Criminal Appeal No. 95 of 1998 · Kerala High Court · 2007

CRA.95& 116/98 -2-months each. Accused No.3 stands sentenced to undergorigorous imprisonment for a period of one year for the offenceunder Section 10 of the Act and rigorous imprisonment for aperiod of two years each for the offence under Sections 13(2)read with Section 13(1)(d) of the Act and Section 120-B and 420I.P.C. and to pay a fine of Rs.2 lakhs for the offence underSection 420 I.P.C. and in default to undergo rigorousimprisonment for 20 months. The amounts recovered from A1and A2 were ordered to be confiscated and adjusted towards thefine imposed. The fine, if realised is to be paid to Pws.1 and 7 inequal proportion.2. The prosecution case is that A1 to A3 conspired forunlawful gain and managed to obtain a sum of R.3,00,000/-each from Pws.1 and 7 representing that they shall obtainadmission through the Chief Minister's quota for Pws.2 and 13,the sons of Pws.1 and 7 respectively for the M.B.B.S.courseduring August 1993 and June 1994. PW3 was then working asAdditional Private Secretary to the then Chief Minister Mr. K. CRA.95& 116/98 -3-Karunakaran.3. The evidence adduced in the matter consisted of thetestimony of Pws. 1 to 27, Exts.P1 to P26, C1 and Mos.1 to 31. 4. Accused No.3 is no more. He died during the pendencyof the proceedings herein and his widow has applied forpermission to continue the appeal vide Crl.M.A.No.10297/2006. 5. Pws.1 and 2, 7 and 13 have provided the directevidence with respect to the transaction involved. It is theversion that as they failed to get back the amounts paid afterthe undertaking by A1 to A3 did not materialise. PW1 lodgedExt.P1 F.I.S.on 5-9-1994. Subsequently the Director General ofPolice transferred the case to the Crime Branch . Thereafter theprovisions under the Act were also incorporated and theGovernment issued special order empowering PW27 thenworking as Dy.S.P. in the Crime branch to proceed with theinvestigation. 6. The factthat A3 was then working as AdditionalPrivate Secretary to Chief Minister is proved through PW23, the CRA.95& 116/98 -4-then Under Secretary in the G.A.D. A3 , the DeputyCommandant, Special Branch C.I.D. was deputed to the PersonalStaff of the Chief Minister. Ext.P15 is the sanction order toprosecute A3 which has been proved through Pw2, senior gradeassistant in the Home Department. The above facts were notdisputed in the appeal. Pws.1 and 7 are relatives and both ofthem were working abroad and quite well off. It has come out inevidence that PW1 was in the United States and PW7 inAbudhabi. PW1 wanted his son who is PW2, who had passed outin the XII Std. from Al Uthuman School at Kazhakoottam andhad appeared for entrance examination for M.B.B.S.and wasawaiting for results. It is the case that in July 1993, A2 came tothe house of PW1 and promised to arrange seat for PW2 in theMedical College, Thiruvananthapuram from the quota of the ChiefMinister and explained that it can be arranged through A3, whois the Private Secretary to the Chief Minister for a sum of Rs.5lakhs and that A3 can be contacted through A1. He assuredPws.1 and 2 that there is nothing that could not be done in CRA.95& 116/98 -5-Kerala if Chief Minister Mr. Karunakaran wanted it. So acting onthe promise of A2 PW1 arranged the amount and on 9-9-1993along with his wife and PW2 went to the house of the 2ndaccused and along with A2, they met A1 and Rs.3 lakhs wasgiven to them. A1 gave a cheque for Rs.2 lakhs to PW1 assecurity. PW1 was told that there has to be an interview beforeA3 and the mark list of XII Standard and photocopy of the hallticket of the entrance examination should also be brought. It isthe evidence of Pws. 1 and 2 that on 10-9-1993, PW1 along withhis wife and PW2 went to the house of A2 and along with A2they went to the house of A1 and all of them went to the houseof A3. A3 examined the mark list and remarked that the marksare good and said O.K. A3 also collected mark list and hallticket. Later when the results were published the name of PW2was not in the list. When contacted, A2 assured that the namewould be in the supplementary list. A2 also handed over acheque for Rs.one lakh and he mentioned that the above sumrepresented the commission to A1 and A2. It was also told that CRA.95& 116/98 -6-Rs.2 lakhs was with A3 and the same will be returned whenrequested. A2 also promised that PW2 would be get a seat inthe first preference in the following year. Believing the words ofA2, PW1 asked A2 to retain the amounts with them. Butsubsequently in March 1994, PW2 got admission in B.D.S inBangalore. A1 assured that the amount will be returned by 20-9-1994. Pws.1 and 2 have graphically described the abovedetails in uniform.7. PW7 has testified that he contacted PW1 when throughPW1 the wife of PW7 knew that PW2 got admission for B.D.S.and she made enquiries with PW1 as to how he obtained thesame. It was how the wife of PW7 got to know of the deal withA1 to A3. PW1 introduced A2 to the wife of PW7 and A2 cameto the house of PW7 in May 1994 and offered to arrange a seatfor M.B.B.S.for their son (PW13) outside Kerala for a sum ofRs.10,00,000/-. PW7 returned from abroad on 2-6-1994. On thenext day, A2 came to his house and repeated the offer but PW7was not inclined and informed that his son has applied for CRA.95& 116/98 -7-entrance examination in Tamil Nadu, Karnataka and Kerala. Onthe next day, PW1 came to the house of PW7 and mentioned thedetails of the connection of A1and A2 with A3 and that the seatfor his son (PW2) could not be arranged as the payment wasmade late. Later A2 came to the house of PW7 and offered aseat in Kerala itself for a sum of R.5.5 lakhs. Thereafter, the 2ndaccused along with first accused went to the house of PW7 andA1 was introduced as Personal Assistant of A3. PW7 was toldthat there were about 5 to 6 seats in the Chief Minister's quotaand right now only one is in balance and the same can bearranged for R.5.5 lakhs. PW7 insisted for hearing from A3 as tothe details. A1 arranged the meeting and an interview on 8-6-1994 at 9 a.m. On the appointed time PW7, PW13, his son andA1 went to the house of A3. A3 enquired PW13 as to how hehad performed in the pre-degree examination and whether hehas got the hall ticket of the entrance examination andrecollected that in the last year he had arranged a seat foranother student who unfortunately failed in the pre-degree CRA.95& 116/98 -8-examination and that the same should not be repeated in thecase of PW13. As to the payment etc. he directed PW7 to settlewith A1. On 9-6-1994 Pw7 withdrew Rs.3 lakhs from his fixeddeposit in British Bank of Middle East at Vellayambalam.Thereafter, PW7 along with Pws.1 and 13 went to the house ofA1 and in the presence of A2,the amounts were handed over. A1issued cheque for the above amount. In the evening PW7 alongwith PW1, and A1 went to the house of A3 and amount wastaken in a bag (vegetable bag). Pws.1 and 7 were made to sit inthe car and A1 went inside the house and returned with theempty bag. Subsequently on 15-6-1994 when the hall ticket forentrance examination was obtained a copy was given to A1 whotold that the same will be given to A3. Subsequently Pw7 wentto the house of A3 along with copy of the hall ticket. But A3 toldthat he has already received the same.8. Subsequently, A1 came to the house of PW7 and invitedPW7 and family to his proposed marriage and also told that ChiefMinister also will be present. A1 sought for a loan of Rs.25,000/- CRA.95& 116/98 -9-for the marriage purpose and it was told that the amount can beadjusted in the balance amount to be paid towards theM.B.B.S.seat. On the following day PW7 paid the amount and A1issued the cheque for the same. Later when results werepublished on 5-8-1994, the name of PW13 was not in the list.Then both PW1 and PW7 sought for return of the amounts. Theymet A3 who directed them to settle the matter with A1. It waspromised that the amount will be returned within two or threedays which did not materialise. Subsequently when they went tothe house of A3 and informed him that a complaint will be filedbefore the Chief Minister. But A3 replied that nothing could bedone and the matter can be settled with A1. On 1-9-1994, Pws.7and 1 went to the office of A3 and then A3 exhibited totalignorance of the incidents and rather threatened them that theyshould not come to the office in future. That was how thecomplaint happened to be filed before the Circle Inspector ofPolice, Peroorkada. Subsequently they instituted civil case aswell, i.e. Exts.D4 and D5 after issuing notices, i.e. Exts.D1 to D3. CRA.95& 116/98 -10-As already noted Pws.1, 7, 12 and 13, the parents and the sonswho subsequently got admission for B.D.S.at Bangalore havetestified uniformly. 9. It is the defence of A1 and A2 that they used to borrowamounts from several persons at a lower interest rate and lendthe same on higher interest and that it was how the amountswere taken from Pw2 and PW7. According to A2, PW2, the sonwas known to him earlier and without the knowledge of PW1,PW2, the son used to lend money. According to A3, when Mr.Jayaram Padickal was the D.G.P., the next senior most officer,Madhusoodhanan had some misunderstanding with him and whensubsequently Madhusoodhanan became the D.G.P., he hasfoisted the present case to wreck his grouse against A3.According to him, he is totally innocent in the incident. 10. PW11, the Manager of Muthoot Bankers,Kesavadasapuram has testified that PW1 and his wife had a fixeddeposit for Rs.30,000/- in the above institution vide Ext.P8 F.D.receipt. The amounts were invested to be repaid with 14% CRA.95& 116/98 -11-interest. PW11 has stated that the above F.D. was encashed on8-9-1993. Ext.P10 is the ledger extract. The above documentswere taken into custody as per Ext.P8 mahazar. Pw10, thePartner of Malayil Bankers, Medical College Branch has testifiedthat Pw1 and his wife had two F.D.Rs.for Rs.25,000/-each withMalayil Bank which are Exts.P5 and P6 which have taken intocustody as per Ext.P4 mahazar and the amounts were depositedon 18% interest. The same were prematurely encashed inSeptember 1993. PW15, the Manager of Federal Bank,Pongumoodu Branch has testified that PW1 had N.R.I. S.B.account in the name of his wife and from the above on 8-9-1993 Rs.2 lakhs was withdrawn. Ext.P11 and P12 are thestatements of accounts of Mrs.Annamma Thomas, wife of PW1.Hence, altogether a sum of Rs.2,80,000/- was withdrawn fromthe above three institutions on 8-9-1993. It was on 9-9-1993that the amounts were plaid to the accused. 11. PW27, the investigating officer has proved Ext.P2computer slip from the British Bank of Middle East, CRA.95& 116/98 -12-Vellayambalam as per which PW7 has withdrawn a sum of Rs. 3lakhs on 9-6-1994 that day on which the amount was paid to theaccused.12. PW26, the Circle Inspector, Peroorkada as per Ext.P19(a) confession statement of A1 on 6-9-1994 recovered twobundles of 500 notes each containing 98 in number, altogether asum of Rs.98,000/- from the house of A1. He also took intocustody of Exts.P13 and P14 assignment deeds of 1993 in favourof A1. The currency notes in the bundle were new and were ofcontinuous serial numbers. Two notes each were seen taken outfrom each bundle. PW19, who is the assignor in Ext.P14assignment deed has testified that six cents and 3.5 cents ofproperties were assigned to A1 at the rate of Rs.1500/- per cent.Ext.P14 was executed by his aunt and the children and PW19 isthe witness in the sale. The sale consideration would work outto Rs.14,250/-. The court below has noted that usually thecorrect amount would not be mentioned in the sale deed,obviously to save stamp duty. Ext.P13 is the another CRA.95& 116/98 -13-assignment deed executed by PW17 as the power of attorneyholder of his brother was not taken into consideration by thecourt below as it is dated prior to the alleged transaction in thepresent case.13. PW26 as per Ext.P2(a) confession statement of A2 on6-9-1994 also recovered Rs.30,000/- from the house of A2,i.e.MO.1 series, MO.2 series and MO.3 series. He also recoveredMos.4, 7, 10 and 11,signed blank cheques and Mos.5,6,8, 9, 12 &13 signed blank stamp papers from the house of A2. 14. Pw9 is a person who has borrowed Rs.15,000/- fromthe 2nd accused for a lesser rate of interest so as to settle hisdebt in connection with the marriage of his sister. Ext.P9 is theblank cheque leaf signed by him and Exts.P8 and P9 are twosigned stamp papers. The above is the evidence of PW9. PW8,an Architect and neighbour of the 2nd accused has testified thathe borrowed a sum of Rs.15,000/- in September 1993 andanother Rs.50,000/- and issued MO.10 and MO.11 blank signedcheque leaves and Mos. 12 and 13 signed stamp papers. He has CRA.95& 116/98 -14-repaid Rs.7,000/- and is paying interest at the rate of Rs.10% .PW12 who is said to be an Electrician has borrowed Rs.30,000/-to furnish his office for which he has given MO.4 cheque andMos.5 and 6 signed stamp papers. The above evidence wouldindicate as noted by the court below, that a sum ofRs.1,10,000/-, altogether was advanced to the above persons bythe 2nd accused subsequent to the receipt of the amounts fromPws.1 and 7. It is the version of the above witnesses that theinterest rate was low. The court below has rightly observed thatPW1 has withdrawn the amounts which were deposited at 14%interest and 18% interest and given to the accused and hencethe claim of A1 and A2 that the amounts used to be given tothem on interest by the complainants and that they used toconduct money lending business cannot be believed at all.Further even according to A1 and A2, they do not have anyostensible source of income. I find that the evidence of Pws.14and 16 as to the activities of the 2nd accused in receiving theamounts making believe that he can get things done including CRA.95& 116/98 -15-the transfer of Associate Professor of Bio-Chemistry at MedicalCollege, Thiruvananthapuram making use of his clout with theoffice of the Chief Minister, I find is somewhat irrelevant as whatis material is only the conduct of the accused with respect to thecomplainants. 15. A1 and A3 have got close connection is sought to beproved from the photographs and negatives obtained on thesearch of the house of A1 by PW25. Mos.16, 17, 18, thephotographs and MO.19 negative were duly proved by PW24, thephotographer and supported by the evidence of Pw4, aneighbour, which would show the presence of A3 at themarriage of A1. PW21, the phtographer and PW18, theviedeographer have testified that the newly married A1 and hiswife had a photo session with the Chief Minister at the residenceof the Chief Minister. It is further pointed out that Pws.18 and 21are related to A1. 16. The contention of the defence based on Exts.D1 to D5,lawyer notice and suits filed by Pws.1 and 7 respectively, i.e. CRA.95& 116/98 -16-Exts.D4 and D5, were stressed by the defence as the allegedtransactions in the above proceedings are non-repayment of theamounts borrowed. It is the version of Pws.1 and 7 that DW1,the Advocate, got them signed in certain blank papers and thatthe allegations in the lawyer notice and the pleadings in the suitdo not reflect the real facts. DW1, the lawyer has stated thatthe notices were sent on instructions but he claimed privilegeand did not reveal the details of the instructions. As rightlypointed out by the court below, Exts.P1 and P27 were notconfronted with Exts.D1 to D5. Further Exts.D1 to D3 are dated14-9-1994, Ext.D4 is dated 1-10-1994 and Ext.D5 is dated 30-10-1994. On 29-9-1994, the statements of Pws.1 and 7 wererecorded by the Additional Judicial First Class Magistrate underSection 164 Cr.P.C. The F.I.R. was registered on 5-9-1994.Exts.D1 to D5 is dated about more than one month of the abovedates. Hence, the above would indicate that the allegations inthe prosecution case is the correct version and not the factspleaded in Exts.D1 to D5. Exts.P23 to P26 are the attested CRA.95& 116/98 -17-copies of the cheques issued by A1 and A2 which were takenfrom the civil proceedings and proved by PW27, the investigatingofficer. MO.14 is the pass book of A2 of the Central Bank of Indiarecovered by Pw25. Ext.P25 is the cheque book issued by A2drawn on Central Bank of India.17. The fact that the amounts were withdrawn by PW1 andPW7 on the day prior and on the very date of payment of theamounts to A1 to A3 is a very strong factor that goes a long wayto establish the case set up by the prosecution. In the light of the above evidence adduced and in view ofthe fact that the evidence of prosecution witnesses standsunimpeached, I find that the conviction entered into by theSpecial Judge is only to be upheld. As noted above, A3 is nomore and his widow has been permitted to proceed with theappeal. I find that, in the circumstances, it is not necessary toburden the widow with the fine imposed. Hence, the sentenceimposed on A3 is set aside. Counsel for Accused 1 and 2 haspleaded for leniency pointing out that for more than 10 years, CRA.95& 116/98 -18-they were facing the criminal proceedings and living under theshadow of impending imprisonment. The proceedings startedfrom September 1994. In the circumstances, I find that thesentence of imprisonment is to be avoided. A1 and A2 aresentenced to undergo imprisonment till the rising of the court andto pay a fine of Rs.2,00,000/- each for the offence under Section420 I.P.C. and in default to undergo simple imprisonment for 12months each. The recovered amounts from the houses of A1and A2 would be adjusted towards the fine amounts as orderedby the court below. No separate sentence is awarded for the restof the offences. The order of the court below that the fineamount, if realised ,will be paid to Pws.1 and 7 equally issustained. Accused 1 and 2 is granted six months time to remitthe fine amount. They shall appear before the Special Judge,Thiruvananthapuram on 14-3-2008 to receive sentence. TheCrl.appeals are disposed of accordingly. ks. K.R.UDAYABHANU, JUDGE CRA.95& 116/98 -19-K.R.UDAYABHANU, JCRL.A. NOS.95 & 116 OF 1998JUDGMENT 13-9-2007