Bangalore District Court
Annegowda vs The State Of Karnataka on 30 January, 2017
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 30th day of January 2017
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
Crl. Appeal No. 11/2008
Appellant : Annegowda,
Original-Accused No.1 S/o. Sannappa,
Aged about 62 years,
R/a. No.166, 15th Main, 4th Block,
Jayanagar,
Bengaluru.
Former-Manager of Apex Bank,
West of Chord Road,
2nd Stage Branch,
Bengaluru.
(By M/s. Tomy Sebastian Associates,
Advocates)
Vs.
Respondent : The State of Karnataka,
Original-Complainant Represented by it's
The Police Inspector,
Fraud Squad, C.O.D.
Bengaluru.
(By Public Prosecutor)
* * * *
JUDGMENT
This is an appeal preferred by the appellant/original-accused No.1 against the respondent/original-complainant U/Sec.374(2) of Cr.P.C., against the impugned-conviction judgment passed by the 2 Crl. Appeal No.11/2008 II ACMM Court, Bengaluru, in it's CC No.8055/1993, dated 22.12.2007/26.12.2007.
2. The original-accused No.1 before the trial court having preferred the instant-appeal against the original-complainant, as the appellant and the respondent, respectively, are hereby assigned with their original-ranks before the trial court i.e., the appellant as the accused No.1 and the respondent as the complainant in the instant-discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
3. This is a criminal-case at CC No.8055/1993 arising-out of the complaint filed by the complainant against the accused- person/s for the offences punishable U/Secs.409, 468, 471 & 477(A) of IPC.
4. The epitomized facts projected from the complaint before the trial court run thus:
The accused No's.1 & 2 being the Manager and Cashier, respectively, of the Apex Bank, West of Chord Road Branch, Bengaluru, have misappropriated the bank-amount to the extent of Rs.41,05,000/- by effecting the fake-entries, depicting the inflated-
payments and used for their self-purpose by making the criminal-
breach of trust. The said accused No's.1 & 2 in-furtherance of common-intention to misappropriate the funds of the said Apex Bank, forged the documents by showing the fake-entries as if the amounts have been withdrawn by the account-holders even though there was neither any instrument nor withdrawn the said 3 Crl. Appeal No.11/2008 amounts by the concerned account-holders. One Mohammed Samiulla (PW.1) having been appointed as Internal-Auditor to audit the books of the accounts of the said Apex Bank, West of Chord Road Branch, accordingly he has audited the same and submitted the first-interim-report (Ex.P.9) on 08.11.1991, in which he has detected 36 items of misappropriation during the period from 01.07.1991 to 31.08.1991, totally tantamounting to Rs.41,05,000/-, basing-on which the Managing Director of Karnataka State Co-operative Apex Bank Ltd., by name A. Sen Gupta (PW.18) directed the incumbent Manager of Apex Bank, West of Chord Road Branch, Bengaluru, by name Mayanna to lodge a complaint, in accordance with which the said Mayanna lodged a complaint in the Mahalakshmipuram police station on 09.11.1991 against the said accused No.1/appellant/Annegowda and the accused No.2/Jagannath at Cr.No.332/1991 for the offences punishable U/Secs.409, 468, 471 & 477(A) r/w Section 34 of IPC, for the alleged misappropriation of Rs.41,05,000/-.
5. Thereafter, the trial court has taken the cognizance of the offences punishable U/Secs.409, 468, 471 & 477(A) r/w Section 34 of IPC.
6. In response to the summons issued against the accused No.1, he has put-in his appearance before the trial court through his counsel.
4 Crl. Appeal No.11/2008
7. On moving for bail, the accused No.1 has been released on bail.
8. The copies of the complaint and other-documents were supplied to the accused No.1.
9. After hearing both the sides, the charges for the offences U/Secs.409, 471 & 477(A) r/w Section 34 of IPC were framed and the same were read-over and explained to the accused No.1 in the vernacular best-known to him.
10. The accused No.1 has denied the same and pleaded not guilty and further claimed to be tried.
11. In order to prove the guilt against the accused No.1, the prosecution has got examined the witnesses, in all, as PWs.1 to 26 and placed the reliance-on the documentations marked at Exs.P.1 to P.121.
12. After the complainant's-evidence was closed, as the incriminating circumstances were arising-out of the evidence of the complainant's-side witnesses, the statements of the accused No.1 under the provisions of Section 313 of Cr.P.C. were recorded.
13. The trial court having heard the arguments advanced by both the learned Sr. APP for the complainant as-well-as the learned counsel for the accused No.1, basing-on the material available on record from the complainant, the trial court has framed the points for it's consideration as under:
(1) Whether the prosecution proves that the present first accused-person colluded with the deceased second accused misappropriated the fund of the 5 Crl. Appeal No.11/2008 bank to the extent of Rs.40 lakhs and odd by way of criminal breach of trust and as such, the prosecution proves that the present first accused-
person has committed the offence under Sec.409 r/w Section 34 IPC?
(2) Whether the prosecution further proves that the first accused joined his hands with the second accused and forged the documents and used the same by making false-accounts and thereby the present accused has committed the offences Under Secs.471 & 477(A) r/w Sec.34 IPC?
(3) What order?
14. The trial court has given the findings on the points for consideration raised by it, as under:
Point No's.1 & 2 .. In the Affirmative.
Point No.3 .. As per the final-order,
for the following.
-------- and thereby convicted the accused No.1 by sentencing him to undergo a simple-imprisonment for 3 years and to pay a fine of Rs.5,000/- for the offence punishable U/Sec.409 of IPC and in-default of payment of the same, further simple-imprisonment for 6 months; and further convicted the accused No.1 by sentencing him to undergo a simple-imprisonment for 2 years and to pay a fine Rs.5,000/- for the offence punishable U/Sec.471 of IPC and in-default of payment of the same, further simple-imprisonment for 6 months; and further convicted the accused No.1 by sentencing him to undergo a simple-imprisonment for 2 years and to pay a fine of Rs.5,000/- for the offence punishable U/Sec.477(A) of IPC and the substantial-punishment of imprisonment shall run concurrently.
15. Being aggrieved by the impugned-judgment passed by the trial court, the appellant/original-accused No.1 before the trial court, has preferred the instant appeal against the 6 Crl. Appeal No.11/2008 respondent/original-complainant before the trial court, on the following:
GROUNDS OF APPEAL
(a) The judgment and order under the appeal is illegal, arbitrary and the same is passed without considering and appreciating the facts and circumstances of the case properly.
(b) The impugned-judgment and conviction and sentence passed by the trial court is contrary to the facts, material and evidence placed on record.
(c) The trial court has wrongly held that the accused No.1/appellant has shared the common-intention with the deceased accused No.2 in the commission of offence of criminal-breach of trust, forgery for the purpose of cheating and making use of the forged-documents for making false-entries as genuine for the purpose of committing the principal offence of criminal-breach of trust, punishable U/Sec.409 of IPC.
(d) The trial court has wrongly held the accused No.1/appellant to be guilty as having shared the common-intention with the deceased accused No.2 mainly on the vicarious liability, being Head of the Department.
(e) The trial court has wrongly held the accused No.1 having shared the common-intention with the accused No.2 in respect of the alleged offences primarily established against the deceased accused No.2 alone, solely on the basis of various signatures of the accused No.1/appellant in the various books of accounts.
(f) The trial court has improperly assessed the evidence of the prosecution-witnesses in finding the accused No.1/appellant guilty of the alleged offences even 7 Crl. Appeal No.11/2008 though there is no direct-evidence of participation of the accused No.1/appellant in the commission of various offences alleged.
(g) The trial court has wrongly placed it's implicit reliance-
on the two alleged confession-statements as per Exs.P.96 & P.97 and one declaratory-affidavit as per Ex.P.98 and totally brushed-aside the suggestions put to the witnesses and contention taken by the defence that the signatures of the appellant/accused No.1 were obtained by coercion and force.
(h) The trial court has misconceived the provisions of Section 24 of the Indian Evidence Act and wrongly arrived-at a conclusion holding that the accused No.1/appellant himself has voluntarily written the said letters.
(i) The various findings of the trial court being suffered from legal-infirmities, require re-appreciation by this court.
Hence, prayed for allowing the instant-appeal.
16. Per contra, the respondent/complainant has not filed any counter-objections to the instant-appeal-memo.
17. I have heard the arguments of the learned counsel for the appellant/accused No.1 as-well-as the learned Public Prosecutor for the respondent/complainant. Perused the written-arguments of the accused No.1/appellant.
18. Basing-on the material available on record and grounds of appeal, the points that arise for my consideration are:
(1) Whether the trial court has justified in convicting the accused No.1 by affirming 8 Crl. Appeal No.11/2008 the Point No's.1 & 2 raised for it's consideration holding that the accused No.1 colluded with the deceased accused No.2 and misappropriated the funds of the Apex Bank, West of Chord Road Branch, Bengaluru, to tune of Rs.41 lakhs and odd by way of criminal-breach of trust and also both the accused-persons joined their hands, forged the documents and used the same by effecting the false-entries in the accounts and etc., and thereby, the accused-persons committed the offences punishable U/Secs.409, 471 & 477(A) r/w Section 34 of IPC?
(2) Whether the impugned-judgment of the trial court is arbitrary, baseless, capricious, devoid of merits, erroneous, frivolous and perverse without being on the sound-
principles of law and warrants for the interference by the instant-court?
(3) To what order?
19. The findings on the above points are as under:
Point No.1 .. In the Affirmative
Point No.2 .. In the Negative.
Point No.3 .. As per the final-order, for
the following:
REASONS
20. The status and ranking assigned in the trial court to the complainant and the accused No.1 are being adopted and adhered- to in the instant-discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity. 9 Crl. Appeal No.11/2008
21. Point No's.1 & 2:- To avoid the reiteration of the material available in hand and to appreciate the evidence adduced before the trial court, in a better-position, I hereby take-up the instant Point No's.1 & 2 together admixingly for discussion.
22. It is the specific-contention of the complainant by way of his complaint that, the accused No's.1 & 2 being the Manager and Cashier, respectively, of the Apex Bank, West of Chord Road Branch, Bengaluru, have misappropriated the bank-amount to the extent of Rs.41,05,000/- by effecting the fake-entries, depicting the inflated-payments and used for their self-purpose by making the criminal-breach of trust. The said accused No's.1 & 2 in- furtherance of common-intention to misappropriate the funds of the said Apex Bank, forged the documents by showing the fake- entries as if the amounts have been withdrawn by the account- holders even though there was neither any instrument nor withdrawn the said amounts by the concerned account-holders. One Mohammed Samiulla (PW.1) having been appointed as Internal-Auditor to audit the books of the accounts of the said Apex Bank, West of Chord Road Branch, accordingly he has audited the same and submitted the first-interim-report (Ex.P.9) on 08.11.1991, in which he has detected 36 items of misappropriation during the period from 01.07.1991 to 31.08.1991, totally tantamounting to Rs.41,05,000/-, basing-on which the Managing Director of Karnataka State Co-operative Apex Bank Ltd., by name A. Sen Gupta (PW.18) directed the incumbent Manager of Apex 10 Crl. Appeal No.11/2008 Bank, West of Chord Road Branch, Bengaluru, by name Mayanna to lodge a complaint, in accordance with which the said Mayanna lodged a complaint in the Mahalakshmipuram police station on 09.11.1991 against the said accused No.1/appellant/Annegowda and the accused No.2/Jagannath at Cr.No.332/1991 for the offences punishable U/Secs.409, 468, 471 & 477(A) r/w Section 34 of IPC, for the alleged misappropriation of Rs.41,05,000/-.
23. To substantiate it's case, the prosecution has got examined the evidence of the witnesses, in all, as PWs.1 to 26, in which CW.1/Mohammed Samiulla is examined as PW.1, who is the Internal-Auditor having been appointed by the Managing Director of Apex Bank to inspect the accounts of Apex Bank, West of Chord Road Branch, Bengaluru; CW.4/Chikkana Gowda is examined as PW.2, who is the Asst. Manager of Janatha Co-operative Bank having the SB Account No.1155 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.5/M.Y.Doddamani is examined as PW.3, having the SB Account No.617 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.3/Kempegowda is examined as PW.4, who is the Manager of Citizen Co-operative Bank, having the SB Account No.108 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.6/G. Gopalakrishna is examined as PW.5, who is the Current Account Holder No.241 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.7/Srikanta L. Jattyan is examined as PW.6, who is the Secretary of Ananda Co-operative Bank, having SB Account 11 Crl. Appeal No.11/2008 No.3612 with the Apex Bank, West of Chord Branch, Bengaluru; CW.9/Sathish is examined as PW.7, who is having the SB Account No.1385 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.10/H. Ramaiah is examined as PW.8, who is having the SB Account No.4673; CW.15/Dr. Thimmegowda is examined as PW.9, who is having the SB Account No.5678 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.12/Harsha Kumar is examined as PW.10, who is the circumstantial-witness. having the SB Account No.669 in the name of his grand-father/Dr. B.M.Channabasappa with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.14/G.S. Umesh is examined as PW.11, who is having joint SB Account No.4653 with his friend/Shankara Shetty with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.19/C. Ramanna Gowda is examined as PW.12, who is the President of Kengal Credit Co-operative Society, having SB Account No.1705 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.26/S.V. Nagaraj is examined as PW.13 who is the circumstantial-witness; CW.18/Bapuji is examined as PW.14, who is having the SB Account No.448 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.21/Smt V. Radhamma is examined as PW.15 who is the wife of the accused No.1, having the SB Account No.4758 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.13/Puttaraja is examined as PW.16, who is having the SB Account No.2296 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.17/Rajagopal 12 Crl. Appeal No.11/2008 is examined as PW.17, who is having the SB Account No.4908 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.35/A. Sen Gupta is examined as PW.18, who is the Managing Director of Karnataka Co-operative Apex Bank; CW.20/Jagadish is examined as PW.19, who is having the SB Account No.5900;
CW.30/Badrinath is examined as PW.20, who is the Managing Director of Karnataka State Co-operative Federation and Secretary of Karnataka State Co-operative Apex Bank; CW.37/P.P. Vasanthakumar is examined as PW.21, who is a Clerk in H & B Section of Apex Bank, West of Chord Road Branch, Bengaluru; CW.15/Sathyanarayana Prasad is examined as PW.22, whose sister's had SB Account No.5826 with the Apex Bank, West of Chord Road Branch, Bengaluru; CW.34/B.P. Raju is examined as PW.23, who was working in the Head Office of Karnataka Co-
operative Apex Bank, during the year 1991;
CW.39/Lakshminarayana is examined as PW.24, who is the Handwriting-Expert; CW.41/N. Chalapathi is examined as PW.25, who is the partial-investigating-officer of initial-portion of investigation; and CW.43/Vasanth is examined as PW.26, who is the partial-investigating-officer in respect of the further- investigation, and thereby placed the reliance-on the documentations marked at Exs.P.1 to P.121, in which Ex.P.1 is the copy of circular, Ex.P.2 is the cashier's cash-scroll, Ex.P.2(a) is the relevant-page bearing No.161, Ex.P.2(a-2) is the cash-balance- entry, Exs.P.2(a-3) to P.2(a-5) are the signatures of the accused 13 Crl. Appeal No.11/2008 No's.1 & 2, Ex.P.2(a-6) is the relevant-entry, Ex.P.2(a-7) is the relevant-entry, Ex.P.2(a-8) & P.2(a-9) are the signatures of the accused No's.1 & 2, Ex.P.2(a-10) is the relevant-entry, Ex.P.2(a-11) to P.2(a-13) are the signatures of the accused No's.1 & 2, Ex.P.2(a-
14) is the relevant-entry, Ex.P.2(a-1) is the signature of the accused No.2, 2(a-1) is the signature of the accused No.2, (a-2) & (a-3) are the relevant-entries, (a-4) is the signature of the accused No.1, (a-5) is the signature of the accused No.2, (a-6) & (a-7) are the relevant-entries, (a-8) is the signature of the accused No.1, (a-
9) is the signature of the accused No.2, (a-10) & (a-11) are the relevant-entries, (a-12) is the signature of the accused No.1, (a-13) is the signature of the accused No.2, (a-14) is the relevant-entry, (a-15) is the signature of the accused No.1, (a-16) is the signature of the accused No.2, (a-17) & (a-18) are the relevant-entries, (a-19) is the signature of the accused No.1, (a-20) is the signature of the accused No.2, (a-21) & (a-22) are the relevant-entries, (a-23) is the signature of the accused No.1, (a-24) is the signature of the accused No.2, (a-25) & (a-26) are the relevant-entries, (a-27) is the signature of the accused No.2, (a-28) & (a-29) are the relevant- entries, (a-30) is the signature of the accused No.1, (a-31) is the signature of the accused No.2, (a-32) & (a-33) are the relevant- entries, (a-34) is the signature of the accused No.1, (a-35) is the signature of the accused No.2, (a-36) to (a-38) the relevant-entries, (a-39) is the signature of the accused No.1, (a-40) is the signature of the accused No.2, (a-41) & (a-42) are the relevant-entries, (a-43) 14 Crl. Appeal No.11/2008 is the signature of the accused No.1, (a-44) is the signature of the accused No.2, (a-45) & (a-46) are the relevant-entries, (a-47) is the signature of the accused No.1 (a-48) is the signature of the accused No.2, (a-49) to (a-53) are the relevant-entries, (a-54) is the signature of the accused No.1, (a-55) is the signature of the accused No.2, (a-56) & (a-57) are the relevant-entries, (a-58) is the signature of the accused No.1, (a-59) is the signature of the accused No.2, (a-60) is the relevant-entry, (a-61) is the signature of the accused No.1, (a-62) is the signature of the accused No.2, (a-
63) is the relevant-entry, (a-64) is the signature of the accused No.1, (a-65) & (a-66) are the relevant-entries, (a-67) is the signature of the accused No.1, (a-68) is the signature of the accused No.2, (a-69) & (a-70) are the relevant-entries, (a-71) is the signature of the accused No.1, (a-72) is the signature of the accused No.2, (a-73) & (a-74) are the relevant-entries, (a-75) is the signature of the accused No.1, (a-76) is the signature of the accused No.2, (a-77) & (a-78) are the relevant-entries, (a-79) is the signature of the accused No.1, (a-80) is the signature of the accused No.2, (a-81) & (a-82) are the relevant-entries, (a-83) is the signature of the accused No.1, (a-84) is the signature of the accused No.2, (a-85) & (a-86) are the relevant-entries, (a-87) is the signature of the accused No.1, (a-88) is the signature of the accused No.2, (a-89) & (a-90) are the relevant-entries, (a-91) is the signature of the accused No.1, (a-92) is the signature of the accused No.2, (a-93) to (a-95) are the relevant-entries, (a-96) is the 15 Crl. Appeal No.11/2008 signature of the accused No.1, (a-97) is the signature of the accused No.2, (a-98) & (a-99) are the relevant-entries, (a-100) is the signature of the accused No.1, (a-101) is the signature of the accused No.2, (a-102) is the relevant-entry, Ex.P.2 is the relevant- entry, Ex.P.2(7) is the signature of the accused No.2, Ex.P.2(8) & P.2(b) are the relevant-entries, Ex.P.2(c) is the signature of the accused No.2, Ex.P.2(d) is the signature of the accused No.1, Ex.P.2(e) is the another-signature of the accused No.2, Ex.P.2(f) is the relevant-entry of Page No.163, Ex.P.2(g) is the relevant-entry of Page No.167, Ex.P.2(h) is the relevant-entry of Page No.165, Ex.P.2(i) is the relevant-entry, Ex.P.2(j) is the signature of the accused No.1, Ex.P.2(k) is the signature of the accused No.2, Ex.P.2(l) is the relevant-entry of Page No.171, Ex.P.2(m) is the relevant-entry of Page No.168, Ex.P.2(n) is the signature of the accused No.1, Ex.P.2(o) is the signature of the accused No.2, Ex.P.2(s) is the relevant-entry, Ex.P.2(t) is the relevant-entry, Ex.P.2(u) is the signature of the accused No.2, Ex.P.2(v) is the signature of the accused No.1, Ex.P.2(w) to P.2(y) are the relevant- entries, Ex.P.2(z) is the signature of the accused No.1, Ex.P.3 is the long-book, Ex.P.3(a) is the relevant-entry at Page No.3, Ex.P.3(a-
17) is the relevant-entry, Ex.P.3(b) is the relevant-entry of cash- column, Ex.P.3(c) is the relevant-entry, Ex.P.3(d) is the handwriting of accused No.2, Ex.P.3 is the relevant-entries dated 07.07.1991 at Page No's.31 to 33, Exs.P.3(f) & P.3(g) are the relevant-entries, Ex.P.3(h) is the signature of the accused No.2, 16 Crl. Appeal No.11/2008 Ex.P.3(i) is the relevant-entry, Ex.P.3(j) is the relevant-entry at Page No.38, Exs.P.3(k), P.3(s) & P.3(t) are the relevant-entries, Ex.P.3(u) is the signature of the accused No.1, Exs.P.3(v) to P.3(z) are the relevant-entries, Ex.P.4 is the day-book, Ex.P.4(a) is the relevant-entry, (a-2), (a-4) & (a-6) are the initials of accused No.1, Exs.P.4(a-1 to a-40) are the relevant-entries, (a-8) is the signature, (a-10) & (a-12) are the signatures of the accused No.1, (a-16), (a-
17), (a-20) & (a-22) are the initials of accused No.1, (a-24) is the signature of the accused No.1, (a-26) & (a-28) are the initials of accused No.1, (a-30) & (a-32) are the signatures of the accused No.1, (a-34), (a-36), (a-38) & (a-40) are the initials of accused No.1, Ex.P.4(b) is the signature of the accused No.2, Ex.P.4(c) is the signature of the accused No.1, Exs.P.4(d) & P.4(e) are the relevant- entries, Ex.P.4(f) is the signature of the accused No.1, Ex.P.4(g) is the signature of the accused No.2, Ex.P.4(h) is the relevant-entry, Ex.P.4(i) is the signature of accused No.1, Exs.P.4(I) to P.4(Z) are the relevant-entries, Ex.P.4(m) is the signature of the accused No.1, Ex.P.4(p) is the relevant-entry at Page No.7, Ex.P.4(q) is the initial of accused No.1, Ex.P.4(r) is the relevant-entry, Exs.P.4(s) & P.4(u) are the initials of accused No.1, Exs.P.4(I) to (Z) are the relevant-entries, (a-2), (a-4) & (a-6) are the initials of accused No.1, Exs.P.4(a-1) to (a-40) are the relevant-entries, (a-8) is the signature, (a-10) & (a-12) are the signatures of the accused No.1, (a-16), (a-17), (a-20) & (a-22) are the initials of accused No.1, (a-24) is the signature of the accused No.1, (a-26) & (a-28) are the initials 17 Crl. Appeal No.11/2008 of accused No.1, (a-30) & (a-32) are the signatures of the accused No.1, (a-34), (a-36), (a-38) & (a-40) are the initials of accused No.1, Ex.P.5 is the General-Ledger, Ex.P.5(i) is the entry at Page No.1105, Ex.P.5(a) is the relevant-entry of Page No.105, Ex.P.5(b) is the relevant-entry, Ex.P.5(c) is the signature of the accused No.1, Ex.P.5(d) is the relevant-entry of Page No.105, Exs.P.5(f), P.5(g), P.5(h), P.5(j) & P.5(k) are the relevant-entries, Ex.P.5(e) is the relevant-entry of Page No.105, Ex.P.6 is the is the SB Bank & SB Society's Ledger, Ex.P.6(a) is the relevant-entry at Page No.173, Ex.P.6(b) is the Debit relevant-entry, Ex.P.7 is the SB individual account's ledger-sheet-book, Ex.P.7(a) is the relevant-entry of Ex.P.7, Exs.P.7(b) to P.7(e) are the relevant-entries, Ex.P.7(f) is the relevant-debit-entry, Ex.P.8 is the call-deposit-ledger, Ex.P.9 is the six-sheets of interim-report, Ex.P.10 is the withdrawal-form, Exs.P.11 to P.16 are the cheques, Exs.P.16(a) is the signature of the accused No.1, Exs.P.17 to P.22 are the cheques, Ex.P.19(a) is the relevant-entry, Exs.P.19(b) & P.19(c) are the signatures of the PW.9, Exs.P.20(a) to P.22(a) are the signatures of the accused No.1, Exs.P.23 & P.24 are the cheques, Exs.P.23(a) & P.24(a) are the signatures of the accused No.1, Ex.P.25 is the long-book, Exs.P.25(a) to P.25(m) are the relevant-entries, Ex.P.26 is the cheque, Ex.P.26(a) is the signature of the accused No.2, Exs.P.27 to P.28 are the cheques, Exs.P.27(a) & P.28(a) are the signatures of the accused No.1, Ex.P.29 is the withdrawal-form, Ex.P.29(a) is the signature of the accused No.1, Ex.P.30 is the cheque, Ex.P.30(a) is 18 Crl. Appeal No.11/2008 the signature, Exs.P30(b) & P.30(c) are the signatures of the PW.5, Ex.P.31 is the current-account-ledger, Ex.P.31(a) is the relevant- entry, Ex.P.32 is the withdrawal-form, Ex.P.32(a) is the signature of the accused No.1, Ex.P.33 is the cheque, Ex.P.33(a) is the signature of the accused No.1, Ex.P.34 is the cheque, Ex.P.34(a) is the signature of the accused No.1, Ex.P.35 is the cheque, Ex.P.35(a) is the signature of the accused No.1, Ex.P.36 is the cheque, Ex.P.36(a) is the signature of the accused No.1, Ex.P.37 is the cheque dated 01.08.1991, Ex.P.37(a) is the signature of the accused No.1, Ex.P.38 is the cheque dated 02.08.1991, Ex.P.38(a) is the signature of the accused No.1, Ex.P.39 is the cheque dated 04.08.1991, Ex.P.39(a) is the signature of the accused No.1, Exs.P.40 to P.47 are the cheques, Exs.P.48 is the withdrawal-form, Ex.P.48(a) is the signature of the PW.14, Ex.P.49 is the cheque, Exs.P.54 to P.58 are the 5 sheets containing the signature of accused No.1 (weekly-statements), Ex.P.59 is skipped, Ex.P.60 is the passbook, Ex.P61 is the pay-in-slip, Ex.P.62 is the counterfoil, Exs.P.63 & P.64 are the cheques, Ex.P.65 is the counterfoil, Ex.P.66 is the pay-in-slip, Ex.P.67 is the counterfoil, Ex.P.68 is the pay-in-slip, Ex.P.69 is the passbook, Ex.P.69(a) is the relevant- entry, Ex.P.70 is the counterfoil, Ex.P.71 is the passbook, Ex.P.71(a) is the relevant-entry, Ex.P.72 is the passbook, Ex.P.72(a) is the relevant-entry, Ex.P.73 is the counterfoil, Exs.P.74 to P.81 are the 8 cheques, Ex.P.82 is the passbook, Exs.P.82(a) to P.82(k) are the relevant-entries, Ex.P.83 is the 19 Crl. Appeal No.11/2008 passbook, Ex.P.83(a) is the relevant-entry, Exs.P.83 to P.86 are the 4 cheques, Ex.P.87 is the passbook of PW.17, Ex.P.86 is the passbook of PW.16, Ex.P.88 is the counterfoil of the cheque dated 04.08.1991, Ex.P.89 is the passbook of PW.8, Ex.P.89(a) is the relevant-entry, Ex.P.90 is the passbook of Dr. B.M.Chennabasappa, Ex.P.90(a) is the relevant-entry, Ex.P.91 is the counter of cheque, Ex.P.91(a) is the counterfoil of the said account, Ex.P.92 is the passbook, Ex.P.92(a) is the relevant-entry, Ex.P.93 is the certified-copy of the passbook, Ex.P.93(a) is the relevant-entry, Exs.P.94 & P.95 are skipped, Ex.P.96 is the letter dated 09.11.1991, Ex.P.96(a) is the signature of the accused No.1, Ex.P.97 is the letter dated 05.12.1991, Ex.P.97(a) is the endorsement, Ex.P.97(b) is the signature of the accused No.1, Ex.P.98 is the affidavit, Ex.P.98(c) is the signature of the accused No.1, Exs.P.98 & P.99 are the two-letters of the accused, Exs.P.98(a) & P.99(a) are the endorsement of letters of Exs.P.98 & P.99, Ex.P.100 is the sheet on signature of accused No.1, Exs.P.101 to P.105 are the specimen-signatures of the accused No.2 in five-sheets, Exs.P.102 & P.106 are the two pass-books, Ex.P.106(a) is the relevant-entry, Ex.P.107 is the service-register of Jagannatha, Ex.P.108 is the transfer-order, Ex.P.109 is the duty- report, Ex.P.110 is the suspension-order of the accused No.2, Ex.P.111 is the service-register of the accused No.1, Ex.P.112 is the transfer-order of the accused No.1 to West of Chord Road Branch, Ex.P.113 is the relieve-order dated 27.02.1988, Ex.P.114 20 Crl. Appeal No.11/2008 is the transfer-order dated 03.10.1991, Ex.P.115 is the duty-report of Annegowda, Ex.P.116 is the suspension-order of the accused No.1, Ex.P.117 is the specimen-signature of the accused No.2, Ex.P.118 is the report given by the PW.24, Ex.P.118(a) is the signature of the PW.24, Ex.P.119 is the opinion given by the PW.24, Ex.P.119(a) is the signature of the PW.24, Ex.P.120 is the complaint lodged by the CW.2, Ex.P.120(a) is the signature of the PW.25, Ex.P.121 is the First Information Report and Ex.P.121(a) is the signature of the PW.25.
24. To rebut the case of the complainant-prosecution, the accused No.1 has failed to adduce the rebuttal oral-evidence nor placed his reliance-on the documentations.
25. On marshalling the available material on record inclusive of the oral as-well-as documentary-evidence from the complainant- prosecution's-side, it is clear that, there are the allegations against the instant accused No.1, in respect of he having committed the offences punishable U/Secs.409, 471 & 477(A) of IPC and the trial court has convicted him accordingly, for the said offences.
26. Prior to harping-upon the merits of the case, it is significant to note that, during the instant lis pendence under the criminal-appeal on the file of this court, on 23.11.2015 the learned counsel for the accused No.1/appellant has filed an application U/Sec.311 r/w Section 391 of Cr.P.C., to summon the PWs.1 to 14 & 16 to 26 for further-cross-examination to disprove the case of the prosecution, as the documents produced by the prosecution 21 Crl. Appeal No.11/2008 and also the statements of witnesses before the investigating- officer are contradicting each-other.
27. In-spite of the said application U/Sec.311 r/w Sec.391 of Cr.P.C. dated 23.11.2015 having filed by the accused No.1, again similar-application has been filed on 28.12.2016 U/Sec.391 of Cr.P.C. seeking-for recalling the PW.1/Samiulla in CC No.8055/1993 for further cross-examination, on the similar- grounds.
28. Per contra, the learned Public Prosecutor has filed his sturdy-objections denying the entire-contents of the said application dated 23.11.2015 and resisting the same sturdily and further contended that, already all the witnesses have been duly examined by the prosecution and accordingly, they have been cross-examined by the learned counsel for the accused in-extenso and basing-on the material placed on record, the accused No.1 has been convicted by the trial court and now the accused No.1 with an ulterior-motive to fill-up the lacunas and make the improvements in the defence and etc., trying to see that the further PWs.1 to 4 & 16 to 26 are permitted to be cross-examined by the accused No.1's side so as to create certain contradictions to get assisted in favour of him, but the said application itself is not acceptable and maintainable in view of already the trial court having convicted the said accused No.1 on merits basing-on the available material and the judgment in Crl. Appeal No.174/2012, dated 19.01.2012 by the Hon'ble Supreme Court of India, is not 22 Crl. Appeal No.11/2008 applicable to the case in hand in view of the facts and circumstances are unlike in the instant-case in hand from the one prevailing therein the said decision and therefore, the said application being fit for rejection, sought-for rejecting/dismissing the said application, accordingly.
29. Even, the learned Public Prosecutor has filed his sturdy- objections denying the entire-contents of the said application dated 28.12.2016 on the same-line, as contended in his objections to the application of the instant-accused No.1/appellant dated 23.11.2015 and thereby, sought-for rejecting/dismissing the instant-application dated 28.12.2016 also.
30. Having heard both the sides on the said applications also along-with the main-appeal itself, it is incumbent-upon this court to look-into as to whether the said applications filed by the accused No.1 U/Sec.311 r/w Section 391 of Cr.P.C. dated 23.11.2015 and vide application U/Sec.391 of Cr.P.C. dated 28.12.2016 are entertainable, at this stage and also whether they deserve to be allowed?.
31. It is pertinent to note that though the relief sought-for in the application dated 23.11.2015 being to the larger-extent for recalling the PWs.1 to 4 & 16 to 26 for further-cross-examination, the relief sought-for in the vide application dated 28.12.2016 for recalling the PW.1 alone for further-cross-examination, the question of any-more weightage to the latter-application dated 23 Crl. Appeal No.11/2008 28.12.2016 does-not prevail with bearing in view of the similar nature of reliefs sought-for.
32. It is no doubt, the learned counsel for the accused No.1 has placed his reliance-on a ruling reported in 2012 AIR SCW 953 (From : Delhi) = AIR 2012 SC (Criminal) 458 (From : Delhi) = 2012 Cri.L.J. 1320 (Supreme Court) (From : Delhi), in a case between Sudevanand Vs. State through CBI (Crl. Appeal No.174/2012 - Decided on 19.01.2012), which reads thus:
"Criminal P.C. (2 of 1974) - S.311, 391 - Evidence Act (1 of 1872), S.145 - Summoning-witness for cross- examination - Application for, before High Court - Delay in filing application cannot be sole-ground for it's rejection. (Para 18) Criminal P.C. (2 of 1974) - S. 391 - Summoning approver for further-examination - Application for - Cannot be rejected only on ground that statement of approver allegedly made in jail has no legal sanctity and was not properly recorded. (Para 31) Criminal P.C. (2 of 1974) - S.391, 311 - Evidence Act (1 of 1872), S. 145 - Summoning-witness for cross- examination - Rejection of application for - Validity - Accused persons convicted on basis of evidence of approver - Approver retracted from his earlier- statements incriminating himself and other-accused in trial of another-case - Approver making diametrically opposite- statements but the CBI and the State (CID) seem to be at loggerheads with one accusing the other of manipulating and using him for it's own designs - Order of High Court refusing to summon approver for his further- examination."
33. On perusal of this particular settled principle of law, it is no doubt the delay in filing such application U/Sec.311 of the Indian Evidence Act, 1872, shall not be the sole-ground for it's rejection. It is pertinent to note that, on meticulous-perusal of the entire said citation, the said principle laid-down by the Hon'ble Supreme Court of India, is absolutely basing-on the peculiar-facts 24 Crl. Appeal No.11/2008 and circumstances in a given set therein. But, the facts and circumstances prevailing in the said are unlike from the one prevailing in the instant-case in hand. It is significant to note that, the said PWs.1 to 14 & 16 to 26 have been cross-examined duly in- extenso by the learned counsel for the accused No.1 before the trial court long-back itself, which is absolutely apparent on the facet of records. Basing-on the said available material, the trial court has pronounced the judgment by way of conviction against the accused No.1.
34. Now, at this point of juncture, the learned counsel for the accused No.1 has endeavored to draw the attention of this court contending that the cross-examination has been made only with respect to 23 entries though there are total 26 entries, but no cross-examination made with regard to the remaining 3 entries, wherefore, they need to be cross-examined. It is also urged that, regarding Exs.P.1 to P.60 the evidence has been adduced, but no cross-examination has been made regarding the other-exhibits. It is pertinent to note that, the entire-deposition of PW.1 itself is running about 146 pages, in which the lengthy-cross-examination runs for about 42 pages commencing from the date 20.02.1997 and ended by 06.08.1998. At this stage, after the lapse of about 16 years approximately, the instant-application has been filed before this court. If really there was a genuine-reason and ground to seek for any relief as sought-for in the application, the accused No.1 could have filed an application before the trial court itself 25 Crl. Appeal No.11/2008 before it's disposal because, the said judgment has been pronounced by the trial court on 22.12.2007 i.e., after about 9 and odd-years from the date of completion of cross-examination of PW.1. It is no doubt, the delay does-not tantamount to be as the sole-ground for rejection/dismissal of such application, as per the afore-stated principle of law. But, in the instant-case in hand, the cross-examination itself has been made at much-length covering each and every aspects basing-on which the conviction having been pronounced by the trial court on merits, it clearly goes to indicate that the accused No.1 intends to fill-up the lacuna or extract some favourable contradictions and infirmities through the mouths of the PWs.1 to 14 & 16 to 26 at this highly belated-stage because, it has also been urged by the learned counsel for the accused No.1 at the time of canvassing the oral-arguments also, that the case has been compromised in respect of which resolution has been passed. Therefore, it clearly goes to indicate that only to fulfill the purpose of the said resolution with regard to compromise already entered-into as per the submission of the learned counsel for the accused No.1; now by recalling the PWs.1 to 14 & 16 to 26, the accused No.1 intends to cross-examine them, furthermore and get the admissions contrary to the prosecution to demolish and dismantle the extend of creditworthiness which is already prevailing in favour of the prosecution's-case so as to see that the accused No.1 is relieved from the pronouncement of conviction by the trial court, through this court. Therefore, to put-into simple- 26 Crl. Appeal No.11/2008 terms, the very-intention of moving the instant-applications itself clearly goes to indicate the malafideness with the accused No.1, which certainly deserve to be stunned. The facts and circumstances one prevailing therein the said citation are unlike from the one prevailing in the instant-case in hand, wherefore, the accused No.1 does-not deserve for invoking the aid and assistance for the said citation. Under all these circumstances, this court is of the clear opinion that the said applications of the accused No.1 does-not deserve to be allowed, whereas, it certainly deserve to be rejected/dismissed on the facet itself as the very-intention behind the said application clearly implies and indicates that the accused No.1 intends to take the best-use of the lapse of the period after closure of the prosecution's-side evidence till today, which also certainly affects the memory of the said witnesses with respect to the facts and circumstances of the case as-well-as their earlier- versions deposed before the trial court. Hence, the said applications are hereby rejected/dismissed and ordered accordingly.
35. It is further pertinent to note that, another-application U/Sec.320(2) of Cr.P.C. has been filed on 28.12.2016 itself for accepting the same and passing the appropriate-orders.
36. As against the same, the learned Public Prosecutor has filed his sturdy-objections contending that the said application itself is not maintainable, and etc., and thereby, sought-for rejecting/dismissing.
27 Crl. Appeal No.11/2008
37. Having heard both the sides on this application also along-with the above said application dated 28.12.2016 filed U/Sec.391 of Cr.P.C., on perusal of the contents of Para No.18 in the application filed U/Sec.320(2) of Cr.P.C., it has been contended as under:
"The appellant has filed an application under Sec.391 of Cr.P.C. praying for recalling PW.1 for further- cross-examination for the reasons set-out in the said application. If the said application is allowed, the PW.1/Samiulla will render such evidence which is necessary and helpful for this Hon'ble Court to hold that the appellant is not guilty of non-compoundable offences namely offences U/Secs.409, 471, 477(A) of IPC with which the appellant is convicted and sentenced. Thus, orders on this application can be passed after PW.1/Samiulla is further-cross-examined, subject to the application U/Sec.391 of Cr.P.C. is allowed. "
38. On plain-perusal of the said contents in the said paragraph as culled-out herein before supra, the instant- application filed U/Sec.320(2) of Cr.P.C. is absolutely subject to the orders on the afore-stated vide-application filed U/Sec.391 of Cr.P.C. dated 28.12.2016. But, for the reasons stated herein before supra, the said application filed U/Sec.391 of Cr.P.C. dated 28.12.2016 itself has been rejected/dismissed. Consequent-upon the same, the instant-application filed U/Sec.320(2) of Cr.P.C. does-not survive for further-consideration, wherefore, at the very outset, the instant-application filed U/Sec.320(2) of Cr.P.C. also deserves for rejection/dismissal. Accordingly, ordered and rejected/dismissed the instant-application filed U/Sec.320(2) of Cr.P.C. also.
28 Crl. Appeal No.11/2008
39. Now, on coming-over to the merits of the case, admittedly, the charge-sheet has been filed by the investigating- officer for the alleged offences punishable U/Secs.409, 468, 471 & 477(A) r/w Section 34 of IPC, whereas, considering the material placed on record by the police-investigation-agency and hearing on both the sides, the trial court has framed the charges only in respect of the offences punishable U/Secs.409, 471 & 477(A) r/w Section 34 of IPC against the accused No.1/Annegowda S/o Sannappa/appellant and another-accused No.2/B.N.Jagannath S/o Late B.M. Narayana who having been reported to be demised during the lis pendence before the trial court, the said-case came to be abated against the accused No.1, wherefore, the case was proceeded for decision only against the accused No.1/Annegowda/instant-appellant.
40. Accordingly, it is incumbent-upon this court to delve-into the material available on record with respect to the aspect as to whether the prosecution has well-established and proved the alleged offences punishable U/Secs.409, 471 & 477(A) r/w Section 34 of IPC.
41. In connection with the same, it is clear on record that the prosecution has got examined the PWs.1 to 26 and also placed it's reliance-on the documents marked at Exs.P.1 to P.121 & P.121(a), in respect of which the detailed-narration has been made herein before supra.
29 Crl. Appeal No.11/2008
42. The star and prime-witness of the prosecution is the PW.1 who is one Mohammed Samiulla having been appointed as Internal-Auditor to inspect and check the accounts of Apex Bank, West of Chord Road Branch, Bengaluru, by the PW.18/A. Sen Gupta, Managing Director of Apex Bank, has deposed in detail in- extenso with respect to he having audited the books of accounts of the said Apex Bank, West of Chord Road Branch, Bengaluru, and submitted the first-interim-report as per Ex.P.9 on 08.11.1991 by detecting 36 items of misappropriation during the period from 01.07.1991 to 31.08.1991, totally amounting to the tune of Rs.41,05,000/-, by detecting the same through his audit, and admittedly, the PWs.3, 5, 7 to 11, 14 to 17, 19 & 22 are the individual account-holders against whose cheques and withdrawal- forms, inflated-entries have been effected. Similarly, the officials of the banks and societies whose accounts are with the said Apex Bank, West of Chord Road Branch, Bengaluru, their account- numbers/cheques have been inflated and entries are effected in Ex.P.2 and therefore, the said officials have been duly examined as PWs.2, 4, 6 & 12, accordingly.
43. It is significant to note that, admittedly, the accused No.1 was the Branch-Manager and the accused No.2 was the Cashier being the responsible officers in the said Apex Bank, West of Chord Road Branch, Bengaluru, and they were entrusted with the amount upon which they had a dominian, but the said amount 30 Crl. Appeal No.11/2008 itself has been alleged to have been misappropriated by the said accused No's.1 & 2 together.
44. It has been endeavored to urge by the learned Public Prosecutor that the accused No.1 is a Manager of the said Apex Bank, West of Chord Road Branch, Bengaluru, having the supervisory-work and duty with the whole and sole-responsible for the transactions done by the officials working under him, as the entire-transaction will be within his knowledge as he was the Manager.
45. Per contra, it has been urged by the learned counsel for the accused No.1 as a counter-case of the prosecution as-well-as the urge of the learned Public Prosecutor that the accused No.1 though Manager of the said Apex Bank, West of Chord Road Branch, Bengaluru, he had neither any kind of alleged intention nor he has misappropriated any amount; But, whatever has happened, is behind and back of the accused No.2 who was the Cashier at that time, wherefore, the accused No.2 alone is responsible.
46. In view of the rival-submissions and contentions, now on looking-into the oral-evidence of the PWs.1, 3, 5, 7 to 11, 14 to 17, 19 & 22 coupled-with the dogmatic documentary-evidences marked at Ex.P.2 which is cashier's-cash-scroll, Exs.P.3 to P.25 which are the long-books, Ex.P.4 which is the day-book, Ex.P.5 which is the general-ledger-book, Ex.P.6 which is the SB accounts of banks and societies, Ex.P.7 which is the SB accounts ledger- 31 Crl. Appeal No.11/2008 book of individuals and Ex.P.8 which is the call-deposit ledger- book, the PW.1 has deposed with regard to certain items of misappropriations in detail with respect to which the trial court has discussed in it's judgment. In pursuance with the same, on meticulous-perusal and scrutiny of the documents, it is clear there-from that on 01.07.1991 the accused No.2 being the Cashier, has written the cashier's-cash-scroll, which is checked by the accused No.1, admittedly and made the payment of Rs.1 lakh, even though there was no any instrument from the concerned account- holder in support of the withdrawal-form, Rs.1 lakh was withdrawn from the SB Account No.108 belonging to the Citizen Co-operative Bank. The said entry of Rs.1 lakh was not effected and debited from the Account No.108 in the ledger marked at Ex.P.6. According to the very-version of the PW.1, in-spite of he having verified the challans maintained in the said Apex Bank, West of Chord Branch, Bengaluru, he found neither cheque nor withdrawal-form with regard to the said withdrawal of Rs.1 lakh from the said Account No.108, and therefore, in the lack of the substantial instrument, the payment depicted in the cashier's- cash-scroll tantamounts to be a fake-payment with respect to which entries the accused No.2 has attested.
47. Similarly, on 02.07.1991 the accused No.2 being the Cashier and the accused No.1 being the Manager, the accused No.2 having opened the cash-business with the opening-balance of Rs.1,75,174.64 by effecting the entry in cashier's-cash-scroll 32 Crl. Appeal No.11/2008 marked at Ex.P.2 and the relevant-entry is as per Ex.P.2(g). On the same-day, a withdrawal-form as per Ex.P.10 was presented by one Rajagopal for a sum of Rs.1,500/- against his Account No.4908, which has been rightly debited in ledger. But, the accused No.2/Cashier has effected the entry in Ex.P.2/cashier's cash-scroll as Rs.51,500/-.
48. Similarly, on the same-day, the account-holder of Account No.669 having presented a cheque as per Ex.P.11 for a sum of Rs.30,000/-, the debit-entry regarding the same is effected in Ex.P.7/SB accounts-ledger of individuals. But, in the cashier's- cash-scroll, it is depicted as Rs.1,30,000/-. In connection with the same, the PW.10 having been examined, has deposed that his grand-father has withdrawn a sum of Rs.30,000/- on 02.07.1991 from his Account No.669 by way of issuance of a cheque as per Ex.P.11 and the concocted passbook is as per Ex.P.90 and he has identified both the said Exs.P.11 & P.90 and the relevant-debit- entry in Ex.P.90 is as per Ex.P.90(a). Even, the PW.10 has further deposed that, except the said Rs.30,000/-, his grand-father never withdrawn any amount. The very-evidence of PW.10 has remained without any cross-examination, wherefore, the said contention of the PW.10 stood without any contest. Therefore, it clearly goes to indicate that, on 02.07.1991 though the cheque was only for Rs.30,000/- the entry effected in the cashier's-cash-scroll as per Ex.P.2, Rs.1,30,000/- has been effected as debited; meaning- thereby, Rs.1 lakh has been misappropriated. It is no doubt, in 33 Crl. Appeal No.11/2008 the cross-examination by the learned counsel for the accused, the PW.1 has been endeavored to target as he himself (PW.1) was involved in forging the said entry. But, the said entry being of the year 1991 and the evidence of the PW.1 being of the year 1994, there was no chance of working in the said Apex Bank, West of Chord Road Branch, Bengaluru, by the PW.1 and moreover, it is not the defence of the accused No.1 that the PW.1 was working during the year 1991 also. In respect of this particular aspect, the trial court has rightly dealt with in it's judgment para No.13, wherefore, the said endeavour made by the learned counsel for the accused No.1 to target the PW.1 himself as involved, holds no water and substance. In addition to the same, the accused No.1 being the Manager of the said Apex Bank, West of Chord Road Branch, Bengaluru, is bound to verify all the transactions everyday and then put his endorsement. When that is so, the question of insertion of any arithmetical-number by the PW.1 during his inspection of the said accounts and books of accounts, etc., does- not arise at-all. But, ultimately, it clearly goes to indicate that the insertion of the arithmetical-number is with a common-intention of both the accused No's.1 & 2. Even-otherwise, if the accused No.2 alone had inserted and effected the arithmetical-number in the fashion of inflation of amount, and it could not be detected by the accused No.1, then also the accused No.1 having verified and signed on the said transaction-entries, confirming that the entries 34 Crl. Appeal No.11/2008 affected by the accused No.2 are found correct, certainly results- into an act of the accused No's.1 & 2 collectively.
49. Further, the PW.4 being the Manager of Citizen Co- operative Bank, having his bank-account in the said Apex Bank, bearing SB Account No.108, he has deposed that on 01.07.1991 his bank has not at-all made any transactions and withdrawn any amount, which version has absolutely supported the prosecution's- case.
50. Even, the first-entry at Page No.161 in Ex.P.2/cashier's- cash-scroll as the first-entry on 01.07.1991 has been depicted the day's transaction and closed at Page No.163 disclosing the old- balance as Rs.4,87,351.64 and the previous-day transaction being of 28.06.1991, it's closing-balance was the said Rs.4,87,351.64, which is found to be correct as per the Senior Auditor's inspection conducted on 28.06.1991, wherefore, consequent-upon the same, the opening-balance on 01.07.1991 was Rs.4,87,351..64 and the day's total-transaction on debit-side was Rs.7,22,577/- and on credit-side, a sum of Rs.4,10,400/- and on detecting the same, the closing-balance was Rs.1,75,174.60. Though Rs.1 lakh has been depicted in the debit-column towards the Account No.108, the total-amount of the day comes to the tune of Rs.6,22,577/- on the debit-side which implies that though there was no any kind of instrument for the payment of Rs.1 lakh from the Account No.108, it has been shown towards the debit-side and the closing-balance was made equal with the opening-balance of the day. The said 35 Crl. Appeal No.11/2008 overlapping-entries clearly disclose that on 01.07.1991 the opening-balance and closing-balance were made equal. As per the very-version of the PW.1, the entries effected on the debit-side as- well-as the credit-side though substantiated and supported by instruments, the entry effected as per Ex.P.2(b) is not supported by any instrument which indicates the said Ex.P.2(b) entry is fakely created to depict that on 01.07.1991 Rs.1 lakh has been drawn from the Account No.108. Therefore, it is clear on the face of record itself that the said Rs.1 lakh from the Account No.108 has been misappropriated by the accused No's.1 & 2 together because, the entries effected by the accused No.2/Cashier have been verified and signed by the accused No.1 as correct. Even, the handwritings have been examined through the Handwriting-Expert who has been examined as PW.24 and Exs.A(1) & J(1) are also marked as he has clearly given his opinion that, a person who has written the standard-signatures marked as E1 & S1A to S9A (i.e., Exs.P.100, P.54 to P.58 & P101), himself has written the disputed-signatures marked at A1 to A30 (Ex.P.2) and the signatures at A1 to A-30 are the signatures of the accused No.1 found on cashier's-cash-scroll marked at Ex.P.2. It is no doubt, the PW.24 has admitted in his cross-examination by the learned counsel for the accused that, it is very difficult to compare the initials but easy to compare the full- signature. In the instant-case in hand, the accused No.1 has put his signature in full and therefore, it cannot be disbelieved and discredited the very-opinion of the PW.24 because, even it is not 36 Crl. Appeal No.11/2008 the defence of the accused No.1's-side that the accused No.1 has not at-all put his signature on Ex.P.2/cashier's-cash-scroll. Therefore, it is clear that Ex.P.2(d)/signature is the signature of the accused No.1 having put by him after verifying and checking it's transactions though there was no payment of Rs.1 lakh without any instrument in-fact.
51. Further, the PW.4/Kempegowda being the account- holder of Account No.108, has deposed that though he has not drawn any amount of Rs.1 lakh on that day, a debit has been shown and passed Rs.1 lakh without any instrument to that effect. The PW.13 is an unauthorized-person having written the said account, has deposed to the effect that the entries effected on 01.07.1991 are in his own-handwriting. But, the defence of the accused No.1 is that the said insertion by PW.13 is without his knowledge, but the accused No's.1 & 2 colluding with each-other have signed the entries calculating the said amount of Rs.1 lakh in their register. Therefore, the liability of misappropriation with regard to the said Rs.1 lakh certainly lies-on both the accused No's.1 & 2, wherefore, they cannot escape from the clutches of the same, as the accounts-ledger as per Ex.P.6 and the cashier's-cash- scroll as per Ex.P.2 have been verified and signed by the accused No.1 as the entries as correct, as per Ex.P.2(b). The PW.4/Kempegowda having issued a cheque as per Ex.P.12 for a sum of Rs.75,000/-, though the amount of Rs.75,000/- has been 37 Crl. Appeal No.11/2008 shown as debited in the passbook as per Ex.P.11, in the bank- ledgers Rs.1,75,000/- has been debited.
52. Similarly, the PW.6/Srikantha L. Jattyan having held 8 cheques for a sum of Rs.75,000/- each, as per Exs.P.74 to P.81 as against his Account No.3612, the entry in his passbook as per Ex.P.82 has been correctly effected for Rs.75,000/- each. But, in Ex.P.2 at Page No.168 the relevant-entry marked at Ex.P.2(m), the debit of Rs.1,75,000/- towards one-cheque of Rs.75,000/- has been effected, whereas, in the accounts-ledger-book as per Ex.P.5, only Rs.75,000/- has been debited which clearly goes to disclose that the accused No's.1 & 2 have misappropriated Rs.1 lakh, by inserting the figure 1 behind Rs.75,000/- and withdrawn the said sum of Rs.1,00,000/- and misappropriated for their self-purpose.
53. On 04.07.1991 PW.6 issued the cheques as per Exs.P.83 to 86 for Rs.75,000/- each, whereas, in the accounts-ledger-book as per Ex.P.6 though it is correctly debited, one entry as per Ex.P.2(q) in Ex.P.2 is depicted as Rs.1,75,000/- at Page No.172 which clearly goes to establish that Rs.1 lakh has been drawn by the accused No's.1 & 2 for their self-purpose.
54. Similarly, on 05.07.1991 the account-holder of Account No.1246 having issued a cheque for Rs.500/-, the entry in Ex.P.2 as per Ex.P.2(b) at Page No.175 is effected for Rs.1,50,500/-. The said account-holder having been demised, he could not be given by the prosecution; but the insertion of figure 150 behind 500 in the long-book, general-ledger and day-book clearly disclose that there 38 Crl. Appeal No.11/2008 is a misappropriation of Rs.1,50,000/-. In connection with the same, the unauthorized-person who has been got examined as PW.13 has clearly deposed that he has effected all the said entries at the instance of accused No.2 with the knowledge and consent of the accused No.1.
55. On 06.07.1991 the PW.16/Puttaraja having issued a cheque for Rs.500/- as per Ex.P.14, the same was also effected as per Ex.P.2(x) at Page No.177 of Ex.P.2 as Rs.1,50,500/- and the said excessable-amount of Rs.1,50,000/- has been mentioned in the general-ledger-book, day-book and also long-book.
56. One Smt V. Radhamma having been examined as PW.15 being the wife of the accused No.1, had issued a cheque for Rs.5,200/- as per Ex.P.15 and the said amount has been depicted as per entry marked at Ex.P.2(y) in Page No.178 as Rs.55,200/- which is also mentioned in day-book, long-book and general- ledger-book also. It is no doubt, the learned counsel for the accused No.1 has endeavored to target the PW.1 in the cross- examination that he (PW.1) has inserted the said extraneous figures. If that was to be so, then the accused No's.1 & 2 having certified the said entries of amounts on the said relevant-dates as verified and found correct, certainly goes to indicate that the PW.1 has not played any role of alleged insertion of figures, whereas, the accused No's.1 & 2 together have got effected accordingly, as the closing-balance of each and everyday was including the said inserted-figures, to which the accused No.1 has certified as found 39 Crl. Appeal No.11/2008 correct which connotes that such insertion was made during the regime of the accused No.1 as Manager of the said Apex Bank, West of Chord Road Branch, Bengaluru.
57. On 07.07.1991 one Hanumakka issued a withdrawal- form for a sum of Rs.2,000/- as against her Account No.4309, as per Ex.P.16, on which the signature of the accused No.1 is as per Ex.P.16(a) for having passed by him. But, Ex.P.2 discloses the entry effected at Page No.180 for Rs.2,02,000/- which relevant- entry is also as per Ex.P.2(a3). The Savings Bank individual's accounts-ledger-sheet-book is as per Ex.P.7. The amount at relevant-entry as per Ex.P.7(d) is correctly debited as Rs.2,000/- only, whereas, in the long-book, day-book and general-ledger-book as per Exs.P.3 to P.5, the debit-entry is depicted as Rs.2,02,000/-, wherefore, it clearly goes to indicate the accused No's.1 & 2 have engulped Rs.2,00,000/- colluding with each-other.
58. On 09.07.1991 PW.2/Chikkanna Gowda being a representative of the bank, having Account No.1155 though not issued any instrument, a debit of Rs.50,000/- was effected as against the said Account No.1155 in Page No.83 at the relevant- entry marked as per Ex.P.2(a7).
59. On 10.07.1991 PW.6/Srikantha L. Jattyan being a representative of Anand Co-operative Bank, having Account No.3612, presented the 2 cheques as per Exs.P.17 & P.18 for Rs.75,000/- each and the same have been passed by the accused No.1 and the accused No.2 has effected the entry at Page No.165 in 40 Crl. Appeal No.11/2008 Ex.P.2 as Rs.1,75,000/- against Rs.75,000/-. In Ex.P.6/accounts- ledger-book, only Rs.75,000/- has been debited to the Account No.3612, which entry is at Page No.225, as per Ex.P.6(c), whereas, in the passbook as per Ex.P.82, the debit is shown as Rs.75,000/- only, which clearly indicates that Rs.1 lakh has been engulped.
60. Further, on 16.07.1991 PW.6/Srikantha L. Jattyan having issued 3 cheques as per Exs.P.20 to P.22 for Rs.75,000/- each, one amongst them has been depicted as Rs.2,75,000/- in Ex.P.2(a21), whereas, the accounts-ledger as per Ex.P.6 discloses the debit as Rs.75,000/- only and similarly in the passbook/Ex.P.82 at Page No's.24 & 25, Rs.75,000/- only has been deposited.
61. On 17.07.1991 again the PW.6 issued 2 cheques as per Exs.P.23 & P.24 for a sum of Rs.75,000/- each and amongst one of the said cheques was effected at Page No.198 in Ex.P.2 for Rs.1,75,000/-, whereas, in Ex.P.6/accounts-ledger, the amount debited is shown as only Rs.75,000/-. Even, the PW.6 having been issued 2 other-cheques as per Exs.P.27 & P.28 for Rs.75,000/- each. The amount shown at Page No.202 in Ex.P.2 is Rs.1,75,000/-, whereas, in Ex.P.6/accounts-ledger, it is debited only Rs.75,000/- as per Ex.P.6(h).
62. Further, the PW.6 issued another-cheque for Rs.75,000/, as per Ex.P.33; but in Ex.P.2 at Page No.208, it is depicted as Rs.2,75,000/-, whereas, in Ex.P.6/accounts-ledger, only Rs.75,000/- is debited in Page No.226 as per Ex.P.6(j). 41 Crl. Appeal No.11/2008
63. On 31.07.1991 two items of misappropriation having been found comprising of one for Rs.1 lakh as against genuine- payment of Rs.50,000/- in connection with the Account No.1705 and another for Rs.1 lakh as against the genuine-payment of Rs.75,000/- as against the Account No.3612.
64. On 13.07.1991 PW.9/Thimmegowda issued a cheque for Rs.15,000/- as per Ex.P.19 which was passed by the accused No.1, but the accused No.2 has effected the entry at Page No.192 in Ex.P.2 for Rs.2,15,000/- and debited accordingly, whereas, in Ex.P.7/accounts-ledger-book, only Rs.15,000/- has been debited and in the passbook as per Ex.P.13, the debit is shown for Rs.15,000/- only and excess-payment of Rs.2,00,000/- is depicted in the long-book, day-book and general-ledger-book as per Exs.P.3 to P.5.
65. Similarly, on 20.07.1991 the PW.19/Jagadish issued a withdrawal-slip as per Ex.P.29 for a sum of Rs.75,000/- as against his Account No.5900, but the accused No.2 has mentioned Rs.15,075/- in Ex.P.2 and the same has been marked by the accused No.1 as found correct and in the accounts-ledger-book Rs.15,075/- was debited, whereas, in the long-book, day-book and general-ledger-book, inflated-payments have been depicted.
66. On the same-day the PW.5/G. Gopalakrishna issued a cheque marked at Ex.P.30 for a sum of Rs.424/-, whereas, the accused No.2 has shown at Page No.204 as Rs.35,424/- which was 42 Crl. Appeal No.11/2008 duly passed by the accused No.1, whereas, in Ex.P.3/accounts- ledger-book, only Rs.424/- is debited.
67. On 21.07.1991 the PW.22/Sathyanarayana Prasad issued a withdrawal-form for Rs.600/- as against his Account No.5826 in the name of one Smt R. Swarnalatha, which was passed duly by the accused No.1, whereas, the accused No.2 has mentioned it as Rs.30,600/- at Page No.206 in Ex.P.2 and in Ex.P.7/accounts-ledger-book, only Rs.600/- is debited.
68. On 28.07.1991 the PW.3/M.Y.Doddamani issued a cheque as per Ex.P.34 for Rs.500/- as against his Account No.617 which was duly passed by the accused No.1 and the accused No.2 has mentioned at Page No.214 in Ex.P.2 as Rs.50,500/-, whereas, in Ex.P.3/accounts-ledger-book, Ex.P.69/passbook, the correct- amount of Rs.500/- is mentioned as debited.
69. Further, on 31.07.1991 the PW.12/C. Ramanna Gowda issued a cheque for Rs.70,000/- as against his Account No.1705 which was duly passed by the accused No.1, but the accused No.2 has effected the entry at Page No's.289 & 220 in Ex.P.2 for Rs.1.70,000/-, whereas, at Page No.296 in Ex.P.6/accounts- ledger-book, it is mentioned only as Rs.70,000/-.
70. On 01.08.1991 the PW.7/Sathish issued a cheque as per Ex.P.37 for Rs.4,000/- as against his Account No.1385, which was duly passed by the accused No.1, whereas, the accused No.2 has mentioned at Page No.223 in Ex.P.2 as Rs.1,54,000/-, whereas, in Ex.P.7/accounts-ledger-book, it is mentioned only as Rs.4,000/-. 43 Crl. Appeal No.11/2008
71. On 02.08.1991 the PW.11/G.S. Umesh presented a cheque as per Ex.P.38 for Rs.12,000/- as against his Account No.4653, during which time the accused No.1 being the Manager and the accused No.2 being the Cashier have passed the said cheque, by effecting the entry in Ex.P.2 as Rs.12,000/-, whereas, in Ex.P.7/accounts-ledger-book and Ex.P.92/passbook, it is mentioned only as Rs.12,000/-.
72. On 03.08.1991 the PW.4/Kempegowda though not withdrawn any amount on that day, the amount of Rs.1,75,000/- is shown to have been debited from his Account No.108, but as such there is no instrument to that effect, whereas, even Ex.P.2/cashier's-cash-scroll at Page No.30 discloses as withdrawn Rs.1,75,000/-. Therefore, it is clear that the accused No's.1 & 2 together have misappropriated Rs.1,75,000/- by effecting the entries at Exs.P.3 to P.5 accordingly, but no entry is effected in accounts-ledger-book as per Ex.P.6.
73. On 06.08.1991 the PW.8/H. Ramaiah issued a cheque as per Ex.P.39 for Rs.3,000/- as against his Account No.4673, but the accused No.2 has mentioned at Page No.234 in Ex.P.2 as Rs.1,53,000/-, whereas, in Ex.P.7 it is depicted as Rs.3,000/- only debited as per Ex.P.7(m) and similarly, it is depicted in the passbook as per Ex.P.89. Even, the PW.8 has clearly stated that he has not at-all withdrawn any amount of Rs.1,53,000/-, but having been mentioned in Exs.P.3 to P.5 as the amount of Rs.1,53,000/- has debited, the said aspect having been remained 44 Crl. Appeal No.11/2008 without any cross-examination, it clearly indicates that the accused No.1 has admitted the transaction and thereby they have misappropriated Rs.1,50,000/-.
74. On 10.08.1991 the PW.14/Bapuji presented a cheque for Rs.35,000/- as per Ex.P.48 as against his Account No.4481, whereas, the accused No.2 has mentioned at Page No.224 in Ex.P.2 as Rs.1,35,000/-, whereas, in Ex.P.7/accounts-ledger-book and passbook, it is also mentioned, wherefore, the debit of Rs.1,35,000/- having been shown in Exs.P.3 to P.5 as against the Account No.4481, they have misappropriated Rs.1 lakh.
75. All these particular items of misappropriation have been separately discussed at much-length by the trial court in it's judgment which have been focused herein before supra, in brief, for the purpose of convenience and better-understanding as a readymade-reckoner for discussion.
76. Considering the said various items of the misappropriation of various amounts from the various accounts of the various account-holders, more-particularly, PWs.3, 5, 7 to 11, 14 to 17, 19 & 22, it is clear on the face of record that the amount mentioned in the instrument of the account-holder/customer though mentioned in the passbook and certain bank-ledger-books correctly, especially in Ex.P.2/cashier's-cash-scroll, the inflated amounts have been depicted by the accused No.2 and drawn the said amount contrary to the quantum of amount mentioned in the instrument of the respective account-holders/customers. 45 Crl. Appeal No.11/2008 According to the very-deposition of the PW.1, there is no proper synchronization and tally with the entries effected in Exs.P.2 to P.8 between each-other. In addition to the same, the entire- depositions of the prosecution-witnesses who are stated to be the account-holders in the said Apex Bank, West of Chord Road Branch, Bengaluru, are absolutely and substantially corroborating the very-deposition of the PW.1.
77. On meticulous-consideration of the deposition of PW.1 and other account-holders coupled-with the entries effected by the accused No.2 in Exs.P.1 to P.8 and the verification and endorsement of the accused No.1 by way of putting the signature as entries found correct clearly go to indicate the peculiar modus operandi of misappropriating the excessive-amounts having been drawn by them, by the accused No's.1 & 2 from the accounts of the various account-holders. Even, certain withdrawals of amount are without the base of instrument at-all. The said withdrawals have been passed duly by the accused No.1.
78. It is significant to note that, the accused No1 being the Manager of the said Apex Bank and the accused No.2 being the Cashier of the said Apex Bank, having received the withdrawal- forms and cheques and etc., and duly passed and the accused No.1 having put his signature after verifying in the bank-accounts- ledger-books, it clearly goes to disclose that whatever entries were effected and the excessive-amount drawn by the accused No.2, by effecting the inflated-debits in the various accounts-ledger-books 46 Crl. Appeal No.11/2008 were well within the knowledge and notice of the accused No.1 which ultimately goes to imply that the accused No's.1 & 2 together hand-in-hand colluding each-other have received the said excessive-amount to the tune of Rs.41 lakhs and odd-amount and misappropriated the same for their self-purpose. It is also referred in the trial court judgment Para No.41 regarding the defence endeavored to urge the invocation of the doctrine of alibi in favour of the accused No.1 contending that the accused No.1 was away from the place of work during the time of the alleged incident and therefore, he cannot be held liable and foisted with any act done by the accused No.2. In respect of the same, nothing has been whispered by the accused in reply during recording of his statements U/Sec.313 of Cr.P.C., by the trial court nor the accused No.1 has established the said contention. But, it appears that it is a mere urge taken at the time of canvassing the arguments for the first-time, wherefore, the said urge does-not hold any alimentation because, the accused No.1 has signed the books of accounts by taking the notice and knowledge of the entries made by the accused No.2, as admittedly the accused No.1 has signed the books of accounts when the same was placed before him and therefore, the accused No.1 being the Manager of the said Apex Bank, West of Chord Road Branch, Bengaluru, cannot plead that he has signed without taking notice of the said entries in the books of accounts, whereas, when once he has signed on the said books of accounts in connection with the said alleged entries, then 47 Crl. Appeal No.11/2008 certainly it stands binding-upon him also. In addition to the same, even it clearly goes to imply that the series of transactions and number of instructions which are under dispute resulted-into implying the common-intention of the accused No.1 with the accused No.2 to falsify the entries and grab the said money of the public-bank.
79. In respect of the said plea of alibi, the trial court has referred and placed it's reliance-on a well-settled principle of law, reported in 2002 Supreme Court Cases (Cri) 256, which reads thus:
"Criminal Trial - Circumstantial evidence - False plea of alibi - Murder and rape of minor-girl - Victim did-not return home and next-day her dead-body was found at the outskirts of the village - No material available to fix the place and the likely time at which the rape and murder were committed - Owner of a cinema-hall, where accused was engaged as a casual (not regular) gatekeeper, stating that accused had taken leave on the said two-days of the incident - When this evidence was put to the accused during statement under S. 313 Cr.P.C. in order to afford him an opportunity to explain the incriminating circumstances, accused only stating that fit was wrong - Held, this denial by accused of the assertion made by his employer (cinema-hall - owner) cannot be treated as his plea of alibi and as such the question of the plea being false does-not arise."
80. Even, it is very clear that the accused No.1 has not denied the misappropriation of the funds except the contention that everything was done by the accused No.2. The said urge appears to be emanated only with an ulterior-motive to escape from the clutches of his liability by shifting the same on the shoulders of the accused No.2 alone as he has already demised. Therefore, the accused No.1 being the Manager of the said Apex 48 Crl. Appeal No.11/2008 Bank, West of Chord Road Branch, Bengaluru, is liable to answer to the bank.
81. It is also clear that, in the absence of the instrument, the accused No.1 colluded with the deceased accused No.2 and misappropriated the amounts by fakely showing that the amount has been paid to the account-holders, in their respective accounts. This particular aspect has been substantially well-established by the evidence of PW.2, which has not been rebutted by the accused's-side.
82. To put-into simple-terms, the accused No.1 being in joint-custodian of the cash with the accused No.2 and exclusive- custodian of the books of accounts, the entries found on each and everyday were to verify with the other books of accounts for their confirmation and then sign the last-sheet for having verified and satisfied himself by the accused No.1 and accordingly, he has done and put his initials, wherefore, it clearly goes to establish that the liability of the accused No.1 is also prevailing with respect to the said disputed-entries and the amount misappropriated in connection with the said concerned accounts because, even it is not the defence of the accused No.1 that his signatures of the books of accounts and etc., have been obtained by the accused No.2 fraudulently and even he has not lodged any complaint/report before his higher-authorities as against the accused No.2 in respect of the alleged misuse of his (accused No.2) post and position.
49 Crl. Appeal No.11/2008
83. The accused No.1 being the Manager and the accused No.2 being the Cashier as the employees of the said Apex Bank, West of Chord Road Branch, Bengaluru, during the money- transactions the said bank reposed the absolute trust on them and when the said amount of the bank having been misused and misappropriated by effecting the fake and falsified-entries in the various books of accounts and etc., certainly their act tantamounts to be the breach of trust against the bank because, the trust reposed by the bank in the instant accused No.1 and the deceased accused No.2 has been mis-utilized by them with an intention to cheat the bank tantamounting to criminal-breach of trust, in respect of which the trial court has placed it's reliance-on various judgment as under:
"1. 2004 Supreme Court Cases (Cri) 929.
Penal Code: Criminal-Breach of Trust - Essential Ingredients for proving the offence of restated - where entrustment of property to the accused established and accused failed to produce or account for the properties when asked to do so and no plausible- explanative given in respect of the said failure, Held, accused liable to be convicted under Sec.409 IPC.
(a) Where entrustment of property to accused is established and accused failed to produce or account for the properties and no plausible-explanation given in respect of failure, accused liable to be convicted under Sec.409 of IPC.
(b) The question of intention is not a matter of direct-
proof. Certain broad-tests are envisaged in deciding whether in a particular case, the accused has mens rea for the crime.
2. AIR 1972 Supreme Court 1490 Para 7.
(c) In any manner entrusted with the property" -
Entrustment, meaning of - Agent receiving monies on behalf of principal and fraudulently misappropriating it commits offence punishable under S.409- (X-Ref:- S. 409) - (X-Ref:-
Prevention of Corruption Act (1947), Ss. 5(1)(c) & (2).50 Crl. Appeal No.11/2008
Section 405 IPC does-not provide that the entrustment of property should be by someone of the amount received must be the property of the person on whose behalf it is received. A long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some-person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression 'entrusted' in S. 409 is used in a wide-sense and includes all cases in which property is voluntarily handed-over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed-over. A person authorized to collect moneys on behalf of another is entrusted with the money when the amounts are paid to him.
The accused, a traffic-assistant in the office of Indian Airlines Corporation, demanded on behalf of the corporation certain excess-amounts for trunk-call-charges from passengers for reservation of seats. After the amounts were received, he passed receipts on behalf of the corporation. He, however, subsequently falsified the counterfoil receipts and fraudulently misappropriated the excess-amounts.
3. (2007) 1 Supreme Court Cases (Cri) 399, Paras 12 & 13.
Where the entrustment is admitted by the accused, it is for him to discharge the burden that the entrustment has been carried-out as accepted and the obligation has been discharge."
84. As per the said well-settled principles of laws, the burden of entrustment is on the prosecution, whereas, the burden of giving the explanation or answer regarding the accounts is on the accused-persons and in case if they fail to establish the explanation of accounts duly, then it certainly tantamounts to be a misappropriation. Similarly, in the instant-case in hand also, the accused No.1 has failed to answer and explain/give the said accounts, wherefore, it is a clear case of criminal-breach of trust, punishable U/Sec.409 of IPC.
85. Even, the trial court has focused on non-explanation having offered by the accused No.1 satisfactorily at the time of 51 Crl. Appeal No.11/2008 recording of his statements U/Sec.313 of Cr.P.C., and placed it's reliance-on a well-settled principles of laws, reported as under:
"1. 2002 Supreme Court Cases (Cri) 1637, Para - 6.
Failure of accused to explain any inculpating circumstances established by the prosecution U/Sec.313 of Cr.P.C. would be held as an additional-link in the chain of circumstances against the accused. Equally any false-answer offered by the accused when he was drawn to any inculpating circumstances would render such circumstance as capable of inculpating him or providing a missing-link.
2. 2005 Supreme Court Cases (Cri) 1185, Paras
- 11 & 12.
(a) Statement U/Sec.313 of Cr.P.C. is not evidence. It is only the version of the accused.
(b) Statement U/Sec.313 of Cr.P.C. cannot be used to make-up absence of any suggestion during cross-
examination.
3. (2007) 1 Supreme Court Cases (Cri) 688.
(a) In the examination U/Sec.313 of Cr.P.C. trend of the accused to make only bald denial of all the incriminating circumstances against him and had no explanation to offer.
(b) Section 106 of the Evidence Act is unambiguous and categorical and lays-down when any fact is especially within the knowledge of a person (accused) the burden of proving that fact is upon him. If the accused fails to discharge of the burden, that itself provide an additional-link of missing-link in the chain of circumstances against the accused.
4. 2002 Supreme Court Cases (Cri) 247, Para - 15.
When an attention of the accused is drawn U/Sec.313 of Cr.P.C. to the incriminating circumstances appearing on record and no satisfactory-explanation is offered, it would be providing a missing-link in favour of the prosecution."
86. The basic-defence of the accused No.1 is that, there is no involvement of himself, as all the alleged transactions were made by the accused No.2 alone and therefore, the liability cannot be fixed and foisted on the accused No.1. But, it is significant to note that, at the very outset, it is not the case of one or two-instances but about 26 misappropriation instances are being detected by the 52 Crl. Appeal No.11/2008 PW.1 tantamounting to Rs.41 lakhs-plus-odd-amounts approximately and moreover, admittedly, the accused No.1 has duly put his endorsements by way of signatures on all the books of accounts and other concerned-documentaries as a mark of having confirmed regarding the correctness of the said accounts corresponding with the transactions taken on each and everyday and accordingly found the same as correct. Therefore, the series of instances certainly go to establish regarding the involvement of both the accused No.1 and deceased accused No.2, which certainly discloses the common-intention of both the accused No's.1 & 2 in the said misappropriation of the amounts by falsifying the books of accounts.
87. In respect of this particular aspect, the trial court has rightly placed it's reliance-on a well-settled principle of law, reported in 2000 Supreme Court Cases (Cri) 772, Para - 11, which reads thus:
"(a) Application of Section 34 IPC is explained. In every-
case it is not possible to have direct-evidence of common- intention. It has to be inferred from the facts and circumstances of each-case."
88. On perusal of the said settled principle of law, it is clear that the existence of common-intention can be inferred from the attending circumstances of the case and the conduct of the parties, wherefore, even the participation in the commission of offence need not be established/proved for the sake of common-intention, whereas, it may develop even during the course of an occurrence. 53 Crl. Appeal No.11/2008
89. The accused No.1 and deceased accused No.2 being the Apex Bank Manager as-well-as the Cashier, respectively, are responsible to effect the proper-entries in each and everyday's transactions. But, as per Ex.P.2(b) entry with respect to Rs.1 lakh, though there was no any instrument in support of the payment, it has been effected in the payment's-column stating that the amount has been paid to the account-holder, which clarifies on the face of record itself that there is a false-entry effected by falsification of the accounts, which certainly falls intra-vires the ambitual purview of penal-section 477(A) of IPC.
90. Even, it is well-established by the prosecution regarding the accused No's.1 & 2 having fraudulently misused the cheque No.910544, dated 20.08.1991 for a sum of Rs.1,00,000/- having drawn by Janata Co-operative Bank, as against their SB Account No.1155, has been altered with it's date as 23.08.1991 and same was presented to the Apex Bank, West of Chord Road Branch, Bengaluru, on 25.08.1991 and drawn a sum of Rs.1 lakh. The accused No's.1 & 2 knowing-fully-well that the said instrument/cheque bearing No.910544 was already cancelled as it's amount was already drawn, altered the date and forged and converted it into a forged-document with an intention to cheat the bank and drawn the amount of Rs.1 lakh from the said bank by both the accused-persons of whom the accused No.1 being the Manager, has co-operated with the accused No.2 who was the 54 Crl. Appeal No.11/2008 Cashier, wherefore, it is a clear case of the forgery of documents having forged by the accused No's.1 & 2 together.
91. It is no doubt, the learned counsel for the accused has put-in his lot of pains to urge and make-out the comparative-chart containing the details of cash borrowel from the Head-Office and items of misappropriation and submitted the same and further endeavored to urge that, nothing is placed on record by the prosecution's-side and established regarding the amount to what extent was brought from the Head-Office to the said bank on each and everyday. It is significant to note that, the said urge on the defence-side does-not hold water because, the earlier closing- balance having been continued as the opening-balance on the first- day of the said disputed-period in respect of the misappropriations having been made, wherefore, bringing the amount from the Head- Office does-not play any major-role to falsify the case of the prosecution. Apart from the same, as stated herein before supra, the mischief has been played by both the accused No's.1 & 2 in falsifying the entries and also forging the instrument for the purpose of misappropriation of the amount.
92. It is also one of the urges on the defence-side that, no effort whatsoever was made to seize any amount or properties allegedly possessed or acquired by any of the accused-persons, by the investigation-agency and there is no evidence to show that the accused have amazed the wealth or properties from the alleged misappropriation. But, under the circumstances prevailing herein, 55 Crl. Appeal No.11/2008 the said urge/s do-not prevail with any substantiality as the said aspects do-not do-away the very-core of the prosecution's-case. It is significant to note that, the case being one in respect of the criminal-breach of trust and misappropriation, the question of recovery of the amount is not mandatory because, if such misappropriation-amount is available to recover, then only the investigation-agency is able to recover and moreover, if such misappropriation-amount is neither deposited nor amazed the properties there-from, the question of seizing or recovering the same also does-not arise at-all. But, however, the very mis-entries effected in all the said Exs.P.2 to P.8/books of accounts of the said Apex Bank, West of Chord Road Branch, Bengaluru, demonstrate the clear pictorial-scenario regarding the involvement of accused No's.1 & 2 in misappropriating the amount of Rs.41 lakhs-plus- odd-amounts from various account of the account-holders by falsifying the entries in the documents and forging the instrument.
93. It is also one of the sturdy-contentions of the defence- side that, Exs.P.90 & P.96 to P.98 were not voluntarily executed by the accused No.1, whereas, Ex.P.90 dated 09.11.1991, Ex.P.96 dated 05.12.1991, Ex.P.97/covering-letter and Ex.P.98/declaratory-affidavit were obtained under duress.
94. It is pertinent to note that, if really the said Exs.P.90 & P.96 to P.98 were obtained under coercion and duress, then there was no hurdle to the accused No.1 to lodge the complaint. But, no such complaint appears to have been lodged by the accused No.1, 56 Crl. Appeal No.11/2008 whereas, the accused No.1 being a bank-official, working as Manager and a Graduate, he cannot be expected to be very lightly with regard to any force, coercion and duress acted/imposed-upon him to obtain Exs.P.90 & P.96 to P.98. The accused No.1 being the Manager of financial-institution i.e., Apex Bank, West of Chord Road Branch, Bengaluru; he has his own-responsibilities and also right to lodge the complaint before the concerned-authority, if really there was any kind of coercion and duress acted/imposed- upon him in obtaining the said Exs.P.90 & P.96 to P.98. Therefore, the said urge put-forth by way of defence from the accused No.1's-side holds no water.
95. In overall, it can be understood at the very outset that, according to the defence of the accused No.1, the accused No.2 has committed the misappropriation by effecting the mis-entries, whereas, he (accused No.1) has merely signed in the books of accounts in view of the same having been placed before him and therefore, as there is no any kind of involvement of the accused No.1 in the said commission of the alleged offences, he is not liable to be fixed and foisted for the same.
96. But, on the contrary, the accused No.1 admittedly being the Manager of the said Apex Bank, West of Chord Road Branch, Bengaluru, during the said disputed-period and the deceased accused No.2 being the Cashier during that period, undoubtedly, certain mis-entries have been effected by the accused No.2, which have been confirmed and approved by the accused No.1 by signing 57 Crl. Appeal No.11/2008 thereon with respect to all the transactions on each and everyday taken-place, in all the relevant-books of accounts and etc., and the total-amount of Rs.41 lakhs-plus-odd-amount stood as misappropriated-amount of the various account-holders and the same has been emanated within the notice and knowledge of the accused No.1 as he has signed and approved all the said- transactions and passed the same and put his signature as found correct, which certainly indicates and implies that whatever the entries effected by the accused No.2 during the said period at the time of all the transactions on each and everyday as true and correct, the accused No.1 is equally liable with the accused No.2 with regard to the said transactions. To put-into simple-terms, the amount which has been held to be as misappropriated, is absolutely misappropriated by the accused No's.1 & 2 colluding with each-other with a common-intention and thereby the accused No.1 has committed the criminal-breach of trust and misappropriation of Rs.41 lakhs-plus-odd-amount by falsifying the entries and forging the instrument and etc., and thereby committed the offences punishable U/Secs.409, 471 & 477(A) r/w Section 34 of IPC.
97. Notwithstanding anything urged by the learned counsel for the accused No.1 either by way of his written-arguments or by way of his oral-arguments or by way of any said principles of laws, which are not prevailing with any dogmatic-weightage to override the crux and core of the prosecution's-case, the prosecution has 58 Crl. Appeal No.11/2008 absolutely well-established and proved all the essential-ingredients of the said offences punishable U/Secs.409, 471 & 477(A) of IPC, in respect of which the trial court has discussed at much-length in it's judgment Para No's.8 to 50 in the right-perspective on the sound-principles of laws without there-being any kind of major- discrepancies, infirmities, errors and etc., wherefore, the trial court's judgment does-not deserve for warranting the interference by this court.
98. Therefore, with these observations, this court is inclined to answer the Point No.1 in the 'Affirmative' and Point No.2 in the 'Negative'.
99. Point No.3:- For the reasons discussed at much-length herein before supra, while answering the Point No.1 in the Affirmative and Point No.2 in the Negative, this court is inclined to proceed to pass the following:
O R D E R The application filed by the accused No.1/appellant U/Sec.311 r/w Section 391 of Cr.P.C. dated 23.11.2014 to summon the PWs.1 to 14 & 16 to 26 for further-cross-examination; the vide application filed U/Sec.391 of Cr.P.C. dated 28.12.2016 for recalling the PW.1/Samiulla in CC No.8055/1993 for further- cross-examination; and the vide-application filed U/Sec.320(2) of Cr.P.C. dated 28.12.2016 for considering the same and compounding the offences by passing the appropriate-orders having been taken-up for disposal along-with the main-appeal, are hereby rejected/dismissed.
Consequent-upon the same, the instant-criminal-appeal preferred by the appellant/original-accused No.1 against the 59 Crl. Appeal No.11/2008 respondent/original-complainant U/Sec.374(2) of Cr.P.C., against the impugned-conviction-judgment passed by the VIII ACMM Court, Bengaluru, in CC No.8055/1993, dated 22.12.2007/26.12.2007, is hereby dismissed on merits.
Send the entire LCRs to the trial court, along-with the copy of the instant-judgment immediately, without causing any delay. (Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 30th day of January, 2017) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
60 Crl. Appeal No.11/2008(Judgment pronounced in the open-court. Operative-portion of the same is extracted as under) ORDER The application filed by the accused No.1/appellant U/Sec.311 r/w Section 391 of Cr.P.C. dated 23.11.2014 to summon the PWs.1 to 14 & 16 to 26 for further-cross-
examination; the vide application filed U/Sec.391 of Cr.P.C. dated 28.12.2016 for recalling the PW.1/Samiulla in CC No.8055/1993 for further-cross- examination; and the vide- application filed U/Sec.320(2) of Cr.P.C. dated 28.12.2016 for considering the same and compounding the offences by passing the appropriate-orders having been taken-up for disposal along-with the main-appeal, are hereby rejected/dismissed. Consequent-upon the same, the instant-criminal-appeal preferred by the appellant/original- accused No.1 against the respondent/original-complainant U/Sec.374(2) of Cr.P.C., against the impugned-conviction-judgment passed by the VIII ACMM Court, Bengaluru, in CC No.8055/1993, dated 22.12.2007/26.12.2007, is hereby dismissed on merits. Send the entire LCRs to the trial court, along-with the copy of the instant-judgment immediately, without causing any delay. LI Addl. City Civil & Sessions Judge, Bengaluru City.