Jharkhand High Court
Arjun Prasad vs The State Of Bihar on 25 January, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr. Appeal (SJ) No.375 of 1988 (P)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 375 of 1988 (P)
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[Against the Judgment of Conviction and Order of Sentence dated 30.08.1988 passed by the Special Judge, C.B.I. (South Bihar), Patna in Special Case No.3 of 80]
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Arjun Prasad, Son of Late Lok Nath Sahay, resident of village - Tandawa, Police Station -Tandawa, District -Hazaribagh, at present residing at Mohalla -Ramnagar Police Station, District -Hazaribagh.
... Appellant
Versus
The State of Bihar
... Respondent
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For the Appellant : Mr. Prashant Pallav, Advocate
For the A.C.B. : Mr. Rohit Sinha, Advocate
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PRESENT
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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
C.A.V. ON 26.10.2021 PRONOUNCED ON 25.01.2022
Anil Kumar Choudhary, J. Heard the parties through video
conferencing.
2. This appeal has been preferred against the Judgment of Conviction and Order of Sentence dated 30.08.1988 passed by the Special Judge, C.B.I. (South Bihar), Patna in Special Case No.3 of 80 whereby and where under, the learned court below has held appellant-convict guilty for the offences punishable under Section 120B/420/471 read with Section 468/477A of the Indian Penal Code and under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, 1947. The appellant-convict has been sentenced to undergo Rigorous Imprisonment for one year for each of the offences punishable under Section 120B/420/471 read with Section 2 Cr. Appeal (SJ) No.375 of 1988 (P) 468/477A of the Indian Penal Code and under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, 1947. All the sentences were directed to run concurrently.
3. The case of the prosecution in brief is that the appellant-convict was Manager of S.I.B (Small-Scale Industries and Business) Division, State Bank of India during the period from October, 1978 to March, 1979 at Daltonganj, the co-accused Biswas brothers were the partners of a firm in the name and style of M/s. M.L. Biswas & Co. which was having its account with the said bank. The said co-accused persons were also having their individual accounts in the said bank. It is alleged that the appellant-convict entered into a criminal conspiracy with the co-accused persons and in pursuance of the said criminal conspiracy the co-accused two Biswas brothers in their individual capacity as well as partners of the firm produced payment advises and inter alia the appellant-convict, knowing the said payment advises to be forged, dishonestly with intent to facilitate further accommodation to the co-accused persons; marked off the liability of the said firm of the said co-accused persons on the basis of the said payment advises; to help the purchase of the cheques drawn by the said firm and its partners within the functional limits and in this process inter alia the appellant- convict negotiated and also purchased 109 cheques issued under the signatures of R.K.Biswas in the individual capacity as well as in the capacity of the messenger of the partnership firm to enable the accused firm in contravention of the stipulation that no cheques payable to the tenderers or its sister units would be purchased and the said cheques were forwarded to State Bank of India, Calcutta Main Branch for collection from the drawee bank. But the said purchased cheques were dishonoured causing a loss of ₹ 57.24 lakhs to the State Bank of India. After completion of investigation charge sheet was submitted inter alia against the appellant-convict by the Central Bureau of Investigation. Charges for the offences punishable under Section 120B/420/471 read with Section 468/477A of the Indian Penal Code and under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, 1947 were framed against the appellant-convict. The appellant convict pleaded not guilty to the charges and claimed to be tried.
4. In support of its case the prosecution altogether examined 24 3 Cr. Appeal (SJ) No.375 of 1988 (P) witnesses. The accused persons of the case also altogether examined 3 witnesses in their defence.
5. Out of the witnesses examined by the prosecution P.W.2 Manak Chandra Jain has stated that he was officiating as Head Clerk in the State Bank of India, Daltonganj Branch in the year 1978-79 and at that time the appellant-convict was the S.I.B Manager. The P.W.2 proved the Telegram Report Register of the State Bank of India, Daltonganj branch from 18. 12. 78 to 17.03. 79 which was marked exhibit-2. The said Register proved by the P.W.2 shows that several Demand Drafts purchased by the said co-accused firm where not being paid by the drawee bank on the first presentation and sometimes the Demand Drafts had to be presented twice, thrice to the drawee bank and therefore intimation by the telegram were sent to the State Bank of India, Daltonganj Branch by the Main Branch to this effect. The telegram no. 151 sent on 03.03.79; as would be evident from page 69 of the exhibit-2, also shows that State Bank of India, Daltonganj Branch was requested to take the matter very seriously with the documents as Demand Drafts mentioned therein were returned unpaid at the 2nd presentation.
6. PW3 Jamuna Prasad Sinha was the Head Clerk in the dispatch section of the State Bank of India, Daltonganj Branch. He proved the Registered Letter Dispatch Registers relating to the period 31.08.1978 to 04.04.1979 of the State Bank of India, Daltonganj Branch which have been marked exhibits 3 and 3/1 respectively. The PW3 also proved The Demand Liability Register of the State Bank of India, Daltonganj Branch containing inter alia the signature of the appellant-convict, which has been marked exhibit-4.
7. PW 4- Umesh Kumar Srivastava was posted as Clerk in the State Bank of India, Daltonganj Branch during the year 1978-79. He has inter alia stated that the appellant-convict was the officer of the said bank during the said period. He proved another Demand Liability Register which have been marked Exhibit 4 & 4/1. The PW4 further deposed that the appellant-convict being the SIB manager used to receive the payment advises and he used to send the payment advises and also used to put his initial in the register by way of confirmation and authentication. The PW 4 also proved the Demand Draft purchase register which has been marked Exhibit 5. He further stated that after entries in the demand liability register, entries about the demand 4 Cr. Appeal (SJ) No.375 of 1988 (P) drafts used to be made in this register and then the Demand Drafts were sent for dispatch. He also stated that the exhibit-4 and 4/1 inter alia bear the signature of the appellant-convict.
8. PW5 Mani Lal Gupta has stated that on 11.01.1981 in his presence the house of the co-accused R.K.Biswas was searched by officers of Central Bureau of Investigation. He also proved the search list which have been marked exhibit-6 and 6/1 respectively. He further deposed that during the search inter alia 22 sheets of blank payment advice were seized. PW5 put his signature on all the seized articles which have been marked material exhibits- I to VI.
9. PW6 Anant Viswanath Makoda has stated that he made the vigilance enquiry in connection with this case and submitted his report on 17.01.1979 which has been marked exhibit-7 and the enclosures whereof have been marked as exhibit-7/1. The enclosures were marked exhibit after the recall of the PW 6.
10. PW7 Maya Shankar Verma was posted as the Regional Manager of the State Bank of India at the relevant time. He submitted the complaint which has been marked Exhibit 8; on the basis of which the First Information Report of this case has been registered and which has been marked exhibit-8/1. The PW 7 further deposed that after going through the concerned files and the relevant documents he found that the cheques purchased in connection with this case by inter alia the appellant-convict were beyond the limits and the advises on the basis of which payment were made were not genuine. The PW 7 also proved the seizure memos which have been marked exhibit-9 and 9/1. In his cross- examination the PW 7 had stated that the limit for sanction is fixed by the Regional Manager and the Branch Manager is supposed to act within the direction given by the Regional Manager. On being confronted he proved the 2 letters sent by him to the Branch Manager State Bank of India, Daltonganj Branch which were marked exhibit-A and A/1 respectively. By these letters the Branch Manager State Bank of India, Daltonganj Branch was directed to send the recommendation for continuance or otherwise of the Demand Drafts purchase limits of M/s. M.L.Biswas & Co. and R.K. Biswas.
11. PW8- Tapas Kumar Chatterjee who was the temporary godown keeper and also clerk in State Bank of India, Daltonganj Branch has stated that he 5 Cr. Appeal (SJ) No.375 of 1988 (P) used to receive cheques and payment advises inter alia through the appellant-convict who was the SIB Manager and used to make the entry thereof in the remittance schedule. The PW8 further deposed that 109 cheques- which have been marked exhibit-10 to 10/108 were received by him from the appellant-convict SIB Manager and the Branch Manager and the PW8 made entries thereof in exhibit-4. PW 8 further deposed that he received 44 payment advises which have been marked exhibit-11 to 11/43 from the appellant-convict SIB Manager and the Branch Manager and on the basis of these payment advises, the PW 8 made necessary entries in the exhibit-4. He further stated that the appellant-convict put his initials against the entries except the entry of one date against which the entry has been made by the PW 12. PW 8 also proved the endorsement on the back side of the payment advice dated 11.11.1979 which have been marked exhibit-12. In his cross examination the PW 8 has stated that the cheques which have been marked exhibit-10 to 10/6 bear the initials of P.W.12.
12. P.W.9 Biswanath Mitra was posted as an officer Grade-II in the Main Branch of the State Bank of India at Calcutta from 1976-78 and from November, 1978 to 1979 he was at Howrah Branch; to where he was transferred. He has stated that Mr Bagchi has written to the branch that the payment advice may be handed over to the representative of M.L. Biswas & Co.
13. P.W.10 Debbrata Mitra was a forest contractor in the year 1978-79 at Daltonganj. He had a Current Account in State Bank of India, Daltonganj Branch. He identified the cheques which have been marked exhibit- 10/47 to 10/49 & 10/90 to 10/93 which were issued in his name by the co-accused R.K. Biswas and deposed that the amount of these cheques after purchase were deposited in his account and on the same day, after withdrawing the money he handed over the same to Bisawas & Co and he got commission for the same.
14. PW 11 Bhaskar Chatterjee was posted as Deputy Manager, S.D.A section of State Bank of India, Main Branch, Calcutta. He proved the letters sent by the Main Branch to the State Bank of India, Daltonganj Branch which have been marked exhibit-16 to 16/14. He has also proved the Demand Drafts receipt realization register for the year 1978-79 which has been marked exhibit-17. The Demand Drafts return book on being proved by the 6 Cr. Appeal (SJ) No.375 of 1988 (P) PW11 has been marked exhibit-18, in which, in case the demand drafts were returned and were sent back to the branches, entries used to be made.
15. P.W.12 P.K.H. Ayyar assumed the charge of Branch Manager State Bank of India, Daltonganj Branch on 02.04.1979. He has inter alia deposed that the appellant-convict being the Manager of the SIB section was supposed to see that the instrument tendered for purchase represent genuine transaction and the appellant-convict was not to purchase self cheques or cheques drawn on sister or allied concerns. He has proved to the statement of banks from which 26.09.1978 to March 1979 which has been marked Exhibit 19. Exhibit-20 which is a letter dated 20.03.1979 proved by the P.W.12 shows that the PW 12 in capacity of the Branch Manager of the State Bank of India, Daltonganj Branch wrote to the Main Branch to discontinue with the said practice of payment advice. Exhibit-20/1 is a letter dated 12.07.1978 also proved by the P.W.12 whereby the co-accused T.K.Bagchi requested the Main Branch at Calcutta to send the payment advice of the co-accused firm through their representative A. Mustafi. He further deposed that 8 to 10 days' time elapsed in receiving the payment advice from the Calcutta Branch. In his cross-examination on being confronted he proved the signatures of the appellant-convict and the co-accused T.K.Bagchi on different letters which were marked exhibit- B, B/7 to B/14. He clarified that since he was not holding the charge of permanent Branch Manager, so he did not like to disturb the existing system of purchasing cheques. The demand draft facility was stopped on 19th March and the P.W.12 intimated the appellant-convict accordingly. He further proved the various registers and documents on confrontation by the defence.
16. P.W.13 Ranesh Chandra Rai has proved the certified copy of the Ledger of the account of M/s. M.L. Biswas & Co. and R.K. Biswas maintained by the United Bank of India, CIT Road Branch, Calcutta which have been marked exhibit-19 and 19/1.
17. P.W.14- Alokendra Bau has proved the certified copy of the Ledger of the bank account of the co-accused R.K. Biswas and M/s. M.L. Biswas & Co. maintained by the erstwhile Mercantile Bank, Gouria Hat, Calcutta Branch which bank has been renamed as Hong Kong and Shanghai Banking Corporation, which have been marked exhibit-22 and 22/1.
18. P.W.15 H.D. Upadhyay has proved the certified copy of Books of 7 Cr. Appeal (SJ) No.375 of 1988 (P) Instruction which has been marked exhibit-23 and a chart of disputed demand drafts purchased, which was prepared by the PW 15 and which has been marked exhibit-24. He further deposed that the payment advise forms of the bank are the property of the bank and kept for internal use of the bank and the same cannot be possessed by a private party or a customer.
19. P.W.16- Har Narain Prasad Agrawal has stated that he received cheques being exhibit-10/105 to 10/108 from the M.L.Biswas & Co and the amount of cheque was deposited in his account with State Bank of India, Daltonganj Branch. He further deposed that he returned the amount to M/s. M.L. Biswas & Co. In his cross-examination the P.W.16 has stated that out of the exhibit-10 series money withdrawn by demand draft purchase, some amount was utilised by him in his own business and the rest of the amount was given by him to Biswas & Co.
20. P.W.17 Amar Singh is a Government Examiner of Questioned Documents. He has proved the report regarding the handwriting of Mr B.N.Mitra, which has been marked exhibit-26.
21. P.W.18 B.N.Mukherjee has deposed that R.K. Biswas issued 25 cheques out of the Exhibit 10 series in his name as well as in the name of his firm Shakti Ara Mills. He returned the amount deposited in the account of the said firm to R.K. Biswas through cheque.
22. P.W.19 Bijoy Raghavan worked in State Bank of India, Daltonganj Branch as Officer on Special Duty from April, 1979 to July, 1982. He proved the specimen signatures of the officers of the bank which are marked exhibit- 29 to 29/24. He also proved the letters of the bank which were marked exhibit-20/5 and 20/6. He next deposed that cheques were presented in the branch by the M.L.Biswas & Co. for purchase. He also proved the signatures of Mr T.K. Bagchi and the appellant-convict on the telegram register which are marked exhibit-2/1, 2/2 and 2/3 and from the said telegrams it is evident that the Demand Drafts, which were purchased by the bank were being returned unpaid at the Calcutta Main Branch. The P.W.19 then deposed that it was inter alia the duty of the appellant-convict to compare the signatures on the payment advises with the specimen signatures maintained in the bank but the payment advises being the exhibit-11 series do not bear the signature or initials of the appellant-convict in token of 8 Cr. Appeal (SJ) No.375 of 1988 (P) verification of the specimen signature. He identified the signature of the appellant-convict on the payment advises. He further deposed that it takes at least 10 to 15 days for the payment advice to come from the drawee bank being the Main Branch to the State Bank of India, Daltonganj Branch. But in this case the payment advises have been shown to have been received at an interval of 3 to 4 days only. The P.W.19 has also deposed that inter alia the appellant-convict did not take any action with regard to purchase of Demand Drafts for Biswas & Co. et cetera, despite the fact that telegrams regarding non-payment of the Demand Drafts were regularly sent by the Main Branch to the negotiating branch but still the parties being Biswas & Co. et cetera were allowed to post the said cheques in their own name and in the names of their sister concerns and cheques were even purchased by inter alia the appellant-convict beyond the Demand Drafts limits by not following the instructions of State Bank of India and by not sending the information to the controlling authority; sanction were given to the co-accused parties being M/s. M.L. Biswas & Co. by the appellant-convict on plain papers and the application or appraisal forms were not taken inter alia by the appellant- convict in all cases. The P.W.19 next deposed that inter alia the appellant- convict made the marking in the liability register only with the purpose of making the facility made available to the parties being M/s. Biswas & Co. The P.W.19 was examined further in chief on recall and he stated that out of the 109 cheques, except 12 cheques all other cheques were authorised to be purchased by the appellant-convict.
23. P.W.20 Krishna Kumar Verma proved the extracts of the letters of various firms involved in the fraudulent transactions with the State Bank of India, Daltonganj Branch for which this case has been registered which were marked exhibit-19/2 to 19/15. In his cross examination he denied the suggestion of the defence that no monetary loss was caused to the bank.
24. P.W.21 S.R. Sarkar worked as Divisional Manager in State Bank of India, Daltonganj Branch from March, 1972 to September, 1979. He deposed that as he was the in-charge of inter alia the appellant-convict on a particular day hence the payment advice being exhibit-11/16 out of the altogether 44 payment advises involved in this case, was sent to him but he could not check that advice because he was overburdened on that day and the parties 9 Cr. Appeal (SJ) No.375 of 1988 (P) were in hurry.
25. P.W.23 Gulsan Kumar and P.W.24- G.B. Rao are respectively the Inspector and Sub-Inspector of the Central Bureau of Investigation. They were the members of the team which conducted the search in the house and office of R.K. Biswas and they are witnesses to the recovery of blank payment advice forms from the Iron Chest of Mr R.K. Biswas. Both of them have stated that the blank payment advice forms of the bank were recovered from the iron safe kept in the house of Mr R.K. Biswas in the presence of D.W.1 being the representative of Mr R.K. Biswas and the DW1 also signed in the receipt of the seizure memo. It is pertinent to mention here that there is absolutely no challenge to their testimony to the effect that the D.W.1 signed the receipt of the seizure memo without demur and wherein the seizure of the blank payment advice forms of the bank from the said house of Mr R.K. Biswas was categorically mentioned.
26. P.W.1-Manoj Kumar Ambastha has proved the sanction order for prosecution of the public servant accused persons of this case, which has been marked exhibit-1.
27. After closure of the evidence of the prosecution, inter alia the statement of the appellant-convict was recorded under Section 313 Cr.P.C. regarding the circumstances appearing in evidence against him. The appellant-convict denied all the questions relating to the circumstances appearing in evidence against him and stated that he is innocent.
28. Out of the witnesses examined by the defence, DW1- Sushanth Kumar Kar is an employee of M.L. Biswas & Company. He stated that the search of the house of Mr Biswas was conducted in his presence but the material exhibit-V series was not recovered from the said house nor 22 sheets of blank payment advice of the State Bank of India was recovered from there. In his cross-examination he had stated that he was suffering from paralytic attack and the accused persons were maintaining him. DW 2- Nareswar Prasad is also an employee of M.L. Biswas and company. He has stated that he is looking after the Money Suit Number 39/79 instituted by the bank against M.L. Biswas at Daltonganj. In his cross-examination he had stated that there was an understanding between the bank and M.L. Biswas and company, R.K. Biswas and B.N. Biswas according to which the accused 10 Cr. Appeal (SJ) No.375 of 1988 (P) persons paid ₹ to 14,75,000/- out of the ₹ 59,24,000/- involved in this case. The accused persons have paid ₹ 35 lakhs to the bank in the year 1985. The responsibility of payment of ₹ 59,24,000 has been taken by R.K. Biswas and B.N. Biswas on behalf of all the defendants of that suit. D.W.3 -Shib Sagar Tiwari was working as supervisor in M.L. Biswas and company. He has stated that R.K. Biswas was residing at Daltonganj 3-4 days in a month.
29. The learned trial court after considering the evidence in the record observed that the evidence put forth by the prosecution through the witnesses examined by it as well as from the documents marked as exhibits as also the material exhibits established that inter alia the appellant-convict entered into a criminal conspiracy with the co-accused persons in their individual capacity as well as partners of their firms and they produced forged payment advises which inter alia the appellant-convict knowing to be forged marked off the liability of the firms on the basis of these forged payment advises in order to help the purchase of cheques drawn by the said firm and its partners within the sanctioned limits and in this process inter alia the appellant-convict negotiated and also purchased 109 cheques issued under the signature of R.K.Biswas in his individual capacity as well as in the capacity of managing partner of the firm payable to the accused firms and held that the evidence in the record is sufficient to establish the charges for the offences punishable under 120 B, 420, 471, R/W section 468 of the Indian Penal Code besides it also held inter alia the appellant-convict guilty for the offence punishable under section 477A of the Indian Penal Code as also under Section 5 (2) r/w 5 (1) (d) of the Prevention of Corruption Act, 1947 and convicted and sentenced the accused-appellant as already indicated above.
30. Mr. Prashant Pallav, the learned counsel for the appellant- convict submits that the learned court below failed to appreciate the evidence in the record in its proper perspective and could not consider the fact that the prosecution has miserably failed to establish the ingredients of each of the offences for which the appellant-convict has been held guilty. It is then submitted by Mr. Prashant Pallav that the learned trial court failed to appreciate the fact that there is no evidence whatsoever in the record to show that the appellant-convict received any pecuniary advantage out of the 11 Cr. Appeal (SJ) No.375 of 1988 (P) transactions in question hence erroneously held the appellant-convict guilty of the offence of criminal conspiracy punishable under section 120 B of the Indian Penal Code. Mr Prashant next submits that the dispute between the parties is basically a civil dispute and substantial amount of the wrongful loss amount of the bank has been repaid and the dispute arose because of the then branch manager being the P.W.12 stopping the Demand Draft facilities of the co-accused person- account holders of the bank. It is further submitted by Mr Prashant Pallav that the evidence in the record is insufficient to establish the charges for the offence punishable under section 477A of the Indian Penal Code as there is no evidence in the record to suggest that the appellant-convict indulged in falsification of any accounts as no such accounts alleged to have been falsified has been brought into evidence in this case. It is also submitted by the learned counsel for the appellant-convict that the learned trial court failed to consider the fact that the appellant-convict is not named in the First Information Report and could not properly consider the defence put forth by the accused persons in the case. It is then submitted by the learned counsel for the appellant-convict that the learned court below failed to consider that the prosecution withheld material documents from the court like the peon book which is fatal for the case of the prosecution. It is lastly submitted by the learned counsel for the appellant-convict that the impugned judgment of conviction and order of sentence be set aside and the appellant-convict be acquitted of the charges.
31. Mr. Rohit Sinha the Learned Counsel for the Central Bureau of Investigation on the other hand defended the impugned judgment of conviction and order of sentence and submitted that there is absolutely no discrepancy in the evidence put forth by the prosecution and nothing has been elicited in the cross-examination of any of the 24 witnesses examined by the prosecution in this case to disbelieve their testimony in any manner. It is next submitted that the testimony of the witnesses examined by the prosecution in this case are unimpeachable and trustworthy. The oral testimony of the witnesses examined by the prosecution is supported by the documentary evidence which has been marked exhibits as also the material exhibits. It is then submitted that there is no dispute that the appellant convict was working as the SIB Manager at the relevant point of time nor 12 Cr. Appeal (SJ) No.375 of 1988 (P) there do any challenge to the evidence put forth by the prosecution that inter alia the appellant-convict was instrumental in purchase of cheques which were subsequently dishonoured causing wrongful loss to the bank. It is then submitted that the recovery of the blank payment advises of the bank from the house of the co-accused R.K. Biswas speaks volumes about the criminal conspiracy and the involvement of the appellant-convict therein as there is evidence in the record that such payment advises of the bank are not to be kept at any place other than the bank. So it is crystal clear from the evidence put forth that the said blank forms of payment advice of the bank was utilized for forging fake payment advises, upon which inter alia the appellant-convict acted upon causing wrongful loss to the bank. It is next submitted by Mr. Sinha that the First Information Report is not an encyclopedia of prosecution case; so the fact that the name of the appellant- convict was not appearing in the First Information Report is of no consequence at all as after investigation the Central Bureau of Investigation collected ample material which has been put forth by way of evidence in the record to show the involvement of the appellant-convict in this criminal conspiracy by which the offences involved in this case were committed. It is also submitted by Mr. Sinha that the criminal offence is complete when the ingredients of the offence are committed by the appellant -convict in criminal conspiracy with the co-accused persons and the subsequent payment of the wrongful loss amount of the bank by the co-accused persons will certainly not obliterate the offence committed by the appellant convict. It is lastly submitted by Mr. Sinha that the conviction and sentence of the appellant- convict is proper and the same ought not to be set aside and this appeal, being without any merit be dismissed.
32. Having heard the rival submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that so far as the conviction of the appellant-convict for the offence punishable under section 477 A of the Indian Penal Code is concerned; it is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of S. Harnam Singh v. State (Delhi Admn.), (1976) 2 SCC 819 that in order to bring home an offence under section 477 A of the Indian Penal Code, the prosecution has to establish (1) that at the relevant time, the accused was 13 Cr. Appeal (SJ) No.375 of 1988 (P) a clerk, officer or servant; and (2) that acting in that capacity he destroyed, altered, mutilated or falsified any book, paper, writing, valuable security or account which belonged to or is in the possession of his employer or has been received by him for and on behalf of his employer etc.; (3) that he did so wilfully and with intent to defraud. Further in the said judgment it has been enunciated that "Wilfully" as used in Section 477-A of the Indian Penal Code means "intentionally" or "deliberately". In that case it was also observed in paragraph- 18 by the Supreme Court as under:
"Xxxxxxx from the mere fact that these entries were made "wilfully", it does not necessarily follow that he did so "with intent to defraud" within the meaning of Section 477-A of the Penal Code. The Code does not contain any precise and specific definition of the words "intent to defraud". However, it has been settled by a catena of authorities that "intent to defraud" contains two elements viz. deceit and injury. A person is said to deceive another when by practising "suggestio falsi" or "suppressio veri" or both he intentionally induces another to believe a thing to be true, which he knows to be false or does not believe to be true. "Injury" has been defined in Section 44 of the Code as denoting "any harm whatever illegally caused to any person, in body, mind, reputation or property".
Now coming to the facts of this case, after carefully going through the evidence in the record this court finds that there is absolutely no evidence in the record to suggest that the appellant-convict destroyed, altered, mutilated or falsified any book, paper, writing, valuable security or account. Thus in the absence of any evidence in record regarding this vital ingredient of the offence punishable under section 477 A of the Indian Penal Code; this court is of the considered view that the evidence in the record is insufficient to establish the charge for the offence punishable under section 477 A of the Indian Penal Code. Accordingly this Court set aside the conviction of the appellant-convict for the offence punishable under section 477 A of the Indian Penal Code as made by the learned trial court in the impugned judgment and acquit him of the said offence.
33. So far as the conviction of the appellant-convict in respect of the other offences is concerned; it is a settled principle of law that it is extremely difficult to adduce direct evidence to prove conspiracy and existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused and in cases, indulgence in the 14 Cr. Appeal (SJ) No.375 of 1988 (P) illegal act or legal act by illegal means may be inferred from the knowledge itself as has been held by the Hon'ble Supreme Court of India in the case of Rajiv Kumar v. State of U.P. and another (2017) 8 SCC 791, paragraph 45 of which reads as under:
"45. The essential ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself."
The evidence which the prosecution has put forth through the 24 witnesses examined by it; are trustworthy and reliable. Nothing has been elicited in the cross-examination of any of the witnesses to discard or demolish any part of their testimony or their testimony in total. The evidence put forth by the prosecution as already discussed above is established beyond reasonable doubt about inter alia the appellant-convict purchasing the cheques of the co- accused persons in violation of the stipulation of the bank for not doing so and also on the basis of forged payment advice marked off the liability of the co-accused persons with the bank hence it is not difficult to fathom that he did so in criminal conspiracy with the co-accused persons. True it is that the D.W.1 has been examined by the defence to falsify the claim of the prosecution that the blank payment advises were recovered from the house of the co-accused R.K. Biswas. But this testimony of the D.W.1 is insufficient to dislodge the evidence put forth by the prosecution in this respect principally for 2 reasons. Firstly admittedly the D.W.1 was dependent upon the alms given to him by the co-accused persons for his survival at the time of his deposing in court and thus was prone to depose falsehood in order to save his benefactor and Secondly because such recovery has been confirmed by independent witnesses like P.W.5-an officer employed by the government of India in the Department of posts who is signatory to the seizure memo and has deposed in court supporting the seizure besides P.W.23 and P.W.24 being the responsible police officers themselves, who have categorically stated about the D.W.1 having signed the receipt of the seizure memo in 15 Cr. Appeal (SJ) No.375 of 1988 (P) respect of the recovery and seizure inter alia of the blank payment advice forms from the iron safe kept in the house of R.K. Biswas and though the signature of the D.W.1 is not disputed yet the D.W.1 has failed to come up with any explanation as to why he put his signature; if the said blank payment advises were not recovered and seized from the house of R.K. Biswas when undisputedly it has been mentioned in the said seizure list that such blank payment advice forms were also recovered besides other documents and materials from the house of Mr R.K. Biswas. The evidence put forth by the D.W.2 and 3 are of not much consequence so far as dislodging the case of the prosecution is concerned. Thus despite the evidence put forth by the D.W.1 this court is of the considered view that the evidence in the record put forth by the prosecution by oral testimony as well as the documentary evidence as also the material exhibits establishes beyond reasonable doubt that the blank payment advice forms of the bank were recovered from the Iron chest of the co-accused R.K. Biswas.
34. As already indicated above in this judgment in detail the witnesses of the prosecution have vividly stated about each of the ingredients of the offences punishable under sections 120B/420/471 read with Section 468 of the Indian Penal Code and under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, 1947. The evidence in the record, as already discussed in detail in the foregoing paragraphs of this judgment, establishes that the appellant-convict entered into a criminal conspiracy with the co-accused persons and in pursuance of the said criminal conspiracy the co-accused two Biswas brothers in their individual capacity as well as partners of the firm produced forged payment advises and inter alia the appellant-convict, knowing the said payment advises to be forged, dishonestly with intent to facilitate further accommodation to the co-accused persons; marked off the liability of the said firm of the said co-accused persons on the basis of the said forged payment advises and also helped them by purchase of the cheques in deliberate violation of the rules and regulations of the bank, drawn by the said firm and its partners to keep the debit balance in their bank account within the functional limits and in this process inter alia the appellant-convict negotiated and also purchased 97 cheques issued under the signatures of R.K. Biswas in the individual capacity 16 Cr. Appeal (SJ) No.375 of 1988 (P) as well as in the capacity of the messenger of the partnership firm to enable the accused firm; in contravention of the stipulation that no cheques payable to the tenderers or its sister units would be purchased and the said cheques were forwarded inter alia by the appellant-convict to State Bank of India, Calcutta Main Branch for collection from the drawee bank. But the said purchased cheques were dishonoured causing wrongful loss of ₹ 57.24 lakhs to the State Bank of India. Thus the evidence in the record is sufficient to prove the charges for the offences punishable under section 120B/420/471 read with Section 468 of the Indian Penal Code and under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, 1947 beyond reasonable doubt. Accordingly conviction of the appellant-convict for the offences punishable under section 120B/420/471 read with Section 468 of the Indian Penal Code and under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, 1947 as made by the learned trial court in the impugned judgment is confirmed.
35. So far as the sentence is concerned, it is pertinent to mention here that rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases showing mercy to such corrupt official may send wrong signals. The Hon'ble Supreme Court of India, in the case of Narendra Champaklal Trivedi v. State of Gujarat, (2012) 7 SCC 80 has observed thus in paragraph -30 "Xxxxxxxxxxx It should be paramountly borne in mind that corruption at any level does not deserve either sympathy or leniency. In fact, reduction of the sentence would be adding a premium. The law does not so countenance and, rightly so, because corruption corrodes the spine of a nation and in the ultimate eventuality makes the economy sterile."
The appellant-convict has also not raised any grievance regarding the quantum of sentence in the appeal memo nor was anything in this respect agitated on behalf of the appellant-convict at the time of hearing of the appeal. Thus in this backdrop, considering the huge amount of wrongful loss caused to the bank by the appellant-convict, the sentence of one year also appears to be proper. Because of the facts of the case as well as law discussed above, this Court is of the considered view that the sentence of the appellant-convict so far as the offences punishable under section 17 Cr. Appeal (SJ) No.375 of 1988 (P) 120B/420/471 read with Section 468 of the Indian Penal Code and under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, 1947, as already mentioned above in paragraph- 2 of this judgment, as imposed by the trial court in the impugned judgment is proper.
36. Accordingly, the impugned Judgment of Conviction and Order of Sentence dated 30.08.1988 passed by the Special Judge, C.B.I. (South Bihar), Patna in Special Case No.3 of 80; so far as it relates to the offences punishable under section 120B/420/471 read with Section 468 of the Indian Penal Code and under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act,1947 is upheld but his conviction and sentence in respect of the offence punishable under section 477 A of the Indian Penal Code as already indicated above is set aside and he is acquitted of the charge in respect of the offence punishable under section 477 A of the Indian Penal Code. Accordingly this appeal is allowed in part.
37. The appellant-convict Arjun Prasad is on bail. In view of his conviction and sentence for the offences punishable under section 120B/420/471 read with Section 468 of the Indian Penal Code and under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act,1947, being upheld, bail granted to him is cancelled and he is directed to surrender before the learned court below within four weeks from the date of this judgment to serve out the sentence failing which the trial court is directed to take all coercive steps against him for undergoing the sentence.
38. Let the lower court records along with a copy of this judgment be sent to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 25th day of January, 2022 AFR/ Sonu-Gunjan/-