CBI Vs. P I BABU

JUDGEMENT

(1.) This is an appeal against an order of acquittal. On 21.12.1993, one P.V. Mathew alleged to be aged 47 years, son of Varkey residing at Palliparambu, Muthalakodam, Thodupuzha filed Ext. P1 application before the Syndicate Bank, Thodupuzha Branch wherein the respondent was the Manager, seeking a loan of Rs. 25,000/- as an artisan. Yet another application, Ext. P3 was filed for opening a Savings Bank Account. In pursuance to Ext. P1 application, loan of Rs. 25,000/- was grated by the respondent. In pursuance to Ext. P3, a Savings Bank A/c was opened. The loan amount was transferred to the Savings Bank A/c and the amount was withdrawn on 23.12.1993 through Ext. P6 withdrawal slip. The appellant got source information that the applicant shown in Ext. P1 is a fictitious person and that the respondent abusing the office, fraudulently forged the loan application as well as application for opening Savings Bank A/c in the name of the fictitious person and using those forged documents, the loan amount, which was in trust with the respondent, was misappropriated and thereby committed breach of trust and that the respondent, who was a public servant as defined under Section 2(c) of the Prevention of Corruption Act, 1988, (herein after referred to as 'PC Act'), had undue pecuniary advantage. PW 16, the Inspector, CBI registered a case as crime No. RC 8(A)/95/CBI/SPE) for offences under Sections 409, 468, 471 IPC and under Section 13(2) read with 13(1)(c) and 13(1)(d)of the PC Act. PW 16 took over the investigation. He questioned the witnesses, recorded their statements and seized the documents. On completing the investigation, PW 16 arrived at a conclusion that the respondent had committed offences under Sections 409, 465, 467, 471 IPC and under Section 13(2) read with 13(1)(c) and 13(1)(d) of the PC Act. Thereupon, he filed a final report, alleging the above said offences, before the Special Judge SPE/CBI-II, Kochi. The learned Special Judge took congnizance and issued process responding to which, the respondent entered appearance. He was furnished with copies of the final report and the connected documents. Thereafter, the prosecution and the respondent were heard. On finding that there are materials to send the respondent for trial, a charge for the said offences was framed. When read over and explained, the respondent pleaded not guilty. Hence he was sent for trial. On the side of the prosecution, PWs 1 to 16 were examined. Exts. P1 to P22(a) were marked. During the course of cross examination, Exts. D1 to D6 were marked on the side of the defence. After closing the evidence for the prosecution, the respondent was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The respondent admitted his official status, but denied the incriminating evidence. Further stated that he was falsely implicated at the instance of his successor, who was examined as PW 1. No defence evidence was let in. The learned Special Judge on appraisal of the evidence on record arrived at a conclusion that the respondent had committed forgery, misappropriation and criminal misconduct by using the forged documents as genuine. But it was found that the prosecution had not succeeded to prove that PW 13, who accorded sanction to prosecute the appellant, was the competent authority at the time when Ext. P19 sanction order, copy of which was marked as Ext. P16, was issued. Consequently, the respondent was acquitted. Assailing the above order of acquittal, the prosecution has come up in appeal. I heard Advocate Sri. P. Chandrasekharan Pillai, the learned standing counsel for the CBI as well as Advocate Sri. P. Vijayabhanu, the learned senior counsel appearing for the respondent and perused the documents and evidence.

(2.) PW 13 would depose that in November, 1995 he was the Deputy General Manager (officiating) posted at the Zonal office of the Syndicate Bank, Trivandrum and as such he was the Zonal Head of the Bank and that in that capacity he was the authority competent to remove the respondent from the office and that the records relating to the investigation including the statement of the witnesses and the documents seized were produced before him and after examining the documents, he accorded sanction to prosecute the respondent and that Ext. P16 is the copy and Ext. P19 is the certified copy of the order according sanction to prosecute the respondent. Though PW 13 was subjected to a very lengthy and searching cross examination, no material was disclosed to come to a finding that as on 14.12.1995 when the sanction to prosecute the respondent was accorded, PW 13 was not the authority competent to remove the respondent from the office or any other person was holding that post. But the learned Special Judge arrived at a finding against the prosecution, basing upon Ext. D6, a communication issued on 14.3.1995 by another Deputy General Manager and disciplinary authority. Though Ext. D6 was not seen confronted to PW 13, in cross examination it was suggested that in January, 1995, V.M. Kini was the Deputy Manager. PW 13 had answered affirmatively. There is no suggestion that as on the date of Ext. P16/P19, PW 13 was not the Deputy Manager or someone else was the Deputy Manager. Ext. D2 dated 11.10.1994 would show that PW 13, the then Assistant General Manager was put in charge of the Deputy General Manager. Thereafter, by Ext. P18 order dated 24.10.1994, PW 13 was ordered to officiate as Deputy General Manager. According to the respondent, subsequently PW 13 was transferred and on the date of Ext. D6 someone else was working as Deputy General Manager. Thereafter, no order appointing PW 13 as Deputy General Manager was produced by the prosecution. Therefore, PW 13 was not the competent officer. The Special Judge, while arriving at a conclusion that someone else was holding the post of the Zonal Head and therefore, there is no valid sanction to prosecute the respondent, omitted to note that the evidence of PW 13 that as on the date of Ext. P16/P19, PW 13 was the Deputy General Manager and Head of the Zonal Office at Trivandrum remains unimpeached. There is no suggestion, as stated earlier, to PW 13 that as on the date of Ext. P16/P19, PW 13 was not the Head of the Zonal Office. Of course, there is a vague suggestion in cross that he was not the authority competent to accord sanction to prosecute the appellant. That suggestion would not affect the credibility of the evidence of PW 13. On a critical analysis of the evidence of PW 13 and Ext. P16/P19, I find no reason at all to disbelieve the evidence of PW 13 regarding his status on the date of Ext. P16/P19 as the Head of the Zonal Office of the Syndicate Bank under whom the respondent was employed. I find that Ext. D6 dated 14.3.1995 would no way belie the evidence of PW 13 regarding his status as on 14.12.1995. In prosecution under the PC Act, it is not necessary to produce the order appointing the sanctioning authority. When the sanctioning authority was examined in trial and had given umimpeached evidence that he was the authority competent to accord sanction, his evidence cannot be rejected for the non production of the order appointing the sanctioning authority or for the reason that the defence had produced a document to show that months back of the sanction order, someone else was holding the post. In the absence of evidence to show that someone else was the Head of the Zonal office as on the date of Ext. P16/P19, I find that the Special Judge had gone wrong in giving reliance to Ext. D6 to invalidate the sanction accorded to prosecute the respondent. I further find that from the evidence of PW 13 coupled with Ext. P16/19, there is convincing evidence to the effect that on the date of Exts. P16/P19, PW 13 was the Head of the Zonal Office of the Syndicate Bank at Trivandrum and as such he was the authority competent to remove the respondent from service as per Ext. P 17 regulation. The evidence of PW 13 would show that he had verified the statement of the witnesses and the report of the investigation and accorded sanction to prosecute the respondent. I find no good reason to reject that evidence of PW 13. Therefore, reversing the finding of the Special Judge, I find that Ext. P16/19 order according sanction to prosecute the respondent was duly issued by PW 13 in his capacity as the disciplinary authority and it is a valid sanction order.

(3.) The fact that in pursuance to Ext. P1 loan application, a sum of Rs. 25,000/- was sanctioned by the respondent in favour of the applicant shown therein and the said amount was withdrawn is not at all disputed. In the nature of the defence, the only point that arises is whether the applicant in Ext. P 1 loan application is a fictitious person or not. The Special Judge, referring to the evidence of PWs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 12, as mentioned earlier, arrived at a conclusion that the signature in the loan application and the connected documents including the withdrawal slip were forged by the respondent and using those documents as genuine the amount was withdrawn by the respondent and appropriated the same.