On hearing the accused, having regard to the nature
of the offence, the quantum of the amount in connection
with which the offences have committed, the period of trial
having regard to their age the following final sentence is
passed.
15. Being aggrieved by the same, appellants have
16. Sri Kiran S Jawali, learned Senior Counsel
598/2011 and 666/2011, Sri B.S. Prasad, learned counsel for
addressed their arguments.
17. They further contended that the learned Trial Judge
the offence punishable under section 420 IPC.
18. They further contended that material evidence on
19. Alternatively, Sri Kiran S. Jawali, learned Senior
Counsel representing the appellants in Crl.A.Nos. 653/2011 and
may be acquitted for those offences.
20. Sri R. Nagendra Naik, learned counsel representing
conjectures. He adopted arguments of Sri Kiran S. Jawali,
learned Senior Counsel, insofar as accused No.2 is concerned.
21. Sri B.S. Prasad, learned counsel for the appellant in
22. Sri B.S. Prasad, further contended that the role of
impugned judgment and thus, sought for allowing the appeal.
23. He has further contended that the
retaliation, he has been falsely implicated in the case.
24. He would also further contend that the
to lead banker namely, Vijaya Bank. As such, accused No.6
should be acquitted.
25. He invited the attention of this Court to Exs.D.1 and
formality. Therefore, at any stretch of imagination the accused
26. He further contended that the material on record
27. In order to have certainty with regard to the
respectively are placed on record. Contents of those affidavits
C.C.No.45 /2004 the present appeal has been filed.
6. I State that I attained superannuation during the
pendency of the criminal trial. I have never claimed or
been paid any of my retirement benefits. Thiş was
refused as these proceedings were pending after
conviction. I have not challenged the said order in
anticipation of the Judgment in this case. Due to my old
age and also suffering from old age aliments I have
decided to put an end to the litigation. I state that if the
order of sentence is set aside and only fine amount is
imposed, I undertake to refrain from claiming any
benefits arising due to my superannuation.
I submit that the averments made in paragraph 1
to 6 of this Affidavit are true to the best of my knowledge,
belief and information."
"I, Sri. N. Shantharaj, S/O.Late H. Narayanappa,
Aged about 72 years, Door No.2/484,
Chikkaharadanahalli, Behind Railway work Shop,
Jayanager, Mysore-570014, today at Bangalore, do
hereby solemnly affirm and state on oath as follows:
I submit that the averments made in Paragraph 1
to 6 of this Affidavit are true to the best of my knowledge,
belief and information."
"I, Sri. Krishnan Naik, S/O.Late Sevya Naik, Cashier
Cum Clerk, Sbm, Mandi Mohalla, Mysore-570 001, do hereby
solemnly affirm and state on oath as follows:
5. I submit that after the conclusion of the trial the
Hon'ble trial court has convicted me and other accused for the
offenses punishable u/s 120B, 420, 468, 471, 477-A, 420 IPC
and 13(1)(d) r/w 13(2) of PC Act. Being aggrieved by the
order of conviction dated 21st November 2012 passed by the
XXXII Additional City Civil & Sessions Judge and Special Judge
for C.B.I.Cases Bangalore in Special C.C.No.45 /2004 the
present appeal was filed.
6. I submit that after conviction I was terminated from
service and issued compulsory retirement. I have not
challenged the said order in anticipation of the Judgement in
this case. Due to my old age I have decided to put an end to
the litigation. If I am imposed with any punishment without
imprisonment I undertake not to claim any terminal benefit
from my employer.
I submit that the averments made in Paragraph 1 to 6 of
this Affidavit are true to the best of my knowledge, belief and
information."
28. Per contra, Sri P. Prasanna Kumar, learned counsel
for CBI., supports the impugned judgment. He would further
contend that the material evidence on record is sufficient
enough to infer the existence of criminal conspiracy and thus,
sought for dismissal of the appeals.
29. He would also contend that appellant Nos.1 to 4
and 6 being the public servants, admittedly were required to
exercise such diligence while lending the loans under IRDP
Scheme, but, they failed to do so in the case on hand.
30. The explanation offered on behalf of the public
servants that there was no wrongful loss of money to State
Bank of Mysore, Kyathanahalli Branch and there is no
corresponding wrongful gain to the appellants including the
beneficiaries cannot be countenanced in law, inasmuch as the
accounts opened by the public servants are in the fake names
and real beneficiaries have deposed before the Court that they
did not opt for any loan under IRDP scheme and the
signatures/thumb impressions found in the loan applications
are not that of their signatures/thumb impressions. They
deposed that only photographs found in the applications are
that of their photographs.
31. Sri Prasanna Kumar, would further contend that
photographs furnished by the so called beneficiaries, which are
found on their loan applications are actually affixed in account
opening forms of State Bank of India, Kyathanahalli Branch
which have been removed from their application forms and the
same photographs have been repasted/reaffixed on to the loan
applications under the IRDP scheme. Further, forging their
signatures/thumb impressions, loans have been obtained which
would be sufficient enough to attract the offences punishable
under the provisions of IPC and Prevention of Corruption Act
and thus, sought for dismissal of the appeal.
32. Sri Prasanna Kumar, would also contend that
accused Nos.1 to 4 and 6 being the public servants must have
done this for obtaining the pecuniary advantage. Expecting the
direct evidence to establish the offence under Section 13 (1)
(d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 is
thus impermissible.
33. Sri Prasanna Kumar, would also contend that in
respect of the accused No.6/appellant in Crl.A.No.611/2011 is
concerned, the arguments put forward on his behalf that he
was not part of the conspiracy cannot be countenanced in law.
34. He would further contend that the material
evidence on record would be sufficient enough to establish that
he did not merely furnish the opinion for the purpose of getting
insurance to the animal for which the loan came to be issued,
but his role is something more inasmuch as he did not verify as
to who has applied for the loan and for whom the certificate is
issued. Moreover, very applicants have deposed that they did
not purchase any animal. If it so, which are the animals for
which accused No.6 issued certificates that too after examining
them is a question that remains unanswered on behalf of
accused No.6.
35. Sri Prasanna Kumar would further contend that
appellant in Crl.A.No.611/2011, who was accused No.6 has
been falsely implicated in the case on hand on account of he
exposing illegal activities of Jayaram, Zilla Panchayath and
Manager of SBI., Kyathanahalli, is fallacious argument
inasmuch as but for his role in the conspiracy, loan would not
have been sanctioned and sought for dismissal of the appeal in
toto.
36. Having heard the parties in detail, this Court
perused the material on record meticulously.
37. On such perusal of the material on record, following
points would arise for consideration.
1) Whether the material evidence placed on record
would be sufficient enough to maintain the
conviction of the appellants for the aforesaid
offences?
2) Whether the appellants makes out a case that
the impugned judgment of conviction and order
of sentence is suffering from legal infirmity and
perversity and thus calls for interference?
3) Whether the sentence needs modification?
4) What order?
Regarding point Nos.1 and 2:
38. In the case on hand accused No.1 N. Shantharaj
being the Manager, MMGS-II, State Bank of Mysore,
Ganganagar Branch, Bangalore, accused No.2 Krishan Naik
being Cashier cum Clerk, State Bank of Mysore, Mandi Mohalla,
Mysore, accused No.3 H.S. Umesh being Cashier-cum-Godown
Keeper, State Bank of Mysore, Haveri Branch, accused No.4 M.
Shivalinge Gowda, being the Executive Officer and accused
No.6 - A.N. Keshava Murthy, being the Assistant Director,
department of Animal Husbandry, Veterinary Services, are not
in dispute.
Name of the Date of Deposition Exhibit Purpose Loan Name of the
Loanee certificate reference for loan Amount signatory/Veteri
nary Surgeon
Thimmappa 13.06.1994 P.W.6 Ex.P.19 Bullock 10,000 Dr. A.N.
Shivaramu and Keshavamurthy
bullock
tyre-cart
Lakshmanaiah 20.05.1994 P.W.7 Ex.P.33 CB Cow 6,500 Dr. A.N.
Lakshmanaiah Keshavamurthy
Nanjunda Naik 13.06.1994 P.W.8 Ex.P.48 Bullock 10,000 Dr. A.N.
Nanjunda and Keshavamurthy
Naik bullock
tyre-cart
Honnaiah 26.10.1994 P.W.9 Ex.P.60 Sheeps 5,400 Dr. A.N.
Swamy . 10+1 Keshavamurthy
Mariyamma 05.10.1994 P.W.10 Ex.P.67 CB Cow 6,500 Dr. A.N.
Ammasamma Keshavamurthy
Shanthamma 05.10.1994 P.W.11 Ex.P.69 Bullock 5,000 Dr. A.N.
Kamalamma Keshavamurthy
Rangayya 05.10.1994 P.W.15 Ex.P.80 CB Cow 6,500 Dr. A.N.
Rangayya Keshavamurthy
Saraswathi 05.10.1994 P.W.16 Ex.P.82 CB Cow 6,500 Dr. A.N.
Kamalamma Keshavamurthy
Narasimhegowda 20.05.1994 P.W.23 Ex.P.90 Bullock 12,000 Dr. A.N.
Nagarachari and Keshavamurthy
bullock
tyre-cart
Karapaiah 24.11.1994 P.W.34 Ex.P.93 CB cow 6,500 Dr. A.N.
Karapaiah Keshavamurthy
Venkataiah 05.10.1994 P.W.24 Ex.P.94 Sheeps 5,300 Dr. A.N.
H.R. Krishnaiah 10+1 Keshavamurthy
Gowda
Nagu 26.05.1994 P.W.26 Ex.P.98 CB cow 6,500 Dr. A.N.
M.C.Patil Keshavamurthy
39. Admittedly there was a scheme called IRDP scheme
where under banks were required to extend the loan facility for
the small farmers for purchase of cattle. Seventeen such loan
applications were processed in State Bank of India,
Kyathanahalli Branch.
40. Admittedly, material documents placed on record
would show that none of the applicants are the beneficiaries of
the said loans under IRDP Scheme. The documents placed on
record by prosecuting agency would establish that the
photographs found on the loan applications are no doubt that of
the loanees, but proceeds have not reached the hands of the
loanees.
41. Admittedly, no cattle was purchased by the loanees
to avail the benefit of IRDP scheme. Statements recorded by
the Investigating Officer of the loanees would sufficiently
establish the same.
42. In fact the loanees are examined as P.Ws.6 to 11,
15 to 18. They have deposed in their examination-in-chief that
they have not availed for the purpose of purchase of cattle or
bullocks. When these persons have not at all purchased the
cattle, accused No.6 being the Assistant Director, department
of Animal Husbandry and Veterinary Services, certifying the
health condition of the cattle would not arise at all.
43. Further, the signatures and the thumb impressions
of the original loanees having been disputed by them, are sent
to the handwriting expert who is examined as P.W.36 - Sushil
Kumar Chadha. The report given by the handwriting expert -
P.W.36 is marked at Ex.P.136, which would reveal that the
admitted signatures/thumb impression of the loanees did not
tally with the signatures, thumb impressions in the loan
applications.
44. Therefore, it is the public servants who are accused
Nos.1 to 4 and 6, being the manager, cashier cum clerk,
cashier cum Godown Keeper of State Bank of Mysore, and
Executive Officer, Taluk Panchayath, and Assistant Director (AH
& AV) have to explain to the Court when the incriminatory
circumstances are put to them, as to who has signed and in
whose presence. No such explanation is forthcoming on record.
45. It is pertinent to note that accused No.6 being the
Assistant Director, department of Animal Husbandry, Veterinary
Services, was required to certify the health condition of the
animal for which the loan is to be granted. His signature is
found in each and every file marked at Exs.P.19, 27, P.42,
P.49, P.60, P.67, P.69, P.80, P.82, P.90, P.94 and P.98.
46. However, explanation offered by accused No.6 is
that he examined the cattle only for the purpose of taking
insurance policy and not for the purpose of granting loan and
therefore, he is not part of the conspiracy. Such an explanation
on behalf of accused No.6 is nothing but a self serving
testimony. More so, when contra materials are placed on
record by prosecution as referred to supra.
47. Defence of accused No.6 is that he exposed the mis
deeds of SBI, Kyathanahalli Branch and also the misdeeds of
his counterpart namely, Jayaram, in Zilla Panchayath meeting,
as well as to the officials of the lead banker i.e., Vijaya Bank.
As a retaliation attitude, he has been falsely implicated in the
case.
48. In this regard Sri B.S. Prasad also contended that
no sanction was granted to prosecute said erring officials and
instead accused No.6, who is the appellant in
Crl.A.No.611/2011 has been made as scapegoat in the incident.
49. Said argument of Sri B.S. Prasad is also suffering
from several inconsistencies and therefore to be treated as
fallacy.
50. In the first place, accused No.6 should have made
an endorsement that he is certifying the application only for the
purpose of taking insurance before subscribing the signature.
No such endorsement is found in the respective files.
51. Thus, argument of Sri B.S. Prasad, cannot be
countenanced in law inasmuch as accused No.6 did not merely
sign the form but he also filled up necessary details as to the
description of cattle. When the loanees themselves have not
purchased the cattle which of the animal, was actually
examined by accused No.6 before issuing the certificates as is
found in Exs.P.19, 27, P.42, P.49, P.60, P.67, P.69, P.80, P.82,
P.90, P.94 and P.98 is a question that remains unanswered.
52. Secondly, accused No.6 should have refused to
issue certificate or made it clear on the certificate itself that
said certificate is issued only for the purpose of taking
insurance policy and not for any other purpose. On perusal of
material evidence on record, no such endorsement is
forthcoming on the certificates signed by accused No.6 in
Exs.P.19, 27, P.42, P.49, P.60, P.67, P.69, P.80, P.82, P.90,
P.94 and P.98.
53. Why accused No.6 would sign the document, if he is
not part of the conspiracy is a question that is to be answered
by him. But no explanation is forthcoming on record in this
regard.
54. In a given case, existence of criminal conspiracy in
a given case cannot be expected to be proved by the
prosecution by always placing positive evidence on record.
Court is not precluded from inferring from the attendant facts
and circumstances of the case about the existence of criminal
conspiracy. Expecting positive evidence to be placed by
prosecution is impermissible in each and every case as direct
evidence for proving the criminal conspiracy is seldom
available. It is settled principles of law that conspiracy would
be hatched in secrecy.
55. View of this court in this regard is fortified by the
judgment of Apex Court Mohd. Khalid vs. State of West
Bengal reported in (2002)7 SCC 334, wherein Hon'ble Apex
court has accepted the principles of law enunciated by the
constitution bench of the Hon'ble Apex Court in the case of
Kehar Singh vs. State (Delhi Administration) reported in
(1988)3 SCC 609.
56. Keeping in the background the principles stated in
the aforesaid decision, when the material evidence on record in
the case on hand is analyzed but for the issuance of certificate
by accused No.6 (A.N. Keshava Murthy), loan application could
not have been processed.
57. It is equally settled principles of law that each and
every conspirator need not know the entire sketch or the
scheme where the fraud has taken place. But for the role
played by a particular accused in the scheme or the sketch is
not accomplished, then each of such person is liable for the
entire scheme or the sketch where illegal activity has taken
place. Therefore, argument put forth on behalf of accused No.6
that he is no way responsible for the alleged fraud cannot be
countenanced in law.
58. Thus, on cumulative consideration of materials on
record, it is found that role of accused No.1 to 4 and 6 being
public servants is substantially established by placing
overwhelming evidence on record.
59. However, a feeble attempt is made by Sri Kiran S.
Jawali and Sri Nagendra Naik, representing the public servants
that actual money has not flown out of bank but the proceeds
in the loan application is appropriated towards the loan
accounts of the individual applicants. Therefore, there is no
wrongful loss caused to the bank and corresponding wrongful
gain either to the accused or beneficiary. As such, offence
under Section 420 IPC is per se not attracted in the facts and
circumstances of the case. Such an argument cannot also be
countenanced in law inasmuch as a public servant, his loyalty
should be towards the bank and not towards erring/defaulting
customers.
60. It is pertinent to note that IRDP scheme was meant
to help the farmers in obtaining the loan and subsidy from the
bank for purchasing the cattle required for agricultural
operations to augment their income. Such a scheme should not
be mis-utilized so as to regularize the defaulted accounts even
assuming the defence of the public servants is to be accepted
for the sake of arguments alone.
61. Under such circumstances, the argument put
forward on behalf of appellants that appellants are to be
acquitted for all the offences by setting aside impugned
judgment cannot be countenanced in law.
62. However, when it comes to the question of
convicting accused Nos.1, 2, 4 and 6 for the offence punishable
under Sections 13 (1) (d) r/w 13 (2) of the Prevention of
Corruption Act is concerned, material evidence are not
sufficient to maintain the conviction of the aforesaid accused
persons for the offence punishable under Sections 13 (1) (d)
r/w 13 (2) of the Prevention of Corruption Act aforesaid
offences.
63. Prosecution evidence does not conclusively
establish the ingredients to attract the offence punishable under
Sections 13(1) (d) r/w 13 (2) of the Prevention of Corruption
Act, inasmuch as what is the pecuniary advantage that the
public servants have derived in the transaction. Oral evidence
and documentary evidence in this regard fall short of required
ingredients to maintain the conviction of the appellants.
64. Therefore, while maintaining conviction of accused
No.1, 2, 4 and 6 for offences punishable under the Indian Penal
Code, the conviction of the accused No.1, 2, 4 and 6 for the
offence punishable under Sections 13(1)(d) r/w 13(2) of the
Prevention of Corruption Act, needs to be set-aside.
65. In view of foregoing discussion, point Nos.1 and 2
are answered partly in the affirmative.
REGARDING POINT No.3:
66. Accused Nos.1, 2 and 4 have filed the affidavits as
referred to supra.
67. This court having set-aside the conviction of
accused No.1, 2, 4 and 6 for the offence punishable under
Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption
Act, for the remaining Indian Penal Code offences, there is no
prescribed minimum punishment.
68. Admittedly the appellants are in advanced age in
their life. Incident has taken place in the year 1994, directing
the appellants to undergo imprisonment for the Indian Penal
Code offences at this distance of time would act harsh to the
appellants especially they being the first time offenders.
69. Therefore, if the sentence of imprisonment is set
aside by enhancing the fine amount in a Sum of Rs.50,000/-
each for the Indian Penal Code offences ends of justice would
be met. Accordingly, point No.3 is answered partly in the
affirmative.
Regarding Point No.4:
70. In view of finding of this Court on point Nos.1 to 3,
following order is passed:
ORDER
(i) Criminal Appeal Nos.653/2011, 587/2011,
596/2011, 598/2011, 611/2011 and 666/2011 are
allowed in part.
(ii) While maintaining the conviction of the accused
No.1, 2, 4 and 6 who are appellants in
Crl.A.Nos.587/2011, 596/2011, 653/2011 and
611/2011 respectively, for the offences punishable
under Sections 120B, 420, 468, 471, 477A of the
Indian Penal Code, accused Nos.1, 2, 4 and 6 are
acquitted for the offence punishable under Section
13(1)(d) r/w Section 13(2) of Prevention of
Corruption Act, 1988.
(iii) Consequently, sentence of the trial court is modified
as under:
(a) Sentence of imprisonment ordered by the
learned Trial Judge for the aforesaid offences is
hereby set-aside and appellants/accused No.1,
2, 4 and 6 to 8 in Crl.A.Nos.587/2011,
596/2011, 653/2011, 611/2011, 598/2011 and
666/2011 are directed to pay enhanced fine
amount in a sum of Rs.50,000/- each on or
before 30.03.2025, failing which they shall
undergo simple imprisonment for a period of one
year.
(b) Office is directed to return the Trial Court
Records with copy of this judgement for issue of
modified conviction warrant.
Sd/-
(V. SRISHANANDA)
JUDGE
MR
