P.Venkata Laxmi Narsimha Rao, ... vs State, Thrps. Rajendranagar. Rep ...
2022 Latest Caselaw 1835 Tel

                HONOURABLE JUSTICE G.SRI DEVI

                  CRL.R.C.Nos.674 and 697 of 2014

COMMON JUDGMENT:

      Both the Criminal Revision Cases are being disposed of by this

common judgment since they are directed against the common

judgment, dated 25.03.2014, passed in Crl.A.No.98 of 2009 and

Crl.A.No.104 of 2009 on the file of the Motor Vehicle Accident

Claims Tribunal-cum-XI-Additional District and Sessions Judge

(FTC), Ranga Reddy District.


      The revision petitioner in Crl.R.C.No.674 of 2014 is A-2 and

the revision petitioner in Crl.R.C.No.697 of 2014 is A-3. For the sake

of convenience, they will be hereafter referred to as A-2 and A-3

respectively.


      The case of the prosecution is that the State Bank of

Hyderabad has opened its Branch in the campus of National

Institute for Rural Development (NIRD), Rajendranagar, for NIRD

transactions through its account No.843.        On 16.10.2002, A-1

(Raghavendra) has opened an S.B. Account No.959 and R.D Account

No.838 in S.B.H., NIRD Extension Counter, Rajendranagar, without
                                  2


his photograph with the active connivance of A-2 and A-3, who were

working as Junior Assistant and Attender respectively in the said

branch (revision petitioners herein). A-4 has allowed opening the

account of A-1 without observing any bank rules and norms. A-1

was introduced as Civil Contractor of NIRD by A-3. An amount

Rs.13,92,000/- was credited to the savings bank account of A-1

through four cheques bearing Nos.765675, dated 16.10.2002; 765674,

dated 24.10.2002; 765678 dated 13.11.2002 and 765677 dated

24.12.2002 from NIRD Account No.843 and that A-1 has withdrawn

an amount of Rs.13,87,000/- from his S.B. Account No.959 through

nine cheques vide Nos.757621 dated 16.10.2002; 757623 dated

25.10.2002; 757624 dated 26.10.2002; 757652 dated 26.10.2002; 757626

dated 26.10.2002; 757629 dated 13.11.2002; 757630 dated 15.11.2002;

757632 dated 26.10.2002 and 757633 dated 04.01.2003.       A-4 has

passed two cheques and A-7 has passed another two cheques that

were credited from Account Nos. 843 to 959 of A-1 for an amount of

Rs.13,92,000/- without any verification. Subsequently, A-1 has

withdrawn an amount of Rs.13,87,000/- from his S.B. Account

No.959, where A-4 has passed six cheques, A-7 has passed three

cheques, and A-8 has passed one cheque of A-1. From this amount,
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Rs.4,02,000/- has been withdrawn by A-3 on behalf of A-1 on

26.12.2002. The NIRD employee and the bank officials i.e., A-3 to

A-8 were colluded with A-1 and conspired to cheat the SBH, NIRD

Extension Counter by forging the signatures and misappropriated

the huge amount of Rs.13,92,000/-, thereby the SBH, NIRD

Extension has reimbursed an amount of Rs.13,92,000/- to NIRD on

30.04.2003 due to their negligent acts. Hence, A-1 has committed the

offences punishable under Sections 420 and 468 of I.P.C.; A-2 to A-8

have committed the offences punishable under Sections 420, 409,

468, 471 and 120B read with Section 34 of I.P.C. After completion of

investigation, the Police filed charge sheet against A-1 to A-8 for the

aforesaid offences, which was taken cognizance as C.C.No.2437 of

2005 against A-2, A-3, A-5 to A-8 and the case against A-1 and A-4

was split up vide C.C.No.492 of 2006 as they were absconding.


      On appearance of A-2, A-3, A-5 to A-8, separate charges under

Sections 120B and 406 of I.P.C. were framed, read over and

explained to them, to which they pleaded not guilty and claimed to

be tried.
                                  4


      The prosecution, in order to prove its case, examined P.Ws.1

to 13 and got marked Exs.P1 to P56. No witness was examined on

behalf of the accused, however, Ex.D1 was marked. After closure of

the prosecution evidence, A-2, A-3 and A-5 to A-8 were examined

under Section 313 Cr.P.C.


      The trial Court, on appraisal of entire evidence both oral and

documentary, held that the prosecution has proved its case against

A-2 and A-3 for the offence punishable under Section 120B of I.P.C.

and accordingly convicted and sentenced them to undergo rigorous

imprisonment for a period of six months each and to pay a fine of

Rs.500/- each, in default, to suffer simple imprisonment for a period

of one month each. However, the trial Court acquitted A-2 and A-3

for the offence punishable under Section 406 of I.P.C and A-5 to A-8

for the offences with which they were charged. Challenging the

conviction and sentence, A-2 filed Crl.A.No.98 of 2009 and A-3 filed

Crl.A.No.104 of 2009. By its common judgment, dated 25.03.2014,

the learned XI Additional District and Sessions Judge (FTC), Ranga

Reddy District, dismissed both the appeals and confirmed the

conviction and sentence imposed against A-2 and A-3. Aggrieved
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by the same, A-2 and A-3 preferred the present Criminal Revision

Cases.


      Heard both sides and perused the entire material available on

record.


      Learned Counsel appearing for A-2 would submit that there is

no incriminating evidence against A-2 in the charge sheet nor is any

specific instances alleged and proved in support of the allegation

under Section 120B of I.P.C. and even none of the prosecution

witnesses deposed against A-2 and as such he is entitled for

acquittal. It is further submitted that the departmental enquiry for

the similar charges against A-2 resulted in exoneration of A-2 from

the charges and thereby the Courts below ought to have acquitted

A-2; that both the Courts below ought to have appreciated that A-2

was made a scapegoat in the case linking the allegations to him

which are not established even from the remote evidence.       It is

further submitted that Ex.P28 standard writings of A-2 is not

compared with any other document; that the conviction on surmises

and conjectures is bad, illegal and absurd against all canons of

criminal jurisprudence and that the conviction as arrived at by the
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Courts below is not based on the evidence of P.W.1 and P.W.2 which

is contradictory to each other and as such the same is liable to be set

aside.     The learned Counsel for A-2 relied upon the following

judgments:

    1. B.H.Narasimha Rao v. Government of A.P.1
    2. Subramanian Swamy v. A.Raja2
    3. Rajiv Kumar v. State of Uttar Pradesh and another3
    4. State of Maharashtra and others v. Somnath Thapa and
         others4
    5. Firozueddin Basheeruddin and others v. State of Kerala5
    6. State (N.C.T. of Delhi) v. Navjot Sandhu6
    7. State through Supdt. Of Police, CBI/SIT v. Nalini and others7

         Learned Counsel appearing for A-3 would submit that the

Courts below ought to have acquitted A-3 for the offence under

Section 120B of I.P.C. as he was acquitted for the offence under

Section 406 of I.P.C. It is further submitted that the appellate Court

has confirmed the conviction on the ground that A-3 had introduced

A-1 for opening the S.B. Account, however, it is not the case of the

prosecution that A-3 being the employee of the Bank should not

1
  AIR 1996 SC 64
2
  (2012) 9 SCC 257
3
  (2017) 8 SCC 791
4
  (1996) 4 SCC 659
5
  (2001) 7 SCC 596
6
  AIR 2005 SC 3820
7
  (1999) 5 SCC 253
                                    7


introduce customers to the Bank to open the account as per the

service conditions of the Bank.        The prosecution has failed to

establish that introducing a customer to open the bank account

attracts penal provision as per the service conditions of the SBH. It

is further submitted that the appellate Court ought to have seen that

whether the SB Account was opened with photo or without photo is

not the concern of A-3 and it is not his duty to verify whether the

application is in the prescribed format or not. The appellate Court

ought to have seen that the prosecution had not proved that

depositing the amount in the account of the customer at his request

by signing on the pay-in- slip is contrary to the service conditions of

the bank and it attracts penal provision. It is further submitted that

the appellate Court ought to have seen that prosecution has failed to

establish that withdrawing the cash on behalf of the account holder

by signing on the back side of the cheque at the instructions of the

account holder is an offence as per the service conditions of the SBH.

The appellate Court ought to have seen that when A-3 is not part of

criminal breach of trust within the meaning of Section 406 of I.P.C.

he is also not guilty of the offence under Section 120B of I.P.C.
                                   8


      Learned Assistant Public Prosecutor appearing for the

respondent/State would submit that the documents containing the

standard and questioned signatures of A-2 and A-3 were sent to the

Expert and that the report of the Expert and the oral and

documentary evidence on record connect A-2 and A-3 for the

offences with which they were charged. He further submits that it is

evident from the evidence of P.W.5 that A-3 has withdrawn an

amount of Rs.3,00,000/- and later remitted the same and as such the

prosecution has proved its case beyond all reasonable doubt against

A-2 and A-3. He further submits that the Courts below, after

considering the oral and documentary evidence, have rightly found

the revision petitioners/A-2 and A-3 guilty for the offence

punishable under Section 120B of I.P.C. by assigning cogent reasons.

P.W.1, the then Financial Advisor and Pay and Accounts

Officer of NIRD, categorically stated in his evidence that the

Accounts Officer and Cashier are the custodians of cheques and

responsible for transaction regarding the cash and A-2, who was

working as L.D.C. at the relevant point of time, assisted the cashier.

He further stated that there is no office order to show that A-2 was

concerned with the cheque books or requisition slips. P.W.2, the

then Senior Accountant at NIRD, stated that A-2 was an employee of

NIRD, whereas A-3 and A-6 were the employees of SBH Extension

Counter, NIRD and on 17.04.2003, P.W.1 informed him that a cheque

issued from NIRD was not being honoured by SBH bank for want of

funds and that he asked him to accompany him to SBH and

accordingly he along with P.W.1 went to SBH Extension Counter,

NIRD, and on verification, he came to know about the fraud of

Rs.13.92 lakhs under Exs.P1 to P4. However, his evidence did not

support the case of the prosecution or any suspicion against A-2. He

categorically stated that the reconciliation statements are being sent

every month by the bank, however, he did not state as to how the

amounts were withdrawn from October to December, 2002.

However, P.W.3, who was working as cashier at NIRD, has not

supported the case of the prosecution and has been declared hostile

by the prosecution.

P.W.4, the then in charge Manager, SBH Extension Counter,

NIRD, has stated that on 17.04.2003 he received a cheque No.733831

dated 31.03.2003 of Account No.893 for Rs.4,27,930/- for crediting

the amount to Income Tax Department and on verification, he found

that there was balance of Rs.89,000/- in the account and as such he

informed the same to the Administrative Officer, who came and

obtained the statement of account, and thereafter he came to know

that an amount of Rs.13.92 lakhs was credited to the account No.959

through forged cheques.

The evidence of P.W.5, who was deputed to work in SBH

Extension counter, is that on 28.12.2002 he came to know that A-3

has withdrawn a sum of Rs.3.00 lakhs from the account of A-1 and

thereafter the same was remitted into the bank account.

P.W.6, the then Chief Manager, SBH, Rajendra Nagar Branch,

stated in his evidence that in the year 2003, he came to know about

insufficiency of amount in Account No.843 to honour a cheque for

Rs.4,27,930/- and as such he rushed to the Extension Counter and on

verification he found that an amount of Rs.13.92 lakhs was

transferred from Account No.843 to 959 of A-1 through four or five

cheques and that he came to know that on the introduction by A-3,

the account of A-1 was opened in the bank. He further stated that

on verification of records, it came to light that one A.V.Ramana

(P.W.7) issued requisition slip for issuance of cheque book.

However, it has come in the evidence that the said cheque book was

not entered into the cheque book issue register at the relevant point

of time. He further deposed that on 26.12.2002, A-3 collected a sum

of Rs.4.00 lakhs from the Account No.959 of A-1 and when A-1 did

not turn up for receiving the amount and when the Officer-in-charge

of Branch, NIRD, informed him about the drawing of amount by

A-3, he instructed the officer to collect the amount from A-3 and

accordingly, the amount was collected from A-3 and kept the same

in the joint custody to be handed over to A-1. He further deposed

that on 27.12.2002, A-5, who was in charge of the Bank, entrusted the

amount of Rs.4.00 lakhs to A-6, who in turn handed over the same to

A-1. He further stated that A-3 collected a sum of Rs.5,000/- from

the account of A-1 by presenting Ex.P18-Cheque, however,

according to this witness, the said cheque bears the signatures of A-1

and A-3. He further stated that the said sum of Rs.5,000/- was also

remitted to the bank account.

P.W.7, the then Accounts Officer of NIRD, stated that he

verified the requisition slip and found that the signature contained

on the requisition slip was not that of him, which goes to show that

the evidence of P.Ws.7 is quite contrary to the evidence of P.W.6 in

respect of signature appearing on the requisition slip for issuance of

cheque book. Thus, according to this witness, there is no evidence on

record as to who has given the requisition slip for issuance of cheque

book.

P.W.8, the then Chief Manager, Vigilance Department, SBH

Head Office, Hyderabad, stated in his evidence that during his

enquiry, it was revealed that a sum of Rs.13,92,000/- was credited to

the account of A-1 under Exs.P1 to P4 and the requisition slip for

issuing of cheque book in question was said to have been signed by

P.W.7. However, the same was categorically denied by P.W.7 and

that too the said requisition slip was not sent to Handwriting Expert

for comparison. He deposed that in his enquiry report he concluded

that A-3 can be suspected for opening of the account in the name of

A-1 without following the procedure "Know Your Customer",

however he categorically stated that he did not verify the specimen

signatures of the two accounts of A-1 to confirm whether they are

one and the same and that he does not know whether, on the date of

commission of offence, A-5 was having any power to pass the

cheque for Rs.25,000/- or not.

That apart, P.W.8, in his Enquiry report under Ex.P6, observed

that the safe custody of the cheque books/requisition slips was not

paid due importance by the bank officials. He further stated that

when an high value cheque was presented into a newly opened

account, the official concerned was not alert and he was misled by

the introduction given by the sub-staff of the Extension counter and

has not enquired into any antecedents of the account holder, thereby

abdicated his responsibility. He further stated that the procedure for

opening new accounts was flagrantly violated and he gave opinion

that the action of A-3 giving introduction to A-1 for opening the

bank account, receiving an amount of Rs.5,000/- under Ex.P18 and

Rs.4.20 lakhs under Ex.P12, gives scope for suspecting a foul play on

his part. The prosecution failed to produce the final report of the

departmental enquiry in support of the oral and documentary

evidence. However, the trial Court has misread the entire evidence

available on record and came to the conclusion that A-3 cannot

plead ignorance or being lack of knowledge as per the explanation

given by him in his examination under Section 313 Cr.P.C., as P.W.1

has stated that he came to know that P.W.7 issued requisition slip for

issuance of cheque book.

Further, P.W.13, the then Sub Inspector of Police,

Rajendranagar Police Station, has categorically stated in his cross

examination that there was no signature of A-2 on the requisition

register for getting the cheque book. He admitted that he did not

send Ex.P28-Standard writings of A-2 for comparison. He also

admitted that A-2 was working as L.D.C-cum-Typist in NIRD

Accounts Department and there was no office order to show that

A-2 was the custodian of the requisition slips. He further admitted

that no reasons have been assigned in the complaint for the delay in

lodging the complaint on 24.04.2003.

A perusal of the entire evidence on record, it is evident that

A-1 and A-4, who are the main conspirators behind the scheme, are

not yet arrested by the prosecution for the reasons best known to

them. Charges under Sections 120B and 406 of I.P.C. were framed

against the revision petitioners/A-2 and A-3 as well as A-5 to A-8.

The trial Court acquitted A-5 to A-8 for both the offences and the

revision petitioners/A-2 and A-3 for the offence under Section 406

of I.P.C. as there was no evidence against them and that the said

finding was confirmed by the appellate Court. However, both the

Courts below found the revision petitioners/A-2 and A-3 guilty of

the offence punishable under Section 120B I.P.C. The case of the

prosecution is that A-1 has opened an S.B. account and R.D. account

in S.B.H., NIRD Extension Counter, Rajendranagar, without his

photograph, with the active connivance of the revision

petitioners/A-2 and A-3, who were working as Junior Assistant and

Attender respectively in the said bank. The allegation against A-3 is

that he has introduced A-1 for opening the bank account. The

prosecution has failed to establish that introducing a customer to

open the bank account attracts penal provision as per the service

conditions of the bank. Hence, the Courts below cannot come to a

conclusion that since A-3 has introduced A-1 for opening the bank

account and his signatures were appeared on Exs.P12 and P18-

Cheques along with A-1, he hatched a conspiracy with A-1 for

withdrawal of an amount of Rs.13.92 lakhs, as alleged by the

prosecution.

In other words, there is no concrete evidence on record that

with whom A-2 and A-3 hatched a conspiracy either for obtaining

the cheque book or for withdrawal of any amount from the account

of A-1 through the disputed four cheques. There is absolutely no

evidence on record to show that in whose custody all the four

cheques were found. The Courts below have failed to appreciate the

evidence on record that there was an inordinate delay of four to five

months in lodging the F.I.R. It is the case of the prosecution

witnesses that they have not verified any reconciliation statements

immediately after the monitory transactions, which was mandatory

as per the Rules. However, basing on the explanation given by A-3

and the unstable evidence adduced by the prosecution witnesses, the

Courts below came to the conclusion that the incriminating material

available on record establishes the offence under Section 120B of

I.P.C. against A-2 and A-3 and accordingly convicted them for the

offence punishable under Section 120B of I.P.C. Further, a perusal

of the entire evidence on record, it is evident that there were serious

lapses in opening of the bank account of A-1, passing of cheques of

high value and safe custody of cheque book etc., Therefore, there is

absolutely no evidence against the revision petitioners/A-2 and A-3

and the findings recorded by the trial Court, which were upheld by

the appellate Court, are erroneous, perverse and illegal and as such

they are liable to be set aside.

Accordingly, both the Criminal Revision Cases are allowed.

The conviction and sentence of imprisonment imposed by the trial

Court as affirmed by the appellate Court for the offence punishable

under Section 120B of I.P.C. are hereby set aside and the revision

petitioners/A-2 and A-3 are acquitted of the said offence. Fine

amount, if any, paid by the revision petitioners/A-2 and A-3 shall be

refunded to them. The bail bonds of the revision petitioners/A-2

and A-3 shall stand cancelled.

Miscellaneous petitions, if any, pending shall stand closed.

____________________ JUSTICE G.SRI DEVI 12-04-2022 Gsn/gkv