Crl. Appeal No.465-SB of 1988 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.465-SB of 1988 Date of Decision : December 24, 2008 Balram Arora son of Pindi Dass, Clerk-cum-typist , State Bank of Patiala, Kalka Branch. .... Appellant. Versus The State of Haryana .... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. H.N. Mehtani, Advocate for the appellant. Mr. Ajay Kaushik, Standing Counsel for the C.B.I. Mr. S.S. Mor, Senior DAG, Haryana for the respondent-State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 31.10.1988, rendered by the Special Judge ( Additional Sessions Judge ), Ambala, vide which he convicted and sentenced Kewal Singh ( since deceased ) and Balram Arora, accused ( now appellant ), as under: Crl. Appeal No.465-SB of 1988 --2-- Name of the The offence, for Sentence awarded accused which conviction was recorded. ------------------------ ----------------------- ------------------------- Kewal Singh U/S. 120- B IPC RI for three years, Dhilon Fine Rs.1000/-, In default RI for six months U/s 419 IPC RI for three years. U/s 420 IPC RI for three years, Fine Rs.1000/-, In default RI for six months U/s 467 IPC RI for three years, Fine Rs.3000/-, In default RI for six months. Balram Arora U/s 120-B IPC RI for three years, Fine Rs.1000/-, In default RI for six months. U/s 477-A IPC RI for three years. 5(2) of the Prevention RI for three years, of Corruption Act. Fine Rs.1000/-, In default, RI for six months. The substantive sentences of both the accused were ordered to run concurrently. 2. The Special Police Establishment of Central Bureau of Investigation registered RC No. 8 of 1980, Under Sections 120-B, 419, 420, 467, 477-A of the Indian Penal Code and 5(2) of the Prevention of Corruption Act, 1947, on the allegations that, in the year 1977-78, Balwant Singh, ( since Crl. Appeal No.465-SB of 1988 --3-- deceased ), was the Branch Manager and Balram Arora, accused was posted as Clerk, in the State Bank of Patiala, Kalka Branch. Kewal Singh Dhillon, accused ( since deceased ), was operating his account No. 627 in the said branch. He along with another person representing as M.S. Dhillon had also current account No. 635, under the name and style of M/s Neel Giri Films, Kalka, in the said bank branch. Kewal Singh Dhillon, ( since deceased ), accused, was also maintaining a current account No. 203 at Andhra Bank, Sector 17, Chandigarh and current account No. 30 in the name of M/s Hem Kunth Movies, Chandigarh, in Punjab and Sind Bank, Sector 26 Branch, Chandigarh. It was alleged that, during the month of December, 1977 Kewal Singh Dhillon, ( since deceased ), entered into a criminal conspiracy with Balwant Singh ( since deceased ), the then Branch Manager, State Bank of Patiala, Kalka Branch and Balram Arora, Clerk, posted in the said Bank. In pursuance of the said criminal conspiracy , on 12.12.1977 Kewal Singh Dhillon ( since deceased ) had issued a cheque No. 539394 for Rs.17,000/- , drawn at Andhra Bank, Chandigarh, Sector 17 Branch, in favour of M.S. Dhillon. The said cheque for Rs.17,000/- was purchased by Balwant Singh, Branch Manager, through a D.D. Purchase slip, prepared by Balram Arora, Kewal Singh Dhillon impersonating himself for M.S. Dhillon, a bogus person, received the said amount, in cash by signing as M.S. Dhillon. It Crl. Appeal No.465-SB of 1988 --4-- was further alleged that, the said cheque was sent to State Bank of Patiala, Sector 22 D, Branch, Chandigarh, for realization of the amount from Andhra Bank, Sector 17, Chandigarh, on which it was drawn. The said bank, to which the said cheque was forwarded, dishonoured the same, with the remarks “refer to drawer” and returned the cheque, as unpaid, to the State Bank of Patiala, Sector 22-D Branch, Chandigarh, which in turn sent it back to its Kalka Branch, with the forwarding schedule that the cheque had been returned as unpaid by the drawee bank. 2-A. Further allegations were that, after the receipt of cheque No. 539394 as unpaid from Andhra Bank, Chandigarh, through State Bank of Patiala, Sector 22-D, Chandigarh, Balram Arora, accused, who was then posted as Clerk, in the State Bank of Patiala, Kalka Branch, had entered the same ( cheque ) in the DD Purchase register of Kalka Branch, showing the same, as having been paid. During the course of investigation, it was found that, on the same day, when the cheque was purchased by Balwant Singh and proceeds of the same were collected by Kewal Singh Dhillon, impersonating as M.S. Dhillon and signing as M.S. Dhillon, in his own hand, on the D.D. Purchase slip, he ( Kewal Singh ), accused, deposited the amount of Rs.17,000/- in his account No. 30 with Punjab and Sind Bank, Sector 26 Branch, Chandigarh. It was detected that Kewal Singh Dhillon had on 2.12.77 issued another cheque Crl. Appeal No.465-SB of 1988 --5-- for Rs.10,000/-, drawn on Punjab and Sind Bank, Sector 26, Chandigarh, in favour of Neel Giri Pictures, and the same was also purchased by Balwant Singh, the then Branch Manager, Kalka Branch. The said cheque was also received back, as unpaid, from the drawee bank, along with a schedule, but Balram Arora, accused, falsely showed it as paid in the DD Purchase register of the Kalka Branch. It was also found, during the course of investigation, that two cheques bearing No. 608689 and 608690 had been issued by the Haryana State Electricity Board, for Rs.2500/- and Rs.5000/-, and the same had also been purchased on 19.12.1977 and 16.12.1977, respectively, but Balram Arora, accused, made false entries, in the DD Purchase Register, showing the same, for Rs.14500/- and Rs.12,500/- respectively on 27.12.1977. Kewal Singh Dhillon, accused, thus, cheated the bank, to the extent of Rs.17,000/- by posing/impersonating himself as M.S. Dhillon and also forged his signatures. Balwant Singh, the then Branch Manager ( since deceased ) and Balram Arora, accused did falsification of accounts, and mis-used their official positions, in order to give pecuniary advantage to Kewal Singh Dhillon ( since deceased ). 3. After the completion of investigation, challan for the offences punishable under Sections 120-B read with Section 419, 420, 467, 477-A IPC, 5(2)/5(1)(d) of the Prevention of Corruption Act, and specific offences under Sections 419, Crl. Appeal No.465-SB of 1988 --6-- 420, 467, 477 , 477-A IPC and 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, was presented. 3-A. Balwant Singh, accused died before framing of charge. 4. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge for the offence punishable under Section 120-B IPC was framed against Kewal Singh Dhillon and Balram Arora, accused. Kewal Singh Dhillon, accused ( since deceased ) was also charged for the offences punishable under Sections 419, 420, and 467 IPC, whereas, Balram Arora, accused was charged for the offences punishable under Sections 5(1)(d) punishable under Section 5(2) of the Prevention of Corruption Act, 1947 and 477-A IPC. It was read over and explained, in simple Hindi, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined H.S. Sahni, Accountant, Office of the CBI, Chandigarh, (PW-1), G.S. Bedi, Branch Manager, SBP, Sector 17-C, Branch, Chandigarh, (PW-2), Subhash Chand Bhaskar, Officer, Planning Cell, State Bank of Patiala, Patiala, (PW-3), U.C. Sharma, Branch Manager, New Bank of India, Jagadhari, (PW-4), Vinod Seth, Clerk-cum-typist, SBP, Branch Sector 22- D, Chandigarh, ( PW-5 ), J.S. Kainth, Retired Chief Vigilance Officer, SBP, ( PW- 6 ), S.L. Shukla, Retired Assistant General Crl. Appeal No.465-SB of 1988 --7-- Manager, SBP, Patiala, ( PW- 7 ), Bhajan Partap Singh, Officer, Punjab and Sind Bank, Sector 26 Branch, Chandigarh, ( PW-8 ), Kulwinder Singh, Clerk-cum-Cashier, Punjab and Sind Bank, Currency Chest, Sector 17, Chandigarh, ( PW- 9 ), P.C. Gupta, Officer, Andhra Bank, Sector 17, Chandigarh, ( PW- 10 ), H.P. Sharma, Regional Manager, SBP, Delhi, ( PW- 11 ), B.D. Singal, Officer Scale II,SBP,Regional Office,-II, Chandigarh, ( PW-12 ), Ram Narain, Branch Manager, SBP, Branch Domehar, District Solan, ( PW-13 ), S.K. Sexana, Assistant Government Examiner of questioned documents,Government of India, Shimla,(PW- 14), Bhushan Lal Sud, LDC, Office of the Special Police Establishment, Chandigarh, ( PW- 15 ) and Harbhajan Ram, DSP, Special Police Establishment SIC-2, New Delhi. Thereafter, the Public Prosecutor for the C.B.I., closed the prosecution evidence. 6. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Balram Arora, accused, in his statement recorded under Section 313 Cr.P.C., stated that, as per instructions of Balwant Singh, Branch Manager, who had purchased the cheque, in question, he had prepared the DD purchase slip Ex.PW11/C. It was further stated by him, in his statement, that he had shown Rs.70/- as exchange Crl. Appeal No.465-SB of 1988 --8-- charges in the relevant entry of the DD Purchase Register, but Balwant Singh, accused ( since deceased ) waived off the same to the party. He, however, admitted that the relevant entry Ex.PL, made in the DD Purchase Register, was in his hand, which was duly authenticated under the signatures of the Branch Manager. He also admitted, that cheque No. 539394 for Rs.17,000/-, which was entered at entry Ex.PL, dated 12.12.77, was received back, alongwith forwarding schedule by the Branch Manager, who later on handed over the forwarding schedule Ex.PQ, only to him, and the same ( cheque ) remained in the custody of Branch Manager. It was further stated by him, that he being a Clerk-cum-typist, was doing mostly the typing job, and did not have a clear comprehension of various dealings of the bank, particularly the field of advances and DD purchases. It was further stated by him that inadvertently, he had neither written the words “returned” nor he had written the words “paid”, but in the relevant column, in entry Ex.PL, in the DD Purchase Register, he marked the date, which was done, in both the cases. He further stated that the interest on account of return of DD was recovered, in cash, through a voucher, which was on the record. He further stated that the voucher on the reverse of the forwarding schedule Ex.PQ was also prepared ( by him ) as per the instructions. He further stated that the liability of the party remained outstanding. He also took up the same plea, about Crl. Appeal No.465-SB of 1988 --9-- the other unpaid cheque for Rs.10,000/- by stating that the words 'returned' could not be written by him inadvertently against the relevant entry Ex.PW12/D. He, however, admitted, that the entry Ex.PW12/C about the purchase of cheque No. 608690, for Rs.2500/- and entries Ex.PW12/E and Ex.PW12/F, showing purchase of cheque No. 608689, for Rs.14,500/- and Rs.12,500/- , were in his hand, duly authenticated by the Branch Manager, Balwant Singh. He further stated that powers to purchase cheques were vested in the Branch Manager and he ( Balram Arora ) was only to make entries, as directed by him. 7. Accused Balram Arora examined S.K. Singh, Manager, State Bank of Patiala, Branch Kalka, DW1, who produced attested photo-stat copies Ex.D1 to Ex.D10 of certain paragraphs of Bank book of instructions, and attested photo copies Ex.D11 of circular No. GEN/75 of 1979, L.D. Khanna,Retired General Manager, State Bank of Patiala,DW-2, who stated that bank circulars and Bank book of instructions remain in the branch of the bank, in the custody of the Branch Manager. He further stated that during his tenure an enquiry was conducted against Balwant Singh, the then Branch Manager of Kalka Branch, and many irregularities of serious nature, committed by him ( Balwant Singh ) had come to the fore, during the course of the same. Thereafter, he closed his defence evidence. Crl. Appeal No.465-SB of 1988 --10-- 8. After hearing the Public Prosecutor for the CBI, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 9. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Balram Arora, appellant. 10. I have heard the learned counsel for the parties, and have gone through the evidence and record, of the case, carefully. 11. The Counsel for the appellant, at the very outset, submitted that Balram Arora, accused, was not a beneficiary. He further submitted that he was only a new comer at that time and working as a Clerk-cum-typist. He further submitted that he did not know the procedure, regarding the purchase of cheques, making of entries etc. He further submitted that Balram Arora, accused, was having no mens-rea to falsify the record. He further submitted that the cheque after receipt, was retained by Balwant Singh, Branch Manager ( since deceased ), as per the instructions. He further submitted that no pecuniary loss to the bank, on account of the alleged irregularities, committed by Balram Arora, was caused. He further submitted that a suit was filed by the Bank, and decree was passed in its favour, for a sum of Rs.17,000/-. He further Crl. Appeal No.465-SB of 1988 --11-- submitted that even Kewal Singh Dhillon, accused ( since deceased ) returned the amount, withdrawn by him. It was further submitted that the accused/appellant, did not write the words “unpaid” or “paid” but only marked the date. He further submitted that, at the most, it could be said to be an administrative lapse, on the part of Balram Arora, but he did not commit any criminal offence. It was further submitted by him, that Balram Arora, did not mis-use his official position for causing pecuniary gain to Kewal Singh or M.S. Dhillon and pecuniary loss to the Bank. He further submitted that the appellant had been facing the criminal proceedings since 31.03.1980, the date when the FIR was registered. He further submitted that, in case, the Court, comes to the conclusion that the accused, committed the offences, he be given the benefit of the provisions of the Probation of Offenders Act. He further submitted that on similar charges, the other officials of the Bank whose case stood on worst footings, than the present case, were granted the benefit of probation. 12. On the other hand, the Counsel for the respondent, Central Bureau of Investigation, submitted that Balram Arora, accused, and Balwant Singh, the then Branch Manager, ( since deceased ), conspired with Kewal Singh Dhillon, who represented himself as M.S. Dhillon to cause him Crl. Appeal No.465-SB of 1988 --12-- wrongful gain and in pursuance of that conspiracy, the record was intentionally and wilfully falsified, as also the cheques which were unpaid, were shown as paid. He further submitted that since K.S. Dhillon had no sufficient funds, in his different bank accounts at Kalka and Chandigarh, he withdrew the amount in conspiracy with Balram Arora, accused and Balwant Singh, the then Branch Manager, ( since deceased ). He further submitted that the cheque bearing No. 746269, for a sum of Rs.10,000/- was purchased by Balwant Singh, the then Branch Manager, from Kewal Singh Dhillon, as was evident from entry Ex.PW12/D, at Sr. No. 1533 of Page No. 65 of the DD Purchase Register. He further submitted that the said cheque was received back as unpaid, but without giving the remarks of unpaid, Balram Arora, accused, made endorsement, showing payment in the column of date of payment. Again on 12.12.77, Kewal Singh Dhillon had issued a cheque No. 539394 for Rs.17,000/- , in favour of M.S. Dhillon and its purchase is recorded at entry Ex.PL, bearing Sr. No. 1582 dated 12.12.77 at page 67 of the DD Purchase Register, wherein, also Balram Arora, did not make any endorsement of the same, having been received as unpaid and rather made endorsement showing payment by recording date in the relevant column of date of payment. He further submitted that it was only to re-adjust the false payment of the said two cheques, referred to above, Crl. Appeal No.465-SB of 1988 --13-- entered at Ex.PQ12/D and Ex.PL, of the total value of Rs.27,000/- that Balram Arora, accused, had shown false re- purchase of cheque No. 608690 for Rs.14,500/-, entered at Sr. No. 1697 Ex.PW12/E and another cheque No. 608689 for Rs.12,500/-, entered at Sr. No. 1698 Ex.PW12/F, at Page No. 72 of the said register. He further submitted that these two cheques issued by the Haryana State Electricity Board, had been earlier purchased and received as paid, as was evident from entry bearing Sr. No. 1623 Ex.PW12/B and entry at Sr. No. 1640 Ex.PW12/C, both appearing at page No. 69 of the DD Purchase Register. He further submitted that Balram Arora, accused, in his capacity as a Bank Clerk, wilfully and intentionally falsified the bank accounts and by abusing his position, as a public servant, caused illegal pecuniary advantage, to the tune of Rs.17,000/-, to Kewal Singh Dhillon. He further submitted that there was mens-rea with Balram Arora, accused. He further submitted that had there been no mens-rea, he would not have falsified the accounts by making the wrong entries repeatedly. He further submitted that it was not a case of falsification of single entry, which might have been said to be made inadvertently, but a case of falsifying a series of entries to cause pecuniary gain to Kewal Singh Dhillon. He further submitted that Balram Arora, accused, was required to perform his duties, in accordance with law, and the instructions, issued by the Bank, Crl. Appeal No.465-SB of 1988 --14-- from time to time,and it could not be said that he was a pawn in the hands of the Bank Manager. He further submitted that, if an accused commits, an offence, may be at the instance of another accused, he is equally liable, for the same and cannot say that he did so only at the asking of the others and, thus, was not liable for the commission of any criminal offence. He further submitted that the trial Court rightly convicted Balram Arora, accused. He further submitted that since Balram Arora, accused/appellant, committed the offences punishable under Section 5(2) of the Prevention of Corruption Act, 1947 as also under Sections 120-B and 477-A of the Indian Penal Code, he was not entitled to be released on probation of good conduct. 13. After giving my thoughtful consideration, to the rival contentions of both the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. In the first instance, narration of undisputed facts, is a must, to understand the whole controversy, in its proper perspective. There is, no dispute, about the factum that Kewal Singh Dhillon ( since deceased ) was having account No. 627 in the State Bank of Patiala, Kalka Branch, Kalka, and account No. 635 in the name of M/s Neel Giri Films, Kalka, opened by him and also purporting to have been opened by one M.S. Dhillon, jointly with him, in the said Bank. There is hardly any dispute about the factum, that he was also having a current Crl. Appeal No.465-SB of 1988 --15-- account No. 203, in his name, at Andhra Bank, Sector 17, Chandigarh and another current account No. 30 in the name of M/s Hem Kunth Movies, Chandigarh, in Punjab and Sind Bank, Sector 26 Branch, Chandigarh.Ex.PD is the copy of the statement of account No. 627, State Bank of Patiala, Kalka Branch, Kalka. According to the statement of account, throughout the month of December 1977, he had only a balance of Rs.50/-, in his credit. Ex.PW8/A, is the statement of account, relating to account No. 30 , in Punjab and Sind Bank, Sector 26, Chandigarh of Kewal Singh Dhillon, which reveals that on 12.12.77 he had only a credit of Rs.172/-, towards his balance, and on the same day, he had deposited a sum of Rs.17,000/- by way of cash. On the same day i.e. 12.12.77 withdrawal of Rs.17,000/- through instrument No. 746268, in the name of Kewal Singh Dhillon, was shown. From the statements of account, relating to the accounts of Kewal Singh Dhillon, it was, thus, abundantly proved that he had virtually no money, in his accounts, but was in need of the same. It was with a view to help him out of his financial constraints that Balwant Singh, the then Branch Manager of State Bank of Patiala, Kalka Branch, Kalka ( since deceased ) and Balram Arora, accused entered into a criminal conspiracy with him. It was, in pursuance of that criminal conspiracy, that falsification of the records was done, by Balram Arora, accused. It is, therefore, in this perspective that the entire controversy and Crl. Appeal No.465-SB of 1988 --16-- the role played by the accused, in the commission of crime, are required to be taken into consideration. 14. The first question, that falls for determination, is, as to whether Balram Arora, appellant, had intentionally and deliberately falsified the bank record/accounts, showing the realization of the amount of cheque No. 539394 for Rs.17,000/- or it was an act of honest mistake, on his part. The making of entries in the relevant register were not denied by Balram Arora, accused. The evidence of Vinod Seth, Clerk, State Bank of Patiala, Sector- 22 D, Chandigarh, PW-5, is very important. It was stated by him, that it was his job to enter the cheques, received from outstations, in the register-Demand Drafts, for realization. It was further stated by him, that after making necessary entries, in the said register, the cheque used to be forwarded to the bank, on which it was drawn. It was further stated by him that, whenever, the proceeds of the cheque were received or the cheque was received dishonoured, relevant entry was made, in the said register, maintained by him. It was further stated by him, that the realization advice, used to be issued to the Bank, if the proceeds were received. If the cheque was received as dishonoured, then the original cheque was sent to the branch, from where the same had been received for realization. It was further stated by him that on 19.12.77, a DD was received for Rs.17,000/- from State Bank of Patiala, Kalka Branch, which Crl. Appeal No.465-SB of 1988 --17-- was entered at Sr. No. 24366, at page No. 26 of the demand draft, received for realization register. The said instrument was bearing No. 539394, which was sent to Andhra Bank Chandigarh for realization and the same was received back as dishonoured on 20.12.77. It was further stated by him that necessary entry, Ex.PW5/A, in this regard was recorded in the said register, against Sr. No. 24366, in his own hand, at page No. 26. It was further stated by him that necessary instructions about the said instrument,as having been received as unpaid, were sent to State Bank of Patiala, Kalka Branch, in the form of return of the original instrument. It was further stated by him, that a forwarding schedule, was also sent alongwith the said instrument, vide entry No. 1582, at page No. 67 of Inland Demands Bill Purchase Register, maintained by State Bank of Patiala, Kalka for 12.12.77. It was further stated by him, that the perusal of the said entry Ex.PL, disclosed that the proceeds of the said cheque, were apparently shown to have been received on 20/27.12.77. It was further stated by him that in case of instrument received as unpaid, the relevant entry should have been made as received 'unpaid'. It was further stated by him that entry, Ex.PW5/B, pertaining to DD at No. 1533, entered at Page No. 27 of the said register, received for realization,was in his hand. He further stated that the perusal of the said entry showed that the instrument received for Rs.10,000/- from State Bank of Crl. Appeal No.465-SB of 1988