Crl.MC. against second accused for misuse of forged documents and loan fraud. Court dismissed petition; payment of dues does not quash prosecution as public interest requires accountability for cheating a state bank.
Criminal miscellaneous case dismissed; proceedings against petitioner to continue untrammelled by this order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933
Crl.MC.No. 1365 of 2010()
------------------------------------CC.NO.13/2005 OF SPECIAL JUDGE SPE/CBI COURT-1, ERNAKULAM
PETITIONER(S): 2ND ACCUSED.
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GOPAKUMAR B.NAIR, S/O. LATE N.BALAKRISHNAN NAIR, PRESENTLY RESIDING AT ROOM NO.III, SILVER SAND COMPLEX, TRIVANDRUM 36 PERMANENTLY RESIDING AT T.C.5/2560, GOLF LINK ROAD KAWADIAR, TRIVANDRUM - 30.
BY ADV. SRI.T.A.SHAJI
RESPONDENT(S): COMPLAINANT.
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1. CBI/SPE, REP.BY ADDL.SUPERINTENDENT OF POLICE, CBI/SPE, THIRUVANANTHAPURAM.
2. THE INDIAN OVERSEAS BANK, KILLIPALAM BRANCH, THIRUVANANTHAPURAM, REPRESENTED BY ITS SENIOR MANAGER.
R1 BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. R2 BY ADV. SRI.P.B.SURESH KUMAR, SC,I.O.BANK
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
CRMC.NO.1365/2010
APPENDIX
PETITIONER'S ANNEXURES:
ANNEX-A: COPY OF THE CHARGE SHEET DATED 21/7/2005 IN RC.27(A)/2004.
ANNEX-B: COPY OF THE MEMO OF EVIDENCE AND THE STATEMENTS OF 20 WITNESSES.
ANNEX-C: COPY OF THE LIST OF DOCUMENTS.
ANNEX-D: COPY OF THE JUDGMENT DATED 10/3/2005 IN WP(C)NO.7422/2005 OF THIS HON'BLE COURT.
ANNEX-E: COPY OF THE LETTER DATED 30/3/2009 ISSUED BY THE 2ND RESPONDENT BANK.
RESPONDENT'S ANNEXURES:
NIL
/TRUE COPY/
P.A.TO.JUDGE
sts
THOMAS P JOSEPH, J.
Crl.M.C.No.1365 of 2010
Dated this 21st day of June, 2011
ORDER
Petitioner is the second accused in C.C.No.13 of 2005 of the Court of learned Special Judge for CBI cases, Ernakulam (for short, "the Special Judge”) for offences punishable under Secs.420, 471 and 120B of the Indian Penal Code (for short, "the IPC”) and Secs.13(2) and 13(1)(d) of the Prevention of Corruption Act (for short, "the PC Act”). The first accused was Manager of the Indian Overseas Bank, Thiruvananthapuram branch (for short, "the Bank”) and the third accused, its approved valuer (I am told that the third accused is no more). The charge in short is that petitioner/second accused hatched up a conspiracy with accused 1 and 3 and obtained loan from the Bank on the strength of forged documents. As per the final report submitted by the CBI, it is alleged that petitioner availed a loan of .5,00,000/from the Bank for purchase of a car on the strength of a forged agreement for sale. The further allegation is that petitioner who then was undergoing study with the SAE Technology College (for short, "the College”) availed an educational loan of .4,00,000/from the Bank and produced two forged receipts in the Bank
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claiming that the same were obtained from the said College (for a total sum of .1,60,000/-) while the actual payment made by petitioner in the College was only .47,500/-). The third allegation is that a fraudulent certificate of valuation (prepared by the third accused) showing inflated value of property of petitioner offered as collateral security was made use for the purpose of securing a cash credit facility. After the case was registered, petitioner wanted to make use of the one time settlement scheme with the Bank and pay the entire amount due to it. Since the Bank was reluctant in that regard since the CBI had registered the case against petitioner and others, petitioner approached this court with W.P(C).No.7422 of 2005 and obtained a direction to the Bank to receive the amount subject to certain riders. Accordingly petitioner paid the entire amount due to the Bank. Request of petitioner is to quash proceeding against him with two grounds; that allegations do not constitute any offence as alleged, and; secondly, the entire amount is paid to the Bank and hence proceeding need not continue. Learned counsel has placed reliance on the decision of the Supreme Court in Nikhil
Merchant Vs. Central Bureau of Investigation (2008)3 KLT
769). Learned Standing Counsel for the CBI has contended that
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notwithstanding that petitioner has discharged liability of the Bank and as such, no civil liability existed, the CBI may be allowed to proceed with the case which involved forgery of documents and its dishonest use. According to the learned Standing Counsel, a public sector undertaking has been cheated by petitioner with the connivance of its own then Manager and approved valuer making use of the forged documents. It is contended that in such situation, interfering with the prosecution would affect the society at large and would give a wrong message to wrong doers. It is also submitted by learned counsel that decision referred supra has been explained in a later decision in Sushil Suri Vs. CBI and Anr. (2011(1) KLD 760) .
.5,00,000/- from the Bank and according to the petitioners, he paid .5,25,000/- for the purchase of the car. In the disputed agreement for sale, value of the vehicle was shown as `.6,65,000/- (since as per the scheme of the Bank, it could advance only 80% of the total value of the car). The disputed agreement was sent to the expert for opinion and the expert afterCrl.M.C.No.1365 of 2010
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comparison of signature in the disputed agreement with the specimen signature of the person who is said to have executed that document has come to the conclusion that the signature in the disputed agreement is a forgery. That opinion of the expert prima facie indicate that the document made use of by the petitioner to avail loan for the purchase of car is a forged document coming within the definition of Secs.464 of the IPC. I do not forget that petitioner has an explanation how he got possession of the said document. That is a defence which petitioner has in the course of trial. Petitioner has also an argument that in so far as there is no charge under Sec.468 of the IPC and in the absence of any dishonest intention, petitioner cannot be made liable for offence under Sec.471 of the IPC which I will advert to a little later.
.4,00,000/- was sanctioned to the petitioner in connection with his education. It is also not disputed that petitioner produced two receipts for a total sum of .1,60,000/- allegedly issued from the College before the Bank and got release of the said sum of `.1,60,000/-. Learned counselCrl.M.C.No.1365 of 2010
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has invited my attention to the letter dated May 16, 2003 issued from the College where it is stated that the said receipts are absolutely authentic. But in the course of investigation witness No.11, Controller of Accounts of the College came with a statement (said to be given to the Investigating Officer) referring to the letter dated May 16, 2003 that though it was stated in the said letter that the receipts are authentic, subsequent examination of records (of the College) revealed that receipts for .1,60,000/- are fictitious. The witness is also seen to have stated that as against the sum of .1,60,000/- mentioned in the said receipts, the amount actually paid by petitioner on the relevant dates was only .47,500/-. It is further stated by the witness that the receipts are not issued from the College (details of the statement are given in page 36 of the paper book) and it was got printed elsewhere. In short, going by the said statement of the witness, the impugned receipts were not issued from the College wherefrom petitioner purports to have obtained it and a much inflated sum than what was actually paid by petitioner in the College is mentioned in the said receipts. It is not disputed before me that on the strength of the said receipts, petitioner obtained release of .1,60,000/- from the Bank.
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.18,00,000/- while witness No7, a Retired Executive Engineer from the Kerala PWD through him the CBI officials got the said property assessed, stated its value as around .8,00,000/-, at the rate of `.24,000/- per cent (market value). Learned counsel has contended that the said statement of witness No.7 cannot be accepted at all since he has simply given his opinion about the land value without referring to any material document. It is also pointed out that the said witness was about 85years at the relevant time and hence his assessment need not be proper (learned counsel submitted that the said witness is suffering from Alzheimers).Crl.M.C.No.1365 of 2010
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the statement of witness No.11 attached to the college that those receipts are not printed by the said college, no such receipts have been issued from that college and no such amount of `.1,60,000/was received on the dates mentioned in the receipts.
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Crl.M.C.No.1365 of 2010
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decision of the Supreme Court delivered on May 06, 2011 in Sushil Suri Vs. CBI and Anr.(supra) states that the decision in Nikhil Merchant Vs. Central Bureau of Investigation (supra) is based on the particular facts of that case. The Supreme Court observed in paragraph 20:
“A bare reading of the afore-extracted paragraphs would indicate that the question posed for consideration in that case was with regard to the power of this Court under Article 142 of the Constitution of India to quash the criminal proceedings in the facts and circumstances of a given case and not in relation to the powers of the High Court under Sec.482 of th Cr.P.C. The Court came to the conclusion that it was a fit case where it should exercise its powers under Article 142 of the Constitution. In our opinion, Nikhil Merchant (supra) does not hold as an absolute proposition of law that whenever a dispute between the parties, having overtones of a civil dispute with criminal facets is settled between them, continuance of criminal proceedings would be an exercise in futility and, therefore, should be quashed. Similarly, in B.S Joshi and Ors. (Supra), which has been relied upon in Nikhil Merchant (supra), the question for consideration was whether the High Court in exercise of its inherent powers can quash
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criminal proceedings or FIR or complaint for offences which are not compoundable under Sec.320 of the Cr.P.C. It was held that Sec.320 cannot limit or affect the powers of the High Court under sec.482 of the Cr.P.C, a well settled proposition of law. We are of the opinion that Nikhil Merchant (supra) as also the other two judgments relied upon on behalf of the appellant are clearly distinguishable on facts. It needs little emphasis that even one additional or different fact may make a world of difference between the conclusions in two cases and blindly placing reliance on a decision is never proper.”
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With the above observations, this criminal miscellaneous case is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-
3 issues framed by the court
Whether the payment of the entire loan amount by the petitioner and settlement of civil liability is a ground to quash criminal proceedings for cheque fraud and forgery under Sec.471 IPC.
Whether the decision in Nikhil Merchant mandates quashing of the present proceedings where a public sector bank was cheated of a public sector undertaking.
Whether the trial court can adjudicate the question of dishonest intention regarding forged documents under Sec.471 IPC.
Colour shows how this judgement treated each authority
3 provisions across 3 enactments
GOPAKUMAR B.NAIR
CBi/SPE (The Indian Overseas Bank)
THOMAS P.JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court