R.M. Vellaiyan vs State of Tamil Nadu and Another

The conviction of the appellant recorded u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 420 read with Section 34, I.P.C. are the subject matter of challenge in this appeal after the two courts concurrently have found the appellant guilty for the aforesaid offences. The exercise in the present appeal is: whether the facts established by the prosecution blow merely an air of suspicion or are tantamount to proof for maintaining the conviction.

We must begin with recording that out of the five accused sent for trial, original accused A-3 and A-5 have been acquitted and original accused A-l and A-4 though convicted have not challenged, perhaps, their conviction, after the same was maintained by the High Court. The appellant who is original accused A-2, as is evident from the judgments of the Courts below, had comparatively a smaller role to play in the whole organised crime which has been summed up by the High Court at page 45 of its judgment. Its observations are worth reproduction.

1) The fact that the second accused introduced the fictitious firm of the fourth accused for the purpose of opening a current account:

2) the second accused recommending the fictitious bills by the fictitious firm to a fictitious consignee for purchase of the bills by P.W. 5;

3) the fact that the consigments contained mudlike, things and not the conveyor rings as mentioned in the invoices and the bills.

These findings need a little elaboration in the backdrop in which they came to be arrived at. Regarding the first finding, it is to be noticed that the appellant was a 'Clerk' at the Central Office of the Indian Bank, Madras City. By virtue of his office, he was the Representative Director of the workmen in the Bank. He introduced to the Bank the fourth accused representing a firm for opening a current account. This fact is not denied by the appellant. It was suggested on behalf of the appellant that he had introduced the fourth accused because he knew him but he had otherwise no occasion to know that he had floated a fictitious firm. With regard to the second finding, it needs to be elaborated that on 29:12.1973 he helped the sale of a bill of the fictitious firm to P.W. 5 and likewise on another occasion i.e. on 7.1.1974 helped the fictitious firm to sell its bills to P.W. 5. Regarding the third finding, the appellant positively had no occasion to see what actually, stood conveyed by means of the invoices and the bills. In other words, he had no occasion to see whether the goods sent actually corresponded to the invoices and mentioned in the bills.

Apart from the above findings, the High Court has categorically held that the appellant seems to have gained no pecuniary advantage for these transactions. It is pertinent to note that each court below has separately found that the appellant gained no pecuniary advantage for facilitating the opening of the Current Account, or for the purchase of bills by P.W. 5 or anything for the consignments which were, to his knowledge, not in accord with the invoices of the bills. Stress only was laid by the High Court on the pecuniary advantage gained by the first and the fourth accused whose convictions have been maintained. In view of the aforesaid findings of the High Court, it would be extremely doubtful whether the penal provisions of Section 5(1)(d) read with section 5(2) or even of Section 420, I.P.C. would get attracted. It may give rise to suspicion that when the appellant introduced the fourth accused to the Bank for opening a Current Account, he may have some connection with the fourth accused. But, this, at best, is a suspicion and a conduct of over trust, or negligent discharge of duty not amounting to misconduct. Equally, the finding that the appellant facilitated purchase of bills by P.W. 5 on two occasions could, at best, be termed a suggestion to P.W. 5 in order to help the fourth accused to sell of his bills but not necessarily with the criminal intent (mens rea) which is the main ingredient of the penal provisions under which he has been punished. The third finding on the face of it, does not involve the appellant at all. It hardly needs recalling that tonnes of suspicion are nothing in contrast with an ounce of proof. We cannot thus maintain the conviction of the appellant on mere suspicion however high the degree of guilt of others may have been. There is not even an iota of evidence which can be termed as proof on the strength of which the convictions be sustained. Therefore, we are led to the inevitable result that the findings recorded by the High Court above reproduced, do not establish the guilt against the appellant beyond reasonable doubt and remain within the realm of suspicion. Thus, for the foregoing reasons, we upset the impugned order of the High Court insofar as it relates to the appellant and acquit him of the charges. The appeal would stand allowed accordingly.