Evidence from Mother Case Admissible in Split-Up Trial Against Absconding Accused: Madras High Court - 2025-04-09

Madras High Court Upholds Conviction in Bank Fraud Case, Allows Evidence from 'Mother Case' Against Absconding Accused

Madurai, [Pronouncement Date from Judgment]: The Madurai Bench of the Madras High Court has partly allowed a criminal appeal filed by A. Abdul Aziz, upholding his conviction in a long-pending bank fraud case while reducing his sentence. The case, stemming from a 1994 CBI investigation, involved the fraudulent encashment of forged Demand Drafts (DDs) causing significant loss to the Bank of India.

Case Background:

Abdul Aziz was the 4th accused in the original case (C.C.No.4 of 1998) registered by the CBI, which involved multiple accused and allegations of conspiracy, forgery, and cheating. Aziz had absconded during the initial investigation, leading to a split-up case (C.C.No.8 of 2010) against him when he was later apprehended. The trial court convicted Aziz based on evidence presented, sentencing him to 7 years rigorous imprisonment under various sections of the Indian Penal Code (IPC), including 120-B (conspiracy), 468 (forgery for purpose of cheating), 471 (using forged document as genuine), and 420 (cheating).

Appellant's Arguments:

Represented by Senior Counsel Mr.T.Lajapathi Roy, Aziz challenged the conviction primarily on the grounds that key prosecution witnesses – the approvers in the original case – were not examined in his trial. One approver had passed away, and the other was untraceable. The defense argued that relying on the testimony of the approvers' sons, and without examining the approvers themselves, was insufficient and unreliable for conviction. Furthermore, they pointed to a related case (C.C.No.9 of 2010) where the trial court acquitted the accused based on similar evidence, arguing for consistent application of judicial standards.

CBI's Counter Arguments and Court's Stance:

Special Public Prosecutor Mr.N.Mohideen Basha, representing the CBI, contended that there was ample evidence, even without the direct testimony of the approvers in this specific trial, to prove Aziz's guilt. The prosecution highlighted the testimonies of the approvers' sons (PW1 to PW4) and other witnesses who detailed Aziz's central role in the conspiracy. Crucially, the CBI filed an application (Crl.M.P.No.7253 of 2024) under Section 391 of the Criminal Procedure Code (CrPC), seeking to admit the depositions of the approvers recorded in the 'mother case' (C.C.No.4 of 1998).

Justice K.K.Ramakrishnan, presiding over the case, allowed the CBI's application, citing Section 299 of CrPC, which permits the use of evidence recorded in the absence of an absconding accused under certain circumstances. The court emphasized that the split-up case was a continuation of the original proceedings and that the unavailability of the approvers (due to death and being untraceable) justified admitting their prior depositions to ensure justice is served.

The judgment extensively quoted legal precedents and principles, including Sections 273, 299, and 317 of CrPC, and Section 33 of the Indian Evidence Act. It referenced Supreme Court judgments such as State of Gujarat v. Mohanlal Jitamalji Porwal , CBI v. Abu Salem Ansari , and Sukhpal Singh Vs NCT of Delhi to underscore the permissibility and necessity of admitting prior evidence in cases involving absconding accused and unavailable witnesses, especially in economic offenses.

Key Excerpt from Judgment:

> "In view of the death of one of the approvers and non-availability of the other approver, this Court inclines to apply the principle that the law does not compel a man to do what he cannot possibly perform and law does not expect a party to do the impossible and no one is bound to do impossibility and allowed the application filed by the prosecution to rely the evidence of the approver recorded, on account of the his intentional abcondence."

Final Verdict and Implications:

The High Court upheld the conviction, affirming the trial court's findings that Aziz was a key conspirator in the bank fraud. However, considering Aziz's age and health condition, the court reduced the rigorous imprisonment sentence from 7 years to 5 years for each offense, while maintaining the fine of Rs. 25,000 for each offense, totaling Rs. 1,50,000. All sentences will run concurrently.

This judgment reinforces the legal position that evidence recorded in earlier proceedings, even in the absence of an accused who was then absconding, can be admissible in a subsequent split-up trial. It highlights the application of Sections 299 and 391 CrPC in ensuring that trials are not perpetually stalled due to the abscondance of accused, and that justice can still be effectively administered, particularly in cases of serious economic offenses where witnesses may become unavailable over time. The ruling serves as a reminder that absconding from justice will not necessarily shield the accused from facing the consequences of their actions based on previously recorded evidence.