THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.Nos.96 and 84 of 2006 Date: 24.02.2011 Crl.R.C.No.84 of 2006: Between: Hinge Manender … Petitioner/A.1 AND State of A.P., rep.by P.P. High Court of A.P., Hyderabad. … Respondent Crl.R.C.No.96 of 2006: Between: Gaddam Mallaiah … Petitioner/A.2 AND State of A.P., rep.by P.P., High Court of A.P., Hyderabad. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.Nos.96 and 84 of 2006 COMMON ORDER: The Special Judicial Magistrate of First Class for PCR cases, Warangal charged A.1 to A.3 for various offences. Charges for the offences under Sections 382 and 467 of the Indian Penal Code (‘IPC’ for short) were framed against A.1. Charges for the offences u/s.468 and 471 IPC were framed against A.1 and A.2. A charge for the offence u/s.409 IPC was framed against A.1 to A.3. As the accused pleaded not guilty for the charges, the prosecution examined as many as 14 witnesses. 42 documents were exhibited on behalf of the prosecution. MOs.1 to 3 were also filed by the prosecution. As against the evidence of the prosecution, the accused examined DWs.1 and 2. The learned trial Judge considered that no case was made out against A.3 and acquitted A.3 for the offence u/s.409 IPC. A.1 was found guilty of the offences u/s.381, 471 read with Section 465 IPC and 409 IPC. A.2 was held guilty of the offences u/s.471 r/w 465 IPC as well as 406 IPC. Jail sentence as well as fine were imposed by the learned trial Judge. 2. Aggrieved by the same, A.1 and A.2 preferred Criminal Appeal No.14 of 2004 before the V Additional Sessions Judge, Warangal. The conviction of A.1 for the offences u/s.381, 471 r/w 465 and 409 IPC recorded by the trial Court was confirmed by the appellate Court. The sentence of imprisonment and fine recorded by the trial Court were also confirmed by the appellate Court. While the trial Court convicted A.2 for the offence u/s.471 r/w 465 as well as for the offence u/s.406 IPC, the appellate Court found A.2 not guilty of the offence u/s.406 IPC and acquitted him of the said offence. The appellate Court found A.2 guilty of the offence u/s.471 r/w 465 IPC and confirmed the sentence of imprisonment and fine awarded against A.2 by the trial Court. Aggrieved by the same, A.1 preferred, Crl.R.C. No.84 of 2006 while A.2 preferred Crl.R.C.No.96 of 2006. As the appreciation of evidence is the same and as the trial against the revision petitioners and as the appeal by the revision petitioners were one and the same, these revisions are disposed of through this common judgment. 3. A.1 was a Messenger in Kakatiya Grameena Bank (‘KGB’ for short) at Hanumakonda branch. KGB is said to be a bank sponsored by the State Bank of India (‘SBI’ for short). KGB, Hanumakonda branch has current account with the SBI, Hanumakonda branch. A.3 is the wife of A.1. A.2 is a private individual. 4. The case of the prosecution is: a) PW.1, Branch Manager of KGB indented four cheque books of 100 leaves each from their sponsoring bank SBI, Hanumakonda branch. The SBI, Hanumakonda branch sent the four cheque books to the branch through A.1, who carried the indent to SBI, Hanumakonda branch. A.1 handed over the four cheque books to PW.1. The indent for cheque books, the acknowledgement of the cheque books by A.1 and handing over of the cheque books by A.1 to PW.1 occurred on 27.03.1998. b) On 27.11.1998, PW.1 noticed that one of the leaves of the cheque books was found missing. He promptly informed the same to PW.4, who was the Administrative Officer of KGB, Hanumakonda branch. In their turn, PWs.1 and 4 informed PW.3, Chief Manager of the SBI, Hanumakonda branch about the missing leaf in one of the cheque books received by the PW.1 and requested PW.3 to stop payment of the money if the cheque through the missed leaf were presented. PW.3 received the communication in writing from PWs.1 and 4 on 28.11.1998. c) While things stood thus, on 05.12.2008, the cheque consisting of the missed leaf was presented to SBI, Hanumakonda branch. The cheque was presented across the counter. Cash of Rs.2 lakhs was paid on the basis of the cheque. The cheque was drawn in favour of A.2. The cheque was endorsed on the overleaf of the cheque by A.2. On 13.01.1999, while PW.1 was reconciling the bank accounts, he noticed the payment of Rs.2 lakhs by SBI, Hanumakonda branch. After due verification, complaint was lodged on 21.01.1999 with police. d) On 16.02.1999 A.1 was arrested in the presence of PWs.7 and 8. A.1 made a confessional statement. Rs.60,000/- in cash was recovered from A.1 in the shape of a bundle with the stamp of SBI, Hanumakonda branch dated 04.12.1998. A.1 further produced fixed deposit receipt of Rs.50,000/- in the name of A.3 claimed to have been obtained with the money received by A.1 from SBI, Hanumakonda branch. A.1 took the police party to the house of A.2 where MO.3 of Rs.8,000/- was seized by police. MO.1 is the cash of Rs.60,000/- while MO.2 is the fixed deposit receipt for Rs.50,000/- in the name of A.3. e) A.1 to A.3 consequently are guilty of theft by a clerk of the bank in possession of the cheque books, forgery for the purpose of cheating and using the forged document as genuine, criminal breach of trust and criminal breach of trust by a public servant. 5. The prosecution examined as many as 14 witnesses in support of its contention. PW.2 allegedly filled Ex.P.1 cheque. A.1 allegedly owed monies to PWs.5 and 6 and he allegedly discharged the debt due to PWs.5 and 6 out of the money received by A.1. PWs.7 and 8 are the mediators for the arrest of A.1 and A.2 and for the seizure of Mos.1 to 3. These witnesses in PWs.2 and 5 to 8 did not support the prosecution story. They were indeed considered hostile. The learned Additional Public Prosecutor put leading questions to these witnesses with the permission of the Court. 6. Sri C. Praveen Kumar, learned counsel for the accused pointed out that PWs.1, 3, 4, 9 and 14 are primary witnesses to support the prosecution story. Claiming that these witnesses have not established the guilt of the accused beyond reasonable doubt, he sought for an acquittal of A.1 and A.2 of the offences for which they were convicted by the trial Court and the appellate Court. A1’s guilt: 7. It may be noticed that the cheque books were indented and received by PW.1 on 27.03.1998. It is the case of PW.1 that he noticed that one of the leaves of one of the cheque books was found missing on 27.11.1998 only. PW.1 deposed that barring for PW.1 and A.1, no one dealt with the cheque books and that no one had access to the cheque books apart from PW.1. Indeed, A.1 had access to the cheque books as he took delivery of the same to hand over the same to PW.1. 8. While so, PW.4 deposed that the receiving bank viz., KGB verifies the cheque folios when the cheque books are received from the SBI. In other words, PW.1 who received the cheque books on 27.03.1998 was expected to verify whether the cheque books received by him contained all the folios. Indeed, the verification must have been done on 27.03.1998 on which date the cheque books were received or on the very next day in the outer most. However, it is the case of PW.1 that he noticed that one of the folios in one of the cheque books was found missing as late as on 27.11.1998. As rightly submitted by the learned counsel for A.1 and A.2, this claim of PW.1 is wholly unsustainable. PW.1 must explain why he did not verify the folios in each of the cheque books received by him when he received the cheque books. PW.4 explained the procedure adopted when the cheque books are received by KGB from SBI (during his cross examination) pointing out that the folios of each cheque book are verified indeed when the cheque books are received. Thus, PW.1 was to verify the folios of the cheque books or but he did not to do so. If PW.1 did not verify the folios of the cheque books on 27.03.1998 or on the next working day at the outermost, why did not he do it? These questions are not answered by PW.1. It is PW.1 and PW.2 who alone can explain these circumstances. When PW.1 did not prove that the cheque books did not contain one of the leaves when delivered to PW.1 by A.1, the very offence of theft of one of the leaves of the cheque books by A.1 would not arise. Where PW.1 failed to explain why he did not verify the leaves of the cheque books till 27.11.1998, it cannot be said that A.1 was responsible for the missing leaf. Indeed, PW.1 himself could have been responsible for missing one of the leaves of the cheque book. In any event, when admittedly the cheque books were delivered by A.1 to PW.1 on 27.03.1998, it is not open for PW.1 to contend that he verified the cheque books and found one of the folios/leaves missing as late as on 27.11.1998. I agree with the contention of the learned counsel for the accused that the accused at once would not be guilty of the offence of the theft of a folio from the cheque books. The necessary consequences are that the accused were not guilty of criminal breach of trust and forgery and would be entitled to be acquitted of all the charges that are levelled against them. 9. There are several factors, which have not been explained by the prosecution convincingly. One of these factors has already been pointed out viz., the failure of PW.2 to count the folios and receive the cheque books after verifying of the folios of cheque books. The second factor is the honouring of the cheque on 05.12.1918 despite report by PW.1 to PW.3 about the missing leaf with a request not to honour the cheque. Admittedly, PW.3 entered the request of PW.1 on the computer. Admittedly, the computer would alert the bank when the cheque is to be encashed in respect of which stop payment request was made. 10. Nevertheless, the cheque under Ex.P.1 was honoured when presented to the bank across the counter. It is the case of PW.3 that by oversight, the cheque was honoured when it was presented. It is difficult to swallow this statement of PW.3. What was the oversight which made the officials of the bank to honour the cheque is not understandable. Where the computer of the bank alerts the bank officials when Ex.P.1 cheque was presented, why and how did the bank officials honour the cheque is for the prosecution to explain. No explanation is offered by the prosecution in this context. The learned counsel for the accused contended that all is not well and that there is every possibility of the bank officials of the KGB, Hanumakonda branch and SBI, Hanumakonda branch had connived and colluded with each other to cause wrongful loss to the banks and that after the fraud was detected, they were making A.1 a scapegoat of the fraud. I do not venture to go thus far to hold that there was fraud on the part of PWs.1 and 4 together with PW.3 and others. I, however, would point out that the prosecution failed to explain how the cheque under Ex.P.1 was honoured by SBI, Hanumakonda branch when there was a stop payment endorsement, which admittedly was recorded in the computers of the bank. This is yet another situation which is baffling, throwing doubt over the merits of the very case of the prosecution. 11. PW.1 admittedly received the cheque books from A.1 on 27.03.1998. The prosecution failed to show that one of the folios of the cheque books was found missing when the cheque books were handed over by A.1 to PW.1. Ever since 27.03.1998, the cheque books had been in the custody of PW.1. When a folio was found missing in one of the cheque books, curiously accusation was made against A.1. Once cheque books were delivered by A.1 to PW.1, PW.1 had no access to the cheque books thereafter. A.1 was after all a messenger of the bank. The question of his meddling that the cheque book and taking away one of the leaves of the cheque books is improbable if not impossible. The allegation that A.1 committed theft of one of the leaves of the cheque books as a clerk or servant of PW.1 of the bank punishable u/s.381 IPC, consequently, is not made out. I have no hesitation to accept the stand of the accused that A.1 was not guilty of the offence u/s.381 IPC. 12. The recovery of the cash and fixed deposit receipt from A.1 to A.3 is projected by the prosecution to establish criminal breach of trust by A.1 to A.3 and also to establish forgery and using the forged document as genuine document. 13. It is the case of the prosecution that A.1 and A.2 scribed the signature of PW.4 on Ex.P.1. It is the further case of the prosecution that Ex.P.1 cheque does not bear the signature of PW.4. It must first be established that the cheque did not bear the signature of PW.4. It must also be established that the accused forged the same so as to become punishable u/s.471 r/w 465 IPC. While so, there is no evidence showing that Ex.P.1 cheque does not bear the signature of PW.4. 14. More important is not the question whether Ex.P.1 is a forged cheque. What is relevant is whether the accused were responsible for the forgery. There is no evidence in this regard. No one saw A.1 and A.2 forging the signature of PW.4 on Ex.P.1. Barring for the fact that Ex.P.1 is one of the folios of the cheque books brought by A.1 from SBI, Hanumakonda branch to the KGB, Hanumakonda branch, there is no other link between Ex.P.1 and A.1. Ex.P.1 does not contain the thumb mark of A.1 anywhere. Admittedly, A.1 did not present Ex.A.1 to the bank. It, therefore, is clear that the prosecution failed to establish that A.1 committed the offence u/s.465 r/w 471 IPC. 15. Assuming that A.1 presented the cheque and also assuming that Ex.P.1 was forgery, A.1 would not be liable unless it is shown that A.1 was aware that Ex.P.1 was a forged cheque and consciously presented the same to the bank. It is not even established by the prosecution that Ex.P.1 was forgery, let alone establishing that A.1 presented the same to the bank with a view to use the same knowing full well that Ex.P.1 was forged. There is absolutely no evidence that A.1 presented the cheque to the bank, let alone showing that A.1 forged the signature of PW.1 on Ex.P.1. Consequently, the prosecution failed in establishing the guilt of A.1 for the offence u/s.471 r/w 465 IPC. 16. Regarding criminal breach of trust, it is the case of the prosecution that MOs.1 and 2 were seized from the possession of A.1 and A.3 respectively and MO.3 was seized from the possession of A.2. A.1 did not accept that MO.1 was seized from him and MO.2 was seized from his wife. Sri C. Praveen Kumar, learned counsel for the accused contended that if A.1 was guilty of using Ex.P.1, the moment he received the cash, he would have destroyed the seal of the bank to disable tracing MO.1 to the bank from which it was withdrawn. At any rate, A.1 did not admit that MO.1 was seized from him. 17. The accused examined DW.1. According to DW.1, he was working as an Assistant Lineman in the Electricity Department and that he produced Rs.60,000/- constituting MO.1 that Rs.8,000/- constituting MO.3 before the police upon their direction and that police got the stamp of SBI Hanumakonda branch incorporated on MO.1. It is a far fetched defence. At the same time, where PWs.7 and 8 before whom A.1 allegedly made a confession and before whom MOs.1 to 3 were seized did not support the prosecution story, the recovery of MOs.1 to 3 from the possession of A.1 to A.3 has not been made out by the prosecution. 18. The solitary evidence of PW.14 that MOs.1 to 33 seized from the possession of A.1 to A.3 is not sufficient to hold A.1 guilty of any of the offences much less criminal breach of trust. Further, the very seizure has not been proved and has not been admitted by A.1. Consequently, the alleged seizure of MOs.1 to 3 from the possession of A.1 to A.3 by police cannot be accepted. Thus, it is not established that A.1 committed theft of one of the folios of the cheque books received by him from the SBI, Hanumakonda branch. The prosecution failed to show that A.1 was guilty of committing forgery and was using Ex.P.1 cheque knowingly that the same was forgery and thus failed to establish the offence u/s.471 r/w 465 IPC. The prosecution failed to prove that MOs.1 to 3 were recovered from the possession of A.1 to A.3. Consequently, A.1 cannot be found guilty of the offence u/s.409 IPC. The prosecution thus failed to establish any case against A.1 for any of the offences u/s.381, 471 r/w 465 and 409 IPC. A.1 is liable to be acquitted of the offences for which he has been convicted and the sentence of imprisonment and fine recorded against him are liable to be set aside. Case of A.2: 19. So far as A.2 is concerned, it is the case of the prosecution that A.2 was in connivance with A.1 in presenting Ex.P.1 cheque before the SBI, Hanumakonda branch and, thus, was guilty of the offence u/s.471 r/w 465 IPC. It may be recalled that A.2 was convicted for the offence u/s.406 IPC also by the trial Court, but the appellate Court acquitted A.2 of the offence u/s.406 IPC. 20. It is the case of the prosecution that Ex.P.1 cheque was in the name of A.2 and that A.2 presented the same before the bank. Curiously, it is not the case of the prosecution that A.2 forged the signature of PW.1. It would appear to be the case of the prosecution that A.2 knew that Ex.P.1 was forgery. However, it is for the prosecution to show that A.2 was aware that Ex.P.1 was forgery before the prosecution can establish the guilt of A.2 for the offence u/s.471 IPC. The learned counsel for the accused contended that it is not proved that Ex.P.1 did not contain the signature of PW.1 or PW.4. There is close resembles between the signatures as found in Ex.P.1 and the admitted signature of PW.4 in his deposition. At any rate, the prosecution failed to link A.2 with the forgery, if Ex.P.1 is a forged document and was not signed either by PW.1 or PW.4. In any event, even if Ex.P.1 is forgery, where the prosecution failed to show that A.2 was aware that Ex.P.1 was forgery, A.2 cannot be convicted for presenting the cheque before SBI, Hanumakonda branch. A.2 escapes criminal liability on technical grounds. Be that as it may, the prosecution failed to establish that A.2 knew that Ex.P.1 was forgery and used the same deliberately. A.2 consequently cannot be punished for the offence u/s.471 r/w 465 IPC. Conclusions: 21. Thus, the prosecution failed to establish the guilt of A.1 and A.2 for any of the offences with which they are charged. A.1 and A.2, therefore, are liable to be acquitted of the offences for which they were convicted by the appellate Court. The appreciation of the evidence by the appellate Court as well as by the trial Court is erroneous and deserves to be interfered with. 22. Inter alia, the trial Court ordered return of MOs.1 and 3 consisting of Rs.68,000/- in cash to SBI, Hanumakonda branch and refund of MO.2 in the shape of fixed deposit receipt to SBI, Hanumakonda branch. No appeal or revision was filed in respect of the disposal of property by the trial Court and confirmed by the appellate Court. I, therefore, deem it appropriate not to interfere with the order of the disposal of the property recorded by the trial Court and by the appellate Court. 23. These Criminal Revision Cases, for the above mentioned reasons, are allowed to the extent of the conviction recorded by the trial Court and confirmed by the appellate Court against A.1 and A.2. A.1 is found not guilty of the offences u/s.381, 471 r/w 465 and 409 IPC. A.2 is found not guilty of the offence u/s.471 r/w 465 IPC. Both the accused are acquitted accordingly. The fine amount, if paid by the accused, shall be refunded to them. The order regarding the return of the property in MOs.1 to 3 is maintained in view of no revision on that count. The revisions are ordered accordingly. _______________ K.G. SHANKAR, J Date: 24.02.2011 Isn