Madras High Court
The State By vs K.Palanisamy on 17 September, 2018
Author: P. Velmurugan
Bench: P. Velmurugan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON :: 27.07.2017
PRONOUNCED ON :: 17.09.2018
CORAM
THE HONOURABLE MR. JUSTICE P. VELMURUGAN
CRL.A.No.1052 of 2006
The State by
Inspector of Police,
PE/ACB/CBI/Chennai .. Appellant/Complainant
Vs
1. K.Palanisamy
2. S.Krishnamurthi ..Respondents/Accused
Prayer: Criminal Appeal filed under Section 374 of Cr.P.C against the judgment of acquittal passed by the III Additional Sessions Judge (CBI Cases), Coimbatore in C.C.No.8 of 1999 dated 13.11.2002.
For Appellant : Mr. K.Srinivasan
Spl. Public Prosecutor for CBI Cases
For Respondent : Mr. E.S.Dhanasekaran for R1
M/s.P.T.Ramadevi for R2
J U D G M E N T
This Criminal Appeal has been arising out of the judgment of the learned trial Judge acquitting the respondents. The respondents are accused 1 and 2 in C.C.No.8 of 1999 on the file of the III Additional Sessions Judge (CBI Cases), Coimbatore for the offences punishable under sections 120(B) read with 420, 467, 468, 467 read with 471 and 13(2) read with 13(1) (d) of the Prevention of Corruption Act 1998.
2. The case of the prosecution is as follows :
The first respondent was working as Assistant Branch Manager in National Insurance Company Limited, Kangeyam branch during the Year 1991. He was maintaining SB Account Number 1 with Bharat Overseas Bank, Moolapalayam Branch and SB account No 716 with State Bank of India, Kangayam. As Assistant Branch Manager, he was empowered to order refund of premium already paid by the insured and to give special discount on the marine/ fire insurance policies and the second respondent was working as an Agent in National Insurance Company Limited, Erode Division during the year 1991. He is maintaining SB account No 6187 with UCO Bank Erode. He is closely known to the first respondent.
3. On 24.07.90, Marine Policy No.501405/21/26/006/90 was issued by the first respondent in favour of M/s.Pallipalayam Spinners Pvt. Limited, Nilavarappatti, Salem covering the risk on machinery to the extent of Rs.24.00 Lakhs and an amount of Rs.4,801/- was collected as premium from the insured. The first respondent dishonestly and fraudulently prepared a letter in the letter head of M/s.Pallipalayam Spinners Pvt. Limited using his office typewriter showing as if it was prepared by the insured requesting for refund of premium of Rs.4,801/-, as the machinery was not supplied by the manufacturer. Thereafter, the first respondent forged the signature of one Ramesh, relative of one of the Directors of M/s.Pallipalayam Spinners Pvt. Limited on the above said letter showing as if the Director of M/s.Pallipalayam Spinners Pvt. Limited had signed the letter. He then made a note on the said forged letter falsely mentioning that he had verified the invoice and stocks and found that the machinery was not received by the insured. The first respondent knowing fully well that the refund claim was based on forged documents prepared by him, abused his official position and allowed refund of premium of Rs.4,801/-. Further, he canceled the insurance policy and passed and endorsement stating that the insured was entitled for refund of Rs.4,801/- as the goods covered under the said policy was not supplied by the manufacturer.
4. Further, the first respondent obtained the signature of Shri Prabhuram in the pre-receipt (Discharge Voucher) dated 02.07.1991 for Rs.4,801/-, making him to believe that the said amount would be paid to M/s.Pallipalayam Spinners Pvt. Limited. He then directed Shri Velusamy, Assistant working in his office to prepare a Disbursement Voucher in the name of M/s.Pallipalayam Spinners Pvt. Limited towards the refund of premium of Rs.4,801/- and the same was authorised by him.
5. Further, the first respondent in his own handwriting prepared a Cheque No.602486 for Rs.4,801/- in favour of the second respondent and issued it to him instead of issuing the cheque in favour of M/s. Pallipalayam Spinners Pvt. Ltd. The second respondent knowing fully well that the said cheque was meant for M/s.Pallipalayam Spinners Pvt. Limited and that he was not entitled for the refund of the said amount, deposited the above said cheque for Rs.4,801/- in his SB Account No.6187 with UCO Bank, Erode and an amount of Rs.4,770/- was credited to his account on 20.07.1991.
6. Further, Marine Insurance Policy No.501405/21/04/0010/90 was issued by the first respondent in favour of M/s.Pallipalayam Spinners Pvt. Limited on 17.09.91 for the period from 30.10.90 to 29.10.91 and an amount of Rs.2,201/- was paid as premium for the said policy. The first respondent without receiving any request letter from the insured for the refund of the premium, canceled the policy and passed an endorsement stating that the insured had not declared the goods covered by the insurance policy. He thereafter obtained the signature of Shri Palaniappan, Director, M/s.Pallipalayam Spinners Pvt. Limited in the discharge voucher dated 4.11.91 for Rs.2,170/- making him to believe that the said amount would be paid to him. On the basis of the discharge voucher fraudulently obtained by the first respondent, Shri Velusamy, Assistant prepared the disbursement voucher dated 04.11.1991 for Rs.2,170/- in favour of M/s.Pallipalayam Spinners Pvt. Limited on the specific instructions of the first respondent. Though the disbursement voucher dated 04.11.1991 was prepared in favour of M/s.Pallipalayam Spinners Pvt. Limited, the first respondent himself prepared cheque No.602597 dated 04.11.1991 for Rs.2,170/- in the name of the second respondent and handed over the same to him. The second respondent knowing fully well that he was not entitled for the said amount, deposited the cheque in his SB Account No.6187 at UCO Bank, Erode on 13.11.1991 and withdrew the proceeds subsequently.
7. Further the first respondent issued marine insurance policy No.501405/21/0006/91 in favour of M/s.Pallipalayam Spinners Pvt. Limited. He obtained the signature of Shri.Palaniappan, Director of M/s.Pallipalayam Spinners Pvt. Limited in the discharge voucher dated 27.04.1992 for Rs.2355/- towards special discount of 25% of the premium making him to believe that the said amount would be paid to him. On his directions, Shri Velusamy, Assistant prepared disbursement voucher dated 27.04.92 for Rs.1,935/- in the name of M/s.Pallipalayam Spinners Pvt. Limited showing as if the said amount would be paid to M/s.Pallipalayam Spinners Pvt. Limited. The first respondent thereafter prepared in his own handwriting cheque No.18841 dated 27.04.92 for Rs.2355/- in favour of one Krishnamurthy, instead of drawing the cheque in favour of M/s.Pallipalayam Spinners Pvt. Limited. He thereafter forged the signature of the said Krishnamurthy on the back of the cheque indicating that the same had been endorsed to him. He received the cash of Rs.2355/- from SBI, Kangeyam by signing on the back of the said cheque.
8. Further, the first respondent issued Marine Policy Nos.501405/21/02/0006/90 & 501405/21/04/0011/90 in favour of M/s.Pallipalayam Spinners Pvt. Limited and an amount of Rs.3601/- and Rs.12,892/- was received as premium. The first respondent obtained the signature of Shri Jayagopalan, Director of M/s.Pallipalayam Spinners Pvt. Limited in discharge voucher dated 24.09.1992 for a total sum of Rs.14,827/- (Rs.1935/- and Rs.12,892/- respectively) making him to believe that the said amount would be paid to him. The first respondent authorised the disbursement voucher for Rs.14,827/- prepared by Shri Velusamy towards the refund of Premium in the name of M/s.Pallipalayam Spinners Pvt. Limited. The first respondent then prepared in his own handwriting cheque No.981211 dated 24.09.1992 for Rs.14,827/- in his name instead of drawing the cheque in favour of M/s.Pallipalayam Spinners Pvt. Limited. He presented the said cheque at SBI, Kangayam on 07.10.1992 and received an amount of Rs.14,827/-.
9. Further, the first respondent issued marine insurance policy No.501405/21/004/0008/90 in favour of M/s.P.K.P.N.Spinning Mills Limited and collected an amount of Rs.2,431/- as premium. He obtained the signature of Shri Prabhuram in the discharge voucher dated 04.11.1991 for Rs.2,400/- towards refund of premium making him to believe that the said amount would be paid to him. He authorised disbursement voucher dated 04.11.1991 for Rs.2,400/- prepared by Shri Velusamy in the name of P.K.P.N.Spinning Mills Limited. The first respondent thereafter prepared in his own handwriting cheque No.602598 dated 04.11.1991 for Rs.2,400/- in favour of the second respondent, instead of drawing the cheque in favour of M/s.P.K.P.N.Spinning Mills Limited. The second respondent deposited the cheque in his SB Account with Erode on 13.11.1991 and subsequently withdrew the amount.
10. Further, the first respondent issued marine insurance policy No.501405/21/004/0009/90 in favour of M/s.P.K.P.N.Spinning Mills Limited and collected an amount of Rs.2,161/- as premium. He obtained the signature of Shri Prabhuram in the discharge voucher dated 27.04.1992 for Rs.2,130/- towards refund of premium making him to believe that the said amount would be paid to him. He authorised the disbursement voucher dated 28.04.1992 for Rs.2,130/- in the name of P.K.P.N.Spinning Mills Limited. The first respondent thereafter prepared in his own handwriting cheque No.0018840 dated 28.04.1992 for Rs.2,130/- in favour of the second respondent, instead of drawing the cheque in favour of M/s.P.K.P.N.Spinning Mills Limited. The first respondent withdrew the amount by depositing the cheque with SBI Kangayam.
11. Further, the first respondent issued fire insurance policy No.501405/11/23/004/91 in favour of M/s.P.K.P.N.Spinning Mills Limited and collected an amount of Rs.12,115/- as premium. He obtained the signature of Shri Prabhuram in the discharge voucher dated 30.03.1992 for Rs.4236/- towards refund of premium making him to believe that the said amount would be paid to him. He authorised disbursement voucher dated 30.03.1992 for Rs.4236/- in the name of P.K.P.N.Spinning Mills Limited. The first respondent thereafter prepared in his own handwriting cheque No.602800 dated 30.03.1992 for Rs.4236/- in favour of the second respondent, instead of drawing the cheque in favour of M/s.P.K.P.N.Spinning Mills Limited. Further, the first respondent deposited the cheque and withdrew the proceeds subsequently.
12. Further, the first respondent issued fire insurance policy Nos.501405/11/45/90,501405/11/35/91,5014305/11/43/91,501405/11/55/91,501405/11/91/90,501405/11/67/90,501405/11/68/90,501405/11/47/90,501405/11/14/90,501405/11/21/90,501405/11/22/90501405/11/32/90,501405/11/48/90,501405/11/49/90,501405/11/53/90,501405/11/55/90,501405/91/68/90,501405/11/69/91,510405/11/73/91,501405/11/30/91 in favour of M/s.Pallipalayam Spinners Pvt. Ltd. The first respondent as the Assistant Branch Manager of National Insurance Company Limited, was empowered to sanction 10% discount on the premium paid by the insured. He dishonestly obtained the signature of Shri Jayagopalan, Director of M/s.Pallipalayam Spinners Pvt. Limited in discharge voucher dated 17.03.1992 for Rs.19,848/-showing as if the said amount represented 10% of the total premium paid for the said 20 fire insurance policies, making him to believe that the amount of Rs.19,848/- would be paid to him. On the instructions of the first respondent, Shri Velusamy, Assistant prepared disbursement voucher dated 17.03.1992 for Rs.19,848/- in favour of M/s.Pallipalayam Spinners Pvt. Limited. The first respondent thereafter prepared cheque No.602755 dated 17.03.1992 for Rs.19,848/- in favour of the second respondent, who deposited the said cheque in his SB Account at UCO Bank, Erode and withdrew the proceeds subsequently.
13. Further, the first respondent issued fire insurance policy Nos.501405/11/13/0089/91 and 501405/11/13/0036/91 in favour of M/s.Sampoorna Laxmi Mills Limited. He obtained the signature of Shri Arun, Director of M/s.Sampoorna Laxmi Mills Limited in the discharge voucher dated 26.03.1993 for Rs.13,287/- towards refund of premium, making him to believe that the said amount would be paid to him. The first respondent authorised a disbursement voucher for Rs.13,287/- in the name of Sri Sampoorna Lakshmi Spinning Mills Ltd. Further, the first respondent prepared cheque No.327849 dated 26.03.1993 for Rs.13,287/- in his own handwriting in his favour instead of drawing the cheque in favour of M/s. Sampoorna Lakshmi Spinning Mills Ltd. He deposited the said cheque in his SB Account No.1 with Bharat Overseas Bank, Moolapalayam and withdrew the proceeds subsequently.
14. Further, the first respondent issued fire insurance policy Nos.501405/11/23/0047/90 dated Nil in favour of M/s.Pallipalayam Spinners Pvt. Limited and collected premium of Rs.91,428/- against the said policy. The first respondent obtained the signature of Shri Nagarajan, one of the Directors of M/s.Pallipalayam Spinners Pvt. Limited in the discharge voucher dated 04.11.1992 for Rs.9,355/- towards 10% refund of premium, making him to believe that the said amount would be paid to him. A1 authorised the disbursement voucher dated 03.11.1992 for Rs.9355/- in favour of M/s.Pallipalayam. The first respondent prepared cheque No.981245 dated 03.11.1992 for Rs.9,355/- in his own handwriting in his favour instead of issuing the cheque in favour of M/s.Pallipalayam Spinners Ltd. He deposited the said cheque in his SB A/c at SBI, Kangeyam Branch and withdrew the proceeds subsequently.
15. Further, the first respondent issued a miscellaneous insurance policy Nos.501405/44/05/0007/91 in favour of M/s.Velathaal Spinning Mills Limited. The first respondent obtained the signature of the first respondent, Managing Director of M/s.Velathaal Spinning Mills Limited in the discharge voucher dated 25.11.1992 for Rs.7,755/- towards refund of premium, making him to believe that the said amount would be paid to him. The first respondent authorised a disbursement voucher for Rs.7,755/- in favour of M/s. Velathaal Spinning Mills Ltd. The first respondent prepared cheque No.981278 dated 25.11.1992 for Rs.7,755/- in his own handwriting in his favour instead of drawing the cheque in favour of M/s. Velathaal Spinning Mills Ltd. He deposited the said cheque in his SB Account with Bharat Overseas Bank, Moolapalayam and subsequently withdrew the amount.
16. Further, the first respondent issued fire insurance policy No.501405/11/23/0005/92 in favour of M/s.Velathaal Spinning Mills Limited and collected an amount of Rs.1,17,420/- as premium. The first respondent without passing any endorsement authorised disbursement voucher dt.23.04.93 for Rs.3,183/- towards the refund of premium. The first respondent prepared cheque No.328308 dated 23.4.93 for Rs.3,183/- in his own handwriting in his favour instead of drawing the cheque in favour of M/s. Velathaal Spinning Mills Ltd. He deposited the said cheque in his SB Account with Bharat Overseas Bank, Moolapalayam and subsequently withdrew the amount.
17. Further, the first respondent issued fire insurance policy No.501405/11/43/0001/90 in favour of M/s.Velathaal Spinning Mills Limited. The first respondent passed an endorsement and authorised disbursement voucher dated 04.11.1991 for Rs.4,488/- towards the refund of premium. The first respondent prepared cheque No.602600 dated 04.11.1991 for Rs.4,488/- in his own handwriting in favour of the second respondent. The second respondent deposited the cheque in his SB Account with UCO Bank, Erode. He then issued a cheque in favour of the first respondent, who presented the cheque in the bank and collected the amount by cash.
18. Further, the first respondent issued fire insurance policy No.501405/11/23/0021/92 in favour of M/s.Shree Jagam Spinning Mills Limited and collected an amount of Rs.10,847/- as premium against the policy. The first respondent obtained signature of Shri Arun one of the Directors in the discharge voucher for Rs.10,847/- by making him to believe that the said amount would be paid to him. He passed an endorsement and authorised the disbursement voucher dated 05.01.1993 for Rs.10,847/- towards the refund premium. The first respondent prepared cheque No.327140 dated 05.01.1993 for Rs.10847/- in his own handwriting in his favour instead of drawing the cheque in favour of M/s.Shree Jagam Spinning Mills Ltd. Subsequently, the first respondent deposited the said cheque in his SB Account with Bharat Overseas Bank, Moolapalayam and the proceeds were credited in his account.
19. Further, the first respondent issued fire insurance policy No.501405/11/23/0021/92 in favour of M/s.Shree Jagam Spinning Mills Limited. He obtained the signature of Shri Jagannathan one of the Directors in the discharge Voucher for Rs.26,887/- towards refund of excess premium paid by making him to believe that the said amount would be paid to him. He passed an endorsement and authorised disbursement voucher dt.22.06.1992 for Rs.26,887/- towards refund of excess premium paid. The first respondent prepared cheque No.483610 dated 22.06.1992 for Rs.26887/- in his own handwriting in his favour instead of drawing the cheque in favour of M/s.Shree Jagam Spinniing Mills Ltd. Subsequently, the first respondent deposited the said cheque in his SB Account with Kangeyam Branch and got the amount credited to his account.
20. Thus, the first and second respondents entered into a criminal conspiracy to cheat National Insurance Company Ltd., Kangeyam Branch and to commit criminal misconduct in the matter of refund of premium to the insured and payment of special discount on the premium paid and in pursuance of the said criminal conspiracy, the first respondent forged the signature of the insured in the letter of request and he dishonestly and fraudulently obtained the signature of the Directors/ relatives of Directors of the insured companies in the discharge vouchers making them to believe that the amount covered in the discharge vouchers would be paid to them, the first respondent prepared cheques in his own handwriting in his favour and in favour of the second respondent instead of drawing the same in favour of the respective insured companies, the first and second respondents deposited such cheques in their respective SB Accounts with Bharat Overseas Bank, Moolapalayam, SBI, Kangeyam Branch and UCO Bank, Erode and withdrew the proceeds subsequently. Thereby, first and second respondents obtained undue pecuniary advantage to the tune of Rs.1,28,569/- causing corresponding loss to the National Insurance Co. Ltd.
21. Since the first respondent was removed from the service on 28.06.1999, therefore, the sanction for the prosecution under section 19(1) was obtained from the competent authority and filed final report before the II Additional Sessions Judge, Coimbatore against the respondents for the offences punishable under sections 120B, read with 420, 468, 471 IPC and 13(1)(b) of Prevention of Corruption Act and Specific Offence under sections 420, 468, 471 read with 468 IPC and 13(2) and 13(1)(d) of Prevention of Corruption Act. Thereafter, the learned Special Judge had taken the final report on file in Special C.C.No.8 of 1999.
22. Based on the final report, the trial Court, took cognizance and framed charges under sections 120-B read with 420, 467, 468, 467 read with 471 of IPC under sections 13(2) read with 13(1)(d) of Prevention of Corruption Act and under sections against the respondents 1 and 2 and under sections 420, 467, 468, 467 read with 471 and section 13(1)(d) read with 13(2) of Prevention of Corruption Act (each 15 counts) against the first respondent and under sections 420 ( 7 counts) against the second respondent.
23. Since, the accused/respondents pleaded not guilty, they were tried for the above charges. In order to prove the charges, on the side of the prosecution, 17 witnesses were examined and 123 exhibits were marked along with 5 material objects. After completion of prosecution evidence incriminating circumstances were put forth before the respondents and they denied it as false. The respondents have not chosen to examine any witnesses, but marked Ex.B.1 to Ex.B.20.
24. After completion of trial, the Special Court found that though the prosecution has proved some of the charges, acquitted the respondents on the ground that the officer who had registered the First Information Report has investigated the matter and filed final report in this case and therefore, the case of the prosecution is vitiated and on the sole ground the respondents were acquitted.
25. Feeling aggrieved over the judgment of the Special Court, the State had preferred the present appeal on the ground that though the prosecution has proved its case through oral and documentary evidence, the learned Special Judge also recorded that some of the charges against the respondents have been proved, but acquitted the accused on the sole ground that the Officer who had registered the First Information Report has conducted investigation and thereafter, filed final report. The learned Special Judge failed to take into consideration several judgments cited by the appellant that the Officer who had registered the case shall investigate the case and such investigation shall not be vitiated. Further, the learned trial Judge was wrong in coming to the conclusion that there was no loss or injury either to the insured companies or the National Insurance Co. Ltd., Kangayam by the commissions or omission of the respondents/accused. Further, the learned Special Judge failed to consider the admissions made by the respondents during the questioning under section 313 Cr.P.C. Therefore, the judgment of the learned Special Judge is liable to be set aside.
26. Heard the learned counsel for the appellants and the learned counsel for the respondents.
27. The learned counsel for the appellant would submit that the first respondent was working as an Assistant Branch Manager in National Insurance Company Limited, Kangayam Branch during the year 1991 and he had prepared Order for refund of premium already paid by the insurer and to get special discount. The second respondent, who was working as an agent in the National Insurance Company during year 1991, was closely associated with the first respondent. Both the respondents entered into a criminal conspiracy and they have opened accounts in their name in the bank and have also created false documents as if they have remitted the commission of the refund to the insurer and subsequently they paid to the insured. But the respondents connived with each other and created fraudulent accounts and misappropriated the amount. On completion of investigation, as it revealed that the respondents have committed the offence, the appellant has filed final report before the Special Judge, Coimbatore. Though the Special Court found that the evidence of P.W.2 and P.W.6 and also from the admission made by the respondents during the questioning under section 313 Cr.P.C., some of the offences against the respondents have been proved and even though the Special Judge had recorded that the offence of conspiracy against the respondents has been proved, the respondents have been acquitted on the sole ground that the Officer who had registered the First Information Report has investigated the case and relying on the judgments reported in 2002-1 Law Weekly (Crl.) 143 Rathinam Vs. State by Forest Range Officer Vashapadi, Salem District), 2001-1-Law Weekly (Crl.) Page 230 (S.Chandran Vs. State Rep. By Inspector of Police Sivakasi Town Police Station). But, whereas, he had failed to consider that there are other authorities produced by the appellant in support of their contention that the Officer who had registered the First Information Report can conduct investigation and law does not prohibit the officer, who resigned First Information Report, from investigating the case and simply acquitted the accused on the sole ground that the Officer who had registered the First Information Report has conducted investigation. Therefore, the finding of the learned Special Judge is perversed and therefore liable to be set aside.
28. Further, the learned counsel for the appellant would submit that except the witnesses P.W.8 to 12 and 16, other prosecution witnesses have supported the case of the prosecution and especially the evidence of P.W.1 to 7 clearly prove the involvement of the accused in this case. Further the evidence of P.W.14, who is a Senior Scientific Officer Group I, Forensic Science Laboratory had clearly spoken about the disputed documents and handwriting also signatures of the respondents and his report Ex.P.122 and Ex.P.123 have been marked which clearly prove that the signature of the respondents in the disputed documents. Further, P.W.15 Private Manager of the National Insurance Company had also clearly spoken in his evidence that on the instructions of the first respondent, he had prepared disbursement vouchers and also made respective entries in the registers. Therefore, from the evidence of prosecution witnesses, the case of the prosecution has been clearly established. P.W.8 to P.W.12 have been examined on behalf of the insured companies. Though they have given statement before the Investigating Officer that the respondents have not paid the refund of premium amount to them, before the Court, for some reason, they have not supported the case of the prosecution. Except P.W.8 to P.W.12, the other prosecution witnesses have clearly spoken about the commission of the offence by the respondents. The learned Special Judge failed to consider these aspects and that the involvement of the respondents have been proved by the prosecution to some extent, the respondents were acquitted on the sole technical ground that the Officer who had registered the First Information Report had conducted investigation and filed Final Report and hence, the finding of the learned Special Judge Warrants interference and also relied upon the judgment of the Hon'ble Apex Court reported in (2004) 5 SCC 223 in the case of State v. V.Jayapaul wherein it is held as follows :-
There is nothing in the provisions of the Criminal Procedure Code which precluded the appellant from taking up the investigation. The fact that the said police officer prepared the FIR on the basis of the information received by him and registered the suspected crime does not disqualify him from taking up the investigation of the cognisable offence. A suo motu move on the part of the police officer to investigate a cognisable offence impelled by the information received from some sources is not outside the purview of the provisions contained in Sections 154 to 157 of the Code or any other provisions of the Code.
In this case, all the evidences are documentary evidence, therefore, there may not be any prejudice. The prosecution has proved the case with oral and documentary evidence cogently and no prejudice would be caused to the respondents/accused for the reasons that the police officer who registered the case has also investigated the case. In view of the above, the officer who registered the case and conducted the investigation will not vitiate the case of the prosecution.
29. In the case of State by CBI v. A.N.Dhyaneswaran reported in 2004 Crl.LJ. 2802 wherein this Court has observed that unless prejudice to the accused is shown, investigation would not be called as impartial merely because the investigation has been conducted by the same person who registered the case.
30. The learned counsel for the respondents would submit that they have refunded the premium amount to the insured persons and the prosecution witnesses P.W.8 to P.W.12 and P.W.16 have clearly stated that the first respondent has refunded the amount to them and they have received the cheque from the first respondent. They have further stated that the amount refunded by the Insurance Company has been reflected in their accounts ledger maintained by them. Therefore the premium amounts have been refunded to the respective parties by the respondents. Moreover, none of the parties have complained that the refundable premium amount was not refunded to them. Further the Officer who had registered the First Information Report has conducted investigation. Once the officer who had registered the case conducts investigation in the case, naturally there may not be fair and impartial investigation.
31. In support of his contentions, the learned counsel relied upon the judgments reported in 2002-1 Law Weekly (Crl.) 143 Rathinam Vs. State by Forest Range Officer Vashapadi, Salem District), 2001-1-Law Weekly (Crl.) Page 230 (S.Chandran Vs. State Rep. By Inspector of Police Sivakasi Town Police Station) and contended that the Hounourable High Courts time and again had held that the Officer who had registered the case cannot conduct investigation. Hence, the Special Judge has rightly rejected the contentions of the appellant and acquitted the respondents and there is no reason for interfering with the judgment of the learned Special Judge and prayed to dismiss the appeal.
32. Heard the rival submissions and perused the entire documents available on record.
33. In order to prove the case of the prosecution, the prosecution has examined P.W.1 to P.W.17 and marked Ex.P.1 to Ex.P.123. On a perusal of the evidence of prosecution witnesses, P.W.1 in his evidence has stated that he was working as Divisional Manager in Erode Division from 1990 to 1992. P.W.2 was working as Senior Grade Assistant in National Insurance Company, Kangayam Branch along with the first respondent at the relevant point of time. P.W.3 was working as the Manger in Kangayam Branch from the year 1997. P.W.1 to 3 have spoken about the procedure to be adopted for refund of premium. They had clearly spoken about the transactions and the manner in which the first respondent used the signed cheque of P.W.2 to refund the premium amount to the insured companies.
34. P.W.2 has categorically stated in his evidence that when he goes outstation on official duty or when goes on leave, he used to give the signed cheques to the Branch Manager and the same will be used by him for disbursing the amounts to the insurers and he had admitted his signatures in Ex.P.10, Ex.P.14, 38, 45, 60, 69, 72, 77 and 80. P.W.3 in his evidence has stated that he is working as the Branch Manager in National Insurance Company, Kanagayam Branch and he used to maintain the registers with respect of receiving of premium and also refund of premium amount to the policy holders and as per the registers maintained in the Branch in the year 1991-1992 B.K.N.Spinning Mills, Pallipalayam Spinning Mills, Sampoorna Lakshmi Spinning Mills Pallipalayam Spinning Mills Limited the collection of premium amounts on various dates have been mentioned in Ex.P.87 and on 22.06.1992, the premium amount has been collected from Jegan Spinning Mills.
35. P.W.4 is the Managing Director of the Velathal Spinning Mills Private Limited from the year 1982 and he took policy for their company when the first respondent was the Branch Manager in the National Insurance Company, Kangayam Branch. He has stated in his evidence that the first respondent came to his office and obtained signatures in the receipts and stated that only if he signs in the receipt, he will get the cheques and that thereafter, the first respondent has neither given cheque nor paid the amount. P.W.5 is the Branch Manager of the Bharat Overseas Bank, Melapalyam Branch at the relevant period and he has stated in his evidence that there was joint account in the name of first respondent and one Saroja in his branch and he has also produced the statement of accounts of the said account. As per the statement of accounts, Ex.P.69, 72, 77 and 86 cheques of the National Insurance Company were purchased from his bank and issued by the National Insurance company. P.W.6 is the Cashier in National Insurance Company at the relevant time. He had also stated in his evidence that he is also aware of the fact that P.W.1 used to give signed cheques whenever he goes on leave or when he goes out for other works and on instructions he will fill the cheques and hand over the cheques to the higher officials. He had further stated that Ex.P.4, 8, 12, 17, 36, 54, 78 and 89 discharge vouchers have been filled by him on the instructions of the first respondent and Ex.P.3, 7, 13, 18, 37, 55, 76, and 90 disbursement vouchers have been filed by him on the instructions of the first respondent. He had further stated that subsequently, he came to know that against the disbursement vouchers, Ex.P.6, 10, 14, 19, 38, 56 and 66 cheques have been filled up by the first respondent and given in the name of the second respondent and Ex.P.45, 69, 72, 77, 80 and 96 cheques have been filed up by the first respondent and issued in his own name.
36. P.W.13, Branch Manager of the State Bank of India has produced Ex.P.94 series statements pertaining to the National Insurance Company for the the period from 1.04.91 to 27.05.93 and as per the above record, Ex.P.69, 72, 77, and 86 cheques issued in the name of the first respondent and Ex.P.6, 14, 19 38, 51, 66 cheques issued in the name of the second respondent, were presented for collection and Ex.P.45 and Ex.P.60 cheques were encashed by the first respondent directly. He had further stated that Ex.P.10 cheque has been given in the name of the second respondent and Ex.P.94 is the endorsement with regard to the encashment of the above cheque by the second respondent. He had further stated that Ex.P.95 is the statement of accounts of the first respondent in Account No.35/716 for the period from 26.02.1992 to 01.06.1993 and Ex.P.80 cheque has been issued in the name of the first respondent and given credit in his account as per Ex.P.96 Credit Slip and the amount has been withdrawn by the first respondent vide his Ex.P.97 cheque.
37. P.W.15 is Branch Manager of UCO Bank at the relevant point of time and he had stated in his evidence that the second respondent is having account in his bank vide Ex.P.103 and Ex.P.104 is the credit slip with respect to the commission of Rs.4801/- deposited in the account of the second respondent and Ex.P.105 is the withdrawal slip for encashment of the said amount by the second respondent. Ex.P.106 is the credit slip for credit of Rs.6365/- into the account of the second respondent and Ex.P.107 is the cheque for Rs.6400/- issued by the second respondent to the first respondent. He had further stated that on 14.12.1991 the first respondent had withdrawn a sum of Rs.2550/- from the account of the second respondent. He had further stated that Ex.P.108 is the credit slip for the credit of Rs.19769/- into the account of the second respondent and Ex.P.93 is the cheque given for Rs.19,600/- to one Chandrasekar and he had withdrawn the said amount from the bank.
38. P.W.17 is the Investigating Officer in this case. P.W.17, on receipt of information registered the case and conducted investigation. He collected documents and sent for Handwriting Expert analysis and on receipt of the report from the Handwriting Expert and on completion of investigation, he filed final report in this case.
39. The first respondent was Branch Manager in National Insurance Company, Kangayam Branch and the first respondent has appointed the second respondent as an agent of the National Insurance Company in Kangayam Branch when he was working as Branch Manager and they are closely associated. Further the accounts maintained by the respondents in the State Bank of India, UCO Bank and Bharat Overseas Bank had been operated by them has not been disputed by the respondents and the respondents have also categorically admitted the same when they were questioned under section 313(1)(b) Cr.P.C. The respondents conspired together and the first respondent prepared cheques in his favour in his own handwriting and in favour of the second respondent instead of drawing the same in favour the respective insured companies and the respondents deposited the cheques in their respective savings account and misappropriated to the tune of Rs.1,28,569/- causing corresponding loss to the National Insurance Company Limited. From the evidence of P.W.1 to P.W.7 and P.W.15 and the documentary evidence, the prosecution has proved its case, especially P.W.4 has stated that the respondents did not refund the money stated in the cheques. Hence, the offences under sections 120B, 420 IPC and 13(1) (d) of the Prevention of Corruption Act 1988 (Act No.49 of 1988) punishable under section 13(2) of the Act have been proved against the first respondent and the offences under sections 120B and 420 IPC have been proved against the second respondent.
40. In the result, the Criminal Appeal is allowed and the judgment of acquittal passed by the learned III Additional Sessions Judge (CBI Cases), Coimbatore in CC.No.8 of 1999 dated 13.11.2002 hereby set aside. However, before recording sentence, the accused has to be heard. Therefore, for question of sentence, the accused are directed to appear before this Court on 24.09.2018.
17.09.2018
FOR QUESTION OF SENTENCE
27.09.2018
The Criminal Appeal has been filed seeking to set aside the judgment of acquittal made by the learned III Additional Sessions Judge (CBI Cases), Coimbatore in C.C.No.8 of 1999 dated 13.11.2002.
2.When the matter came up on 17.09.2018, this Court has allowed the appeal and passed the judgment of conviction and directed the respondents/accused to appear before this Court for question of sentence on 24.09.2018. On 24.09.2018, when the matter was taken up for hearing, the respondents/accused have not appeared before this Court, for question of sentence and hence Non Bailable Warrants have been issued to the respondents/accused and directed the appellant to produce them before this Court on 27.09.2018. Accordingly, today (i.e.) 27.09.2018, both the accused have been produced by the appellant police before this Court.
3. The respondents/accused have prayed for mercy of this Court and requested for minimum punishment and they also submitted that both of them are aged 70 years above. The first respondent/A1 was removed from service. The learned counsel for the respondent/accused also reiterated some mercy may be shown on the respondents/accused.
4. Considering the submission made by the respondents/accused and also the learned counsel for the respondents/accused, this Court found the 1st respondent/A1 found guilty and convicted him for offences under Section 120 (b), 420 and 13(2) of Prevention of Corruption Act, 1988 (Act No.49 of 1988) and sentenced him to undergo five years rigorous imprisonment and fine of Rs.5,000/-, in default, to undergo simple imprisonment for a further period of six months for offences under Section 120 (b), to undergo five years rigorous imprisonment and fine of Rs.5,000/-, in default, to undergo simple imprisonment for a further period of six months for offence under Section 420 and to undergo five years rigorous imprisonment and fine of Rs.50,000/- for the offence under Section 13(2), in default, to undergo simple imprisonment for a further period of six months. The 2nd respondent/A2 found guilty and convicted him for offences under Section 120 (b) & 420 and sentenced him to undergo five years rigorous imprisonment and fine of Rs.5,000/-, in default, to undergo simple imprisonment for a further period of six months for offences under Section 120 (b), to undergo five years rigorous imprisonment and fine of Rs.5,000/-, in default, to undergo simple imprisonment for a further period of six months for offence under Section 420. The sentences are ordered to run concurrently.
27.09.2018
Speaking order/non-speaking order
Index:Yes/No
vrc/tsh
Note : (i) Registry is directed to issue copy of the
judgment by today itself (i.e, on 27.09.2018).
(ii) The appellant is directed to secure the custody
of the accused to execute the period of imprisonment.
To
1.The III Additional Sessions Judge, (CBI Cases), Coimbatore.
2.The Public Prosecutor, High Court, Madras.
3.The Record Clerk, VR Section, High Court, Madras.
P. VELMURUGAN, J.
vrc/tsh Pre-delivery Judgment in Crl.A.1052 of 2006 .09.2018.