Bangalore District Court
The State Of Karnataka vs N.C. Mallikarjunaiah on 30 January, 2017
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 30th day of January 2017
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
Crl. Appeal No. 586/2011
Appellant : The State of Karnataka,
Original-Complainant Represented by it's
The Police Inspector,
Fraud Squad, C.O.D. /
Mahalakshmi Layout Police Station,
Bengaluru City.
(By Public Prosecutor)
Vs.
Respondent : N.C. Mallikarjunaiah,
Original-Accused No.2 Aged 57 years,
Ex-Branch Manager, Apex Bank,
West of Chord Road Branch,
Presently working as Manager,
Inspection Department,
Bengaluru.
(By Sri Vipin Kumar Jain, Advocate
for Respondent)
* * * *
JUDGMENT
This is an appeal preferred by the appellant/original- complainant against the respondent/original-accused No.2 U/Sec.378(1)(A) of Cr.P.C., against the impugned-judgment passed 2 Crl. Appeal No.586/2011 by the VIII ACMM Court, Bengaluru, in it's CC No.8411/2000, dated 14.02.2011.
2. The original-complainant before the trial court having preferred the instant-appeal against the original-accused No.2, as the appellant and the respondent, respectively, are hereby assigned with their original-ranks before the trial court i.e., the appellant as the complainant and the respondent as the accused No.2 in the instant-discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
3. This is a criminal-case at CC No.8411/2000 arising-out of the complaint filed by the complainant against the accused- persons for the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC.
4. The epitomized facts projected from the complaint before the trial court run thus:
The accused No.1 being the Cashier and the accused No.2 being the Manager of the Apex Bank, West of Chord Road Branch, Bengaluru, were entrusted with the dominion over the property of the bank in the capacity of public-servant, during the period from 08.01.1985 to 17.12.1985, and thereby committed criminal-breach of trust in respect of the bank-money to the tune of Rs.2,37,500/-
in the course of business of the said bank by forging, and fabricating 11 cheques, with dishonest and fraudulent-intention and also falsified the accounts maintained in the bank in order to conceal the criminal-breach of trust so committed by them and 3 Crl. Appeal No.586/2011 caused the disappearance of cheques and thereby, the accused- person/s has/have committed the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC.
5. Thereafter, the trial court has taken the cognizance of the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC.
6. In response to the summons issued against the accused No.2, he has put-in his appearance before the trial court through his counsel.
7. On moving for bail, the accused No.2 has been released on bail.
8. The copies of the complaint and other-documents were supplied to the accused No.2.
9. After hearing both the sides, the charges for the offences U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC were framed and the same were read-over and explained to the accused No.2 in the vernacular best-known to him.
10. The accused No.2 has denied the same and pleaded not guilty and further claimed to be tried.
11. In order to prove the guilt against the accused No.2, the prosecution has got examined the witnesses, in all, as PWs.1 to 7 and placed the reliance-on the documentations marked at Exs.P.1 to P.101.
12. After the complainant's-evidence was closed, as the incriminating circumstances were arising-out of the evidence of the 4 Crl. Appeal No.586/2011 complainant's-side witnesses, the statements of the accused No.2 under the provisions of Section 313 of Cr.P.C. were recorded.
13. The trial court having heard the arguments advanced by both the learned Sr. APP for the complainant as-well-as the learned counsel for the accused No.2, basing-on the material available on record from the complainant, the trial court has framed the points for it's consideration as under:
(1) Whether the prosecution proves beyond all reasonable-
doubts that the accused No.1 being the Cashier and the accused No.2 being the Manager of the Apex Bank, West of Chord Road Branch, during the period in between 08.01.1985 and 17.12.1985, were entrusted with dominion over the property of the bank and in the capacity of a public-servant and in the course of the business of the bank, committed criminal-breach of trust in respect of money of the bank to the tune of Rs.2,37,500/- and forged and fabricated 11 cheques for the said purpose of committing criminal-breach of trust and with dishonest and fraudulent-intention falsified the accounts maintained in the bank in order to conceal the criminal-breach of trust so committed and with an intention to conceal the criminal-breach of trust, caused disappearance of the cheques, and thereby both the accused have committed the offences punishable under Sections 409, 467, 477(A), 468 & 201 r/w Section 34 of IPC, 1860?
(2) What order?
14. The trial court has given the findings on the points for consideration raised by it, as under:
Point No.1 .. In the Negative.
Point No.2 .. As per the final-order,
for the following.
-------- and thereby acquitted the accused No.2.
15. Being aggrieved by the impugned-judgment passed by the trial court, the appellant/original-complainant before the trial court, has preferred the instant-appeal against the 5 Crl. Appeal No.586/2011 respondent/original-accused No.2 before the trial court, on the following:
GROUNDS OF APPEAL
(a) The judgment and order under the appeal is illegal, arbitrary and the same is passed without considering and appreciating the facts and circumstances of the case properly.
(b) The impugned-judgment passed by the trial court is contrary to the facts, material and evidence placed on record.
(c) The trial court has lost it's sight to consider the detail-
deposition of PW.2 who is the Auditor and 11 cheques which discloses the misappropriation of bank-amount of Rs.2,37,500/- by drawing the same by the accused- persons.
(d) The trial court has lost it's sight to consider that, the accused No.2 has got created the fake-entries in all the books of accounts, namely, long-book, day-book-ledger, cash-scroll and etc., with an intention to cheat the bank.
(e) The trial court has lost it's sight to appreciate the settled principles of law to attract the penal-section 409 of IPC against the accused No.2.
(f) The trial court has lost it's sight to consider the opinion of PW.7/Handwriting-Expert in connection with the handwritings of the accused No.2 by way of initials and signatures in the books of accounts, and etc.
(g) Though there is sufficient-material in favour of the prosecution against the accused No.2 for having committed the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC, the trial court has lost it's sight to appreciate the material available on 6 Crl. Appeal No.586/2011 record in the right perspective and erroneously acquitted the accused No.2.
Hence, prayed for allowing the instant-appeal.
16. Per contra, the respondent/accused No.2 has not filed any counter-objections to the instant-appeal-memo.
17. I have heard the arguments of the learned counsel for the respondent/accused No.2 as-well-as the learned Public Prosecutor for the appellant/complainant.
18. Basing-on the material available on record and grounds of appeal, the points that arise for my consideration are:
(1) Whether the trial court has justified in negating the Point No.1 raised for it's consideration holding that the prosecution has utterly failed to prove the alleged offences punishable U/Secs.409, 467, 468, 477-A & 201 r/w Section 34 of IPC against the accused No.2 beyond the shadow of all the reasonable-doubts and thereby, acquitted the accused No.2?
(2) Whether the impugned-judgment of the trial court is arbitrary, baseless, capricious, devoid of merits, erroneous, frivolous and perverse without being on the sound-
principles of law and warrants for the interference by the instant-court?
(3) To what order?
19. The findings on the above points are as under:
Point No.1 .. In the Affirmative.
Point No.2 .. In the Negative.
7 Crl. Appeal No.586/2011
Point No.3 .. As per the final-order, for
the following:
REASONS
20. The status and ranking assigned in the trial court to the complainant and the accused No.2 are being adopted and adhered- to in the instant-discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
21. Point No's.1 & 2:- To avoid the reiteration of the material available in hand and to appreciate the evidence adduced before the trial court, in a better-position, I hereby take-up the instant Point No's.1 & 2 together admixingly for discussion.
22. It is the specific-contention of the complainant by way of his complaint that, the accused No.1 being the Cashier and the accused No.2 being the Manager of the Apex Bank, West of Chord Road Branch, Bengaluru, was entrusted with the dominion over the property of the bank in the capacity of public-servant, during the period from 08.01.1985 to 17.12.1985, and thereby committed criminal-breach of trust in respect of the bank-money to the tune of Rs.2,37,500/- in the course of business of the said bank by forging, and fabricating 11 cheques, with dishonest and fraudulent-intention and also falsified the accounts maintained in the bank in order to conceal the criminal-breach of trust so committed by them and caused the disappearance of cheques and thereby, the accused-person/s has/have committed the offences 8 Crl. Appeal No.586/2011 punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC.
23. To substantiate it's case, the prosecution has got examined the evidence of the witnesses, in all, as PWs.1 to 7, in which CW.1 is examined as PW.1/D.E. Puttaraju, who was the Manager in Karnataka State Co-operative Apex Bank, West of Chord Branch, Bengaluru, during the year 1993; CW.2 is examined as PW.2/Mohammed Samiulla, who was working as internal-auditor for the period from 11.10.1990 to 30.06.1995 in the Apex Bank, West of Chord Road Branch, Bengaluru; CW.3 is examined as PW.3/Ramanna Gowda, who is the account-holder of the said Apex Bank, West of Chord Road Branch, Bengaluru; CW.10 is examined as PW.4/V. Shekar, who is the investigating- officer in respect of the initial-stage for the investigation; CWs.13 & 12 are examined as PW.5/E.A. Baig & PW.6/B.G. Kavatekar, respectively, who are the investigating-officers and submitted the charge-sheet, and CW.9 is examined as PW.7/Lakshminarayana, who is the Handwriting-Expert from FSL, Bengaluru, and thereby placed the reliance-on the documentations marked at Exs.P.1 to P.101, in which Ex.P.1 is the certified-copy of complaint, Ex.P.2 is the inspection-report, Ex.P.3 is the carbon-copy of clearing- settlement-sheet, Ex.P.4 is the transfer-credit-slip, Ex.P.5 is the long-book, Ex.P.6 is the transfer-debit-slip, Ex.P.7 is the bill- collection-register, ExP.8 is the transfer-debit-slip, Ex.P.9 is the general-ledger, Ex.P.10 is the attendance-register, Ex.P.11 is the 9 Crl. Appeal No.586/2011 carbon-copy of clearing-settlement-sheet, Ex.P.12 is the transfer- credit-slip, Ex.P.13 is the transfer-debit-slip, Ex.P.14 is the carbon-copy of clearing-settlement-sheet, Ex.P.15 is the transfer- credit-slip, Ex.P.16 is the ledger, Ex.P.17 is the cheque, Ex.P.18 is the account-ledger-sheet, Ex.P.19 is the carbon-copy of clearing- settlement-sheet, Ex.P.20 is the transfer-credit-slip, Ex.P.21 is the carbon-copy of clearing-settlement-sheet, Ex.P.22 is the transfer- credit-slip, Ex.P.23 is the carbon-copy of clearing-settlement-sheet, Ex.P.24 is the transfer-credit-slip, Ex.P.25 is the transfer-debit- slip, Ex.P.26 is the bill-collection-register, Ex.P.27 is the day-book, Ex.P.28 is the general-ledger, Ex.P.29 is the clearing-settlement- sheet, Ex.P.30 is the cheque, Ex.P.31 is the transfer-debit-slip, Ex.P.31 is the clearing-settlement-register, Ex.P.32 is the cheque, Ex.P.33 is the transfer-credit-slip, Ex.P.34 is the account-ledger, Ex.P.35 is the clearing-settlement-register, Ex.P.36 is the cheque, Ex.P.37 is the transfer-credit-slip, Ex.P.38 is the account-ledger, Ex.P.39 is the carbon-copy of clearing-settlement-sheet, Ex.P.40 is the cheque, Ex.P.41 is the transfer-credit-slip, Ex.P.42 is the carbon-copy of clearing-settlement-sheet, Ex.P.43 is the cheque, Ex.P.44 is the transfer-credit-slip, Ex.P.45 is the carbon-copy of clearing-settlement-sheet, Ex.P.46 is the cheque, Ex.P.47 is the transfer-credit-slip, Ex.P.48 is the carbon-copy of clearing- settlement-sheet, Ex.P.49 is the cheque, Ex.P.50 is the transfer- credit-slip, Ex.P.51 is the carbon-copy of clearing-settlement-sheet, Ex.P.52 is the cheque, Ex.P.53 is the transfer-credit-slip, Ex.P.54 10 Crl. Appeal No.586/2011 is the carbon-copy of clearing-settlement-sheet, Ex.P.55 is the cheque, Ex.P.56 is the transfer-credit-slip, Ex.P.57 is the carbon- copy of clearing-settlement-sheet, Ex.P.58 is the transfer-credit- slip, Ex.P.59 is the transfer-debit-slip, Ex.P.60 is the carbon-copy of clearing-settlement-sheet, Ex.P.61 is the cheque, Ex.P.62 is the transfer-credit-slip, Ex.P.63 is the carbon-copy of clearing- settlement-sheet, Ex.P.64 is the cheque, Ex.P.65 is the transfer- credit-slip, Ex.P.66 is the carbon-copy of clearing-settlement-sheet, Ex.P.67 is the transfer-credit-slip, Ex.P.68 is the transfer-debit- slip, Ex.P.69 is the carbon-copy of clearing-settlement-sheet, Ex.P.70 is the transfer-credit-slip, Ex.P.71 is the transfer-debit- slip, Ex.P.72 is the carbon-copy of clearing-settlement-sheet, Ex.P.73 is the transfer-credit-slip, Ex.P.74 is the transfer-debit- slip, Ex.P.75 is the carbon-copy of clearing-settlement-sheet, Ex.P.76 is the transfer-credit-slip, Ex.P.77 is the transfer-debit- slip, Ex.P.78 is the copy of First Information Report, Ex.P.79 is the transfer-credit-slip, Ex.P.80 is the transfer-debit-slip, Exs.P.81 to P.98 are the copies of specimen-signatures and initials of accused No.2, Exs.P.99 & P.100 are the leave-letters and Ex.P.101 is the copy of certificate issued by the Handwriting-Expert.
24. To rebut the case of the complainant-prosecution, the accused No.2 has failed to adduce the rebuttal oral-evidence nor placed his reliance-on the documentations.
25. On marshalling the available material on record inclusive of the oral as-well-as documentary-evidence from the 11 Crl. Appeal No.586/2011 complainant/prosecution's-side, it is clear that, there are the allegations against the instant accused No.2, in respect of he having committed the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC and the trial court has acquitted him accordingly, for the said offences.
26. Prior to harping-upon the merits of the case, it is pertinent to make it clear that, during the lis pendence before the trial court, the accused No.1 having been stated to have demised, the said case came to be abated against the accused No.1, wherefore, the trial court has decided and pronounced the acquittal-judgment only against the accused No.2 who was available for the trial and decision on merits.
27. At the very outset, there is no dispute as to the factum that the accused No.2 was serving as Manager of the said Apex Bank, West of Chord Road Branch, Bengaluru, during the said relevant-period from 08.01.1985 to 17.12.1985 being the authority, having the overall control over the bank-transactions during the said period, with the dominion over the money and books of accounts of branch.
28. As per the bank-rules, the procedure of clearing- transaction will be of such a peculiar manner that, at the very outset, the drawee of the cheque in whose favour the cheque has been issued, will be presented along-with a challan containing the counterfoil, with his banker, called as presenting-bank, whereby such presenting-bank in-turn returns the counterfoil to the drawee 12 Crl. Appeal No.586/2011 by retaining the challan and thereafter, the presenting-bank sends the same along-with challan with the schedule containing particulars of cheque to the Head-Office of the said bank, by effecting the entries in the outward-register and on receiving the said cheque by the Head-Office, it effects the entries in the clearing long-book which sends the same along-with challan and schedule of the presenting-bank to the clearing-house of RBI, whereby the said clearing-house of RBI after effecting the relevant-entry in the concerned register sends the same to the Head-Office of the Apex Bank which also effects the entry in the clearing-long-book in the clearing-section therein and thereafter, the Head-Office of the Apex Bank sends the said cheque along-with it's slip and schedule of presenting-bank to the concerned branch from which the amount is to be withdrawn and credited to the account of the drawee, maintained in the presenting-bank. On receiving such cheque in clearance, the concerned bank branch which will honor the cheque if the amount is found in the account of drawer for honoring the cheque and the amount will be debited from the account of the drawer and credited to the current-account of the Apex Bank, Head-Office in RBI, subsequently and then will be credited to the current-account of the Head-Office of the presenting-bank after the amount is debited from the current-account of the presenting-bank and thereby, the amount will be credited to the account of the drawee i.e., the person who had presented the said cheque for clearing.
13 Crl. Appeal No.586/2011
29. This procedure appears to have been absolutely relied-on by the trial court in the right perspective to deal with the entire- case to arrive-at a conclusion, wherefore, the said procedure having some bearing, considering it as an essential at this stage as readymade-reckoner for better-reference and appreciation of the material available on record in pursuance with the same, is culled- out herein before supra, in nutshell.
30. It is an undisputed fact that the accused No.2 was the Manager of the said Apex Bank, West of Chord Road Branch, Bengaluru, during the said relevant-period, wherefore, he being the authority was having control over the banking-transactions, during the said period with the dominion over the money and registers and etc.
31. It is the specific allegation of the prosecution that the accused has forged and fabricated the 11 cheques, which are marked as per Exs.P.17, P.32, P.36, P.40, P.43, P.46, P.52, P.55, P.61 & P.64 with corresponding transfer-debit-slips marked at Exs.P.6, P.13, P.25, P.31, P.59, P.68, P.71, P.74, P.77 & P.80 and the corresponding transfer-credit-slips marked at Exs.P.4, P.15, P.12, P.20, P.22, P.24, P.30, P.33, P.47, P.37, P.41, P.44, P.50, P.53, P.56, P.58, P.62, P.65, P.67, P.70, P.79, P.73 & P.76, depicting as if by receiving the said disputed 11 cheques for clearance purpose from the respective-accounts and thereby, misappropriated the same.
14 Crl. Appeal No.586/2011
32. When that is so, it is incumbent-upon the prosecution to establish as to whether the said Apex Bank received the said disputed 11 cheques in clearing from the presenting-bank?. Basically, the absolute burden lies-on the prosecution with respect to this particular aspect.
33. Admittedly, on percolation of the entire-material available on hand, neither the outward-register of the presenting- bank, nor the clearing-long-book maintained in the clearing- section of the head of the presenting-bank, nor the inward and outward-registers of the Head-Office of the presenting-bank, nor the inward and outward-registers of clearing-house of the RBI, nor the long-book maintained at the clearing-house of the RBI, nor the inward and outward-registers of clearing-section of the Head-Office of Apex Bank, nor the clearing-long-book maintained at the Head- Office of Apex Bank, nor the inward-register of the branch, nor the slips along-with the cheques in question, of the Head-Office find place. Apart from the same, admittedly, none of the officials from the presenting-bank or from clearing-house of Apex Bank or from Head-Office, who were working during the said relevant-spell, have been examined.
34. In addenda of the same, it is also clearly admitted by the PW.2 that the statutory-auditor has audited the accounts of the said Apex Bank, West of Chord Road Branch, Bengaluru, and submitted his audit-report. But, unfortunately, either the said audit-report or it's copy in respect of the relevant-point of spell 15 Crl. Appeal No.586/2011 finds place on record. Unfortunately, even the said auditor has not been examined in connection with the accounts, during the relevant-point of spell.
35. It is further burden on the prosecution to prove the forgery and fabrication of the said disputed 11 cheques by the accused No.2.
36. With respect to the same, the prosecution has got examined the PW.7 who is none-other than the Handwriting- Expert, has endeavored to depose in favour of the prosecution palpitating with his handwriting-report which is already marked as per Exs.P.62 & P.63, in which it has been clearly opined that the writings therein the afore-stated corresponding transfer-debit-slips and transfer-credit-slips are of the accused No.1. Moreover, according to the very-versions of the PW.2, the initials and signatures in the said disputed 11 cheques, afore-stated corresponding transfer-debit-slips and corresponding transfer- credit-slips, are of the accused No.2.
37. Therefore, it is an admitted fact that the PW.2 has not worked with the accused No.2 and never seen the signing or putting the initials by the accused No.2 personally. But, unfortunately, the PW.2 has deposed that, he is conversant with the initials and signatures of the accused No.2 as he has come across with the same, from several-correspondences of the accused No.2. But, unfortunately, no substantial-documentary-evidence stated to be such disputed correspondence finds place on record. 16 Crl. Appeal No.586/2011 It is no doubt the attendance-register finds place on record in which the initials of the accused No.2 are appearing resembling to the said disputed-signatures on the said 11 cheques and corresponding transfer-debit-slips and transfer-credit-slips. But, in respect of the same, the Handwriting-Expert who has been got examined as PW.7 has issued his report as per Ex.P.101 expressing his opinion in unequivocal-terms to the effect that it is not possible to fix the authorship of questioned initials on the said 16 disputed-cheques.
38. In view of the same, the trial court appears to have been inclined to exercise the powers conferred-upon it under the provisions of Section 73 of the Indian Evidence Act, 1872 to compare the initials with respect to which it has found that the said disputed cheques were bearing the disputed- signatures/initials resembling the initials of the accused No.2 were made in an unusual-course under some-pressure and to due exertion of pressure with shivering-hands and therefore, the said initials are not found to be belonging to the accused No.2.
39. It is pertinent to note that, even-otherwise, if the said observation made by the trial court with respect to the invocation of it's powers U/Sec.73 of the Indian Evidence Act, 1872 and comparative-analysis made there-under with regard to the disputed-initials on the said disputed 11 cheques, and etc., are kept-in exclusion for a moment and considered the very oral- evidence of the PWs.2 & 7 coupled-with Ex.P.101, it clearly goes to 17 Crl. Appeal No.586/2011 imply that there is no substantial-evidence to the effect that the accused No.2 himself has forged the said disputed 11 cheques, and etc. But, on the other-hand, it could be presumed that the said cheques might have been initialed by the accused No.1 resembling the said disputed-initials with the initials of the accused No.2, if really the said disputed 11 cheques have been received by the accused No.1. But, the same have remained absolutely behind and back of the accused No.2 without his knowledge, as for the reasons stated herein before supra, they have not been received in due process of bank-procedure. Even, none of the officials have been examined by the prosecution, who have actually seen the accused No.2 signing or putting his initials on the said disputed-cheques, transfer-debit-slips and transfer-credit-slips.
40. Therefore, under all these circumstances, it is crystal clear that the prosecution has utterly failed to establish either receiving of the said disputed-cheques, transfer-debit-slips and transfer-credit-slips in due process of banking-procedure or the initials appearing thereon, are belonging to the accused No.2 or his role in the alleged forgery and fabrication of the said disputed- cheques, transfer-debit-slips and transfer-credit-slips and also the knowledge regarding the alleged withdrawal of the said amount under the disputed 11 cheques, and etc., with the alleged misappropriation of amount by way of criminal-breach of trust.
41. Therefore, under the circumstances prevailing herein, the alleged said allegations of the prosecution against the accused 18 Crl. Appeal No.586/2011 No.2 that he is guilty of forgery and fabrication of the cheques and also the alleged withdrawal-amount thereupon, are absolutely unacceptable and unreliable in the lack of substantial chunk of material for the reasons stated herein before supra.
42. It is no doubt, the PW.2 has deposed that the accused No.2 had knowledge of the encashment of the disputed-cheques by the accused No.1, which can be confirmed from the day-books, long-books, general-ledger and other-ledgers. But, there is the absolute lack of substantial-evidence to disclose that, either the accused No.1 or any other-officials having shown the said cheques in question to the accused No.2 and even there is no any kind of evidence to that effect on record, wherefore, the said-version of the PW.2 does-not carry any creditworthiness to rely-upon and believe the same against the accused No.2.
43. Even, there is no substantial iota of evidence from the prosecution with regard to the allegation of the prosecution that the accused No.2 were having the knowledge as to withdrawal of the amounts on the disputed-cheques. In the ordinary-course of bank-transaction, the entries in the registers will be made by the staff, admittedly. In respect of the same, the concerned bank-staff would be appropriate and befitted witnesses to say as to whether the entries have been effected in the clearing-register, long-book, day-book and general-register, at the instructions of the Manager or otherwise, and similarly in the instant-case also, the concerned bank-staff would be the proper-witnesses to depose regarding the 19 Crl. Appeal No.586/2011 entries effected by him in the said books of accounts at the instructions of the instant-accused No.2. But, with respect to the same, none of the concerned bank-staff has been got examined with respect to the same.
44. It is an admitted fact that, the accounts of the said Apex Bank were checked by the internal-checkers and reported to the internal-auditors. If really there was any tracing-out of the misappropriation, then it was for the internal-checkers to report the same to the respective internal-auditors, who would have in- turn submitted the report to the Director of the Co-operative Audit, more-specifically, with regard to the alleged misappropriation and disclose the same in the balance-sheet for the relevant-years.
45. In connection with the same, neither the observations nor the report of internal-checker nor the audit-report of the statutory-auditor nor the findings of the Director of the Co- operative Audit for the relevant-period, find place on record. In addition to the same, neither the internal-checker nor the internal- auditor have also been examined. Therefore, there is no substance in the alleged allegations made against the accused No.2.
46. If really the disputed-cheques were received by the Apex Bank, West of Chord Road Branch, Bengaluru, from the various banks for clearing purpose, then the question of colluding by the accused No.2 with the accused No.1 to forge the said alleged cheques, would have never arised at-all.
20 Crl. Appeal No.586/2011
47. If the amounts of the disputed-cheques were credited to the account of the Head-Office of the Apex Bank as per the transfer-credit-slips, then there was no chance to the accused No.2 to misappropriate the same.
48. It is the specific-contention of the prosecution that the said amounts have been withdrawn by the accused No.2 himself. But, there is no evidence from the prosecution's-side that the said amount mentioned in the disputed-cheques were withdrawn either by the actual account-holders or by some fictitious-persons at the presenting-banks because, there is no substantial-evidence that the amount so depicted on the basis of disputed-cheques, transfer- debit-slips and transfer-credit-slips from the accounts of the concerned account-holders and credited to the accounts of the drawees at the presenting-banker and the said amounts were withdrawn by such account-holders in whose favour the said disputed-cheques were issued.
49. It is further urge of the prosecution that the entries in the clearing-register would suffice regarding the receipt of the said disputed-cheques. But, in view of the another-contention of the prosecution that the amounts were withdrawn and paid at the Head-Office goes to imply that there was no any scope for the accused No.2 either to fabricate the disputed-cheques or to misappropriate the alleged amount, wherefore, the said urge does- not prevail with any creditworthiness.
21 Crl. Appeal No.586/2011
50. The prosecution has urged dichotomically to the effect that, on one-hand, the disputed-cheques were received by the accused No.2 from the presenting-bank under the clearance, whereas, on the other-hand, the accused themselves have misused the cheques in their custody; but in respect of the alleged custody of the disputed 11 cheques with the accused No.2, no iota of evidence is forthcoming on record. Therefore, two different-versions of the prosecution as stated herein before supra, are prevailing in contravention with each-other. The prosecution cannot sail in two- boats at a time. Therefore, the said urge on the prosecution holds no water.
51. On overall consideration of the oral-evidence of the prosecution-witnesses coupled-with the documentations relied- upon by the prosecution, it is crystal clear that the entire-case of the prosecution is prevailing with the plethora of major- discrepancies along-with the suspicious circumstances creating the fatal-doubts in the mind of this court, wherefore, the instant- court cannot arrive-at a conclusion to hold the accused No.2 is guilty of the alleged offences.
52. Apart from the same, to put-into simple-terms, there is no iota of evidence on record with respect to the alleged misappropriation of the amount by way of criminal-breach of trust, fabrication and forgery, and destruction of the documents. When that is so, the accused No.2 cannot be held as guilty for the said alleged offences.
22 Crl. Appeal No.586/2011
53. Even, it is a well-settled principle of law, reported in 1974 Cri.L.J. 625 in a case between State of U.P. Vs. Jasoda Nandan Gupta & others; and 1981 SCC (Cri) 375 in a case between Tara Singh Vs. State of M.P., in which it is held that, when two views are possible, the accused is entitle for an acquittal.
54. Therefore, in the lack of substantial-evidence from the prosecution's-side, the accused No.2 cannot be held as guilty of the alleged offences punishable U/Secs.409, 468, 467, 477(A) & 201 r/w Section 34 of IPC, in respect of which the trial court has discussed at much-length all the afore-narrated aspects in it's judgment on the sound-principles of law without there-being any errors or infirmities, in respect of which the instant-court also being in agreement, the said trial court's judgment does-not deserve for warranting the interference by the instant-court.
55. Therefore, with these observations, this court is inclined to answer the Point No.1 in the 'Affirmative' and Point No.2 in the 'Negative'.
56. Point No.3:- For the reasons discussed at much-length herein before supra, while answering the Point No.1 in the Affirmative and Point No.2 in the Negative, this court is inclined to proceed to pass the following:
O R D E R The instant criminal-appeal preferred by the appellant/original-complainant against the respondent/original- accused No.2 U/Sec.378(1)(A) of Cr.P.C., against the impugned- judgment passed by the VIII ACMM Court, Bengaluru, in CC No. 23 Crl. Appeal No.586/2011 8411/2000, dated 14.02.2011, is hereby dismissed by upholding and confirming the trial court judgment.
Send the entire LCRs to the trial court, along-with the copy of the instant-judgment immediately, without causing any delay.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 30th day of January, 2017) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.24 Crl. Appeal No.586/2011
(Judgment pronounced in the open-court. Operative-portion of the same is extracted as under) ORDER The instant criminal-appeal preferred by the appellant/original-
complainant against the respondent/original-accused No.2 U/Sec.378(1)(A) of Cr.P.C., against the impugned-judgment passed by the VIII ACMM Court, Bengaluru, in CC No. 8411/2000, dated 14.02.2011, is hereby dismissed by upholding and confirming the trial court judgment. Send the entire LCRs to the trial court, along-with the copy of the instant-judgment immediately, without causing any delay. LI Addl. City Civil & Sessions Judge, Bengaluru City.