Bangalore District Court
Cbi/Acb/Blr vs S Vijay Kumar on 29 July, 2024
KABC010046522019
IN THE COURT OF THE XXI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND PRINCIPAL SPECIAL
JUDGE FOR CBI CASES, BENGALURU (CCC-4)
DATED THIS THE 29th DAY OF JULY, 2024.
PRESENT: SRI. SHRIDHAR GOPALKRISHNA BHAT
XXI Addl. City Civil and Sessions Judge and
Prl. Special Judge for CBI Cases, Bengaluru.
Spl.C.C.No.115/2019
Complainant : CBI/ACB, BENGALURU
By Senior Public Prosecutor
Vs
Accused : Sri. Vijay Kumar S.,
S/o.Sri.T.V.Srinivas,
DOB :28.01.1958,
R/at. No.1449 (New No.12),
3rd Cross, Govindaraju Nagar,
Bengaluru.
Permanent R/at. No.445,
12th Cross, 5th Main,
Agrahara, Tumkur.
By Sri.T.V. Harinarayana, Advocate
***
Date of commission of offence Between 08.11.2016
and 29.11.2016
Date of report of offence 03.12.2016
Date of arrest of accused The accused is not arrested.
Date of release of accused on bail -NA-
Total period of custody -NA-
Name of the complainant Source Information
2 Spl.CC.115/2019
Date of commencement of 26.08.2019
recording evidence
Date of closing of evidence 14.10.2019
Offences complained of Under Sections 409, 420, 477(A)
of the IPC and under Section
13(2) r/w 13(1)(c)&(d) of
Prevention of Corruption Act,
1988
Opinion of the Judge As per the final order.
JUDGMENT
The Inspector of Police, Central Bureau of Investigation ('CBI' in short) Anti Corruption Branch, Bengaluru, has filed the charge-sheet against the accused for the offences punishable under Section 409, 420, 477(A) of the Indian Penal Code ('IPC' in short) and Sec.13(2) R/w. Sec.13(1)(c)&(d) of the Prevention of the Corruption Act, 1988 ('PC Act' in short.)
2. The facts of the prosecution in nut shell are as under;
The accused Sri. Vijay Kumar S., was working as a Manager of Canara Bank ATM Cell, Sadashiv Nagar, Bengaluru, during the year 2016, in between the period 08.11.2016 and 29.11.2016, when demonetization Gazette Notification No.2652 dated 08.11.2016 was notified by the Union Government of India. He was in- charge of ATM Cell, Canara Bank, Sadashiva Nagar, Bengaluru, in his official capacity, having been entrusted with the duty of correctly issuing and receiving the correct denomination of cash on record with regard to cash unloaded from various ATMs of the Canara Bank, which were brought to the Bank by the officials of M/s.
3 Spl.CC.115/2019 Secure Value India Ltd., (hereinafter referred to as 'SVI Ltd.,' for short) represented by Sri. Ravi Goel, the Managing Director. The accused dishonestly swapped Rs.100/- denomination notes with demonetized currency (Specified Bank Notes) either for himself or for unknown others and thereby violated the guidelines stipulated by the Reserve Bank of India, with regard to demonetization. Further he falsified the account in the bank by changing the denominations of the notes received from unloading of the ATMs for the purpose of swapping and thereby defrauded the bank. He had indirectly caused loss to the public exchequer by his act of swapping legal currency with demonetized currency which would otherwise had to be deposited in the account and liable to be taxed. Hence, the accused abused his official position and instead of taking the currency note unloaded and brought to the bank records, swapped Rs.100/- denomination notes with demonetized currency approximately to the tune about Rs.44 lakhs and thereby cheated the Government of India and thereby committed the offence punishable under Section 409, 420, 477(A) of the IPC and under Section 13(2) R/w. Sec.13(1)(c)&(d) of the PC Act.
3. Initially, on the basis of the source information, CW.12 the Superintendent of Police and Head of the Branch, CBI/ ACB, Bengaluru, has registered the case in RC23(A)/2016 on 03.12.2016 against seven persons as per Ex.P31 and thereafter entrusted the said case to the CW.13 for investigation.
4 Spl.CC.115/2019 Thereafter, CW.13 after concluding the investigation, filed two final reports wherein, in the first final report, he has sought for closure of the case against accused Nos.1 to 7 shown in the FIR and in the second charge sheet, he has charge-sheeted accused Vijaykumar after obtaining sanction order from CW.11 for the above said offences.
4. After filing of the two Final Reports, the case against accused No.1 to 7 shown in the FIR was closed and cognizance of the aforesaid offences was taken against the accused and summons was issued to him. In pursuance of the summons issued, the accused has entered his appearance and enlarged on bail. Thereafter, as required under Section 207 of the Cr.P.C., copy of the charge sheet and its enclosures were furnished to the accused. The accused has submitted no objection to frame the charges for the alleged offences. Thereafter, the charges were framed against the accused. The accused pleaded not guilty and claimed to be tried.
5. Prosecution side evidence:
In order to bring home the guilt of the accused, the prosecution has shown in all 13 witnesses, out of which, CW.6 and CW.12 were given up by the prosecution and remaining witnesses were examined as PW.1 to PW.11 and got marked 31 documents as per Ex.P1 to P.31. The prosecution evidence in gist is described as under;
Prosec Charge Person Evidence regarding Exhibits
ution Sheet examined marked.
Witnes witne-
s No. ss No.
PW.1 CW.1 Sri. Pratham Evacuation of cash Ex.P1 to
5 Spl.CC.115/2019
Prabhu, amount of different Ex.P5,
Manager, denominations of P1(a),
(Services), Rs.9,75,42,500/- P2(a) and
CCL Ltd., notes from 96 ATMs P5(a).
of Canara Bank.
Deduction of cut/
mutilated notes.
Providing of
documents.
PW.2 CW.3 Sri. R. Providing of cash requisition Ex.P6,
Murugan, Sr. slips as per Ex.P.7 and 8 to P6(a), P.7
Manager, the IO under receipt Ex.P6 and
Canara Bank Ex.P8
PW.3 CW.4 Sri. Syed Arif Agreement entered Ex.P.9 to
Pasha, Retd. into between the P.13, 9(a)
Sr. Manager, Canara Bank and 11(a) to
Canara Bank. service providers and P. 13(a)
in turn, agreement
between service
providers and Cash
Replinishment Agency
(CRA)
Production of system
generated statement
of denominations wise
with closing balance
and statement of
evaculated or
unloaded report.
Duty of the accused.
Currency chest cash
withdrawal books for
the period 01.07.2016
to 31.12.2016 and
18.02.2015 to
20.01.2017 and
relevant entries made
therein in comparison
with cash requisition
slips.
Work allotted to the
officers of the ATM
Cell
PW.4 CW.5 Smt. Loading and unloading of the Ex.P.7(b),
L.K.Vasanthi, ATM machines, Currency P.8(a) and
6 Spl.CC.115/2019 Retd. Officer, Chest Register, Cash (b) Ex.P.14 Canara Bank. Collection Slips and and P.15 statement given to the IO.
PW.5 CW.7 Sri. Raju A.N. Work of the CRAs and Ex.P16 to Manager, regarding production of P26 and M/s. SVI Ltd., documents to IO and P16(a), identification of Ex.P7 and P8, 18(a) to 17 and with regard to Ex.P.17 21(a) and to P26. 24(a) PW.6 CW.8 Sri. Lankappa Identification of Ex.P21 and Ex.P.22(a) B.W. 24 and 25 and entries made and 25(a) ATM therein Ex.P21(a), 22 and Executive 24(a) and SVI Ltd., PW.7 CW.9 Sri. Entries made in Ex.P21, P22, Ex.P.22(b) Yogananda P24 and P25 and P25(b) Vault Officer, SVI Ltd., PW.8 CW.10 S. Depositing of money with Ex.P.12(a-i) Devendracha detail denomination with 13(a-i), ri, Executive currency chest and regarding P22(c), Cash Officer, entry made in Ex.P.12, 13, 22, P25(c) SVI Ltd., P.23 and P25 PW.9 CW.11 Sri. Tomy Sanction and connected Ex.P27 to Sebastin documents 29, 27(a) to Retd. AGM, 29(a) Canara Bank.
PW.10 CW.2 Sri. Rajesh Working of service providers Ex.P30
Kumar, and CRAs, handing over of
Manager, Ex.P.12 and P13 to IO and
Canara Bank. entries made therein.
PW.11 CW.13 Sri. A.V. Registration of case, Ex.P31
Sathya Sai, investigation conducted and IO filing of the charge sheets.
6. After prosecution side evidence, the statement of the accused was recorded as provided under Section 313 of the Cr.P.C. The accused has denied the incriminating circumstances found in the evidence of the prosecution witnesses against him. In addition to that, he has filed written statement under Section 313(5) of the Cr.P.C., 7 Spl.CC.115/2019
7. Defence Evidence:
In this case, the accused has not opted to place any evidence on his behalf.
8. Heard the arguments of Sri. Shivananda Perla, the learned Sr. Public Prosecutor for CBI and Sri.T.V.Harinarayana, the learned counsel for the accused.
9. On hearing the arguments, bestowing careful thought to the argument canvassed and carefully scrutinizing oral and documentary evidence produced before this Court, the point that would arise for consideration are;
1. Whether the prosecution has secured the valid sanction to prosecute the accused ?
2. Whether the prosecution proves beyond reasonable doubt that after notifying the denomination Gazetteer Notification dated 08.11.2016 by the Government of India, during the period from 08.11.2016 to 29.11.2016, the accused, who was entrusted with the work of ATM Cell, to collect the cash with correct denomination on record which was unloaded from various ATMs of Canara Bank and brought by the officials of the CRA i.e., SVI Ltd., in 8 Spl.CC.115/2019 his official capacity as the Manager of the Canara Bank ATM Cell, Sadashiva Nagar, Bengaluru, had swapped the demonetized notes with legal tender character and deposited the said swapped currency with currency chest by making false entry in the books of account regarding the currency notes received from ATM cell and thereby falsified the account maintained in Canara Bank ATM Cell, Sadashiva Nagar, Bengaluru and thereby committed the during the year 2016 when denomination Gazetteer notification dated 08.11.2016 was notified by the Government of India, in between the period 08.11.2016 and 29.11.2016 the accused was entrusted with the work of the ATM Cell in his official capacity as Manager of the Canara Bank ATM Cell, Sadashiva Nagar, Bengaluru and thereby, committed the offence punishable under Section 477-A of the IPC ?
3. Whether the prosecution proves beyond reasonable doubt that during the above said period, the accused who was entrusted with domain of 9 Spl.CC.115/2019 collecting the cash including the demonetized currency notes unloaded from various ATMs of the Canara Bank in his capacity as Manager of the Canara Bank ATM Cell, Sadashiva Nagar has misappropriated some of the currency notes received by him from the officials of SVI Ltd., by replacing the same with demonetized currency by violating the guidelines issued by the Reserve Bank of India regarding demonetization and thereby committed the offence punishable under Section 409 of the IPC ?
4. Whether the prosecution further proves beyond reasonable doubt that during the above said period, the accused had cheated and dishonestly induced the Government/ Canara Bank authority by his act of falsification of the bank account books and thereby to allow him to utilize the currency notes of bank replaced by substituting the demonetized currency notes which would otherwise had to be deposited in an account and liable to be taxed and thereby committed the offence 10 Spl.CC.115/2019 punishable under Section 420 of the IPC ?
5. Whether the prosecution further prove beyond reasonable doubt that during the above said period, the accused being a public servant, has dishonestly and fraudulently misappropriated the currency notes entrusted to his domain as public servant i.e., as a Manager of the Canara Bank ATM Cell, Sadashiva Nagar, Bengaluru, by replacing the same with demonetized currency notes and by such corrupt means and by abusing his position as public servant has obtained for himself a pecuniary advantage and thereby committed the offence under Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 , which is punishable under Section 13(2) of the Prevention of Corruption Act, 1988?
6. What order ?
10. The above points are answered as under;
Point No.1 : In the affirmative.
Point No.2 : In the negative Point No.3 : In the negative 11 Spl.CC.115/2019 Point No.4 : In the negative Point No.5 : In the negative Point No.6 : As per the final order for the following;
REASONS
11. Point No.1 : It is not in dispute that as on the date of registration of the case and during the commission of the alleged offence, the accused Sri. Vijay Kumar was working as Lane/ Scale II Officer, being the Manager in Canara Bank. Therefore, it is clear that he was the public servant as defined under Section 2(c) of the PC Act. The material on record also reveal that the cognizance of the offence was taken by this court on 12.02.2019 and the written statement filed by the accused under Section 313(5) of the Cr.P.C., reveal that he was retired from service on 31.01.2018. Therefore, it is clear that as on the date of taking cognizance of the offences, the accused was retired from the service. The IO has taken the sanction from the concerned authority to prosecute the accused and thereafter filed the charge sheet against the accused for the alleged offences.
12. The Learned Sr. Public Prosecutor, relying on the evidence of PW.9 and Ex.P27 and P28, vehemently argued that PW.9 is the competent person to grant the prosecution sanction order against the accused and his evidence and the sanction order clearly depict as to due application of mind on the documents and the material placed before him before granting sanction. Hence, the 12 Spl.CC.115/2019 evidence of PW.9 and Ex.P.27 and P.28 clearly establish the valid sanction to prosecute the accused for the offences leveled against him.
13. Per contra, the learned counsel for the accused fairly conceded and submitted that there is no dispute as to obtaining of sanction by the Investigating Officer ('IO' for short) to prosecute the accused for the offence alleged against him. The learned counsel for the accused has submitted that even during statement under Section 313 of the Cr.P.C., the accused has not denied the capacity of PW.9 to grant the sanction and its validity. However, it is noticed that though the accused has not disputed the competency of PW.9 for granting prosecution sanction and the documents produced by him, during his cross-examination, the accused has contended that the PW.9 had granted sanction under as per Ex.P27 under the pressure of his superiors and CBI authorities. But, the said suggestion was denied by the said witness.
14. In the light of the above facts, the present case is analysed, in this case, the criminal prosecution is initiated against the accused by the CBI Police for the offences punishable under Sections 409, 420, 477(A) of the IPC and Sec.13(2) R/w. Sec.13(1)(c) and (d) PC Act. Admittedly, the accused was the public servant working under the Canara Bank as Manager, belonging to Lane/ Scale II category officer. As provided under Section 19 of the PC Act, court cannot take cognizance of the offence punishable under Section 7, 11, 13 and 15 alleged to 13 Spl.CC.115/2019 have been committed by the public servant except with previous sanction of the concerned as provided under the said provision. Hence, it is for the prosecution to show that it has obtained the valid sanction as required under Section 19 of the PC Act so as to prosecute the accused for the alleged offences. Similarly, it is incumbent for the prosecution to prove that the valid sanction has been granted by the sanctioning authority after having satisfied as to case of the prosecution as to commission of the offence. This process can be established by the prosecution by producing the original sanction order which contains the facts constituting the offence and grounds of satisfaction and also by adducing the evidence of the author, who had issued prosecution sanction order.
15. In the case of State of Maharashtra through CBI Vs. Mahesh G. Jain, reported in (2013) 8 SCC 119, the Hon'ble Supreme Court has held that "an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity. When there is an order of sanction by the competent authority indicating the application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of the accused".
16. In another decision of the Supreme Court, in the case of CBI Vs. Ashok Kumar Agarwal 2014 (4) SCC 295, it is held that, the prosecution has to satisfy the court that at the time of sending the matter for grant of 14 Spl.CC.115/2019 sanction by the competent authority, adequate material for such grant was made available to the said authority. This may be evident from the sanction order, in case, it is not extremely comprehensive as well as facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it.
17. In the case of Subramanyaswamy Vs. Dr. Manmohan Singh, reported in (2012) 3 SCC 64, it is held that the grant or refusal of the sanction is not a quasi judicial function, what is required to be seen by the competent authority is whether the facts placed before it by investigation agency prima-facie disclose the commission of the offence by the public servant. If the competent authority satisfied that the material placed before it is sufficient for prosecution of the public servant, then, it is required to grant the sanction. If the satisfaction of the competent authority is otherwise, then, it can refuse the sanction. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegation made against the public servant are true.
18. In the light of the above principles, this court has to examine the evidence produced by the prosecution. In this context, in order to prove the factum of valid sanction, the prosecution has relied upon the 15 Spl.CC.115/2019 evidence of PW.9, the sanctioning authority and Ex.P27 and P28. Ex.P27 is the sanction order dated 04.12.2018 issued by PW.9 and Ex.P.28 is the copy of the Canara Bank Officer Employees (Discipline & Appeal) Regulations 1976.
19. PW.9 being the author of the sanction order in his examination-in-chief, stated that he was authorised to accord the sanction as the AGM to prosecute the Bank Employees of Rank of Scale I to III and accused was the Manager covered under Scale II of the officials. It is further deposed by him that, in response to the requisition sent by CBI to the Bank Vigilance Department, he was asked to verify the irregularities/ illegalities committed by the accused relating to this case and accord or deny the permission to prosecute the accused for the offence. It is further stated by him that, after verifying all the records pertaining to the participation of the accused in committing the irregularity and offence, he accorded the permission to CBI authorities to prosecute the accused and issued Ex.P27 the sanction order.
20. Along with the evidence of PW.9, the contents of Ex.P27 are analysed, it is clear that before issuance of sanction order as per Ex.P27, PW.9 had considered the facts of the present case entirely in detail and also considered FIR, statement of witnesses and other documentary evidence placed before him with regard to facts and circumstances of the case. The contents of Ex.P27 further disclose that after due consideration of 16 Spl.CC.115/2019 the material placed before him and application of mind, PW.9 was satisfied that a case is made out prima-facie against the accused, the then Manager Canara Bank ATM Cell, Sadashiva Nagar Branch, Bengaluru as to commission of the offences punishable under Section 409, 420, 477(A) of IPC and Sec.13(2) R/w. Sec.13(1)(c) &
(d) of the PC Act. Therefore, on conjoint reading of evidence of PW.9 and the contents of sanction order, there remains no doubt that that PW.9, being the sanctioning authority has considered the relevant material and after having satisfied as to prima-facie case made out against the accused for prosecuting him, he had issued sanction order. The evidence of PW.9 and contents of Ex.P.27 undoubtedly ex-facie demonstrate as to application of mind by the sanctioning authority on the relevant documents and granting sanction. Further, it is not the case of the accused that the sanction order was granted without application of mind and and without looking into the documents.
21. The contents of Ex.P28 reveals that the PW.9, being the AGM is the competent authority to grant the sanction order against the accused. The schedule to the Discipline and Appeal Regulations (Ex.P.28(a)) reveals that the Asst. General Manager, or in his absence Dy. General Manager is the Disciplinary Authority in respect of Scale I to III posts. Therefore, from the contents of Ex.P28, it is clear that PW.9, being the AGM of the Bank was competent person /authority to grant sanction to prosecute the accused who is the Scale II officer. Further, 17 Spl.CC.115/2019 the accused has not disputed the authority/ competency of PW.9 to grant the prosecution sanction order against him. Though, the accused has contended that PW.9 has granted the sanction as per Ex.P27 under the pressure of his superiors and CBI authorities, absolutely, there is no material to accept the said stand of the accused. The suggestion put to the mouth of PW.9 in that regard is specifically denied by him. Thus, considering all these aspects, this court is of the firm view that the prosecution has proved the valid sanction to prosecute the accused with regard to the alleged offences. Accordingly, Point No.1 is answered in the affirmative.
22. Point Nos.2 to 5 : Since these points are inter- linked and to avoid repetition of facts and evidence and also for brevity, they are taken together for consideration.
23. ARGUMENTS:
23(a) Submission of learned Senior Public Prosecutor:
The learned Senior Public Prosecutor Sri. Shivanand Perla, relying on the oral and documentary evidence, vehemently argued as to charges leveled against the accused. The learned Senior Public Prosecutor has also brought to the notice of this court with regard to undisputed facts on the basis of the oral and documentary evidence and contended that the accused being the Manager, of Canara Bank ATM Cell, Sasashiva Nagar Branch, Bengaluru, was entrusted with 18 Spl.CC.115/2019 the work of cash handling with CRAs (Cash Replenishment Agency), related works, to receive the evacuated / unloaded cash from the ATM machines by the outsourcing agencies and issue fresh notes for circulation permitted by RBI. The evidence of PW.3 prove the entrustment of work to the accused and the accused in his statement under Section 313 of the Cr.P.C., has admitted the entrustment of said work. Hence, the evidence of PW.3 clearly reveals the entrustment of the work to the accused.
23(b) The learned Senior Public Prosecutor further vehemently argued that the accused, having entrusted with receiving the cash unloaded from ATMs swapped the demonetized currency by altering the number of currencies received from the ATM Cells by falsifying the entries in Cash Requisition Slips, Acknowledgments and also Currency Chest Withdrawal Register of the bank, though the SVI Ltd., has deposited the evacuated currencies with the ATM Cell. In this regard, he has taken notice of this court with regard to the contents of Ex.P1, P.2, P.7, P.8, P.11 to P.13, P.18, P.22 to P.26 to substantiate his contention. It is further submitted by the learned Senior Public Prosecutor that the material placed before this court clearly establish that the accused has committed criminal breach of trust, misappropriated the bank currency by abusing his official position for personal gain and also falsified the accounts of the bank to cheat the bank and thereby to achieve his intended act and accordingly, prayed for conviction of the accused.
19 Spl.CC.115/2019
24. Argument of the learned defence counsel :
24 (a) Sri. T.V.Harinarayana, the learned counsel for the accused has meticulously argued that originally, the name of the accused was not found in the FIR registered by CW.12, which is based on the source information and the IO has given clean chit to the accused persons mentioned in the FIR and falsely filed charge sheet against the present accused for the alleged offences without appreciating the facts and circumstance of the case and without proper investigation. Further, the accused is physically disabled person and not in a position to count the bank notes. He was being the Manager of the Canara Bank ATM Cell, Sadashiva Nagar Branch, supervising over the work of the ATM Cell, wherein other officials were also working. It is further argued by him that the prosecution has not produced any documents before the court to show the entrustment of particular work to the accused. It was the Sr. Manager of the ATM Cell, Canara Bank (PW.3) who had to look after the working of the ATM Cell as a head and in order to save himself, he has made false allegation against the accused.
24(b) The learned counsel relying on the evidence of PW.3 and PW.4 meticulously argued that the cash received from the CRAs was handled by the officials and not by the Manager, when there was a staff in the ATM Cell. PW.4 has specifically admitted that she had received the cash from the ATM Cell and she had made entries in 20 Spl.CC.115/2019 Ex.P.7 and P.8 (Cash Requisition Slips) and P.12 and P.13 (Currency Chest Withdrawal Book). Therefore, the entire receiving of the cash from the CRAs was carried out by the officials of the bank and not by the accused. The accused was only supervising the works of the officials. He had signed some documents only as a supervisory authority over the work of the staff. He had not received any cash from the CRAs and he had not made any entries in the bank account books. Therefore, he was discharging only supervisory function and all other works and entries of the cash was being made by the officials of the bank. Even if any negligence on the part of the accused in not verifying the entries of the cash were being made by the officials, at the most, it may result in Departmental Enquiry and not criminal prosecution.
24(c) The learned counsel for the accused further vehemently argued that there is no evidence to show any dishonest intention on the part of the accused or misappropriation of the currency of the bank or falsification of the accounts of the bank and abuse of his official position. None of the ingredients of the offence alleged have been committed are made out against the accused. There is no evidence to show that the accused was aware of the misdeeds committed by the officials of the ATM Cell i.e., CW.5 and other staff and there was a conspiracy between himself and his subordinate officials. The prosecution has not produced any evidence to show the involvement of the accused in the commission of the alleged any of the offences. Since admittedly, the staff of 21 Spl.CC.115/2019 the ATM Cell had handled the cash, there was every possibility of misdeeds committed by them. The accused is connected to the alleged offences only on the statement of CW.5 stating that at his direction, she had made entries in the accounts which is subsequently specifically denied by her during evidence as per Ex.P.14 and 15. Except the said statement of the CW.5, there is no any other acceptable evidence to show the commission of the alleged offence by the accused. Though the prosecution has examined in all 11 witnesses, there is no acceptable evidence against the accused for having committed the alleged offences. From the evidence of the prosecution neither act of the accused nor his fraudulent or dishonest intention would be established. There is no proof as to swapping of demonetized currency by the accused for the legal tender currency. Hence, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and thereby the accused is entitled for the acquittal. Accordingly, urged for acquittal of the accused.
24(d) In support of his argument, he has relied upon the decision of the Hon'ble Supreme Court reported in LL2021 SC 734, in the case of N Raghavender Vs. State of Andhra Pradesh, CBI.
25. Analysis and findings;
25(a) Before going to the matrix in issue, it is appropriate to cull out certain undisputed facts which 22 Spl.CC.115/2019 can be gathered from the evidence placed on record. It is noticed that admittedly, as per the Reserve Bank of India Circular dated 08.11.2016, Government of India, had withdrawn the legal tender character of Rs.500/- and Rs.1000/- denomination old currency notes and termed them as Specified Bank Notes (SBN). The Reserve Bank of India had further directed all the banks to stop dispensing the SBN from all ATMs with effect from mid night of 08.11.2016 and instructed all the banks to evacuate all the ATMs and bring the cash in them to the respective banks. Further, it is not in issue that the Canara Bank had agreement with the Managed Service Providers (MSPs) i.e., Can Bank Computer Service Ltd., (CCS Ltd.,) and M/s. EPS for ATM maintenance and in turn, the said MSPs entered into an agreement with Cash Replenishment Agencies (CRAs) like SVI Ltd., In this regard, the prosecution has got marked copy of the Agreements as per Ex.P.9. Further, it is also not in dispute that in pursuance of the circular issued by the Reserve Bank of India, the Canara Bank had issued instructions to the MSPs to evacuate the currencies from all the ATMs including demonetized currency and reload the same with legal tender character currency. In that regard, the procedure to be followed is also specified by the Canara Bank. In that regard, the prosecution has produced letter dated 09.11.2016 as per Ex.P.3 and also e-mail dated 09.11.2016 sent by ATM Cell, Canara Bank as per Ex.P.4 with certificate under Section 65-B of the Indian Evidence Act, Ex.P5.
23 Spl.CC.115/2019 25(b) Further, as already stated, admittedly, the accused was working as Lane/ Scale II officer, being the Manager in Canara Bank ATM Cell, Sadashiva Nagar Branch, Bengaluru at the relevant point of time and he was the public servant. Further, it is also noticed that, by virtue of the alleged offences, no financial loss was caused to the Canara Bank, in which the accused was the Manager.
25(c) In this case, the prosecution has prosecuted the accused for the offences punishable under Sections 409, 420, 477(A) of the IPC and Sec.13(1)(c)&(d) R/w. Sec.13(2) of the PC Act. In order to prove the guilt of the accused, the prosecution has to prove all the necessary ingredients of the offences leveled against the accused beyond all reasonable doubt. Therefore, before analysing the evidence on record, it is just to refer the ingredients necessary to constitute the offences leveled against the accused.
25(d) Section 405 of the IPC., defines criminal breach of trust as under;
"Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes off that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied which he has made
24 Spl.CC.115/2019 touching the discharge of such trust or wilfully suffers any other person so to do commits "criminal breach of trust".
25(e) On going through the above definition, it is clear that, to constitute the offence of criminal breach of trust, it requires (a) entrusting any person with property or with dominion over the property, (b) the person entrusted dishonestly (i) misappropriates or converts to his own use that property or (ii) dishonestly uses or disposes of that property or willfully suffers any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged or any legal contract made touching the discharge of such trust.
25(f) Similarly, Section 409 of the IPC., constitutes one of such criminal breach of trust committed by public servant or by banker, merchant or agent etc., Section 409 reads as under;
"Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a
25 Spl.CC.115/2019 term which may extend to 10 years and shall also liable to fine".
25(g) On going through the above provision, in order to constitute an offence under Section 409 of the IPC, the following essential ingredients has to be established.
(i) the accused is a public servant;
(ii) he is entrusted with some property or domain over the property in his capacity as public servant ;
(iii) he commits breach of trust in respect of the said property.
25(h) Sec.415 of the IPC provides definition of cheating which reads as under;
"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
26 Spl.CC.115/2019 Explanation : A dishonest concealment of fact is a deception with the meaning of this section.
25(i). On reading of the above provision, it is clear that, the necessary ingredients of cheating are (1) deception of any person ;
(2) (a) fraudulently or dishonestly
inducing that person to deliver any
property to any person or to consent
that any person shall retain any
property ;
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
25(j) Now the provisions of Section 420 of the IPC are analysed, it provides as under:
"whoever cheats and thereby dishonestly induces person deceived to deliver to any property to any person or to make alter or destroy the whole or any part of valuable security or any thing which signed or sealed, and which is capable of being converted into valuable security shall be punished with imprisonment of either
27 Spl.CC.115/2019 description for a term which may extend to 7 years, and also shall also be liable to fine".
25(k) From the above provision, it is clear that, in order to constitute the offence punishable under section 420 of the IPC, the following ingredients has to be proved/complied.
a) there must be a deception i.e. the accused must have deceived someone.
b) that by the said deception, the accused must induce a person to deliver any property or to make, alter or destroy whole or part of the valuable security or anything which is signed or sealed and which is capable of being converted into the valuable property.
c) that the accused did so dishonestly.
25(l) To bring the case under the ambit of Section 420 of the IPC, it is not only cheating simplicitor, but also dishonest inducement to the person sought to be deceived to deliver any property etc. are required to be proved.
25(m) Section 477A of the IPC deals with falsification of account and punishment prescribed for the said offence, which reads as under:
"whoever being a clerk, officer or servant or employee or acting in the capacity of clerk, 28 Spl.CC.115/2019 officer or servant willfully, and with an intention to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer or has been received by him for or on behalf of his employer, or willfully and with an intend to defraud, makes or abates the making of any false entry in, or omits or alters or abates the omission or alteration any material particular from or in any such book, electronic record, paper, writing, valuable security or account shall be punishable with imprisonment of either description for a term which may extend to 7 years or with fine or with both."
Explanation - it shall be sufficient in any charge under the section to allege a general intent to defraud without naming any particular person intended to be defraud or specifying any particular sum of money intended to be the subject of the fraud or any particular day on which the offence was committed.
25(n) As per the above provision in order to prove/establish the offence of falsification of the account the following ingredients have to be proved.
29 Spl.CC.115/2019
a) the person coming within its purview must be a clerk or an officer or a servant or acting in the capacity of the clerk, an officer or a servant.
b) he must willfully and with an intention to defraud - destroy or alter or mutilate or falsify any book, electronic record, paper, writing, valuable security or account which belongs to or in the possession of his employer or has been received by him for and on behalf of his employer make or abate the making of any false entry in or omit or alter or abate the omission or alteration of any material particular from or in any such book, electronic record, paper, writings valuable security or account.
26. In order to bring home an offence under section 477-A of the IPC, the prosecution has to establish that at the relevant time the accused was the officer and acting in that capacity destroy or alter or mutilated or falsified any book, electronic record, paper, writings, valuable security or account which belonged to or in the possession of his employer or has been received by him for and on behalf of his employer and that he did so with intend to defraud.
27. So far as the ingredients of the above said offences are considered, this court is also being guided by the decision of the Hon'ble Supreme Court in N. 30 Spl.CC.115/2019 Raghavender's case relied by the learned counsel for the accused.
28. So far as Section 13 of the PC Act is concerned, it deals with criminal misconduct by the public servant. The accused is alleged to have committed the offence under Section 13(1)(c) and Sec.13(1)(d) of the said Act. In order to bring home the guilt of the accused, under Section 13(1)(c), the prosecution has to prove that the accused being a public servant, dishonestly or fraudulently misappropriates any property entrusted to him or under his control as public servant or allows any other person to do so or converts that property for his own use. Therefore, the prosecution has to prove the entrustment of the property or control over the property by the accused.
29. To attract the provisions of Sec.13(1)(d) of the PC Act, the prosecution has to establish that the accused being a public servant obtains for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his official position as public servant or while holding the office as public servant, the accused obtains for any other person any valuable thing or pecuniary advantage without any public interest. In this regard, this court is being guided by the decision of the Hon'ble Supreme Court in the case of K.R.Purushottam Vs. State of Kerala, reported in AIR 2006 (12) SCC, 631.
31 Spl.CC.115/2019
30. With the above aspects, now the evidence on record is to be dissected so as to determine whether the prosecution has proved all the necessary ingredients of the offences alleged against the accused. As already stated, in this case, in order to prove the case of the prosecution against the accused, the prosecution has examined in all 11 witnesses as PW.1 to PW.11.
31. PW.1 Sri. Pratham Prabhu, the Manager (Services) Can Bank Computer Services Ltd., (Subsidiary of Canara Bank) who in his examination-in-chief stated regarding demonetization notification dated 08.11.2016 restricting to Rs.500/- and Rs.1000/- currency notes and accordingly evacuation of currency notes from the ATMs of the Canara Bank, process of replenishment or evacuation of the currency from the ATMs. He has also stated in his evidence regarding the direction issued by the Canara Bank Digital Bank Service wing on 09.11.2016 to evacuate all currencies of Rs.500/- and Rs.1000/- denomination from ATMs and also the oral instruction to unload all currencies of Rs.100/- from ATM and to deposit.
32. PW.1 further deposed as to evacuation of total amount of Rs.9,75,42,500/- out of which, Rs.31,028/- currency notes were of Rs.1000/-, Rs.1,24,403/- were of Rs.500/- currency notes and Rs.43,130/- were of Rs.100/- currency notes. Out of the said total amount, Rs.48,500/- were deposited as cut/ mutilated notes found in the ATM. He further identified the letter dated 32 Spl.CC.115/2019 31.08.2018 given by him to the IO regarding cash removed from the ATMs and cash deposited in ATM Cell, Sadashiva Nagar, as per Ex.P.1 and his signature found therein as Ex.P1(a). He further marked statement of evacuation of amount from ATM and his signature as per Ex.P.2 and P2(a). Further, the prosecution has also got marked letter dated 09.11.2016 issued by Canara Bank Digital Bank Service Wing as per Ex.P.3 and e-mail sent by ATM Cell with certificate under Section 65-B of the Indian Evidence Act as per Ex.P.4 and P.5. Except this, nothing is stated by him against the accused. It appears that he is only a formal witness in this case as to production of Ex.P.1 to P.5. Even during cross- examination, he has stated that except taking out statement of information, he does not have personal knowledge about loading and unloading of currency notes in ATMs and on the basis of the available records in CRA system, he had furnished Ex.P.1 and P.2.
33. PW.2 Sri. R.Murugan, is the Sr. Manager, Canara Bank, Currency Chest, Sadashiva Nagar Branch, Bengaluru, who in his evidence stated that the CBI authorities had sought information from his branch relating to custody of the currency chest and its management by the officials of the branch and to produce related documents pertaining to cash deposit dated 16.11.2016 by ATM Cell with currency chest. He further deposed that he has produced original Cash Requisition Slips dated 17.11.2016 and 16.11.2016 as per Ex.P.7 and P.8 under the Receipt Memo dated 33 Spl.CC.115/2019 04.09.2018 as per Ex.P.6. He has also identified his signature found in Receipt Memo as per Ex.P.6(a) and stated as to statement given to the IO in that regard. Except this, he has not stated anything against the accused. Further, during cross-examination, he has stated that he has no personal knowledge of contents of Ex.P.7 and P.8 and he was asked by the then Manager to produce the Ex.P.7 and P.8 to CBI authorities. Therefore, again, PW.2 is found to be only a formal witness to produce the documents before the IO.
34. PW.3 Sri. Syed Arif Pasha, the then Sr. Manager of the Canara Bank, ATM Cell, who in his evidence deposed that, he was working as Sr. Manager of ATM Cell Canara Bank from 25.07.2016 to February 2018. He has also stated as to tie up of the Canara Bank with MSPs i.e., M/s. CCSL and M/s. EPS and in turn, entrustment of the responsibility of the loading and unloading of ATMs of various CRAs including SVI Ltd., by the MSPs. The prosecution got marked the copies of the agreement in that regard as per Ex.P.9 with covering letter dated 12.01.2017 signed by the witness as per Ex.P.9(a). PW.3 in his evidence further stated as to production of system generated statements of denomination wise closing balance and system generated evacuated report as on 08.11.2016 and the said documents were marked as Ex.P.10 and P.11.
35. PW.3 in his evidence further stated that, in the year 2016, the accused was working as Manager in 34 Spl.CC.115/2019 Canara Bank ATM Cell, Sadashiva Nagar Branch, Bengaluru and he was entrusted with the work of cash handling with CRAs and related works. At that point of time, the accused was entrusted with duty to receive the evacuated / unloaded cash from the ATM by outsourcing agencies and issue fresh notes for circulation permitted by RBI and every issuance was to be registered and entered in currency chest Cash Withdrawal Book. Further, he has identified the chest cash withdrawal book for a period covering from 01.07.2016 to 31.12.2016 and 18.02.2015 to 20.01.2017 maintained with Canara Bank Currency Chest, Sadashiva Nagar Branch and the said registers were marked as Ex.P.12 and P.13 and the relevant entry dated 16.11.2016 and 17.11.2016 found in Ex.P.12 and P.13 as per Ex.P.12(a) and P.13(a). Further, he has also identified Ex.P.7 and P.8 corresponding cash collection slips prepared by accused and CW.5 towards deposit of currency by M/s. SVI Ltd., and the signature of the accused found in Ex.P.7 as per Ex.P.7(a).
36. It is his further evidence that as per Ex.P.2, the system generated print out currency withdrawn from ATMs shows that 43133 pieces of currency of Rs.100/- denomination has been unloaded out of which, only 5900 pieces of currency of Rs.100/- is reported vide Ex.P.7 and Ex.P.13(a) entry. He further stated that, while examining Ex.P.8 and Ex.P.12 with Ex.P.11, the system generated print out currency withdrawn from ATMs show that 10261 pieces of currency of Rs.100/- denomination has been unloaded out of which, only 3761 pieces of currency 35 Spl.CC.115/2019 of Rs.100/- is reported as per Ex.P.8 and P.12(a) entry. He has also identified the relevant entry as to Rs.100/- currency notes found in Ex.P.11 as Ex.P.11(a). During cross-examination PW.3 has stated that, the accused Smt. Vasanthi (CW.5), Suni Benjamin, Radhakrishna K and others were working in ATM Cell and also admitted that the entries found in Ex.P.12 and P.13 as per Ex.P.12(a) and P.13(a) do not contain the signature of the accused. Further, during cross-examination, he has denied the suggestion to put his mouth that if there is any irregularities in loading and unloading of the cash in ATM Cell, as a ATM Cell Head, himself and concerned Deputy Bank Official are equally liable for committing the irregularities and the accused has not committed any irregularity or fraudulent act in maintaining the currency chest. He has also denied that he has made false allegation against the accused in order to avoid his liability as Head of the ATM Cell, Canara Bank.
37. Thus, the evidence of PW.3 is analyased, his evidence reveals as to the entrustment of the work to the accused and also the entries made in Ex.P.7, P.8, P.12 and P.13 and difference found therein with regard to the currency notes of denomination of Rs.100/- .
38. PW.4 Smt. L.K. Vasanthi, who was working as Officer of ATM Cell, Canara Bank Sadashiva Nagar Branch, from 2015 to 2017 deposed that, the accused was working as Manager ATM Cell of the said branch and along with him, herself, Sunil Benjamin, Himanshu, 36 Spl.CC.115/2019 Radhakrishna were also working. She has further stated that during the demonetization period, currencies available in ATM machines were unloaded by agencies like CCS, EPS, SVI Ltd., and other agencies and the same was received by the Bank with indent disclosing the particulars of the currency notes. Further, Canara Bank was handing over the currencies to load them into ATMs by preparing a consolidated indent, with regard to said procedure, the agencies were requesting the currency chest in-charge officer to receive the unloaded amount and give the amount to be loaded to the ATM machines. The said unloaded amount during that period were received by her and other officers. In order to maintain the transaction between the Bank and the agencies of receiving the unloaded cash and handing over the currency to be loaded to ATM machines, currency chest register was maintained as per Ex.P.12 and P.13.
39. It is her further evidence that part of the writing in Ex.P.7 and Ex.P.8 cash collection slips dated 17.11.2016 and 16.11.2016 were in her handwriting and they disclose her preparation of information relating to amount received from CRA M/s. SVI Ltd., She has also identified her signature found in Ex.P.7 as per Ex.P.7(b) and P.8(a) and the signature of P.Sunil Benjamin found in Ex.P.8 as per Ex.P.8(b). It is her further evidence that, the entries as per Ex.P.12(a) and P.13(a) in Ex.P.12 and P.13, the Currency Chest Registers are in her handwriting and the said entries were made by her while receiving the currency produced by M/s. SVI Ltd., The 37 Spl.CC.115/2019 said witness was treated as hostile and the Spl. Public Prosecutor has cross-examined her. During her cross- examination on behalf of the prosecution, she has specifically denied the portion of the statement given to the IO as per Ex.P.14 and P.15. In the cross-examination on behalf of the accused, she has stated that Ex.P.8, P.12 and P.13 do not bear the signature of the accused. She has further stated in the cross-examination that one Arif Pasha (PW.3) was the Head of the ATM Cell of the Sadashiva Nagar Branch at that time and he was allotting the work order in the branch restricting to ATM Cell Section.
40. PW.5 Sri. Raju A.N. who is the Manager of SVI Ltd., deposed before this court regarding work of the CRAs under MSPs in the matter of replenishing the cash to the ATMs of the different banks on behalf of the MSPs with whom, CRA is having the contract. He has also stated regarding demonetization notification withdrawing the old Rs.500/- and Rs.1000/- currencies. He further deposed in his evidence that CRA officials, after evacuating or unloading cash from the ATMs bring it to the currency chest section of the Bank and deposit the currencies with denomination and total amount. The said amount will be received by the appointed section officer of the bank and endorsement will be passed to the officials of the CRA after making necessary entries in the currency chest register by obtaining the signature of representative of the CRA who was depositing the unloaded cash.
38 Spl.CC.115/2019
41. He further stated that, in the year 2017, CBI officials had summoned him to enquire with regard to discrepancies relating to the remittance made on 16.11.2016 and 18.11.2016 of unloaded cash from ATM machine relating to currency chest of ATM Cell of the Canara Bank Sadashiva Nagar, Branch and in the course of enquiry, the IO had confronted Ex.P.7 and P.8 and the IO had collected three documents on 27.04.2014 under production memo Ex.P.16 and identified his signature as per Ex.P.16(a). He further deposed as to production of the CD containing telephonic conversation between himself and Canara Bank officials PW.4 Smt. Vasanthi and the accused Vijay Kumar and through him, the prosecution got marked the said CD as per Ex.P.17. The prosecution has also got marked e-mail dated 03.12.2016 sent by PW.4 Smt. Vasanthi along with Section 65-B Certificate as per Ex.P.18 and 19 and the signature of the witness is marked as Ex.P.18(a) and 19(a). Further, during his evidence, he has stated as to production of acknowledgment issued by the officials of the currency chest for deposit of Rs.18,50,92,600/- and his letter dated 11.09.2018 with copy of acknowledgment was marked as Ex.P.20 and his signature therein as Ex.P.20(a). He has also identified the Bank Book maintained by M/s. SVI Ltd., pertaining to M/s. CCS Ltd., as per Ex.P.21 and the entry dated 12.11.2016 therein as per Ex.P.21(a), where number of Rs.100/- currency notes is shown as Rs.43,130/- and also Rs.500/- and Rs.1000/- denomination particulars.
39 Spl.CC.115/2019 Through the said witness, the prosecution has also got marked cash indent and receipt dated 12.11.2016 prepared by the officials of the SVI Ltd., as per Ex.P.22, wherein, number of Rs.100/- denomination currency notes were shown as Rs.43,130/- and the acknowledgment issued by the currency chest officials as per Ex.P.23.
42. PW.5 in his evidence further has deposed that the amount with details of denomination in Ex.P.21 and Ex.P.22 are not tallying with the amount reflected in Ex.P.23. On verification, it can be said that in Ex.P.23, only currency notes pertaining to Rs.100/- is shown as Rs.100 x 5950, which would have been Rs.100 x 43,130/-.
43. The prosecution has also got marked another Bank Book of M/s. SVI Ltd., pertaining to M/s. EPS as per Ex.P.24 and the entries dated 16.11.2016 made therein as Ex.P.24(a). He further deposed that the cash indent and receipt prepared by the office of the SVI Ltd., dated 16.11.2016 as per Ex.P.25 reflects the number of Rs.100/- currency notes as 10261 and indent was prepared and deposited with Canara Bank currency chest. The acknowledgment issued by the currency chest officials is Ex.P.26. He further deposed that the amount with details of denominations in Ex.P.24 and P.25 is not tallying with the amount mentioned in acknowledgment Ex.P.26. In Ex.P.26, only currency notes pertaining to Rs.100/- is shown as 10214 instead of 10261. He has 40 Spl.CC.115/2019 also deposed regarding issuance of fresh acknowledgment dated 18.11.2016 by the accused and PW.4 as per Ex.P.26 signed by the accused and in-charge currency chest official and recording of his statement by the IO. During his cross-examination, he has specifically stated that Ex.P.23 and Ex.P.26 acknowledgments are in the handwriting of PW.4 Smt. Vasanthi.
44. PW.6 Sri. Lakkappa B.W. who is the ATM Executive of M/s. SVI Ltd., deposed that in the course of his enquiry, he was confronted with bank books Ex.P.21 and P.24 by the CBI and the entry as per Ex.P.21(a) dated 12.11.2016 Rs.100/- currency notes were Rs.43,130/- which were issued to CW.10 to deposit the same with bank currency chest. The witness has also identified his signature found in Ex.P.22 cash indent and receipt issued by SVI Ltd., as per Ex.P.22(a). He further deposed that the entry dated 16.11.2016 made in Ex.P.24 as per Ex.P.24(a) is in his handwriting and the said amount was collected by CW.10 to deposit the same in the currency chest. As per Ex.P.24(a), Rs.100/- currency notes were 10261 in number and he has also prepared Ex.P.25 cash indent and receipt and Ex.P.25(a) is his signature.
45. PW.7 Sri. Yogananda, is the Vault Officer of M/s. SVI Ltd., who deposed that he was maintaining the books of accounts for the cash received from the banks issued to the routes and bank books. He identified his initial found in Ex.P.21(a) and Ex.P.24(a). He further deposed that as per Ex.P.21(a) entry, Rs.100 x 43130 has 41 Spl.CC.115/2019 been issued for depositing into currency chest and as per Ex.P.24(a), Rs.100 x 10261 has been issued for depositing into currency chest. He also identified his signature found in Ex.P.22 and Ex.P.25 cash indent and receipt as per Ex.P.22(b) and P.25(b) and also stated as to recording of the statement by the CBI authorities.
46. PW.8 Sri. Devarajachari, The Executive Cash Officer of M/s. SVI Ltd., who has deposited the currency notes with currency chest of the bank in his evidence deposed that in the November, 2016 during demonetization period, he was entrusted with duty to receive unloaded cash from ATMs to deposit them in CRA office vault and then take the money from vault and deposit the same with cash currency chest of Canara Bank, Sadashiva Nagar Branch. In the course of investigation, the CBI authorities called him with regard to depositing of money with details of denominations taken out from CRA vault and deposited with currency chest in between 12.11.2016 to 18.11.2016. He further deposed that as per Ex.P.22 cash indent and receipt, an amount of Rs.100/- x 43130 was brought from ATM and deposited in the vault was entrusted to him along with details of denominations of demonetized currency of Rs.1000/- and Rs.500/- notes also. He identified his signature found in Ex.P.22 as Ex.P.22(c). He further deposed that on 12.11.2016, he went with the said cash to deposit in Canara Bank currency chest and since the officials of the bank were engaged in other CRA activities, he could not deposit the said amount and accordingly, he 42 Spl.CC.115/2019 returned with the cash to CRA office and again, after two days, he went to deposit the said currency notes to the bank. At that time, accused and another official were in- charge of currency chest department in the Bank and they have received the currencies and currency notes and passed the endorsement as per Ex.P.23 and also obtained his signature in the Receipt Book Ex.P.13 and he identified his signature found in Ex.P.13(a) entry as per Ex.P.13(a-i). He further deposed that number of currencies with denominations handed over by him is disclosed Ex.P.22 and denominations mentioned in acknowledgment given by currency chest officials vide Ex.P.23 are different.
47. PW.8 further deposed in his evidence that on 16.11.2016, he went to deposit the currency notes as per Ex.P.25 cash indent and receipt issued by SVI Ltd., to the currency chest of the bank at Sadashiva Nagar Branch and at that time, the accused and another official were in-charge of the currency chest department in the bank and they have received the currencies and currency notes and passed the endorsement as per Ex.P.26 and obtained his signature in Ex.P.12. The witness has also identified his signature in Ex.P.25 and the entries made in Ex.P.12(a) as per Ex.P.25(c) and Ex.P.12(a-i). He further deposed that number of currencies with denomination were handed over by him in Ex.P.25 and denominations mentioned in the acknowledgment given by the currencies chest bank official as per Ex.P.26 are different. He further deposed that after depositing the 43 Spl.CC.115/2019 currency covered under Ex.P.22 and P.25, he deposited the cash indent receipt and its respective acknowledgments i.e., Ex.P.23 and P.26 in his office.
48. PW.10 Sri. Rajesh Kumar, the Manager of ATM Cell, Canara Bank Sadashiva Nagar, who worked in the said Branch from 01.03.2018 till 12.06.2019, in his evidence deposed regarding the contract entered into between the Canara Bank and MSPs and CRAs to maintain the ATMs of the Canara Bank and also the procedure and steps regarding loading and unloading of the currencies in ATMs. He further deposed that under Ex.P.30, he has produced two Registers pertaining to currency chest withdrawal books i.e., Ex.P.12 and P.13 to the CBI authorities. He has also stated that as per Ex.P.12(a), 3761 currency notes of Rs.100/- denomination, 65109 SBN currency notes of Rs.500/- denomination and 152162 SBN currency notes of Rs.1000/- denomination had been deposited in the currency chest. He further deposed that as per Ex.P.13(a), 5900 currency notes of Rs.100/- denomination, 123100 SBN currency notes of Rs.500/- denomination and 35300 SBN currency notes of Rs.1000/- denomination had been deposited in the currency chest. He further deposed that the currency chest officers of the bank are not authorized to receive the different currencies other than what is submitted by CRAs written in slip. During cross-examination, PW.10 has stated that, he has no personal knowledge of the relevant entries made in Ex.P.12(a) and P.13(a). On going 44 Spl.CC.115/2019 through his entire evidence, it is clear that he is only a formal witness regarding submitting of Ex.P.12 and P.13 to the IO and nothing more.
49. PW.11 Sri. A.V.Sathya Sai, Inspector of Police, CBI/ACB, Bengaluru is the IO, who in his evidence deposed as to registration of the case by CW.12 as per Ex.P.31 FIR and also regarding entire investigation. He deposed as to collecting of documents and recording of the statement of the witnesses. He further deposed that the evidence collected by him during investigation disclosed that the accused person who was working as Asst. Manager ATM Cell has abused his official power and has exchanged the demonetized money in declared currency notes after the demonetization notification issued by the Government in 2016 and deposited the wrong denominations without following proper procedure as per bank manual. On the basis of the evidence collected which disclose commission of the offence by the accused, he has filed the charge sheet. During cross- examination, on behalf of the accused, he has stated that he has recorded the statement of the accused Nos.1 to 7 mentioned in Ex.P.31 FIR and during the course of investigation, it has not come to his knowledge that ATM Currency chest register required to be verified by the concerned branch Manager and he did not find any evidence as against the then Manager about violation of rules. No monetary loss has been caused to the Canara Bank nor wrongful gain is received by the accused. He denied the suggestion put to his mouth that in order to 45 Spl.CC.115/2019 save the Bank Manager and other officials including the original accused Nos.1 to 7 mentioned in FIR, he submitted false charge sheet against the accused by falsely implicating him in this case.
50. On going through the entire cross-
examination of the prosecution witnesses, statement of the accused under Section 313 of the Cr.P.C., and the written statement filed under Section 313(5) of the Cr.P.C., it is clear that the accused has specifically denied the accusation made against him in its entirety contending that in order to save the Bank Manager and other officials including the original accused Nos.1 to 7 mentioned in FIR, the IO has submitted false charge sheet against him by falsely implicating him in this case. The suggestion put to the mouth of PW.3 during his cross-examination reveals that the accused has contended that if there is any irregularity in loading and unloading of cash in ATM Cell, as the ATM Cell Head, PW.3, the Sr. Manager and the concerned Deputy Bank Officials are equally liable for committing the irregularity and he has not at all committed any irregularity or fraudulent act in maintaining the currency chest. It is also found to be the contention of the accused that in order to avoid liability, PW.3 being the Head of the ATM Cell of Canara Bank has made false allegation against him.
51. It is also specifically contended by the accused in his written statement filed under Section 313 (5) of the 46 Spl.CC.115/2019 Cr.P.C., that in November, 2016 the ATM in-charge was Mr. Pasha, the Sr. Manager and he was working as II Lane Manager. There are four officials/ officers in the ATM Cell i.e., Smt. Vasanthi, Sri. Radhakrishna, Sri. Benjamin and Sri. Chavan. The duty of ATM Cell is when the cash was deposited by the CRA, the same is received and checked by the officer and tallied the same and thereafter cash was entered in the cash register and prepare cash requisition slip and hand over the same to CRA for depositing the amount to the currency chest. In the cash register, the Bank officials will take the signature of the depositors. The duty of CRA is to personally hand over the cash to the currency chest, wherein, the currency chest officials are counting the cash in front of the CRA and giving credit to ATM Cell. It is further contended by the accused that when the demonetization was effected during November, 2016, he had concentrated on issuing new currency to CRA depending upon their indent, number of ATMs and availability of cash. His duty was to see whether CRA has loaded the cash properly and to see that whether there is any discrepancy in the loaded cash by the CRA. The unloaded cash was received by the officer and tallied the same in front of CRA and delivered it to CRA for depositing in the currency chest and counted the cash in front of them only. In the said process, the bank officials are having collective responsibility.
52. It is further specific contention of the accused that the cash collection slip was prepared by the officer 47 Spl.CC.115/2019 Smt. Vasanthi and Sunil Benjamin and the same was entered in the cash register with proper acknowledgment from the depositor i.e., CRA and in the said process he has no role. Further, in 313 statement, the accused while answering to the Question No.37, specifically stated that he did not collect the cash personally, it was collected by his subordinates and was remitted to the Currency Chest directly by CCS Ltd., Further, for Question No.44, he has answered stating that the currency brought is checked by the two officers. The denominations are entered to the remittance challan, then, the officer who had checked and himself signed the same. The agency takes it and remits it directly to the currency chest. Therefore, it is clear that the accused has denied the commission of the alleged offence and contended as to involvement of other officers / officials and their joint liability in the process of receiving the currency from the CRAs.
53. In view of the above aspects, now, the evidence is analysed, as argued by the learned Senior Public Prosecutor, PW.3 being the Sr. Manager of ATM Cell, Sadashiva Nagar Branch, specifically stated that, in the year 2016, accused was working as the Manager in Canara Bank ATM Cell, Sadashiva Nagar Branch, Bengaluru and he was entrusted with the work of cash handling with CRAs and other related works. At that point of time, the accused was entrusted with the duty to receive evacuated/ unloaded cash from ATMs by the outsourcing agencies and issue fresh notes for circulation 48 Spl.CC.115/2019 permitted by Reserve Bank of India and every issuance was to be registered and entered in currency chest cash withdrawal book. The said evidence of the PW.3 was not challenged by the accused and on the other hand, the same has been admitted by him at the time of recording his statement under Section 313 of the Cr.P.C., as true. Therefore, prima-facie, it is clear that the accused being the Manager of ATM Cell was entrusted with the work of handling the cash with CRAs and related works and duty to receive the evacuated / unloaded cash from ATMs by outsourcing agencies. Though there is no any documentary evidence as to entrustment of the work to the accused as stated by PW.3, the accused himself admitted the entrustment of work as stated by PW.3. Therefore, it is clear that the accused, being the Manager of ATM Cell, who is the public servant entrusted with the domain of receiving the evacuated cash from the ATM by outsourcing agencies and issue of fresh notes for circulation permitted by the Reserve Bank of India. Therefore, the accused gets dominion over the currency received from the CRAs.
54. Now, the factum to be analyzed is, whether the accused has committed any breach of trust in respect of the entrusted property. The prosecution has contended that the accused has misappropriated some of the currency notes received by him from the officials of SVI Ltd., (CRA) by replacing the same with demonetized currency by violating the guidelines issued by the Reserve Bank of India regarding demonetization. In this regard, 49 Spl.CC.115/2019 the evidence is meticulously analysed, PW.1 in his evidence stated as to evacuation of Rs.9,75,42,500/- containing 31,028 notes of Rs.1000/- denomination, 1,24,403 notes of Rs.500/- denomination and 43,130 notes of Rs.100/- denomination from the 96 ATMs of Canara Bank and deposit of Rs.9,74,94,000 containing 31008 notes of Rs.1000/- denomination, 1,24,352 notes of Rs.500/- denomination and 43,100/- notes of Rs.100/- denomination and Rs.48,500/- was deposited as cut and mutilated notes found in the ATM. The total amount deposited in different denominations i.e., Rs.9,74,94,000 and the amount of cut/ mutilated notes are added, it amounts to Rs.9,75,42,500 the total amount withdrawn from 96 ATMs. Along with the said evidence, the contents of Ex.P.1, the letter issued by PW.1 to the IO is analysed, it supports the said evidence of PW.1.
55. Along with Ex.P.1, the contents of Ex.P.2 the system generated statement of withdrawal/ evacuation from ATM is looked into, it reveals the deposit of Rs.9,74,94,000 of three denomination currencies as stated by PW.1 and also amount of Rs.48,500 as cut notes. Along with these two documents, the contents of Ex.P.22 Cash Indent and Receipt dated 12.11.2016 issued by SVI Ltd., reveal the deposit of Rs.9,75,42,500/- in three different currency notes of Rs.1000/-, Rs.500/- and Rs.100/- as stated by PW.1 in his evidence. Even, the entry made in Ex.P.21 Bank Book of SVI Ltd., reveals deposit of Rs.9,75,42,500/- in all in three different 50 Spl.CC.115/2019 currency notes as stated by PW.1. Therefore, on conjoint reading of Ex.P.1, P.2, P.21(a) and P.22, it is clear that total amount of Rs.9,75,42,500/- was evacuated from the ATM and out of which, Rs.9,74,94,000/- was deposited after deducting an amount of Rs.48,500/- towards cut/ mutilated notes found in ATMs. The deposit of the said amount is also supported with evidence of PW.5 to PW.8. On going through the evidence of PW.1 and PW.5 to 8 along with Ex.P.1, P.2, P.21(a), P.22, it is clear that the total amount of Rs.9,75,42,500/- was removed from ATMs in three denomination currencies of Rs.1000/-, Rs.500/- and Rs.100/- as stated by PW.1 and the same was deposited in ATM Cell on 17.11.2016, excluding Rs.48,500/- towards cut and mutilated notes.
56. Similarly, the contents of Ex.P.25 cash indent and receipt dated 16.11.2016 issued by SVI Ltd., reveal that total amount of Rs.18,50,92,600/- was evacuated from the ATMs of the Canara Bank by M/s. EPS through SVI Ltd., containing 1,51,651 notes of Rs.1000/- denomination, 64,831 of Rs.500/- currency notes and 10,261 of Rs.100/- currency notes. Along with Ex.P.25, the contents of Ex.P.24(a), the entry made in Ex.P.24 Bank Book maintained by SVI Ltd., supports the contents of Ex.P.25 as to evacuation of total amount of Rs.18,50,92,600/- and depositing the same in the currency chest of the Canara Bank. The Ex.P.11(a) entry made in Ex.P.11 system generated evacuated / unloaded report as on 08.11.2016 reveals number of Rs.100/- currency note evacuated from the ATMs was 10261 notes 51 Spl.CC.115/2019 Rs.500/- currency note was 59,831 and Rs.1000/- currency note was 10,26,100. It also appears that an amount of Rs.1,18,00,000/- was vaulting cash and adding the said amount, total amount of Rs.18,50,92,600/- was deposited. In this regard, the evidence of PW.7 and PW.8 supports the case of the prosecution.
57. On going through the above documents coupled with the evidence of the witnesses, it is clear that the CRA SVI Ltd., had deposited Rs.9,75,42,500/- on 17.11.2016 including cut/ mutilated notes and similarly, deposited Rs.18,50,92,600/- on 16.11.2016. Further, the contents of Ex.P.23 and P.26, the acknowledgments issued by the ATM Cell also support this aspect. Ex.P.23 acknowledgment dated 18.11.2016 is relating to remitted amount of Rs.9,75,42,500/-, wherein the total cash accepted was found to be Rs.9,74,94,000/- and cut notes of Rs.36,800/- and short of Rs.11,700/- in all, Rs.9,75,42,500/-. Similarly, Ex.P.26 the another acknowledgment dated 18.11.2016 relating to cash remittance of Rs.18,50,92,600/- reveal that total cash accepted was Rs.18,50,92,600/- out of which a sum of Rs.18,50,69,900/- was remitted in currency notes of Rs.1000/-, Rs.500/- and Rs.100/- denominations and cut notes amount was Rs.17,200/- and short was Rs.5,500/- and in all, Rs.18,50,92,600/-. The acknowledgments were given by the ATM Cell itself and the said documents are not in dispute. Therefore, there remains no doubt that the SVI Ltd., has remitted total 52 Spl.CC.115/2019 amount of Rs.9,75,42,500/- as found in Ex.P.22 and Rs.18,50,92,600/- as found in Ex.P.25. So far as the remittance of this much of amount by the SVI Ltd., is concerned, the accused has not disputed the same. He has only pleaded his ignorance in that regard at the time of recording his statement. Thus, there remains no doubt as to amount deposited by the CRA i.e., SVI Ltd., on behalf of MSPs. i.e., CCS Ltd., and EPS.
58. Now, the fact to be considered is, what was the amount stated to be received by the ATM Cell of Canara Bank, Sadashiva Nagar Branch. As already stated, the contents of Ex.P.23 and P.26 make it very clear as to receiving of total amount of Rs.9,75,42,500/- from CCS Ltd., and Rs.18,50,92,600/- from EPS through SVI Ltd., Therefore, it is noticed that there is no dispute as to remitted amount which was received by the ATM Cell. However, there are different entries found in the bank records with regard to the currencies under which the said amounts were received. As already stated, as found from Ex.P.1, P.2, P.21(a) and P.22, a sum of Rs.9,75,42,500/- was remitted by SVI Ltd., on behalf of CCS Ltd., as under ;
Denomination Number Value
of Notes
Rs.1000 x 31028 = 3,10,28,000
Rs.500 x 124403 = 6,22,01,500
Rs.100 x 43130 = 43,13,000
TOTAL 9,75,42,500
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Similarly, as found from Ex.P.11, P.24(a) and P.25, a sum of Rs.18,50,92,600/- was remitted by SVI Ltd., on behalf of EPS as under ;
Denomination Number Value
of Notes
Rs.1000 x 151651 = 15,16,51,000
Rs.500 x 64831 = 3,24,15,500
Rs.100 x 10261 = 10,26,100
TOTAL 18,50,92,600
59. So far as Rs.18,50,92,600/- is concerned, it is noticed that, there is difference as to number of currencies of Rs.1000/- and Rs.500/- in Ex.P.24, P.25 and in Ex.P.11, cash evacuated report. In all these three documents, only number of Rs.100/- currency notes are tallying wherein, 10261 notes of Rs.100/- is mentioned. However, there is a difference as to Rs.1000/- and Rs.500/- currencies are concerned. In Ex.P.24 and P.25, total number of notes of Rs.1000/- is shown as 151651 and Rs.500/- notes as 64831. Whereas, in Ex.P.11 statement, total number of notes of Rs.500/- is shown as 59831 and Rs.1000/- notes as 142351. However, it is noticed that, a sum of Rs.1,18,00,000/- is shown to be vaulting cash and denomination of the currencies of the said amount is not mentioned either in Ex.P.11 statement or in Ex.P.24 or P.25 though total number of currencies are stated. However, as already stated, it is noticed that, a total amount of Rs.18,50,92,600/- was found to be remitted by CRA to the ATM Cell.
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60. With the above aspects, now the contents of Ex.P.22 and P.26, the acknowledgments dated 18.11.2016 issued by ATM Cell, Ex.P.7 and Ex.P.8 Cash Requisition Slips dated 17.11.2016 and 16.11.2016 issued by ATM Cell and the contents of Ex.P.12(a) and P.13(a) of Ex.P.12 and P.13 i.e., Currency Chest Book maintained by ATM Cell of Canara Bank are analyzed, it is clear that total wrong entries were made with regard to the number of currency notes received from the CRA. So far as the remitted amount of Rs.9,75,42,500/- is concerned, in Ex.P.23 acknowledgment, the currencies remitted is shown as under;
Rs.1000 x 35329 = 3,53,29,000
Rs.500 x 123140 = 6,15,70,000
Rs.100 x 5950 = 5,95,000
Total = 9,74,94,000
==========
61. It further reveals that cash of cut notes is Rs.36,800/- and short of Rs.11,700/-, in all Rs.48,500/-. Here also, the denominations of the currencies of the cut notes and short fall amount are not stated. This entry regarding number of currencies, if tallied with the number of currencies stated in Ex.P.21(a) and P.22, it is clear that 4301 notes of Rs.1000/- currency (Rs.43,01,000/-) were added and 1263 notes of Rs.500/- (Rs.6,31,500/-) and 37180 notes of Rs.100/- (Rs.37,18,000/-) were deducted. Here also, the denominations of cut notes and short fall are not stated. If the contents of Ex.P.1 and P.2 are tallied 55 Spl.CC.115/2019 with the notes mentioned in Ex.P.23, there is addition of 4281 notes of Rs.1000/- denomination and deduction of 1212 notes of Rs.500/- denomination and 37180 notes of Rs.100/- denomination.
62. Along with the above aspect, now, the contents of Ex.P.7 Cash Requisition Slip is analysed, in the said slip, the denominations of the remitted amount is shown as under;
1000 x 35361 = Rs.3,53,61,000
500 x 123169 = Rs.6,15,84,500
100 x 5970 = Rs. 5,97,000
Total = Rs.9,75,42,500
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and the indented amount is found to be made in round figure which is not much relevant here. The entries made in Ex.P.7 as to remitted currencies, if compared with the acknowledgment Ex.P.23, there is also difference of currencies. In Ex.P.7 there is addition of 4333 notes of Rs.1000/- denomination, deduction of 1234 notes of Rs.500/- denomination and 37160 notes of Rs.100/- denomination. Therefore, it is clear that the entries made by the ATM Cell in Ex.P.23 and in Ex.P.7 are not tallying with each other and they have made false entries with regard to number of currencies of denomination of Rs.1000/-, Rs.500/- and Rs.100/-. Now, the contents of Ex.P.13(a) in Ex.P.13 Currency Chest Withdrawal Book are analysed, whatever currency notes shown in remitted column of Ex.P.7, same number of currencies are entered in Currency Chest 56 Spl.CC.115/2019 Book. Therefore, it is clear that there is wrong entry in the Currency Chest Book Register maintained by the Bank with regard to receipt of Rs.9,75,42,500/-.
63. So far as the remitted amount of Rs.18,50,92,600/- is concerned, in Ex.P.26 acknowledgment, the currencies remitted is shown as under;
Rs.1000 x 151642 = 15,16,42,000
Rs.500 x 64813 = 3,24,06,500
Rs.100 x 10214 = 10,21,400
Total = 18,50,69,900
============
It further reveals that cash of cut notes is Rs.17,200/- and short of Rs.5,500/-, in all Rs.22,700/-. Here also, the denominations of the currencies of the cut notes and short fall amount are not stated. This entry regarding number of currencies, if tallied with the number of currencies stated in Ex.P.24(a) and P.25, it is clear that 9 notes of Rs.1000/- denomination (Rs.9,000/-) 18 notes of Rs.500/- denomination (Rs.9,000/-) and 47 notes of Rs.100/- denomination (Rs.4,700/-) were deducted. Here also, the denominations of cut notes and short fall are not stated.
64. Along with the above entries, now, the contents of Ex.P.8 Cash Requisition Slip dated 16.11.2016 are analysed, in the said slip, the denominations of the remitted amount is shown as under;
57 Spl.CC.115/2019
1000 x 152162 = Rs.15,21,62,000
500 x 65109 = Rs. 3,25,54,500
100 x 3761 = Rs. 3,76,100
Total = Rs.18,50,92,600
==============
and the indented amount is found to be made in round figure which is not much relevant here. The entries made in Ex.P.8 as to remitted currencies, if compared with the acknowledgment Ex.P.26, there is also difference of currencies. In Ex.P.8 there is addition of 520 notes of Rs.1000/- denomination, 296 notes of Rs.500/- denomination and deduction of 6453 notes of Rs.100/- denomination. Therefore, it is clear that the entries made by the ATM Cell in Ex.P.26 and in Ex.P.8 are not tallying with each other and they have made false entries with regard to number of currencies of denomination of Rs.1000/-, Rs.500/- and Rs.100/-. Now, the contents of Ex.P.12(a) in Ex.P.12 Currency Chest Withdrawal Book is analysed, whatever currency notes shown in the remitted column of Ex.P.8, the same number of currencies are entered in the Currency Chest Book. Therefore, it is clear that there is a wrong entry in the Currency Chest Book Register maintained by the Bank with regard to receipt of Rs.18,50,92,600/-.
65. Therefore, on going through the entire evidence available on file, it is clear that there is wrong entry on the part of the ATM Cell with regard to the currency notes remitted by the CRA. These wrong entries were given scope for swapping the SBN with 58 Spl.CC.115/2019 legal tender character. As already stated, the accused being the Manager of the ATM Cell, was entrusted with the domain of receiving the unloaded cash from ATM by CRAs and issue of fresh notes for circulation permitted by Reserve Bank of India. Now, the question is, who is responsible for the wrong entry and whether the accused had misappropriated some of the currency notes received in the ATM Cell from the officials of SVI Ltd., by replacing the same with demonetized currencies by violating the guidelines issued by the Reserve Bank of India regarding demonetization.
66. At the outset, it is to be noted that the prosecution has not placed any material before this court as to guidelines issued by the Reserve Bank of India regarding demonetization. As already stated, there is a wrong entry made by the ATM Cell of the Canara Bank regarding receiving of currencies of different denominations. In this regard, it is pertinent to note that as found in Ex.P.7, the accused and PW.4 L.K.Vasanthi were deputed for collecting the cash on 17.11.2016 and as found in Ex.P.8, PW.4 Smt.L.K.Vasanthi and Sri.P.Sunil Benjamin were deputed for collecting the cash on 16.11.2016. Therefore, it is clear that it is not only the accused who was deputed for collecting the cash, but other officers were also deputed for the said purpose.
67. Now, the evidence of PW.4 Smt.L.K.Vasanthi is looked into, in her examination-in-chief, she has 59 Spl.CC.115/2019 specifically stated that the unloaded amount during the relevant period referred in this case was received by herself and other officers. She has further stated that the part of Ex.P.7 and P.8 Cash Requisition Slip is in her handwriting and it discloses her preparation of information relating to the amount received from CRA. She has also identified her signature found in the said documents. She has further stated that the entries made as per Ex.P.12(a) and P.13(a) in Ex.P.12 and P.13 Currency Chest Register are in her handwriting and that entry was made by her while receiving currency produced by M/s. SVI Ltd., Therefore, it is clear that, it was PW.4 and other officers of the ATM Cell had received the unloaded amount of ATMs from the CRA and it was PW.4 who made the entries in Ex.P.7, P.8, P.12 and P.13 and not the accused. Further, it is also noticed from the evidence of PW.5, the Manager of SVI Ltd., during cross-examination that the Ex.P.23 and P.26, the acknowledgments were issued by the ATM Cell in favour of CRA also in the handwriting of PW.4 Smt. L.K.Vasanthi. Therefore, it is clear that it was PW.4 and other officers who received the cash remitted by CRA and it was PW.4 alone who had made the entries in the relevant records after receiving the unloaded currencies from CRAs. No doubt, there is signature of the accused in Ex.P.7 Cash Requisition Slip, Ex.P.23 and P.26 acknowledgments, but only on that basis, it cannot be said that the accused alone is responsible for receiving the remitted currencies. It is clear that PW.4 and other 60 Spl.CC.115/2019 officers of the ATM Cell had received the unloaded amount from ATMs.
68. Therefore, it is clear that there was every possibility of intervention of PW.4 and other officers in the matter of receiving the unloaded currencies of ATMs from CRAs. It is also pertinent to note that Ex.P.23 and P.26 the acknowledgments issued from ATM Cell with regard to the number of currencies of different denominations received from SVI Ltd., did not tally with the Cash Indent and Receipt and also Bank Book maintained by SVI Ltd., When the number of currency notes mentioned in acknowledgments issued by ATM Cell with the documents maintained by the CRA were not tallying, the officers of the CRA should have intimated the same to the banker. However, for the reason best known to them, they did not report/ intimate the said fact to the bank and received such incorrect acknowledgments. Further, the denominations of the currencies with regard to cut notes and short fall were also not stated. Under this circumstance, there is every possibility of intervention of the CRA in the matter of exchanging of demonetized currency with legal tender currency. Though the number of officers/ officials of the CRA were examined, nothing was elicited from their mouth in this regard by the prosecution and even it appears that IO has not conducted any investigation in that regard.
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69. As already stated, the entire cash remitted by CRA was received by PW.4 and other officers of the ATM Cell. There is no required evidence to show that the accused alone had received the remitted cash from the CRAs and as such, he alone had the opportunity of exchanging the demonetized currencies with legal tender currencies. It is also interesting to note that as per the evidence of PW.3, the Sr. Manager of the ATM Cell who was in-charge of the ATM Cell, during his examination-in-chief has stated that PW.4 Smt. Vasanthi came to him on 17.11.2016 and informed that M/s. SVI Ltd., brought less currency than that of shown amount by them, for which he informed her to return the currency to M/s. SVI Ltd., and to receive exact currency which was reported. Therefore, it is clear that the matter was brought to the notice of the Sr. Manager of the ATM Cell, who is in-charge of the same. But, it appears that he has not taken any action in that regard for the reason best known to him. In this regard also, the IO has not conducted any investigation.
70. Added to the above aspect, from the evidence available on record, it is clear that, at the relevant point of time, the accused was the Manager of the ATM Cell and there are other officers like PW.4 Smt. L.K.Vasanthi, Sri. Sunil Benjamin, Sri. Himanshu and Sri. Radhakrishna who were also working along with the accused in the ATM Cell. As already stated, the evidence of PW.4 reveals that the remitted amount by CRA was received by the ATM Cell officers and the 62 Spl.CC.115/2019 acknowledgments and other relevant Registers and Cash Requisition Slips were all entered by her. Therefore, it appears that the accused, being a Manager was only supervising the task of receiving of the remitted currencies by the CRAs. It further appears that, when the entries were made by the officers of the Bank, in good faith, he might have signed the acknowledgments issued to the CRAs and also in Ex.P.7 Cash Requisition Slip. It is also pertinent to note that the entries made by PW.4 in Ex.P.7 and P.8 tallies with the Currency Chest Register entry made by her. Under these attending circumstances, it appears that the accused being the Manager of the ATM Cell was only supervising the receiving of the remitted cash from the CRAs. There is no evidence available on behalf of the prosecution to show that the remitted currencies were received by accused alone and he swapped the demonetized currencies with legal tender currencies. There is possibility of intervention of PW.4 and other officers of the ATM Cell and also the CRAs under the facts and circumstances of the present case as discussed above. Therefore, the case of the prosecution that the accused swapped the demonetized currency with legal tender character gets serious suspicion. There was every possibility of swapping of the demonetized currency by the other persons also.
71. From the material placed before the court, it appears that in view of the signature of the accused in Ex.P.23 and P.26, the acknowledgments and Ex.P.7 63 Spl.CC.115/2019 Requisition Slip and in the light of the statement of PW.4, the IO has concentrated on the accused. On going through the statement stated to be given by PW.4 to the IO, it is noticed that, she has stated that on the direction of the accused, they have deposited the amount to the Currency Chest and also stated that the accused only knows about the discrepancy with regard to the cash unloaded and deposited and she had made entries in the Currency Chest Withdrawal Book as per the information provided by the accused. But she has specifically denied such statement given to the IO and portion of her statement in that regard are marked as Ex.P.14 and P.15. Therefore, it is clear that whatever entries made by PW.4 was not at the instance of the accused. Further, it is also interesting to note that it is not the case of the prosecution that the accused had conspired with the PW.4 and other Officers of the ATM Cell and CRAs to swap the demonetized currencies with legal tender currencies. Absolutely, no evidence is found to hold that the accused has dishonestly swapped the demonetized currencies with legal tender currencies in violation of the guidelines issued by the Reserve Bank of India regarding demonetization as alleged by the prosecution. Further, during cross-examination, IO has stated that "No monetary loss has been caused to Canara Bank institution nor wrongful gain is received by the accused". Hence, evidence of the IO reveals that the accused had not received any wrongful gain.
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72. As already stated, the ATM Cell Officers have received the currencies and made the entries in the relevant records and in good faith, the accused might have signed the acknowledgments and requisition slip entered by PW.4. No doubt, the accused being the Manager, he should have verified the entries before signing the same, but it appears that the accused has not verified the entries before signing the same. To that extent, there is negligence on the part of the accused. Further, there is no evidence to show that the accused was aware of the misdeed committed by PW.4. It is needless to say that mere failure on the part of the accused to properly discharge his duty will not constitute a criminal offence unless such failure to discharge his duty is coupled with mens-rea or ill- intention to gain unlawfully and such failure will not constitute an offence. Such improper discharge of duty on the part of the accused cannot be a ground to launch the criminal prosecution against him. For that, he could have be fastened with liability towards improper discharge of duty. In this regard, this court is also being guided by the decision of the Hon'ble Supreme Court in the case of Union of India and others Vs. J. Ahamad (AIR 1979 SC 1022), wherein, it was held, mis- behaviour or misconduct leads to disciplinary proceedings and it would not be sufficient to be construed as a guilty mind or mens-rea to initiate the criminal proceedings.
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73. Thus, on anxious consideration of the entire evidence made available before this court, this court is of the considered opinion that the prosecution has failed to prove that the accused has misappropriated some of the currency notes received by him from the CRA by replacing the demonetized currency by violating the guidelines issued by the Reserve Bank of India in that regard. On the other hand, it appears that there was involvement of several other persons in the matter of receiving the currency from the CRA and there was every possibility of swapping of the demonetized currency notes with the legal tender character by other persons also. The Hon'ble Supreme Court, in the case of T.Subramanian Vs. State of Tamil Nadu, reported in (2006) 1 SCC 401 held that, where two views are reasonably possible from the very same evidence, the prosecution cannot be said to have proved its case beyond reasonable doubt. Therefore, considering all these aspects, this court is of the considered view that the prosecution has failed to prove the offence punishable under Section 409 of the IPC., against the accused.
74. In the light of the evidence placed before the court, now, the charge framed against the accused with regard to Section 477-A as to falsification of the account is considered, as already discussed, there is wrong entry made in the currency chest book maintained in the Canara Bank ATM Cell and thereby, falsification of the accounts in the accounts of the Bank. Even, there is a 66 Spl.CC.115/2019 wrong entry in the acknowledgments issued by the ATM Cell and also in the cash requisition slips issued by the ATM Cell of the Canara Bank. Section 477-A attracts only with regard to falsification of the accounts. As argued by the learned counsel for the accused, in the decision relied by him, it is observed by the Hon'ble Apex Court (N.Raghavender Vs. State of Andhra Pradesh (CBI)), that Section 477-A through its marginal note indicates the legislative intention that it only applies where there is falsification of accounts viz., book keeping or written accounts.
75. In the present case on hand, as stated by PW.4, she had made the entries in the Currency Chest Cash Withdrawal Book as per Ex.P.12(a) and P.13(a) and the acknowledgment as per Ex.P.23 and P.26 were also written by her and even part of the entries in Cash Requisition Slip pertaining to ATM Cell was also made by her. Further, PW.4 in her evidence specifically denied the statement given to the IO to the effect that she had made entries in the Currency Chest Withdrawal Book as per the information provided by the accused and the said portion of her statement is marked as Ex.P.15. Therefore, there remains no doubt that the accused had not made any entry with regard to the receipt of the remitted amount by CRA in the ATM Cell. It is clear that there is no role of the accused in making the entries in respect of the amount received from CRA. Therefore, from the evidence of PW.4, it is clear that the accused has neither made any entries nor the entries 67 Spl.CC.115/2019 made in the Currency Chest Withdrawal Book was at his instance. Therefore, it is clear that the accused has not affected any entries in the books of account and hence, the question of falsification of the accounts by him cannot be accepted. Therefore, the prosecution has failed to prove that the accused has made false entry in the Currency Chest Withdrawal Book, so as to facilitate swapping of the demonetized currency with legal tender character as alleged. There is no acceptable evidence to hold that the accused, being the officer-in-charge of the ATM Cell at relevant point of time, acting in that capacity falsified the books of account maintained in the ATM Cell with an intention to defraud the bank or the Government. Hence, the prosecution has failed to prove the charge against the accused for commission of the offence under Section 477-A of the IPC.
76. As already stated, there is a charge against the accused for the offence punishable under Section 420 of the IPC also. But, on going through the entire materials placed before this court, this court found that there is no convincing and acceptable evidence to prove the said offence against the accused. As already stated, in order to constitute offence punishable under Section 420 of IPC, the accused must have deceived some one and by said deception, he must have induced some person to deliver any property or to make alter or destroy whole or part of the valuable security or anything which is signed or sealed and which is capable of being converted into valuable security and that 68 Spl.CC.115/2019 accused did so dishonestly. But, in this case, it is not the case of the prosecution that the accused has dishonestly deceived someone and by virtue of said deception he induced any person dishonestly. Therefore, from the materials placed before this court, it is clear that there is no actus-reus as well as mens-rea on the part of the accused and no ingredients to constitute the offence punishable under Section 420 of the IPC. Further, as already discussed, the prosecution has failed to prove the falsification of the bank account by the accused and thereby inducing the bank/ Govt. allowing him to swap the currency notes. Therefore, the charge against the accused for the offence punishable under Section 420 of the IPC., cannot be accepted and the prosecution has failed to prove the said charge against the accused as alleged.
77. The accused is also charge sheeted and prosecuted for the offences under Section 13(1)(c)&(d) punishable under Section 13(2) of the PC Act. As already stated, in order to establish the case against the accused under Section 13(1)(c), the prosecution has to prove that the accused being a public servant, dishonestly or fraudulently misappropriated the property entrusted to him or under his control as public servant or allows any other person to do so or converts that property for his own use. In this regard, as already discussed in detail in connection with the offence under Section 409 of the IPC, the prosecution has failed to prove the misappropriation of the property entrusted to 69 Spl.CC.115/2019 the accused in his capacity as in-charge ATM Cell Manager of the Canara Bank. When the prosecution has failed to prove the breach of trust on the part of the accused as alleged, the charge against the accused under Section 13(1)(c) of the PC Act is also liable to be failed. In this regard, this court is also being guided by the decision of the Hon'ble Apex Court reported in AIR 1955, SC 1437 (Madhusudhan Singh Vs. State of Bihar), wherein, the Hon'ble Supreme Court, while considering Sec.5(1)(c) of the PC Act, 1947, held that the conviction under PC Act, is not sustainable when the court below acquitted him for offence under Section 409 of the IPC. Therefore, the case of the prosecution that the accused has committed the criminal misconduct under Section 13(1)(c) of the PC Act, cannot be accepted.
78. So far as the offence under Section 13(1)(d) is concerned, the prosecution has to prove that the accused, holding the office as a public servant obtains any valuable thing or pecuniary advantage for any person by illegal or corrupt means and such obtaining of valuable thing or pecuniary advantage is without any public interest. As already stated, admittedly, the accused was the public servant and holding the office of the Manager of the ATM Cell and he was in-charge of the same. But, on going through the entire evidence available on file, there is no material to show that the accused had obtained any valuable thing or pecuniary advantage either for himself or for any other person by 70 Spl.CC.115/2019 abusing his official position through illegal or corrupt means. As already stated, the IO himself deposed before this court that no wrongful gain is received by the accused. It is not the case of the prosecution that the accused, by abusing his official position obtains benefit for any other person, any valuable thing or pecuniary advantage without any public interest. There is no required evidence available on behalf of the prosecution to prove the ingredients of the offence under Section 13(1)(d) of the PC Act. Hence, the prosecution has failed to prove the offence leveled against the accused under Section 13(1)(d) of the PC Act.
79. CONCLUSION:
Thus, for the reason discussed above in detail, on considering the entire materials placed before this Court meticulously in deep, this court is of the considered view that the prosecution has failed to prove the offences leveled against the accused punishable under Sections 409, 420, 477-A of the IPC and the offence under Section 13(1)(c)&(d) punishable under Section 13(2) of the PC Act beyond reasonable doubt. Hence, point Nos.2 to 5 are answered accordingly in the negative.
80. Point No.6: For the reason discussed in connection with Point Nos.2 to 5 and findings given thereon, this court is of the considered opinion that since the prosecution has failed to prove the offences leveled against the accused under Sections 409, 420, 477-A of the IPC and Section 13(1)(c)&(d) R/w. Section 71 Spl.CC.115/2019 13(2) of the PC Act, beyond reasonable doubt, the accused is entitled to get the benefit of the same and to be acquitted for the said offences. Accordingly, this court proceed to pass the following;
ORDER Acting under Section 235(1) of the Cr.P.C., the accused is acquitted of the offences punishable under Section 409, 420, 477-A of the Indian Penal Code, and Section 13(1)(c) & (d) R/w. Sec.13(2) of the Prevention of Corruption Act, 1988.
The bail bond of the accused and that of his surety stands cancelled.
(Dictated to the Stenographer Gr.I directly on the computer, corrected and then pronounced by me in the Open Court on this the 29th day of July, 2024) (Shridhar Gopalkrishna Bhat) XXI Addl. City Civil and Sessions Judge, & Prl. Special Judge for CBI Cases, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PWs & Cws NAMES OF WITNESSES DATE
NUMBERS
PW.1 /CW.1 Sri. Pratham Prabhu 26.08.2019
PW.2 /CW.3 Sri. R. Murugan 26.08.2019
72 Spl.CC.115/2019
PW.3 /CW.4 Sri. Syed Arif Pasha 27.08.2019
PW.4 /CW.5 Smt. L.K Vasanthi 27.08.2019
PW.5 /CW.7 Sri. Raju A.N 28.08.2019
PW.6 /CW.8 Sri. Lakkappa B.W. 28.08.2019
PW.7/CW.9 Sri. Yogananda 28.08.2019
PW.8 /CW.10 Sri. Devarajachari 29.08.2019
PW.9 /CW.11 Sri. Tomy Sebastian 29.08.2019
PW.10/ CW.2 Sri. Rajesh Kumar 17.09.2019
PW.11/CW.13 Sri. A.V. Sathya Sai 14.10.2019
LIST OF DOCUMENTS MARKED BY THE PROSECUTION:
Exhibit Description Marked Date
through
Number
Ex.P.1 The letter passed by the PW.1 26.08.2019
witness/ PW.1 dated
Ex.P.1(a) 31.08.2018 PW.1 "
Signature of the witness/
PW.1
Ex.P.2 Detailed statement of PW.1 26.08.2019
Evacuation of amount
Ex.P.2(a) from ATM (3 sheets) " "
Signature of the PW.1
Ex.P.3 The attested copy of letter PW.1 26.08.2019
dated 09.11.2016
Ex.P.4 The Printout of e-mail PW.1 26.08.2019
dated : 09.11.2016 sent
from ATM Cell to All
Vendors and CRAs
Ex.P.5 A certificate under Section PW.1 26.08.2019
65-B of Indian Evidence
Ex.P.5(a) Act " "
Signature of PW.1
Ex.P.6 Receipt memo dated PW.2 26.08.2019
Ex.P.6(a) 04.09.2018 " "
Signature of PW.1
73 Spl.CC.115/2019
Ex.P.7 Original Cash Requisition PW.2 26.08.2019
Slip No.101715 dated
17.11.2016.
Ex.P.7(a) PW.3 27.08.2019
Signature of the accused
Ex.P.7(b) PW.4 27.08.2019
Signature of the
witness/PW.4
Ex.P.8 Original Cash Requisition PW.2 26.08.2019
Slip No.101713 dated
16.11.2016
Ex.P.8(a) PW.4 27.08.2019
Signature of the
Ex.P.8(b) witness/PW.4 PW.4 27.08.2019
Signature of P. Sunil
Benjamin
Ex.P.9 Attested copies of PW.3 27.08.2019
agreements between
Can.... through covering
letter dated 12.01.2017
Ex.P.9(a) (together marked) " "
Signature of the
witness/PW.3
Ex.P.10 System generated PW.3 27.08.2019
Statements of
denominations wise
closing balance as on
Ex.P.11 08.11.2016 " "
&
System Generated
Ex.P.11(a) /Evacuated/ unloaded
report as on 08.11.2016 PW.3 27.08.2019
The relevant calculated
figure available at Page
No.3 of Exhibit No.11.
Ex.P.12 Currency Chest Cash PW.3 27.08.2019
Withdrawal book(Register)
for the period from
01.07.2016 to 31.12.2016
Ex.P.12(a) The Relevant entry dated 16.11.2016 in Ex.P.12 at PW.3 27.08.2019 74 Spl.CC.115/2019 Page No.94 with regard to currency deposited by M/ s Secure value EPS.
PW.8 29.08.2019
Ex.P.12 Signature of the
(a-1) witness/PW.8 on the
Ex.P.12(a) Entry.
Ex.P.13 Currency Chest Cash PW.3 27.08.2019
Withdrawal book(Register)
for the period from
18.02.2015 to 20.01.2017
Ex.P.13(a) The Relevant entry dated PW.3 27.08.2019
17.11.2016 in Ex.P.13 at
Page No.84 with regard to
currency deposited by M/
s Secure value Ltd. PW.8 29.08.2019
Ex.P.13 Signature of the
(a-1) witness/PW.8 on the
Ex.P.13(a) Entry.
Ex.P.14 The portion of the PW.4 27.08.2019
Statement before the CBI
officer/I.O dated
19.04.2017 given by
witness/PW.4
Ex.P.15 The portion of the PW.4 27.08.2019
Statement before the CBI
officer/I.O dated
19.04.2017 given by
witness/PW.4
Ex.P.16 The Production Memo PW.5 28.08.2019
dated 24.04.2017
Ex.P.16(a) Signature of the " "
witness/PW.5
Ex.P.17 The Compact Disc(CD). PW.5 28.08.2019
Ex.P.18 & Printout of e-mail dated PW.5 28.08.2019
Ex.P.19 03.12.2016 along with 65-
Ex.P18(a)& B Certificate
Ex.P.19(b) Signatures of the witness PW.5 28.08.2019
Ex.P.20 Letter dated:11.09.2018 PW.5 28.08.2019
75 Spl.CC.115/2019
along with the copy of
acknowledgment.
PW.5 28.08.2019
Ex.P.20 (a) Signature of the witness / PW.5 on the letter Ex.P.21 Bank Book of M/s PW.5 28.08.2019 Securevalue India Ltd pertaining to M/s. CCSL maintained at Bank. " "
Ex.P.21 (a) The entry made on
12.11.2016 by mention
the Rs.100 Currency
notes X 43,130
Ex.P.22 Cash indent and receipt
and dated 12.11.2016 which PW.5 28.08.2019
Ex.P.23 reflects Rs.100 Currency
notes X43, 130 deposited
with Canara Bank issued
by currency chest officials
of Bank.
Ex.P.22 (a) Signature of the PW.6 28.08.2019
witness/PW.6 on Ex.P.22
Ex.P.22 (b) Signature of the PW.7 28.08.2019
witness/PW.7 on Cash
indent and receipts
Ex.P.22 (c) PW.8 29.08.2019
Signature of the
witness/PW.8 on Ex.P.22
Ex.P.24 Bank Book of M/s PW.5 28.08.2019
Securevalue India Ltd,
pertaining to M/s. EPS
maintained at Bank.
Ex.P.24 (a)
Entry made on " "
16.11.2016 about mention
of Rs.100 Currency notes
X 10,261
Ex.P.25 Cash indent and receipt
and dated 16.11.2016 which PW.5 28.08.2019
76 Spl.CC.115/2019
Ex.P.26 reflects Rs.100 Currency
notes X 10,261 deposited
with Canara Bank issued
by currency chest officials
of Bank.
Ex.P.25 (a) Signature of the PW.6 28.08.2019
witness/PW.6 on Ex.P.25
Ex.P.25 (b) Signature of the PW.7 28.08.2019
witness/PW.7 on Cash
indent and receipts
Ex.P.25 (c) Signature of the PW.8 29.08.2019
witness/PW.8
Ex.P.27 Sanction Order dated PW.9 29.08.2019
04.12.2018 issued by
PW.9(witness)AGM,
Canara Bank.
Ex.P.27 (a) Signature on last page of PW.9 29.08.2019
Ex.P.23
Ex.P.28 Copy of the Canara Bank PW.9 29.08.2019
Officer Employees
(Discipline and Appeal)
Regulations,1976
Ex.P.28 (a) Schedule of authority of PW.9 29.08.2019
the Sanctioning
authorities are mentioned
at last page of Ex.P.24
Ex.P.29 Covering Letter dated : 04- PW.9 29.08.2019
12-2018 with Ex.P.27 and
Ex.P. 28
Ex.P.29 (a) Signature of the " "
witness/PW.9
Ex.P.30 A production memo dated PW.10 17.09.2019
21.08.2018
Ex.P.30 (a) Signature of the " "
witness/PW.10
77 Spl.CC.115/2019
Ex.P.31 Registered FIR in PW.11 14.10.2019
RC.23(A)/2016
(Shridhar Gopalkrishna Bhat)
XXI Addl. City Civil and Sessions Judge, & Prl. Special Judge for CBI Cases, Bengaluru.
SHRIDHAR G BHAT Digitally signed by SHRIDHAR G BHAT Date: 2024.07.29 16:43:24 +0530