Bangalore District Court
State By Cbi/Acb vs K.Ananda @ Kebballi Ananda on 8 September, 2022
KABC010172592015
IN THE COURT OF THE XLVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE FOR
CBI CASES AT BENGALURU CITY (CCH-47).
PRESENT: SRI SANTHOSH GAJANAN BHAT, B.A.L., LL.B.,
XLVI Addl. City Civil and Sessins Judge &
Special Judge for CBI Cases, Bengaluru.
DATED THIS THE 08 th DAY OF SEPTEMBER 2022
Spl. C.C. No. 340 /2015
Complainant : State by CBI/ACB, Bengaluru
(By Smt. K.S.Hema,
Sr. Public Prosecutor)
V/s
Accused : 1. K.Ananda @ Kebballi Ananda,
S/o Late K.B. Kempegowda,
Aged about 44 years,
R/o house No.740, 8th cross,
Chamundeshwari Nagara,
Mandya and permanent
R/o Kebballi, Keragodu Hobli,
Mandya taluk & district.
2. H.S. Nagalingaswamy,
S/o Late Shivanna,
aged about 36 years,
r/at D.Halasahalli village,
Malavalli Taluk, Mandya district.
3. Chandrashekar,
S/o Late Puttarajaiah,
Aged about 54 years,
2
Spl.C.C.No.340 of 2015
r/o Chowdeshwari temple,
Hemmanahalli village,
Maddur taluk, Mandya district.
4. H.K. Nagaraja,
S/o Manchaiah @ Karigowda,
Aged about 62 years,
FDA, MUDA, Mandya.
R/o No.80/B, Vinayaka Layout,
Opp. Kaveri Kalyana Mantapa,
Karasavadi, Mandya - 571 401.
5. K.B. Harshan,
S/o Late Byregowda,
Aged about 32 years,
R/at G.Kebballi village,
Near Milk Dairy, Keragodu
Hobli, Mandya taluk and district.
(By Sri.- KL for A.1 & 5; LL/MSC for A.2;
MSP/MP for A.3; CRR for A.4; Advocates)
In Crl. Misc.No.377/2019
Complainant : State by CBI/ACB, Bengaluru.
(By Smt. K.S. Hema,
Sr.Public Prosecutor)
Vs.
Respondents : 1. Sri.K.Ananda @ Kebballi Anand,
S/o Late K.B. Kempegowda,
Aged about 44 years,
R/o house No.740, 8th cross,
Chamundeshwari Nagara,
Mandya.
2. Smt. G.K. Rani,
W/o Sri. K.Anand,
House No.740, 8th Cross,
Chamundeshwari Nagar,
Mandya.
3
Spl.C.C.No.340 of 2015
3. Sri.G.K. Roopesh Kumar,
S/o G.N. Krishne Gowda,
Gunnanayakanahalli,
Dudda Hobli,
Mandya Taluk.
4. Sri. G.N. Javaregowda,
S/o Late Ningegowda,
No.23rd Cross, VV Nagar,
Kallahalli, Mandya City.
(By Sri. K.L. Adv for A.1 to 4)
Date of Offence 27.08.2012 to 15.07.2013
Date of report of offence 05.07.2013
Date of arrest of accused A.1 : 16.07.2013
A.2 : 16.07.2013
A.3 : 05.08.2013 &
03.09.2015
A.4 : 19.07.2013
A.5 : Not arrested
Date of release of accused on A.1 : 30.04.2015
Bail A.2 : 30.04.2015
A.3 : 26.10.2013 &
05.09.2015
A.4 : 21.10.2013
A.5 : After surrender, released
by Court on 10.02.2014 as per
High Court order.
Total period of custody A.1: 1 Year 9 months 14 days
A.2 : 1 Year 9 months 14 days
A.3 : 2 months 21 days &
3 days
A.4 : 3 months 3 Days
Name of the Complainant Dr.H.S. Shivaramu
Date of Commencement of
recording evidence 22.07.2019
Date of closing of evidence 12.08.2022
4
Spl.C.C.No.340 of 2015
Offences complained of under Secs. 120-B, 420,409,
467, 468, 471 of IPC and
Under Sec.13(1)(d) and 13(2)
of Prevention of Corruption
Act, 1988.
Opinion of the Judge Convicted
Date of Judgment 08.09.2022
JUDGMENT
The charge sheet has been filed by the Dy.S.P. against Accused Nos.1 to 5 alleging of committing offences punishable under Secs. 120-B, 420,409, 467, 468, 471 of IPC and Under Sec.13(1)(d) and 13(2) of Prevention of Corruption Act, 1988.
2. It is the case of the Prosecution/Complainant that the Accused No.4 H.K. Nagaraja who was working as First Division Assistant at Mandya Urban Development Authority (hereinafter referred as MUDA) and he had entered into a criminal conspiracy with Accused No.1 K.Anand and Accused No.2 H.S. Nagalingaswamy, Accused No.3 Chandrashekar and Accused No.5 K.B.Harshan and in furtherance of the same during the period between 27.08.2012 to 15.07.2013, when the Commissioner of MUDA, PW.1 Dr. H.S.Shivaramu had directed 5 Spl.C.C.No.340 of 2015 Accused No.4 H.K.Nagaraja to deposit amount of MUDA to an extent of Rs. 5.00 Crores as Fixed Deposit at Indian Bank, Mandya, the Accused No.4 had drawn the cheque in such a manner that the cheque indicated the name of cheque to be in favour of Indian Bank but had left space so as to enter the account number in front of Payee's name. Later on after obtaining the signature of the Commissioner, PW-1 Dr. H S Shivaramu, the cheque was handed over to A-4 Nagaraj to be presented to the Indian Bank, however he had handed over the cheque to A2- Nagalingaswamy and A1 K Anand and the Accused persons had got inserted the account number of M/s. Akash Enterprises for which Accused No.3 was the Proprietor, after obtaining the signature of Commissioner of MUDA. There afterwards the cheque came to be handed over to Accused No.1 who had forged and inserted the Account number and later on it was presented to the Bank. Apart from that, Accused No.3 is also alleged to have issued a letter to the Bank stating that he was Contractor by profession and since he had taken the contractual work of new layout of MUDA the said amount of Rs. 6
Spl.C.C.No.340 of 2015 5.00 Crores was paid to him and requested for its release. On presentation of the cheque, the same came to be honoured and amount was deposited to the account of M/s. Akash Enterprises belonging to Accused No.3. It is further alleged that from the said account several transactions had taken place wherein the Rs.5.00 Crores amount was in turn transferred to the account of Accused No.1 and also to two other accounts i.e. M/s. ARS Pictures, 'A' Square of which Accused Nos.1 and 2 were Proprietors and the amount came to be misappropriated. Subsequently on 22.06.2013 when the Deputy Commissioner of MUDA had requested the Commissioner of MUDA to arrange funds for Developmental Works as such PW.1 Dr. H.S. Shivaramu had directed Accused No.4 H.K.Nagaraja to close the Fixed Deposits which were deposited in Indian Bank. On visiting the Bank it was noticed that no such Fixed Deposits were made on behalf of MUDA and PW.1 Dr. H.S. Shivaramu had visited the Bank and later on he had lodged written information before Mandya West Police station. On the basis of the said complaint FIR came to be registered in Cr. 7
Spl.C.C.No.340 of 2015 No.273/2013 and Investigation had commenced. During the said period of investigation, the complainant therein i.e. PW.1 Dr. H.S. Shivaramu was arrested and remanded to custody and subsequently the investigation was handed over by the Government of Karnataka to specialized Agency i.e. CID. Once again after some time, the investigation came to be handed over to CBI authorities by passing of a special notification.
3. On the receipt of the said Order of transfer of Investigation to CBI authorities, the FIR came to be registered by CBI authorities in RC No.5(A) of 2014. The matter was taken up by PW.32 K.Y.Guruprasad and had commenced with the investigation. During the course of investigation, he had collected the materials which were recovered by the earlier Investigating Officer i.e. MUDA West Police Station who had obtained specimen signature and also samples of handwriting which were sent to FSL Laboratory for the purpose of Scientific examination. Further he had collected the cheques, vouchers and other relevant documents and also the general cash book, remittance register and resolution book pertaining to MUDA and 8 Spl.C.C.No.340 of 2015 also he had recorded the statement of all the witnesses from the Bank including the then Manager PW.3 R.Ramaswamy and PW.2 V.Kathirvel. Apart from that, he had also collected necessary documents pertaining to M/s. Future Well Farm Vet and Estates Private Limited which was being run by Accused No.2 H.S. Nagalingaswamy.
4. On culmination of the Investigation, it was found that the Fixed Deposit receipts which were allegedly made by MUDA and issued by Indian Bank were a forged and it was noticed that two of the Fixed deposit receipts were carrying a same number and other three receipts of Rs. 1 Crore each were carrying a similar FDR number and in fact they were issued on 17.03.2013 which was a Sunday. Apart from that the expert who had examined handwriting and specimen signatures collected during the course of investigation had come to an opinion that the said handwriting matched with the sample writings of Accused No.1. Since Accused No.4 was custodian of cheques and also Fixed Deposit receipts, the Investigation Officer had come to a conclusion that the forged FD receipts 9 Spl.C.C.No.340 of 2015 were kept in the custody of MUDA with the connivance and active aid of Accused No.4 H.K.Nagaraja. Apart from that the amount was transferred from the account of M/s. Akash Enterprises belonging to Accused No.3 to the account of ARS Pictures, 'A' Square, account of K.Anand and also from the account of K.Anand to Accused No.5 K.B.Harshan and there were transactions indicating of transfer of Rs.17 lakhs from the account of M/s. Akash Enterprises to the account of Accused No.5 K.B.Harshan. By verifying all the said aspects, the Investigation Officer had opined that Accused Nos.1 to 5 had entered into criminal conspiracy and in furtherance of the same, the above act came to be committed. Accordingly, necessary charge sheet was filed. The Accused Nos.1 and 2 who were arrested and were remanded to custody during the course of investigation were admitted to bail and likewise on filing of the charge sheet court had perused the materials and since it was noticed that there were sufficient materials to take cognizance and proceed against the accused, necessary cognizance came to be taken by this court. On subpoena the Accused Nos. 1 to 5 10 Spl.C.C.No.340 of 2015 had appeared before the court and they had filed separate discharge applications which came to be dismissed and subsequently the court had come to a conclusion that there were necessary materials to frame charges and accordingly the charges came to be framed. The accused had pleaded not guilty and claimed to be tried. Accordingly the trial was fixed and prosecution in order to prove their case, got examined totally 32 witnesses as PWs 1 to 32 and marked documents as Exs.P.1 to P.235. The statement of the accused was recorded as contemplated under section 313 of Cr.P.C. wherein they had denied all the incriminating materials available against them. Accused No.3 had filed written statement at the time of recording his 313 Statement. The accused persons have submitted that there were no defence evidence and accordingly the case was posted for arguments on merits.
5. The learned Sr. Public Prosecutor has vehemently argued that the entire case of the prosecution rests on circumstantial evidences and as such the circumstances which are to be appreciated is that the Accused No.3 Chandrashekar 11 Spl.C.C.No.340 of 2015 had opened an account in the name of M/s Akash Enterprises in the year 2012 by furnishing KYC documents. It is her next submission that the entire concept of conspiracy was hatched up by accused Nos.1 to 5 and in furtherance of the same they had included accused No.4 who was working as FDA at MUDA and he had suggested to the then Commissioner PW.1 Dr. H.S. Shivaramu to make a deposit at Indian Bank though at an earlier incident they had deposited at Bank of Baroda. It is also been submitted by her that an advertisement letter allegedly issued by Indian Bank was procured by fabricating the same and was handed over to the Commissioner i.e. PW.1. That apart on finding that the FD was matured, the Commissioner of MUDA had directed Accused No.4 H.K. Nagaraja to prepare necessary records for depositing the said amount of Rs. 5.00 Crores as fixed deposits at Indian Bank. It is submitted by her that the evidence of PW.1 would indicate that it was the Accused No.4 who had suggested to make a fixed deposit of Rs. 1 Crore each at Indian Bank so as to help the authority in raising loans. However in order to indicate the overt act of the accused, the 12 Spl.C.C.No.340 of 2015 learned Sr. Public Prosecutor has requested the court to taking into account about the incidents that had taken place in seriatim. Firstly she has argued that, in the year 2012 the account in the name of M/s. Akash Enterprises came to be opened by Accused No.3 Chandrashekar and subsequently the Accused No.4 had suggested the Commissioner of MUDA, PW.1 Dr. H.S. Shivaramu to make Investment at Indian Bank on the basis of the requisition which was given by the Bank authorities which indeed was a forged and fabricated document created at the behest of Accused No.2 Nagalingaswamy. There afterwards the learned Sr. Public Prosecutor has argued on 08.02.2013 the Commissioner of MUDA had directed the office create a Fixed deposit of Rs1 crore each to be made in the name of MUDA at Indian Bank and necessary office notes were also made in relevant cash and general Book register made by MUDA at Ex.P.10 and Investment Register at Ex.P.9 would indicate of direction issued by the Commissioner to keep the amount as Fixed deposit at Indian Bank. Subsequently again in the month of March 2013, three other investments of Rs.1 Crore each came 13 Spl.C.C.No.340 of 2015 to be made to the very same Bank. It is submitted that at the time of obtaining the signature of the Commissioner of MUDA on the cheques, the Payees name was mentioned as Indian Bank but subsequently the account number came to be inserted. As per the complaint at Ex.P.19, it indicates that after keeping the Fixed deposit, the accused No.4 H.K. Nagaraja who is the First Division Assistant and also the Accounts Incharge who was entrusted to look into the accounts of MUDA as per the work allotment made to him on 30.01.2013 as per Ex.P.27 clearly indicated that he was custodian of accounts and subsequently he had brought to the notice of the Commissioner of MUDA about depositing the amount at Indian Bank. Subsequently on 09.05.2013 the fixed deposit had matured and it was brought to the notice of the Commissioner only on 22.06.2013 which causes serious suspicion over the Act of accused No.4. It is also been argued that when the Commissioner of MUDA had issued directions to accused No.4 H.K. Nagaraja to close the fixed deposit and to get proceeds to the account of MUDA, A 4 H K Nagaraj had not complied the 14 Spl.C.C.No.340 of 2015 same on the very same day but subsequently sent on 02.07.2013. Only then the Bank authorities had intimated that no such Fixed deposit was made with the Bank, and as such the fraud came to be detected. It is the case of the prosecution that the Accused No.4 had acted against the interest of the MUDA by colluding with other accused persons and instead of handing over the Cheque to the Branch Manager, he had handed it over to accused Nos.1 and 2 who in turn had got inserted the account numbers in the cheques at Ex.P.4, Ex.P.5, Ex.P.11, Ex.P.12 and Ex.P.15. Further it has been argued at length by learned Public Prosecutor that impugned cheques were honoured since the letter came to be issued by accused No.3 stating that he had carried out works for MUDA. Nextlly, it is submitted that on receiving the amount it was transferred into the accounts pertaining to A Square, ARS Pictures belonging to accused No.1 K. Ananda @ Kebballi Ananda and accused No.2 Nagalingaswamy and from there it was re-transferred into various other persons account including the account of accused No.5 K.B. Harshan. Under the circumstances, it is her 15 Spl.C.C.No.340 of 2015 submission that the entire act would indicate that they had hatched up a conspiracy since always the conspiracy will be hatched in darkness and will be executed, the overtact of accused persons is required to be looked into, on the basis of the materials which is gathered during the course of investigation. She has also argued that the handwriting of accused No.1 had matched with that of the Specimen handwriting, that the insertion made in the cheques mentioned above and also in the Fixed deposit receipts. It is also her submission that the 5 FD receipts which were produced to the MUDA were not genuine and were of forged documents. That apart the Signature of PW.3 R.Ramaswamy found on the forged FD receipts was certified to be not genuine. The impression of seal and also insertion of Power of Attorney member on the FD receipts also clearly indicated that it was a forged and fabricated documents. Even the Handwriting expert who was examined as PW.31 Syed Asgar Imam has clearly deposed before the court that the Writings and Signature of accused No.1 K. Ananda @ Kebballi Ananda on the cheques was matched and also the 16 Spl.C.C.No.340 of 2015 signature of accused No.3 on the letter issued to the MUDA at EX P 93 claiming that he had made certain contract works as such the amount was to be deposited to his account would clearly indicate the hatching of conspiracy. It is also argued by the learned Senior PP that if the cheque was handed over to accused No.4 then how the same came to be handed over to the other accused persons is a question which requires to be considered by this court. Under the circumstances, it has been argued by her that the prosecution has proved the guilt of the accused persons beyond reasonable doubt and also when the matter is considered along with the other incriminating materials it would indicate that the accused persons had filled up the cheque by inserting the account number after obtaining the signature of PW.1 Dr. H.S. Shivaramu on the cheques and had got it encashed and later on the proceeds was transferred to their names. Further she has argued that accused No.4 had breached the trust which was reposed upon him and likewise accused No.1, accused No.2, accused No.3 and accused No.5 had colluded with accused No.4 to hatch the conspiracy and in 17 Spl.C.C.No.340 of 2015 furtherance of the same, when the cheque was required to be presented to the Bank they had inserted the account number of M/s. Akash Enterprises in the cheque and they had got it presented to the Bank. After presentation, they had utilized the amount and thereby Provisions under Secs. 468, 471 and 420 r/w 409 of IPC and Sec. 120-B of IPC came to be established. Since accused No.4 being a Government servant had intentionally derelicted in discharging his duty, the provisions under Sec. 13 (2) r/w Sec.13 (1)(c) and (d) of Prevention of Corruption Act was attracted. Accordingly, she has sought for convicting the accused persons.
6. Learned counsel for Accused No.1 has vehemently argued that the submission of learned Sr. Public Prosecutor with respect to proving the guilt of accused persons is totally baseless and the entire materials would not indicate any materials against the Accused persons. Firstly it is his submission that the Court has to consider whether a criminal conspiracy was hatched by accused persons and whether they had committed the offences in furtherance of the same. It is his 18 Spl.C.C.No.340 of 2015 submission that the complaint at Ex.P.19 would clearly indicate that the complaint at the inception was lodged by PW.1 Dr. H.S. Shivaramu and in the complaint more particularly in Page No.2 he has specifically stated that he himself had handed over the cheques to the then Manager PW.3 Ramaswamy. As such it is his submission that how the meeting of minds and hatching up of conspiracy is established by the prosecution. Consequently, he has argued that no where the prosecution are able to point out that how the cheques were placed in the hands of accused No.1 or in what manner he had come in contact with the said cheques. It is also been submitted at length that no documents were recovered and also the Investigation Officer had admitted during the course of his evidence that he had not collected any documents from PW.17 T.K. Nagaraju with whom it is alleged that accused No.1 K.Ananda had returned a sum of Rs.30 lakhs. The learned counsel has also argued that during the course of his cross-examination PW.17 had submitted that the said amount was issued by Accused No.1 towards demolition of his house. It is his submission that for the sake of arguments if 19 Spl.C.C.No.340 of 2015 the said contention is accepted to be true and correct, it is to be appreciated that for demolition work there would not be any necessity for issuance of cheque to an extent of Rs30 lakhs. Accordingly, it was a duty casted upon the prosecution to establish the said fact and if at all really demolition of house was made by PW.17, then nothing prevented the Investigation Officer to collect documents. Apart from that he has also argued that the evidence of PW.22 N. Shivaprasad on whom the prosecution is intending to rely upon to establish the fact of lending amount to accused No.1 K. Ananda and also transfer of certain amount has failed to prove the connection between the said witness and Accused No.1 K Anand. The Learned counsel has read out the deposition of PW.22 Shivaprasad who has deposed that he became acquainted with accused No.1 K.Ananda through Accused No.3 Chandrashekar who was Priest at Chowdeshwari Temple of Maddur Taluk. It is the specific evidence of PW.22 that through Accused No.3 Chandrashekar, accused No.1 was introduced to him and since accused No.1 K.Ananda had stated of indulging into mining business several 20 Spl.C.C.No.340 of 2015 amount was lended to him. However at the time of its repayment a cheque drawn on M/s. Shree Shakti Souharda Credit Co-operative Society Limited at Indian Bank, Bengaluru came to be issued. It is his arguments that the prosecution has failed to establish from whose account accused No.1 K.Ananda had issued the cheque drawn on M/s. Shree Shakti Souharda Credit Co-operative Society Bank. In the absence of any such material, the contention of prosecution of transferring the amount by accused No.1 which was ill-gotten from the MUDA account to the account of PW.22 was unreliable. It is also been submitted that no proper authorized persons were examined on behalf of Co-operative Society and also the Learned counsel for accused No.1 has seriously raised a question mark over the manner in which the business is being carried out by the aforesaid Co-operative Society. It is his submission that prior to the incident, the registration of the Co-operative Society came to be cancelled by the competent Registrar of Co-operative Society and as such the submission cannot be accepted. Even he has pointed out to the Cross-examination of PW.22 wherein he has 21 Spl.C.C.No.340 of 2015 deposed that there were documents to indicate of lending loan to accused No.1 to his account at M/s. Likith Link Lines Services; however the same was not recovered by the Prosecution. It is his submission that unless the said documents are produced, the same cannot be readily accepted by the court. Apart from that he has pointed out to the evidence of PW.7 S.Praveer, who has deposed during the course of cross- examination that some person had issued the cheque. Under the circumstances, it is not established that who had issued the cheque, how it came to be issued and who had filled up the cheque in favour of S.Praveer. Lastly, it is his submission that no witness were examined by the prosecution to prove that the sample signatures and also the specimen handwriting which was collected by the earlier Investigation Officer of Mandya West Police station, Mandya was in accordance with law. It is vehemently argued that unless the recovery of documents is proved and also the specimen signatures were obtained by the Investigating officer in accordance with law, the opinion furnished by the Handwriting expert who was examined as 22 Spl.C.C.No.340 of 2015 PW.31 Syed Asgar Imam would be of not much relevance. Under the circumstances, he has concluded by submitting that firstly the prosecution has failed to establish the conspiracy alleged to have been hatched up by accused persons and also they have failed to prove that the cheque was handed over to accused No.1 who in turn had submitted it to the bank and later on the amount was transferred to his account and was utilized by him. Accordingly, he has sought for acquitting the accused No.1.
7. Sri. M.S, Learned Counsel appearing for accused No.2 has vehemently argued that no overtact is attributed against the present accused No.2 Nagalingaswamy. Firstly it is his submission that the entire case of the prosecution which rests on circumstantial evidence does not indicate how accused No.2 had a positive role played in the entire case. He has pointed out to the case of prosecution wherein it has been contended that accused No.2 Nagalingaswamy used to visit the office of MUDA and there he had visited the chambers of PW.1 Dr. H.S. Shivaram. However, the materials which is produced 23 Spl.C.C.No.340 of 2015 before the court does not indicate of such an event and it is submitted by the Learned counsel for accused No.2 that unless the identity of accused No.2 visiting the office is established the other aspect of he colluding with other accused persons and hatching of conspiracy cannot be accepted. It is also been submitted by the Learned counsel that during the course of chief-examination of PW.3 R.Ramaswamy he has feigned his ignorance with respect to identity of accused No.2 Nagalingaswamy. If at all the court considers the complaint at Ex.P.19 it would indicate that at the time of delivering the cheque to the Manager accused No.2 Nagalingaswamy was also present in the office. However, the entire evidence does not indicate that whether accused No.2 Nagalingaswamy was present at the time of alleged handing over of cheques to the Manager of Indian Bank. It is submitted that the prosecution has to establish firstly whether the cheques were handed over in the presence of accused No.2 which they have failed to do so and also he has submitted that PW.28 who is the alleged employee of accused No.2 in his business venture M/s. 24
Spl.C.C.No.340 of 2015 Futurewell Agro Vet and Estate Private Limited has deposed that he was working as Assistant Facility Manager and he had encashed the cheque at Ex.P.167. However during the course of his cross-examination the witness has specifically admitted that no where his identity is disclosed in the cheque by furnishing the mobile number or he had produced any KYC documents. As such the marking of cheque Ex.P.167 is of not much relevance and also it is argued that no document was produced in order to justify the same. Further it is been argued that PW.6 N.H. Chikkanna has also admitted that no proof were produced with respect to production of documents and also the evidence of PW.8 Jayaram was not established by producing necessary proof. It is also been submitted that as per the case of prosecution PW.28 was working under accused No.2 Nagalingaswamy in his above mentioned firm. However, no materials were produced to show that accused No.2 had indeed owner of M/s. Futurewell Agro Vet and Estate Private Limited. Unless the same was established all other materials were not sufficient to establish the chain of link. Lastly he has also 25 Spl.C.C.No.340 of 2015 referred to the evidence of PW.30 K.M. Shivaraju who was deposed that he was working as Driver wherein he had supplied his car to PW.1 H.S. Shivaram on outsourcing basis when he was the Social Welfare Officer at Mandya and also in his chief- examination he has deposed of having acquainted with Accused No.2 Nagalingaswamy who used to visit the office of PW.1 Dr. H.S. Shivaram. It is pointed out by the learned counsel for Accused No.2 Nagalingaswamy that as per the case of the prosecution Accused No.2 and PW.1 Dr. H.S. Shivaram were remanded to Mandya Jail, at that time a letter was issued through the hands of PW.30 Shivaraju by accused No.2 Nagalingaswamy as per Ex.P.25, wherein he had narrated that PW.1 Dr. H.S. Shivaram was innocent and the same was to be intimated to him. Another letter was allegedly issued by accused No.2 addressed to Superintendent of Police, Mandya as per Ex.P.26 wherein he had stated that Shivaraju was innocent and he had not committed any mistake. It is the submission of Learned counsel for accused No.2 that the said document itself is inadmissible since it amounts to extra judicial confession 26 Spl.C.C.No.340 of 2015 which has no santity under the eyes of law. The Learned counsel for accused No.2 has argued at length that even if the said document at Ex.P.25 and P.26 are accepted the same will not lend any assurance to the case of prosecution since a co- accused cannot exonerate another accused person. Lastly the Learned counsel for accused No.2 has relied upon the evidence of Investigation Officer and he has pointed out that the Investigation Officer had admitted of not tracing the mobile number which was mentioned on the over leaf of cheque of Ex.P.167 which was drawn by accused No.2 through PW.28 Venkatesh Prasad. By pointing out all the said aspects, the learned counsel for accused No.2 has submitted that accused No.3 is an innocent person and hence he is entitled for the order of acquittal.
8. Accused No.3 has vehemently contended that he is an innocent person and he has not committed any offence. The arguments of Learned counsel for accused No.3 can be classified as under wherein it is submitted that though accused No.3 Chandrashekar had opened a Bank account in the name of 27 Spl.C.C.No.340 of 2015 M/s. Akash Enterprises for which he is a Proprietor he cannot be convicted for utilizing the money which was deposited into his account since a duty was casted upon the Branch Manager to intimate his higher authorities whenever the amount of more than Rs. 10 lakhs was credited or withdrawn. He has also argued at length that Commissioner of MUDA i.e. PW.1 Dr. H.S. Shivaram was solely responsible for the entire fraud in fact the evidence would indicate that he had handed over the cheque to the hands of PW.3 R. Ramaswamy and as such the amount came to be credited to the account of Accused No.3 Chandrashekar. The Learned counsel has also argued that if at all accused No.3 had any intention to cheat and defraud he would have utilized the entire amount for himself or majority of the huge amount which was deposited to his account, however no such materials are forthcoming. The Learned counsel has also argued that the entire evidence indicates that the amount which he had utilized was meager amount and as such the contention of prosecution of involving in the conspiracy cannot be proved. He has also pointed out to the statement recorded 28 Spl.C.C.No.340 of 2015 under section 313 of Cr P C, wherein he had taken up a specific defence that the signed cheques were obtained by accused No.1 and accused No.3 was unaware of any of the transactions that had taken place in his account. In order to point out the finger against Dr. H.S. Shivaram he has produced two Judgments of the Hon'ble High Court of Karnataka, wherein the complaint which was initiated at the behest of PW.1 Dr. H.S. Shivaram came to be quashed by the Hon'ble High Court of Karnataka. By pointing out the same, learned counsel has lastly submitted that throughout his entire carrier, he was in the habit of lodging cases against some or the other persons to cover up his ill- deeds. By pointing out the same, he has sought for acquittal of accused No.3.
9. Sri. CRR Advocate on behalf of accused No.4 has vehemently argued that no other materials were produced before the court to indicate the overt act of accused No.4 who was working as FDA at MUDA. Firstly, it is the submission of the Learned counsel that accused No.4 had a very limited role to play in the above case as he was only discharging the duties 29 Spl.C.C.No.340 of 2015 which was entrusted to him by his superior i.e. PW.1 Dr. H.S. Shivaram. It is also been submitted that the entire case indicates that the accused No.4 H.K. Nagaraj had discharged his duty diligently and in fact the work Register, General Cash book indicates that the fixed deposit was made as per the Order of the Commissioner of MUDA. Further the FD receipts were kept with the custody of the Commissioner and even a note was prepared by accused No.4 H.K. Nagaraja indicating the receipt of FD receipts from the Bank. By pointing out the same, it is the submission of Learned counsel for accused No.4 that how a liability can be fastened against accused No.4 when he had received the FD receipts and that too when he had brought the same to the notice of the Commissioner of MUDA. Learned counsel also had pointed out to the complaint at Ex.P.19 wherein the Commissioner of MUDA himself had admitted of handing over the cheques to the Manager PW.3 Ramaswamy. If the version in the complaint is to be accepted and believed, the case of the prosecution that the crossed cheques favouring Indian Bank drawn by MUDA and handing over it to Accused 30 Spl.C.C.No.340 of 2015 No.4 Nagaraj will be falsified. Under the circumstances, the first step of sending the cheque through accused No.4 itself was not established and hence he has sought for acquittal of accused No.4.
10. Accused No.5 K.B. Harshan has adopted the arguments of accused Nos.1 to 4 and has submitted that the prosecution has utterly failed to indicate any overt act and hence he is entitled for acquittal.
11. On the basis of rival contentions submitted by both the parties, the points that would arise for my consideration are as follows:-
1) Whether the prosecution proves beyond reasonable doubt that the act of the competent authority in according sanction to prosecute accused No.4 H.K. Nagaraja is valid and justified?
2) Whether the prosecution proves beyond reasonable doubt that accused Nos. 1 to 5 had entered into a criminal conspiracy to do an illegal act or an act which is not illegal by illegal means and in furtherance of the same during the period from 2012 to 2013 had not opened an account at Indian Bank, MUDA in the name of M/s.
Akash Enterprises for which accused No.3 was the Proprietor and with a 31 Spl.C.C.No.340 of 2015 dishonest intention accused No.4 H.K. Nagaraja who was the Accounts Incharge of MUDA had obtained cheques for depositing the amount to an extent of Rs.5 Crores in the name of MUDA, Indian Bank, Mandya and later on with the conveyance of accused Nos. 1 and 2 had introduced the account number of M/s.
Akash Enterprises and got the amount credited to their account and thereby committed an offence punishable u/S. 120-B r/w 420 of IPC?
3) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period accused Nos. 1 to 3 and 5 had got the amount of MUDA credited to the account of M/s. Akash Enterprises by way of 5 cheques to an amount of Rs.5 Crores and accused No.4 being the public servant and custodian of accounts of MUDA had supported other accused persons thereby committed a criminal breach of trust punishable u/S.409 of IPC?
4) Whether the prosecution proves beyond all reasonable doubt that the accused persons in furtherance of their criminal conspiracy and dishonest intention had got the amount credited to the account of M/s. Akash Enterprises by inserting the number illegally after being drawn in favour of Indian Bank by the Commissioner, MUDA towards FD and had utilized the said amount knowing fully well that the amount was to be credited as fixed deposit and thereby had 32 Spl.C.C.No.340 of 2015 committed an offence punishable u/S.420 of IPC?
5) Whether the prosecution proves beyond all reasonable doubt that the accused Nos.1 to 3 and 5 with the conveyance of accused No.4 who was working as FDA in Accounts Section of MUDA had prepared record slips of 5 cheques pertaining to Rs. 1 Crore each and by inserting the account number had got the cheque amount transferred to the account of M/s. Akash Enterprises, belonging to accused No.3 knowing fully well that the said insertion was illegal and as such they have committed the offence punishable under Secs.467 of IPC?
6) Whether the prosecution proves beyond all reasonable doubt that the accused Nos. 1 to 3 and 5 during the said period 2012 to 2013 created fake FD receipt and fake acknowledgment of Indian Bank and handed over it to accused No.4 who had received the same knowing fully well that it was not original and fake and retrieved the same in the original case files of MUDA and thereby committed the offence punishable under Secs.468 r/w 120-B of IPC?
7) Whether the prosecution proves beyond all reasonable doubt that the accused persons with a dishonest intention had received the forged 5 FD receipts of 1 Crore each as genuine and made a note in the relevant register indicating it to the 33 Spl.C.C.No.340 of 2015 genuine document with a dishonest intention and thereby committed the offence punishable under Secs.471 of IPC?
8) Whether the prosecution proves beyond all reasonable doubt that the accused No.4 being the public servant and incharge of accounts and establishment to MUDA had entered a criminal conspiracy with accused Nos. 1 to 3 and 5 and by abusing his position as public servant with a dishonest intention has obtained valuable thing without any public interest or help other accused persons to gain pecuniary advantage without public interest and caused loss of Rs.5 Crores to MUDA and thereby committed an offence punishable u/S.13(2) R/w Sec.13(1)(c) & (d) of Prevention of Corruption Act, 1988?
9) Whether the Investigating Officer has made out grounds for confiscation of properties mentioned in the schedule annexed to the Petition filed by him in Crl Mis 377/2019?
10) What Order ?
12. My findings on the above points are as under:-
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: In the Affirmative Point No.6: In the Affirmative 34 Spl.C.C.No.340 of 2015 Point No.7: In the Affirmative Point No.8: In the Affirmative Point No.9: In the Affirmative Point No.10: As per the final order for the following:-
R E A S ON S
13. POINT No.1 :- In the instant case, the prosecution has contended that the accused No.4 - Sri.H.K.Nagaraj was working as F.D.A. at MUDA and as such, the competent authority to accord sanction was the Commissioner of MUDA, who was also the competent person to remove the said public servant. The prosecution has further contended that necessary requisition was given by the CBI authorities requesting to accord sanction to prosecute Sri.H.K.Nagaraj. In order to better appreciate the said contention, the evidence of P.W.25 - Sri.Devaraj is required to be looked into. P.W.25 - Sri.Devaraj, was the Commissioner of MUDA and as per the service regulations, the Commissioner was the competent person to appoint or remove a person from service in which cadre the accused No.4 was serving at that point of time. As per Ex.P.27, which is the work entrustment register, would clearly indicate 35 Spl.C.C.No.340 of 2015 that accused No.4 was entrusted with the finance section of the MUDA and it is also not in dispute that accused No.4 - Sri.Nagaraj was discharging his duty as F.D.A. at MUDA during the said period of time i.e., 2012-13. With these basic aspects, when the entire evidence is appreciated, it indicates that P.W.25
- Sri.Devaraj has clearly deposed about the manner in which the sanction was accorded. It is his evidence that when they had received the requisition along with the documents from the Investigating Officer, the same was presented before the Board of MUDA and there the matter came to be deliberated and thoroughly discussed. It is also the evidence that during that point of time, they had verified the records and also with respect to entrustment of work. Admittedly, it is his evidence that the loss of Rs.5,00,00,000/- was incurred to MUDA which is forthcoming in the documents which is furnished by the Investigating Officer. In order to justify his contention, he has identified the report i.e., Ex.P.214 which was the sanction order and also during the course of cross-examination, he has specifically deposed that the Commissioner of MUDA was the 36 Spl.C.C.No.340 of 2015 competent person to remove the delinquent employee i.e., accused No.4 - Sri.Nagaraj, who was serving as F.D.A. at MUDA. It has also been noticed from the tenor of cross- examination no materials has been elucidated from the witness to falsify the case of the prosecution. Further, during the course of cross-examination which has been suggested with respect to the fact that the earlier Commissioner P.W.1 - Dr.H.S.Shivaram was kept in suspension during that period of time. No doubt, the witness has categorically admitted of P.W.1 being kept under suspension. The same would not falsify the case of prosecution. It is the settled principles of law that at the time of according the sanction, the competent authority has to verify the records and documents which is furnished by the Investigating officer and in the case on hand the Commissioner of MUDA, should have verified the records, perused the documents and should have arrived at a just conclusion. In the case on hand, the commissioner has specifically deposed placing on all relevant records before the competent authority i.e. Board of MUDA and after due deliberations they had arrived at a conclusion to 37 Spl.C.C.No.340 of 2015 accord sanction for prosecution. Now, the question which requires to be addressed is that the admission of the witness that the deliberations of the Board being not enclosed with the sanction would be fatal to their case. In this regard, the court has relied upon the judgment of the Hon'ble Apex Court, reported in (2011) 4 SCC 402 (Ashok Tshering V/s. State of Sikkim) 27 wherein it is held as:
26. In State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604] , this Court dealing with the same provisions held that a conjoint reading of the main provision, Section 5-A(1) (new Section 17) and the two provisos thereto, shows that the investigation by the designated police officer was the rule and the investigation by an officer of a lower rank was an exception. It has been ruled by the Court in several decisions that Section 6-A (new Section 23) of the Act was mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality, 38 Spl.C.C.No.340 of 2015 but that illegality committed in the course of an investigation, does not affect the competence and the jurisdiction of the Court for trial and where the cognizance of the case has in fact been taken and the case has proceeded to termination, the validity of the proceedings is not vitiated unless a miscarriage of justice has been caused as a result of the illegality in the investigation.
14. The said judgment clearly indicates that the competent authority at the time of recording sanction, should have applied their mind by verifying the records. When the said postulate is deduced to the case on hand, it indicates that the competent authority ie., Commissioner of MUDA, verified all the documents and also necessary materials which is forthcoming in the sanction of order itself. Under the circumstances, the sanction which has been accorded by the competent authority is valid and consequently, point No.1 is answered in Affirmative.nt 39 Spl.C.C.No.340 of 2015
15. Before adumbrating to the factual aspects of the case the court has carefully appreciated the entire evidence which is lead before the court.
16. P.W.1 Dr.H.S.Shivaram is the Commissioner of MUDA at relevant point of time and he had deposed that when he had taken the charge as Commissioner of MUDA A-4 Nagaraj was the FDA who was looking after the account section and also the bank accounts maintained by MUDA. He has specifically deposed of issuance of cheque to be made as FD at Indian Bank Mandya as per Ex.P.4, Ex.P.5, Ex.P.11, Ex.P.12 and Ex.P.15. Further he has deposed that A-4 Nagaraj had shown him the FD receipts which are kept in transparent cover and relevant entries were also made with respect to the entrustment of work as per Ex.P.27 and also the directions to open FD in the name of MUDA. It is his evidence that later on he came to know that the amount which was kept as FD was required for developmental activities and hence the Deputy Commissioner of Mandya had requested to get the FD's closed on 22.06.2013. As such he had directed A-4 Nagaraj to 40 Spl.C.C.No.340 of 2015 correspond with the bank authorities to get the FD account closed. However only on 29.06.2013 said note was put up by A- 4 and later on it was sent on 02.07.2013. At that time they came to know that the FD receipts were all forged and no such FD was opened in the name of the MUDA. Once again a official letter was sent on 04.07.2013 and on the basis of the same a endorsement was issued by the Indian Bank Mandya. On the basis of the same and on the advise of the Deputy Commissioner Mandya he had lodged a written information as per Ex.P.19. During the course of cross examination he was cross examined at length by all the accused persons denying about the role of accused. It is pertinent to note that the accused No.1 has blatantly denied about any role being played by him and where as accused No.3 has not at all cross examined the witness. Accused No.4 has suggested to the witness that the accused No.4 had only carried out the instructions given by the witness and he was no where concerned about the alleged fraud.
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17. P.W.2 V. Kathirvel is the Manager of Indian Bank who has identified the records and also the account opening form pertaining to the account of M/s Aakash Enterprises for which accused No.3 Chandrashekar was the proprietor as per Ex.P.30 and also deposed of identifying the account extracts and also the credit being made to the account of M/S Aakash Enterprises. He in detail has deposed about the cheques credit slips which were presented to the bank by accused No.3 and its transfer to various accounts. During the course of cross examination by accused No.1 nothing much has been elucidated and where as accused No.2 not elucidated much about the evidence. Accused No.3 has mainly concentrated on suggesting that the bank themselves were at liability of intimating their higher authorities whenever high amount is being deposited to the account.
18. PW.3 R. Ramaswamy who was the senior Manager of Indian Bank has deposed that he had retired from the bank on 31.12.2012 and also he had identified A-1 as one of their 42 Spl.C.C.No.340 of 2015 customer and also accused No.3 Chandrashekar of opening of an account in his bank. He has feigned his ignorance with respect to P.W.1 H.S.Shviaram and A-2 Nagalingaswamy. During the course of cross examination nothing much has been elucidated from him.
19. P.W.4 Kumar Nayak is also the Manager of Indian Bank who has deposed of receiving the letter of request by the MUDA for closing the FD receipts and also he has deposed about the cheque which were presented by A-3 Chandrashekar.
20. P.W.5 - Nagaraj Patil is the Branch Manager of Axis Bank who had identified the accounts pertaining to ARS Pictures and the account of A-5 K.B.Harshan and also he has deposed about various account transfers being made to the account.
21. P.W. 6 M.H.Chikkanna is the Manager of Bank of Baroda has deposed about the account of A R Logistics 43 Spl.C.C.No.340 of 2015 belonging to A-1 K.Anand and also various transactions which were made into the account.
22. P.W. 7 S.Praveer has deposed about borrowing amount by accused No.1 who had paid on behalf of his brother K.Murali towards the loan and also a sum of Rs.3 lakhs was paid by A-1 K.Anand through cheque.
23. P.W. 8 M.M. Jayaram is the independent business man who has deposed of identifying Chandrashekar for opening of account.
24. P.W.9 P.Shivamma has deposed of receiving cheque by A-3 as per Ex.P.33 for Rs.1 lakh and another cheque for Rs.30,000/-
25. P.W.10 K.Sadanandam who is the Senior Manager of Allahabad Bank has deposed of MUDA having account at Mandya Branch and later on transferring the amount of Rs.5 crores through cheque drawn by MUDA.
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26. P.W.11 D.Gopal has deposed of encashing cheque for Rs.1,50,000/- at the behest of accused No.3 .
27. P.W. 12 Ravi has deposed of encashing cheque on behalf of A-3 for Rs.70,000/-
28. P.W. 13 Smt. Radhamma has deposed of receiving Rs.40,000/- through the cheque issued by A-3 Chandrashekar.
29. P.W. 14 G.B.Boregowda has deposed of encahsing cheque of Rs.75,000//- as per Ex.P.37 on behalf of A-3 Chandrashekar.
30. P.W. 15 K.N.Ravindrakumar has deposed of encashing cheque for Rs.1 lakhs as per Ex.P.42 on behalf of A-3 Chandrashekar.
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31. P.W. 16 K.P.Suresh has deposed of encashing cheque for Rs.1 lakhs as per Ex.P.43 on behalf of A-3 Chandrashekar.
32. P.W. 17 T.K.Nagaraj has deposed that he had lended Rs.30 lakhs to accused No.1 K.Anand who inturn had returned the amount through the cheque at Ex.P.44 and later on another cheque was presented on behalf of A-1 as per Ex.P.173 for Rs.2 lakhs which was handed over to him through A-5 Harshan.
33. P.W. 18 M. N. Krishna Iyengar has deposed of working under A-3 Chandrashekar and encashing cheque to him for Rs.1,50,000/- and Rs.1,80,000/- as per Ex.P.51.
34. P.W. 19 Dr. V.J.Shobharani was the earlier investigating officer who had commenced the investigation on the FIR registered under CR.No.273/2013 at Mandya West police station and later on she had handed over the further investigation to the CID. During the evidence she has deposed of collecting specimen handwritings and signatures. 46
Spl.C.C.No.340 of 2015
35. P.W. 20 N.Venkatesh was the Dy.SP of CID and has deposed of sending the specimen signature and writings to the FSL.
36. P.W. 21 M.J.Abhinandan has deposed of running electronic shop in the premises where accused No.3 was running M/s Aakash Enterprises.
37. P.W. 22 N.Shivaprasad has deposed of lending money to accused No.1 and later on receiving the said amount through the account of accused No.1
38. P.W. 23 G.Sonappa has deposed of furnishing the account details of T.K.Nagaraj.
39. P.W.24 S. Subramanian has deposed that he was the Branch Manager of Indian Bank at Yelahanka and has identified the account opening forms pertaining to M/s Sri Shakthi Souharda Credit Co-operative Society. 47
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40. P.W. 25 A.Devaraj was the Commissioner of MUDA and has deposed of according sanction to prosecute A-4 Nagaraj after due deliberations on verification of the investigating reports filed by CBI.
41. P.W. 26 Shivaprasad Choudhary is the Senior Manager of Allahabad Bank who has deposed of handing over of documents to CBI.
42. P.W. 27 B.M.Krishnamurthy was the Assistant Manager of Indian Bank who has deposed of furnishing specimen signature and specimen seal of the bank to verify with the FD receipts at Ex.P.20 to Ex.P.24.
43. P.W. 28 T. Venkatesh Prasad was the Driver at Future Well Agro Vet Estate Pvt., Ltd., belonging to accused No.2 Nagalingaswamy and had deposed of encashing cheque for Rs.5 lakhs on behalf of A-2 as per Ex.P.167. 48
Spl.C.C.No.340 of 2015
44. P.W.29 S.N.Lokesh is the Account Superintendent of MUDA who has deposed of work entrustment to A-4 Nagaraj.
45. P.W.30 K.M.Shivaraj was the Driver cum owner of Tata Indica which was hired by P.W.1 Shivaram and had deposed that A-2 Nagalingaswamy used to visit their office and subsequently during his incarceration he had handed over two letters at Ex.P.25 and Ex.P.26 to him requesting him to hand over it to P.W. 1 H.S.Shivaram and another letter to SP of Mandya.
46. P.W. 31 Sri Syed Asgar Imam is the Handwriting Expert at FSL Bengaluru who has deposed about verifying the specimen signature and handwritings of accused persons and furnishing report as per Ex.P.215 to Ex.P.219.
47. P.W.32 K.Y.Guruprasad is the investigating officer who has deposed of investigating the case on the receipt FIR 49 Spl.C.C.No.340 of 2015 being registered by C.W. 37 as per Ex.P.220 and on culmination of investigation he had filed the charge sheet. ANALYSIS AND APPRECIATION OF EVIDENCE:
NO.1red in the affirmative.
48. POINT NO.2,4,5,6 and 7 :-
(Since point no.2 pertains to Sec.120-B r/w 420 of IPC and also point No.4 pertains to Sec.420 of IPC and whereas point no.5 to 7 pertains to Sec.467,468 and 471 of IPC they are taken up for discussion together to avoid the repetition of the facts) The main allegation leveled against the Accused persons as per the charge sheet is that the accused No.1 to 5 had entered into a conspiracy with each other in order to cheat and defraud the MUDA and to siphon off amount pertaining to MUDA. It is well settled law that the conspiracy is that the same will always be hatched in darkness and in majority of the cases the question of conspiracy is to be determined on the basis of circumstantial evidence since there will not be any direct 50 Spl.C.C.No.340 of 2015 evidences. The provisions of Section 120(B) define that the accused persons should have committed an act which is not illegal by illegal means or which is perse illegal. In order to better appreciate the said aspects, firstly, the allegation which is leveled, is required to be looked into. It is the case of the prosecution that the accused No.4 - Sri.H.K.Nagaraj, who was working as F.D.A. at MUDA was entrusted with the cheques belonging to MUDA to be deposited as fixed deposit at Indian Bank, Mandya. It is relevant to note that as per the general cash book register at Ex.P.26, it indicates that necessary instructions were given by P.W.1 - Dr.H.S.Shivaram, who was the then Commissioner to deposit the said cheque to MUDA. Initially, on 8/2/2013 the cheque was drawn on Indian Bank, Mandya for a sum of Rs.1,00,00,000/- and another cheque for same amount was drawn in favour of Indian Bank. On both these accounts, an endorsement was also made and prior to that a note for approving the deposit to be made in favour of MUDA was made and entered in the General Cash book of MUDA by the Commissioner - Sri.H.S.Shivaram. It is pertinent to note that 51 Spl.C.C.No.340 of 2015 the main modus operandi of all the accused persons was that the cheques which were drawn was only consisting the name "Indian Bank, i.e., drawn in favour of Indian Bank".
Subsequently, there-afterwards, the account number came to be inserted. In order to appreciate the question of conspiracy, the act which is committed by all the accused persons is to be ascertained in seriatem. In the instant case, accused No.1 -
Sri.K.Anand is a private person and also accused No.2 -
Sri.H.S.Nagalingaswamy, is a private individual. Whereas, accused No.3 - Sri. Chandrashekhar is the proprietor of M/s.
Akash Enterprises and he had opened a bank account at Indian Bank, Mandya. Accused No.5 - Sri.K.B.Harshan is also a private individual and the main contention of the prosecution is that the cheques which were drawn to be deposited as fixed deposit, favouring MUDA, was later on inserted with account number pertaining to M/s. Akash Enterprises of accused No.3 - Sri. Chandrashekhar. The said Cheques at Ex.P.4, EXP5, EXP11, Exp14 and Ex.P.15 were sent to Forensic Science Laboratory for the purpose of examination in order to compare the hand 52 Spl.C.C.No.340 of 2015 writing in which the account number has been mentioned. The report of the expert is obtained as per Ex.P.215, which clearly indicates that the accused persons herein had entered into the conspiracy and had indeed inserted the account number. At this juncture, the question of veracity of expert opinion and also the report which is given at Ex.P.215 will be discussed in the later part of the judgment. The learned counsel for accused has seriously disputed the acceptance of the report furnished by the expert i.e., P.W.31- Syed Asgar Imam, who is a hand writing expert.
49. Now, coming back to the question of conspiracy, the law which is well settled with respect to adjudicating the same is required to be considered. In this regard the court has relied upon the judgement of Hon'ble Apex Court Reported in 2002 SCC (Cri) 1734 (Khalid Vs State of west Bengal) where in it is held as under:
"17. It would be appropriate to deal with the question of conspiracy.53
Spl.C.C.No.340 of 2015 Section 120B of IPC is the provision which provides for punishment for criminal conspiracy. .......... The elements of a criminal conspiracy have been stated to be:
(a) an object to be accomplished,
(b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means,
(d) in the jurisdiction where the statute required an overt act.
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed.
From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be 54 Spl.C.C.No.340 of 2015 accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See: American Jurisprudence Vol. II See 23, p. 559).
For an offence punishable under Section 120-B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation 55 Spl.C.C.No.340 of 2015 in an agreement to commit an offence.
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable.
When two agree to carry into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
18. No doubt in the case of conspiracy there cannot be any direct evidence.
The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreements should be for doing an illegal act or for doing illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by 56 Spl.C.C.No.340 of 2015 circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
19.....
20......
21. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, with the objectors set before themselves as the object of conspiracy, and about the 57 Spl.C.C.No.340 of 2015 manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
22. The provisions of Section 120-A and 120-B, IPC have brought the law of conspiracy in India in line with the English Law by making the overt act unessential when the conspiracy is to commit any punishable offence..............
50. The main aspect which has been laid down by the Hon'ble Apex court is that the concept of conspiracy will be hatched in darkness and it is always based upon inferences to be drawn from circumstances. It is also been held that in case of conspiracy the same can not be established in normal parlance by leading direct evidence. Further in the said judgment it is clearly held that there will be seldom direct evidences available and as such the proof of conspiracy can not be established directly. Further in matters pertaining to conspiracy the same is required to be proved through circumstantial evidences. When the said aspect is applied to the 58 Spl.C.C.No.340 of 2015 case on hand it would be relevant to note that accused No.3 - Sri.Chandrashekar had got issued a letter to the Bank Authorities, stating that he was a Contractor by profession and had done certain works towards construction of Rajakaluve and also development of Vivekananda Layout, Mandya, for which, the MUDA was required to pay him remuneration. By presenting the said letter to the Bank Authorities, the cheques which were handed over by accused No.4 came to be encashed in favour of accused No.3 - Sri.Chandrashekhar i.e., to his Proprietorship concern M/s. Akash Enterprises. With this background, the amount which came to be deposited through five cheques is required to be looked into. As already discussed above, on 8/2/2013, two cheques for Rs.1,00,00,000/- each was deposited and subsequently, three cheques came to be deposited in the month of March for a sum of Rs.1,00,00,000/- each. It is pertinent to note that immediately after honoring of cheque, amount came to be deposited to the account of M/s. Akash Enterprises. As per the evidence of P.W.2 - Sri.V.Kattrivel and P.W.3 - Sri.R.Ramaswamy and also the Manager at that 59 Spl.C.C.No.340 of 2015 point of time i.e., P.W.4 - Sri.N.Kumara Naik, it indicates that amounts were withdrawn on different dates. It is also relevant to note that P.W.2 - Sri.V.Kattrivel, has in detail explained the manner in which the transfer had taken place. Though several transactions have been made with respect to transfer of amount from the account of accused No.3- Sri.Chandrashekhar, Proprietorship firm M/s.Akash Enterprises, it is pertinent to note that the sum of Rs.30,00,056/- was transferred as per Ex.P.46 - Cheque, in favour of M/s. ARS Pictures for which accused No.2 was the proprietor. That apart, another cheque was also honored in favour of "M/s. A-Square" as per Ex.P.48 - cheque on 12/2/2013 for a sum of Rs.30,00,056/-. Apart from that, another cheque was issued as per Ex.P.50 on 12/2/2013 in favour of accused No.5 - Sri.K.B. Harshan for a sum of Rs.17,00,000/-. This is only with respect to three transactions which have been pointed out in order to consider the question of hatching of conspiracy. Apart from that, another sum of Rs.20,00,000/- was transferred into M/s. Shakthi Souharda Credit Co-operative Society, which was allegedly through payee 60 Spl.C.C.No.340 of 2015 slip, signed by accused No.3 himself. It is relevant to note that one of the allegations which is leveled by the prosecution is that, out of the proceeds of the amount obtained from MUDA, the accused No.3 had transferred it to the account of accused No.1 and he in turn had paid certain amount to P.W.22 - Sri.Shivaprasad N. from whom he had borrowed amount. It is also relevant to note that, another partnership firm of accused No.1 by name M/s. Likith Link Line was also credited with huge amount of money through account of accused No.3. The said account transactions are required to be answered by accused persons, since it is the bounden duty of the accused to explain the manner of transaction and why the amount was credited into their accounts. At this juncture, the sole question which requires to be considered is whether the burden of proof can be shifted upon to the accused persons. No doubt, it is the settled principle of law that burden of proof never shifts from prosecution that to accused. At the same time, the prosecution need not prove each and every aspect and the fact which is within the special knowledge of accused is required to be 61 Spl.C.C.No.340 of 2015 explained by him as per Ex.P.106 of Indian Evidence Act. It is the settled principle of law that as per Section 106 of Indian Evidence Act, the facts which are within the special knowledge of Accused is required to be explained by him. It is the settled principle of law laid down by the Hon'ble Apex Court that each and every aspect need not be established by the prosecution. The Hon'ble Apex Court in the decision reported in (2000) 8 SCC 382 ( State of W.B. v. Mir Mohammad Omar) wherein it is held as:
31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would 62 Spl.C.C.No.340 of 2015 be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-
narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in 63 Spl.C.C.No.340 of 2015 the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
51. When the said principle is once again appreciated with the case on hand, definite burden will be casted upon the accused to explain certain circumstances. In this regard, the court for limited purposes has looked into the statements recorded under Section 313 of Cr.P.C since it is time and again held that the stage of recording the statement under section 313 of Cr PC is not bald entity and infact an opportunity is given to the Accused to explain the incriminating circumstances available against him. As discussed above, the burden of proof though will not be shifted upon from the Prosecution, but at times, when initial burden is discharged as held the in the afore said dictum, the same will be transferred into the Accused person to explain the circumstances which was within his 64 Spl.C.C.No.340 of 2015 special knowledge. It is made clear at this juncture that the court is not relying upon the said statements for the purpose of drawing any inference against the accused persons, but only to ascertain whether any explanation has been given by the accused persons. It is relevant to note that the said transactions were brought to the notice of accused No.1 - Sri.K.Anand, as well as accused No.2 - Sri.H.S.Nagalingaswamy and accused No.3 - Sri. Chandra-shekar. In fact, accused No.1 and 2, during the course of their recording statements, have clearly denied of transferring of the amount by accused No.3 and in fact, feigned their ignorance with respect to having an account in the name and style M/s.A.R.C. Pictures, M/s. A.Square, M/s. Likith Link Lines etc., However, the said aspects cannot be considered for the simple reason that the prosecution have produced the KYC documents and also account opening applications from the bank in which they had opened the accounts. During the course of cross-examination of the witnesses who had produced the said documents, no substantial denial has been made by the accused persons. Once again, it is the cardinal principle that in 65 Spl.C.C.No.340 of 2015 the absence of any specific denial by the accused with corroborating materials, inference can be drawn against them. Admittedly, the accused have admitted all the KYC documents and so, it will be upon the accused to offer an explanation that why and how their KYC documents came to be handed over to the bank? It is rather interesting to note that accused No.3 has admitted opening of account in the name and style M/s. Akash Enterprises and through out his defence, he has not at all denied opening the account. In fact, during the course of his recording of statement under Section 313 of CrP.C., the accused No.3 - Sri.Chandrashekar has specifically admitted of having an account in Indian Bank in the name M/s. Akash Enterprises and also he had admitted of having amount deposited by MUDA. It is the submission by the learned counsel for accused No.3 that it was the duty of the bank to ascertain why such huge amount came to be deposited to the account of accused No.3. It is relevant to note at this juncture that though duty is casted upon the bank to ascertain why huge amount was deposited, witness i.e., Manager - P.W.4 - Sri.N.Kumar Naik has 66 Spl.C.C.No.340 of 2015 given an explanation that he had received a letter from accused No.3 - Sri.Chandrashekar as per EX P 93, indicating that he had done certain contractual work for MUDA and towards the same, he had received the cheque. In the absence of any other attending circumstances, the evidence of the Manager, P.W.4 - Sri.N.Kumar Naik of accepting the reasons and honoring the cheques cannot be doubted.
52. That apart, it is also relevant to note that the amount which was drawn from the account of accused No.3 has been admitted by him partially. It is also appropriate to look into the fact that on 8/2/2013, the cheque which was drawn by MUDA for Rs.1,00,00,000/- came to be deposited into the account of accused No.3 - Sri.Chandrashekar, immediately within two to three days of its deposit. The amounts were withdrawn and disbursed to various accounts. In this regard, the accused No.3, candidly admits of issuing cheque for meager sum of amounts Rs.50,000/- to the account of P.W.14-Sri. Boregowda and also another sum of Rs.50,000/- to the account 67 Spl.C.C.No.340 of 2015 of one P.W.13 - Smt.Radhamma. The accused No.3 - Sri.Chandrashekar cannot be permitted to approbate and reprobate in one breath. It is the settled law that a person cannot be permitted to blow hot and cold in one breath and either he has to admit of having knowledge of deposit and also its withdrawal or he has to deny the entire transactions. If the accused No.3 - Sri.Chandrashekar partly admits the withdrawal of amount, then it would clearly indicate that he had definite knowledge of its deposit and also its withdrawal. Any prudent person would not have accepted the huge amount being deposited to his account and that too by a Government Authority. In order to cast a shadow of doubt on the prosecution, accused No.3 - Sri.Chandrashekar is pointing his fingers towards the bank officials by stating that they were the one who should be held responsible for the entire fraudulent act. Even if it is accepted that there was some mis-conduct on the part of the branch manager in not informing his higher authorities, the same would not be a fatal one. 68
Spl.C.C.No.340 of 2015
53. The learned counsel for accused No.3 has relied upon the Circulars issued by the Reserve Bank of India (RBI in short) in order to butters his argument. One such circular is the Master circular issued by the RBI on 01/07/2015. In that particular paragraph No.3.2, the RBI has stated that in case of individual frauds involving amount of Rs.1,00,000/- and above and less than Rs.25,00,000/-, should be reported to regional office of the department. When the circular is carefully looked into, the court has to look into the fact that whether the manager at that point itself was having knowledge of fraudulent act committed by the accused persons. It is not the case of the prosecution that at the time of depositing the cheque, the Manager was having knowledge about the same. But, it was subsequently on 2/7/2013, that a letter came to be issued by the Commissioner of MUDA, requesting the Bank Authorities to close the fixed deposit, the same had come into the light. Under the circumstances, the circular which is relied upon by the accused No.3 would not hold his case. In fact, would fortify the contention of the prosecution.
69
Spl.C.C.No.340 of 2015
54. It is also pertinent to note that when other allegations are made by accused No.3 - Sri.Chandrashekar against P.W.1 - Dr.H.S.Shivaram, he should have been subjected to cross-examination. Astonishingly, the Accused No.3 after making volley of allegations against the then Commissioner- PW-1 Dr H S Shivaram has not at all cross- examined. It is also appropriate to look into the contentions of accused persons in the above case. Though accused No.1 and 2 have denied of opening accounts in their firm name i.e. M/s A Square, A R S Pictures, A R Logistics, Likith Link Line Services, it is pertinent to note that the KYC documents which have been produced by the prosecution establishes that the said firms are standing in their name. Apart from that accused No.3 himself has admitted that he is the proprietor of M/s Aakash Enterprises, which fact is fortified by the evidence of P.W.7 Praveer. During the course of his cross examination it was suggested by accused No.3 that S.Praveer had borrowed a sum of Rs.15 lakhs and towards security he had got his house mortgaged in the name of K Murali who is the brother of 70 Spl.C.C.No.340 of 2015 accused No.1 K Anand. It is relevant to note that the case of prosecution also indicates that accused K.Anand's brother K Murali had lended sum of Rs.15 lakhs to the said witness and he had only paid Rs.10 lakhs out of the loan amount of Rs.15 lakhs. It is in this background the prosecution contends that a sum of Rs.3 lakhs was paid by A-1 K.Anand on behalf of his brother K.Murali by way of cheque at Ex.P.40 which came to be honored. Though it has been denied by the accused No.1 during the course of cross examination the suggestion putforth by accused No.3 would only lend assurance to the case of prosecution. No doubt the suggestion co accused can not be a ground for forming an opinion about the guilt of accused person, however the manner in which the transactions had taken place and also the opening of account and transfer of amount to the account of M/s Aakash Enterprises and from there to the account of accused persons can not be a mere conjuncture. Repeatedly it is kept in mind that the case of the prosecution is based on circumstantial evidence and as such even a single suggestion assumes importance. By looking into 71 Spl.C.C.No.340 of 2015 the said aspects, now the court has to ascertain whether the act of accused persons would attract the provisions of Section 120(B) of IPC.
55. In the instant case the prosecution has also led the evidence of P.W.18 M.S.Krishna Iyengar who is alleged to have encashed the cheque issued by A-3 Chandrashekar on behalf of his firm M/s Aakash Enterprises. In his evidence it was suggested to him that the witness was working under accused No.3 himself and A-3 infact was taking care of his entire livelihood. This particular suggestion would indicate the close nexus with A-3 was having with P.W.18 Krishna Iyengar. Further in his cross examination he has suggested that the cheques were filled by A-3 himself by affixing his signature on its back side. With this evidence once again the answers given by accused No.3 at the time of recording his 313 statement is to be looked into. No doubt at the cost of repetition it is held by the Hon'ble Apex Court that the answers in 313 statement can not be held as incriminating against accused person, however the same can be looked into for the purpose of corroboration. In the 72 Spl.C.C.No.340 of 2015 said statement the accused No.3 has stated that he had handed over signed blank cheques to accused No.1 K.Anand who might have issued the same to some other persons. That means indirectly he is admitting the role of accused No.1 in the above case. Even other wise if the evidence is independently examined with the evidence of P.W.17 T.K.Nagaraj it is pertinent to note that as per the case of prosecution a cheque for Rs.30 lakhs was issued in favor of the witness on 09.02.2013 drawn on M/s Aakash Enterprises as per Ex.P.44. During the course of his cross examination all that it has been suggested that no such amount was issued on behalf of A-1 Kebballi Anand. It is relevant to note that the main evidence which is tendered by the witness is that the said amount was borrowed by Anand and towards its repayment the cheque was drawn on the account of M/s Aakash Enterprises for which A-3 was the proprietor. Strangely the said witness has not been cross examined by accused No.3 and it is been stated that there is no cross examination by the accused No.3. Hence it is clear that A-3 is admitting issuance of cheque and a burden will be casted upon 73 Spl.C.C.No.340 of 2015 him to explain why the said amount was issued on his account. If for a moment it is accepted that the cheque was issued without knowledge of A-3 and if his submission of A-1 obtaining the cheque forcibly is accepted for the sake of argument then once again the evidence of P.W.7 S Praveer is to be looked into wherein it was suggested by accused No.3 himself about mortgaging the house by witness in favor of the brother of A-1 K.Anand. Since the amount of Rs.3 lakhs was paid through the cheque at Ex.P.40 through the account on M/s Aakash Enterprises the question of conspiracy can be related with each other.
56. Even other wise the following transactions would clearly throw light on the manner in which the amount has been transferred from the account of M/s Aakash Enterprises to the account of accused No.1 and 2 as well as accused No.5 K. B. Harshan. The said aspects are found in the evidence of P.W.2 Kathirvel who was the Asssistant Manager of Indian Bank, Mandya Branch at relevant point of time. For the sake of 74 Spl.C.C.No.340 of 2015 convenience the following transactions are culled out from the evidence of P.W. 2 Kathirvel for benefit which reads as follows:
Sl. Date Name Amount Exhibit
No.
1 11.02.2013 P.W-14 Boregowda Rs.75,000/- Ex.P.37
2 11.02.2013 A R S Pictures Rs.40,00,056 Ex.P.38
3 11.02.2013 P.W. 7 S Praveer Rs.3 lakhs Ex.P.40
4 09.02.2013 P.W.17 T.K.Nagaraj Rs.30 lakhs Ex.P.44
5 11.02.2013 Self cheque Rs.5 lakhs Ex.P.45
6 12.02.2013 A R S Pictures Rs.30,00,056/- Ex.P.46
7 12.02.2013 A Square Rs.30,00,056/- Ex.P.48
8 12.02.2013 Accused No.5 Rs.17 lakhs Ex.P.50
Harshan
9 12.02.2013 Sri Shakthi Rs.20 lakhs Ex.P.52
Souharda Co-
operative Bank
10 12.02.2013 Jaikumar Rs.2,50,000/- Ex.P.54
11 13.02.2013 A R S Pictures Rs.30,00,056/- Ex.P.55
12 20.11.2012 D Gopal Rs.1,50,000/- Ex.P.57
13 18.02.2013 A R Logistic Rs.35,00,056/- Ex.P.8
14 18.02.2013 Accused No.1 K Rs.12 lakhs Ex.P.61
Anand
15 19.02.2013 Sri Shakthi Rs.2,50,000/- Ex.P.61(a)
Souharda Co-
operative Bank
16 19.02.2013 Accused No.1 K. Rs.40,00,056/- Ex.P.62
Anand
17 19.02.2013 Jaikumar Rs.7 lakhs Ex.P.64
18 19.02.2013 A R Logistic Rs.27 lakhs Ex.P.65
19 19.02.2013 K J Ravikumar Rs. 2 lakhs Ex.P.66
75
Spl.C.C.No.340 of 2015
20 22.02.2013 Self cheque Rs.50,000/- Ex.P.67
21 22.02.2013 Transfer debit Rs.50 lakhs Ex.P.68
reinvestment plan
22 22.02.2013 Transfer debit Rs.50 lakhs Ex.P.69
reinvestment plan
23 23.02.2013 Sri Shakthi Rs.15 lakhs Ex.P.70
Souharda Credit
Co-operative Bank
24 22.02.2013 A Square Rs.35,00,056/- Ex.P.71
25 22.02.2013 Transfer debit Rs.50 lakhs Ex.P.73
towards
reinvestment plan
26 23.02.2013 Transfer debit Rs.50 lakhs Ex.P.74
towards
reinvestment plan
27 23.02.2013 Transfer debit Rs.50 lakhs Ex.P.75
towards
reinvestment plan
28 23.02.2013 Transfer debit Rs.50 lakhs Ex.P.76
towards
reinvestment plan
29 23.02.2013 Debit voucher Rs.42,50,000/- Ex.P.78
30 23.02.2013 Santhosh Rs.1 lakh Ex.P.79
31 23.02.2013 A R Logistics Rs.41,50,000/- Ex.P.80
32 23.02.2013 AR Logistic to Sri Rs.4 lakhs Ex.P.152
Krishna Pharma
33 13.04.2013 AR Logistic to Smt. Rs.1,50,000/- Ex.P.154
G.K.Rani (wife of
accused No.1 K.
Anand)
34 19.02.2013 A R Logistic to Sri Rs.1,30,000/- Ex.P.157
Krishna Pharma
35 19.02.2013 D D infavor of Sub- Rs.25,000/- Ex.P.159
76
Spl.C.C.No.340 of 2015
Registrar
36 19.02.2013 D D infavor of Sub- Rs.2,500/- Ex.P.160
Registrar
37 23.02.2013 A R Logistics to the Rs.30 lakhs Ex.P.165
account of A-2
Nagalingaswamy
38 23.02.2013 A R Logistics to the Rs.5 lakhs Ex.P.167
account of A-2
Nagalingaswamy
39 25.02.2013 A R Logistics to the Rs.5 lakhs Ex.P.166
account of A-2
Nagalingaswamy
40 26.02.2013 A R Logistics to the Rs.4,25,000/- Ex.P.168
account of A-2
Nagalingaswamy
41 26.02.2013 A R Logistics to the Rs.8 lakhs Ex.P.169
account of A-2
Nagalingaswamy
57. It is relevant to note that the amount transactions mentioned in Sl.no.1 to 30 were made from the account of M/s Aakash Enterprises for which A-3 Chandrashekar was the proprietor and where as the other transactions from the account of A R Logistics were made from the account of accused No.1 K.Anand who was the proprietor of the said firm. The evidence of P.W. 6 Chikkanna who was the Manager of Bank of Baroda has deposed before the court that A-1 was the proprietor of A R 77 Spl.C.C.No.340 of 2015 Logistics and the KYC documents along with the account opening form at Ex.P.146 justifies the said contention. Apart from that the document at Ex.P.128 which is pertaining to the account opening of ARS Pictures along with KYC documents also indicates that the said account belonged to A-1 K Anand. The document at Ex.P.138 which is the account opening form along with KYC document at Axis bank indicates that the account belonged to accused No.5 K.B.Harshan. All the said account transfers once again requires to draw inferences against the accused persons for the simple reason that the impugned cheques issued by MUDA as per Ex.P.4 and Ex.P.5 were on 08.02.2013 and the above table indicates of transferring of amount from the account of Aakash Enterprises on the very next day or on the same day indicates of conspiracy between accused persons. Apart from that the other three cheques at Ex.P.11 and Ex.P.12 on 14.02.2013 and Ex.P.15 cheque on 19.02.2013 were encashed infavor of M/s Aakash Enterprises. However immediately after depositing of amount to the account of M/s Aakash Enterprises it was disbursed into 78 Spl.C.C.No.340 of 2015 the accounts belonging to A-1 Kebballi Anand either directly in his name or in the name of his firm and also to the account of A-2 Nagalingaswamy and A-5 K B Harshan. It is also relevant to note that during the course of recording the 313 statement the accused No.5 has simply denied the transfer of Rs.17 lakhs to his account as per Ex.P.50 on 12.02.2013. The said aspects can be clearly construed as the link to join the circumstances. During the course of cross examination of P.W.2 Kathirvel and P.W.6 Chikkanna along with the evidence of P.W.5 Nagaraj Patil who was the then Manager of Axis Bank confirms the account in the name of above said accused persons. Under the circumstances the chain of events would clearly indicate that the accused persons had hatched a conspiracy and in furtherance of the same the amount came to be transferred from the account of M/s Aakash Enterprises for which accused No.3 Chandrashekar was the proprietor. At this juncture itself the court has also considered the provisions of Sec.106 of Indian Evidence Act wherein duty is casted upon the accused to explain the circumstances which is within his special 79 Spl.C.C.No.340 of 2015 knowledge. If for the sake of arguments, if it is accepted that the accused No.1,2 and 5 were not having any nexus with the transfer of the amount, the burden will be upon them to explain why such deposit was made to their account. It is also relevant to note that at this juncture that the prosecution has pointed out the circumstances in which the amount came to be transferred from the account of A-1 Kebballi Anand to the account of A-2 Nagalingaswamy. Immediately preceding to the same the amount was transferred from the account of M/s Aakash Enterprises to the account of A-1 Kebballi Anand and his associate accounts in the name of his firm M/s A R Logistics, Likith Link Line services, A Square and that off the account of A-2 Nagalingaswamy and also in his account at A R S Pictures. As already discussed supra the factum of conspiracy is required to be established through the circumstances and in the case on hand the same is properly explained. Apart from that the court has also considered the duty casted upon the accused under Sec.106 of Indian Evidence Act. No doubt as per the provision of said section, it is required for the Accused to 80 Spl.C.C.No.340 of 2015 explain the circumstances which are within his special knowledge, the fact which is required to be looked into is whether the provision under section106 of Indian Evidence Act is of universal application and it could be applied to economic offences also. In this regard the court has relied upon the judgment of the Hon'ble Apex Court reported in (2004) 1 SCC 691 (State of M.P. v. Awadh Kishore Gupta ) wherein it is held as:
5. Section 13 deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (e) of sub-section (1) of the section is pressed into service against the accused. The same is applicable when the public servant or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Clause (e) of sub-section (1) of Section 13 corresponds to clause (e) 81 Spl.C.C.No.340 of 2015 of sub-section (1) of Section 5 of the Prevention of Corruption Act, 1947 (referred to as "the old Act"). But there have been drastic amendments.
Under the new clause, the earlier concept of "known sources of income"
has undergone a radical change. As per the Explanation appended, the prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the Explanation that "known sources of income" means income received from any lawful source, the receipt of which has been intimated in accordance with the provisions of any law, rules, orders for the time being applicable to a public servant. The expression "known sources of income" has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income" means sources known to the accused. The prosecution cannot, in the very nature 82 Spl.C.C.No.340 of 2015 of things, be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106 of the Indian Evidence Act, 1872 (in short "the Evidence Act").
58. By looking into the said judgment and on appreciating the statement of the accused recorded U/s 313 of Cr.P.C no explanation has been rendered by the accused persons with respect to transfer of amount. However the statement of accused No.3 Chandrashekar indicates that he had categorically admitted of transferring certain amounts and he in a specific manner has contended of handing over signed cheque books to A-1 Kebballi Anand. In my humble opinion the same would again fortify the contention of prosecution.
59. Even otherwise, while appreciating the provisions of Secs.468 and 471 of IPC, the Court firstly has to look into the ingredients of Sec.464 of IPC which reads as follows:83
Spl.C.C.No.340 of 2015 Sec.464 Making a false document. -- [A person is said to make a false document or false electronic record-- First --Who dishonestly or fradulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed;
or Secondly --Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly --Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by 84 Spl.C.C.No.340 of 2015 reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration".
60. Further, in order to ascertain the said provisions, once again, the recourse has to be taken to Sec.463 of IPC which is also reproduced as follows:
463. Forgery.-- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery .
61. When both the provisions are carefully appreciated, the prosecution has to produce necessary documents so as to indicate that the accused persons had committed forgery intending that the documents so forged, shall be used for the purpose of cheating. Once again, when the concept of cheating is involved, the Court has to appreciate the provisions of Sec.420 of IPC. The main ingredients of Sec.420 of IPC is: 85
Spl.C.C.No.340 of 2015 a. Deception of any persons.
b. Fraudulently or dishonestly including any person to delivery any property.
c. To consent that any person shall retain any property and finally intentionally inducing the said person to do or omit to do anything which he would not do or omit.
62. When the said aspect is appreciated, firstly the prosecution has to prove that an act of deception was committed by the accused persons and the same was committed in furtherance of fraudulent or dishonest act wherein the property was delivered to them and lastly, they had retained the same. In the instant case, the prosecution has mainly led the evidence of P.W. 1 Dr.H.S.Shivaram to indicate that he had directed the concerned case worker A-4 Nagaraj to deposit the amount at Indian Bank. Prior to that the court has also considered the entrustment of work to accused No.4 Nagaraj with respect to discharging the work as accountant at MUDA. In this regard reliance can be placed on Ex.P.27dated 30.01.2013 wherein he was entrusted specifically to look after account 86 Spl.C.C.No.340 of 2015 section along with staff and matters pertaining to court by the Commissioner of MUDA. With this entrustment the accused No.4 can not avoid his liability and now he can not take up a defence that he is not concerned with respect to the drawing of cheque. At this juncture the defence of accused persons is also required to be considered. The accused No.4 has contended that the account was opened by him at Indian Bank in the name of his firm M/s Aakash Enterprises. However the accused No.4 has specifically contended that though he had filled the contents of the cheque at Ex.P.4 and 5 and once again Ex.P.11,12 and 15 he has denied of inserting account number in the said cheques. However as per the evidence of P.W.2 Kathirvel the cheques were presented to the bank was found in order and accordingly it was cleared. With this specific defence it is crystal clear that the Commissioner of MUDA P.W.1 Dr.H.S.Shivaram had given necessary directions to accused No.4 Nagaraj to deposit the amount to Indian Bank at Mandya. However the contention of A-4 is that he had not inserted the account number on the impugned cheques at Ex.P.4,5,11,12 87 Spl.C.C.No.340 of 2015 and 15 i.e. the account number of M/s Aakash Enterprises wherein account No.6060020206. However it is evident from the materials available that the cheque on its honoring by the bank the amount was credited to the account of M/s Aakash Enterprises through which it was disbursed to the account of other accused persons. As such now it is for the accused persons to explain why the amount was credited to their account. It is also relevant to note at this juncture that as per the letter dated 18.02.2013 issued by A-3 Chandrashekar at Ex.P.93 he has given an explanation to the Manager of Indian Bank, Mandya Branch that he was a Civil Contractor and had worked towards constructions of Rajakaluve, drainage and other developmental works pertaining to the MUDA and towards the same the amount was credited to his account. Once again at the cost of repetition it is to be noticed that the signature in the said letter was sent to handwriting expert to ascertain the genuineness or other wise of the signature found on that. The said signature was confirmed to be that off accused No.3 by comparing it with the specimen signature of the accused No.3. 88
Spl.C.C.No.340 of 2015 As already discussed above the report furnished by the handwriting expert will be discussed in the next part of my judgment. However primafaciely it indicates that the accused No.3 Chandrashekar also admitted of crediting of amount to an extent of Rs.5 crores to his account and later on disbursement to various other persons. Apart from that the learned counsel for accused No.4 has vehemently argued that the court has to consider the tenor of the complaint at Ex.P.19. The learned counsel for accused No.4 has pointed out that in the said complaint at Ex.P.19 when carefully appreciated would indicate of the fact that the cheque was deposited to the bank by the Commissioner of MUDA. The court has given anxious reading to the averments in the complaint. In particularly at Ex.P.19 at page No.2 indicates that when the cheques were being given to Sri Ramaswamy (P.W.3) A-2 Nagalingaswamy was also present. However during the cross examination of P.W.1 Dr.H.S.Shivaram he has clarified that the complaint was drafted by ascertaining the facts from A-4 Nagaraj who was the concerned FDA to look after the accounts of MUDA. It is to be 89 Spl.C.C.No.340 of 2015 borne in mind at the time of lodging the complaint at Ex.P.19 there was no iota of doubt against accused No.4. However only subsequently the said doubt came to be entertained. Even other wise as per the evidence of P.W.3 Ramaswamy against whom it is alleged by the accused counsels that he had colluded with P.W.1 Dr.H.S.Shivaram and had committed fraud, does not holds water for the reason that P.W.3 Ramaswamy had retired from the bank on 31.12.2012 and where as the first cheque came to be issued only on 08.02.2013. Even other wise for the sake of arguments if is accepted that the amount was misused or misappropriated by P.W.1 Dr.H.S.Shivaram in connivance with P.W.3 Ramaswamy, once again a explanation is required that why the amount was credited to the account of M/s Aakash Enterprises belonging to accused No.3 Chandrashekar and from there it was percolated to the account of other accused persons except accused No.4. Under this circumstances the probable aspect which can be inferred is accused No.4 visiting the bank to hand over the cheque and bringing back the forged FD receipts. It is also relevant to note that the FD receipts at 90 Spl.C.C.No.340 of 2015 Ex.P.20 and Ex.P.22 were carrying the same serial number and where as the FD receipts at Ex.P.21, Ex.P.23 and Ex.P.24 were consisting of same serial number and it was issued on 17.02.2013 which was a Sunday. The accused No.4 being the custodian of the FD receipts should have verified the same and his silence in this regard can not be considered as a mere negligence.
63. Now the other aspect of description of complaint at Ex.P.19 is to be looked into. The law is well settled that the complaint need not be an encyclopedia and it is a document through which the law will be set into motion. The court has also taken into consideration of the conduct of the accused persons after crediting of the amount to their account. At the cost of repetition the chart which is prepared by the court clear indicates of several transfers being made into their accounts and also it is surprising to note that the accused No.3 in whose name the account of M/s Aakash Enterprises was standing had made deposits of Rs.50 lakhs towards reinvestment plan and on the very next day OD was created on that amount and with in a 91 Spl.C.C.No.340 of 2015 short period the said reinvestment plan and OD were closed. All the said aspects would clearly indicates that the accused persons in furtherance of their dishonest intention had made the property of MUDA i.e. the amount to be delivered to them by inducing the Authority to wrongfully deliver the same to the account of M/s Aakash Enterprises. It is made clear that the insertion of account number in the impugned cheque at Ex.P.4 Ex.P.5, Ex.P.11, Ex.P.14 and Ex.P.15 were not with in the knowledge of the competent authority i.e. the Commissioner. Apart from that with respect to other leg of provision of Sec.420 it clearly indicates that the accused persons had induced MUDA and later on after crediting of amount the same came to be utilized by them.
64. It is relevant to note that with respect to inducing the Commissioner of MUDA to make a deposit at Indian Bank the letter at Ex.P.1 which is an offer letter given at the behest of the Senior Manager Mandya Branch is to be considered. The letter at Ex.P.1 dated 28.08.2012 clearly indicates that it was addressed to the commissioner MUDA, Mandya. However P.W. 3 92 Spl.C.C.No.340 of 2015 R Ramaswamy has admitted his signature in the letter as Ex.P.1(b). At the same time he has clearly stated that the letter was not addressed to the Commissioner, MUDA Mandya. When the letter is closely scrutinized it indicates that the correction fluid has been applied and the name of Commissioner MUDA has been written by hand. During the course of cross examination of P.W.2 Kathirvel and P.W.3 R.Ramaswamy they have clearly deposed that normally the offering letter will not contain anything which is written by hand. Apart from that the other letter at Ex.P.3 dated 07.02.2013 wherein it was addressed to the Commissioner, MUDA Mandya indicates that it was originally addressed to the Controller of Finance and the words 'Controller of Finance' was scrolled off and the name of the Commissioner MUDA Mandya was written by hand. Once again the said letter has been denied by the witnesses and though they were subjected to cross examination by the learned counsel for accused nothing much has been elucidated to disprove the contention of prosecution. As such the factum of inducement is established by the prosecution and in 93 Spl.C.C.No.340 of 2015 furtherance of the same the cheque at Ex.P.4, Ex.P.5, Ex.P.11, Ex.P.12 and Ex.P.15 came to be issued. At the cost of repetition it is to be noted that the amount was credited to the account of M/s Aakash Enterprises bearing No.6060020206 which was subsequently inserted after obtaining the signature of the Commissioner of MUDA. As such the prosecution has clearly established the modus operandi of the accused persons of getting the amount of MUDA illegally credited to the account of accused No.3 and from there it was once again disbursed to the account of other accused persons.
REGARDING PROOF OF HANDWRITING, FD RECEIPTS AND SPECIMEN SIGNATURE.
65. At this juncture the question of proof of document and also the handwriting is required to be looked into. The sole defence which is taken up by the learned counsel for accused is of total denial. They have contended that the accused No.1 and 2 are not at all related to the transfer of the amount nor any amount was credited to their account. In the same vein it is 94 Spl.C.C.No.340 of 2015 submitted by accused No.3 that he had not issued any letter to the bank authorities stating to have completed contractual work for MUDA as per Ex.P.93. The said documents i.e. Ex.P.93 was sent to FSL to ascertain the handwriting and signature on the said document along with the original KYC documents and the sample signatures which were obtained by the investigating officer. The cheques at Ex.P.4, Ex. P.5, Ex.P.11, Ex.P.14 and Ex.P.15 were also sent to the handwriting expert to ascertain about the fact of insertion of account number in the impugned cheques wherein it was alleged by prosecution to be issued infavor of Indian Bank and later on the insertion were made by the accused persons.
66. The report which is furnished by the handwriting expert is placed before the court and the handwriting expert who had made a rowing enquiry about the documents was examined as P.W.31 Syed Asgar Imam. Before adverting to the report furnished by the expert it would be relevant to consider the settled position of law with respect to appreciation of the opinion of an expert.
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67. The learned counsel for the accused no.1 has argued that the report was not in accordance with law since the expert himself had not mentioned about the dissimilarities. Per contra, the learned PP has stoutly defended the report furnished by the finger print expert. In order to better appreciate the factual aspects the court has referred the various citations and in one of the judgment reported in AIR 1978 S.C. 1183 ( Mohan Lal & Anr., v. Ajit Singh & Anr.,) wherein The Hon'ble Apex Court has held thus:
43: We have given our reasons for rejecting the statement of the respondent that the police got his finger impressions on the currency note while he was in custody at the police station. The respondent was an educated man who was employed as the Secretary of the local Co-operative Society and who had an influential maternal uncle. The police could not therefore have obtained his Fingerprints in the manner alleged by him and the respondent would have resisted any such attempt to create irrebuttable evidence against him of a serious charge like murder and her or his uncle could have exposed it immediately.96
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68. In this regard the question that requires to be answered is whether it is necessary to conclude that particular numbers of similarities are required to identify the finger prints. The Federal Bureau of Investigation of USA requires twelve and the Scotland Yaards requires sixteen points of similarities for positive identification. But in many cases as noticed the points required for the purpose of identification varies and in some authorities it is held that if there are five or six 'well-grouped' characteristics, and the pattern uncommon, the identification is definite. By well-grouped characteristics, they mean dots, islands, hooks and spurs. If five or six characteristics occur close to one another and in a narrow are, the force of identity is enhanced. In some texts it has been opined that in cases of blurred or partial impressions three identical points are sufficient. The Finger prints bureau of different States in India have fixed varied standards, requiring six to twelve points of similarities to determine the identity. Further as per the Finger Print Manual of Madhya Pradesh it has been discussed in para 88 that " if a sufficient number of ridge characteristics are in 97 Spl.C.C.No.340 of 2015 complete agreement in the two impressions it can be said definitely that the impressions were made by the same persons. However, no definite rule can be laid down for fixing the number of points of similarities. Four or Five might be sufficient if there were unusual peculiarities. The consensus of modern opinion is that six, four in sequence are sufficient to justify a definite opinion being given". The following extracts from the book Modern Criminal Investigation by Soderman and O'Connel may be quoted which reads as :
"The demand for twelve similar details is the result of the opinion of bygone days, founded on the opinion of Galton, Remus, Balthazard and others. All recent scientists working in the field of dactyloscopy, as for instance, Locard, De Rechter and others, share the opinion that the number of characteristics points which can be noted at the edge of an enlargement is a matter of little importance. A rare detailed is a an identification sign one hundred times more important than a whole series of forks, four to five details in a center of an unusal pattern have much more value as evidence than twelve to fifteen forks in the periphery. Some ridge with unusually grouped pores have more weight than the classical twelve points."98
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69. Hence it is clear that there is not hard and fast rule that there have to be a fixed point of similarities for the purpose of identification. Even the Hon'ble Apex court dictum as discussed supra clearly holds that even six or seven points of similarities are sufficient. Under the circumstances the evidence tendered by the expert is to be appreciated in order to ascertain that whether the examination was conducted in accordance with law. Further, in another ruling The Hon'ble High Court of Karnataka in 1983 (2) Kar.L.J. 135 wherein it has been held as:
14. When the experts differ, ultimately the Court has to form its own opinion on the basis of the entire evidence brought on record. The Court also would he competent to compare the signatures and the writings under S. 73 of the Evidence Act. The Supreme Court of India, speaking on this aspect in Fakhruddin v. State of MP [AIR 1967 SC 1326.] , has observed in paras 10 and 11 of the judgment thus:
"The writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an Expert competent to the comparison of hand-writings on a scientific basis. A third method is comparison by the 99 Spl.C.C.No.340 of 2015 Court with the writing made in the presence of the Court or admitted or proved so by the writing of the person. Both under Ss. 45 and 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert, but to say that the Court may accept the fact proved only when it has satisfied itself on its observations that it is safe to accept the opinion whether of the expert or other witnesses. The Supreme Court in an appeal also is entitled to call for the writings for making a comparison thereof (AIR 1957 SC 381; and AIR 1963 SC 1728 and AIR 1964 SC 529; and AIR 1967 SC 778, relied on)".
70. With respect to similarities and dissimilarities the court has relied upon the judgment of the The Hon'ble High Court of Delhi in (Madan Mohan v. Jawaharlal & Anr.) has held thus:
"The report QW-4 handwriting expert Ex. QW 4/1 is also reliable as this witness took help of latest techniqus in comparing 100 Spl.C.C.No.340 of 2015 signatures. The alphabets/words "Roop rani' in the signatures in the first will are joint whereas it is separate in the second will but it does not prove forgery because slight difference in signatures takes place with the passage of time whereas general characters do not change. It is a fact that human hand does not act like a machine to reproduce exact similar writing. Two handwritings and signatures even done at the same time by a same person may differ slightly. Hence in such situation where line quality of signatures is similar, then simple one tilt or rectangular stroke in first will is not a reason to presume forgery. Non taking of enlarge photographs of signatures by this witness is also not a ground to reject his report especially when he used other scientific instruments such as Twin Video Comparator, VSC-4 and Stereo Zoom Microscope in comparing the signatures in original position. Otherwise also obtaining of enlarged photographs in each and every case is not compulsory because some of the features, qualities, standards etc, cannot be studied from the photograph, There are certain limitations in comparisons through photography method. Hence use of latest techniques and instruments by this witness which is not described as inappropriate or unsuitable was justified for making comparison of the signatures. Non taking of measurement of signatures how creates dent in the report is not explained by the respondent. According to this witness, line quality of signatures on both wills is similar and on the face of it, no dissimilarity can be traced 101 Spl.C.C.No.340 of 2015 out even if it is compared by naked eye. Hence in that situation, occurring of some natural tremors in signatures in the second will due to old age factor does not lead to any inference of any forgery. Accordingly, i find no ground to reject the report of this expert also and it is held that signatures of Smt Roop rani on the second will Ex. Pw 1/3 are genuine."
71. When the said dictum is appreciated with the instant case it clearly indicates that a serious question mark is raised with respect to the evidence tendered by the expert. In fact the expert has clearly deposed of receiving the specimen writings and also the admitted writing. Firstly it is noticed that the witness has deposed that he had furnished the opinion in his report dated 21.09.2013 at Ex.P.216 stating that the specimen writing and signatures marked as A-1 to A-66 and A-67 to A-96 which was pertaining to A-1 Kebballi Anand also wrote the questioned writings and signatures marked as D 1 to D 10 and D 11 to D 15. It is relevant to note at this juncture that A-1 to A-66 which was the number given by the expert was pertaining to the questioned signatures of R.Ramaswamy which was found on the FD receipts at Ex.P.20, Ex.P.21, Ex.P.22, 102 Spl.C.C.No.340 of 2015 Ex.P.23 and Ex.P.24. The said writings and signature was compared with the writings of accused No.1 K.Anand and on the basis of the same the expert has opined that the FD receipts which are stated to be forged one at Ex.P.20 to Ex.P.24 did not contain the signature of P.W.3 Ramaswamy. Infact in the reasons assigned by him he has specifically analysed the said aspects and has noted about the significant divergences in the minute and inconspicuous details of the execution of the signatures and the manner of writing of words "R,S" and simplified movement in execution of rest of the characters including the word 'Y'. In the said report it is stated with respect to the nature and movement of combination and termination of strokes and letters, nature and direction of finishing stroke when compared that of the standard signatures and divergent one. On the basis of the same the expert had arrived at a conclusion that the minor divergences which were found in the documents which he had numbered as D.11 to D.15 (Ex.P.20 to Ex.P.24) the alleged forged FD receipts were of natural variation and they were sufficient to express negative authorship with 103 Spl.C.C.No.340 of 2015 respect to the admitted signature of P.W. 3 Ramaswamy and whereas it had resulted in positive authorship with respect to the writings of that of A-1 K.Anand. Along with the report the expert has also furnished the enlarged photographs of the signatures. During the course of cross examination no specific questions were put forward to disbelieve the case of prosecution or to displace the evidentiary value of the expert. As per the judgment of the Hon'ble Apex court reported supra, it would be appropriate to consider the similarities and dissimilarities and also the court will have to independently evaluate the report. The report which is furnished would clearly indicate that Ex.P.20 to Ex.P.24 FD receipts were all forged and created one. Further the expert has also given his opinion with respect to the sample seal and specimen signature found on the FD receipts. The specimen small round seal impressions were compared by him and also with the numbers mentioned on the deposit receipts of Indian Bank. He has deposed that the said documents were subjected to scientific examination through scientific instruments namely stereoscopic microscope, micro 104 Spl.C.C.No.340 of 2015 watcher and video spectral comparator-5000 instruments. By verifying the documents and materials he had arrived at a conclusion that the specimen seal impression and questioned seal impressions were entirely different and accordingly he has furnished his opinion as per Ex.P.219. That apart the expert has also compared the specimen signatures and writings of A-3 Chandrashekar with the documents available in the Indian Bank at Ex.P.93 which is said to be the letter issued by accused No.3 Chandrashekar to the Manager of Indian Bank stating that the amount which was deposited in his account was towards the contractual work made by him for MUDA. During the course of cross examination by accused No.3 nothing much has been elucidated from the witness. It is pertinent to note that the learned counsel for accused No.3 himself has given credentials and appreciation to the expertise of the witness by suggesting that the said witness was appointed as expert in various scams like BDA Scam, Social Welfare Scam and also it was suggested that the opinions tended by him was accepted by courts without casting any aspersion. This particular suggestion would clearly 105 Spl.C.C.No.340 of 2015 rule out any sort of aspersions that may be created over the opinion furnished by the expert. Even other wise when the letter issued by accused No.3 Chandrashekar at Ex.P.93 indicates that he had affixed the signature to the same on verification of the opinion given by the expert as per his report at Ex.P.218 indicates that he had assigned the reasons for arriving at such a conclusion. In his details report he had specifically stated that the similarities in individual writing habits in execution of character were observed between the manner of execution of certain words and also by looking into the nature and movement of their commencement, shape and movement in formation of their body strokes, movement in combination and termination of strokes and letters he had arrived at the said conclusion. Apart from that except natural variation no divergent writing habits were observed by him. As already discussed above nothing much was elucidated from him during the course of cross examination to disbelieve his reasoning. If for the sake of arguments the letter which came to be issued as per Ex.P.93 by accused No.3 is accepted then once again the burden will be 106 Spl.C.C.No.340 of 2015 upon the accused to explain the circumstances for getting the amount credited to his account and transferring it to the account of other accused persons. At the cost of repetition it is noticed that the accused No.3 has categorically admitted of utilizing amount to small extent. Under the provisions of law no differentiation can be made out whether the money which was illegally credited was utilized to a large extent or to a minor extent. If the crediting is accepted and also if accused No.3 admits of transferring amount to the account of other accused persons then they owe explanation in this regard.
72. The other aspect which is canvassed by the learned counsel for accused persons is that no proper mahazar was drawn nor any persons were examined by the prosecution in order to prove the collection of specimen writings and signatures. It is vehemently argued that the specimen signatures and writings can be collected only with the permission of the court. The said aspect has been refuted by the Learned Senior P.P. who would argue that the collection of 107 Spl.C.C.No.340 of 2015 specimen signature when in the custody of IO does not require permission of the court. In order to consider the said aspects it would be appropriate to look in to the provision of Karnataka Police Manual and also the settled law.
73. In this regard he has relied upon the Judgment of the Hon'ble Apex Court reported in Prakash Vs State of Karnataka, reported in 2014 (2) crimes 207 (SC) wherein the Hon'ble Apex Court has held as "33. Our attention was drawn to the Karnataka Police Manual and it appears that Nanaiah followed the guidelines laid down therein and perhaps acted in an overly cautious manner. Guideline 1543 provides as follows:
"1543. The opinion of the fingerprint expert is of paramount importance in the investigation of various crimes. The following instructions should be followed regarding chance finger and footprints and their developments, preservation of the scene, method of packing and other matters:"
34. Guideline 1544 in the Manual contains various provisions and clause (iv) and clause (v) are relevant for our purposes. They read as follows:
"1544. (i)-(iii) *** 108 Spl.C.C.No.340 of 2015
(iv) If latent prints are found on portable articles they should be seized under a detailed panchnama duly packed and labelled and sent to the Fingerprint Bureau with a police officer with instructions regarding the care of the package during the journey.
(v) In sending the articles containing latent prints to the Bureau, proper attention must be given to their package. The following essential points should be borne in mind:
• It should be ensured that no portion of the article where prints may be found should get into contact with anything else and • The articles should be securely packed in a suitable container."
Clause (iv) was clearly not followed when Nanaiah took the plastic cover along with him and this is an extremely serious lapse. However, we give him the benefit of doubt and assume that it is perhaps with clause
(v) in mind that Nanaiah took the plastic cover along with him.
35. While we completely disapprove of the manner in which Ext. P-18 was taken away by Nanaiah (and the investigating officer did nothing about it), the case of the prosecution does not get strengthened even if a valid procedure was followed, since there is nothing on record to show that the "admitted" fingerprints on Ext. P-20 were those of Prakash which could be 109 Spl.C.C.No.340 of 2015 compared with the fingerprints on Ext. P-18 and the enlarged photograph being Ext. P-19.
36. Assuming that Ext. P-20 was a valid piece of evidence validly obtained, there is no explanation why it was kept by the investigating officer from 14-11-1990 till 9-1-1991 when it was received by Nanaiah. The Karnataka Police Manual highlights the importance of keeping safe an article containing fingerprints. In view of its importance, Nanaiah did not trust anyone with the plastic cover bearing the inscription "Canara Bank"
(Ext. P-18) and carefully took it along with him to avoid its getting damaged by getting into contact with anything else. On the other hand, we have the investigating officer keeping Ext. P-20 with him for almost two months and in circumstances that seem unclear. We cannot rule out the possibility of Ext. P-20 getting damaged due to careless handling.
37. We are of the opinion that there is no fingerprint evidence worth it linking Prakash to the murder of Gangamma".
74. I have carefully followed the dictum of the Hon'ble Apex Court. in the said Judgment the Hon'ble Apex Court has re-appreciated the finger print evidence and it has also looked into the provision of Karnataka police manual at guideline 110 Spl.C.C.No.340 of 2015 no.1543 which provides for drawing a mahazar for lifting a finger print from the place of incident. However in the said Judgment the Hon'ble Apex Court has not held that the absence of drawing a mahazar to lift the finger print would be invalid or it cannot be looked into. The Hon'ble Apex Court has analyzed the said aspect with the circumstances of the case and has held that it was a irregularity and it had caused certain doubt over the case of the prosecution. In the said case there was no explanation that why the said finger prints obtained were kept with the Investigating Officer for a period of more than two months. However in the above case no such incident had taken place and immediately the finger prints and signatures were obtained by the investigating officer after taking accused to her custody. Once again at the cost of repetition it has to be appreciated that whether the non following of the procedure by the Investigating Officer would vitiate the proceedings. It is the settled principles of law that the lacunas in investigation should not come in the way of appreciating the evidence. Further, I have also relied upon the Judgment of the Hon'ble High 111 Spl.C.C.No.340 of 2015 Court of Karnataka reported in ILR 2013 Kar.3156 in the case of State by Rural police shimoga Vs B.C.Manjunatha @ Manju, wherein the Hon'ble High Court has discussed about the finger prints obtained. In the said Judgment the Hon'ble High has held as "The next circumstance is that finger prints of accused No.1 were found on iron safe of the deceased situated in the farm house of Gajanur Village from which the gold and silver articles were robbed. In order to prove the said circumstance, the prosecution has relied upon the evidence of PWs.20, 21 and 23.
16. PW.23 was working as Constable during the relevant time in Finger Prints Bureau at Shimoga. He is trained in lifting the finger prints and developing the same. PW.23 has deposed that on 5.11.2003 he went to the farm house of the deceased couple for lifting the finger prints; he had taken kit box along with him; he verified the spots for the purpose of lifting the finger prints; he examined doors, latches, pooja room, bed room, etc. of the farm house for lifting the finger prints; he had used chemicals at the time of such inspection to verify the finger prints. He did not get sufficient and clear finger prints as required on the door latches, kitchen door and utensils. However, he found three finger prints on the iron safe 112 Spl.C.C.No.340 of 2015 placed in bed room. He used powder for getting clear finger prints.
Thereafter finger prints were lifted with the help of adhesive tapes and subsequently the finger prints were taken, stored and developed into photographs. Thereafter, finger prints were sent to Finger Prints Bureau, Davangere for examination. He identified the photographs in which the finger prints were developed. He has also identified his signature at finger print mahazar-Ex.P4(c). Nothing worth is elicited in cross-examination of PW.23 by the defence relating to lifting of finger prints by PW.23. There is hardly any cross-examination by defence, of this witness. Not even a suggestion is made by defence that PW-23 is not the expert in lifting the finger prints and developing them.
From the evidence of PW.23, it is clear that he went to the spot and verified all the materials found in the house to find out the finger prints. It is also brought on record that he is trained in lifting the finger prints. After using chemical powder he lifted the finger prints from the iron safe and developed them into photographs, which were sent to Finger Prints Bureau at Davanagere for opinion.
17. PW.21 is the Investigating Officer. He has deposed that he took the sample/admitted finger prints of accused No.1 on 6.1.2004. He has also deposed that along with the finger prints of accused No.1, he had 113 Spl.C.C.No.340 of 2015 taken finger prints of fifteen persons including PW.17, son-in-law of the deceased inasmuch as he was also suspected along with 15 others at the initial stage. He has identified the finger prints of accused No.1 at Ex.P18(a). He has further deposed that after getting expert's opinion from Deputy Superintendent of Police, Shimoga on 29.1.2004, it was confirmed that the finger prints lifted by PW.23 from iron safe of the deceased tallied with the admitted finger prints of accused No.1.
18. PW.20 is the Finger Print Expert who examined the admitted and chance finger prints of accused No.1 along with the finger prints of 15 others. PW.20 has deposed that lifted chance finger prints of accused No.1 were brought by Head Constable-
A.R.Purushotham; those lifted chance finger prints had been developed by P.B.Hanumanthappa (PW.23); the chance/lifted finger prints were marked as Q1, Q2, and Q3. The Head Constable-A.R.Purushotham had also brought finger prints of other 15 suspected persons such as Srikanth Bhat, Guruprasad Bhat, V.Girish, Shivaprasad, Advocate, D.S.Lakshmikanth, Manjunatha, Srinath Ithal, etc. All such finger prints of 15 suspected persons, including accused No.1 were compared by PW.20 with the lifted/chance finger prints at Q1, Q2 and Q3. After examination, he found 114 Spl.C.C.No.340 of 2015 that chance prints marked at Q3, which were lifted and developed from the iron safe were found identical with the admitted left middle finger prints found on the finger print slip of accused No.1. He has also deposed that chance print marked as Q1 was not found identical with any of the finger prints of 15 suspects. Chance print marked as Q2 was unfit for comparison as it did not disclose sufficient number of bridge details.
Accordingly, he has issued letter to the concerned. He has further deposed that on 5.2.2004 he sent lifted chance finger prints (Q3) for supply of enlarged photo and lifted chance print (Q1) in natural size and left middle finger print of accused No.1. On 9.3.2004 he received photographs through Head Constable A.R. Purushottam. On the same day, he marked the identical ridge characteristics in the relative sequences and pasted them on a white paper in juxtaposition. A letter written by him is marked as Ex.P18 in which he has given his opinion as per Ex.P19. He has opined that the finger prints slip (containing admitted finger prints) of accused No.1 tallied with the lifted chance finger prints and the same is marked as Ex.P18(a). He has also specifically deposed that finger prints at Q3 is of accused No.1 only.
PW.20 was cross-examined thoroughly to find out as to whether he is expert or not on the subject. In 115 Spl.C.C.No.340 of 2015 the cross-examination he has stated that he is the author of a book relating to Finger Prints in Kannada language running with 270 pages. The said book contains entire finger print science and his experience. In spite of searching cross-examination of PW.20, nothing worth is elicited to discard his evidence. PW.20 is a Senior Officer of the Department and he is expert in the field. The finger print expert has given ample reasons in support of his opinion. His evidence reveals that he has acquired special skill, knowledge and experience in science of identification of finger prints. We find that his opinion is specific. It is neither bald nor dogmatic.
19. From the evidence of PWs.23, 21 and 20 it is amply clear that the prosecution has proved that the chance finger prints found on the iron safe of the deceased tally with the admitted finger prints of accused No.1.
20. It is argued on behalf of accused No.1 that since accused No.1 was working with the deceased very often, it is but natural to find his finger prints anywhere in the house. Though such argument appears to be attractive prima facie, the same cannot be accepted. The person who works in the farm house or in the garden land is not expected to touch the iron safe belonging to his 116 Spl.C.C.No.340 of 2015 employer. If the finger prints of accused No.1 were found elsewhere, the things would have been different.
In the matter on hand, the finger prints of accused No.1 are not found anywhere, except on the iron safe of the deceased which itself clearly reveals that the iron safe was recently handled by accused No.1 only. It is also not in dispute that the iron safe was open; gold and silver articles found in iron safe as well as on the body of the deceased lady are missing. In view of the aforementioned facts, we are of the clear opinion that the prosecution has proved that the finger prints found on the iron safe from which the gold and silver ornaments were stolen are of accused No.1.
21. The Trial Court has disbelieved the case of the prosecution relating to finger prints mainly on the ground that the Investigating Officer is not justified in law in taking admitted/sample finger prints from the accused. The Trial Court relying upon the provisions of Sections 4 and 5 of Identification of Prisoner Act, 1920 (for short hereinafter called as '1920 Act') as well as certain judgments of the Supreme Court and this Court, has concluded that the finger prints ought to have been taken by the Investigating Officer pursuant to the order of Magistrate and that the Investigating Officer should have 117 Spl.C.C.No.340 of 2015 followed the provisions of Section 5 of '1920 Act' in such matters. Such conclusion reached by the Trial Court cannot be accepted at all. The Trial Court in our considered opinion has merely mechanically relied upon certain judgments of the Apex Court as well as this Court to conclude that the Investigating Officer should have taken the Magistrate's permission/order before taking the sample/admitted finger prints of the accused.
22. It is no doubt true that the Investigating Officer (PW.21) has not taken the permission of the Magistrate while taking the sample/admitted finger prints of accused No.1.
However, we make it clear that the chance/lifted finger prints were obtained by PW.23 by drawing mahazar in the presence of panchas as per Ex.P4. However, no mahazar is drawn when the sample finger prints/admitted finger prints of accused No.1 were taken. So also, the Investigating Officer has not obtained the order from the jurisdictional Magistrate for obtaining the sample finger prints/admitted finger prints of accused No.1.
23. In our considered opinion, it is not necessary for the Investigating Officer to do so in the State of Karnataka.
Section 3 of Identification of Prisoners Act, 1920 is not applicable to this 118 Spl.C.C.No.340 of 2015 case, inasmuch as the said provision is relating to taking of measurements, etc., of convicted persons. In the matter on hand, the finger prints were taken by the Investigating Officer of the persons, in the crime which was still under investigation. Thus, Sections 4 and 5 of '1920 Act' are relevant. Section 4 as amended in Karnataka reads thus:-
"4. Taking of measurements or photographs of unconvicted persons - Any person -
(a) Who has been arrested in connection with an offence punishable under Section 96 of the Karnataka Police Act, 1963, or in connection with an offence punishable with rigorous imprisonment for a term of one year or upward or in connection with an offence for the commission of which on a second or subsequent occasion enhanced penalties have been provided for under any law for the time being in force; or
(b) In respect of whom direction or order under Sections 54 or 55 of the Karnataka Police Act, 1963, has been made, shall, if so required by a police officer, allow his measurements or photographs to be taken in the prescribed manner."
(Emphasis supplied) The bare reading of Section 4 makes it amply clear that if the Police Officer 119 Spl.C.C.No.340 of 2015 requires accused person who is arrested in connection with the offence punishable for a term of one year or more, the accused shall allow his measurements or photographs to be taken in the prescribed manner.
Section 4 of '1920 Act' empowers the Police Officer to take necessary finger prints of the accused who is arrested in connection with the offence punishable with rigorous imprisonment for a term of one year or more. In the matter on hand, PW.21, the Investing Officer has taken the finger prints of accused No.1 as per Section 4 of the Act, 1920.
24. Under Section 5 of '1920 Act', the Magistrate has got power to order a person to be measured or photographed. In the matter on hand, the Police Officer has not taken the assistance of Magistrate under Section 5 of '1920 Act'.
75. It is not incumbent on the part of the Police Officer to take help of the Magistrate since Section 4 empowers Police Officer to take finger prints of the accused on his own. In the matter on hand, accused No.1 has not resisted the Police Officer while giving his finger prints. Even in the statement recorded under Section 313 of Cr.P.C., the accused has not stated that his specimen signatures were taken forcibly. It is relevant to 120 Spl.C.C.No.340 of 2015 note the observations of the Division Bench of this Court in the case of K.T.Mohammed vs. State of Karnataka, reported in ILR 1988 Karnataka 1129, wherein it is observed thus:-
"In our State, Section 4 of the Identification of Prisoners Act is in force and according to it, the police officer could take the finger prints, of the accused as they were arrested in connection with an offence punishable with death or imprisonment for life. Therefore, and in view of the decision in SHANKARIA .vs. STATE OF RAJASTHAN (AIR 1978 SC 1248) (para-80) the PSI could take the finger prints and hence we see no force in the said contention of Mr. B.V. Acharya". The aforementioned observations were made by this Court after considering the judgment in the case of MOHAMOOD .vs. STATE OF U.P. reported in 1976 Crl.LJ 10.
25. It is clear from Section-4 of "1920 Act" that in Karnataka, the Police Officer can take the finger prints of the accused, who were arrested in connection with an offence punishable with imprisonment for a term of one year or more. Section 4 of '1920 Act' clearly empowers the Police Officer to take finger prints in a prescribed manner. There is no other manner or procedure which is prescribed in law as such in Karnataka for taking the finger prints. The relevant portion of 121 Spl.C.C.No.340 of 2015 the Karnataka Police Manual as existed during relevant time relating to this aspect reads thus:-
"Person Authorised to
take
Fingerprints
1826. Finger impressions will be
taken only by proficients under the
direction of an officer of the rank of Sub-Inspector or above as provided in the identification of Prisoners' Act (Act XXXIII of 1920). The Sub-Inspector or the Inspector directing the proficient to take finger impressions should sign the fingerprint slip."
26. We are conscious of the fact that Police Manual is nothing but a compendium of Departmental orders issued by the Inspector-General of Police for the administrative guidance of police officers. However, they are issued under the Karnataka Police Act. Be that as it may, even the Karnataka Police Manual does not prescribe any procedure/manner for the Police Officer to take finger prints. Since it is expressly provided under Section 4 of '1920 Act, empowering the Police Officer to take finger prints, we do not find any fault with the Police Officer in taking finger prints of accused No.1 for comparing the same with the chance finger prints. The judgments relied upon by the defence to show that it is mandatory on the part of Police Officer to take permission of Magistrate to take 122 Spl.C.C.No.340 of 2015 sample finger prints, are not applicable to Karnataka State, inasmuch as those judgments are pertaining to the matters which arose from different States other than Karnataka State".
76. Thus, as per the dictum of the Hon'ble Apex Court and also by looking into various facets of law it indicates that though a mahazar was required to be drawn the same would not be fatal in case if the same was not drawn. At the same time it is also appropriate to once again re-appreciate the facts of the case wherein the earlier investigating officer had indeed drawn the mahazar. Now with respect to other aspect of obtaining necessary permission from the competent court the authorities which are relied upon by the court supra indicates that the investigating officer as per the Karnataka Police Manual is having authority to obtain specimen signature during the course of investigation. Even in the case on hand the specimen signature and specimen writings were obtained by him during the course of investigation. As such the submission of the learned counsel for accused does not holds water and the 123 Spl.C.C.No.340 of 2015 specimen writings are signatures which were obtained by the earlier investigating officer holds good.
77. Further, the Court has also relied upon the dictum of Hon'ble Apex Court with respect to appreciation of evidence under Sec.468 and 471 of IPC, more particular, with respect to impersonation as alleged by the prosecution. In the judgment rendered by the Hon'ble Apex Court reported in (2009)15 SCC 643 (Mir Nagvi Askari v. CBI)wherein it has been held that :
164. A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made.
Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criterion of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criterion of the said section is also not applicable to the present case. The third and 124 Spl.C.C.No.340 of 2015 final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us.
Indisputably therefore the accused before us could not have been convicted with the making of a false document.
78. In another judgment of Hon'ble Apex Court, the same proposition of law was canvassed wherein it has been held in the judgment reported in (2018) 7 SCC 581 (Sheila Sebastian v. R. Jawaharaj) as:
19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463 IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e. making of a false document.
Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and until ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 125 Spl.C.C.No.340 of 2015 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 IPC. As Collin, J., puts it precisely in Dickins v. Gill [Dickins v. Gill, (1896) 2 QB 310 (DC)] , a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker.
Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
21. It is observed in Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] that: (SCC p. 756, para 14) "14. ... a person is said to have made a "false document", if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses."
22. In Mohd. Ibrahim [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] , this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467 IPC) and using of forged document as genuine (Section 471 IPC). While considering the basic ingredients 126 Spl.C.C.No.340 of 2015 of both the offences, this Court observed that to attract the offence of forgery as defined under Section 463 IPC depends upon creation of a document as defined under Section 464 IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471 IPC even if title of property did not vest in the executant.
23. The Court in Mohd. Ibrahim [Mohd.
Ibrahim v. State of Bihar, (2009) 8 SCC 751 :
(2009) 3 SCC (Cri) 929] observed that: (SCC p.
757, paras 16-17) "16. ... There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by 127 Spl.C.C.No.340 of 2015 whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
25. Keeping in view the strict interpretation of penal statute i.e. referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. "Forgery" and "fraud" are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial court that the respondents have made 128 Spl.C.C.No.340 of 2015 any false document or part of the document/record to execute mortgage deed under the guise of that "false document". Hence, neither Respondent 1 nor Respondent 2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as the appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.
27. A reasonable doubt has already been thoroughly explained in Latesh v. State of Maharashtra [Latesh v. State of Maharashtra, (2018) 3 SCC 66 : (2018) 2 SCC (Cri) 235] wherein "reasonable doubt" has been enunciated by this Court as (at SCC p. 83, para 46) "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis".
28. In this case at hand, the imposter has not been found or investigated into by the officer concerned. Nothing has been spilled on the relationship between the imposter and Respondent 1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal 129 Spl.C.C.No.340 of 2015 proof. In this case, the trial court as well as the appellate court got carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e. PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.
79. In the wake of the judgment it is clear that the prosecution has to establish the fact of forgery and fraud is required to be established. In the case on hand it is noticed that the amount was credited to the account of accused No.3 who was the proprietor of M/s Aakash Enterprises having account number 6060020206 at Indian Bank Mandya and the same is evidenced by the KYC documents which is produced before the court and in turn necessary documents are produced to indicate the transfer of amount from the account of accused No.3 to that of other accused persons. It is relevant to note that the prosecution has lead the evidence of P.W. 6 Chikkanna, P.W.3 Kathirvel, P.W. 3 Ramaswamy and also P.W. 4 Kumar Nayak who have all confirmed the opening of account by other accused 130 Spl.C.C.No.340 of 2015 persons in their respective branches. When the FD receipts at Ex.P.22 to Ex.P.24 is proved to be forged one and when it is established that the cheques pertaining to MUDA for a sum of Rs.5 crores which was intended to be deposited as FD of Rs.1 crore each was credited to the account of A-3 Chandrashekar and that too the confirmation letter was issued by A-3 claiming the said amount to be his money by issuing letter as per Ex.P.93, the question of forgery and fraud is clearly established by prosecution. Now coming with respect to the provision of Sec.468 and 471 of IPC towards utilization of the said amount by purporting the said document as true and genuine one. It is relevant to note that the circumstances on which the prosecution is relying upon is to indicate that immediately after honoring of the cheque the amount was credited to the account of accused No.3 from there it was transferred to the account of accused No.1,2 and 5 and in order to over come the suspicion the forged FD receipts were produced to the competent authority. At this juncture a serious argument is made by the learned counsel for accused No.4 with respect to the role played 131 Spl.C.C.No.340 of 2015 by him and it is his submission that no overt act can be attributed against him. It is his submission that he had obeyed all the instructions and orders of the Commissioner of MUDA and he had not role to play. However the Learned P.P. during the course of her arguments has contented that the role of accused No.4 is to be considered on the basis of the materials which are available on record. Firstly, she has submitted that as per the records the cheque was presented on 08.02.2013 and as per Ex.P.2 at page No.73 in particularly at Sl.No.358 and 359 the breaking of FD order was put up. Though FD had matured on 09.05.2013 the same was not brought to the notice of the Commissioner. For the sake of arguments if the said act is brushed aside as minor misnomer, the fact which is relevant would be that the accused No.4 had not put up and complied the orders for breaking of FD as per the directions by the Commissioner MUDA. Admittedly, on 22.06.2013 necessary orders were given by the MUDA Commissioner to break the FD as it was required for utilization by the Deputy Commissioner of Mandya for developmental activities. However the accused No.4 132 Spl.C.C.No.340 of 2015 had put up a note on 22.06.2013 stating that the FD was required to be renewed. Later on the Commissioner of MUDA had directed him to close the FD and once again though the order was passed on 28.06.2013 the same was not dispatched to the branch. At this juncture itself it is clarified that the accused No.4 admits of handing over the letter for closure of FD to the bank authorities, however he does not admit of handing over the cheque to the bank on 08.02.2013. For the sake of argument if the Commissioner himself had visited the bank for depositing the cheque then he would have again visited for its closure. In normal parlance the concerned case worker would visit the bank to deposit the cheque and also its collection. The work entrustment register at Ex.P.27 clearly indicates of entrusting the work to A-4 on 30.01.2013. Under the circumstances the accused No.4 can not escape from his liability. That apart when the amount was credited to the account of other accused persons with the connivance and active support of accused No.4 Nagaraj it clearly indicates of 133 Spl.C.C.No.340 of 2015 breaching the trust reposed upon him. Accordingly, the points for consideration is answered in Affirmative.
80. POINT NO.3- The other aspect with respect to attracting the provisions of Sec.409 of IPC is required to be discussed at this juncture. In order to consider the said aspect the court in the first instance has to appreciate what exactly amounts to breach of trust. It is well settled principles of law that in order to attract the provisions of section 409 of IPC there must be an entrustment of property and dishonest misappropriation or use thereof is required to be established by the prosecution. The manner of misappropriation or its use is enumerated in Sec.409 of IPC which are sine qua non for attracting the rigors of Sec.409 of IPC. In other words in order to attract the provision of Sec.405 of IPC there must be :
a. Entrustment of any property or dominion over the property b. That person has dishonestly mis-appropriated or converted to his own use c. That person dishonestly used or disposed that property or willfully has done any act in violation of any direction of law.134
Spl.C.C.No.340 of 2015
81. When the said provision is carefully appreciated the crucial aspect which is required to be considered is the word 'dishonestly' pre-supposes the existence of mens rea. Hence it is crystal clear that the prosecution has to establish that the act of the accused persons were in derogation to the conduct which was expected from them. Unless the mens rea is proved the prosecution cannot insist to seek for an order of conviction. At the same time the fundamental ingredient of 'criminal breach of trust' within the meaning of Sec.405 is that :
a. The accused must be a public
servant
b. He must be entrusted in such
capacity of the property.
c. He must have committed breach
of trust in respect of such
property.
82. The said aspect requires to be considered in the wake of the materials placed before the court and also the evidence which is led by prosecution. It is an admitted fact that the accused No.4 in the instant case is a public servant and also he was working as FDA at MUDA and he was entrusted by 135 Spl.C.C.No.340 of 2015 the work order dated 30.01.2013 as per Ex.P.27 with respect to discharging of the duty. In particularly the Ex.P.27 clearly indicates that A-4 H.K.Nagaraj was entrusted to look after the account section, administrative section, town planning section and also other duties as directed by the Commissioner. In the entire evidence the accused No.4 has admitted of necessary directions from the Commissioner of MUDA to deposit the amount of Rs.5 Crores belonging to MUDA as FD at Indian Bank. However at the cost of repetition it is noticed that the accused No.4 has specifically contended that the name of the particular account belonging to M/s Aaksh Enterprises having its account number as 6060020206 came to be inserted subsequently. As already discussed in my earlier discussion of judgment it is held that the said insertion of account number was made by accused No.1 which is proved by the evidence of handwriting expert who was examined as P.W.31 Sri.Syed Asgar Imam. Apart from that the other evidences which is placed before the court also indicates of encashing the cheque amount by A-3 Chandrashekar and later on transferring it to the 136 Spl.C.C.No.340 of 2015 account of accused No.1,2 and 5. The main relevant aspect which is required to be considered is whether the monitory transactions and also the currency notes can be considered as property of the MUDA over which the accused was entrusted with. In this regard the court has relied upon the judgment of the Hon'ble Apex Court reported in (1972)1 SCC 630 ( Som Nath Puri V State of Rajasthan) wherein it is held as:
7. There can be no doubt that before a public servant can be convicted of an offence under Section 5(1)(e) or under Section 409 IPC, the property which is said to have been misappropriated must be entrusted to him. Section 405 merely provides, whoever being in any manner entrusted with property or with any dominion over the property, as the first ingredient of the criminal breach of trust, the words "in any manner" in the context are significant. The section does not provide that the entrustment of property should be by someone or the amount received must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression "entrusted" in Section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. It may be that a person to whom the property 137 Spl.C.C.No.340 of 2015 is handed over may be an agent of the person to whom it is entrusted or to whom it may belong, in which case if the agent who comes into possession of it on behalf of his principal, fraudulently misappropriates the property, he is nonetheless guilty of criminal breach of trust because as an agent he is entrusted with it. A person authorised to collect moneys on behalf of another is entrusted with the money when the amounts are paid to him, and though the person paying may no longer have any proprietary interest nonetheless the person on whose behalf it was collected becomes the owner as soon as the amount is handed over to the person so authorised to collect on his behalf. This view of ours is well supported by decisions of different High Courts in this country for nearly a century, a few of which alone need be examined.
83. Further in another judgment of the Hon'ble Apex Court reported in (2003) 10 SCC 521 (Anwar Chand Sab Nanadikar Vs. State of Karnataka) where in it has been held as:
10. Essentially, the question is whether the analysis of the High Court in view of the evidence on record is sustainable. We find that the factual aspects have been highlighted by the prosecution to show that the accused was guilty. The decision in Rabindra case [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] is of no assistance to the accused-appellant because in that case there was no material to show any mens rea apart from the fact that the entrustment itself was not fully established.
The accusations were not brought to the 138 Spl.C.C.No.340 of 2015 notice of the accused. Additionally, his explanation as offered was not examined at all. The factual scenario being different in the present case the conclusions arrived at in the decision sought to be relied on have no bearing so far as the present case is concerned, as the accusations have been fully established. The evidence of PWs 1, 8 and 10 conclusively establishes that the accused- appellant was in charge of the properties and he could not either produce those articles or properly account for them when he was asked to do so, as was obligated for him.
11. In Jaikrishnadas Manohardas Desai v. State of Bombay [AIR 1960 SC 889 : 1960 Cri LJ 1250] it was held as follows: (AIR p. 891, para 4) "[T]o establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable 139 Spl.C.C.No.340 of 2015 to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made."
12. This case was considered in Rabindra Kumar case [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] . It was held that the proposition cannot be doubted. But the question is whether the explanation is absolutely false. It is in that background, this Court held that the accusations were not established. In the present case, the position is totally different. No explanation, much less plausible has been given. The High Court is, therefore, right in setting aside the order of acquittal so far as the appellant is concerned. The appeal fails and is dismissed.
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84. When the said authorities are applied to the case on hand it will indicate that the accused No.4 had entered into criminal conspiracy as enumerated in the Sec.120-B of IPC and infurtherance of the same the amount which was handed over to him to be deposited as FD was illegally credited to the account of A-3 Chandrashekar who was having the account in the name M/s Aakash Enterprieses and by virtue of its deposit the same was disbursed to the account of other accused persons. At the cost of repetition it is pertinent to note that the contention of accused No.4 that he had not deposited the cheque to the Indian Bank can not be accepted as already discussed in the earlier part of judgment. Further the FD receipts were maintained by accused No.4 himself who was the custodian of accounts. At the same time whenever the provision of Sec.409 of IPC is pressed into service the law mandates that the burden of proof in respect of proving the said offence will always be on the prosecution and at the same time when the prosecution establishes the fact that the accused was a public servant who was entrusted with property and was duty bound 141 Spl.C.C.No.340 of 2015 to account for and there was dereliction of duty, the onus will be shifted upon the accused. In this regard the judgment relied upon by the learned prosecutor in (2007) 1 SCC 623 (Mustafi Khan Vs State of Maharashtra) wherein it has been held as :
10. Where the entrustment is admitted by the accused, it is for him to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged.
11. The above position was reiterated in Jagat Narayan Jha v. State of Bihar [1995 Supp (4) SCC 518 : 1995 SCC (Cri) 246] .
12. It is not necessary or possible in every case to prove as to in what precise manner the accused had dealt with or appropriated the goods. In a case of criminal breach of trust, the failure to account for the money, proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. Although onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode and manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation given by the accused. In the instant case, there is no dispute about the entrustment.142
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85. Further in another judgment of the Hon'ble Apex Court reported in (2004) 13 SCC 217 (N Bhargavan Pillai (Dead) by Lrs. And another Vs. State of Kerala) Where in it has held as :
143
Spl.C.C.No.340 of 2015 It is fairly well-settled position in law that actual mode of entrustment or misappropriation is not to be proved by the prosecution. Once entrustment is proved, it is for the accused to prove as to how the property entrusted was dealt with. In Jiwan Dass case [(1999) 2 SCC 530 : 1999 SCC (Cri) 288] the factual position was entirely different. It was held that the undertaking given in that case could not be held to be confession or admission. In the present case, the factual scenario as noticed by the trial court and the High Court is different. It was not only on the basis of the undertaking that the conviction was recorded, but the other evidence on record also unerringly proved entrustment. Therefore, it was for the accused to prove as to how the property entrusted with him was dealt with. No material was placed in that regard. Therefore, the courts below correctly held entrustment to have been proved. The concurrent findings of fact recorded by the courts below relating to entrustment and misappropriation in our view are well merited and fully justified on the basis of evidence on record and do not suffer from any perversity or patent error of law to warrant interference.
86. That apart the silence on the part of accused No.4 with respect to date of renewal and also later on the delay made by accused No.4 in requesting the concerned Indian Bank Authorities to close the FD account would clearly indicate his 144 Spl.C.C.No.340 of 2015 over tact. As per the provision of Sec.409 of IPC all the accused persons have joined their hands and have converted the property to their utilization. The evidence which is lead before the court would clearly indicate of the said aspects and as such the prosecution has established the fact of breach of trust. Evidentary value of extra judicial confession and letter allegedly written by accused No.2 Nagalingaswamy as per Ex.P.25 and Ex.P.26.
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87. It is the case of prosecution that accused No.2 Nagalingaswamy had addressed two letters one to P.W.1 Dr.H.S.Shivaram and another to the Superintendent of Police Mandya when he was in judicial custody. It is the case of the prosecution that the said letter was handed over to the driver of P.W.1 Dr.H.S.Shivaram who was examined before the court as P.W.30 K.M.Shivaraj. It is his evidence that he was working as driver cum owner of Tata Indica car which was hired by P.W.1 Shivaram when he was working as District Welfare Officer. Further when P.W.1 was remanded to judicial custody he had visited the jail to meet him and at that point of time A-2 Nagalingaswamy had called upon him and had handed over the letter at Ex.P.25 which indicates that P.W.1 H.S.Shivaram was innocent and a forcible confession was obtained by the police against the witness through A-2 Nagalingaswamy and another letter at Ex.P.26 also indicates of the said aspect. The Learned Senior P.P has argued that the letter which was issued at an undisputed point of time would clearly indicate the act of accused No.2 and has to be considered as chain of link to the 146 Spl.C.C.No.340 of 2015 case of prosecution. However what is required to be considered is whether the said statement can be considered as extra judicial confession. The law with respect to extra judicial confession has been laid down by the Hon'ble Apex Court in the judgment reported in (1999) 9 SCC 30 (Balbir Singh Vs. State of Punjab) wherein it has held as : 147
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3. The only evidence against the appellant was an extra-judicial confession stated to have been made by the appellant before the Sarpanch of the village, the dying declaration of Sukhwinder Kaur recorded by the police on 10-12-1990 and the dying declaration recorded by the Judicial Magistrate on 11-12-
1990. Both the trial court and the High Court relied upon the two dying declarations and also the extra-judicial confession for the purpose of convicting the accused. It was submitted by the learned counsel for the appellant that the courts below have committed a grave error in relying upon the extra-judicial confession as it was highly improbable that in the absence of any relationship with the Sarpanch or for any other good reason, the appellant would have gone to the Sarpanch and confessed that he had purchased the poisonous tablets which led to the death of Sukhwinder Kaur. If what the Sarpanch had deposed was really true, the investigating officer would have then tried to find out from whose shop the tablets were purchased. No such attempt was made. The evidence of the Sarpanch is not such as could have been accepted without any independent corroboration. Even the trial court and the High Court have not considered the said extra- judicial confession as sufficient to prove the guilt of the appellant. It has been regarded as a piece of evidence furnishing independent corroboration to the dying declarations. An extra-judicial confession even if believed is considered a very weak piece of evidence and ordinarily is not accepted without independent corroboration. In this case, it was of a doubtful character and therefore it was wrong to rely 148 Spl.C.C.No.340 of 2015 upon it and hold that it afforded good corroboration to the dying declarations.
88. Further in another judgment which is relied upon by the learned prosecutor of the Hon'ble Apex Court reported in (2008) 13 SCC 257 (Kusuma Ankamma Rao Vs. State of Andhra Pradesh) wherein it has been held as:
11. "18. Confessions may be divided into two classes i.e. judicial and extra-judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra-
judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the [Code of Criminal Procedure, 1973 (in short 'the Code')] or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra- judicial confessions, two questions arise: (i) were they made voluntarily? and (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of 149 Spl.C.C.No.340 of 2015 the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24. The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his 150 Spl.C.C.No.340 of 2015 movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe's Evidence, 9th Edn., p. 284.) A promise is always attached to the confession alternative while a threat is always attached 151 Spl.C.C.No.340 of 2015 to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise, etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words 'appear to him' in the last part of the section refer to the mentality of the accused.
19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court 152 Spl.C.C.No.340 of 2015 to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak of such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
(See State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] , SCC pp.
190-92, paras 18-19.)
89. When the said judgment are appreciated with the facts of the case the position of law which would emerge is that the court may accept the said confession statement if it is satisfied that the same was voluntary and it was based on his free will is required to be proved by the prosecution. However in 153 Spl.C.C.No.340 of 2015 the case on hand no such materials are forthcoming and in the same instance it is to be kept in mind that the accused No.2 who is alleged to have committed offence is giving a clean chit to the witness. In other words one accused is exonerating the other person against whom the Accused persons are perse contending to have committed the offence. As such the same cannot be permitted under the eyes of law. The investigating officer had also not produced any materials to indicate that P.W.30 Shivaraju had visited the jail premises at Mandya and in the absence of any supporting materials to indicate that the accused No.2 Nagalingaswamy had issued the said letter, the court can not accept it to be a extra judicial confession. Accordingly the said letter can not be accepted to be a valid document to support the case of prosecution. The Hon'ble Apex court has repeatedly held in various dictum that the confession statement can only be considered as any other statement in the event it is shrouded in doubt. As already discussed supra an opportunity was also afforded to the accused to explain the circumstances at the time of recording the statement u/S 313 of 154 Spl.C.C.No.340 of 2015 Cr.P.C. Even though the silence or mere denial of the accused can not be a sole ground for convicting him, at the same time the same can be construed as one of the ground which point out towards his guilt. Hence the prosecution has proved that the accused had breached the trust entrusted on him by the MUDA and he had illegally handed over the cheques of MUDA to accused persons who in turn had got inserted the account number and encashed the same. Sequentially the Point No.3 are answered in Affirmative.
90. Point No.8 : Now with respect to the allegations of Sec.13(2) r/w 13 (1)(c)and (d) of Prevention of Corruption Act 1988, the main allegation as noticed above is leveled against accused No.4 that he being the public servant had committed a criminal mis-conduct as he had dishonestly and fraudulently misappropriated or otherwise conferred the property entrusted to him by allowing the other person to do so and as per Sec. 13(d) the relevant portion which is applicable is extracted for the sake of convenience which reads as Sec.13 (1)(d)(ii) and (iii). 155
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(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
91. When the said aspect is carefully appreciated and deduced to the case on hand, there is no dispute with respect to the fact that the accused was working as FDA at MUDA, Mandya at the relevant point of time and he was the public servant discharging duty. The other aspect which requires to be appreciated is whether the allegations which are leveled against him are sufficient to hold that he had committed criminal mis-conduct by dishonestly misappropriating the property entrusted to him under his control as a public servant. This particular charge has to be considered with the evidence of PW.1 Dr. H.S.Shviaram along with the evidence of P.W. 2 Kathirvel and P.W.3 Ramaswamy who has explained the basis of arriving at a conclusion that the accused No.4 in furtherance of his conspiracy entered between other accused persons had 156 Spl.C.C.No.340 of 2015 cheated and defrauded the MUDA. What amounts to misconduct has been laid down by the Hon'ble Apex court in the judgment reported in (2009)8 SCC 617 (State of M.P. v. Sheetla Sahai) wherein it is held as:
46. In Inspector Prem Chand v. Govt. of NCT of Delhi [(2007) 4 SCC 566 : (2007) 2 SCC (L&S) 58 : 2007 AIR SCW 2532] this Court observed: (SCC pp. 570-71, paras 10-11) "10. In State of Punjab v. Ram Singh [(1992) 4 SCC 54 : 1992 SCC (L&S) 793 : (1992) 21 ATC 435] it was stated: (SCC pp. 57-58, para
5) '5. Misconduct has been defined in Black's Law Dictionary, 6th Edn., at p. 999, thus:
"Misconduct.--A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness."
Misconduct in office has been defined as:
"Misconduct in office.--Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act." ' 157 Spl.C.C.No.340 of 2015
11. In P. Ramanatha Aiyar's Law Lexicon, 3rd Edn., at p. 3027, the term 'misconduct' has been defined as under:
'Misconduct.--The term "misconduct" implies a wrongful intention, and not a mere error of judgment.
*** Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word "misconduct" is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being, construed. "Misconduct" literally means wrong conduct or improper conduct.' (See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju [(2006) 3 SCC 143 : 2006 SCC (L&S) 480] .)"
92. As per the said dictum the misconduct can be construed as not a mere error in judgment but an intentional act. In the instant case as per the earlier discussion it is clearly evidenced that there were lot of variations with respect to deposit of cheque and it was intentionally handed over by accused No.4 Nagaraj to the hands of other accused persons and it was accused No.1 who had inserted the account number of accused No.3 Chandrashekar who was the proprietor of M/s 158 Spl.C.C.No.340 of 2015 Aakash Enterprises. That apart the crucial aspect which is required to be noted is the accused No.4 Nagaraj had intentionally kept silent without intimating about the renewal of FD amount if an amount on 09.05.2013 though it was with in his knowledge and only 22.06.2013 when the Commissioner of MUDA i.e. P.W. 1 H.S.Shivaram had directed him to close the FD account so has to obtain the proceeds to the account of MUDA he had once again kept silent and later on at the instance of P.W.1 he had wrote a letter as per Ex.P.17 dated 29.06.2013 to close the account. The silence on the part of accused No.4 would clearly indicate a positive role being played by him and even other wise he had not handed over the letter to the bank till 02.07.2013. Hence it is clear that it was not a mere act of error in judgment and it was a deliberate act on the part of the accused No.4. Further whether the prosecution has established the same is required to be examined. When the above said aspects are considered in seriatim firstly the court has already dealt in detail with respect to the overtact of accused No.4 while discharging duty as FDA. Likewise the 159 Spl.C.C.No.340 of 2015 Judgment of the Hon'ble Apex Court which is reported in (1996) 10 SCC 193 (C. Chenga Reddy and others Vs State of A.P), wherein the question of dishonest intention is laid down by the Hon'ble Apex Court is to be appreciated in the case on hand. By looking into the said aspects the first two contentions of the prosecution that the accused had intentionally handed over the cheque to other accused persons would clearly indicate the dishonest intention and also the deliberate act on the part of the accused person. In this regard the court has relied upon the judgment of the Hon'ble Apex Court reported in (2009) 11 SCC 737 (R.Venkatakrishnan Vs. CBI) wherein it has been held as:
146. However, Sections 407 to 409 make special provisions for various cases in which property is entrusted to the enumerated categories of persons who commit the offence.
Criminal breach of trust by a public servant is dealt with under Section 409:
"409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property or with any dominion over property in his capacity of a public servant or in the way of his business 160 Spl.C.C.No.340 of 2015 as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
This section classes together public servants, bankers, merchants, factors, brokers, attorneys and agents. The duties of such persons are of a highly confidential character, involving great powers of control, over the property entrusted to them and a breach of trust by such persons may often induce serious public and private calamity. High morality is expected of these persons. They are to discharge their duties honestly.
The following are the essential ingredients of the offence under this section:
(1) The accused must be a public servant;
(2) He must have been entrusted, in such capacity with the property;
(3) He must have committed breach of trust in respect of such property.161
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93. Further in another Judgment of the Hon'ble Apex Court reported in 1980 (3) SCC 110 (Abdulla Mohammed Pagarkar Vs State) wherein it has been held as:-
19. Now this is hardly a proper approach to the requirements of proof in relation to a criminal charge. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the State to brief out, beyond all reasonable doubt, that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the Government. It is true that the total number of labourers working on a single day has been put by the prosecution witnesses mentioned above at 200 or less, while according to the summaries appended to the bills it varied on an average from 370 to
756. But then is it safe to rely on the mere impression of the prosecution witnesses, testified too long after the work had been executed, about the actual number of labourers employed from time to time? The answer must obviously be in the negative and the justification for this answer is furnished by the variation in the number of labour employed from witness to witness.
24. Learned counsel for the State sought to buttress the evidence which we have just above discussed with the findings recorded by the learned Special Judge and detailed as Items (a) to (e) in para 9 and Items (i) and (iii) in para 10 of this judgment. Those findings 162 Spl.C.C.No.340 of 2015 were affirmed by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be restated here, that they were correctly arrived at. But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant rules of the G.F.R. and even of ordinary norms of procedural behaviour of government officials and contractors in the matter of execution of works undertaken by the Government. Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out.
94. In the said Judgment the Hon'ble Apex Court has clearly held that the abuse of powers by a public servant was in furtherance of obtaining either for himself or any for some another person any valuable under or pecuniary advantage and it has been stressed upon by the Hon'ble Apex Court that the abuse of powers must involve dishonest intention. Since the entire evidence which is placed before the court would clearly indicate that the accused had intentionally and deliberately allowed accused persons meddle with the cheques of MUDA by inserting the account number of M/s Aakash Enterprises 163 Spl.C.C.No.340 of 2015 and later on encashing the same is proved by the prosecution, the provision under Sec. 13 of prevention of corruption act stands proved. The act of the accused squarely comes with in the purview of misconduct as enumerated in the said provision. Further in another judgment of the Hon'ble Apex Court reported in (2009) 8 SCC 1 (Sudhir Shantilal Mehta v. CBI,) wherein it has been held as:
60. It therefore stands established from the above that UCO Bank could only have discounted the bills of exchange out of bona fide commercial transactions as had been provided under the RBI circulars which were statutorily binding on UCO Bank.
62. In order that the Bank could discount a bill of exchange, it was necessary that it related to a bona fide or genuine commercial transaction and it was because of this requirement that the accused persons had gone to the extent of preparing false documents to give an appearance that the discounting related to bona fide commercial transaction.
64. An offence of criminal breach of trust by a public servant attracts the penal provision of Section 409 of the Penal Code. Indisputably, the Bank entrusted its funds to its officers;
they had the dominion over the said property; they were holding the said money in trust which is a comprehensive expression, inter alia, to denote a relationship of master and 164 Spl.C.C.No.340 of 2015 servant. The act of criminal breach of trust per se may involve a civil wrong but a breach of trust with an ingredient of mens rea would give rise to a criminal prosecution as well.
67. It is one thing to say that any circular letter issued by Reserve Bank of India being not within the public domain would not be law but it would be another thing to say that it did not contain any direction of law so as to attract the liability in terms of Section 405 of the Penal Code. Lawful directions were issued by Reserve Bank of India. The circular letter was meant for all scheduled banks. The authorities and/or officers running the affairs of the scheduled banks therefore were aware thereof. If it is binding on the banks, it would be binding on the officers.68. Any act of omission or commission on the part of any authority of the Bank would amount to acting in violation of any direction of law. A direction of law need not be a law made by Parliament or a legislature; it may be made by an authority having the power therefor; the law could be a subordinate legislation, a notification or even a custom.69. Indisputably, the higher authorities of the Bank were entrusted with or otherwise had dominion over the properties of the Bank. They were dealing with public funds. Indisputably again they were required to apply the same in terms of the circulars issued by the Bank as also Reserve Bank of India. It has been accepted at the Bar that failure on the part of the officers of the Bank to abide by the directives issued under the circulars would result in civil action. Subjecting the bank to a civil liability would thus attract one of the ingredients of criminal breach of trust. There cannot be, 165 Spl.C.C.No.340 of 2015 however, any doubt whatsoever that a mere error of judgment would not attract the penal provision contained in Section 409 of the Penal Code. The materials brought on record by the parties must be judged keeping in view the aforesaid legal position.70. The primary question is whether the property of the Bank was dishonestly used or disposed of in violation of any direction of law prescribing the mode therefor. The mode of disposal of the public money is prescribed in terms of the UCO Bank Manual and the circulars issued by Reserve Bank of India. It was, however, necessary for the prosecution to prove that the same was done with requisite mens rea.Illegality
89. Section 43 defines the terms "Illegal" or "Legally bound to do" in the following terms:
"43. 'Illegal', 'Legally bound to do'.--The word 'illegal' is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be 'legally bound to do' whatever it is illegal in him to omit."
It carries a very wide meaning. If any ground for civil action can be founded on the basis of any act of omission or commission on the part of a person, his act may be held to be illegal or it may be held that he was legally bound to do an act which he had omitted to do. If a person is guilty of breach of a departmental order, he may be held to be guilty as he was legally bound to act in terms thereof. 90. It does not matter whether the violation was in relation to the circular issued by Reserve Bank of India or whether it was in violation of the guidelines issued by the Bank itself. The 166 Spl.C.C.No.340 of 2015 question as to whether the directions are statutory in character and binding in law may not depend upon the nature of the powers to be exercised by Reserve Bank of India.
Discounting and rediscounting of bills of exchange is an integral part of banking transactions. Purchase and sale of securities is also a part of the banking transactions as would appear from Section 6(1)(a) of the Banking Regulation Act.95. The Manual, therefore, prescribes exercise of greater caution in the cases where the drawer and drawee of the bill are identical or connected persons. It provides for the meeting of safeguards by way of making an enquiry as regards the creditworthiness, a satisfaction of which was required to be arrived at by the Manager. Thereabout, having regard to the credit rating, business integrity and past dealing, the Manual provides that those borrowers who do not satisfy the said tests laid down would not be eligible for any loan. Evidently, all these procedural requirements necessary for safeguarding the interests of the Bank were thrown to the winds.
95. To sum up the entire case which is placed before the court, it is relevant to note that the entire case of prosecution is based on circumstantial evidence, wherein PW-1 Dr. H S Shivaram, being the Commissioner of MUDA had directed the Accused No.4 Nagaraj, who was the FDA and custodian of accounts branch to make a deposit of Rs5 crores at Indian Bank, Mandya and Five cheques of 167 Spl.C.C.No.340 of 2015 Rs1 crore each came to be issued, of which two cheques were issued on 08-02-2013, on cheque on 14-02-2013 and two cheques were drawn on 19-02-2013 towards opening FD account. However at the time of obtaining signature of the Commissioner of MUDA, Accused No.4 Nagaraj had prepared cheques in such a manner that he had left sufficient space to insert account number and after obtaining signature, he had handed over the same to other Accused persons, who in furtherance of their common intention to cheat and defraud MUDA, had hatched conspiracy and Accused No.1 had inserted the account No.6060020206 pertaining to M/s Akash Enterprises of Accused No.3 Chandrashekar and presented the same. The Accused No.3 Chandrashekar had issued a letter to the Branch Manager at Indian Bank, claiming that he was a civil contractor and had done field works for MUDA and towards the same the said amount was being disbursed to him as per EX P93 and on the basis of the same, the amount was credited to the account of M/s Akash Enterprises and from that account several transfers were made to the account of other Accused persons and also to the account of ARS Pictures, A Square etc., which is all proved by the prosecution by producing KYC 168 Spl.C.C.No.340 of 2015 documents of the said accounts and also by leading the evidence of concerned bank officials. Further Accused persons had prepared forged FD receipts as per EX P20 to EX P24 and with the help of Accused No.4 got it placed in the custody of MUDA purporting it to be genuine document. When the Commissioner of MUDA had directed to close the FD accounts it was found that no such FD deposit were being made and the same had led to filing of complaint. The prosecution have proved that the insertions in the cheque was being made by Accused no.1 by referring the same to the hand writing expert at FSL Bangalore, who was examined as PW-31 Syed Asgar Imam who on verification of specimen signature and writings and by comparing the insertion on cheque and also on the FD receipts had arrived at the conclusion of forgery as per his report at EX P215 to EX P 219. The transfer of amount belonging to MUDA to the account of M/s Akash Enterprises and from there to the account of other Accused persons coupled with the report of the handwriting expert and conniving role played by the Accused no.4 also has been proved by the prosecution and hence they are able to establish and prove the allegations which is leveled against Accused persons. 169
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96. Before parting it would be relevant to note that the act of the accused in committing economic offence by violating the procedures laid down by the legislature can not be brushed aside as a minor mis conduct. The respect for law is of cardinal importance which has been laid down by the Hon'ble Apex Court in the judgment reported in (1993) 4 SCC 216 (Ramachandra Ganpat Shinde Vs. State of Maharashtra) wherein it has been held as:
13. Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the people is the source and succour to invigorate justice intertwined with the efficacy of law. The principle of justice is ingrained in our conscience and though ours is a nascent democracy which has now taken deep roots in our ethos of adjudication -- be it judicial, quasi-judicial or administrative as hallmark, the faith of the people in the efficacy of judicial process would be disillusioned if the parties are permitted to abuse its process and allowed to go scot free. It is but the primary duty and highest responsibility of the court to correct such orders at the earliest and restore the confidence of the litigant public, in the purity of the fountain of justice;
remove stains on the efficacy of judicial adjudication and respect for rule of law, lest people would lose faith in the courts and take recourse to extra-constitutional 170 Spl.C.C.No.340 of 2015 remedies which is a death-knell to the rule of law.
97. Last but not the least the manner in which the honesty and probity in public life is important has been enumerated by the Hon'ble High Court of Delhi in the judgment reported in 1997 SCC OnLine Del 382 wherein it is held as:
"Let honesty be as the breath of thy soul; then shalt though reach the point of happiness, and independence shall be thy shield and buckler, thy helmet and crown ; then shall thy soul walk upright, nor stoop to the silken wretch because he hath riches, nor pocket an abuse because the hand which offers it wears a ring set with diamonds." - Frannklin.
"The whole of Government consists in the art of being honest." - Thomas Jefferson, Works VI, 186.--
98. By looking into the facts of the case coupled with the evidence led before the court, the prosecution has established the Accused No.4 being public servant had committed offence under section 13(2) R/w Sec 13(1) (C) &(d) of Prevention of Corruption Act, 1988. Consequently, point No.8 is answered in Affirmative .
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99. Point No.9 :- The prosecution has sought for confiscation of the property mentioned in the schedule to be belonging to respondent no.1 to 4 wherein accused No.1 is arrayed as respondent No.1. In the petition filed u/s 3 of the Criminal Law (Amendment) Ordinance 1944 r/w Sec.5(6) of the PC Act 1988 it is stated by the prosecution that the properties were either purchased or were being enjoyed by the accused persons through the proceeds of crime. In order to butters their contention the IO has filed the affidavit and has furnished documents which is a sale deed towards the same.
100. The Learned counsel for respondent No.1 to 4 have filed separate objections by contending that the properties mentioned in the schedule were not purchased through the proceeds of crime.
101. The predecessor in office had passed an interim order attaching the properties mentioned in the schedule. Now by considering the entire evidence lead before the court and also the materials available before the court it would be relevant to ascertain whether the IO had made out sufficient grounds to 172 Spl.C.C.No.340 of 2015 allow the miscellaneous petition. If the properties mentioned in the schedule are looked in to the Schedule-1 with respect to house site indicates that it was purchased through the sale deed dated 01.06.2013 and also item no.2 of Schedule-II property which was purchased in the name of respondent No.2 Smt. G.K.Rani on 01.06.2013 is also evidence by execution of the registered sale deed and likewise item No.3 which is the house property stands in the name of responded No.4 Javare Gowda which was purchased on 21.02.2013. The Learned Public Prosecutor has argued at the length the property purchased indicates that the same was transferred from the crime proceeds. In order to butter her submission she has pointed out that as per Ex.P.156 a RTGS application was filed on 19.02.2013 for Rs.1,30,000/- towards purchasing of property by respondent No.3 G.K.Rupesh Kumar who is the brother in law of accused No.1 and also who is the proprietor of M/s Krishna Pharms. It is also submitted that as per Ex.P.157 another RTGS transfer was made by A-1 K.Anand on 19.02.2013 for Rs.5 lakhs and Rs.4 lakhs was transferred from 173 Spl.C.C.No.340 of 2015 the account of A R Logistics to Krishna Pharma on 23.02.2013 totally indicating of transfer of Rs.10,30,000/- to the account of respondent No.3 who was the proprietor of M/s Krishna Pharma.
102. The prosecution has also established that a transfer of Rs.1,50,000/- was made on 13.04.2014 through the account of A R Logistic to the account of G.K.Rani at Axis Bank as per Ex.P.132, Ex.P.133, Ex.P.147 and Ex.P.149. The record also indicates that respondent No.4 Javare Gowda had purchased schedule-III property on 21.02.2013 for which the registration amount was transferred from the account of accused No.1 K.Anand. Though it has been submitted by the Learned counsel for respondents that the crime proceeds were not at all received by them, no proper explanation has been given by them with respect to transferring of huge amount from the account of accused No.1 to the account of respondent No.2 to 4. It is also relevant to note that the first cheque at Ex.P.4 and Ex.P.5 were presented to the bank on 08.02.2013 and subsequently three other cheques were submitted on 19.03.2013, 14.02.2013. The 174 Spl.C.C.No.340 of 2015 transactions mentioned above had taken place on 21.03.2013 and also in the month of June 2013 towards purchasing of property. All these incidents would clearly indicate of transferring of crime proceeds. As such the interim order has to be made absolute and prosecution has established that the properties were purchased through the proceeds of crime. Accordingly I answer point no.9 in Affirmative.
103. Point No.10 : In view of my foregoing reasonings and conclusions arrived at by me, during the discussions of Point Nos.1 to 9, I proceed to pass the following:-
ORDER Acting U/s. 235(2) of Cr.P.C., the Accused 1 K.Ananda @ Kebballi Ananda, Accused No.2 H.S. Nagalingaswamy, Accused No.3 Chandrashekar, Accused No.4 H.K. Nagaraja and Accused No.5 K.B.Harshan are hereby convicted for the offences punishable under Sec 120-b, 420, 409, 467, 468, 471 of IPC and Sec.13(2) r/w 13 (1)(c) and (d) of the Prevention of Corruption Act, 1988.
Consequently the Crl.Mis. No. 377/19 is hereby allowed and the immovable properties mentioned in Schedule I to Schedule III of the Petition stands confiscated to the State.
Bail bonds and surety bonds stand cancelled.175
Spl.C.C.No.340 of 2015 (Dictated partly to the Judgment Writer orally, transcribed and typed by her, corrected and dictated to the typist on the computer directly then pronounced by me in the open court this the 08 th day of September 2022) (Santhosh Gajanan Bhat) XLVI Addl. City Civil & Sessions Judge & Spl. Judge for CBI Cases, Bengaluru.
ORDER REGARDING SENTENCE In the instant case the accused No.1 to 5 have been convicted for the offences punishable u/S 120-B, 409, 420,467,468,471 of IPC and u/S 13(2) r/w Sec.13(1) (c) & (d) of Prevention of Corruption Act 1988. The accused are secured before the court. Learned Senior Public Prosecutor is also present.
2. It is the submission of the Learned Public Prosecutor that the offences against the accused for the aforesaid offences are proved beyond reasonable doubt. It has been submitted by her that the court has to consider the conduct of the accused and also the gravity of the offence committed by them. It is her submission that though the offences alleged are not punishable 176 Spl.C.C.No.340 of 2015 with extreme penalty of death, the same has to be construed seriously since it is economic offence which bleeds the economy of the country. Further she has pointed out that the accused persons had hatched a conspiracy to cheat and defraud the amount belonging to Mandya Urban Development Authority to an extent of Rs.5 crore and inconnivance and active support of accused No.4 Nagaraj who was working as FDA at MUDA they were able to execute the same and the proceeds of the crime was initially deposited to the account of A-3 Chandrasheakr and from there it was transferred to other persons account and was misutilized by them. Accordingly the act of the accused persons has to be viewed seriously as they had cheated and defrauded the amount belonging to public exchequer. Further she has argued that as per the provision of Sec.409 of IPC the entrustment of property which is nothing but the domain over the cash is proved by the prosecution and also the conduct of the accused No.4 in tampering with the cheques and also accepting the forged FD receipts is proved by the prosecution.
Further the Economic Offences are to be considered as class 177 Spl.C.C.No.340 of 2015 apart and the same requires to be considered stringently and no lenient view can be taken. Hence she has sought for convicting the accused persons by imposing maximum imprisonment as contemplated under the above said provisions and also by imposing suitable fine so as to make good the loss caused to the MUDA. Lastly she has argued that the sentence which is to be imposed by the court should be proportionate to the offence committed by the accused and should act as deterrent to the society. Hence she has sought for awarding maximum sentence and also suitable fine on the accused persons.
3. The learned counsel for accused No.1 has vehemently argued that he has to take care of his aged mother and also two children of his elder brother and apart from that he had suffered reputation in the society due to the above case and his entire promising political carrier is diminished. Hence he has sought for imposing minimum sentence and also it is been submitted by him that he had already undergone imprisonment for about 2 years during the course of trial. Accordingly he has sought to take lenient view in this regard 178 Spl.C.C.No.340 of 2015 and has prayed to award minimum sentence as permissible under law. Accused No.1 is also afforded with an opportunity to submit on quantum of sentence and he has also reiterated the submission of his counsel.
4. Accused no.2 has submitted that he is suffering from various ailments and was taking continuous treatment. Hence he has sought for taking lenient view. The learned counsel for accused No.2 Sri.MS advocate has submitted that when he was under incarceration and his thyroid problem had aggravated and apart from that he had already under gone nearly two and half years of imprisonment as under trial prisoner. Hence it is the submission of the learned counsel that the accused No.2 is not having any criminal antecedent nor is an habitual offender. Hence he has sought for awarding minimum sentence as permissible under law.
5. Accused No.3 has submitted that he had met with an accident and had suffered multiple fractures to his leg and 179 Spl.C.C.No.340 of 2015 has to take care of his family and does not have any movable or immovable properties to look after his family. The learned counsel for him has also submitted that the medical condition of accused No.3 can be taken into consideration and on that basis a lenient view may be taken.
6. Accused No.4 has submitted that he is aged about 65 years and had put in unblemished service of nearly 30 years at MUDA and inspite of that the present case had surfaced against him and his medical condition was deteriorating as he was suffering from gangrene attack. Accordingly he has sought for taking a lenient view.
7. Accused No.5 has submitted that he has to take care of his aged mother and has suffered spinal cord injury and also he is suffering from various ailments. Accordingly he has sought for taking a lenient view.
8. Heard the parties and the point that requires to be considered is what would be the appropriate sentence that can 180 Spl.C.C.No.340 of 2015 be imposed upon the accused No.1 to 5. Time and again it has been reiterated by the Hon'ble Apex court that in matters of awarding sentence the court should be cautious and has to consider all the relevant factors in order to arrive at a just conclusion. It is also the cardinal principles of law that the nature and the gravity of the crime but not the criminal, which are germane for consideration to impose suitable sentence. Apart from that the Hon'ble Apex court has held that at the time of passing of the sentences the court has to make an exercise by precisely pointing out the aggravating and mitigating factors. When the said aspect is considered in the wake of the facts and circumstances of the case the chart of following aggravating factors can be drawn which are :
a. The accused No.4 was entrusted with domain over public property when he was discharging the public duty and he in furtherance of criminal conspiracy had cheated and defrauded MUDA to an extent of Rs.5 Crores along with other accused persons.
b. The accused no.4 had breached the trust which was reposed upon him and had caused dent to the public at large in particular with respect to the economic activity of the 181 Spl.C.C.No.340 of 2015 country in furtherance of his conspiracy with other accused persons.
c. The act of the accused persons were a deliberate and well planned since they had intentionally opened account in the name of M/s Aakash Enterprises and later on furnished forged FD receipts to MUDA knowing fully well that they can take advantage of the nuance of law.
d. The act of the accused persons are a degradation of conduct and amounts to breach of trust with respect to public money.
The mitigating factors which can be enumerated are as follows:
a. The accused are not habitual offenders.
b. The accused persons does not have any antecedent of criminal offence. c. The accused persons have to take care of their family members and they are suffering from various ailments.
d. The accused persons are having deep roots in the society and having good reputation in the society.182
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9. The court has considered the aggravating and mitigating factors and on consideration of the same it is to be kept in mind that the act of the accused persons is to be termed as white collared offence which bleeds the economy of the nation. Further the maxim 'Nullum Crimen Sine Lege' which means the principle of legality in the rule for construing criminal statutes is to be infavor of citizens and also the approach should be towards the social welfare. The important aspect of socio economic offences is to be emphasized with the gravity of the harm caused to the society and also the nature of offences themselves. Even though the gravity of offence cannot be easily deciphered the same requires to be considered in a manner which would indicate the mode of execution in secrecy by the shrewd and dexterous persons with sophisticated means. Time and again it has been held by the Hon'ble Apex Court that the cry of the victim has to be considered. In the instant case it is the society at large which suffers and bleeds due to the act of the accused persons. The court has also relied upon the authority of the Hon'ble Apex Court reported in (2012) 12 SCC 183 Spl.C.C.No.340 of 2015 384 (State of Maharashtra through CBI Vs. Balakrishna Dattatreya Kumbar) wherein it has been held as:
17. The aforesaid order is, therefore, certainly not sustainable in law if examined in the light of the aforementioned judgments of this Court.
Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could not be undone as the respondent employee, if ultimately succeeds, could claim all the consequential benefits. The submission made on behalf of the respondent, that this Court should not interfere with the impugned order [ Criminal Application No. 157 of 2008 in Criminal Appeal No. 1243 of 2007, decided on 8-4-2008 (Bom)] at such a belated stage, has no merit for the reason that this Court, vide order dated 9-7-2009 [State of Maharashtra v. Balakrishna Dattatrya Kumbhar, SLP (Cri) CRLMP No. 9416 of 2009, order dated 9-7-2009 (SC) wherein it was directed:"Delay condoned. Issue notice. In the meantime, there will be stay of the impugned order."] has already stayed the operation of the said impugned order [ Criminal Application No. 157 of 2008 in Criminal Appeal No. 1243 of 2007, decided on 8-4-2008 (Bom)] .
10. When the said principles are applied to the case on hand the fact which emerges is the accused had committed an 184 Spl.C.C.No.340 of 2015 offence u/S 409 of IPC by breaching the trust imposed upon them. The accused No.4 being the FDA and custodian of account section at MUDA had intentionally handed over the cheque to accused No.1 to insert the account number of accused No.3 firm and later on he had produced the forged FD receipts to the MUDA so has to indicate that they were the genuine one and to cover up the illdeeds of accused persons. Though now the accused persons are claiming to be suffering from ill health and even though it is noticed that accused No.3 has under gone multiple surgeries to his lower limb, the same can not be a mitigating factor when compared with the nature of the offence he has committed in furtherance of the conspiracy with other accused persons. The account transactions would indicate that after depositing of amount of Rs.5 crores to the account of M/s Aakash Enterprises it was debited and transferred to the accounts belonging to other accused persons who were the beneficiaries of the same. Even it is claimed that they had received minimum amount or they were not beneficiaries, the same does not holds good. The said act can 185 Spl.C.C.No.340 of 2015 not be considered as an isolated one and also it should be seriously viewed from the point of view of the loss caused to the Government exchequer. The said act cannot be considered as a minor act and even the court has to take a serious note of the offences committed by them. Under this circumstances the act of misconduct which is proved against the accused persons is to be considered seriously. Apart from that the provisions u/S 409 of IPC would clearly cast a duty on the court that when a person entrusted with dominion over a property he has to take care of the same in a proper and manner which is in accordance of law. Further the provision clearly indicates that they shall be sentenced with imprisonment of life or with imprisonment of either description which may extent to 10 years and shall also be liable to fine. The word which has been used with respect to imposing of fine is "shall". Which clearly indicates that there is no scope for showing leniency and the court shall impose appropriate fine to the act committed by the accused persons. By considering the same it is crystal clear that the court can not take a lenient view and also the loss caused to the public 186 Spl.C.C.No.340 of 2015 exchequer due to the mis conduct as contemplated u/S 13(1)(c)
(d) & and also u/S 13(2) of Prevention of Corruption Act. Accordingly it would be appropriate to note that suitable fine is required to be imposed so as to make good the loss caused to the Government exchequer i.e. Mandya Urban Development Authority. Obviously the act of the accused persons in showing scant respect to the law of the land and causing loss to the exchequer has to be come down heavily. Under the circumstances in my humble opinion that no leniency can be shown in matters pertaining to economic offences. In fact as held in various dictums of the Hon'ble Apex Court and also by the Hon'ble High Court of Karnataka the economic offences are committed against the society at large. Hence I proceed to pass the following order:
ORDER The accused No.1 Kebballi Anand, Accused no.2 H.S. Nagalingaswamy, Accused No.3 Chandrashekar, Accused No.4 H.K.Nagaraj and Accused No.5 K.B.Harshan are convicted for the offences punishable u/S 420 of IPC and they are sentenced to undergo 187 Spl.C.C.No.340 of 2015 a Rigorous Imprisonment for a period of 7 years and imposed with a fine of Rs.
1,00,00,000/- each (Rupees One Crore each) and in default of payment of fine they shall undergo a simple imprisonment for a period of 2 years.
The accused No.1 Kebballi Anand, Accused no.2 H.S. Nagalingaswamy, Accused No.3 Chandrashekar, Accused No.4 H.K.Nagaraj and Accused No.5 K.B.Harshan are convicted for the offences punishable u/S 120-B of IPC and they are sentenced to undergo Rigorous Imprisonment for a period of 7 years and a fine of Rs.10,000/- each (Rupees Ten Thousand each) and in default of payment of fine they shall under go a simple imprisonment for a period of 2 years.
The Accused No.4 H.K.Nagaraj is hereby convicted for the offences punishable under section 409 of IPC and sentenced to undergo Rigorous imprisonment for a period of 7 years and fine of Rs.50,000/- and in default of payment of fine he shall undergo a simple imprisonment for a period of 2 years.
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Spl.C.C.No.340 of 2015 The accused No.1 Kebballi Anand, Accused no.2 H.S. Nagalingaswamy, Accused No.3 Chandrashekar, Accused No.4 H.K.Nagaraj and Accused No.5 K.B.Harshan are hereby convicted for the offences punishable u/S 467 of IPC and they are sentenced to undergo Rigorous imprisonment for a period of 7 years and fine of Rs.20,000/- each (Rupees Twenty Thousand each) and in default of payment of fine they shall undergo a simple imprisonment for a period of 2 years.
The accused No.1 Kebballi Anand, Accused no.2 H.S. Nagalingaswamy, Accused No.3 Chandrashekar, Accused No.4 H.K.Nagaraj and Accused No.5 K.B.Harshan are hereby convicted for the offences punishable u/S 468 and 471 of IPC and they are sentenced to undergo Rigorous imprisonment for a period of 3 years and fine of Rs.10,000/-each (Rupees Ten Thousand each) and in default of payment of fine they shall undergo a simple imprisonment for a period of 6 months.
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Spl.C.C.No.340 of 2015 The accused No.4 H.K.Nagaraj is hereby convicted for the offences punishable under Sec.13(2) r/w 13(1)(c)&(d) under Prevention of Corruption Act 1988 and he is sentenced to undergo Rigorous Imprisonment for a period of 7 years and a fine of Rs.25,000/- and in default of payment of fine he shall undergo a further simple imprisonment for a period of 1 year.
Acting u/S 357(a) of Cr.P.C suitable compensation is required to be ordered to the victim i.e. Mandya Urban Development Authority, Mandya and out of the total fine amount of Rs.5,02,75,000/- (Five Crore Two Lakhs Seventy Five Thousand) a compensation of Rs.5,02,00,000/- ( Five Crore Two Lakhs) is awarded to Mandya Urban Development Authority, Mandya and remaining amount is here by ordered to be forfeited to the state.
The sentences ordered shall run concurrently and the accused No.1 to 5 shall be entitled for set off as contemplated u/s. 190
Spl.C.C.No.340 of 2015 428 of Cr.P.C. for the period of detention already undergone if any by them as under
trial prisoners in the above case.
In the event of deposit of fine amount same shall be forfeited to State.
Office is hereby directed to furnish copy of the Judgment to the accused persons forthwith.
The bail bond and surety bonds executed by accused persons is extended for a period of 6 months.
XLVI Addl. City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru City.
ScheduleI
1. Property No. and House Site measuring 36 ft. x 30 ft. in address Town Municipality Khatha No.D4/3806/A/K.V.404/A at Kuvempu Nagar, Mandya City, Mandya.
2. Regd. By Absolute Sale Deed document No.MDY1 02870201314 of Book No.1 & CD No.MDYD146 of the Sub Registrar, Mandya.191
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3. Extent of land House Site measuring 36 ft x 30 ft.
4. Date of 01062013 acquisition
5. Value of the Regd. Value Rs.3,57,000/ property
6. Boundaries East by : Road West by : Vacant site No.405, North by : Vacant No.375374 and South by : Site being purchased by G.K.Rani.
ScheduleII
1. Property No. and House Site measuring 36 ft. x 30 ft. in address Town Municipality Khatha No.D4/3806/A/K.V.404/A at Kuvempu Nagar, Mandya City, Mandya.
2. Regd. By Absolute Sale Deed document No.MDY1 02869201314 of Book No.1 & CD No.MDYD146 of the Sub Registrar, Mandya.
3. Extent of land House Site measuring 36 ft x 30 ft.
4. Date of 01062013 acquisition
5. Value of the Regd. Value Rs.4,28,000/ property
6. Boundaries East by : Road West by : Vacant site No.405, North by : Site being purchased by G.K.Roopesh Kumar and South by : Road ScheduleIII 192 Spl.C.C.No.340 of 2015
1. Property No. and Residential House property built on site address measuring 40 ft x 60', MCC Khatha No.D3/170/K.R.D.1006 AT 23rd Cross, APMC Market Road, Kiragandur Layout, Mandya City.
2. Regd. By Document No.MDY112564/201213 of Book No.1 & CD No.MDYD141 of the SubRegistrar, Mandya.
3. Extent of land House built on site measuring 40 ft. x 60 ft.
4. Date of 21.02.2013.
acquisition
5. Value of the Regd. Value Rs.25,00,000/ property
6. Boundaries East by : Site of S.D.Nanjaiah West by : Site of S.Sharadamma North by : Site of B.Nanjaiah and South by : CMC Road ANNEXURE List of witnesses examined for the Complainant :
PW.1 : Dr. H.S.Shivaramu
PW.2 : V.Kathirvel
PW.3 : R.Ramaswamy
PW.4 : Kumar Naik
PW.5 : Nagaraj Patil
PW.6 : N.H. Chikkanna
PW.7 : S.Praveer
PW.8 : M.M. Jayaram
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PW.9 : Smt.P.Shivamma
PW.10: K.Sadanandam
PW.11: D.Gopal
PW.12: Ravi
PW.13: Smt. Radhamma
PW.14: G.B. Boregowda
PW.15: K.N. Ravindra Kumar
PW.16: K.P. Suresh
PW.17 : T.K. Nagaraju
PW.18 : M.N.Krishna Iyengar @ Krishna PW.19 : Dr. V.J. Shobha Rani PW.20 : N. Venkatesha PW.21 : M.J. Abhinandan PW.22 : N.Sivaprasad PW.23 : G.Sonnappa PW.24 : S.Subramanian PW.25 : A.Devaraju PW.26 : Siva Prasad Choudhury PW.27 : B.M. Krishnamurthy PW.28 : T.Venkatesh Prasad PW.29 : S.N. Lokesh PW.30 : K.M. Shivaraju PW.31 : Syed Asgar Imam PW.32 : K.Y. Guruprasad List of documents exhibited on behalf of the Complainant : 194
Spl.C.C.No.340 of 2015 Ex.P.1 : The letter dtd. 28.08.2012 P.1(a) : Endorsement with Signature of PW.1 P.1(b) : Signature of witness for Ex.P.1 P.1(c) : Erased portion of Ex.P.1 Ex.P.2 : Accounts file P.2 (a) : Note sheets P.2 (b) : Note written by H.K. Nagaraju at Sl. No.316 of Page No.66 of Ex. P.2 (a) P.2 (c) & (d) : Signatures of H.K. Nagaraju in Ex.P.2 (b)Note P.2 (e) : Note in Sl. No.318 at page No.66 P.2 (f & g) : Signatures of PW.1 & H.K. Nagaraju P.2 (h) : The note at Sl. No.322 in page No.67of Ex.P.2(a) P.2 (i) & (j) : Signatures of PW.1 and H.K. Nagaraju in Ex.P.2(a) P.2 (k) : Note at Sl.No.334 of page No.69 in Ex.P.2 (a) P.2 (l) & (m) : Signatures of PW.1 and H.K. Nagaraju P.2 (n) : Note in Ex.P.2(a) at Sl.No.336 of Page No.69 P.2 (o) & (p) : Signatures of PW.1 and H.K. Nagaraju P.2 (q) : Office Note at Sl. No. 337 of Page 69 of Ex.P.2 P.2 (r) & (s) : Signatures of PW.1 & H.K. Nagaraju P.2 (t) : Office note at Sl. No.340 at Page 70 of Ex.P.2 P.2 (u) & (v) : Signatures of PW.1 and H.K. Nagaraju P.2 (w): relevant note at Page No.73 at Sl.No.358 of Ex.P.2(a) P.2 (x) : Signature of H.K. Nagaraju P.2 (y) : relevant portion at Sl. No.359 in Ex.P.2 (a) P.2 (z) : signature of witness P.2 (aa): Note at Sl. No.360 in Page No.74 of Ex.P.2 (a) P.2(ab) 195 Spl.C.C.No.340 of 2015 & (ac) : Signature of PW.1 and H.K. Nagaraj Ex.P.3 : letter dated 07.02.2013 P.3 (a): Initial of PW.1 P.3 (b): Seal portion on Ex.P.3 Ex.P.4 & 5:2 Cheques of Allahabad Bank bearing Nos. 687649 and 687650 dated 08.02.2013 P.4 (a) :
& 5 (a) : Signatures of PW.1 on two cheques P.4 (b) :
& 5 (b) : Signatures of H.K.Nagaraju on two cheques P.4 (c) :
P.5 (c) : A/c No.6060020206 in all 5 cheques P.11 (c): in Ex.P.4,5,11, 12 and 15 P.12 (c): P.15 (c): P.4(d) : Signature on cheque of PW.10 Ex.P.6 & P.7 : Letter dtd. 08.02.2013 of PW.1 P.6 (a) & 7 (a) : Signatures of PW.1 P.6 (b) & 7 (b) : Signatures of H.K.Nagaraju P.6 (c): writing portion on Ex.P.6 P.7 (c) : writing portion on Ex.P.7 Ex.P.8 : Empty cheque book with record slip P.8 (a) & (b) : relevant entries in Ex.P.8 P.8 (c) & (d) : Initials of witness PW.1 in Ex.P.8 P.8 (e) & (f) : relevant entries in Ex.P.8 P.8 (g) & (h) : initials of witness PW.1 on Ex.P.8 P.8 (i) : relevant entries dated 19.02.2013 in Ex.P.8 196 Spl.C.C.No.340 of 2015 P.8 (j) : initial of PW.1 in Ex.P.8 Ex.P.9 : Investment Register P.9 (a) : Page No.18 of said register P.9 (b) & (c) : Signatures of PW.1 & H.K.Nagaraju in Sl.Nos.35 & 36 P. 9(d) &(e) : Signatures of PW.1 and Nagaraju P.9 (f) : The relevant entry at Sl. No.43 in Page
No.19 along with signature of witness.
Ex.P.10: General cash book P.10 (a) : relevant page no. 135 of said register P.10 (b) :relevant entries in page No.135 of Ex.P.10 P.10 (c) & (d) : Signatures of PW.1 and H.K. Nagaraju P.10 (e) : relevant page No.136 in Ex.P.10 P.10 (f) : relevant entries in Page No.136 P.10 (g) & (h) : Signatures of PW.1 and H.K. Nagaraju P.10 (i) : relevant entries at Page No.136 in Ex.P.10 (e) & 10 (j) : Signature of witness. P.10 (k) : relevant page No.137 in Ex.P.10 P.10 (l) : relevant entry in page No.137 in Ex.P.10 P.10 (m) & (n) : Signatures of PW.1 and Nagaraju in Ex.P.10 Ex.P.11 & P.12: 2 cheques of Allahabad Bank bearing Nos.687652 and 687653 dtd.14.02.2013 P.11(a) & 12(a) : Signatures of PW.1 P.11(b) & 12(b) : Signatures of H.K. Nagaraju Ex.P.13 & Ex.P.14 : 2 letters dated : 14.02.2013 197 Spl.C.C.No.340 of 2015 P.13 (a) & 14(a) : Signatures of PW.1 P.13 (b) & 14(b) : Signatures of H.K. Nagaraju P.13 (c) : Seal on Ex.P.13 P.14(c) : forged Signature on Ex.P.14 Ex.P.15 : Cheque of Allahabad Bank bearing No.687656 dtd.19.02.2013 P.15(a) : Signature of PW.1 P. 15(b) : Signature of Nagaraju Ex.P.16 : Covering letter dtd. 19.02.2013 P.16 (a): Signature of PW.1 P.16 (b): Signature of Nagaraju P.16 (c): seal portion on Ex.P.16 Ex.P.17 : Covering letter P.17 (a): Signature of PW.1 P.17 (b): Signature of H.K. Nagaraju P.17 (c): writing portion of PW.4 on Ex.P.17 Ex.P.18 : reminder letter dtd. 04.07.2013 P.18(a): Signature of witness PW.1 P.18 (b): Signature of H.K. Nagaraju P.18 (c): Signature of CW.2 Kadirvelu on Ex.P.18 Ex.P.19 : Complaint P.19 (a): Signature of PW.1 Ex.P.20 Fake FDR's in 5 numbers to Ex.P.24 :
P.20(a) : Specimen signature No.R653
P.21(a) : on Ex.P.20 to Ex.P.24
P.22(a) :
P.23(a) :
P.24 (a):
198
Spl.C.C.No.340 of 2015
Ex.P.25 : Letter written by accused No.2
P.25 (a) : Postal cover
Ex.P.26 : Letter dated 23.08.2013
P.26 (a) : covering letter dtd.09.12.2014
Ex.P.27 : The copy of the office order dtd.30.01.2013
P.27 (a): Signature of witness PW.1
Ex.P.28
& Ex.P.29 : two letters dtd. 10.07.2014
Ex.P.30 : Account opening form including annexure
P.30 (a) : Signature of PW.8 on Ex.P.30
Ex.P.31 : Credit voucher
P.31 (a): Initial on Ex.P.31 of PW.2
Ex.P.32 : Statement of account of M/s. Akash
Enterprises along with certificate u/s. 65(B) of Evidence Act and Sec.2(A) of Indian Bankers Books Evidence Act.
Ex.P.33 : Cheque bearing No.581594 dtd.20.11.2012 P.33 (a): Signature of PW.9 on Ex.P.33 cheque Ex.P.34 : Cheque bearing No.581598 dtd.15.11.2012 P.34 (a): Signature of PW.11 on Ex.P.34 Ex.P.35 : Cheque bearing No.581595 dtd.20.11.2012 P.35 (a): Signature of PW.12 on Ex.P.35 Ex.P.36 : Cheque bearing No.581596 dtd.20.11.2012 Ex.P.37 : Cheque bearing No.581591 dtd.11.02.2013 P.37 (a): Signature of PW.14 on Ex.P.37 cheque Ex.P.38 : Cheque bearing No.581581 dtd.11.02.2013 199 Spl.C.C.No.340 of 2015 Ex.P.39 : Credit slip dated 11.02.2013 Ex.P.40 : Cheque bearing No.581580 dtd.11.02.2013 Ex.P.41 : Credit slip dated 11.02.2013 Ex.P.42 : Cheque bearing No.581593 dtd.15.11.2012 P.42 (a): Signature of PW.15 on Ex.P.42 cheque Ex.P.43 : Cheque bearing No.581597 dtd.15.11.2012 P.43 (a): Signature of PW.16 on Ex.P.43 cheque Ex.P.44 : Cheque bearing No.581579 dtd.09.02.2013 Ex.P.45 : Cheque bearing No.581582 dtd.11.02.2013 Ex.P.46 : Cheque bearing No.581584 dtd.12.02.2013 Ex.P.47 : Credit slip dated 12.02.2013 Ex.P.48 : Cheque bearing No.581583 dtd.12.02.2013 Ex.P.49 : Credit slip dtd. 12.02.2013 Ex.P.50 : Cheque bearing No.581586 dtd.12.02.2013 P.50 (a): Signature of PW.4 Ex.P.51 : Cheque bearing No.581590 dtd.20.11.2012 P.51 (a): signature of PW.18 on back side of cheque Ex.P.52 : Cheque bearing No.581569 dtd.12.02.2013 Ex.P.53 : The credit slip dtd.12/02/2013 Ex.P.54 : Cheque bearing No.581587 dtd.12.02.2013 200 Spl.C.C.No.340 of 2015 Ex.P.55 : Debit voucher of Indian Bank dtd.13.02.2013 Ex.P.56 : Credit slip dtd. 12.02.2013 Ex.P.57 : Cheque bearing No.581599 dtd.20.11.2012 Ex.P.58 : Cheque bearing No.580102 dtd.18.02.2013 P.58 (a): Signature of PW.4 on Ex.P.58 Ex.P.59 : Credit slip dtd. 18.02.2013 Ex.P.60 : Cheque bearing No.580101 dtd.13.02.2013 P.60 (a) : Initial over Ex.P.60 of PW.4 Ex.P.61 : Cheque bearing No.180113 dtd.18.02.2013 P.61(a) : Cheque bearing No.580106 dtd.19.02.2013 P.61(b) : signature of witness P.61 (c): Signature of witness Ex.P.62 : Cheque bearing No.580107 dtd.19.02.2013 P.62 (a): Signature of witness Ex.P.63 : Credit slip dtd. 19.02.2013 P.63 (a): signature of witness Ex.P.64 : Cheque bearing No.580111 dtd.19.02.2013 P.64 (a) : signature of witness Ex.P.65 : Cheque bearing No.580104 dtd.09.02.2013 P.65 (a): signature of witness Ex.P.66 : Cheque bearing No.580108 dtd.19.02.2013 P.66(a) : Signature of PW.2 (Katrivel) Ex.P.67 : Cheque bearing No.580103 dtd.22.02.2013 P.67 (a): Signature of CW.3 (Lingaraju) Ex.P.68 : transfer debit slip dtd. 22.02.2013 201 Spl.C.C.No.340 of 2015 P.68 (a): Initial on Ex.P.68 by PW.4 Ex.P.69 : transfer credit slip dtd. 22.02.2013 P.69 (a): Signature of PW.4 on Ex.P.69 Ex.P.70 : Cheque bearing No.5801115 dtd.23.02.2013 Ex.P.71: Cheque bearing No.580110 dtd.22.02.2013 Ex.P.72 : Credit slip dated 22.02.2013 Ex.P.73 : Transfer debit slip dtd. 22.03.2013 P.73 (a): Signature of PW.4 Ex.P.74 : transfer credit slip dtd.23.02.2013 P.74 (a): Signature of PW.4 Ex.P.75 : transfer debit slip dtd. 23.02.2013 P.75 (a): Signature of PW.4 Ex.P.76 : credit transfer voucher dtd. 23.02.2013 P.76 (a): Signature of PW.4 Ex.P.77 : original debit voucher dtd. 23.02.2013 P.77 (a): Signature of PW.4 Ex.P.78 :Transfer Credit voucher dtd. 23.02.2013 P.78 (a): Signature of PW.4 Ex.P.79 :Cheque bearing No.580116 dtd.23.02.2013 P.79 (a): Signature of CW.3 (Lingaraju) Ex.P.80 :Cheque bearing No.580109 dtd.23.02.2013 Ex.P.81 :credit slip dtd. 11.02.2013 Ex.P.82 :another credit voucher dtd. 16.02.2013 P.82 (a) : Signature on Ex.P.82 of PW.2 202 Spl.C.C.No.340 of 2015 Ex.P.83 : Another credit voucher dtd. 18.02.2013 P.83 (a) : Signature of PW.2 on Ex.P.83 Ex.P.84 : another credit voucher dtd. 22.02.2013 Ex.P.85 : cc of current account opening form of Indian Bank (14 sheets) Ex.P.86 : Office letter dtd. 22.12.2011 P.86 (a): Signature of PW.3 Ex.P.87 : Office correspondence P.87 (a): Signature of PW.3 Ex.P.88 : Office correspondence Ex.P.89 : Office correspondence dtd. 14.01.2012 P.89(a): Signature of PW.3 Ex.P.90 : Specimen handwritings of PW.3 (30 sheets) Ex.P.91 : Specimen handwritings of PW.3 (6 sheets) Ex.P.92 : Application dtd. 18.02.2013 Ex.P.93 : Letter dtd. 18.02.2013 P.93 (a) : Signature of witness on Ex.P.93 P.93 (b) : Signature of A.3 in English P.93 (c) : Signature of A.3 in Kannada Ex.P.94 : Pay-in-slip P.94 (a): signature of witness Ex.P.95 : Statement of account ( 4 sheets) Ex.P.96 : Pay-in-slip 203 Spl.C.C.No.340 of 2015 Ex.P.97 : Statement of account (4 sheets) Ex.P.98 : Statement of account (4 sheets) Ex.P.99 : Statement of account (4 sheets) Ex.P.100 :Statement of account (4 sheets) Ex.P.101 :Statement of loan account (5 sheets) Ex.P.102 :debit voucher dtd.10.04.2013 Ex.P.103 :credit voucher dtd. 10.04.2013 Ex.P.104 :list of deposit accounts opened ( 2 sheets) Ex.P.105 : debit voucher dtd.28.02.2013 Ex.P.106 : credit voucher dtd. 28.02.2013 Ex.P.107 : Statement of account pertaining to OD account (6 sheets) Ex.P.108 : Cheque bearing No.580126 dtd. 28.02.2013 P.108 (a): Signature of CW.2 (Kadirvelu) Ex.P.109 : Cheque bearing No.580133 dtd. 27.03.2013 Ex.P.110 : Cheque bearing No.580139 dtd. 10.04.2013 P.110 (a): Initial of PW.4 Ex.P.111 : Cheque bearing No.580126 dtd. 28.02.2013 P.111(a): Signature of Cw.3 (Lingaraju) Ex.P.112 : Statement of account pertaining to A/c No.6123256756 (4 sheets) Ex.P.113 : Original specimen format of deposit receipt 204 Spl.C.C.No.340 of 2015 for the period 2012-2013.
Ex.P.114 : Specimen of stamps/rubber seal of Indian Bank (6 sheets) P.114 (a) Signature of PW.4 Ex.P.115 : Account Opening form of S.Praveera ( 7 sheets) Ex.P.116 : Statement of account of SB account of Praveera (34 sheets) Ex.P.117 : Withdrawal slip dtd. 11.02.2013 for Rs.25,000/-
Ex.P.118 : Withdrawal slip for Rs.50,000/-
dtd. 12.02.2013.
Ex.P.119 : Withdrawal slip for Rs.50,000/-
dtd. 14.02.2013.
Ex.P.120 : Withdrawal slip for Rs.10,000/-
dtd. 15.02.2013.
Ex.P.121 : Withdrawal slip for Rs.15,000/-
dtd. 19.02.2013.
Ex.P.122 : Withdrawal slip for Rs.75,000/-
dtd. 22.02.2013.
Ex.P.123 : Withdrawal slip for Rs.10,000/-
dtd. 24.02.2013.
Ex.P.124 : Withdrawal slip for Rs.25,000/-
dtd. 02.03.2013.
Ex.P.125 : debit slip for ATM card (duplicate) for Rs. 150/-205
Spl.C.C.No.340 of 2015 Ex.P.126 : Pay-in-slip for clearing dtd. 16.07.2013 Rs.500/-.
Ex.P.127 : Covering letter dtd. 11.07.2014 P.127 (a): Signature of PW.5 Ex.P.128 : Another covering letter dtd.18.07.2014 P.128 (a): Signature of PW.5 Ex.P.129 : Account opening form along with KYC (14 sheets) Ex.P.130 : Statement of account from 26.04.12 to 31.08.2012 (1 sheet) Ex.P.131 : Statement of account from 01.09.12 to 31.12.2012 (2 sheets) Ex.P.132 : Statement of account from 01.01.13 to 31.03.2013 (2 sheets) P.132 (a) : RTGS transfer P.132 (b) : Transaction of Rs.30 lakhs P.132 (c) : transaction from 13.02.2013 to 14.02.2013 Ex.P.133 : Statement of account from 01.04.13 to 30.06.2013 (2 sheets) P.133(a) : Transaction for Rs.36 lakhs P.133(b) : transaction for Rs.20 lakhs Ex.P.134 : Statement of account from 01.07.13 to 30.09.2013 (1 sheet) Ex.P.135 : Statement of account from 01.10.13 to 31.12.2013 (1 sheet) Ex.P.136 : Statement of account from 01.01.14 to 31.03.2014 (1 sheet).
Ex.P.137 : Statement of account from 01.04.14 to 206 Spl.C.C.No.340 of 2015 25.06.2014 (1 sheet) Ex.P.138 : Original Saving Account opening form along with KYC (8 sheets) Ex.P.139 : Statement of account from 15.03.2012 to 25.06.2014 (13 sheets) Ex.P.140 : Credit Voucher of Rs. 17 lakhs Ex.P.141 : withdrawal of Rs. 1 lakh cheque Ex.P.142 : Another self cheque dtd. 13.02.2013 Ex.P.143 : Another cheque dtd. 14.02.2013 Ex.P.144 : covering letter dtd. 16.07.2014 P.144(a) : Signature of Chandrashekar Malgund Ex.P.145 : Another covering letter dtd. 26.08.2014 P.145 (a): Signature of Chandrashekar Malgund Ex.P.146 : Covering letter dtd. 19.12.2007 Ex.P.147 : Statement of account of AR Logistics, (26 sheets) P.147 (a): transaction dtd. 18.02.2013 P.147 (b): transaction dtd. 19.02.2013 P.147 (c): transaction dtd. 23.02.2013 P.147 (d): transaction dtd. 13.04.2013 P.147 (e): transaction dtd. 27.04.2013 P.147 (f): cash credit voucher dtd. 19.02.2013 P.147 (g): another cash credit voucher dtd.22.03.2013 P.147 (h): cheque bearing dtd. 29.04.2013 Ex.P.148 : Saving account opening form (3 sheets) Ex.P.149 : Statement of account along with certificates 207 Spl.C.C.No.340 of 2015 (19 sheets) P.149 (a) : RTGS transfer dtd. 18.02.2013 P.149 (b) : clearing of cheque No.580113 for Rs. 12 lakhs P.149 (c) : RTGS transfer dtd. 19.02.2013 P.149 (d) : RTGS transfer dtd. 13.04.2014 Ex.P.150 : credit voucher dtd.18.02.2013 of Rs. 12 lakhs Ex.P.151 : another credit voucher dtd.19.02.2013 for Rs.
1 lakh Ex.P.152 : RTGS Form dtd. 23.02.2013 for transfer of Rs. 4 lakhs Ex.P.153 : Cheque No.6 dtd. 19.02.2013 of Rs. 5 lakhs Ex.P.154 : debit slip dtd. 13.04.2013 for transfer of Rs.1,50,000/-
P.154 (a): signature of K.Anand on back side of Ex.P.154 Ex.P.155 : deposit slip credit voucher dtd. 13.04.2013 Ex.P.156 : RTGS application form dtd. 19.02.2013 Ex.P.157 : Another RTGS application form dtd. 19.02.2013 Ex.P.158 : application for DD dtd. 19.02.2013 Ex.P.159 : another application for DD dtd. 19.02.2013 Ex.P.160 : another application for DD of Rs.2500/- Ex.P.161 : Another application for DD of Rs.9 lakhs Ex.P.162 : application for DD in favour of Manjula Devi Ex.P.163 : application for DD in favour of Manjula Devi for Rs.6 lakhs dtd. 19.02.2013 208 Spl.C.C.No.340 of 2015 Ex.P.164 : Application for DD in favour of H. Ashok for Rs.
6 lakhs dtd. 19.02.2013.
Ex.P.165 : cheque No.18 dtd. 23.02.2013 for Rs.30 lakhs Ex.P.166 : Cheque No.20 dtd. 25.02.2013 for Rs. 5 lakhs Ex.P.167 : Another cheque No.24 dtd. 23.02.2013 for Rs.5 lakhs P.167 (a): Signature of A.2 P.167 (b): Signature of PW.28 Ex.P.168 : Cheque No.25 dtd. 26.02.2013 for Rs.4,25,000/-
Ex.P.169 : Cheque No.18 dtd.26.02.2013 for Rs.8,000/- P.165 (a) to 169 (a): Signature of A.2 in back side of cheques Ex.P.165 to Ex.P.169.
Ex.P.170 : Statement of account along with certificate under Sec.65B of Evidence Act.
Ex.P.171 : Application cum specimen signature card of SB account Ex.P.172 : Covering letter along with specimen signature (2 pages) Ex.P.173 : Cheque bearing No.393280 dtd. 13.02.2013 for Rs.2 lakhs.
P.173(a): Signature on the back side of cheque Ex.P.173. Ex.P.174 : PF No.133/2013 Ex.P.175 : another PF in No.134/2013 209 Spl.C.C.No.340 of 2015 Ex.P.176: PF No.136/2013 Ex.P.177 : PF No.137/2013 Ex.P.178 : PF No.139/2013 Ex.P.179 : Obtained specimen signature along with handwriting and for the purpose of Investigation (66 sheets) Ex.P.180: PF No.140/2013 Ex.P.181 : disputed specimen signature along with handwriting H.K. Nagaraja (36 sheets) Ex.P.182 : PF No.141/2013 Ex.P.183 : covering letter along with enclosures dtd.
10.04.2014 P.183 (a): Signature of PW.19 Ex.P.184 : Specimen signature of A.2 (33 sheets) Ex.P.185 : another set of documents pertaining to A.3 (30 sheets) Ex.P.186 : Specimen signature of PW.1 (30 sheets) Ex.P.187 : FIR P.187 (a): Signature of PSI Ex.P.188 : Covering letter dtd. 26.03.2014 along with list of documents (15 sheets) P.188 (a) : Signature of PW.20 Ex.P.189 : Covering letter dtd. 26.05.2014 P.189 (a): Signature of PW.20 Ex.P.190 : covering letter dtd.20.06.2014 210 Spl.C.C.No.340 of 2015 Ex.P.191 : Account opening form along with KYC (6 sheets) Ex.P.192 : Statement of account of T.K. Nagaraj Ex.P.193 : Certificate of Bankers Book u/s.2A Ex.P.194 : Certificate u/s. 65 (B) of Evidence Act Ex.P.195 : Withdrawal form of T.K. Nagaraj Ex.P.196 : Self cheque bearing No.343278 drawn dtd. 11.02.2013 Ex.P.197 : cheque bearing No.343277 dtd. 12.02.2013 Ex.P.198 : cheque bearing No.343279 dtd. 12.02.2013 Ex.P.199 : cheque bearing No.511381 dtd. 18.02.2013 Ex.P.200 : cheque bearing No.511382 dtd. 02.03.2013 Ex.P.201 : cheque bearing No.511383 dtd. 30.03.2013 Ex.P.202 : Covering letter dtd. 08.07.2014 Ex.P.203 : Account opening form along with KYC (75 sheets) Ex.P.204 : Statement of accounts pertaining to Shree Shakti Souharda Credit Co-operative Bank along with certificate u/s.65B of Indian Evidence Act and Sec.2A of Banker's Book of Evidence Act.
Ex.P.205 : Self cheque No.734994 dtd. 12.02.2013 211 Spl.C.C.No.340 of 2015 Ex.P.206 : RTGS Application dtd. 19.02.2013 Ex.P.207 : Transfer voucher dtd. 19.02.2013 Ex.P.208 : RTGS application dtd. 25.02.2013 Ex.P.209 : Transfer voucher dtd. 25.02.2013 Ex.P.210 : Covering letter P.210 (a): Signature of PW.25 Ex.P.211 : Original Service personal file of H.K. Nagaraj Ex.P.212 : Original Service Record of H.K. Nagaraj Ex.P.213 : Circular issued by Urban Development Authority Ex.P.214 : Sanction Order dtd. 04.07.2015 P.214(a) : Signature of PW.25 Ex.P.215 : Covering letter dtd. 26.08.2014 Ex.P.216 : Report dtd. 21.09.2013 P.216 (a): Signatures and writings P.216 (b): samples seal Ex.P.217 : Specimen Signatures and writings (27 sheets) Ex.P.218 : Opinion along with reasons dtd. 21.09.2013 P.218 (a) : signature of PW.31 P.218 (b) : Signature of PW.31 in last sheet P.218 (c) : copy of questioned signatures and writings in 11 sheets P.218 (d) : Samples seal Ex.P.219 : Opinion dtd. 15.04.2014 P.219 (a) 212 Spl.C.C.No.340 of 2015 & P.219(b) : Signatures of specimens P.219 (c) : enlarged questioned signatures (7 sheets) Ex.P.220 : FIR P.220 (a) ; Signature of PW.37 Ex.P.221 : Proceedings to CBI authorities to hand over the Investigation dtd. 14.11.2013 Ex.P.222 : FIR in Cr. No. 273/2013 Ex.P.223 : Covering letter Ex.P.224 : Account opening form with KYC documents Ex.P.225 : Statement of accounts from 12.10.2011 to 28.06.2014 Ex.P.226 : Cheques in 7 numbers Ex.P.227 : Statement of account from 22.02.2013 to 24.01.2014 for Rs. 50 lakhs along with certificate u/s.2(A)of Banker's Book Evidence Act.
Ex.P.228 : Statement of account from 22.02.2013 to 24.01.2014 for Rs. 12 lakhs along with certificate u/s.2(A)of Banker's Book Evidence Act.
Ex.P.229 : Statement of account from 22.02.2013 to 24.01.2014 for Rs. 12 lakhs along with certificate u/s.2(A)of Banker's Book Evidence Act.
Ex.P.230 : Statement of account from 22.02.2013 to 24.01.2014 for Rs. 12 lakhs along with 213 Spl.C.C.No.340 of 2015 certificate u/s.2(A)of Banker's Book Evidence Act.
Ex.P.231 : Statement of account from 22.02.2013 to 24.01.2014 for Rs. 12 lakhs along with certificate u/s.2(A)of Banker's Book Evidence Act.
Ex.P.232 : Statement of account from 20.03.2013 to 24.01.2014 for Rs. 12 lakhs along with certificate u/s.2(A)of Banker's Book Evidence Act.
Ex.P.233 : Statement of account from 20.08.2013 to 10.04.2013 along with certificate u/s.2(A)of Banker's Book Evidence Act.
Ex.P.234 : Copy of Agreement Ex.P.235 : Registration certificate List of witnesses examined for the Accused :
- Nil -
List of documents exhibited on behalf of the Accused :
- Nil -
(Santhosh Gajanan Bhat) XLVI Addl. City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru City.
214 Spl.C.C.No.340 of 2015 215 Spl.C.C.No.340 of 2015 ORDER Acting U/s. 235(2) of Cr.P.C., the Accused No. 1 K.Ananda @ Kebballi Ananda, Accused No.2 H.S. Nagalingaswamy, Accused No.3 Chandrashekar, Accused No.4 H.K. Nagaraja and Accused No.5 K.B.Harshan are hereby convicted for the offences punishable under Sec 120-b, 420, 409, 467, 468, 471 of IPC and Sec.13(2) r/w 13 (1)(c) and (d) of the Prevention of Corruption Act, 1988.
Consequently the Crl.Mis. No. 377/19 is hereby allowed and the immovable properties mentioned in Schedule I to Schedule III of the Petition stands confiscated to the State.
Bail bonds and surety bonds stand cancelled.
216 Spl.C.C.No.340 of 2015 Copy of the original judgment Spl.CC No.340/2015 is kept in this file.
XLVI Addl. City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru City.