Karnataka High Court

Ashok S/O. Srinivas Shanbhag vs The State Of Karnataka on 1 February, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                                        NC: 2024:KHC-D:2314
                                                         CRL.A No. 2633 of 2012




                          IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 1ST DAY OF FEBRUARY, 2024

                                               BEFORE

                              THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

                                 CRIMINAL APPEAL NO. 2633 OF 2012 (C)

                       BETWEEN:

                       SHRI ASHOK S/O. SRINIVAS SHANBHAG,
                       AGE: 55 YEARS, OCC: DEVELOPMENT OFFICER,
                       NEW INDIA ASSURANCE CO. LTD.,
                       HUBLI DIVISION OFFICE, HUBLI.
                                                                   ...APPELLANT
                       (BY SRI ASHOK R. KALYANSHETTY, ADVOCATE)

                       AND:

                       THE STATE OF KARNATAKA
                       THROUGH P.I. C.B.I., S.P.E. BANGALORE,
                       REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR
                       FOR C.B.I. DHARWAD.

ANNAPURNA                                                         ...RESPONDENT
CHINNAPPA              (BY SRI NEELENDRA D. GUNDE, ADVOCATE)
DANDAGAL
 Digitally signed by         THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF
 ANNAPURNA
 CHINNAPPA             CR.P.C. IS SEEKING TO CALL FOR ENTIRE RECORDS IN
 DANDAGAL
 Date: 2024.02.21      SPL.(CBI) CC.NO.02/1993 PASSED BY THE IV ADDITIONAL
 14:47:16 +0530
                       DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE-CBI,
                       DHARWAD AND TO EXAMINE THE LEGALITY OF THE SAME AND
                       TO SET ASIDE THE ORDER OF CONVICTING THE APPELLANT
                       FOR THE OFFENCES P/U/SEC.420 OF IPC IS SENTENCED TO
                       UNDERGO S.I. FOR 3 MONTHS AND ALSO TO PAY FINE OF
                       RS.5,000/- AND IN DEFAULT OF PAYMENT OF FINE HE SHALL
                       FURTHER SERVE SENTENCE OF S.I, FOR 1 MONTH, FOR THE
                       OFFENCE P/U/SEC.471 OF IPC IS SENTENCED TO UNDERGO
                       S.I. FOR 3 MONTHS AND ALSO TO PAY FINE OF RS. 5,000/-
                       AND IN DEFAULT OF PAYMENT OF FINE HE SHALL FURTHER
                       SERVE S.I. FOR 1 MONTH AND FOR THE OFFENCE P/U/SEC
                               -2-
                                      NC: 2024:KHC-D:2314
                                           CRL.A No. 2633 of 2012




5(2) OF THE PREVENTION OF CORRUPTION ACT, 1947 IS
SENTENCED TO UNDERGO IMPRISONMENT FOR 3 MONTHS
AND ALSO TO PAY FINE OF RS.3,000/- AND IN DEFAULT OF
PAYMENT OF FINE HE SHALL FURTHER SERVE SENTENCE OF
S.I. FOR 1 MONTH AND THE ORDER OF SENTENCE OF
IMPRISONMENT SHALL RUN CONCURRENTLY.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

1. This Criminal Appeal under Section 374(2) of

Cr.P.C. is filed by accused No.1 challenging the judgment

and order of conviction and sentence passed by the Court

of the IV Addl. District and Sessions and Spl. Judge-CBI,

Dharwad in Spl. (CBI) C.C.No.2/1993 dated 10.02.2012.

2. Heard the learned counsel for the parties.

3. Appellant/accused No.1 was working as a

Divisional Officer in New India Assurance Company,

Karwar during the year 1987-88. Accused No.2 was

working as a Senior Manager in Canara Bank, Halaga

Branch, Karwar district and accused No.3 was an

Insurance Agent of New India Assurance Company, Karwar

during the relevant period. Accused Nos.1 to 3 had

allegedly entered into a conspiracy to cheat the New India

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Assurance Company Ltd., and in pursuance of the said

conspiracy, accused Nos.1 and 3 took cattle insurance

policy through New India Assurance Company covering

non-existing animals in the name of different persons by

forging veterinary certificates of non-existing animals.

4. The allegation against the appellant/accused

No.1 is that he had cheated New India Assurance

Company by making a cattle insurance claim of Rs.4,000/-

which was credited by Ex.P10-cheque to the account of

PW2, on the policy of non-existing animal obtained

fraudulently in the name of PW2 and withdrawn by

accused no.1 under withdrawal slip-Ex.P2. It is also further

alleged that accused No.1 cheated New India Assurance

Company by receiving an amount of Rs.230/-, Rs.1,470/-,

Rs.470/- respectively under three cheques produced as

Exs.P15, P16 and P19, which were drawn in the name of

Dr.Shivaram Bhat (PW10) towards his professional fees for

the purpose of issuance of veterinary certificates. The

allegation against accused No.2 and 3 was that they had

conspired with accused No.1 to cheat New India Assurance

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Company. After completing the investigation, the

Inspector of Police, CBI (Spl.), Bengaluru had submitted

charge sheet against accused Nos. 1 to 3 for the offences

punishable under Sections 120B, 420, 468 and 471 of IPC

and Section 5(2) of the Prevention of Corruption Act,

1947. Accused No.2 was discharged in the present case by

the Coordinate Bench of this Court in Crl.R.P.No.306/2002

disposed of on 12.11.2008. Accused Nos.1 and 3 had

pleaded not guilty before the trial Court and therefore they

were tried for the charge sheeted offences.

5. The prosecution in support of its case had

examined totally 21 witnesses as PW1 to PW21 and had

got marked 87 documents as Exs.P1 to P87. On behalf of

accused, no defence evidence was led. The trial Court after

hearing the arguments addressed by both sides vide the

impugned judgment and order, had convicted accused

No.1 for the offences punishable under Sections 420, 468,

471 of IPC and Section 5(2) of the Prevention of

Corruption Act and had acquitted him for the offence

punishable under Section 120B of IPC. Accused No.3 was

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acquitted for the offence punishable under Section 120B of

IPC read with Sections 420, 468 and 471 of IPC.

6. Accused No.1 was sentenced to undergo simple

imprisonment for a period of 3 months and pay fine of

Rs.5000/- for the offence punishable under Section 420 of

IPC and in default to undergo simple imprisonment for a

period of 1 month. For the offence punishable under

Section 471 of IPC, accused No.1 was sentenced to

undergo simple imprisonment for a period of 3 months and

pay fine of Rs.5,000/- and in default to undergo simple

imprisonment for a period of 1 month. For the offence

punishable under Section 5(2) of the Prevention of

Corruption Act, accused No.1 was sentenced to undergo

simple imprisonment for a period of 3 months and pay fine

of Rs.3000/- and in default to undergo simple

imprisonment for a period of 1 month. Being aggrieved by

the said judgment and order of conviction and sentence

passed by the trial Court, appellant/accused No.1 is before

this Court.

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7. Learned counsel for the appellant submits that

the oral and documentary evidence available on record do

not prove the case of the prosecution against the appellant

beyond reasonable doubt. The material on record would go

to show that the cheques in question bear the name of

accused No.2 on its backside. The withdrawal slip-Ex.P2

bears the signature of PW2 and there is also an entry in

his passbook with regard to the credit of amount of

Rs.4,000/- covered under the cheque-Ex.P10 drawn in his

favour. He submits that the signature which was found in

the backside of the cheques in question namely Ex.P15,

P16 and P19 have been scored off, but the name of

accused No.2 was found in these instruments and

therefore serious doubt arises with regard to the

allegations made against the appellant. He submits that

when the documentary evidences do not support the case

of the prosecution, merely on the basis of oral evidence,

the trial Court was not justified in convicting the appellant.

He submits that accused No.2 has been discharged in the

case and accused No.3 was acquitted and therefore there

NC: 2024:KHC-D:2314

is no justification in convicting the appellant/accused No.1

for the charge sheeted offences and accordingly prays to

allow the appeal.

8. Per contra, the learned counsel appearing for

the respondent has argued in support of the impugned

judgment and order of conviction. He submits that the

Bank Officials have stated before the Court about the

presence of the appellant in the Bank on the date, the

amount covered under withdrawal slip-Ex.P2 and the

cheques in question Ex.P15, P16 and P19 were en-cashed.

There is an expert opinion that these instruments bear the

handwriting of the appellant. Appellant has not disputed

his presence in the Bank, when the amounts covered

under the aforesaid instruments were en-cashed. There is

not even a suggestion to any of the witnesses denying his

presence in the Bank on that day. Accordingly, he prays to

dismiss the appeal.

9. In order to prove the allegation against accused

No.1, the prosecution has mainly relied on the oral

evidence of P.W.-2, 3, 12 and 17. P.W.-2 Uttam Raghoba

NC: 2024:KHC-D:2314

Naik is the person in whose name Ex.P.10-cheque was

drawn. During the course of deposition, this witness has

stated that he had gone to the Corporation Bank, Karwar

Branch on 14.07.1988 along with accused No.1 and had

signed the withdrawal slip Ex.P.2. His signature on the

instrument at Ex.P.2 is marked as Ex.P.2a and Ex.P.2b.

According to him, after signing Ex.P.2, he had left the

Bank and he had not withdrawn the amount under Ex.P.2.

10. P.W.3 is the Clerk at Corporation Bank, Karwar

Branch during the relevant period i.e., from 1983 to 1988.

He has stated before the Court that P.W.2 had come to the

Bank and had presented Ex.P.2-withdrawal slip for

payment and he had issued token to him. He has also

deposed that P.W.2 had come with his passbook and he

had made entry in the same and had given it to the Officer

who had initialed the passbook. According to P.W.2, he

had signed withdrawal slip and had left Bank, but

according to P.W.3, it was P.W.2 who had presented

Ex.P.2 for realization and a token was also issued to him.

Therefore, there is inconsistency in the statement of P.W.2

NC: 2024:KHC-D:2314

and P.W.3 with regard to withdrawal of the amount under

withdrawal slip at Ex.P.2. It is not in dispute that the

passbook of P.W.2 shows an entry with regard to deposit

of Rs.4,000/- under the cheque Ex.P.10 and also

withdrawal of amount of Rs.3,983/- under withdrawal slip

Ex.P.2. P.W.3 has stated that at the time of withdrawal of

amount under Ex.P.2, appellant was present along with

P.W.2. Therefore, a serious doubt arise with regard to the

statement made by P.W.2 that the amount covered under

Ex.P.2 was not withdrawn by him.

11. P.W.4 has stated about issuing Ex.P.10 in the

name of P.W.2 and he has also stated that the amount

under Ex.P.10 was credited to the account of P.W.2.

During the course of cross-examination, he has admitted

that Bank withdrawal slips cannot be given to any one

except the accountholder. He does not remember that

accused No.1 had any account in the Bank or not.

Therefore, the evidence of P.W.2 that it was accused No.1

who had got the withdrawal slip as per Ex.P.2 and had

obtained the signature on the same is not corroborated by

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NC: 2024:KHC-D:2314

the evidence of P.W.4. Under the circumstances, I am of

the opinion that the prosecution had failed to prove

beyond reasonable doubt that it was accused No.1 who

had received the insurance claim of Rs.4,000/- under

Ex.P.2-withdrawal slip after depositing Ex.P.10 to the

account of P.W.2. From the evidence placed on record at

best, the prosecution has only proved accused No.1 was

present along with P.W.2 in the Bank on the date the

cheque Ex.P.10 was presented for realization and amount

covered under Ex.P.2 withdrawal slip was withdrawn by

P.W.2.

12. The second allegation against accused No.1 is that

he had dishonestly received money in the name of P.W.10

Dr.T.Shivaram Bhat towards his professions fees in the

matter of issuing veterinary certificate/s for non-existing

animals. To prove this allegation against accused No.1, the

prosecution has mainly relied upon evidence of P.W.6, 8,

9, 10 and 15 and also on Ex.P.15, 16 and 19, which were

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NC: 2024:KHC-D:2314

the cheques issued in the name of P.W.10-Dr.T.Shivaram

Bhat.

13. P.W.6 is the Clerk who was working in Indian

Bank, Karwar Branch for the period from 1986 to 1992.

She has stated that there was no account in their Bank in

Karwar Branch in the name of P.W.10. She has also stated

that Ex.P.15 and Ex.P.16 are the bearer cheques that were

presented for realization. She has further stated that the

bank takes signature of the person presenting the cheque,

on the backside of the cheque. At the time of presenting

Ex.P.15 and Ex.P.16, she had obtained signature on the

backside of the cheque. However, she has admitted that in

the back of Ex.P.15 and Ex.P.16, signature of accused

No.1 was not found. She has stated that the said

signatures were now found scratched. She has also

admitted during the course of cross-examination that

below the scratched signatures which were made in

Ex.P.15 and Ex.P.16, the name written is of accused No.2

M.H. Ron.

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14. P.W.8, was working as Officer of Indian Bank,

Karwar Branch for the period from 1986 to 1988. He has

also admitted that P.W.10 Dr.Shivaram Bhat had no

account in the Indian Bank, Karwar Branch. He has stated

during the course of his examination-in-chief that when

Ex.P.15 and Ex.P.16 were passed by him, the name of

M.H.Ron was not found in backside of the cheque and

signature of accused No.1 was not scored off. He has

admitted during the course of his cross-examination that

Ex.P.16 was an account payee cheque, but the Assistant

Manager, had cancelled the "account payee" endorsement.

In normal circumstances, an account payee cheque cannot

be presented for realization across the counter and

amount covered under the account payee cheque is

required to be deposited to the account of the person in

whose name the cheque is drawn. However, in the present

case, even though the cheque-Ex.P.16 is an account payee

cheque, the same was encashed as a bearer's cheque,

without even a counter cheque with regard to the

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cancellation of the endorsement made in the cheque as

account payee.

15. P.W.17 is the person who had cancelled the

endorsement in Ex.P.16. During the course of his cross-

examination, he has stated that Ex.P.15, 16 and 19 were

issued by him and account payee cross made in Ex.P.16

was cancelled by him at the request of accused No.1. He

has also stated that as per the procedure it was not

required to oblige the Development Officers like accused

No.1, in the matter of issuing cheques, by deviation from

the rules. He has further admitted during the course of his

cross-examination that for the mistake committed by him,

there was a departmental enquiry against him and he was

found guilty in the said enquiry and was punished.

16. P.W.15 was working as a Clerk-cashier-Typist in

the Indian Bank, Karwar Branch for the period from 1985

to 1993. He is the person who had paid the amount

covered under the cheques Ex.P.15, Ex.P.16 and Ex.P.19.

He has stated that at the time of making payment under

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the said cheques, the signature of person who had

presented will be taken. He has admitted that signature of

accused No.1 was not found in Ex.P.15, Ex.P.16 and

Ex.P.19. He has stated that the signatures found in these

cheques appear to have been scratched by somebody. He

has also admitted during the course of cross-examination

that as of now the name of M.H.Ron accused No.2 is

mentioned on the backside of Ex.P.15, Ex.P.16 and

Ex.P.19.

17. P.W.13 was working as Senior Manager in

Canara Bank and during the course of examination, he has

stated that when he had gone for inspecting the Branch

office at Halaga, the accused No.2-M.H.Ron was the

Manager and during inspection he had found that the

insurance policies relating to the IRDP loan were not

renewed and when he had brought the same to the notice

of M.H.Ron, he got them renewed without verifying as to

whether the animals were dead or alive. He also stated

that though the borrowers' desired to tell him something,

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but M.H.Ron did not permit them to speak. He has further

stated when he questioned all the borrowers, they had

complained against accused No.2 M.H.Ron that he had

demanded bribe from them.

18. P.W.14 who was one of the beneficiary under

IRDP scheme has deposed that he had availed loan of

Rs.3,500/- under IRDP scheme and out of the said

amount, he had paid Rs.300/- to accused No.2-M.H.Ron.

He has further stated that after a pair of bullocks

purchased by him had died, he had met accused No.2-

M.H.Ron who had advised him to obtain a certificate from

the Veterinary Doctor. During the course of his cross-

examination, he has stated that Health Certificate was

managed by Mr.Ron for insurance purpose and Dr. Pillai

sent the postmortem report directly to the Bank without

inspecting the dead animals.

19. From a scrutiny of the oral evidence as well as

the documentary evidence, which are discussed

hereinabove, it appears that signature of PW-2 was found

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in the back of Ex.P.2 withdrawal slip and name of accused

No.2-M.H.Ron was found in the back of Ex.P.15, Ex.P.16

and Ex.P.19-cheques, which were allegedly drawn in the

name of P.W.10-Dr.Shivaram Bhat. Accused No.2-M.H.Ron

was discharged in the present case by the co-ordinate

bench of this Court in Criminal Revision Petition

No.306/2002 vide order dated 12.11.2008. Undisputedly,

the said order has attained finality. Accused No.3 as

against whom there was a charge of criminal conspiracy

has been acquitted by the Trial Court for the offence

punishable under Section 120B of the IPC. When there is

evidence available on record that accused No.2 had

demanded bribe from the customers of the Bank, who

were beneficiaries under the IRDP scheme and when the

documentary evidence, more so Ex.P.15, Ex.P.16 and

Ex.P.19 would reflect that the name of M.H.Ron is found

on the backside of the said instruments, it would be highly

difficult to arrive at a conclusion that it was accused No.1

who had presented the said instruments for realization and

had withdrawn the amount covered under the said

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instruments and had misappropriated the same. The

prosecution in order to establish the guilt of the accused is

required to prove the charges against accused beyond

reasonable doubt. However, in the case on hand, a serious

doubt arises with regard to correctness of

allegations/charges leveled against accused No.1 that he

was the person who had withdrawn the amount covered

under instruments Ex.P.15, Ex.P.16 and Ex.P.19. Under

the circumstances, I am of the view that the trial Court

was not justified in convicting the petitioner/accused No.1

for the alleged offences.

20. In addition to the aforesaid aspects of the

matter, the Trial Court records would reveal that the

charges which were framed against the accused by the

Trial Court in the present case on 06.08.2012 were full of

ambiguity. The Hon'ble Supreme Court as well as this

Court has time and again held that the charges framed

against the accused should be simple and the accused

should be in a position to understand the same when it

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read over to him. In the present case, five charges were

framed against the accused which runs into more than 10

pages. The charges framed by the Trial Court are not only

complex, but the same are also full of ambiguity and it

would be difficult in normal circumstances for an accused

to understand the same and give his answers. The Trial

Courts are required to frame charges which are simple

without any ambiguity and can be understood by the

accused in the normal circumstances so that he would be

in a position to answer the same. Conviction of an accused

in a case where charges are not only complex and are also

ambigue would amount to miscarriage of justice.

21. Under the circumstances, I am of the considered

opinion that the Judgment and order of conviction and

sentence passed by the Trial Court convicting the

appellant/accused No.1 for the offences punishable under

Sections 420, 468 and 471 of IPC and for the offence

punishable under Section 5(2) of the Prevention of

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Corruption Act, 1947 cannot be sustained. Accordingly, the

following :

ORDER

(i) Criminal Appeal is allowed.

(ii) The Judgment and order of conviction

dated 10.02.2012 and order of sentence

dated 02.03.2012 passed in Special (CBI)

CC.No.2/1993 by the IV Additional District

and Sessions and Special Judge-CBI,

Dharwad is set aside.