Karnataka High Court
K T Uthappa vs State Of Karnataka on 1 March, 2012
Author: V.Jagannathan
Bench: V.Jagannathan
THEsE APPEALS COMING ON FOR DAY, THE COURT DELIVERED THE EoLLow1Nq:_ A. JUDGMENT
These two appeals arise out of one '1he_pp'sgma3 judgment of the Spl.Jud'ge for Spl.C.C.No.2/2006.
2. Crl.A.No.9t33_A/20.1Ellis ::f:ii'e(l.:l3iy..A2 and A3 and cr1.A.No.835_/2;o»1.o 1;; pp ' "
3. Lchalfvlenge their conviction and in respect of the offences punishaibleir 120-B r/W Sections 467, 463; "409, V4"/7.}A'ianl§1 420 of IPC. So far as A1 and A2 are concerried, they are further convicted the sentenced the offence punishable under Section 13(2) of the Prevention of Corruption Act, L 'i1v9.s8."l
4. The entire case of the prosecution to put it in one sentence is that, in respect of the proposals received from Various Vehicle owners directly, the said proposals
3)/.
34 44553 02.06.04 1611_4'4.=00 35 245453 01.07.04 "
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--. allegations which came in the sou1ce»-- insfoflrnation to the S.P., CB1, Biju Geo-fge Josepli. that the FIR was registered as peggrxll The investigation followed leading to collectin:'g..yol.urninous documents Viz., the cheques, pay- in "'~.cha_l'lans, accounts statements and proposals in regspectsof some of the Vehicle owners and on completion ll oftlie investigation, charge sheet was submitted.
11. Following the accused pleading not guilty to the charge, the piggecution examined PWs 1 to 24 and I 10 170 documents were marked. The accused led evidence in their defence after recording their statements.g'--.._The learned trial judge after appreciating the record, came to the conclusion that the prosecution V' proved its case beyond all reasonahle convicted the appellants as gcmentioned in of the judgment.
12. The sentence T the appellants by the court belwv wasllas' it
1) to convicted ____ H lfundergo simple for months for the it .ofvfe-nice.»':_pun.i_sha.ble U /s 12013 of 1pc.
2) vaccu.sed.:."~7Nos.l to 3 are convicted ll and'V._.sentenced to undergo SI for 8 _ Timonthslior the offence punishable U/s " IPC and shall pay fine of "lle"a?'B§.10,0oo/- each and in default of "line, they shall under go simple imprisonment for 6 months;
3) The accused Nos.l to 3 are convicted and sentenced to undergo SI for 8 months for the offence punishable U/s 468 IPC and shall pay fine of L, / .
1'7 Nos.l & 2 shall undergo SI for 1 year and shall also pay fine of Rs.10,000/ each and in default of payment of fine; they shall undergo s_i§rnpl'e_' 5 imprisonment for 6 months.
It is further ordered that-._ sentences shall run concurrently. The bail bonds of the 1«.ito_'g3_are stand cancelled'.'7.__fl--
13. Assailing t'h'e".Vof.:tlu1e court below, learned cotiiijsgl for A-2 and A-3 and A-1 submitted their arguments' for the CBI supported the judgrne.r1dtv.ofd ' c_onvicti~on and sentence passed by the V. '_ court below. I 'h'ave..p'erused the records of this case. it counsel for A-2, and A~3 at the outset subrnitted that, this is a case where important links are missing in the prosecution case and in the " of the evidence on record, the trial court could not ..,_l"iave convicted the appellants. Referring to the Witnesses' evidence, submission made is as under:
*3 \i., .2/.
"I :5 who ought to have been examined in respecte'.._o'f._Vthe policies referred to in the charge sheet;;""'2x§zfe_:Vre_'i. examined and therefore, the evidence on recorder, by the prosecution itself is in:c_omplete43toA.es-tablishfits case against the accused.7 -Referring to tVh'el..&e:zidericel of PW-7, it is argued that, the saidiu-ritness stated that, in the inspection co.n:ducted.j'p' no differences were noticed from Au.gust::200l'xto 112605.
17. prosecution case is that,fthe"--prose:cVutio'i'1i.:'is able to establish the connection V between'«.__f"ch~eques produced and the corresponding numbers. Though PWS-17 to 21 ' were' e.XVami.ned bywthe prosecution, their evidence does case against the accused beyond all rea.sonvabl:ei'..* doubt. In the policies produced by the proselcvuttion, the Development Officer/agent code is «,.mentioned and so also the naines of the accused 2 and and a look at the said policies will not go to show that the accused had forged the said policies. In other words, the prosecution ought to have placed the original W. l .
vo {L ;;i_otp_ J5 policies indicating the direct code and along that, the forged document should have been placed.-«j'Nsu,ch evidence is forthcoming from the prosecu't'ion.:and,'las": such, even if the entire €Vid€I1C€""iS-.aCC§Ept€d,':. it not ' lead to the conclusion that thed'acc--us'edllhadd'~ proposals.
18. Referring Rajendra Naidu, it is argued for A-2 and A- 3 that, regarding the and the witness has also Manager having the power to allow any such super user password for._§pmordificatio.n:,: prosecution has not placed any .A --to"~-.show as to who had modified the code H had access for using the password. In the of there being positive evidence to show that AA'-l._had access to the super user password and that he had modified the code number from the direct business to 'through the agent', the accused could not have been convicted by the court below. E/r
19. In this connection learned counse.l'--.__ also referred to the evidence of PW--23 S.V.S.Naidup,._thVe' poli'ce inspector of CB1, who has admitted in the cross examination that duringjthe"peri--od.;froin Au'gus't 2001 to March 2005, one o. fihivainadapplav Manager and his statement not It is also pointed out frorlithe this vvitness that, even the extract of was not obtained of of daily transaction: has also stated that Regional Office was code and the said witness has been referredlltoilas 14 by PW--23. therefore argued by Sri. S.K. Venkata Reddy when there is no evidence to show as to who was having access to the super user password and eyetry year audit also revealed that there are no irregularities and there being absence of material to show that the accused had changed the code number from direct to that of agent, in the absence of such ' I missing links in the prosecution case, the court below could not have convicted the appellants. To the above submission, reliance is placed by_.the _ counsel for A-2 and AB on the decisions_--1*e'porte'd:,i1;,MR"' 'V 1981 so. 976, AIR 1961 AP. 495 and' 19,é9d(6)
605.
21. Learned for A-l also contended that, to show that A~l had supper' on the other hand, the. that they were all are several policy "charge sheet, all the policies were' not upr.odu'ced' and marked in evidence and ""eXciepti'ng few of theuvehicle owners, the prosecution has ey'i.dence of the other policy holders to show that even respect of the majority of the policy holders, the saidspolicy holders had sent their proposals directly ".:1n'd"not through the agent.
22. Referring to the evidence of PW 23 S.V.S. Naidu, it is submitted that the said witness has stated } Y'v that he did not record the procedure with regard to use of super user code. It is argued that, thougl1_4l_l'the prosecution had examined 24 witnesses,__-o.nlyfl~-- and PW--22 speak about the proposals in lithe-firth"
vehicles and the evidence of the"1.otl§_er'vvitne'sses come to the rescue of the "prosecu_tionVto':_p'rovej the"? charge levelled againstthe ayc-euised-»persons...Relerring to the evidence of vsubrgnitted that the said witness.' are issued under joint" position, why the signlegdvlthelchelque along with A-1 was not pivdosecutedpl that naturally arises and the prosecutionVhas'--._not' come out with any explanation inv-ifliis-.t.Aregard. H 'Tired Accountant therefore becomes an to throw light on this aspect and the p1'osecutrio1*:. 'has not examined any Accountant in this V connection.
it 23. It was also pointed out from the evidence of l V' "PW-8 Parimala that the cheques regarding payment of commission was used to be issued under the joint a' I9 signatures and A-1 was one of the joint' -s_i'gnva._to'ries} Learned counsel also referred o't._l1er prosecution case which vVer_e»Valso.V'pointed: the"? learned counsel for A--2 and A¥3_.v .
24. As far as is concerned, learned counsel for thxevlevidence of PW-
I, argued. that there is no separaterulesljéforf Insurance Company and the CIA)AAI'--"rul.eIsthoughwere followed, the said rules have notbeen.'Aplaceldibefore the Parliament and no Gazette Nlotifpication Ivas issued. It is therefore cont'eI?;'€1ed.e. in IIthe""'absence of CDA rules having been 'notified._as"1tequired, the said rules could not have been 'made applii_c.able to the United India Insurance Co. and for Ithisgreason, the sanction order therefore will have to Abe-held as bad in law.
25. EX.Dl, which is the Memorandum of Articles of Association of the Insurance Company was also referred to, to contend that it was the Board which has the power to sanctign and therefore PW~l could not Z' V-
have issued the sanction order. The trial court did not appreciate the contentions put forward with rega_rld._V'to the sanction order in proper perspective and_a:lso'«' _ take into consideration the law bearing on " at has been held by the Apex Court._in;fthe AIR 2010 s.c. 259. Thefr'e--fo.re,l arguv¢a.t_/.b;z3 merlfi learned counsel that,V__apart having failed to prove its doubt, even the sanction order and the court below under ought to have acquitted. _ the acctised -_instead (if convicting him.
26.,__ " Sri. C.H. Jadhav for the CBI supported judgrnent of the court below and argued that the niaterial witnesses for the prosecution are fir PW--7 in the course of her evidence has stated v«._t'hat:l;'l she used to feed the applications under the at directions of A-1 and it was A-l who handed over to her °ElXs';AP14l to 146 and therefore, in view of the witness "stating that it was under the direction of A-1 that she had entered the code number as direct business, the % 7] prosecution has therefore proved its reasonable doubt. Although theppprosecut'io.n:"'w only few of the policy holders,:'.._it is.' exaniine all the policy holders, it islidsufficient show that A-1 had and modified the code 'business to agent code. As such,_. found in the prosecution policies or for that policy holders. Since the to A-3, the prosecution has establisheddd and as such, the judgment of p_ contzictiongv pass'cd..__bcyv the court below does not warrant ' .int_erfer.enc_e at the hands of this court.
2.__7§ the light of the aforesaid contentions put forward and decisions cited, whether the prosecution be said to have proved its case beyond all "reasonable doubt so as to justify the conviction of the appellants.
28. The entire case of the prosecution as already stated in the beginning is that, A-1 with the help of A--2 X 'A 22 and A-3 had changed the code number froinrthati direct business to that of the:-agent 'code... applicable in respect of direct is in respect of the agent the bed' 178/780 and 178/830~.__
29. In policie-s:":j§een produced and markednumber of the agent is the names of the Development agent is mentioned in the last page'o__f merely looking at the policies have Vb'een_____marked in evidence, it will not be 'possible.ytoyssay that the code numbers have been tarriperednf modified. The best evidence the prosecution could have placed to support the evidence A 17 to 21 is the register as spoken to by PW-7. ' Since there is a separate register maintained indicating the proposals received directly or from the agent, the absence of producing the said basic document is a serious infirmity in the prosecution case. 9/ , \ 25 was used and it will also show the modification, if any. Except the oral statement of this witnesso,»~_44l_l'othe prosecution has not placed any material to _ oral testimony of PW-- 14.
34. It has come in the} e'v_idenclev_~AAlAof ' S.V.S.Naidu that, one ShiVai'n:adappa"xy_assjhthelvihtlanager V during August 2001 té»Marcillpzoripsfgna neithe} the said person has been has been recorded by of the said person Tserious defect in the prosecutionllietp'iurtherllsvtatement of this witness in thevlllcross "is that the contents of the policy" are entyered into the computer on the date on which issued. In that connection, he has not of the log sheet of the particular day nor the 'account statement in connection with the modification. The investigation also has not been lproplerly conducted is the inference that becomes it Winescapable particularly in the light of What has been elicited in the cross examination of PW--23 and also the %
-.1 having code 178/830 as PW--ll Balakrishna Shastri. The said witness has stated that, he was gettingstphe commission in respect of the transacti.on"*« particular month, in the next month itself" v'If'_inV"respect of the policies referred to perta'i,nir;=_:'ge there is modification of thecode number orflforfigeryp being: . L' committed, the pro;_secutio_nfx:g'ought placed evidence to show as code number into 178/ 830_:an.d were noticed during the V it it the learned counsel for "look at the policies produced before the court' 'does not give the impression that the code nuinbers have been modified or the original direct ..bee'n='ta1npered with. Since the evidence is not fort~hccnming to show as to who had actually changed the code number from that of direct to agent code, the prosecution therefore cannot be said to have proved its it case beyond all reasonable doubt. % /') 28
38. The record also reveals that, in respect one policy holder viz., S.R.Vijaya who was examined 19, the prosecution has produced then: H proposal Ex.Pl5l. Even the said"'dloc'lumenVtv shows the code of the agent Development Officer and thlegigent it are lmelntioned it in the policy. Evenl proposal is also enclosed to Ex.P15l it is direct business, V. been marked in evidence involved in respect of The prosecution therefor has entire material to support its case that, the commission amount mentioned viz.,
-- paid and compared to the total fort-vard by the prosecution, the amount of conamissiori' in respect of S.R.Vijaya being Rs.22.9, the said amount is a trifle when compared to the total Varriount referred to by the prosecution.
39. As regards the proposals Exs.141 to 145 are concerned, as rightly submitted by the learned counsel b '1 29 for A-1, the concerned persons were note and therefore it cannot be said thatfthe"proposalsb'relatehto« the direct business in the absenccplof policy holders coming and b.efore:"_th"eTlcourt ind' that they had taken out thep..polic:y directly; '
40. On 21 close evidence on record, it isto the prosecution has proved!' reasonable doubt as thereiarle the prosecution case and important not been produced. In the absence of V forthcoming to show that A-1 p_ alone had' acce"sst__t_Q.v'the super user code and it was he » had.yu:se-d__ the agent code instead of direct business agbslence of the documents produced by the prolsecuition indicating modification or tampering of the code number by A-1, the question of the prosecution "proving its case beyond all reasonable doubt, does not
- -arise.
41. Now coming to the sanction part of the case, PW--l has deposed inglis evidence that, he issued the 1/ A A 32 rules were not gazetted. The learned not"= consider the aforesaid aspects:=_wh_ilez contentions put forward by the aceused Vinirespe.otm of ' validity of the sanction order_.___l:
44. For the afo1'e11'1lentio_n--ed.v' '_;reasons, the conviction ar_1d=se'_nte1§i_ce;pass'ed"'t.l1-erefore are liable to be interfered order:
. __ are allowed.
sentence passed by the trial 'V relspeet of the appellants stand set appellants are acquitted of the with which they stood Charged. Bail V' shall stand cancelled.
:The fine amounts, if any, deposited shall be 9.3 " _., refunded to the appellants.
4. It goes without saying that the consequence of the acquittal order has to enure to the benefit of the appellants.
Sd/-3 JUDGE Dvr: