Madras High Court
V.Krishnan vs State Rep. By on 13 March, 2012
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.03.2012
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal Nos.206 and 213 of 2006
V.Krishnan .. Appellant/A2 in Crl.A.No.206 of 2006
V.Dilip Kumar .. Appellant/A1 in Crl.A.No.213 of 2006
Vs.
State rep. by
Inspector of Police
SPE/CBI/ACB, Shastri Bhavan
Chennai. .. Respondent/Complainant
Prayer:Criminal Appeals filed under Section 374(2) Cr.P.C. against the judgment of conviction and sentence, dated 10.02.2006 made in C.C.No.3 of 1999 on the file of the learned Additional Special Judge for C.B.I. Cases, Chennai.
For Appellant in : Mr.S.A.Rajan
Crl.A.No.206/2006
For Appellant in : Mr.R.Vijayaraghavan
Crl.A.No.213/2006
For Respondent : Mr.N.Chandrasekaran
Special Public Prosecutor (CBI cases)
C O M M O N J U D G M E N T
The Criminal Appeals arise out of the judgment of conviction and sentence, dated 10.02.2006, made in C.C.No.3 of 1999, on the file of the learned Additional Special Judge for C.B.I. Cases, Chennai, whereby the accused were convicted for the offences under Sections 120B, 409, 420, 477(A) IPC and Sections 13(2) r/w 13(1)(C) & 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced them to undergo each one year rigorous imprisonment and imposed a fine of Rs.1,000/- each in default in payment to undergo each three months simple imprisonment for an offence under Section 120B IPC and further sentenced them to undergo each two years rigorous imprisonment with a fine of Rs.3,000/- each in default in payment to undergo each six months simple imprisonment for the offences under Sections 409, 420, 477(A) IPC and 13(2) r/w 13(1)(c) and 13(2) r/w 13(1)(d) of P.C.Act, 1988. Both the accused were directed to undergo the period of sentences concurrently.
2.The respondent/S.P., C.B.I. herein filed a charge sheet against the accused A1 and A2 stating that on 15.10.1991, at about 8.45 a.m., one Balaramapillai, son of Elumalai Pillai, gone to the Indian Bank, Mappedu Branch and entrusted a sum of Rs.50,000/- to A1 with a specific instruction to issue a RIP certificate in favour of himself for a period of two years. A1/Dilip Kumar had entered into a criminal conspiracy with A2/Krishnan and fraudulently and dishonestly prepared a bogus RIP receipt bearing No.EF/RIP/CC No.320759 dated 15.10.1991, which was signed by A1/Dilip Kumar as an authorised signatory knowing fully well that the issuance of bogus RIP receipt is not reflected in the books of accounts of the Bank and thereby they got pecuniary advantage of Rs.50,000/-. On the maturity date, the said Balaramapillai surrendered the RIP receipt to one A.Karuppaiah, Manager, who posted in the place of A1. A.Karuppaiah could not find any documentary evidence pertaining to the issuance of the said RIP. Therefore, the Bank was lodged a complaint against the accused 1 and 2 and then P.W.8-Inspector of Police filed a charge sheet against the accused for the offences under Sections 120B r/w 409, 420, 477(A) IPC and Sections 13(2) r/w 13(1)(c) & 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
3.The case of the prosecution is as follows:
(i)During the period between 1991 and 1993, A1 was working as a Manager of Indian Bank, Mappedu Branch, A2 was a Clerk, P.W.5-Usha was a Typist, P.W.7-Devendrarao was a Cashier. On 15.10.1991, P.W.3-Balakrishnan, his father-in-law Balaramapillai along with his relative one Krishnan went to Indian Bank, Mappedu Branch, to deposit a sum of Rs.50,000/- for two years. At the time, A1, A2 and one Palanivadivelu, who was working as an Officer were present in the Bank and the amount was deposited in the name of Balaramapillai. Then, A1 directed them to come after four days for receiving F.D. receipt. Thereafter, P.W.3 went to the Bank and received the receipt.
(ii) On 16.10.1993, they went to the Bank for withdrawing the matured amount, after the date of maturity and gave the F.D. receipt to P.W.4-Karuppaiah, who was working as Manager. He said that the amount was accumulated to Rs.63,335/- and then he canvassed for renewal of the deposit and they agreed for the deposit of Rs.60,000/- in Re-investment plan (R.I.P.) and they wished to withdraw remaining balance amount of Rs.3,335/-. Even though a token was given for the payment of Rs.3,335/-, no payment was made to the father-in-law of P.W.3. When they made an enquiry, P.W.4 informed them that no amount was deposited in the Bank as per the receipt shown to him. So P.W.4 directed P.W.3 to come after two days and handed over the xerox copy of the F.D. receipt, which was marked as Ex.P3.
(iii) After verification, P.W.4, the then Manager found that no amount was deposited in the name of Balaramapillai in the Bank account and Ex.P3 was not signed by Palanivadivelu, who was an authorised signatory. On 15.10.1991, on the particular date, A1, A2 and Palanivadivelu were attended the office, to prove the same, Ex.P4 Attendance Register and Ex.P5-Entry in Ex.P4 were marked.
(iv) On verification, the ledger shows that folio No.162 was marked as Ex.P6, in which, the name of the depositor was shown as Tamil Nadu Adidravida Housing Development Corporation Limited and the date of issuance was on 30.09.1991 and the F.D. receipt No. was shown as 320760 and the period of deposit was 12 months and the amount was Rs.5,00,000/-. So the folio No.162 in Ex.P3, which was written by A2 does not tally with Ex.P6 and the same folio number cannot be given to another deposit of a different party. The certified photo copy of RIP ledger folio No.161 was marked as Ex.P7 stands in the name of one Fathima, w/o Mariyanna Naidu, Keelacheri, which was issued on 07.10.1991 for Rs.500/- for a period of 36 months and the Receipt Number is 320758.
(v) Ex.P6 is in the handwriting of A2 and Ex.P7 is in the handwriting of Palanivadivelu. The receipt numbers found in Ex.P6 and Ex.P7 are not consecutive and one number 320759 is missing. It is the duty of the Clerk, who prepared the receipt to open the folio and the Manager should verify whether the folio has been opened, before he put his sign. For Ex.P3, no folio was opened in the Mappedu Branch. It was the duty of A2 to open a folio and to get the Manager's sign for the same. If A1 had checked the same, he would have found that the folio had not been opened for Ex.P3.
(vi) As per Ex.P8-Rough cash book for 15.10.1991, Bank has not received Rs.50,000/-. So the issuance of Ex.P3 is not supported by cash. Ex.P8 was written by then Cashier Devendrarao, who was examined as P.W.7. To verify the same, cash scroll register for 15.10.1991 was marked as Ex.P9. The receipt of Rs.50,000/- as shown in Ex.P3 was not reflected in Ex.P9. But the total amount in Ex.P8 is tallied with Ex.P9, which was written by A1. Ex.P9 is the mirror copy of Ex.P8.
(vii) As per Ex.P10-Cash balance book for 15.10.1991, the closing balance as on that date was Rs.1,19,724.40, which was prepared by P.W.7-the then Cashier. The Sectional day book and Day Book for 15.10.1991 were marked as Ex.P11 and Ex.P12. Ex.P11 refers to total deposit transactions for 15.10.1991 and Ex.P12 refers to the total debits and credits of all the transactions of the branch for 15.10.1991. So those documents under Exs.P11 and Ex.P12 also did not reflect the receipt of Rs.50,000/- on 15.10.1991 by the branch.
(viii) P.W.4-Mr.Karuppaiah, Branch Manager, deposed that when P.W.3 came to the Bank along with his father-in-law for closing the deposit, he advised them to redeposit the matured amount of Rs.63,335/- in the Bank once again and they agreed to deposit Rs.60,000/- and to withdraw the remaining maturity amount of Rs.3,335/-. P.W.4 instructed the then deposit Clerk P.W.5 to close the deposit and prepare the documents for renewal of Rs.60,000/- and for payment of balance amount. But she reported that there was no such deposit in the Bank's books of account and there was no voucher for the same. Therefore, P.W.4 discussed with the Officer Sampath. Since 16.10.1993 was happened to be Saturday, P.W.4 asked P.W.3 and others to come on 18.10.1993 and received the original F.D. receipt Ex.P3, after made acknowledgment in token of receiving Ex.P3.
(ix)He intimated the same to Palanivadivelu, who was working as an Officer of the branch during the relevant period. On 16.10.1993, P.W.4 along with Officer Sampath and P.W.7-Cashier Devendrarao, visited A1's house and A1 admitted the issuance of Ex.P3 and they also met A2 and requested A1 and A2 to come to Bank on Sunday for trace out the records pertaining to Ex.P3. On 17.10.1993, even it was Sunday, the Bank was opened to locate the deposit. A1, A2 and father of A2 came to the branch and A1 and A2 searched for the documents relating to Ex.P3, but they could not locate the paper.
(x) Then P.W.4 decided to report the matter to the higher authorities and submitted the report to Zonal Manager A.V.Shanmugasundaram on 18.10.1993. Since he did not attend the office, P.W.4 reported the matter in writing to the Chief Officer, Vigilance Department and they met Zonal Manager A.V.Shanmugasundaram at around 1.30 p.m. at his residence. Zonal Manager informed to P.W.4 to ask A1 to deposit the maturity amount otherwise, the matter will be reported to CBI and that factum was intimated to A1 on the same day.
(xi) On 19.10.1993, P.W.4 along with A1 met Zonal Manager, in his chamber and he gave time to A1 to deposit the amount. Accordingly, A1 also agreed to repay the amount and on 21.10.1993, A1 paid a sum of Rs.63,335/- by cash, by way of credit challan and the same was marked as Ex.P13. Ex.P13 was prepared by A1 and he passed the same and the cash was received by P.W.7 and it was signed by both A1 and P.W.7. On the same day, the amount was deposited in sundry deposit in the name of Balaramapillai through Ex.P14 voucher.
(xii) P.W.2-Gopalakrishnan, who was working as Chief Manager of Indian Bank at Central Office, Vigilance Department, Chennai, gave a complaint Ex.P2 on 23.02.1995, against A1/Manager, A2/Clerk and Palanivadivelu. P.W.8-Inspector of Police, C.B.I. received the complaint on 28.02.1995, at 11.00 a.m. and registered the case in R.C.11(A)/95 under Sections 120B, 420, 467, 468, 471 and Sections 13(2) r/w 13(1)(d) of P.C. Act, 1988, against the accused 1 and 2 and Palanivadivelu.
(xiii) During the course of investigation, P.W.8 obtained a search warrant from Chief Metropolitan Magistrate, Egmore, Chennai and he conducted the house search of Palanivadivelu and no documents have been seized from him and the search list was marked as Ex.P22. Similarly, Mr.Ramasubramaniam and Mr.Kamal Abdul Nazir, who are the then Inspector of Police, conducted the house search of A1 and A2 and the search lists were marked as Exs.P20 and P21 respectively. From 05.06.1995 to subsequent dates, P.W.8 recorded the statements of witnesses and collected the relevant documents from the Bank Officers concerned and concluded his investigation. After obtaining sanction order for prosecuting the accused 1, 2 and Palanivadivelu, he filed a charge sheet against the accused on 29.01.1999.
4.The learned Additional Special Judge for C.B.I. cases, after following the procedure, framed necessary charges. Since the accused pleaded not guilty, the learned Special Judge examined the witnesses P.W.1 to P.W.8 and marked the documents Exs.P1 to P24 and placed the incriminating evidence before the Accused and the accused denied the same and marked Ex.D1 and considering the oral and documentary evidence, found the accused 1 and 2 guilty of the offences under Sections 120B, 409, 420, 477(A) IPC and Sections 13(2) r/w 13(1)(C) & 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced as stated above, against which, Crl.A.No.206 of 2006 has filed by the appellant/A2 and Crl.A.No.213 of 2006 has filed by the appellant/A1.
5.Challenging the judgment of conviction and sentence, Mr.Vijayaragavan, learned counsel appearing for the appellant/A1 submitted that the sanction accorded is not valid under law and P.W.1 is not a competent person to accord sanction, because Mapped Branch is coming under the jurisdiction of Vellore Zone, wherein P.W.1 is not a Zonal Manager and he is only a Zonal Manager of Madras Division. Since P.W.1 is not a competent person to accord sanction, the sanction order itself is vitiated. Hence, he prayed for allowing of this appeal.
6.Mr.S.A.Rajan, learned counsel appearing for appellant/A2 submitted that initially sanction was rejected as against A2 and the sanction order was furnished at the time of questioning the accused under Section 313 Cr.P.C. and then only a fresh Ex.P1 sanction order has been accorded for prosecuting A2. Since the sanction order is not given by the competent authority after applying his mind and after going through the entire documents, sanction order for prosecuting against A2 is invalid in law. He further submitted that on the intervention of CBI Officer, sanction has been accorded against A2. So sanction itself is non-est in the eye of law. Hence he vehemently questioned the validity of Ex.P1 sanction order and prayed for allowing of the appeal.
7.Refuting the same, Mr.N.Chandrasekaran, the learned Special Public Prosecutor (C.B.I. cases) submitted that P.W.1, who was working as Zonal Manager, is a competent person to accord sanction and his evidence has clearly proved that after applying his mind, he accorded sanction for prosecuting the appellants/accused. He further submitted that the entrustment of Rs.50,000/- has been proved by the evidence of P.W.3-Balakrishnan and that amount has been misappropriated by the appellants/accused, without opening folio. It is further submitted that it is the duty of A2, who was working as a Clerk, prepared Ex.P3, without opening folio and without verifying the challan and voucher. Furthermore, A2 was given a wrong folio number. When P.W.3 and his father-in-law approached the Bank for withdrawing the matured amount, P.W.4 came to know about the misappropriation and the same has been proved by way of his evidence. Moreover, the evidence of P.W.5 and P.W.6 shows the procedure for depositing the amount of Rs.50,000/- entrusted by A1 which was not credited into the Bank account. Therefore, P.W.1 accorded sanction after applying his mind and the trial Court considered all the aspects in a proper perspective and came to the correct conclusion. Hence, there is no illegality or infirmity in the judgment passed by the trial Court and therefore, he prayed for dismissal of the appeals.
8.Considered the rival submissions made on both sides and the materials available on record.
9.Sanction:
On the basis of Ex.P2 complaint given by P.W.2-Gopala Krishnan, who was working as Chief Manager of Indian Bank at Central Office, Vigilance Department, Chennai, P.W.8-Inspector of Police, C.B.I., registered a case in R.C.11(A)/95 against the appellants/A1 and A2 and investigate the matter. Before filing the charge sheet, P.W.8 obtained Ex.P1 sanction order from P.W.1- Sanctioning Authority, who accorded sanction under Section 19(1)(c) of Prevention of Corruption Act, 1988. Both the learned counsel for the appellants/A1 and A2 mainly focussing upon their arguments that P.W.1 is not a competent person to accord sanction and while according sanction, he has not applied his mind. P.W.1 is none other than the Zonal Manager of Chennai Division. Admittedly, Mappedu branch comes under the jurisdiction of Vellore Zone.
10.At this juncture, it is appropriate to consider the evidence of P.W.1. In his cross-examination itself, P.W.1 fairly conceded that there was another Deputy General Manager in the Central Office, who is having concurrent power to accord sanction to prosecute the Branch manager/A1 in this case. A suggestion was posed to him that he accorded the sanction in this case, at the instance of CBI, but the same was denied by him. Further, he deposed that Mappedu branch was coming under the jurisdiction of Vellore Zone, from around 1995 and he has given sanction for prosecution on 4.12.1998. Now it comes under the jurisdiction of Kancheepuram Division. But the alleged occurrence has been taken place on 15.10.1991.
11.Now it is appropriate to consider the Section 19(2) of Prevention of Corruption Act, which is extracted hereunder:
"19(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. "
As per the above Section, the sanction shall be given by authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. The offence was committed in the year 1991, but the Vellore zone has been formed only in the year 1995. In such circumstances, I am of the view, P.W.1-Zonal Manager of Chennai Zone, is a competent person to accord sanction, since Mappedu branch comes under Chennai Zone during the period of commission of offence. So the argument advanced by the learned counsel for the appellant that the P.W.1 is not a competent person to accord sanction, does not merit acceptance.
12.Now this Court has to decide that whether P.W.1 has applied his mind, while according sanction? The learned counsel for the appellant/A1 relied upon the decision reported in 2007(4) Crimes 22 (SC) (State of Karnataka v. Ameer Jan) in para-15, it is stated as follows:
"15. .. It was found that except the report, no other record was made available before the sanctioning authority. The order of sanction also stated so. PW-8 also did not have the occasion to consider the records except the purported report."
He submitted that sanction vitiated for non-application of mind.
13.At this juncture, it is appropriate to consider the evidence of P.W.1 and the documents, which are perused by him, before according sanction. In his chief-examination, he stated that he perused FIR, copies of the statement of witnesses, copies of documents relating to this case, which are mentioned in his sanction order. He further deposed that he perused all the records and applied his mind and after having satisfied, he accorded sanction. He denied a suggestion, which was posed to him that Shanmugasundaram, who was the Zonal Manager for the combined Zone, alone is a competent person to accord sanction. He also denied the suggestion that he accorded sanction without applying his mind.
14.As per the decision of the Apex Court, reported in (1984) 2 SCC 183 (R.S.Nayak v. A.R.Antulay), in para-23, it is held as follows:
"23. .. .. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants. (See Mohd. Iqbal Ahmad v. State of Andhra Pradesh). The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him, to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. .. .."
Considering the citations along with Ex.P1-Sanction order, P.W.1 after discussing all the facts of the case accorded sanction. In such circumstances, I am of the view, in respect of A1, P.W.1 accorded sanction after applying his mind. Hence I do not find any infirmity in the sanction order accorded by P.W.1 in respect of A1.
15.The learned counsel appearing for the appellant/A2 submitted that initially the sanction for prosecuting A2 was refused by the authority concerned and subsequently, sanction has been accorded by P.W.1, without any further fresh material. Hence, the sanction itself is vitiated. For the reasons stated above, he relied upon the following decisions:
(i) 1993 Cri.L.J. 558 (M.Srinivasalu Reddy v. Inspector of Police, Anti Corruption Bureau, Vellore Range, Nellore) in para-33, it is held as follows:
"33. A bare reading of Section 6(1)(b) would indicate that it aims at preventing harassment and vexatious prosecution of a public servant. It assures that an honest public servant would not be in a position to oblige every one and may, therefore, incur displeasure of many of them. This displeasure may even result in his vexatious and malicious prosecution for offence relating to discharge of his official duties. The Legislature, therefore thought of providing a reasonable protection to public servants in the discharge of their official functions so that they continue performing their duties and obligations undeterred by vexatious and unnecessary prosecution. .. "
(ii) As per the dictum of the Apex Court, the mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. In AIR 1997 SC 3400 (Mansukhlal Vithaldas Chauhan v. State of Gujarat) in para-19, it is held as follows:
"19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
16.The learned counsel appearing for the appellant/A2 submitted that at the time of questioning under section 313 Cr.P.C., A2 filed a document, dated 17.4.1998, to show that initially the sanction has been rejected by Ramasamy, General Manager, Vigilance Department/Chief Vigilance Officer. It is a well settled principle of law that defence/explanation can be raised at the time of questioning under Section 313 Cr.P.C. However, it is also a well settled principle of law that the defence of the accused has not been proved by the prosecution beyond reasonable doubt. But it has been proved by preponderance of probabilities. Here, the document has clearly proved that the Chief Vigilance Officer sent a letter to the Superintendent of Police, CBI, and he stated that there is no malafide intention on the part of Shri.V.Krishnan/A2 and also he has not committed any criminal action and in the light of the above, they are unable to accord sanction for prosecuting against Shri.V.Krishnan/A2. But the General Manager/Chief Vigilance Officer is not a competent person to accord sanction. In such circumstances, the document filed by A2 at the time of questioning under Section 313 Cr.P.C. is no way help A2 in this case.
17.Learned counsel appearing for the appellant/A2 further submitted that the Indian Bank had given reasons as to why sanction was not accorded for prosecuting A2 and they also made an explanation in their letter, dated 29.05.1998, in which, it is stated as follows:
".. .. The reasons why sanction for prosecution was not given by us in the case of Shri. Krishnan was explained in our letter to CBI dated 17.04.1998 was enumerated in detail. CBI felt that the perception of the Bank was different from that of CBI. Ms.Sreelakshmi Prasad, Superintendent of Police explained that in the original complaint given by the bank against Sri Krishnan on 23.2.1995, it was mentioned that he is to be treated as involved and acted in collusion with the branch manager. .. .. As a clerk he should know procedures when he was asked to do any work by the officers and should not do anything blindly. It is therefore necessary to sanction prosecution. If he is innocent, the same can be provided in the Court.
C.V.C. officials stated that they have advised sanction for prosecution of Smt.V.Geetha also on recommendations of the CBI. The bank may accord sanction as advised by the CVC in respect of Sri V. Krishnan and Smt.V.Geetha."
He further submitted that the above para shows that P.W.1 has not applied his mind, while according sanction for prosecuting against A2. But only on the intervention of CBI, the sanction has been accorded. In such circumstances, it is appropriate to consider the decision relied upon by the learned counsel for the appellant/A2 reported in AIR 2011 SC 404 (State of Himachal Pradesh v. Nishant Sareen) in para-12 and 13, which is held as follows:
"12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. Sound principle to follow is once the statutory power under Section 19 of the P.C. Act, 1988 or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. A change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course.
13. Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent order dated March 15, 2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible."
While considering the evidence of P.W.1, he stated that he did not know about the prolonged letter correspondence between the Bank and C.B.I. with regard to sanction for prosecuting A1. In his cross-examination, he denied a suggestion, which was posed to him that he had not applied his mind, while according sanction and only at the instance of C.B.I., he accorded sanction. Considering the same, I am of the opinion, it is not the case of A2 that P.W.1 has accorded sanction without perusing records. Admittedly, the sanction has been rejected only by the Chief Vigilance Officer. So P.W.1 is not a person, who rejected the earlier sanction. In such circumstances, I am of the view, sanction accorded by P.W.1 against A2 under Ex.P1 is valid one.
18.In view of the discussion in para-14 and 17 of this Judgment, P.W.1 is a competent authority and Ex.P1 sanction order is a valid one.
19. Whether the evidence are sufficient to convict the accused for an I.P.C. offences.
Both the appellants/A1 and A2 in Crl.A.Nos.213 and 206 of 2006, were working as Branch Manager and Clerk respectively, in Indian Bank, Mappedu Branch. After considering the oral and documentary evidence, the Special Court convicted the appellants/A1 and A2 for the offences under Sections 120B, 409, 420, 477(A) IPC and Sections 13(2) r/w 13(1)(C) & 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. Learned counsel for the appellant/A1 submitted that there is no evidence for criminal conspiracy between A1 and A2, which comes under Section 120A IPC. Per contra, learned Special Public Prosecutor for CBI cases would submit that A1 had received the amount and both A1 and A2 were conspired together and misappropriated the amount deposited by Balaramapillai and they falsified the record by way of issuing bogus F.D.receipt, by without making any entries in the account books of the Bank. So the ingredients of Sections 120B, 409, 420, 477A IPC have been made out.
20.On considering the arguments advanced by both sides, it is true, to prove the conspiracy, evidence must be direct, but since direct evidence is not possible it can be inferred from circumstantial evidence, and on proved facts. Agreement may be proven by necessary implication and it must be followed by an overt act and agreement can be inferred from conduct of conspirators. Direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. As per the evidence of P.W.3, Rs.50,000/- has been handed over to A1, who was the Manager of the Indian Bank, during the relevant period. That factum has been proved by P.W.3. Furthermore, it is also the case of prosecution that Ex.P3-F.D. Receipt has been issued on 15.10.1991 for the payment made by the father-in-law of P.W.3. After the maturity date (i.e.) on 15.10.1993, when P.W.3 and his father-in-law were approached P.W.4 for withdrawing the deposited amount, P.W.4 said that the amount was accumulated to Rs.63,335/- and then he canvassed for renewal of the deposit and they agreed for the deposit of Rs.60,000/- in Re-investment plan (R.I.P.) and they wished to withdraw remaining balance amount of Rs.3,335/-. On verification, the Books of account shows that no such amount was deposited by Balaramapillai. Furthermore, P.W.5-Typist and P.W.6-Kirupa Shankar Tiruvedi, who was working as Chief Manager, were deposed about the procedures of Indian Bank regarding opening of S.B. Account, RIP Account etc. In the year 1991, deposit of Rs.50,000/- is very huge amount and the Manager is usually attend the VIP customers those who deposit such a huge amount. There is no reason assigned by the appellant/A1 for discarding the evidence of P.W.3-Balakrishnan. So the argument advanced by the learned counsel for the appellant/A1 that the amount has not been received by A1/Manager, does not merit acceptance. As per the evidence of P.W.3, Rs.50,000/- has been entrusted to A1 and the same has been proved by the prosecution beyond reasonable doubt.
21. It is also pertinent to note that since the amount has been deposited through A1, he himself deposited the matured amount on 21.10.1993. When A1/Manager was questioned under Section 313 Cr.P.C., he stated that after verifying voucher and challan, he signed Ex.P3. Admittedly, A1 and A2 did not open any account for the amount deposited by Balaramapillai. In Ex.P3, the folio number has been mentioned as 162. Admittedly, the folio No.162 was marked as Ex.P6, in which, the name of the depositor was shown as Tamil Nadu Adidravida Housing Development Corporation Limited and the date of issuance was on 30.09.1991 and the F.D. receipt No. was shown as 320760 and the period of deposit was 12 months and the amount was Rs.5,00,000/-. It would clearly prove that folio No.162 in Ex.P3, which was written by A2, does not tally with Ex.P6. Ex.P7 is the folio No.161, which stands in the name of one Fathima, was issued on 07.10.1991 for Rs.500/- for a period of 36 months and the Receipt Number is 320758. Ex.P8 is the Rough cash book for 15.10.1991 and Ex.P9 is the Cash scroll register for 15.10.1991 and the receipt of Rs.50,000/- as shown in Ex.P3 was not reflected in both Exs. P8 and P9.
22.As already stated above, the evidence of P.W.3-Balakrishnan, itself proved that A1 received Rs.50,000/-. It is to be noted that the entire amount of Rs.63,335/- has been paid by A1, which was evidenced by Ex.P13-challan and through Ex.P14-Voucher, the amount was deposited in sundry deposit in the name of Balaramapillai and the same was marked as Ex.P15-Sundry Register and the entry in Ex.P15 was marked as Ex.P16. Moreover, P.W.4, in his evidence, stated that on 17.10.1993, A1 and A2 came to the Bank and searched the challan and voucher for the deposited amount and they could not find the same. But they did not assign any reason as to why the amount of Rs.50,000/- was not brought into the Bank's account. In my opinion, the evidence of P.W.4 is natural and cogent and hence, there is no reason for discarding his evidence. A1 and A2 admitted the issuance of Ex.P3 and hence, the duty is cast upon them to prove as to why the amount was not brought into Exs.P8 to P12. Ex.P12 is the Day book of 15.10.1991, which reveals that on 15.10.1991, the transaction is only up to Rs.32,216/-. So the documents under Exs.P8 to P12 would clearly prove that the amount of Rs.50,000/- was not brought into the bank's account. It is the duty of A2/Clerk, who prepare the receipt to open the folio and A1/Manager, who verify whether the folio has been opened, before he put his sign. Here, A2 did not open separate folio for the amount, which shows that both A1 and A2 conspiring together made a criminal conspiracy and misappropriated the amount. In such circumstances, the conduct of both A1 and A2 is proved that they are guilty of the offence under Section 120A IPC and hence, they were punished for the offence under Section 120B IPC.
23.The learned counsel appearing for both sides would submit that the first and foremost ingredient of Section 409 IPC is entrustment of the money and misappropriated the same, but there is no evidence to prove that both the accused conspiring together misappropriated the money, which was entrusted to A1 by Balaramapillai. At this juncture, it is appropriate to consider the following decisions relied upon by the learned counsel for the appellant/A1:
(i) It was held by the Apex Court that there must be an evidence to show that the appellant dishonestly misappropriated or converted the receipt books to his own use or dishonestly used or disposed of it. Then only, the appellant is liable to convict under Section 409 IPC. It is appropriate to incorporate para-2 of the decision reported in 1977 Cri.L.J.1158 (Sardar Singh v. State of Haryana), which reads as follows:
"2. .. .. Here, as we have already pointed out, the appellant was admittedly entrusted with the receipt-book or in any event with dominion over it, but there is no evidence to establish that he dishonestly misappropriated the receipt-book or converted it to his own use or dishonestly used or disposed of the receipt-book. It is quite possible that the appellant might have lost or mislaid the receipt-book and hence he might have been unable to return it to the superior authorities. What the section requires is something much more than mere failure or omission to return the receipt book. The prosecution has to go further and show that the appellant dishonestly misappropriated or converted the receipt book to his own use or dishonestly used or disposed of it. That, we are afraid, the prosecution has not been able to do in the present case. We are, therefore, of the view that the appellant was wrongly convicted under Section 409."
(ii) It was held by the Apex Court that merely because non submitting the explanation for the shortage, it cannot be presumed to have misappropriated the articles by the accused. In AIR 1981 SC 1646 (Janeshwar Das Aggarwal v. State of U.P.) in para-3, it is stated as follows:
"3. .. Before a conviction under Section 409 Indian Penal Code can be recorded, the prosecution must prove two essential facts : (1) the factum of entrustment and, (2) the factum of misappropriation of the entrusted articles. Even if it be assumed that entrustment was proved in this, there is absolutely no evidence to show, either direct or circumstantial, that the appellant had misappropriated any of the articles in the godowns. As the godowns were open and accessible to all and sundry the possibility of the goods having been pilfered or stolen away by others cannot be excluded. The High Court was, therefore, clearly wrong in holding that as the appellant has not given any explanation for the shortage, he must be presumed to have misappropriated the articles kept in the godowns. In the present state of evidence, no such legal inference could be drawn. Mr. Bhat also conceded that there its no legal evidence to show that there was any misappropriation by the appellant. .. "
(iii) Unless there is an evidence for misappropriation, or conversion to personal use or disposal of property is established, it is unsafe to convict the accused for the offence under Section 405 IPC or 409 IPC. So it is appropriate to incorporate the decision reported in 2003(4) Crimes 50 (SC) (Kailash Kumar Sanwatia v. The State of Bihar and another), in para-10, it is held as follows:
"10. .. .. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation; a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 405 IPC or Section 409 IPC, unless misappropriation, or conversion to personal use or disposal of property is established. .."
24.Mr.S.A.Rajan, learned counsel appearing for the appellant/A2 also relied upon the following decisions:
(i) It was held by the Apex Court that mens rea has proved that the accused had a dishonest intention and he is found guilty of the offence under Section 420 IPC. In AIR 1974 SC 1560 (Raghunath Prasad v. State of Bihar) in which, it is held as follows:
"Held that it could not be said that the requisite mens rea had been established against the accused. At the highest it was a case of an error of judgment or breach of performance of duty which, per se, could not be equated with dishonest intention which was one of the essential ingredients of the offence of cheating under Section 420."
(ii) The dishonest intention has not been proved, the accused was only guilty of dereliction of his duty not for criminal liability. In AIR 1991 SC 1394 (Narendra Pratap Narain Singh and another v. State of U.P.) in which, it is held as follows:
"Where it was alleged that the accused persons who were entrusted with fertilizers, seeds etc. of the Government Agricultural Seed Store in their official capacity prepared forged bills in respect of the articles of the store in name of some village level workers as if these workers were supplied with articles on credit and thereby committed criminal breach of trust under Section 409, it was held that the charge could not be sustained when it was shown that in spite of the circulars by Director, Agriculture directing to stop the practice of credit sales of fertilizers, etc. from the Government Agricultural seed store, in reality the long established practice of credit sales was continued and also when none of the bills was found to be bogus nor was found to have been dishonestly used as genuine inasmuch as the charges under Sections 467 and 471 against the accused were set aside by the High Court and no appeal was preferred by the State against the same and the amount under the bills alleged to have been misappropriated was deposited by the accused and there was no outstanding amount at the time when the investigation was started. Consequently, it was held that the prosecution had not satisfactorily established the main ingredient of 'dishonestly' against any of the accused, even though at the worst, it may be said that the first accused was guilty of dereliction of his duty in not collecting the outstanding amount by taking any appropriate steps in that regard. Moreover the bills which were alleged to have been forged by the accused No.2 were of the dates before the accused No.2 took charge of the seed store in question on his transfer from accused No.1. Further, there was no evidence that there was any conspiracy, pre-concert or concert of minds of the accused or any pre-arranged plan between the two accused to commit the offence or offences complained of. "
(iii) if merely because A2 has not opened folio, it is only a negligent on the part of A2, the ingredients of Section 409 IPC would not constitute an offence under Section 409 IPC and the learned counsel relied upon the decision reported in AIR 2004 SC 252 (L.Chandraiah v. State of A.P. and another) in para-9, it is held as follows:
"Held, even though it could be said that the appellants accused acted in a negligent manner and if they had taken due care they would have detected the fraud, but they by itself would not constitute an offence under Section 409 IPC though it may expose the appellants to disciplinary action under the relevant rules."
He submitted that there is no evidence to show that the accused entrusted the amount of Rs.50,000/-. As already stated that P.W.3 deposed in his evidence that he handed over the amount to A1, who gave Ex.P3-receipt for the same. Ex.P3 was prepared by A2 and A1 signed as an authorised signatory in Ex.P3. Normally, two Officers of the Bank should sign the receipt as per the Bank rules. But A1 has signed only once in Ex.P3. As already discussed above that both the accused conspiring together misappropriated the entrusted amount. Hence, the ingredients of Section 409 IPC have been made out. Further, the evidence and conduct of the accused A1 and A2 clearly proved that they conspired with each other, cheated the Bank and created Ex.P3 and handed over Ex.P3 to the depositor, without credited the amount into the Bank Account, which shows that they had dishonest intention and misappropriated the amount and they got wrongful gain. So the ingredients of Section 420 IPC have been proved by the prosecution beyond reasonable doubt. The accused on receiving Rs.50,000/- without brought into the Bank's account and without opening the folio in the RIP register, issued Ex.P3, proved the ingredients of Section 477A IPC. Hence, the above facts and circumstances would clearly prove that both the accused are found guilty of the offences under Sections 120B, 409, 420, 477(A) IPC and Sections 13(2) r/w 13(1)(C) & 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. Therefore, the Special Court is correct in holding that the accused were found guilty of the offence under Sections 120B, 409, 420, 477(A) IPC and Sections 13(2) r/w 13(1)(C) & 13(2) r/w 13(1)(d) of P.C.Act, 1988.
25.Considering the gravity of offence, the learned Special Judge imposed the sentence as stated above. In my opinion, it is fair and proper and hence, it does not warrant any interference.
26.In fine, The Criminal Appeals are dismissed confirming the judgment of conviction and sentence dated 10.02.2006 made in C.C.No.3 of 1999 on the file of the learned Additional Special Judge for C.B.I. Cases, Chennai.
Consequently, connected Miscellaneous Petition is closed.
The Bail bond executed by the appellants, if any, shall stand cancelled.
The Special Court is directed to secure the custody of both the accused to undergo the remaining period of sentence.
kj To
1.Inspector of Police SPE/CBI/ACB, Shastri Bhavan Chennai.
2.The Additional Special Judge for C.B.I. Cases Chennai.
3.The Special Public Prosecutor (CBI cases) High Court, Madras.
4.The Record Keeper Criminal Section, High Court, Madras