Karnataka High Court
M/S Geyem Impex (Pvt) Ltd vs State By Central Bureau Of ... on 30 January, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:4878
CRL.A No. 40 of 2012
C/W CRL.A No. 35 of 2012
CRL.A No. 45 of 2012
AND 1 OTHER
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 40 OF 2012
C/W
CRIMINAL APPEAL NO. 35 OF 2012
CRIMINAL APPEAL NO. 45 OF 2012
CRIMINAL APPEAL NO. 115 OF 2012
IN CRL.A No. 40/2012
BETWEEN:
SHRI. K.S. SRINIVASA MURTHY,
S/O. K.R. SUBBA RAO,
AGED ABOUT 65 YREARS,
FORMERLY ASST. GENERAL MANAGER,
REGION I, SBM BANGALORE,
RESIDING AT FLAT NO.S-202,
"THE HEAVEN" APARTMENTS,
CHIKKA KALLASANDRA MAIN ROAD,
Digitally
signed by 14TH CROSS, PADMANABHA NAGAR,
MALATESH BANGALORE - 560 061.
KC ...APPELLANT
Location: (BY SRI. P.N. HEGDE, ADVOCATE)
HIGH
COURT OF AND:
KARNATAKA
STATE BY CENTRAL BUREAU OF
INVESTIGATION, ACB, BANGALORE
...RESPONDENT
(BY SRI. P. PRASANNA KUMAR, ADVOCATE)
THIS CRL.A IS FILED U/S.374(2) CR.P.C BY THE ADV.,
FOR THE APPELLANT/ACCUSED NO.2 PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER
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CRL.A No. 40 of 2012
C/W CRL.A No. 35 of 2012
CRL.A No. 45 of 2012
AND 1 OTHER
DATED:28.11.11 PASSED BY THE XLVII ADDL.C.C. AND S.J.,
AND SPL. JUDGE FOR CBI CASES, BANGALORE IN
SPL.(CORRUPTION) CASE NO.509/02 - CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCES P/U/S 120(B)
AND 420 IPC AND SEC.13(1)(d) AND 13(2) OF PREVENTION OF
CORRUPTION ACT. AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO R.I. FOR A PERIOD OF TWO YEARS
AND TO PAY FINE OF RS.25,000/- (RUPEES TWENTY FIVE
THOUSAND). IN DEFAULT OF PAYMENT OF FINE, HE SHALL
UNDERGO FURTHER S.I. FOR A PERIOD OF SIX MONTHS FOR
THE OFFENCES P/U/S 120B OF IPC.
IN CRL.A NO. 35/2012
BETWEEN:
SRI. V.J.G PAIS
S/O S.M. PAIS
CHRISTIAN, AGED 60 YEARS,
NOW R/AT NO.2, LAZAR LAYOUT,
FRAZER TOWN, BANGALORE - 560 005.
...APPELLANT
(BY SRI. S. KRISHNASWAMY, ADVOCATE)
AND:
STATE BY CENTRAL BUREAU
OF INVESTIGATION, ACB, BANGALORE.
...RESPONDENT
(BY SRI. P. PRASANNA KUMAR, ADVOCATE)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED:28.11.11 PASSED BY
THE XLVII ADDL.C.C. AND S.J., AND SPL.JUDGE FOR CBI
CASES, BANGALORE IN SPL.(CORRUPTION) CASE
NO.509/02 - CONVICTING THE APPELLANT/ACCUSED NO.3
FOR THE OFFENCE P/U/S 120(B) AND 420 IPC AND
SEC.13(1)(d) AND 13(2) OF PREVENTION OF CORRUPTION
ACT. AND THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO R.I. FOR A PERIOD OF TWO YEARS AND TOPAY
FINE OF RS.25,000/- (RUPEES TWENTY FIVE THOUSAND).
IN DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO
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CRL.A No. 40 of 2012
C/W CRL.A No. 35 of 2012
CRL.A No. 45 of 2012
AND 1 OTHER
FURTHER S.I. FOR A PERIOD OF SIX MONTHS FOR THE
OFFENCES P/U/S 120B OF IPC.
IN CRL.A NO. 45/2012
BETWEEN:
1. SRI MATHEW JOSEPH
S/O.LATE JOSEPH
CHRISTIAN, AGED 60 YEARS,
RESIDING AT NO.301, SILVER STONE,
5TH CROSS, CHINNAPPANAHALLY,
MARATHAHALLY, BANGALORE - 560 037,
PERMANENT ADDRESS AT POTTAKULAM,
CATHOLIC TRUST BUILDING,
MOTTAMBALAM POST OFFICE,
KOTTAYAM, KERALA.
2. M/S. GEYEM IMPEX (PVT) LTD.,
SECTOR 1, HSR LAYOUT,
SUBBAIAH REDDY GARDEN, BANGALORE,
REPRESENTED BY ITS DIRECTOR
SRI. MATHEW JOSEPH.
...APPELLANTS
(BY SRI. S. KRISHNASWAMY, ADVOCATE)
AND:
STATE BY CENTRAL BUREAU
OF INVESTIGATION, ACB,
BANGALORE
...RESPONDENT
(BY SRI. P. PRASANNA KUMAR, ADVOCATE)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED:28.11.11 PASSED BY
THE XLVII ADDL.C.C. AND S.J., AND SPL.JUDGE FOR CBI
CASES, BANGALORE IN SPL.(CORRUPTION) CASE
NO.509/02 - CONVICTING THE APPELLANT/ACCUSED NO.5
AND 4 FOR THE OFFENCE P/U/S 120(B) AND 420 IPC. AND
THE APPELLANTS/ACCUSED NOS.5 IS SENTENCED TO
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CRL.A No. 40 of 2012
C/W CRL.A No. 35 of 2012
CRL.A No. 45 of 2012
AND 1 OTHER
UDNERGO R.I. FOR A PERIOD OF TWO YEARS AND
ACCUSED NO.4 IS SENTENCED TO PAY FINE OF
RS.50,000/- (RUPEES FIFTY THOUSAND), IN DEFAULT OF
PAYMENT OF FINE, ACCUSED NO.5 SHALL UNDERGO
FURTHER S.I. FOR A PERIOD OF ONE YEAR FOR SELF AND
SAME PERIOD OF ACCUSED NO.4 COMPANY FOR THE
OFFENCES P/U/S 120(B) OF IPC.
IN CRL.A NO. 115/2012
BETWEEN:
1. M/S. GEYEM IMPEX (PVT) LTD.,
SECTOR 1, HSR LAYOUT,
SUBBAIAH REDDY GARDEN, BANGALORE,
REPRESENTED BY GEORGE JACOB.
2. GEORGE JACOB , S/O T.C. JACOB,
JOINT MANAGING DIRECTOR,
M/S. GEYEM IMPEX (PVT) LTD.,
SECTOR 1, HSR LAYOUT,
SUBBAIAH REDDY GARDEN, BANGALORE,
THUNDIATH HOUSE, VAZHOOR - 686 504
...APPELLANTS
(BY SRI. P.N. RAMESH, ADVOCATE)
AND:
STATE BY CENTRAL BUREAU OF INVESTIGATION,
ACB, BANGALORE.
...RESPONDENT
(BY SRI. P. PRASANNA KUMAR, ADVOCATE)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED:28.11.11 PASSED BY
THE XLVII ADDL.C.C. AND S.J., AND SPL.JUDGE FOR CBI
CASES, BANGALORE IN SPL.(CORRUPTION) CASE
NO.509/02 - CONVICTING THE APPELLANT/ACCUSED NO.4
AND 6 FOR THE OFFENCE P/U/S 120(B) AND 420 IPC. AND
THE APPELLANTS/ACCUSED NOS.4 AND 6 ARE SENTENCED
TO UNDERGO R.I. FOR A PERIOD OF TWO YEARS EACH
AND ACCUSED NO.4 AND 6 SENTENCED TO PAY FINE OF
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CRL.A No. 40 of 2012
C/W CRL.A No. 35 of 2012
CRL.A No. 45 of 2012
AND 1 OTHER
RS.50,000/- (RUPEES FIFTY THOUSAND) EACH. IN
DEFAULT OF PAYMENT OF FINE, ACCUSED NO.6 SHALL
UNDERGO FURTHER S.I. FOR A PERIOD OF ONE YEAR FOR
THE SELF AND SAME PERIOD FOR A-4 COMPANY, BEING
REPRESENTATIVE OF A-4 COMPANY FOR THE OFFENCE
P/U/S 120(B) OF IPC.
THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.S.Krishnaswamy, Sri.P.N.Hegde,
Sri.P.N.Ramesh, learned counsels for the appellants and
Sri.P.Prasanna Kumar, learned counsel for the respondent.
2. In all these appeals, appellants are challenging the
judgment passed in Special (Corruption) Case No.509/2002
dated 28.11.2011 on the file of XLVII Additional City Civil and
Sessions Judge and Special Judge for CBI Case, Bangalore
whereby the appellants have been convicted and sentenced.
3. For the sake of convenience, case numbers, rank of
the accused persons, provision for which they have been
convicted and order of sentence in the impugned judgment is
tabulated as under:
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Case Rank of Provision Sentence ordered by the
Numbers accused for which learned Special Judge
persons accused
have been Accused Accused
Crl.A.No.40/ K.S.Srinivasa Accused Accused Nos.2 Accused
Murthy Nos.2 to 6 and 3 are Nos.4 to 6 are
2012 Accused No.2 have been convicted for the convicted for
offence
convicted the offence
punishable under
for the punishable
Section 120B IPC
Offence and sentenced to under Section
under undergo rigorous 120B IPC and
Section imprisonment for accused Nos.5
120B and a period of two and 6 are
420 of IPC years each and sentenced to
and under to pay fine of
undergo
Section Rs.25,000/-
each. Default of rigorous
13(1)(d) imprisonment
payment of fine,
read with for a period of
they shall
Section undergo simple two years
13(2) of imprisonment for each and
Prevention a period of six
Crl.A.No.35/ V.J.G.Pais accused Nos.4
of months each.
Accused No.3 to 6 are
2012 Corruption
Further accused sentenced to
Act, 1988
Nos.2 and 3 are pay fine of
hereby convicted Rs.50,000/-
for the offence each. In
punishable under default of
Section 420 of
payment of
IPC ad sentenced
fine, accused
to undergo
imprisonment for shall undergo
a period of two further simple
years each and imprisonment
to pay fine of for a period of
Rs.26,000/-
one year each
each. In default
of payment, they for self and
shall undergo same period
further simple for A-4
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Crl.A.No.45/ Mathew Joseph imprisonment for company,
- accused No.5 a period of six being
2012 and months each. representative
M/s. Geyem
of A-4
Impex (Pvt.) Further the
Limited - Accused Nos.2 company.
accused No.4 and 3 are
convicted for the Further the
offence accused Nos.4
punishable under to 6 are
Section 13(1)(d) hereby
read with Section convicted for
13(2) of the offence
Prevention of
punishable
Corruption Act,
and sentenced to under Section
undergo rigorous 420 of IPC
imprisonment for and accused
years each and are sentenced
to pay fine of
to undergo
Crl.A.No.115 M/s. Geyem Rs.50,000/-
each. In default rigorous
Impex (Pvt.)
/2012 Limited - of payment of imprisonment
accused No.4 fine, they shall for a period of
and George undergo simple two years
Jacob - accused imprisonment for each and
No.6 a period of one accused Nos.4
year each.
to 6
sentenced to
pay fine of
Rs.50,000/-
each. In
default of
payment of
fine, accused
shall undergo
further simple
imprisonment
for a period of
one year each
for self and
same period
for A-4
company,
being
representative
of A-4
company.
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AND 1 OTHER
4. Being aggrieved by the same, appellants are before
this Court, in these appeals.
5. Sri.P.N.Hegde, Sri.P.N.Ramesh and
Sri.S.Krishnaswamy, learned counsel for the appellants
reiterating the grounds urged in the appeal memorandum,
contended that the role assigned to the public servant and
beneficiaries in the impugned judgments that they have
misused the funds of the bank resulting in commission of the
aforesaid offences is not proved by placing cogent and
convincing evidence on record and thus, sought for allowing the
appeals.
6. They together point out that no pecuniary loss has
been caused to the bank and therefore, offence under Section
420 of IPC does not get attracted. They also pointed out that
public servant namely K.S.Srinivasa Murthy was not the person
who was required to process the loan application and it is
accused No.1 - Shivaswami who was the official superior of
K.S.Srinivasa Murthy was the person who was responsible for
parting away the funds of the bank and since he is no more,
the case of the prosecution stood abated as against
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Shivaswami and taking note of the fact that said K.S.Srinivasa
Murthy was adhered to the directions issued by his official
superior - Shivaswami, no independent motive could be
attributed to K.S.Srinivasa Murthy and thus there is no material
on record to direct the offence under Section 13(1)(d) read
with Section 13(2) of the Prevention of Corruption Act, 1988.
7. Sri.Krishnaswamy, learned counsel for the
appellants contended that beneficiary M/s.Geyem Impex
(Private) Limited, represented by its Managing Director -
Sri.S.Mathew Joseph did not obtain any benefit which is beyond
the scope of public servant and his application seeking financial
assistance was processed in due course by the bank. Amount
of loan is repaid by the company and if at all in processing said
request, any irregularities committed by the bank officials, the
beneficiary cannot be held responsible for the same as material
on record would hardly support the conviction of the
M/s.Geyem Impex (Private) Limited, or its Managing Director
for the offence punishable under Section 120-B of IPC and
therefore, sought for allowing the appeals.
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AND 1 OTHER
8. Alternatively, Sri.P.N.Hegde, learned counsel
representing K.S.Srinivasa Murthy and M/s.Geyem Impex
(Private) Limited represented by Sri.Krishnaswamy, learned
counsel files separate affidavits and memo and sought for
setting aside jail sentence.
9. Contents of the memo and affidavits are extracted
here under for the sake of clarity and certainty:
Memo filed by accused No.5 in Crl.A.No.45/2012:
"It is submitted that accused No.5, the appellant being
the beneficiary of loan, is not benefitted in any other
manner, nor has made any other Accused, namely
Accused Nos.2, 3 ad 5 any benefit under the transaction.
There is no illegal gratification. The same be taken on
record in the interest of equity and justice."
Affidavit filed by accused No.3 in Crl.A.No.35/2012
"V.J.G.Pais S/o S.M.Pais, Christian aged 72 years, residing
at No.42, Chetana B Blok, 100 feet Road, Navule,
Shivamogga - 577204, now in Bengaluru do hereby
solemnly affirm and stake on oath as under:
1. I am the appellant in this case and I am conversant
with all facts of the case.
2. I was accused No.2 in the trial Court.
3. I state that CBI has registered a case against me and
others under the provisions of Prevention of Corruption Act
and other offences under IPC in CC 509/2002, on the file
of XLVIII Additional City Civil and Sessions Judge and
Special Judge for CBI cases. In view of pendeny of the CC
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AND 1 OTHER
509/2002 I was denied promotion, increments etc. I
attained super annulations on 30th November 2011.
4. I submit that after trial the trial court has convicted me
along with others by judgment dated 28.11.2011. Now I
have filed this appeal urging my innocence.
5. I hereby declare that I will not claim any notional
promotions, increments or any other monetary benefits
out of such notional promotions or increments even if I
succeed in the appeal."
Affidavit filed by accused No.2 in Crl.A.No.40/2012
I, K.S.Srinivasa Murthy S/o K.R.Subba Rao, aged about 78
years, Former Assistant General Manager, Region-1, SBM,
Bangalore, No.s-202, "The Heaven Apartment",
Chikkakallasandra Main Road, 14th Cross,
Padmanabhanagar, Bangalore-61, do hereby state on oath
as under:
1. I state that, I am the appellant in the above matter
and as such, I am competent to swear the contents of this
affidavit.
2. I state that, during 1998-99 I was working as Assistant
General Manager, Region-1, State Bank of Mysore,
Bangalore.
3. I state that, CBI has registered a case against me and
others in Crime No.R.6(A)/2001 for the offence punishable
under the provisions of Prevention of Corruption At and
Indian Penal Code. On account of the registration of the
case, all my service prospect like promotions, increments
etc were withheld/stopped though I was eligible and
ultimately, I attained the super annuation on 31/10/2006
in the same Grade.
4. I State that, after the full dressed trial, I have been
convicted of the offence punishable under Section 13(1)(d)
of the PC Act and Section 120B read with Section 420 of
IPC vide judgment dated 28/11/2011.
5. I state and declare that, I will not claim any notional
promotions, increments or any monitory benefits out of
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such notional promotion or increments even if I succeed in
the above appeal either partly of fully."
10. Per contra, Sri.P.Prasanna Kumar, learned counsel
representing the CBI contended that but for the active
participation of K.S.Srinivasa Murthy, the file could not have
been processed by Shivaswami and if at all, K.S.Srinivasa
Murthy was duty bound to carry out the instructions of
Shivaswami, he was free to make necessary endorsement
emphasizing the fact that file does not require to be further
processed as the loan had already been disbursed. If any such,
endorsement had been made by K.S.Srinivasa Murthy, then
there could have been inference that he was not a part of
conspiracy and in the absence of such note been made by
K.S.Srinivasa Murthy in processing the request made by
M/s.Geyem Impex (Private) Limited representing by its
Managing Director, the argument put forth on behalf of
K.S.Srinivasa Murthy that at the most, the act attributable to
K.S.Srinivasa Murthy is in the nature of irregularity and not
illegality cannot be countenanced in law.
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AND 1 OTHER
11. Insofar as contentions urged on behalf of
M/s.Geyem Impex (Private) Limited and its representatives are
concerned, Sri.P.Prasanna Kumar, contended that mere
repayment of the financial assistance would not ipso facto
efface the criminal liability in terms of the principles of law
enunciated in the case of Gian singh v. State of Punjab
reported (2012) 10 SCC 303 and thus, sought for dismissal of
the appeals.
12. Insofar as alternate submission is concerned,
Sri.P.Prasanna Kumar, contended that material evidence on
record is sufficient enough to infer that there was an pecuniary
advantage obtained by K.S.Srinivasa Murthy and Shivaswami
as admittedly the financial assistance sought for by M/s.Geyem
Impex (Private) Limited and which has been granted to it
beyond the powers of Shivaswami and K.S.Srinivasa Murthy as
the branch was not authorized to lend the loan beyond
Rs.100,00,000/- limit.
13. He also pointed out that in respect of pecuniary
advantage is concerned, it is difficult to place positive evidence
on record and Courts are not precluded from inferring the
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exchange of pecuniary advantage by the circumstances which
are placed on record. In other words, the pecuniary advantage
can also be established by indirect evidence which is present in
the case on hand in an over whelming manner and thus, sought
for dismissal of the appeal in toto.
14. Having heard the parties in detail, this Court
perused the material on record meticulously.
15. On such perusal of the material on record, following
points would arise for consideration:
1. Whether the prosecution was successful enough in
establishing all ingredients to attract the offences
under Section 120B and 420 of IPC and under
Section 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988?
2. Whether the impugned judgments are suffering
from legal infirmity and perversity and thus calls for
interference?
3. Whether the sentence needs modification?
4. What order?
REG. POINT Nos.1 AND 2:
16. In the case on hand, the fact of M/s.Geyem Impex
(Private) Limited approaching the State Bank of Mysore, TATA
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AND 1 OTHER
Silk Farm Branch for financial assistance stands established.
Accused No.1 - Shivaswami was earlier in State Bank of
Travancore and at that juncture, he had come in contact with
M/s.Geyem Impex (Private) Limited. Later, when he
approached for the financial assistance from State Bank of
Mysore, TATA Silk Farm Branch having regard to the limit that
was available to the TATA Silk Farm Branch, his request for
financial assistance would not have been finalized by accused
No.1 at the branch level.
17. Admittedly, if the branch intends to grant a financial
assistance to the customers beyond a particular limit that was
made available to the branch (in the case on hand
Rs.100,00,000/-) the only course is to recommend the said
proposal to the regional office with necessary appraisal note.
18. In the case on hand, prosecution placed on record
such necessary documentary evidence whereby it is established
that application seeking financial assistance was not properly
processed and material on record also depict that the
assistance was sanctioned at the first instance and later on the
appraisal notes were being prepared.
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AND 1 OTHER
19. Defence taken by accused No.2 - Shrinivasa Murthy
is that he was working under accused No.1 and he is bound to
adhere to the directions issued by accused No.1 at the branch
level as accused No.1 was his official superior. No doubt, such
a defence is tried to be probabilised by accused No.2 not only
by suggesting the prosecution witnesses about the role played
by him but also based on documentary evidence were signature
of accused No.2 is found with necessary precautionary
guidelines. However, as could be seen from the documentary
evidence placed on record by the prosecution, majority of which
was not disputed by the appellants herein, the proposal was not
properly processed at the branch level.
20. Reasons assigned in this regard by learned counsel
for the appellants is that on account of competitive business in
the banking sector, loan applications or loan proposals must be
processed early and while so doing, a few minor deviations are
found, the same would amount to irregularity and not illegality.
21. The deficiencies noticed by official superior of
accused No.1 and accused No.2 while according the sanction to
prosecute would prima facie depict that deviations were not
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minor deviations resulting in irregularity but it was hitting to
the very bottom of the procedure for processing the request for
financial assistance turning out to be illegality.
22. Even though there is a detailed cross-examination
with regard to validity of the sanction granted by P.W.3, 4 and
7, but in such cross-examination, no useful material is elicited
so as to hold that the sanction orders are invalid or it has been
issued in a mechanical manner. Usual suggestion that there
was no independent application of mind while passing the
sanction order issued by aforesaid prosecution witnesses
having been denied by them. As such, the learned Special
Judge has rightly recorded that there is no material on record
which would indicate that the sanction order was invalid.
23. No doubt, mere sanction order would not itself be
treated as proof of illegality because same is to be established
by the prosecution before the Court by placing cogent evidence
on record. But for the limited purpose of finding out whether
the acts attributable to the officials of the bank would be a
irregularity or illegality, it is the sanctioning authority who are
the best persons to depose about the same.
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AND 1 OTHER
24. Apart from issuing the sanction order, departmental
enquiry also ensued insofar as accused Nos.1 to 3 are
concerned. In such enquiry also, there was a clear finding
recorded that accused Nos.1 to 3 did not discharge their work
as per the norms, rules and regulations applicable to them
while processing the request for financial assistance.
25. Needless to emphasize that the findings recorded
by the disciplinary authority became final and consequential
orders were also passed insofar as accused No.1 to 3 are
concerned.
26. All these aspects of the matter when viewed
cumulatively, acts attributable to accused Nos.1 to 3 cannot be
termed as mere irregularity. Therefore, the finding of guilt
recorded by the learned Special Judge in the impugned
judgment for the offences punishable under Section 420 of IPC
needs no interference.
27. The alternate argument putforward for interfering
with the finding of guilt by learned counsel for the appellant in
respect of 420 of IPC was that there was no pecuniary loss
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AND 1 OTHER
caused to the bank nor as such, there was no wrongful gain to
the appellants are concerned and therefore, sine qua non
parameter namely wrongful loss to the bank and wrongful gain
to the appellants being absent, learned Special Judge ought not
to have convicted for the offence under Section 420 of IPC
cannot also be countenanced in law inasmuch as even
temporary loss that has been caused to the bank would get
attracted and criminality does not get effaced by repayment of
the amount as is held in Gian singh v. State of Punjab
reported (2012) 10 SCC 303. Therefore, conviction under
Section 420 of IPC needs to be maintained.
28. Insofar as offence under Section 120-B of IPC is
concerned, it is settled principles of law and requires no
emphasis that seldom direct evidence would be available to be
placed before the Court for establishing the offence under
Section 120-B of IPC. Further, the Courts are not precluded
from inferring from the set of circumstances that offence under
Section 120-B of IPC as is held by the Hon'ble Apex Court in
the case of Mohammad Khalid v. State of West Bengal
reported in (2002) 7 SCC 334, wherein the Hon'ble Apex
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AND 1 OTHER
Court reiterated the principles of law enunciated in the
Constitution Bench in Kehar Singh v. State of West
Bengal reported in (1988) 3 SCC 609.
29. In the case on hand, but for the active involvement
of accused Nos.1 to 3 in processing the request of accused No.4
represented by accused Nos.5 and 6, the loan would not have
been sanctioned based on the appraisal note and processing of
the request of accused No.4. While establishing the offence
under Section 120-B of IPC each and every conspirator need
not know entire design of the final act. What is to be looked
into is but for the individual role played by each of the
conspirators, if the final act is not accomplished, the element of
existence of conspiracy must be inferred by the Court.
30. Therefore, the argument putforth on behalf of the
appellants that it is accused No.1 who was whole and sole
responsible for granting of the loan beyond the scope and
ambit of the State Bank of Mysore, TATA Silk Farm Branch
cannot be countenanced in law. Therefore, conviction of the
appellants for the offence under Section 120-B of IPC also
needs to be maintained.
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31. Having said thus, material evidence on record does
not establish any positive material that there was an pecuniary
advantage that has been parted away by accused Nos.4 to 6 for
the favour that has been granted to accused Nos.4 to 6 by
accused Nos.1 to 3 by misusing their official position.
32. While maintaining that there is material on record
for upholding the conviction for the offence under Section 420
and 120-B of IPC, ipso facto this Court cannot infer that there
was an pecuniary advantage transferred.
33. No doubt, when there is no direct evidence
available on record for attracting the offence under Section
13(1)(d) of Prevention of Corruption Act, 1988, Courts are not
precluded from considering the circumstantial evidence.
34. In the case on hand, there is no such material
available on record to show that there was a favour made by
accused Nos.1 to 3 to accused Nos.4 to 6 misusing their official
position. One such circumstance that is being emphasized by
the prosecution in this regard is that accused No.1 was working
in State Bank of Travancore, Kanjikuzhy Branch and again was
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posted as a head of the branch in TATA Silk Farm Branch,
(DGM for Bengaluru region comprising of Tumkur District as
well) has shown some extra favour to accused Nos.4 to 6 who
have followed him from State of Kerala to State of Karnataka.
35. Under the banking rules and norms, there is no bar
for an interstate loan transaction merely on the fact that
accused Nos.4 to 6 sought for necessary sanction of the loan
through accused No.1. It cannot be held that accused Nos.2
and 3 have received pecuniary advantage in processing the
loan at the request of accused Nos.4 to 6 nor there is any other
circumstance placed by the prosecution even to infer or
presume the existence of pecuniary advantage being
transferred by accused Nos.4 to 6 to accused Nos.2 and 3.
36. Accused No.1 - Shivaswami being dead, he was the
best person to answer those incriminatory materials and
therefore, the arguments put forth on behalf of the prosecution
that accused Nos.2 and 3 also shared the portion of pecuniary
advantage is farfetched imagination and cannot be
countenanced in law.
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37. It is settled principles of law in the criminal
jurisprudence that any amount of suspicion would not take the
seat of proof likewise, it is equally celebrated principles of
criminal justice system that if two views are permissible in the
same set of facts and material evidence on record, the view
that favours the accused must be preferred.
38. Yet another celebrated principle in the criminal
jurisprudence is that prosecution has to travel a long distance
between 'may be proved' and 'actual proof thereof'.
39. Keeping in background, these celebrated principles,
this Court does not find any compelling circumstances so as to
infer the exchange of pecuniary advantage by accused Nos.4 to
6 to accused Nos.2 and 3 so as to maintain the conviction of
accused Nos.2 and 3 for the offence punishable under Section
13(1)(d) of the Prevention of Corruption Act, 1988.
40. Having said so, the apprehension expressed by the
prosecution is that based on the finding recorded by this Court,
accused Nos.2 and 3 may file necessary application for their re-
instatement and seeking consequential financial benefits. Said
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argument holds sufficient force while considering the case of
the parties and also appreciating the material evidence
especially when the Courts ventures to acquit a public servant
for the offence under Section 13(1)(d) of the Prevention of
Corruption Act,1988 by reversing the finding recorded by the
learned Special Judge after due trial.
41. To quell such an apprehension, accused Nos.2 and
3 who are the appellants in Crl.A.Nos.40/2012 ad 35/2012
respectively, have filed affidavits. The contents of the affidavits
and the memo as referred to supra would be sufficient enough
to quell such apprehension of the prosecution.
42. Therefore, placing the affidavits on record filed by
accused Nos.2, 3 and 5, this Court is of the considered opinion
that conviction of accused Nos.2 and 3 for the offence
punishable under Section 13(1)(d) of the Prevention of
Corruption Act, 1988 needs to be set aside.
43. Accordingly, point Nos.1 and 2 are answered partly
in the affirmative.
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REG.POINT No.3:
44. This Court having acquitted accused Nos.2 and 3 for
the offence punishable under Section 13(1)(d) of the
Prevention of Corruption Act, 1988, where minimum
punishment of six months simple imprisonment is prescribed,
the argument put forth on behalf of the appellants that
appellants are in now advanced age and at this distance of
time, if they are directed to join the prison by upholding the
imprisonment period, severe hardship would be caused to
them, cannot be lost sight of.
45. Moreover, since conviction is maintained for the
offences punishable under Section 420, 120-B of IPC, where
there is no minimum punishment prescribed, this Court is of
the considered opinion that by enhancing the fine amount
reasonably, if accused Nos.2, 3 and 5 are directed to undergo
simple imprisonment for a day till rising of the Court by
enhancing the fine amount to Rs.1,00,000/- each for accused
Nos.2 to 6, the ends of justice would be met. Accordingly,
point No.3 is answered partly in the affirmative.
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REG.POINT No.4:
46. In view of the findings of this Court on point Nos.1
to 3 as above, following:
ORDER
i. Criminal Appeals are allowed in part.
ii. While maintaining the conviction of the
appellants for the offences punishable under
and 5 who are the appellants in
Crl.A.Nos.40/2012, 35/2012, 45/2012 are
directed to undergo simple imprisonment for a
day till rising of the Court and accused Nos.2 to
6 are directed to pay enhanced fine amount of
Rs.1,00,000/- each on or before 28.02.2025
failing which accused Nos.2, 3, 5 and 6 are
directed to undergo simple imprisonment for a
period of six months.
iii. Since this Court has acquitted accused Nos.2
and 3 for the offence punishable under Section
13(1)(d) of the Prevention of Corruption
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Act,1988, fine amount already deposited if any
shall be adjusted against the enhanced fine
amount.
iv. Office is directed to return the Trial Court
Records forthwith with copy of this order for the
purpose of issuing modified conviction order.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT: BHK
