Karnataka High Court
H Zainuddin S/O Hassan Musaliar vs State By Inspector Of Police on 18 March, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF MARCH 2013
BEFORE
HON'BLE MR.JUSTICE V.SURI APPA RAO
CRIMINAL APPEAL NO.29/2009
BETWEEN:
H.Zainuddin
S/o Hassan Musaliar
Aged about 62 years
R/at Moliar Manzil
Darga Road, Post Mulki
Dakshina Kannada. ... Appellant
(By Sri Bipin Hegde, Adv.)
AND:
State by Inspector of Police
CBI:SPE Division
No.37, Bellary Road
Gangenahalli
Bangalore
Represented by
State Public Prosecutor. ...Respondent
(By Sri P.Prasanna Kumar, Adv.)
This Crl.A. filed under Section 374(2) Cr.P.C.
prays that this Court be pleased to set aside the
conviction and sentence dated 18.12.2008 passed by
the XXXII Addl. City Civil and Session Judge and Spl.
Judge for CBI cases, Bangalore in Spl.C.C.No.31/2004 -
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convicting the appellant/accused for the offence P/U/S
420, 468, 477A of IPC and Section 13(2) r/w Section
13(1) (d) of prevention of corruption Act, 1988, and
sentencing him to undergo R I for 2 years and to pay
fine of Rs.2000/- and I D he shall undergo S I for 1
month, for the offence P/U/S 420 of IPC and further
undergo R I for 2 years ad to pay fine of Rs.2,000/- and
I D he shall undergo S.I for 1 month for the offence
P/U/S 468 of IPC and further sentenced to undergo R I
for 2 years and to pay fine of Rs.2,000/- and I.D he
shall undergo S.I for 1 month, for the offence P/U/S
477A of IPC and further sentenced to undergo R.I for 2
years and to pay fine of Rs.2,000 and I.D he shall
undergo S.I for 1 month for the offence P/U/S 13(2) r/w
Section 13(1) (d) of the PC Act 1988, the sentence of
imprisonment shall run concurrently.
This Crl.A. coming on for hearing this day, the Court
delivered the following: -
JUDGMENT
This appeal is directed against the judgment and order of conviction and sentence dated 18.12.2008 passed in Spl.C.C.No.31/2004 on the file of the XXXII Addl. City Civil and Sessions Judge and Special Judge for C.B.I. cases, Bangalore, whereby the appellant was found guilty for the offences punishable under Sections 420, 468, 477A of IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and he was -3- sentenced to undergo rigorous imprisonment for two years for each offence and fine of Rs.2,000/- for each offence in default of payment of fine, to undergo simple imprisonment for one month.
2. Aggrieved by the judgment of conviction and sentence passed against him, the appellant who is accused No.1 before the Trial Court has filed this appeal.
3. The prosecution case in brief is as follows:
The appellant while working as Branch Manager, Syndicate Bank, Jalsur Branch, during the period from July 1986 to March 1992, entered into criminal conspiracy with accused No.2 K.Abdulla and others to cheat the bank and to cause wrongly gain for himself or for others. In furtherance of the conspiracy he dishonestly and fraudulently transferred funds from various NRE and S.B.Accounts maintained by the account holders in the branch to the fictitious Savings -4- Bank accounts got opened by him and withdrew the amount by using cheques from the said fictitious accounts.
4. On 05.09.1991 the appellant dishonestly and fraudulently opened fictitious accounts bearing Nos.7217 and 7218 in the name of A.M.Mohammed and P.Abdul Rahaman on his own introduction and collected cheque book on 28.09.1991 and dishonestly and fraudulently opened fictitious bank accounts bearing Nos.7245 and 7246 in the name of K.Razak and one B.K.Reheman on his own introduction and induced one M.P.Ibrahim who maintained S.B. account No.6521 and managed to obtain two blank signed cheques from him in the guise of using them for crediting the proceeds of a clearing cheque entrusted with him by the said M.P.Ibrahim. On 14.01.1992 he fraudulently and dishonestly by abusing his official position transferred an amount of Rs.1,00,000/- from NRE S.B. A/c No.31 of one Sri Adkar Mohammed Kunhi and transferred -5- Rs.1,50,000/- from NRE S.B. Account No.36 of N.Mohammed Kunhi and Rs.1,00,000/- from S.B.Account No.2869 of one P.Abdullah Kunhi by preparing debit slips on his own and without any authorization from the above account holders and transferred these funds to the fictitious S.B. A/c No.7217 opened by him and thereafter withdrew the said amount on the same day by using the cheque bearing No.653591.
5. On 14.01.1992 he dishonestly obtained a cheque from the Managing partner of M/s.Chappakkal Cashew Industries for Rs.3,50,000/- with the promise of remitting back the amount within a fortnight and transferred the amount to the fictitious S.B. Account bearing No.7218 opened by him and withdrew the proceeds by using the cheque bearing No.653601.
6. On 14.01.1992 he dishonestly and fraudulently debited Rs.75,000/- from NRE account No.128 of Sri -6- K.Hamza and Rs.45,000/- from NRE Account No.134 of Sri M.Hassainar, by preparing debit slips without any authorization from the said account holders and transferred the proceeds to the fictitious S.B. Account No.7245 opened by him and withdrew the amount of Rs.1,20,000/- by utilizing the cheque bearing No.653671.
7. On the same day he dishonestly and fraudulently transferred an amount of Rs.80,000/- from NRE Account No.116 of one S.Abdul Khader to the fictitious S.B. Account No.7246 got opened by him in the name of S.K.Rahaman and withdrew the said amount by using cheque bearing No.653681 and utilized the amounts so withdrawn to purchase a demand draft for Rs.8.55 lakhs in favour of 'Plantation Corporation of Kerala' to enable accused No.2 K.Abdulla to present the said demand draft during the auction of estates for the 1992 season. Subsequently on -7- 03.02.1992 he dishonestly and fraudulently transferred an amount of Rs.5,000/- from NRE Account No.84 of one Mohammed Ibrahim, Rs.15,000/- from NRE account No.134 of one M.Hassainar and Rs.30,000/- from S.B. Account No.1037 of one S.Mohammed, without any authorisation from the said account holders to the fictitious S.B.Account No.7217 got opened by him in the name of A.N.Mohammed and withdrew the said amount of Rs.50,000/- by using cheque No.653954. On the same day he fraudulently and dishonestly transferred an amount of Rs.1,25,000/- from the SOD account No.7/91 of M/s.Chappakkal Cashew Industries, Rs.20,000/- from NRE S.B.Account No.136 of one B.A.Ibrahim, Rs.35,000/- from NRE S.B. A/c No.129 of one K.A.Ibrahim, Rs.20,000/- from NRE S.B. A/c No.128 of Sri K.Hamza, Rs.25,000/- from NRE Account No.29 of Adkar Yousuf, Rs.20,000/- from NRE Account No.58 of K.A.Abdulla, Rs.20,000/- from NRE Account No.60 of M.P.Ibrahim, Rs.20,000/- from NRE -8- Account A/c No.75 of Bayal Mohammed Kunhi, Rs.30,000/- NRE Account No.111 of M.Mohammed Kunhi, Rs.30,000/- from NRE Account No.112 of M.A.Ibrahim, Rs.35,000/- from NRE Account No.115 of one P.M.Abdulla without their consent and authority by preparing debit vouchers, credited it to the S.B.account No.6521 of M.P.Ibrahim without his knowledge and consent and withdrew Rs.4,00,000/- from the said account by using the cheques bearing Nos.650835 and 650836 for Rs.2,00,000/- each which he had obtained earlier by deceiving M.P.Ibrahim after remitting Rs.20,000/- into the said account and that the said total amount of Rs.4,50,000/-, he purchased three demand drafts on Kasargod Branch, which included a draft in favour of accused No.2 K.Abdulla for Rs.1,50,000/- which was encashed by accused No.2 through Syndicate Bank, Kasargod Branch. -9-
8. On 13.02.1992 the appellant fraudulently and dishonestly transferred an amount of Rs.25,000/- from S.B.Account No.3066 of Sri G.M.Ibrahim Kunhi, Rs.70,000/- from NRE Account No.104 of M.M.Abbas without his consent, knowledge and authority and credited the proceeds to the fictitious S.B. A/c No.7218 opened by him in the name of Sri P.Abdul Rehaman and thereafter he remitted an amount of Rs.5,000/- by cash to the S.B. a/c No.7218 and withdrew the amount of Rs.1,00,000/- by using cheque No.653602.
9. On the same day, that is on 13.02.1992 accused No.1 fraudulently and dishonestly withdrew an amount of Rs.15,000/- from SOD Account No.7/91 of M/s.Chappakal Cashew Industries by preparing a debit slip without the knowledge, consent and authorization of the account holder. Subsequently, on 18.02.1992 he fraudulently and dishonestly transferred an amount of Rs.95,000/- from the S.B.Account No.6287 of Sri Nissar
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Ahmed without his knowledge, consent or authority to the fictitious S.B.account No.7218 got opened by him in the name of Sri P.Abdul Rehaman and withdrew Rs.1,00,000/- using the cheque bearing No.653603 after remitting a sum of Rs.5,000/- and on 05.09.1991 he fraudulently and dishonestly transferred an amount of Rs.1,00,000/- from NRE S.B.Account No.26 of Sri P.Abdulla to S.B.Account No.2909 of A.N.Abdulla maintained with the Branch and withdrew the said amount without the knowledge, consent of the account holder.
10. The prosecution therefore alleged that by the above transactions the appellant and accused No.2 committed offences under Section 120B read with Sections 420, 468, 471 IPC and Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
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11. After filing of the charge sheet it is reported that accused No.2 died and therefore, the case against accused No.2 is abated.
12. The Trial Court framed charges under Section 120B r/w Sections 477A, 420, 468, 471 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act against the appellant i.e., accused No.1, and was read over and explained to the accused, for which the accused pleaded not guilty and claimed to be tried.
13. Thereupon in order to substantiate the charges leveled against the appellant, the prosecution examined PWs.1 to 28 and relied upon Exs.P1 to P187. The defence got marked Exs.D1 to D5, performance appraisals and letter dated 19.03.1993.
14. Considering the oral and documentary evidence particularly basing on the evidence of account
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holders and the transactions of Syndicate Bank, Jalsur Branch, D.K.District, the Trial Court found the appellant guilty of the offences under Sections 420, 468, 477A IPC and Section 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 and passed the above order of conviction and sentence.
15. The appellant has filed this appeal challenging the order of conviction and sentence passed against him mainly on the ground that there is no complaint by the aggrieved persons or affected persons against the appellant. The appellant was not given reasonable opportunity to cross-examine the witnesses produced by the prosecution and also on the ground that the ingredients of the offences charged have not been proved by the prosecution beyond reasonable doubt.
16. Learned Counsel for the appellant submitted that there is no complaint by the NREs from whose account some amounts were transferred to the
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S.B.Accounts of some of the witnesses. There is no evidence on record to prove that the appellant got opened the fictitious accounts of PWs.3 and 4. On examination by the prosecution PWs.3 and 4 have clearly stated in their evidence that they have opened the accounts on their own and having accepted the evidence of PWs.3 and 4 the Trial Court was not justified in convicting the accused for the offences under Sections 420, 468 and 477A of IPC. It is further contended that when the accounts opened by PWs.3 and 4 are not found to be fictitious accounts, the question of transferring the amounts from NRE accounts to the account of PWs.3 and 4 does not arise.
17. Learned Counsel for the appellant further contended that there cannot be one charge for all the transactions. Therefore under the provisions of Section 218 of Cr.P.C. the charge framed by the Trial Court is defective, hence the conviction recorded by the Trial
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Court is liable to be set aside. It is further submitted that the prosecution examined PWs.8, 12 and 17 to prove that some amounts were transferred from their accounts to the accounts of one M.P.Ibrahim and one Razak. Though M.P.Ibrahim was cited as CW22 the prosecution has not chosen to examine him to prove the alleged transaction and that another person Razak was not at all cited by the prosecution as witness. It is further submitted that there is no charge for obtaining demand draft for Rs.8,55,000/- after drawing the amounts from the fictitious accounts to enable accused No.2 K.A.Abdulla to present the said demand draft during the auction of the estates for the year 1992 season.
18. The learned counsel for the appellant submitted that the Trial Court framed charge where money has been transferred to fictitious accounts of several persons, but charge is framed only in respect of
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the accounts of PW-8, 12 and 17 contrary to provisions of Section 218 of Cr.P.C. Lastly, it is submitted that Ex.P-21 sanction order issued by PW-5 is not a valid sanction order and PW-5 is not the competent authority to sign the order for the prosecution of appellant. In support of his contention, the learned counsel for the appellant placed reliance on the decision of the Hon'ble Supreme Court in the case of State of Punjab and another v/s Rajesh Syal in Appeal (Crl).1037/2002 on the file of Hon'ble Supreme Court of India wherein the Supreme Court has observed as follows :
"Even Section 220 of Cr.P.C does not help the respondent as that applies where any one series of acts are so connected together as to form the same transaction and where more than one offence is committed, there can be a joint trial. In the present case, different people have alleged to have been defrauded by the respondent and the company and therefore each offence is a distinct one and cannot be
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regarded as constituting a single series of facts/transaction".
19. In the instant case, the prosecution alleges that the appellant being the Manager of the bank has opened fictitious accounts in the names of some persons and got transferred some amounts from the NRE accounts to their accounts and withdrew lumpsum amounts. All the transactions have been taken place in Jalsoor Branch of Syndicate Bank, where the appellant was working as Manager of the bank from the period 1986 to 1992. Therefore, the transactions can be regarded as series of transactions to defraud the financial positions of the bank and for wrongful gain with dishonest and fraudulent intention and therefore, the decision rendered by the learned counsel for the appellant is not applicable to the facts of this case.
20. The learned counsel for the respondent submitted that the prosecution examined the account
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holders PW-3, 4 and others and they have stated in the evidence that they have voluntarily opened the accounts in the bank in which the appellant was the manager. They stated that they do not know about the subsequent transactions maintained by the bank and they have not given any instructions to the Branch Manager-appellant or any person to transfer the amount from their accounts into is account and except depositing some amount at the time of opening savings bank account, Most of the account holders examined by the prosecution have not operated the back accounts and that the subsequent transactions in respect of savings bank accounts are without their knowledge and consent. The learned counsel for the respondent submitted that the prosecution has produced all the relevant documents and fraudulent transactions made by the appellant conspiring with accused No.2 and examined the witnesses connected to the fraudulent transactions made by the appellant, being the Manager
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of the bank. The Trial Court has considered the entire evidence on record and rightly came to the conclusion that the appellant is guilty for the offence for which he was charged and that there are no grounds to interfere with the findings of the Trial Court which was based on the oral and documentary evidence produced by the prosecution. In support of his contention, he has placed reliance on the decision of this Court in the case of State of Karnataka v/s Nagappa reported in ILR 1995 KAR 1361 wherein this Court has held that "Section 220: Applicability and purports - Not controlled by expression "not exceeding three". In Section 219: offences in course of same transaction may be tried together through more than three in number & extend over one year"
21. Relying on the above decision, the learned counsel for the respondent submitted that the appellant being the Manager of the bank got opened fictitious
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accounts and prepared false debit vouchers and credited the amounts to the fictitious accounts of various persons maintained in the bank without the knowledge or consent of the account holders. He made several transactions in the name of the fictitious account holders without their content and that the amounts were withdrawn from the NRE accounts without their knowledge and got transferred to the fictitious accounts. All the transactions are series of transactions with the main object of dishonest and with fraudulent intention. Therefore, the charge framed against the accused are proper and are not defective. The learned counsel for the respondent further places reliance in the case of Rafiq Ahmad alias Rafi v/s State of Uttar Pradesh reported in (2011) 3 Supreme Court Cases (Cri) 498 wherein it has held as follows:
"When charge for a major offence not made out, conviction for a minor cognate offence, even in absence of a charge, reiterated, can be sustained - If accused is
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charged with a grave offence but same is not established on merits or for a default of technical nature, he can still be convicted and punished for commission of a less grave offence without altering the charge, provided the lesser offence is of cognate nature and its ingredients are independently proved beyond reasonable doubt, accused does not suffer any prejudice and it does not result in failure of justice."
22. Further, the learned counsel for the respondent has placed reliance on the Division Bench judgment of this Court in the case of M.S.Sheshappa v/s the State of Karnataka reported in ILR 1994 KAR 2089, wherein, this Court held that "Section 218 of the Cr.P.C. lays down that for every distinct offence of which any person is accused there shall be separate charge and every such charge shall be tried separately. Section 219 states that when a person is accused of more offences than one of the same kind committed within a year, he may be charged with and tried at one trial for
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any number of them not exceeding three. Section 220 however provides that if in one transaction, more offences than one are committed by the same person, he may be charge with and tried at one trial for every such offence."
23. The learned Counsel for the respondent submitted that there are no irregularities in obtaining sanction for prosecution of the appellant. Even if there is irregularity it is not fatal unless it has occasioned in the failure of justice. He has relied on the decision of the Hon'ble Supreme Court in the case of Paul Varghese Vs. State of Kerala and Another reported in (2009) 1 SCC (Cri) 953, wherein it is held the effect of Section 19(3) and (4) of Prevention of Corruption Act, 1988 is of considerable significance. In Section 19(3) the stress is on "failure of justice" and that too "in the opinion of the court". In Section 19(4), the stress is on the rising plea at appropriate time. Significantly, the
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"failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is not considered fatal unless it has resulted in failure of justice or failure of justice has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of the jurisdiction. Section 19(3)(c) reduces the rigour of prohibition.
24. In the case of CENTRAL BUREAU OF INVESTIGATION VS. V.K.SEHGAL AND ANOTHER reported in 1999 SCC (Cri) 1494, the Hon'ble Supreme Court held, prosecution under Section 161 IPC and Section 5(2) of Prevention of Corruption Act, 1947 continuing by virtue of Section 30(2) of Prevention of Corruption Act, 1988 and ultimately ending in conviction. In such a case, in view of Sections 19(3)(a) and 27 of the 1988 Act, held, the conviction could not be altered or reversed by the appellate court on the
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ground of even absence of sanction much less on the ground of incompetent sanction.
25. In view of the above decisions, sanction order issued by PW5 can be treated as valid.
26. In the instant case, the prosecution filed charge sheet against the appellant and accused No.2 for the offence punishable under Sections 120B r/w 420, 468, 471 of IPC and Section 13 (1)(d) and 13 (2) of Prevention of Corruption Act alleging that while the appellant was working as the Branch Manager in the Syndicate Bank, he opened fictitious accounts in the name of fictitious persons and fabricated cash vouchers and withdrew the same by forging the signatures and produced the false documents as genuine. Though it is alleged that the appellant opened various fictitious accounts and debited some amounts from the NRE accounts without their authorization and consent and transferred amounts to the fictitious accounts and later
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withdrew the amounts, these are the series of acts committed by accused No.1-appellant with an intention to withdraw the amounts. Though more offences than one are committed by accused No.1, it can be charged for every such offence. The appellant has not produced any evidence to prove that no prejudice is caused to the appellant during investigation and trial. The plea of the prejudice caused to the accused must be examined with that of violation. As seen from the charges against the appellant, it is observed that no prejudice is caused to the accused and he was given ample opportunity to cross examine all the witnesses produced by the prosecution to prove the fictitious transactions in fictitious accounts got opened by him, while he was working as Manager of the bank.
27. The prosecution has examined PW-3, A.M.Mohammed to prove that the appellant opened the fictitious accounts in his name and got the amounts
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transferred from NRE accounts to the fictitious accounts without their consent. The evidence of PW-3 has stated that he was having account in SBM in Sulia. Accused was the Manager of the Syndicate Bank, Jalsoor branch and requested him to open an account in his branch. As he was having a cash of Rs.1,00,000/- for 6 months he opened an account in the said branch of the accused with initial deposit of Rs.100/- . He was also issued with cheque books, he issued only 2 cheques for the purpose of transactions. After the expiry of 6 months period, he received the entire amount deposited by him. He further stated that he has not given any instructions to P.Abdull Kunhi to transfer Rs.3,50,000/- to his account. He also stated that he has not deposited Rs.3,50,000/- at any time in his account except depositing Rs.1,00,000/- and he further stated that he has not purchased any DDs from the Jalsoor Branch in favour of "Plantation Corporation of Kerala on Kasarugodu as he was not having any transaction with
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accused No.2 K. Abdulla of Adur village. He has also stated that he has not deposited Rs.50,000/- into his account by transfer from S.B.A/c.1037 in the name of S.Mohan and he do not know Sri S.Mohan, Mohammed Ibrahim and S.Haseena, who have got NRE accounts in the branch. He has further stated in his evidence that two cheques bearing Nos.653591 and 653594 dated 14.1.1992 and 3.2.1992 for a sum of Rs.3,50,000/- and Rs.50,000/- respectively are not issued by him and signatures found on the cheques do not belong to him.
28. PW-4, P.Abdul Rehaman also stated that in his evidence that the appellant requested him to open an account and as per his request, he opened an account in his branch and kept Rs.1,00,000/- as FD for a period of 6 months with the Syndicate Bank, Jalsoor Branch. He also opened another SB Account by paying initial deposit of Rs.100/- and issued 3 cheques to some other person as he was unable to go to the bank to
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withdraw the amount, he has signed cheques Ex.P-15 and handed over the same to some other person. He states that Cheques at Ex.P-17 to 19 to the tune of Rs.5,50,000/- are not issued by him and he has received only Rs.1,00,000/- towards FD amount deposited by him and that he has no knowledge of the transactions with regard to Rs.3,50,000/-, Rs.1,00,000/- and Rs.1,00,000/- pertaining to his S.B.A/c No.7218. His evidence clearly shows that except Rs.1,00,000/- towards initial deposit in S.B.A/c 7218, he has not drawn any amount and he came to know about the transactions of Rs.3,50,000/- and Rs.2,00,000/- only when he was examined by the officials of CBI. He further stated in the evidence that he is not having any business transaction with Sri G.M.Ibrahim Kunhi, B.M.Abbas, Nazeer Ahamed and NRE account holders.
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29. The prosecution examined PW-1-Govinda Naik, then Manager of the Syndicate Bank to prove that the accused opened fictitious accounts and transferred amount to SB accounts of fictitious persons. His evidence reveals that on 24.2.1992, one Mr.Abdulla Kunhi came to his branch for withdrawal of Rs.18,000/- from his account and after verifying his ledger from the clerk, the clerk informed that there is no sufficient balance in his account. Then the account holder informed that he was having sufficient balance he has not issued any cheques and has not withdrawn any amount. Then, he verified the ledger and found that there was cash credit of Rs.1,00,000/- from his account on 11.1.1992. Subsequently, on 14.1.1992. Rs.1,00,000/- was transferred from the said account to S.B. A/c 7217 of one Mr.A.M.Mohammed based on a debit voucher prepared by the accused, who was the Branch Manager at that time. He identified the signature and debit vouchers transferred to the account
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of A.M.Mohammed. His evidence further showed that another account holder by name Vailaya came to him and told that the accused has withdrawn from his account unauthorizedly without his knowledge and subsequently, he has substituted a cheque to the Manager replacing the withdrawal at the request of the accused. After coming to know the said fact of unauthorized withdrawal of the amounts of various accounts by the accused, reported the matter to the superior officers. The evidence further indicates that one G.Ibrahim came and orally complained that an amount of Rs.2,50,000/- has been unauthorisedly taken from his deposit account through LD. He gave written complaint to the Vigilance officer, who visited the branch. PW-1 in his evidence has clearly stated about the transactions, debit vouchers prepared by the accused in his own handwriting and transferred amounts from NRE accounts to other accounts. His evidence further indicates that an application for DD
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dated 3.2.1992 for a sum of Rs.1,50,000/- favouring K.Abdulla (A2) was prepared by the accused in his own handwriting except signature of the A2 and in pursuance of application, DD was issued on 3.2.1992 in favour of K.Abdulla. Likewise, PW-1 has stated in his evidence that other DDs were also prepared by the accused except signature of the applicants. The contents of the application are in the handwriting of the accused and bears his signature and they are marked as Ex.P-8(a), 8(b), 9(a), 9(b), 10(a) and 10(b). Applications are marked as Ex.P-3, 5, 7 and 9.
30. The prosecution examined PW-2, who also working as Assistant Manager in Syndicate Bank, Jalsoor Branch during the period when the accused was working as Branch Manager. He has stated in his evidence that if any withdrawals or transfer of amounts has to be made from one account to the another account, it should be only through cheque or letter of
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authorization issued by the account holder. According to him, one account holder visited the branch in the month of February 1992 for withdrawal of the cash from his account and he was informed by the counter clerk that there is no balance in his account. The account holder picked up quarrel with the counter clerk that he is having sufficient funds and not issued any cheque and not withdrawn any amount. Therefore, himself and PW-1 went to the counter and verified the ledger and found that there is no balance in the account of the account holder, some amounts have been withdrawn by way of transfer to other account prepared by A1. The same was informed to the account holder for which he has relied that he has not given any instructions for A-1 and after verification, he noticed that no such authorization was given to the account holder for transfer of the amount and there was slip of authority given by the account holder. Later some other account holders came and complained the same to the higher
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officials. He has further stated in the evidence that Vailaya, who is one of the account holder that he has not authorized the manager for withdrawal of the cash of Rs.2,00,000/-. The same was informed to the Vigilance Officers. Likewise another account holder Nissar Ahamed also complained to the vigilance officer.
31. The prosecution examined PW-7-K.M.Abdul Khader who is having NRE account in the Syndicate Bank, Jalsoor to prove that Rs.1,00,000/- withdrawn by the appellant from his account without his consent. PW- 7 sold jeep bearing TTX 7287 for a sum of Rs.1,50,000/- to A.V.Ali and paid the advance of Rs.50,000/-. The said vehicle was transferred in his name after 6 months and he was informed by Ali that he will remit the sale consideration in his account in Jalsoor Branch. So saying, he took his account number after sometime, he informed PW-7 that he has remitted the said amount into his account. He enquired the same
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with the accused, the accused informed him that the amount has been credited to his account. He had given a cheque in the name of his brother and that has been handed over to the accused. After accused left the bank, my brother told that the amount of sale was not paid to him even though it is mentioned in the pass book. The sale consideration amount of Rs.1,20,000/- was also received by the accused. The sale consideration of the jeep was given to the manager by the purchaser, Ali and he has not given any cheque for withdrawal of the amount. Subsequently, PW-1 on verification came to know that Rs.1,00,000- is not available in his account.
32. PW-8, is the Managing Partner of Chappakal Cashew Industries, Galimukka, Puttur. His evidence shows that in the name of the company, they are having current account and SOD account in the Syndicate Bank, Jalsoor Branch, limit of SOD was Rs.3,50,000/-. On 14.1.1992, when he had been to the bank for taking
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Rs.3,50,000/-, A1 who was working as Branch Manager informed him that he wanted money urgently on the condition that he would remit the same in his account without there being any delay. Accordingly, he signed the vouchers and money was taken by A1. After some days, Rs.3,50,000/- was credited to his account. Subsequently, on 13.2.1992, when he had been to the bank for withdrawal with two cheques of Rs.1,25,000/- and another for Rs.15,000/- he got updated his pass book and came to know that Rs.1,40,000/- was withdrawn from his account without consent and knowledge. He had not authorized A-1 for withdrawal of the same and he has also not issued any cheque or withdrawal slip in favour of the accused or anybody else for withdrawal of Rs.1,40,000/-. He also stated that he do not know Abdul Rahaman he was not having any transactions with him but as per Ex.P-27 Challan amount of Rs.3,50,000/- was credited to the SB account No.7218 of P.Abdul Rahaman from his account
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without his knowledge and he also stated that the said transaction was done without his knowledge and authority. He further stated that subsequently on 3.2.1992 an amount of Rs.1,25,000/- was transferred from his account to the SB A/c No.6521 for which also he has not authorized A1 to transfer the said amount from his account. He has also stated that he has not received any amount mentioned in the cheque for Rs.15,000/-. His evidence further indicates that as per the transaction slip dated 3.2.1992, an amount of Rs.1,25,000/- has been transferred to SB account No.6521 for which he has not authorized A1 to transfer the amount from his account.
33. PW-9, was working as Special Assistant in the Syndicate Bank, Jalsoor Branch when the appellant was working as branch Manager. According to him, he was having power to pass transfer vouches and clearing vouchers upto Rs.50,000/- and cash vouchers upto
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Rs.20,000/-. He has stated that the amount can be withdrawn by the customers by cheques or through withdrawal slips or by written instructions or authority, amounts can be transferred by transfer challans. According to him, there were about 150 NREs SB accounts in the branch. Out of which, 50% of the accounts were in operation and the remaining were not in operation. In NRE account, usually amounts will be received from the foreign countries by DDs or foreign instruments. After receipt of the same, it will be sent for collection. If any written instructions are given to the managers for the purpose of authorizing to transfer the funds from their accounts to another account, the said authorization will be kept in slip bundles. Thereafter, it will be verified and then the amount will be transferred. But as per NRE SB account No.29-Adkar Yusuf, a debit slip dated 3.2.1992 for Rs.25,000/- is prepared by A1 in his handwriting and he has signed as authorized signatory. The said amount was debited from the said
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account and credited to the account of M.P.Ibrahim. Likewise, transfer voucher dated 3.2.1992 for Rs.20,000/- marked as Ex.P-38 was also prepared by A1 in his handwriting. The said amount Ex.P-38 was transferred to the SB account M.P.Ibrahim vide A/c No.6521 from the NRE SB account No.60. Likewise some more amounts were transferred to the NRE accounts to the account of M.P.Ibrahim in Ex.P-39, 40, 41, 42. His further evidence reveals that all the transfer vouchers are in the hand writing of the appellant. He further stated that amounts covered under Ex.P-39 to 42 are transferred from NRE accounts to the account of Ibrahim without the written slip or the authorization of the NRE account holders.
34. PW9 further stated that Ex.P42 is prepared by accused No.1 in his hand writing. Ex.P42(a) is his signature. As per Ex.P42 an amount of Rs.20,000/- has been credited to the account of M.P.Ibrahim vide
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A/c No.6521. He further stated that Ex.P43 is another credit slip prepared by accused No.1 in his own hand writing and there is no written slip or authorization by the account holder to transfer the said amount to the A/c No.6521.
35. On 03.02.1992 accused No.1 prepared Ex.P46 and Ex.P46(a) is the signature of accused No.1. As per Ex.P46 an amount of Rs.5,000/- is credited to S.B. A/c No.7217 of A.M.Mohammed, for which also there is no written slip or authorization by the account holder to transfer the amount of Rs.5,000/- to the S/B A/c No.7217 of A.M.Mohammed. As per Ex.P50 there is credit entry for having credited an amount of Rs.5,000/- on the basis of debit voucher Ex.P46. Though in Ex.P46 it is mentioned that the transfer has been done as per the instructions of the account holder, but in fact, no such instructions are given by the account holder. On the same day an amount of Rs.30,000/- has been
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debited from the NRE S.B. A/c No.111 of M.Mohammed Kunhi to S.B. A/c No.6521 of M.P.Ibrahim at Ex.P51, which was prepared by accused No.1 in his own handwriting. Ex.P51(a) is the signature of accused No.1.
36. Ex.P52 credit slip is also prepared by accused No.1 in his own hand writing, for which also there is no written slip or authorization by the account holder to transfer the amount to the S.B. A/c of M.P.Ibrahim i.e., A/c No.6521. The entries at Ex.P53(a) and P36(d) are prepared by one K.R.Shenoy and that PW9 also put initials for having verified the entries. Likewise Ex.P55 is prepared debit slip is prepared by accused No.1 in his own hand writing and signed by accused No.1 at Ex.P55(a) for having credited an amount of Rs.30,000/- to the S.B. A/c No.6521 of M.P.Ibrahim as per Ex.P55. Ex.P56 credit slip is written in the hand writing of accused No.1 without any written slip or authorization
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by the account holder to transfer the amount to the S.B.A/c No.6521.
37. PW9 has further stated in his evidence that on the same day i.e., on 03.02.1992 an amount of Rs.35,000/- is debited from the NRE S.B.A/c No.115 of P.M.Abdulla to S.B. A/c No.6521 of M.P.Ibrahim and Ex.P59 is prepared and signed by accused No.1 in his own handwriting at Ex.P59(a). Ex.P59 is the relevant entry. Ex.P60 is the credit slip prepared by accused No.1 in his own handwriting without written slip or authorization by the account holder to transfer the amount to the account of M.P.Ibrahim.
38. PW9 also further stated in his evidence that on 14.01.1992 an amount of Rs.75,000/- was debited from NRE S.B. A/c No.128 of K.Hamza to the S.B.Account No.7245 of A.Razak under Ex.P63 entry prepared by accused No.1 in his own hand writing and his signature is at Ex.P63(a). The credit slip Ex.P64 dated
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14.01.1992 for Rs.75,000/- is prepared by accused No.1 in his own hand writing. Ex.P65(a) is the relevant entry. Both the entries are prepared by one K.R.Shenoy. Though there is entry in Ex.P63 to the effect that the said transfer is done as per the authorization letter dated 14.01.1992, but in fact no such authorization letter is given by the account holder.
39. Likewise on the same day i.e., on 03.02.1992 an amount of Rs.20,000/- has been credited to the S.B. A/c No.6521 of M.P.Ibrahim from the NRE S.B.A/c No.128 of K.Hamza. The entries are prepared by accused No.1 in his own handwriting when the written slip or authorization by the account holder. It is also in his evidence that on 03.02.1992 an amount of Rs.35,000/- has been debited from the NRE S.B.A/c No.129 of Kunhi Ahamed Ibrahim to the S.B.A/c No.6521 of M.P.Ibrahim as per Ex.P70 prepared by accused No.1 in his own handwriting and signed by him
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at Ex.P70(a) without any written slip or authorization by the account holder.
40. On 03.02.1992 an amount of Rs.15,000/- has been debited from the NRE S.B. A/c No.134 of M.Hassainar to the S.B.A/c No.7217 of A.M.Mohammed under Ex.P74 prepared by accused No.1 and his signature is at Ex.P74(a).
41. The evidence of PW9 further indicates that on 14.01.1992 an amount of Rs.45,000/- was debited from the NRE S.B. A/c No.134 of M.Hassainar to S.B. A/c No.7245 of A.Razak under Ex.P78 prepared by accused No.1 in his handwriting. The signature of accused No.1 is marked as Ex.P78(a). So also on 03.02.1992 an amount of Rs.20,000/- has been debited from NRE
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S.B. A/c No.136 of B.A.Ibrahim to S.B.A/c No.6521 of M.P.Ibrahim which was also prepared by accused No.1 in his hand writing. The relevant entry is at Ex.P80. Ex.P80(a) is the signature. Subsequently on 14.01.1992 an amount of Rs.80,000/- has been debited from NRE Account No.116 of Abdul Khader to S.B.A/c No.7246 of S.K.Rahaman, which is also prepared by accused No.1. The relevant entry is at Ex.P84 and Ex.P84(a). Again on 14.01.1992 an amount of Rs.1,50,000/- has been debited from NRE Account No.36 of M.Mohammed Kunhi to the S.B.Account No.7217 of A.M.Mohammed under Ex.P90 and Ex.P90(a) prepared and signed by accused No.1 in his own handwriting.
42. Again on 14.01.1992 an amount of Rs.1,00,000/- has been debited from NRE S.B. A/c
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No.31 of Adkar Mohammed Kunhi to S.B.A/c No.7217 of A.M.Mohammed under Ex.P94 and Ex.P94(a) in the handwriting of accused No.1 and signed by him. Subsequently a cheque was issued for Rs.80,000/- passed by the Manager and is marked as Ex.P98 which is in the handwriting of accused No.1 and on the reverse of Ex.P98, there is an endorsement to issue Demand Draft for Rs.8,56,500/- made by accused No.1. The endorsement is marked as Ex.P98(b) and there is debit entry for having debited an amount of Rs.80,000/- in the account of S.K.Rehaman.
43. On 14.01.1992 a self-cheque for a sum of Rs.1,20,000/- in respect of S.B.A/c No.7245 passed by accused No.1 and signed by accused No.1 and the
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relevant entries are at Ex.P99 and Ex.P99(a). The same is in the handwriting of accused No.1 on the reverse of Ex.P99 cheque, accused No.1 made endorsement to the effect "DD on Kasargod". There is another entry in Ex.P67 for having debited an amount of Rs.1,20,000/- in respect of Ex.P99. As per Ex.P20 there is an entry for having debited an amount of Rs.1,25,000/- in the ledger sheet. On 03.02.1992 another self-cheque in respect of S.B.A/c No.6521 relevant entry is at Ex.P101 in the hand writing of accused No.1 and he passed the same and affixed his signature at Ex.P101(a) and on the reverse of Ex.P101 the accused made endorsement to the effect that "DD on Kasargod" Another self-cheque dated 03.02.1992 for a sum of Rs.2,00,000/- in S.B. A/c No.6521 is also in the hand writing of accused No.1 passed by him and relevant entries are at Ex.P102 and Ex.P102(a). On the reverse of Ex.P102, accused No.1 made an endorsement to the effect that "DD on Kasargod". There is corresponding entry in the ledger
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sheet Ex.P36 for having debited an amount of Rs.2,00,000/- as per Ex.P102.
44. The evidence of PW9 further shows that likewise accused No.1 utilised the self-cheques for various amounts and on the reverse of the self-cheques the accused No.1 made an endorsement to the effect "DD on Kasargod" and the corresponding entries are also made by accused No.1 in the ledger sheets. The amounts so withdrawn under the self-cheques were used for the purpose of demand drafts in favour of 'Plantation Corporation of Kerala' and another cheque in favour of K.Abdulla. Thus he diverted the amounts from different accounts and subsequently used for issuance of demand drafts.
45. PW10 one P.Abdulla Kunhi, has stated in his evidence that he paid Rs.1,00,000/- to accused No.1 and he made an entry in his passbook. Once he gave a cheque for Rs.20,000/- and obtained the said amount
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from accused No.1. Again when he went to the Bank to withdraw the remaining amount, he was told that there was no balance in his account. They met accused No.1 and asked him about the balance amount for which accused No.1 confessed his guilt and next day he paid Rs.80,000/-. He further stated that he has not given any authority or consent to transfer Rs.1,00,000/- to the account No.7217 of A.M.Mohammed and he had no transaction with him.
46. PW11 Mohammed Kunhi also stated in his evidence that he went through his account maintained at Syndicate Bank, Jalsoor Branch. He came to know that Rs.1,50,000/- was transferred from his account to account of A.M.Mohammed without any authority or consent. He also stated that accused No.1 transferred the said amount and his father had given him Rs.80,000/- to accused No.1 to deposit in his account but it was not deposited.
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47. Likewise PW12 has stated in his evidence that he opened NRE Account No.75 in Syndicate Bank, Jalsoor Branch and deposited the amount regularly to his account by transferring from Gulf and when he verified the account, he came to know that there was shortage of Rs.20,000/-. He also came to know that accused No.1 transferred an amount of Rs.20,000/- from his account to the A/c No.6521.
48. PW13 D.Shrikrishna, also working as a Clerk in the Syndicate Bank, Jalasoor stated that S.B. A/c No.7217 was in the name of A.M.Mohammed. Some cheques were in the hand writing of accused No.1 and as per his directions he paid demand drafts with an endorsement i.e., "DD on Kasargod". His evidence further shows that as per the instructions of accused No.1, he prepared demand drafts for Rs.1,20,000/-, Rs.80,000/-, Rs.2,00,000/-, another Rs.2,00,000/-. One day when a customer by name Abdulla Kunhi came
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to the branch to withdraw the amount, on verification it was found that there was no amount on his credit in his account. The said Kunhi informed that he has not given in instructions to accused No.1 to withdraw the amount from his account.
49. PW16 who is working as Manager in Plantation Corporation of Kerala at Kasargod, has stated in his evidence that accused No.2 used to attend the cashew auction. The demand drafts for Rs.8,55,000/- and Rs.2,00,000/- were issued in favour of Plantation Corporation of Kerala which were encashed in favour of Plantation Corporation of Kerala through Corporation Bank.
50. PW.17 who is having S.B.Account in Syndicate Bank, stated in his evidence that the amounts of Rs.45,000/- and Rs.50,000/- have been withdrawn from his account by way of transfer without his instructions.
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51. PW18 also stated that an amount of Rs.2,00,000/- is credited to his account in the month of February 1992. When he required Rs.1,20,000/- he informed the same to accused No.1, for which accused No.1 informed that he has already withdrawn Rs.2,00,000/- from his account and promised to repay the same within 2-3 days. Thereafter he came to know that accused No.1 utilised the withdrawal slips signed by him and drawn the amount from his account and on demand he has paid Rs.1,16,000/- and promised to pay the balance amount.
52. PW19 is another NRE account holder. According to him he used to send some amounts from Saudi Arabia to his account for the purpose of marriage expenses of his sister. After sometime, when he went to the Bank and came to know that there was no balance in his account though he sent Rs.50,000/- on two occasions, he also came to know that the amount
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was transferred from his account to some other account by accused No.1 without his authorization and consent. Therefore, he complained to the Head Office.
53. PW20 is the Manager of Syndicate Bank, Jalsoor Branch. He has stated in his evidence that Ex.P50 ledger sheet pertaining to A/c No.7217 reveals deposits of Rs.100/- and Rs.200/- and there are no other deposits. But on 14.01.1992 there was balance of Rs.1,00,300/-. An amount of Rs.1,00,000/- was credited by way of transfer on the same day from the NRE S.B. A/c No.31 and Ex.P131 is the credit slip passed by accused No.1 and Ex.P131(a) is his signature. The other credit slips in respect of the same account are also in the handwriting of accused No.1. The transfer of the amount was authorized by accused No.1 as per Ex.P169 to the account of one C.A.Kunhi Mohammed.
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54. PW22 G.Ibrahim who is having deposit of Rs.19,501-46 took a loan of Rs.2,50,000/- and repaid subsequently. Later he came to know that without his consent accused No.1 has taken Rs.2,50,000/- from his account in his absence. The Assistant Manager informed him that the loan amount of Rs.2,50,000/- taken by accused No.1 on FCNRE account and when he contacted accused No.1, he was informed that he will return the amount within 4-5 days.
55. PW25 has stated that his father during his lifetime availed loan and repaid the same. Again his father applied for the loan, but actually he has not received the loan amount. After sometime he received the notice from the bank and when they approached the bank, the accused told them he availed the loan and he will pay the amount subsequently.
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56. PW26 G.Abdul Razak who was also having bank account in the said Branch has stated that on 14.02.1992 he went to Bank to remit Rs.33,000/- towards O.D. account of his father. The accused received the said amount stating that he would remit it to O.D. account. Subsequently he came to know that it was not remitted by accused No.1.
57. In this case PWs.2, 6, 7, 9, 10, 16, 17, 19, 20 and 21 were not cross-examined by the accused or his Counsel even after conclusion of the trial, the accused has not filed any application to recall them for cross- examination. The Trial Court has rightly not considered the evidence of PW19 who failed to attend the Court inspite of serving summons.
58. Thus the official witnesses PWs.1, 2, 9, 13 and 20 attached to the Bank have clearly stated in their evidence that accused No.1 fraudulently and dishonestly transferred the amounts of the account
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holders to the accounts of fictitious persons and withdrew huge amounts illegally without the consent and knowledge of the account holders and has taken demand drafts for huge amounts. The account holders PWs.3, 4, 7, 8, 10, 11, 17, 18 and NRE account holders PWs.19 and 22 examined by the prosecution also clearly deposed that they never authorized accused No.1 to transfer the amounts from their accounts to the other accounts and that the account holders to whose accounts their amounts were transferred are not known to them and they have no dealing with them. The entire evidence of the officials of the Bank as well as the account holders clearly indicates that the accused No.1 being a public servant as Branch Manager abused his official power and by illegal means deliberately transferred the amount from their accounts and transferred the amounts to the fictitious persons at the request of the accused No.1 and caused wrongful loss to the account holders and also to the Bank.
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59. The account holders have categorically stated in their evidence that after verifying the transactions in the account they came to know about the fraud played by accused No.1. Therefore they reported the matter to the Head Office.
60. PW9 has clearly stated in his evidence that PW9 was working as Special Assistant in the Syndicate Bank, has clearly stated in his evidence about the various fraudulently entries made by accused No.1 affixing his own signature for transfer of the amounts from the NRE accounts to the accounts of other persons who opened the account at the instance of accused No.1 and taken demand drafts for huge amounts after withdrawing small amounts to the accounts of others and transferred the demand drafts to Plantation Corporation of Kerala.
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61. Chapter XVII of the Code of Criminal Procedure deals with offences against property.
Section 420 IPC reads as hereunder:
"Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
62. In order to establish the charge under Section 420 IPC, the prosecution has to prove that not only the accused has cheated someone, but also that by such cheating, he has dishonestly induced the person cheated to deliver any property. A person can be said to have done a thing dishonestly if he does that thing with the intention of causing wrongful gain to one person, or wrongful loss to another person by unlawful means of
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property to which the person gaining is not legally entitled.
63. In the instant case, the evidence on record clearly establishes the fact that the accused dishonestly and fraudulently transferred the amounts of the NRE account holders and other account holders to the accounts of fictitious persons without their consent and knowledge, thereby caused wrongful loss to the account holders and wrongful gain to the persons who opened accounts at the instance of accused No.1. The prosecution therefore established the ingredients of Section 420 IPC against the appellant.
64. Chapter XVIII of Cr.P.C. deals with the offences relating to documents and property marks.
The appellant is charged for the offence under Section 468 IPC alleging that he used the forged documents for the purpose of cheating the account
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holders. If the intention of the accused in committing forgery is that the forged document should be used for the purpose of cheating, the offender is guilty of the aggravated offence under Section 468 IPC. If a forged document was in fact used by the offender for the purpose of cheating he would be guilty for both the offences under Section 468 IPC as also the offence of cheating.
65. In the instant case, the appellant with dishonest intention forged the bank records, cheques and got transferred the amounts of the account holders including NRE account holders in the name of the fictitious persons and has taken demand draft for huge amount in favour of accused No.2. The evidence available on record was quite sufficient to prove the charges of forgery and cheating against the appellant.
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66. The appellant was also charged for the offence under Section 477A i.e., for falsification of accounts which reads as hereunder:
"Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, [electronic record,] paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, [electronic record,] paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
67. In order to prove the offence under Section 477A, the prosecution has to prove that the person who
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commits the offence is a clerk, officer or servant, and secondly, that there was intention to defraud. Admittedly, in the instant case, the appellant is the Manager of the Bank. In the capacity of the Manager of the Bank, he indulged in falsification of accounts of the bank and the cheques of the account holders got transferred their amounts into the accounts of fictitious persons without their knowledge. The evidence of the bank officials as well as the account holders clearly prove the fact that the appellant falsified the accounts maintained by the Bank and misappropriated the funds of the account holders while working as Branch Manager of the bank, thereby caused wrongful loss to the account holders and wrongful gain to the fictitious account holders.
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68. After considering the entire evidence on record, the Trial Court has rightly come to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt for the offences under Sections 420, 468, 477A and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act.
69. For the aforesaid discussions, the learned Special Judge was justified in convicting the accused for the offences for which he was charged. Therefore, I see no grounds to interfere with the order of conviction and sentence passed against the appellant. The judgment of the Trial Court is hereby confirmed.
70. The appeal is therefore dismissed. The appellant is directed to surrender before the Trial Court to serve the sentence awarded by the Trial Court. The bail bonds of the accused are hereby cancelled.
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The Office is directed to send the lower Court records to the Trial Court forthwith.
Sd/-
JUDGE JT/DM