Bangalore District Court
State By Srirampuram Ps vs For The Offences Punishable U/S.408 on 6 January, 2020
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 6th day of January 2020
Present : Smt. Reshma Jane Rodrigues,
M.Com., L.L.M.
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 16505/2011
2. The date of commission
of the offence : 01.03.2009 to 19.06.2009
3. Name of the complainant : State by Srirampuram PS
4. Name of the accused : Mayavati Yerdoor, 42 Yrs.,
W/o Sudhakar,
R/a. No.50, 2nd floor,
9th main road, Manjunatha Nagar,
West of Chord Road, Rajajinagar,
Bengaluru.
5. The offences complained : U/s.409, 465, 467, 468, 471 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Convicted
8. Date of order : 06.01.2020
The Srirampuram police have filed charge sheet against the
accused for the offences punishable u/s.408, 465, 467, 468, 471 of
IPC.
2 CC.NO.16505/2011
2. The brief facts of the prosecution case are as under :
It is the case of the prosecution that the accused was working as
a clerk in Vijaya Bank, Ekagavakshi during the period 01/03/2009 to
19/06/2009 the accused has put her thumb impression to the
withdrawal slips of Muniswami S.B. A/c No.12602 for Rs.30,000/-
and Sundaramma S.B. A/c No.13526 for Rs.31,800/-,
Muninarayanappa S.B. A/c No.13526 for Rs.35,000/-, Munilakshmi
S.B. A/c No.12625 for Rs.19,000/-, Yallamma S.B. A/c No.15625 for
Rs.13,000/- and withdrawn total Rs.1,31,800/- and thereby committed
the offences u/s.408, 465, 467, 468, 471 of IPC.
3. The accused was enlarged on bail and after filing charge sheet
summons was issued to the accused. After service of summons
accused appeared before the court and copy of charge sheet was
furnished to the accused in compliance of Sec.207 of Cr.P.C. Later
the charge was recorded and the accused has pleaded not guilty and
claimed to be tried.
4. The prosecution has cited 14 witnesses in the charge sheet. The
prosecution has got examined PW1 to PW10 and got marked
documents at Ex.P.1 to Ex.P.42.
5. 313 statement of the accused was recorded and the accused have
denied all the incriminating evidence and has not choosen to lead any
defence evidence.
3 CC.NO.16505/2011
6. Heard the learned Sr.APP and counsel for accused.
7. In order to prove the guilt of the accused 14 witnesses are cited
in the charge sheet and the prosecution has got examined PW1 to
PW10. CW1 is examined as PW1 and he in his chief-examination
has deposed that he was working as a Branch Manager during August
2008 to August 2009 and the accused was working as a single window
operator at that time. He has stated that, the accused was authorised to
make payments in cash upto Rs.20,000/- maximum. The accused
could also pass cheques upto Rs.20,000/- and obtain the amounts.
While doing so, she has to first verify the signature of the customer in
the said cheque and should also verify the account and also verify
whether there is sufficient amount in the said account. Accordingly the
accused used to pass the cheques and after making payments used to
handover the cheques to the concerned officer. If the customers were
old aged pensioners then the cheque books were not issued since they
used to put their thumb impressions and when the separate cheques
are requested then on verification of the pass books the cheque slips
were given by making entry in the registers. He has further deposed
that, during 01/04/2009 to June 2009 he suspected the work of the
accused as some of the accounts which were in-operative suddenly
became operative which were pertaining to old pensioners and old age
pension and a detailed verification was conducted and when 2 to 5
accounts addresses were verified on personal visit they were not found
at their addresses however amount was withdrawn from their accounts
4 CC.NO.16505/2011
and some of the accounts holders were dead. The accused has not
cross verified the signatures. Later came to know that the accused
herself has withdrawn the amounts and converted to own use. He has
deposed that the panchanama was prepared as per Ex.P.w and also
identified the original withdrawal slips /cheques Ex.P.4 to Ex.P.19.
Out of them Ex.P.3 to Ex.P.4 were pertaining to Muniswamay, Ex.P.5
to Ex.P.10 pertaining to Sundaramma, Ex.P.11 to Ex.P.14 pertaining to
Muninarayanappa, Ex.P.15 to Ex.P.17 of Munilakshmi, Ex.P.18 and
Ex.P.19 of Yellamma.
8. PW1 is cross-examined by the learned counsel for the accused
and in his cross-examination it is suggested that the misappropriation
has taken place during the tenure of the earlier Manager and hence the
charge list is not produced. However the same is irrelevant since the
incident is pertaining to the time when PW1 was the Manager and the
cheques are pertaining to the period 2009. He has deposed that, only
if the amount is above Rs.20,000/- it will go to the supervisory cash
officer. Another contention taken in the cross-examination is that
cheque issue register is not produced. The production of the cheque
issue register is also of not any help as the question of entering in the
said register did not arise since the fraud was committed by the
accused without the knowledge of others. Even the production of
documents to show that the amount is withdrawn earlier by the
account holders is also irrelevant as the availability of the amounts in
5 CC.NO.16505/2011
the account is reflected in their statement of accounts. Even if the
Accounts are disputed there is no necessity for the Bank Manager to
create such accounts only for the purpose of this case. The accused
has not taken any specific defence that no such accounts were in
existence. Hence, the existence of accounts of Muniswamy,
Sundaramm, Muninarayanappa, Munilakshmi, Yellamma is admitted.
9. PW2 is the witness to Ex.P.2 and she has deposed in support of
the case of the prosecution. She has identified her signature in Ex.P.2
and she has been cross examined by the learned counsel for the
accused and she has stated that she was working as a peon in Vijaya
Bank and retired at present. She has denied that, she signed to Ex.P.2
in the police station and stated that from 9.00 to 4.45 p.m. she used to
be in the bank and the police came at about 4.00 p.m. for the mahazar
and after banking hours the mahazar was drawn and after 4.45 no
documents of the bank were given. It is suggested that no such
mahazar was prepared as stated by PW2 which is denied by PW2.
Hence, she has given corroborative evidence as far as drawing of
Ex.P.2 is concerned.
10. PW3 is the witness and he has also deposed in support of the
case of the prosecution. He has deposed that he was working as Asst.
Manager in Nagappa block and every 6 months the staff used to
change by rotation and he knows the accused and she was working as
clerk cum Cashier. He has deposed that, she had authority to pass
6 CC.NO.16505/2011
cheques upto Rs.20,000/-. She was working in the counter of granting
pension to the elders and it is stated he came to know from the bank
Manager that the accused had forged the sign of the pensioners and
misappropriated the said amount. He has stated that, on the basis of
the say of the bank Manager he is stating that the accused has
misappropriated Rs.1,02,000/- and admitted that he has not verified
any such documents. He has deposed that the accused was authorised
to pass the cheques below Rs.20,000/-. It is suggested that the Branch
Manager himself has misappropriated the amounts of widows and it is
fixed on the accused and only with an intention to help the Manager
he is giving false evidence. However, no separate complaint is given
against the Bank Manger by any official or the accused. In addition
the evidence of PW2 corroborates the evidence of PW1 as to the work
entrusted to the accused to encash cheques upto Rs.20,000/-.
11. PW4 is also the witness who has deposed in support of the case
of the prosecution. She has deposed that, from 2006 to 2010 he was
working as Asst. Manager in Vijaya Bank and at that time the accused
was working as Clerk in single window counter and she had the
authority to pass cheques upto Rs.25,000/- without approval of the
higher officers. The accused was appointed from 01/03/2009 in single
window counter and the widow and old age pension from the
Government used to come to their bank and the accused has forged the
signature and misappropriated the amounts. She has stated that she
signed to the mahazar prepared by the police at the time of receiving
7 CC.NO.16505/2011
the documents and the police have obtained her statements. She had
been cross-examined by the learned counsel for the accused and in the
cross-examination she has denied that the cheques passed by the
accused had come for verification to her. On the other hand, she has
stated that it goes only to the cashier. She had denied that the cheques
passed were handed over to her at the end of the day and denied that
that the manager used to take the cheques and verify the cheques and
give the cheques to the respective persons.
12. She has stated that she does not know whether any other person
had withdrawn the cheques from the said accounts before the alleged
incident. It is admitted that she came to know about the incident from
the bank manager and she has not verified any documents in that
regard. The fact that, PW3, PW4 were unaware of the questioned
transactions till PW1 told them also goes to show that the accused
alone was transacting amounts upto Rs.20,000/- independently. If the
cheques were sent for verification to another official or counter the
questioning of passing the cheques would not arise as most of the
Account holders used to put their signatures and not thumb impression
and specimen order also bear the signatures and not thumb impression
of account holder.
13. The evidence of the complainant and bank officials establish
that the accused was working as the clerk and cashier. All the bank
official witnesses have categorically stated that it was the accused who
8 CC.NO.16505/2011
was working during the requisite period and was authorised to pass
and encash the cheques for an amount not exceeding Rs.20,000/-.
There is no cogent reason elicited in the cross examination to doubt
that the accused was not authorised to pass and encash the cheques for
an amount not exceeding Rs.20,000/-. In addition the fact that the
expert finger print opinion states that the finger print impressions on
the accounts of Muniswamy, Yellamma, Sundaramma tally with that
of the accused corroborate the fact that she herself was entrusted to
pass the cheques for an amount below Rs.20,000/-. If there was some
other official through whom the cheques and withdrawal slips pass
then certainly they would have doubted the finger impressions since
as per the specimen cards Ex.P.20 to Ex.P.22 the account holders were
not at all affixing thumb impressions but have signed in Ex.P.20 to
Ex.P.22.
14. The prosecution has inadvertently not marked the bank
statements of the accounts holders Muniswamy, Sundaramma,
Muninarayanappa, Yellamma, Munilakshmi though the same are
produced along with the charge sheet. However the specimen cards
and the account numbers show the existence of the account of
Muniswamy, Sundaramma, Muninarayanappa, Yellamma,
Munilakshmi. The prosecution has produced the original Ex.P.4 to
Ex.P.19 which also corroborate the case of the prosecution.
9 CC.NO.16505/2011
15. The expert who has given opinion about the finger print is
examined as PW5 and he in his chief-examination has deposed that he
has been working as finger print expert since 1982 and obtained the
requisite training and experienced in the said field for almost 36 years.
He has deposed that, he has examined the questioned finger prints. He
has deposed that he has received 16 withdrawal forms of Vijaya Bank
and also the right and left hand impressions of the accused from the
IO. He has deposed that, he has received 4 left and 4 right hand
impression totally 16 impressions. As per the opinion of the expert
the finger impressions appearing in Withdrawal form No 600651,
(ExP5) (Sundaramma), 601351(ExP9)(Sundaramma), 601106 (ExP11)
(Muninarayanappa), 600650 (ExP15)(Munilakshmi), 601262 (ExP17)
(Munilaksmi), 600948(ExP18) (Yellamma), 600962(ExP19)
(Yellamma) the finger prints are stated to be tallying with the sample
impressions of the accused. It is also opined that the impression on
withdrawal forms No.601108 (ExP16)(Munilakshmi) is tallying with
the sample impressions of the accused. It is also opined that the finger
prints in withdrawal slips No.601491 (ExP4) (Muniswamy), 601124
(ExP6)(Sundaramma), 601166 (ExP7) (Sundaramma), 601260 (ExP8)
(Sundaramma), 601437(ExP10) (Sundaramma), 601308 (ExP11)
(Muninarayanappa), 601403(ExP12) (Muninarayanappa), 601438
(ExP13) (Muninarayanappa) are not fit for examination as they do not
contain required ridges and hence no opinion is given on the finger
prints appearing on the said withdrawal forms. The witness has also
10 CC.NO.16505/2011
identified the photos and seal which are marked as ExP24 to 27. The
withdrawal forms are marked as Ex.P.4 to Ex.P.19. ExP20, 21, 22 are
the specimen signatures of Muniswamy, Sundaramma and Yellamma.
16. PW5 has been cross examined by the learned counsel for the
accused and in the cross examination of PW5 one of the contentions
urged is that there is a necessity of a degree qualification to give
opinion about finger prints which is denied by PW5. He has denied
that the finger prints given to him were smudged on the other hand he
has deposed that he has selected finger prints which were good and
clear. He has deposed that the pressure used while putting impression
is not taken into consideration and the pressure used while putting
impresssion is not material. He has deposed that it is sufficient if 8
ridges tally and he has verified the impression in magnifying glass and
obtained photographs. He has deposed that there is no necessity of
arches, loops and dents to be mentioned in the opinion. The defence
taken by the accused is that the samples were not suitable to give any
opinion. In this regard PW5 has deposed that he has stated which of
the impressions were not suitable in his opinion. He has deposed that
only those areas which were suitable for giving opinion have been
srcutinised by him. Hence PW5 in his evidence has clearly stated that
he has verified only those impressions which were clear and has given
his opinion. There is no reason to doubt the opinion given by PW5 as
he clearly specified the manner of verification and also given his
opinion only on those prints which were found suitable and clear.
11 CC.NO.16505/2011
17. There is no suggestion made in the cross-examination to PW5
that the sample finger prints sent for opinion to tally with the
withdrawal slips are not the sample finger prints of the accused.
There is also no suggestion made to the I.O. in this regard thereby
admitting that the finger prints sent for examination were that of the
accused.
18. PW6 is the witness to ExP30 and she has deposed that the police
had obtained her signature and she has not seen the accused and does
not know why her signatures were obtained and does not know who
else have signed to ExP30. She has deposed that she has not given
any statement to the police. She has been treated as a hostile witness
by the learned Sr APP and permitted to be cross examined however
nothing is elicited in the cross examination in support of the case of
the prosecution. However, PW10 who is the other witness has given
evidence in support of the case of the prosecution.
19. The learned counsel for the accused in the course of arguments
has submitted that there is no evidence to show that the sample finger
prints obtained are that of the accused herself and not others.
However out of the sample finger prints sent almost 50% of the
samples have tallied with the finger print impressions appearing in the
withdrawal slips. There is no necessity for the investigation officer to
take the samples of some third person and falsely implicate the
12 CC.NO.16505/2011
accused by stating them to be her signatures. There is no necessity to
the complainant and investigation officer to let go the real accused and
falsely implicate the present accused by not taking finger print of the
real accused. Hence, there is no merit in the said contention urged by
learned counsel for accused.
20. PW7 is the then Assistant Manager in Vijaya Bank. She has
deposed at that time the accused was working as teller and her work
involved reciepts and payments of cash and other work entrusted by
the manager. She has deposed that old aged pension accounts was also
her responsibility. She has deposed that the accused has affixed her
own finger impression in the withdrawal forms and withdrawn an
amount of almost Rs.1,50,000/-.
21. PW7 is cross examined by the learned counsel for the accused
and in her cross examination she has deposed that she was entrusted
with the SB accounts and other work assigned by the manager. She
has deposed that only withdrawals through cheque or withdrawal slip
exceeding Rs.20,000/- used to come to her for verification. She has
deposed that only if more than Rs.20,000/- was drawn from the
pensioners account it will come to her knowledge.
22. It is the defence taken by the counsel for the accused is that the
staff who was earlier working in the place of accused used to obtain
13 CC.NO.16505/2011
windows payments and converted to own use in collusion with the
Branch Manager and when the accused questioned about the same a
false complaint is given against the accused. However, no such
complaint is given byteh accused against earlier staff and the name is
also not stated who was working earlier to her. There is no merit in
the said defence set up by the accused as the evidence is documentary
in nature and the evidence clearly discloses that it was the accused
who was working in the cash section and was entrusted with receipts
and withdrawals and payments of less than Rs.20,000/- and the finger
prints appearing in the withdrawal slips match with that of the accused
who was the official entrusted with the work in the said section. It is
to be noted that the prosecution has produced the specimen signature
cards of the said accounts pertaining to Ex.P.4 to Ex.P.19 and the
specimen signatures disclose that the deceased account holders had
given their signatures and not thumb impressions. Hence it was the
duty of the accused to verify the signature appearing in the withdrawal
slip and to reject it when found that it does not tally with the signature
in the specimen card. The fact that the withdrawal slips have been
passed clearly goes to show that none of the account holders or any
third person had come to withdraw the amounts by sign in the
withdrawal slips but the accused herself has misused her position and
office and the work entrusted to her and herself withdrawn the
amounts. All the amounts withdrawn are below Rs.20,000/- and
hence certainly there was no occasion for either PW7 or the manager
14 CC.NO.16505/2011
to come to know about the illegal acts of the accused. The accused
had targeted the accounts which were lying inoperative under the
impression that her acts will not come to light. It is only when the
inoperative accounts suddenly became active the complainant
suspected some mischief played in those accounts. The accused has
not stated that she was not at all working in the said branch of Vijaya
Bank at the relevant point of time in the said cash section.
23. It is also suggested to PW7 by the learned counsel for the
accused that it was PW7 herself who suggested to the accused to
withdraw amounts from the accounts without address and those
without any legal heris. The said suggestion indirectly goes to admit
that it was the accused who has withdrawn the amounts through
Ex.P.4 to Ex.P.19 slips of inoperative accounts by affixing her own
finger impressions.
24. PW8 is the then PSI and he has deposed that he obtained the
case file for furhter investigation from CW13 and obtained the FSL
report and filed charge sheet against the accused. He has deposed that
the IO CW13 has died and hence he could not be examined in this
case. He has deposed that CW13 has obtained the complaint Ex.P.1
and identified Ex.P.1, and Ex.P.2 panchanama. In view of the death of
the investigation officer the investigation carried out by him is stated
by PW8 and he has also identified ExP30 and stated that 17
15 CC.NO.16505/2011
documents were seized under the said panchanama. The learned
counsel for the accused has submitted that, the investigation officer
himself is not examined in this case and hence the case of the
prosecution is not proved. However the investigation officer could
not be examined due to his demise which cannot be considered to help
the accused. The investigation carried out by him is already on record
and the same is narrated by Pw8 in his evidence. There is no necessity
for the investigation officer to obtain the finger impression of some
third person and send them to FSL. In addition the finger impression
of not one but more than one account is proved to be of the same
person ie the accused. Hence the fact of using the accounts by the
account holders (Muniswamy, Sundaramma, Muninarayanappa,
Yellamma, Munilakshmi) or some person on their behalf is ruled out.
In addition all the account holders are stated to be dead and their
accounts were inoperative. The bank statements of the accounts
misused reflect that except the transactions on the basis of Ex.P.4 to
Ex.P.19 withdrawals slips there are no other transactions and all the
amounts withdrawn are below Rs.20,000/- to which the accused was
authorised to pass as a bank clerk.
25. PW8 has identified the sign of deceased investigation officer
and also identified ExP24, 28, 29, 33, 34, 35, 36 documents. One of
the contentions taken in the cross examination of PW8 is that the
account holders and their nominees are not examined in this case.
16 CC.NO.16505/2011
Though PW8 has deposed that they were not available for
examination the evidence of the Manager discloses that the said
account holders were dead and their accounts not operative and no
useful purpose will be served in examining the nominees. Here the
accounts were not operative since long time and it was for the
nominees to intimate the bank regarding the death of the account
holders. The nominees come in picture only after the death of the
account holders and they will not be aware of the transactions that
have taken place earlier. It is possible that the nominees themselves
are unaware they are the nominees of the said account. Be it as it may
the examination of the nominees will not in any way help the case of
the accused or to disprove the case of the prosecution.
26. PW9 it the then police constable and he has deposed that on
2/5/10 he has taken the sealed cover containing the finger impressions
to FSL Madivala and obtained receipt and on 03/05/2010 reported to
the police station as per Ex.P.37.
27. PW9 is cross examined by the learned counsel for the accused
and in his cross examination PW9 has deposed that the cover was
sealed and he does not know its contents and he handed it over to FSL
Lab. There is nothing elicited in his evidence to doubt his evidence.
28. PW10 is the witness to Ex.P.29 and Ex.P.30 and he has deposed
in support of the case of the prosecution and stated that the IO had
17 CC.NO.16505/2011
requested him to co-operate for the panchanama and he was present
and the IO obtained the finger prints of the accused and identified
Ex.P.28 and Ex.P.29 and his signature is identified and marked as
ExP.28(c) and Ex.P.29(c). He has deposed that the panchanama was
drawn as per Ex.P.30 and his signature is identified and marked as
Ex.P.30(c). He has stated that he has given his statement to the police.
Hence, the evidence of PW8 is corroborated by the evidence of PW10
and documents Ex.P.29, Ex.P.30.
29. PW10 is cross examined by the learned counsel for the accused
and in his cross examination he has deposed that his house is located
at Nagappa Block, Srirampura and about 7-8 years back he went to the
police station and he does not remember whether he signed before or
after obtaining the sample finger print impression. However he has
stated that the accused was present at the time of preparing the
panchanama. Though there are some discrepancies in the evidence of
PW10 however he has to a larger extent deposed in support of the case
of the prosecution and his presence at the time the panchanama is
satisfactorily established.
30. The prosecution witnesses have all deposed in support of the
case of the prosecution and the evidence of the police officials and the
documentary evidence got marked on the side of the prosecution also
corroborate the case of the prosecution.
18 CC.NO.16505/2011
31. As per Section 408 in The Indian Penal Code : Whoever, being a
clerk or servant or employed as a clerk or servant, and being in any
manner entrusted in such capacity with property, or with any
dominion over property, commits criminal breach of trust in respect of
that property is liable for having committed the said offence.
32. It is not disputed by the accused that she was working in the
Bank during the relevant point of time and that she was entrusted with
cash withdrawal and payments. The only dispute is that even below
Rs.20,000/- the cheques had to be passed by the manager which is
clearly denied by all the prosecution witnesses. The specimen cards
show that the account holders have signed in it and not affixed their
thumb impression. Hence if the questioned cheques passed through
two bank officials there was no occasion to pass the said cheques for
difference in signature. Hence it is due to the fraud of the accused the
cheques have been encashed. The same thumb impression cannot
come in the cheques of different account holders. Admittedly the
finger print impression in all the cheques is not tallied with the
accused however the thumb impression in Ex.P.5, 9, 11, 15, 16, 17, 18,
19 is proved to tally to that of the finger print of the accused.
33. The prosecution has satisfactorily proved that the accused was
working as a clerk cum cashier in the Vijaya Bank was entrusted with
the accounts of the old pensioners and for withdrawal of amounts upto
19 CC.NO.16505/2011
Rs.20,000/- by approving cheques and withdrawal slips and the said
authority is misused by the accused and the converted the amounts
from the accounts to own use thereby committing offence under
section 408 of IPC.
34. In addition, it is proved that out of the withdrawal slips
No.600651, (ExP5) (Sundaramma), 601351 (ExP9) (Sundaramma),
601106 (ExP11) (Muninarayanappa), 600650 (ExP15)(Munilakshmi),
601262 (ExP17) (Munilaksmi), 600948 (ExP18) (Yellamma),
600962(ExP19)(Yellamma) 601108 (ExP16)(Munilakshmi) bear the
finger impressions of the accused. Thereby the accused has committed
the offence of forgery of the withdrawal slips which is a valuable
security and thereby cheated the bank and used the forged withdrawal
slips as genuine and thereby also committed the offences u/s.465, 467,
468, 471 of IPC.
35. As the accused charged for the offence u/s.408, however the
accused was working as Clerk in the Bank which attracts Sec.409.
Sec.409 deals with merely different form of criminal breach of trust,
the general charge being the same. Where the status of the accused
committing the offence of criminal breach of trust happens to be one
wherein the law expects a high degree of honesty and confidence as a
higher sentence is prescribed under Sec.409 but the charge of criminal
breach of trust will remain the same. Hence, the accused cannot be
said to be convicted u/s.409 without having been charged thereunder.
20 CC.NO.16505/2011
Though the charges are framed for the offence u/s.408 of IPC, the
accused was working as Clerk, Cashier in Vijaya Bank and hence the
accused will have to be convicted for the offence u/s.409 of IPC.
Hence, I proceed to pass the following :
ORDER
Accused is convicted u/s.248(2) of Cr.P.C. for the offences punishable u/s.409, 465, 467, 468, 471 of IPC.
Bail bonds of the accused and the surety executed stands cancelled.
Copy of the judgment is ordered to be furnished to the accused.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 6th day of January 2020) (Reshma Jane Rodrigues) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ORDER ON SENTENCE Heard learned Sr.APP and counsel for the accused on sentence.
The learned Sr.APP has submitted to impose sentence in accordance with law and the learned counsel for the accused has submitted to show leniency in imposing sentence taking into 21 CC.NO.16505/2011 consideration the quantum of amount of misappropriation and the antecedents of the accused and also submitted that the accused is regularly attending the court and coming from Mangalore and the matter is already 8 years old.
As per the provisions of Probation of Offenders Act is concerned, the accused was working as a Clerk in a reputed bank and has forged the withdrawal slips / cheques and withdrawn amounts of old pensioners. Hence, taking into consideration the nature of the offence and that it is a Bank on which the public have faith, it is not a fit case to release the accused on probation. In addition, the misappropriated amount is not recovered or remitted by the accused and hence it is just and proper to impose reasonable sentence with fine. Hence, accordingly I pass the following :
ORDER For having committed the offence punishable u/s.409 of IPC accused is sentenced to undergo Simple Imprisonment for 1 year and shall pay a fine of Rs.3,000/- and in default of payment of fine the accused shall undergo Simple Imprisonment for 4 months.
For having committed the offence punishable u/s.465 of IPC accused is sentenced to undergo Simple Imprisonment for 6 months and shall pay a fine of Rs.1,000/- and in default of payment of fine the accused shall undergo Simple Imprisonment for 2 months.22 CC.NO.16505/2011
For having committed the offence punishable u/s.471 of IPC accused is sentenced to undergo Simple Imprisonment for 6 months and shall pay a fine of Rs.1,000/- and in default of payment of fine the accused shall undergo Simple Imprisonment for 2 months.
For having committed the offence punishable u/s.467 of IPC accused is sentenced to undergo Simple Imprisonment for 1 year and shall pay a fine of Rs.3,000/- and in default of payment of fine the accused shall undergo Simple Imprisonment for 4 months.
For having committed the offence punishable u/s.468 of IPC accused is sentenced to undergo Simple Imprisonment for 1 year and shall pay a fine of Rs.2,000/- and in default of payment of fine the accused shall undergo Simple Imprisonment for 4 months.
The substantive sentence shall run concurrently.
Office is directed to furnish copy of the judgment to the counsel for the accused.
IV ACMM, Bengaluru.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : P.Vishwanatha Shetty
23 CC.NO.16505/2011
PW.2 : S.Devaraj
PW.3 : Annegowda
PW.4 : Usharani
PW.5 : Prabhuswamy M.
PW.6 : Chandramma
PW.7 : Mokshadayini
PW.8 : K.Nagaraj
PW.9 : Shivashankarappa
PW.10 : Ravindranath S.
List of exhibits marked for prosecution:-
Ex.P.1 : Complaint Ex.P.2 : Mahazar Ex.P.3 to Ex.P.19 : Original cheques (Withdrawal forms) Ex.P.20 to Ex.P.22 : Original specimen signature cards Ex.P.23 : Certificate Ex.P.24 : Annexure-2 Ex.P.25 : Annexure-4 Ex.P.26 : Photographs relating to Annexure-3 Ex.P.27 : Photographs relating to Annexure-5 Ex.P.28 : Specimen red sheet Ex.P.29 : Specimen red sheet Ex.P.30 : Mahazar Ex.P.31 : Statement of PW6 Ex.P.32 : FIR Ex.P.33 : Left thumb impression of accused Ex.P.33(a) : Signature of deceased Changayya Ex.P.34 : Right thumb impression of accused Ex.P.34(a): Signature of deceased Changayya Ex.P.35 : Left hand signatures of accused Ex.P.35(a) Signature of deceased Changayya Ex.P.36 : Right hand signatures of accused Ex.P.36(a) Signature of deceased Changayya 24 CC.NO.16505/2011 Ex.P.37 : Passport List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:- Nil.
(Reshma Jane Rodrigues) IV Addl. Chief Metropolitan Magistrate, Bangalore.25 CC.NO.16505/2011
06.01.2020 State by Sr.APP Accused For judgement ORDER (Pronounced in open court vide separate order) Accused is convicted u/s.248(2) of Cr.P.C. for the offences punishable u/s.409, 465, 467, 468, 471 of IPC.
Bail bonds of the accused and the surety executed stands cancelled.
Copy of the judgment is ordered to be furnished to the accused.
For hearing on sentence.
(Reshma Jane Rodrigues) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ORDER ON SENTENCE Heard learned Sr.APP and counsel for the accused on sentence.
The learned Sr.APP has submitted to impose sentence in accordance with law and the learned counsel for the accused has 26 CC.NO.16505/2011 submitted to show leniency in imposing sentence taking into consideration the quantum of amount of misappropriation and the antecedents of the accused and also submitted that the accused is regularly attending the court and coming from Mangalore and the matter is already 8 years old.
As per the provisions of Probation of Offenders Act is concerned, the accused was working as a Clerk in a reputed bank and has forged the withdrawal slips / cheques and withdrawn amounts of old pensioners. Hence, taking into consideration the nature of the offence and that it is a Bank on which the public have faith, it is not a fit case to release the accused on probation. In addition, the misappropriated amount is not recovered or remitted by the accused and hence it is just and proper to impose reasonable sentence with fine. Hence, accordingly I pass the following :
ORDER For having committed the offence punishable u/s.409 of IPC accused is sentenced to undergo Simple Imprisonment for 1 year and shall pay a fine of Rs.3,000/- and in default of payment of fine the accused shall undergo Simple Imprisonment for 4 months.
For having committed the offence punishable u/s.465 of IPC accused is sentenced to undergo Simple Imprisonment for 6 months and shall pay a fine of Rs.1,000/- and in default of payment of 27 CC.NO.16505/2011 fine the accused shall undergo Simple Imprisonment for 2 months.
For having committed the offence punishable u/s.471 of IPC accused is sentenced to undergo Simple Imprisonment for 6 months and shall pay a fine of Rs.1,000/- and in default of payment of fine the accused shall undergo Simple Imprisonment for 2 months.
For having committed the offence punishable u/s.467 of IPC accused is sentenced to undergo Simple Imprisonment for 1 year and shall pay a fine of Rs.3,000/- and in default of payment of fine the accused shall undergo Simple Imprisonment for 4 months.
For having committed the offence punishable u/s.468 of IPC accused is sentenced to undergo Simple Imprisonment for 1 year and shall pay a fine of Rs.2,000/- and in default of payment of fine the accused shall undergo Simple Imprisonment for 4 months.
The substantive sentence shall run concurrently.
Office is directed to furnish copy of the judgment to the counsel for the accused.
IV ACMM, Bengaluru.28 CC.NO.16505/2011
Counsel for the accused now has filed application u/s.389(3) of Cr.P.C. seeking for suspension of the judgment and sentence passed by this court as the accused intends to prefer an appeal.
Every offender has the right of appeal. Therefore, under these circumstances the application filed u/s.389(3) of Cr.P.C. is hereby allowed.
The judgment and the sentence passed by this court is hereby suspended for a period of one month on the accused executing personal bond for Rs.50,000/- with one surety for the likesum.
Office to take bonds for accused.
Call on by 13.01.2020.
IV Addl.CMM 29 CC.NO.16505/2011