IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE ANAND BYRAREDDY. CRIMINAL APPEAL No.2288 OF 2005

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1 - 1 - IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7 TH DAY OF MARCH, 2013 BEFORE THE HON BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL APPEAL No.2288 OF 2005 Between: Shantha Kumar S/o Muniswamy Age: Major Junior Office Assistant Office of the Airport Authority of India Coimbatore Airport Coimbatore, Tamilnadu R/of No.AAI-Colony Civil Aerodrum Coimbatore Airforce Coimbatore -14 Appellant (By Shri Christoper Noel, Advocate Amicus Curiae) And: State by Central Bureau of Investigation Bangalore Respondent (By Shri P.Prasanna Kumar, Advocate) ***** This Criminal Appeal is filed under Section 374(2) Cr.P.C against the judgment dated passed by the XXI

2 - 2 - Additional C.C. and S.J. and Spl. Judge for C.B.I Cases, Bangalore in Spl.C.C.No.12/2000 convicting the appellant accused for the offence punishable under Section 420 read with Section 51 and Sections 468 and 471 IPC and sentencing him to undergo S.I. for 2 years and to pay fine of Rs.5,000/- and in default to undergo S.I. for 3 months for the offence punishable under Section 468 of IPC and further sentencing him to undergo S.I. for 2 years and to pay fine of Rs.5,000/- and in default to undergo S.I. for 3 months for the offence punishable under Section 471 of IPC and sentencing him to undergo S.I. for 6 months and to pay fine of Rs.1,000/- and in default to undergo S.I. for one month for the offence punishable under Section 420 read with Section 511 of IPC. All the above sentences shall run concurrently. This Appeal coming on for final hearing this day, the Court delivered the following:- JUDGMENT Heard the learned counsel for the appellant and Shri P.Prasanna Kumar, the learned counsel for the respondent. 2. The appeal is by the accused who has been convicted of offences punishable under Sections 468, 471 and 420 read with Section 511 of Indian Penal Code, 1860 (hereinafter referred to as IPC for brevity).

3 The facts of the case are as follows: The appellant while functioning as Junior Office Assistant in the office of Airport Directorate, Airport Authority of India, Bangalore, had fraudulently, abusing his official position, in order to enable one Dhanalakshmi to make monetary gain, had forged certain documents to ensure that the major portion of death benefits of one Arokiadass, who was working as a Medical Transport Driver, could be obtained by Smt.Dhanalakshmi. It was alleged that the deceased Arokiadass, during his lifetime, had made nominations in the names of his family members as on in the prescribed format and had mentioned names of his daughters and other family members, attested by one V.Rajeshwara Rao, the then Accounts Officer. The deceased had also submitted authorisation for deduction from the salary under the National Airport Authority Benevolent Fund Scheme and had furnished the prescribed nomination form mentioning his wife Smt.M.Vijaya as the only nominee for the said Fund and had indicated that 100% of the benefit to be given to her.

4 - 4 - Arokiadass had passed away and when claim papers were submitted, the appellant Shantha Kumar, on , while processing the papers for the death benefits of the deceased, is alleged to have removed Pension Form III details of the family from the service book of deceased Arokiadass and replaced the same with a fabricated Pension Form III details of the family showing the name of Dhanalakshmi as the mother of the deceased and it is alleged that he has forged the signature of the deceased as well as the signature of the attesting officer Sri.V.Rajeshwara Rao. It was further alleged that he knowing fully well that the deceased had nominated his wife Smt.Vijaya, had fraudulently added the name of Dhanalakshmi as the mother of the deceased and altered the 100% benefit, mentioned against the name of his wife, to 25% and typed 75% against the name of Smt.Dhanalakshmi in the Fund Scheme Authorisation form for deduction from the salary under the National Airport Authority Benevolent Fund Scheme. It was further alleged that he had removed the Form Rules GSLIS the letter of admission and authority dated and replaced it with the

5 - 5 - fabricated one, by inserting the name of Smt.Dhanalakshmi as mother of the deceased Arokiadass by forging the signature of the deceased. It is on the basis of these documents that the Regional Executive Director, Airport Authority of India sanctioned the Benevolent Fund of Rs.50,000/- to be disbursed and therefore, it was alleged that the accused had committed the offences punishable under the afore said Sections as well as Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, It is on those allegations that the Central Bureau of Investigation Police had investigated the matter and on completion of investigation had filed charge sheet against the accused and after further proceedings, charges were framed against the accused and since the appellant pleaded not guilty, the prosecution tendered evidence through PW.1 to PW.14 and marked Exs.P1 to P After recording the evidence and on hearing the parties, the statement of the accused under Section 313 of the Code of

6 - 6 - Criminal Procedure, 1973 was also recorded and on the basis of the above, the court below had framed the following points for consideration: (1) Whether the prosecution has proved that there was valid consent for the CBI to conduct investigation in this case? (2) Whether the prosecution has proved that sanction order issued in this case for the prosecution of the accused is valid in law? (3) Whether the prosecution proves beyond all reasonable doubt that accused Shanthakumar while functioning as Junior Office Assistant in the office of Airport Directorate, AAI, Bangalore during September 1998 dishonestly and fraudulently by abusing his official position in order to make monetary gain to Smt.Dhanalakshmi, mother of deceased Arokiadass, who was working as a Medical Transport Driver in the office of the Airport Authority of India had forged certain documents to see that the death benefits of Arokiadass were given in major portion to the mother of the deceased. It was alleged that

7 - 7 - deceased Arokiadass when he was alive, furnished the nomination and the names of his family members on in the prescribed proforma mentioning names of his daughters and other family members and the said nomination form filed by the employee Arokiadass was attested by V.Rajeshwara Rao, the then Accounts Officer. The deceased had also submitted the NAA Benevolent Fund Scheme authorization for deduction from the salary under the NAA Benevolent Fund Scheme and prescribed Annexure-B and nomination form was submitted by mentioning his wife Smt.M.Vijaya as the only nominee for the NAA Benevolent Fund indicating 100% benefit to her. Subsequently, late Arokyadass who was the employee of the AAI, Bangalore passed away and then claim papers were submitted. Accused N.Shanthakumar on while processing the papers for the death benefits of deceased P.Arokyadass, dishonestly and fraudulently and by abusing his official position as public servant, removed pension form III details of family from the service book of deceased P. Arokyadass and

8 - 8 - replaced the same with a fabricated and false pension form III details of the family showing the name of Dhanalakshmi as mother, by forging the signature of the deceased and the signature of the attesting authority Sri. V.Rajeshwara Rao. It was alleged that the accused knowing full well that the deceased had nominated his wife Smt.Vijaya for the Benevolent Fund, dishonestly and fraudulently and by abusing his official position, added the name of Dhanalakshmi as mother of the deceased and altered the 100% benefits mentioned against the name of his wife to 25% and typed out 75% against the newly insered name of Dhanalakshmi in National Airport Authority Benevolent Fund Scheme authorisation form for deduction from salary/wages under the NAA Benevolent Fund Scheme and Annexure-B nomination form. The accused removed page No. from Rules GSLIS letter of admission and authority dated and replaced with a false and fabricated one by inserting the name of Dhanalakshmi as mother, by forging he signatures of the deceased. Based on the

9 - 9 - strength of documents forged by the accused, the Regional Executive Director, Airport Authority of India sanctioned the Benevolent Fund of Rs.50,000/- to be disbursed following the detection of forgery and the accused attempted to induce and cheat the nominee and also SD, AAI, Bangalore for making unlawful gain for himself and for Smt.Dhanalakshmi and thereby committed an offence punishable under Sec.420/511, 568, 471 IPC and Sec. 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1998? (4) Whether the prosecution further proved beyond all reasonable doubt that the accused while functioning as Jr.Office Assistant, Airport Directorate while processing the papers for the death benefits dishonestly and fraudulent and by abusing his official position, as a public servant, removed pension form III details of family from the service book and replaced with a fabricated and false pension form II details of family showing the name of Dhanalakshmi as mother, by forging the signature of the deceased and the signature of the attesting authority Sri V.Rajeshwara Rao knowing full

10 well that the deceased had nominated his wife and fraudulently and by abusing his official mother of the deceased and altered the 100% benefits mentioned against the name of his wife to 25% and typed out 75% against the newly inserted name of Dhanalakshmi in National Airports Authority Benevolent Funds Scheme authorization form for deduction from salary/wages under the NAA Benevolent Funds Scheme and the page Nos. of the from Rule GSLIS letter of admission and authority dated and replaced with a false and fabricated one by inserting the name of Dhanalakshmi as mother, by forging the signatures of the deceased. Based on the strength of documents forged by the accused, the Regional Executive Director, Airport Authority of India sanctioned the Benevolent Fund of Rs.50,000/- to be disbursed to Dhanalakshmi and Smt.M.Vijaya in the ratio of 75% and 25% respectively. Moreover, this amount and the insurance amount was not disbursed following the offence of forgery for cheating thereby committed an offence punishable under Sec. 468 IPC?

11 (5) Whether the prosecution further proves beyond all reasonable doubt that the accused being a public servant by corrupt or illegal means or otherwise abusing his official position forged the nomination forms of the deceased and used them as genuine and attempted to defraud AAO to obtain the wrongful gain for himself and Smt.Dhanalakshmi and thereby committed an offence punishable under Sect. 471 IPC? (6) Whether the prosecution further proves that the accused while functioning as public servant by corrupt or illegal means and otherwise abusing his official position as public servant forged the nomination forms of the deceased Arokyadass and used them as genuine and attempted to defraud AAI to obtain the wrongful gain for himself and in the name of Smt.Dhanalakshmi and thereby has committed an offence punishable under Sec. 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1998? (7) What order?

12 The Court then held points 1 to 5 in the affirmative and point No.6 in negative and convicted the appellant to imprisonment prescribing simple imprisonment for two years and to pay a fine of Rs.5,000/- for the offence punishable under Section 468 of IPC and simple imprisonment for two years and to pay a fine of Rs.5,000/- for the offence punishable under Section 471 of IPC and simple imprisonment for 6 months and to pay a fine of Rs.1,000/- for the offence punishable under Section 420 read with Section 511 of IPC. The sentences were to run concurrently. It is that which is under challenge in the present appeal. 7. The learned counsel for the appellant, who is appointed as Amicus Curiae, contend that the allegations of forgery are made against the accused on the strength of the material documents that are produced. However, though it has been established that there was indeed interpolation in the relevant documents and erasure of certain entries and retyping of other details in the several documents, the question whether the

13 appellant was responsible for those illegal entries having been made in the several documents, is the primary question. Insofar as the technical expert s evidence as to the hand-writing of the appellant matching the writing found on the several documents is concerned, the matter had remained inconclusive. It is in this background that this Court had remanded the matter directing the court below to record fresh evidence on that aspect of the matter, namely, to record the findings of the hand-writing expert as to the comparison of the admitted handwriting of the appellant and the handwriting found on the relevant documents. The Trial Court having recorded such fresh evidence has again arrived at similar findings to the effect that the same is inconclusive. In that view of the matter, the learned counsel would seek to emphasize that the evidence of the several witnesses would not be sufficient to hold that the appellant was responsible for the forgery that is alleged. It is this primary contention on which the learned counsel seeks to emphasize.

14 The finding of the court below that PW1 Maheshwari was working as Office Superintendent and PW2 was working as Junior Assistant looking after the service files in respect of the staff of Airport Authorities and PW3 was one Premachandran, who was also working as a driver in the Airports Authority of India at Bangalore and he was a colleague of the deceased who had attested Ex.P2, which is the service register of Arokiadass the deceased and PW5 V.Rajeshwara Rao, the Assistant Manager had all spoken of taking various forms from the employees for the purpose of providing retirement and death benefits and the manner in which the several documents were taken from the deceased for the said purpose. 9. PW1 has narrated that during September, 1998, she had received information of the death of Arokiadass through his elder brother and she had reported the same to the Airports Authority and also the Regional Office at Chennai. The accused had to arrange for payment of Rs.2,500/- from the

15 death benefit fund. She has stated that the accused had gone to Amblur along with the elder brother of the deceased to bring back the dead body of Arokiadass. PW2 who was looking after the service books of the employees and since the immediate death benefit settlement relating to the deceased was to be settled urgently, the concerned file was made over to the accused. Benevolent Fund is the immediate death benefit, which would be given. The Regional Head Quarters had asked for the particulars regarding the nomination. The accused had sent the particulars to the Regional Head Quarters by signal. Subsequently, the Regional Head Quarters had asked for the nomination forms for the payment of Benevolent Fund. This was by a letter dated The letter was sent by the Administrative Officer, namely, PW4. The accused has also signed the said letter after having prepared the same which is at Ex.P1. The witness has further stated that after going through the service book of Arokiadass, she had noticed whitener having been applied on certain writings and also had been retyped. The nomination form according to her revealed that

16 the nomination in favour of Vijaya, who was the wife of the deceased was entitled to 100% benefit. Subsequently, his mother s name was added and 100% nomination was erased and the nomination to the extent of 25% was made in favour of the wife and 75% was made in favour of the mother. The witness had noticed the subsequent additions and had observed from the back of the said document as there was whitener applied on the front side of the document. The subsequent addition was clearly visible as being freshly typed. This raised suspicion of the said witness who examined the document closely. Ex.P3 was the nomination form. It was the witness s suspicion that if there were any alteration or additions in the nomination, the same would be normally attested by the Administrative Officer and this would require a fresh application being submitted as per procedure and no such nomination could be altered or changed without the procedure being followed. This was apparently absent from the file and it was observed that the accused had signed as the witness for the nomination. His signatures were found at Exs.P1(b) and

17 P2(a-5). It was also known that any nomination would be required to be accompanied by Form No.III and though Ex.P3 the nomination form showed the same was attested by one Rajeshwar Rao, it was clear on perusal that it was not his signature. She doubted the signature of the deceased as well, found on Ex.P3. The right hand top endorsement regarding the diary entry on Ex.P3 was found to have been made by the accused, according to her. She had also stated about the Group Saving Linked Insurance Scheme and that there was a form for the said claim. The employee would have to submit it and it would be duly attested by the Administrative Officer. Ex.P4 was such a form for the said Scheme. The accused has signed that form as a witness. The clinching factor that the entire documentation had been forged was this, that the document was dated While submitting the said form, the employee concerned was a Medical Transport Driver in the office of the Airport Director, Airport Authority of India. The present appellant below his signature at Ex.P4(a) has not mentioned his designation, but mentioned as office of ADAAI, Bangalore

18 During the relevant period, the Airport Authority of India was not even in existence because it came into being only in the year In the year 1994, it was the National Airports Authority of India and since the appellant had unwittingly mentioned the Authority as Airport Authority of India, though the signature is meant to have been affixed in the year 1994, the suspicion of the said witness was confirmed that it was a clear forgery. 10. The learned counsel would submit that the court below has accepted the above reasoning of the said witness in concluding that there was forgery committed by the appellant. The appellant though has denied the signatures attributed to him in those documents, the court below placing reliance on the testimony of the said witness, as to the appellant being the author of the forged signatures was proceeding on the footing that the signature of the appellant found on those documents were indeed his. This is the basis on which the court has thereafter given further reasons to hold that the charges against

19 the accused being established beyond all reasonable doubt. The endeavor of the learned counsel therefore is to contend that the entire case of the prosecution is on the basis of the suspicion harboured by PW1 in the manner as afore stated in her analysis of documents Exs.P2, P3 and P4. This according to the learned counsel would be an unfair manner in holding that the prosecution has brought home the charges and established its case, beyond all reasonable doubt and it is this vein that the learned counsel for the appellant would submit that even if there was forgery in the documentation, it was not established beyond doubt that these documents were accessible by the appellant or he was in a position to forge the said signatures. The incidental circumstance that the file pertaining to the deceased had come to his hands in order to process the claim for Benevolent Fund, which was urgently required at a point of time, would not enable the appellant to carry out the elaborate replacement of the several documents and the forgery that is alleged when it was momentary entrustment of the file at that particular point of time. For otherwise, the file is not accessible

20 by the appellant as evident from the admission made by the witness which is part of the record and hence would submit that much is left to the imagination in urging the sequence of events, which are definite breaks in the chain, which the prosecution would have to establish, as being linked without any breaks, thereof, in order to bring home the charges. The allegations would visit the appellant with serious punishment, which indeed has been mulcted on him by the Trial Court on the basis of the evidence, which is not consistent and which is not free from doubt and therefore, seeks that the appeal be allowed and the appellant be acquitted. 11. While the learned counsel for the respondent would point out that the court below has methodically analysed the evidence of the prosecution and particularly, the evidence of PW1 and the manner in which the mischief was discovered. Therefore, the primary contention that even if there was forgery in the relevant documents, the same could not be attributed to the appellant, is not tenable. The further contention on the part of

21 the appellant that the witnesses have not categorically established that the actual signature attributed to the appellant as being in his capacity of an attesting witness in Exs.P2, P3 and P4, are also forgeries and cannot be said that it has been established as being that of the appellant, is incorrect. Though the handwriting expert s opinion has been characterised by the Trial Court as being inconclusive, the opinion of the handwriting expert was certainly not in favour of the appellant. However, the court below has relied on the oral testimony of the colleagues of the appellant in affirming that the signatures were indeed that of the appellant. The clinching factor however is the mistake committed by the forger. If indeed it was not the appellant who had affixed his signature, the mistake committed in indicating the Airports Authority of India under his signature, though it was not in existence in the year 1994, is a slip-up by the appellant himself which has exposed him. Apart from the appellant s signature, PW5 the Administrative Officer whose signature was also said to have been forged, was examined as a witness and he has categorically stated that the

22 signature was not his, coupled with this circumstance, it was only the appellant who was the other signatory to the document and the several co-workers having identified the appellant s signature which was unerringly compared with the appellant s signature, though it was said to have been forged, there can be no doubt of the commission of the alleged offence by the appellant. Therefore, there is no fault to be found with the reasoning of the court below. Therefore, this Court would not differ from the opinion expressed by the court below and hence would submit that in the absence of any other witnesses being involved in the attestation or otherwise of the said document, the appellant alone was the culprit and this would be the unerring conclusion as it is not the case of the appellant that the entire prosecution witnesses were inimically disposed towards the appellant. They were none other than the colleagues of the accused. He has been exposed on account of his own inadvertence and therefore, submit that there is no warrant for interference on the grounds that are urged by the appellant.

23 In the light of the above contentions and on a close examination of the record, the fervent plea made by the learned counsel for the appellant for lenience in seeking modification of the sentence and punishment imposed, there is no warrant in any such reduction, as the prosecution has established its case against the accused beyond all reasonable doubt and hence, the appeal is dismissed. 13. The learned counsel Shri Christopher Noel shall be paid a sum of Rs.10,000/- as fees for his assistance as Amicus Curiae and the assistance rendered is appreciated. Sd/- JUDGE AHB