Allahabad High Court
Jagbeer Singh vs State Of U.P. Through C.B.I. on 13 February, 2019
Author: Rekha Dikshit
Bench: Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- CRIMINAL APPEAL No. - 1509 of 2011 Appellant :- Jagbeer Singh Respondent :- State Of U.P. Through C.B.I. Counsel for Appellant :- Shreesh Chandra Counsel for Respondent :- Bireshwar Nath AND Case :- CRIMINAL APPEAL No. - 1510 of 2011 Appellant :- Ashok Kumar Singh Respondent :- State Of U.P. Through C.B.I. Counsel for Appellant :- Shreesh Chandra,Dineysh Agrawal,V.K. Shahi Counsel for Respondent :- Bireshwar Nath AND Case :- CRIMINAL APPEAL No. - 1511 of 2011 Appellant :- Mahendra Pal Singh Respondent :- State Of U.P. Counsel for Appellant :- Anurag Kr. Singh Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Rekha Dikshit,J.
1. Since all the appeals have been filed against a common judgment, the same are being decided by a common judgment.
2. These appeals assail the correctness of the judgment and order dated 30.08.2011 passed by learned Special Judge, C.B.I., Court No.2, Lucknow in Criminal Case No.2 of 1990 (State v. M.P. Singh), arising out of R.C.No.6A/1987, under Sections 120B, 420, 467, 471 I.P.C. & Section 5(2) read Section 5(1)(D) of Prevention of Corruption Act, 1947, Police Station C.B.I./A.C.B., Lucknow, whereby the Special Judge has convicted and sentenced the accused-appellants as under:
(i) The appellant namely Mahendra Pal Singh (hereinafter referred to ''M.P. Singh') has been convicted under Section 13(2) read with Section 13(1)(D) of Prevention of Corruption Act, 19881 & Sections 120-B read with Section 420, 468, 471 I.P.C and sentenced him under Section 13(2) read with Section 13(1)(D) of the Act for three years rigorous imprisonment with fine of Rs.20,000/-, in default of payment of fine, he shall undergo six months additional imprisonment, under Section 120-B read with Section 420 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine, he shall undergo two months additional imprisonment, under Section 468 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine, he shall undergo two months additional imprisonment and under Section 471 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine, he shall undergo two months additional imprisonment. All the sentences were directed to run concurrently.
(ii) The appellant namely Jagbeer Singh has been convicted under Section 13(2) read with Section 13(1)(D) of the Act & Sections 120-B read with Section 420, 419, 468, 471 I.P.C and sentenced him under Section 13(2) read with Section 13(1)(D) of the Act for three years imprisonment with fine of Rs.2,000/-, in default of payment of fine, he shall undergo ten days additional imprisonment, under Section 120-B read with Section 420 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine, he shall undergo two months additional imprisonment, under Section 419 I.P.C. for two years rigorous imprisonment, under Section 468 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine, he shall undergo two months additional imprisonment and under Section 471 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine, he shall undergo two months additional imprisonment. All the sentences were directed to run concurrently.
(iii) The appellant namely Ashok Kumar Singh has been convicted under Sections 120-B read with Section 420, 468, 471 I.P.C and sentenced him under Section 120-B read with Section 420 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine, he shall undergo two months additional imprisonment, under Section 468 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine, he shall undergo two months additional imprisonment and under Section 471 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine, he shall undergo two months additional imprisonment. All the sentences were directed to run concurrently.
3. As per report dated 01.01.2018 of the Chief Judicial Magistrate, Etawah, the appellant Jagbeer Singh died on 02.03.2015, as such, the Criminal Appeal No.1509 of 2011 (Jagbeer Singh v. State of U.P. Through C.B.I.) stands abated. Now this Court proceeds with the Criminal Appeal Nos.1510 of 2011 (Ashok Kumar Singh v. State of U.P. Through C.B.I.) and 1511 of 2011 (Mahendra Pal Singh v. State of U.P. Through C.B.I.).
4. The facts and circumstances leading to this case in a nutshell are that M.P. Singh, Branch Manager was posted in Bank of India, Etawah Branch in the year 1984. While functioning as Manager of the Branch, he connived with Ashok Kumar Singh and Ram Krishna Shukla, Partner and Clerk of M/S Durga Cold Storage, Lakhna, District Etawah2 and sanctioned loan to 18 villagers on the basis of forged receipts of potatoes prepared by Ashok Kumar Singh and Ram Krishna Shukla and consequently a loss of Rs.1,70,000/- occurred to the Bank and the first information report was registered against the appellants under Sections 120-B, 420, 467, 471 I.P.C. & Section 5(2) read with Section 5(1)(D) of Prevention of Corruption Act, 1947. M.P. Singh sanctioned loan to Madan Singh, Krishna Murari s/o Devi Dayal, Vrindaban, Ram Murti Singh, Ram Kailash, Kanchhed, Krishna Murari s/o Ballabhyasi, Phool Chandra, Suresh Chandra, Sewa Ram, Krishna Murari s/o Deen Dayal, Indra Pal, Chheda Lal, Bachchan Lal, Tulsi Ram, Ram Charan, Balak, Om Prakash on the basis of application and photograph verified by Ashok Kumar Singh without post verification of the facts stated therein. Jabbeer Singh applied for loan faking as Ram Murti Singh, which was sanctioned by M.P. Singh though he never deposited any potato in Cold Storage. Photograph of Jagbeer Singh was verified by Ashok Kumar Singh. Ashok Kumar Singh stood guarantor of all the sanctioned 18 loans. Accordingly, the Investigating Officer submitted charge-sheet under Sections 120B, 419, 420, 467, 471 I.P.C. & Section 5(2) read with Section 5(1)(D) of Prevention of Corruption Act, 1947.
5. The appellant namely M.P. Singh was charged for the offence under Section 5(2) read with Section 5(1)(D) of the Act parallel Section 13(2) read with Section 13(1)(D) of the Act, Sections 120B read with Section 420 & 468, 471 I.P.C. and the appellant Ashok Kumar Singh was charged for the offence under Sections 120B read with Section 420 & 468, 471 I.P.C. to which they denied and claimed trial.
6. To bring home the guilt of the appellants, the prosecution has examined as many as 22 witnesses namely P.W.-1 Sardar Singh Sharma,(Sanctioning Authority), P.W.-2 A.N. Mishra (Sanctioning Authority), P.W.-3 Phool Singh, P.W.-4 Krishna Murari, P.W.-5 Subhash Chandra, P.W.-6 Suresh Chandra s/o Ram Murti Mishra, P.W.-7 Rajendra Singh, P.W.-8 Rupendra Singh, P.W.-9 Tulsi Ram Singh, P.W.-10 Shiv Balak, P.W.-11 Chheda Lal, P.W.-12 Ram Kailash, P.W.-13 Ram Charan, P.W.-14 Sewa Singh, P.W.-15 Om Prakash, P.W.-16 Indra Pratap Singh, P.W.-17 Suresh Chandra, P.W.-18 Amar Singh, P.W.-19 Jagdish Kumar Mahajan, P.W.-20 Darshan Dayal Goyal, P.W.-21 Ram Mohan Krishan (Investigating Officer), P.W.-22, Ram Chandra (Investigating Officer).
7. Documentary evidence adduced and proved by the prosecution is as per list paper no.-A-3/15, loan file of Phool Chandra, Badan Singh, Krishna Murari s/o Ballabhyari, Shiv Bal, Suresh Chandra, Sewa Ram, Vrindaban, Ram Charan, Lakhan Singh, Om Prakash, Ram Kailash Singh, Indra Pal Singh, Chheda Lal, Ram Murti Singh, Tusli Ram, Badan Singh, Kanchhed Singh. The prosecution has also filed true copy of ledger files of the Bank of India, Etawah.
8. P.W.-1 Sardar Singh Sharma, Assistant Superintendent of Post, Jhansi has proved sanction order against the appellant Jagbeer Singh exhibit Ka-1 in his oral deposition. P.W.-2 A.N. Mishra, Branch Manager, Bank of India, Indira Nagar, Lucknow has proved sanction order against the appellant M.P. Singh exhibit Ka-2 in his oral deposition proving the signatures of the then Sanctioning Authority P.S. Janeja, who had died at the time of evidence in th present case. P.W.-3 Phool Singh, has deposed on oath that he never applied for any loan of Rs.5,000/- to the Bank of India, Etawah Branch and has denied the signatures and photo on the application for loan. He has further stated that he never deposited any potato in the Cold Storage. P.W.-4 Krishna Murari has also denied from moving any application for grant of loan of Rs.5,000/- and has further denied the photo and signatures on the loan application. P.W.-5 Subhash Chandra has also denied from taking any loan and moving of any application for the same or depositing potato in the Cold Storage. P.W.-6 Suresh Chandra s/o Ram Murti Mishra has also denied for moving of any application for grant of loan of Rs.5,000/-. P.W.-7 Rajendra Singh has stated on oath that his father died in the year 2001 and he never applied for any loan in the said bank. Photo pasted on the loan application is not of his father and his father was illiterate man, who never signed, as such, the alleged signature is not of his father. P.W.-8 Rupendra Singh has also stated that his father also did not take any loan of Rs.5,000/- from the said bank and also denied signatures of his father on the alleged loan application. It has further been stated that he is not aware whether his father deposited potato in the year 1984 in the Cold Storage. P.W.-9 Tulsi Ram Singh had denied his photo and alleged signatures on the loan application in his oral testimony, but has admitted that he deposited 105 bags of potato in the Cold Storage, but the receipts filed are not related to his potatoes. P.W.-10 Shiv Balak has also denied photo and his signatures on the alleged application for loan and deposition of any potato in the said Cold Storage. P.W.-11 Chheda Lal has also denied his signatures and photo on the said loan application and deposition of any potato in the Cold Storage. P.W.-12 Ram Kailash has also denied his signatures and photo on the loan application. P.W.-13 Ram Charan has stated on oath that he never took any loan of Rs.5,000/- and the alleged signatures and photo do not belong to him. P.W.-14 Sewa Singh has also stated on oath that he never applied for loan of Rs.5,000/- and the alleged photo and signatures do not belong to him. P.W.-15 Om Prakash has also denied for applying any loan in the said bank or depositing potato in the Cold Storage. P.W.-16 Indra Pratap Singh has also denied photo and signatures on the alleged loan application. P.W.-17 Suresh Chandra has also denied signatures and photo on the said loan application. He has also stated that he deposited his potato in the Cold Storage, but did not remember the quantity of the same. P.W.- 18 Amar Singh has stated on oath that his cousin Badan Singh died five years back and he did not apply for any loan to the Bank. He has denied the photo and signatures on the loan application. P.W.-19 Jagdish Kumar Mahajan, Chief Manager, Bank of India, City Centre Branch, G.T. Road, Amritsar has deposed on oath that he was posted as Assistant Manager, Credit in the Bank of India, Etawah Branch in 1998 and the appellant M.P. Singh was the Branch Manager earlier in the said Branch, as such, he is aware about writing and signatures of the appellants M.P. Singh and Ashok Kumar Singh. He has proved exhibit A-1, A-13, signatures of M.P. Singh and signatures of the appellant Ashok Kumar Singh exhibit Ka-16 to Ka-27 in his oral testimony. He has further proved the signatures of the appellant M.P. Singh on all the loan files and applications of the candidates moved in the said Branch of the Bank. P.W.-20 Darshan Dayal Goyal retired Government Examiner Of Questioned Documents, Hyderabad has proved exhibit Ka-47, Ka-48 and Ka-49 in his oral testimony. P.W.-21 Ram Mohan Krishan, retired Superintendent of Police, C.B.I., Investigating Officer of the present case has proved the prosecution papers and charge-sheet exhibit Ka-50 in his oral deposition. P.W.-22 Ram Chandra has proved signatures of the then Inspector, C.B.I., Lucknow on the first information report exhibit Ka-51 and also stated that the investigation of the present case was further transferred to P.W.-21, who submitted charge-sheet after completion of investigation.
9. Incriminating evidence and circumstances were put to the appellants under Section 313 Cr.P.C. in which they categorically denied the allegation of the prosecution and claimed false implication. The appellant M.P. Singh has categorically stated that no fake distribution of loan was done by him, the entire process was dependent on the verification of photo and signatures of the applicant. It has also been stated that there was no arrangement of verification on part of the Bank Manager, but the same was to be done by Agriculture Assistant and other staff of the Bank. It has also been stated that the loan was to be sanctioned on the basis of receipts issued by the Cold Storage, who have not been handed over to the C.B.I. The Additional Manager and Agriculture Assistant were responsible for verification, but no enquiry has been made from them. The photograph pasted on the loan application were verified by the partner of the Cold Storage, on which premise the loan was sanctioned. Moreover, out 38 sanctioned loan only 18 have been alleged to be fake. The witnesses have falsely deposed against them.
10. The appellant Ashok Kumar Singh has stated that he did not verify the photograph pasted on the loan application/file and he issued receipts for deposition of potatoes on actual basis, nothing fake was done. He has further stated that potatoes, which were deposited in the Cold Storage was weighed by his clerk and then the receipts (Takh Patti) was prepared by the clerk, signature/thumb impression of the depositor was taken and the details were filled up as per statement of the depositor. Then the receipt was placed before him for signature and lastly handed over to the depositor. It has further been stated that whosoever wanted loan used to apply to the Bank for loan and he used to sign as guarantor of the applicant. In the same capacity, the photograph of the applicant used to be verified. The alleged 18 loan applications were brought by D.S. Kushwaha, Agriculture Assistant to him and he signed and verified on the basis of receipts (Takh Patti). This was the procedure followed and there was no reason to doubt the same. The Bank filed a recovery suit and he took the entire responsibility by himself. He has not committed any intentional offence as alleged by the prosecution.
11. In defence the appellant, M.P. Singh, has produced himself as D.W.-1 and the appellant Ashok Kumar Singh has submitted documentary evidence as per list B-251/1-251/4. D.W.-1 M.P. Singh has also submitted documents as per list B-257 and reiterated his version under Section 313 Cr.P.C. pertaining to the allegations of the prosecution.
12. The trial court held that the appellants committed the said offence and prosecution established the circumstances, proving the appellants' guilty (i) namely M.P. Singh under Section 13(2) read with Section 13(1)(D) of Prevention of Corruption Act, 1988 & Sections 120-B read with Section 420, 468, 471 I.P.C and sentenced him under Section 13(2) read with Section 13(1)(D) of Prevention of Corruption Act, 1988 for three years rigorous imprisonment with fine of Rs.20,000/-, under Section 120-B read with Section 420 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, under Section 468 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/- and under Section 471 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, and (ii) appellant namely Ashok Kumar Singh under Sections 120-B read with Section 420, 468, 471 I.P.C and sentenced him under Section 120-B read with Section 420 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-, under Section 468 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/- and under Section 471 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/-. Aggrieved by the verdict of the conviction, the appellants preferred the present appeal.
13. Heard Mr. Dileep Kumar, learned counsel for the appellants, Mr. Anurag Kumar Singh, learned counsel for the appellant in connected appeal and Mr. Bireshwar Nath, learned counsel for the respondents and perused the record.
14. Learned counsel for the appellants has submitted that the incident pertains to the year 1984, whereas the first information report was registered in 1987 and charge-sheet submitted on 11.12.1989. It has been submitted that 36 loan applications were approved for Rs.2,36,000/- and out of those, only 18 have been alleged to be fake loan applications. It has also been submitted that there was no procedure prescribed for issuance of receipts by the Cold Storage, whatever practice was prevalent, the receipts were issued to the depositors of the potatoes accordingly. The alleged endorsement of verification by the appellant Ashok Kumar Singh has not been substantiated by any expert opinion neither it was put to the appellant in the statement under Section 313 Cr.P.C.
15. Learned counsel for the appellants has also argued that the appellant M.P. Singh acted within his powers and sanctioned loan as per his limit, as far as the question of verification before and after granting the loan is concerned, it was the duty of the Agriculture Assistant. Moreover complaint was not lodged by any party for any such offence against the Bank Manager. It has further been argued that there was no criminal intention on the part of the appellant, as such no offence can be said to be committed regarding cheating or forgery. Moreover, there are lot of discrepancies and contradictions in the evidence of witnesses which falsify the prosecution case.
16. Per contra, learned counsel for the C.B.I., contended that the prosecution has established the guilt of appellants in the commission of offence in this case. The FIR version has fully been supported by oral and documentary evidence, based on the said evidence, the court below rightly convicted the appellants and the impugned judgment warrants no interference.
17. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record.
18. In the present case the appellant M.P. Singh Branch Manager, Bank of India, Etawah Branch connived with the other appellant Ashok Kumar Singh, Partner of the Cold Storage in the year 1984 and sanctioned loan to 18 villagers on the basis of alleged forged receipts of potatoes prepared by Ashok Kumar Singh and Ram Krishna Shukla causing loss of Rs.1,70,000/- to the Bank. Prominently the appellants were charged for the offences under Sections 120B read with Section 420 & 468, 471 I.P.C., which read as under:
"120B. Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged [document or electronic record].--Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."
19. The appellant M.P. Singh has also been charged with for the offence under Section 5(2) read with Section 5(1)(D) of Prevention of Corruption Act, 1947 parallel Section 13(2) read with Section 13(1)(D) of the Act, which reads as under:
"13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,-- (a), (b), (c) ....
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
20. The very inception of the case has been questioned on the premise that no cheating or forgery can be attributed to the appellant Ashok Kumar Singh as alleged by the prosecution. It is a case of the prosecution that both the appellants M.P. Singh and Ashok Kumar Singh connived in sanctioning of 18 fake loans on the basis of fake potato receipts issued by the Cold Storage. Learned counsel for the appellant Ashok Kumar Singh has submitted that as per prevalent practice and procedure, the potato receipts were filled by the Clerk of the Cold Storage on the basis of information given by the depositors and then it was brought before the appellant Ashok Kumar Singh for countersigned. There was no verification at his level about the authenticity or identity of the depositors. A reference has been made to Government Order No.3532/Aththawan-1-98-1001281/28 dated 16.10.1998 issued under the U.P. Regulation of Cold Storages Act, 1976, which lays down the procedure regarding issuance of receipts of potato and verification of the depositor at that level, and it has been argued that present incident occurred in the year 1984 much prior to the said Government Order, which establishes the fact that there was no procedure for verification of identity at that time.
21. It has further been argued that the loan applications were moved in the Bank, which were brought to the appellant Ashok Kumar Singh for verification on the basis of receipts by a bank employee, as such if any verification was to be done, it was at the level of the bank and the appellant Ashok Kumar Singh verified on the basis of receipts issued by him, which had no photograph to match with the one pasted on the loan application. In the entire sequence stated above, there is no element of cheating on the part of the Ashok Kumar Singh as he himself has admitted issuance of receipts and his signatures on the same. He stood guarantor for the alleged loan on the basis of receipts and the documents produced for guarantee have not been alleged to be forged, thus, it cannot be accepted that there was any forgery on the part of the appellant Ashok Kumar Singh or intentional use of any forged document as genuine for the sanction of the said loans.
22. The appellant M.P. Singh, the then Bank Manager was not suppose to verify the identity and authenticity of the applicants while sanctioning the loan as it was the job assigned to the Agriculture Assistant, who has neither been charged nor tried by the prosecution. It was the Agriculture Assistant, who took the loan applications for verification to the appellant Ashok Kumar singh and the entire verification of the application was to be taken at his level, which appears not to be done as alleged by the prosecution. The appellant M.P. Singh sanctioned loan within his limit and there is no evidence, which may establish that the loan money was passed on to either of the appellants. It is pertinent to mention that the appellant Ashok Kumar Singh also deposited the entire money with the Bank and there was no inquiry or complaint either at the level of the Bank or at the level of any applicant. The connecting evidence in between the loan applicant and the depositor of potato is entirely missing in the present case and as such the charge of connivance in between the appellants cannot be established unless and until some benefit to either of them is shown in any manner whatsoever.
23. It has also been placed that there is an endorsement of identification and verification on the loan application form to the effect "I know him" by the appellant Ashok Kumar Singh, but admittedly no expert opinion has been sought about above the handwriting, as, but for the signature, endorsement has not been admitted by the appellant Ashok Kumar Singh. In such circumstance, it was for the prosecution to establish that the said endorsement was in the writing of the appellant Ashok Kumar Singh, which could have led to the conclusion that he verified and identified the alleged fake loan applicants. Moreover, it has also been argued that no specific question was put to the appellant Ashok Kumar Singh in his statement under Section 313 Cr.P.C. In this context, learned learned counsel for the appellants has referred the following cases:
(i) In State of U.P. v. Mohd. Iqram & Another; JT 2011 (6) SC 650, the Hon'ble Supreme Court observed as under:
"13. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation on incriminating material that has surfaced against him. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration. (Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC 2100; and Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC 200)."
(ii) In Shaikh Maqsood v. State of Maharashtra; (2009) 6 SCC 583, Hon'ble the Supreme Court observed as under:
"8. ''... 13. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.
14. The word `generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.
15. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed:
''30. ... it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. ... The questioning must, therefore, be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. ... Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.'
9. We find substance in the plea of learned counsel for the appellant that no question was put to the accused which established that he was the author of the crime. That being so the conviction cannot be maintained and is set aside. The appeal is allowed. The appellant be set at liberty forthwith unless required to be in custody in connection with any other case."
(iii) In State of Punjab v. Hari Singh and Others; (2009) 4 SCC 200, Hon'ble the Supreme Court observed as under:
"17. ''... 18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab (AIR1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed thus: (AIR p.620, para 21) "21. ... The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."
19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.
20. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. ..'"
24. In the instant case, admittedly specific question regarding endorsement of identification and verification on the loan application form to the effect "I know him" has not been put to the appellant Ashok Kumar Singh in his statement under Section 313 Cr.P.C. The effect of not giving an opportunity to the appellant for explaining circumstances, which appear against him, cannot be used against him or his conviction cannot be based on the same. Thus, it can be concluded that there is no cogent and convincing evidence regarding connivance of both the appellant in commission of crime of cheating and forgery as alleged by the prosecution.
25. The appellant M.P. Singh has also been charged for criminal misconduct while posted and functioning as Branch Manager in the said bank. Admittedly, the appellant sanctioned 36 loans within permissible limits, out of which 18 loans were alleged to be fake on the premise that the applicants said to be verified by the appellant Ashok Kumar Singh never existed, as such the loan sanctioned in their favour is said to be taken advantage by corrupt and illegal means or by abusing his position as a public servant by the appellant M.P. Singh. As far as the verification and identification is concerned, it was not the duty or foray of the appellant M.P. Singh, the then Branch Manager, but the same was to be done by the Agriculture Assistant before and after sanction of loan. There is no evidence, which may establish that the appellant M.P. Singh abused his position as a public servant for obtaining for himself or for any other person any pecuniary advantage as it has not been proved by the prosecution that the alleged sanctioned loan money was transferred to either of the appellants or to the alleged person as loan applicant. Mere averment that abuse of public position as resulted in the commission of crime is not sufficient enough to establish the said crime, unless and until it has been proved beyond reasonable doubt that either the appellants or some person has been benefited by the sanction of loan and financially loss has been caused to the Bank. It is pertinent to mention that the Bank neither conducted any inquiry nor any complaint was made by any of the applicants regarding wrongful gain or wrongful loss to them. In absence of substantive evidence regarding wrongful gain and wrongful loss, it cannot be held that the appellant M.P. Singh has committed criminal misconduct as alleged under Section 13(1)(d) of the Act.
26. To sum up, the entire assessment of the prosecution evidence leads to the conclusion that criminal conspiracy inter se the appellants for cheating and forgery has not been proved. The potato receipts have been admitted by the appellant Ashok Kumar Singh and sanctioning of loan on the said premise is also an admitted fact. The identity of depositors could not be verified by the Cold Storage or by the Bank as the Clerk and Agriculture Assistant having active involvement are neither accused nor witness. The connecting evidence between the loan applicant and the depositor of potato is fairly missing. In total 36 loans were sanctioned within the permissible limits, what was the occasion for 18 fake loan, in perspective of the fact that there is no wrongful loss or gain established by the prosecution.
27. Mere importantly, none of the documents submitted by the Cold Storage as guarantee have been said to be forged and the Bank recovered the entire amount from the guarantor. There is nothing to establish use of any forged document as genuine by the appellants. The alleged abuse of position as public servant by the Bank Manager for any wrongful gain or loss is also not established. The alleged verification evidence against the appellant Ashok Kumar Singh cannot be used against him as per legal provisions discussed earlier. In the circumstance, conspiracy for cheating and forgery cannot be attributed to the appellant and no criminal misconduct can be held against the appellant M.P. Singh.
28. Thus, on the basis of analysis made herein above, this Court is of the view that the trial court's finding on the point of holding guilty the accused appellant namely M.P. Singh for the offence under Section 13(2) read with Section 13(1)(D) of Prevention of Corruption Act, 1988 & Sections 120-B read with Section 420, 468, 471 I.P.C and the appellant Ashok Kumar Singh for the offence under Sections 120-B read with Section 420, 468, 471 I.P.C is not in accordance with the evidence and law and the same is not sustainable, and the appeals filed by the appellants are liable to be allowed.
29. For all the reasons stated above, the appellants are entitled to the benefit of doubt and accordingly are entitled to acquittal.
30. In the result, the Criminal Appeal Nos.1510 of 2011 (Ashok Kumar Singh v. State of U.P. Through C.B.I.) and 1511 of 2011 (Mahendra Pal Singh v. State of U.P. Through C.B.I.) are allowed and the judgment and order dated 30.08.2011 passed by learned Special Judge, C.B.I., Court No.2, Lucknow in Criminal Case No.2 of 1990 (State v. M.P. Singh), arising out of R.C.No.6A/1987, under Sections 120B, 420, 467, 471 I.P.C. & Section 5(2) read Section 5(1)(D) of Prevention of Corruption Act, 1947, Police Station C.B.I./A.C.B., Lucknow is hereby set aside. The appellants Ashok Kumar Singh and Mahendra Pal Singh (M.P. Singh) are acquitted on benefit of doubt of the charges levelled against them.
31. Appellants are on bail. They need not surrender. Their bail bonds and sureties stand discharged.
32. Let the file of the Criminal Appeal No.1509 of 2011 (Jagbeer Singh v. State of U.P. Through C.B.I.) be consigned to record.
33. Let a certified copy of this judgment along with lower court record, if any, be sent to the trial court concerned for its compliance forthwith.
Order Date:- 13.02.2019 Anupam S/-
(Rekha Dikshit,J.)