Telangana High Court
K.Venkata Prasad, Anantapur Dt., vs State Of Telangana, Rep Spl.Pp For Cbi ... on 22 March, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL APPEAL Nos.1391, 1572 & 1382 OF 2017
COMMON JUDGMENT:
Heard Mr. Nageshwara Rao Pappu, learned senior counsel for appellant - accused No.1 in Crl.A. No.1391 of 2017, Mr. E. Uma Maheshwar Rao, learned counsel representing Mr. Enuganti Sudhanshu Rao, learned counsel for appellant - accused No.4 in Crl.A. No.1382 of 2017, Mrs. N. Sasikala, learned counsel for the appellant - accused No.3 in Crl.A. No.1572 of 2017 and Mrs. S. Anandi, learned Special Public Prosecutor for CBI appearing on behalf of respondent.
2. Criminal Appeal No.1391 of 2017 is filed by accused No.1 challenging the judgment dated 15.11.2017 in C.C. No.33 of 2007 passed by the Principal Special Judge for CBI Cases, Hyderabad, while Criminal Appeal No.1382 of 2017 is filed by accused No.4 and Criminal Appeal No.1572 of 2017 is filed by accused No.3 challenging the very same judgment.
3. Vide the aforesaid judgment, dated 11.11.2017, the trial Court found the appellants - accused Nos.1, 3 and 4 guilty of the charge under Section - 120B of IPC. Apart from the above charge, the 2 KL,J Crl.A. Nos.1391 of 2017 & batch appellant - accused No.1 was also found guilty of the charges under Section - 409 and Section - 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 (for short 'Act, 1988'), accused No.3 was found guilty of the charge under Section - 411 of IPC and accused No.4 was found guilty of the charges under Sections - 420, 420 read with 511, 471 and 471 read with 511 of IPC and accordingly imposed respective sentences of imprisonment in the following manner:
i) Accused Nos.1, 3 and 4 were sentenced to undergo rigorous imprisonment for a period of three (03) years each and to pay a fine of Rs.10,000/- (Rupees Ten Thousand Only) each and in default to undergo simple imprisonment for a period of seven (07) days each for the charge under Section - 120B of IPC.
ii) Accused No.1 was further sentenced to undergo rigorous imprisonment for a period of five (05) years and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) and in default to undergo simple imprisonment for a period of fifteen (15) days for the charge under Section - 409 of IPC. He was further sentenced to undergo rigorous imprisonment for a period of three (03) years and to 3 KL,J Crl.A. Nos.1391 of 2017 & batch pay a fine of Rs.10,000/- (Rupees Ten Thousand Only) and in default to undergo simple imprisonment for a period of seven (07) days for the charge under Section - 13 (2) read with 13 (1) (d) of the Act, 1988.
iii) Accused No.3 was further sentenced to undergo rigorous imprisonment for a period of three (03) years and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) and in default to undergo simple imprisonment for a period of fifteen (15) days for the charge under Section - 411 of IPC.
iv) Accused No.4 was further sentenced to undergo rigorous imprisonment for a period of three (03) years and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand Only) and in default to undergo simple imprisonment for a period of one (01) month for the charge under Section - 420 of IPC. He was further sentenced to undergo for a period of one (01) year and to pay a fine of Rs.25,000/- (Rupees Twenty Thousand Only) and in default to undergo simple imprisonment for a period of fifteen (15) days for the charge under Section - 420 read with 511 of IPC on two counts. He was also sentenced to undergo for a period of five (05) years and to pay a fine of Rs.2,00,000/- (Rupees Two Lakhs Only) and in default to undergo 4 KL,J Crl.A. Nos.1391 of 2017 & batch simple imprisonment for a period of three (03) months for the charge under Section - 471 of IPC. He was further sentenced to undergo for a period of two (02) years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh Only) and in default to undergo simple imprisonment for a period of one (01) month for the charge under Section - 471 read with 511 of IPC on two counts.
4. The case of the prosecution is as under:
i) In pursuance of a criminal conspiracy with accused Nos.2 to 6, eighteen (18) Demand Draft (DD) Forms were stealthily removed from the safe custody of State Bank of Hyderabad (SBH), Hussaini Alam Branch, Hyderabad by accused No.1, the then Deputy Manager on 06.12.2003 and handed over the same to accused No.3, Sub-
Inspector of Police, Kurnool, on receipt of Rs.60,000/-.
ii) Then, accused No.3 gave the said DD forms to accused No.4. Out of the said eighteen (18) stolen blank computerized DD forms, bearing Nos.828941, 828942, 828945, 828946, 828947, 828948, 828951 and 828952 were got fabricated in favour of M/s. MDR Jewellers and 'Bank of Nova Scotia A/c MDR Jewellers for amount aggregating Rs.3.97 Crores by forging signatures and the same were 5 KL,J Crl.A. Nos.1391 of 2017 & batch used as genuine by accused No.4 during the period from 09.12.2003 to 17.12.2003 for purchase of gold from M/s. MDR Jewellers of Jaipur.
iii) Another two stolen DD Nos.828949 and 828950 were got fabricated in favour of M/s. Kiran Jewellers for amount aggregating to Rs.149 lakhs and two stolen DD Nos.828955 and 828956 were got fabricated in favour of M/s. Bhagwati Agencies Pvt. Ltd., for an amount aggregating to Rs.171 lakhs by forging signatures and the same were used as genuine by accused No.4 and attempted to purchase gold against the same from M/s. Kiran Jewellers, Ahmedabad and M/s. Bhagwati Agencies Pvt. Ltd., New Delhi on 19.12.2003.
iv) Thus, the appellants herein and other accused during the period November-December, 2003 to cheat the SBH and to commit theft, criminal breach of trust, forgery and criminal misconduct for obtaining undue pecuniary advantage for themselves, causing wrongful loss to the Bank, and thereby they have committed the aforesaid offences.
5. After completion of investigation, the CBI laid the charge sheet and the same was taken on file as C.C.No.33 of 2007. 6
KL,J Crl.A. Nos.1391 of 2017 & batch
6. During the trial, PW.1 to PW108 were examined and Exs.P1 to P285 were marked on behalf of the prosecution. None was examined on behalf of the accused. However, Exs.D1 to D16 which are statements of PWs.91 and 88 recorded under Section - 161 of Cr.P.C., were marked on behalf of accused No.4.
7. During pendency of the aforesaid C.C., accused No.2 died and, therefore, the case against him stood abated.
8. After hearing both sides, the trial Court found the appellants herein guilty of the aforesaid offences, accordingly recorded conviction and imposed sentences of imprisonment on them in the manner stated therein.
9. The trial Court while recording conviction against the appellants observed as under:
i) Accused No.1 joined as Assistant Manager initially on 30.03.2001. He was promoted in the first week of December, 2003 as Deputy Manager. As per the evidence of PW.2, accused No.1 was placed in-charge of cash and valuables apart from other sections in the subject branch and as the joint custodian of security forms along with PW.13. After joining PW.3, PW.13 was relieved from joint custodian 7 KL,J Crl.A. Nos.1391 of 2017 & batch duty on 17.07.2002. PW.2 also deposed that PW.3 and accused No.1 were joint custodians of security forms from 17.07.2002 to 20.12.2003. Even after promotion of accused No.1 as Deputy Manager, he continued as one of the joint custodians.
ii) The trial Court also observed that the evidence so adduced by the prosecution is clearly proved that out of eighteen (18) stolen computerized blank demand draft forms, twelve (12) were made use of and fate of remaining six (06) stood undetected and untraced. These twelve forms, which were converted and forged fabricating into Exs.P9, P10, P18 to P25, P32 and P33 demand drafts along with their respective advices were apparently made use of, for the purpose of gold bars. These forms so stolen by accused No.1 passed into the hands of forgers through the medium of accused No.3 which he dishonestly received, knowing that they are stolen, who proved in this case as receiver of stolen properties. When the evidence is clearly established against accused No.3, in view of presumption under Section - 114 (a) of the Evidence Act, the burden is on accused No.3 to show as to what happened to those stolen demand draft forms. 8
KL,J Crl.A. Nos.1391 of 2017 & batch Thus, the burden required to be discharged by him is only in preponderance of probability.
iii) The trial Court further observed that the charge under Section 411 of IPC, receiving such stolen property illegally is sufficient that was in possession of accused No.3. It is not necessary that the stolen property is retained by the receiver and which should be established by the prosecution. Accused No.4 through his purported entity, M/s. Balaji Jewellers, G-11, Ahuja Estates, Abids, Hyderabad, had bargained for gold bars in this process basing on the forged demand drafts. So, the circumstances so brought out against accused Nos.1, 3 and 4 form a complete chain without any missing link and they point out and lead to only one inference of their criminal culpability relating to instances in this case.
iv) With regard to the offence under Section - 120B of IPC, the prosecution proved the said offence and it stood attracted against accused Nos.1, 3 and 4. Criminal conspiracy they entered into was for the purpose of cheating SBH, Hussaini Alam Branch, Hyderabad attracting section 420 of IPC and in making use of such forged and 9 KL,J Crl.A. Nos.1391 of 2017 & batch fabricated demand drafts for their wrongful gain, attracting Section 471 of IPC.
v) Accused No.4 by his fraudulent and dishonest acts made SBH to suffer in the process, through accused No.1 in stealing away such blank demand draft forms that were dishonestly received by accused No.3 and making use of them knowingly as Exs.P18 to P25 demand drafts but for which, it would not have suffered any loss and thus, Section 420 IPC is attracted against accused No.4 and attempted to cheat the bank, presenting Exs.P9 and P10 demand drafts at Ahmedabad as well as Exs.P32 and P33 demand drafts at Delhi, attracting separate charges under Section - 420 read with 511 of IPC.
vi) Similarly, accused No.4 had knowingly made use of Exs.P18 to P25 demand drafts along with their advices, which are forged and dishonestly and fraudulently use them as if genuine for purchasing gold. There is proof that Exs.P9 and P10 were attempted to be made use of by accused No.4 through M/s. Kiran Jewellers in SBH, Ashram Road Branch, Ahmedabad knowingly as if they are genuine. Therefore, charge under Section 471 read with 511 of IPC is also proved against accused No.4.
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KL,J Crl.A. Nos.1391 of 2017 & batch
vii) Similarly, attempt was made presenting Exs.P32 and P33 through M/s. Bhagwati Agencies Pvt. Ltd., New Delhi in ICICI Bank, Greater Kailash, New Delhi by accused No.4 knowingly, dishonestly, with fraudulent intention, and thereby he is liable to be punished for the offence under Section - 471 read with 511 of IPC.
viii) Accused No.1 being public servant committed such criminal misconduct gaining pecuniary advantage for himself while holding the office as Deputy Manager, SBH, Hyderabad, and as public servant and, therefore, he is liable to be punished for the offence under Section - 13 (1) (d) read with 13 (2) of P.C. Act. However, the trial Court observed that the offence of abetment attributed to accused Nos.1, 3, 5 and 6 in the process to accused No.4 was not made out.
ix) The trial Court also observed that though there is evidence proving the fact that Exs.P9, P10, P18 to P25, P32 and P33 bear the signature of accused No.1 as counter signing officer, it cannot be a circumstance by itself to make out that accused No.1 abetted accused No.4 in the process, in making use of these forged and fabricated demand drafts, particularly, when his role along with accused No.3 is proved and that of accused No.4 as a part of a grand design in criminal 11 KL,J Crl.A. Nos.1391 of 2017 & batch conspiracy that he had stolen these blank demand draft forms and subscribed his signatures on them attracting a charge under Section 120B of IPC.
x) With the said observations, the trial Court recorded conviction against the appellants for the aforesaid offences and imposed respective punishments thereof.
10. Challenging the same, the appellants preferred the present appeals:
11. Learned counsel for the appellants would submit as under:
i) PWs.4, 6, 14 and 16 to 18, 28, 55, 59, 85, 88 and 91 are interested witnesses and relying on such evidence, trial Court recorded conviction;
ii) The appellants had no role in commission of the aforesaid offences;
iii) No prior sanction was obtained to prosecute the appellants for the offence punishable under Section - 120B of IPC;
iv) No conviction can be based upon the retracted extra judicial confession of a co-accused;12
KL,J Crl.A. Nos.1391 of 2017 & batch
v) Accused No.3 is neither a custodian of demand drafts, nor has any access over it so as to draw a presumption under Section - 114 of the Evidence Act;
vi) Non-examination of Ajay Gupta, the brother of PW.28 is fatal to the prosecution case;
vii) The trial Court without considering all the said aspects, recorded conviction and imposed sentences of imprisonment on assumptions and presumptions; and
viii) There are no eye-witnesses to the incident and the entire case rests on circumstantial evidence. There is no chain of circumstances to connect the appellants with the offences alleged to have been committed by them.
ix) They would further submit that except alleged evidence of interested witnesses, there is no other evidence to connect the alleged offence and, therefore, much weight need not be given to the prosecution case. The prosecution has miserably failed to prove its case against the appellants beyond all reasonable doubt. Without considering the said aspects, the trial Court erred in recording the 13 KL,J Crl.A. Nos.1391 of 2017 & batch conviction against the accused and, therefore, they sought to set aside the convictions and sentences of imprisonment.
12. As far as accused No.4 is concerned, learned counsel would submit that the trial Court relied on the evidence of PW.85 and PW.88 to convict accused No.4 though the same is not incriminating to prove any offence. There was no material witness to speak about the role of accused No.4 in purchase and sale of gold. Even in the evidence of PW.85, there is reference as to accused No.4 coming to Hyderabad on 14.12.2003. There was no possibility of Pw.85 taking delivery of gold in Delhi from PW.88 on 15.12.2023 as he deposed that he was in Hyderabad on 15.12.2023. The trial Court erred in holding that PW.88 contacted accused No.4 as demand drafts were given by Jabbar Singh. In fact, the prosecution did not examine the said Jabbar Singh. PW.88 did not identify accused No.4. PW.85 did not depose in his evidence that he arranged for air travel from Hyderabad, but the trial Court wrongly held on the said aspect. There is no evidence to connect accused No.4 with the address of M/s. Balaji Jewellers, which is situated in Ahuja Estates, Abids, Hyderabad. The prosecution did not examine the owner of the said Ahuja Estates to prove that accused 14 KL,J Crl.A. Nos.1391 of 2017 & batch No.4 is the proprietor of M/s. Balaji Jewellers or tenant of the said premises. When witnesses make two inconsistent statements in their evidence, the testimony of such witnesses has become unreliable and unworthy of credence. In support of the same, learned counsel has placed reliance on the decision in Suraj Mal v. State (Delhi Administration) 1.
i) Learned counsel would also submit that suspicion howsoever grave is not a ground for conviction. He placed reliance on the decision in Ram Niwas v. State of Haryana 2.
ii) As far as Section - 120B of IPC is concerned, learned counsel would submit that there was no evidence to connect accused No.4 with any other accused or there was no meeting of minds between accused No.4 and other accused. The prosecution had not placed even a single circumstance to prove criminal conspiracy.
iii) With regard to the offence under Section - 420 IPC, there was no evidence to prove that accused No.4 played deception or parted with any property. With regard to the offence under Section - 420 read with 511 of IPC, learned counsel would contend that accused 1 . (1979) 4 SCC 725 2 . 2022 SCC OnLine SC 1007 15 KL,J Crl.A. Nos.1391 of 2017 & batch No.4 did not approach or meet any witness to play deception in order to part with any property or attempted to do so and, therefore, he cannot be convicted for the aforesaid offence. Similarly, accused No.4 did not use or attempt to use and forged documents as genuine and, therefore, he cannot also be convicted for the offence under Section 471 read with 511 of IPC.
13. On the other hand, learned Special Public Prosecutor for CBI, would contend that the evidence of prosecution witnesses would prove the guilt of the appellants herein. The trial Court gave specific reasoning by referring to the depositions of prosecution witnesses and the documents as mentioned in the impugned judgment. Though there is no direct evidence, the trial Court by considering circumstantial evidence and documentary evidence recorded the conviction for the said offences. He would further contend that the trial Court is having power to record conviction even by relying on circumstantial evidence. There is no circumstance/reason that warrants interference by this Court in the present appeal.
14. In view above, the issue that falls for consideration by this Court is:
16
KL,J Crl.A. Nos.1391 of 2017 & batch Whether the convictions recorded by the trial Court for the aforesaid offences against the appellants - accused Nos.1, 3 and 4 are sustainable, both on facts and in law?
ALLEGATIONS AGAINST THE ACCUSED:
15. Though the trial Court framed charge under Sections - 120B, 379, 409, 420 read with 107 of IPC, 420 read with 120B of IPC, 468 read with 107 of IPC, 468 read with 120B of IPC, 471 read with 107 of IPC, 471 read with 120B of IPC and Section - 13 (2) read with 13 (1) (d) of the Act, 1988, the trial Court convicted accused No.1 only for the offences under Sections - 120B and 409 of IPC and Section - 13 (2) read with 13 (1) (d) of the Act, 1988, while acquitting for the other offences.
16. As discussed above, the allegation against accused No.1 is that he was the Deputy Manager, SBH, Hussaini Alam Branch, Hyderabad, worked from 30.03.2001 onwards. Initially, he joined as an Assistant Manager and later promoted as the Deputy Manager from the 1st week of December, 2003. He was dismissed from service w.e.f. 17.03.2005.
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KL,J Crl.A. Nos.1391 of 2017 & batch
i) Accused No.1 joined with accused Nos.2 to 6 in criminal conspiracy at Hyderabad during November and December, 2003 to cheat SBH, Hussaini Alam Branch, Hyderabad, to commit theft, criminal breach of trust, forgery and criminal misconduct for obtaining undue pecuniary advantage for themselves, and other accused, causing wrongful loss to the aforesaid branch of SBH and wrongful gain for themselves. Pursuant to such criminal conspiracy, at the instance of accused Nos.2 to 6, accused No.1 removed eighteen (18) blank computerized Demand Draft (DD) Forms bearing Nos.828941 to 828958 along with related DD advices stealthily from safe custody of SBH, Hussaini Alam Branch on 06.12.2003. He, in turn, handed them over to accused No.3 along with accused No.2, upon receiving a consideration of Rs.60,000/-.
ii) It is further alleged that these blank computerized demand draft forms were handed over by accused No.3 to accused No.4, who dishonestly received them and twelve (12) demand drafts were got fabricated out of them, forging signatures and were used as genuine by accused No.4. Eight (8) demand drafts out of eighteen (18) so fabricated and prepared bearing No.828941, 828942, 828945 to 18 KL,J Crl.A. Nos.1391 of 2017 & batch 828948, 828951 and 828952 in favour of M/s. MDR Jewellers and Bank of Scotia A/c. M/s MDR Jewellers for Rs.3.97 Crores, forging signatures and they were dishonestly and fraudulently used as genuine by accused No.4 to purchase gold from MDR Jewellers, Jaipur. Thus, all these eight (8) fabricated demand drafts were paid by SBH, Service Branch, Delhi, during the period from 09.12.2003 to 17.12.2003.
iii) Two (02) out of these eighteen (18) stolen bank computerized demand draft forms bearing printed serial No.828949 and 828950 were got fabricated for Rs.77.00 lakhs and 72.00 lakhs, respectively in favour of M/s. Kiran Jewellers, Ahmedabad, forging signatures. They were dishonestly and fraudulently used as genuine by accused No.4, who attempted to purchase gold from M/s. Kiran Jewellers. When these fabricated demand drafts were presented for payment to SBH, Ashram Road Branch, Ahmedabad on 09.12.2003, they remained unpaid due to detection of fraud by the said Branch.
iv) Two (02) more out of eighteen (18) stolen computerized demand draft forms bearing No.828955 and 828956 were got fabricated as demand drafts for Rs.81.00 lakhs and Rs.90.00 lakhs 19 KL,J Crl.A. Nos.1391 of 2017 & batch respectively in favour of M/s. Bhagwati Agencies Pvt.Ltd., New Delhi, forging signatures. They were dishonestly and fraudulently used as genuine by accused No.4 and attempted to purchase gold against them from M/s. Bhagwati Agencies Private Limited. When these two fabricated demand drafts were presented for payment with SBH, Service Branch, New Delhi, through ICICI Bank, Connaught Place Branch, New Delhi, on 19.12.2003, they remained unpaid due to detection of fraud by staff of the said branch of SBH.
v) Thus, according to the CBI, by the said acts, accused Nos.1 to 6 caused wrongful loss to SBH, Hussaini Alam Branch, to a tune of Rs.3.97 Crores and attempted to cause further loss of Rs.3.20 Cores with corresponding gain to them. Thus, the accused have committed the aforesaid offences and they are punishable for the same.
17. To prove the said allegations, the prosecution has examined PWs.1 to 108, Exs.P1 to 285 were marked and on behalf of the accused, Exs.D1 to 16 were marked.
18. As discussed supra, on consideration of entire evidence, the trial Court convicted accused No.1 for the offences under Sections- 20
KL,J Crl.A. Nos.1391 of 2017 & batch 120B and 409 of IPC and Section - 13(2) read with 13 (1) (d) of the Act, 1988.
19. Section- 120B of IPC deals with punishment for criminal conspiracy. Section - 120A of IPC deals with criminal conspiracy and, therefore, both the provisions are extracted hereunder:
"120A. Criminal Conspiracy.--When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
"120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no 21 KL,J Crl.A. Nos.1391 of 2017 & batch express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
20. To bring home the charge of conspiracy within the ambit of Section - 120B IPC, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn, but there must be some material from which it could be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy. The said principle was also held by the Apex Court in P. Vijayan v. State of Kerala 3.
21. In the absence of any reasonable evidence that at least two brains had consulted the offence, a charge of conspiracy cannot be 3 . (1999) 3 SCC 54 22 KL,J Crl.A. Nos.1391 of 2017 & batch sustained as held by the Apex Court in Hardeo Singh v. State of Bihar 4.
22. It is also settled principle that merely on the basis of suspicion of informant about conspiracy of accused to commit alleged crime, accused cannot be convicted for the offence under Section - 120B of IPC. The said principle was also held by the Apex Court in Sattar v. State of U.P. 5.
23. In State of Kerala v. P. Sugathan 6, the Apex Court held that an agreement forms the core of the offence conspiracy, and it must surface in evidence through some physical manifestation. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It was further held that the most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where 4 . AIR 2000 SC 2245 5 . 2001 Crl.L.J. 676 (All.) 6 . (2000) 8 SCC 203 23 KL,J Crl.A. Nos.1391 of 2017 & batch criminal conspiracy is alleged, the Court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators, but the latter does. For the offence of conspiracy, some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient.
24. In State (NCT of Delhi) v. Navjot Sandhu 7, the Apex Court held as follows:
"One more principle which deserves notice is that the cumulative effect of proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."7
. (2005) 11 SCC 600 24 KL,J Crl.A. Nos.1391 of 2017 & batch
25. In Tanviben Pankajkumar Divetia v. State of Gujarat 8, the Apex Court held as under:
"45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court 8 . (1997) 7 SCC 156 25 KL,J Crl.A. Nos.1391 of 2017 & batch has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes; unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. (Jaharlal Das v. State of Orissa (1991) 3 SCC 27).
(emphasis supplied)"
26. In Ram Narayana Popli v. CBI 9, the Apex Court held as follows:
"... For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."
27. In Maghavendra Pratap Singh alias Pankaj Singh v. State of Chhattisgarh 10, the Apex Court held that to prove the offence of criminal conspiracy it is imperative to show a meeting of the minds between the conspirators for the intended common object. 9 . (2003) 3 SCC 641 10 . 2023 SCC OnLine SC 486 26 KL,J Crl.A. Nos.1391 of 2017 & batch The prosecution has to prove that there is meeting of minds. The charge of criminal conspiracy requires meeting of minds prior to commission of offence. In the absence of any cogent evidence establishing meeting of minds, recording conviction by trial Court for the offence under Section - 120B IPC is unsustainable.
28. The Apex Court further held that it is not necessary that there must be a clear, categorical and an express agreement between the accused. But, however, an implied agreement must manifest upon relying on principles established with the cases of circumstantial evidence.
29. Section - 405 IPC deals with criminal breach of trust and the same is extracted as under:
"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge 27 KL,J Crl.A. Nos.1391 of 2017 & batch of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"."
30. Section - 409 of IPC deals with criminal breach of trust by public servant, or a banker, merchant or agent, and the same is extracted as under:
"409.Criminal breach of trust by public servant, or by banker, merchant or agent- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
31. In N. Raghavender v. State of Andhra Pradesh 11, the Apex Court held as under:
"41. Section 409 IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property 11 . (2021) 18 SCC 70 28 KL,J Crl.A. Nos.1391 of 2017 & batch which he is duly bound to account for and that he has committed criminal breach of trust. (See: Sadupati Nageswara Rao v. State of Andhra Pradesh [(2012) 8 SCC 547]).
42. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409 IPC. The expression 'criminal breach of trust' is defined under Section 405 IPC which provides, inter alia, that whoever being in any manner entrusted with property or with any dominion over a property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property contrary to law, or in violation of any law prescribing the mode in which such trust is to be discharged, or contravenes any legal contract, express or implied, etc., shall be held to have committed criminal breach of trust. Hence, to attract Section 405 IPC, the following ingredients must be satisfied:
i) Entrusting any person with property or with any dominion over property;
ii) That person has dishonestly mis-appropriated or converted that property to his own use;29
KL,J Crl.A. Nos.1391 of 2017 & batch
iii) Or that person dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law or a legal contract.
43. It ought to be noted that the crucial word used in Section 405 IPC is 'dishonestly' and therefore, it pre-supposes the existence of mens rea. In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ambit of criminal breach of trust. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is 'mis-appropriates' which means improperly setting apart for ones use and to the exclusion of the owner.
44. No sooner are the two fundamental ingredients of 'criminal breach of trust' within the meaning of Section 405 IPC proved, and if such criminal breach is caused by a public servant or a banker, merchant or agent, the said offence of criminal breach of trust is punishable under Section 409 IPC, for which it is essential to prove that:
i) The accused must be a public servant or a banker, merchant or agent;
ii) He/She must have been entrusted, in such capacity, with property; and 30 KL,J Crl.A. Nos.1391 of 2017 & batch
iii) He/She must have committed breach of trust in respect of such property.
45. Accordingly, unless it is proved that the accused, a public servant or a banker etc. was 'entrusted' with the property which he is duty bound to account for and that such a person has committed criminal breach of trust, Section 409 IPC may not be attracted. 'Entrustment of property' is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was 'entrusted' to the accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof. Where the 'entrustment' is admitted by the accused or has been established by the prosecution, the burden then shifts on the accused to prove that the obligation vis-à-vis the entrusted property was carried out in a legally and contractually acceptable manner."
32. The said principle was reiterated in Sadupati Nageswara Rao v. State of Andhra Pradesh 12.
33. Thus, the following are the essential ingredients to prove the offence under Section - 409 of IPC.
12 . (2012) 8 SCC 547 31 KL,J Crl.A. Nos.1391 of 2017 & batch
i) Accused must be a public servant or a banker, merchant or agent;
ii) He/she must have been entrusted in such capacity with property; and
iii) He/she must have committed breach of trust in respect of such property.
34. As discussed above, accused No.1 was Deputy Manager, SBH, Hussaini Alam Branch at the relevant point of time and he was 'public servant' as defined under Section -2 (c) of the Act, 1988. But, the prosecution has to prove other two ingredients i.e., entrustment of property and committing breach of trust in respect of such property.
35. Section - 411 of IPC deals with dishonestly receiving stolen property, and the same is extracted hereunder:
"Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."32
KL,J Crl.A. Nos.1391 of 2017 & batch
36. In Trimbak v. State of Madhya Pradesh 13, the Apex Court discussed essential ingredients for conviction under Section - 411 of IPC and held that the prosecution must prove the following essential ingredients:
i) That the stolen property was in the possession of accused;
ii) That some person other than the accused had possession of the property before the accused got possession of it; and
iii) That the accused had knowledge that the property was stolen property.
37. Section - 13 of the Act, 1988 deals with criminal misconduct by a public servant and Section - 13 (1) (d) of the Act, 1988 is extracted hereunder:
"13. Criminal misconduct by a public servant:
1. A public servant is said to commit the offence of criminal misconduct,-
(a) xxxxx
(b) xxxxx
(c) xxxxx
(d) if he,-
13 . AIR 1954 SC 39 33 KL,J Crl.A. Nos.1391 of 2017 & batch
i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest,;
(e) xxxxx (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
38. In Neeraj Dutta v. State 14, the Apex Court observing that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections - 7 and 13 (1) (d) read with 13 (2) of the Act, 1988 concluded that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence. The relevant paragraph of the said judgment is as under: 14
. 2022 INSC 1280 34 KL,J Crl.A. Nos.1391 of 2017 & batch "The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand."
39. Section - 415 of IPC deals with cheating and the same is extracted hereunder:35
KL,J Crl.A. Nos.1391 of 2017 & batch "415. Cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
40. Section- 420 of IPC deals with cheating and dishonestly inducing delivery of property and the same is extracted hereunder;
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."36
KL,J Crl.A. Nos.1391 of 2017 & batch
41. The Apex Court in Prof. R.K. Vijayasarathy v. Sudha Seetharam 15, held that the ingredients to constitute an offence under Section - 420 of IPC are as follows:
i) a person must commit the offence of cheating under Section 415; and
ii) the person cheated must be dishonestly induced to
a) deliver property to any person; or
b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
Thus, cheating is an essential ingredient for an act to constitute an offence under Section - 420 of IPC. Cheating is defined under Section
- 415 of IPC. The ingredients to constitute an offence are as follows:
i) there should be fraudulent or dishonest inducement of a person by deceiving him;
ii) The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived.
iii) Thus, a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person 15 . (2019) 16 SCC 739 37 KL,J Crl.A. Nos.1391 of 2017 & batch who dishonestly induced any person to deliver any property is liable for the offence of cheating.
42. The said principle was also laid by the Apex Court in Dr. Lakshman v. State of Karnataka 16and Archana Rana v. State of U.P. 17.
43. Section - 511 of IPC deals with punishment for attempting to commit offences punishable with imprisonment for life or other punishment and the same is extracted as under:
"511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that 16 . (2019) 9 SCC 677 17 . AIR 2021 SC 1177 38 KL,J Crl.A. Nos.1391 of 2017 & batch offence, or with such fine as is provided for the offence, or with both."
44. Section - 471 of IPC deals with using as genuine a forged document or electronic record and the same is extracted as under:
"471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."
45. In the light of the aforesaid principle, coming to the case on hand, to prove the conspiracy against accused No.1, prosecution had examined several witnesses.
46. PW.1 - Chief Vigilance Officer, SBH, Hyderabad, deposed that 18 blank demand draft forms were in the joint custody of Mr. A. Narsing Rao (accused No.1) and PW.3. When SBH, Ahmedabad Branch sought confirmation from Branch Manager, Hussaini Alam Branch, Hyderabad, regarding high value of two drafts said to be issued by Hussaini Alam Branch, during the verification it came to the light that 18 blank demand draft forms were stolen from the Bank. 39
KL,J Crl.A. Nos.1391 of 2017 & batch The Branch Manager, Hussaini Alam Branch, alerted All the Service Branches of SBH, to stop payment in respect of missing demand drafts containing serial numbers. While so, information received from Service Branch, Delhi that two drafts aggregating Rs.177.00 lakhs were presented with them containing the serial numbers of missing drafts.
i) During cross-examination, he has categorically admitted that there is a bank manual prescribing the rolls and responsibilities of each employee. He is aware of the said procedure relating to receiving and disbursement of stationery in a Branch. The joint custodians of security forms will verify the stock position with reference to Registers at the end of every day. Unless reported to him by the concerned Branch, he does not have personal knowledge regarding the affairs of Branches. He does not have personal knowledge regarding the employees of Branches and their designations as he was stationed at Head Office.
47. PW.2 - Chief Manager (Maintenance), SBH, deposed that all the security forms were used to be kept in a steel almirah under a double lock of joint custodian officers. There were two such almirahs 40 KL,J Crl.A. Nos.1391 of 2017 & batch in their branch which were kept inside the strong room under the double locker branch at Cashier and the Joint Custodian Officer. All the security forms received from the Stationery Department of Head Office will be received at their Branch and accounted for in the stamped and unstamped register maintained by the Joint Custodians of the security forms. The entries made in the said Register shall be initialed by the Joint Custodians. As and when security forms are issued to the concerned dealing officer for daily use of the branch, necessary entries regarding quantity issued will be made in the stamped and unstamped register at the relevant page relating to the item concerned by the Joint Custodians. Stamped and Unstamped Register will contain all the receipts and issues of the security forms.
i) He further deposed that accused No.1 joined in their Branch as Assistant Manager on 30.03.2001. He has allotted accused No.1 with the duty of dealing clearing section, saving banks section, current account section and also made him in-charge of Cash and valuables and also joint custodian of security forms along with PW.13. After joining of PW.3 as Deputy Manager on 17.07.2002, PW.13 was relieved from the joint custodian duty and assigned with the duties of 41 KL,J Crl.A. Nos.1391 of 2017 & batch system administration and general banking. PW.3 was allotted the duties of clearing sections, drafts and bankers' cheques issue and payments, safe deposit lockers, LSCs and bills and joint custodian of security forms including blank demand draft forms. Thus, PW.3 and accused No.1 were the joint custodians of security forms from 17.07.2002 to 20.12.2003. Accused No.1 was promoted as Deputy Manager in the first week of December, 2003. Even after his promotion, he continued as joint custodian of security forms.
ii) He further deposed that soon after sending fax letter, he verified the records and found that the drafts, which were presented in the Ashram Road Branch were not released from the joint custody of their branch. He summoned two joint custodians i.e., accused No.1 and PW.3 and enquired them in the presence of PW.21 - Deputy Manager, SBH and asked them as to how those two drafts could be presented in the Ashram Road Branch, without there being released from their joint custody. Both of them pleaded ignorance. When he informed that since the fax copies of two drafts received from Ashram Road Branch bear the signatures of accused No.1, he should, therefore, explain how those two drafts went out without his 42 KL,J Crl.A. Nos.1391 of 2017 & batch knowledge. Then accused No.1 explained that he neither removed the drafts from safe custody nor signed on those two drafts. Thereupon, in the presence of those three persons, he got opened the almirah containing security forms and verified the bank draft forms. On such verification, he came to know that 18 blank demand draft forms bearing Nos.828941 to 828958 (Exs.P9, 10, 18 to P25, 33 etc.,) along with advices were missing. He gave time to accused No.1 and asked him to speak truth before PW.3 and PW.21. Even then also, accused No.1 did not come forward to speak anything. Therefore, he has reported the same to the Higher Officers.
iii) He further deposed that at the Zonal Office, he narrated the AGM and DGM about the developments that took place since the time of receiving phone call from Ashram Road Branch, Ahmedabad. At that time, he expressed his apprehension that accused No.1 might have removed the missing 18 DD forms. Thereafter, PW.6 sent them outside of his cabin and enquired accused No.1. On the instructions of PW.6, he lodged a report with SHO, Hussaini Alam Police Station, Hyderabad, on the same date. They have surrendered accused No.1 to the police of Hussaini Alam. All the 10 drafts bear the signatures of 43 KL,J Crl.A. Nos.1391 of 2017 & batch accused No.1 and he signed on those 10 drafts as counter signed official.
iv) During cross-examination, he has admitted that whenever stationery concerning to security forms are received from the stationery department of Head Officer, the same will be verified by the joint custodians with reference to the indebt and then will be entered in Exs.P2 and P3. The factum of issuing stationery to the concerned dealing officer will also be recorded in Exs.P2 and P3. In all the time, the stationery pertaining to security forms will be under the joint custody of respective custodians. The stationery pertaining to the security forms will be kept in an almirah having two keys and each custodian will hold one key. The said almirah will be kept in a chest. The chest will also have two keys possessed by one joint custodian and Head Cashier. The almirah and chest cannot be opened without using both the keys. At the relevant time, PW.3 was in- charge of the draft section. Internal audit to their branch will be held once in 12 to 18 months. Verification and income leakage audit will be held once in a year in their branch.
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48. PW.3 deposed about receipt of phone call from ICICI Branch, Ashram Road Branch, Ahmedabad on 19.12.2002 enquiring about the date of two demand drafts said to have been issued by their branch. He cannot give any document now since he has lost vision. His right eye is affected on account of paralysis, impairing vision completely and whereas his left eye is affected due to cataract, out of which, he could not regain vision since the surgery was not successful. His vision is hazy now.
i) He further deposed that PW.2 informed him about two demand drafts said to have been issued by their branch and enquiries about them by ICICI Bank, Ashram Road, Ahmedabad. Those two drafts were not issued maintaining continuity in serial numbers and they appear as if they were taken out from the bunch of blank demand drafts from the bottom since they bear the last numbers in that bunch of blank demand drafts. They felt that those two DDs were not issued by their Branch. It was conveyed to ICICI Branch, Ashram Road Branch, Hyderabad, by PW.2 over phone. These drafts were for Rs.77.00 lakhs and Rs.72.00 lakhs. The said two drafts are Exs.P9 and P10 45 KL,J Crl.A. Nos.1391 of 2017 & batch
ii) During cross-examination, he has admitted that whenever the security forms are taken out on each working day, details of these forms will be noted in the concerned register by the concerned Officers. Thereafter, they will be handed over to the concerned clerks. At the end of the day, the unspent forms will be returned to the concerned officers, the details of which will be mentioned in the same register. He does not remember the name of the concerned Officer in the branch who was handing over and receiving these security forms to the concerned clerks. Similarly, he does not remember the names of the clerks who were receiving and handing over these security forms in this branch, to the concerned officers at the relevant time. These security forms used to be kept in an almirah in the strong room. This almirah used to have two keys, which were being in custody of joint custodians, one each. One of such keys used to be with the Officer and another used to be with the Head Cashier in this branch. Both the keys were being used to open the strong room. Similarly, both the keys were required to open the almirah containing security forms. He does not know the date from when the DD forms relating to Exs.P9 and 10 were missing from the branch. 46
KL,J Crl.A. Nos.1391 of 2017 & batch
49. PW.4 deposed that she was in-charge of Deputy Manager for three days, i.e., 18.12.2003 to 20.12.2003 since the Deputy Manager concerned was on leave. She was given the work of clearing section. While discharging the said function, she noticed two high value DDs. i.e., DDNo.828949 for Rs.77.00 lakhs and DD No.828950 for Rs.72.00 lakhs issued by Hussaini Alam Branch drawn on Ashram Road Branch presented by ICICI Bank, Ahmedabad, and those two drafts were drawn in favour of M/s. Kiran Jewellers. Since the nameof M/s. Kiran Jewellers was not familiar with their branch, she instructed PW.17 to verify whether M/s. Kiran Jewellers was their regular party or not. On verification, he informed her that M/s. Kiran Jewellers was not their regular party and further, generally, drafts issued by Hussaini Alam Branch will be hand-written, but the instant two drafts are computer type written ones. She further verified the said drafts and found that the signature of counter Signing Officer i.e., accused No.1 was tallied on both the drafts, but the signature of issuing officer i.e., PW.5 was not tallied on both the drafts.
i) However, during cross-examination, she has categorically admitted that before her verification of DDs she does not know who 47 KL,J Crl.A. Nos.1391 of 2017 & batch was issuing authority of the said DDs. She is not concerned with Exs.P12 and P13 and they do not bear her signatures. Exs.P14 is supposed to be signed by the Branch Manager. She did not make an endorsement on Ex.P14 that she was signing for the Branch Manager. Exs.P15 and P16 do not contain her signatures. Exs.P9 and P10 do not bear her signatures to show that they were received in the clearing section. There is no restriction that draft issued on a particular branch shall be presented for collection in the said branch only. She cannot definitely say whether the signatures on Exs.P9 and P10 belong to particular persons. Their branch will be having specimen signatures of employees of all the branches of SBH in India. She further admitted that she cannot definitely say who signed on Exs.P9 andP10 as Issuing Authority since she is not an Expert. She cannot definitely say who signed on Exs.P15 and P16 as the confirming authority as she is not an expert.
50. PW.5 deposed that she never worked in any capacity in SBH, Hussaini Alam Branch. Accused No.2 worked as Drafter in R.P. Road Branch during her tenure. During December, 2003, she came to know through some of her colleague Officer that her 48 KL,J Crl.A. Nos.1391 of 2017 & batch signature was forged on the drafts stolen from SBH, Hussaini Alam Branch.
i) However, during cross-examination, she has admitted that the specimen signature of each bank officer, a code number will be assigned for the entire Country. By 2003, their branch i.e., R.P. Road Branch was computerized. The book containing the specimen signatures with corresponding code numbers of the Bank Officers will be circulated to all the branches throughout the Country. All the Officers can access to those specimen signatures and code numbers. The specimen signature book will be under the control of Accountant. Apart from it, the contents of the specimen signature book will also be available in the computer which can be accessed by all the officers of the bank.
51. PW.6 deposed that on 19.12.2003, PW.7 came to him and informed that PW.2 informed him that PW.2 received a phone message from SBH, Ashram Road Branch enquiring whether two drafts i.e., Exs.P9 and P10 which were presented in Ashram Road Branch were issued by Hussaini Alam Branch or not. On that, PW.1 upon verification came to know that those two drafts were not issued 49 KL,J Crl.A. Nos.1391 of 2017 & batch from their Branch. PW.2 further informed to PW.7 that on comparison of the signatures on those two drafts, he came to know that the signature of confirming officer appearing on those two drafts belong to the Officer of his Branch, but signature of issuing officer appearing on those two drafts do not belong to any of the staff of his branch. He instructed PW.7 to send security officer i.e., LW.8 to go to Hussaini Alam Branch and bring PW.1 and also two joint custodians of the security forms i.e., accused No.1 and PW.3. Accordingly, LW.8 went and escorted PW.1, accused No.1 and PW.3 to their office.
i) He further deposed that PW.3 informed him that since few days back he noticed that the lock to which the key was under his custody was having some defect and thereby even without operating his key by operating other key, almirah could be opened. He enquired Accused No.1, who initially expressed his innocence, but later on his persistent questioning him, he confessed that he had withdrawn those 18 draft security forms from the almirah without knowledge of PW.3, about 15 days back and handed over the same to accused No.3 on the same day. Accused No.1 further informed that accused No.3 was 50 KL,J Crl.A. Nos.1391 of 2017 & batch working in Police Department. He further confessed that accused No.3 asked him to sign on those draft forms as a confirming officer and accordingly he signed on those draft forms and relative advices. When he enquired accused No.1 as to how he knows accused No.3, he told that accused No.2 who is working as sub-staff in SBH, R.P. Road Branch, have introduced accused No.2 to him. Accused No.1 further confessed that accused Nos.1, 2 and 3 and accused No.6 who was working as Head Cashier, SBH, High Court Branch, often used to meet in the residence of accused No.6 and during such meeting, they hatched a conspiracy to steal the draft security forms from Hussaini Alam Branch. Accused No.1 further confessed that at that time he was having lot of debts to third parties and was also indebted to accused No.2 a sum of Rs.30,000/-. Accused No.1 further confessed that on handing over 18 draft forms to accused No.3 at Punjagutta, he received Rs.60,000/- from accused No.3 with a promise to get further amounts.
ii) He further deposed that then accused No.1 wrote on a paper that accused No.2 introduced accused No.3 and told him to get the demand drafts on the promise of offering some money and after 51 KL,J Crl.A. Nos.1391 of 2017 & batch getting the DDs., they gave him Rs.60,000/-, promised to give some more money. Accused No.1 after writing so, signed and put the date as 19.12.2003.Ex.P36 is the purported writing of accused No.1 dated 19.12.2003 in red ink about accused No.2 introducing him accused No.6 and their asking him to get DDs. However, PW.6 was not able to say who wrote the same. Accused No.1 purportedly wrote another paper i.e., Ex.P38 stating that he borrowed money from money lending institutions.
iii) He further deposed that PW.7 informed him that out of 18 demand drafts, 8 were presented and payments were effected i.e., Rs.3.97 Crores. The fate of the remaining 6 drafts could not be identified.
iv) During cross-examination, he categorically admitted that Hussaini Alam Police did not examine him. He did not receive any written complaint from PW.2 regarding the missing of 18 demand draft forms. If one of the joint lockers was not working, it was the duty of concerned joint custodian to report to his higher officials. PW.3 did not bring to his notice about the defect in one of the dual key system which was in his custody till 19.12.2003. PW.3 did not 52 KL,J Crl.A. Nos.1391 of 2017 & batch intimate him about defective key system in writing. Ex.P36 was not handed over by him to CBI Officers. As long as Exs.P36 to P39 were in his custody, the writings in black ink appearing on Exs.P36 were not there on it. He did not give any questionnaire to accused No.1 to give his answers. He cannot say why accused No.1 had written matter on four different pages i.e., Exs.P36 to P39 instead of on a single paper. He has no power to take into custody of any bank officer and he has not vested with any magisterial powers.
v) He further admitted that in Ex.P36, it is not mentioned that accused No.3 is working in police department. Initially, when he summoned PW.2, PW.3 and accused No.1 to his cabin, several bank officers were present. Initially, accused No.1 did not admit his guilt. Accused No.1, PW.2 and PW.3 were escorted and brought to his chamber by the security officer. There is no mention in Exs.P36 to P39 that they were written voluntarily by accused No.1 and that he was in a peaceful and relaxing state of mind. In Ex.P36, it is not mentioned that accused No.3 asked accused No.1 to sign on the drafts forms as confirming officer and accordingly he signed on the drafts and related advices. In Ex.P36, it is not mentioned that when he 53 KL,J Crl.A. Nos.1391 of 2017 & batch enquired accused No.1 as to how he knows accused No.3, he told that accused No.2 who works as sub-staff in R.P. Road Branch, introduced accused No.3 to him. In Ex.P36, what is missing is only "when I enquired accused No.1", but the remaining part is there. In Exs.P36 to P39, it is not mentioned that accused No.1 further confessed that he, accused No.2, 3 and 6 often used to meet in the residence of accused No.6.
52. PW.7 deposed that on coming to know about missing of 18 blank demand draft forms on 19.12.2003, he informed the said fact to PW.6 who instructed him to send security officer (LW.8) to Hussaini Alam Branch to escort PW.2 and two joint custodians of the security forms i.e., PW.3 and accused No.1. Accordingly, LW.8, on the instructions of PW.7, went to Hussaini Alam Branch, escorted PW.2, PW.3 and accused No.1 to Zonal Office. PW.6 and PW.7 asked PW.3 and accused No.1 as to how the drafts could be missed as they were the joint custodians of the security forms. Initially, both of them pleaded their ignorance.PW.6 personally enquired PW.3 and accused No.1. Then, PW.6 informed PW.7 about confession of guilt by accused No.1 and handing over of 18 blank demand draft forms to 54 KL,J Crl.A. Nos.1391 of 2017 & batch accused No.3 on receipt of Rs.60,000/-. PW.6 also showed Exs.P36 to P39, written statements given by accused No.1.
i) He has further deposed that on 20.12.2003, he visited Hussaini Alam Branch and verified the registers and draft leaves book regarding the missing of 18 draft forms and personally came to know that 18 drafts were missing. He then inspected the security almirah, wherein security forms were preserved. It was having a dual locking system. The two joint custodians will have one key each with them. On inspection, he noticed that while the almirah could be locked with the operation of both the keys, it could be opened with the help of only one key. This fact was not brought to the notice of the Regional Office by the Hussaini Alam Branch. Then, he issued a memo dated 06.01.2004 to accused No.1 and PW.3 calling their explanation. Accused No.1 was placed under suspension w.e.f. 20.12.2003.
ii) During cross-examination, he has admitted that both the joint custodians of the security forms shall be presented at the time of opening of almirah containing security forms. Exs.P9 and P10 are seen by him for the first time in the Court on the day of his deposition. Exs.P36 to P39 do not contain his signatures to show that he was 55 KL,J Crl.A. Nos.1391 of 2017 & batch present in the Regional Office and that he has seen them on 19.12.2003. One set of keys of strong room and almirah of one Branch will be maintained with another branch and a record will be maintained to that effect.
53. The aforesaid depositions would reveal that both PW.3 and accused No.1 are joint custodians of the almirah. They will have one key each. There was some problem with the key to open the said almirah. The said fact was not informed to the Higher Officials. As discussed supra, PW.2 during his cross-examination categorically admitted that the stationery pertaining to the security forms will be kept open in an almirah having two keys and each custodian will hold one key. The said almirah will be kept in a chest and the chest will also have two keys possessed by one joint custodian and Head Cashier. The almirah and chest cannot be opened without using both the keys. At the relevant time, PW.3 was in-charge of the drafts section. Internal audit to their branch will be held once in 12 to 18 months. Verification and income leakage audit will be held once in a year in their branch.
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54. PW.3 also deposed in the same lines. However, during cross-examination, he has admitted that the security forms used to keep in an almirah in a strong room, the said almirah used to have two keys for strong room in this branch, one of such keys used to be with the Officer and another used to be with the Head Cashier in the Branch. Both the keys were being used to open the strong room. Both the keys were required to open almirah containing security forms. He has not stated about the date from when DD forms relating to Exs.P9 and P10 were missing from the branch and he has not stated about the name of the concerned Officer in the branch who was handing over and receiving the security forms to the concerned clerks and the clerks who were receiving and handing over those security forms in the branch at the relevant point of time. Even PW.4 during cross- examination categorically admitted that she cannot definitely say as to whether the signatures on Exs.P9 and P10 belong to particular persons, their branch will be having specimen signatures of the employees of all the Branches of SBH in India, she cannot definitely say who signed on Exs.P9 and P10 as Issuing Authority and that who signed on Exs.P15 and P16 as Confirming Authority since she is not 57 KL,J Crl.A. Nos.1391 of 2017 & batch an Expert. Thus, accused No.1 was implicated in the present case basing on his alleged confession before PW.6 and trial Court recorded conviction against him relying on the said extra-judicial confession made by accused No.1 before PW.6 and Exs.P36 to P39.
55. Extra-judicial confession is a weak piece of evidence. Relying on the said extra-judicial confession, conviction cannot be recorded. It should be supported by other corroborative and cogent evidence.
56. In the present case, there is no direct evidence and entire case rests on circumstantial evidence. However, the said circumstances relied upon by the prosecution shall form a complete chain. If there is a break of events, conviction cannot be recorded.
57. As discussed above, there is missing of link. The prosecution failed to prove the meeting of minds of accused No.1, 2, 3 and 6 to prove the conspiracy. Though the aforesaid witnesses stated that accused Nos.1, 2 and 3 used to meet accused No.6 at his residence and discussed about the said conspiracy during the said meetings, the trial Court considering the very same evidence, acquitted accused No.6 and convicted accused Nos.1, 3 and 4.
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58. In paragraph No.52 of the impugned judgment, the trial Court observed that Ex.P36 is a statement stated to be in the hand- writing of accused No.1 in red ink. Its contents are to the effect that Mr. Vijay Kumar met him and introduced accused No.3. Its contents are also to the effect that both of them told him to get the demand drafts, offering some money and that after getting demand drafts, they gave him Rs.60,000/- promising to give some more money. There is signature attributed to accused No.1 with date 19.12.2003 on it.
59. In subsequent paragraphs i.e., from paragraph Nos.53 to 57 of the impugned judgment, the trial Court referred to Exs.P37 to P39 and deposition of PW.6. But, trial Court failed to consider that accused No.1 was brought to Zonal Office and initially he pleaded ignorance and thereafter he confessed and written Exs.P36 to P39 as stated by the aforesaid witnesses.
60. Even PW.7 deposed that when PW.6 enquired accused No.1 and PW.3 about missing of draft forms, they have pleaded ignorance initially and, therefore, PW.6 sent PW.7 and others out of his cabin and enquired with accused No.1 and PW.3 separately. He also stated that PW.6 informed him that accused No.1 confessed his 59 KL,J Crl.A. Nos.1391 of 2017 & batch guilt. Except the same, there is no other corroborative evidence to support the prosecution.
61. As discussed above, extra judicial confession is a weak piece of evidence and conviction cannot be recorded basing on the same. It should be supported by some other corroborative and cogent evidence. In the present case, there is no corroborative and cogent evidence. Thus, prosecution failed to prove the guilt of the accused by producing cogent evidence and though an important link is missing, the trial Court recorded conviction against accused relying on deposition of PW.6 and Exs.P36 to P39.
62. Ignoring the aforesaid admissions of PWs.1 to 6, trial Court referring to Section - 47 of the Indian Evidence Act held that prosecution has successfully proved the guilt of the accused. The said finding of the trial Court is erroneous.
63. In paragraph No.274 of the impugned judgment, the trial Court observed that though there is evidence proving the fact that Exs.P9, P10, P18 to P25, P32 and P33,where the signature of accused No.1 as counter-signing officer, it cannot be a circumstance by itself to make out that accused No.1 abetted accused No.4 in the process, in 60 KL,J Crl.A. Nos.1391 of 2017 & batch making use of these forged and fabricated demand drafts; particularly, when his role along with accused No.3 is proved and that of accused No.4 as a part of a grand design in criminal conspiracy that he had stolen these blank demand draft forms and who subscribed his signature attracting a charge under Section - 120B of IPC he cannot be punished for the charges under Sections - 171 read with 107 or under Section - 468 read with 107 of IPC. The said findings of the trial Court are self-contradictory.
64. It is also apt to note that in paragraph No.275 of impugned judgment, the trial Court held that there is no proof as to who forged these demand drafts though their nature as forged instruments is well- established in this case. Hence, a charge under Section - 468 read with 511 of IPC cannot stand. Similarly, charge Nos.9 and 12 against accused No.4 for the offence under Section - 468 read with 511 of IPC cannot stand.
65. The trial Court in paragraph No.276 held that there is no evidence to connect accused Nos.5 and 6 to any of these instances adduced by the prosecution and hence they are entitled for acquittal in respect of all charges set out against them.
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66. The said findings of the trial Court are self-contradictory, without any basis and not on consideration of the evidence on record.
67. As discussed above, there is no dispute that in the present case, there is no direct evidence and the entire case rests on circumstantial evidence. The said fact was also mentioned by the trial Court in paragraph No.262 of the impugned judgment. Even then, without considering the entire evidence on record including admissions of the aforesaid witnesses i.e., PWs.1 to 6 and other witnesses, the trial Court recorded conviction against the appellants herein - accused Nos.1, 3 and 4, holding that the circumstances show brought out against them form a complete chain without any missing link and they point out and led to only one inference of their criminal culpability relating to instances in the said case.
68. It is relevant to note that in Sharad Birdhichand Sarda v. State of Maharashtra 18, the Apex Court laid down the following five golden principles to record conviction relying on circumstantial evidence.
18 . (1984) 4 SCC 116 62 KL,J Crl.A. Nos.1391 of 2017 & batch "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
But, in the present case, the prosecution failed to prove the said circumstances. Even then, the trial Court recorded conviction against the appellants herein referring presumption under Section - 114 (a) of the Evidence Act.
69. Thus, the trial Court recorded conviction against accused No.1 relying on the depositions of PW.6 and Exs.P36 to P39 and also PW.103 and Exs.P.236 and P238. As discussed supra, extra judicial 63 KL,J Crl.A. Nos.1391 of 2017 & batch confession is a weak piece of evidence and it is not admissible as evidence.
70. In Chandrapal v. State of Chhattisgarh 19, the Apex Court reiterated the value of extra-judicial confession in the following words:
"11. At this juncture, it may be noted that as per Section 30 of the Evidence Act, when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. However, this court has consistently held that an extra judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra judicial confession. As held in case of State of M.P. through CBI v. Paltan Mallah, the extra judicial confession 19 . 2022 SCC OnLine SC 705 64 KL,J Crl.A. Nos.1391 of 2017 & batch made by the co-accused could be admitted in evidence only as a corroborative piece of evidence. In absence of any substantive evidence against the accused, the extra judicial confession allegedly made by the co-accused loses its significance and there cannot be any conviction based on such extra judicial confession of the co-accused."
71. Relying on the same judgment in Kalinga @ Kushal v. State of Karnataka by Police Inspector, Hubli 20, the Apex Court held that it is no more res integra that extra judicial confession must be accepted with great care and caution.
72. It is also apt to note that in Pawan Kumar Chourasia v. State of Bihar 21, the Apex Court held in paragraph No.5 and the same is as follows:
"5. As far as extrajudicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra judicial confession provided that the confession is proved to be voluntary and truthful. It should 20 . 2024 INSC 124 21 . 2023 SCC OnLine SC 259 65 KL,J Crl.A. Nos.1391 of 2017 & batch be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extrajudicial confession is corroborated by other evidence on record, it acquires more credibility. (emphasis added)"
73. Relying on the said principle, the Apex Court in Moorthy v. State of Tamil Nadu 22, held that extra judicial confession is always a weak piece of evidence and on examination of the facts of the said case, it was further held that there is serious doubt about the genuineness of the prosecution case regarding the extra judicial 22 . 2023 SCC OnLine SC 1027 66 KL,J Crl.A. Nos.1391 of 2017 & batch confession. Therefore, the prosecution case about the extra judicial confession does not deserve acceptance.
74. In Sahadevan v. State of Tamil Nadu 23, the Apex Court after referring to various judgments held in paragraph No.16, which is as follows:
"22. Upon a proper analysis of the above- referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused.
i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.23
. (2012) 6 SCC 403 67 KL,J Crl.A. Nos.1391 of 2017 & batch
iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in accordance with law."
75. Relying on the said judgment, the Apex Court in Nikhil Chandra Mondal v. State of West Bengal 24, held that extra judicial confession is a weak piece of evidence. It has been held that where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It is a rule of caution where the Court would generally look for an independent reliable corroboration before placing any reliance upon such extra judicial confession. There is no doubt that conviction can be based on 24 . (2023) 6 SCC 605 68 KL,J Crl.A. Nos.1391 of 2017 & batch extra judicial confession, but in the very nature of things, it is a weak piece of evidence.
76. In the light of the aforesaid law laid down by the Apex Court, coming to the facts of the case on hand, as discussed above, the deposition of PW.6, PW.7 and PW.3 would show that accused No.1 was brought to the Zonal Office escorted by Security Officer i.e., Subba Rao. Though the said Subba Rao was cited as LW.8, he was not examined by the prosecution. Even PW.7 in his cross- examination categorically admitted that on his instructions, Subba Rao went to Hussaini Alam Branch and escorted accused No.1, PW.3 and PW.2 to the Zonal Office. He has also further deposed that in the chamber of PW.6, PW.2 narrated the facts with regard to receipt of information of issuance of two drafts from branch etc., he and PW.6 asked PW.3 and accused No.1 as to how the drafts could be missed as they were the joint custodians of the security officers. There were some other officers. They pleaded ignorance. Thereafter, PW.6 enquired accused No.1 and PW.3 personally separately by sending all others out of his chamber. He has obtained Exs.P36 to P39 from 69 KL,J Crl.A. Nos.1391 of 2017 & batch accused No.1 and the same were with PW.6 for half an hour and thereafter he has handed over the same to PW.7.
77. Thus, the entire case of the prosecution against accused No.1 is that he has confessed his guilt before PW.6 with regard to missing of forms and admission of the same in Exs.P36 to P39.
78. It is relevant to note that in Ex.P1 -complaint lodged by PW.1 with the Superintendent of Police, CBI dated 20.12.2003, it is specifically stated that on 'interrogation' of accused No.1, he has confessed to having surreptitiously removed the blank demand drafts and handed over to accused No.3, who was introduced to him by accused No.2 for certain monetary consideration. It is further stated that immediately, the Branch has lodged a police complaint against accused No.1 and P.S. Hussaini Alam had registered a case in Crime No.201 of 2003. The police officials have since arrested accused No.1 and are on the look for other co-conspirators.
i) It is further alleged that the facts mentioned in Ex.P1 discloses commission of fraud by accused No.1, joint custody officer by abuse of official position for wrongful pecuniary benefits to himself and fraudulent gain to a set of outsiders in connivance with 70 KL,J Crl.A. Nos.1391 of 2017 & batch accused Nos.2, 3 and 6. The addresses of the payees of the stolen fraudulent drafts and staff members are also furnished. It is further stated that the said complaint was lodged in pursuance of the directions contained in Special Chapter on Vigilance Management in Public Sector Banks as the amount involved is more than Rs.5.00 Crores and interstate gang of fraudsters located in Jaipur, New Delhi, Ahmedabad and Hyderabad are involved.
ii) It is further stated that they have discussed the matter with the Police Commissioner at Hyderabad, and he has suggested considering the amount involved and inter-state ramifications, the case should be handled by CBI, BSFC. Once they hear from CBI, they will hand over the case papers, material and culprits to CBI.
iii) It is also relevant to note that in Ex.P40 - suspension order of accused No.1, it is mentioned that 18 security forms from continuous stationery have been missing from the custody of accused No.1 at Hussaini Alam Branch. Some of the security forms have been forged and paid. Accused No.1 has not exercised due diligence in maintaining custody of the security forms.
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79. The afore stated facts would reveal that accused No.1 was brought to the Zonal Office escorted by Mr. Subba Rao, Security Officer, interrogated by PW.6 and obtained Exs.P36 to P39 from accused No.1 and handed over accused No.1 to Hussaini Alam Police along with complaint who in turn registered a case in Crime No.201 of 2003.
80. PW.105 - Sub Inspector of Police, Hussaini Alam P.S., deposed that on 19.12.2003 at about midnight i.e., between the night of 19.12.2003 and 20.12.2003, when he was in his police station at Hussaini Alam, he received a complaint from PW.2 relating to a fraud committed in SBH, Hussaini Alam Branch pertaining to DDs. Basing on the said complaint, he registered a case in Crime No.201 of 2003 (Ex.P8) against accused Nos.1, 3 and 2.
i) During cross-examination, he admitted that he received information from PW.2 at 00:45 hours on 19.12.2003. As per Ex.P8, G.D. entry was made at 9.54 A.M. on 20.12.2003. The Officer whose signature is seen at page No.6 of Ex.P8 bearing date 26.12.2013 (sic.2003) under the endorsement dated 26.12.2003 at 13:30 hours, described as Inspector of Police, Admn. CCS, DD, Hyderabad, was 72 KL,J Crl.A. Nos.1391 of 2017 & batch not working in Hussaini Alam P.S. as on that date. The distance between the Hussaini Alam P.S. and SBH, Hussaini Alam Branch was less than half a kilometer. It takes about 5-10 minutes to reach the Police Station from the Bank. As per contents of Ex.P8, the alleged fraud had come to the knowledge of PW.2 about 10 days prior to its date. There were others who accompaniedPW.2 when the complaint was presented to him. He does not remember their names, they were 4 to 5 individuals who had accompaniedPW.2 to P.S., and he cannot say the designations of the said individuals and they are bank employees.
ii) He has further admitted that Ex.P8 is not enclosed with a copy of complaint presented by PW.2 and there is no mention about enclosures, if any, to Ex.P8 - complaint.
81. PW.107 - Inspector of Police, Hussaini Alam Police Station, deposed that his investigation revealed that SBH, Hussaini Alam Branch came to know of missing DDs. on 18.12.2003 at 4.00 P.M. Accused No.1 was produced in his office by the Bank Authorities on 19.12.2003 at 11.00 A.M. He has visited the said Branch on 20.12.2003 at 12.00 noon. He did not conduct any 73 KL,J Crl.A. Nos.1391 of 2017 & batch panchanama. He did not verify relevant entries. He did not collect any documents. He is not acquainted with the procedure. PW.3 did not state before him that Exs.P9 and P10 drafts were not issued maintaining continuity in serial numbers, that they appear as if they were taken out from the bunch of blank demand drafts from the bottom since they bear last numbers in that bunch of blank demand drafts and that they felt those two DDs were not issued by Hussaini Alam Branch.
82. Thus, the said procedure adopted by PW.6 and PW.7 is uncalled for and is not acceptable in law and also as per Special Chapter on Vigilance Management in Public Sector Banks and procedure laid down therein. PW.6 cannot interrogate accused No.1 by keeping the Security Officer outside his cabin and obtain Exs.P36 to P39. He cannot say that accused No.1 has confessed his guilt before him.
83. In view of the above, prosecution cannot contend that they have proved the guilt of the accused beyond reasonable doubt.
84. Perusal of Exs.P36 to P39 would reveal that hand-writing mentioned therein is not clear and it was written in a fear and scary 74 KL,J Crl.A. Nos.1391 of 2017 & batch manner. There is no explanation from PW.6 as to obtaining of Exs.P36 to P39 on separate sheet of papers. There is no explanation from PW.6 as to the change of ink i.e., red and blue. There is also no explanation from PW.6 as to why he has obtained the details of personal loans taken by accused No.1 from individuals and institutions and also with regard to obtaining details with regard to credit cards held by accused No.1.
85. As rightly stated by PW.1 in Ex.P1 - complaint lodged with Superintendent of Police, CBI, PW.6 interrogated accused No.1 by keeping PW.7, PW.3 and Mr. Subba Rao, Security Officer and others outside his Cabin and obtained Exs.P36 to P39. Therefore, the said extra judicial confession said to have been made before PW.6 by accused No.1 and Exs.P36 to P39 are inadmissible and they are not supported by any independent corroborative and cogent evidence. Thus, recording conviction against accused No.1 basing on the same is unsustainable.
86. PW.103 i.e., Government Examiner of Questioned Documents, Hyderabad, in his evidence, deposed that he has carefully and thoroughly examined the questioned writings and signatures with 75 KL,J Crl.A. Nos.1391 of 2017 & batch the corresponding admitted writings and signatures by using the hand- writings, science, principles, such as "like with like" and "side by side comparison". He has utilized the scientific instruments, such as magnifying glass, stereo microscope and video spectral, comparator - 5000. He has arrived at the conclusion that the red enclosed writings marked C1 to C4 (Exs.P36 to P39 respectively) as well as the blue enclosed writings marked A1 to A23, A2/1, A3/1, A4/1 (Ex.P42), were all written by one and the same person i.e., Sri A. Narsing Rao. He has separately assigned reasons, for his conclusions stated above. His opinion is Ex.P236. It bears his signature.
i) However, during cross-examination, he has admitted that he received training in his office itself, in comparison of hand writings and in detection of forgeries. The best standards of comparison are those having individual writings, characteristic features that are similar with the disputed writings/signatures. It is not possible to disguise the entire characteristics of signatures or writings. He compared signatures and hand writings, since original documents are available. However, he had taken out photographs of such material, for his office record purpose.
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ii) He has further admitted that there will be natural variations in the signatures and hand writing of an individual due to passage of time. But, there will not be any difference or variation in fundamental characteristics. In Ex.P238 reasons assigned by him in support of his opinion in Ex.P236, he has stated the natural variations. In Ex.P236 - opinion, he has not stated the alphabets taken into consideration for the purpose of examination of likes with likes. He has stated about it in his reasons in Ex.P238. However, he has denied to a suggestion that his opinion in Ex.P236 along with reasons in Ex. P238 is unscientific and unbiased.
87. It is relevant to note that Expert Opinion with regard to genuinenity of signatures will be obtained by the trial Court to assist it to come to a just conclusion. It is also a weak piece of evidence. It has to be supported by corroborative and cogent evidence. Expert evidence must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to base a conviction solely on expert opinion without substantial corroboration. This type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself 77 KL,J Crl.A. Nos.1391 of 2017 & batch form the basis for a conviction. The said principle was held by the Apex Court in Magan Bihari Lal v. State of Punjab 25 and Bhagwan Kaur v. Maharaj Krishan Sharma 26.
88. Ignoring the said legal principle and also admissions made by PWs.1 to 6, 103, the trial Court erroneously recorded conviction against accused No.1.
89. It is also relevant to note that the findings of the trial Court in paragraph Nos.58, 59 and 60 are contrary to each other.
90. As discussed above, there is no direct evidence in the present case and the entire case rests on circumstantial evidence. But, the chain of circumstances relied upon by the prosecution missed the link at every stage.
91. In paragraph No.39, the trial Court observed that according to the prosecution, it was an attempt to encash forged demand drafts. In paragraph No.50, the trial Court only extracted testimony of PW.6 and ignored admissions made by him during cross-examination. The trial Court also ignored the procedure adopted by PW.6 calling 25 . AIR 1977 SC 1091 26 . (1973) 4 SCC 46 78 KL,J Crl.A. Nos.1391 of 2017 & batch accused No.1 to Zonal Office escorted by Security Officer, interrogated him in his cabin and obtained Exs.P36 to P39. Thereafter, accused No.1 was handed over to the police at midnight. The said facts were not considered by the trial Court.
92. The trial Court also failed to consider the admissions made by PW.103 - hand writing expert and that opinion of hand writing expert is weak piece of evidence, conviction cannot be recorded relying on the same, unless there is corroborative and cogent evidence.
93. Finding of the trial Court in paragraph No.60 of the impugned judgment that as seen from statements of PW.6 and contents of Ex.P36, no specific role of accused No.6 was attributed that he was a party to the exchange of stolen blank demand draft forms from Hussaini Alam Branch, Hyderabad, between accused Nos.1 and 3 at the instance of accused No.2. When the fact that Ex.P36 itself did not reveal the name of accused No.6, it is rather difficult to accept the version of prosecution that accused No.6 was party to the said transactions. It is a circumstance to favour accused No.6 in the said case. The further finding of the trial Court in paragraph No.61 that the statement either made to PW.6 or in Ex.P36 79 KL,J Crl.A. Nos.1391 of 2017 & batch of accused No.1 stand in the nature of confessions, though extra judicial in nature, accused No.1 has denied these statements and also authorship of Exs.P36 to P39.
94. In paragraph No.68 of the impugned judgment, the trial Court observed that the statements elicited in cross-examination of PW.6, either on behalf of accused No.1 or accused No.3, did not in any manner affect the credibility to be attached to what has been deposed by PW.6 with reference to confession of accused No.1 and Exs.P36 to P39 or nature of Ex.P36 itself. Though the statements which accused No.1 had made to PW.6 and contents of Ex.P36 are retracted at the trial by him, they should be taken into consideration. There is no bar in law that those statements in the nature of extra judicial confession shall not be considered by the Court. In fact, such extra judicial confessions, and even if made against co-accused, under Section - 30 of the Evidence Act are relevant and admissible in evidence. They also form a sound basis to lay conviction against the accused. The said findings of the trial Court are contrary to law and principle laid down by the Apex Court.
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95. Section - 30 of the Evidence Act has no application to the facts of the present case. According to the prosecution, confession was made by accused No.1 before PW.6.
96. The further finding of the trial Court in paragraph No.62 of the judgment that when the evidence of PW.6 is considered in this context, the suggestion on behalf of accused No.1 becomes meaningless; added to it, it has been elicited from PW.6 in the cross- examination of accused No.1 that Exs.P36 to P39 were in his custody for about half an hour, which he later handed over to PW.7, is also contrary to evidence and law laid down by the Apex Court.
97. The trial Court failed to consider that the depositions of PW.6 and PW.7 have to be considered conjointly and not in isolation.
98. The further finding of trial Court in paragraph No.69 that on 19.12.2003, when accused No.1 along with PWs.2 and 3 came to the office of PW.6, apparently there was no force or coercion or any pressure on him etc., as discussed supra, the said finding is contrary to the evidence on record.
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99. The further finding of the trial Court in paragraph No.71 that PW.6 interviewed accused No.1 is also contrary to the evidence. The observation of the trial Court in paragraph No.72 that it was not suggested to PW.6 that PW.6 threatened and coerced accused No.1, so as to confess the guilt by accused No.1 and also obtained Exs.P36 to P39 is contrary to the evidence and law. As discussed supra, in Ex.P1, it is stated by PW.1 that on interrogation, accused No.1 confessed and admitted his guilt. The said aspect was not considered by the trial Court.
100. It is settled law that in criminal jurisprudence, however, grave the offence may be, on suspicion, conviction cannot be recorded and the prosecution has to prove the guilt of the accused beyond reasonable doubt. If two views are possible, the view which is beneficial to the accused shall be considered. The benefit of doubt shall be given to the accused always.
101. The finding of the trial Court in paragraph No.76of the impugned judgment that there is no mention in Exs.P36 to P39 in the nature of certification by accused No.1 that he wrote them voluntarily in a composed and relaxed state of mind is also not a circumstance by 82 KL,J Crl.A. Nos.1391 of 2017 & batch itself, accused No.1 did it on his own voluntary making them highly reliable piece of evidence including against accusedNo.3. Therefore, the evidence so let in has to be acted upon against accused Nos.1 and 3 and retracting the said statement at the trial by accused No.1 has no bearing in the proved circumstances is contrary to the principle laid down by the Apex Court and the provisions of Indian Evidence Act.
102. It is also apt to note that the trial Court failed to consider the deposition of PW.5, second signatory to the said demand draft forms. She deposed that during December, 2003, she came to know through some of her colleague officers that her signature was forged on the drafts stolen from SBH, Hussaini Alam Branch. During cross- examination, she has admitted that the book containing the specimen signatures with corresponding Code Numbers of the Bank Officers will be circulated to all the Branches throughout the Country. All the officers can access through those specimen signatures and Code Numbers. The specimen signatures book will be under the control of Accountant. Apart from it, the contents of the specimen signatures book will also be available in the computer which can be accessed by all the Officers of the Bank. Even then, no effort was made by the 83 KL,J Crl.A. Nos.1391 of 2017 & batch Investigating Officer to ascertain the said facts and to prove that her signature was forged. However, the trial Court acquitted the accused for the offence under Section - 468 of IPC.
103. As discussed above, there is no dispute that accused No.1 being the Deputy Manager of SBH, Hussaini Alam Branch, Hyderabad, at the relevant point of time is a public servant as defined under Section - 2 (c) of the Act, 1988.
104. In S.P. Bhatnagar v. State of Maharashtra 27, relying on its principle held by it in M. Narayanan Nambiar v. State of Kerala [(1963) Supp. 2 SCR 724] and Major S.K. Kale v. State of Maharashtra [AIR 1977 SC 822], the Apex Court held that the abuse of a position in order to come within the mischief of the Section must necessarily be dishonest, so that it may be proved that the accused caused deliberate loss to the Department. It is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
27 . 1979 SCC (Cri.) 323 84 KL,J Crl.A. Nos.1391 of 2017 & batch
105. Section - 13 of the Act, 1988 deals with criminal misconduct by a public servant. In the light of the aforesaid discussion, prosecution utterly failed to prove the ingredients of the said offence and even then, without considering the said aspects, the trial Court recorded conviction against accused No.1 for the offence punishable under Section - 13 (2) read with 13 (1) (d) of the Act, 1988.
106. In the light of the aforesaid discussion, the prosecution also failed to prove that accused No.1 committed the offence under Section - 409 of IPC. Without considering the aforesaid aspects, the trial Court convicted accused No.1 for the offence under Section - 409 of IPC erroneously. The findings of the trial Court convicting accused No.1 are contrary to the evidence, both oral and documentary.
107. The finding of the trial Court in paragraph No.100 of the impugned judgment that the prosecution has also proved that accused No.1 was responsible for the theft and he had handed them over to accused No.3 in the presence of accused No.2; thus, accused No.3 is proved that he had received stolen property, stood in the possession of 85 KL,J Crl.A. Nos.1391 of 2017 & batch receiver of the stolen property is contrary to evidence, both oral and documentary.
108. It is apt to note that in paragraph No.245 of the impugned judgment, the trial Court observed that in the absence of proof of relevancy of evidence so let in by the prosecution against accused No.3 has no consequence. The contentions of accused No.3 that his identity is not established, he has no acquaintance with accused No.1 or accused No.4, prosecution did not let in any evidence against him on the said aspect, no call data of his mobile phone or of other accused is produced in evidence, nor investigation was directed to know who wrote the contents of the DDs, who handed over them to the persons who had deposited them in the banks cannot be accepted. In fact, when the accused specifically took the said defence during trial, therefore, the prosecution has to prove the identity of accused No.3. In the present case, the prosecution failed to prove the identity of accused No.3, failed to collect call data. Even then, the trial Court recorded conviction against him relying on extra judicial confession said to have made by accused No.1 before PW.6 and Ex.P36. The said fact would reveal from the findings of the trial Court in paragraph 86 KL,J Crl.A. Nos.1391 of 2017 & batch No.245 of the impugned judgment, wherein the trial Court held that the role of accused No.3 is specifically stated in Ex.P36, in the confession statement of accused No.1 to PW.6. The trial Court further held that the evidence of PW.6 is clear and categorical in this respect, whose testimony is highly reliable; name of accused No.3 appeared in Ex.P8 - FIR, which also refers the confession of accused No.1 to PW.6. The trial Court further held that in the presence of such credible and acceptable evidence on record, want of call data or other circumstances pointed for accused No.3 cannot affect the version of prosecution against him.
i) As discussed above, accused No.1 was brought to the cabin of PW.6 by the Security Officer, was interrogated by PW.6, in his cabin by sending others including PW.7 and PW.3 out, keeping Security Officer outside his cabin and obtained Exs.P36 to P39. PW.6 is not having such power. Perusal of handwriting in Exs.P36 and 37 would reveal that the same were obtained by force and coercion. He was handed over to the Police, Hussaini Alam Police Station in the midnight. Thus, the said findings of the trial Court are contrary to the 87 KL,J Crl.A. Nos.1391 of 2017 & batch principle laid down by the Apex Court, the provisions of the Indian Evidence Act and contrary to the evidence.
109. The further finding of the trial Court in paragraph No.246 of the impugned judgment that the prosecution has also examined PW.65 and PW.66 to prove that one Jabbar Singh had a mobile phone bearing No.9440052060, call details in Ex.P141 from 15.11.2003 to 31.12.2003 are brought on record that identity of Jabbar Singh concerned to the said mobile phone number of BSNL is not proved. The said Jabbar Singh was not examined. Ex.P141 is not supported by a certificate issued under Section - 65B of the Indian Evidence Act.
110. In paragraph No.248 of the impugned judgment, the trial Court held that in the absence of producing necessary call data record, that shall be admissible in evidence, the efforts so made by the prosecution examining all these witnesses relating to phones of accused No.3, accused No.4 and others did not serve any purpose in this case.
111. In paragraph No.249 of the impugned judgment, the trial Court observed that PW.9 is having certain disputes with regard to immovable property at Bengaluru, even then the prosecution 88 KL,J Crl.A. Nos.1391 of 2017 & batch examined him. The prosecution did not explain the purpose of examining the said witness and it bears no relevancy. Even then, the trial Court recorded conviction against accused No.3.
112. As discussed above, in Ex.P1 - complaint itself PW.1 categorically stated that during interrogation, accused No.1 confessed his guilt. Accused No.1 was handed over to Police of Hussaini Alam P.S. in the midnight. The further finding of the trial Court in paragraph No.255 with regard to retention of stolen property by accused No.3 is contrary to evidence, both oral and documentary. In fact, the presumption under Section - 114 (a) of the Evidence Act has no application to the facts of the present case. The prosecution has to prove the guilt of the accused beyond reasonable doubt and burden lies on the prosecution to prove the same. The trial Court completely ignored the said aspects while convicting accused No.3.
113. The further finding of the trial Court in paragraph Nos.250, 251 and 266 of the impugned judgment with regard to accused No.1 obtaining loans and Exs.P36 to P39 is contrary to the principle laid down by the Apex Court and also provisions of the Evidence Act. As discussed supra, Exs.P36 to P39 were obtained by 89 KL,J Crl.A. Nos.1391 of 2017 & batch PW.6 while interrogating accused No.1 in his cabin by keeping the Security Officer outside the cabin. Therefore, the said findings are contrary to the record.
114. The finding of the trial Court in paragraph No.266 of the impugned judgment is contrary to Section - 221 of Cr.P.C. The said Section - 221 of Cr.P.C. is reproduced hereunder for better appreciation of the case and the same is as under:
"221. Where it is doubtful what offence has been committed.- 1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once:
or he may be charged in the alternative with having committed some one of the said offences. (2) It in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-
section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it."
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115. To prove the guilt of accused No.4, the trial Court relied on the depositions of PWs.22, 24, 25, 28, 30, 40, 48, 49, 85, 86, 88 & 108 and held that accused No.4 committed cheating by using the aforesaid forged forms as genuine.
116. PW.108 - Additional Superintendent of Police, BS & FC, Bengaluru, during cross-examination, admitted as follows:
i) PW.91 stated before him as mentioned in Exs.D1 to D7.
PW.88 stated before him as mentioned in Exs.D8 to D16. The Payees under all the DDs concerned to the said case were examined as witnesses. Those who encashed the said DDs are all witnesses in the said case. The persons who physically delivered these DDs to the payees are also witnesses in the case. The unused stolen DDs pertaining to SBH, Hussaini Alam Branch were not recovered during investigation. The payees of the DDs concerned to the present case had purchased gold from different banks. No gold was recovered in the said case. He did not get the bank accounts of those who had encashed those DDs concerned to the case, frozen. It is not 91 KL,J Crl.A. Nos.1391 of 2017 & batch specifically stated in the charge sheet as to authorship of alleged forged DDs. The reason is that it could not be detected.
ii) The exercise to detect forged nature of documents usually is by obtaining the specimen signatures and hand-writings of suspects. He did not obtain the signatures of accused No.4 in this case either himself or through Court during investigation.
iii) Whenever the customers/guests check-in, they have to enter their names and other particulars in a Register maintained by the Hotel known as Guests/Occupancy Register. In Some Hotels, only Guest column will be filled up by guests/customers and in some hotels, no separate Guest Register/Occupancy Register will be maintained. The Hotels must supply a copy of list of guests who had checked in, every day to the jurisdictional police station. He did not collect any document during his investigation, from Hotel, Ramada Manohar, Hyderabad, showing that PW.88 had himself filled up such document and furnished to the Hotel when he checked in. None of the witnesses examined by him relating to Hotel Ramada Hotel stated that the said Hotel did not maintain guest/occupancy register. He did not enquire with Samuel, Inspector, as to why he did not collect the said Register 92 KL,J Crl.A. Nos.1391 of 2017 & batch from Hotel Ramada Manohar during his investigation. He did not make any attempt to get a copy of list of guests who had checked into the said Hotel from jurisdictional police station. Whenever room service is provided, guests have to sign on the bills or vouchers issued for the said purpose undertaking to pay or upon paying necessary charges. He has not collected any evidence in proof of the same. He did not examine PW.88 after receiving opinion from PW.102 with reference to Q64 and Q65 seeking his explanation. He did not confront Q64 and Q65 signatures to PW.88 in the course of examination.
iv) PW.88 came to Hyderabad by Air from Mumbai on 14.12.2003. He could not secure the passenger manifest and flight coupon relating to the said travel of PW.88. In respect of PW.88 travel, the concerned Airlines did not come forward to furnish the passenger manifest and flight coupon. He did not examine the landlord of Ahuja Estates, Abids, Hyderabad. He did not examine any Officer of Jet Airlines, Bombay, to show that the said Airlines could not trace out the details relating to air-ticket purchased by PW.88 for his travel from Bombay to Hyderabad. PW.88 was not in Hyderabad 93 KL,J Crl.A. Nos.1391 of 2017 & batch on 13.12.2003 as per his investigation. PW.88 had received two DDs concerned to his case on 13.12.2003 for delivering gold. These DDs were collected by PW.28 at Delhi on 13.12.2003 not by PW.88.PW.85 was in Delhi on 13.12.2003 evening. He could not collect any material about the journey of PW.88 from Hyderabad to Delhi on 15.12.2003.
v) The forged DDs pertaining to the present case were made use of purchase gold by M/s. MDR Jewellers, M/s. Kiran Jewellers and M/s. Bhagwati Agencies presenting them in the bank and against their presentment, the bank released gold. None of the banks who parted gold against these forged DDs had given a complaint either to CBI or to local police. He did not verify the claim of PW.88 during investigation that he had presented a complaint in a police station at Manek Chowk, Jaipur, visiting the said P.S. According to his investigation, PW.85 and 88 handled the forged DDs and received the gold therefor. He did not occur to him during his investigation that verification of the said fact of presenting a complaint in P.S. by PW.88. As per his investigation, it did not disclose against whom PW.88 had presented the said complaint. Some of the DDs i.e., 94 KL,J Crl.A. Nos.1391 of 2017 & batch Exs.P18, P19, P22 and P23 were made use of the said purpose to purchase gold before 14.12.2003. He collected counter-foils of air tickets during his investigation. He did not collect any proof that air ticket was purchased in the name of PW.88.
117. In the light of the aforesaid admissions of PW.108, it is relevant to note that PW.88 deposed that he was running S.K. Jewellery, Jaipur, and earlier in the name and style MDR Jewellery at Jaipur. Rajesh Kumar Jain was the proprietor and PW.88 used to manage the entire business. M/s. Bhagwati Agencies, Delhi was their service provider appointed through Suresh Kutata. He met Mr. Kamlesh Agarwal at Delhi in their office and appointed their concern as their service provider for bullion business. Regular transactions went on in between them and they were making payments to M/s. Bhagwati Agencies upon which they were being supplied gold from Nova Scotia Bank, New Delhi and PEC Limited. They were delivering gold to them either at Delhi or at Jaipur through PW.28 and Mr. Ajay Gupta (not examined) on behalf of M/s. Bhagwati Agencies. M/s. MDR Jewellery had a bullion account with Nova Scotia Bank. 95
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i) He further deposed that in November, 2003, his brother-in- law (PW.85) contacted him over phones from Hyderabad and informed that a person from M/s. Balaji Jewellers, Hyderabad wanted to purchase gold from him for manufacturing jewellery in bulk quantities. He told him that he could come to Delhi with money and then purchase gold from him at Delhi as well as Jaipur. PW.85 came to Delhi on 08.12.2003 with two DDs of Rs.25.00 lakhs each on SBH, Hussaini Alam Branch, Hyderabad in Exs.P18 and P19. He asked PW.85 to deposit the said DDS in ICICI Bank in roaming account of MDR Jewellers. He delivered 8 kgs. of gold to PW.85 thereupon after two or three days at Delhi under Ex.P182, carbon copy of bill dated 09.12.2003 issued to Balali Jewellers, Abids, Hyderabad. Again PW.85 brought Exs.P20 and P21 DDs for Rs.45.00 lakhs each on 12.12.2003, asked him to deposit them in a Nova Scotia Bank, Delhi to their bullion account. He took delivery of 12 kgs. of gold on the same evening under Exs.P184 - bill dated 13.12.2003 issued to M/s. Balaji Jewelers, Abids, Hyderabad. Though the bill was raised for 15 kgs. gold, Nova Scotia bank had delivered only 12 kgs. gold after retaining 3 kgs. towards margin.
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ii) He further admitted that Exs.P22 and P23 - DDs for Rs.45.00 lakhs each were got by PW.85 to purchase gold at Delhi which he had received on 13.12.2003 and asked him to deposit in their bullion account in Nova Scotia Bank, Delhi. Ex.P185 is the carbon copy of the bill dated 15.12.2003 issued by their shop in the name of M/s. Balaji Jewellers, Hyderabad, for 15 kgs. of gold. But, the bank had delivered only 12 kgs. of gold after deducting 3 kgs. towards margin to his brother-in-law i.e., PW.85.
iii) But, the Investigating Officer failed to conduct investigation and failed to prove with regard to existence of the said M/s. Balaji Jewellers, Hyderabad. He failed to examine the owner of the premises.
118. PW.86 deposed that on receipt of phone call from his father, he went to Delhi; his father took him to M/s. Bhagwati Agencies; he gave the envelope which he brought and the said envelope was given to him by Sri Vimal Chand Jain. But, the said Vimal Chand Jain was not examined. There was DD in the said envelope.
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i) During cross-examination, he has admitted that he did not know Jabbar Singh, he did not refer to the said name in his statement given to CBI. He brought gold to Hyderabad from Delhi after he handed over DD to his father. The gold was brought in blocks, in a bag weighing a few kilograms.
119. PW.85 deposed that Jabbar Singh Raj Purohit obtained two DDs for Rs.25.00 lakhs each as Jabbar Singh and PW.85 went to Delhi to Sanjay Gupta to whom his brother-in-law asked them to give away the said DDs (Exs.P18 and P19). The said Jabbar Singh was not examined. Non-examination of the said Jabbar Singh is fatal to the case of prosecution. However, they have examined Sanjay Gupta as PW.28.
120. The deposition of PW.63 has no link to Ex.P58.
121. PW.61 deposed that Ex.P30 is the final bill of his Hotel i.e., Hotel Manohar, Airport Road, Begumpet, in respect of Room No.225 and it is in the name of accused No.4, who had stayed in the said room from 14.12.2003 and vacated on 16.12.2003. 98
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122. As discussed supra, in the present case, there is no direct evidence and the entire case rests on circumstantial evidence, but the prosecution failed to establish that the circumstances relied upon by it forming complete chain. Chain is missing at every stage.
123. The finding of the trial Court in paragraph No.256 of the impugned judgment that accused No.4 through his purported entity i.e., M/s. Balaji Jewellers, G11, Ahuja Estates, Abids, Hyderabad, had bargained for gold bars in this process basing on these forged demand drafts is contrary to evidence on record. As discussed above, PW.108, the Investigating Officer failed to conduct any investigation to find out the existence of the said M/s. Balaji Jewellers. He failed to examine the owner or any authorized person of the said Ahuja Estates, Abids, Hyderabad. He has admitted the same during cross-examination.
124. The further finding of the trial Court in paragraph Nos.268 to 270 of the impugned judgment that accused No.6 by his fraudulent and dishonest acts made SBH to suffer in the process through Accused No.1 in stealing away such blank demand draft forms etc., are contrary to evidence on record and without any basis. The same is not supported by any corroborative and cogent evidence. 99
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125. The trial Court having acquitted the accused for the offence under Section - 468 of IPC, in paragraph No.269 of the impugned judgment, held that accused No.4 had knowingly made use of Exs.P18 to P25 demand drafts along with their advices which are forged, dishonestly and fraudulently used them as if genuine for purchasing gold. The said findings of the trial Court are contrary to its findings in other paragraphs of the impugned judgment. With the said findings, the trial Court erroneously recorded conviction against accused No.4 for the offence under Section - 471 of IPC.
126. The trial Court having held in paragraph No.270 of the impugned judgment that there is proof that Exs.P9 and P10 were attempted to be made use of by accused No.4 through M/s. Kiran Jewellers in SBH, Ashram Road Branch, Ahmedabad, knowingly as if they are genuine, convicted accused No.4 for the offence under Section - 471 read with 511 of IPC erroneously.
127. In paragraph No.275 of the impugned judgment, the trial Court observed that there is no proof as to who forged these demand drafts though their nature as forged instruments is well established in this case, a charge under Section - 468 of IPC framed against accused 100 KL,J Crl.A. Nos.1391 of 2017 & batch No.4 cannot stand. Similarly, charge Nos.9 and 12 against accused No.4 for an offence under Section - 468 read with 511 of IPC cannot stand. Even then, the trial Court recorded conviction against accused No.4 for the aforesaid offences i.e., Sections - 420, 420 read with 511, 471 and 471 read with 511 of IPC.
128. As rightly contended by Mr. E. Uma Maheshwar Rao, learned counsel appearing for accused No.4 that there is nothing incriminating is found in the evidence of PW.85 and PW.88 to prove any offence against accused No.4. No material witness deposed about the role played by accused No.4 in purchase and sale of gold. In view of the evidence of PW.85, there is no possibility of PW.85 taking delivery of gold in Delhi from PW.88 on 15.12.2003.
129. The findings of the trial Court in paragraph Nos.206 and 207 of the impugned judgment are contrary to the evidence, more particularly the deposition of PW.88, who did not identify accused No.4 at all. PW.55 and PW.88 are not connected with accused No.4 for purchase of gold bars from M/s. MDR Jewellers. PW.85 never deposed that he arranged for air travel from Hyderabad as held by the trial Court.
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130. Thus, the prosecution failed to prove beyond reasonable doubt by producing cogent evidence that accused No.4 has played deception on any prosecution witnesses and that there is parting of property in favour of accused No.4 by any witness so as to prove the guilt of the accused No.4 for the offence under Section - 420 of IPC. Even then, the trial Court convicted accused No.4 for the aforesaid offences erroneously.
131. Without considering the said evidence, more particularly, the deposition of PW.108, the trial Court recorded conviction against accused No.4 for the offences under Sections - 420, 420 read with 511, 471 and 471 read with 511 of IPC. In fact, Section - 114 (a) of the Indian Evidence Act has no application to the facts of the present case. The findings of trial Court convicting accused No.4 for the aforesaid offences is contrary to the evidence.
132. This Court being appellate Court is having power to reappraise whole evidence while considering the appeal filed by the accused. In the light of the aforesaid discussion, on the analysis of the evidence, the findings of the trial Court are contrary to the evidence, both oral and documentary. The trial Court recorded conviction 102 KL,J Crl.A. Nos.1391 of 2017 & batch against the accused based on the circumstantial evidence without considering the fact that the circumstances relied upon by the prosecution do not form a complete chain, and that chain is missing at every stage.
133. As discussed supra, the prosecution has to prove the guilt of the accused beyond reasonable doubt by producing sure, safe, corroborative and cogent evidence. It has to prove the ingredients of the aforesaid offences against the appellants - accused herein. In the present case, the prosecution utterly failed to prove the said ingredients and without considering the same, the trial Court recorded conviction against the accused herein for the aforesaid offence. Therefore, the finding of the trial Court holding that the appellants herein are guilty of the aforesaid offences is not based on cogent evidence and reasoning given by trial Court is contrary to evidence on record.
134. In the light of the aforesaid discussion, the trial Court erred in convicting the appellants - accused Nos.1, 3 and 4 vide impugned judgment dated 15.11.2017 in C.C. No.33 of 2007. Therefore, the said judgment is liable to be set aside. 103
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135. All these appeals are accordingly allowed, setting aside the impugned judgment dated 15.11.2017 passed by the Principal Special Judge for CBI Cases, Hyderabad in C.C. No.33 of 2007 in so far as accused Nos.1, 3 and 4 are concerned. Accused Nos.1, 3 and 4 are acquitted of the charges framed against them. Bail bonds furnished by them stand cancelled. Fine amounts, if any, paid by appellants - accused Nos.1, 3 and 4 respectively are ordered to be returned to them after expiry of appeal time.
As a sequel thereto, miscellaneous applications, if any, pending in these appeals shall stand closed.
_________________ K. LAKSHMAN, J 22nd March, 2024 Mgr