Ram Gopal vs C.B.I. Dehradun
2017 Latest Caselaw 3985 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED							            AFR      
 
Court No. - 15
 

 
1.	Case :- CRIMINAL APPEAL No. - 1226 of 2013
 
Appellant :- Ram Gopal
 
Respondent :- C.B.I. Dehradun
 
Counsel for Appellant :- Satya Prakash Pandey,Sadhna Upadhyay
 
Counsel for Respondent :- Pranaya Krishna,Amit Mishra
 
2.	Case :- CRIMINAL APPEAL No. - 1272 of 2013
 
Appellant :- Pankaj Kumar Jain
 
Respondent :- Central Bureau Of Investigation Dehradun
 
Counsel for Appellant :- Chandan Sharma,Sandeep Shukla,Umesh Narain Sharma
 
Counsel for Respondent :- Pranay Krishna,Anurag Khanna,Pranay Sharma
 

 
Hon'ble Amar Singh Chauhan,J.

These are two connected appeals aforementioned have been filed before this court challenging the common judgment and order dated 12.3.2013 passed in Special Case No. 42 of 2005 arising out of R.C. No. 5(A) of 1994 (C.B.I. Versus Pankaj Kumar Jain and another), under Sections 120-B, 420, 467, 468, 471, 477-A, 201 I.P.C., and 13(1)(d) read with 13(2) Prevention of Corruption Act, Police Station C.B.I., Dehradun, District Ghaziabad whereby the appellants have been convicted and sentenced to undergo 3 years rigorous imprisonment with a fine of Rs. 3,000/- under Section 120-B I.P.C.; to undergo 3 years rigorous imprisonment with a fine of Rs. 3,000/- under Section 420 I.P.C.; to undergo 4 years of rigorous imprisonment with a fine of Rs. 10,000/- under Section 467 I.P.C.; to undergo 3 years of rigorous imprisonment with a fine of Rs. 3,000/- under Section 468 I.P.C.; to undergo one year rigorous imprisonment with a fine of Rs. 1,000/- under Section 471 I.P.C.; to undergo 3 years of rigorous imprisonment with a fine of Rs. 3,000/- under Section 477-A I.P.C.; to under 3 years of rigorous imprisonment with a fine of Rs. 3,000/- under Section 201 I.P.C.; to undergo 4 years of rigorous imprisonment with a fine of Rs. 10,000/- under Section 13(2) read with 13(1)(d) P.C. Act and in default of payment of the maximum six months additional sentence was ordered and all the sentences were directed to run concurrently.

Since the controversy and facts involved in these appeals are the same, therefore, they are being heard and decided together by a common judgment with the consent of the parties.

In a short compass, the facts which give rise to the present appeals are that the first information report was initially lodged by Assistant General Manager, State Bank of India, Ghaziabad against Dinesh Kumar Sharma & Smt. Vandana Kundra, who were posted as Clerk in State Bank of India and also against the unknown persons alleging therein that on 13.7.1992, they opened a fictitious account in the name of Raj Kumar, resident of 25 Mohalla Mirza Jan, Ghaziabad by depositing a sum of Rs. 250/-. After that a hefty amount of Rs. 3,22,056/- was shown to have been deposited by means of six credit entries in the ledger sheet from the period 23.7.1992 to 31.10.1992. Thereafter, on different dates a total sum of Rs. 3,22,000/- was withdrawn by using seventeen cheques leaving balance of Rs. 322.85. Out of six credit entries, three credit entries were done by Dinesh Kumar Sharma, Clerk to the tune of Rs. 2,46,056/- and three credit entries were done by Smt. Vandana Kundra with regard to the rest of the amount. This mishandling was detected after eight months and the matter was probed by the C.B.I. on the basis of a first information report lodged on 12.4.1994 by C.B.I. After concluding the investigation, C.B.I. submitted the chargesheet against the appellants Ram Gopal and Pankaj Kumar Jain. They were charge sheeted under section 120B, 420, 467, 468, 471, 477A, 201 IPC read with section 13(1)(d) and 13(2) Prevention of Corruption Act and were summoned to face the trial in the offence aforesaid. The concerned court framed the charges in the aforesaid sections to which accused appellants denied and claimed to be tried.

To bring home the guilt of the accused, the prosecution has examined P.W. 1 Raj Kunwar, A.G.M., since February 1995 in S.B.I. Meerut, who in his statement stated that accused Ram Gopal was posted as Massenger, S.B.I. Branch, Ghaziabad during the year 1992-93. He granted sanction to prosecute the accused Ram Gopal as there was a sufficient ground to prosecute him. He proved the sanctioned letter Exhibit ka-6.

P.W. 2 S.K. Jain stated on oath that from May 1997-2000, he was posted as A.G.M., S.B.I. Region 3, Zonal Office Meerut. He was authorized to relieve and appoint the clerk/cashier and also issued sanction letter to prosecute the accused Pankaj Kumar Jain which is Exhibit ka-7.

P.W. 3 Ishwar Chand stated on oath that he was posted as Cashier in S.B.I., Navyug Market, Ghaziabad from 1979 to 1997. He is authorized for payment of cheque after verifying the token number which was got entered in the register. He also stated that on 24.7.1992 by way of cheque, Rs. 10,000/- through cheque no. 10 Ka/2 which was related to the account No. 52755 got entered in the payment register by him which is Exhibit ka-8. In the same manner on 30.7.1992, he made payment of Rs. 20,000/- by making entry in the payment register through cheque no. 10Ka/3, on 5.9.1992 cheque no. 10Ka/8 of Rs. 25,000/- and on 26.9.1992 cheque no. 10Ka/13 of Rs. 25,000/-.

P.W. 4 Anil Kumar Gupta stated on oath that he was posted as Cashier, S.B.I. Navyug Market, Ghaziabad from 23.7.1992 to 31.10.1992. He also stated that Paper no. 10Ka/4 which is cheque relating to account no. 52755 amounting to Rs. 10,000/- which was passed by Smt. Arti Prasad who was the passing officer of the Bank and after issuing the payment, entry was made in the payment register at Page no. 208 (paper no. 15Ka), which was made to Ravi and the said entry was Exhibit Ka-13 and the signature of passing officer was mentioned as Exhibit Ka- 14. Paper no. 10 Ka/14, which was passed by Mr. J.K. Arya, passing officer being cheque no. 825675 of Rs. 15,000/- which was mentioned on page no. 180 of the payment register, as Exhibit Ka-16, the payment of the same was made to Ravi by P.W.4. Payment of cheque no. 825676 (Paper no. 10Ka/15) of Rs. 15,000/- was made to Rajesh.

P.W. 5 Ashutosh Padru stated on oath that he was posted as Assistant Manager in S.B.I., Navyug Market, Ghaziabad. He also stated that in the process of opening of new account, account opening form is given to customer. The Branch Manager can authorize the opening of new account and the account holder whose account has to be opened is required to sign in front of the officer and specimen signature is also made in front of the Bank Officer. If letter of thanks, which is a part of the process for new account opening has to be sent at the address of new account holder and if the said letter returns undelivered to the Bank; in the ledger sheet of the said account, the said letter of thanks has to be attached and no further transaction is to be recorded. He also clarified that once a new account is opened, the account holder while receiving the passbook and cheque of his bank account, he has to sign in front of the Bank Officer and to remain personally present.

P.W. 6 Rajveer Singh stated on oath that he was posted as Postman, Head Post Office, Ghaziabad from 1973 to 2004. He also stated that there is no House no. 25 in Mohalla Mirza Jahan.

P.W. 7 V.K. Khanna stated on oath that he was posted as Principal Chief Scientific Officer, C.F.S.L. He has given reports regarding specimen signature, disputed signature dated 14.5.1997 being Exhibit Ka-20 and supplementary report dated 30.6.1997 in Exhibit Ka-21.

P.W. 8 Shashi Bhushan Kapoor stated on oath that he was posted as Clerk at S.B.I., Navyug Market, Ghaziabad from 1983 to 1995. He also stated that all debit and credit vouchers in the Bank are to be recorded compulsarily in the day book, which was started from 28.4.1992 and the said day book was Exhibit-3. On 3.9.1992, there was no credit voucher of Rs. 75,000/- mentioned in the day book. Even though, in the ledger sheet of Account No. 52755, Rs. 75,000/- has been shown credited as cash.

P.W. 9 R.S. Sabu stated on oath that he was posted as Concurrent Auditor, S.B.I., Navyug Market, Ghaziabad in the year 1995. He also stated that all the entries from 16.6.1992 to 26.8.1992 are to be recorded in the day book register as well as the ledger voucher of the account holder, which has to be checked by the day book writer and one officer. The day book has been exhibited as Exhibit-7, which shows that all credit entries of Rs. 31,000/-, Rs. 75,000/- and Rs. 85,000/- were not in the day book and he has stated that if there is any credit or debit entry, it has to be compulsorily recorded in it. Likewise, entries of Rs. 24,000/- and Rs. 21,000/- were not recorded in the day, which was mentioned in the ledger sheet of Account no. 52755. In the relevant account book on 23.7.1992 at page no. 210, an amount of Rs. 24,000/-, on 27.7.1992 at page no. 218, an amount of Rs. 21,000/-, on 05.8.1992 at page no. 238, an amount of Rs. 31,000/-, on 03.9.1992 an amount of Rs. 75,000/-, on 16.9.1992 at page no. 34, entry of Rs. 85,000/- were not recorded in thet Cashier Receipt Scroll Register, which was exhibited as Exhibit No. 8 and 9, which means that above mentioned amount has not been received by the Bank. He further stated that cheque book issue register which was exhibited as Exhibit No. 10, in which details of cheque book issued to the account holder were to be recorded and signatures of the account holders were made. Paper Nos. 10Ka/1 to 10Ka/8 which relates to the account no. 52755 issued to Raj Kumar and payment register exhibited as Exhibit No. 11 in which entries were to be made by the cashier. Paper No. 20Ka to 24Ka (Cashier Receipt Scroll Register) that relates to relevant scroll dated 23.7.1992, 27.7.1992, 05.08.1992, 03.09.1992 and 16.9.1992 and has categorically stated that entries relating to the said date being Rs. 24,000/-, Rs. 21,000/-, Rs. 31,000/-, Rs. 75,000/- and Rs. 85,000/- respectively is not received and there is no entry in the said scroll register.

P.W. 10 Sudhir Kumar Bhargav stated on oath that he was posted as Assistant Manager, S.B.I. Main Branch, Ghaziabad. He has also stated that on 16.9.1992, a wrong entry of Rs. 85,000/- was mentioned in the ledger of Account no. 52755 due to which he has not authenticated the same because there was no credit voucher of Rs. 85,000/- on record.

P.W. 11 Arti Prasad stated on oath that she was posted as Assistant Manager, S.B.I., Navyug Market, Ghaziabad and she is used to pass cheque and withdrawal from the saving bank account. On 13.7.1992, credit entries were made in the handwriting of Smt. Vandana Kundra, in the ledger sheet, the name and address of the account holder is also in the handwriting of her and in Exhibit Ka-24, the credit entries of Rs. 24,000/- and Rs. 21,000/- were also in the handwriting of Smt. Vandana Kundra. In paper no. 12 Ka i.e., Passbook issue register, at page no. 123, entry was made by Smt. Vandana Kundra on 14.7.1992 regarding issuance of passbook in relation to account no. 52755. In paper no. 11 Ka i.e., cheque book issue register at page no. 15, which is marked as Q22, cheque nos. 82661 to 680, relating to account of Raj Kumar was made in the handwriting of Smt. Vandana Kundra. She had passed cheques bearing paper no. 10Ka/1 to 10Ka/6 after verifying from the bank records by her signature, which was exhibited as Exhibit No. Ka-25/1 to Ka-25/6. The entries in day book exhibited as Exhibit No. 7 and ledger book exhibited as Exhibit Ka-24 of Rs. 24,000/- on 23.7.1992, Rs. 21,000/- on 27.7.1992 and Rs. 31,000/- on 05.08.1992 were recorded in the ledger register but corresponding entries were not in the day book which means that the said amount has not been deposited in the said account and if the said amount has been deposited, the entries were to be mentioned in the day book. In Cashier Scroll Register, being paper no. 20Ka to 24Ka, if any deposit has been made in the bank, the said entry were to be maintained in the Cashier Receipt Scroll Register, same being Exhibit No. 14 and she has further stated that an amount of Rs. 24,000/- dated 23.7.1992, Rs. 21,000/- dated 27.7.1992, Rs. 31,000/- dated 05.08.1992, Rs. 85,000/- dated 16.9.1992 and Rs. 75,000/- dated 03.09.1992 were mentioned in the ledger of account no. 52755. There is no entry in the Exhibit No. 14 which means that cashier has not received such amount. At the time of opening of account, account holder as well as introducer has to be made signature in front of Manager, which is compulsory and first cheque book is only given to the account holder.

P.W. 12 Narendra Kumar Sharma stated on oath that he was posted as Deputy Manager, S.B.I., Navyug Market, Ghaziabad, from October 1990 to June 1994. He has also stated that in Exhibit Ka-26 (page no. 156 to 159 of day book), neither there is entry of Rs. 31,000/- in the day book nor there is any voucher, even though an entry of Rs. 31,000/- has been recorded in the ledger sheet of account no. 52755 on 05.08.1992 and therefore entry of Rs. 31,000/- is forged one since there is no voucher in respect thereof.

P.W. 13 Viresh Tyagi stated on oath that he was posted as Manager, Personal Banking Department (P.B.D.), Navyug Market, Ghaziabad, from 29.11.1990 to 12.10.1992. He has also stated that paper no. 10Ka/1Ta10Ka/17 in which amount was withdrawn from the cheques, in which name of Raj Kumar was written in place of signature. In Establishment Register from February 1991 to 31.08.1991 i.e., paper no. 26Ka, entries at page nos. 6 to 9, page nos. 12 to 14, page no. 18, page nos. 25 to 27, page nos. 54 to 64 were of Pankaj Kumar Jain, which were exhibited as Exhibit No. 27. In Paper No. 28Ka/7, account no. 34494 which relates to Pankaj Kumar Jain had deposit slip while paper no. 29Ka/2 and 29Ka/3 had deposit slip of wife of Pankaj Kumar Jain namely Smt. Suman Jain having signatures of Pankaj Kumar Jain, which were exhibited as Exhibit No. 33 and 34 respectively.

P.W. 14 Bharat Singh has stated on oath that he was posted as Senior Assistant, S.B.I., Mirzapur from July 1990 to 2003. He also stated that at that time Pankaj Kumar Jain was posted as Clerk in the aforesaid Branch. All the entries of Pankaj Kumar Jain in the page no. 12 of attendance register dated 16.11.1992, 17.11.1992, 18.11.1992, 19.11.1992, 23.11.1992, 25.11.1992, 26.11.1992, 27.11.1992, 02.12.1991, 05.12.1992 and 15.12.1992 to 18.12.1992 were circled with red ink was signatured by Pankaj Kumar Jain with his own handwriting, due to which he was suspended.

P.W. 15 Dr. P.N.P. Shahi has stated on oath that he was posted as Chief Manager, S.B.I., Navyug Market, Ghaziabad from 1996 to 1999. He has also stated that files related to fraud in banks was maintained properly and he used to supervise all that files along with other officers and Assistant General Manager also used to see all that files. Out of that files, one is of appellant Pankaj Kumar Jain, according to which money was withdrawn after manipulating the correspondence in the account of wife of Pankaj Kumar Jain namely Smt. Suman Jain and vouchers were not available relating to this file. According to him, one fake draft was encashed in that case.

P.W. 16 Vijendra Kumar Agrawal has stated on oath that he was posted at S.B.I., Mirzapur, from September 1996 to October 1997. He also stated that personal file of appellant Pankaj Kumar Jain was maintained at S.B.I., Mirzapur, which is exhibited at Exhibit No. 15. He further stated that he used to recognize signatures of Pankaj Kumar Jain but it were not came up before him.

P.W. 17 Rajesh Rai has stated on oath that he was posted as Deputy Manager, S.B.I., Navyug Market, Ghaziabad, from June 1992 to October 1995. He also stated that being a Deputy Manager, his duty was to look after the saving bank accounts, current account, recurring account, T.D.R. Lockers etc. Specimen Signature Card (SS Card)/Opening Form remains in the custody of Saving Bank Officer and at 3 to 4 pm when the work of the bank being completed, key of almirah of saving bank officer handed over to him and the keys of other departments also come in his possession, thereafter, all keys of the respective department are being locked in the almirah and keys of the said almirah is handed over to the Manager. Day book of the bank were written by different employees and some time it was checked by him and on the next day the day book along with vouchers were sent to Account Department for book balancing. Specimen Signature Card (SS Card), Exhibit 39, for opening the account no. 52755, was authorized by then Manager Shri Viresh Tyagi. At page no. 15 of cheque book issue register, which is Exhibit 13, cheque book having cheque nos. 661 to 680 was issued in the name of Raj Kumar and the said entry was in the handwriting of Smt. Vandana Kundra and passbook issuing entry dated 14.7.1992 was also made in her handwriting.

P.W. 18 Ashok Kashyap has stated on oath that he is handwriting and finger print expert and submitted a report dated 17.12.1993, which is Exhibit Ka-54. He also stated that he examined the disputed writing and signature of appellants Ram Gopal and Pankaj Kumar Jain and found that the word 'Raj Kumar' mentioned in English was written by Pankaj Kumar Jain.

P.W. 19 B. Dayal has stated on oath that he was posted as Manager (Accounts and Administration), S.B.I., Navyug Market, Ghaziabad, from October 1995 to September 1999. He has also stated that in his tenure he used to deal with leave application and salary of Prakash Chand, Daulat Ram and P.K. Tyagi, therefore, he recognize handwriting and signature of these persons only.

P.W. 20 Anant Bhagwan has stated on oath that he is living in House no. 176, Sihani Gate, Mohalla Mirza Jahan since 1967 and he is not aware of any person having name Raj Kumar living in this locality.

P.W. 21 P.K. Agrawal has stated on oath that he was posted on 31.10.1992 at S.B.I., Navyug Market, Ghaziabad and on that day, he was passing the saving account and day book was checked by him. He has also stated that on 31.10.1992 there is no entry of Rs. 86,056 in the day book, and if there is any entry of this amount there must be credit voucher which was not there and the person who checks the day book also authenticate the ledger. He further stated that in the ledger sheet of account no. 52755, the entry of Rs. 86,056/- dated 31.10.1992 has not been authenticated by him.

P.W. 22 Rajeev Jain has stated on oath that he was posted as Deputy Manager at S.B.I., Navyug Market, Ghaziabad, and for some time he has worked as Personal Assistant to Shri Anand Swaroop Sharma, A.G.M., therefore, he only recognize sigatures of Shri Anand Swaroop Sharma.

P.W. 23 S.S. Atwal has stated on oath that he was posted as Sub Inspector, C.B.I., A.C.B. Dehradun from 1994 to 1997 and was promoted to the post of Inspector there from 1997 to 1998. He has also stated that first information report was registered on 12.04.1994 by then S.P., C.B.I. Dehradun on which Shri Raj Deep has signatured. Initially this case was investigated by Shri Yashpal Singh, Inspector, C.B.I. Dehradun but case is given to him for further investigation after permission from learned Special Magistrate and the case diary along with other documents were taken from Shri Yashpal Singh. He has further stated that paper no. 42 Ka i.e., documents relating to seizure memo dated 08.01.1996 which is exhibited as Exhibit 23 were taken from Shri R.L. Batra, Acting Chief Manager, S.B.I., Ghaziabad and he has also taken seizure memo dated 17.4.1996, 24.7.1996, 27.12.1996, 03.10.1997 from the S.B.I., Ghaziabad. During the investigation accused Ram Gopal and Pankaj Kumar Jain on free will given their specimen handwriting. Documents of Paper no. 28Ka/2, 28Ka/3, 28Ka/7, 28Ka/10, 29Ka/1, 29Ka/4, 29Ka/5 ta 29Ka/9 were taken into custody and their handwriting after marking as A-67, A-74, A-75, A-102, A-112 ta A-117 were sent to expert, which is exhibited as Exhibit 63 ta Exhibit 75. He has also sent the samples of signatures and handwriting of Ram Gopal and Pankaj Kumar Jain to C.F.S.L., New Delhi and also after marking question writing/signatures with blue ink as Q-19 sent it to G.I.Q.D for opinion, which is exhibited as Exhibit Ka19/1. Finally charge-sheet was prepared against Ram Gopal and Pankaj Kumar Jain after finding evidence against them, which is exhibited as Exhibit 76, and presented to the court after forwarding from then S.P., Shri Jai Sudesh.

After concluding the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C., in which he denied charges by saying that sanction was illegal, C.F.S.L. report was wrong and they have been roped in this crime on account of departmental enmity. It is also stated by the appellant Pankaj Kumar Jain that he has been transferred from the said Branch on 18.6.1992 to Mirzapur, District Saharanpur, and both the appellants claimed to be innocent. As defence witness Shri Ajay Mohan Paliwal, finger print expert was examined on behalf of accused Pankaj Kumar Jain.

Learned Special Judge, C.B.I. Court No. 1, Ghaziabad, after perusing the record and hearing the counsel for the parties came to the conclusion that the appellant being the public servant misused their official position so as to have wrongful gain by providing wrongful loss to the employer Bank by committing serious act of fraud and forgery while the prosecution has established to the hilt against the appellants and, therefore, convicted and sentenced them under Sections 120-B, 420, 467, 468, 471, 477-A, 201 I.P.C., and 13(1)(d) read with 13(2) Prevention of Corruption Act, Police Station C.B.I., Dehradun, District Ghaziabad, as has already mentioned hereinabove vide judgment and order, hence these appeals questioning the said judgment.

Feeling aggrieved, the accused appellants have come up in these appeals.

I have heard Shri Sandeep Shukla, Shri S.S. Upadhyay as counsel for the appellants in the connected appeals, Shri Amit Mishra, learned counsel appearing for the Central Bureau of Investigation and perused the record of the case.

It is submitted by learned counsel for the appellants that initially first information report was lodged against Dinesh Kumar Sharma and Smt. Vandana Kundra who were posted as Clerk at the relevant point of time in State Bank of India. They have opened fictitious account and made credit entries in the name of fake person Raj Kumar by playing fraud and withdrew amount of Rs. 3,22,056/- by using 17 cheques. The name of the appellants came on surface during the investigation and charge-sheet was submitted against the appellants Ram Gopal and Pankaj Kumar Jain by exonerating the named accused persons Dinesh Kumar Sharma and Smt. Vandana Kundra. Clerks, State Bank of India. It is further submitted that six credit entries amounting to Rs. 3,22,056/- are alleged to have been made in the legder concerned by them but had been let of by the Investigating Agency. The appellant Ram Gopal was merely a messenger/peon, charged with the work of moving the file, papers from one counter place to the other at the behest of official within the walls of S.B.I. Branch. There is no evidence showing the complicity of the appellants in commission of the offence as there is lacking of connected evidence for constituting the offence of conspiracy. The appellants were neither involved in getting the accounts opened in the name of Raj Kumar nor had been beneficiary of the said embezzlement. There was no sanction much less proper for the prosecution of the appellant Ram Gopal as the same had been granted in respect of the other accused Pankaj Kumar Jain. A sum of Rs. 3,22,000/- was withdrawn with the connivance of the accused persons in the fictitious name of Raj Kumar by using 17 cheques. There is no person in the name of Raj Kumar and no efforts was made to verify the address of the Raj Kumar by sending letter of thanks. The body of the two cheques were said to have been written by the appellant Ram Gopal and all cheques were said to have been prepared and signed by the appellant Pankaj Kumar Jain as per expert opinion. It is also submitted that on the very date on which the account was opened in the name of fake person, the appellant Pankaj Kumar Jain was transferred from the said Branch. The prosecution witness no. 3 Ishwar Chand who made the payment on the relevant dates through cheques had specifically stated that he did not make any payment to the appellants and that it could not be possible that the appellants had received money from his counter. Had there been any discrepancy in the day book or ledger it ought to have been traced on the same day or by the next date as the forged cheques can only be encashed when the said cheques were passed by the concerned authority. The defence finger print expert Mr. Ajay Mohan Paliwal found that the writing of the appellants did not tally with the alleged document whereby fraud was committed in withdrawing the amount through cheques. Since the appellant Pankaj Kumar Jain was transferred, it was not possible to open a fictitious account, give a pass book, cheque book and pass the forged cheques and at the same time withdrew the amount from the cash counter by himsel or through anyone else. There is material lapse on the part of the investigating agency in collecting the evidence from the person who were posted in the Branch at the relevant point of time and were authority of clearing the bank account, issuing the cheque, pass book and the person who had opened the account in the name of Raj Kumar and the person by whom a sum of Rs. 3,22,000/- were withdrawn. It is also not evident that as to who had deposited the amount for opening the fictitious account. The presumption cannot be treated as an evidence despite this the appellants have been convicted and sentenced by the learned trial Judge without examining the material available on record. The Investigating Officer left the responsible officers who were involved in the alleged forgery of withdrawing the amounts and have made scapegoat to the appellants. The trial Court has failed to consider this fact that nowhere pointed out as to what are the circumstances or condition in which the person who had already been transferred from the Branch on 18.6.1992 can open an account in the name of fictitious person on 13.7.1992. Since the lodging of an F.I.R. is itself belated by more than one and a half year which itself shows that the Bank employees who were working in the said Branch on the very day has themselves entered into an conspiracy and have committed fraud by making forged entries which were recorded in the ledger sheet of Mr. Raj Kumar by the named accused persons namely Smt. Vandana Kundra and Shri Dinesh Kumar Sharma who cheated the bank to the tune of Rs. 3,22,000/-. Investigating Officer exonerated them by saying that they have no role to play in the said forgery. There was no entry in the day book as well as in the cashier receipt scroll register, even though the credit entries were made in the ledger of the fake account holder Raj Kumar and surprisingly, payment was made by the Bank employees in connivance with each other for which the appellants have been made a scape goat. It is also submitted that the opinion of the handwriting expert is only an opinion unless it is corroborated by any piece of evidence. The opinion cannot be relied upon and the conviction on the basis of a handwriting expert's opinion is bad in the eye of law. Besides this, there is no iota of evidence against the appellants by any of the prosecution witness. None of the prosecution witness has proved the connection, involvement in the commission of the offence. It is lastly submitted that six forged entries to the tune of Rs. 3,22,056/- were mentioned in the ledger sheet of account no. 52755 and the original voucher and the account opening forms were missing from the Bank record. But no investigation got done on this point.

Learned counsel for the appellants relied on Shiv Nath Arora and Another Vs. State of U.P. and Another [2014 (84) ALLCC 88] in which it has been held that it is a settled view that the report of hand writing expert is a weak type of evidence, and conviction cannot be passed on the report of handwriting expert. In the case of S. Gopal Reddy Vs. State of Andhra Pradesh 1996 ACC 648 (SC), the Apex Court has held as under:-

"The evidence of an expert is a rather weak type of evidence and the Courts do not generally consider it as offering 'conclusive' proof and, therefore, safe to rely upon the same without seeking independent and reliable corroboration."

Per Contra learned counsel appearing for the Central Bureau of Investigation contends that fictitious account was opened in the name of Raj Kumar and on the dint of the fictitious account, a hefty amount of Rs. 3,22,000/- was withdrawn during the period of 23.7.1992 to 31.10.1992 by using 17 cheques leaving balance of Rs. 322.85. Out of the six credit entries, three credit entries were made by Dinesh Kumar Sharma and three credit entries were made by Smt. Vandana Kundra, Clerks, State Bank of India. During investigation, the complicity of the appellants came into light Pankaj Kumar Jain was transferred from S.B.I. Navyug Market, Ghaziabad but he did not join at his transferred place, and after proceeding on medical leave, he remained in Ghaziabad. The form for opening of account and vouchers were also missing. Besides this, the form slip of the withdrawal was found torn. After withdrawing the money to the tune of Rs. 3,22,000/-, all forged credit vouchers, opening account form and the specimen of signature were removed. The cheqeus and pass books were issued in the name of fictitious person Raj Kumar, thereafter 17 cheques were signed by the appellant Pankaj Kumar Jain as Raj Kumar and withdrew the amount to the tune of Rs. 3,22,000/-. The body writing of cheques no. 825666 dated 15.9.1992 and 825667 dated 10.8.1992 were done by the Ram Gopal, thereafter, for the purpose of screening the offence, account cheques, specimen signatures were removed fraudulently. Both the appellants got entered into conspiracy with each other and committed fraud with the Bank causing wrongful gain to themselves and wrongful loss to the Bank. There is no illegality in obtaining sanction. It is a mere slip of the Pan.

Learned counsel for the appellants assailed the impugned judgement by which they were convicted and sentenced on two counts. Firstly the appellant was not named in the F.I.R. and the named accused persons were exonerated by the Investigating Officer, who were responsible for making the fake credit entries. The appellant Ram Gopal was merely a messenger/peon and appellant Pankaj Kumar Jain cashier cum clerk was transferred from the Branch on 18.6.1992 and is not supposed to open the account in the name of fictitious person on 13.7.1992. Secondly, except the handwriting expert opinion, there is no iota of evidence against the appellants by any of the prosecution witness.

In the instant case, the fictitious account in the name of non-existence person Raj Kumar was opened on 13.7.1992 in which Rs. 3,22,000/- was fradulently credited and withdrawn by 17 cheques. Out of the 17 cheques, in the 2 cheques, body writing of appellant Ram Gopal was opined by the expert C.F.S.L. and rest cheques were in the handwriting and signature of appellant Pankaj Kumar Jain. Such type of offence in the Bank cannot be committed by the single person. It is only possible with the collusion of other bank employees who could access each counter in the routine working. Supplementary expert report Exhibit Ka-21 opined that the said cheque book and the pass book were received by the appellant Pankaj Kumar Jain by making a signature of fictitious person, Raj Kumar. In the bank, credit and debit vouchers were to be sent from one counter to another counter through the messenger/peon i.e. appellant Ram Gopal, the only person who had easily approach to the credit and debit vouchers, which were found missing and account opening form was also found torn. Investigating Officer rightly exonerated the named persons Dinesh Kumar Sharma and Smt. Vandana Kundra, whose role is assigned only to ledger posting. After being transferred from the Branch, the appellant Pankaj Kumar Jain did not join the new Branch and also remained present in Ghaziabad. He also moved application in this Branch for payment of salary which indicate that he was in pre-concert of mind in hatching conspiracy with the appellant Ram Gopal. There are other cases against the appellants bearing Case Crime No. 1696 of 1992 (State Vs. Pankaj Kumar Jain and another) under Sections 120-B, 420, 467, 468 I.P.C., Police Station Kotwali, District Ghaziabad; Case Crime No. 705 of 1992 (State Vs. Pankaj Kumar Jain, Ram Gopal and Brahma Datt), under Sections 420, 467, 468 I.P.C., Police Station Kotwali, District Ghaziabad, and a case of fraud against the wife of the appellant Pankaj Kumar Jain namely Suman Lata Jain bearing No. R.C. 1(A)/09 Special Case No. 11/09 (C.B.I. Vs. Tribhuvan Singh, Suman Lata Jain and others), under Sections 120-B, 420 I.P.C., and 13(2)/13(1)(D) Prevention of Corruption Act, Police Station C.B.I., District Ghaziabad which might be pending or would have ended in acquittal as pointed out but reflect the conduct of the appellants. The material Exhibit 15 which is the personal file of the appellant Pankaj Kumar Jain and the paper no. 69 is the charge-sheet in which it is alleged that the appellant Pankaj Kumar Jain has opined the fictitious account no. 52124 in the name of Ashish Sareen and also withdrew the amount.

I find some substance in the contention of C.B.I. Counsel Shri Amit Mishra that rules for opening an account and proper work are relaxed in order to facilitates the relief and also to help the bank employees. If the rules for opening an account were properly complied with then there is no chance of opening a fictitious account and payment. It cannot be ruled out that formalities of opening of account and payment of cheques are relaxed to the bank employees, and even approach of the appellant Ram Gopal cannot be denied. All these circumstances established the involvement of the appellants in the crime. Prosecution witness No. 8 Sri Shashi Bhushan Kapoor had deposed that entry in Day book is done as basis of credit vouchers but credit vouchers, opening accounts Form and specimen of signature were found missing. Accused Ram Gopal being messenger cum peon had uninterrupted approach to these vouchers etc. and on account of this in hatching conspiracy they were in pre-concert of mind and committed serious fraud with Bank causing wrongful loss to the Bank and wrongful gain for themselves. The expert report is in corroboration to it. Supplementary report Ex. Ka-21 clearly indicates that cheque book and passbook were received by appellant Pankaj Kumar Jain by making fictitious signature of Rajkumar. Hon'ble Supreme Court in the case of Murari Lal Versus State of Madhya Pradesh [1980 Supreme Court Cases (Crl) 330] in which it has been held that "it is for the court to decide whether to accept such an uncorroborated evidence or not. The Court should approach the question cautiously and after examining the reasonings behind the expert opinion and considering all other evidence should reach its conclusion. Even where there is no expert opinion, the court has power to compare the writings itself and decide the matter. The courts below on such comparison concurring with the expert's view and the defence raising no doubts against the reasons given by the expert for his opinion and the opinion evidence acceptable without any corroboration."

In view of what has been discussed above, both of the criminal appeals are dismissed, and the impugned judgement and order by which the appellants were convicted and sentenced under Sections 120-B, 420, 467, 468, 471, 477-A, 201 I.P.C., and 13(1)(d) read with 13(2) Prevention of Corruption Act, Police Station C.B.I., Dehradun, District Ghaziabad is hereby affirmed.

Since the appellants are on bail, they shall surrender before the court concerned within a period of 15 days to serve the sentence.

Office is directed to communicate the order to the court concerned for compliance.

Order dated: 05.09.2017

Prakhar