State Of ... vs Nilkanth S/O Rakhuduji Dhurve And ...
2017 Latest Caselaw 5739 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.176 OF 2000


 State of Maharashtra, 
 through P.S.O. Bhandara, 
 Police Station Bhandara.                           ....       APPELLANT


                     VERSUS


 1) Nilkanth s/o Rakhuduji Dhurve, 
     Aged about 48 years, 
     R/o Mukharji Ward, Bhandara, 
     District Bhandara.

 2) Sharif s/o Jumma Sheikh,
     Aged about 40 years,
     R/o Daodipar, Police Station 
     Bhandara, District Bhandara.                   ....       RESPONDENTS


                                    WITH


 CRIMINAL APPEAL NO.177 OF 2000


 State of Maharashtra, 
 through P.S.O. Bhandara, 
 Police Station Bhandara.                           ....       APPELLANT


                     VERSUS


 1) Nilkanth s/o Rakhuduji Dhurve, 
     Aged about 48 years, 


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     R/o Mukharji Ward, Bhandara, 
     District Bhandara.

 2) Sharif s/o Jumma Sheikh,
     Aged about 40 years,
     R/o Daodipar, Police Station 
     Bhandara, District Bhandara.                                ....       RESPONDENTS

 ______________________________________________________________

            Shri A.V. Palshikar, Addl.P.P. for the appellant, 
           Shri A.Z. Jibhkate, Advocate for respondent No.1,
            Shri M.L. Bhure, Advocate for respondent No.2.
  ______________________________________________________________


                              CORAM :  ROHIT B. DEO, J.

                              DATED  :    8 th
                                               AUGUST, 2017

 ORAL JUDGMENT : 

The State is dissatisfied by the judgment and order of

acquittal passed by the learned Chief Judicial Magistrate, Bhandara in

Regular Criminal Case 57/1992 decided on 08-03-2000 by and under

which the accused have been acquitted of offences punishable under

Sections 406, 420, 468, 471 and 201 read with Section 34 of the

Indian Penal Code.

2. The prosecution case, in nutshell, is that accused 1

Nilkanth Dhurve and accused 2 Sharif Sheikh, the Headmaster and

Clerk respectively of Adarsha Vidyalaya Daodipar (Bazaar), in

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furtherance of their common intention, opened an account 1350 with

the Bhandara District Central Co-operative Bank in the name of

Dasaram Motiram Uke misrepresenting that Dasaram Motiram Uke

was a peon employing with the school. It is the case of the prosecution

that infact there was no peon working with the school by name

Dasaram Motiram Uke and that the bank account was opened with the

aid of forged documents and an amount of Rs.13,500/- was withdrawn

and received by the accused. According to the prosecution, the

common intention of the accused was clearly to cheat the institution

and the Government inasmuch as Dasaram Motiram Uke was not an

employee of the society at any point of time and was, as a matter of

fact, serving as a police constable.

3. It would be necessary to consider the genesis of the

prosecution case. P.W.1 Duryodhan Lonare who was serving as a peon

in the school claims that when he happened to be present in the

Bhandara District Central Co-operative Bank, the accused 1 Nilkanth

came to the said bank and when the Cashier called out the name of

one D.M. Uke, it was the accused 1 who received the cash amount

from the Cashier. P.W.1 is a terminated employee and the termination

is pursuant to a conviction for theft of bullock. P.W.1 claims to have

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informed one Kolhatkar who is examined as P.W.7 about the incident.

P.W.7 claims to have made enquiries with the pay unit and upon

allegedly receiving a confirmation that salary amount purportedly

payable to one D.M. Uke was withdrawn from the account of the said

bank, lodged a police report with the Bhandara Police Station.

Pursuant to the said report, P.S.I. Karmarkar conducted an enquiry and

registered offences under Sections 406, 420, 468, 471 and 201 read

with Section 34 of the Indian Penal Code against the accused. The

enquiry report is on record at Exh. 63 and the first information report

is at Exh.64. The learned trial Court framed charge at Exh. 8 which

reads thus :

"Charge (Secs. 221, 222, 223, Cr.P.C.) I, S.A.G. Qureshi, Chief Judicial Magistrate Magistrate, Bhandara,

1) Nilkanth s/o Rakhuduji Dhurave, Aged 54 years, Occ. - Service,R/o Daudipar.

2) Sharif s/o Jumma Sheikh, Aged 44 years, Occ. - Service,R/o Daudipar.

Magistrate Class, hereby charge you as follows :

(1) Accused No.1 being secretary of Gramvikas multipurpose education society Daudipar and No.2 being clerk of Adarsha Vidhyalaya run by the society false showed name of Dasaram s/o Motiram Uke in the record of school as an employee, infact he is police constable at Bhandara and withdrawn Rs.13,5000/- towards salary of Dasaram Uke for the period of April 1988 to April 1989 and misappropriated that

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amount and thereby committed an offence punishable under section 406 of I.P.C.

(2) Secondly you accused cheated to gram vikas multipurpose education society Daudipar by showing bogus name of Dasaram Uke as an employee of the society when he services as police constable and withdrawn Rs.13,500/- towards salary of Dasaram Uke and thereby committed an offence punishable under section 420 I.P.C.

(3) Thirdly you both accused since April 1988 till April 1989 for aged certain document to wit muster roll by false by showing name of Dasaram Uke as employee of the society and worked in the society during above period and thereby committed an offence punishable under section 468 I.P.C.

(4) Fourthly you both accused since April 1988 till April 1989 used forged muster roll and passbook bearing account No.1350 as genuine for withdrawing salary in the name of Dasaram Uke and thereby committed an offence punishable under section 471 of I.P.C.

And I hereby direct that you be tried by on the said charge. Dated this 24 day of June, 1994."

4. The prosecution examined fourteen witnesses to bring

home the charge. P.W.1 is Duryodhan Mahadeo Lonare who, as stated

supra, claims to have witnessed the accused 1 withdrawing cash from

an account purportedly in the name of D.M. Uke. He claims to have

informed about the said withdrawal to one Kolhatkar who has been

examined as P.W.7. He admits that he was dismissed from service in

view of conviction for offence of theft of bullock. The suggestion by

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the defence is false implication due to grudge, which suggestion is

denied by the witness.

5. P.W.2 Yadaorao Ramji Bhandarkar is a panch witness who

deposes that record of the Bhandara District Central Co-operative Bank

was seized by P.S.I. Karmarkar on 28-08-1991 and proves the seizure

panchanama Exh. 30. He further deposes that on the same day P.S.I.

Karmarkar obtained the specimen of handwriting of both the accused

persons in his presence under two separate panchanamas (Exhs.31 and

32). The testimony of P.W.2 has gone unrebutted. P.W.3 Majid

Raheman Sheikh is again a witness to the panchanama who, however,

was declared hostile. Nothing material has come on record during his

cross-examination by the prosecution. Similarly, P.W.4 Shankar

Bhajankar who was also cited as a panch witness to the seizure did not

support the prosecution and was declared hostile.

6. P.W.5 Sukhram Nagose who was working in the school as

a peon states that there was no peon by name Dasaram Ukey during

the period of his employment since 1953 to 1990. His evidence has

gone unchallenged.

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7. P.W.6 Vitthal Raut who was examined to prove the seizure

did not support the prosecution and was declared hostile. He was

examined to prove the seizure panchanama in relation to the school

record. In the cross-examination, the usual suggestions were put to

him to the effect that he was attempting to help the accused due to

personal relation, which suggestions are denied by the witness.

8. In the context of the charge, P.W.7 Tanu Kolhatkar is a

material witness. It was P.W.7 to whom P.W.1 narrated the incident of

the alleged fraudulent operation of the bank account in the name of

D.M. Uke and the alleged withdrawal of amount from the said account

by P.W.1. The said witness claims to have made necessary enquiries

with the pay unit and further claims to have gathered the knowledge

that salary bill amount of thirteen months and twenty-three days in the

name of Dasaram Uke was withdrawn from bank account 1350 with

Bhandara District Central Co-operative Bank. P.W.7 claims that the

said account was opened by accused 1 and that it was accused 2 who

operated the same. During cross-examination, he admits that he has

no personal knowledge of the allegations made during the cross-

examination and that neither the account was opened in his presence

nor was the account operated by any person in his presence. The

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defence has brought on record certain omissions which according to

the defence are material and therefore, partake the character of

contradiction. P.W.7 admits that he was serving as an assistant

teacher in Adarsha Vidyalaya from 1983 to 1986 and that since

October 1987 he joined Lalbahadur Vidyalaya since he was declared

surplus in Adarsha Vidyalaya. In response to a question in the cross-

examination, P.W.7 agrees that the surname Uke is found in nomadic

tribe and that the name in the order of appointment dated 06-05-1988

with which P.W.7 was confronted reveals the name as Dasaram Uike.

The effort of the defence was to suggest to the witness that there could

be two persons with similar names and that the person D.M. Uike in

whose favour the appointment order may have been issued has no

nexus with D.M. Uke in whose name bank account 1350 is allegedly

opened. The witness has denied a suggestion that he was deposing

falsely since he bore a grudge against the accused 1 due to certain

disputes relating to arrears of salary. P.W.8 Rambhau Shende is a

teacher working with Adarsha High School who has deposed that there

was no person by name D.M. Uke serving in any capacity in the school.

He admits that since he was serving in the morning shift, he had no

concern with the day shift.

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9. P.W.9 is one Dasaram Motiram Uke and substantial

reliance is placed by the prosecution on the testimony of P.W.9 to

unfold the story of the prosecution and to bring home the charge.

P.W.9 has deposed that he approached accused 1 with a request to

employ him as a peon upon which he was assured by the accused of

such appointment with a rider that P.W.9 would have to work at the

site of the construction of the residential house of accused 1. P.W.9

deposes that he did work at the construction site for two and half

months on daily wage of Rs.10/-. However, since he did not receive

the appointment order and later on was selected as the police

constable, he did not pursue the request for appointment as a peon.

P.W.9 states that he had never worked in the school nor has he opened

account 1350 with the Bhandara District Central Co-operative Bank.

He states that he did not receive the appointment order dated 06-05-

1988. During the cross-examination, he admits that the appointment

letter is addressed to Dasaram Motiram Uike and that his surname is

Ukey and not Uike. He admits that he did not lodge any complaint

with the police despite receiving the information from P.W.7 that a

suspicious account 1350 is being operated allegedly by accused 1 and

2.

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10. P.W.10 Sahdeo Nipane is the former Branch Manager of

Bhandara District Central Co-operative Bank who proves the seizure of

the relevant bank record (the seizure panchanama is at Exh.52). He

states that true copies of specimen signatures available in relation to

the bank account in dispute were given to the police alongwith the

relevant record. He has proved the true copies of the specimen

signature which are at Exhs. 53 and 54 on the record of the learned

trial Court. His testimony has gone unchallenged. P.W.11 Purushottam

Gaikwad is also an officer of the Bhandara District Central Co-

operative Bank who proved the account opening form in relation to the

disputed account. The said witness has not been cross-examined.

11. P.W.12 Shankarrao Hemne is a teacher at Adarsha High

School who has deposed that there was no peon named Dasaram

Motiram Uke working with the school. P.W.13 Purushottam Pilhare

was examined to prove the seizure panchanama in relation to the bank

record. The said witness did not support the prosecution and was

declared hostile. The cross-examination by the prosecution has not

brought on record any significant material. The last witness is P.W.14

Avinash Karmarkar who is the Investigating officer. The Investigating

Officer has deposed that all seized documents were referred to the

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handwriting expert and has proved the covering letter which is at

Exh.68 and the further transmission letter of Superintendent of Police,

Bhandara which is at Exh.69. The Investigating Officer has further

deposed that the record received from the Zilla Parishad, Bhandara

inter alia the pay bills and related original documents which running

into 124 pages is placed on record. The Investigating Officer has

proved the covering letter accompanying the said record which is at

Exh. 72.

12. The learned trial Court, by the judgment of acquittal

impugned, was pleased to record a finding that the trial of the accused

1 and 2 is only on the basis of a suspicion and that the prosecution has

failed to prove the alleged offence in the light of the fact that although

record pertaining to the muster roll, the pay bills and the opening and

operation of the disputed account was seized, neither the report of the

handwriting expert is placed on record nor have the documents, which

would have brought to fore the truth, proved in accordance with law.

13. Heard Shri A.V. Palshikar, learned Additional Public

Prosecutor for the appellant, Shri A.Z. Jibhkate, learned Advocate for

respondent 1 and Shri M.L. Bhure, learned Advocate for respondent 2.

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14. The learned Additional Public Prosecutor would urge that

the learned trial Court felt in serious error in acquitting the accused

and that in view of the fact that accused 1 was the principal and

accused was the dealing clerk, there was ample material on record to

hold them guilt of the offences punishable under Sections 406, 420,

468, 471 and 201 read with Section 34 of the Indian Penal Code. He

would urge that amount received from the Government as salary grant

towards payment of the salary is an entrustment and the logical

consequence would be that accused 1 as the principal and accused 2 as

the dealing clerk were duty bound to explain the criminal breach of

trust. The learned Counsel appearing for respondent 1 and 2

contended that the judgment of acquittal is a well reasoned order and

that the view taken is not only a plausible view but is the only view.

The learned Counsel appearing for the accused would further urge that

even if a different view is possible, this Court may not substitute its

own view for the view taken since the view of the learned trial court is

certainly not perverse.

15. With the assistance of the learned Additional Public

Prosecutor and learned Counsel appearing for the respondents/

accused, I have given my anxious consideration to the record and the

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reasons recorded by the learned trial Judge. I have no hesitation in

holding that the view of the learned trial Judge that no offence is made

out, is not only a possible or plausible view, it is the only view which

could have taken in the teeth of the evidence on record. In order to

substantiate the charge, it was incumbent on the prosecution to prove

that the accused 1 and 2 with common intention dishonestly and

fraudulently showed that one D.M. Uike was working with the school

as a peon and that the salary grant received from the State

Government for payment of Shri D.M. Uike was deposited in the

disputed account. It was further necessary for the prosecution to prove

that the disputed account was opened and operated by accused either

individually or jointly with a common intention of fraudulently

withdrawing the amount deposited in the said account. It was further

necessary for the prosecution to prove that the accused forged the

muster roll or the pass-book and used the forged documents to open

and operate the disputed account. I am afraid the entire approach of

the investigating machinery displaces a pathetic and callous in

difference to its role and responsibility. The investigating officer did

seize the relevant record from the school and the Bhandara District

Central Co-operative Bank. The investigating officer also obtained the

specimen signatures of the accused and sent the same to the

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handwriting expert. The investigating officer received voluminous

record running into 124 pages in relation to the pay bills and related

original documents which may have thrown light on the allegation that

one person whether Uke or Uike was fraudulently shown in the school

record as a peon. Unfortunately the report of the handwriting expert is

not on record. There is no explanation as to why the report of the

handwriting expert could not be procured. What is more shocking is

that the prosecution has made no effort whatsoever to prove the

documents in relation to the disputed account. Every document in

relation to the operation of the disputed account was seized including

approximately eight withdrawal slips. The prosecution has not

bothered to prove any of the relevant documents seized in relation to

the opening and operation of the disputed account. It is equally

shocking that no attempt was made by the prosecution to prove the

documentary material seized from the school.

16. The learned trial judge has given considerable importance

to the fact that the existence of two persons one D.M. Uke and the

other D.M. Uike is eminently possible. The learned trial Judge is

persuaded to take a view that the impugned order is addressed to one

Uike and not to Uke which is the name of the account holder of the

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disputed account. This thinking process of the learned trial Court is

seriously attacked by the learned Additional Public Prosecutor as

illogical and at any rate far-fetched. It is not necessary for me to delve

on the said reasoning at any length inasmuch as there is absolutely no

evidence on record against the accused save and expect the oral

testimony of P.W.1 who alleges that he happened to be in the bank

when the accused 1 received the amount from the cashier when the

name of one D.M. Uke was called out. The oral testimony of P.W.1 is

hardly a confidence inspiring. I must proceed to consider the version

of P.W.1 with same caution as he admits to have been terminated from

the school in view of conviction in a theft offence. The possibility of

false implication due to grudge, as is suggested by the defence in cross-

examination, cannot be ruled out. Moreover, the offence could have

been easily proved by bringing on record admissible documentary

evidence. Not a single document, which is relevant and important, has

been proved by the prosecution. The view of the learned trial Judge, as

rightly contended by the learned Counsel for the respondents/

accused, is certainly not perverse. Au contraire it is the only view

possible given the quality or rather the lack of, of the evidence

adduced by the prosecution. The law is well settled and in view of the

dictum of the Hon'ble Apex Court in plethora of judgments inter alia in

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Basappa vs. .3State of Karnataka reported in (2014)5 SCC 154, I see

no justification in interfering with the judgment and order of acquittal.

The appeal is dismissed. The bail bonds of the appellants shall stand

discharged.

JUDGE

adgokar