The present appeal assails the correctness of the conviction and sentence imposed on the appellant by the learned Principal Special Judge for CBI Cases, Chennai.
2. The appellant/accused was put on trial for the offence punishable under Sections 120B, 420(12 counts), 467 r/w 471 IPC (12 counts) and Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988. The trial Judge found him not guilty for offence under Section 120-B of IPC. However, found guilty of charges for the offence under Sections 420, 467 r/w 471 of IPC and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and has sentenced him to undergo 2 years RI and to pay a fine of Rs.3,000/- in default, to undergo 2 months RI for the offence under Section 420 IPC (12 counts); to undergo 1 year RI and to pay a fine of Rs.1000/- in default to undergo 2 months RI for the offence under Section 467 r/w 471 of IPC and to undergo 2 years RI and to pay a fine of Rs.3000/- in default, to undergo 2 months RI for the offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. The trial Court directed that the sentence to run concurrently.
3. The case of the prosecution as unfold through the witnesses is as follows:
The accused/appellant Mr.S.Sathiyaseelan was working as a Manager in Canara Bank, Sainapuram Branch, Arakonam Taluk, North Arcot District, Tamil Nadu between 01.01.90 to 05.08.92. While functioning in the above capacity and discharging his duty, he dishonestly and fraudulently abusing his official position and granted loans to 12 unknown persons for purchase of sheep, totally a sum of Rs.96,000/-. Later, it was found that the non-existing persons and the accused in connivance with the other unknown persons have forged the documents and have fabricated records as if loan disbursed to these 12 non-existing persons and later, siphoned the money from the account opened in the name of those fictitious persons by further creating forged withdrawal slips.
4. In support of the prosecution, 11 witnesses were examined and 171 exhibits were marked. No witness or document marked on behalf of the accused.
5. PW2-Mr.Nagarajan, who succeeded the accused as Bank Manager of Canara Bank, Sainapuram has identified the sheep loan applications processed by the accused and the disbursement of money in the name of those 12 unknown persons. He has explained the procedure to be followed by the Bank for granting sheep loan and pointed out, how the accused has floated the procedure and without filling up the loan applications and affixing the photos of the loanees and without proper introduction for opening the bank account, loan amount has been credited into the account of those 12 fictitious persons, without any essential particulars for granting loan. The Village Administrative Officers of the respective areas, who are examined as PW3, PW4 and PW5 have deposed that there were no such persons by name 1.Mr.R.Dhanasekaran, 2.Mr.V.Umamaheswaran, 3.Mr.M.Soundararajan, 4.Mr.M.Sivakumar, 5.Mr.K.Ramaswamy,
6. Mr.S.Kannappan, 7.Mr.S.K.Ramabadran, 8.Mr.D.Murugesan, 9.Mr.K.Ramalingam, 10.Mr.K.Arumugam, 11. Mr.R.Jayaram and 12.S.Nandakumar in the locality mentioned in the loan application. The Extra Department Post Master Mr.R.Mani, who has been examined as PW8 has also substantiated that the evidence of PW2, PW3 and PW4 regarding the nonexistent of above named persons in the said locality. Thus, the prosecution has established that the twelve named persons for whom, the loan was sanctioned and disbursed by the accused are all fictitious persons and the loan amount had been withdrawn by the accused himself. Therefore, the trial Court had found him guilty and convicted and the sentence as stated above.
6. The accused/appellant has put forth his submission challenging the judgment of the trial Court on the following heads:
The charges framed by the trial Court is defective and caused prejudice to the accused. More than 3 incidents of above said crime have been clubbed together violating the Section 219 of Cr.P.C. The order of granting sanction to prosecute is defective and it does not contain the details like materials perused by the sanctioning authority before granting sanction. This indicates the non-application of mind before granting sanction by the authority. The trial Court has failed to consider the evidence of PW10 [Mr.Balasubramanianathan], who has spoken about the manner in which the loan amount used to be disbursed to the loanees by calling the token number and on appearance of the parties, the amount used to be disbursed by cash in person. Further, during the departmental enquiry, all the loanees were summoned and their existence were verified. The fact which has been admitted by PW11, has not been properly considered by the trial Court. The animosity prevailing between PW2 and the accused, which has been highlighted in the cross examination of witness has not been properly appreciated by the trial Court. The examination of the Village Administrative Officers and the voters list are not conclusive evidence to presume the non-existence of the loanees. The evidence of Veterinary Doctor-PW7 is not believable, since he has not maintained any record for issuance of certificate and he could not say whether he has issued any certificate to the subject loan or not.
7. The learned counsel for the appellant contended that on a cumulative assessment of evidence let in by the prosecution, the defence has proved that due to want of shortage of man power, the accused as Manager used to do all the jobs including the work of a Clerk. Filling up the application forms by him cannot lead to the inference that the loanees all are fictitious persons, more particularly, when PW10 has deposed that the loan amount was disbursed to the loanees personally and PW11 has deposed that he has not aware of the fact that Mr.L.Boopathy, the investigating Officer initially investigated, parade all the loanees and examined them.
8. Per contra, the learned Special Public Prosecutor (CBI cases) through the evidence of PW2, who has vividly described the procedure for disbursing the loan starting from the pre-condition that the loanees must be residence of the service area of Sainapuram, which covers nearly 10 to 12 villagers. They should furnish no objection certificate from the bank or the Agricultural Co-operative Society in that area that he has no due to pay. The loanee has to open a savings bank account in their branch, which has to be introduced by any other customer of the bank having account in the same branch and the introducer, should fill up his name and account number along with signature in the account opening form. The loan application form should contain information regarding the infrastructure facility available to the loanees if the cattle has been purchased. It should be accompanied with the Veterinary Doctor's certificate, ear tag and photograph of the cattle. If the cattle is not purchased, then the money should be paid directly to the vendor.
9. This Court finds that none of the 12 loans sanctioned by the accused has followed the above procedure. The relevant documents, which are marked as Exs.P3 to P169, clearly proves the fact that the loans were disbursed to the non-existent persons and the same siphoned by the accused. As far as, the charges framed by the trial Court based on the final report, we find the entire transaction centers around is the disbursement of sheep loan during the period from 01.01.1990 t0 05.08.1992 bearing in ALS Nos.31/91 to 50/91. The loans had been disbursed during the month of August and September 1991.
10. The Section 219 of Cr.P.C., permits, three offences of same kind within a year may be charged together. However, exception is provided under Section 220 of the Criminal Procedure Code, which reads as under:
“220 Trial for more than one offence: (1)If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of Section 212 or in sub-Section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860).”
11. Since the material placed before the Court along with the final report indicating that the accused/appellant along with unknown persons have conspired to commit the offence of fabrication of document and cheating by using fabricated documents, single charge has been framed for 12 counts. Therefore, there is no error in the manner, in which charge has been framed. Even otherwise, the accused/appellant has been put to notice about the charge framed against him, which states the fact that he along with other unknown persons have forged and fabricated documents in the name of 1.Mr.R.Dhanasekaran, 2.Mr.V.Umamaheswaran, 3.Mr.M.Soundararajan, 4.Mr.M.Sivakumar, 5.Mr.K.Ramaswamy, 6.Mr.S.Kannappan, 7.Mr.S.K.Ramabadran, 8.Mr.D.Murugesan, 9.Mr.K.Ramalingam, 10.Mr.K.Arumugam, 11. Mr.R.Jayaram and 12.S.Nandakumar. Knowing fully well that the non-existence persons had opened the bank account in the name of the said fictitious persons, without any introducer and thereby cheated Canara Bank to the tune of Rs.96,000/-. The appellant has understood the charge and had contested the case. Hence, the contention of the appellant that the charges framed against him is defective is unsustainable.
12. PW1-Mr.Aghoram, the competent authority who has granted sanction for prosecution, has deposed at length about his competence. After perusal of FIR, statement of witnesses, copy of loan document, ledger account, Saving Book Account and subsequent signature before sanctioning loan being subjectively satisfied about the prima facie case made out against the accused/appellant, he has granted the sanction. Certain admission made by the witness during the cross- examination does not indicate non-application of mind before granting sanction. Hence, the said attack on the sanctioning order also fails.
13. Regarding the probative value of the witnesses, the exhibits pertaining to the loan applications, which are annexed even without the photograph and address of the loanees, except signatures, per se leaves an impression that the appellant has not followed even the rudimentary requirement for granting loan. Coupled with the fact that the accounts opened in the name of those 12 persons without any introducer, strengthens the case of the prosecution that the loanees were non-existing persons. Except grant of loan and withdrawal of loan in the name of those 12 persons, nothing is available on record to show that these persons were existing with blood and flesh. At every stage, the procedure for granting loan had been ignored and violated by the accused/appellant. The reasons stated by the appellant that due to work pressure, he was not able to fill up the loan application, account opening form, pro-notes, declaration etc., are beyond any one's comprehension.
14. Finally, it is contented by the learned counsel appearing for the appellant that the prosecution has not proved that the appellant obtained any pecuniary advantage; therefore, he has to be exonerated.
15. This Court is unable to accept such submission for the simple reason that the very fact that public money has been siphoned out by improper means, knowingly and actively by the appellant/accused, leaves irresistible inference that the appellant is the beneficiary from the said illegal siphoning of money. There is no further proof required when the prosecution has clearly proved the siphoning of money in the name of fictitious persons, based on the forged documents prepared by the appellant as the Branch Manager of Canara Bank, Sainapuram. Therefore, this Court finds no error in the judgment of the trial Court.
16. In the result, the Criminal Appeal is dismissed. The conviction and sentence imposed on the appellant by the learned Principal Special Judge for CBI Cases, Chennai-104, is hereby confirmed.
22.09.2017 ari Index:Yes/No Internet:Yes/No Speaking order/non speaking order To
1. The Principal Special Judge for CBI Cases, Chennai.
2. The Inspector of Police, Special Police Establishment, Central Bureau of Investigation, Anti-Corruption Branch, 3rd Floor, Shastri Bhavan, Haddows Road, Nungambakkam, Chennai 600 006.
3. The Special Public Prosecutor (CBI Cases), High Court, Madras.
Dr.G.Jayachandran,J.
ari
Pre-delivery judgment made in
Crl.A.No.912 of 2005
22.09.2017