even before going for trial and claims leniency at the time of awarding sentence. Thereby the accused saves time, cost, mental agony that he would have undergone if the trial is concluded. On the contrary the prosecution also benefited as it saved the time of he prosecution and it relieves the prosecution from the pressure and burden on calling the witness and move the evidence by way of trial. As such the prosecution in reward by the plea bargaining by the accused shall have to consider that accused should be given leniency at the time of sentencing. Further, such plea bargaining in a case wherein it saves the time of the court which can be fruitfully used in other important cases. Thereby it helps the court in reducing the pendency of the other criminal cases.
28. Further, admittedly the offences alleged against accused No.3 at present is for the offence u/s 120B and 420 IPC. Admittedly the offence u/s 420 IPC is sentenced up to 7 years. If we consider the punishment to be ordered u/s 120B is in pursuance of 26 Spl.C.C.No.150/1994 J the main offence i.e., Sec. 420 IPC. Therefore, both the sections do not say awarding sentence for more than 7 years. In other words the said offences are not punishable with death or imprisonment for life. Admittedly the said offences are not at all committed against the women or child below the age of 14 years. Further, admittedly the said offences cannot be termed as offence affecting the socio economic condition of the country. Here, at this stage, I would like to further discuss that the said offences may be considered as it affects the socio economic condition of the country with regard to the accused No.1 only who is a public servant. Further, admittedly accused No.3 in the present case on hand is only a guarantor to the borrower i.e., accused No.2. Therefore, even if a charge is framed against accused No.3 for the offences punishable u/s 420 r/w 120 B IPC., I am of the considered opinion that the said offences will not be considered that it affects the socio economic condition of the country.
27 Spl.C.C.No.150/1994 J
29. Further, admittedly the offences alleged against the accused will not fall under any provisions of the Act as notified u/s 265(a) of Cr.P.C. In other words, admittedly the accused No.1 has been alleged for the offences punishable under the Prevention of Corruption Act, 1988. At the cost of repetition, I repeat that accused No.3 is not a public servant and as such the provisions of Prevention of Corruption Act will not be attracted against accused No.3. Therefore, in view of the observation, I am of the considered opinion that the application filed by the accused no. 3 u/s 265(a) to (d) of Cr.P.C., for plea bargaining rightly maintainable in this case. Therefore, when the application of accused No.3 for his plea bargaining is to be considered and in view of the reply submitted by CBI it indirectly gives a power to this court to accept the said plea bargaining. Once, this court decides to accept the plea bargaining pleaded by the accused No.3 as per the memo of mutual satisfactory disposition filed by both the parties. Their by they have given discretion to this court to award sentence to the 28 Spl.C.C.No.150/1994 J accused No.3 in accordance with law. Therefore, I would like to discuss whether the accused No.3 is entitled for leniency of the sentence or fine to be awarded to him.
30. Admittedly, as per the charge sheet filed by the CBI, the FIR has been registered against the accused on 31.12.1991 against the accused No.1 and 2 only. In other words, the accused No.3 was not in picture at the time of filing FIR. Only after due investigation, the prosecution has filed charge sheet against accused No.1 to 3 on 31.5.1994. More particularly during the course of investigation, it has been alleged that accused No.3 even though he was earlier was the principal borrower for the firms of 14 units later on the accused No.2 has took over the said liability of the principal borrower of the accused No.3, therefore the accused No.3 is only a simple guarantor to the accused No.2. Further, it is admitted fact that the Investigating Officer has shown the accused No.1 as absconding accused in the charge sheet itself. After taking cognizance the accused No.2 and 3 appeared before this court. Repeated warrants were issued against 29 Spl.C.C.No.150/1994 J the accused No.1 to secure his presence. Therefore, considerably time has been taken in putting efforts to secure presence of accused No.1. Therefore, the accused No.2 who was sick was not regularly present during the course of enquiry. Therefore, several adjournments have been taken for hearing before charge and for framing charge. That is in other words the charge against accused No.2 and 3 has been framed on 17.12.2002 even though admittedly the charge sheet has been filed on 31.5.1994, i.e. after 8 years of filling charge sheet the charge has been framed against accused No.2 and 3. Further, thereafter on going through the records and proceedings of this court it also reveals that after evidence of PW.1 to 12 the accused No.2 has filed Criminal Revision Petition No.559/2004 against the order of this court for rejection of his discharge application u/s 227 of Cr.P.C. Soon after filing of the said Criminal Revision Petition, the further proceedings of this case were stayed till the disposal of the Criminal Revision Petition on 7.9.2006 i.e., in other words again two years 30 Spl.C.C.No.150/1994 J have been elapsed during the pendency of the said Revision Petition. Thereafter the accused No.2 is died as per the memo filed by advocate for accused No.2 on 26.5.2007. Thereafter the accused No.3 who has compromised the matter with the State Bank of Travancore by payment of his due amount, as such once again the discharge application was filled before this court and the said application was rejected by this court. Again the accused No.3 has preferred a Criminal Revision Petition No.1369/2008 before the Hon'ble High Court of Karnataka, again the proceedings of this case were stayed by the Hon'ble High Court of Karnataka till its disposal on 20.1.2009. In other words again one more year has been elapsed in the proceedings of this case. Further, admittedly their lordships in the said Criminal Revision Petition No. 1369/2008 dated 20.1.2009 have observed at para No.11 and 12 as referred in the earlier pages of this judgment have opined that the accused No.3 along with State Bank of Travancore can file application for the compounding of offence and it is also 31 Spl.C.C.No.150/1994 J opined by the Hon'ble Lordships that the trial court has to grant permission for compounding of offences. Accordingly, accused No.3 along with the State Bank of Travancore filed application before this court for compounding of the offence. My predecessor in office has allowed the said application for compounding of the offences and acquitted the accused No.3. Thereafter accused No.3 felt that he has been relieved from this case. But unfortunately due to his bad luck, the CBI has preferred an appeal against the order of this court of compounding the offence and acquitting the accused No.3, as such Criminal Appeal No.167/2010 was allowed by the Hon'ble High Court of Karnataka and the case was remanded to this court for trial in accordance with law. Thereafter the records were received by this court from the Hon'ble High Court of Karnataka on 12.2.2016, but it is noticed from the proceedings of this case that the documents i.e., D40 to 43, D45 to D49, D53 to D76 were not received along with the said records from the Hon'ble High Court of Karnataka. Thereafter again this case was 32 Spl.C.C.No.150/1994 J proceeded just to collect the said documents from the Hon'ble High Court of Karnataka and even the original FIR was also called from 1st ACMM Court. It was also tired to trace out and collect the said documents from the said courts. Admittedly, till the accused No.3 filed the present application for compounding of the offence still the said documents are not secured. Further, it can be seen from the proceedings and order sheet of this court dated 15.2.2017 as missing documents and FIR were not received from the Hon'ble High Court of Karnataka and 1st ACMM Court, Bengaluru. My predecessor in office has directed the CBI to produce the copy of the said documents and copy of the FIR. Further till the accused filed the present application, the case was proceeded in the same stage. In other words if the accused ought not have filed the present application still some more time could have been lost in getting the said documents or for reconstructing the said documents, after getting proper permission from the Hon'ble High Court of Karnataka. In other words if the accused ought not to have filed the 33 Spl.C.C.No.150/1994 J present application still further time was wasted in just securing and reconstructing of the said documents. Therefore, it cannot be said that the trial of this case could have concluded in a short period of time. Because admittedly there are about 860 documents and 98 charge sheeted witnesses are to be examined. Therefore, when the accused No.3 has preferred to file the present application for plea bargaining, obviously it saved time of this court in leading the said evidence and witnesses and it has indirectly helped the prosecution to conclude this case within a short period. Therefore, when the accused has helped indirectly to the prosecution to conclude this case within short period of time by accepting the plea, thereby I am of the considered opinion that obviously accused No.3 is entitled for some leniency in awarding the sentence.
31. Further, admittedly the accused No.3 has been charged the offence punishable u/s 420 and 120 of IPC. At the cost of repetition, I repeat that as per the observation of their Lordships in Crl. R.P. 1369/2008 34 Spl.C.C.No.150/1994 J dated 20.1.2009 the offence punishable u/s 120B IPC cannot be made applicable to the present accused No.3. In other words as accused No.3 is a mere guarantor; he cannot be said that he has participated in the said criminal conspiracy along with accused No.1 and 2. But admittedly the accused No.3 pleads guilty even for the offence punishable u/s 120B of IPC also. I do consider it is also one of ground to show some leniency to the accused No.3 in awarding of the sentence for the offence punishable u/s 120B and 420 IPC (even though as per the charge framed the offence p/u/s120 IPC cannot be made applicable to the accused No.3).
32. Further, admittedly from the date of filing of the FIR i.e., on 31.12.1991 till this day i.e., December 2017 about 26 years have been elapsed i.e., in other words the accused No.3 has made to suffer physically, mentally since the date of filing of the FIR for about 26 years i.e., still this case is not yet concluded. Therefore, considering the length of period of pendency of this case, if we consider the normal span of life of Indian man as 35 Spl.C.C.No.150/1994 J about 80 years, then present accused No.3 has spent about 1/3rd of his life during the pendency of this case itself. This indirectly depriving the right of the accused No.3 as per the Article 14 of the Constitution i.e., right to live. Therefore, even from this angle, I am also of the considered opinion that the accused No.3 is entitled for leniency in awarding sentence as he pleads guilty voluntarily without any undue influence.
33. Further, it is also the case of the accused No.3 that not only he has suffered physically, mentally and monetarily and due to pendency of this case, his personal life is also miserable one. As per the case of the accused No.3 his second daughter who has undergone surgery when she was just 4 months old baby, due to the medical negligence during the course of operation his daughter got brain damage permanently. As such, since then the daughter of the accused No.3 cannot sit, cannot stand without the assistance of anybody even she cannot do anything independently. Therefore, this accused No.3 who is looking after his second daughter, who is now 36 Spl.C.C.No.150/1994 J about 21 years old girl. The accused has produced photographs wherein it is shown that accused No.3 is feeding his 21 years aged daughter by holding her tightly in his arms. Further, the photographs also go to show that the said daughter of the accused is suffering mentally and lying on the bed. Obviously the unfortunate father who has not only lost the happiness of seeing his daughter growing in a proper manner, he has to made to suffer to look after her daily life from her age of four months till she attain the age of 21 years. Apart from he suffering physically, mentally and physically from this case, he has suffered due to sufferings of his daughter. Therefore, considering the personal life of the accused No.3, this court also does feel some leniency be shown to the accused No.3 at the time of awarding sentence.
34. Further, the learned advocate for accused No.3 has relied upon the judgment in the Criminal Revision Petition No.284/2005 of Hon'ble High Court of Karnataka dated 8.11.2006 between K.N. Babu vs. 37 Spl.C.C.No.150/1994 J State of Karnataka by the Hon'ble Justice H.V.G. Ramesh wherein their lordship have discussed the fact that accused in the said case has pleaded guilty and the Hon'ble their Lordship have observed in the said judgment that as the accused has already deposited a misappropriated amount and sentence of one day i.e., till raising of the court will justify the order. Therefore, the learned advocate for accused No.3 argued that the accused No.3 be shown leniency in awarding sentence. So also the accused No.3 has relied upon a ruling reported in 2017 Crl.L.J. 2269 Supreme Court in CBI vs. Sadhu Ram Singla wherein their Lordships have laid down the following guidelines and principles.
Criminal P.C. (2 OF 1974) S.320 - Penal Code (45 of 1860), Ss. 420, 471 -
Compounding of offences - Settlement between parties - Charge-sheet filed against company, for entering into criminal conspiracy and causing loss to Bank - During pendency of proceedings, however compromise arrived at between Bank and company, under One Time Settlement Scheme of Bank - Continuance of criminal proceedings, after compromise of matter between parties - Amounts to abuse of process of Court.
38 Spl.C.C.No.150/1994 JIn the said judgment, at para-15 their Lordships have observed that:
15. Having carefully considered the singular facts and circumstances of the present case, and also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the view taken in Manoj Sharma's case. (AIR 2008 SC Supp) (171) (supra) and several decisions of this Court delivered thereafter with respect to the doctrine of judicial restraint. In concluding hereinabove, we are not unmindful of the view recorded in the decisions cited at the Bar that depending on the attendant facts, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of Court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties.
Therefore, in view of the observations of the Lordship in the said judgment, the learned advocate for accused No.3 argued that in view of the pendency of the prolonged case, the accused No.3 be shown leniency. 39 Spl.C.C.No.150/1994 J
35. Therefore, in view of the discussion, I do concede that the accused No.3 is entitled for the leniency in awarding sentence. But admittedly the accused No.3 who is also one of the guarantor to the accused No.2, both the have caused loss to the State Bank of Travancore a sum of Rs.36,99,408/- as on the date of commission of the offence i.e., on 6.12.1991. Therefore, even if the accused No.3 is let off by showing a leniency in sentence, I am of the considered opinion that the accused No.3 cannot be given mercy in levying the fine. Further, admittedly the offence alleged u/s 420 IPC is punishable up to 7 years. Therefore, minimum sentence awarded is not prescribed in the said provision. Therefore, considering the facts and circumstances and discussions made above with regard to the showing leniency, I am of the considered opinion that it will meet the ends of justice if the accused is ordered to undergo simple imprisonment for one day i.e., till raising of the court for the offence punishable u/s 120B IPC and 420 IPC. However, as already discussed in paragraph and 40 Spl.C.C.No.150/1994 J accused No.3 is one of the party is causing loss to the tune of Rs.36,99,408/- to the State Bank of Travancore. Hence I am of the considered opinion that the ends of justice will be met if the accused No.3 is ordered to pay a fine of Rs.50,000/- for the offence punishable u/s 420 IPC and Rs.50,000/- for the offence punishable u/s 120B IPC. Further, admittedly as State Bank of Travancore has already received the entire claim amount by way of settlement. Hence I am of the considered opinion that there is no necessary to award compensation to the State Bank of Travancore u/s 357 of Cr.P.C. In view of the above discussion, I answer Point No.1 in the affirmative and Point No.2 partly in the affirmative.
36. Point No.3: In the result, I proceed to pass the following:
ORDER The application filed by the accused No.3 u/s 265(a) to (f) of Cr.P.C., for plea bargaining for the offence punishable u/s 420 and 120B of IPC is hereby allowed.41 Spl.C.C.No.150/1994 J
The accused No.3 is convicted under Section 229 r/w 265(e) of Cr.P.C. for the offence punishable u/s 420,and 120B of I.P.C.
Accused No.3 is sentenced to undergo simple imprisonment for one day i.e. till raising of court and to pay a fine of Rs.50,000/- (Rs. Fifty Thousand only) in default to undergo simple imprisonment for one month for the offence punishable u/s 420 of IPC.
So also the accused No.3 is ordered to undergo simple imprisonment for one day i.e. till raising of court and to pay a fine of Rs.50,000/- (Rs. Fifty Thousand only) in default to undergo simple imprisonment for one month for the offence punishable u/s 120B of IPC.
In total accused no.3 is liable to pay Rs.1,00,000/- (Rs. One lakh only ).
Further, it is ordered that the substantive sentences shall run concurrently Office is her by directed to provide free copy of this judgment to the accused No.3 as required u/s 363 of Cr.P.C., 42 Spl.C.C.No.150/1994 J Further, Office is hereby directed to send copy of the findings of this case to the District Magistrate, Bengaluru as required u/s 365 of Cr.P.C., Office is directed to see that accused No.3 has undergone simple imprisonment for one day i.e., till rising of this court i.e., up to 5.30 PM. If the entire fine amount is paid in accordance with law.
(Dictated to the Judgment Writer, transcribed by him, revised by me personally and incorporated additional paragraphs directly on computer, corrected and then pronounced by me in the Open Court on this the 14th day of December, 2017) (Sadashiva S. Sultanpuri) XXI Addl. City Civil and Sessions Judge And Prl. Special Judge for CBI Cases, Bengaluru City.
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE
PROSECUTION:
P.W.1 Vaikunt Shanbagh
P.W.2 Satish Babu
P.W.3 Ponnuswamy
P.W.4 A.J. Azeez
P.W.5 Krishnappa
P.W.6 L.S. Surendra
P.W.7 S. Palani
P.W.8 Nagaraj
43 Spl.C.C.No.150/1994 J
P.W.9 B. Anantharam
P.W.10 Jayadeva Ballal
P.W.11 K. Balan
P.W.12 R. Rajashekar
LIST OF WITNESS EXAMINED FOR DEFENCE:
NIL LIST OF DOCUMENTS EXHIBITED FOR THE PROSECUTION:
Ex.P.1 Search List dt. 8.5.1992
Ex.P.1(a) Signature of PW.1
Ex.P.2 Loan application dated 1.2.1990 of M/s.
Bangalore Granites.
Ex.P.3 Loan Sanction Letter
Ex.P.4 Cash Credit Agreement
Ex.P.5 Hypothecation and Guarantee Agreement
dt. 3.2.1990.
Ex.P.6 Agreement for hypothecation dt. 3.2.1990
Ex.P.7 Letter dt. 8.2.1990
Ex.P.8 Demand Promissory Note dt. 3.2.1990
Ex.P.9 Loan Appraisal Memorandum
Ex.P.9(a) Relevant portion
Ex.P.10 to Letters dt. 3.2.1990, 3.2.1990, 5.4.1990
12 respectively.
Ex.P.13 Control return
Ex.P.14 & Stock statement for March and April 1990
15
Ex.P.16 to Stock statement for May, June and July
18 1990
Ex.P.19 Account opening form of M/s. Bangalore
Granites dt. 2.2.1990
Ex.P.19(a) Signature of Bank Manager
Ex.P.20 Certified copy of the loan account
statement of Bangalore Granites from 3.2.1990 to 8.6.1992. 44 Spl.C.C.No.150/1994 J
Ex.P.21 Cheques of M/s. Bangalore Granites Nos.
040242 dt. 3.2.1990, 044401 dt. 5.2.90, 044403 dt. 6.2.90, 044402 dt. 6.2.90, 044405 dt. 8.2.90, 04404 dt. 13.2.90, 044406 dt. 26.2.90, 044407 dt. 3.3.90, 044408 dt. 11.4.90, 044409 dt. 20.4.90, 044410 dt. 9.5.90, 044411 dt. 11.6.90 044412 dt. 27.6.90, 044413 dt. 29.6.90, 044414 dt. 17.7.90, 044415 dt. 9.8.90, 044416 dt. 13.8.90 respectively.
Ex.P.21(1) Signatures to 21(17) Ex.P.22 Credit Slips of M/s. Bangalore Granites dt.
28.2.90, 10.4.90. 24.4.90, 2.5.90, 3.5.90, 5.5.90, 8.5.90, 9.5.90, 10.5.90, 11.5.90, 12.5.90, 14.5.90, 16.5.90, 17.5.90, 17.5.90, 18.5.90, 28.5.90, 30.5.90, 16.4.90, 28.6.90, 29.6.90, 9.7.90, 16.7.90, 20.7.90, 24.7.90, 26.7.90, 31.7.90, 7.8.90, 22.8.90 respectively.
Ex.P.22(1) Signatures
to (29)
Ex.P.23(1) Loan application dt. Nil of M/s. Royal
Interiors.
Ex.P.23(2) Appraisal Memorandum
Ex.P.23(3) Loan sanction letter dt. 9.2.90
Ex.P.23(4) Agreement for cash credit dt. 9.2.90.
Ex.P.23(5) Agreement for hypothecation cum
guarantee
Ex.P.23(6) Agreement for hypothecation
Ex.P.23(7) Letter of continuity dt. 19.9.1990
Ex.P.23(8) Demand Promissory Note dt. 9.2.90
Ex.P.23(9) Memorandum of Equitable Mortgage
Ex.P.23(10) Stock Statement of M/s. Royal Interiors for February 1990 Ex.P.23(11) Control Return dt. 15.2.90 Ex.P.23(12) Stock Statement for April to July 1990 of to 23(15) M/s. Royal Interiors.
Ex.P.23(16) Cheques issued by Royal Interiors 044510 45 Spl.C.C.No.150/1994 J to (24) dt. 9.2.90, 044504 dt. 3.3.90, 044506 dt.
28.2.90, 044505 dt. 3.3.90, 044503 dt.
3.3.90, 044509 dt. 10.5.90, 044510 dt.
18.7.90, 044511 dt. 13.8.90, 044513 dt. 28.8.90 respectively.
Ex.P.23(25) Credit Slips (35) dt. 9.2.90, 28.2.90, to 23(59) 21.4.90, 24.4.90, 2.5.90, 4.5.90, 5.5.90, 8.5.90, 9.5.90,10.5.90, 11.5.90, 14.5.90, 16.5.90, 25.5.90, 28.5.90, 30.5.90, 31.5.90, 1.6.90, 4.6.90, 5.6.90, 6.6.90, 7.6.90, 11.6.90, 19.6.90, 22.6.90, 28.6.90, 29.6.90, 2.7.90, 9.7.90, 16.7.90, 20.7.90, 26.7.90, 31.7.90, 7.8.90, 22.8.90 respectively.
Ex.P.23 Certified Ledger Extract of M/s. Royal (60) Interiors for February 1990 to June 1992.
Ex.P.24 Postal Cover Ex.P.24(a) Endorsement of PW.4 Ex.P.24(b) Endorsement of PW.5 Ex.P.25 Postal cover Ex.P.25(a) Endorsement of PW.12 Ex.P.26 Postal cover Ex.P.26(a) Endorsement of PW.12 LIST OF EXHIBITED DOCUMENTS FOR DEFENCE:
NIL LIST OF MATERIAL OBJECTS EXIBITED FOR PROSECUTION NIL (Sadashiva S. Sultanpuri) XXI Addl. City Civil and Sessions Judge, and Prl. Special Judge for CBI Cases, Bengaluru.