P. Sasikumar & Thiruvananthapuram Service Co-operative Bank Ltd., No.131 v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH ``` ``` MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945 ``` ## **`CRL.A NO. 82 OF 2010`** ``` AGAINST THE ORDER/JUDGMENTCC 17/2006 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM ``` ## **`APPELLANT/S:`** ``` P.SASIKUMAR THIRUVANANTHAPURAM SERVICE CO-OPERATIVE BANK LTD., ``` ``` NO.131. ``` ``` BY ADVS. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM,. ``` ## **`OTHER PRESENT:`** ``` SMT S REKHA SR PP, SRI A RAJESH SPL PP VACB. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.08.2023, ALONG WITH CRL.A.79/2010, 86/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945 CRL.A NO. 79 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENTCC 20/2006 OF ENQUIRY COMMISSIONER ``` ``` & SPECIAL JUDGE, THIRUVANANTHAPURAM ``` ``` APPELLANT/S: ``` ``` P.SASIKUMAR THIRUVANANTHAPURAM SERVICE, CO-OPERATIVE BANK LTD.NO.131. ``` ``` BY ADVS. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.08.2023, ALONG WITH CRL.A.82/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945 CRL.A NO. 86 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT IN CC 18/2006 OF ENQUIRY ``` ``` COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM APPELLANT/S: ``` ``` P.SASIKUMAR THIRUVANANTHAPURAM SERVICE CO.OPERATIVE BANK, LTD,NO.131. ``` ``` BY ADVS. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN ``` ``` RESPONDENT/S: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.08.2023, ALONG WITH CRL.A.82/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 4 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945 CRL.A NO. 87 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENTCC 19/2006 OF ENQUIRY COMMISSIONER ``` ``` & SPECIAL JUDGE, THIRUVANANTHAPURAM ``` ``` APPELLANT/S: ``` ``` P.SASIKUMAR THIRUVANANTHAPURAM SERVICE CO-OPERATIVE BANK, LTD.NO.131. ``` ``` BY ADVS. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT, OF KERALA, ERNAKULAM. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.08.2023, ALONG WITH CRL.A.82/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 5 ``` ## **JUDGMENT** ## **Dated this the 14[th] day of August, 2023** All these appeals have been filed against a common judgment of conviction and sentence passed by the Enquiry Commissioner and Special Judge, Thiruvananthapuram, (for short 'the court below') in C.C Nos.17, 18, 19 and 20/2006 dated 21.12.2009. 2.The appellant faced trial in four cases altogether with similar set of allegations. The offences alleged in all cases are under Section 13 (2) r/w 13(1) (c) and 13(1) (d) of the Prevention of Corruption Act ('PC Act' for short) and Sections 420, 468, 471 and 120B of the Indian Penal Code (for short ‘the IPC’). The court below tried all the four cases jointly and a common judgment was passed. The evidence was recorded in C.C No.17/2006. Since all the appeals are connected, I am also disposing of these appeals by a common judgment. 3.The accused No.1 was working as Secretary and accused No.2 was working as Clerk of Thiruvananthapuram Service Co-operative Bank (for short 'the Bank') during the period 1994 to 1998. The prosecution allegation is that the accused Nos.1 and 2, while working as public servants in the ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 6 ``` above mentioned capacity, during the aforementioned period entered into criminal conspiracy and in pursuance of the said conspiracy, dishonestly and fraudulently misappropriated a total sum of Rs.7,88,000/- by forging the signature of the deposit holders and using the same as genuine documents. The accused No.2 expired and charge against him stood abated. The accused No.1 alone faced the trial. After trial, the court below found the accused No.1 guilty, convicted and sentenced him as under:- **“C.C 17/2006** : For the conviction entered against the accused for the offence under S. 13(2) r/w 13(1)(c) of P.C. Act, 1988, he is sentenced to undergo rigorous imprisonment for two years and fine of Rs.2,00,000/(Rupees Two lakhs only) with a default clause of rigorous imprisonment for six months, for the offence under S. 13(2) r/w 13(1)(d) of P.C. Act, 1988, he shall undergo rigorous imprisonment for two years and fine of Rs.2,00,000/- (Rupees Two lakhs only) with a default clause of rigorous imprisonment for six months, for the offence under S.420 of I.P.C., he shall undergo rigorous imprisonment for two years and fine of Rs.2,00,000/(Rupees Two Lakhs only) with a default clause of rigorous imprisonment for six months, for the offence under S. S.468 of 1.P.C, he shall undergo rigorous imprisonment for two years and fine of Rs. 1,00,000/(Rupees one lakh only) with a default clause of rigorous imprisonment for four months, for the offence under S.471 I.P.C. he shall undergo rigorous imprisonment for two years and fine of Rs. 1,00,000/- (Rupees one lakh only) with a default clause of rigorous imprisonment for four months, for the offence under S. 120-B IPC, he shall undergo rigorous imprisonment for one year. The substantive sentences shall run concurrently. ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 7 ``` **C.C 18/2006** : For the conviction entered against the accused for the offence under S. 13(2) r/w 13(1)(c) of P.C. Act, 1988, he is sentenced to undergo rigorous imprisonment for a two years and fine of Rs. 1,00,000/(Rupees one lakh only) with a default clause of rigorous imprisonment for four months, for the offence under S. 13(2) r/w 13(1)(d) of P.C. Act, 1988, he shall undergo rigorous imprisonment for two years and fine of Rs. 1,00,000/- (Rupees one lakh only) with a default clause of rigorous imprisonment for four months, for the offence under S.420 of 1.P.C., he shall undergo rigorous imprisonment for two years and fine of Rs.50,000/(Rupees fifty thousand only) with a default clause of rigorous imprisonment for three months, for the offence under S. S.468 of I.P.C, he shall undergo rigorous imprisonment for two years and fine of Rs.1,00,000/(Rupees one lakh only) with a default clause of rigorous imprisonment for four months, for the offence under S.471 I.P.C. he shall undergo rigorous imprisonment for two years and fine of Rs.50,000/- (Rupees fifty thousand only) with a default clause of rigorous imprisonment for three months, for the offence under S. 120-B IPC, he shall undergo rigorous imprisonment for one year. The substantive sentences shall run concurrently. **C.C 19/2006** : For the conviction entered against the accused for the offence under S.13(2) r/w 13(1)(c) of P.C. Act, 1988, he is sentenced to undergo rigorous imprisonment for a two years and fine of Rs.1,25,000/(Rupees one lakh twenty five thousand only) with a default clause of rigorous imprisonment for five months, for the offence under S. 13(2) r/w 13(1)(d) of P.C. Act, 1988, he shall undergo rigorous imprisonment for a two years and fine of Rs.1,00,000/- (Rupees One lakh only) with a default clause of rigorous imprisonment for four moths, for the offence under S.420 of I.P.C., he shall undergo rigorous imprisonment for two years and fine of Rs.1,00,000/- (Rupees one lakh only) with a default clause of rigorous imprisonment for four months, for the offence under S, S.468 of I.P.C, he shall undergo rigorous imprisonment for two years and fine of Rs.1,00,000/- (Rupees one lakh only) with a default ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 8 ``` clause of rigorous imprisonment for four months, for the offence under S.471 I.P.C. he shall undergo rigorous imprisonment for two years and fine of Rs. 1,00,000/(Rupees one lakh only) with a default clause of rigorous imprisonment for four months, for the offence under S. 120-B I.P.C, he shall undergo rigorous imprisonment for one year. The substantive sentences shall run concurrently. **C.C 20/2006** : For the conviction entered against the accused for the offence under S. 13(2) r/w 13(1)(c) of P.C. Act, 1988, he is sentenced to undergo rigorous imprisonment for a two years and fine of Rs.1,000/(Rupees Thousand only) with a default clause of rigorous imprisonment for one month, for the offence under S. 13(2) r/w 13(1)(d) of P.C. Act, 1988, he shall undergo rigorous imprisonment for a two years and pay a fine of Rs. 1,000/- (Rupees Thousand only) with a default clause of rigorous imprisonment for one month, for the offence under S.420 of I.P.C., he shall undergo rigorous imprisonment for two years and fine of Rs.1,000/- (Rupees Thousand only) with a default clause of rigorous imprisonment for one month, for the offence under S. 120-B IPC, he shall undergo rigorous imprisonment for one year. The substantive sentences shall run concurrently.” 4.Challenging the conviction and sentence in C.C No.18/2006, the accused No.1 preferred Crl.A No.86/2010, challenging the conviction and sentence in C.C 19/2006, the accused No.1 preferred Crl.A No.87/2010, challenging the conviction and sentence in C.C No.20/2006, the accused No.1 preferred Crl.A.No.79/2010 and challenging the conviction and sentence in C.C No.17/2006, the accused No.1 preferred Crl.A No. 82/2010. ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 9 ``` 5.I have heard Sri. P. Vijayabhanu, the learned Senior counsel appearing for the appellant and Sri. A. Rajesh, the learned Special Public Prosecutor for VACB. 6.The learned Senior counsel appearing for the appellant impeached the finding of the court below on appreciation of evidence and the resultant finding as to the guilt. The learned Senior counsel submitted that there is no satisfactory evidence to prove the offences alleged against the appellant. The learned counsel further submitted that at any rate, the sentence imposed is excessive, where offences essentially constitute a single transaction, but have been split up the prosecution in to several cases, the court below ought to have ordered to run the sentence in all the cases concurrently, submitted by the learned Senior counsel. 7.On the side of the prosecution, PWs 1 to 15 were examined. It is not in dispute that the accused No.1 was working as Secretary and late accused No.2 was working as Clerk of the Bank during the relevant period. It is alleged that they misusing their official position, entered into conspiracy, forged the signature of the deposit holders and fraudulently misappropriated the amounts covered by four cases. The amount misappropriated in the cases was by way of forging ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 10 ``` the secured loans from the said Bank on the basis of the fixed deposit in the said Bank. The prosecution mainly relied on the evidence of PWs 1 to 3, 5 8 9 and 11, to prove its case and to fix the culpability on the accused. 8. The misappropriation covered in all four cases was unearthed by the internal audit conducted by the internal auditor of the Bank, who was examined as PW1. The report prepared by her has been marked as Ext.P1. She deposed that in the audit she found that the fixed depositors withdrew the amounts covered by the fixed deposits, after filing secured loan applications on the strength of the fixed deposits and without depositing or repaying those loans, the fixed deposit was withdrawn. 9. She further gave evidence that one Dr. K. Rajan and Smt. Krishnakumari deposited a sum of Rs.10,00,000/- and Rs.6,67,000/-, Rs. 54,000/- and Rs.67,000/- were taken as secured loan from the Bank on the strength of the said deposit. Sri. G. Ajayakumar deposited a sum of Rs.1,40,000/-, Rs,2,00,000/- and Rs.3,00,000/- as per the three fixed deposit receipts in the Bank and on the strength of the said deposits, an amount of Rs.3,00,000/-, Rs,1,30,000/-, Rs.2,70,000/- and Rs.1,25,000/- were taken as secured loan. Smt. Mangalam ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 11 ``` deposited a sum of Rs.1,00,000/- as fixed deposit and an amount of Rs.90,000/- was taken a secured loan on the strength of the said deposit. Sri. Balasenan deposited a sum of Rs.10,000/- in the name of his niece Smt. Manasa as a fixed deposit and an amount of Rs.8,000/- was taken as secured loan on the strength of the said deposit. PW1 further deposed that in her internal audit, it was found that at the time of passing the secured loans, the fixed deposits were not pledged by the deposit holders. According to her, the misappropriation was committed by the accused Nos.1 and 2 as seen from the records. She gave evidence relying on the documents produced by the prosecution. She also identified the signature of the accused No.1 in the loan applications and in the relevant records. 10.The evidence of PW1 is corroborated by the testimony of PWs 2 and 3. PW2 was working as clerk and PW3 was working as internal auditor of the Bank during the relevant period. Both of them corroborated the testimony of PW1 with respect to the sanctioning of the loan. PWs 2 and 3 identified the handwriting and signatures of the accused No.1 in the loan applications, loan bonds and also in the vouchers. The evidence of PW1 that it was accused Nos. 1 and 2 who had ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 12 ``` dealt with the loan transactions involved in all the four cases were corroborated by the evidence of PWs 2 and 3. 11. The prosecution examined the fixed deposit holders as Pws 5, 8,9 and 11. Their evidence would show that they never availed any loan on the strength of their fixed deposits in the Bank. PW4, the Assistant Secretary of the Bank during the relevant period deposed that, accused No.1 is the custodian of the fixed deposit receipts and all the relevant papers with respect to the disputed loan applications covered by four cases passed through the hands of the accused Nos. 1 and 2. The evidence of the cashier of the Bank who was examined as PW6 would show that the voucher with respect to the secured loan passed by the accused No.1 in respect of four cases was handed over to him for payment. He stated that since it was huge amount, the accused No.1 himself came to his cabin and collected the money. His evidence would first show that vouchers were signed and passed by accused No.1. PW7 was the President of the Bank during the relevant period. His evidence would show that none of the loan transactions covered in the four cases were placed before the Director Board of the Bank for ratification. 12. Thus it has come out in evidence that the secured ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 13 ``` loans were sanctioned on the strength of the fixed deposit of the depositors in all the four cases and the accused No.1 personally collected the loan amount. The evidence of the depositors would show that, however, they never availed any loan on the strength of the fixed deposits nor did they receive the loan amount sanctioned by the Bank. The evidence of PWs 1 to 3 proves that the entire documents related to the loan transaction passed through the hands of accused Nos.1 and 2, who were dealing the loan section on the alleged dates. The handwriting and initials of accused Nos. 1 and 2 in all the loan applications, connected bonds, vouchers etc.. were proved through the evidence of PWs 1 to 3. PW1 deposed that fixed deposits were not found among the records on her internal audit. So it is evident that the secured loans were sanctioned without getting fixed deposit receipts from the concerned deposit receipts holders. 13. As per the procedure followed in the Bank, after the sanctioning of the loan application by the Secretary, the loan bond and loan applications have to be submitted before the next Director Board for ratification. PW7 deposed that loan applications in all the four cases were not submitted for ratification. It clearly points to the circumstances leading to the ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 14 ``` conspiracy entered into by the accused Nos.1 and 2 and committing the offence of forgery as well as misappropriation. 14.Admittedly, the accused No.1 was working as public servant during the relevant period. The prosecution evidence would clearly prove that the accused was entrusted with the money or dominion over the funds of the Bank and he misusing his official position as public servant, misappropriated the amount entrusted with him. It has also come out in evidence that he has committed forgery in the documents of the Bank and used the same as genuine document. Therefore, the prosecution succeeded in proving that the appellant has committed offences under Section 13(2) r/w 13(1)(c) and 13(1) (d) of the PC Act and Sections 420, 468, 471 and 120 B of IPC in C.C Nos.17/18 and 19 of 2006 and offences punishable under Section 13(2) r/w 13(1)(c) and 13(1) (d) of the PC Act and Sections 420, 468, 471 and 120 B of IPC in C.C No.20/2006. On reappreaciation of evidence, I find no reason to interfere with the finding of conviction entered into by the court below. 15. The court below imposed substantive sentence of imprisonment as well as fine with default sentence in all the four cases. The maximum substantive sentence imposed is two ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 15 ``` years. The learned Senior counsel for the appellant. Shri.P, Vijayabhanu submitted that since it is not specifically observed in the impugned judgments that the different substantive sentence imposed in each case should run concurrently, the accused will have to run the substantive sentence of imprisonment consecutively one after another, going by Section 427 (1) of Cr.P.C. The learned Senior counsel inviting my attention to the additional documents produced before this Court at the appellate stage, submitted that the appellant now aged 68 years is suffering from various diseases and in the interest of justice, the sentence may be modified directing to run the sentence imposed in each case concurrently instead of consecutively. I find some merit in the said submission. 16. The judgments under challenge in these appeals are silent with regard to the manner in which the appellant should undergo separate substantive sentence i.e., whether to run concurrently or consecutively. As per Sub section (1) of Section 427, if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that it ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ## **`16`** shall run concurrently. Therefore, it is evident that the mandate that the subsequent sentence shall commence at the expiration of the previous imprisonment, is not absolute. The court concerned is vested with ample power to order that the sentences shall run concurrently in appropriate cases considering the facts and circumstances of the case. In **Mohanan Nair P.N. v. State of Kerala** (2017 KHC 6453) a similar question came up for consideration before the Apex Court in a prosecution under the P.C. Act. It was held that in a case where offences essentially constitute a single transaction but have been split up by prosecution into three separate cases, sentences imposed individually, can run concurrently as the jurisdiction being discretionary may be exercised on fair and just principles. In **Benson v. State of Kerala** [(2016) 10 SCC 307)], a similar question was considered by the Apex Court wherein the appellant therein was convicted for the offences punishable under section 379 IPC in several cases. After considering all the relevant aspects and after noticing that all the crimes were committed on the same day, the Apex Court directed that the sentence imposed in each of the said cases should run concurrently. The question again came up consideration before the Apex Court in **Iqram v. State of Uttar Pradesh** [2022 (6) KLT OnLine 1169 (SC)], in ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 17 ``` respect of a person who was found guilty in nine cases under the Indian Electricity Act. As per the sentence, the accused was supposed to undergo sentence for a period of 18 years in total. After considering the facts and circumstances of the case, the Apex Court passed an order directing that the sentences shall run concurrently. 17. Thus, from the principles laid down by the Apex Court, it can be seen that even though the general rule is that where there are different transactions, different crime numbers and the cases have been decided by different judgments, concurrent sentence cannot be awarded under section 427 Cr.PC, the court has still power and discretion to issue a direction in appropriate cases that all or any of the subsequent sentences shall run concurrently with the previous sentences. The said direction has to be exercised judiciously, depending upon the nature of offences and other relevant factual situations of each case. 18.The medical certificate produced by the appellant as well as the photographs of his leg would show that the appellant is suffering from chronic kidney disease, fatty liver, bilateral inguinal hernia, chronic filarial edema and renal stone disease. Considering the facts of the cases and also considering the present health condition of the appellant, I am of the view that ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 18 ``` failure to order the running of the sentences concurrently would cause serious miscarriage of justice. Hence, it is ordered that, the substantive sentences imposed upon the appellant in the three cases, are directed to run concurrently, except the default sentence, if the fine amount imposed has not been paid by him. The appeal is allowed in part as above. **Sd/DR.KAUSER EDAPPAGATH** AS /SJ **JUDGE** ``` CRL.A Nos. 79, 82, 86 and 87 of 2010 ``` ``` 19 ``` ## **`APPENDIX OF CRL.A 86/2010`** ``` PETITIONER ANNEXURES Annexure-1TRUE COPY OF THE MEDICAL CERTIFICATE DATED 12-08-2023 ISSUED TO THE APPLICANT HEREIN BY THE DEPARTMENT OF NEPHROLOGY, MEDICAL COLLEGE, TRIVANDRUM Annexure-2TRUE COPY OF THE PHOTOGRAPHS OF THE APPLICANT'S HEALTH CONDITION Annexure-3TRUE COPY OF THE AFFIDAVIT SWORN BY THE APPLICANT HEREIN DATED 12-08-2023 Annexure-4TRUE COPY OF THE AADHAR CARD OF THE APPLICANT ```