Madras High Court
C. Umapathy vs State Represented Through on 22 March, 2018
Author: P.N. Prakash
Bench: P.N. Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.03.2018
RESERVED ON: 27.02.2018
DELIVERED ON: 22.03.2018
CORAM
THE HON'BLE MR. JUSTICE P.N. PRAKASH
Crl.A. (MD) No.177 of 2006
C. Umapathy Appellant
vs.
State represented through
the Inspector of Police
SPE/CBI/ACB, Chennai
(R.C. MA 12002 A 0051) Respondent
Criminal Appeal preferred under Section 374(2) of the Code of Criminal
Procedure seeking to call for the records relating to the judgment dated
23.02.2006 passed in C.C. No.3 of 2004 on the file of the Principal Special
Judge for CBI Cases, Madurai and set aside the same.
!For appellant Mr. Gopalakrishna Lakshmana Raju
Sr. Counsel
for Mr. R. Venkateswaran
^For respondent Mr. N. Nagendran
Special Public Prosecutor for C.B.I.
:JUDGMENT
This Criminal Appeal has been preferred seeking to set aside the judgment dated 23.02.2006 passed in C.C. No.3 of 2004 on the file of the Principal Special Court for CBI Cases, Madurai.
2 The C.B.I. registered a suo motu F.I.R. in Cr. R.C.MA 12002 A 0051 on 11.10.2002 for the offences under Sections 420, 467, 468, 477-A IPC and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for brevity ?the PC Act?) against Umapathy, Deputy Manager, Central Bank of India, for manipulation of records and misappropriation of cash beginning from 09.08.2002, from the accounts of several customers and after completing the investigation, have filed four final reports, viz., C.C. Nos.1 of 2004, 2 of 2004, 3 of 2004 and 4 of 2004 before the Special Court for C.B.I. Cases at Madurai.
3 In this appeal, we are concerned with C.C. No.3 of 2004 in which the appellant has been convicted and sentenced on 23.02.2006 as follows:
Provisions of law Sentence Section 409 IPC Section 420 IPC Section 467 IPC Section 468 IPC Section 13(2) r/w 13(1)(c) of the PC Act Section 13(2) r/w 13(1)(d) of the PC Act Rigorous imprisonment for two years + fine of Rs.1,000/-, in default to undergo simple imprisonment for three months, for each of the charges. Section 465 r/w 471 IPC Section 477-A IPC Rigorous imprisonment for two years for each of the charges.
The aforesaid sentences of imprisonment have been ordered to run concurrently along with the sentence of imprisonment in C.C. No.1 of 2004.
4 To prove their case, the prosecution have examined 11 witnesses and marked 105 exhibits. When the appellant was questioned about the incriminating circumstances appearing against him under Section 313 Cr.P.C., he denied the same, but, explained that six internal audits were held and the auditors had not found any malpractice; he was forced to give a statement by Mohan, Deputy Regional Manager and Kaliraj, Branch Manager and was forced to sign the said papers; they also got his signature and made him pay the entire amount on the promise that he would not be held responsible for the malpractice and the amount involved in the case was paid by him with interest. No witness was examined on his behalf nor any document marked. However, the Trial Court has rejected his plea and has convicted and sentenced him, as stated above and hence, the present appeal.
5 Heard Mr. Gopalakrishna Lakshmana Raju, learned Senior Counsel, representing Mr. R. Venkateswaran, learned counsel for the appellant and Mr. N. Nagendran, learned Special Public Prosecutor for C.B.I. 6 The allegation in this case relates to misappropriation from the accounts of M. Vellathai, V. Samudhra Pandian, R. Subbarayan, S.Perumal Reddiar, R. Venkatasamy, G. Karuppasamy, S. Thangamani, S. Thirumal, Subbiah Thevar, S. Subramanian, S. Ganesan, C. Jawahar and M. Murugan.
7 Arunachalam (P.W.1) who was working as Assistant Manager in Kalugumalai Branch between 08.07.2002 and 07.05.2004, has stated that the appellant was the Assistant Manager of Kalugumalai Branch of Central Bank of India until he was relieved by him (P.W.1) and even after he was relieved, he was attending office for about 4 days from 08.05.2002.
8 Arunachalam (P.W.1) has further explained the entire procedure relating to deposit and withdrawal of money by the customers of the bank. He has stated that if a customer wants to deposit money, he has to fill up a challan and give the said challan to the Clerk in the counter, who will enter the same in the scroll book for the day; the scroll number will be written on the challan and the customer should take the challan to the Cashier's counter and submit the same with the cash; the Cashier will receive the cash and give the counterfoil of the challan with the seal of the bank; if a customer wants to withdraw money, he should fill up the withdrawal slip/cheque and submit the same to the Clerk in the counter, who would check the ledger account of the customer and if there is amount in the customer's account, an entry will be made in the ledger account and token will be given; the signature in the withdrawal slip/cheque will be compared with the specimen signature of the customer available with the bank; the token book, along with the withdrawal slip/cheque will be sent to the Cashier and the Cashier will check the entries and call the token number for the customer to collect the amount from the cash counter. This is broadly the procedure. He has also stated that the necessary entries for the deposit and withdrawal will be made both in the ledger account of the customer as well in his passbook. He has further deposed that at the end of the day, all debit and credit vouchers will be separated ledgerwise and entries will be made in the saving supplementary register, which will be compared with the ledger sheets and initialled; thus, the total amount of debit and credit transactions of each day will be reflected in the ledger and mentioned in the savings extract book.
9 It is the further evidence of Arunachalam (P.W.1) that as per the bank rules, an officer will have to tally all advances and deposits every month; when he started tallying 31 ledgers with the entries in the savings account ledger on 21.06.2002, it came to light that the ledger balances were higher than the general ledger balance. He has further deposed that the total receipt and payment of the day's transaction will be reflected in the cash book, which is also known as ?day book? and based on the entries in the cash book, the same will be carried forward to the general ledger; the general ledger will give a complete picture of the bank transaction daywise; he started tallying the individual ledger balances and compared them with the saving supplementary register and when he did so, it came to light that out of 29 ledgers, 7 ledgers did not tally; the balance book amount was huge when compared to the exact figure; with the help of the saving supplementary register, he ticked the day-to-day transactions and found that there were some unauthorised entries in that and that these entries were not routed through regular transactions; he noticed a total shortage of Rs.9.25 lakhs in 7 ledgers; he intimated the Branch Manager of this fact in June 2002 itself and the Branch Manager, in turn, informed the Regional Office on the next day itself; Mohan, Regional Manager, came to the branch and went through the records and found that the entries were made by the appellant; along with Ponnusamy (P.W.7), Assistant Manager, he (P.W.1) went through the entire records meticulously and found out instances where amounts were misappropriated; the appellant had made fictitious entries in the bank records. While giving evidence in C.C. No.1 of 2004, Arunachalam (P.W.1) has spoken about the letters dated 26.06.2002, 17.07.2002, 02.08.2002 and 10.08.2002 which were given by the appellant to the Regional Manager, Central Bank of India, under which, the appellant had repaid the defalcated amounts on various dates. Those letters were marked as Exs.P.1 to P.4 in C.C. No.1 of 2004 and they have not been marked as exhibits in this case.
10 Arunachalam (P.W.1) has given evidence about the individual accounts from which amounts have been misappropriated. In this criminal appeal, there are two categories of misappropriation. The first category is failure to deposit the amount entrusted by the customers to the appellant, which the latter misappropriated to himself and the second category is withdrawing money from the account of the customers without their knowledge.
11 Arunachalam was examined as P.W.1 in all the cases, viz., C.C. Nos.1 to 4 of 2004 and his examination began on 03.03.2005. The procedure portion is common in all the four cases. The evidence relating to individual misappropriation alone differs. In all the four cases, he was cross-examined on 24.05.2005. It may be significant to state here that in the cross- examination, the misappropriation of money with regard to individual accounts that has been spoken about by Arunachalam (P.W.1) has not been controverted.
12 In this case, while the first methodology of misappropriation relates to N. Vellathai, V. Samudhra Pandian, R. Subbarayan, S. Perumal Reddiar, R. Venkatasamy, G. Karuppasamy, S. Thangamani, S. Thirumal and Subbiah Thevar, the second methodology of misappropriation relates to S. Subramanian, S. Ganesan, C. Jawahar, S. Subbiah Thevar and Murugan. First methodology, viz., failure to deposit the amount in the account of the customers:
i) N. Vellathai:
13 N. Vellathai is the holder of Savings Bank A/c No.10513 and the
savings account ledger relating to her account and her pass book have been marked as Exs.P.1 and P.2 respectively. On 01.07.2000, there is an entry for Rs.25,000/- in the savings account ledger (Ex.P.1) and pass book (Ex.P.2). However, there is no corresponding entry in the scroll book (Ex.P.3) and savings supplementary register (Ex.P.4). The entries in the savings account ledger (Ex.P.1) and pass book (Ex.P.2) have been marked as Q.70 and Q.91 respectively by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.70 and Q.91 which are the entries in the savings account ledger (Ex.P.1) and pass book (Ex.P.2) respectively, have been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
ii) V. Samudhra Pandian:
14 V. Samudhra Pandian is the holder of Savings Bank A/c No.11115
and the savings account ledger relating to his account has been marked as Ex.P.5. On 25.07.2000, there is an entry for Rs.15,000/- in the savings account ledger (Ex.P.5). However, there is no corresponding entry in the savings supplementary register (Ex.P.6). The entry in the savings account ledger (Ex.P.5) has been marked as Q.80 by the Investigating Officer. N. Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.80 which is the entry in the savings account ledger (Ex.P.5), has been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
iii) R. Subbarayan:
15 R. Subbarayan is the holder of Savings Bank A/c No.7638 and the
savings account ledger relating to his account has been marked as Ex.P.7. On 25.08.2000, there is an entry for Rs.10,000/- in the savings account ledger (Ex.P.7). However, there is no corresponding entry in the scroll register (Ex.P.8) and savings supplementary register (Ex.P.9). The entry in the savings account ledger (Ex.P.7) has been marked as Q.45 by the Investigating Officer. N. Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.45 which is the entry in the savings account ledger (Ex.P.7), has been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
iv) S. Perumal Reddiar:
16 S. Perumal Reddiar is the holder of Savings Bank A/c No.10623 and
the savings account ledger and pass book relating to his account have been marked as Exs.P.10 and P.11 respectively. On 26.08.2000, there is an entry for Rs.5,000/- in the savings account ledger (Ex.P.10) and pass book (Ex.P.11). However, there is no corresponding entry in the scroll register (Ex.P.12) and savings supplementary register (Ex.P.13). The entries in the savings account ledger (Ex.P.10) and pass book (Ex.P.11) have been marked as Q.73 and 93 respectively by the Investigating Officer. N. Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.73 and Q.93 which are the entries in the savings account ledger (Ex.P.10) and pass book (Ex.P.11) have been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
v) Venkatasamy:
17 Venkatasamy is the holder of Savings Bank A/c No.6664 and the
savings account ledger and pass book relating to his account have been marked as Exs.P.14 and P.15 respectively. On 03.10.2000, there is an entry for Rs.15,000/- in the savings account ledger (Ex.P.14) and pass book (Ex.P.15). However, there is no corresponding entry in the scroll register (Ex.P.16) and savings supplementary register (Ex.P.17). The entries in the savings account ledger (Ex.P.14) and pass book (Ex.P.15) have been marked as Q.43 and 84 respectively by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.43 and Q.84 which are the entries in the savings account ledger (Ex.P.14) and pass book (Ex.P.15) respectively have been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
vi) Karuppasamy:
18 Karuppasamy is the holder of Savings Bank A/c No.6737 and the
savings account ledger and pass book relating to his account have been marked as Exs.P.18 and P.19 respectively. On 16.10.2000, there is an entry for Rs.70,000/- in the savings account ledger (Ex.P.18) and pass book (Ex.P.19). However, there is no corresponding entry in the scroll register (Ex.P.20) and savings supplementary register (Ex.P.21). The entries in the savings account ledger (Ex.P.18) and pass book (Ex.P.19) have been marked as Q.44 and 85 respectively by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.44 and Q.85 which are the entries in the savings account ledger (Ex.P.18) and pass book (Ex.P.19) respectively have been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
vii) S. Thangamani:
19 S. Thangamani is the holder of Savings Bank A/c No.10852 and the
savings account ledger relating to her account has been marked as Ex.P.22. On 08.01.2001, there is an entry for Rs.45,000/- in the savings account ledger (Ex.P.22). However, there is no corresponding entry in the scroll register (Ex.P.23) and savings supplementary register (Ex.P.24). The entry in the savings account ledger (Ex.P.22) has been marked as Q.71 by the Investigating Officer. N. Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.71 which is the entry in the savings account ledger (Ex.P.22), has been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
viii) S. Thirumal:
20 S. Thirumal, who was examined as P.W.9, is the holder of Savings Bank A/c No.10979 and the savings account ledger and pass book relating to his account have been marked as Exs.P.25 and P.28 respectively. The prosecution have cited two instances qua S. Thirumal.
20.1 Coming to the first instance, on 11.04.2001, there is an entry for Rs.25,000/- in the savings account ledger (Ex.P.25) and pass book (Ex.P.28). However, there is no corresponding entry in the scroll register (Ex.P.26) and savings supplementary register (Ex.P.27). The entries in the savings account ledger (Ex.P.25) and pass book (Ex.P.28) have been marked as Q.75 and 95 respectively by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.75 and Q.95 which are the entries in the savings account ledger (Ex.P.25) and pass book (Ex.P.28) respectively have been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
20.2 As for the second instance, on 02.05.2001, there is an entry for Rs.6,000/- in the savings account ledger (Ex.P.25) and pass book (Ex.P.28).
However, there is no corresponding entry in the scroll register (Ex.P.29) and savings supplementary register (Ex.P.30). The entry in the pass book (Ex.P.28) has been marked as Q.96 by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.96 which is the entry in the pass book (Ex.P.28) has been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
ix) Subbiah Thevar:
21 Subbiah Thevar is the holder of Savings Bank A/c No.8028. His pass book has been marked as Ex.P.19 in C.C. No.2 of 2004 and the savings account ledger relating to his account has been marked as Ex.P.52. The prosecution have cited eight instances qua Subbiah Thevar.
21.1 On 01.07.2000, there is an entry for Rs.10,000/- in the savings account ledger (Ex.P.52). However, there is no corresponding entry in the scroll register (Ex.P.3) and savings supplementary register (Ex.P.4). The entry in the savings account ledger (Ex.P.52) has been marked as Q.54 by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.54 which is the entry in the savings account ledger (Ex.P.52) has been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
21.2 On 04.11.2000, there is an entry for Rs.20,000/- in the savings account ledger (Ex.P.52). However, there is no corresponding entry in the scroll register (Ex.P.53) and savings supplementary register (Ex.P.54). The entry in the savings account ledger (Ex.P.52) has been marked as Q.55 by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.55 which is the entry in the savings account ledger (Ex.P.52) has been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
21.3 On 05.01.2001, there are two entries for Rs.10,000/- each in the savings account ledger (Ex.P.52). However, there are no corresponding entry in the scroll register (Exs.P.55 and P.23) and savings supplementary register (Exs.P.56 and P.24). The two entries in the savings account ledger (Ex.P.52) have been marked as Q.56 and Q.57 respectively by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.56 and Q.57 which are the entries in the savings account ledger (Ex.P.52) have been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
21.4 On 18.01.2001, there is an entry for Rs.10,000/- in the savings account ledger (Ex.P.52). However, there is no corresponding entry in the scroll register (Ex.P.57) and savings supplementary register (Ex.P.58). The entry in the savings account ledger (Ex.P.52) has been marked as Q.58 by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.58 which is the entry in the savings account ledger (Ex.P.52) has been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
21.5 On 04.04.2001, there is an entry for Rs.5,000/- in the savings account ledger (Ex.P.52). However, there is no corresponding entry in the scroll register (Ex.P.59) and savings supplementary register (Ex.P.60). The entry in the savings account ledger (Ex.P.52) has been marked as Q.59 by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.59 which is the entry in the savings account ledger (Ex.P.52) has been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
21.6 On 28.04.2001, there is an entry for Rs.50,000/- in the savings account ledger (Ex.P.52). However, there is no corresponding entry in the scroll register (Ex.P.61) and savings supplementary register (Ex.P.62). The entry in the savings account ledger (Ex.P.52) has been marked as Q.60 by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.60 which is the entry in the savings account ledger (Ex.P.52) has been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
21.7 On 25.06.2001, there is an entry for Rs.5,000/- in the savings account ledger (Ex.P.52). However, there is no corresponding entry in the scroll register (Ex.P.63) and savings supplementary register (Ex.P.64). The entry in the savings account ledger (Ex.P.52) has been marked as Q.61 by the Investigating Officer. N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.61 which is the entry in the savings account ledger (Ex.P.52) has been made by the person who has given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). Thus, this allegation has been established beyond doubt.
22 Further, there is no pay-in-slip available in the bank records for these transactions. Thus, from the above, it is quite clear that on the dates mentioned therein, these customers have given the amounts directly to the appellant in good faith that he would deposit the said amounts into their accounts. However, the appellant has misappropriated the amounts and has made entries in their passbook and savings account ledger, as if monies have been deposited into their accounts. But, the amounts have not been credited to their accounts since there is no corresponding entry in the day scroll book and savings supplementary register. As far as the customers are concerned, they will not be aware of these, because, the passbook and the savings account ledger will reflect amounts having been deposited. But, in reality, the amounts have not gone into the coffers of the bank in view of the absence of entries in the daily scroll book and savings supplementary register.
23 The learned Senior Counsel appearing for the appellant submitted that except Jawahar (P.W.8) and Thirumal (P.W.9), the others customers have not been examined by the prosecution and therefore, the prosecution have failed to prove the fact that on the said dates, the account holders had given monies to the appellant.
24 It is to be borne in mind that in these cases, the amounts have been repaid by the appellant much before the F.I.R. was registered. The customers were unaware of this fact and it will only further create a panic in their minds if these customers were to be examined and told that there has been misappropriation of monies from their accounts. Moreover, the documentary evidence speaks for itself. In the cross-examination of Arunachalam (P.W.1), the appellant has not refuted this allegation at all. Further, the evidence of N. Ravi (P.W.10) handwriting expert and his report (Ex.P.104) have not been impeached so as to raise a doubt in the mind of this Court, except making a suggestion that he has given a report without proper scientific examination, which suggestion has been denied. N. Ravi (P.W.10), handwriting expert has given exhaustive reasons in his report for the conclusions arrived at by him. Hence, this Court is of the view that the prosecution have proved the allegations beyond doubt.
Second methodology, viz., withdrawal of money from the account of customers without their knowledge:
i) Subramaniam:
25 One Subramaniam is the holder of Savings A/c No.5741. The savings ledger account relating to his account and his pass book have been marked as Exs.P.40 and P.41 respectively. His specimen signature card available with the bank has been marked as Ex.P.39 which the Investigating Officer has marked as A.9. On 02.12.2000, a sum of Rs.25,000/- has been withdrawn from the account by withdrawal slip (Ex.P.37). The writings in the withdrawal slip (Ex.P.37) have been marked as Q.12 and the signature of the drawer on the front side and the rear side of the withdrawal slip (Ex.P.37) have been marked as Q.13 and 14 respectively by the Investigating Officer. However, there is no entry for the withdrawal of Rs.25,000/- either in the savings ledger account (Ex.P.40) or in the pass book (Ex.P.41). N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.12, which are the writings in the withdrawal slip (Ex.P.37) are that of the person who had given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). That apart, the signatures in the withdrawal slip marked as Q.13 and Q.14 do not tally with the admitted signature of Subramaniam in the specimen signature card (Ex.P.39). Further, Arunachalam (P.W.1) has clearly stated that the handwriting in the withdrawal slip (Ex.P.37) is that of the appellant. The token book maintained by the bank also shows that a sum of Rs.25,000/- has been withdrawn from the account of Subramaniam on 02.12.2000. Thus, this allegation has been established beyond doubt.
ii) Ganesan:
26 One Ganesan is the holder of Savings Bank A/c No.8577. The savings ledger account relating to his account and his pass book have been marked as Exs.P.50 and P.51 respectively. His specimen signature card available with the bank has been marked as Ex.P.49. On 07.02.2001, a sum of Rs.25,000/- has been withdrawn from the account by withdrawal slip (Ex.P.47). The signature of the drawer on the front side and the rear side of the withdrawal slip (Ex.P.47) have been marked as Q.34 and Q.35 respectively by the Investigating Officer. However, there is no entry for the withdrawal of Rs.25,000/- either in the savings ledger account (Ex.P.50) or in the pass book (Ex.P.51). N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.34 and Q.35 which are the signatures in the withdrawal slip (Ex.P.47) are that of the person who had given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). That apart, the signatures in the withdrawal slip marked as Q.34 and Q.35 do not tally with the admitted signature of Ganesan, A.15, in the specimen signature card (Ex.P.49). Further, Arunachalam (P.W.1) has clearly stated that the signatures in the withdrawal slip (Ex.P.47) are that of the appellant. The token book maintained by the bank also shows that a sum of Rs.25,000/- has been withdrawn from the account of Ganesan on 07.02.2001. Thus, this allegation has been established beyond doubt.
iii) Jawahar:
27 One Jawahar, examined as P.W.8, is the holder of Savings Bank A/c
No.5898. The savings ledger account relating to his account and his pass book have been marked as Exs.P.31 and P.36 respectively. His specimen signature card available with the bank has been marked as Ex.P.35 and the signature of Jawahar found therein has been marked by the Investigating Officer as A.10. On 19.02.2001, a sum of Rs.30,000/- has been withdrawn from the account by withdrawal slip (Ex.P.32). While the signature of the drawer on the front side and the rear side of the withdrawal slip (Ex.P.32) have been marked as Q.17 and Q.18 respectively by the Investigating Officer, the other writings therein have been marked by the Investigating Officer as Q.16. However, there is no entry for the withdrawal of Rs.30,000/- either in the savings ledger account (Ex.P.31) or in the pass book (Ex.P.36). N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.16, Q.17 and Q.18 which are the writings and signatures in the withdrawal slip (Ex.P.32) are those of the person who had given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). That apart, the signatures in the withdrawal slip marked as Q.17 and Q.18 do not tally with the admitted signature of Jawahar in the specimen signature card (Ex.P.35). Further, Arunachalam (P.W.1) has clearly stated that the signatures and writings in the withdrawal slip (Ex.P.32) are that of the appellant. The token book maintained by the bank also shows that a sum of Rs.30,000/- has been withdrawn from the account of Jawahar on 19.02.2001. Thus, this allegation has been established beyond doubt.
iv) Murugan:
28 One Murugan is the holder of Savings Bank A/c No.10800. The savings ledger account relating to his account and his pass book have been marked as Exs.P.44 and P.46 respectively. His specimen signature card available with the bank has been marked as Ex.P.43 and the signature of Murugan found therein has been marked by the Investigating Officer as A.17. On 08.05.2001, a sum of Rs.19,000/- has been withdrawn from the account by withdrawal slip (Ex.P.42). While the signature of the drawer on the front side and the rear side of the withdrawal slip (Ex.P.42) have been marked as Q.40 and Q.41 respectively by the Investigating Officer, the other writings therein have been marked by the Investigating Officer as Q.39. However, there is no entry for the withdrawal of Rs.19,000/- either in the savings ledger account (Ex.P.44) or in the pass book (Ex.P.46). N.Ravi (P.W.10), handwriting expert, in his evidence as well in his report (Ex.P.104), has opined that Q.39, Q.40 and Q.41 which are the writings and signatures in the withdrawal slip (Ex.P.42) are those of the person who had given the sample handwritings S.1 to S.45 and also his admitted handwritings, A.1 to A.8 (Ex.P.103). That apart, the writings and the signatures in the withdrawal slip (Ex.P.42) marked as Q.39, Q.40 and Q.41 do not tally with the admitted signature of Murugan in the specimen signature card (Ex.P.43). Further, Arunachalam (P.W.1) has clearly stated that the writings and the signatures in the withdrawal slip (Ex.P.42) are those of the appellant. The token book maintained by the bank also shows that a sum of Rs.19,000/- has been withdrawn from the account of Murugan on 08.05.2001. Thus, this allegation has been established beyond doubt.
v Subbiah Thevar:
29 It is the case of the prosecution that on 16.05.2001, a sum of
Rs.50,000/- has been withdrawn from Savings Bank A/c No.8028 of Subbiah Thevar. Since the prosecution had failed to mark the withdrawal slip, the appellant cannot be convicted for this count.
30 The appellant was not in service when cognizance was taken by the Special Court and hence, no sanction under Section 19 of the PC Act was obtained.
31 The learned Senior Counsel appearing for the appellant submitted that the appellant was transferred on 08.05.2002, but, he was not allowed to hand over the charge even after the joining of Arunachalam (P.W.1) as his successor. He contended that the appellant was detained illegally by the bank officials and he was asked to tally the accounts. In support of this contention, the learned Senior Counsel relied upon the following statement made by Arunachalam (P.W.1) in the chief-examination:
?After my joining at Kalugumalai Branch, accused Sri Umapathy was also attending for about four days i.e., from 08.05.2002 out of four days, he was absent for two days and remaining two days, he was attending the bank.?
32 This Court is unable to appreciate the above submission of the learned Senior Counsel, because, Arunachalam (P.W.1) is not a police officer, but, an ordinary Assistant Manager in the bank on par with the appellant. To say that the appellant was illegally detained in the bank by the officials for the purpose of tallying the accounts indeed sounds credulous.
33 The learned Senior Counsel appearing for the appellant attacked the evidence of Ponnusamy (P.W.7), who was directed by the Regional Office to conduct enquiry in the Kalugumalai Branch on coming to know of the issue.
34 Ponnusamy (P.W.7) has conducted inspection of the branch and has submitted a detailed report (Ex.P.92) dated 30.07.2002 setting out the names of the customers from whose accounts, monies have been misappropriated by the appellant by the methodology explained above.
35 By taking this Court through some of the portions from the cross- examination of Ponnusamy (P.W.7), the learned Senior Counsel submitted that Ponnusamy (P.W.7) had failed to see the duty rosters during inspection. He also submitted that Ponnusamy (P.W.7) has admitted that there was inspection by the Audit Department prior to his inspection and those reports have not been submitted by the prosecution. He further contended that Ponnusamy (P.W.7) had no authority to conduct enquiry as he was not the Disciplinary Authority.
36 From a reading of the evidence of Ponnusamy (P.W.7), it is clear that he was deputed by the Regional Office to conduct inspection of Kalugumalai Branch. Further, he did not conduct any enquiry under the Discipline and Appeal Rules of the bank. Rather, he conducted inspection with the help of the then Manager Kaliraj (P.W.6) and other staff members and unearthed the magnitude of the misappropriation. His report (Ex.P.92) is not a substantive piece of evidence to fasten criminal liability against the appellant. He was examined and his report was marked only to show that the bank had taken certain preliminary steps before handing over the matter to the C.B.I. This Court is not placing any reliance either upon the evidence of Ponnusamy (P.W.7) or on his report (Ex.P.92), to fasten criminal liability on the appellant. Criminal liability has been fastened on the appellant based on the documents like passbook, savings account ledger, scroll book and savings supplementary register relating to the customers concerned, in which, the appellant has either made the necessary entries or failed to make the necessary entries, as the case may be.
37 The learned Senior Counsel further contended that the main accused in this case is one Kutralingam who was the collection agent of the bank. He further contended that Vijayaraghavan (P.W.3) has admitted in the cross-examination that he does not have personal knowledge and therefore, the transactions have not been proved. In support of this contention, he placed reliance upon the following statement of Vijayaraghavan (P.W.3) in the cross- examination.
?I have no personal knowledge about time transactions for Mini (CMDS) deposits. We are having collection agent. Kutralingam is the collection agent of our bank. He is a local person. Somewhere in 2002, CBI examined me at their office at Chennai. Till then, no officers of our bank or the police examined me.?
38 One should remember that this is not a broad daylight murder case to have eye witnesses. This is a bank fraud case where the appellant who was the Deputy Manager, had misappropriated money stealthily. One cannot expect an offender to make a public announcement of his intention to steal and call persons to stand as witness. To reiterate, the allegations have been proved through records maintained in the ordinary course of business by the branch and the appellant, being the Deputy Manager, had domain over them. Just because the internal auditors did not find out the fraud, it will not mean that the fraud was not at all committed. The duty roster is not an important piece of record, because, the appellant has not denied that he was not the Deputy Manager of the branch at the relevant point of time. The duty roster may be necessary in a case where among several sub-staff members who are required to perform the same duty, it is alleged that one of them had, during his duty hours, committed a certain misconduct. There is also no basis to hold that Kutralingam was responsible for the defalcation, inasmuch as he was only a collection agent of the bank and it is not the case of the appellant that he was permitted to handle the scroll book, savings supplementary register, etc. 39 The learned Senior Counsel appearing for the appellant contended that the prosecution have failed to prove the entrustment which is a sine qua non for fastening criminal liability under Sections 409 and 420 IPC.
40 Lakshmi Narayana Perumal (P.W.5), who was working as Clerk-cum- Cashier in Kalugumalai Branch under the appellant has, in his evidence, spoken about the withdrawal slips which is in the handwriting of the appellant and that as Cashier, he had made entries on the reverse side of the withdrawal slips and had paid the proceeds directly to the appellant. It is true that proof of entrustment is a pre-requisite for establishing a charge of breach of trust. But, it is not necessary that there should be direct evidence for entrustment. In this case, the passbooks and ledger accounts of the customers show inward entries into their accounts. These inward entries have been made by the appellant. However, there is no corresponding entry of the cash having come into the account of the bank in the scroll books and savings supplementary registers. The appellant, being a Deputy Manager, had domain over the money in the bank and had thereby abused his official position to commit the offence. That is why, he is also prosecuted for the offence under Section 13(1)(d) of the PC Act, along with the IPC offences.
41 The learned Senior Counsel attacked the evidence of Paraman (P.W.4) who was working as Clerk-cum-Teller in the Kalugumalai Branch at the relevant point of time and who was maintaining the savings supplementary registers which have been marked as exhibits in the Court, by contending that he had not properly maintained the records. However, a reading of the cross- examination of Paraman (P.W.4) shows that the appellant has not even suggested to him as if the savings supplementary registers were not properly maintained.
42 The learned Senior Counsel further contended that since the bank officials were not able to tally and reconcile the accounts, they have foisted a case, as if there had been misappropriation of monies in order to fix the accused. This submission of the learned Senior Counsel can hold no water, because, the appellant has not suggested any personal motive or malice to any of the witnesses and only a general suggestion has been put to Ponnusamy (P.W.7), which is as follows:
?It is not true to say that the central office under the pressure of the Management. Union leaders of officers union and employees union. I was asked to give report and accordingly, to save the people intrusted. I submitted the report which are not correct or true. It is not true to say that I am falsely deposing at their instance.?
Thus, according to the appellant, the whole world, including the union, had ganged up against him. The question is ?What for?? Why should the appellant be singled out and blamed for a loss, which, according to the learned Senior Counsel, had occurred only because the officers were not able to reconcile the accounts and not otherwise? There is no plausible explanation forthcoming from the appellant for this and in the opinion of this Court, the appellant is only trying to play the victim card without any avail.
43 The learned Senior Counsel attacked the opinion of N. Ravi (P.W.10), handwriting expert, by submitting that there is no evidence as to who had taken the specimen signature and admitted handwritings of the appellant. He further submitted that the signatures and the admitted handwritings of the appellant as well as the customers should have been taken before a Magistrate or before an independent witness.
44 In this case, the sample signatures of the appellant have been obtained by the Investigating Officer during the course of investigation. It is not necessary to obtain the sample signatures only through the medium of the Magistracy. Only when a person refuses to give his signature, then, a procedure is contemplated under the Identification of Prisoners Act, 1920, to approach the Magistrate for assistance. In the instant case, apart from the specimen signatures and handwritings, the admitted handwritings of the appellant that are available in the bank, viz., A.1 to A.8 have been obtained by the Investigating Officer during the course of investigation for the purpose of comparison with the questioned handwritings. As regards the signatures of the customers, the bank has their specimen signature cards, which have been given to the Investigating Officer for the purpose of investigation. Hence, this Court does not find any infirmity in the procedure adopted by the Investigating Officer in collecting the admitted handwritings and signatures of the appellant for the purpose of sending the same to the handwriting expert for opinion.
45 As regards the sentence, the Trial Court has observed as follows:
?32 In this case, admittedly, the accused has repaid the misappropriated amount and as such, there is no loss to the bank. He has already lost his job. Therefore, I feel that the ends of justice would be met by awarding a lesser sentence.?
This Court is in complete agreement with the above finding given by the Trial Court.
In the ultimate analysis, this Court is of the considered view that this Criminal Appeal merits no consideration and is accordingly dismissed. The bail bond and the sureties executed by the appellant shall stand cancelled. The Trial Court is directed to secure the custody of the appellant and send him to prison to suffer the remaining period of sentence imposed on him.
To 1 The Inspector of Police SPE/CBI/ACB Chennai 2 The Principal Special Judge for CBI Cases Madurai 3 The Special Public Prosecutor for CBI Madurai Bench of Madras High Court Madurai .