Patna High Court
Shiv Nandan Sahay Srivastava & Anr vs State Of Bihar Thru.C.B.I on 22 July, 2010
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta
.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr. Appeal Nos. 454 of 2002 (S.J.)
1. Shiv Nandan Sahay Srivastava, S/o Sri Jagdish Narayan Lal,
resident of Mohalla-Jagarnathpur, P.S. Rajghat, Distt. Gorakhpur
(U.P.)
2. Raj Kishore Sinha, S/o Shri Saryu Sharan Sinha of D/115, P.C.
Colony, P.S. Kankarbagh, District- Patna ....... Appellants
Versus
The State of Bihar through C.B.I. ...................... Respondent
-----
With
Cr. Appeal No. 471 of 2002 (S.J.)
Madhvendra Prasad Singh, son of Late Devendra Singh, resident of
Devendra Bhawan, Gosai Tola, P.S. Patliputra, District- Patna
................... Appellant
Versus
The State of Bihar through C.B.I. ...................... Respondent
-----
With
Cr. Appeal No. 472 of 2002 (S.J.)
Rajendra Prasad Singh, son of Shri Shiv Pal Singh, resident of
Quarter No. 104, Shanti Lok, Nehru Nagar, P.S. Patliputra, District-
Patna .....................Appellant
Versus
The State of Bihar through C.B.I. ...................... Respondent
------
With
Cr. Appeal No. 477 of 2002 (S.J.)
1. Sardar Papindra Singh
2. Sardar Narendra Singh, Both sons of Late Rawel Singh, Resident
of Sarswati Apartment, S.P.Verma Road, P.S. Kotwali, District-
Patna ....................... Appellants
Versus
The State of Bihar ...................... Respondent
-----
With
Cr. Appeal No. 485 of 2002 (S.J.)
Ajay Kumar Sinha, S/o Late Bhubneshwar Prasad, resident of
Mohalla- Naya Tola Patna, P.S. Kadamkuan, District- Patna
.................... Appellant
Versus
The State of Bihar through C.B.I. ...................... Respondent
-----
With
Cr. Appeal No. 487 of 2002 (S.J.)
Rana Ranjeet Singh, son of Late Bankey Bihari Singh, at present
residing at 2H/45 Bahadurpur Housing Colony, Police Station- Agam
Kuan, District- Patna ................ Appellant
Versus
The State of Bihar ...................... Respondent
2
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Counsels for the Appellants:-
M/S Mahendra Prasad Bhartee and Ashok Kumar Yadav, Advocates
(In Cr. Appeal No. 454/2002)
Mr. Arvind Saroj, Advocate (In Cr. Appeal No. 471/2002)
Mr. R.K. Singh, Advocate (In Cr. Appeal No. 472/2002)
M/S Madan Mohan No.1, Sr. Advocate and Neeraj Madan, Advocate
(In Cr. Appeal No. 485/2002)
M/S. Chandra Shekhar, Sr. Advocate, Dilip Kumar Tiwary,
L.B.Singh,
Rana Randhir Singh and K.K.Tiwary, Advocates.
(In Cr. Appeal No. 487/2002)
Counsel for the C.B.I. in all the six cases:-
Mr. Bipin Kumar Sinha, SC, CBI
-------------
Against the judgment and order dated 17.8.2002 passed by Shri
Braj Nandan Sahay, Spl. Judge, C.B.I., South Bihar, Patna in
Special Case No. 41/87 (R.C.No. 15/87)
-------------
PRESENT
THE HONBLE MR. JUSTICE RAMESH KUMAR DATTA
R.K.Datta, J. All these six appeals have been filed against the judgment and order
dated 17.8.2002 passed by Shri Braj Nandan Sahay, Special Judge, C.B.I.,
South Bihar, Patna in Special Case No. 41/87 (R.C.No. 15/87) by which the
appellants, Raj Kishore Sinha, Madhvendra Prasad Singh, Rana Ranjit Singh,
Ajay Kumar Sinha, Shiv Nandan Sahay Srivastava and Rajendra Prasad Singh
have been convicted under Sections 420, 468, 471 read with Sections 468 and
477A of the Indian Penal Code and sentenced to undergo RI for two years
under each count and they have also been convicted under Section 120B read
with Sections 420, 468 and 477A IPC and sentenced to undergo RI for two
years; they have further been convicted under Section 5(2) read with Section
5(1)(d) of the Prevention of Corruption Act, 1947 and sentenced to undergo RI
for two years, all the sentences are to run concurrently. Appellants Sardar
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Papinder Singh and Sardar Narendra Singh have been convicted under Sections
420, 471 read with Section 468 IPC and sentenced to undergo RI for two years
under each section and they have been further convicted under Section 120B
read with Sections 420,468,477A IPC and sentenced to undergo RI for two
years; they have been further sentenced to pay a fine of Rs. 25,000/- each, in
default of which, they would have to undergo SI for a period of six months and
the sentences have been directed to run concurrently.
2. The FIR in the present R.C. Case No. 15/87-Pat dated
29.4.1987 was originally lodged for an offence under Section 5(2) read with
Section 5(1)(d) of the Prevention of Corruption Act read with Section 120B IPC
stating that Tulsi Madhav Dutta, Senior Divisional Manager, United India
Insurance Company, Patna during the period 1984-85 entered into a conspiracy
with R.P.Singh, Insurance Agent and M/s. Sabya Agency, Kankarbagh, Patna
and in furtherance of which the said Tulsi Madhav Dutta sanctioned and paid a
sum of Rs. 87,000/- to the said firm towards compensation claim on the basis of
the forged and fabricated documents resulting in wrongful loss to the Insurance
Company and corresponding wrongful gain to M/s Sabya Agency. It was
alleged that the said firm, a dealer in T.V. sets, was not insured till
30.10.1984/1.11.1984 when it was looted by miscreants but in connivance with said R.P.Singh, the officers of Punjab National Bank had managed to procure a Bank draft of Rs. 2281/- dated 27.10.1984 and used the same in obtaining a back dated insurance form. It is further alleged that the claim of M/s. Sabya Agency was received in United India Insurance Company, Patna on 12.11.1984 and despite being advised by the Dealing Assistant to refer the same to the Regional Office, Kolkata since the occurrence had taken place within a week from the date of insurance, the said Tulsi Madhav Dutta without having the power to settle the same, sanctioned and paid the said amount without seeking instructions from the Regional Office, for which recovery has been ordered from the firm by the Regional Office subsequently.
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3. After investigation the charge sheet dated 31.1.1989 was submitted by the CBI stating that after investigation it was found that the firm M/s. Saluja Agency, and not Sabya Agency as stated in the FIR, a partnership firm of Sardar Narendra Singh and Sardar Papinder Singh was looted by miscreants on 30.10.1984/1.11.1984 at which time it did not enjoy any insurance cover. The partners of the firm in connivance with said R.P.Singh, Insurance Agent, R.K.Sinha, Branch Manager, Punjab National Bank, Sampatchak Branch and Shiv Nandan Sahay Srivastava, Clerk-cum-Cashier of the Bank, obtained back dated Bank draft dated 27.10.1984 of Rs. 2281/- and used the same as premium for ante-dated insurance of the firm. Since purchase of Bank draft on payment of cash was not feasible, hence a cheque for Rs. 2500/- was issued in favour of Narendra Singh who was having an Account in the said Branch but without sufficient balance for the issuance of draft, notwithstanding the fact that the firm maintained a current Bank Account in SBI, Kankarbagh in which there was sufficient credit balance; the cheque was filled in by R.K.Sinha who got the bank draft prepared by Shiv Nandan Sahay Srivastava and signed the same. To prevent the detection of the ante-dating, various records of the Bank like ledger-sheet pertaining to SB Account of Sardar Narendra Singh, daily abstract and transfer journals were falsified by R.K.Sinha, Branch Manager and Ajay Kumar Sinha, and S.N.S.Srivastava, Clerks-cum-Cashiers in the Branch. It was found that original ledger-sheet of the SB account of Sardar Narendra Singh indicated the bank draft as having been issued on 5.11.1984 and R.K.Sinha removed the said ledger-sheet, kept the same in his house and got another ledger-sheet prepared with the help of Ajay Kumar Sinha without indicating that the same was duplicate. The original ledger-sheet was recovered from the house of said R.K.Sinha. R.P.Singh, Insurance Agent issued the Cover Note bearing No. 124892 in favour of the firm showing the period of insurance from 27.10.1984 to 26.10.1985. The bank draft of Rs. 2281/- being the amount of premium for granting insurance of Rs. 5 2,60,000/-, an undated proposal obtained from Sardar Papinder Singh along with undated cover note dishonestly and fraudulently counter signed by Madhvendra Prasad Singh, Inspector without putting date was received in the United India Insurance Company, Patna Branch-I on 12.11.1984 and Rana Ranjit Singh, the Branch Manager, fraudulently and dishonestly accepted the Cover Note and paved the way for the issue of acceptance advice on ante-dated application of Sardar Papinder Singh regarding looting of the firm received in the Branch of the Insurance Company which was seen by Arvind Prasad, Assistant Administrative Officer, P.W. 12. He put question mark and the same was brought to the notice of Rana Ranjit Singh. The Divisional Office was informed about the looting and T.M.Dutta, Sr. Divisional Manager ordered to depute Surveyor and on noting the discrepancies Shri K.K.Mishra, P.W. 10 and N.N.Das, P.W. 11, both Officers of Insurance Company were deputed to ascertain the date of issue of draft, who were deceived by Raj Kishore Sinha by showing forged papers to believe that the Bank draft was issued on 27.10.1984 and accordingly they submitted the report and on orders by T.M.Dutta, they also paid surprise visit to the firm to ascertain the extent of loss and finally payment of Rs. 87,000/-, i.e., 50% of the loss assessed by the Surveyors was ordered by T.M.Dutta and paid to Sardar Papinder Singh on 11.3.1985. On the basis of the aforesaid investigation, it was found that there was prima facie case under Sections 120B, 420, 468, 471, 477A IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act against the accused persons. All the accused-appellants were accordingly put on trial.
4. In the course of trial, the prosecution examined as many as 15 witnesses. The defence also examined two witnesses, namely, Uday Kumar, D.W.1 and Basant Paswan, DW 2. The specimen writings of the accused persons were also sent to the Government Examiner of documents, Central Forensic Science Institute, Government of India, Kolkata for comparison and the Examiner Darshan Dayal Goel was examined as P.W. 15 who found that the 6 admitted/specimen writings of the accused persons tallied with the writings on the documents sent. On the basis of the evidence on the record, the learned Special Judge, CBI came to the conclusion that the prosecution has succeeded in establishing the charges leveled against the accused persons-appellants and convicted and sentenced them as aforesaid.
5. The convict-appellants fall into three categories. In the first category are the two partners of the firm M/s. Saluja Agency, Kankarbagh, Patna, namely, Sardar Papinder Singh and Sardar Narendra Singh, who after the goods of their firm were looted in anti-Sikh riot immediately after the assassination of Smt. Indira Gandhi, Prime Minister on 31.10.1984, managed to get a back-dated bank draft of Rs. 2281/- issued from Sampatchak Branch of Punjab National Bank and used the same for the purpose of premium for getting the Insurance Cover Note for the period from 27.10.1984 to 26.10.1985 covering what were already looted goods of the firm and thereafter made the claim and got half the claim amount paid by the Insurance Company.
6. The second category of convict-appellants are Raj Kishore Sinha, the then Branch Manager, Shiv Nandan Sahay Srivastava and Ajay Kumar Sinha, both cashier -cum- Clerk at the relevant time in the Punjab National Bank, Sampatchak Branch. The allegation against them is of having conspired with the partners of the firm M/s. Saluja Agency in getting back dated bank draft for Rs. 2281/- issued in favour of the firm so that the same could be used as premium for the issuance of back dated Cover Note. In the said process they had also manipulated and forged and fabricated various records of the Branch.
7. The third and last category consists of Rana Ranjit Singh, the then Branch Manager, Branch-I, United India Insurance Company, R.P.Singh, the Rural Representative/ Insurance Agent and Madhvendra Prasad Singh, the Insurance Inspector-cum-Development Officer who had taken part in the conspiracy at the level of the Insurance Company by issuing an ante-dated 7 Cover Note for the period from 27.10.1984 to 26.10.1985, countersigning and accepting the same which resulted ultimately in half the claim, i.e. Rs. 87000/-, being paid by the Divisional Office to the firm.
8. The prosecution allegation is that M/s. Saluja Agency maintained a current account in the State Bank of India, Kankarbagh Branch, Patna in which there was sufficient money which could have been used for preparation of draft. However, since the appellants, Sardar Papinder Singh and Sardar Narendra Singh intended to get a back-dated Cover Note of Insurance prepared in respect of goods which had already been looted on 31.10.1984/1.11.1984, they took assistance of the appellants, Branch Manager and two clerks-cum-cashiers of the Punjab National Bank, Sampatchak Branch where they also had an Account. However, the account did not contain sufficient balance for the preparation of bank draft and for the said purpose, the Branch Manager, Raj Kishore Sinha used the cheque book of one Anil Kumar Singh, P.W.9, Proprietor of Ranjan Engineering Works who had a cash credit Account with the Bank and had handed over a blank signed cheque book to the Manager of the Bank; a back-dated cheque was accordingly issued from the said account of Anil Kumar Singh in favour of Sardar Narendra Singh on the basis of which the back-dated bank draft of Rs. 2281/- dated 27.10.1984 was issued in favour of the United India Insurance Company.
9. In support of its case P.W. 6 Dhirendra Narayan Prasad, cashier-cum-clerk and P.W. 7 Jai Prakash Das, Accountant-cum-Second Officer, Punjab National Bank, Sampatchak Branch have been examined by the prosecution. P.W. 6 has stated that the writings on Cheque No. 337579 of Rs. 2500/-, Ext. 3, is that of appellant, Raj Kishore Sinha, the endorsement on its back to issue draft in favour of Insurance Company has also been proved as that of the same appellant. Ext. 4,5 and 6 the Transfer Credit Voucher dated 27.10.1984 for Rs. 2281/- have also been proved to be in his handwriting and signature and posting has also been made by him. Similarly, Ext. 7, the credit 8 pay-in-slip for Rs. 2500/- has also been proved by him to be in the handwriting of R.K.Sinha. The bank draft, Ext. 8 dated 27.10.1984 for Rs. 2281/- has also been proved by him to be in the signature of R.K.Sinha and Ext. 9A Transfer Journal and its entry dated 27.10.1984 at page 96 has also been proved by him to be in the handwriting of R.K.Sinha. It is stated that the said entry is in between the entries of 26.10.1984 and 29.10.1984 and the opinion was expressed by the witness that it appears to have been inserted.
10. Similarly, P.W. 7 Jai Prakash Das has proved Exts 3 to Ext. 10C. He has also stated that the writing, signature and posting at Exts. 4 to 7 are that of appellant Raj Kishore Sinha, except the signatures of Sardar Narendra Singh therein. He has further stated that the draft Ext. 8 is in the writings of appellant Ajay Kumar Sinha; so also the Sl. 1211 at page 16 of the Local and Outward Register are in the writing of Ajay Kumar Sinha. He has further stated that the entries on Ext. 9A Transfer Journal at page 96 pertaining to 25/26.10.1984, Ext. 10A is in his handwriting and checked by him. With respect to entry made on 29.10.1984, Ext. 10B, the same is in the handwriting of Raj Kishore Sinha and Basant Paswan, checked and signed by him. With respect to entry dated 27.10.1984, Ext. 10C, it is stated by him that the same is in the handwriting of appellant Raj Kishore Sinha. He has further submitted that when he checked the entries of 26.10.1984 and 29.10.1984, then on that date the entry dated 27.10.1984 had not been made on the said page.
11. P.Ws. 8 and 10 to 13 are the Officers of the United India Insurance Company. P.W.8, Manoj Kumar Sinha was Divisional Assistant Manager in the Divisional Office, Patna of the United India Insurance Company from 1985 to 1987. He has stated that the work of insurance is carried out in two parts, the first part is underwriting which is done at the level of the Branch and the other relates to claim which is done in the Divisional Office. He has stated that the Cover Note consists of one original and four carbon copies out of which the original is handed over to the Bank or the Insurer, the 2nd and 3rd 9 copies are kept in the Branch Office and one copy each are kept by the Agent and the Development Officer. He has further deposed that it is essential to mention the date of issue in the Cover Note. He has proved the Cover Note No. 124892 and also proved the writings and signatures of appellant R.P.Singh, Insurance Agent on the same. He further deposed that neither the original Cover Note (Ext. 11) nor the two carbon copies (Exts. 11A/11B) contain the date at the relevant column or near the signature nor is the date of issue mentioned therein. He has pointed out that the two carbon copies contain the signature of the Development Officer, Madhvendra Prasad Singh and Ext. 11A the signature of the Branch Manager, R.R.Singh but they have not put the date under their signatures. He has further proved the proposal (Ext. 12). He has stated that the Cover Note along with two carbon copies is sent to the Branch Office along with the proposal form and premium in the form of cash, cheque or draft. He also stated that the proposal form of M/s. Saluja Agency was sent with the carbon copy of the Cover Note. The proposal contained the signature of the Branch Manager, R.R. Singh below which the date 12.11.1984 has been mentioned which has been exhibited as Ext. 12. He has also proved the claim file, Ext. 13 of M/s. Saluja Agency maintained in the Divisional Office of the Insurance Company and the money receipt for Rs. 2281/- bearing the signature of Arvind Prasad (PW 12, the then AAO) as Exts. 12A and 12B. He has further proved the signatures on the various notes contained in the said file by different officials. In his cross-examination this witness has stated that the Inspector/Development Officer is fully competent to issue the Cover Note and it must contain his counter signature. He has stated that the Branch-I is a very big Branch and is number one or number two Branch of Bihar by size. (He has deposed in 1994, prior to re-organization of the State). He has admitted that he was Branch Manager in the said Branch in 1982-83 and at that time a large number of documents were received by post every day and he used to put his initials over the same which signature is in token of receipt of the paper. He has 10 further stated that on every bunch of documents initials and dates are given but on other pages the dates are not necessarily given. If the Branch Manager was busy, then the documents received by post were signed at times by the AAO or by an authorized Assistant also as token of receipt of the same and thereafter it was sent to the concerned sections for further action. The concerned Department used to examine the documents and make entries in the Register and thereafter acceptance of advice was made and was placed before another Officer. He has further stated that the acceptance advice in the present case was prepared on 12.11.1984 by Arvind Prasad, (PW 12). Thereafter it was sent to the Accounts Department and on all the documents being checked, the money receipt was made and after that it was sent to the concerned Department for preparing the policy. He has also admitted in his cross-examination after looking at Ext. 13 that in the present case after the documents were received from the Rural Representative/ Mufassil Inspector, Appellant Rana Ranjit Singh has not done any work with respect to Acceptance Advice and Money Receipt. He has further deposed that in the present matter the policy was never prepared. He has also stated that issuance of advice means that the company has accepted the business finally and the underwriter has also accepted it. He has stated that it is the Development Officer who is alone and totally responsible for agreement, commitment, transaction and acceptance. He has also stated that the payment in the present matter was made by the Senior Divisional Manager, T.M.Dutta and after him Rana Ranjit Singh took over charge as the Divisional Manager and he had recommended the matter to be fully investigated again by sending telegram to the Regional Office by appointment of another Surveyor. He has also stated that before allowing the claim the matter ought to be fully investigated at the level of the Divisional Office and only if everything is found to be in order, the claim should be given.
12. P.W.10, Kaushal Kishore Mishra was, at the relevant time, Branch Manager of Branch-II of the Insurance Company and P.W. 11, 11 Narendra Narayan Das was an Assistant Administrative Officer in the Divisional Office. They have deposed that they had been deputed by T.N.Dutta to enquire regarding the date of preparation of the draft from the Sampatchak Branch of Punjab National Bank. Both of them had gone there and had been told by the appellant, R.K.Sinha, Branch Manager that the draft had been prepared on 27.10.1984. They have also stated that the Transfer Journal was shown to them and the same was clearly written whereas the Transfer Journal which has been produced in Court, Ext. 9/A is having interpolations and the same was not shown to them. They have also stated that they gave their report dated 17.12.1984 (Ext.17). They have also stated that the entries in the Transfer Journal produced in Court shows interpolations which were not there in the Transfer Journal shown to them by the Branch Manager. They have further stated that they enquired regarding the postal receipt of the registered post through which the Bank draft was sent to the Bank but the postal receipt was not shown to them. It is also stated that they made query to the Branch Manager as to what interest he had with regard to the business as it was not clear for what purpose the Branch had sent the draft by incurring postal expenses. It was only after 2-3 days of their visit that it was informed that Xerox copy of the postal receipt dated 27.10.1984 was handed over which was marked as Ext. 22.
13. P.W.12, Arvind Prasad was the then Assistant Administrative Officer in the Branch-I of the Insurance Company. He has proved his signature on Acceptance Advice, money receipt, claim intimation slip, etc. He has also stated that on receipt of the proposal along with cover note, etc. it is the duty of the Branch Manager to see that it is filled up properly and only thereafter to send it to the office. It is stated that the proposal form had been accepted by the Branch Manager-appellant, R.R.Singh. He has also stated that the Rural Representative R.P.Singh had received the premium in the present matter without authority as he had no authority to issue the Cover Note. 12
14. P.W.13 is an Officer of the Insurance Company who has proved the signatures of various Officers of the Company including the report of the Surveyor. In his cross-examination he has stated that Cover Note can be issued by the Development Officer or the duly authorized agent of the Company as per rule. He has also supported the procedure followed in the Branch office of the Insurance Company in this regard as stated by P.W. 8. He has stated that the proposal along with the Cover Note, draft, etc. on receipt by post are put up before an Officer of the Branch, like the Branch Manager or the Officers posted there, who is required to put his signature and date and then send it to Section and thereafter the sections scrutinize the proposal form, Cover Note, Bank draft, etc. and then entry is made in the premium Register and number is allotted.
15. P.W. 9 Anil Kumar Singh is the proprietor of Ranjan Engineering Works from whose Bank Account the cheque of Rs. 2500/- was issued for transfer to the Account of appellant, Sardar Narendra Singh. He has been declared hostile as he has stated that he had not handed over signed cheque book to the Branch Manager. He was cross-examined by the prosecution in which he has admitted that he cannot read or write English. He could only recognize his signature and date 27.10.1984 on the concerned cheque (Ext.3) but could not say as to what was written in English on the said cheque. He has further admitted in the cross-examination by the prosecution that he has never had any business transaction with M/s. Saluja Agency although on cross- examination on behalf of Raj Kishore Singh, he has stated that on 27.10.84 he had purchased a portable T.V. and Stabilizer from the T.V.shop M/s. Saluja Agency for which he had given a cheque of Rs. 2500/- in lieu of that and since he did not know English, therefore, he used to get the cheque filled up by the Bank officers and others. He has also alleged that the I. O. had forced him to sign on all the pieces of the blank cheques and it was taken from him and not seized from the house of Raj Kishore Singh. He has denied that he had made any statement to the contrary before the CBI.
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16. P.W. 14 Radha Kant Choudhary, Deputy Superintendent of Police is the Investigating Officer of the case. He has stated that P.W.9 Anil Kumar Sinha had stated before him that after opening his account in the Punjab National Bank its Manager, R.K.Singh had got the cheques signed by him and kept it with himself from which the concerned Cheque No. 337579 dated 27.10.84 for Rs. 2500/- had been issued in favour of appellant, Sardar Narendra Singh.
17. P.W. 15, Darshan Dayal Goel is the Government Examiner for questioned documents, Hyderabad who has examined the specimen/admitted writings of all the appellants except R.R.Singh with the questioned writings of the said appellants on the various documents which had been sent to him by letter Ext. 32. His opinion is Ext.33 and the reasoning of opinion is Ext. 34. He has found that the specimen/admitted writings of the concerned appellants tallied with the questioned writings of the concerned documents. The accused persons declined to cross-examine him.
18. P.W.2, P.W.4 and P.W.5 are officers of Punjab National Bank who have proved the sanction orders with respect to the appellant- Officers/employees of the Punjab National Bank and P.W.3 has proved the sanction orders with respect to the concerned appellants of the Insurance Company. The sanction orders have been marked as Exts.2 to 2/C.
19. The defence has examined two witnesses in its support. D.W.1 Uday Kumar is an Advocate Clerk who has exhibited the signature of appellant R.R.Singh at pages 4 and 5 of the Cover Note Issue Register with respect to Cover Note Nos. 124851 to 124900.
20. D.W.2, Basant Paswan was Clerk-cum-Cashier in Punjab National Bank, Sampatchak Branch from 1980 to 1987. He has proved the entry made on 27.10.84 in the Draft Issue Register from 18.8.1980 to 12.5.1986, Ext. B which is in the handwriting and signature of Raj Kishore Sinha, as also the entry dated 27.10.1984 in the General Register, Ext.C which 14 is in his handwriting and contains the signature of Raj Kishore Sinha. He has also proved the carbon copies of two drafts no. 81 and 82 of 84 both dated 27.10.1984. The draft no. 81/84 for Rs. 1680/- and draft No. 82/84 for Rs. 2281/-, Ext.D and D/1, both in favour of M.D., United India Insurance Company are stated by him to be in the handwriting of appellant Shivnandan Sahay Srivastava and signed by Raj Kishore Sinha. He has also proved the entry dated 27.10.1984 (Ext. E) in the Transfer Analysis Register of 9.8.1984 to 15.12.1984 (Ext.F) which is in his writing and bears his signature. He has also proved the entry dated 27.10.84 in the Voucher Register of 18.6.1980 to 31.12.1994 which is in the handwriting of Pramod Bihari, Daftari and contains signature of Raj Kishore Sinha. He has also produced 15 daily extract slip books Ext. G to G/14 of various dates, i.e., 13.10.1984 to 13.6.1987.
21. Learned counsels for the appellants have argued that the prosecution has failed to establish any conspiracy in the matter and whatever have been done for the issuance of draft, preparation of insurance proposal, issuance of cover note and finally its acceptance and payment of claim, have been done in the usual course of business. It is further argued that a large number of documents of the bank have been produced, mainly by the prosecution and some by the defence, and most of the said documents do not contain any cutting or interpolation which goes to show that the draft had been issued on 27.10.1984 itself. It is urged that on 27.10.1984 two drafts were prepared - one for Rs. 1680/- in respect of premium for another cattle insurance and the other draft of Rs. 2281/- concerning the present matter which was for the purpose of premium of the insurance policy involved in this case. It is urged that nothing untoward has been reported with respect to the other draft. Both the drafts were sent by the same postal registered envelope and were received together in the concerned branch of the Insurance Company. The photocopy of the postal receipt with respect to the same has also been exhibited and thus the entire transaction has to be accepted as having taken place on 27.10.1984. In the 15 said circumstances, there would be no question of any wrong having been committed in the issuance of the draft as also of the proposal and cover note accompanying it and the consequential acceptance of the claim of the appellants Sardar Narendra Singh and Sardar Papinder Singh.
22. It is urged by learned counsels for the appellants bank employees that the main reason for holding the issuance of draft as having been manipulated is on account of entries (Exts. 10 to 10/C) at page 96 of the Transfer Journal.(Ext. 9/A). Learned counsels submit that the dispute has been raised only with respect to entry no. 1 Ext. 10/C and the other entries are not in dispute and not challenged and thus the entry no. 1 should also be accepted as valid. Learned counsel also sought to rely upon certain cuttings and smaller writings in the transfer journal on certain other pages in support of his stand that it was not unusual for such cuttings and smaller writings to be present in the Transfer Journal.
23. Learned counsels have also assailed the manner in which the investigation was conducted and certain seized documents deliberately not produced by the CBI which would have helped the case of the appellants. They have also assailed the non-examination of witnesses to prove the recovery of cheque books of Anil Kumar Singh and ledger sheet of Sardar Narendra Singh from the house of the appellant, Raj Kishore Sinha.
24. Learned counsel for the appellant Raj Kishore Sinha, Branch Manager, Punjab National Bank, Sampatchak Branch has further sought to emphasise the fact that he was even exonerated in the departmental enquiry held against him.
25. Learned counsel also sought to rely upon the Draft Book (Ext.D) and Draft Issue Register (Ext. B) in support of his plea that the drafts at Sl. Nos. 81 and 82 were issued on 27.10.1984, whereas the draft at Sl. Nos. 80 and 83 had been issued on a previous and a subsequent date and thus it has to be held that the draft in question was issued on 27.10.1984. 16
26. Learned counsels have also sought to argue that the fact that the cheque issued to Sardar Narendra Singh by Anil Kumar Singh, P.W. 9 had been filled up by the appellant Raj Kishore Sinha, Branch Manager, cannot be taken against him as it was the policy of the Bank to help its customers and the same was done in pursuance to the said policy.
27. Learned counsels contended that the mere presence of alterations/mistakes/cuttings/overwriting etc., in some of the documents cannot be held against the appellants as due to inadvertence and oversight of the bank employees such cuttings/ alterations/overwriting take place and there are provisions in the Bank rules and directions in the Books of Instructions to correct any mistake by making initials on the said cuttings/alterations during checking of the accounts/ledgers by the concerned checking officials.
28. Learned counsel for the appellant, Raj Kishore Sinha and Shiv Nandan Sahay Srivastava have also assailed the sanction order against them. It is urged by learned counsels that sanction order with respect to Raj Kishore Sinha has been issued by the Assistant General Manager, Patna who is not the competent authority rather it is the Deputy General Manager who was competent to grant sanction in his case. With respect to Shiv Nandan Sahay Srivastava, it is submitted that he was a cashier in Sampatchak Branch, Patna which is in the region and zone of Patna whereas the sanction had been accorded by the Regional Manager, Branch-3, Gorakhpur Zone who was not competent to grant the sanction.
29. Learned counsel further submits that there is no evidence either oral or documentary against the appellant, Shiv Nandan Sahay Srivastava and the sanction order against him also suffers from non-application of mind. It is urged that the sanction order states that it has been granted because he was the author of preparation and issuance of draft whereas P.W. 7 has stated in para-4 that the writing on the draft is of appellant Ajay Kumar Sinha and he is also the issuing authority. It is urged by learned counsels that in the provisions 17 of Section 6 of the Prevention of Corruption Act, 1947, the grant of sanction was essential and in the absence of the same, the trial against the accused would be vitiated. In support of the aforesaid propositions, learned counsel relies upon a decision of the Supreme Court in the case of Romesh Lal Jain Vs. Naginder Singh Rana and others: (2006) 1 SCC 294, in the relevant part of para-14 of which it has been held as follows:-
"It is also beyond any cavil of doubt that an order granting or refusing sanction must be preceded by application of mind on the part of the appropriate authority. If the complainant or the accused can demonstrate such an order granting or refusing sanction to be suffering from non-application of mind, the same may be called in question before a competent court of law.............."
30. It is further submitted that the question of sanction can be raised for the first time even at the stage of appeal as has been held by the Apex Court in the case of State of Karnatka through CBI Vs. C. Nagarajaswamy: (2005) 8 SCC 370, in paras- 14 to 16 of which it has been held as follows:-
"14. Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefore or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service. "
15. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regards sanction may be determined at an early stage. (See Ashok Sahu V. Gokul Saikia: 1990 Supp SCC 41: 1990 SCC (Cri) 611 and Birendra K. Singh V. State of Bihar: (2000) 8 SCC 498: 2001 SCC (Cri) 17: JT (2000) 8 SC 248)."
18
16. But, even if a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an appellate court.(See B.Saha V. M.S. Kochar: (1979) 4 SCC 177: 1979 SCC (Cri) 939 SCC para 13 and K.Kalimuthu V. State: (2005) 4 SCC 512:
2005 SCC (Cri) 1291."
31. He also relies upon a similar proposition laid down by the Apex Court in the case of Prakash Singh Badal and another Vs. State of Punjab and others: (2007) 1 SCC 1.
32. Learned counsel for the appellant Ajay Kumar Sinha, Cashier-cum-Clerk in the Bank has, in addition, sought to argue that the appellant has not contributed in any manner in the commission of the crime as he has not prepared any document used in commission of the crime. It is urged by him that the mere fact that he had prepared a credit extract (Ext. 2/B) in respect of 27.10.1984 in which he has indicated the transaction of transfer as NIL and subsequently prepared another credit extract in respect of 27.10.1984 showing therein, among others, transaction pertaining to issue of bank draft of Rs. 2281/-, is not sufficient for him to be made liable in the conspiracy.
33. Learned counsel for appellant Rana Ranjit Singh, the then Branch Manager, United India Insurance Company, has mainly sought to argue that this appellant cannot be held liable for any conspiracy as the Branch Manager since the only act performed by him was to sign on the papers put up before him on receipt by post in the course of which he had put his initials along with the date on the first page, i.e., on the proposal and initials on the other pages including the cover note. It is urged by learned counsel that the Branch-I of the Insurance Company has been admitted in the cross-examination by the prosecution witnesses as being among the largest Branch in the undivided State of Bihar and the function of the Branch Manager was a mere routine function of receiving and signing the papers put up before him as token 19 of the same having been received in the Bank and such initials are made by the Branch Manager only if he is present in the Branch and otherwise in his absence by any authorized officer or a specifically authorized Assistant. It is submitted that the putting of the date along with the initial on the first page alone is required in order to show when the papers have been received in the Branch and the other papers including the copies of the cover note are merely initialed to ensure that any new paper is not introduced with the collusion of the office.
34. It is submitted by learned counsel that the procedures have been elicited from the witnesses P.Ws. 8 and 13, Officers of the Insurance Company who have stated that after the putting of initials the papers are sent to the concerned Sections for being scrutinized and examined and taking further action in the matter. Learned counsel submits that from the deposition of the P.Ws. it is crystal clear that the proposal and cover note were prepared by the rural representative, signed by the Development Officer and after being received by post it was placed before appellant Rana Ranjit Singh as the Branch Manager as an office routine work. After putting his initials on each page and date on the first page, it was no part of his duty to scrutinize the same and he was only required to send it to the Section which was done. Thereafter P.W. 12 Arbind Prasad, the then Assistant Administrative Officer had after scrutinizing prepared the acceptance advice, issued the money receipt and prepared intimation slip and sent the same to the Zonal Office which was received by T.M.Dutta, the Divisional Manager who had ultimately directed the payment of half of the claim. Learned counsel submits that P.W. 8 further clearly admitted that claim papers were never produced before the appellant Rana Ranjeet Singh and no further authorization was taken from him by P.W. 12, Arbind Prasad for processing and approving the same. Learned counsel further contends that the claim was settled by the Divisional Office without receipt of Insurance Policy from his Branch, whereas P.W. 11 has admitted that no payment could be made without issuance of policy which was never prepared 20 by his Branch. In the said circumstances it is urged by learned counsel that this appellant has been wrongly implicated in the case and no case of conspiracy is made out against him for having merely performed the routine function of receiving the papers as the Branch Manager.
35. Learned counsel for appellant, Madhvendra Prasad Singh, Development Officer, United India Insurance Company submits that the only allegation against him is that he had put his counter signature on the carbon copies of the cover note, Exts. 11/A and 11/B. It is submitted by him that he had merely counter signed because the agent was under him and his number was there in the cover note. It is also contended that P.Ws. 10 and 11 who had been sent by the Divisional Manager to enquire about the matter in the Branch of the Bank did not find anything against him. It is further submitted by him that he has not put any date on the signature on the cover note as it had already been accepted by the Branch Manager. Thus, it is urged that this appellant had no role in the issuance of proposal or cover note or in payment of any claim and cannot be held guilty of any conspiracy.
36. Learned counsel for the appellant, Rajendra Prasad Singh, Insurance Agent/Rural representative strongly relies upon the postal receipt in support of his stand that neither the Bank draft nor the cover note were ante-
dated. According to learned counsel, the postal receipt demolishes the prosecution evidence against this appellant. He has also challenged the seizure list stating that it has not been proved by any independent witness.
37. Learned counsel for the appellants Sardar Papinder Singh and Sardar Narendra Singh has merely adopted the arguments of learned counsel for the other appellants.
38. Learned counsel for the CBI, on the other hand, submits that it is evident from the oral and documentary evidence produced by the prosecution that the charge of conspiracy has been duly proved against the accused persons. Learned counsel placed great reliance upon the entries (Exts. 21 10 to 10/C) at page 96 of the Transfer Journal (Ext. 9A) which, according to him, goes to show that the bank draft was prepared much after the incident of looting of the shop of M/s. Saluja Agency in furtherance of the conspiracy to enable the appellants Sardar Papinder Singh and Sardar Narendra Singh to make and obtain a false claim from the Insurance Company. It is urged that a bare look at page 96 of Ext. 9A shows that the entry with respect to bank draft of Rs. 2281/- has been manipulated and interpolated in between the entries of 26.10.1984 and 29.10.1984 and in the entire Transfer Journal no similar manner of entry is to be found on any other page.
39. Learned counsel also relies upon seizure of a large number of incriminating documents from the house of appellant Raj Kishore Sinha, Bank Manager, among which were a duly signed cheque book of Ranjan Engineering Works as also original ledger sheet with respect to the Current A/c. of Ranjan Engineering Works as per which it was evident that the bank draft had been actually prepared on 5.11.1984 after the incident of looting on 31.10.1984/1.11.1984.
40. Learned counsel also emphasizes the fact that 27.10.1984 was a Saturday and therefore, half working day for Banks and Post Offices, and the very short period within which so much of work are alleged to have been done. He submits that the filling up of the cheque and various forms by the Branch Manager itself goes to show that the same has been done pursuant to the conspiracy. It is urged that the P.W. 7 had admitted that help is only given to illiterate persons in filling up the cheques and forms whereas it is not the case of the defence that Sardar Narendra Singh was an illiterate person as he has signed his name in English at many places and therefore filling up of form on his behalf by the bank officials in the normal course does not arise.
41. Great reliance has also been placed by learned counsel on the opinion of the Government examiner of questioned documents who has found the admitted/specimen writings of the various accused persons as tallying with 22 the documents in question and also given his reasons in his opinion which have not been disputed by the accused persons.
42. Learned counsel in this regard submits that it is not correct to say that there is no documentary evidence against Shiv Nandan Sahay Shrivastava as in Ext. 3 question no. 21 the handwriting expert has found the specimen writings tallying with the handwriting of Shiv Nandan Sahay Srivastava on the draft in question. Learned counsel submits that opinion of the handwriting expert accompanied by good reasons which have not been challenged, is entitled to great weight as has been held by the Apex Court in the case of Murarilal Vs. State of M.P.: AIR 1980 SC 531, in para-11 of which it has been held as follows:-
"11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an hand writing expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted. "
43. It is also submitted that appellant Ajay Kumar Sinha, Cashier-cum-Clerk had played a role in the matter as he had manipulated the connected documents including the credit extract pertaining to the issuance of draft of Rs. 2281/- on 27.10.1984 after showing the transaction by transfer as 23 NIL on that day in the earlier credit extract (Ext. 2/B) prepared in respect of 27.10.1984.
44. Learned counsel for the CBI, also submits that the seizure list with its documents had been exhibited without objection and thus no challenge to the seizure from the house of R.K. Sinha can now be raised and further that once the document has been exhibited without objection, the contents should also be admitted. In support of the same, he relies upon a decision of the Supreme Court in the case of P.C. Purushothama Reddiar Vs. S.Perumal: AIR 1972 SC 608, in para-19 of which it has been held as follows:
"19. It was next urged that even if the reports in question are admissible we cannot look into the contents of those documents. This contention is again unacceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence."
45. Learned counsel also urges that the prosecution case cannot be rejected on the ground of any deficiency in investigation as has been laid down by the Supreme Court in the case of Mahendra Singh Vs. State of M.P.:
2007 (3) PLJR (SC ) 29, in para-12 of which it has been held as follows:-
"12. It may be true that the chappal and blood stained clothes of PW 1 were not seized but it is also well-known that deficiency in investigation shall not stand in the way of the court in arriving at a finding of guilt if it is otherwise found to have been proved. [See Rotash Vs. State of Rajasthan, 2006(13) SCALE 186 and Acharaparambath Pradeepan and Anr. Vs. State of Kerala, 2006(13) SCALE 600]"
46. Learned counsel for the CBI also submits that the plea regarding improper sanction had to be taken at the earliest before the trial court itself but the same not having been done it should not be permitted at the stage of appeal. Even the said pleas are devoid of any substance according to him. It is urged that appellant Shiv Nandan Sahay Srivastava filed I.A. No. 742/2003 in 24 the present appeal with respect to certain actions of Senior Regional Manager but he did not challenge his authority to issue the sanction order even in the said interlocutory application and thus the sanction by him is valid. With regard to Raj Kishore Sinha, Branch Manager, it is submitted that sanction order has been issued by Shri R.K.Rehani, Deputy Zonal Manager, Bihar Zone, who was an officer of Assistant General Manager rank, which is in accord with the circulars of the Bank dated 24.8.1981 under which the disciplinary authority for officers in Middle Management Grade Scale II and III is AGM/DGM, and also that dated 20.12.1984 which provides that the disciplinary authority for the officers in Junior Management Grade Scale I and Middle Management Grade Scale-II posted in Zones is AGM (Zone).
47. Learned counsel also submits that there was serious lapse on the part of the rural representative appellant Rajendra Prasad Singh in issuing the cover note as under the general insurance law and practice the previous and the present insurance history of the party has to be considered which was evidently not done. According to him, as per the report of the second surveyor the stocks of T.V. etc. itself were not in existence on 27.10.1984 in the shop of M/s. Saluja Agency and had been received only on 31.10.1984 and thus the issuance of insurance cover without even an inspection of the shop, goes to show the conspiracy committed by the insurance agent, R.P.Singh as the same was in complete violation and defiance of the provisions of the law and practice relating to general insurance. For the same reason it is urged by him that Madhvendra Prasad Singh, the Development Officer, under whom the rural representative was functioning and who had also signed the cover note, is equally guilty.
48. Learned counsel also argues that the Branch Manager appellant Rana Ranjit Singh had the sole responsibility if any wrong was committed. As Branch Manager he never reported the matter and only subsequently as Incharge Divisional Manager he took steps in the matter. 25 According to learned counsel the appellant R.R.Singh had accepted the cover note by initialing the same and he must be equally held liable for the conspiracy.
49. I have perused the judgment of the trial court, oral and documentary evidences and also considered the rival submissions of the parties. So far as the question of sanction raised with respect to the bank officials is concerned, the mere fact that it has been held by the Apex Court that in certain cases the question of proper sanction may be raised even at the stage of appeal does not mean that the same ought not to be raised at the earliest. Admittedly no such point was taken before the trial Court and for the first time at the stage of arguments in appeal the said point has been raised. At the outset I must make it clear that so far as the charge regarding non-application of mind is concerned, from the perusal of the sanction orders it is evident that there was a proper application of mind to the facts of the case as they are in accord with what was found by the investigating agency on the conclusion of the investigation. Merely because certain statements have been made subsequently in the course of the trial by one of the prosecution witness, which may not tally with the findings during the investigation (whether inadvertently or otherwise) it cannot be held that the authority granting the sanction on the basis of the facts placed before him, had not applied his mind. Thus, the ground of non-application of mind while issuing the sanction order has no merit.
50. So far as the question as to whether the proper authority had granted the sanction is concerned, it is evident that the sanction order with respect to appellant, Raj Kishore Sinha, the Branch Manager has been issued by the Dy. Zonal Manager, Bihar Zone, who was an officer having the rank of AGM which is the requirement as per the aforesaid circulars dated 24.8.1981 and 20.12.1984 relied upon by learned counsel for CBI.
51. So far as the sanction order against the appellant Shiv Nandan Sahay Srivastava is concerned, the same has been issued by the 26 Regional Manager, Gorakhpur who is a competent authority to take disciplinary action against a clerk-cum-cashier of the Bank. For the said reasons, the sanction orders are held to be valid.
52. The most important issue in coming to a conclusion whether there was a criminal conspiracy would be as to whether the draft in question for Rs. 2281/- as premium for the insurance policy, was prepared on 27.10.1984 or not. It is evident that the appellants partners of M/s. Saluja Agency, Sardar Narendra Singh and Sardar Papinder Singh were having an account with the Kankarbagh Branch of the State Bank of India in which there was sufficient money for the preparation of the draft in question. Their shop M/s. Saluja Agency was also located at Patna, the date in question 27.10.1984 was a Saturday on which date the banks and post offices would be open only during the first half. On the other hand, Sampatchak where the Branch of Punjab National Bank is located from which the draft was ultimately prepared, is not located within the city of Patna, though within Patna district, and is at a sufficient distance from the city area as to cause serious inconvenience to any one wishing to get a draft prepared for the purpose of using the same as a premium for a Traders Combined Insurance Policy, that too on a Saturday. More so, in the present matter the appellants Sardar Narendra Singh and Sardar Papinder Singh did not have sufficient money in the said Sampatchak Branch of Punjab National Bank. The appellants were also not having any Traders Combined Insurance Policy from before either from the United India Insurance Company Limited or of any other Insurance Company. All of a sudden on 27.10.1984 they become so concerned about getting the said policy and a series of fortunate coincidences allegedly took place. It has come in the evidence of P.W. 9 Anil Kumar Singh, proprietor of Ranjan Electric Works, who has been declared hostile, that he had no business dealings with M/s. Saluja Agency or its partners but on 27.10.1984, he purchased a T.V. and a Stablizer for Rs. 2500/- from them for which he issued a cheque of Rs. 2500/- to them. He has, 27 however, not produced any voucher or receipt showing the purchase of the said articles. How he issued the said cheque is again very interesting. Admittedly, P.W. 9 cannot write or read. He was far from being able to fill up the cheque (Ext. 3). He could not even read what was written on the said cheque when it was shown to him in Court. He could only recognize his signature and the date 27.10.1984, but could not say as to what was written in English on the said cheque. He further says that since he did not know English therefore he used to get filled up the cheques by the Bank Officers. Another interesting fact is that the said Current Account was of Ranjan Engineering Works and as a business it was enjoying the cash credit Account with the Bank; instead of paying for the T.V. and Stablizer with respect to what was evidently not a business transaction either in cash or from his own private account, he issued a cheque from the Cash Credit Account of M/s. Ranjan Engineering Works. Since the cheque has been proved to be written in the handwriting of the Branch Manager, Raj Kishore Sinha, appellant, therefore P.W. 9 either issued a blank cheque without filling up the amount, etc. which is very unlikely or he went with appellant Sardar Narendra Singh to the Sampatchak Branch, which is equally unlikely considering the distance involved, and is not the case of the accused persons also or of P.W.9. Immediately, on receipt of the said cheque, it appears that the appellant Sardar Narendra Singh rushed to Sampatchak Branch located at such distance from his place of business for the purpose of getting a draft issued for the payment of insurance premium instead of approaching his Bank nearby; and there the draft of Rs. 2281/- was prepared; the draft application form and requisite forms, etc. were not filled up by him but by the Branch Manager, appellant Raj Kishore Sinha and he merely signed the same in English. It is not the case of the appellant that he did not know how to fill up the forms. The stand on behalf of the Branch Manager is that they were required to help the customers. P.Ws. Bank official and employees on the other hand, stated that the requirement was only to help illiterate persons which Sardar Narendra Singh is 28 not. The draft was prepared, posted and at the same time, the Insurance agent appellant, Rajendra Prasad Singh also appeared in the Bank, prepared an undated cover note and then instead of personally depositing the same in the Branch of the Insurance Company sent the same by post allegedly through peon of the Bank. From Ext. 17, the report of the PWs. 10 and 11 dated 17.12.1984, it is evident that when they went to the Sampatchak Branch of the Punjab National Bank on 1.12.1984 they were informed by appellant Rajendra Prasad Singh that he had sent the draft by post to the Branch office of the Insurance Company with the help of the Peon of the Bank whereas the Bank Manager told that both the drafts were sent to the Branch Office No.I by the Bank only and when asked what interest he had in sending the draft of a private party, the Bank Manager justified his action by telling that it would have been improper on the part of the Bank to send the draft of a private party to the Insurance company, hence he sent the draft in the same envelope which carried the other draft involving the Bank and this was done on account of the personal relationship the insured had with the bank as its customer, which reason was not found very fair by the said P.Ws. in their report. When P.Ws. 10 and 11 asked the Branch Manager to produce and give a Photostat copy of the postal receipt, he could not do so immediately and it was handed over to the Insurance Company four days later on 5.12.1984 by the insured appellant and not by the Bank. From the appearance of the purchaser of T.V. and Stabilizer, P.W. 9, the issuance of cheque in English which he did not write himself for Rs. 2500/- by him, then rushing to the Bank at distant Sampatchak by appellant Sardar Narendra Singh and preparation of the draft there in which even the application, etc. was written by the Bank Manager and not by the customer applying for draft, and preparation of insurance proposal and cover note were managed to be done on a Saturday which is a half working day including the uncalled for sending of the same through the post office. The very sequence of events and the manner in which it had happened indicates the improbability of the same 29 happening. Even in the doing of the same there is violation of the norms or practice by them including the bank officials and the rural representative appellant Rajendra Prasad Singh. It has been noted in the above report of P.Ws. 10 and 11 that without receiving the bank draft, the rural representative could not have handed over the cover note to the Bank; even the factum of sending the draft and the papers through the alleged registered post are contrary to the practice of the bank.
53. The aforesaid unlikely sequence of events have not only come up in the course of oral and documentary evidence. The entries (Exts. 10 to 10/C) at page 96 of the Transfer Journal (Ext. 9/A) are a huge give away. I have closely examined the entries at page 96 as also other pages of the said Transfer Journal; at page 96 there are entries of four separate dates. On most pages of the said Journal the entries are of one date only and sometimes of two dates and at page 89 there are entries of three dates and only at page 142 of the said Journal there are entries of four dates, but they are quite distinct and separate and not closely together as at page 96. Moreover, at no page more than two entries are to be found in a single horizontal column except at page 96 with respect to entries dated 27.10.1984. The said fact itself proves the unusual manner in which the draft came to be issued and is sufficient to indicate that the entries pertaining to 27.10.1984 are interpolations and manipulations.
54. Apart from the above, there are several other documents which corroborate the fact that the entries were made subsequently including the original credit extract (Ext. 2/B) in respect of 27.10.1984 prepared by appellant Ajay Kumar Sinha, Cashier-cum-Clerk in which he has indicated the transaction as Nil in respect of 27.10.1984 but later on in another credit extract of that date the said transaction relating to issuance of Bank draft of Rs. 2281/- was shown. The fact of manipulation has been clearly stated by P.W. 7 who was the Second Officer of the Branch and had checked the entries at page 96 of the Transfer Journal pertaining to 26.10.1984 and 29.10.1984 and when he had 30 done the same on 29.10.1984, the entries of 27.10.1984 (Ext. 10/C) were not there. The manipulations are also corroborated by the recovery of documents seized by the CBI from the house of the Branch Manager, Raj Kishore Sinha.
55. It is evident from analysis of the evidence and the documents that the entire stand of the draft having been prepared on 27.10.1984 is false and unbelievable. It is evident that the draft was prepared subsequently after the alleged incident of looting had taken place on 31.10.1984/1.11.1984 in the anti-Sikh riots after the assassination of late Prime Minister Indira Gandhi. The extremely active role of appellant Raj Kishore Sinha, Branch Manager in making the large majority of the entries pertaining to the application for and issuance of the draft goes to show that he was the king- pin in the conspiracy. The contention of learned counsel for the appellant, R.K.Sinha that he was exonerated in the departmental enquiry which proves his innocence is of no consequence as substantial oral and documentary evidence have been brought on the record against him by the prosecution in proof of his guilt. The role of appellant Ajay Kumar Sinha is also clear from the fact that he manipulated certain connected documents specially by replacing the original credit extract of 27.10.1984 which showed the transaction on that date as Nil by another in order to show the subsequent credit extract, the transaction relating to issuance of draft of Rs. 2281/-. The said facts are corroborated by the evidence of handwriting expert.
56. The handwriting expert has also given his opinion regarding the specimen and admitted writings of appellant Shiv Nandan Sahay Srivastava on the draft in question but PW 7 has stated that the said writings are of appellant Ajay Kumar Sinha. This brings about a contradiction in the evidence of the handwriting expert and the oral evidence in the matter. Although in Murari Lal's case (supra), the Supreme Court has held that it is not necessary that opinion evidence of handwriting expert must be substantially corroborated but it has also held that where there is evidence 31 throwing doubt on the said opinion then the same may not be accepted and the question is essentially of testimonial weight. In my view, although the charge against appellant Shiv Nandan Sahay Srivastava is that he had forged the bank draft and other connected records but the contradiction between the oral evidence of PW 7 and the opinion of the handwriting expert, P.W. 15 entitles him to the benefit of doubt as it cannot be held that the prosecution has succeeded in establishing the charge against him beyond reasonable doubt.
57. In view of the finding that the draft itself was ante-dated, it is evident that appellant R.P.Singh, the rural representative has also prepared the ante-dated proposal and cover note which was shown to have been sent by registered post on 27.10.1984 itself whereas there would be no occasion for him to send the same by registered post that too without obtaining the draft from the bank and having the insurance papers sent by the Bank along with another draft relating to cattle insurance. If it was so convenient for the insured to have taken all these steps on 27.10.1984 to get the draft prepared and insurance papers prepared on a half working day then certainly it would have been much more or at least equally convenient to deliver the same to the Branch No. I of the Insurance Company directly instead of taking the circuitous route through registered post which ultimately led to the draft, etc. being shown as received in the Insurance Company as late as on 12.11.1984. The incongruousness in the entire process of extreme haste and trouble in getting the draft, the cover note and the proposal prepared on a half working day and then complete nonchalance in seeing the same delivered with equal expedition clearly shows the back-dating of the same. This is further clear from the fact discovered by the regional office of the Insurance Company at Kolkata through the second survey report that the T.V. sets and other articles were received by M/s. Saluja Agency on 31.10.1984 and the same were not in stock on 27.10.1984. This shows the active role of the rural representative, 32 appellant R.P.Singh and the Development Officer, Madhavendra Prasad Singh of the Insurance Company.
58. So far as the appellant Rana Ranjeet Singh is concerned, both P.W.8 who had himself functioned as the Branch Manager in the same Branch earlier and at Gaya Branch as also P.W. 13 have stated that the putting of initial with date on the first page of the insurance documents received along with the initials only on the other pages was a normal practice and such papers received in the Branch were produced before the Branch Manager and in his absence before an officer of the Branch or before any other authorized Assistant. The prosecution has not been able to prove any thing more against this appellant except that he had put his initials with date on the proposal and initials on the other pages. It has been clearly stated by both the witnesses that the putting of the initials was merely in token of the receipt and thereafter it was sent to the concerned Sections for further action; all the other actions like preparation of acceptance advice, money receipt, etc. were in fact by others. P.W. 13 and P.W. 8 have specifically stated that the appellant Rana Ranjeet Singh has not done any work with respect to preparation of acceptance advice and money receipt. Moreover, it has also come that the claim is not to be paid before the preparation of the insurance policy and in the present matter insurance policy was never prepared. In view of the aforesaid statements of P.Ws. 8 and 13, I find substantial force in the submission of learned counsel for the appellant Rana Ranjeet Singh that from the materials on the record it was not proper to hold him guilty of having taken part in the conspiracy. Learned counsel for this appellant, in fact, sought to emphasize the fact that the insurance company did not even initiate departmental proceeding against this appellant since they were aware of the practice and procedure in this regard. Be that as it may, in my view the case against this appellant, Rana Ranjeet Singh has also not been proved beyond reasonable doubt.
33
59. At this stage I would refer to another submission of learned counsels for the appellants that evidence of several witnesses ought to be rejected, namely, P.W. 7 and P.W. 6 Officer and Cashier-cum-Clerk of Punjab National Bank, Sampatchak Branch on the ground that they were themselves holding responsible positions in the Bank they would be equally responsible for the conspiracy, if any, and would be in the position of an accomplice and thus without applying the provisions of Section 306, their evidence could not have been taken. Similar statement has been made with respect to P.W. 12 Arvind Prasad, Assistant Administrative Officer, United Insurance Company, Branch office No. I. In my view the said submission has no legs to stand upon as Section 306 of the Code of Criminal Procedure comes into play when in the course of investigation or inquiry into or trial of an offence, they have been found to be directly or indirectly concerned in or privy to the offence, whereas it was never the view of the investigating agency or the prosecution at any stage that these witnesses were so concerned and thus no question of application of Section 306 Cr.P.C. would arise in their cases on the mere ground of suspicion against them by the defence.
60. Learned counsels for the appellants have also sought to argue that most of the appellants have remained behind bars for some days to some months, the allegations pertain to events of more than 25 years ago and the accused having suffered sufficiently long; hence it is a fit case to not send them behind bars again even if their appeals are dismissed and their sentences should be reduced to the period of imprisonment already undergone by them.
61. Learned counsel for the CBI, on the other hand, strongly opposed the said plea relying upon the decision of the Apex Court in the case of Madhukar Bhaskarro Joshi Vs. State of Maharashtra: AIR 2001 SC 147, in paras 17 to 19 of which it has been held as follows:-
"17. It must be noted that in the corresponding provision of the Act of 1988 (Section 13(2) of the Act) there is no such proviso as in Section 34 5(2) of the earlier Act and no power whatsoever is given to the Court to impose a sentence less than the minimum, even if there are special reasons for doing so. The Parliament fixed the minimum sentence of imprisonment of one year even under the Act of 1947 by making an amendment to it in 1958 for which the legislative language is apparently peremptory i.e. "shall not be less than one year". The proviso is in the form of a rare exception by giving power to the Court for reducing the imprisonment period below one year only when there are "special reasons" and the law required that those special reasons must be recorded in writing by the Court.
18. When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, we are afraid its fallout would afford incentive to public servants who are susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servant could easily raise the fine amount through the same means.
19. In the present case, how could the mere fact that this case was pending for such a long time be considered as a "special reason"? That is a general feature in almost all convictions under the PC Act and it is not a speciality of this 35 particular case. It is the defect of the system that longevity of the cases tried under the PC Act is too lengthy. If that is to be regarded as sufficient for reducing the minimum sentence mandated by the Parliament the legislative exercise would stand defeated."
Similar proposition has been laid down in the case of State of Andhra Pradesh Vs. Vasudeva Rao : AIR 2004 SC 960.
62. In view of the aforesaid proposition, I am of the view that mere pendency of the case for a long time cannot be special reason for reducing the sentences of two years awarded by the court below.
63. In the result Cr. Appeal No. 454/2002 (S.J.) is allowed in so far as it concerns the appellant Shiv Nandan Sahay Srivastava as also Cr. Appeal No. 487/2002(SJ) filed by appellant Rana Ranjeet Singh is allowed and the judgment and order of conviction and sentences dated 17.8.2002 is set aside as against them and both the appellants are acquitted of the charges against them and they are discharged from their liabilities of bail bonds. All the other criminal appeals including Cr. Appeal No. 454/2002 (SJ) to the extent it concerns appellant Raj Kishore Sinha are dismissed and the bail bonds of the appellants are cancelled.
(Ramesh Kumar Datta,J.) Patna High Court Dated 22nd July, 2010 NAFR/ S.Pandey.