Karnataka High Court
Sri. Shivasharanappa vs State By Inspector Of Police on 8 August, 2013
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 08TH DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRIMINAL APPEAL No.977/2008 c/w
CRIMINAL APPEAL Nos.978/2008, 979/2008 & 980/2008
IN CRL.A Nos.977/2008, 978/2008
979/2008 & 980/2008
BETWEEN
SRI SHIVASHARANAPPA
S/O SIDDARAMAPPA PADA SHETTY
AGE : 64 YEARS,
R/AT NO 241, 10TH CROSS, JP NAGAR
I STAGE, BANGALORE ... COMMON APPELLANT
(By Sri.RAVI B.NAIK SENIOR COUNSEL FOR
Sri.V M SHEELVANT, ADVS.)
AND
STATE BY INSPECTOR OF POLICE
CBI, SPE, BANGALORE ... COMMON RESPONDENT
(By Sri.M B KANAVI, ADV.)
CRIMINAL APPEAL No.977/2008 IS FILED U/S.374
(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DT.27.09.2008 PASSED IN
SPL(CBI).C.C.NO.4/2001 ON THE FILE OF PRL.SESSIONS &
SPECIAL JUDGE, DHARWAD CONVICTING THE
APPELLANT/ACCUSED FOR OFFENCES P/U/S.420, 468,
2
465 AND 471 IPC AND ALSO FOR OFFENCES P/U/Ss
13(1)(d) R/W 13(2) OF THE PREVENTION OF CORRUPTION
ACT, 1988 AND ETC.
CRIMINAL APPEAL No.978/2008 IS FILED U/S.374
(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DT.27.09.2008 PASSED IN
SPL(CBI).C.C.NO.5/2001 ON THE FILE OF PRL.SESSIONS &
SPECIAL JUDGE, DHARWAD CONVICTING THE
APPELLANT/ACCUSED FOR OFFENCES P/U/S.420, 468,
465 AND 471 IPC AND ALSO FOR OFFENCES P/U/Ss
13(1)(d) R/W 13(2) OF THE PREVENTION OF CORRUPTION
ACT, 1988 AND ETC.
CRIMINAL APPEAL No.979/2008 IS FILED U/S.374
(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DT.27.09.2008 PASSED IN
SPL(CBI).C.C.NO.6/2001 ON THE FILE OF PRL.SESSIONS &
SPECIAL JUDGE, DHARWAD CONVICTING THE
APPELLANT/ACCUSED FOR OFFENCES P/U/S.420, 468,
465 AND 471 IPC AND ALSO FOR OFFENCES P/U/Ss
13(1)(d) R/W 13(2) OF THE PREVENTION OF CORRUPTION
ACT, 1988 AND ETC.
CRIMINAL APPEAL No.980/2008 IS FILED U/S.374
(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DT.27.09.2008 PASSED IN
SPL(CBI).C.C.NO.7/2001 ON THE FILE OF PRL.SESSIONS &
SPECIAL JUDGE, DHARWAD CONVICTING THE
APPELLANT/ACCUSED FOR OFFENCES P/U/S.420, 468,
465 AND 471 IPC AND ALSO FOR OFFENCES P/U/Ss
13(1)(d) R/W 13(2) OF THE PREVENTION OF CORRUPTION
ACT, 1988 AND ETC.
THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant in Criminal Appeal Nos.977/2008, 978/2008, 979/2008 and 980/2008 (hereinafter referred to as the accused) is common.
2. The accused was tried in Special (CBI) C.C.No.4/2001, 5/2001, 6/2001 and 7/2001 for offences punishable under Sections 420, 468, 465, 471 IPC and also for offences punishable under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988.
3. The accused has been held guilty of offences punishable under Sections 420, 468, 465, 471 IPC and also for offences punishable under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988, and he has been sentenced to undergo imprisonment for a period ranging from six months to 4 years for the aforestated offences and was also directed to pay fine with default sentence. 4
4. In brief, the case of prosecution is as follows:
The Police Inspector of CBI, Anti Corruption Branch, Bangalore namely M.C.George examined as PW.12 (in Special (CBI) C.C.No.4/2001), PW.11 (in Special (CBI) C.C.No.5/2001), PW.8 (in Special (CBI) C.C.No.7/2001) and PW.8 (in Special (CBI) C.C.No.8/2001) on the orders of Superintendent of Police, CBI, Bangalore, registered a case in RC.3/(A)/2001 on the basis of source information against the accused namely Shivasharanappa Siddarampaa Pada Setty @ S.S.Padasetty for offences punishable under Sections 201, 420, 468, 471 IPC and also for offences punishable under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 and submitted first information report as per Ex.P42.
5. It is the case of prosecution that accused was working as Special Assistant in Vijaya Bank, Gulbarga Branch during 1997-99. He was discharging supervisory functions in the said bank. The accused was authorised to 5 pass cash cheques upto Rs.25,000/- and transfer/clearing cheques upto Rs.1,00,000/-. If the cheque amount was above the said limit, the cheques have to be countersigned by the Branch Manager (K.B.Nagarajappa examined as PW.2 in all the aforestated cases). The accused was in-charge of Savings Bank account, Current account, Over Draft account and Cash Credit account and he was also issuing blank cheque books to the account holders of the aforestated accounts.
6. It is alleged, during period between 1997-99, the accused by abusing his official position as Special Assistant, Vijaya Bank, Gulbarga Branch, caused fraudulent withdrawals by using forged cheques taken out of the blank cheque books of Over Draft Account Nos.18/96 and 14/98 of Sri.Jayakumar Madgi and from the Current Account Nos.744 and 829 standing in the name of the Executive Engineer, KUWS&D Board, Gulbarga Division, which he had fraudulently possessed and thus put Vijaya Bank to loss to 6 the tune of Rs.6,75,000/- in all. The details of such fraudulent withdrawals are as under:
From the OD A/c No.18/96 and 14/98 of
Sri.Jayakumar Madgi
Cheque Date Amount Favouring Date of
No. Payment
0951949 6.5.1998 30,000 Self 6.5.1998
0951906 26.5.1998 30,000 Self 27.5.1998
0951913 3.7.1998 30,000 Shivaji 3.7.1998
0951914 11.7.1998 40,000 C.S.Patil 11.7.1998
0951917 1.8.1998 30,000 Shantappa 1.9.1998
Total 1,60,000
From the Current Account Nos.744 and 829 of the Executive Engineer, KUWS&D Board Division, Gulbarga Cheque Date Amount Favouring Date of No. Payment 0439793 25.3.1999 65,000 Mr.D.D.Patil 25.3.1999 0439786 8.2.1999 50,000 Sri.D.D.Patil 8.2.1999 0573101 17.5.1999 50,000 D.D.Patil 17.5.1999 0573115 4.9.1999 1,00,000 Kalyan Rao 4.9.1999 Patil 0573126 31.7.1999 2,50,000 Sri.C.A.Patil 7.8.1999 Total 5,15,000 7
7. After investigation, final report in Special (CBI) C.C.No.4/2001 was filed for committing forgery of cheques bearing Nos.0573115 and 0573126 (marked as Ex.P2 and Ex.P3 in Spl.C.C.4/2001) and fraudulently encashing cheque bearing No.0573115 dated 04.09.1999 for a sum of Rs.1,00,000/- and cheque bearing No.0573126 dated 31.07.1999 for a sum of Rs.2,50,000/-.
8. The final report in Special (CBI) C.C.No.5/2001 was filed for committing forgery of cheque bearing No.0439793 dated 25.03.1999 and fraudulently encashing cheque bearing No.0439786 dated 08.02.1999 for a sum of Rs.65,000/- and cheque bearing No.0573101 dated 17.05.1999 for a sum of Rs.50,000/-.
9. The final report in Special (CBI) C.C.No.6/2001 was filed for committing forgery of cheque bearing No.095193 dated 03.07.1998 and fraudulently encashing a sum of Rs.30,000/- (value of the cheque) and fraudulently 8 encashing cheque bearing No.0951914 dated 11.07.1998 for a sum of Rs.40,000/- (value of the cheque).
10. The final report in Special (CBI) C.C.No.7/2001 was filed for committing forgery of cheque bearing No.0951849 dated 6.5.1998 and fraudulently encashing a sum of Rs.30,000/- (value of the cheque) and cheque bearing No.0951906 dated 26.5.1998 and fraudulently encashing cheque bearing No.0951917 dated 11.8.1998 for a sum of Rs.30,000/- (value of the cheque).
11. The final reports in Spl. (CBI) C.C.No.4/2001 and Spl. (CBI) C.C.No.5/2001 were filed for forging cheques on the current accounts held by the Karnataka Urban Water Supply & Drainage Board (hereinafter referred to as 'KUWS&D Board'), Gulbarga Division.
12. The final reports in Spl.(CBI)C.C.No.6/2001 and Spl. (CBI) C.C.No.7/2001 were filed for forging the cheques of over-draft account held by Sri.Jayakumar Madgi. 9
13. The evidence adduced in the above cases, in particular, evidence relating to sanction accorded to prosecute the accused, duties entrusted to accused, modus operandi of the accused to forge the cheques and encashing cheques by forging entries in the corresponding documents and receipt of contents of the cheque by the accused, evidence relating to confessional statement given by the accused and remittance of amount by the accused, search and seizure of incriminating articles from the house of accused and defense of accused is common.
14. The evidence given by the account holders namely the Executive Engineer of KUWS&D Board and Sri.Jayakumar Madgi in two cases defer in relation to cheque numbers and documents maintained in the office of KUWS&D Board.
For the sake of convenience and to avoid repetition and discussion of facts, it is necessary to consider evidence adduced by prosecution and findings of learned trial Judge 10 in Spl.(CBI)C.C.No.4/2001 and Spl. (CBI) C.C.No.5/2001 at the first instance and thereafter, Spl. (CBI) C.C.No.6/2001 and Spl. (CBI) C.C.No.7/2001.
15. Before adverting to evidence given by the account holders namely the Executive Engineer of KUWS&D Board and Sri.Jayakumar Madgi, it will be useful to refer to evidence of witnesses, which is common to all the cases.
It is not in dispute that accused was working as Special Assistant in Vijaya Bank, Gulbarga Branch from 1997-1999.
16. PW.1- K.Jayakar Shetty, was the then Deputy General Manager of Vijaya Bank, Head Office, Bangalore. He was the competent authority to initiate disciplinary action against the accused. PW.1 has given evidence in proof of sanction accorded to prosecute the accused for the aforestated offences.
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PW.1 has deposed; that during the year 2001, he was working as Deputy General Manager of Vijaya Bank, Head Office and he was the competent authority to initiate disciplinary action against Award Staff and Officers upto Scale III including removal of service of the employees of Vijaya Bank. He has deposed that, during years 1997-1999, accused was working as a Special Assistant in Vijaya Bank, Gulbarga Branch. He has accorded sanction to prosecute the accused for offences punishable under Sections 420, 468, 471 IPC and also for offences punishable under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988, in CRI Crime No.RC.38/2001. Ex.P1 is the sanction order passed by PW.1.
PW.1 has deposed; that before passing sanction order, he had perused the copy of first information report, statement of witnesses and other related documents in respect of the aforestated case. On consideration of the documents, he was satisfied that there was prima-facie case to prosecute the accused for the aforestated offences. 12 Therefore, he accorded sanction to prosecute the accused for the aforestated offences. PW.1 was satisfied that accused had committed forgery of cheques of Account No.18/96 and 14/98 of Sri.Jayakumar Madgi and fraudulent acts committed by the accused in relation to Current Account No.s744 and 829 held by the Executive Engineer, KUWS&D Board. In all, there were ten transactions wherein, the accused had committed forgery of cheques and connected records. In the disciplinary action initiated against accused, he was found guilty and he was dismissed from service.
During cross-examination, PW.1 has deposed that he has not mentioned the particulars of the documents verified by him. He has also not given the date on which he had received the documents.
17. The learned counsel for accused would submit that sanction was accorded without application of mind. Therefore, Ex.P1 is not a valid document. 13
18. The prosecution has produced the sanction order and also examined PW.1 to prove the contents of sanction order. The evidence of PW.1 and contents of sanction order would reveal that PW.1 had applied his mind to the investigation records and nature of offences alleged against the accused. After being satisfied that accused has to be prosecuted for the aforestated offences, PW.1 has accorded sanction to prosecute the accused. Therefore, PW.1 cannot be found fault for according sanction to prosecute the accused for aforestated offences.
19. PW.2-A.B.Nagarajappa was working as Branch Manager of Vijaya Bank, Gulbarga Branch.
PW.2 has deposed; that accused was working as a Special Assistant in Vijaya Bank, Gulbarga Branch from 1998 till his suspension in the year 2001. PW.2 was conversant and acquainted with the handwriting of the accused. PW.2 has narrated the duties entrusted to the accused as a Special Assistant of the aforestated bank. 14
PW.2 has deposed; that accused was in-charge of Savings Bank department, current account department, Overdraft department and Cash credit department. The accused was expected to supervise all the aforestated departments and check all credits and debits, passing of cheques, maintaining cash scroll, verifying the signatures of the cheques presented for payment with reference to the specimen signatures which were maintained in the bank. The accused was authorised to pass cash cheques upto Rs.25,000/- and other transfer cheques upto Rs.1 Lakh. In order to pass a Cash cheque above Rs.25,000/-, he had to obtain second signature either from the Assistant Branch Manager or the Branch Manager.
PW.2 has given evidence relating to clearance of cheques and encashment of cheques. He has stated, whenever cheques are presented for encashment, the concerned clerk will issue token. After recording token number on the backside of cheque, the Ledger Clerk makes 15 entry regarding the said cheque in the concerned account Ledger and send the ledger to the Special Assistant (accused) for passing the cheque and payment. The Special Assistant (accused) has to verify the availability of funds in the account; whether there is sufficient balance in the account or not, whether cheque is issued to the particular account or not; whether the cheque issued bears the signature of Drawer or not. He had to compare signatures on cheques with specimen signatures maintained in the bank. After fulfilling all these conditions, the Special Assistant (accused) has to pass the cheque for payment by putting the 'Pay Cash' seal and has to affix his signature. The Special Assistant (accused) has to enter the details in the cash scroll maintained by him.
The Special Assistant (accused) was authorised to issue cheque books to the customers. The accused had to make entry in the Cheque Book Issuance Register. In the said register, he had to enter the date of issue of cheque book, cheque book number, account holder's name, to whom 16 the cheque books are issued and their account number. The Special Assistant (accused) had to take the signatures of the account holders/authorised representatives of account holders who have received the cheque books in the cheque issuance register and the Special Assistant (accused) shall put his initials for having delivered cheque books to the account holders or authorised representatives of account holders. The balancing of various accounts had to be done by the concerned clerk on specified period and it had to be verified by the Special Assistant. After verification, the Special Assistant (accused) shall send Balancing Register either to the Assistant Branch Manager or the Branch Manager.
The common evidence given by PW.2 about nature of work entrusted to the accused and procedure for clearance of cheques has not been controverted.
20. It is the case of prosecution that cheques bearing No.0573115 dated 4.9.1999 (Ex.P2) drawn on Current 17 account No.829 held by KUWS&D Board was issued in favour of Kalyan Rao Patil.
21. PW.2 has deposed; that accused had passed the Cheque (Ex.P2) by putting his signature and affixing the seal "Pay Cash". PW.2 has given similar evidence in relation to Cheque bearing No.0573126 dated 31.07.1999 (Ex.P3).
At this juncture, it is relevant to state that Ex.P2 was drawn for a sum of Rs.1,00,000/- and Ex.P3 was drawn for a sum of Rs.2,50,000/-.
PW.2 has deposed; that the contents of cheques as per Ex.P2 and P3 are in the handwriting of accused and accused had affixed his signature by putting seal "Pay Cash".
PW.2 has deposed; that in the Cheque Book Issue Register (Ex.P5) an entry was made to the effect on 09.04.1999, two cheque books containing Cheque leaves bearing No.0573001 to 0573200 were issued on the current account No.829 held by the Executive Engineer, KUWS&D 18 Board. The said entry has been initialed by the accused. PW.2 has deposed that in the normal course one cheque book will be issued at a time to the account holder. PW.2 verified Ex.P2 and P3 (forged cheque leaves) and found Ex.P.2 and Ex.P.3 had been taken out from Cheque book marked as per Ex.P5 (a).
At this juncture, it is relevant to state that accused has not disputed that Executive Engineer, KUWS&D Board was holding Current Account in Vijaya Bank, Gulbarga Branch.
22. The prosecution has examined PW.3- V.Chandrayya, the then Superintendent of Accounts, KUWS&D Board and PW.6-Suryakanth Bandeppa Biradar, the then Executive Engineer of KUWS&D Board, Gulbarga Division.
23. PW.3 has deposed; that he was working as Account Superintendent in KUWS&D Board. At the relevant time, Suryakanth Bandeppa Biradar (PW.6) was the 19 Executive Engineer. He was the authroised signatory of KUWS&D Board. One Basavaraj-FDA was in-charge cashier. They had maintained cheque book receipt register and cheque issuance register. They were entering cheque books received from the bank and also entering the serial number of the cheque book and serial number of cheque leaves. The said entries were countersigned by the Executive Engineer. PW.3 has given evidence with reference to contents of cheque book receipt register marked as per Ex.P29.
PW.3 has deposed that, in the register (Ex.P.29) there is no entry for having received cheque book containing cheque leaves 0573115 and 0573126. On the other hand, cheque book containing cheque leaves issued on 3.09.1999 and 06.09.1999 were in the series of 574545. He has deposed; when cheques are issued, cheque numbers and particulars of cheques and the name of party (payee) will be entered in the Cheque Issuance Register and entries will be countersigned by the Executive Engineer (PW.6-Suryakanth Bandeppa Biradar). PW.3, on verification of Cheque 20 Issuance Register has deposed that cheque bearing No.0573115 dated 04.09.1999 and cheque bearing No.0573126 dated 31.07.1999 were not issued from their office. He has specifically deposed; that when the cheques are issued to the parties on the account held by KUWS&D Board, the cheques will be crossed (payable to account holders) except when self cheques are drawn. PW.3 has deposed that, when 'account payee' cheques are issued to the parties, they will obtain acknowledgement from parties. He has deposed that Ex.P2 and Ex.P3 are not the cheques issued on behalf of KUWS&D Board and seals affixed on Ex.P2 and Ex.P3 are not the seals of office of KUWS&D. PW.3 has further deposed; that in the Passbook as per Ex.P6 and P7 there are no corresponding debit entries relating to amounts mentioned in Ex.P2 and P3.
During cross-examination, PW.3 has admitted that one Ramachandra Jadhav used to collect the cheque books. Apart from this, nothing is elicited from PW.3. Therefore, from the evidence of PW.3, the prosecution has proved that 21 Ex.P2 and P3, cheque bearing No.0573115 dated 04.09.1999 and cheque bearing No.0573126 dated 31.07.1999 were not from the cheque books which were received in the office of KUWS&D. These cheques were not drawn by the Executive Engineer, KUWS&D in favour of Payees shown in Ex.P2 and Ex.P3. Thus, from the evidence of PW.3, it is clear that Ex.P2 and P3 were not the cheques drawn and issued by KUWS&D Board.
24. At this juncture, it is relevant to notice that these cheques (Ex.P2 and P3) are not 'account payee' cheques. The Payee in Ex.P2 is shown as Channabasappa Annappa Patil and the payee in Ex.P3 is shown as Kalyan Rathod. PW.10- Channabasappa Annappa Patil has denied that he was the payee under the Cheque (Ex.P3). He has denied that he had gone to Vijaya Bank and he had collected the amount under Ex.P3.
25. At the relevant period, PW.6- Suryakanth Bandeppa Biradar was working as the Executive Engineer of 22 KUWS&D Board, Gulbarga Division. His evidence is similar to evidence of PW.3. PW.6 has categorically denied that Ex.P2 and P3 (forged cheques) were drawn by him. PW.6 has denied that signatures found on Ex.P2 and P3 are his signatures. PW.6 has deposed that in Cheque Receipt Register maintained in the KUWS&D Board, Gulbarga Division, there is no reference to receipt of cheque book (Ex.P5). In the cheque drawn register marked as Ex.P-30 there are no entries relating to issuance of cheques as per Ex.P2 and P3. PW.6 has identified his specimen signatures which were seized under Ex.P37.
26. At this juncture, it is relevant to state that the prosecution has examined PW.7-Hirasingh Chandusingh Rathod to prove that Investigation officer-M.C.George had searched the house of accused on 31.01.2001 and seized the incriminating documents including specimen signatures of PW.6.
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27. The learned counsel for accused has not seriously disputed evidence of PW.6. The learned counsel for accused has contended that, the case of prosecution that house of accused was searched on 31.01.2001 looks suspicious in the background of extra-judicial confession statement (Ex.P13) said to have been made by the accused on 28.10.1999.
28. The learned counsel for accused would submit that, if the accused had made extra-judicial confession statement on 28.10.1999, it looks improbable that he would preserve the incriminating articles seized on 31.01.2001.
29. The evidence adduced by the prosecution in relation to search is given by PW.5-Hirasingh Chandusingh Rathod and investigation officer.
At the relevant time, PW.5- Hirasingh Chandusingh Rathod was working as the Assistant Director, Official Language Implementation in the office of General Manager, Telecom District, Gulbarga.
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30. PW.5 has deposed; that on 31.01.2011, the investigation officer along with his colleagues visited the house of accused to conduct search in the house of accused. PW.5 was one of the witnesses for search. After the list of search list of articles was prepared, he had affixed his signature on the Panchanama. PW.5 has identified the Search List prepared as per Ex.P34. At this juncture, it is relevant to state that PW.5 was holding responsible official position. He had no grievance or grudge against the accused. The evidence of PW.5 finds corroboration from the evidence of investigation officer namely PW.11-M.C.George relating to search and seizure of incriminating articles form the possession of accused.
31. It is true that the prosecution has contended that accused had given extra judicial confession statement (Ex.P13) on 28.10.1999 and the search was conducted on 31.01.2001. The submission made by the accused would not have retained incriminating evidence for having given confessional statement appears to be tenable at the first 25 blush; However, on careful analysis of evidence adduced by the prosecution, I find from the conduct of accused that, there are no reasons to suspect possession of these documents by the accused. The accused had given extra- judicial confession statement that he had misused the cheques in the presence of bank officials. As per extra- judicial confession statement given by the accused, accused had misappropriated and committed forgery and caused loss to the bank to the tune of Rs.43,67,000/- and he had repaid a sum of Rs.21,20,000/-.
32. The learned counsel for accused would submit that extra-judicial confession statement said to have been made in the presence of Senior Divisional Manager and other higher officials of the bank who were holding authority over the accused. Therefore, it cannot be accepted. The accused had not only made extra judicial confession statement but also he had acted upon such statement by repaying a sum of Rs.21,20,000/- at regular intervals from 15.11.1999 to 14.02.2000. Therefore, the conduct of accused would lend 26 ample corroboration to fortify the extra judicial confession statement made by the accused. The accused was the Special Assistant. The accused was the custodian of cheque books and other documents which were seized from the house of the accused. If the accused had destroyed these documents, he would have committed an offence of causing disappearance of evidence. If the accused had caused destruction of documents he would have created additional incriminating evidence.
33. In this background, evidence of PW.6 that Ex.P2 and P3 (Cheques) were not in possession of KUWS&D Board and they were not drawn by PW.6 would support the case of prosecution though PW.6 is not the Drawee of the cheques as per Ex.P2 and P3.
34. The cheque leaves are removed at random from the cheque book marked as Ex.P.12. PW.2-Branch Manager has deposed that contents of Cheques- Ex.P.2 and Ex.P.3 are in the handwriting of accused. PW.2 has deposed that in 27 pass books (Ex.P.6 and P.7) entries relating to withdrawal of amounts of Ex.P.2 and Ex.P.3 are not found. PW.2 has deposed that, in Token Issue Register (Ex.P.8) maintained by Vijaya Bank, Gulbarga, entry relating to cheque-Ex.P.2 is found at Ex.P.8(aa) and entry relating to cheque-Ex.P.3 is found at Ex.P.8(bb). The entries at Ex.P.8(aa) and Ex.P.8(bb) are in the handwriting of accused. The ledger extract of Current Account No.829 held by the Executive Engineer, KUWS & DB, for the period from 1.4.1999 to 15.10.1999 is marked as Ex.P.9. On the reverse side of Ex.P.9 accused has mentioned amount drawn corresponding to amount mentioned in cheque-Ex.P.3. There is no reference to cheque number in the entry; instead accused has entered as "self". The insertion is marked as Ex.P.9(aa). There are double entries in the Cheque Issuance Register. They are in the handwriting of accused.
In the Sub-Day Book for the period from 11.8.1999 to 28.10.1999 accused has inserted a sum of Rs.1,00,000/- in relation to Current Account No.829. If the transaction was 28 genuine, the sum of Rs.1,00,000/- should have been written in the next below line wherein a sum of Rs.75,472/- has been written.
35. PW.2 has deposed that on 28.10.1999 accused gave a letter-Ex.P.3 admitting his guilt that he had committed fraud and misappropriated amount to the tune of Rs.43,67,000/- and he had agreed to repay the said amount. In furtherance of Ex.P.13 accused has repaid a sum of Rs.21,20,000/- on different dates. PW.2 has identified credit vouchers relating to remittance of Rs.21,20,000/- as per Ex.P.14 to Ex.P.28. The amount paid by accused on different dates as per ex.P.14 to Ex.P.28 was received under Suspense Account.
During cross-examination it has been suggested to PW.2 that confession letter -Ex.P.13 was forcibly taken from accused threatening accused that if he does not confess he would be removed from service. PW.2 has volunteered, when accused gave Ex.P.13 advocate of accused was also present and extra-judicial confession of accused was prepared by the 29 advocate for accused. As already stated accused remitted a sum of Rs.21,20,000/- under Ex.P.14 to Ex.P.28 in furtherance of confession statement as per Ex.P.13. Therefore, conduct of accused and remittance of amount under credit vouchers Ex.p.14 to Ex.P.28 would lend corroboration to contents of confession letter Ex.P.13.
PW.2 has deposed that, complainant bank has also initiated proceedings before Debt Recovery Tribunal for recovering dues (misappropriated amount) from accused. During cross-examination, it was suggested to PW.2 that P.W.2 has colluded with other bank officials to foist a false case against accused. Therefore, they have taken a period of 1½ years to create false evidence against accused and to lodge a false complaint. PW.2 has denied these suggestions.
36. The learned Counsel for accused referring to evidence of PW.2 would submit that, there was inordinate delay in lodging first information. The bank officials have taken a period of 1½ years to lodge first information. The 30 accused is alleged to have misappropriated a sum of Rs.43,67,000/- as per Ex.P.13 and he has deposited Rs.21,20,000/- under Ex.P.14 to Ex.P.28. There is no investigation relating to misappropriation of entire sum of Rs.43,67,000/-.
37. It is true that there is no investigation regarding misappropriation of entire sum of Rs.43,67,000/- by accused by forging and falsifying accounts. The Court has to consider whether prosecution has adduced evidence to prove the investigation made by investigating agency. The part of fraud committed by accused was not investigated by investigating agency for the reasons not apparent on the records. But that cannot be a ground to discard evidence adduced by prosecution regarding forgery and fraud committed by accused which has been duly investigated. Therefore, submission of learned Counsel for accused cannot be accepted.
31
It is true that there was reluctance on the part of bank officials to set the law into motion immediately after they noticed forgery and falsification of accounts by accused and misappropriation of bank funds by accused. As could be seen from evidence of PW.2, soon after they noticed differences in the entries in the ledger and sub-day book were not tallying, they began probing the matter. The matter was immediately informed to the Regional Manager of the Bank. The vigilance squad of bank conducted enquiry. The accused made statement as per Ex.P.13 that he had misappropriated bank funds to the tune of Rs.43,67,000/- and he has repaid a sum of Rs.21,20,000/- under credit vouchers Ex.P.14 to Ex.P.28.
38. The bank had also initiated departmental enquiry against accused. The accused was dismissed from service. It looks probable that the bank was more interested in recovering amount misappropriated by accused. In fact accused had remitted a sum of Rs.21,20,000/- between 28.10.1999 and 14.02.2000. The first information was 32 registered by Police Inspector (CB) on credible information. The apathy shown by bank officials including the Regional Manager and Divisional Manager who had noticed the fraud played by accused cannot be a ground to discard evidence adduced by prosecution.
39. As could be seen from contents of first information, the same was registered on credible information which betrays that Manager of the Bank and senior officials of Bank who were well versed with norms of bank were not serious in setting the criminal law into motion. It looks probable that they wanted to square up the matter after recovering money from accused. If this trend is encouraged accused may take the risk of committing misappropriation of bank funds by playing fraud on bank and skulk away by repaying the amount misappropriated after the crime is detected. It is not a case where prosecution has concocted documents to foist a false case against accused. Therefore, delay in registration of first information has no consequence. 33
40. The evidence of PW.8-Kashinath who was working as Clerk in Vijaya Bank, Gulbarga Branch, is relevant and crucial. PW.8 was working as Clerk in Vijaya Bank, Gulbarga Branch, from August 1999 to January 2000. PW.8 was entrusted with Cash Branch. PW.8 has identified the cheque marked as Ex.P.2. PW.8 has deposed that when accused presented the cheque-Ex.P.2, PW.8 handed over cash of Rs.1,00,000/- mentioned in Ex.P.2 to accused because accused had misrepresented to PW.8 that customer was waiting for cash. PW.8 has deposed that, he paid cash of Rs.2,50,000/- to accused when accused presented cheque Ex.P.3, since accused had misrepresented to PW.8 that customer was waiting for cash.
At this juncture it is relevant to state that evidence of PW.8 about accused physically receiving cash of Rs.1,00,000/- on presentation of Ex.P.2 and a sum of Rs.2,50,000/- on presentation of Ex.P.3 to PW.8 has not been controverted.
34
41. The accused was working as Special Assistant. The accused had passed the cheques Ex.P.2 and Ex.P.3. The above cheques are alleged to have been drawn by Executive Engineer, KUWS & DB. In the normal course accused should have taken objections for bearer cheques being drawn by the Board of a Government Department, in favour of a private person as the cheques had originated from Government source. Thus, we find that accused had taken cheque book containing cheque leaves as per Ex.P.2 and Ex.P.3 by forging signature in the Cheque Issuing Register. The accused had kept cheque books containing cheque leaves which included Ex.P.2 and Ex.P.3 in his house. The accused had also taken specimen signatures of PW.6-Suryakanth Biradar, the then Executive Engineer, KUWS & DB to his house. These incriminating documents amongst others were seized when the Investigation Officer searched the house of accused on 31.01.2001.
42. As already stated, PW.5-Harish Chandusingh Rathod has given evidence in proof of search of house of 35 accused and seizure of documents and articles. His evidence does not suffer from any discrepancy. There are no reasons to discard evidence of PW.5.
43. Accused had passed cheques Ex.P.2 and P.3 after forging contents of cheque and signature of drawee. Accused had passed the cheques Ex.P.2 and P.3 in his capacity as Special Assistant. The accused had physically carried Ex.P.2 and Ex.P.3 to the cash counter. Accused has also made entries in Token Issue Register. Accused had physically presented Ex.P.2 and Ex.P.3 to PW.8 and collected cash from PW.8 on both occasions. The prosecution has proved that contents of Ex.P.2 and Ex.P.3 and signature of drawee are in the handwriting of accused. This is evident from evidence of witnesses who are acquainted with handwriting and signature of accused.
44. In addition, we have evidence of Handwriting Expert-PW.11, Inderkumar Arora. PW.11 has deposed that he had compared signature and handwriting found on 36 Ex.P.2 and Ex.P.3 with the admitted handwriting and signature of accused and came to the conclusion that signatures and contents found on Ex.P.2 and Ex.P.3 are in the handwriting of accused.
During cross-examination, it was suggested to PW.11 that without taking enlarged photographs of signature and handwriting, he cannot arrive at a proper conclusion regarding similarities and dissimilarities of disputed and admitted handwriting/signatures. PW.11 has deposed that he carried the examination by using various scientific instruments such as, lenses of different magnification, stereo microscope, angle poise lamp and other sophisticated instruments. In the circumstances, failure of PW.11 to take enlarged photographs of admitted and disputed signatures of accused cannot be a ground to discard evidence of PW.11.
45. Thus, to sum up, prosecution has proved that accused by misusing his official position as Special Assistant had taken cheque-book marked as Ex.P.12 to his house by 37 making an entry in the cheque-book issue register to make it appear that cheque book was issued to the Executive Engineer, KUWS & DB. From the said cheque book Ex.P.12 accused had removed two cheques Ex.P.2 and Ex.P.3 bearing Nos.0573115 and 0573126 respectively.
On 31.07.1999 accused himself had presented cheque bearing No.0573126, for Rs.2,50,000/- (Ex.P.3) by forging signature of Executive Engineer, KUWS & DB to make it appear the said cheque was drawn by Executive Engineer, KUWS & DB. The accused himself had passed the cheque Ex.P.3 bypassing the Bank Manager or Senior Manager of the Bank. Accused had collected cash of Rs.2,50,000/- from PW.8 on presentation of Ex.P.3 by making false representation to PW.8 that customer was waiting for payment.
Similarly, on 4.9.1999 accused himself had filled up contents of cheque bearing No.0573115 for Rs.1,00,000/- (Ex.P.2) by forging signature of account holder, viz., Executive Engineer, KUWS & DB. The accused himself had 38 passed the cheque Ex.P.2 bypassing the Bank Manager or Senior Manager of the Bank. Accused had collected cash of Rs.1,00,000/- from PW.8 on presentation of Ex.P.2 by making false representation to PW.8 that customer was waiting for payment.
46. When the accused was confronted with above acts of forgery and cheating noticed by bank officials, accused had confessed and given written statement as per Ex.P.13 admitting that he had committed fraud and misappropriated bank funds to the tune of Rs.43,67,000/-, and agreed to repay the said amount. Accused had made periodical remittances amounting to Rs.21,20,000/- under vouchers marked as Ex.P.14 to Ex.P.28, probably under the impression that he could avoid departmental inquiry and prosecution. The accused had removed and kept specimen signatures of Executive Engineer, KUWS & DB in his house. The accused had kept fake seal of Executive Engineer, KUWS & DB in his house.
39
47. The prosecution has examined PW.4- Neelkanth Biradar, who was running a Printing Press at Gajipur, Gulbarga, to prove that accused had approached PW.4 and accused got prepared rubber stamp (seal) of Executive Engineer, KUWS & DB, Gulbarga, from PW.4. PW.4 did not support the case of prosecution. But the fact remains that, seal of Executive Engineer, KUWS & DB, Gulbarga, was seized from possession of accused for which no explanation was offered by accused.
In the circumstances, the learned trial Judge was justified in convicting the accused for offences punishable under Sections 420, 468, 465 and 471 of IPC and also for offences punishable under Sections 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.
48. Spl.C.C.5/2001 was filed against accused for forging and fraudulently encashing three cheques bearing Nos.0439793 dated 25.3.1999 for Rs.65,000/-, Cheque No.0439786 dated 8.2.1999 for Rs.50,000/- and another 40 Cheque No.0573101 dated 17.7.1999 for Rs.50,000/- drawn in the name of Dattappa Devappa Patil. Accused is alleged to have forged signatures of Executive Engineer, KUWS & DB, Gulbarga, and committed the aforesaid offences. Accused was tried in Spl.CC.5/2001 and convicted for the alleged offences. As already stated, PW.1-K. Jayakar Shetty, General Manager, Vijaya Bank, Gulbarga, has given evidence relating to sanction accorded by him to prosecute the accused.
49. In the discussion made supra, I have assigned reasons for accepting evidence of PW.1 and also for accepting sanction order. There is no need to reiterate the same.
I have narrated evidence of PW.2-A.B.Nagarajappa, who was the then Branch Manager of Vijaya Bank, Gulbarga Branch, and also duties entrusted to accused and the modus operandi adopted by accused to forge cheques and encash forged cheques to make wrongful gain to himself and wrongful loss to Bank.
41
50. The then Branch Manager A.B.Nagarajappa has been examined as PW.2 in Spl.CC.5/2011. PW.2 has deposed that the Executive Engineer, KUWS & DB, Gulbarga, was holding two separate Current Accounts, namely, C.A.No.744 and C.A.No.829 with Vijaya Bank, Gulbarga Branch. PW.2 has deposed that, Ex.P.8- cheque bearing No.0439786 dated 8.2.1999 for Rs.50,000/- was drawn in favour of Dattappa Devappa Patil on C.A.No.744 held by the Executive Engineer, KUWS & DB, Gulbarga. Ex.P.9-cheque bearing No.0439793 dated 25.03.1999 for Rs.65,000/- was drawn in favour of Dattappa Devappa Patil on C.A.No.744. Ex.P.10- Cheque bearing No.0573101 dated 17.5.1999 for Rs.50,000/- was drawn in favour of Dattappa Devappa Patil on C.A.No.829 held by the Executive Engineer, KUWS & DB, Gulbarga.
PW.2 has deposed that these three cheques (Ex.P.8, Ex.P.9, Ex.P.10) were passed by accused. They bear the endorsement made by accused. The contents of Ex.P.8, Ex.P.9 and Ex.P.10 and signatures in Ex.P.8 to Ex.P.10 are 42 in the handwriting of accused. These cheques were entered in the Scroll Book by accused at Sl.Nos.44, 78 and 68. Accused had maintained parallel ledger sheet in Ex.P.6; there were no corresponding entries in the ledger sheets regularly maintained by the Bank. The original ledger does not contain entries relating to these cheques. The cheque book containing these cheque leaves was issued by accused under his signature. Accused has made entries in the Cheque Issuance Register to make it appear that cheques had been issued to the Executive Engineer, KUWS & DB. PW.2 has deposed that accused had signed Token Issue Register in relation to above cheques. Accused had maintained cash scroll as per Ex.P.16. The accused had made entries relating to cheques Ex.P.8, Ex.P.9 and Ex.P.10.
During cross-examination, it has been suggested to PW.2 that PW.2 and other bank officials had colluded to create false documents with a view to foist a false case against accused. The accused had made unsuccessful attempt to find fault with Executive Engineer, KUWS & DB 43 on the ground that the matter was not informed to police immediately and there was delay of 1½ years in information the matter to Police (CBI). The officials of KUWS & DB including Executive Engineer had no reasons to notice these fraudulent acts as the amounts realised by encashing Ex.P.8 to Ex.P.10 had not been debited in the pass book issued to KUWS & DB. Apart from this, there is nothing on record to discard evidence of PW.2.
51. The prosecution has examined PW.3-V. Chandrayya, Account Superintendent of KUWS & DB, Gulbarga. The evidence of PW.3 in Spl.CC.5/2001 is similar to his evidence in Spl.CC.4/2001, which has been discussed supra. PW.3 has deposed that, KUWS & DB had not received Cheque Book containing cheque leaves Ex.P.8, Ex.P.9 and Ex.P10. PW.3 has deposed that, they have maintained a Register for receipt of cheque books and also a Register for issue of cheques. These Registers do not contain relevant entries to indicate that cheque book containing cheque leaves Ex.P.8 to Ex.P.10 was received in the Office of 44 KUWS & DB. Similarly, there are no entries in Cheque Issue Register relating to issue of cheques Ex.P.8 to Ex.P.10. PW.3 has deposed that signatures found on Ex.P.8 to Ex.P.10 are not the signatures of the then Executive Engineer, KUWS & DB, namely PW.6, Suryakanth Biradar.
The cross-examination of PW.3 is inoccuous. The evidence of PW.3 that, cheque book containing cheque leaves Ex.P.8 to P.10 was not received in the office of KUWS & DB and signatures found on cheques (Ex.P.8 to 10) are not the signatures of Executive Engineer, KUWS & DB (PW.6), has not been controverted. The evidence of PW.3 that there are no corresponding entries in cheque issuance register maintained by KUWS & DB has not been controverted. On the other hand, it has been elicited from PW.3 that officials of KUWS & DB were deputing their peon, namely, Ramachandra Jadhav for bank work. It is the normal practice of government offices and other offices to depute peons to attend bank work. However, such a practice cannot be a ground to presume that a peon who had been 45 entrusted with bank work, had forged cheques and encashed forged cheques.
52. On verification of contents of Ex.P.8 to Ex.P.10 we find that cheques are drawn in the name of Dattappa Devappa Patil. The prosecution has examined Dattappa Devappa Patil as PW.4. PW.4 has deposed that, he was working as Physical Director in SP College. PW.4 knew accused and his brother Revanasiddappa Padashetty. Brother of accused was classmate of PW.4. PW.4 had not maintained any account in Vijaya Bank, Gulbarga Branch. PW.4 had no occasion to go over to Gulbarga for any work. On seeing forged cheques Ex.P.8 to Ex.P.10, PW.4 has deposed that said cheques bearing name of drawee as Dattappa Devappa Patil were never given to him nor he had encashed these cheques. PW.4 has denied signatures found on the obverse of Ex.P.8 to Ex.P.10 are his signatures.
During cross-examination, a suggestion was put that there were number of persons in the locality by name 46 Dattappa Devappa Patil. It is not in dispute that cheques Ex.P.8 to P.10 are in the name of Dattappa Devappa Patil. The prosecution has examined PW.4 to prove that Dattappa Devappa Patil had never received and encashed the cheques Ex.P.8 to Ex.p.10.
53. PW.6-Suryakanth Biradar, who was the then Executive Engineer, KUWS & DB, Gulbarga, has deposed that, signatures found on Ex.P.8 to Ex.P.10 are not his signatures. There is no entry in the Cheque Receipt Register regarding receipt of cheque book containing cheque leaves Ex.P.8 to Ex.P.10. There are no entries in the Cheque Issuance Register relating to issuance of cheques Ex.P.8 to Ex.P.10 by Executive Engineer, KUWS & DB.
During cross-examination, nothing is elicited from PW.6 to discard his evidence.
54. As already stated, PW.7-Harisingh Rathod, was present when the house of accused was searched and incriminating documents were seized. In the discussion 47 made supra, I have assigned reasons for accepting evidence of PW.7.
55. PW.8-Smt.S. Shivakumari, has deposed that at the relevant time she was working as Clerk in Vijaya Bank, Gulbarga Branch. The accused was also working in the same branch. PW.8 has deposed about presentation and encashment of cheques by the accused. PW.8 has deposed that, she has made endorsement on backside of Ex.P.8 for issuing token. The entries in the Token Issuance Register are in the handwriting of accused. PW.8 has deposed that in the Token Issuance Register, token numbers relating to Ex.P.8 to Ex.P.10 are in the handwriting of accused. Similarly, in the Token Issuance Register entries relating issuance of token in relation to Ex.P.8 to Ex.P.10 are in the handwriting of accused.
During cross-examination by the learned Counsel for accused, evidence of PW.8 that entries relating to tokens issued in relation to Ex.P.8 to Ex.P.10 in the Token Issue Register are in the handwriting of accused has not been 48 denied. Therefore, prosecution has proved that accused had collected cash on presentation of cheques Ex.P.8 to Ex.P.10. The aforesaid cheques Ex.P.8 to Ex.P.10 are forged to make it appear Ex.P.8 to Ex.P.10 were drawn by Executive Engineer, KUWS & DB, in favour of PW.4 Dattappa Devappa Patil.
56. In view of evidence of PW.6 that signatures found on Ex.P.8 to Ex.P.10 are not the signatures of PW.6, and cheque book containing cheques leaves Ex.P.8 to Ex.P.10 was never received in the office of KUWS & DB and that PW.6 had not issued said cheques, I hold that these cheques Ex.P.8 to Ex.P.10 were forged and passed by accused and the accused had encashed Ex.P.8 to Ex.P.10.
57. PW.9-N. Janardanrao, has given evidence in proof of extra-judicial confession - Ex.P.13 made by accused. In the discussion made supra, I have assigned reasons for accepting contents of Ex.P.13. Therefore, there is no need to reiterate the same.
49
58. PW.10-Inderkumar Arora, Handwriting Expert has deposed that he had compared admitted signatures and handwriting of accused with contents and signatures found on Ex.P.8 to Ex.P.10 and came to the conclusion that contents of Ex.P.8 to Ex.P.10 and signatures found in Ex.P.8 to Ex.P.10 are in the handwriting of accused.
During cross-examination of PW.10 it was suggested to PW.10 that, without obtaining enlarged photographs of admitted and disputed signatures, the similarities and dissimilarities cannot be noticed. PW.10 has deposed that he had carried out examination by using various scientific instruments, such as, magnifying lenses, stereo microscope, angle poise lamp and other sophisticated instruments of different magnification. The failure of PW.10 to have enlarged photographs of admitted and disputed signatures cannot be a ground to discard his evidence.
59. At this juncture, it is relevant to notice, the house of accused was searched by the Investigation Officer 50 on 31.01.2001. The Investigation Officer had prepared search list. The search list contains description of documents and articles seized from the house of accused. Sl.No.8 of search list shows that cheque book containing cheque leaves Ex.P.8 to Ex.P.10 was found in possession of accused. As already stated, the Executive Engineer and Accounts Superintendent of KUWS & DB have deposed that they had never received cheque book containing cheque leaves Ex.P.8 to Ex.P.10 in their office. They had not issued alleged cheque leaves. The accused failed to explain circumstances and possession of these incriminating documents.
60. In the discussion made supra, I have assigned reasons for accepting evidence in proof of search and seizure of incriminating documents and articles from the house of accused. Thus, to sum up, the prosecution has proved that accused had removed cheque books from the bank. The accused had kept the cheque books in his house and forged cheque leaves Ex.P.8 to Ex.P.10. The accused had forged 51 signatures of Executive Engineer, KUWS & DB on cheque leaves Ex.P.8 to Ex.P.10 and also contents of Ex.P.8 to Ex.P.10. The Cheque Book containing cheque leaves Ex.P.8 to Ex.P.10 had been taken by accused and he had made entries in cheque issue register to make it appear that above cheque book was issued to the Executive Engineer, KUWS & DB. Accused had passed cheques Ex.P.8 to Ex.P.10 on his own without bringing to notice of Executive Engineer, as bearer cheques had been on the current account of KUWS & DB. PW.4-Dattappa Devappa Patil had deposed that he was unconcerned with cheques Ex.P.8 to Ex.P.10 and he had denied for having signed on the backside of Ex.P.8 to Ex.P.10. PW.4 has deposed that and he had not encashed aforesaid cheques (Ex.P.8 to Ex.P.10).
The accused was found in possession of Cheque Book containing cheque leaves Ex.P.8 to Ex.P.10 and he was also in possession of specimen signatures of Executive Engineer, KUWS & DB. Accused has admitted that he had 52 misappropriated bank fund to the tune of Rs.43,67,000/- and he has repaid a sum of Rs.21,20,000/-.
61. On comparison of admitted handwriting and signature of accused and contents of Ex.P.8 to Ex.P.10 and signatures found in Ex.P.8 to Ex.P.10, the Handwriting Expert (PW.10) has opined that contents of Ex.P.8 to Ex.P.10 and signatures found in Ex.P.8 to Ex.P.10 are in the handwriting of accused. The learned trial Judge on proper appreciation of evidence has held accused guilty offences alleged against him.
62. In Spl.(CBI) C.C. Nos.6/2005 and 7/2001, accused was tried for forging five cheques, the details of which are as follows:
Cheque In favour Payable
Date Amount
No. of date
0951913 3/7/98 30,000 Shivaji 3/7/98
0951914 11/7/98 40,000 C.S.Patil 11/7/98
0951849 6/5/98 30,000 Self 6/5/98
0951906 26/5/98 30,000 Self 27/5/98
0951917 1/8/98 30,000 Shantappa 1/9/98
53
63. In these cases, prosecution has relied on the common evidence given by PW.1/K.JayakarShetty (Sanction ing Au thority), PW.2/A.B.Nagarajappa (Branch Manager, Vijaya Bank, Gulb arg a Br anch), PW-4/Hirasingh (witness for the search conducted in the house of accused on 31.01.2001), PW.5/Smt.S.Shivakumari, who at the relevant time was working as a Clerk in Vijaya Bank, Gulbarga Branch, PW-6/N.JanardhanRao, who at the relevant time was working as an Assistant Bank Manager, Vijaya Bank, Gulbarga, PW-7/Inderkumar Arora, hand-writing expert and the evidence of Investigating Officer PW.8/M.C.George.
64. While discussing evidence adduced in Spl.(CBI)C.C. Nos.4/2001 and 5/2001, I have assigned reasons for accepting the sanction accorded by PW-1 and evidence of PW-1 in proof of sanction given to prosecute the accused. 54
65. PW-2/A.B. Nagarajappa apart from giving evidence relating to duties entrusted to accused and procedure for passing the cheques has deposed:
Jayakumar M.Madagi (ex amined as PW-3 in Spl.(CB I) C.C. Nos.6/2001 and 7/2001) was having Overdraft facility in Vijaya Bank, Gulbarga Branch, to the limit of Rs.3,00,000/- under O.D. Account Nos.18/96 and 14/98 and on 27.02.1998, the Regional Office of Vijaya Bank, Belgaum Branch, enhanced the overdraft limit from Rs.3,00,000/- to Rs.5,00,000/- in O.D. Account No.14/98. The accused had maintained parallel ledger sheets as per Ex.P-3 which commences from 26.05.1998 to 06.02.1999.
66. The original ledgers (Ex.P-4) maintained by the Bank commences from 26.05.1998 to 10.02.1999. PW.2 has deposed that cheque bearing No.0951913 dated 03.07.1998 was drawn for a sum 55 of Rs.30,000/- favouring one Mr.Shivaji on O.D. Account No.14/98, the account holder of which is PW.3/Jayakumar. The contents of cheque bearing No.0951913 such as name of payee, name of account holder, amount in figures and words, account number, are in the hand-writing of accused. The cheque bearing No.0951913 is marked as Ex.P-5. The accused has put the seal "Pay Cash" and has affixed his signature and entered the same at column No.46. Since the above cheque was for more than Rs.25,000/-, PW-2 has counter-signed the same. PW.2 has identified the cheque marked as Ex.P-6 (bearing No.0951914) dated 11.07.1998 for a sum of Rs.40,000/- favouring Sri.C.S. Patil pertaining to O.D. Account No.14/1998 of which PW-3 is the account holder. The contents of cheque such as name of the payee and account holder, amount in figures and words, account number, are in the hand-writing of 56 accused. The accused has affixed the seal "Pay Cash" and put his signature and has entered the same in Column No.36. As the above cheque was for more than Rs.25,000/-, PW-2 has countersigned the cheque. PW.2 has deposed that these two cheques were encashed at the counter. PW-2 has deposed that the Cash Scroll Book was maintained by accused (Special Assistant). The accused had made entries in relation to the cheque marked as Ex.P-6. The cheque-book containing cheque leaves from 0951901 to 0951950 is marked as Ex.P-9. It contains unused cheque leaves and one cheque book requisition slip. In the Token Issue Register for the period between 02.05.1998 to 04.08.1998 (marked as Ex.P-10), accused had entered the token number corresponding to cheque Ex.P-5. He had made similar entries in the ledger register. The accused had made entries in the Cheque-book Issue Register maintained for the period from 17.10.1996 57 to 24.10.1999. The relevant page (p age No.59) is marked as Ex.P-11. In the Cheque-book Issue Register, there are two entries on 11.04.1998 and 13.04.1998. The said entries relate to Ex.P-9 (cheque book), which was in the custody of accused himself.
67. PW-2 has deposed that cheque book should be issued to parties in serial number-wise. As per the entries in Ex.P-11(a) (Cheque-book Issue Regis ter), accused had issued cheque books containing cheque leaves bearing Nos.0951801 to 0951850 and entries made on 13.04.1998 relate to the cheque book leaves bearing No.0951851 to 0951950. These two cheque books containing 100 cheque leaves pertain to O.D. Account No.18/96, of which the account holder was PW-3/Jayakumar.
68. PW.2 has deposed that, every Friday there used to be inspection of reports by Regional Officer, 58 Belgaum. On verification of the statements, PW-2 found that the balance shown in Current Account was a sum of Rs.15,00,000/-. He noticed certain discrepancies and there was shortage of Rs.38,00,000/-. The matter was reported to Regional Office, which in turn conveyed the information to Head Office, Belgaum. The officials of Head Office came and searched the drawer of accused and found some ledger sheets of the Bank. The accused had maintained parallel ledger sheets. The accused was suspended in the month of November 1999. On 28.10.1999, accused gave a letter admitting the fraud committed by him and agreed to repay a sum of Rs.43.67 lakhs misappropriated by him. In furtherance of his promise, accused remitted a sum of Rs.21.20 lakhs on different dates under vouchers marked as Exs.P- 12 to 26. The amount remitted by accused was taken under suspense account.
59
69. In Spl.(CBI) C.C. No.7/2001, PW.2 / A.B.Nagarajappa (Br anch M anager), has deposed that the cheque bearing No.0951849 dated 06.05.1998 for a sum of Rs.30,000/- favoring self (self-cheque), which pertains to O.D. Account No.18/96 of which PW-3/Jayakumar was the account holder. The accused had written the contents of cheque such as, name of the payee, name of account holder, amount in figures and words. The accused had forged the signature of account holder (PW.3 Jayakumar). The accused had put seal "Pay Cash" and has affixed his signatures. As the amount was more than Rs.25,000/-, PW-2 had countersigned the cheque. PW-2 has identified the cheque as Ex.P-5. PW.4 has given similar evidence in relation to Ex.P-6 cheque bearing No.0951906 dated 26.05.1998 drawn for a sum of Rs.40,000/- favouring self (self-cheque). 60
PW-2 has deposed that contents of cheque bearing No.0951917 dated 01.08.1998 for a sum of Rs.30,000/- in favour of one Shantappa are in the hand-writing of accused. The accused had filled up the contents of cheque. The accused had forged signature of account holder (PW.3 Jayakumar). The accused had put the seal "Pay Cash" and affixed his signature. Since the value of cheque was exceeding Rs.20,000/-, PW-2 had counter-signed the cheque. The above cheques were encashed at the cash counter. The accused had written the contents of Token Register corresponding to above cheques. PW.2 has identified the signatures of accused in the Token Register marked as Ex.P-8.
PW-2 has deposed about the contents of ledger sheets corresponding to O.D. Accounts bearing Nos.14/98 and 18/96. The accused had maintained parallel ledger sheets in relation to the above said accounts. The Cheque Issue Register for the period 61 between 17.10.1996 to 24.10.1999 marked as Ex.P- 11 was in the custody of accused. The accused had issued the cheque books containing afore-stated cheque leaves, contrary to the normal practice of the Bank of issuing cheque books in serial number- wise.
70. During cross-examination, it was suggested to PW-2 that he had counter-signed the cheques and passed the afore-stated cheques because they were genuine. PW-2 has deposed that in good faith he had countersigned the cheques because they bore the signature of accused and seal put by accused (Special Assis tan t).
71. On perusal of Ex.P-3, the ledger folio relating to O.D. Account No.18/1996 of PW- 3/Jayakumar, we find that the entries made at Serial No.8 on 02.05.1998, the cheque number is left blank. In the column for particulars, it is 62 shown as ' to self - by clear ing' and the amount debited is a sum of Rs.30,000/-. PW-2 has deposed that the ledger folio was maintained by the accused.
Similarly, in the Token Register marked as Ex.P-8, the accused had made entries as per Ex.P.8 showing O.D. Account No.14/98 and cheque bearing No.0951917 and the cheque is stated as self (self- cheque).
72. The accused has not disputed that he had made these entries. Thus, we find that accused has forged the contents of afore-stated cheques and he has passed the cheques in the capacity of a Special Assistant of the Bank.
73. PW-3/Jayakumar M.Madagi was the account holder of O.D. Nos.16/96 and 14/98 in Vijaya Bank, Gulbarga Branch, from 1996 to 1998. PW-3 has deposed that he had not received the cheque book containing cheque leaves bearing 63 No.0951901 to 0951950. PW-3 has deposed that Ex.P-5 (cheque bear ing No.0951849) in respect of O.D. Account No.18/96 was not drawn by him. The signature found in Ex.P-5 is not his signature. The contents of cheque are not in his hand-writing. PW.3 has deposed that Ex.P-6 (cheque bearing No.0951906) pertaining to O.D. Account No.18/96 was not drawn by him. The signature found on the cheque and the contents of cheque are not in his hand-writing. He had never issued the afore-stated cheques. PW-3 has deposed that Ex.P-7 (cheque bear ing No.0951917) pertaining to O.D. Account No.14/98 was not issued by him and the signature found therein and contents of cheque are not in the hand-writing of PW-3. He had never issued the said cheque leaf on his O.D. Account. He does not know Shanthappa in whose favour Ex.P-7 was drawn.
PW-3 has deposed that accused was working in Vijaya Bank, Gulbarga Branch. After seeing Cheque 64 Issue Register (Ex.P-11), PW.2 has deposed that cheque book containing cheque leaves bearing Nos.0951851 to 0951950 was not issued to him. But, those cheques were issued in favour of one Bhimashankar. He had not received the cheque leaves bearing Nos.0951901 to 0951950.
PW-3 has deposed that cheque leaf bearing No.0951914 pertaining to O.D. Account No.14/98 (Ex.P-6) was not drawn by him. The signature found therein and contents of cheque are not in the hand-writing of PW-3. He had not drawn the cheque on his O.D. Account. He does not know one Sri.C.S.Patil, in whose name the said cheque Ex.P-6 was drawn. PW.3 has identified his specimen signature as per Exs.P-30 and 30(a). During cross- examination, the evidence of PW-3 that the afore- stated cheques were not drawn by him; the contents of afore-stated cheques are not in his hand-writing and he had not issued the afore-stated cheques in 65 the name of persons named as payees, has not been controverted.
74. PW-4/Hirasingh has given evidence relating to the search conducted in the house of accused on 31.01.2001. In the discussion made supr a, I have assigned reasons for accepting his evidence.
75. Ex.P-9, the cheque book containing cheque leaves bearing Nos.0951901 to 0951950, was one of the items seized at the time of search of the house of accused on 31.01.2001. In the search list, the cheque book (Ex.P-9) containing cheque leaves bearing Nos.0951901 to 0951950 is found at Item No.5.
76. Thus, the prosecution has proved that accused was in possession of cheque book containing the afore-stated cheque leaves, out of which, the afore-stated cheque leaves were forged 66 and encashed by the accused. The accused has not explained the circumstances under which he came to be in possession of the afore-stated cheque books, which according to Cheque Issue Register written by accused, was issued to PW-3.
77. PW-7/Inderkumar, hand-writing expert, has deposed that he had compared admitted handwriting and signatures of accused and signatures found in the afore-stated cheques and contents of cheques bearing Nos.0951849, 0951906, 0951913, 0951914, 0951917 ( wh ich are dr awn on O.D. Account Nos.18/96 & 14/98) 043793, 0439786, 0573101, 0573115, 0573126 ( wh ich are dr awn on Current Account Nos.744 and 829) and signatures found therein are in the hand-writing of accused. As already stated, during cross-examination of PW- 7, apart from suggesting that unless the enlarged photographs of disputed and admitted hand-writing are taken, the similarities and dissimilarities 67 cannot be made out, nothing is elicited to discard evidence of PW.7. PW-7 has stated that he had carried out the work of comparison by using lenses of different magnification. Therefore there was no need to take enlarged photographs of disputed and admitted handwriting.
78. The evidence in relation to the investigation of above cases is given by PW-8. The evidence of PW-8 in Spl.(CBI) C.C. Nos.4 to 7 of 2011 is almost identical but for the reference to documents. The main incriminating circumstances brought on record through PW-8 is the search and seizure of incriminating documents from the house of accused. PW-8 has deposed that on 31.01.2001, he conducted search in the house of accused under Section 93 of Cr.P.C. and 16 documents were seized from the house of accused under search list. The search was conducted in the presence of independent witnesses namely H.C.Rathod 68 (examined as PW-4 in C.C. Nos.6 and 7 of 2001, examined as PW-7 in C.C. Nos.4 and 5 of 2001). PW-8 has deposed that he had obtained specimen signatures and handwritings of accused and also the account holders. He had sent the admitted signatures and handwritings of accused and account holders along with disputed contents and signatures found on the forged cheques and related documents to hand-writing expert. PW.8 had received the opinion from handwriting expert. During cross-examination of PW-8, nothing has been elicited to discard his evidence.
79. Thus, prosecution has proved that the accused had forged the afore-stated cheques which were drawn on the O.D. Accounts held by PW- 3/Jayakumar. The accused passed the cheques, some of them as self-cheques and some of them drawn in favour of fictitious persons. The accused had made entries in cheque issue register to make it 69 appear that the above cheques were issued to PW-3 and he had retained the cheque books. The accused had retained the cheque books with him.
80. PW-3 has categorically denied the suggestion that he had received the cheque books and he has denied that he had issued the afore- stated cheques.
81. The evidence given by afore-stated witnesses is with reference to documents maintained in the Bank. The afore-stated witnesses did not bear enmity with accused to falsely implicate him. On the other hand, the accused had made confession statement (Ex.P-33/or igin al Ex.P-
13) and remitted a sum of Rs.21.20 lakhs against the admitted misappropriated sum of Rs.43.67 lakhs. The departmental enquiry was held against accused and he was dismissed from service and the order of dismissal from service has attained finality. 70 The accused has remitted a sum of Rs.21.20 lakhs at regular intervals probably with a hope to escape from the clutches of law. It is true that there was reluctance on the part of the Bank to report the matter to police forth-with. It appears that the officials of Bank were more interested in recovering the amount. The accused has not explained the possession of incriminating documents which are detailed as per Ex.P-31 under which the following incriminating documents/articles were seized:-
(1) A bunch of 8 ledger sheets of Vijaya Bank in r/o C.A. No.504, 412, 9/97, 18/96 & 14/98.
(2) Letter pad of Vijaya Bank (6-74) pages 01 to 97.
(3) One rubber stamp "Executive Engineer, KUWS&D Board Division, Gulbarga" broken and fixed with the holder with the solution.
(4) A cheque book in r/o OD A/c No.16/98, of Vijaya Bank in f/o. S.S.Padasetty having printed No.0326851 to 0326875 containing 13 blank cheques.71
(5) A cheque book in r/o. A/c. No.18/96 of Vijaya Bank with printed Nos. from 0951901 to 0951950 containing 09 blank cheques.
(6) A cheque book of Vijaya Bank with Sl.Nos. from 0573101 to 0573200 containing 81 blank cheques without any A/c. No. (7) One cheque book of Vijaya Bank in r/o. C.A. No.786 with printed Nos.0439001 to 0439025, containing 23 blank cheques.
(8) Cheque book of Vijaya Bank in r/o.
C.A. No.744, with printed Nos.0439776 to 0439800 containing three blank cheques and two filled up cheques in f/o. Jayakumar Madagi for Rs.2,50,000/- and Rs.1,00,000/- respectively.
(9) One cheque book of Vijaya Bank Gulbarga Branch in r/o. A/c.
No.2034 in f/o. S.S. Padasetty containing 23 blank cheques.
(10) One service record book of S.S.Padasetty containing pages 1 to 132 with writings on some pages. (11) One personal file of Sri.S.S.Padasetty containing pages 1 to 222.72
(12) One folder containing various correspondence of Sri.S.S.Padsetty containing pages 01 to 78.
82. Thus, on re-appreciation of evidence, I find that prosecution has proved beyond reasonable doubt that accused had forged the cheques, for which purpose he had clandestinely taken the cheque books from the bank to his house in advance. The accused had also taken the specimen signatures of one of the account holders namely Executive Engineer of KUWS&DB to his house. He was also in possession of fake seal of Executive Engineer of KUWS&DB. The accused had not only forged cheques, but also he had passed cheques in his official capacity as Special Assistant.
The accused had gone to the cash counter to receive amount in relation to two of the forged cheques drawn on the account of Executive Engineer, KUWS&DB. The accused had encashed the remaining forged cheques from cash counter. The 73 accused had given a letter making an extra-judicial confession before the Bank officials. The accused had remitted a sum of Rs.21.20 lakhs at regular intervals probably under the impression that he could get away from the clutches of law by remitting the loss (misappropriated money) to the Bank. When examined under Section 313 Cr.P.C., accused was questioned about the statement given by him (Ex.P-13, question No.107), accused has stated that he had not given any voluntary statement. The General Manager and other officials threatened that they would lodge a police complaint. Therefore, he had given the statement. The accused sold his properties to repay the money. After examination under Section 313 of Cr.P.C., that accused had produced copies of sale deeds to show that he had sold his properties and repaid the entire money alleged to have been misappropriated by him. Thus, it can safely be inferred that the accused was under 74
the impression that by remitting the amount he could get away from the clutches of law. In the circumstances, the contention of accused that he was forced to write a letter (Ex.P-13--Ex tr a Judic ial conf ession) under threat or coercion cannot be accepted because, accused had partly acted upon the contents of the letter marked as Ex.P-13.
83. The prosecution has proved the offences alleged against accused beyond reasonable doubt.
The defence of accused that he had written the letter(Ex.P-13) and remitted a sum of 21.20 lakhs under threat and coercion cannot be accepted.
84. It appears, the accused was under the impression that he could escape from the clutches of law by remitting a sum of 21.20 lakhs to the bank. Thus, on re-appreciation of evidence, I do not find any reasons to interfere with the impugned judgments of conviction.
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85. The learned counsel for accused would submit that without prejudice to the contentions of accused on merits of the case, the learned trial Judge should have ordered that the substantive sentence of imprisonment imposed on accused to run concurrently.
86. The learned counsel for accused has relied on a Judgment of the Supreme Court reported in CDJ 2013 SC 568 (In the c ase of V.K.BANSAL vs. ST AT E OF HARYHANA AND OT HERS), wherein the Supreme Court has held that power under Section 427 of Cr.P.C. should not mechanically be exercised. It should be supported by reasons. It is also held that provisions of Section 427 of Cr.P.C. do not permit a direction for concurrent running of sentence imposed in default of payment of fine or compensation.
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87. In a decision reported in 1996 Crl.L.J. 1296 (In the case of ST AT E OF GUJARAT Vs. ZAVERBHAI KABABHAI), the High Court of Gujarat has held that the discretion under Section 427 of Cr.P.C. has to be exercised judiciously having regard to facts and circumstances of the case.
88. In the case on hand, accused was working as a Special Assistant in Vijaya Bank, Gulbarga Branch. In the first place, he had misused his official position for pecuniary gain and committed offences under Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of the Prevention of Corrup tion Act.
89. The accused had committed forgery of cheques of account holders and committed an offence punishable under Section 420 of IPC. The accused has used the forged cheques as genuine cheques to withdraw money from the Bank. 77
90. In C.C. No.4/2001, learned trial Judge has sentenced the accused to undergo rigorous imprisonment for four years and pay a fine of Rs.3,000/- and in default to undergo simple imprisonment for three months for an offence punishable under Section 420 IPC.
The accused has been sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.3,000/- and in default to undergo simple imprisonment for three months for an offence punishable under Section 468 IPC.
The accused has been sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.3,000/- and in default to undergo simple imprisonment for three months for an offence punishable under Section 471 IPC. 78
The accused has been sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.3,000/- and in default to undergo simple imprisonment for three months for offences punishable under Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of th e Preven tion of Corruption Ac t, 1988.
91. The learned Judge has imposed similar sentence in C.C. Nos.5/2001, 6/2001 and 7/2001. The learned trial Judge has ordered that the substantive sentence imposed in each of the cases shall run concurrently.
92. The Special Judge, having regard to the pronouncement of separate judgments in Spl.(CBI) C.C. Nos.5 to 7 of 2001, has not stated whether the substantive sentences imposed in Spl.CC.4/2001 to Spl.CC.7/2001 shall run concurrently or consecutively.
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93. As already stated, discretion under Section 427 of Cr.P.C. has to be exercised judiciously having regard to facts and circumstances of the case. The accused is now aged about 67 years. The accused has remitted a sum of Rs.21.20 lakhs. The bank had initiated recovery proceedings before the Debt Recovery Tribunal to recover the remaining sum from the accused. In the departmental enquiry, accused has been dismissed from service and the order of dismissal has attained finality. The accused has become self-sufficiently old and infirm. The accused has suffered trauma of trial and post conviction trauma during pendancy of these appeals. Therefore, I pass the following:-
ORDER
(i) The appeals are accepted in part;
(ii) The impugned judgments of
conviction of accused for offences
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punishable under Sections 420, 468,
465 and 471 of IPC and for offences
punishable under Sections 13(1)(c)
and 13(1)(d) read with Section 13(2)
of the Prevention of Corruption Act,
1988, are confirmed;
(iii) The sentence imposed for afore-
stated offences in terms of the
impugned judgments is confirmed.
However, it is ordered that the
substantive sentences of
imprisonment imposed in Spl.(CBI)
C.C. Nos.4/2001, 5/2001, 6/2001
and 7/2001 shall run concurrently;
(iv) The impugned judgments, as they
relate to fine and default sentence
are confirmed.
SD/-
JUDGE
PNP/SUB/RK/-