Bangalore District Court
The State Of Karnataka vs (1) Giriraju on 30 January, 2017
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 30th day of January 2017
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
Crl. Appeal No. 56/2012
Appellant : The State of Karnataka,
Original-Complainant Represented by it's
The Police Inspector,
Fraud Squad, C.O.D. /
Mahalakshmi Layout Police Station,
Bengaluru.
(By Public Prosecutor)
Vs.
Respondents : (1) Giriraju,
Original-Accused S/o. Late Shivappa,
No's.2 & 3 Aged 51 years,
Ex. Branch Manager,
KSC Apex Bank,
West of Chord Road Branch,
Bengaluru.
R/a. No.209, 5th Cross,
3rd Block, Kalyana Nagar,
Bengaluru - 560 043.
(Accused No.2)
(2) Annegowda,
S/o. Late R.T.Sannappa,
Aged 56 years,
Ex. Manager,
KSC Apex Bank,
West of Chord Road 2nd Stage
Branch,
Bengaluru.
(Accused No.3)
2 Crl. Appeal No.56/2012
R/a. Flat No.166, 13th 'A' Cross,
15th Main, 4th 'T' Block,
Jayanagar,
Bengaluru.
(Proceedings against Respondent No.2/
Original-Accused No.3, are quashed
by the Hon'ble High Court of
Karnataka, Bengaluru, by it's order
16.12.2016 in Crl. Petition No.
3747/2016)
(By Sri Vipin Kumar Jain, Advocate
for Respondent No.1)
* * * *
JUDGMENT
This is an appeal preferred by the appellant/original- complainant against the respondent No.1/original-accused No.2 U/Sec.378(1)(A) of Cr.P.C., against the impugned-judgment passed by the VIII ACMM Court, Bengaluru, in it's CC No.8097/2001, dated 02.08.2011.
2. The original-complainant before the trial court having preferred the instant-appeal against the original-accused-persons, as the appellant and the respondents, respectively, are hereby assigned with their original-ranks before the trial court i.e., the appellant as the complainant and the respondents as the accused- persons in the instant-discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
3. This is a criminal-case at CC No.8097/2001 arising-out of the complaint filed by the complainant against the accused- 3 Crl. Appeal No.56/2012 persons for the offences punishable U/Secs.409, 477(A) & 201 r/w Section 34 of IPC.
4. The epitomized facts projected from the complaint before the trial court run thus:
The accused No.1 being the Cashier and the accused No.2 being the Manager of the Apex Bank, West of Chord Road Branch, Bengaluru, were entrusted with the dominion over the property of the bank in the capacity of public-servant, during the period from 01.01.1988 to 03.06.1988, and thereby committed criminal-breach of trust in respect of the bank-money to the tune of Rs.3,81,000/- in the course of business of the said bank with dishonest and fraudulent-intention and also falsified the accounts maintained in the bank in order to conceal the criminal-breach of trust so committed by them and caused the disappearance of 13 cheques and thereby, the accused-person/s has/have committed the offences punishable U/Secs.409, 477(A) & 201 r/w Section 34 of IPC.
5. Thereafter, the trial court has taken the cognizance of the offences punishable U/Secs.409, 477(A) & 201 r/w Section 34 of IPC.
6. In response to the summons issued against the accused No's.2 & 3, they have put-in their appearance before the trial court through their counsel.
4 Crl. Appeal No.56/2012
7. On moving for bail, the accused No's.2 & 3 have been released on bail.
8. The copies of the complaint and other-documents were supplied to the accused No's.2 & 3.
9. After hearing both the sides, the charges for the offences U/Secs.409, 477(A) & 201 r/w Section 34 of IPC were framed and the same were read-over and explained to the accused No's.2 & 3 in the vernacular best-known to them.
10. The accused No's.2 & 3 have denied the same and pleaded not guilty and further claimed to be tried.
11. In order to prove the guilt against the accused No's.2 & 3, the prosecution has got examined the witnesses, in all, as PWs.1 to 7 and placed the reliance-on the documentations marked at Exs.P.1 to P.53.
12. After the complainant's-evidence was closed, as the incriminating circumstances were arising-out of the evidence of the complainant's-side witnesses, the statements of the accused No's.2 & 3 under the provisions of Section 313 of Cr.P.C. were recorded.
13. The trial court having heard the arguments advanced by both the learned Sr. APP for the complainant as-well-as the learned counsel for the accused No's.2 & 3, basing-on the material available on record from the complainant, the trial court has framed the points for it's consideration as under:
(1) Whether the prosecution proves beyond all reasonable-
doubts that the accused No.1 being the Cashier and the 5 Crl. Appeal No.56/2012 accused No's.2 & 3 being the Managers of the Apex Bank, West of Chord Road Branch, during the period in between 01.01.1988 and 03.06.1988, were entrusted with dominion over the property i.e., the money and the registers of the bank and in the capacity of a public- servant and in the course of business of the bank, committed criminal-misappropriation of an amount of Rs.3,81,000/- and committed criminal-breach of trust and to conceal the same and for the purpose of committing criminal-breach of trust and with dishonest and fraudulent-intention falsified the books of accounts maintained in the bank namely, long-book, current- account-ledger, SB accounts etc., in order to conceal the criminal-breach of trust so committed and with an intention to conceal the criminal-breach of trust, caused disappearance of the 13 cheques and thereby the accused have committed the offences punishable under Sections 409, 477(A) & 201 r/w Section 34 of IPC, 1860?
(2) What order?
14. The trial court has given the findings on the points for consideration raised by it, as under:
Point No.1 .. In the Negative.
Point No.2 .. As per the final-order,
for the following.
-------- and thereby acquitted the accused No's.2 & 3.
15. Being aggrieved by the impugned-judgment passed by the trial court, the appellant/original-complainant before the trial court, has preferred the instant-appeal against the respondent No's.1 & 2/original-accused No's.2 & 3 before the trial court, on the following:
GROUNDS OF APPEAL
(a) The judgment and order under the appeal is illegal, arbitrary and the same is passed without considering 6 Crl. Appeal No.56/2012 and appreciating the facts and circumstances of the case properly.
(b) The impugned-judgment passed by the trial court is contrary to the facts, material and evidence placed on record.
(c) The trial court has lost it's sight to consider the detail-
deposition of PW.1 who is the Auditor and 13 cheques which discloses the misappropriation of bank-amount of Rs.3,81,000/- by drawing the same by the accused- persons.
(d) The trial court has lost it's sight to consider that, the accused No's.2 & 3 have dishonestly and fraudulently falsified all the books of accounts, namely, long-book, day-book-ledger, cash-scroll and etc., with an intention to cheat the bank and also concealed the criminal- breach of trust and caused the disappearance of 13 cheques.
(e) The trial court has lost it's sight to appreciate the settled principles of law to attract the penal-section 409 of IPC against the accused No's.2 & 3.
(f) The trial court has lost it's sight to consider the opinion of PW.7/Handwriting-Expert in connection with the handwritings of the accused No.2 by way of initials and signatures in the books of accounts, and etc.
(g) Though there is sufficient-material in favour of the prosecution against the accused No.2 for having committed the offences punishable U/Secs.409, 477(A) & 201 r/w Section 34 of IPC, the trial court has lost it's sight to appreciate the material available on record in the right perspective and erroneously acquitted the accused-persons.
7 Crl. Appeal No.56/2012Hence, prayed for allowing the instant-appeal.
16. Per contra, the respondent No's.1 & 2/accused No's.2 & 3 have not filed any counter-objections to the instant-appeal-memo.
17. During the lis pendence on the file of the instant-court, the original-accused No.3/respondent No.2 by name, Annegowda, S/o. R.T. Sannappa, having preferred the Crl. Petition No.3747/216 before the Hon'ble High Court of Karnataka, Bengaluru, for quashing the proceedings herein against him, the said criminal- petition came to be allowed on 16.12.2016 and accordingly, the Hon'ble High Court of Karnataka has quashed the instant- proceedings against the accused No.3/respondent No.2, in exercise of the powers conferred-upon it, U/Sec.482 of Cr.P.C., wherefore, the instant-appeal stood continued only against the accused No.2/respondent No.1.
18. I have heard the arguments of the learned counsel for the respondent No.1/accused No.2 as-well-as the learned Public Prosecutor for the appellant/complainant.
19. Basing-on the material available on record and grounds of appeal, the points that arise for my consideration are:
(1) Whether the trial court has justified in negating the Point No.1 raised for it's consideration holding that the prosecution has utterly failed to prove the alleged offences punishable U/Secs.409, 477-A & 201 r/w Section 34 of IPC against the 8 Crl. Appeal No.56/2012 accused No.2 beyond the shadow of all the reasonable-doubts and thereby, acquitted the accused No.2?
(2) Whether the impugned-judgment of the trial court is arbitrary, baseless, capricious, devoid of merits, erroneous, frivolous and perverse without being on the sound-
principles of law and warrants for the interference by the instant-court?
(3) To what order?
20. The findings on the above points are as under:
Point No.1 .. In the Affirmative.
Point No.2 .. In the Negative.
Point No.3 .. As per the final-order, for
the following:
REASONS
21. The status and ranking assigned in the trial court to the complainant and the accused No's.2 & 3 are being adopted and adhered-to in the instant-discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
22. Point No's.1 & 2:- To avoid the reiteration of the material available in hand and to appreciate the evidence adduced before the trial court, in a better-position, I hereby take-up the instant Point No's.1 & 2 together admixingly for discussion.
23. It is the specific-contention of the complainant by way of his complaint that, the accused No.1 being the Cashier and the accused No.2 being the Manager of the Apex Bank, West of Chord Road Branch, Bengaluru, was entrusted with the dominion over 9 Crl. Appeal No.56/2012 the property of the bank in the capacity of public-servant, during the period from 01.01.1988 to 03.06.1988, and thereby committed criminal-breach of trust in respect of the bank-money to the tune of Rs.3,81,000/- in the course of business of the said bank with dishonest and fraudulent-intention and also falsified the accounts maintained in the bank in order to conceal the criminal-breach of trust so committed by them and caused the disappearance of 13 cheques and thereby, the accused-persons have committed the offences punishable U/Secs.409, 477(A) & 201 r/w Section 34 of IPC.
24. To substantiate it's case, the prosecution has got examined the evidence of the witnesses, in all, as PWs.1 to 7, in which CW.2 is examined as PW.1/Mohammed Samiulla, who was the internal-auditor of the said Apex Bank, West of Chord Road Branch, Bengaluru; CW.8 is examined as PW.2/V. Shekar, who is the partial-investigating-officer in respect of he having registered the case; CW.9 is examined as PW.3/B.G. Kavatekar, who is the partial-investigating-officer; CW.1 is examined as PW.4/D.E. Puttaraju, who is the complainant as-well-as the Manager of the said Karnataka State Co-operative Apex Bank, West of Chord Road Branch, Bengaluru; CW.6 is examined as PW.5/S.B. Angadi, who was also the General Manager of the said Apex Bank; the additional-witness is examined as PW.6/E.A. Baig, who is also the partial-investigating-officer and submitted the charge-sheet and 10 Crl. Appeal No.56/2012 CW.7 is examined as PW.7/Lakshminarayana, who is the Handwriting-Expert & Scientific-Officer, FSL, Madiwala, Bengaluru, and thereby placed the reliance-on the documentations marked at Exs.P.1 to P.53, in which Ex.P.1 is the inspection- report, Ex.P.2 is the carbon-copy of the clearing-settlement-sheet, Ex.P.3 is the transfer-credit-slip, Ex.P.4 is the ledger, Ex.P.5 is the long-book, Ex.P.6 is the day-book, Ex.P.7 is the general-ledger, Ex.P.8 is the attendance-register, Ex.P.9 is the carbon-copy of the clearing-settlement-sheet, Ex.P.10 is the transfer-credit-slip, Ex.P.11 is the long-book, Ex.P.12 is the carbon-copy of the clearing-settlement-sheet, Ex.P.13 is the transfer-credit-slip, Ex.P.14 is the entry in ledger, Ex.P.15 is the carbon-copy of the clearing-settlement-sheet, Ex.P.16 is the transfer-credit-slip, Ex.P.17 is the entry in ledger, Ex.P.18 is the carbon-copy of the clearing-settlement-sheet, Ex.P.19 is the transfer-credit-slip, Ex.P.20 is the carbon-copy of the clearing-settlement-sheet, Ex.P.21 is the transfer-credit-slip, Ex.P.22 is the carbon-copy of the clearing-settlement-sheet, Ex.P.23 is the transfer-credit-slip, Ex.P.24 is the carbon-copy of the clearing-settlement-sheet, Ex.P.25 is the transfer-credit-slip, Ex.P.26 is the current-account- ledger, Ex.P.27 is the clearing-settlement-sheet, Ex.P.28 is the transfer-credit-slip, Ex.P.29 is the carbon-copy of the clearing- settlement-sheet, Ex.P.30 is the transfer-credit-slip, Ex.P.31 is the carbon-copy of the clearing-settlement-sheet, Ex.P.32 is the 11 Crl. Appeal No.56/2012 transfer-credit-slip, Ex.P.33 is the carbon-copy of the clearing- settlement-sheet, Ex.P.34 is the transfer-credit-slip, Ex.P.35 is the carbon-copy of the clearing-settlement-sheet, Ex.P.36 is the transfer-credit-slip, Ex.P.37 is the copy of First Information Report, Ex.P.37 is the copy of complaint, Ex.P.38 is the letter, Exs.P.39 to P.44 are the copies of specimen-signatures and initials of accused No.3, Exs.P.45 to P.50 are the copies of specimen-signatures and initials of accused No.2, Exs.P.51 & P.52 are the copies of specimen-handwritings of accused No.2 and Ex.P.53 is the FSL report.
25. To rebut the case of the complainant-prosecution, the accused No.2 has failed to adduce the rebuttal oral-evidence nor placed his reliance-on the documentations.
26. On marshalling the available material on record inclusive of the oral as-well-as documentary-evidence from the complainant- prosecution's-side, it is clear that, there are the allegations against the instant accused No.2, in respect of he having committed the offences punishable U/Secs.409, 477(A) & 201 r/w Section 34 of IPC and the trial court has acquitted him accordingly, for the said offences.
27. Prior to harping-upon the merits of the case, it is pertinent to make it clear that, during the lis pendence before the trial court, the accused No.1 having been stated to have demised, the said case came to be abated against the accused No.1, 12 Crl. Appeal No.56/2012 wherefore, the trial court has decided and pronounced the acquittal-judgment only against the accused No's.2 & 3 who were available for the trial and decision on merits.
28. During the lis pendence on the file of the instant-court, the original-accused No.3/respondent No.2 by name, Annegowda, S/o. R.T. Sannappa, having preferred the Crl. Petition No.3747/216 before the Hon'ble High Court of Karnataka, Bengaluru, for quashing the proceedings herein against him, the said criminal-petition came to be allowed on 16.12.2016 and accordingly, the Hon'ble High Court of Karnataka has quashed the instant-proceedings against the accused No.3/respondent No.2, in exercise of the powers conferred-upon it, U/Sec.482 of Cr.P.C., wherefore, the instant-appeal stood continued only against the accused No.2/respondent No.1.
29. At the very outset, there is no dispute as to the factum that the accused No.2 was serving as Manager of the said Apex Bank, West of Chord Road Branch, Bengaluru, during the said relevant-period from 01.01.1988 to 03.06.1988 being the authority, having the overall control over the bank-transactions during the said period, with the dominion over the money and books of accounts of branch.
30. As per the bank-rules, the procedure of clearing- transaction will be of such a peculiar manner that, at the very outset, the drawee of the cheque in whose favour the cheque has 13 Crl. Appeal No.56/2012 been issued, will be presented along-with a challan containing the counterfoil, with his banker, called as presenting-bank, whereby such presenting-bank in-turn returns the counterfoil to the drawee by retaining the challan and thereafter, the presenting-bank sends the same along-with challan with the schedule containing particulars of cheque to the Head-Office of the said bank, by effecting the entries in the outward-register and on receiving the said cheque by the Head-Office, it effects the entries in the clearing long-book which sends the same along-with challan and schedule of the presenting-bank to the clearing-house of RBI, whereby the said clearing-house of RBI after effecting the relevant-entry in the concerned register sends the same to the Head-Office of the Apex Bank which also effects the entry in the clearing-long-book in the clearing-section therein and thereafter, the Head-Office of the Apex Bank sends the said cheque along-with it's slip and schedule of presenting-bank to the concerned branch from which the amount is to be withdrawn and credited to the account of the drawee, maintained in the presenting-bank. On receiving such cheque in clearance, the concerned bank branch which will honor the cheque if the amount is found in the account of drawer for honoring the cheque and the amount will be debited from the account of the drawer and credited to the current-account of the Apex Bank, Head-Office in RBI, subsequently and then will be credited to the current-account of the Head-Office of the presenting-bank after the 14 Crl. Appeal No.56/2012 amount is debited from the current-account of the presenting-bank and thereby, the amount will be credited to the account of the drawee i.e., the person who had presented the said cheque for clearing.
31. This procedure appears to have been absolutely relied-on by the trial court in the right perspective to deal with the entire- case to arrive-at a conclusion, wherefore, the said procedure having some bearing, considering it as an essential at this stage as readymade-reckoner for better-reference and appreciation of the material available on record in pursuance with the same, is culled- out herein before supra, in nutshell.
32. It is an undisputed fact that the accused No.2 was the Manager of the said Apex Bank, West of Chord Road Branch, Bengaluru, during the said relevant-period, wherefore, he being the authority was having control over the banking-transactions, during the said period with the dominion over the money and registers and etc.
33. It is the specific-allegation of the prosecution that the accused received in all the various-cheques in 13 items as under:
(a) 16 cheques on 04.01.1988 on clearance but the entries have been effected only with regard to 15 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.30,000/- has been misappropriated.
(b) 20 cheques on 18.01.1988 on clearance but the entries have been effected only with regard to 19 cheques without any entry 15 Crl. Appeal No.56/2012 regarding another-cheque and thereby, it's amount of Rs.30,000/- has been misappropriated.
(c) 23 cheques on 08.02.1988 on clearance but the entries have been effected only with regard to 22 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.30,000/- has been misappropriated.
(d) 9 cheques on 15.03.1988 on clearance but the entries have been effected only with regard to 8 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.48,000/- has been misappropriated.
(e) 11 cheques on 17.03.1988 on clearance but the entries have been effected only with regard to 10 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.2,000/- has been misappropriated.
(f) 14 cheques on 22.03.1988 on clearance but the entries have been effected only with regard to 13 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.20,000/- has been misappropriated.
(g) 23 cheques on 29.03.1988 on clearance but the entries have been effected only with regard to 22 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.30,000/- has been misappropriated.
(h) 13 cheques on 12.04.1988 on clearance but the entries have been effected only with regard to 12 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.30,000/- has been misappropriated.
(i) 14 cheques on 23.02.1988 on clearance but the entries have been effected only with regard to 13 cheques without any entry 16 Crl. Appeal No.56/2012 regarding another-cheque and thereby, it's amount of Rs.30,000/- has been misappropriated.
(j) 20 cheques on 08.03.1988 on clearance but the entries have been effected only with regard to 19 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.30,000/- has been misappropriated.
(k) 7 cheques on 19.05.1988 on clearance but the entries have been effected only with regard to 6 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.45,000/- has been misappropriated.
(l) 12 cheques on 03.05.1988 on clearance but the entries have been effected only with regard to 11 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.30,000/- has been misappropriated.
(m) 18 cheques on 03.06.1988 on clearance but the entries have been effected only with regard to 17 cheques without any entry regarding another-cheque and thereby, it's amount of Rs.20,000/- has been misappropriated.
----------- and thereby, in all misappropriated the amount to the tune of Rs.3,81,000/-.
34. When that is so, it is incumbent-upon the prosecution to establish as to whether the instant-accused No.2 along-with other co-accused-persons misappropriated the said amount of Rs.3,81,000/- by falsifying the books of accounts, and etc?. Therefore, the heavy-burden lies-upon the prosecution to establish the same.
17 Crl. Appeal No.56/2012
35. Admittedly, on percolation of the entire-material available on hand, neither the outward-register of the presenting- bank, nor the clearing-long-book maintained in the clearing- section of the head of the presenting-bank, nor the inward and outward-registers of the Head-Office of the presenting-bank, nor the inward and outward-registers of clearing-house of the RBI, nor the long-book maintained at the clearing-house of the RBI, nor the inward and outward-registers of clearing-section of the Head-Office of Apex Bank, nor the clearing-long-book maintained at the Head- Office of Apex Bank, nor the inward-register of the branch, nor the slips along-with the cheques in question, of the Head-Office find place. Apart from the same, admittedly, none of the officials from the presenting-bank or from clearing-house of Apex Bank or from Head-Office, who were working during the said relevant-spell, have been examined.
36. In addenda of the same, it is also clearly admitted by the PW.1 that the statutory-auditor has audited the accounts of the said Apex Bank, West of Chord Road Branch, Bengaluru, and submitted his audit-report. But, unfortunately, either the said audit-report or it's copy in respect of the relevant-point of spell finds place on record. Unfortunately, even the said auditor has not been examined in connection with the accounts, during the relevant-point of spell.
18 Crl. Appeal No.56/2012
37. It is further burden on the prosecution to prove the falsification of books of accounts and causing of destruction and disappearance of the said disputed 13 cheques by the accused No.2.
38. Further, it is the allegation of the prosecution that the accused have falsified the books of accounts manipulating the accounts in the long-book and other-registers maintained by the said Apex Bank.
39. In respect of the same, it is no doubt, apparently the entries in the said long-book and other-relevant-registers, there is an occurrence of manipulation of the accounts. But, the question would arise as to whether the said alleged manipulations in the books of accounts maintained by the Apex Bank, are in the handwritings of the said accused No.2 himself.
40. It is no doubt, in respect of the same, the Handwriting- Expert has been got examined as PW.7 by the prosecution, who has endeavored to depose in favour of the prosecution in- consonance-with his case, handwriting-report/FSL- report which is as per Ex.P.53. But, the said deposition of the PW.7 and Ex.P.53 do-not come to the aid of the prosecution in view of they not being in favour of it. But, as such, there is no evidence forthcoming on record that the accused No.2 himself has caused or effected the alleged manipulations in the said alleged books of accounts maintained by the Apex Bank. In addition to the same, 19 Crl. Appeal No.56/2012 even there is no iota of evidence that the said manipulations have been effected by the staff-members who were the de-facto custodian of the said books of accounts at the instructions of the accused No.2 himself. Even, none of the bank-staff has been got examined with respect to the same though the concerned bank- staff would be the proper-witness to depose regarding the entries effected by him or herein the said books of accounts at the instructions of the accused No.2 only. Therefore, neither the versions of the PW.2 nor the PW.7 nor the urge and allegation of the prosecution against the accused No.2 carry any creditworthiness to rely-upon and believe the same.
41. It is an admitted fact that, the accounts of the said Apex Bank were checked by the internal-checkers and reported to the internal-auditors. If really there was any tracing-out of the falsification, misappropriation, then it was for the internal- checkers to report the same to the respective internal-auditors, who would have in-turn submitted the report to the Director of the Co-operative Audit, more-specifically, with regard to the alleged misappropriation and falsification and disclose the same in the balance-sheet for the relevant-years.
42. In connection with the same, neither the observations nor the report of internal-checker nor the audit-report of the statutory-auditor nor the findings of the Director of the Co- operative Audit for the relevant-period, find place on record. In 20 Crl. Appeal No.56/2012 addition to the same, neither the internal-checker nor the internal- auditor have also been examined. Therefore, there is no substance in the alleged allegations made against the accused No.2.
43. On overall consideration of the oral-evidence of the prosecution-witnesses coupled-with the documentations relied- upon by the prosecution, it is crystal clear that the entire-case of the prosecution is prevailing with the plethora of major- discrepancies along-with the suspicious circumstances creating the fatal-doubts in the mind of this court, wherefore, the instant- court cannot arrive-at a conclusion to hold the accused No.2 are guilty of the alleged offences.
44. Therefore, under all these circumstances, it is crystal clear that the prosecution has utterly failed to establish either the alleged falsification of books of accounts, causing of disappearance of disputed 13 cheques and receiving of the said disputed-cheques, transfer-debit-slips and transfer-credit-slips in due process of banking-procedure or the initials appearing thereon, are belonging to the accused No.2 or his role in the alleged forgery and fabrication of the said disputed-cheques, transfer-debit-slips and transfer-credit-slips and also the knowledge regarding the alleged withdrawal of the said amount, under the disputed 11 cheques, and etc.
45. Therefore, under the circumstances prevailing herein, the alleged said allegations of the prosecution against the accused 21 Crl. Appeal No.56/2012 No.2 that he is guilty of falsification of books of accounts and causing the disappearance of 13 cheques and also the alleged withdrawal-amount thereupon, are absolutely unacceptable and unreliable in the lack of substantial chunk of material for the reasons stated herein before supra.
46. Apart from the same, to put-into simple-terms, there is no iota of evidence on record with respect to the alleged misappropriation of the amount by way of criminal-breach of trust, fabrication and forgery, and destruction of the 13 cheques and documents. When that is so, the accused No.2 cannot be held as guilty for the said alleged offences.
47. Even, it is a well-settled principle of law, reported in 1974 Cri.L.J. 625 in a case between State of U.P. Vs. Jasoda Nandan Gupta & others; and 1981 SCC (Cri) 375 in a case between Tara Singh Vs. State of M.P., in which it is held that, when two views are possible, the accused is entitle for an acquittal.
48. It is significant to note that, on the other-hand, as stated herein before supra, during the lis pendence on the file of the instant-court, the original-accused No.3/respondent No.2 having preferred the Crl. Petition No.3747/2016 before the Hon'ble High Court of Karnataka, Bengaluru, which came to be allowed on 16.12.2016 and the instant-proceedings against the accused No.3/respondent No.2, have been quashed. It is further significant to note that, basically, the said accused No.3/respondent No.2 was 22 Crl. Appeal No.56/2012 also one of the Managers having committed the alleged offences, as per the case of the prosecution. When once the instant-proceedings against the accused No.3/respondent No.2 are quashed as stated herein before supra, by segregating from the accused No.2 who were the Managers during the said relevant-period, then the benefit of such quashing-proceedings as against accused No.3/respondent No.2 certainly leans in favour of the accused No.2 also, whereby it amounts to an absolute fatal-drawback to the case of the prosecution against the accused No.2.
49. Even-otherwise, if this particular aspect is excluded for the time-being and considered, basically the prosecution has failed to establish it's case against the accused No.2 with regard to the alleged offences, as discussed herein before supra.
50. Therefore, in the lack of substantial-evidence from the prosecution's-side, the accused No.2 cannot be held as guilty of the alleged offences punishable U/Secs.409, 477(A) & 201 r/w Section 34 of IPC, in respect of which the trial court has discussed at much-length all the afore-narrated aspects in it's judgment on the sound-principles of law without there-being any errors or infirmities, in respect of which the instant-court also being in agreement, the said trial court's judgment does-not deserve for warranting the interference by the instant-court. 23 Crl. Appeal No.56/2012
51. Therefore, with these observations, this court is inclined to answer the Point No.1 in the 'Affirmative' and Point No.2 in the 'Negative'.
52. Point No.3:- For the reasons discussed at much-length herein before supra, while answering the Point No.1 in the Affirmative and Point No.2 in the Negative, this court is inclined to proceed to pass the following:
O R D E R The instant-criminal-appeal preferred by the appellant/original-complainant against the respondent No.1/original-accused No.2 U/Sec.378(1)(A) of Cr.P.C., against the impugned-judgment passed by the VIII ACMM Court, Bengaluru, in CC No.8097/2001, dated 02.08.2011, is hereby dismissed by upholding and confirming the trial court judgment.
Send the entire LCRs to the trial court, along-with the copy of the instant-judgment immediately, without causing any delay.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 30th day of January, 2017) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
24 Crl. Appeal No.56/2012 (Judgment pronounced in the open-court. Operative-portion of the same is extracted as under) ORDER The instant-criminal-appeal preferred by the appellant/original- complainant against the respondent No.1/original-accused No.2 U/Sec.378(1)(A) of Cr.P.C., against the impugned-judgment passed by the VIII ACMM Court, Bengaluru, in CC No.8097/2001, dated 02.08.2011, is hereby dismissed by upholding and confirming the trial court judgment. Send the entire LCRs to the trial court, along-with the copy of the instant-judgment immediately, without causing any delay. LI Addl. City Civil & Sessions Judge, Bengaluru City.