Madras High Court
R.Ramesh vs / on 3 August, 2018
Author: G.Jayachandran
Bench: G.Jayachandran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON :06.07.2018 PRONOUNCED ON :03.08.2018 CORAM THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Criminal Appeal Nos.85,112, 151 of 2010 R.Ramesh .. Appellant/Accused -3 in Crl.A.No.85 of 2010 S.T.Sangathurajan .. Appellant/1st accused in Crl.A.No.112 of 2010 Jageer Hussain .. Appellant/Accused No.2 in Crl.A.No.151 of 2010 /versus/ The Inspector of Police, SPE/CBI/ACB/Chennai, R.C.No.28(A)/99 .. Respondent/complainant in all the cases Prayer in Crl.A.No.85 of 2010: Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code praying to set aside the judgment passed against the appellant on 29.01.2010 in C.C.No.24 of 2001 on the file of the Additional Special Judge for CBI Cases/IX Additional City Civil Court, Chennai and acquit the appellant from all the charges. Prayer in Crl.A.No.112 of 2010: Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code praying to set aside the judgment of conviction in C.C.No.24 of 2001, dated 29.01.2010 on the file of the learned IX Additional Special Judge for CBI Cases, Chennai and acquit the accused(A1). Prayer in Crl.A.No.151 of 2010: Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code praying to set aside the conviction and sentence imposed by the Special Court for CBI Cases, IX Additional City Civil Court at Chennai in C.C.NO.24 of 2001 in R.C.No.28(A) of 1999, dated 29.01.2010. For Appellants :Mr.N.R.Elango, Senior Counsel for Mr.Aruna Elango (Crl.A.No.85/2010) :Mr.N.Baaskaran(Crl.A.No.112/2010) :Mr.S.Xavier Felix(Crl.A.No.151/2010) For Respondent :Mr.K.Srinivasan, Spl.PP(CBI) in all appeals ---------- COMMON JUDGMENT
The above three criminal appeals are filed by the accused A1 to A3, who were found guilty of offence under Sections 120(B) r/w 420, 419, 468, 468 r/w 471, 467, 467 r/w 471, 201 of Indian Penal Code and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. As for A1(S.T.Sangathurajan), the substantive offence under Section 201 of the Indian Penal Code and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and as for A2(Jageer Hussain), the substantive offence under Sections 468 (3 counts), 468 r/w 471 (3 counts); 420 (3 counts), 419 (4 counts), 467(9 counts), 467 r/w 471 (9 counts); and as for A3(Ramesh), the substantive offence under Sections 468 r/w 471(3 counts), 420 (3 counts), 419(4 counts), 467(6 counts), 467 r/w 471 ( 6 counts). The maximum period of imprisonment for all these three accused imposed was one year and totally the fine amount imposed on A1 is Rs.8,000/=; A2(Jageer Hussain) is Rs.32,000/- and A3(Ramesh) is Rs.26,000/-. One of the accused (A4) was found not guilty and acquitted from all the charges.
2. The brief facts of the prosecution case as found in the final report is that A1(S.T.Sangathurajan) while working as Upper Division Clerk (in short UDC) in the office of Employees Provident Fund, Royapettah and Tambaram, entered into the criminal conspiracy with A2 (Jageer Hussain), A3 (R.Ramesh) and A4 (Abubacker), during the period from 1994 to 1998 to cheat the Employees of Provident Fund Department. Pursuant to the said conspiracy, four Provident Fund Application forms were prepared by A2(Jageer Hussain) in the names of N.Neelakandan for Rs.50,000/-; C.Kothandam for Rs.50,000/-; P.Muthukrishnan for Rs.50,000/- and V.Ramesh for Rs.1,24,000/-. The loan sanctioned based on the fraudulent application forms prepared by A2 (Jageer Hussain) was encashed through Saving Bank Accounts opened at Anna Road, Head Post Office, T.Nagar Head Post Office and REPCO Bank, Pallavaram by A2 impersonating as N.Neelakandan, C.Kothandam, P.Muthukrishnan and V.Ramesh. The amounts so deposited were withdrawn on various dates from these accounts.
3. A3(V.Ramesh) had forged the application forms in the name of P.Sekar for Rs.25,000/-; U.Jayaraman for Rs.17,500/-; P.Ramachandran for Rs.4,500/- and R.Venkataramani for Rs.50,000/- by forging the signatures of the above said persons and to encash the loan amount, Saving Bank Accounts at Anna Road Head Post Office, T.N.Nagar Head Post and TNSC Bank, Royapuram were opened by A3 impersonating as P.Sekar, R.Venkataramani, U.Jayaraman and P.Ramachandran. Later, the amounts were withdrawn by A3 (R.Ramesh) through cheques and withdrawal slips and also transferring to the other accounts.
4. One of the fictitious saving bank account opened in the name of P.Sekar at Anna Road Head Post Office, Chennai was introduced by A4 (Abubacker) impersonating himself as Sankararaman. The account at REPCO Bank, Pallavaram in the name of V.Ramesh was opened by impersonation of Jageer Hussain (A2) and the said account was introduced by A1 (S.T.Sangathurajan), knowing fully well that A2 (Jageer Hussain) is not V.Ramesh.
5. A1(S.T.Sangathurajan) as UDC in Employees Provident Fund Office by abusing and misusing his official position by corrupt means knowing fully well that the above advance applications of Provident Fund Account prepared by A2 and A3 were not genuine, but forged and floated by A2 and A3, without scrutinizing the relevant documents, had processed the same and got the sanction of Assistant Accounts Officer through the Section Supervisor. To conceal the fraudulent act, A1 (S.T.Sangathurajan) intentionally and deliberately omitted to hand over the worksheets and other documents connected to the fraudulent loan applications. The total loss resulted due to the above said criminal act was determined as Rs.3,71,300/-.
6. The trial Court had totally framed 16 charges. To prove the case, the prosecution has examine 49 witnesses. 127 documents were marked on the prosecution side. On the side of the defence, one document was marked. The trial Court, after appreciating the evidence, has found A1 to A3 guilty and imposed sentence as mentioned above and acquitted A4 as guilt not proved. The convicted accused A1 to A3 have preferred the appeals independently. In Crl.A.No.112 of 2010, the appellant is S.T.Sangathurajan(A1); In Crl.A.No.151 of 2010 the appellant is Jageer Hussain(A2); and In Crl.A.No.85 of 2010 the appellant is R.Ramesh(A3).
7. Crl.A.No.112 of 2010:-
The sanction to prosecute A1 is accorded by PW-1(A.S.Rajagopal) without application of mind and without proper scrutiny of the documents. Though the applications were available and produced before the trial Court by the prosecution and marked as Exs.P8 to P12, P23, P26 and P29, PW-1(A.S.Rajagopal) has deposed that the loan application forms were destroyed by A1. This clearly proves that the sanctioning officer has not gone through the records. The specimen signatures of the accused persons were not obtained with the permission of the Magistrate. The persons, who witnessed the drawing of specimen signatures of the accused persons were not examined. The opinion of the handwriting expert Y.Suraya Prasad (PW-45) is not based on any scientific method contemplated under law and hence, his opinion is unreliable. The procedure for sanctioning the loan application involves several stages. The application for loan has to be submitted at the Reception Section, which would be forwarded to EDP Centre. After taking copies, the original document would be sent back to the Reception Section. Retaining the original document the application will be sent to the Account Section. The Section Supervisor of the Account Section will make necessary entries in the register for receipt and disposal of the claim. Then, he will distribute the same to the Dealing Assistant. The appellant, who was the Dealing Assistant at the given point of time, received the documents from the Section Supervisor. After signing the register for disposal and made necessary entries in the work diary, he sent back the application to the Section Supervisor, if the application is defective. Or else, it will be sent for settlement to the Section Supervisor. The Assistant Accounts Officer has to initial the work sheet, ledger of the application and sanction the loan.
8. The learned trial Judge has failed to consider that the cheque has to be issued by the Assistant Commissioner Cash, after due verification. A1 who is a Processing Clerk cannot be held responsible for issuance of cheque without due verification. The registers maintained for sanctioning the loan and issuance of cheques were not produced by the Investigating Officer. The every loan application or cheque is verified by at least seven officers at various levels. A4 being the Lower Division Clerk had no role for sanctioning the loan. Though there is prohibition for Assistant Accounts Officer to sanction loan applications which are more than Rs.20,000/-, the loans sanctioned in this case are for more than Rs.20,000/- but issued by Assistant Accounts Officer. Nobody from the Cash Section or Despatch Section were examined by the Prosecution. Nobody from the Postal Department or from the Bank had deposed that they have received the cheques from EPF office and the same were sent for collection.
9. Crl.A.No.151 of 2010:
A2 (Jageer Hussain) would contend that the trial Court has failed to consider the evidence before it properly. It erroneously relied upon the evidence of handwriting expert, which is a very weak piece of evidence. Without independent corroboration to the expert opinion, the trial Court had held this accused guilty, solely based on the handwriting expert opinion. The sanction to prosecute has been accorded by PW-1 mechanically without application of mind. There is no evidence to prove the offence punishable under Section 120B IPC. While so, the trial Court has failed to appreciate the facts and law properly. The defence evidence has been neglected.
10. Crl.A.No.85 of 2010:
A3 (Ramesh) in his grounds of appeal would submit that the lower Court has failed to reject the evidence of PW-1 to PW-4 on the ground of inconsistency and incredibility. The evidence of PW-30 (K.Ealavarasan) that A2 and A3 were friends of A1 and they used to visit the office of A1, is not convincing or cogent but suspicious and unbelievable. The evidence of PW-36 that in the year 1994, he introduced a person by name Ramachandran for opening the account in TNSC Bank, Royapuram Branch is unbelievable, since he admits that Ramesh (A3) whom he introduced as Ramachandran was not a person known to him and he did not notice any physical feature or identification character of that person. It was only on showing the photograph of A3 this witness has identified A3 as the person whom he has introduced to the bank as Ramachandran. Without conducting identification parade, this witness PW-36 has identified the accused as A3 in the Court for the first time. The handwriting expert evidence is not a reliable piece of evidence and conviction cannot be based on the opinion of the handwriting expert. Without adopting the scientific method when comparing the admitted signatures with that of the disputed signature, the opinion of the handwriting expert is highly unreliable. The manner in which the specimen signatures alleged to have been obtained by the investigation officer is also not in consonance with Section 5 of Identification of Prisoners Act and therefore, the evidence of handwriting expert has to be rejected in toto. The uncorroborated testimony of the handwriting expert deserves rejection in toto and in lumini. The lower Court without considering the probative value of the report had solely relied upon it to convict this appellant.
11. Per contra, the learned Special Public Prosecutor representing CBI would submit that the specific charge against these appellants is that, they conspired together to create fabricated loan sanction orders in the name of fictitious persons and encashed the same by opening Saving Bank Accounts. In order to prove the case, the prosecution has examined 49 witnesses and marked 127 exhibits. The accused persons were known to each other. Through the evidence of PW-30 Assistant in EPF Office, the prosecution has proved that A1 being UDC at Royapuram EPF Office Group-21 was transferred to Group-52 Tambaram subsequently. The accused A2 (Jageer Hussain) and A3 (Ramesh) used to visit A1's office. They were introduced to him by A1.
12. From the evidence of PW-2(N.D.Jagadeesan), we could find that the loan applications marked as Exs.P8 to P12 were received by the Provident Fund Office at Tambaram and the same has been processed by A1 Dealing Clerk. The handwritings and initial of A1 in Exs.P8 t0 P12 have been identified by PW-2. The loan applications in the names of Eight employees of Rane Engine Valve, Supra Marketing Associates and Dura Metallic Sunmar Limited were fabricated. Out of 8 employees, five were examined as PW7, PW-8, PW-38, PW-41 and PW-44, who all in unison had stated that they had never submitted any loan application. Nomination and declaration Forms (Exs.P3 to P7) in the name of N.Neelakandan, C.Kothandam, P.Muthukrishnan, R.Venkataramani and U.Jayaraman were routed through their offices. In the advanced applications alleged to have been submitted by N.Neelakandan, C.Kothandam, P.Muthukrishnan, R.Venkataramani and U.Jayaraman, the signatures found therein are forged signatures and not routed through their offices. PW-39(H.Ramachandran) had categorically stated that in Exs.P8 to P12, the applicants signature are not found and they are not routed through their office of Engine Valves Limited. The prosecution witnesses had spoken to the effect that the ledger entries in respect of the loan application (Ex.P23) in the name of P.Sekar and V.Ramesh are not reflected in the respective ledger extracts.
13. Similarly, PW-4(P.Narasimhan) has deposed that the corresponding debit entry for Rs.4,500/- is not found in the worksheet marked as Ex.P29. In the ledger marked as Ex.P30, the loan amount of Rs.1,24,000/- given to V.Ramesh (PW-44) is not entered. All the documents pertaining to ledger debit entry and worksheets were in the custody of the Dealing Assistant(A-1). The trial Court had gone through the evidence let in by the prosecution in detail and arrived at a right conclusion that PW-8(U.Jayaraman), PW-38(R.Venkataramani), PW-41(P.Sekar) and PW-44(V.Ramesh) never had the saving bank account in REPCO bank at Anna Road Head Post Office and T.Nagar Head Post Office, Chennai, where the loan amounts sanctioned by PF office deposited. In the light of the overwhelming evidence against the appellants, the judgment of the trial Court is unassailable and needs no interference.
14. Point for consideration:
Whether the trial Court is right in holding the appellants guilty?
15. The case of the prosecution is that, the accused A1 to A4 had entered into the criminal conspiracy to cheat, impersonate and forge the loan application of the employees. They received the money by using forged documents, by opening the accounts in the Post Office and Bank by impersonation and thereby caused unlawful loss to the Employees Provident Fund Department to the tune of Rs.3,71,300/-.
16. A1(S.T.Sangathurajan) being the Dealing Clerk of loan application had taken into confidence the other accused, who were his friends and through them, forged loan sanction orders were encashed through the accounts opened by other accused by impersonation. PW-31 (V.S.Kamali) Dealing Assistant, who succeeded A1, had deposed that one Deivasigamani gave a complaint that she did not receive the loan amount. When she perused the scroll sheets, some of the scroll sheets were missing and some were torn and cancelled without any authorisation. She had also deposed that she succeeded A1 as UDC in Group No.21 in Royapettah Office, after A1 transferred to Tambaram. Therefore, one of the contention raised by the counsel for A1 that there is a confusion among the prosecution witnesses regarding A1's place of work found to be baseless because, from the evidence of PW-31, it is made clear that A1 was initially working as UDC in Group No.21 at Royapattah Office, later transferred to Group 52 at Tambaram. The omissions and misdeeds of A1 have been deposed by PW-31 and she could be the best evidence to speak about the misdeeds of A1, since she was his immediate successor to the seat.
17. PW-39 (H.Ramachandran) Deputy General Manager of Rane Engine Valves Limited and PW-44 (V.Ramesh) Chief Executive Officer in Duro Metalic Sunmark Limited are the witnesses, who have spoken about the misuse of their employees' name to impersonate and avail Provident Fund Loan fraudulently. H.Ramachandran (PW-39) in his deposition has said that whenever EPF advance applications are received from the employees, he has to process the same and authorise the advance application of employees. The nomination and declaration forms relating to the employees N.Neelakandan, C.Kothandam, P.Muthukrishnan, S.Venkataramai and U.Jayaraman are marked as Exs.P3 to P7. He has identified the signatures and handwritings of one Mr.Raju, who has prepared the nomination and declaration. In these exhibits, PW-39 has signed on behalf of the employer and he has identified the signatures also. Thus, the original forms relating to the employees of Rane Engine Valves limited has been identified by the person, who is competent to identify, since he is acquaintance with the writings and signatures found in it.
18. PW-39, on verifying Exs.P8 to P12 advance applications submitted in the names of N.Neelakandan, C.Kothandam, P.Muthukrishnan, S.Venkataramani and U.Jayaraman by mentioning EPF code number, has categorically deposed that, in those applications his signatures are not found. Somebody has forged looks alike the signatures on these applications. These applications were not routed through his office. He has further deposed that, his office maintained a register for receipt of the loan applications submitted by the employees for routing through his office and that register is marked as Ex.P95. While the genuine application will be reflected in Ex.P95, no details regarding Exs.P8 to P12 are found in this register, since they were not genuine and routed through PW-39.
19. PW-42(Arvamudhan) Executive Vice President of Sunmar Engineering Corporation and Dura Metalic had deposed that the particulars found in the loan application marked as Ex.P29 in the name of V.Ramesh are the details pertaining to V.Ramesh. But, it does not contain his signature as employer or the signature of V.Ramesh. What is found in Ex.P29 only a resemblance of his signature but, it is not his signature and he is not aware who signed in Ex.P29. His specimen signatures were given to the Investigating Officer during the course of investigation. In the cross examination, he has stated that Ex.P29 was not signed by V.Ramesh.
20. PW-29(Tmt.R.Hemavathy)Regional Provident Fund Commissioner (Grade II) took over the Administration and Vigilance Section of Chennai Office had detailed out the procedures involved in processing the Provident Fund Loan Application. The Dealing Clerk happens to be the key person in this and he plays a pivotal role in the said process, though he is not the signatory to the loan order. As a Dealing Assistant (A1) is supposed to acknowledge the receipt and make an entry in the work diary, then process the claim by verifying the particulars of Members Account and other detail tallies with Form-9. He has to update the balance in the Members Account ledger volume. He has to prepare the work sheet and debit the amount in the ledger volume and put his signature in the work sheet and the ledger volume. Thereafter, he has to submit them to the Section Supervisor, who in turn make entry in the withdrawal register and submit to the Section Supervisor. On verifying the entries, the Section Supervisor will forward the papers to AAO for his approval. The AAO before passing the payment, will verify as to whether the calculation is correct and the Member is eligible for advance.
21. PW-2 (N.D.Jagadeesan) Section Supervisor in the Provident Fund Office at Tambaram had deposed that, the code number of the Engine Valve Limited is TN2799, which falls under the SRO Tambaram Group-52. A1 was the Dealing Auditor of the said Establishment. He knows A1 and he has acquaintance with the signature and handwritings of A1. The genuine nomination and declaration Forms of N.Neelakandan, C.Kothandam, P.Muthukrishnan, S.Venkataramani and U.Jayaraman is identified by him as Exs.P4 to P7. They are employees of Engine Valve Limited. The corresponding EPF accounts of these employees are marked as Ex.P495; Ex.P5125; Ex.P6-159, and Ex.P7-286. The advance loan applications, which are marked as Ex.P8 to P12, received by the office and processed by A1(Dealing Auditor). He has initialled in those documents and made tick marks in these applications denoting he has verified the information furnished in the application forms. These loan application forms, which were prepared by A1, were approved and signed by AAO Parthasarathy. He admits in his chief examination that A1 requested his Assistant to negotiate with one Deivasigamani, who had lodged the complaint against him for unauthorised withdrawal. At the request of A1, AAO (Parthasarathy) mediated for A1 and settled the matter. After A1 paid Rs.24,500/- to Deivasigamani, the complaint was withdrawn.
22. From the deposition and documents exhibited through the above said witnesses, it is made clear that EPF loan applications were fraudulently prepared by A1. Whether knowingly or unknowingly the higher officials have singed. Probably, A1 might have misled them by showing entries in the ledgers and worksheets, which were later found missing. The prosecution has proved that A1 was in-charge of maintaining work sheets and the ledger pertaining to registering the receipt of loan applications. Through PW-39 (M.Ramachandran) and PW-42 (Aravamudhan), the prosecution has also proved that the advanced loan applications marked as Exs.P8 to P12 did not emanate from their Office. PW-7 (N.Neelakandan), PW-8 (U.Jayaraman), PW-39 (R.Venkataramani), PW-41 (P.Sekar) and PW-44 (V.Ramesh) have deposed that, they have not made any application for PF loan and the loan sanctioned in their names was not at their request and the applications made in their names do not contain their signatures. In the light of the facts that the opinion of the handwriting expert Ex.P45 (Y.Suriya Prasad) gains significance. The opinion of the expert may not be itself solely sufficient to base the conviction. But there is a strong corroborative evidence to support the opinion, so they need not be any doubt in accepting the expert opinion.
23. The fraud of cheating EPF Department by fabricating the loan orders and encashing them had been executed by A1 in connivance with A2 and A3. The role of A2 and A3 in the crime by impersonating themselves as beneficiaries and encashing the loan through the accounts at the Head Post Office of Anna Road and T.Nagar and REPCO Bank is proved through Ex.P37 account opening form in the name of P.Muthukrishnan; Ex.P43 account opening form in the name of N.Neelakandan; Ex.P44 account opening form in the name of C.Kothandam; Ex.P45 account opening form in the name of S.Venkataraman; Ex.P59 account opening form in the name of P.Sekar; Ex.P60 account opening form in the name of P.Ramachandran and Ex.P64 account opening form in the name of V.Ramesh in REPCO Bank. The proximity between A1, A2 and A3 is elucidated through the evidence of PW-30(K.Elavarasan). The money fraudulently deposited later fraudulently withdrawn by these accused. The opinion of handwriting expert implicating these accused cannot be brushed aside.
24. It is contended by the learned counsel appearing for A2 that not a single witness identified A1 as the author of the disputed documents. The evidence of PW-30, who has spoken about the proximity between A1, A2 and A3 and the evidence of PW-42(Aravamudhan) and PW-44(V.Ramesh), besides the opinion of the handwriting expert that the disputed signatures found in the withdrawal tally with the signatures of A2 is suffice to hold that A2 had impersonated as Ramesh and opened the account at REPCO Bank and withdrawn a sum of Rs.1,24,000/- through various cheques and withdrawal slips. In this regard, the evidence of PW-9 (G.Kanthamani), PW-12 (S.Kanagavalli), PW-14 (M.R.Meenakshisundaram) and PW-29 (R.Hemavathy) are also relevant and incriminating A2.
25. Mere non-identification of this accused signing the disputed documents cannot be a ground to acquit A2. Forging and impersonation are acts of crime. Any perpetrator of such crime will like to do that crime only in secrecy. It is the circumstantial evidence which will expose the crime. In this case also, the prosecution has established preparation of forged loan orders by A1 and encashment of those loan orders by opening the fictitious accounts in various names. The signatures found in the account opening forms and the withdrawal forms tally with that of A2 and A3. The loan orders were prepared and handled by A1. Therefore, the chain of conspiracy gets fully completed and the role of A1, A2 and A3 have contributed in completion of the chain. Since the accused are charged with the offence of conspiracy, each and every accused are jointly and severally liable for the offence committed. Therefore, this Court finds no error in the finding of the trial Court, which requires no interference. Hence, these appeals are liable to be dismissed.
26. In the result, These Criminal Appeals are dismissed. The judgment of conviction passed by the Additional Special Judge for CBI Cases/IX Additional City Civil Court, Chennai in C.C.No.24 of 2001 dated 29.01.2010 is hereby confirmed. The period of sentence already undergone by the accused is set off. The trial court is directed to secure the accused to serve the remaining period of sentence imposed by the trial Court.
03.08.2018 Index:yes Internet:yes ari To
1.The Additional Special Judge for CBI Cases/IX Additional City Civil Court, Chennai
2.The Inspector of Police, SPE/CBI/ACB/Chennai,
3.The Special Public Prosecutor(CBI), High Court, Madras.
DR.G.JAYACHANDRAN,J.
ari Pre-delivery judgment made in Crl.A.Nos.85,112, 151 of 2010 03.08.2018