Partly allowed

N.P.Prabhu v. Central Bureau of Investigation

Kerala HC14 Jul 2010CRL.A/147/1999

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed criminal appeals challenging the conviction and sentence of a bank manager. Evidence established the creation of fictitious accounts and misappropriation of loans. The High Court upheld the conviction but modified the sentence order to run sentences concurrently instead of consecutively.

What did the court decide?

Conviction confirmed; sentences in two cases directed to run concurrently instead of consecutively.

N.P.Prabhu Vs Central Bureau of Investigation — Corruption | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932

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CRL.A.No. 147 of 1999

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------------------------------------CC.1/1998 of SPL.COURT SPE/CBI-II, ERNAKULAM ....................

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APPELLANT/ACCUSED:

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N.P.PRABHU, SENIOR MANAGER SYNDICATE BANK, ZONAL OFFICE, THIRUVANANTHAPURAM (NOW UNDER ORDER OF DISMISSAL), NOW RESIDING AT BRINDAVANAM, PONOTH ROAD, KOCHI - 17.

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BY ADV. SRI.C.S.MANU

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RESPONDENTS/COMPLAINANT & STATE:

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CENTRAL BUREAU OF INVESTIGATION, KATHRIKADAVU, KOCHI - 17 REP. BY ITS SUPERINTENDENT OF POLICE.

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UNION OF INDIA REP. BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI.

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BY ADV. SRI.N.NEELAKANTAN ELAYATH FOR R2 SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R1

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2010 ALONG WITH CRA NO.159 OF 1999, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ORDER ON CRL.M.P. 663/1999 IN CRA 147/1999

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DISMISSED

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14.7.2010

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SD/-M.SASIDHARAN NAMBIAR, JUDGE

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/TRUE COPY/

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M.Sasidharan Nambiar, J.

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Crl.A.Nos.147 & 159 of 1999

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COMMON JUDGMENT

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Appellant was the Manager of Syndicate Bank, Alappuzha Branch from 17.5.1993 to 10.6.1995. Earlier, he was the Manager of Kalamassery Branch of the same Bank. Appellant was convicted and sentenced for the offences under Sections 409, 465 and 471 of Indian Penal Code and Section 13(1)(c) and (d) read with Section 13(2) of Prevention of Corruption Act. Prosecution case is that while working as the Manager of Alappuzha Branch, appellant sanctioned loans to K.J.Joseph, Ramesh Kumar and Sasidharan Nair, who are fictitious persons. Rs.13,000/- sanctioned to K.J.Joseph, Rs.20,000/- sanctioned to Ramesh Kumar and Rs.14,300/- sanctioned to Sasidharan Nair were misappropriated by the appellant.

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In C.C.No.1/1998, the case is in respect of

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the misappropriation in the names of K.J.Joseph,

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Ramesh Kumar and Sasidharan Nair. In C.C.No.2/1998, the case is that appellant misappropriated Rs.25,000/- each by sanctioning loans to Geetha and Rita, who are factious persons. Both the cases were jointly tried. Appellant pleaded not guilty.

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Prosecution examined 39 witnesses and marked

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144 exhibits. On the side of the defence, DW1 was examined and Exhibits D1 to D9 were marked.

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Learned Special Judge (SPE/CBI)-II,

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Ernakulam, on the evidence, found the appellant guilty of the offences. He was convicted and sentenced to rigorous imprisonment for a period of three years and a fine of Rs.5,000/- for the offence under Section 409 of Indian Penal Code, rigorous imprisonment for a period of one year and a fine of Rs.1,000/- for the offence under Section 465 of Indian Penal Code, rigorous imprisonment for one year and a fine of Rs.1,000/- for the offence

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under Section 471 of Indian Penal Code and rigorous imprisonment for a period of three years and a fine

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of Rs.5,000/- for the offence under Section 13(2) of Prevention of Corruption Act, providing that in default of payment of fine, he has to undergo simple imprisonment for a period of three months in each of the offences. The substantive sentences were directed to be run concurrently. In both the cases separate sentences were awarded making it clear that the substantive sentences shall run consecutively. These appeals are filed challenging the conviction and sentence.

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Crl.A.No.147/1999 is filed challenging the

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conviction and sentence in C.C.No.1/1998 and Crl.A. No.159/1999 is filed challenging the conviction and sentence in C.C.No.2/1998. Appellant would contend that learned Special Judge did not properly appreciate the evidence and the defence case was not even properly considered. It is contended that first ingredient of the charge in C.C.No.1/1998 is

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that loanees K.J.Joseph, Ramesh Kumar and Sasidharan Nair are fictitious persons and there is

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no conclusive evidence to prove that they are fictitious persons. It is also contended that trial court should not have accepted the evidence of postmen, bank staff and the Investigating Officer to hold that the loanees are fictitious persons and Exhibits D1 and D2 documents establish that loanees are not fictitious persons and instead, they have remitted the amount due to the Bank consequent to the decree passed against them and learned Special Judge ought to have found that non-examination of the Advocate, who issued Exhibits D1 and D2, is fatal to the prosecution and the burden is on the prosecution to prove that they are fictitious persons as alleged and therefore, the finding that loanees are fictitious persons is unsustainable. It

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is also contended that similarly, there is no evidence to prove that Geetha and Rita, the loanees in C.C.No.2/1998, are fictitious persons and the

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account opening form available shows that photograph of Geetha was affixed and the CBI has

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not taken proper steps to trace out that lady and in the light of the evidence, it is not possible to hold that all the loanees are fictitious persons as

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claimed. It is contended that as against the loanees, suits were instituted by the Bank for realisation of the amount and Exhibits D5 to D9 judgments in those suits establish that decree was granted in favour of the Bank for realisation of the amount against the loanees and no investigation was conducted as to whether summons in those cases were personally served on the loanees and they are fictitious or not and in the light of Exhibits D1 and D2, it can only be found that they are not fictitious persons. It is also contended that even though postmen were examined to prove that they could not trace out the addresses, to whom notices were sent by the Bank officials, that does not mean that loanees were not there in the addresses furnished to the Bank when loan applications were submitted and based on the subsequent event, it is

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not possible to hold that loanees are fictitious persons. It is argued that evidence of PW38, the expert and Exhibit P133 statement and Exhibit P134 reasoning should not have been relied on, as they are not conclusive. Appellant would contend that there is no conclusive evidence to prove that appellant either forged any documents or used the forged documents as if genuine or misappropriated any amount of the Bank in his capacity as the Manager of the Bank and he has not committed any breach of trust and therefore, the offences under Sections 409, 465 and 471 of Indian Penal Code and Section 13(2) of Prevention of Corruption Act are

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not attracted and the conviction is not sustainable. Learned counsel finally submitted that in any case, sentences awarded are excessive and

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there is no justification for directing that substantive sentences in the two cases shall run consecutively.

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Learned Special Public Prosecutor for CBI

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submitted that learned Special Judge elaborately considered the evidence and there is conclusive evidence to prove that appellant, misusing his position as the Manager of the Bank, created records as if loans were sanctioned to different persons and availed of the loan and misappropriated the same and evidence conclusively establish that the loan applications were prepared and loans were sanctioned and utilised by the appellant in the names of K.J.Joseph, Ramesh Kumar and Sasidharan Nair, Geetha and Rita and therefore, there is no reason to interfere with the conviction.

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The fact that appellant was the Manager of Syndicate Bank, Alappuzha Branch during the

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relevant period and he had sanctioned loans in the names of K.J.Joseph, Ramesh Kumar, Sasidharan Nair, Geetha and Rita are admitted. The contention raised by the appellant is that they are not fictitious persons and the loans sanctioned to them were not

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misappropriated by the appellant and there is no sufficient evidence to conclusively establish the guilt and therefore, conviction is not sustainable.

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The fact that Rs.13,000/- was sanctioned to

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K.J.Joseph as loan on Exhibit P12 loan application

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by the appellant is admitted. Exhibits P13 to P16 are the loan documents. The loan of Rs.13,000/- was disbursed by Exhibit P20 Demand Draft in the name of Bank of Baroda under Exhibit P18 debit slip. A Savings Bank Account was earlier opened in the name

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of K.J.Joseph under Exhibit P8 account opening form. Exhibit P10 is the initial deposit slip in that account and Exhibit P11 the ledger extract of the Saving Bank account. Exhibit P21 is the ledger extract of the loan granted under Exhibit P12 application. Exhibit P20 Demand Draft was credited to Exhibit P49 account of the appellant maintained

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in Bank of Baroda, Kalamassery Branch. It is admitted that Exhibit P49 is the account maintained by the appellant personally in that bank.

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Prosecution case is that K.J.Joseph is a fictitious person. Exhibit P8 Savings Bank account was opened in the name of that fictitious person as introduced by the appellant and the loan amount was also misappropriated by the appellant.

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PW1, who was the Clerk of Kalamassery Branch of Syndicate Bank while appellant was working as the Manager, deposed that he was working there from 1992 onwards. Evidence of PW1 establishes that he was working in the Savings Bank Account Section then and petitioner was the Manager and a Savings Bank Account was opened in the name of K.J.Joseph while he was working there and the ledger entry regarding the account was initialed by him and the Savings Bank Account was opened by Exhibit P10 initial deposit slip for Rs.200/- and Exhibit P10 was prepared in the handwriting of the appellant. PW1 was not cross-examined on this aspect. Evidence of PW2, who was also a Clerk in that Branch, who was working as Cashier as well as Savings Bank

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Clerk and Loan Clerk, deposed that Exhibit P12 loan application in the name of K.J.Joseph was filled up by the appellant and the loan was also sanctioned by him and the loan documents were prepared by PW2 as instructed by the appellant based on Exhibit P12 application and to disburse the loan amount, a Demand Draft was also prepared and it was the appellant who introduced K.J.Joseph to the Bank to open the account. These facts are also not challenged. Exhibit P20 Demand Draft was encahsed through Exhibit P49 account in the name of the appellant maintained in Kalamassery Branch of Bank of Baroda. Evidence of PWs 4, 11 and 22 establish this fact. PW4 was the Manager of Kalamassery Branch of Bank of Baroda. His evidence establishes that Exhibit P20 Demand Draft was sent to the Bank by the appellant along with a letter to credit the amount to his account and the amount so collected was credited to Exhibit P49 account of the appellant. It is also established that out of the

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loan amount of Rs.13,000/- sanctioned to K.J.Joseph, under Exhibit P35 credit slip, Rs.7,498/- was paid to the loanee and Exhibit P35 credit slip for that purpose was initialed by the appellant. Evidence of PW10 establishes that as instructed by the appellant he prepared Exhibit P35 slip and appellant initialed in Exhibit P35 at the place where the depositor has to sign.

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PW38, the Assistant Examiner for Questioned Documents, Government of India, Hyderabad, examined Exhibits P8 to P10 and P18 and found that the signature purporting to be that of K.J.Joseph is identical to the signature of the appellant. The fact that writings are in the handwriting of the appellant is not in dispute. The notices sent to K.J.Joseph from the Bank demanding the amount covered by the transaction were returned unserved with the endorsement 'no such addressee'. It is on this evidence, learned Special Judge found that K.J.Joseph is a fictitious person and though

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Rs.13,000/- was sanctioned by the Bank in the name of K.J.Joseph, it was utilised by the appellant.

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Argument of the learned counsel is that the

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fact that notices were returned subsequently, does not mean that Joseph was not there in the address given in the loan application and therefore, on that basis, it cannot be said that he is a fictitious person. Exhibit D5 is the copy of the judgment in O.S.No.605/1996, instituted by the Bank against Joseph and co-obligant John, which was dismissed as not pressed on 20.6.1997. Exhibit D2 is letter dated 3.6.1997, issued by the counsel, who was appearing for Syndicate Bank in that suit, stating that counsel has received Rs.13,228/- in full and final settlement of the claim in O.S.No. 605/1996 from Sri.C.J.Sajjan, Advocate, Cherthala on 3.6.1997 at his office. Argument of the learned counsel is that Exhibit D2 shows that the amount claimed in the suit from the loanee Joseph was paid by Advocate Sajjan on his behalf and consequently,

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the suit was dismissed as not pressed. Evidence of the Investigating Officer shows that he did not question either the counsel appearing for the Bank or Advocate Sajjan to verify whether the amount was received from the loanee K.J.Joseph and therefore, the finding that K.J.Joseph is a fictitious person is unsustainable. While appreciating Exhibit D2 as well as Exhibit D5, it is to be borne in mind that though the suit was instituted in 1996, the suit was not pressed on receipt of the amount claimed in the suit from Advocate Sajjan. Though the amount misappropriated by availing a loan in the name of Joseph is Rs.13,000/-, part of the amount has already been paid in that account. Evidently, when appellant was sure that he cannot escape from the case, payment was made through Advocate Sajjan to show that the loanee is not a fictitious person.

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On going through the evidence, I find no

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reason to interfere with the finding of the learned Special Judge that K.J.Joseph is a fictitious

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person and the amount was actually availed by the appellant. Even though the signature seen in Exhibit P12 application is not proved by the expert as that of the appellant, as it was not sent to him for comparison, Exhibits P8, the application form by which a Savings Bank Account was opened in the name of Joseph, Exhibit P9, the specimen signature card of Joseph as well as Exhibit P10, the initial deposit slip, were sent for comparison and it was found that the signature is that of the appellant. Added to this, Exhibit P18, the debit slip by which the loan of Rs.13,000/- was disbursed under Exhibit P20 Demand Draft, was also examined and it was found that the signature is that of the appellant. Added to this, amount of Rs.13,000/- sanctioned to Joseph was actually credited to Exhibit P49 account of the appellant maintained in Bank of Baroda. The findings of the learned Special Judge, based on these evidence, are perfectly correct and warrant no interference.

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Prosecution case is that a loan of Rs.20,000/- was sanctioned to Ramesh Kumar. That fact is not disputed. Exhibit P87 is the loan application and Exhibits P88 to P90 are the loan documents and Exhibit P34, the ledger extract of the loan and Exhibit P73, the Demand Draft by which Rs.17,100/-, out of the loan amount, was credited to the account of PW16 Balakrishnan. PW16 is none other than the uncle of the wife of the appellant. Exhibit P1 is the account opening form where under, a Savings Bank Account was opened in the name of Ramesh Kumar. Exhibit P2 is the specimen signature card and Exhibit P3 is the initial deposit slip and Exhibit P4 is the extract of the Savings Bank ledger account. Evidence of PW10, the officer dealing with loan in that Bank, establishes that documents regarding the loan sanctioned to Ramesh Kumar were handed over to him by the appellant

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disclosing that he knew the loanee and the signature in the application is that of the loanee.

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PW10 was directed to sanction the loan. Out of the

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loan amount of Rs.20,000/-, under Exhibit P73

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Demand Draft, Rs.17,100/- was credited to the account of PW16 in Exhibit P70 Savings Bank

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Account. Evidence of PW16 shows that while

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appellant was working as the Manager of Kalamassery Branch of Syndicate Bank, he approached PW16 and asked for money. When PW16 disclosed that he did not have the money as he had availed loan for his

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workshop by name Pushpa Engineers, appellant told him that he will sanction loan in the name of PW16

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and PW16 has to get that amount in cash and

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handover the same to the appellant. Accordingly, he had gone to that Bank and signed the papers and

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received the money and handed over the same to the

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appellant. According to PW16, later, he received a notice from the Bank for repayment of the loan and

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PW16, therefore, approached the appellant, who was

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then working at Alappuzha. Then, the appellant disclosed to him that he will do what all are

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necessary and he need not worry and after some days, when he enquired with Kalamassery Branch of Syndicate Bank, it was informed that the loan was cleared. PW16 deposed that he did not utilise any portion of the amount taken on loan from that Bank and also did not remit any amount. When PW16 deposed these facts, the only challenge in his evidence was whether he demanded for any document for payment of the loan and whether he received notice from the Bank by registered post or not. The other aspects deposed by PW16 were not even challenged. At the same time, when questioned under Section 313 of Code of Criminal Procedure, wisdom had known to the appellant. He claimed that in the family partition of the wife of the appellant, PW16 was dissatisfied with the share allotted to his niece and therefore, PW16 has a grudge against the appellant and it is for that reason, he had deposed against him. If, in fact, there was such a dispute with PW16, either on account of any property

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dispute or on any other ground, it would have been put to PW16. Appellant had no such case when PW16 was examined. Evidence of PW16 establishes that subsequent case was created to explain the evidence, which was binding on the appellant. Evidence further establishes that out of the loan amount of Rs.20,000/- availed in the name of Ramesh Kumar, Rs.17,100/- was credited to Exhibit P70 Savings Bank Account of PW16. In spite of the evidence of PW16 that he did not remit any portion of the loan amount in his account, he was not questioned with regard to the said credit of Rs.17,100/-. That Rs.17,100/-, which was credited to the account of PW16, is the amount which should have been credited to the account of the supplier of the materials to Ramesh Kumar. Exhibit P87 loan

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application does not mention the name of the supplier, which should have been there in a genuine loan application. Evidence of PW10 establishes that Exhibit P73 Demand Draft was prepared as instructed

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by the appellant. Though it was sought to be explained in the statement filed at the time of questioning under Section 313 of Code of Criminal Procedure that PW16 Balakrishnan was the supplier of materials to Ramesh Kumar and therefore, the Demand Draft was issued to PW16, when PW16 was examined, there was no such case. On the evidence, learned Special Judge was fully justified in disbelieving the said case and finding that Exhibit P73 Demand Draft was credited to the account of

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PW16 as that loan was also arranged by the appellant, though in the name of PW16. Evidence

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conclusively establish that appellant is the beneficiary of the loan availed in the name of

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Ramesh Kumar and the amount was misappropriated by him.

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Prosecution case is that under Exhibit P22

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loan application appellant sanctioned a loan of Rs.14,300/- to Sasidharan Nair, who is a fictitious person and under Exhibit P130 account opening form

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a Savings Bank Account was opened in the name of Sasidharan Nair and Exhibit P131 is the specimen signature card and Exhibit P132 is the initial payment slip. Under Exhibit P30 credit slip, by Exhibit P31 Demand Draft for Rs.14,300/-, the loan

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was disbursed. The Demand Draft, in turn, was

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credited to the account of Madhusoodanan, who was examined as PW17. Evidence of PWs 2, 11 and 17 establish that Exhibit P31 Demand Draft was credited to the account of Madhusoodanan and towards the loan amount due from Sasidharan Nair, Rs.8,458/- was paid under Exhibit P33 credit slip. Evidence of PW10 establishes that Exhibit P33 credit slip was prepared by him as instructed by the appellant. Evidence of PW17 is to the effect that he has not opened any account in Kalamassery Branch of Syndicate Bank. He also deposed that the handwriting in Exhibit P57, the account opening form or the signature of the depositor shown in Exhibit P58, the initial deposit voucher or the

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signature on the reverse side of Exhibit P57, relating to the account in his name, are not his signature or his handwriting and in Exhibit P59 loan application also, he has not signed. He also deposed that even the name of his father is not correctly mentioned as the initial is different. PW17 deposed that he has not signed in Exhibits P60 to P62, the loan documents and the signature seen as of the depositor in Exhibit P69 is also not his signature.

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Evidence of PW5, the Assistant Manager of Kalamassery Branch of Syndicate Bank, establishes

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that it was the appellant who introduced Madhusoodanan to the Bank to open a Savings Bank Account and Exhibit P58 credit slip was prepared in his handwriting as instructed by the appellant and the said Madhusoodanan has not come to the Bank.

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Exhibit P59 loan application in the name of Madhusoodanan was also filled up by PW5, as instructed by the appellant. As per that

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application, a loan of Rs.10,000/- was sanctioned by the appellant, who signed in Exhibit P59 application. As seen from Exhibit P63 ledger extract, on 1.10.1990, under Exhibit P64 debit voucher prepared by PW5, the amount was credited to the Savings Bank Account of Madhusoodanan. Exhibit

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P65 credit voucher was also prepared by PW5 as instructed by the appellant and out of the said amount so credited, Rs.8,624.90 was debited and under Exhibit P66 transfer debit slip, it had gone to Exhibit P52 account of PW6 Omana. Exhibit P63 credit slip shows that on 24.10.1999 Rs.3,000/- was credited to the loan account of Madhusoodanan and Exhibit P69 credit slip was prepared by PW5 in his own handwriting and that payment was in fact made by the appellant as he entrusted it to PW5. A loan

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of Rs.12,000/- was sanctioned to PW6 Omana and

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Exhibit P52 is the ledger extract of that account.

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Though that loan was sanctioned in the name of Omana, appellant is the beneficiary. According to

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PW5, appellant asked for Rs.5,000/- from him. As he did not have that cash, appellant requested his help to arrange a loan. Therefore, PW5 asked PW6,

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who is the landlady of PW5, for a loan of Rs.12,000/-. Then PW6 handed over a Fixed Deposit Receipt to enable PW5 to take a loan stating that she would sign the necessary papers. Accordingly, PW5 prepared necessary papers and got the signature of PW6 from her house. Thereafter, that loan was sanctioned by the appellant. Exhibit P53 credit slip was prepared by PW5 as instructed by the appellant and in Exhibit P54, the ledger extract, the loan amount is seen credited by Exhibit P54(a) entry. In that account, under Exhibit P55 credit slip, Rs.3,500/- was credited. That credit slip was also prepared by PW5 as instructed by the appellant. Evidence of PW5 is that appellant entrusted the money and directed PW5 to remit that amount in that account. Rs.8,624.90 is the amount which was transferred from the account of PW17

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under Exhibit P67 transfer debit slip.

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It is clear from the evidence that

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appellant, while working as the Manager of Kalamassery Branch of Syndicate Bank, to avail a loan, with the help of PW5, persuaded PW6 to sign

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necessary papers and sanctioned a loan and thereafter, utilised the amount for his purpose. It is for discharging the said liability, amount was transferred from the account of Madhusoodanan, even

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though Madhusoodanan has nothing to do with that account as the account in the name of Madhusoodanan was also created by the appellant himself. The loan amount sanctioned to Sasidharan Nair was utilised to transfer it to the account of Madhusoodanan, which, in turn, was used to clear the liability in the name of PW6. In the light of the evidence, learned Special Judge was justified in finding that appellant forged the records and misappropriated the amount.

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Evidence of PW3 with Exhibits P39 to P43,

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the records relating to the Savings Bank Account in the name of Geetha, with Exhibits P100 to P107, the

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documents relating to the loan sanctioned in the name of Geetha, establish that a Savings Bank Account was opened in the name of Geetha under

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Exhibit P39 Savings Bank account Opening Form. It was the appellant, who introduced Geetha to the Bank to start the account. Exhibit P42 cheque was issued in that account. That cheque was passed by the appellant and he counter signed it with an endorsement 'please pay the cash'. Hence, the

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amount was paid to the appellant. Exhibit P100 is

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the loan application in the name of Geetha. Evidence of PW10, the Assistant Manager of the

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Bank, shows that Exhibit P100 application was filled up in the handwriting of the appellant and

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the appraisal of the application was also conducted by the appellant. Appellant sanctioned a loan of

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Rs.25,000/-. As provided in the application, he

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prepared Exhibits P101 to P105, the loan documents. All those documents were entrusted to PW10 by the appellant, without the signature of the applicant, with an instruction to fill up the documents. Therefore, PW10, with reference to Exhibit P100 application, filled up the loan documents. According to PW10, he did not see Geetha, the loanee or the co-obligant. According to PW1, the loan amount was credited to the Savings Bank Account in the name of Geetha under Exhibit P44 voucher. It was also prepared by PW10. Exhibit P106, the debit slip, was also prepared by PW10. It was sanctioned by the appellant. Exhibit P107, the ledger extract of that loan account, show that Rs.25,000/-, debited in the account, was withdrawn under Exhibit P42 cheque for Rs.24,500/- on 25.6.1994 and the cheque was written in the handwriting of the appellant and PW3 passed the said cheque.

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Evidence of PW3 shows that it was under

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Exhibit P39, the account opening form, a Savings Bank account was opened in the name of Geetha. The application was filled up in the handwriting of the appellant. Appellant himself introduced that customer to the Bank. Appellant has also signed as the person who introduced her. The specimen signatures are also in the handwriting of the appellant. Exhibits P39 and P40 were entrusted to PW3 by the appellant, with a direction to open an account. As there was no entry with regard to the introducer, PW3 pointed out that account cannot be opened without the signature of the introducer. Appellant then affixed his signature as the person who introduced her to the Bank. Exhibit P41 initial deposit was also made by the appellant. When PW3 enquired about the account holder for opening the account, appellant stated that she would be coming after lunch and at that time, a photograph of Geetha would be entrusted. PW3 had not seen that

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photograph at all and had seen it for the first time when it was shown to the witness from the box as available in Exhibit P39. PW3 also deposed that Exhibit P42 cheque was entrusted by the appellant after writing it in his own handwriting, for debiting from the account of Geetha. PW3 passed the same with reference to the specimen signature furnished by the appellant, who also signed in it. Appellant recorded “please pay the cash” therein. Exhibit P43 account shows that the amount was also debited. Evidence of PW38 with Exhibit P133 establish that the loan application submitted in the name of Geetha as well as the loan documents

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and Exhibit P42 cheque, by which an amount of Rs.24,500/- was withdrawn, are all written and signed by the appellant.

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Argument of the learned counsel appearing

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for the appellant is that as the photograph of Geetha was furnished and the person, whose photograph was there in the application, was not

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traced out by CBI, when there is a photograph, it is not possible to hold that Geetha is a fictitious person. It was argued that no proper step was taken to procure the presence of Geetha and in the light of the evidence, it cannot be said that Geetha is a fictitious person. Argument is that if Geetha is real and so long as she has not denied the signatures in the material documents, it cannot be said that there is any forgery. True, a photograph is seen enclosed in the Savings Bank Account opening form. It is also true that prosecution could not trace out the person, whose photograph was there. But, the question is whether the evidence adduced establish that Geetha, the account holder, had either applied for loan or availed loan. Evidence conclusively establish that Savings Bank Account was opened at the instance of the appellant. It was the appellant who introduced Geetha to the Bank. Evidence of PW3 with Exhibit P133 and evidence of PW38 establish that the

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handwriting and the signature in the loan application as well as in the account opening form and Exhibit P42 cheque are all in the handwriting of the appellant. It is, therefore, clear that it is the appellant who forged the records to sanction a loan of Rs.25,000/- in the name of Geetha and also received that amount under Exhibit P42 cheque, though the cheque is purported to be issued by Geetha. Evidence of PW10 also establishes that Geetha never appeared before the Bank. In the light of the evidence, learned Special Judge was justified in finding that appellant forged the records relating to the Savings Bank Account and the loan account in the name of Geetha and also misappropriated the loan sanctioned to said Geetha.

¶181

Evidence of PW19, the Clerk of Alappuzha Branch of the Bank, establishes that when a Savings Bank Account in the name of Rita Reghunadhan was opened, he was the Clerk and though he had made the entries in Exhibit P48 ledger, he did not see the

¶182

CRA 147 & 159/99

¶183

¶184

said Rita and it was based on Exhibit P48, he opened the account. Evidence of PW3 shows that Rita was introduced to the Bank by the appellant. PW3 attested the signature in Exhibit P45 account opening form at the instance of the appellant and that application was sent to PW3 by the appellant. Exhibit P47 initial deposit voucher was prepared in the handwriting of the appellant. As seen from Exhibit P48, Rs.100/-, covered by Exhibit P47 credit slip, was credited to that account. On 21.12.1994, Rs.7,500/- was credited to that account. Evidence of PW10 shows that Exhibit P80,

¶185

the loan application in the name of Rita, was prepared in the handwriting of the appellant. The appraisal was also conducted by the appellant. The loan was also sanctioned by the appellant. Exhibits P81 to P84, the loan documents, were also prepared by the appellant and the loan amount of Rs.25,000/was paid as cash under Exhibit P85 debit slip and it was prepared in the handwriting of PW10, as

¶186

CRA 147 & 159/99

¶187

¶188

instructed by the appellant. Normally, only the cash in that account would be disbursed. Though Rs.25,000/- was paid in cash, it was done at the instance of the appellant. According to PW10, appellant told her that Rita is his sister-in-law

¶189

and she cannot come to the Bank on that day and the

¶190

responsibility is on the appellant and he is prepared to sign the same and therefore, on the reverse side of Exhibit P85, appellant signed and at that time, nothing was written there, when it

¶191

was shown, PW10 deposed that it is now seen recorded that please pay the cash and the amount was paid in cash to the appellant as instructed by

¶192

him. Evidence of PW11 also establishes that appellant had disclosed to her that Rita is his relative and it is for that reason, she did not

¶193

insist for the presence of Rita and instead,

¶194

considering the urgent situation, allowed to pay the amount in cash. Even though Exhibits P80 to P85 were examined by PW38, the expert, the signature of

¶195

CRA 147 & 159/99

¶196

¶197

Rita seen in Exhibit P80 application, which was marked as Q105 by the expert or in Exhibit P82, marked as Q108 by the expert or in Q110 to Q124, were not found to be in the handwriting of the appellant for the reason that the said writings were deliberately drawn and therefore, no definite opinion could be arrived at. But, even without the evidence of the expert, it is clear that the account in the name of Rita was opened at the instance of the appellant who introduced her to the Bank and the loan application was also filled up at the instance of the appellant and the amount was also appropriated by the appellant, as the amount was paid in cash to the appellant, which could not have been paid otherwise as instructed by the appellant.

¶198

Learned counsel appearing for the appellant argued that there is no conclusive evidence to prove that all these loanees are fictitious persons and especially when photograph of one of the

¶199

CRA 147 & 159/99

¶200

¶201

loanees Geetha is available and the Investigating Officer did not make sufficient attempt to trace that person and therefore, it is not proved that appellant committed forgery. Evidence establish that Bank had issued notices to all the loanees, which were returned with the endorsement 'no such

¶202

addressee'. Evidence of PWs 10, 27, 30 and 39 establish these facts. Evidence of PWs 25, 26, 29, 30, 31 and 8, the postmen, establish that Exhibits P78, P79, P95 and P117 notices addressed to Ramesh Kumar were returned with the endorsement 'no such addressee'. Evidence of PWs 25 and 32 establish that Exhibits P96 and 97 notices issued in the name of K.J.Joseph were also returned with the endorsement 'no such addressee'. Evidence of PWs 2, 10, 13, 25, 26, 27 and 39 also establish that Exhibits P108, P118 and P120 notices sent from the Bank to Geetha were also returned with the

¶203

endorsement 'no such addressee'. Evidence of PWs 10, 13, 27, 34, 35 and 38 with Exhibits P125 to

¶204

CRA 147 & 159/99

¶205

¶206

P127 also establish that the notices sent to Rita were also returned with the endorsement 'no such addressee'. Evidence, therefore, establish that all these loanees were not real persons. Though learned counsel, relying on the judgments in the suits (Exhibits D5 to D9), where under, one of the suits

¶207

was dismissed as not pressed and others were decreed, argued that the loanees are not fictitious persons as canvassed by the prosecution, on the evidence, I cannot agree with the submission. Exhibits D5 to D9 establish that the summons in all the suits were personally served on the loanees. Therefore, for the reason that decree was passed ex parte, it cannot be said that summons were served on the defendants. Evidence establish that appellant personally introduced those loaness and

¶208

had also taken active part in getting the loan applications filled up and also sanctioned the loans. In such circumstances, if none of them are fictitious persons, but real persons, appellant

¶209

CRA 147 & 159/99

¶210

¶211

could have at least examined them as his witnesses at the defence evidence stage and disproved the entire case. On the evidence, learned Special Judge rightly found that they are fictitious persons. In such circumstances, I find no reason to interfere with the finding of the learned Special Judge that appellant committed offences under Sections 409, 465 and 471 of Indian Penal Code and Section 13(1)(c)(d) read with Section 13(2) of Prevention of Corruption Act.

¶212

Then the only question is regarding the sentence. Learned counsel appearing for the appellant submitted that appellant is now aged 64 years and out of the misappropriated amount, appellant paid a major portion and in such circumstances, leniency may be shown. It is also argued that though two cases were charged, they were in respect of the same period, when appellant was working as the Manager of Syndicate Bank, Alappuzha Branch and both the cases were jointly

¶213

CRA 147 & 159/99

¶214

¶215

tried on an application filed by the appellant without any objection from the prosecution and in such circumstances, it is not in the interest of justice to direct that sentences in both the cases to run consecutively and instead, it should have been concurrently and therefore, the sentence be modified.

¶216

Learned Special Judge awarded a sentence of rigorous imprisonment for a period of three years and a fine of Rs.5,000/- for the offence under Section 409 of Indian Penal Code, rigorous imprisonment for one year and a fine of Rs.1,000/for the offence under Section 465 of Indian Penal Code, rigorous imprisonment for a period of one year and a fine of Rs.1,000/- for the offence under Section 471 of Indian Penal Code and rigorous imprisonment for a period of three years and a fine of Rs.5,000/- for the offence under Section 13(2)

¶217

of Prevention of Corruption Act. Though the substantive sentences were directed to be run

¶218

CRA 147 & 159/99

¶219

¶220

concurrently, the grievance is that separate sentence is awarded in each case and learned Special Judge also directed that sentences in each case shall run consecutively. Learned counsel argued that for the reason that appellant had paid a major portion of the misappropriated amount to the Bank, leniency is to be shown. On the facts, I cannot agree with the submission. Though appellant was charge sheeted for forgery and the misappropriation committed while he was working as the Manager of Alappuzha Branch of Syndicate Bank, it is clear from the evidence that he was doing the very same practices while he was working in Kalamassery Branch also. In fact, the amount granted as loan to the fictitious persons, while he

¶221

was working in Alappuzha Branch, was for discharging the liability created on such accounts, which were opened at his instance while he was working at Kalamassery Branch. Considering all

¶222

these aspects, I find that appellant is not

¶223

CRA 147 & 159/99

¶224

¶225

entitled to get leniency in the sentence awarded by the learned Special Judge. But, in the interest of justice, instead of undergoing the sentences in the two cases consecutively, it is proper to direct that sentences in both the cases shall run concurrently. To that extent, the sentence is to be modified.

¶226

Appeals are dismissed confirming the conviction and sentence with the modification that sentences in both the cases shall run concurrently. Learned Special Judge (SPE/CBI)-II, Ernakulam is directed to execute the sentence. Appellant is directed to appear before the court on 19.08.2010 .

¶227

14^th July, 2010 tkv

¶228

(M.Sasidharan Nambiar, Judge)

¶229

CRA 147 & 159/99

¶230

¶231

M.Sasidharan Nambiar, J.

¶232

¶233

Crl.A.Nos.147 & 159 of 1999

¶234

¶235

COMMON JUDGMENT

¶236

14^th July, 2010

N.P.Prabhu v. Central Bureau of Investigation

Case brief

What is this about?

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N.P.Prabhu v. Central Bureau of Investigation

Case brief

What is this about?

What did the court decide?

What the court decided

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