IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.710/2000 Reserved on:12.11.2008 Decided on:22.12. 2008 Ram Lal. …Appellant. Versus State of Himachal Pradesh. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1no For the Appellant : Mr. Parmod Thakur, Advocates For the Respondent : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder dogra, Additional Advocate General and Mr. Vikas Rathore, Deputy Advocate General. Mr. Sandeep Sharma, Assistant Solicitor General of India and Mr. Ravinder Thakur, Central Government Counsel for the Central Bureau of Investigation. Rajiv Sharma, J. The accused was tried in Corruption Case No. 7-S/7 of 2K/97 under section 13 (1) (c) read with section 13 (2) of the Prevention of Corruption Act, 1988, sections 409, 468, 471 and 477-A of the Indian Penal Code by the learned Special Judge, Shimla. The accused was convicted for the offences punishable under section 13 (1) (c) read with section 13 (2) of the Prevention of Corruption Act, 1988, sections 409 1 Whether the reporters of Local Papers may be allowed to see the judgment? no 2 and 477-A of the Indian Penal Code and he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- for offence under section 13 (1) (c) read with section 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of six months. He was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5000/- under section 409 of the Indian Penal Code and in default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of six months. He was further sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5000/- under section 477-A of the Indian Penal Code and in default of payment of fine he was directed to undergo rigorous imprisonment for a further period of six months. The sentences awarded to him for all the offences were to run concurrently. The case of the prosecution in nutshell is that the accused was employed as a Peon in the United Commercial Bank. Though he was a Peon by designation, he was assigned clerk’s job on account of shortage of clerical staff in the Branch. His job was of manning saving bank accounts counter. He defrauded the United Commercial Bank Branch of several lakhs of rupees. His modus operandi was that while discharging his duties at the saving bank accounts counter, he would receive money meant for deposit in saving accounts from the account holders and make entries in their pass books in his own hand. He would not account for that money in the account books of the bank nor would he pass on the same to the cashier. No pay-in-slips used to be filled in nor was any entry regarding those deposits made in the scroll, daily cash receipt book and the cash payment book maintained by the cashier. He used to pocket that money. When he was approached by the depositors for the withdrawals of the 3 month, he would make fake credit entries in the ledger accounts of the concerned account holders, fill in the withdrawal slips and submit the same to the officer concerned for passing the orders for payment. When the fraud came to the notice of the Divisional Office, a committee of two officers, namely Shri R.C. Chhabra and Sh. M.P. Sethi was deputed to hold a preliminary enquiry. The matter was looked into by these officers. The accused admitted during the course of inquiry that he was responsible for the bungling detected in the various accounts for which tabulated statement had been made by the committee. He made the admission in writing recorded on each of the tabulated statements. He recorded in his own hand such statements that he had received the money from the account holders, but had not accounted for the same and that he had made fake credit entries in the ledger folios of the concerned account holders in the ledger and forged the initials of the Bank Manager to authenticate those entries. The recommendations made by this committee were accepted and two officers, namely, Sh. R.K. Soni and Sh. H.O. Aggarwal were deputed to look into the matter in detail. The accused made a confessional statement in the form of writing addressed to one of them Sh. R.K. Soni. He has confessed that he had been collecting money from the account holders and pocketing the same and when the account holders visited the bank for withdrawal of money, he used to make fake entries in their ledger accounts and on the basis of those entries, withdrawals were allowed by the concerned officer. He also stated that he used to the balancing and to tally the balance in various accounts. The Superintendent of Police, Central Bureau of Investigation, Chandigarh registered a case against the accused. The matter was investigated by Sh. N.S. Negi, Inspector, Central Bureau of Investigation 4 Unit, Shimla. The challan was prepared and presented in the court of learned Special Judge (District and Sessions Judge) (Forest), Shimla, who after completing all the formalities under section 207 of the Code of Criminal Procedure and after hearing the learned Public Prosecutor and the learned defence counsel and perusing the record, chargesheeted the accused under sections 409, 468, 471 and 477-A of the Indian Penal Code and section 13 (1) (c) read with section 13 (2) of the Prevention of Corruption Act, 1988. The accused did not plead guilty of the charges and, therefore, ordered to be tried. The prosecution examined as many as 13 witnesses to prove the charge against the accused. Four of them were Account Holders, six were the Bank Officials/Officers and the remaining three witnesses were the Investigation Officer, Government Examiner of Questioned Documents and the witness in whose presence the specimen/signatures/ writings/ initials of the accused were taken. The statement of the accused was recorded under section 313 of the Code of Criminal Procedure. He denied having ever worked on the seat of the Clerk in the Bank. The trial court on the basis of the evidence found the accused guilty of offences and he was convicted and sentenced as per the details given in the opening portion of the judgment. The present appeal has been directed against the judgment of the learned trial court dated 1.12.2000. Mr. Parmod Thakur, Advocate has strenuously argued that the judgment dated 1.12.2000 is not sustainable in the eyes of law. He has vehemently argued that the learned Special Judge has committed illegality by taking into consideration the extra-judicial confession made by his client before the Committees. He also contended that it is always open to the accused to retract from the statements which has 5 been made on the basis of the inducement, threat and coercion. He lastly contended that his client was never entrusted with the duties of handling the accounts and there was no criminal breach of trust. Mr. R.K. Sharma, Senior Additional Advocate General and Mr. Sandeep Sharma, Assistant Solicitor General of India have supported the judgment dated 1.12.2000. I have heard the learned counsel for the parties and perused the record carefully. The accused has made the confession twice. Initially he made the confession before the Committee comprising of Sh. R.C. Chhabra and Sh. M.P. Sethi and thereafter before Sh. R.K. Soni. One of these Officers, Sh. R.C. Chhabra has been examined by the prosecution as PW-3. He has deposed that accused wrote confessional statement consisting of 11 sheets and forming part of his report Ex.PW-3/A before him and his colleague Sh. M.P. Sethi’s presence and signed the same. Ex.PW-3/A is the tabulated statement prepared by the two members of the Committee in respect of the saving bank accounts in which fake entries had been detected. The accused at the bottom of each of the statements wrote in his own hand and under his signatures that he had received the money from the account holders named in the statements for being deposited in their accounts, but instead of accounting for the same in the books of the Bank, pocketed it and later on made fake entries and forged the initials of the Manager. Mr. Parmod Thakur has strenuously argued that this extra-judicial confession could not be relied upon by the trial court for the simple reason that Mr. R.C. Chhabra and Mr. M.P. Sethi were superior officers of the accused and they have used their influence on him. A suggestion was made to one of the witnesses that the confessional statement was 6 not made by the accused. He has denied the suggestion emphatically. No question was put to him that the confessional statements were not made by the accused in his own handwriting and signed by him. No suggestion was put to Sh. R.C. Chhabra that he or any other person made any inducement, threat or coercion to the accused at the time of writing of his confessional statements. The accused had also submitted in writing addressed to R.K. Soni about his guilt. This writing was also made in accordance with law part of investigation report Ex.PW-2/A. Sh. R.K. Soni (PW-2) has testified that the writing at pages 143 and 144 of the report Ex.PW-2/A was prepared by the accused in his own handwriting in his presence and in the presence of his co-investigator Sh. H.P. Aggarwal and thereafter the accused put his signatures on this writing in their presence. He had admitted having received money from various account holders for being deposited in their saving bank accounts and having made entries in their pass books. Besides this he also confessed that he did not account for the money and pocketed the same and that when the account holders visited the bank for the withdrawal of the money, he used to make fake entries in the ledger folio of their accounts and on the basis of those fake entries, withdrawals used to be made. Sh. R.K. Soni has appeared as PW-2. Again a suggestion was put to Sh. R.K. Soni that the accused did not make any statement before them. The accused ought to have put a suggestion also to Sh. R.K. Soni that he had exercised undue influence and inducement which resulted in the confessional statement. PW-12 Sh. B.A Vaid, Assistant Government Examiner of Questioned Documents has compared the signatures of the accused on the various documents. He had categorically opined about three such entries, namely, Ex.PW-1/J-3-A for Rs. 6000/- in account No. 1380 in the 7 name of Sh. Sham Lal in books Ex.PW-1/J, Ex.PW-1/J-10 for Rs. 10,000/- in account No. 2926 in the name of Chander Dev Sharma in book Ex.PW-1/J-10 and Ex.PW-1/J-15 for Rs. 15,500 in account No.2964 in the name of Illa Chauhan in book Ex.PW-1/J. He has opined that these entries appeared to be in the hand of the same person, who has written/signed/initialed the specimen on sheets Ex. PW-5/11 to PW- 5/324. His opinion is Ex.PW-12/A. He has assigned specific reasons in his statement. This expert opinion also corroborates the extra-judicial confession of the accused. The statement of PW-10 Sh. A.K. Gupta also corroborated the extra-judicial confession and the opinion of the expert. The entries made in the accounts of five persons, namely, Joginder Mistri, Sham Lal, Kaushalya, Chander Dev Sharma and Illa Chauhan are also fake. PW-10 Sh. A.K. Gupta abd PW-1 Prem Chand have testified that they were no pay-in-slips or voucher in respect of the entries nor are there corresponding entries in the scroll or the daily cash receipt books. These witnesses have not cross-examined on this point. Their Lordships of the Hon’ble Supreme Court in Nishi Kant Jha versus State of Bihar, AIR 1969 SC 422 have held that inculpatory portion can be accepted if the exculpatory portion is found to be inherently improbable when the confessional statement was made to Mukhiya of village. Their Lordships have held as under: “In this case the exculpatory part of the statement in Ex. 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under S. 342 Cr. P. C. to the effect that he had received the injury in a scuffle with a herdsman. 8 The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the blood- stains being so considerable as to attract the attention of Ram Kishore Pandey, P. W. 17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post mortem report this knife could have been the cause of the injuries on the victim. In circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Ex. 6 the High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime.” Their Lordships of the Hon’ble Supreme Court in Piara Singh versus State of Punjab, AIR 1977 SC 2274 have held that law does not require that the evidence of an extra judicial confession should in all cases be corroborated. Their Lordships have further held that where the extra judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants, there was hardly any justification for the Sessions Judge to disbelieve the evidence of such a witness particularly when the extra judicial confession was corroborated by the recovery of an empty cartridge from the place of occurrence. Their Lordships have held as under: 9 “Thus taking an over-all view of the picture presented by the prosecution case we find that there is sufficient evidence against the accused to prove the charge of murder against them. The evidence of the eye- witnesses is fully corroborated by the medical evidence, the evidence of the recoveries, the evidence of the ballistic expert and the evidence of P. W. Balbir Singh who deposed regarding the extra judicial confession made by the accused Piara Singh. The learned Sessions Judge regarded the extra judicial confession to be a very weak type of evidence and therefore refused to rely on the same. Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. In the instant case, the extra judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants. There was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra judicial confession was corroborated by the recovery of an empty (sic) (cartridge?) from the place of occurrence. Similarly, their Lordships of the Hon’ble Supreme Court in State of U.P. versus M.K. Anthony, AIR 1985 SC 48 have held that there is neither any rule of law nor of prudence that evidence furnished by extra- judicial confession cannot be relied upon unless corroborated by some other credible evidence. Their Lordships have held as under: “There is neither any rule of law no of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extra-judicial confession a weak piece of evidence. (See Jagta v. State of Haryana (1975) 1 SCR 165 at. P. 170 : (AIR 1974 SC 1545 at. P. ISM) and State 10 of Punjab v. Bhajan Singh (1975) 1 SCR 747 at. P. 751 : (AIR 1975 SC 258 at P. 261). In Sahoo v. State of U. P. (1965) 3 SCR 86 : (AIR 1966 SC 40), it was held that an extra-judicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime. Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However in Pyara Singh v. State of Punjab (1978) 1 SCR 597 : (AIR 1977 SC 2274), this Court, observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extra- judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial confession comes from the mouth of witness / witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out Which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the 11 perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test, on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be, the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.” In the present case the confessional statement has been made by the accused initially in the presence of Sh. R.C. Chhabra and Sh. M.P. Sethi. As noticed above, no question/suggestion was put to Sh. R.C. Chhabra that extra-judicial confession was an outcome of any threat, inducement or allurement. The statement has been made by the accused voluntarily. This statement runs into 11 sheets and form part of report Ex.PW-3/A. He again made extra-judicial confession before Sh. R.K. Soni. Sh. R.K. Soni has appeared as PW-2. He was also not put any question in cross-examination that the extra-judicial confession has been made by the accused on the basis of the inducement, threat or allurement while exercising the position of authority. This statement forms part of report Ex.PW-2/A. The trial court had rightly relied upon these extra-judicial confessional statements made by the accused while convicting and sentencing him. It has also come in the evidence, as discussed hereinabove, that he made false entries defrauding the Bank. He was assigned the work of clerk on account of shortage of clerks and he was manning the saving bank accounts counter. It was his duty to account for every deposit received by him instead of fabricating the fake entries in the various ledgers, pay-in-slips, scrolls etc. The trial court on 12 the basis of the extra-judicial confession made by the accused, which was corroborated by the expert opinion, has rightly convicted the accused. In view of the aforesaid reasoning, there is no merit in this appeal and the same is dismissed. The appellant is directed to surrender before the trial court for serving the sentence as awarded to him vide judgment dated 1.12.2000. The bail bonds are cancelled. 22.12. 2008 (Rajiv Sharma ), J. *awasthi*