Madras High Court
A.Abdul Aziz vs The State Through on 7 April, 2025
CRL.A(MD).No. 95 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 25.07.2024
Pronounced on : 07.04.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A.(MD).No.95 of 2019
and
Crl.M.P(MD).No.7251 of 2024
A.Abdul Aziz ... Appellant
Vs.
The State through
The Inspector of Police,
CBI:SCB, Chennai,
RC.No.7/S/94/CBI/SCB/MAS ... Respondent
PRAYER: This Criminal Appeal is filed under Section 374 of Cr.P.C., to
call for the records of the Judgment dated 29.01.2019 in C.C.No.10 of
2010 on the file of the II Additional District Court for CBI Cases, Madurai
and set aside the same and acquit the appellant/4th accused.
For Appellant : Mr.T.Lajapathi Roy, Senior Counsel
for Mr.I.Robert Chandra Kumar
For Respondent : Mr.N.Mohideen Basha,
Special Public Prosecutor for CBI
1/52
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
CRL.A(MD).No. 95 of 2019
JUDGMENT
Absconding accused No.4 in mother case in C.C.No.6 of 1998 and
accused in split up case in C.C.No.10 of 2010, on the file of the learned II
Additional District Judge for CBI Cases, Madurai, has filed this appeal
challenging the following conviction and sentence of imprisonment
imposed against him, vide impugned Judgment dated 29.01.2019.
Sl. Offences under Punishment (Imprisonment and Fine)
No. Section
1 120-B r/w 468 of IPC Rigorous Imprisonment for 7 years and
to pay a fine of Rs.25,000/- in default to
undergo Simple Imprisonment for one
year
2 468 of IPC Rigorous Imprisonment for 7 years and
to pay a fine of Rs.25,000/- in default to
undergo Simple Imprisonment for one
year
3 120-B r/w 468 r/w471 Rigorous Imprisonment for 7 years and
of IPC to pay a fine of Rs.25,000/- in default to
undergo Simple Imprisonment for one
year
4 468 r/w 471 of IPC Rigorous Imprisonment for 7 years and
to pay a fine of Rs.25,000/- in default to
undergo Simple Imprisonment for one
year
5 120-B r/w 420 r/w Rigorous Imprisonment for 3-½ years
511 of IPC and to pay a fine of Rs.20,000/- in
default to undergo Simple
Imprisonment for six months
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
6 420 r/w 511 of IPC Rigorous Imprisonment for 3-½ years
and to pay a fine of Rs.20,000/- in
default to undergo Simple
Imprisonment for six months
Total Fine Rs.1,20,000/-
2.Brief facts of the case:
The appellant was originally arrayed as A4 in C.C.No.6 of 1998 on
the file of the II Additional District Court for CBI Cases, Madurai. He and
other accused are said to have committed offence under sections 120 (B)
r/w. 467, 468, 471 and 420 of I.P.C. and section 13 (2) r/w 13 (1)(d) of
Prevention of Corruption Act 1988 r/w Section 511 of IPC. The CBI
registered the case in R.C.No.7/S/94/CBI/SCB/MAS on 11.03.1994 on the
strength of source information alleging that the appellant and other persons
had entered into conspiracy and stealthily removed blank DD book
containing 100 leaves from bank of India, DN Road Branch Bombay in the
year 1992 and 1993 and forged ten DDs for the value of Rs.94,95,000/-
and fraudulently attempted to encash through various banks, situated at
Madurai with the motive to cause loss to the Bank of India, Bombay.
During the investigation, Abdul Aziz absconded. The CBI filed the final
report under Sections 120-B r/w 467, 468, 471 and 420 of IPC, Section
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 r/w Section
511 of IPC showing the appellant as absconding accused. . In the said
final report, the accused G.Thangaswamy, A.Sathyaseelan, Atma Ram
Gopal Satam, have been shown as approvers. The said final report was
taken on file in C.C.No.6 of 1998, on the file of the learned II Additional
District Judge for CBI Cases, Madurai and the array of the accused is as
follows:
A1.N.R.Raveendran,
A2.M.Balasubramanian,
A3. Nana Mahadev Jadav
A4.Abdul Aziz
A5.Salim Siraj Gilani
A6.A.R.Muthukrishnan
2.1.Abdul Aziz was declared as proclaimed offender and hence, the
case was split up in C.C.No.1 of 1999. Thereafter, The trial was continued
in C.C.No.6 of 1998 against the remaining accused, namely, A1, A2, A3,
and A6 and all were convicted by judgment dated 27.12.2002. They had
also filed appeal before this Court in Crl.A.Nos.34 of 2003, 315 of 2003,
384 of 2003 and the same also was dismissed. That being the situation, the
appellant was arrested on the basis of the non-bailable warrant and trial
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
was conducted in split up C.C.No.10 of 2010. the Learned Trial Judge
served upon the appellant copies under section 207 of Cr.P.C., and framed
the charges and questioned the appellant and he denied and pleaded not
guilty and stood for trial.
2.2.The appellant and the other accused were also found to be
indulged in similar fraud and hence, two other final reports were filed
against the appellant and other accused and the particulars of the two other
cases are as follows:
Crime No. Mother Number of the accused Split up
C.C.No C.C.No.
RCNo. 4 of 1998 A1.Raveendran, 8 of 2010
4/S/94/CBI/SCB/ A2.Balasubramanian,
MAS A3. Nana Mahadev Jadav
A4.Abdul Aziz
A5.Salim Siraj Gilani
A6.Muthukrishnan,
RCNo. 5 of 1998 A1.Raveendran, 9 of 2010
5,6,8/S/94/CBI/S A2.Balasubramanian,
CB/MAS A3. Nana Mahadev Jadav
A4.Prakash Ramachandra Payer
A5.Abdul Aziz
A6.Salim Siraj Gilani
A7.V,Ramaswamy
A8.Muthukrishnan,
A9.Asmat Kamal Choudhry @
Hashmat Khan
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
2.3.The learned trial Judge recorded same evidence in all the above
C.C.No.8 of 2010, C.C.No.9 of 2010 and C.C.No.10 of 2010 by
conducting simultaneous trial. In all three cases, the learned trial Judge has
passed the judgment on 29.01.2019. The learned trial Judge has convicted
the appellant in C.C.No.10 of 2010 and C.C.No.8 of 2010 and acquitted
him in C.C.No.9 of 2010. Hence, the appellant preferred this appeal
against conviction and sentence imposed against him in C.C.No.10 of
2010 dated 29.01.2019 and CBI filed appeal against acquittal in C.C.No.9
of 2010.
2.4. In this case ,To prove the charges, prosecution examined P.W.
1 to P.W.18 and marked Ex.P1 to Ex.P20. One of the approver
Sathyaseelan died and other approver could not be traced and in view of
the direction given by the High Court, trial was proceeded by examining
the above eighteen witnesses. The learned trial Judge considered the
evidence on record and convicted the appellant . the learned trial Judge
also considered the evidence on record and acquitted the appellant in
C.C.No.9 of 2010 and convicted the appellant in C.C.No.8 of 2010 .All the
Judgements were delivered on the same day ie., 29.01.2019. Therefore, the
appellant filed two appeals against the conviction in C.C.No.10 of 2010
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
and C.C.No.8 of 2010 . Even though, all the appeals have not emanated
from common FIR, the modus operandi according to the prosecution is the
same and the same evidence was adduced in all three cases. Therefore, the
learned Senior counsel appearing for the appellant would submit that the
finding of the learned trial Judge in C.C.No.9 of 2010 that the prosecution
has not proved the charges beyond reasonable doubt that the appellant
handed over the forged DD as per the allegation in the final report, is
equally applicable to the remaining C.C.No.8 of 2010 and C.C.No.10 of
2010. Per contra, the learned Special Public Prosecutor for CBI would
submit the same argument the other way around way ie., the learned trial
Judge has convicted the appellant in C.C.No.8 of 2010 and C.C.No.10 of
2010 on the basis of the same evidence and erroneously acquitted the
appellant in C.C.No.9 of 2010. In the above back ground, this Court inclines to
decide this appeal on merits on the basis of the evidence adduced in this case.
3.Thiru.T.Lajapathi Roy, the Learned senior counsel for the
appellant made the following submission:-
3.1. The learned trial Judge failed to consider that the approvers
were not examined. Only available evidence against the appellant is the
evidence of the approver. In the said circumstances conviction without
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
examining the approver is not maintainable.
3.2. The conviction has been passed on the basis of the evidence of
the sons of the one of the approvers and without any corroborative
evidence, the same ought to have been set aside.
3.3. The evidence of the sons of the approver namely P.W.1 to P.W.4
are not cogent and trustworthy to pass the conviction against the appellant.
There is a intrinsic contradiction between the evidence of P.W.1 to P.W.4
and their evidence suffers from inherent improbability and hence their
evidence have to be eschewed.
3.4. In the absence of the approver's evidence, the uncorroborated
remaining evidence are not sufficient to convict the accused under the
grave charges of conspiracy to commit the offence under Sections 120 (B)
r/w. 467, 468,471 and 420 of IPC and Section 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act, 1988 r/w Section 511 of IPC.
3.5. According to CBI, FIR was registered against the appellant and
other accused for defrauding the bank fund and the said FIR was
investigated and three final reports were filed. The said three final reports
were taken on file in three C.Cs., with similar allegation but with different
Banks. Among the three CCs, the learned Trial Judge acquitted the accused
in one case. The principle applied in the acquittal case, this case also
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
should havwe ended in acquittal. Therefore the learned trial judge has
committed error in applying different yardstick in this case. Hence, he
seeks to acquit the appellant.
4. Thiru. N.Mohideen Basha, special public prosecutor for CBI,
has made the following submission :
4.1. There is no bar to convict the accused on the basis of the
available evidence which is sufficient to prove the charge framed against
the appellant even in the absence of the examination of the approver. PW1
to PW4 are the sons of the one of the approver Sathiyaseelan. They were
examined as listed witnesses during the course of the investigation. In
view of the availability of Sathiyaseelan during the course of the trial in
the parent case in C.C.No.6 of 1998 and in the course of the trial of the
other accused he was examined. But, in view of the death of the said
Sathiyaseelan, he was not examined as a prosecution witness, but his sons
were examined who have clearly deposed about the material particulars
relating to the active participation of the appellant in the entire crime and
he was the nerve centre of the entire episode of the bank defraud. Apart
from that the prosecution examined the other witnesses to prove the active
participation of the appellant in the entire criminal conspiracy. There are
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
abundant materials to prove the meeting of the appellant with remaining
accused and more particularly his role of facilitating the theft of the blank
DD book from the bank of India, Mumbai Branch and preparation of the
forged DD with signature of the manager in the fictitious name of Priya
Textile and Saravana Textile and the same were handed over to A1 through
the active participation of the accused No.5 Salim Siraji Gillani and
accused No. 6 A.R.Muthukrishnan. The same was encashed with the help
of the A2 Balasubramanian who was employee of the canara bank and the
same was credited in the fictitious account of A1 opened in the name of
Deepa Traders and the said credited amount was withdrawn and the same
was appropriated and shared among the accused including the appellant.
Therefore, the conviction was passed on the basis of the material produced
by the CBI. Hence, there is no need to interfere with the conviction. More
particularly there was no explanation on the side of the appellant during
the course of the questioning under section 313 of Cr.P.C.
4.2.The prosecution is unable to examine two approvers. One of the
approvers died and the other approver could not be secured inspite of the
bonafide steps taken by the CBI. They were examined in the year 1994 and
they were treated as approvers and their 164 of Cr.P.C statements were
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
marked. Inadvertently, their evidence recorded during the parent case in
C.C.No.6 of 1998 in the absence of the appellant were not marked. There
was no legal bar to base reliance on the said evidence since the same forms
part of this proceedings i.e., present split up C.C.No.10 of 2010 is
continuation of the parent case in C.C.No.6 of 1998 Therefore, the CBI
filed the application under 391 and the same has to be considered. So in all
aspects the prosecution clearly proved the charges framed against the
appellant and the punishment was imposed proportionate to the gravity of
the offence namely they had stolen the DD books from the Bank of India,
Mumbai Branch, fabricated the DD in the fictitious name, M/s.All Bless
Associates and attempted to encash the amount of Rs.94,95,000/- in Bank
of India, Madurai, and the same was aborted. The account in the name of
Deepa traders which is fictitious one is said to have been opened by the A1
and the cash was credited in the fictitious account in the branch of Canara
Bank, Gnanaolipuram, Madurai and the same was withdrawn and amount
was appropriated and shared by the accused. Therefore, the prosecution
clearly proved the charges and the same deserves appropriate punishment
as imposed by the learned trial judge. Therefore he seeks to confirm the
judgment.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
5. This Court considered the rival submissions made by the learned
counsel appearing on either side and perused the materials available on
record and the precedents relied upon by them.
6. Now, the only question to be decided in this appeal is whether the
impugned judgment of conviction against the appellant/absconding
accused/A4 in split up C.C.No.10 of 2010 is correct?
7. In this case, the appellant was shown as absconding accused in the
final report and the CBI was unable to secure him before the trial.
Therefore, he was treated as absconding accused and declared as
proclaimed offender. Thereafter, the trial was split against him from the
mother case in C.C.No.6 of 1998. In the mother case in C.C.No.6 of 1998
two approvers had been examined by the prosecution to prove the case.
Due to the abscondance of the said appellant, the said trial was conducted
in his absence. After arrest of the appellant, the trial was conducted against
him in the above split up C.C.No.10 of 2010. During the interregnum
period, one of the approver, namely, Sathiyseelan died and other approver
could not be located. But their evidence in the mother case in C.C.No.6 of
1998 are available. During the course of the trial of the split up C.C.No.10
of 2010, the prosecution examined only sons of the said one of the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
approver, namely, Sathiyaseelan to prove the active participation of the
appellant herein in the entire episode and other witnesses also were
examined to prove the complicity of the appellant in the crime.
7.1.Thiru.T.Lajapathi Roy, the Learned Senior counsel would make
preliminary submission whether the conviction can be passed against the
appellant without examination of two approvers who had been examined
during the trial of the remaining accused in mother case in C.C.No.6 of
1998. Hence, this Court asked the learned Special Public Prosecutor
appearing for CBI, Thiru.N.Mohideen Basha to address the said issue. The
learned Special Public Prosecutor would submit that this is the
continuation of the proceedings of mother case in C.C.No.6 of 1998. The
appellant is proclaimed offender and therefore, evidence was recorded in
his absence as per the procedure stated in Sections 317 of Cr.P.C. and 299
of Cr.P.C. There was no bar to record the evidence in the absence of
proclaimed offender. Apart from the above fact, in this case, one of the
approvers, namely, Sathiyaseelan died and another approver was not
traceable. In view of the direction of the Higher Court to complete the trial,
the prosecution examined the remaining witnesses whose evidence are
sufficient to convict the appellant. Therefore, according to the learned
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
Special Public Prosecutor, there was no bar to rely the evidence of the
approver recorded in the mother case in C.C.No.6 of 1998 in the absence
of the appellant. Thiru.T.Lajapathi Roy, the Learned Senior counsel by way
of reply submitted that the prosecution has not secured the appellant during
the course of the investigation and the prosecution's application under
section 174 (A) of IPC to frame the additional charges against the
appellant for his abscondance had been dismissed by the learned trial judge
in Crl.M.P.No.1113 of 2017 and therefore, the recording of the evidence of
the approver in his absence cannot be used against him in the split up trial,
that too without marking the said evidence of the approver. At this stage,
the CBI filed the application in Crl.M.P.No.7251 of 2024 in this appeal
before this Court under Section 391 of Cr.P.C., to receive the deposition of
the approver, namely, Sathiyaseelan and Thangasamy, which had been
recorded in the mother case in C.C.No.6 of 1998 for proper adjudication of
the confirmation of the conviction and sentence imposed against the
appellant in the split up C.C.No.10 of 2010 which is the subject matter of
the present appeal. The appellant filed the counter with prayer to reject this
application on the ground that when the petition prosecution filed to frame
the additional charges under section 174 (A) of I.P.C. as against the
appellant was dismissed, he cannot be declared as a proclaimed offender
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
and hence the recording evidence in his absence and use of the said
evidence is not permissible and therefore, he seeks to dismiss the
application and he relied the judgment of the Hon’ble Supreme Court in
the case of Ajith Singh Chehuji Rathod Vs State of Gujarat, the case of
Rajeshwar Prasad Mishra Vs State of West Bengal, the case of AT
Mydeen Vs Assistant Commissioner of Customs (Criminal appeal No.
1306 of 2021) and also in Nrimal Singh Vs State of Harayana reported in
2000 (4) SCC 41, 2024 INSC 384,
8. This Court considered the rival submission made by the both
parties in respect of the said Crl.M.P.No.7251 of 2024 filed under section
391 of Cr.P.C. to receive the deposition of the approver, namely,
Sathiyaseelan and Thangasamy who had been examined in the mother
C.C.No.6 of 1998 on account of the absence of the appellant by splitting
the said mother case in C.C.No.6 of 1998 against the appellant.
9. To address the said issue, This Court considered Sections 273 of
Cr.P.C., 299 of Cr.P.C., 317 of Cr.P.C., and Section 33 of the Indian
Evidence Act, and the principle laid down by the Hon'ble Supreme Court
in the case of Nirmal Singh vs. State of Haryana reported in 2000 (4) SCC
41, 2024 INSC 384, and the Rule 16 to 20 Criminal Rules of Practice
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
1958.
9.1. To further discussion, it is relevant to extract the provision of
Sections 273, 299 and 317 of Cr.P.C., and Rules 16 to 20 of the Criminal
Rules of Practice, 1958.
9.2.The Criminal Rules of practice and Circular Orders, 1958
provides for dealing with cases where the accused persons have
absconded. It will be relevant to extract Rules 16 to 20 hereunder :
16. Case in which accused has absconded - When
process has been issued for the attendance of the accused, but
the case has remained pending for a long time owing to his
non-appearance, and the Magistrate is satisfied that the
presence of the accused cannot be secured within a reasonble
time, or when an accused person found to be of unsound mind
is released under Section 466(1) or detained in safe custody
under Section 465 (2) of the Code, the Magistrate shall report
the case for the orders of the District Magistrate, through the
Sub-Divisional Magistrate, if any, and the District Magistrate
may, if he thinks fit, order that the case shall be removed from
the register of cases received and omitted from the quaterly
returns. The case shall, however, then be entered in a separate
register of long pending cases which shall be maintained by
all Magistrates in Administrative Form No.26:
Provided that if the charge is withdrawn, or if the accused
is reported dead, whether that be before or after the entry in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
the register of long pending cases, the case should be
closed :
Provided further that if the District Magistrate is of opinion
that the case against the absent accused is wholly false, he
may direct that the case be omitted from the registers and the
returns altogether, and he may, at any subsequent time, order
the case to be entered in the register of long pending cases.
17. Cases in which some of the accused have
absconded:
When there are several accused persons in a case, and only
some of them have appeared or been produced before the
Court, if the Magistrate is satisfied that the presence of other
accused cannot be secured within a reasonable time,having
due regard to the right of such of the accused as have
appeared to have the case against them enquired into
without delay, he shall proceed with the case as against such
of the accused as have appeared and dispose of it according
to law. As regards the accused who have not appeared, he
shall give the case a new number and enter it in the register
of cases received, and if it remains pending for a long time
and efforts to secure the presence of the accused have failed
and the case against the accused who have appeared has
been disposed of, the Magistrate shall report the whole
matter as regards all the accused to the District Magistrate
through the Sub - Divisional case against the absent accused
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
be removed from the "Register of long pending cases", or if
the District Magistrate is of opinion that the case against the
absent accused is wholly false, he may direct that the case be
omitted from the register and the returns altogether,
provided that he may, at any subsequent time order the case
to be entered in the register of long pending cases.
18. Procedure to be observed before transfer of a case
to the register of long pending cases: Before directing the
transfer of a case other than a case dealt with under Section
466 (1) or (2) of the Code to the "Register of long pending
cases", the District Magistrate shall satisfy himself that all
reasonable steps have been taken to follow the procedure
prescribed in Sections 87 and 88, and also, when
practicable, that provisions of Section 512 of the Code have
been complied with.
19. Procedure on appearance or production of
accused: If subsequently the absent accused or any of them
are produced or appear before the Magistrate, or the
accused who was insane ceases to be insane, the case
against them shall be registered under a new number.
20.Cases where an accused has absconded
after appearance - Rule Nos.16 to 19 shall apply, as far
as may be, to cases where an accused person has
appeared, but had subsequently absconded.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
299. Record of evidence in absence of accused. Section 317 Cr.P.C. Provision for
inquiries and trial being held in the
absence of accused in certain cases.
(1)If it is proved that an accused person has absconded, (1)At any stage of an inquiry or trial
and that there is no immediate prospect of arresting him, under this Code, if the Judge or
the Court competent to try [or commit for trial such Magistrate is satisfied, for reasons to be
person for the offence complained of, may, in his absence, recorded, that the personal attendance of
examine the witnesses (if any) produced on behalf of the the accused before the Court is not
prosecution, and record their depositions and any such necessary in the interests of justice, or
deposition may, on the arrest of such person, be given in that the accused persistently disturbs the
evidence against him on the inquiry into, or trial for, the proceedings in Court, the Judge or
offence with which he is charged, if the deponent is dead Magistrate may, if the accused is
or incapable of giving evidence or cannot be found or his represented by a pleader, dispense with
presence cannot be procured without an amount of delay, his attendance and proceed with such
expense or inconvenience which, under the circumstances inquiry or trial in his absence, and may,
of the case, would be unreasonable. at any subsequent stage of the
proceedings, direct the personal
(2)If it appears that an offence punishable with death or
attendance of such accused.
imprisonment for life has been committed by some person
or persons unknown, the High Court or the Sessions Judge (2)If the accused in any such case is not
may direct that any Magistrate of the first class shall hold represented by a pleader, or if the Judge
an inquiry and examine any witness who can give evidence or Magistrate considers his personal
concerning the offence and any depositions so taken may attendance necessary, he may, if he thinks
be given in evidence against any person who is fit and for reasons to be recorded by him,
subsequently accused of the offence, if the deponent is dead either adjourn such inquiry or trial, or
or incapable of giving evidence or beyond the limit of order that the case of such accused be
India. taken up or tried separately.
9.3. Considering the above provision of Cr.P.C., Rules of Practice,
and the principles laid down by the Hon'ble Supreme Court, it is clear that
there is no bar to rely the evidence of any witnesses recorded in the
absence of the absconded accused in the subsequent trial against the
absconding accused either under 299 of Cr.P.C. or any other provision of
Cr.P.C. provided the court is satisfied with the following conditions:
9.3.1. If it is proved that an accused person has absconded, and there
is no immediate prospect of arresting him.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
9.3.2. If any of the above condition is satisfied, the prosecution has
no bar to record the evidence in his absence.
9.3.3. Before the subsequent trial against the absconded accused if
any of the witness died or incapable of giving evidence or cannot be found
or his presence cannot be procured without any amount of delay, his
evidence recorded in the course of the mother trial shall be used against
him.
10. In this case a valid proclamation was made against the appellant
as proclaimed offender and he has not challenged the said proclamation.
The CBI was unable to trace him during the trial and hence the mother case
in C.C.No.6 of 1998 was split into C.C.No.10 of 2010 against the appellant
and evidence was recorded and his case was treated as “LPC” case (Long
pending cases as per the above rules) and case was split against remaining
accused in mother case in C.C.No.6 of 1998 and the same ended in
conviction. During the course of the said trial, approvers were examined.
As against one of the absconding accused also a separate trial was
conducted and during the said course of trial also approvers were
examined. Only during the present trial, one of the approvers died and the
other approver was unable to be secured by the prosecution. The
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
occurrence took place in the year 1993 and the approver was examined by
CBI in the year 1994 and they were very much available till 2010 and only
during examination of witness in the year 2017 in this split up case against
the appellant, they were not available. In the said circumstances, the
application filed under section 391 of Cr.P.C. to mark the deposition of the
approver recorded in the mother case in C.C.No.6 of 1998 is very much
essential and necessary to decide the role of the appellant. Section 391 is
enabling section in order to secure the ends of justice and to avoid the
miscarriage of justice. The CBI has not newly introduced the said witness
in the course of the appeal. The deposition of the approver PW1 and PW2
were recorded during the course of the trial of the mother case in C.C.No.6
of 1998. The present C.C.No.10 of 2010 is continuation of the proceedings
of mother case in C.C.No.6 of 1998. Further under section 299 of Cr.P.C. it
is clearly stated that recording of the evidence in the absence of the
accused in special circumstances is permitted. Therefore, the present case
comes under such special circumstances.
10.1. In the case of State of Gujarat v. Mohanlal Jitamalji Porwal,
reported in (1987) 2 SCC 364 at page 370 the Hon'ble Supreme Court has
held as follows:
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
5.... To deny the opportunity to remove the formal defect was
to abort a case against an alleged economic offender. Ends of
justice are not satisfied only when the accused in a criminal
case is acquitted. The community acting through the State and
the Public Prosecutor is also entitled to justice. The cause of
the community deserves equal treatment at the hands of the
court in the discharge of its judicial functions. The community
or the State is not a persona-non-grata whose cause may be
treated with disdain. The entire community is aggrieved if the
economic offenders who ruin the economy of the State are not
brought to book. A murder may be committed in the heat of
moment upon passions being aroused. An economic offence is
committed with cool calculation and deliberate design with
an eye on personal profit regardless of the consequence to the
community. A disregard for the interest of the community can
be manifested only at the cost of forfeiting the trust and faith
of the community in the system to administer justice in an
even-handed manner without fear of criticism from the
quarters which view white collar crimes with a permissive eye
unmindful of the damage done to the national economy and
national interest. The High Court was therefore altogether
unjustified in rejecting the application made by the learned
Assistant Public Prosecutor invoking the powers of the Court
under Section 391 of the Code of Criminal Procedure. We are
of the opinion that the application should have been granted
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
in the facts and circumstances of the case with the end in view
to do full and true justice....
10.2. In the case of CBI v. Abu Salem Ansari reported in (2011) 4
SCC 426 the Hon'ble Supreme Court has held as follows:
5. As regards the first respondent, sub-section (1) of
Section 299 would apply as he, an accused person, was
absconding, his case is already split up and has to undergo
the trial. Obviously, the evidence adduced in the earlier trial
cannot be used against the first respondent except as provided
in sub-section (1) of Section 299 CrPC. In the circumstances
if the absconding accused appears again, the prosecution
witnesses have to be examined afresh. But, if the deponent is
dead or incapable of giving evidence or cannot be found or
his presence cannot be procured without an amount of delay,
expense or inconvenience, the prosecution would be justified
in relying on the evidence already on record taken in the
earlier trial in the absence of the absconding accused.
10.3. In the case of Sukhpal Singh Vs NCT of Delhi reported in
2024 SCC OnLine SC 800 the Hon'ble Supreme Court has held as follows:
“31. Sub-section (1) of Section 299 CrPC is in two
parts, the first part provides for proof of jurisdictional fact in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
respect of abscondence of an accused person and the second
that there was no immediate prospect of arresting him. In the
event, an order under the said provision is passed,
deposition of any witness taken in the absence of an accused
may be used against him if the deponent is dead or incapable
of giving evidence or cannot be found or his presence cannot
be procured without any amount of delay, expense or
inconvenience which, under the circumstances of the case,
would be unreasonable.”
“39. Viewed in light of the provisions of
Section 299 CrPC read with Section 33 of the Indian
Evidence Act, 1872 as interpreted by this Court in the case
of Nirmal Singh (supra) and Jayendra Vishnu
Thakur (supra), the trial Court was justified in holding that
the statement of Ashok Kumar Pathak recorded in these
proceedings was fit to be read as a piece of substantive
evidence. We concur with the findings recorded by the trial
Court and affirmed by the High Court on this vital aspect of
the matter.”
10.4. Further, it is the duty of the accused to be present during the
trial. In spite of his knowledge about the trial, he did not appear and
voluntarily waived his right of presence during the trial, hence he cannot
be allowed to turn around and say that proper procedure was not followed
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
by the Court and he lost the opportunity of fair trial. The Hon'ble Supreme
Court also reiterated the principle that no one can be allowed to take
advantage of his own wrong. Further, the Hon'ble Supreme Court in the
case of State of M.P. v. Narmada Bachao Andolan, reported in (2011) 7
SCC 639 has dwelt upon the principle by taking note of following latin
maxim to meet out an impossible situation:
Legal maxim Meaning
lex non cogit ad impossibilia the law does not compel a man to do what he cannot
possibly perform
impossibilium nulla obligatio est the law does not expect a party to do the impossible
impotentia excusat legem There is a necessary or invincible disability to perform
the mandatory part of the law or to forbear the
prohibitory
nemo tenetur ad impossibilia no one is bound to do an impossibility
10.5. In view of the death of one of the approvers and non-
availability of the other approver, this Court inclines to apply the principle
that the law does not compel a man to do what he cannot possibly perform
and law does not expect a party to do the impossible and no one is bound
to do impossibility and allowed the application filed by the prosecution to
rely the evidence of the approver recorded, on account of the his
intentional abcondence.
10.6. In the case of the absconding accused, the said procedure is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
followed all over the world. The Hon'ble House of Lords in 2002 (2) ALL
ER 113 R vs. Jones, held as follows:
“Where a criminal defendant of full age and sound
mind, with full knowledge of a forthcoming trial, voluntarily
absented himself, there was no reason in principle why his
decision to violate his obligation to appear and not to
exercise his right to appear should have the automatic effect
of suspending the criminal proceedings against him until
such time. If ever, as he chose to surrender himself or was
apprehended. If he voluntarily chose not to exercise his right
to appear, he could not impugn the fairness of the trial on
the ground that it had followed a course different from that
which it would have followed had he been present and
represented. Moreover, there was nothing in the
jurisprudence of the European Court of Human Rights to
suggest that a trial of a criminal defendant held in his
absence was inconsistent with the Euroean Convention for
the Protection of Human Rights and Fundamental Freedoms
1950 (as set out in Sch 1 to the Human Rights Act 1998).
Accordingly, the Crown Court did have a discretion to
conduct a trial in the absence, from its commencement, of
the defendant. That discretion should, however be exercised
with the utmost care and caution. If the absence of a
defendant were attributable to involuntary illness or
incapacity, it would very rarely, if ever, be right to exercise
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
the discretion in favour of commencing the trial, at any rate
unless the defendant was represented and had asked that the
trial should begin. The seriousness of the offence was not a
matter which was relevant to the exercise of the discretion.
The judge's overriding concern was to ensure that the trial,
if conducted in the absence of the defendant, would be as
fair as circumstances permitted, and lead to a just
outcome.”
10.7. The right of an accused to watch the prosecution witnesses
deposing before a court of law indisputably is a valuable right. However,
same is only a statutory right and has not yet been accepted as fundamental
right in a case where accused had absconded within the meaning of Article
21 of Constitution of India. As a sequel, right to confront a witness by an
absconding accused is not a fundamental right. Even otherwise,
fundamental rights are not absolute being subject to reasonable
restrictions. The right of confronting by an accused is subject to just
exceptions. In the event of abscondance for long years with intention to
cause natural death to the witnesses is an exceptional circumstance to
decline the right of confronting by accused. The prosecution has no other
option except to mark the said deposition on the ground that one of the
approvers died and another approver was not able to be located in spite of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
the best efforts taken by the CBI. From the perusal of the records, the steps
taken by the CBI to produce the said approver and their failure to secure
the said witness is not malafide. In the earlier two proceedings, i.e., during
the course of the mother case of the trial in C.C.No.6 of 1998 and during
the course of the case against another absconding accused, the CBI in all
fairness have examined the said approver. Since they were not available,
they were unable to examine them in this case. To meet the said situation,
the various provision of the Cr.P.C namely, Sections 299, 317 and 391 are
available. The CBI correctly relied the said provisions and filed the
application. The deposition of the Sathiyaseelan in the mother case in
C.C.No.6 of 1998 is admissible in evidence and even in the precedents
relied by the learned counsel for the appellant, the Hon’ble Supreme Court
has held that in the special circumstances the evidence of the witness can
be marked as a document after their death in the subsequent trial.
Therefore, this Court inclines to accept the application filed by the CBI
under section 391 of Cr.P.C., to receive the evidence of the approver
recorded in the mother case in C.C.No.6 of 1998 by rejecting the
contention of the appellant that the said application can not be accepted in
view of the dismissal of the application of the CBI to frame the additional
charge against the Respondent under section 174 (A) of I.P.C.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
10.8. Accordingly, the application filed by the CBI in Crl.M.P.No.
7251 of 2024 stands allowed.
11. During the year 1992 – 1993, the appellant, Girish Kumar Shiv
Shankar Jani (died), Armaram Gopal Satam, N.R.Raveendran,
M.Balasubramanian, Nana Mahadev Jadav, Prakash Ramachandra Payer,
Salim Siraj Gillani, V.Ramaswamy, A.R.Muthukrishnan and Asmat Kamal
Choudhry @ Hashmat Khan entered into a criminal conspiracy to cheat the
“Bank of India DN Road Branch, Bombay” and “Bank of Maharastra,
Ghatkoper East Branch, Bombay” and in furtherance of the said
conspiracy, Nana Mahadev Jadav who was working as sub-staff in Bank
of India DN Road Branch, Bombay committed theft of one blank DD book
containing serial No.008901 to 009000. Similarly, Prakash Ramachandra
Payer who was working as sub-staff in Bank of Maharastra, Ghatkoper
East Branch, Bombay has committed theft of one blank DD book
containing serial No.536901 to 537000. Both Nana Mahadev Jadav and
Prakash Ramachandra Payer entrusted the said DD books to the appellant
and Salim Siraj Gillani through Atma Ram Gopal Satam Grishkumar
Shivsankar Jani, Prahalad Shiv Kumar Tiwari and Asmath Kamal
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
Choudhary. Accused Muthukrishnan along with his relative of approver
G.Thangaswamy met the appellant and Salim Siraj Gillani in Mumbai and
discussed about the opening of the fictitious account in Madurai and
encashment of demand draft. Thereafter, the accused Muthukrishnan and
G.Thangaswamy met the another approver Sathyaseelan in Madurai at his
house and had a discussion with N.R.Raveendran and Balasubramanian
about the opening of the fictitious account. Thereafter, the forged demand
draft was passed on to N.R.Raveendran through Muthukrishnan and
presented in various fictitious accounts opened in the name of various
fictitious names by N.R.Raveendran and with the active connivance of
Balasubramanian, A.R.Muthukrishana, V.Ramasamy and amount was
credited in the account of N.R.Raveendran on the basis of the forged
Demand Draft and the same was withdrawn by N.R.Raveendran and the
amount was appropriated by the respondent, Salim Siraj Gillani and the
other accused. In this case, there was an attempt to encash the total
amount of Rs.94,95,000/- on the basis of ten forged DDs of “Bank of
India, Bombay”.
11.1. A5 (Salim Siraj Gillani) and A4 (Abduls Aziz) are the kingpins
of the said act of bank fraud. A4 and A5 met the remaining above stated
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
persons including the approvers and the other witnesses examined on the
side of the prosecution and explained their intention of the black money of
the some non resident Indians through the transfer of the demand draft in
the bank of the Tamilnadu. Both A5 and A4 instructed deceased Girish
Kumar Shivasankar Janai, A3 Nana Mahadev Jadev, Prakash Ramachandra
Payer to commit theft of demand draft book bearing serial Nos.008901 to
009000 from the bank of India DN Road Branch, Mumbai. Demand draft
book bearing serial Nos.536901 to 537000 from “the Bank of Maharastra,
Ghatkopar East Branch, Mumbai”. Thereafter, they had stolen the DD
book and handed over to the appellant. The appellant received the same
and forged the said DD by forging the signature of the manager of the bank
officers of Mumbai and attempted to encash a sum of Rs.94,95,000/- in the
name of fictitious account, namely, “All Bless Associates.The said
attempted to encash the amount of Rs.94,95,000/- was aborted. “All Bless
Associates” at Allahabad Bank, Madurai Branch, with active assistance of
A2. As per the conspiracy, they presented the following forged DDs, in the
said account for collection on 10.05.1993.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
Sl. Demand Amount (in
Date of issue Favouring
No. Draft No. Rs.)
1 008910 05.05.1993 9,55,000/- National Textiles
2 008911 05.05.1993 9,75,000/- Hanifa Textiles
3 008912 05.05.1993 9,83,000/- Prethi Textiles
4 008913 05.05.1993 9,48,000/- Kanjan Textiles
5 008914 05.05.1993 9,94,000/- Kamal Textiles
6 008915 05.05.1993 9,76,000/- Mahaveer Textiles
7 008916 05.05.1993 8,95,000/- Surya Textiles
8 008917 05.05.1993 9,32,000/- Sarika Textiles
9 008918 05.05.1993 9,27,000/- Sarada Textiles
10 008919 05.05.1993 9,10,000/- Bharathi Textiles
11.2. P.W.2 and P.W.3 gave evidence before the Court about the
active participation of Abdul Aziz . P.W.2 and P.W.3 deposed as follows:
P.W.2: PW3
Kk;igapypUe;J Abdul Aziz vdJ jk;gp n[ar;re;jpud; Kk;ig
%ykhf DD-fs; te;jJ. me;j nry;tjw;F Aziz f;Fk; kw;Wk; ,uz;L
DD-fis Kj;Jf;fpU~\zDk;> egh;fSf;Fk; fhkuh[h; rhiyapy; cs;s
jq;frhkpAk; vd; je;ijaplk; Travelok vd;w Vn[d;rpapy; tpkhdr;
nfhLj;jhh;fs;;. me;j DD-fis rPl;Lf;fs; thq;fp te;jhh;. Me;j
utPe;jpuDk; ghyRg;gpukzpaDk; tpkhdrPl;Lf;fis Nfd;ry; nra;J tUkhW
thq;fpr; nrd;W tq;fpapy; Encash vd; je;ij vd;dplk; $wpdhh;. Mjd;gb
nra;jhh;fs;. me;j gzj;ij tpkhdr;rPl;Lf;fis Nfd;ry; nra;J gzj;ij
vq;fs; tPl;bw;Ff; nfhz;L vd; je;ijaplk; nfhLj;Njd; DD f;fs;
tUthh;fs; me;j gzj;ij NghypahdJ vd;Wk;> Ngq;fpy;
thq;fpr; nry;tjw;F vjphp Abdul gpur; rpidahf ,Uf; f pwJ vd;W
Aziz vq;fs; tPl;bw;F te;jpUe;jhh;. ghyRg; g pukzpad; vd; je; i japlk; $wpdhh; .
11.3. The said evidence was never challenged in the cross
examination of the appellant. Unchallenged evidence is admissible and
relevant to decide the culpability of the accused. The unchallenged
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
evidence remains admissible. If any portion of the deposition of the
prosecution witness is not challenged by way of cross examination in the
manner known to law, the said portion of the evidence can be a base for
conviction as held by the Hon'ble Three Judges Bench of the Supreme
Court in the judgment reported in 2021 (11) SCC 1. The above witness was
examined during the investigation and their 164 Cr.P.C., statement also
was obtained and they also deposed cogently about the involvement of the
appellant. It is also settled principle that prosecution need not examine all
witnesses to prove a particular fact. Quality of witness is material and not
quantity of witnesses. The above two witnesses, namely, sons of the
deceased approver clearly deposed about the involvement of the appellant
in the calculated conspired act of defrauding the Bank. The entire events
were cogently deposed by P.W.2, P.W.3. Their evidence also corroborated
with other evidence and materials circumstances proved by the
prosecution.
11.4. PW6 officer of the Bank of India, Bombay at the relevant point
of time has deposed about the forged signature in the forged DD marked
under Ex.P5 and Ex.P6 and he further deposed that the DDs were not
issued by the said Branch. In the said DD also particulars were written in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
hand and not typed. PW7 deposed that he was working in the Bank of
India Madurai Branch at relevant point of time and stated that payment
advice was not received and hence he suspected and contacted Bombay
office. Thereafter they found that said Ex.P5 was forged. PW5 vigilance of
the officer of Bombay Branch deposed about missing of DD book bearing
S.No.008901 to 009000 containing 100 leaves. Out of 100 leaves sixteen
demand draft were paid for the value of Rs.5728000/-. Ten DDs for the
amount of Rs.94,75,000/- were presented in the Allahabad Bank Madurai
Branch and the same was found to be forged.
11.5. PW9 and PW11 the learned Judicial Magistrates recorded the
approver statement under section 164 of Cr.P.C. by following the
procedure and the same was marked under Ex.P.17, Ex.P.18 and Ex.P19.
They also deposed about the contents of the Ex.P.17, Ex.P.18 and Ex.P.19
The said documents also contain the order of tender of pardon. The
accused never disputed the procedure followed by the learned Judicial
Magistrate and the never raised the noncompliance of legal procedure.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
Exhibits Description of documents
Ex.P17 Petition filed before the Additional Chief Judicial Magistrate
Madurai along with 164 Cr.P.C. Statement of Sathiyaseelan and
306 Cr.P.C. Proceedings (26 sheets)
Ex.P18 Petition filed before the Additional Chief Judicial Magistrate
Madurai along with 164 Cr.P.C. Statement of Atmaram Gopal
Sattam and 306 Cr.P.C. Proceedings (53 sheets)
Ex.P.19 Petition filed before the Additional Chief Judicial Magistrate
Madurai along with 164 Cr.P.C. Statement of Thangasamy and
306 Cr.P.C. Proceedings (22 sheets)
The above available evidence clearly proved the appellant's predominant
role in the entire episode. His active participation in inducing A3 to steal
the DD from the Bank of India Bombay and receiving the said stolen DD
book and forging the signature of the officer of Bank of India Bombay and
preparation of the forged DD and handing over the same to A1 through A6
and presentation of the said Ten forged DDs in the fictitious account
opened and operated by A1 in the name of All Bless Associates” at
Allahabad Bank, Madurai Branch and same was aborted.
11.6. From the above material, it is clear that the prosecution proved
the charge against appellant and the same was properly considered by the
learned Trial Judge. The prosecution established the circumstances to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
prove the involvement of the appellant in the larger conspiracy to defalcate
the bank amount. As held by the Hon’ble Supreme Court, it is not
necessary to prove the role of the each accused at every stage of the entire
conspiracy. It is settled principle that if the involvement of the conspirator
in any of the events of the chain is proved they are liable to be convicted.
The Hon'ble Supreme Court in the case of Ram Narayan Popli vs. Central
Bureau of Investigation reported in 2003 3 SCC 6341 has held as follows:
The essence of a criminal conspiracy is the
unlawful combination and ordinarily the offence is
complete when the combination is framed. Law making
conspiracy a crime is designed to curb immoderate
power to do mischief which is gained by a combination
of the means. The encouragement and support which co-
conspirators give to one another rendering enterprises
possible which, if left to individual effort, would have
been impossible, furnish the ground for visiting
conspirators and abettors with condign punishment.
11.7 In the case of Aravind Singh Vs. State of Maharashtra reported
in 2021 (11) SCC 1, the Hon'ble Three Judges Bench considered the entire
gamut of conspiracy and has reiterated the principle laid down in the Para
662 of “Nalini case”
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
“662. … It is not necessary that all the conspirators should
participate from the inception to the end of the conspiracy; some
may join the conspiracy after the time when such intention was first
entertained by any one of them and some others may quit from the
conspiracy.
12. The appellant is the main man and he intentionally absconded
from the legitimate prosecution till the death of the approvers. Now the
prosecution marked the deposition the Approver evidence of P.W.
1(Thangasamy) and P.W.2(Sathyaseelan) in the mother C.C.No.6 of 1998
marked as additional document in this appeal. This Court not only received
the deposition of the approvers evidence recorded during his absence after
proclamation duly made as absconding accused, and this Court has every
reason to accept the said approvers evidence. The approver's evidence and
the documents clearly proved the involvement of the respondent in the
entire conspiracy. His involvement in obtaining the blank DD from the
approver and the remaining accused and forgery of the signature of the
manager of the said bank and handing over the said forged DD to A1
through the approver and other witnesses and the presenting of the said
DDs in the fictitious account opened by A1 in Bank of India, Madurai and
credit of the said amount in the said account and attempted to withdraw the
said amount, all have been proved.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
13. From the approver's evidence in mother C.C.No.6 of 1998,
namely, Thangasamy, it is clear that the appellant and one of the
absconding accused Salim Siraj Gilani are close friends and they had
residence in Mumbai at the relevant point of time of the occurrence. P.W.
1 also resided in Mumbai at the relevant point of time and he had
acquaintance with the said appellant and Salim Siraj Gilani. At that time,
the appellant had informed about his plan to convert the black money of
the non residential Indians (NRI) into white money through the fictitious
demand draft transaction in the accounts of some account holders of Tamil
Nadu, for which proper commission amount would be given. Salim Siraj
Gilani informed that the appellant had acquaintance with the number of the
bank officials in the Tamil Nadu and he would facilitate the said demand
draft transaction. On the said assurance, PW1 contacted his relative
Muthukrishnan who had residence at Thoothukudi and PW1 also informed
about the 10% commission. The said Muthukrishnan came to Mumbai and
met the appellant and Salim Siraj Gilani in the presence of the P.W.1.
Thereafter, Muthukrishnan contacted A1 Raveendran and informed about
the above transaction. A1 Raveendran opened the account in the Canara
Bank, Ramnad Road Branch, Madurai with the help of the A2
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
Balasubramanian who was none other than the clerk of the Canara Bank
and Sathiyaseelan. Approver and other accused went to the residence of
A2 and they got introduction. On 05.02.1993 at Mumbai, Mathina lodge
the respondent asked to get the DD payable at Madurai in the Bank of
India TN Road Branch, Mumbai and they obtained DD for the value of
Rs.1000/- the said DD was handed over to the respondent and Salim Siraj
Gilani in the Mathina lodge. In the said DD they forged the name of the
drawer and the same was marked Ex.P1 to Ex.P4 on the basis of the said
DD, the appellant had been practicing to forge the signature of the manager
of the Bank of India, Mumbai Branch and the same was questioned by P.W.
1 and the appellant warned P.W.1 and directed him not to interfere.
Thereafter he left the lodge and Salim Siraj Gilani and the appellant called
and handed over the forged DDs. Thereafter the said DD was handed over
to A1 and A2. Thereafter, the forged DD was encashed and after taking the
10% amount the said amount was handed over to the appellant in the house
of PW1. The appellant verified the said amount and handed over Rs.
30,000/- to P.W.1 to meet out the flight charges. Thereafter, they asked to
encash the similar DDs. At the time, there was a bomb blast in Mumbai
and hence to avoid the check in the airport P.W.1, Muthukrishnan,
Balasubramanian, Raveendran and the appellant jointly went to Mumbai
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
with money. The P.W.1 was asked to hand over Rs.1,00,000/- to the
appellant. He also received Rs.13,000/- from A2. Subsequently, they also
met at Thiruvanathapuram Airport and further DDs were handed over and
the said amount also was encashed and entrusted with the appellant in the
presence of the Sathiya Seelan Son Jayakar (PW1) and he handed over the
same to the appellant and the appellant further handed over three DDs by
dropping them in the Madurai Periyar Bus Stand and the said amount was
also encashed and after taking the commission and the said amount was
entrusted with the appellant at Coimbatore lodge. Thereafter, he handed
over the DD of Maharastra Bank and the said DD was presented in the
bank and the same was found forged. The same was informed to the
appellant in the said process of the transaction and he received Rs.
6,00,000/- as commission. Thereafter, CBI arrested and he gave the
confession statement under 164 of Cr.P.C. and thereafter, his tender of
pardon was accepted. The said evidence of P.W.1 was cogent and without
any infirmity. He was subjected to cross examination and through the cross
examination nothing was elicited to disbelieve his version. His evidence
corroborated with the evidence of another approver, Sathiya Seelan in all
aspects.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
14.The prosecution further strengthened the case on the basis of the
evidence of the approver by way of marking as additional document in this
appeal. The approver Sathyaseelan, G.Thangaswamy clearly deposed about
the meeting of the appellant with remaining accused, handing over the
forged DDs to A1 through another accused and their attempt to encash
was aborted. Their evidence was accepted by the trial Court in mother
C.C., and confirmed by this Court in Crl.A.No.34 of 2003.
15.That apart, the learned trial Judge acted on the basis of the
evidence of P.W.1 to P.W.3 and other materials convicted the appellant.
Therefore, this Court holds that the learned trial judge is correct in
convicting the appellant.
16. In view of the above discussion the prosecution clearly proved
the charge against the appellant under Section 120-B r/w 468, 471, 420
IPC r/w 511 of IPC beyond reasonable doubt. Therefore, there is no merits
in this appeal.
17. The learned trial Judge has convicted all co-accused in the
mother case and the other absconding accused meticulously discussing
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
about the involvement of this appellant. The conviction against the co-
accused, namely, A1, A3, A4, A5, A6 was confirmed by this Court in
Crl.A.(MD).Nos.34 of 2003, 384 of 2003, 715 of 2003 and 113 of 2005.
A2's conviction also was confirmed by this Court in Crl.A.(MD).No.315 of
2003. In all cases, there was specific finding about the involvement of this
appellant. Therefore, in all aspects, the judgment of conviction passed by
the learned trial Judge is in accordance with law.
18. The learned counsel appearing for the appellant would submit
that appellant is aged about 67 years and he is suffering from various
illness and therefore he seeks for reduction of sentence. The learned
Special Public Prosecutor would submit that his conduct through the entire
trial is not appreciable and he is the main man and hence he seeks to
confirm the sentence.
19. Considering the circumstances that appellant was absconded for
period 12 years and his active roll, this Court declines to accept the
argument of the learned counsel for the accused to grant minimum
sentence. But, considering the age and illness, this Court also is unable to
concur with the argument of the learned Special Public Prosecutor to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
award maximum punishment be cause of the conduct of the accused. To
resolve the same, this Court gets guidance from the following observation
made by the Hon'ble Supreme Court in the case of R. Venkatkrishnan v.
CBI, reported in (2009) 11 SCC 737 at page 791
168. A sentence of punishment in our opinion poses a
complex problem which requires a balancing act between the
competing views based on the reformative, the deterrent as well
as the retributive theories of punishment. Accordingly, a just
and proper sentence should neither be too harsh nor too
lenient. In judging the adequacy of a sentence, the nature of the
offence, the circumstances of its commission, the age and
character of the offender, injury to individual or the society,
effect of punishment on offender, are some amongst many other
factors which should be ordinarily taken into consideration by
the courts.
20. All the accused conspired to defalcate the bank amount and
committed offence of bank fraud by stealing the blank demand draft from
the bank situated in Bombay and forged the signature of the manager of the
said bank and presented the said cheque in the bank situated in Madurai by
opening the fictitious account and encashed the amount and withdrew the
amount and appropriated among themselves and their greed drove them to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
present another set of forged DDs which resulted in timely foiling of the
attempt and brought them into the nets of CBI. It is well known proverb
that “A long time thief will be caught one day”. He has been indulging in
dilatory tactics to escape from the clutches of law by fleeing from the
prosecution. After 12 years, he was caught by CBI and trial was
conducted. He caused unbearable hardship to the prosecution witnesses.
The prosecution witnesses were examined in the year 1993 and they
appeared before the Court during the trial of some of the accused and after
completion of their trial, they also were forced to appear in trial of another
absconding accused and thereafter during the trial of this case. The Court
also conducted the trial by spending its precious time after his arrest.
Hence, from the stage of investigation till the date of the Trial court
judgment , his conduct is condemnable. Therefore, this Court is not
inclined to exercise its discretion in favour of the accused to grant
minimum sentence. These circumstances warrant imposition of proper
punishment. This court does not want to show any mercy to this accused
which amounts to misplaced sympathy. In the said circumstance, it will be
unethical to accept the request for minimum sentence and grant minimum
sentence of imprisonment and also not expedient in the administration
criminal justice system. It is well settled principle that no one is to be
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
allowed to take the benefit of his own wrong. Here the Respondent has
evaded process of law by absconding. Therefore, this court is not inclined
to grant minimum sentence which amounts to showing misplaced
sympathy to the white collar criminals.
20.1. The Hon'ble Supreme Court in the case of State of
Gujarat v. Mohanlal Jitamalji Porwal, reported in (1987) 2 SCC 364 also
reiterated the said requirement of strenuous action in the following terms:
5. An economic offence is committed with cool calculation and
deliberate design with an eye on personal profit regardless of
the consequence to the community. A disregard for the interest
of the community can be manifested only at the cost of
forfeiting the trust and faith of the community in the system to
administer justice in an even-handed manner without fear of
criticism from the quarters which view white collar crimes with
a permissive eye unmindful of the damage done to the national
economy and national interest.
20.2. The said requirement also was reaffirmed by the Hon'ble
Supreme Court in the case of Ram Narayan Popli v. CBI, reported in
(2003) 3 SCC 641
381. ... the need to pierce the facadial smokescreen to
unravel the truth to lift the veil so that the apparent, which is
not real, can be avoided. The proverbial red herrings are to be
ignored, to find out the guilt of the accused.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
382. The cause of the community deserves better
treatment at the hands of the court in the discharge of its
judicial functions. The community or the State is not a persona
non grata whose cause may be treated with disdain. The entire
community is aggrieved if economic offenders who ruin the
economy of the State are not brought to book.
383. Unfortunately in the last few years, the country has
seen an alarming rise in white-collar crimes which has affected
the fibre of the country's economic structure. These cases are
nothing but private gain at the cost of the public, and lead to
economic disaster.
20.3. In the case of fraud, greedy person gains at the loss of
another. This case is no exception. Hence, this case does not deserve any
sympathy to grant minimum sentence. But, considering the age, various
ailments and other mitigating circumstances, this Court is inclined to
award appropriate sentence between the minimum sentence and maximum
sentence. i.e. This Court is inclined to reduce the sentence of imprisonment
on the following terms:
Sl. Offences under Punishment imposed by the Punishment imposed by this
No. Section trial Court Court
1 120-B r/w Rigorous Imprisonment Rigorous Imprisonment
468 of IPC for 7 years and to pay a for 5 years and to pay a
fine of Rs.25,000/- in fine of Rs.25,000/- in
default to undergo default to undergo
Simple Imprisonment Simple Imprisonment
for one year for one year
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
2 468 of IPC Rigorous Imprisonment Rigorous Imprisonment
for 7 years and to pay a for 5 years and to pay a
fine of Rs.25,000/- in fine of Rs.25,000/- in
default to undergo default to undergo
Simple Imprisonment Simple Imprisonment
for one year for one year
3 120-B r/w Rigorous Imprisonment Rigorous Imprisonment
468 r/w 471 for 7 years and to pay a for 5 years and to pay a
of IPC fine of Rs.25,000/- in fine of Rs.25,000/- in
default to undergo default to undergo
Simple Imprisonment Simple Imprisonment
for one year for one year
4 468 r/w 471 Rigorous Imprisonment Rigorous Imprisonment
of IPC for 7 years and to pay a for 5 years and to pay a
fine of Rs.25,000/- in fine of Rs.25,000/- in
default to undergo default to undergo
Simple Imprisonment Simple Imprisonment
for one year for one year
5 120-B r/w Rigorous Imprisonment Rigorous Imprisonment
420 r/w 511 for 3 ½ years and to pay for 2 ½ years and to pay
of IPC a fine of Rs.10,000/- in a fine of Rs.10,000/- in
default to undergo default to undergo
Simple Imprisonment Simple Imprisonment
for 6 months. for 6 months.
6 420 r/w 511 Rigorous Imprisonment Rigorous Imprisonment
of IPC for 3 ½ years and to pay for 2 ½ years and to pay
a fine of Rs.10,000/- in a fine of Rs.10,000/- in
default to undergo default to undergo
Simple Imprisonment Simple Imprisonment
for 6 months for 6 months.
Total Fine amount Total fine amount
Rs.1,20,000/- Rs.1,20,000/-
21.Accordingly, this appeal is partly allowed in the following terms:
(i)The conviction passed against the appellant by the learned II
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
Additional District and Sessions Judge for CBI Cases, Madurai, in C.C.No.
10 of 2010, dated 29.01.2019, is hereby confirmed.
(ii)The sentence of imprisonment as against the appellant to undergo
Rigorous Imprisonment for 7 years and to pay a fine of Rs.25,000/- in
default to undergo Simple Imprisonment for one year for the offence under
Section 120-B, r/w 468 of IPC is hereby reduced to 5 years of Rigorous
Imprisonment. Direction to pay fine amount Rs.25,000/- is hereby
confirmed.
(iii)The sentence of imprisonment as against the appellant to
undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs.
25,000/- in default to undergo Simple Imprisonment for one year for the
offence under Section 468 of IPC is hereby reduced to 5 years of Rigorous
Imprisonment. Direction to pay fine amount Rs.25,000/- is hereby
confirmed.
(iv)The sentence of imprisonment as against the appellant to
undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs.
25,000/- in default to undergo Simple Imprisonment for one year for the
offence under Section 120-B, r/w 468 r/w 471 of IPC is hereby reduced to
5 years of Rigorous Imprisonment. Direction to pay fine amount Rs.
25,000/- is hereby confirmed.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
(v)The sentence of imprisonment as against the appellant to undergo
Rigorous Imprisonment for 7 years and to pay a fine of Rs.25,000/- in
default to undergo Simple Imprisonment for one year for the offence under
Section 468 r/w 471 of IPC is hereby reduced to 5 years of Rigorous
Imprisonment. Direction to pay fine amount Rs.25,000/- is hereby
confirmed.
(vi)The sentence of imprisonment as against the appellant to
undergo Rigorous Imprisonment for 3 ½ years and to pay a fine of Rs.
10,000/- in default to undergo Simple Imprisonment for 6 months for the
offence under Section 120-B, r/w 420 r/w 511 of IPC is hereby reduced to
2 ½ years of Rigorous Imprisonment. Direction to pay fine amount Rs.
10,000/- is hereby confirmed.
(vii)The sentence of imprisonment as against the appellant to
undergo Rigorous Imprisonment for 3 ½ years and to pay a fine of Rs.
10,000/- in default to undergo Simple Imprisonment for 6 months for the
offence under Section 420 r/w 511 of IPC is hereby reduced to 2 ½ years
of Rigorous Imprisonment. Direction to pay fine amount Rs.10,000/- is
hereby confirmed.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
(viii)All the substantive sentence of imprisonment are to run
concurrently. The period if already undergone by the appellant is ordered
to be set off under Section 428 of Cr.P.C.,
(ix)Bail bond executed by the appellant shall cancelled and the
learned trial Judge is hereby directed to secure the appellant and confine in
prison to serve his remaining period of imprisonment.
07.04.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sbn
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
To
1. The II Additional District Judge for CBI Cases,
Madurai District.
2. The II Additional District and Special Judge for CBI Cases,
Madurai.
3. The Inspector of Police,
CBI:SCB, Chennai.
4.The Special Public Prosecutor,
Central Bureau of Investigation,
Chennai.
5. The Special Public Prosecutor for CBI Cases,
Madurai Bench of Madras High Court, Madurai.
6. The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
K.K.RAMAKRISHNAN,J.
sbn
Pre-delivery judgment made in
and
07.04.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 09:40:20 pm )
