Criminal Appeal No. 692 of 2012 · The High Court
Case Details
- 1 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO. 692 OF 2012 C/W CRIMINAL APPEAL NO. 640 OF 2012 CRIMINAL APPEAL NO. 716 OF 2012 IN CRL.A No. 692/2012 BETWEEN: C. LOKESHA S/O CHIKARANGAIAH, AGED ABOUT 50 YEARS, ASSISTANT, M/S NEW INDIAN ASSURANCE CO. LTD., HASSAN BRANCH, NOW RESIDING AT JAGADAMBA STREET, VIDYANAGAR POST, SHIMOGA - 577 203. …APPELLANT Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA (BY SRI. M.B. RAVIKUMAR, ADVOCATE) AND: STATE BY INSPECTOR OF POLICE, CBI/ACB BELLARY ROAD, BANGALORE. …RESPONDENT (BY SRI. P. PRASANNA KUMAR, ADVOCATE) THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE DATED 11.06.2012 IN SPL. C.C.NO.231/2010 PASSED BY THE XXXII ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE - 2 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 CBI CASES, BANGALORE-CONVICTING THE FOR APPELLANT/ACCUSED NO.3 FOR THE OFFENCE P/U/S. 409, 420, 477(A) OF IPC AND SEC. 13(1)(C) AND (D) R/W SEC. 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988. THE APPELLANT/ACCUSED NO.3 SENTENCED TO UNDERGO S.I. FOR ONE YEAR FOR THE OFFENCE P/U/S.409 OF IPC. IN CRL.A NO. 640/2012 BETWEEN: SMT. A SHEEJA, W/O RADHAKRISHNA NAIR, AGED ABOUT 46 YEARS, SENIOR ASSISTANT, R/AT M/S NEW INDIA ASSURANCE CO. LTD., HASSAN BRANCH, (ON DEPUTATION FROM MADIKERI BRANCH) AND ALSO AT NO.B-8, VIKALT APARTMENTS, NO.92, INDRAPRASTHA EXTN, PATHATHGANJ, NEW DELHI - 92. ...APPELLANT (BY SRI. G. JAIRAJ, ADVOCATE) AND: STATE BY INSPECTOR OF POLICE, C.B.I/ACB, BANGALORE. ...RESPONDENT (BY SRI. P. PRASANNA KUMAR, ADVOCATE) THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:11.6.12 PASSED BY THE XXXII ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES AT BANGALORE IN SPL.C.C.NO.231/10-CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S. 409, - 3 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 420, 477(A) IPC AND SEC.13(1)(c)AND (D) R/W 13(2) OF PREVENTION THE APPELLANT/ACCUSED NO.1 SENTENCED TO UNDERGO SI FOR ONE YEAR FOR THE OFFENCE P/U/S.409 OF IPC. CORRUPTION ACT. OF IN CRL.A NO. 716/2012 BETWEEN: SRI. N.H. RANGASWAMY AGED ABOUT 42 YEARS, S/O LATE HALGAIAH, ASSISTANT, M/S NEW INDIA ASSURANCE COMPANY LIMITED, HASSAN BRANCH. PERMANENT ADDRESS: NO. 301, VIVEKANAGAR, NEW GANAPATHI TEMPLE, HASSAN
Legal Reasoning
(BY SRI. LOKESHA D.K, ADVOCATE) AND: STATE BY INSPECTOR OF POLICE C.B.I./ACB, BANGALORE ...APPELLANT (BY SRI. P. PRASANNA KUMAR, ADVOCATE) ...RESPONDENT THIS CRL.A. FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF RENDERED ON THE FILE OF THE XXXII ADDL. CITY CIVIL AND SESSIONS JUDGE, AND SPL. JUDGE FOR CBI CASES, BANGALORE C.C.NO.231/2010- DATED CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 409, 420, 477(A) OF IPC AND SECTION 13(1)(c) AND (d) R/W SEC.13(2) OF THE PREVENTION OF 11.06.2012 SPL. IN - 4 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 IS CORRUPTION SENTENCED TO UNDERGO S.I. FOR 1 YEAR FOR THE OFFENCE P/U/S 409 OF IPC. APPELLANT/ACCUSED ACT. THE THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.M.B.Ravikumar, Sri.G.Jairaj, Sri.Lokesh D.K., learned counsels for the appellants and Sri.P.Prasanna Kumar, learned counsel for the respondent. 2. Appellants are accused Nos.1 to 3 in Spl.C.C.No.231/2010 dated 11.06.2012 on the file of XXXII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore (CCH.34) who has suffered an order of conviction for the offences punishable under Section 409, 420, 477A of IPC and Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced as under: “On being required to submit their say on the question of sentence, accused Nos.1 to 3 submits as under: - 5 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 They have already faced the trial for long period, having regard to nature of the offence the period they undergone the trial lenient view may be taken. On hearing the accused,having regard to the nature of the offence, the quantum of the amount in connection with which the offence has committed, the following final sentence is passed: 1. The accused No.1 to 3 are convicted and sentenced to undergo simple imprisonment for one year for the offence punishable under Section 409 of IPC. 2. The accused Nos.1 to 3 are convicted and sentenced to undergo simple imprisonment for one year for the offence punishable under Section 420 of IPC and shall pay fine of Rs.5,000/- each and in default of they shall undergo simple imprisonment for 6 months. fine, 3. The accused Nos.1 to 3 are convicted and sentenced to undergo simple imprisonment for one year for the offence punishable under Section 477A of IPC and shall pay fine of Rs.5,000/- each and in default of fine, they shall undergo simple imprisonment for 6 months. 4. For the offence punishable under Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act, 1988, the accused No.1 to 3 shall undergo simple imprisonment for 1 years and shall also pay fine of Rs.5,000/- and in default of payment of fine, he shall undergo simple imprisonment for 6 months.” 3. Brief facts of the case which are utmost necessary for disposal of the appeal are as under: 3.1. Appellants have been charge sheeted by CBI for the offences punishable under Section 409, 420, 477A of - 6 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 IPC and Section 13(1)(c) and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Basic facts which lead to filing of the charge sheet against the appellants for the aforesaid offences reveal that accused No.1 was a public servant working as Senior Assistant in New India Assurance Company Limited, Hassan (hereinafter, NIAC for short) during the period of 27.07.2006 to 22.08.2008 has issued and cancelled three motor vehicle insurance policies as under: Sl. No. No. Policy and date of issue Name of the person insured Vehicle number insured Premiu m in Rupees Endorsement No. and date of cancellation 1. 67240131060 2000011827 dated 17.08.2006 2. 67240131060 200002955 dated 08.11.2006 Azeema TN-58- H-6988 1375 Rajarathinam TN-74- Y-2748 6111 3. 67240131060 20002962 dated 08.11.2006 CMC Nursery Primary School TN-69- Z-5677 4087 672401310602 82000181 dated 17.08.2006 672401310602 8200314 dated 08.11.2006 672401310602 82000315 dated 08.11.2006 3.2. While issuing such insurance policies, she said to have used her login-id and then necessary premium - 7 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 was collected in a sum of Rs.11,573/- but did not account the same to NIAC Limited. It is also noted that two more policies were issued as under wherein also similar entries Vehicle number insured Premiu in m Rupees Endorsement No. and date of cancellation were made: Sl. No. Policy No. and date of issue 1. 67240131060 200003029 dated 10.11.2006 Name of the person insured G.S. a. Thulasi Prasad b. nazar Eba c. ar Pasha Maz a. KA-25- 1156 5702 b. KL- 21-F- 2709 c. KL- 02-F- 2709 2. 67240131060 200002097 dated 09.09.2006 a. Smt.Mary Philomina a. KA-09- 2417 5018 b. S.A.Khan b. TN-74- B-5714 a. 6724013 1060282 000321 dated 10.11.2 006 b. 6724013 1060282 000322 dated 10.11.2 006 c. 6724013 1070282 000030 dated 25.04.2 006 a. 6724013 1060282 00223 dated 09.09.2 006 b. 6724013 0602820 0 - 8 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 3.3. Further, accused No.2 while functioning as public servant in the capacity of assistant, NIAC Limited during the period of 2005 and 2006 has fraudulently issued and cancelled following motor vehicle insurance policy: 3.4. Likewise, Lokesh working as public servant in the capacity of Assistant in NIAC Limited has also issued and cancelled following issues and did not account the premium amount so also. 3.5. All these factors were brought to the light and complaint came to be lodged and after detailed investigation, the investigation officer filed charge sheet for the aforesaid offences. Charge sheet materials would include issued and cancelled insurance policies and relevant documents in that regard apart from oral statement of persons who are lending support to the issuance and cancellation of the polices. - 9 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 4. On receipt of the charge sheet, learned Trial Judge secured the presence of the appellants herein and after compliance of necessary formalities, framed the charges for the aforesaid offences. Accused persons pleaded not guilty and therefore, trial was held. 5. In order to prove the case of the prosecution, as many as 44 witnesses were examined on behalf of prosecution as P.W.1 to 44 and voluminous documentary evidence were placed on record which were exhibited and marked as Exs.P.1 to P.225 comprising of issued and cancelled polices, respective documents in that regard, necessary login id and documents in that regard, necessary entries that have been passed by the accused persons for issuance of the policy as well as cancellation of the policies. 6. Specimen handwriting of the accused were obtained during the course of investigation which was sent to the handwriting expert to compare the same with the - 10 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 disputed signatures and report obtained by the handwriting expert was also placed on record as exhibit. 7. On conclusion of recording of evidence, learned Trial Judge recorded the accused statement as is contemplated under Section 313 of Cr.P.C. wherein accused has denied the incriminatory amterials and did not chose to place any defence evidence on record. However, during the course of evidence, two documents were placed on record which is a letter marked at Ex.D.1 and another copy of the letter as Ex.D.2. 8. Thereafter, learned Trial Judge heard the arguments of the parties in detail and by impugned judgment, has convicted the appellants as referred to supra. 9. Being aggrieved by the same, appellants are before this Court, in these appeals. 10. Sri.M.B.Ravikumar, learned counsel for accused No.3 – Lokesha C., Sri.Lokesha D.K., learned counsel for - 11 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 accused No.2 – N.H.Rangaswamy and Sri.G.Jayaraj, learned counsel for accused No.1 – A.Sheeja, assailed the impugned judgment by pointing out the discrepancies in the prosecution evidence. 11. Sri.G.Jayaraj in addition contended that as on the date of issuance of the policies said to have been issued and cancelled by accused No.1, she was absent to the duty on that day, which has been established by placing necessary documentary evidence on record and somebody else has logged into her computer system by using the login-id ‘SHE’ and then issued policies for which accused No.1 cannot be held responsible at all and sought for clear acquittal. 12. Sri.M.B.Ravikumar and Sri.Lokesha D.K., learned counsel would contend that material evidence on record would only go to show that cancellation of the policies that have been issued at most can be treated as irregularity and no financial loss has been caused to NIAC - 12 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 Limited and as such, conviction of the appellants for the aforesaid offences is to be set aside. 13. Learned counsels for all the appellants would also in chorus contended that assuming that the irregularities that has crept in issuing the policies and cancelling the same and non crediting the premium account to the account of NIAC, Limited, no ingredients whatsoever is made available on record to attract the offence under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 and thus, sought for setting aside the conviction of the appellants for the aforesaid offences. 14. Further, learned counsel for accused Nos.2 and 3 have filed separate affidavits that in the event, this Court acquits appellants for the offence under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988. They would not lodge or lay any claim insofar as retirement benefits and other benefits are concerned. - 13 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 15. Contents of the affidavit are culled out hereunder for ready reference: Affidavit of accused No.2: I, N.H Rangaswamy, aged about 55 years, S/o. Late Halgaiah. Ex. Assistant, New India Assurance Company Ltd R/at No.301 Vivekanagar, New Ganapathi Temple, Hassan-573201. Today came to Bengaluru, do hereby solemnly and sincerely affirm and state on oath as follows: 1) I submit that, the Respondent Police of CBI, ACB, Bengaluru had registered a Criminal case against me and two others before the XXXII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru (CCH-34). 2) I submit that, I was convicted and sentence was awarded in Special C.C No.231/2010 on the file of the Learned XXXII Addl. City Civil and Sessions Judge for CBI Cases, Bengaluru (CCH- 34) on 11/06/2012 by invoking Section 409, 420,477(A) of IPC and Section 13(1) (c) (d) r/w Sec. 13(2) of the Prevention of Corruption Act. The Hon'ble Court was pleased to hold that, I am guilty of the above offences and awarded punishment to me. Being aggrieved by the conviction and sentence awarded I preferred this Criminal Appeal before this Hon'ble court. 3) I submit that now I have decided to assure this Hon'ble court that I will not claim anything from my employer under any circumstances. I also humbly pray that I have no objection reasonable fine/penalty amount to discharge me from above said offences. this Hon'ble court imposes a if Wherefore, humbly pray that this Hon'ble Court may be pleased to accept my prayer and grant an order of discharge, by accepting penalty amount imposed by this Hon'ble Court on mercy grounds. That, this is my name and signature and the above contents of this Affidavit are true and correct to the best of my knowledge, information and belief.” - 14 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 Affidavit of accused No.3: I, C. Lokesha, S/o Late Chikkarangaiah, Aged about 63 years, Residing at Jagadamba Street, Vidyanagar Post, SHIMOGA-577 203, today at Bengaluru do hereby by solemnly affirm and state on oath as follows: 1. I submit that I am the Appellant in the above case and I am well conversant with the facts and circumstances of the case. Hence, I am swearing to this affidavit. 2. I submit that the Respondent CBI/ACB, Bengaluru, had registered a criminal case against me and two others before the Hon'ble XXXII Addl City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru, (CCH-34). 3. I submit that I was convicted and sentenced to undergo simple imprisonment in Spl. C.C.No.231/10, passed by the Hon'ble 32nd Addl City Civil and Session Judge and Spl. Judge for CBI Cases, Bengaluru, (CCH-34), on 11/06/2012 by invoking under section 409, 420, 477A, of IPC and Section 13 (1) (c) (d) r/w Sec 13 (2) of Prevention of Corruption Act. The Hon'ble Trial Court was pleased to hold that I am guilty of the aforesaid offences and awarded punishment to me. 4. Being aggrieved by the conviction and sentence I preferred the aforesaid Appeal before this Hon'ble Court on 27/06/12 against the judgment dated: 11/06/2012 passed by the Hon'ble 32nd Addi City Civil and Session Judge and Spl. Judge for CBI Cases, Bengaluru, (CCH-34). 5. I submit that now I have decided to assure before this Hon'ble Court that, I will not claim anything from my employer under any circumstances. I also humbly pray that I have no objection if this Hon'ble Court imposes a reasonable penalty amount to discharge me from the above owing to my advanced age. WHEREFORE, I humbly pray that this Hon'ble Court may be pleased to accept my prayer and grant an order of discharge by accepting the penalty amount imposed by this Hon'ble Court on mercy grounds in the interest of justice. - 15 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 I do hereby solemnly affirm and state that this is my name and signature and contents stated above are true and correct to the best of my knowledge, information and belief. 16. Learned counsel for accused Nos.2 and 3 would also contend that in the event, this Court upholding the conviction for the remaining offences under Indian Penal Code, since, accused Nos.2 and 3 are the first time offenders and there is no compulsory minimum punishment of imprisonment prescribed under the statue for the remaining offences under the Indian Penal Code, the jail sentence may be set aside by enhancing the fine amount reasonably. 17. Per contra, Sri.P.Prasanna Kumar, learned counsel for the CBI supports the impugned judgment in toto. 18. He would further contend that admittedly, the policies are issued and cancelled by dubious method by appellants. He would also contend that merely accused No.1 being absent on the relevant day, would not ipso - 16 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 facto efface the criminal liability of accused No.1 inasmuch as why did she allow her login-id and password to be shared to other persons for misuse of the policies of NIAC Limited, is a question that needs to be considered by this Court and thus, sought for dismissal of appeals. 19. He also contended that material on record would go to show that the money is collected from the prospective policy holders but same was not accounted to NIAC Limited and in their records, only policies were cancelled which came into light subsequently and the policy owner statement in this regard and original policies that have been issued by accused Nos.2 and 3 are seized and they are placed on record and exhibited before the Court which would clearly establish that appellants have fraudulently issued the policies and cancelled the same in their records resulting in not only irregularity but illegality at the inception and thus, sought for dismissal of appeals. 20. He would also contend that to attract the offence under Section 13(1)(c) of Prevention of Corruption - 17 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 Act, 1988, the prosecution cannot place positive evidence on record and conduct of the appellants must be inferred from the attendant facts and circumstances of the case which is punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and thus, sought for dismissal of the appeals in toto. 21. Having heard the arguments of the parties in detail, this Court perused the material on record meticulously. 22. On such perusal of the material on record, following points would arise for consideration: 1. Whether the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the appellants for the offences under Section 409, 420, 477A of IPC and 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988? 2. Whether the appellants make out legal infirmity or perversity in recording the finding of the guilt for the aforesaid offences? 3. Whether the sentence needs modification? - 18 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 4. What order? REG.POINT Nos.1 AND 2: 23. In the case on hand, issuance of the policies as referred to supra in the form of tabular column is not in dispute. So also, cancellation thereof is not in dispute. Admittedly, the amount of premium collected from the prospective policy holders is not credited to the account of NIAC Limited. 24. These aspects of the matter would make it clear that it is the appellants who are responsible for issuance and cancellation of the policies. Cancellation of the policy was not intimated to the policy holders but it was only in the records of NIAC Limited. The same is established by collection of necessary papers and examination of policy holders. 25. But, admittedly, as on the date of issuance of three policies that is said to have been issued by accused No.1 on 17.08.2006, 08.11.2006, accused No.1 was - 19 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 absent for her duty. She used to operate the computer system for generating the policy by using her login-id as ‘SHE’. 26. However, when she was absent to the duty, somebody else must have logged in to the computer system and issued three policies as referred to supra and collected the premium of Rs.11,573/- but not credited the same to the account of NIAC Limited. Who else has logged into the computer system, in the place of accused No.1 for issuance of policies on 17.08.2006 and 08.11.2006 as referred to supra, is not properly investigated by investigation agency and no further material is collected and placed on record. 27. Sri.P.Prasanna Kumar, learned counsel would however contend that it is for accused No.1 to explain that who has misused the computer system. Admittedly, it is asking for negative proof from the accused No.1 which is impermissible More so in the criminal jurisprudence inasmuch as it is the prosecution which is required to - 20 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 prove the charges leveled against the accused beyond all reasonable doubt and only after prosecution placing incriminatory materials, accused is bound to explain the same. 28. In the case on hand, accused No.1 was on leave and somebody else has used the computer system for issuance of the aforesaid policies. It is for the prosecution to establish the same and in the absence of cogent evidence in that regard, asking accused No.1 to explain as to how those three policies came to be issued by prospective policy holders and not crediting the premium amount cannot be countenanced in law. Therefore, conviction of accused No.1 for the aforesaid offences needs to be set aside. 29. But insofar as accused Nos.2 and 3 are concerned, admittedly, they were also working as Assistant in NIAC Limited and they also had the power to issue the policies. Policies that have been issued by accused Nos.2 and 3 referred to supra, were again - 21 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 cancelled and premium amount collected from the prospective policy holders is not credited to the account of NIAC Limited. 30. Under such circumstances, when it is in the exclusive domain of accused Nos.2 and 3 for operating their computer system to generate the policies as referred to supra in the names of prospective policy holders which is established by placing necessary oral and documentary evidence on record, it is expected from accused Nos.2 and 3 to explain the incriminatory circumstances as to how those policies came into existences and why they were cancelled. 31. The signatures that have been compared by the handwriting expert would go to show that there was no cancellation request given by the policy holders and they were all forged signatures. Therefore, it was the duty of accused Nos.2 and 3 to find out as to whether the cancellation request was duly requested by the policy holders and failure to make necessary enquires in that - 22 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 regard and cancelling the policies only at the end of NIAC Limited and not crediting the premium amount to the account of NIAC Limited, would sufficiently establish beyond reasonable doubt to attract the offences under Section 409, 420, 477A of IPC. 32. But material on record would also indicate that necessary ingredients to attract the offence under Section 13(1)(c) which is punishable under Section 13(2) of the Prevention of Corruption Act, 1988 is not forthcoming in the prosecution case. 33. In order to appreciate the said argument, it is just and necessary for this Court to call out Section 13(1)(c) of Prevention of Corruption Act, 1988 which reads as under: “13. Criminal misconduct by a public servant – (1) A public servant is said to commit the offence of criminal misconduct- (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or unless his control as a public servant or allows any other person so to do.” - 23 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 34. Material evidence on record especially, the oral evidence of the prosecution witnesses including official superiors of accused Nos.2 and 3, would not be sufficient enough to record an order of conviction insofar as offence under Section 13(1)(c) of the Prevention of Corruption Act, 1988. 35. What is the dishonest and fraudulent intention whereby accused Nos.2 and 3 misappropriated or otherwise converted the property entrusted to them for their own use is to be established by the prosecution by placing cogent and convincing evidence on record except for the fact that accused Nos.2 and 3 are the public servants, no other ingredients are forthcoming on record. 36. Therefore, conviction of accused Nos.2 and 3 for the offence punishable under Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act, 1988 needs to be interfered by this Court by exercising the appellate jurisdiction on reappreciation of the material evidence on record both on law and facts. - 24 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 37. In view of the foregoing discussions, point Nos.1 and 2 are answered partly in the affirmative. REG.POINT No.3: 38. Insofar as accused No.1 is concerned, in view of the foregoing discussion, since she is acquitted of all the offences, the sentence ordered by the learned Trial Judge insofar as accused No.1 is concerned, needs to be set aside in toto. 39. However, with regard to accused Nos.2 and 3 are concerned, in view of the affidavit filed by them and also taking note of age being now 65 and 63 years respectively, this Court is of the considered opinion that if the sentence of imprisonment ordered by the learned Trial Judge for the offences under the provisions of Indian Penal Code if set aside by enhancing the fine amount to Rs.75,000/- for the aforesaid offences, ends of justice would be met. Accordingly, point No.3 is answered partly in the affirmative. - 25 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 REG.POINT No.4: 40. In view of the findings of this Court on point Nos.1 to 3 as above, following:
Decision
ORDER i. Appeal filed by accused No.1 in Crl.A.No.640/2012 is hereby allowed. ii. Appeals filed by accused Nos.2 and 3 in Crl.A.Nos.692/2012 and 716/2012 respectively are allowed in part. iii. While maintaining the conviction of the appellants for the offence punishable under Section 409, 420, 477A of IPC, appellants are acquitted for the offence punishable under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988. iv. Consequently, sentence of imprisonment ordered by the learned Trial Judge is modified as under: - 26 - NC: 2025:KHC:6407 CRL.A No. 692 of 2012 C/W CRL.A No. 640 of 2012 CRL.A No. 716 of 2012 a. Appellants shall undergo simple imprisonment for the day till rising of this Court for the aforesaid offences and to pay enhanced fine amount of Rs.75,000/- in respect of all the offences on or before 15.03.2025 failing which they shall undergo simple imprisonment for a period of one year. v. Office is directed to return the Trial Court Records with copy of this order forthwith for issuance of modified conviction warrant. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 2 Sl No.: 3 CT: BHK