Allowed

Rema Babu v. State of Kerala

Kerala HC11 Oct 2023Crl.Rev.Pet/467/2011

Case brief

AI extract

What is this about?

This revision petition convicted a bank manager for forgery and cheating due to alleged forged documents and spurious gold pledges. The High Court set aside the conviction, citing fatal delays, lack of independent investigation into fictitious addresses, doubts about gold authenticity, and discrepancies in witness testimony.

What did the court decide?

Impugned judgments set aside; accused held not guilty; accused set at liberty; bail bonds cancelled.

Rema Babu Vs State of Kerala — Cheating and Forgery | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶4

WEDNESDAY, THE 11TH DAY OF OCTOBER 2023 / 19TH ASWINA, 1945

¶5

CRL.REV.PET NO. 467 OF 2011

¶6

AGAINST THE JUDGMENT DATED 20.10.2010 IN CRA 329/2009 OF
 ADDITIONAL DISTRICT COURT, FAST TRACK COURT(ADHOC-I), KOZHIKODE

¶7

AGAINST THE JUDGMENT DATED 2304.2009 IN CC NO.241/2002 OF
JUDICIAL MAGISTRATE OF FIRST CLASS,KUNNAMANGALAM

¶8

REVISION PETITIONER/APPELLANT/ACCUSED:

¶9

REMA BABU,
S/O. BABU,
CHOTHI HOUSE, EAST HILL APARTMENT,
EAST HILL, KOZHIKODE.

¶10

BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.V.C.SARATH

¶11

RESPONDENT/RESPONDENT/COMPLAINANT:

¶12

STATE OF KERAL,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.

¶13

OTHER PRESENT:

¶14

SR PP SMT SEETHA S

¶15

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 11.10.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶16

Crl.R.P.No.467/2011

¶17

-:2:-

¶18

Dated this the 11^th day of October,2023

¶19

O R D E R

¶20

The revision petition is filed questioning the legality and correctness of the judgments passed in Crl.A.No.329/2009 by the Court of the Additional Sessions Judge, Fast Track Court (Adhoc-I), Kozhikode(Appellate Court) and in C.C. No.241/2002 by the Court of the Chief Judicial Magistrate, Kunnamangalam (Trial Court), concurrently finding the revision petitioner guilty and convicting and sentencing her for the offences under Sections 406, 408, 465, 468 & 471 of the Indian Penal Code, 1860(in short, ‘IPC’). For the sake of convenience, the parties are referred to as per the status before the Trial Court.

¶21

Factual narrative:

¶22

The prosecution case is that Komalavally (PW1) was conducting a private bank named ‘Rathi Bankers’. The accused was the manager of the bank during the period from 23.11.1999 to 10.03.2001. The

¶23

Crl.R.P.No.467/2011

¶24

-:3:-

¶25

accused had forged documents and pledged spurious gold ornaments in the bank and misappropriated Rs.1,66,900/-. PW1 lodged Ext P8 complaint before the Vanitha Police Station and Ext P13 First Information Report [FIR] was registered. Later, the FIR was transferred to the Medical College Police Station and Ext P12 FIR was re-registered as Crime No.74/01. The Police, after investigation, filed the final report finding the accused to have committed the above offences.

¶26

The accused appeared before the learned Magistrate and pleaded not guilty to the substance of the accusations read over to her. In the trial, the prosecution examined PWs 1 to 7 and marked in evidence Exts P1 to P19 and MOs 1 to 17. The accused denied the incriminating circumstances appearing against her in the evidence in the questioning under Section 313 of the Code of Criminal Procedure, 1973 (‘Code’, in short).

¶27

The learned Magistrate, after analysing the

¶28

Crl.R.P.No.467/2011

¶29

-:4:-

¶30

materials placed on record, found the accused guilty of the offences under Sections 406, 408, 465, 468 and 471 of the IPC and convicted and sentenced her to undergo simple imprisonment for one year for the offence under Section 406, for two years and to pay a fine of Rs.2,000/- (in default to undergo simple imprisonment for a further period of two months) for the offence under Section 408, to undergo simple imprisonment for one year for the offence under Section 465, to undergo simple imprisonment for two years and pay a fine of Rs.1,000/- (in default to undergo simple imprisonment for a further period of one month) for the offence under Section 468, and to undergo simple imprisonment for two years and pay a fine of Rs.1,000/- (in default to undergo simple imprisonment for a further period of one month) for the offence under Section 471. The sentences were ordered to run concurrently.

¶31

Aggrieved by the judgment, the accused

¶32

Crl.R.P.No.467/2011

¶33

-:5:-

¶34

preferred Crl.A.No.329/2009 before the Appellate Court.

¶35

The Appellate Court, after re-appreciating the materials placed on record, dismissed the appeal and confirmed the conviction and sentence passed by the Trial Court.

¶36

It is assailing the said judgments; the present revision petition is filed.

¶37

Heard; Smt. Sruthy K.K, the learned counsel arguing on behalf of Sri. P.M. Rafiq, the counsel appearing for the revision petitioner and Smt. Seetha S., the learned Senior Public Prosecutor appearing for the respondent – State.

¶38

It is trite that the revisional power of this Court is to be sparingly exercised to correct patent errors, manifest illegalities and when there is total misreading of records. Merely because a different view is possible, the Revisional Court is not supposed to re-appreciate the evidence and take a different view

¶39

-:6:-

¶40

Crl.R.P.No.467/2011

¶41

from the fact-finding courts.

¶42

Considering the above principles, this Court proceeds to decide the revision petition.

¶43

The prosecution case is that the accused, while working as Manager for PW1, during the period 23.11.1999 to 10.03.2001, committed criminal breach of trust by forging documents and pledging spurious gold in the names of fictitious persons and misappropriated Rs.1,66,900/-.

¶44

To prove the prosecution case, PWs.1 to 7 were examined, and Exts P1 to P19 and MOs 1 to 17 were proved.

¶45

PW 1, testified that the accused had collected 17 items of gold ornaments as collateral security and disbursed loans to 15 persons, who were all fictitious people. It was the accused who made the entries in Ext P3 deposit register and it was her duty to verify the

¶46

gold ornaments pledged in the bank and if ,the value of the loan exceeded Rs.5,000/- then the purity of the gold

¶47

Crl.R.P.No.467/2011

¶48

-:7:-

¶49

offered as security had to be certified by an Appraiser. Every evening the accused used to entrust the pawned gold to PW 1 at her residence and the gold was kept in the chest maintained by PW1. In the third month of 2001, PW.1 felt suspicious of the accused's action and on verification of the records, she realised that MOs 1 to 17 were made of spurious gold. On examination of the documents maintained in the bank, PW1 realised that it was the accused who wrote the documents and received the money. Accordingly, PW 1 made the accused issue Ext P1 series notices to the 17 customers, out of which 11 notices marked as Ext P4 series returned with an endorsement as ‘not known’. Immediately, on 23.03.2001, PW1 lodged Ext P8 complaint before the Vanitha Police Station, which was subsequently transferred to the Medical College Police Station, Kozhikode, and Ext P12 FIR was registered. Thereafter, she produced the documents, including MOs 1 to 17, before the Police.,

¶50

Crl.R.P.No.467/2011

¶51

-:8:-

¶52

To corroborate the version of PW1, the prosecution examined PW2, who proved Ext.P12 FIR; PW3, who deposed that the accused was working as the Manager of PW1 and she had witnessed the search conducted by PW7 in the house of the accused and had attested ExtP4 search register; PW4 – a goldsmith – who had verified MOs 1 to 17 and found the gold to be spurious; PW5, who had attested Exts P9 and P10 mahazars; PW6 who had attested Ext P11 seizure mahazar of MOs1 to 17; PW7 – the Investigating Officer – who had seized the documents and properties as per Exts P9 to P11 seizure mahazars, Ext P15 passbook of the accused and Ext P16 series receipts (two receipts issued by the fashion jewellery) and Ext P17 receipt book of the bank.

¶53

The courts below, after analysing the materials placed on record, concurrently concluded that the accused had committed the above offences.

¶54

On scrutiny of the oral testimony of PW1, it

¶55

Crl.R.P.No.467/2011

¶56

-:9:-

¶57

can be gathered that it was in March 2001 that PW1 suspected breach of trust and forgery committed by the accused. Undisputedly, PW1 lodged Ext P8 complaint only on 23.03.2001. PW1’s explanation for the delay is that, even though she was suspicious of the action of the accused, she made the accused issue 17 postcards to the 15 persons covered by Ext P1 pledge bonds and only when Ext P4 series postcards (eleven in number) returned with the endorsement that there was ‘no such person, she was convinced that they were fictitious people and the accused committed the offences. This, according to me, is fatal to the prosecution because there was no need for PW1 to have waited for the return of postal covers to complain to the Police. If that be the case, admittedly, six letters were served on the addresses and there is no explanation on this aspect. However, the crucial aspect is that MOs 1 to 17 were always in the possession of PW1. At one place she stated that she was convinced

¶58

-:10:-

¶59

Crl.R.P.No.467/2011

¶60

that the accused committed the offences one week prior to Ext P8 complaint, but at another place in her testimony, she stated that she was aware of the same three weeks prior to lodging of the complaint. The inconsistencies and contradictions in the oral testimony of PW1 and the fact that MOs 1 to 17 were in possession of PW1 do not inspire confidence in this Court to accept the prosecution version.

¶61

Another glaring infirmity in the prosecution case is that, other than for the interested testimony of PW1 and the materials produced by her, the prosecution has not raised its little finger to independently investigate and ascertain the names, addresses and whereabouts of the eleven fictitious characters. The prosecution ought to have independently investigated whether such persons were sending in the addresses or at least made the postman who endorsed Ext P7(a) letter covers a witness and proved that the addresses were non-existent persons.

¶62

Crl.R.P.No.467/2011

¶63

-:11:-

¶64

Instead, the prosecution has parroted and blindly believed the interested statement of PW1 and framed the accused for the offence of forgery, which is unsustainable in law. Surprisingly, this aspect was misread by the courts below. Viewed in the above angle, this Court holds that the prosecution has miserably failed to prove beyond reasonable doubt that the accused has committed the offence of forgery and, hence, the accused is entitled to the benefit of doubt.

¶65

Yet another material aspect that was lost sight of by the courts below is that there is no independent assessment of the purity of MOs 1 to 17 gold ornaments other than for interested oral testimony of PW4. The credentials of the PW 4 being a goldsmith and the scientific method adopted by him to verify the purity of the gold has not been proved or established. Furthermore, the credibility of the socalled sterling witness has been impeached by the defence in the bringing out the inconsistencies in the

¶66

Crl.R.P.No.467/2011

¶67

-:12:-

¶68

oral testimonies of PWs 4 and 7. The goldsmith (PW4) testified that he verified the purity of the gold ― ornaments at the Police Station, whereas PW7 the ― Investigating Officer testified that PW4 tested the purity of the gold ornaments at the residence of PW1. This is a material contradiction which crumbles the prosecution case relating to the offences under Sections 406 and 408. The prosecution ought to have independently checked the purity of the gold ornaments, which is the foundation of its case. Similarly, the courts below have failed to perceive that the gold ornaments were entrusted on a daily basis by the accused to PW1 and were in the safe custody of PW1 in the chest kept at her residence. Therefore, the burden of proof was on the prosecution to prove that MOs 1 to 17 were made of spurious gold ornaments at the time they were entrusted by the accused to PW1. This important link is missing in the materials on record, which goes to the roots of the matter and

¶69

-:13:-

¶70

Crl.R.P.No.467/2011

¶71

compels this Court to give the benefit of doubt to the accused.

¶72

In addition to the above lacuna, there is no material on record to establish on what basis the prosecution has quantified PW1’s loss at Rs.1,66,900/-. The prosecution has not seized or produced the cash book or any other material of PW1’s concern to establish the transaction. It is just based on PW1’s complaint and surmises the prosecution has arrived at the above figure. Even otherwise, there is no independent investigation conducted by PW7. It is solely on the material supplied by PW1, that PW7 has filed the final report.

¶73

The courts below, instead of going to the root of the matter i.e., to ascertain on what material the prosecution has alleged MOs 1 to 17 were made of spurious gold, what are the credentials of PW4, what is the proof that eleven addresses were not residing in the addresses shown in the postcards, simply accepted

¶74

-:14:-

¶75

Crl.R.P.No.467/2011

¶76

the prosecution version and held that, since the accused has signed on the pledge bonds and books receipts, she has committed forgery. This is misconceived because the accused was the Manager and had to sign on behalf of PW1 in all the records. I have verified and compared the handwritings on Ext P1 series pledge bonds and Ext P2 series pledge books in exercise of the powers of this Court under Section 73 of the Indian Evidence Act I am convinced that the handwritings and signatures in the pledge bonds and books are of different persons, which are only counter-signed by the accused. The counter-signing of the said documents by the accused was her duty, therefore, she cannot be saddled with the offence of forgery.

¶77

In the above conspectus, when there are missing links in the chain of the prosecution version, I am of the definite view that the prosecution has miserably failed to prove the ingredients of Sections

¶78

Crl.R.P.No.467/2011

¶79

-:15:-

¶80

405 and 463 of the IPC, to hold the revision petitioner guilty for the offences under Sections 406, 408, 468, 465 and 471 of the IPC. The findings and conclusions arrived at by the courts below in the impugned judgments are perverse, improper and on a total misreading of the records. Since the prosecution has failed to prove beyond reasonable doubt that the accused has committed the offences, the accused is entitled to the benefit of doubt. Thus, I set aside the judgments and, consequentially, the conviction and sentence imposed on the revision petitioner/accused and set her at liberty.

¶81

In the result,

¶82

(i) The revision petition is allowed;

¶83

(ii)The impugned judgments and the conviction and sentence imposed by the courts below are set aside.

¶84

(iii) The accused is held not guilty for the offences charged against her.

¶85

Crl.R.P.No.467/2011

¶86

-:16:-

¶87

(iv) The bail bonds executed by the accused and sureties are hereby cancelled

Sd/-

C.S.DIAS,JUDGE

DST/11.10.23

//True copy//

P.A.To Judge

Rema Babu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rema Babu v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Kollam Co-Operative Agrl.Bank Ltd. Vs State of Kerala

Jayalal C.D. @ Chandran Vs State of Kerala and Another

Druvan Vs State of Kerala

Thampi Varghese Vs Jiby Sara Joseph

C.B.Shaji @ Kainakari Shaji Vs L.P.Prakash

N.K.Surendran Vs K.v.Rukhiya and Another