Madras High Court
Barath Rai (A3) vs Deputy Superintendent Of Police on 11 March, 2011
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 11.03.2011 C O R A M The Honourable Mr.Justice P.R.SHIVAKUMAR Criminal Appeal Nos.511 and 550 of 1999 Crl.A.No.511 of 1999 Barath Rai (A3) ... Appellant Vs. Deputy Superintendent of Police C.B.I. Chennai (Rc.No.10/S/90) ... Respondent PRAYER: Criminal Appeal filed under Section 374 of the Criminal Procedure Code against the sentence and judgment passed by the learned First Additional Sessions Judge and Chief Judicial Magistrate, Coimbatore in C.C.No.32/1992 dated 28.06.1999 and set aside the same.
For Appellant : Mr.D.Krishnan For Respondent : Mr.N.Chandrasekaran Spl P.P. for CBI Cases Crl.A.No.550 of 1999
1.T.Ramaswamy (A1)
2.K.Venkataswamy (A2)
3.M/s.Aliyar Paper Mills P. Ltd., through its Managing Director Ramaswamy, the first accused ... Appellants Vs. State represented by Deputy Superintendent of Police C.B.I., Madras (Rc.No.10/S/90) ... Respondent PRAYER: Criminal Appeal filed under Section 374 of the Criminal Procedure Code against the sentence and judgment passed by the learned First Additional Sessions Judge and Chief Judicial Magistrate, Coimbatore in C.C.No.32/1992 dated 28.06.1999 and set aside the same.
For Appellants : Mr.D.Krishnan For Respondent : Mr.N.Chandrasekaran Spl P.P. for CBI Cases These two criminal appeals have arisen out of the judgment of the trial court, namely the court of the First Additional Sessions Judge-cum-Chief Judicial Magistrate, Coimbatore dated 28.06.1999, made in C.C.No.32/1990, convicting the appellants in both the appeals for the offences with which they stood charged before the trial court. Therefore, both the appeals were taken up for joint hearing and are now being disposed of by this common judgment.
2. T.Ramaswamy, K.Venkataswamy and M/s.Aliyar Paper Mills Private Limited, who were A1, A2 and A4 in C.C.No.32/1990 on the file of the First Additional Sessions Judge-cum-Chief Judicial Magistrate, Coimbatore, are the appellants in Crl.A.No.550/1999. Bharat Rai, who figured as A3 in the above said C.C.No.32/1990 is the sole appellant in Crl.A.No.511/1999.
3. There were totally five charges framed against the accused persons. The first, third and fifth charges were framed against all the appellants (A1 to A4), whereas the second and fourth charges were framed against appellants 1 and 2 in Crl.A.No.550/1999 (A1 and A2). The details of the charge are as follows:-
a) Charge No.1:- All the appellants (A1 to A4) committed an offence of criminal conspiracy with the object of cheating punishable under Section 120-B IPC r/w 420 IPC.
b) Charge No.2:- Appellants 1 and 2 in Crl.A.No.550/1999 (A1 and A2) committed an offence punishable under Section 420 IPC by cheating the Indian Bank, Pollachi Branch to the tune of Rs.4,27,946/- by preparing bogus consignment bills and discounting the same with the said bank.
c) Charge No.3:- Appellants 1 to 3 in Crl.A.No.550/1999 (A1, A2 and A4) and the appellant in Crl.A.No.511/1999 (A3) committed an offence of criminal conspiracy to forge documents for the purpose of cheating the Indian Bank, Pollachi Branch to the tune of Rs.4,27,946/- punishable under Sections 120-B r/w 468 IPC.
d) Charge No.4:- Appellants 1 and 2 in Crl.A.No.550/1999 (A1 and A2) committed the offence of forgery for cheating punishable under Section 468 IPC by forging and fabricating invoices, delivery challans and consignment note and bills in respect of 13 consignments for the purpose of discounting the same with the Indian Bank, Pollachi branch.
e) Charge No.5:- Appellants 1 to 3 in Crl.A.No.550/1999 (A1, A2 and A4) and the sole appellant in Crl.A.No.511/1999 (A3) committed an offence of using forged documents as genuine for the purpose of cheating punishable under Section 471 IPC r/w 468 IPC.
4. All the appellants (A1 to A4) pleaded not guilty and hence a trial was conducted. At the conclusion of trial, the learned First Additional Sessions Judge cum Chief Judicial Magistrate, found all the appellants herein (A1 to A4) guilty of the offences as per the charges stated supra, convicted them and punished them with the following punishments.
Name of the Offences for which Sentence imposed Accused convicted T.Ramaswamy (A1) 120-B r/w 420 IPC Rigorous imprisonment and (charge No.1) for 1 year and a fine of K.Venkataswamy (A2) Rs.500/- with a default sentence of simple imprisonment for three months, in case of failure to pay fine 420 IPC Rigorous imprisonment (charge No.2) for 5 years and a fine of Rs.1,000/- with a default sentence of simple imprisonment for three months, in case of failure to pay fine 120-B r/w 468 IPC Rigorous imprisonment (charge No.3) for 1 year and a fine of Rs.500/- with a default sentence of simple imprisonment for three months, in case of failure to pay fine 468 IPC Rigorous imprisonment (charge No.4) for 5 years and a fine of Rs.1,000/- with a default sentence of simple imprisonment for three months, in case of failure to pay fine 471 r/w 468 IPC Rigorous imprisonment (charge No.5) for 5 years and a fine of Rs.1,000/- with a default sentence of simple imprisonment for two months, in case of failure to pay fine Bharath Rai (A3) 120-B r/w 420 IPC Rigorous imprisonment (charge No.1) for 1 year and a fine of Rs.500/- with a default sentence of simple imprisonment for three months, in case of failure to pay fine 120-B r/w 468 IPC Rigorous imprisonment (charge No.3) for 1 year and a fine of Rs.500/- with a default sentence of simple imprisonment for three months, in case of failure to pay fine 471 r/w 468 IPC Rigorous imprisonment (charge No.5) for 5 years and a fine of Rs.1,000/- with a default sentence of simple imprisonment for two months, in case of failure to pay fine M/s.Aliyar Paper Mills 120-B r/w 420 IPC A fine of Rs.500/- Private Limited (A5) (charge No.1) 120-B r/w 468 IPC A fine of Rs.500/- (charge No.3) 471 r/w 468 IPC A fine of Rs.1,000/- (charge No.5)
(A4-M/s.Aliyar Paper Mills Private Limited, being a company, fine imposed on it was directed to be paid by its Managing Director, namely A1-T.Ramaswamy)
5. Challenging the conviction and sentence A3-Bharat Rai has filed Crl.A.No.511/1999 and A1-T.Ramaswamy, A2-K.Venkataswamy and A4-M/s.Aliyar Paper Mills Private Limited have filed Crl.A.No.550/1999, on various grounds set out in the respective appeal petitions.
6. The story of the prosecution, in brief, is as follows:-
i) One Thiru.Nallusamy was the Manager of Pollachi branch of Indian Bank during the period from 1985 to 1988. M/s.Aliyar Paper Mills Private Limited (A4) was maintaining a current account in the said branch of Indian Bank during the above said period. Over Draft and Bill discounting facilities were also extended to A4-company for which separate accounts were maintained. For the said purpose, an agreement, a copy of which has been marked as Ex.P110 and a promissory note, a copy of which has been marked as Ex.P111 were executed in favour of the Indian Bank. During the relevant period A1-T.Ramaswamy was the Managing Director of M/s.Aliyar Paper Mills Private Limited (A4). He had been authorised by a resolution of the Board of Directors of the said company, a copy of which has been marked as Ex.P77 to make remittance into and draw money from the account of M/s.Aliyar Paper Mills Private Limited. An Authorisation Deed was also given to him under Ex.P78. He was authorised to draw up to Rs.15.00 Lakhs by using the Bill Discounting facility.
ii) It was the practice of M/s.Aliyar Paper Mills Private Limited to send paper bundles through lorries and submit to the Indian Bank, Pollachi branch, the Lorry Receipts, Invoice, Hundi, Insurance policy if the consignment was insured and a letter specifying the amount to be paid to the bank. The bank in turn would debit the amount shown in the bill from the Bill Purchase Account and credit the same in the current account of M/s.Aliyar Paper Mills Private Limited. After such debit and credit as aforesaid, the documents relating to the consignment would be sent to the branch of either the Indian Bank or any other bank at the place of business of the consignee, where the consignment was intended to be delivered. On receipt of the above said documents, the bank at the place of the consignee, would send intimation to the consignee requiring the consignee to make payment of the bill amount and get the Lorry Receipt, Invoice, Insurance policy and the Hundi with proper endorsement evidencing payment of the bill amount so that the consignee could take delivery of the goods from the transport office making payment of the amount mentioned as freight charges in the Lorry Receipts alone. With the help of the said documents alone, the consignee could take delivery of the goods from the lorry office.
iii) The above said arrangement was going on smoothly till 06.07.1985. Thereafter, since M/s.Aliyar Paper Mills Private Limited had been extended with such credit facilities, A1 to A4 and another person by name C.C.K.Venkatachalam hatched out a conspiracy to cheat the said bank. In pursuance of the said conspiracy, 13 bogus bills to the tune of Rs.4,27,946/-, were prepared in respect of 13 consignments allegedly despatched to (1) Meenakshi Paper Stores, No.61, First Agraharam Street, Salem, run by P.W.1-Subbiah, (2) Meyyappa Paper Stores, No.55, Anderson Street, Chennai run by P.W.4-Muthuraman (3) Vimala Trading Company, No.131, Big Bazaar Street, Kumbakonam run by P.W.5-Durairajan and (4) Pelicon Papers, No.233, Big Bazaar Street, L.G.B.Complex, Coimbatore, through M/s.Cargo Movers of India, whose name is found in the list of lorry transporters approved by Indian Bank Association with a code number CAC-241, discounted those bills with the Pollachi branch of Indian Bank and thus cheated the said bank to the tune of Rs.4,27,946/-. The details of the above said consignments regarding which forged/false Lorry Receipts were produced are as follows:-
Sl.
No. Date and Bill No. of the Company Invoice No. & Date Consignment Note Office of Issue Destin-ation Amount Consignee
1) 0179/85 25-7-85 1957 dt.29-7-85 M/s.Aliyar Paper Mills Ltd.Pollachi Salem 18036.00 Meenakshi Paper Stores, 61, First Agraharam, Salem-636001
2) 0180/85 -do-
1958 -do-
-do-
-do-
18036.00
-do-
3)
0181/85 -do-
1959 -do-
-do-
-do-
18036.00
-do-
4)
0182/85 -do-
1960 -do-
-do-
-do-
18036.00
-do-
5)
0183/85 -do-
1961 -do-
-do-
-do-
18036.00
-do-
6)
0123/85-86 6.7.85
2129 dt.6.7.85
-do-
Madras
87937.00
Meyappa Paper Stores, 55, Anderson Street, Madras-1
7)
0124/85-86 -do-
2130 -do-
-do-
-do-
59113.00
-do-
8)
0231/85-86 17.8.85
1980 dt.17.8.85
-do-
Kumbakonam
22782.00
Vimala Trading Company, 131, Big Bazaar Street, Kumbakonam,
9)
0163/85-86 22.7.85
2145 dt.21.7.85
-do-
-do-
57736.00
-do-
10)
0162/85-86 22.7.85
2144 dt.22.7.85
-do-
-do-
57356.00
-do-
11)
0327/85-86 8.10.85
2007 dt.8.10.85
-do-
Coimbatore
14154.00
M/s.Pelicon Papers, No.233, Big Bazaar St., LGB Complex, Coimbatore
12)
0328/85-86 8.10.85
2008 dt.8.10.85
-do-
-do-
19344.00
-do-
13)
0329/85-86 8.10.85
2009 dt.8.10.85
-do-
-do-
19344.00
-do-
TOTAL
4,27,946.00
-do-
iv) After the bills relating to each one of the above said 13 consignments were discounted with the Indian Bank, Pollachii branch, the Lorry Receipts, Bills and the consignment papers were sent to (1) the Manager of State Bank of Travancore, Salem in respect of the consignments made to Meenakshi Paper Stores, Salem, (2) Indian Bank, Esplanade Branch, Chennai in respect of the consignments made to Meyyappa Paper Stores, Chennai, (3) Indian Bank, Kumbakonam in respect of the consignments made to Vimala Trading Company, Kumbakonam and (4) Indian Bank, Coimbatore in respect of the consignments made to Pelicon Papers, Coimbatore, respectively, for collection of the bill amounts from the consignees concerned. When the consignees were intimated by the Branch Managers of the above said banks, the consignees failed to honour the bills by making payment and therefore the bills were returned to Indian Bank, Pollachi branch. On enquiry, it was found that there was no transport undertaking in the name of M/s.Cargo Movers of India, having its operation in Tamil Nadu and that the materials were actually sent to the consignees through M/s.Indian Transport Industries with the help of A3-Bharath Rai and one Venkatachalam, referred to above and not through M/s.Cargo Movers of India. It was also found that the consignees concerned got delivery of the goods from the office of the above said transporters, namely M/s.Indian Transport Industries after making payment of the freight charges and adjusted the bill amounts against the advance paid by them to A4 - M/s.Aliyar Paper Mills Private Limited and that the same was the reason for their failure to honour the bills in respect of the advice received by them from the concerned branches of the State Bank of Travancore and Indian Bank, as the case may be. As such, all the above referred 13 bills were returned to Indian Bank, Pollachi branch without the amount covered by them being realised. The fact of the non-payment of the bill amounts by the consignees was informed to A4 - M/s.Aliyar Paper Mills Private Limited by a letter marked as Ex.P81. A1-Ramaswamy (since deceased), Managing Director of M/s.Aliyar Paper Mills Private Limited, was also informed of the fact and was requested to immediately arrange for payment of the bill amounts together with interest immediately under letters marked as Exs.P82 to P84. In the last of such letters it was also informed that the lorry offices were incurring demurrages regarding the un-cleared goods and the charges for the same and also that the charges for re-booking the goods should be borne by A4 - M/s.Aliyar Paper Mills Private Limited.
v) Though A1-Ramaswamy, on behalf of A4 - M/s.Aliyar Paper Mills Private Limited, sent replies to the above said letters undertaking to repay the amount, they failed to do so. Realising the fact that the bank had been cheated by the accused persons, P.W.21-Nallusamy, the then Manager of Indian Bank, Pollachi Branch, lodged a complaint, marked as Ex.P106 on the file of the Pollachi West Town Police Station on 28.04.1986 against A1-T.Ramaswamy (deceased) and M/s.Cargo Movers of India, Calcutta for an alleged offence punishable under Section 420 IPC. Based on the said complaint, Ex.P107 First Information Report was prepared and a case was registered in Cr.No.229/1986 for the offence under Section 420 IPC against A1-T.Ramaswamy (deceased) and M/s.Cargo Movers of India, Calcutta on the file of the said police station. Initially, the investigation was done by one Mr.K.P.Selvarajan, Inspector of Police, Pollachi Town Circle. Subsequently, the Superintendent of Police, Coimbatore District (Rural) by his order dated 01.07.1986 transferred the case to the file of District Crime Branch, Coimbatore (Rural) pursuant to which the case was re-registered as DCB Crime No.2/1986 on the file of the District Crime Branch, Coimbatore (Rural) for the very same offence against the very same persons. Thereafter, P.W.19 Thiru.Rajendran, the then Inspector of Police, District Crime Branch, Coimbatore, conducted further investigation, collected materials and examined most of the witnesses. During the course of his investigation, A1-T.Ramaswamy (deceased) was arrested on 02.03.1989 and was sent for remand.
7. Thereafter, the Superintendent of Police, Coimbatore (Rural District) submitted a report to the Director General of Police, Chennai and based on the said report, the Director General of Police, Chennai passed an order under Ex.P108 dated 28.12.1998 directing transfer of the investigation of the said case to Central Bureau of Investigation. Consequent to the said order of the Director General of Police, P.W.22-Mr.M.Gopalan, Inspector of Police, Central Bureau of Investigation, re-registered the case as R.C.No.10/S/1990 for which he prepared an altered First Information Report under Ex.P112. A copy of the letter addressed by the Director General of Police to the Superintendent of Police, Special Crime Branch, Central Bureau of Investigation, Chennai has also been produced as Ex.P113. Then P.W.22 took up the investigation and examined some of the witnesses and thereafter handed over the investigation file to P.W.25 - Thiru.Jegannathan, Deputy Superintendent of Police, Central Bureau of Investigation, for further investigation. P.W.25 Jegannathan, during the course of his investigation conducted a search in the office of A3-Bharath Rai on 08.01.1991 and seized nine documents under Ex.P126-Search List. Similarly, the office of M/s.India Transport Industries Pvt. Limited at door No.126, Kilpauk Garden, Chennai was also searched and certain documents were recovered. Specimen signatures of A1 to A3 were obtained under Ex.P124 series. The said documents were sent to P.W.23 - H.M.Saxena, Handwriting Expert, along with the signatures found in the seized documents marked as Ex.P115 to P123. P.W.25, the Deputy Superintendent of Police, Central Bureau of Investigation, on conclusion of his investigation, submitted a final report alleging commission of offences punishable under Sections 120-B r/w 420 IPC, 420 IPC, 468 IPC and 471 r/w 468 IPC by the appellants herein (A1 to A4) and one Venkatachalam.
8. In the said final report, among accused, A1 to A3 herein were ranked in the same manner. Venkatachalam was arraigned as accused No.4 and M/s.Aliyar Paper Mills Private Limited (at present A4) was arraigned as A5. The learned First Additional Sessions Judge cum Chief Judicial Magistrate took it on file as C.C.No.32/1992. On issuance of summons, the persons originally arraigned as A1 to A3 and A5 alone entered appearance and Venkatachalam, who had been arraigned as A4 did not appear. Hence by an order made in Crl.M.P.No.862/1992, the case against the said Venkatachalam alone was split up and de-linked from the main case and separately numbered as C.C.No.2/1993. Pursuant to the splitting up of the case relating to the said Venkatachalam from the main case, the array of the remaining accused in the main case was modified by ranking M/s.Aliyar Paper Mills Private Limited as A4 instead of the original rank as "A5" and retaining the ranks of the other three, namely A1-Ramaswamy, A2-K.Venkataswamy and A3-Bharath Rai as A1 to A3. Thereafter on being questioned regarding the allegations made against them in the final report, the appellants herein (A1 to A4) pleaded not guilty. The learned trial judge framed necessary charges, five in number, as indicated supra. When the charges were read over and explained to the accused, namely A1 to A4 (appellants herein), they again pleaded not guilty and hence the trial was conducted.
9. In order to prove its case, the prosecution examined 25 witnesses as P.Ws.1 to 25 and marked 126 documents as Exs.P1 to P126 on its side. No material object was produced. After completion of the recording of evidence adduced on the side of the prosecution, the attention of the appellants herein (A1 to A4) were drawn to the incriminating materials found in the evidence adduced on the side of the prosecution and they were questioned regarding the same under Section 313(1)(b) of Cr.P.C. The appellants herein (A1 to A4) submitted that the evidence adduced against them were false and reiterated their stand that they were innocent. One witness was examined as D.W.1 on the side of the appellants herein/accused 1 to 4 and no document was produced on their side. However, the covering letter for Ex.P125 (experts opinion) was marked as a court document and was assigned the mark Ex.C1.
10. After hearing the arguments on both sides, the learned First Additional Sessions Judge cum Chief Judicial Magistrate considered the evidence and upon such consideration, came to the conclusion that the appellants herein/accused 1 to 4 were guilty as per the charges, convicted them and sentenced them with punishments as indicated supra. Challenging the conviction and sentence, these two criminal appeals have been filed on various grounds set out in the appeal petitions.
11. The point that arises for consideration in these appeals is as follows:-
" Whether the prosecution has not proved the charges against the appellants/accused 1 to 4 beyond reasonable doubt, as contended by the appellants in these appeals and whether or not the judgment of the court below is liable to be interfered with in respect of both the conviction and sentence or in respect of the sentence alone?"
12. This court heard the arguments advanced by Mr.D.Krishnan, learned counsel for the appellant in Crl.A.No.511/1999, by Mr.D.Shivakumaran, learned counsel for the appellants in Crl.A.No.550/1999 and by Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI cases representing the respondent, perused the materials available on record and paid its anxious considerations to the same.
13. The gist of the prosecution story, is, as follows:-
A1 Mr.T.Ramaswamy (since deceased), the then Managing Director of M/s.Aliyar Paper Mills Private Limited and the other accused persons, namely A2 to A4 and also one Venkatachalam, the accused in the split up case, entered into a criminal conspiracy to cheat Indian Bank, using Bill Discounting facilities extended to A4 M/s.Aliyar Paper Mills Private Limited. In furtherance of the conspiracy, forged and bogus bills were raised regarding 13 consignments as if finished paper goods were sent through M/s.Cargo Movers of India and the said bills to the tune of Rs.4,27,946/-, were discounted with the Indian Bank, Pollachi branch. The said transport operator M/s.Cargo Movers of India, was not having its operation in Tamil Nadu during the relevant period. The bank was cheated of the said amount by despatching the consignments through other transporters and sending the genuine lorry receipts and bills directly to the consignees so as to enable them to claim and get the consignments from the office of the transporters without the knowledge of Indian Bank. Based on the said story of the prosecution, the appellants/accused 1 to 4 were accused of committing the offences for which charges were framed and they were made to face trial before the trial court.
14. Though all the three appellants in Crl.A.No.550/1999 (A1, A2 and A4) and the sole appellant in Crl.A.No.511/1999 (namely A4) were convicted by the trial court and all of them have chosen to challenge the conviction as well as the sentence by preferring appeals, the charge as against the first appellant in Crl.A.No.550/1999 (A1) stands abated, since he died on 15.05.2002 and on production of a copy of the death certificate and also on confirmation of the same by the respondent, the same was recorded. Hence, in these appeals the sustainability of the conviction of the sole appellant in Crl.A.No.511/1999 (A3) and appellants 2 and 3 in Crl.A.No.550/1999 (A2 and A4) alone has got to be considered. Hereafter the term appellants shall mean the above said appellants alone.
15. It is the contention of the learned counsel for the appellants in Crl.A.No.550/1999 (A2 and A4) that there was no criminal conspiracy, as alleged by the prosecution; that it is not correct to state that M/s.Cargo Movers of India is not existing in Tamil Nadu as the same is not a transport company having its operations in Tamil Nadu; that the said transport operator might have used their franchisees at various places wherein they did not have their offices; that only through the said transport operator, namely M/s.Cargo Movers of India, the goods relating to the consignments concerned in this case were sent; that if at all any mischief was committed, the same could have been done by the transport operator in making delivery of the consignments to the consignees without insisting upon the production of the lorry receipts and the bills with endorsements for the payment of the invoice amount; that some of the consignees, because of the financial instability of M/s.Aliyar Paper Mills Private Limited perceived by them, wanted M/s.Aliyar paper Mills Private Limited (A4) to adjust the deposits they had made towards the price of the consignments; that they had even asked for the return of the balance amount after adjusting the price of the consignments from the deposits; that under such circumstances alone, the fourth accused, namely M/s.Aliyar Paper Mills Private Limited had to settle the claim of the bank either directly or by re-directing the goods to other dealers/customers and that under such circumstances it is incorrect to state that there was any part played by any of the appellants in Crl.A.No.550/1999 in the alleged conspiracy or in the alleged forging/fabricating of documents. It is the further contention of the learned counsel for the appellants in Crl.A.No.550/1999 that the Central Bureau of Investigation, initially chose to implicate P.W.21-Nallusamy, the then Manager of Indian Bank, Pollachi branch, as one of the conspirators and that subsequently, for the reasons best known to the Central Bureau of Investigation, perhaps knowing fully well that the prosecution of the said official of the Indian Bank jointly with the appellants in these appeals would weaken the case of the prosecution or even demolish the case of the prosecution, has chosen to leave P.W.24 and prosecute the other accused persons alone.
16. The learned counsel for the appellant in Crl.A.No.511/1999 (A3) would contend that the said appellant did function as the transporter for transporting the consignments made by M/s.Aliyar Paper Mills Private Limited to various consignees at various places and the said appellant did not violate any procedure in delivering the consignments to the consignees on the receipt of the lorry receipt and payment of the freight charges, since no specific instructions had been given to them either by the consignor or by the bank not to release the consignments without ensuring payment of the bill amount to the bank. It is his further contention that the branch offices of the banks to which the bills and lorry receipts were sent, ought to have refrained from handing over the lorry receipts to the consignees enabling them to claim the consignments from the lorry office on payment of freight charge and that the officers of the branches of the bank at the consignees' end might have handed over the lorry receipts without receiving the bill amount on the premise that the consignees were having deposits with the consginors and they wanted the cost of the consignments to be adjusted against the deposits. The learned counsel appearing for the appellants in both the appeals have argued that the above said contentions of the appellants in Crl.A.No.511/1999 (A3) becomes probable and creates a reasonable doubt as to why the officers of the bank at the consignee's end should not have released the lorry receipts without ensuring payment of the bill amount.
17. On the contrary, it is the contention of the learned Special Public Prosecutor for CBI cases that the conspiracy to cheat the bank has been proved by clear and cogent evidence; that the prosecution has also proved the forging and fabrication of lorry receipts in pursuance of the said conspiracy as if goods were sent through M/s.Cargo Movers of India, whereas in fact no such despatch was made through M/s.Cargo Movers of India; that the prosecution has also proved beyond reasonable doubt by reliable evidence that M/s.Cargo Movers of India does not operate its fleets in Tamil Nadu; that the prosecution also proved possession by A3of materials used in forging and fabricating transport delivery receipts; that the trial court, on proper consideration of evidence, arrived at a correct conclusion that the appellants in both the appeals were guilty of the offences with which they stood charged and that therefore, the well considered judgment of the trial court, convicting the appellants in both the appeals for the above mentioned offences, should not be interfered with and on the other hand should be confirmed.
18. This court paid its anxious consideration to the above said submissions made on both sides and also to the materials available on record.
19. Charge No.1 framed against the appellants in both the appeals is one for an offence punishable under Section 120-B IPC r/w 420 IPC. It was framed based on the allegation that the appellants in both the appeals (A1 to A4) and Venkatachalam, the accused in the split up case, hatched out a conspiracy to cheat Indian Bank by discounting bills relating to thirteen consignments covered by forged/fabricated lorry receipts as if they were sent through M/s.Cargo Movers of India, whereas actually the goods concerned in the consignments were not sent through the said transport operator. Charge No.2 has been framed against accused Nos.1 and 2/appellant No.1 (since deceased) and appellant No.2 in Crl.A.No.550/1999 to the effect that by discounting bills relating to such false consignments they withdrew a sum of Rs.4,27,946/- from the Bill Purchase account maintained in the name of M/s.Aliyar Paper Mills Private Limited with the Indian Bank, Pollachi Branch. Charge No.3 has been framed against the appellants in both the appeals (A1 to A4) for an alleged conspiracy to forge/fabricate bogus lorry receipts as if goods worth Rs.4,27,946/- were sent through a particular transport operator to enable M/s.Aliyar Paper Mills Private Limited (A4), through its Managing Director (A1 since deceased), to draw the above said sum from Indian Bank, Pollachi branch by discounting bills relating to such consignments, punishable under Section 120-B r/w 468 IPC. Charge No.4 has been framed against A1 (deceased) and A2/appellant 1 and 2 in Crl.A.No.550/1999 for an offence of forgery for the purpose of cheating punishable under Section 468 IPC for the alleged forgery/fabrication of bogus lorry receipts in respect of thirteen consignments. Charge No.5 has been framed against all the appellants in both the appeals (A1 to A4) for an alleged offence of using forged/fabricated documents as genuine documents for the purpose of drawing the amounts from the Bill Purchase Account of M/s.Aliyar Paper Mills Private Limited punishable under Section 471 IPC r/w 468 IPC.
20. Out of the above said five charges, charge Nos.1 and 3 have been framed for alleged conspiracy among the appellants in both the appeals (A1 to A4) to cheat Indian Bank, Pollachi branch and to fabricate/forge bogus lorry receipts for the purpose of such cheating. As it is quite normal, there is no direct evidence for the proof of the offence of conspiracies for which charge Nos.1 and 3 were framed. The proof of the said charges shall be made on circumstantial evidence and hence it mainly depends on the proof of the other offences, namely offences punishable under Sections 420 IPC and 468 IPC regarding which charge Nos.2 and 4 have been framed. Proof of charge No.5 framed against all the appellants in both the appeals (A1 to A4) for an alleged offence of using a forged/fabricated document as genuine one for the purpose of cheating, punishable under Section 471 IPC r/w Section 468 IPC, shall also play a role in the substantiation of charge Nos.1 and 3. Therefore, it shall be not only convenient, but also useful to deal with charge Nos.2, 4 and 5 before dealing with the question of proof of charge Nos.1 and 3. Even among the three charges, namely charge Nos.2, 4 and 5, the proof of charge No.2 framed for the offence of cheating punishable under Section 420 IPC depends upon the proof of charge Nos.4 and 5, namely the charges for the offences of forging/ fabricating false documents and using such forged/fabricated documents as genuine punishable under Sections 468 IPC and Section 471 r/w 468 IPC respectively. Charge No.5, namely a charge for the offence under Section 471 r/w 468 IPC depends on the proof or otherwise of the charge of forging/fabricating false documents punishable under Section 468 IPC, namely Charge No.4. Therefore, we have to take up charge No.4 framed against A1-T.Ramaswamy (since deceased) and A2-K.Venkataswamy for the alleged offence punishable under Section 468 IPC for discussion at the first instance.
21. The case of the prosecution is that using the bill discount facility extended to M/s.Aliyar Paper Mills Private Limited by the Indian Bank, Pollachi branch, the said Paper mills used to discount the bills relating to consignments made to its dealers/customers; that the amount covered by the bills relating to 13 such consignments were not paid to the Indian Bank by the consignees concerned; that on enquiry, it was found that goods relating to those 13 bills were not consigned through M/s.Cargo Movers of India but Lorry Receipts were falsely prepared as if they were sent through the lorries belonging to the said transport operator; that the goods relating to the said bills were transported through another transport operator, whose name does not find a place in the list of approved transporters maintained by the Indian Bank Association; that the lorry receipts were directly sent to the consignees through such transport operators enabling the consignees to take delivery of the goods from the transport office without making payment of the bill amount to the Indian Bank and that thus the Indian Bank, Pollachi branch was cheated of a sum of Rs.4,27,946/-. The particulars of the 13 consignments relating to which bogus lorry receipts had been prepared for the purpose of discounting the bills with the bank, are as follows:
Sl.
No. Date and Bill No. of the Company Invoice No. & Date Consignment Note Office of Issue Destin-ation Amount Consignee
1) 0179/85 25-7-85 1957 dt.29-7-85 M/s.Aliyar Paper Mills Ltd.Pollachi Salem 18036.00 Meenakshi Paper Stores, 61, First Agraharam, Salem-636001
2) 0180/85 -do-
1958 -do-
-do-
-do-
18036.00
-do-
3)
0181/85 -do-
1959 -do-
-do-
-do-
18036.00
-do-
4)
0182/85 -do-
1960 -do-
-do-
-do-
18036.00
-do-
5)
0183/85 -do-
1961 -do-
-do-
-do-
18036.00
-do-
6)
0123/85-86 6.7.85
2129 dt.6.7.85
-do-
Madras
87937.00
Meyappa Paper Stores, 55, Anderson Street, Madras-1
7)
0124/85-86 -do-
2130 -do-
-do-
-do-
59113.00
-do-
8)
0231/85-86 17.8.85
1980 dt.17.8.85
-do-
Kumbakonam
22782.00
Vimala Trading Company, 131, Big Bazaar Street, Kumbakonam,
9)
0163/85-86 22.7.85
2145 dt.21.7.85
-do-
-do-
57736.00
-do-
10)
0162/85-86 22.7.85
2144 dt.22.7.85
-do-
-do-
57356.00
-do-
11)
0327/85-86 8.10.85
2007 dt.8.10.85
-do-
Coimbatore
14154.00
M/s.Pelicon Papers, No.233, Big Bazaar St., LGB Complex, Coimbatore
12)
0328/85-86 8.10.85
2008 dt.8.10.85
-do-
-do-
19344.00
-do-
13)
0329/85-86 8.10.85
2009 dt.8.10.85
-do-
-do-
19344.00
-do-
TOTAL
4,27,946.00
22. It is the contention of the prosecution that after discounting the bills relating to the above said consignments and drawing the amount from the bank, the goods were directly sent to the consignees through some other transport operators and thus the Indian Bank, Pollachi branch, was cheated. Per contra, it is the contention of the appellants in Crl.A.No.550/1999 that no bogus Lorry Receipts were prepared for the purpose of discounting the bills relating to the above said consignments as contended by the prosecution and that on the other hand, either the bank officials might have delivered the Lorry Receipts without ensuring payment of the bill amount or the transport operator might have effected delivery without the production of the original Lorry Receipts and the copy of the bills containing the endorsements evidencing payment of the bill amount. In this regard, the learned counsel for the appellants in Crl.A.No.550/1999 has drawn the attention of the court to the admissions made by the prosecution witnesses, especially by P.W.21-Nallusamy, who was the Manager of the Pollachi branch of Indian Bank during the relevant period, to the effect that the consignees in respect of certain consignments failed to make payment of the bill amount, pursuant to which a letter under Ex.P82 was addressed to M/s.Aliyar Paper Mills Private Limited on 27.01.1986 directing remittance of the bill amount stating that the goods were directly delivered to the consignees. The learned counsel also pointed out the admission made by P.W.21 - Nallusamy that out of 113 bills discounted with the Indian Bank, payment was not received in respect of 13 bills alone and that in respect of other consignments, the goods were sent through Cargo Movers of India and the bill amounts in respect of those consignments were collected from the consignees by the bank. The learned counsel for the appellant in Crl.A.No.550/1999 also drew the attention of the court that even the Cargo Movers of India was not proved to be one of the approved transporters found in the list of such approved transporters furnished to all the branches of Indian Bank. The learned counsel also pointed out the admission made by P.W.9 R.M.Karuppaiah, a Senior Manager of Indian Bank, to the effect that a list of approved transport operators had been supplied to all the branches of Indian Bank; that Ex.P104 is the copy of the list and the name of M/s.Cargo Movers of India is not found in the said approved list and that the approved list of transport operators would not be furnished to the parties enjoying bill discounting facilities. The learned counsel also drew the attention of the court to the admission made by P.W.9 to the effect that even though a list of approved transport operators had been supplied to each one of the branch offices, it was also the practice of the banks to discount the bills for the consignments despatched through a transport operator, whose name did not find a place in such approved list. The learned counsel drew the attention of the court to the further admission made by P.W.14-K.Jegannathan, another Manager of Indian Bank to the effect that there was no agreement between the Indian Bank and Cargo Movers of India and that though a list of approved transport operators had been made available with each branch of Indian Bank, the bank did have only a right to insist upon the despatch of the consignment through one of such approved transporters. The learned counsel also pointed out the admission made by P.W.21 that he did not verify whether the goods were sent through the lorries belonging to Cargo Movers of India and that M/s.Aliyar Paper Mills Private Limited (A4) was not provided with a list of approved transport operators.
23. Pointing out the above said admissions, the learned counsel for the appellants in Crl.A.No.550/1999 contended that a deliberate attempt was made to suppress the list of approved transport operators since Cargo Movers of India was not found in such list marked as Ex.P104; that there was no necessity to forge or fabricate a lorry receipt in the name of a transport operator, whose name did not find a place in the approved list of transport operators; that it was the practice of the bank to accept the bills for discounting even in respect of consignments despatched through transport operators, whose names did not find a place in the list of approved transport operators and that the bank did possess only a right to insist upon despatching the consignment through an approved transporter and that in this case, since admittedly the bills relating to the consignments despatched through Cargo Movers of India were allowed to be discounted when the name of such a transport operator was not found in the list of approved transport operators, the alleged forgery and fabrication of lorry receipts in the name of Cargo Movers of India to cheat the bank should be ruled out. The learned counsel has also pointed out the fact that it is an admitted case of the prosecution and the bank officials that goods relating to all the above said 13 consignments were, in fact, despatched and that it is not the case of the prosecution that bogus bills were prepared and discounted with the bank without despatching the goods to the consignees.
The learned counsel for the appellant in Crl.A.No.511/1999 (A3) would also contend that he (A3) was running a separate transport company and at times goods were sent through the goods vehicle belonging to his transport company for which bills in its original name were issued and that when the banks were accepting bills for discounting relating to consignments sent through transport operators whose names were not found in the list of approved transporters, there was no necessity for A3 to forge and fabricate lorry receipts in the name of Cargo Movers of India, which is also not an approved transport operator found in the said list.
24. On the contrary, the learned Special Public Prosecutor for CBI cases would rely on the evidence of the Investigating Officer and the mahazar witnesses to prove the possession of such bills and lorry receipts printed in the name of Cargo Movers of India, which were allegedly seized from A3 and would contend that by an ingenious device, the bank was cheated of the above said amount by sending the goods directly to the consignees through some other transporters, after discounting the bills for such consignment with the bank showing them to be sent through Cargo Movers of India.
25. Understanding the nature of arrangement between Indian Bank and M/s.Aliyar Paper Mills Private Limited and the manner in which the said arrangement was practically put into action shall be of immense use in properly appreciating the issues involved in this case. Consignment of finished goods would be despatched to various consignees (dealers) at various places. The invoice for the consignment, the declaration of the consignment for the purpose of coverage of insurance, lorry receipt and advice note to pay the bill amount to the bank would be submitted by M/s.Aliyar Paper Mills Private Limited to the bank after despatch of the consignment to the consignee. On receipt of such papers, the Pollachi branch of Indian Bank will discount the bill, debit the amount from the bill discounting account of M/s.Aliyar Paper Mills Private Limited and credit the same to the current account of the said mill. The said documents, thereafter, would be sent to the nearest branch of Indian Bank or any other bank at the consignee's place. On receipt of the consignment papers in the said branch of the Indian Bank or the other bank at the place of the consignee, the branch manager would issue an intimation to the consignee, after ascertaining the receipt of the consignment through the transporter, informing that the consignee could make payment of the bill amount, get the Lorry Receipt and take delivery of the consignment from the transport office on payment of freight charges to the transporter as found in the lorry receipt. On receipt of the bill amount from the consignee, the same would be intimated to the Indian Bank, Pollachi branch. In case any consignee would fail to make the payment of the bill amount and take delivery of the consignment, the same would be intimated to the Pollachi branch of Indian Bank and the Pollachi branch of Indian Bank, in turn, would inform M/s.Aliyar Paper Mills Private Limited. Thereafter, M/s.Aliyar Paper Mills Private Limited would make arrangement for redirecting the consignment to any other consignee and for the payment of the bill amount by such other consignee or by the paper mills directly.
26. The case of the prosecution has two facets. The first one is that A1-Ramaswamy (since deceased) and A2-Venkataswamy, got bogus lorry receipts prepared in the name of Cargo Movers of India as if goods were sent through the said transport operators, whereas it was in fact not done so. According to the prosecution case as evidenced by the charge-sheet, they were actually sent through M/s.Indian Transport Industries with the help of A3-Bharath Rai and Venkatachalam, the accused in the split up case. It must be borne in mind that it is an admitted case of the prosecution that the goods concerned in 13 consignment notes in respect of which bills were discounted with the Indian Bank, Pollachi branch, but the bill amounts were not paid by the consignees were, in fact, sent to the consignees. It is also the case of the prosecution that such goods were delivered to the consignees directly without the bill amount being paid by the consignees to the bank honouring the Advice Note. Admittedly there was no direct agreement between the bank and the consignees. On the other hand, the arrangement was that whenever goods were sent to the consignees, the Delivery Note (Lorry Receipt) would be routed through Indian Bank along with the Hundi and other documents and the bank, in turn would send an Advice Note to the consignee to make payment of the invoice amount and get the Delivery Note (Lorry Receipt) and that upon such payment, the Lorry Receipt would be handed over to the consignee, with the help of which, the consignee could claim the goods from the transporter, of course on payment of the freight charge.
27. Several bills relating to a number of consignments were discounted with the Indian Bank, Pollachi branch. According to the evidence of P.W.21-Nallusamy, 113 such bills were discounted during the relevant period. All those consignments, except 13 bills referred to supra, were properly delivered to the consignees. The consignees concerned paid the bill amount for all such consignments and took delivery of the same. The 13 consignments, for which bill amounts were not paid to the bank, were also sent to the consignees, but through an un-approved transporter in the name of an approved transporter. It is not in dispute that Lorry Receipts were obtained in the name of M/s.Cargo Movers of India in respect of all the 13 consignments. The lorry receipts have been marked as Exs.P17, P20, P25, P29, P33, P37, P41, P45, P49, P53, P57, P61 and P65. According to the prosecution story, they were forged documents created with the object of cheating the bank. At the outset, it can be said that evidence is lacking on the side of the prosecution to show how the bank was sought to be cheated. At the cost of repetition, it is once again pointed out that it is not the case of the prosecution that goods covered by the said Lorry Receipts and the connected bills were not actually despatched and the bills were falsely prepared for using the Bill Discount facility extended by the bank without actually despatching the consignments. On the other hand, admittedly the goods concerned in those consignments were despatched to the parties. It is the case of the prosecution, as revealed in the Final Report, that the goods were in fact sent through M/s.India Transport Industries and delivered to the parties directly. But, unfortunately, the prosecution has miserably failed to prove that the goods concerned in the above said 13 consignments were sent through M/s.India Transport Industries. There is no tangible evidence to show that the goods were sent through M/s.India Transport Industries and not through M/s.Cargo Movers of India.
28. P.W.17-Muthukrishnan has been examined to show that A3-Bharat Rai and Venkatachalam (accused in the split up case) were tenants under him for about three months in 1986 and that no transport office as M/s.Cargo Movers of India was functioning in the said portion let out by him to them. At the same time, he would state in the cross-examination that he met A3-Bharat Rai only once before he appeared in the court as P.W.17 and that he did not know even his name and address. The evidence of P.W.17 seems to be self-contradictory. According to his testimony, the monthly rent for the portion let out by him to A3 and Venkatachalam was Rs.300/- and the advance paid was Rs.4,000/-; A3-Bharat Rai and Venkatachalam paid rent for one month alone; thereafter they asked him to adjust the advance towards the rent and they were there as his tenants for a total period of three months. It is not his evidence that he repaid any amount as balance of advance. He has also failed to give any figure as the amount repaid, if any, as balance amount of advance. P.W.17 has also admitted that there is no record to show that the concerned accused were tenants under him in respect of the rear portion of his house. Therefore, the evidence of P.W.17 is to be eschewed as not reliable. Moreover, his evidence shall not be helpful to prove that the goods were sent through M/s.India Transport Industries.
29. P.W.18-M.K.Bohra was examined to show that A3-Bharat Rai was running a transport company called India Transport Industries and he got the ledgers, delivery challans, visiting cards, consignment notes etc. for the said company printed in the printing press run by P.W.18. But no document allegedly printed by P.W.18 for A3-Bharat Rai, has been produced by the prosecution. On the other hand, Ex.P25 and Ex.P100 series were sought to be projected as documents printed by P.W.18 in the name of M/s.Cargo Movers of India on the orders of A3-Bharat Rai. But, P.W.18 has stoutly denied such a suggestion made on the side of the prosecution. It is pertinent to note that since P.W.18 did not support the prosecution case, he was treated hostile and was cross-examined by the prosecutor. However, no answer helpful to the prosecution could be elicited from him. Hence the evidence of P.W.18 also should be eschewed as not helpful to prove the prosecution case.
30. P.W.24 Sankaran have been examined to show that blank consignment note books in the name of M/s.Cargo Movers of India, Collection Register relating to Coimbatore for the year 1985-86, a file containing letters relating to Coimbatore and a file containing vouchers relating to transactions at Coimbatore were seized under the cover of Ex.P126 Mahazar (search list). P.W.24 was examined as a Mahazar witness. The other witnesses, who were allegedly present at the time of search and seizure, were not examined as witnesses on the side of the prosecution. P.W.24, who is projected as Mahazar witness, would say that at the time of search and seizure, there were 3 or 4 employees working in the transport company. At the same time he has also stated that he did not know whether there were other documents except those that were seized. He pleaded ignorance as to whether there was a godown. He was not able to say how many rooms were there in the office. It is also pertinent to note that P.W.24 did not even state the name of the office in which the search was conducted and seizure was made. The evidence of P.W.24, in this regard, is to the effect that Ex.P126-Mahazar (seizure list) was prepared by a constable. But, in Ex.P126, the name of the officer who conducted search has been noted as S.Jegannathan, Deputy Superintendent of Police, Central Bureau of Investigation. It also contains the signature of one P.Rajkumar, Inspector of Police, Central Bureau of Investigation. Ex.P126 is not a document prepared in the handwriting of anybody. It is a typed one. P.W.24 did not state that the mahazar was typed. P.W.24 did not even speak about the presence of the Deputy Superintendent of Police and the Inspector of Police. It is not his evidence that the seizure mahazar (search list) was typed. The failure to state how the mahazar was prepared (handwritten or typewritten) assumes more importance in the light of his statement in the latter part of his chief examination to the effect that he was asked to come to the said place after a month's time from the date of search and he went there to be a witness for obtaining specimen signatures and specimen writings. After making this statement, P.W.24 woke up and corrected his version to the effect that at that point of time, he went to the office of the Central Bureau of Investigation. It was his further evidence that he went to the said place, namely the office of the Central Bureau of Investigation. For better appreciation, his answer in the vernacular version is reproduced:-
"xU khjj;jpw;F gpwF vd;id jpUk;gt[k; me;j ,lj;Jf;F mjhtJ rpgpI mYtyfj;Jf;F vd;id Tg;gpl;L tpl;ldh;/ ehd; nghndd;/"
A consideration of the above said answer in the light of the words highlighted and in the light of the fact that P.W.24 did not say anything about the presence of the Deputy Superintendent of Police and the Inspector of Police or the manner in which the Mahazar was prepared (either handwritten or type written), will give rise to a reasonable doubt regarding the alleged seizure made in the office of A3 Bharat Rai.
31. Even the Investigating Officer (P.W.25), who is alleged to have conducted the search and made the seizure, is sceptical in his evidence as to whether the search was made in the office or residence of A3. At the first instance, he stated that it was the house of A3 in which the search was made. But, immediately thereafter he changed his version and referred to the place of search as office of A3. He also wrongly referred to the initial of P.W.24 as 'P' instead of 'G'. The evidence of P.W.25 is to the effect that the sample signature of A1-T.Ramaswamy (since deceased) and that of A3-Bharat Rai were obtained on 07.02.1991. Nowhere in his evidence he has stated that the sample signatures of A3-Bharat Rai found in Ex.P124 were obtained on 11.02.1991. In his evidence, P.W.24 has mentioned the date of search as 08.01.1991. But, he did not give any specific date on which specimen signatures of A3-Bharat Rai found in Ex.P124 were obtained. It is pertinent to note that in Ex.P124, below the signature of P.W.24, he has written 11.02.1991 indicating the date on which the signature was made. The date found noted along with the signature of A3 - Bharat Rai has been corrected from "07.02.1991" to "11.02.1991". From the same, a reasonable doubt arises as to whether the search and seizure could have been made in the presence of P.W.24.
32. In the light of the discrepancies pointed out supra, the case of the prosecution that the lorry bills were forged has got to be considered. In this regard certain admissions made by the witnesses examined on the side of the prosecution assumes importance. Though the Investigating Officer (P.W.25) could have stated that the goods should be sent through approved transporters and that the bills regarding such consignments sent through approved transporters alone could be discounted with the bank, it is also his evidence that M/s.Cargo Movers of India was an approved transport operator and that he recovered such a list of approved transporters, in which M/s.Cargo Movers of India also figured as one of the approved transport operators. But no such list showing M/s.Cargo Movers of India, one of the approved transport operators has been produced on the side of the prosecution. P.W.25 himself has admitted that the goods were in fact sent to the consignees and were delivered to the consignees concerned, but the consignees failed to make payment of the cost of the goods to the bank. On the other hand, Ex.P104 produced on the side of the prosecution as the list of approved transporters, does not contain the name of M/s.Cargo Movers of India as one among the approved transport operators. The fact that M/s.Cargo Movers of India is not one of the approved transport operators stands confirmed by the evidence of P.W.9-Karuppaiah. He has candidly admitted that a list of approved transporters was made available to the Managers of all the branches of Indian Bank and the name of M/s.Cargo Movers of India did not find a place in the said list. It is also his admission that despite the fact that the list of approved transport operators was made available to the Managers of all the branches of Indian Bank, they used to accept the bills for discounting in respect of goods sent through un-approved transporters also. The testimony of P.W.9 in this regard in vernacular version is extracted here under for better appreciation:-
"xt;bthU t';fpapYk; m';fPfhpf;fg;gl;l yhhp ouhd;!;nghh;l;!; tptuk; t';fpapy; cs;sJ/ mt;thW m';fPfhuk; bra;ag;glhj yhhpfspy; ruf;Ffs; brd;whYk; t';fp o!;ft[z;l; bra;JbfhLg;gJ cz;L/"
P.W.14 - Jegannathan, another Manager of Indian Bank has also stated the very same thing. His evidence is to the effect that a list of approved transporters was provided to bank and the bank had a right to insist upon sending the goods through an approved transporter for discounting the bill, thereby meaning that it was not mandatory for the party enjoying the bill discounting facility to send the consignment through an approved transporter when not insisted upon by the bank. P.W.21-Nallusamy, the then Manager of Indian Bank, Pollachi branch during the relevant period, has also admitted that though such a list was available with the bank, the same was not provided to M/s.Aliyar Paper Mills Private Limited. It is also his admission that during 1985-86, as many as 113 bills were discounted for the consignments sent through M/s.Cargo Movers of India and out of the said 113 bills, payments regarding 13 bills alone were not made by the consignees.
33. An overall consideration of the evidence discussed above will show that the bankers were having a list of approved transport operators for their convenience; that despite having such a list it was not mandatory for the bill discounting parties to send the goods only through approved transporters unless the bank insisted upon doing so and that in practice, Indian Bank used to allow discounting of bills for the consignments sent through un-approved transporters also. That is the reason why more than 100 bills for consignments sent through M/s.Cargo Movers of India were allowed to be discounted with the Indian Bank, Pollachi branch and the same was the practice of the bank as evidenced by the testimonies of P.W.9 and P.W.14. It is also obvious from evidence that M/s.Cargo Movers of India was not one of such approved transport operators found in the list provided to the branches of Indian Bank. As such, there was no necessity to forge/fabricate Lorry Receipts in the name of M/s.Cargo Movers of India for the purpose of discounting the bills relating to the consignments made to the dealers of M/s.Aliyar Paper Mills Private Limited.
34. In the foregoing discussions, we have seen that M/s.Cargo Movers of India was not a transport operator, whose name was found in the list of approved transporters and hence there was no need for forging/fabricating Lorry Receipts in its name for the purpose of discounting the bills relating to consignments sent to the dealers of M/s.Aliyar Paper Mills Private Limited. However, it has to be considered whether the Lorry Receipts could have been forged/fabricated on the erroneous assumption that M/s.Cargo Movers of India was one of the approved transporters. In order to show that the Lorry Receipts issued in the name of M/s.Cargo Movers of India in respect of 13 consignments concerned in this case were not the receipts issued by the said transport operator and on the other hand they had been forged/fabricated by the concerned accused persons, the prosecution has chosen to examine P.W.5-Gopal Singh Ahuja. P.W.5 Gopal Singh Ahuja is said to be the Manager of M/s.Cargo Movers of India having its office at Calcutta (now Kolkata). According to his testimony, the same was a proprietary concern of which Mr.Manohar Lal Dutt was the Proprietor. However, during the course of the evidence, he would plead absence of knowledge as to whether the said transport concern, did have any branch office outside Kolkata. In the light of the above said testimony of P.W.5-Gopal Singh Ahuja, his further assertion that the said company had no branch at Pollachi and that the goods under the Consignment Notes concerned in this case were not transported through M/s.Cargo Movers of India from Pollachi to Chennai and other places in Tamil Nadu in the year 1985-86, cannot be given much credence, as the said assertion goes contra to his earlier statement in his testimony itself pleading absence of knowledge as to whether the said transport did have any branch office outside Kolkata. Through P.W.5, Ex.P99 series have been marked by the prosecution. Ex.P99 series are not Consignment Notes actually issued by the transport operator in respect of any consignment. They have been produced as sample Lorry Receipts used by M/s.Cargo Movers of India functioning at Kolkata. It shall be pertinent to note that the words and figures "CAC-241" have been printed in the said documents alone. On the reverse side of the said documents, the following particulars have also been found printed:- "served and place of destination offices". Ex.P100 series have been produced as unused Receipt Books. Tamil Nadu is shown as one of such places wherein, presence of destination offices is shown in the sample Lorry Receipts. The places of main branches have also been found printed on the reverse side of the Lorry Receipts and "Madras" is one of such places having its main branch offices.
35. One Gopinath has been examined as P.W.6 to substantiate the case of the prosecution that M/s.Cargo Movers of India does not have any branch office at any place in Tamil Nadu. A notarised deed of Power of Attorney appointing P.W.6 - Gopinath as power agent of the proprietor of M/s.Cargo Movers of India has been produced and marked as Ex.P101. It is the evidence of P.W.6 Gopinath that he was the person in-charge of the office of a transport operator called "East Coast Roadways" functioning at No.5, New Street, Mannadi, Chennai and that the said transport operator East Coast Roadways was a subsidiary concern of M/s.Cargo Movers of India functioning in Kolkata. It is also his evidence that he is employed in the East Coast Roadways, Chennai from 1979. The notarized deed of Power of Attorney dated 18.01.1985 has been produced and marked as Ex.P101 to show that P.W.6 was appointed as power agent of the proprietor of M/s.Cargo Movers of India. However, he would state that to his knowledge there was no branch office of M/s.Cargo Movers of India at Chennai from the year 1977. The said evidence is to the effect that even for a period of two years anterior to his joining the services of East Coast Roadways, he had knowledge that M/s.Cargo Movers of India did not have any branch in Chennai. The crux of the evidence of P.W.6 Gopinath is that in Chennai, there is no branch office of M/s.Cargo Movers of India and that East Coast Roadways of which P.W.6 was the person in-charge of was a subsidiary concern of M/s.Cargo Movers of India. The said testimony of P.W.6 does not instill confidence as it is quite contrary to the documentary evidence, namely Ex.P99 series in which "Madras" (at present Chennai) has also been shown as one of the places wherein M/s.Cargo Movers of India did have its main branches.
36. It is also pertinent to note that the prosecution case itself is that the goods covered by the 13 consignments concerned in this case were not sent through the vehicles of Cargo Movers of India and in fact they were sent to the consignees through another transporter. A complaint allegedly lodged by P.W.6-Gopinath with the Assistant Commissioner of Police (Crimes), Chennai on 23.03.1985 was to the effect that they came to know that some other persons had printed the name of M/s.Cargo Movers of India and also their Code Number "CAC-241" in order to cheat traders and banks. Ex.P102 and Ex.P103 have been produced as copies of the said complaint and the first information report registered based on the said complaint dated 23.03.1985. It is seen from Ex.P103 that a case was registered on the file of Crime Branch, General Section, Egmore, Madras-8 in Cr.No.191/85. But, no official relating to the registration and investigation of the said case has been examined. It has not been clarified as to what happened to the said case. Only along with the records of the said case, Ex.P99 series as sample records, were produced to the Investigating Officer in the case on hand. According to P.W.6 Gopinath, the Lorry Receipts produced by M/s.Aliyar Paper Mills Private Limited to the bank were different from the sample receipts produced as Ex.P99. But, it is obvious that in none of the disputed Lorry Receipts, code number indicating the approval of the Indian Bank Association is found printed and on the other hand, in the sample receipts produced as Ex.P99, code number "CAC-241" is found printed. The fact that no code number is found printed in the disputed receipts will be detrimental to the contention of P.W.6 that some other persons were using bogus receipts on which the code number of M/s.Cargo Movers of India was printed. It shall also be pertinent to note that though the code number "CAC-241" is found printed in the sample receipts produced as Ex.P99, the name of M/s.Cargo Movers of India, Calcutta is not found in Ex.P104, the list of transporters approved by Indian Bank Association. The mere fact that some difference between the sample receipts produced as Ex.P99 series and the disputed Lorry Receipts are found, shall not be enough to arrive at a conclusion that the disputed Lorry Receipts were forged/fabricated for the purpose of cheating Indian Bank. As pointed out supra, the very oral testimony of P.W.6 that M/s.Cargo Movers of India did not have any branch office in Chennai (formerly Madras) is against the admitted document, namely Ex.P99 series wherein Madras is also quoted as one of the places of its main branch offices.
37. There is no document to prove that there was any written contract between M/s.Aliyar Paper Mills Private Limited and the Indian Bank that the Bill Purchase and Cash Credit facility were extended on condition that goods should be transported only through one of the approved transporters. It is also not the case of the prosecution that the goods covered by the 13 disputed consignment Notes were never despatched and bills were falsely prepared showing as if they were sent. On the other hand, even in the Final Report, it has been clearly stated that all those goods were sent to the consignees concerned. If the above discrepancies pointed out supra in the evidence of P.Ws.5 and 6 are considered in background of the above said facts and allegations, this court shall have to arrive at a conclusion that the disputed Lorry Receipts namely Exs.P17, P20, P25, P29, P33, P37, P41, P45, P49, P53, P57, P61 and P65 have not been proved to be forged/fabricated. M/s.Cargo Movers of India itself could have undertaken the job of transporting goods using the vehicles belonging to other transporters and the goods in respect of the consignments regarding which the problem has arisen might have been delivered without insisting upon production of proof of payment of the bill amount to the bank. The same could be the reason for M/s.Cargo Movers of India coming forward with a plea that some other transport operators were using the name of M/s.Cargo Movers of India and its code number, whereas it has not been proved that M/s.Cargo Movers of India was included in the list of transporters approved by Indian Bank Association with the said code number. A reasonable doubt in this regard has arisen and the benefit of such doubt should go to the accused persons. Therefore, this court comes to the conclusion that the prosecution has miserably failed to prove, beyond reasonable doubt that the disputed Lorry Receipt Nos.1957, 1958, 1959, 1960, 1961, 2129, 2130, 1980, 2144, 2145, 2007, 2008 and 2009 were forged/fabricated and that the contrary finding recorded by the trial court in this regard regarding charge No.4 is liable to be interfered with and reversed.
38. In the foregoing discussions, we have seen that the prosecution failed in its attempt to prove the disputed Lorry Receipts relating to 13 consignments concerned in this case were forged and therefore, charge No.4 framed for an offence punishable under Section 468 IPC, was not substantiated. The same proves to be a demolition of the foundation for the fifth charge, namely the charge for the offence under Section 471 r/w 468 IPC. In the light of the failure to prove the charge under Section 468 IPC, the charge under Section 471 r/w 468 IPC shall be a building without a basement. Hence, this court comes to the conclusion that the trial court's finding that the accused were guilty of the offence under Section 471 r/w 468 IPC also deserves to be reversed and that the appellants are entitled to be acquitted in respect of the said charge also.
39. Since it has been held that charge Nos.4 and 5 have not been proved and the appellants are entitled to be acquitted of the said charges, in the absence of any direct evidence, there shall be no material to prove the alleged conspiracy to find the appellants guilty of the offence under Section 120-B r/w 468 IPC, for which charge No.3 was framed. Hence the finding of the trial court holding them guilty of the said offence under charge No.3 also is defective, infirm and is liable to be set aside and reversed and consequently, the appellants are entitled to be acquitted in respect of the charge No.3 also.
40. Next, Charge No.2 framed for an offence under Section 420 IPC shall be taken up for consideration. At the cost of repetition, it is again pointed out that it is not the case of the prosecution that bogus bills were prepared without despatching the consignments and such bills were discounted with the Indian Bank and that thus the Indian Bank was cheated in respect of the 13 consignments concerned in this case. On the other hand, it is clearly admitted that the goods in respect of all the bills discounted with the bank were sent to the consignees concerned, but it is the contention of the prosecution that the bills were discounted producing forged Lorry Receipts as if the goods were sent through M/s.Cargo Movers of India, whereas actually they were sent directly to the consignees. In the discussions relating to charge Nos.3 to 5, this court has held that the disputed Lorry Receipts were not proved to be forged or fabricated. Therefore, the contention of the prosecution that the Indian Bank was cheated by making it purchase the bills believing the consignment concerning bills to be despatched through M/s.Cargo Movers of India, while actually it was not so sent through M/s.Cargo Movers of India, deserves to be rejected as not substantiated.
41. However, it is true that the amount paid by the bank by allowing M/s.Aliyar Paper Mills Private Limited to discount 13 bills relating to the consignments concerned in this case was not collected from the consignees concerned and M/s.Aliyar Paper Mills Private Limited (A4) also did not make payment of the same despite issuance of notice. But, whether the same would amount to an offence of cheating punishable under Section 420 IPC, is to be considered. P.W.1 - Subbiah, P.W.4 - Muthuraman, P.W.15 - Durairajan, who are running Meenakshi Paper Stores in Salem, Meyyappa Paper Stores in Chennai and Vimala Trading Company in Kumbakonam, respectively, have been examined on the side of the prosecution, perhaps for the purpose of proving direct despatch of the consignments. Copies of five invoices relating to the goods sent to Meenakshi Paper Stores have been produced and marked as Ex.P1 series. A consideration of the testimony of P.W.1 will show that P.W.1 was able to take delivery of finished paper goods sent to his paper stores with the help of copies of the consignment papers from the lorry office without making payment of the bill amount in response to the call letters issued by the bank. The originals of invoices corresponding to Ex.P1 series have been produced as Ex.P7 series. Xerox copies of the Lorry Receipts with which P.W.1 was able to get delivery of the goods have been marked as Exs.P37, P41, P45, P49 and P53. The carbon copies of the Lorry Receipts relating to the said consignments have been produced in Ex.P8 series. P.W.1 has admitted that in respect of the said consignments, he received intimations from the Salem branch of State Bank of Travancore calling upon him to make payment of the bill amount. The said demand notices have been marked as Ex.P9 series. However, it is obvious from his evidence that since he was able to get delivery of the goods, he did not make payment as per the demand made in Ex.P9 demand notices. On the other hand, pointing out that he had made dealership deposits with M/s.Aliyar Paper Mills Private Limited under Ex.P10 series, he wanted the Mill to adjust the cost of the goods sent to him by the Mill from the Dealership deposit, copies of which have been marked as Exs.P11 and Ex.P12. After adjusting the dealership deposit towards the cost of the goods supplied, a sum of Rs.11,800/- was sought to be paid by way of two demand drafts along with a covering letter, a copy of which has been marked as Ex.P13. But M/s.Aliyar Paper Mills Private Limited refused to accept the same and returned the demand drafts along with a covering letter marked as Ex.P14. Thereafter, P.W.1, as seen from his evidence, encashed those demand drafts. It is his further evidence that they had to adjust the bill amount against the dealership deposit in view of a recession in the business of M/s.Aliyar Paper Mills Private Limited and closure of the mill. A close scrutiny of the evidence of P.W.1 will show that the usual practice was to send the consignment papers through the bank and the consignee would make payment to the bank, get the consignment papers with the endorsement evidencing payment and then with the Lorry Receipts received from the bank would claim and take delivery of the goods from the transport office. It is also the admission of P.W.1 that he received intimation from the Salem branch of State Bank of Travancore regarding the consignments. When that is so, it is a mystery as to how he was able to take delivery of the goods from the transport office without making payment of the cost of the goods. Either the transporter might have effected delivery without getting proof of payment of the bill amount to the bank or the bank might have allowed the consignee to take the consignment papers on the promise to make payment of the bill amount after taking delivery of goods. Under such circumstances, it cannot be said that either M/s.Aliyar Paper Mills Private Limited or its officials committed cheating on the Indian Bank. Nowhere in his evidence, P.W.1 chose to state that the goods were not transported through M/s.Cargo Movers of India and they were sent through some other transport operator. The said aspect was not elicited from him by the Public Prosecutor.
42. Similar is the evidence of P.W.4, who was running Meyyappa Paper Stores at No.55, Anderson Street, Chennai. The invoices relating to the consignments made to Meyyappa Paper Stores have been marked as Ex.P15 and Ex.P18. The intimations sent by the bank to Meyyappa Paper Stores have been marked as Exs.P21 and 22. Lorry Receipts relating to the consignments have been marked as Exs.P17 and P20. Goods had been sent to him under three invoices bearing Invoice Nos.0120/85-86, 0123/85-86 and 0124/85-86. From the evidence it is seen that he took delivery of the goods covered by Invoice No.0124/85-86 alone and refused to take delivery of the goods covered by the other two invoices. It is also obvious from his evidence that though he had received intimations from the bank regarding the said consignments, he did not make payment of the invoice amount in respect of the goods sent under Invoice No.0124/85-86 which alone he chose to accept to take delivery. It is also his evidence that since there was a huge amount due from the Paper Mill, he did not make payment for the goods covered by the said invoice. It is also his evidence that he was able to take delivery of the goods covered by invoice No.0124/85-86 based on the documents that were available with the driver of the lorry through which the goods were sent. Nowhere in his evidence, P.W.4 has stated that the goods were not sent through M/s.Cargo Movers of India or were sent through any other transport operator. The name of the transport operator has also not been elicited from him. There is also evidence to the effect that the goods sent to the consignees, which were not taken delivery by the said consignees had to be redirected to other consignees.
43. Similar is the tenor of the evidence of P.W.15, who was running a paper stores in the name of Vimala Trading Company at Kumbakonam. The copies of concerned Lorry Rceipts are Exs.P25, 29 and 33. He has clearly stated in his evidence that the papers were delivered to him through M/s.Cargo Movers of India and that the driver of the lorry effected delivery and took his signature for having received the consignment. It is also his evidence that he paid only the freight charge to the lorry driver and the cost of the paper was not paid by him either directly to the Mill or through the bank and that he did not make payment since there was an advance available with the Paper mill to the tune of Rs.1,54,000/- and the cost of the papers sent were Rs.22,782/- + Rs.57,000/-. It is quite obvious from the evidence of the above said persons running the paper stores to which goods were sent under the Consignment Notes concerned in this case, were able to receive the goods from the transport office without making payment of the cost of the goods shown in the invoices. There is no evidence to show that the cost of the goods were directly paid to M/s.Aliyar Paper Mills Private Limited for effecting delivery of the goods to the consignees without payment being made to the bank.
44. It is also admitted on the side of the prosecution that M/s.Aliyar Paper Mills Private Limited had been closed at the instance of Indian Bank, Pollachi Branch. The same is also evident from Ex.P88 and 89 letters addressed by the Managing Director of M/s.Aliyar Paper Mills Private Limited (A4) to the advocate of the Indian Bank. Only under those circumstances, the consignees under the consignments concerned in this case failed to make payment of the bill amounts and chose to ask M/s.Aliyar Paper Mills Private Limited to adjust deposits towards the bill amount. Under such circumstances, it is not possible to accept the contention of the prosecution that Indian Bank, Pollachi branch was cheated by the appellants 1 and 2 in Crl.A.No.550/1999. No intention to cause wrongful loss to the bank or wrongful gain to the concerned accused has been established. Perhaps the bank officials or the transport operators or the consignees might have committed breach of contractual obligation or breach of trust. The said inference shall be strengthened by the fact that initially M/s.Cargo Movers of India was shown as the second accused in the case registered under Ex.P102. How the said transport operator was exonerated and came to be cited as prosecution witnesses, has not been explained. The consignees were also not made accused persons. On the other hand, they were examined as witnesses on the side of the prosecution. It is also pertinent to note that the Investigating Officer, P.W.25 has admitted that the bank officials were also arraigned as accused in Cr.No.2/86 registered on the file of Crime Branch, Coimbatore and that was the reason why the investigation of the case was handed over to the Central Bureau of Investigation. But, however, no bank official has been charge-sheeted. Under what circumstances and on what grounds they were exonerated is not known. If all these aspects are taken into consideration, Charge No.2 for an offence punishable under Section 420 IPC and the persons accused in respect of charge No.2 shall be entitled to acquittal in respect of the said charge also. Therefore, the finding of the court below that Charge No.2 alleging commission of an offence punishable under Section 420 IPC by the appellants in Crl.A.No.550/1999 (A1 since deceased and A2) was substantiated, is defective, infirm and hence liable to be interfered with and reversed.
45. As pointed out supra, there is no direct evidence for the proof of the alleged conspiracy among the appellants and the accused in the split up case to cheat the Indian Bank, for which charge No.1 has been framed. The only circumstantial evidence based on which the said charge is sought to be substantiated in the alleged commission of cheating for which charge No.2 has been framed. We have seen that the offence of cheating for which Charge No.2 was framed, has not been proved beyond reasonable doubt and that appellants 1 and 2 in Crl.A.No.550/1999 are entitled to be acquitted of the said charge also. In view of the same, the necessary conclusion that can be arrived at in respect of Charge No.1 is that Charge No.1 is also not proved and that all the appellants in both the appeals are entitled to be acquitted of the offences of 120-B r/w 420 IPC also. The finding of the court below holding the appellants guilty of the offence under Section 120-B r/w 420 IPC, in respect of which Charge No.1 has been framed, is defective and liable to be reversed and the appellants 1 and 2 in Crl.A.No.550/1999 are entitled to be acquitted of the said charge also.
46. For all the reasons stated above, this court comes to the conclusion that the conviction of the appellants in both the appeals recorded by the trial court and the consequential punishment imposed, are not based on proper appreciation of evidence and that the judgment of the court below convicting the appellants in respect of all the five charges is defective, infirm and cannot be sustained; that the said judgment convicting and sentencing the appellants for offences punishable under sections 120-B r/w 420 IPC, 420 IPC, 120-B r/w 468 IPC, 468 IPC and 471 r/w 468 IPC are liable to be set aside and the appellants are entitled to be acquitted of all the offences with which they stood charged.
47. In the result, both the appeals, Criminal Appeal Nos.511/1999 and 550/1999, are allowed. The judgment of conviction and the order of sentence imposing punishments on the appellants (A1 to A4) are set aside and the appellants are acquitted of all the offences with which they stood charged. The bail bonds executed by them shall stand discharged. Fine amount, if any, paid shall be ordered to be refunded.
asr/-
To
1) The First Additional Sessions Judge and Chief Judicial Magistrate, Coimbatore
2) The Deputy Superintendent of Police C.B.I. Chennai (Rc.No.10/S/90)
3) The Special Public Prosecutor for CBI Cases, High Court, Madras 104