Jharkhand High Court
James Gegory Indwar vs State Of Jharkhand on 12 September, 2012
Author: Jaya Roy
Bench: Jaya Roy
Criminal Appeal (S.J.) No. 55 of 2006
-------------
Against the judgment of conviction and order of sentence
dated 19.12.2005 passed by the Special Judge, C.B.I., Ranchi in
R.C. case No. 32 of 1984.
-------------
James Gregory Indwar ..... ..... Appellant
--Versus--
The State of Jharkhand through C.B.I. ..... ..... Respondent
For the Appellant: M/s. Afaque Ahmad & Altaf Hussain, Advocates
For the Respondent: Mr. Md. Mokhtar Khan, Advocate.
PRESENT
HON'BLE MRS. JUSTICE JAYA ROY
-------------
JUDGMENT
C.A.V. ON 11.04.2011 PROUNCED ON 12/ 09/ 2012
Jaya Roy, J. The appellant has filed this appeal for setting aside the Judgment
of conviction and the order of sentence dated 19.12.2005 passed by the
Special Judge, C.B.I., Ranchi in R.C. case No. 32 of 1984 whereby the
appellant has been convicted to undergo Rigorous Imprisonment for
Two and half years under Section 420 I.P.C. and he is further sentenced
to undergo Rigorous Imprisonment for two years under Sections 468/
471 I.P.C. and Rigorous imprisonment for one year under Section 471
I.P.C. and further sentenced to undergo Rigorous imprisonment for two
and half years under Section 5(2) read with 5(1)(d) corresponding to
Under Section 13(2) read with 13(1) (d) of P.C. Act. and also sentenced
to pay a fine of Rs.3,500/- in each count under Section 420 I.P.C. and
under Section 5(2) read with 5(1)(d) corresponding to under Section
13(2) read with 13(1) (d) of P.C. Act. In case of default in payment of
fine, the convict will further go to S.I. for 15 days each. All the sentences
will run concurrently.
2. Both the parties have filed an elaborate written arguments in this
appeal which are on the record.
3. The prosecution case in brief is that namely J.G. Indwar, Routine
Officer of Union Bank of India, Ranchi Branch in conspiracy with other
persons dishonestly defrauded the Bank to the tune of Rs.2.18 lakhs on
the strength of fake and forged cheques purported to have been issued by
the account holder during the period May and June 1982. It is further
2 Criminal Appeal (S.J.) No. 55 of 2006
alleged that in furtherance of the said criminal conspiracy, J.G. Indwar
and his associate managed to credit to BPAR A/c Rs.79000/- on 28.5.82
to the debit of Dormant SB A/c No.2690 of Sri Jagdish Lal Mathur by
means of stolen cheque Nos. 060121 and 060122 for Rs.41,500/-and
37,500/- respectively and on 29.5.82 BPAR A/c was reversed by
attaching credit of Rs.78990/- in bills payable pay order issued account
and residual of Rs.10/- was credited to Income A/c commission for issue
of pay order. Pay order No.5915 for Rs.41,295/- and pay order no. 5916
for Rs.37,295/- were issued. The pay orders were fraudulently credited to
the false SB A/c No. 6570 in the name of Deepak Anand and SB A/c No.
4636 in the name of Dhirendra Pradhan and Smt. Malti Devi and the
same were withdrawn. On 9.6.82 an amount of Rs.57000/- was
withdrawn in cash through cheque no. 085161 to the debit of Dormant
SB A/c no. 3313 of Ashok Kr. Choudhary against insufficient balance. A
demand draft No. 139/9/663 for Rs.81910 was fraudulently raised and
residual Rs.90/- was credited to Income Account to the debit of Dormant
A/c no. 3244 of Sh Anand Kr. Sinha against insufficient balance. The
demand draft was in favour of Shri Dhirendra Pradhan and the same was
payable at Nagpur main Branch. On the basis of source information a
case was instituted by Shri. K.N. Sinha Inspector of Police, CBI, SPE,
Patna against the accused appellant on 31.10.1984 and investigation was
taken up. After due investigation, charge sheet was submitted against this
accused appellant. Accordingly, cognizance under Sections 120B,
420,468,477 I.P.C and 5(1)(d) read with 5(2) P.C. Act
1947corresponding to 13(1)(d) read with 13(2) P.C. Act 1988 was taken
on 29.8.86 and summon was issued against the accused appellant. This
case has been transferred from the court of Spl. Judge, Patna to the Court
of Special Judge, CBI, Ranchi vide notification no. 91A dated 7.5.02 of
the Hon'ble High Court, Jharkhand
4. The prosecution has examined altogether sixteen witnesses in this
case. P.W.1 Kamal Oraon, P.W.2 B. Roy, P.W.3 K.N. Sinha, P.W.4 Md.
Naushad, P.W.5 S.N. Kumar, P.W.6 Amar Nath, P.W.7 Sarwar Javed,
P.W.8 Amit Kumar Ray, P.W.9 Indradeo Narayan Tiwary, P.W.10 R.
Ramesh Prabhu, P.W.11 Jagarnath Paul. P.W.12 Ram Sumer Singh,
P.W.13 Satish Chandra Sinha, P.W.14 V.G.S. Bhatnagar, P.W.15 Jyoti
3 Criminal Appeal (S.J.) No. 55 of 2006
Kumar and P.W.16 D. Mazumdar.
5. The prosecution has produced several documents which are
marked as Exhibits i.e. Ext-1 F.I.R, Ext-2 to 2/B three ledger sheet of
account nos. 2690, 6436/82 and 6370/80, Ext-3 two sheet of cheque book
delivery registers, Ext- 4 to 4/E writing and signature of accused on
withdrawal slip, Ext-5 to 5/2 signature and writing on three cheque, Ext-6
& 6/A writing and signature of accused on specimen signature card,
Ext-7 to 7/B writing and signature of accused on deposited voucher,
Ext-8 to 8/A writing and signature on two portion A/c debit voucher,
Ext-9 and 9/A writing and signature of accused on account opening form,
Ext-10 signature of wife of accused on back portion of cheque, Ext-11
and 11/A writing and signature of accused on pay order, Ext-12 writing
and signature on two portion of debit/voucher dated 9.6.82 of accused,
Ext-13 writing and signature of accused on two portion of draft making
voucher dated 10.7.82, Ext-14 cheque promissory schedule, Ext-15
writing and signature on deposit slip, Ext-16 to 16/33 specimen writing
and signature of accused, Ext -17 signature of Sarwar Javed an account
opening form Ext-9,Ext-17/A signature of Sri P.R. Prabhu on Ext-9/A,
Ext-18 ledger sheet of A/c no. 7737, Ext-19 statement in 6 sheet, Ext-20
signature of Amit Kumar Rai on seizure list, Ext-21 statement of current
account of Gwalior Ray on bond issue and its enclosure, Ext-22 and 22/1,
saving pass books of J.G. Indiwar and Mrs. Rose Indiwar, Ext-23 account
opening signature card of J.G. Indwar and Mrs. Rose Indwar, Ext-24,
24/1 & 24/2 Credit slip in the name of Mrs. Rose Indiwar dated 17.10.83,
18.11.83& 13.3.84, Ext-25 statement of saving bank account of Mrs. Rose Indiwar of Allahabad Bank, Ext-25/1 statement of S.B. Account 'C' accused J.G. Indwiar of Allahabad Bank, Ext-26 to 26/2 seizure memo dated 11.3.85, Ext-27 account opening form in the name of Suresh Prasad, Ext-28 and 28/1 internal advices of Union Bank of India, Ext-29 application for officer appointment of J.G. Indiwar, Ext-30 counterfoil of draft prepared in the name of Deepak Anand Sl.No. 113460, Ext-31 counterfoil of demand draft of Union Bank of India Sl. No. 113401-113500, Ext-31/1 counterfoil of demand draft of UBI, Ranchi Sl. No. 094601-094700, Ext-30/1 counterfoil no. 094663 demand draft of UBI, Ranchi Ext-32 letter no. 8343/31/32/84- Patna dated 4 Criminal Appeal (S.J.) No. 55 of 2006 31.10.85 to GEQD, Ext-33 specimen signature and writing of Rose Indiwar, Ext-34 opinion of GEQD, Ext-35 forwarding letter of Santosh Singh,. Govt, Examiner, Ext-36 reason for opinion no. DXC 218/85 dated 21.11.85, Ext-37 wallet including negatives, Ext-38 enlarge 27 sheets of photo of specimen writing, Ext-39 forwarding letter sent to GEQD, Ext-40 to 40/2 three interior report dated 8.5.84, 31.5.84, and 1.8.84 and two torn piece of cheque pin up material ext 1 and 1/1 have been produced on behalf of the prosecution, Initial over ledger sheet Ext2 has been marked Ext A on behalf of the defence.
6. The defence has not examined any witness on its behalf. The defence of the accused appellant is total denial of the charges and is of false implication. The accused appellant has submitted that he was Routine Officer having no portfolio and had no opportunity to withdraw any amount. It is submitted that when the accused appellant competed in UPSC examination and after tendering his resignation, he joined in Defence service, then he was implicated in this case only due to grudge and enmity.
7. The learned counsel appearing for the appellant has submitted that no source has been disclosed in the F.I.R. Thus, the F.I.R. lodged without any source of information cannot be treated as F.I.R. in the eye of law. Further, there is an inordinate delay in lodging the F.I.R. of about 2 years and 4 months without any explanation given for the cause of delay. It is further contended that no account holder has been examined neither any complaint was lodged by any of the account holders nor they are the witnesses. As no loss caused to the account holders or to the Bank, it cannot be said any fraud has been done by the accused appellant. It is also stated that during the cross examination of the I.O of the C.B.I. Jyoti Kumar as to how he arrived at conclusion that fraud had occurred in three accounts, he simply stated that he has relied on the enquiry report of Mr. D. Mazumdar and even Mr. D. Mazumdar has also not interrogated the Dormant Account holders. It is also contended that there is no wishper about any audit report which shows no audit was done in the Bank for this matter. Usually in the Bank, audit is made annually in every financial year and if Bank suffered any loss it would have come in Annual Audit Report. He has further pointed out that in 5 Criminal Appeal (S.J.) No. 55 of 2006 this regard P.W.10, the Accountant at para-5 of his evidence in cross examination, has stated that he came to know from the Bank that the forgery have been made. He has further stated that he has no knowledge about audit report. It is also submitted by the counsel appearing for the appellant that Sri D. Mazumdar the Vigilance officer of the Bank was not officially authorized as Investigating Officer in this case. Furthermore, the informant has not been examined by the prosecution.
8. The learned counsel for the appellant has cited a decision of the Hon'ble Apex Court reported in (1997) 1 S.C.C. 283 Binay Kumar Singh and another -Vrs- State of Bihar in which it has held:-
"A. Criminal Procedure Code, 1973-S.154-FIR Requirements of Cryptic information from somebody who does not disclose any authentic knowledge about commission of cognizable offence would not be sufficient to register an FIR.
9. The learned counsel for the appellant has further submitted that there are major contradictions in the evidence of the witnesses examined by the prosecution. P.W.5 though he has proved the signatures of the accused appellant in withdrawal slip and three cheques but in his cross examination has stated that none of the signatures was taken in his presence. No paper written by the accused appellant is with him. As neither signatures were taken in his presence nor he posses any paper written by the accused appellant, thus, his claim that he has proved the signatures of the accused in withdrawal slip and cheques cannot be accepted.
10. The learned counsel has further contended that P.W.6 Amarnath who has claimed that writing and signature of the accused appellant were taken in his presence and has proved the ledger but in cross examination at para-2 he has stated that it is not that signature and specimen which were taken in his presence.
11. The counsel for the appellant has submitted that D. Mazumdar, Vigilance officer of the Bank was not officially authorized/ appointed as Investigating officer and no document has been produced by the prosecution in this regard. It is further stated that it has come that many document have been destroyed and as Mr. Mazumdar was Investigating the case, the onus of the destruction of the documents should fall on him and 6 Criminal Appeal (S.J.) No. 55 of 2006 he should be made responsible for this.
12. The learned counsel for the appellant has further pointed out that no sanction was obtained in this case therefore, absence of sanction order the entire trial should be vitiated.
13 The learned counsel for the appellant has submitted that the appellant has been falsely implicated in this case only due to the Branch Manager who was jealous and biased with the appellant. Furthermore, as the appellant has competed in UPSC examination and tendered his resignation in April '84, the F.I.R. was lodged against him in October 1984 for only due to enmity. It is also contended that in absence of any loss caused to the Bank, it cannot to be said that the accused appellant committed any fraud to the Bank and therefore, he is entitled for acquittal.
14. Mr. Khan appearing for the C.B.I has submitted that P.W.3 K.N. Sinha is the Inspector of C.B.I. has proved the F.I.R. as Ext-1 and he has drawn the FIR and he was further stated that he lodged the F.I.R. on source information and P.W.15 Jyoti Kumar Inspector of C.B.I. had taken up the investigation.
15. Mr. Khan has further contended that P.W.5 S.S. Kumar was Routine Officer of Union Bank of India, Main Branch Ranchi during 21.4.1981 to 19.4.1984. He has stated that J.G. Indwar (accused) was also posted as Routine Officer. He has proved the ledger sheets of account No. 6436/82 and 6570/82 as Ext-2/A and 2/B. He has proved the cheque book delivery register as Ext-3. He has further stated that he had an occasion to work with J.G. Indwar and he knows his writing and signature. He has further proved the hand writing and signature of J.G. Indwar on three withdrawal slips which have been marked as Ext.4,4/A and 4/B. He has further proved the handwriting and signature of J.G. Indwar on three cheques as Ext-5,5/A,5/B. He has proved the writing of J.G. Indwar on three deposit slips as Ext-7,7/A, 7/B. He has proved the writing of Indwar on two account debit voucher as Ext-8 and 8/A. He has proved the signatures and handwriting of accused appellant on two account opening form marked as Ext-9 and 9/A. He has further proved the signature of Rose Indwar, wife of J.G. Indwar, over the back side of the cheque dated 17.11.1983 which is marked as Ext. 10.
7 Criminal Appeal (S.J.) No. 55 of 2006
16. Mr. Khan has further contended that P.W.7 Sarver Javed has stated that he was working as Officer in the Union Bank of India, Main Branch from1981 to 1994. He has proved the ledger with respect to account No. 7737 and 7738 which is marked as Ext-18. He has further proved the statement in six sheets which in his handwriting and signature and has been marked as Ext.19. He has further contended that P.W.8, Amit Kumar Roy, on 18.05.1985 as he was incharge Branch office of Bank of India Club side Branch, on that day he had transferred all the papers mentioned in seizure list and Seizure list was prepared and he put his signature which was marked as Ext-20.
17. Mr. Khan has further contended that P.W.10, R. Ramesh Prabhu (Accountant in the Union Bank of India, Main Branch, Ranchi from July 1980 to September 1984) has identify the saving bank account opening form was opened in the name of Deepak Anand in Union Bank of India, Dharmatala Branch, Kolkata bearing No. 7738. He further stated that account opening form bears forged signature of this witness as introducer which is marked as Ext-9/A.
18. Mr. Khan has further contended that P.W.11 Jagarnath Pal (Assistant Manager UCO Bank of Ranchi Branch from August/ September, 1984 to April/May 1987) he has proved the statement of account of account no. 1954 in the name of Rayand Gwalier Banor in United Commercial Bank Ranchi, which is marked as Ext-21. P.W.12 Ram Sumer Singh was Branch Manager, Allahabad Bank, Ranchi in the year 1985. He has proved saving bank pass book of J.G. Indwar in Allahabad Bank bearing account no. 9171 marked as Ext-22 and the pass book on the name of Rose Indwar wife of J.G. Indwar bearing account no. 9083 marked as Ext-22/1.
19. Mr. Khan has further contended that P.W.13 Satish Chandra Sinha (DGM Union Bank of India New Delhi) he has stated in the year 1983 that he was posted at the Union Bank of India, Main Branch, Ranchi, where J.G. Indwar was also posted and so he knows handwriting and signature of the J.G. Indwar. He has corroborated that from the perusal of Ext-2 (ledger sheet of account no. 2690), it appears that J.G. Indwar withdrew Rs.79,000/- from the Dormant Account no. 2690 through two withdrawal forms of Rs.41,500 and Rs.37,500 which was in the name of 8 Criminal Appeal (S.J.) No. 55 of 2006 Jagdish lal Mathur. From further perusal of Ext-2/A statement of account of ledger, he corroborates that after deducting Rs.5/- from bank cheque Rs.41,495/- was credited and later on J.G. Indwar transferred Rs.5,000/-, Rs.950/- Rs.30,000/- and then Rs.5,045/- by his signature in the account of Dhirender Pradhan after opening an account in the name of Dhirendra Pradhan. This witness (PW.13) has proved the prosecution case and explained every thing in detail as to how the accused appellant played and committed the fraud.
20. Mr. Khan lastly has submitted that admittedly the accused appellant has tendered his resignation on 3.4.1984 and the F.I.R. has been lodged on 31.10.1984 therefore, admittedly, the appellant was not public servant at the time of filing the F.I.R. and as such no sanction is required under Section 197 Cr.P.C. and the P.C. Act as the present case instituted for the offence under the aforesaid sections of the Indian Penal Code and the P.C. Act. It is also submitted that power confirmed under the Act as well as consent given by the State Government and office memorandum has also been issued by CBI policy Division, North Block, New Delhi dated 12.01.2010 in which it is made mandatory to register all bank fraud cases. In this regard Mr. Khan has cited two decision i.e.:-
(i) (1999) 5 S.C.C. - 690 State of Kerala - Vrs.V. Padmanabhan Nair.
(ii) (2006) 1 S.C.C.- 294 Romesh Lal Jain- Vrs. Naginder Singh Rana and others.
21. From the record, I find admittedly the accused appellant has tendered his resignation much earlier of the filing of the F.I.R. of this case and thus, he was not at all a public servant at the time of lodging of the case against him. The case cited by Mr. Khan, I find the Hon'ble Apex Court has held in the case of State of Kerala -Vrs- V. Padmanabhan Nair reported in (1999) 5 S.C.C. - 690:-
"6. The correct legal position, therefore, is that an accused facing prosecution for offences under the P.C. Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when he court took cognizance of the said offences. So the 9 Criminal Appeal (S.J.) No. 55 of 2006 High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the P.C.Act.
7. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of I.P.C. sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This court has stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay and also Amrik Singh v. State of Pepsu that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad as follows: (SCC p.115, para 66) "As far as the offence of Criminal conspiracy punishable under Section 120-B, read with Section 409,Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
Therefore, in the fact and circumstances of the present case, Mr. Kahn has rightly submitted that no sanction is required in the present case to prosecute the accused appellant.
22. Perused the evidence of the witnesses, and materials on records and as well as the impugned Judgment and scrutinizing the same carefully I find from the record the Exhibit-40 to 40/2 clearly shows that on investigation made by D. Mazumdar Superintendent, Zonal Vigilance Cell, Calcutta, fraud of Ranchi Main Branch, Bihar had come to the light during Ist week of April 1984. Thereafter, after completing the enquiry from the Bank concerned, aforesaid three reports (Ext-40,4/1 and 4/2) were submitted and only thereafter F.I.R. was lodged by the C.B.I. official Mr. K.N. Sinha on 31.10.1984. In this circumstances it cannot be said that the F.I.R. has been lodged after long delay without any cogent reason. The point raised regarding the source of information, I find from the record P.W.3 K.N. Sinha the Inspector of the C.B.I. has 10 Criminal Appeal (S.J.) No. 55 of 2006 lodged the F.I.R. after submission of three detail enquiry reports by D. Mazumdar i.e. Ext-40 to 40/2 and thereafter Jyoti Kumar, Inspector C.B.I. (P.W.15) had taken up the investigation. All the three witnesses P.W.3 K.N. Sinha, P.W.15 Jyoti Kumar and P.W. 16 D. Mazumdar have proved the prosecution case and allegations made against the accused appellant. The informant K.N. Sinha has been examined by the prosecution as P.W.3 but the defence has denied to cross examine him, therefore, the plea taken by the appellant that the informant has not been examined by the prosecution is not correct.
23. P.W.16 Mr. D. Mazumdar (Deputy General Manager, Union Bank of India) has stated that during the year 1984 he was posted as Superintendent, Zonal Vigilance Kolkata having jurisdiction of entire area of the State of Bihar. He has further stated that he investigated a fraud of Ranchi Main Branch, Union Bank of India in the capacity of Superintendent in which he found that there was a fraud of Rs.2.18 lakhs and during investigation, he found the incriminating and conclusive evidence against J.G. Indwar and also found J.G. Indwar had misused his official position and committed a fraud of Rs. 2.18 lakhs, fraudulently debiting from three dormant S.B. Accounts by transferring these amount in BPAR (Bills Proceeds Awaiting Remittance) in the interim account were found wrongly debited from the said dormant S.B. Account. Thereafter, the said amount were credited and transferred to mainly two accounts whose identity is questionable. He has further stated that due to this, bank suffered heavy loss. This witness stands firm even in his cross examination. Thus, he proved and supported the prosecution case.
24. From the record, I find that P.W.5 S.S. Kumar was Routine Officer of Union Bank of India,Main Branch Ranchi during 21.04.1981 to 19.04.1984. he has stated that J.G. Indwar was also posted as Routine Officer. He has proved the ledger sheets of account No. 6436/82 and 6470/82 as Ext-2/A and 2/B. He has proved the cheque book delivery register as Ext-3. He has further stated that he had an occasion to work with J.G. Indwar and he knows his writing and signature. He has further proved the hand writing and signatures of J.G. Indwar on three withdrawal slips which have been marked as Ext. 4,4/A and 4/B. He 11 Criminal Appeal (S.J.) No. 55 of 2006 has further proved the handwriting and signatures of J.G. Indwar on three cheques as Ext-5,5/A, 5/B. He has proved the writing of J.G. Indwar on three deposit slips as Ext-7,7/A,7/B he proved the writing of Indwar on two account debit voucher as Ext-8 and 8/A. He has proved the signatures and handwriting of accused on two account opening form marked as Ext-9 and 9/A. He has further proved the signature of Rose Indwar, wife of J.G. Indwar, over the back side of the cheque dated 17.11.1983 marked as Ext-10. Therefore, even if P.W.5 has not having any paper written by the accused appellant with him or the accused appellant has not put is signature in his presence, he can very well identify and prove the signature of the accused appellant as both worked together as Routine Clerk for a long time.
25. The four witnesses who are postal peon i.e. P.W.1 Kamal Oraon, P.W.2 Bhuneshwar Roy, P.W.4 Md. Naushant and P.W.9 Indradeo Narayan Tiwary have also stated that they did not find any person of the name of Deepak Anand, Dhirendra Pradhan and Malti Devi in their area neither any postal communication had received to them for delivery, therefore, it is very clear that those persons were not at all genuine persons residing at the given address in the Bank Account.
26. In the statement made under 313 Cr.P.C. the accused appellant has stated about all those things which have been argued by his counsel in this appeal. But the oral and documentary evidences produced by the prosecution are totally contradictory to his defence taken by him under Section 313 Cr.P.C.
27. Thus, the witnesses have proved the prosecution case and even in their cross examination they stand firmly. The documents which are made exhibits in this case and proved by the witnesses also speak about the fraud committed by the accused appellant and also shows that the accused committed a criminal misconduct to obtain undue pecuniary benefit for himself by corrupt and illegal means abusing his official position.
28. After going through the entire evidence oral and documentary and scrutinized the same as stated above and considering the elaborated judgment given by the trial court, I find that the prosecution has proved 12 Criminal Appeal (S.J.) No. 55 of 2006 the aforesaid charges against the accused appellant beyond all reasonable doubt. I do not find any merit in this appeal. Accordingly, the appeal is dismissed.
(Jaya Roy, J) Jharkhand High Court, Ranchi Dated, 12th September, 2012 Anit/N.A.F.R.