Bangalore District Court
Central Bureau Of Investigation vs Sri.Hirachand S.Tukol on 11 February, 2016
IN THE COURT OF THE XLVII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE FOR
C.B.I. CASES (CCH-48), BENGALURU.
Dated this the 11th day of February 2016
Present: SRI.ASWATHA NARAYANA, B.Sc., LL.M.,
XLVII Additional City Civil & Sessions Judge
& Special Judge for CBI Cases, Bengaluru.
SPECIAL CRIMINAL CASE No.44/2002
COMPLAINANT: Central Bureau of Investigation,
Represented by the Deputy
Superintendent of Police,
Anti Corruption Branch,
Ganganagara,
Bengaluru.
(By Smt.K.S.Hema, Public Prosecutor.)
-Vs-
ACCUSED-1: Sri.Hirachand S.Tukol,
S/o. Sri.S.P.Tukol,
Ex-Manager,
Andhra Bank,
Bengaluru.
(By Sri.B.J.Prakash Singh &
Sri.R.Vidya Sagar, Advocates.)
ACCUSED-2: Sri.Ashok J.Gongade,
S/o.Late Jayapalappa,
R/o.Ugargol Village,
Saudatti Taluk,
Belgaum.
(By Sri.S.G.Bhagavan, Advocate.)
2 [Spl.C.C.44/2002-J]
ACCUSED-3: Sri.B.Padmanabha Bhat,
S/o.Sri.Upendra Bhat,
SLV Temple, Brahmavara,
South Canara-576 213.
(By Sri.B.Shankar Bhat, Advocate.)
1. Nature of Offence: Offence punishable under
Sections 120-B r/w. 420 of the
Indian Penal Code, 1860,
Sections 5(2) r/w. 5(1)(d) of
the Prevention of Corruption
Act, 1947 and Sections 13(2)
r/w.13(1)(d) of the Prevention
of Corruption Act, 1988.
2. Date of Commission of
Offence: In between 1980 and 1984.
3. Date of First Information
Report: 25.09.1986.
4. Date of Arrest of the
Accused: Not arrested.
5. Date of Commencement of
Evidence: 05.05.2014.
6. Date of Closure of Evidence: 20.11.2015.
7. Date of Pronouncement of
Judgment: 11.02.2016.
8. Result of the Case : Acquitted.
(ASWATHA NARAYANA)
XLVII Additional City Civil & Sessions Judge
& Special Judge for CBI Cases,
Bengaluru.
-o0o-
3 [Spl.C.C.44/2002-J]
JUDGMENT
This case is filed by the Complainant alleging that, the Accused-1 while working as a Public Servant in the capacity of Manager of Andhra Bank, Chamarajpet Branch, Bengaluru (for short, 'the Bank') during the period from 1980 to 1984, entered into Criminal Conspiracy with the Accused-2 and 3 to Cheat the Bank and that, in furtherance of that Criminal Conspiracy, the Accused-1 started private textile business in the trade name of 'M/s.Vijetha Textiles' at No.123, Sampige Road, Malleshwaram, Bengaluru-3 on 26.11.1982 by making the Accused-2 and C.W.1-Sri.Shanthilal Mutha as name sake partners of M/s.Vijetha Textiles and that by employing the Accused-3 to assist the Accused-2 in the banking transactions of M/s.Vijetha Textiles; by abusing his official position as Manager of the Bank, the Accused-1 granted Temporary Over Draft and Cheque Discounting facilities in the Current Account No.355 unauthorisedly and recklessly and that many of the Cheques discounted were bounced back and that Cheque amounts were adjusted by debiting the Current Account of M/s.Vijetha Textiles resulting in creation of Temporary Over Draft several times; the Accused-2 issued a Blank Accommodation Cheque relating to his personal S.B.Account No.350 at Malaprabha Grameena Bank, Ugargol Branch, for the use of the Accused-1; the Accused-3 filled up that Cheque on 27.07.1983 for Rs.92,500/- in favour of M/s.Vijetha Textiles and presented the same to the Bank; the Accused-1 4 [Spl.C.C.44/2002-J] purchased the said Cheque on behalf of the Bank unauthorisedly though he had no power; the Accused-3 withdrawn the said Cheque amount; the said Cheque so purchased was dishonoured twice, which resulted in Wrongful Loss to the Bank to the tune of Rs.1,14,214.60(Rs.92,500/- + Interest) and corresponding Wrongful Gain to the Accused-1 to 3 and that thereby, the Accused-1 to 3 have committed an offence punishable under Sections 120-B r/w. 420 of the Indian Penal Code, 1860 (for short, 'the IPC') and Sections 5(2) r/w. 5(1)(d) of the Prevention of Corruption Act, 1947 (for short, 'the Act') and Sections 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'the 1988 Act'), the Accused-1 to 3 have committed an offence punishable under Section 420 of the IPC and the Accused-1 has committed an offence punishable under Section 5(2) r/w. Section 5(1)(d) of the Act and Sections 13(2) r/w. 13(1)(d) of the 1988 Act.
2. On 08.02.2002, after taking cognizance, the then Presiding Officer of this Court issued Summons to the Accused-1 to 3. After appearance of the Accused-1 to 3, Copies of Charge Sheet and other documents relied upon by the Complainant were furnished to them. On 24.08.2005, after hearing both the sides before framing Charge, the then Presiding Officer of this Court framed Charge against the Accused-1 to 3 for the offence punishable under Section 120-B r/w. Section 420 of the IPC and Sections 5(2) r/w. 5(1)(d) of the Act and also for 5 [Spl.C.C.44/2002-J] the offence punishable under Section 420 of the IPC and against the Accused-1 for the offence punishable under Section 5(2) r/w. Section 5(1)(d) of the Act only. The same was read over and explained to them. The Accused- 1 to 3 pleaded not guilty to the same and claimed to be tried.
3. During trial, the Complainant got examined 14 Witnesses as P.W.1 to P.W.14 and got marked 66 Documents as Ex.P.1 to Ex.P.66 on his behalf. With that evidence, the Complainant closed his side.
4. On examination of the Accused under Section 313 of Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.'), the Accused-1 to 3 did not admit the incriminating evidence appearing against them. During such examination, the Accused-2 produced Certified Copies of Plaint, Judgment and Decree in O.S. No.3317/1986 filed on the file of XXIX Additional City Civil Judge, Bengaluru. The Accused-1 and 2 have also filed their Written Statement.
5. After hearing both the sides, as this Court found that it is not a case for acquittal under Section 232 of the Cr.P.C., the Court called the Accused-1 to 3 to adduce Defence Evidence if any. But, the Accused-1 to 3 did not choose to produce any oral evidence on their behalf. However, they got marked 2 documents as Ex.D.1 and Ex.D.2 through P.W.12 and P.W.11 respectively during the 6 [Spl.C.C.44/2002-J] course of Cross-examination. With that evidence, the Accused-1 to 3 also closed their side.
6. Heard arguments of both the sides.
7. The learned Advocate appearing on behalf of the Accused-1 has relied upon the following citations:-
1. J.Alexander -Vs- CBI [ILR 2000 Kar. 1418];
2. Gian Singh -Vs- State of Punjab and another [SLP(CRL.) No.8989/2010] ;
3. B.H.Narasimha Rao -Vs- Govt.
of Andhra Pradesh [AIR 1996 SC 64].
8. The learned Advocate appearing on behalf of the Accused-2 has relied upon the following citations:-
1. S.V.L.Murthy -Vs- State [AIR 2009 SC 2717];
2. India Brewery & Distillery Limited & Others -Vs- Shaw Wallace & Company [1998(4) Kar.L.J.752].
9. Sum and substance of the principles laid down in the decisions of the above citations are as follows:-
Even if the material collected by the Prosecution during investigation is taken on its face value and accepted in its entirety, at the most it would show that the Accused has 7 [Spl.C.C.44/2002-J] violated the norms and procedure, but do not prima facie show constituting any offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and hence, Charge framed against the Accused is liable to be quashed;
The Criminal Cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes, where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put the Accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim;
Before a person can be convicted constructively with the aid of Section 120-B of the IPC, the requirement of Section 120-A of the IPC defining 'Criminal Conspiracy' would have to be met. On the failing of the Charge under Section 120-B of the IPC, the other offences lose their roots, as without the aid of Section 120-B of the IPC, it cannot be spelled out or deduced;
On failure by the Prosecution to bring on record any evidence of wrongful gain by the Officers of the Bank or causing wrongful loss to the Bank in respect of grant of Cheque Discounting facility, so as to attract the provisions of the Prevention of Corruption Act, 1988 or otherwise, conviction is liable to be set aside;
Fact that the Cheques were discounted after purchasing them, Cheques were deposited after gap of 1 to 4 days by the customers and 8 [Spl.C.C.44/2002-J] that the amounts were deposited in the account later are not sufficient circumstances to hold that the Accused are guilty of cheating within the meaning of Section 420 of the IPC;
Dishonest intention at the time of entering into contract or transaction is necessary for constitution of offence of cheating. Where such mens rea is not proved, Charge of cheating is not sustainable.
10. Keeping in view the above principles of law and arguments advanced on behalf of both the sides, this case is dealt with.
11. On considering the rival contentions of both the parties, the Points that arise for determination in this case are as follows:-
1. Whether the Accused-1 to 3 have cheated the Bank and thereby committed an offence punishable under Section 420 of the IPC, as alleged?
2. Whether the Accused-1 is guilty of the offence of Criminal Misconduct under Section 5(2) r/w. Section 5(1)(d) of the Act, as alleged?
3. Whether the Accused-1 to 3 are guilty of the offence of Criminal Conspiracy punishable under Section 120-B r/w. Section 420 of the IPC and Sections 5(2) r/w. 5(1)(d) of the Act, as alleged?
4. What Order?
9 [Spl.C.C.44/2002-J]
12. Findings of this Court on the above Points are as follows:-
Point-1: Negative;
Point-2: Negative;
Point-3: Negative;
Point-4: See final portion of this Judgment.
REASONS UNDISPUTED FACTS
13. P.W.3-Sri.Prakash Jayapalappa Gongade and the Accused-2 are the sons of Late Sri.Jayapalappa. Said Sri.Jayapalappa was doing bangle business and died on 13.02.1982. The Accused-1 is the maternal uncle of P.W.3 and the Accused-2.
14. The Accused-1 was working as Manager of the Bank from 1980 to 1984. C.W.22-Sri.C.K.John succeeded to the Accused-1 as Manager of the Bank. C.W.22 is not alive now. P.W.4-Sri.C.L.Muralidharan succeeded to C.W.22 as Manager of the Bank.
15. As partners of M/s.Vijetha Textiles, P.W.1- Sri.Shanthilal Mutha and the Accused-2 opened Current Account No.355 in the Bank on 03.11.1982. Ex.P.4 is the Application filed for opening of that Current Account by P.W.1 and the Accused-2. Ex.P.4(a) is the Partnership Letter given by P.W.1 and the Accused-2 for opening that 10 [Spl.C.C.44/2002-J] Account. The Accused-1 was working as Manager in the Bank at that time. In the capacity of the Manager of the Bank, he introduced P.W.1 and the Accused-2 to the Bank for the purpose of opening the said Current Account. Ex.P.4(b) is the signature of the Accused-1 in Ex.P.4 about the said introduction. Ex.P.15 and Ex.P.35 are the Copies of Statements of Account pertaining to that Current Account.
16. The Accused-2 was having S.B.Account bearing No.350 at Malaprabha Grameena Bank, Ugargol Branch, Savadatti Taluk, Belagavi District (for short, 'the Grameena Bank'). Later, the said Bank merged with Karnataka Vikasa Grameena Bank. Ex.P.43 is the Ledger Extract pertaining to the said S.B.Account of the Accused-2.
17. The Accused-2 issued Cheque as per Ex.P.5 pertaining to his S.B.Account of the Grameena Bank. Date on that Cheque was written as '27.07.1983' and amount was written as 'Rs.92,500/-' payable to M/s.Vijetha Textiles. As a Manager of the Bank, the Accused-1 proceeded to purchase that Cheque and granted Cheque Discounting facility to M/s.Vijetha Textiles. As per the instructions of the Accused-1, P.W.12-Smt.Renuka Devi, the then Clerk-cum-Cashier of the Bank, prepared Voucher as per Ex.P.17 and Collection Schedule as per Ex.P.18 for the purpose of giving that Cheque Discounting facility. She made entries in Clean Bill Purchase Register-Ex.P.38 11 [Spl.C.C.44/2002-J] and Transfer Scroll-Ex.P.39 as per Ex.P.38(a) and Ex.P.39(a) in this regard.
18. P.W.6-Sri.S.J.Sampath Kumar, the then Clerk of the Bank, received Pay-in-Slip as per Ex.P.16 for Rs.92,500/-, made Ledger Postings and submitted documents to his superior for further action.
19. Similarly, the Accused-1 granted Cheque Discounting facility in respect of Cheque-Ex.P.27 issued for Rs.5,000/- by the Accused-2 on 28.07.1984 and Cheque dated 10.07.1983 issued for Rs.51,320/- by the Accused-2 in favour of M/s.Vijetha Textiles. P.W.12 has made entry in this regard in Ex.P.39 as per Ex.D.1.
20. Out of the proceeds of the Cheque Discounting facility granted by the Accused-1 in favour of M/s.Vijetha Textiles, Rs.80,000/- was withdrawn on 28.07.1983 and Rs.9,000/- was withdrawn on 01.08.1983 by one Sri.B.P.Bhat through the Cheques issued by M/s.Vijetha Textiles. Ex.P.19 and Ex.P.20 are those Cheques. P.W.6 checked the balance in the Current Account of M/s.Vijetha Textiles and as there was sufficient balance in that Account at that time, he made related entries in Ex.P.36-Current Account Payment Scroll Register as per Ex.P.36(a) and Ex.P.36(b) and sent Ex.P.19 and Ex.P.20 to the Officer for passing those Cheques. P.W.7-Sri.B.Sathyanarayana Rao, the then Cashier of the Bank, made the said payments to Sri.B.P.Bhat by making entries in Rough Chitta Book- Ex.P.37 at Ex.P.37(a) and Ex.P.37(b).
12 [Spl.C.C.44/2002-J]
21.P.W.8-Sri.K.Vittappa Bhagvat, the then Clerk of the Bank, prepared Vouchers as per Ex.P.32 to Ex.P.34 debiting the outstanding amount of M/s.Vijetha Textiles relating to Clean Bill Purchase Transactions to the Current Account of M/s.Vijetha Textiles.
22. Ex.P.5 was sent to the Grameena Bank for collection on 27.07.1983 along with Ex.P.18. As there was no sufficient balance in the Account of the Accused-2 at that time, the said Cheque was dishonoured. Ex.P.21 is the Endorsement issued by P.W.9-Sri.S.G.Hegde, the then Manager of the Grameena Bank, in this regard. Again on 06.08.1983, the Bank sent the same Cheque for encashment to the Grameena Bank along with a Covering Letter-Ex.P.22. As there was no sufficient balance for honouring the Cheque at that time also, the said Cheque was dishonoured. Meanwhile, on 18.10.1983, Sri.C.K.John sent a Letter as per Ex.P.23 to the Grameena Bank to ascertain the fate of Ex.P.5. P.W.9 issued Endorsement as per Ex.P.24 about dishonour of the said Cheque. About dishonouring of the Cheque, entries are made in Ex.P.40- Cheques Returned Unpaid Register as per Ex.P.40(a) and Ex.P.40(b). By paying Rs.10,000/- on 29.10.1983 to the Bank, the Accused-2 requested the Bank through a Letter- Ex.P.26 to grant some time to adjust the amount in respect of that Cheque.
23. Similarly, Ex.P.27 was sent to the Grameena Bank for collection on 31.8.1984. As there was no 13 [Spl.C.C.44/2002-J] sufficient balance in the Account of the Accused-2 at that time, the said Cheque was dishonoured and P.W.10- Sri.P.J.Chikali, the then Manager of the Grameena Bank, issued Endorsement in this regard as per Ex.P.28. The Accused-2 requested the Bank on 04.09.1984 through a Letter-Ex.P.29 to re-present the Cheque for collection. Again on 20.09.1984, the Bank sent the same Cheque for encashment to the Grameena Bank. As there was no sufficient balance for honouring the Cheque at that time also, P.W.10 issued Endorsement as per Ex.P.30 dishonouring the said Cheque. Entries are made about these transactions in Ex.P.42-Outward Bills Register as per Ex.P.42(a).
24. As the Cheque amount was not fully realized, Sri.C.K.John sent a Letter as per Ex.P.25 on 26.03.1984 to M/s.Vijetha Textiles. By explaining his difficulties for repayment of the outstanding balance, the Accused-2 sent a Letter as per Ex.P.31 to the Bank on 20.09.1985 requesting some time for repayment.
25. P.W.11-Sri.K.Y.Guruprasad was working as Police Inspector under the Complainant. On the basis of source information, he registered this case on 25.09.1986 and submitted FIR as per Ex.P.44 to the Court. On the Application filed as per Ex.P.45 by the Superintendent of Police of the Complainant, an Order was passed on 26.09.1986 by the I ACMM Court, Bengaluru as per Ex.P.45(a) authorizing P.W.11 for investigating this case.
14 [Spl.C.C.44/2002-J]
26. On 07.10.1986, P.W.11 conducted searches in the residential premises of the Accused-1 and business premises of M/s.Vijetha Textiles and seized Ex.P.1- Agreement of License, Ex.P.2-Partnership Deed, Ex.P.6 to Ex.P.14-Letters, Ex.P.46-Xerox Copy of Supplementary Deed and Ex.P.47-Note Book regarding daily expenses of M/s.Vijetha Textiles.
27. On 04.12.1986, P.W.11 collected Ex.P.4, Ex.P.5, Ex.P.15, Ex.P.19 and Ex.P.26 to Ex.P.31 from P.W.4 under a Receipt Memo-Ex.P.51. On 24.03.1987, P.W.11 collected Cheque-Ex.P.20 from P.W.4. On 20.04.1987, P.W.11 collected Ex.P.36 to Ex.P.40 from P.W.4.
28. On 22.12.1986, P.W.11 collected Ex.P.43 and Ex.P.52 from P.W.10. On 23.12.1986, P.W.11 collected Ex.P.18, Ex.P.21 to Ex.P.24 from P.W.10 under a Letter- Ex.P.53.
29. On 06.02.1987, P.W.11 received Circular as per Ex.P.41 from P.W.5-Sri.C.V.Shivaprasad.
30. On 04.03.1987, P.W.11 collected Self Attested Xerox Copy of Cheque as per Ex.P.54 from Sri.R.S.Rajan.
31. On 05.03.1987, P.W.11 collected Copy of Partnership Deed as per Ex.P.55 and Copy of Release Deed as per Ex.P.3 from P.W.1.
32. On 16.03.1987, P.W.11 collected Ex.P.16, Ex.P.17, 15 [Spl.C.C.44/2002-J] Ex.P.32 to Ex.P.34 and Ex.P.42 from C.W.20- Smt.H.S.Ranganayaki.
33. On 17.03.1987, P.W.11 seized Letter as per Ex.P.13 from the Accused-2 under a Seizure Memo- Ex.P.56.
34. On 03.08.1987, P.W.11 collected Cheques, Inland Letter and Blank Pronotes as per Ex.P.57 to Ex.P.63 from C.W.9-Sri.B.Shambu Rao under a Receipt Memo- Ex.P.64.
35. After completing investigation on 22.04.1988, P.W.11 filed Charge Sheet. The Accused-1 challenged the said Charge Sheet before the Hon'ble High Court of Karnataka in Crl.R.P.No.933/1988 on the ground of want of proper Sanction. On 19.02.2001, the Hon'ble High Court of Karnataka passed an Order keeping the proceedings in abeyance against the Accused-1 with a liberty to the Complainant to obtain proper Sanction within 6 months. Ex.P.65 is the Copy of the said Order.
36. The Accused-1 was dismissed from service on 21.08.1993. The Complainant sought review of the Order dated 19.02.2001 passed as per Ex.P.65. On 24.08.2001, the Hon'ble High Court of Karnataka passed modified Order giving liberty to the Complainant to file fresh Charge Sheet without Sanction Order. Ex.P.66 is the Copy of the said modified Order. By virtue of that Order, the Complainant has filed fresh Charge Sheet on 16.02.2002.
16 [Spl.C.C.44/2002-J]
37. For recovery of Rs.1,14,214.60 in respect of Cheque Discount facility granted by the Accused-1 to M/s.Vijetha Textiles, the Bank filed a Suit in O.S.No.3317/1986 on the file of XXIX Additional City Civil Judge, Bengaluru against M/s.Vijetha Textiles, the Accused-2 and P.W.1. On 17.07.2000, the said Suit was decreed directing those 3 persons to pay Rs.1,14,215/- with interest and Court costs. Subsequently, the matter was settled through compromise. In pursuance of that compromise, on 05.03.2001, M/s.Vijetha Textiles paid Rs.1,14,000/- to the Bank in full and final settlement of the claim of the Bank. Ex.P.2 is the Certificate issued by the Bank in this regard.
38. All the above facts are not under serious dispute.
POINT-1
39. On considering the rival contentions of both the parties and the evidence placed on record, it is just and convenient to determine this Point under the following Heads:
1. Textile Business by the Accused-1;
2. Issue of Blank Accommodation Cheque by the Accused-2 and Withdrawal of Money by the Accused-3;
3. Temporary Over Draft and Cheque Discount Facilities granted by the Accused-1;
4. Cheating by the Accused-1 to 3:
5. Conclusion.
17 [Spl.C.C.44/2002-J]
1. Textile Business By The Accused-1:
40. According to the Complainant, the Accused-1 started private textile business in the trade name of M/s.Vijetha Textiles on 26.11.1982 by making the Accused-2 and P.W.1-Sri.Shanthilal Mutha as name sake partners of M/s.Vijetha Textiles and employed the Accused-3 to assist the Accused-2 in the banking transactions of M/s.Vijetha Textiles. In support of the contention of the Complainant, the learned Public Prosecutor has relied upon the evidence of P.W.1 to P.W.3 and P.W.14 and also the contents of Ex.P.1 to Ex.P.4, Ex.P.4(a), Ex.P.6 to Ex.P.14, Ex.P.47, Ex.P.54, Ex.P.55 and Ex.P.57 to P.63. Ex.P.55 is a Copy of Ex.P.2.
41. It is not in dispute that P.W.1 is doing cloth business since 1981 at Bengaluru. P.W.1 has deposed that the Accused-1 used to visit his shop for purchasing cloth and that the Accused-1 wanted to open the textile business for the Accused-2. As per this Statement of P.W.1, the Accused-1 wanted to start textile business for the Accused-2 and not for himself. P.W.1 has further deposed that the Accused-1 had rented a premises at Malleshwaram for running textile business, he had fully furnished the said premises and that he requested him (P.W.1) to join as a partner in the business of the Accused- 2, the firm's name was M/s.Vijetha Textiles, the Accused-1 had promised that he would invest for the said firm and that towards his contribution of 20% towards investment, 18 [Spl.C.C.44/2002-J] he was supplying the textile material from his firm and that the said firm was actually belonging to the Accused-1. He has identified Ex.P.1 as License Deed executed by him and the landlord of the premises situated at Malleshwaram, where the textile business of M/s.Vijetha Textiles was running, and Ex.P.2 as the Partnership Deed. Ex.P.1 shows that P.W.1 took the premises from Sri.Om Prakash on license on 08.10.1982 for running cloth business. This fact negatives the evidence of P.W.1 that the Accused-1 took the premises on rent for running the textile business. Ex.P.2 shows that the Accused-2 and P.W.1 entered into Partnership for running cloth business. This document does not whisper anything about the Accused-1 or his involvement in the textile business relating to M/s.Vijetha Textiles. On scrutiny of Ex.P.1 and Ex.P.2, it is clear that even prior to entering into partnership by the Accused-2 and P.W.1, P.W.1 took the premises on rent for running the textile business. As such, contents of Ex.P.1 and Ex.P.2 negative the evidence of P.W.1 about involvement of the Accused-1 in the textile business.
42. P.W.1 has further deposed that after 2-3 months of opening of M/s.Vijetha Textiles, he came to know that a Cheque for Rs.92,500/- drawn on S.B.Account of the Accused-2 in some other Bank had been discounted in the account of M/s.Vijetha Textiles and that when he asked the Accused-2 as to what had happened to that amount, the Accused-2 told him that the Accused-1 had used the said 19 [Spl.C.C.44/2002-J] amount and that when he asked the Accused-1 about the said transaction, the Accused-1 told him that he would sell his car and clear the amount, but, he did not clear the said amount. There is no supporting evidence in this regard. As per the said evidence of P.W.1, the incident of Discounting of Cheque for Rs.92,500/- issued by the Accused-2 took place after 2-3 months of opening of M/s.Vijetha Textiles. As per Ex.P.2 and Ex.P.4, the said firm was opened in the month of November 1982. As such, as per the evidence of P.W.1, the Cheque Discount incident took place in the month of January or February 1983. Ex.P.5, Ex.P.15, Ex.P.17, Ex.P.18, Ex.P.38 and Ex.P.39 indicate that the said Cheque Discount transaction took place in the month of July 1983. This circumstance negatives the evidence of P.W.1.
43. P.W.1 has further deposed that in the year 1984 or 1986, he retired from the Partnership of M/s.Vijetha Textiles as it was involved in the bogus transaction and that at that time, it was shown in the Release Deed that Rs.10,000/- had been paid to him, but, actually he did not receive any such amount. P.W.1 has not stated as to how and in what manner bogus transactions took place in the business of M/s.Vijetha Textiles. Ex.P.3 is the Copy of Release Deed referred to by P.W.1. Ex.P.3 does not show that P.W.1 retired from the Partnership as there were bogus transactions in the business of the said firm. On the other hand, as per Ex.P.3, P.W.1 retired from the Partnership due to his exigency of work and other pre-
20 [Spl.C.C.44/2002-J] occupations. Contents of Ex.P.3 also show that he received Rs.10,000/- as full and final settlement of his interest in the partnership business. Ex.P.3 also shows that P.W.1 contributed Share Capital of 20% and the Accused-2 contributed 80% of Capital fund to the said business. As such, contents of Ex.P.3 fully negative the evidence of P.W.1.
44. P.W.1 is not a layman of putting signatures blindly without ascertaining the contents of the documents. On the other hand, he is a businessman owning 2 firms. In fact, in the Cross-examination, P.W.1 has stated that without going through the documents in the regular course of business and other transactions, he will not put his signatures to those documents. If at all the things had happened in the partnership business as stated by P.W.1, he would not have signed in Ex.P.1, Ex.P.2 and Ex.P.3, as the contents of those documents are contrary to and inconsistent with his stand. Though Ex.P.2 and Ex.P.3 clearly show that the contribution of P.W.1 in the said partnership business was 20%, in his Cross-examination, he has denied the said fact. As observed above, it is not in dispute that the Bank filed suit in O.S.No.3317/1986 against the Partnership Firm, the Accused-2 and P.W.1 and that the said suit is ended in a decree against them and that ultimately under one time settlement on 05.03.2001 through payment of Rs.1,14,000/- to the Bank by M/s.Vijetha Textiles. But, P.W.1 has denied the said fact also. All these facts and circumstances show that P.W.1 21 [Spl.C.C.44/2002-J] does not hesitate to depose contrary to his own documents by suppressing the real state of affairs. As such, it is not safe to rely upon the evidence of P.W.1.
45. P.W.2-Sri.S.Prakashchand is a practicing Chartered Accountant. He has deposed that P.W.1 and the Accused-2 entered into Partnership as per Ex.P.2, he drafted that document and that for preparing that document, the Accused-1 & 2 and P.W.1 had come to his office. He has further deposed that after seeing the said document, both the partners affixed their signatures to the Partnership Deed. Though it is the evidence of P.W.2 that the Accused-1 had come to his office while preparing Ex.P.2, it is not his evidence that the Accused-1 gave instructions to prepare the document or he involved in any manner for entering into Partnership by P.W.1 and the Accused-2. As such, the evidence of P.W.2 does not assist the Complainant to substantiate his contention about the involvement of the Accused-1 in the partnership business of M/s.Vijetha Textiles. As the Accused-1 is the maternal uncle of the Accused-2 and as the Accused-2 entered into Partnership business, the Accused-1 might have accompanied the Accused-2 and P.W.1 to the office of P.W.2. As such, merely because the Accused-1 had gone to the office of P.W.2 along with P.W.1 and the Accused-2, in the absence of any accepting evidence, it cannot be said that the Accused-1 had been to the office of P.W.2 for starting cloth business.
22 [Spl.C.C.44/2002-J]
46. P.W.3 has deposed that after the death of his father on 13.02.1982, the Accused-1 brought the Accused- 2 to Bengaluru for doing cloth business, the Accused-1 started cloth business and that the Accused-2 was working in that business and that for that business, the Accused-1 invested money. In his Cross-examination, P.W.3 has stated that he did not come to Bengaluru at any time in connection with the business of M/s.Vijetha Textiles, he does not know as to how many persons started the business of M/s.Vijetha Textiles, he does not know personally as to who invested money for doing that business and that he does not know about business dealings of that business. All these answers of P.W.3 show that he does not know anything about the business of M/s.Vijetha Textiles and that without knowing anything about the said business, he has deposed that the Accused- 1 started that business by investing money. As such, it is not safe to rely upon the evidence of P.W.3 also.
47. P.W.3 has identified Ex.P.6 to Ex.P.14 as the Letters written by the Accused-1. But, he has not stated as to why and under what circumstances, the Accused-1 wrote those Letters. In fact, P.W.3 has stated that he saw Ex.P.6 to Ex.P.14 for the first time in the Court on that day on which he gave evidence. As such, it is clear that P.W.3 does not know anything about Ex.P.6 to Ex.P.14. Even otherwise, contents of Ex.P.6 to Ex.P.14 do not in any way assist the Complainant to show that the Accused-1 started and carried on the business of M/s.Vijetha Textiles. These 23 [Spl.C.C.44/2002-J] Letters indicate that the Accused-1 has advised the Accused-2 to take proper care in his business dealings. As such, Ex.P.6 to Ex.P.14 are also of no assistance to the Complainant to substantiate his contention.
48. P.W.14-Sri.P.S.Shiva Kumar was working as Departmental Officer in the Bank when the Accused-1 was the Manager in the Bank. He has deposed that the Accused-1 was doing textile business in the name of the Accused-2 at Malleshwaram, Bengaluru and that the Accused-3 was also assisting that business by sitting in the shop. It is not stated by P.W.14 as to what was the basis for him to say that the Accused-1 was doing the textile business in the name of the Accused-2 and that the Accused-3 was assisting in that business. It is not at all his evidence that he is actually seen the said business of the Accused-1 to 3 or he came across any of the transactions relating to the said business either in his official capacity or in his personal capacity. In the absence of such evidence, it is not safe to rely upon the bare statement of P.W.14 that the Accused-1 was doing cloth business in the name of the Accused-2 and that the Accused-3 was also assisting in that business.
49. Though it is the strong contention of the Complainant that the Accused-3 was employed by the Accused-1 to assist the Accused-2 in the cloth business, none of the Witnesses has given evidence in support of that contention. Though P.W.14 has stated that the 24 [Spl.C.C.44/2002-J] Accused-3 was assisting in the business of the Accused-1 and the Accused-2, as observed above, his evidence is not believable. P.W.1 being partner of M/s.Vijetha Textiles, is a proper person to speak about the said contention of the Complainant against the Accused-3. But, he has not whispered anything against the Accused-3 or his employment and assistance in the business of M/s.Vijetha Textiles. There are no documents to show that the Accused-1 employed the Accused-3 to assist the Accused-2 in the cloth business. As such, it is not safe to accept the bare contention of the Complainant in this regard.
50. As observed above, the evidence of P.W.1, P.W.3 and P.W.14 is not believable and the evidence of P.W.2 is of no assistance to substantiate the contention of the Complainant and Ex.P.1 to Ex.P.4, Ex.P.4(a), Ex.P.6 to Ex.P.14 and Ex.P.55, which is a Copy of Ex.P.2, are also of no assistance to the Complainant to substantiate his contention as observed above. Ex.P.47 is the Note Book regarding daily expenses of M/s.Vijetha Textiles. Ex.P.54 is Xerox Copy of Cheque collected by P.W.11 from one Sri.R.S.Rajan. Ex.P.57 to Ex.P.63 are the Cheques, Inland Letter and Blank Pronotes collected by P.W.11 from C.W.9- Sri.B.Shambu Rao. Sri.R.S.Rajan and C.W.9 have not come forward to give evidence and to speak about Ex.P.54, Ex.P.57 to Ex.P.63. No one has spoken about the contents of Ex.P.47. None of these documents shows involvement of the Accused-1 personally in any manner in 25 [Spl.C.C.44/2002-J] the business of M/s.Vijetha Textiles. As such, all these documents are also of no assistance to the Complainant. Ex.P.26 is the Letter written by the Accused-2 requesting the Bank to grant some more time to adjust the Cheque amount of Rs.92,500/-. Ex.P.29 is the Letter written by the Accused-2 to re-present the Cheque for collection. Ex.P.31 is the Letter written by the Accused-2 requesting the Bank to grant some time for repayment of the outstanding balance. Ex.P.38 and Ex.P.39 show several transactions made by the Accused-2 on behalf of M/s.Vijetha Textiles. On considering all these transactions coupled with contents of Ex.P.1 to Ex.P.4, Ex.P.4(a), the only inference that could be drawn is that P.W.1 and the Accused-2 were carrying out the business in the name of M/s.Vijetha Textiles as active partners. For all these reasons, it is not possible to accept that the Accused-1 started cloth business under the trade name of M/s.Vijetha Textiles by keeping P.W.1 and the Accused-2 as name sake partners and that he employed the Accused-3 to assist the Accused-2 in the said business. On the other hand, the evidence available on record indicates that P.W.1 and the Accused-2 were the active partners of M/s.Vijetha Textiles and that they were carrying out business of that firm personally.
2. Issue of Blank Accommodation Cheque by the Accused-2 and Withdrawal of Money by the Accused-3:
51. According to the Complainant, the Accused-2 26 [Spl.C.C.44/2002-J] issued a Blank Accommodation Cheque relating to his personal S.B.Account for the use of the Accused-1, the Accused-3 filled up that Cheque for Rs.92,500/- and presented the same to the Bank on 27.07.1983 and after granting of Cheque Discount facility by the Accused-1, the Accused-3 has withdrawn the amount from the Bank. In support of the said contention of the Complainant, the learned Public Prosecutor has relied upon the evidence of P.W.6, P.W.7 and P.W.12.
52. The said Cheque, referred to by the Complainant, is Ex.P.5. P.W.6 and P.W.7 have not stated that the Accused-2 issued a Blank Accommodation Cheque for the use of the Accused-1 as contended by the Complainant. Even P.W.12 has not stated that the Accused-2 issued Blank Accommodation Cheque for the use of the Accused-1. However, she has stated that the Accused-1 gave Ex.P.5 to her and that he instructed her to prepare papers for purchasing that Cheque and that then she prepared Voucher and Schedule for the purpose of purchasing the Cheque. Except this, she has not stated anything against the Accused-1 and 2. As a Manager of the Bank, the Accused-1 might have handed over Ex.P.5 to P.W.12 for process of that Cheque. Merely because the Accused-1 handed over of the Cheque to P.W.12 for process, it cannot be inferred that the Accused-1 received a Blank Accommodation Cheque for his use from the Accused-2. As P.W.6, P.W.7 and P.W.12 have not stated anything about issue of Blank Accommodation Cheque by 27 [Spl.C.C.44/2002-J] the Accused-2 for the use of the Accused-1, their evidence is of no assistance to the Complainant to substantiate his contention. There is no other evidence on behalf of the Complainant in this regard. P.W.1 being a partner of M/s.Vijetha Textiles is the best person to speak about the said contention of the Complainant. But, he has not stated anything about issue of Blank Accommodation Cheque by the Accused-2 to the Accused-1 for his use. On the other hand, contents of Ex.P.26 and Ex.P.31 show that the Accused-2 issued Ex.P.5 on 27.07.1983 for Rs.92,500/- in favour of M/s.Vijetha Textiles. Hence, it is not possible to accept the bare contention of the Complainant that the Accused-2 issued Blank Accommodation Cheque for the use of the Accused-1.
53. Ex.P.16 is the Pay-in-Slip through which Ex.P.5 was presented to the Bank. P.W.6 has deposed that on 27.07.1983, when he was looking after the Current Account Counter in the Bank, he made writings on Ex.P.16 and Ledger Postings in respect of that document and that he submitted that document to his superior for further action. But, it is not the evidence P.W.6 that the Accused-
3 filled up Ex.P.5 and that he presented the same through Ex.P.16. P.W.7 and P.W.12 have also not stated that the Accused-3 filled up the contents in Ex.P.5 and that he presented the said Cheque along with Ex.P.16. As such, the evidence of P.W.6, P.W.7 and P.W.12 is of no assistance to the Complainant to substantiate his 28 [Spl.C.C.44/2002-J] contention that the Accused-3 filled up the contents of Ex.P.5 and that he presented the same to the Bank along with Ex.P.16. Even Ex.P.5 and Ex.P.16 do not in any way show that the Accused-3 filled up the contents of Ex.P.5 and that he presented the same to the Bank through Ex.P.16. There is no other evidence on behalf of the Complainant about the said contention. Hence, it is not possible to accept the bare contention of the Complainant that the Accused-3 filled up the contents of Ex.P.5 and that he presented the same to the Bank.
54. It is not in dispute that the Accused-1 purchased the said Cheque and granted Cheque Discounting facility to M/s.Vijetha Textiles and that proceeds of that facility were credited to the Current Account of M/s.Vijetha Textiles. P.W.6 has stated that on 28.07.1983, he received Cheque as per Ex.P.19 for Rs.80,000/- payable to Sri.B.P.Bhat. He has also stated that on 02.08.1983, he received Cheque as per Ex.P.20 for Rs.9,000/- payable to Sri.B.P.Bhat. It is not in dispute that the said Cheques were issued by the Accused-2 as a partner of M/s.Vijetha Textiles in favour of Sri.B.P.Bhat. P.W.6 has further deposed that as there was sufficient balance in the Account, he made necessary entries and sent the same to the Officer for passing the Cheques. P.W.7 has deposed that, when he was in the Cash Counter of the Bank on 28.07.1983 and 02.08.1983, he made payments in respect of Ex.P.19 and Ex.P.20 to Sri.B.P.Bhat. But, it is not the evidence of P.W.6 and P.W.7 that the said Sri.B.P.Bhat is none other than the 29 [Spl.C.C.44/2002-J] Accused-3 of this case. There is nothing to show that the Accused-3 had any connection in respect of Ex.P.19 and Ex.P.20. As such, it is not possible to accept the bare contention of the Complainant that the Accused-3 received payment in respect of Ex.P.19 and Ex.P.20. Even otherwise, even for a moment if it is accepted that the Accused-3 received payments under those Cheques, there is nothing to show that the said payments to him were illegal in any manner and that the said payments were utilised by the Accused-1 to 3 illegally.
55. From the above discussion, it is clear that there is nothing to show that the Accused-2 issued Blank Accommodation Cheque for the use of the Accused-1, the Accused-3 filled up contents of that Cheque and that he encashed the Cheque amount as contended by the Complainant.
3. Temporary Over Draft & Cheque Discount Facilities Granted by the Accused-1:
56. According to the Complainant, by abusing his official position, the Accused-1 granted Temporary Over Draft and Cheque Discounting facilities in the Current Account No.355 unauthorisedly, recklessly and as the Cheques discounted were bounced back, the Cheques amounts were adjusted by debiting the Current Account of M/s.Vijetha Textiles resulting in creation of Temporary Over Draft several times. It is further contended by the Complainant that the Accused-1 purchased Cheque for 30 [Spl.C.C.44/2002-J] Rs.92,500/- on 27.07.1983 on behalf of the Bank unauthorisedly though he had no power. In support of the said contentions, the learned Public Prosecutor has relied upon the evidence of P.W.4, P.W.5, P.W.8 and P.W.12 to P.W.14.
57. It is not in dispute that as a Manager of the Bank, the Accused-1 has granted Cheque Discount facility and Temporary Over Draft facility to M/s.Vijetha Textiles.
P.W.4 has stated that the Accused-1 was not authorized to provide such facility and that for providing such facility, the Accused-1 had to obtain prior permission from the Regional Office and that no such permission was obtained in this case. According to P.W.4, Ex.P.41 is the Copy of Circular dated 06.06.1978 issued by Andhra Bank Limited, Central Office, regarding delegation of powers to Branch Managers for making advances. This document does not prohibit the Branch Managers to provide Cheque Purchase or Discount facility and Temporary Over Draft facility as stated by P.W.4. It is also not stated in this document that the Branch Manager had to obtain prior permission from the Regional Office to provide such facility. On the other hand, as per that Circular, Branch Managers of 'C' Class Branch had power to grant Cheque Discount facility or Cheque Purchase facility up to Rs.15,000/- and Temporary Over Draft facility up to Rs.1,000/-. In fact, P.W.5- Sri.C.V.Shiva Prasad, the then Regional Manager of Andhra Bank, Bengaluru, has admitted the said fact with reference to Ex.P.41. It is not in dispute that the Bank was 'C' Class 31 [Spl.C.C.44/2002-J] Branch at the relevant point of time. In his evidence, P.W.5 has stated that beyond the said limit, the Branch Manager has to report to the Regional Manager in Form-3A and that if the Regional Manager grants permission to the Branch Manager, he can grant that facility exceeding that amount. But, the said contention regarding permission is not mentioned in Ex.P.41. However, in the Cross- examination, P.W.5 has stated that in case of purchasing of Cheques worth more than Rs.15,000/-, the Branch Manager has to report the same to the Controlling Authority and seek ratification and that correspondence in this regard will be made through a Register called 'D.O.Register'. In the Cross-examination, P.W.4 has also admitted that Chamarajpet Branch had a Register called 'D.O.Register' relating to correspondences of the Branch with the Divisional Office. He has also stated that there are guidelines to maintain a Register relating to prior permissions given by the Higher Officers to the Branch telephonically. But, he has stated that he does not remember that such a Register was there at Chamarajpet Branch. However, he has not denied the fact of maintaining of such a Register in the Bank. Said 'D.O.Register' and 'Telephone Register' would have clearly shown the fact as to whether the Accused-1 had taken permission from the Divisional Office to grant Cheque Discount facility and Temporary Over Draft facility to M/s.Vijetha Textiles. But, for the reasons best known to the Complainant, the Complainant has not produced those 32 [Spl.C.C.44/2002-J] Registers. As the said Registers are very material, an adverse inference has to be drawn against the Complainant for non-production of the said Registers. This circumstance strongly goes against the Complainant.
58. P.W.14 has stated that if the Cheque Discounting facilities and Temporary Over Draft facilities sought by a customer come within the discretionary power of the Manager, he can grant such facilities and if such facilities exceed his discretionary power, he has to seek permission from the Divisional Office for granting such facilities. He has further deposed that the Accused-1 used to take such permission orally and that subsequently, he used to write Letters seeking confirmation from the Divisional Office and that Form-3A and 3B are the Forms relating to such confirmation. He has further deposed that those Forms will be prepared in triplicate, one form will be retained in the Branch and other 2 Forms will be sent to Zonal Office and that after sanction from the Zonal Office, one form will be sent back to the Branch by noting of sanction and that the other will be retained in the Zonal Office itself. He has further deposed that in the Branch and Zonal Office, Files will be maintained in respect of such Forms. As per this evidence of P.W.14, the Accused-1 used to take oral permission and subsequently ratification from the Divisional Office through Form-3A and 3B regarding grant of Cheque Discounting facility and Temporary Over Draft facility by him. The said evidence also shows that Files relating to said permission and ratification will be 33 [Spl.C.C.44/2002-J] maintained in the Branch Office and Zonal Office. Those Files are very important and best piece of evidence either to substantiate the contention of the Complainant that the Accused-1 did not take such permission and ratification or to rebut the contention of the Accused-1 that he had taken such permission and ratification. But, the Complainant has not produced those Files in this case. There is no explanation from the Complainant in this regard. As the said Files are very material to this case, an adverse inference has to be drawn against the Complainant for non-production of the said evidence. This circumstance also strongly goes against the Complainant. In the absence of such evidence and in view of the specific admission of P.W.14 that the Accused-1 used to take permission and ratification from the Divisional Office, the only inference that could be drawn under the circumstances is that the Accused-1 granted Cheque Discounting facility and Temporary Over Draft facility to M/s.Vijetha Textiles by obtaining permission and ratification as required. As permission and ratification have been taken by the Accused-1 to grant Cheque Discount facility and Temporary Over Draft facility, his actions regarding grant of such facilities to M/s.Vijetha Textiles cannot be said as illegal or without authority.
59. The learned Public Prosecutor has strongly relied upon the evidence of P.W.13-Sri.R.Damodhar to substantiate the contention of the Complainant that no such permission or ratification was obtained by the 34 [Spl.C.C.44/2002-J] Accused-1 in respect of Cheque Discount facility and Temporary Over Draft facility granted by the Accused-1 to M/s.Vijetha Textiles. P.W.13 was working as Office Manager of Regional office, Andhra Bank, Bengaluru, from 1986 to 1988. He has deposed that there were some irregularities at Chamarajpet Branch of Andhra Bank in the year 1986-87 and that during that time, CBI Officer enquired him about writing of Letter by the Bank regarding confirmation of Over Draft and Cheque Purchase transaction. He has further deposed that he used to maintain File regarding such correspondence in the Regional Office and that on verification, he found that no such Letter for confirmation was received from Chamarajpet Branch in respect of the transactions of M/s.Vijetha Textiles relating to Current Account No.355 and that his Office did not confirm the said transaction. The said correspondence File referred to by P.W.13 is not produced by the Complainant. There is no explanation from the Complainant in this regard. As the said File is very material to appreciate the contention of the Complainant as well as the Accused-1, for non-production of that File by the Complainant, an adverse inference has to be drawn against him. Even otherwise, Regional Office of Bengaluru was opened in the year 1986 and that prior to 1986, Chamarajpet Branch was attached to Zonal Office at Madras, as admitted by P.W.13 in his Cross- examination. As the transactions relating to this case have taken place in the year 1983 and 1984, as the Regional 35 [Spl.C.C.44/2002-J] Office at Bengaluru was opened in the year 1986, it will be quite natural that documents of the Bank prior to 1986 will not be available in the Regional Office at Bengaluru. It is not the evidence of P.W.13 that he had control or administration over the Bank during the period when transactions of M/s.Vijetha Textiles took place in the Bank relating to this case. On the other hand, P.W.13 has stated in his Cross-examination that he has no personal knowledge about M/s.Vijetha Textiles. As P.W.13 has no personal knowledge about the transactions of M/s.Vijetha Textiles with the Bank and as he had no administrative control over the Bank prior to 1986, his evidence is of no assistance to the Complainant to substantiate his contention.
60. P.W.8 has deposed about preparing of Vouchers as per Ex.P.32 to Ex.P.34 relating to Clean Bill Purchase transactions in the Current Account of M/s.Vijetha Textiles as per the instructions of the Branch Manager. So also, P.W.12 has deposed that as per the instructions of the Accused-1, she prepared papers for purchasing the Cheque-Ex.P.5 on 27.07.1983. But, these witnesses have not stated that the Accused-1 granted Cheque Discount facility or Temporary Over Draft facility to M/s.Vijetha Textiles unauthorisedly or illegally. As such, the evidence of these witnesses is also of no assistance to the Complainant.
61. In the Cross-examination, P.W.5 has stated that 36 [Spl.C.C.44/2002-J] every Branch of Andhra Bank will be subjected to yearly Inspection and yearly Audit, the Annual Audit will be conducted by the Chartered Accountant and that during that Audit, each and every transaction of the Branch will be looked into and that if any irregularity is noted, it will be reported to the Controlling Authority. In the Cross- examination, P.W.11 has also admitted that during investigation, he came to know that Audit was done in the Bank every year. If at all the Cheque Discounting facilities and Temporary Over Draft facilities granted by the Accused-1 were unauthorised or illegal, the Auditors and Inspectors would have noted the same during the Audit and Inspection. As such, Audit Report and Inspection Report are very material to this case. But, those Reports are not produced. There is nothing to show that Inspectors and Auditors raised their fingers about the Cheque Discounting facility and Temporary Over Draft facility granted by the Accused-1 in favour of M/s.Vijetha Textiles. This circumstance also strongly goes against the Complainant.
62. As observed above, there is nothing on behalf of the Complainant to show that the Accused-1 granted Cheque Discounting facility and Temporary Over Draft facility to M/s.Vijetha Textiles without any permission. On the other hand, the evidence of P.W.14 shows that the Accused-1 used to take such permission and ratification for granting those facilities.
37 [Spl.C.C.44/2002-J]
4. Cheating By The Accused-1 To 3:
63. It is not in dispute that the Cheque-Ex.P.5 so purchased by the Accused-1 on behalf of the Bank was dishonoured twice. As observed above, the Complainant filed a Suit in O.S.No.3317/1986 for recovery of the said Cheque amount with interest and ultimately the said matter was compromised by way of payment of that amount by M/s.Vijetha Textiles to the Bank. As such, the Bank did not suffer any loss in respect of the said Cheque Purchase transaction.
64. According to the Complainant, the said actions of the Accused-1 about carrying out cloth business in the name of M/s.Vijetha Textiles by making P.W.1 and the Accused-2 as name sake partners and by employing the Accused-3 to assist the Accused-2; issue of Blank Accommodation Cheque by the Accused-2 for the use by the Accused-1; filling up and presentation of that Cheque and also receiving of amount by the Accused-3 and also Cheque Discount facility and Temporary Over Draft facility granted by the Accused-1 to M/s.Vijetha Textiles and dishonour of the Cheque-Ex.P.5 purchased by the Accused- 1 caused wrongful loss to the Bank to the tune of Rs.1,14,214.60 and corresponding wrongful gain to the Accused-1 to 3 and as such, the Accused-1 to 3 have cheated the Bank. As observed above, there is no evidence to show that the Accused-1 carried cloth business in the name of M/s.Vijetha Textiles by making P.W.1 and the 38 [Spl.C.C.44/2002-J] Accused-2 as name sake partners and by employing the Accused-3 to assist the Accused-2, the Accused-2 issued a Blank Accommodation Cheque to the Accused-1, the Accused-3 filled up and presented that Cheque and that he encashed the Cheque amount. As observed above, there is also no evidence to show that the said Cheque Discount facility and Temporary Over Draft facility granted by the Accused-1 were not illegal or unauthorized. There is nothing to show that the Accused-1 to 3 had dishonest intention to cheat the Bank. There is also nothing to show that the Accused-1 to 3 fraudulently or dishonestly induced the Bank or any of the Officers of the Bank by deception or otherwise illegally to deliver money or any property to them. Records indicate that the said Cheque Discounting facility and Temporary Over Draft facility were availed by M/s.Vijetha Textiles and granted by the Accused-1 in the ordinary course of banking business. Though the Cheque-
Ex.P.5 was dishonoured twice, which may amount to loss to the Bank temporarily, there is nothing to show that there was dishonest intention or fraud on the part of the Accused-1 to 3 in respect of the said dishonour of the Cheque. On the other hand, as observed above, contents of Ex.P.26, Ex.P.29 and Ex.P.31 written by the Accused-2 show that due to his difficulties, he could not repay the amount due to the Bank. However, Ex.D.2 shows as observed above that ultimately the matter was compromised between M/s.Vijetha Textiles and the Bank by way of payment of Rs.1,14,000/- by M/s.Vijetha 39 [Spl.C.C.44/2002-J] Textiles. All these circumstances negative the contention of the Complainant about causing wrongful loss to the Bank on account of the actions of the Accused-1 to 3. So also, there is nothing on record to show that there was wrongful gain to the Accused-1 to 3 in any manner in respect of the said Cheque Discount facility and Temporary Over Draft facility granted to M/s.Vijetha Textiles. As such, it cannot be said that the Accused-1 to 3 have cheated the Bank as alleged.
5. Conclusion:
65. From the above discussion on the available facts, circumstances and the evidence on record, it is clear that the Complainant has failed to prove that the Accused-1 to 3 have cheated the Bank as alleged and as such, the Accused-1 to 3 cannot be held as guilty for the offence punishable under Section 420 of the IPC. For all these reasons, Point-1 is answered in the negative.
POINT-2
66. According to the Complainant, as the Accused-1 abused his position as Public Servant and granted Cheque Discount facility and Temporary Over Draft facility to M/s.Vijetha Textiles, which resulted in wrongful loss to the Bank as well as wrongful gain to the Accused-1 to 3, the Accused-1 is guilty of Criminal Misconduct within the meaning of Section 5(1)(d) of the Act and punishable under Section 5(2) of the Act. As observed above, the evidence on record does not show that the Accused-1 40 [Spl.C.C.44/2002-J] granted Cheque Discount facility and Temporary Over Draft facility to M/s.Vijetha Textiles illegally or without any authority. On the other hand, the evidence on record shows that he has obtained permission as well as ratification in respect of those facilities granted by him.
There is nothing to show that the Accused-1 abused his position as Manager of the Bank to grant such facilities. There is also nothing to show that from the said acts, he obtained any pecuniary advantage for himself or for any other person. Hence, it is not possible to accept the bare contention of the Complainant that the Accused-1 is guilty of Misconduct within the meaning of Section 5(1)(d) of the Act. For all these reasons, this Point is answered in the negative.
POINT-3
67. Though the Complainant has alleged that there was Criminal Conspiracy in between the Accused-1 to 3 to Cheat the Bank as well as to commit the offence of Criminal Misconduct by the Accused-1, there is nothing to show that there was prior agreement or meeting of minds between the Accused-1 to 3 for doing any illegal act much less Cheating and Criminal Misconduct and that they did any illegal act in furtherance of that agreement. As observed above, there is no evidence at all to show that the Accused-1 to 3 cheated the bank and the Accused-1 committed Criminal Misconduct. Hence, the Accused-1 to 3 cannot be held as guilty of the offence of Criminal 41 [Spl.C.C.44/2002-J] Conspiracy. For all these reasons, this Point is answered in the negative.
POINT-4
68. In view of the negative findings given on the Points-1 to 3, it is clear that the Complainant has failed to prove any of the offences alleged against the Accused-1 to 3 and as such, the Accused-1 to 3 are entitled for acquittal. In the result, the following Order is passed:
ORDER Under Section 235(1) of the Cr.P.C., the Accused-1 to 3 are acquitted from the Charge of the offence punishable under Sections 120-B r/w. 420 of the IPC and Sections 5(2) r/w. 5(1)(d) of the Act and Section 420 of the IPC and also the Accused-1 is acquitted from the Charge of the offence punishable under Sections 5(2) r/w. 5(1)(d) of the Act. Bail Bonds of the Accused-1 to 3 stand cancelled.
(Dictated to Judgment Writer, transcribed by her, revised, corrected and then pronounced by me in the Open Court on this the 11th day of February 2016.) (ASWATHA NARAYANA) XLVII Additional City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru.
42 [Spl.C.C.44/2002-J] ANNEXURE
1. LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT WITH THE DATES OF THEIR EXAMINATION:
P.W.1: Sri.Shanthilal Mutha 05.05.2014 & 30.03.2015 P.W.2: Sri.S.Prakashchand 29.04.2015.
P.W.3: Sri.Prakash Jayapalappa 20.07.2015.
Gongade P.W.4: Sri.C.L.Muralidharan 21.07.2015.
P.W.5: Sri.C.V.Shiva Prasad 20.07.2015.
P.W.6: Sri.S.J.Sampath Kumar 24.07.2015.
P.W.7: Sri.B.Sathyanarayana Rao 27.07.2015.
P.W.8: Sri.K.Vittappa Bhagvat 27.07.2015.
P.W.9: Sri.S.G.Hegde 28.07.2015.
P.W.10: Sri.P.J.Chikali 28.07.2015.
P.W.11: Sri.K.Y.Guruprasad 29.07.2015 &
22.09.2015.
P.W.12: Smt.G.Renuka Devi 10.09.2015.
P.W.13: Sri.R.Dhamodhar 20.11.2015.
Sri.P.S.Shiva Kumar 20.11.2015.
P.W.14:
2. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE COMPLAINANT:
Ex.P.1 : License Deed dated 08.10.1982 executed between P.W.1 & Sri.Om Prakash.
43 [Spl.C.C.44/2002-J] Ex.P.1(a) : Signature of P.W.1 in Ex.P.1.
Ex.P.2 : Partnership Deed dated 21.11.1982 executed between P.W.1 & the Accused-2.
Ex.P.2(a) : Signature of P.W.1 in Ex.P.2. Ex.P.3 : Xerox Copy of Release Deed dated 02.04.1984 executed between P.W.1 & the Accused-2.
Ex.P.4 : Current Account Opening Form in the name of M/s.Vijetha Textiles.
Ex.P.4(a) : True Copy of Partnership Letter.
Ex.P.4(b) : Signature of the Accused-1 in Ex.P.4.
Ex.P.5 : Certified Copy of Cheque No.144675.
Ex.P.6 : Letter dated 29.11.1984 written by the Accused-1 to Sri.Bhat.
Ex.P.7 : Letter dated 11.03.1985 written by the Accused-1 to Sri.Ashok.
Ex.P.8 : Letter dated 29.04.1985 written by the Accused-1 to Sri.Ashok.
Ex.P.9 : Letter dated Nil written by the Accused-1 to Sri.Bhat.
Ex.P.10 : Letter dated 09.09.1985 written by the Accused-1 to Sri.Ashok.
Ex.P.11 : Letter dated 24.09.1985 written by the Accused-1 to Sri.Ashok.
Ex.P.12 : Letter dated 04.10.1986 written by the Accused-1.
Ex.P.13 : Letter dated 12.10.1985 written by the Accused-1 to Sri.Ananth.
Ex.P.14 : Letter dated (not visible) written by the Accused-1 to Sri.Ashok.
44 [Spl.C.C.44/2002-J] Ex.P.15 : Certified Copy of Statement of Current Account No.355.
Ex.P.16 : Pay-in-slip dated 27.07.1983 regarding credit of Rs.92,500/- to Current Account No.355.
Ex.P.17 : Debit Voucher dated 27.07.1983 regarding Clean Bills Purchased for Rs.92,500/-.
Ex.P.17(a) : Signature of C.W.20- Smt.Ranganayaki in Ex.P.17.
Ex.P.18 : Collection Schedule dated 27.07.1983 sent by C.W.20 in respect of Ex.P.5.
Ex.P.18(a) : Signature of C.W.20 in Ex.P.18.
Ex.P.19 : Cheque dated 28.07.1983 for Rs.80,000/- issued by M/s.Vijetha Textiles.
Ex.P.19(a) : Signature of Sri.B.P.Bhat in Ex.P.19.
Ex.P.20 : Cheque dated 01.08.1983 for Rs.9,000/- issued by M/s.Vijetha Textiles.
Ex.P.20(a) : Signature of Sri.B.P.Bhat in Ex.P.20.
Ex.P.21 : Cheque Return Memo dated
02.08.1983.
Ex.P.21(a) : Signature of P.W.9 in Ex.P.21. Ex.P.22 : Collection Schedule dated 06.08.1983 sent by C.W.20 in respect of Ex.P.5.
Ex.P.22(a) : Signature of C.W.20 in Ex.P.22.
Ex.P.23 : Letter dated 18.10.1983 sent by Sri.C.K.John to ascertain fate of Ex.P.5.
Ex.P.23(a) : Signature of Sri.C.K.John in Ex.P.23.
45 [Spl.C.C.44/2002-J]
Ex.P.24 : Cheque Return Memo dated
20.10.1983.
Ex.P.24(a) : Signature of P.W.9 in Ex.P.24.
Ex.P.25 : Copy of Letter dated 26.03.1984 sent by Sri.C.K.John to M/s.Vijetha Textiles demanding repayment of Rs.78,500/-.
Ex.P.25(a) : Initials of Sri.C.K.John in Ex.P.25.
Ex.P.26 : Certified Copy of Letter dated 29.10.1983 from the Accused-2 to the Manager of Andhra bank.
Ex.P.27 : Certified Copy of Cheque dated 28.07.1984 for Rs.5,000/- issued by the Accused-2.
Ex.P.28 : Cheque Return Memo dated 31.08.1984 in respect of Ex.P.27.
Ex.P.28(a) : Signature of P.W.10 in Ex.P.28.
Ex.P.29 : Certified Copy of Letter dated 04.09.1984 issued by the Accused-2 requesting to re-present Ex.P.27.
Ex.P.30 : Certified Copy of Cheque Return Memo dated 20.09.1984 in respect of Ex.P.27.
Ex.P.30(a) : Signature of P.W.10 in Ex.P.30.
Ex.P.31 : Certified Copy of Letter dated 20.09.1985 issued by the Accused-2 on behalf of M/s.Vijetha Textiles requesting time for repayment of amount.
Ex.P.32 : Cash Transfer Voucher dated 16.08.1986 for Rs.1,38,426.35.
Ex.P.33 : Transfer Voucher dated 16.08.1986 for Rs.92,500/-.
46 [Spl.C.C.44/2002-J] Ex.P.34 : Transfer Voucher Dated 16.08.1986 for Rs.45,926.35.
Ex.P.35 : Copy of Statement of Over Draft/Cash Credit Account and Current Account No.355.
Ex.P.36 : Current Account Cash Payment Scroll Book.
Ex.P.36(a) : Relevant Entry at Pages-198 & 199 in Ex.P.36 regarding payment of Rs.80,000/-.
Ex.P.36(b) : Relevant Entry at Pages-206 & 207 in Ex.P.36 regarding payment of Rs.9,000/-.
Ex.P.37 : Cashiers' Rough Chitta Book.
Ex.P.37(a) : Relevant Entry in Ex.P.37 at Pages-72 & 73 of Rs.80,000/-.
Ex.P.37(b) : Relevant Entry in Ex.P.37 at Pages-84 & 85 of Rs.9,000/-.
Ex.P.38 : Transfer Scroll Register.
Ex.P.38(a) : Relevant Entries in Ex.P.38 at Page-
128. Ex.P.39 : Clean Bill Purchase Register.
Ex.P.39(a) : Relevant Entries in Ex.P.39 at Page-4.
Ex.P.40 : Cheques Returned Un-paid Register.
Ex.P.40(a) : Relevant Entries in Ex.P.40 at Page-
11. Ex.P.40(b) : Relevant Entries in Ex.P.40 at Page-
12. Ex.P.41 : Circular No.180 dated 06.06.1978 regarding procedure empowered by the Branch Managers.
47 [Spl.C.C.44/2002-J] Ex.P.42 : Outward Bill Register Extract.
Ex.P.42(a) : Relevant Entry in Ex.P.42 at
Sl.No.558 relating to sending of
Ex.P.27.
Ex.P.43 : Ledger Extract pertaining to
S.B.Account of the Accused-2.
Ex.P.44 : FIR dated 25.09.1986.
Ex.P.44(a) : Signature of P.W.11 in Ex.P.44.
Ex.P.45 : Copy of Application filed before I
ACMM, Bengaluru by the
Superintendent of Police on 26.09.1986.
Ex.P.45(a) : Order portion passed on Ex.P.45. Ex.P.46 : Xerox Copy of Supplementary Deed dated 08.10.1982 seized by P.W.11.
Ex.P.47 : Note Book regarding daily expenses of M/s.Vijetha Textiles.
Ex.P.48 : Search List.
Ex.P.49 : Search List.
Ex.P.50 : Search List.
Ex.P.51 : Receipt Memo pertaining to seized
documents from P.W.4.
Ex.P.52 : Forwarding Letter regarding collection
of Ex.P.43.
Ex.P.53 : Forwarding Letter regarding collection
of Ex.P.18 & Ex.P.21 to Ex.P.24.
Ex.P.54 : Self Attested Xerox Copy of Cheque.
Ex.P.54(a) : Identified Writing and Signature of Sri.R.S.Rajan in Ex.P.54.
48 [Spl.C.C.44/2002-J] Ex.P.55 : Copy of Partition Deed dated 21.11.1985.
Ex.P.56 : Seizure Memo pertaining to seizure of Ex.P.13 from the Accused-2.
Ex.P.57 : Self Attested Cheque.
Ex.P.57(a) : Identified Signature & Writing of
Sri.B.Shambu Rao in Ex.P.57.
Ex.P.58 : Self Attested Cheque.
Ex.P.58(a) : Identified Signature & Writing of
Sri.B.Shambu Rao in Ex.P.58.
Ex.P.59 : Self Attested Cheque.
Ex.P.59(a) : Signature & Writing of Sri.B.Shambu Rao in Ex.P.59.
Ex.P.60 : Kannada Letter Dated 23.05.1978.
Ex.P.60(a) : Identified Signature & Writing of Sri.B.Shambu Rao in Ex.P.60.
Ex.P.61 : Inland Letter Dated 08.06.1987.
Ex.P.61(a) : Identified Signature & Writing of Sri.B.Shambu Rao in Ex.P.61.
Ex.P.62 : Blank Pro-note.
Ex.P.62(a) : Identified Signature & Writing of Sri.B.Shambu Rao in Ex.P.62.
Ex.P.63 : Blank Pro-note.
Ex.P.63(a) : Identified Signature & Writing of Sri.B.Shambu Rao in Ex.P.63.
Ex.P.64 : Receipt Memo relating to seizure of Ex.P.57 to Ex.P.63.
Ex.P.65 : Copy of Order passed in
Crl.R.P.No.933/1988 dated
19.02.2001.
49 [Spl.C.C.44/2002-J]
Ex.P.66 : Copy of Modified Order passed in
Crl.R.P.No.933/1988 dated 24.08.2001.
3. LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE COMPLAINANT:
-NIL-
4. LIST OF WITNESSES EXAMINED ON BEHALF OF THE ACCUSED WITH DATE OF EXAMINATION:
-NIL-
5. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE ACCUSED:
Ex.D.1 : Entry made in Page-3 at Sl.No.337 in Ex.P.39.
Ex.D.2 : Certificate dated 07.04.2004.
(ASWATHA NARAYANA) XLVII Addl. City Civil & Sessions Judge & Special Judge for CBI Cases, Bengaluru.