IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 Crl.Rev.Pet.No. 1335 of 2002() --------------------------------------------- CRA.309/1999 of ADDL.SESSIONS COURT (SPL.CAURT), KOTTAYAM CC.647/1992 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM ............................................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------- T. SIVANANDAN, S/O. THANKAPPAN ACHARI, SHILPAM VEEDU, VERUMTHURUTHY KARA, MANNAMCHERRY VILLAGE, ALAPPUZHA DISTRICT. BY ADV. MR.H.B.SHENOY MR.B.ASHOK SHENOY MRS.LAKSHMI B.SHENOY RESPONDENT(S): RESPONDENT/COMPLAINANT: ---------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KOTTAYAM WEST POLICE STATION, KOTTAYAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.K.S.SIVAKUMAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------- Crl.R.P.No.1335 of 2002 --------------------------- Dated this the 12th day of July, 2010 O R D E R Petitioner was the Senior Clerk, Syndicate Bank, Kottayam Branch during 1991. PW1 was the Manager. Prosecution case is that, petitioner fabricated Ext.P3 and P3(a) withdrawal slips and had withdrawn Rs.10,000/- (total of Rs.20,000/-) as if the account stands in the name of V.V.Jose, when in fact, the account was in the joint name of late Bishop Poly Carpus and Jaccob. Prosecution case is that petitioner fabricated Ext.P3 and P3(a) withdrawal slips and used them as genuine and misappropriated Rs.20,000/- and thereby committed offences under Sections 408, 468 and 471 of Indian Penal Code. Petitioner pleaded not guilty when the charge was read over and explained by the Chief judicial Magistrate, Kottayam in CC No.647/1992. Prosecution examined 10 witnesses and marked 19 exhibits. Petitioner did not adduce any evidence. The Chief Judicial Magistrate, on the evidence of Pws 1 to 3 and 9 found that, petitioner fabricated Ext.P3 and P3(a) withdrawal slips and had withdrawn Rs.10,000/- each Crl.R.P.No.1335 of 2002 2 from the account which was standing in the joint name of Bishop Poly Carpus and Jaccob as if it is the account maintained by V.V.Jose and thereby misappropriated Rs.20,000/-. The learned Chief Judicial Magistrate convicted the petitioner for the offence under Section 408, 468 and 471. He was sentenced to Rigorous Imprisonment for three years for the offence under Section 408, Rigorous Imprisonment for one year for the offence under Section 468 and Rigorous Imprisonment for one year for the offence under Section 471 providing that substantive sentences shall be run concurrently. Sett off was allowed as provided under Section 428 of Code of Criminal Procedure. Petitioner challenged the conviction before Sessions Court, Kottayam in Crl.Appeal No.309/1999. The learned Sessions Judge on reappreciation of the evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. Learned counsel appearing for the petitioner argued that there is no evidence to prove that, Ext.P3 and P3(a) were forged by the petitioner and though learned Chief Judicial Magistrate relied on the report of the expert who compared Ext.P3 and P3(a) with Ext.P4 withdrawal slips in the account of Crl.R.P.No.1335 of 2002 3 the petitioner, the expert was not examined and the report was not also not marked and in such circumstances it is illegal to rely on the observations in the report, without granting opportunity to the petitioner to cross examine the expert. The learned counsel argued that there is no conclusive evidence to prove that the signature in Ext.P3 and P3(a) are that of the petitioner and fact that the handwriting in Ext.P3 and P3(a) is similar to the handwriting of the petitioner will not establish that petitioner committed the offence. It was argued that it is the practice in the bank for the officials to help the customers by filling up the withdrawal form, if necessary at their request and for the reason that petitioner filled up the withdrawal slip it need not necessarily be found that petitioner forged the bills. The learned counsel also argued that, there is no evidence as to who received the amount under Ext.P3 and P3(a) withdrawal slips and the evidence show that the withdrawal slips are issued only to the customers who are present it in the bank and in such circumstances the conviction is bad. The learned counsel also argued that in any case petitioner is entitled to the benefit of doubt and at any rate the sentence awarded is excessive and further submitted that as the incident was in Crl.R.P.No.1335 of 2002 4 1991, at this distant point of time, petitioner may not be sent to prison. The learned Public Prosecutor submitted that the evidence of PWs 1 to 3 that they are acquainted with the handwriting and signature of the petitioner and the handwriting and signature seen in Ext.P3 and P3(a) are that of the petitioner was not challenged at the time of cross examination and learned Chief Judicial Magistrate had compared the signature and handwriting seen in Ext.P3 and P3(a) with the admitted signature in Ext.P4. It was pointed out that learned Chief Judicial Magistrate has only relied on the observations of the expert for considering the identity of the handwriting and signature, by her own examination and the report was not used as substantive evidence. The learned Public Prosecutor submitted that evidence establish that it was the petitioner who prepared Ext.P3 and P3(a) withdrawal slips and it was the petitioner who signed, in them and also verified the signature and made an endorsement on Ext.P3 and P3(a) as and learned Sessions Judge reappreciated the evidence and there is no illegality and there is no reason to interfere with the conviction and the sentence. Crl.R.P.No.1335 of 2002 5 The fact that petitioner was the Senior Clerk of the Bank during November, 1991 and PW1 was the Manager and PW2 and PW3 were the Senior Assistants of the bank during that period was not disputed. The procedure for withdrawal of the amount in the account of the account holder was disclosed by Pws 1 and 2. There was no dispute on the procedure spoken to by them. The learned Magistrate and learned Sessions Judge appreciated the evidence of Pws 1 to 3 on that aspect and found that it is for the petitioner to obtain the withdrawal slips from the Senior Assistant in the morning and thereafter issue them to the respective account holders and get their signature and thereafter sent them to PW2, who, in turn has verify the account and signature and thereafter forward it to Scrolling Officer who has to pay the amount. The learned counsel argued that there is no conclusive evidence to prove the handwriting and the signature of the petitioner in Ext.P3 and P3(a). As rightly found by the courts below evidence of Pws 1 to 3 establish that they are acquainted with the handwriting and signature of the petitioner. The evidence of Pws 1 to 3 that they could identify the handwriting and signature of the petitioner and the disputed handwriting and signatures seen in Crl.R.P.No.1335 of 2002 6 Ext.P3 and P3(a) are that of the petitioner was not shown to be unreliable, in cross examination. In addition learned Chief Judicial Magistrate compared the handwriting and signature seen in Ext.P3 and P3(a) with Ext.P4 withdrawal slip of the petitioner, in his admitted account and found that they are all similar. On going through the evidence, I find no reason to differ from the findings of the courts below that the handwriting and signatures seen in Ext.P3 and P3(a) are that of the petitioner. The evidence of PW2 that petitioner has to sent the withdrawal slip to PW2 and it is for PW2 to verify the account and signature and thereafter sent to the Scrolling Officer with the endorsement was not challenged in cross examination. So also, the evidence of PW2 that she was on duty on 9.11.1991 and 19.11.91 was not challenged. The evidence of PW2 that Ext.P3 and P3(a) were not sent by the petitioner to her and it do not contain her signature and she had not verified the account and found it correct was also not challenged. The evidence of PW3 and 9 establish that when PW3 was not there, it was for PW9 through whom the withdrawal slip should pass and he did not see Ext.P3 and P3(a) and they contain the Crl.R.P.No.1335 of 2002 7 signature of the petitioner was also not challenged. In the light of the evidence, I find absolutely no illegality or irregularity in the finding of the courts below that petitioner committed the offences punishable under Sections 408, 468 and 471 of Indian Penal Code. Then the only question is regarding sentence. Though learned counsel argued that the amount misappropriated is only Rs.20,000/- and petitioner has lost his employment and the incident occurred on 1991 and therefore, leniency is to be shown, I do not find that the Clerk of the Bank who fabricated withdrawal slips and misappropriated the amount deserves any leniency. The sentence awarded is legal and proper. In such circumstances, the revision fails and it is dismissed. The petitioner is directed to appear before the Chief Judicial Magistrate, Kottayam on 18.8.2010. The Chief Judicial Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE pm