Karnataka High Court
D N M Raju vs State Of Karnataka on 9 April, 2008
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated the 9% day of April 2008 «--~ oe : BEFORE: Oa THE HON'BLE MR.JUSTICE : V. JAGANNATHAN | CRIMINAL APPEAL No. 24220, i A092 BETWEEN : D.N.M.Raju, S/o late S.Narasimhaiah, Aged about 34 years, . R/a Vishwanathapure Post & Village, : Devanahalli Taluk, Bangalcre. es Cashier/ Clerk, State Barik of Mysore,, West of Chera Road, Bangalore -560 686. | | .. Appellant af By 8 Sri spivesiin misty, Advocate. ) AND: ss oO State of Karnataka, by Central Bureau of Investigation, oo Bangalore. - ... Respondent - ( By Sri D.G. Hegde for Sri Ashok Haranahalli, Advocate. ) Criminal Appeal filed under Section 374(2) of the es a Cr-P.C. against the judgment dated 12.11.2002 passed by the XXI Addl.C.C. & S.J. & Special Judge for C.B.I. ~ Cases, Bangalore, in Spl.C.C.No. 128/1995, convicting and sentencing the appellant-accused for the offences as mentioned therein. € This appeal coming on for hearing this macs the court delivered the following : , JUDGMENT
The appellant was convicted by the trial court t for | the offences punishable under Sections 420, 468, 47 1 :
and 477-A of the LP. Cc. and | under Sections 13(2) read with 13(1)(d) of the Prevention. of. Corruption Act, 1988, and was sentenced. to 'undergo rigorous imprisonment for two years end to pay a fine of Rs. 1,000/- in respect of each of the. offences under Sections 420, 468, 471 and ATT A of the i i.P. ©. and to undergo default sentence of further two mouths rigorous imprisonment in the event © of non-payment of fine in respect of each of the "above offences and, as far as the offence under Section
-.13(2) vead with Section 13(1)(d) of the P.C.Act is concerned, the appellant was sentenced to undergo os. rigorous imprisonment for three years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months.
It is this judgment of conviction and sentence passed 4 against him, that the appellant-accused has preferred this appeal. mo
2. The prosecution case, in short, is to the efter that - . . the appellant, while working as 'cashier/clerk in 'State Bank of Mysore, West of Chord Road, 'Rajajinage Bangalore, during | the period from 5.7. 1989 to 5.11.1993, abused his official position as a public servant and fraudulently obtained four cheque books containing ten. leaves: each in the name of one S.C.Basevaraju, holder of B.B.A/c No. 5150, and by forging the signature of anid S.C. Basavaraju in all the ten cheque leaves 'pearing No. 0710028 dated 6.6.1993 a for ; Rs. 1 ,000/-, ~No.0703028 dated 13.11.1992 for
-- F350). _No.0705763 dated 13.12.1992 for Re. 5 ,000/-, " No.0705764 dated 16.1.1993 for Rs.8,009/-, No.0705767 dated 15.2.1993 for _ R8.1,000/-, _No.0705768 dated 25.2.1993 for >. R8.2,000/-, No.0705769 dated 9.3.1993 for Rs.4,800/-, No.0710022 dated 30.3.1993 for Rs.5,000/-, No.0710023 dated 5.5.1993 for Rs.2,000/- and be ts No.07 10024 dated 9.5.1993 for Rs.2,750/-, withdrew the said amounts for himself and thus caused wrongil loss to the Bank in a sum of Rs.32 050/- and, at the same time, the accused transferred an 'equal : amount into the account of Basavaraju by forging the signntures | of the account holders B. Krishnappa { 'Ss. B. Ase No. 128), A.Mariyappa (S.B. Ale No. 3756), M. Ga. Dasappa (S.B.A/c No. 4832), Keshavamurthy 6. 2. A/c No. 4920), M. Gurusweiny' s B. Aic" No. 3020), B.A.Raviprakash (s. B.Aje No. 5490), and B. C. 'Thimmaiah (S.B.A/c No. 5548) and thus, committed the offences punishable under Sections 420, 468, 471 and 477-A of the I.P.C. and i Sections 1392). read with "a 1)(d) of the P.C.Act. _ 3. Ma 'The prosecution afer going into the above acts of : the accused and after collecting necessary material in the form of the statements of the account holders | Inentioned above jas well as their specimen signatures
-- : and various account books and the cheques, which were the subject matter of the case, as well as the relevant entries in the bank records and, after obtaining the b-
expert opinion from the hand writing expert, charge- sheet was submitted by the Inspector of Police, C.B.I., against the accused. . | |
4. On the accused pleading n noz ty to the wee levelled against him by the trial cour, the Sroségutien | examined P.Ws.1 to 20, end produced, voluminous documents in the form of g xs. BL 'to P-232. The accused, when questioned. under Section 313 of the Cr. P. C., did not speotfically axhinit the evidence against him, but. aiso aid not deny the case of the prosecution altogether. in inis defence, the accused examined himself as Dw. 1 and 'produced documents Exs.D-1 to 8, 'The learned trial judge, after appreciating the evidence on record, came to the conclusion that the os prosecution had proved its case beyond all reasonable
- doubt with the help of the evidence of P.Ws.1 to 8, the _ account holders, and supported by that of the hand writing expert as well as the documents produced, and the said evidence of the account holders was not greatly .
wt by the appellant's counsel that in respect. uf the sentence imposed for the offence under the P c Act, the trial court has not given enough reasons for imposing os the sentence of more than one year on. the appellarst and, as such, the sentence passed : in respeut of the said. | offence requires to be reduced.
8. On the other hand, the | learned counsel for the respondent-C. BL. supported the view taken by the trial court on. ail aspects of the: matter and referring to the evidence _ 'on "record, it was submitted that no interference | is. 'called for by this court as the case is resting mainly on the documentary evidence as well as the evidence 'of. the account holders. As _ such, _-- perversity of finding can be made out from the judgment : of the trial court but, at the same time, the learned trial judge has discussed the evidence of each of the | SS _wiinesses at great length and has arrived at the right "conclusion in holding that the prosecution has proved all the offences against the appellant beyond all reasonable doubt. In support of the above submission, a a the learned counsel also referred to the evidence on record. As far as the reduction in sentence is concerned, it is submitted that, having regard te the * nature of the offences alleged and proved against the accused, no reduction in sentence { is s also warranted.
9. In the light of the submissions made as. above, the only point for consideration is whether the trial court committed any error in "sppresiating the evidence on record and consequently, whether it can be said that the judgment. of conviction and. sentence passed requires any interference at the hands of this court.
10. Having regard t to the nature of the charge levelled _ against the accused, it becomes necessary to find out a from the « evidence on record whether the prosecution has proved that the appellant forged the signature of
-- : Rasavaraju in the cheques drawn by him and secondly, _ whether the appellant also forged the signatures of other ore account holder and thereby caused loss to the bank to the tune of Rs.32,050/-.
ae sé
11. The material witnesses for the prosecution are P.Ws.1 to 8 and out of whom, P.W.5 is S. C. Besaveraju and this witness has stated in the course hie evidense 8 among other things that Ex. P-29 is. the pass book - pertaining to his account and Ex. P-28 is. s bis specinaen | signature card bearing his signatures at ExsF- -28(a) and P-28(b). This witness has stated that he has not drawn any amount through the ten cheques which have been marked as Exe, -P-20 to P-39 and Exs. P-30(a) and P-30(b) to P-39(@) and P-39%b) are not his 'signatures. He also says: in his evidence that P. W.: 1 Guruswamy had never given him the cheques Exs.P-4 to P-6 and that he had not presented the said cheques for encashment ¢ or for i crediting to his account and similarly says that Exs.P-11
- to P13. were not the cheques given to him by P.W.2 Krisbiappa and likewise, P.W.3 Mariyappa did not give os, him the cheques Exs.P-17 and P-18. He further says in . his evidence that Ex.P-22 to P-25 were not the cheques ace given to him by P.W.4 Dasappa and he did not receive any cheques as per Exs.P-40 and P-41 from P.W.6 Keshavamurthy and likewise, P.W.8 Raviprakash had be 10 not given him the cheque Ex.P-42. It is alsc in the evidence of this witness that the contents of the credit slips Exs.P-46 to P-62 are not in his handwriting m ner do oo they bear his signatures. |
12. The above evidence of P.W.5 finds support from the testimony of. the "other "witnesses. : P.W.1 Guruswamy, holder of .B.A/o No. 5030, _ has deposed in his evidence that be hag not taken the cheque book facility from that bank and he was not issued any cheque hook and he, on going through the cheques marked Exe. Pa dated '15.5. 1993 for Rs.5,000/-, P-S dated 30. 6. 1993 for Re. 2,500/-, and P-6 dated 7.8.1993 ou for Rs.2,900/- -, hes clearly stated that those cheques are
- 7 not issued by him and he has not received any such cheque leaves from the said bank nor he encashed the amounts shown therein nor he issued these cheques in | the name of Basavaraju at all.
_ 13. P.W.2 B.Krishnappa, account holder of S.B.A/c No. 128, says in his evidence that the three cheques Exs.P-11 to P-13 are not issued by him as he has not at i ~~ all availed the cheque book facility from the bank and the signatures at Exs.P-11(a), P-12(a) and P-13(a) are not his signatures.
14. It is in the evidence of P.W. 3 A. Maniyappe, enother account holder, that he has not: taken cheyue 'book facility for withdrawing the. smount and the signatures found at Exs.P-17(a) and Pp. 1844) are not his Signatures.
15. P.W. 4 M. a. Dacappa, holder of s. B.A/c No. 4832, has deposed to the effeci that he has taken cheque book facility to 'operate "his account and the cheques Exs. P-22, P-23, P-24 and P-25 were not issued by him ani the signatures at Exs.P-22(a), P-23(a), P-24(a) and : *s P-25(a) are not his signatures.
: 16. P. We. 6 'Keshavamurthy, another account holder, deposes to the effect that he has not taken the cheque | ~bock facility and was withdrawing the amount only we _ through withdrawal forms or slips and further says that he has not issued any cheque in favour of Basavaraju and the cheques at Exs.P-40 and P-41 are not issued by a e 2
12. him and the signatures therein at Exs.P-40{aj and P-41(a) are not his signatures.
17. P.W.7 D.C.Thimmaiah, yet. another account t holder 7 . :
of the bank, has stated in his evidence that the cheques at Exs.P-43, P-44 and P-45, issued § in favour at were not issued by him and they do not bear his tignatures at Exs.P-43(a), P-44(a) anid P-A5(a). ~ --
18. P. W. S B.A Raviprakash, 'another account holder, has to say this in his evidence. The cheque Ex.P-42 in the 1 name of Rasavaraju was not issued by him not does it contain his signature.
19. mm, we find that the account holders depose _ -consistently with regard to the fact of the cheques in : question referred to by them have not been issued by them and thus their evidence fully corroborates that of os P.W .5 Basavaraju.
20. P.W.9 P.V.Lakshminarayana, Special Assistant of the bank branch at Rajajinagara, deposes about the accused being in charge of S.B. Section and was to y a 13 receive the withdrawal slips and cheques presenied for encashment and he is acquainted with the signatures of the accused as well as the other officers who were = passing the cheques. The evidence of this witness also | : | reveals that in respect. of the account of P. W. i | Guruswamy, there have been several alterations and corrections.
21. P.W. 10 '. P. Usha, Assistant "Manager of Accounts, gives a brief description of the procedure followed in the bank: on. the cheque being ps presented by the depositors and. her evidence folly corroborates that of P.W.1 Guruswamy. SS . _
- 22. PW. Shantha is another bank official and she . : speaks. wo the verification part of the banking transaciiuns in respect of verifying the signatures of the os party on the cheques and she is also acquainted with
- the signature of the accused and it is in her evidence that the entries in the ledger sheet at Exs.P-81(c) and P-84(c) are in the hand writing of the accused and so also the entries at Exs.P-85(a) and P-85(b). 14
23. P.W.16 Malini, Cashier-cum-Clerk, has deposed in her evidence about the accused tendering the toxen and 7 receiving the cash and it is in her eviderwe that in | respect of the cheque Ex.P-30, she tendered Rs. i 000/- - and that the accused received Rs.5,500/- mentioned in Ex.P-31 by tendering the token at the cash counter after Signing at Ex.P-3 1(a) and Iikewise, the accused received Rs.5,000/- under cheque Ex. P-32 by signing at Ex.P- 32(c) and Rs, 5, 000/- again under cheque Ex.P-33 by signing it at Ex.P-35{c c) and Rs. 1,000/- by signing on the cheque Ex. P34. at Bx. .P-34(c) and thereafter, the accused received Re.2 ,000/- under cheque Ex.P-35 by oo signing it at Ex.P-35(c) in her presence and then the : 7 accused took Rs.4,800/-. by signing on Ex.P-36 at Ex.P- 36(o) The decused received Rs.5,000/- again under the cheque: Ex.P-37 by signing it at Ex.P-37(c) and by | SS presenting the cheque Ex.P-38 and signing it at Ex.P- ae _ 38(c), the accused received Rs.2,000/- from her. It is also in her evidence that Ex.P-39 was also presented by the accused by signing it at Ex.P-39(c) and received a 15 Rs.2,750/-. The above evidence of P.W.16 further adds weight to the testimony of P.W.S and other account holders.
24. The prosecution has also" examined : P.W.20 | S.N.Guptha, Deputy 'Government "Examiner of ' Questioned Documents, and be has given his opinion in respect of the questioned documents Ql to Q-322 and standard documents S-i to S- 137, $-144 to S-161 of D.N.M. Raju, 8-174 to $-179 of A Mariyappa, S-189 to $-194 of M.G. Dasappa, '$-201 to S-206 of Keshavamusthy, | 3.207 to S-212 of M.Guruswamy, $-213 to S-218 « of '$.C.Basavaraju, S-219 to S-223 of Raviprakash aud S-229 to S-234 of B.C.Thimmaiah, and . this witness has stated that the admitted documents of : the accused are A-1 to A-30 and Exs.P-171-to P-176 are the. signatures of the accused as S.C.Basavaraju and : after examining all the documents, P.W.20 gave his "opinion as under:
"i) the person (B.Krishnappa-P.W.2) who wrote the blue enclosed signatures, stamped a 16 and marked S.162 to S.167 (in Exs. P-110).
did not write the red enclosed signatures: :
similarly stamped and marked Q.2, Q-4, Q.5, _ Ba Q.7, 0.9, Q.11, Q.13, Q.15, Q.17, QB, a Q.20, Q.21 and Q.23;
ii) the person (A.Mariyappa-P. Vi 7.3) "who wrote the blue enclosed signatures stamped and marked S. i74 to.S. 179 (in Ex.P- 108) did not write the red. enclosed signatures similarly stamped end marked 9. 33, Q.35, Q.37 and & 208; a
ii) the: person a G. Dasappa-P. W.4) who "wrote the blue enciesed signatures, stamped end marker $.189 to S.194 (in Ex.P-109) did not - write. the. red enclosed signatures . Similariy. stamped and marked Q.66, Q.67, ; 0.69, Q.70, Q.72, Q.74, Q.76 and Q.264;
_ ivi "s, the person (Keshavamurthy-P.W.6) who wrote the blue enclosed signatures stamped and marked S$.201 to S.206 fin . Ex.P-68) did not write the red enclosed signatures similarly stamped and marked Q.83, 0.84, 0.86, 0.87, Q.89, 0.91, 0.266, Q.268, Q.269, Q.271, Q.274, Q.275, Q.277, Q.278, Q.280, Q.281, Q.283, 0.284, 0.286, Q.287 and 0.306;
-
.
18 vil) the person (Raviprakash - P.W.8) who . wrote the blue enclosed signatures staiaped S ; . and marked S.219 to S.223 {in BxPA77) did not write the red enclosed signatures a similarly stamped and marked (2291, 7 . 0.293, Q.294 and 0.296; and a :
viii) the person (B.C. 'Thinmaiah - - Pw.7) who wrote the blue. enclosed signatures stamped and marked 8.229 ta §.234 (in Ex.P72} . did not write: the Ted enclosed signatures 'similarly stamped and marked Q. 168, 9.249, 2.251, Q.253, 2.256, Q.257 © and @ 259.
52) Pw. 20 further opined that the person (accused facing the trial) who wrote the blue na enclosed 'signatures stamped 'and marked S.1 to S.137, 8.144 to S.161 and admitted documents of the accused marked as A.1 to A.20 also wrote the red enclosed writings similarly stamped and marked Q.1, Q.3, Q.6, Q.8, Q.10, Q.12, Q.14, Q.16, Q.19, Q.22, Q.24, Q.25, Q.27, 0.31, Q.32, 0.34, Q.36, Q.38, Q.43, 0.44, Q.46, 0.47, 0.49, 0.50 to Q.56, Q.58 to 0.65, 0.68, 0.71, Q.73, Q.75, Q.77, Q.79, Q.81, Q.82, Q.85, Q.88, 0.90, Q.92 to Q.127, Q.127/1, Q.128 to Q.133, & ae 19 Q.135 to Q.167, Q.169 to Q.248, Q.250,.
Q.252, 0.254, Q.255, 0.258, 0.260, Q.262, ", Q.263, Q.267, Q.273, Q.276, Q.282, Q.285, Q.288, 9.290 to Q.297, 9.295, ae. | (9.313, 0.314, Q.315, 0.316, (Ge17, Qa and Q.322."
29. Thus, from the above evidence placed o on. 5 record by the prosecution, it is 'established that the testinnniy of P.W.5 Basavaraju i is fully supported by the testimony of the other ecouunt holders and aiso , supported by the opinion ¢ given by the examiner of the documents P.W.20 as per Bx. P- y 13," 'The fact af the accused being working as Casinier/ Clerk in the State Bank of Mysore, West of Chord Road Branch, Rajajinagara, during the relevant
- 'period BI. 1992 to 5.11.1993 is not in dispute and so
- a also the testimony of the material witnesses has not been seriously disputed by the accused. Apart from the os above, a look at the reply given by the accused under ~ Section 313 of the Cr.P.C. also reveals that, to most of the questions put to him in respect of various cheques, the accused does not deny the case of the prosecution but only gives evasive answer by saying "I do not know". yy 20 Thus, on a careful examination of the entire evidiexice on record, I am of the view that the learned trial judge has rightly arrived at the conclusion that the. prosecution - has proved the case against the appellant beyond all ; reasonable doubt.
26. The summary of the discussion of the evidence is to be found at paragraph-54 of the ¢ judgment of the trial court which 'summary puts: in a nutshell the entire evidence. placed by the prosecution in support of its case. -I,. therefore, see no reason to disagree with the findings of the triai court nor can it be said that the view taken by. the trial court is contrary to the evidence on record or is | unreasonable. No compelling grounds are . "made 'out Tor upsetting the judgment of conviction seca by the trial court.
q7. As far as the sentence aspect is concerned, the trial court has sentenced the accused to two years 'rigorous imprisonment in respect of all but the offence punishable under the P.C.Act. The submission of the appellant's counsel is that, in respect of the offence & Sal 21 under Section 13(2) read with Section 13(1)(d) 'of the P.C. Act, the trial court has sentenced the appcilant to three years rigorous imprisonment and, theretare, ms, insofar as the sentence awarded i in respect of the offence under the P.C.Act is concerned, the same be reduced. Having regard to the above 'submission made by the learned counsel for the appellant and also after hearing the learned counsel for the | Cc. BL, who opposes the sentence beitg reduced, in my: view, in view of the appellant heving already sutiered punishment by way of dismissal from : service. ¢ from the bank and the trial court having sentenced chim to two years rigorous imprisonment 4 in 'respect of each one of the [P.C. 7 oifences, having regard to all the above factors, in
- "respect. of the sentence for the offence under the P.C.Aet, the period can be reduced from three years to
- two years to meet the ends of justice. Thus, to the 7 extent of sentence being reduced for the offence under 'the P.C.Act, this appeal will have to be allowed in part.
28. In the result, I pass the following order:
by 22 The conviction of the appellant by the triai court for the offence under Sections 420, 468, 47 1 and aT. A of the LP.C. and Section 13(2) read with 13(1a) of f the 7 P.C. Act is sustained. -- | Insofar as the sentence passed against the | appellant in respect of each. of the offence under the I.P.C. is concerned, the same . does not 'require any interference. But, however, as "regards the sentence passed in respect of the 'offence: punishable under Section 13(2) vead with Section 13(1)(d) of the P.C.Act, instead of three years rigorous imprisonment, the same is modified into" : twa years rigorous imprisonment. Excepting . this 'moitification, in respect of the fine ; - amount, no modification i is required. The appeal, therefore, stands allowed to the extent of moditying the period of sentence as above insofar as
- : the offence under the P.C.Act is concerned.
The appellant is said to be on bail and, therefore, ~~ he shall forthwith surrender before the trial court to undergo the sentence imposed upon him and the learned trial judge shall also take necessary steps to & secure the presence of the appellant-accused for him to serve out the sentence. The appellant is also entiited to set off under Section 428 of the Cr.P.C. _ cke/- a --. Fudge