Kerala High Court
Saralakumari vs State Of Kerala on 25 August, 2025
2025:KER:64610
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A. BADHARUDEEN
MONDAY, THE 25TH DAY OF AUGUST 2025/3RD BHADRA, 1947
CRL.A NO.1088 OF 2010
AGAINST THE JUDGMENT DATED 28.05.2010 IN CC NO.37
OF 2009 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
KOTTAYAM
APPELLANT/2ND ACCUSED:
MANMADHAN
FORMER CASHIER ETTUMANOOR BRANCH,
KOTTAYAM CO-OPERATIVE URBAN, BANK),
S/O.K.R.KESAVAN NAIR, AKKADAMPALLIL HOUSE,
NEAR KANAKARI AMPALA KAVALA, KANAKARI,
KOTTAYAM.
BY ADV SRI.THOMAS T.VARGHESE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
REPRESENTING DY.S.P., VACB, KOTTAYAM.
SRI.RAJESH.A,SPECIAL PUBLIC PROSECUTOR, VACB
SMT.REKHA.S, SR.PUBLIC PROSECUTOR, VACB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11.08.2025, ALONG WITH CRL.A.1167/2010 AND 1216/2010,
THE COURT ON 11.08.2025 DELIVERED THE FOLLOWING:
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CRL.A.Nos.1088,1167 & 1216 of 2010
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.BADHARUDEEN
MONDAY, THE 25TH DAY OF AUGUST 2025/3RD BHADRA, 1947
CRL.A NO. 1167 OF 2010
AGAINST THE JUDGMENT DATED 28.05.2010 IN CC NO.37
OF 2009 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
KOTTAYAM
APPELLANT/3RD ACCUSED:
K.K.VINOD (FORMER PEON)
KOTTAYAM CO-OPERATIVE URBAN BANK,
ETTUMANOOR BRANCH, KAILAS HOUSE,
AYMANAM VILLAGE.
BY ADVS.
SHRI.A.N.RAJAN BABU
SMT.K.SUNITHA VINOD
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, COCHIN-16.
2 DEPUTY SUPERINTENDENT OF POLICE
V.A.C.B. UNIT, KOTTAYAM.
SRI.RAJESH A, SPECIAL PUBLIC PROSECUTOR
SMT.REKHA S, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11.08.2025 ALONG WITH CONNECTED CASES, THE COURT ON
25.08.2025 DELIVERED THE FOLLOWING:
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CRL.A.Nos.1088,1167 & 1216 of 2010
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 25TH DAY OF AUGUST 2025/3RD BHADRA, 1947
CRL.A NO. 1216 OF 2010
AGAINST THE JUDGMENT DATED 28.05.2010 IN CC NO.37
OF 2009 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
KOTTAYAM
APPELLANT/1ST ACCUSED:
SARALAKUMARI
(FORMER BRANCH MANAGER, KOTTAYAM CO-OPERATIVE
URBAN BANK, ETTUMANOOR BRANCH)
W/O.RAVINDRANATH, SAROJINI VIHAR,
THIRUNAKKARA WEST GATE, KOTTAYAM,
(NOW RESIDING AT, KUNNIRIKKAL HOUSE,
KODATHY PADY, KOTTAKKAL ARYA VAIDYA SALA
COLLEGE ROAD, RANNY, PATHANAMTHITTA.
BY ADV SHRI.T.R.HARIKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.RAJESH A, SPECIAL PUBLIC PROSECUTOR
SMT.REKHA S, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11.08.2025, ALONG WITH CRL.A.1088/2010 AND CONNECTED
CASE, THE COURT ON 25.08.2025 DELIVERED THE FOLLOWING:
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CRL.A.Nos.1088,1167 & 1216 of 2010
4
CR
COMMON JUDGMENT
Dated this the 25th day of August, 2025
These criminal appeals have been preferred by
accused Nos.1, 2 and 3 respectively, challenging judgment
dated 28.05.2010 in C.C.No.37/2009 on the files of the Court
of the Enquiry Commissioner and Special Judge, Kottayam.
2. Heard the learned counsel for the
appellants and the learned Public Prosecutor in detail. I have
gone through the trial court records and the decision placed
by the learned counsel for the 1st accused.
3. Here, the prosecution alleges commission
of offences punishable under Sections 13(1)(c) and (d) r/w
13(2) of the Prevention of Corruption Act, 1988 (hereinafter
referred to as 'the PC Act' for short) as well as under
Sections 409, 420, 468, 471, 477A and 120B of the Indian
Penal Code (hereinafter referred to as 'IPC' for short) by the
accused. The prosecution allegation is that the 1 st accused
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while working as Bank Manager, the 2 nd accused as cashier, and
the 3rd accused as peon in Kottayam Co-operative Bank,
Ettumanoor branch, being public servants, abused their official
position, hatched conspiracy between them and in furtherance of
the said conspiracy, they dishonestly and fraudulently
misappropriated Rs.47,100/- by forging and falsifying the records
of the bank pertaining to loan No.DCL 603 in the name of one
Sibi Jose.
4. On getting final report in this matter, the
learned Special Judge took cognizance for the said offences
and proceeded with trial. During trial, PW1 to PW16 were
examined and Exts.P1 to P26 except Exts.P7(m) & (n) were
marked. Even though, the accused was given opportunity to
adduce defence evidence after questioning him under Section
313(1)(b) of the Code of Criminal Procedure, he did not opt to
adduce any defence evidence.
5. Evaluating the evidence, the Special Court
convicted the accused for the said offences and sentenced them
as under:
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"31. From the finding in point Nos.1
to 3 it follows that the 1st and 2nd accused
committed offences under Sec.13(2) r/w 13(1)(c)
of the Prevention of Corruption Act and Sec.409
IPC. It can also be said that they obtained
Rs.47,100/- by illegal means and so they are
guilty of the offence under Sec.13(2) r/w 13(1)(d)
of the Prevention of Corruption Act. Accused
Nos.1 to 3 are guilty of the offences under
are guilty of the offence under Sec.477A I.P.C. 3 rd
accused is guilty of the offence under Sec.120-B
I.P.C. r/w Sec.13(2) of the Prevention of
Corruption Act and Sec.120-B I.P.C. r/w.Sec.409
I.P.C. They are convicted for the aforesaid
offences."
6. According to the learned counsel for the 1 st
accused, in this case, the prosecution case rests on the
allegation that the 1st accused signed the loan application in
the name of PW8 after forging and falsifying the same.
Similarly, the case of the 2 nd accused is that he also written in
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the application and connected records. The allegation
against the 3rd accused, who is a peon, is also similar to that
of the 2nd accused. According to the learned counsel for the
1st accused, the case put up by the 1 st accused is that, PW8
availed loan of Rs.50,000/- on 10.09.2001 and thereafter, the
said loan was closed by repaying Rs.35,800/- and upon his
application, Ext.P7 series, again, loan of Rs.50,000/- was
granted as per DCL 603. But PW8 failed to repay the same.
According to the learned counsel for the 1 st accused, during
departmental proceedings, the 1st accused repaid the entire
amount. The prime point argued by the learned counsel for
accused Nos.1 to 3 is that the prosecution allegation as
against falsification of the application and the corresponding
documents, marked as Exts.P7(e) loan application pertaining
to DCL 603, Ext.P7(i) the receipt pertaining to DCL 603,
Ext.P7(j) promissory note dated 10.01.2003 in connection
with DCL 603 and Ext.P7(g) loan bond dated 10.01.2003 in
DCL 603 were not put by PW8 and the sureties also denied
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CRL.A.Nos.1088,1167 & 1216 of 2010
their signatures, who were examined as PW9 and PW10.
According to the learned counsel, in order to prove the fact
that the handwriting and the signatures of PW8, PW9 and
PW10 are not therein in Ext.P7(e) (i) (j) and (g), the
prosecution relied on the evidence of PW2 and PW3 on the
assertion that they had familiarity with their handwriting and
signatures. According to the learned counsel for the accused,
on perusal of the evidence of PW2 and PW3, what they
stated was that they had worked along with accused Nos.1 to
3 and they were familiar with their signatures. They did not
state anything that how they came to have familiarity with the
handwriting and signatures. According to the learned counsel
for the accused, in order to prove the handwriting under
Section 47 of the Indian Evidence Act, 1872 (hereinafter
referred to as 'the Evidence Act'), the Court has to form an
opinion as to the person by whom any document was written
or signed, the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to be
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CRL.A.Nos.1088,1167 & 1216 of 2010
written or signed that it was or was not written or signed by
that person, is a relevant fact.
Explanation to Section 47 provides how person is said to be
acquainted with the handwriting of another person by
explaining the three modalities for the same. The
explanation to Section 47 provides that a person is said to be
acquainted with the handwriting of another person when he
has seen that person write, or when he has received
documents purporting to be written by that person in answer
to documents written by himself or under his authority and
addressed to that person, or when, in the ordinary course of
business, documents purporting to be written by that person
have been habitually submitted to him.
7. On perusal of the explanation, the opinion of the
court in the matter of handwriting, based on the evidence
given by a person acquainted with the handwriting of the
person whose handwriting is sought to be proved, the person
giving evidence regarding the acquaintance should have
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familiarity with one among the three modalities mentioned in
explanation to Section 47, they are,
(1) Who has seen that person writes;
(2) or who has received documents written by that person in
answer to documents written by himself or under his
authority and addressed to that person or;
(3) who has in the ordinary course of business receives
documents written by that person or such documents
are habitually submitted to him.
8. The learned counsel for the 1st accused
placed decision of this Court in S.Sivadas V. State of
Kerala, reported in 2023 LiveLaw (Ker) 57, where the mode
of proof under Section 47 of the Evidence Act, with reference
to its explanation has been extracted by this Court, wherein
this Court relied on the decision of the Apex Court in B.
Raghuvir Acharya v. Central Bureau of Investigation,
reported in (2014) 14 SCC 693 and Hema v. State Through
Inspector of Police, Madras reported in (2013) 10 SCC 192
and other decisions and finally in paragraph No.21 this Court
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held that a person gets an opportunity to get acquainted with
the handwriting of another person when he has often seen that
person writing something, or when he has been receiving
papers written by that person in reply to his own drafts or for
the purpose of typing, filing, or advising. The mandate of
Section 47 is that the opinion of such a person can be relied
upon. In the present case, the witnesses relied on by the court
below only stated that as they had worked with the accused in
the same office, they could identify their signatures and
writings. Highlighting the legal position, as espoused
hereinabove, the learned counsel for accused Nos.1 to 3
canvassed acquittal, mainly urging that the prosecution failed
to prove the offences alleged against the accused beyond
reasonable doubt and the prosecution evidence leaves many
doubts to disbelieve the prosecution case.
9. The learned Public Prosecutor opposed the
contention and submitted that since PW2 and PW3 had given
evidence to the effect that they were acquainted with the
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handwriting of accused Nos.1 to 3. That by itself would
suffice the requirement of explanation to Section 47 of the
Evidence Act. The learned Public Prosecutor placed decision
of this Court in Vijayakumar K. v. State of Kerala, reported
in 2016 KHC 635, with reference to paragraph No.115. In the
above judgment also, this Court considered how Section 47
would apply when the court has to confirm the opinion as to
the handwriting of the person in the document, and in
paragraph Nos.116 to 119, this Court observed as under:
"116. In the decision reported in
Pasupuletti Venkamma v. Shaik Hamid Minor by
Next Friend Pier Sarn Bibee (14 Indian cases
741), it has been held that comparison of signature
is one of the modes of proving handwriting and
although when there is no such evidence such proof
would be regarded as a hazardous and
inconclusive, it cannot be regarded as an error in
law to base the conclusion on such proof alone and
a court of second appeal would have no power to
set aside a finding based on such comparison.
117. The England Law on this point is then
summarised by Tylor on Evidence (vol.2, Edn.12
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CRL.A.Nos.1088,1167 & 1216 of 2010
para 1863 at page 1151) "the witness need not state
in the first instance how he know the handwriting
since it is the duty of the opposite party to explore in
cross examination the source of knowledge if he is
dissatisfied with the testimony as it stands".
118. This is what is reiterated in section 47
of the Evidence Act. This has been stated so in
Pusaram and others v. Manmal and other (AIR
1955 RAJASTHAN 186) relying on the decision in
Chintaman Raoji Naik v. Khanderao Pandurang
Thakur and others (AIR 1928 Bombay 58) and
Mahanth Jagdish Das and others v. Emperor
(AIR 1938 Pat 497). The same view has been again
reiterated in the decision reported in Shriniwas
Pansari v. Dr. Hari Prasad Mehra and other (AIR
1983 PATNA 321).
119. The mode of proving the signature
and the handwriting is not only by sending it to the
expert alone but that can be done by proving
through the person, who had written the same or
persons having acquaintance with the handwriting
and signature of that person and by court invoking
the power under section 73 of the Evidence Act. In
this case, the court below had compared the same
and come to an independent conclusion regarding
this aspect and this was corroborated by the
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evidence of Pws 4, 7, 8, 30 and 31 the officials
working in the same office along with the accused
who had the opportunity to come across the
handwriting and signature of the accused and
acquaintance with the same and competent to
speak about the same. So not sending the vouchers
for expert opinion is not fatal in this case."
10. In view of the rival submissions, the points
arise for consideration are;
1. Whether the special court went wrong in holding
that the accused committed offence punishable
under Section 13(1)(c) r/w 13(2) of the PC Act?
2. Whether the special court went wrong in holding
that the accused committed offence punishable
under Section 13(1)(d) r/w 13(2) of the PC Act?
3. Whether the special court went wrong in holding
that the accused committed offence punishable
under Section 409 of IPC?
4. Whether the special court went wrong in holding
that the accused committed offence punishable
under Section 420 of IPC?
5. Whether the special court went wrong in holding
that the accused committed offence punishable
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under Section 468 of IPC?
6. Whether the special court went wrong in holding
that the accused committed offence punishable
under Section 471 of IPC?
7. Whether the special court went wrong in holding
that the accused committed offence punishable
under Section 477A of IPC?
8. Whether the special court went wrong in holding
that the accused committed offence punishable
under Section 120B of IPC?
9. Whether the verdict under challenge would
require any interference by this Court?
10. Orders to be passed.
11. The crux of the prosecution case is that PW8
initially availed a loan of Rs.25,000/-, but the same was falsely
recorded as Rs.50,000/-, on undertaking to repay the same
within a period of 300 working days and the loan number is
DCL 246. The further allegation is that, on 10.01.2003,
Rs.50,000/- was sanctioned as per loan No.DCL 603 after
closing DCL 246 on 09.01.2003. The prosecution case is that
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as regards the availing of loan of Rs.25,000/-, there was
manipulation of the amount by doubling the amount as
Rs.50,000/- and the second loan bearing loan No.DCL 603,
was obtained in between accused Nos.1 to 3, after hatching
conspiracy, by creating false documents viz., Ext.P7(e) (i) (j)
and (g). The evidence of PW2 and PW3 are relied on by the
prosecution to prove the handwriting of accused Nos.2 and 3.
12. PW2 gave evidence that he was familiar
with the accused who worked along with him and he worked
as Branch Manager of Ettumanoor, Kottayam Co-operative
Bank, Ettumanoor from 13.08.2003. Accordingly, he became
aware of the misappropriation done by the accused. He
supported Ext.P7(a) passbook, showing Rs.25,000/- as the
loan granted to PW8 and Exts.P7(b), the voucher showing
the loan amount as Rs.50,000/-. He also supported
Ext.P7(c), the certified copy of the ledger and Ext.P7(d), the
application put up by PW8 to join the society. According to
him, the loan application allegedly submitted by PW8 to
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obtain Loan No. DCL 603 is Ext. P7(e), and the signature on it
differs from his signature in Ext. P7(d). According to him,
Ext.P7(f) is the voucher pertaining to loan No.DCL 603 and the
same was written by the 2nd accused, Sri.Manmadhan.
13. PW3 also was examined to prove that the
loan application, voucher and other documents etc. pertaining
to DCL 603 were forged and falsified by the accused, as part of
conspiracy hatched in between them. PW3 deposed that, he
worked as clerk in Co-operative Urban Bank, Kottayam from
02.06.2003 and he was familiar with the accused at the dock.
Accordingly, he also worked along with him and he was familiar
with the handwriting and the signatures of accused. He
identified the signature in Ext. P7(a) as that of the 2nd accused,
who was otherwise known as Madhu in the office. He also
identified the handwriting of Manmadhan (the 2nd accused) in
Ext. P7(b) and Ext. P7(f) vouchers. According to PW3, the
address in Ext.P7(e) loan application was written by the 2 nd
accused and the remaining portion was filled up by the 3 rd
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accused. He also deposed that in Ext.P7(i) receipt, the date,
month and year were filled up by the 2nd accused and the
remaining portion were filled up by the 3rd accused. Regarding
Ext.P7(g) and Ext.P7(j), PW2 stated that those were entries
made by Sri.Vinod, who is the 3rd accused. As per the
prosecution allegations, because of the falsification of records
and grant of loan by using the said forged and false document
as genuine, the bank sustained a loss of Rs.47,100/-.
According to the accused, the same were repaid, inclusive of
the amount in connected cases where similar allegations were
raised.
14. While addressing the question as to whether
the evidence of PW2 and PW3 would satisfy the requirements
of explanation to Section 47 regarding the proof of handwriting
and signatures, it is relevant to note that, as already observed,
a person, who acquainted with the handwriting of another
person, was examined in prosecution to prove the same, his
evidence must be by deposing the manner in which he made
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acquaintance with the handwriting or the signatures by the 3
modes provided in explanation to Section 47. They are, (1)
Who has seen that person writes; (2)or who has received
documents written by that person in answer to documents
written by himself or under his authority and addressed to that
person or; (3) who has in the ordinary course of business
receives documents written by that person or such documents
are habitually submitted to him. In the instant case, no such
evidence forthcoming.
15. It is pointed out by the learned Public
Prosecutor that, in this case, internal audits were conducted by
PW5 and PW8 and their evidence and the respective reports
marked as Exts.P1 and P15, would also throw light to the fact
that there was manipulation of records in passing and
disbursing of loan to the tune of Rs.50,000/- as loan No.DCL
603 after closing the previous loan as per loan No.DCL 246 on
09.01.2003 by repaying of Rs.35,900/-. When the evidence of
PW5 is gone through, PW5 deposed as contended by the
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learned Public Prosecutor but at the later stage of his evidence,
he stated that during his inspection, it was found that on
verification of passbook retained by PW8, after 10.01.2003
also, Rs.850/- is shown as the balance and the customer had
denied the availing of loan No.DCL 603.
16. In this case, PW8 is the person who initially
availed loan No.DCL 246 and according to him, the loan
availed by him was only Rs.25,000/- and his passbook also
would show the same. But the records discussed herein above
would show that the loan was Rs.50,000/- instead of
Rs.25,000/-. As regards the filing of loan application and the
signatures in the voucher and receipt etc. pertaining to loan
No.DCL 604, PW8 categorically denied his signatures and filing
up of the application. Similarly, PW9 and PW10, who are
sureties of the said loan, also emphatically denied their
signatures as sureties. According to the learned counsel for the
accused, mere denial of the debtor as well as the sureties to
the effect that they did not file any application or sign the
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documents would not by itself is insufficient to find that they did
not file loan application or sign the documents without the aid of
an expert opinion. According to the learned counsel for the
accused, similarly, merely relying on the evidence of PW2 and
PW3 which would not strictly adhere to the explanation to
Section 47 of the Evidence Act would by itself is insufficient to
hold that handwriting in the loan application and other
documents alleged to be that of PW8 were made by accused
Nos.2 and 3 without the support of an expert opinion or the 1st
accused involved in this crime.
17. It is well settled law that in order to prove
signature and handwriting, it may not be always necessary to
get opinion evidence of an expert, though the same is one
among the modes prescribed for the same by way of
corroborative evidence. The second mode is the mode
provided by proving the handwriting and signature with that of a
person, who had acquaintance with the handwriting and
signature of the person who disputed it or not available and for
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which, conditions (1) to (3) in explanation to Section 47 to be
necessary. The third mode is one provided under Section 73 of
the Evidence Act, allowing the court itself to compare the
signatures and form an opinion.
18. In the instant case, Section 73 of the
Evidence Act was not applied by the trial court may be for want
of comparison of the disputed documents with admitted
documents. and the mode adopted by the prosecution to prove
that the signatures as well as the handwriting in the disputed
loan application, vouchers and receipts etc. were entered by
accused Nos.1 to 3 is by examining PW2 and PW3 who are
familiar with the handwriting and signatures.
19. When the prosecution relies on the disputed
handwriting of a person by examining those who are familiar
with the handwriting and signatures, definitely three ingredients
viz., (1) Who has seen that person writes; (2)or who has
received documents written by that person in answer to
documents written by himself or under his authority and
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addressed to that person or; (3) who has in the ordinary course
of business receives documents written by that person or such
documents are habitually submitted to him should be satisfied
and without satisfying the ingredients, mere identification of the
disputed signature and handwriting of a person merely saying
that they are familiar with same would not suffice the
requirement.
20 When analysing the allegation on par with the
evidence tendered, in the instant case, the prosecution failed to
prove that the signatures and handwriting in the disputed loan
application, vouchers and the receipts were the handwriting of
accused Nos.1 to 3 by the mode known to law. If so, without
any iota of doubt, it has to be held that the prosecution
miserably failed to prove the said aspect, though the Special
Court relied on the evidence of PW2 and PW3 to find
commission of the offences by accused Nos.1 to 3. Since the
prosecution evidence is not sufficient to establish the guilt of
the accused, it could not be held that accused Nos.1 to 3
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forged the documents, availed loan and misappropriated an
amount of Rs.47,100/- as per loan No.DCL 603 in the name of
one Sibi Jose. Since the prosecution evidence is in the midst of
doubt, as discussed hereinabove, by enlarging the benefit of
doubt, I am inclined to hold that the prosecution failed to prove
the allegations against accused Nos. 1 to 3 beyond reasonable
doubt and accused Nos.1 and 3 are entitled to get the benefit
of doubt. Consequently, the conviction and sentence are liable
to be set aside.
21. In the result, this appeal stands allowed and
conviction and sentence imposed by the special court impugned
herein stand set aside. Accused Nos.1 to 3/appellant are set at
liberty forthwith. The bail bonds of accused Nos.1 to 3 stand
cancelled.
Registry is directed to forward a copy of this common
judgment to the special court forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
