K.Gopal Mohan vs S.Govindan Nair on 25 March, 2011

[Cites 20, Cited by 2]

Kerala High Court

K.Gopal Mohan vs S.Govindan Nair on 25 March, 2011

====================== Crl.A. Nos.75, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 122, 123, 127, 135, 133, 134, 150, 149, 151, 154 OF 2003 & 267, 268, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 536, 537 and 538 of 2004 ====================== Dated this the 25th day of March, 2011.

COMMON JUDGMENT These appeals are against the common judgment dated 30.12.2002 in C.C.Nos.5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of 1998 on the file of the Special Judge (SPE/CBI)- II, Ernakulam. Criminal Appeal Nos.75, 95, 93, 98, 96, 92, 99, 91, 88, 86, 87, 97, 94, 90 and 89/1993 respectively were preferred by the first accused. Criminal Appeal Nos.268, 538, 533, 530, 534, 536, 532, 528, 267, 537, 527, 526, 529, 535 and 531/2004 respectively were filed by the second accused. The third accused in C.C.Nos.5/1998 and 7/1998 died pending trial. The third accused in C.C.Nos.10/1998, 11/1998 and 12/1998 were acquitted by the trial court. Criminal Appeal.No.127/1993 was filed by the third accused in C.C.No.6/1998. Criminal Appeal Nos. 122/1998 and 133/1998 were filed by the 3rd Crl.A. Nos.75 OF 2003 & connected cases 2 accused in C.C.Nos.8/1998 and 9/1998. Criminal Appeal Nos.135, 156, 134, 123, 149, 154 and 151/1993 were filed by the third accused in C.C.Nos.13/1998 to 19/1998 respectively. The Inspector of Police SPE/CBI, Kochi, in Crime No.RC.25/A/1993 prosecuted the appellants along with deceased and acquitted third accused in the respective cases alleging offences under Sections 120B r/w 420, 466, 468 and 471 IPC and Section 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act' for short) and also under Section 13(2) r/w 13(1) (d) of the PC Act and Sections 420, 468, 471 IPC. In C.C.No.8/1998 to 19/1998 offence under Section 419 IPC was also alleged against the third accused. Conspiracy for the said offence was also alleged against all the accused in those cases.

2. The prosecution case in brief is that the first accused was working as Field Officer/Assistant Manager in State Bank of India at its Main Branch, Kottayam from 13.06.1989 to 29.06.1992 and as such he is a public servant as defined under Section 2(c) of the PC Act. The Bank had scheme for Crl.A. Nos.75 OF 2003 & connected cases 3 Agricultural Cash Credit (in short 'ACC') loans for raising crops in Thiruvarp and Nattakam villages. The first accused being the Field Officer, it was his duty to recommend for sanctioning ACC loans to the eligible loanees after ensuring their need and possession of the agricultural land for which loans to be granted. The applicants for loan had to produce Tax Receipt and Possession Certificate issued by the respective Village Officer in proof of possession of land along with a No Due Certificate from the local Co-operative Bank certifying that the applicants had no dues with the Co- operative Bank in respect of the land. The first accused had the duty to identify the borrower and to conduct pre- sanction inspection to ascertain the location of the land, verify the credit worthiness of the party, the viability and feasibility of the proposal, the credit requirements and repaying capacity of the borrower. The prosecution would allege that the first accused with the intention to deceive State Bank of India, abusing his official position as a public servant committed criminal conspiracy with the common Crl.A. Nos.75 OF 2003 & connected cases 4 second accused and different third accused and in pursuance to the conspiracy, forged Tax Receipts and Possession Certificates as if issued from the Village Office, Thiruvarpu and No Due Certificate issued from the Thiruvarpu Village Service Co-operative Bank. In C.C.No.7 of 1998 to 19/1998, in pursuance to the criminal conspiracy the respective third accused also impersonated as fictitious persons and using the forged Tax Receipts, Possession Certificates and No Due Certificates, applications were made for ACC loans. The first accused being a member of the group of conspirators, without making any inspection, recommended ACC loans in favour of the third accused in C.C.Nos.5 and 6/1998. Loans were also recommended in favour of the 3rd accused in the other cases but as impersonate persons. Loan amount @ Rs.10,000/- each was disbursed to the respective third accused knowing that the Tax Receipts, Possession Certificates and No Due Certificates were forged and that the 3rd accused in C.C.Nos.7/1998 to 19/1998 are impersonated applicants. Crl.A. Nos.75 OF 2003 & connected cases 5

3. The third accused defaulted the loan instalments. Registered letters were sent to the loanees in the addresses available in the Bank records. Notices were returned with endorsement 'no such addressee'. The matter was reported to the zonal office Chennai. The Deputy General Manager of the zonal Office of the Bank directed PW2, the Deputy Manager of the Bank to conduct an enquiry. Accordingly, PW2 conducted the enquiry. Ext.P37 is the enquiry report. Falsification of the accounts, misappropriation, conspiracy, impersonation etc. were revealed out. On the basis of Ext.P37 report, PW1, the then Assistant General Manager of the Kottayam Main Branch filed Ext.P1 complaint before the CBI. PW1 in his complaint mentioned about 22 cases of misappropriation and forgery, more specifically mentioned in the annexure to the report. Ext.P1(a) is the Annexure. On the basis of Ext.P1, case as Crime No.RC.25/A/93 was registered for which Ext.P188 First Information Report was prepared. The investigation was taken over by PW39, an inspector attached to the SPE/CBI Kochi. PW39, after Crl.A. Nos.75 OF 2003 & connected cases 6 completing the investigation filed separate final reports alleging the above said offences before the trial Judge. The learned Judge took cognizance and issued process responding to which the appellants and the other accused entered appearance. Copies of the relevant records were furnished to all the accused. After hearing either side, having satisfied with a prima facie case to send the accused for trial, a charge for the said offences was framed in each case. When the charge was read over and contents explained, the accused pleaded not guilty. Hence, they were sent for trial. In Criminal M.C No.3482/2000, a petition filed by the first accused, this Court ordered joint trial of all the cases. Accordingly, all the cases were tried jointly. The evidence was recorded in C.C.No.5/1988. On the side of the prosecution PWs.1 to 39 were examined and Exts.P1 to 189 were marked. During the course of the cross examination, Exts.D1 to D6 and D8 to D12, certain portions of the CD statement of the witnesses were marked. Ext.D7, a photocopy of the letter dated 17.02.1993 sent by the Crl.A. Nos.75 OF 2003 & connected cases 7 Secretary Thiruvarp Service Co-operative Bank Limited was also marked. After closing the evidence for the prosecution the accused were questioned under Section 313(1) (b) of the Code of Criminal Procedure. The accused denied the incriminating evidence.

4. The first accused in a separate statement of defence stated that he was working as Field Officer in the Kottayam Main Branch of the State Bank of India as alleged by the prosecution and that he was in charge of the ACC loan in respect of Ward No.10 of Thiruvarpu Village and that ACC loans were under the priority sector and each branch had to attain a target and that since the loan amount was very low, there was no special guidelines or rules with regard to the procedure to be followed and that the Bank had a very liberal approach while sanctioning such loans and that the loans were sanctioned without pre-sanction inspection as was asked by the Manager of the Bank and that it was impossible to identify each and every applicant's property, since in Ward No.10 of Thiruvarpu Village there were vast Crl.A. Nos.75 OF 2003 & connected cases 8 areas extending to 3500 hectares which were water logged and that following the procedures and formalities adopted by the predecessors, the loans in dispute were recommended and that there was no conspiracy with the second accused or with any other accused.

5. The second accused in all the cases did not advance any specific defence. The third accused denied the allegation of conspiracy. No defence evidence was let in.

6. The learned Special Judge on appraisal of the evidence, in all cases, arrived at a conclusion of guilt against the 1st accused for offence u/s 13(2) r/w 13(1)(d) of PC Act. The second accused was found guilty for offence u/s 468 IPC. Accused one and two in C.C.No.5/1998 were found guilty for offence under Section 120B r/w Section 420, 466, 468 and 471 IPC and Section 13(1)(d) of the PC Act. In C.C.No.6/1988 accused 1, 2 and 3 were found guilty for offences under Section 120B r/w Sections 420, 466, 468 and 471 IPC and Section 13(1) (d) of the PC Act. The third accused was further found guilty for offence under Section 420 and 471 Crl.A. Nos.75 OF 2003 & connected cases 9 IPC. In C.C.No.7/1988 accused one and two were found guilty for offence under Section 120B r/w Section 420, 419, 466, 468 and 471 IPC and 13(2) r/w 13(1)(d) of the PC Act. In C.C.Nos.10, 11, and 12/1998 the third accused was found not guilty. Accused 1 and 2 were found guilty as in the other cases. In all other cases accused 1, 2 and 3 were found guilty for offences under Sections 120B r/w Sections 420, 419, 466, 468 and 471 IPC and under Section 13(2) r/w 13(1)

(d) of the PC Act. The third accused in all the other cases were found guilty for offences under Sections 420, 419 and 471 IPC. Accordingly, the accused were convicted for the respective offences.

7. In all the cases, for offence under Section 120B, the accused 1 and 2 are sentenced to rigorous imprisonment for one year and fine of Rs.2,000/- with a default sentence of rigorous imprisonment for a further period of two months. For offence under Section 13(2) r/w 13(1)(d) of the PC Act, in all the cases, the first accused is sentenced to rigorous imprisonment for one year and fine of Rs.1,000/- each with a Crl.A. Nos.75 OF 2003 & connected cases 10 default sentence of rigorous imprisonment for a further period of one month. In all the cases the second accused is sentenced to rigorous imprisonment for four years and a fine of Rs.2,000/- with a default sentence of rigorous imprisonment for a further period of two months for offence u/s 468 IPC. Except in C.C.Nos.5, 7, 10, 11, and 12/1988 the third accused is sentenced to rigorous imprisonment for a period of one year and a fine of Rs.1,000/- under Section 420 IPC and rigorous imprisonment for six months each for offence under Section 419 IPC and 471 IPC. Assailing the above conviction and sentence these appeals were preferred. Though conspiracy in respect of 466 IPC was also alleged, no charge was framed against any accused regarding offence under Section 466 IPC. Consequently, there is no finding also regarding conspiracy for offence under Section 466 IPC.

8. The fact that the first accused was the Assistant Manager/Field Officer employed in State Bank of India at its Main Branch, Kottayam, from 13.6.1989 to 29.6.1992 is Crl.A. Nos.75 OF 2003 & connected cases 11 admitted by the first accused as stated earlier. The evidence of PW1, the Assistant General Manager during the year 1992-1994, PW2, the Divisional Manager from June 1992 to June 1994, PW3, the cashier from December 1990 onwards, PW5, the Clerk-cum-Typist during the year 1988 to March 2000, PW21, the Chief Manager during the year 1991-1995, PW7, the Clerk, PW20, the Branch Manager and PW22, the Assistant Manager are harmonious that the first accused was working as the Assistant Manager/Field Officer in the Bank. PW35, the Chief General Manager of Chennai circle had also given evidence in support of the evidence of the above witnesses. PW35 had further deposed that he was the Officer competent to remove the first accused from service and after perusing the investigation records, he had issued Ext.P180 order according sanction to prosecute the first accused. As I mentioned earlier the status of the first accused as Field Officer is not at all disputed. So also, the allegation of the prosecution that in his official capacity, the 1st accused would come within the definition of the public Crl.A. Nos.75 OF 2003 & connected cases 12 servant under Section 2(c) of the PC Act is not disputed. Therefore, the finding of the trial Judge that the first accused was working as Assistant Manager/Field Officer in the Main Branch of the State Bank of India, Kottayam during the relevant period is based upon the above unchallenged evidence of the above witnesses. That finding requires no interference and is hereby confirmed. The learned counsel for the 1st accused didn't assail the finding of the trial court that the 1st accused would come with definition of the Public Servant as defined u/s 2(c) of the PC Act.

9. During the tenure of the first accused more than 2000 ACC loans were granted. The conspiracy, misconduct, falsification etc. alleged are only in respect of the above 15 cases. In support of the loan transaction, the Assistant General Manager during the period 1992-1994 was examined as PW1 by the prosecution. He would give evidence with respect to the documents seized. Exts. P2, P11, P20, P26, P36, P45, P54, P65, P75, P83, P91, P100, P108, P117 and P127 respectively are the control Crl.A. Nos.75 OF 2003 & connected cases 13 card/ledger sheet maintained regarding the loan transactions in all the above cases. Exts.P12, 3, 21, 27, 37, 46, 58, 66, 76, 84, 92, 101, 109, 118, and 128 respectively are the loan applications submitted by the third accused in all the cases. The evidence of PW1 would further show that the loan amount of Rs.10,000/- was disbursed by two instalments on 6.11.1990 and 26.11.1990 in C.C.No.5/1998. In C.C.No.6/1998 the loan amount of Rs.10,000/- was disbursed by two instalments on 15.11.1990 and 26.11.1990. In C.C.No.7/1998 the loan amount was disbursed by two instalments on 12.12.1990 and 20.12.1990. In C.C.No.8/1998 the loan amount was disbursed on 2.1.1991 and 17.1.1991. In C.C.No.9/1993 the loan amount was disbursed on 11.2.1991 and 2.3.1991. In C.C.No.10/1998, the loan amount was disbursed on 11.2.1991 and 22.2.1991. In C.C.No.11/1998 the loan amount was disbursed on 5.8.1991 and 7.9.1991. In C.C.No.12/1998, the loan amount was disbursed on 13.8.1991 and 22.10.1991. In C.C.No.13/1998, the Crl.A. Nos.75 OF 2003 & connected cases 14 disbursements were made on 18.12.1992 and 28.10.1991. In C.C.No.14/1998, the disbursements were made on 18.9.1991 and 28.10.1991. In C.C.No.15/1998, the disbursements were made on 20.9.1991 and 28.10.1991. In C.C.No.16/1998 the disbursements were made on 26.09.1991 and 11.11.1991. In C.C.No.17/1998 the loan amount was disbursed on 1.10.1991 and 9.11.1991. In C.C.No.18/1998 the disbursements were made on 26.11.1991 and 10.12.1991. In C.C.No.19/1998 the disbursements were made on 3.12.1991 and 17.12.1991. All the disbursals were recorded in the control card cum ledger sheet referred earlier. The receipts of the amounts were also not disputed.

10. In C.C.No.5/1998, the third accused is the father of the 2nd accused. In C.C.No.5/1998 and C.C.No.6/1998, there is no impersonation, but, the third accused had no paddy field to avail loan for the agricultural purposes. But loan was applied and availed as if they had agricultural land. To support the claim, Tax Receipts, Possession Certificates and No Due Certificates were forged. In all the other cases the Crl.A. Nos.75 OF 2003 & connected cases 15 third accused impersonated as fictitious persons and availed loan. The third accused Raghavan in C.C.No.7/1988 was impersonated as Raman, S/o.Ayyappan, Vadakkepparambil House. In C.C.No.8/1988, the third accused Gopi, S/o.Krishnan was impersonated as G.Rajappan, S/o.Gopalan. In C.C.No.9/1998, the third accused Rajamma Babu was impersonated as Rajamma Raju. In C.C.No.10/1998, the third accused E.R.Shaji was impersonated as C.Raju, S/o.Chellappan, Puthanparambil, Thiruvarpu. In C.C.11/1998, the third accused Prabhakaran, S/o.Sivaraman was impersonated as Divakaran, S/o.Velayudhan, Arakkal Veedu, Thiruvarpu, Kottayam. In C.C.No.12/1998, the third accused M.K.Raju, S/o.Kumaran was impersonated as Madhavan Soman S/o. Madhavan, Kizhakkedath House, Thiruvarpu. In C.C.No13/1998, the third accused K.V.Gopalan, S/o.Raghavan, Nedumparambil was impersonated as P.R.Raju, S/o.Kesavan, Puthiyachirayil veedu, Thiruvarpu. In C.C.No.14/1998, third accused M.P.Sarada, W/o.Somarajan, Annai, Velloor.P.O was impersonated as K.M.Indira, Crl.A. Nos.75 OF 2003 & connected cases 16 D/o.Madhavan Kochuparambil House, Thiruvarpu. In C.C.No.15/1998, the third accused E.R.Shaila, W/o.Gopalan, Neduparambil veedu, Velloor.P.O., Pampady was impersonated as Anila Shajimon, W/o.Shajimon, Pathinanchilchira veedu, Thiruvarp. In C.C.No.16/1998, the third accused M.K.Rajan, S/o.Kesavan was impersonated as Vasudevan, S/o.Kuttappan, Pazhachirayil house, Thiruvarp. In C.C.17/1998, third accused N.Ponnappan was impersonated as A.Hamsa, S/o.Aboobecker, Amarathu House, Thiruvarpu. In C.C.No.18/1998, the third accused N.K.Raju, S/o.Kuttappan, Neduparambil veedu, Velloor, Pampady was impersonated as Shajan Varghese, S/o.Yohannan Itty, Ezhacheriyil veedu, Thiruvarp. In C.C.No.19/1998, the third accused A.K.Ponnappan, S/o.Narayanan, Thalakkulam, Pathaputtam P.O, was impersonated as E.T.Sunny Thomas, S/o.Thomas, Anpathil veedu, Thiruvarp.

11. The respective control card cum ledger sheet in C.C.No.7/1998 to 19/1998 would show that it bears the Crl.A. Nos.75 OF 2003 & connected cases 17 photograph of the third accused. The loan applications also contain the photographs. The photographs in the loan applications and the control card cum ledger sheets would show that the loan applications were made by the 3rd accused in C.C.No.7/1998 to 19/1998, not in their names, but in the names of persons mentioned in the earlier paragraph. The address given are also not of the 3rd accused. In all the control card cum ledger sheets there are specimen signatures/thumb impressions of the third accused out of which the third accused in C.C.No.7/1988 to 19/1998 affixed their specimen signatures/thump impressions as if the fictitious persons. Each file would contain Inspection Card, Tax Receipt, Possession Certificate and No Due Certificate. Tax Receipts and Possession Certificates are as if issued from the Village Office, Thiruvarp. No Due Certificates are as if issued from the Service Co-operative Society. All the files contain conditions of the loan under the signature of the 3rd accused and simple mortgage deed executed by the third accused. In the inspection card also, there is a Crl.A. Nos.75 OF 2003 & connected cases 18 photograph of the third accused. Look at the photographs in the loan applications, control card cum ledger sheets and inspection cards and a reading of the names and addresses of the loan applicants in comparison with the names and addresses of the 3rd accused in C.C.Nos.7 to 19/1998 would convincingly establish the impersonation. The 3rd accused in C.C.No.7/1998 to 19/1998 pretended to be persons with different names and addresses, applied for loan and obtained the loan. They acknowledged the amount as if persons with different names and addresses in the loan applications and control card cum ledger sheets.

12. Going by the impugned judgment, it is seen that the learned Special Judge had discussed every document produced in each case separately. Since the offence alleged in all cases are identical and documents are of same nature, I do not think that I had to repeat the same exercise separately. Common discussion would suffice. In all the cases Possession Certificates, Tax Receipts (except in C.C.No.5/1998) and No Due Certificates were produced. The Crl.A. Nos.75 OF 2003 & connected cases 19 question is whether there is forgery and the forged documents were used as genuine documents for availing loans and there is cheating by personation as alleged. Forgery alleged, as mentioned earlier is in respect of the Tax Receipts, Possession Certificates and No Due Certificates. To prove the forgery in respect of the Tax Receipts and the Possession Certificates, prosecution had relied upon the testimonies of Pws.6 and 12 to 16. PW6 was the Village Officer, Thiruvarpu from 14.06.1994 to 21.1.1995. Exts.P9, P19, P25, P34, P42, P54, P63, P73, P82, P90, P98, P107, P116, P125 and P135 are the Possession Certificates. Exts. P8, P24, P33, P41, P51, P62, P72, P81, P89, P97, P106, P115, P124 and P134 are the Tax Receipts. Referring to those documents PW6 would depose that those Possession Certificates and Tax Receipts were not issued from the Thiruvarpu Village Office and were not signed by the then Village Officer. PW6 mentioned about the signature after referring to the signatures of his predecessors contained in the official records. It was also deposed by PW6 that in the Crl.A. Nos.75 OF 2003 & connected cases 20 tax receipts, the round seal affixed is that of the Panachikkadu Village Office and not that of the Thiruvarpu Village Office. It is not disputed that properties mentioned in the Possession Certificates and the Tax Receipts were stated to be within the Thiruvarpu Village Office. PW6 had also proved the specimen impression of the seal of the Village Office, Thiruvarpu as well as the designation seal of the Village Officer. Ext.143 series are the specimen impression of the seals. A look at the specimen impressions of the seal of the Village Office as well as the designation seal of the Village Officer affixed in the Possession Certificates and the Tax Receipts would show that both the seals of the Village Office and the Village Officer are entirely different. PW12, the then Village Officer had deposed that Tax Receipts Exts.P41, P51, P62, P72, P81, P89, P97, P106, P115, P124 and P134 would bear the date when PW12 was the Village Officer. Exts.P8, P24 and P33 Tax Receipts in C.C.7/1998 and 8/1998 bear the dates when C.M.Joseph was the Village Officer. Exts.P34, P42, P52, P63, P73, P82, P90, P98, P107, Crl.A. Nos.75 OF 2003 & connected cases 21 P116, P125 and P135 Possession Certificates would bear the dates when PW12 was the Village Officer. Exts.P9, P19, and P25 Possession Certificates would bear the dates when C.M.Joseph was the Village Officer. PW12 had deposed that the signature contained in those Tax Receipts and Possession Certificates were not put by either PW12 or by C.M.Joseph. PW12 had also deposed that the designation seal of the Village Officer affixed on the Possession Certificate are not that of the Village Officer. Though PW12 was subjected to searching of cross examination no material was disclosed to disbelieve him.

13. PW13 was the Village Officer, Panachikkadu Village from 1987 to 1991. He was examined to prove that blank Tax Receipt forms bearing numbers 76 to 92 from book No.314 were missed from his office and it was brought to the notice on 9.11.1990. PW13 had deposed that Exts.P8, P24, P33, P41, P51, P62, P72, P81, P89, P97, P106, P115, P124 and P134 are prepared on the stolen blank Receipts forms. He had also deposed that the stolen blank Tax Crl.A. Nos.75 OF 2003 & connected cases 22 Receipts contained the seal of the office and that the signatures in those Tax Receipts are neither that of the Village Officer, Panachikkadu nor that of the Village Assistant. PW15, the Villageman, Panachikkadu and PW16, the Village Assistant, Panachikkadu were also examined to prove the missing of blank tax receipts from the Village Office, Panachikkadu. Evidence of PW13, 15 and 16 regarding the missing of the receipts from the Village Office also remains unimpeached despite searching cross examination. The round seal found on the Tax Receipts would show that it was that of the Village Office, Panachikkadu. The 3rd accused has no case that they had any property in Panachikkadu village or that they paid any tax in the village office, Panachikkadu and legally obtained the receipts in dispute. PWs.6 and 12, as mentioned earlier had deposed that the seal affixed over the Tax Receipts is that of the village Office, Panachikkad. Therefore, by the evidence of PWs.6 ,12, 13, 15 and 16 it can be safely concluded that the Tax Receipts and Possession Certificates Crl.A. Nos.75 OF 2003 & connected cases 23 in dispute were not issued by the Village Officer, Thiruvarpu or from the village Officer Thiruvarpu. Irresistible conclusion that could be legitimately arrived is that those documents are forged. The tax receipts were forged after stealthily obtaining blank receipt forms from the Village Office, Panachikkadu.

14. PW14, the Villageman, Thiruvarpu for the period 17.7.1997 to 19.91995 had deposed that the Officer of the Bank went to the Village Office and enquired about the particulars of the property. He verified the records and stated that the persons referred had no property at all in Thiruvarpu village. His evidence is very vague in the sense that it did not mention about the name of the persons in respect of whom he verified the records in the Village Office. However, that omission is not significant since none of the 3rd accused in any case has got a plea that they had any property as mentioned in the Tax Receipts or Possession Certificates. That is the very case of the prosecution also.

15. The evidence of PW1 would show that for the Crl.A. Nos.75 OF 2003 & connected cases 24 Possession Certificates and No Due Certificates from the concerned Co-operative Bank, blank forms would be issued from the bank and the party had to apply for such certificate from the Village Office and the Co-operative Bank. PW6, the Village Officer had deposed about the procedure for issuing the Possession Certificate. According to PW6, in the normal course, Possession Certificate would be issued only after verifying the Ration Card, Tax Receipts and the Title Deed. Look at the Tax Receipts and Possession Certificates would show that the blank space were duly filled up. In C.C.No.5/1998, it is stated that the third accused had 3 acres of property. In C.C.No.6/1998, the documents mention that the third accused had 4.8 acres of land in Sy. No.280/10/B. In C.C.No. 7/1998, the claim is that the third accused had 7.30 acres of property in Sy. No.260/1B. In C.C.8/1998 the loan is in respect of 5.13 acres of property comprised in Sy. No.260/10-B. In C.C.9/1998, the loan is in respect of 5.73 acres of property comprised in Sy. No.285/10/B. In C.C.10/1998, the loan is in respect of 6.15 acres of property Crl.A. Nos.75 OF 2003 & connected cases 25 comprised in Survey No.260/1. In C.C.11/1998, the loan is in respect of 7.04 acres of property comprised in Sy. No.283/10/B. In C.C.12/1998, the loan is in respect of 6.73 acres of property comprised in Sy.No.271/10/B. In C.C.13/1998, the loan is in respect of 4.80 acres of property comprised in Survey No.253/10/B. In C.C.14/1998, the loan is in respect of 4 acres of property comprised in Survey No.335/C. In C.C.15/1998, the loan is in respect of 3.80 acres of property comprised in Sy. No.338/10-B. In C.C.16/1998, the loan is in respect of 4.04 acres of property comprised in Sy. No.270/1/C. In C.C.17/1998, the loan is in respect of 6.40 acres of property comprised in Survey No.260/1/B. In C.C.18/1998, the loan is in respect of 5 acres of property comprised in Sy. No.313/1/B. In C.C.19/1998, the loan is in respect of 5.5 acres of property comprised in Sy. No.272/1/B. There is not even a suggestion that the third accused owned any inch of property in the above survey numbers. Therefore, it can be safely concluded that the third accused in all the cases forged Tax Receipts and Crl.A. Nos.75 OF 2003 & connected cases 26 Possession Certificates as if they had vast extent of land in the survey numbers mentioned earlier with intent to produce before the State Bank of India as genuine documents for availing loan.

16. Regarding the forgery in respect of the certificates issued from the Co-operative Bank the prosecution would rely upon the testimonies of PW.7 and PW.31. PW.7 is a clerk attached to Thiruvarppu Co-operative Bank. PW7 would depose that none of the no dues certificate produced in these cases and marked Ext.P9(a), P19(a), P25(a), P34(a), P42(a), P52(a), P63(a), P73(a), P82(a), P90(a), P98(a), P107

(a), P116(a), P125(a) and P135(a) was issued from the Co- operative Bank and none bears the signature of the Secretary or the seal of the Co-operative Bank. PW7 had further deposed that the Secretary of the Co-operative Bank at that time was one K.R.Bhaskaran Nair and he had gone abroad at the time when PW7 was examined. PW7 would further depose that he is acquainted with the signatures of Bhaskaran Nair and that the signatures contained in those Crl.A. Nos.75 OF 2003 & connected cases 27 certificates as that of the Secretary are not the signatures of the Secretary K.R.Braskaran Nair.

17. PW.31 would depose that he was the Board member of the Thiruvarppu Village Service Co-operative Bank from 1983 to 1996 and that from 1994 to 1995 he was the President of the Bank and he was acquainted with the seal of the Bank and signature of the Secretary. He would depose that the seal found on Exts.P9(a), P19(a), P25(a), P34(a), P42(a), P52(a), P63(a), P73(a) P82(a), P90(a), P98(a), P107(a), P116(a), P125(a) and P135(a) is not that of the Bank and that the signature found on the certificates as that of the Secretary is not that of the Secretary of the Bank. In those certificates, the name of the signatory is discernible and could be read as Sarasamma. PW31 would further depose that the Bank had no Secretary by name Sarasamma or Ponnamma. He had also deposed that Ext.P10 is the specimen impression of the seal of the Co- operative Bank.

18. The evidence of PWs.7 and 31 regarding the Crl.A. Nos.75 OF 2003 & connected cases 28 signature of the Secretary and seal of the Bank could not be shaken in cross examination. Going by the evidence of PWs.7 and 31, I find that the conclusion of the trial court that the above certificates mentioned in the above paragraph are neither signed by the Secretary nor bear the seal of the Co-operative Bank. A look at Ext.P10, the specimen impression of the seal contained in the above certificate would show that the original seal is entirely different from the one affixed on the above certificates. Therefore, as found by the trial court, it is evident that the No Due Certificates produced in support of the loan applications as that of the Thiruvarpu Village Service Co-operative Bank are not the original certificates but are forged certificates.

19. Regarding the impersonation, the prosecution would rely upon the evidence of PWs.11, 17, 26, 27, 28, 29, 32 and 33. PW11 had deposed that he was the Postman in the Post Office at Thiruvarpu Village from 1983 to 1996. He would depose that the Photograph found in Ext.P54, the control card cum ledger sheet in C.C.No.11/1998 is that of Crl.A. Nos.75 OF 2003 & connected cases 29 the accused T.S.Prabhakaran, Arakkaparambil. He is the brother-in-law of the second accused. But in Ext.P54 the name is shown as Divakaran. PW11 had deposed that the address shown in Ext.P54 is not that of the third accused. It is the further evidence of PW11 that the photograph affixed in Ext.P83, the control card/ledger sheet in C.C.No.13/1998 is not familiar to him. The name of the loanee is K.M.Indira. According to PW11, though there is a house in the address given in Ext.P83, in that house there is no person by name Indira. Third accused Sarada was impersonated as Indira. It is not in dispute that the photograph contained therein and the name and address are not that of the third accused Indira. PW11 would further depose that the persons in the photographs affixed on Exts.P91, the control card/ledger sheet in C.C.No.15/1998, Ext.P100 the control card/ledger sheet in C.C.16/1998 and Ext.P108 the control card/ledger sheet in C.C.17/1998 are not known to PW11. However, he would depose there is no such address in Thiruvarpu village as shown in Exts.91, P100 and P108. So it is evident that Crl.A. Nos.75 OF 2003 & connected cases 30 there is no such persons with the names and addresses as that of the third accused in C.C.Nos.15/1998, 16/1998 and 17/1998.

20. PW11 would further depose that though there is an address as shown in Ext.P117, the control card/ledger sheet in C.C.No.18/1998, no person in the photograph is residing in the above address. That evidence of PW11 would show that the third accused in C.C.No.18/1998 was also impersonated. PW11 would further depose that Exts. P43, P64, P74, P126, the unserved registered letters in the address of the third accused in C.C.Nos.9, 11, 12 and 18/1998 were obtained to him for delivery to the addressee shown there. The registered letters were returned un-delivered with due endorsement since such addressees were not residing within the area limit of the Post Office. That evidence of PW11 also would show that there was impersonation of the loanees by the third accused in C.C.Nos.9, 11, 12, and in 18/1998.

21. PW17, a Nursing Assistant attached to the Kurichi Homeo Hospital would depose that the photograph of the Crl.A. Nos.75 OF 2003 & connected cases 31 loanee in Ext.P36 control card/ledger sheet in C.CNo.9/1998 is that of Rajamma who is the wife of her brother P.K.Baburajan. But the name and address of the loanee are shown as Rajamma Raju, W/o.Raju, Puthanparambil veedu, Thiruvarpu. The evidence of PW17 on that respect remains unimpeached. That would show that the third accused Rajamma, W/o.P.K.Babu in C.C No.9/1998 was impersonated as Rajamma Raju, W/o.Raju.

22. PW26 would depose that he was working as Postman in Puthupally Post Office since 1987. He had deposed that the photograph affixed in Ext.P100, the control card/ledger sheet in C.C.No,16/1998 is that of the third accused M.K.Rajan, Akkamkunnu house, Puthupally P.O. Whereas the name of the loanee is shown as Vasudevan S/o.Kuttappan. The evidence of PW26 was not at all impeached in cross examination. The evidence of PW26 would show that the third accused M.K.Rajan, S/o.Kesavan was impersonated as Vasudevan, S/o.Kuttappan.

23. PW27 would depose that he was working as Extra Crl.A. Nos.75 OF 2003 & connected cases 32 Departmental Delivery Agent at Velloor, Pambadi Post Office and that the photograph contained in Ext.P75, the control card/ledger sheet in C.C.13/1998 is that of the third accused Gopalan, Neduparambil, Velloor, Pambadi. Ext.P75 would show that he was impersonated as one P.K.Raju and applied for loan. PW27 would further depose that the third accused in C.C.No.13/1998 is the husband of Shaila who is the third accused in CC.No.15/1998. PW27 would further depose that the photograph in Ext.P91 control card/ledger sheet in C.C.15/1998 is that of Shaila who is the wife of Gopalan, the 3rd accused in C.C.No.13/1998. Whereas Ext.P91 would show that Shaila, the third accused in C.C.15/1998 was impersonated as Anila Raju and applied for loan. PW27 would further depose that the photograph shown in Ext.P83, the control card/ledger sheet in C.C.14/1998 is that of the third accused Sarada W/o. Somarajan. But Ext.P83 with connected loan application would show that the third accused Sarada in C.C.No.14/1998 was impersonated as Indira and applied for loan. The further evidence of PW27 Crl.A. Nos.75 OF 2003 & connected cases 33 would show that the photographs shown in Exts.P117 and P127, the control card/ledger sheets in C.C.Nos.18 and 19/1998 are that of the third accused N.K.Raju and A.K.Ponnappan respectively. The control card/ledger sheet along with the loan application would show that the third accused in C.C.Nos.18 and 19/1998 were impersonated as Shajan Varghese and Sanny Thomas. The evidence of PW27 also would show that the third accused in C.C.Nos.13, 15, 18,and 19/1998 are his neighbours and he is well acquainted with the third accused. There is no reason to disbelieve PW27. Exts.P75, 83, 91, 117 and 127 would show that third accused were impersonated in different names as alleged by the prosecution. The finding of the trial court on that aspect is absolutely correct.

24. PW28 would depose that he was working as Extra Departmental Delivery Agent for the last 11 years at the South Post Office chengala. Referring to Exts.P2, P20, P40 and P49, the control card/ledger sheets and loan applications in C.C.Nos.6, 7, 9, and 10/1998, he would Crl.A. Nos.75 OF 2003 & connected cases 34 depose that the photographs shown in the control card/ledger sheets are that of the third accused in the respective cases. The control cards/along with applications for loan in C.C. Nos. 7, 9 and 10/1998 would show that the third accused Raghavan, Rajamma Babu and Shaji were impersonated as Rajappan, Rajamma Raju and C.Raju respectively.

25. PW29 would depose that from 4.4.1981 to 23.3.2001, he was working as Postmaster in Pambadi Velloor Post Office. Referring to the photographs contained in the control card/ledger sheet in C.C.Nos.13, 14, 15 and 18/1998, he would depose that the photographs affixed therein are that of the third accused in the respective cases. That evidence of PW29 was also not impeached in cross examination. The evidence of PW29 with loan applications and connected documents would show that the third accused in C.C.No.13, 14, 15, and 18/1998 Gopalan, Sarada, Shaila and Raju were impersonated as P.K.Raju, K.M.Indira, Anila shaji and Sajan Varghese respectively. Crl.A. Nos.75 OF 2003 & connected cases 35

26. PW32, would depose that he is the husband of the third accused Rajamma in CC.No.9/1998 and that the second accused is a relative and that officials from the Bank visited his house enquiring about his wife Rajamma and understood that she had availed some loan from the bank. According to him the second accused made his wife believe that if photographs were given he would arrange nonrefundable agricultural loan and believing the version of the second accused his wife had given her photographs. The name of PW32 is Babu. The evidence of PW32 would also show that his wife Rajamma Babu was impersonated as Rajamma Raju and availed the loan alleged in C.C.No.9/1998.

27. PW33 would depose that he has been working as Extra Departmental Delivery Agent in Vadavathoor Post Office for the last 22 years. He would also depose that the photograph shown in Ext.P26 control card/ledger sheet in C.C.8/1998 is that of K.K.Gopi, Kuttikkattu, Vadavathoor P.O who is a Barber by profession. The evidence of PW 33 was not at all challenged in cross examination. Ext.P26 along Crl.A. Nos.75 OF 2003 & connected cases 36 with the application for loan and other connected documents would show that the third accused Gopi in C.C. No.8/1988 was impersonated as one Rajappan.

28. The evidence of PW11, 17, 26, 27, 28, 29, 32 and 33 discussed above would show that the third accused in C.C.7 to 19/1998 impersonated in different names and addresses and applied for ACC loans from the State Bank of India as alleged by the prosecution. The finding of the trial court on that respect is based upon cogent evidence and require no interference. So the conviction for offence under Section 419 IPC in the above cases is based upon cogent evidence. The undisputed evidence of PWs.3, 19, 25, 23, 24, and 37 coupled with the documents relating to the ACC loans would show that the loan was availed by the third accused in the above case pretending to be fictitious persons as mentioned above.

29. In support of the conspiracy, impersonation and forgery the prosecution would also rely upon the evidence of PWs.8 and 9, two seal makers and the evidence of PW10, Crl.A. Nos.75 OF 2003 & connected cases 37 the photographer along with the report of PW36 and PW 38, the Fingerprint Expert and Handwriting Expert. PW8 had deposed that he had been running an establishment by name Jose Mathew Industries at Kottayyam and had been making rubber stamps/seal. Referring to Exts.P9, P19, P25, P34, P42, P52, P63, P73, P82, P90, P98, P107, P116, P125 and P135, he would depose that designation seal of the Village Officer affixed in those documents were the impression of a rubber stamp made by him at the request of the second accused and that the seal made by him was given to the second accused.

30. The evidence of PW8 on that aspect remains unimpeached. Of course, the learned counsel appearing for the accused has got a case that the evidence of PW8 is not believable for the reason that such seals can be made with identical type letter moulds obtained from Madras by any other person. True, in this regard, the witness had given an affirmative answer in cross examination. But going by the entire evidence of PW8, who was subjected to a very lengthy Crl.A. Nos.75 OF 2003 & connected cases 38 cross examination, I find little reason to come to a conclusion that PW8 has got any axe to grind against the 2nd accused so as to implicate the 2nd accused with an allegation of forgery. Nothing revealed in cross examination would show that PW8 is not an independent witness or that PW8 was subjected to any tutoring or other methods to disbelieve his evidence. Rather than the possibility of any other person manufacturing a seal, what is relevant is that the 2nd accused had got such a seal manufactured through PW8 and the impressions in dispute are with that seal. The evidence of PW8 is convincing. Therefore, I find that the learned trial Judge had correctly relied upon the evidence of PW8 that the designation seal of the Village Officer was got manufactured by the 2nd accused, obviously with an intention to commit forgery.

31. PW9 would depose that he was running an establishment by name Joys Enterprises at Sasthri road, Kottayam and that he was manufacturing rubber seals. Referring to the seal affixed on Exts.P9(a), P19(a), P25(a), Crl.A. Nos.75 OF 2003 & connected cases 39 P34(a), P42(a), P52(a), P63(a), P73(a), P82(a), P90(a), P98

(a), P107(a), P116(a), P125(a) and P135(a) PW9 would depose that the impressions of the seal are that of a rubber stamp made by him at the instance of the 2nd accused and it was handed over to the 2nd accused. Though PW9 was also subjected to a very lengthy and searching cross examination there is no material disclosed to show that this witness has got any axe to grind against the 2nd accused to implicate the 2nd accused with an offence of forgery. Though the possibility for manufacturing a seal identical to the one affixed in the above documents by any other person cannot be ruled out it remains a proved fact that the 2nd accused had got such a seal manufactured by PW9. Having due regard to the entire evidence on record, I find no reason to disbelieve this witness. I further find that the learned trial Judge had correctly analysed the evidence on record and rightly believed PW9 regarding the manufacturing of the seal at the instance of the 2nd accused. Ext.P10 coupled with the evidence of PWs7 and 31 would show that the seal affixed in Crl.A. Nos.75 OF 2003 & connected cases 40 the above No Dues Certificates alleged to be issued from the Thiruvarpu Village Service Co-operative bank is not that of the bank. Whereas the impressions of the seal are that of the seal made by PW9 at the instance of the 2nd accused.

32. As regards the seal of the Village Office found on the tax receipts in all the cases it is very evident even by naked eye that the seal is that of the Village Office, Panachikkad. I had earlier mentioned about the evidence of PWs6 and 12 regarding the seal of the Village Office. PW12, the then Village Officer and PW6 the successor had given evidence that the seal affixed on the tax receipts is not that of the Village Office, Thiruvarpu. So also, they had given evidence that the designation seal of the Village Officer in the possession certificate is not that of the then Village Officer. The evidence of PWs 13, 15 and 16 would show that the tax receipts produced in the case were the blank receipts stolen from the Panachikkad Village Office on or before 9.11.1990 and those tax receipts were forged as if the tax receipts issued from the Thiruvarpu Village Office. Crl.A. Nos.75 OF 2003 & connected cases 41

33. In support of the case of the prosecution that in pursuance to the criminal conspiracy the 2nd accused forged the Tax Receipts and Possession Certificate from the Thiruvarpu Village Office and No Dues Certificate from the Thiruvarpu Village Co-operative Bank, the prosecution would allege that the handwritings in the Tax Receipts and Possession Certificate as well as the signature contained in the no dues certificate are made by the 2nd accused.

34. PW38 would depose that he was the Government Examiner of Questioned Documents, working at Simla and in 1995, he was working as Deputy Government Examiner of Questioned Documents at Hyderabad and that he along with the then Government Examiner had independently examined the writings in the Tax Receipts, Possession Certificate, and No Dues Certificates. He compared the writings in the Tax Receipts, the Possession Certificates and No Due Certificates with reference to the specimen writings and signatures of the 2nd accused sent to him and that Ext.P184 is his opinion and that Ext.P186 is the reasons in Crl.A. Nos.75 OF 2003 & connected cases 42 support of the opinion. He would depose that the disputed writings in Exts.P8, P9, P19, P24, P25, P33, P34, P41, P42, P51, P52, P62, P63, P72, P73, P81, P82, P89, P90, P97, P98, P106, P107, P115, P116, P124, P125, P134 and P138 were compared with the specimen writings of the 2nd accused and found that the writings tally with it. He had also examined the specimen impression of the seal of the Village Office, the designation seal of the Village Officer and the seal of the Thiruvarpu Village Service Co-operative Bank with reference to the seals found on the disputed documents and found that the specimen seal of the Village Office, designation seal of the Village Officer and that of the Thiruvarpu Village co- operative Bank Ltd. do not tally with the impression of the seal affixed on the Tax Receipts, Possession Certificates and No Dues Certificates. Though Ext.P186 was marked as the reasons to arrive at an opinion, the reasons stated therein were not deposed by PW38. Referring to a decision reported in Vijayachandran v. Superintendent of Police [2008(3) KLT 307], the learned counsel appearing for the 2nd accused Crl.A. Nos.75 OF 2003 & connected cases 43 would submit that since the witness had not given evidence regarding the reasons to arrive at a conclusion no reliance can be given to the testimony of PW38 or to Ext.P184 opinion. At paragraph 46 in Vijayachandran's case, it was held by the learned Judge as follows:

"But the handwriting expert like PW29 does not fall under Section 293 Cr.P.C, and the report made by him cannot be admitted in evidence in the absence of the deposition given by such expert on the relevant facts."

Going by the above decision and the Sections 292 and 293 Cr.P.C, it is seen that first of all this witness would not come under Section 293. Whereas he would come under the category of witnesses referred to in Section 292. The learned Judge also had not taken note of the amendment made by Act 25 of 2005. Therefore, to have correct appraisal it would appropriate to read Section 292 Cr.P.C.

35. Section 292 of the Cr.P.C. as now amended reads as follows:

"Evidence of officers of the Mint:- (1) Any document purporting to be a report under the hand of any such gazetted officer of the Mint [Ins. By Act 25 of 2005, sec.24(w.e.f.23.6.2006) officer of any Mint or of any Note Printing Press or of any Security Printing Press (including the officer of the Controller of Crl.A. Nos.75 OF 2003 & connected cases 44 Stamps and Stationery) or of any Forensic Department or Division of Forensic Science Laboratory or any Government Examiner of Questioned Documents or any State Examiner of Questioned Documents, as the case may be,] as the Central Government may, by notification, specify in this behalf, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this code, although such officer is not called as a witness.

(2) The Court may, if it thinks fit, summon and examine any such officer as to the subject matter of this report:

Provided that no such officer shall be summoned to produce any records on which the report is based.

36. By virtue of Sec.292 Cr.P.C. as amended, a report of any Government Examiner of Questioned Documents can be used in evidence in any enquiry, trial or other proceedings although such officer is not called as a witness. Sri.John S.Ralph, the learned counsel appearing for the 2nd accused, argued that the amendment effected by Act 25 of 2005 would come into force only with effect from 23.6.2006. Hence, the amendment has no application in the trial of the case, which was over before the amendment coming into effect. It was further submitted that it is an expost facto Crl.A. Nos.75 OF 2003 & connected cases 45 legislation affecting the trial of a criminal case and hence it is hit by Article 20(1) of the Constitution of India. As against the said argument, the learned Public Prosecutor appearing for the CBI submitted that the amendment being one of a procedural law and not creating any offence or penal provision, it would go back to the date of the Code of Criminal Procedure. I find merit in the submission. In support of the argument, the learned Public Prosecutor had given reliance to the decision in G.P. Nayyar v. State (Delhi Administration) reported in AIR 79 SC 602. At paragraph 7 it is held as follows:

"A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved. Thus the appellant cannot object to a procedure different from what obtained at the time of the commission of the offence. The offence that was committed was when Section 5(3) was in force and by Act 16 of 1967 the procedure is revived."

37. Having considered the rival contentions, I find that the amendment brought to Section 292 and 293 of the Code of Criminal Procedure by Act 25 of 2005 is only regarding the Crl.A. Nos.75 OF 2003 & connected cases 46 procedure to be adopted in a trial which neither affects any constitutional right or creates any other offence. I find no reason not to apply the ratio of the above decision. In the above circumstance, I find that even without examining the expert, his report and the reasons thereon can be used in evidence. Adding to the above, here in this case the expert was examined and he had given evidence regarding his finding on examination of the document. The reasons for arriving at such a conclusion is stated in Ext.P186. The defence was given an opportunity to cross examine the witness with reference to the report and the reasons for arriving at such a conclusion. Going by the cross examination of the witnesses, I find that in fact the reasons basing upon which the conclusion was arrived was also challenged in cross examination. So, this is a case where the accused has got opportunity to cross examine the expert and he had availed the opportunity and cross examined the expert with reference to the reasons given by the expert to arrive at a conclusion. Therefore, the omission of the Crl.A. Nos.75 OF 2003 & connected cases 47 prosecution to make PW38 depose the reasons for arriving at the opinion is not at all fatal. This court in appeal can look into the reasons, especially in the light of Section 292 Cr.P.C. as now amended.

38. I had gone through the reasons given by PW38 to arrive at a conclusion. I had also perused the specimen handwritings as well as the questioned writings. Similarity is evident. I find that the opinion expressed by PW38 is well supported by sound reasons. The 2nd accused has no suggestion to PW38 that the disputed writings are not that of the 2nd accused. In fact he had not put forward a specific defence as I mentioned earlier. The result is that the evidence of PW38 remains unimpeached. There is no good reason to reject the evidence of PW38 or Ext.P184 opinion.

39. PW10 had deposed that he had been running a studio by name Thara Studio at Kottayam. The photographs on the applications for loan as well as the control card/ledger sheet in all the cases were shown to PW10. He would depose that the photographs in CC 5, 7 to 15, 17, 18 and Crl.A. Nos.75 OF 2003 & connected cases 48 19/98 were taken by him as requested by the 2nd accused for which the 2nd accused had paid the charges and the photos were entrusted to the 2nd accused. Going by the cross examination of PW10, I find little reason to disbelieve the evidence of PW10. There is no suggestion to PW10 that PW10 had got any animosity against the 2nd accused to implicate the 2nd accused with a crime like this. There is also no suggestion for the defence that PW10 is not an independent witness or that he was tutored by the investigating officer or by any other interested persons. The very case of the 3rd accused in CC 9/98 and 14/98 is that they were given some papers by the 2nd accused and got it signed. The 3rd accused in CC 6/98 stated that the 2nd accused apprised that if a photograph was given, the 3rd accused would be provided a non refundable agricultural loan and he had given certain papers signed.

40. PW21, then Chief Manager (Personal Banking Division) would depose that she was working as Deputy General Manager in the department of Distance learning at Crl.A. Nos.75 OF 2003 & connected cases 49 the Staff College of the State Bank of India at Hyderabad and that whenever loans are granted in favour of an illiterate person a declaration form would be obtained declaring that the contents of the documents were apprised to them in the presence of an independent witness and that Exts.P144 to 149 are such statements obtained from the lonees in CC. 13, 14, 17,19, 8 and 11/98 respectively. Those certificates were made by the 1st accused in the presence of the 2nd accused, who had affixed his signature in token of witnessing the contents of the documents translated to the loanees. Signature of the 2nd accused in Exts.P144 to P149 were also subjected to examination by PW38 and he had certified that the signatures tally with the specimen signature of the 2nd accused, the signatory, as a witness in those documents. That evidence also remains unchallenged. The evidence of PW21 would show that the 3rd accused in the above cases were identified by the 2nd accused as the loanees in different names and addresses. The conspiracy and involvement of the 2nd accused in impersonating the 3rd accused in the Crl.A. Nos.75 OF 2003 & connected cases 50 cases stated above are crystal clear with no room for any doubt.

41. As I stated earlier, PW38 after comparing the seal of the Village Officer, designation seal of the Village Officer and the seal of the Co-operative Bank affixed on the Tax Receipts, Possession Certificates and No Due Certificates with the specimen impression of the seal of the Village Office, Village Officer and seal of the Bank, had certified that the seals affixed in the documents in dispute do not tally with the specimen impressions of the seals. I had also mentioned that even by naked eye the difference is evident. The evidence of PWs 8 and 9 would show that those seals were made by them at the instance of the 2nd accused and handed over to the 2nd accused. If the evidence of PW38 is analysed in the background of the above evidences of PWs 8, 9, 10, 6, 12, 13, 14, 15, 16 and 21. I find no good reason at all to reject the evidence of the PW38 and Ext.P184 report.

42. Relying upon the decisions reported in Magan Crl.A. Nos.75 OF 2003 & connected cases 51 Bihari v. State of Punjab [1977 (2) SCC 210], Govindan Lakshmanan v. Sarada Prema [1997(2) KLT 437], Durga Prasad v. State of A.P. [2004 Crl.L.J.242], the learned counsel for the 2nd and 3rd accused would argue that the report of the expert alone cannot be a basis for entering a conviction. As against the argument, the learned Public Prosecutor relied upon the decisions in State of Kerala v. Vijayan @ Rajan [1992(1) KLT 878] and in Muralilal v. State of M.P. [AIR 1980 SC 531]. In Vijayan's case at paragraph 24 referring to the decision in Muralilal's case it is held as follows:

"There is no justification for condemning expert's opinion - evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the quality of credibility or incredibility being one which an expert shares with all other witnesses--, but because all human judgments is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion."

In Muralilal's case, at para 11 it is held as follows:

"11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, Crl.A. Nos.75 OF 2003 & connected cases 52 unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a mater which, in the ultimate anlaysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted."

43. Going by the evidence on record and the precedents referred, I find that rather than basing upon the conviction on the report of the expert it is the admisability of the evidence that is much relevant. In the event the report of the expert is reliable and trustworthy, conviction can be based upon the report of the expert. Adding to the above, in this case corroborating with the evidence of the expert there is the testimony of PWs 8, 9, 6, 10, 12, 13, 14, 15, 16 and 21 which would show that the 2nd accused had procured the seals for forging the document. He had also taken photographs of the 3rd accused through PW10. There is no Crl.A. Nos.75 OF 2003 & connected cases 53 case for the 2nd accused that the Tax Receipts, Possession Certificate or the No Dues Certificates appended along with the applications were obtained by 3rd accused. On the other hand, the evidence, which I discussed earlier would show that the 2nd accused had obtained photographs by paying from his pocket, got the seals of the Village Office, Village Officer and Service Co-operative Bank manufactured. In his handwriting the Possession Certificates, Tax Receipts and No Dues Certificates were filled up. He identified the 3rd accused in C.C Nos.8, 11, 13, 14, 17 and 19 of 1998 as the loanees and attested the declaration forms. All these unimpeached evidence stare at the 2nd accused who had no good explanation. The active involvement of the 2nd accused in obtaining the loan is also evident by his presence noted in Ext.P144 to 149, the declaration forms in C.C Nos. 8, 11, 13, 14, 17 and 19 of 1998. So, this is a case where there is corroborating evidence in support of the expert opinion. In the above circumstance, on a critical reappraisal of the evidence on record, I am persuaded to concur with Crl.A. Nos.75 OF 2003 & connected cases 54 the trial court that the 2nd accused was the master brain behind the impersonation and forgery for the purpose of cheating.

44. I had earlier mentioned that there is no dispute regarding the applications for loan and the availing thereon. PW19 was working as a Clerk in the main branch of the State Bank Of India. He would depose that he had issued the token for the withdrawal slips, which were marked as Exts.P30, 31, 50, 56, 57, 70, 104, 112, 121 and 122 involved in CC 8, 10, 11, 12, 16 and 18. The evidence of PW22, the Assistant Manager advances of the State Bank of India, Kottayam main branch would show that the 2nd installment of loan as per Ext.P20 withdrawal slip in CC 7/98 was disbursed by him. PW23, the Typist/Clerk of the Bank had deposed that the token for the withdrawal slips Exts.P55, P79, P95, P113, P130 and P131 involved in CC 11, 13, 15 and 19 were released by him. The evidence of PW24, then Cashier of the Bank, would show that he had paid the amount as per withdrawal slips Ext.P70, P79, P87, P95, P104 Crl.A. Nos.75 OF 2003 & connected cases 55 and P112 involved in CC 12/98, 13/98, 14/98, 16/98 and 17/98. The evidence of PW25, yet another Cashier, would show that he had released the amount covered by Exts.P60, P122 and P130 the amount involved in CC 11/98, 18/98 and 19/98.

45. The evidence of the above witnesses regarding the disbursement of the loan amount is also not in dispute. I had earlier mentioned that there is no case for any of the 3rd accused that they had any agricultural land to avail ACC loans. But to avail ACC loans, they had forged Tax Receipts, Possession Certificates and No Dues Certificates along with the 2nd accused and applied for loan, made believe the bank that the 3rd accused had paddy fields to cultivate, entitled to get loan and got released the loan amount. Therefore, offence under Section 420 IPC is also established.

46. The evidence of PW36 would show that some of the loan applications and withdrawal slips would contain the thumb impression of the lonees. He had verified the thumb impressions from the disputed documents with reference to Crl.A. Nos.75 OF 2003 & connected cases 56 the thumb impression of the 3rd accused. Ext.P181 is the report of PW36. A perusal of the evidence of PW36 would show that on comparing the disputed signature of he 3rd accused in CC 7/98, 8/98, 11/98, 13/98, 17/98 and 19/98, it was found that the thumb impressions of the 3rd accused in CC 11/98, 13/98, 14/98,17/98 and 19/98 are identical to the specimen thumb impression of the 3rd accused whereas the thumb impressions found in the documents as that of the 3rd accused in CC 7/98 and 8/98 do not tally with the specimen thumb impression. So the evidence of PW36 also support with the prosecution case regarding the forgery, impersonation and cheating in the above cases.

47. The evidence, which I discussed earlier, would show that the documents were forged by the 2nd and 3rd accused with intent to deceive the State Bank of India and to obtain ACC loans for which the 3rd accused are not entitled. The circumstances stated earlier clinchingly establish that there is conspiracy between the 2nd and 3rd accused. The question then remains is whether the 1st accused had also Crl.A. Nos.75 OF 2003 & connected cases 57 involved with the conspiracy. According to the learned counsel for the 1st accused, the 1st accused belongs to Palakkad District and he was no way connected with the 2nd and 3rd accused. The 2nd and 3rd accused were totally strangers and that the 2nd accused was seen only when he came to the bank for availing loan and that at the request of the 1st accused, the 2nd accused identified certain agriculturalists and applications were made. It was also submitted that more than 200 applications were disposed by the 1st accused out of which, only in 15 cases there is impersonation and forgery. According to the learned counsel, the pre-sanction field inspection was not possible because of the vast extent of the paddy field, which was almost waterlogged and since the bank had given a target he was constrained to recommend for loan without a local inspection and that it was done so without knowing the fact that the Tax Receipts, Possession Certificates and No Dues Certificates produced were forged and that the 3rd accused in CC 7/98 to 19/98 were impersonated applicants. On the Crl.A. Nos.75 OF 2003 & connected cases 58 other hand, the learned Public Prosecutor would rely upon the testimony of PWs 3 and 22, the employees of the bank. They had given evidence to the effect that they had seen the 1st accused talking with and the 2nd accused in the bank. A careful scrutiny of the evidence of PW22 would show that PW22 was sitting at the next table and he could even hear the conversation between the 2nd and 1st accused. That being the place for the alleged conspiracy the evidence of PW22 cannot be taken in its face value to arrive at a conclusion that the 1st accused was also involved in the conspiracy. The evidence of PW3 also didn't suggest that there was anything to doubt about the transaction between the 1st and 2nd accused. Adding to the above, the evidence on record would show that the 1st accused was only a recommending authority and the loan sanctioning authority was the Manager of the Bank. So, it is rather impossible for the 1st accused to sanction the loan. There is no case that the 1st accused had anyway influenced the sanctioning authority in granting the loan. According to the learned Crl.A. Nos.75 OF 2003 & connected cases 59 counsel for the 1st accused, if at all there is any abuse of the office, the Manager of the Bank also should have been arrayed as an accused. On the other hand the learned Public Prosecutor would argue that it is believing the recommendation of the 1st accused the loan was granted by the Manager. Sometimes, if the Manager was cautious enough to have a random checking regarding the identity of the lonees or the genuineness of the documents, the forgery and impersonation should have been revealed out then and there. In this way, on the side of the Manager there is omission. The omission by the 1st accused is nothing more. There is no good reason to place the 1st accused on a different footing. In the peculiar facts of the case, since there is vast extent of paddy field and having no individual marks of identification, there is least possibility for detecting the fraud, even if a pre-loan personal inspection was made by the 1st accused. On a careful analysis of the evidence on record, the possibility of the 1st accused not knowing the forgery or impersonation made by the 2nd and Crl.A. Nos.75 OF 2003 & connected cases 60 3rd accused cannot be ruled out. There is possibility for having conspiracy, forgery and impersonation by the 2nd and 3rd accused even without the knowledge of the 1st accused. Unless there is forgery and impersonation and if the loans were granted in favour of the persons who are entitled to avail ACC loans it cannot be said that there was abuse of the office by the 1st accused. In the above circumstance, I find that the 1st accused can be given the benefit of reasonable doubt.

48. To sum up, I find that the first accused is entitled to order of acquittal on giving benefit of reasonable doubt. The conviction and sentence as against the second and third accused under challenge are based upon cogent evidence and require no interference. It is submitted by the learned counsel for the second respondent that the second accused is an illiterate and devoid of any means and he is entitled to a lenient sentence. Going by the evidence on record, I find that he is the kingpin of the crime. He had exploited the laches of the 1st accused. However, I find that since the Crl.A. Nos.75 OF 2003 & connected cases 61 laches of the 1st accused, an educated and trained personnel of the Bank that led the 2nd and 3rd accused to commit the crime alleged, the sentence awarded by the lower court against the 2nd accused is a little bit exorbitant and that a sentence of rigorous imprisonment for one year with a fine of Rs.5,000/- would meet the ends of justice. The learned counsel appearing for the third accused in C.C.Nos. 6, 8, 9, 13, 14, 15, 16, 17, 18 and 19/1998 would submit that the third accused in C.C.Nos.9/1998 and 14/1998 and 15/1998 are rustic household ladies. The third accused in C.C.Nos.8 and 16/1998 are barbers and third accused in C.C.No.6/1998 is now 71 years old and without any avocation. The third accused in the other cases are also stated to be rustic villagers and without any avocation. It was also submitted that the major portion of the loan amount was swallowed by the second accused and they had got only pittance. That possibility cannot be ruled out. Taking into account of the status of the parties and the attendant circumstances revealed out I find that the third Crl.A. Nos.75 OF 2003 & connected cases 62 accused in all the cases are entitled to a lenient sentence and that a sentence of imprisonment till the rising of court for all offences and a fine of Rs.5,000/- each under Section 420 IPC would meet the ends of justice.

In the result, Criminal Appeals Nos.75, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98 and 99/1993 are allowed. The appellant/first accused would stand acquitted. The fine amount if any, paid shall be refunded. In the other appeals the conviction under challenge would stand confirmed. The sentence against the second accused for offence under Section 468 is reduced to rigorous imprisonment for a period of one year and a fine of Rs.5,000/- each with a default sentence of simple imprisonment for three months. The sentence for offence u/s 120B is reduced to rigorous imprisonment for six months. The sentence as against the third accused would stand reduced to imprisonment till the rising of court for all offences and fine of Rs.5,000/- in each case with a default sentence of simple imprisonment for three months for offence u/s 420 IPC. The imprisonment if Crl.A. Nos.75 OF 2003 & connected cases 63 any, the second accused had undergone shall be set off. The substantive sentences for both offences in all the cases shall run concurrently.

P.S.GOPINATHAN, JUDGE.

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