Madras High Court
A. Muthu vs State Rep. By on 2 December, 2010
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/12/2010 CORAM THE HONOURABLE MR. JUSTICE S.PALANIVELU Criminal Appeal No.72 of 1998 Criminal Appeal No.73 of 1998 Criminal Appeal No.74 of 1998 Criminal Appeal No.75 of 1998 Criminal Appeal No.76 of 1998 Criminal Appeal No.77 of 1998 Criminal Appeal No.78 of 1998 Criminal Appeal No.79 of 1998 Criminal Appeal No.80 of 1998 Criminal Appeal No.81 of 1998 Criminal Appeal No.82 of 1998 Criminal Appeal No.83 of 1998 Criminal Appeal No.84 of 1998 Criminal Appeal No.85 of 1998 A. Muthu .. Appellant [in all Crl.As.] Vs State Rep. By Deputy Superintendent of Police, Central Bureau of Investigating .. Respondent [in all Crl.As.] Appeal filed u/s.374(2) Cr.P.C., against the conviction and sentence passed by the Special Judge for CBI Cases, Madurai, made in C.C.Nos.17 to 30/95 by its judgment dated 18.12.97. !For Appellant ... Mr.S. Muthukrishnan for Mr.J. Gunaseelan Muthiah ^For Respondent ... Mr.S.Rozario Sundarraj Special Public Prosecutor for CBI cases. :COMMON JUDGMENT
1. The factual scenario of the prosecution case is as follows:-
[i] The appellant had been working as Clerk cum Cashier in Bank of India Branch in M.Pudupet village in Virudhunagar District from 03.03.1989 to 16.12.1989. He is a public servant who misused his official position and in order to get unlawful gains, misappropriated the amounts which have to be credited into the accounts of the account holders/Bank customers by preparing fake withdrawal slips, by not remitting the entire amount into the Bank obtained from the customers, by correcting the bank records and also by making wrong entries in the passbook and accounts ledgers thereby misappropriated to the tune of Rs.70,665/- and hence he is punishable u/s. 409 and 477(A) of IPC r/w Sections 13(1)(c) (d) r/w Section 13(2) of Prevention of Corruption Act.
Separate charge sheet laid by the Deputy Superintendent of Police of Central Bureau of Investigation, Chennai on each of the complaint.
[ii] P.W.1 was working in the Madurai Regional Office of Bank of India between July 1989 to April 1991. He participated in the Branch Manager's meeting held at Madurai on 10.11.1989 in which the Branch Manager of M.Pudupet Branch by name I.Periasamy also participated. He complained to PW1 that the cashier working in the said branch namely the appellant was not up to the rank. He also told that he did not prefer any complaint against him before the superior officials. In January 1990, it came to light that amounts were not properly maintained in the inspection taken by the Regional Manager in the above said branch. Two customers addressed a letter to the Regional Office on 13.01.1990 expressing dissatisfaction as to the maintenance of accounts in the branch. Hence, at the first instance, one Mr.P.R.Kalyanaraman from the Zonal Office was deputed to the said branch for enquiry. He made an enquiry and submitted a report in which he has mentioned that the appellant did not credit into the bank accounts, the amount received from the customers. On verification, P.W.1 found that there was much difference between the bank passbooks of the customers and the bank ledgers as to the entries and hence he made a request to the Zonal Office to conduct a full fledged enquiry. One Vivekanandan was deputed for investigation. P.W.1 also accompanied him for his assistance.
[iii] A good number of customers produced their pass books and complained that the entries were not made properly in their pass books. The said Vivekanandan and P.W.1 compared the entries found in the passbooks and corresponding entries in the bank ledgers and wherever they found difference, they got a written complaint from the concerned customers. Since the appellant was working under P.W.1 in Sivakasi Branch, P.W.1 could identify his handwriting and signature.
[iv] P.W.4, by name Eswaran, gave request Ex.P.1 to open Savings Bank Account in the Branch for which the then Branch Manager Premachandran issued Ex.P.2 Passbook. The appellant passed Ex.P.5 receipt to him on receipt of Rs.6,000/- from him on 03.03.1989 and also made entries in the Savings Bank Account but the said amount was not credited into the Bank which is seen from absence of corresponding entries in the Bank ledgers. As per Ex.P.2, passbook, the balance should be Rs.6081.20 but as per Ex.P.6, statement of accounts, only Rs.96.04 was shown as balance.
[v] One R.Indra on 26.08.1987 gave an application Ex.P.7 and opened Savings Bank Account No.6 and got Ex.P8 Savings Bank Account Passbook. She laid complaint Ex.P.9. As per entries available in the Pass Book there should be a balance of Rs.9,051.85. But as per Ex.P.10, Statement of Account, the balance was Rs.1,501.85. By means of withdrawal slips Exs.P.11 and P.12 dated 29.6.1989 and 20.9.1989, Rs.3,500/- and Rs.4,000/- were withdrawn respectively. In Ex.P.11 the appellant put his signature and carried the figures to the ledger which was duly cancelled by the bank manager and appellant. Ex.P.12 was passed by the appellant and received amount which was passed by the then Branch Manager Premachandran. The entry with regard to Ex.P.12 has been written in Ex.P.13 payment scroll by the appellant. Ex.P.14 by means of payment scroll shows the amount withdrawn under Ex.P.11. By virtue of Ex.P.15 withdrawal slip, Rs.4,000/- was withdrawn from her account on 11.10.1989.
[vi] One Jayalakshmi opened Savings Bank Account on 26.8.1987 by giving Ex.P.16 application and obtained Ex.P.17 Pass Book. The Branch Manager Premachandran opened the account. On 11.10.1989, through Ex.P.18, withdrawal slip Rs.9,000/- was withdrawn. The slip was filled up by the appellant and I.Periasamy passed the same and cancelled it. In Ex.P.19 statement of account, it is stated that Rs.5,000/- was withdrawn while payment scroll Ex.P.13 shows Rs.9.000/- was withdrawn.
[vii] One Paul Devar on 26.8.1987 gave an application Ex.P.20 and opened Savings Bank Account and obtained Ex.P.21 Pass Book. A sum of Rs.2,000/- was withdrawn through Ex.P.22 withdrawal slip dated 24.9.1989. It was filled up by the appellant. The payment scroll book entries are Ex.P.23. In the pass book, the appellant has written that Rs.1,000/- was withdrawn. As per Ex.P.24 letter, the balance should be Rs.212.12, but the balance of Rs.47.30 alone was available.
[viii] P.W.7 Ponraj on 26.8.1987 obtained pass book after opening Savings Bank Account by giving Ex.P.25 application. According to Ex.P.27 slip, on 28.8.1989 Rs.1,300/- was deposited . Relevant entry is available in the pass book but in ledger book Ex.P.28, cporresponding entry is not made. On 7.8.1989 Rs.2,100/- was deposited as per Ex.P.148. On 29.8.1989 and 26.8.1989, Rs.600/- each on two occasions and Rs.300/-were withdrawn as per Exs.P.149 to 151 respectively. Hence, Rs.1,609.94 must be available in his account. But only Rs.11 was shown as balance and hence he lodged the complaint Ex.P.152.
[ix] On 9.3.1988 one P. Nagammal opened Savings Bank Account by giving Ex.P.29 application and obtained Ex.P.30 pass book. According to Ex.P.31 challan, Rs.8,000/- was deposited. Relevant entry is available in the passbook. But in the ledger book Ex.P.32, entry is not found. Hence she lodged complaint Ex.P.33. On 7.9.89 as per withdrawal slip Ex.P.34 Rs.2,000/- was withdrawn. This detail is available in Ex.P.13 payment scroll and Ex.P.32 Ledger Book. But not available in the pass book.
[x] One V. Jayalakshmi on 1.6.1988 gave an application Ex.P.35 and opened Savings Bank Account and obtained Ex.P.36 Pass Book. Except the initial entry, other entries were made by the appellant. A sum of Rs.1,000/- was withdrawn through Ex.P.37 withdrawal slip dated 28.9.1989. Ex.P.37 was filled up by the appellant. The same is reflected in the payment scroll book Ex.P.13 and ledger book Ex.P.38. But, in the pass book Ex.P.36, the entry is not available. Hence she gave complaint Ex.P.39.
[xi] P.W.13 S.Nagammal on 13.7.1988 obtained pass book Ex.P.41 after opening Savings Bank Account by giving Ex.P.40 application. According to Ex.P.42 slip, dated 11.7.89 and Ex.P.43 slip dated 3.8.89 Rs.500/- and Rs.6,000/- were deposited respectively. The above slips were filled up by the appellant. He also made entry into the pass book and also signed. The sums are not available in the ledger book Ex.P.44. Through Ex.P.45 challan Rs.7,000/- was deposited. But in the bank voucher Ex.P.46 it is written by the appellant as Rs.5,000/-. In the pass book it was written by him as Rs.7000/-. In Ledger Book Ex.P.44 the entry was made for Rs.5,000/- by himself. As per the withdrawal slip Ex.P.47 dated 16.12.89, Rs.5,000/- was withdrawn. The seal in the withdrawal slip shows the date 18.12.89. Payment scroll for the entry is Ex.P.48. P.W.13 lodged complaint Ex.P.49.
[xii] P.W.15 Karuppiah opened Savings Bank Accounts by depositing Rs.100/- and obtained Ex.P.50 to 52 pass books. As per Ex.P.52 Pass Book it is written that on 14.6.89 Rs.1,850/-. Relevant Ledger entry is Ex.P.53. In the Pass Book Ex.P 52, the appellant made credit entry on 1.11.1989 for Rs.400/- and signed. But in Ex.P.53 Ledger Book it is not credited. Hence he made complaint Ex.P.54.
[xiii] P.W.9 Ramar on 28.7.1988 obtained pass book Ex.P.56 after opening Savings Bank Account by giving Ex.P.55 application. According to Exs.P.57 to 59 withdrawal slips, dated 27.3.89, 10.6.89, 1.8.89 Rs.10,500/-, Rs.7m800/- and Rs.7,000/- were withdrawn respectively. The above withdrawal slips were filled up by the appellant. They were entered into the Payment Scrolls Ex.P.14 and 23. On 24.8.1989 by means of withdrawal slip Ex.P.60 Rs.11,000/- was withdrawn. The entry is available in the payment scroll Ex.P.14. The appellant made credit entries of Rs.7,000/- and Rs.10000/- in the pass book on 23.5.1989 and 1.6.1989 respectively. In the Ledger book accounts, Exs.P.61 and 62, Rs.2,000/- and Rs.5,000/- were credited. The relevant challans are Exs.P.63 and 64. In the pass book Ex.P.6 it is written by the appellant that on 24.7.1989 by way of Ex.P.65 challan Rs.6,000/- and on 29.9.1989 by way of Ex.P.66 were credited. But the same are not available in the ledger book Ex.P.61. Ex.P.67 to 69 are the complaints given by P.W.9. As per his version Rs.27,094/- should be in his credit. But in his account only Rs.75.60 alone is available.
[xiv] One Sankaranarayanan on 11.8.1989 gave an application Ex.P.70 and opened Savings Bank Account and got Ex.P.71 Pass Book. A sum of Rs.2,000/- was withdrawn through Ex.P.72 withdrawal slip dated 4.11.1989. The same was entered by the appellant in the Payment Scroll. But in the pass book the same is not available. According to him as per Ex.P.71 pass book Rs.2,350/- should be available. Bus as per Ex.P.75 statement of account Rs.564.74 alone is available.
[xv] P.W.16 A.Subramaniam on 6.9.88 gave application Ex.P.76 and opened savings bank account and obtained pass book Ex.P.77. The appellant has made in the pass book that on 31.10.89 Rs.1500/- and on 14.12.89 Rs.1900/- were deposited vide Ex.P.80 and 81 counterfoils. But these details are not available in the payment receipt ledger Ex.P.78 and Ledger book Ex.P.79. Hence, he made a complaint Ex.P.82.
[xvi] One Ramasamy gave application Ex.P.83 on 3.11.88 and obtained pass book Ex.P.84. All the entries in the pass book were made by the appellant. On 1.7.89 as per the withdrawal slip Ex.p.85 Rs.1,000/- was withdrawn. The withdrawal entry is found in Ex.P.14 Payment Scroll Book and in Ex.P.86 ledger, but it is not available in the pass book. Hence he gave a complaint Ex.P.87.
[xvii] P.W.5 C.Muniandi on 30.1.89 gave application Ex.P.88, opened savings bank account and obtained pass book Ex.P.89. The detail of deposit of Rs.1,000/- on 24.4.1989 under Ex.P.90 challan is available in Ex.P.91 Payment Credit Scroll Book and Ex.P.96 Ledger copy. But, on the same date, under Ex.P.93 counterfoil, Rs.3,000/- was credited and entered in the pass book Ex.P.89 by the appellant.
[xviii] P.W.10 M. Muthusamy gave application Ex.P.94 and obtained pass book Ex.P.45. On 23.10.89 Rs.500/- was credited in Ex.P.94. But the same was not entered in Ex.P.96 Ledger and Ex.P.91 Payment Credit Book. As per entries available in the Pass Book there should be a balance of Rs.1,000/-. But he has given letter Ex.P.97 that as per Ex.P.158, Statement of Account, the balance was Rs.505/-.
[xix] P.W.6 V. Balakrishnan gave application Ex.P.98 to open a bank account in the name of Murugan Koil Construction Committee and obtained pass book Ex.P.99. As per the counterfoil Ex.P.100, receipt of Rs.1,025/- was made by the appellant. But in the Pass Book Ex.P.99, Payment Receipt Scroll Ex.P.101 and Ledger Account Book Ex.P.102, the entry relating to the above payment is not available. Hence he lodged complaint Ex.P.103.
[xx] P.W.12 K. Paulraj on 25.3.1989 gave an application Ex.P.104, opened an account and obtained pass book Ex.P.105. On 25.3.1989 Rs.700/- was shown as credit in Ex.P.105. But in the Ledger book Ex.P.106 only Rs.100/- is shown as credit. Likewise in Payment Receipt Scroll Ex.P.107 also Rs.100/- is shown as credit. On 5.12.89 under Ex.P.108 withdrawal slip Rs.2,900/- was withdrawn, which are available in Exs.P.13 and P.106. But in the Pass Book Ex.P.105, Rs.2,000/- alone was credited. Hence he gave complaint Ex.P.109.
[xxi] One S. Rajeswari gave application Ex.P.110 on 5.6.89 and obtained pass book Ex.P.111. All the entries in the pass book were made by the appellant. On 1.7.89 as per the withdrawal slip Ex.p.112 Rs.700/- was withdrawn. The withdrawal entry is found in Ex.P.14 Payment Scroll Book and in Ex.P.113 ledger, but in the pass book entry the appellant has made entry that Rs.50/- has been withdrawn and signed.
[xxii] P.W.8 Muneeswari gave application Ex.P.114 on 25.11.89 to open a bank account and obtained pass book Ex.P.115. All entries in the pass book were made by the appellant. As per Ex.P.116 withdrawal slip on 31.10.1989 Rs.2,000/- was withdrawn. Withdrawal slip was written by the appellant. The withdrawal entry is available in Ex.P.13 Payment Scroll and Ex.P.117 Ledger. But in the pass book the entry is not available. On 2.9.89 Rs.500/- was deposited as per counterfoil Ex.P.118. The deposit entry is not available in Payment Receipt Register Ex.P.78 and also in Ledger Ex.P.117.
[xxiii] One M.Gurusamy gave application Ex.P.124 on 20.4.89, opened an account and obtained Ex.P.125 pass book. As per counterfoil Ex.P.126 on 8.7.89 Rs.2,200/- was received by the appellant. He also made entry in the pass book for the same. But in the statement of account Ex.P.127 and Payment Receipt Register Ex.P.128 the entry is not available.
[xxiv] P.W.2 M.Perumal on 27.6.1989 gave application Ex.P.129, opened bank account and obtained pass book Ex.P.130. As per Ex.P.131 counterfoil on 15.7.1989 Rs.5,100/- was deposited. The same was received and entry was also made in the pass book by the appellant. But in the ledger Ex.P.132, Payment Receipt Register Ex.P.91 and Ex.P.133 Bank Voucher, Rs.100/- alone credited. Though Ex.P.130 pass book shows the balance as Rs.5,150/-, as per the statement of account Rs.153.70 alone is available.
[xxv] Ex.P.135 is pass book of P.W.3 Ponnusamy. He deposited Rs.2,000/- to open bank account, as per counterfoil Ex.P.136 dated 7.11.1989. But Ex.P.137 ledger and Ex.P.91 Payment Receipt Register entries show that Rs.20/- only was deposited on the date of opening of bank account. Ex.P.138 Statement of Account also shows that Rs.20/- alone available in his account.
[xxvi] One T. Rajendran gave application Ex.P.139 on 12.7.1989,opened a bank account and obtained pass book Ex.P.140. As per withdrawal slip Ex.P.141, on 7.9.89 Rs.2,000/- was withdrawn. The same is available in Ledger Book Ex.P.142 and Payment Receipt Scroll Ex.P.13. But the pass book entry shows as Rs.3,000/- was withdrawn. As per Pass Book Ex.P.140, Rs.2,500/- is his account balance. But the Statement of Account Ex.P.143 shows only Rs.570.80 as his bank balance.
2. The investigation officer P.W.18, under the instructions of his superior, Superintendent of Police, registered a case and laid F.I.R. Ex.P.163. He took up the case for investigation, recorded statement of witnesses and seized relevant documents. He forwarded documents for the comparison of signatures and hand writings of the appellant to Madras Forensic Science Laboratory. Those documents were received by P.W.17 Hand Writing Expert under Ex.P.16 letter. After comparison and necessary examination, he has come out with a report Ex.P.162. After completion of investigation P.W.18, laid charge sheets separately for all the 15 cases and they were taken on file in C.C.Nos.17 of 1995 to 31 of 1995.
3. While the appellant was questioned under Section 313 Cr.P.C. As regards the incriminating materials available against him in the prosecution evidence, he denied complicity to the offences. He has represented before the court, that he has no authority to sign the pass book, that when a customer comes to the bank either for deposit or for withdrawal, he will not pay amount without manager's signatures in the withdrawal slip, that the pass book would bear initials of the Manager, that had his initials available in the passbook, the auditors would have found it and objected it, that numerous documents are missing, that CBI officials has made him an accused in this case describing him as an absconding appellant without due investigation, that he has studied law for three years in evening college, that even 3 pass books were given to a customer, that only one should have been given and the others were utilised as per their convenience, that the pass book containing the signatures of manager and that other officials were not before the Court.
4. The Trial Court, after analyzing the evidence on record, convicted the appellant under Sections 420 (13 counts), 409, 467 (13 counts), 468 (13 counts) 477 (A) (14 counts) 467 r/w 471 (13 counts) of I.P.C., and Section 13(1)(c) r/w 13(2) and Section 13(1)(d) r/w 13(2) (14 counts) of Prevention of Corruption Act and sentenced him to undergo R.I. for 1 year for each count and to pay a fine of Rs.1,000/- for each count and in default to undergo one year R.I. For the offence under section 420 IPC (13 counts), to undergo R.I. For 3 years and to pay a fine of Rs.4,000/- in default to undergo R.I. For 18 months for the offence under Section 409 IPC; to undergo R.I. For 2 years for each count, each offence and to pay a fine of Rs.1,000/- for each count, each offence in default to undergo R.1. For one year for each count, each offence for the offences under section 467 (13 counts), 468 (13 counts), 477 (A) (14 counts) 467 r/w 471 (13 counts); to undergo R.I.for 3 years and to pay a fine of Rs.2,000/- in default to undergo R.I.for year for the offence under Section 13(1)(c) r/w 13(2) of Prevention of Corruption Act; and to undergo R.I.for 3 years for each count and to pay fine of Rs.2,000/- for each count in default to undergo R.I.for one year for each count for the offence under section 13(1) (d) r/w 13(2)(14 counts) of the Prevention of Corruption Act and the sentences are ordered to run concurrently. Total fine amount the appellant has to pay Rs.1,00,000/- (Rupees One Lakh only). The trial court acquitted the accused in CC.No.23 of 1995 alone. Aggrieved at the conviction of 14 cases in CC.Nos.17 of 1995 to 22 of 1995 and CC.No.24 of 1995 to 31 of 1995, the appellant is before this Court by way of these 14 appeals.
Point for consideration:
5. Whether the prosecution has brought home the guilt of the accused beyond all reasonable doubt with reference to the charges framed against him in all the appeals?
Point:
6. The appellant was working as Clerk-cum-Cashier in Bank of India N.Pudupatti Branch between 3.3.1989 to 16.12.1989, who has been arrayed as 3rd accused in F.I.R. Ex.P.163. 1st accused is one K.Premachandran and 2nd accused is I.Periasamy, who were working as Branch Manager and Staff in the said branch during the relevant time. The cases originated from the oral complaint made by I. Periasamy to P.W.1, who was working as Manager in Regional Office of the Bank of India, Madurai. As per the evidence of P.W.1 even though I. Periasamy told him that the appellant was not upto the rank, he had not preferred any written complaint to the superiors. However, at the behest of P.W.1, the Zonal Office sent one P.R.Kalyanaraman for holding preliminary enquiry, who came, made an enquiry and submitted his report stating that the appellant has not credited the cash received from the customers into their respective accounts and that the entries in their pass books and bank ledgers did not tally. On seeing his report, Zonal Office directed to hold a full-
fledged enquiry. One Vivekanandan, officer of the Bank of India was deputed for further inquiry. During his enquiry, many of the customers complained that their accounts were not maintained properly and complaint was obtained from each of the customer after comparing their pass books and relevant ledger entries.
7. P.W.1 has graphically narrated the misdoings of the appellant with specific reference to the case of each of the customers by producing account opening forms, pass books, withdrawal slips and relevant ledger entries, and statement of accounts. His oral evidence would indicate that even though the appellant received amount from the customers, he filled up the withdrawal forms with his own signature and writings, but had not entered them either into the pass book or to the concerned ledger. If the prosecution is able to show that truth is available in the evidence of P.W.1, then the court could reach a conclusion that the appellant is guilty of the offences.
8. It is the foremost contention of the appellant that without the involvement of the 1st and 2nd accused, he could not misappropriate the amount, that 2nd accused is the passing officer and 1st accused would approve and cancel the relevant transaction. It is in the evidence of P.W.14 that the total strength of officials in N.Pudupatti Branch is only 3, consisting of 2 officers and one clerk. P.W.14 was acted as investigator in Regional Office of the bank at Chennai during 1988 to 1995. He would say that acting on his report Ex.P.159, departmental proceedings were initiated against all the three persons and since delinquencies were established against them, all of them were terminated from service. A suggestion was put to him in his cross examination to the effect that 1st and 2nd accused misappropriated the amount during the relevant period and taking advantage of the illness of appellant, signatures were obtained from him. But in the cross examination of P.W.1 it was suggested to him that the manager alone was responsible for the irregularities. P.W.1 further adds that cashier (appellant) was also responsible for the irregularities. He also states that the 1st accused was found guilty in advancing cattle loans on his admission and so he was dismissed from service. It is also in his evidence that without the knowledge of Manager, the customers could not deposit or withdraw amount from the bank. The evidence of P.W.1 and P.W.14 who are officials of the bank play vital role in this case.
9. Even though 1st and 2nd accused were arrayed in the F.I.R., after investigation, they were deleted from the case and charge sheet was laid only against the appellant.
10. The procedure for deposit and withdrawal is spoken by P.W.1 and P.W.14 It transpires from their evidence that if the account holder intends to withdraw amount from his account, he has to present the filled up withdrawal slip with his signature along with pass book to the ledger clerk, that he would check up the balance available in his account and issue token and thereafter the Ledger Keeper would send it to the Manager or other superior official who would verify signature, enter the amount in the payment scroll and finally the slip with pass book would return back to the cashier, who would again check up the signature of the account holder and after getting the token he would disburse the amount required. The above said procedure would show that at the time of withdrawal, the cashier plays vital role at the point of entry when the withdrawal slip is presented into the bank and the final stage of payment to the customer.
11. The evidence of P.W.1 with regard to all the cases go to the effect that the withdrawal slips in most of the cases were written by the appellant and he has made entries in the respective pass books also. But he says that as a cashier, he was not authorised to make entries in the pass book and only the Manager has to put the entries. But as per oral testimony of P.W.1, the practice was prevailing in the branch, where the appellant has also made entries.
12. P.W.1 claims that while he was working in Bank of India, Sivakasi Branch, the appellant was working under him as Clerk and hence he could identify his handwriting and signature. Pertinent it is to state that it was not denied in his cross examination nor in his response to the questions under section 313 Cr.P.C.
13. P.Ws.2 to 13, 15 and 16 are customers of the bank who say that the payments made by them were not properly credited into their accounts. The relevant entries in the ledger account book show that the balance available in their respective accounts were less than the amount which they claimed that should have been in their accounts.
14. For example, in the case of the account holder one Ramasamy, Ex.P.3 is application for opening the account and pass book issued was Ex.P.84, in which the appellant has signed in all the entries. On 1.7.1989 by means of Ex.P.85 withdrawal slip Rs.1,000/- was withdrawn and the signatures of the customer Ramasamy in both Exs.P.3 and P.85 are different as per P.W.1's evidence. Even though in Ledger account Ex.P.86 the amount was stated to have been withdrawn, it was not correspondingly entered into the pass book, that it was withdrawn.
15. In another instance, in the case of P.W.9 Ramar, he gave application for opening an account in Ex.P.55, and Ex.P.56 is the pass book issued therefor by Premachandran. Except 2 entries in the pass book other entries were written by the appellant. Rs.10,500/-, Rs.7,800/- Rs.7,000/- were withdrawn from the account on 27.3.1989, 10.6.1989 and 1.8.1989 under withdrawal slips Exs.P.57 to 59 respectively, which were filled up by the appellant and were cancelled by Periasamy and Premachandran. The above said three amounts were entered as payment out in payment scroll book Ex.Ps.14 and 23. By Ex.P.60 withdrawal slip, written by appellant, Rs.11,000/- was withdrawn on 24.8.1989 and the same is found in the payment Scroll book Ex.P.14. The appellant made entries that Rs.7,000/- Rs.10,000/- were received on 23.5.1989 and 1.6.89, who were entered into ledger accounts Ex.P.61 and 62 respectively as Rs.2,000/- and Rs.5,000/- alone. In the challans used for deposits made into the bank, Exs.P.63 and 64, were written as Rs.2,000/- and Rs.5,000/- respectively. In the pass book Ex.P.56 the appellant has made entries under his initials that on 24.7.1989 and 29.9.1989 Rs.6,000/- and Rs.18,000/- were deposited respectively. But in the ledger account Ex.P.61, those amounts were not credited. In the counterfoil of the challans above mentioned, it was written and signed by the appellant, which are Exs.P.65 and 66, as if Rs.6,000/- and Rs.18,000/- were received. But P.W.9 has lodged three complaints Exs.P.67 to 69 stating that whatever amount he deposited into the bank was not credited into his account. The above said circumstances would vividly indicate that the appellant as cashier received the amount from the account holders for deposit, filled up withdrawal slips, credited a lesser sum into the bank records and wrote a larger sum in the pass books.
16.When this Court goes through all the transactions of the bank with the customers, who have been examined before the Court and lodged complaints, it comes to light that the appellant has committed irregularities in all the cases and his acts would attract the offences under Sections 409, 420, 467, 468 and 477(A) I.P.C. It is pointed out that in the earlier paragraphs of this judgment which are available under the caption "prosecution case" the irregularities have been narrated and while this Court has carefully and cautiously gone into the relevant exhibits and oral evidence on record, it is learnt that the appellant has committed the offences. It is not out of place to mention, even though it is stated that 1st and 2nd accused were also involved in the offences, they have been deleted from the charge sheet and the charges have been framed only against the appellant.
17. P.W.17 is Senior Scientific Officer, Central Forensic Science Laboratory, Chennai, is a qualified scientist. The documents containing disputed signatures and handwritings of the appellant were referred to him to compare with his admitted signatures and handwritings and after analysing with the aid of scientific equipments, P.W.17 has submitted his report Ex.P.162. In the view of this Court, the expert evidence does not support the case of the prosecution for the reason that he has pointed that the authorship of the questioned signatures could not be connected with the writer of the standard signatures for specific reasons. He has also stated that it has not been possible to express any opinion on the rest of the questioned items on the basis of the materials on record. The standard signatures marked A1 are not consistent with the other signatures and there is over writing in one of the standard signatures and that for a thorough comparison of the questioned signatures marked Q1 to Q4 and Q9, more standard signatures of the concerned persons would be needed. He has taken into consideration the questioned signatures marked as Q5 to Q8 and Q10 to Q13 and passed the above said remarks.
18. It is settled proposition that the opinion of the handwriting expert could not form basis for the definite conclusion by the Court. The Court has to weigh the circumstances and the facts of the case and reach a conclusion independently apart from the expert opinion. It is discretion of the Court to take assistance of the expert's evidence for corroboration of a particular fact, in case, if such corroboration is needed, in the view of the Court. If the Court does not require any corroboration from other circumstances, say for example, the expert's opinion, it may decide the case on the other circumstances as evident from the documents and oral accounts of witnesses. As far as the facts of the present case are concerned, since the evidence of P.W.1 remains unshattered in his cross examination as to the identification of the hand writings, signatures and initials of the appellant, there is no embargo for this Court to place reliance upon the oral evidence of P.W.1. He claims that since the appellant was working under him, he is able to identify his handwriting and signatures.
18. Insofar as the charge under Section 13(2) r/w 13(1)(c) and 13(1)(d) of Prevention of Corruption Act are concerned, since he is a public servant, illegally abused his position as public servant, obtained for himself pecuniary advantages to the extent of the amount as mentioned in the charges, he is liable to be punished under the said provisions.
19. Learned counsel for the appellant Mr.S. Muthukrishnan would contend that inasmuch 1st and 2nd accused have been deliberately omitted from the charge sheet, even though several materials were available against them, their deletion would prejudice the appellant, that the evidence of one of the customers D.W.1 would indicate that there was no wrong on the part of the appellant, that there is no clinching proof to connect the appellant with the offences, that P.W.1 and the appellant were not in good terms during the time they have worked in Sivakasi Branch between 1989 to 1992 and P.W.1 was angry with frequent applications on sick leave of the appellant on account of his nervous problem, that P.W.1, A1 and A2 belong to the same office and association and hence P.W.1 was a biased witness, that the opinion of P.W.17 has not brought out the variations between the questioned signatures and the standard signatures, that when there is no demand, no offence under section 13(1) of the Prevention of Corruption Act would be attracted and hence the appellant has to be acquitted.
20. Contending contra, the learned Standing Counsel for the respondent Mr.Rosario Sundar Raj would argue that there are ample evidence to connect the accused with the offences, that no motive was attributed to P.W.1, that the voluminous records produced by the prosecution would candidly explain the complicity of the appellant with the crime, that the Court can reach a conclusion on account of production of the account opening forms, pass books of the account holders, withdrawal slips, ledger accounts and statement of accounts and the scrutiny of the same would depict that the appellant is the real actor of crime, that by forging the signatures of the customers in the withdrawal slips and by fabricating, falsifying bank accounts by entering lessor amount purposefully, without entering the payment made by them, the appellant has committed the offence as covered by relevant sections in I.P.C, that the detailed scientific report corroborates the evidence of P.Ws.1 to 8, 10 to 13 and 15 and 16 as to the signatures and handwritings of the appellant, that non- examination of some of the account holders is not fatal to the prosecution, since the documents pertaining to them have been produced, that even though the bank has not preferred the complaint, on the basis of the source of information, a case has been registered and as per Section 125 of the Indian Evidence Act, no police officer shall be compelled to say when he got any information as to the commission of any offence against the public and that the filling up of withdrawal slips and the actual payments made by the appellant show that he was entrusted with the properties of the bank and he has domain over the property and offence under Section 406 I.P.C. would duly be made out.
21. The learned counsel for the appellant would cite various authorities of Supreme Court and other High Courts including the ones which are not relevant to the situation, in support of his contention. He draws attention of this Court to a decision of this Court in 2004 M.L.J. (Cri.) 435 [N.S. Gnaneswaran v. State represented by the Inspector of Police SPE, CBI ACB, Chennai], in which it is held that when a case is found not to have been registered under Section 154 Cr.P.C., it is not a case registered in accordance with law and hence such a case registered, deviating from the warranting procedures contemplated under section 154 Cr.P.C., has absolutely bereft of the force of the law and the same is non est in law and therefore becomes only liable to be quashed. Section 154 Cr.P.C. Deals with information in cognizable cases which contemplates either information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant.
22. Arguing on the other side of the coin, the learned standing counsel for the respondent, placed reliance upon a decision of the Supreme Court in 2009
(ii) SCC 737 [R. Venkatakrishnan v. Central Bureau of Investigation], wherein Their Lordships have observed as under:
"The C.B.I on receipt of information had set the law in motion and it is not necessary that the complaint has to be forwarded from banks or financial institutions as to the loss of money. It is not the law that complaint petition under all circumstances must be made by the Banks and Financial Institutions whose money had been the subject matter of offence. It is also not the law that suffering of loss is a sine qua non for recording a judgment of conviction. It is now trite that criminal law can be set in motion by anybody. The prosecution was initiated on the basis of the information received by the Central Bureau of Investigation. It would be entitled to do so not only in regard to its statutory powers contained in the Delhi Special Police Act but it was also entitled to take cognizance in terms of the report submitted by `Janakiraman Committee'. The money involved in the transfer is public money belonging to Public Sector Banks."
As per the law laid down as above, it is not necessary that the law has to be set into motion on the complaints of financial institutions such as Bank and that it is punishable for the CBI to act on source information.
23. It is further contention on the side of the appellant that the informer and the investigator was the same police officer, conducive, impartial and fair investigation could not be expected from him. He garnered support from a judgment of the Supreme Court in (1996) 11 SCC 709 [Megha Singh v. State of Haryana] in which it is held that it was on his complaint a formal first information report was lodged and the case was initiated and that he being complainant should not have proceeded with the investigation of the case. In the present case, there is no question put to investigating officer as to whether he was the informant as regards the offences. He is not the first informant nor complainant. On the basis of receipt of information or on the strength of source information he had lodged F.I.R and proceeded with the investigation. Hence, the contention that the complainant and the investigator are none other than the same individual, could not be countenanced.
24. It is also argued by the appellant that on reading the First Information Report no offence would be made out and hence no charge could be framed. In AIR 1989 SC 2222 [State of U.P.through C.B.I. S.P.E., Lucknow and another v. R.K. Srivastava] the Supreme Court has observed that since the F.I.R. did not contain any definite accusation, it amounted to an abuse of the process of the Court and the criminal proceedings are liable to be quashed and if the allegations made in the F.I.R. are taken at their face value and accepted in their entirety, they do not constitute any offence and hence the criminal proceedings instituted on the basis of the aid FIR should be quashed. In Ex.P.163, F.I.R., it has been clearly mentioned that the three named accused have indulged in criminal conspiracy and falsified books of accounts and the details of such misappropriation are also attached with the F.I.R. Hence, the argument that the F.I.R. does not show any definite accusation has no legs to stand.
25. In AIR 1996 SC 64 [B.H.Narasimha Rao v. Government of Andhar Pradesh, rep.by C.B.I.] the Honourable Superme Court of India has held that when all other co-accused in a case were acquitted, the remaining accused cannot be convicted for offence under Section 120-B I.P.C. In the case on hand, firstly, there is no charge under Section 120-B I.P.C. Nextly, no trial was taken against other accused, but they had been deleted from the charges. Hence the facts in this case are distinguishable.
26. The Apex Court in AIR 1995 SC 1437 [Madhusudan Singh and another v. State of Bihar] has observed that when an accused is acquitted under Section 409 I.P.C., the conviction for the offence under Section 5(1)(c) of the Prevention of Corruption Actis not sustainable. In the present case, there is no similar charges, between the offences described under I.P.C. and P.C. Act. They are entirely different charges involving different ingredients.
27. In 1995 Crl.L.J. 4082 [State of Gujarat v. Chandubhai Ramjibhai Patel] the Gujarat High Court has held that when the accounts books were not in exclusive possession of the appellant and the handwriting of the appellant in alleged entries not proved, then there could be no conviction of the appellant. In the case on hand, the account books viz., the registered accounts of the bank were in possession of the appellant who has made entries into the same and the entries made by him have also been approved by P.W.1. Hence, the said decision is not applicable to the facts of the present case.
28. The learned counsel for the appellant also relies upon a decision of the Supreme Court in AIR 2003 SC 3714 [Kailash Kumar Sanwatia v. State of Bihar and another] in which it is held as follows:
"10. In the instant case even if it was proved as contended by learned counsel for the appellant, that money was entrusted which fact is borne out by the admitted case about missing of money from the cash counter of the bank, one factor which needs to be decided is whether the accused had dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. As presented by the prosecution, the money was taken away from the cash counter. It is not the case of prosecution that money which was given to the accused-Gautam Bose and the cash peon to obtain bank drafts was taken away by accused-Gautam Bose or the cash peon Ganaori Sao. Because of an Intervening situation, the disappearance of the cash due to theft by somebody else the bank drafts could not have been prepared and handed over to the accused. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 405 IPC or Section 409 IPC, unless misappropriation, or conversion to personal use or disposal, of property is established."
In the instant case, it has been established that the money was handed over to the appellant and from the production of documents it has been proved that there had been loss of money to the account holders. Hence, the appellant cannot take recourse to the said decision.
29. In 1978 Crl.L.J.431 [Chandrakant Vishwanth Jakkal v. The State of Maharashtra] a single judge of the Bombay High Court held that whether the offence alleged against the accused amount to offence under I.P.C., as also under the Prevention of Corruption Act, it is open to the prosecution to prosecute the accused for the offences under the general law and it is not necessary that the prosecution has to prosecute him for the offence under the provisions of Prevention of Corruption Act. No prejudice to the appellant has been indicated in the conduct of the prosecution case in this regard before this Court.
30. The learned counsel for the appellant further cites a decision of this Court in (2006) 2 MLJ (Crl) 1202 [ S.P.Meiappan and Another v. State rep. By Dy. Superintendent of Police, CBI (V& A.C.), Chennai] , wherein the learned Judge has observed that when there is no corruption involed, Section 13(1)(d) of the Act is not applicable. But in Venkatakrishnan's case (supra) the Supreme Court has observed that the ingredients in Sub-clause (iii) of S.13(1)(d) contemplate that a public servant, who, while holding office obtains for any person any valuable thing or pecuniary advantage without any public interest would be guilty of criminal misconduct. In view of the opinion of the Apex Court as stated above, the frame of the case is maintainable.
31. In AIR 1987 SC 821 [Bank of India v. Yeturi Maredi Shanker Rao and another] it is held that when the forged signature on withdrawal form is not proved to be made by accused, there cannot be a conviction. In the case on hand, the signature of the appellant on the withdrawal form showing receipt of money was proved to be made by the appellant and hence he was convicted.
32. In AIR 1972 SC 313 [Rasul Mohammed Hanif Gulandaj v. The State of Maharashtra] it is held that if the document alleged to have been falsified missing from office record, then there could be no conviction at all. In this context, P.W.1 and P.W.14 were not quizzed as to the alleged missing records. It is not the contention of the appellant too.
33. In AIR 1979 SC 1011 [Kanchansingh Dholaksingh Thakur v. State of Gujarat] the Apex Court has observed that when there is no conflict between expert witness and other witnesses, conviction cannot be sustained on the uncorroborated testimony of the handwriting expert. But here, the facts are otherwise. Even though there is conflict between the evidence of P.W.1 & 14 and the handwriting expert, there is no finding as to conviction on the basis of the expert evidence by the Court below. Further, this Court records conviction of the appellant on the strength of the evidence of P.Ws.1 and 14 and other account holders. At the cost of repetition, it is stated that no motive was attributed to them against the appellant.
34. It is well settled that in order to rely on the evidence of an expert, the Court must be fully satisfied that he is a truthful and also a reliable witness fully adept in the art of identification of hand-writing in order to opine whether the alleged hand-writing has been made by a particular person or not and where the evidence of the expert has been disbelieved by the High Court on the most material points,it is wholly unsafe to base the conviction of the appellant merely on the testimony of the expert. This Court does not place reliance upon report of handwriting expert.
35. The decision in AIR 2002 SC 2342 [Smt.Rukhsana Khtoon v. Sakhawat Hussasin and others] was concluded on the side of the appellant in which it is observed that the persons named as an appellant in FIR who are not charge sheeted, can be summoned and arraigned as appellant under Section 319 of Cr.P.C.. In this case, on the side of the appellant, the copies of the summons to A1 and A2 and the order passed by the trial Court have been produced. But they could not be located and the effort on the part of the court for examining them in vain. Section 319 Cr.P.C. reads as follows:-
"319.Power to proceed against other persons appearing to be guilty of offence. -(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2)Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3)Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4)Where the Court proceeds against any person under sub-section(1) then-
(a)the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard.
(b)subject to the provisions of clause(a) the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.
The said provision deals with the powers of the criminal court to proceed against any person for the offence, if he appears to have committed any offence.
36. As adverted to supra, the Court has taken appropriate steps to examine A1 and A2, but they could not be secured. This circumstance could not constitute a ground for acquitting the accused.
37. In 2006 Crl.L.J.4598 [State. Inspector of Police, Visakhapatnam v. Sruya Sankaram Karri] the Supreme Court has held as follows:
"The approach of the learned Special Judge, to say the least, was not correct. When a statutory functionary passes an order, that too authorizing a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in Administrative Law. The statutory functionaries are enjoined with a duty to pass written orders."
In the present case, it is not shown that the investigating officer required any authorisation from any superior officer. In this context, there is no force in the argument that he has to act on written authorisation by his superior. Investigation officer was not queried in this regard.
38. The learned counsel for the appellant has also argued that some of the account holders who are stated to have given complaints have not been examined before the Court and that there is no evidence to prove the factum of demand and hence the conviction cannot be sustained. In support of his contention, he placed reliance upon a decision of the Apex Court in (2009) 3 SCC 85 [A. Subair v. State of Kerala] in which it is held as follows:
"We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for the non- examination of the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the Court."
As far as the present case is concerned, there is no question of demand. Only if the demand is expected to be proved, then the examination of complainant would arise. In this case, even though certain accountholders have not been examined, still the documents were placed before the Court. Here, no demand is alleged which remains to be proved.
39. In 2002 Crl.L.J. 2787 [Subash Parbad Sonvane v. State of Gujarat] the Supreme Court has held as follows:
"Therefore, for convicting the person under Section 13(1)(d), there must be evidence on record that accused 'obtained' for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest."
In the present case, it has been established that the appellant has acted to obtain pecuniary advantage by illegal means by abusing his position of public servant. Hence Section 13(1)(d) of the Act, clearly made out in this case.
40. In AIR 1971 SC 520 [P.Sirjuddin v. The State of Madras] the Apex Court has observed that before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour and a first information is lodged against him there must be some suitable preliminary enquiry into the allegations by a responsible officer. In the present case, the had been two preliminary enquiries one by Kalayanaraman and another by P.W.14 and they submitted their reports, on the basis of which, the proceedings were initiated.
41. AIR 1962 SC 690 [Payare Lal v. State of Punjab] contains a discussion by the Supreme Court as follows:
"Under the Criminal Law Amendment Act, 1952, as it stood before its amendment, S.350 of the Criminal Procedure Code was not available when one Special Judge succeeded another . The successor special judge had no authority under the law to proceed with the trial of the case from the stage at which his predecessor left it,. Where the successor Judge convicts the accused under S.5(2) Prevention of Corruption Act, upon the evidence recorded by his predecessor without recalling the witnesses, the conviction could not be supported as he had not himself heard the evidence. The proceedings before him were incompetent."
In the case on hand, there is no arguments that the witnesses have to be recalled for want of incompetence of the Court.
42. The Apex Court in 1995 (3) SCC 567 [M.W. Mohiuddin v. State of Maharastra] has held that since the offence took place about 14 years back, all these years the accused has undergone the agony of criminal proceedings uptil now and he has also lost his job and has a large family to support, that it is also stated that he has become sick and infirm and he has been in jail for some time and for all these special reasons, while confirming the conviction of the accused the sentence of imprisonment is reduced to the period already undergone. Sentencing depends upon the statutory mandate as prescribed in the provisions of law under which the accused has been charged.
43. In 2000 Crl.L.J. 1882 [Ram Swaroop Rathore v. State of M.P.] a single Judge of Madhya Pradesh High Court has held that mere recovery of money from the accused is not sufficient and the demand of money which was not legal has to be proved. These points have been answered already.
44. The Apex Court has observed in AIR 1979 SC 1236 [Arjan Sing and others v. Hazara Singh] that in view of the conflicting state of evidence produced by the prosecution, it is unsafe to convict the accused of the offence of forgery. In the present case cogent materials are available to place reliance upon the evidence of the prosecution witnesses, in the light of the documents produced in support of their evidence.
45. The learned counsel for the appellant also cites AIR 1997 Crl.L.J.1448 [Guru Bipin Singh v. Chongtham Manihar Singhand another] in which it is held that if forgery goes, cheating cannot stand, and so,the complaint does not make out a case under any of the three sections viz., 420, 465 and 468 I.P.C. But in this case, all the charges have been proved inclusive of the one u/s.420 I.P.C.
46. In AIR 1987 SC 2402 [G.V. Nanjundiah v. State (Delhi Administration] Supreme Court held that the accused was honest and his service record showing him to be an officer of integrity who does not have any moveable or immovable property, the guilt of the accused has to be held as not proved since the factum of acceptance of bribe not properly established and the testimony of the material witnesses was not found trustworthy. In this case, the circumstances are different. There is no demand of bribe. Documentary evidence have divulged the guilt of the appellant.
47. The point is answered that the prosecution has established the charges framed against the appellant without any suspect of doubt.
48. A conspectus of all the materials would go to show that the appellant has misappropriated money belonging to the bank by falsifying the bank records dishonestly and fraudulently misappropriated them converting for his own use and that by illegal means, abusing his possession as a public servant, obtained for himself pecuniary advantage and hence he is punishable with the sentences as passed by the Court below.
49. In the considered view of this Court, the charges framed against the appellant have been established, proved beyond all reasonable doubt. There is no need to disturb the conviction and sentence recorded by the trial Court which are free from infirmity , deserving to be confirmed and they are accordingly confirmed. All the appeals have to fail.
49. In the result, all the appeals in C.A.Nos.72 to 85 of 1998 are dismissed. The Trial Court is directed to issue warrant to commit the accused to prison to suffer the remaining portion of sentence.
ggs To
1. The Special Judge for CBI Cases, Madurai,
2. Special Public Prosecutor for CBI cases, Madurai