Bangalore District Court
Y.P. Chabra vs Mohammed Pervez And 4 Others on 29 June, 2024
1
C.C.No.16328/2008
KABC030203792008
Presented on : 23-08-2008
Registered on : 23-08-2008
Decided on : 29-06-2024
Duration : 15 years, 10 months, 6 days
IN THE COURT OF III ADDL. CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this Saturday the 29th day of June, 2024
Present : Shreyansh Doddamani
III ADDL. C.M.M., BENGALURU.
C.C.No.16328/2008
State by : Cubbon Park Police Station
(Represented by Special Public
Prosecutor Sri.B.Annegowda)
V/s
Accused 1. Mohammed Parvez (Abated)
S/o B.M.Iqbal,
Owner of Paresh Export,
No.23, 2nd Floor,
Royal Heritage Apartment,
No.18, Magarath Road,
Bengaluru - 25.
2. Shailendra M Dongarvar
S/o Manohar Dongarvar,
2
C.C.No.16328/2008
(Marketing Manager, PEC
Company, Bengaluru Branch),
Aged about 42 years,
Flat No.13, Progressive Colony,
Manovikasnagar Post,
Hasmathpet,
Sikandarbad,
Andhrapradesh.
3. K.Rajendran
S/o Kumaraswamy,
Aged about 49 years,
(Executive Assistant PEC
Company Bengaluru Branch),
No.25, 2nd Cross,
Chowdaiah Block,
RT Nagar Post,
Bengaluru-32.
4. Manamohan Nambiar
S/o M.Narayan Nambiyar,
(Assistant General Manager
Federal Bank, Bengaluru),
Aged about 58 years,
No.N-31, Federal Garden,
Aaluva, Kerala State.
5. P.M.John
S/o P.L.Mathew,
Aged about 48 years,
(Senior Manager),
Flat No.602-A,
Shivaranjini Apartment,
Banashankari 3rd Stage,
Bengaluru - 56.
(Represented by Sri.M.R.C.Manohar /
Vijaykumar.V Advs,)
3
C.C.No.16328/2008
Complainant Name : Sri.Y.P.Chhabra
Offences punishable 418, 420, 409, 468, 471, 120(B) of
under Section Indian Penal Code.
Date of Evidence 08.12.2015.
Commencing
Date of Evidence Ending 27.07.2023.
Charge Accused are pleaded not guilty
Final Order The accused No.2 to 5 are
convicted.
Judgment Date 29.06.2024.
(Shreyansh Doddamani)
III Addl., Chief Metropolitan Magistrate.,
Bengaluru.
:: J U D G M E N T ::
This Police Inspector of Cubbon Park Police Station, Bengaluru arising out of their Police Station Crime No.128/2007 against the accused No.1 to 5 for their alleged commission of offences punishable under section 418, 420, 409, 468, 471, 120(B) of Indian Penal Code (Herein after shortly called as IPC).4
C.C.No.16328/2008
2. The prosecution case in nut shell is that M/s. Project Equipment Corporation Limited (Herein after shortly called as PEC) the Government of India Enterprises, having its registered office at Hansalaya No.15, Barakamba Road, New Delhi and its branch office at Bengaluru in the limits of Cubbon Park Police Station. The said PEC is controlled by Ministry of Commerce Government of India. It was engaged in facilitating Import and Export of goods to and or from India. It is one of the agency by the Government of India to import gold and various jewelers and traders used of services of PEC for import the gold. Accordingly, one M/s.Paresh Exports (Pvt.) Ltd., (Herein after shortly called as Paresh) company incorporated and registered under the Companies Act, at Bengaluru and the accused No.1 Mohammed Parvez was its Director. He approached PEC in the year 2001 for facilitation of import of gold. The M/s. Paresh Company become an associated member of PEC since 2001. Paresh had imported approximately Rs.500 Crores worth of gold. Over the years PEC had entered into various Memorandum of Understanding with Paresh, evidencing the procedure with 5 C.C.No.16328/2008 regard to import of gold. The gold imported against the letter of credit opened on behalf of Paresh was delivered against the receipt of payment from Paresh towards the value of gold by way of demand drafts or pay order or fixed deposit receipts in the name of PEC or by deposit of said amount under the instrument PEC's Bank. Accordingly Paresh used to deposit with PEC under fixed deposit receipts or demand drafts or pay orders or cheques in the name of PEC for delivery of gold. The arrangement was being followed and PEC used to be the beneficiary of the fixed deposit receipts issued by the Federal Bank, Residency Road Branch, Bengaluru. The fixed deposit receipts were deposited with PEC by Paresh for the delivery of gold by PEC from time to time. The fixed deposit receipts issued by Paresh's Bankers, Federal bank, Residency Road Branch, Bengaluru were mainly under covering letters of Federal Bank addressed to PEC confirming that the said fixed deposit receipts will not be subject to lean or set off without consent of bankers of PEC i.e., Punjab National Bank, ECE House, K.G.Marg, New Delhi. In the month of November and 6 C.C.No.16328/2008 December 2004 and January 2005 Federal Bank issued following fixed deposit receipts.
FDR No. Date of Issue FDR Amount Date of
(In Rs. Crore(s) Maturity
(a) 098900 16.11.2004 1.00 15.02.2005
(b) 098492 23.11.2004 1.00 22.02.2005
(c) 098907 17.11.2004 2.00 16.02.2005
(d) 098951 24.11.2004 0.50 23.02.2005
(e) 098918 19.11.2004 0.30 18.02.2005
(f) 098868 08.11.2004 2.00 07.02.2005
(g) 098906 17.11.2004 2.00 16.02.2005
(h) 098885 10.11.2004 0.20 09.02.2005
(I) 099011 13.12.2004 2.00 14.03.2005
(j) 099012 13.12.2004 2.00 14.03.2005
(k) 099132 31.01.2005 2.00 02.05.2005
2.1. The above fixed deposit receipts were to matured only in the month of February, March and May 2005. During the January 2005, PEC received notice from the Income Tax Department with regard to certain proceedings initiated against Paresh (Accused No.1 company) and there were 7 C.C.No.16328/2008 certain prohibitory orders dated 28.01.2005 and 28.02.2005 issued against Paresh by the Deputy Director of Income Tax, in respect of the accounts of Paresh. Subsequently the said prohibitory orders were vacated. Thereafter, on the letter of PEC the payments under fixed deposit receipts in respect of Item No.A to J were made. Federal bank confirmed fixed deposit receipt Item No.A to H totally of Rs.8,10,00,000/- face value and matured value was Rs.8,20,34,654/-, thereafter said 8 Fixed Deposit receipts closed by the accused persons before maturity and a sum of Rs.3,17,58,287/- had been remitted to PEC in respect of the balance amount, Federal bank had informed that three new fixed deposit receipts bearing No.11932 (099132), 11933 (099133) and 11934 (099135) for Rs.2 Crore and Rs.1 Crore respectively was issued in favour of PEC. However, no details were given about fixed deposit receipts Nos.099011 and 099012 dated 13.12.2004 for Rs.2 Crore each.
2.2. In the year 2006 the new Chairman of Federal bank issued two letters dated 18.10.2006 and furnished 8 C.C.No.16328/2008 details with regard to the fixed deposit receipts Sl.No. A to K as shown above. It came to know that the said fixed deposit receipts were closed by Federal Bank prematurely i.e., prior to the date of maturity without to the knowledge of PEC. It was further noted that FD No.672301 dated 26.03.2004 for Rs.1 Crore, FDR No.672302 dated 26.03.2004 for Rs.1 Crore and FDR No.672307 dated 30.03.2004 of Rs.2 Crore were prematurely closed and interest Rs.21,33,402/- was credited to the account of accused No.1 company i.e., Paresh by Federal Bank. It came to know that the bank officials including the bank Directors in convenience with accused No.1 and other Directors and staff of Paresh and Mr.S.M.Dongarvar the accused No.2 herein, the then branch head of PEC Bengaluru office colluding with accused No.3 to 5 entered into criminal conspiracy to cheat the PEC, closed FDR No.099011 and 099012 dated 13.12.2004 of Rs.2 Crore each and fabricated and forged discharge letters and credited the amount of Rs.4 Crore to the account of accused No.1, when in fact the said original FD receipts were in the physical custody and lean of PEC's banker, Punjab National Bank 9 C.C.No.16328/2008 ECE House, K.G.Marg, New Delhi. The accused were closed the above FD receipts i.e., A to H of Rs.8,10,00,000/- maturity value of Rs.8,20,34,654/- and issued demand drafts Rs.3,17,58,287/- in favour of PEC and transferred an amount of Rs.5 Crore bearing FD No.099132 for Rs.2 Crore, 099133 for Rs.2 Crore and 099135 for Rs.1 Crore. The FDR's were handed over by Federal Bank to Paresh to facilitate him to take fresh delivery of gold for Rs.5 Crore from PEC. It further revealed on the letter dated 15.11.2006 of Federal Bank, it was confirmed that the accused had granted a loan of Rs.4 Crore on fixed deposit receipt No.672301 dated 26.03.2004 of Rs.1 Crore, 672302 dated 26.03.2004 for Rs.1 Crore and 672307 dated 30.03.2004 for Rs.2 Crore to PEC, even no such request was made by PEC to Federal bank and the same was done with criminal intent by the accused persons. It further revealed that the FD No.099132 for Rs.2 Crore was credited to the account of accused No.1 on the basis of fabricated and forged discharge letters dated 31.03.2005. When copies of the FD No.099132 was furnished by the bank to PEC at 02.01.2007, it was noticed 10 C.C.No.16328/2008 that there was a loan given on 04.04.2005 by Federal Bank without any authority and illegally and the said FDR was actually closed on 02.05.2005 thereby the accused have committed the above offences.
3. The investigating officer after investigation submitted charge sheet. On the basis of charge sheet this court has taken the cognizance for the above offences and registered the present case. During the investigation the accused No.2 and 3 were arrested and brought before this court. They claimed bail but this court rejected the application. Thereafter, when the investigating officer failed to file the charge sheet within time, the accused have released on the bail under section 167(2) of Cr.PC. The remaining accused persons i.e., accused No.4 and 5 obtained bail from Hon'ble District Court. The accused No.1 enlarged on bail by this court after registration of this case.
4. The copies of the charge sheet and documents supplied to the accused persons. Thereafter, the accused No.1 reported died. Hence case abated against the accused 11 C.C.No.16328/2008 No.1. After having heard both sides this court framed the charges for the above offences and read over and explained to the accused No.2 to 5 on 08.10.2005. They denied the charges and claimed to be tried.
5. The prosecution in order to prove its case examined the witnesses as PW-1 to PW-9 and the prosecution has relied on Ex.P-1 to Ex.P-149.
6. Incriminating circumstance has appeared against the accused No.2 to 5 in the prosecution evidence read over and explained to them. Having understood the same they have given their statement under section 313 of Cr.PC and same has been duly recorded by this court. The accused No.2 to 5 did not choose to lead defence evidence. During the cross examination by confronting the documents and got marked Ex.D1 to 6.
7. When it was posted for arguments the learned Special Public Prosecutor had filed application under section 216 of Cr.PC for making the amendment in the charge. Same was allowed on 11.08.2023. Again this Court altered the 12 C.C.No.16328/2008 charges, read over and explained to the accused No.2 to 5, the accused No.2 to 5 having understood the charges read over to them, they pleaded not guilty and claims to be tried. Thereafter, they have submits no further evidence both side. Hence posted for arguments. Thereafter, on 12.10.2023 the advocate for accused No.3 to 5 have filed application under section 216 of Cr.PC for alteration of charges, wherein they claimed to recall the order of this court. This court rejected the application, they preferred Writ Petition No.680/2023 same was allowed. Accordingly this court again altered the charges and read over and explained to the accused persons on 31.01.2024. The accused having understood, denied the charges and claims to be tried. Both have submits no further evidence. Already this court recorded the statement of accused No.1 to 3. Hence posted for arguments.
8. Heard the arguments both side. Both have filed written arguments and citations. This Court perused the written arguments and citations.
9. The following points arise for court's consideration, 13 C.C.No.16328/2008 POINTS
1. Whether the sanction of appropriate Government is necessary under section 197 of Cr.PC., to prosecute the accused persons?
2. Whether the prosecution, beyond reasonable doubts proves that accused No.1 being the Managing Director of M/s. Paresh Export Pvt. Ltd., accused No.2 and 3 being the officials of M/s. Project Equipment Corporation Ltd., accused No.4 being the Assistant General Manager and accused No.5 being the Sr. Manager of Federal Bank during the period between 5.1.2005 to 31.05.2005, deceased accused No.1 entered into criminal conspiracy with accused No.2 to 5 to cheat and cause loss to the complainant company and thereby accused have committed an offence punishable u/s.120B of IPC?
3. Whether the prosecution, beyond reasonable doubts proves that accused No.4 and 5 in pursuance of criminal conspiracy being and having dominion 14 C.C.No.16328/2008 over the FDR amount on 28.01.2005 accused No.4 received eight FDRs bearing Nos.098868, 098885, 098900, 098906, 098907, 098918, 098942, 098951 for a total sum of Rs.8,17,58,287/- from letter of credit No.9363 for encashment from accused no.2 and 3 which was the amount entrusted to accused persons by the complainant company and accused have closed 8 FDRs prematurely on 31.01.2005 and instead of remitting the amount to PEC account the accused diverted the amount to the account of accused No.1 and without authorization from PEC accused no. 2 to 5 created three fresh FDRs bearing No.099132, 099133, 099135 for Rs.5 Crores in the name of PEC and from these three FDRs deceased accused No.1 again took the delivery of gold twice from accused No.2 for Rs.5 Crores and caused loss to the PEC company and the remaining amount of Rs.3,17,58,287/- was remitted to PEC company account and thereby PEC company sustained loss of Rs.5 Crores 15 C.C.No.16328/2008 and on 13.01.2005 accused No.2 wrote discharge letter on FDR No.098868 to credit the amount to deceased accused No.1's account, thereby Accused No. 2, 3, 4 and 5 committed criminal breach of trust punishable u/s.409 of IPC?
4. Whether the prosecution, beyond reasonable doubts proves that accused No.2 and 3 being the officials of complainant company and accused No.4 and 5 being the Managers of Federal Bank, Residency Road branch, in pursuance of criminal conspiracy having knowledge that the funds belongs to the Central Government during the course of their import of gold business caused wrongful loss to the company though they were bound to protect the interest of Central Government money as it is a public fund and cheated the Government and thereby accused No.2 to 5 committed the offence punishable u/s.418 of IPC?
5. Whether the prosecution, beyond reasonable doubts proves that in pursuance of criminal conspiracy, on 31.03.2005 accused No.4 signed the 16 C.C.No.16328/2008 application for advances against approved securities for taking loan of Rs.4.5 Crores on 3 FDRs belongs to PEC company though he was not authorized to raise loan on 3 FDR No.11933, 11932, 11935 worth Rs.5 Crores and without any instruction from PEC accused No.4 filed loan application on behalf of PEC and submitted it to the Federal Bank and accused No.5 colluding with accused No.4 and with criminal conspiracy of deceased accused No.1 sanctioned the loan of Rs.5 Crores with an intention to cheat the company by violating the Federal Bank FDRs Norms and thereby committed an offence punishable u/s.420 of IPC ?
6. Whether the prosecution, beyond reasonable doubts proves that accused persons in pursuance of criminal conspiracy on 5.1.2005 deceased accused No.1 got letter head proforma of discharge applications from accused No.2 and filled the same and created a false document and affixed the photocopy signature of accused No.2 on it with 17 C.C.No.16328/2008 fraudulent intention to cause loss to the company and handed over to accused No.4 and 5 to close the FDR No.099011 and 099012 for Rs.2 Crores each and credit the amount to Accused No.1's Bank account without collecting the original FDR and without ascertaining the financial power of accused No.2 closed the FDRs and diverted the money to deceased accused No.1's account and caused loss of Rs.4 Crores to the company and thereby committed forgery for the purpose of cheating punishable u/s.468 of IPC ?
7. Whether the prosecution, beyond reasonable doubts proves that accused persons in pursuance of criminal conspiracy during the period from 5.1.2005 to 31.5.2005 accused No.2 prepared a false discharge letter of FDR and handed over to deceased Accused no.1 and accused no.2 in turn handed over this document to Accused no.4 and 5 for diversion of fund and created false discharge letter by affixing the photo copy signature on 2 FDRs of PEC and used the 18 C.C.No.16328/2008 said documents as genuine documents by forwarding the same to Federal Bank to divert the fund of PEC to the account of deceased accused No.1 and thereby committed the offence punishable u/s.471 IPC?
8. What order?
10. The court's answer to the above points are as follows;
Point No.1 : In the Negative.
Point No.2 : In the Affirmative.
Point No.3 : In the Affirmative.
Point No.4 : In the Affirmative.
Point No.5 : In the Affirmative.
Point No.6 : In the Affirmative.
Point No.7 : In the Affirmative.
Point No.8 : As per final order for the following;
REASONS
11. Point No.1: Before discussing anything about the case of the prosecution, it is necessary to record a finding on this point, to proceed against the accused. 19
C.C.No.16328/2008
12. The learned advocate for accused No.2 and 3 argued that accused No.2 and 3 were public servants, they were discharging their duty in their official capacity. Therefore before prosecute against him sanction from the Central Government is necessary. But in the present Case Sanction was not obtained. Hence, they prayed to acquit the accused persons.
13. Admittedly the accused No.2 was the Branch Manager PEC branch office Bengaluru and accused no. 3 was Executive assistant PEC, Branch Bengaluru. The PEC Ltd is a Public sector undertaking under Ministry of Commerce and Industry, Government of India. They have been governed by PEC Ltd, Employees' (Conduct, Discipline & Appeal Rules, 1975), as per the said rules they are also public servants, therefore before discussion of the prosecution case it is necessary to looked into whether sanction is required to prosecute the case against the accused No.2 and 3 as per section 197 of the Criminal Procedure Code. For more clarification the Section 197 of Cr. P. C. is extracted as under:-
197. Prosecution of Judges and public servants. 20
C.C.No.16328/2008 (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government : Provided Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued 21 C.C.No.16328/2008 under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government"
occurring therein, the expression"
Central Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the
Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression"
Central Government" occurring
22
C.C.No.16328/2008
therein, the expression" State
Government" were substituted.
1
(3A) Notwithstanding anything
contained in sub- section (3), no
court shall take cognizance of any
offence, alleged to have been
committed by any member of the
Forces charged with the maintenance
of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code 23 C.C.No.16328/2008 of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted and may specify the Court before which the trial is to be held.
14. It is clear from the above provision that sanction under section 197 of Cr. P. C. is not necessary in respect of every public servant, Other than for a Judge or Magistrate, this sanction is required only in respect of a public servant. If a 24 C.C.No.16328/2008 public servant removed from his service by an authority then the sanction is not required. Who is in service, sanction would be needed only if the alleged offence was committed by him while acting or purporting to act in discharge of his official duty. If the offence was committed in his personal capacity or in any manner, which is not while acting or in discharge of his official duty or purporting to act so, then the sanction is not required. Therefore, if any offence is committed, whether under the Indian Penal Code or under any other Act, which was committed by him while acting or purporting to act in discharge of his official duty, sanction is necessary.
15. In the present case on hand the allegation upon the accused no.2 and 3 is that they have created false discharge applications and closed the Fixed Deposit Receipts before maturity without permission of higher authority and diverted the fund to accused no.1 and caused loss to the PEC Ltd. And thereby committed breach of trust to the Government and PEC. The act of accused No.2 and 3 nowhere connected in discharge of their official duty. It is pertinent to note that the alleged act is not the official duty of the public servant. It is an illegal act 25 C.C.No.16328/2008 committed by the accused persons. It is well settled principle of law that for the prosecution of breach of trust, forgery and misappropriation by a public servant, sanction is not required. These acts are not part of official duties. Therefore in this case sanction for prosecution against the accused no.2 and 3 is not required.
16. Regarding the accused No.4 and 5 is concerned, they were Federal Bank employees, the accused no.4 was Assistant General Bank Manager, Federal Bank, Residency Road Branch and the accused No.5 was Senior Manager, Federal Bank, Residency Road Branch, Bengaluru. The Federal Bank is private sector Bank. Therefore, they are not coming under the meaning of Public Servant as defined under section 21 of Indian Penal Code. However, if considered as the banking sector being governed by the Reserve Bank of India and considered as a limb of the state under Article 12 of the Constitution of India and also by virtue of Banking Regulation Act, considered the accused no.4 and 5 deemed to be public servants, it is only for purpose of Prevention of Corruption Act 1988, it can not be extended to the IPC. As for shake of 26 C.C.No.16328/2008 arguments for a moment that the accused no.4 and 5 herein should be considered as a public servants for the IPC, sanction also, the protection available under section 197 of the Cr.P.C., are not fulfilled, as the alleged act of the accused persons is not a part of their discharge of duty. It is alleged that they colluding with accused No.1 to 3 diverted the fund of PEC to accused no.1. Therefore, nowhere connected in discharge of their official duty. It is pertinent to note that the alleged act is not the official duty of the public servant. It is an illegal act committed by the accused persons. Therefore, sanction as per section 197 Cr.P.C., is not necessary. Hence, this Court answered point No.1 in the negative.
17. Point No.2 to 7: These points are interlinked to each other, therefore this court considered these points together for common discussion to avoid the repetition of facts and circumstances of this case.
18. In order to bring home guilt of the accused persons the prosecution has examined nine witnesses as PW-1 to PW- 9 out of 13 witnesses cited in the charge sheet and got marked Ex.P-1 to Ex.P-149.
27
C.C.No.16328/2008
19. CW-3-S.M.Mohapatra, who was the General Manager (Finance) PEC Head Office at Delhi was examined as PW-1. He supported the prosecution case. He deposed that the business of the PEC company was importing and exporting of engineering goods, commodities including gold and silver. There were as many as branches all over India including Bengaluru Branch. He identified the accused No.2 and 3 who were working during the 2004-2005 in the Bengaluru Branch as a Branch Manager and Assistant Manager. He deposed that Branch Manager was responsible in all respect bullion trade. He explained procedure of gold trade business of PEC company. They used to purchase gold from Austerlia through import, as per the terms and conditions would be incorporated in the agreement regarding import of gold from Austerlia. There was separate division under the name marketing division, after import of gold Austerlia they used to keep up in Bengaluru in IDBI Vault. The vault was opened in the name of PEC Company. The Branch Manager was responsible for maintaining the vault. The accused No.1 was the main purchaser of the gold under 28 C.C.No.16328/2008 the Paresh Exports. The Branch Manager preparing delivery orders. The delivery orders contains prices of the gold, bank charges and service charges if anybody wanted to purchase the gold the company would fixed the rate at the prevailing market rate. Buyer shall pay price of gold in the form of FDR in favour of PEC company. It is a practice that the period of three months i.e., 90 days. The accrued interest of this period will be given to the buyer. He further deposed that letter of credit is in respect of Punjab National Bank, New Delhi. If purchase of gold was reported, then Punjab National Bank would give the money on behalf of the company to the foreigners. It was procedure that FDR will be submitted to the bank. The Punjab National Bank has got right of lien over the FDR. It is the procedure that before the maturity date of FDR. They requested to submit the FDR to their branch, then their branch send the FDR to Bank and Bank will encash the amount. He also explained the prosecution version.
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C.C.No.16328/2008
20. CW.1 Y.P.Chhabra who was Chief General Manager of PEC Company lodged an FIR before the SHO, Cubbon Park Police Station on 13.07.2007 as per Ex.P-60 and thereby set the criminal law into motion. He was examined as PW-3. He reproduced the prosecution case in his chief examination.
21. CW.13 (PW-7) C.R.Ravishankar registered an FIR on the basis of Ex.P-60 complaint in Crime No.128/2007 and submitted as per Ex.P-123 to the Hon'ble Court. On 16.07.2007 he arrested the accused No.2 and recorded his statement and took specimen signatures and produced him before the Court. On 17.07.2007 he visited Federal Bank and collected the documents from CW-9 subjected to PF No.91/2017. CW-9 produced the documents along with covering letter as per Ex.P-125. The documents produced along with Ex.P-125 letter the investigating officer seized the said documents as per PF No.91/2007 i.e., Ex.P-124. Accordingly, the PW-3 had produced Ex.P-2 to 9 and Ex.P- 61, 62, 64, which are original fixed deposit receipts and other documents. On 18.07.2007 he collected the documents as 30 C.C.No.16328/2008 per PF No.92/2007 which is marked as per Ex.P-126. The documents are marked as Ex.P-26, 27, 65 to 69. Ex.P-4 and 47 are the original loan applications i.e., credit facilities applied by accused No.2 and Ex.P-47 is the original loan application applied by accused No.3. Ex.P-26 is the photo copy of discharge letter alleged to have created by accused No.2. The original copy marked as Ex.C-1. The signature of accused No.2 is marked as Ex.P-26(a). Ex.P-27 is the photo copy of discharge letter alleged to have created by accused No.2 and original copy marked as Ex.C-2. The signature of Ex.P-27 is marked as Ex.P-27(a). Ex.P-65 to 69 are the original fixed deposit receipts bearing No.099133, 099135, 672301, 672302, 672307 respectively. On 21.07.2007 he collected the documents as per subjected to the PF No.93/2007 which is marked as Ex.P-128. The documents are marked as Ex.P-63 and Ex.C-1 and Ex.C-2. Ex.P-63 is the loan application filed by accused No.4 on behalf of PEC Company. Ex.C-1 and Ex.-C2 are the discharge letters alleged to have forged by accused No.2. He has also collected Ex.P-130 which is terms of fixed deposit issued by Federal 31 C.C.No.16328/2008 Bank. On 24.07.2007 he collected the documents from PW-2 subjected to PF No.96/2007 which is marked as Ex.P-131, wherein he collected documents in three annexures in annexure-1 Ex.P-1, Ex.P-15, Ex.P-16, Ex.P-17 to Ex.P-24, Ex.P-26 and Ex.P-27 and in annexure-2 he has collected Ex.P-8 to Ex.P-45 documents and in annexure-3 he collected Ex.P-70 to Ex.P-74. Ex.P-1 is the letter dated 28.01.2005 by PW-1 to PW-6 New Delhi in respect of eight fixed deposit receipts. It is relevant to note here that Ex.P-25 and Ex.D-2 and Ex.P-1 are also one and the same. Ex.P-15 is the letter dated 06.11.2006 issued by accused No.4 on behalf of Federal Bank in favour of the General Manager PEC Limited New Delhi. Ex.P-16 is the receipt of issued by Federal Bank in respect of complaint of M/s.PEC Limited. Ex.P-17 is the letter dated 15.11.2006 issued by accused No.4 to the General Manager, PEC Limited, New Delhi. Wherein, he justified the premature of fixed deposit receipts and raised loan and renewed the fixed deposit receipts and discharge the fixed deposit receipts and also justified about credited the amount to accused No.1 account. Ex.P-18 is the letter dated 32 C.C.No.16328/2008 19.12.2006 issued by accused No.4 to the General Manager of PEC Limited, New Delhi, wherein the accused No.4 stated that the letter issued on reference of PEC/Bullion/2006 dated 07.12.2006 and he answered that regarding the fixed deposit payment entries connected with M/s Paresh Exports Limited i.e., accused No.1. He submitted that already details of payment of fixed deposit amount submitted to PEC as payment made to PEC or accused No.1. Ex.P-19 is the letter dated 29.12.2006 issued by Deputy General Manager, Federal Bank addressed to Director, PEC Limited, Hamsalaya, New Delhi. Ex.P-20 is the letter dated 02.01.2007 issued by accused No.4 in for all Director PEC Limited. Wherein the accused No.4 stated that the enclosed photo copies of fixed deposit receipts and copies of discharge instruction are credited to the account of accused No.1 i.e., Paresh Exports Pvt. Ltd. Ex.P-21 is the letter dated 03.03.2007 issued by accused No.4 in favour of PW-1/General Manager PEC Limited by name Y.P.Chhabra. Wherein the accused No.4 denied the allegations made by the PEC and justified for his alleged act. Ex.P22 is the letter 33 C.C.No.16328/2008 issued by General Manager, Reserve Bank of India addressed to General Manager PEC Limited, New Delhi. Ex.P-23 and Ex.P-24 are the letters dated 13.01.2007 issued by Manager, Punjab National Bank addressed to Chief Finance Manager PEC Limited, New Delhi in respect of fixed deposit receipts and lien letters. Ex.P-25 is the letter issued by General Manager PEC Limited to Chief Manager Punjab National Bank. Ex.P-28 is the certified copy of letter dated 23.04.2007 issued by PEC Limited addressed to accused No.4. Ex.P-29 is the certified copy of letter dated 15.02.2007 issued by Director PEC Limited addressed to Chairman the Federal Bank Limited. Ex.P-30 is the certified copy of letter issued by PEC Limited in favour accused No.4. Ex.P-31 is the certified copy of letter dated 02.01.2007 issued by Director PEC Limited addressed to Chairman, Federal bank. Ex.P-32 is the letter dated 21.12.2006 by PEC lean addressed to Chairman of Federal Bank Limited. Ex.P-33 is the certified copy of letter issued by PW-1, General Manager PEC Ltd., addressed to accused No.4. Ex.P-34 is the letter dated 13.11.2006 issued by PW-1 addressed to Assistant General 34 C.C.No.16328/2008 Manager, Federal bank Limited. Ex.P-35 and Ex.P-36 are the letter dated 13.11.2006 by PEC Limited address to Chairman, Federal Bank Limited dated 31.10.2006. Ex.P-37 is the letter issued by PEC addressed to the Assistant General Manager, Federal Bank dated 31.07.2006. Ex.P-38 is the letter issued by PEC Limited in favour of Chairman, Federal Bank Limited dated 23.10.2006. Ex.P-39 to Ex.P-45 are the letters communicated by PEC Limited to the Federal bank. On 01.08.2007 he collected documents subjected to PF No.97/2007 which is marked as Ex.P-133 he seized the documents and subjected to PF No.107/2007 same is marked as Ex.P-133. The covering letter issued by Cw-9 is marked as Ex.P-134. The account statement of PEC Limited which are marked as Ex.P-135 and Ex.P-136. He collected the documents on 07.09.2007 subjected to PF No.110/2007 as per Ex.P-137. The documents are certified copy of appointment letter of accused No.3 which is marked as Ex.P- 12 and letter is marked as Ex.P-13. On 12.10.2007 he collected lease agreement and picture and furniture agreement subjected to PF No.117/2007 which is marked as 35 C.C.No.16328/2008 Ex.P-138. On 19.10.2007 he collected the documents along with covering letter subjected to PF No.122/2007 which is marked as Ex.P-139 and letter is marked as Ex.P-140. On 27.12.2007 he collected the 14 documents and seized in PF No.151/2007 which is marked as Ex.P-141 and the documents are marked Ex.P-76 to Ex.P-79 and Ex.P-48 to Ex.P-53 and Ex.P-81 and Ex.P-10. He obtained specimen signature of accused No.4 and 5 on 18.02.2008 as per Ex.P- 142 and 143 and send the said specimen signatures along with disputed signatures to the FSL for experts opinion on 22.08.2008. He collected the documents seized in PF No.68/2008 which is marked as Ex.P-144 and letter is marked as Ex.P-145. After obtaining experts opinion he submitted the charge sheet. During the above investigation he also recorded the statement of other witnesses.
22. CW-6-Gurpal Singh who was the Marketing Manager of PEC Limited, Bengaluru Branch was examined as PW-2 he supported to the prosecution case. He deposed about procedure of establishment of LC and procedure of 36 C.C.No.16328/2008 purchase the gold. He further deposed that he produced documents subjected to PF No.96/2007, PF No.97/2007 and PF No.101/2007 and letter which are marked as Ex.P-11 to Ex.P-44.
23. CW-5-Ravindra Chadha who was the Manager of Punjab National Bank, ECE House Branch, K.G.Marg, New Delhi was examined as PW-4. He deposed that PEC Company had written a letter to their bank on 13.01.2007 with respect to release of fixed deposit receipts. PEC had asked to issue certificate regarding release of 14 fixed deposit receipts. Accordingly, they issued two letters to PEC company. The said letters are marked as Ex.P-23 and Ex.P-
24. He identified the signature on Ex.P-23 and Ex.P-24 letters. He further deposed that out of 14 fixed deposit receipts stated in Ex.P-23 fixed deposit receipts were pertaining to the Federal Bank, Bengaluru. The said fixed deposit receipts got released on 28.01.2005 as per Ex.P-24 one fixed deposit receipt is pertaining to the Federal Bank and it was released on 21.02.2005. He identified Ex.P-25 37 C.C.No.16328/2008 which is letter issued by PEC company to their bank. He further deposed that they only release nine fixed deposit receipts in LC No.9363/2004 dated 30.10.2004 as per Ex.P- 23 and LC No.9385/2004 dated 25.11.2004 as per Ex.P-24. In the cross examination he deposed that as for as PEC company is concerned it was required to submit a request letter to open a letter of credit (LC). There was a format wherein all the details were required to be fill up details means name of supplier, amount of letter of credit, tenure period, description of goods etc are required to be fill up in the format. After submitting the request letter to open LC in format by PEC Company, then normal procedure to ask margin money as per sanction with PEC company. Limit of margin money depends subject to the sanction. The Punjab National Bank takes cash margin or fixed deposit receipts from PEC as security time to time of opening of letter of credit. He admitted that normal products was after furnishing security, LC will be opened and there was separate file maintained in the bank as for as fixed deposit receipt in the concerned. The letter of credit contents details of fixed 38 C.C.No.16328/2008 deposit receipts and other particulars. Letter of credit file and fixed deposit receipt registered will be kept in the safe custody of the bank till the date of maturity. He admitted that Ex.P-2 to 9 fixed deposit receipts have been referred in Ex.P-23. He further admitted that in respect of Ex.P-24 LC No.9385/2004 was opened on 25.11.2004, wherein out of five fixed deposit receipt one fixed deposit receipt bearing No.099012 i.e., Ex.P-61 belongs to Federal Bank which was issued on 13.12.2004. Further he denied the suggestions.
24. CW-7-V.M.Sekara who was Marketing Manager of PEC examined as PW-5. He supported to the prosecution version. He deposed that the Cubbon Park Police asked to submit documents accordingly he produced 14 documents along with covering letter. He identified the covering letter which is marked as Ex.P-75. He identified the documents which he had produced the same are marked as per Ex.P76 to 79, Ex.P-48 to 53 , Ex.P-82, 117 and Ex.P10. In the cross examination he admitted that PEC company delivered the gold to the customers only after the receipt full value as per 39 C.C.No.16328/2008 the delivery order and the fixed deposit receipts should be encashed by the PEC directly through banking channels. He further admitted Ex.P-95 to 117 documents have no name and designation, seal and also date is not mentioned.
25. CW-10-Udaykumar Shetty who was Deputy Vice President of Federal Bank examined as PW-6, he deposed that he was working as Senior Manager in Federal Bank, Residency Road Branch, Bengaluru from May 2008 to June 2008. At that time CW-9 was AGM. The Senior Manager was authorized to sanction loan up to 5 lakhs against the terms deposits. The AGM was authorized to sanction loan up to Rs.5 Crore. The Police recorded his statement when he was working as Senior Manager in the said branch. He identified the Ex.P-46 and 47 loan applications AGM sanction pertaining to AID 1404 and 1497 recommended by Yogeshwar Rao and Mr.John. The accused No.4 sanctioned the loan pertaining to Ex.P-46 and 47. In the cross examination he admitted that working was allotted to the officials as per work allotment procedure. He said that when 40 C.C.No.16328/2008 fixed deposit receipts came for closure, then it will be handle by Assistant Manager or Manager. At the time of closure of the fixed deposit receipts the accused No.4 was working as Assistant General Manager and accused No.5 was working as a Senior Manager. He further deposed that when fixed deposit receipts were presented after maturity or before maturity the said amount goes to beneficiary.
26. CW-13-C.R.Ravishankar who was investigating officer in this case and he was examined as PW-7. He deposed by narrating the manner of conducting the investigation and submitted report.
27. One Aman Jain who was Manager of complainant's company was examined as PW-8. He identified the accused No.2 and 3 and he deposed that he was GPA holder of complainant company and he was authorized to give evidence in No.956/2008.
28. One Dr.Kumuda Rani who was handwriting and signature expert was examined as PW-9 she deposed par with Ex.P-146.
41
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29. On perusal of the cross examination of above witness the accused No.2 and 3 have denied the allegations and taken the defence that there was no illegality, they had acted in accordance with law as per permission of the higher authority. No offences are attracted. There was no loss the complainant company etc. The accused No.3 to 5 have also denied the allegations and taken the defence that as per the letter of PEC company limited the accused No.4 and 5 being the employees of Federal Bank. There was no illegality everything is in accordance with law. The Reserve Bank of India also have conducted department inquiry charge have not been provided against them. Hence they have been continued in duty.
30. To proceed the case the Government has appointed Sri.B.Annegowda as a Special Public Prosecutor on behalf of PEC company limited. The learned Special Public Prosecutor addressed arguments that PEC has been controlled by Ministry of commerce Government of India. The accused No.2 and 3 were working at PEC, Bengaluru Branch as a 42 C.C.No.16328/2008 Manager and executive assistant. The accused No.1 who was sole Proprietor and Managing Director of M/s.Paresh Exports Pvt. Limited, engaged in import of gold from foreign countries through PEC. The accused No.4 and 5 were employees of Federal bank. The accused No.1 to 5 colluded each other made criminal conspiracy against the PEC company and closed the fixed deposit receipt before maturity and created two fresh FD receipts without any authorization and credited the amount to the accused No.1 illegally. In stead of credited to the PEC company they have also raised loan on the fixed deposit receipts without permission of the higher authority. The accused No.4 and 5 having knowledge that the funds belongs to the PEC company but diverted the funds to accused No.1. The documents clearly shows that the accused have committed the above offences. The accused No.2 and 3 being the employees of PEC company misused their position closed the fixed deposit receipts before maturity and diverted the amount to the accused No.1 and caused loss to the complainant company. The prosecution has proved the allegations beyond reasonable doubt by producing 43 C.C.No.16328/2008 necessary documents Ex.P-1 to 149. Therefore he sought for convict the accuse persons. He has also filed written arguments and also submitted citations before this court. I have perused the written arguments. The learned Special Public Prosecutor has relied on following decisions;
1. (2015) Supreme Cases (Cri.) 145 in the case of Vinayak Narayan Deosthali Vs. Central Bureau of Investigation in Criminal Appeal No.346 of 2004.
2. Criminal Appeal No.1159/2012 (Arising out of SLP (Cri.) No.7526 of 2011 in the case of Sadhupati Nageswara Rao Vs State of Andhra Pradesh reported in Hon'ble Supreme Court of India.
3. (2013) 1 Supreme Court Cases (Cri.) 891 (2013) 2 Supreme Court Cases 162 in the case of N.V.Subbarao Vs. State by CBI/SPE, Visakhapatnam, Andhra Pradesh.
4. (2010) 1 Supreme Court Cases (Cri.) 513 (2009) 12 Supreme Court Cases 126 in the case of Y.Venkaiah Vs State of Andhra 44 C.C.No.16328/2008 Pradesh in Criminal Appeals No.1279 of 2004 with Nos.1280-83 of 2004.
5. (2010) Supreme Court Cases (Cri.) 164 (2009) 11 Supreme Court Cases 737 in the case of R.Venkatkrishnan Vs Central Bureau of Investigation.
6. 2016 Cri. L.J. 4146 (Supreme Court) in the case of Sukh Ram Vs/ State of Himachal Pradesh in Criminal Appeal No.224 of 2012 with 2290-2291 and 2292-2293 of 2014.
7. (1997) Crimes 53 (cal) in the case of Afzauddin Ansary 4 Others Vs. State West Bengal.
8. (2018) Kar. Law Journal P. 161(DB)
9. 2003 Cri. L.J. Page 687 SC
10. (2006) SC (Cri.) 681 in the case of Trimuk Moroti Kiran Vs. State of Maharashtra in Appeal (Crl.) 1341 of 2005.
11. (2014) SC (Cri.) 1239 in the case of Indo Asian Ltd. Vs. State of Uttarkhand and Anr in Criminal Appeal No.215 of 2014 (Arising out of SLP (Crl.) No.3399 of 2012) 45 C.C.No.16328/2008
12. (2021) S.C.C. (Cri.) 381 in the case of Prahlad Vs State of Rajasthan in Criminal Appeal Nos.1794-1976 of 2017.
13. 2014 (3) Crimes 416 Supreme Court of India in the case of Mahavir Singh Vs. State of Haryana in Criminal Appeal No.2231 of 2010.
31. The learned advocate for accused No.2 has addressed arguments that it is an admitted fact that the accused No.2 and 3 were the employees of PEC Company Limited. Whatever allegations made against the accused No.2 is false and intentionally involved in this case. The accused No.2 has not signed on Ex.P-47 which is alleged to have submitted loan application by this accused. Handwriting expert not verified fixed deposit receipts. The investigating officer has not send the Ex.P-25 to 27 the discharge letters alleged to have created by this accused to experts and not taken the experts opinion. The accused No.2 has not signed to the Ex.P-55 to 59 which are lean confirmation letters. The handwriting on above letters is not belongs to the accused No.2. The accused No.2 has not 46 C.C.No.16328/2008 signed on above documents. The Ex.P-3 to 8 are also not having signature of accused No.2. The accused had sent the letter to PEC for permission to withdraw the fixed deposit receipts. After permission they had proceeded. Whether the fixed deposit receipts encashed and letter of credit received not provided by the prosecution. After permission of PEC and letter of credit issued then only fixed deposit receipt send to encashment, though documents marked, no signature of accused No.2 found in any documents. In respect Ex. 146 is consented the material documents are said to have fraud by accused No.2 is not produced before this court. The PEC admitted that Rs.3 Crore encashed by PEC but where Rs.5 Crore has been gone, but there is no role of accused No.2 in this case. But there is no consisting in handwriting experts opinion. No charge have been proved against the accused No.2. There are main allegations against accused No.1 only. Therefore, he sought for acquit the accused No.2. He also read cross of PW-1 during the arguments. 47
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32. Learned advocate for accused No.3 to 5 has addressed the arguments that whatever indent produced by accused No.1 to Punjab National Bank then Punjab National Bank issued letter of credit. There was indents of Rs.870 lakhs. Hence, Punjab National bank was issued letter of credit thereafter the accused No.1 was taking delivery of gold. But in turn of Rs.870 lakhs there was no documents how it come to accused No.1. The Federal Bank is private bank, so accused No.4 and 5 are not coming under section 409 of IPC. They were not Government employees or servants. There is no entrustment on accused No.4 and 5. Section 409 is not attracted against accused No.4 and 5. Section 418 and 420 of IPC are also not attracted against the accused No.4 and 5. The ingredients of Section 415 of IPC are not at all attracted. Nobody, prosecution witness deposed about cheating. The accused No.4 and 5 are not beneficiaries. No wrongful loss to the complainant and no wrongful gain to this accused persons. There is no allegations of forgery for purpose of cheating against the accused No.4 and 5. Therefore, section 468 of IPC is not attracted against these accused persons. 48
C.C.No.16328/2008 During the closing of fixed deposit receipts, the PEC has not raised any objection and also not raised petitions during the creating of fresh fixed deposit receipts. Therefore, the question of forgery the documents and used the forged documents as genuine does not arise. After two years of incident they have filed this complaint. The have filed this complaint only to save the senior officials of PEC. They have not explained the delay to lodging the complaint. Mere discharge letter issued by accused No.2 fixed deposit receipts were closed and amount was credited to the accused No.1. Therefore, the accused No.1 should explain. After thorough inquiry the Reserve Bank of India given clean chit to the accused No.4 and 5. The some of the documents are xerox documents the said documents not admissible in evidence. He read the cross examination of all witnesses and drawn the attention of this court towards admission of witnesses and explained the each and every documents and relied so many citations. No allegations proved against these accused persons. Hence sought for acquit the accused No.3 to 5. 49
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33. On perusal of the documents on record it reveals that the accused No.1 who was the Managing Director of M/s.Paresh Exports Private Limited entered into an agreement with the PEC to import gold and silver as per Ex.P-70, 71 and 72 agreements time to time, it is an admitted fact. As per the said agreements accused No.1 agreed to import the gold and silver through PEC under its usance Letter of Credit (in short called as LC). Accordingly, it is an admitted fact that to import gold or silver accused no.1 shall request PEC to obtain proforma invoice from Overseas supplier. The complainant company i.e., PEC should fixed the price of the gold or silver as the case may be. The accused No.1 i.e., Paresh shall pay the bank charges, service charges, tax, etc. and price of the gold, value of the gold must be paid in the form of Fixed Deposit Receipts or Cash certificates or cheque etc., in the name of PEC. After request of the buyer, the PEC Branch manager prepared delivery report, then Fixed Deposit Receipts for period of 3 months opened in the name of PEC by the accused no.1, after receipt of FDRs and purchase of gold is reported to the Punjab National Bank, 50 C.C.No.16328/2008 New Delhi, (in short hereinafter called as PNB) opened LC. The PNB paid the gold amount in doller to the foreigners, then gold imported. It shall deposited in PEC designated vault till full payment of the gold including all charges, after payment of the amount gold delivered to the buyer by concerned Branch Manager of the PEC.
34. This being the procedure to import the gold through PEC. This procedural aspect is admitted fact by the accused persons. Accordingly, the accused No.1 had issued request letter to PEC, New Delhi on 28.10.2004 to establish Letter of Credit for import of 200 kg gold as per Ex.P-119. In respect of import of 200kg gold the accused No.1 paid Rs.40,000/- as bank and other charges. On the basis of the same and on the request of PEC the Punjab National Bank opened letter of credit bearing No.9363. Thereafter on 08.11.2004 200 kg gold was imported in vault at IDBI Bank locker Bengaluru under the control of PEC. Thereafter, the accused No.1 for purpose of import of 200 kg gold paid an amount of Rs.8,10,00,000/- by way of fixed deposit at 51 C.C.No.16328/2008 Federal Bank in the name of PEC in different dates. The details is as under:
Exhibits Receipt FD Effective Repayable Deposit Maturity No. No. Date Date Amount Amount Ex.P-2 098900 11581 16.11.2004 15.02.2005 1,00,00,000/- 1,01,24,658/- Ex.P-3 098942 11622 23.11.2004 22.02.2005 10,00,000/- 10,12,465/- Ex.P-4 098907 11592 17.11.2004 16.02.2005 2,00,00,000/- 2,02,49,315/- Ex.P-5 098951 11636 24.11.2004 23.02.2005 50,00,000/- 50,62,329/- Ex.P-6 098918 11598 19.11.2004 18.02.2005 30,00,000/- 30,37,397/- Ex.P-7 098868 11545 08.11.2004 07.02.2005 2,00,00,000/- 2,02,49,315/- Ex.P-8 098906 11591 17.11.2004 16.02.2005 2,00,00,000/- 2,02.49.315/- Ex.P-9 098885 11557 10.11.2004 09.02.2005 20,00,000/- 20,24,932/- Ex.P-62 099011 11714 13.12.2004 14.03.2005 2,00,00,000/- 2,02,74,247/-
Total 10,10,00,000/- 10,22,83,973/-
35. The said fixed receipts are marked as Ex.P-2 to 9 and 62. After payment of amount through fixed deposit receipts the accused No.1 had taken the gold in total 200 kg as explained in Ex.P-84 which is register of gold stock. The said fixed deposit receipts along with lean had been send to the PEC, New Delhi. The PEC send the same to Punjab National Bank. The confirmation letter are marked as Ex.P-
53, 54 to 59. Ex.P-54 to 59 are issued by accused No.4 and 52 C.C.No.16328/2008 5 to the PEC. These documents are not disputed. As per Ex.P-25 on 28.01.2005 the General Manger PEC issued letter to the Chief Manager Punjab National Bank, New Delhi for return of fixed deposit receipt for arrange of funds from respective fixed deposit receipt for purpose of remittance due dates for purpose of due payment on LC bearing No.9363. On same day the Punjab National Bank returned 8 fixed deposit receipts to PEC New Delhi. The said fixed deposit receipts returned to the PEC Branch office, Bengaluru for encashment after maturity. Thereafter, the accused No.2 and 3 sent the said fixed deposit receipts to Federal bank for encashment on 31.01.2005 before date of maturity. The accused No.4 and 5 who were the Assistant General Manager and Senior Manager of Federal Bank, Residency Road Branch, Bengaluru on the same day closed the fixed deposit receipts before date of maturity. Due to closed the fixed deposit receipts before date of maturity PEC loss of Rs.12,83,973/-. And out of an amount of Rs.8,17,58,000/- the accused No.2 to 5 opened the 3 fresh fixed deposit receipt for Rs.5 Crore as per Ex.P-64, 65, 66 bearing No.099132, 53 C.C.No.16328/2008 099133, 099135 on the same day of Rs.2 Crore each and Rs.1 Crore respectively in the name of PEC as if the accused No.1 had opened the fixed deposit receipts. Because on 07.01.2005 the accused No.1 had sent an indent to the PEC to import of 150 kg gold as per Ex.P-120. Accordingly, on the request of accused No.1, PEC New Delhi opened LC No.9014 at Punjab National Bank New Delhi. To pay the said amount of Rs.5 Crore through fixed deposit receipt the accused No.2 to 5 colluding with accused No.1 opened the said two fixed deposit receipt. The said entire 8 fixed deposit amount of Rs.8,17,58,000/- was belongs to the PEC and the accused No.2 to 5 bound to deposit the said amount to the account of PEC, but they have diverted the amount by creating fixed deposit receipts of Rs.5 Crore and credited only Rs.3,17,08,000/- to the PEC account. On the basis of said 3 fixed deposit receipt i.e., Ex.P-64, 65, 66 the accused No.1 received 150 kg gold in LC No.9014 from PEC vault at IDBI Bank, really without remitted the gold value to the PEC. During the argument the learned advocate for accused No.4 and 5 argued that out of 8 fixed deposit receipt out if total 54 C.C.No.16328/2008 amount of Rs.8,17,58,287/- an amount of Rs.3,17,00,287/- paid to PEC Ltd., through demand draft on the same day, it is not disputed. The accused have also admitted that they made 3 fresh fixed deposit receipt as per Ex.P-64, 65 and 66 on the same day. But they had taken defence that at that time neither the branch officials PEC nor any officials of the head office made any produced or complaint in writing or raised any objections with regard to the manner of payment of 8 fixed deposit receipt and issuance of 3 fixed deposit receipts and same is confirmed by PW-3. Hence, there is no nothing wrong. Learned advocate for accused No.2 argued that the accused No.2 and 3 on the basis of permission of higher authority only they closed the fixed deposit receipt prematured and renewed the 3 fixed deposit receipts. The arguments clearly reveals that the act of the accused No.2 and 3 that they sent 8 fixed deposit receipts to the Federal Bank to close the premature is not disputed. Accordingly, the accused No.2 to 5 credited the amount of Rs.3,17,58,287/- through demand draft to PEC out of Rs.8.17.58.287/- is also admitted fact and the accused No.2 55 C.C.No.16328/2008 to 5 made 3 fresh fixed deposit receipts of Rs.2 Crore and Rs.1 Crore respectively as per Ex.P-64, 65 and 66 is also admitted. The accused No.4 admitted the said fact by way of letters as per Ex.P-17 and 18 and justified the said fact in Ex.P-21 letter.
36. Learned advocate for accused No.2 argued that Ex.P-48 to 53, Ex.P-96 to 116 are release orders but prosecution has not produced the original release orders. The signature appeared on the said documents is not belongs to the accused No.2. On perusal of the said documents the said documents are in respect of release of gold as per LC No.9363 and LC No.9014. The act of released the gold by accused No.1 from the vault of PEC at IDBI Bank is not disputed but the accused No.2 contended that he has not issued the release order. There is no explanation by the accused who issued the release order in fact IDBI Bank vault released the gold only on the basis of order issued by PEC Limited Branch office Bengaluru. The accused No.2 and 3 were only the responsible to answer who issued the release 56 C.C.No.16328/2008 order. The advocate for accused No.3 to 5 argued that who was the authorized person and whose authority who received the gold as alleged is not forth coming and was not investigated by the investigating officer but as per the documents i.e., Ex.P-84 and fixed deposit receipts it clearly reveals that the accused No.1 received the gold. If the accused No.2 as per the permission of higher authorities only closed the 8 fixed deposit receipt prematurely and opened 3 new fixed deposit receipts, he would have produced the documents, but those documents have not been forth coming by the accused No.2. The above act of the accused No.2 to 5 clearly goes to show that the accused no.2 and 3 without any permission of the higher authority prematurely closed the above 8 fixed deposit receipts and raised 3 fresh fixed deposit receipts as per Ex.P-64 to 66 without any permission as if the accused No.1 made the fixed deposit receipt in respect of LC No.9014 for purchase 150 kg gold. As thereby the accused No.2 and 3 being the Government Servants i.e., employees of PEC company misappropriated the fund and raised new fixed deposit receipts by closing the 57 C.C.No.16328/2008 fixed deposit receipts premature. The accused No.4 and 5 being the bankers closed the fixed deposit receipts prematurely and opened 3 new fixed deposit receipts colluding with accused No.1 to 3.
37. Further, that the accused No.2 to 5 have closed the fixed deposit receipts bearing No.099011 Ex.P62 and 099012 Ex.61 dated 13.12.2004 of Rs.2 Crore each which were to matured on 14.03.2005, but the accused closed the fixed deposit receipts on 05.01.2005 prematured and credited its interest amount to the account of accused No.1 without original fixed deposit receipts. The amount of interest Rs.23,15,877/- is credited to the account of accused no.1 on 05.01.2005 which is reflected in statement of his account Ex.P121. As on 05.01.2005 the said Ex.Pex61 and 62 were in the custody of PEC Limited New Delhi. Without original fixed deposit receipts of Ex.P-61 and 62 the accused No.2, 4 and 5 had closed the fixed deposit receipts. On careful perusal of the Ex.P-25 it clears that as on the date of 05.01.2005 the fixed deposit receipt bearing No.099011 was 58 C.C.No.16328/2008 in the possession of PEC Limited office New Delhi. It is relevant to note here that as per Ex.P-23 and 24 the fixed deposit receipts bearing No.099011 and 099012 of Rs.2 Crore each i.e., Ex.P-61 and 62 are in the custody of PEC Limited. On the letter of PEC Limited dated 28.01.2005 the Punjab National Bank released the fixed deposit receipts to PEC and confirmed the same in Ex.P-23 and 24. On careful perusal of the letters Ex.P-28 to 45 it clearly reveals that the accused No.2, 4 and 5 colluding each other without permission of the PEC Limited, Hansalaya, New Delhi closed the fixed deposit receipts before the maturity i.e., premature. The interest amount of fixed deposit receipts Ex.P-61 and 62 not credited to the PEC instead of that they have credited to the said amount to current account of accused No.1. As per the gold stock register the accused No.1 released the gold from 27.01.2005 to 31.01.2005.
38. Further, the accused No.2, 4 and 5 also closed the fixed deposit receipts bearing No.098868 Ex.P7 for Rs.2 Crore which opened on 08.11.2004 and matured on 07.02.2005 59 C.C.No.16328/2008 but the accused No.2, 4 and 5 closed the said fixed deposit receipt on 31.01.2005. The fixed deposit receipt had been opened on 08.11.2004 in respect of LC No.9345/2004. The accused No.4 in his letter Ex.P-17 explained and justified how the Ex.P-61 and 62 fixed deposit receipts were closed by accused No.2, 4 and 5. It is relevant to note here that as per the terms of fixed deposit receipts Ex.P-130 bearing Sl.No.8.4.1 and 8.4.2 it make clears that the depositor should surrendered duly discharged fixed deposit receipts for getting payment of the deposit amount and when the depositor demands cash payment the receipt must be presented duly discharged on revenue stamp of appropriate value. The receipts will be treated as cash voucher and passed through scroll cash book this is applicable only within the monetary sealing fixed for cash payment of term deposit. But in the present case on hand the accused No.2 without permission of the higher authority and without original receipts of Ex.P-61 and 62 issued letter for closing of fixed deposit receipts premature. The accused No.4 and 5 closed the above fixed deposit receipts without original fixed deposit receipts and 60 C.C.No.16328/2008 remitted the said interest amount to the accused No.1 instead of PEC account.
39. The prosecution has also filed original suit against the accused persons for recovery of money in OS No.956/2008. Wherein the accused No.4 was examined as DW-1. The prosecution has also produced deposition of DW- 1 which is marked as Ex.P-148. On careful perusal of the evidence of DW-1 he admitted that original fixed deposit receipt bearing No.099011 and 099012 wherein transit and on the basis of the said assurance on 05.01.2005 he released the proceeds on 2 fixed deposit receipts to the current account of accused No.1. He further admitted that the PEC had not issued letter to the Federal Bank requesting to open fresh fixed deposit receipts as per Ex.P-64 to 66 by closing 8 fixed deposit receipts Ex.P2 to 9 and P62. It clears that the accused persons without permission of the PEC closed the fixed deposit receipts premature and remitted the some amount to the accused No.1 and without permission open fresh fixed deposit receipts as per Ex.P64 to 66. 61
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40. The accused after opening of fresh fixed deposit receipts as per Ex.P64, 65 and 66 by closing 8 fixed deposit receipts. The accused No.2 applied for AAD loan on fixed deposit receipts as per Ex.P-46 and P63. The accused No.3 applied AAD loan on cash certificates as per Ex.P-67, 68 and 69 before the Federal Bank, as per Ex.P-47. On the basis of application Ex.P-46, P47 and P63 applied by accused No.2 and 3 the Federal Bank Ltd., sanctioned the loan. The accused No.2 and 3 have not taken permission to raised AAD loan on the fixed deposit receipt and cash certificates. The accused No.3 has no authorized person to applied for loan. But also they raised loan and accused No.4 and 5 sanctioned loan. Actually the accused no.4 and 5 have no authority to sanctioned the loan of Rs.4.5 crore, the AGM is only authority to sanctioned the loan. And even to whom amount has been paid not mentioned. In the cross examination of PW-3 the learned advocate for accused No.4 specifically suggested that due to oversight the accused No.4 signed on the application and the page in the place of applicant instead of signed as sanction authority. This suggestion clearly goes 62 C.C.No.16328/2008 to show that the accused No.2 and 3 applied loan and accused No.4 sanctioned the loan. The accused No.2 and 3 have denied the signature on the loan applications. The investigating officer has obtained the admitted signatures of accused No.2 and 3 and submitted original applications i.e., Ex.P-46, 47, 63 and sent to Forensic Science Lab, Bengaluru for opinion of expert's along with admitted signatures as per Ex.P-142, 149, 132. The expert's after examination issued certificate as per Ex.P-146 wherein clearly stated that the both disputed and admitted signatures belongs to one persons. As per Ex.P146 the disputed signatures of accused no.2 matched with his admitted signatures. Accordingly the disputed signatures of accused no.3 also matched with his admitted signatures. Accordingly the disputed signatures of accused no.4 also tallied with his admitted signatures. It clears that the accused No.2 and 3 without any authority to raised the loan applied and obtained loan on fixed deposit receipts and cash certificates.
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41. The learned advocate for accused No.2 during the arguments vehemently argued that the accused No.2 never signed on any documents produced before this Court. He denied the signature of accused no.2 on Ex.C1 and Ex.C2 discharge letters. On the contrary the learned advocate for accused no.4 and 5 argued that the accused no.2 being the authorized person of PEC was having authority to signed on discharge letters and sent to the Federal Bank for discharge of FDR no.11932 (Ex.P64), FDR No.099012 (Ex.P61) and FDR no.099011 (Ex.P62), accordingly on the basis of Ex.C1 and Ex.C2 the accused no.4 and 5 closed the said those FDR's. Earlier also, admittedly Sri, S.M.Dongarwar accused no.2 had returned similarly FDR on the basis of discharge letters which are marked as Ex.D6, as such Bank and its concerned officials i.e. accused no.4 ans 5 followed what had been an established/precedented procedure to close FDR's on the basis of discharge letters of the PEC then incumbent branch manager of Bengaluru. So, the Federal Bank has no reason to suspect the officials. It clearly reveals that the accused no.2 had sent the discharge letters to Bank for prematured 64 C.C.No.16328/2008 closer of the above FDR's and the accused no.4 and 5 had closed the those FDR's. But they have not explained how they closed the FDR's Ex.P61 and Ex.P62 without original receipts in their possession. They have also not explained why and on whose direction they diverted the amount to the account of accused no.1 as per Ex.P121. They have not explained why they closed 8 FDR's i.e., Ex.P2, P3, P4, P5, P6 P8, P9 and P62 and opened the fresh FDR's as Ex.P64, P65 and P66. They have not explained why they used the said FDR's Ex.P64, P65 and P66 to released the gold of 150kg by accused no.1 as if the said FDR's opened by accused no.1 for release of gold. They only justified that they did their duty in accordance with law as per request of accused no.2. The accused no.2 and 3 have also not explained why they raised the loan on Ex.P63 to Ex.P66.
42. In this regard the advocate for accused No.4 and 5 in his arguments admitted that on the request of PEC Limited, Bengaluru Branch and loan application filed by PEC Limited, Bengaluru Branch, the accused No.4 and 5 65 C.C.No.16328/2008 sanctioned the loan on Ex.P-63 to 66 in loan No.1503 of Rs.4,50,00,000/-. But the investigating officer collected only one sheet, originally the Ex.P-46 and 47 contains 4 sheets each. The same is produced as per Ex.D-4. The Ex.P-46 and 47 are incomplete documents. Hence he sought for not to rely on those documents. The Ex.P-46 and 47 are only evident for the accused No.2 and 3 applied for loan on fixed deposit receipts and cash certificates without permission of the PEC Main Branch, New Delhi. The accused No.4 and 5 admitted that they sanctioned the loan on fixed deposit receipts as well as cash certificates on the application of accused No.2 and 3 in AAD No.1503 and 1504 as per Ex.D-4.
43. Regarding the admissible of documents as per Ex.P48 to 53 and Ex.P96 to 116 is concerned the learned advocate for accused No.4 and 5 submits that those documents are also not secondary documents, those documents are xerox copies and they are not admissible in evidence, for genuineness of the documents is concerned and those documents cannot be considered as secondary 66 C.C.No.16328/2008 documents. In this regard they have relied on the decisions of
1. (2011) Part 4 Supreme Court Cases 240 in the case of H.Siddiqui (Dead) by Lrs. Vs A.Ramalingam in Civil Appeal No.6956 of 2004. wherein the Hon'ble Apex Court held that A. Evidence Act, 187
- Ss. 65, 66, 67, 73, 58 and 22- Secondary evidence as to contents of document-
Photocopy of document as secondary evidence - when admissible - admission of document - What amounts to - Admitting signature in photocopy of document, held does not amount to admitting contents of document - Where original document are not produced at any time, nor any factual foundation laid for giving secondary evidence, it is impermissible to allow a party to adduce secondary evidence -
Secondary evidence must be authenticated by foundational evidence that alleged copy is in fact true copy of the original -
Further held, second evidence relating to contents of a document is inadmissible until non-production of original is 67 C.C.No.16328/2008 accounted for - In instant case, trial court inferred that there was a specific admission by respondent that he had executed power of attorney in favour of his brother, since he admitted his signature on photocopy of power of attorney-
Substainability - Held, admission of a document or its contents may be necessarily lead to drawing any inference unless contents thereof have some probative value - On facts respondent had merely admitted his signature on photocopy of power of attorney and did not admit contents thereof - hence, drawing interference by trial court without determining probative value of such admission, held, unwarranted - Practice and Procedure - Admission. (Paras 11 to 14 and 17).
B. Evidence Act, 1872 - Sc 61 to 65, 67 and 73 - Contents of document - Proof of
- Admission of document in evidence -
Effect - Held, mere admission of a document in evidence does not amount to its proof - Documentary evidence is required to be proved in accordance with 68 C.C.No.16328/2008 law - Admissibility of document or its contents may not necessarily lead to drawing any inference unless contents thereof have some probative value, (Paras 11 to 14 and 17).
C. Evidence Act, 1872 - S. 65 -
Admissibility of document in secondary evidence - Duty of court - Held, court is obliged to examine probative value of documents produced in the court or their contents and decide question of admissibility of a document in secondary evidence (Para 12 and 17).
44. In the above decision Hon'ble Apex Court held that original documents are not produced at any time nor any actual foundation laid for giving secondary evidence hence it is impermissible to accept the secondary evidence. Ex.P48 to 53 and Ex.P96 to 116 are discharge letters those documents are not concerned to the Federal Bank or accused No.4 and
5. Those documents are against only accused No.1 and 2. Those documents alleged to have issued by accused No.2 for release the gold, on the basis of release orders the accused 69 C.C.No.16328/2008 No.1 released the gold as stated in the gold stock register Ex.P-84. Therefore, the documents are not against the accused No.4 and 5. Therefore, the accused No.4 and 5 have not locus standi to raised objections on those documents. In this regard he has also relied on decision of (2007) 5 Supreme Court Cases 730 in the case of J.Yashoda Vs. K.Shobha Rani in Civil Appeal No.2060 of 2007. And AIR 1966 Supreme Court 1457 Supreme Court in the case of The Roman Catholic Mission Vs. The State of Madras and Another in C.A.No.389 of 1964 and in the case of The State of Madras and Another Vs. The Roman Catholic Mission and Others in C.A.No.69 of 1965. And (2010) 4 Supreme Court Cases 491 in the case of Life Insurance Corporation of India and Another Vs Ram Pal Singh Bisen in Civil Appeal No.893 of 2007. And AIR 2000 Supreme Court 1759 in the case of State of Rajasthan and Others Vs Khemraj and Others in Civil Appeal No.106 70 C.C.No.16328/2008 of 2000 (arising out of S.L.P. © No.12050 of 1999).
45. Though the said Ex.P-48 to 53 and Ex.P-96 to 116 are true copies they are alleged to have created by the accused No.2. Those documents are having signature of accused No.2. Even though the accused No.2 denied the signatures but admitted that as per the said discharge orders on the said respective dates gold had been released to the accused No.1 as per Ex.P-84. Therefore, the accused No.2 is only competent person to explain if he has not issued Ex.P- 48 to 53 and Ex.P96 to 116 how gold had been released to accused No.1 as per gold stock register as per Ex.P-84. In the absence of explanation the court drawn the adverse inference against the accused No.2 as the above discharge letters were created by the accused No.2 to help the accused No.1 to released the gold.
46. It is relevant to note here that when the accused No.2 created the said documents the original cannot be available to the investigating officer, those documents had 71 C.C.No.16328/2008 been collected by investigating officer from the office of PEC Limited, those documents are office copies. At the time of issuance of those documents the accused No.2 was only Manager of the PEC Limited. Hence, he is only proper person to explain. In this regard the accused No.2 not explained. The accused No.4 and 5 have not locus standy to deny the above documents. Hence above decisions are not helpful to the accused No.4 and 5.
47. In order to establish an offence punishable under section 409 of IPC, the prosecution has to established the ingredients of section 405 of IPC. As such the accused must be public servant, banker or agent or attorney and there must be entrustment of the property and there must be misappropriation of the property entrusted. In the present case on hand the accused No.2 and 3 admittedly employee of PEC Limited, accordingly they were public servants and entrusted with managing the company in accordance with law. But the accused No.2 without permission of the higher authorities closed fixed deposit receipts prematurely and 72 C.C.No.16328/2008 opened 3 fresh fixed deposit receipts and helped to used the said fixed deposit receipts for release of 150 kg gold by accused No.1. They have also illegally and without permission of the higher authority raised the loan on the fixed deposit receipts as already discussed above thereby committed an offences punishable under section 409 of IPC.
48. The learned advocate for accused No.4 and 5 argued that the accused No.4 and 5 being the Senior Manager and Additional Manger as per request of PEC Branch, Bengaluru i.e., accused No.2 closed the fixed deposit receipts and made two new fixed deposit receipts in the name of PEC only. Hence there is no role of accused No.4 and 5 and no wrongful act by the accused No.4 and 5. It is relevant to note here that the accused no.4 and 5 were entrusted to FDR's of PEC. They have to deposit the FDR's amount after closer of the FDR's to PEC only, but without request of PEC main Branch, they closed the FDR's and diverted the amount to accused no.1. They opened new FDR's to help accused no.1 without permission of the PEC.
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49. In order to establish section 418 of IPC the prosecution has to established the accused persons with knowledge that wrongful loss may ensue to person whose interest accused is bound to protect but the accused caused wrongful loss. In the present case on hand the accused No.2 and 3 being the officials of PEC Limited and accused No.4 and 5 were being the Manager and Additional manager of Federal bank Limited, Residence Road Branch, Bengaluru even they were having knowledge that the funds i.e., fixed deposit receipts were belongs to the PEC and PEC was the owner of the fixed deposit receipts, they have colluding each other 8 fixed deposit receipts closed matured and without permission created 3 fixed deposit receipts and help to the accused No.1 to release the gold. They have also closed the 2 fixed deposit receipts before maturity and diverted the amount to the accused No.1 and caused loss to the PEC company thereby committed an offence punishable under section 418 of IPC. The accused No.4 and 5 without original two fixed deposit receipts as per Ex.P-61 and 62 closed before maturity on 05.01.2005, even knowingly they diverted the 74 C.C.No.16328/2008 amount of interest to the accused No.1 same is reflected in Ex.P-21 which is statement of account of accused No.1. Hence, the accused No.4 and 5 have also committed an offence punishable under section 418 of IPC.
50. In order to establish section 420 of IPC the prosecution has to established ingredients of section 415 of IPC i.e., I) deception of any person, ii) fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property, iii) intentionally inducing any person so deceived to do or omit to do anything which he would not to do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. In the present case on hand the accused No.3 without permission of Main Branch PEC New Delhi applied loan as per Ex.P-46 and 63 on fixed deposit receipts No.11932, 11933 and 11934 for Rs.4,50,00,000/- and the accused No.4 and 5 being the employees of Federal bank without any authority to sanction 75 C.C.No.16328/2008 the loan, sanctioned the loan of Rs.4,50,00,000/- and not credited the said amount to the PEC. The accused No.3 being the employee of PEC who had not authorized to apply the loan but applied loan on 3 cash certificates as per Ex.P- 67, 68 and 69 and sanctioned loan by accused No.4 and 5 and not credited the said amount to the PEC account and they have not disclosed to whose account they have credited the said amount. Thereby the accused have committed the above offences.
51. In order to prove under section 468 of IPC the prosecution has to established the intention creation of false documents or part their of with the intention to damage or injury another person or the public. The primary element necessary to establish criminal liability for the crime of forging is creation a fake documents or electronic record.
52. In this regard the learned advocate for accused No.4 and 5 relied on decision of Satish Mehra Vs State of N.C.T of Delhi and Others reported in AIR 2013 Supreme 76 C.C.No.16328/2008 Court 5066, in the said decision the Hon'ble Apex Court held that;
Criminal P.C. (2 OF 1974) Ss. 200, 482, -
Quashing of criminal proceedings-
complainant and accused-wife were renewed in sole name of accused wife by forgery inter alia against - Charges framed inter alia against appellants either in FIR or charge sheet material collected during investigation also not disclosing any positive role of appellants in matter - Mere fact that appellants are senior managers in bank cannot be ground to hold that they are, even prima facie, liable to alleged wrongful acts - Criminal proceedings against appellant liable to quashed (Para 19) (D) Criminal P.C. (2 of 1974) Ss. 200, 482, quashing of charge - property - fixed deposits (FDs) in joint name of father-in-law of complainant alleged to have fraudulently renewed FDs in sole name of his daughter - material collected in investigation indicating that FDs were renewed by using old investment renewal form signed by 77 C.C.No.16328/2008 complainant and his wife - on which accused made endorsement that FDs be renewed in sole name of daughter - Act of accused of making endorsement prima facie amounts to forgery - charge framed against accused under section 467, 468, 471, R/w section 120 B, IPC - Not liable to be quashed (Paras 21, 22)
53. In the present case on hand the accused No.1 to 5 colluding each other with an intention to help the accused No.1 the accused No.2 created false discharge applications as per Ex.C-1 and 2 and sent to the accused No.4 and 5, on the basis of Ex.C-1 and 2 the accused No.4 and 5 closed the fixed deposit receipts No.099011 and 099012 for Rs.2 Crore each and credit the amount to the accused No.1 account without collecting original fixed deposit receipts. The said act has been admitted by the accused No.4 and 5 as already discussed above.
54. In this regard the advocate for accused No.4 and 5 relied on decisions of L.Muniswamy reported in AIR 2013 Supreme Court 506. Wherein the Hon'ble Apex Court 78 C.C.No.16328/2008 observed in a criminal trial the Court has to looked into definite allegations, prima facie, establishing the commission of offences by the accused which fact have to be proved by leading unimpeachable and acceptable evidence in the course of the trial against the accused. In the said case one Anita Mehra and Satish Mehra were made fixed deposits after the maturity the accused renewed the two fixed deposit receipts in the sole name of Anita Mehra only. Therefore another joint owner of fixed deposit receipts challenged the same. But there was no role in the Bank Manager it was individual. Hence the Court acquit the accused persons. The facts and circumstances of the above case and present case are different. In the present case the accused persons i.e., accused No.4 and 5 being the bankers without fixed deposit receipts on the basis of request of accused No.2 and 3 closed the fixed deposit receipts and diverted the amount to accused No.1 instead of PEC/ Therefore, the said decision is not applicable to the case on hand.
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55. They also relied on AIR 1968 Supreme Court 1115 (V 55 C 220) (From AIR 1961 Punj 66) in the case of United Commercial Bank Ltd., Vs Okara Grain Buyers Syndicate Ltd., and Another in Civil Appeal No.449 of 1965. wherein the Hon'ble Court observed that ;
Banker and customer -Security
deposit- Amount deposited for due
performance of contract with Government - Liability of Banker to depositor - In the absence of any contractual relationship with the officer of Government with whom deposit was meant to be kept as security, Banker liable to pay the depositor - Contract Act (1872) Sections 10, 125, 128, 145 - Trusts Act (1882) Sections 81, 94.
56. In the above decision Hon'ble Court explained the duty of the banker and customer and liability of banker to deposit. On careful perusal of the facts and circumstances of the said case and the present case are very different. In present case the accused No.4 and 5 colluding with accused No.1 to 3 without having original fixed deposit receipts closed 80 C.C.No.16328/2008 the fixed deposit receipts prematurely on the basis of Ex.C-1 and 2 forged documents. Hence the above decisions are not applicable to the case on hand.
57. In order to establish an offence punishable under section 471 of IPC. The prosecution has to established the accused fraudulently or dishonestly used forged documents as genuine or which he knows as it is forged or as reason to be believe to be a forged document or electronic record but used it as a genuine document or electronic record. In the present case as already discussed above the accused No.2 colluded with accused No.1 issued discharge letters to the accused No.4 and 5 and the accused No.4 and 5 on the basis on discharge letters closed the fixed deposit receipts and diverted the amount to the accused No.1 instead of PEC.
58. In order to prove the section 120B of IPC the prosecution has to established an agreement between two or more persons either in writing or oral, intention to commit an illegal act or legal act by illegally means, existence of plan or scheme to executing intending act. It is relevant to note here 81 C.C.No.16328/2008 that it is essential to prove that the individuals involved had a meeting intending to cooperate pursue common goal. They may involve single or multiple transaction but no line to commit an act must be clear and consistent. The secondary element of criminal conspiracy intention to commit a illegal act or a legal act by illegally means. In the present case on hand as already discussed above, the accused No.1 to 5 colluded each other, the accused No.2 without permission of the main branch on 05.01.2005 without having original fixed deposit receipts sent the discharge letter to close the fixed deposit receipts bearing No.099011 as per Ex.P-62, 099012 as per Ex.P-61 and the accused No.4 and 5 closed the said fixed deposit receipt and diverted the amount to the accused No.1's account. It was not happened without meeting of minds between the accused No.1 to 5. Further on 31.01.2005 without permission of the PEC Main Branch the accused No.2 sent the 8 fixed deposit receipts and the accused No.4 and 5 closed the said fixed deposit receipts and without permission opened the fresh fixed deposit receipts of Rs.2 Crore each and Rs.1 Crore as per Ex.P-64, 65 82 C.C.No.16328/2008 and 66. The accused No.2 permitted the accused No.1 to uses the said fresh fixed deposit receipts to release the gold as if the accused No.1 opened the fixed deposit receipts to release the gold. It clearly reveals that without meeting of mind between the accused persons it might not be closed and opened new fixed deposit receipts. On that act of accused the PEC was loss of Rs.5 Crore and interest. Further the accused No.2 and 3 applied for loan without permission of the Main Branch PEC New Delhi and the accused No.4 and 5 sanctioned the loan and they have not disclosed to whom the amount had been credited. The accused No.2 and 3 applied for loan of Rs.4,50,00,000/- each and the accused No.4 and 5 sanctioned the loan of Rs.4,50,00,000/- each as per Ex.P- 46, 47 and 63 and they have misappropriated the said amount. The said act not happened without meeting of the mind. It clears that before committed this illegal act the accused had made criminal conspiracy to commit the offences.
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59. On considering the entire prosecution witnesses and materials place by prosecution i.e., Exhibits, it appears that the accused No.1 to 5 colluding with each other entered into criminal conspiracy to do illegal act and to cheat and cause loss to the PEC committed the misappropriation by creating some documents as per Ex.C-1 and 2 and other documents and other discharge lettersEx.P44 to 53 and P96 to 106 and used the said documents as genuine and caused loss to the PEC. The testimony of PW-1 to 9 corroborated with the documents. The accused No.1 died during the pendency of this case. Hence, the accused No.1 abated in this case. The accused No.2 to 5 have not denied their acts but they simply taken defence that everything was did in accordance with law. The evidence of prosecution witnesses and documentary evidence is sufficient to believe the prosecution case. The prosecution has proved guilt of the accused persons beyond reasonable doubt. Therefore, this Court has answered Point No.1 to 7 in the affirmative.
60. Point No.8: In the result, I proceed to pass the following:
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C.C.No.16328/2008 ::ORDER::
In exercising the powers conferred under Section 248(2) of the Criminal Procedure Code the accused No.2 to 5 are found guilty for the offences punishable under section 409, 418, 420, 468, 471 and 120(B) of Indian Penal Code.
Hearing on sentence.
(Dictated to the stenographer, transcribed by him on computer, corrected, then signed and pronounced by me in the open court on this the 29 th Day of June, 2024).
(Shreyansh Doddamani) III Addl., Chief Metropolitan Magistrate., Bengaluru.
::ANNEXURE::
1. List of witnesses examined for the prosecution:
PW-1 : Sri.S.M.Mohapatra;
PW-2: Sri.Gurpal Singh;
PW-3: Sri.Y.P.Chhabra;
PW-4: Sri.Ravindra Chadha;85
C.C.No.16328/2008 PW-5: Sri.V.N.Sekara;
PW-6: Sri.Udaykumar Shetty;
PW-7: Sri.C.R.Ravishankar;
PW-8: Sri.Aman Jain;
PW-9: Smt.Dr.Kumuda Rani.
2. List of documents marked for the prosecution:
Ex.P-1: Copy of letter dated 28.01.2005 issued by PEC Ltd., to the Punjab National Bank; Ex.P-2 to 9: Fixed Deposit Receipts of M/s.PEC Ltd.,; Ex.P-10: Copy of Delegation of Powers; Ex.P-10(a): Signature;
Ex.P-11: Letter dated 06.09.2007 issued a letter to the SHO of Cubbon Park Police Station; Ex.P-11(a): Signature;
Ex.P-12: Copy of letter dated 24.04.1992; Ex.P-13: Letter dated 13.08.2007 issued by PEC Ltd.; Ex.P-13(a): Signature;
Ex.P-14: Letter dated 23.07.2007 issued a letter to the SHO of Cubbon Park Police Station; Ex.P-14(a): Signature;86
C.C.No.16328/2008 Ex.P-15: Letter dated 06.11.2006 issued by the Federal Bank Ltd., to the PEC Limited; Ex.P-15(a): Signature;
Ex.P-16: Letter dated 31.10.2006 issued by the Federal Bank Ltd., to the PEC Limited; Ex.P-17: Letter dated 15.11.2006 issued by the Federal Bank Ltd., to the PEC Limited; Ex.P-17(a): Signature;
Ex.P-18: Letter dated 19.12.2006 issued by the Federal Bank Ltd., to the PEC Limited; Ex.P-18(a): Signature;
Ex.P-19: Letter dated 29.12.2006 issued by the Federal Bank Ltd., to PEC Ltd;
Ex.P-20: Letter dated 02.01.2007 issued by the Federal Bank Ltd., to PEC Ltd;
Ex.P-20(a): Signature;
Ex.P-21: Letter dated 03.03.2007 issued by the Federal Bank Ltd., to PEC Ltd;
Ex.P-21(a): Signature;
Ex.P-22: Complaint against the Federal Bank Ltd., to the Reserve Bank of India dated 13.04.2007; 87
C.C.No.16328/2008 Ex.P-23: Release of FDRs details dated 13.01.2007;
issued by Punjab National Bank;
Ex.P-23(a): Signature;
Ex.P-24: Release of FDRs details dated 13.01.2007 issued by Punjab National Bank;
Ex.P-24(a): Signature;
Ex.P-25: FDs given against Gold L/cs dated 28.01.2005;
Ex.P-25(a): Signature;
Ex.P-26: Letter issued to the Federal Bank Ltd. Ex.P-26(a): Signature;
Ex.P-27: Letter issued to the Federal Bank Ltd; Ex.P-27(a): Signature;
Ex.P-28: Letter dated 23.04.2007 to Federal Bank Ltd., issued by PEC Ltd;
Ex.P-29: Letter dated 15.02.2007 to Federal Bank Ltd., issued by T.P.S.Narang, Director;
Ex.P-30: Letter dated 05.02.2007 issued by PEC Ltd., to the Federal Bank of India;.
Ex.P-30(a): Signature;
88
C.C.No.16328/2008 Ex.P-31: Letter dated 02.01.2007 to Federal Bank Ltd., issued by T.P.S.Narang, Director;
Ex.P-32: Letter dated 21.12.2006 to Federal Bank Ltd., issued by T.P.S.Narang, Director;
Ex.P-33: Letter dated 07.12.2006 to Federal Bank Ltd., issued by PEC Ltd.,;
Ex.P-33(a): Signature;
Ex.P-34: Letter dated 13.11.2006 to Federal Bank Ltd., issued by PEC Ltd.,;
Ex.P-34(a): Signature;
Ex.P-35: Letter dated 13.11.2006 to Federal Bank Ltd., issued by T.P.S.Narang, Director;
Ex.P-36: Letter dated 31.10.2006 to Federal Bank Ltd., issued by T.P.S.Narang, Director;
Ex.P-37: Letter dated 27.10.2006 to Federal Bank Ltd., issued by PEC Ltd;
Ex.P-37(a): Signature;
Ex.P-38: Letter dated 23.10.2006 to Federal Bank Ltd., issued by T.P.S.Narang, Director;
Ex.P-39: Letter dated 09.10.2006 to Federal Bank Ltd., issued by PEC Ltd.,' 89 C.C.No.16328/2008 Ex.P-40: Letter dated 16.10.2006 to Federal Bank Ltd., issued by PEC Ltd.,' Ex.P-41: Letter dated 16.10.2006 to Federal Bank Ltd., issued by PEC Ltd.,' Ex.P-42: Letter dated 09.10.2006 to Federal Bank Ltd., issued by PEC Ltd.,;
Ex.P-43: Letter dated 16.10.2006 to Federal Bank Ltd., issued by PEC Ltd.,;
Ex.P-44: Letter dated 09.10.2006 to Federal Bank Ltd., issued by PEC Ltd.,;
Ex.P-45: Inter Office Memo dated 23.0.2005; Ex.P-46: Loan application;
Ex.P-46(a): Signature;
Ex.P-47: Loan application;
Ex.P-47(a): Signature;
Ex.P-48: Copy of Release order dated 16.11.2004; Ex.P-48(a & b): Signature;
Ex.P-49: Copy of Release order dated 30.11.2004; Ex.P-49(a & b): Signature;
Ex.P-50: Copy of Release order dated 17.12.2004; Ex.P-50(a & b): Signature;
90
C.C.No.16328/2008 Ex.P-51: Copy of Release order dated 21.12.2004; Ex.P-51(a & b): Signature;
Ex.P-52: Copy of Release order dated 13.01.2005; Ex.P-52(a & b): Signature;
Ex.P-53: Copy of Release order dated 20.01.2005; Ex.P-53(a & b): Signature;
Ex.P-54: Letter dated 16.11.2004 to M/s.PEC Ltd issued by the Federal Bank Ltd.,;
Ex.P-54(a & b): Signature;
Ex.P-55: Letter dated 23.11.2004 to M/s.PEC Ltd issued by the Federal Bank Ltd.,;
Ex.P-55(a & b): Signature;
Ex.P-56: Letter dated 17.11.2004 to M/s.PEC Ltd issued by the Federal Bank Ltd.,;
Ex.P-56(a & b): Signature;
Ex.P-57: Letter dated 17.11.2004 to M/s.PEC Ltd issued by the Federal Bank Ltd.,;
Ex.P-57(a & b): Signature,;
Ex.P-58: Letter dated 24.11.2004 to M/s.PEC Ltd issued by the Federal Bank Ltd.,;
Ex.P-58(a & b): Signature;
91
C.C.No.16328/2008 Ex.P-59: Letter dated 10.11.2004 to M/s.PEC Ltd issued by the Federal Bank Ltd.,;
Ex.P-59(a & b): Signature;
Ex.P-60: Complaint dated 13.07.2007; Ex.P-60(a): Signature;
Ex.P-61 and 62: Fixed Deposit Receipts; Ex.P-63: Application for advance against approved securities;
Ex.P-63(a): Signature;
Ex.P-64 to 69: Fixed Deposit Receipts; Ex.P-64 to 66 (a & b): Signatures;
Ex.P-70: Certified copy of agreement dated 31.10.2003;
Ex.P-71: Certified copy of agreement dated 14.09.2004;
Ex.P-71(a): Signature;
Ex.P-72: Certified copy of agreement dated 15.03.2005;
Ex.P-72(a): Signature;
Ex.P-73: Certified copy of Memorandum of Understanding;
92
C.C.No.16328/2008 Ex.P-73(a): Signature;
Ex.P-74: Certified copy of Memorandum of Understanding;
Ex.P-75: Letter dated 27.12.2007 to Cubbon Park Police Station;
Ex.P-75(a): Signature;
Ex.P-76: Copy of Job Description of Chief Marketing Manager Chief Project Manager;
Ex.P-77: Copy of Release of Gold imported against LC letter dated 15.01.2004 issued by PEC Ltd.,; Ex.P-78: Copy of Invoice dated 07.10.2004; Ex.P-79: Letter dated 15.10.2004 to IDBI Bank issued by PEC Ltd.,;
Ex.P-80: Copy of FDRs maturity letter dated 16.04.2005 issued by PEC ltd., to the Canara Bank;
Ex.P-81: Copy of Indian Overseas Bank letter dated10.06;
Ex.P-82: Copy of outstanding against M/s Paresh Exports Pvt. Ltd dated 27.04.2007;
Ex.P-83: Copy of General Power of Attorney ; Ex.P-84: Copy of Register of PEC Ltd.,; 93
C.C.No.16328/2008 Ex.P-85: Certified copy of letter dated 07.09.2006 to PEC Limited issued by Paresh Exports Pvt. Ltd.,;
Ex.P-86: Certified copy of letter dated 19.02.2007 to PEC Limited issued by Paresh Exports Pvt. Ltd.,;
Ex.P-87: Certified copy of letter dated 12.02.2007 to PEC Limited issued by Paresh Exports Pvt. Ltd.,;
Ex.P-88: Certified copy of letter dated 09.11.004 to Shri S.M.Mohapatra issued by PEC Ltd.,; Ex.P-89: Certified copy of letter dated 10.11.004 to Shri S.M.Mohapatra issued by PEC Ltd.,; Ex.P-90: Certified copy of letter dated 17.11.004 to Shri S.M.Mohapatra issued by PEC Ltd.,; Ex.P-91: Certified copy of letter dated 17.11.004 to Shri S.M.Mohapatra issued by PEC Ltd.,; Ex.P-92: Certified copy of letter dated 24.11.200 to Shri S.M.Mohapatra issued by S.M.Dongarwar;
Ex.P-93: Certified copy of letter dated 15.11.200 to Shri S.M.Mohapatra issued by S.M.Dongarwar;
94
C.C.No.16328/2008 Ex.P-94: Certified copy of letter dated 15.12.2004 to Shri S.M.Mohapatra issued by PEC Limited; Ex.P-95: True copy of Inter Office Memo dated 20.11.2007;
Ex.P-96: True copy of letter dated 14.10.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-97: True copy of letter dated 16.10.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-98: True copy of letter dated 16.10.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-99: True copy of letter dated 04.11.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-100: True copy of letter dated 08.11.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-101: True copy of letter dated 13.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
95
C.C.No.16328/2008 Ex.P-102: True copy of letter dated 13.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-103: True copy of letter dated 16.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-104: True copy of letter dated 16.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-105: True copy of letter dated 17.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-106: True copy of letter dated 21.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-107: True copy of letter dated 29.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-108: True copy of letter dated 05.01.2005 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-109: True copy of letter dated 10.11.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
96
C.C.No.16328/2008 Ex.P-110: True copy of letter dated 16.11.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-111: True copy of letter dated 17.11.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-112: True copy of letter dated 03.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-113: True copy of letter dated 07.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-114: True copy of letter dated 09.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-115: True copy of letter dated 13.12.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-116: True copy of letter dated 25.01.2004 issued by PEC Limited to M/s.Paresh Exports Pvt. Ltd., Bengaluru;
Ex.P-117: True copy of Invoice dated 25.01.2005 issued by PEC Limited;
97
C.C.No.16328/2008 Ex.P-118: True copy of Invoice No.PEC/BUL/AGR/PE-
17/2004-05-018;
Ex.P-119: True copy of letter dated 28.10.2004 to Mr.Hitesh Jagata issued by PEC Exports Pvt. Ltd..;
Ex.P-120: True copy of letter dated 07.01.2005 issued by M/s.Paresh Exports Pvt. Ltd., to Mr.Hitesh Jagota and True copy of Final Commercial Invoice dated 28.01.2005 to PEC Limited issued by AGR Matthey;
Ex.P-121: Copy of Ledger account for the period from 01.01.2005 to 31.03.2005 of PEC (Projects); Ex.P-122: True copy of Ledger Account for the period from 01.04.2005 to 331.03.2006;
Ex.P-123: First Information Report No.0128/2007 of Cubbon Park Police Station;
Ex.P-124: PF No.91/2007 dated 17.07.2007; Ex.P-124(a): Signature of Police Inspector & SHO of Cubbon Park Police Station;
Ex.P-125: Letter dated 17.07.2007 to the Police Inspector, Cubbon Park Police Station by the Federal bank Ltd.,;
Ex.P-125(a and b): Signatures;
98
C.C.No.16328/2008 Ex.P-126: PF No.92/2007 dated 18.07.2007; Ex.P-126(a): Signature of Police Inspector & SHO of Cubbon Park Police Station;
Ex.P-127: Letter dated 18.07.2007 to the Police Inspector & SHO, Cubbon Park Police Station by the Federal Bank Ltd.,;
Ex.P-127(a and b): Signatures;
Ex.P-128: PF No.93/2007 dated 21.07.2007; Ex.P-128(a): Signature of Police Inspector & SHO of Cubbon Park Police Station;
Ex.P-129: Letter dated 21.07.2007 to the Police Inspector, Cubbon Park Police Station by the Federal Bank Ltd.,;
Ex.P-130: Fixed and Other Term Deposit details of the Federal Bank Ltd..;
Ex.P-131: PF No.96/2007 dated 24.07.2007; Ex.P-131(a): Signature of Police Inspector & SHO of Cubbon Park Police Station;
Ex.P-132: Specimen signatures of K.Rajendra; Ex.P-133: PF No.101/2007 dated 16.08.2007; Ex.P-134: Letter dated 16.08.2007 to the Cubbon Park Police Station by Federal Bank Ltd.,; 99
C.C.No.16328/2008 Ex.P-135: Federal Bank Statement of PEC Ltd., dated 01.01.2004 to 02.05.2005;
Ex.P-136: Federal Bank Statement of PEC Ltd., dated 02.05.2004 to 02.05.2005;
Ex.P-137: PF No.110/2007 dated 07.09.2007; Ex.P-138: PF No.117/2007 dated 11.10.2007; Ex.P-139: PF No.122/007 dated 19.10.2007; Ex.P-140: Letter dated 12.10.2007 to the Cubbon Park Police Station by PEC Ltd., ;
Ex.P-141: PF No.151/2007 dated 27.12.2007; Ex.P-142: Specimen signatures of P.M.John; Ex.P-143: Specimen signatures of M.M.Nambiyar; Ex.P-144: PF No.68/2008 dated 03.07.2008; Ex.P-145: Letter dated 03.07.2008 to the Cubbon Park Police Station by Federal Bank Ltd.,; Ex.P-146: Certificate of Handwriting Examination dated 29.07.2008 issued by Forensic Science Laboratory, Bangalore;
Ex.P-146(a to c): Signatures;
Ex.P-147: General Power of Attorney dated 24.01.2022 by PW-8;
100
C.C.No.16328/2008 Ex.P-148: Certified copy of OS No.956/2008; Ex.P-149: Specimen signature of S.M.Dongarvar; Ex.P-149(a,c, e,g,i,k): Specimen signatures of S.M.Dongarvar;
Ex.P-149(b): Signatures of Police Inspector of Cubbon Park Police Station;
Ex.P-149(b,d,f,h,j,l): Signatures of Police Inspector of Cubbon Park Police Station.
3. List of witnesses examined for the defence:
-Nil-
4. List of documents:
Ex.C-1: Letter to the Federal Bank issued by PEC Ltd.,; Ex.C-2: Letter to the Federal Bank issued by PEC Ltd.
5. List of documents marked for the defence:
Ex.D-1: Copy of application for advance against approved securities;
Ex.D-1(a) : Copy of received with thanks from PEC Ltd., Receipt No.098878;
Ex.D-1(b) : Copy of received with thanks from PEC Ltd., Receipt No.098867;101
C.C.No.16328/2008 Ex.D-2: Letter dated 28.01.2005 to Punjab National Bank;
Ex.D-2(a) : Signature;
Ex.D-3: True copy of order u/s 281N of the Income Tax Act, 1961;
Ex.D-4: Copy of application for advance against approved securities;
Ex.D-5: True Copy of Allottment of work to Chief Manager w.e.f.12.05.2003 of the Federal Bank Limited;
Ex.D-6: PEC Ltd., Letter dated 13.01.2005.
6. List of Material Objects on the side of the defence:
-Nil-
(Shreyansh Doddamani) III Addl., Chief Metropolitan Magistrate., Bengaluru.
102
C.C.No.16328/2008
ORDER ON SENTENCE PRONOUNCED
IN THE OPEN COURT
Heard the learned Special Public
Prosecutor and advocate for accused persons and accused persons on quantum of sentence.
The learned Special Public Prosecutor has submitted that the accused persons committed the offence punishable U/s. 409, 418, 420, 468, 471, 120(B) of IPC. The above offence are economic offences and against the Government of India and public. The offence committed by the accused persons are serious in nature and it is having huge impact on the society. After registering of this case they have delay tracticed. Moreover no leniency should be shown to the accused persons, as the accused persons having full knowledge regarding the consequences of the acts, have committed the same. Therefore, he prayed to the Hon'ble Court to impose maximum punishment with rigorous imprisonment. On the other hand the counsel of accused persons and accused persons have argued that, their family is depending on them. They 103 C.C.No.16328/2008 are already retired from service. They are senior citizens. The accused are responsible persons and come from reputed families in the society. Therefore, they prayed to extend lenient view and punished with fine amount only.
This Court has come to the conclusion that the accused persons have committed an offence punishable under section 409, 418, 420, 468, 471, 120(B) of IPC. The above offencees are against the society and are serious in nature. The accused persons misappropriated the funds of Government and caused loss to the Government. The accused persons with intention to cheat even knowing the consequences committed an offences. Therefore, the benefit of P.O. Act can not be extended to the accused persons. If released the accused persons on P.O. Act, the wrong message will go to the society.
Therefore, after considering the mitigating and aggravating factors, this court is of the opinion that the accused shall get appropriate punishment in view of the nature of the offences and it's impact on the society. 104
C.C.No.16328/2008 Though accused persons were held guilt, if they be awarded with lesser punishment, then the wrong massage will go to society and there will not be any respect to the law and faith on the system. Hence, this court proceed to pass the following:
ORDER Accused No.2 to 5 are sentenced to undergo Rigorous imprisonment for four years and fine amount of Rs.10,000/- each for the offence punishable under section 409 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for 3 months.
Accused No.2 to 5 are sentenced to undergo Rigorous imprisonment for three years and fine amount of Rs.5,000/- each for the offence punishable under section 420 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for 2 months.
Accused No.2 to 5 are sentenced to undergo Rigorous imprisonment for one year and fine amount of Rs.2,000/- each for the 105 C.C.No.16328/2008 offence punishable under section 418 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for 1 month.
Accused No.2 to 5 are sentenced to undergo Rigorous imprisonment for two years and fine amount of Rs.5,000/- each for the offence punishable under section 468 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for 2 months.
Accused No.2 to 5 are sentenced to undergo Rigorous imprisonment for six
months and fine amount of Rs.2,000/- each for the offence punishable under section 471 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for 1 month.
Accused No.2 to 5 are sentenced to undergo Rigorous imprisonment for three months and fine amount of Rs.2,000/- each for the offence punishable under section 120(B) of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for 1 month.106
C.C.No.16328/2008 The above sentences are run concurrently.
The bail bond and personal bond of accused persons stands canceled.
Office is directed to Supply copy of Judgment to the accused persons with free of cost.
If the accused were in judicial custody during the investigation and trial the period shall be set off in the main sentence.
(Dictated to the stenographer directly on computer, corrected, then signed and pronounced by me in the open court on this the 29th Day of June, 2024).
(Shreyansh Doddamani) III Addl., Chief Metropolitan Magistrate., Bengaluru.