AI Structured Summary
Not yet generated for this judgment
Judgment
G. Rajasuria, J.—This petition petition has been filed to call for the records in C.C. No. 2 of 2005 on the file of the learned Special Judge
for CBI cases, Madurai, and quash the same.
The facts in nutshell absolutely necessary for the disposal of this petition would run thus:
The petitioner herein/A.1 along with A.2 was booked by the C.B.I suo moto after conducting preliminary enquiry for the offences punishable under
Sections 120B read with 409, 477A, I.P.C and under Sections 13(2) read with 13(1)(c) and (d) of P.C.Act, 1988.
The gist and kernel of the prosecution case is that the first accused being the official of the Oriental Insurance Company, Nagercoil Division, was
in the habit of collecting cash from the customers and issuing insurance policy, however he failed to account for those amounts, but prepared false
entries as though some payments were received in cash and some in cheques by him and those cheques were bogus and fictitious ones.
Accordingly, the charge sheet/police report was laid by the respondent police and the Special Court concerned, took it on file as C.C. No. 2 of
2005. At this juncture, at the time of framing of charges, the petitioner has chosen to file an application for discharge and while the said petition was
pending, another petition was filed to summon some documents in order to support his case in the discharge petition. But, that petition came to be
dismissed by the Special Court by giving a finding that at the time of trial, those points would be considered and the petition for discharge was
dismissed.
Apparently, as against the dismissal order, no revision was filed. The charge was also framed and questioning the charge, there was no challenge
before the higher forum.
The learned Counsel for the petitioner would elaborate and expound by stating that the petitioner has not chosen to challenge the framing of
charges on the fond hope that at the time of trial, the accused would be provided with the relevant documents which he already prayed for before
framing of the charges. But, that was not produced even after commencement of the trial; thereupon, C.M.P. No. 207 of 2006 in C.C. No. 2 of
2005 was filed u/s 91 Cr.P.C by the petitioner for summoning those documents as described hereunder:
Sl. Date Description of documents
No.
1 17.06.2003 CASH RECEIPT SCROLL
2 3/6/03 CASH RECEIPT SCROLL
3 29.05.2003 CASH RECEIPT SCROLL
4 28.05.2003 CASH RECEIPT SCROLL
5 19.05.2003 CASH RECEIPT SCROLL
6 3/4/03 CASH RECEIPT SCROLL
7 6/5/03 CASH RECEIPT SCROLL
8 9/4/03 CASH RECEIPT SCROLL
9 28.03.2003 CASH RECEIPT SCROLL
10 27.03.2003 CASH RECEIPT SCROLL
11 8/4/03 CASH RECEIPT SCROLL
12 21.01.2003 CASH RECEIPT SCROLL
13 21.02.2003 CASH RECEIPT SCROLL
14 14.02.2003 CASH RECEIPT SCROLL
15 13.11.2003 CASH RECEIPT SCROLL
16 21.03.2003 CASH RECEIPT SCROLL
17 14.02.2003 CASH RECEIPT SCROLL
18 6/1/03 CASH RECEIPT SCROLL
19 17.04.2003 CASH RECEIPT SCROLL
20 10/2/03 CASH RECEIPT SCROLL
21 30.01.2003 CASH RECEIPT SCROLL
22 16.06.2003 CASH RECEIPT SCROLL
23 9/6/03 CASH RECEIPT SCROLL
24 7/4/03 CASH RECEIPT SCROLL
25 24.04.2003 CASH RECEIPT SCROLL
26 7/1/03 CASH RECEIPT SCROLL
27 28.01.2003 CASH RECEIPT SCROLL
28 24.10.2003 CASH RECEIPT SCROLL
29 23.05.2003 CASH RECEIPT SCROLL
30 10/3/03 CASH RECEIPT SCROLL
31 17.04.2003 CASH RECEIPT SCROLL
32 23.05.2003 CASH RECEIPT SCROLL
In that petition, the learned Judge passed the following order:
Counter not filed. Perused the averments and has heard L.P.C. On perusal of the petition, this Court finds that there is legal ground and justification
in this prayer. No document is privileged one. All the Bank documents. Considering the nature of documents and in the interest of justice and fair
trial, this petition is allowed.
Thereupon, the respondent produced all the documents. The learned Special Public Prosecutor for CBI Cases would explain and expound that
pursuant to that order, whatever print out that could be got from the computer, they produced. The learned Counsel for the petitioner would air the
grievance of the petitioner that only after the suspension of the accused, and that too after passing order by the Court directing the CBI to produce
the relevant documents, those documents were produced before the Court and such documents cannot be relied on by the prosecution also.
Furthermore, he would submit that the cash receipt scrolls should be prepared every day and that should also be countersigned by the Branch
Manager without which the accounts of a day cannot be taken to have been completed.; here, the Branch Manager is not an accused; hence, for
all these reasons and that in the absence of the relevant particulars, the case should not be allowed to proceed and it should be quashed.
The learned Special Public Prosecutor for CBI Cases would stress upon the trait proposition that it is for the CBI to establish its own case.
According to the case of the CBI, at the time of filing charge sheet, they filed relevant documents, consequently copies of those documents were
furnished to the petitioner and that depending upon necessity, C.B.I may also rely on the documents which were filed subsequently at the instance
of the petitioner.
The learned Counsel for the petitioner would highlight that the aforesaid thirty two documents were not produced by the CBI, as ordered by the
trial Court and that the trial Court without considering all these aspects is simply proceeding with the case. Thereupon, the learned Special Public
Prosecutor for CBI Cases, would convincingly state that whatever print outs available were produced and the CBI cannot be compelled to
produce the documents which are not in existence.
The learned Counsel for the petitioner would also point out that in the computer relating to Oriental Insurance Company, there are front office
system and back office system; the accused as per the rules was entitled to deal only with the front office system and not with the back office
system at all; that after his suspension, the Insurance Company manipulated with the back office system and made false entries and thereby, trying
to fasten the accused with criminal liability and that one Jeyapaul, the Accounts Officer, was responsible for operating the back office system, and
not the petitioner, for which the learned Special Public Prosecutor would refer to the counter in which paragraph No. 3 would run thus:
It is submitted that the allegations in the above cases are that Shri Kaleelul Rahuman, Shri John Christopher and Shri Robert Vincent while
working as Cashier, Sub-Staff and Development Officer/Assistant Administrative Officer, respectively in the O/o.Oriental Insurance Company
Ltd., Nagercoil, entered into criminal conspiracy at Nagercoil and other places, to commit illegal acts viz., misappropriation of the amounts of
Oriental Insurance Company (OIC) Ltd., which were entrusted by the customers/insured and in pursuance of the criminal conspiracy, Shri Kaleelul
Rahuman did not account for the entrusted premium by the different insured persons, but by abusing his official position, illegally shown them as
cheque payments in the Daily Cash Balance Book (DCB), by falsification of the entries, which is prepared at the end of the day after completing all
the transactions and in pursuance of the criminal conspiracy, Shri John Christopher had entered fictitious cheque details and false entries in the
DCB to cover-up the misappropriation and in pursuance of conspiracy, Shri Robert Vincent, in certain instances had misappropriated the premium
amount entrusted by the insured/agents for issuing insurance policies and issued his own cheques and his relatives cheques to Shri Kaleelul
Rahuman and in pursuance of the conspiracy, Shri Kaleelul Rahuman shown them as cheque payments and certain cheques are not presented to
the Bank, knowing fully well that the amounts were misappropriated by them and in pursuance of conspiracy by committing criminal misconduct
entered the details of cheques/fictitious cheque numbers. It is further alleged that in pursuance of the criminal conspiracy Shri Kaleelur Rahuman did
not account for the entrusted premium by the different insured persons in cash, but by abusing his official position, illegally made false entries in the
CRS/DCB and collection register as per the back office and in pursuance of the criminal conspiracy, Shri John Christopher had made false entries
in the DCB to cover-up the misappropriation. The modus operandi adopted by Kaleelul Rahuman was that he accessed into the back office
computer network system, selected at random any one of the loaded premium paid by any insured reduced the loaded premium from the premium
amount paid by the insured and did not account the same. Also another modus operandi is that, Kaleelul Rahuman accessed into the back office
computer network system, selected any premium amount paid by the insured, erased completely the details of the policy issued against that
premium amount and did not account the entire amount relating to that transaction.
It is therefore clear that it is the bounden duty of the prosecution to prove that even though the accused was not duty bound in any way, to deal
with the back office system, yet he exceeded his powers and rights and meddled with the back office system. The alleged non-production of the
aforesaid thirty two documents as required by the accused shall all be considered by the Sessions Judge as to whether those documents are
absolutely necessary to prove the prosecution case. The trial Judge also should find out whether all those documents in fact, did exist at all. These
are intricate facts and not mere law points or technical points, warranting the invocation of the jurisdiction of this Court u/s 482 Cr.P.C.
Hence, in this view of the matter, I would like to pass the following direction while dismissing this petition:
The learned trial Judge shall look into the relevancy of those thirty two documents and also find out (i) whether those documents in fact existed or
not?; (ii) whether the belated production of the documents at request of the accused, would weaken the case of the prosecution?; (iii) Whether the
prosecution has to prove specifically that the accused meddled with the back office system. Over and above those points, whatever defence that
would be raised during trial, the trial Court shall consider them and accordingly, a decision may be arrived at.
The learned Counsel for the petitioner in an extempore manner made a representation at the conclusion of this order that P.W.1 was not
effectively cross-examined, because of the non-production of the documents which were required to be produced by the petitioner as in the
petition u/s 91 Cr.P.C. The learned Special Public Prosecutor for CBI Cases, would state that it is always open for the petitioner to pray for recall
the witnesses and it has to be decided on merits. From the arguments put forth on either side, I am convinced that the petitioner could be given one
more opportunity to cross-examine P.W.1; if he applies for the same before the trial Court. Consequently, connected M.P.(MD) No. 1 of 2007 is
also dismissed.