Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 15, Cited by 3]

Karnataka High Court

M.M.Vijayaraghavan vs State By Central Bureau Of ... on 28 October, 2013

Author: N.Ananda

Bench: N. Ananda

                              1



   IN THE HIGH COURT OF KARNATAKA AT BANGALORE

       DATED THIS THE 28TH DAY OF OCTOBER 2013

                        BEFORE

           THE HON'BLE MR.JUSTICE N. ANANDA

         CRIMINAL APPEAL No.582/2009 C/W
 CRIMINAL APPEAL Nos.584/2009, 585/2009 & 586/2009


BETWEEN:

M.M.VIJAYARAGHAVAN, MAJOR
OCC: CASHIER (UDC)
CENTRE FOR AERONAUTICAL
SYSTEMS STUDIES & ANALYSIS, (CASSA)
MINISTRY OF DEFENCE, DRDO
NEW THIPPASANDRA, BANGALORE
NOW R/AT NO.1, I FLOOR
'NEW LAKSHMAIAH BUILDINGS'
15TH CROSS, NAGAVARA PALYA
C.V.RAMAN NAGAR
BANGALORE-560 093.               ... COMMON APPELLANT

(BY SRI B C MUDDAPPA, ADV.)


AND:


STATE BY
CENTRAL BUREAU OF INVESTIGATION (CBI)
A.C.B, BANGALORE.             ... COMMON RESPONDENT

(BY SRI C H JADHAV, SENIOR ADVOCATE)
                           2



     CRL.A.No.582/2009 IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
OF CONVICTION DATED 16.6.2009, PASSED BY THE XXI
ADDITIONAL CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE
FOR CBI CASES, BANGALORE IN SPL.C.C.NO.131/1999 & ETC.


     CRL.A.No.584/2009 IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
OF CONVICTION DATED 16.6.2009, PASSED BY THE XXI
ADDITIONAL CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE
FOR CBI CASES, BANGALORE IN SPL.C.C.NO.132/1999 & ETC.


     CRL.A.No.585/2009 IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
OF CONVICTION DATED 16.6.2009, PASSED BY THE XXI
ADDITIONAL CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE
FOR CBI CASES, BANGALORE IN SPL.C.C.NO.133/1999 & ETC.



     CRL.A.No.586/2009 IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
OF CONVICTION DATED 16.6.2009, PASSED BY THE XXI
ADDITIONAL CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE
FOR CBI CASES, BANGALORE IN SPL.C.C.NO.134/1999 & ETC.


     THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                3



                       JUDGMENT

The case of the prosecution leading to trial of accused and findings of the trial court are as follows:

2. The accused was working as a Cashier (Upper Division Clerk) in the Centre for Aeronautical Systems Studies & Analysis (for short "CASSA"), Ministry of Defence, DRDO, New Thippasandra, Bangalore. He is alleged to have misused his office as a public servant viz., Cashier of CASSA during the period between 03.07.1986 and 29.11.1986 by dishonestly misappropriating or otherwise converting for his own use the money entrusted for him to deposit the same through Military Receivable Orders (for short "MROs") with State Bank of India, HAL Branch. The accused in order to misappropriate the money as aforestated is alleged to have forged the MROs by affixing the forged rubber stamp seal of State Bank of India, HAL Branch and also forged the signatures of concerned officials of the bank. The accused is alleged to have falsified the entries in the cash register. The 4 accused is alleged to have caused disappearance of evidence by destroying two out of four copies of MROs.
3. Spl.C.C.No.130/1999 was filed against the accused for committing aforestated offences in relation to MRO bearing No.CASSA/202/1 dated 18.09.1991 for a sum of Rs.137/-

and MRO bearing No.CASSA/202/1 dated 18.09.1991 for a sum of Rs.654/-.

4. In Spl.C.C.No.131/1999 the accused is alleged to have committed aforestated offences in relation to 4 MROs and misappropriated a sum of Rs.64,333/- during the period between 22.06.1992 and 14.12.1992.

5. In Spl.C.C.No.132/1999 the accused is alleged to have committed aforestated offences in relation to 14 MROs and misappropriated a sum of Rs.1,01,749/- during the period between 06.04.1993 to 12.12.1993.

6. In Spl.C.C.No.133/1999 the accused is alleged to have committed aforestated offences in relation to 39 MROs and 5 misappropriated a sum of Rs.1,31,997/- during the period between 21.01.1994 to 29.12.1994.

7. In Spl.C.C.No.134/1999 the accused is alleged to have committed aforestated offences in relation to 18 MROs and misappropriated a sum of Rs.1,01,379/- during the period between 09.01.1995 to 24.08.1995.

8. The accused was tried for offences punishable under Sections 472, 467, 409, 471, 477-A and 201 IPC and also for offences punishable under Sections 13 (2) r/w 13 (1) (c) of the Prevention of Corruption Act, 1988.

9. In the aforestated cases, separate final reports were filed against the accused. The learned Special Judge framed separate charges in the aforestated cases.

10. When the cases were posted for trial, the learned counsel for accused filed an application to club Spl.C.C.No.130/1999 to Spl.C.C.No.134/1999 and permit the prosecution to lead common evidence on the ground that 6 offences alleged against the accused are of similar nature; they are alleged to have been committed during different periods of time; the prosecution proposes to lead common evidence; the joint trial and disposal of aforestated cases by a common judgment will be in the interest of accused. The learned Public Prosecutor for respondent did not oppose the application. Therefore, common evidence was recorded in Spl.C.C.Nos.130/1999 to 134/1999.

11. The learned Special Judge acquitted the accused in Spl.C.C.No.130/1999 for failure of prosecution to produce primary evidence viz., MRO bearing No.CASSA/202/1 dated 18.09.1991 for a sum of Rs.137/- and MRO bearing No.CASSA/202/1 dated 18.09.1991 for a sum of Rs.654/-.

12. The learned Special Judge on appreciation of common evidence adduced in proof of charges framed against the accused in Spl.C.C.Nos.131/1999, 132/1999, 133/1999 and 134/1999 held the accused guilty of offences punishable under Sections 409, 467, 471, 472, 477-A and 7 201 IPC, and also of offences punishable under Sections 13 (2) r/w 13 (1) of the Prevention of Corruption Act, 1988, and sentenced the accused to undergo simple imprisonment for a period of 3 years with fine and default sentence for offences punishable under Sections 409, 467, 471, 472 IPC and sentenced the accused to undergo imprisonment for a period of two years for an offence punishable under Section 477-A IPC, and further sentenced the accused to undergo imprisonment for a period one year for an offence punishable under Section 201 IPC and also to undergo simple imprisonment for a period of three years with default sentence for offences punishable under Sections 13 (2) r/w 13 (1) (c) of the Prevention of Corruption Act, 1988. The learned Special Judge has directed that sentence of imprisonment imposed in the aforestated cases shall run concurrently.

13. The respondent has not challenged the order of acquittal in Spl.C.C.No.130/1999. Therefore, it is not 8 necessary for this court to advert to the charges and evidence adduced in Spl.C.C.No.130/1999.

14. The accused has filed Crl.A 582/2009 against judgment of conviction made in Spl.C.C.No.131/1999; Crl.A 584/2009 against judgment of conviction made in Spl.C.C.No.132/1999; Crl.A 585/2009 against judgment of conviction made in Spl.C.C.No.133/1999 and Crl.A 586/2009 against judgment of conviction made in Spl.C.C.No.134/1999.

15. The case of prosecution, nature of allegations made against accused, evidence adduced by prosecution and the findings recorded by the learned Special Judge are briefly stated thus:

The accused was working as an Upper Division Clerk (UDC) in CASSA, which is a defence establishment. In terms of order dated 09.07.1986 (marked as per Ex.P200), the Director of CASSA entrusted duties of Cashier to the accused on 09.07.1986 and also granted Special Pay of Rs.40/- per 9 month. The main duties of the accused as a Cashier were;-

receive the cash; disbursement of cash; writing of cash book; preparing MROs and remitting cash to the account of CASSA under the MROs to State Bank of India, HAL Branch, Bangalore.

CASSA is a Research Development Center attached to Ministry of Defence. The officials were being deputed to different places for which purpose they were being paid advance T.A. and D.A. After completion of their assignments, they used to return the excess amount drawn by them. The accused was issuing receipts under IAFA 179 Form. The accused used to make entries in the Cash Book and prepare MROs in Quadruplicate. After obtaining counter signatures from the concerned officials, the accused was remitting the amount under MROs to account of CASSA maintained with State Bank of India, HAL Branch. At this stage, it is necessary to state that CASSA was not using the Pay-in-Slip provided by the Bank. After remittance of amount under the MROs, the concerned Cashier of the Bank used to 10 acknowledge receipt of money by affixing his signature and seal of the bank on MRO in Quadruplicate. The bank used to retain two copies of MROs and the concerned cashier of the bank used to return two copies of MROs to the accused. The accused was sending one of the copy of MRO along with necessary particulars to the Controller of Defence Accounts (for short "CDA") at New Delhi. The bank was also sending one copy of MRO to CDA. CDA used to finalise the bills. On receipt of copies one from the bank and another from CASSA.

16. In Spl.C.C.No.131/1999, the accused is alleged to have misappropriated a sum of Rs.64,333/- during the period between 22.06.1992 to 14.12.1992, the details of which are as follows:

1 CASSA/151/1 22.06.1992 Rs. 3,553-00 2 CASSA/151/1 12.08.1992 Rs.25,000-00 3 CASSA/151/1 22.09.1992 Rs.24,200-00 4 CASSA/151/1 14.12.1992 Rs.11,580-00 Rs.64,333-00 11

17. In Spl.C.C.No.132/1999, the accused is alleged to have misappropriated a sum of Rs.1,01,749/- during the period between 06.04.1993 to 12.12.1993, the details of which are as follows:

1 CASSA/151/1 06.04.1993 Rs.50,000-00 2 CASSA/211 03.07.1993 Rs.752-00 3 CASSA/211 03.07.1993 Rs.252-00 4 CASSA/202/B 05.08.1993 Rs.1,572-00 5 CASSA/202/1 27.09.1991 Rs.17,600-00 6 CASSA/202/B 18.10.1993 Rs.2,837-00 7 CASSA/202/B 18.10.1993 Rs.564-00 8 CASSA/202/B 28.10.1993 Rs.798-00 9 CASSA/202 10.11.1993 Rs.2,136-00 10 CASSA/202/B 18.11.1993 Rs.691-00 11 CASSA/202/2 26.11.1993 Rs.11,100-00 12 CASSA/202/2 26.11.1993 Rs.1,249-00 13 CASSA/202/1 03.12.1993 Rs.5,644-00 14 CASSA/112/1 12.12.1993 Rs.6,554-00 Rs.1,01,749-00

18. In Spl.C.C.No.133/1999, the accused is alleged to have misappropriated a sum of Rs.1,31,997/- during the period between 21.01.1994 to 29.12.1994, the details of which are as follows:

1 CASSA/202/8 21.01.94 Rs.2,000.00 2 CASSA/202/B 27.11.94 Rs.1,060.00 12 3 CASSA/202/B 27.01.94 Rs.1,060.00 4 CASSA/202/B 21.02.95 Rs.483.00 5 CASSA/202/B 21.02.94 Rs.483.00 6 CASSA/202/1 23.02.94 Rs.14,300.00 7 CASSA/202/1 23.02.94 Rs.1,879.00 8 CASSA/202/LTC/NGO 21.03.94 Rs.4,600.00 9 CASSA/202/LTC 25.03.94 Rs.2,540.00 10 CASSA/202/1 25.03.94 Rs.11,521.00 11 CASSA/202/B 13.05.94 Rs.1,132.00 12 CASSA/202/B 24.05.94 Rs.2,002.00 13 CASSA/202/B 01.06.94 Rs.2,515.00 14 CASSA/202/B 01.06.94 Rs.1,234.00 15 CASSA/202/B 01.06.94 Rs.1,142.00 16 CASSA/202/B 15.06.95 Rs.5,660.00 17 CASSA/202/B 06.07.94 Rs.3,324.00 18 CASSA/202/8 15.07.94 Rs.703.00 19 CASSA/202/8 15.07.94 Rs.703.00 20 CASSA/202/8 20.07.94 Rs.1,882.00 21 CASSA/202/8 15.07.94 Rs.703.00 22 CASSA/202/8 15.07.94 Rs.1,882.00 23 CASSA/202/8 15.07.94 Rs.703.00 24 CASSA/202/8 15.07.94 Rs.703.00 25 CASSA/202/8 15.07.94 Rs.703.00 26 CASSA/202/8 15.07.94 Rs.703.00 27 CASSA/202/8 15.07.94 Rs.703.00 28 CASSA/202/8 15.07.94 Rs.703.00 29 CASSA/202/8 15.07.94 Rs.703.00 30 CASSA/202/LTC- 20.09.94 Rs.2,498.00 OFFS 31 CASSA/202/8 19.10.94 Rs.3,873.00 32 CASSA/202/LTC/GO 19.10.94 Rs.9,994.00 33 CASSA/114/1 19.10.94 Rs.1,685.00 34 CASSA/202/2/LTC 21.10.94 Rs.2,123.00 35 CASSA/202/LTC/NGO 10.11.94 Rs.836.00 36 CASSA/202/8 23.12.94 Rs.1,133.00 13 37 CASSA/202/LTC/GOs 26.12.94 Rs.4,215.00 38 CASSA/202/LTC/GOs 26.12.94 Rs.8,740.00 39 CASSA/202/1 29.12.94 Rs.24,814.00 Rs.1,31,997.00

19. In Spl.C.C.No.134/1999, the accused is alleged to have misappropriated a sum of Rs.1,01,379/- during the period between 09.01.1995 to 24.08.1995 the details of which are as follows:

1 CASSA/202/8 09.01.95 Rs.1,610.00 2 CASSA/202/8 09.01.95 Rs.1,610.00 3 CASSA/202/LTC/GOs 24.01.95 Rs.6,512.00 4 CASSA/202/LTC/GOs 15.02.95 Rs.6,274.00 5 CASSA/202/2 21.03.95 Rs.8,100.00 6 CASSA/202/8 09.02.95 Rs.5,386.00 7 CASSA/202/8 25.05.95 Rs.1,776.00 8 CASSA/202/8 25.05.95 Rs.3,560.00 9 CASSA/202/8 25.05.95 Rs.1,644.00 10 CASSA/202/LTC/GOs 12.06.95 Rs.7,190.00 11 CASSA/202/2 12.06.95 Rs.3,600.00 12 CASSA/202/8 27.06.95 Rs.4,540.00 13 CASSA/202/LTC/GOs 05.07.95 Rs.3,330.00 14 CASSA/202/1 14.07.95 Rs.9,669.00 15 CASSA/202/8 08.08.95 Rs.3,796.00 16 CASSA/202/1 08.08.95 Rs.6,532.00 17 CASSA/202/1 08.08.95 Rs.1,250.00 18 CASSA/202/1/fIN/UPS 24.08.95 Rs.2,500.00 Rs.1,01,379.00 14

20. It is the case of prosecution that after the excess T.A. and D.A. was paid to the accused (cashier), he used to make entries in the cash register and he was issuing receipts under IAFA 179 Form to the remitters (the officials who had been sent to various assignments from CASSA) In the normal course, the accused used to prepare MROs in quadruplicate and after getting signatures from the concerned officials of CASSA he used to remit the amount to the account of CASSA maintained with State Bank of India, HAL Branch. The concerned cashier/official of the bank on receipt of MROs and cash used to acknowledge the payment of amount by affixing his signature and seal of the bank on MROs in quadruplicate. Two copies of MROs were being returned to the accused (cashier of CASSA) and two copies were being retained by the bank. The accused used to send one of the copies of MROs to CDA along with the bill of concerned remitter (official of CASSA). The bank was retaining one copy of MRO and used to send another copy to CDA. The CDA used to finalise the bill on receipt of the copy 15 of MRO from CASSA and corresponding/co-related copy of MRO from the bank (State Bank of India, HAL Branch).

21. During the aforestated periods, the accused after collecting money (remittances) from the officials of CASSA who had drawn advance as T.A. and D.A. had made false entries in the cash register. The accused after obtaining signatures on MROs in Quadruplicate did not remit the amount to the bank. On the other hand, he had affixed forged seal of the bank and he had forged the signature of cashier of the bank to make it appear the amount had been remitted to the bank. The accused had destroyed two copies of MROs. The accused had sent one copy of the MRO to CDA and had retained one of the copy with CASSA to make it appear that amount stated in the MRO had been remitted to the bank.

The concerned officials of CDA at New Delhi found that they had received the copy of MRO from CASSA however, they had not received the co-related copy of MRO from State 16 Bank of India, HAL Branch. Therefore, an internal enquiry was held and it was found that the accused by misusing his official position as a Cashier of CASSA had fabricated and forged the documents and falsified the entries in the cash book and forged the seal of the bank and the signature of the bank official (cashier) on MROs to make it appear that he had remitted the amount to bank. After the internal enquiry, first information was lodged with CBI. After the investigation, final report was filed.

22. As already stated, the accused is alleged to have committed similar offences during different periods of time. The evidence adduced by prosecution (oral and documentary) is common but for the fact it relates to different periods of time. The evidence adduced by prosecution in relation to sanction accorded to prosecute the accused and duties entrusted to the accused is also common.

17

After separate charges were framed in the aforestated cases, the learned counsel for accused in aforestated cases made an application on 09.02.2004 to record common evidence in Spl.C.C.Nos.130/1999 to 134/1999 on the ground that charges levelled against accused are similar but the offences are alleged to have been committed during different periods. The learned Public Prosecutor did not oppose the application. Therefore, common evidence was recorded in the aforestated cases and the aforestated cases were decided by the impugned common judgment.

23. Sri.B.C.Mddappa, learned counsel for appellant- accused relying on the judgment reported in AIR 1952 BOMBAY 177 (in the case of D.K.CHANDRA -vs- THE STATE) would submit that the trial court has committed grave error in holding joint trial and there is misjoinder of charges and trial.

24. In my considered opinion, this submission is not tenable. It is not a situation where common charges were 18 framed against the accused for different offences committed during different periods. The investigation Officer had filed separate final reports. The trial court had framed separate charges in each of the aforestated cases, however, when the cases came up for trial, it is the learned counsel for accused who made an application to record common evidence and decide the cases by a common judgment on the ground that charges framed against the accused relates to different periods and offences alleged to have been committed by the accused are of similar nature and common evidence will help both the parties. Therefore, it is not possible to hold that there was misjoinder of charges and trial.

Under Section 465 Cr.P.C., the finding or sentence or order shall not be reversed or altered in an appeal on the ground of error, omission, irregularity in holding the trial. The object is to see that offences of different nature committed during different point of time on the basis of distinct evidence shall not be tried together. 19

25. In the case on hand, common evidence was recorded in pursuance of the application filed by the learned counsel for accused that offences committed by the accused are of similar nature and they relate to different period of time, the evidence adduced by the prosecution (oral and documentary) is common. The prosecution has relied on common evidence to prove sanction accorded to prosecute the accused. In the circumstances, the common evidence recorded by the trial court and the common judgment rendered by the trial court in the aforestaed cases has not caused prejudice to the accused. It is neither an irregularity nor an illegality.

26. In the discussion made supra, I have narrated the case of prosecution and offences for which he was tried. In my considered opinion, bereft of details of dates and amount misappropriated, the following points would arise for determination:

1) Whether the prosecution has proved the sanction accorded to prosecute the accused as per Ex.P185 is valid ?
20
2) Whether the prosecution has proved that accused being the cashier (Upper Division Clerk) of CASSA committed criminal misconduct by dishonestly misusing the Government funds (funds of CASSA) of Rs.64,333/-, Rs.1,01,749/-, Rs.1,31,997/-, Rs.1,01,379/- during the period between 22.06.1992 and 14.12.1992, during the period between 06.04.1993 to 12.12.1993, during the period from 21.01.1994 to 29.12.1994 and during the period from 09.01.1995 to 24.08.1995 respectively, thereby committed offences punishable under Sections 13 (2) r/w 13 (1) (c) of the Prevention of Corruption Act, 1988 ?

3) Whether the prosecution has proved that accused with an intention to misappropriate the aforestated amount (amount stated in point no.2) fraudulently got prepared the rubber stamp seal of State Bank of India, HAL Branch with the words "cash received" 21

with an intention to forge the entries in MROs of CASSA and thereby committed an offence punishable under Section 472 IPC ?
4) Whether the prosecution has proved that during the period stated in point no.2, the accused had misappropriated the money entrusted to him after affixing the forged seal of State Bank of India, HAL Branch and forging the signature of the concerned official/cashier of State Bank of India, HAL Branch on the aforestated MROs and thereby committed an offence punishable under Section 467 IPC ?
5) Whether the prosecution has proved that accused after affixing the forged seal of the bank on the MROs and after forging the signatures of the concerned official/cashier of State Bank of India, HAL Branch on the aforestated MROs misappropriated the amounts during the periods mentioned in point no.2, thereby 22 committed an offence punishable under Section 409 IPC ?
6) Whether the prosecution has proved that accused with an intention to conceal the forgery and misappropriation of funds has dishonestly used the forged MROs and forwarded the forged MROs to the Controller of Accounts (CDA) through the concerned officials of CASSA and thereby committed an offence punishable under Section 471 IPC ?
7) Whether the prosecution has proved that accused in order to misappropriate the funds of CASSA in relation to MROs as detailed supra suppressed the misappropriation committed by him and falsified the books of accounts of CASSA by altering various entries pertaining to the transactions and thereby committed an offence punishable under Section 477-A IPC ?
23
8) Whether the prosecution has proved that accused after misappropriating the funds of CASSA as aforestated, in order to conceal the evidence of forgery and misappropriation committed by him, caused disappearance of evidence by destroying two out of four copies of aforestated MROs and also destroyed fake rubber stamp seal used by him to forge aforestated MROs and thereby committed an offence punishable under Section 201 IPC?
9) Whether the trial judge has properly appreciated the evidence on record ?
10) What Order ?

27. Sri.B.C.Muddappa, learned counsel for accused would submit that sanction order as per Ex.P185 was accorded by PW.7. As per the evidence adduced by prosecution and documents relied upon by the prosecution, PW.7 was interested in success of the case of prosecution therefore, sanction order is biased. In other words, the sanction to 24 prosecute the accused in terms of Ex.P185 is not free from bias.

28. The learned counsel for accused has placed reliance on Rule 12 (2) of the Central Civil Services and Classification and Control and Appeal Rules, 1965. The said provision reads thus:

"When the competent authority is unable to function as the disciplinary authority in case the prescribed appointing authority or disciplinary authority is unable to function as the Disciplinary Authority in respect of an official, on amount of his being personally concerned with the charges or being a material witness in support of the charges, the proper course for that authority is to refer such a case go to Government in the normal manner for nomination of an adhoc disciplinary authority by a Presidential order under the provision of Rule 12(2) of CCS (CCA) Rules 1965."

29. As per Rule 12 (2) of the Central Civil Services and Classification and Control and Appeal Rules, 1965, if the competent authority is unable to function as Disciplinary 25 Authority in respect of an official on account of his being personally concerned with the charges or being a material witness in support of the charges, the proper course for the authority is to refer such a case to the Government in the normal manner for nomination of adhoc Disciplinary Authority by a Presidential order under the provision of Rule 12 (2) of CCS (CCA) Rules, 1965. However, this rule does not preclude the examination of the sanctioning authority as a witness for the prosecution.

30. During 1996, PW.7-Dr.N.K.Srinivasan was working as the Director of CASSA at Bangalore. At the relevant time, the accused was working as UDC and Cashier in CASSA. PW.7 filed a complaint against the accused before CBI on the information received from the Controller of Defence Accounts (CDA) by PW.7 stating that embezzlement has taken place in respect of deposit of amount under MROs to the account of CASSA maintained with State Bank of India, HAL Branch. After investigation, the investigation records and evidence 26 collected against the accused were placed before PW.7 who on careful analysis has accorded sanction to prosecute the accused in terms of Ex.P185. In the circumstances, it is not possible to hold that PW.7 was interested in the success of the case of prosecution. He had lodged the first information on the basis of report received by him from the Controller of Defence Accounts (CDA).

PW.7 on careful consideration of documents and evidence collected during investigation has accorded sanction to the prosecution to prosecute the accused. Therefore, it is not possible to hold that sanction accorded to prosecute the accused or sanction accorded by PW.7 was biased because PW.7 had set the law into motion and he had appeared as a witness for the prosecution.

There is no merit in the submission of learned counsel for accused that sanction accorded as per Ex.P185 by PW.7 is vitiated on the ground of bias and PW7 had accorded sanction without application of mind. Therefore, I answer point no.1 in the affirmative.

27

31. In order to prove point nos.2 to 8, the prosecution has relied on oral evidence of officials of CASSA and corresponding documentary evidence. The prosecution has also relied on the evidence of bank officials and corresponding documentary evidence. The prosecution has placed reliance on the expert opinion.

32. The resume of witnesses examined by the prosecution is as follows:

PW.1-Abdul Samad, PW.5-S.Dheerendra, PW.10- Krishna Prasad, PW.11-Lalitha, PW.12-S.V.Prabhakar, PW.13-Yogitha Thengall, PW.14-Peethambaran, PW.15- B.Ranganathan are the officials who held different posts in State Bank of India, HAL Branch with which CASSA had maintained its account.
PW.2-Hari Narayana, PW.3-Y.N.Rajanna, PW.4- Dr.A.M.Nageswar Yogi, PW.6-Smt.Balwinder Kaur, PW.7- Dr.N.K.Preenivagan, PW.8-Prasad Samuel, PW.9-Jaya 28 Krishna, PW.17-Smt.Srilakshmi Harish, PW.18-R.Natarajan, PW.19-B.P.Narasimhachar, PW.20-H.V.Srinivasa Rao were holding different posts in CASSA and CDA.
PW.22-B.Suresh Kumar was the investigation officer and PW.23-D.D.Goel was the Handwriting Expert who had given opinion regarding sample seal impressions of the bank found on MROs. PW22 had also furnished opinion on the disputed signatures of accused. On comparison of the sample seal collected during investigation and seals (impression) found on the questioned MROs he had given his opinion. He had compared the admitted handwriting of accused with questioned handwriting found in MROs to furnish his opinion.

33. Now adverting to evidence adduced by the prosecution, the officials of bank have given consistent evidence that amount shown in the forged MROs was not remitted to the bank. They have deposed that in cash receipt scrolls 29 maintained by the Bank, there were no corresponding entries of amount alleged to have been remitted to the account of CASSA.

34. Sri.B.C.Muddappa, learned counsel for accused has contended that prosecution has not placed credible evidence to prove entrustment of work of cashier to the accused. In other words, the prosecution has failed to prove the entrustment of property and domain over the property which is a sine qua non to prove an offence punishable under Section 409 IPC. This contention is contrary to the documentary evidence on record.

As already stated, the accused who was working as an Upper Division Clerk (UDC) was entrusted with the duties of Cashier with effect from 09.07.1986 and he was granted Special Pay of Rs.40/- per month. This order (Ex.P.200) was passed by the then Administrative Officer on behalf of the Director. Ex.P.200 had come into existence at an undisputed point of time viz on 09.07.1986, when the accused was 30 directed to perform the duties of Cashier with Special Pay of Rs.40/- per month, none had anticipated that there would be embezzlement of funds in the year 1991.

35. PW.19-B.P.Narasimhachar, has deposed; that during the year 1982-93 he had worked as Senior Administrative Officer of CASSA at Bangalore. He has deposed that in terms of letter No.26104/Cashiers/ RD-24/ 3365/D (R&D) dated 28.07.1984, the Lower Division Clerks (LDC) and Upper Division Clerks (UDC) could be posted as Cashiers. In terms of the aforestated letter issued by the Government of India, the accused was placed in-charge of Cashier as per order dated 09.07.1986 (Ex.P200) on Special Pay of Rs.40/- per month. The accused was entrusted with the duties of cashier. PW19 has deposed that accused used to go to State Bank of India, HAL Branch to make remittance. PW19 has deposed that before going to bank, the accused used to prepare MROs in Quadruplicate and the Senior Administrative Officer used to sign the MROs as payee. The 31 accused after remittance of amount to the bank used to produce the MROs in duplicate before the Senior Administrative Officer. The relevant entries regarding remittance of amount through MROs were being made in the Cash Book and the originals of MROs were being forwarded to the Controller of Accounts (CDA) at New Delhi for further action. The accused used to retain a copy of MRO for reference in CASSA.

36. During cross-examination of PW19, accused has not denied the contents of the order as per Ex.P200, under which, accused was entrusted to perform duties of cashier with effect from 09.07.1986 on special pay of Rs.40/- per month. During cross-examination of PW-19, accused has not disputed the procedure for remittance of amount through MROs.

PW19 has given some details of remittance. PW-19 has deposed that MRO dated 12.02.1992 (Ex.P1) for a sum of Rs.25,000/- bears his signature as per Ex.P1(b). Ex.P107 is 32 the cash book. As per the entry in the cash book, on 03.08.1992, accused had received a sum of Rs.25,000/- from one V.S.Ramaswamy on account of bond executed by one Smt.Kalavathi. The said entry is marked as Ex.P107(a). The amount is shown to have been remitted under MRO (Ex.P1) dated 12.08.1992. The entries at Ex.P107(a) and Ex.P107(b) are in the handwriting of accused.

PW-19 has given evidence with reference to Ex.P3 MRO for Rs.1,221/- dated 12.08.1992. He has given the evidence with reference to Ex.P4. PW19 has deposed that Ex.P8 is the MRO prepared by the accused. He has also given evidence relating to the attendance registers of staff of CASSA. During cross-examination, it has been suggested to PW-19 that they used to deposit the amount through cheques. PW19 has deposed, if the amount is deposited in cash, the receipt would be issued by SBI then and there. PW-19 has deposed that CASSA was a small establishment. There was shortage of manpower, he used to send the remittances in cash in order to avoid cashier (accused) 33 visiting State Bank of India for more than two or three occasions same day. PW19 has specifically deposed, that remittances were made only in cash.

During cross-examination of PW-19, an attempt has been made to prove that the MROs prepared and brought back by the accused from the bank were duly stamped and signed by the official/cashier of the bank. PW19 has deposed that MROs were later found to be forged one. Thus, from the evidence of PW-19, the prosecution has proved that the accused was entrusted with the duties of cashier under office order as per Ex.P200 with effect from 09.07.1986 and he had been granted Special pay of Rs.40/- per month. Accused used to remit the cash through MRO to the State Bank of India, HAL Branch, Bangalore and he used to bring back the MROs, which was acknowledged by the concerned official of the bank by putting his signature and affixing the seal of the bank. PW-19 has deposed that the amount under Ex.P1 was not remitted to the bank. There was no corresponding entry in the cash receipt scroll of the bank. 34 The seal and signature affixed to Ex.P1 are not the seal and signature affixed by the concerned official/cashier of the bank. PW19 has deposed that the seals put by the bank were trilingual. However, impression of seal found on Ex.P1 is monolingual (only in English language).

37. On careful examination of Ex.P1, I find that the seal affixed on Ex.P1 is in monolingual. In other words, the contents of impression of seal are in English language. The hand writing expert namely, PW-23, on comparison of the seal found on Ex.P1 and the specimen seal obtained during investigation, has opined that the seal on Ex.P1 is a forged seal and it is not the seal maintained by the bank.

38. At the relevant time, PW-1-Abdul Samad was working as a cashier in State Bank of India, HAL branch, Bangalore. PW1 referring to the contents of Ex.P1 has deposed that the seal found on Ex.P1 is a forged one. PW1 has deposed that the contents of Cash Receipt Scroll (Ex.P5) would reveal that on 12.08.1992, a sum of Rs.25,000/- was not remitted to the 35 bank. Thus, from the evidence of PW-19, PW-1 and PW-23, the prosecution has proved that the accused having received a sum of Rs.25,000/- on 12.08.1992, had prepared the MROs in quadruplicate and got them countersigned by the concerned official. The accused did not remit the amount to the bank, HAL Branch, Bangalore. On the other hand, he had affixed forged seal on Ex.P1 and forged the signature of the concerned official of the bank to make it appears that he had remitted a sum of Rs.25,000/- with State Bank of India on 12.08.1992.

39. The prosecution has not adduced evidence in relation to Military Receipt Orders bearing CASSA/151/1 dated 22.06.1992 for Rs.3,553/- and similarly, MRO bearing No.CASSA/151/1 dated 22.09.1992 for Rs.24,200/- and MRO bearing No.CASSA/151/1 dated 14.12.1992 for a sum of Rs.11,580/-. The trial court on careful consideration of the evidence has held that the primary evidence (MROs) relating to these amounts has not been produced by the prosecution. However, in relation to Ex.P1, the prosecution 36 has proved beyond reasonable doubt that accused having received sum of Rs.25,000/- had made entries in the cash register. The accused did not remit the amount to the bank. The accused in order to suppress the mischief and misappropriation committed by him, affixed the forged seal and forged signature of the concerned bank official on the MRO-Ex.P1. Therefore, learned trial Judge has rightly held that prosecution has proved the charges against accused in relation to MRO (Ex.P.1) for a sum of Rs.25,000/-.

40. Sri.B.C.Muddappa, learned counsel for accused would submit that prosecution has not placed necessary evidence to prove that accused himself was carrying cash for remittance to the bank. The prosecution has relied on the opinion of the Hand writing expert to come to the conclusion that the signature found on Ex.P1 is in the hand writing of the accused. The learned counsel would submit that learned trial Judge should not have recorded conviction on the basis of the evidence of handwriting expert only. The learned 37 counsel for accused has not examined the hand writing expert, who had furnished the opinion.

41. The learned counsel for CBI would justify the findings of the trial court. The learned counsel for CBI would submit that the prosecution adduced evidence to prove that the accused was physically carrying cash for remittance to the bank and none else was engaged or involved for that purpose. The prosecution has proved that accused was the cashier and he was entrusted with the duties of cashier and he had domain over properties and funds of CASSA. In the circumstances, accused should have offered explanation how the things had gone wrong.

42. In the discussion made supra, I have held that prosecution has proved that accused was entrusted with the duties of cashier with effect from 09.07.1986 in terms of the order (Ex.P200) passed by the Administrative Officer. Accused has not disputed the contents of Ex.P200. 38

43. The prosecution has examined PW-8 Prasad Samuel, Security Assistant and PW-9 Jayakrishna, driver of CASSA. PW-8 Prasad Samuel has deposed that from February 1990 to December, 2003, he was working as Security Assistant. At the relevant time, accused was working as a cashier and he used to deal cash transaction and cash payments, preparation of bills and correspondence with the Central Defence Account at New Delhi. Accused used to receive the money and used to remit the same to the bank. Accused used to go to the bank in the office car or motorcycle. PW-8 is acquainted with the hand writing of accused. PW-8 has identified the hand writing of the accused on Ex.P107 and Ex.P108. PW-8 has deposed that contents of Ex.P.107 and P.108 are in the hand writing of accused. PW8 has deposed about the contents of Attendance Register for the year 1991 as per Ex.186, attendance register as per Ex.P187 for the year 1992, attendance register as per Ex.P188 for the year 1993, and attendance registers as per Exs.P104 and P105 for the year 1994 and 1995. PW8 has deposed that the 39 accused whenever used to attend the office was marking his attendance in the attendance registers. Accused used to forward MROs to the Control of the Defence Account. Ex.P106 is one of covering letter which was forwarded to the CDA for having sent the MROs.

During cross-examination, it was suggested to PW-8, whenever the accused was on leave or absent, a suitable official of CASSA was deputed by SIO for bank transactions. PW8 has denied the suggestion that he had not accompanied the accused to the bank for remittance of money through MROs. PW8 has denied the suggestion that he was not acquainted with the hand writing of accused.

44. On appreciation of evidence of PW-8, we find that accused used to deal with the cash transactions. It has been specifically proved from the evidence of PW-8 that the accused was visiting the bank to remit cash. It has been suggested to PW-8, whenever the accused was on leave or remained absent, some other official of CASSA was deputed 40 for remittance of money to the bank. PW-8 has given evidence with reference to attendance registers maintained by CASSA. It is not the case of the accused that he was absent on the relevant dates. The accused has not demonstrated from the attendance registers that he was on leave or absent on relevant dates of alleged remittance.

45. PW-9 Jayakumar was working as a driver in CASSA from the year 1983. PW9 has deposed that he was taking the accused in a car of CASSA for remittance of cash to SBI, HAL Branch, Bangalore, and he used to bring him back in the same vehicle. During cross-examination, he has deposed that apart from the accused, he had not taken other persons for the purpose of remittance of cash to the bank. There are no reasons to discard the evidence of PW-9. It has not been suggested to PW-9 that the accused had not travelled in the car of CASSA driven by PW-9 for remittance of cash to the bank.

41

46. The evidence of these two witnesses is sufficient to hold that prosecution has proved that accused was going to the bank to remit cash. In the circumstances, the learned Special Judge was justified in holding that prosecution has proved the charges against the accused in Spl.C.C.No.131/1999.

47. In Spl.C.C.No.132/1999, accused is alleged to have committed misappropriation of sum of Rs.1,01,749/- during the period from 06.04.1993 to 20.12.1993. The relevant MROs and the corresponding amount have been extracted supra (Paragraph 17).

48. PW4-Dr.A.M.Nageshwar Yogi had worked as a Scientist of CASSA. After the retirement of one B.P.Narasimhamurthy as Senior Administrative Officer during 1992-93, PW4 was placed as an incharge of Senior Administrative Officer. PW-4 Nageshwar Yogi has given evidence in proof of nature of duties performed by the accused and normal practice of remittance of funds of 42 CASSA through MROs by the accused. PW-4 has given evidence relating to the fabrication and forgery of MROs marked as Ex.P110, Ex.P111 dated 05.08.1993, Ex.P112 dated 18.10.1993, Ex.P113 dated 26.11.1993, Ex.P114 dated 28.10.1993, Ex.P115 dated 19.11.1993, Ex.P116 dated 19.11.1993, Ex.P117 dated 3.12.1993, Ex.P118 dated 20.12.1993, Ex.P122 dated 18.10.1993, Ex.P123 dated 26.11.1993. PW-4 has also deposed regarding the contents of MROs marked as Ex.P259 dated 27.01.1994, Ex.P260 dated 18.10.1993, Ex.P261 dated 28.10.1993, Ex.P262 dated 10.11.1993, Ex.P263 dated 18.11.1993, Ex.P264 dated 03.12.1993.

PW-4 has deposed that accused had received cash to remit the cash under the aforestated MROs but he had not remitted the cash. On the other hand, accused had affixed the forged rubber stamp seal on the MROs and he had forged signatures of the concerned cashier/official of the bank to make it appear that he had remitted cash to the bank under the aforestated MROs. Accused had destroyed two copies of 43 the MROs. Accused had made entries in the cash book before remittance to the bank. However, he had not remitted the cash instead, he had misappropriated the same.

During cross-examination of PW-4, it has been suggested to him that amount (cash collected from the officials) was being kept in cash chest. PW-4 has denied the suggestion. PW4 has deposed; they used to remit the cash to the bank on the same day; in case of holidays or receipt of cash after closure of the bank, they used to keep the amount in the cash chest till the next working day. In my considered opinion, cross-examination of PW-4 on this aspect has no bearing.

It is the specific case of the prosecution that accused had forged the MROs by affixing the rubber stamp seal and by forging the signatures of concerned cashier/officials of the bank, without remitting the cash to the bank. In other words, he had retained MROs in his custody and they are forged documents. The seal of the Bank, signatures of the bank cashier/officials of the bank were forged on the MRO to 44 make it appear that accused had sincerely discharged his duties by remitting cash to the Bank. Therefore, evidence of PW-4, that they used to keep the cash in chest till it was remitted to the bank, does not bear any relevance. At this juncture, it is necessary to state that evidence of PW-4 that the aforestated MROs were forged by the accused and there were no corresponding entries in the cash receipt scroll maintained by the bank, has not been controverted.

PW-4 has given evidence in proof of forgery of MROs relating to the period between 27.01.1994 and 29.12.1994. The charges in Spl.C.C.No.133/99 were framed in relation to these transactions. PW-4 has given evidence in proof of MROs for the period between 10.11.1993, 27.1.1993, 26.11.1993. PW-4 has deposed regarding the covering letters addressed to CDA on 06.12.1993, 30.11.1993, 02.12.1993, 18.11.1993, 09.11.1993, 26.10.1993, 18.10.1993, 19.10.1993, 27.09.1993, 30.07.1993, 29.12.1994 and 30.12.1994. He has identified the signature of the accused 45 on these letters. He has also given the context under which these letters were addressed to CDA.

During cross-examination, PW-4 has admitted, before detection of these cases, there was no suspicion on the work of the accused. Accused was one of the efficient worker of the office and he had good regard towards the officials.

49. The learned counsel for accused relying on the evidence of PW-4 that the accused was one of the efficient worker of the office and he had good regard towards officials, would submit that accused had maintained good conduct and integrity and he has been falsely implicated.

50. It is true that the good character and general disposition of the accused is relevant to the criminal proceedings. However, that cannot outweigh the evidence of prosecution if it is proved trustworthy and credible.

51. In a decision reported in AIR 1965 SC 682 (In the case of Bhagawan Swarup v. State of Maharastra), the Supreme Court has held thus:-

46

"The evidence of general reputation and general disposition is relevant in a criminal proceeding. Under the Indian Evidence Act, unlike in England, evidence can be given both of general character and general disposition. Disposition means the inherent qualities of a person; reputation means the general credit of the person amongst the public. There is a real distinction between reputation and disposition. A man may be reputed to be a good man, but in reality, he may have a bad disposition. The value of evidence as regards disposition of a person depends not only upon the witnesses perspicacity but also on their opportunities to observe a person as well as the person's cleverness to hide his real traits. But a disposition of a man may be made up of many traits, some good and some bad, and only evidence in regard to a particular trait with which the witness is familiar would be of some use. But, in any case, the character evidence is a very weak evidence; it cannot outweigh the positive evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of the accused or it may 47 also afford a background for appreciating his reactions in a given situation. It must give place to acceptable positive evidence".

52. In view of what has been held in the aforestated judgment, it can safely be held that the evidence of conduct and character of the accused would be more use, if the evidence adduced by the prosecution is very weak. It cannot outweigh the positive evidence in regard to the guilt of the accused. It may be useful to the accused in doubtful cases. Therefore, the submission of learned counsel for the accused cannot be accepted.

53. PW-5 S.Dheerendra has deposed that from 1995 to February 1998, he was working as the Chief Manager in SBI, HAL Branch, Bangalore. During investigation, he had given specimen signatures for comparison of signatures found on the MROs as per Exs.P2(a) and (b). He has deposed that the cashier's scrolls marked as Ex.P132 to Ex.P166 starting from 20.01.1994 till 24.08.1995 (in between certain dates are 48 skipped of), do not reveal that the remittance of cash to the bank as mentioned in MROs marked as Exs.P6, P7, P10 and P103. The seals put on MROs marked as Exs.P6, P7, P10 and P103, are not the seals of the bank and the amount stated in MROs (Ex.P6, Ex.P7 Ex.P10 & Ex.P103) had not been received in the bank. He has given evidence with reference to the MRO dated 27.09.1993 as per Ex.P167, wherein, it is shown that sum of Rs.17,600/- in respect of one Smt.S.Vimala was not remitted on 27.09.1993. The cashier's receipt scroll relating to dated 27.09.1993 is marked as Ex.P167. The amount mentioned in MRO as per Ex.P168 is not found in the cashier's receipt scroll as per Ex.P167.

54. PW-5 has deposed that Exs.P169 to Ex.P179 are the cashier's receipt scrolls relating to 03.07.1993, 05.08.1993, 18.10.1993, 28.10.1993, 10.11.1993, 26.11.1993, 18.11.1993, 03.12.1993, 20.12.1993, 27.01.1994 and 29.12.1994. PW5 has deposed that the MRO dated 06.04.1993 in respect of M/s.Wipro Infotech Pvt.Ltd., for a 49 sum of Rs.50,000/- is not received in the bank under MRO marked as Ex.P180. The seal put on Ex.P180 is not the seal of the bank and it is a forged seal.

During cross-examination, PW5 has deposed that the seal impression found on the MROs and the seal impression of the bank are distinct. The forged seal impression put on the MROs are monolingual, whereas the seals maintained by the bank are bilingual and trilingual. He has also deposed that the forged seal impression found on MROs, the words 'STATE BANK OF INDIA' are slanted, whereas, the seal impression affixed by using the rubber stamp seal of the bank, the words 'STATE BANK OF INDIA' are vertical. PW5 has denied the suggestion that on persuasion of the officials of the CASSA, he had not given information to the accused. PW5 has denied the suggestion, the cashier of the bank was also involved in the fraud. At this juncture, it is necessary to state that the other officials and clerks of the bank namely, PW-10 Krishna Prasad, PW-11 Lalitha K, PW-12 S.V.Prabhakar, PW-13 Yogitha Mallaicha, PW-14 50 Preethambakar and PW-15 B.Ranganathan, have given evidence with reference to the various MROs and they have categorically deposed that the amount mentioned in various MROs were not remitted to the bank and the seals found on the MROs are forged seals and they have also denied the signatures found therein.

It has been consistently suggested to these witnesses;- that they have forged the signatures and the seals on the MROs to misappropriate the amount. In other words, misappropriation of the amount under the MROs had taken place at the receiving end. The concerned cashiers/officials of the bank having received the money remitted under the MROs had not entered the same into the cashiers' receipt scrolls maintained by the bank. They had forged the MROs by using fake rubber stamp seal and forging the signatures on MROs. In order to cover up the misappropriation and forgery committed by these bank officials, they had connived with the officials of CASSA to throw blame on the accused. 51

55. In my considered opinion, the defence of the accused is farfetched. In order to accept the defence theory, this court has to believe that officials of the bank who had worked as cashiers during different periods, had committed forgery and misappropriation of funds whenever they succeeded to the office. In other words, the cashier who was holding the post at the earliest point of time, on his transfer or change of work, used to hand over the forged seal and instruct his successor to put the forged seals on MROs and forge the signatures to misappropriate the money. They were deliberately omitting the entries in cashiers receipt scroll.

It is hardly possible to accept that the bank officials (cashiers) were involved in commission of forgery and misappropriation and they were omitting to make entries in the cashiers receipt scrolls. At this juncture, it is relevant to state, in a Bank at the end of transaction of the bank for the day, cashier would be relieved from his duties only after the remittance by the customers and withdrawals from the customers tally with the cashiers' scroll and withdrawal's 52 scroll. Therefore, this defence is a deliberate attempt made by the accused to throw blame on the bank officials.

56. In Spl.C.C.No.134/99, accused is alleged to have committed misappropriation of a sum of Rs.1,01,379/- during the period from 09.01.1995 and 24.08.1995 by forging the MROs. The details of the MROs and corresponding dates are stated supra (in paragraph 19). The MROs tendered in evidence relating to this case are marked as Exs.P68, P69, P70 and P71. The signatures and the seals found therein are forged. These facts are proved from the evidence of officials of the bank and officials of CASSA. The Handwriting Expert on comparison of forged signatures and seals found on these MROs with the admitted signatures of the accused and admitted seals of the bank, has opined that the seal affixed on MROs Exs.P68, P69, P70 and P71 are forged seals and the signatures found therein are forged signatures and they are the signatures of the accused. 53

57. Sri.B.C.Muddappa, learned counsel for the accused would submit that the Special court should not have recorded the conviction only on the basis of opinion of the hand writing expert namely PW-23 D.D.Goel.

58. It is seen from the evidence adduced by the prosecution that the officials who are working with the accused have identified the signatures and hand writing of the accused on these documents. Under Section 47 of the Evidence Act, when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the hand writing of the person by him it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

59. The prosecution has examined officials of the CASSA who were working with the accused and who were familiar with the hand writing of the accused. They have identified the hand writing of the accused on the disputed documents 54 and therefore, it is not the situation where the proof of forgery committed by the accused entirely rests upon the opinion of the handwriting expert. On careful comparison of the seal impressions of the bank, and the seal impressions found on the forged MROs, we find several distinguished features between the two. The distinguished features being;- the seal impressions of the bank are bilingual or trilingual. In some of the seals, the contents of the seals are found in three languages namely, Kannada, English and Hindi. However, the seals found on the disputed MROs are monolingual. Added to this, the words under the capital letters 'STATE BANK OF INDIA' are rather slanted in the seal impression found on the disputed MRO (Ex.P.126). In the admitted seal impressions furnished by the bank, the words 'STATE BANK OF INDIA' are perpendicular. In the seals maintained by the bank, the word 'Branch' is used in its abbreviated form 'Br'. In the disputed MROs the entire word 'Branch' is found. The admitted seals maintained by the bank and acknowledgment of the cash is found by the words 55 '£ÀUz À ÀÄ ¹éÃPÀj¹zÉ'. However, in the seals found on the MROs, the receipt of cash is indicated by the words "cash received"

(in English language). The words indicating the name of Branch (HAL branch) are found in capital letters of larger dimensions. In the seals found on disputed MROs the words indicating the name of the Branch are of smaller dimension.
The handwriting expert on careful comparison and analysis of these features, has opined that the seals obtained on the disputed documents (MROs) are the forged seals. Therefore, it can safely be held that the accused had forged aforestated MROs by affixing forged seals.

60. In the discussion made supra, I have held the prosecution has proved entrustment of properties and funds of CASSA to the accused and that accused had domain over the properties and funds of CASSA. Therefore, accused is expected to offer plausible explanation. It is hardly possible to expect the prosecution to adduce direct evidence to prove misappropriation and forgery committed by accused. It is 56 needless to state that these acts are clandestine and they will be committed in secrecy. Therefore, the prosecution cannot be expected to prove these offence by adducing direct evidence. These clandestine and premeditated acts committed by the accused will have to be inferred from oral and documentary evidence and also from the conduct of accused. The accused has taken inconsistent and irrelevant stances. At one breathe, he would contend that he was not the cashier and there is no proof of entrustment. In the next breathe, he would content, there is no tangible evidence to prove he was going to the bank to remit the money. The accused has also contended that misappropriation of money was committed by the bank officials and they have forged the MROs by using forged seals and they have forged signatures and they have thrown blame on the accused. The accused has banked upon his past conduct.

61. In the discussion made supra, I have dealt with the contention of accused relating to past good conduct and character.

57

62. The conduct of the accused in denying the nature of work entrusted to him on the face of the order issued by the Senior Administrative Officer in terms of Ex.P200 would lend support to the case of the prosecution. The accused having accepted to discharge the duties of cashier on additional special pay of Rs.40/- per month would disown the nature of work entrusted to him. The accused expects the prosecution to prove each and every unreasonable doubt entertained by him. As already stated, offences of misappropriation, criminal breach of trust, forgery and falsification of records are all premeditated and clandestine activities. Accused would not commit such acts within the vision of public or witnesses. Therefore, these are the matters to be inferred from oral and documentary evidence adduced by the prosecution. There are no reasons to suspect the oral evidence. The oral evidence is supported by the documentary evidence. It may not be out of place to state that witnesses examined by prosecution had no grudge or grievance against accused.

58

63. The officials examined on behalf of the bank have categorically deposed that accused had not remitted the amounts stated under the aforestated MROs. They had not received money from the accused. They had produced the cash receipt scroll maintained in the bank to show that there was no remittance of the amounts on the afore-stated dates. They have deposed that the seals affixed on the disputed MROs are not the seals of the bank. They have deposed that they have not forged the seal impression by using forged rubber stamp seal. The accused had made an unsuccessful attempt to throw blame on these officials of the bank.

64. In the discussion made supra, I have assigned reasons for rejecting the defence put forth by the defence. The untenable defence taken by the accused would also provide a circumstance against him. Accused to whom the property was entrusted and who had domain over the property, instead of offering plausible explanation had made an 59 unsuccessful attempt to throw blame on the officials of the bank and CASSA.

65. The learned counsel for the accused referring to the evidence of handwriting expert (PW23) would submit that PW-23 had not examined the signatures and the seals. On the other hand, the comparison of the admitted and disputed seals was done by one Amar Singh. PW23 had not compared the disputed and admitted signatures, so also the admitted and disputed seals. Therefore, PW23-handwriting expert, was not competent to depose before the Court

66. From the contents of Ex.P297, opinion of the Hand writing expert and the letter dated 29.10.1998, we find that PW-23 was working as Govt. Examiner of Questioned Documents and said Amar Singh was working as Dy. Govt. Examiner of Questioned Documents, Hyderabad. The documents were examined and compared by PW23 and above said Amar Singh. Therefore, the submission of learned 60 counsel for accused that PW-23 was not competent to give his evidence, cannot be accepted.

67. The learned counsel for accused would submit that learned Special Judge has erroneously relied on extra judicial confession made by accused (Ex.P.204). The prosecution has suppressed the report submitted by internal inquiry authority, because other officials were also involved in these offences. The learned Special Judge should have extended benefit of reasonable doubt to accused.

68. The learned counsel for accused would submit that prosecution has failed to produce audit reports for the relevant years to prove that discrepancies had been noticed during audit for the relevant years.

69. It is true that learned Special Judge has placed reliance on Ex.P.204 to hold that accused had made extra judicial confession. It is true that prosecution has not produced report of preliminary inquiry authority. 61

70. PW20-H.V.Srinivasa Rao, the then Scientist of DRDO at Bangalore has deposed; Director of CASSA had directed to hold preliminary inquiry against allegations that there was some suspected misappropriation of amounts, which were supposed to have been remitted to bank through MROs. Therefore, a committee was constituted, consisting of PW20, Vijaykumar and Dr.K.Maheshwar Reddy to investigate into the matter; during investigation, accused gave voluntary statement; voluntary statement said to have been given by accused is marked as Ex.P.204.

71. Now, the question for consideration is:-

"Whether Ex.P.204, which is stated to have been made by accused before the members of committee constituted to investigate into misappropriation of amount could be termed as extra-judicial confession, within the meaning of section 24 of the Indian Evidence Act?"

72. Section 24 of the Indian Evidence Act, 1872 reads thus:-

62

"24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise 1[having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."

73. The law is fairly well settled that extra judicial confession is a weak piece of evidence. The accused is stated to have made extra judicial confession before the members of the committee constituted to investigate into misappropriation alleged to have been committed by accused. The accused is denied to have made extra judicial confession. This statement is alleged to have been made by 63 accused before the members of committee, which was constituted to investigate into misappropriation alleged to have been committed by accused. Therefore, there are reasons to believe that accused had made such a statement under supposition that he was making such statement by which he would gain advantage of temporary in nature. In the circumstances, reliance cannot be placed on Ex.P.204. The learned Special Judge should not have placed reliance on extra judicial confession. Even after excluding extra- judicial confession, we find that evidence (oral and documentary) adduced by the prosecution is consistent and credible to prove offences alleged against accused.

74. The discrepancies in accounts were not noticed during audit. The omission of auditor to notice discrepancies in accounts cannot be a ground to discredit evidence adduced by prosecution. The question before this court is whether prosecution has proved that accused has misappropriated amount as aforestated by adopting modus operandi discussed supra?

64

This court need not consider question as to how these discrepancies or misappropriation had not been noticed by auditors. It is probable that auditors after perusing M.R.O's bearing forged seal and signatures prima facie believed the documents to be genuine and they were not able to notice misappropriation and other offences committed by accused.

75. At the relevant time, PW2-Harinarayan was working as Senior Administrative Officer of CASSA. The evidence of PW2 relates to nature of work entrusted to accused. The evidence of PW2 relates to MROs referred to in Spl. C.C. No.133/1999 and Spl. C.C. No.134/1999; PW2 has deposed; accused was working as a Cashier in CASSA. PW2 was looking after administration, establishment, work services, stores and mechanical transport office; PW2 was also looking after finance, security and accounts; PW2 was drawing and disbursing officer of CASSA; PW2 was authorized to sign contingency bills, TA bills, LTC bills, Military Receivable Orders (MROs) and other financial documents; if any advances were given to officials for their tour or any other 65 miscellaneous expenses, whenever the officials had received excess amount, they used to pay the amount in cash to accused; accused was preparing receipts in Form No.IAFA 175 format; thereafter said amount was taken into cashbook; thereafter amount was credited to SBI, HAL Branch, through MROs, which were be prepared in quadruplicate (4 copies); PW2 used to sign MROs; accused (cashier) after remittance of amount would bring back two copies of MROs and two copies will be retained by bank. The money remitted under MRO to the cashier of bank was being acknowledged by affixing seal of receipt of bank and signature of the cashier; one copy of MRO would be sent to Controller of Defence Accounts by the bank and one copy would be retained by the bank; out of 2 copies received in CASSA; concerned official (cashier) will prepare adjustment bill and forward said bill with one copy of MRO to Controller of Defence accounts; Controller of Defence Accounts will conduct periodical audits; in one such audit, they had noticed money in respect of MROs received in their office 66 from CASSA had not been credited to their account by bankers; they had not received copies of MROs from the bank; in other words, they had received copies of MROs from CASSA but they had not received corresponding copies of MROs from the bank. When this discrepancy was noticed, Director of CASSA appointed one Srinivasa Rao to hold a domestic inquiry to find out whether alleged money had been remitted under MRO to bank or not; after investigation, Srinivasa Rao had given report; later, the matter was referred to CBI.

76. PW2 has deposed; MRO dated 20.01.1994 (Ex.P.6) is for a sum of Rs.2,000/-. This document bears his signature. The receipt of amount by accused vide Ex.P.6 is entered in cash book marked as Ex.P.8; entries in cash book are in the handwriting of accused; they are marked as Ex.P.8(a) & Ex.P.8(b); in Ex.P.9, there is no corresponding entry; subsequently it was noticed that amount under MRO (Ex.P.6) is not entered in the accounts of Controller of Defence. PW2 has given evidence in respect of MRO for a 67 sum of Rs.483/- dated 21.02.1994 (Ex.P.10). PW2 has deposed; Ex.P.12 under MRO dated 21.02.1994 which was prepared by accused; accused had obtained signature of PW2; accused had made entry in cash book (Ex.P.8) under Ex.P.12. PW2 has given evidence relating to MRO for a sum of Rs.1,430/- dated 23.02.1994 as per Ex.P.14 and non receipt of amount mentioned in Ex.P.13. PW2 has given evidence in relation to MRO pertaining to M.M.Vijaya Raghavan for a sum of Rs.4,600/- dated 21.03.1994, however, there is no carbon copy of receipt in Ex.P.9 for having received a sum of Rs.4,600/- from Vijaya Raghavan. These MROs are in the handwritings of accused. PW2 has given evidence in relation to MRO dated 25.03.1994 for a sum of Rs.11,521/-(Ex.P.18); MRO dated 25.03.1994 for a sum of Rs.2,540/- (Ex.P.20); MRO dated 24.05.1994 for a sum of Rs.2,002/- (Ex.P.22); MRO dated 01.06.1994 for a sum of Rs.2,515/- (Ex.P.24); MRO dated 01.06.1994 for a sum of Rs.1,142/- (Ex.P.26); MRO dated 15.06.1994 for a sum of Rs.5,560/- (Ex.P.28); MRO dated 06.07.1994 for a 68 sum of Rs.3,324/- (Ex.P.29); MRO dated 01.06.1994 for a sum of Rs.1,235/- (Ex.P.30); MRO dated 15.07.1994 for a sum of Rs.703/- (Ex.P.32); MRO dated 15.07.1994 for a sum of Rs.703/- (Ex.P.34); MRO dated 20.07.1994 for a sum of Rs.1,882/- (Ex.P.36); MRO dated 26.12.1994 for a sum of Rs.4,215/- (Ex.P.37); MRO dated 01.08.1994 for a sum of Rs.1,620/- (Ex.P.38); MRO dated 30.08.1994 for a sum of Rs.8,120/- (Ex.P.39); MRO dated 05.09.1994 for a sum of Rs.840/- (Ex.P.41); MRO dated 12.09.1994 for a sum of Rs.583/- (Ex.P.43); MRO dated 20.09.1994 for a sum of Rs.406/- (Ex.P.45); MRO dated 20.09.1994 for a sum of Rs.406/- (Ex.P.47); MRO dated 20.09.1994 for a sum of Rs.2,498/- (Ex.P.49); MRO dated 20.09.1994 for a sum of Rs.2,431/- (Ex.P.51); MRO dated 19.10.1994 for a sum of Rs.9,994/- (Ex.P.53); MRO dated 19.10.1994 for a sum of Rs.1,685/- (Ex.P.55); MRO dated 19.10.1994 for a sum of Rs.3,873/- (Ex.P.56); MRO dated 21.10.1994 for a sum of Rs.11,240/- (Ex.P.58); MRO dated 21.10.1994 for a sum of Rs.2,123/- (Ex.P.60); MRO dated 10.11.1994 for a sum of 69 Rs.836/- (Ex.P.62); MRO dated 23.12.1994 for a sum of Rs.1,133/- (Ex.P.64); MRO dated 23.08.1994 for a sum of Rs.10,020/- (Ex.P.66); MRO dated 09.01.1995 for a sum of Rs.1,610/- (Ex.P.68); MRO dated 09.01.1995 for a sum of Rs.1,610/- (Ex.P.70); MRO dated 21.05.1995 for a sum of Rs.6,512/- (Ex.P.72); MRO dated 15.02.1995 for a sum of Rs.6,274/- (Ex.P.74); MRO dated 22.02.1995 for a sum of Rs.6,553/- (Ex.P.76); MRO dated 21.03.1995 for a sum of Rs.8,100/- (Ex.P.77); MRO dated 19.04.1995 for a sum of Rs.14,500/- (Ex.P.79); MRO dated 09.05.1995 for a sum of Rs.5,386/- (Ex.P.80); MRO dated 25.05.1995 for a sum of Rs.3,560/- (Ex.P.81); MRO dated 25.05.1995 for a sum of Rs.1,644/- (Ex.P.83); MRO dated 25.05.1995 for a sum of Rs.1,576/- (Ex.P.85); MRO dated 12.06.1995 for a sum of Rs.7,190/- (Ex.P.87); MRO dated 12.06.1995 for a sum of Rs.3,600/- (Ex.P.89); MRO dated 27.06.1995 for a sum of Rs.4,540/- (Ex.P.91); MRO dated 05.07.1995 for a sum of Rs.3,330/- (Ex.P.93); MRO dated 14.07.1995 for a sum of Rs.9,669/- (Ex.P.95); MRO dated 08.08.1995 for a sum of 70 Rs.6,532/- (Ex.P.97); MRO dated 08.08.1995 for a sum of Rs.1,250/- (Ex.P.98); MRO dated 08.08.1995 for a sum of Rs.3,796/- (Ex.P.100); MRO dated 24.08.1995 for a sum of Rs.25,000/- (Ex.P.102).

PW2 has deposed that accused had not remitted amount under aforestated MROs. The accused had falsified entries in the cash register. The contents of covering letters addressed to CDA are not true.

77. PW4-Dr.A.M.Nageshwar Yogi, the then Scientist of CASSA, Bangalore has deposed in relation to aforestated entries;. PW4 has deposed; accused had made entries in cash book; accused had issued receipts in form of IAFA-175 and carbon copies of receipts were not available; there are no corresponding entries in cash receipt scrolls of the bank (SBI, HAL Branch, Bangalore) to show that the amount stated therein was remitted to bank. These MROs bear forged seals of the bank and forged signatures of bank officials.

71

78. From the evidence of PW2 and PW4, it is proved that accused had received amount and he had issued receipts in form No.IAFA-175 and had omitted to maintain carbon copy of receipts. The accused had not remitted the amount to bank.

79. From evidence of PW2 and PW4, we find that prosecution has proved the charges framed against the accused in Spl.C.C.No.133/1999. The prosecution has proved that accused has committed misappropriation of amount by committing forgery and falsification of accounts. In view of positive evidence given by PW4, the exclusion of Ex.P.204 (extra-judicial confession) from consideration would not detract credibility of evidence adduced by prosecution.

80. The learned counsel for accused would submit that prosecution has not adduced evidence to prove that accused had caused destruction of evidence viz fake rubber seal stamp and duplicate copies of alleged forged MROs. 72

81. In the discussion made supra, I have held that accused had forged MROs by affixing forged rubber stamp seals. The prosecution has established that accused had not remitted amount though he had prepared MROs in quadruplicate (four copies). The accused had retained a copy of each MRO for reference in the office (CASSA) and he had sent one copy of MRO to Controller of Defence Accounts. The prosecution cannot be expected to adduce direct evidence to prove that accused had destroyed MROs and fake rubber stamp. As already stated, destruction of MROs and fake rubber stamp would be a clandestine activity. We cannot expect prosecution to adduce direct evidence in proof of destruction of evidence when prosecution has proved that accused had caused destruction of evidence to conceal his guilt. It is not necessary for prosecution to adduce direct evidence regarding destruction of fake rubber stamp and two copies of MROs. Therefore, submission of learned counsel for accused cannot be accepted.

73

82. The prosecution by production of Ex.P.20 has proved that accused was entrusted with the work of cashier and he had been entrusted with duties of cashier, which include collection of excess TA & DA paid to officials of CASSA, issuance of receipts to them; making entries in cash register; preparation of MROs in quadruplicate and obtaining signature of senior administrative officer to MROs prepared in quadruplicate; remittance of cash under MROs to banker (SBI, HAL branch); bringing back two copies of MROs, containing seal of the bank and signatures of cashier for having received money under MRO; sending a copy of MRO to Controller of Defence Accounts along with other particulars for finalising bills.

83. The prosecution by examination of officials of CASSA stated supra has proved entrustment of work to accused and nature of duties performed by accused. The prosecution has proved that amount under some of MROs was not remitted to bank. The prosecution has proved that accused in order to conceal misappropriation of amount under MROs had forged 74 MROs by affixing signature of cashier of bank and affixing forged seals on MROs. The accused had destroyed two copies of MROs and retained one copy of MRO in CASSA. The accused had sent one copy of MRO to Controller of Defence Accounts to make it appear that amount under the MRO has been remitted to Bank. In relation to some of the remittances, the accused has not entered the amount in cash book, the accused had not maintained Form No.IAFA- 175 in duplicate. The accused had not kept carbon copies of receipts in relation to some of remittances received by accused. The accused in order to cover up these criminal acts had destroyed two copies of MROs and also destroyed fake rubber stamp, which he had used to forge MROs.

84. It is seen from evidence adduced by prosecution that prosecution has not able to prove that accused has committed aforestated offences with reference to each transactions stated supra. There are stray omissions in the evidence adduced by the prosecution. When the accused is alleged to have committed offences of forgery and falsification 75 of accounts and criminal breach of trust, it is not necessary that prosecution should prove these offences in relation to each of the transactions. In other words, when the prosecution has proved that accused has committed offences in relation to major number of transactions, the omission of prosecution to prove offences in relation to some of transactions will not enure to the benefit of accused.

85. In view of the above discussion, I hold the prosecution has proved beyond reasonable doubt that accused being cashier of CASSA has committed criminal misconduct by abusing his official position to misappropriate funds of CASSA for his own use, thereby committed an offence punishable under section 13(1)(c) r/w 13 (2) of the Act. The accused being a public servant has committed criminal breach of trust and misappropriated aforestated funds of CASSA and thereby committed an offence punishable under section 409 IPC. The accused has committed forgery by affixing his signature and affixing forged seal on MROs, which were used to remit money to bank, thereby committed 76 an offence punishable under section 467 IPC. The accused has used forged documents as genuine to make it appear the amount under MROs, was remitted to SBI Bank, HAL Branch and thereby committed an offence punishable under section 471 IPC. The accused had possessed counterfeit seal for using the same for the purpose of committing forgery of MROs and thereby committed an offence punishable under section 472 IPC. The accused being cashier of CASSA had falsified entries in cash register. The accused has failed to maintain receipts in duplicate after having received money from officials of CASSA and thereby committed an offence punishable under section 477A IPC. The accused had caused disappearance of evidence (seal and two copies of MROs) by destroying the seal and two copies of MROs with intention to save himself from legal punishment and thereby committed an offence punishable under section 201 IPC.

86. The learned Special Judge on proper appreciation of evidence has held the accused guilty of offences punishable under sections 409, 467, 471, 472, 477A & 201 IPC and also 77 for an offence punishable under section 13(1)(c) r/w 13 (2) of the Act. The learned Special Judge having regard to nature of office held by accused and nature of offences alleged proved him and considering mitigating circumstances pleaded by accused has taken a reasonable view in the matter of sentence. There are no reasons to interfere with the impugned judgment.

87. In the result, I pass the following:-

ORDER The appeals are dismissed.
Sd/-
JUDGE Np/SRL/SNN.