Madras High Court
K.Rajaraman vs The State Through on 4 March, 2025
CRL.A(MD).Nos.154, 163 and 164 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 29.07.2024
Pronounced On : 04.03.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.154, 163 and 164 of 2020
Crl.A(MD).No.154 of 2020:
K.Rajaraman .... Appellant/Accused No.1
Vs.
The State through
DSP of Police,
SPE/CBI/ACB,
Chennai.
thro RC MA1 2009 A 0036 ...Respondent/Complainant
Prayer : This Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to
admit the appeal, call for the records and set aside the conviction and
sentence imposed by the learned II Additional District Judge for CBI
Cases, Madurai vide his Judgment in C.C.No.2 of 2011, dated 12.03.2020,
and acquit the appellant.
For Appellant : Mr.G.Prabhu Rajadurai
for Mr.N.Karthik Kanna
For Respondent : Mr.C.Muthu Saravanan,
Special Public Prosecutor for CBI
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CRL.A(MD).Nos.154, 163 and 164 of 2020
Crl.A(MD).No.163 of 2020:
R.Rajasekar ... Appellant/Accused No.3
Vs.
State through the Deputy Superintendent of Police,
SPE, CBI, ACB, Chennai.
(RC MA1 2009 A 0036) ... Respondent/Complainant
Prayer : This Criminal Appeal is filed under Section 374 of Cr.P.C. to call
for the records and set aside the conviction and sentence passed in C.C.No.
2 of 2011 vide judgment dated 12.03.2020 by the learned II Additional
District Judge (CBI Cases), Madurai and acquit the appellant.
For Appellant : Mr.R.Shunmugasundaram,
Assisted by Ms.S.Sona Satish Kumar
For Respondent : Mr.C.Muthu Saravanan,
Special Public Prosecutor for CBI
Crl.A(MD).No.164 of 2020:
S.Murugan ... Appellant/Accused No.2
Vs.
The State through the
Deputy Superintendent of Police,
SPE,CBI,ACB, Chennai.
RC MA1 2009 A 036 ... Respondent/Complainant
2/60
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CRL.A(MD).Nos.154, 163 and 164 of 2020
Prayer : This Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to
call for the records in C.C.No.2 of 2011 on the file of the II Additional
District Court(CBI Cases) Madurai and set-aside the conviction and
sentence imposed on the appellant vide Judgment dated 12.03.2020 and
allow the Criminal Appeal.
For Appellant : Mr.Arul Vadivel @ Sekar,
Senior Counsel for
Mr.D.Ramesh Kumar
For Respondent : Mr.C.Muthu Saravanan,
Special Public Prosecutor for CBI
COMMON JUDGMENT
The accused No.1 to 3 in C.C.NO.2 of 2011, on the file of the II
Additional District Court(CBI Cases) Madurai, have preferred these
appeals challenging the following conviction and sentence imposed against
them, vide the impugned judgment dated 12.03.2020:-
Crl.A. Rank of the
C.C. Charges proved Punishment
(MD). Accused and
No. No. under sections (Imprisonment and Fine)
Name
154 A-1 2 of U/s.120-B Sentenced to undergo Rigorous
of 2011 r/w 420 IPC Imprisonment for fours years and
2020 K.Rajaraman to pay a fine of Rs.1,25,000/- in
default to undergo Simple
Imprisonment for Six months.
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CRL.A(MD).Nos.154, 163 and 164 of 2020
U/s.420 of Sentenced to undergo Rigorous
IPC Imprisonment for three years and
to pay a fine of Rs.75,000/- in
default to undergo Simple
Imprisonment for Six months.
13(2) r/w Sentenced to undergo Rigorous
13(1)(d) of Imprisonment for two years and
Prevention of to pay a fine of Rs.50,000/- in
default to undergo Simple
Corruption
Imprisonment for Six months.
Act, 1988
163 A-3 U/s.120-B Sentenced to undergo Rigorous
of R.Rajasekar r/w 420 IPC Imprisonment for five years and
2020 to pay a fine of Rs.1,25,000/- in
default to undergo Simple
Imprisonment for Six months.
U/s.420 of Sentenced to undergo Rigorous
IPC Imprisonment for three years and
to pay a fine of Rs.75,000/- in
default to undergo Simple
Imprisonment for Six months.
13(2) r/w Sentenced to undergo Rigorous
13(1)(d) of Imprisonment for three years and
Prevention of to pay a fine of Rs.75,000/- in
default to undergo Simple
Corruption
Imprisonment for Six months.
Act, 1988
164 A2 U/s.120-B Sentenced to undergo Rigorous
of r/w 420 IPC Imprisonment for five years and
2020 to pay a fine of Rs.5,00,000/- in
default to undergo Simple
Imprisonment for Six months.
U/s.420 of Sentenced to undergo Rigorous
IPC Imprisonment for three years and
to pay a fine of Rs.2,00,000/- in
default to undergo Simple
Imprisonment for Six months.
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CRL.A(MD).Nos.154, 163 and 164 of 2020
2.The brief facts of the case:-
When the appellants in Crl.A.(MD).Nos.154 and 163 of 2020, were
working as managers of the Indian Overseas Bank, Thiruvanaikovil
Branch, Tiruchirapalli, during the period from 23.06.2003 to 12.02.2006,
they had entered into conspiracy with the private individual namely the
appellant in Crl.A.(MD)No.164 of 2020, to cheat the Indian Overseas
Bank and defraud an amount of Rs.2,02,42,674/- and granted loan to the
following agencies managed by A2:
i.M/s. Vasan News and Advertising
ii.M/s. Vasan Canteen service
iii.M/s.Vasan Catering Services
iv.Hotel Mani vilas unit – I
v.Hotel Mani Vilas unit - II
Totally, seven loans were granted to the above said agencies without
obtaining registered mortgage deed and sufficient securities and diverted
the loan amount for some other purpose other than the purpose for which
the loan was granted and therefore, caused loss of Rs.2,02,42,674/-and
acted contrary to the banking norms and regional office instructions.
Therefore, the CBI registered the case under Sections 120(b) r/w 420 of
IPC r/w 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, against
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CRL.A(MD).Nos.154, 163 and 164 of 2020
number of persons and after the investigation, CBI filed the final report
against the appellants for the above said offences before the II Additional
District Court(CBI Cases) Madurai, and the same was taken on file in
C.C.No.2 of 2011. After taking cognizance, in C.C.No.2 of 2011, the
learned special Judge issued summons to the accused and on their
appearance, served the copies under Section 207 Cr.P.C. Thereafter,
framed the appropriate charges and questioned the appellants and they
pleaded not guilty and they stood for trial.
3.To prove the charge framed against the appellants, the prosecution
examined P.W.1 to P.W.19 and marked the Ex.P.1 to Ex.P.110. After the
completion of the examination of the prosecution witnesses, the learned
trial Judge questioned the appellants under Section 313 Cr.P.C., by putting
incriminating evidence available against them and they denied them as
false and specifically answered that they had not committed any offence.
The appellants examined D.W.1 to D.W.4 and marked Ex.D1 to Ex.D8.
The learned trial judge after considering all the evidence came to the
conclusion that the prosecution proved the charges framed against the
appellants beyond reasonable doubt and convicted the appellants for the
above stated offences and imposed the sentence of imprisonment as stated
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above, by passing the impugned judgment dated 12.03.2020. Challenging
the same, the appellants have preferred these appeals.
4. Thiru.R.Shanmuga Sundaram senior counsel appearing on
behalf of the appellant in Crl.A.(MD).No. 163 of 2020 made the
following submission:-
4.1. The appellant in Crl.A.(MD).No. 163 of 2020 was arrayed as a
accused No. 3 in the C.C.No. 2 of 2011. He was working as manager of the
Indian Overseas Bank, Thiruvanaikovil Branch, Trichirappalli for the
period from 12.06.2005 to 12.02.2006. In the said branch, A2 operated and
managed various accounts of the following partnership firms and
proprietorship concern:-
i.M/s. Vasan News and Advertising
ii.M/s. Vasan Canteen service
iii.M/s.Vasan Catering Services
iv.Hotel Mani vilas unit – I
v.Hotel Mani Vilas unit - II
4.2. The CBI had filed the final report with the following allegation
against the appellants :-
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4.2.1. He had sanctioned term loan to the Hotel Mani vilas unit – I
and Hotel Mani Vilas unit – II without obtaining proper security and also
against the banking norms.
4.2.2. He also sanctioned term loan to M/s.Vasan Catering Services
without execution of any registered mortgage deed inspite of the direction
to get the mortgage for the account of A2 stating that the original deed of
the property was lost.
4.2.3. He also allowed A2 to avail two set of accommodation cheque
facilities against the banking norms.
4.2.4. The appellant conspired with A2 to defraud the bank money
by granting the above said term loan against the banking norms and also
allowed A2 to divert the said fund for some other purpose and thereby
caused loss to the bank.
4.3.The learned senior counsel would submit that this appellant
acted as per direction of the chief regional manager who was arrayed as
accused in the FIR and was deleted purposely and false case was initiated
against this accused whose name was not found place in the FIR. Once
regional office sanctioned the loan, this appellant as a branch head would
have to disburse the loan. The entire loan documents were submitted to the
regional office and the same had been perused and recommended by the
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Regional office to grant loan. Therefore, there is no criminality in granting
loan to A2.
4.4. The execution of mortgage deed by deposit of title had been
already made. As per the bank norms, even after sanctioning the loan, the
borrowers always can be called for registration of the mortgage deed.
Before exercising the said procedure by calling the borrower to register the
mortgage, the property was sold and in between he was transferred to some
other branch and therefore no material is available against the appellant to
implicate him in the crime.
4.5. According to the prosecution among the two types of the
accommodation cheque facilities, dues relating to one type of
accommodation cheque facility the same had been settled on 06.02.2009
much earlier to the registration of the FIR on 30.06.2009. For the other
type of the accommodation cheque facility, the regional office itself made
arrangement for rescheduling the said credit facility. Therefore, there was
no loss and hence the charge for the said issuance of the accommodation
cheque facility in violation of the banking norms is not legally
maintainable.
4.6. D.W.2, D.W.3, D.W.4 and P.W.19 clearly deposed that P.W.11
alone owned the above said partnership firms and proprietorship concerns.
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All the loan application and other formalities were made in her name.
Without arraying P.W.11 as accused, the criminal case registered against
the appellant is not legally maintainable. For the same reason, her evidence
is also not admissible against the appellant and other accused. Apart from
that she is totally a liar and her evidence should be eschewed from
consideration to convict the appellant and others. She deposed to the extent
that she was not an income tax assessee but she was income tax assessee
and also paid the income tax periodically. Instead of arraying the said
person as accused, investigating agency has shown her as a witness.
4.7. The prosecution had not produced any witness to prove that the
loan amount was diverted by A2. P.W.15 and P.W.3 clearly admitted that
the amount was utilized for the purpose for which the loan had been
granted.
4.8. Similar loan was granted by another bank manager namely
Rajaram, Sankara Narayanan and said Sankaranarayanan was not arrayed
as accused either in the FIR or final report. Therefore, bias investigation
was conducted by the CBI and framed the accused ipse dixit.
4.9. Merely because A2 sold the secured property it is not a ground
to presume the offence of cheating when there was no outstanding on the
date of the FIR. Apart from that, number of other properties were
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mortgaged by deposit of title deeds other than the sold out property and
without initiating the recovery proceedings as per the recovery law, the
CBI found fault with the act of the appellant with jaundiced eye and hence
he seeks for acquittal.
4.10. The regional office never gave instructions to get the insurance
policy for the security of the loan.
4.11. Before granting the loan, purchase bills of various goods were
perused and thereafter reimbursement loan was granted. The prosecution
witnesses never disputed the said bills. Therefore, the prosecution case of
diversion of fund is not correct.
4.12. The learned senior counsel would further submit that the
sanctioning authority is not a competent authority to accord sanction for
prosecution. Therefore, the CBI Court ought not to have taken cognizance
as against the appellants.
4.13. The learned senior counsel finally submitted that to compete
with the private sector bank, some adjustment and compromise of
procedure were made in the branch in order to enhance the business of the
bank even before the appellant joined the office. The same was followed
by the appellant on the basis of the permission granted by the regional
office to grant loan to A2 and the above stated firms. When there were
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sufficient assets to recover the dues, initiation of the criminal proceedings
against the officials would paralyse the banking business. The learned trial
judge has not considered the said practical difficulty of the officers.
Therefore, he seeks for acquittal.
5. Thiru. Prabhu Raja Durai learned counsel appearing for the
appellants in Crl.A.(MD).No.154 of 2020 made the following
submissions:-
5.1. The learned counsel submitted that the appellant in Crl.A.
(MD).No.154 of 2020 was arrayed as A1 in the above C.C.No. 2 of 2011.
He was working as a manager of the Indian Overseas Bank,
Thiruvanaikovil Branch, Trichirappalli for the period from 23.06.2003 to
03.05.2005. He reiterated the portion of the above submission of the
learned senior counsel appearing for A3 in respect of the recovery
proceedings, running of business in the competitive sector with some
compromise on the procedure, absence of the evidence relating to the
diversion of fund, getting further security during the subsistence of the
loan and made the following specific submission :-
5.1.1. The investigating agency have not come forward with the
specific stand that the appellant had granted loan in violation of the
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conditions, terms or instruction of the regional office. They have not
produced the existing conditions, terms, instruction, rules relating to the
period of disbursement of the loan and without producing the same, they
simply filed the final report that the appellant sanctioned loan in violation
of the banking norms. Without specifying the material violation in the
course of granting of loan with the intention to cheat the bank, the charge
against the appellant is not legally maintainable.
5.1.2. No evidence was adduced or material circumstances were
established that the appellant was benefited in the grant of the loan and
without such evidence the charge of criminal conspiracy and the charge
under Section 13 (1) (d), r/w. 13 (2) of the Prevention of Corruption Act
1988 is not made out against the appellant.
5.1.3. A2 is a promoter and purchaser of the flats and availed the
loan and he also facilitated the purchasers to avail the loan in the
appellant's branch providing sufficient security and also acting as a
guarantor which is not an offence unless the said amount was received and
misutilized by A2 and the said all the loans were secured by marketable
title deeds and the outstanding loan was easily recoverable by initiating the
recovery proceedings.
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CRL.A(MD).Nos.154, 163 and 164 of 2020
5.1.4. In the present day of competitive market, some irrelevant
lapse and omissions would happen during the processing of the loan. For
which the authority has power to initiate the departmental proceedings and
the CBI has no jurisdiction to register the criminal case against the officials
and the customer. If criminal prosecution is initiated for small lapses, there
would be no banking business. Therefore, according to the counsel, the
initiation of the criminal proceeding by the CBI itself without obtaining
complaint from the bank is illegal.
5.1.5. P.W.11 Pangajam in order to save her skin, had tendered false
evidence before the court with false particulars and therefore her evidence
should have been rejected by the learned trial judge. The learned counsel
reiterated the submission of the learned senior counsel Thiru.Shanmuga
Sundaram in this aspect in elaborate manner to eschew her evidence from
the record.
5.1.6. One of the borrowers sold the mortgaged property could not
be treated as a material circumstance to convict this appellant for granting
the loan to her without obtaining the original title deed. It is settled
principle that once property is mortgaged with the bank and if the borrower
sold the property, the title is passed on with liability and apart from that the
said transaction would be void one. Therefore, the approach of the learned
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trial judge in this aspect is not in accordance with law.
5.1.7. The learned counsel also reiterated the submission of the
learned senior counsel Thiru.Shanmuga Sundaram that the reimbursement
loan was made only after obtaining number of receipts for purchase of the
goods. Therefore, the prosecution miserably failed to prove the diversion
of the funds.
5.1.8. The learned counsel also submitted that during his tenure he
had sanctioned five loans and the same was granted with proper
marketable title deeds. Till date, the value of the property is continuously
appreciating and therefore, there is no loss to the bank. Apart from that
proper surety also was obtained. Therefore there is no criminality in the
entire process of granting loan except some assumed negligence or
irregularity in the course of the disbursement of the loan.
5.1.9. The prosecution has not proved the forgery committed by A2
in obtaining the loan by forging the signature of Pangajam and A2
misappropriated the fund.
5.1.10. He also reiterated the submission of the learned senior
counsel that deletion of the similarly placed bank managers in the final
report amounts to biased investigation more particularly when the case of
the appellant and the said deleted managers were similar in nature in
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disbursing the loan .
5.1.11. In this case, the appellant acted as per the norms and
converted the reimbursement loan into the term loan and there was no
criminality in the said process.
5.1.12. He also submitted that Ex.P.92 and Ex.P.93 are not
admissible for the reason of non compliance of the requirement of the
banker books evidence Act.
5.1.13. The appellant granted loans only after verifying the
document and entitlement of the borrowers as per law. Therefore, he seeks
for acquittal.
6. Thiru. Arul Vadivel @ Sekar appearing for the appellant in
Crl.A.(MD).No. 164 of 2020 after making the detailed preliminary
submission about the facts made the following submission on behalf of
A2 in C.C.No.2 of 2011.
6.1. A2 had not obtained any loan in his individual capacity. The
prosecution did not produce any material to show that he had obtained the
loan in his individual capacity. Except the “Vasan Canteen service” in all
other above said partnership firm or proprietorship concern he was not
holding the position either as a partner or any other official capacity. Even
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in the case of the “Vasan Canteen service” without arraying the remaining
partners and the partnership firm as accused, array of the appellant alone as
an accused and conducting the prosecution is not legally maintainable.
6.2. Except the “Vasan Canteen service”, all are proprietorship
concerns and P.W.11 is the proprietor for some concerns and A2 is partner of
one of the concerns and without arraigning P.W.11 as accused, registration of the
case by adding this appellant alone as accused clearly demonstrated the biased
investigation conducted by the CBI. Even no material was collected by the
investigating agency to prove A2's role in the entire process of the
obtaining the loan and he alone is benefited from the said loan.
6.3. He also reiterated the submission of the counsel appearing for
A1 and A3 that every loan was granted with sufficient security upon
execution of equitable mortgage and therefore, without initiating the
recovery proceedings relating to the unpaid loan, registration of the FIR by
the CBI without complaint from the bank is not legally correct. He further
submitted that number of loans had been settled before the registration of
the case and also remaining unpaid loans are secured debt. For number of
loans, the value of the security is more than three times of the liability.
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Therefore, the conviction of the appellant under the offence of cheating
and other charges is not legally correct.
6.4. He also reiterated the submission of the other counsel that
evidence of P.W.11 is unbelievable and also there is no evidence to prove
the diversion of the fund.
6.5. The principal debtor was not added as accused and this
appellant was added as a accused without any material to prove that he had
received the loan proceeds and hence, the prosecution is illegal.
6.6. Mere breach of promise made at the time of the receipt of the
loan is not a ground to initiate the criminal proceedings. Non payment of
the loan due to the some intervening cause is not a ground to register the
criminal case by the premier investigating agency. He also submitted that
the defense witness ought to be treated on par with the prosecution
witnesses. He also submitted that the CBI conducted investigation with
bias attitude without collecting any material to show violation of any of the
banking rules or procedure in the course of the granting of the loan and
also arrayed the accused as witness and witness as accused. Therefore, he
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seeks for the acquittal. He also submitted that even more than Rs.80 Lakhs
loan amount was recovered and only remaining loan amount is to be
recovered which is secured with marketable title deeds and without
initiating the recovery proceedings, initiation of the criminal proceedings
is not legally valid.
6.7. The learned senior counsel also made elaborate argument on the
principle of lifting the corporate veil and submitted that without arraying
the partnership concern, proprietorship concern as accused, array of this
appellant as accused is not legally correct. The learned senior counsel has
concluded the argument by submitting the following precedents after
reading the relevant portion:-
S.No. Citations
1. 1981 2 SCC 166 (Dudh Nath Pandey Vs. State of UP)
2. 1989 4 SCC 630 (Sham Sunder and others Vs. State of
Haryanan
3. 2000 4 SCC 168 (Hridaya Ranjan prasad Verma Vs. State of
Bihar)
4. 2001 6 SCC 145 (Takhaji Hiraji Vs. Thakore Kubersing
Chamansing and others)
5. 2002 2 SCC 426 (State of Haryana Vs. Ram Singh)
6. 2007 5 SCC 103 (Raghu Lakshminarayanan Vs. Fine Tubes)
7. 2009 8 SCC 617 (State of Madhya Pradesh Vs. Sheetla Sahai
and others
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8. 2012 5 SCC 661 (Aneeta Hada Vs. Godfather Travels and
Tours Pvt Limited)
9. 2014 SCC Online Del 4637 (Freezair India p. Ltd Vs.
Commissioner of Central Excise, Commissionerate)
10. 2015 12 SCC 781 (Sharad Kumar Sanghi Vs. Sangita Rane)
11. 2019 3 SCC 797 (Himanshu Vs. B.Shivamurthy and Another)
12. Judgment of Madras High Court in S.Saravanan vs.
S.Murugesan in Crl.O.P.No.11916 of 2014, dated 26.11.2019.
13. 2019 16 SCC 739 (R.K.Vijayasarathy Vs. SudhaSeetharam)
14. 2020 10 SCC 531 (Mohan Vs. State of Madhya pradesh)
15. Judgment of the Hon'ble Supreme Court in Parveeb @ Sonu
Vs. State of Haryan in C.A.No.1571 of 2021, dated
07.12.2021
16. Judgment of AP High Court in Criminal petition No.315 of
2021, dated 22.03.2022.
17. 2022 LiveLaw (SC) 709 Ram sharan Chaturvedi Vs. State of
Madhya Pradesh
18. Judgment of Madras High Court in Santhosh Vs. Commercial
Tax Officer and another in Crl.O.P.No.34570 of 2019, dated
10.01.2023.
19. 2023 Live Law (SC) 157 (Sarabjit Kaur Vs. State of Punjab
and another)
20. 2023 LiveLaw (SC) 1022 (Vijay Vs. Union of Indian and
others)
7. Thiru Muthusaravanan learned special public prosecutor for
CBI made the following submission :-
7.1. A1 and A3 were the managers. They are supposed to grant term
loan by obtaining the sufficient security in the form of registered mortgage
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deed. This is the fundamental requirement for any loan. For which it is not
necessary to produce the relevant norms, rules, circular. When A1 and A3
granted loan without obtaining registered mortgage deed itself is a
circumstance to show their intention to cheat the bank with active
collusion with A2. Apart from that, the loan was granted in violation of the
specific direction issued by the regional branch to obtain the registered
mortgage and not receiving the original title deed is another important
material circumstance to presume the guilty mind of all the accused.
7.2. A2 is the kingpin for the entire transaction and he only managed
the entire units stated above and all the material documents were dealt by
him and entire business activities were administered by him and to prove
the same the prosecution produced number of documents and A2 never
denied the said documents. The learned public prosecutor strenuously
collected number of material documents and read the relevant evidence
from the huge volumes of the recorded evidence and marked documents
on the side of the CBI to substantiate their charge during the course of the
trial.
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7.3. Relating to the term loan of Rs.35 Lakhs by A3 in the name of
“Vasan Catering Services” the learned public prosecutor referred Ex.P.32,
Ex.P.90, Ex.P.84, Ex.P.53, Ex.P.55, Ex.P.56, Ex.P.57, Ex.P.59, Ex.P.60,
Ex.P.61, Ex.P.62, Ex.P.64, Ex.P.65, Ex.P.66 & Ex.P.67 and evidence of
P.W.3 and P.W.16 and argued that the manner of the granting of loan is in
violation of the norms and the direction of the regional office to obtain
proper document and disburse the loan amount.
7.4. Similarly, relating to the additional term loan of Rs.20 Lakhs by
A3 in the name of “Mani Vilas No.I” the learned public prosecutor
referred Ex.P.33, Ex.P.44, Ex.P.45, Ex.P.101, Ex.P.12 & Ex.P.43 and argued
that the manner of the granting of loan is in violation of the norms and the
direction of the regional offence to obtain proper document and disburse
the loan amount.
7.5. Similarly, relating to the additional term loan of Rs.20 Lakhs by
A3 in the name of “Mani Vilas No.II” the learned public prosecutor
referred Ex.P.34, Ex.P.50, Ex.P.48 & Ex.P.49 and argued that the manner of
the granting of loan is in violation of the norms and the direction of the
regional office to obtain proper document and disburse the loan amount.
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7.6. Similarly, relating to the additional term loan of Rs.25 Lakhs by
A1 in the name of “Mani Vilas No.I” the learned public prosecutor
referred Ex.P.33, Ex.P.10, Ex.P.40 & Ex.P.41 and argued that the manner of
the granting of loan is in violation of the norms and the direction of the
regional office to obtain proper document and disburse the loan amount.
7.7. Similarly, relating to the term loan of Rs.20 Lakhs by A1 in the
name of “Vasan News Advertising Agency” the learned public prosecutor
referred Ex.P.29, Ex.P.30, Ex.P.75, Ex.P.76, Ex.P.77 & Ex.P.78 and argued
that the manner of the granting of loan is in violation of the norms and the
direction of the regional office to obtain proper document and disburse the
loan amount.
7.8. Similarly, relating to the term loan of Rs.20 Lakhs by A1 in the
name of “Vasan Canteen Services” the learned public prosecutor referred
Ex.P.99, Ex.P.98, Ex.P.75, Ex.P.76, Ex.P.77 & Ex.P.78 and argued that the
manner of the granting of loan is in violation of the norms and the
direction of the regional office to obtain proper document and disburse the
loan amount.
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7.9. Similarly, relating to the additional term loan of Rs.35 Lakhs by
A1 in the name of Vasan Canteen Services” the learned public prosecutor
referred Ex.P.34, Ex.P.98, Ex.P.99, Ex.P.8, Ex.P.31, Ex.P.68 Ex.P.69, Ex.P.
70, Ex.P.71, Ex.P.72 & Ex.P.73 and argued that the manner of the granting
of loan is in violation of the norms and the direction of the regional office
to obtain proper document and disburse the loan amount.
7.10. Similarly, relating to the additional term loan of Rs.20 Lakhs
by A3 in the name of “Mani Vilas II” the learned public prosecutor
referred Ex.P34, Ex.P.51 & Ex.P.52 and argued that the manner of the
granting of loan is in violation of the norms and the direction of the
regional office to obtain proper document and disburse the loan amount.
8. This Court considered the rival submission made by the learned
counsel for the appellants and the learned special public prosecutor for
CBI and perused the records and the precedents relied by them.
9.The question that arise for consideration before this Court is
whether the conviction and sentence imposed against the appellants is in
accordance with law?
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9.Discussion on Conspiracy:
9.1.A1 was the senior manager of Indian Overseas Bank
Thiruvanaikovil Branch, Trichirappalli during the period 23.06.2003 to
03.05.2005. A3 was the manager of the said Branch from 12.06.2005 to
12.02.2006. During their tenure, they have sanctioned and disbursed the
loan in utter violation of the banking procedure in favour of A2 who
operated and managed the business activities of the following concerns
and defrauded the bank fund:
(a).M/s.Vasannews and advertising,
(b).M/s.Vasan Canteen Services,
(c).M/s.VasanCateringService
(d).HotelManivilasUnit-I
(e).Hotel ManivilasUnit
9.2. Among the above concerns, the Vasan news and advertising and
Vasan Catering Service are Proprietrix concerns and the proprietrix was
(Mrs. S.Pankajam) P.W.11. Hotel Mani Vilas Unit-I and Hotel Mani Vilas
Unit-II are Proprietrix concerns and the proprietrix was (Mrs.Sarajoni)
P.W.15. Vasan Catering Service was a partnership firm consisting of 6
partners including A2. The above all concerns, had been actively
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administered by A2. He alone had operated the entire business transaction
of the above concerns. P.W.11, P.W.15 and other partners never
participated in the day to day business of the said concerns.
9.3. A2 was a reporter for Daily Thanthi Newspaper during the
period 1992 – 2004 at Trichirappalli. Therefore he had contact with Vasan
news and advertisement agency. The said agency functioned at Sannathi
Kovil Street, Thiruvanaikovil. The said Vasan news and advertisement
agency also got the best performing award for three consecutive years from
the Daily Thanthi Newspapers. The said concern was operated through
P.W.11. The account of the said concern was originally opened and
operated in the IOB, Sindhamani Branch. They had the credit facilities
upto Rs.1,40,000/-. Subsequently, they requested to increase the limit. But
there was no sufficient enhancement. On 21.05.2004 therefore, they had
transferred the said account from Chinthamani Branch to the
Thiruvanaikovil Branch of IOB. At that time A1, had been discharging the
duty as a chief manager of the said branch. He made recommendation to
grant various loan to the above said concerns and also sanctioned loans for
the same. The details of the loans sanctioned are as follows :-
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1 Hotelmani 22.07.2004 Rs.25,00,000/-
vilasunit-I.
2 Vasancanteen 22.03.2005 Rs.35,00,000/-
services.
3 Vasancanteen 25.04.2005 Rs.20,00,000/-
services
9.4. A1 had recommended and sanctioned the above loans without
any sufficient surety. A1 had not disbursed the loan as per the terms of the
loan. As per the terms of the loans, he is bound to supervise the post
sanction disbursement of loan proceeds and disburse the amount
periodically. But, A1 had disbursed the entire amount to meet out the
other commitment of A2. The details of the diversion of the said loan
amount are as follows:-
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10.Discussion on the diversion of the loan amount sanctioned for
Hotel mani Vilas unit-I dated 22.07.2004:-
After sanctioning of the loan dated 22.07.2004 on the basis of the
Ex.P10, A1 debited the amount in the account number 129. The said loan
was reimbursement loan. A1 is duty bound to disburse the said amount
upon verification of the paid invoices, cash receipt and verification by the
approved engineers. But, the loan had been disbursed without following
the above terms. He allowed to withdraw the said entire amount without
any paid invoices, cash receipt etc., on the same day itself i.e., 22.07.2004
by accepting the self cheque of P.W.15 who is none other than the wife of
the A2. A2 got the withdrawal through the self cheque of his wife/ P.W.15.
P.W.3 clearly deposed about the same and Ex.P34 clearly revealed the
above fact. As per Ex.P.11, the said amount has been diverted into the
account of Hotel Mani Vilas. As stated above, the said Hotel Mani Vilas
was run by A2 in the name of his wife, P.W.15. Therefore, this court
inclines to accept the argument of the learned special public prosecutor
that A1 and A2 hatched conspiracy to defraud the loan amount and cheated
the bank without utilizing the said amount for the purpose of
reimbursement. The said conspiracy materialized into act of diversion of
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the said fund in the account of the Hotel Mani Vilas as revealed from
Ex.P.11.
11. Discussion on the diversion of the loan amount sanctioned for
Vasan Canteen Services dated 22.03.2005:-
The Vasan Canteen Service was a partnership firm as stated earlier
which consists of 6 partners as on 14.01.2005. A2 was managing partner.
He alone actively participated in the affairs of the said firm. Ex.P.98 was
the authorization letter signed by the partners and given infavour of A2.
Through Ex.P.98, A2 actively involved in the loan process. A2 applied loan
to develop Vasan Canteen Service. The Vasan Canteen Service was
engaged in the business of running canteens in various TASMAC shops.
A2 has opened SB Account in Punjab National Bank, Sethurapatti Branch,
Trichirappalli in the name of P.W.13 for the said purpose. According to
P.W.13 he alone operated the said account. P.W.14 one of the partners and
also brother of A2 has deposed that he has not participated in the said
Vasan Canteen Service as a partner. A2 alone executed demand promissory
note for Rs.35 Lakhs in favour of the bank. The loan was short term loan to
start 13 canteens in the TASMAC shops and the loan amount was
recommended and sanctioned for purchase of furniture, fixture, utensils,
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interior, decoration etc., i.e., for the purpose of infrastructure activities. But
the said amount was diverted to self cheques as stated below:-
Date of the self cheque Amount Withdrawn by A2
21.03.2005 Ex.P-68. Rs.5,00,000/- A2
23.03.2005 Ex.P-69. Rs.7,00,000/- A2
23.03.2005 Ex.P-70. Rs.8,00,000/- A2
24.03.2005 Ex.P-71. Rs.3,00,056/- A2
26.03.2005 Ex.P-72. Rs.3,90,974/- A2
28.03.2005 Ex.P-73. Rs.8,00,000/- A2
11.2.The argument of the learned senior counsel for the appellant
that there was no investigation relating to the purchase bills collected
under Ex.P.31 as to whether it is forged or not would no way advance the
case of the appellant for the reason that the said receipts were issued by
one Saroj Kumar builders for the purpose of interior decoration works for
13 canteens. In the said receipts amount was mentioned as Rs.35,75,000/-
and Rs.36,75,000/- respectively. The learned trial judge perused the said
receipts and considered the other circumstances and specifically has held
that the said receipts appeared to be unbelievable one on the ground that
the same was issued without date. This court also perused the said exhibit.
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The said exhibit neither contain date nor contain any other particulars
about the decoration made and if he received the amount mentioned for the
said purpose. Apart from that, the loan was meant for decoration,
purchasing the utensils, furniture etc., There was no evidence to prove that
the loan amount was utilized for the purpose of purchasing the utensils
etc., In addition to that already the amount of more than Rs.30,00,000/- had
been withdrawn through the self cheque under Ex.Ps.69,70,71,72 and 73.
In that event the case of the appellant/A2 that the amount was used for
interior decoration alone for the value of Rs.35,75,000/- and Rs.
36,75,000/- respectively cannot be accepted. There was no material that the
said amount was disbursed to Sarojkumar Builders by using the above said
withdrawn amount through the said self cheques. Therefore, the diversion
of the fund as argued by the learned special public prosecutor stands
proved.
12 Discussion on the diversion of the loan amount sanctioned for
Vasan Canteen Services dated 25.04.2005:-
The Vasan Canteen service was partnership firm and there were 8
partners. A2, Murugan was the managing partner under Ex.P.99 and it is
clear that Murugan was authorised to operate the account and he applied
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for term loan of Rs.20 Lakhs. No further security was furnished and also
the loan amount was withdrawn through the self cheques and said amount
was not utilized for the purpose for which the loan was sanctioned. The
loan was credited in the account on 25.04.2005. Ex.P.77 and Ex.P.78 are
the self cheques and the same was withdrawn on 25.04.2015 and
26.04.2005 respectively. There was no document to prove the purchase of
furniture, fixtures, utensils and interior decoration. Without any materials
and bills A2 was allowed to withdraw the amount under Ex.P.77 and Ex.P.
78. Therefore, the prosecution clearly proved the charge that A1 and A2
conspired together and obtained the loan without proper security and also
diverted the loan amount and defrauded the bank fund.
13.Discussion on the loan sanctioned by A3:-
13.1.As per the prosecution case and records A3 is proved to have
granted following loans.
13.1.1. Additional term loan Rs. 20 Lakhs for the improvement of the
Mani Vilas II.
13.1.2. Additional term loan Rs. 20 Lakhs for the improvement of
the Mani Vilas I.
13.1.3. Additional term loan Rs. 35 Lakhs for the improvement of
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the Vasan Catering Service.
14.Discussion on the term loan of Rs. 35 Lakhs in the name of
Vasan Catering Service.
14.1.A2 applied loan of Rs. 35 Lakhs to construct the community
hall at Thiruvanaikovil and to purchase the furniture to run the catering
service in the said hall. The regional office made lot of queries and finally
directed to act as per the legal opinion. A2 stated that the original
document of the collateral security was missing. Therefore, the legal
opinion was furnished with specific direction to obtain the registered
mortgage deed for the security. The regional office also specifically
directed to obtain registered mortgage deed for security. But, A3 without
obtaining the registered mortgage deed granted loan. Subsequently, the
said property was sold. Therefore, there is a clear case of cheating on the
part of A2 and A3. The learned senior counsel's submission on the basis of
the evidence of one of the bank officials that even in some cases
registration of the mortgage deed had been done after the granting of the
loan and if the succeeding officer has not obtained the same it cannot be
accepted. When there was a direction to obtain the registered mortgage
deed and in case of missing of the original title deed of secured asset, it is
the duty of A3 to obtain the registered mortgage in order to avoid any
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alienation of the mortgaged property. Without doing the same, A3 granted
loan and he cannot be allowed to say that the successor failed to obtain the
mortgage deed. A2 sold the said property subsequently to the third parties
on the basis of the original title deed. Therefore, the intention is clear to
cheat the bank and defraud the amount on the part of both A2 and A3.
14.2. Apart from that, A3 allowed A2 to divert the loan amount for
some other purpose. Under Ex.P.55, Ex.P.56, Ex.P.57, Ex.P.58, Ex.P.59,
Ex.P.60, Ex.P.61, Ex.P.62, Ex.P.63, Ex.P.64, Ex.P.65 and Ex.P.66, it is clear
that the amount was used for some other purpose namely, clearing the
earlier loan due of Rs.16,17,000/- and remaining amount was used for
other purpose. Therefore, the prosecution case that the loan was obtained
and misappropriated by the way of diversion of the loan amount is clearly
proved beyond reasonable doubt.
15.Discussion on the Additional term loan Rs. 20 Lakhs in the
name of Hotel mani Vilas II:-
The additional term loan amount of Rs 20 lakhs was disbursed for
the development of Mani Vilas Hotel No. I without creating valid
mortgage. The secured asset was settlement property of the Sri
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Rengathasamy Temple. Except the kist receipt, no other document was
submitted. The said Hotel Mani Vilas No.I, stands in the name of his wife,
A2 actively participated and applied for the loan and diverted the fund.
The loan amount was granted for construction of the building with interior
decoration, electrical, furniture fittings and for purchase of utensils,
kitchen equipments etc., The said loan was granted without obtaining any
valuation certificate and granted with direction to obtain the latest
valuation report of the property under Ex.P48, Ex.P49 and the amount of
Rs.10 lakhs was diverted for some other purpose. Therefore, the
prosecution case that the loan was obtained and misappropriated by way of
diversion of the loan amount is clearly proved beyond reasonable doubt.
16.Discussion on the Additional term loan Rs. 20 Lakhs in the
name of Hotel mani Vilas I:-
The additional term loan of Rs.20 Lakhs was granted for carrying
out renovation work of A/c hall, purchase of furniture, fixtures, kitchen
utensils and also for providing interior decoration. No additional security
was obtained. The sanctioned amount also utilized for some other purpose
and the same was proved through Ex.P.44 and Ex.P.45. The learned senior
counsel submitted that earlier the above practice was followed and this is
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not a ground to grant loan by A3. Therefore the prosecution clearly proved
that A3 and A2 conspired together to cheat the bank and defraud the bank
amount as stated above. Hence, this court holds that the prosecution clearly
proved the charged offence against A1, A2 and A3.
16.1. From the above discussion, it is clear that A1 and A3
sanctioned loan in violation of the mandatory procedure which were to be
followed in granting loan in favour of the above stated various firms and
Proprietrix concern managed by A2. They sanctioned the loan without
obtaining the proper security, without obtaining the registered mortgage
deed and allowed to divert the loan amount. The specific purpose behind
each loan is to utilize the same in order to run the unit profitably and for
repayment. But in this case the amount was diverted for some other
purpose and hence the business was not successfully carried out. Even
before making loan application, the said commitment to use the loan
amount for some other purpose was within the knowledge of A2 and A3
and therefore they allowed A2 to use the said amount for some other
purpose without making objection to withdrawal by way of self cheque, to
pay the due amount of other account, to make the payment to other persons
and all these clearly proved that all the accused conspired together to cheat
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and defraud the bank amount deliberately. It is well settled principle, that
conspiracy can be proved through the chain of events. The above chain of
events including the granting of loan without obtaining the registered
mortgage deed and original title deed, alienation of the mortgaged property
within the short span of the loan period, using the loan amount for some
other purpose are all material incriminating circumstances to draw the
legal inference and consequently to hold that the said legal inference only
tends to prove the conspiracy. Fraud is one of the white collar crimes,
namely, banking fraud is entirely different from the ordinary case as held
by the Hon’ble Supreme Court in 2003 (2) SCC 641 and 2009 (11) SCC
737 and the duty of the prosecution ends with the proof of the
circumstances and the considered opinion of this court that the same has
been properly done in this case. That apart in the case of the banking fraud,
the officials acted against the legal procedure which amounts to proof of
cheating as held by the Hon’ble Supreme Court in 2003 (2) SCC 641 and
2009 (11) SCC 737. The learned senior counsel and other counsels
argument that there was no meeting of mind between A1,A2 and A3 to
prove the conspiracy cannot be accepted on the principle that the
prosecution clearly proved the case through the material circumstances and
there was no explanation on the side of the appellant during the course of
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313 of Cr.P.C. proceedings. Therefore, this court inclines to hold that the
prosecution clearly proved the conspiracy.
17. Discussion on sanction :-
The learned senior counsel for A3 would contend that the sanction
was granted by the incompetent person to prosecute A1 and A3 and was
not granted as per the Indian Overseas Bank Officers Employees
(Discipline and Appeal) Regulation,1976, by the competent authority. To
consider the same this court perused the said regulation of 1976. The
regulation specifically defined competent authority and disciplinary
authority as follows :-
“Competent authority” means the “Disciplinary authority” means the
authority appointed by the Board authority specified in the schedule
for the purpose of these which is competent to impose on
regulations. an officer employee any of the
penalties specified in Regulation 4
And in the regulation 4 it is stated as follows :-
Name/ Disciplinary Appellate Reviewing authority
category of authority authority
post
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Scale IV and V General Manager Executive Director Chairman and Reviewing
or in his absence director or in his absence/ in
chairman and case he is functioning
managing director appellate authority, the
committee of the board.
17.1. From the above it is clear that the General Manager is either
competent authority or disciplinary authority to remove the officer
belonging to the scale IV and V. Accused No.1 and 3 are the scale IV
officers. P.W.1 is the General Manager and his superior is Executive
Director. Therefore, he is competent to accord sanction. The learned senior
counsel's submission that he is not a disciplinary authority and he is only
competent authority to remove the scale IV and V officer and his sanction
is without authority cannot be accepted. Competent authority is the person
appointed to discharge the function stated in the regulation. As per
regulation, the disciplinary proceedings is also a part of the function.
Therefore, the contention of the learned senior counsel that disciplinary
authority has alone power to accord sanction cannot be accepted. The
competent authority also are empowered to accord sanction. Accordingly,
the sanction was properly granted by the General Manager namely, P.W.1
upon perusal of the entire documents and the materials collected by the
investigating officer. He specifically deposed that he had perused the
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materials submitted to him and he also was convinced that there was a
prima facie case against A1 and A3 to continue the prosecution for various
offences. Therefore this court holds that the sanction was accorded by the
competent authority and also sanction was accorded with due application
of mind.
18. Discussion on the purchase of accommodation cheques by
A3:-
18.1.The Vasan news and advertising unit had miscellaneous cash
credit account and also cheque purchase facilities for genuine trade
transaction. One of the terms and condition of Ex.P.4 is as follows :-
“Branch to purchase cheque arising out of genuine trade
transaction only in the name of M/s. Vasan News and
advertising. Self cheques and cheques drawn by associates
and sister concerns should not be purchased”.
18.2.From the reading of the above, it is clear that A3 had been
prohibited from purchasing cheques either from A2 or any of the associates
or sister concerns. But, in this case, five cheques were purchased by A3 in
the name of P.W.13, Karthikeyan, P.W.15, Sarojin and A2. The details of
the purchase as follows:-
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Sl. Payee of the cheque Drawer Date of Amount
No. Purchase
1 Vasan News and PW13- 07.06.2005 Rs.5,00,000/-
advertising CP - 134 Karthikeyan
2 Vasan News and PW15-Sarojini 25.07.2005 Rs.5,00,000/-
advertising CP - 284
3 Vasan News and PW13- 28.07.2005 Rs.5,00,000/-
advertising CP - 286 Karthikeyan
4 Vasan News and PW15-Sarojini 10.08.2005 Rs.5,00,000/-
advertising CP - 295
5 Vasan News and A2-Murugan 16.08.2005 Rs.5,00,000/-
advertising CP - 300
18.3.The above amount also used by A2. A2 opened the account in
the name of Karthikeyan, who was driver of A2 and he utilized the said
amount. P.W.13, Karthikeyan had been treated as hostile and his evidence
relating to the operation of the said account and withdrawal of the said
amount is cogent and trustworthy. A2 and A3 in their explanation under
section 313 of Cr.P.C. did not furnish any explanation in this regard. The
only submission before the court below and before this court is that the
said amount was already repaid. The repayment cannot wipe out the
criminal liability when they utilized the money by obtaining it in
fraudulent manner. Therefore, the prosecution clearly proved fraudulent act
of purchase of accommodation cheque in the name of A2 and his close
associate in utter violation of loan condition and thereby, defrauded the
bank money.
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19. Discussion on the principle of lifting corporate veil :-
The learned senior counsel Thiru. Arul Vadivel @ Sekar made a
detailed submission apart from the issues discussed above that A2 is not
the proprietor or partner in the Hotel Mani Vilas Unit I, Hotel Mani Vilas
Unit II, Vasan news and advertising. He was one of the partners in the
Vasan Catering Service. In the said factual circumstances, without arraying
the proprietor and other partners, the prosecution initiated the proceedings
only against A2 and hence there is a legal infirmity in the prosecution case.
To address the said issue, this court perused the volumes of records
produced by the prosecution. It is the specific case of the prosecution that
he alone managed and conducted the business of the above said concerns.
The other persons are his wife, sister and brother in law. So far as the
Vasan catering service is concerned, it is a partnership firm consisting of 6
partners and A2 is the managing partner. In both cases, he was the
authorized agent for the entire loan transaction. Evidence adduced by the
prosecution clearly proved that he alone applied the loan and processed the
loan and withdrawn the amount. He acted as guarantor for all the
transaction. The prosecution also produced relevant document of
authorization letter in the name of A2 by the other proprietor and partners
to handle the transaction. In view of the above factual circumstances the
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learned senior counsel's submission on the principle of lifting corporate
veil cannot be accepted.
20.Discussion on the non – examination of the material witness :-
The learned senior counsel Thiru. Arul Vadivel @ Sekar would
contend that the prosecution has not examined one Seethalakshmi, Income
Tax Authority and auditor Jeyaraman to prove the case and the said non
examination is fatal to the prosecution. To substantiate the said contention
he relied the judgment of the Hon’ble Supreme Court reported in 2001 (6)
SCC 145. It is settled principle that the prosecution need not examine all
witnesses to prove its case. In this case sum and substance of the allegation
is that A2 obtained loan fraudulently and diverted the said amount and
failed to repay the same and accounts became NPA and thereby, the bank
amount was defalcated. To prove the said fact, the prosecution produced
the relevant loan documents and examined number of witnesses. In the
said circumstances, the submission of the learned senior counsel that non
examination of the above said persons is fatal to the prosecution, is
misconceived one.
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21.Discussion on the principle of equal treatment to both
prosecution and defense witness :-
The Learned Senior counsel Thiru. Arul Vadivel @ Sekar would
contend that the learned trial judge failed to treat the defense witness on
par with the prosecution witness by relying the judgment of the Hon’ble
Supreme Court reported in 1981 (2) SCC 166 (para 19) and 2002 (2) SCC
426 (Para 45). There is no quarrel about the said principle. In this case
learned trial judge considered the evidence of the defense witness in
elaborate manner and disbelieved the portion of their version and accepted
some portion of their version. DW1 the senior manager of the IOB
Thiruvanaikaval, was examined. He deposed that before 06.02.2009 the
entire cheque purchase amount was settled. The cheque purchase amount is
only portion of defalcated amount. The repayment of a portion of
defalcated amount is not a ground to seek acquittal when the remaining
huge defalcated amount was yet to be settled. The said evidence was
properly considered by the trial court and this Court too. The said evidence
no way advances the case of either of the accused to wipe out the criminal
prosecution or exonerate them from the charge. Therefore this court
declines to accept the contention of the learned senior counsel that the
deposition of DW1 was not properly considered.
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21.1. DW2 was working as a editor of the 'Dhina Thanthi' during the
period 1992 to 2004. At that time, the Vasan News and Advertisement
Agency was run by the Pangajam and the said agency received
appreciation award from the Dhina Thanthi papers for their valuable
contribution in bringing numerous advertisements. The said evidence is no
way connected with the charges framed against A2. Pangajam is the
proprietor of the said agency and she is the sister of A2. At that time A2
was working in the news paper company and hence the said agency was
started in the name of Pangajam and there is clinching evidence to prove
that A2 alone operated the said agency's accounts and the business.
Therefore, the said evidence also no way helps the accused.
21.2. DW3 was working as a marketing agent of the said Vasan news
agency and he also corroborated the version of DW2 that the said agency
received appreciation award. Similarly DW4 is the driver of the said
Pangajam and he also stated relating to the transaction of the said account.
In sum and substance, the above witnesses clearly deposed that A2 was
running the said agency in the name of the Pangajam. The said aspect was
considered by the learned trial judge and this court as well. Their evidence
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no way helps the defense case. Hence, the submission of the learned senior
counsel that different yardstick was followed in appreciating the evidence
of defence witness cannot be accepted.
22. Discussion on the viability of secured asset:-
The learned counsel Thiru. Prabhu Raja Durai after reiterating the
above all submissions would contend that the loan was obtained with
proper security and the duty of the bank is to initiate the recovery
proceedings. But after initiating recovery proceedings, continuing the
criminal prosecution is illegal. The said submission of the learned counsel
is without substance. The specific case of the prosecution is that A1 and
A3 granted loan and other facilities without any proper surety. To
substantiate the same, the prosecution produced number of materials like
the defective title deed etc., and they obtained loan without producing the
original document and subsequently sold the mortgaged property on the
basis of the original deed and they even obtained the loan relating to the
temple assigned land. Therefore, the contention of the counsel Thiru.
Prabhu Raja Durai cannot be accepted.
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22.1. The learned counsel Thiru. Prabhu Raja Durai also submitted
that the prosecution has not come forward with specific case of violation of
the either particular rule or regulation in granting, and disbursing the loan.
Therefore, the charge against the officials cannot be held to be proved. The
said submission of the counsel is misconceived one. The prosecution has
clearly stated that the loan amount was granted against the directions of the
regional office and without obtaining the registered mortgage deed as
directed by the panal advocate, and also there is clear diversion of the fund
in violation of the terms and conditions of the loan. Therefore, this court is
unable to accept the argument of the said counsel Thiru. Prabhu Raja Durai
in this aspect. The supplementary argument of the said counsel that the
said violation is not offence is also not acceptable for the reason that when
the bank amount was defalcated and the prosecution case is of total
violation of the terms and conditions of the loan it amounts to offence and
the same clearly constitutes the offence under section 420 and other
offence of IPC apart from the criminal misconduct under section 13 (1)(d)
r/w. 13 (2) of the Prevention of Corruption Act.
22.2. All the counsel made this submission that there was lapse on
the part of the Investigating Agency in collecting the materials and
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conducting the investigation in a particular manner cannot be accepted on
the principle that the conviction cannot be set aside on the ground that
Investigating Agency committed lapses in the course of the investigation.
22.3. In view of the above discussion, this court is unable to accept
the argument of the learned senior counsel and other counsel's submission
that prosecution has not proved the case beyond reasonable doubt. The
prosecution clearly proved all the charges beyond reasonable doubt. In this
type of the banking fraud, the circumstances emanated from the documents
and corroborated by the oral evidence are sufficient to hold that the
prosecution proved the case beyond reasonable doubt. The act of the bank
officials sanctioning loan against the terms and conditions of the loan itself
is a strong circumstance to hold against them.
23.Conclusion on conviction:
Hence, in all aspects the prosecution proved the charge against all
the appellants and this court finds no ground to interfere with the
conviction passed against the appellants herein in C.C.No.2 of 2011 on the
file of the learned II Additional District Judge for CBI Cases, Madurai,
vide, impugned judgment dated 12.03.2020. Therefore, this Court finds no
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merit in these appeals to set aside the conviction and sentence passed in
C.C.No.2 of 2011 on the file of the learned II Additional District Judge for
CBI Cases, madurai, vide, impugned judgment dated 12.03.2020.
24.Discussion on sentence of A3/Rajasekar/Appellant in
Crl.A.No.163 of 2020:
24.1. The learned Senior counsel appearing for A3 submitted that he
is now more than 67 years and he is ailing with various illnesses and he
was terminated from service. He also paid the fine amount of Rs.2,75,000/-
and also deposited further sum of Rs.2,50,000/- in C.C.No.2 of 2011, on
the file of the learned trial Judge as per the condition imposed by this
Court. This Court, already directed to transfer the said amount to the credit
of the defacto complainant's bank viz., Indian Overseas Bank,
Thiruvanaikovil Branch, Tiruchirappalli and hence he seeks to reduce the
sentence. The learned Special Public Prosecutor would submit that there
was planned execution of criminal Act and as sequel, there was a wrongful
loss of Rs.2,02,42,674/-. Therefore, he seeks to confirm the sentence
of imprisonment. Considering the above mitigating circumstances, this
Court inclines to reduce the sentence of imprisonment as stated below with
condition to deposit further sum of Rs.5,00,000/- as a compensation
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payable to the complainant's bank within one month from the date of
receipt of a copy of this order otherwise, the sentence of imprisonment
passed by the learned trial Judge in C.C.No.2 of 2011 by judgment dated
12.03.2020 will automatically be restored and the sum already deposited
as per the order of this Court along with interest also shall be treated as
compensation payable to the defacto complainant's bank viz., Indian
Overseas Bank, Thiruvanaikovil Branch, Tiruchirappalli:
Sl.No Offence Punishment Punishment imposed by this
under imposed by the court.
Sections Trial Court
163 U/s.120-B Sentenced to Sentenced to undergo Rigorous
of r/w 420 undergo Rigorous Imprisonment for 1 year.
2020 IPC Imprisonment for Direction to pay fine of Rs.
five years and to pay 1,25,000/- in default to undergo
a fine of Rs. Simple Imprisonment for Six
1,25,000/- in default months is confirmed.
to undergo Simple
Imprisonment for
Six months.
U/s.420 Sentenced to Sentenced to undergo Rigorous
of IPC undergo Rigorous Imprisonment for 1 year.
Imprisonment for Direction to pay fine of Rs.
three years and to 75,000/- in default to undergo
pay a fine of Rs. Simple Imprisonment for Six
75,000/- in default months is confirmed.
to undergo Simple
Imprisonment for
Six months.
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13(2) r/w Sentenced to Sentenced to undergo Rigorous
13(1)(d) undergo Rigorous Imprisonment for 1 year.
of Imprisonment for Direction to pay fine of Rs.
Preventio three years and to 75,000/- in default to undergo
n of pay a fine of Rs. Simple Imprisonment for Six
Corruptio 75,000/- in default month is confirmed.
n Act, to undergo Simple
1988 Imprisonment for
Six months.
All sentence shall All sentence shall run
run concurrently concurrently
25. Accordingly the Crl.A.(MD) No.163 of 2020 is partly allowed in
the following terms :
25.1.Conviction passed against the appellant in C.C.No. 2 of 2011
on the file of the Learned II Additional District Judge, for CBI Cases,
Madurai vide impugned judgment dated 12.03.2020 is confirmed.
25.2.1. The sentence of imprisonment passed against the appellant is
reduced as stated below with a condition to deposit further sum of
Rs.5,00,000/- as a compensation payable to the credit of complainant's
bank within one month from the date of receipt of a copy of this order
otherwise, the sentence of imprisonment passed by the learned trial
Judge in C.C.No.2 of 2011 by judgment dated 12.03.2020 will
automatically be restored :
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25.2.2(i) Sentenced to undergo Rigorous Imprisonment for five
years for offence U/s.120-B r/w 420 IPC is reduced to undergo 1 year and
Direction to pay the fine of Rs.1,25,000/- with default to undergo Rigorous
Imprisonment for 6 months is confirmed.
25.2.2(ii) Sentence of Rigorous Imprisonment to undergo 3 years for
the offence under section 420 of IPC is reduced to one year and direction
to pay a fine of Rs.75,000/- in default to undergo Rigorous Imprisonment
for 6 months is confirmed.
25.2.2(iii)Sentenced to undergo Rigorous Imprisonment for three
years under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act,
1988is reduced to one year and direction to pay a fine of 75,000/- in
default to undergo Rigorous Imprisonment for 6 months is confirmed.
25.3. All sentences shall run concurrently.
26.Discussion on sentence of A1/K.Rajaraman/Appellant in
Crl.A.(MD) No.154 of 2020:
The learned counsel appearing for A1 submitted that he is more than
71 years and he also has undergone bypass surgery and also under constant
treatment and he was terminated from service and hence he seeks to reduce
the sentence. The Learned Special Public Prosecutor would submit that
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there was planned execution of criminal act and as sequel, there was a
wrongful loss of Rs.2,02,42,674/- Therefore he seeks to confirm the
sentence of imprisonment.
Considering the above mitigating circumstances, this Court inclines
to reduce the sentence of imprisonment as stated below with condition to
deposit further sum of Rs.15,00,000/- (Rs.Fifteen Lakhs) as a
compensation payable to the credit of complainant's bank within one
month from the date of receipt of a copy of this order otherwise, the
sentence of imprisonment passed by the learned trial Judge in C.C.No.2
of 2011 by judgment dated 12.03.2020 will automatically be restored.
Sl.N Offence Punishment Punishment imposed by this
o under imposed by the Trial court.
Sections Court
154 U/s.120-B Sentenced to Sentenced to undergo Rigorous
of r/w 420 undergo Rigorous Imprisonment for 1 year.
2020 IPC Imprisonment for Direction to pay fine of Rs.
four years and to 1,25,000/- in default to undergo
pay a fine of Rs. Simple Imprisonment for Six
1,25,000/- in default months is confirmed.
to undergo Simple
Imprisonment for
Six months.
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CRL.A(MD).Nos.154, 163 and 164 of 2020
U/s.420 of Sentenced to Sentenced to undergo Rigorous
IPC undergo Rigorous Imprisonment for 1 year.
Imprisonment for Direction to pay fine of Rs.
three years and to 75,000/- in default to undergo
pay a fine of Rs. Simple Imprisonment for Six
75,000/- in default months is confirmed.
to undergo Simple
Imprisonment for
Six months.
13(2) r/w Sentenced to Sentenced to undergo Rigorous
13(1)(d) of undergo Rigorous Imprisonment for 1 year.
Prevention Imprisonment for Direction to pay fine of Rs.
of two years and to pay 50,000/- in default to undergo
Corruption a fine of Rs.50,000/- Simple Imprisonment for Six
Act, 1988 in default to month is confirmed.
undergo Simple
Imprisonment for
Six months.
All sentence shall All sentence shall run
run concurrently concurrently
27. Accordingly the Crl.A.(MD) No.154 of 2020 is partly allowed in
the following terms :
27.1.Conviction passed against the appellant in C.C.No. 2 of 2011
on the file of the Learned II Additional District Judge, for CBI Cases,
Madurai vide impugned judgment dated 12.03.2020 is confirmed.
27.2.1. The sentence of imprisonment passed against the appellant is
reduced as stated below with a condition to deposit further sum of Rs.
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15,00,000/- (Rs.Fifteen Lakhs) as a compensation payable to the credit
of complainant's bank within one month from the date of receipt of a
copy of this order otherwise, the sentence of imprisonment passed by the
learned trial Judge in C.C.No.2 of 2011 by judgment dated 12.03.2020
will automatically be restored :
27.2.2(i) Sentenced to undergo Rigorous Imprisonment for four
years for offence U/s.120-B r/w 420 IPC is reduced to undergo 1 year and
Direction to pay the fine of Rs.1,25,000/- in default to undergo Rigorous
Imprisonment for 6 months is confirmed.
27.2.2(ii) Sentence of Rigorous Imprisonment to undergo 3 years
for the offence under section 420 of IPC is reduced into one year and
direction to pay a fine of Rs.75,000/- in default to undergo Rigorous
Imprisonment for 6 months is confirmed.
27.2.2(iii)Sentenced to undergo Rigorous Imprisonment for two
years under section 13(2) r/w 13(1)(d) of Prevention of Corruption Act,
1988 is reduced into one year and direction to pay a fine of 50,000/- in
default to undergo Rigorous Imprisonment for 6 months is confirmed.
27.3. All sentenced shall run concurrently.
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28.Discussion on sentence of A2/S.Murugan/Appellant in Crl.A.
(MD) No. 164 of 2020.
The learned senior counsel appearing for A2 submitted that he is
more than 65 years and suffering from the acute diabetes from 2002 and he
also has undergone multiple surgeries and he is not even able to take care
of his only female child. He also paid the fine amount of Rs.2,50,000/- and
also deposited further sum of Rs.5,00,000/- in C.C.No.2 of 2011, on the
file of the learned trial Judge as per the condition imposed by this Court.
This Court already directed to transfer the said amount to the credit of
defacto complainant's bank viz., Indian Overseas Bank, Thiruvanaikovil
Branch, Tiruchirappalli and hence he seeks to reduce the sentence. The
Learned Special Public Prosecutor would submit that there was planned
execution of criminal Act and, as sequel, there was a wrongful loss of Rs.
2,02,42,674/- Therefore he seeks to confirm the sentence of imprisonment
Considering the above mitigating circumstances, this Court inclines
to reduce the sentence of imprisonment as stated below with a condition to
deposit further sum of Rs.20,00,000/- (Twenty Lakhs) as a compensation
payable to the credit of the complainant's bank within one month from
the date of receipt of a copy of this order otherwise, the sentence of
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imprisonment passed by the learned trial Judge in C.C.No.2 of 2011 by
judgment dated 12.03.2020 will automatically be restored.
Sl.N Offence Punishment Punishment imposed by this
o under imposed by the Trial court.
Sections Court
154 U/s.120-B Sentenced to Sentenced to undergo Rigorous
of r/w 420 undergo Rigorous Imprisonment for 1 year.
2020 IPC Imprisonment for Direction to pay fine of Rs.
five years and to pay 5,00,000/- in default to undergo
a fine of Rs. Simple Imprisonment for Six
5,00,000/- in default months is confirmed.
to undergo Simple
Imprisonment for
Six months.
U/s.420 of Sentenced to Sentenced to undergo Rigorous
IPC undergo Rigorous Imprisonment for 1 year.
Imprisonment for Direction to pay fine of Rs.
three years and to 2,00,000/- in default to undergo
pay a fine of Rs. Simple Imprisonment for Six
2,00,000/- in default months is confirmed.
to undergo Simple
Imprisonment for
Six months.
All sentence shall All sentence shall run
run concurrently concurrently
29. Accordingly the Crl.A.(MD) No.164 of 2020 is partly allowed in
the following terms :
29.1.Conviction passed against the appellant in C.C.No. 2 of 2011
on the file of the learned II Additional District Judge, for CBI Cases,
Madurai vide impugned judgment dated 12.03.2020 is confirmed.
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29.2.1. The sentence of imprisonment passed against the appellant is
reduced as stated below with a condition to deposit further sum of Rs.
20,00,000/- (Twenty Lakhs) as a compensation payable to the credit of
the complainant's bank within one month from the date of receipt of a
copy of this order otherwise, the sentence of imprisonment passed by the
learned trial Judge in C.C.No.2 of 2011 by judgment dated 12.03.2020
will automatically be restored :
29.2.2.(i) Sentenced to undergo Rigorous Imprisonment for four
years for offence U/s.120-B r/w 420 IPC is reduced to undergo 1 year and
Direction to pay the fine of Rs.5,00,000/- in default to undergo Rigorous
Imprisonment for 6 months is confirmed.
29.2.2(ii) Sentence of Rigorous Imprisonment to undergo 3 years for
the offence under section 420 of IPC is reduced into one year and direction
to pay a fine of Rs.2,00,000/- in default to undergo Rigorous Imprisonment
for 6 months is confirmed.
29.3. All sentences shall run concurrently.
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30. The bail bonds executed by the appellants stand cancelled. The
learned trial judge is hereby directed to secure the accused to make them
undergo the remaining part of the sentence of imprisonment after setting
off the period already undergone.
04.03.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sbn
To
1. The II Additional District Judge for CBI Cases,
Madurai.
2. The Deputy Superintendent of Police,
SPE,CBI,ACB, Chennai.
(RC MA1 2009 A 036)
3. The Special Public Prosecutor for CBI Cases,
Madurai Bench of Madras High Court, Madurai.
4. The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court, Madurai.
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CRL.A(MD).Nos.154, 163 and 164 of 2020
K.K.RAMAKRISHNAN,J.
sbn
CRL.A(MD).Nos.154, 163 and 164 of 2020
04.03.2025
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