Madras High Court
R. Thiagarajan vs / on 4 March, 2020
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A.Nos.167, 182 & 183 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 05.09.2024 Pronounced on: 25.09.2024
Coram:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Criminal Appeal Nos.167, 182 & 183 of 2020
Crl.A.No.167 of 2020
R. Thiagarajan, M/A 64,
S/o. S. Ramasamy, the then DGM (Senior Regional Manager),
Central Bank of India, Regional Office, Chennai,
R/o.No.C2/1, Vijayaraghava Manor,
Vijayaraghava Road,
T.Nagar, Chennai - 600017. ... Appellant/Accused-A1
/versus/
State, rep.by :
The Inspector of Police,
SPE, CBI, ACB,
Chennai. ... Respondent/Complainant
Prayer: Criminal Appeal has been filed under Section 374 (2) of Cr.P.C., 1973
to call for the records in respect of the C.C.No.11 of 2019 on the file of the
Hon'ble Special Court No.1 for the trial of Criminal cases involving elected
Members for Parliament And Members of Legislative Assembly of Tamil Nadu,
Chennai vide judgment dated 04.03.2020 and set aside the conviction and
sentence.
For Appellant : Mr.Kandhan Duraisamy, Senior Counsel,
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Crl.A.Nos.167, 182 & 183 of 2020
for Mr.V.R.Appaswamee
For Respondent : Mr.N.Baaskaran,
Special Public Prosecutor (CBI).
Crl.A.No.182 of 2020
1. M/s.Kannammal Educational Trust,
Rep. by its Managing Trustee,
Mr.K.N.Ramachandran (M/64),
S/o. K.Narayanasamy,
Having place of residence at: No.30, Ramaswamy Road,
K.K.Nagar, Chennai - 600 078.
Presently lodged at Central Prison at Puzhal
2. Mr.K.N.Ramachandran (M/64),
S/o. K.Narayanasamy,
having place of residence at: No.30,
Ramaswamy Road, K.K.Nagar, Chennai - 600 078.
Presently lodged at Central Prison at Puzhal
....Appellants/Accused 2 & 4
/versus/
State, Rep. by Inspector of Police,
CBl/ACB/Chennai,
Sastri Bhavan, Nungambakkam,
Chennai. .... Respondent/Complainant
Prayer: Criminal Appeal has been filed under Section 374 (2) of Cr.P.C., 1973
r/w Section 27 of the Prevention of Corruption Act, 1988, to set aside the
conviction and sentence passed against the Appellants in the judgment dated 4th
day of March 2020 passed by the Special Court No.l for Trial of Cases Related
to Elected Members of Parliament and Members of Legislative Assembly of
Tamil Nadu, Chennai in C.C.No.11 of 2019 and allow this Criminal Appeal.
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Crl.A.Nos.167, 182 & 183 of 2020
For Appellants : Mr.R.Basanth, Senior Counsel,
& Mr.C.Paramasivam, for
Mr.Balaji Sankara Moorthy
For Respondent : Mr.N.Baaskaran,
Special Public Prosecutor (CBI).
Crl.A.No.183 of 2020
Mr.R.Rajasekaran (M/34),
S/o. Mr.K.N.Ramachandran,
Chairman of Sakthi Mariamman Engineering College,
having place of residence at:
Narayanasamy Nagar, No.55, Thandalam,
Kancheepuram - 602 105.
Presently lodged at Central Prison at Puzhal
....Appellant/Accused 3
/versus/
State, Rep. by Inspector of Police,
CBl/ACB/Chennai,
Sastri Bhavan, Nungambakkam,
Chennai. .... Respondent/Complainant
Prayer: Criminal Appeal has been filed under Section 374 (2) of Cr.P.C., 1973
r/w Section 27 of the Prevention of Corruption Act, 1988, to set aside the
conviction and sentence passed against the Appellants in the judgment dated 4th
day of March 2020 passed by the Special Court No.l for Trial of Cases Related
to Elected Members of Parliament and Members of Legislative Assembly of
Tamil Nadu, Chennai in C.C.No.11 of 2019 and allow this Criminal Appeal.
For Appellant : Mr.V.Karthick, Senior Counsel,
for Mr.Balaji Sankara Moorthy
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Crl.A.Nos.167, 182 & 183 of 2020
For Respondent : Mr.N.Baaskaran,
Special Public Prosecutor (CBI).
***
COMMON JUDGMENT
These Criminal Appeals are directed against the judgment of conviction and sentence passed by the Special Court for Trial of cases related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai in C.C.No.11 of 2019.
(i) Mr.Thiyagarajan, the appellant in C.A.No.167/2020 is the first accused in C.C.No.11/2019.
(ii) Mr.R.Rajasekaran, the appellant in C.A.No.183/2020 is the third accused in C.C.No.11/2019.
(iii) M/s.Kannammal Education Trust and its Managing Trustee K.N.Ramachandran, the appellant in C.A.No.182/2020 are the second and fourth accused in C.C.No.11/2019.
2. The trial Court imposed the following sentence:-
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https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Accused Sections Conviction and Sentence imposed by the trail Court 11 of P.C Act. Sentenced to undergo four years R.I and to pay a fine of Rs.3,00,000/-, in default to undergo 6 months S.I. A1 13(2) of P.C Act Sentenced to undergo 5 years R.I and to pay a R.Thiyagaraja fine of Rs.10,00,000/-, in default to undergo 6 n months S.I. 120B of I.P.C r/w 11 Sentenced to undergo 2 years R.I and to pay a and 13(2) of P.C Act fine of Rs.10,000/-, in default to undergo 6 months S.I. A2: 120B of I.P.C r/w To pay a fine of Rs.10,00,000/-
Kannammal Section 11 & 13(2) Education P.C Act.
Trust. Rep. by 12 r/w Section 11 of To pay a fine of Rs.10,00,000/-
its Managing P.C Act
Trustee, 109 of I.P.C r/w To pay a fine of Rs.15,00,00,000/-
K.N.Ramacha Section 13(2) of P.C
ndran Act.
A3 120B of I.P.C r/w Sentenced to undergo four years R.I and to pay
R.Rajasekara Section 11 & 13(2) a fine of Rs.1,00,00,000/-, in default to undergo
n P.C Act. 6 months S.I.
12 r/w Section 11 of Sentenced to undergo seven years R.I and to P.C Act pay a fine of Rs.10,00,000/-, in default to undergo 6 months S.I. 109 of I.P.C r/w Sentenced to undergo seven years R.I and to Section 13(2) of P.C pay a fine of Rs.1,00,000/-, in default to Act. undergo 6 months S.I. Accused Sections Conviction and Sentence imposed by the trail Court A4 120 B of I.P.C r/w Sentenced to undergo four years R.I and to pay K.N.Ramach Section 11 & 13(2) a fine of Rs.1,00,00,000/-, in default to undergo andran of P.C Act. 6 months S.I. Page No.5/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Accused Sections Conviction and Sentence imposed by the trail Court 12 r/w Section 11 of Sentenced to undergo seven years R.I and to P.C Act pay a fine of Rs.10,00,000/-, in default to undergo 6 months S.I. 109 of I.P.C r/w Sentenced to undergo seven years R.I and to Section 13(2) of P.C pay a fine of Rs.1,00,000/-, in default to Act undergo 6 months S.I. The case of the prosecution unfurled through the witnesses and documents is as under:-
3. M/s.Kannammal Education Trust was formed on 15/08/1997. The 4th accused is the Chairman-cum-Managing Trustee. The said Trust runs an Engineering College by name “Sri Sakthi Mariyamman Engineering College”. The 3rd accused is the Chairman of the College run by the Trust. The Banker of the second accused Trust is Central Bank of India, Anna Nagar Branch, Chennai. Central Bank of India in the year 2008, sanctioned three term loans to the second accused Trust. Out of which one was adjusted. In the year 2012 the bank sanctioned an overdraft limit of Rs.5 crores to the trust and a new term loan for Rs.2.75 crores. While the first accused was the Senior Regional Manager/DGM, Central Bank of India between 09/07/2012 to 17/09/2013, a Page No.6/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 new term loan for a sum of Rs.7 crores to the Trust was sanctioned on 29/01/2013 irregularly by the Regional Level Credit Committee (RLCC) in which the first accused was the Chairman. Despite the fact, the delegated power of sanction for RLCC was only upto Rs.15 crores and on the date of sanctioning the additional loan of Rs.7 crores, the exposure based on the outstanding amounts in the term loans was about 12 crores. Therefore, the total exposure after the newly sanctioned loan, exceeded Rs.15 crores.
4. A day before sanctioning of loan, to facilitate the sanction of loan, the Over Draft limits which was overdrawn was regularised i.e., on 28/01/2013. To regularise the over drawn OD, i) Personal Loans in the name of the teachers working in the college run by M/s.Kannammal Education Trust was granted and the proceeds were transferred to the OD account of M/s.Kannammal Education Trust. ii) Cash deposits and RTGS transfer of fund from the account of one Mr.Nagireddy was made.
5. Soon after the sanction of loan Rs.2.40 crores was disbursed on the same day and transferred to credit of one Indradev Associates. Subsequently, Rs.1.10 crores was transferred to the account of Mr.Nagireddy on Page No.7/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 the same day.
6. Based on the information received from the Head Office regarding the irregularities and from the internal verification, Mr.Girish Karia (Senior Regional Manager) found that there was irregularity in sanctioning the loan of Rs.7 crores and to facilitate this A-1 had obtained favour from A-2 Trust and its Managing Trustee (A-4). A sum of Rs.1,29,360/-was paid from the account of M/s.Kannammal Education Trust to one Travel Agent for purchase of Air Ticket to the son of A-1 for his travel to US. A sum of Rs.1,40,910.02 was paid by Thiru.Ramachandran (A-4) through his credit card for booking hotel at London for the stay of A-1 and his family.
7. In short, A-1 to A-4 conspired to do an illegal act and in pursuance to the conspiracy, A1 misconducted himself in sanctioning of various credit facilities including the term loan of Rs.7 crore to the A-2 Trust by abusing the official position as Senior Regional Manager of Central Bank of India by exceeding the delegated power, he obtained valuable thing without consideration from A-2 to A-4 who are persons concerning business transaction. Page No.8/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020
8. To prove the charges against A-1 for conspiracy, abuse of official position and for obtaining valuable consideration and as against A2 to A4 charges for assisting and abetting A-1 to commit the above offences, the prosecution had examined 25 witnesses (P.W.1 to P.W.25) and marked 105 Exhibits (Ex.P.1 to Ex.P.105). To disprove the charges, on the side of the defence, two witnesses (D.W.1 and D.W.2) (D.W.2 one among them is A-1) examined and 26 Exhibits (Ex.D.1 to Ex.D.26) were marked.
The Trial Court conclusion:-
9. The Trial Court held that, the Trust run by the 4th accused at the time of requesting additional term loan of Rs.7 crores, had a total exposure of Rs.13.95 crores from the three term loans of Rs.4 crores, Rs.2.20 crores and Rs.2.75 crores and in addition an over draft facility of Rs.5 crores. A-1 as Senior Regional Manager, in his individual capacity can sanction loan upto Rs.5 crores and with the Regional Office Level Credit Committee (RLCC) approval, loan only upto Rs.15 crores can be sanctioned. For loan above Rs.15 crores, sanction from the Zonal Level Credit Committee is necessary. When the additional loan of Rs.7 crores sought by the A-2 trust through A-4, outstanding and over due in their four loan accounts were irregular for more that 6 months Page No.9/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 and same was informed by the Branch Manager. However the fresh loan proposal, was taken up for discussion by RLCC on 23/01/2013 and the same was deferred without assigning reasons. Thereafter, the loan account of A-2 was regularised and brought down to Rs.4.99 crores in respect of Over draft loan as on 28/01/2013 by transfer of fund from other accounts and cash deposit. This was done on the instruction of A-1 in order to favour A-2 Trust. After so reducing the exposure in the Over Draft Loan, the RLCC met again on 29/01/2013 and sanctioned additional loan for Rs.7 crores and immediately released Rs.2.40 crores and was utilised for the purpose of adjusting the accommodation transfer of fund from Mr.Nagi Reddy (P.W.18). Without any justification the entire balance loan was released by 12/02/2013. However, even on that date i.e., 28/01/2013, the outstanding in respect of other three term loans and the Over draft loan was Rs.10.28 crore. Therefore, A-1 ought not to have approved the sanction of Rs.7 crores as additional loan since on that date, he neither in his individual capacity nor as the Chairman of Regional Level Credit Committee had the limit to sanction loan above Rs.15 crores.
10. The loan so sanctioned irregularly by A-1 beyond his limit was mis-utilised by the borrower A-2 to A-4 which remain unpaid till the Page No.10/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 prosecution. The meeting of mind between A1 to A4 to sanction additional term loan beyond his limit for extraneous consideration proved through documents like purchase of Air Travel Ticket by A3 for A1's son for his travel to US and booking of accommodation for A1 family at Marlin Apartments at London from the credit card of A4 by A3.
11. The act of violating the bank Loan Policy is an act of criminal misconduct of a public servant punishable under section 13(1)(d) of P.C Act. For sanctioning the additional term loan in violation of banking policy, A-1 obtained valuable things such as Air Ticket to US for his son and accommodation at Marlin Apartments, London for A-1 and his family without consideration from A-2 and A-4 arranged through A-3.
12. The loan policy for the year 2012-2013 (Ex.P.6) came into effect from 01/01/2013, restricting the power of the Regional Level Credit Committee to sanction loan only upto Rs.15 crores. Two incidents are attributed as the reason for violating the banking norms and sanctioning of term loan of Rs.7 crores on 29/01/2013 in excess of the Loan Policy Ex.P-6 which came into effect on 01/01/2013.
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13. Firstly, the valuable consideration obtained by the A-1 on 05/11/2012, by way of Air Ticket to his son Anirudh Thiyagarajan for his travel to New York costing Rs.1,29,360/-. The ticket was booked by PW-13 the Travel Agent on the request of A-2. This money was paid by a cheque Ex.P-78, drawn from the account maintained by A-2 Trust. The cheque was encashed by PW-13 on 10/12/2012.
14. The defence that before sanctioning the new loan of Rs.7 crores, A-1 has paid the Air Ticket amount to PW-13 by cheque Ex.P-12 for Rs.1,27,047/- been disbelieved by the Trial Court stating the repayment made belatedly without service charge of Rs.2,313/- proves that the subsequent repayment by A-1 is a bogus transaction. The repayment after 84 days would not absolve the offence of obtaining valuable consideration obtained from the person with whom there is a business transaction. The inadequacy in repayment i.e., shortage of Rs.2,313/- (service charge levied by P.W-13 and paid by A-2), is sufficient to attract offence under Section 11 of P.C Act.
15. Secondly, booking of room at Merlin Apartments, London by Page No.12/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 A-3 through e-mail, using the credit card of A-4 for the period 27/05/2013 to 02/06/2013. The first accused and his family, using the payment made by A-4 stayed in Merlin Apartments, London. The Trial Court accepted the e-mail correspondences between A-3 and Merlin Apartments, relied by the prosecution to prove that A-1 along with his wife and daughter stayed at Queen Street property of Marlin Apartments, London booked by A-4 at the costs of Rs.1,40,910.02.
16. The defence that A-1 stayed at Marlin Apartments on at his own cost making payment across the counter and the e-mail of Marlin Apartments dated 28/05/2013 informing A-3 that none had occupied the booking as on 27/05/2013 were disbelieved by the trial Court. The correspondence through e-mail between A-3 and Marlin Apartments, seeking refund of the money for not occupying and the refusal of Marlin Apartments to refund citing the rule that cancellation and refund must be sought 72 hours prior to the check-in-time, were termed by the trial Court as an afterthought in order to absolve from the charges.
Page No.13/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 The sum and substance of the grounds of appeal:-
17. The appeals by the convicted accused centres on the ground that the trial Court judgement is perverse for multiple reasons. There is no evidence either to prove conspiracy to attract Section 120-B of I.P.C or for the act of obtaining valuable consideration to attract offences under Section 11, 12 and 13(1)(d) of P.C Act. Despite lack of evidence without proper application, the presumptions under Section 106 of Evidence Act and Section 20 of P.C Act drawn by the trial Court, dehors of the fact that the first accused proved his innocence by gracing the witness box as D.W-2 and subjected himself for cross examination. Though the payment of air ticket for Anirudh Thiyagarajan is proved through Ex.P-12 and the testimony of the prosecution witness P.W-13, the trial Court had assigned a very strange reason and declined to believe the unimpeachable evidence, unmindful of the law that the degree of proof to rebut the reverse burden is only preponderance of probability, but not proof beyond reasonable doubt.
18. Likewise, the Trial Court had selectively relied on the e-mail communications between Marlin Apartments and A-3 as well as the response of Marlin Apartments to the Central Vigilance Officers of the Bank namely, Page No.14/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Pattabiraman (P.W-9) and C.V.Venkatesh (PW-10). The contradictions in the e-mail communications of Marlin Apartments about the stay of R.Thiyagarajan (A1) in their Marlin Apartments not been explained by the prosecution. Ex.P.65 and Ex.P.67, the letters alleged to have been received from Marlin Apartments by P.W-9 and P.W-10 are not part of the investigation done by C.B.I. These letters not been proved in the manner known to law. Without examining the author of the letter, (i.e.,) the Manager of Marlin Apartments, these inadmissible documents were admitted into evidence. From Ex.P-86 series, it could be seen that the e-mail of Marlin Apartments dated 28/05/2013 is the earliest document emanated from Marlin Apartments informing that the guest (Ramachandran) and his family members has not checked-in on 27/05/2013 as per the booking. Subsequently, for not occupying the room, refund was sought by A-4 during the month of October, 2013. The request of A-4 was declined by M/s.Marlin Apartments stating that refund cannot be given since cancellation not informed before 72 hours of check-in-time. The refusal letter of Marlin Apartments much prior to the complaint given by P.W-1 against A-1. Whereas, the Trial Court has relied upon a document Ex.P-67 which was purported to have been sent by Marlin Apartments to P.W-10 two years thereafter and Ex.P-68 (invoice as enclosure) to draw the presumption that A-1 family stayed at Marlin Apartments Page No.15/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 between 27/05/2013 to 02/06/2013 and the payment for their stay was made by K.N.Ramachandran. If it is so, there was no necessity for Marlin Apartments to sent e-mail to A-3 informing that the guest have not arrived on 27/05/2013 as per the booking. There is no necessity for A-3 to seek for refund and there is no necessity for Marlin Apartments to reply that refund not possible since cancellation not made 72 hours prior to the check-in-time. If the prosecution theory is true, when A-3 sought for refund, M/s.Marlin Apartments would have replied stating that R.Thiyagarajan and his family had occupied the rooms as guest of K.N.Ramachandran.
19. Further, the Learned Senior Counsel appearing for A-1 submitted that, the invoice of Marlin Apartments is creation of the prosecution, through PW-10. The Investigating Officer to avoid action for malicious prosecution for creating false document, had introduced this document (Ex.P.68) as if it was collected by the Vigilance Department of the Bank, independently while the investigation by C.B.I was underway. However, PW- 10 had categorically deposed that he wrote the letter and got the invoice only on the direction of the Investigating Officer, C.B.I. The invoice and the explanation given by the prosecution to link the invoice (Ex.P-68) to the stay of Page No.16/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 A-1 family in the said Apartments between 27/05/2013 to 02/06/2013 been demonstrated by A-1 through cross examination as a concocted, false and fabricated document and through his passport entires which establishes that A-1 left U.S and arrived London only on 28/05/2013 and left London on 02/06/2013 and landed at Chennai on the night of 02/06/2013. A-1 had deposed before the Court that he stayed in Marlin Apartments only for three days (28th, 29th and 30th of May 2013) and rest of the days he was staying as a guest of his friend Mr.Prabu Serumadar (L.W-33). Though prosecution has shown his friend Prabu Serumadar as a listed witness, for reason best known not examined him.
20. The prosecution has not taken any steps to verify with Marlin Apartments about the e-mails emanated from them. No Letter Rogatory through diplomatic channel sent as law expects when witnesses and documents of Foreign Origin involved. Inputs of inadmissible and irrelevant documents had formed basis for the conviction.
21. A-1 through defence exhibits as well as through cross examination of the prosecution witnesses had established that the loan of Rs.7 crores was issued based on the collective decision of RLCC after being satisfied Page No.17/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 with the immovable security of Rs.31.60 crores furnished by the borrower (A-
2). Mr.Sai Subramaniam (shown as listed witness 7, but not examined), Mr.D.G.Kallati (shown as listed witness 8, but not examined), Mrs.Thangam (P.W-20) and T.R.Ragavan (shown as listed witness 4, but not examined) are all part of the Regional Level Credit Committee (RLCC) term loan was granted based on committee unanimous decision and not an individual decision. The recommendation of RLCC was forwarded to V.K.Tewari (P.W-14) who approved the proposal. The loan sanctioned after thorough scrutiny by very Senior Officers of the bank after being satisfied by the creditworthiness of the borrower cannot be pitted against A-1 selectively more so, when the account was performing and no default till the date of complaint. That apart, two of the loans were discharged in the regular course during pendency of the case. Only thereafter, the account was declared as NPA and two other loan accounts were settled under OTS, before the judgment.
22. Regarding the alleged quid pro quo, A-1 contends that through Ex.P.12, he had proved that the price of air ticket was paid to the Travel Agency. The prosecution witness PW-13 admits the receipt of the money and had further clarified that the service charge waived by adjusting it in the running Page No.18/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 account of A-2 on whose reference the ticket was booked. Similarly, the payment of charges by A-1 to Marlin Apartments proved through his bank account and Foreign Exchange, he and his wfie purchased prior to his travel. Even if the Foreign Exchange purchased was not adequate to pay for Marlin Apartments, it will not automatically lead to the presumption that the money was paid by A-4, which prosecution failed to prove through evidence that the payment of A-4 and stay of A-1 are part of same transaction. Having discharged his burden to prove his innocence, the erroneous finding of the Trial Court ought to be set aside.
23. The second accused trust and the fourth accused, the Managing Trustee of the said trust, in their appeal, questioning the jurisdiction of the Special Court to try the case. However, realising the said ground is not sustainable, not pressed when the appeal taken up for final hearing. Yet other ground in the appeal that a Trust cannot be prosecuted also given up.
24. The Learned Senior Counsel appearing for A-2/Trust and A-4 its Managing Trustee emphasised on the point that secondary evidence were relied by the prosecution without proper reasoning why the primary evidence Page No.19/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 not produced. The finding of the Trial Court that A-4 booked Hotel at London for A-1 and his family between 27/05/2013 and 02/06/2013 and the hotel room was utilised by A-1 and his family not based on best evidence/primary evidence but based on surmises, conjectures and assumptions. The deliberate omission of the prosecution to examine Prabu Serumadar (LW-33) is fatal for the prosecution case. A-1 and his family members stayed at Marlin Apartments only for two nights. On landing at Heathrow Airport London on 28/05/2013 at 9.55 a.m, they checked in Marlin Apartments at about 12.00 noon as suggested by Prabu Serumadar. Paid the charges across the counter and checked out the hotel on 30th May, at about 11.00 am. Stayed at Prabu residence at Essex till 7.00 a.m on 02/06/2013 and left to Heathrow Airport. The prosecution relies on the invoice Ex.P-68, dated 08/05/2013, whereas the confirmation of booking by Ramachandran Ex.P-86 is on the next day i.e., 09/05/2013. The prosecution has failed to explain how an invoice could be raised even before booking and its confirmation. This vital contradiction not taken note by the trial Court.
25. Also, the communication with Marlin Apartments for refund and their refusal to refund is a strong evidence that for the stay of A-1 and his family, neither A-2 nor A-4 paid. A-1 was not the guest of A-4 as alleged by Page No.20/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 the prosecution. If A-1 and his family had stayed as guest of A-4 at Marlin Apartments, when refund was sought for not occupying Marlin Apartments on 07/10/2013 would have stated that A-4 not eligible for refund since A-1 and his family had stayed at Marlin Apartments against booking by A-4. The trial Court has come out with his own explanation for this which is not part of evidence. The contradictions between Ex.P-65, Ex.P-67 and Ex.P-68 viz-a-viz Ex.P-86 ought to have been explained by Marlin Apartments and not by PW-22 or by the Court on presumption and assumption.
26. The Trust maintains account with the Central Bank of India since 2008 and had provided adequate security for the loans availed. On the date of sanction of additional loan, the exposure was well within the sanction limit. Additional Term Loan for Rs.7 crores was made in the normal course of business since additional finance was required to complete the construction of the trust building. The application for additional loan was made during the Month of December 2012 and processed in the month of January 2013. The Air ticket to the son of A-1 was purchased long before the application for loan. The price for the ticket was though initially paid from the account of A-2, the said payment was only as security. The said money was repaid to the Travel Agent. Page No.21/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Immediately after A-1 paid the money, same was adjusted in the running account of A2. The testimony of P.W-13 who had deposed that after the cost of the air ticket paid by A-1, the money received from A-3 as security was returned. P.W-13 is the witness for prosecution and the best witness who could speak about the transaction. He is not treated as hostile by the prosecution. While so, the trial Court ought to have considered that the explanation of the accused as probable and acquitted all the accused.
27. The testimony of P.W-9 and P.W-10 regarding the communications received from Marlin Apartments, London is not admissible in Law. They are not competent to speak about the records maintained by Marlin Apartments. The electronic records produced by them to the Investigating Officer are not supported by their certificate under Section 65 B of the Evidence Act. The reasoning given by the trial Court excusing the non-production of certificate under Section 65B of the Indian Evidence Act by P.W-9 and P.W-10 is improper and contrary to the spirit of the law.
28. The 4th accused became a Member of Parliament only in the month of May 2014. The Trial Court has perversely held that the loan amount Page No.22/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 was diversified for election and the loan was sanctioned illegally by A-1 to facilitate his transfer by A4 through another Member of Parliament. This invented reason for quid pro quo is based on an unsigned, undelivered letter in the name of A1, alleged to have been recovered from A-4 house. On the face of the record, the absurdity in the prosecution case is exposed. The trial Court erred in holding that the P.W-19 had no history of constructing building, is in ignorance of the pre-sanction inspection report marked as Ex.D.3.
29. The Learned Senior Counsel for A-3 submitted that, A-3 is the Chairman of the Engineering College run by the A-2 Trust. Being a regular customer of M/s.Shantosi Tours and Travels, he requested to book ticket for Anirudh Thiyagarajan (son of A-1) for his travel to US and paid through cheque Ex.P-78 a sum of Rs.1,29.360/-, which includes the service charge. It was an help for a known person to facilitate the purchase of Air ticket immediately without hurdle. The ticket price was repaid by A-1 to the Travel Agent through his Cheque Ex.P-12 for Rs.1,27,047/- exclusive of service charge. Because the repayment was made subsequently, it is not a valuable thing given without consideration as alleged by the prosecution. Shortage of Rs.2,313/- is the difference arose due to waiver of service charge. The evidence of PW-13 been Page No.23/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 not properly appreciated by the trial Court. The refusal to believe the evidence of PW-13 who is the best witness to speak about the transaction regarding the booking of air ticket for the son of A-1 and the payment of consideration for the ticket had been ignored by the trial Court for reason unknown.
30. Neither P.W-9 nor P.W-10 are competent witnesses to speak about the dates on which A-1 and his family stayed at Marlin Apartments, London. They are not competent to speak about who paid for their stay. The legality of the Investigating Officer (P.W-22) to request P.W-10 (Chief Vigilance Officer of Central Bank of India) to collect information about the stay of A-1 and his family at Marlin Apartments is questionable. The information alleged to have collected by P.W-10 including the invoice (Ex.P.68) is not authenticated by P.W-10 with certificate under section 65 B of Evidence Act. P.W-22 is not competent to speak about those communication and certify about its authenticity under Section 65 B of the Evidence Act, P.W.22 did not record the statement of the witnesses who authored those communication on behalf of Marlin Apartments. Neither the communication was addressed to him.
31. Through D.W-1 and D.W-2 as well as Ex.P.89 series which Page No.24/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 were recovered from A-4 residence during search, it is clearly proved that the payment of 1611 GBP for booking accommodation at Marlin Apartments for A- 4 not utilized and refund sought was refused by Marlin Apartments quoting the refund rule against cancellation. The contra material introduced by the prosecution witnesses PW-9 and PW-10 through Ex P-65, Ex P-67 and Ex P-68 not proved in the manner known to law.
32. Heard the submissions of the Learned Senior Counsels representing the appellants 1 to 4. The oral and documentary evidence relied on either side perused. The judgment of the trial Court which is under challenge is subjected to through scrutiny.
33. M/s.Kannammal Education Trust had a Current Account with Central Branch of India since 28/01/2008 and that is proved through Ex.P-13. Ex.P-2 is the account opening form of M/s.Sakthi Marriamman Engineering Collection run by Kanniammal Education Trust. Ex.P-3 is the statement of account of M/s.Sakthi Marriamman Engineer College for the period 24/12/2013 to 21/09/2015. Ex.P-18 is the Statement of Account of M/s.Kannammal Education Trust account of Sakthi Mariamman Engineering College for the Page No.25/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 period from 12/02/2008 to 06/10/2015.
34. Before A-1 became the Regional Manager, credit facility through term loans for Rs.4 crores on 12/02/2008 and for Rs.2.20 crores on 25/10/2008 were sanctioned to the A-2 Trust. After A-1 joined as Senior Regional Manager at Chennai on 09/07/2012, the third term loan for Rs.2.75 crores sanctioned on 06/08/2012. Apart from the term loans mentioned above, the Trust had overdraft facility initially for Rs.2 crores and later enhanced to Rs.5 crores which was sanctioned on 22/10/2011. All these loans were sanctioned on obtaining security such as memorandum of deposit of title deeds of fixed assets. The prime charge against A-1 is in pursuant to conspiracy, the additional term loan of Rs.7 crores sanctioned on 29.07.2013 contrary to the banking credit policy Ex.P-6 which came into effect from 01/01/2013 restricting the loan sanctioning limit of the Regional Officer as Rs.15 crores.
35. The events and the financial transactions which has drawn the suspicion of the complainant P.W.1 is after A-1 joined as Regional Manager, Kannammal Educational Trust has availed the third term loan for Rs.2.75 crores on 27/07/2012 extending the same collateral security worth Rs.31.40 crores. Page No.26/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 From the account of M/s.Kannammal Educational Trust, a cheque for Rs.1,29,360/- issued in favour of M/s.Shanthosi Tours and Travels for purchase of Air Ticket in the name of Anirudh Thiyagarajan (son of A1) for his travel to USA. Ex.P-80 is the invoice dated 05/11/2012 for the sale of the Air Ticket raised in the name of A-3. It is admitted by the accused and also proved by the prosecution witnesses that this dealing was done through A-3. The e-mail correspondent Ex.P-84 between A-3 and M/s.Shanthosi Tours and Travels besides the testimony of PW-13 establishes the fact that the air ticket for the son of A-1 was paid from the account of A-2.
36. On 17/12/2012 when M/s.Kannammal Educational Trust sought for additional term loan of Rs.7 crores, the exposure of the borrower was Rs.13.95 crores. After certain book adjustment through cash transaction, it was reduced to Rs.10.28 crores including the OD cent mortgage. By sanctioning additional loan of Rs.7 crores on 29/01/2013, the exposure exceeded Rs.15 crores. While the RLCC consisting of 4 members unanimously approved the sanction of loan exceeding the limit prescribed by the bank policy Ex.P-6, can A-1 alone be isolated and prosecuted is the first point placed by the appellants for consideration of this Court.
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37. A-1 R.Thiyagarajan, who had mounted the witness box and got himself testified as D.W-2, justified the sanction of Rs.7 crores additional term loan to A-2 by stating that, the new loan policy Ex.P-6 not reached the Regional Office at the time of sanctioning the additional loan. The policy prior to Ex.P-6 w.e.f., 01/01/2013 permitted RLCC to sanction loan upto Rs.24 crores. The RLCC committee members under his Chairmanship were under the impression that the exposure under the over draft cent mortgage loan shall not be added while calculating the total exposure of the entity. The prosecution documents reveals that on the date of sanctioning additional term loan of Rs.7 crores, the exposure of Kannammal Education Trust in their OD facility was Rs.4.99 crores and that was after transfers from other accounts between 23/01/2013 and 29/01/2013.
38. Strong suspicion in this regard been placed by the prosecution by projecting that as a part of conspiracy, after the note of the Branch Manager that the accounts are irregular, RLCC in their meeting dated 23/01/2013 without taking any decision, postponed the meeting and enabled the borrower (A-2) to Page No.28/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 adjust their account and make it regular. Thereafter, under the cover that OD cent mortgage exposure will not include the total exposure, loan of Rs.7 crores sanctioned on 29/01/2013 and Rs.2.40 crores released to be deposited in a new account of P.W-19 Mr.A.D.Devanand, Proprietor of M/s.Indradev Associates which was opened on the same day. From that account immediately Rs.1.40 crores transferred to P.W-18 Thiru.Nagi Reddy.
39. P.W-3, Mr.Santhosh, the Chief Internal Auditor at Zonal Audit Office, Central Bank of India was asked to conduct scrutiny of loans disbursed by A-1 during the period from July 2012 to September, 2013. Ex.P-5 is the report submitted by him to the General Manager (Audit). Except irregularities in disbursing loan to A-2 trust no other incriminating incident against A-1 for irregular loan disbursement noticed by him. P.W-3, in the cross examination admit that as per the loan policy Annexure-3 and 3B and guidelines clauses 8.3.2.3.1, powers given to the committee for sanctioning 25% more than the delegated power. He had further deposed that that power was withdrawn on 22/01/2013. He had further explained that such sanction of loan more than the delegated power has to be rectified by the Zonal Level Credit Committee Page No.29/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 headed by the General Manager. He admits his ignorance about the fact who withdrew the powers of sanctioning 25% more than the delegated power and he is not aware of the circular withdrawing the said power. In the cross examination, this witness admits that after sanction of loan to A-2, same was intimated to Zonal Office and the Zonal Office did not disapprove the sanction of loan.
40. If, the policy permits excess upto 25%, than the prescribed limits then sanction of Rs.15 crores by RLCC falls well within the permissible limit since on 29/01/2013 the total exposure after sanction of Rs.15 crores was Rs.17.44 crores. That apart, the decision to sanction additional loan of Rs.15 crores was not an unilateral decision of A-1, but a collective decision of all the members of the RLCC including P.W-14 V.K.Tiwari, the Chief Manager in the Credit Department, Central Bank of India, who placed the proposal in the RLCC meeting for its clearance. P.W.14 had deposed that he placed the proposal before the RLCC inadvertently thinking that the power of the RLCC was upto Rs.24 crores in case of a registered trust. Yet another member of RLCC Mrs.Thangam (PW-20) had deposed that the proposal was piloted and presented by the Chief Manager of Credit Department (PW-14) and the Credit Page No.30/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Department officials informed that OD cent mortgage can be exempted for the exposure.
41. Therefore, the facts as spoken by prosecution witnesses mentioned above, it is clear that the application of A-2 for additional term loan of Rs.15 crores was under process from November 2012 and it was sanctioned by RLCC on 29/01/2013. Meanwhile, the loan policy been changed with effect from 01.01.2013 curtailing the sanction limit of RLCC to Rs.15 crores with discretion of exceeding by 25% in appropriate case and get ratification of Zonal Level Credit Committee. In the said circumstances, RLCC had sanctioned the loan and it was collective decision of the committee. Apart from A1, the other members who were party to the decision making process, had approved the sanction of additional loan of Rs.7 crores under the impression that exposure under Cent Mortgage loan not to included.
42. The loan sanctioned was utilized to pay M/s.Indradev Associates which as per the executive brief (Ex.P-35) had constructed 25000 sq.ft of building for A-2 as against the proposed construction of 76000 sq.ft and expected to complete the construction by April/May 2013. Ex.D-3 Pre- Page No.31/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Inspection Report not found to be false or exaggerated either by the Central Vigilance Committee of the Bank or by the CBI. In fact, the Panel Engineer's report dated 28/06/2013 marked as Ex.D-4 assessed the value of the construction made by M/s.Indradev Associates as on 11/06/2013 as Rs.13,11,50,118/-. The inspection was done in the presence of D.Kallati, Deputy Regional Manager, V.A.Srinivasan, Branch Manager and R.A.Raman, Finance in-charge.
43. In the said circumstances, the findings of the trial Court that the excess of loan was granted by A-1 violating the Banking Policy is contrary to the facts elicited during the cross examination of P.W-3, P.W-14 and P.W-23 in the light of Ex.P-6, Ex.P-35 and Ex.D-3. It is unfortunate that the trial Court instead of examining the evidence, dispassionately and impartially been carried away by the projection made in the departmental enquiry and its report which bristles with selective discrimination for persecuting A-1.
44. The prosecution able to establish through Ex.P.6, the additional loan of Rs.7 crores sanctioned irregularly. However, to attract offence under Section 11 of P.C Act, it has to be tested whether for the loan sanctioned, Page No.32/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 irregularly the quid pro quo offered by A-2 to A-4 and received by A-1 are the Air Ticket to US for the son of A-1 and the rent paid for accommodation of A-1 family at Marlin Apartments, London.
45. In so far the air ticket to USA, the prosecution case is that the cost of ticket was paid by A-3 from the account of A-2. Ex.P-78 is the cheque of A2 drawn in favour of M/s.Shantosi Tours and Travels for Rs.1,29,360/-. The case of the defence is that, the payment made by A-3 from A-2 account was only a stop arrangement. The ticket cost was actually paid by A-1. In this regard testimony of P.W-7 and P.W-13 are most relevant and significant.
46. V.Balamurali is the partner of M/s.Shantosi Tours and Travels. The prosecution has examined him as PW-13. This witness had deposed that in the month of October 2012, Rajasekaran (A-3) called him over phone and wanted a return Air Ticket from US to India. A-3 forwarded the passport copy of Mr.Anirudh through e-mail. When he asked for payment, A-3 informed him that the ticket is not for him, so he will give a cheque for booking ticket, once the party makes payment, he should return the money. The up and down return tickets for US including service charge was Rs.1,29,360/-. He blocked the Page No.33/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 ticket and informed A-3 on 02/11/2012 to confirm. On confirmation, ticket was booked on 05/11/2012 for the travel date 16/12/2012. He received the cheque Ex.P-78 dated 17/11/2012 from A-3. Same was presented for collection on 10/12/2012. The pay-in-challan is marked as Ex.P-79. Thereafter, A-3 called P.W-13 over phone and informed, A-1 will issue cheque for his son’s air ticket and to collect it from A-1. Accordingly, he went to the Central Bank of India, Egmore and collected Ex.P-12 the cheque for Rs.1,27,047/-. A-1 told him that the cheque was made ready long ago and waiting for him to collect it in person. Two days after on 28.01.2013 he presented the cheque for collection with pay- in-slip Ex.P-82.
47. The further evidence of P.W.13 discloses that on 8th April 2013, A1 enquired about tickets to Chennai-Delhi, Delhi-US and US-London-Chennai for him, his wife and daughter. Three separate invoices for the tickets were raised for Rs.3,54,642/- and the amount was paid by A-1 through cheque. Since, A-2 was not a regular customer, his account was kept with A-3 account. The visa charge of Rs.4000/- adjusted from the payment made by A-3 through Ex.P- 8 cheque for Rs.40,000/-. In the cross examination, P.W-13 had admitted that he did not demand service charge of Rs.2,313/- from A-1 when he went to his Page No.34/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 office and collected cheque Ex.P-12 for Rs.1,27,047/-. He did not raise any invoice for Rs.4000/- towards visa charge or demanded Rs.4000/- from A-1. The service charge and visa charge were adjusted in the running account of A3.
48. From the cross examination of PW-13, it is elucidated that being a regular customer, A-3 had a running account with him. A-3 need not pay the ticket price in advance. They used to collect it later. Visa processing is done by the Consulate concern. By mistake, the service charge and visa application filling charge were added to the running account of A-3. The Air Ticket charge was collected from A-3 as security and once A-1 paid the ticket charge, he returned the money collected from A-2 through A-3. In this regard he sent a communication to Central Bureau of Investigation.
49. PW-7, G.Balasubramaniam, the Steno Officer in Central Bank of India, Regional Office, Chennai had identified the cheque Ex.P-12 drawn on Central Bank of India by A-1 for Rs.1,27,047/-, dated 08/12/2012. The cheque kept in a cover was given to him by A-1 during last week of January, 2013 with instruction to hand over it to M/s.Shanthosi Tour and Travels. On the back of the Cheque (Ex.P.12) A-1 had written “Emirates Ticket for Anirudh Page No.35/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Thiyagarajan JFK-MAA-JFK”. P.W.7 had deposed that he handed over the cheque to the messenger of M/s.Shandosi Tours and Travels. The said cheque was presented and cleared on 28/01/2013.
50. According to the trial Court, the booking of ticket using the cheque of A-3 and repaying it after 78 days of the issuance, that too not the entire amount but less the service charge itself will attract offence under Section 11 of P.C Act, since it is obtainment of valuable thing from a person who have business dealing with him in his official capacity.
51. The trial Court had termed PW-13 as an interested witness. He having business with A-3, to help A-1 and A-3 had in order to make the record straight cheque Ex.P-12 with ante-date as 08/12/2012 and encashed a day before sanctioning of the additional term loan.
52. If what the trial Court inferred about P.W.13 is true, the prosecution ought to have treated P.W.13 as a hostile witness and impeached his evidence. Without discrediting the testimony of PW-13, the trial Court had substituted his opinion about the said transaction ignoring the oral and Page No.36/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 documentary evidence. The finding of the trial Court is absolutely contrary to the unimpeached evidence.
53. In respect of the alleged accommodation at Marlin Apartments, London, at the outset, it has to be recorded that, the Investigating Officer had not done any investigation with Marlin Apartments, London personally. All the documents Ex.P.64 to Ex.P.68 pertaining to Marlin Apartments are the materials collected by P.W-9 and P.W-10 during the departmental enquiry conducted by the Vigilance Cell of the Bank and the documents Ex.P.86 series seized from A-4 residence during the search conducted by the Investigating Officer.
54. The analysis of communications alleged to have been sent by Marlin Apartments, this Court finds two contradictory versions. One version is the booking of ticket by K.N.Ramachandran (A-4) using his credit card for accommodation between 27/05/2013 to 02/06/2013 but not occupied, so A-4 sought for refund. The other version is that, A-3 through mail booked accommodation at Marlin Apartments, London, for 27/05/2013 to 02/062013 and paid 1611 GBP using the credit card of A-4. As a guest of A-4, A-1, his Page No.37/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 wife and daughter stayed at Marlin Apartments, London on those days.
55. The letter of P.W-9 to the Manager of Marlin Apartments, London and the reply from reservation Manager of Marlin Apartments are Ex.P.64 and Ex.P-65. P.W-9 Mr.V.Pattabiraman, Chief Vigilance Officer of Central Bank of India had deposed that on receipt of a written complaint against A-1 in and around September 2013, the Vigilance Cell conducted verification. Specifically, there was an allegation that A-1 was accommodated at London by A-4. Hence, he wrote a letter to Marlin Apartments on 08/03/2014 (Ex.P-64) and got a reply dated 19/03/2014 (Ex.P-65) stating that there was no record of a person named Thiru.R.Thiyagarajan (A1) being their guest at any point over the last two years. It may be that Mr.R.Thiyagarajan was an occupant of any Apartments that is booked under another name.
56. On receipt of Ex.P-65, on 19/03/2014, P.W-9 wrote another letter dated 01/04/2014, (Ex.P-66) to Ms.Sorcha Norris, Reservation Manager, Marlin Apartments, London requesting whether K.N.Ramachandran (A-4) made reservation through their website and made payment of 1,400 pounds on 08/05/2013 using Central Bank Credit Card No:4622420100730001 and Page No.38/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 whether K.N.Ramachandran and his family stayed during May-June 2013. The reply of Ms.Sorcha Norris, dated 17/04/2014 received by PW-9 on 23/04/2014, wherein he was informed that Booking at Marlin Apartments made by K.N.Ramachandran for the period from 27/05/2013 to 02/06/2013, in their Queen Street property on behalf of K.N.Ramachandran. Reservation was made via website and payment made through credit card at the time of booking. They cannot disclose whether K.N.Ramachandran stayed with family members or the card details. However, the amount paid was 1,611 pounds. The reply letter is marked as Ex.P-67.
57. Ex.P-65, the letter of Marlin Apartments says, no guest by name Thiyagarajan (A-1) stayed in their Marlin Apartments for the last two years. Ex.P-67 says, Mr.K.N.Ramachandran paid Rs.1,611 pounds for booking at Marlin Apartments, Queen Street property. However, they cannot disclose whether K.N.Ramachandran stayed with his family members or not.
58. Even assuming these two documents Ex.P.65 and Ex.P.67 are admissible in evidence, these two documents are not a proof that, Thiyagarajan stayed in Marlin Apartments, Queens Street Property, London between Page No.39/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 27/05/2013 to 02/06/2013. Furthermore, the e-mail of Marlin Apartments (Ex.P-86 series) sent to A-4 on 28/05/2013 at 03.43 p.m indicates that A-4 has not checked in on 27/05/2013 as per the reservation and the subsequent gmail dated 07.10.2013 declining to refund for non occupying.
59. While so, P.W-10 Mr.C.V.Venkatesan, the new Chief Vigilance Officer who took charge on 11/04/2016 had deposed that he was asked by C.B.I to verify again with Marlin Apartments whether Mr.R.Thiyagarajan (A-1) stayed at Marlin Apartments, London during the period 27/05/2013 to 02/06/2013. As requested by C.B.I, he wrote a letter to Marlin Apartments, London on 21/06/2013 and got reply with an invoice dated 08/05/2013 enclosed stating Thiyagarajan was staying in Marlin Apartments from 27/05/2013 to 02/06/2013. He forwarded the information received from Marlin Apartments through email to T.Anandakarishnan, DSP, CBI/ACB/Chennai (P.W-22). The print out of the e-mail of Marlin Apartments along with the invoice marked as Ex.P-68.
60. The FIR in this case was registered on 31/01/2015. P.W-22 T.Ananda Krishnan, who was the second Investigating Officer in this case, took Page No.40/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 charge of the investigation on 12/08/2015. He conducted search of the A4 residence on 04/09/2015 and recovered Ex.P-86 series kept in a brief case. Copies of gmails pertaining to the booking made by K.N.Ramachandran at Marlin Apartments are part of the Ex.P-86 series. P.W.22 had deposed that on 22/04/2016 collected e-mail correspondence between Central Bank of India and Marlin Apartments, London from Harshabhandan Lenka of Central Bank of India through a receipt memo (Ex.P-97) dated 22/04/2016. Under this memo, he collected 4 documents which are marked as Ex.P-64 to Ex.P-67. He received mail forwarded by P.W.10 which contains the invoice of Marlin Apartments (Ex.P.68).
61. Two points which glaringly stares at the face of the prosecution regarding the said invoice. Firstly, it is dated 08.05.2013. Whereas, the booking itself was made by A-4 through online only on 09.05.2013. Secondly, this document is collected by P.W.10 two years after registering the F.I.R. P.W.10 had deposed, he wrote to Marline Apartments on the instruction of Investigating Officer and got invoice through mail. Whereas, P.W.22, the Investigating Officer had deposed that, he did not ask P.W.10 to write to Marlin Apartments and get details. The Letter of Investigating Officer referred by P.W.10 in his Page No.41/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 chief examination is not produced to the Court.
62. Ex.P.64 to Ex.P.68 which alleged to have been emanated from Marlin Apartments, London is scanned below for easy reference. Page No.42/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Page No.43/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Page No.44/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Page No.45/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Page No.46/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020
63. The g-mail copies recovered from A-4 residence and marked as Ex.P.86 regarding booking of room at Marline Apartments, request letter for refund and denial. They are produced below:-
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https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Page No.48/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Page No.49/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020
64. Dehors of the objection regarding admissibility of these electronic evidence without proper certificate under Section 65B of the Evidence Act, the trial Court has admitted them in evidence and proceeded. Even assuming they are admissible in evidence without proper certification, the contents of these communication does not lend any credence to the prosecution case that A1 and his family stayed at Marlin Apartments from 27.05.2013 to 02.06.2013 at the courtesy of A4. The contradiction notes in the letters make the prosecution highly improbable.
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65. Thiru.Anatha Krishnan (P.W.22), had deposed that on 24/06/2016, he received through e-mail the correspondence made between the Chief Vigilance Officer of Central Bank of India enclosing invoice No:151976 dated 08/05/2013 of Marlin Apartments, London. He handed over it to D.Sridhar, Inspector along with a certification under Section 65B of Indian Evidence Act for the authenticity of the emails downloaded by him. He handed over the case file to D.Sridhar, Inspector on 20/08/2016 on his transfer.
66. D.Sridhar (PW-25), who took over the investigation from T.Ananda Krishnan, in his chief examination had deposed that he recorded the statement of P.W-22 and then filed the final report on 02/05/2017. In the cross examination, he confirms that none of the members of RLCC had made any dissenting note in the minute dated 31.05.2012 (Ex.P.91) for sanctioning additional term loan of Rs.7 crores to A-2. He confirms that the letter of A-1 seeking transfer recovered from A-4 residence which form part of Ex.P-86 series is an unsigned, undated and without the detail to whom it is addressed. In the cross examination, he admit that he examined L.W-33 (Prabu Serumadar) and recorded his statement when L.W-33 was in Chennai but the said witness not examined in the Court though he is a material witness for prosecution. He is Page No.51/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 not aware how many Apartments properties Marlin Apartments have in London area. He is not aware how many register, Marlin Apartments maintains. He did not contact Marlin Apartments for any details. He confirms the fact that in one of the e-mail, Marlin Apartments had stated that refund was not possible since A-3 has not cancelled the reservation before 72 hours of check-in.
67. Though there are two contradictory versions which alleged to have been emanated from Marlin Apartments, London, it is very pertinent to note that the Investigating Officer of C.B.I had not contacted Marlin Apartments directly in the course of their investigation. One set of document alleged to have been sent to P.W.9 informing none occupied against the booking made by K.N.Ramachandran (A4) from 27.05.2013 to 02.06.2013 and a g-mail to A4 that refund for not occupying the room will not be given. Another set of documents which alleged to have been sent by Marlin Apartments to P.W.10 along with covering letter confirms that booking made by K.N.Ramachandran (A4) for the period of 27.05.2013 to 02.06.2013 for Queen Street property on behalf of the guest R.Thiyagarajan. The said letter also adds that they cannot disclose whether R.Thiyagarajan stayed with family members or card details used to provide payment. The above answer is in response to the query raised by Page No.52/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 P.W.10 whether R.Thiyagarajan stayed at Marlin Apartments on the booking made by K.N.Ramachandran.
68. If R.Thiyagarajan really stayed at Marlin Apartments during the above mentioned period, then there is no necessary for M/s.Marlin Apartment, London to make contradictory informations.
69. Ex.P.68 is the invoice of Marlin Apartments. This is dated 08.05.2013. Whereas the booking for the room confirmed by Marlin Apartments only on 09.05.2013. The details of invoice discloses that R.Thiyagarajan had stayed only three nights between 27.05.2013 to 02.06.2013. The exact dates are not reflected in the details provided in the said invoice. A prudent investigator ought to have contacted Marlin Apartments and enquired them about the documents collected during the course of their investigation and got clarified why there is contradictory information about the booking made in the name of K.N.Ramachandran and the communication from Marlin Apartments in Queen Street stating that no arrival of guest till 28.05.2013 at 03.43 p.m and subsequent mail issued by Marlin Apartments stating that refund for the booking is not possible since cancellation was not made 72 hours prior to Page No.53/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 check-in-date and request for cancellation not received within the said period.
70. Referring to earlier e-mail dated 28.05.2013, informing non- arrival of the guest, the e-mail declining refund was communicated by Marlin Apartments through e-mail dated 07.10.2013 at 04.43 p.m and the later letter Ex.P.68 along with the invoice dated 08.05.2013 providing conflicting informations, should have been clarified by Investigating Officer from Marlin Apartments by enquiring the person concern with Marlin Apartments. The Investigating Officer in this case has miserable failed to carry on investigation with Marlin Apartments. This failure is fatal to the prosecution.
71. The trial Court with truncated and contradictory informations had erroneously held that R.Thiyagarajan stayed in Marlin Apartments on the booking made by K.N.Ramachandran. The reason for such erroneous conclusion is the undue reliance on the invoice marked as Ex.P.68. The said invoice is dated 08.05.2013 a day before the booking for the rooms confirmed. How invoice could be raised even before confirmation of the booking not considered by the trial Court.
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72. The most relevant documents in this case is that e-mail of Marlin Apartments dated 28.05.2013 at 3.43 p.m which clearly discloses that till that time the guest has not arrived to check-in. The alleged invoice Ex.P.68 received by P.W.10 on 24.06.2016 and forwarded to P.W.22 and handed over it to P.W.25 being a digital document, its authenticity not established in the manner known under law.
73. As contended by the Learned Senior Counsels appearing for the appellants, the e-mails from Marlin Apartments not received by Investigating Officer but by somebody else. This is taken as an evidence without necessary certificate from the person who received that e-mail. To appreciate the e-mail as an electronic document for its admissibility, the person to whom it is addressed has to speak about it and the person with the custody of the electronic device from which the print out taken ought to have certified its authenticity under Section 65B of Indian Evidence Act. If the person who received the mail in-turn forwards the message to somebody else, the authenticity of the original e-mail cannot be certified by recipient of the forwarded message. In this case, P.W.10 is the person who received the e-mail from Marlin Apartments. That e- mail not marked or certified by P.W.10 under Section 65 B of Indian Evidence Page No.55/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Act. The message forwarded by P.W.10 is marked with Section 65B certificate of P.W.22 and same accepted by the trial Court.
74. To say, in short print out of an electronic data is the secondary evidence but admissible in evidence if it is supported by Section 65B certificate. If it is forwarded to some other third party, it becomes copy of the secondary evidence which is not admissible in evidence even if it is supported by certificate under Section 65B of Indian Evidence Act given by the recipient of the forwarded message, since its authenticity is only for the forwarded message and not the original message received by P.W.10.
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75. Dehors of the legal impermissibility, this Court is of the view that the entire communication to and from Marlin Apartments, London has to be rejected in toto as inadmissible and unreliable, since the Investigating Officers P.W.22 and P.W.25 have not taken any interest to collect informations directly from Marlin Apartments and record the statements. They have not made any efforts to verify the authenticity of contradictory informations provided by Marlin Apartments which could be explicitly seen from comparing Ex.P.64 to Ex.P.68 and Ex.P.86 series.
76. Contrarily the accused A1 had probabilised that he landed London only on 28.05.2013 stayed at Marlin Apartment from 28.05.2013 to 30.05.2013, vacated and paid directly by cash USD/GBP. Even according to the prosecution witnesses, A-1 Thiyagarajan before leaving to US and London, had purchased foreign currencies. The statement of accounts relating to SB account of Mr.R.Thiyagarajan and his wife Mrs.Sujatha Thiyagarajan is the joint account been marked as Ex.P.87 through P.W.16 Thiru.Venkatesan, Senior Manager, Central Bank of India. His evidence reads as under:-
“On 02.05.2013 a travel card for US dollor 3000 Page No.57/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Indian Value Rs.1,61, 040/- was debited. Again on the same day US dollor 770 and GBP 300 equivalent value of Rs.67,392/ was debited.
.......
On 03.06.2013 foreign currency GBP 70 equivalent Indian Rupees 6034 was credited in the account. On the same day foreign 156 US dollor Indian equivalent Rs.8,814/- was credited to this account. On the same day FIT US dollor 1095 Indian value Rs.61,978/- is debited to this account.
On 01.07.2013 a travel card refund of US dollors equivalent Indian Rupees 4,887 is credited to this account.
On 10.07.2013 a refund of US dollors 479.34 rupee equivalent Rs.28,569/- is credited to this account. All the above transactions are reflected in the statement of accounts produced by me.”
77. Further, P.W.17 Thiru.A.V.Durga Prasad, the Chief Manager of Central Bank of India has also spoken about purchase of foreign currency by R.Thiyagarajan during the month of January 2013 for his son and during the month of May for himself for the travel purpose. The evidence of P.W.17 based on the statement of account marked as Ex.P.88 series reads as below:-Page No.58/65
https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 “On 02.05.2013 US dollor 3000 in the form of travel card for the purpose of travel was purchased by Mr.R.Thiyagarajan. On the same day he had purchased US dollors 770 and GBP 300 and corresponding Indian rupees were debited from his account.
On 03.06.2013 he has returned GBP 70 and US dollors 156 and corresponding Indian rupees were credited into his account. On the same day he had made an onward remittance of US dollors 1095 to his son Mr.Anirudh Thiyagarajan in the bank of America, USA for Educational Expenses.
On 01.07.2013 he had returned the travel card and balance of US dollors 83.29 and the same was credited in his account in Indian rupees. On 10.07.2013 he has returned US dollors 479.34 from his travel card and equivalent value of Indian rupee was credited to his account.
.......
The total amount of 970 US dollors were purchased by Mr.R.Thiyagarajan during in the year 2013. He had returned 718.63 US dollors. US dollors 3000 was purchased in the form of travel card credit and he returned US dollors 83.29 and US dollors 479.34. In total US dollors 562.63 was returned out of US dollors in the form of travel card.Page No.59/65
https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 Out of 300 GBP purchased Mr. Thiyagarajan has returned GBP 70.”
78. From the above depositions, it could be easily concluded that A1 had enough money to pay across by cash for his stay at Marlin Apartments for three days. The documents relied by the prosecution does not prove that R.Thiyagarajan stayed at Marlin Apartments at the courtesy of A4 for six days as alleged.
79. Having discharged the burden by preponderance of probability by letting evidence and by relying upon the evidence of prosecution as stated above, presumption under Section 20 of P.C act cannot be drawn. More so, in this case the prosecution has miserable failed to prove the basic facts by not examining the best evidence, namely, a representative from Marlin Apartments.
The prosecution has not even care to record the statement of any representative of Marlin Apartments. In the said circumstances, neither presumption under Section 106 of Indian Evidence Act nor presumption under Section 20 of Prevention of Corruption Act can be drawn against the petitioners, when the prosecution unable to prove the basic facts that there was valuable things of A4 Page No.60/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 available for A1 to obtain.
80. F.I.R in this case was lodged on 30.01.2015. Prior to that during the month of September 2013, the General Manager (Audit) had asked P.W.3 Thiru.K.Santhosh to examine the sanctions of loan given by A1. The order was given to him to scrutiny the decisions taken by R.Thiyagarajan, Senior Regional Manager for the period from July 2012 to September 2013. In respect of loans sanctioned by him and the report of P.W.3 dated 12.10.2015 is marked as Ex.P.5. The trial Court had disbelieved the repayment of Air Travel ticket by A1 to P.W.13 through Ex.P.12 and encashed during the month of January 2013 by terming it as an afterthought and make belief record. While the suspicion about the sanction of loans by A1 was entertained by the General Manager only in the month of September 2013, A1 could not have anticipated that and created document 8 months prior to action initiating the scrutiny of his conduct. Similarly, communication of e-mail from Marlin Apartments dated 28.05.2013 at 2.43 p.m reporting none arrival of guest could not be termed as a document created by the accused persons in anticipation. Whereas examination of Ex.P.68 the invoice which was obtained three years after the occurrence appears to be a concocted documents not properly explained by the prosecution Page No.61/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 how it came into the hands of P.W.10 and it is dated 08.05.2013, a day prior to the Booking of the room.
81. P.W.10 in his chief examination had specifically stated that based on the request letter received from C.B.I, he sent an e-mail to Marlin Apartments, London on 21.06.2016 and got reply on the same day enclosing invoice dated 08.05.2013. P.W.22, the Investigating Officer at that point of time claims that these communications were forwarded to him by P.W.10 and he took a print out of it. In the cross examination, he admits that he did not receive any reply from Marlin Apartment. He contradicts P.W.10 evidence regarding CBI request to write to Marlin Apartments, London to get the details regarding the stay of A1 and his family. He has also categorically stated that it is not correct to state that he wrote letter to officials of CBI to get the details from Marlin Apartments, London about A1 stay at London. If he had not requested P.W.10 to write to Marlin Apartments to get details, then why P.W.10 forward the e-mail of Marlin Apartments along with invoice to P.W.22 is not been explained by the prosecution.
82. That apart, P.W.22 in the cross examination had deposed as Page No.62/65 https://www.mhc.tn.gov.in/judis Crl.A.Nos.167, 182 & 183 of 2020 below:-
“I did not visit London for investigation with regard to this case. Through diplomatic channels we sent communications to London Authorities requesting for details of stay of Mr.R.Thiyagarajan and his family at Marlin Apartments, London, but we did not receive any reply from them through the diplomatic channel.“
83. Thus, Investigating Officer has not received any information from Marlin Apartments. The information given to him by P.W.10 though claim to be obtained from Marlin Apartments on the request of Investigating Officer. P.W.22 denies any request to officials of Central Bank of India to get information from Marlin Apartments. Then out of the blue, Ex.P.68 invoice falls into the mail box of P.W.22 which he had authenticated by certificate under Section 65 B of Indian Evidence Act.
84. Thus, it is very hard to believe the prosecution case based on the exhibits which bristles with infirmity and does not inspire confidence to treat it as a reliable documents.
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85. For the reasons stated above, this Court set aside the conviction and sentence passed by the Special Court No.1 (Cases Relating to M.P and M.LA), Chennai, holding it as outcome of improper appreciation of facts and law. Accordingly, these Criminal Appeal Nos.167, 182 & 183 of 2020 are allowed. The appellants 1 to 4 shall be set at liberty forthwith. Fine amount paid if any, shall be refunded to the appellants.
25.09.2024
Index :Yes.
Internet :Yes.
Speaking Order/Non-Speaking order.
bsm
To:-
1. The Special Court No.1 (MP & MLA cases), Chennai
2. The Inspector of Police, SPE, CBI, ACB,
Sastri Bhavan, Nungambakkam, Chennai.
3. The Public Prosecutor, High Court, Madras.
DR.G.JAYACHANDRAN,J.
bsm
Page No.64/65
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.167, 182 & 183 of 2020
Delivery common judgment made in
Crl.A.Nos.167, 182 & 183 of 2020
25.09.2024
Page No.65/65
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