Bangalore District Court
State By Cbi/Acb vs Shri. B. Dinesh on 30 March, 2022
KABC010025522018
IN THE COURT OF THE XLVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE FOR
CBI CASES AT BENGALURU CITY (CCH-47).
PRESENT: SRI SANTHOSH GAJANAN BHAT, B.A.L., LL.B.,
XLVI Addl. City Civil and Sessions Judge &
Special Judge for CBI Cases, Bengaluru.
DATED THIS THE 30 th DAY OF MARCH 2022
Spl. C.C. No. 59/2018
Complainant : State by CBI/ACB, Bengaluru
(By Smt. K.S.Hema,
Public Prosecutor)
V/s
Accused : Shri. B. Dinesh
S/o B. Shankarananda,
Aged about 61 years,
the then Head Cashier,
State Bank of India,
(erstwhile known as State
Bank of Mysore),
Periyapatana Branch,
Mysore District.
(By Sri.B.O.Chandrashekar-Adv.
for accused)
Date of Offence 08.11.2016 to 23.11.2016
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Spl.C.C.No.59 of 2018
Date of report of offence 28.02.2017
Date of arrest of accused 19.02.2018
Date of release of accused on 21.02.2018
Bail
Total period of custody 3 days
Name of the Complainant K.Srinivas
Date of Commencement of 24.06.2019
recording evidence
Date of closing of evidence 26.11.2021
Offences complained of under Sec. 409, 477(A) of IPC
and Under Sec. 13(2) r/w
Sec.13(1)(c) and (d)(iii) of
Prevention of Corruption Act,
1988.
Opinion of the Judge Convicted
Date of Judgment 30.03.2022
JUDGMENT
The Inspector of Police of CBI/ACB, Bengaluru has filed the charge sheet against the accused person contending that he has committed the offences punishable under Sec. 409, 477(A), of IPC and Under Sec. 13(2) r/w Sec.13(1)(c) and (d)(iii) of Prevention of Corruption Act, 1988.
2. It is the case of the Prosecution/Complainant that the accused was working as Head Cashier at State Bank of 3 Spl.C.C.No.59 of 2018 Mysore, Periyapatna branch during the year 2016-17 and at that point of time due to demonitization scheme of the Central Government various circulars were issued by the Central Government demoinitizing currency notes of the denominations of Rs500/- and Rs1000/- ( hereinafter called as Specified Bank Notes/SBN) The accused at that point of time without following the guidelines and circulars issued by the RBI and the central Government had flouted the same by using SWAP method wherein certain denominations were erroneously entered in the IN register of the Bank in the Teller receipts/payment cash register and had exchanged the SBN with legal tender notes and further he had shown deposits being made by the customers in excess of the amount they had deposited and had exchanged the SBN with legal tender and had caused loss to the exchequer to an extent of Rs.2,18,46,300/-. The said aspect was brought to the notice of the higher authorities of the Bank by the then Branch Manager at Periyapatana and on the basis of the same the Regional Office had deputed PW-3 D Santhesh and Suresh Bellubi to enquire into the same. They had furnished a report indicating that the accused had illegally exchanged the currency 4 Spl.C.C.No.59 of 2018 notes during the period of demonetization in derogation of the circulars issued by the RBI and central Government. Hence, the concerned authorities of the Bank had decided to lodge a written information in this regard and accordingly a complaint came to be lodged, on the basis of which FIR was registered. Subsequently after the registration of FIR the investigating officer had commenced the investigation and had verified the internal inspection report submitted by the officer appointed by the bank to verify the accounts during the period i.e. 08.11.2016 to 23.11.2016. Further as per the statement of witness it was noticed that the accused had indulged in swapping of currency notes in derogation of the guidelines of the RBI and Government of India and as such the charge sheet came to be filed. On perusing the entire charge sheet, the court had found that there were necessary materials to take cognizance against the accused person and as such necessary cognizance came to be taken against the accused. On taking of cognizance the accused was subpoena before the court and accordingly he was summoned. The accused had appeared before the court and was admitted to bail. The copy of the 5 Spl.C.C.No.59 of 2018 charge sheet was furnished to the accused and hence the provision of Sec.207 of Cr.P.C. was complied with. The accused had submitted that the charges may be framed and accordingly necessary charge came to be framed. The charges were read over and explained to the accused who had pleaded not guilty and claimed to be tried. The prosecution in order to prove their case had got examined totally 40 witnesses and had got marked Exhibits P.1 to Exhibits P.164. On the completion of the prosecution evidence, the statement of the accused came to be recorded as contemplated under section 313 of Cr PC. The Accused had denied all the incriminating materials which was put forth to him and has submitted that a false case was foisted against him. Further had had submitted that there was no defence evidence on his behalf. Hence the case was posted for arguments.
3. The Learned Public Prosecutor has vehemently argued that the evidence which is placed before the court would clearly indicate that the accused was the head Cashier at that point of time and there is not much dispute with respect to the 6 Spl.C.C.No.59 of 2018 same. Further it is also been stated that the act of the accused person wherein he was incharge of the cash transaction during the above said period would clearly indicate the entrustment of work to him and also the documents which were recovered by the CBI authorities during he course of investigation and also the marking of the same at the time of trial would justify the case of prosecution. It has been argued at length by the learned Public Prosecutor that the Pay-in-slip which was submitted by the customers consisted of the denominations which they were remitting to the Bank, however in the cash register extract maintained by the Bank the denominations were changed so as to exchange the SBN with legal tender. Though the tally at the end of the day would be the same, in reality the accused had exchanged SBN with legal tender notes which was against the Government policy of demonetization. Lastly she has submitted that even if it is accepted for the sake of arguments that the accused was under undue pressure during the demonetization period the same would not be suffice to arrive at a conclusion that the act of the accused was required to be exonerated and hence she has sought to consider the same and accordingly 7 Spl.C.C.No.59 of 2018 convict the accused person for the above said offences since his act of defrauding the . Last but not the least she has also submitted that the Accused himself had admitted of committing the offence before the Bank officials and he had voluntarily and out of free will had admitted the same and executed the letter which was marked as EX P-8. The learned Public Prosecutor by relying upon the same has submitted that the same amounts to extra judicial confession and the same was proved by the prosecution. Hence the court may rely upon the same and acting on the same the court may proceed to convict the accused person. In order to justify her contention she has relied upon the following authorities which are :-
a. Sri Krishan Kumar Vs. Union of India Reported in AIR 1959 SC 1390.
b. State of Kerala Vs. Sebastian Jacob Reported in 1991 Cri.L.J.2636.
c. Shivaraj Singh Vs. Delhi Administration Reported in AIR 1968 SC 1419.
d. Mustafi Khan Vs. State of Maharastra Reported in (2007) SCC 623.
e. N Bhargavan Pillai (dead) by LRS and another Vs. State of Kerala Reported in (2004) 13 SCC 217. 8
Spl.C.C.No.59 of 2018 f. Jiwan Das Vs. State of Hariyana g. T Retna Das Vs. State of Kerala Reported in 1999 Crl.L.J. 1488.
h. State of Karnataka Vs. Suvarnamma and another. I. State of Maharastra Vs. Wasudeo Ramachandra Kaidalwar Reported in (1981) SCC 1999. j. State of Punjab Vs. Kuldeep Prakash Reported in (1981) 3 SCC 207 k. M. Narayanan Nambiar Vs State of Kerala Reported in AIR 1963 SC 1116 l. Balbir Singh Vs.State of Punjab Reported in (1999) SCC 30 m. Kusuma Ankama Rao Vs. State of Andhra Pradesh Reported in (2008) 13 SCC 257 n. Chandran @ Mani Chan @ Maniyan Vs. State of Kerala Reported in Crl.Appl.1528/2005 dated 04.04.2011.
0. R. Venkata Krishnan Vs. CBI Reported in (2009) 11 SCC 737
4. Per contra the learned counsel appearing for the Accused has submitted before the court that the allegations which were leveled were not correct and also the document at Ex.P.8 did had any evidential value and also the cross 9 Spl.C.C.No.59 of 2018 examination of P.W. 3 at Para No.57 that the SWAP method cashiers to carry the physical cash at that point of time. Further it has been submitted that the detailed enquiry should have been made by the enquiry officer i.e. P.W. 3 Santesh. However the enquiry officer had not conducted the same in proper manner and the report which has been furnished was not in accordance with the procedures established. It is also been submitted that no inferences can be drawn under criminal law with respect to any commission of offence. It is also been argued that the court has to take in to account of the situations which were prevailing during the period of demonetization and also the rush of work which the Head Cashier used to face at that point of time. Hence the charges which were framed against him was not proved in accordance with law. Accordingly he has sought for acquittal of accused person.
5. On the basis of the rival contentions urged by both the parties, the points that would arise for my consideration are as follows:-
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Spl.C.C.No.59 of 2018
1) Whether the prosecution proves beyond all reasonable doubt that the sanction accorded under Sec.19(1)(c) of Prevention of Corruption Act is in accordance with law ?
2) Whether the prosecution proves beyond all reasonable doubt that during the demonetization period from 10.11.2016 to 23.11.2016 the accused who was the Head Cashier at the then State Bank of India, Periyapatna Branch had exchanged demonetized currency notes of Rs.500/- and Rs.1,000/- fraudulently with an intention to cheat and defraud by manipulating deposit slips of customers to an extent of Rs.2,18,46,300/- and misappropriated the amount by way of criminal breach of trust and thereby committed an offence punishable u/S.409 of IPC?
3) Whether the prosecution proves beyond all reasonable doubt that during the said period accused had exchanged demonetized currency notes (SBNs) of Rs.500/- and Rs. 1,000/- with Legal Valid Tender Currency Notes by manipulating the deposit slips and also altered number of Currency Notes mentioned by the genuine customers and falsified the accounts and thereby had committed an offence punishable u/S.477-A of IPC?
4) Whether the prosecution proves beyond all reasonable doubt that the accused being a Head Cashier at State Bank of Mysore during the demonetization period had exchanged the Legal Valid Tender Currency Notes for demonetized Currency notes by corrupt or illegal means to obtain pecuniary advantage for himself without any public interest and by 11 Spl.C.C.No.59 of 2018 abused powers to an extent of Rs.2,18,46,300/- and thereby committed an offence of Criminal mis-conduct punishable u/S.13(2) R/w. Sec.13(1)(c) & (d) (iii) of Prevention of Corruption Act, 1988?
5) What Order ?
6. My findings on the above points are as under:-
Point No.1: In the Affirmative. Point No.2: In the Affirmative. Point No.3: In the Affirmative. Point No.4: In the Affirmative. Point No.5: As per the final order for the following:-
R E A S ON S
7. Before adumbrating to the factual aspects of the case the entire evidence which has been lead by the prosecution is adumbrated as follows:
8. P.W.1 K. Srinivas is the Complainant and he has deposed before the court that he had received necessary instructions to report to the concerned police with respect to the fraud committed by accused. Accordingly he had lodged the written information before the concerned police as per Ex.P.1. During the course of cross examination it was suggested to him 12 Spl.C.C.No.59 of 2018 that as per the banking parlance the amount received would be shown as IN and the amount disbursed would be shown as OUT.
9. P.W.2 Srinivasa Pai who was the Assistant General Manager has deposed of receiving a letter from Manager SBM Periyapatna on 03.12.2016 stating about irregularities that had occurred in the said branch as per Ex.P.3 and accordingly he had deputed P.W. 3 Santesh for investigation as per the letter at Ex.P.4. He has deposed that on 14.12.2016 he had once again received another letter from the Manager of SBM seeking for investigation of the irregularities he had found in the cash book as per Ex.P.5 and accordingly he had once again issued letter to Deputy Manager Santesh to investigate the same as per Ex.P.6 and he had visited the said bank and after conducting preliminary enquiry had furnished the report on 21.12.2016 as per Ex.P.7 and he had also received the letter from the Manager with respect to the statement given by accused Dinesh as per Ex.P.8. It is his evidence that the DGM Zonal Office Mysore had ordered for detailed enquiry by deputing S.K.Bellubbi and 13 Spl.C.C.No.59 of 2018 Santesh as per Ex.P.9 letter. The witness has deposed that the investigating officers had furnished the report as per Ex.P.15 indicating that the accused had used SWAP method and receipt payment method to exchange SBN to an extent of Rs.2,18,00,000/- and also he has deposed that as per the directions of the DGM he had ordered for suspension of the accused as per the order at Ex.P.29 and also had sought for explanation on 20.01.2017 from the accused as per Ex.P.30 to Ex.P.32. The accused had replied by offering explanation as per Ex.P.33 and Ex.P.34 and he has also deposed that the accused had a unique employee code of 21252 and HRMS code of 617094. During the course of cross examination he has deposed that the statement of accused as per Ex.P.8 was taken under coercion and threat and also he has categorically admitted that no loss was caused to the bank during demonetization. However he has feigned his ignorance about penalty being imposed for the irregularity by RBI. Apart from that nothing much has been elucidated from him.
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Spl.C.C.No.59 of 2018
10. P.W. 3 D. Santesh, who is the Deputy Manager in SBI has deposed that he was aware of the circulars issued by RBI during demonetization period as per Ex.P.11 and also he has deposed that several circulars were issued with respect to the exchange of legal tender notes with SBN which were as per Ex.P.11 to Ex.P.14 and has further deposed that in the month of December 2016 the AGM has issued him a letter requesting him to visit Periyapatna Branch as per Ex.P.6 and Ex.P.7 and during his visit and enquiry for the period between 10.11.2016 to 24.11.2016 he had noticed that the Head Cashier B.Dinesh had used SWAP method in exchange of demonetized notes and has deposed the irregularities found in the below mentioned account holders who are Latha R, Potharaju, Nagiah, Ningiah, K.N.Boralingegowda, N. Lakshmi Devi, Nagaraju P T, Mallamma, Mysore District Government Officers and other Employees Co- operative Society, Narayana C.N. PACCS Nandinathapura, Hemaraju A.R., Heritage Motors, Praphulla P S. Shobha Harish, M/s Eisha Sampada Gas Agency, SMS Liquor Center, M/s Mysore Sales International, M/S V B Enterprises, Ansar Sharief, Ganesh Distributors, B.K.Suresh. He has also deposed that the 15 Spl.C.C.No.59 of 2018 accused B.Dinesh was entrusted with the work of taking care of the banking transactions. It is his evidence that the accused though had received proper denomination of valid legal tender had intentionally changed the same in the cash register extract facilitating the customers to change SBN into legal tender. During the course of further chief examination he has deposed of furnishing the report to the competent authority and he has deposed that as per the report the accused had exchanged totally an amount of Rs.2,18,46,300/- during the period from 10.11.2016 to 24.11.2016 and has deposed that the majority of the transactions were not routed through the accounts which resulted in the loss to Government of India. He was cross examined by the learned counsel for accused and has deposed that he had verified the cash reports for about two days and had interacted with the branch Manager for assistance of verification of cash reports. He has feigned his ignorance with respect to assigning seven additional works apart from the routine work entrusted to the accused during demonetization period. He has also admitted the suggestion that the SBM Periyapatna Branch was the sole currency chest branch for all private banks of 16 Spl.C.C.No.59 of 2018 Periyapatna Taluk and has also admitted the suggestion that the accused was entrusted with operation of currency chest. It was further suggested to him that during demonetization period the cash transaction exceeding Rs.50,000/- was to be dealt by the head cashier and the accused was also entrusted with the work of loading cash to ATM machines and withdrawing cash from cash deposit machines. He has feigned his ignorance with respect to the suggestion that the entire staff of Periyapatna Branch had worked across the night during the demonetization period, however he had admitted that the work load for cashiers was more than that of regular day during the said period. Further he has admitted the suggestion that annexure-v of Ex.P.11 was in English language and many of the customers of the bank did not know English language. Later on the witness was recalled and it was suggested to him that the accused had not given any statement nor the documents at Ex.P.7 which was a system generated cash report and it was imaginary report and a false statement was prepared against the accused. However the said suggestion was denied by the witness. The witness had admitted that the SWAP method adopted by the 17 Spl.C.C.No.59 of 2018 cashiers to tally the physical cash with them to the cash disclosed in the system and by adopting the SWAP method there would not in any manner make any change in the total amount received by the cashiers and also the amount disbursed by them. Later on it was suggested by way of denial that the accused had not exchanged demonetized notes illegally to an extent of Rs.2,18,46,300/- during the period from 10.11.2016 to 24.11.2016 and it was also suggested to him that he had not altered any of the pay-in-slip nor changed the denominations as deposed in his chief examination.
11. P.W. 4 Ansar sharief who is the dealer of TVS motor company has deposed of having an account with No.64075413709 and has deposed that on 18.11.2016 he had given his son a sum of Rs.40,000/- with denomination of Rs.2000x20 to deposit the account as per the pay-in-slip at Ex.P.113 and has tendered his evidence that he had not sent the denomination of Rs.1000x40 which was shown in the cash receipt. During the course of cross examination he has admitted that the contents of the columns in Ex.P.113 were written in 18 Spl.C.C.No.59 of 2018 blue ink and where as the writing with respect to No.20 was in red ink. Apart from that nothing much has been elucidated from him.
12. P.W.5 Sri.Ningiah who is the account holder of the said bank has deposed of depositing Rs. 49,000/- in the denomination of Rs.500x98 as per Ex.P.21 pay-in-slip and has deposed of not depositing a sum of Rs.91,500/-with denomination of Rs.1000x34 and 500x15 on that day. Apart from denial nothing much is suggested to him during the course of cross examination.
13. P.W.6 Sri.P.S. Nagananda has deposed that his wife Bramaramba was the proprietor of Esha Sampada Gas Agency and had opened the current A/C No.64050505631 and has deposed that he had deposited Rs.1,39,250/- on 14.11.2016 with denomination of Rs.2000x5, Rs.1000x25, Rs.500x130, Rs.100x343, Rs.20x72, Rs.10x 51 as per the pay- in-slip at Ex.P.84 and again on 18.11.2016 he had deposited Rs.54,000/- with a denomination of Rs.1000x12, Rs.500x56, 19 Spl.C.C.No.59 of 2018 Rs.100x67, Rs.50x16, Rs.20x158, Rs.10x234 and Rs.2000x1 as per pay-in-slip at Ex.P.109. He has also deposed of depositing Rs.96,250/- on the same day with a denomination of Rs.500x180, Rs.100x12, Rs.50x1, Rs.10x500 as per the pay-in- slip at Ex.P.116. During the course of cross examination he has admitted that the mobile number of the depositor was not mentioned in Ex.P.84 and he has denied the suggestion that he did not personally visited the bank to deposit the above said amount.
14. P.W.7 Sri. Arun Sagar has deposed that he was the Probationary Officer at that point of time and has deposed of working as Deputy Manager in the Account Section of the said bank and has also deposed that the cash vault register was used to be signed by him and head cashier at the end of the day and has also given a evidence with respect to withdrawal of currency on 10.11.2016, 11.11.2016,12.11.2016, 13.11.2016, 14.11.2016, 15.11.2016, 16.11.2016, 17.11.2016, 18.11.2016, 19.11.2016, 20.11.2016, 21.11.2016, 22.11.2016 and 23.11.2016 and he has deposed that the accused is having the 20 Spl.C.C.No.59 of 2018 employer ID as 6570943 and also it is his evidence that the transactions for the afore said period was reflected in the payment cash register and cash denomination register and also the accused who was the head cashier had SWAP SBN into legal tender currency. He has deposed that the accused had accepted his guilt that he had exchanged Rs.1,60,00,000/- to Rs.1,70,00,000/- as per Ex.P.8. further he has identified the cash denomination report as per Ex.P.18 and lastly he has deposed that the accused had exchanged SBN to an extend of Rs.2,18,00,000/- with out routing through the accounts of customers. During the course of cross examination nothing much has been elucidated from him.
15. P.W.8 Sri.K.M.Boralingegowda has deposed that he had opened a account bearing No.64022813095 and had deposited Rs.36,000/- on 11.11.2016 with denomination of Rs.1000x31, Rs.500x10 as per Ex.P.24 pay-in-slip and has deposed that he had not deposited Rs.66,000/-. Apart from denial nothing much has been suggested to him. 21
Spl.C.C.No.59 of 2018
16. P.W.9 Vinod Kumar who is the proprietor of Eshwar Enterprises has deposed of having account with No.64187341860 and on 16.11.2016 he had deposited Rs.57,500/- with denomination of Rs.1000x5, Rs.500x86, Rs.100x92 and Rs.50x6 as per the pay-in-slip at Ex.P.96 and has further deposed he had not deposited amount in any other denomination. During the course of cross examination he has deposed that he stood in the Que for about one hour in the after noon and it was suggested to him that he had deposited the amount not in accordance with the pay-in-slip but he had over written the same.
17. P.W.10 Sri.K.S. Mallesh who is the accountant in the bar and restaurant of Sri C.N.Narayana has deposed that his proprietor was having current account with No.64003663538 and on 16.11.2016 he had deposited Rs.68,730/- with denomination of Rs.1000x17, Rs.500x103, Rs.100x2, Rs.10x30 as per pay-in-slip at Ex.P.59 and on 17.11.2016 he has deposed Rs.24,300/- with denomination of Rs.2000x5, Rs.100x69, Rs.50x48, Rs.20x100, Rs.10x300 as per 22 Spl.C.C.No.59 of 2018 the pay-in-slip at Ex.P.106 and on 18.11.2016 he had deposited Rs.54,700/- with denomination of Rs.2000x17, Rs.100x57, Rs.50x100. Rs.20x380 and Rs.10x2400 as per the pay-in-slip at Ex.P.111 and has specifically deposed that he had not deposited amount in any other denominations apart from the above mentioned. Apart from denial nothing much was suggested to him.
18. P.W.11 S.Nataraj who is the office incharge of the Bar and Restuarant of Sri.N.K.Potharaju has deposed that the account with No.64086502073 was maintained by him and on 16.11.2016 he had deposited Rs.86,000/- in the denomination of Rs.2000x6, Rs.100x6, Rs.50x92, Rs.20x175, Rs.10x300 as per pay-in-slip at Ex.P.93 and on 18.11.2016 he has deposited Rs.3,00,000/- with denomination of Rs.2,000x33, Rs.1000x53, Rs.500x257, Rs.100x457, Rs.50x36 and on 19.11.2016 he had deposited Rs.2 lakhs with denomination of Rs.2000x24, Rs.100x1300, Rs.50x200, Rs.20x300, Rs.10x600 as per Ex.P.123 and has deposed that he had not deposited any other amount apart from the one mentioned above. During the course 23 Spl.C.C.No.59 of 2018 of cross examination it was suggested to him that Sri.M.K.Potharaju had exchanged the amount negligently and had not deposited the amount as per the pay slip. The said suggestion was denied by the witness.
19. P.W.12 Hemaraj A.R. has deposed of maintaining the account with No.64016495206 and on 23.11.2016 he had deposited Rs.6,000/- with denomination of Rs.500x12 and had not deposited Rs.16,000/- on that day as per Ex.P.73. Apart from denial nothing much has been suggested to him.
20. P.W.13 Kadirvelu who is the dealer of Airtel sim card and running the shop in the name and style M/S V B Enterprises at Kushal Nagar has deposed that he is having account with No.64056060934 and has further deposed that on 16.11.2016 he had deposited a sum of Rs.36,000/- in the denomination of Rs.1000x4, Rs.500x38, Rs.100x100, Rs.50x20, Rs.2000x1 as per the pay-in-slip at Ex.P.99 and has deposed that he had not deposited Rs.29,000/- on that day nor any other denomination apart from the above mentioned. During the course of cross examination apart from denial nothing much 24 Spl.C.C.No.59 of 2018 was elucidated from him and he has admitted the suggestion that he had not mentioned his phone number in the pay-in- slip.
21. P.W.14 Latha P.R. who was working as System Operator at Mysore District Officers and other Employees Housing Co-operative Society has deposed that their society had opened a current account with No.64184600035 and she had identified the account opening form and further she has deposed that on 16.11.2016 she had deposited Rs.1,50,000/- with denominations Rs.1000x150 as per the pay-in-slip at Ex.P.56 and she had not deposited Rs.3,50,000/- of other denominations.
22. P.W.15 Swamy C.N. who is the Data Entry Operator at MSIL Liquor outlet at Periyapatna has deposed that they were having current account with No.64052777864 and on 14.11.2016 they had deposited Rs.1,69,090/- with denominations Rs.2000x17, Rs.1000x105, Rs.500x30, Rs.100x100, Rs.50x101, Rs.10x4 as per the pay-in-slip at Ex.P.91 and on 16.11.2016 he had deposited Rs.1,73,950/- 25
Spl.C.C.No.59 of 2018 with denominations of Rs.2000x57, Rs.1000x8, Rs.500x12,Rs.100x435, 50x49 and it is his evidence that he had not deposited Rs.49,500/-on 16.11.2016 and also he has specifically deposed of depositing only the above said amount as per the pay-in-slip at Ex.P.102. He was not subjected to cross examination by the learned counsel for accused.
23. P.W.16 Smt. Mallamma has deposed that she had remitted Rs.49,000/- as per the remittance slip at Ex.P.53 on 16.11.2016 and she had not deposited amount of Rs.10,49,000/- nor she had withdrawn any other amount. During the course of cross examination she has feigned her ignorance with respect to the denominations made towards deposit on the fateful day.
24. P.W.17 Pampathi who is the Manager (HRD) Regional Business Office -II SBM, Mysore has deposed that the accused had joined as Peon on 16.12.1987 and was promoted as Cashier and later on he was transferred to Periyapatna Branch in the month of October 2004 and continued in the same Cadre till his suspension. He has also deposed that the 26 Spl.C.C.No.59 of 2018 Employee ID of accused was 21252 and he was alloted with HRMS ID 617094 and he had handed over the service records of accused as per Ex.P.37.
25. P.W.18 Vijay Karthik has deposed that he was working as single window operator in the year 2015 and during the month of November 2016 the currency note of the face value of Rs.500 and Rs.1,000 came to be demonetized and he has deposed that accused working as Head Cashier between 10.11.2016 to 23.11.2016 with HRMS ID 6267114 and also Arun Sagar was working as Accountant who used to remove cash from cash vault along with accused and used to transfer them to other tellers. He has identified the teller receipts at Ex.P.16, Ex.P.19, Ex.P.44, Ex.P.46, Ex.P.48, Ex.P.50, Ex.P.67 and Ex.P.71. It is his evidence that the cash receipt as well as the one which were returned in various denominations were all reflected in the above mentioned exhibits. During the course of cross examination by the learned counsel for accused he has admitted that he was not the cashier at that point of time and Periyapatna branch was provided with currency chest device and from their the amount was to be distributed to other 27 Spl.C.C.No.59 of 2018 branches and also he has admitted that the cashiers during the said period were entrusted with heavy duty and has denied the suggestion that due to work pressure they had accepted the challans without entering the particulars. However he has denied the suggestion that due to rush of work he had accepted the currency notes by receiving challans and by adopting SWAP method the same has to be tallied in the evening. He has also feigned his ignorance with respect to the Head Cashier being entrusted with other 7 to 8 additional responsibilities in the cash transaction.
26. P.W.19 Gnana Murthy has deposed that he was working as sales Manager at Heritage Motors who were having the bank account with No.64057596000 and on 16.11.2016 he had deposited Rs.98,000/- with denomination of Rs.2000x49 as per the pay-in-slip at Ex.P.104 and has deposed that he had not deposited Rs.1000x98 and also he has deposed that on 23.11.2016 he had deposited Rs.60,000/- with denomination of Rs.2000x30 as per the pay-in-slip at Ex.P.75 and had not deposited Rs.1,60,000/- nor withdrawn a sum of Rs.1 lakh on that day. During the course of cross examination he has 28 Spl.C.C.No.59 of 2018 admitted that the PAN number of Heritage Motors was not mentioned in the pay-in-slip and the said pay-in-slip was in his handwriting. Apart from that nothing much has been elucidated from the witness.
27. P.W.20 P.T. Nagaraj has deposed that he and his wife Smt. Leela were having a joint SB account and on 11.11.2016 he had deposited a sum of Rs.2 lakh with denomination of Rs.1000x200 as per the pay-in-slip at Ex.P.42 and he had not deposited Rs.2,50,000/- during the course of cross examination he has admitted that the deposit slip was written in English language which he was unable to read and write and except his signature on Ex.P.42 he was unable to fill any of the contents.
28. P.W.21 N. Lakshmi Devi has deposed of having account in the said branch for the last 20 years and on 11.11.2016 she had deposited Rs.9,000/- with denomination of Rs.1000x3, Rs.500x12 as per the pay-in-slip at Ex.P.39 and had withdrawn a sum of Rs.10,000/- on that day. She has deposed that apart from that she had not deposited Rs.3,03,000/- nor 29 Spl.C.C.No.59 of 2018 she had withdrawn a sum of Rs.3 lakhs with denomination of Rs.100x3000. During the course of cross examination she has deposed of not witnessing any excess amount being deposited to her account.
29. P.W.22 Manoj Kumar who is the proprietor of M/s Jyothi Bankers has deposed that he was an income tax assesse and his brother Sunil, uncle son Rakesh Dallal and his wife Dimple Jain his relative Vandana Kumari, Sunil Kumar, Rekha W/o Mahaveer and Rekha Kumari W/o Manoj Kumar, Sangeetha, Sundar Bai, Sha Nathulal Arjunlal Jain, Anitha, Manoj Kumar, Arjunlal Jain and Sons, M/s New Jyothi Jewelers, A. Manoj Kumar were all having accounts in the said branch and on 10.11.2016 he had deposited Rs.18 lakhs in his SB account with No.54023159633 and had identified the accused. During the course of cross examination he has admitted that he was not the authorized signatory of his family members.
30. P.W.23 N.P. Ganesh who was working as Attender at PACS Manjunathapura had identified the accused and had has deposed of regularly visiting the bank for official works and 30 Spl.C.C.No.59 of 2018 deposed that on 16.11.2016 he had deposited Rs.3,75,400/- as per Ex.P.64. Pay-in-slip with denomination of Rs.1000x283 and Rs.500x185 and has deposed of not depositing Rs.7,74,500/- nor he had withdrawn a sum of Rs.4 lakh on that day. During the course of cross examination he has admitted that the Ex.P.64 pay-in-slip does not contain his signature but of the head cashier Basavaraj and he was not aware about the bank transaction entered in Ex.P.65.
31. P.W.24 Sharukh Sharief on 18.11.2016 he had deposited Rs.40,000/- with denomination Rs.2000x20 as per the pay-in-slip at Ex.P.113 and had not deposited the afore said amount with a denomination of Rs.1000x40 and apart from denial nothing much was suggested to him.
32. P.W.25 P.S.Madhusudan has deposed that his mother Prapulla had opened account in the year 1992-1993 and had not deposited a sum of Rs.24,000/- on 23.11.2016. Further he has deposed that his mother had not deposited Rs.5 lakhs in her account with denomination of Rs.1000x500 nor had withdrawn cash of Rs.5,24,000/- with denomination of 31 Spl.C.C.No.59 of 2018 Rs.2000x200 and Rs.100x240 since his mother was a house wife and did not had any personal earning. He has also identified the self cheque at Ex.P.78 bearing the signature of his mother. During the course of cross examination he has admitted that the CBI authorities had not collected the pass book of his mother and closure of the account after her death.
33. P.W.26 Latha R. has deposed that she was working as guest lecturer in FMC College of Madikeri and on 11.11.2016 she had deposited a sum of Rs.10,000/- with a denomination of Rs.1000x6, Rs.500x8 as per the pay-in-slip at Ex.P.27 which bears her signature and also she has deposed that she had never deposited Rs.22,50,000/- with denomination of Rs.1000x2000, Rs.500x500. During the course of cross examination she has admitted that she was not having counter foil for depositing Rs. 10,000/-.
34. P.W.27 P.M.Natesh has deposed that his father Mallesh was running a Bar and Restaurant in the name SMS Liquor Center and on 14.11.2016 he had deposited Rs.1,06,000/- with denomination of Rs. 1000X29, Rs.500x130, Rs.2000x6 as per the pay-in-slip at Ex.P.88 and had not 32 Spl.C.C.No.59 of 2018 deposited Rs.41,000/- with denomination of Rs.1000x41. During the course of cross examination he has admitted that his father who was the account holder was alive and apart from that nothing much was elucidated from him.
35. P.W. 28 B. K. Suresh has deposed that on 23.11.2016 he had deposited Rs.1,19,500/- with denomination of Rs.2000x30, Rs.1000x17,Rs.500x35,Rs.100x180,Rs.50x55 and Rs.20x275 as per the pay-in-slip at Ex.P.128 and had not deposited the amount with denomination of Rs.1000x35, Rs.20x210, Rs.10x5 . During the course of cross examination nothing much has been elucidated from him.
36. P.W.29 Aakash C. Hegde who was the branch manager of Chilkunda Branch of Karnataka Bank has deposed of furnishing KYC documents pertaining to Manoj Kumar Jain and also the account details which were as per Ex.P.154 to Ex.P.156.
37. P.W.30 Harish M.H. has deposed that he was working as single window operator between 2013 to 2019 and during the period of demonitization i.e. from 10.11.2016 to 33 Spl.C.C.No.59 of 2018 23.11.2016 he was working as Teller in the exchange counter and the accused was the Head Cashier with separate HRMS ID and Arun Sagar was the accountant of the branch during the relevant period. He has also identified the teller receipt at Ex.P.16, Ex.P.19, Ex.P.44, Ex.P.46, Ex.P.48, Ex.P.50, Ex.P.67 pertaining to the day i.e. 10.11.2016, 11.11.2016, 12.11.2016, 13.11.2016, 15.11.2016, 16.11.2016, 18.11.2016 respectively. During the course of cross examination he has deposed that during the demonetization period he used to receive the deposit amount from the customer and also about 5 to 6 employees worked as tellers at SBM Branch and also had admitted of huge crowd of customers during the said period.
38. P.W. 31 Sandeep Kumar Giri who had worked as SWO of SBM has deposed that during the demonetization period a limit in exchanging SBN were imposed and has further deposed that during the relevant period of 10.11.2016 to 23.11.2016 accused was the Head Cashier and Arun Sagar was the accountant and he had identified the teller receipt at Ex.P.16 dated 10.11.2016, Ex.p.19 dated 11.11.2016, Ex.P.44 dated 12.11.2016 , Ex.P.46 dated 13.11.2016 , Ex.P.48 dated 34 Spl.C.C.No.59 of 2018 15.11.2016, Ex.P.50 dated 16.11.2016 , Ex.P.67 dated 18.11.2016, Ex.P.71 dated 23.11.2016. During the course of cross examination he has admitted that totally 7 cashiers were functioning during the period from 10.11.2016 to 23.11.2016 and has also admitted that the accused had the responsibility of the identifying the fake notes from the cash received by the cashiers.
39. P.W 32 Shwetha Yadav has deposed of handing over the circulars as per Ex.P.19.
40. P.W.33 Varun Kumar has deposed that he was working as SWO Associate during the demonetization period and also he has deposed about the limit in exchange of SBN. It is his evidence that from 10.11.2016 to 23.11.2016 he was working as teller/SWO in the branch had identified the teller receipt at Ex.P.16, Ex.P.19, Ex.P.44, Ex.P.46, Ex.P.48, Ex.P.50, Ex.P.67, Ex.P.71 he was not subjected to cross examination.
41. P.W.34 Shruthi S. was SWO in the bank and she was deposed that she used to take application form along with ID proof from the customers and has identified Teller receipt at 35 Spl.C.C.No.59 of 2018 Ex.P.16 and Ex.P.19. She was also not subjected to cross examination.
42. P.W.35 Sri.Kurumapu Ashok has deposed that he was also SWO in the bank and he was deposed that he used to take application form along with ID proof from the customers and has identified Teller receipt at Ex.P.16 and Ex.P.19, Ex.P.44, Ex.P.46, Ex.P.48, Ex.P.50, Ex.P.67, Ex.P.71. He was also not subjected to cross examination.
43. PW.36 Sri. Rajesh Kumar M has deposed that he was the Branch Manager in the year 2017 and has submitted document with covering letter as per Ex.P.157.
44. PW.37 Sri. Muchiramu who was the Manager, Scale III has deposed that in the month of November 2016 he was entrusted with the supervision and Administration of the Branch and the accused was the Head Cashier of Periyapatna Branch at that point of time with ID 6170943 and he was entrusted as Joint Custodian of currency chest and was also required to take care of payment receipt counter and has deposed that on 08.11.2016 the Central government had 36 Spl.C.C.No.59 of 2018 demonetized existing currency denomination of the face value of Rs.500/- and Rs.1000/- and had permitted the general public to exchange the same with a maximum limit of Rs.4,000/- per day which was later on increased to Rs.4500/- and Rs.2000/-. It is his evidence that on 03.12.2016 he had verified the accounts along with Arun Sagar and had noticed SWAP transaction during the said period and has deposed that totally the amount of Rs.2,03,00,000/- were exchanged and had received the letter from the Branch Manager as per Ex.P.3 and on 14.12.2016 he had once again corresponded with the AGM, Regional Office, Mysore and accordingly PW.3 D.Santhesh was deputed to verify the said account and after verifying the entire accounts he had noticed that there was irregularity by SWAP method to an extent of Rs.2,03,00,000/- and he had also noticed the letter of Accused Dinesh confessing about the same as per Ex.P.8 and on 26.12.2016 PW.3 Santhesh and Suresh Bellubbi were deputed for detailed examination of transaction and after verifying the accounts they had noticed that there was an illegality to an extent of 37 Spl.C.C.No.59 of 2018 Rs.2,18,46,300/- out of that the Accused had committed illegality through SWAP method to an extent of Rs.2,03,00,000/- and remaining amount of Rs.15,46,300/- was remitted illegally through account transactions and even though no loss was caused to the bank the act of Accused indulging in SWAP transaction and other illegal transaction had caused loss to the government exchequer. Further he has deposed of handing over the documents to the CBI authorities as per Ex.P.158 to Ex.P.160. During the course of Cross-examination he has denied all the suggestions put to him with respect to innocence of Accused. He has deposed of personally being present at the time of recording the statement of Accused as per Ex.P.8 and has deposed that the same was personally written by Accused and at that time Arun Sagar, H.N. Harish and Santesh were present.
45. PW.38 Sri. J.A. Jayashankar has deposed that he was the probationary officer and later on he was posted 38 Spl.C.C.No.59 of 2018 as Deputy Manager at Periyapattana and it is his evidence that on 16.11.16 during demonitization period they had deposited a sum of Rs.20,00,000/- to their current account with No. 64161116856 with denomination of Rs.1000X2000 as per the pay-in-slip at Ex.P.61 and he had not deposited any other amount with other denomination. During the course of cross-examination apart from denial nothing has been suggested to him.
46. PW.39 Mahadeva Kumar K.P. who was the Regional Manager-I and also the competent sanctioning authority has deposed that in the year 2017 the CBI authorities had sent report along with the Statement of witnesses, FIR and documents including cash teller report seeking permission to prosecute the Accused on the ground that he had misused his official position while working as Head Cashier and on perusing the records and after verifying the relevant records he had arrived at a conclusion to accord permission to prosecute the Accused 39 Spl.C.C.No.59 of 2018 as per the sanction order at Ex. P.163. During the course of cross-examination he has categorically admitted that as per the records there were no monetary loss caused to their Bank however he has voluntarily deposed that the Accused had misused his official position. He has admitted that the cashiers were under tremendous pressure during demonetization period and has denied the suggestion that there were no grounds to accord permission to prosecute the Accused.
47. PW.40 S.Venugopal is Investigating Officer and has deposed that on 28.02.2017 the then Head of branch had registered the FIR in RC 3(A)/2017 against accused as per Ex.P.164 and also against Manjor Kumar who was arrayed as Accused under Secs. 120-B, 409, 420, 468, 477- A of IPC and under Sec.13(2), 13(1)(c) and 13(1)(d) of Prevention of Corruption Act and further on 01.03.2017 he had conducted search at the house of accused No.1 and 2. However no incriminating materials were recovered. It is 40 Spl.C.C.No.59 of 2018 his evidence that on 09.03.2017 and 10.03.2017 he had examined CW.3 Suresh K Bellubi and collected documents and statements. Further on 13.03.2017 he had examined PW.17 Santhesh and PW.37 on 06.04.2017. He has deposed of examining PW.2 Srinivas Pai, PW.37 Munchiram, PW.4 Answar Sheriff, PW.5 Ningaiah, PW.6 P.S.Nagananda, PW.8 Boralinge Gowda, PW.9 N. Vinod Kumar, PW.28 B.K. Suresh, PW.10 K.S. Mallesh, PW.11 Nataraj and on 18.08.2017 he had examined A.R. Hemaraj, N.C. Prasanna Kumar, Khadir Velu, Latha B.R. Swamy C.N. Gnanamurthy, P.T.Nagaraj, Sadashiva, Lakshmidevi, Jayashankar, Ganesh, Sharukh Sheriff, Madhusudhana, PW.26 Latha. It is his evidence that he had also recorded the statement of P.M. Mahesh, Pampapati, Mallamma, Vijay Karthik, Sandeep Kumar Giri, Varun Kumar, Shruthi S, Harish M.H, Arun Sagar and also Kurumapu Ashok Munchiramu, Manoj Kumar. He has deposed that during the course of investigation it was proved that the Accused 41 Spl.C.C.No.59 of 2018 by adopting SWAP method had fraudulently exchanged the demonetized currency notes to legal tender notes. Since there were no materials against accused No.2 he was not arrayed as accused at the time of filing the charge sheet. During the course of cross-examination he had admitted that no monetary loss was caused to the bank and the SWAP method was being adopted by all Cashiers for their internal banking operation. Apart from that nothing much has been elucidated from him.
48. Point No.1 : In the instant case there is not much dispute with respect to the fact that the accused was working as a head cashier in a Public Sector Bank i.e. the then State Bank of Mysuru which is now amalgamated with State Bank of India as per the orders passed by the Government of India. As such necessary sanction was sought from the competent authority i.e. Sri.Mahendra Kumar who was the Regional Manager, Region II, State Bank of India, Regional business Office II, Mysuru for prosecuting the accused person. The Original Sanction letter came to be marked as per Ex.P.163. On 42 Spl.C.C.No.59 of 2018 perusal of the report at Ex.P.163 indicates that the competent authority i.e. the Regional Manager of the then SBM had accorded sanction and U/s.19(1)(c) of Prevention of Corruption Act to prosecute B.Dinesh, a public servant. The Impugned sanction order also indicates that the competent authority had carefully considered the allegations leveled against the accused persons and also the records to ascertain whether a case made out for according the sanction. The said sanction order was marked to PW.39 who was the Investigation Officer in the above case. The records also indicates that the issuance of sanction order is not seriously disputed by the Learned counsel appearing for the accused. Under the circumstances, by looking into the provisions of Sec. 19(1)(c) of Prevention of Corruption Act would clearly indicates that the competent authority had considered the materials and accorded permission. It is also pertinent to note that the Accused during the relevant period of time was working as Head Cashier of the then State Bank of Mysore and was discharging his official duty. The main allegations which were levelled against the accused is that he had not followed the guidelines and the directions issued by 43 Spl.C.C.No.59 of 2018 the RBI and the Central Government in letter and spirit and also had flouted them with malafide intention. Under the circumstances the act of the accused would attract the provisions of IPC and also under the provisions of Prevention of Corruption Act. Hence, the sanction which was accorded is in accordance with law and as such Point No.1 is answered in the Affirmative.
49. POINT NO.2 & 3:- In the instant case eschewing of unnecessary details the main allegation which is leveled against the accused is for committing criminal breach of trust and causing loss to the Government exchequer. It is the contention of the prosecution that the accused B.Dinesh was the Head Cashier of State Bank of India during the demonetization period from 10.11.2016 to 23.11.2016. It is being contended that the accused was entrusted with the work to act as Head Cashier of the bank. The main aspect which requires to be determined is whether the prosecution has successfully established that the accused had committed breach of trust. In order to consider the said aspect the court in the first instance has to appreciate what exactly amounts to 44 Spl.C.C.No.59 of 2018 breach of trust. It is well settled principles of law that in order to attract the provisions of section 409 of IPC there must be an entrustment of property and dishonest misappropriation or use thereof is required to be established by the prosecution. The manner of misappropriation or its use are enumerated in Sec.409 of IPC which are sine qua non for attracting the rigors of Sec.409 of IPC. In other words in order to attract the provision of Sec.405 of IPC there must be :
a. Entrustment of any property or dominion over the property b. That person has dishonestly mis-appropriated or converted to his own use c. That person dishonestly used or disposed that property or willfully has done any act in violation of any direction of law.
50. When the said provision is carefully appreciated the crucial aspect which is required to be considered is the word 'dishonestly' pre-supposes the existence of mens rea. Hence it is crystal clear that the prosecution has to establish that the act of the accused was in derogation to the conduct which was expected from him. Unless the mens rea is proved the prosecution cannot insist to seek for an order of conviction. At 45 Spl.C.C.No.59 of 2018 the same time the fundamental ingredient of 'criminal breach of trust' within the meaning of Sec.405 is that :
a. The accused must be a public
servant
b. He must be entrusted in such
capacity of the property.
c. He must have committed breach
of trust in respect of such
property.
51. The said aspect requires to be considered in the wake of the materials placed before the court and also the evidence which is led by prosecution. It is an admitted fact that the accused in the instant case is a public servant and also he was working as Head Cashier at the than State Bank Mysore. It is also appropriate to note that there is not much dispute with respect to entrustment of work to him as Head Cashier during the relevant point of time i.e. from 08.11.2016 to 23.11.2016. The second leg of aspect which is required to be considered is whether he was entrusted with any property or was having any domain over the same. In this regard it would be appropriate to refer to the evidence which is placed before the court. P.W. 3 D.Santesh was deputed for the purpose of enquiring into the 46 Spl.C.C.No.59 of 2018 irregularities that had taken place in the bank. He has also deposed specifically with respect to the unique employee ID and also the HRMS ID which was issued to the accused. It is noticed from the evidence of P.W.7 Arun Sagar that the accused was having employee ID as 6570943 and the same could be ascertained in all the teller receipts which were produced before the court. Apart from that it is also appropriate to note that on several occasions the evidence which is brought before the court would indicate that in order to operate the teller receipts the specific employee ID was required to be entered. In the case on hand during the course of cross examination of P.W. 3 by the learned counsel for the accused would also indicate that not much dispute is raised with respect to entrustment of work. Mainly the suggestion which has been made is to the extent that the accused was having undue work pressure during the demonetization period. Repeatedly it was suggested to him that he was made to work for long hours and also the same suggestion has been made to P.W. 37 Muchiram who has deposed that accused B.Dinesh was having Employee ID as 6570943. All this un-controverted evidence would only infer 47 Spl.C.C.No.59 of 2018 that he was entrusted with certain duty by the bank. With respect to the duties assigned to accused there is also not much dispute as he was working as Head Cashier. However an attempt has been made by the accused during the course of cross examination that there were three other additional cashiers working at that point of time. Whether a duty was casted upon them or whether the other cashiers were responsible for the alleged irregularities is a matter which would be determined while discussing in the later part of my judgment. However at this juncture it can be safely deduced from the evidences of P.W. 1 to 3 and also P.W. 7 Arun Sagar that the accused B.Dinesh was the Head cashier who was entrusted with a specific duty by the bank. The evidence of P.W. 7 would further indicate the role attributed to accused. P.W. 7 Arun Sagar in his evidence has deposed that he was working as Deputy Manager in the account section of SBM Periyapatna and during the said period cash were withdrawn from the cash vault register mentioning the denomination. When his evidence is carefully appreciated it indicates that the accused who was the Head Cashier and who was also required to affix his signature 48 Spl.C.C.No.59 of 2018 on the same had indeed affixed the same which could be noticed from the records at Ex.P.131. P.W. 7 in the course of his evidence has deposed that on 18.11.2016 the accused has SWAPPED transaction of Rs. 2 lakhs from the Branch General Ledger Account with number 3199842400730 and also a sum of Rs.4 lakhs was SWAPPED as per the entry in the system. The evidence would clearly indicate that the accused was specifically entrusted with duty and domain over the property of the bank. The main relevant aspect which is required to be considered is whether the monitory transactions and also the currency notes can be considered as property of the bank over which the accused was entrusted with. In this regard the court has relied upon the judgment of the Hon'ble Apex Court reported in (1972)1 SCC 630 ( Som Nath Puri V State of Rajasthan) wherein it is held as:
7. There can be no doubt that before a public servant can be convicted of an offence under Section 5(1)(e) or under Section 409 IPC, the property which is said to have been misappropriated must be entrusted to him.
Section 405 merely provides, whoever being in any manner entrusted with property or with any dominion over the property, as the first ingredient of the criminal breach of trust, the 49 Spl.C.C.No.59 of 2018 words "in any manner" in the context are significant. The section does not provide that the entrustment of property should be by someone or the amount received must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression "entrusted" in Section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. It may be that a person to whom the property is handed over may be an agent of the person to whom it is entrusted or to whom it may belong, in which case if the agent who comes into possession of it on behalf of his principal, fraudulently misappropriates the property, he is nonetheless guilty of criminal breach of trust because as an agent he is entrusted with it. A person authorised to collect moneys on behalf of another is entrusted with the money when the amounts are paid to him, and though the person paying may no longer have any proprietary interest nonetheless the person on whose behalf it was collected becomes the owner as soon as the amount is handed over to the person so authorised to collect on his behalf. This view of ours is well supported by decisions of different High Courts in this country for nearly a 50 Spl.C.C.No.59 of 2018 century, a few of which alone need be examined.
52. Further in another judgment of the hon'ble Apex Court reported in (2003) 10 SCC 521 (Anwar Chand Sab Nanadikar Vs. State of Karnataka) where in it has been held as:
10. Essentially, the question is whether the analysis of the High Court in view of the evidence on record is sustainable. We find that the factual aspects have been highlighted by the prosecution to show that the accused was guilty. The decision in Rabindra case [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] is of no assistance to the accused-appellant because in that case there was no material to show any mens rea apart from the fact that the entrustment itself was not fully established. The accusations were not brought to the notice of the accused. Additionally, his explanation as offered was not examined at all.
The factual scenario being different in the present case the conclusions arrived at in the decision sought to be relied on have no bearing so far as the present case is concerned, as the accusations have been fully established. The evidence of PWs 1, 8 and 10 conclusively establishes that the accused-appellant was in charge of the properties and he could not either produce those articles or properly account for them when he was asked to do so, as was obligated for him.
11. In Jaikrishnadas Manohardas Desai v. State of Bombay [AIR 1960 SC 889 : 1960 Cri LJ 1250] it was held as follows: (AIR p. 891, para 4) "[T]o establish a charge of criminal breach of trust, the prosecution is not obliged to prove the 51 Spl.C.C.No.59 of 2018 precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made."
12. This case was considered in Rabindra Kumar case [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] . It was held that the proposition cannot be doubted. But the question is whether the explanation is absolutely false. It is in that background, this Court held that the accusations were not established. In the present case, the position is totally different. No explanation, much less plausible has been given. The High Court is, therefore, right in setting aside the order of acquittal so far as the appellant is concerned. The appeal fails and is dismissed.
53. During the course of cross examination of P.W. 7 it was suggested to him that during the demonetization period the accused had not used the SWAP method and also he had 52 Spl.C.C.No.59 of 2018 used the same only for the purpose of internal account adjustment. The said suggestion when appreciated with the evidence of P.W.40 Sri.Venugopal who is the IO in the case would clearly indicate the entrustment of work to the accused. Apart from that it is also pertinent to note that the accused was subjected to preliminary enquiry and later on he was suspended from the service. Under the circumstances the fact of devolution of property of the bank is also established. The next aspect which is required to be considered is whether the breach of trust has been committed by the accused. In order to appreciate the said aspect the court has to look in to the evidence of P.W.3 D.Santesh who has deposed before the court with respect to conducting enquiry and also has stated about the irregularities found in the account of various customers of the bank. In order to better appreciate the same it would be appropriate to consider the evidence of the customers of the bank who were examined before the court as P.W. 4 Ansar Sharief, P.W. 5 Ningiah, P.W. 6 Nagananda, P.W. 8 Boralingegowda, P.W. 9 Vinod Kumar, P.W. 10 Mahesh, P.W. 11 Nataraj, P.W. 12 Hemaraj, P.W.13 Kadirvelu, P.W. 14 Latha, 53 Spl.C.C.No.59 of 2018 P.W. 15 Swamy C.N, P.W.16 Mallamma, P.W. 17 Pampathi etc., In order to better appreciate the contention of the prosecution the following table is drawn which would indicate the allegations made against the accused with respect to the commission of breach of trust by him. In this regard the entire transactions which had taken place is required to be scrutinized. For the sake of convenience and benefit the entire extract is drawn as mentioned below:
Sl. Account holder Name Denominations Cash Register Discrepancies no and A/c Number Deposited with Extract with found/ amount Exhibit Exhibit alleged to have exchanged 1 P.W. 4 Rs.2000x20 Rs.1000x40 as per Rs.40,000/-
Ansar Sharief = Rs.40,000/- Ex.P.68 A/c No. 64075413709 as per Ex.P.113.
2 P.W. 5 Ningiah Rs.500x98 Rs.1000x34 Rs.42,500/- A/c No.64113493151 = Rs.49,000/- Rs.500x115 Rs.
as per Ex.P.21 91,500/- as per
Ex.P.18
3 P.W.6 Nagananda Transaction on Rs.1000x139 Rs.46,000/-
A/C No.64050505631 14.11.2016 Rs.100x2
Rs.1000x25 Rs.50x1
Rs.500x130 =Rs.1,39,250/- as
Rs.100x343 per Ex.P.87
Rs.20x72
Rs.10x51
= Rs.1,39,250/- as
per Ex.P.84
Transaction on Rs.2000x1 Rs.5,000/-
54
Spl.C.C.No.59 of 2018
18.11.2016 Rs.1000x16
Rs.2000x1 Rs.500x56
Rs.1000x12 Rs.100x57
Rs.500x56 Rs.50x16
Rs.100x67 Rs.20x58
Rs.50x16 Rs.10x34
Rs.20x158 = Rs.54,000/- as
Rs.10x234 per Ex.P.68
= Rs.54,000/-
as per Ex.P.109
Transaction on Rs.1000x5 Rs.5,000/-
18.11.2016 Rs.500x180
Rs.500x180 Rs.100x12
Rs.100x12 Rs.50x1
Rs.50x1 = Rs.96,250/- as
Rs.10x500 per Ex.P.68
= Rs.96,250/-
as per Ex.P.116
4 P.W.8 Transaction on Rs.100x300 as per Rs.30,000/-
K.M.Boralingegowda 11.11.2016, Ex.P.25
A/c 64022813095 Rs.1000x31
Rs.500x10
= Rs.36,000/-
as per Ex.P.24
5 P.W.9 Vinod Kumar Transaction on Rs.1000x5 Rs.9,000/-
A/C 64187341860 16.11.2016 Rs.500x86
Rs.1000x14 Rs.100x92
Rs.500x86 Rs.50x6 as per
Rs.100x92 Ex.P.51
Rs.50x6
= Rs.66,500/-
as per Ex.P.96
6 P.W.10 K.S. Mahesh Transaction on Rs.100x217 Rs. 2,00,000/-
A/c 64003663538 16.11.2016 as per Ex.P.50
Rs.1000x17
Rs.500x103
Rs.100x2
Rs.10x30
=Rs.68,730/-
55
Spl.C.C.No.59 of 2018
as per Ex.P.59
Rs. 14,000/-
17.11.2016 Rs.2000x5
Rs.2000x5 Rs.1000x14
Rs.100x69 Rs.100x3
Rs.50x48 as per Ex.P.108
Rs.20x100
Rs.10x300
= Rs. 24,300/-
as per Ex.P.106 Rs. 54,000/-
18.11.2016 Rs.1000x54
Rs.2000x17 Rs.100x7
Rs.100x57 = Rs.54,700/-
Rs.50x100 as per Ex.P.68
Rs.20x380
Rs.10x240
= Rs.77,500/-
as per Ex.P.111
7 P.W.11 S. Nataraj Transaction on Rs.2000x6 Rs.62,000/-
A/c 64086502073 16.11.2016 Rs.1000x62
Rs.2000x6 Rs.100x9
Rs.100x629 Rs.50x92
Rs.50x92 Rs.20x175
Rs.20x175 Rs.10x300
Rs.10x300 = Rs.86,000/-
= Rs.86,000/- as per Ex.P.51
as per Ex.P.93
Transaction on Rs.2000x33 Rs.52,500/-
18.11.2016 Rs.1000x104
Rs.2000x33 Rs.500x260
Rs.1000x53 = Rs.3,00,000/-
Rs.500x257 as per Ex.P.68
Rs.100x457
Rs.50x136
= Rs.3,00,000/-
as per Ex.P.118
Transaction on
19.11.2016 Rs.2000x24 Rs.1,30,000/-
56
Spl.C.C.No.59 of 2018
Rs.2000x24 Rs.1000x130
Rs.100x1300 Rs.50x200
Rs.50x200 Rs.20x300
Rs.20x300 Rs.10x600
Rs.10x600 = Rs.2,00,000/-
= Rs. 2,00,000/- as per Ex.P.122
as per Ex.P.123.
8 P.W.12 Hemaraj A.R. Transaction on Rs.1000x10 Rs.20,000/-
A/c 64016495206 23.11.2016 Rs.100x160
Rs.500x12 = Rs.26,000/-
= Rs.6,000/- as per Ex.P.71
as per Ex.P.73
9 P.W.13 Kadirvelu Transaction on Rs. 2000x1 Rs.10,000/-
A/c 64056060934 16.11.2016 Rs.1000x4
Rs.1000x4 Rs.500x58
Rs.500x38 Rs.20x50
Rs.100x100 = Rs.36,000/-
Rs.50x20 as per Ex.P.51
Rs.2000x1
= Rs.36,000/-
as per Ex.P.99
10 P.W. 14 - Latha R Transaction on 1000x350 Rs.2,00,000/-
64105000041 16.11.2016 = Rs.3,50,000/-
Rs.1000x150 as per Ex.P.51
= Rs.1,50,000/-
as per Ex.P.56
11 P.W.15 - Swamy C N Transaction on Rs.2000x17 Rs.10,000/-
A/c 64052777864 14.11.2016 Rs.1000x105
Rs.2000x17 Rs.500x50
Rs.1000x105 Rs.50x101
Rs.500x30 Rs.10x4
Rs.100x100 = Rs.1,69,090/-
Rs.50x101 as per Ex.P.87
Rs.10x4
= Rs.1,69,090/-
as per Ex.P.91
12 P.W.16 - Malllamma Transaction on Rs.1000x1049 Rs.10,00,000/-
A/c 64071915260 16.11.2016 = Rs.10,49,000/-
Rs.500x98 as per Ex.P.54
= Rs.49,000/-
57
Spl.C.C.No.59 of 2018
as per Ex.P.53
13 P.W.20 - P.T. Nagaraj Transaction on Rs.1000x250 Rs.50,000/-
A/c 54023162421 11.11.2016 = 2,50,000/-
Rs.1000x200 as per Ex.P.18
= Rs.2,00,000/-
as per Ex.P.42
14 P.W. 21 - Transaction on Rs.1000x303 Rs.3,00,000/-
N. Lakshmidevi 11.11.2016 = Rs. 3,03,000/-
A/c 54023156360 Rs.1000x3 as per Ex.P.18
Rs.500x12
= 9,000/-
as per Ex.P.39
15 P.W.23 - N.P.Ganesh Transaction on Rs.1000x683 Rs.4,00,000/-
A/c 54023133422 16.11.2016 Rs.500x183
Rs.1000x238 = Rs.7,74,500/-
Rs.500x183 as per Ex.P.51
= Rs.3,75,400/-
as per Ex.P.64
16 P.W.24 - Sharukh Transaction on Rs.1000x40 Rs.40,000/-
Sharief 18.11.2016 =Rs.40,000/-
A/c 64075413709 Rs.2000x20 as per Ex.P.68
= Rs.40,000/-
as per Ex.P.113
17 P.W.25 - Transaction on the Rs.2000x200 Rs.5,00,000/-
P.S. Madhusudan account of his mother Rs.100x1240
Smt. Praphulla P.S. = Rs.5,24,000/-
on 23.11.2016, as per Ex.P.72
cheque no.286611 for
Rs.24,000/-
as per Ex.P.78
18 P.W.26 Smt. Latha R Transaction on Rs.1000x2006 Rs.22,50,000/-
A/c 64105000041 11.11.2016 Rs.500x508
Rs.1000x6 = Rs.22,60,000/-
Rs.500x8 as per Ex.P.19
= Rs.10,000/- as per
Ex.P.27
19 P.W.27 P.N. Natesh Transaction on Rs.1000x41 Rs.12,000/-
A/C 64019486764 14.11.2016 Rs.500x130
Rs.2000x6 = Rs.1,06,000/-
58
Spl.C.C.No.59 of 2018
Rs.1000x29 as per Ex.P.87
Rs.500x130
= Rs.1,06,000/-
as per Ex.P.88
20 P.W.28 B.K.Suresh Transaction on Rs.2000x30 Rs.19,300/-
A/c 64188373017 23.11.2016 Rs.1000x35
Rs.2000x30 Rs.500x35
Rs.1000x17 Rs.50x55
Rs.500x35 Rs.20x210
Rs.100x180 Rs.10x5
Rs.50x55 = Rs.1,19,500/-
Rs.20x275 as per Ex.P.72
= Rs. 1,19,500/-
as per Ex.P.128
54. When the above said aspect is carefully appreciated it clearly indicates the modus operandi of the accused wherein he had exchanged the SBN with legal tender notes during the demonetization period. The locus classicus in the above case by the accused is that he had exchanged the denominations which were mentioned in the pay-in-slips by the customers and though the amount were shown to be tallied by adopting SWAP method, in reality he had exchanged the demonetized currency notes to that of legal tender which was clearly against the guidelines and circular issued by the RBI and also Government of India. At this juncture what is required to be looked in to is the fact that there was no dispute with respect to entrustment 59 Spl.C.C.No.59 of 2018 of work and also the accused discharging his duty as Head Cashier. At the cost of repetition it is to be mentioned that the evidence of P.W. 7 Arun Sagar who had worked along with the accused and also the evidence of P.W. 33 Varun Kumar, P.W. 31 Sandeep Kumar Giri, P.W. 30 Harish M.H. clearly indicates the role of accused persons. In particular the evidence of P.W.30 Harish M.H. would indicate that during the said demonetization period he was working as Teller in the exchange counter and has deposed about the HRMS ID of accused being 6250904 and also he has in detail explained about the Teller receipt/payment cash register for the period between 10.11.2016 to 18.11.2016 which are at Ex.P.16, Ex.P.19, Ex.P.44, Ex.P.46, Ex.P.48, Ex.P.50 and Ex.P.67. Further the evidence of P.W. 31 who was also the Teller/SWO in the branch would vindicate the contention of prosecution. Hence the entrustment of work can not be disputed and the sole question which requires to be determined is with respect to breach of trust committed by the accused. At the same time whenever the provision of Sec.409 of IPC is pressed into service the law mandates that the burden of proof in respect of proving the said offence will always be on the 60 Spl.C.C.No.59 of 2018 prosecution and at the same time when the prosecution establishes the fact that the accused was a public servant who was entrusted with property and was duty bound to account for and there was dereliction of duty, the onus will be shifted upon the accused. In this regard the judgment relied upon by the learned prosecutor in (2007) 1 SCC 623 (Mustafi Khan Vs State of Maharashtra) wherein it has been held as :
10. Where the entrustment is admitted by the accused, it is for him to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged.
11. The above position was reiterated in Jagat Narayan Jha v. State of Bihar [1995 Supp (4) SCC 518 : 1995 SCC (Cri) 246] .
12. It is not necessary or possible in every case to prove as to in what precise manner the accused had dealt with or appropriated the goods. In a case of criminal breach of trust, the failure to account for the money, proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. Although onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode and manner of misappropriation and in such a case the 61 Spl.C.C.No.59 of 2018 prosecution would have to rely largely on the truth or falsity of the explanation given by the accused. In the instant case, there is no dispute about the entrustment.
55. Further in another judgment of the Hon'ble Apex Court reported in (2004) 13 SCC 217 (N Bhargavan Pillai (Dead) by Lrs. And another Vs. State of Kerala) Where in it has held as :
It is fairly well-settled position in law that actual mode of entrustment or misappropriation is not to be proved by the prosecution. Once entrustment is proved, it is for the accused to prove as to how the property entrusted was dealt with. In Jiwan Dass case [(1999) 2 SCC 530 : 1999 SCC (Cri) 288] the factual position was entirely different. It was held that the undertaking given in that case could not be held to be confession or admission. In the present case, the factual scenario as noticed by the trial court and the High Court is different. It was not only on the basis of the undertaking that the conviction was recorded, but the other evidence on record also unerringly proved entrustment. Therefore, it was for the accused to prove as to how the property entrusted with him was dealt with. No material was placed in that regard. Therefore, the courts below correctly held entrustment to have been proved. The concurrent findings of fact recorded by the courts below relating to 62 Spl.C.C.No.59 of 2018 entrustment and misappropriation in our view are well merited and fully justified on the basis of evidence on record and do not suffer from any perversity or patent error of law to warrant interference.
56. When the said postulate is carefully appreciated it could be clearly noticed that in the matters pertaining to the commission of offence of criminal breach of trust two distinct aspects are required to be proved. The first aspects consists of the creation of obligation in relation to the property or the dominion over which he is entrusted with and also the second leg of aspect which is required to be proved is that the party who is entrusted with the dominion over the same has acted dishonestly and contrary to the terms of the obligations created. The above said aspect is required to be appreciated in the instant case also. Already as discussed supra the first aspect is held to be proved and with respect to the second aspect a detailed consideration of the evidence is to be made. In the case on hand the prosecution had lead the evidence of the bank officials who had worked along with the accused during the period of demonetization. It is also pertinent to note that in 63 Spl.C.C.No.59 of 2018 order to establish the breach of trust it is not required for the prosecution to establish the precise mode of conversion or misappropriation or mis application by the accused over the domain of the property over which he has control. Hence in the instant case the prosecution has to prove that in order to constitute an offence u/S 409 of IPC necessarily the accused had entertained dishonest intention. The word dishonest intention is to be considered by taking recourse to the provision of Sec.24 of IPC wherein the definition for the word dishonestly has been given which is extracted for the sake of convenience and reads as below:
"Sec. 24: Dishonestly-whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'."
57. Hence the court has to consider whether the act of accused in not following the guidelines of the bank could be considered as an dishonest intention. In order to better appreciate the said contention once again the evidence which has been lead before the court is to be looked into. The accused while discharging his duty as Head Cashier at SBM Periyapatna 64 Spl.C.C.No.59 of 2018 had intentionally changed the denominations in the cash receipt which was not seen in the pay-in-slip. As per the evidence of P.W. 16 Mallamma would throw light in this regard. For instance she has deposed that she had deposited Rs.49,000/- through remittance slip which is marked as Ex.P.53 on 16.11.2016. However the cash receipt would indicate that she had deposited a sum of Rs.10,49,000/- which was specifically denied by the witness. It is also pertinent to note that she has deposed of depositing the amount through her daughter. Ex.P.54 is the statement of account pertaining to the said witness and the same would indicate that the cash deposit of Rs.49,000/- only was made on that day. However when the evidence of P.W.3 D.Santesh who had conducted the internal enquiry is carefully appreciated the cash deposit extract at Ex.P.51 would indicate that though the deposit was made for Rs.49,000/- the exact legal tenders which were tendered was shown as Rs.1000x1049 currency notes and in OUT column of the said cash denomination report which was mentioned as Rs.2000x500 which would clearly indicate an exchange of Rs.10 lakhs. The other important question which is required to be 65 Spl.C.C.No.59 of 2018 considered is whether the said cash report can be looked in to as a piece of evidence. No doubt the cash denomination report is produced before the court and marked as Ex.P.51, the same is supported by a certificate issued by the competent officer u/S 65-B Indian Evidence Act. The law in this regard is well settled with respect to acceptance of the said evidence. The court in this regard has relied upon the judgment of the Hon'ble Apex Court reported in (2020) 7 SCC 1 (Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal) where in it has been held as:
36. Despite the law so declared in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , wherein this Court made it clear that the special provisions of Sections 65-A and 65-B of the Evidence Act are a complete code in themselves when it comes to admissibility of evidence of information contained in electronic records, and also that a written certificate under Section 65-B(4) is a sine qua non for admissibility of such evidence, a discordant note was soon struck in Tomaso Bruno [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] . In this judgment, another three-Judge Bench dealt with 66 Spl.C.C.No.59 of 2018 the admissibility of evidence in a criminal case in which CCTV footage was sought to be relied upon in evidence. The Court held : (Tomaso Bruno case [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , SCC pp. 191-92, paras 24-
25) "24. With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant. Electronic documents stricto sensu are admitted as material evidence. With the amendment to the Evidence Act in 2000, Sections 65- A and 65-B were introduced into Chapter V relating to documentary evidence.
Section 65-A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65-B is complied with. The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65-B of the Evidence Act. Sub-
section (1) of Section 65-B makes admissible as a document, paper printout of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65-B. Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. PW 67 Spl.C.C.No.59 of 2018 13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it.
25. The production of scientific and electronic evidence in court as contemplated under Section 65-B of the Evidence Act is of great help to the investigating agency and also to the prosecution. The relevance of electronic evidence is also evident in the light of Mohd. Ajmal Amir Kasab v. State of Maharashtra [Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 :
(2012) 3 SCC (Cri) 481] , wherein production of transcripts of internet transactions helped the prosecution case a great deal in proving the guilt of the accused. Similarly, in State (NCT of Delhi) v. Navjot Sandhu [State (NCT of Delhi) v.
Navjot Sandhu, (2005) 11 SCC 600 :
2005 SCC (Cri) 1715] , the links between the slain terrorists and the masterminds of the attack were established only through phone call transcripts obtained from the mobile service providers."
38. We now come to the decision in Shafhi Mohammad [Shafhi Mohammad v.
State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 :
(2018) 1 SCC (Cri) 865] . In this case, by an order dated 30-1-2018 made by two Judges of this Court, it was stated : (SCC pp. 808-11, paras 21-30) 68 Spl.C.C.No.59 of 2018 "21. We have been taken through certain decisions which may be referred to. In Ram Singh v. Ram Singh [Ram Singh v.
Ram Singh, 1985 Supp SCC 611 : AIR 1986 SC 3] , a three-Judge Bench considered the said issue. English judgments in R. v. Maqsud Ali [R. v.
Maqsud Ali, (1966) 1 QB 688 : (1965) 3 WLR 229 : (1965) 2 All ER 464 (CCA)] and R. v. Robson [R. v. Robson, (1972) 1 WLR 651 (CCC)] and American Law as noted in American Jurisprudence 2d (Vol. 29) p. 494, were cited with approval to the effect that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence was held to be admissible subject to safeguards adopted by the Court about the authenticity of the same. In the case of tape-recording, it was observed that voice of the speaker must be duly identified, accuracy of the statement was required to be proved by the maker of the record, possibility of tampering was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant.
22. In Tukaram S. Dighole v. Manikrao Shivaji Kokate [Tukaram S. Dighole v.
Manikrao Shivaji Kokate, (2010) 4 SCC 329 : (2010) 2 SCC (Civ) 112 : (2010) 2 SCC (Cri) 826] , the same principle was 69 Spl.C.C.No.59 of 2018 reiterated. This Court observed that new techniques and devices are the order of the day. Though such devices are susceptible to tampering, no exhaustive rule could be laid down by which the admission of such evidence may be judged. Standard of proof of its authenticity and accuracy has to be more stringent than other documentary evidence.
23. In Tomaso Bruno v. State of U.P. [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , a three-Judge Bench observed that advancement of information technology and scientific temper must pervade the method of investigation. Electronic evidence was relevant to establish facts. Scientific and electronic evidence can be a great help to an investigating agency. Reference was made to the decisions of this Court in Mohd. Ajmal Amir Kasab v.
State of Maharashtra [Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 : (2012) 3 SCC (Cri) 481] and State (NCT of Delhi) v. Navjot Sandhu [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] .
24. We may, however, also refer to the judgment of this Court in Anvar P.V. v.
P.K. Basheer [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , delivered by a three-Judge Bench. In the said judgment in para 24 it was observed that electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65-B of the Evidence Act was not admissible. However, for the 70 Spl.C.C.No.59 of 2018 secondary evidence, procedure of Section 65-B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sandhu [State (NCT of Delhi) v.
Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65-B of the Evidence Act.
25. Though in view of the three-Judge Bench judgments in Tomaso Bruno [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] and Ram Singh [Ram Singh v. Ram Singh, 1985 Supp SCC 611 : AIR 1986 SC 3] , it can be safely held that electronic evidence is admissible and provisions under Sections 65-A and 65-B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65-B(4).
26. Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , this Court in para 24 clarified that primary evidence of electronic record was 71 Spl.C.C.No.59 of 2018 not covered under Sections 65-A and 65-B of the Evidence Act. Primary evidence is the document produced before the court and the expression "document" is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
27. The term "electronic record" is defined in Section 2(1)(t) of the Information Technology Act, 2000 as follows:
'2. (1)(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;'
28. The expression "data" is defined in Section 2(1)(o) of the Information Technology Act as follows:
'2. (1)(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;'
29. The applicability of procedural requirement under Section 65-B(4) of the 72 Spl.C.C.No.59 of 2018 Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65-B(4) is not always mandatory.
30. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65-B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies."
58. In another instance the evidence of P.W.25 P.S. Madhusudan is also required to be considered. It is his evidence that his mother Praphulla was maintaining SB account at 73 Spl.C.C.No.59 of 2018 Periyapatna since from the year 1992-1993 and had died in the year 2017. He has deposed that his mother was a house wife and as per the records his mother had not deposited any amount to an extent of Rs.5 lakhs to her account with a denomination of Rs.1000x500 and had not withdrawn cash of Rs.5,24,000/- with denomination of Rs.2000x200 and Rs.100x240. He has specifically deposed that his mother was a house wife and she did not had any personal earnings and was depositing the amount given by him and his father. However as per the records on the fateful day the self cheque drawn on the account of P.S. Praphulla with A/c No.54023165228 would clearly indicate that she had withdrawn only a sum of Rs.24,000/- and also the account extract at Ex.P.72 would also justify the same which would clearly indicate that a sum of Rs.24,000/- was withdrawn by the above said instrument however, the cash report extract would clearly indicate of exchanging the currency note for a sum of Rs.2000x200 and also Rs.1000x1240. The cash report which is produced through P.W. 3 Santesh is not seriously disputed and even during the course of cross examination of P.W. 25 Madhusudan who is non 74 Spl.C.C.No.59 of 2018 other than the son of deceased P.S. Praphulla the said aspect is not controverted. All that it has been suggested to him is that he was not present when the contents of Ex.P.78 was filled. And also it was suggested that he had not accompanied his mother at the time of withdrawing the said amount. The two instances which has been discussed above are only the tip of an iceberg and the entire details which is mentioned in the chart prepared by the court would clearly indicate the overt act of the accused. By looking in to the said aspects the moot aspect which is once again required to be considered is whether the act of accused would attract the rigors of Sec.409 of IPC. In this regard the court has relied upon the judgment furnished by the prosecution in the case reported in (2009) 11 SCC 737 (R Venkatakrishnan Vs. CBI) wherein it is held as :
"146. However, Sections 407 to 409 make special provisions for various cases in which property is entrusted to the enumerated categories of persons who commit the offence. Criminal breach of trust by a public servant is dealt with under Section 409:
"409. Criminal breach of trust by public servant, or by banker, merchant or agent.-- Whoever, being in any manner entrusted with property or with any dominion over property in his capacity of a public servant 75 Spl.C.C.No.59 of 2018 or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
This section classes together public servants, bankers, merchants, factors, brokers, attorneys and agents. The duties of such persons are of a highly confidential character, involving great powers of control, over the property entrusted to them and a breach of trust by such persons may often induce serious public and private calamity. High morality is expected of these persons. They are to discharge their duties honestly. The following are the essential ingredients of the offence under this section:
(1) The accused must be a public servant;
(2) He must have been entrusted, in such capacity with the property;
(3) He must have committed breach of trust in respect of such property.
147. In Raghunath Anant Govilkar v. State of Maharashtra [(2008) 11 SCC 289 : (2009) 1 SCC (Cri) 130 : (2008) 2 Scale 303] the Court noted that Section 406 which provides the punishment for criminal breach of trust simpliciter and Section 409 IPC are cognate offences in which the common component is criminal breach of trust. When an offence punishable under Section 406 is committed by a public servant (or holding any one other of the 76 Spl.C.C.No.59 of 2018 positions listed in the section) the offence would escalate to Section 409 of the Penal Code. In Supdt. and Remembrancer of Legal Affairs v. S.K. Roy [(1974) 4 SCC 230 : 1974 SCC (Cri) 399] , this Court held: (SCC p. 235, para 12) "12. To constitute an offence under Section 409 IPC, it is not required that misappropriation must necessarily take place after the creation of a legally correct entrustment or dominion over property. The entrustment may arise in 'any manner whatsoever'. That manner may or may not involve fraudulent conduct of the accused.
Section 409 IPC, covers dishonest misappropriation in both types of cases; that is to say, those where the receipt of property is itself fraudulent or improper and those where the public servant misappropriates what may have been quite properly and innocently received. All that is required is what may be described as 'entrustment' or acquisition of dominion over property in the capacity of a public servant who, as a result of it, becomes charged with a duty to act in a particular way, or, at least honestly."
148. In Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore-Cochin [AIR 1953 SC 478] , this Court held: (AIR p. 484, para 21) "21. ... to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there 77 Spl.C.C.No.59 of 2018 was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do."
149. In Ram Narayan Popli [(2003) 3 SCC 641 : 2003 SCC (Cri) 869] this Court stated the law, thus: (SCC p. 786, para 361) "361. To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him, that amounts to a criminal breach of trust as defined by Section 405. The section is relatable to property in a positive part and a negative part. The positive part deals with criminal misappropriation or conversion of the property and the negative part consists of dishonestly using or disposing of the property in violation of any direction and of law or any contract touching the discharge of trust."
157. Breach of trust simpliciter is not an offence as it is not associated with an intention which is dishonest. The term dishonestly defined in Section 24 IPC means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another. So the offence is completed when misappropriation of the property has been made dishonestly.
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Spl.C.C.No.59 of 2018 Accordingly, even a temporary misappropriation falls within the ambit of the said offence. (See the judgment of the Orissa High Court in Kartikeswar Nayak v. State [1996 Cri LJ 2253 (Ori)] .)
159. We must also make reference to the following observations of the Supreme Court in Ram Narayan Popli [(2003) 3 SCC 641 : 2003 SCC (Cri) 869] which was a case arising from the connected securities market scam, to bring home the point as to the impact of the transactions: (SCC p. 789, paras 380-82) "380. The offences in these cases were not of the conventional or traditional type. The ultimate objective was to use public money in a carefully planned manner for personal use with no right to do it.
381. Funds of the public bodies were utilised as if they were private funds. There was no legitimacy in the transactions. ... Their acts had serious repercussions on the economic system of the country, and the magnitude of financial impact involved in the present appeal is only the tip of the iceberg. There were several connected cases and interestingly some of the prosecution witnesses in the present case are stated to be accused in those cases. That itself explains the thread of self-perseverance running through their testimony. Therefore, the need to pierce the facadial smokescreen to unravel the truth to lift the veil so that the apparent, which is not real, can be avoided. The proverbial red herrings are to be ignored, to find out the guilt of the accused.
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382. The cause of the community deserves better treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community."
59. When the said aspect is carefully appreciated with the facts of the case it would clearly indicate that the accused who is entrusted with certain duty that too in the capacity of a public servant in the way of his business and as a banker certain responsibilities will be casted upon the banker and also the public servant. The last few lines in the above said judgment clearly indicates that the Hon'ble Apex court has time and again held that an economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless the consequences to the community at large. It is in this background the act committed by the accused is to be appreciated. As held by the Hon'ble Apex court the duty which has been casted upon the public servant is on higher parlance. 80
Spl.C.C.No.59 of 2018 In the instant case the accused though has taken up the defence that due to rush of work and also excess pressure during the demonetization period certain irregularities might have crept in is to be appreciated. As noticed from the tenor of cross examination the learned counsel for accused has suggested to the official witnesses i.e. P.W.37 Muchiram, P.W. 38 Jaishankar, P.W. 39 Mahadevkumar that due to rush of work the accused was unable to enter exactly the denominations. However the said aspect can not be accepted. At the same time the question which is required to be determined is whether the act of the accused can be brushed aside as mere irregularity. In this regard the main thrust is to ascertain whether the irregularities were committed with an intention to commit an illegal act and if so what was the repercussion of the said Act. It is also the settled principles of law that the irregularities tainted with the act of illegality and with motive and intention can be considered as an offence. It is also the settled principles of law that minor irregularities or some sort of deviations cannot be considered as the one which attracts the criminal liability. In this regard the court has 81 Spl.C.C.No.59 of 2018 relied upon the judgment of the Hon'ble Apex Court reported in (1996) 10 SCC 193 (C.Chenga Reddy and others Vs State of Andra Pradesh) wherein it is held as:
22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment or work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence. In Abdulla Mohd. Pagarkar Vs State (Union Territory of Goa, Daman and Diu) under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper.82
Spl.C.C.No.59 of 2018 That because of the actions of the appellants in breach of codal provisions, instructions and procedural safeguards, the State may have suffered financially, particularly by allotment of work on nomination basis without inviting tenders, but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them. We may reiterate that once the report, Ex.P.11, is ruled out of consideration as inadmissible, then it is not safe to rely on the mere impressions of the witnesses to hold the appellants guilty of the offences alleged against them. The prosecution has failed to establish that in 1979-80, no work of jungle clearance in the Gandipalem Project Division was undertaken and that false and fabricated documents were prepared with a view to misappropriate government funds. The prosecution has not even been able to establish that less work of jungle clearance was undertaken but payment was shown to have been made for excessive work and some amount out of the payments made for the work was thus misappropriated by the appellants in connivance with the contractors. The conviction and sentence imposed against the appellants (which had been reduced by the High Court to a token sentence) under the circumstances cannot be sustained and we accordingly accept the appeal and set aside their conviction and sentence. Fine paid by the appellants shall be refunded to them.
37. It appears to us, that influenced by the inadmissible report Ex.P.10, the courts below concluded that the appellants had committed the offence alleged against them. 83
Spl.C.C.No.59 of 2018 None of the witnesses except PW.8, who as already noticed, was not competent to depose in that behalf before he visited the site only in 1984 and not prior thereto have stated that no work of jungle clearance was done at the site and the allegation with regard to less work having been done is based upon calculations made five years later by PW.8, which does not afford conclusive evidence against the appellants. It is a matter of common sense and even the prosecution witnesses have accepted that it was impossible to know in 1984 whether jungle- clearance work had been carried out and if so to what extent in the year 1979 on the basis of an inspection carried out five years later in the year 1984. The maximum that can be said against the appellants is that they committed some indiscretion in the matter of allotment of jungle-clearance work preparation of estimates, drawing up of the agreements and making payments. These acts of omission and commission do give rise to a strong suspicion that the appellants so acted with a view to misappropriate government funds but suspicion, howsoever strong, cannot take the place of proof. The prosecution has in our opinion failed to establish the case against the appellants beyond a reasonable doubt. The conviction and sentence imposed upon the appellants, under the circumstances, cannot be sustained and we accordingly accept the appeal and set aside their conviction and sentence. Fine shall be refunded to the appellants.
52. The above statement of PW 17, when considered in the light of the inspection 84 Spl.C.C.No.59 of 2018 report of the Chief Engineer dated 29.7.1979, shows that jungle clearance work was being done in 1979-80, PW 21 a resident of Rajapulan who has his tailoring shop situate on the left bank of Kodavalur tank for the last about 12-13 years deposed at the trial that about 8-9 years ago he had seen some officials getting jungle cleared on the banks of that channel by engaging coolies. The evidence of this witness, thus, also shows that jungle clearance work was being done at the site in question in 1979-80 and to that extent PW 21 corroborates the testimony of Assistant Engineer P 17. It is nobody's case that jungle clearance work was done in 1979- 80 through departmental laskars and, therefore, the legitimate inference to be drawn from the evidence of PW 21 is that jungle clearance work was being done at the site in 1979-80 through the appellant. PW 18 is a bus conductor, He has a hut on the Northern bank of the channel since 1977. According to him villagers used to cut and take away Karratumma plants growing on the channel banks. He denied any knowledge as to whether contractors of the PWD department had cleared Karratumma plants growing on the banks of Kodavalur tank supply channel during 1979-80. As against this material, is the evidence of PW 8 who visited the site in 1984 and stated in his report that no work of jungle clearance had been done in 1979 as there was growth of juliflora at the site when he visited it. Finding the growth of Juliflora in 1984 could not lead to an irresistible conclusion that the jungle had not been cleared in 1.1979-80. In this connection, the evidence of PW 11 has significance. This witness admitted during his cross-
examination that juliflora grows rather fast 85 Spl.C.C.No.59 of 2018 and is a wild growth. It could not have stopped growing between 1979 and 1984, Since, the prosecution witnesses PW 17 and 21 have admitted that in 1979-80, work of clearance of juliflora jungle was being done at the site and it is no body's case that it was being done departmentally, the conclusion is irresistible that the same, had been done through the agency of the appellant and the charge of conspiracy must fail. There have been some irregularities committed in the matter of allotment of work to the appellant or breach of codal provisions, circulars and departmental instructions, for preparation of estimates etc. and those irregularities give rise to a strong suspicion in regard to the bonafides of the officials of the department and their link with the appellant, but that suspicion cannot be a substitute of proof. The courts below appear to have drawn inferences by placing the burden of proving innocence on the appellant which is an impermissible course. In our opinion none of the circumstances relied upon by the prosecution against the appellant can be said to have been proved satisfactorily and all those circumstances, which are not of any clinching nature, even if held to be proved do not complete the chain of evidence so complete as to lead to an irresistible conclusion consistent only with the hypothesis of the guilt of the appellant and wholly inconsistent with his innocence. The prosecution has not established the case against the appellant beyond a reasonable doubt. This appeal, there-fore, succeeds and is allowed. The conviction and sentence of the appellant is hereby set aside. Fine, if paid by the appellant shall be refunded to him. The 86 Spl.C.C.No.59 of 2018 appellant is on bail. His bail bonds shall stand discharged.
60. The said aspect was clearly discussed by the Hon'ble Apex court in another judgment reported in (1980)3 SCC 110 (Abdulla Mohd. Pagarkar v. State) wherein it is held as:
19. Now this is hardly a proper approach to the requirements of proof in relation to a criminal charge. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the State to brief out, beyond all reasonable doubt, that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the Government. It is true that the total number of labourers working on a single day has been put by the prosecution witnesses mentioned above at 200 or less, while according to the summaries appended to the bills it varied on an average from 370 to
756. But then is it safe to rely on the mere impression of the prosecution witnesses, testified too long after the work had been executed, about the actual number of labourers employed from time to time? The answer must obviously be in the negative and the justification for this answer is furnished by the variation in the number of labour employed from witness to witness.
24. Learned counsel for the State sought to buttress the evidence which we have just 87 Spl.C.C.No.59 of 2018 above discussed with the findings recorded by the learned Special Judge and detailed as Items (a) to (e) in para 9 and Items (i) and (iii) in para 10 of this judgment. Those findings were affirmed by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be restated here, that they were correctly arrived at. But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant rules of the G.F.R. and even of ordinary norms of procedural behaviour of government officials and contractors in the matter of execution of works undertaken by the Government. Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out.
61. The said judgment clearly mandates the existence of motive and intention and also a dishonest act on part of the accused. In the instant case as already discussed above it would clearly indicate that the act of the accused person cannot be construed as a mere act without any taint of illegality. The accused who is alleged to be very busy during the course of demonetization had all the time in the world to manipulate the 88 Spl.C.C.No.59 of 2018 cash register extract which has been produced before the court. As already discussed supra the veracity of the said document can not be disputed in the wake of production of certificate under Sec.65-B of Indian Evidence Act. By considering all the said aspects the prosecution has successfully proved the commission of breach of trust by the accused person.
62. The other aspect which is required to be considered is whether the act of the accused would attract the provisions of Sec.477-A of IPC. In the instant case the prosecution has already produced materials to indicate the manner in which the pay-in-slip were tampered and certain denominations which were shown in the cash receipt register were not tallying with the pay-in-slip produced by the customers. Once again at the cost of repetition it is to be noted that the chart which has been prepared by the court in para No.53 would clearly indicate the conduct of the accused in changing the denomination. In order to consider the ingredients of Sec.477 (A) the following aspects is required to be proved by the prosecution. The said aspects are discussed in seriatim:
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Spl.C.C.No.59 of 2018 a. That at the relevant time the accused was a public servant.
b. That acting in that capacity he had destroyed, altered, mutilated or falsified any book, paper, writing, valuable security or account which belonged to or is in possession of his employer or has been received by him for and on behalf of his employer.
c. That he did so willfully with an intention to defraud.
63. The above said ingredients when applied to the case on hand it would indicate that the accused was discharging his duty as a public servant at relevant point of time during the period of demonetization. Apart from that as already discussed supra in the earlier part of my judgment it is clearly held that the pay-in-slip were altered by mentioning wrong denominations in the cash register extract. No doubt the submission of the accused counsel is that he had not tampered or altered the pay- in-slips and also no actual loss was caused to the bank the same is not tenable. The modus operandi of the accused in commission of offence is to be segregated and the same requires to be considered in a different footing in order to ascertain 90 Spl.C.C.No.59 of 2018 whether it was done by the accused willfully and with an intention to defraud. It has been specifically argued by the learned counsel for the accused that the SWAP method is normally adopted in the banking parlance and the same can not be construed as an illegal act. It is pertinent to note that during the course of cross examination of P.W. 18 K.Vijaykarthik who was the Single Window Operator of the said branch was suggested and enquired with respect to the SWAP method being adopted in the banking parlance. He has specifically deposed while answering to the question pertaining to SWAP method that if a customer comes with Rs.1,000/- currency notes for change the same would be shown in the withdrawal column mentioned as OUT column as Rs.100x10 denomination and the same would be handed over the customers. However he has specifically deposed that the SWAP method was applied normally in banking transaction. Once again it was suggested to him that the accused was entrusted with 7 to 8 additional responsibilities to deal with the cash transaction and he was getting disturbed and mentally distracted. However the main aspect which is required to be considered is the next suggestion 91 Spl.C.C.No.59 of 2018 which has been made by the accused himself wherein it was suggested that the hard copy of the print out taken out by the cashiers was to be verified by the cashiers and also the manager at the end of the day and also the day to day transaction would be reflected in the system as cash IN and cash OUT with details of denominations. The said suggestion was answered in the affirmative would clearly indicate the accused admitting the cash transactions extracts which is produced. When the same is admitted by the accused the onus of answering about its discrepancies would obviously shift towards the accused. No doubt it is the well settled principles of law that the prosecution has to prove their case beyond reasonable doubt. What amounts to attracting of Sec.477-A of IPC and also the fact of "suggestio falsi" and "suppressio veri" has been laid down by the Hon'ble Apex Court in the judgment reported in (1976) 2 SCC 819 (S Harnam Singh Vs. State (Delhi Administration) ) wherein it has held as :
13. An analysis of this section would show that in order to bring home an offence under this provision, the prosecution has to establish (1) that at the relevant time, the accused was a 92 Spl.C.C.No.59 of 2018 clerk, officer or servant; and (2) that acting in that capacity he destroyed, altered, mutilated or falsified any book, paper, writing, valuable security or account which belonged to or is in the possession of his employer or has been received by him for and on behalf of his employer etc.; (3) that he did so wilfully and with intent to defraud.
18. "Wilfully" as used in Section 477-A means "intentionally" or "deliberately".
There can be no difficulty in holding that these entries were made by the appellant "wilfully". The appellant must have been aware that the Divisional Superintendent had by an order prohibited the booking of this class of goods via Barabanki from and on January 11, 1967. But from the mere fact that these entries were made "wilfully", it does not necessarily follow that he did so "with intent to defraud"
within the meaning of Section 477-A of the Penal Code. The Code does not contain any precise and specific definition of the words "intent to defraud". However, it has been settled by a catena of authorities that "intent to defraud" contains two elements viz. deceit and injury. A person is said to deceive another when by practising "suggestio falsi" or "suppressio veri" or both he intentionally induces another to believe a thing to be true, which he knows to be false or does not believe to be true. "Injury" has been defined in Section 44 of the Code as denoting "any harm whatever illegally caused to any person, in body, mind, reputation or property".93
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64. The said principles laid down by the Hon'ble Apex court is aptly applicable to the facts of the case wherein it has been held that if the act was committed willfully by the accused with a deliberate intention of fraud can be ascertained the same would indicate the existence of mens rea. Further in this regard the prosecution has contended that the accused who was the head cashier was entrusted with the cash transaction. It is also relevant to note that the said aspect of entrustment of work is not denied by the accused at any point of time. Under this circumstances if the accused is unable to explain the circumstances due to which the denomination in the cash register extract was at variance from that of the pay-in-slip of the customer the same has to be viewed against that of accused. However the question which requires determination is whether the accused is bound to explain any circumstances. The provisions of Sec.106 of Indian Evidence Act is to be reckoned in this regard. For the sake of convenience and brevity the provisions of Sec.106 of Indian Evidence Act is extracted which reads as :
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106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
65. The law is well settled that the provisions of Sec. 106 of Indian Evidence Act is to be read as exception to the principle that the prosecution has to establish their case beyond reasonable doubt. Apart from that it would also be appropriate to consider whether the scope of Sec.106 of Indian Evidence Act can be extended in case of accused alleged to have committed economic offences. The provision of Sec. 106 of Indian Evidence Act is ample clear that no such distinction is made with respect to other offences and also the offence under special enactment. However at the same time the court is fully aware of the factual aspect of law that the bounden duty of prosecution never shifts but only the preponderance and onus of proof will shift upon the accused in certain circumstances. In the instant case at the 95 Spl.C.C.No.59 of 2018 cost of repetition it is to be reiterated that the accused was working as Head Cashier of the bank during the period of demonetization. It has to be kept in mind that during the said period the accused was entrusted with the work of taking care of the cash transactions that had taken place in the said branch. As already discussed supra the accused cannot deny the issuance of the cash report which has been marked along with the pay-in-slip. During the course of evidence of P.W.3 D.Santesh he has deposed that they had verified the accounts pertaining to the relevant period and as such they had verified on the basis of the cash report which was maintained in the branch. In the earlier part of the judgment already the court has discussed about the cash report extract/teller extract which is the basis for his report. Under this circumstances if only the accused takes up the defence that due to excessive work pressure he was unable to maintain the same properly, the same would not be suffice to discharge his liability. After all the accused was the person who was entrusted with the work of taking care of the account extract. Even if it is accepted for the sake of argument that enormous pressure was caused on the 96 Spl.C.C.No.59 of 2018 officials during the said point of time, the same will not absolve the accused from explaining the necessity to change the denominations in the cash register report. Apart from that it is also an admitted fact that the accused was Head Cashier and as such a responsibility will be casted upon him to take care of the account transactions that takes place in his branch. Since the said aspect was completely with in his knowledge a duty is casted upon him to explain the circumstances which was known only to him. In this regard the judgment of the Hon'ble Apex Court relied upon by the prosecution is to be considered. In the judgment report by the Hon'ble Apex court reported in (1981) 3 SCC 199 (State of Maharastra Vs. Wasudeo Ramachandra Kaidalwar) wherein it has been held as :
13. That takes us to the difficult question as to the nature and extent of the burden of proof under Section 5(1)(e) of the Act. The expression "burden of proof" has two distinct meanings (1) the legal burden i.e. the burden of establishing the guilt, and (2) the evidential burden i.e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the 97 Spl.C.C.No.59 of 2018 general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities.
The ingredients of the offence of criminal misconduct under Section 5(2) read with Section 5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under Section 5(1)(e), namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate 98 Spl.C.C.No.59 of 2018 assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Section 5(1)(e) cannot be higher than the test laid by the Court in Jhingan case [AIR 1966 SC 1762 : (1966) 3 SCR 736 : 1966 Cri LJ 1357] i.e. to establish his case by a preponderance of probability. That test was laid down by the court following the dictum of Viscount Sankey, L.C., in Woolmington v.
Director of Public Prosecutions [1935 AC 462] . The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. As laid down in Swamy case [AIR 1960 SC 7 : (1960) 1 SCR 461 : 1960 Cri LJ 131] , the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of Section 106 of the Evidence Act, 1872. Section 106 reads:
"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
In this connection, the phrase "burden of proof" is clearly used in the secondary sense, namely, the duty of introducing evidence. The 99 Spl.C.C.No.59 of 2018 nature and extent of the burden cast on the accused is well-settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability.
14. Such being the law, the question whether or not the respondent had established a preponderance of probability is a matter relating to appreciation of evidence. On a consideration of the evidence adduced by the respondent, the High Court has taken the view that it is not possible to exclude the possibility that the property found in possession of the respondent belonged to his father- in-law, Hanumanthu. We have been taken through the evidence and we cannot say that the finding reached by the High Court is either manifestly wrong or perverse. Maybe, this Court, on a reappraisal of the evidence, could have come to a contrary conclusion. That, however, is hardly a ground for interference with an order of acquittal. There are no compelling reasons to interfere with the order of acquittal, particularly when there is overwhelming evidence led by the respondent showing that his father-
in-law, Hanumanthu, was a man of affluent circumstances. There is no denying the fact that Hanumanthu was the pairokar of Raja Dharmarao, Zamindar of Aheri Estate and by his close association with the Zamindar, had amassed considerable wealth.
More so, because two of his sisters 100 Spl.C.C.No.59 of 2018 were the kept mistresses of the Zamindar and amply provided for.
16. All this evidence is sufficient to create a doubt as to whether the respondent was in possession of disproportionate assets. There is certainly a preponderance of probability that the property found in the possession of the respondent did not belong to him but belonged to his father-in-law, Hanumanthu.
66. When the said judgment is applied to the case on hand it clearly defines that the burden of proof has two distinct meanings wherein the legal burden of establishing the guilt will always be on the prosecution and also the other aspect of evidential burden will also be on prosecution. It is also the settled principles of law that the burden of proving everything essential to the case rests exclusively on the prosecution. However at the same time the exception to the general rule that the burden proof lies exclusively with the prosecution is a situation wherein the fact will be exclusively within the knowledge of accused person. Further in the instant case the accused who was entrusted with the work was fully aware of the importance of the cash report extract. If only the prosecution had rested upon some stray entries in the cash report extract 101 Spl.C.C.No.59 of 2018 the same would have absolved the accused as it would indicate that due to work pressure some mistake had crept in. However as discussed in the earlier part of my judgment it is pertinent to note that several entries were shown into the account and in some cases it is pertinent to note that a huge amount of Rs.20 lakh is also shown. All these aspects would cast a pointing finger towards to accused which does require explanation from him. Under this circumstances the contention of the prosecution that the accused should have explained about the same is correct. The court has also appreciated the statement of the accused recorded u/S 313 of Cr.P.C. more specifically some of the facts were in huge variations were pointed out is also put forth to the accused and for instance the statement of P.W.25 P.S. Madhusudan at question No.131 clearly indicates that it was specifically asked to him that as per the evidence of P.S.Madhusudan his deceased mother had only encashed a self cheque on 23.11.2016 for Rs.24,000/- and his mother had not deposited Rs.5 lakhs in her account with denominations of Rs.1000x500 and the accused has denied it to be false. Apart from that it is also pertinent to note that another question 102 Spl.C.C.No.59 of 2018 which was posed to accused was with respect to evidence of P.W.14 Latha P.R. who was the system operator at Mysore District Government Officers and other Employees Housing Co- operative soceity with A/c No.64184600035 has deposed that on 16.11.2016 she had deposited Rs.1,50,000/- with denomination of Rs.1000x150 and she had not deposited amount in any other denomination. Once again the accused has stated that the said evidence is false. For this particular evidence recourse have to be taken in to the evidence of P.W. 3 D.Santesh who in his chief examination has specifically pointed out the said irregularity and even the said question was posed to the accused. However the accused has specifically denied and the said question was posed in question No.42 and it was specifically asked to the accused with respect to the denomination mentioned in the OUT column of the cash register extract that it was Rs.2000x100 wherein a sum of Rs.2 lakhs were exchanged. Even for the said question the accused has denied. At the same time the accused has not offered any explanation with respect to the incriminating materials available against him. The stage under Sec.313 of Cr.P.C. is not a bald 103 Spl.C.C.No.59 of 2018 entity but it is a stage wherein an opportunity is given to the accused to explain the circumstances over which he had got special knowledge. In this regard the court had relied upon the judgment of the Hon'ble Apex Court reported in (2021) 6 SCC 1(Satbir Singh v. State of Haryana) wherein it is held as:
38.6. It is a matter of grave concern that, often, trial courts record the statement under Section 313 CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defence. It ought to be noted that the examination of an accused under Section 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice "audi alteram partem" as it enables the accused to offer an explanation for the incriminatory material appearing against him.
Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution. Further in another judgment rendered by the Hon'ble Apex court the scope of Section 313 of Cr P C is clearly explained in the judgment rendered in (2014) 4 SCC 9(Phula Singh v. State of H.P., ) wherein it is held as:
9. Even in the statement under Section 313 CrPC, the appellant answered every question saying "I do not know" or "it is incorrect" but when he was asked as to whether he wanted to say anything else, he answered as under:
"I am innocent and Prabhat Chand had lodged a false case against him, because he had encroached the land of Shri Vakil Chand as per his demarcation."104
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10. We do not find any force in the submission advanced by Shri D.K. Garg that it is the prosecution which has to establish each and every fact and the accused has a right only to maintain silence.
11. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide Ramnaresh v. State of Chhattisgarh [(2012) 4 SCC 257 : (2012) 2 SCC (Cri) 382] , Munish Mubar v. State of Haryana [(2012) 10 SCC 464 : (2013) 1 SCC (Cri) 52 : AIR 2013 SC 912] and Raj Kumar Singh v. State of Rajasthan [(2013) 5 SCC 722 :
(2013) 4 SCC (Cri) 812 : AIR 2013 SC 3150] .)
67. The said aspect is to be appreciated with the fact of the case. Even in the instant case the accused when provided with an opportunity to offer an explanation has not explained the circumstances which was specifically within his knowledge.
During the course of cross examination it has been suggested to the witness that the accused was also entrusted with the currency chest operation for which the witness has deposed that 105 Spl.C.C.No.59 of 2018 it was a routine work. It is also relevant to note that the entire aspect had come to the notice on the basis of the report which was furnished by P.W. 3 D.Santesh at Ex.P.7. As per the said report it is noticed that a separate chart was also prepared by the officer who was deputed to conduct enquiry and on that it has been suggested that the third sheet which consist of the chart was a imaginary one and also it has been elucidated from the witness that the HRMS code was the sole source of evidence indicating which cashier had initiated transaction. This particular evidence assumes importance since no dispute has been raised by the accused during the entire course of trial with respect to the HRMS code. From all the official witnesses of the bank it was elucidated by the prosecution that the HRMS code of accused was 6250904. the said aspect is no where denied by the accused and even during the course of recording his 313 statement he was admitted the same. No doubt it is also the settled principles of law that the court can not solely rely upon the statement of accused recorded u/S 313 of Cr.P.C. for the purpose of conviction. However at the same time the accused is also entrusted with certain duty to explain the incriminating 106 Spl.C.C.No.59 of 2018 materials available against him. Already the said aspect has been explained by way of dictum by the Hon'ble Apex court in the judgment mentioned supra.
68. The learned prosecutor has also vehemently argued that the the statement of the accused which was recorded before the officers of the bank at an undisputed point of time is to be considered and relied upon. It is submitted by the learned prosecutor that as per his statement which is marked as Ex.P.8 would clearly indicate that he had confessed of committing the said offence. Hence it would be appropriate to consider the said document at Ex.P.8 to ascertain whether the same can be considered as extra judicial confession. It is pertinent to note that in the said letter addressed to the Branch Manager on 17.12.2016 the accused has specifically stated that he had exchanged a sum of Rs.1,60,00,000/- to Rs.1,70,00,000/- infavor one Manoj Kumar S/o Arjun Lal of Periyapatna. He has stated that without expecting any favor from him he had got exchanged the said SBN. The said aspect was witnessed by P.W.30 Harish M.H. and P.W. 7 Arun Sagar. However what is required to be considered is whether the said statement can be 107 Spl.C.C.No.59 of 2018 considered as extra judicial confession. The law with respect to extra judicial confession has been laid down by the Hon'ble Apex Court in the judgment reported in (1999) 9 SCC 30 (Balbir Singh Vs. State of Punjab) wherein it has held as :
3. The only evidence against the appellant was an extra-judicial confession stated to have been made by the appellant before the Sarpanch of the village, the dying declaration of Sukhwinder Kaur recorded by the police on 10-12-1990 and the dying declaration recorded by the Judicial Magistrate on 11-12-1990.
Both the trial court and the High Court relied upon the two dying declarations and also the extra-judicial confession for the purpose of convicting the accused. It was submitted by the learned counsel for the appellant that the courts below have committed a grave error in relying upon the extra-judicial confession as it was highly improbable that in the absence of any relationship with the Sarpanch or for any other good reason, the appellant would have gone to the Sarpanch and confessed that he had purchased the poisonous tablets which led to the death of Sukhwinder Kaur. If what the Sarpanch had deposed was really true, the investigating officer would have then tried to find out from whose shop the tablets were purchased. No such attempt was made. The evidence of the Sarpanch is not such as could have been accepted without any independent corroboration. Even the trial court and the High Court have not considered the said extra-judicial confession as sufficient to prove the guilt of the appellant. It has been regarded as a piece of evidence furnishing independent corroboration to the dying declarations. An extra-judicial confession even if believed is considered a very weak piece of evidence and ordinarily is not accepted without independent corroboration. In this case, it was of a doubtful character and therefore it was wrong to rely upon it 108 Spl.C.C.No.59 of 2018 and hold that it afforded good corroboration to the dying declarations.
69. Further in another judgment which is relied upon by the learned prosecutor of the Hon'ble Apex Court reported in (2008) 13 SCC 257 (Kusuma Ankamma Rao Vs. State of Andhra Pradesh) wherein it has been held as:
11. "18. Confessions may be divided into two classes i.e. judicial and extra-judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-
judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the [Code of Criminal Procedure, 1973 (in short 'the Code')] or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra-judicial confessions, two questions arise: (i) were they made voluntarily? and (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is 109 Spl.C.C.No.59 of 2018 not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24. The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so 110 Spl.C.C.No.59 of 2018 contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe's Evidence, 9th Edn., p. 284.) A promise is always attached to the confession alternative while a threat is always attached to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise, etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words 'appear to him' in the last part of the section refer to the mentality of the accused.
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19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak of such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
(See State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] , SCC pp. 190-92, paras 18-19.)
70. When the said judgment are appreciated with the facts of the case the position of law which would emerge is that the court may accept the said confession statement if it is satisfied that the same was voluntary and it was based on his 112 Spl.C.C.No.59 of 2018 free will is required to be proved by the prosecution. It is also relevant to note that as per Ex.P.164 the FIR initially the case came to be registered against the present accused and also against Manoj Kumar whose name the present accused has raised in his alleged confession statement. Once again at the cost of repetition what is required to be appreciated is whether the said statement can be looked into as a substantive piece of evidence. The Hon'ble Apex court has repeatedly held in various dictum that the confession statement can only be considered as any other statement in the event it is shrouded in doubt. In instant case as per the evidence of P.W.37 Muchiram who was the Branch Manager at relevant point of time has stated that the accused had given confession statement in his presence only. However the said document at Ex.P.8 is not indicating of his presence and when the same is compared with the evidence of P.W.30 Harish M.H. it is not elucidated from him by the prosecution with respect to the confession made by the accused person. Apart from that the confession statement even if it is accepted for the sake of argument the same would not help the case of prosecution as the accused has stated of helping one 113 Spl.C.C.No.59 of 2018 Manoj Kumar who was initially arrayed as accused No.2. However the IO himself had come to a conclusion that no materials were forthcoming during the course of evidence with respect to the over tact of accused No.2 Manoj Kumar, then the prosecution has to offer an explanation that how the said statement can be considered as a substantive piece of evidence. Repeatedly it has been held by the superior courts that the confession statement should be unblemished and should not be tainted with any shrouds of doubt. If the prosecution intends to relay upon the said statement then obviously the other aspect of explanation that why Manoj Kumar was dropped from the charge sheet and also the non availability of materials against him should be explained. In other words the prosecution cannot be permitted to blow hot and cold in one breath. Under the circumstances the statement can not be accepted as extra judicial confession which comes with in the purview of Sec.24 of Indian Evidence Act. Further it is noticed from the records that the prosecution has relied upon the document at Ex.P.15 which clearly explains that the accused had committed the offence. For instance the said exhibit consist of the detailed chart and in 114 Spl.C.C.No.59 of 2018 mode in which the circular of the RBI was flaunted and also the manner in which the exchange of SBN notes and also the change of denominations were made by the accused. The cash verification report by the internal enquiry officer was placed on record as Ex.P.15(a) and also the chart would indicate the modus operandi. Further in the said report it has been reported that in the majority transactions SWAP method was adopted by the accused for exchanging the SBN notes and also he had adjusted the differences in the denominations of physical and system balance SWAP method and also by receiving cash payments and exchanging the same. The said aspect was elucidated from P.W. 3 D.Santesh and also the interim report at Ex.P.7 would justify the same. Under this circumstances it is clear that the accused who was entrusted with domine of trust has breached the same and accordingly the report furnished by the enquiry officer i.e. P.W. 3 D.Santesh and C.W.3 Suresh Bellubbi stands proved by the prosecution beyond reasonable doubt. As already discussed supra an opportunity was also afforded to the accused to explain the circumstances at the time of recording the statement u/S 313 of Cr.P.C. Even though the 115 Spl.C.C.No.59 of 2018 silence or mere denial of the accused can not be a sole ground for convicting him, at the same time the same can be construed as one of the ground which point out towards his guilt. Hence the prosecution has proved that the accused had breached the trust entrusted on him by the bank by flaunting the circulars of RBI causing loss to the exchequer to an extent of Rs.2,18,46,300/-. In the totality of the facts and circumstances of the case the prosecution has proved the commission of offence by the accused u/S 409 of IPC and also u/S 477 -A of IPC. Sequentially the Point No.2 and point No.3 are answered in Affirmative.
71. Point No.4 : Now with respect to the allegations of Sec.13(2) r/w 13 (1)(c)and (d)(iii) of Prevention of Corruption Act 1988, the main allegation as noticed above is leveled against accused that he being the public servant had committed a criminal mis-conduct as he had dishonestly and fraudulently misappropriated or otherwise conferred the property entrusted to him by allowing the other person to do so and as per Sec. 116
Spl.C.C.No.59 of 2018 13(d) the relevant portion which is applicable is extracted for the sake of convenience which reads as Sec.13 (1)(d)(ii) and (iii).
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
72. When the said aspect is carefully appreciated and deduced to the case on hand, there is no dispute with respect to the fact that the accused was the Head Cashier of Periyapatna branch at the relevant point of time and he was the public servant discharging duty by acting as a Head Cashier of State Bank of Mysore. The other aspect which requires to be appreciated is whether the allegations which are leveled against him are sufficient to hold that he had committed criminal mis- conduct by dishonestly misappropriating the property entrusted to him under his control as a public servant. This particular charge has to be considered with the evidence of PW.3 i.e. D. Santesh who has explained the basis of arriving at a conclusion that the accused had defrauded the bank by 117 Spl.C.C.No.59 of 2018 flaunting with the guidelines issued by the Reserve Bank of India during the period of demonetization. What amounts to misconduct has been laid down by the Hon'ble Apex court in the judgment reported in (2009)8 SCC 617 (State of M.P. v. Sheetla Sahai) wherein it is held as:
46. In Inspector Prem Chand v. Govt. of NCT of Delhi [(2007) 4 SCC 566 : (2007) 2 SCC (L&S) 58 : 2007 AIR SCW 2532] this Court observed: (SCC pp. 570-71, paras 10-11) "10. In State of Punjab v. Ram Singh [(1992) 4 SCC 54 : 1992 SCC (L&S) 793 : (1992) 21 ATC 435] it was stated: (SCC pp. 57-58, para
5) '5. Misconduct has been defined in Black's Law Dictionary, 6th Edn., at p. 999, thus:
"Misconduct.--A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness."
Misconduct in office has been defined as:
"Misconduct in office.--Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act." ' 118 Spl.C.C.No.59 of 2018
11. In P. Ramanatha Aiyar's Law Lexicon, 3rd Edn., at p. 3027, the term 'misconduct' has been defined as under:
'Misconduct.--The term "misconduct" implies a wrongful intention, and not a mere error of judgment.
*** Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word "misconduct" is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being, construed. "Misconduct" literally means wrong conduct or improper conduct.' (See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju [(2006) 3 SCC 143 : 2006 SCC (L&S) 480] .)"
73. As per the said dictum the misconduct can be construed as not a mere error in judgment but an intentional act. In the instant case as per the earlier discussion it is clearly evidenced that there were lot of variations with respect to the pay-in-slip filed by the customers at the time of depositing the amount and also the cash report register extract which was generated by the Head Cashier indicated of depositing demonetized SBN in order to facilitate its exchange. Hence it is 119 Spl.C.C.No.59 of 2018 clear that it was not a mere act of error in judgment and it was a deliberate act on the part of the accused. Further whether the prosecution has established the same is required to be examined. When the above said aspects are considered in seriatim firstly the court has already dealt in detail with respect to the overtact of accused while discharging duty as Head Cashier. Likewise the Judgment of the Hon'ble Apex Court which is reported in (1996) 10 SCC 193 (C. Chenga Reddy and others Vs State of A.P), wherein the question of dishonest intention is laid down by the Hon'ble Apex Court is to be appreciated in the case on hand. By looking into the said aspects the first two contentions of the prosecution that the accused had intentionally changed the denomination in the cash register extract and subsequently in the OUT column he had deliberately shown the demonetized currency notes which was entirely different from the pay-in-slips filed by the customers would clearly indicate the dishonest intention and also the deliberate act on the part of the accused person. In this regard the court has relied upon the judgment of the 120 Spl.C.C.No.59 of 2018 Hon'ble Apex Court reported in (2009) 11 SCC 737 (R.Venkatakrishnan Vs. CBI) wherein it has been held as:
146. However, Sections 407 to 409 make special provisions for various cases in which property is entrusted to the enumerated categories of persons who commit the offence.
Criminal breach of trust by a public servant is dealt with under Section 409:
"409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
This section classes together public servants, bankers, merchants, factors, brokers, attorneys and agents. The duties of such persons are of a highly confidential character, involving great powers of control, over the property entrusted to them and a breach of trust by such persons may often induce serious public and private calamity. High morality is expected of these persons. They are to discharge their duties honestly.
121
Spl.C.C.No.59 of 2018 The following are the essential ingredients of the offence under this section:
(1) The accused must be a public servant;
(2) He must have been entrusted, in such capacity with the property;
(3) He must have committed breach of trust in respect of such property.
74. In this regard the Judgment of the Hon'ble Apex Court reported in 1980 (3) SCC 110 (Abdulla Mohammed Pagarkar Vs State) wherein it has been held as:-
19. Now this is hardly a proper approach to the requirements of proof in relation to a criminal charge. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the State to brief out, beyond all reasonable doubt, that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the Government. It is true that the total number of labourers working on a single day has been put by the prosecution witnesses mentioned above at 200 or less, while according to the summaries appended to the bills it varied on an average from 370 to
756. But then is it safe to rely on the mere impression of the prosecution witnesses, testified too long after the work had been executed, about the actual number of labourers employed from time to time? The 122 Spl.C.C.No.59 of 2018 answer must obviously be in the negative and the justification for this answer is furnished by the variation in the number of labour employed from witness to witness.
24. Learned counsel for the State sought to buttress the evidence which we have just above discussed with the findings recorded by the learned Special Judge and detailed as Items (a) to (e) in para 9 and Items (i) and (iii) in para 10 of this judgment. Those findings were affirmed by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be restated here, that they were correctly arrived at. But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant rules of the G.F.R. and even of ordinary norms of procedural behaviour of government officials and contractors in the matter of execution of works undertaken by the Government. Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out.
75. The learned PP has also relied upon another judgment of the Hon'ble Apex Court reported in (2016) 3 SCC (Cri) 299 (Chittaranjan Shetty Vs State by CBI, Bengaluru) wherein it is held as:
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22. On a perusal of the abovementioned judgments, it can be concluded that in order to prove the offence under Section 13(1)(d)(ii) of the Act, it must be established that a public servant has abused his position in order to obtain for himself or for any other person, any valuable thing or pecuniary advantage, and that, in this context, the "abuse" of position must involve a dishonest intention.
23. In the present case, it is not disputed that the appellant is a public servant. As regards the element of "obtaining a valuable thing or pecuniary advantage" for himself or another person, the courts below have made concurrent findings that the appellant, by permitting Accused 2 to divert the overdraft facilities towards payment to DW 1, has obtained a pecuniary advantage for DW 1 and we concur with the same.
24. The crucial fact that needs to be determined is whether the appellant, with dishonest intention, abused his position in order to obtain for DW 1, the said pecuniary advantage. It is our considered opinion that, in the present case, there is sufficient evidence on record to prove that the appellant was acting with a dishonest intention. The terms and conditions of the loan granted to the appellant categorically state that the overdraft facilities could be utilised only for the purpose of meeting working capital requirements and for furnishing performance guarantee in favour of the said Corporation and the same could not have been utilised for payment of the debt owed by Accused 2 to DW 1. The courts below have relied on the testimony of PW 18 to conclude that the appellant knowingly and wilfully disregarded 124 Spl.C.C.No.59 of 2018 the objections of PW 18 and permitted Accused 2 to divert funds from the overdraft facility towards payment to DW 1 and that this fact is proof of dishonest intention on the part of the appellant. We concur with the courts below in this regard. The testimony of PW 18 has been corroborated by the testimony of the Sub-Manager of Karnataka Bank (PW 9) who has stated that a cheque of Rs 3,60,000 was deposited in the current account of DW 1 as well as that of the Senior Manager, Corporation Bank, Car Street, Mangalore (PW 10).
76. In the said Judgment the Hon'ble Apex Court has clearly held that the abuse of powers by a public servant was in furtherance of obtaining either for himself or any for some another person any valuable under or pecuniary advantage and it has been stressed upon by the Hon'ble Apex Court that the abuse of powers must involve dishonest intention. Since the entire evidence which is placed before the court would clearly indicate that the accused had intentionally and deliberately made entries in the cash register extract is proved by the prosecution, the provision under Sec. 13 of prevention of corruption act stands proved. The act of the accused squarely comes with in the purview of misconduct as enumerated in the said provision. Further in another judgment of the Hon'ble Apex Court 125 Spl.C.C.No.59 of 2018 reported in (2009) 8 SCC 1 (Sudhir Shantilal Mehta v. CBI,) wherein it has been held as:
60. It therefore stands established from the above that UCO Bank could only have discounted the bills of exchange out of bona fide commercial transactions as had been provided under the RBI circulars which were statutorily binding on UCO Bank.
62. In order that the Bank could discount a bill of exchange, it was necessary that it related to a bona fide or genuine commercial transaction and it was because of this requirement that the accused persons had gone to the extent of preparing false documents to give an appearance that the discounting related to bona fide commercial transaction.
64. An offence of criminal breach of trust by a public servant attracts the penal provision of Section 409 of the Penal Code. Indisputably, the Bank entrusted its funds to its officers; they had the dominion over the said property; they were holding the said money in trust which is a comprehensive expression, inter alia, to denote a relationship of master and servant. The act of criminal breach of trust per se may involve a civil wrong but a breach of trust with an ingredient of mens rea would give rise to a criminal prosecution as well.
67. It is one thing to say that any circular letter issued by Reserve Bank of India being not within the public domain would not be law but it would be another thing to say that it did not contain any direction of law so as to attract the liability in terms of Section 405 of the Penal Code.
Lawful directions were issued by Reserve Bank of India. The circular letter was meant for all 126 Spl.C.C.No.59 of 2018 scheduled banks. The authorities and/or officers running the affairs of the scheduled banks therefore were aware thereof. If it is binding on the banks, it would be binding on the officers.
68. Any act of omission or commission on the part of any authority of the Bank would amount to acting in violation of any direction of law. A direction of law need not be a law made by Parliament or a legislature; it may be made by an authority having the power therefor; the law could be a subordinate legislation, a notification or even a custom.
69. Indisputably, the higher authorities of the Bank were entrusted with or otherwise had dominion over the properties of the Bank. They were dealing with public funds. Indisputably again they were required to apply the same in terms of the circulars issued by the Bank as also Reserve Bank of India. It has been accepted at the Bar that failure on the part of the officers of the Bank to abide by the directives issued under the circulars would result in civil action. Subjecting the bank to a civil liability would thus attract one of the ingredients of criminal breach of trust. There cannot be, however, any doubt whatsoever that a mere error of judgment would not attract the penal provision contained in Section 409 of the Penal Code. The materials brought on record by the parties must be judged keeping in view the aforesaid legal position.
70. The primary question is whether the property of the Bank was dishonestly used or disposed of in violation of any direction of law prescribing the mode therefor. The mode of disposal of the public money is prescribed in terms of the UCO Bank Manual and the circulars issued by Reserve Bank of India. It was, however, necessary for the prosecution to prove that the same was done with requisite mens rea.
127
Spl.C.C.No.59 of 2018 Illegality
89. Section 43 defines the terms "Illegal" or "Legally bound to do" in the following terms:
"43. 'Illegal', 'Legally bound to do'.--The word 'illegal' is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be 'legally bound to do' whatever it is illegal in him to omit."
It carries a very wide meaning. If any ground for civil action can be founded on the basis of any act of omission or commission on the part of a person, his act may be held to be illegal or it may be held that he was legally bound to do an act which he had omitted to do. If a person is guilty of breach of a departmental order, he may be held to be guilty as he was legally bound to act in terms thereof.
90. It does not matter whether the violation was in relation to the circular issued by Reserve Bank of India or whether it was in violation of the guidelines issued by the Bank itself. The question as to whether the directions are statutory in character and binding in law may not depend upon the nature of the powers to be exercised by Reserve Bank of India. Discounting and rediscounting of bills of exchange is an integral part of banking transactions. Purchase and sale of securities is also a part of the banking transactions as would appear from Section 6(1)(a) of the Banking Regulation Act.
95. The Manual, therefore, prescribes exercise of greater caution in the cases where the drawer and drawee of the bill are 128 Spl.C.C.No.59 of 2018 identical or connected persons. It provides for the meeting of safeguards by way of making an enquiry as regards the creditworthiness, a satisfaction of which was required to be arrived at by the Manager. Thereabout, having regard to the credit rating, business integrity and past dealing, the Manual provides that those borrowers who do not satisfy the said tests laid down would not be eligible for any loan. Evidently, all these procedural requirements necessary for safeguarding the interests of the Bank were thrown to the winds.
77. The concept of illegality and also the misconduct wherein the accused does not obey the circulars has been dealt by the Hon'ble Apex Court which would aptly applicable to the case on hand. Even in the case on hand several circulars were issue by the Government of India during the period of demonetization and said circulars were marked as exhibits and also there is not much dispute with respect to the same. A strict directions were issued with respect to exchange of SBN with legal tender notes and also it was brought out during the course of evidence of the bank manager who was examined as P.W.37 Muchiram and also P.W. 38 Jaishankar and P.W.39 Mahadevkumar who was the IO with respect to the issuance of circulars. As per the said circulars a specific capping was introduced by the RBI with 129 Spl.C.C.No.59 of 2018 respect to exchange of SBN and initially it was for Rs.4,000/- and subsequently it was increased to Rs.4,500/- and later on to Rs.2,000/-. The act of accused wherein it has been proved by the prosecution that he had made entries in the cash register extract in the OUT column indicating the denominations which were contrary to the pay-in-slip furnished by the customers would clearly indicate that the accused had exchanged the demonetized SBN for legal tender currency notes and the same would amount to derogation of the circulars issued by RBI and also Government of India. Under this circumstances the act of the accused would definitely amount to a misconduct and it can not be considered as a mere error in judgment. It is noticed from the records that during the entire period from 08.11.2016 to 23.11.2016 he had continuously changed the denominations and exchanged SBN contrary to the circular of RBI. As such the act of the accused is clearly established and the document which has been produced by the prosecution which is a report of P.W. 3 D.Santesh that the act of the accused had caused a loss of Rs.2,18,46,300/- stands proved. To sum up it would be appropriate to note at this juncture that the prosecution has established beyond reasonable doubt that the accused was the public servant during the 130 Spl.C.C.No.59 of 2018 demonetization period as he was discharging his duty at State Bank of Mysore Periyapatna Branch as Head Cashier and also he was entrusted with the duty of the accounts and also the cash transaction. It is noticed from the records that during the period of demonetization the pay-in-slips filed by the customers indicating of the denominations was not tallying with the cash register extract maintained by the Head Cashier with respect to the demonetized notes and it has been proved that they were exchanged by the Head Cashier with legal tender notes and even though the ultimate tally in the register remains the same, the accused in reality had exchanged legal tender notes with SBN for extraneous considerations which was not a mere error in judgment but a deliberate act which would amount to misconduct coming under the purview of Sec.13 of the Prevention of Corruption Act.
78. Before parting it would be relevant to note that the act of the accused in committing economic offence by violating the procedures laid down by the legislature as well as the Reserver Bank of India can not be brushed aside as a minor mis conduct. The respect for law is of cardinal importance which has been laid down by 131 Spl.C.C.No.59 of 2018 the Hon'ble Apex Court in the judgment reported in (1993) 4 SCC 216 (Ramachandra Ganpat Shinde Vs. State of Maharashtra) wherein it has been held as:
13. Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the people is the source and succour to invigorate justice intertwined with the efficacy of law. The principle of justice is ingrained in our conscience and though ours is a nascent democracy which has now taken deep roots in our ethos of adjudication -- be it judicial, quasi-judicial or administrative as hallmark, the faith of the people in the efficacy of judicial process would be disillusioned if the parties are permitted to abuse its process and allowed to go scot free. It is but the primary duty and highest responsibility of the court to correct such orders at the earliest and restore the confidence of the litigant public, in the purity of the fountain of justice; remove stains on the efficacy of judicial adjudication and respect for rule of law, lest people would lose faith in the courts and take recourse to extra-constitutional remedies which is a death-knell to the rule of law.
Last but not the least the manner in which the honesty and probity in public life is important has been enumerated by the Hon'ble High Court of Delhi in the judgment reported in 1997 SCC OnLine Del 382 wherein it is held as:
132
Spl.C.C.No.59 of 2018 "Let honesty be as the breath of thy soul; then shalt though reach the point of happiness, and independence shall be thy shield and buckler, thy helmet and crown ; then shall thy soul walk upright, nor stoop to the silken wretch because he hath riches, nor pocket an abuse because the hand which offers it wears a ring set with diamonds." - Frannklin.
"The whole of Government consists in the art of being honest." - Thomas Jefferson, Works VI, 186.--
79. Point No.5 : In view of my foregoing reasonings and conclusions arrived at by me, during the discussions of Point No.1 to 4, I proceed to pass the following:-
ORDER Acting U/s. 235(2) of Cr.P.C., the Accused B.Dinesh is hereby convicted for the offences punishable under Sec.409, 477-A of IPC and Sec.13(2) r/w 13 (1)(c) and (d) of the Prevention of Corruption Act, 1988.
Bail bonds and surety bonds stand
cancelled.
(Dictated partly to the Judgment Writer orally, transcribed and typed by her, corrected and dictated to the typist on the computer directly then pronounced by me in the open court this the 30 th day of March 2022) (Santhosh Gajanan Bhat) XLVI Addl. City Civil & Sessions Judge & Spl. Judge for CBI Cases, Bengaluru.133
Spl.C.C.No.59 of 2018 ORDER REGARDING SENTENCE In the instant case the accused has been convicted for the offences punishable u/S 409, 477-A of IPC and u/S 13(2) r/w Sec.13(1) (c) & (d) of Prevention of Corruption Act 1988. The accused is secured before the court. Learned prosecutor is also present.
2. It is the submission of the Learned Public Prosecutor that the offences against the accused for the aforesaid offences are proved beyond reasonable doubt. It has been submitted by her that the court has to consider the conduct of the accused and also the gravity of the offence committed by him. It is her submission that though the offences alleged are not punishable with extreme penalty of death, the same has to be construed seriously since it is economic offence which bleeds the economy of the country. Further she has pointed out that during the period of demonetization of currency note of Rs.1,000/- and Rs.500/- the Government had intended to bring in some legislation which would be helpful to robust the economy of the country. Further she has argued that as per the provision of Sec.409 of IPC the entrustment of property which is nothing but the domain over the cash is proved by the prosecution and also the conduct of the accused in tampering with the pay-in-slips and also by adopting SWAP method he had exchanged the demonetized currency notes and had caused loss to the Government exchequer to an extent of Rs.2,18,46,300/- which 134 Spl.C.C.No.59 of 2018 can not be considered as a misnomer. Further the Economic Offences are to be considered as class apart and the same requires to be considered stringently and no lenient view can be taken. Hence she has sought for convicting the accused by imposing maximum imprisonment as contemplated under the above said provisions and also by imposing suitable fine so as to make good the loss caused to the Government exchequer. Lastly she has argued that the sentence which is to be imposed by the court should be proportionate to the offence committed by the accused and should act as deterrent to the society. Hence she has sought for awarding maximum sentence and also suitable fine on the accused person.
3. The learned counsel for accused has vehemently argued that the offences which is alleged against the accused are not grave in nature. It is his submission that the amount which is alleged to have been caused as loss to the Government exchequer is only an imaginary one and also he has tried to differentiate the act of the accused u/S 13(1) (c) and also the provision u/S 7 of Prevention of Corruption Act. It is his submission that as per the case of prosecution no admitted loss was caused to the bank and also there are no materials to indicate that the accused had got himself enriched due to the said act. It is also been submitted by him that there are no materials to indicate the alleged enrichment of accused and under the circumstances a minimum fine may be imposed.135
Spl.C.C.No.59 of 2018 Further he has also brought to the notice of the court about the various ailments being suffered by the accused due to his advanced age and he has to take care of his wife who is also suffering from various ailments. Accordingly he has sought to take lenient view in this regard and has prayed to award minimum sentence as permissible under law.
4. The accused who is before the court is also afforded with an opportunity to submit on the quantum of sentence. The accused has submitted that he is aged about 61 years and had taken compulsory retirement from his job in the year 2019 and has to take care of his aged wife and they have no children to take care of them. It is his statement that he had put in an unblemished service of 29 years in the bank and had his own reputation in the society. Further he has also submitted that he does not own any property and he has underwent knee surgery due to which he is unable to sit properly. He is also suffering from arthritides and various other old age ailments. Hence he has sought for taking a lenient view.
5. Heard the parties and the point that requires to be considered is what would be the appropriate sentence that can be imposed upon the accused. Time and again it has been reiterated by the Hon'ble Apex court that in matters of awarding sentence the court should be cautious and has to consider all the relevant factors in order to arrive at a just conclusion. It is 136 Spl.C.C.No.59 of 2018 also the cardinal principles of law that the nature and the gravity of the crime but not the criminal, which are germane for consideration to impose suitable sentence. Apart from that the Hon'ble Apex court has held that at the time of passing of the sentences the court has to make an exercise by precisely pointing out the aggravating and mitigating factors. When the said aspect is considered in the wake of the facts and circumstances of the case the chart of following aggravating factors can be drawn which are :
a. The accused was entrusted with domain over public property when he was discharging the public duty.
b. The accused had breached the trust which was imposed upon him and had caused dent to the public at large in particular with respect to the economic activity of the country. c. The act of the accused was a deliberate and well planned since he had intentionally manipulated the entries in the cash Register Extract of the bank knowing fully well that he can take advantage of the nuance of law.
d. The act of the accused is a degradation of conduct and amounts to breach of trust with respect to public money.137
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6. The mitigating factors which can be enumerated are as follows:
a. The accused is not a habitual offender.
b. The accused does not have any
antecedent of criminal offence.
c. The accused is aged person suffering
from various ailments.
d. The accused is having deep roots in
the society and having good reputation in the society.
e. The accused is not having a definite source of income nor the materials does not indicate of he being enriched by causing loss to the Government exchequer.
7. The court has considered the aggravating and mitigating factors and on consideration of the same it is to be kept in mind that the act of the accused is to be termed as white collared offence which bleeds the economy of the nation. Further the maxim 'Nullum Crimen Sine Lege' which means the principle of legality in the rule for construing criminal statutes is to be infavor of citizens and also the approach should be towards the social welfare. The important aspect of socio economic offences is to be emphasized with the gravity of the harm caused to the society and also the nature of offences themselves. Even though the gravity of offence cannot be easily 138 Spl.C.C.No.59 of 2018 deciphered the same requires to be considered in a manner which would indicate the mode of execution in secrecy by the shrewd and dexterous persons with sophisticated means. Time and again it has been held by the Hon'ble Apex Court that the cry of the victim has to be considered. In the instant case it is the society at large which suffers and bleeds due to the act of the accused. The court has also relied upon the authority of the Hon'ble Apex Court reported in (2012) 12 SCC 384 (State of Maharashtra through CBI Vs. Balakrishna Dattatreya Kumbar) wherein it has been held as:
17. The aforesaid order is, therefore, certainly not sustainable in law if examined in the light of the aforementioned judgments of this Court. Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could not be undone as the respondent employee, if ultimately succeeds, could claim all the consequential benefits. The submission made on behalf of the respondent, that this Court should not interfere with the impugned order [ Criminal Application No. 157 of 2008 in Criminal Appeal No. 1243 of 2007, decided on 8-4-2008 (Bom)] at such a belated stage, has no merit for the reason that this Court, vide order dated 9-7-2009 [State of Maharashtra v. Balakrishna Dattatrya Kumbhar, SLP (Cri) CRLMP No. 9416 of 2009, order dated 9-7-2009 (SC) wherein it was directed:"Delay condoned.139
Spl.C.C.No.59 of 2018 Issue notice. In the meantime, there will be stay of the impugned order."] has already stayed the operation of the said impugned order [ Criminal Application No. 157 of 2008 in Criminal Appeal No. 1243 of 2007, decided on 8-4-2008 (Bom)] .
8. When the said principles are applied to the case on hand the fact which emerges is the accused had committed an offence u/S 409 of IPC by breaching the trust imposed upon him. During the period of demonetization the legislature had thought it fit to with draw the currency notes of the denomination of Rs.1,000 and Rs.500 so has to boost the economic activity of the country. During the said period the accused who was working as the Head Cashier of the then State Bank of Mysore Periyapatna branch had acted contrary to the trust reposed on him and had deliberately and also with a deceitful manner had caused loss to the Government exchequer. Though it is argued that in reality no loss has been caused to the bank, but at the same time the act committed by the accused has to be considered in the wake of his act of flaunting the circulars of RBI and Government of India. The said act can not be considered as an isolated one and also it should be seriously viewed from the point of view of the loss caused to the Government exchequer. At that point of time the Government had given an option to the citizenry to exchange the demonetized currency notes. It was the intention of the legislature to bring in certain order in the economic activity of the nation and the accused was also discharging his duty as 140 Spl.C.C.No.59 of 2018 public servant at that point of time. Under this circumstances when the act of accused in disobeying the circulars can not be considered as a minor misnomer. It is also to be appreciated that due to the act of the accused currency notes which were demonetized were exchanged to an extent of Rs.2,18,46,300/-. The said act cannot be considered as a minor act and even the court has to take a serious note of the offences committed by him. It is also relevant to note that he had falsified the accounts of the customers and in reality though the amount remitted by the customer is depicted into their accounts the harsh reality is the accused had taken advantage of the faith reposed in him. Under this circumstances the act of misconduct which is proved against the accused is to be considered seriously. At the same time though it has been argued by the learned counsel for the accused that there are no materials to indicate that the accused had got any benefit in the said exchange of demonitized notes, the court has to remind the accused that his act of misconduct and also the criminal breach of trust is proved. Apart from that the provisions u/S 409 of IPC would clearly cast a duty on the court that when a person entrusted with dominion over a property he has to take care of the same in a proper and manner which is in accordance of law. Further the provision clearly indicates that he shall be sentenced with imprisonment of life or with imprisonment of either description which may extent to 10 years and shall also be liable to fine. The word which has been used with respect to imposing of fine is "shall". 141
Spl.C.C.No.59 of 2018 Which clearly indicates that there is no scope for showing leniency and the court shall impose appropriate fine to the act committed by the accused persons. By considering the same it is crystal clear that the court can not take a lenient view and also the loss caused to the public exchequer due to the mis conduct as contemplated u/S 13(1)(c)(d) & and also u/S 13(2) of Prevention of Corruption Act 1988 is to be viewed seriously. Accordingly it would be appropriate to note that suitable fine is required to be imposed so as to make good the loss caused to the Government exchequer. No doubt the learned counsel for accused has argued that in reality the said amount which is exchanged could not have completely considered as the one which requires to be forfeited, the fact remains that the loss which is accounted to an extent of Rs.2,18,46,300/- requires to be recovered. Obviously the act of the accused in showing scant respect to the law of the land and causing loss to the exchequer has to be come down heavily. Under the circumstances in my humble opinion that no leniency can be shown in matters pertaining to economic offences. In fact as held in various dictums of the Hon'ble Apex Court and also by the Hon'ble High Court of Karnataka the economic offences are committed against the society at large. Hence I proceed to pass the following order:
ORDER The accused B.Dinesh is convicted for the offences punishable u/S 409 of IPC and 142 Spl.C.C.No.59 of 2018 he is sentenced to undergo a Rigorous Imprisonment for a period of 7 years and imposed with a fine of Rs. 2,19,00,000/- and in default of payment of fine he shall undergo a simple imprisonment for a period of 2 years.
The accused B.Dinesh is convicted for the offences punishable u/S 477-A of IPC and he is sentenced to undergo Rigorous Imprisonment for a period of 3 years and a fine of Rs.10,000/- and in default of payment of fine he shall under go a simple imprisonment for a period of 6 months.
The accused B.Dinesh is hereby convicted for the offences punishable u/S 13(2) and 13(1)(c)&(d) under Prevention of Corruption Act 1988 and he is sentenced to undergo Rigorous Imprisonment for a period of 7 years and a fine of Rs.25,000/- and in default of payment of fine he shall undergo a further simple imprisonment for a period of 1 year.
The sentences ordered shall run concurrently and the accused shall be
entitled for set off as contemplated u/s. 428 of Cr.P.C. for the period of detention already 143 Spl.C.C.No.59 of 2018 undergone if any as under trial prisoner in the above case.
In the event of deposit of fine amount same shall be forfeited to State.
Office is hereby directed to furnish copy of the Judgment to the accused forthwith. (Dictated to the Typist on computer, corrected and then pronounced by me in the open court this the 31 st day of March 2022) ( Santhosh Gajanan Bhat ) XLVI Addl. City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru City.
ANNEXURE List of witnesses examined for the Complainant :
PW.1 : K.Srinivas
PW.2 : Srinivas Pai
PW.3 : D. Shantesh
PW.4 : Ansar Shariff
PW.5 : Ningiah
PW.6 : Nagananda P.S.
PW.7 : Arun Sagar A.R.
PW.8 : K.M. Borelinge Gowda
PW.9 : N.Vinod Kumar
PW.10: K.S. Mahesh
PW.11: S.Nataraj
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PW.12: A.R. Hemraj
PW.13: Kadir Velu
PW.14: Latha P.R.
PW.15: Swamy C.N.
PW.16: Mallamma
PW.17 : Pampathi
PW.18 : K.Vijaya Karthik
PW.19 : Gnanamurthy
PW.20 : P.T. Nagaraju
PW.21 : N. Lakshmidevi
PW.22 : Manoj Kumar
PW.23 : N.P. Ganesh
PW.24 : Sharukh Shariff
PW.25 : P.S. Madhusudhan
PW.26 : Latha R
PW.27 : P.M.Natesh
PW.28 : B.K. Suresh
PW.29 : Akash C Hegde
PW.30 : Harish M.H.
PW.31 : Sandeep Kumar Giri
PW.32 : Shweta Yadav
PW.33 : Varun Kumar
PW.34 : Shruthi S
PW.35 : Kurmapu Ashok
PW.36 : Rajesh Kumar M.
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PW.37 : Muchi Ramu
PW.38 : J.A. Jayashankar
PW.39 : Mahadeva Kumar K.P.
PW.40 : S. Venugopal
List of documents exhibited on behalf of the Complainant :
Ex.P.1 : Complaint given to CBI dtd. 28.02.2017 P.1(a) : Signature of CW.1 (PW.1) Ex.P.2 : Office note letter dtd. 21.12.2016 P.2 (a) : Order portion in Ex.P.2 P.2 (b) : Signature of CW.1 (PW.1) P.2 (c) : Signature of PW.2 in Ex.P.2 Ex.P.3 : letter dated 03.12.2016 from Manager, SBM, Periapatna Branch P.3 (a) Signature of PW.37 - CW.5 Ex.P.4 : Copy of letter dtd. 03.12.2016 P.4 (a) to P.4 (d)): Two notes and two initials of witness (PW.2) Ex.P.5 : One letter dtd. 14.12.2016 from Manager, SBM, Periyapatna branch.
Ex.P.6 : Letter dtd. 09.12.2016, received from SBM, Manager.
P.6 (a) : Signature of PW.2 (CW.2)
Ex.P.7 : Preliminary enquiry report along with
annexure dtd. 21.12.2016.
(Ex.P.7 includes three sheets).
P.7 (a): Signature of the PW.3 in Ex.P.7
Ex.P.8 : The letter dtd. 17.12.2016 sent by Branch
Manager, SBM Branch, Periyapatna.
146
Spl.C.C.No.59 of 2018
P.8 (a) : The enclosed letter of B.Dinesh
P.8 (b) : Signature of PW.7 in Ex.P.8 (a)
P.8 (c) : Signature of PW.37 - CW.5
Ex.P.9 : Copy of the intimated letter dtd.21.12.2016
P.9 (a) : Initials of the witness PW.2
Ex.P.10: Office copy of letter dtd. 22.12.2016
P.10 (a)
& (b) : Signatures.
Ex.P.11: C/c of the circular Issued by RBI
dtd. 08.11.2016 (10 sheets)
Ex.P.12 : General circular No.213/16-17 dtd. 9.11.2016
issued by SBM, Head office to all branches of SBM (consists 13 sheets) Ex.P.13 : Another copy of Circular dtd. 14.11.2016 (consists of 4 sheets) Ex.P.14 : Another copy of general Circular dtd.30.12.2016 issued by SBM, Head office.
Ex.P.15 : Copy of the Investigation Report dtd.28.12.2016(subject to production of original) P.15 (a) : Office copy of Report with annexures dtd. 28.12.16 (Seven sheets) P.15 (b) : Signature of PW.3 P.15 (c) : Signature of S.K. Bellubhi Ex.P.16 : Computer extract c/c of the cash report dtd.10.11.16 bearing Teller No.6170943 related to accused along with certificate u/s.2(A) of the Bankers Book Evidence Act and certificate u/s. 65(B) of Indian Evidence Act, 1972. (consists of five sheets).147
Spl.C.C.No.59 of 2018 Ex.P.17 : The c/c of computer extracted cash denomination report dtd. 10.11.2016 along with certificate u/s.2(A) of B/B Evidence Act (consists of seven sheets).
Ex.P.18 : Cash denomination report dtd.11.11.16 with certificate B/B Evidence Act and u/s. 65(B) of Indian Evidence Act. (15 sheets) Ex.P.19 : The cash report (10 sheets) Ex.P.20 : C/c of A/c opening Form of Ningaiah (7 sheets) P.20 (a) & (b) : Signatures of PW.5 in Ex.P.20 Ex.P.21 : The challan dtd. 11.11.16 submitted by Ningaiah P.21 (a) Signature of PW.5 in Ex.P.21 Ex.P.22 : The computer A/c extract of Ningaiah along with certificate u/s.2(A) of BB Evidence Act and 65(B) of Indian Evidence Act.
Ex.P.23 : C/c of Specimen signature of K.M. Boralinge Gowda Ex.P.24 : Challan dtd.11.11.16 of K.M.Boralinge Gowda.
P.24 (a) Signature of PW.8 in Ex.P.24 Ex.P.25 : The computer generated A/c extract pertaining to K.M. Boralinge Gowda with Certificate u/s. 2(A) B/B Act and u/s.65(B) of Indian Evidence Act (02 sheets) Ex.P.26 : C/c of A/c opening form belongs to R.Latha (consists 708 sheets) 148 Spl.C.C.No.59 of 2018 Ex.P.27 : The challan dtd.11.11.16 submitted by R.Latha.
Ex.P.28 : Computer generated account extract of R.Latha with certificate u/s.2(A) of B/B Act and u/s. 65(B) of Indian Evidence Act.
Ex.P.29 : The copy of the suspension order dtd.21.12.16.
P.29 (a) : Signature of PW.2 P.29 (b) : Signature with endorsement of accused.
Ex.P.30 : The copy of Notice dtd. 20.01.2017.
Ex.P.31 : The covering letter dtd. 20.01.17.
Ex.P.32 : Letter written by Manager dtd.24.01.17.
Ex.P.33 : Copy of explanation submitted by accused dtd.02.02.2017.
Ex.P.34 : The covering letter dtd. 06.02.2017.
Ex.P.35 : Tricolumn statement along with copy of Reply (Three sheets).
P.35(a) : Signature of witness in Ex.P.35
Ex.P.36 : Covering letter.
Ex.P.37 : Service record of accused (10 sheets)
P.37 (a) letter dtd. 21.09.2017 issued by PW.17
to PSI/CBI/BLR.
P.37 (b) Suspended order issued to accused
dtd. 21.12.16.
Ex.P.38 : C/c of the a/c opening form belongs to
Smt. N.Lakmidevi A/c No.54023156360.149
Spl.C.C.No.59 of 2018 Ex.P.39 : The challan dtd. 11.11.16 submitted by N.Lakshmidevi.
P.39 (a) Signature of witness on Ex.P.39.
Ex.P.40 : Computer generated a/c extract along with certificate u/s.2(A) of Banker Book Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.41 : Copy of Specimen signature of P.T.Nagaraju P.41 (a) Signature of witness on screen shot P.41 (b) Signature of witness on screen shot Ex.P.42 : Challan dtd. 11.11.16 submitted by P.T.Nagaraju.
P.42 (a) Signature of PW.23 on Ex.P.42 Ex.P.43 : Computer generated a/c extract pertaining to P.T.Nagaraj along with certificate u/s.2(A) of Banker Book Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.44 : The report of teller No.6170943 of accused B.Dinesh dtd. 12.11.16 along with certificate u/s.2(A) of Banker Book Act and u/s. 65(B) of Indian Evidence Act (7 sheets).
Ex.P.45 : C/c of Cash denomination report dtd.12.11.16 along with certificate u/s.2(A) of Banker Book Act and u/s. 65(B) of Indian Evidence Act (11 sheets).
Ex.P.46 : Teller report with certificate u/s.2(A) of Banker Book Evidence Act and u/s. 65(B) of Indian Evidence Act (7 sheets).150
Spl.C.C.No.59 of 2018 Ex.P.47 : Cash denomination report dtd. 13.11.16 (14 sheets) Ex.P.48 : Teller No.6170943 of accused report dtd. 15.11.16 along with certificate u/s.2(A) of Indian Banker Book Evidence Act and u/s. 65(B) of Evidence Act (8 sheets).
Ex.P.49 : Cash denomination Report dtd. 15.11.16 (consists of 18 sheets) Ex.P.50 : Teller report with certificate u/s.2(A) of Banker Book Evidence Act and u/s. 65(B) of Indian Evidence Act (8 sheets).
Ex.P.51 : C/c of cash denomination Report dtd.16.11.16 along with certificate u/s.2(A) of Banker Book Act and u/s. 65(B) of Indian Evidence Act (16 sheets).
Ex.P.52 : C/c of A/c opening form (08 sheets) P.52 (a) Signature of PW.16 in Ex.P.52.
Ex.P.53 : The challan submitted by Mallamma. P.53 (a) Signature of PW.16 in Ex.P.53.
Ex.P.54 : Computer generated a/c extract of Mallamma with certificate u/s.2(A) of Banker Book Evidence Act and u/s. 65(B) of Indian Evidence Act (04 sheets).
P.54 (a) A/c entry dtd. 16.11.16 in Ex.P.54.
Ex.P.55 : C/c of A/c opening form of Mysore District Government Offices and other employees Co-operative Society (11 sheets).151
Spl.C.C.No.59 of 2018 P.55 (a) (b) & (c) Specimen signatures of Ravi, Manja and Lakshmi.S in Ex.P.55.
Ex.P.56 : Challan dtd. 16.11.16.
P.56 (a) Signature of PW.14 in Ex.P.56.
Ex.P.57 : Computer generated a/c extract
pertaining to Mysore District
Government Offices along with
certificate u/s.2(A) of Banker Book Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.58 : C/c of A/c opening Form of Narayan C.N. (consists 8 sheets).
P.58 (a)
to (c) Specimen signatures of
Sri. C.N.Narayana
Ex.P.59 : The challan dtd. 16.11.16 submitted by
C.N.Narayan.
P.59 (a) Signature of PW.10 in Ex.P.59
Ex.P.60 : Computer generated a/c extract of
C.N.Narayan along with certificate u/s.2(A) of Banker Book Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.61 : Challan dtd. 16.11.16 P.61 (a) : Signature of PW.38 Ex.P.62 : Computer generated a/c extract
pertaining to SBI, Periyapatna Branch along with certificate u/s.2(A) of Banker Book Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.63 : Copy of Specimen signature form with 152 Spl.C.C.No.59 of 2018 resolution copy of PACCS Ltd. (2 sheets) Ex.P.64 : Challan dtd. 16.11.16 by PACCS Ltd., Ex.P.65 : Computer generated a/c extract pertaining to PACCS Ltd., along with certificate u/s.2(A) of Banker Book Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.66 : C/c of A/c opening Form of SBI (10 sheets) Periyapatna branch.
Ex.P.67 : The report of teller No.6170943 of accused B.Dinesh along with certificate u/s.2(A) of Banker Book Evidence Act and u/s. 65(B) of Indian Evidence Act (6 sheets).
Ex.P.68 : C/c of cash denomination report dtd.18.11.16 along with Certificate u/s.2(A) of Banker Book Act and u/s. 65(B) of Indian Evidence Act (15 sheets).
Ex.P.69 : Challan dtd. 18.11.16. Ex.P.70 : Computer generated A/c extract pertaining to ATM with Certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (3 sheets).
Ex.P.71: The report of teller No.6170943 of accused B.Dinesh along with Certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (5 sheets).153
Spl.C.C.No.59 of 2018 Ex.P.72 : C/c of cash denomination report dtd.23.11.16 along with Certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (15 sheets).
Ex.P.73 : The withdrawal Form dtd. 23.11.16 submitted by A.R. Hemaraju.
P.73 (a) Signature of PW.12 in Ex.P.73 Ex.P.74 : Computer generated A/c extract pertaining to A.R. Hemaraju along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.75 : The challan dtd. 23.11.16 submitted by Heritage Motors.
P.75 (a) Signature of PW.19 on Ex.P.75. Ex.P.76 : Computer generated A/c extract along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.77 : The C/c of A/c opening Form pertaining to Heritage Motors A/c No.64057596000 (17 sheets) Ex.P.78 : Cheque No.286611 submitted by one P.S. Prapulla dtd. 23.11.16.
Ex.P.79 : Computer generated A/c extract pertaining to P.S. Prapulla along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (5 sheets).
Ex.P.80 : C/c of the A/c opening form pertaining to 154 Spl.C.C.No.59 of 2018 pertaining to P.S. Prapulla bearing A/c No.54023165228.
Ex.P.81 : Cash receipt dtd. 13.11.16 submitted by Shobha Harish.
Ex.P.82 : C/c of A/c extract belongs to Shobha Harish with certificates u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets). Ex.P.83 : C/c of A/c opening form with enclosures of Shobha Harish ( 12 sheets).
Ex.P.84 : Cash Receipt dtd. 14.11.16 submitted by M/s. Esha Sampada Gas Agency.
Ex.P.85 : C/c of A/c extract belongs to M/s. Esha Sampada Gas Agency along with certificates u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.86 : C/c of specimen signature of M/s. Esha Sampada Gas Agency.
P.86 (a)
(b) & (c) Specimen signatures of wife of PW.6 in Ex.P.86.
Ex.P.87 : Cash Denomination report dtd. 14.11.16 with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (17 sheets).
Ex.P.88 : Cash receipt of M/s. SMS Liquor Centre pertaining to A/c No.64019486764 dtd. 14.11.16.
Ex.P.89 : C/c of A/c extract belongs to M/s.SMS Liquor Center along with u/s.2(A) of 155 Spl.C.C.No.59 of 2018 Banker Book/Evidence Act and u/s.
65(B) of Indian Evidence Act (4 sheets). Ex.P.90 : A/c opening form on behalf of M/s.SMS Liquor Center ( 8 sheets).
Ex.P.91 : Cash receipt dtd. 14.11.16 submitted by M/s. Mysore Sales (MSIL) P.91 (a) Signature of PW.15 in Ex.P.91 Ex.P.92 : C/c of A/c extract belongs to MSIL along with Certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.93 : Cash receipt dtd.16.11.16 of M.C. Potharaju.
Ex.P.94 : C/c of A/c Extract along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.95 : C/c of A/c opening form with enclosures submitted by Potharaju ( 8 sheets).
P.95 (a) to (c) Specimen signatures of Sri. M.K.Potharaju Ex.P.96 : Cash Receipt dtd. 16.11.16 submitted by M/s. Eshwara Enterprises.
Ex.P.97 : C/c of A/c extract belongs to M/s.
Eshwara Enterprises along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act. (4 sheets) Ex.P.98 : C/c of A/c opening form with enclosures submitted by Eshwara Enterprises.
156
Spl.C.C.No.59 of 2018 (10 sheets) P.98 (a) Signature of PW.9 in Ex.P.98 Ex.P.99 : Cash receipts dtd. 16.11.16 of U.B. Enterprises.
Ex.P.100 : C/c of A/c Extract belongs to U.B. Enterprises along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.101 : C/c of A/c opening form with enclosures submitted by U.B.Enterprises (6 sheets).
P.101 (a)(b) & (c) Specimen signatures of PW.13 in Ex.P.101 Ex.P.102 : Cash receipt dtd. 16.11.16 by MSIL P.102 (a) Signature of PW.15 in Ex.P.102. Ex.P.103 : C/c of A/c extract belongs to M/s. MSIL with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.104 : Cash receipt dtd. 16.11.16 submitted by M/s. Heritage Motors.
P.104 (a) Signature of witness on Ex.P.104. Ex.P.105 : C/c of A/c extract along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act.
(4 sheets).
Ex.P.106 : Cash receipt of C.N. Narayan dtd.17.11.16.
P.106 (a) Signature of PW.10 in Ex.P.106 157 Spl.C.C.No.59 of 2018 Ex.P.107 : C/c of A/c extract A/c belongs to C.N.Narayan along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act.
(4 sheets).
Ex.P.108 : Cash denomination report dtd. 17.11.16 along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (14 sheets).
Ex.P.109 : Cash receipt dtd. 18.11.16. P.109(a) Signature of Mohankumar in Ex.P.109 Ex.P.110 : C/c of A/c extract belongs to M/s. Esha Sampada Gas agency along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.111 : Cash receipt dtd. 18.11.16 of C.N.Narayan.
P.111(a) Signature of PW.10 in Ex.P.111 Ex.P.112 : C/c of A/c extract belongs to C.N.Narayan along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act.
(4 sheets).
Ex.P.113 : Cash receipt dtd. 18.11.16 of Ansar Shariff.
Ex.P.114 : C/c A/c extract of certificate u/s.2(A) of Banker Book/Evidence Act and u/s.
65(B) of Indian Evidence Act (4 sheets). P.114 (a) relevant portion of entry in Ex.P.114 158 Spl.C.C.No.59 of 2018 Ex.P.115 : C/c of A/c opening form by Ansar Shariff.
P.115 (a) to (c) Three signatures of PW.4 in Ex.P.115 Ex.P.116 : Cash receipt of M/s. Esha Sampada gas Agency dtd. 18.11.16.
P.116 (a) Signature of PW.6 in Ex.P.116 Ex.P.117 : C/c of A/c extract with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.118 : Cash receipt dtd.18.11.16 by Potharaju M.K. Ex.P.119 : C/c of A/c extract belongs to M.K.Potharaju along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.120 : Cash receipt dtd. 19.11.2016. Ex.P.121 : C/c of A/c extract along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (4 sheets).
Ex.P.122 : Cash denomination Report dtd. 19.11.16 along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (17 sheets).
Ex.P.123 : Cash receipt dtd. 19.11.16 of M.K.Potharaju.
159
Spl.C.C.No.59 of 2018 Ex.P.124 : C/c of A/c extract along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (04 sheets).
Ex.P.125 : Cash receipt dtd. 19.11.16 submitted by M/s. Ganesh Distributor.
Ex.P.126 : C/c of A/c extract along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (04 sheets).
Ex.P.127 : C/c of A/c opening form with KYC form submitted by M/s. Ganesh Distributor (03 sheets).
Ex.P.128 : Cash Receipt dtd. 23.11.16 submitted by B.K. Suresh.
Ex.P.129 : C/c of A/c extract belongs to B.K. Suresh along with certificate u/s.2(A) of Banker Book/Evidence Act and u/s.
65(B) of Indian Evidence Act.
(04 sheets).
Ex.P.130 : C/c of A/c opening form with enclosures submitted by B.K. Suresh (06 sheets).
Ex.P.131 : CC of Cash Vault Register P.131 (a) to (l) Signatures of PW.7 in Ex.P.131 Ex.P.132 : Cash denomination report dtd. 21.11.16 along with Certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 65(B) of Indian Evidence Act (certified copy) (14 sheets).
160
Spl.C.C.No.59 of 2018 Ex.P.133 : C/c of cash denomination report dtd.22.11.16 along with certificate (14 sheets) Ex.P.134 : C/c of A/c opening form of PW.22 A.Sunil Kumar and KYC documents.
Ex.P.135 : Statement of Accused with 65(B) Evidence Act and 2(A) BB Evidence Act of PW.22.
Ex.P.136 : A/c opening form of Rakesh Dallal. Ex.P.137 : Statement of A/c of Rakesh Dallal with certificate 65-B and 2 (A) of B/B Evidence Act.
Ex.P.138 : Statement A/c of Dimple Jain with certificate 65 (B) and 2 (A) of B/B Evidence Act.
Ex.P.139 : Statement of A/c of Sha Natulal Arjunlal Jain with certificate.
Ex.P.140 : Format of specimen signature of Smt. Vandana Kumari.
Ex.P.141 : Statement of A/c of one M.S. Vandana Kumari with certificate 65-B and 2 (A). Ex.P.142 : A/c statement of Mr. Sunil Kumar with 65(B) and 2 (A) Evidence Act certificate. Ex.P.143 : Statement of A/c of Miss. A.Rekha with certificate u/s. 65(B) and 2 (A).
Ex.P.144 : Specimen signature of format of Smt. A. Rekha Kumar.
161
Spl.C.C.No.59 of 2018 Ex.P.145 : Statement of A/c of Ms. Rekha Kumar with Certificate 65 (B) & 2 (A) of Evidence Act.
Ex.P.146 : Statement of A/c of Ms. Sangeetha A with 65 (B) and 2(A) certificate.
Ex.P.147 : Statement of A/c of Ms. Sundar Bai with certificate 65(B) and 2 (A) Act.
Ex.P.148 : A/c opening form of Sha Natulal Arjunlal Jain.
Ex.P.149 : Statement of A/c of Sri.Arjunlal Jain with certificate u/s.65(B) and 2 (A) Act.
Ex.P.150 : Statement of A/c of one Ms. Anitha with certificate 65 (B) and 2 (A) Act.
Ex.P.151 : Statement of A/c of Mr. Manoj Kumar A with certificate u/s.2(A) of Banker Book/Evidence Act and u/s. 6 5(B) of Indian Evidence Act (07 pages). Ex.P.152 : Statement of A/c of M/s. Arjun Lal Jain and Sons with certificate u/s.2(A) of Banker Book/Evidence Act and u/s.
65(B) of Indian Evidence Act.
Ex.P.153 : Application for opening SB Account of New Jyothi Jewellers Prop. Manoj Kumar.
Ex.P.154 : Account opening form of one Sri. Manoj Kumar of Nakoda Jewellers with KYC documents.
P.154 (a) Signature of witness on attested copy A/c opening form in Ex.P.154.
162
Spl.C.C.No.59 of 2018 Ex.P.155 : Statement of A/c of Mr. Manoj Kumar Jain A. for the period from 01.04.16 to 31.12.2016 with certificate u/s.2(A) of Banker Book/Evidence Act and u/s.
65(B) of Indian Evidence Act.
P.155 (a) Signature of PW.29 on statement of account Ex.P.155.
Ex.P.156 : Covering letter Dtd. 24.10.17 for handing over Ex.P.154 and 155.
P.156 (a) Signature of PW.29 Ex.P.157 : Covering letter (kept with P.153) P.157 (a) Signatures.
Ex.P.158 : Receipt Memo ( 4 sheets) P.158 (a) Signature of PW.37 Ex.P.159 : Copy of Attendance Register (4 pages) Ex.P.160 : Office order book P.160 (a) Office order dtd. 24.11.16 (page No.111) P.160 (b) Office order dtd. 19.12.16.
Ex.P.161 : Covering letter dtd. 18.08.2017 Ex.P.162 : Cash maintenance/remittance received and sent Register.
Ex.P.163 : Sanction orders - dtd. 26.12.17 P.163 (a) Signature of PW.39.
Ex.P.164 : FIR P.164(a) Signature of Roopa M. 163 Spl.C.C.No.59 of 2018 List of witnesses examined for the Accused :
- Nil -
List of documents exhibited on behalf of the Accused :
- Nil -
(Santhosh Gajanan Bhat) XLVI Addl. City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru City.
164 Spl.C.C.No.59 of 2018