Patna High Court
Rakesh Raman Dubey vs State Of Bihar Thru. Cbi on 14 August, 2012
Author: Mandhata Singh
Bench: Mandhata Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.490 of 2007
(Against the Judgment and Order dated 31.03.2007 passed by Shri Radhe Shyam
Prasad, Special Judge, C.B.I. South Bihar, Patna in R.C. No. 02(A)/1990 (Special
Case No. 07/90, 7(A)/90.), R.C.No.4(A)/90 (Special Case No.09/90 and 9(A)/90),
R.C. No.5(A)/90 (Special Case No.10/90 and 10(A)/90), R.C. No.3(A)/90 (Special
Case No.08/90 and 8(A)/90) and R.C. No.1(A)/90 (Special Case No.6/90, 6(A)/90
and 6(B)/90).
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Rakesh Raman Dubey s/o Rewati Raman Dubey, R/O House No.G/3,-35, Rail
Bihar Colony, Rapti Nagar, P.S.-Sahpur, Distt.-Gorakhpur.
.... .... Appellant/s
Versus
State Of Bihar Thru. C.B.I.
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 491 of 2007
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Rakesh Raman Dubey
.... .... Appellant/s
Versus
State Of Bihar Thru. C.B.I.
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 492 of 2007
===========================================================
Rakesh Raman Dubey
.... .... Appellant/s
Versus
State Of Bihar Thru. C.B.I.
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 500 of 2007
===========================================================
Rakesh Raman Dubey
.... .... Appellant/s
Versus
State Of Bihar Thru.C.B.I.
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 501 of 2007
===========================================================
Rakesh Raman Dubey
.... .... Appellant/s
Versus
State Of Bihar Thru.C.B.I.
.... .... Respondent/s
2
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Appearance :
(In CR. APP (SJ) No. 490 of 2007)
For the Appellant/s : Mr. Sheo Shankar Prasad
Mr. Vidya Sagar
Mr. Brajesh Kumar Pandey-Advs.
For the Respondent/s : Mr. Bipin Kumar Sinha-SCCBI
(In CR. APP (SJ) No. 491 of 2007)
For the Appellant/s : Mr. Sheo Shankar Prasad
Mr. Vidya Sagar
Mr. Brajesh Kumar Pandey
For the Respondent/s : Mr. Bipin Kumar Sinha-SCCBI
(In CR. APP (SJ) No. 492 of 2007)
For the Appellant/s : Mr. Sheo Shankar Prasad
Mr. Vidya Sagar
For the Respondent/s : Mr. Bipin Kumar Sinha-SCCBI
(In CR. APP (SJ) No. 500 of 2007)
For the Appellant/s : Mr. Sheo Shankar Prasad
Mr. Vidya Sagar
For the Respondent/s : Mr. Bipin Kumar Sinha-SCCBI
(In CR. APP (SJ) No. 501 of 2007)
For the Appellant/s : Mr. Sheo Shankar Prasad
Mr. Vidya Sagar
For the Respondent/s : Mr. Bipin Kumar Sinha-SCCBI
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CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH
CAV JUDGMENT
Date: 14.08.2012
Mandhata Singh, J.1. All the above five appeals arise from five cases, but by a common judgment, hence are taken together for final judgment.
2. Prosecution case, in brief, is that blank books/ forms of Demand Drafts/ bank drafts received in the Branch of Dariapur Gola of State Bank of India, Patna from Central Stationery Department of State Bank of India at Patliputra Colony, Patna. Requisition was from the then Branch Manager Ramayan Sharma on 20.4.1989, number of Demand Draft forms was serial no.OL-A-48 634001 to 635000. For appellant, it is said that he joined Dariapur Gola Branch on 13.4.1989 as Clerk-cum-cashier. His work/ duty besides other was to prepare bank draft/ Demand Draft. The received Demand Draft forms were kept in cash room in separate almirah after taking into account in the Branch. In 2 3 the first week of July, 1989, Ramayan Sharma made over the charge to S. K. Pandey and he became the custodian of the documents including bank drafts. Sometime in July, 1989, S. K. Pandey, Manager of the Branch issued a Book containing 25 Demand Draft leaves to accused R.R. Dubey, but by mistake two books were made over to the accused, who was in charge of Draft Issue Section at that time. On or about 26.9.1989, S. K. Pandey came to know that one book containing 25 leaves of Demand Drafts was missing and accordingly, he reported the matter to his superior as well as Officer-in-charge, Pirbahore Police Station, Patna.
3. All these 25 Demand Draft leaves received in five different branches of S.B.I. namely 1. Secretariat Branch, 2. Boring Road Patna Branch, 3. Patna city Branch, 4. Muzaffarpur Branch and 5. Patna Main Branch. The Branch Managers of the aforesaid branches reported the matter to the C.B.I./ S.P.E./ Patna Branch, Patna.
4. R.C. No.1 (A)/1990 (Special Case No.06 of 1990) registered on basis of complaint dated 01.11.1989 (Exhibit-8) on report of Pranav Kumar Chakravarty, Branch Manager of S.B.I. Patna Secretariat Branch, which was concerning seven bank drafts and total amount involved was Rs.5,33,517.30 shown issued by Ranchi Branch of S.B.I. paid during August and September, 1989. Drafts were presented by Yugal Kishore Prasad Singh, Kumar Pradeep and Abhay Kumar. In the case three charge sheets bearing nos.06/1990, 07/1990 and 08/1990 are filed.
5. R.C. No.2(A)/ 1990 (Special Case No.07 of 1990) registered on basis of complaint dated 30.10.1989( Exhibit-20/2) of B. B. N. Sinha, Branch Manager, S.B.I. Boring Road, Patna concerning five drafts involving total sum of Rs.4,17,480.57 shown issued by Doranda Branch of S.B.I. paid by Boring Road 3 4 Branch on different dates during the September, 1989. Drafts were presented by account holder Om Pharmaceuticals. In the case two charge sheets bearing nos.09/1990 and 10/1990 are filed.
6. R. C. No.3(A)/ 1990 (Special Case No.08 of 1990) registered on basis of complaint dated 01.11.1989 (Exhibit-20/1) of I. R. Sah, Branch Manager, S.B.I. Patna city Branch concerning five drafts involving total amount Rs.40,8,295.65 shown issued by Dhanbad Branch of S.B.I. paid in the month of August and September, 1989. Drafts were presented by Kumar Pradeep and Abhay Kumar. In the case two charge sheets bearing nos.11/1990 and 12/1990 are filed.
7. R. C. No.4 (A)/1990 (Special Case No.09 of 1990) registered basing of complaint dated 02.11.1989 (Exhibit-20/3) of Ram Das Handey, Branch Manager, S.B.I., Muzaffarpur Branch, money involved is said Rs.2, 84,915 in the month of September, 1989, number of drafts were four shown issued by Dhanbad Branch of S.B.I. Drafts were presented by the account holder Abhay Kumar. In the case two charge sheets bearing nos.13/1990 and 14/1990 are filed.
8. R. C. No.5 (A)/1990 (Special Case No.10 of 1990) registered basing complaint dated 06.11.1989 of M. N. Choudhary, Branch Manager of S.B.I. Patna Main Branch. Number of drafts is four and affected amount is Rs.2,86,728 shown issued by S.B.I. Jamshedpur Branch. Drafts were presented by Abhay Kumar and Kumar Pradeep. In the case two charge sheets bearing nos.15/1990 and 16/1990 are filed.
9. For all the drafts, it is said that same were not issued by the branches shown in the drafts.
10. In course of investigation, it appeared that issuance of two bank Demand Draft books was suppressed by the accused-appellant to defraud 4 5 and cheat the S.B.I. Further using his official position, he got opened different accounts in Dariapur Gola Branch of S.B.I. in fictitious name of Yugal Kishore Prasad Singh, Kumar Pradeep and Abhay Kumar on various dates; he is introducer of Yugal Kishore Prasad Singh. Another account was opened in name of Abhay Kumar at Central Co-operative Bank, Muradpur, Patna and Central Co- operative Bank Muzaffarpur and many more in various names in other banks. Another account was opened in name of Abhay Kumar in the State Bank of India, Main Branch, Patna and account opened in name of Vijay Kumar in Punjab National Bank, Muradpur, Patna. Further, it appeared that all the accounts were being operated by the accused-appellant himself. Some of the accounts were introduced by the person on request of the accused person even without production of the account holder. It further appeared that all the bank drafts were shown issued in name of V. Nath. Drafts were credited/ encashed in different above accounts and attempt was also made on behalf of the accused-appellant to get the money transferred of his own name and in name of his family members. In all, Rs.19, 30,936.52 is shown cheated by the accused-appellant.
11. For the first time, the matter about missing of one of Demand Draft books containing 25 leaves was informed by S. K. Pandey, Manager of S.B.I., Dariapur Gola Branch (PW-9). He was also suspected by the C.B.I. officials to have his hand in getting the book for its misuse for defrauding and cheating the bank, but due to appearance of no material, he was exonerated by the C.B.I. No doubt, he was custodian of the book. Material appeared in course of investigation is taken for accusation basing which charge sheets submitted which ended in conviction after trial validity of which has been questioned by filing the appeal.
12. Leaves of draft book was handed over to this accused- 5 6 appellant is the statement of PW-9. Some of the facts are admitted to the parties. They are as follows:-
(i) Draft leaves book is found missing from the S.B.I. of Dariapur Gola Road Branch, Patna.
(ii) Appellant, PW-8 and PW-9 were posted in the above branch of S.B.I.
(iii) All the leaves have been used showing issued by different branches of State Bank of India.
(iv) Issuer of the drafts is shown one V. Nath.
(v) All the drafts are encashed in different accounts recently opened after missing of drafts book.
13. None of the account-holders could be identified as existing person. Under the above admitted circumstance, the most important evidence was the signature/ handwriting of V. Nath over drafts encashed/ credited to different accounts and that has been done in the case and taken into consideration by the trial Court also. Relevant signatures and handwritings are examined by PW-12 G. K. Semwall, Assistant Government Examiner of the Question Documents Head, Kolkata for C.B.I. / prosecution and DW-1 Kesho Prasad on behalf of the defence. Specimen signatures and handwritings are taken of V. Nath and this accused-appellant. It is also made clear that at the relevant time V. Nath was not posted at State Bank of India, Dariapur Gola Road Branch, Patna rather was posted at Bettiah Branch. This much of the fact is also one of the admitted facts. S-1 to S-77 are specimen signatures/ handwritings of accused-appellant, S-78 to S-88 are specimen signatures/ handwritings of Vishwanath Prasad (PW-7). Q-3, Q-6, Q-9, Q-12, Q-15, Q-18, Q-21, Q-24, Q-27, Q-30, Q-33, Q-36, Q-39, Q-42, Q-45, Q-48, Q-51, Q-54, Q-60, Q-63, Q-66, Q-69 and Q-72 are questioned 6 7 signatures/ handwritings over disputed drafts fully mentioned in Paragraph-5 of the report Exhibit-22.
14. Opinion of the expert PW-12 is that specimen signatures/ handwritings of accused-appellant tally with Q marked signatures/ handwritings found over drafts in question and the same do not tally with specimen signatures/ handwritings of Vishwa Nath Prasad (V. Nath). According to DW-1, PW-7 Vishwa Nath Prasad has signed all the drafts in question as his specimen signatures/ writings tally with signatures over drafts marked in Q series and that do not tally with signature of accused-appellant. Statement of PW-8 and PW-9 has been shown in corroboration of report (Exhibit-22) submitted on behalf of PW-12. No such support has been found in favour of DW-1 and his report (Exhibit-A). This much corroboration is replied to the submission of the defence that conviction cannot be recorded solely on basis of expert opinion in view of their Lordships' opinion given in a case reported in A.I.R. 1977 (SC) 1091.
15. I think no further corroboration is needed though existing, what is existing, may be divided in two part admitted and not admitted. Of admitted I have discussed that accused-appellant was posted at Dariapur Gola Branch of S.B.I. from where draft leaves book was found missing and Vishwa Nath Prasad (V. Nath) was not posted there. Of not admitted part, opinion of expert on behalf of C.B.I./ prosecution appeared when the real culprit was being searched having no interest in involvement of the accused-appellant or others including V. Nath or PW-9, while appellant's opinion was sought by an expert only to help him. Moreover, both the reports were compared by the trial Court as well as by me and that of PW-12 (Exhibit-22) appears genuine only.
16. On behalf of prosecution, it is submitted that V. Nath only was chosen for showing issuer as his signature was available in Dariapur Gola 7 8 Road Branch of S.B.I. Patna. Above and other facts/ circumstances are not discussed by the trial Court, not necessary also, but are existing. That continues with passbooks are in fictitious name, some of them have been either introduced on behalf of accused-appellant or on his instigation. Address of most of the fictitious persons is given as Govind Mitra Road or Mahendru Flat no.5. Nominee of some of the accounts is Nisha Ranjani or Nisha Rajni wife of the accused- appellant.
17. On this point, some of the materials available on record are taken for example: - One of the disputed accounts opened in name of Abhay Kumar (Exhibit-1) is introduced by PW-1 Ram Avatar Pathak, who in his statement states that he introduced Abhay Kumar Dubey as was asked by Ashwini Kumar Dubey one of accused-appellant's brothers. Another such account of Abhay Kumar (Exhibit-31) is introduced by this accused-appellant himself. In exhibit-1 Nisha Ranjani is the nominee. Address of the account-holder is shown Flat No.5, Mahendru. Another account is exhibit-28/2 in which address of account-holder is given Govind Mitra Road, Patna, House no.5-E, Mahendru, Patna. In exhibit-14/10 account of Kumar Pradeep, address is Govind Mitra Road, thus Govind Mitra Road and Mahendru are inter-connected. PW-14 is a witness to state that he remained present at the time of search of this accused-appellant's quarter at Mahendru. This witness has been cross-examined also which goes to show that his residing at Mohalla- Mahendru is not disputed on his (appellant's) behalf. So, it is clear that there is no doubt about appellant's having connection and interest in accounts opened in fictitious person.
18. After above discussion, I find no mistake committed by the trial Court in convicting the accused-appellant for the offence under Sections 420, 467, 468 of the Indian Penal Code and also under Section 13(1) (d) of the 8 9 Prevention of Corruption Act. Sentence to which accused-appellant is punished is 3 years for the offence under Section 420 of the Indian Penal Code, 5 years for the offence under Section 467 of the Indian Penal Code, 3 years for the offence under Section 468 and 3 years for the offence under Section 467/ 471 of the Indian Penal Code. No separate sentence is awarded for the offence under Prevention of Corruption Act. In special Case no.06/ 1990, he is further sentenced for 3 years. Apart from it, he is imposed a fine of Rs.50,000/- and in default simple imprisonment of one year.
19. On the point of sentence, it is submitted that accused- appellant has already been terminated from the service that is sufficient towards his guilt. So, liberal view should be taken here. No doubt, accused-appellant is terminated from the service, but his act is heinous. However, the sentence under Section 467 of the Indian Penal Code is minimized to 3 years. All the sentences are to run concurrently. He is exonerated from the fine also. So, no further relief can be given.
20. In the result, appeal is dismissed and judgment and order of sentence are affirmed with modification on the point of sentence. Appellant is directed to surrender in the trial Court to serve the rest of the sentence if appears after set off the period already in custody during trial. Trial Court is directed to take appropriate step for appellant's appearance.
(Mandhata Singh, J) Patna High Court, Patna Dated-14th August,2012 Vikash Verma A.F.R./ 9