"On being required to submit their say on the question of
sentence, accused Nos.1 to 3 submits as under:
3. Brief facts of the case which are utmost
3.5. All these factors were brought to the light and
complaint came to be lodged and after detailed
investigation, the investigation officer filed charge sheet
for the aforesaid offences. Charge sheet materials would
include issued and cancelled insurance policies and
relevant documents in that regard apart from oral
statement of persons who are lending support to the
issuance and cancellation of the polices.
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4. On receipt of the charge sheet, learned Trial
Judge secured the presence of the appellants herein and
after compliance of necessary formalities, framed the
charges for the aforesaid offences. Accused persons
pleaded not guilty and therefore, trial was held.
5. In order to prove the case of the prosecution,
as many as 44 witnesses were examined on behalf of
prosecution as P.W.1 to 44 and voluminous documentary
evidence were placed on record which were exhibited and
marked as Exs.P.1 to P.225 comprising of issued and
cancelled polices, respective documents in that regard,
necessary login id and documents in that regard,
necessary entries that have been passed by the accused
persons for issuance of the policy as well as cancellation of
the policies.
6. Specimen handwriting of the accused were
obtained during the course of investigation which was sent
to the handwriting expert to compare the same with the
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disputed signatures and report obtained by the
handwriting expert was also placed on record as exhibit.
7. On conclusion of recording of evidence, learned
Trial Judge recorded the accused statement as is
contemplated under Section 313 of Cr.P.C. wherein
accused has denied the incriminatory amterials and did not
chose to place any defence evidence on record. However,
during the course of evidence, two documents were placed
on record which is a letter marked at Ex.D.1 and another
copy of the letter as Ex.D.2.
8. Thereafter, learned Trial Judge heard the
arguments of the parties in detail and by impugned
judgment, has convicted the appellants as referred to
supra.
9. Being aggrieved by the same, appellants are
before this Court, in these appeals.
10. Sri.M.B.Ravikumar, learned counsel for accused
No.3 - Lokesha C., Sri.Lokesha D.K., learned counsel for
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accused No.2 - N.H.Rangaswamy and Sri.G.Jayaraj,
learned counsel for accused No.1 - A.Sheeja, assailed the
impugned judgment by pointing out the discrepancies in
the prosecution evidence.
11. Sri.G.Jayaraj in addition contended that as on
the date of issuance of the policies said to have been
issued and cancelled by accused No.1, she was absent to
the duty on that day, which has been established by
placing necessary documentary evidence on record and
somebody else has logged into her computer system by
using the login-id 'SHE' and then issued policies for which
accused No.1 cannot be held responsible at all and sought
for clear acquittal.
12. Sri.M.B.Ravikumar and Sri.Lokesha D.K.,
learned counsel would contend that material evidence on
record would only go to show that cancellation of the
policies that have been issued at most can be treated as
irregularity and no financial loss has been caused to NIAC
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Limited and as such, conviction of the appellants for the
aforesaid offences is to be set aside.
13. Learned counsels for all the appellants would
also in chorus contended that assuming that the
irregularities that has crept in issuing the policies and
cancelling the same and non crediting the premium
account to the account of NIAC, Limited, no ingredients
whatsoever is made available on record to attract the
offence under Section 13(1)(c) read with Section 13(2) of
the Prevention of Corruption Act, 1988 and thus, sought
for setting aside the conviction of the appellants for the
aforesaid offences.
14. Further, learned counsel for accused Nos.2 and
3 have filed separate affidavits that in the event, this
Court acquits appellants for the offence under Section
13(1)(c) read with Section 13(2) of the Prevention of
Corruption Act, 1988. They would not lodge or lay any
claim insofar as retirement benefits and other benefits are
concerned.
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15. Contents of the affidavit are culled out
hereunder for ready reference:
Affidavit of accused No.2:
I, N.H Rangaswamy, aged about 55 years, S/o. Late Halgaiah.
Ex. Assistant, New India Assurance Company Ltd R/at No.301
Vivekanagar, New Ganapathi Temple, Hassan-573201. Today
came to Bengaluru, do hereby solemnly and sincerely affirm
and state on oath as follows:
1) I submit that, the Respondent Police of CBI, ACB, Bengaluru
had registered a Criminal case against me and two others
before the XXXII Additional City Civil and Sessions Judge and
Special Judge for CBI Cases, Bengaluru (CCH-34).
2) I submit that, I was convicted and sentence was awarded in
Special C.C No.231/2010 on the file of the Learned XXXII Addl.
City Civil and Sessions Judge for CBI Cases, Bengaluru (CCH-
34) on 11/06/2012 by invoking Section 409, 420,477(A) of IPC
and Section 13(1) (c) (d) r/w Sec. 13(2) of the Prevention of
Corruption Act. The Hon'ble Court was pleased to hold that, I
am guilty of the above offences and awarded punishment to
me. Being aggrieved by the conviction and sentence awarded I
preferred this Criminal Appeal before this Hon'ble court.
3) I submit that now I have decided to assure this Hon'ble
court that I will not claim anything from my employer under
any circumstances. I also humbly pray that I have no
objection if this Hon'ble court imposes a reasonable
fine/penalty amount to discharge me from above said offences.
Wherefore, humbly pray that this Hon'ble Court may be
pleased to accept my prayer and grant an order of discharge,
by accepting penalty amount imposed by this Hon'ble Court on
mercy grounds.
That, this is my name and signature and the above contents of
this Affidavit are true and correct to the best of my knowledge,
information and belief."
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Affidavit of accused No.3:
I, C. Lokesha, S/o Late Chikkarangaiah, Aged about 63
years, Residing at Jagadamba Street, Vidyanagar Post,
SHIMOGA-577 203, today at Bengaluru do hereby by
solemnly affirm and state on oath as follows:
1. I submit that I am the Appellant in the above case and
I am well conversant with the facts and circumstances of
the case. Hence, I am swearing to this affidavit.
2. I submit that the Respondent CBI/ACB, Bengaluru, had
registered a criminal case against me and two others
before the Hon'ble XXXII Addl City Civil & Sessions Judge
and Special Judge for CBI Cases, Bengaluru, (CCH-34).
3. I submit that I was convicted and sentenced to undergo
simple imprisonment in Spl. C.C.No.231/10, passed by
the Hon'ble 32nd Addl City Civil and Session Judge and
Spl. Judge for CBI Cases, Bengaluru, (CCH-34), on
11/06/2012 by invoking under section 409, 420, 477A, of
IPC and Section 13 (1) (c) (d) r/w Sec 13 (2) of
Prevention of Corruption Act. The Hon'ble Trial Court was
pleased to hold that I am guilty of the aforesaid offences
and awarded punishment to me.
4. Being aggrieved by the conviction and sentence I
preferred the aforesaid Appeal before this Hon'ble Court
on 27/06/12 against the judgment dated: 11/06/2012
passed by the Hon'ble 32nd Addi City Civil and Session
Judge and Spl. Judge for CBI Cases, Bengaluru, (CCH-34).
5. I submit that now I have decided to assure before this
Hon'ble Court that, I will not claim anything from my
employer under any circumstances. I also humbly pray
that I have no objection if this Hon'ble Court imposes a
reasonable penalty amount to discharge me from the
above owing to my advanced age.
WHEREFORE, I humbly pray that this Hon'ble Court may
be pleased to accept my prayer and grant an order of
discharge by accepting the penalty amount imposed by
this Hon'ble Court on mercy grounds in the interest of
justice.
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I do hereby solemnly affirm and state that this is my
name and signature and contents stated above are true
and correct to the best of my knowledge, information and
belief.
16. Learned counsel for accused Nos.2 and 3 would
also contend that in the event, this Court upholding the
conviction for the remaining offences under Indian Penal
Code, since, accused Nos.2 and 3 are the first time
offenders and there is no compulsory minimum
punishment of imprisonment prescribed under the statue
for the remaining offences under the Indian Penal Code,
the jail sentence may be set aside by enhancing the fine
amount reasonably.
17. Per contra, Sri.P.Prasanna Kumar, learned
counsel for the CBI supports the impugned judgment in
toto.
18. He would further contend that admittedly, the
policies are issued and cancelled by dubious method by
appellants. He would also contend that merely accused
No.1 being absent on the relevant day, would not ipso
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facto efface the criminal liability of accused No.1 inasmuch
as why did she allow her login-id and password to be
shared to other persons for misuse of the policies of NIAC
Limited, is a question that needs to be considered by this
Court and thus, sought for dismissal of appeals.
19. He also contended that material on record
would go to show that the money is collected from the
prospective policy holders but same was not accounted to
NIAC Limited and in their records, only policies were
cancelled which came into light subsequently and the
policy owner statement in this regard and original policies
that have been issued by accused Nos.2 and 3 are seized
and they are placed on record and exhibited before the
Court which would clearly establish that appellants have
fraudulently issued the policies and cancelled the same in
their records resulting in not only irregularity but illegality
at the inception and thus, sought for dismissal of appeals.
20. He would also contend that to attract the
offence under Section 13(1)(c) of Prevention of Corruption
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Act, 1988, the prosecution cannot place positive evidence
on record and conduct of the appellants must be inferred
from the attendant facts and circumstances of the case
which is punishable under Section 13(2) of the Prevention
of Corruption Act, 1988 and thus, sought for dismissal of
the appeals in toto.
21. Having heard the arguments of the parties in
detail, this Court perused the material on record
meticulously.
22. On such perusal of the material on record,
following points would arise for consideration:
1. Whether the material evidence placed on record by
the prosecution would be sufficient enough to
maintain the conviction of the appellants for the
offences under Section 409, 420, 477A of IPC and
13(1)(c) read with Section 13(2) of the Prevention of
Corruption Act, 1988?
2. Whether the appellants make out legal infirmity or
perversity in recording the finding of the guilt for the
aforesaid offences?
3. Whether the sentence needs modification?
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4. What order?
REG.POINT Nos.1 AND 2:
23. In the case on hand, issuance of the policies as
referred to supra in the form of tabular column is not in
dispute. So also, cancellation thereof is not in dispute.
Admittedly, the amount of premium collected from the
prospective policy holders is not credited to the account of
NIAC Limited.
24. These aspects of the matter would make it clear
that it is the appellants who are responsible for issuance
and cancellation of the policies. Cancellation of the policy
was not intimated to the policy holders but it was only in
the records of NIAC Limited. The same is established by
collection of necessary papers and examination of policy
holders.
25. But, admittedly, as on the date of issuance of
three policies that is said to have been issued by accused
No.1 on 17.08.2006, 08.11.2006, accused No.1 was
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absent for her duty. She used to operate the computer
system for generating the policy by using her login-id as
'SHE'.
26. However, when she was absent to the duty,
somebody else must have logged in to the computer
system and issued three policies as referred to supra and
collected the premium of Rs.11,573/- but not credited the
same to the account of NIAC Limited. Who else has
logged into the computer system, in the place of accused
No.1 for issuance of policies on 17.08.2006 and
08.11.2006 as referred to supra, is not properly
investigated by investigation agency and no further
material is collected and placed on record.
27. Sri.P.Prasanna Kumar, learned counsel would
however contend that it is for accused No.1 to explain that
who has misused the computer system. Admittedly, it is
asking for negative proof from the accused No.1 which is
impermissible More so in the criminal jurisprudence
inasmuch as it is the prosecution which is required to
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prove the charges leveled against the accused beyond all
reasonable doubt and only after prosecution placing
incriminatory materials, accused is bound to explain the
same.
28. In the case on hand, accused No.1 was on leave
and somebody else has used the computer system for
issuance of the aforesaid policies. It is for the prosecution
to establish the same and in the absence of cogent
evidence in that regard, asking accused No.1 to explain as
to how those three policies came to be issued by
prospective policy holders and not crediting the premium
amount cannot be countenanced in law. Therefore,
conviction of accused No.1 for the aforesaid offences
needs to be set aside.
29. But insofar as accused Nos.2 and 3 are
concerned, admittedly, they were also working as
Assistant in NIAC Limited and they also had the power to
issue the policies. Policies that have been issued by
accused Nos.2 and 3 referred to supra, were again
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cancelled and premium amount collected from the
prospective policy holders is not credited to the account of
NIAC Limited.
30. Under such circumstances, when it is in the
exclusive domain of accused Nos.2 and 3 for operating
their computer system to generate the policies as referred
to supra in the names of prospective policy holders which
is established by placing necessary oral and documentary
evidence on record, it is expected from accused Nos.2 and
3 to explain the incriminatory circumstances as to how
those policies came into existences and why they were
cancelled.
31. The signatures that have been compared by the
handwriting expert would go to show that there was no
cancellation request given by the policy holders and they
were all forged signatures. Therefore, it was the duty of
accused Nos.2 and 3 to find out as to whether the
cancellation request was duly requested by the policy
holders and failure to make necessary enquires in that
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regard and cancelling the policies only at the end of NIAC
Limited and not crediting the premium amount to the
account of NIAC Limited, would sufficiently establish
beyond reasonable doubt to attract the offences under
Section 409, 420, 477A of IPC.
32. But material on record would also indicate that
necessary ingredients to attract the offence under Section
13(1)(c) which is punishable under Section 13(2) of the
Prevention of Corruption Act, 1988 is not forthcoming in
the prosecution case.
33. In order to appreciate the said argument, it is
just and necessary for this Court to call out Section
13(1)(c) of Prevention of Corruption Act, 1988 which reads
as under:
"13. Criminal misconduct by a public servant - (1) A
public servant is said to commit the offence of criminal
misconduct-
(c) if he dishonestly or fraudulently misappropriates
or otherwise converts for his own use any property
entrusted to him or unless his control as a public servant
or allows any other person so to do."
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34. Material evidence on record especially, the oral
evidence of the prosecution witnesses including official
superiors of accused Nos.2 and 3, would not be sufficient
enough to record an order of conviction insofar as offence
under Section 13(1)(c) of the Prevention of Corruption Act,
1988.
35. What is the dishonest and fraudulent intention
whereby accused Nos.2 and 3 misappropriated or
otherwise converted the property entrusted to them for
their own use is to be established by the prosecution by
placing cogent and convincing evidence on record except
for the fact that accused Nos.2 and 3 are the public
servants, no other ingredients are forthcoming on record.
36. Therefore, conviction of accused Nos.2 and 3
for the offence punishable under Section 13(1)(c) read
with Section 13(2) of Prevention of Corruption Act, 1988
needs to be interfered by this Court by exercising the
appellate jurisdiction on reappreciation of the material
evidence on record both on law and facts.
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37. In view of the foregoing discussions, point
Nos.1 and 2 are answered partly in the affirmative.
REG.POINT No.3:
38. Insofar as accused No.1 is concerned, in view of
the foregoing discussion, since she is acquitted of all the
offences, the sentence ordered by the learned Trial Judge
insofar as accused No.1 is concerned, needs to be set
aside in toto.
are concerned, in view of the affidavit filed by them and
also taking note of age being now 65 and 63 years
respectively, this Court is of the considered opinion that if
the sentence of imprisonment ordered by the learned Trial
Judge for the offences under the provisions of Indian Penal
Code if set aside by enhancing the fine amount to
Rs.75,000/- for the aforesaid offences, ends of justice
would be met. Accordingly, point No.3 is answered partly
in the affirmative.
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REG.POINT No.4:
40. In view of the findings of this Court on point
Nos.1 to 3 as above, following:
ORDER
i. Appeal filed by accused No.1 in
Crl.A.No.640/2012 is hereby allowed.
ii. Appeals filed by accused Nos.2 and 3 in
Crl.A.Nos.692/2012 and 716/2012 respectively
are allowed in part.
iii. While maintaining the conviction of the appellants
for the offence punishable under Section 409,
420, 477A of IPC, appellants are acquitted for the
offence punishable under Section 13(1)(c) read
with Section 13(2) of the Prevention of Corruption
Act, 1988.
iv. Consequently, sentence of imprisonment ordered
by the learned Trial Judge is modified as under:
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a. Appellants shall undergo simple
imprisonment for the day till rising of this
Court for the aforesaid offences and to pay
enhanced fine amount of Rs.75,000/- in
respect of all the offences on or before
15.03.2025 failing which they shall undergo
simple imprisonment for a period of one
year.
v. Office is directed to return the Trial Court Records
with copy of this order forthwith for issuance of
modified conviction warrant.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT: BHK
