Partly allowed

Georgekutty Kurian v. State of Kerala

Kerala HC31 May 2016CRL.A/109/2008

Case brief

AI extract

What is this about?

Appeals by three accused convicted in a bank letter of credit fraud. The court acquitted the bank manager holding that procedural irregularities without proof of dishonest intention did not attract the Prevention of Corruption Act, while confirming the conviction of the other two accused for criminal conspiracy, using false documents and cheating the bank.

What did the court decide?

Conviction and sentence of the first accused set aside and he was acquitted, fine if remitted to be refunded; conviction and sentence of accused 3 and 4 confirmed and their appeals dismissed.

Georgekutty Kurian Vs State of Kerala — Corruption | Kerala HC (2016)

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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 K.RAMAKRISHNAN

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TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938

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CRL.A.No. 109 of 2008 ( )

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AGAINST THE JUDGMENT IN CC 10/2005 of SPL.C SPE/CBI-II, ERNAKULAM DATED 08.01.2008

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APPELLANT/1ST ACCUSED:

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GEORGEKUTTY KURIAN,S/O. LATE M.J. KURIAN, PUTHUSSERIL HOUSE, VAZHAPPALLY WEST P.O., CHANGANASSERY, KERALA.

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BY ADVS.SRI.GRASHIOUS KURIAKOSE (SR.) SRI.T.T.RAKESH

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RESPONDENT/COMPLAINANT:

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SPE/CBI, KOCHI.

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R, BY ADV. SRI.S.SREEKUMAR, SC FOR CBI R, BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. R1 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. R1 BY SRI.NAGARESH,ASSISTANT SOLICITOR GENERAL OF INDIA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.3.2016 ALONG WITH CRA. 127/2008& CRA. 162/2008, THE COURT ON 31-05-2016 DELIVERED THE FOLLOWING:

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K. RAMAKRISHNAN, J.

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.................................................. Crl.A.Nos.109, 127 & 162 of 2008 ....................................................... Dated this the 31^st day of May, 2016.

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JUDGMENT

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The first accused in C.C.No.10/2005 on the file of the

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Special Judge, (SPE/CBI No.II, Ernakulam) is the appellant in Crl.A.No.109 of 2008, while the 4^th accused in the same case is the appellant in Crl.A.No.127 of 2008 and Crl.A.No.162 of 2008 was filed by the third accused in the same case. Since all these cases arose out of the same judgment, I am also disposing of these appeals by a common judgment. I am referring to the status of the parties as in the lower court for the purpose of convenience in these appeals.

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The appellants along with the second accused K. Shahir Shaw, the Managing Partner of Shaw Cashew Company Ltd, Thiruvananthapuram were charge sheeted by the Inspector of Police, Central Bureau of Investigations (hereinafter referred to as the CBI for short) in R.C.No.18A/98/CBI/Kochi alleging offences under sections 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the P.C. Act for short) and sections 120 B , 420, 468 and 471 of the Indian Penal Code.

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The case of the prosecution in nutshell was that the

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Crl.A.Nos.109, 127 & 162 of 2008

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first accused Sri. Georgekutty Kurian was working as the Assistant Manager Credits in Bank of India, Quilon branch and he was in charge of the Manager of the said Bank from 2.3.1998 to 6.3.1998.The second accused Shahir Shaw was the Managing Partner of M/s. Shaw Cashew Company, Thiruvananthapuram doing business in procuring cashew kernels and exporting the same. The third accused Jayakumar was said to be the proprietor of M/s.K&M Manufacturers and Exporters, and having its office at Mumbai and he is a resident of Quilon. The 4^th accused Ramakrishnan was the Senior Vice President of M/s. Fedex Security Limited, Mumbai. The second accused was having banking transaction with Bank of India, Quilon branch availing credit facilities such as cash credit hypothecation, cash pledge, letter of credit etc., for and own behalf of M/s. Shaw Cashew Company Ltd. During the first week of March 1988, the first accused hatched a criminal conspiracy with accused 2 to 4 to deceive the bank for the purpose of obtaining cash credit by opening and discounting an inland letter of credit. On account of the conspiracy hatched, in order to facilitate the second accused to get the letter of credit, the third accused prepared some false and fabricated sale contract papers acting for M/s. K&M Manufacturers and Exporters, Mumbai, a non existing concern agreeing to supply 270 metric tones

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Crl.A.Nos.109, 127 & 162 of 2008 3

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of raw cashew kernels to M/s. Shaw Cashew company of which the second accused was the managing partner and the second accused in pursuance of the common intention hatched on account of the aforesaid criminal conspiracy, dishonestly submitted false contract papers, Bill of exchange, sale letter, invoices, packing list etc., falsely created by the third accused knowing that they are false documents with the dishonest intention of procuring some inland letter of credit facility from the bank, submitted an application to open an inland letter of credit for Rs.81 lakhs favouring M/s. K&M Manufacturers and Exporters, Mumbai and the first accused, on account of the criminal conspiracy hatched and with a view to help the second accused to get facility, misusing his official position as public servant of the bank by corrupt and illegal means in order to obtain pecuniary advantage to the second accused knowing that the documents submitted by the second accused are false documents and also knowing the object of the second accused in procuring the facility and without observing the required formalities and terms and conditions while granting the inland letter of credit facility like production of shipping documents, way bill etc, deceitfully included conditions favouring the second accused as goods received in good condition knowing fully well that there was no supply of contract of

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Crl.A.Nos.109, 127 & 162 of 2008 4

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raw cashew kernels against the aforesaid inland letter of credit, sanctioned the letter of credit for Rs.81 lakhs and after sanctioning the facility, handed over the letter of credit to the 4^th accused Ramakrishnan who was an instrumentality for providing a loan of Rs.70 lakhs using his position as Senior Vice President of Fedex Securities, Mumbai to the second accused for getting the facility and he had using the documents discounted the same for an amount of Rs.74,57,050/- from Corporate Banking Branch, Fort Road Branch and fraudulently got the amount credited into the account of M/s. K&M Manufacturers and Exporters, Fort Road Branch, Mumbai using the signed blank cheque leaves of M/s.K&M Manufacturers and Exporters given by the third accused for this purpose and paid an amount of RS.71,75,000/- to M/s.Fedex Securities and obtained Rs.1,75,000/- for himself, Rs.41,000/- to one Anand Sharma and Rs.44,225/- for the third accused and another Rs.10,000/- in the account of M/s. K&M Manufacturers and Exporters Ltd., and the second accused did not pay the amount devolved on by the letter of credit within the time specified and thereby caused a loss of Rs.43,80,895.54 to the bank and thereby all of them have committed the offences punishable under section 120 B of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the P.C. Act and

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Crl.A.Nos.109, 127 & 162 of 2008 5

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sections 420, 468 and 471 of the Indian Penal Code. PW50 registered the above crime in terms of the orders of the Superintendent of Police, C.B.I, Kochi on the basis of the reliable information received regarding the irregularities committed in the issue of Letter of Credit to the second accused by the first accused and others and he conducted investigation and filed final report after obtaining sanction from the authorities as against the first accused for prosecuting him for the offences under the P.C. Act and the Indian Penal Code and the case was taken on file as C.C.No.10/2005 on the file of the Special Judge, Ernakulam and it was made over to the Special Judge, SPE/CBI No.II, Ernakulam for disposal.

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When the accused appeared before the court below, after hearing both sides, the Special Judge, SPE/CBI No.II, Ernakulam framed charge under sections 120 B read with section 13 (2) read with section 13(1)(d) of the P.C. Act and sections 420, 468, 471 of the Indian Penal Code against the accused apart from framing independent charges against accused 1 to 4 for the offences under section 420 of the Indian Penal Code and against the first accused for the offence under section 13(2) read with section 13(1)(d) of the P.C. Act and against the third accused for the offence under section 468 of the Indian Penal Code and against accused 1 and 4

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Crl.A.Nos.109, 127 & 162 of 2008

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for the offences under section 468 and section 471 of the Indian Penal Code and the same was read over and explained to them and they pleaded not guilty.

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In order to prove the case of the prosecution, Pws 1 to 50 were examined and Exts.P1 to P161 and Mos 1 and 2 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused were questioned under section 313 of the Code of Criminal Procedure (hereinafter referred to as the Code for short) and they denied all the incriminating circumstances brought against them in the prosecution evidence. The first accused had stated that he had opened Ext.P8 letter of credit in good faith and in all bonafides exercising his power and authority as Assistant Manager, advance section of the bank in charge of the Manager of the bank at the relevant time, as is the custom prevailing in the banking transaction in opening inland letter of credit in such cases and there was no loss caused to the bank as the entire amount covered by Ext.P8 letter of credit has been remitted by the second accused with interest and since Ext.P8 was issued as letter of credit opened on DA terms, bank was not expected to insist for documents relating to supply of contracted goods. Further, he had no acquaintance with accused 3 and 4. He knew the second accused

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Crl.A.Nos.109, 127 & 162 of 2008 7

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as partner of M/s. Shaw Cashew Company, Attingal, Thiruvananthapuram, who was a customer of the bank and he was having lot of securities and obtained other facilities in the bank and having regular business transaction. He had only in good faith issued Ext.P8 letter of credit as has been done on previous occasions in favour of the second accused for obtaining similar facility and there was no conspiracy hatched as alleged. The second accused had stated that the banking business of M/s. Shaw Cashew Company was not carried out by him and he was not a party to the conspiracy and PW5 Manager had obtained singed application and submitted the same for issuance of letter of credit and obtained letter of credit and forwarded the same in the usual course of business to the bank and he has no direct participation in the transaction. The third accused had stated that he happened to open the account in the name of Klen and Marshal in Fort Branch, Mumbai under the instructions of PW14, Madhavan, and he made him believe that he had major share in the said concern. He had also offered that if he made transaction for the above said company, he will provide one percentage commission for the same. The entire transaction involved in the issuance of letter of credit and discounting the same were carried out under the instructions of PW14 and also under the

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Crl.A.Nos.109, 127 & 162 of 2008

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directions of one Ananda Sharma, who was an agent of the said Madhavan, and he had no role in the transaction. He had only handed over the documents as instructed by PW14, Madhavan and Anand Sharma and he was not aware of preparation of these documents and submission of the same to the bank. He never went to the bank for that purpose. So he had not committed any offence. The 4^th accused had submitted that he had proceeded to Quilon on 4^th March, 1998 and collected letter of credit and related documents from M/s. K&M Manufactures and Exporters for discounting the same at Mumbai as an employee of Fedex Securities, Mumbai, as directed by PW14, the Chairman of the concern. As instructed by PW14, he obtained blank cheque leaves of M/s. K&M Manufactures and Exporters to enable Fedex Securities to recover loan amount with interest along with commission, brokerage and other charges. The decision to extend loan to M/s Shaw Cashew Company and to arrange discounting of bills under letter of credit in favour of M/s.K&M Manufactures and Exporters was made by Fedex Securities Ltd., even prior to the 4^th accused going to Kollam to collect the document and he had acted only under the directions of PW14, the Chairman of Fedex Securities Ltd., and he was not aware of the genuineness of the documents produced by the second

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Crl.A.Nos.109, 127 & 162 of 2008

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accused with the bank and he had not hatched any conspiracy with any of the accused persons as he had no prior acquaintance with any of the accused persons. Dws 1 and 2 were examined on the side of the first accused and Exts.D1 to D3 were marked on his side. They were examined for the purpose of proving the fact that the entire amount due from M/s. Shaw Cashew Company, Attingal Thiruvananthapuram was liquidated on one time settlement and also to prove the difference in procedure relating to issuance of letter of credit on DA terms and DP terms. DW2 was the Manager of the bank in whose absence the first accused had acted and issued letter of credit to the second accused, had deposed that as in the case of letter of credit issued on DA terms, the conveyance receipt of goods need not be obtained and it need not be produced along with the opening of letter of credit. He had supported the stand taken by the first accused on this aspect. But he had admitted that during his tenure as Manager, he never handed over the letter of credit to the party directly.

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During the pendency of the proceedings, the second accused died and this fact was recorded on the basis of the report submitted by the Public Prosecutor and charge against him stand abated. So the case was proceeded as against accused 1, 3 and 4

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Crl.A.Nos.109, 127 & 162 of 2008

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alone on a later stage. After considering the evidence on record, the court below found accused 1, 3 and 4 guilty for the offence under section 120 B read with section 13(2) read with section 13(1)(d) of the P.C. Act, 1988 and section 120 B read with section 420, 468 and 471 of the Indian Penal Code and convicted them thereunder and sentenced them to undergo rigorous imprisonment for one year and also to pay a fine of Rs.25,000/- each in default to undergo rigorous imprisonment for three months each for each offence punishable under section 120 B, 13(2) read with section 13(1)(d) of the P.C. Act and section 420, 468 and 471 read with section 120 B and directed the substantive sentences to run concurrently. Aggrieved by the same, the above appeals have been preferred by the appellants/respective accused mentioned above.

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Heard Sri. M.K. Damodaran, senior counsel and also Sri.P.K. Ashokan, counsel appearing for the appellant in Crl.A.No.147/2008, who was the 4^th accused in the case and Sri.B. Raman Pillai, senior counsel appearing for the appellant in Crl.A.No.162/2008, who was the third accused in the court below and Sri. Gracious Kuriakose, senior counsel and Sri. Rajesh P.T, counsel appearing for the appellant in Crl.A.No.109/2008, who was the first accused in the court below and Sri. N. Nagaresh, the Assistant

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Crl.A.Nos.109, 127 & 162 of 2008

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Solicitor General of India, who represented the respondent in the appeal namely the Central Bureau of Investigation, Kochi and perused the documents.

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Counsel for the first accused, who is the appellant in Crl.A.No.109/08 submitted that he was only in charge of Branch Manager of the bank in the absence of DW2 for a short term namely from 2.3.1998 to 6.3.1998 and the second accused was a regular customer of the bank and he was a privileged customer of the bank as well, who was conducting export business in cashew. He had also having sufficient security in the bank for the purpose of availing cash credit hypothecation and letter of credit in connection with business transaction. Further since the amount in the current account was in debit more than the required limit, he had told that it was not possible for him to issue the letter of credit as claimed and it is thereafter that he had remitted Rs.70 lakhs in the account so as to bring the debit limit within the limit and he had submitted the necessary documents for the purpose of issuing letter of credit on DA terms, in such case the usual practice is not to insist for lorry receipts and it will have to be produced only before the advising bank, who has to honour the bill and since the bill was honoured by the advising bank, they have no other option but to pay the amount

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Crl.A.Nos.109, 127 & 162 of 2008

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covered by the letter of credit and he had not hatched any conspiracy so as to help any one. Further the fact that even before the final report was filed, the amount was deposited by the second accused with interest will show that no loss has been caused to the bank. So it cannot be said that on account of his act, any loss has been caused to be bank. Further merely because the amount was not paid by the customer within the time alone is not sufficient to come to the conclusion that he had connivance with the second accused for cheating the bank. There is no evidence to show that all the accused had met at any point of time so as to hatch conspiracy as claimed. Further he had also submitted that he had filed an application under section 391(1) of the Code to accept the additional evidence to mark those documents as Ext.D3 to D6. But the application could not be numbered as the documents were incomplete and they are neither original nor attested copies nor certified copies and so the application could not be allowed as well and the counsel for the appellant submitted that those documents were produced only for the purpose of perusal of the court as in the departmental enquiry, he was found guilty but only a minor punishment was imposed as in the enquiry it was found that it was only laches on the part of the Manger in not following the procedure and there is no criminal misconduct as such.

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Crl.A.Nos.109, 127 & 162 of 2008

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So the application was not considered and closed by this court along with the judgment. According to the learned senior counsel, there was no criminal misconduct so as to attract the offence under section 13(1)(d) read with section 13(2) of the P.C. Act against the first accused and if at all there was any laches, it is only a negligence on the part of the first accused in not complying the directions of the department in processing the application for letter of credit submitted by the second accused. So, according to him, the court below was not justified in convicting the appellant/first accused for the offence alleged.

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Learned senior counsel for the third accused submitted that the evidence will go to show that he is only a name lender and he was acting as per the directions of Anand Sharma and PW14, Madhavan, who were made him to open an account in Federal Bank, Mumbai in the name of M/s.K&M Manufacturers and Exporters on the representation made by them that if he helps them to promote business in Quilon, they will provide one percent commission for the same. Further the evidence will go to show that after opening the account in Mumbai bank, he never went to the bank and he had only given blank singed cheques to the 4^th accused as instructed by PW14 and the cheques were used by them without his consent and he did

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Crl.A.Nos.109, 127 & 162 of 2008

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not encash the letter of credit and that amount was not received by him as well. So without implicating the real accused persons in the case, he has been falsely implicated in the case to save the real accused persons. Further the court below was not justified in relying on the expert opinion alone for the purpose of coming to the conclusion that he was responsible for creating false documents which were submitted along with application for issuance of letter of credit in favour of the second accused. Most of the witnesses examined on the side of the prosecution to prove the conspiracy did not support the case of the prosecution. Further the evidence adduced from the side of the prosecution namely the bank officials of Mumbai will go to show that he had no direct involvement in the transaction of obtaining the letter of credit and encashing the same so as to infer any conspiracy with other accused persons in the transaction. The court below had not properly appreciated the evidence and wrongly convicted him for the offence alleged.

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Learned senior counsel appearing for the 4^th accused submitted that even as per the evidence, he was only acting as an employee or office bearer of the Fedex Securities Ltd., Mumbai which has granted loan to the second accused and he had come to Quilon as instructed by PW14 and collected the letter of credit, the

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Crl.A.Nos.109, 127 & 162 of 2008

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cheque leaves from the third accused and made arrangements for discounting of the letter of credit and allowed the amount to be paid by the Fedex Securities Ltd., paid to them. There is no evidence to show that there was at any point of time all these four accused persons have met together to hatch conspiracy as alleged by the prosecution. Further the investigating officer had not properly investigated the case. Even as per the First Information Report it was mentioned that a loss of Rs.81 lakhs was caused but when final report was fled, the loss was quantified as Rs.43,80,895.64. Further the First Information Report was registered against five accused persons including DW2 and the 4^th accused was not arrayed as accused at that time. He was arrayed as accused only a later stage when the final report was filed. Further the fact that the entire amount covered by Ext.P8 letter of credit with interest was paid by the second accused and the entire loan transaction was closed was not considered by the investigating officer before filing the final report. Further there is no evidence to show that either the second accused or the 4^th accused had got any intention to cheat the bank even at the time when the transaction was entered into between the bank and the second accused. Unless it is proved by the prosecution that even at the time when the second accused had the intention to

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Crl.A.Nos.109, 127 & 162 of 2008

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cheat the bank while obtaining the facility, it cannot be said that the offence under section 420 of the Indian Penal Code is attracted. If that be the case, any default made by a debtor cannot termed as cheating punishable under section 420 of the Indian Penal Code. The 4^th accused had only role to collect the amount from the second accused which was advanced to him by the Fedex Securities Ltd., Mumbai and as such it cannot be said that he had conspired with other accused persons in the absence of any evidence to show that at any point of time all these accused sat together and entered into an agreement to create false documents and obtained the facility so as to cause loss to the bank. The first accused as Manager of the Bank only issued the letter of credit in favour of the second accused who was a regular customer of the bank having several cash credit facilities and also having sufficient securities with the bank for that purpose. Further, it will be seen from the evidence that even on earlier occasions, letter of credit was obtained by the second accused from the bank on same conditions and it cannot be said that there was any irregularity in issuing the letter of credit as well. Further, it is also brought out in evidence that in exceptional cases the letter of credit will be handed over to the person in whose favour it was issued or on whose behalf it was issued or to an agent authorized by

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Crl.A.Nos.109, 127 & 162 of 2008

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such person and as such there is no irregularity in handing over the letter of credit to the 4^th accused as well. The 4^th accused had only helped the second accused and the third accused to get the amount after deducting the amount due to Fedex Securities Ltd., and as such no offence was committed by the 4^th accused and as he had not gained anything unlawfully in the transaction as such which is evident from the evidence of PW14 that he had only collected actual expenses incurred for going to Kollam and coming back to Mumbai. Under such circumstances, the court below was not justified in convicting the 4^th accused for any of the offences alleged. Further there was no forgery committed as well. No case for the prosecution that the signature of any of the persons have been forged by any of the accused persons. Even assuming that the contents of the document were not true, the documents submitted cannot be said to be a false document or a forged document as execution of that document was not denied by the third accused or the second accused. So under the circumstances, no offence under sections 468 or 471 of the Indian Penal Code is also attracted. According to him, the court below was not justified in convicting the 4^th accused for any of the offences alleged. He is entitled to get acquittal.

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On the other hand, Sri. N. Nagaresh, Assistant

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Crl.A.Nos.109, 127 & 162 of 2008

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Solicitor General of India, who was appointed to argue the case for the respondents submitted that it is not possible to prove conspiracy by direct evidence. It will be seen from the evidence that the 4^th accused had come to Kollam only for the purpose of collecting the letter of credit and to ensure that the amount advanced to the second accused has been properly credited. He is the Vice President of Fedex Securities Ltd., and it cannot be said that he was not aware of the transaction for which the amount was advanced. Further it will be seen from the evidence that as on the previous date of issuance of Ext.P8, there was overdue in the account and there was no possibility for the second accused to obtain any other facility without clearing the amount due. Further a bill issued in favour of a foreign concern was also due and second accused was aware of the fact that if the bill is not honoured, he will be black listed and so he wanted to avail a loan from the Fedex Securities and obtained the loan and credited the amount in his account so as to enable the bank to clear the foreign bill and was aware of the fact that if the foreign bill is cleared, there will not be amount within the limit to be sanctioned to the second accused and this fact was known to the first accused as well. It is not necessary that all the accused must join together to hatch conspiracy and meet together at one place and

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they can hatch conspiracy for the purpose of achieving the common object of the conspiracy by subsequently meeting together and it is not necessary that all must be part of the entire conspiracy and they can act in part for achieving the object of the conspiracy as well and that was what happened in this case. The first and second accused had conspired for the purpose of providing the facility by illegal means and for that purpose, the second and third accused conspired together and prepared false document and submitted the same as genuine document before the bank along with the application for issuance of letter of credit knowing that they are false documents and they are not going to be honoured by them but created only for the purpose of procuring the facility but for the same and the inducement made by the second accused using the false document, he could not have obtained the facility from the bank and thereby second and third accused have committed the offences punishable under sections 120B, 468, 471 and 420 of the Indian Penal Code. Knowing that they are false documents, such false documents were produced as genuine documents and letter of credit was obtained, the fourth accused collected the letter of credit and helped the second accused to get the letter of credit discounted from the bank and realized the amount due to Fedex Securities using the

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blank signed cheques obtained from the third accused knowing that no article has been obtained by the second accused as per the documents produced along with the application for getting the letter of credit and disbursed the amounts to several persons and thereby he had also actively participated in executing the object of the agreement entered into between the parties and achieving this purpose and so he cannot be said to be an innocent person as claimed by the counsel for the appellant and he can also be covered for the offence under section 120B, 468, 471 and 420 of the Indian Penal Code. Learned counsel also submitted that the conspiracy can be proved by circumstantial evidence and the attending circumstances and the evidence adduced from the side of the prosecution proved the chain of circumstances completing the chain so as to form only hypothesis that without the connivance of all the accused persons, the action intended by the second accused could not have been achieved and thereby the conspiracy is proved and once the conspiracy is proved, all the accused persons can be convicted for the offences alleged invoking section 120 B of the Indian penal Code. Further it is clear from the evidence that the second accused had no intention to use the amount for the purpose for which it was applied for and only on the basis of the inducement made by producing

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false document knowing that it is false document which was created with the help of the third accused, he obtained the facility and it was on the basis of the misrepresentation made by him that the facility was availed by him from the bank and the amount was not paid as agreed and only later when he came to know that a case was registered, subsequently remitted the amount as one time settlement not the entire amount but for a lesser amount the claim was closed which is evident from the evidence adduced on the side of the prosecution. So it cannot be said that there was no loss caused to the bank on account of the act of the accused. Further it will be seen from the evidence that knowing all these aspects that a false document has been produced and without following the procedure to be followed for issuing letter of credit, the first accused had also abusing his official position as Manager at the relevant time, issued letter of credit in favour of the second accused by illegal means without incorporating necessary conditions required for the same, which is evident from the fact that he was found guilty for not following the procedure in granting the letter of credit though the same contentions raised by him were raised before the disciplinary authority as well and as such he had also contributed his role in executing conspiracy hatched in order to help the second accused

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using illegal means and making some gain which he would not have obtained in the normal course but for the abuse of his official position in favour of the second accused. So the court below was perfectly justified in convicting all the appellants for the offences alleged and no interference is called for.

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The points that arise for consideration are:

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i. Whether the court below was justified in holding that accused 1 to 4 have conspired together and entered into an agreement for the purpose of getting a letter of credit in favour of the second accused by illegal means?

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ii. Whether the court below was justified in holding that in furtherance of their conspiracy hatched accused 2 and 3 have created false documents to be submitted along with the application for issuance of letter of credit for Rs.81 lakhs knowing that the documents produced along with the application are false documents as genuine documents with an intention to cheat the bank?

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iii. Whether the court below was justified in holding that the first accused in furtherance of the conspiracy hatched abusing his official position as bank Manager, a public servant, granted the letter of credit in favour of the second accused without complying with the procedure overlooking the procedure and directions issued by the department in this regard with the dishonest intention of helping the second accused to get the facility relying on the documents produced by him knowing that those documents are false documents in violation of the circulars and directions issued by the authorities in this regard?

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iv. Whether the court below was justified in holding that the accused No.4 in prosecution of the conspiracy hatched helped the second accused by providing a loan of Rs.70 lakhs and collected the letter of credit issued in favour of M/s.K&M Manufacturers and Exporters knowing that the

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documents produced along with the application for getting the facility were false documents and no such article has been purchased by the second accused from M/s. K&M Manufacturers and Exporters and helped the second accused to discount the bill and appropriated the amount due to Fedex Securities Ltd., Mumbai of which he was the Vice Chairman using the blank signed cheques obtained from the third accused, who is supposed to be the proprietor of K&M Manufacturers and Exporters, Mumbai, a non existing concern?

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v. Whether the court below was justified in holding that the accused persons have done all these things with a dishonest intention to cheat the bank, a Government institution and cause loss to the bank and cause unlawful gain to the second accused?

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vi. Whether the court below was justified in holding that the first accused had committed the offence punishable under section 13(1)(d) read with section 13(2) of the P.C. Act, section 120B and sections 420, 468 and 471 of the Indian Penal Code?

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Vii. Whether the court below was justified in holding that accused 2 to 4 have committed the offences punishable under sections 120 B, 420, 468 and 471 of the Indian Penal Code?

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Viii. If so, the sentence imposed is proper and legal?

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Points 1 to VI

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Before going to the facts of this case, let me consider the decisions relied on by both sides and the precedents on these aspects. In the decision reported in Rajeevan and Others v. Superintendent of Police, Cochin and Another (2011 (1) KHC 738), it has been held that even before the disbursal of the loan

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Crl.A.Nos.109, 127 & 162 of 2008

¶104

amounts, the loans were fully secured by collateral security and Senior Manager also a party who approved the loan and in such circumstances the intention of the Manager to cheat the Bank cannot be inferred and he cannot be convicted for the offence under section 13(1)(d) read with section 13(2) of the P.C. Act and sections 120 B, 420 and 468 of the Indian Penal Code. Further in the same decision it has been held that the allegation was that the accused while serving as the Manager of a Bank advanced loan to fictitious firms and it was held that a firm was in existence or not could be established only by examining appropriate persons and adducing reliable evidence by the prosecution. Mere fact that an address which was not known to the postman cannot be a reason for straightaway assuming that the firm was not in existence. In the same decision it has been held that when the loan was sanctioned on the strength of adequate collateral security and after conducting proper enquiries and pre sanction inspection on the strength of CRs and legal opinion on the recommendation of PW23, the Senior Manager of the Bank, it was not open to the prosecution to contend the first accused who was the Manager of the Bank had sanctioned the loan dishonestly and without proper verification. These facts are not applicable to the facts of this case as the circumstances mentioned in

¶105

¶106

Crl.A.Nos.109, 127 & 162 of 2008

¶107

that was established in this case by the accused.

¶108

In the decision reported in State of H.P v. Jai Lal

¶109

and Others (1999 SCC (Crl) 1184), it has been held that:

¶110

“Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the court has to form an opinion upon point of foreign law, or of science, or art or as to identity of handwriting and finger impressions, the opinions upon that point of persons specifically skilled in such foreign law science or art or in question as to identity of hand writing or finger impressions are relevant fact . Therefore in order to bring the evidence of witness as that of an expert, it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject .

¶111

15. It is further held in the same decision that:

¶112

“ An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge for form his independent judgment by the application of this interia /// to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the date and material furnished which form the basis of his conclusions”.

¶113

16. In the same decision it has been held that:

¶114

“The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face cross - examination”.

¶115

17. In the decision reported in Hazi Mohammad

¶116

Ekramul Haq v. State of W.B (AIR 1959 SC 488) it has been held

¶117

¶118

Crl.A.Nos.109, 127 & 162 of 2008

¶119

that if the evidence given by an expert is only an opinion unsupported by any evidence, then it is not safe to rely on the evidence of that expert to prove the fact sought to be proved through him.

¶120

In the decision reported in Bhupendra Nath Prasad v. State of Bihar (1992 SCC (Cri) 701), it has been held that in a case depending upon circumstantial evidence, all the circumstances should conclusively point towards the guilt of the accused. In that case even the cause of death has not been conclusively established and in such circumstances it has been held that if the cause of death has not been established conclusively, then the conviction entered is not proper.

¶121

In the decision reported in Madan Gopal Kakkad v. Naval Dubey and Another (1992 SCC (Cri) 598) it has been held that:

¶122

“A medical witness called in as an expert to assit the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted it is not the opinion of the medical officer but that of the Court”.

¶123

20 . This observation was made by the Supreme Court

¶124

¶125

Crl.A.Nos.109, 127 & 162 of 2008

¶126

relying on the dictum reported in Queen v. Ahmed Ally (1896 ) 11 Sutherland WR Cr 25) where it has been held that the evidence of a medical man or other skilled witnesses however eminent as to what he thinks may or may not have taken place and the particular combination of circumstances however confidently he may speak is ordinarily a matter of mere opinion. Further the Apex Court has relied on the decision reported in Pratap Misra v. State of Orissa (1977 (3) SC 41) for forming the above opinion where it has been stated that it is well settled that the medical jurisprudence is not an exact science and it is indeed difficult for any doctor to say with precision and exactitude as to when a particular injury was caused and as to the exact time when the appellant may had sexual intercourse with the prosecutrix.

¶127

In the decision reported in Govindan Lakshmanan v. Sarada Prema (1997 (2) KLT 437), this court has held that opinion of the handwriting expert being an experiential opinion, it must always be received with great caution. To act upon, it must be corroborated either by clear direct evidence or by clinching substantial evidence.

¶128

Further in the decision reported in Krishnan v. State of Kerala (1997 (2) KLT 445) this court has held that:

¶129

¶130

Crl.A.Nos.109, 127 & 162 of 2008

¶131

“Whenever there is a failure on the part of the prosecution to prove a charge of conspiracy it cannot be held that the other offences alleged to have been committed in pursuance of a conspiracy also have to be rejected. If the facts and circumstances prove an offence simplicitor without proving the charge of conspiracy the courts can accept those facts and circumstances and held that a person is liable to be convicted for the offence, which was committed, though according to the prosecution, in pursuance of a conspiracy. There can be no dispute that an offence of conspiracy is an independent offence and a failure by the prosecution to prove the offence of conspiracy will not automatically result in acquittal of the other offences. To maintain the conviction of the petitioners for the charges under Ss 471 and 420 read with S.34 IPC, a conviction under S.120 B IPC is not essential as they are independent of the offence of conspiracy. If the charge under S.471 IPC stands proved, on the facts and circumstances of the case, independent of the charge of conspiracy then the petitioners can be convicted for the said charge under S.471 IPC.

¶132

This view was confirmed by the Apex Court in the decision reported in

¶133

A.S.Krishnan and others v. State of Kerala (2004 (11) SCC 576).

¶134

In the decision reported in State v. Chaudhary (1996

¶135

(1) KLT 454(SC), the Supreme Court while considering the evidentiary value of opinion of a typewriter expert is admissible under section 45 of the Evidence Act relying on the meaning of the word science in the Oxford Encyclopedic English Dictionary, the New Shorter Oxford English Dictionary, Volume 2 and Collins Dictionary of the English Language held that:

¶136

“It is clear from the meaning of the word 'science' that the skill or technique the study of the peculiar features of a typewriter and the comparison of the disputed typewriting with the admitted typewriting on a particular typewriter to determine whether the disputed typewriting was done on the same typewriter is based on a scientific study of the two

¶137

¶138

Crl.A.Nos.109, 127 & 162 of 2008

¶139

typewritings with reference to the peculiarities therein; and the opinion so formed by an expert is based on recognized principles regulating the scientific study. The opinion so formed by a person having the requisite special skill in the subject therefore, the opinion of an expert in that branch of the science. Such an opinion is the opinion of an expert in a branch of science which is admissible in evidence under S.45 of the Indian Evidence Act.

¶140

Therefore there cannot be any doubt that if the opinion of an expert in typewriting about the questioned typed document being typed on a particular typewriter is based on a scientific study of the typewriting with reference to the significant peculiar features of a particular typewriter and the ultimate opinion of the expert is based on scientific grounds, the opinion of a typewriter expert is an opinion of a person specifically skilled in that branch of the science with reference to which the Court has to form an opinion on the point involved for decision in the case. In our opinion, on a plain construction of S.45 giving to the word 'science' used therein its natural meaning, this conclusion is inevitable; and for supporting that conclusion, it is not necessary to rely on the further reason that the word 'handwriting' in S.45 would also include typewriting”.

¶141

In the same decision the Supreme Court has relied on the passage in 'Questioned Documents', Second Edition, by Albert S.Osborn in the Chapter of “questioned typewriting' this aspect is considered and, therein at page 598 it is stated that:

¶142

“The principles underlying the identification of typewriting are the same as those by which the identity of a person is determined or a handwriting is identified. The identification in either case is based upon a definite combination of common or class qualities and features in connection with a second group of characteristics made up of divergences from class qualities which then become individual peculiarities”.

¶143

In 'Photographic Evidence' by Charles C.Scott, 2^nd Edition, Vol.1, under the heading “Typewriting – identity or non-identity of typing” it is stated thus:

¶144

“But even as the nationality of an individual may be perplexing but does not in any hamper the determination of this personal identity by means of his fingerprints, his handwriting, or other reliable indications, so also the fact that it is often difficult to determine the make of a typewriter used in typing a document does not lessen the reliability of the scientific determination that a

¶145

¶146

Crl.A.Nos.109, 127 & 162 of 2008

¶147

certain typewritten document was typed on a particular machine regardless of its make. By the use of the proper microscopes and test plates the document examiner often can determine the question and by the use of photographic comparison charts he can demonstrate his findings. Usually with unimpeachable certainty.

¶148

From a comparison of the typewriting on a document which is a subject of controversy with specimens known to have been made on a certain typewriter it is usually possible to determine whether or not that typewriter was used in typing the subject document, provided the subject document contains sufficient typewriting and the specimens from the known machine are of a suitable kind. This is true because every typewriter when it comes off the assembly line is an individual and writes exactly like no other typewriter. When a typewriter is brand new the differences between it and other typewriters coming off the assembly line at the same time are extremely minute and elusive, but theoretically at least there are identifying differences that can be discovered by microscopic examination and demonstrated photographically. Further more the more a typewriter is used the more individualistic it becomes and the easier it is to identify its typewriting. In some instances through overuse misuse or abuse a typewriter develops so many peculiarities that its typing can be identified readily with the naked eye.

¶149

In 'Law of disputed and Forged Documents' by J.Newton Baker, while dealing with the basic principles of identification of typewriting generally it is stated:

¶150

… Since typewriting possesses individuality it can be compared and identified in the same manner as handwriting...... Therein while discussing individuality of typewriting, it is stated thus:

¶151

“The individuality of the typewriter is established by the character of its type impressions on the paper. These characteristics of typewriting can be analyzed, compared and differentiated and can be positively identified as those of a particular typewriter. This individual comparison and identification of characteristics may establish the genuineness of forgery of typewritten instrument and when admitted in evidence is sufficient proof.

¶152

The occurrence of similar irregularities in typewriting in two or more machines is practically impossible. The rule that the typewriter creates for itself a certain distinctive character of writing which identifies one certain machine from all other machines is well established. To prove that two instruments were written on a particular typewriter similar coincidences of characteristics must be shown in both instruments, and these coincidences considered collectively must demand a single conclusion.

¶153

In 'Typewriting Identification (Identification System for

¶154

¶155

Crl.A.Nos.109, 127 & 162 of 2008

¶156

Questioned Typewriting)' by Billy Prior Bates, the conclusion of the principles is stated thus:

¶157

Conclusion

¶158

TYPEWRITING identification is based on the same principle underlying handwriting identification, or any other thing which has a great number of possible variations.

¶159

The identification of a typewritten document can be likened to the identification of a particular person. A person may be identified in general by his sex, size, features etc, and in addition, for example, by a radical mastectomy scar. A typewriter may be identified in general by characteristics such as type design and size, possessed by all machines of a specific make and model, and in addition, for example, by a flaw in the serif on the letter E.

¶160

No opinion as to identity should be based upon only a few dissimilarities (or similarities). It is the combination of measurements and characteristics which altogether make up the conclusion.

¶161

When good, clear specimens are available in sufficient amount for a scientific identification of the 12 points of comparison, it is possible to show with absolute certainty that a document was, or was not, produced by a particular machine.

¶162

The mathematical probability of the same combination of these characteristics divergent from the norm appearing in two machines is practically nil. The evidence of the 12 points of comparison can be conclusive proof.

¶163

It is, therefore, clear that the examination of typewriting and identification of the typewriter on which the questioned document was typed is based on a scientific study of certain significant features of the typewriter peculiar to a particular typewriter and its individuality which can be studied by an expert having professional skill in the subject and, therefore, his opinion on that point relates to an aspect in the field of science which falls within the ambit of S.45 of the Indian Evidence Act. Such opinion evidence of experts in the field has long been treated as admissible evidence in similar jurisdictions like United States as is evident from these standard text books on the subject.

¶164

In the decision reported in Chandrakant Chimanlal

¶165

Desai v. State of Gujarat (1992 SCC (57), it has been held that the

¶166

evidence of handwriting expert is not decisive unless the prosecution version is believable. In that case the prosecution alleged that a Jasa Chitthi demanding ransom was written by accused 1 at the

¶167

¶168

Crl.A.Nos.109, 127 & 162 of 2008

¶169

behest of accused 2. The defence version was that it was a fabrication resorted to by the police to involve the accused in the commission of crime. According to the prosecution, the Jasa Chitthi was shown to the father of the deceased in the presence of a crowd of 50 though none therefrom came to be examined. The knowledge regarding existence of the ransom note was, according to the prosecution, not confined to accused 2 and the deceased's father but had become public. However, the police was not informed about the same. The trial court closely examined the evidence of the main witnesses to this development and gave cogent reasons for disbelieving this part of the prosecution case. But the High Court merely referred to the evidence of the handwriting expert without examining the veracity of the prosecution evidence and concluded that it lent corroboration to the confession, thus treating the confession as the base document around which the rest of the evidence must circle. In such circumstances, the Supreme Court has held that this part of the prosecution case is highly artificial and unconvincing. The evidence of the expert was not decisive unless the prosecution version inspired confidence.

¶170

In the decision reported in Vijayachandran v. Superintendent of Police (2008 (3) KLT 307) it has been held that:

¶171

¶172

Crl.A.Nos.109, 127 & 162 of 2008

¶173

“A reading of section 120 A of the Indian Penal Code reveals that to constitute the offence of criminal conspiracy there must be an agreement between two or more persons. Such agreement must be, to do or cause to be done a particular act or acts of the nature specifically referred to in the said section. Such acts may be either illegal as stated in sub-clause (1) of S.120 A of the Indian Penal Code or, it may not be illegal. If such act is not illegal by itself, sub-clause (2) of S.120 A of the Indian Penal Code requires that such act is to be done or caused to be done, by illegal means. The proviso to section 120 A lays down that no agreement, except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement, in pursuance thereof. As per the explanation, it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Thus, if the above ingredients in section 120 A are satisfied, an agreement between two or more persons can be designated 'criminal conspiracy'. As far as criminal conspiracy is concerned, the factum of 'agreement' is the most relevant factor constituting the offence. The court must be satisfied that the accused has entered into an agreement of the nature referred to in section 120 A of the Indian Penal Code on a particular day or during a particular period at a particular place or places and there was meeting of minds of two or more persons in a particular manner.

¶174

27. In the same decision it has been held that:

¶175

“The evidence of the handwriting expert can be accepted without corroboration, only if it is quite convincing and reliable. Just like any other piece of evidence, the court has to put the evidence of handwriting expert also to strict judicial scrutiny”.

¶176

But in the decision reported in S.V.L. Murthy v. State

¶177

represented by CBI, Hyderabad (2009 (6) SCC 77) and connected appeals it has been held that in order to attract an offence under section 415 read with section 420 of the Indian Penal Code existence of an intention to cheat at the time of making initial promise or formation of contract is required. It has been held that:

¶178

¶179

Crl.A.Nos.109, 127 & 162 of 2008

¶180

Complainant is required to show that accused had fraudulent or dishonest intention at the time of making promise or representation. In the absence of culpable intention at the time of making initial promise. No offence is made out under section 420 of the Indian Penal Code.

¶181

In that decision it has been observed that:

¶182

In the present case allowing of cheque discounting facility by bank officials to customers of Bank, without any criminal intent being proved, did not amount to commission of offence, particularly as facility allowed was not contrary to RBI guidelines. It could not therefore also be said that there was meeting of minds in a conspiracy to commit an offence, nor could the act of corruption be inferred from transactions between Bank and its customers. The accused officials might have been prosecuted under section 409 of the Indian Penal Code but they were not charged under that section . So their conviction under section 409 of the Indian Penal Code and section 13(1)(d) therefore set aside.

¶183

In the same decision it has been observed that:

¶184

One of the ingredients of cheating, as defined in section 414 of the Indian Penal Code, is existence of an intention to cheat a t the time of making initial promise or existence thereof from the very beginning of formation of contract. The complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under section 420 of the Indian Penal Code can be said to have been made out.

¶185

It has been held in the decision that existence of an intention to cheat at the time of making initial promise or formation of contract is an essential ingredient to attract offence under Section 420 of the Indian Penal Code. The complainant is required to show that the accused had fraudulent or dishonest intention at the time of making

¶186

¶187

Crl.A.Nos.109, 127 & 162 of 2008

¶188

promise or representation. The absence of culpable intention at the time of making initial promise, no offence under section 420 of the Indian Penal Code is made out. Mere allowing of cheque discounting facility by the bank official to the customer bank without any criminal intention being proved did not amount to commission of offence particularly as a facility allowed was not contrary to the Reserve Bank of India guidelines. It cannot be said that there was meeting of minds in a conspiracy to commit an offence, nor the act of corruption could be inferred from the transaction between bank and its customer. At the most, the bank officials might have been prosecuted under section 409 of the Indian Penal Code, but in that case there was no charge for that offence. Further in the same decision it has been held that they had been certain procedural irregularities in the transaction. However if there was sufficient evidence available on record to show that the offences had done so far for the purpose of promoting the business of the bank in relation there to and in respect where of initiatives had been taken by PWs 19 and 20. It has not been disputed that after the cheque discounting facility was stopped in April, 1999 by the accused No.4, there has been meeting at the residence of PW20. In his deposition the said witness categorically admitted that the said meeting was arranged at the instance of the accused No.1. It is also

¶189

¶190

Crl.A.Nos.109, 127 & 162 of 2008

¶191

brought out in evidence that a meeting has been arranged at his residence on the day he was on leave at the instance of accused No.1. He must have developed grievance against accused No.4 as regards stopping of that facility. If immediately thereafter the said facility had been restored by accused No.4, a stand taken by him that it was done under the oral instructions of higher authorities appears to be plausible. The Supreme Court also observed in the same decision that the learned special Judge as also the High Court unfortunately proceeded on the basis that the cheque discounting facility could under no circumstances being made available to them. We do not think that, that was a correct approach. RBI guidelines categorically show that it was not a wrong practice. It is one thing to say that there has been an abuse of prevalent banking practice for the purpose of causing wrongful loss to the bank and causing wrongful gain to others, but it is another things to say that the reason there of the ingredients of cheating are attracted.

¶192

But in this case, there is no such evidence to show that there was any direction given by the higher authorities to the first accused to issue the facility forgoing the procedural formalities. Further from the prosecution case it is also clear in this case that the letter of credit that has been obtained for the purpose of purchasing certain

¶193

¶194

Crl.A.Nos.109, 127 & 162 of 2008

¶195

articles from M/s.K & M Manufacturer and Exporters, Mumbai, of which third accused is said to be the proprietor by M/s.Shaw Cashew Company, Thiruvananthapuram of which second accused was managing partner and the letter of credit was intended for the purpose of purchasing the article and pay of the amount due to M/s.K & M Manufacturers and Exporters, Mumbai. But it will be seen from the evidence adduced in this case that the real propose was not that, but the letter of credit facility was obtained by the second accused from the bank of which the first accused was the manager for the purpose of paying off the temporary loan facility availed by the second accused from Fedex Securities of which PW14 was the chairman and the 4^th accused was the vice president. It is also the case of the prosecution that accused were aware of the fact that the second accused had no intention to purchase the article from M/s.K & M Manufacturers and exporters and there was no actual contract between them for that purpose and he is not going to utilise the amount for the purpose and with this knowledge and intention they have presented the application with certain documents and obtained the facility. But for the representation made and purposes mentioned in the application normally second accused will not get the facility from the bank. It is also brought out in evidence that the second accused had not utilised

¶196

Crl.A.Nos.109, 127 & 162 of 2008 38

¶197

the amount for the purpose for which it was obtained as well. Further there was no evidence as in the case relied on by the defence mentioned above, that first accused had issued the facility which he was not intended to give under the instructions given by any of his higher officials on that particular instance. So under such circumstances, the dictum relied on by the counsel for the accused mentioned in S.L.V. Murthy's case (supra) is not applicable to the facts of this case.

¶198

In the decision reported in Ram Bahadur Thakur

¶199

Ltd & Ors. v. Maanish Mohan Sharma & Anr. (AIR 2008 SC 1682) it has been held that in order to attract the offence under section 420 of the Indian Penal Code, fraudulent or dishonest inducement by the accused must be at the inception and not at a subsequent stage. Mere signing blank cheques given to the accused for the use in business by itself would not amount to forgery.

¶200

In the decision reported in Habeeb Mohammad v.

¶201

State of Hyderabad (AIR 1954 SC 51) it has been held that:

¶202

It is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from his non production as a witness in view of illustration (g) to section 114 of the Evidence Act, but the circumstances of its being withheld from the court casts a serious reflection on the fairness of the trial.

¶203

¶204

Crl.A.Nos.109, 127 & 162 of 2008

¶205

The same view has been reiterated in the decision

¶206

reported in Raghava Kurup v. State of Kerala (1965 KHC 382). In

¶207

S. Harnam Singh v. The State (Delhi ADMN.) (1976 SCC (Cri)

¶208

324), it has been held that:

¶209

Non-production without cause of material prosecution witness already cited in the calendar of witnesses, held, prejudiced fair trial and amounted to an irregularity.

¶210

36. In the decision reported in Rabindra Kummar Dey

¶211

v. State of Orissa (1976 SCC (Cri)655) it has been held that:

¶212

If entrustment of the monies is proved or admitted, inference of guilt of the accused then depends on the falsity of his explanation for retaining that sum of money. But accused only bound to give a probable or reasonable explanation.

¶213

In the same decision it has been held that:

¶214

The mere fact that a witness is declared hostile by the party calling him and allowed to be cross examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether.

¶215

In the same decision it has been observed that non

¶216

production of material witness without cause by the prosecution is a fact to be considered by the court to doubt the genuineness of the prosecution case and court is entitled to draw adverse inference.

¶217

In the decision reported in Abdulla Mohammed

¶218

Pagarkar etc v. State (Union Territory of Goa) (AIR 1980 SC 499) it has been held that:

¶219

Though the work was got executed in flagrant disregard of

¶220

¶221

Crl.A.Nos.109, 127 & 162 of 2008

¶222

the relevant Rules and even of ordinary norms of procedural behaviour of Governmental officials and contractors, such disregard did not amount to any of the offences alleged against them. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the State to bring out, beyond all reasonable doubt, that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the Government. The accused could not be convicted relying on the mere impression of the prosecution witnesses regarding the number of labourers employed from time to time. No doubt there were several irregularities giving rise to a strong suspicion in regard to the bona fides of the accused in the matter of the execution of the work but suspicion, however strong, could not be a substitute for proof and it was not permissible to place the burden of proof of innocence on the person accused of a criminal charge.

¶223

In the decision reported in Ashish Batham v. State

¶224

of M.P. (2002 SCC (Cri) 1718) it has been held that:

¶225

Prosecution proceeding with a preconceived idea against accused, with-holding and suppressing vital facts, documents, materials and witnesses though the case based on circumstantial evidence, but circumstances not proved beyond doubt and vital links in the circumstances missing, then conviction of the accused by courts below based on conjectures and surmises is unsustainable in law as it resulted in miscarriage of justice and cannot be sustained. In the same decision it has been held that:

¶226

Accused is presumed to be innocent till charges against him are proved beyond reasonable doubt, mere heinous or gruesome nature of the crime not enough to punish the accused. Mere suspicion, however strong it may be, cannot take the place of legal proof.

¶227

It has been further observed that where suppression of relevant

¶228

¶229

Crl.A.Nos.109, 127 & 162 of 2008

¶230

documents, materials and witnesses by the prosecution alleged, court should first ascertain whether prosecution has come before it with true facts and what would be the impact of such allegation on the very proof of existence of the circumstances. If the suppression of material witnesses and documents break the chain of circumstances, then that benefit must be given to the accused and he is entitled to get acquittal.

¶231

In the decision reported in R. Venkatkrishnan v. Central Bureau of Investigation (2010 (1) SCC (Cri) 164) it has been held that:

¶232

Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, must prove the same by applying legal principles which are applicable for the purpose of proving a criminal misconduct on the part of an accused. A criminal conspiracy must be put to action and so long a crime is merely generated in the mind of criminal, it does not become punishable. Thoughts even criminal in character, often involuntary, are not crimes but when they take concrete shape of an agreement to do or cause to be done an illegal act or an act which is not illegal but by illegal means, then even if nothing further is done, the agreement would give rise to a criminal conspiracy. Condition precedent for holding accused persons guilty of a charge of criminal conspiracy must, therefore be considered on the anvil of a fact which must be established by prosecution viz., meeting point of two or more persons for doing or causing to be done an illegal act or an act by illegal means. The courts, however, while drawing an inference from materials brought on record to arrive at a finding as to whether the charges of criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is, thus, difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which offences have been committed and the level of involvement of accused persons therein are relevant factors. For the said purpose, it is necessary to prove that propounders had expressly agreed to, or

¶233

¶234

Crl.A.Nos.109, 127 & 162 of 2008

¶235

caused to be done illegal act but it may also be proved otherwise by adducing circumstantial evidence and /or by necessary implication. In some case, intent of unlawful use being made of the goods or services in question may be inferred from knowledge itself. A conspiracy may further be a general one and a separate one. A smaller conspiracy may be a part of a larger conspiracy. It may develop in successive stages. New techniques may be invented and new means may be devised for advancement of common plan.

¶236

In the same decision it has been held that making

¶237

available public money by bank officials to a private party contrary to statutory provisions and departmental instructions with a view to help the private party, then dishonest intention is evident from the facts and circumstances of the case and that will amount to criminal breach of trust even if money was subsequently recovered and bank did not suffer any monetary loss . In the same decision it has been held that even if no departmental action had been taken against them, bank officials were criminally liable for criminal breach of trust in such circumstances. In the same decision it has been held that persons like public servants, bankers, etc are considered confidential character involving great power of control over property entrusted to them. Breach of trust by such persons may often result in serious public or private calamity. High morality is expected of those person. They are supposed to discharge their duties honestly. Further in the same decision, it has been held that where bank officials of two public sector banks conducted inter-banking transaction in such a

¶238

¶239

Crl.A.Nos.109, 127 & 162 of 2008

¶240

manner that public money amounting Rs.40 crores was illegally made available to a private person for carrying out transactions in securities, offence under section 13(1)(d)(iii) was made out against the bank officials. Further in the same decision it has been observed that for convicting a person under section 13(1)(d)(iii), there must be evidence on record that the accused”obtained” for any other person any valuable thing or pecuniary advantage without any public advantage.

¶241

In the decision reported in Dalpat Singh v. State of

¶242

Rajasthan (AIR 1969 SC 17) it has been held that ingredients of offence under section 5(i)(d) are:

¶243

that the accused should be a public servant,

¶244

that he should use some corrupt or illegal means or otherwise abuse official position as a public servant,

¶245

that he should have obtained valuable thing or pecuniary advantage and

¶246

for himself or any other person.

¶247

In the decision reported in N.V. Subba Rao v. State,

¶248

through Inspector of Police, CBI/SPE, Visakhapatnam, Andra

¶249

Pradesh (2013(2)SCC 162) it has been held that in a case relating to disbursement of loan compliance with procedural requirements, the burden lies on the Bank Manager as he was custodian of Bank Branch and had to take entire responsibility if he fails to discharge

¶250

¶251

Crl.A.Nos.109, 127 & 162 of 2008

¶252

the same, then he can be found guilty for the offence alleged. In the same decision it has been held that criminal conspiracy can be proved by circumstantial evidence and if evidence adduced on the side of the prosecution proved the conspiracy granting of loan misusing the official position to the advantage of a private person, then the offence under section 13(1)(d) read with section 13(2) of the P.C.Act, 1988 and Section 120 B of the Indian Penal Code are made out. Further the statement given by the accused under section 313 of the Code of Criminal Procedure can be relevant consideration for courts to examine particularly when the prosecution has established chain of events establishing culpability of the accused. Irregularity or deficiencies in conducting investigation is not always fatal to the prosecution case unless it has resulted prejudice or miscarriage of justice to the accused and that must be established by the accused. The Supreme Court has relied on the decision reported in Kashinath Mondal v. State of W.B (2012 (7) SCC 699) for this proposition in this decision.

¶253

In the decision reported in Central Bureau of Investigation v. Jagjit Singh (2013 (10) SCC 686) it has been held that in the case of bank scam on account of criminal conspiracy and embezzlement of money cannot be quashed even if the defaulters

¶254

¶255

Crl.A.Nos.109, 127 & 162 of 2008

¶256

have paid the amount and in such circumstances, even the matter is compromised between the customer and bank, the same cannot be quashed invoking the power under section 482 of the Code of Criminal procedure.

¶257

In the decision reported in Mir Nagvi Askari v. Central Bureau of Investigation (2009 (15) SCC 643) it has been held that misuse of funds by bank officials in violation of banking practices and–departmental instructions amounts to criminal breach of trust. If that was done with an intention to cause unlawful gain to a private party and that will amount to abuse of his official position as well. In the same decision it has been held that bank officials allowing advance credits on bankers cheques to the account of a customer and thus allowing him to overdraw money from his account held that public money belonging to a nationalized bank was misappropriated and undue monetary benefit was conferred on the customer which will amount to criminal misconduct under sections 13(1)(c) and 13(1) (d) of the P.C.Act.

¶258

In the decision reported in State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri [ ( 2006) 7 SCC 172], the Supreme Court has held that a court of law would expect from the prosecution is that the investigation would be a fair one. It would not

¶259

¶260

Crl.A.Nos.109, 127 & 162 of 2008

¶261

be carried out from the stand of the prosecution, but also the defence particularly in view of the fact that the onus of proof may shift to the accused at a later stage. The evidence of PW41 raises doubts about his bona fides , why he did not examine important witnesses and as to why he had not taken into consideration the relevant documentary evidence has not been explained. He did not even care to ascertain the correctness or otherwise of the status of both the respondent and his wife before the income tax department. He did not produce before the court the documents made by the respondent/his wife and those of his sons all though they were relevant. So the decisions was relied on by the defence for the proposition that the investigation conducted by PW50 was not a fair investigation and as such miscarriage of justice have been caused to them. There is no dispute regarding the proposition that if material witnesses were suppressed and material documents were not procured and no explanation has been given for that by the investigation officer and that has caused any miscarriage of justice to the defence, that can be taken into consideration by the court while considering the question as to whether the prosecution had established their case or proved their case beyond reasonable doubt. The question as to whether the investigation conducted by PW50 in this case is proper or not is a matter to be considered by this court on

¶262

¶263

Crl.A.Nos.109, 127 & 162 of 2008

¶264

the basis of evidence at a later stage.

¶265

In the decision reported in Purushothaman v. State

¶266

of Kerala [2005(4) KLT 842(SC)], it has been held that constitute a criminal conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. The existences of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Each and every incriminating circumstances must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely inferred and no other hypothesis against the guilt is possible. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the

¶267

¶268

Crl.A.Nos.109, 127 & 162 of 2008

¶269

termination of agreement. The suspicion cannot take place if a legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is not possible to prove the agreement between the conspirators by direct evidence, but the same can be inferred from the circumstances giving rise to conclusive or irresistible inferences of an agreement between two or more persons to commit an offence. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.

¶270

In the decision reported in C.K. Jaffer Sharief v. State(Though CBI) (2013) 1 SCC 205] in the absence of any dishonest intention to obtain undue pecuniary advantage by the accused or by some other person on account of any act of the accused, the criminal prosecution initiated against accused public servant is not made out. That was a case where the accused who was a minister of Railways was also the head of two public sector undertakings in question, namely RITES (Rail India Technical and Economic Services Ltd.) and IRCON (Indian Railway Construction Co. Ltd.,) at the

¶271

¶272

Crl.A.Nos.109, 127 & 162 of 2008

¶273

relevant time. It is also clear from the materials on record that four persons who accompanied the appellant to London after appellant allegedly prevailed upon rights and to take four employees on deputation for sole purpose of sending them to London in connection with his medical treatment, while in London had assisted the appellant in performing certain tasks connected with discharge of duties as minister. It is difficult to visualize as to how in the light of the above facts, demonstrated by materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant who obtained any valued thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of witnesses examined under section 161 of the Code of Criminal Procedure, shows that the aforesaid four persons had performed certain tasks to assist the minister in the discharge of his public duties. However significance to such tasks may have been, no question of obtaining any pecuniary advantage in corrupt or illegal means by abuse of the position of the appellant as a public servant can arise. As a minister, it was for the appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London. It is anticipated that he would be required to perform his official duties

¶274

¶275

Crl.A.Nos.109, 127 & 162 of 2008

¶276

while in London. If in the process to the Rules or norms of the applications were violated or the decision taken shows an extra wagent display of redundance. It is a conduct and action of the appellant which may have been improper or contrary to departmental norms, but to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under section 13(1)(d) of the Prevention of Corruption Act, 1988 is implicit under the words used that is illegal means and the position as a public servant. Under such circumstances the Supreme Court has held that the act of the minister taking certain persons with him to London will not amount to a corrupt practice or misconduct punishable under section 13(1)(d) of the Prevention of Corruption Act, 1988.

¶277

In the decision reported in Major S.K. Kale v. State

¶278

of Maharashtra [(1977) 2 SCC 394], it has been held that, mere abuse of position by the appellant as public servant alone is not sufficient to attract the offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947, which is similar to Section 13(1)(d) of present Prevent of Corruption Act, 1988. Such an abuse of position must necessarily be dishonest. So that, it may be proved that the appellant deliberately caused wrongful loss to the Army by obtaining pecuniary

¶279

¶280

Crl.A.Nos.109, 127 & 162 of 2008

¶281

benefit from the present supplier. That was a case where some orders were placed to a particular supplier by the appellant and there was some irregularities in placing the order for the supply with the supplier. But there was no evidence to show that the act of the appellant had caused any unlawful gain to the supplier or unlawful loss to the Government or the department and no attempt was made by the prosecution to collect the documents proved these facts as well. So under such circumstances, the Supreme Court has held that prosecution has not proved the case against the accused, though it was observed that, it may be the act of the appellant was an error of judgment or an act of indiscretion, but on that alone is an inference of dishonest intention cannot be drawn.

¶282

In the decision reported in State by Superintendent of Police, CBI/S.I.T. v. Nalini and Others and connected

¶283

appeals [(1999) 5 SCC 253], it has been observed that a charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. The prosecution has to prove evidence not only to show that each of the accused has knowledge of the object of conspiracy but also the agreement. In the charge of conspiracy, the court has to guard itself against the danger of unfairness to the

¶284

Crl.A.Nos.109, 127 & 162 of 2008 52

¶285

accused. Introduction of evidence against some may result in conviction of all which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in file of any other substantive evidence, prosecution tries to implicate the accused not only in the conspiracy itself but also in substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy, but then they have to cogent and convincing evidence against each one of the accused charged with the offence of conspiracy, as observed by the judge, this distinction is incorporated today when many prosecutors seek to speak within the dragnet of conspiracy, all those who have been associated in any degree what ever with the main offenders. Further in the same decision it has been observed that it is the unlawful agreement and not its accomplishment which is the gist or essence of the crime of conspiracy. Offence of conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the dragnet of the crime of conspiracy. The unlawful agreement which amounts to conspiracy need not be formal or express, but may be inherent and inferred to the circumstances especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the

¶286

¶287

Crl.A.Nos.109, 127 & 162 of 2008

¶288

parties at the same time but may be reached by successive actions evidencing the joining of the conspiracy. In the same decision it has been observed that a man may join a conspiracy by work or by deed, however, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty and one who passively concerns to the object of the conspiracy and goes along with the other conspirators actually standing by while the others put the conspiracy into effect is guilty, though he intends to take no active part in the crime.

¶289

In the decision reported in Sai Bharathi v. J.Jayalalitha and Others [(2004) 2 SCC 9], it has been held that there must be statutory law or of rules/regulations framed there under and not mere administrative instructions or guidelines prohibiting public servants from purchasing certain property. Violation of code of conduct issued by the Government, which is not enforceable in court nor can be treated as unlawful or illegal in the in the making of Section 43, then no offence is attracted, if there is merely a violation of the code of conduct alone.

¶290

In the decision reported in Subhash Harnarayanji Laddha v. State of Maharashtra [(2007) 2 SCC (Cri) 122], it has

¶291

¶292

Crl.A.Nos.109, 127 & 162 of 2008

¶293

been observed that in the absence of any connecting links in the case of circumstantial evidence, it has to be proved by the prosecution that all chain of circumstances which leads to the irresistible conclusion regarding the involvement of the accused, then it is not possible for the court to come to a conclusion that prosecution has proved the case against the accused beyond reasonable doubt. Circumstantial evidence which might have been brought on record or not which can lead us to a firm conclusion that there had been a pre-concern amongst the appellants on the one hand and the accused No.1 on the other. In such circumstances the accused cannot be convicted either for the conspiracy or for the subsequent act invoking section 120B of Indian Penal Code.

¶294

In the decision reported in Chatt Ram v. State of Haryana [(1980) 1 SCC 460], it has been held that the prosecution to establish that the ticket was forged document and that the accused participated in any manner in the act of forgery and that he had requsite mens rea when he presented it before the concerned officer to claim price. It is however immaterial for section 461, if at any subsequent point of time he comes to know it is forged character. So in order to attract section 471 of the Indian Penal Code, it is necessary to consider whether the prosecution had established by adducing

¶295

¶296

Crl.A.Nos.109, 127 & 162 of 2008

¶297

cogent and convincing evidence that the accused knew or had reason to believe that the ticket to be a forged document when he presented it before the treasury officer and dated before the director to claim special prize on the basis there. If this is not proved, then merely because he had presented the lottery ticket to get the prize alone is not sufficient to attract the offence under Section 471 of the Indian Penal Code.

¶298

In the decision reported in Subash Parbat Sonvane v. State of Gujarat [(2002) 5 SCC 86], it has been held that in section 7, 13(1)(a) and (b) of the Act, the legislature has specifically used the word 'acceptance' or 'obtains'. As against this, there is a departure in the word used in section 13(1)(d) and omitted the word 'accepts' and emphasize the words 'obtains'. Further, the ingredient of sub clause 1 is that, by corrupt or illegal means a public servant obtains any valuable thing or pecuniary advantage and sub clause 2, he obtains such thing by abusing his position as a public servant and sub clause 3 contemplates that while holding the position as a public servant he obtains for any person, any valuable thing or pecuniary advantage without public interest. Therefore, for convicting the person under section 13(1)(d), there must be evidence on record that the accused obtained for himself or for any other person any valuable

¶299

Crl.A.Nos.109, 127 & 162 of 2008 56

¶300

thing or pecuniary advantage by either corrupt or illegal means or by abusing his official position as public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest.

¶301

This court interpreted similar provision under the Prevention of Corruption Act, 1947 in Ram Krishan v. State of Delhi [AIR 1956 (SC) 476] and held that, there must be proof that the public servants adopted a corrupt or illegal means and thereby obtained for himself or for any other person any valid or pecuniary advantage. The court has observed that in one sense there is no doubt, but he does not follow that there is no overlapping of offences. We have primarily to look at the language employed and give effect to it. One clause of cases might arise when corrupt or illegal means are adopted or pursued by public servant to gain for himself the pecuniary advantage. The word obtains on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it converts also an element of effort on the part of receiver. One accept money as bribe or extract the bribe by threat or coercion in each case he obtains a pecuniary advantage by abusing his position as a public servant. It is further observed that it is enough if by abusing his official position as a public servant the man obtains for himself any pecuniary

¶302

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Crl.A.Nos.109, 127 & 162 of 2008

¶304

advantage entirely irrespective of motive or reward for showing favour or disfavor.

¶305

It is true that section 13(1)(d) of Prevention of Corruption Act has three limbs, first two limbs deals with obtaining any advantage for himself or for any other person in the first part and the second part he is doing it by abusing his official position and obtains for himself or for any other person, a valuable thing or pecuniary advantage. In the third category while holding office as public servant obtains for any person any valuable thing or pecuniary advantage without any public interest. In all three categories, there is an element of the public servant obtaining any valuable thing for himself or on account of his act by using his official position, some advantage or pecuniary gain has to be caused to another person also. Merely because the person who is doing the favour did not get any pecuniary advantage in circumstances alone is not sufficient to come to the conclusion that he has not committed any offence or misconduct under the Act. If the prosecution can able to prove that abusing the official position as a public servant he had done something with a dishonest intention of causing some pecuniary advantage or obtains some valuable thing for another person which is not in the interest of the institution or against public interest, then merely because did not get

¶306

¶307

Crl.A.Nos.109, 127 & 162 of 2008

¶308

some pecuniary advantage or the prosecution was not able to prove that he obtained something for doing such an act, it cannot be said that the offence under section 13(1)(d) is not made out. If such an interpretation is made, then the purpose of that provision itself become redundant.

¶309

The same view has been reiterated in the decision reported in R.Balakrishna Pillai v. State of Kerala [(2003) 9 SCC 700]. In the decision it has been further observed that in order to attract secion 5(1)(d) of THE Prevention of Corruption Act, 1947, it is necessary that the act must have been done illegally abusing his official position as a public servant for obtaining benefit pecuniary or otherwise for himself or someone else. This is an offence which would require an intention to accompany the act. The element of mental state would necessary to do a conscious act to get the required result on pecuniary advantage or to obtain any valuable thing, even if it is for someone else, then too element of mental state must be there at the relevant time.

¶310

In the same decision it has been observed in paragraph 44 and 45 as follows:

¶311

44. We further find the said principle of criminal jurisprudence stated in Criminal Law by K.D.Gaur, wherein it is stated as follows:

¶312

“Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to

¶313

¶314

Crl.A.Nos.109, 127 & 162 of 2008

¶315

limitations indicated in the Latin maxim, actus non facit reum, nisi means sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively.”

¶316

45.Glanville Williams in Criminal Law has also stated as follows in connection with the intention accompanying the act:

¶317

“The chief problems in the general part of criminal law pertain to be requirement of a criminal state of mind, means rea; but these cannot be adequately discussed without a preliminary exploration of the nature of an actus reus.” It is further stated:

¶318

“Although thoughts are free, the uttering of them is another matter. Speaking or writing is an act, and is capable of being treason, sedition, conspiracy or incitement; indeed, almost any crime can be committed by mere words, for it may be committed by the accused ordering an innocent agent (e.g. a child under eight) to do the act. But to constitute a criminal act there must be (as said already) something more than a mere mental resolution. Apparent, but not real, exceptions to this proposition are treason and conspiracy. It is treason to compass the King's death, but the law requires an overt act manifesting the intention; and this act must be something more than a confession of the intention. Ir must be an act intended to further the intention; perhaps, too, it must actually do so.....”

¶319

The counsel for the first accused had relied on certain

¶320

books to consider the difference between letter of credit in DP Form and DA form. In the case of documents against payment (DP) and the documents against acceptance (DA), they represents risk levels, lower than open account. But greater than a letter of credit. Both rely on instruments widely used in international pay called bill of exchange or draft. The bill of exchange or either payable at site (site of drafts) where the bank pays the full amount upon presentation or payable at

¶321

¶322

Crl.A.Nos.109, 127 & 162 of 2008

¶323

some future date (time or term draft). The DA transaction utilises the term or bank draft. In this case, the documents required to take possession of the goods or released by the clearing bank only after the buyer accepts a time draft drawn upon him. In essence, this is a deferred payment or credit arrangement. The buyers asset is referred to as a trade acceptance. The DA terms are usually after site for instance had 90 days site or after a specific date such as at 180 days bill of lading. Both these gives lot of advantages for the seller, thereby the bill of exchange facilitates the granting of trade credit of the buyer, it can provide the seller access to financing and the bill of exchange is formal, documentary evidence acceptable in most courts confirming that the demand of payment (acceptance) has been made by the buyer. A commercial letter of credit is a contractual agreement between banks, known as a issuing bank on behalf of one of his customers authorising another bank known as advising or confirming bank to make payment to the beneficiary. The issuing bank on the request of his customer opens the letter of credit. Issue bank makes a commitment to honour drawings made under the credit. The beneficiaries are normally the provider of goods and/ or services, essentially the issuing bank replaces the banks customer as payer. The elements of letter of credit is a payment undertaking given by a bank

¶324

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¶325

(issuing bank) on behalf of the buyer (applicant) to the seller (beneficiary) for a given amount of money on presentation of specified documents representing the supply of goods within specified time limit and document must confirm to terms and conditions set out in the letter of credit and the documents be presented at a specified place. The issuing banks liability to pay and to reimburse to its customer becomes absolute upon the completion of the terms and conditions of the letter of credit. The issuing banks role is to provide a guarantee to the seller that, if the complaints documents are presented, the payment will be made. If the letter of credit is irrevocable, it is reference on its case. There are two types of drafts; site and time. The site draft is payable as soon as it is presented for payment. The bank is allowed a reasonable time to review of the documents after making the payment. A time draft is not payable until the lapse of a particular time period stated on the draft. The bank is required to accept the draft as soon as the documents comply with credit terms. The issuing bank has a reasonable time to examine those documents. Issuing bank is obligated to accept the drafts and pay them at maturity. The procedure for applying letter of credit till its end is as follows:

¶326

Buyer and seller agree to conduct business. The seller wants a letter of credit to guarantee payment.

¶327

¶328

Crl.A.Nos.109, 127 & 162 of 2008

¶329

Buyer applies to his bank for a letter of credit in favour of the seller.

¶330

Buyer's bank approves the credit risk of the buyer, issues and forwards the credit to its correspondent bank (advising or confirming). The correspondent bank is usually located in the same geographical location as the seller (beneficiary).

¶331

Advising bank will authenticate the credit and forward the original credit to the seller (beneficiary).

¶332

Seller (beneficiary) ships the goods, then verifies and develops the documentary requirements to support the letter of credit. Documentary requirements may vary greatly depending on the perceived risk involved in dealing with a particular company.

¶333

Seller presents the required documents to the advising or confirming bank to be processed for payment.

¶334

Advising or confirming bank examines the documents for compliance with the terms and conditions of the letter of credit.

¶335

If the documents are correct, the advising or confirming bank will claim the funds by:

¶336

Debiting the account of the issuing bank.

¶337

Waiting until the issuing bank remits, after receiving the documents.

¶338

Reimburse on another bank as required in the credit.

¶339

Advising or confirming bank will forward the documents to the issuing bank.

¶340

Issuing bank will examine the documents for compliance. If they are in order, the issuing bank will debit the buyer's account.

¶341

Issuing bank then forwards the documents to the buyer.

¶342

There is no dispute regarding the prepositions and nature of transactions as canvassed by the counsel for the first accused/bank manager regarding issuance of letter of credit. Whether such a facility was given in terms of the banking practice as per the regulations or it was done in violation with some dishonest intention to help in an out of way is a matter to be considered in this case on the basis of evidence which this court will do while appreciating the evidence.

¶343

It is clear from the above dictums that if bank officials

¶344

¶345

Crl.A.Nos.109, 127 & 162 of 2008

¶346

have caused public money to be paid to a private customer to his advantage against the established norms and directions in this regard then it will amount to abuse of their official position and amount to misconduct. Further it is also clear from the decisions that criminal conspiracy cannot be normally proved by adducing direct evidence and it can be proved only by circumstantial evidence and the burden is cast on the prosecution to prove every chain of circumstance which leads to the irresistible conclusion that it was the accused who had committed the crime and this could be possible only on account of meeting of minds of the persons who had availed the benefit on account of the circumstances established to the detriment of the bank and the benefit of others and but for the conspiracy this could not been normally achieved by the beneficiary under the transaction. It is also settled law that the burden is on the prosecution to prove the case beyond reasonable doubt and once it is proved by the prosecution, then the burden shifts on the accused to disprove the fact and also to prove the fact it was done in accordance with norms and procedure and thee was no violation and this has to be proved by the defence by preponderance of probabilities. Once the facts regarding the distribution of the amount availing facility etc were proved, then the burden is on the accused to

¶347

¶348

Crl.A.Nos.109, 127 & 162 of 2008

¶349

prove that it was done in accordance with law and there was no favoritism or nepotism shown in favour of the customer. Once the offence of misappropriation or cheating is proved, then mere fact that the amount was later deposited will not absolve the criminal liability of the person for the offence committed. Even if the conspiracy is not proved, if other evidence establishes the commission of a particular offence namely forgery or using a forged document as genuine document then accused can be convicted for those independent offences irrespective of the fact that the prosecution has failed to prove the conspiracy alleged for committing such offence as well. With these principles in mind, the facts of this case has to be considered by this court.

¶350

63 . The fact the M/s.Shaw Cashew Company, Attingal, Thiruvananthapuram District was a partnership firm and second accused was the managing partner of that firm is not in dispute. It is also proved by PW1, the office assistant of Inspector General of Registration, who was in charge of the Registrar of the firms as well that Ext.P1 certificate of registration of registrar of firm was issued show that M/s.Shaw Cashew company was registered as a partnership firm with second accused as managing partner and PW2, his father and another brother as partners of the firm and it was registered on

¶351

¶352

Crl.A.Nos.109, 127 & 162 of 2008

¶353

7.8.1992. Further the evidence of PW2, the brother of the second accused, another partner of the firm who proved Ext.P2, the deed of partnership dated 16.06.1991 will also show that it was a partnership firm and second accused was its managing partner. He had also proved Ext.P3 account opening form submitted by the firm M/s.Shaw Cashew Company with Bank of India, Quilon branch in connection with their transaction and Ext.P4 letter of partnership dated 3.1.1992 which was given for that purpose. Ext.P50 is the original Ext.P2 partnership deed and this was also proved through PW2 and he had also deposed that second accused was nominated as the managing partner who conduct the business and operate and deal with the banking transaction with the bank. PW5 was the manager of M/s. Shaw Cashew Company and he had also deposed that it was a partnership concern of which second accused was the managing partner and it was he who was dealing with the transactions with the bank. So all these evidence will go to show that M/s.Shaw Cashew Company, Attingal, Thiruvananthapuram was a partnership concern and second accused was the managing partner of that firm and it was he who was dealing with the bank in connection with the banking transaction of the firm.

¶354

It is also an admitted fact that the second accuesed as managing partner of the firm had submitted Ext.P10 application for

¶355

¶356

Crl.A.Nos.109, 127 & 162 of 2008

¶357

issue of letter of credit on behalf of M/s.Shaw Cashew Company in favour of M/s. K & M Manufacturing and Exporters, Mumbai for an amount of Rs.81,00,000/- allelged to be for the purpose of purchasing of 270 metric tonnes of cashew. It is also an admitted fact that this application was submitted on 5.3.1998 with the bank. It is also an admitted fact that the first accused was working as Assistant Manager of Adavance and Credit Section of Bank of India, Quilon branch during the relevant period and DW2 Sri.Muraleedharan was the Regular Manager of the bank and he was on leave from 2.3.1998 to 6.3.1998 and during the relevant time first accused was in charge of the manager of the bank as well. These facts were proved by PW12 Sreenivasan referring to Ext.P161 leave application given by DW2 and evidence of DW2 himself. This fact is admitted by the first accused in his examination under section 313 of the Code as well. It is also an admitted fact that M/s.Shaw Cashew Company was having cash credit hypothication limit and cash credit pledge limit to a total amount of Rs.330 lakhs and which is evident from Exts.P5 and P5(a) sanction letters issued by the Zonal office of the Bank of India at Thiruvananthapuram proved through PW3, who was working as the relationship manager in Coroprate Bank Branch of Bank of India.

¶358

It is also proved by producing Ext.P6 and P6(a) further

¶359

¶360

Crl.A.Nos.109, 127 & 162 of 2008

¶361

sanction letters, wherein the total cash credit facility was retained to the tune of Rs.330 lacks with inter changing the facility of cash credit hypothication and cash credit pledge limit agreement including the facility of letter of credit. Further PW3 had deposed that no letter of credit beyond the sanction limit could be opened by the customer. Ext.P7 was produced and proved through PW3 containing the relevant portions showing the instruction by Bank of India containing the norms and procedure for opening of letter of credit. It is also an admitted fact that along with Ext.P10 application, Ext.P14 bill of exchange and Ext.P14(a), (b) and (c) copies of the same dated 5.3.1998 signed by the 3rd accused as proprietor of M/s. K and M Manufacturers and Exporters and by the 2^nd accused as Managing Partner of Shaw Cashew Compnay Ext.P15 invoice given by M/s. K and M. Manufacturers and Exporters dated 5.3.1998 signed by 3rd accused as proprietor of M/s. K and M Manufacturers and Exporters, Mumbai, showing that 270 metric tonnes of cashew kernels was sold to M/s. Shaw Cashew Company, Attingal and delivery will have to be taken from Tamilnadu State Co-operative Warehousing Corporation, Tuticorin and also gave Ext.P16 packing list dated 5.3.1998 showing the descriptions of 270 metric tonnes of raw cashew kernels of CDJKL origin in the 3375 packs of 80 kilogram each and it was kept at Tamilnadu State Co-operative

¶362

¶363

Crl.A.Nos.109, 127 & 162 of 2008

¶364

Warehousing Corporation, Tuticorin and Ext.P16 (a) and (b) are the copies of Ext.P16 packing lists appended along with Ext.P10 application and later sent along with Ext.P8 letter of credit which was issued.

¶365

The evidence of PW5 also will go to show that all these documents were prepared and signed on 5.3.1998 by 3rd accused, Jayakumar and it was accepted by the second accused as managing partner of M/s. Shaw Cashew Company and it was endorsed that the articles were received in good condition and these endorsements were also made by the second accused on 5.3.98 itself on the documents. Ext.P18 is the letter issued from M/s. K and M Manufacturers and Exporters signed by 3rd accused, expressing the readiness to sell 270 metric tonnes of raw cashew nuts by CDJKL origin and it was antedated signed by both second and third accused to show that there was a prior contract between them for supply of cashew mentioned therein and that contract was accepted by the second accused.

¶366

It is also an admitted fact that Ext.P29 is the certified copy of the hypothication ledger account of M/s. Shaw Cashew Company and as on 4.3.98, the date before the opening of Ext.P8 letter of credit an amount of Rs.81,98,514.64 was overdue. It is also an admitted fact that PW14 Madhavan was the Chairman of Fedex Securities, Mumbai and second accused was having some business

¶367

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¶369

transactions with them and since he was in need of money, there was understanding of providing a short term loan of Rs.70,00,000/- to M/s. Shaw Cashew Company of which second accused was the managing partner and it was through Anand Sharma (CW49) who was though cited as a witness not examined in this case, the second accused was introduced to PW14 Madhavan. It is also an admitted fact that PW14 had sent 4th accused Ramakrishnan to Quilon to enquire about the genuineness of the transaction and feasibility of granting loan of Rs.70,00,000/- to M/s. Shaw Cashew Company. It is also an admitted fact that on that basis the 4th accused had reached Quilon on 4..3.98 and it was on the basis of the assurance given by the 4th accused regarding the feasibility of the transaction and feasibility of collecting the amount from M/s.Shaw Cashew Company that Rs.70,00,000/- was advanced by Fedex Securities, Mumbai by applying for telegraphic transfer of the said amount by submitting Ext.P77 T.T. application along with Ext.P76 cheque drawn for Rs,70,10,600/- from the account of Fedex Securities Limited for transferring the same to Dhanalakshmi Bank, Quilon branch on 5.3.98 and the same was proved through PW14, the chairman of Fedex Securities Limited and also PW46 Sreedhar Pathak, the accountant of Fedex Securities. PW15 and 16 Sri.Mohan Radhakrishnan and Sabitha Jayadev, who are the officers of

¶370

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¶372

Dhanalakshmi Bank, Mattungai branch proved that Ext.77 application along with Ext.76 cheque for Rs.70,10,600/- it was received on 5.3.98 and Ext.83 credit slip prepared for debiting the amount from the account of Fedex Securities for transferring the amount for crediting the same to Dhanalakshmi bank Quilon branch to arrange payment to M/s.Shaw Cashew company through the account maintained by them in Bank of India, Quilon branch. PW17 Sri.Prasad was an officer of Dhanalakshmi bank, Quilon branch who proved that Ext.P27 manager's cheque of Dhanalakshmi Bank, Quilon branch was issued for Rs.70,00,000/- to Bank of India, Quilon branch for crediting the same in the account of M/s.Shaw Cashew Company and they have also proved Ext.P86, 87, and 88 are the corresponding debt voucher, credit voucher and credit slip prepared for that purpose in their bank.

¶373

It is proved through the evidence of PW7, Bindhu P.H,

¶374

a clerical staff of Bank of India, Quilon that after receiving Ext.P27 banker's cheque of Dhanalekshmi Bank, Quilon for Rs.70 lakhs to be credited in the account of M/s.Shaw Cashew Company on 5.3.1998 under telegraph transfer from Mumbai to Dhanalekshmi Bank, the same was credited in the account of M/s.Shaw Cashew Company after preparing Ext.P11 credit slip. It was also proved through PW7 that, as on 4.3.1998, an amount of Rs.81,98,514.64 was seen as overdue

¶375

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¶377

balance in the cash credit hypothecation account of M/s.Shaw Cashew Company and on the basis of crediting Rs.70 lakhs received from Dhanalekshmi Bank, Quilon branch as per Ext.P27 bankers' cheque issued by them on 5.3.1998, the overdue balance was reduced to Rs.11,98,514.64. It is seen from the evidence that all these things had transpired after the 4^th accused had come down to Quilon from Mumbai as instructed by PW14, Madhavan, the Chairman of Fedex Securities Mumbai on 4.3.1998.

¶378

Though there is no evidence of any meeting of these accused persons between 4.3.1998 and 5.3.1998 prior to the issuance of Ext.P8 Letter of Credit, it can be inferred from the circumstances that only after meeting of accused No.2 and 3 regarding the arrangement to be made for getting Rs.70 lakhs by way of Letter of Credit that the 4^th accused had informed PW14 about the possibility of recovering the amount of Rs.70 lakhs which was given to M/s.Shaw Cashew Company as a short term loan as requested by them that PW14 had made arrangements to give Ext.P77 application along with Ext.P76 cheque to their bank at Mattunga and it is on that basis that an amount of Rs.70 lakhs from the account of Fedex Securities, Mumbai was transferred to the Dhanaleskshmi Bank, Quilon branch by telegraphic transfer in the morning of 5.3.1998 and

¶379

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Crl.A.Nos.109, 127 & 162 of 2008

¶381

thereafter it was transferred to the account of M/s.Shaw Cashew Company by Dhanalekshmi Bank, Quilon by issuing Ext.P27 bankers' cheque to be credited in the account of M/s. Shaw Cashew Company maintained in Bank of India, Quilon branch and it is thereafter that the second accused with the help of PW5, their Manager submitted Ext.P10 application for issuance of Letter of Credit for Rs.81 lakhs in favour of M/s. K&M Manufacturers and Exporters, Mumbai on the guise of purchasing 270 MT of cashew kernel from them which was said to be deported at Tuticorin Port kept at Tamil Nadu Co-operative Warehousing Corporation, Tutucorin and it was thereafter that along with Ext.P10 application, the second accused had submitted Ext.P14 Bill of Exchange enclosed with Ext.P14(a) and Ext.P14(b) copy of Bill of Exchange, Ext.P15 invoice with Ext.P15(a) and Ext.P15(b) copy of invoices, Ext.P16 packing list with Ext.P16(a) and P16(b) packing list executed by the third accused in favour of M/s. Shaw Cashew Company, Pallichal, Thiruvananthapuram undertaking to supply 270 MT cashew to them. It is seen from Ext.P15 that on the back of the invoice itself second accused had endorsed that the goods mentioned therein were received in good condition and it was also signed on the same date namely 5.3.1998. It will be seen from all these documents that all these documents were prepared on 5.3.1998 and were

¶382

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Crl.A.Nos.109, 127 & 162 of 2008

¶384

produced along with Ext.P10 application and it was on the basis of this that the first accused had issued Ext.P8 Letter of Credit along with Ext.P8(a) terms and conditions attached to the Letter of Credit.

¶385

It is also seen from the evidence of PW4, Mrs. Sabitha Banerji, another officer of Bank of India, Quilon branch, who was working along with the first accused at the relevant time, that Exts.P8 and P8(a) were sent to her after the first accused signed the same for her signature also as per the practice if the documents exceeds the value of Rs.10,000/-, it has to be signed by two officers. She had identified the second accused as the person, who used to come to the bank in connection with the transactions of M/s.Shaw Cashew Company and at the time when Ext.P8 was issued, he was also present in the bank with the first accused. She had stated that since it was signed by the first accused, who is in charge of the advance section and also who was the Manager in charge of the bank on that day, she did not verify the documents before putting her signature on the belief that since the first accused had already signed the same, it will be in order. She had also deposed that, according to her knowledge, for the purpose of issuing Letter of Credit, either as DP or DA form, the Bill of Lading or transport receipt of the goods is a material document, on the basis of which, the Letter of

¶386

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¶388

Credit is being issued. She had also identified the signature of the first accused and the handwriting of the first accused in Ext.P8.

¶389

The fact that the second accused had submitted Ext.P10 application for issue of Letter of Credit along with Exts.P14 to P16 and Ext.P8 Letter of Credit was issued in favour of M/s.K&M Manufacturers and Exporters, Mumbai on 5.3.1998 by the first accused undertaking the liability to pay the amount on behalf of Shaw Cashew Company etc is not in dispute and these facts are admitted also. Further, the signatures of the second and third accused in these documents were also not in dispute. According to the second accused in his 313 examination, all these things were prepared by PW5, their Manager Aravindakshan and he had only put his signature. But the evidence of PW5 will go to show that Ext.P10 application was prepared at the instructions of the first accused and the second accused had signed the same in his presence and the application was submitted by the second accused. He had also admitted that along with Ext.P10 application, Exts.P14 to P16 were also handed over and all these things were signed by the third accused and he had also identified the signature of the second accused in those documents as well. Further, it is also seen from the evidence of PW5 that, in the invoice namely Ext.P15, the CST number of both the buyer and seller

¶390

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¶392

shown are not correct and he came to know about that mistake only when he was questioned by the investigating officer in respect of the same. Further, it will be seen from the evidence of PW22, who worked as Commercial Tax Officer, Kuzhithara during the period April 1998-2001 who proved Ext.P95 CST register maintained in their office at Kuzhithara that the CST number assigned to M/s. Shaw Cashew Company was CST No.507145 and Ext.P97 is the certified copy of page 228 of CST (A) Register maintained in their office in which it was categorically stated that the CST No.460626 was assigned to one M.I. Ibrahimkutty, Proprietor, Bhina Cashew Industry, Edaikkod and CST No.126805 mentioned in Ext.P5 is not that of M/s.Shaw Cashew Company and as per their registers, there is no concern with name M/s. K&M Manufacturers and Exporters was registered with them and to their knowledge, no such concern was in existence. Further, the said M.I. Ibrahimkutty, the proprietor of Bhina Cashew Industry, Edaikkod was examined as PW25. He had also stated that, he was the proprietor of Bhina Cashew Industry, Edaikkod and CST.No.460626 is assigned to his concern. But that CST number was entered in Ext.P15 as that of the CST number of K&M Manufacturers and Exporters, Mumbai, of which the third accused was the proprietor. In Ext.P15, the CST number of buyer namely Shaw

¶393

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Crl.A.Nos.109, 127 & 162 of 2008

¶395

Cashew Company was shown CST No.126805 whereas their real CST number was 507145 evidenced by the entry in Exts.P7 and 97(a), the CST (A) registers maintained in the office of CTO Kuzhithara. So it is clear from this that the CST numbers mentioned in Ext.P15 invoice as that of the seller and the buyer namely M/s.K&M Manufacturers and Exporters, Mumbai and Shaw Cashew Company shown were bogus numbers and they do not relate to them. It cannot be said that both the second and third accused were not aware of these facts. So it is clear from this that false CST numbers were mentioned in the invoices knowing fully well that they do not relate to them that those numbers were entered in the invoice by the third accused with the connivance of the second accused so as to present the invoices as a genuine one before the bank for getting Ext.P8 Letter of Credit.

¶396

It is also seen from the evidence of PW20, the

¶397

Assistant Commissioner of Sales tax Department, Special Circle, Quilon, that there was no institution as M/s.K&M Manufacturers and Exporters existing within the jurisdiction of Special Circle, Quilon as stated in Ext.P15 and Ext.P95 is the register maintained in their office relating to assignment of CST numbers to their concerns registered with them. He had also deposed that the CST number 460626 of M/s.K&M Manufactures and Exporters and CST No.12010805 of Shaw

¶398

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¶399

Cashew Company mentioned in Ext.P15 invoice are false numbers and bogus and according to him, the KGST No.12010805 was assigned to one O. Abraham, Immanuel Cashew Industry, Odavanavattam and not to Shaw Cashew Company. This also strengthen the case of the prosecution that Ext.P15 was a bogus document created by second and third accused with the knowledge that it is a false document and presented as genuine document before the bank for getting the facility of Letter of Credit for an amount of Rs.81 lakhs.

¶400

Further it will be seen from the evidence of PW37, the Assistant Registrar of Companies, Mumbai, who produced Ext.P113 certified computer print out of the list of firms and companies registered with the Companies Registrar will go to show that no company or firm with name M/s. K&M Manufacturers and Exporters, Mumbai was registered within their jurisdiction who covers the registration of institutions, firms and companies spread over whole of the country.

¶401

PW38, who worked as Sales tax Officer, Mazagone branch of Mumbai proved Ext.P47 register containing the details of firms and institutions registered under Bombay Sales tax Act, deposed that no company or firm as M/s.K&M Manufactures and Exporters, IV

¶402

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Crl.A.Nos.109, 127 & 162 of 2008

¶404

Pankaj Mansion, Doctor A.B. Road, Worli, Mumbai had existed in that address. He had also deposed that on the basis of the request of the investigating officer, he had made personal inspection at the address mentioned and found that there was no such firm or company or institution by name K&M Manufactures and Exporters ever existed in that address. Further, the third accused had not produced any document to prove the existence of M/s. K&M Manufactures and Exporters dealing with agency business in cashew either at Kollam or at Mumbai. Even his case in his 313 examination was that he was only a name lender and he was acting as per the instructions of PW14, Madhavan, who wanted an agent for their business at Quilon on the understanding that he will be paid commission at the rate of one percent of the transactions undertaken by him. It may be mentioned here that he had not produced any document showing the accounts maintained by him so as to prove that he was conducting any such business. According to him, he had opened an account in the name M/s. Keln & Marshall with Federal Bank, Fort Branch, Mumbai evidenced by Ext.P45 and proved through PW33, Senior Branch Manager of that bank and that account was closed and Ext.P47 account opening form was filed and C.C.No.3828 was opened on that basis. It is also seen from the evidence of PW33 and Exts.P45 and P47

¶405

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Crl.A.Nos.109, 127 & 162 of 2008

¶407

that the account was opened as a proprietary concern of third accused Jayakumar and Ext.P45 account was closed and Ext.P47 was opened. It is also seen from the evidence of PW33 that for the purpose of opening Ext.P47 account, he was accompanied by one Anand Sharma (CW49), an executive of Pace international Ltd, Mumbai. He had also proved and identified the signature and photograph of the third accused in Ext.P47 application. It is also seen from the evidence of PW33 that the proceeds obtained by discounting Ext.P8 Letter of Credit was credited in the account of M/s.K&M Manufacturers and Exporters with C.C. Account No.3828 and Ext.P40 demand draft drawn for an amount of Rs.74,57,050/- dated 6.3.1998 was received for crediting that amount in the account of M/s. K&M Manufactuers and Exporters and it was credited on 6.3.1998 itself. He had also deposed that Ext.P78 cheque was drawn on 6.3.1998 for an amount of Rs.71 lakhs and that the amount was debited from the account of M/s. K&M Manufactures and Exporters evidenced by Ext.P47 for the purpose of transferring the same to the credit of the account of Fedex Industries Ltd. Ext.P81 is the computer print out of account No.00214 maintained in the name of Fedex Industries Ltd which was also maintained in their bank in which the credit of proceeds of Ext.P78 cheque was seen entered on 6.3.1998 itself. He had also deposed that Ext.P49

¶408

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¶410

was the cheque drawn on 6.3.1998 for an amount of Rs.1,75,000/which was debited from Ext.P47 account of M/s. K&M Manufactures and Exporters. He had also deposed that Exts.P48 and P49 were tendered for encahsment in the bank by the 4^th accused Ramakrishnan and he had identified him from the court as well. He had further deposed that Ext.P111 cheque was drawn for Rs.41,000/on 17.3.1998 in favour of one Anand Sharma and it was presented for clearance through Travancore Bank Ltd, D.N. Road, Mumbai and it was paid as well. This amount was also debited from the account of M/s.K&M Manufacturers and Exporters. He had deposed that Ext.P48 was drawn on 21.3.1998 for Rs.1,29,180/- to be encashed from Ext.P47 account of M/s.K&M Manufacturers and it was presented by the 4^th accused Ramakrishnan for debiting the amount from the account of M/s. K&M Manufacturers and Exporters and requested to issue two demand drafts in the names of M/s.Shaw Cashew Company and M/s. K&M Manufacturers and Exporters. PW33 had deposed that since he had told the 4^th accused that the demand drafts could be issued only through account, the amount of Rs.1,29,180/- drawn by using Ext.P48 cheque was redeposited in the account of M/s K&M Manufacturers and Exporters and thereafter two demand drafts, one in the name of M/s.Shaw Cashew Company and another in the name

¶411

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¶413

of M/s. K&M Manufactures and Exporters were issued. He had also identified Ext.P82 as the other cheque submitted by the 4^th accused. He had also deposed that all these cheques were filled by the 4^th accused in his presence and when he enquired about filling the blank signed bank cheque leaves of M/s. K&M Manufactures and Exporters, he replied that the third accused has entrusted him for the purpose of distributing the amount covered by Ext.P8 for several persons. He had also proved Ext.P81 as one of the demand drafts drawn in the name of M/s. K&M Manufacturers and Exporters favouring through the account maintained in Union Bank of India, Quilon to the account of M/s. K&M Manufacturers and Exporters maintained by them in Quilon.

¶414

It is true that he had also deposed that after opening Ext.P47 account, the third accused had not come to the bank, but that does not mean that he had no role in operating the account as claimed by him. Further he is also getting amounts through that account and it cannot be said that he was not aware of the transactions transpired through the account maintained in the name of M/s.K&M Manufactures and Exporters, Mumbai with Federal Bank, Fort Branch, Mumbai. He had no case that he was not aware of those transactions. He cannot pretend ignorance about those

¶415

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¶417

transactions as well. He had no case that he had not handed over the signed cheques to the 4^th accused as well. According to him, all these things were done by him as instructed by PW14 and he had no direct role in the transaction. So it is clear from the evidence adduced on the side of the prosecution that Ext.P10 application with the request

¶418

to issue Letter of Credit for Rs.81 lakhs for M/s. Shaw Cashew Company in favour of M/s. K&M Manufacturers and Exporters was submitted on 5.3.1998 and it was accompanied by Ext.P15 to P18 and all these documents were prepared and submitted on 5.3.1998 after the amount of Rs.70 lakhs obtained through telegraphic transfer made on the basis of the cheque and request made by PW14, the Chairman of Fedex Securities, Mumbai through Dhanalekshmi Bank was not in dispute. It is also not seriously disputed that Ext.P10 application was submitted by the second accused for the purpose of getting the amount to clear the amount of Rs.70 lakhs obtained by him from Fedex Securities. It is also come out in evidence that Ext.P8 along with the documents to be presented before the advisory bank was handed over to the 4^th accused by the first accused and it was entered in Ext.P60 local delivery book and Ext.P60(a) is the relevant entry which will go to show that these documents were received by the 4^th accused from the bank as permitted by the first

¶419

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¶421

accused. The first accused has not disputed these facts when he was examined under section 313 of the Code of Criminal Procedure. His case was that in certain cases instead of sending the Letter of Credit to the advisory bank directly from the issuing bank, they used to hand over the same to the authorised representative or agent of the person. In fact, no attempt was made on the part of the first accused to summon such authorization given by either the buyer namely Shaw Cashew Company or the seller M/s. K&M Manufacturers and Exporters.

¶422

It is also brought out in the evidence of PW45 that he knew the 4^th accused as senior Vice President of Fedex Securities Ltd and it was he who had presented Exts.P49 and P40 cheques on 6.3.1998 and 21.3.1998 for Rs.1,75,000/- and Rs.1,29,180/respectively and it was he who had passed the same. According to him, Exts.P76 and P77 were presented in the bank by one Anil, a peon of Fedex Industries. Non examination of Anil is not fatal in this case because the presentation of Exts.P76 and P77 and passing of the amount covered by Ext.P76 and appropriating the amount by Shaw Cashew Company by crediting the same in their account at Bank of India, Quilon were not in dispute and this was proved through PW14, Madhavan, the Chairman of Fedex Securities Ltd.,

¶423

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¶424

as well. He had also deposed that he knew the third and fourth accused. According to him, the third accused was introduced him by Anand Sharma of Pace International. So the third accused cannot now pretend ignorance about Anand Sharma as this aspect was not seriously challenged when PW14 was cross examined. It is also in a way admitted by the 4^th accused and also deposed by PW14 that when Shaw Cashew Company wanted a short term loan of Rs.70 lakhs he had sent the 4^th accused to Quilon on 4.3.1998 to enquire about the feasibilities of providing such loan to M/s. Shaw Cashew Company. So it is thereafter that the fourth accsued had reached Quilon after discussing with the second accused as to how the loan has to be secured that they could have prepared a plan for applying for Letter of Credit by presenting certain documents of purchase of some quantity of cashew from M/s K&M Manufactures and Exporters, Mumbai and only after consulting with the first accused as to whether that could be possible and only after getting assurance from the first accused that it could be possible and the Letter of Credit can be drawn in favour of M/s. K&M Manufacturers and Exporters, Mumbai accepting the documents produced along with the application and that will be handed over to the 4^th accused for the purpose of securing and realising the loan of Rs.70 lakhs expected to be provided

¶425

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¶427

by Fedex Securities to M/s.Shaw Cashew Company in order to meet their financial crisis, he had sent instructions to PW14 to release the amount. It is seen from the evidence of PW14 that only after getting assurance from the 4^th accused that there is feasibility for providing loan to Shaw Cashew Company and that amount can be secured and the loan can be realized from them without delay and this information was received by PW14 on the morning of 5.3.1998 and it is thereafter that he had made arrangements to submit Ext.P77 application for issuing telegraphic transfer of Rs.70 lakhs by giving Ext.P76 cheque for that amount from the account of Fedex Securities to be transferred to the account of M/s.Shaw Cashew Company.

¶428

Even assuming that PW14 had sent the fourth accused for the purpose of evaluating the feasibility of providing the loan, it cannot be said that it was he who had instructed the 4^th accused to create documents and made arrangements to get the Letter of Credit and take the Letter of Credit back and made arrangements to disburse the amount as directed by them. Such a suggestion was not given to PW14 when he was cross examined by the 4^th accused as well. PW14 had only stated that it was he who had sent the 4^th accused to Quilon to assess the feasibilities of providing loan to Shaw Cashew Company and collect the security document

¶429

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¶431

and there was no instruction given as to what is the nature of security document to be obtained and collecting the blank signed cheques from the third accused as claimed by the 4^th accused in his examination under section 313 of the Code. So it is clear from this that, all these things would have transpired on two days namely 4.3. 1998 and 5.3.1998 after the 4^th accused had reached Quilon as sent by PW14 before Ext.P10 application was filed. Further, it will be seen from the evidence of PWs 23 and 24, the Managers of Tamil Nadu Warehouse Corporation at Tuticorin that there exists no Warehousing Corporation by name Tamil Nadu State Co-operaive Warehousing Corporation, Tuticorin and they have produced Exts.P99 and P100 to prove that no articles were stocked by any institution with name M/s. K&M Manufactures and Exporters in State Warehousing Corporation at Tuticorin as mentioned in Ext.P16 packing list.

¶432

PW41, the Manager of both Tamil Nadu public bonded warehousing Corporation and State Warehousing Corporation at Tuticorin deposed that as per Ext.P116(a) entry in Ext.P116 register maintained during the relevant period that no stock of material namely cashew as refereed in Ext.P16 were deposited in the Warehousing Corporation at Tuticorin. He had also deposed that no warehousing corporation by name Tamil Nadu State Co-operative

¶433

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Crl.A.Nos.109, 127 & 162 of 2008

¶435

Warehousing Corporation existed at Tuticorin. It is true that some suggestions were given to PWs23, 24 and 41 that there are private godowns available for stocking the articles and those stocks will not be entered in the registers maintained by them. If that be the case, the burden is heavy on accused 2 and 3 to prove as to where exactly the materials mentioned in Exts,P15 and P16 were stocked and when it was taken delivery and when it reached the stocking place of Shaw Cashew Company. No such evidence was adduced either on the side of the second accused or third accused. There is no dispute regarding the signature seen in these disputed documents and this was proved through the evidence of PW49, the handwriting expert and Exts.P127 and P28 opinions given by him that the disputed signature and handwriting in the disputed documents relied on by the prosecution, namely the four blank signed cheques given by the third accused to the 4^th accused, which were encashed by the 4^th accused by filling the same in his handwriting and Exts.P10, P15 to P18 were in the handwriting and signatures of the persons by whom the prosecution had stated to have been prepared the same namely accused 2 to 4. It is true that mere filling of blank signed cheques given by a party authorizing to do the same will not amount to forgery. But, if the accused knew the same that other documents were prepared for the

¶436

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¶438

purpose of achieving the object that has been hatched on account of the conspiracy and pursuant to the conspiracy and achieving the object the cheques were obtained and filled by him and realised the proceeds or distributed proceeds, then he is also said to be a person participated in executing the conspiracy of creating false documents and submitting the same as genuine documents coupled with other overt acts committed by him. So, he cannot simply say that he was not aware of the same and he is innocent as claimed by him in view of the clinching evidence available in this case to connect him with the conspiracy and execution of the object of the conspiracy hatched.

¶439

It is also seen from the evidence of PW26, who was earlier employed in Malabar Cashew Company situated in NNC estate that he was familiar with Anand Sharma, who worked as Operation Manger of Pace International and under the instructions of Anand Sharma, PW27, Prabhakaran, who was working in Rajmohan Cashew Company situated in the same compound that he had prepared the letterheads and seal of M/s. K & M Manufacturers and Exporters and Exts.P16 and P18 are similar letterheads prepared accordingly. He had also stated that he knew the third accused, who used to visit the witness, for the purpose of meeting Anand Sharma.

¶440

80.PW27 had corroborated the evidence of PW26 that he

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¶442

¶443

was working as peon of Rajamohan Cashew Company and as requested by Anand Sharma, who was working as Personal Secretary to Rajmoham Cashew Company, prepared letterhead and rubber seal for M/s. K & M Manufactures and Exporters and according to him, it was done through one Raj Sundhar (PW28) and he had handed over the same to PW26 for printing the letterhead and preparing the seal and they were collected and handed over to Anand Sharma. Non examination of Anand Sharma is not fatal in this case as the fact to be proved through him were proved through the above witness and PW14 Madhavan.

¶444

PW28 had deposed that he was a cashew broker in the locality and he used to prepare documents similar to Exrt.P14 series, the Bill of Exchange. He was examined to prove that he was prepared the same as instructed by the third accused but he denied the same, but he had admitted that he knew the third accused, who was also engaged in cashew agency business and he was the son of Advocate Velappan Pillai of Quilon.

¶445

PW30, Mohandas, was the typist working in the office of Adv.Velappan Pillai, the father of the third accused, during the period 1978 to 2005. He had admitted that MO2 typewriter was seized by PW50 on 8.10.1999 and he had signed Ext.P103 seizure

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memo, by which MO2 typewriter was seized from the office of Adv.Velappan Pillai. He has also identified the signature found in the documents containing the specimen typewritings made using MO2 typewriter which were also seized as per Ext.P103 seizure memo, marked as Ext.P104 series. He had also admitted his signature in Ext.P104 series as the person who typed those specimen typewriting marked as S141 to 185 and that was also seized by PW50 as per Ext.P103 seizure mahazer. Though he had admitted that he had typed certain things and also admitted that he had signed Exts.P103 and P104 series, he had denied having done the same from the office of Adv. Vellapan Pillai of Quilon, but according to him, he had done all those things as directed by PW50 under coercion as otherwise he will be made as an accused. He had also denied having prepared Exts.P13 to P15 by using MO2 typewriter as instructed by the third accused.

¶448

It will be seen from the evidence of PW42 Sri.P.N.Sukumaran Nair, Division Manager, P.N.S.B Section of Quilon branch of State Bank of Travancore and PW43, P.S. Venkideswaran, Assistant Manager of State Bank of Travancore, Quilon branch, that they were present at the time when MO2 typewriter was produced by PW30 Mohan Das, the Advocate Clerk attached to the office of Advocate Velappan Pillai of Quilon, who is the father of the third

¶449

¶450

Crl.A.Nos.109, 127 & 162 of 2008

¶451

accused and seized the same as per Ext.P103 seizure memo. They have also deposed that they were also present at the time when PW30 had typed certain matter from the typewriter containing 43 sheets using MO2 typewriter and seizing the same as per Ext.P103 seizure memo. So it is clear from the evidence that MO2 typewriter was produced by PW30 and it was seized by PW50 as per Ext.P103 seizure memo and it was witnessed by PWs 42, and 43. Though PW30 turned hostile, quite naturally as he is an advocate clerk attached to the father of the 3^rd accused, the fact that MO2 typewriter and Ext.P104 series typewriting impressions taken from MO2 typewriter were seized and the fact that PW30 had admitted his signature in Ext.P103 and 104 series coupled with evidence of PWs 42 and 43 that MO2 were produced by PW30 and Ext.P104 series were the typewriting impressions taken from MO2 typewriter is proved by the prosecution. Merely because MO2 typewriter was not produced for the expert examined as PW49 alone is not sufficient to come to the conclusion that his opinion Ext.P127 and 128 are not reliable. Once it is proved by the prosecution that typewriting impressions seen in Ext.P104 series were taken from MO2 typewriter and if it is proved that the typewriting impressions seen in the disputing documents namely Ext.P14(a) and P14(b) and Ext.P15 series were produced for

¶452

¶453

Crl.A.Nos.109, 127 & 162 of 2008

¶454

comparison by PW49 and after verifying the same, if he had given an opinion, that those typewriting impressions seen on both the disputed and admitted documents could be prepared by using the same typewriter is admissible in evidence as opinion evidence under section 45 of the Evidence Act as discussed in the decisions discussed above.

¶455

It is true that opinion evidence is not conclusive evidence and it is for the court to consider the same with other attending circumstances. Even assuming that the opinion evidence is not available even then the fact that those disputed documents were signed by both second and third accused with the seal seen on them which belong to the institutions of second and third accused alone is sufficient to come to the conclusion that those documents were prepared by the accused Nos.2 and 3. It is not necessary always for the purpose of attracting offence under Section 465 and 468 of the Indian Penal Code to prove forgery that the signature seen in the document has to be forged. If it is proved by the prosecution that the documents were prepared with false contents known to the persons who were preparing same and if it is known to them that those contents were false and with that knowledge they have prepared the same for the purpose of presenting it before some authority for getting some benefit, then than will be sufficient for the purpose of coming

¶456

¶457

Crl.A.Nos.109, 127 & 162 of 2008

¶458

with the definition of preparing false documents as described under section 465 of the Indian Penal Code so as to convict them for the offence under section 468 of the Indian Penal Code. If those documents were produced before some authority or institution for the purpose of getting some benefit knowing that they are false documents and if on the basis of those documents, the benefit they want has been obtained from the institution, then it will amount an offence under section 471 of the Indian Penal Code for presenting a false document or forged document before the institution knowing that they are forged or false documents and getting the benefit by producing the same. So under the circumstances, the court below was perfectly justified in coming to the conclusion that the documents produced along with Et.P10 application by second accused for the purpose of getting Ext.P8 letter of credit were false documents prepared by second and third accused, knowing that they are false documents and knowing the purpose for which it was created for getting the benefit by producing the same bank and thereby they have committed the offence punishable under section 468 and 471 of the Indian Penal Code.

¶459

Merely because third accused had contended that he was only a name lender alone is not sufficient to exonerate him from

¶460

¶461

Crl.A.Nos.109, 127 & 162 of 2008

¶462

the criminal liability because he had obtained the benefit by producing those documents and obtaining Ext.P8 letter of credit as some portion of the amount was received by him which was credited in the account in Union Bank of India, Quilon branch. He is also expected to say that he had not given the blank singed cheques to the 4^th accused if it is used for the purpose of withdrawing the amount by discounting the letter of credit and distributing the amount between Fedex Securities, Mumbai, second accused third accused, fourth accused and one Anand Sharma. Further it will be seen from the evidence adduced on the side of the prosecution regarding the discounting of the cheque and disbursement of the amount covered by the amount obtained by discounting Ext.P8 were not disputed by the fourth accused also in his 313 examination. According to him, he had done all these things as directed by PW14 as employee of the Fedex Securities and without knowing his genuineness is very difficult to believe.

¶463

Further it will be seen from the evidence that the documents which were required for the purpose of producing the same before the first accused were prepared/created by second and third accused after the fourth accused had reached Kollam on 4.3.1998 and before it was presented in bank on 5.3.98. It is also clear from the evidence that only after satisfying that there are certain documents

¶464

¶465

Crl.A.Nos.109, 127 & 162 of 2008

¶466

which can be accepted by the bank for the purpose of getting a letter of credit which can be obtained by the 4^th accused that on the basis of the instructions given by the 4^th accused from Quilon on 5.3.98, PW14 had sanctioned Rs.70,00,000/- of short term loan to M/s.Shaw Cashew Company and it was thereafter that the amount was transferred by telegraphic transfer to the account of Shaw Cashew Company maintained in Bank of India, Quilon branch on 5.3.98 through Dhanalakshmi Bank, Quilon Branch. It is seen from the evidence of PW14 that if he was aware of the fact that the documents produced along with Ext.P10 and attached to Ext.P8 letter of credit were not genuine documents, he would not have sanctioned the loan in favour of M/s. Shaw Cashew Company will go to show that he had never instructed fourth accused regarding the documents to be collected for that purpose. It will be seen from Ext.P16(a) entry in Ext.P16 local delivery register maintained in the Bank of India, Quilon that letter of credit was delivered to fourth accused. So the stand taken by the fourth accused in his 313 examination that he did not go to the bank to collect Ext.P8, but it was handed over to him by the second and third accused in a sealed cover is not correct and it was disproved by the documentary evidence adduced on the side of the prosecution. So under such circumstances, it cannot be said as contended by the

¶467

¶468

Crl.A.Nos.109, 127 & 162 of 2008

¶469

counsel for the fourth accused, that he is innocent person and he was not aware of the genuineness of the documents and he was only acting as a collecting agent of the documents as instructed by PW14 appears to be not correct.

¶470

On the other hand, the evidence will go to show that he was an active participant in all those things and he had played a role in creating the document for the purpose of getting the letter of credit as a security for the short term loan to be given known fully well that the proceeds under Ext.P8 are not going to be utilised for the benefit of M/s.K & M Manufacturers and Exporters, Mumbai of which third accused is the proprietor and this document is going to be used for the purpose of discharging the liability of Fedex Securities by the second accused and with that knowledge he had collected the documents and used the documents for discounting the same and appropriated the amount due to Fedex Securities. It is settled law that conspiracy is something which will be hatched in secrecy and direct evidence will be difficult for proving conspiracy. Court will have to evaluate the attending circumstances and the role played by each accused in fulfilling the object of the criminal conspiracy to ascertain as to whether there was any conspiracy hatched between the parties. It is also settled law that it is not necessary that all the conspirators will

¶471

¶472

Crl.A.Nos.109, 127 & 162 of 2008

¶473

have to sit together for the purpose of forming an agreement at the same time. But if some of the conspirators after knowing the object of the conspiracy, participated on a later occasion in achieving the object of the conspiracy, then they also can be held responsible for the offence of committing conspiracy under Section 120A and punishable under section 120B of the Indian Penal Code.

¶474

It is also settled law that in order to attract the offence under section 420 of the Indian Penal Code, the prosecution has to prove that, on account of the dishonest inducement made by the accused, somebody else was made to part with some property. But for the inducement, the property would not have been parted with, then the offence under section 420 is complete. It is noted that the object has not been subsequently fulfilled by the person who had made the inducement. That is one of the ingredients established by the prosecution so as to infer a circumstance that even at the time when the inducement was made, there was no possibility for the accused to fulfill the promise made by him to infer the dishonest intention on the part of the accused making the inducement. It is also settled law that, merely because the amount which was obtained by dishonest intention was later repaid and no actual loss was caused to the complainant is not sufficient to exonerate the accused from the criminal liability of

¶475

¶476

Crl.A.Nos.109, 127 & 162 of 2008

¶477

cheating, that may only be taken as a mitigating circumstance show leniency at the time of imposing sentence. In this case it is clear from the evidence that accused Nos.2 to 4 on account of the conspiracy hatched and for the purpose of getting a security for the short term loan to be given to M/s.Shaw Cashew Company by Fedex Securities created certain false documents and submitted those documents through second accused before the bank giving knowing fully well that they are false documents and the purpose for which the application was made is not for the real purpose but for some other purpose for getting some unlawful gain for the second accused, to obtain a short term loan from the Fedex Securities, but for the inducement made by the second accused by producing those documents the bank would not have released the amount of Rs.81,00,000/- for the benefit of the second accused, who was the managing partner of M/s.Shaw Cashew Company in the name of M/s. K & M Manufacturers and Exporters, Mumbai and thereby they have committed the offence punishable under section 420 of the Indian Penal Code as well and th court below was perfectly justified in convicting the accused Nos.2 to 4 for the said offence as well. It is also clear from the evidence that the amount covered by Ext.P8 letter of credit was later honoured by the issuing bank by sending 9 DD of Rs.9,00,000/- each and that was utilized by

¶478

¶479

Crl.A.Nos.109, 127 & 162 of 2008

¶480

the advising bank and that amount was not paid by M/s.Shaw Cashew Company on the date of payment namely 1.9.98, but only later this was paid. It is also brought out in evidence that the entire liability of M/s.Shaw Cashew Company namely Rs.3.3 crores was later settled for Rs.1.5 crores as one time settlement. So the court below was perfectly justified in convicting accused Nos.3 and 4 as second is no more for the offence under Section 120B, 468, 471 and 420 of the Indian Penal Code and rightly convicted them for the said offence and this court did not find any reason to interfere with that finding of the court below to acquit the accused for the above said offence.

¶481

As far as the first accused is concerned, there is no evidence adduced on the side of the prosecution to prove that first accused has aware of the fact that the documents produced were false documents and also there is no evidence to show that the second accused had availed any facility from Fedex Securities and this has to be used for the purpose of discharging that liability and the proceeds mentioned in Ext.P8 are not to be used for the benefit of M/s.K & M Manufacturers and Exporters, Mumbai of which third accused was the proprietor. Further it will be seen from prosecution evidence itself, that even on prior occasions on the same conditions, letter of credit was issued in favour of M/s.Shaw Cashew Company favouing M/s.K &

¶482

100

¶483

Crl.A.Nos.109, 127 & 162 of 2008

¶484

M Manufacturers and Exporters, Mumbai. This was admitted by DW2 and PW4 as well. The conditions mentioned in Ext.P52 and P72 are more or less similar as mentioned in Ext.P8, letter of credit. It is true that DW2 had deposed that he had never handed over the letter of credit either to the seller or to the beneficiary, but it will be send to the advising bank. I am not going to the question as to whether the letter of credit issued is on DA basis or DP basis so as can do the nature of the documents to be collected for sanctioning the facility as even on earlier occasions on the same conditions, letter of credit has been issued in favour of M/s.Shaw Cashew Company of which second accused was the managing partner favouring M/s.K & M Manufacturers and Exporters, Mumbai of which third accused was the proprietor.

¶485

It is true that it was admitted by the first accused as well as his counsel that in the departmental enquiry he was found guilty of not following the formalities in issuing the letter of credit / Ext.P8 and he was provided with a minor punishment alone. It is settled law that the finding arrived at by the enquiry authority as such is sufficient in a criminal proceedings to exonerate the first accused. But those things also can be taken into account with other circumstances so as to come to a conclusion whether the evidence adduced is sufficient to come to a conclusion that first accused had

¶486

101

¶487

Crl.A.Nos.109, 127 & 162 of 2008

¶488

dishonest intention of abusing his official position to favour a person so as to attract the offence of misconduct under section 13(d)(iii) of the Prevention of Corruption Act so as to convict him for the said offence. It is settled law that mere irregularities committed by the first accused and issuing certain facility to a customer in the usual course of his business as a manager alone is not sufficient to convict him for the offence under section 13(1)(d) read with section 13(2) of the Prevention of the Corruption Act, unless the prosecution was able to prove that he had the dishonest intention in doing that act. From the evidence it is difficult to come to such a conclusion that the prosecution has proved beyond reasonable doubt that he had the dishonest intention of favouring the second accused to get the benefit knowing that it was not really going to be used for that purpose. Since letter of credit was issued in the same manner to the second accused M/s.Shaw Cashew Company who was a customer rated with higher ranking, issuing the facility of letter of credit on the basis of the documents produced by them cannot be said to be an illegal act done with dishonest intention by the first accused. Further the issuing bank is not expected to go into the genuineness of the documents produced for the purpose of granting the facility and they are not expected to go into the question as to whether the articles were really received or

¶489

102

¶490

Crl.A.Nos.109, 127 & 162 of 2008

¶491

expected to receive as well at the time of issuing the letter of credit. Further there is no evidence to show that first accused had any contact with accused Nos.2 to 4 for the purpose of creating the documents for submitting the application for letter of credit and it was on that basis the documents were prepared and submitted and he had granted the facility so as to draw an inference of dishonest intention on his part and caused loss to the bank as well at the time when he had issued Ext.P8 letter of credit. Mere suspicion on certain circumstances that he could have participated alone is not sufficient to convict the first accused for the offence alleged, unless the circumstances leading to such conclusion are established by the prosecution by adducing cogent evidence beyond reasonable doubt, but such an evidence is lacking as regards the first accused is concerned in this case. So under the circumstances, the finding of the court below that first accused also hatched conspiracy with other accused persons and abusing his official position with dishonest intention favoured the second accused to get some benefit and thereby committed criminal misconduct under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act and also committed the offence under section 120B for the purpose of committing the offence under section 468, 471 and 420 of the Indian penal Code by other accused persons is unsustainable in

¶492

103

¶493

Crl.A.Nos.109, 127 & 162 of 2008

¶494

law and the same is liable to be set aside and he is entitled to get acquittal of those charges levelled against him giving him the benefit of doubt.

¶495

Merely because the investigating officer had not conducted the investigation regarding the documents to be collected for the purpose of granting letter of credit on DA or DP basis and he had not conducted investigation as to whether the amounts covered by Ext.P8 has been later discharged before filing the final report alone is not sufficient to come to the conclusion that he had not conducted fair investigation as contended by the counsel for the fourth accused. It is settled law that the investigating officer is not expected to conduct investigation on all aspects anticipating the defence to be raised by the accused at the time of trial and to overcome those defences by prosecution and collect evidence also in favour of the accused to prove his defence or disprove his defence. So non collection of evidence on this aspect alone is not sufficient to come to the conclusion that the investigation conducted is not fair. The statement recorded by the investigating officer of the witnesses will go to show that it is on the basis of those evidence collected by him, he had come to the conclusion that the accusation made against the accused were prima facie proved for the purpose of submitting the final report against

¶496

104

¶497

Crl.A.Nos.109, 127 & 162 of 2008

¶498

them and the genuineness of the accusation etc., are to be evaluated by the court so as to come to a conclusion that the materials so produced are sufficient to convict the accused or not. Further merely because certain amounts collected by the fourth accused were utilised for some other purpose and that was said to be credited in the account of Trinity Securities alone is not sufficient to come to the conclusion that the fourth accused had not gained anything on account of the same. Further Ext.D2 document has not been proved by the person who issued the same and there is no evidence before the court whether fourth accused had got any connection with Trinity Securities or not as well. Those things are within the knowledge of the fourth accused and it is for him to prove the same by adducing cogent evidence, which has not been done in this case. So under the circumstances, it cannot be said that PW50 had not conducted fair investigation and thereby all the accused have entitled to get acquittal is without any substance and the same is rejected.

¶499

It is true that in the first information statement the present fourth accused Ramakrishnan was not included as accused. DW2 Muraleedharan was shown as the first accused in the first information report and later he was deleted and present fourth accused Ramakrishnan was included. Merely because the present

¶500

105

¶501

Crl.A.Nos.109, 127 & 162 of 2008

¶502

fourth accused was not included in the first information report is not a ground for acquittal as on the basis of evidence collected later, if it is revealed that some other person was also involving, then there is no wrong ti enquire that person in the final report and if their evidence to correct him with the commission of crime and convict him by the court. So that is also not a ground for acquittal of the present fourth accused as claimed by the counsel for the fourth accused in the case. So the first accused is acquitted of the charge levelled against him giving him the benefit of section 120(b) read with section 468, 471 and 420 of the Indian Penal Code and section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, but the finding regarding conviction against accused Nos.3 and 4 are hereby confirmed. The points are answered accordingly.

¶503

Point No.VII

¶504

In view of the fact that this court has found that the prosecution has failed to prove beyond reasonable doubt that the first accused had committed the offence under section 120B read with section 468, 471 and 420 of the Indian Penal Code and section 13(1) (d) and read with section 13(2) of the Prevention of Corruption Act and he is acquitted of those charges, the sentence imposed against him is also not proper and the same is liable to be set aside. He is acquitted

¶505

106

¶506

Crl.A.Nos.109, 127 & 162 of 2008

¶507

of the charge levelled against him giving him the benefit of doubt. He is set at liberty.

¶508

As regards accused Nos.3 and 4 are concerned, the court below had sentenced them to undergo rigorous imprisonment for one year and also to pay a fine of Rs.25,000/- each for each offence and in default to undergo rigorous imprisonment for three months each for the offence under section 420 read with section 120B, 468 read with section 120B and 471 read with section 120B and directed the substantive sentence to run concurrently and set out was allowed for the period of detention already undergone by them under section 428 of the Code of Criminal Procedure. Leniency has been shown as against them considering the fact that the amounts were later settled by the second accused and the liability created as per Ext.P8 has been cleared. It cannot be said under the circumstances that the sentence imposed is harsh or excessive. This court do not find any reason to interfere the sentence imposed against the accused Nos. 3 and 4. The point is answered accordingly.

¶509

In the result, Crl.A.Nos.127/2008, 162/2008 fail and the same are hereby dismissed. The order of conviction and sentence passed by the court below against the appellants in those cases for the offence under section 120B read with section 468, 471 and 420 of the

¶510

107

¶511

Crl.A.Nos.109, 127 & 162 of 2008

¶512

Indian Penal Code are hereby confirmed.

¶513

The appellant in Crl.Appeal No.109/2008 succeeds and the appeal is allowed. The order of conviction and sentence passed by the first accused under section 13(1)(d) read with section 13(2) and section 120B read with section 468, 471 and 420 of the Indian Penal Code are hereby set aside and he is acquitted of those charges levelled against him giving him the benefit of doubt. He is set at liberty. The bail bond executed by him will stand cancelled. The fine amount if any remitted by him is directed to be refunded to him on making necessary application by him before the court below. Office is directed to communicate this judgment to the court below at the earliest.

¶514

Sd/-

¶515

K. RAMAKRISHNAN, JUDGE.

¶516

cl/ss

¶517

/true copy/

¶518

P.S to Judge

Georgekutty Kurian v. State of Kerala

Case brief

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Georgekutty Kurian v. State of Kerala

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