[Cites 28, Cited by 0]
Kerala High Court
Sasikumar vs State Of Kerala on 15 December, 2025
2025:KER:85811
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 24TH DAY OF NOVEMBER 2025 / 3RD AGRAHAYANA,
1947
CRL.A NO. 423 OF 2016
AGAINST THE JUDGMENT DATED 28.04.2016 IN CC NO.30 OF
2009 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/2ND ACCUSED:
C.SASIDHARAN NAIR
FORMERLY HEAD CLERK,THIRUVANANTHAPURAM SERVICE
CO-OPERATIVE BANK, HEAD OFFICE
BRANCH,THIRUVANANTHAPURAM.
BY ADV SRI.SUMAN CHAKRAVARTHY
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM-682031.
SPECIAL PUBLIC PROSECUTOR SRI RAJESH.A, FOR VACB
SENIOR PUBLIC PROSECUTOR SMT.REKHA.S, FOR VACB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.11.2025, ALONG WITH CRL.A.NOs.458/2016, 470/2016 AND
471/2016, THE COURT ON 15.12.2025 DELIVERED THE FOLLOWING:
2025:KER:90041
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 24TH DAY OF NOVEMBER 2025 / 3RD AGRAHAYANA, 1947
CRL.A NO. 458 OF 2016
CRIME NO.10/1999 OF VACB, THIRUVANANTHAPURAM,
AGAINST THE JUDGMENT DATED 28.04.2016 IN CC NO.32 OF
2009 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/2ND ACCUSED:
C.SASIDHARAN NAIR
FORMERLY HEAD CLERK,
THIRUVANANTHAPURAM SERVICE CO-OPERATIVE BANK,
HEAD OFFICE BRANCH,THIRUVANANTHAPURAM.
SRI.SUMAN CHAKRAVARTHY
SRI.P.G.RAJAGOPALAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM-682 031.
SPECIAL PUBLIC PROSECUTOR SRI RAJESH.A, FOR VACB
SENIOR PUBLIC PROSECUTOR SMT.REKHA.S, FOR VACB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.11.2025, ALONG WITH CRL.A.NOs.423/2016, 470/2016 AND
471/2016, THE COURT ON 15.12.2025 DELIVERED THE FOLLOWING:
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CRL.A No.423/2016 and con. cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 24TH DAY OF NOVEMBER 2025 / 3RD AGRAHAYANA, 1947
CRL.A NO. 470 OF 2016
AGAINST THE JUDGMENT DATED 28.04.2016 IN CC NO.30 OF
2009 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.1:
P.SASIKUMAR,
(FORMERLY SECRETARY, THIRUVANANTHAPURAM SERVICE CO-
OPERATIVE BANK), BHARATHEEYAM, TC 21/542,
PALLITHANAM, KARAMANA P.O., THIRUVANANTHAPURAM.
ANANTH KRISHNA K.S. (STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
SPECIAL PUBLIC PROSECUTOR SRI RAJESH.A, FOR VACB
SENIOR PUBLIC PROSECUTOR SMT.REKHA.S, FOR VACB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.11.2025, ALONG WITH CRL.A.NOs.423/2016, 458/2016 AND
471/2016, THE COURT ON 15.12.2025 DELIVERED THE FOLLOWING:
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CRL.A No.423/2016 and con. cases
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 24TH DAY OF NOVEMBER 2025 / 3RD AGRAHAYANA, 1947
CRL.A NO. 471 OF 2016
CRIME NO.10/1999 OF VACB, THIRUVANANTHAPURAM,
Thiruvananthapuram
AGAINST THE JUDGMENT DATED 28.04.2016 IN CC NO.32 OF
2009 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.1:
P.SASIKUMAR,
(FORMERLY SECRETARY, THIRUVANANTHAPURAM SERVICE CO-
OPERATIVE BANK), BHARATHEEYAM, TC
21/542,PALLITHANAM, KARAMANA P.O.,
THIRUVANANTHAPURAM.
ANANTH KRISHNA K.S. (STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
SPECIAL PUBLIC PROSECUTOR SRI RAJESH.A, FOR VACB
SENIOR PUBLIC PROSECUTOR SMT.REKHA.S, FOR VACB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.11.2025, ALONG WITH CRL.A.NOs.423/2016, 458/2016 AND
470/2016, THE COURT ON 15.12.2025 DELIVERED THE FOLLOWING:
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5
"C.R"
JUDGMENT
Dated this the 15th day of December, 2025
These criminal appeals have been filed under Section 374 of the
Code of Criminal Procedure, 1973, (hereinafter referred to as 'Cr.P.C.' for
short). Crl.A. Nos.423/2016 & 458/2016 have been filed at the instance
of one Sri.C.Sasidharan Nair, who is accused No.2, and Crl.A.
Nos.470/2016 & 471/2016 have been filed at the instance of one
Sri.Sasikumar, who is accused No.1, in C.C. Nos.30/2009 & 32/2009 on
the files of the Enquiry Commissioner and Special Judge,
Thiruvananthapuram (hereinafter referred to as 'Special Court' for short)
challenging the verdict of conviction and sentence dated 28.04.2016 in
the above cases. The sole respondent in all these appeals is the State of
Kerala represented by VACB. C.C. Nos.30/2009 & 32/2009 were jointly
tried by the learned Special Judge and rendered a common verdict on
28.04.2016.
2. Heard Adv.Suman Chakravarthy, the learned counsel
appearing for the appellant/accused No.2 in Crl.A. Nos.423/2016 and
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458/2016 and Sri.Ananth Krishna K.S. who was appointed as State Brief
for the appellant/accused No.1 in Crl.A. Nos.470/2016 & 471/2016, since
the counsel who filed these appeals had relinquished his engagement, as
well as the learned Special Public Prosecutor in detail. Perused the
common verdict impugned and the records of the Special Court.
3. The prosecution case in C.C. No.30/2009 is that the first and
second accused being public servants, employed as Secretary and Senior
Clerk respectively in Thiruvananthapuram Service Co-operative Bank
Ltd. No.T-131, Head Office Branch, Thiruvananthapuram during the
period from 19th December 1994 and 7th January 1995 hatched criminal
conspiracy along with P.K. Manoharan (no more) and G.Sreekumari who
were working as Clerk and Assistant Secretary respectively in the
aforesaid Co-operative Bank during the same period and thereby abused
their official position and misappropriated amounts from the Bank. It is
alleged that in pursuance of the above referred conspiracy, accused
dishonestly and fraudulently misappropriated an amount of Rs.30,000/-,
that is, Rs.10,000/- on 19.12.1994 by availing secured loan No.280 and
Rs.10,000/- each on 07.01.1995 by availing secured loan Nos. 287 and
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288 on the security of the Fixed Deposit (FD) No.173/94-95 deposited in
the name of one Mr.S.R.Anilkumar by forging the signatures of the above
said depositor in the loan application forms, loan bonds, loan vouchers
etc. without the knowledge or consent of the depositor, and used such
forged documents as genuine for availing the said loans and after that the
accused persons released the total amount covered by the above referred
Fixed Deposit to the depositor with interest without realizing the loan
amount, which resulted the loan amount in secured loan Nos. 280 and 287
to be outstanding and thereby cheated the Bank and obtained undue
pecuniary advantage to the tune of Rs.30,000/- and thereby committed the
offences under Section 13(1)(c) and (d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act,
1988' for short) and Sections 420, 468, 471 and 120-B of the Indian Penal
Code (hereinafter referred to as 'IPC' for short).
4. The prosecution case in C.C. No.32/2009 is that the first and
second accused being public servants, employed as Secretary and Senior
Clerk respectively in Thiruvananthapuram Service Co-operative Bank
Ltd. No.T-131, Head Office Branch, Thiruvananthapuram during the year
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1994 to 1998 abused their official position and entered into a criminal
conspiracy with P.K.Manoharan (no more) who was working as Clerk in
the said Co-operative Bank during the same period and in pursuance of
the conspiracy, accused Nos.1 and 2 along with above referred deceased
P.K.Manoharan dishonestly and fraudulently misappropriated an amount
of Rs.50,000/- from the Bank on 22.11.1995 by availing secured loan
No.480 in the security of the Fixed Deposit (FD) No.201/95-96 deposited
in the name of one Mr.S.R.Anilkumar and the said amount was credited
to the Savings Bank account of the deceased P.K.Manoharan by forging
the signature of the above said S.R.Anilkumar in the loan application
form etc. without the knowledge or consent of the depositor and used
such forged documents as genuine for availing the above said loan and
after that released the total amount covered by the above referred Fixed
Deposit to the depositor without realizing the loan amount, which
resulted the loan amount to be outstanding and obtained undue pecuniary
advantage to the tune of Rs.50,000/- and thereby committed the offences
under Section 13(1)(c) and (d) read with Section 13(2) of the PC Act,
1988 and Sections 420, 468, 471 and 120-B of the IPC.
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5. The Special Court framed charges for the said offences and
tried the cases jointly. During trial, PW1 to PW8 were examined and
Exts.P1 to P36 were marked on the side of the prosecution. Exts.D1 to D7
were marked on the side of the defence.
6. The Special Court on appraisal of the evidence found that the
appellants committed offences punishable under Section 13(1)(c) and (d)
read with Section 13(2) of the PC Act, 1988 and under Sections 465, 471
and 120-B of the IPC and accordingly they were convicted and sentenced
as under:
"......... For the offences under S.13(1)(c) r/w S.13(2) of
PC Act, 1988, in both the cases, Al and A2 are sentenced
to undergo simple imprisonment for one year and to pay a
fine of Rs.5,000/- (Rupees Five Thousand only) each.
Fine, if not paid, they shall undergo simple imprisonment
for a further period of three months in each cases. For the
offences under S.13(1)(d) r/w S.13(2) of PC Act, 1988 also
in both the cases, Al and A2 are sentenced to undergo
simple imprisonment for one year and to pay a fine of
Rs.5,000/- (Rupees Five Thousand only) each. Fine, if not
paid, they shall undergo simple imprisonment for a further
period of three months in each cases. For the offence
under Ss.465, 471 and 120-B of IPC in both the cases, Al
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and A2 are sentenced to undergo simple imprisonment for
six months each.
The substantive sentences awarded to A1 and A2
shall run concurrently in each cases.
Considering the facts and circumstances of the
cases at hand, I hereby direct under S.427 Cr.P.C. that the
substantive sentences passed in C.C.32/2009 shall run
concurrently with the substantive sentences passed in C.C.
30/2009 "
7. The learned counsel appearing for the 2nd accused in both the
cases vehemently argued that in so far as the commission of forgery by
the 2nd accused is concerned, the prosecution failed to adduce any
evidence. According to him, proof of commission of forgery is absolutely
essential to fasten criminal culpability on the 2 nd accused for an offence
under Section 468 of IPC. In this regard, the learned counsel for the 2 nd
accused placed a decision of the Apex Court reported in (2025 SCC
OnLine SC 1954), Vandana v. State of Maharashtra, with reference to
paragraph No.7 where it was held as under:
"7. It is apposite to note that to attract offence of Section
468 IPC, the prosecution must establish that the accused
made a false document within the meaning of Section 464
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IPC, with intent to cheat. Likewise, Section 471 IPC
requires proof that the accused used a forged document as
genuine, knowing or having reason to believe it to be
forged at the time of its use"
8. The learned counsel also placed another decision of the Apex
Court reported in [(2024) 9 SCC 164], Central Bureau of Investigation
v. Dilip Mulani with reference to paragraph No.16 to contend that bald
allegations of participation in the conspiracy alone without giving any
details would not be sufficient to prima facie establish that the accused
was also involved in the conspiracy.
9. According to the learned counsel for the 2nd accused in these
matters, merely relying on some entries made by the 2 nd accused in
Exts.P3 series, P7 series, P8 series and P9 series and the omission on the
part of the 2nd accused to note the relevant particulars in the FD receipts
in the name of Sri.S.R. Anilkumar, he was found guilty on the basis of
surmises and conjectures. Therefore, the conviction and sentence would
not sustain in the eye of law and the same would require reversal.
10. Adv.Ananth Krishna K.S. State Brief appearing for the 1 st
accused argued that since the date of commission of the offences alleged
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in these cases are on 19.12.1994 and 22.11.1995, that is, within one year,
the Special Court ought to have considered these cases as one and
imposed only one sentence in respect of the two occurrences. The learned
counsel also pointed out that the Special Court relied on documents
produced by Smt.G.Sreekumari, a co-accused, to find out commission of
offence by the 1st accused though the said evidence could not be acted
upon by the learned Special Judge. According to him, specific charge
was laid against Smt.G.Sreekumari alleging commission of IPC offences
in this occurrence, since she could not be prosecuted for the PC Act
offences for want of sanction under Section 19(1) of the PC Act, which
was refused by the competent authority. Therefore, he pressed for
interference in the verdict impugned. According to the State Brief, in this
case, in the event of confirming the conviction and in the matter of
sentence, the benefit of Section 427 of Cr.P.C. would be given to the
accused to suffer the sentences concurrently. In this connection, the
learned counsel relied on the decision of the Apex Court reported in
[2013 (3) KHC 34] Bansal V.K. v. State of Haryana, wherein in
paragraph No.10, the Apex Court held as under:
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" 10. We are in the case at hand concerned more with the
nature of power available to the Court under Section
427(1) of the Code, which in our opinion stipulates a
general rule to be followed except in three situations, one
falling under the proviso to sub-section (1) to Section 427,
the second falling under sub-section (2) thereof and the
third where the Court directs that the sentences shall run
concurrently. It is manifest where Section 427(1) that the
Court has the power and the discretion to issue a direction
but in the very nature of the power so conferred upon the
Court the discretionary power shall have to be exercised
along judicial lines and not in a mechanical, wooden or
pedantic manner. It is difficult to lay down any strait
jacket approach in the matter of exercise of such
discretion by the Courts. There is no cut and dried formula
for the Court to follow in the matter of issue or refusal of a
direction within the contemplation of Section 427(1).
Whether or not a direction ought to be issued in a given
case would depend upon the nature of the offence or
offences committed, and the fact situation in which the
question of concurrent running of the sentences arises.
High Courts in this country have, therefore, invoked and
exercised their discretion to issue directions for
concurrent running of sentence as much as they have
declined such benefit to the prisoners. For instance a
direction for concurrent running of the sentence has been
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declined by the Gujarat High Court in Sumlo @ Sumla
Himla Bhuriya and Others v. State of Gujarat and Others,
2007 KHC 6116 : 2007 CriLJ 634 that related to
commission of offences at three different places resulting
in three different prosecutions before three different
Courts. The High Court observed: "The rule of 'single
transaction' even if stretched to any extent will not bring
the cases aforesaid under the umbrella of 'single
transaction' rule and therefore, this application fails. The
application is rejected."
11. In the said case, the Apex Court allowed the accused therein
involved in multiple offences under Section 138 of the Negotiable
Instruments Act (hereinafter referred to as 'NI Act' for short) to suffer the
sentence concurrently.
12. The learned Special Public Prosecutor vehemently supported
the verdict of the Special Court and submitted that the evidence available
would suggest the involvement of accused Nos.1 and 2 in this case and
the prosecution evidence substantially proved the offences alleged against
the accused and thus no interference in the common verdict is warranted.
13. Having addressed the rival contentions, the points arise for
consideration are :
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1). Whether the Special Court went wrong in finding that
accused Nos.1 and 2 committed offence punishable under
Section 465 read with 120-B of IPC in C.C. No.30/2009
and C.C. No.32/2009?
2). Whether the Special Court went wrong in finding that the
accused committed offence punishable under Section 471
read with 120-B of IPC in C.C. No.30/2009 and C.C.
No.32/2009?
3). Whether the Special Court is justified in finding that
accused Nos.1 and 2 committed offences punishable under
Section 120B of IPC in C.C. No.30/2009 and C.C.
No.32/2009?
4) Whether the Special Court is justified in finding that
accused Nos.1 and 2 committed offences punishable under
Section 13(1)(c) read with Section 13(2) of P.C. Act, 1988
in C.C. No.30/2009 and C.C. No.32/2009?
5). Is it correct to say that the Special Court rightly entered
into the conviction of accused Nos.1 and 2 on the finding
that they had committed offences punishable under
Section13(1)(d) read with Section 13(2) of P.C. Act, 1988
in C.C. No.30/2009 and C.C. No.32/2009?
6). Any interference is required in the common verdict
impugned?
7). The order to be passed?
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Point Nos.1 to 7
14. The prosecution case in C.C. No.30/2009 is that accused
Nos.1 and 2 who were employed as Secretary and Senior Clerk
respectively in Thiruvananthapuram Service Co-operative Bank Ltd., the
Head Office Branch, during the period between 19.12.1994 and
07.01.1995 hatched criminal conspiracy along with one P.K. Manoharan
(now no more) and G.Sreekumari, who were working as Clerk and
Assistant Secretary respectively in the same Bank, during the relevant
period abused their position and fraudulently misappropriated
Rs.30,000/-, that is, Rs.10,000/- on 19.12.1994 by availing secured loan
No.280 and Rs.10,000/- each on 07.01.1995 by availing secured loan
Nos.287 and 288 based on the security of the Fixed Deposit receipt
No.173/94-95 deposited in the name of one S.R. Anilkumar by forging
the signatures of the above said S.R. Anilkumar in the loan application
forms, loan bonds, loan vouchers etc. without the knowledge and consent
of the depositor and used the said forged documents as genuine and
thereby misappropriated Rs.30,000/- by themselves. In C.C. No.32/2009
in the same line misappropriation of Rs.50,000/- was alleged.
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15. As regards the employment of accused Nos.1 and 2 as
Secretary and Senior Clerk of Thiruvananthapuram Service Co-operative
Bank, during the period of occurrence, Ext.P13 attendance register and
Ext.P13(a), the relevant page of the attendance register have been
tendered in evidence by the prosecution through PW1 to substantiate their
official position. In fact, no dispute raised by accused as regards their
official positions during the relevant period, as alleged by the
prosecution. That apart, Exts.P18 and P19 service books of accused Nos.1
and 2 also tendered in evidence through PW2 to justify the same. Thus
the prosecution successfully proved the status of accused Nos.1 and 2 as
alleged.
16. Ext.P20 is the sanction order issued by the Board of Directors
of Thiruvananthapuram Service Co-operative Bank Ltd. to prosecute the
second accused Sri.Sasidharan Nair. No sanction was produced to
prosecute the first accused since he was not a public servant at the time of
taking cognizance of the offences. These aspects are not disputed.
17. The definite case of the prosecution is that accused Nos.1 and
2 along with deceased P.K.Manoharan and Assistant Secretary
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G.Sreekumari hatched criminal conspiracy and in pursuance of the said
conspiracy, they forged Exts.P3, P7, P8 and P9 secured loan applications
for the purpose of getting undue pecuniary advantage. Exts.P3, P7 and P8
loan applications are the subject matter of C.C.30/2009 and Ext.P9
secured loan application is the subject matter of C.C.32/2009. Exts.P3, P7
and P8 loans were availed on the security of FD No.2183/173/94-95
which was in the name of one S.R.Anilkumar. Ext.P9 secured loan was
availed on the security of FD receipt No.3561/201/95-96 which was also
in the name of Sri.S.R.Anilkumar. The above referred two FD certificates
are not produced in this case since the amounts were released to
Sri.S.R.Anilkumar. Instead, from Ext.P4 FD Register and from Ext.P10
FD Register, showing the details of the said two FDs were produced by
the prosecution to show that above F.Ds were in the name of
S.R.Anilkumar. Ext.P4(a) is the relevant page in respect of the details of
FD receipt No.2183/173/94-95 in the name of Sri.S.R.Anilkumar. It is
evident from Ext.P4(a) that S.R.Anilkumar deposited Rs.1,80,000/- on
14.11.1994 and the said FD was closed and released to Sri.S.R.
Anilkumar on 4th May 1995, without realizing the loans sanctioned on its
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strength. A perusal of Ext.P4(a) FD register, it is clear that there is no
entry in Ext.P4(a) regarding availing of any secured loan on the basis of
the said Fixed Deposit. The details of the FD No.3561/201/95-96 was
entered in page No.94 of Ext.P10 FD register. Page No.94 of Ext.P10
marked as Ext.P10(a). Ext.P10(a) FD details would show that
S.R.Anilkumar deposited Rs.1,95,000/- on 13.10.1995 and the same was
closed, that is, amount was released to S.R. Anilkumar on 25.01.1999.
The details of the secured loans availed on the basis of Ext.P10(a) FD is
not noted in Ext.P10(a).
18. The allegation in C.C. No.30/2009 is that accused Nos.1 and
2 along with deceased P.K. Manoharan and G.Sreekumari hatched
criminal conspiracy and in pursuance of the said conspiracy, they inserted
three forged secured loan applications, that is, Exts. P3, P7 and P8
purported to have been filed by the fixed depositor Sri.S.R.Anilkumar
and availed Rs.10,000/- each on the basis of the said three secured loan
applications, and thereby obtained undue pecuniary advantage to the tune
of Rs.30,000/- from the Bank. It is also alleged that after the total amount
covered by Ext.P4(a) fixed deposit was released in the name of
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S.R.Anilkumar with interest without realizing the above referred three
secured amount of loans.
19. The allegation in C.C. No.32/2009 is that accused Nos.1 and
2 along with deceased P.K.Manoharan hatched criminal conspiracy and in
pursuance of the said conspiracy forged Ext.P9 secured loan application
purported to have been filed by the fixed depositor S.R.Anilkumar and
availed Rs.50,000/- as loan on 22.11.1995 on the basis of Ext.P10(a) F.D
and after that released the total amount covered by Ext. P10(a) FD in
favour of S.R.Anilkumar. It is also alleged that the said Rs.50,000/-
availed on the basis of secured loan application was credited to the
Savings Bank Account of the late P.K.Manoharan. A perusal of Ext.P4(a)
FD register would show that Exts.P3, P7 and P8 secured loans were not
noted in Ext.P4(a) FD register. Similarly, availing of Ext.P9 secured loan
also was not entered in Ext.P10(a) FD register.
20. Ext.P5 is the secured loan register from 20.07.1994 to
24.07.1995 maintained in the Thiruvananthapuram Service Co-operative
Bank. Ext.Pl1 is the secured loan register for the period 17.03.1990 to
16.07.1996. Exts.P5(a), P5(b) and P5(c) are the relevant entries regarding
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Exts.P3, P7 and P8 secured loans, viz., SL Nos.280, 287 and 288
respectively. Ext.P5(a) would show that on 19.12.1994 on the basis of
Ext.P3, Rs.10,000/- was availed as secured loan. Ext.P5(b) would show
that on 07.01.1995, Rs.10,000/- was availed on the basis of Ext.P7 loan,
that is, SL No. 287. Ext.P5(c) would show that on 07.01.1995, another
Rs.10,000/- was availed as secured loan No.288, that is, based on Ext.P8
loan application. Ext.P5 series secured loan register entries would
establish the fact that on the basis of Exts.P3, P7 and P8 secured loan
applications (SL Nos.280, 287 and 288) Rs.10,000/- each (total
Rs.30,000/-) were availed on the basis of Ext. P4(a) FD, that is, the FD in
the name of S.R Anilkumar.
21. The entry in respect of Ext.P9 loan application (SL No.480)
could be found in page 116 of Ext.P11 SL register. The said page is
marked as Ext.P11(a). Ext.P11(a) would show that Rs.50,000/- was
availed as loan on 22.11.1995 on the basis of Ext.P10(a) fixed deposit in
the name of S.R. Anilkumar. A perusal of the entries in Ext.P4(a) FD
register and Ext.P5 series secured loan registers in juxtaposition the same
would show that on the basis of Ext.P4 FD which is in the name of SR
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Anilkumar, Exts.P3, P7 and P8 secured loans were availed. Similarly, on
perusal of Ext.P10(a) FD entry and Ext.P11(a) secured loan register entry,
it could be gathered that on the basis of Ext.P10(a) FD which is in the
name of S.R.Anilkumar, Ext.P9 secured loan was availed. Moreover, in
Ext.P6 cash book entries, the disbursement of the amounts covered by
Exts.P3, P7 and P8 loan applications were entered. Ext.P6(a) is the entry
regarding the payment of Rs.10,000/- on the basis of Ext.P3 application
on 19.12.1994. The payment was shown effected in the name of
Anilkumar. In Ext.P6(b) the cash payment in respect of Exts.P7 and P8
secured loan applications, viz., Rs.10,000/- each was entered. Ext.P6(b)
entry would show that on 07.01.1995 loan amount covered by Exts.P7
and P8 were disbursed in the name of Anilkumar. The definite case of the
prosecution is that the loan amounts availed on the basis of Ext.P9 loan
application (SL No.480) was credited to the Savings Bank Account of the
late P.K.Manoharan. In Ext.P12 Account Book in page No.141 as per SL
No.90 it could be seen that Rs.50,000/- on the basis of SL No.480
(Ext.P9) was credited in the account of late P.K.Manoharan. The said
entry is marked as Ext.P12(a). Exts.Pl to P14 were marked and proved
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through PW1 Internal Auditor of the Bank. If that be so, the evidence
available on record is sufficient to infer that the amount covered by
Exts.P3, P7, P8 and P9 secured loan applications were disbursed from the
Bank.
22. Now the prime question poses is whether Ext.P3 loan
application, Ext.P3(a) loan bond, Ext.P3(b) loan voucher, Ext.P7 loan
application, Ext.P7(a) loan bond, Ext.P7(b) loan voucher, Ext.P8 loan
application, Ext.P8(a) loan bond, Ext.P8(b) loan voucher, ExP9 loan
application, Ext.P9(a) loan bond, Ext.P9(b) loan voucher are forged
documents? If so, who committed the forgery? The allegation in
C.C.30/2009 is that Exts.P3 series, P7 series and P8 series documents
were forged by the accused along with late P.K.Manoharan and
G.Sreekumari and Ext.P9, that is, loan application mentioned in
C.C.No.32/2009 was forged by the accused along with late
P.K.Manoharan and used the said four loan applications purported to have
been submitted by S.R.Anilkumar who was the holder of Ext. P4(a) and
Ext P10(a) fixed deposits. Here, the prosecution has a specific case that
the fixed depositor S.R. Anilkumar could not be traced during the course
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of investigation and hence his statement could not be recorded, even
though earnest efforts were made to locate him. Apart from that, the
prosecution case further is that the said Anilkumar was questioned during
the course of Vigilance Enquiry conducted as VE.No.42/98/SIU in the
subject matter. PW7 Investigating Officer deposed that, during the course
of investigation, a registered letter was sent in the address of
S.R.Anilkumar and the said registered letter returned unserved with the
endorsement "addressee not in station, present address not known,
returned to sender" and the letter got marked as Ext.P32 through PW7.
PW8, the officer who filed final report in the crime before the Special
Court also deposed that even though he conducted investigation regarding
the whereabouts of S.R. Anilkumar, he could not locate S.R. Anilkumar.
23. The learned Special Judge after appraising the evidence had
found that in Exts.P3(d), P7(d), P8(d) and P9(d), the endorsements on the
rear side of Exts.P3, P7, P8 and P9 loan applications respectively were
made by the 1st accused. Further, the second accused also made
endorsement in Exts.P3, P7, P8 and P9 as per the entries on the rear side
of Exts.P3(c), P7(c), P8(c) and P9(c).
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24. Reading the evidence of PW1 as per clause 46(1) of Ext.P1
by-law, 90% of the fixed deposit amount could be disbursed as secured
loan in favour of the depositor and in order to get the secured loan on the
basis of FD receipts, the depositor should approach the Secretary with FD
certificate and on examining the FD certificate, the Secretary would issue
loan application, loan bond and loan voucher to the depositor and after
filling the same, the depositor would subscribe his signature in the
documents and entrust the same to the Secretary along with the FD
certificate. Thereafter, the above documents would be verified by the
Section Clerk and loan clerk would note the loan amount in the FD
register and in the SL register. The Section Clerk would write the loan
amount, loan number etc. in the SL register. That apart, the Section Clerk
would be duty bound to make endorsement in the FD certificate also
regarding the issuance of loan and after that Section Clerk would submit
the FD register, loan ledger, voucher, loan application and FD certificate
before the Secretary for the purpose of passing the loan and on verifying
the said records, the Secretary would pass the voucher for the purpose of
sanctioning the loan. After passing the loan, Secretary would give
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voucher directly to the cash section or entrust the same to any other staff
of the Bank for encashment. According to PW1, after disbursement of the
loan amount, the Secretary would place the loan application before the
Director Board Meeting for the purpose of ratification and prior to that
the Assistant Secretary would verify the file. After obtaining
recommendation of the Assistant Secretary, the Secretary would place the
file before the Director Board for getting ratification at a later stage.
25. Here, Ext.P2 is the report prepared by PW1, the Internal
Auditor, wherein she had shown the details of secured loans availed in the
name of S.R.Anilkumar. According to her, for the purpose of preparing
Ext.P2 report, she had verified loan applications, loan bonds, vouchers,
FD register, loan ledger (SL register) and cash book etc. Exts.P3 series,
P7 series, P8 series and P9 series were marked and proved through PW1
Internal Auditor. PW1 categorically deposed before the Special Court that
various entries in Exts.P3 series, P7 series, P8 series and P9 series were in
the handwriting of late P.K.Manoharan, A1 Secretary and A2 Senior
Clerk. She testified further that the handwriting of Assistant Secretary
G.Sreekumari also present in Exts.P3, P7 and P8. Exts.D2, D3 and D4 are
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the endorsement made by Assistant secretary G.Sreekumari in Exts.P3,
P7 and P8 loan applications respectively. Thus from the evidence of PW1
Internal Auditor, it could inferred that in Ext.P9 series, handwriting of
Assistant Secretary G.Sreekumari not available. But at the same time, in
Ext.P9 series also, endorsements made in the handwriting of A1
Secretary, A2 Senior Clerk and late P.K.Manoharan, are available. PW1
further testified that Exts.P3(a), P7(a), P8(a) and Ext.P9(a) loan bonds are
in the handwriting of late P.K.Manoharan and Exts.P3(b), P7(b), P8(b)
and P9(b) loan vouchers are in the handwriting of A2 Senior Clerk.
Indisputably A2 Senior Clerk was the person handling the Fixed deposits
and Secured Loan Section. The handwriting of A2 seen in Exts.P4 and
P10 FD register and in Exts.P5 and P11 SL register are not disputed by
A2. Similarly, all the four loans mentioned in the cases at hand were
passed by A1 Secretary and the said fact was also not disputed.
26. PW2, who was the then secretary of the Bank, working as a
Clerk in the same Bank at the time of the alleged transactions in the cases
at hand also had given evidence supporting the evidence of PWI Internal
Auditor regarding the procedure of granting secured loans from the Bank.
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PW2 also deposed in tune with the version of PW1 regarding the
handwritings of Al, A2, late P.K.Manoharan and Assistant Secretary
G.Sreekumari seen in Exts.P3 series, P7 series, P8 series and Ext. P9
series loan applications, loan bonds and loan vouchers.
27. Thus the evidence of PW1 Internal Auditor would show that
in Ext.P4(a) FD details, the handwriting of A2 Sasidharan Nair and initial
of A1 Secretary are present and the said FD was closed on 04.06.1995
and amount was disbursed to the depositor. Apart from that, the evidence
of PW1 would show that in Ext.P5 series secured loan register entries are
in the handwriting of A2 Sasidharan Nair. PW1 deposed that Ext.P10(a)
FD details are in the handwriting of A2 Sasidharan Nair and the said FD
was also closed on 25.01.1999. PW1 testified further that the entries seen
in Ext.P11(a) SL register is in the handwriting of A2 Sasidharan Nair and
the initial of Al Secretary is also available in Ext.P11(a) and the said
initial separately marked as Ext.P11(a-1) through PW1. The evidence of
PW1 would show further that Ext.P11(a) Secured Loan was not repaid.
Thus the evidence of PW1 Internal Auditor coupled with Exts.P4 series
and P10(a) FD register and Ext.P5 series SL register entries and
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Ext.P11(a) SL register entry, the prosecution established that the FD
mentioned in Exts.P4(a) and P10(a) were closed and the amount
disbursed to the FD holder before clearing Ext.P5 series secured loans
and Ext.P11(a) secured loan.
28. In order to prove the fact that Exts.P3, P7, P8 and P9 loan
applications were forged documents, prosecution given emphasis on the
evidence of PW6 Assistant Director (Documents), Forensic Science
Laboratory, Thiruvananthapuram and Ext.P24 report prepared by him.
The disputed signatures of S.R.Anilkumar found in Exts.P3, P3(a), P3(b),
Exts.P7, P7(a), P7(b) and Exts.P8, P8(a) and P8(b) and Exts.P9, P9(a)
and P9(b) were sent to the FSL, Thiruvananthapuram for the purpose of
comparing the same with the standard signature of S.R.Anilkumar
available in Ext.P25 FD application form dated 14.11.1994 submitted by
S.R.Anilkumar before the Bank in respect of the deposit of Rs.1,80,000/-
(Rupees One Lakh Eighty Thousand only), viz., Ext.P4(a) Fixed deposit.
The four signatures of S.R.Anilkumar present in Ext.P25 FD application
were taken as standard signatures and the same were marked as A1, A2,
A3 and A4 in Ext.P24 report for the purpose of FSL examination. The
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questioned signatures in Exts.P3, P3(a) and P3(b) are marked as Q5A,
Q5B, Q5C respectively for the purpose of FSL examination. The
questioned signatures in Exts. P7, P7(a) and P7(b) are marked as Q6A,
Q6B, Q6C respectively for the purpose of FSL examination. The
questioned signatures in Exts.P8, P8(a) and P8(b) are marked as Q7A,
Q7B and Q7C respectively for the purpose of FSL examination. The
questioned signatures in Exts.P9, P9(a) and P9(b) are marked as Q94,
Q9B and Q9C respectively for the purpose of FSL examination. PW6
Assistant Director categorically stated that on examination it was found
that the person who put the standard signatures stamped and marked Al to
A4 did not write the red enclosed questioned signatures in Q5A, Q5B,
Q5C, Q6A, Q6B, Q6C, Q7A, Q7B, Q7C, Q9A, Q9B and Q9C. Ext.P24
FSL speaks of the reasons for the result mentioned in Ext. P24 report.
Thus from the evidence of PW6 and Ext.P24 report prepared by him, the
prosecution succeeded in establishing that the signatures purported to
have been put by Sri.S.R.Anilkumar in Exts.P3 series, P7 series, P8 series
and P9 series are actually not the signatures of Sri.S.R.Anilkumar.
29. The evidence of PW6 Assistant Director (FSL) and Ext.P24
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report prepared by him along with the substantial evidence of PW1 and
PW2 established the fact that all applications for secured loans were not
put in by S.R.Anilkumar. If that be so, the evidence of PW1, PW2
supported by PW6 and Ext.P24 report prepared by him are sufficient to
hold that Exts. P3 series, P7 series, P8 series and P9 series Secured Loan
Applications, loan bonds and vouchers were not submitted by
Sri.S.R.Anilkumar and the same were forged documents.
30. Now comes the very pertinent question as to whether who
committed forgery of Exts.P3, P3(a), P3(b), Exts.P7, P7(a), P7( b),
Exts.P8, P8(a), P8(b), Exts. P9, P9(a) and P9(b). There is no direct
evidence available to show who committed forgery of the said
documents. Law does not insist that forgery to be proved by direct
evidence as it is difficult to adduce direct evidence to prove forgery. Thus
the courts have to dwell upon the circumstantial evidence to prove the
offence of forgery. Here, as already discussed, the evidence of PW1 and
PW2 would show that the handwriting of A1, A2, late P.K.Manoharan
and Assistant Secretary G.Sreekumari are available in the loan
applications. Apart from the endorsements of Al and A2 in Exts.P3 series,
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P7 series, P8 series and P9 series could be found from the evidence
discussed in detail herein above. In Ext.P4(a) FD register entries and
Ext.P10(a) FD register entries also, the handwriting of A2 Clerk and
initials of Al Secretary are available. Ext.P5 series SL entries and
Ext.P11(a) SL entries are also in the handwriting of A2 Clerk. The initials
of Al Secretary are also available in Ext.P5 series SL register and in
Ext.P11(a). PW1 categorically deposed that she was acquaintance with
the handwriting of first accused Secretary and second accused Senior
Clerk and all of them were working together in the said Bank. Moreover,
there is no dispute regarding the handwritings of the accused Nos.1 and 2
in the respective registers and the loan applications. The evidence of PW1
and From Ext.P4(a) FD register entries, Ext.P10(a) FD register entries
and from Ext.P5 series SL register entries and Ext.P11(a) SL register
entry would show that without repaying the amount covered by Exts.P3,
P7, P8 and P9 loan applications, fixed deposit amount covered by
Exts.P4(a) and P10(a) were disbursed to the depositor. The amount
covered by Ext.P4(a) was disbursed on 04.05.1995 and amount covered
by Ext.P10(a) FD was disbursed on 25.01.1999. On 04.05.1995 and
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25.01.1999, both the accused were working in the Bank. But at the same
time, Exts.P4(a) FD and P10(a) FD were released to the deposit holder
without clearing the secured loans availed from the said two fixed
deposits. The evidence of PW1 Internal Auditor is that without clearing
the SL amounts, FD receipt amount would not be disbursed. Further, the
evidence of PW1 would show that if a secured loan was issued on the
security of a FD certificate, the same should be noted in the SL register
and in the FD register. Here, admittedly, the issuance of Exts.P3, P7, P8
and P9 secured loans are noted in the concerned secured loan registers,
viz., Exts.P5 and P11. But at the same time, the same was willfully not
noted in Ext.P4(a) FD register and in Ext.P10(a) FD register. Even though
the learned counsel for the 2nd accused argued that the same only as an
omission, the evidence available on record is sufficient to see that without
clearing the above referred four secured loans, Ext.P4(a) FD and
Ext.P10(a) FD amounts were disbursed to the FD holder after closing the
fixed deposit and thereby loss sustained to the Bank in respect of the
amount covered by the applications.
31. It was found by the Special Court that the handwriting of A2
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Clerk and initials of Al Secretary are present in the respective FD
registers and SL registers. Admittedly, the details of the availing of
secured loans are noted in the secured loan register by A2. The Fixed
Deposit Register is also maintained by A2, But at the same time, the
secured loans availed on the basis of Ext.P4(a) and P10(a) were not noted
in Ext.P4(a) and P10(a) FD register. The contention of A2 is that even
though he made relevant entries in the loan applications and SL registers,
he had not obtained any intimation regarding the actual cash payment to
the loanees, hence he had not made necessary entries in the fixed deposit
register regarding the disbursement of the loan amount. But at the same
time, A2 himself noted the details of the Secured loans in Ext.P5 series
SL register and Ext.P11(a) SL register. In such a situation, A2 should
have made necessary entries regarding the disbursement of secured loan
in Exts.P4(a) and P10(a) FD register. Admittedly, A2 was the loan section
clerk at the relevant time and he was dealing with Exts.P4 and P10 FD
registers and Exts.P5 and P11 secured loan registers. In such a situation,
A2 ought to have entered the details of the secured loans in Ext.P4(a) FD
register and Ext.P10(a) FD register.
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32. Exts.D2, D3 and D4 entries would show that Assistant
Secretary G.Sreekumari recommended to sanction secured loans covered
by Exts.P3, P7 and P8 loan applications. But at the same time, her
recommendation was not present in Ext.P9 loan application. Further, the
amount covered by Ext. P9 loan application (SL 480) was credited to the
account of P.K.Manoharan. The said aspect to be found from Ext.P12(a).
Thus the involvement of G.Sreekumari and late P.K.Manoharan could
also to be found in this occurrence along with Al Secretary and A2
Section Clerk.
33. On evaluation of the evidence available on record, it is clear
that without clearing the secured loans, the entire amount covered by
Ext.P4(a) FD and Ext.P10(a) FD were disbursed to the deposit holder.
When the said two deposits were closed, first accused was the Secretary
of the Bank and second accused was the concerned Section Clerk. The
evidence available on record is sufficient to see that Al himself issued the
loan applications and he had put up his initials on the loan applications.
He placed the said four secured loans before the Board of Directors for
the purpose of ratification and he himself passed all the four loans. But at
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the same time, no entry in respect of the said four loans are entered in
Ext.P4(a) FD register and Ext.P10(a) FD register. The initials of A2 are
seen in Ext.P5 series SL register and Ext.P11(a) SL register and the 2 nd
accused dealt with F.D and loan sections during the relevant period. On
evaluating the evidence in the above line, it is difficult to accept the
contention recorded by Al and A2 that they were having no direct
knowledge regarding the disbursement of amount covered by four SL
applications.
34. The evidence of PW1 and PW2, would show that if a secured
loan was sanctioned on the basis of FD receipt, the FD receipt should be
keept in the custody of the Secretary. But at the same time, the contention
of Al Secretary is that at the relevant time, President of the Bank (PW3)
was the custodian of the valuables including FD receipts. According to
the learned defence counsel, prior to 9 th November 1998, President was
the custodian of all valuables. In order to substantiate his argument he
relied on Ext.D6 Byelaw of Thiruvananthapuram Service Co-operative
Bank Ltd. Ext.D6 Byelaw got marked through PW3 President during his
cross-examination. As per clause 25(e) of Ext.D6 byelaw, President is the
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custodian of the valuables. From the evidence available on record it can
be seen that Ext.D6 byelaw was prevailed before Ext.P1 byelaw. Ext.D6
clause 25(e) reads as follows:
"The President shall have the custody of all the
properties of the bank including cash and the jewels etc.
lodged with the bank as security for loans under bye-laws
46 (5) and (6). The Board of Directors may frame
subsidiary rules with the approval of the Registrar for
ensuring the safety of the properties left in the custody of
the President."
But at the same time, as per Ext.P1 bylaw clause 25(e), Secretary is
the custodian of all the properties of the Bank including valuables. Clause
25(e) of Ext. P1 bylaw reads as follows:
"The Secretary shall have the custody of all the
properties of the Bank including cash, jewels etc. lodged
with the Bank as security for loans under Byelaw 46(5)
and (6) and the valuables jewels etc. kept in the locker of
the Bank, subject to the control of the President. The
Board of Directors may frame subsidiary rules with the
approval of the Registrar for ensuring the safety of the
properties left in the custody of the Secretary."
Indisputably, Ext.P1 Byelaw is the byelaw after the amendment of
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Ext.D6 Byelaw. During cross-examination of PW3 President, PW3
admitted that Byelaw was amended during 1998 and prior to that
amendment also, as per proceedings of the Bank, Secretary was in charge
of the Bank. PW3 deposed the said aspects. Therefore, the evidence of
PW3 the President and a reading of clause 25(e) of Ext.D6 byelaw and
clause 25(e) of Ext.P1 Byelaw, it is clear that prior to the amendment of
clause 25(e) of Ext.D6, President was the custodian of the valuables as
per clause 25(e) of Ext.D6 Byelaw. But at the same time, the version of
PW3 President is that even though, as per clause 25(e) of Ext.D6 Byelaw,
President was the custodian by way of issuance of proceedings, the entire
charge was given to the Secretary.
35. In these cases, the Special Court found that the evidence
discussed would categorically prove that accused Nos.1 and 2 along with
deceased P.K.Manoharan and Assistant Secretary G.Sreekumari hatched
criminal conspiracy and in pursuance of the said conspiracy, they had
misappropriated the amount covered by Exts.P3, P7, P8 and P9 loan
applications, that is, SL Nos.280, 287, 288 and 480 respectively after
forging the above documents. Thus, a total amount of Rs.80,000/- was
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misappropriated and for that purpose they committed forgery of
documents marked as Exts.P3, P3(a), P3(b), Exts.P7, P7(a), P7( b),
Exts.P8, P8(a), P8(b), Exts. P9, P9(a) and P9(b).
36. It is argued by the learned counsel for the 2nd accused that in
order to substantiate offence of `forgery', it is necessary for the
prosecution to prove commission of forgery by the accused and in this
regard the decision in Vandana's case (supra) has been pointed out.
37. In this connection, it is relevant to refer Sections 463, 465 and
468 of the IPC and its corresponding provision in the Bharatiya Nyaya
Sanhita (hereinafter referred to as 'BNS' for short).
Section 463 of IPC provides as under:
463. Forgery.--Whoever makes any false
document or false electronic record or part of a
document or electronic record, with intent to cause
damage or injury, to the public or to any person, or to
support any claim or title, or to cause any person to part
with property, or to enter into any express or implied
contract, or with intent to commit fraud or that fraud
may be committed, commits forgery.
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Section 336 of BNS is the corresponding provision to
Section 463 of IPC. The same reads as under:
"336. Forgery - (1) Whoever makes any false
document or false electronic record or part of a
document or electronic record, with intent to cause
damage or injury, to the public or to any person, or to
support any claim or title, or to cause any person to part
with property, or to enter into any express or implied
contract, or with intent to commit fraud or that fraud
may be committed, commits forgery.
(2) Whoever commits forgery shall be punished with
imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
(3)Whoever commits forgery, intending that the
document or electronic record forged shall be used for
the purpose of cheating, shall be punished with
imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.
(4)Whoever commits forgery, intending that the
document or electronic record forged shall harm the
reputation of any party, or knowing that it is likely to be
used for that purpose, shall be punished with
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imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine."
Section 465 of IPC provides as under:
"465. Punishment for forgery.--Whoever commits
forgery shall be punished with imprisonment of either
description for a term which may extend to two years, or
with fine, or with both."
Section 336(2) of BNS is the corresponding provision to Section
465 of IPC and the same reads as under:
"(2) Whoever commits forgery shall be punished with
imprisonment of either description for a term which
may extend to two years, or with fine, or with both."
Section 468 of IPC reads as under:
"468. Forgery for purpose of cheating.--Whoever
commits forgery, intending that the document or
electronic record forged shall be used for the purpose of
cheating, shall be punished with imprisonment of either
description for a term which may extend to seven years,
and shall also be liable to fine."
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Section 336(3) of BNS is corresponding to Section 468 of IPC and
the same reads as under:
"(3)Whoever commits forgery, intending that the
document or electronic record forged shall be used for
the purpose of cheating, shall be punished with
imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine."
38. Coming to the essentials to constitute forgery, the same are as
under:
(a) Essential Ingredients.- The elements of forgery are:
(i) The making of a false documents or part of it;
(ii) Such making should be with intent
a. To cause damage or injury to (i) public, or
(ii) any person; or
b. To support any claim or title; or
c. To cause any person to part with property;
or
d. To cause any person to enter into express
or implied contract; or
e. To commit fraud or that fraud may be
committed.
39. Further it is the settled law that every false or fabricated
document is not a forged document. There must be acts that constitute the
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document as a false or fabricated one, that is to say, the case must fall
within the definition of making false document under Section 464 of the
IPC and such false document must also possess the character of tendency
described under Section 463 of IPC. It is not necessary that the document
should be published or made in the name of a really existing person (vide
explanation 2). But it must either appear on its face to be, in fact, on
which, if true, would possess some legal validity. Or in other words, must
be legally capable of effecting the fraudulent intent. Until a false
document is made either in whole or in part, there cannot be any forgery.
Mere preparation for the commission of a possible crime of forgery
without a false document in part or in whole cannot itself be either
forgery or abetment of forgery. To put it otherwise, it is not correct to say
that an offence of forgery in terms of Section 464 of IPC comes into
being when a person makes a false document and not when a person
causes to be made a false document. No word in an enactment is
surplusage. The law-making authority, in its wisdom, has used the word
"makes" in addition to the other words, such as "signs, seals and
executes". The said word has, therefore, to be interpreted independently
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of the other words referred above. Making a document is different from
causing it to be made. As per explanation 2 to Section 464 of IPC, it is
clarified that for constituting offence under Section 464 of IPC, it is
imperative that a false document is made and the accused person is the
maker of the same.
40. An intent to cause injury is not an essential ingredient in the
offence of forgery. The intents, as recited in section 463 of the Indian
Penal Code, 1860 include among various alternatives, an intent to cause
damage or injury, but this phrase does not govern the other intents
mentioned in the section. It is an intent complete in itself. The definition
in section 463 is itself subject to the definition in section 464 IPC, in
which the other two essential elements are that the act should be done
"dishonestly or fraudulently." In other words, whichever of the intents
given in section 464 may be applicable, the act itself must be done
dishonestly or fraudulently to sustain a conviction for forgery. The use by
the Legislature of words "dishonestly or fraudulently" in the alternative,
obviously means that they are not tautological but must be given different
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meanings. The intention to defraud is something other than the intention
to cause wrongful gain or loss.
41. In the decision reported in Shri Sukhbir Singh Badal v.
Balwant Singh Khera and Others reported in 2023 KHC 6479, the
Apex Court considered the offence of forgery in paragraph No.5.7 and
held as under:
"whoever makes any false documents, with intent to
cause damage or injury, to the public or to any person,
or to support any claim or title, or to cause any person
to part with property, or to enter into any express or
implied contract, or with intent to commit fraud or that
fraud may be committed", he is said to have committed
the offence of forgery. Making a false document is
defined under S.464 IPC. Therefore, for the offence of
forgery, there must be making of a false document with
intent to cause damage or injury to the public or to any
person. Therefore, making the false document is sine
qua non. Identical question came to be considered by
this Court in the case of Mohammed Ibrahim & Ors.
(supra). While interpreting S.464 and S.471 IPC and
other relevant provisions of IPC, in paragraphs 13 an d
14, it is observed and held as under:- "13. The
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condition precedent for an offence under S.467 and
S.471 is forgery. The condition precedent for forgery is
making a false document (or false electronic record or
part thereof). This case does not relate to any false
electronic record. Therefore, the question is whether
the first accused, in executing and registering the two
sale deeds purporting to sell a property (even if it is
assumed that it did not belong to him), can be said to
have made and executed false documents, in collusion
with the other accused. 14. An analysis of S.464 of the
Penal Code shows that it divides false documents into
three categories:
1.The first is where a person dishonestly or fraudulently
makes or executes a document with the intention of
causing it to be believed that such document was made
or executed by some other person, or by the authority of
some other person, by whom or by whose authority he
knows it was not made or executed. 2. The second is
where a person dishonestly or fraudulently, by
cancellation or otherwise, alters a document in any
material part, without lawful authority, after it has been
made or executed by either himself or any other person.
3. the third is where a person dishonestly or
fraudulently causes any person to sign, execute or alter
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a document knowing that such person could by reason
of (a) unsoundness of mined; or (b) intoxication; or (c)
deception practised upon him, know the contents of the
document or the nature of the alteration. In short, a
person is said to have made a "false document", if (i)
he made or executed a document claiming to be
someone else or authorised by someone else; or (ii) he
altered or tampered a document; or (iii) he obtained a
document by practising deception, or from a person not
in control of his senses"
42. In the decision reported in Shoma G.Madan v. Kerala State
reported in 2023 KHC 9333, this Court also extensively considered the
foundation for the offence of forgery and held in paragraph No.3, 4 and 5
are as under, after referring the definition of the words "dishonestly" and
"fraudulently", as defined under Section 24 and 25 of the IPC as under:
3. The foundation of the offences alleged is "forgery". The
definition of "false document" is a part of the definition of
'forgery'. Both definitions are interlinked to form the
offence. On a reading of the ingredients of the offence of
forgery, the following are essential:-
(1) Fraudulently signing a document or a part of a document
with the intention of causing it to be believed that such
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document or part of a document was signed by another or
under his authority;
(2) Making such a document with the intention to commit
fraud or that fraud may be committed.
4. The elements of mens rea, as per the definition, are
dishonestly and fraudulently. Section 24 of the Indian Penal
Code defines "dishonestly" as follows:-
"24. "Dishonestly" Whoever does anything with the
intention of causing wrongful gain to one person or wrongful
loss to another person, is said to do that thing
"dishonestly".
Section 25 Of IPC defines 'fraudulently' as follows:-
"25. "Fraudulently" A person is said to do a thing
fraudulently if he does that thing with intent to defraud but
not otherwise."
5. The word "defraud" includes an element of deceit. Deceit
is not an ingredient in the definition of the word
"dishonestly" while it is an important ingredient in the
definition of the word 'fraudulently. The former involves a
pecuniary or economic gain or loss, while the latter excludes
that element. In the definition of `dishonestly', wrongful gain
or wrongful loss is the necessary ingredient. Both need not
exist, and and one would be enough. If the expression
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"fraudulently" involves the element of injury to the person
or persons deceived, it would be reasonable to assume that
the injury should be something others than pecuniary or
economic loss. Though almost always an advantage to one
causes loss to another and vice versa, it need not necessarily
be so. To satisfy the definition of "fraudulently" it would be
enough if there was a non-economic advantage to the
deceiver or a non-economic loss to the deceived, and both
need not co-exist. Therefore, the expression "defraud"
involves two elements, namely, deceit and injury to the
person deceived. Injury is something other than economic
loss, that is, deprivation of property, whether movable or
immovable, or of money, and it will include any harm
whatever caused to any person in body, mind, reputation or
such others. In short, it is a non-economic or nonpecuniary
loss. A benefit or advantage to the deceiver will almost
always cause loss or detriment to the deceived. Even in those
rare cases where there is a benefit or advantage to the
deceiver but no corresponding loss to the deceived, the
second condition is satisfied. (Vide: Dr. Vimla v. The Delhi
Administration (AIR 1963 SC 1572).
43. Summing up the ingredients for the offence of forgery, in
order to bring home an offence of forgery under the first category, where
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a person dishonestly or fraudulently makes or executes a document with
the intention of causing it to be believed that such document was made or
executed by some other person, or by the authority of some other person,
by whom or by whose authority he knows it was not made or executed,
are necessary. But there is a difference between a person executing a sale
deed, claiming that the property conveyed is his property and a person
executing a sale deed by impersonating the owner or falsely claiming to
be authorised or empowered by the owner to execute the deed on owner's
behalf. In the first instance, the person bonafide believes that the property
actually belongs to him. In the second instant, he may be dishonestly or
fraudulently claiming it to be his own even though he knows that it
dishonestly is not his property. In order to consider a document as a false
document, it is not sufficient that a document has been made or executed
dishonestly or fraudulently, but there is a further requirement that it
should have been made with the intention of causing it to be believed that
such document was made or executed by or by the authority of the
person, by whom or by whose authority he knew that it was not made or
executed.
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Thus the ingredients to prove the offence of forgery are:
(i) The making of a false document or part of it and
(ii) such making should be with such intention as is specified in the
section viz.
(a) to cause damage or injury to (i) the public, or (ii) any person; or
(b) to support any claim or title; or
(c) to cause any person to part with property; or
(d) to cause any person to enter into an express or implied contract; or
(e) to commit fraud or that fraud may be committed.
If a document, which is not genuine, is being used as such and a person is
made to part with money on that basis, then not only the offence of
cheating is defined under Section 415 of IPC but also the offence of
forgery as defined under Section 463 of IPC is attracted.
44. Here the allegation of the prosecution is that 2 fixed deposit
receipts, as evidence from Ext.P4(a) and Ext.P10(a) were issued in the
name of S.R.Anilkumar and on the basis of the said two fixed deposits
secured loans, as discussed herein above, were granted to the tune of
Rs.30,000/- and Rs.50,000/-. The evidence discussed herein above,
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including the evidence of the expert, the prosecution established the fact
that S.R.Anilkumar did not file any applications for availing secured
loans and he did not put his signatures in the applications. Evidently the
loan amounts were transferred in the name of P.K.Manoharan (a co-
accused, who is no more). It has been proved by the prosecution that the
1st accused herein, who was the Secretary and the 2nd accused, who was
the Senior Clerk during the relevant period, are the persons dealt with the
applications and granted loans on the basis of the two fixed deposit
receipts in the name of S.R.Anilkumar. When the applications for the
secured loans were not filed or signed by S.R.Anilkumar, definitely the
same were forged ones. When 2 officials of the Society who dealt with
the forged applications and granted loans, that too, without noting the said
loans in the F.D register or in the F.D receipts and who in turn released
the F.D amounts to S.R.Anilkumar without even realising the loans, it has
to be held that the persons, who dealt with the documents, which are
found to be forged, are the persons forged the same and here the said
persons are the 1st and 2nd accused, including Sreekumari and
P.K.Mohanan (now no more). The deliberate intention to misappropriate
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amounts covered by the secured loans to be found from the very vital fact
that if such an intention is not there, at least, the loans were entered in the
F.D registers and in the F.D receipts to avoid release of the F.D amounts
without closing the loan. Therefore, the contention raised by the learned
counsel for the 2nd accused that forgery has not been proved in this case
as against the 2nd accused is found to be untenable and the contention is
set at rest.
45. On evaluation of evidence, this Court has no hesitation to
hold that the Special Court rightly found that accused Nos.1 and 2
committed the offence punishable under Sections 13(1)(c) and (d) read
with Section 13(2) of the PC Act, 1988 and Sections 420, 468, 471 and
120-B of the IPC. Therefore, the conviction doesn't require any
interference.
46. Coming to the sentence, the argument advanced by the
learned State Brief appearing for the 1 st accused based on the decision
reported in Bansal V.K v. State of Haryana's case (supra) also to be
addressed. Section 427 of Cr.P.C deals with the case of an offender, who
was already sentenced for another offence, that is to say, when a person
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already undergoing a sentence of imprisonment, is sentenced to a
subsequent conviction to imprisonment or imprisonment for life, such
imprisonment or imprisonment for live shall commence at the expiration
of the imprisonment to which he has been previously sentenced, unless
the court directs that the subsequent sentence shall run concurrently with
such previous sentence. In Bansal V.K v. State of Haryana's case
(supra), the Apex Court dealt with the impact of Section 427 of Cr.P.C
and in fact, application of Section 427 of Cr.P.C which is paramateria
with Section 467 of Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS'
for short), the power of the court is discretionary in nature though the said
power conferred upon the court has to be exercised along judicial lines
and not in mechanical or pedantic manner. Similarly, it is difficult to lay
down any straight jacket approach how to exercise the power under
Section 427 of Cr.P.C as well as Section 467 of BNSS. In the instant
case, the accused were tried for 2 different offences committed for 2
different periods. However, as pointed out by the learned counsel for the
appellant, the offences were committed on 19.12.1994 and 22.11.1995
and none of the accused did not raise any contention before the Special
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Court that both these cases to be considered as one. Therefore, this Court
is not inclined to consider the plea raised by the learned State Brief for
the 1st accused that the sentence in both these cases to be allowed to be
suffered concurrently. However leniency in sentence, if any, shall be in
consideration of the statutory minimum provided. In the instant case, for
the offence under Section 13(1)(c) and (d) read with Section 13(2) of the
PC Act, 1988, the Special Court sentenced the accused with the minimum
provided for the same, ie. one year each. Similarly, for the offences under
Sections 465, 471 and 120B of IPC, the Special Court sentenced the 1 st
and 2nd accused to undergo imprisonment for 6 months each and the
learned Special Court ordered to run the sentences concurrently. In view
of the above, the sentence imposed by the Special Court need not be
interferred. Therefore, the sentence also is to be confirmed.
47. In the result, these appeals fail and are accordingly dismissed.
Consequently the conviction and sentence imposed by the Special Court
in both cases are confirmed. As a sequel thereof, the order suspending
sentence and granting bail to the accused stands cancelled and the bail
bond also stands cancelled.
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48. The accused is directed to surrender before the Special Court
to undergo the sentence forthwith, failing which the Special Court shall
execute the sentence forthwith.
Registry is directed to forward a copy of this judgment
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
