Gujarat High Court
Rameshchandra vs State on 22 December, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.A/299/1996 26/ 28 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 299 of 1996
With
CRIMINAL
APPEAL No. 257 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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RAMESHCHANDRA
BHOGILAL PATEL - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
CRIMINAL
APPEAL NO. 299/1996
MR
MJ BUDDHBHATTI for
Appellant(s) : 1,
MR HL JANI Ld. APP for Opponent(s) : 1,
MR YN
RAVANI for Opponent(s) : 2,
CRIMINAL
APPEAL NO. 257/1996
MR AD SHAH
for Appellants
MR HL JANI
Ld. APP for Opponent no. 1
MR YN
RAVANI for Opponent No.
2
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 02/12/2010
COMMON
ORAL JUDGMENT
1. Both these appeals under sec. 374 of Code of Criminal Procedure are directed against the common judgment and order of conviction and sentence dated 14.3.1996 passed by the learned Special Judge, Court No. 3, Ahmedabad in Special Criminal Case No. 25/1988, Special Criminal Case No. 26/1988 and Special Criminal Case No. 27/1988, whereby, the appellant of Criminal Appeal No. 299/1996 - original accused no. 2 of Special Criminal Case No. 26/1998, has been convicted under sec. 420 read with sec. 120-B of IPC and sentenced to suffer R/I for two years and to pay a fine Rs. 1000/-, in default, to suffer further R/I for two months, whereas, the appellants no. 1 of Criminal Appeal No. 257/1996 - original accused no. 1 in Special Criminal Case No. 25/1988, 26/1988 and 27/1988 has been convicted under sec. 420 read with sec. 120-B of IPC and also under sec. 5(2) of the Prevention of Corruption Act and sentenced to suffer R/I for two years and to pay a fine of Rs.1000/- in default, to suffer further R/I for two months in all the above criminal cases and appellant no. 2 of Criminal Appeal No. 257/1996 - original accused no. 2 in Special Criminal Case No. 27/1988 has been convicted under sec. 420 read with sec. 120 of IPC and also under sec. 5(2)of the Prevention of Corruption Act and sentenced to suffer R/I for two years and to pay fine of Rs. 1000/- in default, to suffer further R/I for two months. It has been also ordered by the learned Judge that all the sentences shall run concurrently.
2. It may be stated at the outset that the appellant no. 2 of Criminal Appeal No. 257/1996 has been expired during the pendency of this appeal and, therefore, his legal heirs have been brought on record to continue the appeal proceedings vide order dated 29.6.2009 passed in Criminal Misc. Application No. 4715/2009.
3. The brief facts of the prosecution case is as under:
3.1 In Special Criminal Case No. 25/1988, it is allege that accused Mahesh Vasantrai Pancholi, while working as Branch Manager of Dena Bank, Visnagar Branch, Dist. Mehsana during the year 1985 purchased 5 bills from M/s. Rameshchandra Hargovinddas & Co., - accused no. 4, whose partners accused nos. 2 and 3 (no. 3 since deceased) were enjoying the Bills Purchased facilities of Rs. 3.00 lacs with the said Bank, which was renewed up to November, 1985 which was subsequently extended to the tune of Rs. 5 lacs. The accused no. 1 purchased these bills on 15.6.85 which were submitted by accused no. 4 with a dishonest intention to cheat Dena Bank. He purchased Bill No. 774 in which copy of Rly. Receipt No. 892856 dated 15.6.85 was produced in Dena Bank, Visnagar and payment of Rs. 90000/- was obtained whereas the original Rly. Receipt of the same number was produced in Bank of Baroda, Visnagar Branch and payment of Rs.
85,000/- was obtained by accused no. 4.
3.2 It is further alleged that Bill purchase No. 775 in which copy of Rly. Receipt No. 892857 dated 15.6.85 was produced in Dena Bank, Visnagar and payment of Rs. 90,000/- was obtained whereas the original Rly. Receipt of the same number was produced in Bank of Baroda, Visnagar Branch and payment of Rs. 85,000/- was obtained by accused no. 4.
3.3 It is also alleged that bill purchase no. 932 in which copy of Rly. Receipt No. 383604 dated 24.7.85 was produced in Dena Bank, Visnagar and payment of Rs. 1,00,000/- was obtained whereas the original Rly. Receipt of the same number was produced in the State Bank of Saurashtra, Visnagar and payment of Rs. 95000/- was obtained by the accused no. 4.
3.4 It is further alleged that bill purchase no. 1044 in which copy of the Rly. Receipt No. 383760 dated 10.8.85 was produced in Dena Bank Visnagar Branch and payment of Rs. 95,000/- was obtained, whereas the original Rly. Receipt of the same was produced in State Bank of Saurashtra, Visnagar and payment of Rs. 95000/- was obtained by the accused no. 4.
3.5 It is further alleged against the accused no. 1 that Bill Purchase No. 1045 in which copy of Rly. Receipt No. 383759 dated 10.8.85 was produced in Dena Bank, Visnagar and payment of Rs. 95000/- was obtained, whereas, the original Rly. Receipt of the same was produced in State Bank of Saurashtra, Visnagar and payment of Rs. 95,000/- was obtained by the accused no. 4. It is also alleged that accused no. 4 sent the consignments of Mustard Seeds at Calcutta whereas the original Rly. Receipts together with the hundies and bills were submitted in the Bank of Baroda, as well as State Bank of Saurashtra, Visnagar and obtained payments as stated above. The accused no. 1, purchased aforesaid 5 bills, inspite of fully knowing that the copies of Rly. Receipts were produced, yet he purchased the same and arranged payment for the accused no. 4 and committed a fraud of Rs. 4,70,000/- on Dena Bank, Visnagar Branch. The accused no. 1, after purchasing these 5 bills sent the documents to Dena Bank, Burra Bazar Branch Calcutta for their retirement by the drawee M/s. Jagnnath Satyanarayan, Calcutta who did not retire these bills on the ground that the same contained copies of Rly. Receipts and no consignment was received in the Railway against the copies of Rly. Receipts at Shalimar, Calcutta.
3.6 In Special Criminal Case No. 26/1988, the case of the prosecution is that accused no. 3 M/s. Rameshchandra Hargovinddas & Co. Visnagar was a firm dealing with the sale of mustard seeds, Jira etc. at Visnagar. The said accused no. 3 were also enjoying same facilities of Bill Purchase Limit with other Banks like Bank of Baroda, State Bank of India, State Bank of Saurashtra and Visnagar Nagrik Sahkari Co-operative Bank Ltd. Visnagar. The accused no. 1, while functioning as Branch Manager of Dena Bank, Visnagar, during the year 1985, misused his official position inasmuch as he entered into a criminal conspiracy with the partners of the accused no. 3 firm and fraudulently purchased bills along with Rly. Receipts Nos. 379290, dated 12.1.1985 and 379295 dated 14.1.1985 along with the Hundies dated 16.1.85 and 17.1.85 respectively and accused no. 3 to avail Rs. 1 lac against each Rly. Receipt from the Dena Bank, Visnagar Branch, these bill were drawn on Radheshyam Ramavtar and Ravatmal Mohanlal of Calcutta and were sent for realisation to Dena Bank, Burra Bazar Branch Calcutta. As the drawee did not retire these bills, the same were returned to accused no. 1 as unpaid bills on 23.4.85. It is further alleged that the accused no.1 did not make an entry about the return of these bills and delivered the same in a fraudulent manner to Shri Rameshchandra Patel - accused no. 2 partner of accused no. 3. It is also alleged that accused no. 2 presented the said two Rly. Receipts with fresh Hundis favouring M/s. Sagarmal Mukherjee of Calcutta to accused no. 1 on 11.6.1985 and the accused no. 1, in turn granted advance of Rs. 1 lac each on these Rly. Receipts and the same were sent to Dena Bank, Burra Bazar Branch, Calcutta for retirement. As the drawee, M/s. Sagarmal Mukherjee of Calcutta did not retire the bills from the Bank, the said bills remained pending till October, 1985.
3.7 It is further alleged that the consignment of Mustard Seeds which was sent on 12.1.1985 and 14.1.85 against the above said Rly. Receipts were delivered to the party on production of two Indemnity Bonds filed on 30.1.85 without retiring the bills which were pending with Dena Bank, Burra Bazar Branch, Calcutta. The accused no. 1, however, granted the advance against the same Rly. Receipts twice to the party i.e. on 16.1.85, 17.1.85 and 11.6.85 without ascertaining from Calcutta or from the party where the consignments against whom the advances were granted, were delivered to the drawee party of Calcutta or not and thereby accused no. 1 caused a wrongful loss to Dena Bank, Visnagar Branch to the tune of Rs. 2 lacs and corresponding wrongful gain to the party.
3.8 In Special Criminal Case No. 27/88, it is alleged that accused no. 1 and 2 while functioning as Branch Manager and Accountant, respectively of the Dena Bank, Visnagar Branch in the year 1985, purchased four bills from accused no. 5 and the partners of the accused no. 5, namely accused nos. 3 and 4 (no. 4 since deceased) were enjoying Bills purchase facilities with the said Bank to the extent of Rs. 3 las which were renewed upto November, 1985 and extended to the tune of Rs. 5 lacs. It is also alleged that accused no. 1 and 2 purchased 4 bills nos. 760, 823, 824 and 933 on 12.6.85, 1.7.85, 1.7.85 and 24.7.85 respectively and submitted by accused no. 5 with dishonest intention to cheat Dena Bank, Visnagar Branch. It is also alleged that bill purchase no. 760, in which copy of Rly. Receipt no. 843989 dated 12.6.85 was produced in Dena Bank, Visnagar and payment of Rs. 90,000/- was obtained, the original Rly. Receipt of the said number was produced in the State Bank of India, Visnagar Branch on 3.6.85 and payment of Rs. 90,000/- was obtained by accused no. 5. The Bill purchase no. 823, in which copy of Rly. Receipt no. 383511 dated 26.6.85 was produced in Dena Bank, Visnagar and payment of Rs. 85,000/- was obtained, whereas, the original Rly. Receipt of the same number was produced in the State Bank of India, Visnagar on 27.5.85 and payment of Rs.90,000/- was obtained by accused no. 5. It is also alleged that Bill purchase no. 824 in which copy of Rly. Receipt No. 383510 dated 28.6.85 was produced in Dena Bank, Visnagar Branch and payment of Rs. 85,000/- was obtained, whereas, the original Rly. Receipt of the same number was produced in State Bank of India, Visnagar on 27.5.85 and payment of Rs. 90,000/- was obtained by the accused no. 5.
3.9 It is also alleged that bill purchase no. 933 in which copy of Rly. Receipt no. 383603 dated 24.7.85 was produced in Dena Bank, Visnagar and payment of Rs. 1 lac was obtained, whereas the original Rly. Receipt of the same number was produced in State Bank of Saurashtra, Visnagar and payment of Rs. 95000/- was obtained by accused no. 5.
3.10 It is also further alleged by the prosecution that accused no. 1 and 2 purchased the aforesaid 4 bills inspite of knowing fully well that the copies of these Rly. Receipts were produced, they however, in collusion with each other purchased the same and arranged payment and thereby the accused no. 5 committed fraud of Rs. 2,70,000/-.
3.11 It is also alleged that accused nos. 1 and 2 after purchasing the aforesaid four bills sent the documents to Dena Bank, Burra Bazar, Calcutta for their retirement by the drawee M/s. Jagannath Satyanarayan, Calcutta who did not retire the bills on the ground that these bills contained only copies of the Railway Receipts and no consignment was received in the Railway against the copies of the Railway Receipts, at Shalimar, Calcutta.
4. Therefore on 19.12.1985, a complaint came to be filed by the Deputy Superintendent of Police, CBI, Ahmedabad Shri Duabia, at CR No. 33/85 and 34/85. Thereafter, he lodged one more complaint on 23.12.85 against the present accused vide CR No. 36/85. Thereafter, Police Inspector Shri K.D. Sinh of CBI, Ahmedabad investigated all the three offences in view of the FIRs filed by Shri Duabia, Deputy Superintendent of Police. He started investigation and recorded statements of concerned witnesses and also collected various documents and sent the necessary documents for examination to Hand Writing Expert and after completing the investigation in all the three cases, he obtained sanction to prosecute the accused ShriMaheshchandra Vasantrai Pancholi and Shri Dahyabhai J. Shrimali, as they were public servants. Thereafter, he submitted three separate charge-sheets against all the accused persons, which were numbered as Special Criminal Cases Nos. 25/88, 26/88 and 27/88.
5. Thereafter, the charge in Special Criminal Case No. 25/88 was framed at Ex. 14 and in Special Criminal Cases Nos 26/88 and 27/88 at Ex. 19 against the appellants-accused. The appellants accused pleaded not guilty and claimed to be tried.
6. In order to bring the home the charge levelled against the appellant- accused, the prosecution has examined the following witnesses:
Devendrabhai Hargovindprasad Ex. 29 Sureshkumar Ambalal Makwana Ex. 51 Nareshchandra Girjashanker Trivedi Ex. 60 Complainant Gordhandas Chelaram Ex. 61 Chandrakant Surajmal Shah Ex. 63 Shaileshkumar Panalal Makasia Ex. 177 Navinchandra Trikamlal Parikh Ex. 190 Ulas Madhavrav Kayure Ex. 200 Natvarlal Amarsinhbhai Jadav Ex. 205 Vithalbhai Nafabhai Vankar Ex. 206 Pradipkumar Prabodhchandra Das Gupta Ex. 208 Kanubhai Mohanlal Gohil Ex. 211 Malaykumar Sitaram Basu Ex. 215 Asutosh Vishvas Raymohan Vishvas Ex. 232 Shivkumar Sagarmal Agraval Ex. 244 Rajendra Satyanarayan Agraval Ex. 247 Shyamsunder Radheshyam Junjunwala Ex. 248 Satyanarayan Matadin Derivala Ex. 249 Dilipkumar Ramanlal Maharaj Ex. 250 Mangaldas Gopaldas Patel Ex. 256 Manojkumar Arjun Satpati Ex. 259 Chitapali Gurumurti Ex. 265 Rajendra Ambalal Shah Ex. 266 Chetankumar Shivshanker Trivedi Ex. 268 Narendrasinh Shri Rajendrasinh Ex. 271 Subodhchandra Anantkumar Gerami Ex. 264 Kanaiya Narayan Devnarayanprasad Sinh Ex. 276, I.O. of CBI Gurmitsinh Indersing Duabia Ex. 289, Dy. Suptd. Of CBI The prosecution has also produced several documentary evidence before the trial Court to prove its case.
7. Thereafter, after examining the witnesses, further statement of the appellants-accused under sec. 313 of CrPC was recorded in which the appellants-accused have denied the case of the prosecution.
8. After considering the oral as well as documentary evidences and after hearing the parties, learned Special Judge, Court No. 3, Ahmedabad vide impugned judgment and order dated 14.3.1996 held the appellants accused guilty to the charge levelled against them under sec.420 read with sec. 120-B of IPC and also under sec. 5(2) of the Prevention of Corruption Act and convicted and sentenced the appellant accused, as stated above.
9. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Ahmedabad, the present appellants have preferred these appeals.
10. Heard Mr. MJ Buddhbhatti learned advocate for the appellant in Criminal Appeal No. 299/1996, Mr AD Shah learned advocate for appellants in Criminal Appeal No. 257/1996, Mr YN Ravani learned Special PP for CBI and Mr HL Jani learned APP for the respondent-State.
11. Mr Buddhbhatti learned advocate has contended that the charge is quite illegal and there is misjoinder of charges and the learned Judge has committed serious error of law in trying the three cases together. There is no provision in Criminal Procedure Code to consolidate the cases. He further contended that it is quite apparent that the story of prosecution is inherent by improbable. Alternatively, if it is believed, than, it is a case of pure civil dispute as the amount was to be adjusted to the Cash Credit given to the firm of the accused. In fact, some amount was recovered from the accused of the firm and civil suit was filed which was allowed in terms of consent decree passed in favour of the respective banks. Mr Buddhbhatti has further contended that the defence of the accused was that he was not dealing with the goods and the work of loading the wagon was done by one partner Shri Pratapji Chhagnji and it was his duty to deal with the sale and dispatch by railway. He was not at all concerned with Railway Receipt. However, he was agreed to pay the amount to the Bank in suit filed by the Bank and consent decree has been passed and, therefore, the transactions were of civil nature. Mr Buddhbhatti has further contended that the prosecution has led the evidence which consisted mainly of the facts which are more or less admitted by defence. There is no denial to basic facts that firm was carrying on business of Mustard Seeds and had account with Banks. He further contended that the facts that hundies were drawn and encashed but the only dispute is of dishonesty or the main ingredients of cheating, however, there is no iota of evidence showing wrongful loss to any one and wrongful gain to the accused or their firm. Mr Buddhbhatti has further contended that the case of the prosecution is in the nature of circumstantial and if not explained reasonably, case must end into acquittal. The principles of circumstantial evidence, in brief, are that:
The circumstances which are required to be proved must be incriminating in nature;
The chain must be completely established and all links must be connected together which should lead to exclusive hypothesis of guilt;
Each link must be established by cogent evidence;
There should not be any other hypothesis except guilt;
12. Mr Buddhbhatti further contended that in the present case, the dispute is of pure civil nature and suits are filed which are not contested by the accused admitting their civil liabilities. Thus, there is no question of any dishonest intention on the part of the accused.
13. Mr Buddhbhatti has also contended that there is a charge of conspiracy. It is submitted that there is not an iota of evidence about any such conspiracy, not even an inference is possible from proved facts on record. He has submitted that it is well settled law that to establish conspiracy which is always hatched in secrecy and the evidence of an approver is a must and in this case, there is no approver to prove any conspiracy. He further contended that the offence if any, has taken place at Calcutta and therefore, the trial court has no jurisdiction to try the case. He further contended that there is evidence on record that the firm had very high reputation and very huge turn over and due to mistake or oversight, if any irregularity was committed, than there was corresponding cash credit available to the party and some part was recovered from the accounts of the firm and partly in suits by way of consent decree passed by competent Civil Court. He further contended that the criminal proceedings are not meant to be used as a lever to recover the money due to Banks, and therefore, the impugned judgment and order of conviction is required to be quashed and set aside.
14. Mr Buddhbhatti further contended that the statements of the accused are recorded, are running into 72 pages which are self explanatory and they show that the accused are in no way connected with any conspiracy or dishonesty. He further contended that there is not an iota of evidence of any corruption and charges of corruption were faisted with a view to enable the CBI to investigate the offence. There is no proof that any amount was paid to any public servant by way of bribe and the accused were made to suffer mentally, physically, psychologically and financially due to this charge which was totally baseless and, therefore, the impugned judgment and order of conviction and sentence requires to be quashed and set aside.
15. Mr AD Shah learned advocate appearing for appellants of Criminal Appeal No. 257/1996 has contended that it was the case of the accused no. 1 that, M/s. Rameshchandra hargovinddas & Company and Mr/s. R.H. Traders at Visnagar were reputed parties and they were enjoying Bill Purchasing facility since 7 to 8 years and the prosecution evidence clearly establishes that PW-10 Vitthalbhai Mafabhai Vankar Ex. 206 was working on B.P. Counter and it was his duty to check documents received from the party in respect to Bill Purchase facility. The cross examination clearly reveals that Railway Receipts, Bill and Hundi were to be examined by him and he had not drawn the attention of the Manager in respect to the Railway Receipts on the basis of which he had prepared the vouchers and forwarded Forwarding Schedule Customers Liability Register and vouchers after entering the same in B.P. Register and the Branch Manager on the basis of those papers used to put hi signature and sent back those documents. Thus, his evidence clearly reveals that from Dena Bank's Burra Bazar Branch, Calcutta, no correspondence was received in respect to the Railway Receipts and the documents. He, therefore, submitted that thus, the evidence of this witness and the Bank procedure clearly established that this entire work in respect to Bill Purchase facility was handled by Mr Vankar and the same were required to be verified by Mr Vankar. The question of true copies of Railway Receipts was never raised by Mr Vankar on verification of the documents and was not even agitated by Dena Bank, Burra Bazar Branch, Calcutta. Thus, the inference, drawn by the learned Special Judge that accused no. 1 Maheshchandra Pancholi and Accountant Dahyabhai Shrimali had knowledge about the true copies of Railway Receipts being produced, is not supported by the evidence of prosecution witnesses.
16. Mr. Shah learned advocate further contended that the learned Special Judge did not consider that Dena Bank Burra Bazar Branch, Calcutta, on receipt of Railway Receipts from Visnagar Branch, after checking the documents had to inform the parties for retiring of the documents as well as to register lien with Railways. However, Dena Bank, Burra Bazar Branch, Calcutta, had not registered lien with Railways in respect to those Railways Receipts and also did not return original documents to Dena Bank, Visnagar Branch on expiry of scheduled time within which the concerned party was required to retire the documents by making payment. The evidence also further reveals that, as no intimation was received from Dena Bank, Burra Bazar Branch, Calcutta, a Telegram was also sent by Visnagar Branch and Mr Mahendra Naik of Zonal Officer, Dena Bank, Ahmedabad had collected those documents from Dena Bank Branch at Calcutta. Thus, the inference of collusion between Branch Manager and Accountant with partners of the firm at Visnagar is totally not established by cogent evidence and on the contrary, the evidence runs counter to the accusation.
17. Mr AD Shah has further contended that the learned Special Judge also did not take into consideration the conduct of accused no. 1. The CBI registered the offences on 19th December, 1985. However, it transpires from the evidence that, accused no. 1 finding that the documents were not retired by the parties, filed Special Civil Suit No. 144/1985 on 3rd October, 1985 for an amount of Rs. 3,75,126.72ps., against Mr. R.H. Traders. The accused no. 1 also filed Special Civil Suit No.145/1985 against M/s. Rameshchandra Hargovinddas & Co., on 7th October, 1985 for an amount of Rs. 4,87,178.77ps. It was also found that these firms were having amount with State Bank of Saurashtra and they were having Fixed Deposit Receipt of Rs. 1 lakh with Dena Bank, Visnagar Branch. It also transpires from the evidence that, the amount of Rs. 1,95,000/- which was in the account of the parties with the State Bank of Saurashtra, was realized by obtaining orders from the Civil Court on 11th December, 1985. The accused no. 1 had also adjusted margin money of about 25% in this Overdraft against FDR in the Current Account. Thus, before filing of FIR, the accused no. 1 had taken steps to see that more than Rs. 2 lacs amount is recovered by initiating civil proceedings. Thus, the inference of learned Judge, as to accused acting in conspiracy, is totally not supported by the prosecution case.
18. Mr. AD Shah, learned advocate for the appellants further contended that the evidence of prosecution witnesses clearly disclose that, Vittalbhai Mafabhai was working on Bill Purchase counter and he was preparing the vouchers. It was entered in B.P. Register by him as well as the same were posted in Customer Liability Register. It was also in evidence that, the forwarding letter was also being prepared by this witness. This witness, after describing the procedure, clearly prepared necessary documents which were required to be prepared by him. The cross-examination of this witness clearly revealed the detailed procedure which establishes that the collecting Clerk receives the document in B.P. Limit and after considering the documents forwards the same to the officer, and that officer on scrutiny of the documents signs on counter. It is also the evidence of this witness that, after the concerned officer signs on counter, the said documents go to Branch Manager and Branch Manager forwards the same to the witness. This witness categorically admitted that, thereafter, he examines Railway Receipt, Bill (Invoice) and Hundi and then enters the same in B.P. Register. This witness categorically admitted that he had never drawn the attention of the Manager in respect to Railway Receipts and he had not found anything objectionable in the Railway Receipts received from the party. Thus, when different persons entrusted with certain duties to be performed and this procedure having been followed by this witness Mr. Vankar, he forwarded vouchers, Customers Liability Register and Forwarding Schedule to Branch Manager who had signed the document for further forwarding and further action. This witness also admitted that, Burra Bazar Branch of Dena Bank at Calcutta had never intimated about the documents forwarded from Dena Bank,Visnagar Branch.
19. Mr AD Shah further contended that it was clearly pointed out that, the concerned clerk Mr Vankar was to perform his duties in entering the documents in B.P. Register. The accused no. 1, having relied on performance of duties by Mr. Vankar, merely signed Forwarding Schedule and it cannot be said that there was any lapse on his part. Mr AD Shah has placed on the observations of the Apex Court, in the matter of Anil Kumar Bose Vs. State of Bihar [1994 SC 1560], which reads as under:
On the above evidence at the highest it was a failure on the part of the Accountant to perform his duties or to observe the rules of procedure laid down in the duty chart in a proper manner and may, therefore, be an administrative lapse on his part about which we are not required to pronounce any opinion in this case. Without, however, anything more, we do not think it will be correct to impute to this appellant a guilty intention which is one of the essential ingredients of the offence of cheating under Section 420 IPC.
20. Thus, as considered by the Apex Court, it may be, at the highest, a case of error of judgment or breach of performance of duty which, per se, cannot be equated with dishonest intention to establish the charge under sec. 420 of IPC. Therefore, the overall consideration of the evidence adduced by the prosecution and more particularly admissions by the witnesses in cross-examination, it is not proved by the Prosecution that accused no. 1 and/or accused no. 2 (appellants) had conspired with partners of M/s. Rameshchandra Hargovinddas & Company and/or M/s. R.H. Traders.
21. Mr AD Shah further submitted that the observations of the Apex Court in the case of Narendra Pratap Narainsingh & Anr., Vs. State of UP, reported JT 1991(2)SC 86, squarely cover the case of the appellants accused. The prosecution evidence is not sufficient at all to even, prima-facie, infer any dereliction of duty on the part of accused no. 1 and 2. At the most, the evidence on record clearly reflects that, if there was any dereliction of duty, then it was on the part of the concerned clerk, Vittalbhai Mafabhai Vankar (PW-10 Ex. 206) of the Bill Purchase Department of Dena Bank at Visnagar Branch and the concerned officers of the Dena Bank at Burra Bazar Branch at Calcutta. The failure on the part of the Burra Bazar Branch of Dena Bank at Calcutta in respect to the non-retirement of the documents by the concerned parties, non-recording of lien with Railway in respect to those Railway Receipts and non-intimation of the collection of the material against the Railway Receipts by the purchasing party have totally kept the accused appellants in dark about the enjoyment of the facility by the partners of M/s Rameshchandra Hargovinddas & Co., and/or M/s. R.H. Traders.
22. Mr AD Shah has further submitted that the cross-examination of Malaykumar Sitaram Basu, Branch manager, Burra Bazar Branch of Dena Bank at Calcutta has not been properly appreciated by the trial Court. The admission of this witness that all the bills which were not retired by the parties were not returned to Visnagar Branch, and that Mr Naik of Dena Bank had collected the same, clearly establishes that the appellant accused at Visnagar Branch were totally in dark about status of documents at Calcutta. This witness had further admitted that, no documentary evidence about intimation to the party to retire document was produced before CBI. Thus, the evidence of witnesses from Dena Bank, Burra Bazar Branch, Calcutta, clearly reveal that there was dereliction of duty on their part whereby the parties at Calcutta who were required to retire the documents failed to retire those bills which resulted into enjoyment of facility by customers at Visnagar.
23. Mr AD Shah learned advocate for the appellants has submitted that the evidence of Subhodchandra Anantkumar (PW-26 Ex. 274) also discloses that, Hargovindbhai Patel had executed Indemnity Bonds to deliver goods to M/s Sagarmal M. Mukherjee and on the basis of those Indemnity Bonds the delivery was effected. This could happen only because there being no intimation from the Dena Bank, Burra Bazar Branch for not effecting delivery without Railway Receipts. The evidence adduced on record, thus, prima facie, failed to establish any criminal misconduct on the part of accused no. 1 and 2. The steps taken by accused no. 1 of initiating civil proceedings and to get attachment of the amount of Rs. 1,95,000/- lying with the State Bank of Saurashtra and also adjusting margin money against the Fixed Deposit lying with the Bank clearly rule out the accused acting in conspiracy with each other to help M/s. Rameshchandra Hargovinddas & Co. and/or M/s. R.H. Traders, and, therefore, the order of conviction of accused under sec. 5(1)(d) read with sec. 5(2) of the Prevention of Corruption Act, is absolutely illegal and the necessary ingredients of sec. 5(1)(d) are not, prima-facie made out. Section 5(1)(d) is having 3 sub-clauses, and there is no finding recorded by the learned Judge as to which portion of sub-clauses of sec. 5(1)(d) has been proved by the prosecution and, therefore, the impugned judgment and order of conviction and sentence requires to be quashed and set aside.
24. Mr YN Ravani learned advocate for CBI has submitted that the case against the present appellants have been already proved beyond reasonable doubt before the trial Court. He further contended that even today also, from the perusal of the oral as well as documentary evidence, it appears that there is sufficient evidence to say that the impugned judgment and order of conviction and sentence passed by the learned Judge is proper in eye of law and the prosecution has also proved the ingredients of section 420 read with sec. 120-B and sec. 34 of IPC. Mr Ravani has also contended that the accused who is a Branch Manager, a public servant, has committed the criminal misconduct during his official duty. Even the dishonest intention is also proved beyond reasonable doubt against the Branch Manager and, therefore, the conviction under sec. 5(1)(d) read with sec. 5(2) of the Prevention of Corruption Act is proper in eye of law and the learned Judge has considered the oral as well as documentary evidence and, therefore, the impugned judgment and order of conviction and sentence requires to be confirmed.
25. Heard the learned advocates appearing for the parties and read the oral as well as documentary evidence produced on record. From the perusal of charge Ex. 14, it appears that originally the charge was framed against the present appellants for the offence punishable under sec. 420 read with sec. 34 of IPC and against the public servant, the charge was framed under sec. 5(1)(d) read with sec. 5(2) of the Prevention of Corruption Act (Old Act). First of all, just to consider the allegation of cheating is concerned, definition of sec. 415 of IPC is required to be considered, which reads as under:
415.-
Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat .
26. The main ingredients of cheating with dishonest intention is not proved beyond reasonable doubt, then, conduct of the accused cannot be considered that he has committed an offence of cheating. For the offence under sec. 34 of IPC, common intention, and this provision is also relied upon the dishonest intention and it is the duty of the prosecution to prove that there was any dishonest intention to commit the offence under sec. 420 of IPC. From the perusal of evidence of prosecution, it appears that the Branch Manager, who has been cited as an accused- the appellant herein, who is a public servant and to prove the criminal misconduct, the dishonest intention is the main ingredients of the said offence. From the evidence of prosecution, it appears that the case is depending upon the Railway Receipts. From the evidence led before the trial court, I am of the opinion that the prosecution has never proved that during the official duty of the Branch Manager present appellant, it was in his knowledge and with dishonest intention that demand of firm M/s. R.H. Traders was granted. From the oral evidence of the witnesses, it appears that it is not sufficient in a manner to say that there was any dishonest intention of the Branch Manager with a view to obtain any illegal gratification from the said firm. It is also not a case of the prosecution to say that there was some previous meeting of mind and, there was an agreement with other co-accused to commit the offence in a form of criminal conspiracy. When the agreement with other co-accused is not proved through oral evidence, then, in that case, prosecution has no right to say that there was a meeting of mind with other co-accused. From the perusal of the evidence regarding co-accused the Bank's Accountant, the prosecution has never bothered to prove his role in connection of the said offence just to prove the duty list of the said accused. Even today also, learned advocate for CBI is unable to convince this Court from the oral evidence produced on record to say that the said appellant who is an accountant has committed wrong in the said transaction. I have also considered the submissions made by Mr. Buddhbhatti and as per the evidence of partner of the said firm, their role is very limited. Even from the perusal of the submissions made by learned advocate Mr YN Ravani for CBI, he has failed to convince this Court.
27. From the above observations, it is also required to be considered that mens rea on the part of the accused present appellants is required to be considered through evidence. It is also established beyond reasonable doubt that the present appellants have committed the said alleged offence. A failure on the part of the prosecution to prove the conduct and act of the appellants-accused, then, it can be considered that the prosecution has failed to prove its case beyond reasonable doubt. In the case of Guru Bipin Singh vs. Chongtham Manihar Singh, reported in AIR 1997 SC 1448, the Supreme Court has observed that if forgery be not there, allegation under Sec. 420, I.P. Code, would fail because, forgery is the principal allegation, cheating being a consequential offence. If forgery goes, cheating cannot stand. In the present case, I have perused the FIR registered by the CBI and in the said FIR, the offence under sec. 465, 467 etc. were shown and later on investigation was carried out by the agency and charge-sheet was filed against the present appellants for the offence under sec. 420 read with sec.34 of IPC and Prevention of Corruption Act Old Act). So, it appears that during the investigation and interrogation of this case, the agency has never found that there was a case of forgery. So, in the light of the observations of the Supreme Court, when the prosecution has failed to prove the principal allegation of forgery, then the of offence of cheating cannot stand. In the case of Hridaya Ranjan Prasad Verma vs. State of Bihar, reported in AIR 2000 SC 2341, the Supreme Court has considered that the fraudulent and dishonest intention is required to be proved beyond reasonable doubt. In the present case, the basis of the prosecution case is only relying upon the conduct of the present appellants accused just to say that there was a dishonest intention and due to that intention, the appellants accused have committed the said offence.
28. Sec.
415 of IPC has two parts. While in the first part, the person must dishonestly or fraudulently induce the complainant to deliver any property; in second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. So, far as second part of sec. 415 is concerned, property , at no stage, is involved. which is dishonestly obtained or dishonestly offered to other person. Even from the evidence of prosecution, it is the duty of the prosecution to establish its case in order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise to say that he committed an act of cheating. Mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. From the conduct of the Branch Manager and Accountant, it appears that there is not a iota of evidence to say that above requirement of law is fulfilled through the oral evidence of the witnesses.
29. In view of the above observations as well as the observations of the Supreme Court cited above, I have found that the learned Judge has committed a grave error and when the offence under sec. 420 of IP Code is not proved and ingredients of sec. 415 of IPC is not established beyond reasonable doubt, then, the conviction under sec. 420 of IP Code is required to be quashed and set aside and also when the dishonest intention of a public servant is not proved beyond reasonable doubt, then, criminal misconduct cannot be proved. In that view of the matter, I am of the opinion that impugned judgment and order of conviction and sentence passed by the learned Special Judge is required to be quashed and set aside.
30 In the result, both these appeals are allowed. The impugned judgment and order of conviction and sentence dated 14.3.1996 passed by the learned Special Judge, Court No. 3, Ahmedabad in Special Criminal Cases No. 25/1988, 26/1988 and 27/1988 is hereby quashed and set aside. The appellants-accused are hereby acquitted of all the charges levelled against them. Fine if paid, be refunded to the appellants-accused. R & P to be sent back to the trial court, forthwith.
(Z.K. SAIYED, J) mandora/ Top