Madras High Court
S.Ayyamani vs The Inspector Of Police on 4 March, 2025
Crl.A.(MA).No.47 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 22.07.2024
Pronounced On : 04.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A(MD)No.47 of 2019
S.Ayyamani .. Appellant
Vs.
The Inspector of Police,
CBI:EOW:Chennai,
RC 11 (E)/2009. .. Respondent
Prayer: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code, to call for the records relating to the case in
C.C.No.7 of 2010, on the file of the II Additional District Court for
CBI Cases, Madurai and set aside the conviction and sentence dated
05.02.2019 imposed on the appellant.
For Appellant :Mr.B.Kumar
Senior Counsel
For Respondent :Mr.Pooranachari
Senior Special Public Prosecutor
1
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Crl.A.(MA).No.47 of 2019
JUDGMENT
The appellant A1 in the C.C.No.7 of 2010, on the file of the II
Additional District Court for CBI Cases, Madurai has filed this
appeal before this Court, challenging the judgment dated 05.02.2019
whereby, the learned trial Judge convicted the appellant for the
following offences:
S. Offences under Section Punishment (Imprisonment and
No fine)
1 120-B r/w 409 of IPC Undergo Rigorous Imprisonment of
10 years and to pay a fine of Rs.
25,000/- in default to undergo
Simple Imprisonment for One year
2 120-B r/w 420 of IPC Undergo Rigorous Imprisonment of
7 years and to pay a fine of Rs.
25,000/- in default to undergo
Simple Imprisonment for One year
3 120-B r/w 420 r/w 109 of Undergo Rigorous Imprisonment of
IPC 7 years and to pay a fine of Rs.
25,000/- in default to undergo
Simple Imprisonment for One year
4 120-B r/w 467 of IPC Undergo Rigorous Imprisonment of
10 years and to pay a fine of Rs.
25,000/- in default to undergo
Simple Imprisonment for One year
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S. Offences under Section Punishment (Imprisonment and
No fine)
5 120-B r/w 468 of IPC Undergo Rigorous Imprisonment of
7 years and to pay a fine of Rs.
20,000/- in default to undergo
Simple Imprisonment for One year
6 120-B r/w 471 of IPC Undergo Rigorous Imprisonment of
10 years and to pay a fine of Rs.
25,000/- in default to undergo
Simple Imprisonment for One year
7 120-B IPC r/w 13(2) r/w Undergo Rigorous Imprisonment of
13(1) (c) of Prevention of 7 years and to pay a fine of Rs.
Corruption Act, 1988 25,000/- in default to undergo
Simple Imprisonment for One year
8 120-B of IPC r/w 13(2) Undergo Rigorous Imprisonment of
r/w 13(1) (d) of 7 years and to pay a fine of Rs.
Prevention of Corruption 25,000/- in default to undergo
Act, 1988 Simple Imprisonment for One year
9 409 of IPC Undergo Rigorous Imprisonment of
10 years and to pay a fine of Rs.
25,000/- in default to undergo
Simple Imprisonment for One year
10 420 of IPC Undergo Rigorous Imprisonment of
7 years and to pay a fine of Rs.
25,000/- in default to undergo
Simple Imprisonment for One year
11 467 of IPC Undergo Rigorous Imprisonment of
10 years and to pay a fine of Rs.
25,000/- in default to undergo
Simple Imprisonment for One year
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S. Offences under Section Punishment (Imprisonment and
No fine)
12 468 of IPC Undergo Rigorous Imprisonment of
7 years and to pay a fine of Rs.
20,000/- in default to undergo
Simple Imprisonment for One year
13 471 of IPC Undergo Rigorous Imprisonment of
10 years and to pay a fine of Rs.
25,000/- in default to undergo
Simple Imprisonment for One year
14 13(2) r/w 13(1)(c) of Undergo Rigorous Imprisonment of
Prevention of Corruption 7 years and to pay a fine of Rs.
Act, 1988 25,000/- in default to undergo
Simple Imprisonment for One year
15 13(2) r/w 13(1)(d) Undergo Rigorous Imprisonment of
Prevention of Corruption 7 years and to pay a fine of Rs.
Act, 1988 25,000/- in default to undergo
Simple Imprisonment for One year
Total Fine Rs.3,65,000/-
2. Brief facts of the case:
Sree Gokulam Chit and Finance Co.Pvt.Ltd., Chennai made
fixed deposit of Rs.6,00,00,000/- (Six Crores Only) in Indian Bank,
Kadayanallur Branch, Tirunelveli, wherein, the appellant was
working as a manager. He, A2/Dr.K.Venkateswaran(Deceased),
A3/Smt.Maya Ram and the remaining accused conspired together
to cheat the bank and defraud the bank amount by availing a loan
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of Rs.3,96,00,000/- (Three Crores Ninety Six lakhs only) on the basis
of the forged F-93 (third party letter of pledge of securities) of Sree
Gokulam Chit funds with forgery of the signature of the authorised
representative of Sree Gokulam Chit funds and obtained the loan
and misappropriated the said amount and thereby caused wrongful
loss to the bank and hence, the CBI registered the case against A1
and other accused for the offences under Sections 120-B r/w 409 of
IPC, 120-B r/w 420 of IPC, 120-B r/w 420 r/w 109 of IPC, 120-B r/w
467 of IPC, 120-B r/w 468 of IPC, 120-B r/w 471 of IPC, 120-B of
IPC r/w Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act,
1988, 120-B of IPC r/w Section 13(2) r/w 13(1)(d) of Prevention of
Corruption Act, 409, 420, 467, 468, 471, 13(2) r/w 13(1)(c) of
Prevention of Corruption Act, 1988, and 13(2) r/w 13(1)(d) of
Prevention of Corruption Act. Thereafter, CBI conducted
investigation and filed the final report before the II Additional
District Court for CBI Cases, Madurai, against seven accused and
the same was taken on file in C.C.No.7 of 2010 and the Court
summoned the appellant and furnished the copies under Section
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207 Cr.P.C., and framed necessary charges and questioned the
accused. The accused denied the charges and stood for trial. The
prosecution, to prove the charges, examined PW-1 to PW-23 and
exhibited Ex-P1 to Ex-P89.
3. The learned Trial Judge, questioned the accused under
Section 313 Cr.P.C., by putting the incriminating materials available
against him and the accused denied the same as false and gave
different explanation. Thereafter, the case was posted for
examination of the defence witnesses. The accused neither
examined any witness nor marked any documents.
4. After considering the explanation and evidence on record
the learned trial Judge convicted the accused for the above said
offenses. During the course of the trial, A2 died before framing
charges and the remaining convicted accused A3, A4 also died after
the judgment and the learned trial Judge acquitted the remaining
accused.
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5. The learned counsel for the appellant submitted that he was
the manager of the bank. He granted loan on the basis of the
document furnished by A3. It is not the duty of this officer to verify
the genuineness of the said documents. If each and every document
is viewed with a suspicious eye, then the bank can not run.
Moreover, A2 was a famous Doctor in the said locality. He had
good reputation. In the said circumstances, he granted loan on the
basis of the documents furnished by him. Apart from that, the same
were verified by the loan department of the said bank. According to
the finding of the learned trial Judge, A2 forged the said F-93. In the
said circumstances, without any connecting material to prove the
conspiracy between A1 and A2, and also in the absence of material
to prove the conspiracy between the accused, and in the absence of
any material to show that he appropriated the said amount with A2,
the charge under Section120(b) of IPC and the other offences are not
legally sustainable. Hence, he seeks for setting aside the conviction
judgment passed against him and he relied the following judgments
:-
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Sl.No. Judgments
1 2016 (7) SCC 797 U.Subhadramma & others Vs State of
Andhra Pradesh and another.
2 2008 (13) SCC 703 Aneeta Hada Vs Godfather Travels &
Tours Private Limited.
3 2012 (5) SCC 661 Aneeta Hada Vs Godfather Travels &
Tours Private Limited (FB).
4 2017 (8) SCC 1 State of Jharkand Vs Lallu Prasad Yadav
5 2011 (2) MWN (Cr) 47 J.Duraimunusamy and others Vs
State
6 AIR 1949 Mad 9 Seraje Narayanana Bhatta & others in Re.
7 2018 (7) SCC 581 Sheila Sebastian and R.Jawaharaj and
another
8 2003 (12) SCC 670 L.Chandraiah Vs State of A.P. and
another.
9 1984 (supp) SCC 207 Jethsur Surangbhai Vs State of
Guajarat
5.1. According to the learned senior Counsel, A2 died on
18.11.2013. Hence, the case was dismissed as charge abated as
against A2 on 21.01.2014. Thereafter, the charges were framed in the
year 2016. In the said circumstances, the framing of charges against
dead person and finding of the learned trial Judge that A2
committed forgery is against the law laid down by the Hon'ble
Supreme Court in the case of U.Subhadramma v. State of A.P.,
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reported in (2016) 7 SCC 797. He also further submitted that as per
the the Judgment of the Hon'ble Supreme Court in the case of
Aneeta Hada v. Godfather Travels And Tours (P) Ltd., reported in
(2008) 13 SCC 703, the decision of the Hon'ble Justice S.B.SINHA
was approved by the Larger Bench judgment in the case of Aneeta
Hada v. Godfather Travels & Tours (P) Ltd., reported in (2012) 5
SCC 661. The finding of guilt could not be made against the dead
person. The conviction cannot be granted against a non-existent
person. He also argued that as per Aneeta Hada case, unless the
company is heard and evidence against company is adduced, the
conviction cannot be maintained against the other persons also. He
mainly relied this proposition that whenever, there is an accusation
against any person, he must be heard to disprove the accusation.
Unless, the charge is framed against him, no finding can be given
against dead person/A2. He stated that the conviction against the
dead person is nullity and hence, on the basis of the said finding,
conviction by the leaned trial Judge under Section 120(B) of IPC
against appellant is not legally maintainable.
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5.2.Apart from that, the learned Senior counsel submitted that
according to the prosecution, the signature of the P.W.10, P.W.13,
P.W.14, P.W.15 and P.W.17 was forged. To prove the forgery, the
specimen signature of the second accused was not taken in
accordance with the law and same was not sent to the hand writing
expert's opinion. As per Section 73 or 45 Indian Evidence Act, the
comparison can be made only with the admitted signature. Here,
there is no clear version relating to the admitted signature. In the
said circumstances, the finding and conviction given by the learned
trial Judge, on the basis of the handwriting expert's opinion without
any corroborative evidence, under Section 468 of IPC, is not legally
sustainable. Hence, he seeks for the acquittal.
5.3. According to the learned senior counsel, six loans were
granted. The said six loans are spread over various dates. In the six
loans, all the parties were not the same persons. Hence, separate
charge and the separate trial ought to have been conducted for each
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offences. Therefore, joint trial is bad in law, on the ground of mis-
joinder of charges. For which, he relied the Judgment of the Hon'ble
Supreme Court in the case of State of Jharkhand v. Lalu Prasad
yadav, reported in (2017) 8 SCC 1 and also he relied the judgment
of 2011 (2) Mad Weekly Notes (Crl.) 47. Apart from that, he also
relied Full Bench Judgment of this Court reported in AIR 1949 Mad
9. On the basis of the above precedents, the learned Senior Counsel
submitted that separate occurrences spread over various periods are
to be tried separately against separate persons. In the back drop of
the said illegalities, retrial is also not possible in this case, on the
account of the death of the remaining accused. Hence, on the basis
of following principle of law laid down by the Hon'ble Supreme
Court reported in 2016 (7) SCC 797, there is no scope for retrial in
this case on the ground that many of the accused are dead and there
is no possibility of conducting trial against only the remaining
accused. Moreover, for the offense under Section 120(b) of IPC, two
persons must be tried for the cases, but, in this case, there was no
such element. Hence, he seeks for acquittal.
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5.4. The learned Senior Counsel further submitted that in the
impugned judgment, the learned trial judge gave a finding in four
or five paragraphs. In all the five paragraphs, he has not even
discussed the evidence in an elaborate manner to convict the
accused. He simply recorded the provisions and rendered finding of
conviction only on surmise. In the said circumstances, the finding of
the learned trial Judge is without reasoning and not on the basis of
proper appreciation of the evidence. Hence, he seeks for acquittal.
The learned trial judge did not make any discussion about the
ingredients under Sections 13(1)(c) and 13(1)(d) of the Prevention of
Corruption Act. In the said circumstances, the learned trial Judge
did not consider the evidence and the other legal aspect argued by
the learned counsel for accused and hence, he seeks for acquittal.
Apart from that, the learned Senior Counsel submitted that the
incriminating material, assumed by the learned trial Judge was not
put to the accused while questioning under Section 313 Cr.P.C., and
hence, the trial is vitiated.
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5.5.The learned Senior counsel further submitted that the
finding of the learned trial Judge under section 109 of IPC is not
maintainable. In this case, there is no positive Act on the part of this
accused. According to the learned Senior Counsel, intentional
aiding, a positive Act is absent conspicuously in this case, for which,
he relied the judgment of the Hon'ble Supreme Court reported in
2020 (7) SCC 722 Paragraph Nos.56, 57, 58, 60, 61. According to the
investigating agency intentional Act was done by A2, ie., the forgery
of F-93. In the said circumstances, after his demise, the charge
against the abetment of the offence is legally not maintainable.
Hence, he seeks for acquittal.
5.6. Apart from that, the learned Senior Counsel further
submitted that the ingredient under Section 467 IPC is not made
out, for which, he relied the judgment of the Supreme Court
reported in 2018 (7) SCC 581, namely, Sheila Sebastian versus R.
Javagaraj. On the basis of the judgment, he stated that, unless there
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is clear evidence to show that A1 forged signature of the authorised
representative of Sree Gokulam Chit funds, conviction for the above
said charged offence is not maintainable. The case of the
prosecution is that, the loan amount was fraudulently obtained by
forging the signature of the Sree Gokulam Chit fund authorised
representative. In that event, unless, a complaint emanates from that
person, the complaint by the bank officer about the forgery is not
maintainable. In the said circumstances, he seeks for acquittal.
5.7. The learned Senior counsel further submitted that the
learned trial Judge gave a finding that A1 violated the Rules of the
bank and the charges are also in similar line. In the said
circumstances, neither the investigating agency collected any rules
nor the prosecution proved any rules. Without any rules, the finding
of the learned trial Judge that A1 violated the rule is misconceived
one and hence, he seeks for acquittal. The learned Senior Counsel
further submitted that the petitioner was working in the department
without any other charges or any other proceedings before this case.
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Even in this case, allegation is made without any materials.
According to the learned Senior Counsel the fixed deposit of all the
above witnesses existed in the bank. There is no dispute over it. The
loan amount granted was around 60% of the above said fixed
deposit amount. Hence, there was no scope for defrauding the bank.
In the said circumstances, if there was any default of payment, the
authority has jurisdiction to invoke the recovery proceedings
against the borrower. In the said circumstances, on assumptions and
presumptions, the conviction was rendered by the Court below
against the appellant. In the said circumstances, he seeks for
acquittal.
5.8.The specific case of the prosecution is that A2 forged the
signature and seal of the company, namely, Gokulam Chit Funds
Finance Company, Kodambakkam. The investigating officer
admitted in his evidence, that he has not secured the seal and sent
for analysis and he has also not collected any banking procedure
and rules. In all aspects, the prosecution miserably failed to prove
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the case. But the learned trial Judge has given a cryptic judgment
devoting only four paragraphs without discussing any evidence and
also law. In the said circumstances he seeks for acquittal.
6. Submission of the learned special public prosecutor for
CBI :-
6.1. The submission of the learned senior counsel on the basis
of the judgment of the Hon'ble Supreme Court reported in 2016 (7)
SCC 797, is misconceived and the same is not applicable to the
present case. The issue of continuation of the trial against the dead
person is specifically addressed by the Hon'ble Supreme Court in
the case of state of Karnataka Vs Selvi J.Jeyalalitha and others and
another three judge Bench of Hon'ble Supreme Court in the case of
State of Tamil Nadu Vs Nirmala in Manu/SC/1448/2017. The
Hon'ble Supreme Court clearly laid down the law that the death of
the main accused does not result in abatement of trial. Therefore, the
learned special public prosecutor for CBI seeks to reject the
argument of the learned senior counsel for the appellant.
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6.2. He would further submit that F-93 had been forged by the
deceased A3 and on the basis of the said forged F-93, A1 namely the
appellant branch manager of the bank facilitated granting loan and
therefore the prosecution clearly proved the conspiracy. It is duty of
A2 to not only verify the genuineness of F-93, but he also has a duty
to confirm with the concerned person relating to the F-93 and get
approval from him to grant loan on the basis of the F-93. The
omission of said procedure clearly proves the conspiracy between
A3 and A1. The prosecution clearly proved the above said forgery
and the grant of loan on the basis of the forged document through
various documents namely Ex.P12 to Ex.P17, Ex.P.20 to Ex.P.24,
Ex.P28, Ex.P30, Ex.P32 and also the corresponding evidence PW17,
PW18, PW19, PW22, PW8 and PW9. Therefore the learned trial
judge correctly convicted the appellant.
6.3. The argument of the learned senior counsel that CBI
committed error in filing the consolidated final report without filing
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a separate final report for each transaction caused prejudice and
miscarriage of justice is misconceived one. If a separate final report
is filed and separate trial is conducted, the appellant would get the
punishment in each trial. Apart from that there is a common
conspiracy on the part of the A1, A2 and A3 to defraud the bank
amount on the basis of the forgery of F-93. All the beneficiaries are
A1 to A3. Therefore the learned trial judge correctly accepted the
consolidated final report filed by CBI and trial was conducted. The
learned special public prosecutor would further submit that
defrauding of the bank amount and the forgery of F-93 with active
connivance of the appellant, was proved and therefore the sentence
of imprisonment is not liable to be reduced.
7.Discussion on the plea of abatement of charge:
The appellant was the Branch manager of the Indian Bank,
Kadayanallur Branch, Tirunelveli and he and the other accused are
said to have defrauded bank amount of Rs.3,96,00,000/-. He was
arrayed as A1 in the C.C.No. 7 of 2010 on the file of the II Additional
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District Court For CBI, Madurai along with the following accused:
1. S. Ayyamani.
2. Dr. K. Venkateswaran (Died)
(Died on 18.11.2013; Charge against him was abated
as per order of this court dated:23.01.2014)
3. Smt. Maya Ram.
4. Smt. Uma Maheswari.
5. Rathinasamy Ashokan.
6. P. Nandan.
7. M.J. Venkataraman.
(Died on 14.12.2017; Charge against him was abated
as per order of this court dated: 02.03.2018)
7.1. A2 doctor Venkateswaran was running a nursing home in
the name of “ALA Memorial Nursing Home, Tenkasi”. A3 was
running one “Maya consultancy” and she contacted A4 to arrange
the loan. A1, A2, A3 and A4 conspired to withdraw the amount of
the Sree Gokulam Chits and Finance Company Pvt Ltd., illegally
and fraudulently created F-93 with forged entry of the competent
officer of the Sree Gokulam Chits and Finance Company Pvt Ltd.,
authorized to give loan on the basis of the fixed deposit made in the
said bank. In the said process remaining accused acted as middle
men. According to the prosecution A2 deceased doctor forged the
signature of the competent persons of the Sree Gokulam Chits and
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Finance Company Pvt Ltd., and applied for loan and A1 granted
loan on the basis of the documents submitted by him without
getting the concurrence from the competent officer of the Sree
Gokulam Chits and Finance Company Pvt Ltd. The prosecution
collected the document to prove the forgery of the said F-93 with
manipulation of the signature of the officer of Sree Gokulam Chits
and Finance Company Pvt Ltd., and also proper final report was
filed with adequate materials to prove the forgery of the said
document. The said document was acted upon by the appellant and
loan amount was credited in the account of A2 and the same was
withdrawn and misappropriated. Therefore, the learned trial judge
framed the charges and posted for the trial. At this stage A2 died on
18.11.2013 and the learned trial judge passed the order on 23.01.2014
that the charge framed against the said persons stands abated.
Thereafter, the trial was continued and the learned trial judge has
considered the entire evidence and convicted the appellant. The
learned trial judge has rendered a finding that the prosecution
proved that A2 forged the signature of the competent officer of the
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Sree Gokulam Chits and Finance Company Pvt Ltd., in F-93. On the
basis of the said forged F-93, appellant had sanctioned the loan and
allowed A2 to withdraw the amount. Therefore, the learned trial
judge convicted the appellant as stated above.
7.2.Now the learned senior counsel primarily submitted that
the convicting the appellant on the basis of the finding that the
prosecution proved the case of forgery of the signature of the
competent officer of Sree Gokulam Chits and Finance Company Pvt Ltd.,
in the F-93 and hence charge against the appellant is proved, is not
legally valid. The learned senior counsel strenuously contended that
finding against dead person, namely, A2 is not legally sustainable
one. According to the senior counsel as per the 2016 (7) SCC 797, the
finding against A2 is illegal and hence the decision of the learned
trial judge against that person is not legally valid. Therefore, the
conviction imposed against the appellant on the basis of the said
forged F-93 cannot be sustained.
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7.3. In the considerable opinion of this court the said
contention is a misconceived one. In the said judgment of the
Hon’ble Supreme Court in the 2016 (7) SCC 797, the learned District
judge had proceeded with the attachment of the proceedings under
section 3 of the criminal law amendment Ordinance, 1944 against
the accused who was actually dead. The said attachment
proceedings was based on the conviction passed against the said
accused person after his death. Therefore, the Hon’ble Supreme
Court has observed that continuance of the attachment proceedings
against the accused who was already dead after framing of charges
is illegal. In this case, the factual situation is different. The charges
were framed against the said A2. The learned judge proceeded trial
against the appellant alone and no conviction was passed against
A2. The learned trial judge only made an observation that the said
person also committed forgery of the F-93. The learned senior
counsel in the said circumstances made further submission based on
the judgment of Hon’ble Supreme Court 2008 (13) SCC 703 and
2012 (5) SCC 661 that the said finding is illegal without hearing the
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said deceased accused, is misconceived. This court is not inclined to
accept the said argument. In the said judgment, which arose out of
section 138 of Negotiable Instrument Act, there was submission
relating to non arraying of the company, while prosecuting the
director, which is fatal. One of the observations of the Hon’ble
Supreme Court in the said decision is that without hearing the
company, the liability cannot be fixed on the director. Since,
Directors discharged the duty on behalf of the company.
7.4. Claiming of lack of opportunity of hearing to dead person,
to disprove the case of the prosecution against the appellant is
unknown to criminal trial. When the accused dies during the
pendency of the trial, under the Code of Criminal Procedure, there
is no legal impediment to try the case against the remaining
accused. There is no abatement of trial. Abatement of accusation is
against the Code of Criminal Procedure. If the accused dies with
accusation of charges, before trial he dies with stigma of accusation.
If he dies after proof of allegation and conviction, he dies with
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stigma of conviction. If he dies after acquittal of charges, he dies
with erasement of accusation and affirmation of the presumption of
the innocence. Accusation never dies. Therefore, legislature
consciously omitted to bring any provision, as in the case of C.P.C.
7.5.Apart from that, subsequent legal development after the
delivery of the judgment of the Hon’ble Supreme Court in 2016 (7)
SCC 797, is otherwise. The Hon’ble Supreme Court in the case of
state of Karnataka Vs Selvi J.Jayalalitha and others reported in
2016 (7) SCC 797 has held different view. In the said case the specific
contention was that after the death of the main accused, the
conviction cannot be passed against the remaining accused. The
Hon’ble Supreme Court has not accepted the said principle. In the
said case , Selvi J.Jayalalitha was the chief minister of the Tamil
Nadu. She and the other accused conspired together to accumulate
income disproportionate to the income of the Selvi J.Jayalalitha chief
minister. The case of the prosecution was that ill gotten money of
Selvi J.Jayalalitha chief minister was accumulated in the name of the
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remaining accused who were not the public servants. After the
death of the said Selvi J.Jayalalitha chief minister, the argument was
advanced by many eminent senior advocates to set aside the
conviction against the remaining accused. The said contention was
not accepted by the Hon’ble Supreme Court. Further the latest three
judges bench of Supreme Court in the case of state of Tamil Nadu
Vs Nirmala in Manu/SC/1448/2017 has not accepted the similar
contention of the accused and declined to approve the decision of
this court that the charge against the remaining accused
automatically abated on the death of the main accused during the
course of the trial. The Hon’ble Three judges bench approved the
decision of the judgment of state of Karnataka Vs Selvi
J.Jayalalitha and others reported in 2016 (7) SCC 797. Therefore,
this Court finds no substance in the contention of the learned Senior
counsel that the learned trial Judge committed error in rendering
finding of forgery of the signature of the authorised representative
of the Sree Gokulam Chit funds by A2. In view of the development
of law, this Court is unable to accept the argument of the learned
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senior counsel that the trial court's finding that A2 (deceased)
committed forgery of the document, is illegal. Once charges are
framed against number of persons, they become accused/offenders
and during the continuance of the trial, even if any accused died, the
court has power to proceed with the trial and in the course of the
trial, there was no bar to record a finding on the role of the deceased
person in the conspired criminal activities. Therefore, as per the law
laid down by the Hon'ble Three Judges Bench that the death of the
main accused does not result in abatement of trial, this court is
unable to accept the main submission made by the learned senior
counsel that the finding of the learned trial judge against A2 is
illegal.
8. Discussion on merits:
In this case deceased A3 presented the F-93. On the basis of
the F-93 the appellant without following the procedure, granted
loan. It is the specific case of the prosecution that Sree Gokulam
Chits and Finance Company Pvt Ltd., made a fixed deposit in A1's
branch. As per the bank procedure, on the basis of the fixed deposits
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loan could be granted and the said fixed deposit amount could be
treated as security. But before granting such loan, the bank
manager, namely, A1 has a duty to verify the genuineness of the
said F-93. Not only the duty to verify the F-93, it is also duty to ask
the competent person before granting loan. In this case the bank
manager has not followed any of the procedure. He flouted the
entire procedure and granted loan on the basis of the F-93 submitted
by the A2. Therefore, there was a clear conspiracy between A1, A2
and A3. In Ex.P27 there was a clear instruction regarding the same.
PW17 clearly deposed that the Sree Gokulam Chits and Finance
Company Pvt Ltd., has not given any instruction to A1 for
sanctioning loan against the deposits. He denied the signature in the
various documents namely Ex.P12 to Ex.P17 and Ex.P20 to P24,
Ex.P.28, Ex.P30 and Ex.P.32. On the basis of the said forged
signature the loan was granted. The said evidence of PW17
corroborated with the evidence of the remaining officials PW18 and
PW19 and the evidence of PW17, PW18 and PW19 are cogent and
they clearly deposed about the forgery and fraudulent withdrawal
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of the loan amount given on the basis of the F-93. PW22 clearly
deposed about the grant of loan on the strength of the forged
document. PW8 and PW9 deposed that A2 made the forged rubber
stamp in the name of the Sree Gokulam Chits and Finance Company
Pvt Ltd. PW9 is the Assistant of the said A2 and he was asked by A2
to get the rubber stamp from PW8 in the name of the Sree Gokulam
Chits and Finance Company Pvt Ltd. The prosecution proved the
forgery of the signature through the hand writing expert.
8.1. The Learned senior counsel submitted that no evidence is
available on record that the handwriting of the admitted signature
was taken as per the rules and hence the said opinion is liable to be
rejected. This court finds no merit in the contention. Merely, because
the said procedure was not followed, can not be a ground to acquit
the accused, when PW17, PW18 and PW19 had denied the
signature.
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8.2. The learned senior counsel's further contention that the
appellant had no knowledge about the forgery of the F-93 cannot be
accepted on the ground that it is duty of the appellant to get the
consent in the F-93 after confirming from the original party. It is
specifically referred in the Ex.P17 that the appellant had a duty to
verify the same by contacting the original party ie., from the
competent person from Sree Gokulam Chit funds before acting on
the basis of F-93.
8.3. As regards the learned counsel's submission that the
charges were framed contrary to the provision of the section 216 of
the Cr.P.C, it is well settled principle that the conviction cannot be
set aside merely on the basis of the error in charge unless appellant
establishes miscarriage of justice. In this case, the learned trial judge
framed the charges for the grant of loan of Rs.3,96,00,000/- and
number of forged Forms. If the senior counsel's argument is
accepted, then conviction and sentence of imprisonment would be
more than the sentence of imprisonment imposed in this case. If
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separate trial had been conducted for each transaction, the accused
should have suffered more sentence of imprisonment. Therefore, no
prejudice was caused to the appellant. Apart from that they never
raised this issue before the learned trial judge and hence as per
section 19 of the Prevention of Corruption Act, 1988 and 464 of
Cr.P.C. this court finds no miscarriage of justice due to the clubbing
of all the transactions in the single trial. In the considerable opinion
of this court conducting single trial was more beneficial to the
appellant for the reason that single imprisonment alone had been
given.
8.4. The learned senior counsel submitted that the maximum
punishment has been imposed and hence, he seeks reduction. The
appellant was terminated from the service and is aged about 70
years, he and his wife are suffering from various ailments. The
appellant also complied the condition imposed in Crl.M.P.(MD).No.
1273 of 2019 and deposited a sum of Rs.5,00,000/-. The learned
Special Public Prosecutor appearing for CBI would submit that 3.96
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crores of the Bank amount was defrauded by all the accused. No
amount was recovered. Therefore, lenient view cannot be taken in
this case. It is true that there is wrongful loss of 3.96 crores and no
amount was recovered. But, considering the mitigating
circumstances, that the appellant is aged about 74 years and
suffering from various ailments and he was terminated from service
and he also deposited a sum of Rs.5,00,000/- as a condition imposed
by this Court while granting suspension of sentence, this Court
inclines to reduce the sentence of imprisonment on condition to
deposit a further sum of Rs.20,00,000/- (Twenty Lakhs Only) in
addition to the amount already deposited, namely, Rs.5,00,000/-
(Five Lakhs Only) within a period of one month from the date of
receipt of a copy of this order as compensation payable to the
Branch Manager, Indian Bank, Kadayanallur Branch, Tirunelveli
District on the following terms:
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S. Offences Punishment of the Trial Modified punishment of this
No under Section Court (Imprisonment and Court
fine)
1 120-B r/w 409 Undergo Rigorous Undergo Rigorous
of IPC Imprisonment of 10 years Imprisonment of 1 year and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo Simple
undergo Simple Imprisonment for One year
Imprisonment for One year
2 120-B r/w 420 Undergo Rigorous Undergo Rigorous
of IPC Imprisonment of 7 years and Imprisonment of 1 year and
to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
in default to undergo Simple in default to undergo Simple
Imprisonment for One year Imprisonment for One year
3 120-B r/w 420 Undergo Rigorous Undergo Rigorous
r/w 109 of Imprisonment of 7 years and Imprisonment of 1 year and
IPC to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
in default to undergo Simple in default to undergo Simple
Imprisonment for One year Imprisonment for One year
4 120-B r/w 467 Undergo Rigorous Undergo Rigorous
of IPC Imprisonment of 10 years Imprisonment of 1 year and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo Simple
undergo Simple Imprisonment for One year
Imprisonment for One year
5 120-B r/w 468 Undergo Rigorous Undergo Rigorous
of IPC Imprisonment of 7 years and Imprisonment of 1 year and
to pay a fine of Rs.20,000/- to pay a fine of Rs.20,000/-
in default to undergo Simple in default to undergo Simple
Imprisonment for One year Imprisonment for One year
6 120-B r/w 471 Undergo Rigorous Undergo Rigorous
of IPC Imprisonment of 10 years Imprisonment of 1 year and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo Simple
undergo Simple Imprisonment for One year
Imprisonment for One year
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S. Offences Punishment of the Trial Modified punishment of this
No under Section Court (Imprisonment and Court
fine)
7 120-B IPC r/w Undergo Rigorous Undergo Rigorous
13(2) r/w Imprisonment of 7 years and Imprisonment of 1 year and
13(1) (c) of to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
Prevention of in default to undergo Simple in default to undergo Simple
Corruption Imprisonment for One year Imprisonment for One year
Act, 1988
8 120-B of IPC Undergo Rigorous Undergo Rigorous
r/w 13(2) r/w Imprisonment of 7 years and Imprisonment of 3 years and
13(1) (d) of to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
Prevention of in default to undergo Simple in default to undergo Simple
Corruption Imprisonment for One year Imprisonment for One year
Act, 1988
9 409 of IPC Undergo Rigorous Undergo Rigorous
Imprisonment of 10 years Imprisonment of 3 years and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo Simple
undergo Simple Imprisonment for One year
Imprisonment for One year
10 420 of IPC Undergo Rigorous Undergo Rigorous
Imprisonment of 7 years and Imprisonment of 3 years and
to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
in default to undergo Simple in default to undergo Simple
Imprisonment for One year Imprisonment for One year
11 467 of IPC Undergo Rigorous Undergo Rigorous
Imprisonment of 10 years Imprisonment of 1 year and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo
undergo Simple Simple Imprisonment for
Imprisonment for One year One year
12 468 of IPC Undergo Rigorous Undergo Rigorous
Imprisonment of 7 years and Imprisonment of 3 years and
to pay a fine of Rs.20,000/- to pay a fine of Rs.20,000/-
in default to undergo Simple in default to undergo Simple
Imprisonment for One year Imprisonment for One year
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S. Offences Punishment of the Trial Modified punishment of this
No under Section Court (Imprisonment and Court
fine)
13 471 of IPC Undergo Rigorous Undergo Rigorous
Imprisonment of 10 years Imprisonment of 1 year and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo Simple
undergo Simple Imprisonment for One year
Imprisonment for One year
14 13(2) r/w Undergo Rigorous Undergo Rigorous
13(1)(c) of Imprisonment of 7 years and Imprisonment of 1 year and
Prevention of to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
Corruption in default to undergo Simple in default to undergo Simple
Act, 1988 Imprisonment for One year Imprisonment for One year
15 13(2) r/w Undergo Rigorous Undergo Rigorous
13(1)(d) Imprisonment of 7 years and Imprisonment of 1 year and
Prevention of to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
Corruption in default to undergo Simple in default to undergo Simple
Act, 1988 Imprisonment for One year Imprisonment for One year
Total Fine Rs.3,65,000/- Rs.3,65,000/-
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.
9. Accordingly the Criminal Appeal is party allowed on the
following terms:
9.1.The conviction passed against the appellant in C.C.No.7 of
2010, on the file of the learned II Additional District Judge for CBI
Cases Madurai, dated 05.02.2019, is hereby confirmed.
9.2.The sentence of imprisonment imposed against the
appellant in C.C.No.7 of 2010 on the file of the learned II Additional
District Judge for CBI Cases Madurai, dated 05.02.2019, is hereby
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reduced as stated below on condition to deposit a further sum of Rs.
20,00,000/- (Twenty Lakhs Only) in addition to the amount already
deposited, namely, Rs.5,00,000/-(Five Lakhs Only) within a period
of one month from the date of receipt of a copy of this order as
compensation payable to the Branch Manager, Indian Bank,
Kadayanallur Branch, Tirunelveli District, otherwise, the sentence of
imprisonment imposed by the trial Court shall automatically be
restored.
S. Offences Punishment of the Trial Modified punishment of this
No under Section Court (Imprisonment and Court
fine)
1 120-B r/w 409 Undergo Rigorous Undergo Rigorous
of IPC Imprisonment of 10 years Imprisonment of 1 year and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo Simple
undergo Simple Imprisonment for One year
Imprisonment for One year
2 120-B r/w 420 Undergo Rigorous Undergo Rigorous
of IPC Imprisonment of 7 years and Imprisonment of 1 year and
to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
in default to undergo Simple in default to undergo Simple
Imprisonment for One year Imprisonment for One year
3 120-B r/w 420 Undergo Rigorous Undergo Rigorous
r/w 109 of Imprisonment of 7 years and Imprisonment of 1 year and
IPC to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
in default to undergo Simple in default to undergo Simple
Imprisonment for One year Imprisonment for One year
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S. Offences Punishment of the Trial Modified punishment of this
No under Section Court (Imprisonment and Court
fine)
4 120-B r/w 467 Undergo Rigorous Undergo Rigorous
of IPC Imprisonment of 10 years Imprisonment of 1 year and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo Simple
undergo Simple Imprisonment for One year
Imprisonment for One year
5 120-B r/w 468 Undergo Rigorous Undergo Rigorous
of IPC Imprisonment of 7 years and Imprisonment of 1 year and
to pay a fine of Rs.20,000/- to pay a fine of Rs.20,000/-
in default to undergo Simple in default to undergo Simple
Imprisonment for One year Imprisonment for One year
6 120-B r/w 471 Undergo Rigorous Undergo Rigorous
of IPC Imprisonment of 10 years Imprisonment of 1 year and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo Simple
undergo Simple Imprisonment for One year
Imprisonment for One year
7 120-B IPC r/w Undergo Rigorous Undergo Rigorous
13(2) r/w Imprisonment of 7 years and Imprisonment of 1 year and
13(1) (c) of to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
Prevention of in default to undergo Simple in default to undergo Simple
Corruption Imprisonment for One year Imprisonment for One year
Act, 1988
8 120-B of IPC Undergo Rigorous Undergo Rigorous
r/w 13(2) r/w Imprisonment of 7 years and Imprisonment of 3 years and
13(1) (d) of to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
Prevention of in default to undergo Simple in default to undergo Simple
Corruption Imprisonment for One year Imprisonment for One year
Act, 1988
9 409 of IPC Undergo Rigorous Undergo Rigorous
Imprisonment of 10 years Imprisonment of 3 years and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo Simple
undergo Simple Imprisonment for One year
Imprisonment for One year
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S. Offences Punishment of the Trial Modified punishment of this
No under Section Court (Imprisonment and Court
fine)
10 420 of IPC Undergo Rigorous Undergo Rigorous
Imprisonment of 7 years and Imprisonment of 3 years and
to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
in default to undergo Simple in default to undergo Simple
Imprisonment for One year Imprisonment for One year
11 467 of IPC Undergo Rigorous Undergo Rigorous
Imprisonment of 10 years Imprisonment of 1 year and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo
undergo Simple Simple Imprisonment for
Imprisonment for One year One year
12 468 of IPC Undergo Rigorous Undergo Rigorous
Imprisonment of 7 years and Imprisonment of 3 years and
to pay a fine of Rs.20,000/- to pay a fine of Rs.20,000/-
in default to undergo Simple in default to undergo Simple
Imprisonment for One year Imprisonment for One year
13 471 of IPC Undergo Rigorous Undergo Rigorous
Imprisonment of 10 years Imprisonment of 1 year and
and to pay a fine of Rs. to pay a fine of Rs.25,000/-
25,000/- in default to in default to undergo Simple
undergo Simple Imprisonment for One year
Imprisonment for One year
14 13(2) r/w Undergo Rigorous Undergo Rigorous
13(1)(c) of Imprisonment of 7 years and Imprisonment of 1 year and
Prevention of to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
Corruption in default to undergo Simple in default to undergo Simple
Act, 1988 Imprisonment for One year Imprisonment for One year
15 13(2) r/w Undergo Rigorous Undergo Rigorous
13(1)(d) Imprisonment of 7 years and Imprisonment of 1 year and
Prevention of to pay a fine of Rs.25,000/- to pay a fine of Rs.25,000/-
Corruption in default to undergo Simple in default to undergo Simple
Act, 1988 Imprisonment for One year Imprisonment for One year
Total Fine Rs.3,65,000/- Rs.3,65,000/-
9.3.Direction to pay the fine amount in the trial Court
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judgment is hereby confirmed.
9.4. 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.
9.5. 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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To
1. The II-Additional District Judge,
II Additional District Court for CBI Cases, Madurai.
2. The Inspector of Police,
CBI:EOW:Chennai.
3.The Additional Public Prosecutor,
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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K.K.RAMAKRISHNAN, J.
sbn
Predelivery Judgment made in
04.03.2025
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