Budu Munda vs The State Of Jharkhand Through ...
2021 Latest Caselaw 2971 Jhar

                         1                      Cr. Appeal (SJ) No.1938 of 2004




 IN THE HIGH COURT OF JHARKHAND AT RANCHI
          Cr. Appeal (SJ) No. 1938 of 2004

[Against the Judgment of conviction and Order of sentence
dated 19.10.2004, passed by the learned Special Judge, C.B.I.,
Ranchi in Special Case No. 50/89, 51/89 and 52/89 arising out
of R.C. 2(A)/89 (Pat.)]


Budu Munda, Son of Marju Munda, Resident of Village -
Khunti, P.S. -Khunti, District-Ranchi
                                                    .....           Appellant
                             Versus

The State of Jharkhand                through   Central         Bureau            of
Investigation, Ranchi
                                                    .....       Respondent
                                .....

For the Appellant : Mr. Binod Kumar Singh, Advocate For the C.B.I. : Mrs. Nitu Sinha, Advocate.

.....

PRESENT

HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

By the Court: - Heard the parties through video

conferencing.

2. The appellant has preferred this appeal being

aggrieved by the Judgment of conviction and Order of

sentence dated 19.10.2004, passed by the learned Special

Judge, C.B.I., Ranchi in Special Case No. 50/89, 51/89 and

52/89 arising out of R.C. 2(A)/89 (Pat.) whereby and where

under the learned court below has held the appellant-convict

guilty for the offences punishable under Sections

420/468/477A & 468 read with Section 471 of the Indian Penal

Code as well as Section 5(1) (d) read with Section 5(2) of the 2 Cr. Appeal (SJ) No.1938 of 2004

Prevention of Corruption Act, 1947 corresponding to Section

13(1) (d) read with Section 13(2) of the Prevention of

Corruption Act, 1988 and sentenced him to undergo Rigorous

Imprisonment for a period of two years in each count and also

directed to pay fine of Rs.2,000/- for each of the said offences.

It was also ordered that the sentences shall run concurrently

and in default of payment of fine, the appellant-convict shall

undergo Rigorous Imprisonment for two months for each of

the fine awarded.

3. The brief facts of the case is that the appellant-

convict while posted as Special Assistant in the Bank of India,

Khunti Branch, Ranchi during the period November, 1986 to

February, 1988 entered into criminal conspiracy with Ismile

Soy and Palush Topno and others and abusing his official

position, the appellant-convict falsified the bank records and

misappropriated a sum of Rs.89,870.50/-. Upon enquiry made

by the Central Bureau of Investigation as it was found that

forgery has been committed in the documents besides

cheating, hence F.I.R. of the case was registered and after due

investigation, Central Bureau of Investigation submitted three

charge sheets for different offences committed by the

appellant-convict during the years 1986 to 1988 and

accordingly, cognizance for the offences was taken and

separate charge sheets for the offences punishable under

Sections 420/468/477A & 468 read with Section 471 of the 3 Cr. Appeal (SJ) No.1938 of 2004

Indian Penal Code as well as under Section 5(1) (d) read with

Section 5(2) of the Prevention of Corruption Act, 1947 were

separately framed in the said three separate Special Cases

being Special Case No. 50/89, 51/89 & 52/89.

4. The appellant-convict pleaded not guilty to

charges, hence three trials proceeded separately and witnesses

were examined separately in three cases. During the course of

trial, a prayer was made by the Public Prosecutor appearing

on behalf of the Central Bureau of Investigation to

amalgamate all the three cases and the trial court allowed the

prayer for amalgamating the said three petitions vide order

dated 18.12.2003 as all the three cases were similar in nature,

committed within same span of time and were to be decided

by the same evidence, hence the trial proceeded together. It is

pertinent to mention here that by the time the three cases were

amalgamated by the said judicial order, several common

witnesses were examined separately in this three cases.

5. In support of its case, the prosecution altogether

examined ten witnesses besides proving the documents but no

witness was examined on behalf of the appellant-convict.

6. Out of the witnesses examined by the prosecution,

P.W.6- Paritosh Kumar is the main witness examined on

behalf of the prosecution. He was posted in Khunti Branch of

Bank of India from 15th March, 1984 to 1992 as Clerk-cum-

Cashier. P.W.6 deposed that the appellant-convict was 4 Cr. Appeal (SJ) No.1938 of 2004

working as a Special Assistant along with him in the said

Branch of Bank of India. P.W.6 identified page no. 173 of the

register containing the entries relating to 08.01.1987 out of

which serial no.33 was in the writing of the appellant-convict -

Budu Munda which was marked Ext.-4. He also proved page

no.193 of the said register containing serial no. 34 dated

09.10.1987 which was marked Ext.-4/1. P.W.6 also proved the

Cash Payment Book which was marked Ext.-3/1. The entry

dated 17.11.1986 made by the appellant convict was regarding

the appellant-convict withdrawing Rs.20,000/- from the

Current Account No. 125 of the said bank and on the same

day, before the said withdrawal, Rs.37,090/- was also

withdrawn. The Cheque for Rs.20,000/- of Ranchi Kshetriya

Gramin Bank, Jaltanda Branch was presented in the Bank of

India, Khunti Branch for payment but the appellant-convict

did not pay any cash and issued a cheque though

Rs.91,820.06/- was in the balance of Ranchi Kshetriya Gramin

Bank, Jaltanda Branch and later on Shri A. Pahan withdrew

the amount in cash and the appellant-convict debited the

account of Ranchi Kshetriya Gramin Bank, Jaltanda Branch for

the same but instead of crediting the same to the account of

Bank of India, he credited the said amount in the S.B. account

of Shri Kailash Turi Munda of which account the petitioner

was a joint account holder. The pay-in slip by which the

appellant-convict credited the said account was marked Ext.-8 5 Cr. Appeal (SJ) No.1938 of 2004

and this was the money of the Bank of India which the

appellant-convict dishonestly credited in his bank account and

cheated the bank. P.W.6 further deposed that the appellant-

convict falsified the bank records and prepared forged

documents in this regard. P.W.6 further proved the Daily Cash

Balance Book in which the Cashier makes the entries

regarding the daily receipt and payment of money which was

being carry forwarded from the preceding date and which was

maintained in the official course of business which was

marked Ext.-3/3. Page no.186 contained Ext.-3/3 which is the

entry dated 15.11.1986 on which date, Rs.91,820.06/- was in

balance, on which there was signature of the appellant-convict

and the Branch Manager -Tara Mani Sahu. The entries made in

that page were in the writing of the appellant-convict which

was marked Ext.-4/4. P.W.6 further deposed that on

17.11.1986, the balance amount lying in the account of the

appellant-convict was Rs.91,820.06/-. P.W.6 also proved the

Account Opening-cum-Specimen Signature Card of Saving

Account No. 6306 which stood in the name of Ismile Soy

which was also in the handwriting of the appellant-convict

and the appellant-convict was the introducer of the customer-

Ismile Soy. Another Account Opening-cum-Specimen

Signature Card Account No. 6369 of Mr. Palush Topno was

also in the handwriting of the appellant-convict and he has

signed the same as an introducer. P.W.6 also proved cheque 6 Cr. Appeal (SJ) No.1938 of 2004

no. 483630 dated 01.02.1988 written by the appellant convict

and signed by Ismile Soy. The four withdrawal slips were

marked Ext.-7 to 7/3 and 8. Pay in Slips were marked Ext.-8 to

8/7 and the Debit Vouchers were marked Ext.-9 to 9/8. P.W.6

also proved 13 Credit Vouchers which were in the

handwriting of the appellant-convict which were marked Ext.-

10 to 10/12. He also proved the Special Collection Schedule of

the appellant-convict prepared in the Bank of India, Khunti

Branch in official course of business which was marked Ext.-

11. P.W.6 proved the Debit Voucher filed by the appellant-

convict -Budu Munda which was marked Ext.-9/9 and the

Debit Notes are marked Ext.-12 to 12/2. The two Cash

Withdrawal Slips of Ismile Soy were marked Ext.-7/4 to 7/5.

Though the P.W.6 was cross-examined at length, yet nothing

substantial could be elicited in his cross-examination to

discredit his testimony. The defence did not put any question

to him in respect of any of the documents which has been

proved by him and were marked exhibits. So the testimony of

the PW 6 as far as the same relates to the documents proved

by him has remained unchallenged hence such portion of his

testimony so far as the same relates to proving the documents

as well as the contents of the documents proved by him are to

be treated as true.

7. P.W.7- Mohan Lal was working as the officer in

the Bank of India, Khunti Branch from 15.10.1986 to 7 Cr. Appeal (SJ) No.1938 of 2004

11.06.1988. He proved the Debit Voucher for Rs.8,175/- which

was marked Ext.-9/1 relating to C.D. Miscellaneous Head and

the credit amount was deposited in the account but it was by

interpolation made as Rs.18,175/- thus, the appellant-convict

enhanced the amount by Rs.10,000/-. P.W.7 further stated that

the appellant-convict opened a fake account in which he

transferred Rs.10,000/- and then he withdrew Rs.10,000/- by

issuing a cheque in fake name but in the evening, while the

checking was made in the books of account, then this matter

came to light. The P.W.7 intimated the matter to the Branch

Manager and an enquiry was conducted and it was found that

the appellant-convict has committed the interpolation of

adding the figure '1' before the figure '8'. P.W.7 also stated

about Ext.-8/5 being issued by the appellant-convict as debit

voucher of Rs.10,000/- and deposited in Saving Account No.

6306 and he also confirmed that Ext.-6 is the cheque by which

the appellant-convict withdrew Rs.10,000/-. P.W.7 also

corroborated the testimonies of other witnesses of the

prosecution. Though, call was made by the court for the

accused person of the case that is the appellant-convict here in

for cross-examination of the P.W.7 repeatedly but no one

turned up for cross-examination of P.W.7 on behalf of the

appellant-convict. Hence, the P.W.7 was discharged. Later on

also no effort was made by the defence for cross-examination

of the P.W.7 by way of recalling him for his cross-examination.

8 Cr. Appeal (SJ) No.1938 of 2004

Thus in the absence of any cross-examination, the testimony of

P.W.7 has remained unchallenged and uncontroverted.

8. P.W.8- Korandpani Rajendram was posted in the

office of Bank of India, Khunti Branch from August, 1988 to

July, 1991 and he deposed about the procedure of the bank for

drawing money from the bank by cheque.

9. P.W.9- Ismile Soy is a co-villager and distantly

related to the appellant-convict and as one of the person

whose account has been used by the appellant-convict for

cheating and defrauding the bank. He deposed that at the

request of the appellant-convict, the P.W.9 opened an account

with the said bank and signed various papers.

10. P.W.5- Sarvanarayan Jha did not turn up for his

cross-examination in one of the three special cases but he has

been examined and cross-examined and discharged after cross

examination as P.W.3 in Special Case No. 50/89. The said

Sarvanarayan Jha deposed that he was posted as Manager in

Bank of India, Khunti Branch from May, 1987 to July, 1988. He

has deposed that the duty of the appellant-convict was to pass

the cheque and supervise the work. The appellant-convict has

confessed his guilt by giving his confession in writing. On

being proved by him, the Debit Voucher dated 16.09.1987 was

marked Ext.-1 which was passed by the appellant-convict. He

also proved the Debit Voucher dated 09.01.1987 which was

marked as Ext.-2 and also proved the Credit Voucher dated 9 Cr. Appeal (SJ) No.1938 of 2004

08.01.1987, prepared by the appellant-convict which was

marked Ext.-2/A. Nothing to demolish or discredit the

testimony of Sarvanarayan Jha could be elicited in his cross-

examination nor any question was put by the defence to him

regarding the confession made by the appellant-convict of his

committing the offences, for which he has been held guilty in

this case.

11. P.W.2- Shiv Kumar Dutta was a businessman

dealing with cement. He identified the appellant-convict in

court and submitted that the appellant-convict purchased 10

bags of cement for a consideration amount of Rs.640/- but the

appellant-convict did not pay the price of the cement and

assured the P.W.2 that he would deposit the money in the

bank account of the P.W.2. The P.W.2 proved the entry serial

no.740 of his register of daily transactions.

12. P.W.1- Debashish Mishra was the officer of the

Bank of India, Regional Office, Ranchi from March, 1988 to 12

October, 1988. P.W.1 made an enquiry about the fraud

committed in the Khunti Branch of Bank of India. P.W.1 went

through the record and examined the appellant-convict who

confessed his guilt before the P.W.1 and thereafter deposited

Rs.89,815/-. P.W.1 further stated that there had been

Departmental Proceeding against the appellant-convict and he

was dismissed from service. P.W.1 recorded the statement of

the appellant-convict -Budu Munda and submitted the report 10 Cr. Appeal (SJ) No.1938 of 2004

to the Joint Manager of Bank of India. In his cross-

examination, P.W.1 has stated that at the time of occurrence,

the appellant-convict was posted as an officer with the Bank.

There is absolutely no cross-examination of the P.W.1 about

the material part of his deposition regarding the confession of

his guilt by the appellant-convict and deposit of the cheated

amount by the appellant-convict. Thus this part of the

testimony of the P.W.1 has remained unchallenged.

13. P.W.10- Manjeet Singh is the I.O. of the case. He

has stated about the investigation done by him in this case.

P.W.10 proved the seizure list which was marked Ext.-14 and

other seizure lists which were marked Ext. 14/1 to 14/2.

14. P.W.4- Phulmani Bhengra has stated that the

appellant-convict opening an account of P.W.4 in the said

branch of Bank of India. P.W.4 gave Rs.1,200/- to deposit the

same in his account but the appellant-convict withdrew

Rs.400/- from the account of the P.W.4.

15. P.W.3- Paulush Topno is the other person whose

account was used by the appellant-convict for cheating the

bank. He has stated that the appellant-convict has obtained his

signature on different papers for opening an account in the

bank but he never deposited or withdrawn any money in the

said account and he never deposited Rs.2,640/- in the said

account. His testimony has also remained unchallenged in his

cross examination.

11 Cr. Appeal (SJ) No.1938 of 2004

16. After closure of the evidence of the prosecution,

statement under Section 313 Cr.P.C. of the appellant-convict

was recorded wherein he admitted that he was functioning as

a Special Assistant in Bank of India, Khunti Branch during the

period 1986 to 1988 but he denied cheating the Bank of India

to the tune of Rs.5051.52/- by preparing fake advice in favour

of S.B. Account in the name of Palush Topno and similarly

denied all other materials appearing in the evidence against

him and pleaded innocence.

17. Learned court below after taking into

consideration the evidence in the record observed that the

documents in record establishes that the appellant-convict has

committed forgery and cheating regarding the money of Bank

of India and further went on to observe that the allegation

regarding misappropriation of Rs.20,000/-, Rs.14,119.25/- and

Rs.20,340/- are proved by Ext.-8 (pay in slip dated 17.01.1986),

Ext.-10/11 which is Credit Voucher dated 09.01.1987, Ext.-8/6

which is the Pay in Slip dated 15.09.1987, Ext.-9/8 which is the

Debit Voucher dated 28.09.1987 and Ext.-10/12 which is the

Debit Voucher dated 28.09.1987 respectively. It was further

observed by the learned trial court that the charges relating to

Special Case No. 51/89 framed under Sections 420/468 and

under Section 468 read with Section 471 of the Indian Penal

Code and under Section 5(1) (d) read with Section 5(2) of the

Prevention of Corruption Act, 1947 have been proved by the 12 Cr. Appeal (SJ) No.1938 of 2004

oral evidence as well as documents marked as Ext.-9/3 which

is the Debit Voucher dated 18.11.1987, Ext.-10/7 which is the

Credit Voucher dated 09.10.1987, Ext.-9/5 which is the Debit

Voucher dated 26.11.1987, Ext.-10/9 which is the Credit

Voucher dated 01.02.1988, Ext.-9/4 which is the Debit Voucher

dated 18.11.1987 and Ext.10/8 which is the Credit Voucher

dated 18.11.1987 respectively regarding the amount of

Rs.750/-, Rs.1,200 & Rs.8,750/- respectively of the bank. It was

further observed by the learned court below that the

prosecution proved the charge framed against the appellant-

convict under Sections 420/468/477A & 468 read with Section

471 of the Indian Penal Code and under Section 5 (1) (d) read

with 5 (2) of the Prevention of Corruption Act, 1947 by means

of oral evidence as well as documentary evidence i.e. Ext.-8/2

which is the pay in slip dated 15.12.1987. Ext.-9/6 & 9/7 which

are the Debit Vouchers dated 06.01.1988 and Ext.7/4 which is

the withdrawal slip dated 28.09.1987 regarding Rs.5,051.52

and Rs.10,000/- respectively and held the appellant-convict

guilty and convicted and sentenced him as already indicated

above.

18. Mr. Binod Kumar Singh, the learned counsel for

the appellant-convict submits that the Judgment of conviction

and order of sentence is perverse and based upon hypothesis

and conjectures. It is next submitted by the learned counsel

for the appellant-convict that the learned court below erred by 13 Cr. Appeal (SJ) No.1938 of 2004

not holding that the prosecution has failed to prove any of the

charges for which the appellant-convict was facing the trial. It

is then submitted that since the appellant-convict has already

deposited the cheated amount and he has been dismissed from

service so, he ought not to have been convicted for the charges

for commission of the same acts, by the learned trial court. It is

further submitted by the learned counsel for the appellant-

convict that P.W.5- Sarvanarayan Jha having not turned up for

cross-examination, his testimony ought not have been

considered by the learned court below and as the seizure lists

of seizure of records of the bank by the investigating agency,

have not been signed by any witness apart from the person

from whom the documents were seized and the person by

whom the documents were seized, the same ought not to have

been relied upon by the learned trial court as the same does

not inspire confidence. Though it is submitted by the learned

counsel for the appellant-convict that the cheque being Ext.6

does not bear the signature on the back side but this

submission of the learned counsel for the appellant-convict is a

fallacious one; because perusal of Ext.6 reveals that the

signature is appearing on the front of the cheque and the back

side of the cheque as well. It is further submitted by the

learned counsel for the appellant-convict that the appellant-

convict is an old person of about 69 years. Hence, the

impugned Judgment of conviction and Order of Sentence be 14 Cr. Appeal (SJ) No.1938 of 2004

set aside and the appellant-convict be acquitted by at least

giving him the benefit of doubt.

19. Mrs. Nitu Sinha, the learned counsel for the C.B.I.

on the other hand defended the impugned judgment of

conviction and order of sentence and submitted that Ext.-14 is

of 07.04.1989 and Ext.-14/1 is dated 08.04.1989 and the

Prevention of Corruption Act, 1988 received the assent of the

President of India on 09.09.1988 and published in the Gazette

dated 12.09.1988 hence, on the date of seizure, Section 18 of

Prevention of Corruption Act, 1988 which reads as under :-

18. Power to inspect bankers' books.--If from information received or otherwise, a police officer has reason to suspect the commission of an offence which he is empowered to investigate under section 17 and considers that for the purpose of investigation or inquiry into such offence, it is necessary to inspect any bankers' books, then, notwithstanding anything contained in any law for the time being in force, he may inspect any bankers' books in so far as they relate to the accounts of the persons suspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this section:

Provided that no power under this section in relation to the accounts of any person shall be exercised by a police officer below the rank of a Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police.

Explanation.--In this section, the expressions "bank" and "bankers' books" shall have the meanings respectively assigned to them in the Bankers' Books Evidence Act, 1891 (18 of 1891).

was in force so in the absence of any witness appending

his signature to a seizure list in respect of seizure of 15 Cr. Appeal (SJ) No.1938 of 2004

documents of the bank by the investigating officer will not

cause any prejudice to the defence. It is further submitted by

Mrs. Nitu Sinha, learned counsel for the Central Bureau of

Investigation that otherwise also, the witnesses examined by

the prosecution have proved all the documents seized by the

Central Bureau of Investigation one by one and as nothing has

been asked in their respective cross-examination to them to

challenge their testimonies regarding the documents proved

by them to the effect that the evidence put forth by them to be

untrue or false or for that matter to question the genuineness

of seizure of the documents which ultimately proved by the

witnesses so, in the absence of any cross-examination of any of

the prosecution witnesses who have proved the documents i.e.

the credit vouchers, debit vouchers, cheques and withdrawal

slips, the same remains unchallenged and uncontroverted

hence, the same is to be accepted as truth and thus witness is

not appending that the signature to such seizure lists is of no

consequence and certainly cannot be treated as a ground

adverse to the prosecution, in the facts of this case. It is next

submitted by the learned counsel for the Central Bureau of

Investigation that none of the witnesses of the prosecution has

been cross-examined in any manner on any material part of

their testimonies and thus, the same has also remained

unchallenged. It is further submitted by the learned counsel

for the Central Bureau of Investigation that since the 16 Cr. Appeal (SJ) No.1938 of 2004

prosecution has proved its case basing upon documents which

has remained unchallenged and uncontroverted, hence the

learned court below has rightly convicted the appellant-

convict for each of the offences of which he has been convicted

and for which charges have been framed in the three separate

proceedings which were ultimately amalgamated. It is then

submitted by the learned counsel for the Central Bureau of

Investigation that keeping in view huge amount of defalcation

made by the appellant-convict being the officer of nationalized

bank, the sentence is also proper. It is lastly submitted that the

learned court below having rightly convicted and sentenced

the appellant-convict, this appeal being without any merit be

dismissed.

20. Having heard the submissions made at the Bar

and after going through the materials in the record, it is

pertinent to mention here that it is a settled principle of law

that if a party wishes to raise any doubt as regards the

correctness of the statement of a witness, the said witness

must be given an opportunity to explain his statement by

drawing his attention to that part of it, which has been

objected to by the other party, as being untrue and without

this, it is not possible to impeach his credibility. The Hon'ble

Supreme Court of India in the case of Laxmibai (Dead) Thr.

Lrs. & Anr. v. Bhagwantbuva (Dead) Thr. Lrs. & Ors.

17 Cr. Appeal (SJ) No.1938 of 2004

reported in AIR 2013 SC 1204, paragraph no. 31 of which

reads as under:-

31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination-in-chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See Khem Chand v. State of H.P. [1994 Supp (1) SCC 7 : 1994 SCC (Cri) 212 : AIR 1994 SC 226] , State of U.P. v. Nahar Singh [(1998) 3 SCC 561 : 1998 SCC (Cri) 850 : AIR 1998 SC 1328] , Rajinder Pershad v. Darshana Devi [(2001) 7 SCC 69 : AIR 2001 SC 3207] and Sunil Kumar v. State of Rajasthan [(2005) 9 SCC 283 : 2005 SCC (Cri) 1230 :

AIR 2005 SC 1096] .) (Emphasis supplied)

It is pertinent to mention here that there are

instances galore when the Hon'ble Supreme Court of India has

held that in the absence of cross-examination of a witness, the

evidence of such witness has remained unchallenged and are

to be believed as has been held by the Hon'ble Supreme Court

of India in the case of State of U.P. v. Nahar Singh (Dead) & 18 Cr. Appeal (SJ) No.1938 of 2004

Ors., reported in AIR 1998 SC 1328, paragraph nos. 13 & 14 of

which reads as under:-

13. It may be noted here that that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:

(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 R 67] clearly elucidates the principle underlying those provisions. It reads thus:

"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."

This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing. (Emphasis supplied) 19 Cr. Appeal (SJ) No.1938 of 2004

As already indicated above, there is absolutely no

cross-examination of any of the material witnesses examined

by the prosecution in this case in respect of the material parts

of their deposition particularly regarding the contents of each

of the documents proved by the respective witnesses of the

prosecution consequent upon which the said documents have

been marked as exhibits and nothing has been elicited in any

of the cross-examination of the witnesses to impeach their

credibility. The P.W.7 has not been cross-examined at all. The

prosecution has established the ingredients of the offences for

which three separate charges were initially framed in three

separate cases but later on the three cases have been

amalgamated by the judicial order passed by the learned court

below. The evidences as already indicated above mainly

through documentary evidence as referred to in the judgment

in detail by the learned trial court and as quoted in this

judgment also goes to show that the appellant-convict has

cheated Bank of India, a nationalized bank of Rs.5051.52 by

preparing a fake advice in the name of Palush Topno and

Palush Topno who has been examined as P.W.3 has

categorically stated that he has not done the said transactions

in his alleged account. Further the appellant-convict cheated

the said bank of Rs.10,000/- by crediting the said amount in

account no.6306 by withdrawing the said amount from the 20 Cr. Appeal (SJ) No.1938 of 2004

Sundry Account and also cheated another sum of Rs.10,000/-

by interpolating the advice by putting the figure '1' before the

amount Rs.8,175/- to make to Rs.18,175/- and P.W.7 who has

been examined in this respect has not cross-examined at all by

the appellant-prosecution and his testimony in this respect has

remained unchallenged and uncontroverted hence the same is

to be accepted as the truth. Moreover the appellant-convict has

also cheated Bank of India to the tune of Rs.750/- by preparing

a fictitious voucher and Rs.1,200/- by debiting the Sundry

Deposit. It also established that the appellant-convict cheated

Bank of India, Khunti Branch to the tune of Rs.8,750/- by

debiting a Sundry Deposit. The witnesses as already indicated

above have already stated about the confession of guilt by the

appellant-convict and depositing of the said cheated amount

of Rs.89,815/-by the appellant-convict with the bank. The said

fact is also admitted by the learned counsel for the appellant-

convict in this appeal but his plea is that in view of the said

deposit of the cheated amount by the appellant-convict and as

the Departmental Proceeding resulted in dismissal of the

appellant-convict from his service, the appellant-convict ought

not have been convicted by the learned court below has no

legs to stand as the offences punishable under the penal

provision of the Indian Penal Code as well as Prevention of

Corruption Act, 1947 in respect of which charges have been

framed in this case; were committed, the moment the 21 Cr. Appeal (SJ) No.1938 of 2004

appellant-convict cheated the bank of the said amount after

committing forgery, falsifying accounts of the bank and using

forged documents as genuine in capacity of a public servant

being an officer of a public sector bank having committed

misconduct. The Departmental Proceeding is a separate and

independent proceeding in the administrative side of the bank

relating to service of the appellant-convict with bank and the

offences committed which is punishable under a penal

provision of law is entirely a different proceeding and hence,

the appellant-convict having been held guilty in Departmental

Proceeding leading to his dismissal from service or for that

matter the defaulted amount having been deposited by the

appellant-convict with the bank subsequent to the commission

of the offence being detected by the officers of the bank,

cannot be a ground for not proceeding against him for having

committed the offences punishable under the penal provisions

of law or his conviction upon evidence being brought on

record in respect of the charges which he faced in the trial. The

deposit of the cheated amount by the appellant-convict has

only absolved him of his civil liabilities to the bank and not the

criminal liability.

21. So far as the contention of the appellant-convict

regarding Ext.-14 and 14/1 being not signed by any

independent witnesses is concerned, it is certainly not a

ground to discard the said two exhibits entirely. The omission of 22 Cr. Appeal (SJ) No.1938 of 2004

getting the seizure list signed by the independent witnesses

though undisputedly, the same has been signed by the person

who is a public servant and who is not involved in any offence

handed over the document voluntarily to another public

servant officer of Central Bureau of Investigation certainly

cannot cause any prejudice to the defence more so, when the

seizure of the said document itself has not been challenged by

the defence in the cross-examination of the relevant witnesses

of the prosecution, who have proved the said seizure lists

which have been marked Ext.-14 & 14/1 and also the contents

of each of the documents which have been seized by the

central bureau of investigation as mentioned in the said two

exhibits. So far as the contention of the appellant regarding

non-examination of P.W.5- Sarvanarayan Jha is concerned,

undisputedly the said P.W.5- Sarvanarayan Jha has been

examined, cross-examined and discharged as P.W.3 in special

case number of 50/89 hence in view of the amalgamation of

the three cases the substantive evidence put forth by the

P.W.5- Sarvanarayan Jha in one of the cases as P.W.3 in

another case cannot be said to have caused any prejudice to

the appellant-convict either. So this contention of the

appellant-convict is not sustainable in law.

22. Under such circumstances, this Court is of the

considered view that the evidence in the record is sufficient to

establish each of the charges against the appellant-convict 23 Cr. Appeal (SJ) No.1938 of 2004

beyond reasonable doubt and keeping in view the series of

cheatings leading to institution of three separate cases, of

course, later on being amalgamated to one case, the sentence

of two years Rigorous Imprisonment and fine of Rs.2,000/-

with the default clause for undergoing sentence of two months

in case of default for each of the offences is proper.

Accordingly, this appeal being without any merit is dismissed

and the conviction as well as sentence of the appellant-convict

as has been made by the learned trial court is upheld.

23. Perusal of the record reveals that the appellant-

convict -Budu Munda is in custody.

24. Let the Lower Court Records be sent back to the

learned court below along with a copy of this Judgment

forthwith.

25. In view of the dismissal of this appeal, the

interlocutory application no. 102 of 2021 is dismissed being

infructuous.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 18th August, 2021 AFR/ Sonu-Gunjan/-