IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 19.09.2017
Pronounced on : 04.10.2017
Coram
The Hon'ble Dr.Justice G.Jayachandran Crl.A.Nos.820 to 822 of 2004
M.Ramasamy .. Appellant in all cases /versus/ State by:
Inspector of Police, SPE/CBI/ACB, Chennai. .. Respondent in all cases Common Prayer: Criminal Appeals C.A.Nos.820,821 and 822 of 2004 are filed under Section 374 of the Code of Criminal Procedure praying to set aside the judgment dated 06.05.2004 made in C.C.Nos.66, 67 and 68 of 2001 respectively on the file of Additional Special Judge for CBI Cases, Chennai.
For Appellant : Mr.V.Gopinath, Senior Counsel for Mr.S.MuthumalaiRaja For Respondent : Mr.K.Srinivasan, Special Public Prosecutor (CBI cases) COMMON JUDGMENT These three appeals are against the common judgment passed by the learned Additional Special Judge for CBI Cases, Chennai in C.C.Nos.66 to 68 of 2001, dated 06.05.2004.
2. On a consolidated complaint given by the Chief Vigilance Officer, Indian Bank to the Joint Director, CBI, on 25.11.1997, a case has been registered against the appellant M.Ramasamy, Manager of Overseas Branch at Chennai. As a result of investigation, three final reports have been lodged. Since the events and allegations of fraud, misappropriation and cheating are so interconnected, the trial Court has framed charges under Sections 477A, 420 IPC and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act,1988 in each of the cases. Pursuant to a memo filed by the accused/appellant for joint trial, all the three cases were taken up for joint trial by recording evidence in common. Prosecution examined 19 witnesses and 141 exhibits were marked through them. When questioned under Section 313(2) of Cr.P.C., the accused has denied the incriminating evidence and has tendered one exhibit in support of his defence.
3. Accepting the case of the prosecution, the trial Court has held that the charges leveled against the accused in all the three cases were proved by the prosecution and convicted the accused and sentenced him to undergo imprisonment, which reads as under:
C.C.No.66 of 2001:Accused-Ramasamy
C.C.No.67 of 2001 : Accused-Ramasamy
C.C.No.68 of 2001 : Accused-Ramasamy
The sentence of imprisonment imposed on the accused in all the three cases are ordered to run concurrently and the period of sentence if any already undergone by the accused is ordered to be set off as provided under law. The above said judgment is under challenge in all these three appeals.
4. Background of the cases:
The appellant/accused[Ramasamy] was employed as Manager Scale II, during the relevant point of time. He was in-charge of Overseas Branch, Chennai. Grave fraudulent acts under various categories alleged to have been committed by the appellant[Ramasamy] came to light through the Chief Vigilance Officer, who has lodged a consolidated complaint regarding the fraudulent act of the appellant to the tune of Rs.47.99 lakhs, out of which the bank has incurred a loss of Rs.17.95 lakhs. The perusal of the complaint marked as Ex.P1 through the defacto complainant[PW1] contains four major types of fraudulent acts alleged to have been committed by the accused [Ramasamy] between 04.09.1992 and 03.07.1996, while he was working at the Remittance/Imports Department of Overseas Branch, Chennai.
(a) Royapettah Branch of SBI, a non authorised Branch has remitted Rs.4,25,80,100/- by means of credit advice dated 24.06.1996 to Overseas Branch, Chennai for clearing the import bill of one of their customers M/s Madras Cements Ltd. This amount was in excess by Rs.3,36,789/- than the required amount, due to some error in calculation of interest by Royapettah Branch, Manager, Imports Department instead of refunding the excess amount to Royapettah Branch/Customer Mr.M.Ramasamy credited the amount in the Nostro Mirror Account (the Nostro account with a Foreign Bank-maintained and monitored at Overseas Branch, Chennai) of American Express Bank, New York. On 03.07.1996, he has debited this account for Rs.3,56,500/-
and issued a Banker's Pay Order for Rs.3,56,500/- in favour of Mr.Anthony. For the difference amount (Rs.3,56,500/- - Rs.3,36,789/-), he has reduced branch income account. It is learnt that Mr.Anthony, who is a shop owner at Selaiyur, Chennai near the residence of Mr.M.Ramasamy and a close family friend of Ramasamy has encashed the BPO, through his Bank Account maintained at UCO Bank, Selaiyur.
(b) Mr.M.Ramasamy credited the foreign Bill Stamps Account amounting to Rs.9,11,068/- on 16 occasions by unauthorised ways during the period from 25.07.1994 to 30.07.1996 by falsifying the account quoting ordinary rates to the customer and applying the favourable exchange rate for the branch's for accounting purpose, by reducing the income of the branch. The difference amount fraudulently withdrawn by means of debit vouchers on five occasions from 04.06.1994 to 26.06.1996 totalling Rs.5,10,000/-.
(c) While the appellant/accused[Ramasamy] was working in the Remittance Department at Overseas Branch, Chennai had misappropriated US dollars and travellers cheques by unauthorisedly debiting the amount in Sundries Receivable(remittance) account and crediting the same in Nostro Mirror Account (for travellers cheques) and foreign currency and coins purchase account (FCCP) (for currency notes) and had misappropriated the same and to cover up the fraud, he has fabricated income accounts of the branch thereby, caused loss of Rs.5,27,134/- to the bank for misappropriation of foreign currency and travellers cheques. During the same time, the appellant[Ramasamy] has removed the used Foreign Bill Stamps and had recyled the same to the tune of Rs.30,04,796/-. Several vouchers, books, records and documents connected to the above fraudulent transaction are found missing and the appellant[Ramasamy], who is responsible for the said record, has discreetly removed it to cover up his fraudulent act mentioned above. After investigation, three separate final reports have been laid by the prosecution.
5. Charge framed against the accused in C.C.No.66 of 2001:
(1)Under Section 477A of IPC for fraudulently and dishonestly crediting a sum of Rs.3,54,000/- into Nostro Mirror Account of American Express Bank, New York instead of crediting the same either in the Sundry deposit of the Overseas Branch or sending back a sum of Rs.3,36,789 to Indian Bank, Royapettah Branch, which has sent the excess amount relating to the transaction and account of M/s Madras Cement Limited and another sum of Rs.17,201/- which was received by Overseas Branch by way of income as interest received from various branches, which was misappropriated by the accused [Ramasamy] by adding the said amount with the excess amount of Rs.3,36,789/- sent by Indian Bank, Royapettah Branch, by making the total sum of Rs.3,54,000/- equivalent to 10000 US dollars as per the exchange rate prevailing on 03.07.1996.
After making false credit entry in the Nostro Mirror Account as mentioned above, the appellant[Ramasamy] had fraudulently and dishonestly issued false merchant sales slip for 18032 US dollars against the genuine transaction of 8032 US dollars of CFBC collection of foreign bill No.3162 of 1996 of Indian Bank, Porur Branch, by fraudulently adding 10000 US dollars making at 108032 USD equivalent to Rs.3,54,000/- India currency and crediting it into Nostro Mirror Account fraudulently. The appellant[Ramasamy] had debited Rs.3,56,500/- from the Nostro Mirror Account of American Bank, New York on 26.07.1996 by way of issuing a banker's pay order in favour of one P.Antony for Rs.3,56,500/-. The said P.Antony had retained Rs.3,50,000/- towards adjustment of the loan advanced by him to the accused and returned the balance amount of Rs.6500/- to the accused/appellant. In order to rectify the imbalance in the account, the accused[Ramasamy] has created a merchant purchase slip dated 30.07.1996 for 10000US dollars at the rate of Rs.35.65 per dollar equivalent to Indian Currency.
(ii) In the course of the above said transaction, the accused/appellant had cheated Rs.3,56,500/- by dishonestly inducing Indian bank to issue BPO for the said sum thereby committed offence punishable under Section 420 of IPC.
(iii) Being a public servant employed as Manager in Indian Bank, Overseas Branch, Chennai by corrupt, illegal means and by otherwise, the accused abusing his official position obtained pecuniary advantage to the tune of Rs.3,56,500/- and thereby committed the offence punishable under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
6. Charge framed against the accused in C.C.No.67 of 2001:
(i) The accused/appellant, while discharging his duty as Manager, Indian Bank, Overseas Branch, on or about 29.09.1993 wilfully and with an intent to defraud, destroy or alter, mutilated certain books of accounts of Indian Bank, Overseas Branch, Chennai, unauthorisedly debited the expenditure account “OD interest” for Rs.1,95,838/- and unauthorisedly credited 5000 US dollars equivalent to Rs.1,57,500/- into Nostro Mirror Account of American Express Bank, New York and Rs.39,338/- in the Sundries Receivable(remittance account) and obtained travellers cheque and further, prepared merchant sale slip for 5000 US dollars, deliberately omitted to make entry for issuance of 10 American Express Travellers cheque of 500 US dollars each bearing No.GZ 034542478 to GZ 034542487 in the traveller cheque issue register and further altered the said travellers cheque stock register in the closing balance column and debit column, thereby obtained 5000 US American Express Traveller cheque and thereby committed an offence punishable under Section 477A IPC.
(ii) In the course of the same transaction, cheated Indian Bank to the tune of Rs.1,57,500/- by dishonestly inducing the bank to deliver 10 American Express Traveller's cheques, thereby committed an offence punishable under Section 420 IPC.
(iii) Being a public servant employed as Manager in Indian Bank, Overseas Branch, Chennai by corrupt, illegal means and by otherwise, the accused abusing his official position as a public servant obtained pecuniary advantage to the extent of 5000 US dollars equivalent to Rs.1,57,500/-, thereby committed the offence punishable under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
7. Charge framed against the accused in C.C.No.68 of 2001:
(1)The accused/appellant [Ramasamy], while serving as Manager, Indian Bank, Overseas Branch, Chennai on 21.06.1993, has credited foreign currency and coins purchase account (in short “FCCP”) Rs.31,250/- equivalent to 1000 US dollar and prepared a voucher for Rs.31,250/- in order to cover up the above said bogus credit entry made in FCCP account, he has debited a sum of Rs.30,610/- under the head of “Cable Charges”, unauthorizedly utilizing Nellore Branch, Credit advice No.42, dated 26.05.1993 being the commission of Demand Draft for Rs.40 Indian Bank, Richmond Circle Branch, credit Advice No.51, dated 27.05.1993 for Rs.90/- being the FIRC charges, Commission on Inward TTS for Rs.510/-, instead of taking this amount of Rs.40/-, Rs.90/- and Rs.510/- into the income account diverted the same as one of the sources for the unauthorized credit made in the FCCP account and thereby committed the offence punishable under Section 477A of IPC.
(ii) In the course of the same transaction, the accused cheated Rs.31,250/- by dishonestly inducing the Indian Bank to deliver 1000 US dollars currency notes (equivalent to Rs.31,250/-) thereby committed an offence punishable under Section 420 of IPC.
(iii) Being a public servant employed as Manager, Indian bank, Overseas Branch, by corrupt or illegal means or by otherwise, the accused abused his official position and obtained pecuniary advantage to the extent of 1000 US dollars equivalent to Rs.31,250/-, thereby, committed offence punishable under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
8. Finding of the trial Court:
In C.C.No.66 of 2001, the trial Court, relying upon the evidence of PW2 [Mr.R.Balakrishnan] who conducted the enquiry as per the instruction of the department and submitted report, marked as Ex.P2- correspondence relating to issuance of Letter of Credit to M/s Madras Cement Limited through Indian Bank, Royapettah branch and subsequent claim made by Indian Bank, Overseas Branch, instructing Royapettah branch, to remit a sum of Rs.4,22,43,311 vide Ex.P17 along with interest at the rate of 24.25%, has found that the Indian Bank, Royapettah Branch has debited a sum of Rs.4,25,80,100/- into the account of M/s Madras Cement Ltd., on 24.06.1996 under Ex.P18. The excess amount of Rs.3,36,789/- paid by Rayapettah branch by oversight has been siphoned out by creating a false entry in Nostro Mirror Account and later, debited it by issuing Merchant Sales Slip marked as Ex.P21 and thereafter, a sum of Rs.3,56,000/- has been withdrawn through banker's pay order issued in favour of one P.Antony. In all these documents, the signature of the accused being identified by the witnesses, the trial Court has arrived at the conclusion that through Ex.P21-Merchant Sales Slip and Ex.P23 fictitious entry in the foreign currency and coin purchase (FCCP) account as if draft for 10000 US dollars issued to Overseas branch on 03.07.1996 and the same has been used by the accused to falsely debit a sum of Rs.3,56,500/- from Nostro Mirror Account on 26.07.1996 to issue bank pay order for the same sum in favour of Mr.P.Antony. The non reflection of corresponding entry in the Nostro Mirror Account proves the entry marked in Ex.P23, is a fictitious entry. From Ex.P28 entry regarding issuance of banker's pay order in favour of Mr.P.Antony for a sum of Rs.3,56,500/- the chain for siphoning by fraudulent entries gets completed and therefore, the trial Court has held the accused guilty of all the charges framed in C.C.No.66 of 2001.
9. In C.C.No.67 of 2001, the trial Court has held the accused guilty of the charges holding that during the relevant point of time, the accused was in-charge of Remittance Department on 29.09.1993, is an undisputed fact. On the said date a sum of Rs.1,95,838/- has been debited in the expenditure account under the 'OD interest' head. The said debit voucher is marked as Ex.P66. It has been prepared and authenticated by the accused. On the same date, the accused had also prepared the credit voucher for Rs.1,57,500/- crediting in to Nostro Mirror Account of American Express Bank. The said credit voucher is marked as Ex.P57. The credit voucher has been prepared and passed by the accused. For the amount credited into the Nastro Mirror Account corresponding 'Merchant Sales Slip' has been prepared. Ex.P58 is the Merchant Sales Slip for 5000 US dollars dated 29.9.1993, which has been prepared by the accused. If really travellers cheque for 5000 US dollar had been issued, the same should have been reflected in Ex.P54 Travellers Cheque Issue Register but, there is no entry to show that on 29.09.1993 5000 US dollar was issued. As per Ex.P54 Travellers Cheque Issue Register, there is no transaction at all between 27.07.1993 and 01.09.1993. Likewise, there is no entry for issuance of 5000 US dollars in Ex.P53, which is the Foreign Travellers Cheque Register maintained in the bank. Therefore, the trial Court has concluded that the accused has fabricated the document such as, credit voucher and debit voucher as well as Merchant Sales Slip to show as if 5000 US dollars have been genuinely transacted through the bank, whereas the travellers cheque stock Register and issue register were manipulated with alteration and corrections and does not reflect the true transaction. Further, the travellers cheque, which is the subject matter of the case, was found to be encashed by the accused and his wife through Exs.P62, P64 and P65. The misappropriated travellers cheque being used by the accused and his wife being proved through documentary evidence, the trial Court has held the accused guilty of all the charges framed in C.C.No.67 of 2001.
10. In C.C.No.68 of 2001, charge against the accused is that the accused by dishonestly inducing the bank to deliver 1000 USD, currency and cheated the bank to the tune of Rs.31,250/-(equivalent to 1000 US dollars) by creating false records and credit receipts. The said charges held to be proved by the trial Court based on the documents marked as Ex.P69 to P96. The credit voucher Ex.P69 representing sale of 1000 US dollars at the rate of Rs.31.250 per dollar has been prepared and signed by the accused. On the same day, the accused also prepared a debit voucher debiting a sum of Rs.30,610/- towards Cable Charges account, which is marked as Ex.P70. The said amount is credited to foreign currency and coin purchase account (FCCP). But the said debit is not reflected in Ex.P55 register maintained by the bank for Cable Charges. The accused has fraudulently passed the debit voucher Ex.P70 for Rs.30,610/- on 21.06.1993, but the same has not been reflected in the Cable Charges account register Ex.P55. Since the accused has prepared both the debit and credit voucher for the said sum, which does not reflect in the register maintained for the said purpose, it proves the guilt of the accused for fabricating the document. This further gets strengthened by the manipulation of the credit advice dated 26.05.1993 from Richmond Circle Branch Credit Advice No.51, for Rs.90/- being the FIRC Charges, and Commission on Inward TTs for Rs.510/- being used for making false entry.
On analysis of the evidence, the trial Court has found the accused guilty of all the charges framed in all these three cases.
11. Submissions on behalf of the appellant/accused:
The learned Senior counsel appearing for the appellant submitted that in C.C.No.66 of 2001, the prime allegation against the accused/appellant is that he had fabricated the bank records and has siphoned Rs.3,56,500/- by way of Banker's Pay Order issued in favour of Antony. In turn, Antony's has encashed the amount through his bank account in UCO Bank, Selaiyur branch retained Rs.3,50,000/- towards the loan due. As a proof, the prosecution has relied upon Ex.P97 the so called letter alleged to have been given by Antony's, the Ex.P97 is a document inadmissible in evidence, for the reasons, the said Mr.P.Antony has not been examined by the prosecution. The writings in Ex.P97 has not been identified by anybody and proved that it was written by Mr.P.Antony. In the absence of proof that Mr.P.Antony has written the letter marked as Ex.P97 coupled with non-examination of Mr.P.Antony is fatal to the prosecution case.
12. When there is no direct evidence to show that the alleged sum of Rs.3,56,500/- was siphoned by the accused through Antony's, the other documents such as entry in the Nostro Mirror Account and the relevant credit and debit vouchers, which have been prepared by the appellant/accused in the normal course of his duty, cannot be pitted against him to draw an inference that the appellant has cheated the bank for a sum of Rs.3,56,500/-.
13. Further, the evidence of PW2, PW5, PW10 and PW16 are contrary to each other. Their evidence cannot be relied upon to convict the appellant when there is evidence to show that, the extra amount paid by the Indian Bank, Royapettah Branch towards interest for the letter of credit issued for M/s Madras Cement Limited, was credited to the account of M/s Madras Cement by end of September as deposed by P.W.7, who admits the Indian Bank issued credit advice of Rs.3,56,500/- which included the interest charged twice the excess rate of interest and they have received the entire amount, after suffering loss for some time.
14. There is no complaint from M/s Madras Cement Limited alleging any loss and there is no evidence to show that a sum of Rs.3,56,500/- was paid to Antony's. Neither Mr.P.Antony was examined nor the Banker's Pay Order alleged to have been issued to Mr.P.Antony had seen the light of the day. In the said circumstances, the conviction of the accused/appellant for the alleged offence under Section 447A, 420 of IPC and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, is totally erroneous and amounts to miscarriage of justice.
15. In C.C.No.67 of 2001, the learned Senior counsel appearing for the appellant based his attack on the trial Court's judgment on the ground that the evidence of PW3 and PW5 was wrongly relied upon by the trial Court for convicting the appellant without considering the discrepancies and inconsistencies in their deposition. The original travellers cheque has not been produced before the Court. The photo copy of Ex.P62 series cannot be a substantial evidence to prove the guilt of the accused, more particularly, when one of the listed witnesses by name Mr.Murali of American Express Bank has not been examined by the prosecution. When there is no evidence to show that the travellers cheques were entrusted to the appellant/accused, no criminal liability can be mulcted against him. Uncorroborated evidence of PW3 and PW5 alleging fraudulent alteration of travellers cheque stock register, cable charge register cannot be taken as a gospel truth, since these witnesses have many things to hide to save their own skin. When there is a collective responsibility on all the officers, who are dealing with the transaction, without any positive evidence, just by surmise and inference, the accused has been isolated and held guilty for the offence. Hence, he has to be extended the benefit of doubt and be acquitted of all the charges.
16. In C.C.No.68 of 2001, the attack of the learned Senior counsel appearing for the appellant is again on the evidence of PW3[Mr.N.Radhakrishnan] as base for conviction. The responsibilities of making entries regarding the credit voucher and debit voucher for issuance of foreign currency is not vested with the appellant. While so, the trial Court has erroneously inferred that the non-mentioning of the entries in the register in respect of credit voucher Ex.P69 and debit voucher Ex.P70 proves the guilt of the accused.
17. The learned Senior counsel appearing for the appellant by way of summing up his submissions individually pointing out in each case the lacuna in general submitted that the trial Court has placed undue reliance to the so called extra-judicial confessional statement alleged to have made by the accused, which has been spoken to by PW2, PW5, PW10 and PW16. These witnesses are interested witnesses to escape from the wrath of criminal prosecution and departmental proceedings for their dereliction of duty the all have joined together and in one voice point the accusing finger to the appellant. The omission on the part of the prosecution to examine the vital witnesses like P.Antony, Mr.Murali of American Express Bank and the relevant material original documents like BPO, Travellers Cheque etc., exposes the lacuna in the prosecution case. Hence, the appellant is entitled for the acquittal.
18. Submission on behalf of the prosecution/respondent:
The learned Special Public Prosecutor (CBI Cases) appearing for the respondent submitted that Ex.P1-complaint itself speaks volume about the prima facie materials against the accused, which is an outcome of the preliminary departmental enquiry conducted by the Indian Bank. Based on the complaint, First Information Report was registered on 08.04.1998, which is marked as Ex.P131. The non production of original banker's pay order for Rs.3,56,500/- issued in favour of Mr.P.Antony is of no significance, because Ex.P28, the day book maintained by the Bank, indicates that on 26.07.1996, the banker's cheque for a sum of Rs.3,56,500/- show debit in favour of Mr.P.Antony. The letter marked as Ex.P97, which was signed by Mr.P.Antony reveals the fact that the appellant had borrowed money from Mr.P.Antony and he has repaid it by way of BPO for Rs.3,56,500/-. He withdrew entire amount, retained a sum of Rs.3,50,000/- towards his due and gave back a sum of Rs.6,500/- to the appellant. This letter is signed by Mr.P.Antony on 10.12.1996 as spoken to by PW5. The verification report Ex.P52 dated 04.12.1996 given by one S.Balasubramaniam and J.Ramani, Indian bank, Overseas Branch, Madras regarding encashment of BPO No.118257, dated 26.07.1996 for Rs.3,56,500/- favouring Mr.P.Antony proves that he has withdrawn the amount under four cheques. The manner in which Nostro Mirror Account was embezzled by crediting the excess interest amount liable to be paid to M/sMadras Cements Limited and the manipulation of credit advice of 8032 US dollars into 10,8032 USD is explained by PW2. The relevant entries like Exs.P20,21,and 23 are prepared by the appellant herein. The missing of vouchers bundle dated 03.07.1996 which was supposed to be in the custody of the appellant, would clearly show the intention of the appellant to screen the evidence of crime committed by him.
19. The clinching evidence of credit entry of Rs.3,54,000/- falsely entered by the appellant in the Nostro Mirror Account, which is marked as Ex.P23 is suffice to prove the case against the appellant for making a false credit entry into Nostro Mirror Account. Almost equal amounts have been debited for issuance of banker's pay order in the name of Mr.P.Antony. The relevant debit entry in Ex.P26 was also in the hand writing of the appellant, the departmental enquiry also reveals that Mr.P.Antony has received the Banker's Pay Order from the appellant towards discharge of his loan. The non examination of Mr.P.Antony is not wanton. After registering the case, letters were sent to Mr.P.Antony to the last known address, but they were returned as “unclaimed” marked through Ex.P132. Hence, the previous statement of the person not found or whose attendance cannot be procured is relevant, if the statement is made in the course of business or in particular, when it consists of entry or memorandum made by him in books kept in the ordinary course of business or acknowledgment returned or signed by him of the receipt of the money etc. is admissible under Section 32(b) of the Indian Evidence Act.
20. While the prosecution has proved the chain of events starting from fraudulent credit entry into Nostro Mirror Account and fabrication of credit voucher for 8032 US dollars at Rs.18,032/- and fraudulent issuance of Banker's Pay Order in favour of Mr.P.Antony by debiting a sum of Rs.3,56,500/- equivalent to 10000 US dollars by the appellant is clearly established through records exhibited by the prosecution and spoken to by PW2, PW5, PW10 and PW16, the trial Court has rightly held the appellant guilty of the charges. In so far as the payment of money to Antony's is concerned, PW12 [G.Lakshmanan], the Senior Manager of UCO Bank has spoken about how Mr.P.Antony has deposited the Banker's Pay Order and withdrawn the money on four different occasions. The Bank statement Ex.P111 re-enforces the case of the prosecution. Therefore, there is no need to interfere with the well considered judgment of the trial Court.
21. Heard the learned Senior Counsel appearing for the appellant and the learned Special Public Prosecutor (CBI Cases) appearing for the respondent and perused the materials available on record.
22. Finding of this Court in Crl.A.No.820 of 2004:
So far as the allegation of fabricating the records and fraudulent withdrawal of Rs.3,56,500/- by the appellant, the prosecution has proved the guilt of the appellant by adducing adequate evidence. Exs.P110 and P111 are the current account opening form in the name of Yoga Murugan Stores, Selaiyur, Proprietor Mr.P.Antony and the statement of accounts from 30.07.1996 to 29.09.1997. Through PW12[Mr.G.Lakshmanan], the prosecution has proved that a sum of Rs.3,56,500/- had been deposited by way of Banker's Pay Order into the account of Mr.P.Antony and the same has been credited on 30.07.1996. The said Mr.P.Antony has withdrawn the entire amount through four different cheques marked as Exs.P113 to P116. The application form for saving bank account at Bank of Madura Limited, Selaiyur Branch in the joint name of appellant/Ramasamy, W/o Leela Bai and D/o Lakshmi had been introduced by Mr.P.Antony. The said application form is marked as Ex.P107, which was spoken to by PW8. The cheque for Rs.20,000/- issued by the appellant's daughter to Mr.P.Antony is marked as Ex.P103. The account in Indian bank, Tambaram branch opened in the name of Lakshmi, who is the daughter of the appellant/Ramasamy has been introduced by Mr.P.Antony. The said opening form is marked as Ex.P104. The signature of P.Antony is marked as Ex.P106. The signatures of Mr.P.Antony found in all these documents had been compared with the signature found in Ex.P97 letter and the handwriting experts had given their opinion that the signatures were found tallied.
23. On a cumulative assessment of these evidence, the close proximity between Mr.P.Antony beneficiary of fraudulent banker's pay order for Rs.3,56,500/- and the accused herein who has prepared the fraudulent voucher and entries is clearly established. Under these circumstances, the non examination of Mr.P.Antony or non-production of original banker's pay order does not make the case of the prosecution unbelievable. The issuance of banker's pay order is the result of false credit entry made in to the Nostro Mirror Account by the appellant. But for the false entry, the corresponding debit for issuance of the subject banker's pay order ought not to have arisen. Further, the beneficiary of Banker's Pay Order of Mr.P.Antony and the close proximity of the appellant with the said P.Antony viewed with the letter Ex.P97 points the guilt towards the appellant and none else. Therefore, this Court has no reason to interfere with the well considered judgment of the trial Court rendered in C.C.No.66 of 2001.
24. The learned counsel for the appellant has submitted that the period of sentence may be modified, in view of the fact the petitioner is 64 years old and occurrence was taken place in the year 1997.
25. Taking note of the above fact, this Court while confirming the finding of the conviction arrived at by the trial Court viz., learned Additional Special Judge for CBI Cases, Chennai in C.C.No.66 of 2001 dated 06.05.2004, modifies the sentence as follows:
The bail bond shall stand cancelled. The sentence of imprisonment imposed on the accused shall run concurrently and the period of sentence if any already undergone by the appellant is ordered to be set off as provided under law. The appellant is hereby directed to surrender within 2 months from the date of this judgment. In case, he fails to surrender within 2 months, the respondent shall secure him and remand to prison. With the above modification, the Criminal Appeal No.820 of 2004 is disposed of.
26. Finding of this Court in Crl.A.No.821 of 2004:
Regarding C.C.No.67 of 2001, which relates to 10 travellers cheque each for a face value of 500 US dollars equivalent to Rs.1,57,5000/-, it is the consistent case of the prosecution witnesses that the appellant herein who was in charge of remittance department during the month of 1997 was handling issuance of travellers cheque to the customers. By abusing his official position, he has made an unauthorised debit in “OD interest” for a sum of Rs.1,95,838/- and unauthorisedly, credited 5000 US dollars in the Nostro Mirror Account. (1) Against such credit, he has obtained 10 travellers cheque each for 500 US dollars. (2) In order to adjust the account, he has also prepared Merchant purchase slips for the equivalent value. Further to cover up the fraudulent acts, he has altered the stock register as well as issue register of travellers cheque. The said act has been vividly deposed by PW2. The Foreign travellers cheque register marked as Ex.P53, travellers cheque issue register marked as Ex.P54 and cable charges register marked as Ex.P55 indicate a sum of Rs.1,95,838/- through the debit voucher dated 20.09.1993 had been debited in to the expenditure account under “OD interest” head. The same is marked as Ex.P68. This has been prepared and authenticated by the accused. The corresponding credit voucher on the same day for Rs.1,57,500/- is marked as Ex.P57, which was also prepared and passed by the accused. The transaction amount of Rs.1,57,500/- is equivalent to 5000 US dollars. On that date, the merchant sales slip corresponding to the same amount bearing No.11994 had also been prepared by the accused and the same is marked as Ex.P58. For all these alleged transactions done by the appellant, there is no corresponding entry in Ex.P54 which is the travellers cheque, issue register maintained by the remittance department. There was no transaction of travellers cheque at all in the complainant bank between 28.09.1993 and 30.09.1993 as per the travellers cheque issue register. Ex.P62, the photograph of the travellers cheque proves that the cheques were utilized by the appellant and his wife. What more evidence is required to hold the appellant guilty of the charges? The passport of the appellant and his wife indicate the said cheques were exchanged at Singapore by the appellant and his wife. This clearly shows that indiscriminately the appellant had misused his office by misappropriating travellers cheque entrusted to him by creating fraudulent entries in the register by altering the closing balance in the travellers cheque register, which are marked as Exs.P66 to P68. Therefore, the non-production of original travellers cheque has no relevance at all since the photocopy is available. The corresponding entries, encashment are all proved through documentary evidence. While the prosecution is able to establish through other documents that the appellant had encashed the subject travellers cheque. Hence, this appeal is liable to be dismissed.
27. The learned counsel for the appellant has submitted that the period of sentence may be modified, in view of the fact the petitioner is 64 years old and occurrence was taken place in the year 1997.
28. Taking note of the above fact, this Court while confirming the finding of the conviction arrived at by the trial Court viz., learned Additional Special Judge for CBI Cases, Chennai in C.C.No.67 of 2001 dated 06.05.2004, modifies the sentence as follows:
The bail bond shall stand cancelled. The sentence of imprisonment imposed on the accused shall run concurrently and the period of sentence if any already undergone by the appellant is ordered to be set off as provided under law. The appellant is hereby directed to surrender within 2 months from the date of this judgment. In case, he fails to surrender within 2 months, the respondent shall secure him and remand to prison.
With the above modification, the Criminal Appeal No.821 of 2004 is disposed of.
29. Finding of this Court in Crl.A.No.822 of 2004:
The charge against the appellant is that he has induced the bank to deliver1000 US dollars currency equivalent to Rs.31,250/- by falsifying the records and misusing the credit received from other branches by wrongly giving credit in the foreign currency and coin purchase (FCCP) account and thereafter, debited the amount fraudulently as if USD was sold. The prosecution has explained about the procedure for issuance of foreign currency by the bank through PW3 and the role of the accuse in defrauding the bank. The accused as Manager in the Overseas Branch looking after the remittance department, has prepared the voucher dated 21.06.1993 for Rs.31,250/- representing sale of 1000 US dollars at the rate of Rs.31.25 per dollar. The credit voucher is marked as Ex.P69. On the same day, he has prepared debit voucher for debiting cable charges account for Rs.30,610/-. The said debit voucher is marked as Ex.P70. After debiting the cable charges of Rs.30,610/-, the said amount is credited to FCCP account. Ex.P55 is the register maintained by the complainant bank during the relevant point of time. A perusal of Ex.P55 shows that there is no debit of cable charges for a sum of Rs.30,610/- on 21.06.1993 as it should be, if Ex.P69 is a genuine debit voucher. When there is no debit of cable charge, the corresponding credit in the FCCP account made by the accused is obviously to siphon the money, based on the fictitious credit entry. To cover up the fictitious entry, the appellant has utilized various credit advice received from the other branches and diverted the same by unauthorizedly crediting into the FCCP account instead of crediting it into the income account of the branch.
30. The relevant credit advices misused by the appellant were marked as Exs.P71 and P72. The other income of the bank like commission from Demand Drafts were also diverted into FCCP Account. Various credits passed to the Nostro Account representing invert remittance and corresponding debit voucher marked as Exs.P72 and P74 were all prepared and passed by the accused when he was in-charge of remittance department. 1000 US dollars had been issued under Ex.P69 by the appellant. In the credit claim of Ex.P69, the appellant has mentioned as FCCP. For issuing US dollars over and above 500 dollars, the Reserve Bank of India's permission is mandatory, whereas the accused has sold 1000 US dollars under the credit of FCCP without Reserve Bank permission and without any detail of the person or customer who has purchased the foreign currency. In order to show enough balance in FCCP account for issuance of the USD, the appellant has fabricated Ex.P70. The debit voucher towards cable charges is to offset Nostro Mirror Account a sum of Rs.30,610/-. As a responsible officer entrusted with dealing foreign currency and foreign account, the appellant instead of discharging his duty in accordance with the norms prescribed by the bank and the Reserve Bank of India had violated and misused his power to the core. Therefore, this Criminal Appeal is liable to be dismissed.
31. The learned counsel for the appellant has submitted that the period of sentence may be modified, in view of the fact that the petitioner is 64 years old and occurrence was taken place in the year 1997.
32. Taking note of the above fact, this Court while confirming the finding of the conviction arrived at by the trial Court viz., learned Additional Special Judge for CBI Cases, Chennai in C.C.No.68 of 2001 dated 06.05.2004, modifies the sentence as follows:
The bail bond shall stand cancelled. The sentence of imprisonment imposed on the accused shall run concurrently and the period of sentence if any already undergone by the appellant is ordered to be set off as provided under law. The appellant is hereby directed to surrender within 2 months from the date of this judgment. In case, he fails to surrender within 2 months, the respondent shall secure him and remand to prison. With the above modification, the Criminal Appeal No.822 of 2004 is disposed of.
33. Evidence let in by the prosecution undoubtedly prove that the appellant has manipulated the records wherever possible and fabricated the document and accounts knowing fully well that it will not come to light immediately till the account is audited and reconciled in future. Having understood the nuances of banking transaction and taking advantage of his official position, the appellant has committed offence of falsification of account, fabrication of document and thereby cheated the bank to the tune of Rs.3,56,500/- by issuing banker's Pay order in favour of Mr.P.Antony; Rs.1,57,500/- by fraudulently issuing Travellers Cheque worth 5000 US dollars; and Rs.31,250/- by misappropriating 1000 US dollars by creating false document. Hence, these appeals are disposed of with the above modification.
04.10.2017 Index:Yes/No Internet:Yes/No ari Speaking order/non Speaking order To
1. The Additional Special Judge(CBI Cases), Chennai.
2. The Inspector of Police, SPE/CBI/ACB, Chennai.
3. The Special Public Prosecutor(CBI Cases), Chennai.
Dr.G.Jayachandran,J.
ari Pre-delivery judgment made in Crl.A.Nos.820 to 822 of 2004 04.10.2017