Telangana High Court

Nanduri Venkat Ramana vs The State Of Telangana on 16 February, 2022

Bench: Lalitha Kanneganti

        THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                  CRIMINAL PETITION No.678 of 2022

ORDER

This petition is filed under Section 438 of the Code of Criminal

Procedure, 1973, seeking bail to the petitioner/A2 in the event of his arrest

in connection with Cr.No.12 of 2022 on the file of Central Crime Station,

Hyderabad District, registered for the offences punishable under

Sections 409, 420, 465, 467, 468, 471 read with 34 IPC.

2. The case of prosecution is that the Branch Manager, Union Bank,

Karwan Branch, Mehdipatnam, Hyderabad, has lodged a complaint stating

that the Telangana State Warehousing Corporation, Warehousing Sadan,

Behind Gandhi Bhavan, Nampally, Hyderabad, had opened two fixed

deposit accounts on 06.01.2021 and 07.01.2021, for an amount of

Rs.1,99,00,000/-each, in total Rs.3,98,00,000/-, with their Bank, and that

on 06.01.2022, when one of the employees of the said Corporation has

produced the said FDRs for payment on maturity, the Bank officials have

observed that they are fake/forged and not issued by the Bank. On

enquiry, it came to light that the said FDRs were given to them by the then

Branch Manager, namely Shaik Mastanvali Saheb, who was involved in

the case of withdrawal of funds of Telugu Akademi.

3. Mr. W.B.Srinivas, learned counsel, representing Mr. R. Anurag,

learned counsel for the petitioner/A2, submits that A1 is the then Branch

Manager and the entire allegations are against A1 only and initially, the LK, J Crl.P.No.678 of 2022

petitioner was not arrayed as accused and later, basing on the confession

of A1 only, the petitioner is arrayed as A2. He further submits that even as

per the case of the prosecution, A1 has prepared the fake FDRs and given

it to the Warehousing Corporation, who in turn have presented the same

before the Bank. Learned counsel further submits that the confession of

co-accused cannot be a basis to implicate the petitioner. He also relied on

the judgment of the Apex Court in Surinder Kumar Khanna v.

Intelligence Officer, Directorate of Revenue Intelligence1, wherein the

Apex Court held as under;

"11. The law laid down in Kashmira Singh was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar wherein it was observed:

"12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to "lend assurance to other evidence against a co-accused". In Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this:

"...where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30

2018 (8) SCC 271 LK, J Crl.P.No.678 of 2022

may be thrown into the scale as an additional reason for believing that evidence".

In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that "...a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence".

It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval."

13. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the LK, J Crl.P.No.678 of 2022

confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court.

14. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence".

Learned counsel for the petitioner further submits that in the counter filed

by the prosecution, it is stated that the petitioner has involved in similar

offences, where he was granted bail, and in that cases also, without any

basis, he has been implicated. Learned counsel further submits that the

petitioner has nothing to do neither with the Bank nor with the

Warehousing Corporation. He also submits that the petitioner is suffering

from Carona and hence, his case may be considered for grant of pre-

arrest bail.

4. Learned Assistant Public Prosecutor has filed counter and

submits that the petitioner is arrayed as accused in Cr.Nos.153, 154 and

157 of 2021 of WCO Team.XII, CCS, DD, Hyderabad, where he was

granted conditional bail to report before the Investigating Officer between

10.00 am and 5.00 pm for every 15 days, but he has violated the said

condition and he did not appear before the Central Crime Station,

Hyderabad, and hence, the police are taking steps to file an application for

cancellation of bail. Learned Assistant Public Prosecutor submits that by LK, J Crl.P.No.678 of 2022

the time recording confession of A1 is completed, petitioner was released

on bail. He further submits that as per the confession of A1, he has

handed over two original FDRs for a sum of Rs.1,99,00,000/- each,

pertaining to Telangana State Warehousing Corporation, to A2. He also

submits that as the police have to recover two original FDRs, they require

the custody of petitioner and further, as the petitioner was also involved in

similar offences, he is not entitled for pre-arrest bail.

5. In response to the same, learned counsel for the petitioner

submits that this Court, by order dated 11.02.2022 in Crl.P.No.5 of 2022,

has relaxed the condition to appear before the police on 21.02.2022 as it

is submitted that the petitioner was suffering from Carona, and for this

reason, he could not comply with the condition. He further submits

that taking all these factors into consideration, the petitioner's case may be

considered for grant of pre-arrest bail.

6. While considering the application for anticipatory bail, the Court has

to take into consideration the several aspects. The Honourable Supreme

Court in Siddharam Satilingappa Mhetre v. State of Maharastra and

others2, has considered the factors and parameters that have to be taken

into consideration, while dealing with the anticipatory bail, are as under:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

2011) 1 SCC 694 LK, J Crl.P.No.678 of 2022

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arrestinghim or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

7. In the present case, as per the confession of A1, he has handed LK, J Crl.P.No.678 of 2022

over the original FDRs to A2 and fake FDRs to the Warehousing

Corporation. Now, as rightly pointed out by the leaned Assistant Public

Prosecutor that the police have to recover the two original FDRs, the

custody of the petitioner may also be required. The petitioner is also

alleged to have committed similar kind of offences in respect of Telugu

Academy, which is registered as Cr.Nos.153, 154 and 157 of 2021 of

WCO Team.XII Central Crime Station, DD, Hyderabad, and the allegation

against the petitioner is that he has taken commission and assisted other

accused. Further, the judgment relied on by the learned counsel for the

petitioner in Surinder Kumar Khanna's case (supra) may not be relevant

to the case of petitioner and not applicable to the facts of the present case