1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE21T DAY OF APRIL2016BEFORE THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA CRIMINAL APPEAL NO.2191/2006 BETWEEN N R BHAT S/O LATE N GOVIND BHAT AGED ABOUT66YRS R/O NO72835, I MAIN I CROSS, VYALIKAVAL, BANGALORE-560003 ... APPELLANT (By Sri: P.S. RAJAGOPAL SR. COUNSEL FOR SRI: PUTTEGOWDA, ADV.) AND STATE BY CBI/SPE BANGALORE ... RESPONDENT (By Sri: C H JADHAV, SR. COUNSEL FOR SRI: HEGDE DEVARU GANAPATHI, ADV.) CRL.A FILED U/S.374(2) CR.P.C. BY THE ADV. FOR THE APPELLANT AGAINST THE
JUDGMENTDT. 30.9.06 PASSED BY THE XXI ADDL. C.C. & S.J., & SPL. JUDGE FOR CBI CASES, B'LORE, IN SPL.C.C.NO.131/2000 CONVICTING2THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCES P/U/SS. 120-B, 409, 467, 471 AND477 OF IPC AND U/SS.13(1)(c) R/W (2) OF THE PREVENTION OF CORRUPTION ACT, 1988 AND SENTENCING HIM TO UNDERGO R.I. FOR A PERIOD OF5YEARS AND ALSO TO PAY FINE OF RS.25000/- I.D., TO UNDERGO S.I. FOR A PERIOD OF6MONTHS FOR THE OFFENCE P/U/S.409 OF IPC AND FURTHER SENTENCING HIM TO UNDERGO IMPRISONMENT FOR A PERIOD OF1YEAR AND ALSO TO PAY A FINE OF RS.5000/- I.D., TO UNDERGO S.I. FOR3MONTHS FOR THE OFFENCE P/U/S.120-B OF IPC AND FURTHER SENTENCING HIM TO UNDERGO R.I. FOR A PERIOD OF2YEARS AND ALSO TO PAY FINE OF RS.1000/- I.D., TO UNDERGO S.I. FOR A PERIOD OF1MONTH FOR THE OFFENCE P/U/S.13(1)(c) R/W132) OF PREVENTION OF CORRUPTION ACT, 1988 AND FOR THE OFFENCES P/U/SS.467, 471, 477A OF IPC AND HE IS DIRECTED TO UNDERGO R.I. FOR A PERIOD OF1YEAR EACH AND ALSO TO PAY FINE OF RS.1000/- FOR EACH OF THE SAID OFFENCES, I.D., TO UNDERGO S.I. FOR A PERIOD OF1MONTH EACH RESPECTIVELY. THE SENTENCES FOR ALL OFFENCES SHALL RUN CONCURENTLY. THIS APPEAL COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
The 1st accused in a criminal case in Spl. C.C.131/00 which was pending on the file of the Court of Additional City Civil Judge (CCH.4), Bengaluru, has filed this appeal under Section 374(2), Cr.P.C. challenging the judgment of conviction and sentence passed against him on 30.9.2006. 3 2. The respondent-CBI had filed a charge sheet against this appellant and another accused for the offences punishable under Sections 409, 467, 471, 477 read with Section 120B, I.P.C. and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988,(hereinafter referred to as the Act, for brevity). After holding a full-fledged trial, the 2nd accused is acquitted and this appellant is convicted for the offences noted above. He is sentenced to undergo RI for a period of 5 years and to pay a fine of Rs.25,000/- for the offence punishable under Section 409, I.P.C. and to undergo SI for one year and to pay a fine of Rs.5,000/- for the offence punishable under Section 120B, I.P.C. He is further sentenced to undergo SI for 2 years and to pay a fine of Rs.1,000/- for the offence punishable under Section 13(1)(c) of the Act read with Section 13(2) of the Act, and to undergo RI for one year for the offences punishable under Sections 477, 461, 477A, I.P.C. and to pay a fine of Rs.1,000/-. It is this judgment of conviction 4 and sentence that is called in question in this appeal on various grounds as set out in the appeal memo.
3. The brief facts leading to the conviction of this appellant are as follows: a) The appellant herein was working as branch manager during the period from 25.5.1989 to 29.9.1982 in Syndicate Bank, BWSSB Branch, Bengaluru, and the 2nd accused was working as loan officer in the same branch. Mr.D.B.Desai, the then Deputy Superintendent of Police, CBI, had received information about the criminal misappropriation said to have been made by these two employees and a case was registered in R.C.11/93. b) During the course of investigation, it was revealed that accused nos.1 and 2 had conspired amongst themselves to misappropriate the amount belonging to bank customers and in furtherance of such 5 criminal conspiracy, they had availed a loan of Rs.4,00,000/- fraudulently on 20.4.1991 in the name of a customer, Sri Chandrashekar of M/s Deepam Silks International. The loan application was prepared in the name of the said firm and the 1st accused is stated to have forged the signatures of the owner of M/s Deepam Silks, Mr.Chandrashekar and authorized the payment of Rs.4,00,000/- as against the said forged documents. It is alleged that the fixed deposit receipts standing in the name of Chandrashekar were taken as security and was received by accused nos.1 and 2 jointly. c) The further allegation is that the 2nd accused opened a loan account in the books of the bank subsequent to the availment of the loan and falsely certified that the release of the loan to the effect that the firm was a proprietary concern. During the course of inspection at the bank, 1st accused came to know that he would be caught and therefore, he approached Chandrashekar of M/s Deepam Silks International and 6 obtained a letter with ante-date mentioning that the receipt had been given as security for the loan of his friend and that the 1st accused fraudulently caused issuance of a pay order for Rs.5,73,848/- on 22.10.1991 favouring M/s Deepam Silks, even though the loan was still outstanding against the said deposit. Further allegation is that the loan amount ought to have been given set off towards the maturity value of the deposit, and to correct this, the 1st accused overlooked these facts. d) After concluding investigation in R.C.11/93, charge sheet came to be filed and registered as Spl.C.C.131/00 resulting in framing of charges. The trial court had opined that the charge pertaining to this case in respect of the accused fell during the period beyond 12 months of the first charge sheet and hence a direction was given to file a separate charge sheet. Hence a separate charge sheet is filed in regard to the above allegations. 7 e) During the course of investigation, the alleged forged documents were sent to the handwriting expert examination and the statements of material witnesses were recorded. After obtaining the report of the handwriting expert, a comprehensive charge sheet was filed. f) Accused had pleaded not guilty to the charges leveled against him and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all 19 witnesses and got marked 39 exhibits. During the course of cross-examination, one exhibit has been marked on behalf of the accused. g) After hearing arguments, the learned special judge has acquitted the 2nd accused and has convicted this appellant-1st accused by framing the following points for consideration as found in paragraph 11 of the judgment: In furtherance of the charges framed in the case and the arguments advanced on behalf of the 8 accused, the points which arise for determination in this case are; in Spl. by the Court sanction obtained by 1. Whether sanction was to be obtained separately in respect of the separate charge sheet filed in the case, after the direction was given C.C. No.C.C..No.150/95?.
2. Whether the Investigating Officer in this case is bad in law and thereby cognizance taken is improper?.
3. Whether investigation done in this case is bad in law in view of the provisions of Sec.17 of the Prevention of Corruption Act 1988?.
4. Whether the prosecution proves beyond reasonable doubt the accused had criminally conspired to commit the offence of forgery, criminal breach of trust, using forged documents as genuine, falsification of accounts and the offence of criminal misconduct?.
5. Whether the prosecution proves beyond reasonable doubt the accused have committed offence of criminal breach of trust within the meaning of Sec.409, in furtherance of their criminal conspiracy?.
6. Whether the prosecution proves beyond reasonable doubt the accused have committed offence of forgery of valuable security in furtherance of their criminal conspiracy?.
7. Whether the prosecution proves beyond reasonable doubt that the accused have used the documents containing forged signature of customer and other forged documents as that that that 9 that in their criminal that furtherance of genuine, conspiracy?.
8. Whether the prosecution proves beyond reasonable doubt the accused have committed offence of falsification of books of accounts of bank to defraud the Syndicate bank in furtherance of their criminal conspiracy?.
9. Whether the prosecution proves beyond reasonable doubt the accused have committed the offence of criminal misconduct within the meaning the Prevention of Corruption Act?.
10. What Order?.
4. Heard learned senior counsel, Mr.P.S.Rajagopal appearing for the appellant, as also Mr.C.H.Jadhav, learned senior counsel representing the CBI at length.
5. After going through the records and hearing the arguments, the points that arise for consideration is as follows:
1. Whether the trial Court is justified in convicting the accused for the offences punishable under Sections 409, 467, 471, 477- A of IPC and read with Section 120-B of IPC and Section 13(1) (c) read with Section 13(2) of the Prevention of Corruption Act, 1988, on the 10 ground that this accused had obtained ante- date letter from Chandrashekar, so as to cover up the alleged withdrawal amount on the basis of the fixed deposit receipt of Chandrashekar?.
2. Whether any interference is called for by this Court, if so to what extent?.” R E A S O N S6 Point No.1: The case set up by the prosecution is as follows:-
1) That on 2.01.1991 forging the signature of Dr. K.Srinivasan, appellant and his co-accused have availed a loan of Rs.3,75,000/-
2) That to repay the said loan, on 20th April 1991 the accused arranged a loan of Rs.4/- lakhs in the name of Chandrasekhar, a fictitious person, showing the security for the loan as FD3909dated 26.03.1991 of M/s Deepam Silk International for Rs.5,48,500/-
3) signature of one Sri. Chandrasekhar.
4) That from out of the loan of Rs.4/- lakhs availed on 20th April, 2001 loan in the name of Dr.Srinivasan was cleared by paying in to the said account a sum of Rs.3,88,511/- and balance amount was paid to the appellant and balance amount was paid to A-1.
5) That on 23.12.1991 from out of Cheque amount of Rs.1,30,300/- drawn on the SB account The loan was availed by A-1 forging the 11 No.14566 of Krishna Bhat. T an amount of Rs.1,22,000/- was paid into the loan account of Chandrasekhar and balance of Rs.8,300/- was paid to the appellant.
6) That the outstanding balance amount of Rs.3,69,160/- was paid into the loan account of Chandrasekhar on 8.04.1992 from proceeds of 4 cheques (Ex P9 for Rs.1,80,000/- + Ex P10 for Rs.20,000/- + Ex P11 for Rs.1,05,000/-+ ExP12 for Rs.95,000/-) and thus, the loan account was cleared from these four cheques issued on the account of M/s Industricl Marketing Associates of which one Eshwar Bhat is the proprietor.
7) paid to A1.
8) and also on the Fixed Deposit receipt.
9) depositor throughout. That balance amount of Rs.30,840/- was That lien was not marked in the FD register That the Fixed Deposit receipt was with the 7. The case of the prosecution is that the amount was withdrawn on the basis of the fixed deposit receipts of Chandrashekar of M/s.Deepam Silk International in order to pay the loan relating to the fixed deposits of Dr.Srinivasan, a customer of the Bank who had Fixed Deposit receipts. The best person who could have deposed was Dr.Srinivasan himself on the question as to who made the repayment into his loan account on 12 20.04.1991 and what was the source of fund for the repayment, and whether he had availed the loan or not. This could have been testified only by Dr.Srinivasan and he is not examined has witness. In fact, in the connected Crl.A.No.2190/200, this Court has recorded the finding of Dr.Srinivasn had availed loan and had repaid the loan. The copy of the detailed judgment passed in Crl.A.No.2190/2006 is made available for reference by this court and the same is perused.
8. The allegation of the prosecution is that Mr.T.Krishna Bhat had drawn a cheque for Rs.1,30,300/- drawn on S.B. Account bearing No.14566 is Krishna Bhat.T. An amount of Rs.1,20,000/- was paid into the loan account of Chandrashekar and balance of Rs.8,300/- was paid to the appellant. In this regard, the only person who could have testified about the withdrawal about 1,30,300/- from his S.B. Account was Krishna Bhat himself and he has not been examined. Non-examining of material witnesses i.e., Krishna Bhat enables the Court to 13 draw an adverse inference in terms of Section 114(g) of the Evidence Act.
9. Smt.Amrutha Kala is examined as PW-18 to prove the transaction dated 23.12.1991 and she has not supported the case of the prosecution in any manner. In fact she is declared hostile.
10. S.Shivaraman.S examined as PW-13 worked in the Vigilance Department of Syndicate Bank, Bangalore, as Vigilance Officer, and conducted investigation on the basis of which the CBI recorded his statement. Though it is stated that on receipt of credible information, FIR was registered, in fact report submitted by Shivarama was the basis. He has admitted in his evidence that he conducted investigation in the year 1992 and submitted a detailed report to the Head Office of Syndicate Bank. He has further deposed that during the internal investigation, he had seen the internal Inspector conducting the inspection and submitting the report. The report discloses that earliest findings of any 14 irregularities in respect of the loan in question are suppressed.
11. PW-8 and other witnesses have stated that there were circulars and manuals of instructions to be followed for raising of loans on the basis of the fixed deposit receipt and other banking transaction. Such documents are withheld. If they had been produced, the procedure prescribed therein could have been compared with the actual procedure adopted in order to know the purpose of such deviation, if any.
12. PW-13, Shivaraman who conducted preliminary investigation, is stated to have submitted a detailed report to the Head Office of the Syndicate Bank relating to the inquiry conducted by him and the same is not made available. On the other hand, it is forthcoming from the records that the said report was destroyed. Admittedly the report said to have been furnished by Shivaraman was one relating to the criminal case 15 registered against accused nos.1 and 2 and they should not have been destroyed. In the connected judgment passed in Crl.A.No.2190/2006, Ex.D-4 is the guidance about the maintenance and preservation of records 13. In the light of non-submission of the report said to have been prepared by Shivaraman which is the basis for the bank to suspect the role of accused nos.1 and 2, much credence cannot be attached to the evidence of Shivaraman. On the other hand, an adverse inference under Section 114(g) of the Evidence Act will have to be drawn for not producing a very vital report submitted by Shivaraman, to the investigating officer . That report must necessarily have contained all the details relating to the documents verified by him and the statements or information given to him by the staff of the branch.
14. Sri Amar Singh is examined as PW-15. He was a Central Government Hand Writing expert. Mr.D.D.Goel, another Questioned Document Examiner has given 16 reasons and opinion and the same has not been brought on record. This documentary evidence is withheld. Specimen writings, questioned writings, have not been brought on record in the present case. That could have been the evidence on the basis of which the trial Court could have convicted the appellant. In fact, the report is submitted in the connected case and it is not brought on record as evidence in the present case.
15. Sri Amarsingh, handwriting expert has not spoken anything about Ex.P-50 with reference to the handwriting and signatures found thereon. This being the position, the learned Judge could not have considered Ex.P-50 as a proved document to connect with this case i.e., loan of Dr.K.Srinivasan. When the Trial Court has acquitted these accused in regard to the loan availed on the fixed deposits of one customer, Dr.Srinivasan in Crl. Appeal Nos.2190/2006 c/w. 2185/2006 holding that evidence of hand writing expert 17 is not trustworthy, the trial court could not have laid much emphasis on the same in this case.
16. It is useful to refer to the decision rendered by a Division Bench of this Court in the case of - RAVJAPPA v. NILAKANTA RAO AND OTHERS – AIR1962Mys.L.J.53, wherein it is specifically held that dissimilarities noticed are important while evaluating the evidence of a handwriting expert. Paragraph 23 of the judgment is very relevant and it is reproduced below: ‘In examining a disputed document, the true test is not the extent of the similarities observed when compared with genuine documents, as forged documents usually are good imitations of genuine documents, but the nature and extent of the dissimilarities noticed. It is these differences which expose the true character of the document in question.’ The opinion of a handwriting expert stands on alower side in the hierarchy of the expert evidence. It is only a corroborative evidence and hence, the same will have to 18 be assessed in the light of other oral and documentary evidence.
16. Smt.Shashirekha Murthy examined as PW-1, was the clerk in the Syndicate Bank and who wrote the FD ledger in respect of FD No.4268, renewal of the FD on which loan is sanctioned. She is examined to prove that in FD ledger, no lien is marked referring to Ex.P1. FD ledger extract pertains to FD No.4268 which is a renewal of earlier FD3909 In the cross examination she admits the FD4268mentioned in Ex.P1 is a renewal receipt pertaining to the FD No.3909. Later FD No.3909 was confronted to her and got marked as Ex.D1. Later PW-1 admits that Ex.D1 in the column of lien marking has been erased by putting the whitener and the erased portion is marked as Ex.D1(a). She has admitted that she had not received any complaint from anybody stating that amount had not been credited to M/s Deepam Silks International. 19 17. Sri.Chandrashekar was the Managing Partner of Deepam Silks International. Through him FD receipt 3909 is marked as Ex.P3. He admits his signature on the reverse of Ex.P3. He has testified that at no point of time M/s.Deepam Silks International was a proprietary firm. Accused No.1 the appellant herein was the Bank Manager at that time and on his representation, he had made some advances to somebody against his deposit and was facing audit problem. At his request, he gave a pre-dated letter authorizing accused no.1 to advance the loan against his deposit. The said letter dated 15.04.1991 is marked as Ex.P4 through him. PW-2 states that Syndicate Bank Vigilance people had asked him whether he had given the letter Ex.P4, for which he had answered in the affirmative. Subsequently, he gave a letter Ex.P5 dated 15.09.1992. He admits having received the proceeds of the fixed deposit and he states that signature on the loan application Ex.P7 is not his signature. In his cross examination, he has admitted 20 that Ex.P4-letter was subsequent to 15.04.1991, but does not remember as to when exactly he gave that letter. He further admits that he gave Ex.P5 and Ex.P5(b) at the request of the bank people. Ex.P5 is addressed to S.Shivaraman, Deputy Inspector who, in his cross examination, has deposed that he conducted investigation when he was working as Vigilance Officer in Vigilance Department.
18. It is pertinent to note that Ex.P5 is dated 15.09.1992. Even as per the deposition of Shivaraman, he was not working in Vigilance Department at that point of time. He was working from 9.10.1986 to 09.05.1992. Ex.P34 is the copy of the partnership deed dated 9.11.1989 which shows that M.Chandrashekar and M.Vijayashekar, both children of M.K.Muthaiah Pillai along with one minor Master C.Swaroop were the partners of the firm, whereas Ex.P35 dated 01.12.1990 depicts Chandrashekar as Managing Partner. They have not produced the original. They are put to PW-2, a 21 competent witness to speak about them. Instead, these copies are marked for identification through PW-13 subject to proof. Hence, these documents have to be considered as not proved.
19. Sri.S.Sampath Krishna examined as PW-3 was the cashier on 08.04.1992. The case of the prosecution is that loan was availed in the name of Chandrashekar by the accused on the security of fixed deposit in the name of Deepam Silks International on 20.04.1991 and the said loan was repaid to an extent of Rs.3,69,160/- on 08.04.1992 from out of four cheques for amounts of Rs.1,80,000/- + Rs.20,000/- + Rs.1,05,000/-+ Rs.95,000/-. This would amount to Rs.4,00,000/-. The loan to be credited was to an extent of Rs.3,69,160/- only. To prove this aspect, Sampath Krishna is examined. He has not supported the case of the prosecution. In his evidence he has deposed that he was working as a Cashier on 08.04.1992. He received credit slip of Rs.3,69,160/- to the credit of the account of 22 M/s.Deepam Silks International along with 4 cheques and he made endorsement of the credit slip for having received Rs.3,69,160/-. He has explained the calculation he had made on one of those cheques. He has testified that total amount of the cheques was Rs.4,00,000/- and the credit slip was for Rs.3,69,160/- and that he paid the balance to the person who had given the token. Though learned Public Prosecutor has cross examined him with the permission of the Court, nothing is elicited from his mouth to support the case of the prosecution even remotely. If a sum of Rs.3,69,160/- was the actual amount to be repaid as loan, one cheque for Rs.20,000/- was not at all required and the total amount of the three cheques was more than the one required to be repaid.
20. PW-4 – Krishna Rao was working as cashier on 20.04.1991 i.e., the date on which the loan amount in the name of Chandrashekar was granted and released. On the same day, the loan account of Dr.K.Srinivasan was closed. He has deposed that out of Rs.4,00,000/- 23 loan amount, a sum of Rs.3,88,511/- was adjusted to clear the loan account of Dr.K.Srinivasan and the balance amount was paid to the first accused – N.R.Bhat. But a categorical finding is given in the connected appeal bearing Crl.A.No.2191/2006 c/w.2185/2006 and judgment of conviction and sentence is set aside. Hence, this will not be helpful to the prosecution case. In fact PW-4 has admitted in his cross examination to the effect that no authorization letter was given by the borrower to credit into the loan account of Dr.K.Srinivasan. He has volunteered to state that as per the instructions given by the then manager i.e., accused No.1 being an official superior, he obeyed the order. This is only an improvement.
21. Smt.Prema Pai is examined as PW-5. She was the officer writing the Manager’s scroll. The entry regarding Rs.4 lakhs loan is made in Ex.P15. She has admitted in her cross examination that there was no impediment for the Manager or the officer-in-charge to write the same 24 whenever she was not there on her seat and the entry in question had been made when she was not there and there was no mala fide in Ex.P15(a) and (b). She has deposed that entire day’s account was correct and tallied. Hence her evidence is not of much importance to the prosecution in the light of admissions elicited from her mouth.
22. Prosecution has relied upon the evidence of PW-7 Smt.Ann J.Noronha. She is examined to prove the signature of the appellant. It is her deposition that there was no lien marked on Ex.P3 dated 26.03.1991-debit slip in the matter of disbursement of loan on 20.04.1991. Ex.P6 is confronted to her. She has pleaded ignorance as to the maker of Ex.P6 and stated that she cannot say in whose hand writing Ex.P6 is. However, she has deposed that accused passed it for payment and identified his signature – Ex.P6(a). Ex.P7 loan application having been confronted to her, she has stated that the contents of Ex.P7 are in the hand writing of the 25 appellant. But she does not know as to who had signed at Ex.P7(b). She has identified the signature of the appellant on Ex.P7(c) for having sanctioned loan. The sum and substance of evidence of PW-7 is that loan application was in the hand writing of the accused. But signature of the borrower appearing on Ex.P7 was not of the accused. Ex.P6 depicts the loan sanction entry is not in the hand writing of the accused. The only other aspect that she pointed out is that Ex.P3-Fixed Deposit Receipt does not bear any lien mark. In fact she has admitted that the Fixed Deposits matured on 26.06.1991 and the FD Receipts were renewed and the amount was paid to M/s.Deepam Silks International on maturity. Unless FD receipts had been made available to the Bank, no loan could have been granted.
23. Pw-8 – Sri.Manjunath was working as the Assistant Manager from 1989 to 1994. He has deposed in his cross examination that he had no personal knowledge in respect of the transactions covered under the documents 26 which were confronted to him. He has deposed that he had seen those documents when the CBI Police had shown it to him i.e., at the time of recording his statement. There were circulars and manual instructions to be followed for the purpose of loans and other banking transactions. He has further admitted that original fixed deposit receipt would be available with the officer who wrote Ex.P1 – the fixed deposit receipt. That official is not examined in the trial Court.
24. PW-9, Eshwar Bhat was the Managing Director of R.S.Power Control (P) Limited. He is examined by the prosecution to prove the four cheques being drawn for Rs.20,000/-, Rs.1,80,000/-, Rs.1,05,000/-, Rs.95,000/- and also for Rs.1,70,000/-. Prosecution has intended to prove that proceeds of these cheques were used to repay the loan of Chandrashekar and implicate accused No.1. He has not supported the case of the prosecution. In fact he has turned hostile. In spite of being cross examined 27 by the learned Public Prosecutor, he has not supported the case of the prosecution even remotely.
25. PW-12 was also the Assistant Manager. He has deposed in his cross examination that there were some writings in Ex.D1 and thereafter the same was erased by applying whitener. He has further stated that I.O. recorded his statement on 29.03.1994. But he did not speak anything to the I.O. about erasing the same by putting whitener.
26. As already discussed, Shivaraman-PW13 who conducted internal investigation, had submitted vigilance report. It is his case that he had not suggested any penal action on the report submitted by him. He has admitted that when he conducted internal investigation, there were internal inspectors. His evidence establishes about the submission of inspection report and vigilance report and they are the best evidence, but they are withheld. 28 27. PW-17, Asha Baliga has spoken about Shashi Rekha and Shashi Rekha is not examined, though she is cited as a witness in the charge sheet. In respect of the loan transaction relating to Ex.P7, PW-17 has deposed that a sum of Rs.4,00,000/- was granted as loan to Chandrashekar. Though she has deposed that it appears to be that of the 1st accused, she does not seem to have any knowledge of the handwriting of the appellant. She has further admitted that she has no explanation on these matters. Hence her evidence is not of much help to the prosecution.
28. PW-18, Smt.Amruthakala has not supported the case of the prosecution. She is examined to prove payment of Rs.8,300/- to the appellant. Nothing is elicited in her evidence to support the case of the prosecution in any manner.
29. PW-19, *S.K. Vijay Rajiv was the IO. He has deposed that on 4.8.1994 he took the documents from Syndicate *Corrected vide Court order dated 29.04.2016 29 Bank, BWSSB Branch. The same is not supported by seizure memo to prove the seizure. He is stated to have sent the specimen signature of accused nos.1 and 2 to the handwriting expert. Again no memo is produced to that effect, The officer, from whose custody he seized the documents, is not examined. In fact, the evidence of PW- 13 is contrary to the alleged seizure of documents from BWSSB Branch of Syndicate Bank. He had not obtained any permission of the court before they were sent to the handwriting expert.
30. Both the accused i.e. Mr.N.R.Bhat and Venkataraman had been convicted in a criminal case in Spl.C.C.150/95 relating to the loan account of Dr.K.Srinivasan. Separate appeals came to be filed by both of them in Crl.Appeal Nos.2190/06 and 2185/06 before this court and they have been acquitted by order dated 30.4.2015. 30 31. It is submitted by learned senior counsel, Mr.C.H.Jadhav that no appeal is filed against the judgment of acquittal passed in these two appeals. Therefore, virtually the findings in those two appeals will have a great bearing on the present case also. In fact, PW-15, Amarsingh was PW-24 in the connected cases. He has relied on a report containing the reasons given by the expert-Mr.Goel and he is not examined. Mere marking of the said document through PW-15 is not helpful to the prosecution unless the document is vouch- saved by the very author, i.e. D.D.Goel. PW-15 has not spoken anything about the dissimilarities in regard to pen pressure, embellishment, open stroke, etc. Therefore, the decision rendered by the Division Bench of this court in the case of REVJAPPA (supra) would be of great help to the accused.
32. Some more documents were submitted to the IO long after investigation had commenced and statements of material witnesses were recorded. A specific reference is 31 made to the letter addressed by M/s Deepam Silks International. Unless these materials were kept with him, the IO could not have recorded the statements of material witnesses and therefore, serious contradictions have arisen in the evidence of material witnesses. These aspects have not been considered by the trial court while evaluating the evidence.
33. As rightly pointed out by learned senior counsel, Mr.P.S.Rajagopal, the genesis of the prosecution appears to be doubtful. Mere seriousness of allegations would be insufficient, unless they are established not by mere preponderance of probabilities, but by adducing proof beyond reasonable doubt. What is proof beyond all reasonable doubt has been discussed and well considered at length by the Hon’ble apex court in the case of STATE OF U.P. v. KRISHNA GOPAL & ANOTHER (AIR1988SC2154.
34. Taking all these serious inconsistencies emanating from the case of the prosecution and material witnesses 32 not supporting the prosecution case, the trial court is not justified in convicting the accused. On the other hand, the accused are entitled to be acquitted by giving them the benefit of doubt. Accordingly point no.(1) is answered in the negative.
35. Point no.(2): In view of the negative finding on point no.(1), the appeal will have to be allowed in its entirety and the accused will have to be acquitted of all the offences alleged against him. In the result, the following order is passed:
ORDERThe appeal filed under Section 374(2), Cr.P.C. is allowed in its entirety, by setting aside the judgment of conviction and sentence passed in Spl.C.C. No.131/00 by the XXI Additional City Civil and Sessions Judge, and Special Judge for CBI Cases, Bengaluru. Accordingly the accused is acquitted of all the charges leveled against him. Bail bonds executed by the accused and the sureties stand cancelled. 33 36. Before parting, it is necessary to highlight the mandate of Section 309,Cr.P.C. and the procedure adopted by the criminal courts while conducting trials. In this regard, holding ‘Pre-Trial Conference’ assumes great importance. The broad guidelines laid down by the Hon’ble apex court on this pivotal issue are discussed in the following pages.
38. While perusing the trial court records, the court had opportunity to see the order sheet maintained in Spl.C.C.131/00. Charges were framed on 13.6.2001 and summons were issued to witnesses returnable by 27.6.2001. Trial was concluded by the prosecution on 24.9.2004, i.e. 3 years and 3 months after the trial commenced. The case was posted for recording the evidence of the accused under Section 313, Cr.P.C. on 6.10.2004. Innumerable adjournments had been given to record the statements and ultimately the case ended in conviction on 30.9.2006. 34 39. Having noticed the inordinate delay in conducting trial, this court feels that some effective guidelines are required to be issued to all criminal courts in the State in the matter of holding trial on a day-to-day basis in order to achieve the object of Section 309 of Cr.P.C. IMPORTANCE OF PRE-TRIAL CONFERENCE IN HOLDING DAY-TO-DAY TRIAL AS PER SECTION309OF Cr.P.C.
40. Section 309, Cr.P.C. is extracted below:
309. Power to postpone or adjourn proceedings. (1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded; Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376B, section 376C or Section 376D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet. (2) If the Court after taking cognizance of an offence, or commencement of it necessary the commencement of, or adjourn, any inquiry or trial, it may,, from time to time, for reasons to be recorded, postpone or adjourn the same on such trial, postpone finds or advisable to 35 terms as it things fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody; Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time; Provided further that when, witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to shown cause against the sentence proposed to be imposed on him. {Provided also that- no adjournment shall be granted at the request of party, except where the circumstances are beyond the control of that party; the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if ready to examine or cross-examine the witness, the Court may, if think fit, record the statement of the witness and pass such orders as it things fit dispensing with the examination-in-chief or cross-examination of th witness, as the case may be.} Explanation 1. If sufficient evidence has been obtained to raise a suspicion that the accused may 36 have committed an offence, and it appears likely that further evidence may be obtained by a remand, this a reasonable cause for a remand. Explanation 2 terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused. . The On a plain reading of Section 309, Cr.P.C., it is clear that a criminal court is expected to hold trial on day-to-day basis and must dispose of the matter at the earliest. By Criminal Law (Amendment) Act, 2013, both sub-section (1) and the proviso introduced therein make it mandatory to hold trial on day-to-day basis and adjournment should be allowed only when it is absolutely required and that too, for reasons to be recorded. Under the new proviso, trial relating to offences enumerated therein should be completed within two months of filing of charge sheet.
41. A reasonably expeditious trial is the fundamental right of the accused implicit in Article 21 of the Constitution of India, as held in the case of 37 HUSSAINARA KHATOON .v. STATE OF BIHAR (AIR1979SC1360. In P.RAMACHANDRA RAO .v. STATE OF KARNATAKA ([2002]. 4 SCC578, a Constitution Bench of the Hon’ble apex court has held that when bail is refused, the accused should not remain in jail longer than it is absolutely essential. But while deciding the question as to whether there has been denial of speedy trial, the court should take into consideration whether the delay was occasioned on account of tactics adopted by the accused himself or due to overcrowding of courts or because of under-staffing of prosecutors. In the meantime, cross-examination of witnesses should be done on the same day and deferring of the case for that purpose is improper. Even while granting adjournment, the court has to exercise discretion judiciously on well recognized principles.
42. If a witness is present in the court, he/she must be examined on that day itself. The court should know that most of the witnesses would attend court at great cost 38 and inconvenience, that too, after keeping aside their avocation and probably they would suffer loss of income. In many cases, travel allowance and minimum allowance for food is not paid by the court because of want of sufficient funds in the court. If the witnesses who are called through summons or other process and stand at the doorstep from morning and then only to be told that the case was adjourned to another day, it would cause lot of injustice and inconvenience to them. They may not speak loudly about their plight, but simply undergo the agony and at times, curse the concerned. If a rustic lady is expected to attend the sessions court, say 75-100 kms. from her native place, that too, leaving a small child in the custody of someone else, and if she is not examined and is sent back, she would feel highly embarrassed.
43. It takes sufficient time for a witness to come from his/her native place to reach the court concerned and again to go back. It is in this regard courts should ensure the presence of the witnesses on the day 39 appointed to examine them and except for genuine and extremely unavoidable circumstances, they should not be sent back without being examined. What is held in the case of STATE OF U.P. .v. SHAMBHU NATH SINGH ([2010]. 4 SCC667 is that ‘such primitive practice must be reformed by everyone provided the Presiding Officer concerned has a commitment towards duty.’ 44. Witnesses are eyes and ears of the court, as opined by Bentham . They help the courts to find out the truth. Trial in a criminal case is a journey to unravel the truth and without the help of the witnesses, truth cannot be unearthed. Similarly if a witness is examined in chief on one day and asked to come for cross-examination on the next day or some other date, chances of him/her being threatened or lured or won over cannot be ruled out. It is not uncommon that in criminal cases, such tactics are adopted either to threaten or lure the witnesses or to win over them. If it is allowed to happen, it would be a travesty of justice. 40 45. It is in this regard the decision rendered in the case of VINOD KUMAR .v. STATE OF PUNJAB ([2015]. 3 SCC220 is relevant. Duty of court while conducting trial is summarized and necessary directions are issued by the Apex court so that the said directions are scrupulously followed to achieve the object of speedy trial. Decision rendered in the case of GURNAIB SINGH v. STATE OF PUNJAB ([2013]. 7 SCC108 is relied upon in the case of VINOD KUMAR. Paragraph 26 of the decision rendered in GURNAIB SINGH’S case is referred to the paragraph 4 of VINOD KUMAR’S case. The same is as follows:- 4. In the aforesaid context, we may recapitulate a passage from Gurnaib Singh v State of Punjab: (SCC P.121, para
26) “26. … we are compelled to proceed to reiterate the law and express our anguish pertaining to the manner in which the trial was conducted as it depicts a very disturbing scenario. As is demonstrable from the record, in an extremely that trial was conducted haphazard manner. Adjournments were granted on a mere asking. The cross-examination of the witnesses were deferred without recording any special reason and dates were given after a long gap. The piecemeal and 41 mandate of the law and the views expressed by this Court from time to time appears to have been totally kept at bay. The learned trial Judge, as is perceptible, own gravity and sanctity. In this regard, we may refer with profit to the pronouncement in Talab Haji Hussain V Madhukar Purshottam Mondkar where it has been stated that an accused person by his conduct cannot put a fair trial into jeopardy, for it is the primary and paramount duty of the criminal courts to ensure that the risk to fair trail is removed and trials are allowed to proceed smoothly without or obstruction.” interruption any 46. Decision rendered in the case of SWARAN SINGH vs. STATE OF PUNJAB – (2000) 5 SCC668is also relied upon in Vinod Kumar’s case. Paragraph 28 in the said case is referred to in paragraph 5 of Vinod Kumar’s case and the same is as follows:
5. Be it noted, in the said case, the following passage from Swaran Singh v State of Punjab, was reproduced: (Gurnaib Singh case. SCC pp.121-22 para
28) “28. …. ’36…. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous get adjournments for one excuse or the other till a witness is won over or is tired. Not only is abducted, he is maimed, he is done away with, or even bribed. is no is a witness threatened, he There lawyers to 42 protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice,’ 47. In the case of SHAMBHUNATH SINGH (supra), the Hon’ble Apex Court has clearly observed about the plight of witnesses being sent back without being examined. The said decision is referred to and relied upon in Vinod Kumar’s case in paragraph 6 and the same is relevant and hence extracted below:- 6. In this regard, it is also fruitful to refer to the authority in State of U.P. v. Shambhu Nath Singh , wherein this Court deprecating the practice of a Sessions Court adjourning a case in spite of presence of a witnesses willing to be examined fully, opined thus; (Shambhu Nath Sing case. SCC99 671-72, para
9) “ 9. We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meager amount of bhatta (allowance) which a witness may be paid by the court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial courts that witnesses who are called through summons or other processes stand at the 43 doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by the Presiding Officers of the trial courts and it can be reformed by everyone provided the Presiding Officer a commitment towards duty.” concerned has 48. Reiterating the principles highlighted in the above decisions, the Hon’ble Apex Court has directed all the criminal Courts to follow the mandate scrupulously. The directions given by the Hon’ble Apex Court in Vinod Kumar’s case are found in paragraphs 57.4 and 57.5 and they are reproduced below, as such directions are binding on all the Courts under Article 141 of the Constitution.” Paragraphs 57.4 and 57.5 are reproduced below:- It is time. imperative over, the 57.4 In fact, it is not at all appreciable to call a witness for cross-examination after such a long if span of the examination-in-chief cross- examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. for cross-examination. is It 44 57.5 The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, “Awake! Arise!”. There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination relating to trial in a requisite manner and not to defer the cross- examination of a witness at their pleasure or at the it eventually makes the trial an apology for trial and compels to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute. leisure of the defence counsel, for the whole society In the light of these directions given in the case of VINOD KUMAR, any breach of such condition would be nothing but contempt of Court. Hence, all possible steps are to be taken by the criminal Courts to achieve the object of Section 309 of Cr.P.C. In fact in the case of AKIL vs. STATE (NCT DELHI) – 2013(7) SCC125 the Hon’ble apex court has highlighted the commitment that is expected of a judge dealing with criminal trial. Placing 45 reliance on the decision in the case of STATE OF UP .v. SHAMBUNATH SINGH ([2001].4 SCC667. Paragraph 8 of the decision in the said case is referred to and is relevant. The same is extracted below:
41. In a comprehensive decision of this Court in State of U.P. v Shambhu Nath Singh the legal position on this aspect has been dealt with in extensor. Useful reference can be made to paras 10-14 and 18; (SCC pp. 672-74) “10 Section 309 of the Code of Criminal Procedure (for short ‘the Code’) is the only provision which confers power on the trial court for granting adjournments in criminal proceedings. The conditions laid down by the legislature for granting such adjournments have been clearly incorporated in the section. It reads thus:
11. The first sub-section (of Section 309 Cr.P.C.) mandates on the trial courts the proceedings shall be held that expeditiously but ‘ as expeditiously as possible’ have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the next limb of the sub- section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of the witnesses begins. The legislature which diluted the vigour of the mandate contained in the initial limb of the sub-section by using the words ‘as expeditiously as possible’ has chosen to the words * * * 46 that such examination in make the requirement for the next stage (when examination of the witnesses has started) to be quite stern. Once the case reaches that stage the statutory command is ‘shall be continued from day to day until all the witnesses attendance have been examined’. The solitary exception to the said stringent rule is , if the court finds that adjournment ‘beyond the following day to be necessary’ the same can be granted for which a condition is imposed on the court that reasons for the same should be recorded. Even this dilution has been taken away when witnesses are in attendance before the court. In such situation the court is not given any power to adjorn the case except in the extreme contingency for which the second proviso to sub-section (2) has imposed another condition. when witnesses no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing’.
12. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined( except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are ‘special reasons’ , which reasons should find a place in the order for adjournment , that alone can confer jurisdiction on the court to (p)rovided are further in attendance, that 47 adjourn the case without examination of witnesses who are present in court.
13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a ‘special reason’ for bypassing the mandate of Section 309 of the Code.
14. If any court finds that the day-to- day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e, remanding the accused to custody or imposing cost on the party who wants such adjournments be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is present to be examined, the court can cancel his bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused given an undertaking in writing that he would not dispute his is absent and the witness (the cost must 48 * * * identity as the particular accused in the case).
18. It is not justification to glide on any alibi by blaming the infrastructure for skirting the legislative mandates embalmed in Section 309 of the Code. A judicious judicial officer who is committed to his work could manage with the existing infrastructure for complying with such legislative mandates. The precept in the old homily that a lazy workman always blames his tools, is the only answer to those indolent judicial officers who find fault with the defects in the system and he imperfections of the existing infrastructure for their tardiness in coping with such directions.” 49. The second proviso to Section 309, Cr.P.C. aims at putting an end to the practice of granting adjournment at the request of the party. Clause (2) of sub-section (2) of Section 309 further states that ‘ no adjournment shall be granted unless for reasons to be recorded.’ Hence adjournments should not be granted except for strong and reasonable grounds and when it becomes unavoidable for pressing circumstances.
50. Public interest demands that criminal justice should be swift and sure and when the incidents are 49 fresh in the public mind and trial is conducted as early as possible, it will result in impartial trial. Keeping in mind this cardinal principle, Section 309, Cr.P.C. is to be applied in letter and spirit. In order to hold criminal trials effectively, preferably on day to day basis, certain steps will have to be taken in this regard.
51. This court feels that a ‘Pre-trial Conference’ will have to be held consisting of presiding officer, public prosecutors, accused, advocate for the accused, and the concerned responsible police officer like inspector or sub inspector of the concerned police station.
49. It would also be very helpful if a ‘Pre-Trial Conference’ is held wherein the public prosecutor will come with thorough preparation about the list of prosecution witnesses he wishes to examine and the approximate time for examining them with particular reference to the dates. The courts must ensure that the witnesses intended to be examined by the prosecutor 50 would be available on the specified dates they are expected to appear.
52. Let us assume that in a murder case, the only eyewitness is the wife of the deceased, having witnessed the murder. She will be the star witness and if she does not appear on the date fixed for her examination, the court may have to postpone the trial and thereafter to take positive steps to secure her presence, at least on the next hearing date. In order to avoid such embarrassment, before the trial is fixed, availability of such witness on the date fixed for trial will have to be ascertained and made known to the court.
53. Likewise, in a case of rape, the victim of rape is the prime witness. The prosecution as well as the police will have to take all steps to get the witness to court so that she could be examined. If there is any laxity in getting her to the court, there may be chances of interference or obstruction through external forces. If several important omissions have been elicited from the mouth of material 51 witnesses examined on behalf of the prosecution, such omissions will have to be put to the investigating officer by the accused. Hence the presence of the investigating officer on the appointed date is also equally essential and it should be ensured.
54. Let us assume that the IO has retired from service and has gone to USA to see his daughter. Then the chances of getting him in the near future will be very bleak, and thereby trial gets postponed till his return. Therefore, such situations could be overcome by securing the assistance of the persons involved in the investigation who are acquainted with the case.
55. In certain cases, witnesses do not know the local language of the court or English and hence, translators are required to translate their evidence and this consumes a lot of time. This aspect should be kept in mind while fixing the date of trial. If effective translators/interpreters are not available in the court, all 52 necessary steps should be taken well in advance to get such interpreters so that the witnesses who are not conversant with the local language or English are not sent back on that ground.
56. Similarly child witnesses will appear before the court to give their evidence. The Presiding Officer must have thorough knowledge of the relevant provisions of the Indian Oaths Act. Whenever a child or a woman come as witness to the court, they must be treated courteously.
57. It is also seen that Section 294, Cr.P.C. is not used often by the courts. If in a case of murder based on circumstantial evidence, the accused admits that death is due to homicide, nothing comes in the way of the prosecution to request the court to get the post mortem report marked by consent, and thereby dispense with the evidence of the doctor who conducted the post mortem. There will be such similar occasions for getting many documents marked by consent, provided such marking of 53 documents does not prejudice the rights or interest of the accused in any manner. This will assume importance in getting Mint Report, chemical report, serology report, etc. which have greater evidentiary value. Section 294, Cr.P.C. is reproduced below:
294. No formal proof of certain documents: (1) Where any document is filed before any court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence trial or other proceeding under the Code without the proof of the signature of the person to whom it purports to be signed. discretion, require such signature proved.’ Provided that the court may, in its to be in any inquiry, 58. In cases relating to the Prevention of Corruption Act, Acquisition Of Assets Disproportionate To The Known Sources Of Income, hundreds of documents would be produced and innumerable witnesses will have 54 to be cited in the charge sheet as witnesses to speak about those documents. For example, fixed deposit receipts issued by banks, LIC policies, receipts for having paid water charges, electricity charges and such other documents issued by public authorities could be got marked by consent, subject of course, if such marking does not really affect the right of the parties. If this exercise is done with the active assistance and co- operation of the advocates representing the accused and the public prosecutor concerned, the evidence of innumerable witnesses can be dispensed with by marking these documents. Thus the precious time of the court can be saved.
59. At this stage, it would be relevant to state that the concerned prosecutor must give a brief background of the case and the material witnesses whom the prosecution intends to examine. Normally the order that would be passed while fixing trial would be as follows:
55. ‘Trial’ is ordered to be held on 14th to 16th July, 2016. Issue summons to the witness as per the memo filed by the prosecution. When all the witnesses cannot be examined during this period of 3 days, trial will spread over for many days. The trial would get adjourned to several months if another trial is already fixed soon after 16th of July. Therefore, this ‘Pre-Trial Conference’ must be effectively held to thrash out many unexpected situations well in advance. Hence ‘Pre-Trial Conference’ should not be a mere formality, but a useful exercise as a step in aid to hold trial as mandated in Section 309, Cr.P.C. In fact, in paragraph 42 of AKHIL’s case (supra), Hon’ble apex court has even directed the trial courts to deal with such judicial officers who violate the directions, on the administrative side. In order to avoid all such unpleasant things, it is necessary that the presiding officers should visualize all the obstacles which may come in the way holding day to day trial and to get over them before fixing the date of trial. It need not be 56 reiterated that the concerned prosecutor is expected to assist the court effectively to comply with Section 309, Cr.P.C. The guidelines indicates in this judgment are not exhaustive but illustrative only.
60. Let us assume there are 36 to 40 persons who are cited as witnesses in the charge sheet. If such a memo is accepted, the trial would be held in accordance with the order of examination of witnesses as reflected in the memo filed by the prosecution. A specific provision is found in Order XVIII, C.P.C. which mandates examination of the parties first and then their witnesses next. Let us assume that in a criminal case involving the offence of murder, the prosecution may intend to examine the doctor first who conducted the autopsy. No such procedure is found in the Code of Criminal Procedure regarding the order in which the witnesses need to be examined. Therefore, Section 135 of the Evidence Act which is found in Chapter 10 speaks about 57 the order of examination of witnesses and the same is reproduced below: ‘135. Order of production and examination of witnesses:- The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the court.’ 61. On a plain reading of Section 135 of the Evidence Act, it is clear that in the absence of any such law in regard to the order of examination of witnesses, discretion has to be exercised by the court judiciously relating to the order in which the witnesses need to be examined. While passing such order, the court has to keep in mind the nature of the case, prejudice, if any, that may be caused to the case of the accused or the victim, as the case may be. It need not be reiterated that whenever doctors are summoned to give evidence, they 58 must be examined on priority so that they can go back to their respective place and attend to patients.2 62. A Committee had been constituted by this court under the Chairmanship of Late Dr.Justice V.S.Malimath to prepare a suitable Training Module for newly recruited civil judges. The Hon’ble Chairman had been ably assisted by two retired judges of the court who had risen from the cadre of Munsiff/Magistrate. The Committee has submitted a detailed report in regard to the manner in which evidence is to be recorded in civil and criminal cases. Some of the important tips given by the Committee are very much practical and relevant. Hence, they are extracted below: IN-CAMERA PROCEEDINGS:
29. So far as civil cases are concerned, Order XXXII A of C.P.C. provides that every suit or proceedings referred to in Sub Rule (2) of Rule (1) shall be (family disputes) held in-camera if the Court so desires and it is obligatory to do so, if either party so desires. If there are special provisions for holding the trial in camera in respect of a specified category of cases, the Court has to take note of the same. Proceedings can be said to have been held in camera if they 59 are in the Chamber of the Judge or in the Open Court by directing all persons to withdraw excepting the parties and their counsel and the essential Court staff. For example:- Section 22 of the Hindu Marriage Act, 1955, provides that every proceedings under the said Act shall be conducted in camera.
30) So far as criminal cases are concerned, there is a special provision in Sec. 327(2) of the Criminal Procedure Code, that sexual offences punishable u/s. 376, 376-A, 376-B, 376-C, 376- D of the Indian Penal Code, shall be conducted in camera. It is necessary to bear in mind the decision of the Supreme Court in AIR2004SC3566Between Sakshi v/s. Union of India wherein the SC has observed:- “31. The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Section 273, Cr.P.C. merely requires the evidence to be taken in the presence of the accused. The Section, however, does not say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses … …… …… …… ……………………………………………………… …” “32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witness or can put them in a state of shock. In such a situation he or he may not be able to give full details of in miscarriage of justice. Therefore, a screen or some such arrangement can be made incident which may result the 60 where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will , therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of sub-section (2) of Section 327, Cr.P.C. should also apply in inquiry or trial of offences under Sections 354 and 377, IPC.” These observations of the Supreme Court must be scrupulously followed and the Judges must exhibit the requisite sensitivity in dealing with cases relating to sexual offences. SOME USEFUL TIPS IN RECORDING EVIDENCE While recording evidence a Judge will be confronted with several complex situations for which no solution/ guidance will be available from the law books. He cannot postpone the process of recording of evidence to find a solution. Hence the judge has to keep his reflexes geared up to face such situations boldly and effectively. The following are some of the useful tips for the Judge to bear in mind:- 61 in
1) The judge is bound to receive all the evidence tendered unless the object is to impede or obstruct the ends of justice. Failure to hear material witness amounts to denial of fair trial.
2) The Court has discretion to direct the exclusion of witnesses from the court room while the testimony of other witnesses is being given.
3) The Court has inherent power to regulate its business or to make any order for the ends of justice. Therefore, the Court should order that no witness who has to give evidence should be present when the deposition of other witnesses is being recorded.
4) It is a fair course to keep witnesses of both the sides out of Court hall and only the parties remaining present the Court during recording of evidence of witnesses.
5) The cross examiner must not be allowed to bully or take unfair advantage of the witness.
6) The court has power to ask any question to a witness at any time in the interest of justice
7) It must be remembered that witnesses attend the Court to discharge sacred duty of rendering aid to justice. They are, therefore, entitled to be treated with respect and it is for the judge to see that they feel confident and relaxed in the court hall. AIR1981SC page 1036 (Ram Chander v. The State of Haryana) wherein it is observed:- “To be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest”.
8) That the counsel for the parties is mainly interested in conducting the trial to secure 62 and of display success for his client is understandable. But the obligation of the presiding judge is to conduct the proceedings for achieving the dual objectives – search for truth and rendering a just decision expeditiously. However sensitive the subject matter of the trial may be, the court room is no place for play of passions, emotions surcharged enthusiasm.
9) Some times an advocate may put complex questions in order to confuse the witness and to somehow get a favourable answer. If an answer unfavourable to his client comes from the witness, he may resort to bullying the witness to secure a favourable answer. In such a situation the Judge should be firm and record the actual answer given by the witness.
10) In a proceeding seeking maintenance, the opposite party may deny the very relationship of husband and wife. During the course of cross examination of the plaintiff / petitioner, If a question is put suggesting that she is not at all the legally wedded wife, she may feel hurt and become emotional and breakdown. Under such circumstances the court should make efforts to console and persuade her to regain her composure and assist her in answering the questions with confidence.
11) When indecent and scandalous questions or questions intended to insult or annoy are asked to the witness, Court should exercise the power to forbid such questions bearing in mind the limitations prescribed u/s. 151 and 152 of the Evidence Act which reads as follows:- 151. Indecent and scandalous questions - The Court may forbid any question or inquiries which it regards as indecent or scandalous, although such questions or 63 inquiries may have some bearing on the questions before the Court unless they relate to fact in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.
152. Question intended to insult or annoy forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.-.The Court shall
12) When a witness becomes emotional and looses composure, the Judge should do everything reasonably possible to help the witness to regain his composure and only thereafter proceed to record the evidence. Such situations may arise when associated memories surge about death, rape or serious injuries, etc., caused to the near and dear ones.
13) It should be borne in mind that witnesses who come to depose publicly in a court hall are often overawed by its very atmosphere. Quite often, it is seen that some of the Advocates tend to intimidate the witness by going close to the witness or asking questions in a loud or aggressive manner or by angrily expressing that the witness must either say ‘Yes’ or ‘no’ and not to say anything more. In such a situation, it is the duty of the judge to come to the rescue of the witness by issuing such instructions to the Advocate as the Judge deems necessary to give, in order to put the witness at ease.
14) As the presence of APP / PP is very essential throughout recording of evidence of witnesses the Judge should act firmly to ensure the 64 than (other his sustained presence. Frequent lapses should be corrected, if necessary, by reporting to the Director of Prosecutions for taking appropriate corrective action.
15) If the witness is a nursing mother, the Judge must take that factor into consideration and offer the witness the facility to go out to nurse the baby and come back. Similar courtesy should be offered to the accused to nurse the baby.
16) The Judge must feel concerned about unnecessary spending time of medical and official witnesses Investigating Officers) and take steps to record their evidence at the earliest, if necessary out of turn, and relieve them to attend to their public duties. If the case requires to be adjourned it should be done at the earliest and the witness relieved.
17) A witness summoned merely to produce documents should be permitted to do so at the earliest even in the absence of the Advocate concerned and relieved.
18) The Court official should be directed to arrange to issue attendance certificates to official witnesses the moment they are relieved.
19) The Court should ensure prompt payment of Batta to witnesses in criminal cases the moment they are relieved either by adjourning the case or recording their evidence and that adequate funds are in hand for that purpose.
20) The Court should be concerned about the hardship and inconvenience caused to women, old and sick witnesses and try to examine and relieve them at the earliest. 65 DEMEANOUR OF WITNESSES Section 280 of Criminal Procedure Code provides: “When a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination”.
2) When recording the evidence of a witness, the judge should be quite attentive and keenly observe the manner in which the witness is giving evidence so that he is in a position to record his observations if any, about the demeanour of the witness.
3) The demeanour of a witness is his bearing or outward behaviour at the time of giving evidence and quite distinct from the impression made on the judge by his demeanour. The observations regarding demeanour of a witness should be noted down during or at the closure of the examination of the witness. The Judge recording the observations of a demeanour should avoid making any observations about the credibility of the witness, at that stage. It is desirable to record the observations about the demeanour at the earliest stage. The observations regarding demeanour of the witness may be taken into consideration in assessing the evidence of a witness and cannot be regarded as conclusive. As observed by Peter Murphy on Evidence, Second Indian Reprint 2000, at page 532, at para 18.19:- “In considering the credit of a witness and the weight to be given to his evidence, the court may consider not only what is said, but the way in which it is said. This includes the attitude of the witness to the Court, his general demeanour, his 66 in frankness apparent frankness, evasiveness or other reaction to questioning (Particularly, hostile interrogation during cross-examination) and his apparent power or lack of power of recollection”.
4) In the book on ‘Appreciation of Evidence in Criminal Cases’ by Justice U.L. Bhat, he has stated as follows:- “DEMEANOR OF WITNESSES Section 280 of the Criminal Procedure Code empowers courts to record remarks about the witnesses’ demeanour the witness box. Manner of giving evidence is also material, e.g., promptness and in answering question, readiness to speak to all circumstances, hesitancy in giving answers, overzealousness in giving answers which may help one party, sudden improbable failure of recollection when dealing with significant and embarrassing questions on some tell-tale signs. Confusion, embarrassment, contradictory answers are not necessarily proof of dishonesty in a witness; they may be due to timidity, fright in court, natural effect of intimidating atmosphere and crossexamination. Trial Judge should not too readily adopt any impression as to demeanour of witness without testing it against the whole of his evidence.”
5) There is a similar provision regarding recording of demeanour of witnesses in the Civil Procedure Code in Order XVIII Rule 12 which reads as follows:- “The Court may record such remarks as it thinks material the demeanour of any witness while under examination” hesitancy, respecting 67
6) The earlier observations about demeanour in criminal cases apply to demeanour in civil cases also.
63. This court feels that the principal district judge or the unit head will have to write to the High Court to provide sufficient amount to be paid as Travelling Allowance (TA) to the witnesses who attend the court. In turn the Registry to take up the issue with the Government, with the approval of the Hon’ble Chief Jusatice, for providing sufficient financial allocation in this regard. In fact, the amount of TA (batta) to be paid as per the provisions the Karnataka (Payment of Expenses of Complainants and Witnesses Attending Criminal Courts) Rules, 1967, need to be updated keeping in mind the present cost of living, and cost of travelling charges, etc. The criminal court must ensure that the witnesses are paid the prescribed TA and DA as per rules on the same day and the prosecution is expected to assist the court in this regard. If for any reason sufficient amount is not available in the court, the 68 same should be sent to the concerned witness after allotment is made, at the earliest.
64. It is also made clear that if for any reason the presiding officer and/or the prosecutor is proceeding on leave for compelling reasons on the date(s) fixed for trial, the witnesses must be duly intimated well in advance about the postponement. It need not be reiterated that the police officers, especially those who have conducted investigation, must necessarily attend the courts on the date fixed for their examination. The superior officers must take all steps to see that the concerned officer is granted permission to attend court on the appointed date. They should not give room for the court to take action against such officers as per Section 166A, Cr.P.C.
65. Section 166A, Cr.P.C. is reproduced below:
166. . Letter of request to competent authority for investigation in a country or place outside India:- (1) Notwithstanding anything contained in this Code, if, in the course of an investigation into anoffence, an application is made by the investigating officer or any officer superior in 69 rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal court may issue a letter of request to a court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with facts and circumstances of the case and to record his statement made the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession or the authenticated copies thereof or the thing so collected to the court issuing such letter. the in (2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf. (3) Every statement recorded or document or thing received uner sub-section(1) shall be deemed to be the evidence collected during the course of investigation under this Chapter.
66. Mr.Sadashiva Murthy, learned Spl. Public Prosecutor, while assisting the court, submitted that it is better if the investigating officer collects contact details like mobile number or email address of witnesses in their record so that a message can be communicated to them in the event of postponement of a case suddenly, and also intimating the next date of their examination. This would avoid greater inconvenience to the witnesses and 70 they would prepare themselves to come to the court on the next appointed day.
67. The judgment authored by the judge who has recorded the evidence has greater importance since the judge who records the demeanour of the witness can assess the evidence more effectively. Recording of trial on day-to-day basis helps the judge to examine the accused under Section 313, Cr.P.C. by picking up incriminating circumstances emanated in the prosecution case and also to author and pronounce the judgment at the earliest.
68. As already directed by the Hon’ble apex court, the Karnataka Judicial Academy to take all steps to effectively sensitize all the judicial officers holding criminal trials as per the mandate of Section 309, Cr.P.C. A list of important decisions dealing with Section 309, Cr.P.C. be made available to all the judicial officers. 71 69. Whenever principal District Judges’ conference/Review Meeting of the judicial officers working in the unit, the importance of complying with the mandate of Section 309, Cr.P.C., in the light of the decision of the Hon’ble apex court in the case of VINOD KUMAR .v. STATE OF PUNJAB ([2015]. 3 SCC220 be emphasized. If possible, the learned principal district judges to monitor as to whether the learned JMFCs in the unit would hold the trial after an effective ‘Pre-Trial Conference’ of two stakeholders mentioned is effectively convened.
70. Registry is directed to circulate a copy of this judgment to all the judicial officers in the State, Karnataka Judicial Academy and the Director, Department of Prosecutions. Sd/- JUDGE vgh*/VMB