Heard Sri B.B. Sagar, learned counsel for the
appellant and Sri P. Prasanna Kumar, learned counsel for
2. These two appeals are filed by accused No.2-
Rs.70,000/- in all each of the appellants.
3. Accused No.1 has also filed an appeal in
CRl.A.No.717/2011. Said appeal is disconnected from
4. Brief facts of the case which are utmost
For the offence under Sec.420 IPC, Accused No.1 is
convicted and sentenced to undergo Sl for two years
and is directed to pay a fine of Rs.20,000/-; and in
default of payment of fine, he shall undergo Sl for six
months.
NC: 2025:KHC:2585
For the offence under Sec.13(2) r/w 13(1)(d) of
Prevention of Corruption Act, 1988 Accused No.1 is
convicted and sentenced to undergo SI for two years
and shall also pay a fine of Rs.30,000/- in default of
payment of fine he shall undergo Sl for six months.
For the offence under Sec.120B IPC, Accused No.2 and
3 are convicted and sentenced to undergo Sl for three
years and shall also pay a fine of 35,000 /- each; and in
default of payment of fine, defaulting accused shall
undergo Sl for six months.
For the offence under Sec. 420 IPC, Accused No.2 and 3
are convicted and sentenced to undergo Sl for three
years and are directed to pay a fine of Rs.35,000/- each
and in default of payment of fine defaulting accused
shall undergo SI for six months,
The substantive sentence of imprisonment inflicted on
Accused Nos.1 to 3 shall run concurrently.
M.Os.1 and 15 are directed to be confiscated to State.
The Order regarding disposal of property shall take
effect after the appeal period is over.
Accused No.1 to 3 are entitled to benefit of set off
respecting the period of detention, if any, under Section
428 of Cr.P.C."
11. Being aggrieved by the same, all the accused
persons have preferred the appeals as referred to supra.
12. In these two appeals, the case of accused Nos.2
and 3 is taken into consideration as accused No.1 is no
more and consideration of the said appeal on merits, is
disjuncted from the present appeal as there is no
application yet filed on behalf of the appellant to pursue
the appeal further, insofar as accused No.1 is concerned.
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13. Sri.B.B.Sagar, learned counsel representing the
appellants (accused Nos.2 and 3) in these two appeals,
reiterating the grounds urged in the appeal memorandum
vehemently contended that the prosecution evidence is
hardly sufficient to convict the present appellants along
with accused No.1 for the offence punishable under
Section 120-B of Indian Penal Code (for short 'IPC') and
therefore conviction of the appellants for the said offence
is per se illegal and sought for allowing the appeal.
14. It is the further argument that in the event of
this Court accepting the contentions of the appellants that
there is no material on record to maintain the conviction
for the offence punishable under Section 120-B of IPC,
offence under Section 420 of IPC would not ipso facto get
attracted insofar as appellants are concerned, as they
were only beneficiary in the credit card account and if
there is mis-credit in their accounts, it would only result in
irregularity and not illegality and thus, sought for allowing
these appeals.
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15. Sri.B.B.Sagar further contended that in the
event this court not accepting the contentions urged on
behalf of the appellants, Court may consider the case of
appellants in a lenient manner and since the entire amount
is now repaid, and noting the fact that the appellants do
not claim the jewellery seized from their custody, may set
aside the sentence of imprisonment and by enhancing the
fine amount suitably.
16. In order to have certainty with regard to his
submissions at the instructions of appellants, a memo is
also filed without prejudice to the rights of the appellants
by counsel for the appellants which reads as under:
"The undersigned counsel for appellants in
Criminal Appeal No.725/2011 and Criminal Appeal
No.835/2011 on instructions of the appellants as an
alternate argument sought for modification of the
sentence by enhancing the fine amount, the same
may be kindly be considered in the interest of
justice."
17. Per Contra, Sri.P.Prasanna Kumar, learned
counsel for the respondent/CBI supports the impugned
judgment.
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18. He further contended that admittedly, accused
No.1 is a public servant being the Manager of Credit Card
Division in Andhra Bank, was the whole and sole person to
deal with the credit card accounts in Andhra Bank and was
the person who was required to handle the charge slips of
hotel Windson Manor and Le Meridien, Bangalore.
Admittedly, those two establishments were the Merchant
Establishments of Andhra Bank and as per the rules of the
bank and the agreement between the Merchant
Establishments and the bank, the charge slips were to be
processed by accused No.1 insofar as the credit card
payments are concerned and the money is to be recovered
from the concerned.
19. He pointed out that accused No.1 in active
conspiracy with appellants herein, diverted the charge
slips and credits were made to the accounts of accused
Nos.2 and 3 (appellants), which was withdrawn in cash by
the appellants in part and they made transactions in
several outlets by purchasing the gold ornaments like
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gold chain, gold bangles etc., which are marked as M.Os.1
to 15 and the recovery thereof has been properly
established by the prosecution by placing cogent and
convincing evidence on record. Thus, all ingredients
require to attract the offence punishable under Section
420 of IPC and 120-B of IPC has been established by the
prosecution by placing cogent evidence on record.
20. Sri.P.Prasanna Kumar also contended that non-
claiming of the M.Os.1 to 15 by the appellants exposes the
hollowness in the case of the appellants herein and
wrongful loss that has been caused to the bank is to the
tune of Rs.4.88 lakhs and 3.30 lakhs in respect of
Merchant Establishments of those hotels and thus, the
finding of conviction recorded by the learned Special Judge
is just and proper and needs no interference by this Court
even after re-appreciation of the material evidence on
record and thus sought for dismissal of the appeal.
21. Sri.P.Prasanna Kumar, further contended that
no doubt, it is the discretion of this court to pass
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appropriate sentence in a given case that too while
exercising the appellate jurisdiction. But in the case on
hand, no mitigating circumstances are forthcoming to
accept the alternate prayer made on behalf of the
appellants and in setting aside the sentence and
enhancing the fine amount and thus, sought for dismissal
of the appeal in toto.
22. Having heard the parties in detail, this Court
perused the material on record meticulously. On such
perusal of the material on record, following points would
arise for consideration:
1) Whether the prosecution has
successfully established all necessary
ingredients to attract the offence
punishable under Section 420 and 120-
B of IPC?
2) Whether the appellants make out a
case that the impugned judgment is
suffering from infirmity and perversity
and thus calls for interference?
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3) Whether the sentence needs
modification?
4) What order?
REG.POINT Nos. 1 AND 2:
23. In the case on hand, accused No.1 being the
Manager of Andhra Bank, Credit Card Division is not in
dispute. So also he discharge in the work as the public
servant in the capacity of Manager of Andhra Bank
between the period of August 1995 and October 1997 is
not in dispute. Admittedly in the bank, there were two
Merchant Establishments as referred to supra pertaining to
M/s. Hotel Windson Manor and M/s. Hotel Le Meridien.
24. Admittedly, the amounts of credit that had to
be made in favour of those Merchant Establishments as
per the agreement between the bank and the Merchant
establishments. Payments were being made from time to
time. When the matter stood thus, accused No.1
conspired with accused Nos.2 and 3 and diverted the
charge slips pertaining to aforesaid Merchant
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Establishments and credited the proceeds to the accounts
of accused Nos.2 and 3. These aspects of the matter are
established by the prosecution not only from the
examination of the prosecution witnesses but also from
the documentary evidence placed on record. Ex.P.3
recapitulation sheet, Ex.P.5 debit vouchers and Ex.P.2
demand draft amply establish the diversion of the amount.
So also cash advance vouchers marked at Exs.P.29 to P.35
of several dates recapitulation sheet did not tally each
other. From such transfer of proceeds, accused Nos.2 and
3 have swiped their credit cards in different Merchant
Establishments (outlets) and purchased gold ornaments
which were seized from the custody of accused Nos.2 and
3 and placed on record in the form of M.Os.1 to 15.
25. Material evidence also depicts that apart from
purchasing the costly ornaments, accused Nos.2 and 3
also withdraw cash from the Automated Teller machine
(for short 'ATM') which was shared by them with accused
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No.1. Panch witnesses to seizure mahazar have supported
the case of the prosecution.
26. Detailed cross-examination of prosecution
witnesses did not yield any positive material on record so
as to hold that prosecution has established its case against
accused Nos.1 to 3. Admittedly, there is no proper
explanation forthcoming from accused Nos.2 and 3 with
regard to the possession of gold ornaments. Further as
per memo supra they are not claiming for return of the
material objects.
27. However, with regard to the withdrawal of the
cash and sharing the same with accused No.1, it is only
the oral evidence that has been relied on by the learned
Trial Judge. As against the documents that have been
placed on record by the prosecution, five documents were
also placed on record by the defence which were marked
as Exs.D.1 to D.5 as referred to supra. One such
document which assumes the importance is Ex.D.1 which
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is the computerized print out pay order Register and
Ex.D.3 recapitulation sheet dated 07.07.1997.
28. It is to be borne in mind that from the
recapitulation sheet that has been placed on record by the
prosecution in comparison with Ex.D.3 it makes clear that
the prosecution case is established by placing reliance on
recapitulation sheet marked on behalf of the prosecution
as the entries found in Ex.D.3 is the similar entries that
has been found in the recapitulation sheets marked on
behalf of the prosecution at Exs.P.3, P.10 to P.24, P.36.
29. Admittedly, Merchant Establishments were
required to pay for the amount spent by accused Nos.2
and 3 and the discrepancy was noted. There was an
enquiry which ultimately brought into light about the fraud
committed by accused No.1 who was in active conspiracy
with accused Nos.2 and 3. It is only thereafter, the
detailed investigation has taken place wherein the
investigation agency has been able to recover M.Os.1 to
15 from the custody of the appellants herein. Since the
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case of the prosecution rest predominantly on the
documentary evidence rather than the oral testimony,
minor contradictions in the oral testimony of the
prosecution witnesses did not cause any serious dent in
the case of prosecution and they are to be termed as
natural in the attendant facts and circumstances of the
case.
30. Therefore, this court is of the considered
opinion that the material evidence placed on record
especially Exs.P.14, P.18, P.20, P.22 and P.24 and so also
Ex.P.10 to P.13, P.15 to P.17 and P.19, P.21 and P.23,
which are belonging to the Merchant Establishments of
hotel Windsor Manor and the other merchant
establishment, conclude the offence of Section 420 of IPC,
inasmuch as, the bank has been put to a loss to the extent
of 4.88 lakhs and 3.30 lakhs. Needless to emphasize that
those amounts have been misused by accused Nos.2 and
3 which has been credited to their credit cards accounts in
active collusion with accused No.1 who having fraudulently
diverted the charge slips. As such, the ingredients attract
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the offence under Section 420 of IPC namely wrongful loss
to the Andhra Bank and wrongful gain to the accused
Nos.2 and 3 which has been shared in part by them with
accused No.1 stands established by placing cogent
evidence on record.
31. Having said thus, to attract the offence under
Section 120-B of IPC, the prosecution has to place on
record such evidence which should be in a position to
inform that there was an illegal agreement to achieve an
illegal object.
32. In the case on hand, accused No.1 being the
Manager of the Andhra Bank in Credit Card Division was
the sole person to process the charge slips. Admittedly,
he diverted those charge slips into the account of accused
Nos.2 and 3. Accused Nos.2 and 3 knew very well that
they were not required to repay the amount that has been
spent by them inasmuch as the amounts that has been
transferred to their account were actually belonging to the
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Merchant Establishments of hotel Windson Manor and Le
Meridien as referred to supra.
33. For establishing the offence under section 120-
B of IPC, there need not be an agreement in writing. Such
positive evidence is seldom available in a given case.
Therefore, Courts are required to infer from the attendant
facts and circumstances as to the presence of an
agreement, which is entered into to do some illegal act or
some act which is legal but by illegal means.
34. In the case on hand, processing the charge slip
is a legal act that is the function of accused No.1 being the
Manager of Andhra Bank, Credit Card Division. However,
such an act was carried out by the accused No.1 with an
intention to have the illegal object being achieved
inasmuch as it is accused Nos.2 and 3 were not entitled to
received the amounts to the tune of Rs.4.88 lakhs and
3.30 lakhs, which were actually belonging to the Merchant
Establishments as referred to supra, have utilized the
same and purchased the M.Os.1 to 15 and also withdrew
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part of the cash and shared to the same with accused
No.1. Therefore, material evidence on record is sufficient
enough to conclude the offence under Section 120-B of
IPC, which has been rightly appreciated by the learned
Judge in the impugned judgment.
35. In the light of the grounds of appeal, this Court
re-appreciated material evidence on record and does not
find any legal infirmity and perversity in the said finding.
Moreover, even though the written submissions are
furnished by the accused No.1 and accused Nos.2 and 3
tried to explain that they were innocent, material on
record is otherwise. Therefore, their explanation cannot
be accepted. On the contrary, the impugned order of the
learned Special Judge is based on sound appreciation of
material evidence on record with logical reasons. In view
of the foregoing discussion, point Nos.1 and 2 are
answered in the affirmative and negative respectively.
REG.POINT No.3:
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36. Sri.B.B.Sagar, learned counsel for the
appellants had filed a memo referred to supra, accused
Nos.2 and 3 being the appellants, they are in advanced
age and they are in mid or late fifties.
37. Further the amount is also recovered from them
during the course of investigation. Seizure of M.Os.1 to
15, which are now in Court custody would be enough to
meet the wrongful loss of the bank.
38. Taking note of the same, an accused persons
being the first time offenders, and imprisonment ordered
by the learned Special Judge is only the simple
imprisonment for 3 years, this court is of the considered
opinion that period of sentence is set aside by enhancing
the fine amount in a sum of Rs.1,00,000/- (Rs.70,000/- +
Rs.1,00,000/- = Rs.1,70,000/-) would meet the ends of
justice in attendant facts and circumstances of the case.
39. It is also to be noted that the appellants do not
lay claim of M.Os.1 to 15. Which are to be confiscated and
returned to Andhra Bank and entire fine amount recovered
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could be paid as compensation to M/s Andhra Bank in
terms of Section 357 Cr.P.C would meet the ends of
Justice. Accordingly, point No.3 is answered partly in the
affirmative.
REG. POINT No.4:
40. In view of the finding of this Court on point
Nos.1 to 3 as above, following:
ORDER
i) The appeals are allowed-in part.
ii) While maintaining the conviction of the
appellants for the offence punishable
under Section 420 read with Section 120-
B of IPC, simple imprisonment of 3 years
ordered by the learned Special Judge is
set aside, by enhancing the fine amount in
a sum of Rs.1,00,000/- payable by each
of the appellants (Rs.70,000/- +
Rs.1,00,000/- = Rs.1,70,000/-). Entire
enhanced fine amount of Rs.1,00,000/- is
ordered be paid as compensation to
Andhra Bank.
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iii) Time is granted to pay the balance fine
amount till 28.02.2025. Failure to make
the payment of enhanced fine amount
would automatically restore the simple
imprisonment of 3 years ordered by the
learned Special Judge in impugned
judgment.
iv) M.Os.1 to 15 are ordered to be confiscated
and returned to Andhra Bank under due
identification.
Sd/-
(V SRISHANANDA)
JUDGE
KTY/BKN
