Judgment:
G. Yethirajulu, J.
1. Criminal Appeal No. 1306 of 1999 was preferred by A-1and Crl. A. No. 1364 of 1999 was preferred by A 2 in C. C. No. 15 of 1996 on the file of the Special Judge for C. B. I. Cases, Visakhapatnam. A-1 was charged for the offences under Sections 120-B, 420, 465, 471, and 477-A, I.P.C. and Section 13(1)(d)(ii) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). A-2 was charged for the offences under Sections 120-B, 420 and 468, I. P. C. Both of them denied the respective charges and claimed for trial.
2. The case of the prosecution is briefly as follows :
A-1 worked as a Branch Manager and A-2 as a temporary Sweeper, in Andhra Bank, Nimmakuru Branch. During the year 1991-92, A-1 and A-2 entered into a criminal conspiracy to cheat Andhra Bank and pursuance thereof, A-1 sanctioned and disbursed eight loans in the names of non-existing persons and misappropriated Rs. 85.000/- by drawing the amounts towards loans in the names of non-existing persons. A-1 falsified the loan documents in the names of different persons, A-1 used the forged documents as genuine and cheated the bank to a tune of Rs. 85.000/-. A-1 abused his official position and obtained fictitious loans himself. Since A-2 conspired with A-1 in the commission of the offence, both of them are punishable for the offences mentioned in the respective charges. Accordingly, after completing the investigation, the police laid the charge-sheet.
3. The prosecution, in order to prove the guilt of the appellants, examined P.Ws. 1 to 22 and marked Exs, P-1 to P-56, No oral evidence was adduced on defence side, but Ex. B-1 was marked.
4. After considering the oral and documentary evidence, the lower Court, found the appellants guilty of the charges. A-1 was convicted for the offence under Section 120-B I. P. C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5.000/-, in default to suffer simple imprisonment for six months. He was also convicted for the offence under Section 420, I. P. C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5.000/-, in default to suffer simple imprisonment for six months. A-1 was also convicted for the offences under Sections 465 and 471 I. P. C. and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for one month. A-1was also convicted for the offence under Section 13(1)(d)(ii) read with 13(2) of the Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5.000/-, in default to suffer simple imprisonment for six months. A-2 was convicted for the offence under Section 120-B I. P. C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2.000/-, in default to suffer simple imprisonment for two months. He was further convicted for the offence under Section 420 I. P. C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2.000/-, in default to suffer simple imprisonment for two months. A-2 was also convicted for the offence under Section 468 I. P. C. and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for one month. The appellants, being aggrieved by the convictions and sentences imposed by the lower Court, through the Judgement dated 13-6-1999, preferred these appeals challenging its validity and legality.
5. Since both the appeals arose out of the same judgment they are clubbed and this common judgment is delivered.
6. The prosecution alleged that A-1 sanctioned loans in the names of non-existing persons by forging the documents and misappropriated Rs. 85.000/- by drawing the amount in the names of non-existing persons. A-2 alleged to have helped A-1 in forging the documents and in drawing the amounts. Therefore, the prosecution contended that the appellants were rightly convicted by the lower Court and there are no grounds to interfere with the judgment of the lower Court. The appellants did not take any specific defence, but generally denied the commission of the offences.
7. In the light of the above contentions, the point for consideration is whether the prosecution proved the guilt of the appellants beyond reasonable doubt and whether the convictions and sentences imposed on each of the appellants are liable to be set aside or modified.
8. In order to test whether the material placed by the prosecution is sufficient to find the appellants guilty of the charges. I wish to refer to the evidence of the prosecution witnesses.
9. PW-1 was the then Vigilance Officer of Andhra Bank, Zonal Office, Vijayawada. During April, 1994, he visited Andhra Bank, Nimmakuru Branch and conducted an enquiry with regard to the disbursement of the crop loans and other loans sanctioned by A-1 in the names of fictitious persons. He stated that in order to sanction the crop loan to a party, the Branch Manager has to obtain loan application, property statement, demand promissory note, hypothecation of crop, signature of co-obligant in the guarantee form, limit cancellation letter etc. and later he has to prepare a debit voucher for payment of cash to the borrower of crop loan. He further stated that each crop loan application will be provided with crop loan number and all the documents obtained for sanctioning a crop loan will be entered into the Crop Loan Register. He further stated that the procedure for sanction of term loan is the same as that of the crop loan. He further stated that the branch Manager after satisfying about the genuineness of the party, his assets and the necessity of the loan and after verification of the assets of the co-obligant, shall sanction the loan. He further deposed that during the enquiry, he noticed A-1 sanctioning loans to some fictitious persons by utilizing Exs. P-2 to P-10, loan application files. He made a detailed enquiry and submitted Ex. P-1 report giving all the details of the loans except loan No. 92/96 and 91/93. He further stated that his enquiry revealed that A-1 sanctioned loans to fictitious persons by obtaining fictitious loan documents with the help of A-2 and misappropriated the amounts covered by loans sanctioned by him. According to him, Ex. P-12, reply given by the Mandal Revenue Officer, Mowa Mandal, regarding the identification of land particulars relating to Exs. P-9 and P-10 loan application files, reveals that the survey numbers mentioned in the loan applications covered by Ex. P-9 and P-10 do not exist in the revenue records. He also received a reply from the M. R. O., Pamarru, and V. A. O., Nimmakuru village stating that such persons are not existing in the revenue records. The reply received by him from other officers also discloses that no persons having the names of the borrowers were residents of the respective villages. The appellants could not elicit any favourable information from this witness regarding his evidence that the loans were sanctioned to non-existing persons and the amounts were withdrawn in their names. In support of the evidence of PW-1, the prosecution relied on the evidence of other witnesses also.
10. PW-2, the Village Administrative Officer of Nimmakuru and Nibhanpudi villages, deposed that he informed the Sub Inspector of Police, C. B. I., with regard to the identity of certain persons. He told the Sub-Inspector of Police that V. Jayalakshmi, A. Rama Rao, Y. V. Raghavayya, Abdul Zameer, Abdul Hafeen and V. A. Ramarao are not the residents of Nibhanpudi village. The voters' list of Gudivada Assembly Constituency also does not contain the names of those persons. He also informed the Sub- Inspector, after verification of the revenue records, that the survey numbers mentioned in the respective loan applications do not pertain to Nibhanpudi village. In the cross-examination, PW-2 stated that he did not give copies of No. 3(Adangal) and 10 (1) to the Sub-Inspector of Police, C. B. I. or to PW-1, and PW-1 and the Investigating Officer did not verify the revenue records. He denied a suggestion that he gave incorrect replies to the Sub-Inspector of Police, C. B. I., regarding the information relating to the persons and the lands furnished by the Village Administrative Officer.
11. PW-3, a resident of Aviripudi village and Sarpanch of the said village, deposed that when the Sub-Inspector of Police, C. B. I. enquired, he informed that M. Rathayya, Yenugu Lasmayya, M. Kanakayya, Dasi Subbayya are not residents of Aviripudi village.
12. Though there was a mention in the loan applications that they are residents of Aviripudi village, PW-5, the then Extra Departmental Delivery Agent of Postal Department at Nimmakuru, deposed that he received six registered postal covers from Andhra Bank, Nimmakuru, addressed to certain persons for delivery. He could not deliver those letters to the persons mentioned in the letters, as no such persons were available in Nimmakuru village. After enquiry in the village about the said persons, he returned the letters to the sender with endorsement that no such persons were available in the village.
13. PW-6, an Extra Departmental Delivery Agent of Postal Department at Palanki-padu Village, deposed that Aviripadu village is within the jurisdiction of Palankipadu Post Office. He received four registered letters from Andhra Bank, Nimmakuru Branch, for delivery to the respective addresses. He could not deliver those letters, as the addresses were not the residents of Aviripudi village. Therefore, he returned the letters to the sender with endorsements on the letters covered by Exs. P-29 to P.32.
14. PW-7, a resident of Nibanpudi village and Sarpanch of the said village, deposed that when the Sub Inspector of Police, C. B. I., enquired whether V. Jayalakshmi, Abdul Zameer, Abdul Hafeez, K. Ramarao and M. V. Raghavaiah are residents of Nibanpudi village, he informed the Sub-Inspector that they are not the residents of Nibanpudi village.
15. PW-8, the then Senior Assistant of M. R. O. Office at Mowa, deposed that he furnished Ex. P-34 voters' list pertaining to Aviripudi village for Nldimulu Assembly Constituency. He further stated that on verification of the voters' list, the names of the above three persons do not find place.
16. PW-9, the then Village Administrative Officer of Aviripudi Group of Villages, deposed that he received Ex. P-11 letter from PW-1 requesting to verify whether Y. Lakshmaiah and M. Rathayya are having lands covered in their village and he gave Ex. P-12 reply stating that the above two persons do not have any lands covered by the survey numbers mentioned in Ex. P-11. He also gave Ex. P-37 reply to the Sub-Inspector of Police mentioning the same facts as mentioned in Ex. P-12.
17. The evidence of PWs. 1, 3, and 5 to 9 is indicating that most of the persons mentioned in the loan applications are not residents of the respective villages mentioned in the loan applications and the survey numbers of the lands mentioned in the loan applications do not belong to the respective villages. Though all the above witnesses were cross-examined on behalf of the appellants, no information contrary to the version of the prosecution could be elicited. Therefore, the evidence of the above witnesses remained intact and it was not shaken during the cross-examination.
18. The prosecution also examined PWs. 13 and 14 to prove that they never availed any crop loan from Andhra Bank, Nimma-kuru Branch, and they did not present loan applications. PW-13, a resident of Nibhan-pudi village, deposed that he never availed crop loan from Andhra Bank. He never affixed any thumb impressions on any loan documents before Andhra Bank, Nimma-kuru Branch. The thumb impressions appearing on the loan file covered by Ex. P-6 do not belong to him. The Sub-Inspector of Police, C. B. I., obtained his signatures and specimen fingerprints on four sheets at Andhra Bank, Nimmakuru Branch, in the presence of the Branch Manager and Ex. P-41 is the papers containing his specimen fingerprints and signatures.
19. PW-14, a resident of Nibhanpudi village, also deposed that he never acted as a guarantor for the crop loan obtained by any person from Andhra Bank, Nimmakuru Branch. The signatures found on Exs. P-6A, P6B and P-6C in Telugu are not his signatures. The evidence of this witness also lends support to the prosecution version that A-1 sanctioned loan in favour of fictitious persons by forging the loan documents.
20. The prosecution also relied on the evidence of several bank officials to prove that A-1 indulged in forging the documents and misappropriating the amount, after drawing it in the names of fictitious persons. PW-4, the then Rural Development Officer, Regional Office, Andhra Bank, Machilipat-nam, deposed that there is the Andhra Bank Advances Manual, which contains the bank guidelines for sanctioning of various types of loans and Ex. P-22 is the certified copy of the said Manual.
21. PW-10 , the then Cashier, Andhra Bank, Nimmakuru Branch, deposed that the papers covered by Exs. P2A to P-2J, relating to the loan of Y. Lakshmaiah bearing loan No. 92/26, contain the matter in the handwriting of A-1, except the signature or the thumb impressions of the applicant in Ex. P-2F, debit voucher pertaining to loan No. 92/26 of Y. Lakshmaiah. A-1 passed the loan for Rs. 10.000/- on 13-7-1992 and in pursuance of the said order, he paid Rs. 10,000/- in token No. 8 and it bears his signature. Token No. 8 and Scroll No. 21 mentioned in Ex. P-2F are in the handwriting of A-1 and Ex. P-2J also contains the initial of A-1 against column passing officer. He further stated that the papers relating to Exs. P-3 to P-10, loan applications, are in the handwriting of A-1 except the signatures of borrower and co-obligant. Ex. P-3F, debit voucher, in favour of M. Rathaiah for Rs. 10,000/- under Token No. 19, was passed by A-1 and it also bears his signature in token of payment of amount. The papers in Ex. P-4A, loan application, also contain the handwriting of A-1 and it also bears his signature in token of payment of Rs. 10.000/-. Similarly, in respect of other loans also, he subscribed his signatures in token of payment of the amounts covered by the loan applications. He further stated that all the loan applications covered by Exs. P-2A to P-6A and P-10A were sanctioned by A-1 and they bear his signatures. He also filled up columns in some of the loan applications as per the information furnished by A-1. He further stated that generally he pays the cash to the person who brings the token and sometimes he used to. send the amount to A-1 whenever he received the tokens from him or through the messenger. He further stated that under Exs. P-6D, P-7D, P-8F and P-9A, he received tokens from A-1 and paid the amount to him. He also stated that A-1 alone used to issue the tokens after making necessary entries in the payment scroll by him. In the cross-examination, the defence counsel tried to elicit the information from this witness that A-1 had no role in the loan transactions, but the witness affirmed about the loan application and the connected forms containing the handwriting of A-1. The evidence of this witness gave the total picture about the presentation of the tokens and the payment of amounts to A-1 in majority to the transactions.
22. PW-11, the Branch Manager, Nimmakuru Branch from December, 1994 to August, 1998, mentioned about the seizure of certain original documents and certified copies of those documents under Ex. P-38, seizure memo. He further stated that the sub Inspector of Police obtained the specimen thumb impressions of one M. Madhava Rao in the presence and in the presence of one Leela Prasad on 25-8-1995 at their branch consisting of four sheets.
23. PW-12, an Officer working in the Regional Office, Ananthapur, since June, 1993, deposed that A-1 worked along with him, and therefore, he can identify the handwriting and signatures of A-1. He further stated that Exs.P-2A, P-2B, P-3A, P-3C, P-5A, P-5B, P-10 A and P-10B are in the handwriting of A-1 and the sanction orders on the loan applications are that of A-1 under his signatures. He further stated that Exs. P-6A and P-7A are also in the handwriting of A-1 and the sanction was not accorded by him. In Ex. P-4A, he noticed that A-1 filled up the columns in the name of the applicant and his father's name and A-1 accorded sanction of loan under his signature. He further stated that the debit vouchers covered by Exs. P-2F, P3F, P-4D, P-5F, P-6B, P-7D, P-8F, P-9A and P- 10F are in the handwriting of A-1 and he also made the payment order in the debit vouchers under his signatures.
24. PW-15, the then Vigilance Officer, Andhra Bank, Zonal Office, Visakhapatnam, deposed that on 13-5-1995, the Sub-Inspector of Police, C. B. I., Visakhaptnam, obtained specimen fingerprints of A-1 in his presence on four sheets at C. B. I. Office, Visakhapatnam covered by Ex. P-42. On 315-1995, the Sub-Inspector obtained specimen initials and signature of A-1 in his presence on six sheets covered by Ex. P-43. On the same day, the sub Inspector obtained specimen writings and signatures of A-1 on Andhra Bank Credit and Debit vouchers in his presence on ten sheets covered by Ex. P. 44. The Sub-Inspector also obtained specimen writings of A-1 on five sheets covered by Ex. P-45 at C. B. I. Office, Visakhapatnam. He also subscribed his signatures on Exs. P-42 to P-45 to evidence that the thumb impressions, signatures and handwriting of A-1 were obtained in his presence.
25. PW-16, the then Official Language Officer, Regional Office, Machilipatnam, deposed that on 27-3-1995, the Sub-Inspector of Police, C. B. I., Visakhapatnam, obtained the specimen signatures of Danda-battula Arjunarao on four sheets covered by Ex.P-46 in his presence at Andhra Bank, Nimmakuru Branch. He also subscribed his signatures in token of his presence.
26. PW-17, the then Deputy General Manager, Andhra Bank, deposed that after perusing the entire record related to the case submitted by the Superintendent of Police, C. B. I., Visakhapatnam, and after applying his mind and after satisfying that there is prima facie material to prosecute the A-1, he accorded sanction under Ex. P-47 order to prosecute A-1.
27. PW-18, the then Sub Manager, Andhra Bank Pamarru Branch, deposed that on 27-2-1995, he was in charge Manager of Andhra Bank, Nimmakuru Branch. On that date, the Sub-Inspector of Police, C. B. I., obtained fingerprints of A-2 on five sheets covered by Ex. P-48 in his presence and another at Nimmakuru Branch. It also contained his signatures and the signatures of another mediator. PW-19 is the Inspector of Police, C. B. I., Visakhapatnam, who registered the crime against the appellants and issued the F. I. R. covered by Ex. P-50.
28. PW-22 is the then Inspector of Police, C. B. I., Visakhapatnam, and Investigating Officer in this case. He deposed that on 2-1-1995, he received C. D. file from another Inspector and on 3-1-1995 he obtained Ex. P-54 permission from the Special Judge for C. B. I. Cases, Visakhapatnam, to investigate into the case. He further deposed that during the course of investigation, he examined several witnesses, recorded their statements and collected all material documents etc. He also collected the specimen writings of A-1, D. Arjuna Rao and A-2 and also the specimen fingerprints of A-1, A-2 and A. Madhava Rao (PW-13) and sent the specimen signatures and the disputed documents to the Fingerprints Expert, Central Forensic Science Laboratory, New Delhi, and G. E. Q. D. for their opinions. After obtaining the opinions, he placed the material before PW-17 for according sanction to prosecute A-1 and after completion of the investigation, he laid the charge sheet.
29. PWs. 20 and 21 are the experts who examined the documents. PW-20, the Senior Scientific Officer, Grade-II in Finger Print Division of Central Forensic Science Labouratory, New Delhi, deposed that he examined the questioned fingerprints by comparing them with the specimen fingerprints and gave his opinion through a report covered by Ex. P-51. He further deposed that after comparing the fingerprints, he came to the conclusion that the questioned thumb impressions are identical with the specimens thumb impressions of A-1 and A-2 and he prepared comparative charts in the form of Annexure to his report, He further opined that Q-154 and Q-158 contained on Ex. P-6A and P-6B are identical with the specimen thumb impressions of A-1. PW-21, the Senior Scientific Officer, C. F. S. L., New Delhi, deposed that he examined the signatures and handwritings on the questioned documents and opined that the questioned handwritings and signatures tallied with the specimen signatures and handwritings of A-1 and A-2.
30. The prosecution, by relying on the above evidence, asserted that the offences alleged against the appellants are clearly made put and the material placed before the Court is sufficient to find the appellants guilty of the charges.
31. The learned senior counsel for the appellants, Sri C. Pandmanabha Reddy, submitted that (1) the sanction order covered by Ex. P-47 accorded by PW-17 is not valid for want of competency of the sanctioning authority to remove A-1 from service, though PW-17 stated that the power was delegated to; him through registered proceedings, he failed to file the copy of those proceedings before the Court. Therefore, the sanction accorded by PW-17 is not valid under law; (2) PW-22 in the capacity of Inspector of Police seized the loan documents covered by Exs. P-2 to P-10 during the course of investigation and as the said officer is not competent under the Act to seize the documents and as he was authorized neither by the Deputy Superintendent of Police nor the Magistrate, the seizure said to be, made by the said officer is not valid under law, as the permission was obtained only from the Special Judge for C. B. I. Cases, Visakhapatnam; (3) the learned senior counsel further contended that the Special Judge, who issued Ex. P-54 order permitting PW-22 to conduct the investigation, has no power under Section 17 of the Act to authorize PW-22 to proceed with the investigation and in the absence of valid sanction order the prosecution cannot be maintained. He further submitted that there is no mention that the Special Judge exercised the powers under a particular Section of the Act. Though PW-10, the Cashier of the Branch, is the main witness, he is in the nature of accomplice. He further submitted that except a mere assertion by PW-10 that he paid the money to A-1, after receiving the tokens, there is no proof of record that A-1received the amount. Therefore, it is not sufficient to rely on his evidence to find the appellant guilty of his charges and there are no documents to show that PW-10 paid the loan amounts to A-1. The signature, handwritings and thumb impressions of A-1 and A-2 were not taken in the presence of the Magistrate or under the panchanama in the presence of mediators. Therefore, such specimen thumb impressions, handwritings or signatures cannot be used for the purpose of comparison with the disputed writings. Therefore, no weight can be given to the opinions of the experts and the appellants cannot be convicted on the basis of such reports. The learned Counsel for the appellants further submitted that A-1 was only a Branch Manager at Nimmakuru Branch and there are other officers in the branch, therefore, the alleged fraud cannot be attributed to A-1 only. He further submitted that as per the evidence of the prosecution witnesses, one loan taken in the name of one Lakshmaiah was repaid and another loan was renewed after making part payment. Therefore, there may be a mistake in identifying the loanees. Hence, the accused are entitled to the benefit of doubt.
32. In the light of the above contentions raised by the learned senior counsel, it has to be verified whether the appellants are entitled for any benefit on account of the above points raised by the learned senior counsel.
33. In the present case, PW-17, the then Deputy General Manager, Andhra Bank, Central Office, Hyderabad, asserted that he was competent to appoint and remove A-1 from service and he issued Ex. P-47 sanction order to prosecute A-1. In the cross-examination, he stated that he furnished the copy of the delegation of powers given by the Chief General Manager authorizing him to accord sanction order to S. P., C. B. I. Visakhapatnam. Though the learned Counsel for the appellants raised that since PW-17 did not produce the copy of the delegation of powers, it is doubtful who is competent to issue sanction order. During the cross-examination of this witness, no suggestion was given that he is not the competent authority to accord sanction. There was no further suggestion that some other officer was the competent authority to accord sanction. In the absence of any specific suggestion pointing out that another officer is competent to accord sanction and in the absence of any suggestion that this witness is not competent to accord sanction and in the light of the assertion made by this witness that he is competent to appoint and remove A-1 from service, I have no hesitation to hold that there is no force in the contention of appellant that there is a doubt about the competency of this witness for according sanction.
34. Ex. P-47 is the permission letter given by the Special Judge for C. B. I. Cases for investigation by the Sub-Inspector of Police, C. B. I., Visakhapatnam. The application to the learned Special Judge was not made by the Sub-Inspector of Police directly. The Superintendent of Police, C. B. I., made an application to the learned Special Judge for C. B. I. cases for according permission to the Sub-Inspector to conduct investigation in this case. The offences covered by Sections 120-B, 420, 465 and 471, I. P. C. are triable by any Magistrate. Therefore, the officer of the rank of a sub-Inspector is competent to investigate the case relating to those offences. But, for the offence under Section 13(1)(d) read with 13(2) of the Act, an officer not below the rank of Deputy Superintendent of Police has to investigate. In this case, admittedly, the Sub-Inspector of Police investigated the case. The Superintendent of Police gave the list of circumstances under which the Sub-Inspector was required to be authorized to proceed with the investigation. The learned Special Judge after taking into consideration the circumstances explained by the Superintendent of Police, accorded the permission.
35. The learned Counsel for the appellants contended that the learned Special Judge is not a competent authority under Section 17 of the Act and as per the wording of Section 17, the Magistrate is the competent authority to accord permission, therefore, it shall be held that the permission accorded by the learned Special Judge is not valid and the accused are entitled for the benefit of the said illegal order.
36. The learned Public Prosecutor submitted that for the purpose of the Act, the Special Judge shall be treated as the Magistrate for all purposes under the Criminal Procedure Code and as the provisions of Criminal Procedure Code are applicable to the offences under the Act, the Special Judge shall be treated as the Magistrate for the purpose of according permission. It is an undisputed fact that though in Section 17 of the Act it was mentioned that the permission has to be accorded by the Magistrate, a Judicial Magistrate or any other Magistrate has no role in the cases covered by the Act. The copy of the F. I. R. and all other documents collected during the course of the investigation are being sent only to the Special Judge and the charge sheet is also being filed before the Special Judge. Therefore, the Special Judge is the appropriate authority either to monitor the investigation or issue any permissions during the course of investigation depending upon the exigencies and circumstances that are brought to his notice. Under Section 17 of the Act, the learned Special Judge is also a Magistrate and this view has been expressed by the Full Bench of Patna Court in the following decision :
In In the Matter of : Shri Ravi Nandan Sahay, Sessions Judge, Patna 1993 Cri LJ 2436, a Full Bench of the Patna High Court considered the scope of Sections 4 and 5 of the Act and held as follows :
Majority view (Dharampal Singh, J. contra)--
Section 4 of the P. C. Act of 1988 provides that notwithstanding any thing contained in the Cr. P. C. or in any other law for the time being in force, the offences specified in Sub-section (1) of Sections 3 shall be tried by Special Judge only. Section 5 of the P. C. Act of 1988 empowers the Special Judge to take cognizance of the offence without the accused being committed to him for trial and while holding trial, he has to follow the procedure prescribed by the Cr. P. C. for trial of warrant cases by Magistrate. So, the expressions 'the Magistrate empowered to take cognizance of the offence' and 'the Magistrate having power to try such case' appearing in various sections of Chapter XII of the Cr. P. C. would only mean the Special Judge appointed under the P. C. Act of 1988. It is, therefore, not possible to hold that the Special Judge does not come in picture during the course of police investigation and prior to taking cognizance of the offence under the said Act. The Special Judge, on the contrary is entitled to exercise all the powers conferred on a Magistrate under Chapter XII of the Cr. P. C. as he has got exclusive jurisdiction to take cognizance and try the offences under the P. C. Act of 1988.
In State of M. P. v. Mubarak All : 1959CriLJ920 , the Supreme Court while dealing with Section 5-A of the Prevention of Corruption Act (1947), held as follows :
In a case where an officer, other than the designated officer, seeks to make an investigation he should get the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it, disclose the reasons for giving the permission. For one reason or other, if the said salutary practice is not adopted in a particular case, it is the duty of the prosecution to establish, if that fact is denied, that the Magistrate in fact has taken into consideration the relevant circumstances before granting the permission to a subordinate police officer to investigate the case. Thus where it appears that the Magistrate in granting the permission under Section 5A did not realise the significance of his order giving permission, but only mechanically issued the order on the basis of the application which did not disclose any reason, presumably because he thought that what was required was only a formal compliance with the provisions of the section, the provisions of Section 5A are not complied with.
In Sailendranath v. State of Bihar AIR 1968 SC 1292 : 1968 Cri LJ 1484, the Supreme Court held as follows :
The object of the legislature in enacting Section 5-A was to see that the investigation of offences punishable under Sections. 161, 165 or 165A I. P. C. as well as those under Section 5 of the Prevention of Corruption Act should be done ordinarily by officers of the rank of Deputy Superintendent or above. No doubt Section. 5-A also provides for an alternative procedure. An officer below the rank of Deputy Superintendent cash investigate those offences if he obtains the previous permission of a First Class Magistrate. The legislature proceeded on the basis that except for good reasons the Magistrate would not accord permission for officers below the rank of a Deputy Superintendent to investigate those offences. But exigencies of administrative convenience may require that some of those cases have to be investigated by officers below the rank of Deputy Superintendents. For that reason it was provided that in such circumstances the permission of a Magistrate of the First Class should be obtained. This Court has laid down in : 1959CriLJ920 (supra) that the statutory safeguards under Section 5-A must strictly be complied with for they are conceived in public interest and were provided as a guarantee against frivolous and vexatious proceedings. A Magistrate cannot surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission.
The Supreme Court further held that:
It is well established that where cognizance of a case has, in fact, been taken by the Court on a police report following investigation conducted in breach of provisions of Section 5A of the Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. The underlying reason for the above dictum is that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court to try the accused.
In Muni Lal v. Delhi Administration : 1971CriLJ1153 , the Supreme Court, while dealing with Section 5 of the Prevention of Corruption Act (1947), held that:
Irregularity in investigation does not vitiate trial unless there is miscarriage of justice. 'In H.N. Rishbud v. State of Delhi : 1955CriLJ526 , the Supreme Court held that:
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Criminal P. C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Criminal P. C. is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizanc, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Criminal P. C. is attracted.
(Para 9)
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of Justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled. AIR 1944 PC 73 and AIR 1950 PC 26, Ref. To.
(Para 9)
Hence, where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invlaidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.
(Para 9)
When a breach of the mandatory provisions of Section 5A, Prevention of Corruption Act is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5A of the Act.
(Para 10)
In State of Uttar Pradesh v. Bhagwant Kishore : 1964CriLJ140 , the Supreme Court, while considering Section 5-A of Prevention of Corruption Act, 1947, held as follows :
Section 5A of the Prevention of Corruption Act, 1947, is enacted for preventing harassment to a Government servant and with this object in view investigation, except with the previous permission of a Magistrate, is not permitted to be made by an officer below the rank of a Deputy Superintendent of Police. The said statutory safeguards must be strictly complied with, for they were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecution.
The Supreme Court, while considering as to what amounts to an investigation made by Sub-Inspector of Police before obtaining permission under Section 5-A of the Prevention of Corruption Act, 1947, observed as follows :
If any inquiry is made by Sub-Inspector of Police before obtaining permission under Section 5A of Prevention of Corruption Act, 1947, such enquiry was curable and such irregularity if any held did not prejudice the accused.
A practice, if it exists, is to be condemned when such practice enables a police officer below the rank of Deputy Superintendent of Police to make an investigation free from the statutory safeguards (such as Section 5A of the Prevention of Corruption Act, 1947) designed to prevent the abuse of police powers, to secure the necessary information and thereafter to take the requisite permission of the Magistrate and then to shape his investigation to achieve the desired result or to implement his scheme. However, the question in such a case is not whether in investigation of an offence the police have disregarded the provisions of the Act, but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial. It is, therefore, necessary for the accused to throw a reasonable doubt that the prosecution evidence is such that it must have been manipulated or shaped by reason of the irregularity in the matter of investigation, that he was prevented by reason of such irregularity from putting forward his defence or adducing evidence in support thereof. But where the prosecution evidence has been held to be true and where the accused had full say in the matter, the conviction cannot obviously be set aside on the ground of some irregularity or illegality in the matter of investigation : there must be a sufficient nexus, either established or probabilized, between the conviction and the irregularity in the investigation.
(Paras 13, 15)
In the case covered by the above decision, the Railway Sectional Officer, Special Police Establishment, sent a report to the Superintendent of Police, Special Police Establishment, stating that he had received information through a source that the accused was in the habit of misappropriating Government money, giving 7 instances of the acts of misappropriation committed by him and informing him that if a proper investigation was made many more cases of misappropriation would come to light. On the receipt of the said report, the said Superintendent of Police directed a Sub Inspector of Police of the said Establishment to make an inquiry. On the basis of the information the Sub-Inspector checked the railway record, found that the information was correct and submitted a report accordingly. After that he applied under Section 5A of the Prevention of Corruption Act, 1947, to the Additional District Magistrate (Judicial) for permission to investigate the case. The said Magistrate permitted him to investigate. Thereafter the Sub-Inspector made further investigation, seized documents, took statements from witnesses and finally submitted a charge sheet against the accused.
1. that as on receipt of a detailed information of the offences alleged to have been committed by the accused with necessary particulars, the Sub-Inspector of Police proceeded to the spot of the offence, ascertained the relevant facts by going through the railway records and submitted a report of the said acts, the said acts constituted an investigation within the meaning of the definition of 'investigation' under Section 4(1) of the Code of Criminal Procedure.
2. that having regard to the fact that not only the trial was fair and the evidence convicting, but even the earlier defect was rectified by having practically a de novo investigation in strict compliance with the provision of the Code of Criminal Procedure it could not be held that the accused had been prejudiced by the illegality committed by the police in the first stage of the investigation.
(Para 13)
In the light of the above decisions, I have no hesitation to hold that the Special Judge is the Magistrate for the purpose of according permission. Therefore, Ex. P-47 permission letter issued by the Special Judge is valid under law : A-1 is not entitled for any benefit on this ground.
37. The non-mentioning of the provision, under which the learned Special Judge exercised the powers to accord permission, will not invalidate the proceedings according permission to PW 22.
38. PW-10 worked as a Cashier. He was receiving some of the tokens and making payments. He specifically stated that some of the tokens were sent by A-1. Therefore, he sent the amount by those tokens to A-1. Though there was no mention in the record that the amount was paid to A-1, he cannot afford to say no, when the officer in charge of the Branch, who is having overall control, instructed PW-10 to receive the tokens sent by him and to pay the amount to him. There was no enmity between PW-10 and A-1. There was no necessity for him to speak falsehood against A-1. The evidence of other witnesses also corroborated the evidence of PW-10 regarding the preparation of the withdrawal forms etc. by A-1 in his handwriting. Since PW-10 deposed about a particular fact and as he was not a beneficiary of the fraud, he cannot be branded as an accomplice. Therefore, the learned Special Judge was right in accepting the evidence of this witness regarding payment of the amounts covered by some tokens.
39. Regarding the contentions that the thumb impressions, handwritings and signatures of A-1 were not taken in the presence of a Magistrate, the legal position is clear that they need not necessarily be taken in the presence of a Magistrate. The Investigating Officer is competent to obtain them during the course of investigation but, as a matter of caution, they were required to be taken in the presence of others. PWs. 15, 16 and 18 are witnesses in whose presence the thumb impressions, the specimen signatures and the handwritings were taken and they were not denied by A-1 disowning the authorship. The only grievance of A-1 is that the thumb impressions, specimen signatures and handwritings were not taken before a Magistrate or under a Panchanama. The papers containing the specimen writings, thumb impressions and signatures were duly attested by the above witnesses in token of their presence at the time of obtaining them. Though there was no separate panchanama in proof of obtaining them during the course of investigation, in the light of the following judgment of the Supreme Court, the contention need not be accepted, unless prejudice is shown by A-1.
40. In Mohd. Aman v. State of Rajasthan 1997 SCC (Cri) 777 : 1997 Cri LJ 3567, the Supreme Court, while dealing with Section 4 and 5 of the Identification of Prisoners Act, 1920, held that though police Is competent under Section 4 of the Identification of Prisoners Act to take fingerprints of accused, in order to dispel any suspicion as to the bona fides or to eliminate the possibility of fabrication of evidence which was eminently desirable that they would be taken before or under the order of a Magistrate.
In the case covered by the above decision, the prosecution relied upon the fingerprints found on a glass tumbler and the footprints of the accused in the house of the deceased. Though the investigating agency claimed to have seized several articles, four of which contained fingerprints, the glass tumbler containing the fingerprints was seized and the footprints were noticed. The glass tumbler was not produced during the trial. The link between the identity of articles seized and the articles examined by the fingerprints bureau missed and the sample of footprints were not taken before the Magistrate. In those circumstances, the Court held that the evidence relating to fingerprints and footprints of the appellant cannot be safely relied upon.
41. In the present case, the fingerprints were taken in the presence of the mediators and their signatures were also found on the specimen writings, fingerprints and signatures. The appellants were not in jail by the date of taking of the fingerprints. Section 5 of the Identification of Prisoners Act, 1920, is a provision of caution and not a mandatory provision. Therefore, the above judgment is not applicable to the facts of the case on hand.
In Shankaria v. State of Rajasthan AIR 1978 SC 1248 : 1978 Cri LJ 1251, the Supreme Court held that in the State of Rajasthan, the police were competent under Section 4 of the Identification of Prisoners Act, to take the specimen fingerprints of the accused, and as the fingerprints were taken before the Superintendent of Police, it was not necessary for them to obtain an order from the Magistrate for obtaining such specimen fingerprints since Section 4 of the Act is applicable to the State of Rajasthan.
In State of Bombay v. Kathi Kalu : 1961CriLJ856 , a eleven Judges Bench, of the Supreme Court held that:
Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression 'to be a witness'.
The Supreme Court further observed that:--
To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making or oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.
The Supreme Court, while answering a question whether the accused giving specimen handwriting or impressions of his fingers or palm or foot amounts to furnishing evidence, observed as follows :--
It appears to us that he is : For these are relevant facts, within the meaning of Section 9 and Section 11 of the Evidence Act. Just as an accused person is furnishing evidence and by doing so, is being a witness, when he makes a statement that he did something, or saw something, so also he is giving evidence and so is being a 'witness', when he produces a letter the contents of which are relevant under Section 10, or is producing the plan of a house where a burglary has been committed, or is giving his specimen handwriting or impressions of his finger, palm or foot. It has to be noticed however that Article 20(3) does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question that arises therefore is : Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or Impressions of his fingers, palm or foot? The answer to this must in our opinion be in the negative.
The Supreme Court further observed that :--
When an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness himself.
In Khandu Sonu v. State of Maharashtra, : 1972CriLJ593 , the Supreme Court, while dealing with Section 5A of the Prevention of Corruption Act (1947), observed as follows :
Where, the trial of the case has proceeded to termination, the invalidity of the preceding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused.
42. The learned Counsel for the A-1 submitted that since prejudice is inherent, there is no need for separate proof of prejudice. Hence, they must be held invalid. But, after considering the circumstances placed by the prosecution and in the light of the foregoing discussion, I am not inclined to accept the said plea.
43. As per the evidence of PW-10, Nimmakuru Branch is a Rural Branch with limited establishment. It has one Manager, one Cashier-cum-clerk and a Messenger. There will not be access to the Messenger to make the entries in the records and he is not supposed to write anything in the records. It is not the case of A-1 whether the Messenger was also allowed to write anything in the records. If the Messenger is excluded, there remains A-1 and PW-10. The opinions of the Forensic Experts lent support to the prosecution that the loan applications and other connected papers contained the handwriting of A-1. It is not the case of A-1 whether PW-1 has any role in preparing those records. Therefore, there is no scope for anybody else to indulge in playing fraud. I, therefore, do not find any force in the above contention. Even if it is accepted for a moment that one loan was discharged and the other loan was renewed, the criminal liability of A-1 do not extinguish in view of the material placed by the prosecution in respect of other transactions.
44. The learned Special Judge after negativing many contentions raised on behalf of the appellants, found the appellants guilty of the charges. The learned Special Judge also observed that even if the opinions of the Forensic Science experts is eschewed out of evidence, still there is sufficient legal evidence through PWs-10 and 12 to establish the quilt of A-1. Regarding the complicity of A-2, the learned Special Judge observed that the evidence of PWs-20 and 21 and their opinions contained in Exs. P-51 and P-53 undoubtedly go to show that A-1 and A-2 colluded together and pressed into service the loan documents together in the names of non-existing persons by forging thumb impressions and signatures of loanees and co-obligants. He further observed that though there is no direct evidence with regard to the conspiracy between A-1 and A-2 to commit the present offence, it would be too much to expect direct evidence of conspiracy in a case of this nature. The evidence and circumstances proved by the prosecution necessarily lead to the conclusion that A-1 and A-2 obtained loan amount from the bank in pursuance of their criminal conspiracy by forging loan documents. Therefore, A-2 is also liable for the offences covered by the charges framed against him.
45. After scrutiny of the entire evidence, it is noticed by this Court that none of the prosecution witnesses stated as to what was the role of A-2 in the commission of offence except the opinions of the Forensic experts that some of the documents contained the thumb impressions and signatures of A-2. There is no material placed by the prosecution under what circumstances, he subscribed his thumb impressions and signatures on the disputed documents. A-2 was a temporary Sweeper. He was not doing any clerical job. There is no material placed by the prosecution about his educational qualifications and his capability in understanding the fraud that was played by A-1. Nowhere the prosecution alleged that A-2 had any benefit of this fraud. The prosecution also did not place any evidence as to what was the routine work of A-2, what were his working hours and what type of work he was undertaking. Though there was no evidence on record, the totality of the circumstances placed by the prosecution indicates to my mind that A-1, who had an evil intention to defraud the bank, might have obtained the signatures and thumb impressions of A-2 on some pretext or other. There was every possibility of A-2 obliging A-1 on account of his temporary assignment as a Sweeper and the likely consequences of refusing the request of A-1. Except that some of the documents contain the thumb impressions and handwritings of A-2, there is no other material to establish that there was conspiracy between A-1and A-2. I am, therefore, inclined to give the benefit of doubt to A-2.
46. In the light of the foregoing discussion, I do not find any grounds to interfere with the judgment of the lower Court finding A-1 guilty of the charges and his convictions for the offences indicated above. But, I am inclined to set aside the judgment of the lower Court in respect of A-2.
47. In the result, Crl.A. No. 1306 of 1999 filed by A-1 is dismissed confirming the judgment of the lower Court in all respects. Crl. A. No. 1364 of 1999 is allowed and the convictions and sentences imposed against A-2 for the offences under Sections 120-B, 420 and 468 I. P. C. are set aside. The bail bonds of A-2 shall stand cancelled.