Bangalore District Court
In Sri.Naveen Hegde vs Central Bureau Of on 30 April, 2016
IN THE COURT OF THE XLVII ADDITIONAL CITY
CIVIL & SESSIONS JUDGE & SPECIAL JUDGE FOR
C.B.I. CASES (CCH-48), BENGALURU
Dated this the 30th day of April 2016
Present: SRI.ASWATHA NARAYANA, B.Sc., LL.M.,
XLVII Additional City Civil & Sessions Judge
& Special Judge for CBI Cases, Bengaluru.
CRIMINAL APPEAL Nos.74/2013,
76/2013 & 84/2013
APPELLANT IN Sri.Naveen Hegde,
CRIMINAL APPEAL S/o.Sri.Sadananda Hegde,
NO.74/2013 Aged about 41 years,
(Accused-7 before Residing at No.10, 6th Main,
Trial Court): S.K.Nagar, Near
Mahalakshmi
Layout Bus Stand,
Bengaluru-560 096.
(By Sri.Praveen Hegde,
Advocate.)
APPELLANT IN Sri.B.R.Anil Kumar,
CRIMINAL APPEAL S/o.Sri.B.R.Ranganath,
NO.76/2013 Aged about 35 years,
(Accused-1 before Trial Managing Partner,
Court): M/s.Sree Krishna
Enterprises,
Bengaluru.
Residing at No.15, MSR
Nagara,
8th 'B' Cross, New BEL Road,
Bengaluru-560 054.
(By Sri.H.P.Leeladhar,
Advocate.)
1. Sri.Gajendra,
APPELLANTS IN
S/o. Sri.Chandrashekar,
CRIMINAL APPEAL
Aged about 50 years,
2 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
NO.84/2013 Residing at No.75,
(Accused-6 & 8 before 12th 'C' Cross,
Trial Court): 6th Block, Rajajinagara,
Bengaluru-560 010.
2. Sri.Krishnappa @
Basavannappa,
S/o.Late Sri.Narappa,
Aged about 78 years,
Residing at No.8/4,Azad
Nagara, Chamarajpet,
Bengaluru. ... (Abated)
(By Sri.Praveen Hegde,
Advocate.)
-Vs-
RESPONDENT Central Bureau of
IN ALL THE Investigation,
CRIMINAL APPEALS SPE/CBI/EOW/Chennai,
(Complainant before Represented by the Office of
Trial Court): the Public Prosecutors,
CBI Head Quarters, RT Nagara,
Bengaluru.
(By Public Prosecutor.)
COMMON JUDGMENT IN CRIMINAL APPEAL
NOs.74/2013, 76/2013 & 84/2013
All these 3 Appeals are filed against the Judgment of
Conviction and Sentence passed by the XVII Additional
Chief Metropolitan Magistrate and Special Court for CBI
Cases, Bengaluru (for short 'the Trial Court') in
C.C.No.19957/2008 on 17.01.2013 convicting and
sentencing the Accused-1, 6, 7 & 8 for the offence
3 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
punishable under Sections 120-B and 420 of the Indian
Penal Code, 1860 (for short, 'the IPC'), the Accused-1, 6
& 7 for the offence punishable under Sections 467, 468 and
471 of the IPC and the Accused-8 for the offence
punishable under Section 419 of the IPC.
2. As the Respondent in all these 3 Appeals is one
and the same person, as all these 3 Appeals are from a
common Judgment passed by the Trial Court, as the
evidence relied upon by both the parties is one and the
same in all these Appeals and as the contentions of all the
parties of these Appeals are similar, for the sake of
convenience, these Appeals are taken together for disposal
through a Common Judgment.
3. The Appellant in Criminal Appeal No.74/2013 was
the Accused-7, the Appellant in Criminal Appeal
No.76/2013 was the Accused-1 and the Appellants-1 & 2 in
Criminal Appeal No.84/2013 were the Accused-6 and 8
respectively in C.C.No.19957/2008 before the Trial Court.
The Respondent of all these Appeals was the Complainant
in C.C.No.19957/2008 before the Trial Court. For the sake
of convenience, parties of all these Appeals are referred to
as per their rank before the Trial Court.
4. Before the Trial Court, the Complainant filed
Charge Sheet alleging that the Accused-1 to 9 entered into
Criminal Conspiracy in the month of June 2004 in order to
Cheat the Syndicate Bank, Frazer Town Branch, Bengaluru
4 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
(for short, 'the Bank') by availing OD facility of Rs.150
Lakhs by using forged and fabricated documents and also
cheating by personation and that in pursuance of the said
Criminal Conspiracy, the Accused-1 to 9 committed all
those illegal acts and that thereby, the Accused-1 to 9 have
committed offences punishable under Sections 120-B r/w.
419, 420, 465, 468 and 471 of the IPC.
5. After furnishing Copies of Charge Sheet to the
Accused-1 to 9 and after hearing both the sides before
framing Charge, the Trial Court framed Charge against the
Accused-1 to 9 for the offence punishable under Sections
120-B, 419, 420, 467, 468 and 471 of the IPC, for the
offence punishable under Sections 420 r/w. 120-B, 467
r/w. 120-B and also 468 and 471 r/w. 120-B of the IPC.
When the said Charge was read over and explained to the
Accused-1 to 9, they did not plead guilty and claimed trial.
6. During trial before the Trial Court, the Complainant
got examined 42 Witnesses as P.W.1 to P.W.42 and got
marked 248 Documents as Ex.P.1 to Ex.P.248 on his
behalf. With that evidence, the Complainant closed his side.
On examination of the Accused-1 to 9 under Section 313 of
the Code of Criminal Procedure, 1973 (for short, 'the
Cr.P.C.), the Accused-1 to 9 denied all the incriminating
evidence placed against them. But, they did not choose to
examine any witnesses on their behalf. However, they got
marked 2 documents as Ex.D.1 and Ex.D.2 on their behalf.
5 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
With that evidence, the Accused-1 to 9 also closed their
side.
7. After hearing arguments of both the sides, the
Trial Court passed Judgment on 17.01.2013 acquitting the
Accused-2, 3, 4, 5 and 9 for the offence punishable under
Sections 120-B, 419, 420, 467, 468 and 471 of the IPC and
convicting and sentencing the Accused-1, 6, 7 and 8 as
under:
1. For the offence punishable under Section
120-B of the IPC, the Accused-1, 6, 7 and 8
shall undergo Simple Imprisonment for a
period of 6 months and pay a fine of
Rs.500/- each and undergo Simple
Imprisonment for a period of 1 month in
default to pay fine amount;
2. For the offence punishable under Section
420 of the IPC, the Accused-1, 6, 7 and 8
shall undergo Simple Imprisonment for a
period of 1 year and pay a fine of Rs.1,000/-
each and undergo Simple Imprisonment for
a period of 2 months in default to pay fine
amount,;
3. For the offence punishable under Section
467 of the IPC, the Accused-1, 6 and 7 shall
undergo Simple Imprisonment for a period
of 1 year and pay a fine of Rs.1,000/- each
6 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
and undergo Simple Imprisonment for a
period of 2 months in default to pay fine
amount;
4. For the offence punishable under Section
468 of the IPC, the Accused-1, 6 and 7 shall
undergo Simple Imprisonment for a period
of 1 year and pay a fine of Rs.1,000/- each
and undergo Simple Imprisonment for a
period of 2 months in default to pay fine
amount;
5. For the offence punishable under Section
471 of the IPC, the Accused-1, 6 and 7 shall
undergo Simple Imprisonment for a period
of 6 months and pay a fine of Rs.500/- each
and undergo Simple Imprisonment for a
period of 1 month in default to pay fine
amount;
6. For the offence punishable under Section
419 of the IPC, the Accused-8 shall undergo
Simple Imprisonment for a period of 6
months and pay a fine of Rs.500/- and
undergo Simple Imprisonment for a period
of 1 month in default to pay fine amount.
8. Aggrieved by the said Judgment of conviction and
sentence, the Accused-1, 6, 7 and 8 have filed all these
Appeals.
7 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
9. Sum and substance of the grounds urged by the
Accused-1 in his Appeal are as follows:
The Judgment of conviction and sentence passed by
the Trial Court is opposed to all cannons of facts and
circumstances of the case. The said Judgment is arbitrary,
vexatious and perverse. The Trial Court has failed to see
that there must be a meeting of mind of the Accused-1
with the Accused-6 and 7 in order to convict him for the
offence punishable under Section 120-B of the IPC. The
Trial Court has erred in relying upon the Confession
Statement of the Accused-6 and 7 to implicate the
Accused-1. The Trial Court has committed an error in
convicting the Accused-7 for the offence punishable under
Sections 420, 467, 468 and 471 of the IPC, though the
Complainant did not place any providence to prove the
ingredients of those offences. The Trial Court has failed to
note that the entire transaction between the Bank and the
Accused-1 is of civil in nature and that the Complainant
misused the said transaction as a criminal offence to get rid
of the responsibilities of P.W.2, P.W.6, P.W.8, P.W.16 and
P.W.39. The Trial Court has not properly appreciated the
evidence of P.W.6, P.W.7, P.W.17, P.W.19, P.W.31,
P.W.35, P.W.37 and P.W.38, which is in favour of the
Accused-1. The Trial Court has not properly appreciated
the DRT Proceedings in ASA No.87/2006 and also the fact
that the entire amount was cleared to the Bank, which
shows that the Accused-1 had no fraudulent or dishonest
intention to deceive the Bank. The Trial Court has failed to
see that P.W.41 has compared the signatures in the
8 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
absence of admitted signatures, which is contrary to the
procedure for the Handwriting Expert. The Trial Court has
erred in convicting the Accused-1 in the absence of
evidence of Sri.Krishnappa. The Trial Court has not at all
looked into the Cross-examination made on behalf of the
Accused-1. The Trial Court has not properly appreciated
the admission of P.W.26 about the identity of the Accused-
8. Even otherwise, the entire materials placed on record by
the Complainant in support of his case is lacking of all the
ingredients of the offences and hence, the Trial Court has
erred in convicting the Accused-1.
10. Sum and substance of the grounds urged by the
Accused-6 & 8 in their Appeal are as follows:
The Judgment of the Trial Court is illegal, unjust and
against the settled principles of law and also the
fundamentals of the Criminal Jurisprudence. The Trial
Court has failed to appreciate the evidence that was
brought on record from the side of the Prosecution. The
Trial Court has wrongly interpreted the entire case and
interpreted the whole case in the manner of a civil case.
The Trial Court has not looked into the Cross-examination
made on behalf of the Accused. The Trial Court has failed to
appreciate the evidence of witnesses, who had deposed in
terms of the identity of the Accused-8. Though P.W.26 has
identified the Accused-8 as 'Krishnappa @ Basavannappa',
the Trial Court has not considered the same. The Trial
Court has come to imaginary conclusion based on the
9 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
statements of the co-Accused made under Section 164 of
the Cr.P.C. The Trial Court has interpreted the evidence on
record to its tunes and the tunes of the case of the
Prosecution in terms of the allegation set forth. The Trial
Court has ignored that the Prosecution has not produced
any piece of material to show that the property in dispute
was a BDA property as claimed by the Complainant. The
Trial Court has erred in coming to conclusion in its entirety
that the Accused-6 has no role whatsoever, apart from the
Confession Statement. But, the Trial Court ought to have
borne in mind the statements of all the witnesses, facts and
circumstances and also the payments as admitted, while
giving its verdict. The Trial Court has erred in looking into
the Exemption Applications and the 313 Statements to
come to conclusion that the name of the Accused-8 is
Basavannappa by ignoring the evidence available on
record. Without assigning any reasons whatsoever, the
Trial Court has convicted the Accused-6 and 8. Hence,
Judgment of conviction and sentence passed by the Trial
Court is liable to be set aside.
11. Sum and substance of the grounds urged by the
Accused-7 in his Appeal are as follows:
The Judgment of the Trial Court is illegal, unjust and
against the settled principles of law. The Trial Court has
given a go by to the basic principles of law that the
Prosecution has to prove the case beyond any reasonable
doubt and that the benefit of doubt shall be given to the
10 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Accused. The Trial Court has failed to appreciate the facts
and circumstances of the case and it has wrongly
interpreted the entire case as if it is a civil case. The Trial
Court has not looked into the Cross-examination portion of
the evidence given by the witnesses. The Trial Court has
failed to appreciate the facts of the witnesses, who had
deposed in terms of the identity of the Accused-8. Though
P.W.26 has clearly deposed about identity of the Accused-8
as 'Krishnappa @ Basavannappa', the Trial Court has not
considered the same. The Trial Court has come to
imaginary conclusion based on the statements of the co-
Accused made under Section 164 of the Cr.P.C. The Trial
Court has failed to appreciate that the Accused-7 has
nothing to do with any of the transactions of the firm of the
Accused-1 to 5. The Trial Court has erred in coming to a
conclusion that the Accused-7 was monetarily benefited
through Ex.P.56, which was cleared as a Bearer Cheque.
The Trial Court ought to have borne in mind all the
statements of all the witnesses, facts and circumstances
and admissions as admitted and payments while giving its
verdict. The Trial Court has convicted the Accused-7 by
relying upon the statement of the co-Accused, though
there is no material against him. Hence, Judgment of
conviction and sentence passed by the Trial Court against
the Accused-7 is liable to be set aside.
12. In view of the death of the Accused-8, i.e.,
Appellant-2 of Criminal Appeal No.84/2013, this Court
passed an Order on 21.12.2013 deleting the Accused-8
11 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
from the Appeal. As such, the Appeal of the Accused-8
stands abated due to his death after filing of the Appeal.
13. Heard arguments of both the sides. Records
perused.
14. The learned Counsel appearing on behalf of the
Accused-1 has relied upon the following citations:-
1. George Zacharia @ Raju
Karuvamplakka -Vs- T.K.Varghese
& Another [1994(3) Crimes 758];
2. State of Punjab -Vs- Jagjit Singh
[1994(1) Crimes 186];
3. CBI, ACB, Mumbai -Vs- Narendra
Lal Jain & Others [2014(3) KCCR
SN 176 (SC)];
4. Vasudeo Kulkarni -Vs- Surya Kant
Bhatt and Another [AIR 1977 SC
1760];
5. Ramesh Bhai Atmaram Vaghela -
Vs- State of Gujarat & Another
[2012 Crl.L.J. 2386];
6. Madhavrao Jiwaji Rao Scindia and
Another, etc. -Vs- Sambhajirao
Chandrojirao Angre and others,
etc., [AIR 1988 SC 709];
7. Ram Jas -Vs- State of Uttar
Pradesh [1974 SC 1811];
8. Basappa -Vs- State of Karnataka
[ILR 1995 Kar. 2266].
12 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
15. Sum and substance of the principles laid down in
the decisions of the above citations are as follows:-
If the dispute is of civil nature and the
ingredients of Sections 419 and 420 of the
IPC are not made out, it is not right to
interfere with the acquittal of the Accused;
Simple refusal of the Accused to give
specimen signatures or specimen
handwriting is of no consequence, especially
when the signature and handwriting of the
Accused were available in the record;
In respect of allegation of obtaining loan by
inflating credit worthiness, if the parties
settled their civil liability to pay amount
amicably and if the Bank does not have
subsisting grievance, exercising of inherent
power by the High Court quashing under
Section 482 relating to the offences
punishable under Sections 420 and 120-B of
the IPC is not faulty or erroneous;
If the case of the Prosecution is doubtful, the
Accused is entitled to benefit of doubt;
If the alleged Breach of Trust constitutes only
civil wrong, proceedings have to be quashed;
To convict the Accused for the offence of
Cheating by personation, it is necessary to
prove all the ingredients of Section 415 of the
IPC;
In the absence of examination of vital
witnesses, Prosecution must fail and benefit
of doubt must go to the Accused;
Mere failure to fulfill promise subsequently is
not cheating;
To hold a person guilty of cheating, it is
necessary to show that he had fraudulent or
dishonest intention at the time of making the
promise.
13 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
16. The learned Counsel appearing on behalf of the
Accused-6 and 7 has relied upon the following citations:-
1. Chandrakant Chimanlal Desai -Vs-
State of Gujarat [(1992) 1 SCC
473];
2. State of Himachal Pradesh -Vs- Jai
Lal and Others [AIR 1999 SC
3318(1)];
3. Ramesh Bhai Atmaram Vaghela -
Vs- State of Gujarat and Another
[2012 Crl. L.J. 2386];
4. Gian Mahtani and Another -Vs-The
State of Maharashtra and Another
[1971(2) SCC 611];
5. Bhagwan Singh and Others -Vs-
State of Madhya Pradesh [AIR
2003 SC 1088(1)];
6. Gobardhan Rajbanshi -Vs- State of
Jharkhand (2002 Crl.L.J.3301);
7. Devendra Prasad Tiwari -Vs- State
of Uttar Pradesh[AIR 1978 SC
1544];
8. Govinda Pradhan and Another -Vs-
State of Orissa [1991 Crl.L.J. 269].
17. Sum and substance of the principles laid down in
the decisions of the above citations are as follows:-
Evidence of Handwriting Expert is not
decisive, unless Prosecution version is
believable;
14 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
In order to bring the evidence of a witness as
that of an expert, it has to be shown that he
has made a special study of the subject or
acquired a special experience therein or in
other words that he is skilled and has
adequate knowledge of the subject. An
expert is not a witness of fact. His evidence
is really of an advisory character;
Confession evidence can be used in support
of other evidence. Court should first marshal
the evidence against the Accused excluding
the consideration from confession. If on such
consideration, conviction can safely be based,
then only confession can be used to support
that belief or conclusion;
Confession not recorded in proper form,
possibility of putting pressure on the Accused
to give confession and retracting of that
confession by the Accused subsequently is
not sufficient to prove guilt and involvement
of the Accused;
Voluntariness of confession not ascertained
by the Magistrate at the time of recording
confession amounts to non-compliance of
Section 164 of the Cr.P.C., and the said defect
cannot be cured by examination of Magistrate
as witness;
Before a confessional statement made under
Section 164 of the Cr.P.C., can be acted upon,
it must be shown to be voluntary and free
from police influence;
At the time of recording the confession by the
Magistrate, the Investigating Officer
accompanying the Accused to Jail and back to
Magistrate and time of 5 to 10 minutes only
was given to the Accused for cool reflection.
Such a Confession Statement of the Accused
is liable to be rejected.
18. Keeping in view the above principles of law, this
case is dealt with.
15 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
19. On considering the grounds urged by the Accused-
1, 6 and 7 and also the arguments advanced on behalf of
both the parties, the Points that arise for determination in
these Appeals are as follows:
1. Whether the Trial Court has committed error
in holding that the Accused-8 has cheated by
personation, as appealed?
2. Whether the Trial Court has committed error
in holding that the Accused-1, 6 and 7
committed forgery, as appealed?
3. Whether the Trial Court has committed error
in holding that the Accused-1, 6 and 7 used
the forged documents as genuine documents
knowing or having reason to believe to be
forged documents, as appealed?
4. Whether the Trial Court has committed error
in holding that the Accused-1, 6 and 7
cheated the Bank, as appealed?
5. Whether the Trial Court has committed error
in holding that the Accused-1, 6 and 7
committed Criminal Conspiracy with the
Accused-8 to Cheat the Bank by way of
Personation, Forgery and using Forged
Documents as Genuine Documents, as
appealed?
6. Whether the Conviction and Sentence
passed by the Trial Court against the
Accused-1, 6 and 7 are illegal, as appealed?
7. What Order?
20. Findings of this Court on the above Points are as
follows:
16 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Point No.1 : Negative;
Point No.2 : Negative;
Point No.3 : Negative;
Point No.4 : Negative;
Point No.5 : Negative;
Point No.6 : Affirmative;
Point No.7 : See final portion of this Judgment.
REASONS
UNDISPUTED FACTS
21. M/s. Shree Krishna Enterprises is a Firm carrying
on the business of wholesale distribution of Liquor. The
Accused-1 is the Managing Director and the Accused-2 to 5
are the Partners of the said Firm.
22. In the year 2003, the Accused-1 to 5 availed OD
facility to the tune of Rs.30,00,000/- in the name of their
firm at Canara Bank, Vasantha Nagara Branch, Bengaluru.
Properties of the Accused-2, 4 and 5 were mortgaged to
that Bank as security for the said credit facility.
23. In the year 2004, the Bank sanctioned OD facility
to the tune of Rs.100 Lakhs including taking over the
liability of the Accused-1 to 5 with Canara Bank, Vasantha
Nagara Branch. 3 Properties of the Accused-2, 4 and 5,
which were mortgaged to Canara Bank, were mortgaged to
17 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
the Bank. In addition to that security, the Accused-8
mortgaged property bearing No.75 said to be situated at
12th Cross, Vijaya Nagara, Bengaluru-43, as security in
respect of the OD facility granted by the Bank to the
Accused-1 to 5.
24. As the Accused-1 to 5 failed to repay the dues to
the Bank, the Bank filed a case before the Debt Recovery
Tribunal for recovery of dues. The Accused-2, 4 and 5
brought Stay Order for auction of their properties given as
security to the Bank. However, the property mortgaged by
the Accused-8 to the Bank was auctioned. In that auction
M/s.SBG Impex Private Limited (for short, 'the
Purchaser') purchased that property for Rs.1.6 Crores.
25. As the said auction amount was in excess of dues
to the Bank, the Bank called upon the Accused-1 to 5 and 8
to take refund of the excess amount. The Accused-8 filed
an Application seeking refund of that excess amount. The
Accused-1 to 5 said 'No Objection' for such payment to the
Accused-8.
26. Meanwhile, Khatha of the property purchased by
the Purchaser was not changed by the BBMP on the ground
that no such property was in existence and that the
documents of that property were forged. Due to the said
reason, the Purchaser approached the Bank for cancellation
of the auction transaction and also for refund of the amount
18 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
deposited by him. The Bank refunded the deposited amount
to the Purchaser.
27. An internal enquiry was conducted in the Bank by
P.W.4-Sri.S.Madan, Vigilance Officer and he submitted
Report as per Ex.P.57 and on the basis of that Report,
P.W.1-Sri.S.Seetharamu lodged Complaint as per Ex.P.1 to
the Complainant. P.W.40-Sri.T.Murugeshan conducted
investigation and filed Charge Sheet. After trial, the Trial
Court acquitted the Accused-2 to 5 and 9 and convicted the
Accused-1, 6, 7 and 8.
28. All the above facts are not under dispute.
POINT-1
29. As observed above, it is not in dispute that the
Accused-8 stood as Guarantor to the credit facility taken by
the Accused-1 to 5 in the name of the firm from the Bank.
It is also not in dispute that he has executed Ex.P.9,
Ex.P.13, Ex.P.25 to Ex.P.30, Ex.P.38 and Ex.P.104 in the
name of Krishnappa by giving his father's name as
'Narappa', daughters names as 'Umadevi and Nagarathna'
and that by giving his address as 'No.75, 12th Cross,
Vijayanagara, Bengaluru-40'. According to the Complainant,
the Accused-8 is 'Basavanna @ Basavannappa, son of late
Siddappa' and resident of No.8/4, Azad Nagara,
Chamarajpet, Bengaluru and he is not 'Krishnappa' as
described in the Loan documents referred to above.
According to the Complainant, the Accused-8 has cheated
19 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
by personating as 'Krishnappa' in the said credit transaction
with the Bank. On the other hand, the Accused-1, 6, 7 and
8 have denied the said contention of the Complainant. It is
the contention of the Accused-8 that his name is
'Basavannappa @ Krishnappa'. As such, now it has to be
seen as to whether the Accused-8 is 'Basavanna @
Basavannappa' as claimed by the Complainant or
'Basavanna @ Krishnappa' as claimed by the Accused-8.
30. The Complainant has strongly relied upon the
evidence of P.W.4 to substantiate his contention. As per
the instructions of the Chief Vigilance Officer, P.W.4-
Sri.S.Madan, who was the Senior Manager, Vigilance Unit of
Syndicate Bank, Bengaluru, conducted investigation about
the allegation of fraud relating to the said credit transaction
of the Accused-1 to 5 and 8 with the Bank. But, it is not
his evidence that the Accused-8 is 'Basavanna @
Basavannappa', he is not 'Krishnappa' and that he
personated as 'Krishnappa'. However, he has deposed that
during investigation, he visited the property of Krishnappa
along with Branch Officials-Sri.A.J.Ashok Kumar and P.W.2-
Sri.M.Kemparaju and that during that visit, it was learnt
from one Narayanappa that the property owner-Krishnappa
was residing in a nearby place and that then, he and his
colleagues visited the house of that Krishnappa and that
there they found that one Krishnappa was living in that
house, who was different person from the person and that
who executed the documents in the Bank. He has further
deposed that said Krishnappa informed that he had no
20 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
property or land in that area as he had sold the same long
back and that as such, it was clear that a different person
personating as Krishnappa executed documents in the Bank
in respect of non-existing property. According to P.W.4, a
Visit Report as per Ex.P.61 and Enquiry Report as per
Ex.P.57 were prepared and submitted to the Bank.
31. In the Cross-examination, P.W.4 has stated that
he did not prepare Mahazar at the spot, when he visited
the property of Krishnappa, and that he prepared Visiting
Report in the Bank. He has stated that he collected Photo
of Krishnappa and submitted to the Bank along with
Ex.P.57. But, the said Photo is not produced in this case.
He has stated that he did not record the statements of
Narayanappa, Krishnappa or any one near the property of
Krishnappa. He has not taken signatures of Krishnappa,
Narayanappa or any other independent person to Ex.P.61.
There is no explanation from P.W.4 in this regard. If at all
the things had happened as stated by P.W.4, he would
have recorded such statements and taken such signatures
to Ex.P.61. As he has not done so, a serious doubt arises
about his evidence.
32. P.W.2 has given his evidence and produced 56
documents pertaining to this case. But, it is not his
evidence that he accompanied P.W.4 during investigation,
he met Narayanappa and Krishnappa and that he came to
know that some one personating as Krishnappa executed
the documents in the Bank as stated by P.W.4. On the
21 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
other hand, in his Cross-examination at Page-11, he has
specifically stated that during loan transaction or when the
mortgage was created or at the time and subsequent to
DRT Proceedings, he never met Krishnappa. Though P.W.4
has stated that P.W.2 and Sri.Ashok Kumar are also the
signatories to Ex.P.61 and though he identified those
signatures as Ex.P.61(b) and Ex.P.61(c), P.W.2 has not
whispered about the same. As such, it is clear that the
evidence of P.W.2 and P.W.4 is inconsistent with and runs
contrary to each others evidence, which also creates a
serious doubt in the evidence of P.W.4. Sri.Ashok Kumar,
Sri.Narayanappa and Sri.Krishnappa son of Narappa,
referred to by P.W.4, have not come forward to support the
version of P.W.4. As P.W.4 has not stated anything against
the Accused-8 either in respect of his name or about the
allegation that the Accused-8 personated as 'Krishnappa'
and as it is not his evidence also that he had met and
enquire the Accused-8 at any point of time and as there are
doubtful circumstances in the evidence of P.W.4, it is not
safe to rely upon his evidence. But, by ignoring all these
aspects, the Trial Court has erroneously accepted the
evidence of P.W.4 in favour of the Complainant.
33. The Complainant has also relied upon the
evidence of P.W.26 in support of his contention that the
Accused-8 is 'Basavanna @ Basavannappa' and not
'Krishnappa'. P.W.26 is working as a Security Guard in the
Parking Section of Ramakrishna Lodge, Bengaluru. On the
date of his examination before the Court, the Accused-8
22 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
was absent. The learned APP confronted Photo-Ex.P.93 to
P.W.26 for identifying the Accused-8 in the Court. On
seeing that Photo, P.W.26 identified the Accused-8. He has
deposed that he was acquainted with the Accused-8 as he
was coming once in a week to the Lodge to have a cup of
Coffee and that he used to talk to him at that time. He has
deposed that the said person is 'Krishnappa', but, he had
also come across that certain people were calling him as
'Basavannappa' and that when he asked 'Krishnappa' about
his name, he told that he was called by both the names.
This witness has not stated that the Accused-8 is
'Basavanna @ Basavannappa' and not 'Krishnappa'. As
such, the evidence of this witness is of no assistance to the
Complainant. On the other hand, as this witness has stated
that the Accused-8 is 'Krishnappa' and that he is also called
as 'Basavannappa', evidence of this witness supports the
contention of the Accused-1, 6, 7 & 8 that the Accused-8 is
'Krishnappa @ Basavannappa'. The Trial Court did not
accept the said evidence of P.W.26 in favour of the
Accused-1, 6, 7 and 8 by opining that P.W.26 has been
won over by the Accused-1, 6, 7 and 8 and that he was not
speaking truth. It is not the contention of the Complainant
himself that P.W.26 has been won over by the Accused-1,
6, 7 and 8 and that he was not speaking truth. To come to
such an opinion, the Trial Court has relied upon the
Statement recorded by the Investigating Officer under
Section 161 of the Cr.P.C., during investigation and given
reason that P.W.26 has not stated in that Statement that
the name of the Accused-8 as 'Krishnappa'. The said
23 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Statement is not admitted in the evidence as per Proviso to
Section 162(1) of the Cr.P.C. Though the said Statement
cannot be used for any purpose as per Section 162(1) of
the Cr.P.C., the Trial Court has erroneously used and relied
upon that Statement to form an opinion that P.W.26 has
been won over by the Accused-1, 6, 7 and 8. Thus, the
Trial Court has committed error by not appreciating the
evidence of P.W.26 properly.
34. The Complainant has also relied upon the
evidence of P.W.40, who has investigated this case. In his
evidence, though P.W.40 has stated that he secured the
Accused-8, interrogated him and recorded his Statement,
he has not stated that the Accused-8 is not 'Krishnappa'
and that he is 'Basavanna @ Basavannappa'. P.W.39 was
working as DGM of Syndicate Bank, Regional Office,
Bengaluru, from 2006 to 2008. According to him, as per
Ex.P.78-Circular of Syndicate Bank, while opening the
Account of borrower or guarantor, KYC has to be complied
and documents like Photo and Residential Address Proof
have to be obtained. In his Cross-examination, P.W.39 has
stated that custodian of the documents relating to KYC is
the Officer in the Branch concerned, documents relating to
KYC either of the borrower or the guarantor would not
move out of the Bank and that every Manager is bound to
follow Ex.P.78. It is not the contention of the Complainant
that KYC documents are not obtained by the Bank in
respect of the Accused-8, while he was taken as guarantor
to the credit facility of the Accused-1 to 5. In the Cross-
24 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
examination, P.W.40 has specifically admitted that from the
Bank, he could have obtained the I.D. Proof of 'Krishnappa
@ Basavannappa' and that he has not done it. There is no
explanation from him from not collecting KYC documents to
know the identity of the Accused-8. Even otherwise, P.W.40
could have collected documents such as Voters' I.D. Card,
Ration Card etc., from the public Office to know his
identity. But, he has not done so. As the said KYC
documents or other identity documents relating to the
Accused-8 are very material to this case and as P.W.40 has
not collected the said documents, an adverse inference has
to be drawn against the Complainant. Non-collection of
such identity documents by P.W.40 throws a serious doubt
in the case of the Complainant.
35. In the Cross-examination, the learned counsel
appearing on behalf of the Accused-6 to 8 confronted
Ex.D.1-Certificate with Photo of the Accused-8, said to have
been issued by Gandhi Old Age Home on 04.10.2012. By
confronting that Photo, it was suggested to P.W.40 that the
person seen in the Photo of that document was the person,
whom he examined as 'Krishnappa @ Basavannappa'.
P.W.40 has admitted the said suggestion. Apart from that
admission, in his Cross-examination, P.W.40 has referred
the name of the Accused-8 as 'Krishnappa @
Basavannappa' for more than 10 times. These admissions
negative the contention of the Complainant and fortify the
contention of the Accused-1, 6, 7 and 8. The Trial Court
did not accept the said admission by stating that P.W.40
25 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
has clearly deposed that the Accused-8 has impersonated
as 'Krishnappa'. But, the evidence of P.W.40 does not show
such a Statement from him.
36. P.W.40 has stated that he took specimen
signatures of Krishnappa, who is the original owner of the
property mortgaged to the Bank by the Accused-8, as per
Ex.P.237. As per Ex.P.62 and Ex.P.136, said Krishnappa is
the son of Narappa. The Accused-8 has executed the
documents in the name of 'Krishnappa son of Narappa'
only. As such, according to the Complainant, the original
owner of the property mortgaged to the Bank is
'Krishnappa son of Narappa'. But, in his Cross-examination
at Page-23, P.W.40 has stated that he recorded the
Statement of Krishnappa, he did not collect any identity
documents of Krishnappa, the person whom he met was
'Krishnappa son of Narayanappa' and that he did not meet
any person by name 'Krishnappa son of Narappa'. These
answers of P.W.40 show that he never met 'Krishnappa son
of Narappa', who is said to be the original owner of the
property mortgaged to the Bank. As he did not meet
'Krishnappa son of Narappa', his evidence is of no
assistance to the Complainant to show that the Accused-8
personated as 'Krishnappa son of Narappa'. Though P.W.40
has stated at Page-23 that he recorded the Statement of
'Krishnappa', at Page-24, he has stated that he did not
record his Statement and that he did not make him as a
witness as he was 90 years old and sick person. This
Statement of P.W.40 contradicts his earlier Statement.
26 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
This circumstance also creates a serious doubt in the
evidence of P.W.40. Nothing prevented P.W.40 to collect
identity documents of said 'Krishnappa son of
Narayanappa', who is said to be the original owner of the
property in dispute. But, he has not done so. In Page-38
of his evidence, P.W.40 has stated that 'Krishnappa son of
Narayanappa' has 2 sons. If at all the said Krishnappa was
unable to give his Statement and to depose before the
Court as a witness due to his old age and sickness, as
stated by P.W.40, P.W.40 could have examined any one of
those 2 sons of Krishnappa and made them as witnesses in
this case. But, he has not done so. There is no explanation
from P.W.40 in respect of these lapses. As the evidence of
Krishnappa, his identity documents and the evidence of
sons of Krishnappa are very material to this case, non-
placing of such evidence by P.W.40 creates a serious doubt
in the case of the Complainant. The benefit of all these
doubts must go to the Accused-8.
37. P.W.42-Sri.Mallanagowda Shankaragowda Patil
was working as XVII ACMM, Bengaluru, from May 2005 to
May 2009. On the Requisition of P.W.40, P.W.42 recorded
the Confession Statement of the Accused-6 on 27.06.2008
as per Ex.P.244(a) and that of the Accused-8 on
31.07.2008 as per Ex.P.245(a). Ex.P.244 and Ex.P.245 are
the Order Sheets maintained by P.W.42 in respect of those
statements. As P.W.42 recorded those statements by
administering oath to the Accused-6 and 8, P.W.40
requested P.W.42 to record the statements of the Accused-
27 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
6 and 8 once again on the ground that those statements
were not in accordance with law. By considering that
Requisition, P.W.42 recorded Confession Statement of the
Accused-6 as per Ex.P.247 and that of the Accused-8 as
per Ex.P.248 on 20.09.2008. Ex.P.246 is the Order Sheet
maintained by P.W.42 in respect of the said proceedings.
As Ex.P.244(a) and Ex.P.245(a) have been recorded after
administering oath to the Accused-6 and 8, they have no
evidentiary value and hence, those statements have to be
ignored.
38. The learned Public Prosecutor has strongly relied
upon the evidence of P.W.42 and also Ex.P.247 and
Ex.P.248 to substantiate her arguments on the ground that
the Accused-6 and 8 have stated in their Confession
Statements that the Accused-8 is 'Basavanna @
Basavannappa' and that he personated as 'Krishnappa' in
the Bank. The Accused-6 and 8 have retracted the said
statements during their Examination under Section 313 of
the Cr.P.C., by contending that on the threat and pressure
of P.W.40, they gave such statements and that they did not
give such statements voluntarily.
39. P.W.42 has deposed that he directed P.W.40 to
produce the Accused-6 and 8 for recording their statements
once again and that accordingly, they were produced on
11.09.2008. P.W.42 has further deposed that he informed
the Accused-6 and 8 that they are not bound to give any
statement before him and that if such statement was given,
28 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
it would be used against them and that then the Accused-6
and 8 agreed to give statement voluntarily and with free
will. He has further deposed that he informed the Accused-
6 and 8 to appear on 20.09.2008 to give their statements,
if they desire so and that on 20.09.2008, when the
Accused-6 and 8 appeared before him, he again informed
that they are not bound to give statement before him and
that if given, it would be used against them, but, they
agreed to give statement before him and that after
confirming the same and that after ascertaining that no
Police Officer was available in the open Court, he decided to
record their statements under Section 164 of the Cr.P.C.,
and that thereafter, he recorded the statements of the
Accused-6 as per Ex.P.247 and that of the Accused-8 as
per Ex.P.248. He has further deposed that he read over
the contents of those statements to the Accused-6 and 8,
for which, they agreed and admitted the contents as true
and correct and that then, he took signatures of the
Accused-6 and 8 to those statements.
40. As per 164(2) of the Cr.P.C., it is mandatory on
the part of the Magistrate to question the Accused, who
wants to give Confession Statement, so as to satisfy
himself that the Accused wants to give Statement
voluntarily. As per Chapter-V and Rule-5 of the Karnataka
Criminal Rules of Practice, 1968, the Magistrate shall put
the following questions to the Accused:
(i) When were you arrested?
29 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
(ii) When did the Police first questioned you?
(iii) How often did they question you?
(iv) Were you detained anywhere before you
were taken to custody? If so, when and
where?
(v) Were you induced to make a Confession
Statement and are you making the
Statement as a result of any ill-
treatment?
As per that Rule, the Magistrate shall reduce the questions
as well as the answers given by the Accused to those
questions in writing and after questioning so and only after
satisfying himself that the Accused wants to give his
Statement voluntarily without any pressure, then only the
Magistrate has to proceed to record his Statement. The
evidence of P.W.42 and contents of Ex.P.246 to Ex.P.248
show that except telling the Accused-6 and 8 that they
were not bound to give such statements and that if given,
the same may be used against them, P.W.42 did not put
any questions to the Accused-6 and 8 to ascertain and to
satisfy himself about the voluntariness of the Accused-6
and 8 in giving such confessions. In fact, P.W.42 did not
question the Accused-6 and 8 as to why they were making
such confessions. As such, it is clear that P.W.42 did not
comply the mandatory procedure as contemplated in
Section 164(2) of the Cr.P.C., and Chapter-V and Rule-5 of
the Karnataka Criminal Rules of Practice, 1968, which is
fatal to the case of the Complainant.
30 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
41. It is no doubt true that P.W.42 has deposed that
there were no Police Officers in the Court, while he was
recording the statements of the Accused-6 and 8. But,
P.W.40 has admitted in his Cross-examination at Page-19
that from June 2008 to September 2008, he was in
constant touch with the Accused-6 and 8 over Phone. As
such, it is clear that during the period when P.W.42
recorded the Confession Statements of the Accused-6 and
8, P.W.40 was in constant touch with the Accused-6 and 8.
Ex.D.2 is the Counter filed by P.W.40 on behalf of the
Complainant on 06.09.2008 to the Anticipatory Bail
Application filed by the Accused-6 and 8. In that Counter,
the Complainant has said 'No Objection' for granting
Anticipatory Bail to the Accused-6 and 8. All these
circumstances do not rule out the influence or pressure of
P.W.40 over the Accused-6 and 8 in giving their
statements.
42. As there is no compliance of Section 164(2) of
the Cr.P.C., and Chapter-V and Rule-5 of the Karnataka
Criminal Rules of Practice, 1968 by P.W.42 while recording
Confession Statements of the Accused-6 and 8, as
observed above, and as possibility of the influence or
pressure of P.W.40 over the Accused-6 and 8 during
recording of their statements by P.W.42 cannot be ruled
out, as observed above, it is not safe to act upon Ex.P.247
and Ex.P.248 in view of the decisions referred to above.
Even otherwise, as there is no other independent
acceptable evidence to show that the Accused-8 is not
31 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
'Krishnappa' and that he is 'Basavanna @ Basavannappa'
and that he personated as 'Krishnappa', Confession
Statements alone are not fit to be used to accept the
contention of the Complainant about personation, in view of
the decisions referred to above. Hence, Ex.P.247 and
Ex.P.248 are of no assistance to the Complainant to
substantiate his contention. The Trial Court has not at all
considered all these important legal aspects and
erroneously accepted the evidence of P.W.42 and contents
of Ex.P.247 and Ex.P.248 to conclude that the Accused-8 is
guilty of cheating by personation.
43. The learned Public Prosecutor has contended that
in Ex.P.9, Ex.P.13, Ex.P.25 to Ex.P.30, Ex.P.38, Ex.P.104,
Ex.P.126 and Ex.P.127, the Accused-8 has not mentioned
his name as 'Basavannappa @ Krishnappa' as contended by
him and that in several Applications filed before the Trial
Court as well as when he moved Anticipatory Bail and
Regular Bail, he did not disclose that his name is
'Basavanna @ Krishnappa' as contended by him, he has
signed as 'Basavanna' and that as such, it is clear that the
Accused-8 is not 'Krishnappa', but, he is 'Basavanna @
Basavannappa'. It is the argument of the learned Advocate
appearing on behalf of the Accused-8 that as Charge Sheet
is filed against the Accused-8 by showing his name as
'Basavanna @ Basavannappa', same name is mentioned in
the Applications filed on behalf of the Accused-8 and that
he has signed in the same name as 'Basavanna' and that as
such, much cannot be made against the Accused-8 in this
32 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
regard. It is no doubt true that it is common to call a
person having an official name in other nick names also. It
is a matter of common knowledge that majority of persons,
except educated persons, write their names as their
signatures without any special characteristics, if they are
asked to put their signatures. It is not the contention of
the Complainant that the Accused-8 is an educated person,
though he knows to put his signature. There is nothing on
behalf of the Complainant to show that apart from the
Court documents, referred to by the learned Public
Prosecutor, the Accused-8 has put his signature and shown
his name as 'Basavanna' or 'Basavannappa' in any
documents. As his name is shown in this case as
'Basavanna @ Basavannappa', he might have written his
name as 'Basavanna' in those documents when he was
asked to put his signature. Similarly, Applications might
have been filed in the name of 'Basavanna @
Basavannappa' under the presumption that as his name is
shown in the Charge Sheet as 'Basavanna @
Basavannappa', the same name has to be shown in those
Applications. As observed above, P.W.40 would have been
the best person to collect evidence about the identity of the
Accused-8 as contended by the Complainant. But, he has
not done so. On the other hand, he himself has referred in
his Cross-examination, as observed above, that the
Accused-8 is 'Krishnappa @ Basavannappa'. Under all these
circumstances, it is not possible to accept the bare
contention of the learned Public Prosecutor that the
33 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Accused-8 is 'Basavanna @ Basavannappa' and that he is
not 'Krishnappa' or 'Basavanna @ Krishnappa'.
44. As observed above, P.W.40 has committed
serious lapses during the investigation as he failed to
examine material witnesses and collect material documents
and those serious lapses have created serious doubts in the
case of the Complainant. The Trial Court did not give the
benefit of those doubts to the Accused-8 on the ground
that, as per the decisions of the Supreme Court of India in
the cases of State of Karnataka -Vs- K.Yarappa Reddy
[AIR 2000 SC 185], Ram Bali -Vs- State of UP [AIR
2004 SC 2329] and Kallu Alias Amit -Vs- State of
Haryana with Joginder and Another -Vs- State of
Haryana [2012 AIR SCW 4605], if there are lapses by
the Investigating Officer, the Court has to look into other
evidence, scrutinize it independently without the impact of
the investigation and that as there is sufficient evidence to
prove the guilt of the Accused-8, he cannot take advantage
of the lapses committed by the Investigating Officer i.e.,
P.W.40. It is true that merely because there are lapses
and defects in the investigation, the other acceptable
evidence available on record cannot be ignored or
discarded. But, in the case on hand, there is no any other
acceptable evidence on behalf of the Complainant, as
observed above, to show that the Accused-8 is Basavanna
@ Basavannappa and that he is not Krishnappa. Hence,
serious doubts arising out of material defects in the
investigation and serious lapses committed by P.W.40
34 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
cannot be ignored to deny the benefit of those doubts to
the Accused-1 as those doubts cut the root of the case of
the Complainant. As such, it is clear that the Trial Court
has committed a serious error in this regard.
45. As observed above, the evidence of P.W.4,
P.W.26, P.W.40 and P.W.42 is of no assistance to the
Complainant to show that the Accused-8 is not 'Krishnappa
son of Narappa', he is 'Basavanna @ Basavannappa son of
Siddaiah' and that he personated as 'Krishnappa son of
Narappa' while executing documents in favour of the Bank.
Hence, it is not fit to accept the bare contention of the
Complainant that the Accused-8 cheated by personation.
As observed above, the Trial Court has committed error in
not appreciating the evidence properly and it has failed to
give benefit of serious doubts, which go to the root of the
case of the Complainant, to the Accused-1, 6, 7 and 8. For
all these reasons, this Point is answered in the negative.
POINT-2
46. According to the Complainant, the Accused-1, 6
and 7 forged Ex.P.28 to Ex.P.30, Ex.P.62 to Ex.P.69. But,
those Accused have denied the said contention of the
Complainant.
47. Ex.P.62 is said to be the original Sale Deed dated
09.12.1950 executed by Sri.Patel Munivenkatappa in
favour of Sri.Krishnappa son of Sri.Narappa in respect of 6
35 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
items of properties. The learned counsel appearing on
behalf of the Accused-6 to 8 has contended that Ex.P.62,
which was intact when produced to the Bank, has been
tampered by the Bank officials as it indicates pasting of
cellotapes at 3 places of that document and that laminated
sheet of that document is found open. It is true that
Ex.P.62 is a laminated document, lamination sheet is found
open at the one end to some extent and that cellotapes
have been pasted at 3 places of that document so as to
join the pieces of that document. However, the learned
Counsel appearing on behalf of the Accused-6 to 8 did not
explain as to which portion of the contents of that
document are altered or tampered by way of affixing
cellotapes and opening of lamination sheet at the one end.
On careful scrutiny of Ex.P.62 and its contents, this Court
did not find any addition or removal of words or any other
type of alteration in the contents or status of Ex.P.62 by
such affixture of cellotapes or opening of one end of the
laminated sheet of Ex.P.62. It is also not pointed out by
the learned Counsel appearing on behalf of the Accused-6
to 8 as to what is the basis to contend that the Bank
officials have tampered Ex.P.62 after production in the
Bank. He has also not shown as to how and in what
manner Bank or its officials would get benefit from such
tampering. The Accused-8 has not stated as to what was
the status of Ex.P.62, when he gave that document to the
Bank. As Ex.P.62 is said to be and appears to be an old
document of more than 50 years, it appears that
cellotapes are affixed and lamination is made to preserve
36 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
the document safely while handling it and that opening of
one end of the lamination sheet may be due to defect in
lamination or mishandling the document. Under all these
circumstances, it is not fit to accept the bare argument of
the learned Counsel for the Accused-6 to 8 that Ex.P.62
has been tampered with by the Bank Officials after it was
produced by the Accused-8 to the Bank.
48. P.W.13 is the Sub-Registrar working in Peenya
Sub-Registrar's Office from 01.04.2007 to 01.04.2008. As
per his evidence, he was called to the CBI Office in the
year 2008 and that in that Office, he verified Ex.P.62 and
compared the same with Ex.P.136, Ex.P.137, Ex.P.138,
Ex.P.139 and Ex.P.140 and that on such comparison, he
found lot of differences in between Ex.P.62 and Ex.P.136
and that as such, he felt that Ex.P.62 is a fake or bogus
document and that it was not issued from the Sub-
Registrar's Office, Bengaluru North Taluk. Ex.P.136 is the
Certified Copy of Sale Deed dated 09.12.1950 executed by
Patel Munivenkatappa in favour of Krishnappa son of
Narappa in respect of 6 items referred to in Ex.P.62.
Ex.P.137 is the Certified Copy of Sale Deed dated
10.11.1943 executed by Narayanappa son of
Venkataramanappa in favour of Patel Munivenktappa in
respect of the same 6 items of properties. Ex.P.138 is the
Certified Copy of registered Sale Deed dated 03.05.1956
executed by Smt.Nanjamma and her adopted son-
Sri.Krishnappa in favour of Smt.Munilakshmamma in
respect of the same 6 items of properties. Ex.P.139 is the
37 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Certified Copy of Sale Deed dated 15.06.1953 executed by
Krishnappa son of Narappa in favour of Smt.Nanjamma
and her adopted son-Sri.Krishnappa in respect of the said
6 items of properties. Ex.P.140 is the Encumbrance
Certificate for the period from 01.04.1946 to 30.09.1966,
which shows the transactions of Ex.P.136 to Ex.P.139.
These Ex.P.136 to Ex.P.140 are the Certified Copies of
public documents, which have their own presumptive
value. Genuineness of these documents is not disputed by
the Accused-1, 6 to 8. As such, there is no impediment to
act upon Ex.P.136 to Ex.P.140.
49. Ex.P.62 indicates that it was registered in the
Sub-Registrar's Office, Bengaluru North Taluk. Ex.P.136 is
the Certified Copy of the Sale Deed in respect of the said
sale transaction dated 09.12.1950. This document also
shows that the said Sale Deed was registered in the Sub-
Registrar's Office, Bengaluru North Taluk. P.W.13 has
stated that Sri.S.V.Govinda Gupta was the Sub-Registrar
at that time. Ex.P.136 and Ex.P.139 contain the signatures
of said Sri.S.V.Govinda Gupta. But, the said signature is
not found in Ex.P.62. There is signature in Ex.P.62, which
is said to be the signature of Sub-Registrar. But, that
signature is totally different from that of the signature of
Sri.S.V.Govinda Gupta appearing in Ex.P.136 and
Ex.P.139. Even for bare eyes, it is clear that an attempt of
imitation of signature of Sri.S.V.Govinda Gupta is made in
Ex.P.62. All these circumstances create a serious doubt
about the genuineness of Ex.P.62.
38 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
50. Ex.P.136 shows that original Sale Deed of that
document was written on Rs.5.00 Stamp Paper bearing
No.9997 sold to Munivenkatappa with an endorsement as
'ªÀÄĤªÉAPÀl¥Àà£ÀªÀjUÉ' by Stamp Vendor-Muniyappa of
Bengaluru City. Though Ex.P.62 appears to have been
written on Rs.5.00 Stamp Paper, it does not bear number
as '9997', name of Munivenkatappa and signature that of
Muniyappa-Stamp Vendor. Though there is said to be a
signature of Stamp Vendor and the name of Purchaser of
Stamp Paper, they do not show that Stamp Paper was
purchased in the name of Munivenkatappa and that Stamp
Vendor was Muniyappa. Though there is a seal in that
document showing that it was sold at Bengaluru City, the
said Stamp Paper has a round Seal of Malur Taluk
Treasury, which indicates that it was issued from Malur
Taluk Treasury. All the seals put in Ex.P.62 are appear to
be so fresh, though Stamp Paper appears to be of 50 years
old. All these circumstances also create a serious doubt
about the genuineness of Ex.P.62.
51. As per Ex.P.136, Archaka Thimmaiah is the scribe
of the original Sale Deed and he has signed on the original
document also. But, signature of said Archaka Thimmaiah
is not available in any portion of Ex.P.62. In Ex.P.62, there
are thumb impressions said to be of Krishnappa and Patel
Munivenkatappa. But, there is no reference in Ex.P.136
about those thumb impressions. By the side of those
thumb impressions, there are signatures said to be those
of Krishnappa and Patel Munivenkatappa in Ex.P.62. But,
39 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
in Ex.P.136, there is reference about signature of Patel
Munivenkatappa, which is identified by Sri.Varadaraja
Swamy Archaka Thimmaiah. But, such identification is not
available in Ex.P.62. In Ex.P.136, there is no reference
about signature of Krishnappa as it is in Ex.P.62. As per
Ex.P.136, in the original Sale Deed, there is insertion of a
word '¥ÀÇgÀé' after the words '£ÁUÀgÀ¨Á«UÀÉ ºÉÆÃUÀĪÀ zÁj F
ªÀÄzsÉå EgÀĪÀ RgÁ§Ä zÉÃT®Ä' and before the words '¥À²ÑªÀÄ 86
UÀd' relating to the description of 2nd item of the property
sold under that document. But, no such insertion is found
in Ex.P.62. All these circumstances also clearly show that
Ex.P.62 is not a genuine document.
52. As per Ex.P.137, Patel Munivenkatappa
purchased all those 6 items from Narayanappa on
10.11.1943. As Krishnappa son of Narappa purchased
those properties from Patel Munivenkatappa, he should
have possessed the original Sale Deed dated 10.11.1943.
As the Accused-8 is claiming that he is Krishnappa son of
Narappa, he should have possessed the said Sale Deed.
But, he did not produce that Sale Deed before the Bank. It
is not his contention that he has that original Sale Deed
with him. This circumstance also strongly goes against the
Accused-8.
53. As per Ex.P.139, said Krishnappa son of Narappa
sold all those 6 items purchased by him under Ex.P.136 to
Smt.Nanjamma and her adopted son-Krishnappa on
40 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
15.06.1953. As per Ex.P.138, said Nanjamma and her
adopted son-Krishnappa have sold all those 6 items to
Smt.Munilakshmamma on 03.05.1956. P.W.24-Sri.P.Kumar,
who is the son of said Munilakshmamma, has also deposed
about purchase of properties by his mother under
Ex.P.138. As such, all those 6 items purchased under
Ex.P.62 or Ex.P.136 by Krishnappa son of Narappa were
not with him subsequent to 15.06.1953. As he sold those
properties on 15.06.1953 itself and as the said properties
went to Smt.Munilakshmamma as per Ex.P.138
subsequently, question of possessing original Sale Deed
relating to Ex.P.62 or Ex.P.136 by the Accused-8 or
Krishnappa son of Narappa does not arise. This
circumstance also strongly goes against the genuineness of
Ex.P.62.
54. Ex.P.67 is the Encumbrance Certificate for the
period from 01.04.1949 to 30.09.1966 relating to vacant
site bearing Khatha No.75 of Attiguppe village, measuring
115 feet x 113 feet said to have been issued by the Sub-
Registrar of Bengaluru North Taluk, Bengaluru, on
17.06.1999. The Accused-8 has produced this document
to the Bank as Encumbrance Certificate relating to the
property purchased under Ex.P.62, which was offered as
security to the Bank. P.W.13 has deposed that Ex.P.67
does not relate to Ex.P.62 and that the property shown in
Ex.P.62 and that of the properties shown in Ex.P.67 are
not one and the same. He has identified Ex.P.140 as the
Encumbrance Certificate issued to the Complainant by the
41 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Sub-Registrar, Peenya, Bengaluru Taluk, for the period
from 01.04.1943 to 30.09.1966. This document contains
all the encumbrances in detail relating to Ex.P.136 to
Ex.P.139, which cannot be found in Ex.P.67. P.W.34 was
also working as Sub-Registrar of Bengaluru North Taluk
from 1996 to 1999. He has deposed that Ex.P.67 was
issued by the Sub-Registrar, Bengaluru North Taluk. He
has also deposed that though transaction dated
09.12.1950 is referred to in Ex.P.67, subsequent
alienations as per Ex.P.138 and Ex.P.139 are not reflected
in that document. In Ex.P.67, an entry is made relating to
sale of "vacant site measuring 20 x 70 yards and other
properties" on 09.12.1950 from Patel Munivenkatappa to
Krishnappa. Though there is reference in Ex.P.62 and
Ex.P.136 at Item No.4 about sale of wet land measuring
20 yards, there are no recitals in those documents about
sale of vacant site measuring 20 yards x 70 yards or 115
feet x 113 feet much less vacant site bearing Khatha
No.75 as shown in Ex.P.67. There is nothing to show as to
when actually and under what authority, Khatha No.75 was
given to the property purchased under Ex.P.62 or
Ex.P.136. All these circumstances show that Ex.P.67 is not
a genuine document.
55. Ex.P.68 is said to be the Encumbrance Certificate
for a period from 01.10.1966 to 21.06.1999 relating to
Khaneshumari No.75 of Attiguppe Village measuring 115
feet x 113 feet. Ex.P.69 is said to be the Encumbrance
Certificate for a period from 01.06.1999 to 11.07.2004 in
42 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
respect of the same property. But, boundaries of the
property shown in these 2 documents differ from each
other. There is no reference in Ex.P.62 or Ex.P.136 about
the said property described in Ex.P.68 and Ex.P.69. The
evidence of P.W.13 also shows that Ex.P.67 to Ex.P.69 do
not relate to Ex.P.62. All these circumstances create a
serious doubt about genuineness of Ex.P.67, Ex.P.68 and
Ex.P.69.
56. Ex.P.63 is said to be a Receipt dated 02.06.1994
issued in respect of the property bearing No.75 measuring
115 x 113 feet of Attiguppe Village in the name of
Krishnappa from BBMP Office, Binnypet Range. Ex.P.64 is
said to be a Tax Receipt dated 10.12.2003 relating to
property bearing No.75, 3rd Main Road, Chandra Layout, by
the BBMP Binnypet Range. Ex.P.65 is said to be the
Extract of Houses and Sites Revenue Document Register
relating to property bearing Khatha No.75, measuring 115
feet x 113 feet in the name of Krishnappa son of
Narayanappa issued by BBMP, Binnypet Range. So also,
Ex.P.68 is said to be a Certificate issued by BBMP,
Binnypet Range to the effect that said No.75 stands in the
name of Krishnappa.
57. P.W.14 was working as Assistant Revenue Officer
of Binnypet Range from May 2006 to September 2008. As
per her evidence, Ex.P.63 to Ex.P.66 were not issued from
her Office. In this regard, to a Letter issued by the CBI
Officers, P.W.14 has given Reply as per Ex.P.141 and
43 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Ex.P.142. Contents of Ex.P.141 and Ex.P.142 fortify the
evidence of P.W.14. P.W.15 is the Assistant Revenue
Officer working in the BBMP Office at Chandra Layout. It is
his evidence that property bearing No.75, 3rd Main Road,
Chandra Layout is not registered in his Office and that
Ex.P.64 to Ex.P.66 were not issued from his Office. This
witness has also sent his Reply to the CBI Officers as per
Ex.P.143 and Ex.P.144. Contents of these documents
fortify the evidence of P.W.15. P.W.17 was working as
Assistant Revenue Officer in Binnypet Range of BBMP
Office from 2000 to 2002. As per the evidence of this
witness also, Ex.P.63 to Ex.P.66 were not issued from his
Office. Thus, the evidence of P.W.14, P.W.15 and P.W.17
corroborate the evidence of P.W.13, which fortifies the
contention of the Complainant that Ex.P.62 to Ex.P.69 are
not genuine documents.
58. P.W.20 is working as Assistant Engineer in BBMP
relating to Chandra Layout area. As per his evidence, he
accompanied the CBI Officers along with Valuer, who had
valued the property bearing No.75, which was mortgaged
by the Accused-8 in favour of the Bank. It is his evidence
that the said property bearing Khatha No.75 is situated in
site No.100 and 101 as per BDA approved Layout Plan and
that the said property falls in Sy.No.348 of Kempapura
Agrahara Village, which was acquired by BDA, on
10.05.1978 for the purpose of forming Chandra Layout and
that BDA is the owner of that property. He has identified
Ex.P.166 as the Endorsement given by the Land
44 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Acquisition Officer, Ex.P.167 as the EO Note prepared by
him and Ex.P.168 as the Gazette Notification in respect of
the said property. Contents of all these documents fortify
the evidence of P.W.20. P.W.21 was working as Deputy
Secretary of BDA in the year 2008. His evidence fully
corroborates the evidence of P.W.20, which supports the
evidence of P.W.13, P.W.14, P.W.15 and P.W.17 and
strengthens the contention of the Complainant that
Ex.P.62 to Ex.P.69 are not genuine documents. P.W.13,
P.W.14, P.W.15, P.W.17, P.W.20 and P.W.21 have also
stood well in the test of Cross-examination and there is no
reason to disbelieve their evidence. Their evidence shows
that the Accused-8 is not the owner of the property, which
was given as security to the Bank by him.
59. Ex.P.28 is the Genealogical Tree Affidavit
executed by the Accused-8. Ex.P.29 and Ex.P.30 are the
Power of Attorneys said to have been executed by the
daughters of the Accused-8. The Accused-8 has given
Ex.P.28 to Ex.P.30 to the Bank while offering himself as
Guarantor. In Ex.P.28 to Ex.P.30, the Accused-8 has
shown his father's name as 'Narayanappa' and his address
as 'No.75, 12th Cross, Vijaya Nagara, Bengaluru'. But, he
has declared his father's name as 'Narappa' in other
documents executed by him in the Bank and he is claiming
that Ex.P.62 relates to him wherein father's name of
Krishnappa is shown as 'Narappa'.
45 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
60. P.W.18-Sri.H.Ramesh is the Postman working at
Vijaya Nagara Post Office. As per his evidence, his service
area is Vijaya Nagara 10th to 17th Main and 1st Main to 5th
Cross, Hosahalli. As per his evidence, a Postal Cover-
Ex.P.164, which was addressed to Krishnappa, No.75, 12th
Cross, Vijaya Nagara, Bengaluru-40, was entrusted to him
for service and as the said address was not available, he
made an Endorsement accordingly as per Ex.P.164(a). He
has stated that there is no 12th Cross in Vijaya Nagara.
Contents of Ex.P.164 corroborate the evidence of P.W.18.
This witness has stood well in the test of Cross-
examination. This evidence of P.W.18 shows that the
address given by the Accused-8 is false and that as such,
Ex.P.28 to Ex.P.30 are false documents.
61. P.W.5 and P.W.25 are also the Postmen working
at Chennai. As per their evidence, Ex.P.79 and Ex.P.80
are the Postal Covers addressed to Smt.Nagarathna and
the address of Smt.Nagarathna given on those Covers and
in Ex.P.29 are one and the same and Smt.Nagarathna was
not residing in the said address. P.W.36 is residing at
No.23, Madhava Nagara, 2nd Lane, R.K.Nagara, 1st Main
Road, Raja Annamalai Puram, Chennai-28. The same
address is shown in Ex.P.29 as the address of
Smt.Nagarathna. P.W.36 has deposed that Smt.Nagarathna
was not residing in the said address and that he was
residing in the said address from 2002 to 2010. Contents
of Ex.P.29, Ex.P.79 and Ex.P.80 fortify the evidence of
P.W.5, P.W.25 and P.W.36. P.W.40 has deposed that
46 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
when he sent a Postal Cover-Ex.P.192 to Smt.Uma Devi, to
the address as described in Ex.P.30, said Postal Cover
returned unserved due to 'Incomplete Address'. Contents
of Ex.P.192 corroborate the evidence of P.W.40. These
witnesses have stood well in the test of Cross-examination
and there is no reason to disbelieve their evidence. This
evidence shows that addresses of Smt.Nagarathna and
Smt.Uma Devi, who are said to be the daughters of the
Accused-8, given in Ex.P.29 and Ex.P.30 are false and as
such, it is clear that Ex.P.29 and Ex.P.30 are also false
documents.
62. From the evidence available on record, as
discussed above, it is clear that Ex.P.28 to Ex.P.30 and
Ex.P.62 to Ex.P.69 are forged documents. But, none of
the witnesses referred to above or any of the witnesses
examined on behalf of the Complainant has stated that the
Accused-1, 6 and 7 have forged those documents.
63. The Complainant has strongly relied upon the
Confession Statements of the Accused-6 and 8 recorded as
per Ex.P.247 and Ex.P.248, wherein it is stated that the
Accused-6 received Sale Deed from one Sri.Srinivasa, he
handed over that document to the Accused-1 as per the
instructions of the Accused-7, the Accused-1 obtained
Khatha Extracts, Tax Receipts and Betterment Charge
Payment Receipt and that he also took Encumbrance
Certificates from the Sub-Registrar's Office and also
secured Affidavits in the names of daughters of the
47 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Accused-8 through Courier from Chennai & Pune and that
thereafter, the Accused-6 introduced the Accused-8 to the
Accused-1 to personate as 'Krishnappa' in the Bank and
that for the said service rendered, he, the Accused-7 and 8
received money from the Accused-1. As observed above,
as the said Statements are not recorded as required under
law, they are not valid documents and no reliance could be
placed on those documents. As observed above, except
the said Confession Statements, there is no other evidence
to substantiate the contention of the Complainant that the
Accused-1, 6 and 7 forged the documents. As observed
above, in the absence of such evidence, Confession
Statements cannot be based for proving the alleged guilt
of the Accused-1, 6 and 7. Even otherwise, the said
Statements do not show that the Accused-1, 6 and 7
forged the documents much less Ex.P.28 to Ex.P.30 and
Ex.P.62 to Ex.P.69. As per the evidence of P.W.16, the
Accused-8 produced all those documents in the Bank. As
such, he is responsible for the alleged forgery. But, there
is no evidence at all to show that the Accused-1, 6 and 7
forged those documents. Inspite of the same, the Trial
Court has held that the Accused-1, 6 and 7 are guilty of
forgery. The Trial Court has not discussed as to how
actually the Accused-1, 6 and 7 committed forgery. As
such, it is clear that the finding of the Trial Court that the
Accused-1, 6 and 7 are guilty of the offence of forgery is
baseless and perverse and the Trial Court has committed a
serious error in giving such a finding. For all these
reasons, this Point is answered in the negative.
48 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
POINT-3
64. According to the Complainant, the Accused-1, 6
and 7 along with the Accused-8 used the forged
documents as genuine documents knowing to be forged
documents for the purpose of obtaining credit facility from
the Bank. The learned Public Prosecutor has contended
that as the Accused-1 availed credit facility from the Bank
with the assistance of the Accused-6 and 7 and on the
guarantee of the Accused-8, who produced Ex.P.28 to
Ex.P.30 and Ex.P.62 to Ex.P.69, it is clear that the
Accused-1, 6, 7 and 8 used forged documents as genuine
documents knowing to be forged documents. On the other
hand, the learned Advocates appearing on behalf of the
Accused-1, 6 to 8 denied the said contention of the learned
Public Prosecutor on the ground that there is no evidence
to show that the Accused-1, 6 and 7 used those
documents knowing to be forged documents.
65. P.W.16 has deposed that the Accused-8 had
come to the Bank and submitted Ex.P.28 to Ex.P.30 and
Ex.P.62 to Ex.P.69. As observed above, the evidence on
record indicates that Ex.P.28 to Ex.P.30 and Ex.P.62 to
Ex.P.69 are forged documents and that the property
covered under those documents, which was mortgaged to
the Bank by the Accused-8, does not belong to the
Accused-8. As the Accused-8 produced those forged
documents in the Bank by offering himself as Guarantor by
claiming that he was the owner of the property covered
49 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
under those documents, it has to be inferred that the
Accused-8 was knowing that those documents were forged
documents.
66. But, it is not the evidence of P.W.16 or any other
witness examined on behalf of the Complainant that the
Accused-1 was knowing that those documents produced by
the Accused-8 were forged documents or that the
Accused-1 produced those documents in the Bank as
genuine documents knowing or having reason to believe
that those documents are forged documents. P.W.8 has
stated that the Accused-1 introduced the Accused-8 to the
Chief Manager i.e., P.W.16. As observed above, P.W.16
has stated that the Accused-8 had come along with the
Accused-1 and submitted documents in the Bank. On the
basis of this evidence of P.W.8 and P.W.16, the learned
Public Prosecutor has contended that as the Accused-1
introduced the Accused-8, who has produced the forged
documents in the Bank, it is clear that the Accused-1 was
knowing that the documents produced by the Accused-8
were forged documents and that as such, it has to be held
that the Accused-1 used forged documents as genuine
documents knowing fully well that those documents were
forged documents. Though P.W.8 has stated that the
Accused-1 introduced the Accused-8 to P.W.16 and though
P.W.16 has stated that the Accused-8 had come along with
the Accused-1 and submitted documents, it is not at all
their evidence that the Accused-1 had knowledge about
those forged documents. There is no evidence to show that
50 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
the Accused-1 had an opportunity to ascertain or to know
that those documents were forged documents or to deal
with those documents or the property covered under those
documents. As the Accused-1 is no way related to the
property mortgaged by the Accused-8 and also the
documents produced by the Accused-8 and as there is no
evidence, as observed above, that the Accused-1 forged
those documents, merely because he introduced the
Accused-8 to the Bank as his Guarantor, it cannot be
inferred in the absence of any other evidence to show that
the Accused-1 was knowing that the said documents
produced by the Accused-8 were not genuine documents.
As such, it is not fit to accept the bare argument of the
learned Public Prosecutor against the Accused-1.
67. So also, the Accused-6 and 7 are no way related
to the property mortgaged by the Accused-8 and the
documents produced by the Accused-8. As observed
above, there is no evidence to show that the Accused-6
and 7 forged those documents. The Accused-6 and 7 did
not produce any of those forged documents in the Bank.
In fact, there is no evidence to show that the Accused-6
and 7 had come to the Bank or participated in any manner
in the process of sanctioning credit facility to the Accused-
1 on the guarantee of the Accused-8. There is also no
evidence to show that the Accused-6 and 7 had an
occasion to deal with those documents or the property
covered under those documents. Hence, it is not possible
to accept the bare contention of the learned Public
51 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Prosecutor that the Accused-6 and 7 were also knowing
that the documents produced by the Accused-8 were
forged and that they used those documents as genuine
documents.
68. As observed above, as the Confession
Statements of the Accused-6 and 8 are not recorded as
required under law and as except the said Confession
Statements, there is no other evidence to substantiate the
contention of the Complainant that the Accused-1, 6 and 7
had knowledge about those forged documents, Confession
Statements cannot be based for inferring the alleged guilt
of the Accused-1, 6 and 7 that knowing fully well that the
documents were forged, they used those documents as
genuine documents.
69. But, the Trial Court has not at all considered all
the above facts, circumstances and the evidence. It failed
to appreciate the evidence on record properly and on the
other hand, erroneously it has come to the conclusion that
the Accused-1, 6 and 7 also used the forged documents as
genuine documents knowing to be forged documents for
the purpose of getting credit facility to the Accused-1 from
the Bank. For all these reasons, this Point is answered in
negative.
POINT-4
70. According to the Complainant, the Accused-1, 6,
7 and 8 cheated the Bank in order to obtain credit facility
52 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
to the Accused-1 by submitting forged and fabricated
documents in the name of the Accused-8. As observed
above, it is not in dispute that the Firm of the Accused-1 to
5 had availed credit facility to the tune of Rs.30 Lakhs at
Canara Bank, Vasantha Nagara Branch, Bengaluru, in the
year 2003 on the security of the properties belonging to
the Accused-2, 4 and 5. As observed above, as the
Accused-1 to 5 approached the Bank for credit facility to
the tune of Rs.100 Lakhs, including taking over liability
with Canara Bank, the Bank directed the Accused-1 to 5 to
furnish additional security apart from the security of the
properties belonging to the Accused-2, 4 and 5, which
were mortgaged to Canara Bank. It is also not in dispute
that thereafter on the guarantee of the Accused-8 and on
the security of the property offered by the Accused-8, the
Bank sanctioned credit facility to the Accused-1 to 5 in the
name of their Firm.
71. As observed above, the evidence on record
shows that the property mortgaged by the Accused-8 to
the Bank did not belong to him at the time of mortgage
and that the documents pertaining to the said property
produced by the Accused-8 to the Bank were forged
documents. As observed above, the evidence on record
shows that the Accused-8 is responsible for that forgery.
The Bank has granted credit facility to the Accused-1 to 5
on the guarantee of the Accused-8 and on the security of
the property mortgaged by him. As such, it is clear that
the Accused-8 made the Bank to believe that he was the
53 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
owner of the property mortgaged by him and to accept
him as Guarantor to the credit facility of the Accused-1 to
5. As he was not the owner of that property and as the
documents produced by him in respect of that property
were forged and as he is responsible for that forgery, it
has to be inferred that he had dishonest and fraudulent
intention to Cheat the Bank and that thereby he induced
the Bank to grant credit facility to the Accused-1 to 5.
72. The learned Public Prosecutor has argued that as
the Accused-1 introduced the Accused-8 as Guarantor, it
has to be inferred that the Accused-1 had also dishonest
and fraudulent intention to Cheat the Bank and that
thereby he also induced the Bank to grant credit facility to
him by accepting the guarantee of the Accused-8. As
observed above, there is no evidence to show that the
Accused-1 involved in the forgery of the documents and
that he was knowing fully well that those documents were
forged documents. There is also no evidence to show that
the Accused-1 was aware that the property mortgaged by
the Accused-8 did not belong to the Accused-8 as on the
date of credit transaction. As such, merely because the
Accused-1 introduced the Accused-8 as Guarantor, it
cannot be inferred that the Accused-1 had fraudulent or
dishonest intention to Cheat the Bank and that he cheated
the Bank accordingly.
73. P.W.16 has deposed that, before recommending
for sanction of credit facility to the Firm of the Accused-1
54 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
to 5, he approached Canara Bank and got confirmed about
satisfactory dealings of the said Firm with that Bank. This
evidence shows that the Accused-1 has not done any
fraudulent or dishonest act in his dealings with Canara
Bank. P.W.4 has stated that 3 properties, which were
given as security by the Accused-1 to 5 in respect of credit
transaction with Canara Bank as well as the Bank, are
genuine properties. He has also stated in his Cross-
examination that at the time of sanctioning the loan, there
was no doubt from any angle. When P.W.16 was
questioned that there was no intention on the part of the
Accused-1 to 5 to Cheat the Bank and that is why, they
offered residential house property as Collateral Security,
P.W.16 did not deny the said contention. On the other
hand, he has stated that the Accused-1 to 5 have given
Guarantor Krishnappa, who has offered property as
additional Collateral Security. All these circumstances
fortify the contention of the Accused-1 that he had no
intention to Cheat the Bank, when he approached the Bank
for credit facility.
74. It is not in dispute that the Accused-1 to 5
obtained the said credit facility from the Bank for running
Wholesale Liquor Business. It is also not in dispute that at
that time, they had license from the Government to run
that business. According to the Accused-1, from
30.06.2005, the Government stopped renewal of the
Wholesale Liquor License and as such, they could not run
the Liquor Business and hence, they could not repay the
55 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
dues of the Bank in time. P.W.2, P.W.4 and P.W.16 did
not deny the said contention of the Accused-1. According
to the Accused-1, he and the Accused-2 to 5 have repaid
the dues to the Bank subsequently and if at all, they had
an intention of cheating the Bank, they would not have
repaid the dues to the Bank. P.W.16 has admitted in his
Cross-examination that as on the date of his evidence, the
Accused-1 to 5 have repaid the entire amount borrowed by
them. This answer fortifies the contention of the Accused-
1.
75. None of the witnesses examined on behalf of the
Complainant has stated about dishonest or fraudulent
intention or acts of the Accused-1 to cheat the Bank. As
observed above, there is no evidence to show the role of
the Accused-1 in forging the documents in the name of the
Accused-8 and production of those documents in the Bank.
As observed above, there is no evidence placed to infer
that the Accused-1 had knowledge about those forged
documents. As observed above, dealings of the Accused-1
to 5 with Canara Bank were fair, the Accused-1 to 5 have
furnished their properties as security and there is no flaw
in respect of those properties and though they did not
repay the dues of the Bank in time, they have
subsequently cleared the dues of the Bank. As observed
above, there is explanation of the Accused-1 that because
of stopping of renewal of Liquor License by the
Government, his Firm could not run the business for which
his Firm had obtained credit facility from the Bank and the
56 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
said explanation of the Accused-1 is not denied by the
Complainant. There is no reason to reject the said
explanation offered by the Accused-1. On considering all
these facts, circumstances and in the absence of any
evidence on behalf of the Complainant, it is not possible to
accept the bare argument of the learned Public Prosecutor
that the Accused-1 has cheated the Bank.
76. There is no evidence to show that the Accused-6
and 7 have done any act of cheating the Bank relating to
credit facility granted by the Bank to the Accused-1 to 5.
The Accused-6 and 7 have not executed any documents
and even they have not gone to the Bank in connection
with the said credit facility granted by the Bank to the
Accused-1 to 5. As observed above, there is nothing to
show that the Accused-6 and 7 are responsible for forging
the documents in the name of the Accused-8 and using all
those documents as genuine documents. The Accused-6
and 7 even did not introduce the Accused-1 or 8 to the
Bank. As such, there is no evidence to show the role of
the Accused-6 and 7 to make the Bank to grant credit
facility to the Accused-1 to 5 on the guarantee of the
Accused-8. Hence, the Accused-6 and 7 cannot be held as
guilty of cheating the Bank.
77. Without considering all the above facts and
circumstances and also the evidence available on record,
the Trial Court has erroneously held that the Accused-1, 6
and 7 are guilty of cheating even in the absence of any
57 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
acceptable evidence in this regard. The said finding of the
Trial Court is arbitrary and perverse. For all these reasons,
this Point is answered in the negative.
POINT-5
78. According to the Complainant, the Accused-1, 6
and 7 entered into an agreement with the Accused-8 to
Cheat the Bank by way of committing forgery, using forged
documents as genuine documents and also to cheat by
personation and thereby the Accused-1, 6 and 7 have
committed Criminal Conspiracy. The learned Public
Prosecutor has relied upon the evidence of P.W.16, P.W.40
and P.W.41 and also Ex.P.45, Ex.P.194, Ex.P.228,
Ex.P.229, Ex.P.239, Ex.P.240, Ex.P.247 and Ex.P.248, to
substantiate her arguments. On the other hand, the
learned counsels for the Accused-1, 6 and 7 have
contended that there is no such evidence much less the
evidence of P.W.16, P.W.40 and P.W.41 to substantiate
the claim of the Complainant.
79. As observed above, the evidence on record does
not show that the Accused-8 has cheated by personation
as alleged by the Complainant. As observed above, though
the evidence on record indicates that the Accused-8 is
responsible for forgery, using of forged documents in the
Bank as genuine documents and cheating the Bank, there
is no evidence to connect the Accused-1, 6 and 7 to the
said acts of the Accused-8.
58 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
80. The learned Public Prosecutor has strongly relied
upon Ex.P.247 and Ex.P.248-Confession Statements of the
Accused-6 and 8 respectively and contended that the
Accused-6 and 8 have confessed that the Accused-7 is a
common friend of the Accused-1 and 6, the Accused-6
gave Ex.P.62 to the Accused-1, the Accused-6 introduced
the Accused-8 to the Accused-1 and 7 for the purpose of
personating as 'Krishnappa' and that all these Accused
entered into an agreement to Cheat the Bank by way of
forgery, using of forged documents as genuine documents
and cheating by personation and that in pursuance of the
said agreement, they have done all those acts. But, as
observed above, Ex.P.247 and Ex.P.248 are not reliable
and in the absence of supporting evidence, the said
Confession Statements are not fit to be used against the
Accused-1, 6, 7 and 8. As observed above, there is no
supporting evidence in respect of the said allegations made
in the Confession Statements. As such, Ex.P.247 and
Ex.P.248 are of no assistance to the learned Public
Prosecutor to substantiate her arguments.
81. It is the argument of the learned Public
Prosecutor that as the Accused-6 received Rs.1.5 Lakhs
from the Accused-1 and that as the Accused-7 received
Rs.5 Lakhs from the Accused-1 through Cheques and that
as the Accused-6 to 8 divided those Cheque amounts in
between them, it has to be inferred that there was
Conspiracy between the Accused-1, 6 to 8 to commit the
offences against the Bank. Though the learned Public
59 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Prosecutor has strongly relied upon the evidence of P.W.16
in this regard, P.W.16 has not stated that the Accused-6 to
8 received money from the Accused-1 through Cheques as
contended by the learned Public Prosecutor.
82. According to the Complainant, Ex.P.194 is the
Cheque for Rs.1,50,000/- issued by the Accused-1 in
favour of the Accused-6. None of the witnesses examined
by the Complainant, including P.W.16 and P.W.40, has
stated that the Accused-6 encashed the said Cheque and
that the Accused-6 to 8 got divided that Cheque amount
among themselves. The learned Public Prosecutor has
relied upon the evidence of P.W.41, who is a Handwriting
Expert, and Specimen Signatures of the Accused-6 said to
have been taken as per Ex.P.228, Ex.P.239 and Ex.P.240.
Q.4 is the mark given by P.W.41 to the alleged signature
of the Accused-6 in Ex.P.194. P.W.41 examined Q.4 with
reference to Ex.P.228, Ex.P.239 and Ex.P.240 and gave his
Report as per Ex.P.243. But, it is not his evidence before
the Court and Opinion in Ex.P.243 that authors of Q.4 and
Ex.P.228, P.239 and Ex.P.240 are one and the same
person. In fact, he did not express any Opinion about Q.4.
As such, the evidence of P.W.41 is also of no assistance to
the learned Public Prosecutor to substantiate her
arguments.
83. Ex.P.45 is said to be the Cheque for Rs.5 Lakhs
issued by the Accused-1 in favour of the Accused-7. In
Ex.P.45, bearer's name is shown as 'Naveen'. The
60 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Accused-7 is not 'Naveen', but, he is 'Naveen Hegde'.
P.W.16 has stated in his Examination-in-chief that Ex.P.45
is a Cheque issued by Krishna Enterprises. But, he has not
stated that the Accused-7 received that Cheque from the
Accused-1 and that he encashed that Cheque amount and
that the Accused-6 to 8 got divided that Cheque amount
among themselves. On the other hand, in Pages-15 and
16 of his Cross-examination, he has stated that Ex.P.45
does not show any indication of being honoured or being
cleared by the Bank. He has also stated that if a bearer
Cheque of Rs.5 Lakhs is given, normally the Bank takes ID
proof of the person in whose name the Cheque is drawn.
He has also stated that he did not clear Ex.P.45 and that
the Bank has collected the Identity documents of the
person, who was the bearer of Ex.P.45. The Bank should
have produced the said identity documents or the IO
should have collected and produced those identity
documents to show that the Accused-7 or any one among
the Accused-6 to 8 encashed the said Cheque amount.
But, it is not done so. There is no explanation from the
Complainant in this regard. As the said identity documents
are very material to substantiate the contention of the
Complainant, in the absence of such material documentary
evidence, an adverse inference has to be drawn against
the Complainant. As such and as P.W.16 has not stated
that the Accused-7 or the Accused-6 and 8 encashed the
Cheque-Ex.P.45, the evidence of P.W.16 is of no
assistance to the Complainant to substantiate the
arguments of the learned Public Prosecutor.
61 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
84. P.W.40 has stated that he obtained Specimen
Signatures of the Accused-7 as per Ex.P.229. Ex.P.229
indicates that the said document was prepared in the
presence of Sri.A.J.Ashok Kumar of Syndicate Bank. But,
said Sri.Ashok Kumar has not come forward to support the
version of P.W.40. In the absence of such supporting
evidence, it is difficult to rely upon the evidence of P.W.40
that Ex.P.229 consists of the Specimen Signatures of the
Accused-7.
85. P.W.41 has stated in his evidence as well as in
Ex.P.243 that Handwriting evidence points to the writer of
Specimen Signatures marked as S.6 to S.10 i.e., Ex.P.229
being the person responsible for writing the questioned
signature-Q.2 in Ex.P.45. Though P.W.41 has stated in his
evidence that he compared and examined the Questioned
Document with Specimen Document, in his evidence, he
has not stated as to which are the points of similarities
between the signature of the Accused-7 and Q.2. In
Ex.P.243 at Page-3 though P.W.41 has listed 6 similarities
between Q.2 and S.6 to S.10, he has not explained as to
how and in what manner, there are similarities in between
the Questioned Signature and Specimen Signature. As
such, the Opinion of P.W.41 in Ex.P.243 is incomplete and
vague.
86. In his Cross-examination, P.W.41 has stated
that he has magnified the writings of Specimen Signatures
and Disputed Signatures during comparison. He has also
62 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
admitted that compared signatures, writings and the
document will be stored in a negative film. But, P.W.41
has not produced the said magnified writings and stored
material before the Court for appreciating his Opinion. In
the absence of such material, it is not possible to the Court
to appreciate the evidence and Opinion given by P.W.41.
87. As observed above, in the absence of supporting
evidence, it is not fit to accept the evidence of P.W.40 that
Ex.P.229 contains the Specimen Signatures of the
Accused-7. As observed above, the Opinion of P.W.41 is
incomplete and vague, and P.W.41 did not produce the
magnified signatures and other materials used for the
purpose of comparison so as to enable the Court to
appreciate his Opinion by comparison. As such, it is not
safe to rely upon the evidence of P.W.41. Furthermore,
Expert evidence is not decisive and it can be used only as
corroborative evidence to the other evidence available on
record. In the case on hand, there is no other evidence to
show that the Accused-7 has encashed Ex.P.45 by
presenting it to the Bank. In the absence of such evidence,
the evidence of P.W.41 and his Opinion is of no assistance
to the Complainant to substantiate his contention.
88. Thus, it is clear that, there is no evidence to show
that the Accused-6 to 8 received money from the Accused-
1 as contended by the Complainant. Even for a moment, if
it is believed that the Accused-6 and 7 received the
Cheques from the Accused-1, as the Accused-6 is doing
63 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
Financial Business and as the Accused-7 is doing Liquor
Business, they might have received said Cheques from the
Accused-1 relating to their business with the Accused-1.
There is nothing on behalf of the Complainant to show that
the Accused-6 and 7 received the said Cheques from the
Accused-1 as a reward to commit the offences alleged by
the Complainant. All these circumstances negative the
contention of the Complainant.
89. From the above discussion, it is clear that there
is no evidence to connect the Accused-1, 6 and 7 to the
acts of the Accused-8 and that the Accused-1, 6 and 7
helped or assisted the Accused-8 to forge the documents,
use the forged documents in the Bank and to Cheat the
Bank. The evidence on record does not show agreement
in between the Accused-1, 6 to 8 in any manner to commit
the said acts. For all these reasons, it is not possible to
accept the bare contention of the Complainant that there
was Criminal Conspiracy between the Accused-1, 6 to 8 for
the purpose of cheating by way of forgery and using forged
documents in the Bank. The Trial Court has ignored all
these aspects, failed to appreciate the evidence on record
properly and erroneously accepted the contention of the
Complainant straight away though there is no acceptable
evidence to substantiate the same. Hence, this Point is
answered in the negative.
64 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
POINT-6
90. As observed above, the Complainant has failed
to place acceptable evidence to show that the Accused-1, 6
and 7 entered into Criminal Conspiracy, the Accused-1, 6
and 7 forged the documents and used those documents as
genuine documents and that they cheated the Bank as
charged against them. As such, they cannot be held guilty
for the offences punishable under Sections 120-B, 467,
468, 471 and 420 of the IPC. As observed above, the Trial
Court has committed error in appreciating the evidence
properly, failed to give benefit of doubts to the Accused-1,
6 and 7 and erroneously accepted the contention of the
Complainant though there is no evidence, which has
resulted in conviction of the Accused-1, 6 and 7. Hence,
conviction of the Accused-1, 6 and 7 made by the Trial
Court is unsustainable and consequently, sentencing of the
Accused-1, 6 and 7 for those offences is also
unsustainable. For all these reasons, this Point is answered
in the affirmative.
POINT-7
91. In view of the negative findings on Points-1 to 5
and affirmative finding on Point-6, the Appeals of the
Accused-1, 6 and 7 are fit to be allowed and consequently,
Judgment of conviction and sentence passed by the Trial
Court is liable to be set aside. In the result, the following
Order is passed:
65 [Common Judgment in Criminal Appeal
Nos.74/2013, 76/2013 & 84/2013]
ORDER
1. The Appeal of the Accused-1 in Criminal Appeal No.76/2013, the Appeal of the Accused-6 in Criminal Appeal No.84/2013 and the Appeal of the Accused-7 in Criminal Appeal No.74/2013 are allowed.
2. Judgment of conviction and sentence passed by the Trial Court against the Accused-1, 6 and 7 in C.C.No.19957/2008 for the offences punishable under Sections 120-B, 467, 468, 471 and 420 of the IPC is set aside, the Accused-1, 6 and 7 are acquitted from the Charges of those offences and they are set at liberty.
3. Appeal of the Accused-8 in Criminal Appeal No.84/2013 stands abated already.
4. Send the records to the Trial Court along with copy of this Judgment.
5. Keep the original of this Judgment in Criminal Appeal No.76/2013 and Copies of this Judgment in Criminal Appeal Nos.74/2013 and 84/2013.
(Dictated to Judgment Writer, transcribed by her, revised, corrected and then pronounced by me in the Open Court on this the 30th day of April 2016.) (ASWATHA NARAYANA) XLVII Additional City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru.
66 [Common Judgment in Criminal Appeal Nos.74/2013, 76/2013 & 84/2013]