Madras High Court
Sridharan vs State Represented By on 4 March, 2025
CRL.A(MD).Nos.436, 439 and 457 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 24.07.2024
Pronounced on : 04.03.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.436, 439 and 457 of 2021
Crl.A.(MD).No.436 of 2021:
Sridharan -- Appellant/Accused No.11
Vs.
State Represented by
The Deputy Superintendent of Police,
CBI/EOW, Chennai.
In RC 11(E)/2010/CBI/EOW/Chennai. -- Respondent
PRAYER: This Criminal Appeal is filed under Section 374 (2) of Cr.P.C.
to take this appeal on file, call for the records from the lower Court, hear
the counsel for the appellant/accused and allow the same by setting aside
the conviction and sentence imposed on the appellant/accused passed in
C.C.No.8 of 2011 by the II Additional Sessions Judge(CBI Cases),
Madurai, dated 27.09.2021.
For Appellant : Mr.AK.Azagarsami
For Respondent : Mr.M.D.Poornachari,
Special Public Prosecutor for CBI
1
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CRL.A(MD).Nos.436, 439 and 457 of 2021
Crl.A.(MD).No.439 of 2021:
Aarti Paul -- Appellant/Accused No.8
Vs.
State Represented through
The Deputy Superintendent of Police,
CBI/EOW, Chennai.
In RC 11(E)/2010/CBI/EOW/Chennai. -- Respondent
PRAYER: This Criminal Appeal is filed under Section 374 (2) of Cr.P.C.
to call for the records and set aside the Judgment and order in C.C.No.8 of
2011, dated 27.09.2021 passed by the learned II Additional District Judge
(CBI Cases), Madurai.
For Appellant : M/s.Chithra Sampath,
Senior Counsel
for Mr.Paul Manoj Pandian
For Respondent : Mr.M.D.Poornachari,
Special Public Prosecutor for CBI
Crl.A.(MD).No.457 of 2021:
1. M/s.S.A.S. & Co.,
Represented by its Partners,
S.Mustafa Nazar @ S.M.Nazar,
Door No.70, South Kadaya Street,
Tenkasi Taluk,
Tirunelveli District.
2. M/s.Shahul Hameed Rowther & Sons,
Represented by its Partners,
S.Sheik Mansur,
S/o.(Late) Shahul Hameed Rowther,
Door No.70, South Kadaya Street,
Tenkasi Taluk, Tirunelveli District.
2
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CRL.A(MD).Nos.436, 439 and 457 of 2021
3. S.Mustafa Nazar @ S.M.Nazar
4. S.Sheik Mansur --Appellants/Accused Nos.1,2,3 &5
Vs.
The Deputy Superintendent of Police,
Central Bureau of Investigation,
Economic Offence Wing,
Chennai.
(In Crime No.3 of 2011) -- Respondent
PRAYER: This Criminal Appeal is filed under Section 374 (2) of Cr.P.C.
to call for the records in C.C.No.8 of 2011 and to set aside the judgment
and order passed therein dated 27.09.2021 on the file of the learned II
Additional District Judge(CBI Cases), Madurai, by allowing the appeal
and to acquit the appellants.
For Appellants : Mr.C.M.Arumugam,
For Respondent : Mr.M.D.Poornachari,
Special Public Prosecutor for CBI
COMMON JUDGMENT
Since these criminal appeals are arising out of the same crime,
these cases are taken up for hearing together and disposed of by way of
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CRL.A(MD).Nos.436, 439 and 457 of 2021
this common judgment.
2. The convicted accused Nos.1, 2, 3, 5, 8 and 11 in C.C.No.8 of
2011 on the file of the learned II Additional District Judge (CBI) Cases,
Madurai, have filed following different criminal appeals before this Court,
challenging the following conviction and sentence passed against them:
Sl. Appellant/ Accused Crl.Appeal Number
No
.
1 M/s. S.A.S.& Co (A1)
M/s. Shahul Hameed
Rowther & Sons (A2)
Mr.S.Mustafa Nazar @
S.M.Nazar (A3)
Mr.Shiek Mansur (A5)
2 Mrs.Aarti Paul (A8) Crl.A.(MD).No. 439/2021
3 Mr.V.Eashwar @ Crl.A.(MD).No. 446/2021
Venkatesh (A9)
4 Mrs.Indhira (A10) Crl.A.(MD).No. 449/2021
5 Mr.G.Sridharan (A11) Crl.A.(MD).No. 436/2021
6 Mr.K.L.Jayakumar (A12) Crl.A.(MD).No. 460/2021
3. Case of the Prosecution:
3.1. A8 is Mrs. Aarthi Paul and she is said to have given guarantee
by executing the mortgage by deposit of title deeds to the loan obtained by
A1 to A5 and it is alleged that she and other accused conspired together
and created forged death certificate and legal heir certificate for her father
claiming that A8 is the sole legal heir of her deceased father and under
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CRL.A(MD).Nos.436, 439 and 457 of 2021
Ex.P4 and Ex.P5 she made the false representation that she was the
absolute owner of the property and made the bank officials believe and
accept her guarantee and thus paved way to disburse the loan to A1 to A5.
A1 to A5 have had knowledge about the forgery of the said document, and
without avoiding from obtaining the loan on the basis of the said forged
deposit of title made by the A8 in the Adayar Sub Registrar Office
appropriated the said loan amount within 1 day and diverted the entire
loan amount. A11 manager of the Tenkasi Branch without verifying the
genuineness of the said document and without any verification about the
title of the A8and without following direction of higher authority,
disbursed the loan to A1 to A5 against banking norms. Therefore CBI filed
final report against all the accused for the offence under Sections 120B
r/w. 420 and 471 r/w. 468 of I.P.C. and section 13 (2) r/w. 13 (1)(d) of P.C.
Act 1988. The Learned Special Judge has taken the same on file in
C.C.No. 8 of 2011.
3.2. After appearance of the accused, copies of records were
furnished to them under Section 207 Cr.P.C. The learned Trial Judge, on
perusal of records and on hearing both sides and being satisfied that there
existed a prima facie case against the accused/appellant, framed charges
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CRL.A(MD).Nos.436, 439 and 457 of 2021
under Sections 120B r/w. 420 and 471 r/w. 468 of I.P.C. and section 13 (2)
r/w. 13 (1)(d) of P.C. Act 1988 and the same was read over and explained
to them and on being questioned, the accused/appellants denied the
charges and pleaded not guilty and stood for trial.
3.3.The prosecution, in order to prove its case, had examined 51
witnesses as P.W.1 to P.W.51 and exhibited 112 documents as Ex.P.1 to
Ex.P.112 and exhibited one material object series, namely, the photographs
annexed with the valuation report Ex.M.O.45.
3.4.When the accused were examined under Section 313(1) (b) of
Cr.P.C., with regard to incriminating material available against them from
the prosecution evidence and the documents but each accused explained in
detail and denied the accusation and they prayed for the acquittal. On the
side of the accused, D.W.1 to D.W.5 were examined and Ex.D1 to Ex.D14
were marked. The accused Nos.8, 9 and 10 examined themselves as
defense witnesses.
3.5.The learned trial judge after considering the entire evidence on
record has acquitted the accused Nos. 4 and 6 and convicted the above
appellants for the charge of 120 (B) r/w. 420 and 471 r/w. 468 of I.P.C. and
section 13 (2) r/w. 13 (1) (d) of PC Act 1988 and imposed a sentence of
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CRL.A(MD).Nos.436, 439 and 457 of 2021
imprisonment and fine as stated below :
Sl. Accused Convicte Sentence of imprisonment and fine
No d/
Acquitted
1 M/s. S.A.S.& Co Convicted A1 firm is sentenced to pay a fine of
(A1) Rs.1,00,000/- (Rupees one lakh only)
for the offences u/s.120-B r/w 420 and
471 r/w 468 IPC and Section 13(2) r/w
13(1)(d) of P.C.Act, 1988 and to pay a
fine of Rs.25,000/- (Rupees twenty five
thousand only) for the offence u/s.420
I.P.C. and to pay a fine of Rs,25,000/-
(Rupees twenty five thousand only).u/s.
471 r/w 468 I.P.C. (Total fine Rs.
1,50,000/-).
2 M/s. Shahul Convicted A2 firm is sentenced to pay a fine of
Hameed Rowther Rs.1,00,000/- (Rupees one lakh only)
& Sons(A2) for the offences u/s.120-B r/w 420 and
471 r/w 468 IPC and Section 13(2) r/w
13(1)(d) of P.C.Act, 1988 and to pay a
fine of Rs.25,000/- (Rupees twenty five
thousand only) for the offence u/s.420
I.P.C. and to pay a fine of Rs.25,000/-
(Rupees twenty five thousand only) u/s.
471 r/w 468 I.P.C. (Total fine Rs.
1,50,000/-).
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Sl. Accused Convicte Sentence of imprisonment and fine
No d/
Acquitted
3 Mr.S.Mustafa Convicted Rigorous Imprisonment for one year
Nazar @ and to pay a fine of Rs.1,00,000/-
S.M.Nazar (A3) (Rupees one lakh only) in default to
undergo Rigorous Imprisonment for 6
months for the offences u/s 120-B r/w
420 and 471 r/w 468 I.P.C. and Section.
13(2) r/w 13(1)(d) of P.C. Act, 1988
and to undergo Rigorous Imprisonment
for one year and to pay a fine of Rs.
25,000/- (Rupees twenty five thousand
only) in default to undergo Rigorous
Imprisonment for 6 months for the
offence u/s 420 I.P.C. and to undergo
Rigorous Imprisonment for one year
and to pay a fine of Rs25,000/- (Rupees
twenty five thousand only) in default to
undergo Rigorous Imprisonment for 6
months for the offence u/s 471 r/w
468 I.P.C. (Total fine Rs.1,50,000/-).
4 Mrs. Jasmine Acquitted
(A4)
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CRL.A(MD).Nos.436, 439 and 457 of 2021
Sl. Accused Convicte Sentence of imprisonment and fine
No d/
Acquitted
5 Mr.Shiek Mansur Convicted Rigorous Imprisonment for one year
(A5) and to pay a fine of Rs.1,00,000/-
(Rupees one lakh only) in default to
undergo Rigorous Imprisonment for 6
months for the offences u/s 120-B r/w
420 and 471 r/w 468 I.P.C. and Section
13(2) r/w 13(1)(d) of P.C. Act, 1988
and to undergo Rigorous Imprisonment
for one year and to pay a fine of Rs.
50,000/- (Rupees fifty thousand only)
in default to undergo Rigorous
Imprisonment for 6 months for the
offence u/s 420 I.P.C. and to undergo
Rigorous Imprisonment for one year
and to pay a fine of Rs.25,000/-
(Rupees twenty five thousand only) in
default to undergo Rigorous
Imprisonment for 6 months for the
offence u/s 471 r/w 468 I.P.C. (Total
fine Rs.1,75,000/-).
6 Mrs.S.A.S. Acquitted
Masoodammal
(A6)
7 Mr.S.Abdul Acquitted
Kadar @
S.A.Kadar (A7)
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CRL.A(MD).Nos.436, 439 and 457 of 2021
Sl. Accused Convicte Sentence of imprisonment and fine
No d/
Acquitted
8 Mrs.Aarti Paul Convicted Rigorous Imprisonment for one year
(A8) and to pay a fine of Rs.1,00,000/-
(Rupees one lakh only) in default to
undergo Rigorous Imprisonment for 6
months for the offences u/s 120-B r/w
420 and 471 r/w 468 I.P.C. and Section
13(2) r/w 13(1)(d) of P.C. Act, 1988
and to undergo Rigorous Imprisonment
for one year and to pay a fine of Rs.
50,000/- (Rupees fifty thousand only)
in default to undergo Rigorous
Imprisonment for 6 months for the
offence u/s 420 I.P.C. and to undergo
Rigorous Imprisonment for one year
and to pay a fine of Rs.50,000/-
(Rupees fifty thousand only) in default
to undergo Rigorous Imprisonment for
6 months for the offence u/s 471 r/w
468 I.P.C. (Total fine Rs.2,00,000/-).
9 Mr.V.Eashwar @ Convicted Rigorous Imprisonment for one year
Venkatesh (A9) and to pay a fine of Rs.2,00,000/-
(Rupees two lakhs only) in default to
undergo Rigorous Imprisonment for 6
months for the offences u/s 120-B r/w
420 and 471 r/w 468 I.P.C. and Section
13 (2) r/w 13(1)(d) of P.C. Act, 1988.
(Total fine Rs.2,00,000/-).
10 Mrs.Indhira Convicted Rigorous Imprisonment for one year
(A10) and to pay a fine of Rs.1,00,000/-
(Rupees one lakh only) in default to
undergo Rigorous Imprisonment for 6
months for the offences u/s 120-B r/w
420 and 471 r/w 468 I.P.C. and Section
13(2) r/w 13(1)(d) of P.C. Act, 1988.
(Total fine Rs.1,00,000/-).
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CRL.A(MD).Nos.436, 439 and 457 of 2021
Sl. Accused Convicte Sentence of imprisonment and fine
No d/
Acquitted
11 Mr.G.Sridharan Convicted Rigorous Imprisonment for one year
(A11) and to pay a fine of Rs.1,00,000/-
(Rupees one lakh only) in default to
undergo Rigorous Imprisonment for 6
months for the offences u/s 120-B r/w
420 and 471 r/w 468 I.P.C. and Section
13(2) r/w 13(1) (d) of P.C. Act, 1988
and to undergo Rigorous Imprisonment
for one year and to pay a fine of Rs.
50,000/- (Rupees fifty thousand only)
in default to undergo Rigorous
Imprisonment for 6 months u/s 420
I.P.C. and to undergo Rigorous
Imprisonment for one year and to pay a
fine of Rs.50,000/- (Rupees fifty
thousand only) in default to undergo
Rigorous Imprisonment for 6 months
for the offence u/s 13(2) r/w 13(1)(d)
of P.C.Act, 1988. (Total fine Rs.
2,00,000/-).
12 Mr.K.L.Jayakuma Convicted Rigorous Imprisonment for one year
r (A12) and to pay a fine of Rs.1,00,000/-
(Rupees one lakh only) in default to
undergo Rigorous Imprisonment for 6
months for the offences u/s 120-B r/w
420 and 471 r/w 468 I.P.C. and Section
13(2) r/w 13(1)(d) of P.C. Act, 1988.
(Total fine Rs.1,00,000/-).
4.Challenging the said conviction and sentence of imprisonment, all
the convicted accused have filed the following appeals before this Court
4.1. Connected accused viz A9, 10 and A12 have filed various
above stated appeals before this Court being criminal appeals No. 446,
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CRL.A(MD).Nos.436, 439 and 457 of 2021
449 & 460 of 2021 have been heard by the Learned Single Judge of this
Court separately and the said appeals were allowed by a common
judgment dated 21.03.2024 and A9, A10, A12 were acquitted.
4.2. The remaining criminal appeals filed by A8, A11, A1 to A3, A5
are heard together since they all arise from the common FIR and in a
single trial in C.C.No. 8 of 2011.
5. Submission of the learned senior counsel Mrs.Chithra
Sampath appearing for the accused No. 8/appellant in Crl.A.(MD).No.
439 of 2021:
5.1. The learned counsel has made a detailed submission in eloquent
manner by reading the entire records of the appeal documents and also
submitted detailed written submission. The sum and substance of the both
oral and written submission of the learned senior counsel are as follows :
5.2. The prosecution miserably failed to prove the conspiracy
between the main borrower namely A1 to A5, A11 and her client A8.
There were no material circumstances established by the prosecution
through legal evidence either to presume the conspiracy or to infer any
circumstance presumption to convict the accused under section 120 B of
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I.P.C. Therefore, the learned Senior counsel strenuously submitted that
substratum of the prosecution case of conspiracy is not proved beyond
reasonable doubt.
5.3. The Learned senior counsel submitted that the specific case of
the prosecution is that A8 created the death certificate of her father and
legal heir certificate for her father misrepresenting that she alone was the
legal heir of her father and entered into fraudulent transaction of mortgage
by deposit of title deeds in the Adayar Sub Registrar Office as a guarantor
of the loan obtained by A1 to A5. Thus, according to learned Senior
Counsel, A8's specific case was that she never handed over the death
certificate of her father and legal heir certificate for her father to A12. The
same was clearly stated by LW-37 namely Sundararaman who allegedly
introduced her to A12 Jayakumar and A9 and A10. The said document has
surfaced from the advocate office of Thiru.Maraimalai and there was no
investigation by the CBI as to who LOs forged the said documents. The
investigating officer has candidly admitted that he did not conduct any
investigation in the said aspect. LW-37 also specifically stated that A8
only handed over the original title deeds and blue print of the house which
stood in the name of her father to A12 and she did not hand over the said
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forged documents. Therefore, no legal evidence is available against her
either to prove that either she handed over the forged death certificate and
legal heir certificate or she aided and involved in the preparation of the
said forged death certificate and legal heir certificate. Therefore, the
second material circumstance alleged by prosecution that she had involved
in the preparation of the forged death certificate and legal heir certificate
was not proved beyond reasonable doubt. From the records it is clear that
the said forged death certificate and legal heir certificate first surfaced
from the advocate's office of Mr.Maraimalai on 20.07.2006. In the said
circumstances, CBI ought to have conducted investigation who were all
involved in the forgery of the said documents when it is the admitted
evidence of LW37 that A8 never handed over the said forged document to
A12. The prosecution agency also failed to examine the said LW37 and
intentionally omitted to examine him. Therefore, the evidence of A8 that
she had no knowledge about the said document has to be accepted and
hence the learned senior counsel seeks for the acquittal.
5.6. The learned Senior Counsel in this aspect also submitted that
A8 alone made a complaint about the forgery of the said death certificate
and the legal heir certificate long before the registration of the FIR by
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CRL.A(MD).Nos.436, 439 and 457 of 2021
CBI, before the Central Crime Branch, Chennai against the A1 to A5 and
A12 and which was pending investigation in Crime No.46 of 2008 with
allegation that A1 to A5, A9 and A12 forged the death certificate of her
father and obtained the loan in clandestine manner. The investigating
officer admitted the said pendency of the criminal case with the said
allegation and he did not conduct any investigation into the said
allegation. Therefore, without any proof of forgery of the death certificate
and legal heir certificate of father of A8 either by her or any of the accused
as admitted by the investigating officer, the entire prosecution case is
without any substance. Therefore, the Learned Senior counsel pleaded to
acquit A8 from all charges.
5.4. The Learned senior counsel further elaborated about lapse on
the part of the investigating agency in not collecting material relating to
those person who involved in the process of forgery of the death
certificate and legal heir certificate. Failure to conduct investigation to the
allegation made by her in Crime No. 46 of 2008 as per the procedure
contemplated in 210 of Cr.P.C., caused miscarriage of justice which
resulted in unwanted prosecution against A8.
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5.5. The Learned senior counsel further made a submission that the
investigating agency and prosecution agency did not act in fair manner to
conduct fair trial in all aspects. The investigating agency never collected
any material and never investigated into the matter who would have
forged the death certificate and legal heir certificate.
5.6. The learned senior counsel further submitted that most of
events on which the prosecution relied to convict her are not probable one.
The said improbable events are not sufficient to even raise suspicion and
hence prosecution miserably failed to produce sufficient evidence to base
the conviction against the A8. According to the Learned senior counsel
following events are material to disbelieve the prosecution case:
5.6.1. According to the prosecution, she agreed to give surety of the
house which stands in the name of her father for the loan of A1 to A5.
Therefore, she had appeared and executed mortgage deed in the Adayar
branch of the Indian Bank and entered into memorandum of articles on
22.03.2007 at Adayar registration office. On the same day itself the
Tenkasi Branch made an endorsement of the said document under
Ex.P13. It is admitted case of the both prosecution and the accused that
Tenkasi branch is situated nearly 450 kms away from Chennai, Adayar
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Branch and therefore the presence of A8 and the receipt of the seal in the
memorandum of Articles and deposit of title deeds registered on
22.03.2007 itself creates reasonable doubt about the involvement of A8 in
the alleged course of the transaction. It is improbable to make herself
available both in the Adayar office and the Tenkasi office on the same
day. There was no evidence also in this aspect.
5.6.2. According to the prosecution, she only handed over the
documents to give loan to A1 to A5 only on 03.08.2006. Prior to that all
the documents including the alleged forged document namely death
certificate and legal heir certificate were entrusted with the Marimalai
advocate on 20.07.2006 itself. Therefore, there is a serious doubt over the
prosecution case. The said dates are very much material in so far as the
accusation against A8 is concerned since her specific case is that she
wanted to avail loan to renovate her house and develop her school wherein
it is being run. Therefore, she approached LW 37 and LW37 introduced
A12 and A12 asked her to hand over the original title deed and blue print
and obtained the power of attorney from her to arrange and obtain the loan
on 24.10.2005. Thereafter, there was no communication from him and A9
and A10 gave an assurance to get loan. A9 had stated about the works of
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the Nila Group of company and she would arrange for the loan. Believing
the words she appeared before the Sub Registrar Office, Adayar and put
her signature without knowing the contents of the documents. The
documents she signed show a long gap between her signature and the last
line of documents, which was admitted by the prosecution witnesses.
Suddenly she received notice under the SARFEASI Act and having
enquired she came to know about the submission of the forged death
certificate and legal heir certificate. Forgery by somebody is also revealed
from the spelling mistake committed in the bank documents about her
name and her husband's name. Therefore, her probable case is that A9 and
other persons are involved in the forgery of the documents and A8 has
proved her case by the theory of the preponderance of probability.
5.6.3. It is the case of the prosecution that she met the panel
advocate of bank, Tenkasi, Mr.John. The said procedure itself is against
the banking norms. Apart from that she never met the said John as alleged
by the prosecution for reason that said John was not examined as a witness
and said requisition letter dated 15.02.2007 also was not marked.
5.6.4. The material record to show that the entrustment of the
document to create the mortgage deed namely KYC norms record was not
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produced. As per the KYC norms, the guarantor must appear in person and
make the endorsement in the register about the original documents
entrusted with the bank. In this case no such document was produced.
That apart, document execution register maintained in the bank with the
signature of A8 also was not produced. Even in the Ex.P7 there was no
reference about the same. Therefore, the learned senior counsel submitted
that she believed A9, A10 and subscribed her signature in the Office of the
Sub Registrar without knowing the contents of the document and
subscribed her signature in the bank with the blank format without filing
the contents of the blank columns mentioned in the guarantee document
under the impression that the loan has been sanctioned in her favour to
renovate her house and to develop her school. All the above
circumstances coupled with her evidence clearly proves her plea that she
had never involved in the act of forgery of the death certificate of her
father and preparation of the forged legal heir certificate claiming herself
as the sole legal heir. The learned Trial Judge failed to consider the same
and erroneously convicted the accused.
5.7. The learned senior counsel after making the above elaborate
argument, in conclusion submitted that A8 immediately after receiving the
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notice of the default from the bank under the SARFEASI Act, she not only
made a complaint about the forgery of the death certificate and legal heir
certificate and also settled entire amount without even enjoying any loan
amount. This shows her bonafides in all aspects. The Learned Trial Judge
failed to consider the same and erroneously convicted the accused. Apart
from that there was no evidence that A8 had conspired with A1 to A7 and
there was no acquaintance and her transaction was only with A9, A10 and
A12. The conspiracy if any is only between her and the said A9, A10 and
A12 and also the charge is that they are also involved in the forgery of the
said death certificate and legal heir certificate. They were acquitted by this
Court by judgment dated 21.03.2024 in Crl.A.No. 446, 449 and 460 of
2021. Therefore, there was no independent material to sustain the
conviction against her. Therefore, the Learned senior counsel seeks to set
aside the impugned judgment against A8.
5.8.In support of her contentions, she relied the following
judgments:
Sl. Citations
No.
1 In the case of Hema vs. State through Inspector of Police,
Madras reported in 2013 (10) SCC 192
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2 In the case of Babubhai vs. State of Gujarat and others
reported in 2010 (12) SCC 254
3 In the case of Baljinder Kaur vs. State of Punjab reported in
2015 (2) SCC 629
4 In the case of State of M.P vs. Mishrilal (Dead) and others
reported in 2003 (9) SCC 426
5 Kuldip Yadav and others vs. State of Bihar reported in 2011
(4) SCC 324
6 In the case of Zakia Ahsan Jafri vs. State of Gujarat and
another reported in 2022 SCC Online Sc 773
7 In the case of Sharif Ahmed and another vs. State of Uttar
Pradesh and another reported in 2024 SCC Online SC 726
8 In the case of State of Gujarat vs. Jayarajbhai Punjabhai Varu
reported in 2016 (14) SCC 151
9 In the case of Jitendra Kumar Mishrar alias Jittu vs. The State
of Madhya Pradesh reported in (2024) 2 SCC 666
10 In the case of Satye Singh & another vs. State of Uttarakhand
reported in 2022 (5) SCC 438
6. Thiru.C.M. Arumugam of the learned counsel for the accused
Nos.1 to 3 and 5 in Crl.A.(MD).No.457 of 2021 made the following
elaborate submission :-
6.1. The Learned counsel took a different angle and made the
contradictory argument by affirming the factum of death of father of A8.
He elaborated his argument on this angle that the prosecution miserably
failed to prove the fact that father of A8 was alive. The prosecution is duty
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bound to prove that her father was alive. The prosecution examined two
witnesses to prove the fact that her father was alive. Through the said
witnesses, the prosecution never marked any document to prove that her
father was alive and living in Australia. Therefore, the prosecution failed
to prove the base of the charge that he was alive and the accused conspired
together and prepared the death certificate and legal heir certificate in
order to make illegal gain by submitting the same. The prosecution
examined PW30 and PW32 and marked Ex.P104 to prove the fact that
Shri M.S.Paul is alive. Their evidence is not sufficient to prove the
criminal charge that these accused A1 to A5 and A9 and A10 conspired
together and created forged document of Ex.P10 and Ex.P.11 that the said
Shri M.S.Paul was dead. The CBI ought to have filed some documentary
evidence to prove that the said Shri M.S.Paul was living in Australia.
Ex.P.104 is not admissible one without compliance of the section 85 of the
Evidence Act. The above aspect was not properly considered by the Court
below and erroneously gave a finding that the said Shri M.S.Paul is still
alive. Further, A5 came into box and deposed that the A9 was his friend
and he assured to get the security from A8. A9 also deposed that on the
request of the A5, he issued paper publication to request 3rd party
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collateral security. A8 was brought by the one Mr.Selvaraj to A9 and A9
met A8 and A8 agreed to give security for A5. A8 furnished the legal
opinion along with the documents and he entered into agreement with A8
under Ex.P106 and he specifically deposed that he never received any
document from A8. He acted only as a mediator and he has not even
received the service charges on the account of the relationship between
him and A5. Therefore, the case of A8 that she only handed over the
original documents is not correct and A8 executed all the documents
stating that she was the absolute owner after the demise of her father and
now she pleaded converse to save herself. She deposed that she was not
the owner of the property and she never intended to execute the mortgage
deed and hence her act amounts to estoppel and therefore her evidence
ought to have been rejected and seeks for acquittal.
6.2. The Learned counsel further submitted that A9 and A10 are
husband and wife and A9 acted as a partner of the A1 and A2 company
and A9 asked to enter into new business and the same required more than
Rs.1 crore investment and hence he informed that A8 was ready to give
collateral security. Therefore A8 gave consent and furnished the collateral
security. They believed the statement of A8 that she alone was the legal
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heir of Shri M.S.Paul. Therefore, they had no chance to verify death
certificate and legal heir certificate. In the said circumstances she stage
managed to save her skin and took the plea that she never produced the
said death certificate and legal heir certificate for the reason that he is
alive. Both prosecution and herself never produced any material to prove
that Shri M.S.Paul is alive. Hence, the prosecution case that this appellant
committed offence of forgery is not legally maintainable.
6.3. Upon the allegation in the FIR that there was a forgery of the
death certificate and the legal heir certificate of Shri M.S.Paul, the
appellants have settled the entire due amount before filing the final report.
They only acted on the basis of their trust upon A9. They sold their
property and settled the entire loan amount. They had no knowledge about
transaction entered between A8 and A9. They have transferred the amount
to A9's account. The Learned Judge has also observed that these
appellants have the transaction with the complainant bank from the year
1984 and they were good customers and they never committed any
misdeed. The Learned Judge also found that the company have good turn
over in all the years. Hence they seek for acquittal. In support of his
contention he relied the following judgments:
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Sl.No. Citation
1 CDJ 2001 SC 196
2 CDJ 2007 SC 363
3 (2010) 3 MLJ 49
4 2007(4) CTC 144
5 2004 (10) SCC 131
6 2010 (3) MLJ 49
7 CDJ 2007 SC 363
8 CDJ 2001 SC 196
9 2021 SCC Online All 210
7. The submission of the Learned Counsel Mr.A.K.Azagarsami,
for the A11 / appeallant in Crl.A.(MD).No.436 of 2021:
7.1. A11 is the branch manager during the relevant period of
occurrence. He has no role in the entire loan transaction. The regional
office alone verified the title and processed the loan and sanctioned the
same. According to the prosecution after sanctioning he is said to have
allowed A1 and A2 to withdraw the amount within two days i.e.,
29.03.2007 and i..e,. 30.03.2007 and therefore he is a party to the
diversion of the loan amount. A1 and A2 are standing customers and there
is no specific restriction to disburse the amount and he came into the box
as DW2 and deposed that the regional office orally instructed him to allow
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the transaction. His evidence has not been challenged during the cross
examination. It is his specific case that the regional head office asked him
to disburse the entire amount on the account of the year ending. Further,
there is no bar to disburse the same. The same was also admitted by the
PW1. PW1 is the circle head during the relevant period of the occurrence.
According to the PW1 allowing the customers to withdraw the amount
other than the loan purpose is only irregular and not illegal. Therefore he
seeks for the acquittal.
7.2. The Learned counsel further submitted that A8 came forward
with case that she had no knowledge about the contents of the mortgage of
deposit of title deed disclosing the death of her father and she specifically
pleaded that he is alive. Per contra A5 pleaded that her evidence is not
correct and she represented that her father was not alive and produced the
death certificate and legal heir certificate and now she cannot be allowed
to change the stand. She pleaded feigning ignorance intentionally to save
her skin. In view of two versions relating to the death of the Shri
M.S.Paul, benefit of doubt ought to have given to the accused, more
particularly when CBI is known as prestigious investigation agency in all
fairness should have collected some materials to prove that he was alive in
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Australia. Therefore, he seeks acquittal. To substatiate his contention he
relied the following judgments:
Sl.Nos. Citations
1. In the case of M/s Electronics Trade and Technology
Develioment Corporation Ltd., vs. Indian Technologists
and Engineers (Electronics) Pvt. Ltd & another reported in
1996 (1) SCR 843
2 In the case of State of Uttar Pradesh & Others vs.Brahm
Datt Sharma & others reported in 1987 SCC (2) 179
3 In the case of State of Maharashtra vs. Som Nath Thapa
reported in 1996 SCC (4) 659
4 In the case of B.H.Narasimha Rao vs. Government of
Andra Pradesh, rep by CBI reported in 1995 Crl.J 4181 (9)
SC
5 In the case of State of Tamil Nadu through Superintendent
of Police, CBI/SIT vs. Nalini and 25 others reported in
1999 (5) SCC 253
8. All the appellants herein commonly submitted that A9, A10, A12
are the main accused in this case and they have allegedly prepared the
forged death certificate and legal heir certificate and they have utilized the
loan amount and they were acquitted by this Court. In the said
circumstances, the appellants could not be isolated and convicted.
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9. Thiru. M.D.Poornachari, the Learned senior special public
prosecutor for CBI made the following submission :
9.1. This is the case of the known bank fraud and the appellants
herein conspired not only to commit offence and also conspired to escape
from the legal punishment by taking the planned two diametrically
opposite stand relating to the death of Shri M.S.Paul. A8 is not a rustic
village lady. She has also completed Montessori Course for educating the
children. She was well acquainted with the English knowledge. She also
deposed before the Court in English. Therefore, her stand that she was
unaware of the contents of the power of attorney and the deposit of title of
deeds disclosing the death of her father and legal heir certificate cannot be
accepted. She made the intentional false statement before this Court to
save her skin. Therefore her case is rightly rejected by the Learned Trial
Judge and there is no reason to interfere with.
9.2. A1, A2, A3 and A5 are closely associated with A9. Material
available from the records clearly established that they have had meeting
prior to the execution of the mortgage by A8. In the said circumstances,
the case of A1, A2, A3 and A5 that they have no knowledge about the
forgery of the death certificate and legal heir certificate ought to be
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rejected. The learned trial judge has not only considered the oral evidence
but also considered the circumstances which clinchingly proved the
conspiracy between A1, A2, A3, A5 and A8 to obtain the loan by making
false representation about the ownership of property. Therefore he seeks
to confirm the said finding.
9.3. The settlement of the amount after registration of the case is not
a ground to wipe out the criminal prosecution. The Learned Trial Judge
considered the said circumstances and showed his leniency by granting
only one year sentence of imprisonment. Therefore, there is no reason to
interfere with.
9.4. The CBI have collected all the materials to show that Shri
M.S.Paul was alive and also examined two material witness. The non–
examination of the said Shri M.S.Paul and non- submission of the any
documents collected from the Australia where he is said to have lived is
not a ground to disbelieve the sufficient material adduced before the
Court.
9.5. The discrepancy pointed out by the learned senior counsel for
A8 relating to the furnishing of the forged certificate and the non
examination of the Thiru.Mariamalai advocate are not relevant when A9
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specifically deposed that she only handed over the documents to the bank
coupled with the circumstances that she made affirmative statement in the
power of attorney registered in favour of A12 that her father was dead
leaving her alone as sole legal heir. Her evidence to contradict the
registered document cannot be accepted. The examination of witnesses
was conducted after lapse of serveral years even as CBI registered the case
after two years from the occurrence date. Therefore, the discrepancy is not
material one. Available evidence is sufficient to hold that the prosecution
proved its case beyond reasonable doubt.
9.6. The learned single judge of this Court acquitted A9, A10 and
A12 by segregating the appeals from other appeals and the same was
brought to the knowledge of the head of the department and they are
taking the steps to file appeal and also the said acquittal judgment is not a
ground to acquit this accused since the available material are clearly
sufficient to sustain the conviction passed by the Learned Trial Judge. In
this aspect he relied the judgment of the Hon’ble supreme Court reported
in 2002 (8) SCC 381. In support of his contention, he relied the following
judgments:
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Sl. Judgments
Nos.
1 In the case of Kashinath Monadal vs. State of West Bengal
reported in 2012 (7) SCC 699
2 In the case of CBI vs. Jagjit Singh reported in 2013 (10) SCC
3 In the case of Shafhi Mohammad vs. State of Himachal
Pradesh in SLP Crl.No.2302 of 2017, 2018 (2) SCC 801
4 In the case of Gopakumar B.Nair vs. CBI reported in 2014
(5) SCC 800
10. This Court considered the elaborate rival submissions made on
the either side and perused the volumes of records and the impugned
judgment and the precedents relied by them.
11. Now the question that arises for consideration of this Court in
this appeal is whether the conviction and sentence passed against the
appellants is legally sustainable inspite of the acquittal judgment passed
against the A9,A10 and A12 in Crl.A.(MD).No. 446 of 2021, 449 of 2021
and 460 of 2021.
11.1. Whether the sentence of imprisonment imposed by the learned
trial judge needs any interference.
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12.Discussion on merits:
A8 is named as Aarti Paul. Her father is Shri M.S.Paul. Her mother
is Smt.Hema Paul. Her younger sister's name is Avanthi Paul. PW 30 is
her maternal uncle. According to PW30, both Shri M.S.Paul and Smt.
Hema Paul got divorce and they were living separately. Shri M.S.Paul has
his residence at Australia. Smt.Hema Paul has her residence at U.S.A.
Avanthi Paul is with Smt.Hema Paul. Before divorce, Shri M.S.Paul
purchased a house property in the year 1977 and he left India and in the
said house A8 is living. The said house, contains two portions namely
ground floor and first floor. A8 after completing her +2 studies, she had
undergone Montessori Course for children and running a “Daycare” for
children in the portion of the house ever since 2002. To accommodate
more children, she wanted to avail interest free loan to renovate the house
and expand the “Daycare”. She informed the same to one of her staff
namely Kavitha. The said Kavitha introduced her to her husband
Sundaraman (LW37) and requested to help and arrange a loan. The said
Sundaraman, initially introduced the A12. A12 made assurance to arrange
the loan. To arrange the loan, he asked A8 to execute power of attorney in
his name. On 24.10.2005, A8 had executed a registered general power of
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attorney in favour of A12 under Ex.P94. But, A12 failed to obtain loan
and he prolonged the said process. Therefore, she again contacted L.W.37
and he introduced A9 at his office, T.Nagar, Chennai. A9 explained to her
working system of Nila Group of Companies and A9 entered agreement
with A8 to arrange interest free loan of Rs.10,00,000/- upon her furnishing
collatral security of her house. She agreed and she gave collatral security
of the property stood in the name of her father for the loan of A1 and A2
firms and executed the deed of memorundam of title of the property in
theSub-Registrar Office, Adayar, with the contents that her father had died
and she was only legal heir and she was the absolute owner of the
property. She also executed consent letter to the bank that she was ready
to give security of her property for the loan of A1 and A2 firms. After the
execution of the collatral security, loan amount was credited in the A1 and
A2 firms and the A1 and A2 firms said to have committed default in
repayment. Thereafter, bank officers conducted enquiry and the same
revealed that the title was defective and there was willful
misrepresentation about the death of the father of A8 and defrauding the
bank amount. Thereafter, the CBI registered the case and filed the final
report against A8. Now, A8 took a defence that her father was alive and
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she never handed over the death certificate of her father, legal-heir
crtificate of her father and she never executed deed of memorundam of
deposit of title deeds in favour of A1 and A2 firm with knowledge about
the contents of the documents. She also raised defence that the document
was concocted by the other accused. She also suspected the said document
was prepared in the advocate office who gave the legal opinion. But, the
learned Special Public Prosecutor appearing for CBI would submit that
she not only executed the deposit of title deed on 22.03.2007 but even
prior to that she also executed another registered power of attorney in
favour of A9 dated 23.08.2006. In the said power of attorney deed also she
represented as a absolute owner of the property. Further, she also sent a
letter to the Electricity Board to change her name with clear disclosure
about the death of her father on 10.03.2002 and she is the only legal heir.
She is well conversant with the English and in order to escape from the
proseuction, she stepped into witness box as D.W.5 and deposed that she
was cheated by the remaining accused.
12.1.The learned counsel appearing for A1, A2, A3 and A5 would
submit that A8 executed the deposit of title deed as a guarantor upon
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furnishing the number of documents including the death certificate of her
father, legal-heir certificate of her father and now for the best reason
known to her took a different stand about the death of her father. But, she
has not produced any evidence to show that her father was alive.
12.2.This Court has perused the following documents:
Exhibits Date Description of documents
Ex.P7 22.03.2007 Xerox Copy of agreement relating to deposit of tile
deeds executed by A8 in favour of Indian Bank at
S.R.O., Adayar
Ex.P8 22.03.2007 Consent Letter of A8 to the Senior Manager, Indian
Bank, Tenkasi Branch
Ex.P9 16.10.2006 Letter of A8 to TNEB, Adayar, Chennai
Ex.P10 22.03.2007 Consent letter of A8 to the Senior Manager, Indian
Bank, Tenkasi Branch.
Ex.P11 12.04.2002 Original Death Certificate of Shri.M.S.Paul.
Ex.P12 12.06.2003 Original Legal heir-ship Certificate of Shri.M.S.Paul
Ex.P13 22.03.2007 Agreement of Guarantee executed by A8 at Indian
Bank, Adayar.
Ex.P14 22.03.2007 Letter of A8 confirming extension of equitable
mortgage, executed at Adayar
Ex.P15 22.03.2007 Letter of A8 acknowledging the deposit of title deeds
executed at Adayar
Ex.P16 22.03.2007 Form 34 A executed by A8 acknowledging and
confirming the deposit of title deeds executed at
Adayar
Ex.P50 20.07.2006 Legal Opinion of Panel Advocate Shri.K.Maraimalai
about the Adayar property
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Ex.P51 15.02.2007 Legal opinion of Panel Lawyer Shri.S.Jones about the
Adayar property
Ex.P54 25.02.2007 Two cheque leaves (A/c.No.) drawn by Nila
Exporters and Marketing India Pvt.Ltd, for Rs.
5,00,000/- and for Rs.1,50,000/-
Ex.P55 25.02.2007 B.P.O's (2 in Nos.) purchased by Nila exporters and
Marketing India Pvt.Ltd., from A/c.No.720568644
Ex.P71 24.10.2005 General Power of Attorney executed by Tmt.Aarti
Paul infavour of K.L.Jayakumar (True copy)
Ex.P72 22.03.2007 Agreement relating to deposit of title deeds executed
by Tmt.Arti Paul infavour of Indian Bank (True
Copy)
Ex.P74 15.02.2002 Genuine Death Certificate issued by Corporation of
Chennai
Ex.P75 --- Death Registration Register Extract for 10.03.2002
(Attested copy)
Ex.P76 --- Death Registration Register Extract having
registration No.270 (Attested copy)
Ex.P94 24.10.2005 Xerox copy of General Power of Attorney executed
by Smt.Aarti Paul infavour of K.L.Jayakumar
Ex.P104 30.12.2008 Special Power of Attorney executed by Shri.M.S.Paul
Ex.P105 --- File containing 1 to 46 sheets
Ex.P106 --- File containing 1 to 24 sheets
Ex.P107 --- Receipt Memo along with Xerox copies of sale deed
in the name of Shri.M.S.Paul and agreement relating
to deposit of title deeds executed by Tmt.Aarti Paul.
Ex.P112 20.10.2008 Copy of Police complaint lodged by Tmt.Aarti Paul
with Central Crime Branch, Chennai.
12.3.This Court also considered the evidence of D.W.5, P.W.50,
D.W.4, P.W.44 and the explanation furnished by the appellant during the
proceedings under Section 313 of Cr.P.C.
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12.4.At the outset, this Court declines to accept the plea of A8 that
she never executed deed of memorundam of mortgage by deposit of title
deeds by giving her property as a security for the loan of A1 and A2 firm
by deed dated 23.02.2007 without knowledge of the contents of the
document. From the records and the evidence of A8, it is clear that after
completing her +2 studies, she had undergone Montessori Course for
children and running a “Daycare” for children in the portion of the house
ever since 2002. She had fluency in English. She also deposed in her chief
examination before the trial Court running more than 5 pages in English
and she meticulously replied herself to the cross examination of her
evidence in English.
12.5.The copy of memorundam of deposit of title deed marked as
Ex.P72. In Ex.P72, document No.11 is the death certificate of father of
A8, Document No.12 is the legal heir certificate of her father. A8
examined herself as D.W.5. She admitted her presence in the registration
office and also she subscribed her signature in Ex.P72. The said Ex.P72
itself was executed in English. Therefore, her sepcific stand that she was
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unaware of the contents of the document Ex.P72 and her mind did not
accompany with the contents of the documents has no legs to stand on for
the reason being that her evidence runs contrary to the contents of the
registered documents. No acceptable evidence is adduced to show that she
signed the document without knowing the contents of the memorundam of
deposit of title deed.
12.6.The prosecution case is further strengthened from the
memorudam of understanding entered between A8 and A9 and the same
was marked as a part of the documents under Ex.P106. Ex.P.106 is the
document creating the obligation upon A8 to give the collatral security of
the property on the basis of the undertaking that A8 agreed to receive
interest free Rs.10,00,000/- loan amount after signing the necessary
document in favour of the bank. She also received Rs.1,75,000/- as a cash
advance with signed receipt. The said document contained two following
material particulars subscribed by A8 in her own handwriting. She has
also admitted in her cross examination about the said material particulars:
She was questioned about the endorsement during her cross examination
which reads as follows:
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In Ex.P.106 memorandum of understanding, it is
stated that i hereby give me consent that I Aarti Paul wife
of Michael Muthu handed over all the original documents
relating to my house property bearing Door No. 25, 5th
Street, Padmanaba Nagar, Adayar, Chennai -20 to
Mr.Eshwar regarding his company collateral purpose on
this day of 25.02.2007 signed due to the best of my
knowledge, but I do not know the contents”.
12.7.From the abvoe reading of the evidence and the contents of the
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documents, this Court has no reason to accept her specific stand that she
was unaware of the contents and her mind did not accompany with
contents of the documents. In the considered opinion of this Court, she
had feigned ignorance in order to save her skin.
12.8. In Ex.P9, she also clearly submitted representation to the
Tamilnadu Electricity Board to change the Electricity Service connection
from her father name to her name stating that her father had died on
10.03.2002 and she was only the legal heir with annexure document of
legal heir certificate and the death certificate. In this also there is a
specific reference about the loan of A1 and A2 firms. Therefore, the
prosecution is correct in saying that A8 intentionally disclosed the false
particulars about her father's death from the following contents of the
document Ex.P9:
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13.The prosecution also produced the registered original power of
attorney deed executed by A8 in favour of A12 as Ex.P71 and the same
also contains about the affirmative statement of death of M.S.Paul on
10.03.2002 and A8 is sole legal heir. The material content of Ex.P71 is as
follows:
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“Mr.M.S.Paul died on 10.03.2002 at Chennai. Leaving
behind him, the principal AARTI as his only surviving legal
heir. The principal has been in continuous, uninterrupted
peaceful possession and absolute enjoyment therefore, with full
powers of alienation, without any let or hindrances, ever since
the date of succession”.
13.1. The said document was witnessed and attested by
Sundaraman (LW37) and Ponambalam (PW50). P.W.50 cogently deposed
about the said execution. Even A8 in her deposition has not denied the
same. The said power of attorney was executed in favour of A12 to
obtain loan. Subsequently, A12 failed to obtain loan and he prolonged the
said process. Therefore, she again contacted LW 37. The LW37 then
introduced her to A9 at his office T.Nagar, Chennai and she obtained the
loan upon execution of the deposit of title deed dated 22.03.2007. The
portion of the loan amount was also transferred by way of demand draft
dated 25.02.2007 and the said DD was form part of Ex.P106.
14. She was present in the registration office to register the deposit
of title deeds under Ex.P.72 and also she executed the same. The said
forged death certificate and legal heir certificate were annexed with Ex.P.
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4 and Ex.P11. Now she cannot be allowed to change her stand that she has
not furnished the legal heir certificate and death certificate. The said
deposit of mortgage deed was in English language and she also was
present in the said registration office and executed the same under Ex.P7
and the same was witnessed by A9. She also put the thumb impression in
the same. Further, she also wrote her name and address. Therefore, her
plea that she executed mortgage deed without knowledge of the legal heir
certificate and death certificate cannot be accepted. The death certificate
dated 12.04.2002 and the legal heir certificate dated 12.06.2003 also form
part of another deed namely power of attorney marked under Ex.P.8.
Therefore, prosecution has also produced another documentary evidence
to corroborate forgery of death certificate and legal heir certificate.
Further, on 16.10.2006, A8 submitted a requisition to the Assistant
Engineer No.II, Tamil Nadu Electricity Board, Adayar, Chennai under
Ex.P9. From the perusal of Ex.P106, it is clear that she received the notice
under the SARFAESI Act, by notice dated 07.07.2008. Thereafter, through
herself acknowledged about the forgery of document by the conspiring act
of remaining accused, she gave the complaint agaisnt A12 and other
accused before the Inspector of Police Crime Branch, Chennai and she
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also sent a communication to the Chief Manager Indian Bank Tenkasi on
16.09.2008 to drop the proceedings. From that day onwards, she took a
plea that his father was alive to save herself. Therefore, the plea of A8 that
she never furnished the particulars about the death of her father in the
above registered documents and other documents is stage managed one
and this Court is not inclined to accept the same.
15. In her complaint to the state police dated 16.09.2008, she stated
that she received notice under the SARFAESI Act on 07.07.2008 and she
collected the documents and found that A9 had played fraud and forgery
by creating certain fabricated documents such as death certificate and
legal heir certificate of her father and obtained the loan and her father is
still alive and working in Perth, Australia. The said police complaint has
not been investigated. On his failure to arrange a loan, A12 refused to
give said documents. Therefore, after arranging the loan with the A9 and
A5 she entered agreement with A9 to repay the said amount.The amount
was also transferred after the loan transaction in the name of A12. In her
evidence, she never disclosed in any of the above transaction and she
never denied the said document Ex.P106. Therefore, her plea that her
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father was alive is a stand taken subsequently. In any event, according to
the prosecution she is said to have produced the forged death certificate
and the legal heir certificate but she denied the same. This Court is unable
to accept the plea of the A8 on the following other reasons:
16.She also admitted that Bank Manager, A9 and A10 visited her
house in order to grant loan. Considering the cumulative circumstances,
this Court declines to accept contentions that she did not handover the
loan documents namely death certificate and legal heir certificate to A12.
A9 examined himself as D.W.4 and he specifically deposed that she only
handed over the original document of the death certificate and legal heir
certificate. Further, as per the agreement entered between herself and A9,
the amount was transferred to A12. Therefore, all the accused, as rightly
argued by the learned Special Public Prosecutor for CBI planned in
execution of the conspiracy in not only getting the loan and also tried to
escape from the legitimate prosecution by creating ambiguous defence
about the death of Shri Paul.
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17. P.W.44 has also clearly deposed that A5 and A8 frequently
assembled in the Madras Nila Office and had meeting. Ordinarily said
times of the meeting is not material to constitute the conspiracy, but, their
act of transmission of documents and the act of transfer of the amount
from A1 to A2’s account and then to A12 account to discharge the debt
amount of A8 which is said to have been given by A12 at the time of
execution of the power of attorney upon receipt of the original documents,
all cumulatively established their planned act of conspiracy to defraud the
bank by submitting the forged death certificate of Shri Paul and legal heir
certificate of Shri Paul to make believe the bank authorities to grant loan
to A1 to A2 as if A8 have had good title to the secured asset.
18. The prosecution clearly proved the involvement of A11 officer
in the entire conspiracy. The A8 in her evidence deposed that A9, A11
visited her house and made inspection and A11 also enquired about the
loan particulars. After the grant of loan, A11 allowed A5 and A3 to
withdraw the entire amount within a period of two days ie., 29.03.2007
and 30.03.2007. He allowed the withdrawal of the following amount as
against the loan condition and therefore, siphoning of the amount and
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diversion of the loan amount has been estashshed. The details of such
transfer are as under:-
A-1 limt Rs.90 lacs (on 20.03.2007) A/c.No.725439035
Relati
Sl. Cheq onshi Encashed
Amoun Cheque
No Date ue Favouring p with through Passed by
t signed by
. No. accus Bank
ed
Brothe
228,6 E.S.Ansar S.M.Naza r-in-
1 29.03.2007 50 lacs SBI Tenkasi G.Sridharan
02 Ali r (A-3) law of
A-5
Sheikh Friend
228,6 Indian Bank,
2 30.03.2007 9 lacs S.Syed Kani Mansur of A-3 Ayyamani & G.Sridharan
05 Tenkasi
(A-5) to A-8
Brothe
Sheikh
228,6 E.S.Abdul r in Indian Bank,
3 30.03.2007 9 lacs Mansur G.Sridharan
03 Kather law of Tenkasi
(A-5)
A-5
Sister
Ummal Sheikh of
228,6 Indian Bank,
4 30.03.2007 9 lacs Sahida Mansur mother G.Sridharan
04 Tenkasi
Begum (A-5) in law
of A-5
Sheikh Ayyamani &
228,6 W/o. Indian Bank,
5 30.03.2007 3.5 lacs S.Fathima Mansur
07 A-5 Tenkasi G.Sridharan
(A-5)
Sheikh W/o. Ayyamani &
228,6 Indian Bank,
6 30.03.2007 9 lacs S.Fathima Mansur
06 A-5 Tenkasi G.Sridharan
(A-5)
89.5
Total
lacs
A-2 limt Rs.40 lacs (on 20.03.2007) Bal-Rs.5.85 lacs Cr.-A/c.No.725441409
Sl . Cheque Cheque Relationship
Date Amount Favouring Bank Passed by
No. No. signed by with accused
Sheikh Friend of A-3, ICICI,
1 29.03.2007 228,702 7.8lacs Haseena G.Sridharan
Mansur (A-5) A-5 & A-8 Tenkasi
Sabeena “ Sheikh Sister of A-3, ICICI,
2 29.03.2007 228,701 8.7 lacs G.Sridharan
Sameena Mansur (A-5) A-5 and A-8 Tenkasi
Sheikh Friend of A-3, ICICI,
3 29.03.2007 228,703 8.5 lacs A.Wahab G.Sridharan
Mansur (A-5) A-5 & A-8 Tenkasi
Indian
Sheikh Friend of A-3
4 30.03.2007 228,705 5lacs Peer Mohd. Bank, G.Sridharan
Mansur (A-5) to A-8
Tenkasi
Sister of friend Indian
S.Ragumal Sheikh
5 30.03.2007 228,706 4 lacs of A-3, A-5 & Bank, G.Sridharan
Begum Mansur (A-5)
A-8 Tenkasi
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Indian
Sheikh Friend of A-3
6 30.03.2007 228,707 2.5 lacs S.Syed Kani Bank, G.Sridharan
Mansur (A-5) to A-8
Tenkasi
W/o. Indian
Sheikh
7 30.03.2007 228,704 9 lacs S.Fathima Bank, G.Sridharan
Mansur (A-5) A-5 Tenkasi
Total 45.5 lacs
19. All the witnesses deposed that A5 and A3 received the entire
amount from their account. Hence, the planned action of obtaining of loan
by giving the security with imperfect title and withdrawing the entire
amount within a period of two days which ought to have been allowed to
withdraw periodically for purchasing the goods and thereby committed
default in making the payment. Even though one of the witnesses has
admitted that diversion of the fund amount is only irregular and not
illegal, the prosecution produced the evidence to show that he not only
allowed the diversion of the fund against the loan terms, he had
participated in the entire fraudulent loan transaction and also he had not
verified the title as per the further direction of the regional office before
the disbursement of the loan. Apart from that, he also visited A8’s house
with the company of A9. Therefore, his plea that he has no role in the
above conspiracy and he only allowed A3 and A5 to withdraw the entire
amount within a period of two days at the instruction of the higher
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officials cannot be accepted. To screen his act, he took the stand that he
acted as per the direction of the regional office. The officer examined from
the regional office denied the same.
20. A3 and A5’s case that they believed A9 and A9 is none other
than one of the partners of the sister concern of the A1 and A2 and also
have had good relationship for number of years in their business. Their
argument cannot be accepted on the ground that A9 specifically deposed
that he arranged to third party collateral security to A5 and he had not
received any charges for the same for the reason being that he was a friend
for the number of years.
21.The following answer furnished by the appellants during their
examination under Section 313 of Cr.P.C., are also strengthened the
prosecution case of obtainment of loan on the basis of the forged
document and defraud of the bank amount:
nfs;tp: m/rh/1 jpU vd;/bka;ag;gd; nkYk; jkJ
rhl;rpaj;jpy;. nkw;go flDf;fhf brd;id milahW
gj;kehgd; efhpy; cs;s 8?k; vjphp Mh;j;jpghy; vd;gthpd;
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brhj;J <lhf bgwg;gl;Ls;sjhft[k;. mtuJ jfg;gdhh;
vk;/v!;/ghy; fhykhfp tpl;ljhf nghypahf ,wg;g[ rhd;wpjH;
bgwg;gl;L. mtUf;F 8?k; vjphp kl;Lnk thhpR vd
bgha;ahd thhpR rhd;wpjiH mspj;Js;sjhft[k; rhl;rpak;
Twf;nfl;Onu ePh; vd;d brhy;fpwPh;>
gjpy;: milahW tPL flDf;F <lhf bgw;wJ rhp/
Mdhy; nghyp ,wg;g[+thhpR rhd;W bfhLj;jJ vdf;F
bjhpahJ/
nfs;tp: m/rh/3 jpU/Mh;/rp/ghyfpUc&;zd; jkJ
rhl;rpaj;jpy;. to create EM and other bank formalities with
regard to the property in Plot No.27, House No.25/13, S.F.No.57,
57/1, 13, 14 for Adayar Branch bra;tjw;fhf 22.03.2007 Mk;
ehspl;l 8?k; vjphp m/rh/M/10 Consent letter
bfhLj;jjhft[k; rhl;rpak; Twf;nfl;Onu ePh; vd;d
brhy;fpwPh;>
gjpy; :bjhpahJ/ bjd;fhrp fpis nyhd; mjpfhhpa[k;
milahW t';fp mjpfhhpfSk; EM Vw;gLj;jpdh;/
nfs;tp: m/rh/4 jpU/vk;/gukrptk; jkJ rhl;rpaj;jpy;.
17/01/2007 md;W fpis nkyhsupd; ghpe;Jiu kw;Wk;
21/02/2007?k; ehspl;l further clarification?apd; nghpy;
rh;f;fps; jiyikapdhy; ,e;jpad; t';fp. bjd;fhrp
fpisapy; 2?k; vjphp epWtdj;jpw;F mDkjpf;fg;gl;l
U:/40yl;rk; OCC limit Fwpj;J 25/02/2007?Mk; ehspl;l
Sanction Ticket?ia jfty; mspj;jjhft[k;. terms and
conditions cld; Toa Sanction Ticket m/rh/M/18(5jhs;fs;)
vdt[k;. rhl;rpak; Twf;nfl;Onu ePh; vd;d brhy;fpwPh;>
gjpy;: rhp
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nfs;tp :m/rh/5 jpU/bcwg;rh; ucw;khd; nkYk; jkJ
rhl;rpaj;jpy;. 1?k; vjphp epWtdj;jpdhy; tiuag;gl;l
fPH;fz;l fhnrhiyfis fpis nkyhsuhd 11?k;
vjphpahy; pass bra;ag;gl;Ls;sjhft[k;.
thp ehs; fhnrh bjhif vth; bgahpy; m/rh/M/
ir iy
vz; vz;
1 29/03/200 228602 50.00.000 ,/v!;/md;rhh;my; m/rh/M/2
2 30/03/200 228603 9.00.000-? ,/v!;/mg;Jy; m/rh/M/2
3 30/03/200 228604 9.00.000-? ck;khs; rfpjh m/rh/M/2
4 30/03/200 228605 9.00.000-? iraj; fdp m/rh/M/2
5 30/03/200 228606 9.00.000-? v!;/ghj;jpkh m/rh/M/2
6 30/03/200 228607 3.50.000-? v!;/ghj;jpkh m/rh/M/2
1?k; vjphp epWtdj;jpd; fzf;F vz;/725439035?apd;
20/03/2007 Kjy; 19/03/2008 fhyj;jpw;fhd Statement of A/c
m/rh/M/26 (9jhs;fs;) vdt[k;. mjpy; nkw;brhd;d
m/rh/M/20 Kjy; m/rh/M/25 fhnrhiyfs; gw;wpa debit
fhzg;gLtjhft[k; rhl;rpak; Twf;nfl;Onu ePh; vd;d
brhy;fpwPh;>
gjpy;: tpahghuj;jpw;fhf vd epWtdk; Twpajhy; pass
bra;njd;/
nfs;tp:m/rh/5 jpU/bcwg;rh; ucw;khd; nkYk; jkJ
rhl;rpaj;jpy;. 2?k; vjphp epWtdj;jpdhy; tiuag;gl;l
fPH;fz;l fhnrhiyfis fpis nkyhsuhd 11?k;
vjphpahy; pass bra;ag;gl;Ls;sjhft[k;.
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thp ehs; fhnrh bjhif vth; bgahpy; m/rh/M/
ir iy
vz; vz;
1 29/03/2007 228701 8.70.000- rngdh m/rh/M/27
?
2 29/03/2007 228702 7.80.000- cwc&Pdh m/rh/M/28
?
3 29/03/2007 228703 8.50.000- mg;Jy; m/rh/M/29
? tcwhg;
4 30/03/2007 228704 9.00.000- ghj;jpkh m/rh/M/30
? nc&f;
5 30/03/2007 228705 5.00.000- gPh; KfkJ m/rh/M/31
?
6 30/03/2007 228706 4.00.000- ucw%khy; m/rh/M/32
? ngfk;
7 30/03/2007 228707 2.50.000- iraj; fdp m/rh/M/33
?
2?k; vjphp epWtdj;jpd; fzf;F vz;/725441409?apd;
20/03/2007 Kjy; 31/03/2008 fhyj;jpw;fhd Statement of A/c
m/rh/M/34 (8jhs;fs;) vdt[k;. mjpy; nkw;brhd;d
m/rh/M/27 Kjy; m/rh/M/33 fhnrhiyfs; gw;wpa debit
fhzg;gLtjhft[k; rhl;rpak; Twf;nfl;Onu ePh; vd;d
brhy;fpwPh;>
gjpy;: epWtd';fs; tpahghuj;jpw;fhf vd;W Twpajhy;
pass bra;njd;/
nfs;tp: m/rh/6 jpU/vk;/bre;jpy;Fkud; nkYk; jkJ
rhl;rpaj;jpy;. 1?k; vjphp epWtdj;jpd; m/rh/M/26
fzf;F gl;oaypd; gpufhuk; 29/03/2007. 30/03/2007
njjpfspy; m';ff P hpf;fg;gl;l fldhd U:/90.00.000-?
ypUe;J. U:/89.85.000-?I vLj;J jdp egUf;Ff;
bfhLf;fg;gl;Ls;sjhft[k;. 2?k; vjphp epWtdj;jpd;
m/rh/M/34 fzf;F gl;oaypd; gpufhuk; 29/03/2007.
30/03/2007 njjpfspy; m';fPfhpf;fg;gl;l fldhd
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U:/40.00.000-?ypUe;J U:/39.76.000-?I vLj;J jdp
egUf;Ff; bfhLf;fg;gl;Ls;sjhft[k; rhl;rpak;
Twf;nfl;Onu ePh; vd;d brhy;fpwPh;>
gjpy;: jtW. tpahghuj;jpw;fhf bfhLf;fg;gl;lJ/
21.2. A3, A5 after obtaining the loan of Rs.1,30,00,000/- they
withdrawn the same within a period of two days as against the loan
condition by issuing the cheques in the name of his relative and re-
transferred the same to him and failed to repay the amount and these
circumstances clearly proved the charge framed against them. Apart from
that as already discussed above they have actively participated in entire
loan transaction with the company of A8 and A11. Therefore, in all aspects
prosecution has clearly proved the case against the appellants and hence,
they are not entitled to acquittal.
22. Lapse on the part of the investigating agency and the
prosecution agency in not examining L.W.37 is immaterial in this case
when the other witnesses were examined to prove the execution of the
power of attorney in favour of A12 by A8. According to the prosecution,
A8 was in dire need of money and hence, L.W.37 introduced A12. A8
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executed power of attorney in favour of A12 to obtain loan. She also
handed over the original documents. For which, A12 handed over the cash
of Rs.1,30,00,000/-. To prove the execution of power of attorney,
investigating agency examined two witnesses, namely, L.W.37 and P.W.
50(Ponnambalam). The prosecution agency examined P.W.50 and
dispensed with L.W.37. It was open to A8 to examine L.W.37 as a defence
witness if he had made the statement in favour of her. The Prevention of
Corruption Act contains special provision to examine the defence witness.
Therefore, the non-examination of L.W.37, cannot be put against the
prosecution agency when the available evidence clearly established the
factum of execution of the power of attorney and the other transaction
entered by A8 with remaining accused.
23. The lapse on the part of the investigating agency is not material
when collected evidence is sufficient to convict the accused.
24.The acquittal of the A9, A10, A11, had no impediment to
consider the available materials to convict the appellants. This Court in
the appeal filed by them in Crl.A.(MD).Nos.446, 449 and 460 of 2021 has
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specifically held that they have no role either in the submission of the loan
application with forged document or execution of the mortgage by deposit
of title deeds by A8 in favour of the bank with forged document.
Therefore, as held by the Hon’ble Three Judges Bench of the Supreme
Court in the case of Achhar Singh v. State of H.P. reported in 2021 (5)
SCC 543 wherein it has reiterated the principle that even though some of
the accused were acquitted, the Court is not debarred from rendering
conviction on the available material leading to the conclusion of the
conviction in the following terms:
26. The learned State counsel has rightly relied
on Gangadhar Behera [Gangadhar Behera v. State of Orissa,
(2002) 8 SCC 381 : 2003 SCC (Cri) 32] to contend that even
in cases where a major portion of the evidence is found
deficient, if the residue is sufficient to prove the guilt of the
accused, conviction can be based on it. This Court in Hari
Chand v. State of Delhi [Hari Chand v. State of Delhi, (1996)
9 SCC 112 : 1996 SCC (Cri) 950] held that : (Hari Chand
case [Hari Chand v. State of Delhi, (1996) 9 SCC 112 : 1996
SCC (Cri) 950] , SCC pp. 124-25, para 24)
“24. … So far as this contention is concerned it must
be kept in view that while appreciating the evidence of
witnesses in a criminal trial especially in a case of
eyewitnesses the maxim falsus in uno, falsus in
omnibus cannot apply and the Court has to make
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efforts to sift the grain from the chaff. It is of course
true that when a witness is said to have exaggerated in
his evidence at the stage of trial and has tried to
involve many more accused and if that part of the
evidence is not found acceptable the remaining part of
evidence has to be scrutinised with care and the Court
must try to see whether the acceptable part of the
evidence gets corroborated from other evidence on
record so that the acceptable part can be safely relied
upon.”
(emphasis supplied)
25. The learned Senior Counsel for A8 submitted that A9 made the
forgery of the document and hence, she made a complaint immediately
after receiving the notice under Section 13(2) of SARFASEI Act.
Therefore, CBI has not followed the procedure stated under Section 210
of the Cr.P.C., The said submission of the learned Senior counsel cannot
be accepted on the ground that no case was registered on the basis of her
complaint. There was no action taken on the basis of her complaint. She
has not initiated any action to register the case. Without any registration of
the case with counter allegation, Section 210 of Cr.P.C., cannot come into
operation.
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26. Contradictions relating to custody of documents with advocates
who gave opinion are immaterial when the abundant evidence available on
records as discussed above with regard to commission of offence of
forgery of the death certificate and legal heir certificate. When she actually
participated in the execution of power of attorney. Memorandum of
deposit of title, submission of registration to transfer the electricity
connection in her name, her suspicious about preparation of said forged,
death certificate, legal heir certificate in the office of panal advocate of
bance no legs to stand. Similarly execution of MOU at Chennai and
obtained signature at Tenkasi on the same day is immaterial while the
prosecution case is not that the same was obtained on the same day. When
A8 took stand about his father's death contrary to the registered document
to save her, her suspicious on each circumstance can be said to have been
found out by her to save her skin. Therefore this court declines to accept
the same.
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27.Conclusion :-
The prosecution has clearly established that A8 gave the forged
death certificate and legal heir certificate as if she was the only legal heir
to her father and furnished her father's property as a security for A1 to A5
to obtain the loan with undertaking to receive portion of the said loan
amount and A1 to A5 obtained the loan with active connivance of the A11
bank manager and A1 to A5 also siphoned off the loan amount and
diverted the said amount as against the loan terms and thereby defrauded
the bank amount of Rs.1,30,00,000/-. It is a classical bank fraud case
where the accused not only conspired to commit the offence but also
continue the said conspiracy to escape from the legal punishment by
taking the planned two diametrically opposite stand relating to the death
of the A8’s father. A8 took the stand as her father was alive and A1 to A5
took a stand that the prosecution did not prove that the A8’s father is alive.
A8 deposed to the extent in order to save her skin that she never applied
her mind to the contents of the documents when she admittedly conversed
only with English language and she also completed her Montessori course
for children. Apart from that she also took a stand that the advocate office
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committed the forgery is without any evidence. Therefore in all aspects,
the prosecution clearly proved the case against the appellants. The
acquittal judgment against the remaining accused has no bearing in this
case when the prosecution clearly established the case against the
appellants herein. Therefore this Court declines to accept the argument of
the learned counsel appearing for the appellant that the prosecution has
not proved the case beyond reasonable doubt. This Court concurs with
finding of the learned trial judge in convicting the appellants. Accordingly,
this Court confirms the conviction passed against the appellants in
C.C.No. 8 of 2011.
28. Question of sentence :-
A8 and A1, A2, A3, A5 were in need of money. A8 in order to
develop her school, she needed money. A1, A2, A3, A5 in order to develop
their business needed money. Immediately, after receipt of the notice
under the SARFAESI Act, entire loan amount was settled. A1, A2, A3, A5
are the long standing customers of the bank. Even though, they withdrew
the amount and diverted this particular loan amount, they were keeping
the account with sufficient funds. Apart from that the bank officials also
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deposed that they are good customers and have been continuing the
account for past number of years without any allegation. Similarly A8 is a
lady and she also has no antecedents. As observed earlier, entire loan
amount was settled before registration of the case and her share in the
property is sufficient to discharge debt. Therefore, appellants in both
appeals in 457 & 439 of 2021 are deserved to reduction of sentence of
imprisonment. In view of the above mitigating circumstances, this Court
inclines to reduce the sentence of the imprisonment imposed by the Court
below into sentence which was already undergone.
28.1. So far the sentence of imprisonment imposed against A11
manager is concerned, this Court is duty bound to follow a different
yardstick. On the basis of independant charge under section 13(2) r/w
13(1)(d) of P.C. Act, 1988 and conviction and sentence to undergo
Rigorous Imprisonment for one year this court has no option except to
confirm sentence imposed by trial court.
29. Accordingly the Crl.A.(MD) No. 436 and 439 of 2021 is partly
allowed in the following terms:
29.1. Conviction passed against the appellant in C.C.No. 8 of 2011
on the file of the Learned II Additional District Judge, for CBI Cases,
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CRL.A(MD).Nos.436, 439 and 457 of 2021
Madurai dated 27.09.2021 is confirmed.
29.2. The sentence of imprisonment passed against the appellant is
reduced to the period already undergone by him.
30. Accordingly the Crl.A.(MD) No. 457 of 2021 is dismissed
confirming the conviction and sentence imposed in C.C.No. 8 of 2011 on
the file of the Learned II Additional District Judge, for CBI Cases,
Madurai dated 27.09.2021 is confirmed.
30.1. All the Sentence of imprisonment shall run concurrently. The
period already undergone by the appellant shall be set off against the
terms of imprisonment awarded to him under Section 428 of Cr.P.C.
30.2. The bail bond executed by the appellant is hereby cancelled
and the learned trial judge is directed to secure the accused to undergo the
remaining part of sentence of imprisonment.
04.03.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
sbn
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CRL.A(MD).Nos.436, 439 and 457 of 2021
To
1. The II Additional District Judge for CBI Cases,
Madurai District.
2. The Deputy Superintendent of Police,
CBI/EOW, Chennai.
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.436, 439 and 457 of 2021
K.K.RAMAKRISHNAN,J.
sbn
CRL.A(MD).Nos.436, 439 and 457 of 2021
04.03.2025
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