THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1257 OF 2004 ORDER: This appeal at the instance of the State is directed against the acquittal of the accused in C.C.No.609 of 1995 by the IV Additional Judicial First Class Magistrate, Warangal on 29.08.2003. The accused therein were prosecuted for the offences under Sections 420, 419 and 468 IPC alleging that the accused Nos.2 and 3 are brothers and accused No.1 is the friend of accused No.3 Accused No.3 has joined in Bank Services in the year 1985 and posted at Central Bank of India, Narsampt Branch and while he was working there, the got friendship with accused No.1. In the year 1989, accused No.3 transferred to Mandapeta Branch. Accused No.3 with an ulterior motive to earn money in an easy way by way of cheating the bank and its officials, seeking the help of accused No.1. Accused No.3, who was in charge of the demand drafts in Mandapeta branch has issued demand draft No.003299 for an amount of Rs.98,500/- dated 29.03.1993 in the name of one B.Thirupathi Reddy by forging the signatures of accountant and sub- accountant of Mandapet branch. Thereafter, accused Nos.2 and 3 went to Narsampet and met accused No.1, after handing over the said demand draft to accused No.1, accused No.3 left to Mandapet. As per their preplan accused Nos.1 and 2 went to Aditya Financers and accused No.1 introduced accused No.2 as Thirupathi Reddy and handed over the said demand draft for an amount of Rs.98,500/- to P.W.1 for encashment. P.Ws.1 and 5 paid the amount to the accused after deducting their commission. Thereafter, they deposited the said demand draft in Syndicate Bank, Hanumkonda branch for clearance and they received the amount. Again on 05.03.1994 accused No.3 has prepared another demand draft No.006030 dated 05.03.1994 for a sum of Rs.1,87,000/- in the name of Padala Narayana Reddy by forging the signatures of the accountant and Branch Manager of Mandapet Branch. After that accused No.3 has handed over the said demand draft to accused No.2 with a direction to take the help of accused No.1 in realizing the said demand draft. Accused Nos.1 and 2 went to the District Co-operative Central Bank, Hanamkonda and where accused No.1 got opened an account in the name of P.Narayana Reddy by introducing himself as one Laxmi Narayana and accused No.2 as Narayan Reddy and after clearance accused No.2 withdrawn the entire amount. Again on 28.04.1994 accused No.3 prepared a forged demand draft No.06697 for an amount of Rs.1,76,000/- in the name of the same Padala Narayana Reddy and sent the same through accused No.2 to accused No.1. Then accused No.1 deposited the forged demand draft in the finance company of P.Ws.1 and 5 and in turn P.Ws.1 and 5 paid the said amount to the accused after deducting their commission. Later they realized the amount from Syndicate Bank, Hanamkonda. On 14.05.1994 again accused No.3 prepared a forged demand draft No.006862 for an amount of Rs.1,68,000/- on the name of Padala Narayana Reddy for forging the signatures of Branch Manager and accountant of Mandapet branch and sent the same to accused No.1 through accused No.2. Accused No.1 along with accused No.2 went to P.Ws.1 and 5 and submitted the said demand draft. In a good faith and trust, P.Ws.1 and 5 paid the amount of demand draft of the accused after deducting their commission. Later, P.Ws.1 and 5 deposited the demand draft for collection in Central Bank of India, Hanamkonda Branch. To their surprise on 18.05.1994, they received a letter from the Syndicate Bank stating that the said demand draft was forged and payment was withheld. After making enquiries about accused Nos.1 to 3, P.W.1 has lodged a complaint before the police and the same was registered as a case in Crime No.139 of 1994 under Sections 420, 419 and 468 IPC and investigation was taken up. When the investigation is in progress, P.W.2, Manager of Central Bank, Hanamkonda lodged another complaint stating that on verification, they came to know that the demand draft bearing Nos.006962, 006030 and 006097 are also forged documents. On 01.06.1994, P.W.2 lodged another complaint stating that the demand draft No.003297 dated 29.03.1993 for Rs.98,500/- also forged one. The Investigating Officer has recorded the statement of P.Ws.2, 3, P.W.6 and P.W.14 and arrested accused No.3 at Hostel Town and on the same day, a search warrant was issued by the III Additional Judicial First Class Magistrate, Rajahmundry. On 10.06.1994 at 10.00 P.M. he arrested accused No.3 and was produced before III Additional Judicial First Class Magistrate, Rajahmundry and obtained orders for producing him before the concerned Court. On 12.05.1994 at 8.30 A.M. accused No.3 was brought to Hanamkonda Police Station and interrogated before the mediators P.Ws.7 and 8 and recorded his confessional statement. Accused No.3 admitted about the commission of offence along with accused Nos.1 and 2. He was sent to judicial custody. On 27.06.1994 at 10.00 P.M. accused Nos.1 and 2 were arrested near Venkataramana Theatre, Warangal and interrogated them in the presence of mediators, P.W.8 and another and they confessed individually and voluntarily that they committed the offence under the guidance of accused No.1. A Hero Honda motor cycle was seized from the possession of accused No.2 in the presence of P.W.8 and another and also obtained his handwriting. As per the confessional statements of accused Nos.l and 2, accused No.2 led the police and mediators to his house situated at Almoor village of East Godavari District and from his possession Rs.75,000/-, a Vidiocon T.V., Vidiocon Mixy with Jars, 50 grams of gold ornaments were recovered under a cover of Panchanama in the presence of mediators P.W.8 and another. Accused No.1 took the police to his house and at his instance recovered Rs.75,000/- and tape recorder were seized under the cover of Panchanama in the presence of P.Ws.10 and 11. Later, they were remanded to judicial custody. Thereafter, accused No.3 was taken to police custody and obtained his sample signatures in the presence of P.W.9 and another Dayakar. The sample signatures and hand writings of accused Nos.2 and 3 were sent to the Hand Writing expert for comparison with the writings and signatures on the forged demand drafts. After careful examination, the expert opined that the Hand Writing of accused Nos.2 and 3 were tallied with the signatures on the forged demand drafts. After completion of the investigation, charge sheet was filed against them. The learned Magistrate has framed the charges under Sections 419 and 420 IPC against accused No.1 and under Sections 419, 428 and 469 IPC against accused Nos.2 and 3. They pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 14 and got marked Exs.P.1 to P.40. On behalf of the accused, D.W.1 was examined and got marked Exs.D.1 to D.16 and M.Os.1 to 3. The learned Magistrate by taking into consideration of the said oral and documentary evidence found all the accused not guilty for the offences under Sections 419 and 420 IPC and accused No.3 was also found not guilty for the offence under Section 469 IPC and thereby acquitted the accused. Aggrieved by the said acquittal, the State has filed the present appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the offences under Sections 419 and 429 against accused Nos.1 to 3 and under Section 469 IPC against accused No.3 beyond reasonable doubt? P O I N T: The Additional Public Prosecutor appearing on behalf of the State by reading the entire judgment of the lower Court has pleaded that from the evidence of P.Ws.2, 3, 4 , 6 and 14 and P.Ws.1 and 5 the prosecution could able to establish the forgery of the demand drafts by accused No.3 and they were encashed by accused Nos.1 and 2 by cheating the bank by impersonating the persons mentioned in the demand drafts. The counsel appearing on behalf of the respondents/accused on the other hand has pleaded that the prosecution could not establish that accused No.3 has forged the said demand drafts by committing theft of the same from Mandapet branch and also failed to establish that accused Nos.1 and 2 have collected the amounts mentioned under the demand drafts by impersonating the persons mentioned therein. According to the prosecution, accused No.3 while working as clerk in Mandapet branch of Central Bank of India forged the demand drafts No.003299 for an amount of Rs.98,500/- dated 29.03.1993, No.006030 dated 05.03.1994 for a sum of Rs.1,87,000/-, No.06697 dated 28.04.1994 for an amount of Rs.1,76,000/- and another demand draft No.006862 dated 14.05.1994 for an amount of Rs.1,68,000/- and hand over the same to accused Nos.1 and 2; they in turn encashed the same and the same was detected when the demand draft No.006862 was presented for collection. Thereafter, accountant of Central Bank of India, Mandapet branch found that the blank demand drafts leaves were missing from their bank during the period accused No.3 worked in the branch and all the above mentioned demand drafts were forged by accused No.3 and they were encashed through Aditya Finance and District Co-operative Central Bank, Hanamkonda. In order to establish the presentation of the demand drafts and collection of the amount under the demand drafts by accused Nos.1 and 2, the prosecution has examined P.Ws.1 and 5 and 14. P.Ws.1 and 5 are the Managing Partners of Aditya Financiers Company, Hanamkonda as P.W.1 did not turn up for cross-examination, his evidence was eschewed. P.W.5 even though has stated about accused Nos.1 and 2 brought demand drafts to their firm and presented the same for collection and they have paid the amounts after deducting their commission in the chief-examination, but in the cross-examination he has stated that during the period between 18.05.1994 and 26.05.1994 he was engaged in his marriage affairs and he saw accused No.2 on 03.05.1994 and 16.05.1994, but he did not produce the counterfoils or credit vouchers to prove that to whom the amount was paid by them. Thus, even though P.W.5 having documentary evidence to show about the payment of amount of demand drafts Exs.P.3 and P.4, has not produced the same. Moreover, Ex.P.3 was in the name of P.Tirupathi Reddy and Ex.P.4 is in the name of Padala Narayana Reddy. According to him, both accused Nos.1 and 2 came to their firm and introduced themselves as Thirupathi Reddy and Padala Narayana Reddy and only on dishonour of demand draft Ex.P.1 sent for collection, they came to know about the forging of demand drafts. Therefore, from the evidence of P.W.5, it cannot be said that accused Nos.1 and 2 are the persons, who have impersonated the persons mentioned in Exs.P.1, P.3 and P.4 and received the amounts mentioned under the said demand drafts in the absence of producing any documentary evidence available with him. The other witness P.W.14 is the accountant of District Co- operative Central Bank, Hanamkonda. According to the prosecution, accused Nos.1 and 2 went to the said bank in the name of Laxminarayana and Padala Narayana Reddy and got opened an account No.6108 in the name of Padala Narayana Reddy and deposited a demand draft for Rs.1,87,000/- and after collection by the said ban, they have withdrawn the amount. P.W.14 has only stated about opening of account in the name of Padala Naryana Reddy on being introduced by D.Laxminarayana and depositing of demand draft for Rs.1,87,000/- on 17.03.1994 to the credit of said account and withdrawing the said amount on 22.03.1994. But he could not identify the said Laxminarayana and Padala Narayana Reddy as accused present in the Court. Therefore, the prosecution could not establish that accused Nos.1 and 2 are the persons who open the account in the District Co-operative Central bank, Hanamkonda and deposited the demand draft issued in the name of Padala Narayana Reddy and withdrawing the same. The other witnesses, who were examined by the prosecution, P.Ws.2 and 3 viz., Branch Manager and accountant of Central Bank of India, Hanamkonda. According to them, they received Ex.P.1 issued by Mandapet Branch and the said Ex.P.1 was sent to Syndicate Bank, Hanamkonda for clearance. P.W.1 expressed a doubt about the genuineness of Ex.P.1, P.W.3 contacted the Manager of Central Bank of India, Mandapet branch about the issuance of Ex.P.1 demand draft for Rs.1,68,000/- and came to know that the said draft was issued in the name of one Nagender Reddy and they stopped the payment of Rs.1,68,000/- and having entertained a doubt they verified the records about the previous demand drafts. Ex.P.5 for Rs.1,87,000/- dated 05.03.1994 and also Ex.P.4 for Rs.1,76,000/- dated 28.04.1994 and after coming to know that the said demand drafts are forged, they lodged a report with the police. Thereafter, they verified Ex.P.3 and lodged another complaint. The other witnesses, who were examined to establish the involvement of accused No.3 are P.Ws.4 and 6, who worked as accountant and Manager in Central Bank of India, Mandapet. P.W.4 worked in the Central Bank of India from 09.12.1993 to 20.05.1995 and P.W.6 was the Branch Manager at that time. Accused No.3 joined as a clerk in Mandapet and prior to 24.12.1993, accused No.3 worked in Savings counter and from 24.12.1993 onwards he worked in demand draft issue section. On 17.05.1994, P.W.2 informed and asked him on telephone to verify the genuineness of certain demand drafts No.006862 for Rs.1,68,000/- issued in favour of Padala Narayana Reddy and on verification he found that the amount of the above said demand draft was only Rs.100/-. He was also asked to verify demand draft No.006030 for Rs.1,87,000/- dated 05.03.1994 and demand draft No.006697 for Rs.1,76,000/- dated 24.04.1984 in favour of P.Narayana Reddy and also demand draft No.003297 for Rs.98,500/- dated 29.03.195 in favour of B.Thirupathi Reddy and found that the said demand drafts were not issued by their branch. He came to know that accused No.3 snatched away the blank leaves from their branch and issued the said four demand drafts forging the signatures of the concerned officers including himself and P.W.6 and his predecessor accountant V.S.Murthy and Smt. Venkateshwari. P.W.6 Manager has also supported the version of P.W.4 with regard to accused No.3 used to attend the branch dealing with the current deposits, over drafts, cash credits, bills purchase book and realizing demand drafts, T.Ts, M.T. issuance, paid bankers cheque and paid transfers scroll total savings supplementary writings since 24.12.1993 and at the instance of P.W.2 he got verified about the demand drafts. But he admitted in the cross-examination that the buyer of the demand draft will fill up the credit voucher and present the same to the cash counter along with the cash, which will be verified by the demand draft issuing clerk and on verification of particulars entered in the roll, forwarded the same to the accountant or sub-accountant for verification and later the accountant or sub- accountant put their initials and sent them to the cash and credit voucher to the cashier and the cashier receive the cash and put the stamp as cash received. Then sent the demand draft voucher to the demand draft issuing clerk, who will prepare the demand draft. Again the demand draft will be sent for signature of accountant or sub- accountant. If the amount exceeds Rs.5,000/- the 2nd signature of any of the officer or Manager will be made on the demand draft and it will be sent to the concerned party under proper acknowledgement on the reverse of the credit vouchers. Everyday the demand drafts issued to the concerned clerk will be verified in the morning and he has to account for it in the evening after closure of the business hours. The credit vouchers will be preserved in the bank and it will be verified daily in the evening for re-conciliation. The demand draft vouchers will be preserved for 10 years, thereafter they will be destroyed. He also admitted that there was an external audit in April, 1994 and internal audit during the February, 1994. During his tenure internal and external audit took place four times of each audit both internal and external up to 1997. But the theft of demand drafts has not brought out either in the internal audit in February, 1994 or external audit in April, 1994. Therefore, from the evidence of P.Ws.4 and 6, it is evident that accused No.3 worked during the relevant period as clerk in the Mandapet branch as in charge of issuing demand drafts. P.Ws.4 and 6 have specifically stated that the demand draft forms are with the branch manager and they will be verified everyday in the morning and the amount collected under demand drafts will be reconciled everyday in the evening. Even though the internal audit and external audit was conducted during the said period, there is no detection of issuance of forged demand drafts from their branch. The Prosecution in order to establish that accused No.3 has forged the demand drafts examined P.W.9, in whose presence the sample handwritings of accused No.3 were obtained and the said handwritings sent to expert for comparison with the handwriting on the forged demand drafts. P.W.9 has turned hostile to the prosecution. He simply stated that the police obtained his signatures on the sample hand writing shown to him. He does not know why his signatures were obtained on the papers and he does not know any of the accused at that time. Therefore, the prosecution could not establish the obtaining of sample hand writing from the accused. Moreover, the lower Court by relying upon the decisions rendered in “The Deputy Chief Controller of Imports and Exports, Hyderabad v. Boddula Mallesham, (1997 (1) ALT (Crl.) 719)” and in “Sudhvinder Singh and others v. State of Punjab (1994 Supreme Court Cases (Crl.) 1376)” held that the specimen handwritings of the accused are to be obtained in the Court but not by the Investigating Agency; consequently, disbelieved the story of the prosecution about the comparison of the specimen handwriting with the disputed handwriting on the demand drafts. The learned Additional Public Prosecutor appearing for the State could not justify the action of the prosecution in obtaining the specimen handwriting by them during the course of investigation. Apart from the above, the prosecution also examined P.Ws.7, 8, 10 and 12. According to the prosecution after arresting of accused Nos.1 and 3, at their instance some cash and articles were seized from their possession in the presence of the mediators. But all the mediators have turned hostile to the prosecution and not supported the case of the prosecution. Moreover, the Investigating Officer, who investigated the case, was not examined before the lower Court and the same is fatal to the case of the prosecution. In view of the above observations, I hold that the lower Court has rightly come to the conclusion that the prosecution has failed to establish the charges framed against the accused and thereby acquitted the accused. The said finding of the lower Court does not warrant any interference by this Court in the appeal. In the result, the criminal appeal is dismissed. _______________________ P.DURGA PRASAD, J 30th September, 2011 Ksp