Bangalore District Court
The State Of Karnataka vs N.C. Mallikarjunaiah on 30 January, 2017
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 30th day of January 2017
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
Crl. Appeal No. 684/2011
Appellant : The State of Karnataka,
Original-Complainant Represented by it's
The Police Inspector,
Fraud Squad, C.O.D. /
Mahalakshmi Layout Police Station,
Bengaluru City.
(By Public Prosecutor)
Vs.
Respondents : 1. N.C. Mallikarjunaiah,
Original-Accused S/o. Late Chennabasappa,
No's.2 & 3 Aged 57 years,
Ex-Branch Manager, Apex Bank,
West of Chord Road Branch,
Working as Manager,
Inspection Department,
Chamarajpet,
Bengaluru.
Residing at- No.543, 5th Cross,
Mahalakshmi Layout,
Bengaluru.
(Accused No.2)
2. Giriraju,
S/o. Late Shivappa,
Aged 51 years,
Residing at- No.209, 5th Cross,
3rd Block, Kalyan Nagar,
Bengaluru.
(Accused No.3)
2 Crl. Appeal No.684/2011
(By Sri Vipin Kumar Jain, Advocate
for Respondents)
* * * *
JUDGMENT
This is an appeal preferred by the appellant/original- complainant against the respondents/original-accused No's.2 & 3 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.8414/2000, dated 11.04.2011.
2. The original-complainant before the trial court having preferred the instant-appeal against the original-accused No's.2 & 3, 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 No's.2 & 3 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.8414/2000 arising-out of the complaint filed by the complainant against the accused- persons for the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC.
4. The epitomized facts projected from the complaint before the trial court run thus:
The accused No.1 being the Cashier and the accused No's.2 & 3 being the Managers of the Apex Bank, West of Chord Road Branch, Bengaluru, were entrusted with the dominion over 3 Crl. Appeal No.684/2011 the property of the bank in the capacity of public-servant, during the period from 13.01.1987 to 22.12.1987, and thereby committed criminal-breach of trust in respect of the bank-money to the tune of Rs.8,81,500/- in the course of business of the said bank by forging, and fabricating 12 transfer-debit-slips 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 33 cheques and thereby, the accused-persons have committed the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC.
5. Thereafter, the trial court has taken the cognizance of the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC.
6. In response to the summons issued against the accused No's.2 & 3, they have put-in their appearance before the trial court through their counsel.
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, 467, 468, 477(A) & 201 r/w Section 34 of IPC were 4 Crl. Appeal No.684/2011 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 8 and placed the reliance-on the documentations marked at Exs.P.1 to P.141.
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 accused No's.2 & 3 being the Managers of the Apex Bank, West of Chord of Branch, during the period in between 13.01.1987 and 22.12.1987, 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 the business of the bank, committed criminal-misappropriation of an amount of Rs.8,81,500/- and committed criminal-breach of trust and to conceal the same, forged and fabricated 12 transfer-debit-slips dated 13.01.1987, 10.02.1987, 03.02.1987, 21.02.1987, 24.02.1987, 03.03.1987, 10.03.1987, 24.03.1987, 07.04.1987, 26.05,1987, 12.08.1987 for the said purpose of committing criminal- 5 Crl. Appeal No.684/2011 breach of trust and with dishonest and fraudulent- intention falsified the books of accounts maintained in the bank namely long-book, SB accounts, ledger-sheets, debit-slips, settlement-registers 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 33 cheques and thereby the accused have committed the offences punishable under Sections 409, 467, 477(A), 468 & 201 r/w Section 34 of IPC, 1860?
(2) What order?
14. The trial court has given the findings on the points for consideration raised by it, as under:
Point No.1 .. In the Negative.
Point No.2 .. As per the final-order,
for the following.
-------- and thereby acquitted the accused No'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 respondents/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 and appreciating the facts and circumstances of the case properly.
(b) The impugned-judgment passed by the trial court is contrary to the facts, material and evidence placed on record.
(c) The trial court has lost it's sight to consider the detail-
deposition of PW.2 who is the Auditor and 33 cheques 6 Crl. Appeal No.684/2011 and 12 transfer-debit-slips which disclose the misappropriation of bank-amount of Rs.8,81,500/- 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 forged and fabricated 12 transfer-debit-slips 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 33 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.8/Handwriting-Expert in connection with the handwritings of the accused No's.2 & 3 by way of initials and signatures in the said disputed transfer-debit-slips and books of accounts, and etc.
(g) Though there is sufficient-material in favour of the prosecution against the accused No's.2 & 3 for having committed the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC, the trial court has lost it's sight to appreciate the material available on record in the right perspective and erroneously acquitted the accused-persons.
Hence, prayed for allowing the instant-appeal.
16. Per contra, the respondents/accused No's.2 & 3 have not filed any counter-objections to the instant-appeal-memo. 7 Crl. Appeal No.684/2011
17. I have heard the arguments of the learned counsel for the respondents/accused No's.2 & 3 as-well-as the learned Public Prosecutor for the appellant/complainant.
18. Basing-on the material available on record and grounds of appeal, the points that arise for my consideration are:
(1) Whether the trial court has justified in negating the Point No.1 raised for it's consideration holding that the prosecution has utterly failed to prove the alleged offences punishable U/Secs.409, 467, 468, 477-A & 201 r/w Section 34 of IPC against the accused No's.2 & 3 beyond the shadow of all the reasonable-doubts and thereby, acquitted the accused No's.2 & 3?
(2) Whether the impugned-judgment of the trial court is arbitrary, baseless, capricious, devoid of merits, erroneous, frivolous and perverse without being on the sound-
principles of law and warrants for the interference by the instant-court?
(3) To what order?
19. The findings on the above points are as under:
Point No.1 .. In the Affirmative.
Point No.2 .. In the Negative.
Point No.3 .. As per the final-order, for
the following:
REASONS
20. The status and ranking assigned in the trial court to the complainant and the accused No's.2 & 3 are being adopted and 8 Crl. Appeal No.684/2011 adhered-to in the instant-discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
21. Point No's.1 & 2:- To avoid the reiteration of the material available in hand and to appreciate the evidence adduced before the trial court, in a better-position, I hereby take-up the instant Point No's.1 & 2 together admixingly for discussion.
22. It is the specific-contention of the complainant by way of his complaint that, the accused No.1 being the Cashier and the accused No's.2 & 3 being the Managers 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 13.01.1987 to 22.12.1987, and thereby committed criminal-breach of trust in respect of the bank-money to the tune of Rs.8,81,500/- in the course of business of the said bank by forging, and fabricating 12 transfer-debit-slips 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 33 cheques and thereby, the accused-persons have committed the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC. The accused No.1 being the Cashier and the accused No's.2 & 3 being the Managers 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, 9 Crl. Appeal No.684/2011 during the period from 13.01.1987 to 22.12.1987, and thereby committed criminal-breach of trust in respect of the bank-money to the tune of Rs.8,81,500/- in the course of business of the said bank by forging, and fabricating 12 transfer-debit-slips 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 33 cheques and thereby, the accused-persons have committed the offences punishable U/Secs.409, 467, 468, 477(A) & 201 r/w Section 34 of IPC.
23. To substantiate it's case, the prosecution has got examined the evidence of the witnesses, in all, as PWs.1 to 8, in which CW.1 is examined as PW.1/D.E. Puttaraju, who was the Manager in Karnataka Co-operative Apex Branch, West of Chord Road Branch, Bengaluru; CW.2 is examined as PW.2/Mohammed Samiulla, who was working as internal-auditor in the Karnataka State Co-operative Apex Bank, West of Chord Road Branch, Bengaluru; CW.8 is examined as PW.3/V. Shekar, who is the PSI and also the partial-investigating-officer having registered the complaint; CW.10 is examined as PW.4/B.G. Kavatekar, who is the Police-Inspector as-well-as the partial-investigating-officer; CW.6 is examined as PW.5/Sharanabasappa B. Angadi, who is the Chief General Manager of the said Apex Bank; CW.5 is examined as PW.6/C. Ramanna Gowda, who is the account-holder of the said 10 Crl. Appeal No.684/2011 Apex Bank; CW.9 is examined as PW.7/Lakshminarayana, who is the Scientific-Officer, FSL, Madiwala, Bengaluru and CW.11 is examined as PW.8/E.A. Baig, who is the Police-Inspector as-well- as the partial-investigating-officer, and thereby placed the reliance- on the documentations marked at Exs.P.1 to P.141, in which Ex.P.1 is the certified-copy of complaint, Ex.P.2 is the inspection- report, Ex.P.3 is the carbon-copy of the clearing-settlement-sheet, Ex.P.4 is the transfer-credit-slip, Ex.P.5 is the ledger, Ex.P.6 is the transfer-debit-slip, Ex.P.7 is the bill-collection-register, Ex.P.8 is the long-book, Ex.P.9 is the day-book, Ex.P.10 is the general- ledger, Ex.P.11 is the account-ledger, Ex.P.12 is the attendance- register, Ex.P.13 is the carbon-copy of the clearing-settlement- sheet, Ex.P.14 is the transfer-credit-slip, Ex.P.15 is the long-book, Ex.P.16 is the transfer-debit-slip, Ex.P.17 is the carbon-copy of the clearing-settlement-sheet, Exs.P.18 & P.19 are the transfer-credit- slips, 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 transfer-debit- slip, Ex.P.23 is the carbon-copy of the clearing-settlement-sheet, Ex.P.24 is the transfer-credit-slip, Ex.P.25 is the account-ledger, Ex.P.26 is the transfer-debit-slip, Ex.P.27 is the carbon-copy of the clearing-settlement-sheet, Ex.P.28 is the transfer-credit-slip, Ex.P.29 is the transfer-debit-slip, Ex.P.30 is the carbon-copy of the clearing-settlement-sheet, Ex.P.31 is the transfer-credit-slip, Ex.P.32 is the transfer-debit-slip, Ex.P.33 is the carbon-copy of the 11 Crl. Appeal No.684/2011 clearing-settlement-sheet, Ex.P.34 is the transfer-credit-slip, Ex.P.35 is the transfer-debit-slip, Ex.P.36 is the carbon-copy of the clearing-settlement-sheet, Ex.P.37 is the transfer-credit-slip, Ex.P.38 is the transfer-debit-slip, Ex.P.39 is the carbon-copy of the clearing-settlement-sheet, Ex.P.40 is the transfer-credit-slip, Ex.P.41 is the transfer-debit-slip, Ex.P.42 is the carbon-copy of the clearing-settlement-sheet, Ex.P.43 is the transfer-credit-slip, Ex.P.44 is the carbon-copy of the clearing-settlement-sheet, Ex.P.45 is the transfer-credit-slip, Ex.P.46 is the carbon-copy of the clearing-settlement-sheet, Ex.P.47 is the transfer-credit-slip, Ex.P.48 is the carbon-copy of the clearing-settlement-sheet, Ex.P.49 is the transfer-credit-slip, Ex.P.50 is the carbon-copy of the clearing-settlement-sheet, Ex.P.51 is the transfer-credit-slip, Ex.P.52 is the transfer-debit-slip, Ex.P.53 is the account-ledger, Ex.P.54 is the carbon-copy of the clearing-settlement-sheet, Ex.P.55 is the transfer-credit-slip, Ex.P.56 is the carbon-copy of the clearing-settlement-sheet, Ex.P.57 is the transfer-credit-slip, Ex.P.58 is the carbon-copy of the clearing-settlement-sheet, Ex.P.59 is the transfer-credit-slip, Ex.P.60 is the carbon-copy of the clearing-settlement-sheet, Ex.P.61 is the transfer-credit-slip, Ex.P.62 is the long-book, Ex.P.63 is the day-book, Ex.P.64 is the carbon-copy of the clearing-settlement-sheet, Ex.P.65 is the transfer-credit-slip, Ex.P.66 is the carbon-copy of the clearing- settlement-sheet, Ex.P.67 is the transfer-credit-slip, Ex.P.68 is the 12 Crl. Appeal No.684/2011 long-book, Ex.P.69 is the carbon-copy of the clearing-settlement- sheet, Ex.P.70 is the transfer-credit-slip, Ex.P.71 is the carbon- copy of the clearing-settlement-sheet, Ex.P.72 is the transfer- credit-slip, Ex.P.73 is the carbon-copy of the clearing-settlement- sheet, Ex.P.74 is the transfer-credit-slip, Ex.P.75 is the carbon- copy of the clearing-settlement-sheet, Ex.P.76 is the transfer- credit-slip, Ex.P.77 is the general-ledger, Ex.P.78 is the carbon- copy of the clearing-settlement-sheet, Ex.P.79 is the transfer- credit-slip, Ex.P.80 is the carbon-copy of the clearing-settlement- sheet, Ex.P.81 is the transfer-credit-slip, Ex.P.82 is the carbon- copy of the clearing-settlement-sheet, Ex.P.83 is the transfer- credit-slip, Ex.P.84 is the carbon-copy of the clearing-settlement- sheet, Ex.P.85 is the transfer-credit-slip, Ex.P.86 is the carbon- copy of the clearing-settlement-sheet, Ex.P.87 is the transfer- credit-slip, Ex.P.88 is the carbon-copy of the clearing-settlement- sheet, Ex.P.89 is the transfer-credit-slip, Ex.P.90 is the carbon- copy of the clearing-settlement-sheet, Ex.P.91 is the transfer- credit-slip, Ex.P.92 is the carbon-copy of the clearing-settlement- sheet, Ex.P.93 is the transfer-credit-slip, Ex.P.94 is the carbon- copy of the clearing-settlement-sheet, Ex.P.95 is the transfer- credit-slip, Ex.P.96 is the long-book, Ex.P.97 is the transfer-debit- slip, Ex.P.98 is the copy of First Information Report, Ex.P.99 is the transfer-credit-slip, Exs.P.100 & P.101 are the letters by the accused No.3, Exs.P.102 to P.113 are the copies of specimen- 13 Crl. Appeal No.684/2011 signatures and initials of the accused No.3, Exs.P.114 to P.120 are the copies of specimen-signatures of the accused No.3, Exs.P.121 to P.138 are the copies of specimen-signatures and initials of the accused No.2, Exs.P.139 & P.140 are the copies of specimen- handwritings and signatures of the accused No.2 and Ex.P.141 is the FSL report.
24. To rebut the case of the complainant-prosecution, the accused No's.2 & 3 have failed to adduce the rebuttal oral-evidence nor placed their reliance-on the documentations.
25. 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's.2 & 3, in respect of they having committed the offences punishable U/Secs.409, 467, 468, 477(A), & 201 r/w Section 34 of IPC and the trial court has acquitted them accordingly, for the said offences.
26. Prior to harping-upon the merits of the case, it is pertinent to make clear that, during the lis pendence before the trial court, the accused No.1 having been stated to have demised, the said case came to be abated against the accused No.1, wherefore, the trial court has decided and pronounced the acquittal-judgment only against the accused No's.2 & 3 who were available for the trial and decision on merits.
14 Crl. Appeal No.684/2011
27. At the very outset, there is no dispute as to the factum that the accused No's.2 & 3 were serving as Managers of the said Apex Bank, West of Chord Road Branch, Bengaluru, during the said relevant-period from 13.01.1987 to 22.12.1987 being the authorities, having the overall control over the bank-transactions during the said period, with the dominion over the money and books of accounts of branch.
28. As per the bank-rules, the procedure of clearing- transaction will be of such a peculiar manner that, at the very outset, the drawee of the cheque in whose favour the cheque has been issued, will be presented along-with a challan containing the counterfoil, with his banker, called as presenting-bank, whereby such presenting-bank in-turn returns the counterfoil to the drawee 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 15 Crl. Appeal No.684/2011 Bank sends the said cheque along-with it's slip and schedule of presenting-bank to the concerned branch from which the amount is to be withdrawn and credited to the account of the drawee, maintained in the presenting-bank. On receiving such cheque in clearance, the concerned bank branch which will honor the cheque if the amount is found in the account of drawer for honoring the cheque and the amount will be debited from the account of the drawer and credited to the current-account of the Apex Bank, Head-Office in RBI, subsequently and then will be credited to the current-account of the Head-Office of the presenting-bank after the amount is debited from the current-account of the presenting-bank and thereby, the amount will be credited to the account of the drawee i.e., the person who had presented the said cheque for clearing.
29. This procedure appears to have been absolutely relied-on by the trial court in the right perspective to deal with the entire- case to arrive-at a conclusion, wherefore, the said procedure having some bearing, considering it as an essential at this stage as readymade-reckoner for better-reference and appreciation of the material available on record in pursuance with the same, is culled- out herein before supra, in nutshell.
30. It is an undisputed fact that the accused No's.2 & 3 were the Managers of the said Apex Bank, West of Chord Road Branch, Bengaluru, during the said relevant-period, wherefore, they being 16 Crl. Appeal No.684/2011 the authorities were having control over the banking-transactions, during the said period with the dominion over the money and registers and etc.
31. It is the specific allegation of the prosecution that the accused have forged and fabricated 12 transfer-debit-slips and also caused the disappearance of the 33 cheques, depicting as if by receiving the said disputed 12 cheques for clearance purpose from the respective-accounts and thereby, misappropriated the same.
32. When that is so, it is incumbent-upon the prosecution to establish as to whether the said Apex Bank received the said disputed 33 cheques in clearing from the presenting-bank?. Basically, the absolute burden lies-on the prosecution with respect to this particular aspect.
33. Admittedly, on percolation of the entire-material available on hand, neither the challans related to the 33 disputed- cheques, nor 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 17 Crl. Appeal No.684/2011 along-with the cheques in question, of the Head-Office find place. Apart from the same, admittedly, none of the officials from the presenting-bank or from clearing-house of Apex Bank or from Head-Office, who were working during the said relevant-spell, have been examined.
34. In addenda of the same, it is also clearly admitted by the PW.2 that the statutory-auditor has audited the accounts of the said Apex Bank, West of Chord Road Branch, Bengaluru, and submitted his audit-report. But, unfortunately, either the said audit-report or it's copy in respect of the relevant-point of spell finds place on record. Unfortunately, even the said auditor has not been examined in connection with the accounts, during the relevant-point of spell.
35. It is further burden on the prosecution to prove the falsification of books of accounts and causing of destruction and disappearance of the said disputed 33 cheques and also forging and fabricating of 12 transfer-debit-slips by the accused No's.2 &
3.
36. With respect to the same, the prosecution has got examined the PW.7 who is none-other than the Handwriting- Expert, has endeavored to depose in favour of the prosecution palpitating with his handwriting-report which is already marked as per Ex.P.141, in which it has been clearly opined that the writings therein are of the accused No.1. Moreover, according to the very- 18 Crl. Appeal No.684/2011 versions of the PW.2, the initials in the said disputed 12 transfer- debit-slips marked at Exs.P.6, P.16, P.19, P.22, P.26, P.29, P.32, P.35, P.38, P.41, P.52 & P.96 are of the accused No's.2 & 3.
37. Therefore, it is an admitted fact that the PW.2 has not worked with the accused No's.2 & 3 and never seen the signing or putting the initials by the accused No.2 personally. But, unfortunately, the PW.2 has deposed that, he is conversant with the initials and signatures of the accused No's.2 & 3 as he has come across with the same, from several-correspondences of the accused No's.2 & 3. But, unfortunately, no substantial- documentary-evidence stated to be such disputed correspondence finds place on record. Even, the Handwriting-Expert who has been got examined as PW.7 has issued his report as per Ex.P.141 expressing his opinion in unequivocal-terms to the effect that it is not possible to fix the authorship of questioned initials on the said 16 disputed-cheques.
38. It is pertinent to note that, even-otherwise, if considered the very oral-evidence of the PWs.2 & 7 coupled-with Ex.P.141, it clearly goes to imply that there is no substantial-evidence to the effect that the accused No's.2 & 3 themselves have forged the 12 transfer-debit-slips and falsified the books of accounts. But, on the other-hand, it could be presumed that the said 12 transfer- debit-slips might have been initialed by the accused No.1 resembling the said disputed-initials with the initials of the 19 Crl. Appeal No.684/2011 accused No's.2 & 3, if really the said disputed 33 cheques have been received by the accused No.1. But, the same have remained absolutely behind and back of the accused No's.2 & 3 without their knowledge, as for the reasons stated herein before supra, whereas, they have not been received by the accused No's.2 & 3. Even, none of the officials have been examined by the prosecution, who have actually seen the accused No's.2 & 3 signing or putting their initials on the said disputed 12 transfer-debit-slips.
39. Even, there is no substantial iota of evidence from the prosecution with regard to the allegation of the prosecution that the accused No's.2 & 3 were having the knowledge as to withdrawal of the amounts on the disputed-cheques. In the ordinary-course of bank-transaction, the entries in the registers will be made by the staff, admittedly. In respect of the same, the concerned bank-staff would be appropriate and befitted witnesses to say as to whether the entries have been effected in the clearing- register, long-book, day-book and general-register, at the instructions of the Managers or otherwise, and similarly in the instant-case also, the concerned bank-staff would be the proper- witnesses to depose regarding the entries effected by him in the said books of accounts at the instructions of the instant-accused No's.2 & 3. But, with respect to the same, none of the concerned bank-staff has been got examined with respect to the same. 20 Crl. Appeal No.684/2011
40. Apart from the same, it is the specific-allegation of the prosecution that all the accused-persons have committed the misappropriation of the bank-amount to the tune of Rs.8,81,500/- and thereafter fabricated the transfer-debit-slips and falsified the entries in the books of accounts. But, in respect of the same, at the very outset, it is incumbent-upon the prosecution to establish that the said amounts were withdrawn illegally by the accused- persons. But, unfortunately, there is no iota of evidence on record in respect of the same. Apart from the same, there is no evidence to the effect that on what date, which accused, in what mode and how and to what extent the amounts have been withdrawn and utilized the same for their self-purpose by the said accused- persons. Even, there is no any evidence of account-holders to hold that their amounts have been withdrawn by the accused-persons from their accounts in the said Apex Bank, West of Chord Road Branch, Bengaluru. Therefore, the said allegations of the prosecution hold no water and alimentation to believe and accept the same as against the accused-persons.
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 fabrication, falsification and 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 21 Crl. Appeal No.684/2011 Director of the Co-operative Audit, more-specifically, with regard to the alleged misappropriation and falsification and fabrication 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 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's.2 & 3.
43. If really the disputed-cheques were received by the Apex Bank, West of Chord Road Branch, Bengaluru, from the various banks for clearing purpose, then the question of colluding by the accused No's.2 & 3 with the accused No.1 to forge the said alleged cheques, would have never arised at-all.
44. The prosecution has urged dichotomically to the effect that, on one-hand, the disputed-cheques were received by the accused No's.2 & 3 from the presenting-bank under the clearance, whereas, on the other-hand, the accused themselves have fabricated the 12 transfer-debit-slips misused the 33 cheques in their custody and caused disappearance of the same; but in respect of the alleged receiving of the disputed 33 cheques by the accused No's.2 & 3, no iota of evidence is forthcoming on record. Apart from the same, if at-all the said Apex Bank had received 33 22 Crl. Appeal No.684/2011 disputed-cheques for clearance, then the allegation of the prosecution that the accused No's.2 & 3 have fabricated the said 33 transfer-debit-slips does-not stand because preparing of debit- slips will be consequent-upon the honoring of cheques received for clearance for the purpose of debiting the amounts of cheques from the accounts of the drawers. Therefore, two different-versions of the prosecution as stated herein before supra, are prevailing in contravention with each-other. The prosecution cannot sail in two- boats at a time. Therefore, the said urge on the prosecution holds no water.
45. It is also significant to note that, at the very outset, neither the prosecution has succeeded in establishing that the said Apex Bank, West of Chord Road Branch, Bengaluru, had ever received the said disputed 33 cheques in pursuance with the due process of banking-procedure, nor it has adduced any evidence in respect of the same, wherefore, the urge of the prosecution by way of allegation against the accused No's.2 & 3 that he has caused the disappearance of the disputed 33 cheques holds no water and alimentation.
46. 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 23 Crl. Appeal No.684/2011 the fatal-doubts in the mind of this court, wherefore, the instant- court cannot arrive-at a conclusion to hold the accused No's.2 & 3 are guilty of the alleged offences.
47. 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, falsification of books of accounts and fabrication of 12 transfer- debit-slips, and destruction of the 33 disputed-cheques and documents. When that is so, the accused No's.2 & 3 cannot be held as guilty for the said alleged offences.
48. 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 33 cheques and receiving of the said disputed 33 cheques, and fabrication of 12 transfer-debit-slips and the initials appearing thereon, the 12 disputed transfer-debit-slips, are belonging to the accused No's.2 & 3 or their role in the alleged falsification books of accounts and forgery and fabrication of the said disputed 12 transfer-debit-slips and causing of disappearance of 33 disputed-cheques and also the knowledge regarding the alleged withdrawal of the said amount under the disputed 33 cheques, and etc., with the alleged misappropriation of amount by way of criminal-breach of trust.
24 Crl. Appeal No.684/2011
49. Therefore, under the circumstances prevailing herein, the alleged said allegations of the prosecution against the accused No's.2 & 3 that they are guilty of falsification of books of accounts and causing the disappearance of 33 cheques and forgery and fabrication of the disputed 12 transfer-debit-slips and also the alleged withdrawal of amount thereupon, are absolutely unacceptable and unreliable in the lack of substantial chunk of material for the reasons stated herein before supra.
50. 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.
51. Therefore, in the lack of substantial-evidence from the prosecution's-side, the accused No's.2 & 3 cannot be held as guilty of the alleged offences punishable U/Secs.409, 468, 467, 477(A) & 201 r/w Section 34 of IPC, in respect of which the trial court has discussed at much-length all the afore-narrated aspects in it's judgment on the sound-principles of law without there-being any errors or infirmities, in respect of which the instant-court also being in agreement, the said trial court's judgment does-not deserve for warranting the interference by the instant-court. 25 Crl. Appeal No.684/2011
52. Therefore, with these observations, this court is inclined to answer the Point No.1 in the 'Affirmative' and Point No.2 in the 'Negative'.
53. 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 respondents/original- accused No's.2 & 3 U/Sec.378(1)(A) of Cr.P.C., against the impugned-judgment passed by the VIII ACMM Court, Bengaluru, in CC No.8414/2000, dated 11.04.2011, 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.26 Crl. Appeal No.684/2011
(Judgment pronounced in the open-court. Operative-portion of the same is extracted as under) ORDER The instant criminal-appeal preferred by the appellant/original-
complainant against the respondents/original-accused No's.2 & 3 U/Sec.378(1)(A) of Cr.P.C., against the impugned- judgment passed by the VIII ACMM Court, Bengaluru, in CC No.8414/2000, dated 11.04.2011, 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.