Madras High Court
The State vs S.Sukumaran Nair on 26 February, 2015
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.02.2015
CORAM:
THE HONOURABLE MS. JUSTICE R.MALA
Criminal Appeal No.1044 of 2005
The State
Rep by Inspector of Police, CBI
SPE/CBI/ACB
Chennai .. Appellant/Complainant
v.
1.S.Sukumaran Nair
2.M.Anbalagan .. Respondents/Accused 1 & 2
Prayer:
Criminal appeal filed under Section 378 of Cr.P.C., to set aside the order of the Trial Court acquitting the respondents in C.C.No.83 of 1997, dated 25.08.2005 on the file of the Principal Special Judge for CBI cases, Chennai.
For Appellant : Mr.K.Srinivasan,
Special Public Prosecutor (CBI)
For Respondents : Mr.Anantharangan, for R1
Mr.Manoj Sreevatsan, for R2
J U D G M E N T
This appeal has been preferred by the appellant/CBI challenging the judgment of acquittal against the respondents on 25.08.2005 in C.C.No.83 of 1997 on the file of learned Principal Special Judge for CBI cases, Chennai.
2. The case of the prosecution based on the prosecution witnesses is as follows:
(a) The first respondent/A1 S.Sukumaran Nair, a public servant was working as an Assistant Grade II (Cashier), Office of the Joint Manager (Port operations), FCI, Madras during the period from 1980 till his suspension in the year 1988. The second respondent/A2 M.Anbalagan, a public servant was working as an Assistant Grade II (Depot), Officer of the Joint Manager (Port operations), FCI, Madras at E.Ward house in the Harbour from 1979 till his suspension in the year 1988.
(b) While so, during the period between August 1987 and December 1987, A1 and A2 along with some unknown persons entered into a criminal conspiracy to misappropriate the funds of FCI entrusted to A1 as Cashier in charge of Harbour staff payments and in furtherance of the said conspiracy, A1 and A2 prepared false overtime allowance acquittance rolls in the names of the real/fictitious employees and forged their signatures in the acquittance rolls by the abovesaid unknown persons and used the same as genuine and misappropriated money to the tune of Rs.22,321.50 and cheated the Food Corporation of India.
(c) During the relevant period, A1 prepared six false overtime acquittance rolls and A2 prepared nine false overtime acquittance rolls in the names of real/fictitious Harbour staff of the Office of the Joint Manager (Port operations) FCI, Madras for the purpose of fraudulently claiming the overtime allowance. A1 and A2 also forged the signature of P.W.4/Seetha, then Assistant Manger, Pay Bills Section in the said office to make it appear as though the said acquittance rolls were passed by P.W.4/Seetha.
(d) Thus, A1 and A2 abusing their official position and abetted by unknown persons prepared 15 false acquittance rolls and deliberately used these forged documents as genuine and cheated the FCI, Madras and caused wrongful loss to the tune of Rs.22,321.50/-.
(e) On the basis of the source information, the case in R.C.No.6/A/90 was registered by P.W.64/Gopinath, Inspector of Police, CBI/ACB/Chennai against 4 persons including the first accused, Sukumaran Nair under Section 120-B r/w 420, 420, 467, 468, 471 r/w 468 IPC and Section 5(2) r/w 5(1)(d) of Prevention of Corruption Act, 1947. The Investigating Officer, after obtaining search warrants from the competent Court of law, searched the residences of the abovesaid 4 accused persons mentioned in the FIR and during the course of the investigation, the role of A2/Anbalagan came to light.
(f) Though the name of four persons were mentioned in the FIR, it was found that except A1/Sukumaran Nair, the other three persons were not directly involved in the fraud. Hence, after obtaining necessary sanction orders from the competent authority, the final report was filed against the accused.
3. Even though various charges were levelled against the first respondent/A1 under Sections 120-B r/w 409, 420, 467, 468, 471 r/w 465, 477-A IPC and Section 5(2) r/w 5(1)(c) & (d) of P.C.Act, 1947 and Section 409, 420, 467, 468, 471 r/w 465, 477-A IPC and Sections 5(2) r/w 5(1)(d) of P.C.Act, 1947 and Section 5(2) r/w 5(1)(c) of P.C.Act, 1947 and various charges were levelled against the second respondent/A2 under Sections 120-B r/w 409, 420, 467, 468, 471 r/w 465, 477-A IPC and Section 5(2) r/w 5(1)(c) & (d) of P.C.Act, 1947 and Section 420, 467, 468, 471 r/w 465, 477-A IPC and Section 5(2) r/w 5(1)(d) of P.C.Act, 1647 and Section 5(2) r/w 5(1)(c) of P.C.Act, 1947, the Trial Court after considering oral and documentary evidence had acquitted both the accused from all the charges levelled against them.
4. Challenging the judgment of acquittal passed by the Trial Court, the learned Special Public Prosecutor appearing for the appellant CBI would submit that the Trial Court has not considered the evidence of P.W.57/Chandrasekaran and P.W.59/Parameswaran and failed to convict the respondents/A1 and A2 under Section 120-B IPC. The Trial Court has erroneously disbelieved the evidence of P.W.57/Chandrasekaran, on the ground that he was arrayed as an accused at the time of registering the FIR, but subsequently dropped at the time of filing the final report. It is not a valid reason for eschewing the evidence of P.W.57/Chandrasekaran. Further, the evidence of P.W.57/Chandrasekaran is corroborated by the evidence of P.W.59/Parameswaran. While so, the Trial Court ought to have held that the accused is guilt under Section 120-B IPC.
5. Resisting the same, the learned counsel appearing for the respondents would submit that the P.W.57/Chandrasekaran was arrayed as an accused at the time of registering the FIR and to escape from legal action, P.W.57/Chandrasekaran supported the case of the prosecution. The Trial Court has given the reasoning that A2/Anbalagan had visited the office of A1/Sukumaran Nair in the normal course which cannot be viewed as a meeting for hatching conspiracy against them. He would further submit that P.W.57/Chandrasekaran is the higher official of A1 and so, if A2 is an unwanted element who comes to office to meet A1, he could have very well initiated action against A1 and A2. P.W.57/Chandrasekaran himself in his cross-examination has fairly conceded that he had not taken any action against A1 and A2. Hence, the learned counsel for the respondents would submit that the finding of the Trial Court in respect of acquittal under Section 120-B IPC is sustainable.
6. Considered the rival submissions made by both sides. To prove the offence under Section 120-B IPC, the only available witness is the evidence of P.W.57/Chandrasekaran and P.W.59/Parameswaran. It is admitted by both sides that P.W.57/Chandrasekaran has been shown as an accused in the FIR, however in the chargesheet his name has been deleted. It is also an admitted fact that P.W.57/Chandrasekaran is the higher official of both A1 and A2. So, if A2 had visited the office of A1 in abnormal course, P.W.57/Chandrasekaran could have initiated action against them. Further, P.W.59/Parameswaran during the course of his cross-examination had categorically deposed that the employees working in the Harbour Division have to come to J.M.P.O for clarification regarding their payments. It is a common practice for the employees from Harbour Division to come to J.M.P.O. In such circumstances, the Trial Court had rightly disbelieved the evidence of P.W.57/Chandrasekaran, since he is an interested witness because though his name was mentioned in the FIR, it was subsequently deleted from the chargesheet, in order to support the case of the prosecution. Thus, I do not find any reason to interfere with the finding of the Trial Court that the respondents are not guilt under Section 120-B IPC.
7. Now this Court has to decide whether the prosecution has proved that the documents Ex.P.5 to Ex.P.19 has been fabricated or forged by the respondents/accused A1 and A2 ?
The learned Special Public Prosecutor appearing for the appellant/CBI would submit that P.W.3/Rajam and P.W.4/Seetha were examined to corroborate the evidence of P.W.5 to P.W.13, who were working in the bills section during the relevant point of time. They have deposed that they had not prepared the disputed acquittance toll. The Trial Court had disbelieved the version of the prosecution only on the basis of the fact that the duty roaster has not been filed. Hence, the learned Special Public Prosecutor prayed for setting aside that the finding of the Trial Court that the ingredients of Section 468 IPC has not been made out.
8. Resisting the same, the learned counsel appearing for the respondents would submit Ex.P.20 to Ex.P.22 are only the extracts and no reason has been assigned by the prosecution as to why the original register has not been filed before the Court. Furthermore, the duty roaster has not been filed. It is also pertinent to note that P.W.5 to P.W.13 has fairly conceded that they have not prepared the disputed acquittance roll, though they were working in the bills section during the relevant period. That factum was rightly considered by the Trial Court and hence, he prayed to confirm the order of the Trial court.
9. Considered the rival submissions made by both sides. One of the charge that has been levelled against the respondents/accused A1 and A2 is that they had fabricated the documents and thereby committed offence punishable under Section 468 IPC. It is the case of the prosecution that the respondents herein had fabricated Ex.P.5 to Ex.P.19/Acquittance Roll that was marked through P.W.3/Rajam, who was working as Deputy Manager (Personnel and Vigilance). To prove the same, P.W.4/Seetha was also examined. However, she had deposed in her evidence that her signature does not find place in Ex.P.5 to Ex.P.19. So, the evidence of P.W.4/Seetha does not support the case of the prosecution. Further, though the extract of the staff register has been marked as Ex.P.20 to Ex.P.22, it was disbelieved by the Trial Court stating that the originals of those documents had not been filed. With a view to support or corroborate the same, the duty register which is a basic document was not marked. Even though, P.W.15 to P.W.17 and P.W.19 to P.W.55, who are the employees of the FCI were examined to establish the fact that their names were found place in the Ex.P.20 to Ex.P.22, P.W.3/Rajam in her cross-examination has fairly conceded that nearly 1200 employees are working under the Joint Manager Office at that time and so she was not directly aware of the incident. So, the appellant/CBI has not proved that the respondents herein had fabricated the documents Ex.P.5 to Ex.P.19. So, the ingredients of Section 468 IPC has not been made out by the prosecution. The Trial Court has rightly held that the respondents are not guilt under Section 468 IPC.
10. As regards the allegation that the documents Ex.P.5 to Ex.P.19 were fabricated is concerned, the learned Special Public Prosecutor appearing for the CBI would submit that in order to prove Ex.P.5 to Ex.P.19 were concocted or fabricated by A1 and A2, the specimen signature of A1 and A2 were obtained and it was sent to forensic department. P.W.63/Handwriting Expert was also examined. However, the said factum was not considered by the Trial Court and the Trial Court had erroneously held that the signatures of the witnesses P.W.4 to P.W.13, P.W.15 to P.W.17 and P.W.19 to P.W.55 had not been obtained, compared and eliminated and hence, it is unsustainable. So, the learned Special Public Prosecutor prayed for setting aside the judgment of the Trial Court.
11. Resisting the same, the learned counsel appearing for the respondents/accused would submit that even though the Handwriting expert has given Ex.P.212/Opinion and Ex.P.213/Reasoning, during the course of his cross-examination, it was tarnished. Furthermore, the expert opinion cannot be construed as a substantial piece of evidence and it must necessarily be corroborated by some other evidence. However, in the instant case, there is no corroboration. Though P.W.3/Rajam and P.W.4/Seetha supports the case of the prosecution, to prove the elimination, the signatures of the employees viz., P.W.4 to P.W.13, P.W.15 to P.W.17 and P.W.19 to P.W.55 were not obtained and sent to hand writing expert.
12. Considered the rival submissions made by both sides. The case of the prosecution is that the documents Ex.P.5 to Ex.P.19 has been fabricated by the respondents A1 and A2. To prove the same, P.W.4 to P.W.13, P.W.15 to P.W.17 and P.W.19 to P.W.55 were examined. The Trial Court has held that only the specimen signature of the respondent/accused alone have been obtained and sent to forensic department, wherein P.W.63/Narendra Singh investigated the matter along with one S.K.Jain and given Ex.P.212/Opinion and Ex.P.213/Reasoning. P.W.4 to P.W.13, P.W.15 to P.W.17 and P.W.19 to P.W.55 would also state that the signature and writing in Ex.P.5 to Ex.P.19 does not belong to them. In such circumstances, the Investigating Agency had not taken any steps to obtain the signatures and writings of the prosecution witnesses and send them to handwriting experts to find out as to whether the signature and writings that find place in Ex.P.5 to Ex.P.19 belong to them. Furthermore, no reason has been assigned for not obtaining and sending the signature and writings of P.W.4 to P.W.13, P.W.15 to P.W.17 and P.W.19 to P.W.55. But, it is the duty of the prosecution to obtain the specimen signatures of the witnesses and send the same to forensic expert to ascertain whether their signatures find place in Ex.P.5 to Ex.P.19.
13. As per the argument of the learned counsel for the respondents, P.W.63/Narendra Singh has categorically stated that he alone has prepared Ex.P.213/Reasoning personally and independently after careful analysis. He had further stated that the word Balakrishnan has been analysed from the specimen and question document and the same is incorporated in the opinion. However, as already stated, as per the Evidence Act, the expert opinion is not a substantial piece of evidence and it needs corroboration. However, in the instant case, there is no corroborating evidence. So, no reliance can be placed on Ex.P.212/Opinion and Ex.P.213/Reasoning and also on the evidence of P.W.63/Narendra Singh. Thus, the Trial Court has rightly held what is procedure to be adopted while obtaining the specimen signatures from the accused. However, the specimen signatures were not marked in the instant case, which is fatal to the case of the prosecution. As per Section 73 of the Indian Evidence Act, the Court is empowered to compare the disputed signature with the admitted signature with the aid of a handwriting expert. But, here neither the specimen signature has been marked, nor they have putforth what procedure has been followed to obtain the specimen signature from the accused. In such circumstances, I am of the view that the Trial Court has rightly held that the prosecution has not proved that Ex.P.212 and Ex.P.213 are reliable. So, the prosecution has miserably failed to prove that the documents Ex.P.5 to Ex.P.19 are fabricated, beyond all reasonable doubt.
14. As regards the charges levelled against the respondents/A1 and A2 under Sections 409, 420, 467, 468, 471 r/w 465, 477-A IPC is concerned, as already stated, the Trial Court has rightly held that the prosecution has failed to prove that the ingredients of Section 120-B IPC. So, the charge of criminal conspiracy has not been proved by the prosecution. Regarding the charge related to the fabrication of documents is concerned, in the instant case, the charge has been framed under Section 467 IPC. But the documents Ex.P.5 to Ex.P.19 that are alleged to be fabricated are neither the valuable security nor the Will. In such circumstances, I am of the view that the ingredients of Section 467 IPC is also not made out. The Trial Court in paragraph 23 of its judgment has rightly held that the accused have created the disputed acquittance rolls and based on the same they projected the false acquittance rolls as genuine one and encashed the same and thereby misappropriated the amount. Once the appellant herein has failed to prove that the accused A1 and A2 had committed the act of forgery, the offence under Section 465 also fails. Further, the appellant herein has not proved that the documents Ex.P.5 to Ex.P.19 are forged documents. So, the offence of using those documents as genuine documents does not arise. Thus, the offence under Section 467, 468, 477 r/w 465 IPC has not been made out. When once the document itself is not held to be forged, the issue of falsification of accounts and cheating of the FCI does not arise.
15. Furthermore, a charge has been levelled against the respondents under Section 409 IPC. However there is no evidence to prove the entrustment. In such circumstances, I am of the view that the appellant herein has miserably failed to prove the charges levelled against the respondents beyond all reasonable doubt.
16. It is also a well settled dictum of the Hon'ble Apex Court that unless the judgment of acquittal is found to be perverse or suffer any material irregularity, the appellate Court cannot interfere with the finding of the Trial Court. Furthermore, it is also a well settled dictum of the Hon'ble Apex Court that if two views are possible, then the view favouring the accused has to be taken into consideration.
17. Considering all the above aspects, I am of the view that the judgment of acquittal passed by the Trial Court does not suffer any perversity. Hence, I do not find any reason to interfere with the judgment of the Trial Court.
18. In fine,
(a) The Criminal Appeal is dismissed.
(b) The judgment of acquittal passed by the learned Principal Special Judge for CBI cases, Chennai on 25.08.2005 in C.C.No.83 of 1997 is hereby confirmed.
26.02.2015 pgp R.MALA, J.
pgp To
1.learned Principal Special Judge for CBI cases, Chennai
2.The Public Prosecutor, High Court of Madras
3.Record Keeper, Criminal Section, High Court of Madras Crl.A.No.1044 of 2005 Dated :26.02.2015