1. The 1st accused in C.C.No.4 of 2003 on the files of the Court of the Special Judge (SPF/CBI)-I, Ernakulam has filed this appeal challenging conviction and sentence imposed against him as per judgment dated 24.12.2007.

2. Heard the learned counsel for the appellant and the learned Special Public Prosecutor appearing for CBI/the prosecution.

3. The prosecution case is that accused Nos.1 and 2 hatched conspiracy to grant loan of Rs.5 lakhs in the name of Cheriyan Varghese, the father of the 2nd accused and later this loan was released in the account of the 2nd accused. This loan was sanctioned without the knowledge of the Zonal Office. The further case is that in pursuance of the criminal conspiracy, in order to secure more funds for the personal needs of the 2nd accused, the 1st accused sanctioned Housing loan for Rs.5 lakhs in the name of Cheriyan Varghese, the father of the 2nd accused. The amount under housing loan was released and it was credited in the CC account of the 2nd accused. This was done without the knowledge of Zonal office. The said amount was availed by the 2nd accused for his personal needs. The 1st accused in pursuance of the criminal conspiracy by abusing his official position dishonestly sanctioned Rs.1 lakh as clean overdraft to the 2nd accused on 15.11.1997. The amount sanctioned under the above overdraft was transferred to the Cash Credit account No.201 of the 2nd accused. The 1st accused in pursuance of the criminal conspiracy dishonestly sanctioned two clean Overdrafts of Rs.2 Iakhs each in the name of one Varghese Daniel, the brother-in-law of the 2nd accused and one M.G.Baby, a close associate of the 2nd accused. Both of them were strangers to the Bank and these loans were sanctioned by the 1st accused in order to provide funds to the 2nd accused. The 1st accused also dishonestly and by abusing his official position purchased clean bills presented by the 2nd accused in his cash credit account without intimating the Zonal office, to the tune of Rs.2 lakhs on 19.01.1998, Rs.2.5 lakhs on 06.02.1998, Rs.1.6 lakhs on 16.03.1998, Rs.2 lakhs on 03.04.1998 and Rs.2.25 lakhs on 16.04.1998. The cheque purchased on 16.04.1998 for Rs.2.25 lakhs was returned unpaid. Thereafter one V.G.Narayanan Unnithan was taken by the 2nd accused to the 1st accused intimating him that the Manager was arranging loan from SBT, Pandalam. The 1st accused Ramachandran and the 2nd accused Moncy Cheriyan, in furtherance of the said conspiracy requested Narayanan Unnithan to make a transfer of 12.50 cents of land belonging to him and his wife, Meera to a person in Pandalam area in order to sanction a loan against the said transfer. Narayanan Unnithan was told by the 1st accused and 2nd accused that a loan would be sanctioned in the name of the buyer and the proceeds of the loan would be given to Narayanan Unnithan as the seller of the property. Accordingly, the property was transferred in the name of one Simon Daniel. Then the 1st accused dishonestly sanctioned housing loan to the tune of Rs.4 lakhs and by abusing his official position. The amount was transferred to the joint SB Account of Narayanan Unnithan and Meera and the cheque book issued to this account was kept by the 1st accused. On 01.03.1999, three cheques of the above account in the name of Narayanan Unnithan and Meera amounting to Rs.2,25,800/-, Rs.84,200/- and Rs.90,000/- were fraudulently obtained from Narayanan Unnithan and Meera by the 1st accused. Thereafter, the 2nd accused prepared and gave three credit vouchers of similar amount and gave the same to the 1st accused. The 1st accused dishonestly sent the credit vouchers to the cash counter of the paying Cashier without the consent of Narayanan Unnithan transferred the amount of Rs.4 lakhs to various accounts as per the credit voucher. Narayanan Unnithan was thereby cheated by the 1st accused and the 2nd accused. The amount outstanding in the overdraft account in the name of Varghese Daniel as on 22.05.2000 was Rs.58,519/-. The housing loan account in the name of Simon Daniel became an NPA and the amount outstanding this account as on 22.05.2000 was Rs.4,44,993/-. On 18.08.1998 the 2nd accused brought George Daniel one of his friends to avail Rs.2 lakhs clean overdraft and the 1st accused dishonestly sanctioned Rs.2 lakhs overdraft in the name of George Daniel and transferred the amount to the cash credit account 201 of the 2nd accused. The 1st accused in furtherance of his criminal conspiracy with the 2nd accused released 23 cents of land in the name of the 2nd accused to sell the property to one A.Joseph, which was kept as Collateral Security without informing the matter to Zonal Office. The 1st accused by abusing his official position sanctioned a housing loan of Rs.2.3 lakhs to Joseph for purchasing this land. The 1st accused dishonestly issued an office cheque to Joseph asking to withdraw the cash and then to deposit the amount in the Cash Credit account 201 of the 2nd accused. The 1st accused abused his official position to disburse the amount in lumpsum. Rs.30,000/- was paid to Joseph to meet the transaction expenses. This account also has become an NPA and the outstanding amount in this account as on 28.03.2001 was Rs.2,71,933/-. The 1st accused and the 2nd accused decided to sell the property of Cheriyan Varghese where a housing loan of Rs.5 lakhs was sanctioned by the bank. The 1st accused forwarded a proposal to Zonal Office for availing Rs.12 lakhs as housing Loan in the name of two NRIs for purchasing this property. The 1st accused dishonestly hidden the fact from Zonal office that the bank had already sanctioned a housing loan on the same property. The 1st accused by abusing his official position dishonestly sanctioned a clean overdraft of Rs.2 lakhs in the name of one Santhamma George, wife of one of the NRI partner and this amount was deposited in the SB account of one Prema Pappachan, her sister and wife of another NRI partner to show as margin money for the proposed loan. This amount was transferred to the fixed deposit from the SB account. Thus the acts of the 1st accused and the 2nd accused, State Bank of Travancore, Pandalam sustained a wrongful loss of Rs.27,00,349/- thereby the 1st accused and the 2nd accused committed offences punishable under Section 120B read with Section 420 of the Indian Penal Code (in short ‘IPC’) and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short ‘the PC Act, 1988’).

4. The Special Courtframed chargefor thesaid offences, on completing pre-trial formalities and proceeded with the trial. During trial, PW1 to PW28 were examined and Exts.P1 to P115 were marked on the side of the prosecution. During the prosecution evidence, Exts.D1 to D3 contradictions were marked on the side of defence. Thereafter, the accused persons were examined under Section 313(1)(b) of Code of Criminal Procedure and their explanations to the incriminating circumstances were recorded. Availing the opportunity given by the Special Court to adduce defence evidence, the accused persons examined DW1 and DW2 and marked Exts.D4 to D26 on the side of defence. The learned Special Judge considered the arguments on the issue and appraised the evidence. Finally, the Special Court found that accused Nos.1 and 2 committed offences punishable under Section 120B read with Section 420 of the IPC, while the 1st accused found guilty for the offences punishable under Section 13(1)(d) read with 13(2) of the PC Act, 1988. Accordingly, accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for a period of 3 years each and to pay a fine of Rs.2 lakhs each and in default of payment of fine to undergo simple imprisonment for a period of one year each and the 1st accused was sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs.1 lakh and in default of payment of fine to undergo simple imprisonment for a period of six months.

5. Multifold contentions were raised by the learned counsel for the 1st accused/appellant while assailing the verdict of the Special Court. The learned counsel appearing for the 1st accused/appellant argued that the evidence available in this case to fasten criminal culpability upon the 1st accused is insufficient, rather not free from doubts. The Special Court, without appreciating the evidence and on erroneous analysis of the circumstances alone, entered into conviction. According to the learned counsel for the 1st accused/appellant, during 1997, when the 1st accused /appellant took charge as the Chief Manager of the Pandalam Branch of the State Bank of Travancore, the business of the branch was low and there was pressure to increase the business focusing marketing plans finalized after discussion with the Assistant General Manager. Accordingly, the 2nd accused, who was the proprietor of Mamoottil Rubber Agencies, was introduced to the Bank by PW2, who was the Assistant Manager (Advances), Mammoottil Rubber Agencies maintained cash credit facility with the Central Bank of India, Kaipattur Branch for Rs.5 lakhs and after initial discussion and taking note of the absolute necessity, a proposal for Rs.15 lakhs was recommended to the Zonal Office as the Chief Manager had powers to sanction cash credit limit of Rs.10 lakhs only. Thereafter, the accused found that a loan of Rs.10 lakhs could be granted by him without the authority of the Zonal Office, he had granted Rs.10 lakhs. Therefore, no illegality or criminal overt acts was done by the accused. It is also submitted that the evidence available did not show any dishonest intention as alleged, so as to find commission of offences punishable under the PC Act, 1988, with the aid of Section 120B of the IPC by the accused. Therefore, the conviction and sentence are liable to be interfered with.

6. Whereas, the learned Special Public Prosecutor for the CBI zealously opposed interference in the verdict impugned and submitted that the evidence adduced by the prosecution, substantially proved the offences beyond reasonable doubt and therefore, the verdict could not be interfered with.

7. Adverting to the rival arguments, the points arise for consideration are;

                  (i) whether the Special Court is right in holding that accused Nos.1 and 2 committed offence punishable under Section 120B read with 420 IPC?

                  (ii) whether the Special Court is right on holding that accused Nos.1 and 2 committed offence punishable under Section 120B?

                  (iii) whether the Special Court went wrong in holding that the 1st accused committed offence under Section 13(1)(d) read with 13(2) of the PC Act, 1988?

                  (iv) Is it necessary to interfere with the verdict impugned for any reason?

8. Point Nos. (i) to (iv)

The prosecution allegation is confined to grant of credit facility including CC Account in the name of the 2nd accused for Rs.10 lakhs and OD facility for Rs.1 lakh in the name of the 2nd accused and also another housing loan amount to the tune of Rs.5 lakhs in the name of Cheriyan Varghese, the father of the 2nd accused, who was aged 70 years at the time of sanctioning the loan. The specific case of the prosecution is that the 1st accused had no right to sanction Rs.10 lakhs in an application, which was forwarded to Zonal Office for sanction when Rs.15 lakhs was applied for. That apart, the Zonal Office sanctioned Rs.10 lakhs, on condition of taking four properties as security while granting loan. Out of the said four properties, only two properties were accepted by the 1st accused and the title documents of other two items of properties were found defective. Thereafter, out of the two properties accepted as security, the 1st accused released property having an extent of 23 cents without the sanction of the Zonal Office to the 2nd accused. Later, the 2nd accused sold the property to Joseph and obtained housing loan amounting to Rs.2,30,000/-. Out of the said amount of Rs.2,00,000/- was credited to the account of the 2nd accused.

9. As deposed by PW1 and PW2, who are the Chief Manager of Guruvayoor Branch of SBT, during 2002-2006 and the Manager of Kodannur Branch of SBT and worked as Manager, SBT Pandalam from May 1997 to May 2000 as Assistant Manager, when loan was sanctioned by the Zonal Office, the permission of the Zonal Office is necessary to change any one of the condition of the sanction order and in this regard, Ext.P1 circular No.46/1994 and Ext.P2 circular No.48/1998 were tendered in evidence through PW1. It is discernible from Ext.P3, the application put up for loan was forwarded to Zonal Office and the 1st accused dishonestly and by abusing his position as Public Servant sanctioned Rs.10 lakhs acting on Ext.P3 loan application and this was beyond his discretionary power. But, the contention of the 1st accused is that the 1st accused who held the post of Chief Manager of the Branch had an authority to sanction loan upto Rs.10 lakhs and therefore grant of Rs.10 lakhs as loan by the Chief Manager is, in no way, either illegal or irregular. In addition to that there is serious allegation in this case and the same is centered on non- obeying of the conditions imposed by the Zonal office by the first accused while issuing Ext.P4(b) sanction. It is relevant to note that the 1st accused, in fact, sanctioned the loan for Rs.10 lakhs on 15.11.1997 even before issuance of Ext.P4(b) sanction and the sanction was issued only on 19.11.1997. It has been specifically provided in Ext.P4(a) that the 1st accused should obtain four items of property as security while granting the loan. But, the 1st accused released the entire loan amount without obtaining four items of properties as mandated in Ext.P4(a), after accepting two items of properties as security, on noticing that the other two items of properties and the title thereof were defective. Apart from that, one item of property having an extent of 23 cents was also released before repayment of the loan. In addition to that, when the 2nd accused applied for a cash credit facility for Rs.1 lakh, the 1st accused sanctioned the overdraft facility to the tune of Rs.1 lakh to the 2nd accused on getting a promissory note and the letter was shown as that of the 2nd accused and the amount was withdrawn and credited in the C.C. Account No.201 of the 2nd accused and Ext.P7 is the credit voucher for the same and Ext.P30 is the Overdraft ledger in the name of the 2nd accused. The prosecution case further is that when the 2nd accused applied for a housing loan in the name of Cheriyan Varghese, the father of the 2nd accused, by fabricating the signature of Cheriyan Varghese as per Ext.P29 file, the said loan also was sanctioned by the first accused. When Ext.P29(a), the application for loan allegedly to be put in by Cheriyan Varghese was forwarded to compare the signature of Cheriyan Varghese therein with that of his admitted signature, PW2, the expert, opined as per Ext.P93 report that the signature in Ext.P29(a) is not that of Cheriyan Varghese, supporting the prosecution allegation regarding fabrication of housing loan application by the the 2nd accused in his father’s name.

10. In this connection, when PW26 Cheriyan Varghese was examined, he deposed that he had signed the application as against the FSL Report, therefore the learned Special Judge disbelieved the evidence of PW26 Cheriyan Varghese as one which was intended to save his son and accepted the FSL Report and the evidence of PW2 to hold that in Ext.P29(a), Cheriyan Varghese did not sign and the same was a forged application. In the instant case, the further case of prosecution is that Cheriyan Varghese was aged 70 years at the time of filing Ext.P29(a) application and the Branch Manager had no authority to sanction housing loan to a person aged more than 65 years. Thus, if at all Ext.P29(a) was signed and put up by PW26, the loan granted in favour of Cheriyan Varghese who was aged 70 at the time of granting the loan, is illegal. The evidence of PW17 Narayanan Unnithan would show that he was indebted to various persons and during this period, he had noticed a paper publication to the effect that loan would be made available on the security of immovable properties. According to him, he was taken before the 2nd accused in connection with the loan transaction and the 2nd accused informed him that he had connection with the 1st accused and loan would be arranged. In order to sanction the loan, the property of Narayanan Unnithan should be transferred in favour of an NRI and the 2nd accused made arrangements for the same with PW14, (an NRI). When PW14 inspected the property for purchase, he noticed that the value of the property was much below than that of the proposed loan amount and thereby he did not agree for the purchase of the property.

11. Simon Daniel was the landlord of the building in which the 2nd accused was conducting Mammoottil Rubber Agencies. He informed Simon Daniel about the proposed transaction. The 2nd accused directed the 1st accused to bring his documents in relation to his land. Unnithan through Jyothi Unnithan brought the title deeds of his property of 7.50 cents of land. The 2nd accused along with Unnithan met the 1st accused in his chamber. The 1st accused informed that the above 7.5 cents of land was not sufficient to grand a loan. The 1st accused and the 2nd accused, while they were in the chamber of the 1st accused and Unnithan was outside the chamber, discussed the matter about Rs.4 lakhs. Unnithan was called into the chamber. The 1st accused enquired whether Simon Daniel had any other property. He had another property having an extent of 5 cents. The title deed of which was entrusted to another person in connection with a loan transaction. The 2nd accused met the person and give cheque for Rs.50,000/- and they gave back the title deed. The property was in the joint name of Unnithan and his wife Meera. Meera along with Unnithan went to the house of Simon Daniel and explained their financial difficulties. Due to sympathy towards Narayanan Unnithan, Simon Daniel agreed for the transaction.

12. Narayanan Unnithan was not able to raise funds for purchasing stamp paper and for executing the sale deed and registering the same. The 1st accused and the 2nd accused telephoned one Pasha and Pasha arranged the amount for purchasing stamp paper and amount for registration. Meanwhile the 2nd accused requested Narayanan Unnithan to pay a sum of Rs. 10,000/- to the 1st accused as gratification for finalising the arrangement. Unnithan entrusted Rs.10,000/- to the 2nd accused and the 2nd accused had given Rs. 10,000/- to the 1st accused at his chamber. The deposition of PW17 would show that the 1st accused had received an illegal gratification of Rs.10,000/- and obtained illegal financial advantage by abusing his power as Chief Manager of SBT Pandalam Branch. The sale deed was executed in favour of PW16, Simon Daniel. Subsequently, Simon Daniel executed a power of Attorney in favour of Jyothi Unnithan, PW21, a relative of Narayanan Unnithan. The arrangement made by the 1st accused and the 2nd accused was to the effect that Narayanan Unnithan should execute a sale deed of his property and Meera in favour of Simon Daniel and Simon Daniel would execute a power of attorney to one of the person pointed out by Unnithan. So in furtherance of the above arrangements Simon Daniel executed a power of attorney in favour of Jyothi Unnithan and Simon Daniel forwarded an application for housing loan to the 1st accused. The 1st accused and the 2nd accused granted a housing loan in the name of PW16 Simon Daniel and transferred the sale proceeds in the joint account of PW17 Unnithan and PW20 his wife Meera. PW15 the wife of PW16 also deposed that Narayanan Unnithan and Meera Unnithan met them and requested to help them. The 1st accused dishonestly sanctioned the housing loan in the name of Simon Daniel and transferred the proceeds in the joint account of PW17 and PW20 as per Ext.P83(a). The 1st accused kept the cheque book of the newly opened account of PW17 and PW20 with him and obtained the signature of PW20 in three cheque leaves through PW21 Jyothi Unnithan. PW21 deposed that he took the three cheques given by the 1st accused to Meera and got her signature on the cheque and entrusted it to the 1st accused. As per the request of the 1st accused, Narayanan Unnithan also put his signature on the above three cheque leaves. The above cheque leaves were marked as Exts.P37, 38 and 39. PW17 deposed that the amounts covered by the cheques were not given to him or PW20. The amount mentioned in the cheques were utilised by the 1st accused and the 2nd accused on the basis of Exts.P40, 41 and 42 transfer credit vouchers. These transfer credit vouchers were executed without the knowledge and consent of Unnithan. Ext.P38 cheque was for Rs.2,25,000/-. The above amount was appropriated for closing the overdraft of M.G.Baby under Ext.P41 credit slip. Unnithan and M.G.Baby had no direct contact between themselves. The amount under Ext.P39 cheque was for Rs.84,200/- which was utilised for closing the overdraft account of Varghese Daniel under Ext.P42 credit slip. Ext.P37 cheque for Rs.90,000 was utilised to make credit slip to CC account No.201 in the name of the 2nd accused and the credit was made under Ext.P40 credit voucher. These three credit vouchers were prepared by the 2nd accused. Ext.P26 is the account opening form of account number 12826 in the name of Narayanan Unnithan and Meera Unnithan.

13. PW13 Mary George (Santhamma) and PW27 Prema Pappachan testified that the 2nd accused Moncy Cheriyan approached them offering to sell the property with a partly constructed housing building of Cheriyan Varghese for Rs.12 lakhs. Since they had no sufficient money to purchase the property, the 2nd accused offered to provide a housing loan for them from the bank through the 1st accused. Ext.P59 is the document relating to the said loan. The 1st accused forwarded the application for the housing loan to the Zonal officer suppressing the fact that the very same property was subjected to mortgage in the bank and another amount of Rs.5 lakhs had already been sanctioned as housing loan in the name of Cheriyan Varghese and that was outstanding. The 1st accused prepared the loan application in the name of the husband of Prema Pappachan and Mary George without informing them. The 1st accused directed Prema Pappachan and Mary George to get the power of attorney in the name of Varghese Pappachan and George Scaria in order to get them as guarantors. There was no margin money available for them. The 1st accused sanctioned an OD in the name of Santhamma as OD No.9/98. Ext.P60 is the statement of account of the above said loan. An amount of Rs.2 lakhs was debited as clean overdraft as per Ext.P61 and the same was credited in the SB account No.12793 under Ext.P63 voucher. Ext.P95 account opening form was got signed from her by the 1st accused by misrepresentation. A cheque book was issued in her name by the 1st accused. The 1st accused filled up the said cheque for Rs.2 lakhs and utilised the proceeds of the same cheque. Ext.P63 term deposit receipt was taken for Rs.2 lakhs. The term deposit amounting to Rs.2,09,086/- was transferred into overdraft account in the name of Santhamma by Ext.P65. The Zonal office rejected the above housing loan application.

14. In paragraph 36 of the judgment of the learned Special Judge, the learned Special Judge found that while granting loan of Rs.10 lakhs to the 2nd accused after forwarding the loan application filed by him to the Zonal office and before sanction of the same from the Zonal office, the 1st accused abused his position and violated the condition of sanction of C.C.No.201. The learned Special Judge also observed that the 1st accused should have obtained four items of properties as collateral security and instead he had secured only two items of properties. Further, among the two items of properties offered as collateral security, he had released one of the properties without getting any sanction from the Zonal office. The learned Special Judge also found that the 1st accused and the 2nd accused, in furtherance of their criminal conspiracy, granted sufficient overdrafts to persons not formally known to the Bank and appropriated the overdraft amount towards the loan of the 2nd accused and thereby the 2nd accused had obtained illegal pecuniary advantage.

15. The evidence of PW17 Narayanan Unnithan and PW20 Meera Unnithan would show that they were directed to sell their property in favour of one Simon Daniel and they were informed further that Narayanan Unnithan and Simon Daniel would execute Power of Attorney in favour of one of a trustworthy person of Unnithan. While so, the 1st accused granted housing loan to the tune of Rs.4 lakhs in the name of Simon Daniel, but the amount was not deposited either in the account of Simon Daniel or to the seller’s property viz. Narayanan Unnithan and Meera Unnithan. Instead, the 1st accused and the 2nd accused created Exts.P40 to 42 credit vouchers and credited the amount to the accounts as directed by the 2nd accused and in turn, the 2nd accused thereby released the amount and obtained pecuniary advantage.

16. Ext.P107 is the sanction order issued by the appointing authority of the 1st accused, the Chief Manager, State Bank of Travancore, who was examined as PW23. On a reading of the evidence of PW23 and Ext.P107 sanction, the same was issued by the authority on applying its mind, after verification of the prosecution records and therefore the prosecution succeeded in proving the sanction, for which no dispute is raised by the appellants. It is decipherable from the evidence that overdraft facility also granted to Varghese Daniel as detailed in paragraph 20 of the judgment of the Special Court, which reads as under:

                  “20. OD was also granted to Varghese Daniel. Ext.P69 shows that OD was granted on 24.7.1998 in favour of Varghese Daniel. Varghese Daniel was examined as PW24. This loan was granted only for the benefit of A2 in furtherance of the conspiracy with A1. Rs.2 lakhs was withdrawn by PW24 Varghese Daniel. Another OD for Rs.2 lakhs was granted to M.G.Baby. Out of the said 4 lakhs Rs. 3.8 Iakhs was utilised for making payment of CC a/c of A2. On the reverse of Ext.P66 the total of Rs.2 lakhs + 1.8 lakhs is calculated and on the reverse of Ext.P71 on the credit slip would show the utilisation of the above 3.8 lakhs. Out of the said amount of Rs.3.8 lakhsm an amount of Rs.79,474/- was transferred in the OD No.2 in the name of A2 another amount of Rs.64,681/- was transferred under Ext.P74 to CC a/c 201 of A2. Another amount of Rs.2,25,000/-was transferred into CC a/c 201 under Ext.P73 voucher. In order to realise cheque produced in CC No.201. Another amount of Rs.10,815/- and another amount of Rs.30/- by Ext.P72 was transferred to CC a/c of 201. The entire amount of Rs.3.80 lakhs were appropriated for the benefit of A2. The above two ODs were sanctioned by A1 to Varghese Daniel and M.G.Baby only for the benefit of A2 in furtherance of the conspiracy entered into between A1 and A2. “

                  As regards the misappropriation, the 1st accused and the 2nd accused granted a housing loan in the name of PW16 and transferred the sale proceeds in the joint account of PW17 Unnithan and PW20, his wife Meera and thereafter the 1st accused dishonestly sanctioned housing loan in the name of Simon Daniel and transferred the money in the joint account of PW17 and PW20 as per Ext.P83(a). Thereafter, the 1st accused kept the cheque book from the newly opened account in the name of PW17 and PW20, after obtaining signatures and he encashed three cheques Exts.P37, P38 and P39 and not given the amount either to PW17 or PW20. Thereafter, the amounts covered by Exts.P37, P38 and P39 cheques were utilised by the 1st accused and the 2nd accused, on the basis of Exts.P40 to 42 transfer credit vouchers and those vouchers were executed without the knowledge or consent of Unnithan. Ext.P38 is the cheque for Rs.2,25,000/- and the above amount was appropriated for closing the overdraft of M.G.Baby under Ext.P41 credit slip. Further, Unnithan and M.G.Baby had no direct contact between themselves and the amount under Ext.P39 cheque to the tune of Rs.84,200/- was utilised for closing the overdraft account of Varghese Daniel under Ext.P42 credit slip. That apart, Rs.90,000/- encashed through Ext.P37 cheque was utilised to make credit slip to C.C.Account No.201 in the name of the 2nd accused and the credit was made under Ext.P40 credit voucher. The above three credit vouchers were prepared by the 2nd accused, Ext.P26 tendered in evidence is the account opening form pertaining to account No.16826 in the name of Narayanan Unnithan and Meera Unnithan. This evidence is supported by the version of PW6 and PW7. In this case, DW1 was examined from the side of the accused to prove that the statement of PW1 Latha was regarded by PW9, which was marked as Ext.D7. Similarly, Ext.D8 statement of Unnithan was tendered in evidence to prove contradictions between the statements of Unnithan DW1 and his deposition as PW17. In fact, the methodology adopted by the defence to prove contradiction by examining the author of a statement without using the same for contradicting the witness during his examination with the aid of Section 145 of the Indian Evidence Act, 1872, itself is a wrong procedure and therefore the Special Court found that even though Exts.D20 to 24 circulars were given emphasis by the accused to prove that the Chief Manager was competent to grant loan upto Rs.10 lakhs, the case of the prosecution is that the Chief Manager had no power to grant loan upto Rs.10 lakhs after forwarding the loan application to the Zonal office for sanction, would sustain. Therefore, the learned Special Judge found that documents Exts.D20 to D24 or Exts.D25 to D26 could not prove that the Manager had acted within his powers and he did not abuse his position as public servant. The Special Court also considered the evidence of DW2 to prove that the 2nd accused never requested DW2 to mortgage her property as security for obtaining loan for and on behalf of Pasha. Narayanan Unnithan, DW2 deposed further that she put her signature for a loan of Rs.5 lakhs in order to save the life of Narayanan Unnithan. But, the Bank had issued a notice to her for realisation of Rs.70 lakhs and she was not aware of the fact that she was a guarantor of Pasha for a sum of Rs.70 lakhs.

17. Summing up the discussions, this Court would hold that the prosecution allegation regarding grant of loan and overdraft facility without proper authority and misappropriation of the same are established by the evidence discussed in detail and thereby the learned Special Judge rightly entered into the finding that accused 1 and 2 committed the offences and accordingly they were sentenced. Therefore, the conviction imposed by the Special Court is perfectly in order and the same does not require any interference.

18. However,         in consideration of the arguments advanced by the learned counsel for the 1st accused/appellant and taking note of the minimum sentence provided for the offence, I am inclined to modify the sentence.

                  In the result, this appeal is allowed  in part. Conviction imposed by the Special Judge is upheld. Sentence stands modified as under:

                  (i) The 1st accused/appellant is sentenced to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 13(2) read with Section 13(1)(d) of the PC Act, 1988 and to pay a fine of Rs.1 lakh and in default of payment of fine, the 1st accused/appellant shall undergo default rigorous imprisonment for a period of 6 months.

                  (ii) The 1st accused/appellant is sentenced to undergo rigorous imprisonment for a period of 6 months for the offence punishable under Section 120B of the IPC and to pay a fine of Rs.10,000/- and in default of payment of fine, the 1st accused/appellant shall undergo default rigorous imprisonment for a period of three weeks.

                  (iii) The 1st accused/appellant is sentenced to undergo rigorous imprisonment for a period of 6 months for the offence punishable under Section 420 read with Section 120B of the IPC and to pay a fine of Rs.25,000/- and in default of payment of fine, the 1st accused/appellant shall undergo default rigorous imprisonment for a period of 3 weeks.

19. The order suspending and granting bail to the 1st accused/appellant is cancelled with direction to the 1st accused/appellant to surrender before the Special Court to modify the sentence without fail.

20. The registry is directed to forward a copy of this judgment to the Special Court for information and execution of the modified sentence.