Sri Gurukumar G Choukimath, Vs CBI Acb

SRI GURUKUMAR G CHOUKIMATH S/O GURULINGAIAH CHOUKIMATH AGED 49 YEARS RESIDING AT NO.104, GROUND FLOOR NAVAMI SHAKAR, III CROSS 5^TH MAIN, GRAHALAKSHMI LAYOUT BASAVESHWARANAGAR POST KAMALANAGAR BANGALORE - 560 079

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…APPELLANT

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Digitally signed by NANDINI B G Location: High Court of Karnataka

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(BY SRI. KIRAN S. JAVALI, SR. ADVOCATE FOR SRI. CHANDRASHEKARA .K., ADVOCATE)

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AND:

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CBI ACB BELLARY ROAD BANGALORE. BY SPECIAL STANDING COUNSEL FOR CBI HIGH COURT OF KARNATAKA BANGALORE.

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…RESPONDENT

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(BY SRI. NITHIN GOWDA K.C., ADVOCATE FOR SRI. P. PRASANNA KUMAR, ADVOCATE)

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HC-KAR

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 04.07.2011 PASSED BY THE XXXII ADDL.C.C. AND S.J. AND SPL.JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C.NO.54/2004 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 120(B) R/W 420, 468, 471, 477(A), 409 OF IPC; AND APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 120B OF IPC; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 420 OF IPC AND SHALL PAY FINE OF RS.10,000/- AND IN DEFAULT OF FINE HE SHALL UNDERGO S.I. FOR 6 MONTHS; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 468 OF IPC AND SHALL PAY FINE OF RS.10,000/- AND IN DEFAULT OF FINE, HE SHALL UNDERGO S.I. FOR 6 MONTHS; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 471 OF IPC AND SHALL PAY FINE OF RS.10,000/- AND IN DEFAULT OF FINE, HE SHALL UNDERGO S.I. FOR 6 MONTHS; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. TWO YEARS AND SHALL ALSO PAY FINE OF RS.10,000/- FOR THE OFFENCE P/U/S 477A OF IPC IN DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO S.I. FOR 6 MONTHS; IT IS FURTHER ORDERED THAT THE SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY.

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IN CRL.A NO. 724/2011

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BETWEEN:

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ACHUTHA BALIGA

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S/O. LATE PUNDALIKA BALIGA AGED ABOUT 57 YEARS RESIDENT OF NO.6-12-474/2 "SRI ARYA DURGA DAMODAR" OPP; MAHAMAYI TEMPLE

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HC-KAR

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MATHADA KANI ROAD BOCKAPATNA MANGALORE - 575 006

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...APPELLANT

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(BY SRI: N DINESH RAO.,ADVOCATE)

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AND:

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INSPECTOR OF POLICE C.B.I/ACB BANGALORE

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...RESPONDENT

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(BY SRI: NITHIN GOWDA K.C., ADVOCATE FOR SRI: P. PRASANNA KUMAR, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 04.07.2011 PASSED BY THE XXXII ADDL.C.C. AND S.J. AND SPL. JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C.NO.54/2004 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 120(B) R/W 420, 468, 471, 477(A), 409 OF IPC. AND U/S 13(1)(D) R/W 13(2) OF PREVENTION OF CORRUPTION ACT 1988; AND APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 120B OF IPC; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 420 OF IPC AND SHALL PAY FINE OF RS.10,000/- AND IN DEFAULT OF FINE HE SHALL UNDERGO S.I. FOR 6 MONTHS; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 468 OF IPC AND SHALL PAY FINE OF RS.10,000/- AND IN DEFAULT OF FINE, HE SHALL UNDERGO S.I. FOR 6 MONTHS; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 471 OF IPC AND SHALL PAY FINE OF RS.10,000/- AND IN DEFAULT OF FINE, HE SHALL UNDERGO S.I. FOR 6 MONTHS; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. TWO YEARS

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HC-KAR

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AND SHALL ALSO PAY FINE OF RS.10,000/- FOR THE OFFENCE P//S 477A OF IPC IN DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO S.I. FOR 6 MONTHS; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS AND SHALL ALSO PAY FINE OF RS.10,000/- FOR THE OFFENCE P/U/S 13(2) R/W 13(1)(D) OF PREVENTION OF CORRUPTION ACT 1988, AND IN DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO S.I. FOR 6 MONTHS; IT IS FURTHER ORDERED THAT THE SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY.

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IN CRL.A NO. 790/2011

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BETWEEN:

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YESURATHNA S/O. CHANDRA BABU AGED ABOUT 45 YEARS CHAIRMAN OF M/S. MASTER ASSOCIATES, MYSORE R/O NO.553, TANK ROAD 10^TH CROSS, N.R. MOHALLA MYSORE

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...APPELLANT

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(BY SRI: P.N. HEGDE, ADVOCATE)

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AND:

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STATE BY INSPECTOR OF POLICE CBI REPRESENTED BY SPP HIGH COURT OF KARNATAKA BANGALORE.

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...RESPONDENT

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(BY SRI: NITHIN GOWDA K.C., ADVOCATE FOR SRI: P. PRASANNA KUMAR, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 04.07.2011 PASSED BY THE XXXII ADDL.C.C. AND S.J. AND SPL.JUDGE FOR CBI

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HC-KAR

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CASES, BANGALORE IN SPL.C.C.NO.54/2004 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 120(B) R/W 420, 468, 471, 477(A), 409 OF IPC; AND APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 120B OF IPC; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 420 OF IPC AND SHALL PAY FINE OF RS.10,000/- AND IN DEFAULT OF FINE HE SHALL UNDERGO S.I. FOR 6 MONTHS; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 468 OF IPC AND SHALL PAY FINE OF RS.10,000/- AND IN DEFAULT OF FINE, HE SHALL UNDERGO S.I. FOR 6 MONTHS; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 471 OF IPC AND SHALL PAY FINE OF RS.10,000/- AND IN DEFAULT OF FINE, HE SHALL UNDERGO S.I. FOR 6 MONTHS; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. TWO YEARS AND SHALL ALSO PAY FINE OF RS.10,000/- FOR THE OFFENCE P/U/S 477A OF IPC IN DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO S.I. FOR 6 MONTHS; IT IS FURTHER ORDERED THAT THE SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY.

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

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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COMMON ORAL JUDGMENT

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The appellant in Criminal Appeal No.741 of 2011 being accused No.5; the appellant in Criminal Appeal No.724 of 2011 being accused No.1; and the appellant in Criminal Appeal

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HC-KAR

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No.790 of 2011 being accused No.2 in Spl.CC No.54 of 2004 on the file of the learned XXXII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru (CCH.34), are impugning the judgment of conviction and order of sentence dated 04.07.2011, convicting accused Nos.1, 2, 4 and 5 for the offences punishable under Sections 120-B read with Section 420, 468, 471, 477-A and 409 of IPC and also convicting accused No.1 for the offence punishable under Section 13(1)(d) read with Section 13(2) of PC Act, and sentencing accused Nos.1, 2 , 4 and 5 to undergo simple imprisonment for a period of two years for the offence punishable under Section 120-B of IPC; to undergo simple imprisonment for a period of two years and to pay fine of Rs.10,000/- for the offence punishable under Sections 420, 468, 471 and 477-A of IPC; and accused No.1 was sentenced to undergo simple imprisonment for a period of two years and to pay fine of Rs.10,000/- for the offence punishable under Section 13(1)(d) read with Section 13(2) of PC Act, with default sentences.

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HC-KAR

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Brief facts of the case as made out by the prosecution is that, accused No.1 being the Manager of Corporation Bank, SR Branch, Mysuru during 1998-2000 was the public servant and he conspired with accused Nos.2 to 5. They have fraudulently created charge on FCNR(B) account Nos.4/99, 9/99, 20/99, 14/2000, 15/2000 and 16/2000, forged valuable security, used forged documents as genuine and tampered the books of accounts. It is stated that accused No.1 in furtherance of the common object, criminally conspired with accused Nos.2 to 5, forged and cheated the FCNR(B) account holders by forging the signatures of the depositors, forged the parallel deposit receipts, the ledger folio and managed to delete the condition found on the deposit receipts Nos.125014 and 125015 not to create the lien and cheated the bank by granting loan of Rs.52,00,000/- to accused No.2, Rs.45,00,000/- and Rs.49,25,104/to accused No.3, Rs.30,00,000/and Rs.65,00,000/- to accused No.4 on the security of FCNR(B) Nos.4/99, 9/99, 20/99, 14/2000 and 15/2000. Thus, accused No.1 fraudulently granted loan to accused Nos.2 to 4 and availed financial accommodation of Rs.175.74 lakhs and misappropriated the same. Thereby, they have committed

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HC-KAR

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criminal breach of trust. Accused No.1 being the public servant was party to the criminal conspiracy with accused Nos.2 to 5 obtained pecuniary advance of Rs.5,60,600/- committed misconduct and thereby committed the offences as stated above. The Investigating Officer after investigation, filed the final report against accused Nos.1 to 5 for the offences as stated above.

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Learned Magistrate took cognizance of the offences

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and summoned the accused. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 36, got marked Exs.P1 to P386. Accused have denied all the incriminating materials available on record in their statement recorded under Section 313 of Cr.P.C. Accused No.5 got examined Exs.D1 to D4 in support of his defence. The Trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of accused Nos.1, 2, 4 and 5 for the offences punishable under Section 120-B read with Sections 420, 468, 471, 477-A, 409 of IPC and accused No.1 is also found guilty for the offence

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HC-KAR

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punishable under Sections 13(1)(d) read with Section 13(2) of PC Act. Accordingly, they were sentenced as stated above.

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Since accused No.3 is said to have died during trial.

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The case against him stood abated. It is stated that accused No.4 had preferred Criminal Appeal No.811 of 2011. Since he died during pendency of the appeal, the said appeal came to be dismissed vide order dated 05.06.2025. Thus, accused Nos.1, 2 and 5 are before this Court preferring these three appeals.

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Heard Sri Kiran S Javali, learned senior advocate for Sri K Chandrashekara, learned counsel for the appellant in Criminal Appeal No.741 of 2011; Sri N Dinesh Rao, learned counsel for the appellant in Criminal Appeal No.724 of 2011; Sri P N Hegde, learned counsel for the appellant in Criminal Appeal No.790 of 2011 and Sri K C Nithin Gowda, learned counsel for Sri P Prasanna Kumar, learned counsel the respondent in all the three cases. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the points that would arise for my consideration is:

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HC-KAR

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"Whether the appellants in all the cases have made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court and to acquit them for the charges leveled against them?"

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My answer to the above point is 'partly in the affirmative' for the following:

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REASONS

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It is the contention of the prosecution that accused No.1 was the Manager of Corporation Bank, SR Branch, Mysuru from 1998-2000 and he is a public servant. This fact is not in dispute, rather it is admitted. It is the further contention of the prosecution that accused Nos.2 and 5 have mobilized foreign deposits from various Non Resident Indians (NRIs.) and those deposits were taken by accused No.1 as FCNR(B)s. Accused No.1 being the Branch Manager conspired with accused Nos.2 to 5, forged the signature and the documents, used such forged documents as genuine documents, sanctioned loan of Rs.52,00,000/- in favour of accused No.2 creating lien/charge over FCNR(B) No.4/1999, Rs.45,00,000/- in favour of accused No.3 creating lien/charge over FCNR(B) No.9/1999 and another

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HC-KAR

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Rs.13,13,996/- in favour of accused No.3 creating lien/charge over FCNR(B) No.14/2000, Rs.25,00,000/- in favour of accused No.4 creating lien/charge over FCNR(B) No.20/1999 and another loan of Rs.65,00,000/- in favour of accused No.4 creating lien/charge over FCNR(B) Nos.15/2000. Accused Nos.2 to 4 have never offered any security for these loans of over 2.00 crores, utilized the same to the detriment of FCNR holders. Thus, it is the contention of the prosecution that accused Nos.1 to 5 criminally conspired and committed forgery, cheating, concoction of documents and misappropriated the amount. Thus, accused No.1 being the public servant has also committed misconduct.

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To prove these contentions, the prosecution is placing reliance on both oral and documentary evidence. Even though voluminous documents are placed before the Court, PW13 is the material witness to prove the charge against the accused. This witness is the Deputy Manager, Vigilance Cell of Corporation Bank, who conducted internal enquiry on the allegations against accused No.1 and submitted his report as per Ex.P173. He has deposed in detail about the role played

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HC-KAR

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by accused No.1 in creating charge/lien over the deposits referred to as FCNR(B) Nos.4, 9 and 20 of 1999, 14, 15 and 16 of 2000 for the purpose of sanctioning loan to accused Nos.2 to 4. He identified various documents relevant to prove the role played by accused No.1 in sanctioning the loan, creating the charge/lien over FCNR(B)s. This witness identified the hand writings and signature of accused No.1 in various documents referred to in chief examination. Even though this witness is cross examined at length, nothing has been elicited to contradict him or to disbelieve him. Regarding delay in filing the complaint, he pleaded his ignorance. It is suggested to the witness that accused No.1 has rendered 25 years of unblemished service and got the appreciation letter. Nothing material is elicited from the witness even when the learned counsel for both accused Nos.1 and 2 have cross examined him at length. From the materials it could be stated that on the basis of recommendation made by this witness in report Exs.P173, PW23 - the DGM of Zonal office filed the complaint as per Ex.294.

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HC-KAR

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The next material witness is PW26 - the Principal Scientific Officer, CFSL, Chennai, who has examined various questioned documents referred to in his evidence and compared the same with specimen/standard documents, writings and signatures. In his report - Ex.P386, he has referred to the questioned and standard documents and discussed at length to form an opinion that each of the questioned signatures are similar to that of standard signatures or writings. It is also opined that there are no fundamental differences observed between questioned and standard writings/signatures as there are natural variations. The cross examination to this witness done by learned counsel for accused No.1 do not enure to his benefit, as all the suggestion put to this witness have been categorically denied by him and nothing has been elicited to disbelieve his version or to ignore his report - Ex.P386.

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PWs.27 and 33 are the two NRI depositors who have made deposit in the Bank. These witnesses have categorically stated that they never instructed or authorized accused No.1 to create lien or charge over their FCNR(B) i.e.,

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HC-KAR

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FCNR(B) Nos.15 and 16/2000. It is not even suggested on behalf of accused No.1 during cross examination that they had instructed accused No.1 to create charge or lien over said FCNR(B) for the purpose of sanctioning loan in favour of accused Nos.2 to 4. Even during cross examination by the learned counsel for accused No.2, nothing has been elicited from any of these witnesses.

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Similarly, PW31 is the General Power of Attorney holder of the original FCNR(B) No.14/2000. Nothing has been elicited from this witness in favour of accused Nos.1 and 2 to contend that they had authorized to create lien or charge over the FCNR(B)s, for the purpose of sanctioning the loan in favour of accused Nos.2 to 4.

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From the materials on record, it is clear that none of the FCNR(B) holders have instructed or authorized accused No.1 to create charge over the same for the purpose of sanctioning loan in favour of accused No.2 to 4. It is pertinent to note that 6 FCNR(B)s were made by 4 different NRIs. on 21.01.1999. The liens were created on these FCNR(B)s on the very same day i.e., 21.01.1999 and strangely the amount of

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loan was disbursed in favour of accused No.2 to 4 on the same day. Exs.P58 and 60 are the two bank statements which clearly disclose that Rs.52,00,000/- was credited to the account of accused No.2 then and there as loan proceeds. It is also pertinent to note that PW13 categorically stated that original FCNR(B)s. do not carry any endorsement regarding creating charge or lien, whereas the copies of such receipts retained by accused No.1 in the branch were having such endorsements made by accused No.1. These endorsements found on FCNR(B)s. were considered by PW26 and as per his report - Ex.P386, these writings and signatures are that of accused No.1 who has given his standard writings and signatures. Ex.P54 - the memorandum of charge/lien of deposit is also subject matter of deposits and in the report of hand writing expert, it was found to be having the handwritings and signature of accused No.1.

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The evidence of PW24 - the Manager who taken charge from accused No.1 deposed before the Court that Ex.P175 i.e., book of deposit receipts was missing and the same was not handed over to him by accused No1. But later

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HC-KAR

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accused No.1 had came to the house of this witness to hand over the said register i.e., after PW24 had complained of non handing over the book of deposit receipts. This version of PW24 remains unchallenged.

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From these materials on record, the accusing finger points towards accused Nos.1 to 4. Accused No.1 being the Manager of the Bank, being the custodian of public money has forged the signatures and writings to concoct the documents only for the purpose of sanctioning loan to accused Nos.2 to 4. Admittedly, accused No.3 and 4 have died and case against them is already abated. But accused Nos.1 and 2 are not successful in creating a dent in the case of the prosecution.

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Learned counsel for accused No.2 contended that there is no document or evidence to prove the involvement of accused No.2 in conspiring with accused No.1. But it is the settled position of law that there cannot be any positive evidence that could be led by the prosecution to prove conspiracy. It is a matter for inference by the Court on the basis of circumstances and the materials placed on record. The prosecution has placed on record the conduct of accused No.2

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that immediately after crediting the loan amount to his bank account, he has chosen to clear his earlier loan with the very same bank, but later he never chosen to repay the loan which was sanctioned by accused No.1. Till today, the said loan is not cleared as per the submission made by learned counsel for the respondent. If in fact there was no conspiracy between accused No.1 on one hand and accused Nos.2 to 4 on the other, there was absolutely no reason for accused No.1 to sanction the loan hurriedly in their favour without insisting any security from them and creating lien/charge on the FCNR(B)s. of PWs.27, 31 and 33, when they have not authorized him to do so. Therefore, it could be easily inferred that there was meeting of minds of these accused in commission of the offences.

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Learned counsel for accused No.2 has placed reliance on the decision of Hon'ble Apex Court in Parveen @ Sonu Vs State of Haryana¹ , in support of his contention that it is not safe to convict the accused in the absence of any evidence to show meeting of minds between the conspirators

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1 2021 SCC ONline SC 1184

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for the intended object of committing illegal act. The Hon'ble Apex Court on facts of that case held that in the absence of any evidence to show meeting of minds, it is not safe to convict the accused. But at the same time, it has highlighted the settled proposition of law that it is difficult to establish conspiracy by direct evidence.

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Learned counsel has also placed reliance on the decision of the Hon'ble Apex Court in Ram Sharan Chaturvedi

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Vs State of Madhya Pradesh² , in support of the very same contention, but the Court has highlighted that it is not necessary that there must be clear, categorical and express agreement between the accused. On facts, the Court held that the prosecution has failed to produce any evidence whatsoever to satisfy the Court that there was a prior meeting of minds between the accused. The Court has also observed that the evidence placed by the prosecution does not even suggest passive acknowledgment of conspiracy of the appellant before it with the accused. Therefore, the Court has cautioned against replacing mere suspicion with the requirement of proof of

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2 (2022) 16 SCC 166

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agreement. Under such circumstances, it was held that the offence under Section 120-B of IPC was not proved.

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In the present case, admittedly, accused No.2 was

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the old customer of the Bank, in which, accused No.1 was the Manager and he used to meet him very frequently and accused No.1 chosen to forge the documents for the purpose of sanctioning loan to accused No.2 without any security and creating charge over FCNR(B)s. of NRIs. without any authority and subsequent conduct of accused No.2 in appropriating the loan amount that was credited to his account, to clear the earlier loan obtained by him and his failure till date, to repay the same, are sufficient to infer the meeting of minds between accused Nos.1 and 2 in commission of the offences.

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Learned counsel also placed reliance on the decision of the Hon'ble Apex Court in Sheila Sebastian Vs R Jawaharaj and Another³ , to contend that the prosecution has not examined the Investigating Officer in the present case and therefore, the accused are not liable for conviction. The Hon'ble Apex Court has observed that it was a classic example

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3 (2018) 7 SCC 581

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of poor prosecution and shabby investigation which resulted in acquittal of the accused. It is also observed that it is the duty of the Investigating Officer and the prosecution to place all the materials on record for consideration of the Court. On facts, it was a case where the complainant had alleged that accused No.1 therein with the aid of an imposter who by impersonating the original owner created a power of attorney naming himself as the agent and on the basis of such concocted power of attorney, accused No.1 transferred the property in favour of accused No.2. Under such circumstances, the Court held that there was shabby investigation to prove the guilt of the accused.

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Learned counsel also placed reliance on the decision of the Hon'ble Apex Court in Vijender Vs State of Delhi⁴ and connected matters, in support of his contention regarding non examination of the Investigating Officer. That was a case for the offences under Sections 364, 302, 201 read with Section 34 of IPC and under Section 25 of Arms Act read with Section 5 of the Terrorist and Disruptive Activities (Prevention)

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4 (1997) 6 SCC 171

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Act, 1987. The Hon'ble Apex Court found that the conviction recorded by the Trial Court was solely based on the police report submitted under Section 173 of Cr.P.C. and highlighted that the Trial Court is required to base its conviction on the evidence adduced during the trial and it cannot rely on the investigation or the result thereof. It was a case made out by the prosecution that there was confessional statement by the accused which led to the recovery of incriminating materials which was never proved by the prosecution.

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But in the present case, all the acts and deeds of accused No.1 and 2 are recorded in the form of documents. The conduct of accused Nos.1 and 2 is the strongest circumstance against them, which is supported by undisputed documents which are voluminous in nature produced on behalf of the prosecution and deposed by various witnesses who are well conversant with the same. Non examination of the Investigating Officer in the present case is not fatal to the case of the prosecution as the Investigating Officer may not be in a

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position to explain each and every document which were maintained in the Bank in the regular course of business. But

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HC-KAR

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the witnesses concerned have explained the same and they were subjected to cross examination. Moreover, none of the documents relied on by the prosecution are disputed by the accused.

¶140

From the materials on record, it is clear that accused No.1 being the Manager of the Bank was at the helm of affairs and he conspired with accused No.2 to create charge/lien over FCNR(B)s. of various NRIs. without any authority in that regard, only for the purpose of sanctioning loan in favour of accused Nos.2 to 4 without insisting them for any security and for the said purpose they have conspired together, forged and concocted documents, committed cheating and criminal beach of trust. Further, accused No.1 being the public servant committed misconduct by abusing his position obtains for himself and for accused No.2, the pecuniary advantage and thereby committed the offence under Section 13(1)(d) punishable with 13(2) of PC Act and therefore, both accused No.1 and 2 are liable for conviction.

¶141

Even though, it is the contention of the prosecution that accused No.5 has committed the offences and he was

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HC-KAR

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convicted for above said offences, the only contention taken by the prosecution against him is that, he facilitated in getting the deposits from NRIs. Admittedly, he is not the beneficiary under any of these transactions. The beneficiaries are only accused Nos.1, 2 to 4. Mere facilitating the deposit to the Bank cannot be construed as an offence. No materials are placed on record to highlight the role of accused No.5 in commission of any of the offences. Under such circumstances, I am of the opinion that accused No.5 is entitled for acquittal, whereas, accused Nos.1 and 2 are liable for conviction.

¶145

At this stage, learned counsel for accused No.1 pleaded for leniency in sentencing accused No.1 by placing reliance on the decision of the co-ordinate Bench of this Court in C Surendra Hegde @ C S Hegde and another Vs State of Karnataka and connected matters⁵ , to contend that the coordinate Bench of this Court while modifying the order of sentence directed the accused to undergo simple imprisonment for a day i.e., till raising of the Court by enhancing the fine amount and prays for passing similar order.

¶146

5 Crl.A.No.696/2012 cw Crl.A.No.676/2013

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HC-KAR

¶149

On going through the facts of the case before the co-ordinate Bench, it is found that the Court has felt that there are no clear evidence to establish that there was pecuniary gain to accused No.1 and the same was not even spoken to by any of the prosecution witnesses. Further, the Court has taken note of the fact that there was only temporary misappropriation by forging the signature and therefore, leniency was shown while sentencing the accused. But in the present case, it is the specific contention of the prosecution that neither accused No.1 nor accused No.2 have deposited the money which they had misappropriated, till date. It is to be noticed that accused No.1 being the Manager of Corporation Bank has committed serious offences conspiring with the co-accused which is proved by the materials that are placed before the Court. Under such circumstances, I do not find any reasonable ground to interfere in the order of sentence passed by the Trial Court.

¶150

I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. It has taken into consideration all the materials on record and arrived at a right conclusion in convicting accused Nos.1 and 2.

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HC-KAR

¶153

Since accused No.5 is not the beneficiary and he has only facilitated deposit in the bank, the judgment of conviction and order of sentence passed against him needs to be interfered with. Accordingly, I answer the above point partly in the affirmative and proceed to pass the following:

¶154

ORDER

¶155

(I) Criminal Appeal No.741 of 2011 filed by accused No.5 is allowed.

¶156

(ii) Criminal Appeal Nos.724 and 790 of 2011 filed by accused Nos.1 and 2 is dismissed.

¶157

(iii) The judgment of conviction and order of sentence dated 04.07.2011 passed in Spl.CC No.54 of 2004 on the file of the learned XXXII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru (CCH.34), is hereby confirmed insofar it relates to accused Nos.1 and 2 are concerned.

¶158

(iv) The impugned judgment of conviction and order of sentence passed by the Trial Court insofar as accused No.5 is hereby set aside.

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HC-KAR

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(v) Consequently, accused No.5 is acquitted for the offences punishable under Sections 120-B read with Section 420, 468, 471, 477-A and 409 of IPC.

¶162

(iv) The bail bond of accused No.5 and that of his sureties shall stand cancelled.

¶163

(v) Fine amount, if any, deposited by accused No.5 is ordered to be refunded to him after appeal period is over.

¶164

Registry to send back the Trial Court records along with copy of this judgment for information and for needful action i.e., to issue conviction warrant against accused Nos.1 and 2, if not already issued.

¶165

Sd/(M G UMA) JUDGE

¶166

*bgn/CT:VS

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List No.: 1 Sl No.: 15

Sri Gurukumar G Choukimath, v. CBI Acb

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Sri Gurukumar G Choukimath, v. CBI Acb

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