State Of U.P. vs Ravi Prakash Srivastava
2016 Latest Caselaw 2423 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 36
 

 
Case :- GOVERNMENT APPEAL No. - 2502 of 2003
 

 
Appellant :- State Of U.P.
 
Respondent :- Ravi Prakash Srivastava
 
Counsel for Appellant :- Government Advocate
 
Counsel for Respondent :- K.K.Shangloo,Ram Tiwari
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Vinod Kumar Srivastava-III,J.

             (Delivered by Hon'ble Ramesh Sinha,J.)

1. Heard Sri Sanjay Tripathi, learned AGA for the State and Sri Ram Tiwari, learned counsel for the accused-respondent and perused the record.

2. This present Government Appeal has been preferred against the judgment and order dated 11.2.2003 passed by the learned Additional Sessions Judge, Court No.3, Jhansi in Special Case No.3 of 1987 whereby the accused-respondent has been acquitted for the offence punishable under Sections 409/420/468/471 I.P.C. and 5/11 Prevention of Corruption Act, 1947.

3. The prosecution case in brief is that; one Kalika Prasad Srivastava had given an application to the Superintendent of Police, Jhansi on 10.5.1977 Ex. Ka.-15 with an allegation that he along with his wife had open a saving bank account in United Commercial Bank, Bada Bazar, Jhansi. Thereafter, he deposited Rs.14,000/-, 400/- 300/- and 300/- on 16.11.1974, 16.2.1976, 19.6.1976 and 22.6.1976 respectively in the said account. In the year 1974, he was transferred from District Jhansi and was living outside the District but he had neither withdrawn any money from his account nor he had authorized any person to operate his account. When he was transferred to Manikpur then he came to know that his passbook has been lost, for which he made an application to an employee of the Bank, namely, Ravi Prakash Srivastava, requesting him to issue a duplicate passbook. It was further stated that in April, 1986 he for the first time came to know that Rs.9000/- has been fraudulently withdrawn from his account, for which he had given a written complaint on 13.4.1976  to the bank authorities Ex. Ka.-13 and requested them to pay back his amount, but all his efforts were in vain. On 9.5.1977, the informant again went to the Bank and submitted a Cheque No. AS/17-701172 amounting to Rs.15,000/- for withdrawing the money but the payment was not made to the informant. It was stated by him that Rs.8,800/- has been withdrawn by the employees of the Bank fraudulently. On the basis of the said written report, an FIR (Ex. Ka.-18) being Case Crime No.182 of 1977 for the offence under Sections 409/420/468/471 I.P.C. and 5 (1) (C) of Prevention of Corruption Act, 1947, Police Station-Kotwali, District Jhansi was lodged against the accused-respondent.

4. S.I. Ram Autar Dixit conducted the investigation of the case and thereafter he submitted charge sheet against the accused-respondent, namely, Ravi Prakash Srivastava for the offence under  Sections 409, 420, 468, 471 I.P.C. in the Court of C.J.M., Jhansi. After submission of the charge sheet, the Manager of the United Commercial Bank filed petition before this Court with a prayer for adding Section 5 of the Prevention of Corruption Act as the offence is also disclosed against the accused respondent and further prayed that the case be transferred to the Court of Special Judge, Anti Corruption. On which this Court vide order dated 21.1.1987 transferred the case from the Court of C.J.M., Jhansi to the Court of Special Judge, Anti Corruption. Thus, the accused respondent was put to trial by the Special Judge, Anti Corruption, which framed charges against the accused-respondent Ravi Prakash Srivastava for the offence under Sections 409, 420, 468, 471 I.P.C. and Section 5(1) (C) of Prevention of Corruption Act (herein-after-referred to as the "Act").

5. The prosecution in support of its case examined PW1-R.K.Gupta, PW2-Arun Kumar Sharma, PW3-Yogendra Kumar Upadhyay, PW4-P.D. Sharma, PW5-J.B. Mehrotra, PW6-Vijaybhan Singh, PW7- K.P.Srivatava, PW-8 Satish Dayal (hand writing expert), PW-9 Nityanand Sharma (the then Head Moharrir, Police Station Kotwali, District Jhansi).

6. The accused-respondent in his statement under Section 313 Cr.P.C. has denied the prosecution case and stated that he has been falsely implicated in the present case and the bank officials under the influence of the Bank Manager have deposed against him as  he was the Secretary of the Employees of the Bank Union and there was a dispute with the Management of the Bank frequently. He submitted that in those days Manager R.A.Pandey had formed two groups and the group of the accused-respondent had less number of persons and they were being pressurized by the other group because of which a conspiracy has been hatched against him to falsely implicate in the present case.

7. The accused in his defence did not produce any evidence.

8. The trial Court dealt with the allegation against the accused-respondent who was posted in the United Commercial Bank from 16.10.1974 to 9.5.1977 as Clerk, he had embezzled Rs.8800/- from the account of Sri Kalika Prasad Srivastava, the informant and he also committed some forged entries in the account of Smt. Shakuntala Bhatt, J.N. Srivastava, V.K. Trivedi, L.N. Nigam respectively.

9. The trial Court while examining the evidence of PW7-Kalika Prasad Srivastava, the informant of the case, came to the conclusion that there was no allegation made against the accused-respondent Ravi Prakash Srivastava in the FIR or before the trial Court by the informant for fraudulently and dishonestly withdrawing the amount of Rs.8800/- from his saving bank account but it was made against all the Bank employees. Thus, there was no evidence led by PW7-Kalika Prasad Srivastava against the accused-respondent and he had only proved from his evidence regarding registration of the FIR and written report which he had submitted to the concerned police station. In his cross-examination also, the trial Court found that the said witness has accepted that on 10.5.1977 the application which he had written was under the guidance of the Bank Manager as well as on his own wisdom.

10. From the evidence of PW7, the trial Court found that neither the informant Kalika Prasad Srivastava had given his passbook to the accused-respondent or he had made any forgery in it. Thus, on the evidence of the said witness the trial Court found that no charge of embezzlement has been levelled against the accused-respondent by the informant.

11. The other witness, namely, R.K.Gupta (PW1) was also examined by the trial Court had stated that on 23.1.1976 and 30.3.1976 two withdrawal forms of L.N.Nigam were brought by the accused-respondent Ravi Prakash Srivastava to him and he made payment of the same to him. The said two withdrawals were passed by in accordance with law by the Bank officials after which he had made payment to him and the accused-respondent informed him that L.N.Nigam was sitting at his seat as he was an old person and he had taken the payment which was paid to him. He further stated that L.N.Nigam had not personally came to him for taking payment. The two withdrawals forms have been exhibited as Ex. Ka.-1 & Ka.-2 respectively, for which payment was made to the accused-respondent. He further admitted that on 23.1.1976 and 30.3.1976 he was working at the payment seat of the Bank and on the said dates two withdrawal forms bearing signature of L.N. Nigam were there which were compared with his specimen signature and thereafter the payment was made. This witness also admitted that at the back of the said two withdrawal forms there was signature of L.N. Nigam and not of the accused-respondent. Moreover, L.N. Nigam was also not produced before the trial Court nor he made any complaint to the bank that he did not receive any payment against the said two withdrawal forms which were submitted by him to the bank. Thus, on the basis of the said evidence of PW1 also, the trial Court was of the opinion that there was no allegation against the accused-respondent for the charge levelled against him regarding the account of L.N. Nigam.

12. Moreover, the other account holders, namely, Smt. Shakuntala Bhatt, J.N. Srivastava, V.K. Trivedi, L.N. Nigam in whose account there was allegation of making forged entries by the accused-respondent have not come up before the trial Court regarding the allegation made against the accused nor they made any complaint against him to the Bank.

13. From the evidence of the other prosecution witnesses, i.e.,PW2-Arun Kumar Sharma, PW3-Yogendra Kumar Upadhyay, PW4-P.D. Sharma, PW5-J.B. Mehrotra, PW6-Vijaybhan Singh and PW7- K.P.Srivatava, the trial Court found that they were only bank employees and have not stated anything against the accused-respondent which may prove the charge against him.

14. Learned AGA on the other hand, has tried to assail the order of acquittal passed by the trial Court acquitting the accused-respondent, but he could not show from the evidence on record that the order of acquittal passed by the trial court is against the evidence on record or perverse which may call for any interference by this Court.

15. Learned counsel for the accused-respondent has refuted the argument of learned AGA and has submitted that the order of acquittal passed by the trial Court does not suffer from any illegality or perversity which may call for any interference by this Court and prayed that the appeal is devoid of merits and it may be dismissed.

16. We have examined the evidence of PW7, the informant, and PW1 who is a Bank employee who made payment of the two withdrawals submitted by L.N. Nigam, the account holder and we do not find from their evidence and other evidence on record that charge which has been levelled against the accused-respondent stand proved.

17. Having considered the totality of the circumstances of the present case, we are of the opinion that the view taken by the trial court in acquitting the accused-respondent does not suffer from any perversity or illegality. The learned trial judge was perfectly justified in passing the impugned judgment of acquittal.

18. The appeal lacks merit and is dismissed, accordingly.

(Vinod Kumar Srivastava-III, J.)      (Ramesh Sinha,J.)

Order Date :- 10.5.2016

NS