Karnataka High Court
Syed Afsar Pasha S/O Abdulla Hussaini ... vs The State Of Karnataka on 29 July, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL REVISION PETITION NO.200028/2022
BETWEEN:
1. SYED AFSAR PASHA
S/O ABDULLA HUSSAINI
AGE: 51 YEARS, OCC: BUSINESS
R/O MANGALWAR PET
RAICHUR - 584 101.
2. SYED AMEER PASHA
S/O ABDUL HUSSAINI
AGE: 46 YEARS, OCC: BUSINESS
R/O MANGALWAR PET
RAICHUR - 584 101.
... PETITIONERS
(BY SRI: AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI: GANESH S. KALBURGI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH NERAJINAGAR POLICE
RAICHUR - 584 101.
REPRESENTED BY ADDL. SPP.
HIGH COURT OF KARNATAKA
KALABURAGI BENCH.
... RESPONDENT
(BY SMT: MAYA T.R., HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CODE OF CRIMINAL
PROCEDURE, PRAYING TO ALLOW THE REVISION PETITION AND TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 05.04.2013 PASSED IN CRIMINAL APPEAL NO.31
OF 2010 BY THE PRINCIPAL SESSIONS JUDGE AT RAICHUR
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CONVICTING THE APPELLANTS/ACCUSED NOS.1 AND 2 AND
SENTENCING ACCUSED NO.1/PETITIONER NO.1 HEREIN TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 5 YEARS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 420 OF IPC AND
TO PAY A FINE OF RS.25000/- IN DEFAULT TO UNDERGO FURTHER
RIGOROUS IMPRISONMENT FOR A PERIOD OF 3 MONTHS AND
SENTENCING ACCUSED NO.2/PETITIONER NO.2 TO UNDERGO
RIGOROUS IMPRISONMENT FOR 2 YEARS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 419 READ WITH SECTION 34 OF
IPC, WHILE SETTING ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 15.02.2010 PASSED IN CC NO.411 OF 2003 BY
THE ADDITIONAL JMFC-III RAICHUR, AND TO ACQUIT THESE
REVISION PETITIONERS, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 22.07.2022, COMING ON FOR
'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT PASSED
THE FOLLOWING:
ORDER
The revision petitioners-accused Nos.1 and 2 herein had initially filed Criminal Appeal No.3551 of 2013 challenging the judgment of conviction and order of sentence dated 05.04.2013 passed in Criminal Appeal No.31 of 2010 by the learned Principal Sessions Judge at Raichur (hereinafter referred to as 'the First Appellate Court' for brevity). Since the learned Additional JMFC-III Court, Raichur (hereinafter referred to as 'the Trial Court') acquitted the accused and the First Appellate Court convicted the petitioners, the revision under Section 397 read with Section 401 of Cr.P.C., was required to be filed. When the learned Senior counsel 3 addressed his arguments, he fairly conceded and sought permission to convert the Criminal Appeal into Criminal Revision Petition. The learned advocate on record filed a memo to that effect and the same was accepted. Accordingly, the present Criminal Revision Petition came to be registered.
2. This revision petition is filed by the petitioners- accused Nos.1 and 2 seeking to set aside the judgment of conviction and order of sentence dated 05.04.2013 passed in Criminal Appeal No.31 of 2010 by the First Appellate Court, convicting accused Nos.1 and 2 for the offences punishable under Sections 419 and 420 of IPC and sentencing them to undergo rigorous imprisonment for a period of two years each, for the offence punishable under Section 419 read with Section 34 of IPC and sentencing accused No.1 to undergo rigorous imprisonment for a period of five years for the offence punishable under Section 420 of IPC and to pay fine of Rs.25,000/- and in default to pay fine amount, to undergo rigorous imprisonment for three months, and seeking to confirm the judgment of acquittal dated 15.02.2010 passed in CC No.411 of 2003 by the Trial Court.
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3. Brief facts of the case are that, the informant being the Manager of Indian Bank lodged the first information against accused Nos.1 to 4 alleging commission of offences punishable under Sections 419 and 420 read with Section 34 of IPC. It is stated that accused No.1 personating himself as M.A.Savanur Hussain, opened an account in the name of M/s.Karishma Mega Traders with Syndicate Bank, Extension Branch, Station Road, Raichur. On 27.08.1997, accused No.1 issued six cheques drawn on Syndicate Bank i.e., cheque No.446009 for Rs.6,80,431/-; cheque No.446008 for Rs.5,91,633/-; cheque No.446007 for Rs.7,24,341/-; cheque No.446006 for Rs.7,39,764/-; cheque No.446005 for Rs.7,88,989/- and cheque No.446004 for Rs.7,64,842/- on behalf of M/s.Karishma Mega Traders in favour of M/s. Haji Khan and Company. These cheques were presented for encashment by accused Nos.1 to 4 with the common intention to cheat the bank and to make wrongful gain. Accused No.1 induced the officials of the Indian Bank, Raichur, to honor the cheques, in spite of knowing that these cheques are not going to be honored. Accordingly, when the cheques were presented for encashment, account of M/s. Haji Khan and Company was 5 credited with an amount of Rs.41,60,951/- and the cheques were sent for collection on the same day. Accused have withdrawn an amount of Rs.1,40,000/- on the same day and withdrawn the balance amount within couple of days. But those cheques which were sent for collection were dishonored as there was insufficient funds in the account of M/s. Karishma Mega Traders with Syndicate Bank. Therefore, Indian Bank was forced to provide overdraft facility to M/s. Haji Khan and Company to the tune of Rs.42.61 lakhs.
4. It is stated that immediately, the meeting of the partners of M/s. Haji Khan and Company was convened and the partners of the partnership firm accepted their liability and issued the letter dated 10.09.1997 agreeing to pay Rs.5,00,000/- before 15.09.1997 and Rs.50,000/- per day or Rs.3,00,000/- per week and to liquidate the liability with interest. They have also offered some tangible assets as security. Accused have accordingly paid some amount and thereafter, stopped making repayment. Thus, an amount of Rs.31,10,012.86 was due from accused as on 09.01.1998.
5. It is also stated that preliminary enquiry was done about the transactions that were held by accused Nos.1 to 4 6 in various bank accounts including Indian Bank and Syndicate Bank. The pattern of the transactions revealed that accused used to issue heavy cheques mutually and the funds were being utilised without interest on day-to-day basis. It was also found that the partners of M/s. Haji Khan and Company and M/s. Karishma Mega Traders were very well aware of the procedure and practice adopted in the bank on presentation of the cheques and encashed the confidence of the Bank officials who have shown favour to them. The transactions between the parties were suspicious. They have misutilised the clearing facility and drawn public money through unethical practice and greed. It is also stated that the proprietor of M/s. Karishma Mega Traders by name M.A.Savanur Hussain could not be found in spite of best efforts. After detailed enquiry, it was found that accused No.1 himself is the proprietor of M/s.Karishma Mega Traders and accused Nos.1 to 4 have committed cheating, utilised the public money unethically. Thereby, they have committed the offence punishable under Sections 419 and 420 of IPC.
6. On the basis of this information, Crime No.16 of 1998 for the offence punishable under Section 420 read with 7 Section 34 of IPC was registered and the investigation was undertaken. After investigation, Investigating Officer filed the charge sheet against accused Nos.1 to 4 for the offences punishable under Sections 419 and 420 read with Section 34 of IPC. It is stated that accused Nos.1 to 4 being the partners in M/s.Haji Khan and Company opened an account with Indian Bank and in the meantime, accused No.1 - Syed Afsar Pasha opened an account in the name of M/s.Karishma Mega Traders in Syndicate Bank by personating himself as M.A.Savanur Hussain and continued to transact with both the banks. Accused Nos.1 to 4 developed confidence in the mind of the Bank officials. They presented six cheques totaling to Rs.42.90 lakhs drawn on Syndicate Bank with Indian Bank on 27.08.1997 for clearance. Even though, it was known to accused that the cheques will not be cleared on the same day, they pressurized the bank officials i.e., CWs.2 to 5 and managed to withdraw the amount before encashment of the cheques. After dishonor of the cheques, when accused Nos.1 to 4 were called by CWs.2 to 5, they undertook to repay the amount regularly. An amount of Rs.13.48 lakhs was paid by accused but they have not repaid an amount of Rs.29.42 8 lakhs and thereby they have committed criminal breach of trust and dishonestly induced payment of the amount by Indian Bank which is punishable under Sections 419 and 420 of IPC.
7. The Trial Court took cognizance of the offences and summoned the accused to appear before the Court by registering the criminal case in CC No.411 of 2003. Accused have appeared before the Trial Court and pleaded not guilty for the charges leveled against them and claimed to be tried. During the pendency of the matter for trial, accused No.4 died and the case against him is abated.
8. The prosecution examined PWs.1 to 14 and got marked Exs.P1 to 25 in support of its contention. Accused Nos.1 to 3 have denied all the incriminating materials available on record in their statement recorded under Section 313 of Cr.P.C., but they have not chosen to lead any evidence in support of their defence, but got marked Exs.D1 to D3. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution has failed to prove the guilt of the accused for the offences 9 punishable under Sections 419 and 420 read with Section 34 of IPC and accordingly, acquitted them.
9. Being aggrieved by the impugned judgment of acquittal passed by the Trial Court, the State has preferred Criminal Appeal No.31 of 2010 before the First Appellate Court. The First Appellate Court considering the materials on record, came to the conclusion that the prosecution is successful in proving the guilt of accused Nos.1 and 2 for the above said offences beyond reasonable doubt. Accordingly, convicted and sentenced them as stated above. However, acquittal of accused No.3 was confirmed by the First Appellate Court.
10. Being aggrieved by the impugned judgment of conviction and order of sentence passed by the Appellate Court, accused Nos.1 and 2 are before this Court seeking to set aside the impugned judgment of conviction and order of sentence and to acquit them in the interest of justice.
11. Heard Sri Ameet Kumar Deshpande, learned Senior counsel appearing for Sri Ganesh S. Kalburgi, learned counsel for the petitioners and Smt. T R Maya, learned High 10 Court Government Pleader for the respondent-State. Perused the materials on record including the Trial Court records.
12. Learned Senior Counsel for the petitioners submitted that even though serious allegations are made against the accused, they were acquitted by the Trial Court but the First Appellate Court, while confirming the judgment of acquittal passed against accused No.3, convicted accused Nos.1 and 2 for the above said offences. There are absolutely no materials to prove the guilt of the accused. He further submitted that even in the first information, the informant stated that an amount of Rs.31,10,012.86 is the balance outstanding from the accused. The said contention was given a go by during trial. The contention of the prosecution that accused No.1 had issued six cheques as per Exs.P2 to P7 which came to be dishonored and that in the meantime, accused Nos.1 to 4 have withdrawn more than Rs.42.00 lakhs from their account with Indian Bank is not at all proved by the prosecution. The evidence of PWs.1 to 6 disclose that it is they who played mischief while discharging their duties as Bank officials. To cover up their guilt, a false complaint came to be filed against accused Nos.1 to 4 without any basis. Even 11 though serious allegations are made, no materials are placed before the Court to prove such contention. The contention of the prosecution that the accused have issued several cheques on behalf of M/s.Haji Khan and Company to M/s.Karishma Mega Traders, the said cheques are not produced before the Court. Learned counsel further submitted that even though there is reference to the so-called undertaking given by accused No.1 to repay the amount of cheques i.e., Rs.42.00 lakhs, the said undertaking is not produced before the Court. Even if the case made out by the prosecution is to be admitted as true, no intention or motive is alleged against any of the accused. Under such circumstances, the First Appellate Court committed an error in convicting the petitioners.
13. Learned senior counsel further submitted that against accused No.2, there is absolutely no allegation made in the first information. No materials are placed before the Court against him for having committed any of the offence. But still he was convicted for the offence punishable under Section 419 of IPC. Thus, the conviction of accused Nos.1 and 2 by the First Appellate Court is perverse, illegal and therefore, the impugned judgment of conviction and order of 12 sentence passed by the First Appellate Court is liable to be set aside.
14. Alternatively, learned senior counsel submitted that the sentence imposed on accused Nos.1 and 2 is disproportionate to the offence in question which was said to have been committed during 1997. Therefore, leniency may be shown while sentencing the accused, if at all the impugned judgment of conviction is to be confirmed.
15. Per contra, learned High Court Government Pleader opposing the submissions made by the learned senior counsel submitted that serious allegations are made against the accused for having committed the offences. PWs.1 to 6 are the officials of Indian Bank and PWs.9 and 10 are the officials of Syndicate Bank. They have deposed about the offences committed by accused and produced the relevant documents as per Exs.P1 to 25. The First Appellate Court appreciated all these materials in a proper perspective and convicted the accused and there is no illegality or perversity in the impugned judgment of conviction. Therefore, he prays for dismissing the revision petition.
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16. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the impugned judgment of conviction and order of sentence passed by the First Appellate Court is liable to be set aside?"
My answer to the above point is in 'Affirmative' for the following:
REASONS
17. It is the contention of the prosecution that accused No.1 - Syed Afsar Pasha personated himself as M.A.Savanur Hussain, and posed himself to be the proprietor of M/s.Karishma Mega Traders and opened an account with Syndicate Bank, Extension Branch, Station Road, Raichur. Similarly, accused Nos.1 to 4, opened an account with Indian Bank, Raichur in the name of M/s. Haji Khan and Company, a partnership firm and were transacting with the bank. Accused No.1 representing as proprietor of M/s.Karishma Mega Traders issued in all six cheques drawn in favour of M/s.Haji Khan and Company for a total amount of Rs.42.90 lakhs, on Syndicate 14 Bank. Accused Nos.1 to 4 presented the said cheques for encashment with Indian Bank, knowing fully well that those cheques will not be honored and also knowing about the procedure adopted by the banks in clearing the cheques, induced the Bank officials to credit their account and managed in getting the account of M/s.Haji Khan and Company credited with an amount of Rs.41,60,951/- on the same day. They also managed to withdraw the said amount within couple of days. Subsequently, Syndicate Bank, Raichur communicated with the Indian Bank about dishonor of those six cheques for insufficient funds in the account of the drawer i.e., M/s.Karishma Mega Traders. Even though, accused Nos.1 to 4 undertook to repay the amount to Indian Bank, they repaid only a portion of the amount, but failed to repay Rs.31,10,012.86 and thereby committed the offences punishable under Sections 419 and 420 of IPC.
18. To prove this contention, the prosecution examined PWs.1 to 14, the documents Exs.P1 to P25 and EXs.D1 to D3.
19. PW1 - Shivalingappa is the informant. Witness stated that he was the Manager of Indian Bank from 15 03.11.1997 to August-1998. He knows C.Ws.2 to 6 who were also working in the Bank at various point of time. He knows accused who are the partners of M/s.Haji Khan and Company and they opening of the account with Indian Bank during 1995 with bank account No.749. Accused Nos.1 and 3 were jointly and severally transacting with the Bank. Ex.P1 is the account opening form. Accused No.1 introduced other accused to the Bank for the purpose of opening of the account. Accused No.1 had also opened similar account in the name of Apsar and Company.
20. Witness stated that similarly accused No.1 opened an account in the name of M/s.Karishma Mega Traders with Syndicate Bank, personating himself as M.A.Savanur Hussain, proprietor of M/s.Karishma Mega Traders. Thereafter, he issued six cheques in favour of M/s.Haji Khan and Company. It is stated that on 27.08.1997, M/s.Haji Khan and Company presented six cheques totaling to Rs.42.90 lakhs for encashment which were issued by M/s.Karishma Mega Traders. Those cheques were identified by the witness as Exs.P2 to P7. The cheques amount mentioned in Exs.P2 to P7 were credited to the account of M/s.Haji Khan and Company 16 and the cheques were sent for clearing house. In the meantime on the same day, M/s.Haji Khan Company issued cheques in favour of M/s.Karishma Mega Traders for a sum of Rs.41.60 lakhs. The said cheques were presented through Syndicate bank, Extension counter, to Indian Bank for clearance. Having faith on the customer that the cheques will be honored, an amount for Rs.41.60 lakhs was credited to the account of M/s.Haji Khan and Company.
21. Witness stated that these cheques were cleared as accused No.1 had insisted for the same. Apart from the above, accused had withdrawn an amount of Rs.1,40,000/-. On 28th and 29th August, 1997, there was a strike. However on 30.08.1997, the cheques Exs.P.2 to P.7 that were issued by M/s. Karishma Mega Traders in favour of M/s. Haji Khan and Company were dishonored, by the Syndicate bank, Extension Branch and were sent back to Indian Bank on 31.08.1997, as there was insufficient amount in the Syndicate Bank account.
22. Witness stated that generally on dishonor of cheques, account of the drawee would be debited and the amount will be re-adjusted. But in the present case, there 17 was no sufficient amount even in the account of the accused. Therefore, an amount of Rs.42.61 lakhs which was already credited to the account of the accused i.e., M/s. Haji Khan and company was considered as temporary overdraft and accused No.1 was called upon to repay the amount. He agreed to repay this amount in installment i.e., Rs.50,000/- per day or Rs.3.00 lakhs per week and gave it in writing as per Exs.P8 and P9. Accordingly, the accused have repaid an amount of Rs.13.48 lakhs till November-1997. Thereafter, they stopped paying the amount. On enquiry, it was learnt that accused No.1 presented himself as M.A.Savanur Hussain opened the bank account with Syndicate bank in the name of M/s.Karishma Mega Traders. The photo of accused No.1 was affixed while opening the account. Therefore, it is stated that accused No.1 deliberately personated himself by presenting himself as M.A.Savanur Hussain for the purpose of opening account and cheating the bank. Accused No.1 and other accused themselves were dealing with M/s.Haji Khan and company and therefore, accused were cheating both Indian Bank as well as Syndicate Bank. Hence, he lodged the first information as per Ex.P10. Witness stated that a sum of 18 Rs.31,10,012.86 was due from the accused to the bank as on 09.01.1998. Ex.P.11 is the Current Account Section Day book. As per the entries found in the page No.326, a sum of Rs.19,96,405/-, Rs.22,93,595/- and Rs.1,772.26 paise is credited as on 26.08.1997 in favour of M/s. Haji Khan and Company. Similarly at page No.327 in all Rs.41,61,951/- being total amount of six cheques referred to above were credited in favour of M/s. Haji Khan and Company which was presented to Syndicate Bank Raichur for the purpose of crediting the account standing in the name of M/s. Karishma Mega Traders. On the same day M/s. Haji Khan and Company received Rs.1,40,000/- as per Ex.P.11(C).
23. Witness also referred to various entries in Exs.P11 and 12, to contend that even though cheques in question were not cleared, the amount of the same were credited either to the account of M/s.Karishma Mega Traders or M/s.Haji Khan and Company. Witness stated that suspecting the foul play on the part of the accused, he lodged the first information as per Ex.P.10.
24. During cross-examination, the witness stated that copies of Exs.P.11 and 12 were not given to the police as they 19 have not demanded for the same. Witness further stated that entries in Exs.P11(a) to (j) are not in his handwriting, nor were endorsed in his presence. However, he verified those entries and found to be true. Witness admitted that there are corrections in Ex.P11, but stated that Section Day Book is a rough book maintained in the bank to tally debit and credit entries. Whenever the error occurs, the same would be corrected before entering the same in the day book. Witness stated that CWs.2 to 5 are also the bank officials and pleaded ignorance that they have obtained anticipatory bail from the Court.
25. Witness denied the suggestion that the entries in Ex.P11 were carried out through CWs.2 to 5 only with an intention to safeguard their interest. Witness admitted that the Syndicate bank dishonored the cheques issued by accused No.1 for the reason that there was insufficient fund in the account. Witness stated that accused have not submitted any application for overdraft facility on 10.09.1997. A claim is made by the Bank before the Karnataka Debt Relief Tribunal against the accused for recovery of the amount. Witness admitted that he certified Ex.D1. He admitted that accused 20 have given their assets as security for overdraft facility. He also admitted that accused have undertaken to pay Rs.3,00,000/- per week by paying Rs.50,000/- per day and a sum of Rs.13,48,000/- was paid by the accused. Witness stated that since accused have backed out from their undertaking to pay the amount regularly, the present complaint came to be filed. Witness denied the suggestion that a false complaint was filed against the accused.
26. PW2 - D Bhaskar Rao is the Manager of Indian Bank at Raichur between 20.06.1996 till October-1997. This witness speaks about the accused having opened various accounts i.e., in the name of Apsar and Company and another in the name of M/s.Haji Khan and Company having Open Cash and Credit, OD guarantee facility, etc. Witness stated that these accounts were opened by accused No.1 and two others in the name of M/s.Haji Khan and Company and the current account in the name of Apsar and Company. They were having transactions with Indian Bank, Raichur, since for about 12 years, earlier to the incident. They were having very good relationship with the bank and therefore, credit limit was increased to Rs.20.00 lakhs.
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27. Witness stated that on 27.08.1996, accused No.1 issued six cheques for a total amount of Rs.43.90 lakhs on behalf of M/s.Karishma Mega Traders, drawn on Syndicate Bank. The said cheques were presented for encashment and on discount, the cheques were cleared and the amount was credited to the account of the payee i.e., M/s.Haji Khan and Company. This amount was withdrawn by the accused on the same day. When the cheques were presented for clearance through the clearing house, all six cheques were dishonored as there was insufficient fund in the account. Accordingly, the cheques were returned back. Accused Nos.1 to 4 were having only Rs.4.90 lakhs in their account. On insisting the accused for repayment, they agreed to repay the cheque amount regularly. But however, they failed to repay the amount fully but paid only Rs.12.00 lakhs. On enquiry with Syndicate Bank, Raichur, it was learnt that accused No.1 had opened the account in the name of M/s.Karishma Mega Traders, by affixing his photo and with different name as proprietor of the same. The witness also stated that only to cheat the bank and to make wrongful gain, accused have issued the cheques and withdrawn the amount immediately after crediting, without 22 waiting for clearance of the cheques. Witness identified Exs.P2 to P7 as the cheques that were drawn by the accused in favour of M/s.Haji Khan and Company.
28. During cross-examination, witness admitted that departmental enquiry was initiated against him and he along with CWs.3 to 5 had obtained anticipatory bail. He denied the suggestion that his higher officers promised him to drop from the prosecution, subject to the condition that he will depose in favour of the Bank and accordingly, the charge sheet was not submitted against him. Witness stated that departmental enquiry was completed and 5 increments were denied to him. Witness stated that no notice was issued to the accused alleging commission of the offence under Section 138 of Negotiable Instruments Act. Witness pleaded his ignorance that the accused have paid some amount in accordance with Ex.D1 and to pressurize the accused to get back the amount as per Ex.D1, a false complaint came to be lodged.
29. PW3 - Sidramappa is also the employee of Indian Bank and stated that between May-1997 and 10.09.1997, he worked as Deputy Manager in Raichur Branch. CW2 was Chief Manager, CW4 was Clearing Officer, CW5 was Ledger Clerk 23 and one Syed Hashim was Clerk-cum-Cashier. Witness stated that the accused were having current account, OD and OCC facilities. They were working as commission agents and transacting through the said account. Account was opened in the name of M/s.Haji Khan and Company. They were having good relationship with the bank. On 27.08.1997, M/s.Haji Khan and Company presented six cheques for collection and on the same day an amount of Rs.1,40,000/- was withdrawn. Generally after clearing from the clearing house, the cheque amount will be credited to the account of the drawee but since cheques were not cleared on the same day, the amount was credited to the account of M/s.Haji Khan and Company. However, on 30.08.1997, all the six cheques were dishonored as there was insufficient fund and returned by the Syndicate Bank. But the accused were not having sufficient amount in their account to readjust the amount. When the accused were called and informed about this fact, they agreed to repay the amount at Rs.50,000/- per day or Rs.3.00 lakhs per week and promised to repay the entire amount within 15 days. Accordingly, accused paid Rs.13.00 lakhs. Subsequently, they never paid any amount.
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30. Witness stated that Exs.P2 to P7 are the cheques issued by the accused No.1 for a total amount of Rs.42.90 lakhs and the same were sent for collection. These cheques were drawn on Syndicate Bank by M/s.Karishma Mega Traders and the account belongs to one M A Savanur Hussain. During cross-examination, the witness denied the suggestion that he is seeing those cheques for the first time before the Court. Witness denied that he had given statement before the police as per Ex.D2. Witness admitted that he was also kept under suspension under departmental enquiry. He states that he never met any of the accused.
31. PW4 - M Ramulu was the Assistant Manager in Indian Bank, Raichur from July-1995 till September-1997. Witness stated that he knows accused No.1 who was having CC account in the name of Apsar and Company. Similarly, accused No.1 was also having a current account in the name of M/s.Haji Khan and Company. Witness stated that on 27.08.1997, accused No.1 issued six cheques and those cheques were presented for encashment. Immediately, the cheque amount was credited to the account of M/s.Haji Khan and Company, thereafter cheques were sent for clearance. On 25 01.09.1997, cheques were returned dishonored as there was insufficient fund with the Syndicate Bank. The accused undertook to repay the amount regularly at Rs.50,000/- per day and accordingly, accused No.1 deposited Rs.15.00 lakhs over a period of time. Witness stated that since the accused were having business transactions with the bank since several years, cheque amount was credited to their account before clearance from the clearing house. Witness denied suggestion that he is deposing falsely to help the bank.
32. PW5 - Padmavathi was the Clerk working in Indian Bank Raichur and stated that she was working in current account and OD Section to take stock of the cheques that were presented and to enter the same in the ledger. Witness stated that she knows accused who were having account under the name of M/s.Haji Khan and Company which was a current account with OCC facility. The account was opened in the year 1995. Earlier to that, the account was opened in the name of Apsar and Company in the year 1989. Witness stated that on 27.08.1997, six cheques were presented and sent for collection. Before clearance of the cheques, the amount was credited to the account of the drawee. Subsequently, all the 26 six cheques were dishonored. He identified those cheques as per Exs.P2 to P7. Witness admitted that he had also obtained anticipatory bail when the case was registered and the departmental enquiry was conducted against him, but he was not found guilty.
33. PW6 - K Keshava Kumar is the Branch Manager of Indian Bank, Raichur from 21.07.2002 to 04.07.2005. He stated that on 25.01.2003, Investigating Officer asked him to furnish certain documents. Accordingly, he issued Exs.P1, 2 to
9. During cross-examination, he denied the suggestion that he issued false documents to help the prosecution and that he is deposing falsely against the accused.
34. PW7 - Mahebub Ali and PW8 - Mareppa are the mahazar witnesses who are signatories to Ex.P13. Except admitting signatures, witnesses have not supported the case of the prosecution.
35. PW9 - S M Pawar and PW10 - H H Pandurang are the officers of Syndicate Bank, Station Branch, Raichur. These witnesses have stated regarding opening of the current account No.70 in the name of M/s.Karishma Mega Traders, by 27 accused No.1 in the name of M A Savnur Hussain. They also spoke about the ledger extracts that are produced before the Court as per Exs.P15 to 17. PW10 also stated that on 27.08.1997 six cheques were drawn on Syndicate bank in favour of M/s.Haji Khan and Company and were presented for encashment. Since there was no sufficient amount in the account of M/s.Karishma Mega Traders, all the six cheques were dishonored and sent back to Indian Bank. The total amount of those cheques was Rs.42.90 lakhs. He identified the cheques as per Exs.P2 to P7. Witness stated that he issued the endorsement as per Ex.P8 as there was no sufficient amount in the current account No.70. Witness admitted that in Ex.P8, he had mentioned the reason for dishonor of the cheques as Sl.No.18 i.e., insufficient funds. He denied the suggestion that there was sufficient amount in the account of the accused when the cheques were presented for encashment.
36. PW11 - G Nagaraj is the Assistant Commissioner in Commercial Tax Department. Witness stated that M/s.Karishma Mega Traders with the proprietor Sri M A Savnur Hussain is not a registered concern with commercial 28 tax office at Raichur. In that regard he has issued a letter as per Ex.P19. Witness also stated that one Syed Afsar Pasha is one of the partners in M/s.Haji Khan and Company Merchants and Commission Agents in Raichur, registered under KST and CST and witness provided the registration numbers. The letter given to the Investigating Officer in that regard is Ex.P20. The documents attached to the said document are Exs.P21 and P23. During cross-examination, witness denied the suggestion that he has furnished the documents to help the Investigating Officer. However, he states that he is deposing before the Court on the basis of records that are available in the office.
37. PW12 - Bhimanna is the Investigating Officer who conducted part of investigation. PW13 - Siddappa Murugod is the Investigating Officer who registered FIR on the basis of first information. PW14 - Venkappa is the Investigating Officer who carried out major investigation. Witness stated that he visited the Indian Bank and asked for necessary documents. He collected the documents and deputed his officials to apprehend accused No.1. Witness stated that regarding collection of various documents and recording of 29 statements of the witnesses and also regarding filing of the charge sheet against the accused for the offences punishable under Sections 419 and 420 of IPC.
38. Ex.P1 is the account opening form submitted to Indian Bank by Syed Afsar Pasha and others on behalf of M/s.Haji Khan and Company, Cotton Merchant and Commercial Agents for opening current account on 08.09.1990.
39. Exs.P2 to P7 are the cheques which were issued by accused No.1 on behalf of M/s.Karishma Mega Traders as proprietor, in favour of M/s.Haji Khan and Company drawn on Syndicate Bank, Raichur. All these cheques are dated 26.08.1997 for amount of Rs.7,64,842/-, Rs.7,88,989/-, Rs.7,39,764/-, Rs.7,24,341/-, Rs.5,91,633/- and Rs.6,80,431/- respectively.
40. Ex.P8 is the written memo issued by the Syndicate Bank returning Exs.P2 to P7 for the reason that there was insufficient amount in the account of the drawer. Ex.P9 is the slip pertaining to ExS.P2 to P7. Ex.P10 is the first information lodged by PW1 with Somawar Pete Police Station 30 alleging commission of offences punishable under Section 420 of IPC against the accused. Ex.P11 is the Section Book, Ex.P12 is the Day book of Indian Bank with specific entries on various pages. Ex.P13 is the seizure panchanama, whereunder, Exs.P2 to P7 and other documents were seized.
41. Ex.P14 is the letter dated 16.04.2003 issued by the Syndicate Bank furnishing the account opening form with specimen signatures and the ledger extracts. Those documents were marked as Ex.P15 which stand in the name of Sri M A Savanur Hussain, proprietor M/s.Karishma Mega Traders, plot No.15, Rajendra Gunj, Raichur. Ex.P16 is the letter of proprietorship account issued by Sri M.A.Savanur Hussain as proprietor of M/s.Karishma Mega Traders. Ex.P17 is the application for opening the account with the Syndicate Bank.
42. Ex.P18 is the extract from the ledger accounts. Ex.P19 is the letter dated 20.05.2003 issued by PW11 along with Exs.P21 to 23. Those documents disclose that M/s.Haji Khan and Company, Merchants and Commission Agents with their address as Plot No.15, Shop No.116, Rajendra Gunj, Raichur is registered as dealers and commission agents under 31 Commercial Tax Act which bears photos and signature of all the four partners including Syed Afsar Pasha i.e., accused No.1.
43. Ex.P24 is the FIR registered in Crime No.16 of 1998 of Somawar pete police station, Raichur against accused Nos.1 to 4 for the offence punishable under Section 420 of IPC. Ex.P25 is the seizure panchanama, whereunder, the documents pertaining to Commercial Tax Office were seized.
44. Ex.D1 is the paper book with attested copy of the letter dated 10.09.1997. Exs.D2 and D3 are the portions of the statements of PWs.3 and 5. As per Ex.D2, PW3 is said to have stated before the Investigating Officer that during 1995 M/s.Haji Khan and Company opened current account bearing No.749 to carry out their commission agency business. As per Ex.D3, PW5 is said to have stated before the Investigating Officer that the accused have written a letter undertaking to repay the amount which was due to the bank on 10.09.1997. These portions of the statements were disowned by the witnesses.
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45. It is pertinent to note that PW1 lodged first information as per Ex.P10, where there is reference to accused No.1 personating himself as M.A.Savanur Hussain and opening the bank account with Syndicate Bank as proprietor of M/s.Karishma Mega Traders and issuing six cheques mentioned therein in favour of M/s.Haji Khan and Company, wherein he is one of the partners and having bank account with Indian Bank. It is to be noticed that there is no reference to any other cheques except to Exs.P2 to P7 in Ex.P10 that were issued either by M/s.Karishma Mega Traders or by M/s.Haji Khan and Company. After investigation, the Investigating Officer filed the charge sheet against accused Nos.1 to 4 for the above said offences and in the said charge sheet also, there is reference only to the very same six cheques marked as Exs.P2 to P7, that were issued by accused No.1 on behalf of M/s.Karishma Mega Traders in favour of M/s.Haji Khan and Company.
46. Strangely, the Trial Court framed charge, wherein there is reference not only to six cheques which are marked as Exs.P2 to 7 and which were referred to in the first information as well as in the charge sheet, but in addition, 33 there is reference to six more cheques said to have been drawn by M/s.Haji Khan and Company in favour of M/s.Karishma Mega Traders which were presented for encashment through Syndicate Bank. The cheque numbers and the amount of each cheque are also mentioned therein and the total amount of such cheques is mentioned as Rs.41,60,951/-. As per the charge against, the accused, M/s.Haji Khan and Company drawn the said cheques in favour of M/s.Karishma Mega Traders and accused No.1, in turn, presented the cheques for collection through Syndicate Bank and the Indian Bank was induced to make payment of Rs.41,60,951/- which amounts to cheating and playing fraud and thereby accused have committed offences punishable under Section 420 read with Section 34 of IPC.
47. PW1 who is the informant even though not referred to second set of cheques said to have been issued by M/s.Haji Khan and Company in the first infermation, refers to the same in his evidence and stated that all those cheques were honored and the amount of Rs.41,60,951/- was credited to the account of M/s.Karishma Mega Traders with Syndicate Bank as per Ex.P.11(B). He also states that on the very same 34 day, M/s.Haji Khan and Company withdrew Rs.1,40,000/- from Indian Bank as per Ex.P.11(C).
48. PW2 who was the Manager in Indian Bank, Raichur does not refer to the 2nd set of cheques said to have been issued by M/s.Haji Khan and Company in favour of M/s.Karishma Mega Traders and encashing the cheques in Indian Bank and debiting the amount in the account of M/s.Karishma Mega Traders. On the other hand, the witness refers to the first set of cheques i.e., Exs.P2 to 7 and specifically states that accused have withdrawn the entire amount of Rs.42.90 lakhs through cash. PWs.3 to 6 who are also the Bank officials working in Indian Bank have never referred to the issuance of 2nd set of the cheques, nor they spoke about withdrawal of the cash by the partners of the M/s.Haji Khan and Company after discounting the cheques Exs.P2 to P7, after the same was credited to their account.
49. Even though, PW1 refers to Exs.P11, 12 and 18 in support of his contention about the transaction between M/s.Karishma Mega Traders and M/s. Haji Khan and Company and withdrawal of the amount by the partners of M/s.Haji Khan and Company from the account maintained in Indian 35 Bank, the entries found in Ex.P18 do not support his contention. Moreover, entries found in Exs.P11 and 12 do not have corresponding entries in Ex.P18. None of these documents disclose withdrawal of the amount of about Rs.42.90 lakhs by any of the partners of M/s.Haji Khan and Company from their account with Indian bank between 27.08.1997 i.e., the date of Exs.P2 to P7 and 01.09.1997 when the intimation regarding dishonor of the cheques was received in Indian Bank.
50. When it is the specific contention of the prosecution that accused No.1 had drawn the cheques as per Exs.P2 to 7 in favour of M/s.Haji Khan and Company and the said cheques were presented by accused Nos.1 to 4 and managed to get their account credited before clearance of the cheques by Syndicate Bank and further that immediately accused Nos.1 to 4 withdrew the amount from their account, as a result of which, the Indian Bank could not debit their account after dishonor of the cheques Exs.P2 to 7, it was incumbent on the prosecution to place cogent materials in support of such contention. Admittedly, both M/s.Haji Khan and Company and M/s.Karishma Mega Traders were trading 36 with two different nationalized banks i.e., Indian Bank and Syndicate Bank. The ledger entries for having credited the amount to their account or debiting the account when amount was withdrawn will be available in the Bank.
51. Even though, the prosecution is relying on Exs.P11, 12 and 18, the entries in those documents cannot be reconciled and these documents do not support the contention of the prosecution as deposed either by PW1 or by PW2. If at all, the evidence led by PW1 is to be believed that the second set of cheques were presented for encashment by accused No.1 with Syndicate Bank and the amount was credited to the account of M/s.Karishma Mega Traders, there was no occasion for the Syndicate Bank to dishonor the cheques Exs.P2 to P7 for insufficient fund. The ledger extract Ex.P18 even do not support the contention of the prosecution that there was insufficient fund to dishonor the cheques Exs.P2 to P7. If not all the cheques, at least few cheques could have been honored with the amount that was in the credit of M/s.Karishma Mega Traders.
52. It is also pertinent to note that PWs.9 and 10 who are the officials of Syndicate Bank, have also not spoken to 37 about the second set of cheques that were issued by M/s. Haji Khan and Company in favour of M/s.Karishma Mega Traders and presentation of the same for encashment with Syndicate Bank. Under such circumstances, serious doubt arises in the mind of the Court regarding the transactions that are referred to by the prosecution, to contend that accused Nos.1 to 4 have genuinely transacted with the Indian Bank and induced the officials to credit their account before clearance of the cheques Exs.P2 to P7 and managed to withdraw the entire amount before receipt of communication regarding dishonor of those cheques by Syndicate Bank. There was absolutely no difficulty for the prosecution to place relevant entries relating to M/s.Haji Khan and Company maintained by Indian Bank, in support of its contention and at the same time for producing corresponding entries pertaining to the account maintained with the Syndicate Bank, which could have been the best evidence to prove the questionable transactions referred to by the prosecution. Even though, voluminous evidence was led and various documents were marked, none of these documents support the contention of the prosecution to prove withdrawal of huge amount of about Rs.42.90 lakhs from the 38 account of M/s.Haji Khan and Company either on 27.08.1997 or at any day before 01.09.1997.
53. It is the specific contention of the prosecution that accused No.1 was the partner in M/s.Haji Khan and Company which was having the account with the Indian Bank. The very same accused No.1 by presenting himself as M.A.Savnur Hussain opened an account with Syndicate Bank, Raichur as proprietor of M/s.Karishma Mega Traders.
54. As per Ex.P15, one M.A.Savanur of M/s.Karishma Mega Traders, Plot No.15, Rajendra Gunj, Raichur opened the account with the Syndicate Bank. As per Ex.P16, M/s.Karishma Mega Traders is having address as Plot No.15, shop No.116, Rajendra Gunj, Raichur, and the proprietor is one M.A.Savanur Hussain doing cotton business. Ex.P17 is the application for opening the account submitted by M.A.Savanur Hussain on behalf of M/s.Karishma Mega Traders Plot No.15, Shop No.116, Rajendra Gunj, Raichur.
55. Ex.P21 is the application for grant of certificate of Registration submitted to the Assistant Commercial Tax, I- Circle, Raichur by one Syed Afsar Pasha on behalf of M/s.Haji 39 Khan and Company, Merchant and Commission Agent, Plot No.15, Shop No.116, Rajendra Gunj, Raichur, Syed Afsar Pasha being the partner signed application in such capacity. The photo found on Ex.P15 is of the person M.A.Savanur Hussain and the photo found on Ex.P21 as Syed Afsar Pasha are identical and belong to the same person. The address mentioned in both these documents and also in other documents refers to plot No.15, Shop No.116, Rajendra Gunj, Raichur. However in Exs.P15, 16 and 17 M.A.Savanur Hussain is referred as the proprietor of M/s.Karishma Mega Traders and the very same person under the name as Syed Afsar Pasha referred himself as partner of M/s.Haji Khan and Company in the same address. The official witnesses both from Indian Bank and Syndicate Bank confirm this fact. When both documents are compared, to the naked eye the photos found in Exs.P15 and 21 tallies with each other and safely it can be said that it pertains to the same person.
56. Even though the prosecution is successful in proving its contention that accused No.1 personated himself as M.A.Savanur Hussain and opened an account with Syndicate Bank as proprietor of M/s.Karishma Mega Traders 40 and that he was introduced to Syndicate Bank as M.A.Savanur Hussain by accused No.2, for opening the new account, the said Bank has not filed any complaint complaining personation by accused No.1. PWs.9 and 10 have also not stated anything about such grievance on the part of the Syndicate Bank. Therefore, mere proof of opening such account by personation and providing false information to Syndicate Bank will not lead to the conclusion that accused Nos.1 and 2 have committed offence either under Section 419 or 420 of IPC.
57. I have gone through the cross-examination of official witnesses, who were subjected to lengthy cross- examination. Strangely, learned counsel for accused No.1 has not taken any defence during cross-examination of these witnesses, except suggesting that they are not having personal knowledge of the documents and that they are deposing falsely. But when the prosecution itself has not discharged its burden to prove the guilt of the accused, the burden will not shift on them to probablise their defence. Therefore, I am of the opinion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and 41 therefore, the petitioners are entitled to be acquitted by extending the benefit of doubt.
58. I have gone through the impugned judgment of conviction passed by the First Appellate Court in Criminal Appeal No.31 of 2010. This Court has taken into consideration the evidence of PW1 to conclude that the accused have committed the offences in question. But ignored the fact that there are material contradictions in the evidence led by the prosecution and that there are no supporting documents to prove its contention. Hence, the same is liable to be set aside. The Trial Court has rightly acquitted the accused. The said judgment of acquittal is to be restored.
59. Accordingly, I answer the above point in the affirmative and proceed to pass the following:
ORDER The Criminal Revision Petition is allowed. The judgment of conviction and order of sentence dated 05.04.2013 passed in Criminal Appeal No.31 of 2010 by the learned Principal Sessions Judge at Raichur, is set aside. 42
The judgment of acquittal dated 15.05.2010 passed in CC No.411/2003 by the learned Additional JMFC-III, Raichur, is hereby restored.
The petitioners-accused Nos.1 and 2 are hereby acquitted for the offences punishable under Sections 419 and 420 of IPC.
The bail bond of accused Nos.1 and 2 shall stands cancelled.
The fine amount, if any, deposited by the revision petitioners is ordered to be refunded, on due identification.
Registry is directed to send back the trial Court records along with copy of this order.
Sd/-
JUDGE VNR