Bangalore District Court
State By Mahadevapura Ps vs S.Ravindranath on 30 June, 2015
IN THE COURT OF THE IV ADDL. C.M.M AT BANGALORE.
DATED THIS THE 30th DAY OF JUNE 2015
PRESENT
Ms.Vela D.K. B.A., L.L.B., (Hon's)
IV A.C.M.M. Bangalore.
CC No. 22902/2008
Complainant : State by Mahadevapura PS
V/s.
Accused : S.Ravindranath, 47 Yrs.,
S/o Vishwanath,
R/a. No.35, 1st cross,
Shathi Layout, Ramamurthynagar,
Bengaluru.
JUDGMENT
Mahadevapura Police have charge sheeted the accused alleging the offence punishable u/s.409 of IPC.
2. The case alleged by the prosecution against the accused has been that the accused being the public servant and Senior Assistant in State Bank of India, Kundanahalli Branch during the period from 5.3.2007 to 9.3.2007 while working in the Cash Counter is said to have collected sum of Rs.1,09,350/- from the customers CW4 to CW7 and not to have deposited amount in their respective accounts. Further, the accused is said to have used the said amount for personal purpose and dishonestly misappropriated the said amount and thereby committed criminal breach of trust and committed the offence punishable u/s.409 of IPC.
2 CC 22902/20083. On filing of the charge sheet in the above said case, cognizance was taken for the said offences and summons was issued to the accused. The case papers were handed over to the accused. Plea recorded. Accused pleaded not guilty and claimed trial. To prove the case the prosecution has got examined the complainant as PW1, Branch Manager of SBI CW3 as PW2, Deputy Manager of SBI CW2 as PW3, Retd. Branch Manager of SBI CW8 as PW4 and got marked Ex.P.1 to Ex.P.29. After the prosecution submitted its side closed, the statement of the accused u/s.313 of Cr.P.C. was recorded, wherein the accused has denied all the incriminating evidence appearing against him. There is no defence evidence in the present case.
4. On hearing the merits of the case, the points that arise for consideration are as follows :
1) Whether the prosecution proves beyond all reasonable doubt that, the accused being the public servant and Senior Assistant in the SBI, Kundanahalli branch during the period from
5.3.2007 to 9.3.2007 while working on the cash counter collected sum of Rs.1,09,350/- from the customers CW4 to CW7 and did not deposit the same in their respective accounts and used for personal purpose thereby dishonestly misappropriated the said amount and committed criminal breach of trust punishable u/s.409 of IPC ?
2) What order ?
5. The findings on the above points are as follows:
Point No.1 : In the negative.3 CC 22902/2008
Point No.2 : As per the final order for the following:
REASONS
6. Point No.1: The entire case of the prosecution has been on the ground that the accused while working in the Cash Counter of the SBI at Kundanahalli branch during the period from 5.3.2007 to 9.3.2007, is said to have not deposited the amount collected from the customers CW4 to CW7 to the tune of Rs.1,09,350/-, thereby dishonestly misappropriated the said amount for his own purpose. For this nature of the allegation it is now necessary to know as to what kind of evidence placed before the court. At the outset it is to be noted that, Ex.P.25 is the copy of the appointment order of the accused dated 29.4.1985 wherein it is mentioned that the accused to have been appointed as the Clerk - Cashier.
7. To show that what was the kind of work of the Clerk Cashier, in the oral evidence the Branch Manager PW1 who is also the complainant has deposed that this accused to be working as Single Window Operator. The duties and the responsibilities of the accused was said to be
1) To receive the cash from the customers and credit the same to the respective accounts immediately.
2) To make payment of cash to the customers and debit the amount from the account of customers immediately.
3) The general duties were also assigned.
4 CC 22902/20088. The modus operandi of the accused according to his witness was said to be as follows :
• Initially when a non-home branch customers comes to bank to deposit by Core Banking, he used to receive the amount and give back the counterfoil with his endorsement of sign and seal.
• The accused instead of depositing the amount to the respective accounts, used to misappropriate it and the challans were also not entered in the bank registers.
• Later on when the customers come and complain about the non deposit of the amount to their respective accounts, the accused used to do the same type of acts in respective of the amount received from other customers and deposit the said amount and thereafter to the account of the customers who raises a complaint.
9. Further he has stated that, on receipt of the complaint, he is said to have verified the accounts of the customers and found that no excess amount has been kept in the sundry deposit account by the accused. The challans furnished by the customers were said to be retained in his custody itself and not recorded them in the bank transaction. Next day he and CW3 i.e. PW2 are said to have verified the day books and vouchers. They found that the amount of the customers to be not credited to their respective accounts. Accused is said to have retained the challans with him but had handed over the counterfoil to the customers. The corresponding challans to the counterfoils were said to have been not accounted by the accused. He is said to have not even opened the account in the system. The 5 CC 22902/2008 accused is said to have temporarily misappropriated the amount of Rs.1,09,350/- and later deposited the amount. The details is said to be as follows :
Sl. Date of Account No. Customers Amount Actual No. Remittance Name tendered credit into the account by the accused
1. 05.03.2007 10677754931 Bangali Mahto 2,500/- 30.04.2007
2. 05.03.2007 10481602242 CHV Ramanaiah 15,600/- 06.03.2008
3. 06.03.2007 10801090127 Vasdev Tikaria 4,500/- 12.03.2007
4. 06.03.2007 11091091365 Goli Pradhan 12,500/- 12.03.2007
5. 06.03.2007 11090997017 Aruna Kumar 5,000/- 12.03.2007
6. 06.03.2007 11090998022 Alok Bhola 15,000/- 12.03.2007
7. 07.03.2007 10545564826 Sushila Devi 5,500/- 12.03.2007
8. 07.03.2007 30140355154 Madhav Meruga 10,000/- 10.03.2007
9. 07.03.2007 30138222356 Akram Khan 1,000/- 10.03.2007
10. 08.03.2007 30140354853 Ravindra Y 1,000/- 10.03.2007
11. 08.03.2007 01190011220 P.Nagaraja 10,000/- 16.03.2007
12. 08.03.2007 10895339925 Dayaparam P 1,750/- 12.03.2007
13. 09.03.2007 10203016619 Ravi B 20,000/- 12.03.2007 Total 1,09,350/-
10. This nature of misappropriation is said to have come to the knowledge of the PW1 during the period from 9.3.2007 to 15.3.2007 but the complaint has been filed as per Ex.P.1 on 11.12.2007. Prior to lodging of the complaint, the sanction from the higher officers as per the RBI rules is said to be required to be obtained. In particularly he has stated as follows :
6 CC 22902/2008"F jÃwAiÀiÁV £Á£ÀÄ ¸ÀzÀj ªÉÇÃZÀgïUÀ¼À, PËAlgï¥sÁ¬Ä¯ïUÀ¼À C¢üPÀÈvÀ ¸ÀÄ¥À¢ðzÁgÀ£À®è JAzÀgÉ ¸Àj. F jÃwAiÀiÁV £Á£ÀÄ ¸ÀzÀj zÁR¯ÉUÀ¼À §gÀºÀUÁgÀ£Á¢zÀÝjAzÀ, C¢üPÀÊvÀ ¸ÀÄ¥À¢ðzÁgÀ£À®èªÁzÀÝjAzÀ CªÀÅUÀ¼À£ÀÄß zÀÈrüÃPÀj¸À®Ä £À£ÀUÉ C¢üPÁgÀ E®è JAzÀgÉ ¸ÁQëAiÀÄÄ ±ÁSÁ ªÀåªÀ¸ÁÜ¥ÀPÀ£ÁV ªÀiÁrzÉÝÃ£É J£ÀÄßvÁÛgÉ. "
11. The signature as true copies are said to be in the documents marked as Ex.P.3 to Ex.P.14. He admits not to have produced the documents about the accused being appointed by stating as follows :
"F jÃwAiÀiÁV £Á£ÀÄ DgÉÆæAiÀÄ PÀvÀðªÀå £ÉêÀÄPÁw ªÀ»AiÀÄ£ÀÄß £Á£ÀÄ ºÁdgÀÄ¥Àr¹®è. "
At the same time he has also stated as follows :
" ¯ÉPÀÌ¥Àj±ÉÆÃzÀs£Á ªÀgÀ¢AiÀÄ ¥ÀæPÁgÀ ¨ÁåAPïUÉ AiÀiÁªÀÅzÉà £ÀµÀÖ DVgÀĪÀÅ¢®è. CzÉà jÃwAiÀiÁV ¸ÀzÀj UÁæºÀPÀgÀÄ ¸ÀºÀ £À«ÄäAzÀ £ÀµÀÖ ¥ÀjºÁgÀ ¸ÀºÀ PÉýgÀĪÀÅ¢®è. ¸ÀzÀj zÀÄgÀÄ¥ÀAiÉÆÃUÀ vÁvÁÌ°PÀªÁVzÀÄÝ 1 jAzÀ 5 ¢£ÀUÀ¼À ªÀgÉUÉ DVgÀÄvÀÛzÉ. F jÃwAiÀiÁV DgÉÆæAiÀÄÄ JgÀqÀÄ ¨ÉÃgÉ ±ÁSÉUÀ½AzÀ, zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹PÉÆArzÀÝ ºÀtªÀ£ÀÄß dªÀiÁ ªÀiÁrzÀ §UÉÎ £Á£ÀÄ zÁR¯ÉAiÀÄ£ÀÄß ¥ÀqÉ¢zÉÝãÉÆà E®èªÉÇà JAzÀÄ ºÉüÀ®Ä DUÀĪÀÅ¢®è."
The cash that was said to have been given to the accused was said to have been in fact deposited by the accused to the respective accounts of the customers.
12. The Branch Manager of Belavadi Industrial Estate, SBI is examined as PW2. No doubt he has deposed similar to PW1. His evidence has been that on enquiry the amount was said to have been found misappropriated by the accused.
7 CC 22902/200813. The Field Officer examined as PW3 has deposed similar to PW2. The other only important witness adduced by the prosecution has been PW4. He is the Retd. Branch Manager of SBI. According to him he is said to have conducted the enquiry by virtue of the order received from the higher authorities. He was to conduct the enquiry for the period from 15.3.2007 to 30.4.2007. Unfortunately this witness has also stated as follows :
"FUÀ £À£Àß ºÀwÛgÀ EgÀĪÀ PÀqÀvÀzÀ°è F jÃwAiÀiÁV ¥ÁæzÉòPÀ ªÀåªÀ¸ÁÜ¥ÀPÀgÀÄ ¸ÀzÀj D¥ÁzÀ£É ¥ÀnÖAiÀÄ£ÀÄß eÁj ªÀiÁrzÀ §UÉÎ £À£Àß ºÀwÛgÀ ¥Àæw EgÀĪÀÅ¢®è. F jÃwAiÀiÁV £Á£ÀÄ ¨ÁåAPï£À ±ÁSÉUÉ ºÉÆÃzÁUÀ ªÀåªÀ¸ÁÜ¥ÀPÀgÀÄ PÉ®ªÉÇAzÀÄ zÁR¯ÁwUÀ¼À£ÀÄß PÉÆlÖ §UÉÎ £À£Àß ºÀwÛgÀ »A§gÀºÀ EgÀĪÀÅ¢®è. F jÃwAiÀiÁV £Á£ÀÄ zÁR¯ÁwUÀ¼À£ÀÄß ¸ÀzÀj ªÀåªÀ¸ÁÜ¥ÀPÀjAzÀ ¥ÀqÉzÀ §UÉÎ AiÀiÁªÀÅzÉà »A§gÀºÀªÀ£ÀÄß DgÉÆæUÉ PÉÆnÖ®è. £Á£ÀÄ F jÃwAiÀiÁV DgÉÆɦAiÀÄ PÉ®¸ÀzÀ ªÀ»AiÀÄ ¥ÀæwAiÀÄ£ÀÄß ¥ÀqÉzÀ §UÉÎ £À£Àß ªÀgÀ¢AiÀÄ°è PÁtô¹®è. DgÉÆæAiÀÄÄ F jÃwAiÀiÁV »jAiÀÄ ¸ÀºÁAiÀÄPÀ£ÉAzÀÄ PÉ®¸À ªÀiÁqÀÄwÛzÀÝ J£ÀÄߪÀ §UÉÎ £À£Àß ºÀwÛgÀ AiÀiÁªÀÅzÉà zÁR¯É EgÀĪÀÅ¢®è. "
14. The complaints that were received against the accused about non deposit of the amount are said to be as per Ex.P.5, 7, 9, 11 and
3. At the time of enquiry, he is said to have seen only photo stat copies of the documents and not the original. The normal procedure according to him is said to be as follows :
"¸ÁªÀiÁ£ÀåªÁV ¨ÁåAPï£À°è qÉçÄPï JA¢zÀÄÝ ¢£À¤vÀåzÀ ªÀåªÀºÁgÀ ªÀÄÄVzÀ £ÀAvÀgÀ ¸ÁAiÀÄAPÁ® CPËAmÉAmï ºÁUÀÆ ªÀåªÀ¸ÁÜ¥ÀPÀgÀÄ ¸ÀzÀj ªÉÇÃZÀgïUÀ¼À£ÀÄß, ZÉPÀÄÌUÀ¼À£ÀÄß CzÀgÉÆA¢UÉ ¥Àj²Ã°¹ £ÀªÀÄÆ¢¸ÀÄvÁÛgÉ JAzÀgÉ ¸Àj. "8 CC 22902/2008
15. In detail the complaint as per Ex.P.1 mentions that the customers are said to have confirmed that they had remitted the cash during the period in the Single Window Counter of the branch managed by the accused who is said to have issued only counterfoils without the credit entry. The pay-in-slips of the customers was said to have been retained by the accused unauthorisedly. The account of the respective customers were said to have been made out at Ex.P.1 and the details are as above noted.
16. The concerned mahazar after lodging of the complaint has been marked as Ex.P.2. In regard to the documents of the customers, it is now necessary to know that this Ex.P.3 has been addressed by Bangali Mahto when the amount deposited by him to have been not transferred to his account, it is dated 20.3.2007. This customer is said to have deposited amount of Rs.2,500/- on 5.3.2007. Copy of the counterfoil is marked as Ex.P.4. Ex.P.5 mentions about non credit of sum of Rs.15000/- to the account of Alok Bhola. That amount is said to have been deposited in counter No.2 on 6.3.2007 but this letter is dated 15.3.2007. The copy of the counterfoil has been marked as Ex.P.6. Ex.P.7 is another such complaint dated 15.7.2007 and the copy of the counterfoil is Ex.P.8. Similar has been Ex.P.9 and its counterfoil Ex.P.10. Ex.P.11 is the copy it mentions that amount to have been not credited till date. The counterfoil for the amount of Rs.2500/- Ex.P.12 in the name of Goli Pradhan. Ex.P.13 is the counterfoil of Aruna Kumar. Ex.P.14 is the counterfoil of Susheela. Copy of the account pay in slip Ex.P.15 is dated 121.3.2007 and similar such account pay in slip is marked Ex.P16 to Ex.P.13.
9 CC 22902/200817. At this juncture it is interesting to note that all the documens produced before the court are copies and there are no original documents produced at all. With regard to the this type of allegation those documents would be usually available in the bank. In fact, PW1 has in the oral evidence admitted that these documents to be not certified by the customers and that the credit vouchers not to have been certified as the true copies. The complaint mentions about duly certified and copies to be produced and does not contain about the production of the original documents.
18. Ex.P.24 is the copy about investigation of the case of misappropriation of the cash addressed by the Asst. General Manager, SBI to PW4. It is the report which mentions about the procedural lapses :
1. The Cash Receipt and Delivery Book is not maintained by the Cash Officer and SWOs.
2. Record / Book containing Non Home Branch Transaction wherein details of transaction, amount of transaction and initials of SWO, Checker and Branch Manager are not maintained.
19. Further it mentions - Going by the records, deposition the following lapses are substantiated :
1. The employee Sri. S.V.Ravindranath, Senior Assistant has misappropriated funds belonging to the customers for period ranging 1 day to maximum of 56 days.10 CC 22902/2008
2. Though there is no monetary loss reported at present, there could be monetary loss at a later date as there may be transaction not reflected in Bankbooks, which may surface from the Customer's complaints.
3. He has also mis utilised the position as an employee by taking a loan of Rs.12,000/- from the Current A/c holder M/s.R.K.Travels.
4. The malafide intention of the employee is discernible.
Ex.P.26, the accused shows that on account of the grievances against the accused, he was deputed to Air Cargo Branch. The disciplinary proceedings initiated has been marked Ex.P.27 wherein the accused has been suspended and Ex.P.29 is the initial reference format about the misappropriation alleged against the accused. Ex.P.28 is in reference to Ex.P.29.
20. It is to be noted that, inspite of the production of the appointment order as per Ex.P.25 that the accused to be appointed as Clerk Cashier, the responsibilities is not forthcoming in this document though it has been stated in the oral evidence by PW1. Even though no such specific document has been produced, there has been also non production of the original documents in the present case. Inspite of the copies being produced, the same are not certified by the authorised persons. Therefore, when such is the nature of the evidence adduced by the prosecution then mere production of the copies by itself cannot amount to the proof of the essential requirements of entrustment and the allegation of 11 CC 22902/2008 misappropriation against the accused. The entire evidence when considered before the court goes to show that there has been mere marking of the document which consists of only the copies and they are not supported by any oral evidence inspite of the said documents being not certified by the authorised persons. Such being the evidence, in the facts and circumstances of the case for the offence u/s.409 of IPC the prosecution is required to prove the following :
1. Accused is a Public servant, merchant, agent , a factor, broker or an attorney.
2. In his such capacity he was entrusted with some property or he gained dominion over such property.
3. He committed criminal breach of trust.
21. It has been discussed in commentary of Bholeshwar Nath's Indian Penal Code, Fourth Edition, Volume - 2, Sections 302 to 511 as follows : .
The citation reported in AIR 1974 SC 744 : 1974 Cr L J 678 wherein it is held that, "It is the capacity of the accused in which entrustment made is punishable under this Section on misappropriation or conversion to his own use".
Citation reported in AIR 1981 SC 1096, "Prosecution must prove entrustment and misappropriation".
22. Misappropriation :
1. Unless the prosecution was able to establish that the respondent had misappropriated the amount, 12 CC 22902/2008 prior to 26.2.1979, charge under Section 409 IPC could not stand scrutiny. State of Kerala v. M.Gopalan, 2000(4) Crimes 275 (SC).
23. Proof :
1. The most essential ingredient for proof of criminal breach of trust is misappropriation with a dishonest intention. Breach of trust is not an offence if it is not associated with intention which is dishonest, word 'dishonestly' defined in Section 24, IPC means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another. So offences is complete when misappropriation conversion of the property has been made dishonestly. Even temporary misappropriation falls within the ambit of the offence. Kartikeshwar Nayak v. State 1996 92) Crimes 113.
9. If the fact of deposit had not been reflected in the Pass Book. Pw11 in whose Custody the pass book was all along till it was submitted for cancellation of the interest would have complained to the 'sarpanch' as well as the postal authorities for taking legal actin against the petitioner. That having not been done. The needle of suspicion points at PW 11 as to if he had entrusted the money on the dates as mentioned in FIR. All these facts and circumstances lead an irresistible conclusion that there had been no temporary misappropriation of the moneys of the 'Gram Panchayat' by the petitioner and only on suspicion both the Courts below arrived at wrong conclusion finding him guilty of charge. Kartikeshwar Nayak.
State, 1996 (2) Crimes 113 : 1996 Cr LJ 2253 :
1996 (2) Crimes 112 : 1996 (81) Cut LT 185 :
1996 (1) Crimes KR 62 : 1996 (10) OCR 66 : 1996 (2) Cur Cr R 521.13 CC 22902/2008
24. So by virtue of the above discussed citation it means that there has been allegation about non remittance of the amount in regard to the customers and the account number mentioned in the complaint. There is no oral evidence with regard to those customers, the concerned pass book is not produced. Above all no single documents in original has produced before the court. This evidence of PW1 goes to show that he himself has not enquired from the concerned Branch Manager with regard to the deposit of the amount by the accused. Dishonest intention to misappropriate is not forthcoming in the present case for the reason that the PW1 himself has stated that usually in the day to day transaction at the end of the day in the bank, the concerned vouchers and the cheques would be verified by the Accountant and the Branch Manager. Though at one juncture it is stated that, cash deposit by the customers to have been deposited by the accused, but with regard to these counterfoils especially no documents have been produced to show that if there has been withdrawal of those amount. Thereby the nature of the evidence has been about marking of the copies of the counterfoils. What is the act if any of the accused to use the counterfoil so as to misappropriate by dishonest intention is not substantiated by the prosecution in the present case. On account of the non availability of the evidence with regard to these copies of counterfoils, the benefit of doubt has to be given to the accused and the point for consideration is answered in the negative.
25. Point No.2 : In view of finding on the above point, the following :
14 CC 22902/2008ORDER Acting U/s. 248 (1) of Cr.P.C. accused is acquitted of the offence punishable U/s.409 of IPC.
Bail bonds of the accused and surety stands cancelled.
(Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 30th day of June 2015) (Ms. Vela D.K.) IV Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution :
PW.1 : Gurunath S. Karagar PW.2: Durgappa V. PW.3: M.Jayaprakash PW.4: H.S.Gopinatha
List of exhibits marked for prosecution :
Ex.P.1 : Complaint
Ex.P.2 : Mahazar
Ex.P.3 : Attested copy of complaint given by Bangali Mahto
Ex.P.4 : Attested copy of pay in slip counterfoil
Ex.P.5 : Attested copy of complaint given by Alok Bhola
Ex.P.6 : Attested copy of pay in slip counterfoil
Ex.P.7 : Attested copy of complaint given by Madhav Meruga
Ex.P.8 : Attested copy of pay in slip counterfoil
Ex.P.9 : Attested copy of complaint given by A.Subramanya
Ex.P.10 : Attested copy of pay in slip counterfoil
Ex.P.11 : Attested copy of complaint given by Ravi B.
15 CC 22902/2008
Ex.P.12 : Attested copy of pay in slip counterfoil of Goli Pradhan Ex.P.13 : Attested copy of complaint given by Aruna Kumar Ex.P.14 : Attested copy of pay in slip counterfoil of Sushila Devi Ex.P.15 : Attested copy of pay in slip of Goli Pradhan Ex.P.16 : Attested copy of pay in slip of C.H.V.Ramanaiah Ex.P.17 : Attested copy of pay in slip of Sushila Devi Ex.P.18 : Attested copy of pay in slip of Madavi M. Ex.P.19 : Attested copy of pay in slip of Akram Khan Ex.P.20 : Attested copy of pay in slip of Ravindra Y Ex.P.21 : Attested copy of pay in slip of Dayaparam Ex.P.22 : Attested copy of pay in slip of Ravi B. Ex.P.23 : Attested copy of pay in slip of Vasudeva Ex.P.24 : Enquiry report Ex.P.25 : Attested copy of appointment order of accused Ex.P.26 : Letter addressed to AGM Ex.P.27 : Disciplinary proceedings dated 17.4.2007 Ex.P.28 : Letter addressed to DGM dated 25.10.2007 Ex.P.29 : Initial reference format.
List of M.O.s marked for prosecution : NIL List of witnesses and exhibits marked on behalf of accused : NIL (Ms. Vela D.K.) IV Addl.Chief Metropolitan Magistrate, Bangalore.16 CC 22902/2008
30.06.2015 State by Sr.APP Accused For judgment ORDER (pronounced in open court vide separate order) Acting U/s. 248 (1) of Cr.P.C. accused is acquitted of the offence punishable U/s.409 of IPC.
Bail bonds of the accused and surety stands cancelled.
(Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 30th day of June 2015) (Ms. Vela D.K.) IV Addl.Chief Metropolitan Magistrate, Bangalore.
17 CC 22902/2008