Sri N Shivanna Vs State by

SRI. N. SHIVANNA S/O. NANAJUNDAIAH, AGED ABOUT 58 YEARS, THE THEN MANAGER, CANARA BANK, CORPORATE CONSUMER FINANCE BRANCH, INFANTRY ROAD, BANGALORE, RESIDING AT #254, 5^TH MAIN, 5^TH CROSS, GANGANAGAR, BANGALORE.

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…APPELLANT

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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(BY SRI. R. SHAILESH KUMAR, ADVOCATE)

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AND:

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STATE BY CENTRAL BUREAU OF INVESTIGATION/ACB, GANGANAGAR, BANGALORE.

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…RESPONDENT

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(BY SRI. P. PRASANNA KUMAR, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 24/8/2012 PASSED IN SPL. C.C.

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No.195/2009 BY THE XLVII ADDL. CITY CIVIL & SESSIONS JUDGE AND SPL. JUDGE FOR CBI CASES, BANGALORE - CONVICTING THE APPELLANT/ ACCUSED-1 FOR THE OFFENCES P/U/S.120(b) & 420 OF IPC AND SEC.13(1)(d) & 13(2) OF PREVENTION OF CORRUPTION ACT.

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IN CRL.A NO. 1154/2012

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BETWEEN:

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SRI. SHIVANANJAIAH AGED ABOUT 64 YEARS, S/O. BHOJAPPA, THE THEN OFFICER, ADVANCES DEPT., CANARA BANK, CORPORATE CONSUMER FINANCE BRANCH, INFANTRY ROAD, BANGALORE.

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R/AT NO.13, FIRST 'D' MAIN, SHIVANAGAR, RAJAJINAGAR, BANGALORE-560 010

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...APPELLANT

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(BY SRI. C.H. JADHAV, SENIOR COUNSEL A/W SMT. M.GAYATHRI RAMASWAMY, FOR SRI. V.K. NARAYANA SWAMY, ADVOCATE)

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AND:

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STATE BY CENTRAL BUREAU OF INVESTIGATION ACB, GANGA NAGAR, BELLARY ROAD, BANGALORE.

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...RESPONDENT

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(BY SRI. P. PRASANNA KUMAR, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF

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CONVICTION DATED 24/8/2012 IN SPL. (CORRUPTION) CASE No.195/2009 BY THE XLVII ADDL. CITY CIVIL & SESSIONS JUDGE AND SPL. JUDGE FOR CBI CASES, BANGALORE - CONVICTING THE APPELLANT/ ACCUSED-2 FOR OFFENCES P/U/S.120(B) & 420 OF IPC AND SEC.13(1)(d) P/U/S.13(2) OF PREVENTION OF CORRUPTION ACT, SENTENCING THE APPELLANT/ACCUSED-2 TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF TWO YEARS AND TO PAY FINE OF Rs.50,000/-, IDSI FOR ONE YEAR, FOR THE OFFENCE P/U/S.120(B) OF IPC, ETC.

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THESE CRIMINAL APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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The appellants herein (accused Nos.1 and 2) have been convicted for the offences punishable under Sections 120B and 420 of the Indian Penal Code, 1860 (for brevity "IPC") and under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter for brevity referred to as "P.C. Act") in Spl.C.C.No.195/2009 and sentenced to undergo simple imprisonment for a period of two years for the offence punishable under Section 120B of IPC, two

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years for the offence under Section 420 of IPC and one

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year imprisonment for the offence under Section 13(1)(d) read with Section 13(2) of P.C. Act, apart from imposing fine of Rs.50,000/- each for the offence under Section 120B of IPC, Rs.50,000/- each for the offence under Section 420 of IPC and Rs.25,000/- each for the offence under Section 13(1)(d) read with Section 13(2) of P.C. Act (totally Rs.1,25,000/- to each of accused No.1 and accused No.2) with default sentence for each of the offences.

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Facts which are most essential for disposal of

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the present appeals as per the charge sheet materials are as under:

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2.1. One Sri.S.S. Kamath, Deputy General

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Manager, Canara Bank, Disciplinary Action Cell, Circle Office, Bangalore, lodged a complaint with the CBI, contending that there were irregularities and illegalities committed in the disbursement of 'CAN Budget Loans'

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at Canara Bank, Corporate Consumer Finance Branch, Bangalore.

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2.2. The complaint averments would reveal that, accused No.1 - N. Shivanna, working as Branch Manager, Canara Bank, Corporate Consumer Finance Branch (CCFB), Infantry Road, Bangalore, conspired with accused No.2 - N. Shivananjaiah, who was working as Officer (Advances) in the said Branch and with other accused persons, during the period from 17.08.2000 to 13.07.2004. One K. Vasudevan Namboothiri (accused No.3) was working as Assistant, Grade II Clerk, M/s. Food Corporation of India (FCI), Buffer Storage Complex, Whitefield, Bangalore and N. Eshwar (accused No.4), was a labourer in FCI. Pursuant to said conspiracy, there were 95 loans which were disbursed under the 'CAN Budget Loan Scheme' in the names of employees of M/s. FCI, having their office in Buffer Storage Complex, Whitefield, Bangalore.

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2.3. Accused No.4 - N. Eshwar and others

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submitted 95 loan applications in the name of the employees of FCI and those applications were forged and the said applications were supported by inflated salary slips of the employees of FCI. Accused No.2 - Shivananjaiah appraised those loan applications. As a result, there was a sanction of Rs.117.79 lakhs by accused No.1 - N. Shivanna on six different dates. Loan proceeds were disbursed to the employees of FCI by way of Demand Drafts and thereafter, those Demand Drafts were encashed through M/s. Nanjundeshwara Credit Co-operative Society,

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Yeswanthpur, Bangalore, not by employees of FCI.

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2.4. Accused No.5 - B.T. Sathyanarayana, who

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was running a Hotel, opposite to M/s FCI, had come into contact with large number of daily wage employees/ labourers and K. Vasudevan Namboothiri (accused No.3) and Eshwar (accused No.4) who was working as Ancillary Labourer in FCI were responsible

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for preparing the fake salary certificates of the alleged employees of the FCI and they joined their hands with accused Nos.1 and 2, in getting the loan disbursed.

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2.5. The details of the loan to the tune of Rs.117.79 lakhs on different dates during the period from 24.12.2003 to 12.03.2004 are extracted herein

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below:

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Sl. No.	Loan Account No.	Date of Sanction	No.of Loans	Total Amount (in lakhs)
1	A/c.No.13936 to 13962	24.12.2003	27	27.55
2	A/c.No.14082 to 14111	14.01.2004	30	34.82
3	A/c.No.14171 to 14182	06.02.2004	12	17.45
4	A/c.No.14237 to 14249	23.02.2004	13	18.86
5	A/c.No.14252 to 14256	25.02.2004	05	07.50
6	A/c.No.14290 to 14297	12.03.2004	08	11.61
		Total:	95	117.70

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2.6. It is also found from the material on record

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that one Jagadeesh S/o. Chikkathimme Gowda and five other applicants were terminated from the services of

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FCI, during the period from 31.08.2000 to 21.10.2002.

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Further, loans were also sanctioned to said Jagadeesh and five other applicants during the period from 14.01.2004 to 25.02.2004.

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2.7. Likewise, one Munivenkatappa, a resident of

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Bavarahalli was absent on medical grounds and he did not draw wages for the month of November 2003, but loan application was enclosed with wage slip of Munivenkatappa for the month of November 2003. Loan of Rs.1.26 lakhs was also sanctioned against the name of Munivenkatappa.

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2.8. All these misdeeds were inquired into by the higher officials of the Canara Bank and thereafter, the complaint came to be lodged with CBI.

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2.9. Based on the complaint, the investigating officer of the CBI investigated the matter in detail and

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on consideration of the material collected by the charge-sheet against the appellants herein and accused No.3 – Vasudevan Namboothiri, accused No.4 – N.

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Eshwar, accused and accused No.5 –

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B.T.Sathyanarayana, who were running the hotel in front of the FCI.

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2.10. Learned Trial Judge secured the presence

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of all the five accused persons after taking cognizance of the offences alleged against the appellants herein.

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2.11. During the pendency of the case, accused No.3 died and therefore case against accused No.3 stood abated. Insofar as accused No.4 – N. Eshwar is concerned, he filed an application to stand as an approver to the case of the prosecution and therefore he was granted pardon.

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Accused Nos.1, 2 and 5 contested the

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matter by denying the charges leveled against them. In order to bring home the guilt of the accused, prosecution proceeded to examine 71 witnesses as PW-

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1 to PW-71. Prosecution also placed on record voluminous documentary evidence, which were exhibited and marked as Exs.P1 to P144.

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On behalf of the defence, three witnesses by

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name H.N.Srinivas, V.R.Gururaj Bhat and Sudhakar were examined as DW-1 to DW-3. Further, on behalf of the defence, 10 documents were marked as Exs.D1 to D10.

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On conclusion of recording of prosecution evidence, learned Sessions Judge proceeded to record the accused statement as is contemplated under Section 313 of the Cr.P.C., wherein accused 1, 2 and 5 denied all the incriminatory circumstances put to them which were found in the case of the prosecution and they have examined the witnesses on their behalf as aforesaid.

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Subsequent thereto, learned Trial Judge heard the arguments of the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record by the prosecution in a cumulative manner, convicted accused Nos.1, 2 and 5 and sentenced as referred to supra.

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So far as accused No.5 is concerned, no

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discussion is made in this appeal, as his case is to be dealt separately in his separate appeal as he was not prosecuting the appeal diligently.

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Being aggrieved by the sentence, accused Nos.1 and 2 who are public servants, namely, Manager and Officer in Canara Bank, CCFB, Infantry Road, Bengaluru, have questioned the validity of the impugned judgment in these two appeals which were filed separately.

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Sri. C. H. Jadhav, learned Senior Counsel and Smt. Gayathri Ramaswamy, learned counsel representing the appellant in Crl.A.No.1154/2012, together contended that the learned Trial Judge has not properly appreciated the material evidence on record while recording the order of conviction resulting in miscarriage of justice and sought for allowing the appeals.

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They would further contend that the role of

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accused Nos.1 and 2 was not to find out the genuineness of the salary certificates that were produced by the prospective applicants and they believed that the documents, especially the salary / wage slips filed along with 95 applications as genuine as it did bear the necessary seal and signature of the FCI. Therefore, in the usual course, they have sanctioned the loan which has been blown out of proportion by the prosecuting agency resulting in miscarriage of justice and sought for allowing the appeals.

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They would also contend that the material evidence on record would go to show that the case of the prosecution predominantly stands on the approver evidence of accused No.4 – N. Eshwar who himself is a person who actually concocted the salary/wage slips of the FCI. Therefore, his evidence should not have been made as the basis for recording an order of conviction

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insofar as the appellants are concerned and sought for allowing the appeals.

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It is their further contention that accused No.5 being the person who had the hotel in front of the FCI hatched a conspiracy with accused Nos.3 and 4 and they represented to the Bank that the applications and the documents filed along with the applications are genuine documents which on first look did not create any doubt in the mind of accused No.2 who has appraised the loan applications and when once the loan applications are in order, disbursement of the loan by accused No.1 was in the usual course and at the most there can be only an irregularity and not illegality, and thus sought for allowing the appeal.

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Alternatively, Sri. C. H. Jadhav and Smt. Gayathri would contend that the appellants have been dismissed from the service long back and at this distance of time, if the appellants are also directed to undergo imprisonment as ordered by the learned Trial

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Judge, it would act harsh on them, especially, taking note of the advanced age of the appellants herein.

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They would also submit that to quell the apprehensions expressed on behalf of the prosecution during the course of arguments that the appellants may claim the financial benefits if they are acquitted for the offences under Section 13(1)(d) r/w 13(2) of the PC Act, the affidavits of undertaking are filed, which reads as under:

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In Crl.A.No.1154/2012

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"I Shivananjaiah s/o Bojappa, aged about 76 years, the then Officer, Advance Department, Canara Bank, Corporate Consumer Finance Branch Bank, Bangalore residing at No 13, 1st D Main Road, Shivanagar, BANGALORE, do Hereby, Solemnly Affirm and State as follows:

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1. That I am the appellant in the above case. I have filed this appeal against the Judgment of Conviction and order in Special Case No. 195/2009 on the file of the XLVII Additional Session Judge, CBI, Bangalore convicting me for the offences punishable offence sections 120 B IPC, 420 IPC and under section 13(1)(d) punishable under section 13(2) of Prevention of Corruption Act and sentencing me to undergo, SI for a period of 2 years and pay a fine of Rs. 50,000/- and IDSI for 1 year; (for the offence p/u S. 120-B IPC), SI for a period of 2 years and pay fine of Rs.50,000/- IDSI for 1 year; for the offence p/u S. 420 IPC, SI for a

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period of 1 year ad to pay a fine of Rs.25,000/- IDSI for one year for the offence punishable under section 13(2) of the P.C Act in the judgment dated 24th August 2012.

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2. I, the appellant humbly submit that as on the date of inception of the case 1 was working as Manager, Advances and I attended superannuation on 26th February 2009. I was Compulsorily Retired on 24th February 2009.

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3. As per the Canara Bank Employees Regulation 1995, my basic pension was Rs.13,000/-. I was paid my pension deducting 1/3rd of my remaining pension amount (1/3rd for the year from 2008 to 2024 is to the tune of sum of Rs.17,65,760 and Nil Paisa is with the Bank. I humbly state that I am prepared to forego my future pension. (I have furnished herewith the details of the pensions I have received.)

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4. I am now aged about 76 years suffering from Acute Right Middle cerebral Artery and posterior cerebral Artery Territory Infarct, (Paralysis on account of Brain Hemorrhage) and now I am under treatment for the said ailment in the Manipal Hospital, Yeshwanthpur, Bangalore. I am immobalised and under the shelter of wheelchair. I have been residing along with my wife, other than my pension I have no other source of income. I incur a sum of Rs.10,000 to 12000 towards my medical expenses, per month.

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5. As per the calculations, the deducted amount of pension for the year 2010-2015 is sum of Rs.4,29,093/and for the year 2015-2020 Rs.5,61,068 /- and for the year 2020-2024 Rs.7,75,554/-. (Table of deduction of pension is herewith annexed for the kind perusal of this Hon'ble Court."

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In Crl.A.No.1047/2012

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"I Sri.N.Shivanna, S/o.Sri. Nanjundaiah, Aged about 72 years, R/o.No.103, 1" Floor, R.G.P.Apartment, CQAL Layout, Sahakaranagar,

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Bangalore-92, do Hereby, Solemnly Affirm and State as follows:

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1. I submit that I am the appellant in the above case. I have filed this appeal against the Judgment of Conviction and order in Special Case No. 195/2009 on the file of the XLVII Additional Session Judge, CBI, Bangalore convicting me for the offences punishable offence sections 120 B IPC, 420 IPC and under section 13(1)(d) punishable under section 13(2) of Prevention of Corruption Act and sentencing me to undergo. SI for a period of 2 years and pay a fine of Rs. 50,000/- and IDSI for 1 year; (for the offence p/u S. 120-B IPC) SI for a period of 2 years and pay fine of Rs.50,000/- IDSI for 1 year; for the offence p/u S. 420 IPC SI for a period of 1 year ad to pay a fine of Rs.25,000/- IDSI for one year for the offence punishable under section 13(2) of the P.C Act in the judgment dated 24th August 2012.

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2. I submit that as on the date of inception of the case I was working as Branch Manager and I was asked to retire compulsorily during December 2012, even before attaining the age of superannuation which was due in March 2014.

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3. I submit that as per the Canara Bank Employees Regulation 1995, my basic pension was paid at 1/3rd and accordingly I have been deducted Rs.12,146/- per month from my pension during the period from 01/01/2013 to 31/01/2025 for a period of 145 months and accordingly I have lost a sum of Rs.17,61,170/-.

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4. I submit that similarly I was suspended for a period of 28 months and only 50% of my salary was paid and accordingly a sum of Rs.17,620/- was deducted for the period from March 2007 to June 2009 amounting to Rs.4,93,760/-.

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5 I submit that similarly after the departmental enquiry I was demoted from Scale 3 to Scale 1 and

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accordingly for the period July 2009 to December 2012 I lost a sum of Rs.23,852/- (Rs.53,736/- per month less Officers Pay Scale for August 2009 amounting to Rs.29,884/-) in all a sum of Rs.9,77,932/-.

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6. 1 submit that similarly as I retired compulsorily before the age of superannuation I lost service of 15 months and accordingly on a monthly salary of Rs.49,682/-I lost a sum of Rs.7,45,230/-.

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7. I submit that in all I have lost a sum of Rs.39,77,692/- due to the conviction order passed by the Court Below as well as due to the orders passed in the Departmental Enquiry and apart from I have not been considered for any promotions or increase in monetary benefits.

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8. I am now aged about 73 years suffering from Hear Issues and as well as Varicose problems and I need continuous treatment amounting to a sum of Rs.15,000/- per month.

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9. I submit that I underwent Angiogram during 2012 and accordingly stent was put to me and thereafter I underwent a Byepass Surgery in 2015 which failed in a months time and accordingly I underwent another Angiogram and thereafter another stent was implanted immediately thereafter and ever since then I am on Medication for my heart issues.

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10. I submit that similarly I have varicose issues and I need to undergo surgery for my Medical Treatment."

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Based on the above affidavits, learned

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counsel for the appellants submits that this Court may set aside the offence under Section 13(1)(d) r/w 13(2)

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of the PC Act and for the remaining IPC offences since there is no minimum period of imprisonment prescribed under the statute, the sentence of imprisonment may be set aside by enhancing the fine amount reasonably.

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Per contra, Sri. Prasanna Kumar, learned counsel representing the CBI supports the impugned judgment and opposes the appeal grounds in toto .

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He would further contend that admittedly, the applications were not properly processed by accused No.2 while appraising the loan applications. Five of the persons who were dismissed from the FCI have also applied for the loan and in their names, fake salary/wage slip has been enclosed which were not properly scrutinized by accused No.2.

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Further, an applicant namely,

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Munivenkatappa, a resident of Bavarahalli was absent on medical grounds and he did not draw wages for the month of November 2003 in FCI, but despite the same, his loan application was also processed with a fake

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salary/wage slip which shows that there was an active conspiracy for that existed among accused Nos.1 to 5 resulting in huge loss to the bank and corresponding gain to the accused.

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Sri. Prasanna Kumar would also contend

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that total loss that has occurred to the Bank on account of servicing 95 loan applications of the employees of the FCI is to the tune of Rs.117.79 lakhs and therefore, no mercy can be shown to the appellants by accepting the alternate submission made on behalf of the appellants and thus sought for dismissal of the appeals in toto .

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Having heard the arguments of learned counsel for the parties in detail, this Court perused the material on record meticulously. On such perusal, the following points arise for consideration in these appeals:

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(i) Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellants for the offence

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punishable under Sections 120B, 420 of IPC and Section 13(1)(d) r/w Section 13(2) of the PC Act?

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(ii) Whether the appellants make out a case of legal infirmity and perversity in the findings recorded by the learned Trial Judge in convicting the appellants for the aforesaid offence and thus calls for interference?

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(iii) Whether the sentence needs modification?

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(iv) What Order?

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REGARDING POINT NOS.1 AND 2: In the

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cases on hand, accused No.1 being the Manager of Canara Bank, CCFB, Infantry Road, Bengaluru and accused No.2 being the Officer (Advances) of the same Bank and Branch is not in dispute. Admittedly, the said Branch was required to lend loan to the persons in the project called 'CAN Budget Loans' for housing purposes. The FCI employees were entitled to get the loans under the said Scheme. It is at that juncture, the conspiracy has begun according to the prosecution.

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Accused Nos. 1 and 2 in active collusion with accused Nos. 3 to 5 said to have sanctioned housing

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loans as against 95 applicants in the names of employees of FCI to the tune of Rs.117.79 lakhs as referred to supra. The loan applications were, admittedly, processed by accused No.2 and appraised for sanction. Based on the appraisal note made by accused No.2, accused No.1 sanctioned the loan to the tune of Rs.116.79 lakhs. On detail enquiry, it is noticed that the majority of the loan applications were accompanied by fake salary/wage slips.

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Accused No.5 had a hotel in front of the FCI. He, in active collusion with accused Nos.3 and 4, was responsible for preparing the fake salary/wage slips.

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The CBI during the course of investigation noted that Jagadeesh and five other applicants were terminated from the service of M/s. FCI during the period beginning from 31.08.2000 to 21.10.2002. However, in their names also, the applications were filed and they were appraised based on the fake salary/wage slips of Jagadeesh and five others.

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Yet another incident that has been noticed

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by the prosecution during the course of investigation is the salary slip of Munivenkatappa, resident of Bavarahalli who was absent in the month of November 2003 on medical grounds. However, his application also contained the salary slip of November 2003 and loan was sanctioned to him to the tune of Rs.1.26 lakhs.

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Likewise, the investigation agency went through each and every application and verified the veracity of the salary / wage slips accompanied with the loan applications and found that they were all fake.

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71 witnesses have been examined on behalf of the prosecution. Majority of the witnesses are the persons who actually are the employees of the FCI in whose names loans have been obtained. They have deposed before the Court that they did not apply any loan in 'CAN Budget Loans' with CCFB, Infantry Road, Bengaluru and fake salary slips belonging to them have

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been enclosed with the loan applications. Thus, the fraud that has taken place by active conspiracy of accused Nos.1 to 5 in getting the loan to the tune of Rs.117.79 lakhs in the project called 'CAN Budget Loans' of Canara Bank, CCFB, Infantry Road, Bengaluru, stands established by prosecution by placing cogent and convincing evidence on record.

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As against the same, no doubt, 3 witnesses have been examined on behalf of the accused, namely, H.N.Srinivas, Gururaj Bhat and Sudhakar. Their evidence would not efface the criminality in processing the loan applications by accused No.2, which was not even verified by the accused No.1 and public fund in the form of the project 'CAN Budget Housing' to the extent of Rs.117.79 lakhs has been parted away by accused Nos.1 and 2.

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The material on record also shows that the

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demand drafts have been issued in the behind of 95 applicants, which were actually encashed through M/s.

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Nanjundeshwara Credit Co-operative Society,

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Yeswanthpur, Bengaluru. Admittedly, none of the real employees of the FCI are the beneficiaries of the those demand drafts.

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These aspects of the matter, when viewed cumulatively, it is crystal clear that in the real names of the employees of the FCI, it is the accused Nos.3 to 5 who have concocted the salary / wage slips and were responsible for drawing of the loan in the 'CAN Budget Loans' to the tune of Rs.117.79 lakhs and misappropriated the said funds in the names of the real employees of the FCI.

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Accused No.3 having died during the pendency of the case, case against him stood abated.

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Accused No.4 – Eshwar sought for

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permission of the Court to become approver and his statement and evidence is available on record and he got the pardon from the Court.

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NC: 2025:KHC:5590 CRL.A No. 1047 of 2012 C/W CRL.A No. 1154 of 2012

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There is sufficient force in the argument put

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forth on behalf of the appellants by learned senior counsel Sri. Jadhav and Smt. Gayathri that the approver evidence is a weak piece of evidence and such evidence should not be made as basis for the purpose of convicting the other accused persons.

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However, in the case on hand, approver evidence is considered by the learned Trial Judge as corroborative evidence only. Other material evidence on record is sufficient enough to maintain the conviction of the accused for the offences under Section 120B and 420 IPC.

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However, the requisite proof for convicting accused Nos.1 and 2 for the offence under Section 13(1)(d) r/w 13(2) of the PC Act is not made available by the prosecution. More so, in the light of the principles of law enunciated by the Hon'ble Apex Court in the case of NEERAJ DUTTA VS. STATE (GOVT. OF NCT

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NC: 2025:KHC:5590 CRL.A No. 1047 of 2012 C/W CRL.A No. 1154 of 2012

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DELHI)¹ . To maintain an offence under Section 13(1)(d) r/w 13(2) of the PC Act, there must be a demand and acceptance of the illegal gratification which would ultimately result in what is called 'obtainment' and thereafter, offence under Section 13(1)(d) stands established which would be punishable under Section 13(2) of the PC Act.

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The material evidence placed on record is insufficient to establish the said aspect of the matter, even though the material evidence would go to show that there is a misuse of the official position by accused Nos.1 and 2.

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It is settled principles of law and requires no emphasis that prosecution has to travel a long distance between 'may be proved' to the 'actual proof'.

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Keeping the above principles of law in mind, when the material evidence on record is reappreciated, the prosecution is successful in

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1 (2023) 4 SCC 731

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NC: 2025:KHC:5590 CRL.A No. 1047 of 2012 C/W CRL.A No. 1154 of 2012

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establishing the existence of criminal conspiracy which is punishable under Section 120B of the IPC. View of this Court is supported by the principles of law enunciated in MOHD. KHALID VS. STATE OF WEST BENGAL² .

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So also the material evidence is sufficient enough to maintain the conviction of the appellants for the offence under Section 420 of IPC, inasmuch as there is a wrongful loss caused to the Bank and in corresponding gainful gains to the accused persons.

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But, the material evidence on record is not sufficient enough to maintain the conviction under Section 13(1)(d) r/w 13(2) of the PC Act.

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In view of the foregoing discussion, point No.1 and 2 are answered partly in the affirmative .

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REG. POINT NO.3: In view of the finding of this Court on point Nos. 1 and 2, especially acquitting

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2 (2002) 7 SCC 334

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NC: 2025:KHC:5590 CRL.A No. 1047 of 2012 C/W CRL.A No. 1154 of 2012

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the appellants for the offences under Section 13(1)(d) r/w 13(2) of the PC Act, where minimum punishment

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was prescribed, for the remaining offences under Section 120B and 420 of IPC, since there is no minimum punishment prescribed under the statute, taking note of the age of the appellants and that they have been removed from the service long back and they are not claiming any financial benefits in view of the affidavits of undertaking referred to supra, this Court is of the considered opinion that setting aside the imprisonment by enhancing the fine amount in a sum of Rs.75,000/- would meet the ends of justice.

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Out of the fine amount recovered, if a sum of Rs.3,00,000/- is paid as compensation to the Canara Bank, CCFB, Infantry Road, Bengaluru, ends of justice would better serve. Accordingly, point No.3 is answered partly in the affirmative .

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REG. POINT NO.4: In view of the findings of this Court on point Nos.1 to 3 as above, following:

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NC: 2025:KHC:5590 CRL.A No. 1047 of 2012 C/W CRL.A No. 1154 of 2012

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ORDER

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i) The appeals are allowed in part ;

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ii) While maintaining the conviction of the appellants for the offence under Section 120B and 420 of IPC, appellants are acquitted for the offence under Section 13(1)(d) and 13(2) of the PC Act;

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iii) Consequently, sentence is modified and the imprisonment period ordered by the learned Trial Judge for the offence under Section 120B and 420 of the IPC for a period of 2 years each, is hereby set aside by enhancing the fine amount in a sum of Rs.75,000/- each (Rs.1,25,000/imposed by the Trial Judge is taken into consideration and since the offence under Section 13(1)(d) of the PC Act is set aside, Rs.25,000/- is to be reduced. Therefore, Rs.1,00,000/+ Rs.75,000/= Rs.1,75,000/- each) to be paid on or before 15.03.2025. Failing to pay the enhanced fine amount on or before 15.03.2025, the appellants shall undergo simple imprisonment for a period of one year.

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iv) It is made clear that in view of the affidavits filed by the appellants, till the date of removal, whatever the benefits that the appellants are entitled, can claim from the Bank, in accordance with law.

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Office is directed to return the Trial Court records

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with a copy of this judgment, forthwith.

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Ordered accordingly.

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Sd/(V SRISHANANDA) JUDGE

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BMV/RD

Sri N Shivanna v. State by

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Sri N Shivanna v. State by

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