Judgment:
1. Accused No. 1 U.Rajendra Bhatt (since deceased), accused No. 2 G.P.Bhaskar Kumar {since absconding, case separated), accused No. 3 P.Manjunath and accused No. 4 Syed Inayathulla (appellants 1 and 2 herein) were charge sheeted for an offence punishable under Section 120-B r/w. Section 420 of IPC and also for an offence under Section 5(l)(d) r/w 5(2) of the Prevention of Corruption Act, 1947. Accused No.2 was absconding. Therefore, case against him was separated. Accused Nos. 1, 3 and 4 were tried for the a forestated offences. Accused No. 1 was held guilty of an offence under Section 420 r/w Section 120-B and also of an offence under Section 5(l)(d) r/w 5(2) of the Prevention of Corruption Act. Accused Nos.3 and 4 are held guilty of an offence under Section 420 r/w 120-B of IPC. The first accused had filed Criminal Appeal No. 1191/2004 and the instant appeal is filed by accused Nos.3 and 4 during the pendency of Criminal Appeal No.ll91/2004, the first accused died. This Court of order dated 17.9.2010 recorded the abatement of appeal filed by the first accused.
2. In view of the a forestated developments and the grounds urged in the instant appeal filed against judgment of conviction of accused 3 and 4, following points would arise for determination:
1) Whether the prosecution has proved :- that during the period between 1983 and 1984, accused Nos.1 to 4 had entered into criminal conspiracy in furtherance of such criminal conspiracy, accused No.3 and 4 opened current accounts in State Bank of Mysore and also Bank of India at Mysore in the name of M/s.Sudarshan Textiles and M/s.Lakshmi Textiles respectively and they were non existing firms; Accused No.4 opened current account in Mysore Co-operative Bank in the name of M/s.Mayraj Textiles, a non existing firm; at the instance of accused No.2. accused No.3 issued several cheques favouring accused No.2 on the accounts held in the names of M/s.Sudaishan Textiles and M/s.Lakshmi Textiles: the above said cheques were drown on State Bank of Mysore and Bank of India to a sum of Rs. 16,10.000/- favouring M/s.Srinidhi Textiles (by then, accused No2 was the Proprietor); Accused No. 1 who was the Manager of Andhra Bank. Gandhi Nagar Bangalore, knowing fully well that the cheques issued by accused No.3 were fraudulent cheques, issued on the accounts held in the name of some non existing firms namely M/s.Srinidhi Textiles and M/s.Lakshmi Textiles purchased the above said cheques from accused No.2 and permitted him to encash the said cheques with dishonest intention of causing wrongful gain to accused Nos.1 and 2; Accused No.4. who had opened a current account in Mysore Co-operative Bank at Mysore in the name of non existing firm M/s.Mayraj Textiles had issued three cheques for a sum of Rs. 10.10,000/- favouring M/s.Srinidhi Textiles; these cheques were - drawn on Mysore Co-operative Bank; Accused No. 1 knowing fully well that the cheques were bogus cheques and they were concocted documents, purchased the same to enable accused No.2 to encash the cheque amount with dishonest intention of causing wrongful loss to Andhra Bank and wrongful gain to accused Nos.3 and 4 thereby accused Nos.1 and 2 committed an offence under Section 420 r/w. Section 120- B IPC?
2) Whether the learned trial Judge has properly appreciated the evidence on record?
3) Whether the impugned judgment calls for interference?
4) To what order?
3. I have heard Sri Vishnumurthy, learned Counsel for appellants and Sri C.H.Jadhav, learned Counsel for respondent/C.B.I. I have been taken through the evidence and findings recorded by the learned trial Judge.
4. The case of the prosecution and evidence adduced by the prosecution which, by and large in the form of documentary evidence may be stated thus:
Accused No.3 Manjunath was an employee of accused No.2. Accused No.4 was an associate of accused No.2. At the instance of accused No.2, accused No.3 opened a current account in the name of M/s.Sudarshan Textiles (a non existing firm) with State Bank of Mysore at Mysore. Similarly, accused No.3 opened another current account in the name of M/s.Lakshmi Textiles (a non existing firm) with Bank of India at Mysore. Ex.P-110 is the account opening form signed by accused No.3 to open current account in the name of M/s.Sudarshan Textiles with State Bank of Mysore. Mysore Branch. Ex.P-112 is the current account extract of M/s.Lakshmi Textiles with Bank of India, Mysore Branch wherein accused No.3 Manjunath has shown himself as a Proprietor of the said firm in the account opening form. Ex.P-125 is the account opening form submitted by accused No.4 to open current account in the name of M/s.Mayraj Textiles with Mysore Co-operative Bank Limited, Gandhi Nagar Square. Ex.P-126 is the ledger extract of the current account opened in the name of Mayraj Textiles by accused No.4 with Mysore Co-operative Bank. Mysore. Accused No.3 had issued cheque bearing No.571322 dated 23.4.1984 and another cheque bearing No. 571323 dated 25.4 1984 favoring accused No.2. Above cheques were purchased by accused No. 1 and 2 was allowed to withdraw the cash. Accused No.4 had issued cheques as per Exs.P-99. P-101, P-102 favouring M/s.Srinidhi Enterprises of which accused No.2 was the Proprietor.
These cheques were dishonored as there was no funds in the current account held by accused Nos.3 and 4. The bank Managers of State Bank of India. Mysore Branch, State Bank of Mysore, N.R.Mohalla Branch and Mysore Co-operative Bank verified and searched for the addresses furnished by accused Nos.3 and 4 while opening current accounts in the name of M/s.Lakshmi Textiles, M/s.Sudarshan Textiles and M/s.Mayraj Textiles and they found none of these firms namely M/s.Lakshmi Textiles, Sudarshan Textiles and M/s.Mayraj Textiles was in existence in the addresses shown in the account opening forms or in any other place. As the cheques issued by accused Nos.3 and 4 in favour of accused No.2 in the name of aforestated firms were dishonored, the Managers of the aforestated banks were constrained to close the accounts.
At the relevant time, PW-26 S.Ramamurthy was working as the Manager of State Bank of Mysore, N.R.Mohalla Branch. He has identified the current account opening form given by accused No.3 to open current account in the name of M/s.Srinidhi Textiles wherein the address of M/s.Srinidhi Textiles is shown as No. 160, Bellath Grama, Kesare Rajendranagar, Mysore. He has also identified the specimen signatures of accused No.3 as per Exs.P-110(a), 110(b), 111(a), 111(b) and 111(c). Accused No.3 opened current account by depositing an amount of Rs.505/- under remittance challan as per Ex.P-115. PW-26 has deposed that current account was opened on 23.11.1983. PW-26 has deposed that on 5.12.1983 cheque bearing No.571304 for a sum of Rs.50.000/-and 571305 for Rs.50,000/-, cheque bearing No.571306 for Rs. 15,000/- were received in State Sank of Mysore, N.R. Mohalla Branch, Mysore from Andhra Bank, Gandhinagar Branch, Bangalore. As there was no funds in the current account of accused No.3, cheques were returned to Andhra Bank and an amount of Rs.10/- was debited in the account of accused No.3 towards transmission charges.
On 9.12.1983, cheques bearing No.571305 and 571306 for Rs. 1,50,000/- were received in the State Bank of Mysore Branch at Mysore from Andhra Bank, Gandhinagar Branch. On 9.12.1983, accused No.3 had deposited a sum of Rs. 1,95,000/- and two cheques were cleared.
PW-26 has deposed that on 19.12.1983, cheque bearing No.571309 for Rs. 1,50,000/- and cheque bearing No.571310 for Rs.70,000/- were received for clearance in State Bank of Mysore, N.R.Mohaila from Andhra Bank, Gandhinagar Branch. As there was no sufficient funds in the said account, cheques were returned and a sum of Rs.15/- was debited in the current account of accused No.3.
On 21.12.1983, accused No.3 - Manjunath came to the State Bonk of Mysore, N.R.Mohaila Branch and deposited a sum of Rs.2,25,000/-. Therefore, the aforestated cheques were cleared.
On 19.12.1983, cheques bearing No.571309 and 571310, drawn by accused No.3 on the account of M/s.Sudarshan Textiles favouring M/s.Srinidhi Enterprises of which accused No.2 was the Proprietor, were received in the said branch for clearance from Andhra Bank, Gandhinagar branch. to.
On 21.12.1983. accused No.3 presented another cheque for a sum of Rs.2.25,067.50 drawn in the name of M/s.Sudarshan Textiles and requested to issue a demand draft for a sum of Rs.2,25.000/- in favour of M/s.Srinidhi Enterprises. Accordingly, a demand draft for Rs.2.25,000/- was issued.
On 22.12.1983, cheques bearing Nos.571313 and 57312 and 57)311 for Rs 1.00 lakh each drawn in the name of M/s.Sudarshan Textiles favouring M/s.Srinidhai Enterprises were received for clearance in the said branch from Andhra Branch Bank. Gandhinagar Branch, as there was no sufficient funds, the cheques were returned and a sum of Rs. 15/- was debited in the account of accused No.3 towards the cheque returning charges.
On 5.1.1984. accused No.3 presented a self cheque for Rs.4.930/-. On that day. PW-26 informed accused No.3 that either he should make arrangements for honoring cheques or he should close his account. Similarly, accused No.3 had issued cheques as per Ex.P-121 and P-103, without keeping sufficient funds in his account. Accused No.3 continued to issue number of cheques for substantial amounts without having sufficient funds in his account. Even there was no balance amount available in the credit of accused No.3 to appropriate the amount towards the cheque returning charges. PW-28 closed account held by accused No.3 and they visited the address of M/s.Sudarshan Textiles and found that it was a non existing firm. During cross-examination. PW-26 has deposed that the address furnished in the account opening form was correct. On verification. PW-26 came to know that the said unit was closed and shifted to elsewhere. PW- 26 has identified accused No.3 before the Court. From the current account extract of M/s.Sudarshan Textiles of which accused No.3 was the Proprietor, I find that accused No.3 but for issuing the cheques as aforestated had not transacted for any other purpose. It was a short lived account. In fact, the bank was forced to close the account due to repeated dishonor of cheques. Even the balance available in the account was not sufficient to meet the cheque returning charges.
5. At this juncture, it is relevant to state that accused No.3 was an employee of accused No.2. Accused No.3 has not made known to the Court, the circumstances under which he had to issue cheques for substantial amount in favour of his own employer. There is no evidence on record to show that there were business transactions between accused No.3 and accused No.2. Above all, M/s.Sudarshan Textiles of which accused No.3 was shown as the Proprietor was a non existing firm. Thus, it is clear that accused No.3 had opened a current account in the name of M/s.Sudarshan Textiles, a non existing firm to issue cheoues for heavy sums in favour of M/s.Srinidhi Textiles of which, accused No.2 was the Proprietor. Accused No. 1 who was the Bank Manager of Andhra Bank, Gandhi Nagar Branch, knowing fully well that these cheques were bogus cheques had purchased cheques from accused No.2 to enable him to Ancash the cheques.
6. From the evidence of PW-18, M.S.Rarnaswamy (Special Assistant in Bank of India, Mysore Main Branch) and PW-19 R.Vishwanath (Special Assistant in Bank of India, Mysore Main Branch), PW-20 S.C.Ramanna (Cashier in Bank of India, Mysore Main Branch), I find that accused No.3 had opened a current account in the name of M/s.Lakshmi Textiles in Bank of India. Mysore Branch, the modus operandi adopted by accused No.3 was the same which he had adopted to open current account with State of Bank of Mysore in the name of M/s.Sudharshan Textiles. Accused No.3 had deposited a sum of Rs.505/- and submitted the application to open a current account in the name of M/s.Lakshmi Textiles, which was a non existing firm and he had also deposited a sum of Rs. 1.00 lakh in the said account. Thereafter, he had issued cheques as per Exs.P-51, 82. 84, 87. 91 and 89 on different dates aggregating to a sum of Rs.2.50.000/- favouring M/s.Srinidhi Textiles of which accused No.2 was the Proprietor. As already stated, accused No.3 was the employee of accused No.2. They had no business transactions. The said firm M/s.Lakshmi Textiles is proved to be a non existing firm. The bank officials noticing the frequent bouncing of cheques drawn by accused No.3 and also considering the fact that the amount available in the current account of M/s.Lakshmi Textiles was little more than what was required to meet the cheque return charges, after transferring the cheque returning charges and collection charges to the account of the bank, closed his account and paid the remaining amount through a pay order to accused No.3. Ex.P-105 is the ledger extract maintained in the Bank of India, Mysore Branch in relation to current account held by M/s.Lakshmi Textiles of which accused No.3 was the Proprietor. The contents of this ledger extract reveal that the current, account opened by accused No.3 was a short lived account. Entries in ledger extracts would reveal that accused No.3 had issued several cheques for substantial sums favouring M/s.Srinidhi Enterprises of which accused No.2 was the Proprietor. During initial stages, accused No.3 had also deposited certain amounts to see that some of the cheques issued by him were honored to establish himself as a credible customer of the bank however, he was not successful.
7. In proof of the current account opened by accused No.4 in the name of M/s.Mayraj Textiles (a non existing firm) with Mysore Co-operative Bank, Mysore, we have the evidence of PWs.30 and 31 and the documentary evidence as per Exs.P-125-162. Accused No.4 had opened current account with Mysore Cooperative Bank in the name of M/s.Mayraj Textiles that he had furnished the address of M/s.Mayraj Textiles as door No.268. Noor Ali Shah Makan road, behind Chamundcswari Talkies, Mysore. The account opening form submitted by accused No.4 was marked as Ex.P-126. Accused No.4 received a cheque book containing 25 cheque leaves from the said bank and thereafter started issuing cheques for substantial sums favouring M/s.Srinidhi Enterprises owned by accused No.2 without there being sufficient funds in his current account. The cheques were sent to Mysore Co-operative Bank from Andhra Bank, Gandhinagar Branch. However, Mysore Co-operative Bank was not m a position to honor the cheques for want of sufficient funds. Therefore, the bank officials wanted to verify if M/s.Mayraj Textiles was in existence. PW-30 - Adishesha Rao. Attender of the said bank was directed to visit and find out if there was a firm by name M/s.Mayraj Textiles behind Chamundeshwari Talkies at Mysore, which address had been furnished at the time of opening current account. PW-30 went in search of M/s.Mayraj Textiles and found a firm by name M/s.Mayraj Marbels Board which was also under lock and key. On enquiry, he came to know that at no point of time, a firm by name M/s.Mayraj Textiles was existing in that place. Therefore, he promptly reported the matter to the Secretary of the bank. The extract of the current account maintained by Mysore Co-operative Bank in respect of current account held by accused No.4 in the name of M/s.Mayraj Textiles was marked as Ex.P-126. The account extract reflects that the cheques issued by accused No.3 in the name of M/s.Mayraj Textiles favouring M/s.Srinidhi Enterprises could not be honored for want of funds. Therefore, the said bank officials closed the account after debiting the cheque returning charges to the account of the bank.
8. We have the evidence and opinion of the handwriting expert. PW-59 S.L.Mukkhi (Principal Scientific Officer. Central Forensic Science Laboratory. Delhi). PW-5S. on comparison of the signatures found on the account opening terms of accused Nos.3 and 4 and their admitted signatures, has opined that the admitted and disputed signatures are made by one and the same person. Though PW-59 was subjected to cross examination. I find that his opinion is supported by reasons. There are no discrepancies to discard his evidence. At this juncture, it is necessary to state that the opinion evidence given by PW-59 is only a corroborative piece of evidence to the substantive evidence given by the Managers and the officials of the aforestated banks namely State Bank of Mysore, Bank of India and Mysore Co-operative Bank. The evidence adduced by the prosecution, by and large, is documentary evidence and documents were maintained by the aforestated banks in the regular course of business. Thus, I find that accused No.3 and 4, having entered into conspiracy with accused No.1 and 2 had opened current accounts in the names of non existing firms and had issued several cheques for substantial amount favouring M/s.Srinidhi Enterprises owned by accused No.2. Accused No. i, who at the relevant time was the Manager of Andhra Bank, Gandhinagar Branch had purchased these cheques from accused No.2, knowing fully well that cheques were bogus and they were issued on the accounts held in the names of non existing firms to enable accused No.2 to Ancash the cheques with dishonest intention of causing wrongful loss to Andhra Bank, Gandhinagar Branch and wrongful gain to accused No.2.
9. The learned Counsel for accused relying on the judgments reported in 2007(4) Crimes 44 (in the case of Anil Ritolla @ A.K.Ritolia vs. State of Bihar), 2004 Cri.L.J 1774 (in the case of Devender Kumar Singla vs. Baldev Krishna Singla) and 2007(3) Crimes 314 (SC) (in the case of Veer Prakash Sharma v. Anii Kumar Agarwal) would submit that mere dishonor of cheques would not attract an offence under Section 420 IPC; so, by mere dishonor of cheques, it is not possible to hold that accused had the intention of deceiving the bank. The evidence adduced by prosecution does not show that accused Nos.3 and 4 had dishonest intention.
10. In the discussion made supra, I have held that prosecution had adduced satisfactory evidence in proof of conspiracy entered into between accused Nos.1 to 4. On reappreciation of evidence adduced by the prosecution, I have held that accused No.3 and 4 at the instance of accused No.2 had opened current accounts with State Bank of Mysore, State Bank of India and Mysore Co-operative Bank in the names of non existing firms namely M/s.Lakshmi Textiles (by accused No.3), M/s.Sudarshan Textiles (by accused No.3) and M/s.Mayraj Textiles (by accused No.4). The ledger extracts pertaining to the said current accounts would clearly demonstrate that apart from the cheques issued in favour of M/s.Srinidhi Enterprises which could not be honored for want of funds, there were no other transactions. The bank officials on physical verification have found none of the above firms namely, M/s.Lakshmi Textiles, M/s.Sudarshan Textiles and M/s.Mayraj Textiles was in existence either in the address as indicated in the account opening forms or in any other place. The hand writing expert on comprehension of admitted signatures of accused No.3 and accused No.4 and the disputed signatures of accused No.3 and 4 found in the current account opening forms and the cheques issued by accused Nos.3 and 4 has given his opinion supported by reasons. The opinion of hand writing expert would lend substantial corroboration to the evidence given by the officials of the aforestated banks. Therefore, I find that accused No.3 and 4 had dishonest intention at the inception. It is not a situation where the cheques issued in the normal course of business were dishonored for the reasons which were beyond the control of the drawer. It is a situation where drawers of the cheques had opened current accounts in the name of fictitious firms with the intention of obtaining cheque leaves from the bank to issue cheques for substantial sums favouring M/s.Srinidhi Enterprises owned by accused No.2. As per the agreement entered into between accused Nos.1 to 4, accused No. 1. knowing fully well that these cheques were bogus cheques and drawn on the account held in the names of non existing firms had purchased the same from accused No.2 to enable accused No.2 to withdraw the amount. The learned trial Judge on proper appreciation of evidence has held accused Nos.3 and 4 guilty of an offence punishable under Section 420 r/w. Section 120-B of IPC. Therefore, I do not find any reasons to interfere with the impugned judgment of conviction.
11. Regarding sentence:
The learned Counsel for accused would submit that accused Nos.3 and 4 had suffered trauma of trial from the year 1988 to 2004 and 1 hereafter, trauma of conviction during pendency of this appeal. The learned Counsel would further submit that accused Nos.3 and 4 are aged persons and they are suffering from various ailments. The learned Counsel for accused Nos.3 and 4 relying on a judgment of Supreme Court in 2006(2) Crimes 239 would submit that for an offence under Section 409 of IPC. the Supreme Court has imposed fine. In this case also, this Court may take a lenient view in the matter of imposing fine. After going through the judgment of the Supreme Court cited by learned Counsel for accused, I find that accused therein was tried for an offence under Section 409 of IPC on the allegation that he had mis-appropriated a sum of Rs.4,200/- and in fact, the amount was repaid even before the registration of first information. Therefore, having regard to the facts and circumstances of the case, the Supreme Court has imposed fine however, the
Supreme Court has not laid down any binding principle of law on quantum of sentence.
The learned Counsel appearing for C.B.I would submit that accused Nos.3 and 4 had issued cheques running to several lakhs favouring accused No.2, which in fact were honored and accepted by accused No. 1 and all the illegal activities committed by accused Nos. 1 to 4 were pursuant to the conspiracy entered into between accused Nos.1 to 4. Therefore, no leniency is called for in the matter of sentence.
On consideration of the submissions made by learned Counsel for appellants and on overall appreciation of situation, I find that the only extenuating factor in favour of accused is that they had suffered trauma of trial for over a period of 16 years and trauma of conviction during the pendency of appeal for a period of 6 years. Therefore, considering this fact, sentence of imprisonment for a period of three years for an offence under Section 420 of IPC imposed by the trial Court is reduced to two years. However, sentence imposed for an offence under Section 120-B and fine imposed for an offence under Section 420 IPC by the trial Court are confirmed. The appeal jaws accepted in part and sentence of imprisonment imposed by the trail Court on accused no.3 and accused no.4 for an offence under section 420 IPC is reduced from three years to two years. The rest of the impugned judgment is confirmed.
Office is directed 10 sent back the records along with the copy of this judgment.