S M Mahesh Vs Union of India

THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT:29.03.2011 PASSED BY THE XXXII ADDL.C.C AND S.J., AND SPL.JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C.NO.150/2004 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120(B), 420, 468, 471 OF IPC.

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IN CRL.A NO. 435/2011

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BETWEEN:

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G T MONNAPPA S/O G S THAMMAIAH AGED ABOUT 35 YEARS R/AT THAKERI VILLAGE AND POST SOMWARPET TALUK KODAGU DISTRICT

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S P DEVAIAH S/O S S PONNAPPA AGED ABOUT 57 YEARS R/AT THAKERI VILLAGE AND POST, SOMWARPET TALUK KODAGU DISTRICT

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S P SHIVAPPA S/O S S PONNAPPA AGED ABOUT 55 YEARS R/AT THAKERI VILLAGE AND POST, SOMWARPET TALUK KODAGU DISTRICT

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...APPELLANTS

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(BY SRI. D P PRASANNA, ADVOCATE)

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AND:

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STATE BY INSPECTOR OF POLICE CBI, ACB BANGALORE

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...RESPONDENT

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(BY SRI. P PRASANNA KUMAR, ADVOCATE)

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THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE WITH FINE DT:29.03.2011 PASSED BY THE XXXII ADDL.C.C AND S.J., AND SPL.JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C.NO.150/2004 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120(B), 420, 468, 471 OF IPC.

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IN CRL.A NO. 451/2011

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BETWEEN:

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B K KUSHALAPPA S/O SRI B K KUTTAPPA AGED ABOUT 65 YEARS BELIGERI VILLAGE AND POST SOMWARPET TALUK KODAGU DISTRICT KARNATAKA

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...APPELLANT

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(BY SRI MRINAL KUTTAPPA, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY CBI, ACB, BANGALORE REPRESENTED BY SPP HIGH COURT OF KARNATAKA BANGALORE -560 001

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...RESPONDENT

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(BY SRI P.PRASANNA KUMAR, ADVOCATE)

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THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION

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AND SENTENCE DT:29.03.2011 PASSED BY THE XXXII ADDL.C.C AND S.J., AND SPL.JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C.NO.150/04 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120(B), 420, 468, 471 OF IPC.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri K.Diwakar, learned Senior Advocate along with

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Sri Shiva Srinivasan, Sri D.Aditya, Sri D.P.Prasanna, Sri Mrinal Kuttappa, learned advocates of the appellants and Sri P.Prasanna Kumar, learned counsel for the respondent.

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Appellants are accused Nos.5 to 22 in

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Spl.C.C.No.150/2004 on the file of the XXXII Addl. City Civil and Sessions Judge and Spl. Judge for CBI cases, Bengaluru, dated 29.03.2011 who suffered an order of conviction for the offence punishable under Sections 120B, 420, 468, 471 of the Indian Penal Code and have been sentenced as under:

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“1) The accused No.5 to 22 are convicted and sentenced to undergo simple imprisonment for one year for the offence punishable U/s 120B of IPC.

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2) The accused No.5 to 22 are convicted and sentenced to undergo SI for one year for the offence punishable U/s 420 IPC and shall pay fine of Rs.5,000/each and in default of fine, they shall undergo simple imprisonment for 6 months,

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3) The accused No.5 to 22 are convicted and sentenced to undergo SI for one year for the offence punishable U/s 468 IPC and shall pay fine of Rs.5,000/each and in default of fine they shall under go simple imprisonment for 6 months

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4) The accused No.5 to 22 are convicted and sentenced to undergo SI for one year for the offence punishable U/s 471 IPC and shall pay fine of Rs.5,000/each and in deault of fine, they shall under go simple imprisonment or 6 months.

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It is further ordered that the substantive sentences shall run concurrently.

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The bail bonds of the accused Nos.5 to 10, 12 to 22 are stand cancelled.

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Since A.11 is in JC, the period of JC shall be set off with the period of sentence.”

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Facts of the case in brief which are utmost necessary for disposal of the present appeals are as under:

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Accused Nos.1 to 4 being the public servants, i.e., deceased accused No.1 being the Manager, Chikkamagaluru

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Kodagu Gramina Bank, Kumburu Branch, accused No.2 being the Revenue Inspector, deceased accused No.3 being an official in Tahsildar Office, accused No.4 being the Tahsildar, Somawarpet, said to have entered into criminal conspiracy with accused Nos.5 to 22 and deceased accused No.23 in disbursing the loan amount to accused Nos.5 to 22 and 23 without there being proper documentation, resulting in wrongful loss to the bank and wrongful gain to the beneficiaries, besides resulting in the offence of falsification of documents.

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After thorough investigation charge sheet came to be filed by the CBI. Learned Special Judge, after securing the presence of the accused persons complied with the provisions of Section 207 of the Code of Criminal Procedure and framed the Charge. All accused persons pleaded not guilty and therefore, trial was held.

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The prosecution, in order to bring home the guilt of accused persons, in all examined 22 witnesses as P.Ws.1 to 22 and placed on record as many as 175 documents which were exhibited and marked as Exs.P.1 to 175.

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On conclusion of recording of evidence, learned Special Judge recorded the accused statement as is contemplated under Section 313 of the Code of Criminal Procedure. All the accused persons including the appellants denied all the incriminatory materials, but did not place any written submission as is contemplated under Section 313(4) of the Code of Criminal Procedure nor lead the defence evidence.

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Thereafter, learned Special Judge heard the parties and acquitted accused Nos.2 and 4 and convicted accused Nos.5 to 22. It is to be noted that accused Nos.1, 3 and 23 died during pendency of the matter and case stood abated as against them.

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Being aggrieved by the same, accused Nos.5 to 22 have preferred the present appeals.

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Learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum, vehemently contended that accused Nos.2 and 4 have been acquitted by the learned Special Judge. On the same set of evidence, conviction of present appellants for aforesaid offences is per se not permissible, in view of the fact that there cannot be

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isolation of material evidence insofar as role of appellants vis-àvis role of accused Nos.2 and 4.

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They would further contend that all that the mistake that has crept-in in the documents which have been placed before the Court are while furnishing the Coffee Registration Certificate (‘CRC’ for short) which were attested by the Taluka Executive Magistrate instead by Tahsildar which could be at the most termed as irregularity and not illegality and therefore, sought for allowing the appeals.

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Alternatively, learned counsel for the appellants submits that in the event of this Court upholding the Order of conviction for the aforesaid offences of the appellants, considering the nature of the offence, appellants being first time offenders, jail sentence ordered by the learned Special Judge may be setaside by enhancing the fine amount reasonably.

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In that regard, learned counsel for the appellants have filed memos which read as under:

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IN CRL.A.No.417/2011

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“The above-named appellants herewith pray that this Hon’ble Court considering with the findings of the learned Trial Court, may be pleased to modify the said order dated 29.03.2011 in partial whereby the conviction and sentence for simple imprisonment for one year under Sec.120B of IPC may be set aside, and the concerned simple imprisonment for one year may be set aside for Section 420, 468 and 471 of the IPC and the fine so paid under the said sections may be so imposed at such escalation as per the discretion of this Hon’ble Court.”

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IN CRL.A.No.435/2011

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“The appellant above named herewith pray that if this Hon’ble Court concur with the findings of the Trial Court be pleased reduce the sentence from imprisonment to fine by imposing nominal fine, since the matter pertains to the year 1998 to 2001 and more than 25 years or elapsed.

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Wherefore be pleased to modify the sentence passed by the trial court into fine by imposing nominal fine, in the interest of justice.”

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IN CRL.A.No.451/2011

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“The undersigned counsel for the appellant herein submits that the appellant was convicted in Spl.CC.No.150/2004 for the offence of allegedly producing forged documents for the purpose of availing a bank loan and sentenced to imprisonment.

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Wherefore, it is humbly prayed that this Hon’ble court may be pleased to set aside the sentence of imprisonment by reasonably increasing the quantum of time to be paid by the accused in the interest of justice and equity.”

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Per contra, Sri P.Prasanna Kumar, learned counsel representing the Central Bureau of Investigation, opposes the appeal grounds in toto . He would further contend in a matter of this nature, the documents that are to be supplied to the bank for the purpose of sanction of loan must be adhered to in stricto sensu . Any deviation therefrom would result in the very sanctioning of loan itself as illegal and appellants being part of such conspiracy, they cannot now urge before the Court that just because accused Nos.1 and 3 died during pendency of the criminal proceedings, that no conspiracy can be established.

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He would also contend that in a matter of this nature, unless all the conspirators join together and discharge their respective role, offence itself would not have accomplished and noting the fact that accused Nos.1 and 3 are no more, criminality in furnishing the false documents or imperfect documents by the appellants in order to get the financial benefit from the bank of which accused No.1 was the Manager,

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cannot be lost sight of by this Court in adjudging the case of the appellants especially while opposing the Order of finding of guilt resulting in conviction of the appellants for the aforesaid offences.

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He also contended that the alternate submission of appellants cannot be considered by this Court inasmuch as, if such people are shown any mercy, then similarly placed perpetrators of the crime would get encouraged and such offences would be repeated often in the Society and therefore, sought for dismissal of the appeals in toto .

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, the following points would arise for consideration.

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(i) Whether the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the appellants for the aforesaid offences?

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(ii) Whether the appellants make out a case that the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference?

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(iii) Whether sentence needs modification?

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(iv) What Order?

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REGARDING POINT Nos.1 AND 2: In the case on hand, case of the prosecution predominantly hinges on the documentary evidence rather than the oral evidence of the prosecution witnesses. Admittedly, appellants are the beneficiaries of the scheme called ‘Krushi Aranya Prothsaha Yojana’ floated in the Gramina Bank for helping small scale coffee growers. In order to get the benefit from such scheme, appellants were required to furnish the ‘CRC’ issued by the Tahsildar.

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The said document is a mandatory document for processing the loan applications of each of the appellants and similarly placed coffee growers.

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Admittedly, in all these cases, CRC is not attested by the Tahsildar but it is attested by the Taluka Executive Magistrate.

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Learned counsel for the appellants would contend that the Taluka Executive Magistrate and Tahsildar are one and same person and wrongly the seal of the Taluka Executive Magistrate has been affixed on the CRC and not the seal of the Tahsildar, which at the most could be considered as ‘irregularity’ and not ‘illegality’.

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But the Deputy Commissioner who is cited as C.W.28 who has issued the sanction order to prosecute the revenue officials has specifically noted that the actions attributable to accused Nos.2 to 4 are not mere ‘irregularity’ and therefore, granted sanction order to prosecute them.

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Further, sanctioning authority of the accused No.1 who is the official superior of the Chikkamagaluru Kodagu Gramina Bank has also noted that the action attributable to accused No.1 in accepting the imperfect document and parting away with the bank finance meant for ‘Krushi Aranya Prothsaha Yojana’ would not be mere ‘irregularity’ and it is an ‘illegality’.

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Learned Special Judge bestowed his best attention in the impugned judgment to the fact of whether the act attributable

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to accused Nos. 1 to 4 wherein accused Nos.5 to 23 are the beneficiaries would amount to ‘irregularity’ or ‘illegality’ in the light of the principles of law enunciated in the decision relied on by either side.

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Thereafter, learned Special Judge has recorded a categorical finding that even though there is thin line of difference in between ‘irregularity’ and ‘illegality’, in the case on hand, action attributable to the accused persons especially having conspired together to take the benefit out of ‘Krushi Aranya Prothsaha Yojana’ would amount to ‘illegality’ and not ‘irregularity’.

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To form a different opinion, there is no contra material placed on record by the appellants. However, the learned Special Judge noted the death of accused Nos.1 and 3, did not record a finding as to the illegal gratification said to have obtained by accused No.1 by misusing his official position, so also, accused No.3.

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In respect of accused Nos.2 and 4 there is no material found from the records so as to implicate them for the reason

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that they have misused the official position for the purpose of illegal gratification and therefore, recorded an order of acquittal insofar as accused Nos.2 and 4 are concerned.

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The Central Bureau of Investigation has not preferred any appeal against acquittal of accused Nos.2 and 4 and therefore, said finding has become final.

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Taking note of the material evidence placed on record especially the CRC, finding the seal of Taluka Executive Magistrate and not Tahsildar and ignoring the same and processing the loan application for the said scheme by the accused No.1 with the aid of other revenue officials itself would complete offence for which the appellants have been convicted.

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As already pointed out by this Court, case of the prosecution predominantly hinges on the documentary evidence which cannot be denied by the appellants and being beneficiaries thereunder, the question of relooking into said aspect of the matter for the purpose of recording an order of acquittal would not arise at all.

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In other words, material on record is sufficient enough to maintain the conviction of the appellants for the aforesaid offences.

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

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REGARDING POINT No.3: This Court having recorded the finding on point Nos.1 and 2 as above, is now faced with task of finding what is the appropriate punishment for the aforesaid offences.

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Admittedly, the amount that has been borrowed by the appellants have been repaid. Therefore, there cannot be any pecuniary loss. Nevertheless, the very fact that they have obtained benefit by falsification of the documents, the appellants cannot contend that there cannot be any punishment at all.

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Taking note of the fact that appellants are the first time offenders and have been convicted for the offences where there is no minimum period of punishment of imprisonment is prescribed, this Court is of the considered opinion that at this

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distance of time, if the appellants are directed to undergo imprisonment, same would work hardship on the appellants. Therefore, sentence of imprisonment if set-aside by enhancing the fine amount reasonably, would meet the ends of justice.

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Having regard to the fact that the appellants have already paid fine in a sum of Rs.5,000/- for each of the offence i.e., each of the appellant have already paid Rs.15,000/- fine amount, thus enhancing the fine amount in another sum of Rs.15,000/- by setting aside the sentence of imprisonment would meet the ends of justice.

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Accordingly, point No.3 is answered partly in the affirmative .

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REGARDING POINT No.4: In view of the finding of this Court on point Nos.1 to 3 as above, the following:

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ORDER

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(i) Criminal Appeals are allowed in part .

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(ii) While maintaining the conviction of the appellants for the offences punishable under Sections 120B, 420, 468 and 471 of the Indian Penal Code, sentence of imprisonment ordered by the learned Special Judge in the impugned

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judgment insofar as appellants are concerned is hereby set-aside by enhancing the fine amount in a sum of Rs.15,000/- payable by each of the appellants (plus the fine of Rs.15,000/- imposed by the Trial Court) (in all Rs.30,000/-) on or before 28^th February 2025 failing which they shall undergo imprisonment as ordered by the learned Special Judge.

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(iii) Office is directed to return the Trial Court Records with copy of this Judgment for the purpose of issuing the modified conviction warrant.

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Sd/(V SRISHANANDA) JUDGE

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kcm

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List No.: 1 Sl No.: 52

S M Mahesh v. Union of India

Case brief

What is this about?

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S M Mahesh v. Union of India

Case brief

What is this about?

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