Calcutta High Court (Appellete Side)
Santimoy Sarkar vs State Of West Bengal on 19 May, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Before:-
The Hon'ble Justice Joymalya Bagchi
C.R.A. No. 372 of 1990
Santimoy Sarkar
Vs.
State of West Bengal
Mr. Aninda Dutta, ld. Advocate
........Amicus Curiae
Mr. Pawan Kumar Gupta, ld. Advocate
........for the State.
Mr. Asraf Ali, ld. Advocate
........for the C.B.I.
Heard on : 26.4.2016 & 10.5.2016
Judgment on : May 19, 2016.
Joymalya Bagchi, J.:
The appeal is directed against judgment and order dated 31st July, 1990 passed by learned Judge, 2nd Special Court, Calcutta, in Case No.2/80 convicting the appellant for committing offence punishable under sections 420/468/471 of the Indian Penal Code and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947 and sentencing him to suffer rigorous imprisonment for a period of three years each on the charges under sections 420/468 of the Indian Penal Code and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947 respectively and also to pay a fine of Rs.25,000/- each, in default to suffer rigorous imprisonment or a further period of one and half years each on these counts, all the substantive sentences of imprisonment to run concurrently. No separate sentence was passed for the offence punishable under section 471 I.P.C. Further direction was given that 50% of the fine so realised be paid to Indian Bank.
The prosecution case, as alleged, against the appellant is to the effect that the appellant as the Manager of Russel Street Branch of Indian Bank had fraudulently opened a current bank account in the name of Dwijen Basu (P.W.4) of 10A, Satya Doctor Lane, by misutilising a blank account opening form filled up and signed by the said Dwijen Basu and left in the hands of the appellant. It has been alleged that said Dwijen Basu had come to the bank in January, 1977 to open a current account for obtaining a business loan. He filled in a current account opening form and signed the same but did not put any date. The appellant had asked him to bring someone known to the bank to introduce him but said Dwijen Basu left the bank leaving the account opening form with the appellant. Subsequently, the appellant misutilised the said form by putting a date thereon by his own hand and opened a current account in the name of Dwijen Basu. He also filled in a pay-in- slip dated 8.2.1977 in the name 'D. Bose' and deposited a sum of Rs.200/- in the account. He purportedly issued a cheque book bearing cheque leaf nos.699826 to 699850 in favour of Dwijen Basu on 6.6.1977 although no application for issuance of cheque book had been made by the said customer. The signature appearing in the cheque issued register did not match with the signature of said Dwijen Basu in the account opening form. Thereafter, the appellant misutilised the said cheques and on 6.6.1977 passed a cheque No.699827 for Rs.10,800/- purportedly drawn by 'D. Bose' in favour of one P. Rama Rao through credit system although a credit balance of Rs.200/- only was standing in the account. On 9.6.1977 in similar manner the appellant cleared for payment another cheque bearing No.699828 dated 9.6.1977 of Rs.2000/- purportedly drawn by 'D. Bose' in favour of one B. Thaparia when there was a debit balance of Rs.10,600/- in the said account. The appellant thereafter passed for payment another cheque being No.699829 dated 16.6.1977 for Rs.8,000/- purportedly drawn by 'D. Bose' when there was a debit balance of Rs.21,800/- in the said account. Thereafter, the appellant again passed for payment a cheque being No.699830 dated 10.6.1977 for Rs.9,200/- purportedly drawn by 'D. Bose' when there was a debit balance of Rs.12,600/- in the said account. Finally, the appellant passed for payment another cheque being No.699831 dated 2.7.1977 for Rs.10,000/- when there was a debit balance of Rs.30,067.76/- in the said bank account. The said cheque was presented for payment by one Sri Inayatulla (P.W.16), a horse trainer from whom the appellant wished to purchase a horse. Such amount was given to Inayatulla as an advance and the payment was made by the then Chief Cashier, Sri Deb Das (P.W.11). The proposal for sale of horse did not materialize and subsequently Inayatulla claimed that the money was returned to the appellant. It is alleged that the appellant did not comply with the prescribed procedure of opening and operating a current account and dishonestly opened the current account in the name of Dwijen Basu. The specimen signature card of the standing in the name Dwijen Basu was not traceable in the records of the banks. The appellant was also violated the relevant procedure in the matter of sanctioning overdraft and did not make entry with regard to the overdraft drawls in the said account in the periodic reports to the head office.
Investigation commenced in the matter and sanction was obtained against the appellant as the appellant had dishonestly abused his official position and illegally prepared forged documents to open a current account in the name of Dwijen Basu and dishonestly passed for payment various cheques on the said account amounting to Rs.30,800/- in all through overdraft facilities. Specimen Signature as well as writing of 'D. Bose' and that of the appellant were taken and handwriting expert's opinion was obtained. In conclusion of investigation, P.W.21 (Investigating Officer) filed a petition of complaint against the appellant under sections 420/471/468 I.P.C. and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act. The trial Court took cognizance of the aforesaid offences and in the course of pre-charge evidence prosecution examined as many as twenty witnesses. The defence of the appellant was one of the innocence and false implication. It was the specific defence of the appellant that Dwijen Basu (P.W.4) had voluntarily opened a current account and specimen signature card was issued to him without a cheque book as the appellant as the Branch Manager had sent the matter for verification relating to the authenticity of the introducer of the said account. Subsequently, the appellant obtained the cheque book by signing on the cheque issued register and the cheques drawn on the said account were cleared by the appellant in ordinary course of business. In conclusion of trial, the trial Court by impugned judgment and order convicted and sentenced the appellant, as aforesaid.
Mr. Dutta, Amicus Curiae, submitted that the prosecution has failed to prove its case beyond reasonable doubt. The appellant, during his examination under Section 313 of Cr.P.C, had stated that PW-4 opened the current account in the branch but the specimen signature card was not issued to him immediately as the appellant had sent the papers for enquiry as to the authenticity of the introducer. He further submitted that it was the specific defence of the appellant that the cheque book was issued to PW-4 and he signed on the cheque issuing register. It was also his defence that the cheques were passed for clearing in the account of PW-4 in the ordinary course of business. It was further pleaded that there is no evidence that the appellant received the money upon enchasing the cheques in the said account. PW-11 is an unreliable witness as he is an accused in another criminal case at the behest of CBI. He accordingly pleaded for acquittal.
On the other hand, Mr. Ali, learned advocate appearing on behalf of the Central Bureau of Investigation submitted although the appellant himself had admitted that he had opened the current account in the name of P.W.4, D. Bose, the latter had categorically denied having opened the account or having received the specimen signature card. He also denied that he received the cheque book. P.W.19, handwriting expert opined that the signature and other writings on the specimen signature card, cheque issuing register and the cheques in question were not in the handwriting of P.W.4 but in the hand of the appellant. Evidence of the witnesses of the bank clearly show that the cheques were cleared for payment by the appellant as Branch Manager in violation of relevant rules and accordingly, payments were illegally made thereon causing wrongful loss to the bank. Hence, the appeal is liable to be dismissed.
From the nature of defence taken by the appellant that PW-4 had come to the branch to open a current account along with his brother in law, Shailendra Nath Mitra, as introducer and the appellant permitted him to open the account on that day but did not issue the cheque book of the said account as he sends the specimen signature card for verification of signature of the introducer, namely, Shailendra Nath Mitra, and subsequent upon receipt of such report, had issued cheque book to PW-4 upon his signing as 'D. Bose' in cheque book issuance register, it is important to consider the evidence of PW 4, Dwijen Basu in that regard.
PW-4, Dwijen Basu, deposed that he went to the Indian Bank, Russell Street Branch, along with his brother in law, Shailendra Nath Mitra for obtaining a business loan. The appellant asked him to fill up a form which he duly filled up excepting the date and signature of the bank officer (Exhibit-3). He did not remember the day on which he went to the bank. He deposed that as the bank demanded 18% interest on the loan, he was not willing to take the loan and left the bank after leaving the filled-up form in the hands of the appellant. He stated that the pay-in slip dated 8.2.77 and the 5 cheques dated 6.6.77, 10.6.77, 2.7.77, 9.6.77, and 16.6.77 were not in his handwriting, nor did he sign the said document or cheques in question. CBI took his specimen writings on 19.5.79 on papers S-13 to S-28, and signature on specimen cheques S- 29 to S-38 (Exhibit 4-4/15 and Exhibit 5-5/9). He did not receive any cheque book from the bank. He was shown the cheque issuing register, and he stated that he did not sign the name 'D. Bose' against the entry. (Exhibit-24) He further stated that the initial Exhibit-24/1 is not in his handwriting. He received letter dated 31.3.78 for confirmation of debit balance in his account. He replied to the said letter through his solicitors (Exhibit-6). In cross-examination he stated that he cannot say why he chose this particular bank. He further stated that he worked in the firm of his brother-in-law, Shailendra Nath Mitra.
The aforesaid evidence of P.W.4 clearly destroys the defence of the appellant that P.W.4 had voluntarily opened the current account in the branch and obtained the cheque book in respect of the said account.
Let me now examine whether the version of P.W.4 is supported by other witnesses, particularly the officers/employees of the bank.
P.W.1, 3, 5, 7, 8, 9, 10, 11, 13, 17, 18 and 20 are the employees/officers of the bank who were examined in this case. P.W.1, Deputy General Manager, Indian Bank, was the disciplinary authority of the appellant. He issued the sanction order (Exhibit-1). P.W.3 and 5 were officers of the Indian Bank. P.W.3 deposed that the appellant was dismissed from service on 31.12.1979. P.W.5 produced the appointment letter and the service records of the appellant (Exhibit-3 and 3/1).
P.W.7 and 8 are the ledger clerks attached to Indian Bank, Russel Street Branch at the material point of time. P.W.7 deposed that on 8.2.1977 he was working in current account section and used to maintain the ledger of current accounts. He deposed the procedure by which a current account was opened. He stated that in order to open a current account a fully filled up opening form and signature card must be authorized by the Manager. Cash deposit has to be made in the current account through pay-in-slip and the voucher of such cash deposit is to be sanctioned by the scroll officer. Upon the authorization of the Manager and the signature of the scroll officer the papers are placed before the dealing clerk who makes necessary entry in the ledger. Thereafter, the checking officer affixes his signature whereupon the account is opened. He stated that all documents were placed before him while opening the account of P.W.4. He also deposed that the cheques were cleared for payment on the account by the appellant although there was no requisite debit balance reflected in the funds book (Exhibit-8). The appellant had initialed in the funds book authorizing such payment notwithstanding inadequate debit balance.
P.W.8 was also the ledger clerk of savings and current accounts in the said branch. He received cheques from customers and verified the particulars of the account on which cheque was drawn. He deposed as to the procedure by which the cheques were cleared. He stated if the cheque was found satisfactory and there was sufficient fund in the account for passing the cheque he would debit the cheque amount from the account and put a ledger folio number on the cheque and also put his initial thereon. Then he would put pay-cash-stamp on the cheque and make entry in the token register. Then cheque along with the token register would be sent to the passing officer and if the passing officer passed the cheque it would be sent with the token register to the cashier and the cashier after making payment would keep the paid cheque with the chief cashier. If the fund was insufficient in the account he would make entry of the cheque amount in the fund book and would obtain necessary permission from the Manager for passing the cheque. The cheque along with the fund book would be sent to the Manager for an initial on the cheque for passing the cheque. If the cheque was not to be honoured the Manager would put an endorsement 'No' on the cheque and the same would thereafter be handed over to the customer upon his surrendering the token number and the token number would be scored out by him. If the Manager put his initial on the cheque and returned to him the cheque number would be tallied and the cheque would be debited in the particular account. Thereafter, he would make entry of the cheque in the token register and the cheque would be sent to the passing officer for clearance. In respect of cheques issued on the account of 'D. Bose', the funds book along with the cheques were presented to the Manager who passed the cheque for payment after putting his initial in the fund book (Exhibit-8). Thereafter, he put his initial and ledger folio number on the cheque after debiting the cheque amount from the account of 'D. Bose'. He also put pay-cash- stamp and his signature on the cheque.
It is pertinent to note that the appellant has, in fact, admitted his initials on all the five cheques which were passed for clearance in the account of 'D. Bose'. Such admission of the appellant is fortified by the evidence of P.W.7 and 8 who also deposed that the cheques drawn on an account which had insufficient debit balance required to be passed for payment by the Manager and the same was done by the appellant in the case of cheques drawn on the account of 'D. Bose'.
P.W.9, 11, 12 and 13 were the cashiers of the Russel Street Branch of the said bank. P.W.9 was the former cashier at the bank from 1972-
77. He stated that no current account could be opened without signature of the introducer. There is no signature of introducer in Exhibit-3. Manager puts signature for the verification of the signature of the party. Cheque facility could be granted on an account after depositing of Rs.500/-. He stated that the pay-in-slip (Exhibit-19) is in the handing writing of the appellant. He also stated that the cheque (Exhibit-20/4) bears the handwriting of the appellant in the body of the cheque and the signature on the cheque in the name of 'D. Bose' is also in the handwriting of the appellant. From 1974 the appellant is the Branch Manager of the bank. He stated that the cheque (Exhibit-20/3) was written in the handwriting of the appellant who also put the signature of Sudhir Chowdhury as the recipient of the money on the reverse of the cheque. The witness stated that the body of the cheque (Exhibit-20/2) as well as the signature of 'D. Bose' thereon was in the handwriting of the appellant. He deposed that cash payments were made in respect of cheques (Exhibit-20, 20/1, 20/2, 20/3 and 20/4). All the aforesaid cheques were passed for payment by the appellant as would appear from certified copy of the current accounts statement of the ledger of the concerned account (Exhibit-17). In cross-examination, he stated that he was not present in the bank when the cheques were cleared.
P.W.11 was the cashier of the branch at the relevant time and made payment in respect of cheques (Exhibit 20/2 and 20/3). He proved the signature of the appellant on the said cheques. He stated that the appellant passed the said cheques for payment and put the signature thereon (Exhibit 20/2/1 and 20/3/1). He stated that token No.6118 and 6136 were written on the said cheques (Exhibit 20/3 and 20/2). He deposed that the appellant used to receive payment against cheques presented on behalf of various customers while the said customers used to wait in his chamber. He stated that the cheque bearing No.699829 dated 16.6.1977 (Exhibit 20/3) was 'self-drawn cheque'. Signature of one Sudhir Chowdhury appears on the reverse of the cheque but he stated that Sudhir Chowdhury was not known to him. He deposed that cheque bearing No.699831 and 2.7.1977 (Exhibit 20/2) was passed for payment by the appellant and he made payment in respect of the cheque. In cross-examination after charge this witness failed to remember that he had deposed in Court. It appears that the witness had been won over during the interregnum.
P.W.12 is another cashier of the bank. He made payment in respect of cheque bearing no.699827 dated 6.6.1977 (Exhibit 20). The said cheque was passed for payment by the appellant (Exhibit 20/0/2). Exhibit 20/0/2 is a self-drawn by one 'D. Bose'. He could not say without perusing the token book to whom he made payment of the cheque. He, however, stated that as the paid stamp is there on the cheque definitely cashier made payment of the cheque. He also made payment in respect of cheque bearing No.699830 dated 10.6.1977 (Exhibit 20/1) which was a 'self-drawn cheque' drawn by 'D. Bose'. The said cheque was passed for payment by the appellant (Exhibit 20/1). He proved the token registers of the bank (Exhibit 18/3 and 18/4) wherein particular entries in respect of payment of the said cheques had been made.
P.W.13 is another cashier who paid cheque No.699828 dated 9.6.1977 (Exhibit 20/4). He made payment against the cheque to one B. Thaparia as would be evident from token register (Exhibit 18). The appellant had cleared the cheque for payment being Exhibit 20/4/1.
P.W.17 is the accountant of the bank at the relevant period. He proved the entries made in respect of the said cheques in the token register. He had proved that in the token register appellant had put his initial as the passing officer in respect of the said cheques.
P.W.18 is the clerk-cum-shroff of the branch. He proved the cheque issuing register (Exhibit 24) and the initial of the appellant (Exhibit 24/1). He also proved the relevant entries in the funds register (Exhibit 26) and in the ledger folio of the account (Exhibit 27). He proved the token numbers written by him on the respective cheques.
P.W.10 is an officer posted in the regional office of the bank in Calcutta. He deposed relating to the procedure for opening a current account. He stated that without introducer no current account could be opened. He further deposed that there was no introducer in Exhibit 3. He stated that only on a letter of a customer temporary overdraft facility could be extended. Entries had to be made in A.D.1 with regard to such overdraft granted and necessary entries are to be made in the monthly report (A.D. 29) to the head office relating to grant of temporary overdraft facility. In cross-examination he stated without a specimen signature card no current account could be opened.
P.W.20 was the Manager who succeeded the appellant at the said branch. He deposed that there was irregularity in opening the current account of P.W.4 as there was no introducer in Exhibit 3. He stated that cheques were passed for payment on the account with the permission of the Manager and limit of overdraft facility on an account in Russel Street Branch was Rs.20,000/-. He proved the A.D. return book wherefrom it appeared that overdraft relevant in the said account were not reflected in A.D. return book or A.D.29.
These are the witnesses for the prosecution on behalf of the bank. P.W.16 is another vital witness who is a dealer in race horses. He deposed that the appellant was known to him and intended to purchase a horse from him at the price of Rs.12,500/-. In July, 1977, the appellant called the witness to his chamber and gave him a cheque of Rs.10,000/-. He asked him to fill up the cheque and sign on the reverse of the cheque and the appellant went to the counter to encash the cheque while he remained in his chamber. The appellant brought Rs.10,000/- by encashing the cheque and gave the amount to him stating that after five days he would give the balance amount. When the witness went to collect the balance amount the appellant told that he did not intend to purchase the horse and the sum of Rs.10,000/- was refunded. The witness identified the cheque and his signature thereon (Exhibit 20/2/4). Specimen handwriting and signature of P.W.16 were collected by the Investigating Officer in the presence of P.W.15. Investigating Officer (P.W.21) also seized the specimen handwriting of the appellant (Exhibit 10 to 10/18 and his signatures (Exhibit 10/19 to 10/37) in the presence of P.W.14. Specimen signature of P.W.4, the appellant and P.W.16 were sent by the Investigating Officer for opinion of handwriting expert.
P.W.19 is an officer attached to the Government Examiner of questioned document, Ministry of Home Affairs, Government of India. He deposed that on 20.6.1979 the office received a requisition along with certain documents from S.P., C.B.I. for examination and opinion. He examined the questioned document and gave his report (Exhibit 29) which was forwarded to the C.B.I. under the forwarding letter (Exhibit
30).
From the report it appears that the appellant had written the cheques in question and had passed them for clearance and made initials on the cheques and the relevant registers. There was no signature of P.W.4 in the cheque issuance register but there were writings by the appellant.
From the aforesaid evidence on record it appears that the appellant had opened a current account in the name of P.W.4 using the account opening form (Exhibit 3) which did not bear a signature of an introducer. Relevant rules of the bank provide that a current account can be opened only if the application form is signed by an introducer. It is the contention of the appellant that the form filled up of the appellant was signed by his brother-in-law as introducer and as the latter did not have an account in the branch he had sent the papers for verification of the signature of introducer to another bank and upon receipt of report had issued the cheque book on the account to P.W.4. Such plea is not only negative by P.W.4 but is not supported by Exhibit 3 which does not bear the signature of the introducer. Pay-in-slip was also filled up by the appellant and not by P.W.4 probabilising the prosecution case that he had unauthorisedly misutilised the form filled up by P.W.4 to open the current account purportedly in the name of the said witness behind his back. There is also no evidence on record that the cheque book in the instant case was handed over to the appellant. Exhibit 24 is the cheque issuing register which bears initial of the appellant (Exhibit 24/1). There is a signature 'D. Bose' written on the said register but the same does not tally with the signature of P.W.4 in application form for opening current account. P.W.19 stated that questioned writing on Exhibit 24 is in the hand of the appellant and not of P.W.4. This evidence leaves no doubt in one's mind that cheque book in the said current account was never received by P.W.4 and the same was procured by the appellant and misutilised. Upon obtaining the cheque book, as aforesaid, the appellant abused his official position and illegally passed five cheques for payment on the account amounting to Rs.30,800/- although there was no sufficient debit balance in the said account. Such overdrawals were not only fraudulent but contrary to the procedure prescribed for permitting overdrawals on a current account and beyond the prescribed limit of the concerned bank. Necessary entries in the returns, namely, A.D.1 and A.D.29 to be furnished to the head office relating to overdrawals sanctioned in the branch were not furnished and there was also no request for overdrawals from the customer in the instant case.
All these evidence unerringly point to the role of the appellant in forging documents and thereby using the same for cheating the bank of the aforesaid amount. The appellant illegally opened the current account purportedly in the name of P.W.4 and passed for clearing five cheques on the said account notwithstanding the fact that there was no sufficient debit balance in the said account by abusing his official position. Accordingly, the appellant was rightly found guilty of the offences punishable under sections 420/468/471 I.P.C. and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947. Conviction of the appellant is thus upheld. Coming to the point of sentence, I find that the appellant as branch Manager of a bank had abused his official position and misappropriated a sum to the tune of Rs.30,800/-. Act of corruption by a public servant ought to receive extreme disapproval in the form of deterrent sentence. For this reason, although three decades may have lapsed in the meantime and the appellant appears to be a person advanced in age, I am not inclined in reducing the sentence imposed on the appellant. Hence, the sentence imposed upon the appellant is also upheld.
The appeal is, accordingly, dismissed.
The bail bond of the appellant is cancelled and he is directed to surrender forthwith before the trial Court and serve out the sentence immediately.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance and for execution of the sentence, as aforesaid.
I record my appreciation for the able assistance rendered by Mr. Dutta as amicus curiae to this Court for disposing of the appeal.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(JOYMALYA BAGCHI, J.) PA to J. Bagchi J.