K Anand Rao Vs State CBI Police

THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT IN SPL. CC No.55/2012 DATED 24/8/2012 PASSED BY THE XLVIII ADDL. CITY CIVIL & SESSIONS JUDGE AND SPL. JUDGE FOR CBI CASES, BANGALORE CITY (CCH-49) CONVICTING APPELLANT/ ACCUSED No.2 FOR THE OFFENCES P/U/S.120-B, 420, 419, 465 AND 468 OF IPC.

¶18

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶19

2 -

¶20

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶21

CORAM: HON'BLE MR JUSTICE V SRISHANANDA

¶22

ORAL JUDGMENT

¶23

Heard Sri.Anand Muttalli, learned counsel appearing on behalf of Sri.Vamshi Krishna, learned counsel for the appellant and Sri.P.Prasanna Kumar, learned counsel for the respondent.

¶24

Present appeal is filed by Sri.K.Anand Rao, who was accused No.2 in Spl.C.C.No.55/2012 dated 24.08.2012 on the file of XLVIII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore (CCH-49) who suffered an order of conviction for the offences punishable under Section 120B, 420, 419, 465 and 468 of IPC.

¶25

Facts which are utmost essential for disposal of the appeal are as under:

¶26

3.1. Accused No.1 – Sri.P.Rohidas Nayak was working as Bank Manager, Syndicate Bank, MRMC Branch, Gulbarga during the year 1999 – 2001, entered into criminal conspiracy with proprietor of M/s.Sudhishanth Engineering Institute and M/s.Amar Data Systems Private limited to cheat the bank.

¶27

3 -

¶28

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶29

3.2. In furtherance to such conspiracy, accused No.1 with dishonest and fraudulent intention, abused his official position as Bank Manager, retained NREVCC receipt bearing No.379263 in the branch itself which was issued towards fixed deposit of Rs.1,01,21,712.22 dated 08.10.1999, in the names of Gulab Kanayalal Paryani and Vinod Kanayalal Paryani. Both of them being the Non-Resident Indians, having deposited a Demand Draft for the purpose of creating a fixed deposit, said NREVCC receipt has been pilfered away by accused No.1 from the said branch and used the same with all necessary details as the original NREVCC receipt bearing No.379263 and issued a forged and false receipt No.379299 in the name of joint depositors. Further, accused No.1 with the help of NREVCC receipt bearing No.379263, used the same as security for arranging a loan LD No.223/1999 in a sum of Rs.55,04,500/on 03.11.1999 in the name of Gulab Kanayalal Paryani and Vinod Kanayalal Paryani.

¶30

3.3. Accused No.2/appellant knowing fully about the fact that he is not a genuine depositor, having conspired with accused No.1, impersonated as the real depositors and executed loan documents as Gulab Kanayalal Paryani and Vinod

¶31

4 - NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶32

Kanayalal Paryani and loan proceeds got transferred in the form of Demand Draft in a sum of Rs.32,00,000/- in favour of M/s.Amar Data Systems Private limited and Rs.22,50,000/favouring M/s.Sudhishanth Engineering Institute owned by accused No.2 and credited to the current account maintained by him in State Bank of India, Rajajinagar Indistrial Estate Branch, Bengaluru and current account No.396 maintained in Karnataka State Industrial Co-operative Bank Limited, Rajajinagar, Bengaluru.

¶33

3.4. Thereafter, loan proceeds were fraudulently utilized by accused Nos.1 and 2. Accused No.1 issued cheques and Demand Draft through accused No.2 in a sum of Rs.14,15,000/- in favour of various persons from whom accused No.1 had obtained the hand loans and thereby, he had obtained pecuniary advantage to the tune of Rs.14,15,000/and remaining amount was utilized by accused No.2.

¶34

3.5. Complainant also revealed that accused No.2 had repaid sum of Rs.25,00,000/- to the LD account which was opened in the name of Gulab Kanayalal Paryani and Vinod Kanayalal Paryani with Syndicate Bank, MRMC Branch, Gulbarga through pay orders but remaining amount with

¶35

5 -

¶36

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶37

interest has not been paid as on 01.01.2002, thereby there was an outstanding of Rs.46,35,920/- which was cheated to the Syndicate Bank.

¶38

After registering the case, investigation was

¶39

conducted in detail by the CBI and charge sheet came to be filed.

¶40

On receipt of charge sheet, learned Special Judge took cognizance of the offences under Section 120B read with Section 420, 409, 419, 465, 467, 468 and 477–A of IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.

¶41

Learned Special Judge took cognizance of the aforesaid offences and after complying Section 207 of Cr.P.C., framed charges against the accused persons for the aforesaid offences. Both the accused persons pleaded not guilty and therefore, trial was held.

¶42

In order to bring home the guilt of the accused, prosecution in all examined thirty eight witnesses as P.W.1 to 38 and placed on record 147 documents which were exhibited and marked as Exs.P.1 to 147.

¶43

6 -

¶44

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶45

On conclusion of recording of the evidence, accused statement as is contemplated under Section 313 of Cr.P.C. was recorded. Accused persons denied the incriminatory circumstances but did not choose to examine any witness on their behalf except marking Ex.D.1 which is the portion of statement of Sri.K.Nagesh Kini.

¶46

Thereafter Learned Special Judge heard the arguments of the parties and convicted the accused persons and sentenced them as under:

Accused No.1

xxxxxx

Accused No.2

“The accused No.2 is sentenced to undergo RI for two years for the offence punishable under Section 120B of IPC and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo SI for three months.

¶51

The accused No.2 is sentenced to undergo RI for two years for the offence punishable under Section 420 of IPC and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo SI for three months.

¶52

The accused No.2 is sentenced to undergo RI for one year for the offence punishable under Section 419 of IPC and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo SI for three months.

¶53

The accused No.2 is sentenced to undergo RI for four years for the offence punishable under Section 468 of IPC and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo SI for three months.

¶54

7 -

¶55

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶56

The substantive sentence of imprisonments stated above to run concurrently, but the sentence in default of payment of fine, in case, the fine amount is not paid to run consecutively.

¶57

The period of detention in judicial custody, if any, undergone by the accused Nos.1 and 2 already is given set off under Section 428 of Cr.P.C.”

¶58

Appeal filed by accused No.1 got dismissed as

¶59

abated as he died during pendency of appeal.

¶60

Being aggrieved by the same, accused No.2 has preferred the present appeal.

¶61

Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that since entire loan amount has been paid to the present appellant in a sum of Rs.25,00,000/-, no loss has occurred to the Syndicate Bank as is alleged by the prosecution and thus, sought for allowing the appeal.

¶62

He also pointed out that the allegations leveled against the present appellant stands not established by placing cogent and convincing evidence on record. Therefore, sought for allowing the appeal.

¶63

8 -

¶64

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶65

Alternately, he contended that in the event, this Court upholding the order of conviction, Court may consider setting aside the period of imprisonment by enhancing the fine amount reasonably.

¶66

Per contra, learned counsel for the respondent opposes the appeal grounds in toto .

¶67

He further contended that but for the active participation of the appellant in impersonating Gulab Kanayalal Paryani and Vinod Kanayalal Paryani and creating a loan account based on the fixed deposit made by Gulab Kanayalal Paryani and Vinod Kanayalal Paryani, the money would not have been parted from the Syndicate Bank on to the names of accused No.2 which was credited in the accounts maintained by accused No.2 in State Bank of India and Karnataka State Industrial Co-operative Bank Limited which was drawn by accused No.2 and later, returned to accused No.1 who in turn drew cheques and repaid his debtors which is established by the prosecution by placing cogent evidence on record.

¶68

9 -

¶69

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶70

Thus, there is no merit in any one of the contentions urged on behalf of the appellant and sought for dismissal of the appeal.

¶71

Insofar as alternate submission on behalf of the appellant is concerned, learned counsel for the respondent contended that perpetrators of the crime like the appellant would get encouraged if any leniency is shown and sought for dismissal of the appeal in toto .

¶72

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

¶73

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

¶74

1. Whether the prosecution has sufficiently established all ingredients to attract the offences under Section 120B, 420, 419, 465 and 468 of IPC to maintain the conviction of accused No.2?

¶75

2. Whether the appellant makes out a case that impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

¶76

3. Whether the sentence needs a modification?

¶77

4. What order?

¶78

REG. POINT Nos.1 AND 2:

¶79

10 -

¶80

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶81

In the case on hand, admittedly accused No.1 was the Branch Manager of Syndicate Bank, MRMC Branch, Gulbarga at the relevant point of time. It is established that there was a fixed deposit by Non-Resident Indians namely Gulab Kanayalal Paryani and Vinod Kanayalal Paryani and NREVCC receipt bearing No.379263 was not issued to them. On the contrary another fake and forged NREVCC receipt was kept in the name of Gulab Kanayalal Paryani and Vinod Kanayalal Paryani and based on the original NREVCC receipt bearing No.379263, loan of Rs.55,04,500/- was obtained by accused No.2 impersonating Gulab Kanayalal Paryani and Vinod Kanayalal Paryani.

¶82

Admittedly, Gulab Kanayalal Paryani and Vinod Kanayalal Paryani did not visit the MRMC Branch, Gulbarga for opening the loan account in LD No.223/1999 in a sum of Rs.55,04,500/- on 03.11.1999. They being the Non-Resident Indians, there is no proof that they had visited the branch. It is accused No.2 who represented Gulab Kanayalal Paryani and Vinod Kanayalal Paryani and signed as Gulab Kanayalal Paryani and Vinod Kanayalal Paryani, for opening LD No.223/1999. Proceeds from the said loan was transferred by way of Demand

¶83

11 -

¶84

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶85

Draft in favour of M/s.Amar Data Systems Private Limited in a sum of Rs.32,00,000/- and sum of Rs.22,50,000/- was transferred to M/s.Sudhishanth Engineering Institute owned by accused No.2. Out of those proceeds, sum of Rs.14,50,000/was drawn and was disbursed to several other people from whom accused No.1 had borrowed the money.

¶86

These factors being established by the prosecution, by placing necessary documentary evidence on record, oral evidence of the witnesses is of not much significance as they are only deposing about the entries in the documents. Further, minor contradictions elicited in the oral testimony of the prosecution witnesses, in the cross-examination, on behalf of the appellant, did not cause any serious dent in the case of the prosecution as the case of the prosecution is predominantly based on entries in the books of the bank. Therefore, contradictions elicited in the cross-examination must be treated as minor contradictions. Sum total of the oral and documentary evidence establishes that there was siphoning of the money from the Syndicate Bank to the account of accused No.2. Admittedly, accused No.2 was not the beneficiary of the

¶87

12 -

¶88

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶89

fixed deposit bearing No.379263 in a sum of Rs.1,01,21,712-22 paisa.

¶90

Under such circumstances, grant of loan against the said fixed deposit which was belonging to Gulab Kanayalal Paryani and Vinod Kanayalal Paryani by accused No.2 impersonating Gulab Kanayalal Paryani and Vinod Kanayalal Paryani and forging their signatures establishes all ingredients required to attract the aforesaid offences. Therefore, conviction of the appellant for the aforesaid offences needs to be maintained.

¶91

The legal infirmity that is canvassed before the Court on the behalf of the appellant as discussed supra, is in the nature of contradictions in the evidence of the prosecution witnesses which are minor in nature and did not affect the case of the prosecution in any significant manner. Therefore, point No.1 is answered in affirmative and point No.2 is answered in negative even after reappreciation of the material on record.

¶92

REG.POINT No.3:

¶93

Having held that appellant is responsible for the offence of conspiracy with accused No.1 and siphoning the

¶94

13 -

¶95

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶96

money to the tune of Rs.55,04,500/-, material on record also depicts that sum of Rs.25,00,000/- is repaid by the present appellant to the bank and balance amount was recovered by the bank from accused No.1, in principle, there is no pecuniary loss that has been caused to the bank.

¶97

However, it is settled principles of law and requires no emphasis that mere repayment of the loan amount or settling the civil liability would not ipso facto result in effacing the criminal liability as is held in the case of Gian singh v. State of Punjab reported in (2012) 10 SCC 303 .

¶98

Therefore, the argument that has been canvassed on behalf of the appellant that appellant needs to be acquitted in toto cannot be countenanced in law.

¶99

Admittedly, present appellant is now aged about 56 /57 years. Incident has occurred in the year 2001, having repaid the entire amount and case on hand being an isolated incident, as appellant is not having any criminal antecedents, this Court is of the considered opinion that if the sentence of imprisonment is set aside by enhancing the fine amount to sum of Rs.2,00,000/- would meet the ends of justice more so,

¶100

14 -

¶101

NC: 2025:KHC:3820 CRL.A No. 939 of 2012

¶102

taking note of the fact that accused No.1 is dead. Accordingly, point No.3 is answered partly in the affirmative .

¶103

REG.POINT No.4:

¶104

In view of the findings of this Court on point Nos.1 to 3 as above, following:

¶105

ORDER

¶106

i. Criminal appeal is allowed in part.

¶107

ii. While maintaining the conviction of the appellant for the offence punishable under Section 120B, 420, 419, 465 and 468 of IPC, sentence of imprisonment ordered by the learned Special Judge in the impugned judgment is set aside by enhancing the fine amount in a sum of Rs.2,00,000/- in respect of all the aforesaid offences (exclusive of the fine amount already imposed).

¶108

iii. Time is granted for the appellant to pay the fine amount till 28.02.2025 failing which the appellant shall undergo the imprisonment as

¶109