High Court · 2025

Crl.A(MD)Nos.54, 71 & 84 of 2019Section 13(2) r/w 13(1)(c) and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988seven years and to pay a fine of Rs.1,00,000/- in default to undergo three months of Simple imprisonment420 of IPCTo undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for three months3. A1, was the Branch Manager of the Indian Bank, Ariyalur from the period 02.06.2010 to 17.09.2012. A2, A3 are the partners of the M/s.Thozhan Tractors. A1, A2, A3 entered into conspiracy to cheat the Indian Bank, Ariyalur Branch and defrauded amount of Rs.36,40,115/-. A1 fraudulently sanctioned SOD of Rs.5 lakhs in favour of the firm of A2 and A3 firm without obtaining the MOD and without creating the EMI and fraudulently debited amounts 6 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019from the various accounts of the Government, Private individuals, Bank Accounts meant for different purpose and fraudulently credited into A2 and A3's account and to screen the same made the fraudulent entries in the CBS system and thereby caused loss of Rs.36,40,115/- to the bank which benefited illegal gain to A2 and A3 and hence, P.W.1 made a complaint to CBI and CBI registered a case in Crime No.RC MA1 2013 A 0003 against the appellants for the alleged offence under Sections 120-B r/w 420, 477-A of IPC and Section 13(2) r/w 13(1)(c) and (d) of Prevention of Corruption Act, 1988.3.1 After the investigation, the CBI filed a final report for the offence under Sections 120-B r/w 420, 477-A of IPC and Section 13(2) r/w 13(1)(c) and (d) of Prevention of Corruption Act, 1988. against the appellant/ accused arraying them as follows:- 1.R.Venkataramanan (A1)2.K.Murali (A2)3.A.Periyanayagasamy (A3) 7 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 20193.2 The said final report of the CBI was taken on file in C.C.No.09 of 2014. After appearance of the accused, copies of records were furnished to them under Section 207 Cr.P.C. The learned Special Judge, on perusal of records and on hearing both sides and being satisfied that there existed a prima facie case against the accused/appellants, framed charges under Sections 120-B r/w 420, 477-A of IPC and Sections 13(2) r/w 13(1)(c) and (d) of Prevention of Corruption Act, 1988, and the same were read over and explained to them and on being questioned, the accused/appellants denied the charges and pleaded not guilty and stood for trial.3.3. The prosecution, in order to prove its case, had examined 17 witnesses as P.W.1 to P.W.17 and exhibited 69 documents as Ex.P.1 to Ex.P.69 and no material objects were marked. On the side of the appellants, no witnesses were examined but two documents were marked as Ex.D1 and Ex.D2. 8 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 20193.4.The learned Trial Judge after completion of the examination of the prosecution witnesses questioned the appellants under Section 313 of Cr.P.C., by putting incriminating materials available against them in the prosecution evidence and the appellants denied them as false. A1 gave explanation that he sanctioned loan as per law and he sanctioned the loan after obtaining proper permission from the higher officers and he also obtained SOD from A2 and A3 and he alone first made complaint before the Ariyalur Branch, against number of persons relating to the irregularity but he was arrayed as accused on the basis of the enmity between himself and one Mahalingam clerk of bank. A2 and A3 gave explanation that the M/S. Thozan Tractors is a firm registered under the Society Registration Act and they had obtained SOD after execution of MOD and there was un-authorised entries in their account and they informed the same to Mahalingam staff of the bank and the bank has not incurred any loss and hence, they never initiated either civil proceeding or proceedings before DRT and they were falsely roped in the said 9 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019case. No witness was examined on the side of the appellant. But, they marked Ex.D.1 (Encumbrance Certificate) and Ex.D.2 (Title Deed) to show that they had already made MOD. The learned trial judge, after considering the evidence passed the impugned judgment dated 12.10.2018 in C.C.No.09 of 2014 and convicting and sentencing the accused.3.5. Challenging the same, the appellants preferred these appeals. 4. Mr.M.Subash Babu, the learned Senior counsel for A2 and A3 and Mr.R.Babu Jaganathan, the learned counsel for A1 made the following submissions:-4.1. The learned trial Judge has not properly considered Ex.D.1 and Ex.D.2 and erroneously held that A1 sanctioned the SOD of Rs.5 lakhs without obtaining MOD. 10 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 20194.2.The learned trial Judge failed to see that the SOD was not marked to consider the specific plea of the A1 that he has sanctioned SOD after obtaining permission from the higher officials. 4.3. The learned trial Judge failed to consider that the prosecution has not come forward with specific quantum of amount of misappropriation and hence, their case of the misappropriation lost its credibility. 4.4. The learned trial Judge also failed to see that there was suppression of earlier complaint and the appellants are wrongly roped in this case. 4.5. The learned trial Judge further failed to draw adverse inference against the prosecution for non-production of CCTV footage to prove the case of the fraudulent transaction made by A1 under the Core Banking System (CBS). 11 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 20194.6. The bank has not suffered any loss and that is why, the bank has not initiated any recovery proceedings and hence, the case of the prosecution that the appellants had misappropriated the bank fund is not proved in accordance with law. 4.7.The learned trial Judge failed to consider the explanation furnished by the appellant during the 313 Cr.P.C., questioning which are supported by the materials elicited during the course of evidence of the prosecution witnesses. 4.8.The learned trial Judge also failed to consider even as the Investigating Officer admitted that A1 has not forged the signature of any account holder and his signature was also not sent to the FSL.4.9. The fraudulent debits and fraudulent credits in the account of A2 and A3 from the various accounts were not proved through the legal evidence. 12 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 20194.10. None of the affected persons have made complaints and in the said circumstances, complaint made by the bank officials is not maintainable. 4.11.The witnesses were threatened by the CBI and they did not depose voluntarily and hence, the learned Judge committed error in relying the said evidence recorded under duress. 4.12.According to the prosecution, 109 instances of irregularities committed by A1, but the registration of FIR is only relating to the 9 transactions of A2 and A3 which amounts to arbitrary exercise of power and the same is offending the fundamental right of fair trial. 4.13.The case was registered against A1 at the instigation of one Mahalingam and the same was not properly considered by the learned trial Judge. 13 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 20194.14.The counsel also relied the following precedent and seeks the acquittal:-In the case of Aneeta Hada v. Godfather Travels & Tours (P) Ltd., reported in 2012 (5) SCC 6615. Submission of the learned Special Additional Public Prosecutor:5.1.Mr.C.Muthusaravanan, learned Special Additional Public Prosecutor would submit that the defence case that SOD was made after the MOD is not correct. The transaction was made much prior to the creation of MOD. On the date of the fraudulent transaction, the property was already mortgaged with some other bank. Therefore, he seeks to reject the said contention. 5.2.He would also submit that it is a well planned bank fraud case and the same was clearly proved by the evidence, more particularly, on the basis of the documentary evidence. All the documents clearly proved the fraudulent debits and fraudulent credits and withdrawal of the said amount. 14 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 20195.3.He would also further submit that accused neither disputed the said document nor disputed the genuineness of the said document. They have also furnished false explanation during their questioning under Section 313 Cr.P.C., 5.4. He would also submit that the lapse on the part of the investigating agency is not a ground to acquit the accused when the prosecution clearly established the charged offence against the appellant through the evidence and in support of his contentions he relied the judgment of the Hon'ble Supreme Court reported in (2012) 7 SCC 699. 5.5. He would also submit that the bank suffered a lot and hence, the authorities preferred a complaint. Therefore, the contentions of the appellants in the absence of the complaint from the affected parties, initiation of proceedings is illegal deserves to be rejected. 15 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 20195.6. The variation in the quantum of amount of misappropriation is immaterial when the prosecution produced adequate document to prove the misappropriation of Rs.36,40,115/-.5.7. The appellants never made any payment till date and hence, they deserve for proportionate punishment and he relied upon the judgment of the Hon'ble Supreme Court in the case of CBI v. Jagjit Singh, reported in 2013 10 SCC 686 and hence, he seeks for the dismissal of the appeals. 6. This Court considered the submissions of the learned Senior counsel and the learned counsel appearing for the appellants and the learned Special Public Prosecutor appearing for the respondent and perused the materials available on record and the impugned judgments and the precedents relied upon by them.7. The question arises in these appeals is whether the prosecution proved the charges framed against the appellants beyond reasonable doubt to sustain the conviction and sentence passed against the appellants? 16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 20198. The appellants are arrayed as accused in the C.C.No.9 of 2014 on the file of the II Additional District Judge for CBI Cases, Madurai. The details of the array of the accused are as follows:-Appeal NumberRank of the AccusedCrl.A(MD)No.84 of 2019A1Crl.A(MD)No.54 of 2019A2Crl.A(MD)No.71 of 2019A3 8.1. The rank as mentioned in C.C number is being referred in these appeals for the better appreciation of the facts of the case.Further, in this case, it is relevant to mention the following abbreviation of the code word of the Bank:-Code WordAbbreviationSODSecured Over draftOSBICOut station Branch Instruments for collection AccountMDLManager's Discretionary LimitBGLBank General LedgerHPHeads ParkingEVVR checkingElectronic Voucher Verification ReportKVVT Disbursement AccountKaliangar Veetu Vasathi Thittam THADCO 17 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019SGSY Scheme(Mahalir Thittam)Swarna Jothi Gramma Sweraja Yojana OMPCOPSOriyur Milk Producers Co-operatives Society8.2.A1 was the Branch Manager of Indian Bank, Ariyalur Branch. A2 & A3 were holding the account bearing the No.A/C 987122947 in the name of M/s.Thozan Tractors. A1, A2, A3 conspired together to defraud the bank amount and in furtherance of the conspiracy, A1 sanctioned SOD to the said firm without obtaining the proper documentation and collateral security. In the said improper sanction of SOD, A1 fraudulently got detailed particulars from various accounts of other persons without their knowledge by making entries of fraudulent debits and fraudulent credits in the statement of accounts of A2 and A3 and made false entries in the CBS system and the said amount had been utilised by A2 and A3 towards their liability.8.3.In sum and substance, A1 being a Manager of Indian Bank, Ariyalur Branch, had abused his official position and 18 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019dishonestly and fraudulently debited unconnected government accounts and individuals account to the tune of Rs.36,40,115/- and credited the said debited proceeds to A2, A3 SOD AC No.987122947 and cheated the bank by causing wrongful loss to the bank and making wrongful gain to themselves and thereby, they committed the offence under Sections 120B, r/w 420, 477A IPC and Section 13(2) r/w 13(1)(c) & (d) of Prevention of Corruption Act, 1988.9. Proof of sanctioning of SOD in favour of A2 and A3 M/s.Thozan Tractors without MOD:-10.1. The prosecution examined P.W.1 , P.W.2, P.W.5 and P.W.14 to prove the fact that SOD facility to the limit of Rs.5 lakhs was sanctioned by the first accused in favour of A2 and A3's firm M/s.Thozan Tractors in the Account No. 987122947 without obtaining proper documentation and creating EMI. P.W.1 deposed as follows:-me;j epWtdj;jpw;F tq;fp Nkyhsh; jd; mjpfhuj;ij gad;gLj;jp me;j epWtdj;jpw;F Ugha; 19 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019Ie;J yl;rj;ij OD sanction nra;jpUe;jhh;. NkYk;> nfhLj;j fldpw;F mlkhdk; EMI vJTk; Vw;gLj;jg;gltpy;iy.9.2. Remaining witnesses namely, P.W.2, 5 & 14 also affirmed the said fact. A2 and A3 produced Ex.D.1 and Ex.D2 to prove the registration of equitable mortgage with creation of EMI. The said document is created only on 17.04.2012. Whereas, SOD facility was provided much earlier I.e., on 11.10.2011. Even prior to that the SOD facility of Rs.5 lakhs was sanctioned. From Ex.D.1 and Ex.D.2, it is found that even prior to the registration of the equitable mortgage in favour of Indian Bank, Ariyalur Branch, the said property was mortgaged with the REPCO Home Finance, Trichy on 08.08.2011. Before the said mortgaging of property with REPCO Home Finance, the said property already had been mortgaged with a co-operative bank. Therefore, it is clear that A1 sanctioned SOD to A2 and A3 without obtaining collateral security. Therefore, the prosecution clearly proved beyond reasonable doubt the basic fact of the case that accused No.1 sanctioned SOD amount of Rs.5 lakhs by misusing his power in 20 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019fraudulent manner. 10.Proof of fraudulent debits and fraudulent credits:-According to the prosecution, totally 9 fraudulent credits to the tune of Rs.36,40,115/- from various accounts were made into the SOD account number of the M/s.Thozan Tractors, operated by A2 and A3. Among the various accounts, two accounts are maintained by the Government, two accounts were private accounts and three accounts were maintained by the Branch for different purposes. The details of the fraudulent debits are as follows:-Name of the account holderAccount NumberDate of CreditAmount illegally credited in the M/s.Thozan Tractors A/C 987122947Details of the Government Bank AccountsMagalir Thittam Project OfficeA/c 842690697 20.06.2012Rs.9,85,000/-OSBIC A/c 10.12.2011Rs.4,60,000/- 21 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 201998806016950THADCO SubsidyA/c 89954140209.06.2012Rs.2,50,000/-Details of the Bank AccountsIntermediary Parking A/c 85100126209.06.2012Rs.2,50,000/-OMPCOPSA/c 6028364113Current A/c withSBI (Mirror Account)A/c 9882301695009.01.2012 Rs.3,30,000/-Details of the private AccountsWegha BatteriesA/c 97940922628.10.2011 Rs.2,00,000/-Ashok KumarHis 3 dividend warrants of HDFC Bank are transferred Rs.2,25,116.37TotalRs.36,40,115/-11. To prove the said fraudulent entries in the A2 and A3(M/s.Thozan Tractors Account, the prosecution collected corresponding documents namely, statement of accounts, and the same were marked through the prosecution witnesses. The 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019account statement of the A2 and A3 M/s.Thozan Tractors contains 9 fraudulent credits on various dates. A1 is the responsible officer on the date of the said entries. The documents clearly disclosed that he only made such fraudulent entries. The corresponding fraudulent debits are also seen in the corresponding account statement of above Government accounts, 2 private accounts and 5 accounts of the bank. The said credited amounts were also utilised by A2 and A3 i.e., M/s.Thozan Tractors had issued 7 DDs in favour of TAFE and the receipt of the same also has been acknowledged. The competent officer from the TAFE Company/P.W.6 also examined to prove the same and he deposed that they received the amount during the relevant period through the DDs and the said DDs are marked as Ex.P38, Ex.P.39, EX.P40, EX.P41, EX.P42 and Ex.P43.11.1.From the following documents, it is clear that there were fraudulent credits in the accounts of the M/s.Thozhan Tractors from two private persons accounts. 23 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019DatesAccountsTransactionsRelevant Exhibits28.10.2011Wegha BatteriesRs.2,00,000/-Ex.P.13 Ex.P.26 Vol.No.II page Nos.190, 193 28.10.2011B.Ashok KumarRs.98,705/-Rs.24,676/-Rs.1,01,734/-Ex.P.15 11.2.From the following documents, it is clear that there were fraudulent credits in the accounts of the M/s.Thozhan Tractors from the two Government accounts:-DatesAccountsTransactionsRelevant Exhibits20.06.2012Project Officer, Mahalir ThittamRs.9,85,000/-Ex.P.8Ex.P.9 Ex.P.1209.06.2012District Manager THADCO A/cRs.2,50,000/-Ex.P.14 11.3. From the following documents, it is clear that there was fraudulent credits in the accounts of the M/s.Thozhan Tractors from the A1 branch accounts:- 24 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019DatesAccountsTransactionsRelevant Exhibits10.12.2011 OSBICRs.4,60,000/-Ex.P.1031.12.2011 OSBICRs.60,000/-Ex.P.4 Ex.P.10 19.01.2012CA With SBIRs.3,30,000/-Ex.P.16 Ex.P.10 17.04.2012CA with SBIRs.7,50,000/-Ex.P.10 11.4. The said documents were prepared during the course of the regular banking operation and hence, the court can presume the existence of the said fact under Section 114(e) of the Evidence Act unless the accused adduced rebuttal evidence. In this case, the accused neither adduced any evidence nor elicited any evidence during their cross examination of the prosecution witness to rebut the said presumption. Further, During the questioning under Section 313 Cr.P.C., the accused neither denied the same nor disputed the genuineness of the said documents. Therefore, the prosecution clearly proved the fraudulent debits from the above said 9 accounts illegally and fraudulent credits in the account of 25 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019M/s.Thozan Tractors and the said credit amount was utilised. 12. The prosecution also examined P.W.15 to prove the illegal transfer of Rs.9,85,000/- from the account of the Magalir Thittam on 20.06.2012 in to the account of A2 and A3. P.W.15 deposed that he was the Assistant Project Officer of Magalir Thittam. The said scheme is called 'Swerna Jothi Gramma Swaraja Yojana (SGSY)' and to operate the said scheme, account was opened in A1's bank and the account number is 842690677. A1 had not credited the said scheme amount in the said account but credited the same in the A2 and A3's account and he produced the document Ex.P.12. A2 and A3 have not cross examined the said witness. Even though A1 cross examined the said witness nothing was elicited to disprove the said fact of transfer of amount of Rs.9,85,000/- from the said account into A2 and A3's account. Therefore, the prosecution clearly proved that A1 transferred the said amount fraudulently into the account of A2 and A3. 26 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 201913. On 28.10.2011, A1 debited a sum of Rs.2,00,000/- from the SME loan account No.979409226 of Wegha Batteries and fraudulently transferred to the SOD A/c of M/s.Thozan Tractors operated by A2 and A3. To prove the illegal transfer of amount of Wegha Batteries, the prosecution examined P.W.12. He deposed that he was running a Wegha Batteries at Keelapalur Village and availed machinery term loan to the tune of Rs.19,70,000/- and open cash credit loan of Rs.6,25,000/- at the time A1 was working as the Manager of the said Bank. He has not received Rs.1,70,000/- from the machinery term loan account and he demanded the same. But, A1 without making the said payment of amount evaded from answering. Subsequently, he gave the statement of accounts and he came to know that Rs.2,00,000/- from his loan credit account had been fraudulently transferred into the account of M/s.Thozan Tractors. He further deposed that he had no contact with the said M/s.Thozan Tractors and he had not instructed A1 to transfer the same. He has not applied any loan for Rs.2,00,000/- and record was created as if he had applied for the loan of Rs.2,00,000/-. 27 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019Therefore, he gave a complaint on 15.11.2012 and the same was marked as Ex.P.26. A2 and A3 have not cross examined the said witness. Even though A1 cross examined the said witness nothing was elicited to disprove the said fact of transfer of amount of Rs.2,00,000/- from the said account into A2 and A3's account. Further, the loan application Ex.P.27 was marked and in the said application, P.W.12's signature was not found Therefore, the prosecution clearly proved that A1 fraudulently created the loan documents and debited the amount of Rs.2,00,000/- in the loan account of Wegha Batteries and fraudulently transferred the said amount of Rs.2,00,000/- from the Wegha Batteries account into the account of A2 and A3.14. At the relevant point of time, A1/Branch Manager of Indian Bank, acted as a clearing agent of the HDFC Bank. He sent 3 dividend warrants of HDFC Bank totalling Rs.2,25,116.37 issued in favour of one B.Ashok Kumar, who had account in SBI, Kaddur Branch and instead of releasing the said fund to the SBI, Kaddur 28 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019Branch, A1 diverted the said amount and credited the said dividend warrants amount of HDFC belonged to B.Ashok Kumar into the account of M/s.Thozan Tractors. P.W.13, the Bank Manager of the said SBI,Kaddur Branch, deposed that B.Ashok Kumar was the customer of the said branch and CBI officers asked to produce the records relating to the said B.Ashok Kumar's deposit and paying slips and statements of account. He produced Ex.P.15. From Ex.P.15, it is clear that the amount was illegally transferred to M/s.Thozan Tractors on 28.10.2011. Therefore, the prosecution clearly proved that A1 illegally transferred the amount of B.Ashok Kumar into the account of M/s.Thozan Tractors. 15. Discussion on the defence:-A1 offered the following explanation during the course of questioning under Section 313 Cr.P.C.,:- A1-R.Venkata Ramanan:Nfs;tp: ,tt;of;F rk;ge;jkhf VNjDk; $wpf;nfhs;s Ntz;Lkh?Gjpy; : tq;fp tpjpfspd;gb ghpth;j;jidfs; ele;jd. 29 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019Njhod; buhf;lh;]; epWtdj;jpw;F DGM kNdhfud; SOD tpz;zg;gj;ij; rhq;rd; nra;jhh;. vd;dhy; SOD njhiff;F nrhj;ij mlkhdk; ngwg;gl;L kD nra;ag;gl;lJ. mYty; Ntiyahf ehd; ntspNa nry;Yk; NghJ tq;fp Copah;fs; jpdf; fzf;if Kbj;J ,J jtwhd vd;lhp. gpd;G rhp nra;ag;gllJ. ehd; tq;fp cah; mhpfhhpfspd; cj;jutpd; Nghpy; mhpaYhh; Fw;wg;gphptpy; Gfhh; nfhLj;Njd;. filrpapy; Fw;wkw;w vd;id tof;fpy; Nrh;j;J tpl;lhh;. 15.1.The prosecution marked various circulars under Ex.P.18 to Ex.P.20 to show that A1 had not acted as per the requirement. He flouted all the guidelines and the procedures and sanctioned SOD without obtaining MOD from A2 and A3 and without even ccreating EMI, made fraudulent credits in the account of A2 and A3 and allowed A2 and A3 to divert the said fund of Rs.36,40,115/-. Therefore, there was loss to the bank and illegal gain to A2 andA3. Hence, his explanation that he acted as per the norms cannot be accepted. Further, his case that he had obtained permission from the higher officers is without substance and materials. He has not produced any material to prove the same. On the other hand, he pleaded to draw adverse inference against the prosecution for non-production of the SOD. As per the 30 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019Prevention of Corruption Act, the accused has every right to produce the defence document and even to summon the said document. But, he failed to do so. After making the all fraudulent activities, in order to save his skin, he made a complaint against his subordinates and he escaped from the residence. From the collected materials, it is clear that he not only used the password of P.W9 in his absence and fraudulently transferred various amounts and also in order to screen the same, he had made false entries in CBS system. To prove the said fact, the prosecution examined the bank officials and marked various reports through the said bank officials. P.W.1, 2, 5, 14 have cogently deposed the above fact. Apart from that, Ex.P.32 was marked on the side of the prosecution in which, he pleaded guilty in the department proceedings by admitting the above fraudulent act. The counsel for the appellant made a submission on the basis of the said document to show that the prosecution has not come forward with the correct amount of misappropriation. There were different amount mentioned in Ex.P.32 and the FIR and final report. The 31 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019learned Special Public Prosecutor in this aspect correctly submitted that the total defrauded amount has been mentioned in Ex.P.32 and the amount relating to the A2 and A3 is only Rs.36,40,115/- whether it is Rs.36,40,115/- or more is immaterial when the prosecution clearly proved the fraudulent act of A1 in making the fraudulent debits and fraudulent credits. Therefore, the defense plea of A1 cannot be accepted. 16. A2, A3 made the following explanation during the course of questioning under Section 313 Cr.P.C,.:- They availed the SOD only upon execution of MOD and they produced Ex.D.1 and Ex.D2. They were not aware of the transaction made in their accounts. In their account, sometimes extra amount was credited and sometimes without their knowledge the amount was deducted and hence, they made a complaint to the clerk Mahalingam. They did not cause any loss to the bank. The bank authority neither initiated civil proceedings nor initiated any proceedings before the DRT. They are falsely roped in this case without any material instead of arraying the proper persons. 32 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 201917.The said explanation deserves to be rejected in limine. As discussed earlier, they made the MOD only on 17.04.2012 much after the A1 accorded sanction of SOD on 14.10.2011. They utilised the said amount in their account as a result of the fraudulent credits by making the payment towards their liability to TAFE Company. They have not even taken any steps to repay the said amount. Therefore, they made false explanation before the trial Court during the questioning under Section 313 of Cr.P.C., and the same is additional circumstance to presume the guilt of A2 and A3. 18. The learned counsel for the appellants submitted that there was an earlier complaint relating to the said transaction and the same was suppressed and hence, they seek for the acquittal. P.W.2 clearly deposed that after the fraudulent act, a complaint was laid on 20.06.2012 before the Ariyalur District Crime Branch. Subsequently, as per instruction of the Head Office, complaint was made to CBI and CBI registered a case. The Ariyalu District Crime 33 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019Branch never registered any case and hence, there is no suppression. 19. The counsel also submitted that the prosecution failed to produce the CCTV footage to prove the factum that the fraudulent transaction was committed by A1 in Core Banking System. P.W.8 clearly deposed that his password was misused by A1 and his evidence also corroborated with false entries and the fraudulent credits in the account of A2 and A3. Apart that A1 also admitted his guilt before the Department Proceedings and the said document was also marked under Ex.P.32 and he also relied the same for his defence and hence the non-production of CCTV footage is immaterial and more particularly, when abundant evidence is in existence to prove the charged offences. 20. The learned counsel for the accused/defence also argued that there is variation in the fraudulent transfer of amount. This Court during the course of the addressing the explanation of A1 in 34 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019the above stated paragraph Nos.18 and 18.1 made a detailed discussion. Dehors the same, at the cost of the repetition, this Court again makes a discussion. Under Ex.P.4, the inspection report it is stated that Rs.82,67,775.37/- was misappropriated. Under Ex.P.1 it is stated that Rs.1,80,08,459/- was misappropriated. Under Ex.P.8 it is stated that Rs.1,54,08,459/- was misappropriated. P.W.17, Investigation Officer also deposed that under Ex.P.32, the misappropriated amount was mentioned as Rs.1,42,15,506/-. But in the final report it is diluted to the tune of Rs.36,40,115/-. Therefore, they seek acquittal. The said submission is misconceived one. As far as this case is concerned 9 fraudulent transactions were made by A1 with A2 and A3 and also sanctioned the SOD of Rs.5 lakhs without obtaining the MOD and creating the EMI. Therefore, the CBI filed the final report relating to the extent of the amount of Rs.36,40,115/-. Misappropriation of even a single rupee is an offence. Making fraudulent debits, fraudulent credits and diversion of the fraudulent credited amount of Rs.36,40,115/- itself deserve conviction and suitable punishment. Therefore, this 35 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019Court declines to accept the said submission. 20.1. A1 made fraudulent debits and fraudulent credits in the account of A2 and A3 from the various accounts, namely, Wegha Batteries, B Ashok Kumar, Project Officer, Mahalir Thittam, District Manager THADCO, OSBIC and CA With SBI. The fraudulent credit amount was diverted to pay the liability of A2 and A3 and the said document was also produced. Therefore, the conspiracy to cheat the bank and defraud the said amount is clearly proved and the learned Special Public Prosecutor, rightly relied the judgment of the Hon'ble Supreme Court reported in AIR 1957 SC 304 and in the case of Tulsi Ram v. State of U.P. reported in AIR 1963 SC 666.21. The counsels made the another submission that the aggrieved persons namely, the 9 account holders have not preferred any complaint and only motivated complaint was preferred by the bank officials at the instigation of Mahalingam a 36 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019staff of bank is not legally valid one. The motive alleged against the Mahalingam is without any material. Therefore, the said submission also has no leg to stand.22. The learned Senior Counsel vehemently contended that the prosecution against A2 and A3 without arraying M/s.Thozan partnership firm is not legally maintainable on the basis of the judgment of the Hon'ble Supreme Court of India in the case of Aneeta Hada v. Godfather Travels & Tours (P) Ltd., reported in 2012 (5) SCC 661 The said submission also misconceived one. During the course of the trial, they never raised said point and no question was asked to any of the prosecution witnesses. The said principle is not applicable to the partnership firm. There is difference between the partnership firm and Company. Partnership is separate entity and each partner is liable to pay the liability of the partnership firm. Apart from that, A2 in his explanation under Section 313 of Cr.P.C., stated as follows: ehDk; vdJ gq;Fjhuh; nghpaehafrhkpAld; ,ize;J fle;j 2010-k; tUlk; 37 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019Njhod; buhf;lh; vd;w epWtdj;ij Kiwg;gb Societies Registration Act-y; Firm Mf muR mDkjpAld; gjpT nra;J tafe Tractor-y; ,lkpUe;J (Agency) ngw;W elj;jp te;Njhk;. Nkw;gb Njhod; buhf;lh; epWtdj;jpd; tuT nryT fzf;if mhpaYhh; ,e;jpad; tq;fpapy; elg;G fzf;F Jtq;fp tuT nryT nra;J te;Njhk;. From that, it is not clear, Thozan Tractor is registered either under the society registration Act or partnership Act, that apart, evidence on record, clearly disclosed that A2 and A3 alone utilise the defrauded amount. The principle applicable to the 142 of the Negotiable Instruments Act, is not applicable to the present case of the fraudulent transaction and intentional defrauding of bank amount and the same has been clarified by the Hon'ble Supreme Court in the case of Bijoyukumar Mani Vs. Paresh Manna and another reported in 2024 SCC Online 3833. Therefore, the said submission of the Senior Counsel that without arraying the Thozan partnership firm prosecution of A2 and A3 is not legally maintainable cannot be accepted. 38 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 201923. Conclusion on conviction:-In view of the above discussion, A1 is proved to have sanctioned SOD of Rs.5 lakhs in the name of A2 andA3 M/s.Thozan without obtaining MOD and without creating EMI and fraudulently credited amount of Rs.36,40,115/- in the aid account and A2 and A3 diverted the said amount for their discharge of liability by way of DD transfer in favour of the TAFE Motors and thereby, they defrauded the bank amount and obtained illegal gain of Rs.36,40,115/- and it is relevant to extract the following portion of the judgment of the Hon'ble Supreme Court in the case of Chittaranjan Shetty v. State, reported in 2015 15 SCC 569 at page 57524. The crucial fact that needs to be determined is whether the appellant, with dishonest intention, abused his position in order to obtain for DW 1, the said pecuniary advantage. It is our considered opinion that, in the present case, there is sufficient evidence on record to prove that the appellant was acting with a dishonest 39 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019intention. The terms and conditions of the loan granted to the appellant categorically state that the overdraft facilities could be utilised only for the purpose of meeting working capital requirements and for furnishing performance guarantee in favour of the said Corporation and the same could not have been utilised for payment of the debt owed by Accused 2 to DW 1. The courts below have relied on the testimony of PW 18 to conclude that the appellant knowingly and wilfully disregarded the objections of PW 18 and permitted Accused 2 to divert funds from the overdraft facility towards payment to DW 1 and that this fact is proof of dishonest intention on the part of the appellant. We concur with the courts below in this regard. The testimony of PW 18 has been corroborated by the testimony of the Sub-Manager of Karnataka Bank (PW 9) who has stated that a cheque of Rs 3,60,000 was deposited in the current account of DW 1 as well as that of the Senior Manager, Corporation Bank, Car Street, Mangalore (PW 10). 40 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019Hence, this Court holds that the prosecution has successfully proved charged offence beyond reasonable doubt. Therefore, this Court concurs with the finding of the learned trial Judge in convicting the appellant as stated above. 24. Question of sentence:The prosecution proved the case of the defraud of amount of Rs.36,40,115/-. The bank officials immediately on seeing the fraudulent credits demanded A2 and A3 to make repayment. Till date, there is no repayment. They are keeping the huge amount of Rs.36,40,115/- which had been allotted to give various women groups under the scheme of Mahalir Thittam, Welfare Scheme under THADCO etc., They shipponed off of the said amount in the year 2011 and illegally enriched themselves with the said amount and therefore, they do not deserve any reduction of punishment and they deserve proportionate punishment. The learned trial judge has considered the same and imposed proper punishment. Hence there is no ground to reduce the sentence of imprisonment. 41 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 201925. In result, the appeals deserve to be dismissed and accordingly, dismissed by confirming the conviction and sentence of imprisonment imposed in the C.C.No.09 of 2014, dated 12.10.2018 on the file of the II Additional District Court for CBI Cases, Madurai. The learned trial Judge is hereby directed to secure the accused to undergo the remaining period of sentence of imprisonment. 04.03.2025NCC : Yes / No Index : Yes / NoInternet : Yes / NosbnTo1. The II-Additional District Judge, II Additional District Court for CBI Cases, Madurai. 2. The Additional Superintendent of Police, CBI:ACB, Chennai.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 4.The Section Officer, Criminal Section (Records), Madurai Bench of Madras High Court, Madurai. 42 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.54, 71 & 84 of 2019K.K.RAMAKRISHNAN, J.sbn Judgment made inCrl.A(MD)Nos.54, 71 and 84 of 201904.03.2025 43