Kerala High Court
P.R.Sasi And Another vs State Of Kerala on 17 October, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 17TH DAY OF OCTOBER 2025 / 25TH ASWINA, 1947
CRL.A NO. 992 OF 2010
AGAINST THE JUDGMENT DATED 26.04.2010 IN C.C. NO.151 OF 2008 ON THE
FILES OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,
KOTTAYAM
APPELLANT/ACCUSED NOS.3 AND 4:
1 P.R.SASI, S/O RAMAN,
PLATHOTTATHIL HOUSE, ADUKIDANTHAN, CHATHURANGAPPARA,
IDUKKI.
2 K.G. SASIDHARAN NAIR
S/O. GOPINATHAN NAIR, KOLLIKUNNEL HOUSE, KALLUPALAM,
CHATHURANGAPPARA, IDUKKI.
BY ADVS.
SHRI.C.S.MANILAL
SRI.S.NIDHEESH
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SPL PP VACB - RAJESH.A, SR PP VACB - REKHA.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2025,
THE COURT ON 17.10.2025 DELIVERED THE FOLLOWING:
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Crl.A. No. 992 of 2010
2
"C.R"
JUDGMENT
Dated this the 17th day of October, 2025
The 3rd and 4th accused in C.C. No.151/2008 on
the files of the Court of the Enquiry Commissioner and
Special Judge, Kottayam, have filed this appeal, under
Section 374(1) of the Code of Criminal Procedure, 1973,
challenging the conviction and sentence imposed by the
Special Judge, against them as per the judgment dated
26.04.2010. The State of Kerala, represented by the Public
Prosecutor is arrayed as the sole respondent herein.
2. Heard the learned counsel for the appellants and
the learned Public Prosecutor, in detail. Perused the verdict
under challenge, the records of the Special Court as well as
the decisions placed by the learned counsel for the
appellants.
3. Parties in this appeal shall be referred as
'accused' and 'prosecution', hereafter.
4. In this matter, the prosecution case is that, the
1st accused, who was Manager in Idukki District Co-
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operative Bank, Thookkupalam branch and as such being
public servant, entered into criminal conspiracy with the
other accused persons, forged documents in respect of 1
acre 15 cents of property in survey No.1/1 Kalkoonthal
village and the said documents were used as genuine, by
impersonating Joseph Mathew (Baby), Edakunneal House,
Vattappara, who was the real owner of the property
(subsequently sold to one Thankachan), through the 3 rd
accused at the volition of the 1st and 4th accused and
obtained loan of Rs.1,00,000/- on 09.01.2001 from the bank.
On this premise, the prosecution alleges commission of
offences punishable under Sections 13(1)(c) and 13(1)(d)
read with 13(2) of the Prevention of Corruption Act, 1988
[hereinafter referred as 'P.C. Act' for short] and under
Sections 468, 471, 419 and 120B of the Indian Penal Code
[hereinafter referred 'IPC' for short], by the accused.
5. The 1st and 2nd accused have expired and the
case against them has abated. The 3 rd and 4th accused
appeared on summons. After hearing both sides charge was
framed under Sections 419, 420, 120-B read with 468, 471
IPC and 120-B IPC read with Sections 13(2) read with 13(1)
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(c) and 13(1)(d) of the P.C. Act against the 3 rd and 4th
accused.
6. After framing charge, the Special Court recorded
evidence and completed trial. During trial, PWs 1 to 12
were examined and Exts.P1 to 67 were marked on the side
of the prosecution. After questioning the accused under
Section 313(1)(b) of Cr.P.C, Exts.D1 to D1(b) were marked
on the side of accused as defence evidence.
7. On appreciation of evidence, the Special Court
found that the 3rd accused was guilty for the offences
punishable under Sections 419, 420, 468 and 471 of the IPC
and under Section 120B of IPC read with 13(2) of the P.C.
Act. The Special court also found that, the 4 th accused was
guilty for the offences punishable under Section 120B read
with 468 and 471 of the IPC and 120B of IPC read with
13(2) of the P.C. Act. Accordingly, they were convicted for
the said offences and sentenced as under:
In the result, 3rd accused is convicted
under Sec.419 I.P.C. and sentenced to undergo
rigorous imprisonment for 1 (one) year,
convicted under Sec.420 I.P.C. and sentenced to
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undergo rigorous imprisonment for 2 (two)
years and fine Rs.50,000/- (fifty thousand), in
default to undergo simple imprisonment for 3
(three) months, convicted under Sec.468 I.P.C.
and sentenced to undergo rigorous
imprisonment for 1 (one) year, convicted under
Sec.471 I.P.C. and sentenced to undergo
rigorous imprisonment for 1 (one) year and
convicted under Sec.120-B I.P.C. r/w Sec.13(2)
of the Prevention of Corruption Act and
sentenced to undergo rigorous imprisonment
for 2 (two) years and fine Rs.50,000/- (fifty
thousand), in default to undergo simple
imprisonment for 3 (three) months. The
sentences of imprisonment shall run
concurrently.
The 4th accused is convicted under Sec.
120-B r/w Sec.468 I.P.C. and sentenced to
undergo rigorous imprisonment for 1 (one) year
and fine Rs.50,000/- (fifty thousand), in default
to undergo simple imprisonment for 3 (three)
months, convicted under Sec. 120-B r/w 471
I.P.C. and sentenced to undergo rigorous
imprisonment for 1 (one) year and convicted
under Sec.120-B r/w 13(2) of the Prevention of
Corruption Act and sentenced to undergo
rigorous imprisonment for 2 (two) years and
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fine Rs.50,000/- (fifty thousand) in default to
undergo simple imprisonment for 3 (three)
months. The sentences of imprisonment shall
run concurrently.
8. While canvasing the acquittal of the 3 rd and 4th
accused, it is submitted by the learned counsel for accused
Nos.3 and 4 that, the Special Court relied on the evidence
of PWs 1, 5 and 17 as well as Ext.P42 confession statement
as that of the 4th accused to find that, accused Nos.3 and 4
committed the offences alleged by the prosecution. It is
argued by the learned counsel for accused Nos.3 and 4
that, in the instant case, there was no proper identification
of either the 3rd accused or the 4th accused. It is submitted
that, though PW5, who had disbursed the loan to the 3 rd
accused, was examined to prove the identity of the 3 rd
accused, when a question regarding identity of the 3 rd
accused was put directly to PW5, at the first instance, he
deposed in the negative, though subsequently, he testified
identifying the 3rd accused with certainty, after pointing out
him at the dock, among accused Nos.3 and 4. It is
submitted further that, the Special Court relied on the
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evidence of PW5 to identify the 3rd accused merely on the
basis of photograph identification. According to the learned
counsel for accused Nos.3 and 4, even though identification
of an accused, through photograph is not legally
impermissible, the modalities for the same should have to
be complied in such identification. Otherwise, the
photograph identification is not proper in the eye of law. To
substantiate this contention, the learned counsel for
accused Nos.3 and 4 placed decision of the Apex Court
reported in [AIR 2004 Supreme Court 4965 : 2005 (1)
SCC 85 : 2004 AIR SCW 5685] D. Gopalakrishnan v.
Sadanand Naik and Others, wherein the Apex Court held
as under:
The learned Counsel for the appellant
vehemently contended that showing of
photographs to the witnesses for the purpose
of identification is permissible under law. He
even drew our attention to the Police and
Criminal Evidence Act, 1984 which is in force in
England and submitted that the provisions of
the said statute permit the showing of
photographs to the witnesses for the purpose
of identification and there is nothing in law
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which prohibits such action being taken by the
Investigating Officer. In the instant case, the
witnesses had not described the physical
features of the accused or any identifying
characteristics as to how they identified the
assailants. To such a witness, showing of
photograph would only lead the investigating
officer to make the wrong conclusion regarding
the identification. Even under the provisions of
the Police and Criminal Evidence Act, 1984
which is prevalent in England, the photographs
could be shown to the witnesses only under
certain specified conditions. Annexe E of the
Act are the guidelines and it says that before
showing the photographs of the suspect, the
supervising officer must first confirm that the
description of the suspect given by the witness
has been recorded, and if the supervising
officer is unable to confirm the description, the
officer shall postpone the showing of the
photographs. The other condition as stated in
Annexe E of the statute says that a witness
must not be shown photographs or
computerized or artist's composite or similar
likeness or pictures if the identity of the suspect
is known to the police and suspect is available
to take part in a video identification, an
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identification parade or group identification.
There are no statutory guidelines in the
matter of showing photographs to the
witnesses during the stage of investigation. But
nevertheless, the police is entitled to show
photographs to confirm whether the
investigation is going on in the right direction.
But in the instant case, it appears that the
investigating officer procured the album
containing the photographs with the names
written underneath and showed this album to
the eye-witnesses and recorded their
statements under Section 161 Cr.P.C. The
procedure adopted by the police is not justified
under law as it will affect fair and proper
investigation and may sometimes lead to a
situation where wrong persons are identified as
assailants. During the course of the
investigation, if the witness had given the
identifying features of the assailants, the same
could be confirmed by the investigating officer
by showing the photographs of the suspect and
the investigating officer shall not first show a
single photograph but should show more than
one photograph of the same person, if
available. If the suspect is available for
identification or for video identification, the
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photograph shall never be shown to the witness
in advance.
9. Apart from that, the learned counsel for the
accused placed decision of this Court in Santhosh
Madhavan @ Swami Amritha Chaithanya v. State
reported in [2014 KHC 31] to buttress the same point. The
learned counsel for accused Nos.3 and 4 also placed
decision of the Bombay High Court in Laxman Ganpati
Khot and Others v. Anusyabai and Another reported in
[AIR 1976 BOM 264 : AIR 1976 BOMBAY 264] cited in
this regard.
10. Relying on the decision of the Apex Court
reported in [2024 KHC 6345 : 2024 KHC OnLine 6345 :
2024 INSC 490] Vinod Jaswantray Vyas (Dead)
Through LRs v. State of Gujarat, it is pointed out by the
learned counsel for accused Nos.3 and 4 that, mere
production and marking of a document as exhibit by the
court cannot be held to be a due proof of its contents. Its
execution has to be proved by admissible evidence, that is,
by the "evidence of those persons who can vouchsafe for
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the truth of the facts in issue". In this decision, the Apex
Court relied on another decision reported in [2003 (8) SCC
745] Narbada Devi Gupta v. Birendra Kumar Jaiswal ,
holding the same view.
11. According to the learned counsel for accused
Nos.3 and 4, in this case, the signature of the 3 rd accused in
the loan application, marked as Ext.P13 and the signature
of the 4th accused in Ext.P16 application for membership,
submitted by the 3rd accused by impersonating Joseph
Mathew (Baby) were not forwarded to FSL to get an expert
opinion of the handwriting to prove the same. It is also
pointed out that, Ext.P42 was also not sent for getting
expert opinion to prove that the same was one voluntarily
written by the 4th accused. It is submitted by the learned
counsel for accused Nos.3 and 4 further that, the
prosecution case as to availing fake loan by the 3 rd and 4th
accused with the connivance of the 1 st and 2nd accused,
who were no more, is not substantially proved beyond
reasonable doubt and in such a case, 3rd and 4th accused
are entitled to get acquittal on adjudging benefit of doubt in
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their favour by reversing the judgment of the Special Court.
12. Repelling the contentions raised by the learned
counsel for accused Nos.3 and 4, it is pointed out by the
learned Public Prosecutor that, regarding the identity of the
3rd accused as the person, who applied for loan as per
Ext.P13 is concerned, when Joseph Mathew (Baby) was
examined as PW11, he had given evidence that, when there
was failure to pay the loan availed in his name, a letter was
issued in his address and on receipt of the same, he in turn
responded that he did not avail any loan. At this juncture,
PW11 find out the person, who affixed the photograph in the
application form for the loan and it was found after meeting
him at his house that the person was the 3 rd accused. The
evidence of PW11 during cross-examination in this regard is
available to see that it was the 3 rd accused, who availed loan
by impersonating PW11. He also submitted that, in the
deposition of PW5 in page No.2 also, he categorically
identified the 3rd accused by pointing him at the dock,
as the person, who had met him at the time of
disbursement of the loan. According to the learned
Public Prosecutor, even though to the first question
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regarding the identity of the 3 rd accused, PW5 stated that
he did not know him without properly understanding the
question, subsequently, he had categorically stated that, it
was the 3rd accused, who came to meet him at the time of
disbursement of the loan. Therefore, the identity of the 3 rd
accused is well established. It is pointed out further that,
the evidence of PW5 is sufficient to identify the 4 th accused
also, as he deposed that, he was familiar to the 4 th accused,
as the 4th accused applied for loan in Nedumkandam Co-
operative Society, while PW5 was working there.
13. Insofar as proof of Ext.P42 confession statement,
alleged to be written by the 4th accused addressed to the
General Manager, as deposed by PW17, is concerned, it is
pointed out by the learned Public Prosecutor that, the proof
of the document to be found with the assistance of
explanation to Section 47 of the Evidence Act, as it was
deposed by PW17 that, the 4th accused written Ext.P42
infront of him. Therefore, Ext.P42 was rightly relied on by
the Special Court to identify the 3 rd and 4th accused and
entered into conviction. Thus, the learned Public Prosecutor
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opposed interference in the impugned verdict.
14. In view of the rival submissions, the questions
arise for consideration are:
1. Whether the Special Court is justified in
finding that the 3rd accused committed the
offence punishable under Section 120B of IPC
read with 13(2) of the P.C. Act, 1988?
2. Whether the Special Court is justified in
finding that the 3rd accused committed the
offence punishable under Section 419 of IPC ?
3. Whether the Special Court is justified in
finding that the 3rd accused committed the
offence punishable under Section 420 of IPC ?
4. Whether the Special Court is justified in
finding that the 3rd accused committed the
offence punishable under Section 468 of IPC ?
5. Whether the Special Court is justified in
finding that the 3rd accused committed the
offence punishable under Section 471 of IPC ?
6. Whether the Special Court is justified in
finding that the 4th accused committed the
offence punishable under Section 120B read with
468 of IPC?
7. Whether the Special Court is justified in
finding that the 4th accused committed the
offence punishable under Section 120B read with
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471 of IPC?
8. Whether the Special Court is justified in
finding that the 4th accused committed the
offence punishable under Section 120B of IPC
read with Section 13(2) of the P.C. Act, 1988?
9. Whether the verdict of the Special Court
would require interference?
10. Order to be passed?
15. Point Nos.1 to 8:- In order to address these
questions, it is necessary to evaluate the evidence, in this
case. PW1 deposed that he was working as the Manager of
Idukki District Co-operative bank, Mundiyeruma branch
from 01.01.2003 and the 1st accused was the Manager in
that bank in 1997-2001. He deposed that Mundiyeruma
branch was situated at the place Thookkupalam. He further
deposed that, since the loan taken in the name of Joseph
Edakunnel i.e. PW11/Joseph Mathew (Baby) was not closed,
he had sent notices to the said person and on his enquiry
and it was understood that Joseph Mathew (Baby) had not
come to the bank to avail the loan and had not signed in
the documents and he reported the matter to head office.
He further said that Ext.P1 is the loan application given in
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the name of Joseph Mathew (Baby). Ext.P2 is the affidavit
filed along with it. Ext.P3 is the consent letter given in the
name of Joseph Mathew (Baby). Ext. P4 is the tax receipt in
the name of Joseph Mathew (Baby). Ext.P5 is the photocopy
of the possession certificate. Ext.P6 is the photocopy of
location sketch. Ext.P7 is the encumbrance certificate. Ext.
P8 is the photocopy of the assignment deed. Ext.P9 is the
provisional patta, Ext.P10 the release deed. Ext.P11 is the
valuation certificate in respect of the property. Ext.P12 is
the photocopy of the scrutiny report given by the Advocate.
Ext.P13 is the letter given by PW5 in order to forward the
document to create mortgage by deposit. Ext.P15 is the
affidavit in the name of Joseph Mathew (Baby). Ext.P16 is
the accounting opening form in the name of Joseph Mathew
(Baby). Ext. P17 Is the accounting opening form in the
name of K.G. Sasidharan. Ext.P18 is cash cheque for
Rs.1.00.000/- which was shown to be collected in the name
of PW11 and Ext.P19 is the voucher for that amount which
are kept in the bank. He further deposed that, Ext.P22 is
the promissory note in the name of PW11, Ext.P23 is the
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consumption loan agreement, Ext.P24 is the loan sanction
order, Ext.P25 is the encumbrance certificate and that in
Ext.P23 K.G. Sasidharan Nair and Beena Cherian signed as
witnesses.
16. PW1 identified the signature of Divakaran (A1) in
Exts.P1 to P3 and P5. He also said that Ext.P11 valuation
certificate was prepared and signed by Divakaran. Beena
Cherian was examined as PW7 and she testified that she
was working as Clerk on daily wages in Idukki District Co-
operative bank, Mundiyeruma branch from December 1999
to June 2001 and she signed in Ext.P23 agreement as
directed by the then Manager.
17. PW5 deposed that he was working as Accountant
in Idukki District Co-operative bank from 1998 to 2001, at
that time Divakaran was the Manager and he could identify
Divakaran's signature. He identified signature of Divakaran
in Ext.P1 to P3 and P5 to P7. He further deposed that the
application and the connected documents in the disputed
loan were verified by Divakaran. Divakaran died in January
and that after sanction of the loan from the Head Office he
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disbursed the loan amount to the applicant. According to
him, he attested the signature of the applicant in Ext.P13,
which is Form No.3, the forwarding letter to the Manager
Nedumkandam branch for deposit of the title deed. He
further testified that he identified the applicant from the
photo in Ext.P1 loan application and accused No.3 in the
dock is the person who signed before him in Ext.P13. He
said that, since Divakaran died in January he was in charge
of the Manager.
18. PW1 deposed that on enquiry, he was convinced
that the photograph placed in Ext.P1 loan application is
that of P.R.Sasi, the 3rd accused. In cross examination he
replied that he even went to the house of the 3 rd accused in
the dock. PW5 deposed that he disbursed the loan amount,
that he identified the loanee from the photograph in Ext.P1
application, as he has acquaintance with him, since the 3 rd
accused used to come for the purpose of the loan and he
identified the accused No.3 in the dock as the said person.
He also said that the person in the photograph in Ext.P1
himself signed before him in Ext.P13 and P19. He explained
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that since the loan was already sanctioned from the Head
Office, he had no occasion to scrutinize the file and that the
loan application was sent to the Head Office by the former
Manager, Divakaran. He also said that the 4 th accused in
the dock was also used to come along with 3 rd accused
from the time the loan application was given and that 4 th
accused was also present at the time of execution of
Ext.P13. In cross-examination a suggestion was made to
him that the 3rd accused in the dock is not the person in
Ext.P1 photograph and he denied it. He also said that the
4th accused had loan account in Idukki District Co-operative
bank, Nedumkandam branch, that he had previous
acquaintance with the 4th accused, as he was working in
that branch. Nothing has come out to disbelieve the
evidence of PW5. A suggestion was made during cross
examination that he gave false evidence against the
accused for fear of that he himself would be made accused
in the case, he denied that suggestion. When the loan was
already sanctioned as per the papers forwarded by the
former Manager, PW5 might not have taken care to verify
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whether 3rd accused himself was the loanee. It is also to be
noted that loan application contains the photograph of the
3rd accused. So the involvement of accused Nos.3 and 4 is
specifically spoken to by PW5. There is no suggestion to
him that he was also a member of the conspiracy. So there
is no reason to disbelieve the testimony of PW5.
19. Regarding the identity of the 3rd accused is
concerned, initially, as argued by the learned counsel for
the accused, PW5 stated that he did not know. But,
immediately he stated that, he knew the 3rd accused and he
identified the 3rd accused at the dock voluntarily, when the
3rd and 4th accused were at the dock. In fact, there is no
reason to disbelieve the identification of the 3 rd accused by
PW5 and the same is not at all a photograph
identification as argued by the learned counsel for accused
Nos.3 and 4, to apply the ratio of the decisions placed by
him. In fact, the ratio of the decisions have no direct
application in this case, where PW5 as well as PW11 well
identified him as the person who applied and signed the
necessary documents to avail loan of Rs.1 Lakh in the
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name of PW11.
20. The Special Court given much reliance on Ext.P42
confession statement of the 4th accused to show the
involvement of the 4th accused in the matter of availing of
fake loan. Ext.P42 is proved through PW17. PW17 deposed
that he was the Manager of the Idukki District Co-operative
Bank, Nedumkandam branch. He deposed that 4 th accused
in the dock had account in Nedumkandam branch, that he
asked 4th accused regarding the loan taken from
Mundiyeruma branch, he gave written statement to him
addressing the General Manager and that he sent the same
to the General Manager. He further said that Ext.P42 is the
said statement given by 4 th accused. The marking of the
statement was objected by the counsel for the accused for
the reason that the statement was addressed to General
Manager, Idukki District Co-operative Bank and there was
no endorsement on it by PW17. Since the statement was
alleged to be handed over to PW17, the document was
marked by the Special Court. The crucial evidence of PW17
is that 4th accused wrote the statement infront of him and
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signed the same in his presence. On this ground, the
Special Court found that PW17 is the most competent
person to say about the said statement. He further said
that he did not compel 4th accused to give such a statement
and he only told him that in order to prove his innocence
the statement could be forwarded to the General Manger. A
suggestion was made during cross-examination that 4 th
accused did not give such a statement. PW17 emphatically
denied the same. At the time of questioning under Sec.313
Cr.P.C. the 4th accused denied that he gave such a
statement.
zealously opposed the sanctity of Ext.P42 mainly urging
that the same was not given to PW17 and it was given to
the General Manager. But, on analysing the evidence of
PW17, it is crystal clear that Ext.P42 was a statement
written and signed by the 4 th accused infront of PW12 and
handed over to him, though it was addressed to the
General Manager. Therefore, the contention raised by the
learned counsel for accused Nos.3 and 4 in this regard
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would not succeed. For these reasons the Special Court
held that, there was no reason to disbelieve Ext.P42, since
it was brought out that the statement was not given under
any threat, inducement or promise. So the said document
would be admissible in evidence.
22. A perusal of Ext.P42, it was stated that Manager,
Divakaran (A1) borrowed a total amount of Rs.75,000/-
from the 4th accused on different occasions, that Divakaran
did not repay the same inspite of repeated demands, that
on one occasion when he went to the bank demanding the
money Divakaran told him that one person, who was not in
the station gave documents of his property for taking loan,
that if a third person was arranged at the place of the
property owner, the loan could be passed and amount
could be repaid to the 4 th accused. Accordingly he
arranged his neighbor, Sasi (A3) and introduced him to
Divakaran and an account was opened in the name of the
property owner Joseph Mathew (Baby), that the loan was
passed when Divakaran was alive, that later Divakaran
died, thereafter the amount was withdrawn and at that
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time another person was in charge of the Manager and he
himself got the entire amount as per the loan. Considering
the other facts brought out in evidence, it appears that
what are stated in Ext.P42 are the true facts except the
version that Joseph Mathew (Baby) was not in station and
he entrusted his title deeds to Divakaran.
23. PW11, Joseph Mathew (Baby) given evidence
that, he did not avail any loan and PW10 to whom PW11
sold the property subsequently also deposed that he also
did not avail any loan. Relying on the evidence of PWs 9, 11
to 16, 17 and 23, the Special Court found that, the
probability would be that the prior document, tax receipt
and the encumbrance certificate given by PW10 to PW16,
which in turn were given to PW23 for effecting the
mutation, were returned to Ramesh Babu (A2), that there
was a conspiracy between Divakaran (A1) and Ramesh
Babu (A2) and 4th accused and thereafter 3rd accused was
arranged by 4th accused in the place of the loanee, that
there was conspiracy between all the accused and
accordingly the documents were forged and the loan was
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sanctioned. In this regard, the Special Court observed that,
PW5 stated that the 3rd accused used to come along with
4th accused to the bank in connection with the taking of the
loan and so the same clearly corroborated the statement in
Ext.P42, proved through PW17. PW5 also said that it was 3 rd
accused, who signed in his presence in Ext.P13. So it is
evident that accused No.3 had also knowledge about the
taking of the loan in the name of another person.
24. It is true that, the prosecution could not produce
direct evidence regarding the criminal conspiracy entered
into between all the accused persons and it is impossible
also as it would be done secretly. The criminal conspiracy
could be inferred from the facts and circumstances brought
out by the prosecution. There is sufficient evidence to infer
that the 1st accused did all the things to sanction the loan in
the name of Joseph Mathew (Baby) and ultimately the
money was received either by 3 rd accused or by 4th
accused. So he committed criminal misconduct by giving
Rs,1,00,000/- either to 3rd accused or to 4th accused by
illegal means. Since 3rd accused gave his photograph in
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order to affix in the loan application and he signed in the
loan documents, it is evident that the 3rd accused is a
member of the conspiracy. Ext.P16 is the account opening
form in the name of Joseph Mathew (Baby). The 4 th
accused is shown as the person who introduced the account
holder to the bank. Ext.P23 is the consumption loan
agreement in respect of the alleged transaction. The 4 th
accused signed therein also as a witness. So the prosecution
evidence would emphatically support that 4 th accused is also
the member of the conspiracy. As stated earlier Ext.P42
statement given by 4th accused to PW17 which could be
termed as extra judicial confession also positively would
prove the involvement of the 3 rd and 4th accused in the
misappropriation of Rs.1,00,000/- from the said bank, which
still remains as unpaid.
25. PW4 deposed that he was working as Senior
Accountant in Mundiyeruma branch of Idukki District Co-
operative bank and he produced documents before the
Vigilance Dy.S.P. on 14.10.2003. Ext.P26 is the true copy of
page No.256 in ordinary loan ledger kept in that bank and
Ext.P28 is the true copy of the page in current account
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ledger maintained in the name of Joseph in that bank. As
observed by the Special Court, the marking of the said
copies were objected from the side of the accused on the
ground that they were not legally attested. But at the time
of argument how those documents are inadmissible in
evidence not even remotely pointed out. It is seen from the
said ledgers that Rs.1,00,000/- was disbursed towards loan
account of Joseph and the amount was debited from the
current account on 25.01.2001. Ext.P18 is the cheque
dated 25.01.2001 for Rs.1,00,000/- and it was cashed in the
name of Joseph. So the prosecution could prove by
producing documents that Rs.1,00,000/- was disbursed
from the Idukki District Co-operative bank, Mundiyeruma
branch as per the loan sanctioned to Joseph Mathew
(Baby).
26. Criminal conspiracy in terms of Section 120B of
the IPC is an independent offence. The ingredients of the
offence of criminal conspiracy, as laid down by the Apex
Court are:
(i) an agreement between two or more persons;
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(ii) the agreement must relate to doing or causing to
be done either
(a) an illegal act;
(b) an act which is not illegal in itself but is done
by illegal means.
The most important ingredient of the offence being the
agreement between two or more persons to do an illegal
act. In a case where criminal conspiracy is alleged, the
court must inquire whether the two persons are
independently pursuing the same end, or they have come
together to pursue the unlawful object. The former does not
render them conspirators, but the latter does. For the
offence of conspiracy some kind of physical manifestation
of agreement is required to be established. The express
agreement need not be proved. The evidence as to the
transmission of thoughts sharing the unlawful act is not
sufficient. A conspiracy is a continuing offence which
continues to subsist till it is executed or rescinded or
frustrated by choice of necessity. During its subsistence
whenever any one of the conspirators does an act or series
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of acts, he would be held guilty under section 120B of the
IPC.
27. Thus, the gist of the offence under section 120A
is that the agreement between two or more persons to do
or cause to be done an illegal act or a legal act by illegal
means subject to the proviso that the agreement does not
except agreement to commit offence, amount to a
conspiracy unless it is followed by an overt act done by one
or more persons in pursuance of such an agreement. An
agreement to do an illegal act which amounts to a
conspiracy, will continue as long as the members of the
conspiracy remain in agreement and as long as they are
acting in accord and in furtherance of the object for which
they entered into the agreement.
28. It is not necessary that conspirators should know
each and every detail of the plot so long as they are
conspirators in the main object. Participation of all the
conspirators from the very inception of conspiracy is also
not necessary. Unity of purpose and the participation of the
conspirators at different stages are the determinative
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factors.
29. In this context, it is relevant to notice the Objects
and Reasons of the said amendment to understand that the
underlying purpose of introducing section 120A was to
make a mere agreement to do an illegal act or an act which
is not illegal by illegal means, punishable, the same are as
follows:
30. The sections of the IPC which deal directly with
the subject of conspiracy are those contained in Chapter V
and section 121A of the IPC. Under the latter provision, it is
an offence to conspire to commit any of the offences
punishable by section 121 of the IPC or to conspire to
deprive the King of sovereignty of British India or any part
thereof or to overawe by means of criminal force or show of
criminal force the Government of India or any Local
Government and to constitute a conspiracy under this
section. It is not necessary that any act or illegal omission
should take place in pursuance thereof. Under section 107,
abetment includes engaging with one or more person or
persons in any conspiracy for the doing of a thing, if an act
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or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing. In other
words, except in respect of the offences particularised in
section 121A conspiracy per se is not an offence under the
IPC.
31. On the other hand, by the common law of
England, if two or more persons agree together to do
anything contrary to law, or to use unlawful means in the
carrying out of an object not otherwise unlawful, the
persons, who so agree, commit the offence of conspiracy. In
other words, conspiracy in England may be defined as an
agreement of two or more persons to do an unlawful act or
to do a lawful act by unlawful means, and the parties to
such a conspiracy are liable to indictment.
32. Experience has shown that dangerous
conspiracies have entered into India which have for their
object aims other than the commission of the offences
specified in section 121A of the IPC and that the existing
law is inadequate to deal with modern conditions. The
present Bill is designed to assimilate the provisions of the
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IPC to those of the English law with the additional
safeguard that in the case of a conspiracy other than a
conspiracy to commit an offence some overt act is
necessary to bring the conspiracy within the purview of the
criminal law. The Bill makes criminal conspiracy a
substantive offence, and when such a conspiracy is to
commit an offence punishable with death, or rigorous
imprisonment for a term of two years or upwards, and no
express provision is made in the Code, provides a
punishment of the same nature as that which might be
awarded for the abetment of such an offence. In all other
cases of criminal conspiracy, the punishment contemplated
is imprisonment of either description for a term not
exceeding six months or with fine, or with both.
33. Prior to the amendment of the Code and the
introduction of sections 120A and B, the doctrine of agency
was applicable to ascertain the liability of the conspirators,
however, conspiracy in itself was not an offence (except for
certain offences). The amendment had made conspiracy a
substantive offence and rendered the mere agreement to
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commit an offence is punishable. Prior to the amendment,
unless an overt act took place in furtherance of the
conspiracy it was not indictable (it would become indictable
by virtue of being abetment).
34. In the decision reported in [(1999) 5 SCC 253:
AIR 1999 SC 2640:1999 (3) SCR 1], State through
Superintendent of Police, CBI/SIT v. Nalini and
Others, the Apex Court explained that conspiracy results in
a joint responsibility and everything said written or done in
furtherance of the common purpose is deemed to have
been done by each of them. The Court held:
1. Under section 120A of the Indian Penal Code,
1860 offence of criminal conspiracy is
committed when two or more persons agree to
do or cause to be done an illegal act or legal act
by illegal means. When it is a legal act by illegal
means overt act is necessary. Offence of
criminal conspiracy is an exception to the
general law where intent alone does not
constitute crime. It is intention to commit crime
and joining hands with persons having the
same intention. Not only the intention but there
has to be agreement to carry out the object of
the intention, which is an offence. The question
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for consideration in a case is did all the accused
have the intention and did they agree that the
crime be committed. It would not be enough for
the offence of conspiracy when some of the
accused merely entertained a wish, howsoever
horrendous it may be, that offence be
committed.
2. Acts subsequent to the achieving of the object of
conspiracy may tend to prove that a particular
accused was party to the conspiracy. Once the
object of conspiracy has been achieved, any
subsequent act, which may be unlawful, would
not make the accused a part of the conspiracy
like giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It
is rarely possible to establish a conspiracy by
direct evidence. Usually, both the existence of
the conspiracy and its objects must be inferred
from the circumstances and the conduct of the
accused.
4. Conspirators may for example, be enrolled in a
chain- A enrolling B, B enrolling C, and so on;
and all will be members of a single conspiracy if
they so intend and agree, even though each
member knows only the person who enrolled
him and the person whom he enrols. There may
be a kind of umbrella-spoke enrolment, where a
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single person at the centre does the enrolling
and all the other members are unknown to each
other, though they know that there are to be
other members. These are theories and in
practice it may be difficult to tell which
conspiracy in a case falls into which category. It
may however, even overlap. But then there
must be present mutual interest. Persons may
be members of single conspiracy even though
each is ignorant of the identity of many others
who may have diverse roles to play. It is not a
part of the crime of conspiracy that all the
conspirators need to agree to play the same or
an active role.
5. When two or more persons agree to commit a
crime of conspiracy, then regardless of making
or considering any plans for its commission, and
despite the fact that no step is taken by any
such person to carry out their common purpose,
a crime is committed by each and every one
who joins in the agreement. There has thus to
be two conspirators and there may be more
than that. To prove the charge of conspiracy it is
not necessary that intended crime was
committed or not. If committed it may further
help prosecution to prove the charge of
conspiracy.
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6. It is not necessary that all conspirators should
agree to the common purpose at the same
time. They may join with other conspirators at
any time before the consummation of the
intended objective, and all are equally
responsible. What part each conspirator is to
play may not be known to everyone or the fact
as to when a conspirator joined the conspiracy
and when he left.
7. A charge of conspiracy may prejudice the
accused because it forces them into a joint trial
and the court may consider the entire mass of
evidence against every accused. Prosecution
must produce evidence not only to show that
each of the accused has knowledge of the
object of conspiracy but also of the agreement.
In the charge of conspiracy, the court must
guard itself against the danger of unfairness to
the accused. Introduction of evidence against
some may result in the conviction of all, which
is to be avoided. By means of evidence in
conspiracy, which is otherwise inadmissible in
the trial of any other substantive offence
prosecution tries to implicate the accused not
only in the conspiracy itself but also in the
substantive crime of the alleged conspirators.
There is always difficulty in tracing the precise
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contribution of each member of the conspiracy
but then there must be cogent and convincing
evidence against each one of the accused
charged with the offence of conspiracy. As
observed by Judge Learned Hand "this
distinction is important today when many
prosecutors seek to sweep within the dragnet of
conspiracy all those who have been associated
in any degree whatever with the main
offenders".
8. As stated above it is the unlawful agreement and
not its accomplishment, which is the gist of
essence of the crime of conspiracy. Offence of
criminal conspiracy is complete even though
there is no agreement as to the means by which
the purpose is to be accomplished. It is the
unlawful agreement which is the gravamen of
the crime of conspiracy. The unlawful
agreement which amounts to a conspiracy need
not be formal or express but may be inherent in
and inferred from the circumstances, especially
declarations, acts and conduct of the
conspirators. The agreement need not be
entered into by all the parties to it at the same
time but may be reached by successive actions
evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a
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partnership in crime, and that there is in each
conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or
more persons enter into a conspiracy, any act
done by any of them pursuant to the agreement
is, in contemplation of law, the act of each of
them and they are jointly responsible therefore.
This means that everything said, written of
done by any of the conspirators in execution or
furtherance of the common purpose is deemed
to have been said, done of written by each of
them and this joint responsibility extends not
only to what is done by any of the conspirators
pursuant to the original agreement but also to
collateral acts incidental to and growing out of
the original purpose. A conspirator is not
responsible, however, for acts done by a co-
conspirator after termination of the conspiracy.
The joinder of a conspiracy by a new member
does not create a new conspiracy nor does it
change the status of the other conspirators, and
the mere fact that conspirators individually or in
groups perform different tasks to a common
end does not split up a conspiracy into several
different conspiracies.
10. A man may join a conspiracy by word or by
deed. However, criminal responsibility for a
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conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One
who commits an overt act with knowledge of
the conspiracy is guilty, and one who tacitly
consents to the object of a conspiracy and goes
along with other conspirators, standing by while
the others put the conspiracy into effect, is
guilty though he intends to take no active part
in the crime.
35. The law on the issue emerges to the effect that
conspiracy is an agreement between two or more persons
to do an illegal act or an act which is not illegal by illegal
means. The object behind the conspiracy is to achieve the
aim of conspiracy. In order to achieve the ultimate object,
parties may adopt many means. Such means may
constitute different offences by themselves, but so long as
they are adopted to achieve the ultimate object of the
conspiracy, those are also acts of conspiracy. For an offence
of conspiracy, it is not necessary for the prosecution to
prove that conspirators expressly agreed to do an illegal
act, the agreement may be proved by necessary
implication. It is also not necessary that each member of
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the conspiracy should know all the details of the conspiracy.
Conspiracy is a continuing offence. Thus, if any act or
omission which constitutes an offence is done in India or
outside its territory, the conspirators continue to be the
parties to the conspiracy. The conspiracy may be a general
one and a smaller one which may develop in successive
stages. It is an unlawful agreement and not its
accomplishment, which is the gist/essence of the crime of
conspiracy. In order to determine whether the conspiracy
was hatched, the court is required to view the entire
agreement and to find out as in fact what the conspirators
intended to do.
36. Overall evaluation of the evidence would reveal
that, the 3rd accused impersonated Joseph Mathew (Baby)
and put up an application by affixing his photograph in the
place of the photo of the applicant at the connivance of the
4th accused. Ext.P42 would reveal that, it was so done as
instructed by the 1st accused to repay the amount due to
the 4th accused, by creating fake loan application by using
the documents in his custody as that of Joseph Mathew
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(Baby). In fact, the evidence would show the identity of the
3rd and 4th accused in the manner known to law.
37. Coming to proof by opinion evidence as to
handwriting and signature are concerned, as per Section 47
of the Evidence Act, 1872, the Court has to form an opinion
as to the person by whom any document was written or
singed, the opinion of any person aquatinted with the
handwriting of the person by whom it is supposed to be
written or signed that it was or was not written or signed by
that person, is a relevant fact. Explanation to Section 47 of
the Evidence Act provides for three modes of proof. That is
to say, i) a person is said to be acquainted with the
handwriting of another person when he has seen that
person write, or ii) 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 iii) when, in the ordinary
course of business, documents purporting to be written by
that person have been habitually submitted to him.
38. In the instant case, PW17 categorically deposed
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that the 4th accused written Ext.P42 in his presence and
therefore, the evidence of PW17 would come within the
purview of explanation (i) of Section 47 of the Evidence Act.
In view of the above, there is no reason to disbelieve the
evidence of PW17 to attach genuineness to Ext.P42.
Therefore, the contention raised by the learned counsel for
accused Nos.3 and 4 otherwise is found to be
unsustainable.
39. Point Nos.9 and 10:- Thus, it has to be held that
the prosecution successfully established that the 3 rd
accused committed offences punishable under Sections
419, 420, 468 and 471 of the IPC and under Section 120B
of IPC read with 13(2) of the P.C. Act and the 4 th accused
committed offences punishable under Sections 120B read
with 468 and 471 of the IPC and 13(2) of the P.C. Act.
Therefore, the prosecution case is proved beyond
reasonable doubt. Thus, the conviction imposed by the
Special Court does not require any interference. Considering
the facts and circumstances of this case, I am of the view
that some leniency in the matter of sentence can be
considered, as far as the 3rd accused is concerned.
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40. In the result, this appeal stands allowed in part.
The conviction entered into by the Special Court stands
confirmed. Coming to the sentence imposed against the 3 rd
accused, the maximum sentence imposed by the Special
Court, against the 3rd accused is for two years under Section
420 of IPC and Section 120B IPC read with 13(2) of the P.C.
Act. In the interest of justice, I am inclined to modify the
sentence to one year. Thus, the 3rd accused is sentenced to
undergo rigorous imprisonment for one year and pay fine of
Rs.50,000/- (Rupees Fifty Thousand Only) for the offences
under Section 420 of IPC and 120B IPC read with 13(2) of the
P.C. Act. In default of payment of fine, the 3 rd accused shall
undergo rigorous imprisonment/default imprisonment for a
period of three months. Since the sentence imposed by the
Special Court against the 3rd accused for other offences is
one year and below, the same does not require any
interference and the same stands confirmed.
41. Coming to the sentence imposed against the 4 th
accused, the Special Court imposed rigorous imprisonment
for one year for the offences under Sections 120B read with
468 and 471 of the IPC and 13(2) of the P.C. Act. Since the
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sentence lowest minimum, I am not inclined to modify the
sentence against the 4th accused and the same stands
confirmed. The substantive sentence shall run concurrently
and the default sentence shall run separately.
42. The order suspending sentence and granting bail
to the 3rd and 4th accused stands vacated, with direction to
the 3rd and 4th accused to appear before the Special Court,
forthwith, to undergo the modified sentence, failing which,
the Special Court is directed to execute the sentence,
without fail.
Registry is directed to forward a copy of this judgment
to the Special Court, forthwith, for information and
compliance.
Sd/-
A. BADHARUDEEN
SK
JUDGE
