✦ High Court of India

BEFORE THE HON'BLE MR. JUSTICE v. SRISHANANDA CRL.A.NO

Case Details

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE V. SRISHANANDA CRL.A.NO.653/2011 C/W CRL.A.NO.587/2011 C/W CRL.A.NO.596/2011 C/W CRL.A.NO.598/2011 C/W CRL.A.NO.611/2011 C/W CRL.A.NO.666/2011 IN CRL.A.NO.653/2011 BETWEEN SHIVALINGEGOWDA S/O LATE MUDDEGOWDA AGED 63 YEARS RESIDENT OF NO.3595 HEMAVATHI EXTENSION (WEST) BEHIND TOWN CLUB, K R PET, MANDYA DISTRICT. (BY SRI KIRAN S. JAVALI, SR. COUNSEL A/W SRI CHANDRASHEKARA.K, ADVOCATE) ...APPELLANT AND STATE BY INSPECTOR OF POLICE CBI, ACB BANGALORE, REPRESENTED BY PUBLIC PROSECUTOR (BY SRI P. PRASANNA KUMAR, ADVOCATE) …RESPONDENT 2 THIS CRL.A IS FILED U/S 374 (2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 06.06.2011 PASSED BY THE XXXII ADDL.C.C. AND S.J., AND SPL. JUDGE FOR CBI CASES, - CONVICTING THE BANGALORE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 120B, 420, 468, 471, 477A IPC AND ALSO P/U/S 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. IN SPL.C.C.NO.45/04 IN CRL.A.NO.587/2011 BETWEEN SH N SHANTHARAJ S/O LATE H NARAYANAPPA AGED ABOUT 56 YEARS FORMERLY OFFICER, MMGS-II, GANGANAGAR BRANCH STATE BANK OF MYSORE BANGALORE R/AT#2/484, CHIKKAHARADANAHALLI, BEHIND RAILWAY WORKSHOP, JAYANAGAR, MYSORE. (BY SRI KIRAN S. JAVALI, SR. COUNSEL FOR SRI CHANDRASHEKARA.K, ADVOCATE) ...APPELLANT AND STATE BY INSPECTOR OF POLICE, CBI, REPRESENTED BY STANDING COUNSEL FOR CBI IN THE HON’BLE HIGH COURT BANGALORE. (BY SRI P.PRASANNA KUMAR, ADVOCATE) ...RESPONDENT 3 THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 06.06.2011 PASSED BY THE XXXII ADDL.C.C. AND S.J., AND SPL.JUDGE FOR CBI CASES, BANGALORE - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 120B, 420, 468, 471, 477-A IPC AND SECTION 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT 1988 AND ETC. IN SPL.C.C.NO.45/04 IN CRL.A.NO.596/2011 BETWEEN KRISHNAN NAIK S/O LATE SEVYA NAIK CASHIER CUM CLERK SBM MANDI MOHALLA MYSORE (BY SRI R NAGENDRA NAIK, ADVOCATE) ...APPELLANT AND STATE BY INSPECTOR OF POLICE CBI, ACB, BANGALORE (BY SRI P.PRASANNA KUMAR, ADVOCATE) …RESPONDENT THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 06.06.2011 PASSED BY THE XXXII ADDL.C.C. AND S.J., AND SPL.JUDGE FOR CBI CASES, BANGALORE - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 120B, 420, 468, 471, 477-A IPC AND SEC. 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. IN SPL.C.C.NO.45/04 4 IN CRL.A.NO.598/2011 BETWEEN SRI P KRISHNAPPA S/O PANDU R/O KYATHANAHALLI POST PANDAVAPURA TALUK MANDYA DISTRICT (BY SRI R NAGENDRA NAIK, ADVOCATE) ...APPELLANT AND STATE BY INSPECTOR OF POLICE CBI, ACB GANGANAGARA BANGALORE (BY SRI P.PRASANNA KUMAR, ADVOCATE) ) …RESPONDENT THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 06.06.2011 PASSED BY THE XXXII ADDL.C.C. AND S.J., AND SPL.JUDGE - FOR CBI CASES, BANGALORE CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 120B, 420, 468, 471, 477-A IPC AND SEC. 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. IN SPL.C.C.NO.45/04 IN CRL.A.NO.611/2011 BETWEEN DR A N KESHAVA MURTHY S/O LATE A P NARASIMHA MURTHY 71 YEARS, NO.1693/1 1ST CROSS, RAMA MOHANA PURA SRIRAMPURA POST, 5 BANGALORE -560 021 (BY SRI B S PRASAD, ADVOCATE) AND THE STATE BY INSPECTOR OF POLICE, CBI/ACB, BANGALORE ...APPELLANT (BY SRI P. PRASANNA KUMAR, ADVOCATE) …RESPONDENT THIS CRL.A IS FILED UNDER SECTION 374 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 06.06.2011 PASSED BY THE XXXII ADDL.C.C. AND S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 120B, 420, 468, 471, 477A IPC AND ALSO P/U/S 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. IN SPL.C.C.NO.45/04 IN CRL.A.No.666/2011 BETWEEN SRI. K.V. VIVEKANANDA S/O LATE K M VENKATA GOWDA R/O KYATHANAHALLI POST PANDAVAPURA TALUK MANDYA DISTRICT (BY SRI R NAGENDRA NAIK, ADVOCATE) AND 1 . STATE BY INSPECTOR OF POLICE, CBI, ACB, GANGANAGARA ...APPELLANT 6 BANGALORE (BY SRI P.PRASANNA KUMAR, ADVOCATE) ...RESPONDENT THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 06.06.2011 PASSED BY THE XXXII ADDL.C.C. AND S.J., AND SPL.JUDGE - FOR CBI CASES, BANGALORE CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 120B, 420, 468, 471, 477-A IPC. IN SPL.C.C.NO.45/04 THESE APPEALS HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:- CORAM: HON'BLE MR JUSTICE V SRISHANANDA CAV JUDGMENT

Legal Reasoning

(PER: HON'BLE MR JUSTICE V SRISHANANDA) Accused persons convicted in Special C.C.No.45/2004, on the file of City Civil and Sessions Judge and Special Judge for CBI Cases (CCH-34), who have been convicted by judgment dated 06.06.2011 are the appellants. 2. The rank of the accused persons and their appeal, conviction recorded by the trial Court for the offences in respect 7 of accused persons and sentence ordered against them are tabulated hereunder for ready reference. Name of the accused Spl. C.C. No. Rank before Spl. Court. Criminal Appeal No. before this Court Conviction for the offence p/u/s Sentence passed Shivalinge Gowda Accused No.4 45/2004 653/2011 120B, 471, 468, 420 477A, 13(1) IPC, (d) r/w Section 13(2) of Prevention of Corruption Act. N.Shantharaj Accused 45/2004 587/2011 120B, No.1 471, 468, 420 477A, 13(1) IPC, (d) r/w Section 13(2) of Prevention of Corruption Act. Krishnan Naik Accused No.2 45/2004 596/2011 120B, 468, 471, 477A, 420 IPC, 13(1) (d) r/w Section 13(2) of Prevention of Corruption Act. SI for one year SI for one and year, fine of Rs.5,000/- in default, SI for six months, for each of the offences. SI for one year SI for one and year fine of Rs.5,000/- in default, SI for six months, for each of the offences. SI for one year SI for one year and fine of Rs.5,000/- in default, SI six for months, for each of the offences. 8 P.Krishnappa Accused No.7 45/2004 598/2011 120B, 468, 477A, IPC. 471, 420 Dr. A.N.Keshava murthy Accused No.6 45/2004 611/2011 120B, 471, 468, 420 477A, 13(1) IPC, r/w (d) Section 13(2) of Prevention of Corruption Act. K.V.Viveka- nanda Accused No.8 45/2004 666/2011 120B, 468, 477A, IPC. 471, 420 SI for one year SI for one and year fine of Rs.5,000/- in default, SI for six months, for each of the offences. SI for one year SI for one and year fine of Rs.5,000/- in default, SI for six months, for each of the offences. SI for one year SI for one and year fine of Rs.5,000/- in default, SI for six months, for each of the offences. 9 Note: (i) Accused No.3 had filed a separate appeal in Crl.A.No.597/2011. For his non appearance, warrant came to be issued and the same is delinked from the above appeals. (ii) Appeal filed by accused No.5 came namely Jayaramu stood dismissed as abated on account of his death. 3. Facts in brief which are utmost necessary for disposal of the present appeal are as under: According to the case of the prosecution, accused No.1 N.Shantharaj, was the Manager, State Bank of Mysore, Gandhinagar Branch, Bangalore, accused No.2 Krishna Naik, was the cashier cum clerk, State Bank of Mysore, Mandi Mohalla Branch, Mysore, accused No.3 H.S. Umesh was the cashier-cum-godown keeper, State Bank of Mysore, Haveri Branch, accused No.4 M. Shivalinge Gowda, Executive Officer, Taluk Panchayath, Krishnaraj Pet, Mandya District, accused No.6 A.N. Keshava Murthy, Retired Assistant Director, Animal Husbandry and Veterinery Services (for short ‘AH & VS’), being the public servants, who were functioning in the aforesaid 10 capacities. 4. Prosecution case further alleges that they all entered into criminal conspiracy with P. Krishnappa (accused No.7), K.V. Vivekananda (accused No.8), both are from Kyathanahali Post, Pandavapura Taluk, Mandya District, during the year 1994. They have agreed to commit the illegal act of cheating, forging documents and by using such forged documents, they represented that they are genuine documents, in regard to sanctioning of loans in ATL/7/54, ATL/7/36, TL/SBF/59, ATL/7/55, ATL/7/56, ATL/7/78, TL/SBF/67, ATL/7/75, ATL/7/77, AtL/7/74, ATL/7/81, ATL/7/87, TL/70, ATL/7/34, ATL/7/76, ATL/5/40 and ATL/5/41, under Integrated Rural Development Program (for short ‘IRDP’) scheme to the tune of Rs.1,26,300/-. 5. Prosecution further alleged that in furtherance of such criminal conspiracy, there were forged thumb impressions of the borrowers on the loan applications and those forged thumb impressions were attested dishonestly and fraudulently. 11 Forged quotations and receipts pertaining to bullock tyre carts by removing the photographs available in the loan applications with the bank and reaffix the same to the forged loan applications with an intention to cheat the bank. 6. Based on such documents, loans were sanctioned and disbursed resulting in financial loss to the bank. 7. It is the specific case of the prosecution that accused Nos.7 and 8 abetted the other accused persons to commit the aforesaid illegal acts. Accused Nos.1 to 4 and 6 being the public servants, by corrupt means, obtained pecuniary advantages by mis-conducting and abusing their positions and thereby there was a loss caused to the bank to the extent of Rs.1,26,300/-. 8. A source complaint came to be lodged in R.C.No.4 (A) 97-CBI/BLR and detail investigation was conducted. After thorough investigation, a charge sheet came to be filed by collecting the necessary documents including the forged documents. 12 9. On receipt of charge sheet, learned Special Judge took cognizance of the offences under Section 120B, 468, 471, 477A, 109 r/w Section 420 and 197 IPC and as against the public servants, under Section 13 (1) (d) r/w Section 13 (2) of prevention of corruption Act, 1988. 10. Later on, learned Special Judge secured the presence of accused persons after compliance of Section 207 Cr.P.C., framed the charges for the aforesaid offences against the accused persons. Since accused persons pleaded not guilty. Therefore, trial was held. 11. In order to prove the case of the prosecution and to bring home the guilt of the accused persons, prosecution examined 36 witnesses, who were examined as P.Ws.1 to 36. Hundred Sixty nine documents were placed on record on behalf of prosecution which were exhibited and marked as Exs.P.1 to P.169. 12. On behalf of the defence, five documentary evidence were placed on record which were exhibited and marked as Exs.D.1 to D.5, comprising of portion of statement, 13 proforma in blank format, portion of statement of Ninga Nayak, letter of Instructions dated 25.08.1993 and endorsement. 13. Thereafter, learned Special Judge recorded the accused statement as is contemplated under Section 313 Cr.P.C., wherein accused has denied all the incriminatory materials and did not choose to place on record any defence evidence. 14. Subsequent there to, learned Special Judge heard the parties in detail and by impugned judgment, convicted the appellants and sentenced as under: “On being required to submit then say on the question of sentence, accused No.1 submits that having regard to the amount involved the period of the trial the linient view may be taken A.2 to 4 and 6 to 8 submit that the lenient view may be taken in new of the circumstances like the amount involved and the period of the trial. On hearing the accused, having regard to the nature of the offence, the quantum of the amount in connection with which the offences have committed, the period of trial having regard to their age the following final sentence is passed. 14 1. The accused Nos.1 to 4 & 6 to 8 are convicted and sentenced to undergo simple imprisonment for one year for the offence punishable U/s 120B of IPC. 2. The accused Nos.1 to 4 & 6 to 8 are convicted and sentenced to undergo SI for one year for the offence punishable U/s 468 1PC and shall pay fine of Rs.5,000/- each and in default of fine, they shall undergo simple imprisonment for 6 months. 3. The accused Nos.1 to 4 & 6 to 8 are convicted and sentenced to undergo SI for one year for the offence punishable U/s 471 IPC and shall pay fine of Rs.5,000/- each and in default of fine, they shall under go simple imprisonment for 6 months. 4. The accused Nos.1 to 4 and 6 to 8 are convicted and sentenced to undergo SI for one year for the offence punishable U/s 477A IPC and shall pay fine of Rs.5,000/- each and in default of fine, they shall under go simple imprisonment for 6 months. 5. The accused Nos.1 to 4 & 6 to 8 are convicted and sentenced to undergo SI for one year for the offence punishable U/s 420 IPC and shall pay fine of Rs.5,000/- each and in default of fine, they shall under go simple imprisonment for 6 months. 6. The accused No.1 to 4 & 6 are convicted and sentenced to undergo SI for one year for the offence punishable U/s 13(1)(d) r/w 13(2) of P.C. Act and shall pay fine of Rs.5,000/- each and in default 15 of fine, shall under go simple imprisonment for 6 months. It is further ordered that the substantive sentences shall run concurrently. The bail bonds of the accused Nos.1 to 4 & 6 to 8 are stand cancelled. Issue copy of the judgment to the accused Nos.1 to 4 & 6 to 8.” 15. Being aggrieved by the same, appellants have preferred the present appeals as referred to supra in the tabular column. 16. Sri Kiran S Jawali, learned Senior Counsel appearing on behalf of Sri Chandrashekara K, counsel for the appellants/accused No.1 and 4 in Crl.A.No.587/2011 and 653/2011, Sri R.Nagendra Naik, learned counsel for the appellants/accused No.2, 7 and 8 in Crl.A.Nos.596/2011, 598/2011 and 666/2011, Sri B.S. Prasad, learned counsel for the appellant/accused No.6 in Crl.A.No.611/2011 have addressed their arguments. 16 17. They further contended that the learned Trial Judge failed to note that entire amount of Rs.1,26,000/- has been repaid and therefore, there was no wrongful loss caused to the bank nor corresponding wrongful gain to the appellants herein, which is sine qua non for recording an order of conviction for the offence punishable under section 420 IPC. 18. They further contended that material evidence on record is hardly sufficient to convict the appellants for the aforesaid offences and impugned judgment is suffering from legal infirmities and improper appreciation of the material evidence which resulted in perversity and sought for allowing the appeals. 19. Alternatively, Sri Kiran S. Jawali, learned Senior Counsel representing the appellants in Crl.A.Nos. 653/2011 and 587/2011 submits that the appellants and the material evidence on record is hardly sufficient to convict them for the offence punishable under Section 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 and therefore, they may be acquitted for those offences. 17 20. Sri R. Nagendra Naik, learned counsel representing the appellants in Crl.A.Nos.596/2011, 598/2011 and 666/2011, who are accused No.2, 7 and 8 in the trial Court among them (accused No.2 public servant) contended that conviction of the appellants for the aforesaid offences is based on surmises and conjectures. He adopted arguments of Sri Kiran S. Jawali, learned Senior Counsel, insofar as accused No.2 is concerned. He also contended that accused No.7 and 8 are only beneficiaries and in the event of upholding conviction, jail sentence awarded to them may be set aside by enhancing fine amount reasonably. 21. Sri B.S. Prasad, learned counsel for the appellant in Crl.A.No.611/2011 contended that absolutely there was no financial gain made by appellant in Crl.A.No.611/2011 inasmuch as his role was only to furnish the certificates about the health of the animal for which the loan was sought for in the proforma and there is no material evidence on record that he has also conspired with other accused persons for lending 18 loan under IRDP scheme to the borrowers and thus he should be acquitted for all the offences. 22. Sri B.S. Prasad, further contended that the role of the appellant No.6 is only to the extent of furnishing the necessary opinion as to the health condition of animal and therefore, he could not be the part of alleged criminal conspiracy with the other accused and his role has not been properly appreciated by the learned Trial Judge in the impugned judgment and thus, sought for allowing the appeal. 23. He has further contended that the appellant/accused No.6 has exposed the illegal activities of Jayaram (accused No.5, case against him abated) and as a retaliation, he has been falsely implicated in the case. 24. He would also further contend that the appellant/accused No.6 has been falsely implicated in the case on hand on account of he exposing the illegal activities of SBI to lead banker namely, Vijaya Bank. As such, accused No.6 should be acquitted. 19 25. He invited the attention of this Court to Exs.D.1 and D.5, contended that accused has only furnished the necessary information as per the prescribed format that too for the purpose of obtaining the insurance which is a required formality. Therefore, at any stretch of imagination the accused No.6 could not be a part of criminal conspiracy and thus, sought for allowing the appeal. 26. He further contended that the material on record would not show that the accused No.6 has received any illegal gratification or pecuniary advantage in furnishing the opinion as to the health of animal and as such, the accused No.6 cannot be held liable for the other than IPC offences, much less for the offence punishable under Section 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 and sought for allowing the appeal. 27. In order to have certainty with regard to the submission, affidavits of accused Nos.4, 1 and 2 who are appellants in Crl.A.Nos.653/2011, 587/2011 and 596/2011 20 respectively are placed on record. Contents of those affidavits are extracted hereunder for ready reference:- Affidavit of accused No.4/appellant in Crl.A.No.653/2011 “I, Sri M.Shivalinge Gowda, S/O Late Mudde Gowda, Aged about 79 years, Door No.3595, Hemavathi Extention, Next to town Club, K.R.Pete Town, Mandya district-571426, today at Bangalore, do hereby solemnly affirm and state on oath as follows: 1. I State that I am the Appellant in this case. I know the facts of the Case. Accordingly I swear this Affidavit 2. I State that I am challenging the order of conviction passed by Hon'ble XXXII Addl. And Sessions Judge and Spl.Judge For CBI Cases, Bangalore in SpI.C.C.No.45/04 Convicting me For The Offence P/U/S 120B, 420, 468, 471, 477-A, IPC and 13(1)(d) r/w 13(2) of PC Act on 06.06.2011 3. I State that when I was working as executive officer Taluk Panchayat. The respondent police have registered an FIR in RC. No.04(A)/1997 for the offence punishable under section 120B, 468, 471, 477A, 420, 409, r/w 197 of IPC and Section 13(1)(d) 13(2) of PC Act alleging that during the year 1994 all the Accused agreed to do cause to be done illegal acts of cheating, forging document, making use of the forged documents as 21 genuine, to cheat the bank in connection with sanction and disbursement of the loan amounts under the IRDP scheme in connections with several accounts. In furtherance of the criminal conspiracy forged the TI of the borrowers on the loan application dishonestly and fraudulently attested the said TI forged that quotations and receipts pertaining to the bullock tyre carts by making use of earlier photographs available on the loan applications as such forged the above documents with an intention to cheat the bank. 4. I State that after investigation the Respondent police have filed a charge sheet against me and other Accused for the alleged offence and the Hon'ble Trial Court has taken cognizance against all the Accused 5. I State that after the conclusion of the trial the Hon'ble trial court has convicted me and other accused for the offenses punishable u/s 120B, 420, 468, 471, 477-A IPC and 13(1)(d) r/w 13(2) of PC Act. Being aggrieved by the order of conviction dated 6th June 2011 passed by the XXXII Additional City Civil & Sessions Judge and Special Judge for C.B.I.Cases Bangalore in Special. C.C.No.45 /2004 the present appeal has been filed. 6. I State that I attained superannuation during the pendency of the criminal trial. I have never claimed or been paid any of my retirement benefits. Thiş was refused as these proceedings were pending after conviction. I have not challenged the said order in 22 anticipation of the Judgment in this case. Due to my old age and also suffering from old age aliments I have decided to put an end to the litigation. I state that if the order of sentence is set aside and only fine amount is imposed, I undertake to refrain from claiming any benefits arising due to my superannuation. I submit that the averments made in paragraph 1 to 6 of this Affidavit are true to the best of my knowledge, belief and information.” Affidavit of accused No.1/appellant in Crl.A.No.587/2011 “I, Sri. N. Shantharaj, S/O.Late H. Narayanappa, Aged about 72 years, Door No.2/484, Chikkaharadanahalli, Behind Railway work Shop, Jayanager, Mysore-570014, today at Bangalore, do hereby solemnly affirm and state on oath as follows: 1. I State that I am the Appellant in this case. I know the facts of the Case. Accordingly I swear this Affidavit 2. I State that I am challenging the order of conviction passed by Hon'ble XXXII Addl. And Sessions Judge and Spl.Judge For CBI Cases, Bangalore in Spl.C.C.No.45/04 Convicting me For The Offence P/U/S 120B, 420, 468, 471, 477-A, IPC and 13(1)(d) r/w 13(2) of PC Act on 06.06.2011 3. I State that when I was working in the state bank of Mysore. The respondent police have registered an 23 FIR in RC.No.04(A)/1997 for the offence punishable under section 120B, 468, 471, 477A, 420, 409, r/w 197 of IPC and Section 13(1)(d) r/w 13(2) of PC Act alleging that during the year 1994 all the Accused agreed to do cause to be done illegal acts of cheating, forging document, making use of the forged documents as genuine, to cheat the bank in connection with sanction and disbursement of the loan amounts under the IRDP scheme in connections with several accounts. In furtherance of the criminal conspiracy forged the TI of the borrowers on the loan application dishonestly and fraudulently attested the said TI forged that quotations and receipts pertaining to the bullock tyre carts by making use of earlier photographs available on the loan applications as such forged the above documents with an intention to cheat the bank. 4. I State that after investigation the Respondent police have filed charge sheet against me and other Accused for the alleged offence and the Hon'ble Trial Court has taken cognizance against all the Accused. 5. I State that after the conclusion of the trial the Hon'ble trial court has convicted me and other accused for the offenses punishable u/s 120B, 420, 468, 471, 477-A IPC and 13(1)(d) r/w 13(2) of PC Act. Being aggrieved by the order of conviction dated 6th June 2011 passed by the XXXII Additional City Civil & Sessions Judge and Special Judge for C.B.I.Cases Bangalore in 24 Special.C.C.No.45 /2004 the present the above appeal has been filed. 6. I State that after conviction I was terminated from service. I have not challenged the said order in anticipation of the Judgement in this case. Due to my old age I have decided to put an end to the litigation. If I am imposed with any punishment without imprisonment I undertake not to claim any terminal benefit from my employer. I submit that the averments made in Paragraph 1 to 6 of this Affidavit are true to the best of my knowledge, belief and information.” Affidavit of accused No.2/appellant in Crl.A.No.596/2011 “I, Sri. Krishnan Naik, S/O.Late Sevya Naik, Cashier Cum Clerk, Sbm, Mandi Mohalla, Mysore-570 001, do hereby solemnly affirm and state on oath as follows: 1. I submit that I am the Appellant in this case. I know the facts of the Case. Accordingly I swear this Affidavit. 2. I submit that I am challenging the order of conviction passed by Hon'ble XXXII Addl. And Sessions Judge and Spl.Judge For CBI Cases, Bangalore in SpI.C.C.No.45/04 Convicting me For The Offence P/U/S 120B, 420, 468, 471, 477-A, 420 IPC and 13(1)(d) r/w 13(2) of PC Act. 3. I submitted that when I was working in the state bank of Mysore. The respondent police have registered an FIR 25 in RC.No.04(A)/1997 for the offence punishable under section 120B, 468, 471, 477A, 420,409, r/w 197 of IPC and Section 13(1)(d) r/w 13(2) of PC Act alleging that during the year 1994 all the Accused agreed to do cause to be done illegal acts of cheating, forging document, making use of the forged documents as genuine, to cheat the bank in connection with sanction and disbursement of the loan amounts under the IRDP scheme in connections with several accounts. In furtherance of the criminal conspiracy forged the TI of the borrowers on the loan application dishonestly and fraudulently attested the said TI forged that quotations and receipts pertaining to the bullock tyre carts by making use of earlier photographs available on the loan applications as such forged the above documents with an intention to cheat the bank. 4. I submit that after investigation the Respondent police have filed a charge sheet against me and other Accused for the alleged offence and the Hon'ble Trial Court has taken cognizance against all the Accused. 5. I submit that after the conclusion of the trial the Hon'ble trial court has convicted me and other accused for the offenses punishable u/s 120B, 420, 468, 471, 477-A, 420 IPC and 13(1)(d) r/w 13(2) of PC Act. Being aggrieved by the order of conviction dated 21st November 2012 passed by the XXXII Additional City Civil & Sessions Judge and Special Judge for C.B.I.Cases Bangalore in Special C.C.No.45 /2004 the present appeal was filed. 26 6. I submit that after conviction I was terminated from service and issued compulsory retirement. I have not challenged the said order in anticipation of the Judgement in this case. Due to my old age I have decided to put an end to the litigation. If I am imposed with any punishment without imprisonment I undertake not to claim any terminal benefit from my employer. I submit that the averments made in Paragraph 1 to 6 of this Affidavit are true to the best of my knowledge, belief and information.” 28. Per contra, Sri P. Prasanna Kumar, learned counsel for CBI., supports the impugned judgment. He would further contend that the material evidence on record is sufficient enough to infer the existence of criminal conspiracy and thus, sought for dismissal of the appeals. 29. He would also contend that appellant Nos.1 to 4 and 6 being the public servants, admittedly were required to exercise such diligence while lending the loans under IRDP Scheme, but, they failed to do so in the case on hand. 30. The explanation offered on behalf of the public servants that there was no wrongful loss of money to State 27 Bank of Mysore, Kyathanahalli Branch and there is no corresponding wrongful gain to the appellants including the beneficiaries cannot be countenanced in law, inasmuch as the accounts opened by the public servants are in the fake names and real beneficiaries have deposed before the Court that they did not opt for any loan under IRDP scheme and the signatures/thumb impressions found in the loan applications are not that of their signatures/thumb impressions. They deposed that only photographs found in the applications are that of their photographs. 31. Sri Prasanna Kumar, would further contend that photographs furnished by the so called beneficiaries, which are found on their loan applications are actually affixed in account opening forms of State Bank of India, Kyathanahalli Branch which have been removed from their application forms and the same photographs have been repasted/reaffixed on to the loan applications under the IRDP scheme. Further, forging their signatures/thumb impressions, loans have been obtained which would be sufficient enough to attract the offences punishable 28 under the provisions of IPC and Prevention of Corruption Act and thus, sought for dismissal of the appeal. 32. Sri Prasanna Kumar, would also contend that accused Nos.1 to 4 and 6 being the public servants must have done this for obtaining the pecuniary advantage. Expecting the direct evidence to establish the offence under Section 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 is thus impermissible. 33. Sri Prasanna Kumar, would also contend that in respect of the accused No.6/appellant in Crl.A.No.611/2011 is concerned, the arguments put forward on his behalf that he was not part of the conspiracy cannot be countenanced in law. 34. He would further contend that the material evidence on record would be sufficient enough to establish that he did not merely furnish the opinion for the purpose of getting insurance to the animal for which the loan came to be issued, but his role is something more inasmuch as he did not verify as to who has applied for the loan and for whom the certificate is issued. Moreover, very applicants have deposed that they did 29 not purchase any animal. If it so, which are the animals for which accused No.6 issued certificates that too after examining them is a question that remains unanswered on behalf of accused No.6. 35. Sri Prasanna Kumar would further contend that appellant in Crl.A.No.611/2011, who was accused No.6 has been falsely implicated in the case on hand on account of he exposing illegal activities of Jayaram, Zilla Panchayath and Manager of SBI., Kyathanahalli, is fallacious argument inasmuch as but for his role in the conspiracy, loan would not have been sanctioned and sought for dismissal of the appeal in toto. 36. Having heard the parties in detail, this Court perused the material on record meticulously. 37. On such perusal of the material on record, following points would arise for consideration. 1) Whether the material evidence placed on record would be sufficient enough to maintain the 30 conviction of the appellants for the aforesaid offences? 2) Whether the appellants makes out a case that the impugned judgment of conviction and order of sentence is suffering from legal infirmity and perversity and thus calls for interference? 3) Whether the sentence needs modification? 4) What order? Regarding point Nos.1 and 2: 38. In the case on hand accused No.1 N. Shantharaj being the Manager, MMGS-II, State Bank of Mysore, Ganganagar Branch, Bangalore, accused No.2 Krishan Naik being Cashier cum Clerk, State Bank of Mysore, Mandi Mohalla, Mysore, accused No.3 H.S. Umesh being Cashier-cum-Godown Keeper, State Bank of Mysore, Haveri Branch, accused No.4 M. Shivalinge Gowda, being the Executive Officer and accused No.6 – A.N. Keshava Murthy, being the Assistant Director, department of Animal Husbandry, Veterinary Services, are not in dispute. 31 Name of the Loanee Date of certificate Deposition reference Exhibit Purpose for loan Loan Amount Name of the signatory/Veteri nary Surgeon Thimmappa 13.06.1994 P.W.6 Shivaramu Ex.P.19 10,000 Dr. A.N. Keshavamurthy Bullock and bullock tyre-cart Lakshmanaiah 20.05.1994 P.W.7 Lakshmanaiah Ex.P.33 CB Cow 6,500 Dr. A.N. Keshavamurthy 10,000 Dr. A.N. Keshavamurthy Nanjunda Naik 13.06.1994 Ex.P.48 P.W.8 Nanjunda Naik Bullock and bullock tyre-cart Honnaiah 26.10.1994 P.W.9 Swamy Ex.P.60 . Sheeps 10+1 5,400 Dr. A.N. Keshavamurthy Mariyamma 05.10.1994 Shanthamma 05.10.1994 Rangayya 05.10.1994 Saraswathi 05.10.1994 P.W.10 Ammasamma P.W.11 Kamalamma P.W.15 Rangayya P.W.16 Kamalamma Ex.P.67 CB Cow 6,500 Dr. A.N. Keshavamurthy Ex.P.69 Bullock 5,000 Dr. A.N. Keshavamurthy Ex.P.80 CB Cow 6,500 Dr. A.N. Keshavamurthy Ex.P.82 CB Cow 6,500 Dr. A.N. Narasimhegowda 20.05.1994 P.W.23 Nagarachari Ex.P.90 Keshavamurthy 12,000 Dr. A.N. Keshavamurthy Bullock and bullock tyre-cart Karapaiah 24.11.1994 Venkataiah 05.10.1994 Nagu 26.05.1994 P.W.34 Karapaiah P.W.24 H.R. Krishnaiah Gowda P.W.26 M.C.Patil Ex.P.93 CB cow 6,500 Dr. A.N. Keshavamurthy Ex.P.94 Sheeps 10+1 5,300 Dr. A.N. Keshavamurthy Ex.P.98 CB cow 6,500 Dr. A.N. Keshavamurthy 32 39. Admittedly there was a scheme called IRDP scheme where under banks were required to extend the loan facility for the small farmers for purchase of cattle. Seventeen such loan applications were processed in State Bank of India, Kyathanahalli Branch. 40. Admittedly, material documents placed on record would show that none of the applicants are the beneficiaries of the said loans under IRDP Scheme. The documents placed on record by prosecuting agency would establish that the photographs found on the loan applications are no doubt that of the loanees, but proceeds have not reached the hands of the loanees. 41. Admittedly, no cattle was purchased by the loanees to avail the benefit of IRDP scheme. Statements recorded by the Investigating Officer of the loanees would sufficiently establish the same. 33 42. In fact the loanees are examined as P.Ws.6 to 11, 15 to 18. They have deposed in their examination-in-chief that they have not availed for the purpose of purchase of cattle or bullocks. When these persons have not at all purchased the cattle, accused No.6 being the Assistant Director, department of Animal Husbandry and Veterinary Services, certifying the health condition of the cattle would not arise at all. 43. Further, the signatures and the thumb impressions of the original loanees having been disputed by them, are sent to the handwriting expert who is examined as P.W.36 – Sushil Kumar Chadha. The report given by the handwriting expert – P.W.36 is marked at Ex.P.136, which would reveal that the admitted signatures/thumb impression of the loanees did not tally with the signatures, thumb impressions in the loan applications. 44. Therefore, it is the public servants who are accused Nos.1 to 4 and 6, being the manager, cashier cum clerk, cashier cum Godown Keeper of State Bank of Mysore, and Executive Officer, Taluk Panchayath, and Assistant Director (AH 34 & AV) have to explain to the Court when the incriminatory circumstances are put to them, as to who has signed and in whose presence. No such explanation is forthcoming on record. 45. It is pertinent to note that accused No.6 being the Assistant Director, department of Animal Husbandry, Veterinary Services, was required to certify the health condition of the animal for which the loan is to be granted. His signature is found in each and every file marked at Exs.P.19, 27, P.42, P.49, P.60, P.67, P.69, P.80, P.82, P.90, P.94 and P.98. 46. However, explanation offered by accused No.6 is that he examined the cattle only for the purpose of taking insurance policy and not for the purpose of granting loan and therefore, he is not part of the conspiracy. Such an explanation on behalf of accused No.6 is nothing but a self serving testimony. More so, when contra materials are placed on record by prosecution as referred to supra. 47. Defence of accused No.6 is that he exposed the mis deeds of SBI, Kyathanahalli Branch and also the misdeeds of his counterpart namely, Jayaram, in Zilla Panchayath meeting, 35 as well as to the officials of the lead banker i.e., Vijaya Bank. As a retaliation attitude, he has been falsely implicated in the case. 48. In this regard Sri B.S. Prasad also contended that no sanction was granted to prosecute said erring officials and instead accused No.6, who is the appellant in Crl.A.No.611/2011 has been made as scapegoat in the incident. 49. Said argument of Sri B.S. Prasad is also suffering from several inconsistencies and therefore to be treated as fallacy. 50. In the first place, accused No.6 should have made an endorsement that he is certifying the application only for the purpose of taking insurance before subscribing the signature. No such endorsement is found in the respective files. 51. Thus, argument of Sri B.S. Prasad, cannot be countenanced in law inasmuch as accused No.6 did not merely sign the form but he also filled up necessary details as to the description of cattle. When the loanees themselves have not 36 purchased the cattle which of the animal, was actually examined by accused No.6 before issuing the certificates as is found in Exs.P.19, 27, P.42, P.49, P.60, P.67, P.69, P.80, P.82, P.90, P.94 and P.98 is a question that remains unanswered. 52. Secondly, accused No.6 should have refused to issue certificate or made it clear on the certificate itself that said certificate is issued only for the purpose of taking insurance policy and not for any other purpose. On perusal of material evidence on record, no such endorsement is forthcoming on the certificates signed by accused No.6 in Exs.P.19, 27, P.42, P.49, P.60, P.67, P.69, P.80, P.82, P.90, P.94 and P.98. 53. Why accused No.6 would sign the document, if he is not part of the conspiracy is a question that is to be answered by him. But no explanation is forthcoming on record in this regard. 54. In a given case, existence of criminal conspiracy in a given case cannot be expected to be proved by the prosecution by always placing positive evidence on record. 37 Court is not precluded from inferring from the attendant facts and circumstances of the case about the existence of criminal conspiracy. Expecting positive evidence to be placed by prosecution is impermissible in each and every case as direct evidence for proving the criminal conspiracy is seldom available. It is settled principles of law that conspiracy would be hatched in secrecy. 55. View of this court in this regard is fortified by the judgment of Apex Court Mohd. Khalid vs. State of West Bengal reported in (2002)7 SCC 334, wherein Hon’ble Apex court has accepted the principles of law enunciated by the constitution bench of the Hon’ble Apex Court in the case of Kehar Singh vs. State (Delhi Administration) reported in (1988)3 SCC 609. 56. Keeping in the background the principles stated in the aforesaid decision, when the material evidence on record in the case on hand is analyzed but for the issuance of certificate by accused No.6 (A.N. Keshava Murthy), loan application could not have been processed. 38 57. It is equally settled principles of law that each and every conspirator need not know the entire sketch or the scheme where the fraud has taken place. But for the role played by a particular accused in the scheme or the sketch is not accomplished, then each of such person is liable for the entire scheme or the sketch where illegal activity has taken place. Therefore, argument put forth on behalf of accused No.6 that he is no way responsible for the alleged fraud cannot be countenanced in law. 58. Thus, on cumulative consideration of materials on record, it is found that role of accused No.1 to 4 and 6 being public servants is substantially established by placing overwhelming evidence on record. 59. However, a feeble attempt is made by Sri Kiran S. Jawali and Sri Nagendra Naik, representing the public servants that actual money has not flown out of bank but the proceeds in the loan application is appropriated towards the loan accounts of the individual applicants. Therefore, there is no wrongful loss caused to the bank and corresponding wrongful 39 gain either to the accused or beneficiary. As such, offence under Section 420 IPC is per se not attracted in the facts and circumstances of the case. Such an argument cannot also be countenanced in law inasmuch as a public servant, his loyalty should be towards the bank and not towards erring/defaulting customers. 60. It is pertinent to note that IRDP scheme was meant to help the farmers in obtaining the loan and subsidy from the bank for purchasing the cattle required for agricultural operations to augment their income. Such a scheme should not be mis-utilized so as to regularize the defaulted accounts even assuming the defence of the public servants is to be accepted for the sake of arguments alone. 61. Under such circumstances, the argument put forward on behalf of appellants that appellants are to be acquitted for all the offences by setting aside impugned judgment cannot be countenanced in law. 62. However, when it comes to the question of convicting accused Nos.1, 2, 4 and 6 for the offence punishable 40 under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act is concerned, material evidence are not sufficient to maintain the conviction of the aforesaid accused persons for the offence punishable under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act aforesaid offences. 63. Prosecution evidence does not conclusively establish the ingredients to attract the offence punishable under Sections 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, inasmuch as what is the pecuniary advantage that the public servants have derived in the transaction. Oral evidence and documentary evidence in this regard fall short of required ingredients to maintain the conviction of the appellants. 64. Therefore, while maintaining conviction of accused No.1, 2, 4 and 6 for offences punishable under the Indian Penal Code, the conviction of the accused No.1, 2, 4 and 6 for the offence punishable under Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, needs to be set-aside. 65. In view of foregoing discussion, point Nos.1 and 2 41 are answered partly in the affirmative. REGARDING POINT No.3: 66. Accused Nos.1, 2 and 4 have filed the affidavits as referred to supra. 67. This court having set-aside the conviction of accused No.1, 2, 4 and 6 for the offence punishable under Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, for the remaining Indian Penal Code offences, there is no prescribed minimum punishment. 68. Admittedly the appellants are in advanced age in their life. Incident has taken place in the year 1994, directing the appellants to undergo imprisonment for the Indian Penal Code offences at this distance of time would act harsh to the appellants especially they being the first time offenders. 69. Therefore, if the sentence of imprisonment is set aside by enhancing the fine amount in a Sum of Rs.50,000/- each for the Indian Penal Code offences ends of justice would be met. Accordingly, point No.3 is answered partly in the 42 affirmative. Regarding Point No.4: 70. In view of finding of this Court on point Nos.1 to 3, following order is passed:

Decision

ORDER (i) Criminal Appeal Nos.653/2011, 587/2011, 596/2011, 598/2011, 611/2011 and 666/2011 are allowed in part. (ii) While maintaining the conviction of the accused No.1, 2, 4 and 6 who are appellants in Crl.A.Nos.587/2011, 596/2011, 653/2011 and 611/2011 respectively, for the offences punishable under Sections 120B, 420, 468, 471, 477A of the Indian Penal Code, accused Nos.1, 2, 4 and 6 are acquitted for the offence punishable under Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988. (iii) Consequently, sentence of the trial court is modified 43 as under: (a) Sentence of imprisonment ordered by the learned Trial Judge for the aforesaid offences is hereby set-aside and appellants/accused No.1, 2, 4 and 6 to 8 in Crl.A.Nos.587/2011, 596/2011, 653/2011, 611/2011, 598/2011 and 666/2011 are directed to pay enhanced fine amount in a sum of Rs.50,000/- each on or before 30.03.2025, failing which they shall undergo simple imprisonment for a period of one year. (b) Office is directed to return the Trial Court Records with copy of this judgement for issue of modified conviction warrant. (V. SRISHANANDA) JUDGE Sd/- MR

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