THE HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.672 of 2002 JUDGMENT: This Criminal Appeal is filed by the appellant - accused under Section 374 (2) of the Code of Criminal Procedure (for short “Cr.P.C.”) against the Judgment dated 18-06-2002 in C.C. No.14 of 2000 passed by the learned Special Judge for C.B.I. Cases, Hyderabad, whereunder and whereby the appellant was convicted of the offences punishable under Sections 409, 420, 468, 471 and 477-A of the Indian Penal Code (for short “IPC”) and under Section 13(2) read with 13 (1) (c) & (d) of the Prevention of Corruption Act, 1988 (for short “the P.C. Act”) and sentenced to undergo rigorous imprisonment for six (6) years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for one (1) year for each of the offences punishable under Sections 409, 420, 468 and 477-A IPC; to undergo rigorous imprisonment for three (3) years and to pay a fine of Rs.3,000/-, in default to undergo simple imprisonment for six (6) months for the offence punishable under Section 471 IPC and to undergo rigorous imprisonment for six (6) years and to pay a fine of Rs.3,000/- in default to suffer simple imprisonment for six months for each of the offence punishable under Section 13(1) (c) & (d) read with 13 (2) of the P.C. Act. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The accused was working as a Branch Manager in Andhra Bank, Narasingapur Branch, Karimnagar District at the relevant point of time of alleged mis-appropriation, that one Baddam Raja Reddy and his family members were having four fixed deposit receipts, dated 06-06-1991 for Rs.20,000/- each and they availed deposit loan of Rs.20,000/- each against the fixed deposit receipts and some time thereafter they have repaid the loan amount on each account and the accused received the amount and issued the credit advise and the said amounts have mis- appropriated by him, as the credit entry is not found on Ex.P-5, deposit ledger book, similarly the accused raised nine crop loans on 25-03-1997 under Exs.P-18 to P-26, debit vouchers, totaling to Rs.39,000/- and he also raised deposit loan in the name of one T. Ratnamma for Rs.75,000/- and the same amount has been adjusted to the deposit account of B. Raja Reddy and his family members and similarly he credited Rs.20,000/- in the C.D. Account of Nagaraja Marketing Agency and the balance of Rs.2,720/- was taken by him, and one P. Shankaraiah, PW-10, remitted an amount of Rs.28,300/- into his account under Ex.P-35, deposit voucher, and similarly one V.Shyamala was having an account in the Bank and on 22-02-1997 an amount of Rs.48,000/- was unauthorizedly debited to her account under Ex.P-48, withdrawal form, and out of that an amount of Rs.23,000/- was credited to the account of one N. Bhoomaiah and Rs.25,000/- was credited to the account of one B. Mattaiah, and on 25-02- 1997 an amount of Rs.10,000/- and on 27-02-1997 an amount of Rs.15,000/- and on 15-03-1997 an amount of Rs.16,000/- were unauthorizedly debited to her account under Exs.P-54, P-56 and P-57, withdrawal slips, respectively, and the amounts were credited to the C.D. Account of Shobha Engineering Company and when she approached the accused for payment of amounts, the accused passed the withdrawal slip without striking the balance in the account and he gave a letter dated 15-05-1997 under Ex.P-61 accepting the mis-appropriation of the amount and that V. Shyamala gave a letter to the effect that she has not withdrawn the amounts and her signature was forged. Therefore, the accused debited various amounts from the accounts of the customers and mis-appropriated the same by not crediting the amounts. The Inspector of Police, Central Bureau of Investigation (for short CBI), Hyderabad registered a case in RC No.6 (A) of 1998 against the accused for the offences punishable under Sections 406, 409 and 420 IPC and 13 (2) read with 13 (1) (d) of the P.C. Act and the case was transferred to PW-18, Deputy Superintendent of Police, CBI/SPE/ Hyderabad, the Investigating Officer, who took up investigation, examined witnesses, recorded the statements and seized the documents and obtained the signatures of the accused and sent them to PW.17, Hand Writing Expert, for comparison. PW.17 compared the disputed signatures with that of the admitted signatures of the accused and also the signatures of the witnesses and gave his opinion. Though, the accused repaid certain amounts, mis-appropriated by him, to the customers, he is liable for punishment. 3. The following charges were leveled against the accused: “CHARGE No.1: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, committed criminal breach of trust by misappropriating the funds which were entrusted to you as Manager of Andhra Bank to a tune of Rs.5,31,220/- during the period from 20-02-1997 to 06-05-1997 in the deposit accounts of Sri N. Rajamouli, Smt. T. Ratnamma, Sri Baddam Raja Reddy, Sri P.Shankaraiah, Sri B.Chandraiah, Sri Bhattala Bhumaiah, Sri Avala Malla Reddy, Sri Nalumula Bhumaiah, Sri Challa Raji Reddy and Sri Gurram Linga Reddy and subsequently repaid Rs.4,05,000/- into accounts over a period of time and thus committed an offence punishable under Section 409 IPC and within my cognizance. CHARGE No.2: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, cheated Andhra Bank, Narsingapur branch, karimnagar Dist., to a tune of Rs.5,31,220/- by misrepresenting as if the loans were availed by the account holders and thereby committed an offence punishable under Section 420 IPC and within my cognizance. CHARGE No.3: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, prepared false debit vouchers in the deposit account holders and forged their signatures to facilitate withdrawal of funds and thereby committed an offence punishable under Section 468 IPC and within my cognizance. CHARGE No.4: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, created forged vouchers in the deposit account holders and used them as genuine to facilitate withdrawal of funds from the said accounts and thereby committed an offence punishable under Section 471 IPC and within my cognizance. CHARGE No.5: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, falsified the records of Andhra Bank, Narsingapur branch, Karimnagar Dist., in respect of deposit account holders and thereby committed an offence punishable under Section 477-A IPC and within my cognizance. CHARGE No.6: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, committed grave misconduct by abusing your position as public servant and misappropriated the bank funds and obtained pecuniary advantage to yourself to the tune of Rs.5,31,220/- in the deposit account holders though you have made partly repayment at a later date and thereby committed an offence punishable under Section 13(2) read with 13(1)(c) and (d) of the P.C. Act, 1988 and within my cognizance.” When the charges were read over and explained to the accused, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, prosecution examined PWs.1 to 18 and got marked Exs.P-1 to P-91. No oral or documentary evidence was adduced on behalf of the accused. 5. The trial Court after considering the evidence on record, came to the conclusion that the accused committed all the offences and accordingly convicted and sentenced him as stated supra. Challenging the same, the present Criminal Appeal is filed. 6. The learned Counsel appearing for the appellant contended that the specimen signatures of the appellant were not obtained before the Court or under the authority of the Court and therefore the evidence of PW.17 has to be rejected and the opinion of the expert is unsustainable under law; that it is admitted even by the Investigating Officer that the amount allegedly mis-appropriated by the appellant has been remitted back to the concerned authorities; that though the Investigating Officer examined the witnesses and recorded their statements, they have not been furnished thereby causing prejudice to the appellant; that there was no aggrieved party in this case, and that no person has given any complaint against the appellant; that the alleged extra judicial confessions Exs.P-39 and P-61 have been made by the appellant by way of compulsion or they were obtained by the person in authority; that the bank transactions involve 3 or 4 persons with regard to receipt, encashment or adjusting the money into the account but the police filed the case against the appellant alone which shows biasing nature, that the alleged mis-appropriated amounts have been paid by the appellant even before the commencement of investigation i.e. prior to the registration of the case and therefore no offence is made out against the appellant. Therefore, he prays to set aside the convictions and sentences recorded by the trial Court. 7. On the other hand, learned Standing Counsel for CBI contended that even though the loanees have repaid the loan amounts, those amounts have not been entered in the Bank records, and their evidence remained unchallenged; that the accused himself voluntarily gave extra judicial confessions admitting his guilt and as a matter of fact, after the commencement of investigation, appellant repaid the substantial amounts mis-appropriated by him; that some of the signatures of the loanees have been forged by the appellant, which may be seen from the evidence of PW.17; that the trial Court after elaborate consideration of evidence on record, rightly found the appellant guilty and there are no grounds to interfere with the convictions and sentences recorded by the trial Court. 8. Now the point for determination in this Criminal Appeal is whether the prosecution proved its case beyond all reasonable doubt for the charges levelled against the appellant and whether the judgment of the trial Court is correct and proper ? 9. For the offence punishable under Section 409 IPC, the prosecution has to prove that the appellant was entrusted with the property, or with any dominion over the property in his capacity as a Branch Manager and if he dishonestly mis-appropriated or converted to his own use that property in violation of any law in touching the discharge of his trust, it is an offence punishable under Section 409 IPC. 10. The offence under Section 420 IPC as defined under Section 415 IPC has two essential ingredients, viz., deceit i.e. dishonest or fraudulent misrepresentation to a person and inducing of that person thereby to deliver property. To constitute an offence under Section 420 IPC, it is not necessary to prove both wrongful loss and wrongful gain. It is enough to establish the existence of either of them. 11. In so far as the offence punishable under Section 468 IPC is concerned, forgery for the purpose of cheating is an offence. Section 463 IPC defines 'forgery'; whoever makes any false document or part of the document with an intention to cause damage or injury to the public or to any person is a forgery. 12. Under Section 471 IPC, whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged is an offence punishable under this Section. 13. Under Section 13 (2) of the P.C. Act, if a public servant commits mis-conduct within the meaning of 13(1) (c) and (d) whereunder if a public servant dishonestly mis-appropriated or convert to own use of the property entrusted to him as a public servant or by corrupt or illegal means obtains valuable thing or pecuniary advantage is an offence punishable. 14. The contention of the learned counsel for the appellant is that admittedly the Investigating Officer did not obtain the specimen signatures of the accused and the other loanees before any Court and that they were obtained in the presence of Bank Officials only. In support of his contention, he relied upon a decision of this Court reported in DEPUTY CHIEF CONTROLLER OF IMPORTS AND EXPORTS, HYDERABAD VS. BODDULA MALLESHARA[1] wherein it was held in para-7 as follows: “(7) …..................... Section 73 of the Evidence Act in our opinion cannot be made use of for collecting specimen writings during the investigation and recourse to it can be had only when the enquiry of the trial Court before which proceedings are pending requires the writing for the purpose of enabling it to compare the same.” 15. Basing on the above decision, the learned counsel contended that obtaining of the signatures of the appellant and the other witnesses during the course of investigation, without there being any direction by the Court, is unsustainable and consequently the opinion of the expert is valueless. 16. This Court in an unreported decision dated 19-06-2009 in Criminal Revision Case No.1861 of 2003 between RATHI @ RAMESH RATHI v. STATE OF A.P. held that during the course of investigation, the Investigating Officer can collect the specimen signatures and hand-writing of the accused person for the purpose of comparison with the admitted signatures of the accused, but, when a trial is pending before the Court or an enquiry is pending before a Court, then only the Investigating Officer has no authority or power to obtain specimen hand-writing or signatures of the accused person. The word 'investigation' includes collection of evidence, examination of the accused etc. It is pertinent to refer to a decision reported in STATE OF BOMBAY V. KATHI KALU OGHAD[2] wherein it was held thus: “It is well established that cl.(3) of Art.20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony.' The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or ay refuse to make any statement. But his finger impression or his handwriting, inspite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness.'” Therefore, obtaining the signatures of the accused and the other witnesses by the Investigating Officer during the course of investigation is completely in accordance with law and the procedure adopted by the Investigating Officer in obtaining the signatures of the appellant and the witnesses cannot be said to be irregular and illegal. 17. The other contention of the learned counsel for the appellant herein is that though the investigating Officer examined the witnesses during the course of investigation and recorded their statements, those statements have not been made available to the appellant, so as to cross examine the witnesses. 18. There cannot be any dispute that the statements recorded by the police during the course of investigation under Section 161 (3) Cr.P.C. are not substantive evidence. Except for contradicting the evidence of a witness in the manner provided under Section 145 of the Indian Evidence Act 1872, the statement recorded by the police cannot be used for any other purpose. Even for cross-examination of the witness also the statements cannot be used. If there is any contradiction elicited in the evidence of such witness or an omission amounting to contradiction, those contradictions have to be marked by duly bringing to the notice of the Investigating Officer. It is observed in the judgment that after appearance of accused, he was furnished with copies of the charge sheet, documents etc., as required under Section 207 Cr. P.C. That observation is not shown to be false. Hence, the contention of the learned counsel for appellant is wholly untenable. 19. The charge levelled against the accused is that he mis-appropriated the funds of the bank to a tune of Rs.5,31,220/-, during the period from 20th February 1994 to 6th May 1997 and subsequently he repaid an amount of Rs.4,05,000/- into the accounts of various persons. 20. PW.1, D. Dayanand, is the Vigilance Officer and he inspected the Nargsingapur branch of Andhra Bank along with P.S.C. Bose Babu. He deposed that PW-9 and his family members have four (4) deposits for Rs.20,000/- each all dated 06-06-1991 under Exs.P-1 to P-4 in the said Bank; that PW-9 and his family members have availed deposit loan against Exs.P-1 to P-4 at Rs.20,000/- each; that they have repaid the loan amounts of Rs.20,675/- each on each loan account; that the accused received the amount and issued credit advise under Exs.P-14 to P-17 to PW-6 but he did not credit the amounts and mis-appropriated the same. He further deposed that the accused raised crop loans under Exs.P-18 to P-26 totally amounting to Rs.39,000/-; that the accused also raised a deposit loan in the name of one T. Ratnamma for Rs.75,000/- under Ex.P-27 debit voucher; that the amount of Rs.75,000/- along with above referred amount of Rs.39,000/- were adjusted to the deposit loans of PW-6 and his family members and out of that amount, an amount of Rs.20,000/- was credited in C.D. account in favour of Nagaraja Marketing Agency and balance of Rs.2,720/- was taken by him; that PW-6 wrote a letter under Ex.P-33 to the Vigilance Officer to the effect that they have paid the loan amount; that PW-11 also had S.B. account in the said bank and on 02-05-1997 he handed over Rs.10,000/- to the accused and the same was written in the pass book, but on 05-05-1997 when PW-11 enquired about the balance, there was no balance in his account and he wrote a letter to the Vigilance Officer about the same. 21. He further deposed that similarly one V.Shyamala was having an ASB account in the Bank and an amount of Rs.48,000/- was unauthorizedly debited to her account under Ex.P-48, withdrawal form, out of that an amount of Rs.23,000/- was credited to the account of one N. Bhoomaiah and Rs.25,000/- was credited to the account of one B. Mattaiah, that on 15-03-1997 an amount of Rs.16,000/- was unauthorizedly debited to her account and the said amount was credited to the C.D. Account of Shobha Engineering Company; that V. Shyamala gave a letter to the Vigilance Officer under Ex.P-60; that similarly from the accounts of PW-5, PW-11 and some other customers, the accused mis-appropriated the amounts by not crediting the amounts in the accounts when they deposited the amounts and also they repaid the loans taken by them and that the accused also gave letters dated 06-05-1997 and dated 15-05-1997 under Ex.P-39 and Ex.P-61 respectively to the Vigilance Officer accepting the mis- appropriation of the amounts from the accounts of the customers. PW.1 further stated that admittedly he has no personal knowledge about any of the transactions. 22. PW.2 is the Inspector of branches at Regional Inspectorate, Hyderabad. He deposed that he had conducted voucher audit of Narsingapur branch of Andhra Bank and found mis-appropriation of Rs.55.4 lakhs; that he did not state the said fact before the CBI when he was examined. The said statement is an improvement. Except alleging that mis-appropriation of funds in the accounts and deposit loan accounts, nothing has been stated by him. 23. PW.3 is the Cashier in Andhra Bank. He identified the signatures of the accused on Exs.P-7 to P-32, 34, 37, 38, 39, 41, 43, 44, 48, 49, 52 to 63, 70, 71, 74 and 77 and also the handwriting of the accused under Exs.P- 80 and P-81. 24. PW.4 is the Rural Development Officer in Andhra Bank. He deposed that on 05-03-1997 he received an amount of Rs.5,000/- from one Bhoomaiah of Nakkapalli and that the same was handed over to the accused to credit the same to the account of Bhoomaiah, but the accused did not deposit the same into the bank and that PW.4 made an entry in the pass book of Bhoomaiah under Ex.P-4 and that the said entry was not reflected in the account. Except suggesting that he did not hand-over the amount to the accused, nothing has been elicited to dis- credit the testimony of PW.4. 25. PW.5 is one Bhoomaiah, who opened S.B. Account No.1096 in Andhra Bank, Narsingapur branch. He deposed that he obtained Tractor loan of Rs.2,00,000/- and that he paid margin money of Rs.1,80,000/-, but his account revealed the deposit of Rs.80,000/- only and that when he enquired with the accused, the accused stated that since he was the Manager, no need to worry for not reflecting the remaining amount of Rs.1,00,000/-. He categorically stated that he deposited Rs.1,80,000/- in three installments and he purchased the tractor by hypothecating into bank and that the accused did not account for Rs.1,00,000/- out of Rs.1,80,000/-. He gave Ex.P-68, representation, to the Vigilance Officer, which would clearly go to show that without his knowledge, the Branch Manager utilized the amounts for himself. When PW.5 has categorically stated that the accused did not account for Rs.1,00,000/- out of Rs.1,80,000/- deposited by him in three installments, that statement remained unchallenged. 26. Similarly, PW.6, S. Raji Reddy, deposed that he obtained a crop loan of Rs.4,000/- from Andhra Bank and he repaid the same and that after transfer of the accused, his successor demanded him about the payment, which was shown pending in the bank account and then he showed Ex.P-82, deposit receipt, showing the repayment of crop loan. 27. PW.7, A. Malla Reddy, also obtained a loan of Rs.7,000/- from the Andhra Bank and repaid the same. It is not his case that the amounts so deposited were mis-appropriated by the accused. 28. Similarly, PW.8, G. Linga Reddy, who obtained the crop loan of Rs.5,000/- has repaid the same to the accused, and that the successor of the accused asked him to pay the entire loan amount as it was unpaid, then he lodged Ex.P-78 complaint. 29. PW.9, Baddam Raji Reddy, deposed that he raised 4 K.T.D. of Rs.30,000/- each on his name and in the names of his children and obtained loan of Rs.50,000/- against the said deposits and he repaid the same to the accused with interest and the accused gave Exs.P-14 to P-17 credit advises showing repayment of loan but Exs.P-14 to P-17 does not bear any date, and he had a doubt that the loan is pending on the said deposits, so he gave a complaint Ex.P-33 against the accused. 30. Therefore, the evidence of PWs. 6, 7, 8 and 9 would go to show that though they have repaid the loan amount, the accused has not accounted in the bank records the said amounts repaid by them. Practically, the evidence of PWs.6, 7, 8 and 9 remained unchallenged. Their evidence with regard to obtaining the loan and repayment of the same to the appellant has not been denied or disputed even by the accused. Once a fact has been stated by a witness and the same is not denied or disputed in the cross-examination, it can be safely said that such fact is admitted. 31. PW.10, P. Shankaraiah, stated