Bangalore District Court
Bank Has Already Recovered The Alleged vs Is Not Found Guilty For The on 19 March, 2016
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 19th day of March 2016
Present : Sri. Venkataraman Bhat,
B.Sc., LL.B. (Spl)
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 31350/2009
2. The date of commission
of the offence : 1.6.2007 to 6.3.2008
3. Name of the complainant : State by S.J.Park PS
4. Name of the accused : D.S.Jagadeesh, 54 Yrs.,
S/o Late D.V.Subbu Rao,
R/a. No.3206, Pushpamatha Nilaya,
4th main, 5th cross, PC Layout,
Teekal Main Road, Kolar.
5. The offences complained : U/s.408, 420 IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
8. Date of order : 19.03.2016
Police Sub Inspector, S.J.Park police station placed charge
sheet against accused for the offences punishable u/s.408, 420 of
IPC.
2. CW1 was working as Asst. Manager of Canara Bank, Town
Hall branch, situated at first floor, Stock Exchange Building,
2 CC.NO.31350/2009
S.J.Park Police station limits in between 1.6.2007 to 6.3.2008.
According to the prosecution, accused was working as Officer since
2005 in this branch and he was looking after the affairs of Foreign
Exchange (FOREX). It is alleged that, accused in between 1.6.2007
to 6.3.2008 with an intention to cheat the bank failed to make
entry in the relevant records in respect of foreign money and
transferred the money into his joint account of himself and his wife
and misappropriated a sum of Rs.5,50,853/- and committed
offence of criminal breach of trust.
3. On the basis of first information statement lodged by CW1,
FIR has been registered at Crime No.117/2009 of S.J.Park police
station.
4. During the course of investigation accused was arrested and
produced before the court. Later he was released on bail.
5. After submission of the charge sheet, cognizance of the
offences have been taken. Copy of charge sheet was furnished as
required u/s.207 of Cr.P.C. Charge was framed for the offences
punishable u/s.408, 420 of IPC. Accused pleaded not guilty and
claimed to be tried.
6. CW1 to CW7 witnesses have been cited in the charge sheet.
During the course of trial, PW1 to PW7 were examined and Ex.P.1
to Ex.P.102 got marked.
7. After closure of the prosecution side evidence, statement of
the accused was recorded u/s.313 of Cr.P.C. Accused did not
adduce any defence evidence.
3 CC.NO.31350/2009
8. Heard arguments of Senior APP and advocate for the accused.
9. CW2 was examined as PW1. PW1 was working as Senior
Manager of Canara Bank, Town Hall branch from 21.7.2008 to
30.11.2010. PW1 has spoken to the effect that accused was
entrusted the duty as Officer in Foreign Exchange Department.
According to PW1 during the course of verification of accounts and
reconciliation it came to the knowledge that accused has
misappropriated a sum of Rs.5,50,853/- in the said department.
10. CW3 was examined as PW2. PW2 was working as Attender in
this branch. According to PW2 he heard that accused
misappropriated sum of Rs.5 Lakhs.
11. CW4 was examined as PW3. In fact PW3 was working as
Senior Manager in the Circle Office of Canara Bank, M.G.Road,
Bangalore from 2003 to April 2011. PW3 has spoken regarding the
internal investigation conducted by him and submission of a report
as per Ex.P.2. According to PW3 he noticed that accused has
misappropriated a sum of Rs.5,50,853/-.
12. CW1 was examined as PW4. PW4 was working as Asst.
General Manager of Canara Bank, Town Hall branch at the relevant
point of time. According to PW4 as per the instructions of his
superior officers he lodged first information statement against the
accused as per Ex.P.4. PW4 has spoken to the effect that while
accused was working in Foreign Exchange Department of this
4 CC.NO.31350/2009
branch, he misappropriated the alleged amount by transferring the
same into his account and joint A/c of the accused and his wife.
13. CW5 was examined as PW5. PW5 was working as ASI in
S.J.Park Police station at the relevant point of time. PW5 has
spoken regarding the arrest of the accused and produced him
before investigation officer along with report as per Ex.P.5.
14. CW7 was examined as PW6. PW6 has spoken regarding the
submission of the charge sheet against the accused.
15. CW6 was examined as PW7. PW7 was working as PSI in
S.J.Park police station at the relevant point of time. PW7 has
spoken regarding receipt of complaint, registration of FIR and
recording the statement of the witnesses and investigation
conducted by him.
16. Now the question for consideration is whether on the basis of
evidence of PW1 to PW7, prosecution is able to prove the guilt of
the accused beyond reasonable doubt. Before evaluating the
documentary evidence, I would like to appreciate the oral testimony
of PW1 to PW7. As far as PW1 is concerned, except he has spoken
to the effect that accused has committed misappropriation of sum
of Rs.5,50,853/- nothing has been stated by him. In fact PW1 was
working as Senior Manager of Canara Bank, Townhall branch at
the relevant point of time. Evidence of PW2 is hear say evidence.
Prosecution mainly relied on the evidence of PW3. In fact,
according to PW3 he conducted internal investigation and enquiry
5 CC.NO.31350/2009
against the accused and he found that accused has
misappropriated the said amount. Number of documents got
marked through this witness including investigation report,
supplementary report. PW4 is none other than the first informant
who lodged complaint before the police. PW4 was working as Asst.
General Manager of this branch at the relevant point of time. PW4
does not speak anything how the accused has misappropriated the
said amount and other particulars. Evidence of PW5 can be
believed to the extent that accused was arrested by him. PW6 only
submitted charge sheet against the accused. PW7 registered FIR
and recorded the statement of the witnesses and conducted major
part of the investigation. It can be noticed that, the oral testimony
of PW1 to PW7 is not clear and reliable in order to prove the alleged
charges.
17. Now, I would like to appreciate the documentary evidence
placed on the record. It is settled principle of law that, always
documentary evidence prevails over oral testimony. In this
background, it is necessary to appreciate the documentary
evidence placed before this court. First information statement got
marked as Ex.P.4. As per the averments of the complaint, it is
stated that, this branch after migration to Core Banking Solution
(CBS) during March 2008 it was found that outstanding in bills
purchased FCDB A/c was to the tune of Rs.3,72,948/-. As per
Ex.P.4 the said branch was trying to locate the details of FCDB and
after continuous efforts they could able to trace out the details and
found that accused officer was working in that branch since June
2005 had misappropriated the amount of Rs.3,72,948/-. As per
6 CC.NO.31350/2009
Ex.P.4 accused was entrusted with FOREX Department since
September 2006. It can be noticed that, except oral say of PW4
there is no other documents to support the contention that accused
was exclusively dealing with and entrusted the work in FOREX
Department since September 2006.
18. The following the are the main allegation against the accused.
i) Accused had debited FCDB and transferred an
amount of Rs.1,67,203/- to S.B. A/c 156664, a
joint A/c of himself and his wife from 1.6.2007
to 6.3.2008.
ii) Apart from this, a sum of Rs.60,395/- was
credited by the accused to his OD A/c 4740 at
Welfare Centre, J.C.Road from 10.9.2007 to
13.11.2007.
iii) Accused had debited foreign money account on
various dates to purchase foreign currency in
US $ and credited the amount to his S.B. A/c.
No.156664 and OD A/c No.4740 and 4732.
19. Though it is avered in the complaint, PW4 being first
informant did not speak anything on this aspect. It appears that,
the first information statement is based on investigation report and
supplementary report submitted by PW3. Investigation report is
marked as Ex.P.2. Whereas supplementary investigation report is
marked as Ex.P.3. I have gone through the entire investigation
report and supplementary report. PW3 came to the conclusion
7 CC.NO.31350/2009
that, accused officer has unauthorisedly debited CBD PFCDB and
FMO account by misusing his official position and temporarily
misappropriated the banks funds. It is further reported that,
accused has stealthily removed the foreign currency notes from the
double lock and misused the official position as second key holder
without knowledge of the first key holder and misappropriated the
same. As per Ex.P.3, PW3 has reported that, accused is
responsible for all the unauthorised entries and misappropriated
the amount as mentioned in the report and committed fraud. It is
further reported that, one Sri.K.S.Prasanna the then Senior
Manager has not exercised proper diligent while monitoring foreign
exchange transaction and also movement of foreign currency notes
in the double lock during his tenure at Town Hall branch,
Bangalore. So, one thing is very clear that, act of negligence is
levelled against one Sri.K.S.Prasanna who failed to exercise
property diligence to monitor foreign exchange transaction. It is
further reported that, the branch is subjected to continuous audit
(on monthly basis), regular inspection (conducted from 19.5.2008
to 1.8.2009 for the period covered 1.11.2006 to 30.4.2008), half
yearly audit of the designated branch for foreign transaction
surprise verification of cash by the branch present Senior Manager
etc. It can be noticed that, inspite of this regular inspection, audit
and verification of accounts, the alleged misappropriation was not
reported or found till 2008.
20. Prosecution mainly relied on debit slip A/c CBD PFCDB.
These debit slips and cheques received got marked as Ex.P47 to
Ex.P.49. Another material document is Ex.P.51. Ex.P.51 is the
8 CC.NO.31350/2009
copy of statement of account for the period from 1.1.2007 to
26.6.2009. According to the prosecution this statement discloses
the transfer of the money to the joint account of the accused and
his wife and OD A/c of the accused. It can be noticed that, all the
debit slips, cheques, receipts, copy of accounts of statement are the
computer print outs. In fact, these documents are the attested
copies issued by the said branch. It is not known why investigation
officer did not collect the original debit slips, receipt, cheques and
statement though they are available in the said branch. CW3 who
referred the computer outputs to conduct investigation, during the
course of cross-examination admitted as under :
"I took the assistance of the experts to verify the
computer system. In that regard I have
enclosed all such documents with my report. It
is not true to suggest that I had not conducted
proper enquiry and deposing falsely. I am not
an expert in computer technology. In my
presence itself the experts had generated the
said statement and given the printouts."
21. PW4 being Asst. General Manager has admitted as under :
"£Á£ÀÄ J¯Áè zÁR¯ÉUÀ¼À£ÀÄß ªÉÊAiÀÄQÛPÀªÁV £ÉÆÃr®è.
¥ÉưøÀjUÉ PÉÆlÖ zÁR¯ÉUÀ¼ÀÄ J¯Áè PÀA¥ÀÇålgï ¦æAmïì
JAzÀgÉ ¸Àj. "
22. So, one thing is very clear that, all the documents handed
over to the police are the computer printouts. Likewise all the
documents referred by PW3 to conduct internal investigation are
also computer generated printouts. In other words, these
documents are electronic records. A special provision has been
9 CC.NO.31350/2009
made as to evidence to electronic record w.e.f. 17.10.2000. As per
Sec.65(A) of Indian Evidence Act, 1872 the contents of electronic
record may be proved in accordance with the provisions of
Sec.65(B). Sec.65(B) of the Evidence Act contemplates
admissibility of electronic records. As per this section, all
electronic records / computer outputs are admissible in any
proceedings without further proof or production of original, as
evidence of any contents of original or of any fact stated therein
subject to satisfaction in relation to the information and computer
in question. The conditions are laid down u/s.65(B) of the
Evidence Act to the effect that a certificate must be signed by a
person occupying a responsible official position in relation to
operation of the relevant device or the management of the relevant
activities. In the case on hand, there is no evidence who occupied a
responsible position in relation to the operation of the relevant
device or the management of the relevant activities. According to
PW3 in the presence of computer experts he obtained print outs of
the documents. Absolutely there is no piece of evidence to prove
this fact. One thing is very clear that, a certificate signed by a
person occupying a responsible position in relation to the operation
of the relevant device is mandatory. This position of law is further
fortified by a judgment of Hon'ble High Court of Bombay reported
in November 2015 Crimes 320 (Sharadha Shipping Company
Pvt. Ltd., Vs. Adithi Trading company and another). At para
No.19 it is held as under :
"Such certificate u/s.65(B) of the Evidence
Act must be signed by a person occupying
responsible official position in relation to
10 CC.NO.31350/2009
the operation of the relevant device or the
management of the relevant activities
(whichever is appropriate) so that the
electronic record produced can be taken as
admissible evidence."
23. In the case on hand, admittedly PW3 is not a computer expert
or responsible official position in relation to operation of the
computers of the said branch. Investigation Officer did not collect
any such certificate signed by the responsible official position in
relation to operation of the computers of the said branch. Under
these circumstances, non production of such certificate goes
against the prosecution. In other words, all these debit slips,
statement of account and other related computer print outs are not
admissible in evidence. It can be noticed that, investigation report
of PW3 is also placed on these electronic records. When these
documents are not admissible in evidence, the evidentiary value of
investigation report is very less. When the entire prosecution case
is based on these documents and non compliance of the mandatory
conditions of Sec.65(B) of the Evidence Act, it is needless to say
that these documents are inadmissible in evidence. The result is
prosecution failed to establish the charges against the accused.
24. There is no other independent evidence to prove the charges
of offence of cheating and criminal breach of trust. Consequently
the prosecution failed to prove the guilt of the accused beyond
reasonable doubt.
25. Lastly, it has been brought to the notice of this court that the
complainant bank has already recovered the alleged
11 CC.NO.31350/2009
misappropriated amount from the accused. It is not in dispute
that, the complainant bank has already recovered the alleged
misappropriated amount. Now the question for consideration is
whether recovery of the alleged misappropriation amount leads to
plead guilty or admission of the commission of offence. At this
stage, it is more relevant to refer a decision of Hon'ble High Court
of Madhya Pradesh in State Vs. Ram Bharose (1950 MPLJ
(notes) 161 held as under :
"Deposit of amount alleged to have been
defalcated cannot constitute admission of
guilt."
26. Under these circumstances, it cannot be held that, merely on
the ground of recovery of the said amount from the accused the
guilt has been proved. Taking into consideration the documentary
evidence and oral testimonies of PW1 to PW7, no ground is made
out to hold that prosecution proved the guilt of the accused beyond
reasonable doubt. Necessary ingredients of offence of cheating and
offence of criminal breach of trust are not established by the
prosecution. Ultimately accused is entitled to be acquitted for want
of substantive evidence. In the result, I proceed to pass the
following :
ORDER
Accused is not found guilty for the offences punishable u/s.408, 420 IPC.
12 CC.NO.31350/2009Accused is acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.408, 420 IPC.
Bail bond of accused stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 19th Day of March 2016) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : K.M.Krishna PW.2 : Ramachandraswamy PW.3 : U.krishna Vydya PW.4 : Manjunatha Govinda Bhat PW.5 : Jayanna PW.6 : Hemalatha R. PW.7 : B.Shankarachar
List of exhibits marked for prosecution:-
Ex.P.1 : Spot Mahazar Ex.P.2 : Investigation report Ex.P.3 : Supplementary investigation report Ex.P.4 : Complaint Ex.P.5 : Report of PW5 Ex.P.6 : Original letter of Canara Bank Ex.P.7 to
Ex.P.49 : Receipts of transactions Ex.P.50 : Attested copy of salary particulars Ex.P.51 : Copy of ledger extract of account of accused Ex.P.52 : Copy of ledger extract of co-accused Ex.P.53 : Copy of ledger extract of accused's wife Ex.P.54 : Copy of letter dated 7.7.2009 Ex.P.55 : Transfer order of accused 13 CC.NO.31350/2009 Ex.P.56 : Copy of DE proceedings Ex.P.57 : Copy of letter dated 9.6.2009 Ex.P.58 : Copy of letter dated 7.7.2009 Ex.P.59 to Ex.P.102 : Copies of foreign currency notes holdings register List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:-
Nil.
(Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.14 CC.NO.31350/2009
19.03.2016 State by Sr. APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused is not found guilty for the offences punishable u/s.408, 420 IPC.
Accused is acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.408, 420 IPC.
Bail bond of accused stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 19th Day of March 2016) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.
15 CC.NO.31350/2009