V.Palanivel & Ors vs State by Inspector of Police

Rank of

the

accused",Conviction under Section,Sentence imposed by the trial Court,

A1 to

A5","Under Sections 120B, 420, 406, 467, 467 r/w 471,

419, 467, 467 r/w 471 and u/s 13(2) r/w 13(1)(d)

of PC Act, 1988","To undergo RI for 2 years to pay a fine of Rs.5,000/- i/d to undergo RI for 6

months",

A4,Under Section 420 IPC,"To undergo RI for 4 years and to fine of Rs.5,000/- i/d to undergo RI for 6

months.",

A2,Under Section 419 IPC,"To undergo RI for 3 years each and to pay a fine of Rs.5,000/- i/d to undergo RI

for 6 months",

A3,"Under Sections 406 IPC and under Section 467,

467r/w 471 IPC","To undergo RI for 3 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6

months; and to undergo RI for 4 years and to pay a fine of Rs.5,000/- i/d to

undergo RI for 6 months",

A5,"Under Sections 467, 467 r/w 471 IPC each","To undergo RI for 4 years each and to pay a fine of Rs.5,000/- i/d to undergo RI

for 6 months",

A1,Under Section 13(2) r/w 13(1)(d) of PC Act,"To undergo RI for 2 years and to pay a fine of Rs.5,000/- i/d to undergo RI for 6

months.

The sentence imposed on him shall run concurrently. The sentences imposed in

CC.No.61/2004 and C.C.No.62/2004 shall run concurrently along with the

sentence imposed in this case.",

Further, he contended that the sanction order Ex.P1 accorded by PW-1[Mr.B.R.Bhat] is invalid and the trial Court is ab nitio void. PW-",,,

1[Mr.B.R.Bhat] is not a compentent authority to remove from service. Therefore, the sanction accorded by PW-1 [Mr.B.R.Bhat] who is",,,

incompetent person in the eye of law is invalid. Therefore, the sanction to prosecute his accorded without application of mind and without",,,

appreciation of entire records, led to miscarriage of justice.",,,

The borrower had opened his account on proper introduction and his loan application has been processed in the manner known to law. The,,,

officer, who has investigated, has admitted that A1[J.S.Prabhu] has conducted pre-sanction and post-sanction inspection. The visit report and",,,

diary maintained by the first accused will corroborate the said fact. Since the prosecution has failed to produce the visit report and diary, grave",,,

prejudice is caused to the appellant. Since the loan was sanctioned on perusal of documents produced by the borrower and after post-sanction,,,

inspection and getting the legal opinion from the panel lawyer, the finding of the trial Court that the appellant has misconduct himself in sanctioning",,,

the loan, does not carry any merit. The evidence of DW-3[Mr.Davis Jose Koola] has not been properly appreciated by the trial Court, contrarily,",,,

the evidence of postal employee which is not a conclusive proof, has been heavily relied on by the trial Court to hold that the guarantor and the",,,

borrower are fictitious persons. The evidence of DW-3[Mr.Davis Jose Koola], Senior Manager of Corporation Bank, Tambaram, Sanatorium",,,

Branch, who has deposed that in view of the compromise entered between the borrower and the bank, the entire due has been settled to the bank,",,,

has not been given due weightage by the trial Court while deciding the case.,,,

Palanivel[A2] and Dakshinamurthy[A4] who are the appellants Crl.A.No.267 of 2009 challenge the trial Court verdict on the ground that the,,,

trial Court has miserably failed to consider that the loan availed by Dakshinamurthy [A4] under beneficial scheme introduced by Union of India and,,,

the same had been fully utilized for the lawful purpose and therefore, there is no illegality and irregularity in the manner and scope of loans applied.",,,

The appellants are not guilty of any offence. There is no impersonation proved and false case has been registered the appellant as if the appellants,,,

and others had committed the offence of criminal conspiracy, criminal breach of trust and cheating. When the entire loan amount has been settled",,,

by the borrower, the charge framed against the appellants is neither maintainable in law nor on facts. The documents produced along with the loan",,,

application were not proved to be forged document and there was no intention on the part of the loanee to cheat or deceive the complainant bank.,,,

Therefore, in the loan transaction, no criminal liability can be fastened against the accused.",,,

Gunasekaran[A3] appellant in Crl.A.No.285 of 2009 has contended that no offence is made out by the prosecution to charge the accused,,,

person under Prevention of Corruption Act, 1988. When there is no material evidence against the appellant for the offence of criminal conspiracy,",,,

breach of trust and forgery, the trial Court, without any material and specific finding against the appellant had concluded that the appellant herein",,,

had privy to A1[J.S.Prabhu] and A2[Palanivel] in accomplishment of conspiracy. Merely relying upon the evidence of PW-16,,,

[Mr.G.Panchacharam], Rubber Stamp Maker, the trial Court had held the appellant guilty of the crime. When due has been discharged in toto, the",,,

trial Court ought not to have given any credence to the evidence of PW-16[Mr.G.Panchacharam]. The trial Court failed to note that for the loan,,,

availed in the year 2002, the bank has given a complaint only on 19.07.2002. The investigation got completed and the case is taken on file only in",,,

the year 2004. The unexplained inordinate delay in launching the prosecution enures the valuable right to the appellant. Since the loan has already,,,

been discharged, nothing is to hold the appellant guilty of cheating.",,,

It is also contended by the appellant that the opinion of GEQD officials is not the conclusive proof. Without specimen signature and hand,,,

writing of the appellant, the charge has been laid against the appellant for forgery and fabrication. The entrustment of title deed by PW-14",,,

[Tmt.G.Koysalya] with the appellant is not a proof for misuse of record and impersonation.,,,

Per contra, the learned Special Public Prosecutor for CBI Cases submitted that the scheme of conspiracy conspired by the accused persons",,,

has been clearly established by the prosecution. Therefore, their evidence, particularly. the evidence of PW-3 [Mrs.P.Janaki], has categorically",,,

stated that she is the owner of the house bearing Door No.33, Siddivinayagar Koil street(SV Koil Street), Tambaram, Sanatorium and no one had",,,

been let in evidence to run the business in the said premises much less Dakshinamurthy[A4], Proprietor of Vijaya Agency. It was A2[Palanivel],",,,

who was occupying a portion of the building for residential purpose and paying a rent of Rs.400/- initially and thereafter, enhanced to Rs.700/-.",,,

The property given as collateral security in the name of Tmt.Kousalya ammal was not given as security by Tmt.Kousalya ammal for the loan,,,

availed by Dakshinamurthy[A4]. PW-4[Mr.G.Ulaganathan], Village Administrative Officer of Vilakadupakkam had deposed that the chitta Exs.P3",,,

and P4 for S.Nos.160/1B and 160/1A respectively and sketch for the said property Exs.P5 and P6 are genuine documents, which indicates that",,,

one Mr.Kumaravel is the owner of S.No. 160/1A and one Mr.Duraisamy is the owner of S.N.160/1B and there is no building in the said land.,,,

While so, the deposit of title deed in the name of Tmt.Kousalya ammal for S.No.160/1A, showing her as guarantor for the loan availed by M/s",,,

Vijaya Agency, Proprietor Dakshinamurthy[A4] clearly proves that based on the forged document, the loan has been sanctioned. A1[J.S.Prabhu]",,,

as Branch Manager without proper inspection of the property and verification of the documents produced by the borrower had sanctioned loan of,,,

Rs.2.5 lakhs. The loan application[Ex.P10] along with the documents such as statement of profit and loss[Ex.P12], valuation certificate[Ex.P34],",,,

patta [Ex.P31], encumbrance certificate [Ex.P32], house tax receipt[Ex.P33] and the letter given by the borrower[Ex.P9] suggesting that he is the",,,

Proprietor of Vijaya Agency carrying on business at Door NO.33, S.V.Koil Street, are all proved to be forged documents by the prosecution by",,,

establishing that there was no entity by name M/s Vijaya Agency in the said premises and the guarantor Kousalya ammal is not the present owner,,,

of the property given as collateral security. The sale deed [Ex.P13] given as collateral security and the guarantee agreement alleged to have been,,,

executed by Tmt.Kousalya ammal, which is marked as Ex.P24 proved to be forged documents through Tmt.Kousalya ammal, who had denied the",,,

execution of any such document.,,,

The loan application and the records furnished by Dakshinamurthy[A4] were all proved to be fabricated through the concerned witnesses, who",,,

are supposed to issue citta, adangal, enjoyment certificate and encumbrance certificate. Furthermore, through the evidence of handwriting",,,

experts[PW-23] and [PW-24], the prosecution has relied upon [Ex.P74] opinion of the hand writing expert [PW-23] and his reasons for the",,,

opinion[Ex.P76] to show that the signatures found in [Ex.P9] letter of proprietorship signed as Dakshinamurthy[A4], statement of assets and",,,

liabilities [Ex.P19], statement of Dakshinamurthy [Ex.P20], take delivery letter[Ex.P23], guarantee agreement[Ex.P24], Deed of hypothication",,,

[Ex.P25] all are forged by A2[Palanivel] as if it has been signed by Dakshinamurthy[A4].,,,

Regarding the signature found in Ex.P26, the arbitration agreement, memorandum of deposit of title deeds alleged to have been executed by",,,

Tmt.Kousalya ammal. The handwriting expert[PW-23] in his opinion marked as Ex.P76 had deposed that the signatures found as Tmt.Kousalya,,,

ammal had been forged by Palanivel[A2]. Thus, the prosecution has proved through witnesses who are the officers of Panchayat Union, Revenue",,,

Department and Bank, that Dakshinamurthy[A4] was not running any business by name M/s Vijaya Agency in the given address. The documents",,,

such as encumbrance certificate[Ex.P32], Patta [Ex.P31] and house tax receipt [Ex.P33] are forged. PW-22 [Mr.P.Saravanan], President of",,,

Velankadupakkam Panchayat had deposed that house tax receipts are not issued by the Executive Officer of Panchayat but issued by the,,,

President. Sofar as house tax receipt[Ex.P33] is concerned, it is not issued by Velankadupakkam Panchayat. The signature found in the document",,,

is not his signature. It is also submitted by the learned Special Public Prosecutor for CBI Cases that Ex.P33 bearing No.15294 is being used by,,,

the accused person to avail the loan in the name of fictitious persons. Therefore, he contended that the prosecution has proved that the loan has",,,

been extended for the fictitious firm and equitable mortgage has been created by forgery. A2[Palanivel] in connivance with A1[J.S.Prabhu] had,,,

availed loan of Rs.2.5 lakhs by producing fabricated documents and opening the account in the name of M/s Vijaya Agency, Proprietor",,,

Dakshinamurthy[A4] getting the help of his friend Saravanan[PW-12] to sign as introducer for opening of the bank account. The owner of the,,,

house has deposed that she has not let the premises to Dakshinamurthy[A4]. Tmt.Kousalya ammal, whose name the title deed [Ex.P13] stands has",,,

deposed that she did not execute any document much less [Ex.P20] statement of assets and liabilities. [Ex.P26] deed of agreement for arbitration,",,,

[Ex.P28]memorandum of deposit of title deed. PW-6[Tmt.S.Indira] has deposed that the loan amount credited in the name of,,,

Dakshinamurthy[A4] had been utilised by A2[Palanivel] to purchase foreign exchange and travel ticket for his trip. Thus, the prosecution has",,,

proved beyond doubt that the loan sanctioned by A1[J.S.Prabhu] based on fake documents to fictitious firm had been utilized by A2[Palanivel] for,,,

which A3[Gunasekaran] had aided and assisted by getting the title deed of Tmt.Kousalya ammal under false promise that he will avail loan for her,,,

and the same has been utilized as collateral security for the said loan.,,,

Heard the learned counsels appearing for respective appellants and learned Special Public Prosecutor appearing for CBI Cases and perused,,,

the records.,,,

Point for determination:,,,

Whether the prosecution has proved the guilty of the accused beyond reasonable doubt?,,,

The Corporation Bank, Sanatorium Branch had advanced Rs.2.5 lakhs as loan to M/s Vijaya Agency, Proprietor Dakshinamurthy[A4]. The",,,

loan application is dated 20.02.2000 which is marked as Ex.P10. Along with the loan application, documents such as, application for non-priority",,,

trade advance[Ex.P11], profit and loss account of M/s Vijaya Agency [Ex.P12], revised return in the name of Vijaya Agencies submitted to sale",,,

tax department marked as Ex.P13, application for registration dealers Ex.P14, Income Tax return, rental agreement, statement of asset and",,,

liability, have been filed.",,,

In the loan application, Dakshinamurthy[A4] as borrower and Tmt.Kousalya ammal as guarantor had signed. The signature of Tmt.Kousalya",,,

ammal is found to be forged and this fact has been directly spoken by Tmt.Kousalya ammal, who was examined as PW-14. All other documents",,,

which has been accompanied with the loan application are found to be fabricated documents. There was no Vijaya Agency at Door NO.33,",,,

S.V.Koil Street at any point of time, this fact has been categorically proved through PW-3[Mrs.P.Janaki], who is the owner of the said premises.",,,

The application to the sales tax department, which is marked as Ex.P14, indicates that on 12.02.2000, Dhanamoorthy, S/o Ramalingam intended",,,

to carry on business in the name and style of Vijaya Agency at No.10, 1st Street, Jayanagar, Sanatorium. Ex.P13 is also dated 12.02.2000. The",,,

revised return submitted to sales tax department is in the name of Dhanamoorthy, No.10 1st street, Jayanagar, Sanatorium. However, in both the",,,

documents Exs.P13 and P14, it is signed as Dakshinamurthy[A4]. A1[J.S.Prabhu], based on this document, even without applying minimum care",,,

and caution, had sanctioned the loan to Vijaya Agency, Proprietor Dakshinamurthy[A4], carrying on business at No.33, S.V.Koil Street,",,,

Tambaram.,,,

It is very shock to note that there is no material evidence to show that Exs.P13 and P14 were really submitted to the Income Tax Department.,,,

Without verifying the said core fact, based on the alleged income tax return in the name of Dakshinamurthy, Proprietor, Vijaya Agency for the",,,

assessment year 1999-2000, the loan has been sanctioned. Likewise, every document which is accompanied for seeking loan on the face of which",,,

has inherent defect to point out the lease agreement which is perpetrated to have been executed by N.Kumar, S/o Nandagopal is for Door no.32,",,,

CV Koil Street. The date of agreement commences from 02.01.2000. Whereas the stamp paper itself had been purchased only on 28.02.2000.,,,

The asset and liability statement Ex.P19 also stands in the name of Dhanamoorthy, S/o Ramalingam. Therefore, the handwriting expert and his",,,

opinion, the prosecution has proved that A2[Palanivel] has forged the signatures of Dakshinamurthy as well as Tmt.Kousalya ammal, whose",,,

document has been shown as collateral security and she had been impersonated and the signatures had been forged besides the prosecution have,,,

also proved that the loan amount credited into the account of Vijaya Agency Proprietor Dakshinamurthy, had not been utilised for promotion of",,,

trade purpose for which the loan was sanctioned. But, it had been purely utilised by A2[Palanivel] for purchase of foreign exchange and air ticket",,,

for travel to Singapore. PW-15[Tmt.R.Hemalatha]had deposed that about the pay order challan favouring Sky Blue Travels for purchase of travel,,,

ticket and pay order challan for VKC Credit Forex Service Pvt.Ltd for purchase of foreign exchange from out of the the money stood in the credit,,,

of Vijaya Agency account No.10 of 2000. The statement of accounts of Vijaya Agency and loan account in the name of Vijaya Agency are,,,

marked as Ex.P68 and Ex.P69.Thus, overtact of A1[J.S.Prabhu] for granting loan to A4[Dhakshinamurthy] based on the forged documents",,,

produced by A2[Palanivel] in connivance with A3[Gunasekaran], is clearly proved through the over whelming evidence produced by the",,,

prosecution. A3[Gunasekaran] has obtained the title deed of Tmt.Kousalya ammal [PW- 14] and had given it to A2[Palanivel] for furnishing the,,,

same as collateral security for availing the said loan. A2[Palanivel] has impersonated and forged the documents as if Tmt.Kousalya ammal has,,,

signed the loan application, arbitration agreement, deposit of title deed etc. Thus, the overtact of A2[Palanivel] in committing and assisting the other",,,

accused in the commission of crime is proved beyond doubt.,,,

Rank of

the

accused",Conviction under Section,Sentence imposed by the trial Court,"Sentence modified by this

Court

A1 to

A5","Under Sections 120B, 420, 406, 467,

467 r/w 471, 419, 467, 467 r/w 471 and

u/s 13(2) r/w 13(1)(d) of PC Act, 1988","To undergo RI for 2 years to pay a fine of Rs.5,000/- i/d to

undergo RI for 6 months",Remains unaltered

A4,Under Section 420 IPC,"To undergo RI for 4 years and to fine of Rs.5,000/- i/d to

undergo RI for 6 months.","To undergo RI for 2 years.

No change in the fine

amount imposed by the trial

Court.

A2,Under Section 419 IPC,"To undergo RI for 3 years each and to pay a fine of

Rs.5,000/- i/d to undergo RI for 6 months","To undergo RI for 2 years.

No change in the fine

amount imposed by the trial

Court.

A3,"Under Sections 406 IPC and under

Section 467, 467r/w 471 IPC","To undergo RI for 3 years and to pay a fine of Rs.5,000/- i/d

to undergo RI for 6 months; and to undergo RI for 4 years and

to pay a fine of Rs.5,000/- i/d to undergo RI for 6 months","To undergo RI for 2 years.

No change in the fine

amount imposed by the trial

Court.

A5,"Under Sections 467, 467 r/w 471 IPC

each","To undergo RI for 4 years each and to pay a fine of

Rs.5,000/- i/d to undergo RI for 6 months","To undergo RI for 2 years.

No change in the fine

amount imposed by the trial

Court.

A1,"Under Section 13(2) r/w 13(1)(d) of PC

Act","To undergo RI for 2 years and to pay a fine of Rs.5,000/- i/d

to undergo RI for 6 months.",Remains unaltered