G. Subbaraman vs. State

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Page 1 Tuesday, December 12, 2023

Printed For: 2021LLB Siddhant Verma, Dr. RML National Law University
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2018 SCC OnLine Mad 354 : 2018 Cri LJ 2377 : (2018) 2 MWN (Cri) 145 :
(2018) 1 LW (Cri) 203
In the High Court of Madras

(BEFORE G. JAYACHANDRAN, J.)
Crl.A. No. 445 of 2010

G. Subbaraman .…. Appellant/Accused No. 1
With
Crl.A. No. 448 of 2010 (Died pending appeal)
G. Ramachandran .…. Appellant/Accused No. 4
With
Crl.A. No. 438 of 2010
N. Kumar .…. Appellant/Accused No. 5
And
Crl.A. No. 479 of 2010
N. Ramalingam .…. Appellant/Accused No. 6
v.
State rep. by Inspector of Police, SPE, CBI, ACB, Chennai .….
Respondents/Complainant
Criminal Appeal Nos. 445, 448, 438 & 479 of 2010
And
M.P. Nos. 1, 2 & 2 of 2010
Decided on February 5, 2018, [Reserved on : 22.01.2018]
For Appellant in Crl.A. No. 445 of 2010 : Mr. V. Karthick, Senior Counsel for M/s.
T.S. Gopalan & Co.,
For Appellant in Crl.A. No. 479 of 2010 : Mr. N.A.W. Abdul Rahim,
For Appellants in Crl.A. Nos. 448 & 438 of 2010 : Mr. Sundar Mohan
For Respondents in all the Appeals : K. Srinivasan Special Public Prosecutor (C.B.I.
cases)
PRAYER : All the Criminal Appeals are filed under Section 374(2) of Criminal
Procedure Code, against the judgment passed in C.C. No. 39 of 1998 dated
14.07.2010 by the XI Additional Special Judge for CBI cases(CBI cases relating to
Banks and Financial Institutions), Chennai-1.
The Judgment of the Court was delivered by
G. JAYACHANDRAN, J.:— M/s. Nurit Inks (P).Ltd represented by its Managing
Director G. Ramachandran is a constituent of the Indian Bank, Mylapore Branch since
1984. On 20.12.1991 Thiru. G.S. Subbaraman as the Chief Manager of Indian Bank,
Mylapore Branch purchased a Foreign Cheque bearing No. 79584032 A/c with Union
Bank, Switzerland, Zurich for Swizz Franc One Lakh issued by one Ms. Malliga
Saravanamuthu payable to NIFE.AB. The cheque was endorsed by the payee to Shri G.
Ramachandran of M/s. Nurit Inks (P) Ltd. The proceeds of the cheque was credited
into the savings bank account of G. Ramachandran and he had withdrawn the amount
subsequently. The cheque so purchased by G.S. Subbaraman and encashed by
Ramachandran returned unhonoured on 08.01.1992 for the reason “cheque blocked”.
A sum of Rs. 18,63,932/- being the FBP liability was reversed on 14.01.1992. Later,
Shri N. Kumar, nephew of G. Ramachandran remitted Rs. 12 lakhs on 23.1.1992, Rs. 5
lakhs on 24.1.1992 and Rs. 2 lakhs on 25.01.1992 totally a sum of Rs. 19 lakhs
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towards this liability and the same was credited into the account of Ramachandran on
04.02.1992 and adjusted towards the PBP liability and interest.
2. Again, on 05.02.1992, G.S. Subbaraman purchased another cheque bearing No.
79584035 issued by Ms. Malliga Saravanamuthu in favour of N. Kumar for a sum of 1
lakh US Dollars in the A/c of Union Bank, Switzerland, Zurich. On the same day, i.e.,
05.02.1992, Rs. 20 lakhs from the proceeds of the cheque purchased was credited into
the account of N. Kumar and remaining balance amount, Rs. 5,45,652/- was used to
create a short term Fixed Deposit for 46 days in the name of N. Kumar. On
07.02.1992, against the above said short term deposit, loan of Rs. 4,09,000/- was
sanctioned to N. Kumar and credited into the account of M/s. Nurit Inks (P) Ltd, by the
Senior Manager, Subbaraman.
3. The cheque so purchased on presentation for collection, returned on 19.02.1992
with endorsement ‘A/c closed’. The cheque was represented on 30.03.1992. Once
again the cheque got bounced on 09.04.1992 for the very same reason. A sum of Rs.
30,30,303/- was reversed into unpaid account on 02.07.1992, after lapse of 3 months.
To secure the foreign Bill Purchase (FBP) liability, the title deed of the house and the
building of one Chandrakanthamma situated at Mahalakshmi Street, T. Nagar, Chennai
was given to create the equitable mortgage on 07.02.1992.
4. As per the instruction of AGM, Mr. Raveendiran, Chief Manager in the Regional
Office, Madras South inspected the Mylapore Branch and verified the transaction
relating to the foreign Bill Purchase presented by Ramachandran and N. Kumar. He
reported several irregularities in the two cheques purchased by Subbaraman. The
irregularities includes purchase of bills exceeding the limit, non intimation to the
higher authorities, discounting the cheques to the customers who did not enjoy the
foreign bill purchase facility, delay in reversing the unpaid money, creating equitable
mortgage of the property without the consent of the owner, anti-dating the Equitable
Mortgage in the EM register.
5. Meanwhile, Tmt. Chandrakanthamma gave a written complaint to the Chairman
cum Managing Director of Indian Bank on 08.09.1992 alleging that the title deed of
her property was obtained from her by one Ramalingam@M.R. Lingam along with
signed papers on false promise and misrepresentation. Later misused to create
equitable mortgage for the loan sanctioned to M/s. Nurit Inks(P) Ltd., in connivance
with bank officials.
6. After giving opportunity to the bank officials involved in the above said
transactions, being primafacie satisfied that Bank officials in connivance with some
private individuals had committed offence of cheating, criminal breach of trust,
fabrication of accounts and criminal misconduct pursuance of criminal conspiracy,
criminal complaint was lodged by the Chief Officer Vigilance attached to Indian Bank,
to the Superintendent of Police, CBI, ACB/MAS on 31.05.1993. Same was taken up for
investigation and final report filed against 1).Subbaraman, Chief Manager Indian Bank,
Mylapore Branch, 2). Mr. R. Venkatesan, Manager, Indian Bank, Mylapore Branch, 3).
Tmt. Geetha Officer, Indian Bank, Mylapore Branch, 4). Mr. G. Ramachandran
Managing Director of M/s. Nurit Ink (P) Ltd, 5) N. Kumar and 6) M.R. Ramalingam.
7. The trial court took cognizance of the complaint, framed charges against the
above named accused and tried them for offences under sections 120-B, 420, 477 A of
IPC and 13(2) r/w 13(2) of Prevention of Corruption Act, 1988.
8. To prove the guilt of the accused persons, the prosecution examined 16
witnesses, marked 140 exhibits. In defence 11 exhibits were marked. After trial, the
court below held them guilty and sentenced them as under:
Rank of the Accused Conviction under Section Sentence imposed by the
Trial Court
A1 1. Under Section 120-B 1. To undergo 1 year R.I.
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r/w 420, 477 A IPC and 13

and to pay a fine of Rs.
(2) r/w 13(1)(d) of PC. Act
10,000/- in default 3
2. under Section 13(2) r/w
months S.I
13(1)(d) of PC. Act
2. To undergo 1 year R.I.
(2 counts) and to pay a
fine of Rs. 10,000/- each,
in default 3 months S.I.
Total Rs. 30,000/-
A2 Under section 477 A IPC To pay a fine of Rs.
months S.I
A3 Under section 477 A IPC To pay a fine of Rs. 5,000/
-, in default 3 months S.I
A4 1. Under section 120-B r/w 1. To undergo 1 year R.I.
420, 477 A IPC and 13(2) and to pay a fine of Rs.
r/w 13(1)(d) of PC. Act 10,000/-, in default 3
2. Under section 109 IPC months S.I
r/w 13(2) r/w 13(1)(d) of 2. To undergo 1 year R.I.
PC. Act and to pay a fine of Rs.
20,000/-, in default to
undergo 3 months S.I.
Total fine Rs. 30,000/-
A5 1. Under Section 120-B. 1. To undergo 1 year R.
420, 477 A IPC and 13(2) Iand to pay a fine of Rs.
r/w 13(1)(d) of PC. Act 10,000/- and in default 3
2. Under section 109 r/w months S.I
13(2) r/w 13(1)(d) of PC. 2. To undergo 1 year R.I.
Act and to pay a fine of Rs.
months S.I.
Total fine of Rs. 30,000/-
A6 1. Under section 120-B, 1. To undergo 1 year R.I.
r/w 420, 477A IPC and 13 and to pay a fine of Rs.
(2) r/w 13(1)(d) of PC. Act 10,000/- and in default 3
2. Under section 420 IPC months S.I
2. To pay a fine of Rs.
20,000/- in default to
undergo 3 months S.I.
Total fine of Rs. 30,000/-
9. Also directed the complainant/CBI to proceed under Criminal Law Amendment
Act, 1944 to recover the amount due to the bank from A-1, A-4 to A-6.
10. Aggrieved by the judgment of conviction and sentence and the direction to CBI
to proceed under Criminal Law Amendment Act. A-1, A-4 to A-6 have preferred
appeals. Pending appeal A-4 Ramachandran died on 17.12.2011. Memo filed to the
effect and same recorded. Hence appeal Crl.A. No. 448 of 2010 is abated.
11. The appeals filed by the respective accused are Crl.A. No. 445 of 2010 -
Appellant Thiru. Subbaraman(A-1); Crl.A. No. 438 of 2010-Appellant Thiru. N. Kumar
(A-5) and Crl.A. No. 479 of 2010 - Appellant Thiru. N. Ramalingam (A-6). For the sake
of convenience, the appellants are referred by their respective ranking before the trial
court.
12. The learned counsels appearing for the appellants would submit that the trial
Court judgment is liable to be set aside for multiple reasons. Primary attack on the
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legality of the trial court judgment is on admitting the photocopies of the documents
in spite of objection and without any justification on the part of the prosecution for not
producing the primary documents. Further, admission of photocopies of documents
which are entries found in banker’ book without certificate by the competent authority
of the bank renders it in-admissible. Inspite of objection raised by the defence while
marking those photocopies on the ground that it is against the Bankers Book Evidence
Act, the trial court has taken those in-admissible documents as exhibits. Further,
relying upon the inadmissible documents, the trial court had held the appellants guilty
of the charges. The reasoning given by the trial court to over-rule the objection for
marking the secondary evidence without satisfying the conditions of section 65 of
Evidence Act is contrary to law and for that reason itself the trial court judgment is
liable to be set aside.
13. Further, the learned Senior Counsel appearing for the appellant in Crl.A. No.
445 of 2010 who was the Chief Manager, would submit that the power and limit of the
Manager to purchase foreign bills is not restricted to Rs. 3.5 lakhs as spoken by the
witnesses for prosecution. The limit prescribed is only of advisory in nature, based on
the credibility of the account holder, the Branch head can exceed the limit prescribed
and intimate the same to the higher authorities. In this case, M/s. Nurit Inks (P) Ltd.
being a valued customer who has brought substantial foreign deposits was extended
the facility of discounting the bills. In his explanation dated 28.08.1992 and
19.10.1992 marked as Ex.P-6, Ex.P-9 respectively. The appellant has given the
reasons for the purchase of foreign bills. The trial court instead of taking it as plausible
explanation, had taken it as admission of crime.
14. The equitable mortgage of the property offered by Tmt. Chandrakanthamma is
a genuine and valid. PW-5 who conducted enquiry on the complaint of
Chandrakanthamma has submitted his report Ex.P-96 to the CMD. Wherein, he has
categorically said that the allegation of Chandrakanthamma that her signatures were
obtained in blank papers misrepresenting that it is for Indian Overseas Bank is
incorrect, since she has signed in the printed format of Indian Bank. She being a
literate, her complaint is only an after thought to save her property from being
proceed. The interested PW-11, is an interested witness. She is not the competent
witness to speak about the genuineness or otherwise of the documents executed by
Chandrakanthamma. The trial had given undue reliance upon the sequences of the
entry made in the equitable mortgage register marked as Ex P-131. It is not a
contemporaneous document and it is maintained for internal reference and change in
sequence in recording the deposit of title deed, is not so material to disbelief the
creation of equitable mortgage.
15. Further, the plea in the plaint (Ex.D-1) filed by the Bank in the civil suit for
recovery of money against the borrower and others is contrary to the allegation in the
criminal complaint. In the plaint the bank admit the creation of equitable mortgage
and its validity, whereas, in the criminal prosecution it is contended that the Equitable
mortgage is not a valid mortgage and it was anti-dated by fabrication of records. This
inconsistent plea by the bank clearly exposes the lacunae in the prosecution which was
not taken note by the trial court.
16. The two cheques of foreign origin was purchased by A-1 on the instruction of
Zonal Manager. The practise of oral instructions from higher authorities to purchase
bills was in vogue at the relevant point of time. This fact is admitted by the
prosecution witnesses also. Before framing charges, to prove his innocense, the Fund
Book maintained by the bank was sought to be produced by A-1. That petition was not
entertained by the court below. During the trial before examination of witnesses,
applications for production of funds book for the current account, over draft and
foreign bills purchase for the period November 1991 to September 1992 along with
monthly audit report, the delivery book was sought by the appellant but not produced
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by the prosecution stating not available with them. By withholding these documents
the prosecution has deprived the opportunity to establish that he had purchased those
two cheques as per oral instruction of the Zonal Manager and same was intimated to
the superior officer. Further, the returned cheque was received by his subordinate V.S.
Narayanan (PW-13) who kept in his custody but not brought to his knowledge.
17. Per contra, the Special Public Prosecutor would submit that the purchase of
foreign bills beyond the permissible limit is a fact admitted by A-1. The foreign bill
purchase facility was not provided to Ramachandran of M/s. Nurit Ink (P) Ltd. or N.
Kumar, however A-1 in abuse of his official position purchased the first cheque dated
13.12.1991 which was drawn by Ms. Malliga Saravanamuthu @ Anitha in favour of
third party, got endorsed in favour of G. Ramachandran (A-4) and the second cheque
(Ex.P-41) dated 27.1.1992 drawn in favour of N. Kumar without obtaining permission
of or information to the higher official. That apart, before the cheque Ex.P.127 could be
realised a sum of Rs. 18,3,932/- credited into the bank account of Ramachandran,
which he withdrew immediately. Likewise, before the second cheque could be realised,
a sum of Rs. 25,77,320/- was debited into the account of N. Kumar (A-5) form which
he transferred a sum of Rs. 20 lakhs into the account of Ramachandran (A-4) and
created a short term deposit for Rs. 5,45,652/- in the name of N. Kumar (A-5). From
out of this FD, loan of Rs. 4,09,000/- granted to A-5 by A-1.
18. Both the cheques purchased by A-1 against the banking norms, were
dishonoured. While a sum of Rs. 19 lakhs was later paid by A-5 in the name of Malliga
Saravanamuthu to clear the debit entry occurred due to the purchase of the first
cheque(Ex.P-127). The debit occurred due to the purchase of second cheque (Ex.P-41)
was not repaid till date. The bank could later realise only a part of the debt by
adjusting the FD's and for the balance amount had initiated suit for recovery of
money.
19. While none of these averments are denied by the appellants, the only
contention raised by appellants is that there was no intention to cheat at inception,
there was no meeting of mind between them to commit any illegal act or legal act
through illegal means to constitute criminal conspiracy. However, the prosecution had
proved beyond doubt that from the inception of purchasing the foreign bills in excess
of Rs. 3.5 lakhs which is the permissible limit for A1, allowing A-4 and A-5 to withdraw
the money immediately after the same being credited into their account before
realisation of those cheques, non intimation of return of cheque purchased, belated
debit entry put together cumulatively proves the ill-design of the accused persons to
do the illegal act by illegal means and thereby cheating of the bank a tune of Rs.
44,41,252/-.
20. The entry in the page No 46 (Ex.P.136) of the Equitable Mortgage Register
(Ex.P.131) on the face of it reveals interpolation and fabrication of record. To
substantiate the fabrication, Tmt. Chandrakanthamma who is the mortgagor had also
denied the execution of equitable mortgage by deposit of title deed, to secure the loan
availed by Ramachandran. Therefore the plea of the appellants that the said entries in
the EM register marked as Ex.P.136 is genuine does not hold water, more particularly,
when it is proved beyond doubt by the prosecution that on 27.2.1992, the day on
which the alleged deposit of deed was made in the presence of A-2(Venkatesan), he
was not in Chennai but was at Mumbai in connection with RBI training. Therefore, the
facts elucidated through the witnesses and the facts admitted by the accused persons
suffice to hold them guilty.
21. Heard the counsels for the appellants and the Special Public Prosecutor
representing the CBI.
Points for consideration
22. Whether the prosecution case discloses any criminal intention to cheat the Bank
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and whether the trial court erred in admitting secondary evidence of documents not
properly certified under the Banker's Book Evidence Act and whether reliance of those
documents had resulted in miscarriage of justice.?
23. The criminal law was set into motion pursuance to the complaint Ex P-2 dated
31.05.1993 given by (PW-2) P. Gopalakrishnan, Vigilance department of Indian Bank.
In his chief examination PW.2 admits the basis of his complaint is the concurrent audit
report done by K. Ramakrish & Co., Chartered Accountant. The said audit report dated
18.07.1992 is marked as Ex P-3. marking of this document was objected by the
defence being a photocopy and same has been marked with objection. On receipt of
the concurrent audit report, the General Manager (I&V) had deputed Shri. V.
Krishnamurthy of Inspection department to conduct vigilance inspection of the branch.
Accordingly V. Krishnamurthy has caused inspection and had submitted his report
dated 23.07.1992. The report is signed by Krishnamurthy and one Sashidar, both not
examined and the report is marked with objection as Ex.P-4, is again a photocopy. To
the show cause notice, A-1, has given his explanation vide Ex P-6. Meanwhile, the
bank has received a complaint from Smt. Chandrakanthamma on 12.09.1992 alleging,
by misrepresentation the title deed of her house was obtained by A-6 and misused to
create equitable mortgage without her consent and knowledge. For the said allegation,
explanation has been sought from A-1 and he has given his explanation (Ex.P-9) on
19.10.1992.
24. Based on the complaint given by Smt. Chandrakanthamma the bank has
investigating the matter by deputing PW.5 Ravindeeran. He has gone in detail about
the purchase of foreign bills and discounting the same, in the light of the allegation
made by Chandrakanthamma regarding creation of equitable mortgage over her house
property. The said report is marked as Ex.P.10 (= Ex P-96). In this report, PW-5 has
categorically said that, the complaint of Chandrakanthamma alleging her signatures
were obtained in blank white papers is false. She has signed in the approved printed
format of the bank having the India Bank logo and the Bank name at the top. Further,
before creating equitable mortgage, the bank has obtained legal opinion from the
penal lawyer Mr. T.V. Ravikumar Advocate and he has opined that Chandrakanthamma
have valid and marketable title over the property and she can create a valid equitable
mortgage.
25. The equitable mortgage register which is marked as Ex.P.131 and the relevant
entry of the equitable mortgage in respect of the property of Chandrakanthamma
which is found in page 46 of the said register indicates the title deed was deposited on
27.02.1992. It has been deposited by C.K. Chandrakanthamma in the presence of R.
Venkatesan-A-2 (Bank Official). The Trial Court taking note of the entries found in the
page 45 which is dated 16.04.1992 and the entries found in the page 47 which is
dated 08.05.1992, has come to a conclusion that the disputed entry found in page 46
is anti-dated, therefore, it is an interpolation inserted in between, which amounts to
falsification of the documents. To verify whether such a conclusion is correct, this
Court gone through the entries made in Ex.P.131(the equitable mortgage register) and
it is found that for the reason best known, several pages in between are left unwritten.
The entries so made are not essentially in seriatim as per dates. for instance, while the
entry in page 27 is inrespect of the deposit of title deed in the name of Mrs. K. Hema
on 06.09.1991 and the entry in page 28 is in respect of deposit of title deed in the
name of K. Subaramaian on 06.12.1991, the entry found in next page 29 is dated
14.11.1991 inrespect of deposit of title deed in the name of B. Ramakrishnaprasad.
26. This court is bound to point out that when the bank internal Vigilance itself has
found that Chandrakanthamma has knowingly signed the documents to create
equitable mortgage and same has been recorded in the equitable mortgage register.
Just because the jumble in the sequence of dates found in the entries, it cannot be
termed as false entry. It is a fact that original title deed of Chandrakanthamma had
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been given to the Indian bank. Based on the title deed, legal opinion has been
obtained and for internal purpose the creation of equitable mortgage has been
recorded in Ex.P.131 register and the relevant entry is marked as Ex.P.136.
27. No doubt, the prosecution has established through witnesses that (A2)
Venkatesan was not in Chennai on 27.02.1992 and he was on training at Mumbai. But
it does by itself make the entries in the equitable mortgage a false entry. Venkatesan
(A2) during the relevant point of time had been serving as Manager of the Branch and
his name has been written in the register as the bank officer who was present at the
time of depositing the title deed. Except reference of his name against the said printed
column, there is no material to arrive at a conclusion that the entire entry found in
Page 46 which is marked as Ex.P.136 in the equitable mortgage register (Ex.P.131) is
a false entry. Therefore the charges against the appellants and other accused that the
creation of equitable mortgage of the property in the name of Chandrakanthamma is a
fabricated event is not correct.
28. To make out the case of cheating, the ingredient of deception at the inception is
required. As far as this case is concerned, except the excessive exercise of discretion
by extending the facility of discounting foreign bills on a bonafide belief that they are
genuine transaction, this Court could not find out any element of culpability on the
part of A1 who in his explanations which is marked as Ex.P.6 and Ex.P.9 has placed
before his higher officials how and under what circumstances he extended the facility
to the M/s. Nurit Inks(P).Ltd, Managed by A4 and A5.
29. Yet another charge against A1 is delay in reversing the returned cheque value
of Rs. 1 lakh US Dollars purchased by A-1 and discounted in favour of A5. In his
explanation letter Ex P-6, A1 had recorded that Ramachandran A4 who had been a
long time customer had canvassed for the branch foreign currency deposits to tune of
60,000/- US Dollars and considering his financial credential, he exercise his discretion
to purchase cheque of 1 lakh US dollars and credited the proceeds in the SBI account
of N. Kumar (A5). Having realized that the cheque was returned unpaid with the
reason of “A/c closed” immediately additional collateral security(property of
Chandrakanthamma) had been obtained after getting the legal opinion. Further,
Ramachandran (A4) and N. Kumar (A5) represented that the cheque had been
returned by mistake and requested to represent the same. So, he (A1) again
represented the cheque without reversing the entry made in foreign bill purchase,
hoping that this time the cheque will be honoured, which did not happened. He has
admitted that, in the anxiety to get foreign deposits, he had purchased the cheque for
an amount in excess of his powers, without getting permission of the higher authority.
In view of his action taken by securing adequate security for the recovery of money,
he has sought for condonation of his lapse. However, Ex.D.1 the plaint copy reveals
that M/s. Nurit Inks (P).Ltd., Ramachandran (A5) and N. Kumar (A6) has not repaid
the loan and for recovery of the same proceeding has been initiated.
30. The learned counsel appearing for the first accused also pointed out that when
application to produce documents was filed during trial, the prosecution failed to
produce the following documents which are very vital to prove his innocense.
i) File relating to the permission given by the Zonal office, Indian Bank to Nutrit Ink
Co, to open an account with Bank of Baroda.
(ii) FBP Register for the period November 1991 to September 1992.
(iii) Allocation Register from November 91 to September 1992.
(iv) Funds Book for current account, over draft and FBP for the period November
1991 to September 1992. Monthly Audit Report (AUM) for the period November
1991 to June 1992.
31. The above documents were not produced by the prosecution. Non-production of
these documents by the prosecution has caused grave prejudice to the accused.
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Further, it is contended by the learned counsel for the first accused that that if the
fund book of the Current Account, over draft facility and foreign bills for the period of
November 1991 to September 1992 had been produced, through these documents he
could have clearly proved that the purchase of foreign bills beyond the limit of Rs. 3.5
lakhs is within the discretion of the Chief Manager and normally foreign bills purchase
in excess of the said limit given post ratification by the Regional Office. This will be
reflected in the fund book which has been withheld by the prosecution.
32. This contention requires serious consideration in view of the fact that the
monthly Audit Report has been forwarded to Regional Office regularly. In case of any
serious violation in the action of A1 it would have been noticed by the audit and would
have been reflected in the monthly Audit.
33. On the part of A-4 and A-5, the Learned counsel content that they had no
intention of cheating the bank at any point of time. When the cheque of Ms. Malliga
Saravanamuthu@Anitha was presented, they bonafidely believed it will be honoured
since it was their commission towards canvassing deposits. Only later they realised
that they were duped by the said Malliga Saravanamuthu. Therefore, they went to
Malaysia embassy along with PW-12 (K.T. Solaiappan) and lodged complaint. They
came to know that, the said Malliga Saravanamuthu had cheated 300 to 400 people.
These facts are deposed by the prosecution witness PW-12. So they cannot be held
criminally liable for default in payment of due which is purely a civil action. The bank
having resort to recovery of due through civil suit on a different set of facts, the
prosecution with facts contra to the plaint pleading is not sustainable.
34. Broadly on assessing the facts as discussed above, foreign bills purchase
without permission, non reporting of return of the cheques with endorsement ‘account
closed’ are all obviously violation of the Banking Rules. The violation may be in
pursuance to any criminal intention also. Likewise, the discount of foreign cheque,
withdrawal of the amount immediately, non payment of the due arising out of
dishonour of the cheque all makes to hold A-4 and A-5 guilty of the charges. However,
this court is unable to venture further in this case, based on the documents which are
mostly the photocopies of the entries in the Bankers Book, Reports and the
communication between the parties, marked without satisfy the basic conditions laid
down in the Law of Evidence for admitting secondary evidence. The photocopies which
are marked as exhibits where objected by the defence at the inception during the
introduction itself and same had been taken on file with objection.
35. The photocopies of the documents which had been admitted in evidence on
objection are copies mechanically taken from the original. The prosecution has not
disclosed through its witnesses why the originals were not placed before the Court,
where the original documents are and under whose custody it is. To introduce a
secondary evidence the first and foremost requirement is that the person who rely
upon the secondary evidence of a document should first disclose the where about of
the original and reason to introduce the secondary evidence. In this case nothing of
such sort been done by the prosecution.
36. Chapter-V of the Indian Evidence Act deals with Documentary Evidence.
Section 61 of the Act provides that contents of documents may be proved either by
primary or by secondary evidence. Section 62 defines primary evidence as meaning
the document itself produced for inspection of the Court. Section 63 defines Secondary
evidence as meaning and including among others certified copies given under the
provisions of the Evidence Act. Section 64 provides that documents must be proved by
primary evidence except in the cases mentioned in the subsequent sections. Section
65 deals with cases in which secondary evidence relating to documents may be given.
37. For easy reference the relevant sections of Indian Evidence Act and Bankers
Book Evidence Act are extracted below; before proceeding further.
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Section 63 of the Indian Evidence Act 1872.

63. Secondary evidence.-Secondary evidence means and includes-
(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves
insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has
himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the
two have not been compared, if it is proved that the thing photographed was
the original.
(b) A copy compared with a copy of a letter made by a copying machine is
secondary evidence of the contents of the letter, if it is shown that the copy
made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is
secondary evidence; but the copy not so compared is not secondary evidence
of the original, although the copy from which it was transcribed was compared
with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral
account of a photograph or machine-copy of the original, is secondary
evidence of the original.
Section 65
38. Cases in which secondary evidence relating to documents may be given.-
Secondary evidence may be given of the existence, condition, or contents of a
document in the following cases:—
(a) When the original is shown or appears to be in the possession or power-of the
person against whom the document is sought to be proved, or of any person out
of reach of, or not subject to, the process of the Court, or of any person legally
bound to produce it, and when, after the notice mentioned in section 66, such
person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his
representative in interest;
(c) when the original has been destroyed or lost, or when the party offering
evidence of its contents cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this
Act, or by any other law in force in India to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which
cannot conveniently be examined in Court, and the fact to be proved is the
general result of the whole collection.
39. In cases (a), (c) and (d), any secondary evidence of the contents of the
document is admissible. In case (b), the written admission is admissible. In case (e)
or (f), a certified copy of the document, but no other kind of secondary evidence, is
admissible.
40. In case (g), evidence may be given as to the general result of the documents
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by any person who has examined them, and who is skilled in the examination of such
documents.
Bankers' Books Evidence Act, 1891
Section : 2 Definitions.
In this Act, unless there is something repugnant in the subject or context,
(3) bankers' books include ledgers, day-books, cash-books, account-books and
all other records used in the ordinary business of the bank, whether these records
are kept in written form or stored in a micro film, magnetic tape or in any other
form of mechanical or electronic data retrieval mechanism, either onsite or at any
offsite location including a back-up or disaster recovery site of both;
(8) certified copy means when the books of a bank,
(a) are maintained in written form, a copy of any entry in such books together
with a certificate written at the foot of such copy that it is a true copy of such
entry, that such entry is contained in one of the ordinary books of the bank
and was made in the usual and ordinary course of business and that such
book is still in the custody of the bank, and where the copy was obtained by a
mechanical or other process which in itself ensured the accuracy of the copy, a
further certificate to that effect, but where the book from which such copy was
prepared has been destroyed in the usual course of the bank's business after
the date on which the copy had been so prepared, a further certificate to that
effect, each such certificate being dated and subscribed by the principal
accountant or manager of the bank with his name and official title; and
(b) consist of printouts of data stored in a floppy, disc, tape or any other electro-
magnetic data storage device, a printout of such entry or a copy of such
printout together with such statements certified in accordance with the
provisions of section 2A.]
[(c) a printout of any entry in the books of a bank stored in a micro film,
magnetic tape or in any other form of mechanical or electronic data retrieval
mechanism obtained by a mechanical or other process which in itself ensures
the accuracy of such printout as a copy of such entry and such printout
contains the certificate in accordance with the provisions of section 2A.]
Section 4 of the Bankers' Bokks Evidence Act, 1891
4. Mode of proof of entries in bankers books.
Subject to the provisions of this Act, a certified copy of any entry in a bankers
books shall in all legal proceedings be received as prima facie evidence of the
existence of such entry, and shall be admitted as evidence of the matters,
transactions and accounts therein recorded in every case where, and to the same
extent as, the original entry itself is now by law admissible, but not further or
otherwise.
41. In this case, it is very unfortunate to point out that, most of the vital
documents such as cheques Ex.P.41 and Ex.P.127 which were alleged to have been
purchased by A-1 contrary to banking guidelines, the communications between the
Foreign Bank and the Overseas Branch of Indian Bank, the Statement of Bank
accounts in which the money had been credited and later withdrawn are not originals
but the photocopies. The photocopies which are exhibited are not public documents.
They are all communications between parties and accounts maintained by the bank.
Therefore, Section 65(e) does not apply. The documents which fall under Section 65(f)
should carry certificate as mandated under section 4 of the Banker's book Evidence
Act. Though the seal and signature of the Manager on those photocopies mention it as
‘certified copy’, in fact it does not fall within the meaning of certified copy as referred
under Section 65(e) or Section 65(f) of the Evidence Act, nor such certificate found on
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the exhibits satisfies the mandate of Section 4 of the Banker's book Evidence Act.
42. Normally, any party who wants to prove the content of the document is
required to lead evidence by production of the original document before the court
through its author. Under section 61, the original document can be presented before
the Court through the author, who created the document and it can be proved. In
alternate, when the content of the document is attempted to be proved by tendering
secondary evidence, such document can be tendered under section 63 read with
section 65 of the Evidence Act provided the conditions laid down in these sections are
satisfied. Section 63(2), permits, copies can be made from original by mechanical
processes which in themselves ensure the accuracy of the copy and copies compared
with such copies. But, in this case no witness from the prosecution has deposed that
the exhibits Ex.P.3 to Ex.P.8, Ex.P.11 to Ex.P.13, Ex.P.15, Ex.P.18, Ex.P.21, Ex.P.22,
Ex.P.42, Ex.P.65, Ex.P.85 to Ex.P.89, Ex.P.95 and Ex.P.98 with ‘certified copy’ seal are
photocopies made from original by mechanical processes and he ensure the accuracy
of the copy. In alternate some of the witnesses have admitted that they have not seen
the original.
43. In Smt. Rekha Rana v. Smt. Ratnashree Jain, Division Bench of Madhya Pradesh
High Court in R.V. Raveendran, Chief Justice and Justice Shantanu Kemkar reported in
AIR 2006 MP 107. after referring judgments of Hon'ble Supreme Court as well as High
Courts, including the judgment rendered by Roman Catholic Mission v. State of Madras
reported in 1966 AIR 1457. Concluded that when the originals were not produced at
any time nor was any foundation laid for the establishment of the right to give
secondary evidence, copies of original not admissible in the evidence. Further,
Production and marking of a certified copy as secondary evidence of a private
document (either a registered document like a sale deed or any unregistered
document) is permissible only after laying the foundation for acceptance of secondary
evidence under Clause (a), (b) or (c) of Section 65.
44. In H. Siddiqui (D) by LRS v. A. Ramalingam reported in (2011) 4 SCC 240 as
observed that;
“The provisions of Section 65 of the 1872 Act provide for permitting the parties
to adduce secondary evidence. However, such a course is subject to a large number
of limitations. In a case where the original documents are not produced at any time,
nor has any factual foundation been laid for giving secondary evidence, it is not
permissible for the court to allow a party to adduce secondary evidence. Thus,
secondary evidence relating to the contents of a document is inadmissible, until the
non-production of the original is accounted for, so as to bring it within one or other
of the cases provided for in the section. The secondary evidence must be
authenticated by foundational evidence that the alleged copy is in fact a true copy
of the original. Mere admission of a document in evidence does not amount to its
proof. Therefore, the documentary evidence is required to be proved in accordance
with law. The court has an obligation to decided the question of admissibility of a
document in secondary evidence before making endorsement thereon. (Vide Roman
Catholice Mission of State of Madras, State of Rajasthan v. Khemraj, LIC v. Ram Pal
Singh Bisen and M. Chandra v. M. Thangamuthu)”
45. In J. Yashoda v. K. Shobha Rani reported in (2007) 5 SCC 730 Hon'ble
Supreme Court has held that;
“7. Secondary evidence, as a general rule is admissible only in the absence of
primary evidence. If the original itself is found to be inadmissible through failure of
the party, who files it to prove it to be valid, the same party is not entitled to
introduce secondary evidence of its contents.
8. Essentially, secondary evidence is an evidence which may be given in the
absence of that better evidence which law requires to be given first, when a proper
-----------------------------------------------------------------------------------------------------------------------------------------------------------
explanation of its absence is given. The definition in Section 63 is exhaustive as the

Section declares that secondary evidence “means and includes” and then follow the
five kinds of secondary evidence.
9. The rule which is the most universal, namely that the best evidence the nature
of the case will admit shall be produced, decides this objection that rule only means
that, so long as the higher or superior evidence is within your possession or may be
reached by you, you shall give no inferior proof in relation to it. Section 65 deals
with the proof of the contents of the documents tendered in evidence. In order to
enable a party to produce secondary evidence it is necessary for the party to prove
existence and execution of the original document. Under Section 64, documents are
to be provided by primary evidence. Section 65, however permits secondary
evidence to be given of the existence, condition or contents of documents under the
circumstances mentioned. The conditions laid down in the said Section must be
fulfilled before secondary evidence can be admitted. Secondary evidence of the
contents of a document cannot be admitted without non-production of the original
being first accounted for in such a manner as to bring it within one or other of the
cases provided for in the Section.
46. As a result, of the above said discussion, this Court has come to the irresistible
conclusion that the prosecution has miserably failed to prove the charges against the
appellants through the best evidence available with them. Relying upon the
photocopies of documents not duly certified in the manner known to law, the
prosecution has failed to prove the charges beyond reasonable doubt. Consequently,
the Criminal Appeals Nos. 445, 448, 438 & 479 of 2010 are allowed. The Judgment of
the Trial Court is liable to be set aside. The bail bond executed if any, shall stand
cancelled. Fine amount paid, if any, shall be refunded to the appellants.
47. Before parting, this Court wish to add, atleast in future both the prosecution as
well as the trial Court shall be careful while receiving photocopies of the documents.
The trial Court should ensure whether the conditions laid in Section 65 of the Evidence
Act are fulfilled before receiving the Secondary Evidence. In this Case, right from
marking of the Ex.P.1, the defence has objected for marking of photocopy document.
Neither the prosecution nor the Court had addressed the objection immediately. This
has caused miscarriage of justice. This Court hopes that atleast herein after the Court
below be abreast of the legal position in admitting the Secondary evidence, especially
the photocopies and act accordingly. This Court also hasten to add, the acquittal in the
Criminal prosecution shall have no bearing on the departmental enquiry against A1 or
the civil proceedings pending for recovery of money.
———
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G. Subbaraman vs. State

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G. Subbaraman vs. State

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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Tuesday, December 12, 2023

In the High Court of Madras

Crl.A. No. 445 of 2010

r/w 420, 477 A IPC and 13

Section 63 of the Indian Evidence Act 1872.

explanation of its absence is given. The definition in Section 63 is exhaustive as the

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