Karnataka High Court
S Jayarajan S/O Late Swaminathan vs State By Cbi on 27 August, 2020
Equivalent citations: AIRONLINE 2020 KAR 2102
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF AUGUST 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.154 OF 2010
BETWEEN:
Shri S.Jayarajan,
Son of Late Swaminathan,
Aged about 62 years,
Mazdoor RBI Bangalore,
R/a 7/80, Hennur Road,
5th Cross, Lingrajpuram,
Bangalore-84. .. Petitioner
( By Sri Rakshith R., Advocate for
Sri S.Shankarappa, Advocate )
AND:
State by CBI,
S.P.E. Division,
Bangalore-560 009,
Represented by
S.P.P. High Court. .. Respondent
( By Sri Madhav Kashyap, Advocate
for Sri P.Prasanna Kumar, Advocate )
This Criminal Revision Petition is filed under Section
397 read with Section 401 of Cr.P.C. praying to set aside the
judgment of conviction in C.C.No.1567/1981 on dated
28.11.2005, pending on the file of 17th A.C.M.M., at
Bangalore and also the judgment of conviction confirmed by
Crl.R.P.No.154/2010
2
the Hon'ble XXXII Addl.City Civil and Sessions Judge and
Spl.Judge for CBI cases, Bangalore (CCH-34), in Criminal
Appeal No.1729/2005, dated 13.11.2009 and the petitioner
may be acquitted.
This Criminal Revision Petition having been heard
through Physical Hearing/Video Conferencing Hearing and
reserved for Orders on 20.08.2020, coming on for
pronouncement this day, the Court made the following:
ORDER
The present petitioner was accused No.3 in C.C.No.1567/1981, in the Court of learned XVII Addl.Chief Metropolitan Magistrate, Bengaluru, (hereinafter for brevity referred to as `trial Court'), who was tried alongwith other sixteen accused for the offences punishable under Sections 380, 381, 420 read with Section 120-B of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC'). He was convicted by the trial Court by its judgment of conviction and order on sentence dated 28.11.2005, for the offences punishable under Sections 381, 420 read with Section 120-B of IPC.
Crl.R.P.No.154/20103
Aggrieved by the same, the petitioner challenged the said judgment of conviction in the Court of learned XXXII Addl.City Civil and Sessions Judge and Spl.Judge for CBI Cases, Bengaluru (CCH-34), (hereinafter for brevity referred to as `Session Judge's Court'), in Criminal Appeal No.1729/2005. The said Court by its judgment dated 13.11.2009, while confirming the judgment of conviction and order on sentence passed by the trial Court, dismissed the appeal filed by the petitioner herein. Aggrieved by those judgments of conviction and order on sentence, the petitioner has preferred this Revision Petition.
2. The summary of the case of the prosecution in the trial Court was that the present petitioner and sixteen other accused from accused Nos.1, 2 and 4 to 17, were the employees at Reserve Bank of India, Bengaluru (hereinafter for brevity referred to as `RBI'), working in different capacities as Note/Coin Examiners, Crl.R.P.No.154/2010 4 Group Supervisors and Mazdoors etc., All these accused persons together with CW-1 K.M.Mathew hatched a criminal conspiracy during the year 1977 to 1979 in Bengaluru and in pursuance of the said criminal conspiracy, they started taking away punched currency notes either in loose or in packets from vaults where punched currency notes packets are stocked for burning and then these accused used to mix them with punched currency notes while punching and they used to take equal number of non-reissuable currency notes either in loose or in packets, which notes they used to exchange with fresh notes in exchange counter of RBI or take away those non-reissuable currency notes for circulation outside. CW-1 K.M.Mathew (then accused, later became approver), who was working as a Teller in RBI counter was also a participant in the conspiracy.
3. The criminal law was set into motion by Deputy Superintendent of Police of RBI/S.P.E. Later on, the Crl.R.P.No.154/2010 5 investigation was taken over by CBI, which after completion of the investigation, filed charge sheet against the accused persons for the offences punishable under Sections 380, 381, 420 read with Section 120-B of IPC.
4. During the pendency of the criminal case in the trial Court, accused Nos.1, 6, 10, 15 to 17 were discharged under Section 239 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `Cr.P.C.'). The case against accused Nos.2, 8, 12 and 13 was abated consequent upon their death. Charge was framed against accused Nos.3 to 5, 7, 9, 11 and 14.
5. Since the accused pleaded not guilty, in order to prove the guilt against them, the prosecution examined twentytwo witnesses from PW-1 to PW-22 and got marked documents from Exs.P-1 to P-51(a). The accused in their defence relied upon four documents Crl.R.P.No.154/2010 6 marked at Exs.D-1 to D-4, however, they did not lead oral evidence on their behalf.
6. After hearing both side, the trial Court by its impugned judgment dated 28.11.2005, convicted the accused for the offences punishable under Section 381, 420 read with Section 120-B of IPC and sentenced them accordingly, which judgment is confirmed by the learned Session Judge's Court.
7. Trial Court and Session Judge's Court records were called for and the same are placed before this Court.
8. Heard the arguments of learned counsel from both side and perused the materials placed before this Court.
9. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. Crl.R.P.No.154/2010 7
10. After hearing, the point that arise for my consideration is :
" Whether the impugned judgments of conviction and order on sentence passed by the trial Court and the Session Judge's Court suffers with any illegality or perversity warranting any interference at the hands of this Court?"
11. Sri Rakshith R., learned counsel appearing for Sri S.Shankarappa, learned counsel for the petitioner, in his arguments submitted that the petitioner won't dispute the fact that the present petitioner, who was accused No.3 in the trial Court, was a Mazdoor/Watchman in the RBI at the relevant point of time. He would also not dispute the concurrent finding of both the Courts below that there was theft of punched non-reissuable currency notes from the currency vaults of RBI, Bengaluru, cheating the RBI or the general public with those non-reissuable currency notes during the period 1977 to 1979, however, he strongly disputes Crl.R.P.No.154/2010 8 the alleged involvement of the petitioner in the alleged conspiracy of cheating and theft of currency notes. Learned counsel submits that the conviction pronounced by the trial Court is mainly based upon the evidence of PW-2- K.M.Mathew, who was also one of the accused in the beginning, however, later turned to be an approver. Thus, the trial Court ought to have looked for corroborative evidence before pronouncing the judgment of conviction. In his support, he relied upon the judgment of Hon'ble Apex Court in Sarwan Singh -vs- The State of Punjab, reported in AIR 1957 SC 637.
12. Sri P.Prasanna Kumar, learned counsel for the respondent in his argument submitted that the trial Court has applied dual test before pronouncing the judgment of conviction. Apart from the evidence of PW-2, the approver, the evidence of other material witnesses like PWs.5 and 7 also has proven the guilt of Crl.R.P.No.154/2010 9 the accused. As such, both the trial Court, as well as the Session Judge's Court have rightly convicted the petitioner for the alleged offences. He also submitted that scope of the Revision Petition is very narrow, as such, the entire evidence need not have to be re- appreciated in this petition. In his support, he relied upon four judgments of Hon'ble Apex Court in Raj Kumar -vs- State of Himachal Pradesh, reported in [(2008) 11 SCC 76], Bir Singh -vs- Mukesh Kumar, reported in [ (2019) 4 SCC 197], Saravanabhavan and Govindaswamy -vs- State of Madrss, reported in MANU/SC/0399/1965, and in R.Venkatkrishnan -vs- Central Bureau of Investigation, reported in [ (2009) 11 SCC 737].
13. Both the trial Court, as well as the Session Judge's Court have uniformly held that the prosecution has proved beyond reasonable doubt the act of conspiracy and theft of punched non-reissuable currency Crl.R.P.No.154/2010 10 notes from RBI and re-circulating them by cheating the receivers of those notes or Reserve Bank of India during the year 1977 to 1979 and thus, occurring of the offences punishable under Sections 381 and 420 read with Section 120-B of IPC. The petitioner herein has not disputed the said finding of the trial Court, however, his only contention in this Revision Petition is that the trial Court, as well as the Sessions Judge's Court have not appreciated the evidence of PW-2 in its proper perspective which has ultimately resulted in the pronouncement of conviction of the accused, more particularly, the present petitioner who was accused No.3 in the trial Court.
14. The present petition is a Revision Petition filed under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `Cr.P.C.'). The Hon'ble Apex Court in Crl.R.P.No.154/2010 11 Raj Kumar's case (supra), while discussing the scope of revision was pleased to observe at Paragraphs-10 and 11 of the judgment as below :
" 10. In State of Orissa v. Nakula Sahu [(1979) 1 SCC 328 : 1979 SCC (Cri) 283 : AIR 1979 SC 663] it was held that the High Court should not have interfered with the concurrent findings recorded by the trial court and the Sessions Judge in exercise of revisional jurisdiction when there was no error or fact or law arrived at by the trial court or the Sessions Judge.
11. In State of Kerala v. Puttumana Illath Jathaveda Namboodri [(1999) 2 SCC 452 :
1999 SCC (Cri) 275] it was held that the revisional jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate Crl.R.P.No.154/2010 12 the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
In Bir Singh's case (supra), the Hon'ble Apex Court at Paragraph Nos.16 and 7 of its judgment was pleased to observe as below :
" 16. It is well settled that in exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.
17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [(2008) 14 SCC 457], it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having Crl.R.P.No.154/2010 13 jurisdiction, in the absence of a jurisdictional error."
15. Thus, the only point that requires to be considered is the point of appreciation of the evidence of prosecution witnesses, more particularly, PW-2, who was an approver, by the trial Court, as well as the Session Judge's Court.
16. PW-2 who was initially an accused, but, later became an approver, has in his confession statement at Ex.P-1, which was recorded under Section 164 of Cr.P.C., has stated about various acts alleged to have been committed by the remaining accused persons, including the alleged commission of theft of cheating of Reserve Bank of India, Bengaluru, by stealing the punched non-reissuable currency notes packets and substituting the same with non-reissuable currency notes packets at the time of punching. The said witness in his evidence has given the details of how accused Crl.R.P.No.154/2010 14 Nos.2 and 4 approached him and revealed their plan of committing the alleged offence. He has also stated as to how accused No.4 and accused No.3 (present petitioner) brought the packets of non-reissuable currency notes of the denomination of each `100/- for its substitution and obtained its substitution with fresh notes in the exchange counter. He has also stated that, after such successful trial, the same was continued, which also led in November and December 1978, accused No.7 and accused No.9 approaching him on several occasions with soiled punched note packets of `100/- denomination for substituting them with the equivalent number of denominations of non-reissuable currency notes in the Punching Section at the time of punching. He has also revealed as to how those operations were successfully done by all of them, including himself, considerably for a long time and also has spoken about the commission Crl.R.P.No.154/2010 15 which he was getting from the remaining accused for his acts.
17. Learned counsel for the petitioner submitted that without there being any corroborative evidence supporting the evidence of PW-2 - K.M.Mathew, the trial Court ought not to have pronounced the judgment of conviction. In his support, he relied upon Sarwan Singh's case (supra). In Para-7 of its judgment, the Hon'ble Apex Court was pleased to observe as below :
" An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the Crl.R.P.No.154/2010 16 prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or the otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the Crl.R.P.No.154/2010 17 second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration."
Citing the above judgment, learned counsel for the petitioner submitted that even though PW-2 as an approver has supported the case of the prosecution, however, there is no corroboration to his evidence, as such, it was not safe to rely upon his evidence for convicting the petitioner. He further submitted that the antecedent of PW-2 who himself was an accused also prevents from believing his evidence as an accomplice/approver.
18. Learned counsel for the respondent in his argument relied upon the judgment of Hon'ble Apex Court in Saravanabhavan and Govindaswamy's case (supra), wherein at Para-8, the Hon'ble Apex Court was pleased to observe that the antecedents of the approver do not really make him either better or worse. His Crl.R.P.No.154/2010 18 evidence can only be accepted on its own merits and with sufficient corroboration.
19. With respect to the alleged conspiracy, learned counsel for the respondent relied upon the judgment of Hon'ble Apex Court in R.Venkatkrishnan's case (supra), wherein the Hon'ble Apex Court was pleased to observe that the criminal conspiracy is an independent offence. It is punishable separately. It takes place when there is an agreement to do or cause to be done an illegal act or an act which is not illegal, but, by illegal means. It was further held that conspiracy when allegedly hatched in secrecy, direct evidence is therefore difficult to become available. Criminal conspiracy can be proved on the basis of circumstantial evidence and/or by necessary implication.
Crl.R.P.No.154/201019
20. In the instant case, apart from PW-2, PWs.4, 5, 7, 20 and 21 have also given their supporting evidence to the case of the prosecution.
PW-4 who is one of the Mazdoor in Reserve Bank of India, Bengaluru, has stated that, at the relevant point of time, he was working as supplier in the Canteen. After two years, he was appointed as a Mazdoor in RBI. One day when he was near the Canteen, accused No.2 approached him and at that time, Jayaraj (accused No.2), S.Ramalingam (accused No.11) and Richard Pinto (accused No.5) were standing little away from him. Accused No.2 took out a packet from his possession and gave it to Pinto and told this witness not to tell Rajashekar about he giving packet to Pinto. Though the witness has not stated as to what was the content in that packet, but, the evidence of Crl.R.P.No.154/2010 20 other supporting witnesses goes to show that they were the packets of punched non-reissuable currency notes.
21. PW-5 who was then Teller in the Exchange Counter of Reserve Bank of India, Bengaluru, apart from stating that he knows the accused, has also stated that one day in 1978, at about 9.30 a.m., when he was in RBI, accused No.7-Narayanaswamy approached him and disclosed his plan of taking away punched non-reissuable currency notes and re- circulating the non-reissuable currency notes. He offered him some percentage of commission also if PW-5 helps them in executing their conspiracy. Since this witness refused to do the same, accused No.7 fell to his feet and requested not to disclose the same to anyone. Later, accused No.2 over the telephone put life threat to this witness in case if the witness discloses about the conspiracy to anyone.
Crl.R.P.No.154/201021
22. PW-7 who was then official in Reserve Bank of India, Bengaluru, has stated that during 1978, on one evening, when he had gone to a liquor shop to bring liquor to his father, he met Jayaraj (accused No.2), who was in an inabbreviated condition and shown this witness a tiffin carrier containing packets of `100/- denomination notes which were old and soiled and were non-reissuable currency notes. At the enquiry of the witness, he shown the present petitioner as the one who has supplied those notes.
23. The witness has further stated that, on the next day, accused No.2-Jayaraj once again met him in RBI, Bengaluru and asked for his help for exchanging the currency notes. However, the witness refused to do it. Thereafter, accused No.2 threatened him of taking away his life in the event if he discloses the same to anybody else. The witness has further stated that, after Crl.R.P.No.154/2010 22 some time, he came to know that some of his colleagues were suspended.
24. PW-20 being the Scientific Officer of Forensic Science Laboratory, at Delhi, to whom, MO-1 to MO-21 are sent for examination, has deposed that, he noticed the difference in holes put in respect of every single packet meant for stitching and he found that, some of the currency notes were inserted freshly and punched into the packets of unpunched non-reissuable currency notes. He has given the report and opinion about the same as per Exs.P-17 and P-18.
25. PW-21, the then Officer in Reserve Bank of India, Head Office, Bombay, has stated that he was deputed for inspection of Reserve Bank of India, Bengaluru, as such, he was engaged in inspecting work. He received an anonymous telephonic message that punched non-reissuable currency notes were being stolen from vaults. Immediately, he informed the same Crl.R.P.No.154/2010 23 to Head Office, from wherein, he was instructed to suspend his inspection work and ascertain the truth of telephonic message. Then he was also told by Vaults Officer to the same effect that he too received a telephonic message about the theft of punched non- reissuable currency notes from the vaults. Accordingly, both of them started checking up the punched notes packets and found irregularities in some of the packets, such as, affixture of new labels on and above the previous labels, stitching of the notes for the second time and irregular punching etc., Thus, they were confirmed that someone have played mischief with packets and bundles of punched non-reissuable currency notes by mixing and remixing punched currency notes into bundles while punching and labeling with labels. There were duplication of sealing with two different seals. He also noticed several other similar irregularities which made him to verify different Registers kept at Crl.R.P.No.154/2010 24 difference Sections, wherein also he found some overwriting and alteration in some of the Registers, from which, he confirmed that there are irregularities in respect of punched non-reissuable currency notes packets in the Vaults.
26. These evidence of the prosecution witnesses which could not be shaken in their cross-examination have been appreciated by both the trial Court and the Session Judge's Court in their proper perspective which have uniformly held that there was all the evidence to prove beyond reasonable doubt that the present petitioner, joined by the other convicted accused, had hatched a criminal conspiracy and in execution of the same, had committed theft of punched non-reissuable currency notes of the denomination of `100/- each from the vaults of Reserve Bank of India of Bengaluru and had reinserted punched notes as a replacement in non- reissuable currency notes and were also successful in Crl.R.P.No.154/2010 25 exchanging the removed non-reissuable currency notes in the Exchange Counter with the fresh notes.
27. Thus, the evidence of PW-2, the approver, was tested in the light of the evidence of the other material witnesses which also corroborate with the evidence of PW-2. Thus, it was only after dual test which confirmed the commission of the offences by the accused involving the present petitioner, both the Courts below have rightly held the petitioner guilty of the alleged offences. Since those judgments of conviction does not suffer with any incorrectness, illegality or perversity, I do not find any reason in interfering in them.
28. Similarly, the order on sentence pronounced by the trial Court also being proportionate to the gravity of the proven guilty against the petitioner, I find no reason to interfere in the judgment of conviction and order on sentence passed by the trial Court, which was further confirmed by the Session Judge's Court. Crl.R.P.No.154/2010 26
29. Therefore, I proceed to pass the following order:
ORDER The Criminal Revision Petition is dismissed.
Registry to transmit a copy of this judgment along with trial Court and Session Judge's Court records to the concerned Courts without delay.
Sd/-
JUDGE bk/