M.L.Balasubramaniam v. State by Inspector of PoliceACB/CBI,Chennai

The Appellant/Sole Accused viz M.L. Balasuramaniam was directed to bereleased on Bail in and by the order of this Court dated 24/12/98 and madein Crl.MP.No. 11394/98 in Crl.A.No.1122/1998.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.04.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No. 1122 of 1998M.L.Balasubramaniam.. Appellant/accused-vs-State by Inspector of PoliceACB/CBI,Chennai.. Respondent/complainantThis appeal is filed against the Judgment made in C.C.No.140 of1997 dated 30.11.1998 by the learned Principal Special Judge/PrincipalSpecial Judge for CBI Cases,Chennai.For appellant: : Mr.K.Shanker for Mr.S.RamasamyFor respondent : : Mr.N.Chandrasekaran Special Public Prosecutor for C.B.I.Cases JUDGMENTThis appeal has been preferred against the Judgment in C.C.No.140 of1997 on the file of the Principal Special Judge/Principal Special Judgefor CBI Cases, Chennai.2. The accused Mr.M.L.Balasubramaniam was working as a Clerk-cum-Cashier at Bank of India,Melapallipattu Branch, Tiruvannamalai-Sembuvarayar District. During the relevant period ie., from 17.9.1990 to20.8.1991, the charge against the accused is that while he was working asa Clerk-cum-Cashier at Bank of India, Melapallipattu Branch, fraudulentlyand dishonestly by misusing his official position as a Bank employee hasmisappropriated the amounts entrusted to him by the bank's customers viz.,M/s. E.R.Chandrasekaran(P.W.4),T.Gangadharan(P.W.5),V.Krishnan(P.W.6)S.Appakutti(P.W.7), V.K.Krishnan(P.W.8) and T.Muthusamy(P.W.9). When the https://hcservices.ecourts.gov.in/hcservices/ above said witnesses came to deposit the amounts in the said branch ofBank of India, the amounts were received by the accused as a Cashier ofthe said Bank and in token of receipt of the said amount, he had maderelevant entries in the pay-in-slip, passbook of the account holders andinitialled it. But without remitting the said amount, had made falseentries in the ledger without making entries in the scroll book and cashreceipt book and thereby misappropriated a total amount of Rs.58,500/-.Hence the accused has been charged under Section 409,477A,201 I.P.C andSection 13(2) r/w 13(1)(c)and (d) of the Prevention of Corruption Act 1988and the accused was dismissed from service on 22.11.1993.3. The case was taken on file by the Principal Special Judge for CBICases and on appearance of the accused on summons copies under Section 207Cr.P.C. were furnished to the accused and the charges were framed underthe provision of law and when questioned, the accused pleaded not guilty .4. On the side of the prosecution ,P.Ws 1 to 11 were examined and ExsP1 to P44 were exhibited.4a) P.W.1 is the then Manager of Bank of India, MelapallipattuBranch. He speaks about the procedure followed in the Bank, when thedeposit is made by the customer of the Bank in Savings Bank Accounts. Hewould depose that whenever the amount is deposited with the bank by thecustomer, necessary entries will be made by the cashier in the passbook ofthe customer and the counterfoil will be given to the depositor withcashier's initials and at the time, some of the depositors , after gettingnecessary entries in the chalans used to go near scroll section butwithout depositing the amount leave the Bank and in the evening after thebank transactions are over, the ledger maintained by the cashier will bechecked with the entries in the scroll book and the entries relating tothe customers who have failed to deposit the amount will be removed fromthe scroll book by the bank employee and entries in the cash receipt bookwill be compared with the entries in the scroll book and that the bankworking hours is from 10.00a.m., to 5.00p.m., daily with weekly holidayon Sunday.4b) P.W.2 is now working as Manager in Bank of India atPhalghat,Kerala and was working as a Deputy Chief Officer(Personnel)Coimbatore Regional Office from December 1987 to June 1993 and at thattime, he was deputed to Melapallipattu Branch in December 1991 to enquirecertain irregularities committed by the accused who was working as theCashier in the abovesaid branch. P.W.3,Thiru K.N.Varadarajan was theOfficer, who had assisted P.W.2 in this regard. According to P.W.2, he hadfiled his report regarding the investigation, he made in the said affairin February 1992. Ex P1 is the pass book of P.W.4 Thiru E.R.Chandrasekaranwho is having Saving Bank Account NO.3043 of Melapallipattu Branch of Bankof India. There is an entry on 17.9.1990 for the deposit of Rs.4500/- inEx P1. The said entry is Ex P2 which was made by the Cashier/the accusedin token of having received Rs.4,500/- in cash from the account holder and https://hcservices.ecourts.gov.in/hcservices/ the accused has also initialled the same. But the amount was not enteredinto the receipt book and scroll book, maintained by the account section.Ex P3 is the xerox copy of the scroll book dated 17.9.1990. Ex P4 is thecash receipt book for the entries made on 17.9.1990. P.W.2 would deposethat there is no corresponding entries made either in Ex P3 or in Ex P4for having received Rs.4,500/- by the accused under Ex P2. 4c) On 13.5.1991 a sum of Rs.6,000/- was received from T.Gangadharan(P.W.5) for the credit of his loan account Ex P6. As in the previous case,there was no corresponding entry made in the scroll book Ex P7 or in theCash receipt Book Ex P8 for the entry made in Ex P6, pay-in-slip for thereceipt of Rs.6,000/- from P.W.5. There was also no corresponding entrymade in Ex P9 Ledger. The said Customer Gangadharan had deposited Rs1,000/- under Ex P10 pay-in-slip towards the medium term loan obtained bythe said Gangadharan under ExP10, the accused as a Cashier hasinitialled. But there is no corresponding entries made in Ex P11 scrollbook and in Ex P12 Cash receipt book. Further there is no correspondingentries made in Ex P9 Ledger for the receipt of Rs.1000/- from P.W.5 on20.6.1991. On 30.5.1991, P.W8 Thiru V.Krishnan has deposited Rs.3,500/-towards his loan account under Ex P13 pay-in-slip in which the accusedhad signed. But there is no corresponding entry in Ex P14 scroll book andEx P15 Cash receipt book. But the accused has made an entry in Ex P16Ledger extract. But this amount was not brought to the account of thebank. One Thiru T. Muthusamy(P.W.9) has deposited Rs.3,500/-on 30.5.1991under Ex P17 pay-in-slip. But there is no corresponding entry in Ex P14scroll book and Ex P15 cash receipt book. In the Ledger account Ex P18,the accused had made an entry for the deposit of Rs.3,500/- by P.W.9 andsubsequently, it has been scored off. On 12.8.1991, Thiru K.Krishnan(P.W.6) has deposited Rs.10,000/- towards Jewel Loan account for which theaccused had made necessary entries in Ex P19. But the said amount was notentered by him in the scroll book Ex P20 and cash receipt book Ex P21. Theaccused had made an entry in Ex P22 for the deposit of Rs.10,000/- byP.W.6. But instead of entering the date of receipt of the amount as12.8.1991 he had put the date of receipt of the amount as 2.8.1991 therebymaking false entries in the account books maintained in the said Bank.Further he has made a false entry in the said account as to appear thatthe account was closed and the jewels were realised. P.W.7 Appakutty, theanother customer of the said Bank had deposited Rs.13,000/- in his S.B.A/cNo.903 and the accused had given two counterfoils one is for Rs.10,000/-under Ex P23 and another is for Rs.3,000/- under Ex P24. The correspondingentries made in the receipt scroll book Ex P25 and cash receipt book ExP26. ExP27 is the passbook of Appakutty. Ex P28 is the relevant entriesfor the deposit of Rs.10,000/- and Rs.3,000/- by P.W.7 Appukutty. In theLedger account Ex P29, there is an entry for Rs.3,000/- on 18.7.1991 later"1" was added to make it appear as Rs.13,000/- was deposited. Ex P30 isthe said manipulated entry.On 20.8.1991, P.W.7 Appakutty had depositedRs.30,000/- in his S.B.A/c No.903. In Ex P27, passbook, three entries forRs.10,000/- each has been made by the accused. The said entries are Ex P31series.But in Ex P32 scroll book, there is an entry for Rs10,000/- alone https://hcservices.ecourts.gov.in/hcservices/ finds a place and Ex P33 is the cash receipt book. Ex P34 is the entry forthe above said Rs.10,000/- in Ex P32 receipt scroll book. The entry forRs.10,000/- in Ex P33 cash receipt book is Ex P35. Under Ex P36 and ExP37, the accused has manipulated the entries of Rs.2000/- as Rs.12,000/-and a deposit entry for Rs.10,000/- was changed as Rs.20,000/-.Ex P38 isthe original counterfoil for Rs.2,000/- dated 22.8.1991 issued by theaccused. This entry has later been converted as Rs.12,000/- under Ex P37because of this manipulations in all the entries in the bank ledger, thebank has to pay Rs.30,000/- to P.W.7.4d) P.W.3 was the Officer of Bank of India, Melapallipattu Branchfrom 1991 to July 1993. According to him, when the accounts of the Saidbranch of Bank of India was checked, there were certain discrepanciesfound in the entries made in Saving Bank Account of Mr.Appakuttu(P.W.7)and accounts do not tally and it was found that some alterations in thesavings Bank Account of P.W.7 to an extent of Rs.30,000/-.Ex P29 is theattested copy of the ledger book relating to the savings Bank accountNo.903 of P.W.7. There was no corresponding corrections found in Ex P29ledger book. When it was later found out that the discrepancy of thecorrections were made in the hand writing of Mr.M.L.Balasubramaniam(theaccused herein), then Cashier of the said branch and when this wasconfronted with the accused, he had admitted that the corrections in thealterations were made by him and amounts were misappropriated by him.Thereafter, the Manager had reported the matter to the Regional Manager atCoimbatore for further investigation who had deputed P.W.2 and P.W.3 toMelpallipattu Branch for investigation and that he has also assisted P.W.2and P.W.3 for collecting relevant documents and statements from otherwitnesses and that in the investigation , it was brought to light thatseveral misappropriation have been committed by the accused. On 17.9.1990in the savings Bank account of E.R.Chandrasekaran(P.W.4) the accountNo.3043 in Ex P1 passbook of P.W.4, Ex P2 entry has been made by theaccused. Ex P6 is the pay-in-slip of loan account of P.W.5 for Rs.6,000/-.The corresponding entries are available in Ex P7, Ex P8 and Ex P9counterfoil for pay-in-slip in Ex P7 for the loan account of P.W.5 forRs.1000/- and the said entries have been made by the accused on 20.6.1991.But there was no corresponding entries found in Ex P11 bank records. ExP13 is the pay-in-slip counter foil for Rs.3,500/- for the loan amount ofThiru V.Krishnan(P.W.8). The corresponding entries are made in Ex P14 andEx P15 and also in Ex P16 ledger. The counterfoil for pay-in-slip forRs.3,500/- for the loan account of Thiru Muthusamy(P.W.9) is Ex P17. Butthere is no corresponding entry found in Ex P18 ledger. The counterfoilfor pay-in-slip for the loan account of Thiru K.Krishnan(P.W.6) forRs.10,000/- is Ex P19. But there is no corresponding entries found in ExP20, Ex P21 and Ex P22. Ex P27 is the passbook of Appakutty(P.W.7) bearingaccount No.903. There are entries for credit of Rs.10,000/- on 18.7.1991under Ex P23 and also for Rs.3,000/- under Ex P24. On 20.8.1991, there isanother entry for Rs.10,000/- on 20.8.1991 and another credit entry forRs.10,000/-. Those entries are under Exs P28 and P 31. The countrfoilfor pay-in-slip of Rs.3,000/- is Ex P24 and both in Exs P23 and P24 , the https://hcservices.ecourts.gov.in/hcservices/ entries have been made by the accused, M.L.Balasubramaniam. But there isno corresponding entries found in Ex P29 Ledger. But there is acorrections found in the ledger for the entries made in the account ofP.W.7 Appakutty. There is also overwriting while entering the amount ofRs.20,000/- in Ex P29 Ledger extract. Ex P38 is the counterfoil for pay-in-slip of Rs.2,000/- for the savings Bank Account of P.W.7 Appakutty.For the amounts mentioned above were not credited duly in the bank accountand that the investigation discloses that the accused had misappropriaedthe abovesaid amounts deposited by the customers of the bank.4e) P.W.4 E.R.Chandrasekaran is the account holder in S.B.A/c 3043 ofMelapallipattu Branch of Bank of India who would admit that Ex P1 is hispassbook and that on 17.9.1990 he has deposited Rs.4,500/- with the saidbranch of Bank of India and the said amount was received by the thenCashier(accused herein) of the Bank Thiru M.L.Balasubramaniam and that ExP2 entry in Ex P1 passbook was made by the accused and that he came toknow through the bank officials that the said amounts deposited by himwere not entered in the bank records and that he had handed over theoriginal passbook to the Regional Manager and obtained a duplicatepassbook.4f) P.W.5 Gangadharan who would depose that he had obtained a loan ofRs.2.25 lakhs from Melapallipattu Branch, Bank of India in May 1992 andthat the said loan should be repaid in half yearly instalment ofRs.12,500/- each and during December 1991, he was called upon by the BankOfficials to the Bank and on verification of the payment vouchers, it wasbrought to light that Rs.6,000/- deposited by him in the month of May 1991and another sum of Rs.1000/- deposited by him in June 1991 were notentered in the relevant scroll book and cash receipt book. P.W.5 woulddepose that Ex P6 pay-in-slip is in his own hand writing under which hehad deposited Rs.6,000/- to the Cashier of the Bank/accused and that ExP6counterfoil was issued only by the accused under his seal and signature.He would depose that on 20.6.1991 under Ex P29, he had depositedRs.1,000/- with the Bank and the accused as Cashier had received the saidamount and returned the counterfoil Ex P10 with his signature and the sealof the bank. Later he came to know from Bank officials that amountdeposited by him under Ex P6 and Ex P10 have not brought to the bankaccount.4g) P.W.6 Thiru K.Krishnan in his evidence would depose that he hadobtained jewel loan in the year 1989 from the Bank of India,Melapallipattu Branch and he had deposited Rs.10,000/- in August 1991towards said Jewel loan and the said amount was handed over to the thenCashier of the Bank viz., Thiru M.L.Balasubramaniam /accused and that ExP19 counterfoil was issued by the accused after receiving the said amountof Rs.10,000/- and that he had handed over the original counterfoil to CBIInspector. https://hcservices.ecourts.gov.in/hcservices/ 4h) P.W.7 Mr.Appakutty would depose that he is having Savings BankAccount with Bank of India, Melapallipattu Branch to which Ex P27 passbookwas supplied by the bank. In July 1991, he had deposited Rs.13,000/- withthe bank and the said amount of Rs.13,000/- was received by the thenCashier/accused of the said Bank who gave two counterfoils one forRs.10,000/- and another for Rs.3,000/- which are Exs P23 and P24respectively. Later he had deposited Rs.30,000/- with the bank and thesaid amount was collected on behalf of the bank by the thenCashier/accused who had made three entries each for Rs.10,000/- in hispassbook and in August 1991, he had deposited Rs.2,000/- with the Bankwhich was also received by the then Cashier/accused who had issued Ex P38counterfoil for pay-in-slip under which the said amount was deposited.But later he came to know that the amount deposited by him weremisappropriated by the accused and has not reached the bank.4i) P.W.8 V.Krishnan in his evidence would depose that he hadobtained a loan of Rs.25,000/- from the Bank of India, MelapallipattuBranch for his business purpose and he went to the bank along with oneD.Muthusamy to Bank of India, Melapallipattu Branch for depositing a sumof Rs.3,500/- each in May 1991 and that the said amount was received bythe then Cashier/accused. After receiving the said amount, the accusedhanded over the counterfoil of the chalan which is Ex P13 and that laterhe came to know that the amount deposited by him was not credited in therelevant ledgers of the bank. 4j)P.W.9 Thiru Muthusamy would depose that he had borrowed a sum ofRs.25,000/- as a loan from the Bank of India,Melpallipattu Branch for hisbusiness and in May 1991, he went along with V.Krishnan to deposit theinstalment due of Rs.3,500/- and handed over the cash chalan to theCashier/accused. After receiving the amount, the Cashier/accused handedover the counterfoil Ex P17. Ex P17 is the original counterfoil handed over to him to the CBI Police atthe time of investigation.4k) P.W.10 is the then Inspector of Police,CBI/ACB,Chennai who hadregistered a case in R.C.No.25/1992 on 30.6.1992 under Sections 120(B) r/w409,420,477A IPC and under Section 13(2) r/w 13(1)(c)(d) of thePrevention of Corruption Act 1988 against Thiru Sarangapani,Manager, Bankof India and Mr.M.L.Balasubramaniam, then Clerk cum Cashier, Bank ofIndia,Melapallipattu Branch and after registering the case, FIR was sentto the concern Court on 25.8.1992.Ex P39 is the First Information Report.4l) P.W.11 is the Investigating Officer. He had examined P.Ws.1 to 9and recorded their statements. He had collected Ex P40 the receipt memodated 25.9.1993 from P.W.7 Appakutty. He has also collected Ex P41 and ExP42 covering letters from the Zonal Manager, 'Bank of India'. Ex P43 isthe memo dated 24.9.1993 collected from the Manager of Bank of India. Hehas also collected Ex P44 counter foil from P.W.6 K.Krishnan and after https://hcservices.ecourts.gov.in/hcservices/ completing the formalities, he had filed the charge sheet against theaccused on 17.1.1995 under Sections 409,477A, 201 IPC and Section 13(2)r/w 13(1)(c) (d) of Prevention of Corruption Act 1988. He would furtherdepose that he has not obtained any sanction order for prosecuting theaccused since the accused had already been dismissed from service.5. When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., the accused denied his complicity with the crime.6.After going through both oral and documentary evidence let inbefore the trial Court, the learned trial Judge after getting himselfsatisfied to the fact that prima facie has been made out against theaccused and the prosecution has proved the guilt of the accused beyond anyreasonable doubt, had convicted and sentenced the accused under Section409 IPC (8 counts) to undergo three years rigorous imprisonment andslapped a fine of Rs.200/- with default sentence and convicted andsentenced the accused under Section 477 A IPC(5 counts) to undergotwo years rigorous imprisonment and pay a fine of Rs.200/- with defaultsentence and also under Section 13(2) r/w 13(1)(c) & (d) of the Preventionof Corruption Act 1988 to undergo three years rigorous imprisonment undereach section and to pay a fine of Rs.250/- with default sentence. Thelearned trial Judge has further ordered that the sentence to runconcurrently. Aggrieved by the findings of the learned trial Judge, theaccused has preferred this appeal.7.When this appeal was taken up for hearing, Mr.K.Shanker, learnedcounsel appearing for the accused, after taking the Court to variousdocuments filed on behalf of the prosecution and also elaborately arguedregarding the issues involved in the case. But ultimately the learnedcounsel would submit that he will be satisfied with the modification ofsentence. Heard the learned Special Public Prosecutor in this regard whohas no serious objection for modifying the sentence considering the plightof the accused who had faced the trial from April 1995.8.Under such circumstances, to meet the ends of justice,I am of theview that the minimum sentence prescribed under the Prevention ofCorruption Act 1988 ie., one year can be imposed on the accused instead ofthree years rigorous imprisonment under Section 13(2) r/w 13(1)(c)(d) ofPrevention of Corruption Act 1988 and also under Section 409 IPC and underSection 477 A of IPC.9.In fine, this appeal is dismissed but with the followingmodification in the sentence alone. The accused is convicted and sentencedunder Section 409 IPC to undergo one year rigorous imprisonment insteadof three years and under Section 477A IPC the accused is convicted andsentenced to undergo one year rigorous imprisonment instead of two yearsof rigorous imprisonment and under Section 13(2) r/w 13(1)(c) & (d) of thePrevention of Corruption Act 1988, the accused is convicted and sentencedto undergo one year rigorous imprisonment under each section instead of https://hcservices.ecourts.gov.in/hcservices/ three years rigorous imprisonment. The fine amount imposed by the trialcourt shall sustain. The trial Court is directed to secure the accused toserve the sentence. The sentence is to run concurrently. sgSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Principal Special Judge/Principal Special Judge for CBI Cases,Chennai2. The Special Public Prosecutor,CBI Cases, Chennai.3. The Inspector of Police, ACB/CBI Chennai.4 The Superintendent of Central Prison, ChennaiKG (co)sg 13/4/07Crl.A.No.1122 of 1998 05.04.2007