SHANTILAL MAGANLAL PANDYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS batch of three appeals arise out of the judgment and order of conviction and sentence dated 2-4-1987 rendered by the learned Special Judge, Ahmedabad in Special Case no. 13 of 1979 whereby the appellant-original accused no. 1 was sentenced to suffer R. I. for a period of two years and to pay fine of Rs. 5000/-, in default, R. I. for a period of six months for the offence punishable under Section 5 (2) read with Section 5 (1 (d) of the Prevention of Corruption Act, 1947 ("the Act" for short ). He was also sentenced to suffer imprisonment for a period of one year and to pay a fine of Rs. 2000/-, in default, to suffer R. I. for a period of three months for the offence punishable under Section 165 of the Indian Penal Code ("ipc" for short ). No separate sentence was imposed for the offence punishable under Section 161, IPC. The substantive sentences against the appellant-original accused no. 1 were also ordered to run concurrently. Similarly, the accused no. 2 was sentenced to suffer R. I. for a period of two years for the offence punishable under Section 120b read with Section 161, 165,420,471 of the IPC and also read with Section 5 (1) (d) read with Section 5 (2) of the Act. He was also sentenced to suffer R. I. for a period of five years and to pay fine of Rs. 25,000/- in default, to suffer R. I. for one year for the offence punishable under Section 420 read with section 120b of the IPC. He was also sentenced to suffer R. I. for a period of one year and to pay fine of Rs. 2,000/-in default, to suffer R. I. for a period of three months for the offence punishable under Section 471 read with Section 468 of the IPC. He was also sentenced to suffer R. I. for a period of one year and to pay fine of Rs. 2,000/-, in default, to suffer R. I. for a period of three months for the offence punishable under Section 471 read with Section 468 as well as read with Section 120b of the IPC. Likewise, the appellant-original accused no. 3 was sentenced to suffer R. I. for a period of two years for the offence punishable under Section 120b read with Sections 161,165,420 and 471 as well as read with Section 5 (1) (d) and 5 (2) of the Act. He was also sentenced to suffer R. I. for a period of five years and to pay fine of Rs. 25,000/-, in default, to suffer R. I. for a period of one year for the offence punishable under Sections 420 read with Section 120b of the IPC. He was also sentenced to suffer R. I. for a period of one year and to pay fine of Rs. 2,000/-, in default, to suffer R. I. for a period of three months for the offence punishable under Sections 471 read with Section 468 as well as 120b of the IPC. Similarly, the appellant-original accused no. 4 was sentenced to suffer R. I. for a period of two years for the offence punishable under Section 120b read with Sections 161,165,420 and 471 as well as read with Section 5 (1) (d) and 5 (2) of the Act. He was also sentenced to suffer R. I. for a period of two years and to pay fine of Rs. 5,000/-, in default, to suffer R. I. for a period of six months for the offence punishable under Sections 420 read with Section 120b of the IPC. He was also sentenced to suffer R. I. for a period of one year and to pay a fine of Rs. 2,000/-, in default, to suffer R. I. for a period of three months for the offence punishable under Sections 471 read with Section 468 of the IPC. He was also sentenced to suffer R. I. for a period of one year and to pay a fine of Rs. 2000/-, in default, to suffer R. I. for a period of three months for the offence punishable under Sections 471 read with Section 468 of the IPC as well as read with Section 120b of the IPC. However, the appellant-original accused no. 5 came to be acquitted by the learned Special Judge. 1. 1 In Criminal Appeal no. 360 of 1987 the appellant-original accused no. 1-Shantilal Maganlal Pandya challenges his conviction and sentence as stated above. In Criminal Appeal no. 253 of 1987 the appellant-original accused no. 2- Khalid I. Bey and the appellant-original accused no. 3-Muzaffar I. Bey challenge their conviction and sentence as stated above. In Criminal Appeal no. 324 of 1987 the appellant-original accused no. 4 "mayank N. Shah challenges his conviction and sentence as stated above.

(2.) THE facts giving rise to these proceedings as emerging from the record of the case can be summarized as under: 2. 1 On 21-7-1976, a complaint came to be lodged by Shri R. S. Pandya, who was serving as Divisional Manager, Central Bank of India, Ahmedabad with the Superintendent of Police, Central Bureau of Investigation, Ahmedabad against the aforesaid accused as well as Salauddin and Vazirbegum which came to be registered as C. R. no. 43 of 1976. It was alleged in the said complaint that M/s. New Russian Automobiles is a registered partnership firm situated at Mirzapur Road, Ahmedabad and that the said firm was engaged in the business of manufacturing crank- shafts for jeep, ambassador cars, tractors and diesel engines etc. According to the complaint, the firm acquired a plot of land bearing no. 155, C1-B/3 Industrial Area, Naroda Taluka City District Ahmedabad and constructed industrial shed thereon. It was further the case of the complainant that the appellant- original accused no. 1 was at the relevant time, serving as Branch Manager, Central Bank of India, Ghee Kanta Road, Ahmedabad whereas the appellants- original accused nos. 2 and 3 were partners of the said firm along with two other partners, namely Salauddin and Vazirbegum. According to the complainant, the appellant-original accused no. 4 was at the relevant time, serving as Chief Manager (Operations) with the said firm while the appellant-original accused no. 5 was serving as Office Superintendent with the said firm. It is further the case of the complainant that the appellant original accused no. 2 applied to the Central Bank of India, Ghee Kanta Branch, Ahmedabad for availing of certain facilities for the firm and accordingly various facilities, namely, Term Loan Facility, Cash Credit Open Loan Facility, Usuance Bills Facility, Clean Endorsed Out-stationed Third Parties Cheques Discounting etc. to the tune of certain amount limits, which were extended from time to time and on certain occasions at the instance of the appellant-original accused no. 1. According to the complainant, the accused no. 2 apart from being partner of the aforesaid firm, had also floated three other fictitious sole proprietary firms at Bombay being (i) Messrs Technical Export Import Association, (ii) Messrs. Alloy Steel Corporation and (iii) Messrs Auto Parts Centre. It is further the case of the complainant that under the Usuance Bills Facility, the said firm used to offer its bills drawn on different out-stationed parties and along with these bills were produced before the bank, railway receipt or motor receipt, the invoices for the value of the goods sold to the parties and also the hundis drawn upon the purchases and all these documents presented before the bank on behalf of the firm were signed by the accused nos. 2 to 5. On such presentation before the bank, the bank used to grant the credit of the value of the bill and credit the account of the said firm with the amount for which the bills were drawn. The bank used to forward those bills with necessary documents to the out-stationed bankers named in the bill and out-stationed parties used to accept the hundis for the value of the goods sent along with the bill and the out-stationed bank used to deliver to the said party railway receipt or motor receipt along with the invoices. According to the complainant, the out-stationed parties then used to pay up the amount of the hundis o their banker within the time fixed by the hundis and such bankers used to send the necessary amount to the Central Bank of India, Gheekanta Branch, Ahmedabad.

(3.) IT was further alleged in the complaint that all the accused persons hatched a conspiracy to cheat the said bank and they managed to get presented to the said bank certain fake motor transport receipts alleged to have been issued by one Bombay General Freight Carriers Private Limited, Bombay and having its branch office at Ahmedabad along with bills. According to the complainant, the accused nos. 4 and 5 presented to the said bank 25 bills for the total amount of Rs. 18,57,064. 40ps. during the period from October, 1975 to March, 1976 and in this manner, the firm availed the credit facility from the said bank against these bills by presenting fake transport receipts. On certain occasions, forged receipts were produced with Out-stationed Bills Discounted (O. B. D.) and Bills Purchased (B. P. ). In all about 25 bills were presented with forged motor transport receipt and out of the said bills, 11 bills totaling to Rs. 6,02,160/- were drawn upon a fictitious firm named M/s. Auto Parts Centre wherein the accused no. 2 was the sole proprietor. Thus, the accused no. 2 to 5 by making a false or misleading representation with fraudulent and dishonest inducement cheated the bank to the tune of Rs. 18,57,064. 40. According to the complainant the accused nos. 2 to 5 had also made false declaration about the value of the goods by drawing bills in favour of fictitious firms. Again, M/s. Alloy Steel Corporation a fictitious firm floated by the accused no. 2 though never sold and dispatched forging to the firm, raised 11 invoices in the name of the said firm amounting to Rs. 44,19,000/- and fraudulently and dishonestly induced the said bank to advance amount of Rs. 30,93,300/- to the said firm against the goods of the aforesaid 11 invoices which constitutes an offence of the cheating the said bank. It is further the case of the complainant that despite this position, the accused no. 1 made false representation to the bank that the dealings of the firm with the bank were satisfactory and the account is operated satisfactorily. It is also the case of the complainant that the accused no. 2 made application to the bank for enhancement of the amount of various facilities granted to it and the accused no. 1 favoured the accused no. 2.