Jharkhand High Court
Smt Gayatri Srivastava vs State Of Jharkhand on 14 September, 2017
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Criminal Revision No. 352 of 2005
Against the judgment dated 27.09.2004 passed in Criminal
Appeal No. 15 of 2000/ 28 of 2003 by learned Additional
Sessions Judge-cum Fast Track Court II at Bermo, Tenughat,
and the judgment of conviction and the order of sentence
dated 08.02.2002 passed by learned Additional Chief Judicial
Magistrate, Bermo, Tenughat, in G.R. Case No. 456 of 1996
(T.R. No. 186 of of 2000)
Smt. Gayatri Srivastava ... Petitioner
Versus
The State of Jharkhand ... Opposite Party
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PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
For the Petitioner : Mr. Deepak Kumar, Advocate
For the State : Mr. Md. Asif Khan, APP
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C.A.V. on 07.09.2017 Delivered on 14.09.2017
Rongon Mukhopadhyay, J.: 1. Heard Mr. Deepak Kumar, learned
counsel, appearing for the petitioner and Mr. Md. Asif Khan, learned A.P.P.
for the State.
2. This application is directed against the judgment dated 27.09.2004
passed in Criminal Appeal No. 15 of 2000/ 28 of 2003 by learned Additional
Sessions Judge-cum Fast Track Court II at Bermo, Tenughat, whereby and
whereunder, the judgment of conviction and the order of sentence dated
08.02.2002passed by learned Additional Chief Judicial Magistrate, Bermo, Tenughat, in G.R. Case No. 456 of 1996 (T.R. No. 186 of of 2000), convicting the petitioner for the offences punishable u/s 467, 468, 471 and 420 of the Indian Penal Code, has been affirmed only with respect to Section 420 I.P.C., whereas the sentence imposed on her of R.I. for 7 years has also been affirmed.
3. It has been stated by Mr. Deepak Kumar, learned counsel for the petitioner that the main accused in this case is J. K. Prasad and the petitioner has been convicted only on account of the fact that she is the wife of J. K. Prasad. It has also been stated that no amount was withdrawn in terms of Ext. 3, 4 and 5 by the petitioner. Learned counsel further submits that the entire conviction is based upon the evidence of P.W. 3 and in absence of any corroboration, such evidence should not have been relied upon either by the trial court or by the learned appellate court. An alternative argument has been put forward by learned counsel for the petitioner that considering the fact that the petitioner is facing rigours of prosecution case for more than two decades and she has remained in custody for some time, 2. the period of sentence be suitably modified, if this Court is not inclined to interfere with the impugned judgment of conviction.
4. Learned A.P.P. appearing for the State has opposed the prayer of the petitioner and has supported the impugned judgment.
5. The prosecution story in brief is that Jeewan Krishna Prasad, who was the husband of the petitioner, was the Branch Manager of Bhandaridih Branch of State Bank of India (S.B.I.) from 11.02.1984 to 30.04.1988. It is alleged that J. K. Prasad had committed irregularity in several branches, as a result of which the Zonal Office directed the informant to conduct an inquiry. It is alleged that J. K. Prasad and his wife committed criminal breach of trust by withdrawing Rs. 1,29,872/- and deposited the same in his account and in the account of his wife. It has been alleged that the accused persons had defalcated the amount of Rs. 1,17,000/- as also interest on the said amount to the tune of Rs. 12,872/-. Based on the aforesaid allegation Chandrapura P.S. Case No. 44 of 1996 was registered for the offences punishable u/s 467, 468, 471, 409 and 420 I.P.C.
6. Learned trial court vide judgment dated 08.02.2000 had convicted the petitioner for the the offences punishable u/s 467, 468, 471 and 420 of the Indian Penal Code and sentenced her to various terms. The petitioner preferred an appeal being Criminal Appeal No. 15 of 2000/ 28 of 2003 in which vide judgment dated 27.09.2004, the learned Additional Sessions Judge, Bokaro had upheld the conviction of the petitioner u/s 420 I.P.C.
7. In course of trial 05 witnesses were examined on behalf of the prosecution. P.W. 1 Shishir Kumar Sao was Field Officer in S.B.I. and he was posted at Bhandaridih Branch of S.B.I. on 30.09.1993 as a Cashier. This witness had stated that he had come to know that J. K. Prasad along with his wife had defalcated an amount of Rs. 1,28,872/-. This witness is a hearsay witness. P.W. 2 Bhawesh Kumar Khan was posted as clerk in S.B.I., Bhandaridih Branch and remained there till 1988. This witness is also a hearsay witness. P.W. 3 Bharat Bandhu Bose is the informant, who has stated that he joined Bhandaridih Branch of S.B.I. on 29.11.1993. He had further deposed that since some irregularities were found during the tenure of J. K. Prasad, the Zonal Office had directed him to conduct an enquiry. The inquiry report was proved by this witness which was marked as Ext. 1. He stated that during inquiry an amount of Rs. 49,468/- was found transferred and entered in ledger No. 5 after being withdrawn from the Special Term Deposit Interest (STDR) of the account of the bank illegally.
3.He has further stated that the said amount was not entered in any body's account. He had also disclosed that Rs. 90,500/- was withdrawn which was deposited in the P.P.F. account of J. K. Prasad. An amount of Rs. 9,500/- was transferred to the account of Smt. Gayatri Srivastava (petitioner) and she had withdrawn an amount of Rs. 30,000/- from her account although she had balance of Rs. 60.91. The said amount was passed by the petitioner. He has also stated that on 25.11.1985 Rs. 10,000/- was withdrawn from the account although such amount was not entered in the account of the petitioner. This witness had proved the withdrawal form which had been marked as Ext.-3. He has also stated that on 03.12.1985 Rs. 2,000/- was withdrawn in the name of the petitioner and at that time the money was not in the account. He has also proved withdrawal form Ext. 5 which is also in the name of the petitioner and Ext. 6 which is the ledger book Page-C-988 in the name of the petitioner, which also bears the initial of J. K. Prasad, the passing officer. This witness had stated that amount of Rs. 78,584/- had been illegally withdrawn from STDR interest account and Rs. 875/- as loss of interest which was in the name of the petitioner. This witness had also proved some page of the ledger which has been variously marked as Exhibits by the prosecution. P.W. 4 Sukumar Kumar Buxi had deposed that he was clerk-cum-cashier who was posted in the Bhandaridih Branch, S.B.I. in the month of June 1996. This witness had proved the seizure list which has been marked as Ext. 22 and he has stated that he has never given statement u/s 161 Cr.P.C. before the police. P.W. 5 Bijay Kumar Singh is the Investigating Officer who has stated that the informant had produced before him the documents regarding misappropriation of bank money. This witness had prepared the seizure list marked as Ext. 22 and has also recorded the statement of the witness u/s 161 Cr.P.C. He has further stated that the statement of P.W. 4 was also recorded but it was not entered in the case diary due to mistake. On completion of investigation, this witness had submitted charge-sheet against the petitioner and her husband J. K. Prasad.
8. The oral and documentary evidence adduced by the prosecution proves that J. K. Prasad with an ill-intention and in connivance with the petitioner had withdrawn amounts from the STDR account of the bank. It further appears that although the petitioner did not have the requisite balance but the withdrawal forms were passed by J. K. Prasad and the amounts were withdrawn on several occasions. The withdrawal forms and 4. the bank ledgers relating to such transaction have been duly proved by the prosecution. It thus cannot be said that merely because the petitioner was the wife of main accused J. K. Prasad, she has been falsely implicated as her active connivance in causing loss to the bank and correspondingly causing wrongful gain to her as well as her husband, have sufficiently been proved in course of trial. P.W. 3 is the star witness who had conducted inquiry on the orders of the Zonal Office and had found several discrepancies with respect to transfer of money from the account of the petitioner, although there was no sufficient balance available at the time of withdrawal. The evidence of P.W. 3 is corroborative and conclusive with respect to the involvement of the petitioner in cheating the bank in connivance with her husband. The ingredients of cheating have sufficiently been fulfilled and there has been guilty intention from the very inception of the transaction which also involved the petitioner and taking into consideration such facts and circumstances, the petitioner had rightly been convicted u/s 420 I.P.C. where as the trial court had acquitted the petitioner for the charges u/s 467, 468, 471 and 420 I.P.C.
9. There being no reason to conclude otherwise, the order of conviction passed against the petitioner is hereby sustained so far it relates to conviction u/s 420 I.P.C. and which was affirmed by the learned appellate court.
10. As regards the sentence which has been imposed upon the petitioner, it appears that the petitioner has been facing rigours of the prosecution case for more than two decades and she has remained in custody for sometime. The petitioner is a widow lady, as has been stated by learned counsel for the petitioner. The sentence imposed upon the petitioner seems to be excessive. Considering the aforesaid scenario, the order of sentence passed against the petitioner is modified to the period already undergone by the petitioner.
11. This application stands dismissed with the aforesaid modification in the order of sentence awarded to the petitioner.
(RONGON MUKHOPADHYAY, J.) Jharkhand High Court, Ranchi Dated the 14th September, 2017 MK/N.A.F.R.