Kerala High Court
V.Sathyapalan vs Cbi/Spe, Kochi-17 on 4 April, 2025
2025:KER:29135
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947
CRL.APPEAL NO. 2544 OF 2009
AGAINST THE JUDGMENT DATED 06.11.2009 IN CC NO.3 OF 2003
OF THE SPECIAL COURT (SPE/CBI)-I, ERNAKULAM
APPELLANT/4TH ACCUSED:
K.S.RAMANKUTTY
KADAVIL HOUSE, CARMAL MOUNT ROAD,
KANJIRAPPILLY, (KODAVANPADATH HOUSE,
KALLEPPADAM P.O., PAZHAYANNUR, THRISSUR-87).
BY ADVS.
SRI.T.V.GEORGE
SRI.JIMMY GEORGE THADATHIL
RESPONDENT/COMPLAINANT:
CBI/SPE/KOCHI-17, REP.BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SREELAL WARRIAR, SC, CBI
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Crl.Appeal Nos.2544, 2545 and 2581 of 2009
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 19.03.2025, ALONG WITH CRL.A.2545/2009 AND
CONNECTED CASES, THE COURT ON 04.04.2025 DELIVERED THE
FOLLOWING:
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3
Crl.Appeal Nos.2544, 2545 and 2581 of 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947
CRL.APPEAL NO. 2545 OF 2009
AGAINST THE JUDGMENT DATED 06.11.2009 IN CC NO.3 OF 2003
OF THE SPECIAL COURT (SPE/CBI)-I, ERNAKULAM
APPELLANTS/ACCUSED 2 & 3:
1 T.LASKSHMI DEVI
W/O M.R.SOMARAJAN, AGED 52 YEARS, PERMANENTLY
RESIDING AT, MAPPALAPARAMBIL,
P.O.THAMPALACKADU, KANJIRAPPALLY, VILLAGE,
KOTTAYAM DISTRICT.
2 M.R.SOMARAJAN S/O. NARAYANA PANICKER
AGED 68 YEARS, PERMANENTLY RESIDING AT,
MAPPALAPARAMBIL, P.O.THAMPALACKADU,
KANJIRAPPALLY, VILLAGE, KOTTAYAM DISTRICT.
BY ADVS.
A.B.MOHANAKUMAR
BAJI SOMARAJAN
V.A.PRADEEP KUMAR
RESPONDENT/COMPLAINANT:
CBI, KOCHI BRANCH,
KALOOR, KOCHI - 682 017, REPRESENTED BY ITS
SUPERINTENDENT OF POLICE.
BY ADV SREELAL WARRIAR, SC, CBI
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Crl.Appeal Nos.2544, 2545 and 2581 of 2009
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 19.03.2025, ALONG WITH CRL.A.2544/2009,
2581/2009, THE COURT ON 04.04.2025 DELIVERED THE
FOLLOWING:
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Crl.Appeal Nos.2544, 2545 and 2581 of 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947
CRL.APPEAL NO. 2581 OF 2009
AGAINST THE JUDGMENT DATED 06.11.2009 IN CC NO.3 OF 2003
OF THE SPECIAL COURT (SPE/CBI)-I, ERNAKULAM
APPELLANT/5TH ACCUSED:
V.SATHYAPALAN
R 82/5, RAMESH PARK, LAXMI NAGAR, DELHI-92.
BY ADVS.
SRI.R.GIREESH VARMA
SRI.V.K.GANGADHARAN
RESPONDENT/COMPLAINANT:
CBI/SPE, KOCHI-17
KOCHI-17, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY ADV SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 19.03.2025, ALONG WITH CRL.A.2545/2009
AND CONNECTED CASES, THE COURT ON 04.04.2025
DELIVERED THE FOLLOWING:
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Crl.Appeal Nos.2544, 2545 and 2581 of 2009
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal Nos.2544, 2545 and 2581 of 2009
-----------------------------------------------------------
Dated this the 4th day of April, 2025
JUDGMENT
These appeals arose on the judgment dated 06.11.2009
of the Court of Special Judge (SPE/CBI)-I, Ernakulam. Out of
the six accused, who faced trial, accused Nos.2 to 5 were
convicted; while accused Nos.1 and 6 were acquitted. Accused
Nos.2 and 3 together filed Crl.Appeal No.2545 of 2009,
accused No.4 filed Crl.Appeal No.2544 of 2009 and accused
No.5 filed Crl.Appeal No.2581 of 2009. Since the issues
involved in these appeals are common, these appeals are
disposed of by this common judgment.
2. There were two sets of allegations. The first set
pertaining to accused No.6 and owing to his acquittal, the
facts concerning that matter need not require mention. The
accusation against accused Nos.2 to 5, which requires
mention are the following:
Accused No.1 was the Manager of Kottayam Branch of State
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Bank of India (SBI) and as such a public servant. He together
with accused Nos.2 to 5 hatched a conspiracy for
misappropriating money by cheating the SBI. In furtherance
of that conspiracy, accused No.3 presented six discounting
draft bills (DD bills) together with forged lorry receipts and
other documents on 23.03.1998 in the Bank. He submitted
three more such discount draft bills along with forged lorry
receipts and connected documents on 26.03.1998 in the
Bank. The consignments were centrifugal latex. The
consignees were M/s Mattress House and M/s Premier Foam
Industries, New Delhi, of which accused No.5 was the
proprietor. M/s Kerala Trading Corporation to which accused
No.2 is the proprietrix had sent the consignments. Her
husband is accused No.3. The lorry receipts were fabricated
and corresponding invoices were drawn falsely. Accused No.1
allowed to discount the fake bills so submitted and paid an
amount of Rs.30,60,855/- to accused Nos.2 and 3 causing
loss of that amount to the bank. The offences thereby
committed by the accused are punishable under Sections
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120B, 467, 468 and 471 of the Indian Penal Code, 1860
(IPC), and Section 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (PC Act).
3. At the trial of the case, PWs.1 to 32 were examined
and Exts.P1 to P284 were marked. On the close of the
prosecution evidence, the accused were questioned under
Section 313(1)(b) of the Code of Criminal Procedure, 1973
(Code). All of them maintained that they were innocent. Their
respective defences were also mentioned in their statements.
DW1 was examined and Exts.D1 to D10 were marked on the
side of the accused. The Special Court, after appreciating the
evidence, convicted accused Nos.2 to 5 for the offences under
Section 120B read with Sections 420, 467, 468 and 471 of the
IPC. They were sentenced accordingly as well.
4. Heard the learned counsel appearing for the
respective accused and the learned Standing Counsel for the
CBI.
5. Accused No.2 was the proprietrix of M/s Kerala
Trading Corporation. Accused No.3 is her husband. He had
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another proprietorship concern named M/s Amba Rubber
Industries. They were dealing with centrifuged latex. The said
concerns used to sell centrifugal latex to accused No.5, who
carries on business in New Delhi. Accused Nos.2 and 3 have
accounts with Kottayam Branch of SBI in the name of M/s
Kerala Trading Corporation. They had a discounting limit of
Rs.50 lakhs and a cash credit facility of Rs.10 lakhs. These
facts are not under challenge.
6. The case of the prosecution is that nine DD bills
each accompanied by request for discounting and consignee
copy of the lorry receipts evidencing sending of consignments
to the consignees at New Delhi were submitted in the
Kottayam branch of the SBI. It was stated that each
consignment was insured, which was later turned out to be
untrue. The documents were signed by accused No.2 for M/s
Kerala Trading Corporation. On the request of accused Nos.2
and 3, all the nine requests for discounting were sanctioned
by accused No.1 and a total amount of Rs.30,60,855/- was
paid. The said amount was credited to the account maintained
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by M/s Kerala Trading Corporation and was eventually
withdrawn.
7. Accused Nos.2 and 3 did not dispute the fact that
such an amount was received by them from the bank. Besides
their statements during examination under Section 313(1)(b)
of the Code, Ext.D7 letter sent by accused No.3 to PW21, who
was the Divisional Manager of Transport Corporation of India
(TCI), through which the consignments were sent, it has been
categorically admitted that such discounts were availed and
money received. Dehors such admission, the prosecution
adduced overwhelming evidence as well. Every such
transaction is borne by records and all such records are
brought in evidence. Therefore, without much deliberation, it
can be said that the findings of the Special Court in the above
regard, which was after adverting to the evidence came on
record, is liable to be affirmed.
8. The modus operandi was availing bill discounting
from the bank making use of fabricated lorry receipts.
Accused No.4 was the Manager of Kanjirappally branch of TCI.
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He received the consignments each of one barrel of double
centrifuged latex to be sent to either M/s Mattress House or
M/s Premier Foam Industries, both at New Delhi and issued
lorry receipts. As explained by PW21, accused No.4 ought to
prepare original and four carbon copies of each lorry receipt.
The original will be given to the consignor. One exact carbon
copy each of it shall be given to the consignee, records
section and filing section.
9. Nine such consignments were sent, each was one
barrel of double centrifuged latex. Six consignments were sent
on 23.03.1998 and three were on 26.03.1998. The consignee
copy of the lorry receipts is expected to be sent to the
consignee. It can be sent directly or through the bank of the
consignee. PW1, who was the Deputy Manager (Accounts) in
the SBI during the relevant time explained that the bank of
the consignee in the present cases was Dena Bank, Alipore
Branch. The documents were to be sent to that bank through
the Chandni Chowk Branch of the SBI. If the consignor needs
to discount the bill, he is expected to submit the consignee
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copy of the lorry receipts along with the discounts draft bill
and the request. After such discounting only, the papers along
with discounting particulars would be sent and in that event
the lorry receipts and documents are sent through the bank
only. Accused Nos.2 and 3 discounted all nine bills and
therefore all such bills were sent to the consignee through
the bank as explained above.
10. From the evidence of PW1 and PW2, who were
officers of the SBI, Kottayam Branch, it is seen that all the
said nine discounted bills along with lorry receipts were sent
to Chandni Chowk Branch of the SBI for collection from the
consignee through his bank, Dena Bank, Alipore Branch. But
none of those consignments was taken delivery of. The
consignee, according to the prosecution, is accused No.5.
Following that, enquiry ensued and the foul-play was
unearthed. PW2 deposed that he went to the Kanjirappally
Branch of TCI, from where he discreetly verified the record
copy corresponding to the consignee copy of the lorry receipts
submitted by accused Nos.2 and 3 for discounting. The
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forgery in the consignee copy of the lorry receipts and
creation of corresponding false documents such as, invoice
and DD bills were revealed. Resultantly the crime was
registered and investigation taken place.
11. During the investigation, lorry copy, record copy
and file copy of the disputed consignee copy of the lorry
receipts were seized and produced before the court. Exts.P4,
P8, P12, P16, P20, P24, P33, P37 and P41 are the consignee
copy of the lorry receipts said to have been forged. Each of
the said consignee copies of the lorry receipts was submitted
in the bank together with a request for discounting, an invoice
and discount draft bill. The said documents corresponding to
Ext.P4 are Exts.P1, P2 and P3. Thus, Exts.P1 to P4 thus
constitute one set of documents submitted by accused Nos.2
and 3 for discounting the bill amount of the first consignment.
Four such documents were submitted by them in the bank in
relation to each of the said nine consignments. The details of
the consignee copy of the lorry receipts and accompanied
documents submitted for discounting, corresponding lorry
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copy, record copy and file copy as evidenced in this case are
tabulated below:
Sl. Consignee copy and Lorry copy Record copy File copy
No. connected documents
1 Exts.P1 to P4 Ext.P106 Ext.P124 Ext.P115
2 Exts.P5 to P8 Ext.P107 Ext.P125 Ext.P116
3 Exts.P9 to P12 Ext.P108 Ext.P126 Ext.P117
4 Exts.P13 to P16 Ext.P109 Ext.P127 Ext.P118
5 Exts.P17 to P20 Ext.P110 Ext.P128 Ext.P119
6 Exts.P21 to P24 Ext.P111 Ext.P129 Ext.P120
7 Exts.P30 to P33 Ext.P114 Ext.P132 Ext.P123
8 Exts.P34 to P37 Ext.P112 Ext.P130 Ext.P121
9 Exts.P38 to P41 Ext.P113 Ext.P131 Ext.P122
From the above, it can be seen that lorry copy, record copy
and file copy of the forged consignee copy of the lorry receipts
are available on record. Corresponding copies of Ext.P4 are
Exts.P106, P124 and P115. Similarly, the copies of all other
lorry receipts are also available. Identical are the corrections
carried out in the consignee copies. A comparison of the
consignee copy with other copies is enough to understand the
manipulation brought about. For an easy understanding photo
impression of the first among the forged consignee copy,
which is Ext.P4 and its other copies, Exts.P106, P115 and
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P124 are copied below:
Exhibit P4
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Exhibit P106
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Exhibit P115
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Exhibit P124
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12. The lorry receipt was drawn concerning one barrel
of centrifugal latex. Price of which was shown as Rs.880/-.
The price along with handling charges and sales tax was
Rs.931/-. The correction carried out in the consignee copy of
the lorry receipts were; "ONE" was corrected as "FOURTY
ONE" barrels. The price amount was Rs.880/- and the total
amount was Rs.931/-. That amount was converted as
Rs.19,931/- while prefixing "19". The total amount shown as
"931" was corrected as "19931" by prefixing "19". The total
amount written in words was also corrected by prefixing
"Nineteen thousand". Thus, the lorry receipts drawn in respect
of a consignment of one barrel of centrifugal latex was
changed to 41 barrels of centrifugal latex, and the amount of
Rs.931/- was corrected as Rs.19,931/-. Using the said
corrected consignee copy of nine lorry receipts, amounts were
discounted.
13. As stated, PW21 explained the procedure for
drawing up lorry receipts by an official in TCI. There cannot be
any difference between various copies of a lorry receipt. When
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the consignee copies presented by accused Nos.2 and 3 in the
bank for the purpose of discounting, totally vary from the
other copies, namely, lorry copy, record copy and file copy; all
bearing the same serial number, the forgery is obvious. Of
course, the consignor copy, which should have been with
accused Nos.2 and 3 were not recovered. That does not,
however, affect the case of the prosecution at all. Addition of
words in consignee copies are quite evident on a perusal of
these documents itself. That together with a comparison of
the other copies, it is quite evident that the consignee copies
were forged and the same were submitted in the bank for
discounting together with invoice and other documents stating
incorrect facts. When the said documents were submitted in
the bank and obtained money by discounting the bills, that
amounted to using of false documents as genuine and
obtaining money fraudulently from the bank.
14. In order to prove the charge that the forgery was
committed in furtherance of a conspiracy hatched among
accused Nos.2 to 5, the prosecution can essentially rely on
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the evidence of PWs.1, 2, 9, 21 and 29. As stated, PWs.1 and
2, who were officials in Kottayam Branch of the SBI, deposed
about submission of Exts.P1 to P24 and P30 to P41 for the
purpose of discounting the bills and receipt of money.
Submission of those documents in the name of M/s Kerala
Trading Corporation is not disputed. The signatures of accused
No.2 in the said documents have been proved by oral
evidence, circumstances and opinion of PW29. PW9 is an ex-
employee of Kerala Trading Corporation. He identified the
signatures of accused No.2. The bank officials also identified
the signatures. Accused Nos.2 and 3 having accounts with
Kottayam Branch of SBI for years together, the officials could
well identify their signatures.
15. Exts.P1 to P24 and P30 to P41 were handed over to
PW1 by accused No.3. Her evidence is convincing. PW29 is a
handwriting expert. He was working as Deputy Government
Examiner, Questioned Documents in the office of the
Government Examiner of Questioned Documents, Government
of India. In Ext.P253 he furnished his categoric opinion about
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signatures of accused Nos.2 and 3. Specimen signatures of
accused Nos.2 and 3 were compared with the questioned
signatures in the DD bills, invoice, etc. in question. Signatures
in those documents were proved to be of accused No.2.
Signatures of Ext.P198 series invoices were found to be that
of accused No.3. The said opinion of PW29 together with the
oral testimonies about authenticity of the signatures and the
circumstance that the discounted amounts were credited to
the account of M/s Kerala Trading Corporation proved beyond
doubt that the documents in question were falsely created at
the instance of accused Nos.2 and 3.
16. The role of accused No.4 is in the creation of false
consignee copies of the lorry receipts. The learned Special
Judge after analysing the evidence held that accused No.4 left
out blank areas in the lorry receipts in order to facilitate filling
up the same at a later point of time. It is submitted by the
learned counsel for accused No.4 that the aforementioned
finding itself is enough to absolve accused No.4. Opinion of
PW29 that the handwritings in the disputed consignee copies
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(Exts.P4, P8, P12, P16, P20, P24, P33, P37 and P41) were of
accused No.4 is assailed by contending that it was not
specific.
17. The learned counsel for accused No.4 would submit
that only evidence practically available to implicate him is the
opinion of PW29 contained in Ext.P253. But the said opinion is
useless inasmuch as the embellishments in those documents
were not specifically examined. Accused No.4 admitted
issuance of the lorry receipts in his hand. He contends that at
the time of issuance, all were exact copies, and the
modifications were made subsequently. It is submitted by the
learned counsel that when accused No.3 categorically
admitted in Ext.D7 that such additions/alterations were made
at his instance as required by accused No.5, there could not
be a finding that accused No.4 was in any way involved in the
forgery. The further submission is that the prosecution did not
allege when and where the alleged conspiracy took place and
that accused No.4 did not obtain any pecuniary advantage in
the matter. When the prosecution failed to adduce any
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evidence to prove complicity of accused No.4, the opinion
rendered by PW29 alone cannot be based on to convict him.
In this regard the learned counsel placed reliance on
Vijayachandran K.K. and others v. Superintendent
of Police and others [2008 (2) KLJ 751] and Yogarani
v. State by the Inspector of Police [AIR 2024 SC
4641].
18. As stated, a comparison of the consignee copies of
the lorry receipts with other copies establish the falsification
of the documents. It is obvious that at the time of preparing
the lorry receipts a few portions were left unfilled. Columns in
consignee copies were subsequently filled and entries were
corrected. Question is, who made the additions in Ext.P4 and
other consignee copies of lorry receipts.
19. PW29 opined that the entire handwriting in Ext.P4
and other consignee copies were of accused No.4. The
allegation in that regard is that when nine words in the said
consignee copies alone were the addition, the query to the
handwriting expert should have been to examine those nine
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words. Instead, a wholesale comparison of writings in the
lorry receipts was queried to PW29. While examined in court it
was put to him also as to whether he examined the words
allegedly added, specifically. His answer was that he
compared the entire writings in the consignee copies.
20. Opinion of PW29 concerning the disputed writings
of accused No.4 is contained in paragraph No.5 of Ext.P253.
The reasons for arriving at such a finding is separately given
in Ext.P254. For a proper appreciation of the contention of
accused No.4 in this regard, the said reasons are extracted
below:
"Reasons for opinion as embodied in para 5.- My
opinion that the person who wrote the blue enclosed
writings stamped and marked S52 to S79 also wrote
the red enclosed writings similarly stamped and
marked Q29 to Q46, Q48 and Q49 is based on the
cumulative consideration of various similarities
occurring between the questioned and the specimen
writings both in individual writing habits as well as in
general writing habits along with commencement,
combination and terminations of various strokes and
parts of the strokes. The general writing habits of
movement, skill, slant, alignment, spacing relative size
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and proportions of letters, etc., are similar between the
questioned and the specimen writings. Line quality is
also free and smooth. Similarities have also been
observed in the minute and inconspicuous details of
formation of various characters of the questioned
writings when compared with the similar characters of
the specimen writings. Some of such similarities are:
Formation of 'r' along with the nature of twist at its
base and the extent of its finish, shape of the oval part
of 'a', formation of 'T' in two operations, hooked
commencement of 'C' along with the shape of its
curved part with similar variation, nature and location
of commencement of 'n' along with its movement and
the shape of its body part with similar variation,
straight nature of body part of 't', other variety of 't'
having loop in its body part and the nature of t-crossing
as observed in the questioned writings is also observed
in the specimen writings, peculiar formation of 'f' along
with the location of its commencement and the nature
of movement at the apex with similar variation,
formation of 'd' along with its movement and the shape
of its curved part, straight nature of body part of 'I',
formation of 'y' along with the shape of its upper
curved part, nature of twist at its apex and the
direction of its finish, peculiar formation of 'M' along
with its movement, formation of 'S' along with the
shape of its upper and lower curved parts, formation of
various letters along with their movement and their
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combinations in the words 'Nineteen', 'Thousand',
'Hundred', 'Nine', 'of', 'India', 'Kerala', 'Corporation',
'Kanjirapally', 'State Bank', 'Centrifuged', 'Thirty', 'and',
etc., as observed in the questioned writings is also
observed in the specimen writings with similar
variation, formation of figures '2', '6', '3', '9', '8', '5'
along with their movement is similarly observed both in
questioned and specimen writings. Similarities have
also been observed when the various characters of the
questioned signatures have been compared with the
similar characters of the specimen signatures. Nature
and location of commencement of the first character
appearing as 'K' along with its movement and the
shape of its curved part with similar variation,
formation of 'S' along with the shape of its upper and
lower curved parts, movement of 'R' along with the
shape of its curved part, formation of the next
character appearing as 'K' along with the shape of its
buckle part, formation of 'u' along with its movement,
formation of 't' along with the straight nature of its
body part and its extent, simplification of the terminal
character, nature of underscoring as observed in the
questioned signatures is also observed in the specimen
signatures with similar variation. All the characteristic
features as occurring in the questioned writings are
also exemplified in the specimen writings at one or the
other place with similar variation."
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21. It is pertinent to note that letters and words
forming part of the embellished words were specifically
examined by PW29, although there was no such pointed
query. The words 'nineteen', 'thousand', etc. are such words.
When the opinion was rendered after examining those words
allegedly added in the consignee copies also, the contention
that the en bloc examination of the writings belied credibility
of the opinion and caused prejudice to accused No. 4 cannot
be accepted.
22. As the manager and person in charge of
Kanjirappally Branch of TCI, accused No.4 alone could have
written the lorry receipts. This fact has been asserted by
PW21 as well. When the written text appeared in different
copies of the same lorry receipt vary, that indicates to the role
of accused No.4 in creation of false consignee copies. Such a
strong circumstance is corroborated by the opinion rendered
by PW29 that the handwritings in the lorry receipts were of
accused No.4. When such forged consignee copy lorry receipts
were used by accused Nos.2 and 3 for discounting the bills,
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conspiracy among them in the matter is quite clear. Viewed in
that perspective, Ext.D7 can be taken as a handiwork of
accused No.3.
23. Suffice it to say that a conspiracy takes place often
in secret. Time of its occurrence, the manner in which it
occurred and so on and so forth cannot ordinarily be proved
with positive evidence. The facts proved and circumstances
established in this case, in the light of the provisions of
Section 10 of the Evidence Act, are enough to establish that
accused Nos.2 to 4 were privies to the conspiracy. In the
above circumstances, the law laid down in Vijayachandran
K.K. and Yogarani (supra) that the opinion of an expert on
its own is not enough to convict a person is not available to
the help of accused No. 4.
24. Accused No.5 was implicated in this case for the
reason that all the nine consignments were in favour of the
concerns run by him. The concerns are M/s Mattress House
and M/s Premier Foam Industries, New Delhi. Seven
consignments were in the name of M/s Mattress House and
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the remaining two were in the name of M/s Premier Foam
Industries. There is evidence to show that accused No.5 was
the proprietor of M/s Mattress House. But there is no evidence
to show that he was the proprietor of M/s Premier Foam
Industries. Even if it is taken that the said concern also
belonged to accused No.5, the question still lingers is whether
the evidence is sufficient to establish that he connived in
creation of false documents and discounting the bills using
such fabricated documents.
25. A consignee can unilaterally be selected by the
consignor. Ordinarily, on the basis of a contract, a
consignment is sent. Here, however, the consignment itself is
shady and therefore such a normal inference is not possible.
The prosecution puts forward the circumstance that accused
No.5 requested Dena Bank, Alipore Branch for more time for
taking delivery of the consignments. Another circumstance
pointed out is that accused No.3 along with accused No.5
reached SBI Kottayam Branch and requested to re-sent the
bills in question to the Dena Bank. Although PW1 was cited to
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Crl.Appeal Nos.2544, 2545 and 2581 of 2009
prove that fact, she could not remember and say whether
accused No.5 was the person who came to her branch
requesting to re-sent the bills.
26. Ext.P134 is a fax message. It was allegedly sent by
accused No.5 concerning the consignments in question. He
denied sending any such fax message. Its authenticity was
not duly proved by the prosecution. Even accepting Ext.P134
as a message sent by accused No.5, that would not point to
his role in the conspiracy without some evidence indicating his
participation in the alleged act. Therefore, the evidence to
implicate accused No.5 with the transactions is quite scarce.
Solely because the consignments were sent to the firm owned
by accused No.5, his involvement in the conspiracy or in doing
the criminal act cannot be inferred. Nothing is in evidence to
show that he requested to send the consignments. So no
positive act on the part of accused No.5 in the defrauding act
of discounting bills and obtaining money from the SBI,
Kottayam branch could be proved beyond doubt. The findings
of the learned Special Judge leading to his conviction are thus
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Crl.Appeal Nos.2544, 2545 and 2581 of 2009
not based on any evidence, but based on inferences alone.
Hence, his conviction is unsustainable in law and is liable to
be set aside.
27. Resultantly, conviction of accused Nos.2 to 4 is
confirmed and accused No.5 is set aside. In regard to the
sentence, it is submitted by the learned counsel for accused
Nos.2 and 3 that the said accused are now aged and
bedridden. Hence, it is unjust to incarcerate them. Medical
certificates concerning their treatment have been made
available for my perusal also. Further, it is submitted that the
bank had realised the entire amount from them. Accordingly,
the learned counsel would plead for a lenient view in the
matter of their sentencing. As regards accused No.4 it is
submitted that having undergone the ordeal of the trial and
other proceedings this far, he is entitled for a lenient view.
Entire amount was appropriated by accused Nos.2 and 3 and
there is nothing to show that accused No.4 obtained any
pecuniary advantage. For that reason also he is entitled for
leniency.
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Crl.Appeal Nos.2544, 2545 and 2581 of 2009
28. Having considered the nature of the offence proved
to have been committed and the circumstances of accused
Nos.2 to 4 in detail, I am of the view that in the matter of
sentencing, a lenient view can be taken.
29. Accordingly, each of accused Nos.2 to 4 is
sentenced to undergo simple imprisonment for a period of
six months for the offence punishable under Sections 120B,
420 and 467 of the IPC; besides fine of Rs.25,000/- for each
of the said offences. The default sentence shall be simple
imprisonment for two months on each count. No separate
sentence is imposed under Sections 468 and 471 of the IPC.
The period of substantive sentence shall run concurrently.
Set off, if entitled, is allowed under Section 428 of the
Code.
Appeal No.2581 of 2009 is allowed and the appellant is
set at liberty. Appeal Nos. 2544 and 2545 of 2009 are allowed
in part to the above extent.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
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Crl.Appeal Nos.2544, 2545 and 2581 of 2009
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE CERTIFICATES
ISSUED TO THE 1ST APPELLANT DATED
15.11.2023
Annexure A2 THE TRUE COPY OF THE CERTIFICATE
ISSUED TO THE 2ND APPELLANT ON
15.11.2023
Annexure A3 THE TRUE COPY OF THE OPERATION NOTES
ISSUED BY THE ASTER MEDICITY KOCHI
DATED 21.06.2017
Annexure A4(a) A TRUE COPY OF THE ORDER DATED
23.01.2012 OF THE DEBT RECOVERY
TRIBUNAL (KERALA & LAKSHADWEEP) IN DRC
NO. 799 IN OA K-108/99
Annexure A4(b) A TRUE COPY OF THE ORDER DATED
13.09.2010 OF THE DEBT RECOVERY
TRIBUNAL (KERALA & LAKSHADWEEP) IN DRC
NO. 799 IN OA K-108/99
Annexure A4(c) A TRUE COPY OF THE ORDER DATED
19.01.2007 OF THE DEBT RECOVERY
TRIBUNAL (KERALA & LAKSHADWEEP) IN DRC
NO. 799 IN OA K-108/99
Annexure A4(d) A TRUE COPY OF THE ORDER
(RS.6,60,000/-) DATED 11.11.2003 OF
THE DEBT RECOVERY TRIBUNAL (KERALA &
LAKSHADWEEP) IN DRC NO. 1046 IN OA K-
Annexure A4(e) A TRUE COPY OF THE ORDER (RS.
12,90,000/-) DATED 11.11.2003 OF THE
DEBT RECOVERY TRIBUNAL (KERALA &
LAKSHADWEEP) IN DRC NO. 1046 IN OA K-
2025:KER:29135
Crl.Appeal Nos.2544, 2545 and 2581 of 2009
Annexure A4(f) A TRUE COPY OF THE ORDER (RS.
14,10,000/-) DATED 11.11.2003 OF THE
DEBT RECOVERY TRIBUNAL (KERALA &
LAKSHADWEEP) IN DRC NO. 1046 IN OA K-
