* HON’BLE SRI JUSTICE B.N.RAO NALLA + Criminal Appeal No.466 of 2004 % Date: 12.10.2011 B e t w e e n: # K. Murali s/o. N.Krishna Murthy Appellant/Accused A n d $ The State of A.P., rep. by its Special P.P. for C.B.I. Cases, Hyderabad. Respondent/Complainant ! Counsel for the Appellant: Sri C.Kodanda Ram ^ Counsel for the Respondent. : Sri P.Kesava Rao, Special Standing Counsel for CBI < GIST : > HEAD NOTE : ? Cases referred : [1] (1996) 10 S.C.C. 193 2 (1979)1 S.C.C. 535 3 (1990) 3 SCC 325 4 2009(6) SCC 77 5 (2009) 8 S.C.C. 617 6 (1979) 1 SCC 560 HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No. 466 OF 2004 JUDGMENT: This Criminal Appeal is filed by the appellant - A-1, who was tried along with A-2 and A-3 by the Court of Special Judge for CBI Cases, Hyderabad in C.C. No.13 of 1999, aggrieved by the judgment dated 25.2.2003 whereby and where under he was found guilty for the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short, PC Act) and convicted for the said offence and sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 2,000/- in default of payment of fine to suffer simple imprisonment for three months, on the grounds, inter alia, that the trial Court failed to appreciate the evidence of prosecution witnesses and also other material on record in proper perspective, and thereby came to a wrong conclusion in finding him guilty for the aforesaid offence. However, the trial court found A-1 to A-3 not guilty of the offences under Section 120-B, A-2 not guilty of the offences under Sections 420 and 468 IPC and A-3 not guilty of the offences under Sections 418 and 420 IPC, acquitted them therefor. 2. The facts of the case in brief are:- (a) The appellant-A1 worked as Branch Manager of State Bank of Mysore, Mahindra Hills Branch, Secunderabad, (hereinafter referred to as “Bank”) between July 1994 and October 1996. A-2 and A-3 were partners of M/s Voyager Travel Concepts and Directors of M/s Voyager Travel Concepts Private Limited, Minerva Complex, Secunderbad. A-1 to A-3 had conspired to cheat the said bank by committing illegal acts of debiting bank local clearing account instead of party’s account for the cheques pertaining to the above firms, and permitting clean overdraft to the two firms without any sanction limits, for a total amount of Rs.10,81,000/-. The illegal acts on the part of appellant -A1, in furtherance of the said conspiracy, caused a wrongful loss to the Bank and a corresponding pecuniary gain to A-2 and A-3. A-2 had also indulged in forging the signature of one Mr.G.Charles on the Account Opening Form and cheques. (b) PW.9-Assistant General Manager, Vigilance, of the said Bank preferred Ex.P.41- complaint on 31.01.1997 before the Superintendent of Police, CBI, Kendriya Sadan, Hyderabad. The Superintendent of Police referred the said complaint to Deputy Superintendent of Police, CBI, Hyderabad, who, after verifying the contents of the said complaint, registered a case in Crime No.RC.06(A)/97-Hyd on 21.04.1997 and issued Ex.P.49-FIR, and entrusted the matter to PW.16-Inspector of Police, CBI, Hyderabad, for investigation. PW.16-Inspector of Police, after investigating the matter, laid charge sheet into the Court of Special Judge for CBI Cases, Hyderabad, on 08.03.1999 against A-1 to A-3 under Sections 120(B), 420, 418, 468 IPC and Section 13(1)(d) read with Section 13(2) of the PC Act. The said Court had framed the following charges against A-1 to A-3: “CHARGE No.1: That A-1 and A-2 of you while working as Branch Manager of State Bank of Mysore, Mahendrahills branch, Secunderabad and partner of M/s.Voyager Travel Concepts and Director of M/s.Voyager Travel Concepts Private Ltd., situated at Minerwa Complex, Secunderabad respectively have entered into a criminal conspiracy during the year 1995 to cheat the State Bank of Mysore, Mahendra Hills branch, Secunderabad in the matter of clearing cheques drawn by A-2 of you totalling Rs.10,81,000/- drawn in favour of M/s.Voyager Travel Concepts, Minerwa Complex, Secunderabad and thereby committed an offence punishable U/S.120-B IPC and within my cognizance. CHARGE No.2: That A-2 of you had submitted forgery cheques, Account Opening Form & Specimen signatures of M/s. Voyager Travel Concepts and M/s.Voyager Travel Concepts Private Ltd., for a total sum of Rs.10,81,000/- during the year 1995 through State Bank of Mysore, Mehndra Hills Branch, Secunderabad in the above said two firms, which resulted in a total loss of Rs.10,81,000/- causing wrongful loss to the Bank and thereby committed an offence punishable U/S 420 IPC and within my cognizance. CHARGE No.3: That A-2 of you signed as G.Charles on the Account opening form by forging the signature of Sri G.Charles and you also forged the signatures of G.Charles of Specimen signatures of M/s. Voyager Travel Concepts and M/s. Voyager Travel Concepts Pvt. Ltd., on the cheques issued by the said Firms and thereby committed an offence punishable U/S. 468 IPC and within my cognizance. CHARGE No.4: That A-1 of you while working as Branch Manager of State Bank of Mysore, Mahendra Hills Branch, Secunderabad, during the period from July,1994 to October,1996, committed criminal misconduct by abusing your position as a public servant and you permitted temporary over draft in the account of M/s.Voyager Travel Concepts to accommodate the party without any sanction limits, you instead of returning the cheques where the insufficient funds are there, showed undue official favour and deliberately debited cheques to the Bank Local Clearing Account for a total amount of Rs.10,81,000/- by raising consolidated vouchers and you caused pecuniary advantage to yourself and also A-2 and thereby committed an offence punishable U/S.13(2) r/w 13(1)(d) of P.C.Act, 1988 and within my cognizance.” 3. When the charges were read over and explained to the appellant – A-1, A2 and A3, they pleaded not guilty and claimed to be tried. 4. The prosecution, in support of its case, examined PWs.1 to 17 and got marked Exs.P1 to P50, whereas no witnesses were examined and no document was marked on behalf of the defence. 5. Taking into consideration the evidence of prosecution witnesses and other material on record, the trial Court came to the conclusion that the prosecution had failed to prove the charges of criminal conspiracy, cheating and forgery against A-1 to A-3 and accordingly acquitted them of those charges, but the prosecution had proved the guilt of A1 for the offence under Section 13(1) (d) read with Section 13(2) of PC Act, and accordingly convicted and sentenced him by imposing rigorous imprisonment for one year and to pay fine of Rs.2,000/-, in default to undergo simple imprisonment for three months. The trial Court had also recorded that the said sentence of imprisonment shall run concurrently with the sentence of imprisonment imposed on the appellant – A-1 in C.C. No.8 of 1999 and C.C. No.12 of 1999 which were already disposed of. 6. The appellant – A-1 has filed three appeals challenging the impugned orders passed by the trial Court in C.C. No.8 of 1999, C.C.No.12 of 1999 and C.C. No.13 of 1999. The Criminal Appeal No.12 of 2004 is filed challenging the orders passed in C.C.No.8 of 1999, Criminal Appeal No.11 of 2004 is filed challenging the orders passed in C.C.No.12 of 1999 and the present Criminal Appeal No.466 of 2004 is filed against the orders passed in C.C.No.13 of 1999. 7. The prosecution laid the evidence on the lines of whether the appellant-A1 had resorted to extending accommodation and/or pecuniary advantage to A-2 and A-3. 8. It is not in dispute that the evidence of all the witnesses, more or less, is to the effect that the appellant – A-1, in fact, extended such benefit to A-2 and A-3, in violation of the banking norms. 9. It is the case of the appellant - A-1 that the alleged extending of ‘benefit’ to A-2 and A-3 is incorrect. It is stated that it would be proper to say that the appellant - A1 had extended the ‘facility’ to the companies and/or the firms that were represented by A-2 and A-3. The banking business procedure as well as the banking rules and regulations provide for extending such a facility to the customers i.e. account holders, provided it is not in violation of the banking rules and regulations; and further provided that it is in the interest of the bank. In such circumstances, it may not be proper to attribute bad intention, which is an element of criminal act, to the persons acting on behalf of the Bank. It is also not proper to allege misuse of power when their actions cannot be said to be pre-meditated ones. The Bank officials always act in the interest and in furtherance of the bank’s business. Sometimes their bona fide actions may appear to be mala fide ones because of the circumstances and status of the customers in whose favour certain facilities are provided. Perhaps, keeping the above circumstances in mind and also having regard to the fact that such criminal element was absent in the actions of the appellant-A1, he was acquitted of the charge under Section 120-B read with Section 420 of IPC. Therefore, attributing criminal element o f mens rea to the appellant-A1 may not be proper. Though the actions on the part of the appellant-A1 may have resulted in any benefit to A-2 and A-3, the appellant-A1 cannot be presumed to have such a criminal intention in accommodating A-2 and A-3 and that too, when he himself has not gained any monetary benefit. 10. The acts of appellant-A1 cannot be said to be covered under any of the ingredients mentioned under Section 13(1)(d) read with Section 13(2) of the PC Act, since none of his actions resulted in any facility or benefit to himself, and there is nothing in the evidence of any of the prosecution witnesses that the appellant - A-1 had received any pecuniary advantage to himself. Even the Investigating Officer went a step ahead and clearly stated in his cross-examination that his investigation did not disclose any pecuniary benefit derived by the appellant-A-1. Therefore, it is contended that when the bona fide act on the part of Bank officials resulted in some advantage to their customers, it cannot be said that the actions of the bank officials are coloured with criminal intention. No doubt the appellant - A-1 had extended the facility in the nature of overdraft that benefited the customers, but it did not cause any benefit to him and he did not expect any such benefit to himself while extending such facility to the Bank customers like A-2 and A-3. Therefore, he cannot be said to have come under any of the provisions under Section 13(1)(d) of the PC Act. All the instances spoken to by the prosecution witnesses did benefit A-2 and A-3 and none of them benefited the appellant –A-1. Therefore, it is contended that the action of the appellant – A-1 in all the instances is bona fide and not mala fide, since he had given top priority to the interest of the Bank and improving the business thereof. It is contended that the appellant - A-1 had allowed the overdraft facility for the account in which the cheques were deposited. However, when these cheques were returned for want of funds, his action in debiting Bank local clearing account instead of party’s account may have been done to cover up the irregularity committed in extending the overdraft facility which was done in good faith and in keeping up the banker-customer relationship, and also with an intention of improving the Bank’s business. Therefore, the very action of the appellant – A-1 in extending the facility of overdraft cannot be said to be a criminal misconduct since there is no evidence to that effect and as such he, along with other accused, was acquitted of the charge under Section 120-B read with Section 420 IPC. 11. The transactions, per se, alleged to have been taken place in this case whereby the Bank has extended overdraft facility to its customers, of course, is in violation of the banking circulars and regulations and that all the prosecution witnesses have spoken to the same, however, there was no dishonest intention and/or criminal misconduct on the part of the appellant – A-1 in extending such facility to the Bank’s customers. That none of the prosecution witnesses has spoken to the same except referring to specific instances of sending cheques for collection and receiving them back unpaid and preparing debit vouchers at the instance of the appellant – A-1. Therefore, it is contended that the appellant – A-1 had neither dishonest intention nor had committed any criminal misconduct and the prosecution has failed to prove the same. All the acts that are allegedly done by the appellant – A-1 were done during the course of banking business and that too in relation to and / or in favour of its customers and that A-2 and A-3 were happened to be customers of the bank at the relevant time. Therefore, in good faith and with the intention of improving the business of his branch of the Bank, appellant – A-1 had allowed the overdraft facility to A-2 and A-3 as spoken to by the prosecution witnesses. It is also brought on record that the appellant – A-1 was posted as Manager of the Branch concerned for the purpose of improving its business. It is contended that in such circumstances appellant – A-1 has extended such benefits in favour of A-2 and A-3 with a good object of maintaining the banker – customer relationship and also to improve the Bank’s business. In the process of carrying on the banking transactions, appellant – A-1 being the Branch Manager may have exceeded his limits and could have failed to judge things in proper perspective and that his judgment could have been wrong though he was prudent enough. It seems that he was carried away by the financial status of M/s. Voyager Travel Concepts. There is no allegation of personal benefit against the appellant – A-1. None of the witnesses have spoken to the same. His character is also not at stake and none of the witnesses have spoken about it. Moreover, the trial Court has given a clear finding that all the transactions did not result in personal gain and/or benefit of the appellant – A-1. It is contended that while maintaining banker – customer relationship and when the banker extends overdraft facility, corresponding obligation is caused on its customer to repay the same. Therefore, it cannot be said that in such transactions, the Bank officials have dishonest intention and the same results in criminal misconduct so as to bring them under the purview of the provisions of Section 13(1)(d) of PC Act. That during the course of the banking transactions, the Bank officials may act in violation of the banking instructions and/or rules and the same may amounts to irregularities and the said irregularity may in turn result in financial loss to the Bank to some extent. However, they cannot be said to have acted with dishonest intention and their actions cannot be termed as criminal misconduct. 12. In support of his contentions, the learned senior counsel for the appellant - A-1 relied on the decisions of the Hon’ble Supreme Court in C. CHENGA REDDY AND OTHERS v. STATE OF A.P[1], S.P. BHATNAGAR v. STATE OF MAHARASHTRA[2], 3STATE (DELHI ADMINISTRATION) v. N.S. GIANI AND OTHERS[3], S.V.L. MURTHY v. STATE, REP. BY CBI, HYDERABAD[4], and STATE OF MADHYA PRADESH Vs. SHEETLA SAHAI & OTHERS[5]. It has been observed in the decision of the Hon’ble Supreme Court in Chenga Reddy’s Case (Supra 1), referring to the decision of the Hon’ble Supreme Court in ABDULLA MOHD. PAGARKAR v. STATE (UNION TERRITORY OF GOA, DAMAN AND DIU) [(1980) 3 SCC 110], that mere disregard to relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of Government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. That the other decisions referred to hereinabove deal with circumstantial evidence, as per which, the guilt of the accused should not be compatible with his innocence. Therefore, the authorities relied on are to the effect that in the circumstances of the case, the actions cannot be said to be conclusive so as to come to the irresistible conclusion of the guilt of the accused. 13. On the other hand, it is the case of the prosecution that Exs.P.1 to P.3 are transfer credit vouchers dated 19.9.1995 for Rs.5,10,000/- and as per the evidence of PW.1, Exs.P-1 to P- 3 were prepared by him for outward clearing and sent for collection, however, they were returned for insufficiency of funds ; that as per the instructions of the appellant – A-1, the said cheques were represented 3 or 4 times, but they were returned unpaid on all the occasions; that by then M/s. Voyager Travels Concepts had already availed the amount under Exs.P.1 to P.3. However, in the cross examination of PW.1, when a suggestion appears to have been put as to the overdraft facility in favour of M/s. Voyager Travels Concepts, he stated that he was not aware of the same. In this context, it is contended that the case of the appellant – A-1 that he had extended the facility of availing overdraft having regard to the Bank customer relationship and also in view of augmenting the business of the bank cannot be accepted. The evidence of PWs 2 to 15 is, more or less, to the same effect. That the cheques on behalf of M/s.Voyager Travels Concepts were deposited; that when sent for collection, they were returned unpaid; that at the behest of appellant – A-1, debit vouchers were prepared and that A-2 and A-3 were allowed to avail the amount covered under the said cheques. The modus operandi adopted by the appellant – A-1 was against the banking procedure and regulations. That the appellant – A-1 did so suppressing the power vested in him in sanctioning and/or clearing overdraft facility up to Rs.10,000/-, in which case, he had to seek post-facto confirmation from his superiors which he did not avail. That the appellant - A-1 has caused wrongful loss to the Bank to the tune of Rs.10,81,000/-. Therefore, it is contended that the appellant - A-1 had, with dishonest intention of causing corresponding wrongful loss to the Bank, extended pecuniary benefit to A-2 and A-3 which squarely fell into the provisions of Section 13(1)(d) of PC Act as the same amounted to criminal misconduct, under which three ingredients are sine qua non viz. namely (1) the accused should hold office as public servant, (2) the accused should obtain any valuable thing or pecuniary advantage for himself or for any other person, and (3) such obtaining valuable thing or pecuniary advantage is not in the public interest. To put it in nutshell, the case of the prosecution is that the appellant-A1 being the branch manager of Bank, had misused his official position and power in permitting temporary overdraft facility to M/s. Voyager Travels Concepts and deliberately debited the cheques to the local clearing account instead of returning the cheques to the party duly informing that the said cheques were bounced for want of sufficient funds; that the appellant – A-1 had accommodated the said firm to have such over draft facility without having any power or authority to do so. It is contended that the action of the appellant – A-1 in allowing temporary overdraft facility in favour of A-2 and A-3 in disregard to his powers to do so, clearly come under Section 13(1)(d) of the PC Act and thereby his criminal misconduct stands proved and in fact, was proved before the trial court; that the trial court had on proper appreciation and evaluation of the evidence of prosecution witnesses and other material on record, had given finding to that effect and as such it does not warrant interference from this appellate court. Hence, the appeal may be dismissed. 14. In support of the case of the prosecution, the Special Standing Counsel for CBI relied on the decisions of the Hon’ble Supreme Court in C. Chenga Reddy’s Case (Supra 1), JAGIR SINGH v. RANBIR SINGH AND ANOTHER[6]. 15. This Court gave its earnest consideration to the submissions made by Sri Kodandaram, learned senior counsel appearing for the appellant – A-1, and Sri C. Kesava Ra learned Special Standing Counsel for CBI, perused the impugned judgment and other material o record. 16. Considering the rival contentions, now the points that arise for consideration are: 1. Whether extending temporary overdraft facility to A-2 and A-3 to a tune Rs.10,81,000/- without there being sufficient funds in their account by the appellant - 1 is in violation of the regulations issued by the Reserve Bank of India from time to tim and also the rules, circulars and procedures of the Bank? 2. Whether the action of the appellant - A-1 in extending temporary overdraft facility to 2 and A-3 amounts to criminal misconduct? 3. Whether the action of the appellant - A-1 in extending temporary overdraft facility favour of A-2 and A-3 amounts to causing wrongful gain to them and thereby causin corresponding wrongful loss to the Bank? 4. Whether such action of the appellant - A-1 amounts to illegality or irregularity? 5. Whether the trial court has committed any error, infirmity or illegality in finding th appellant - A-1 guilty of the offence under Section 13(1)(d) read with 13(2) of PC Act? POINTS 1 to 5: 17. The main contention of the prosecution is that the appellant - A-1 by abusing his official position and in collusion with A-2 and A-3 accommodated them (A-2 an A-3) to obtain temporary overdraft facility to a tune of Rs.10,81,000/- by violating the banking norm practice and its regulations and thereby committed the offences of criminal conspiracy, cheating an criminal misconduct. However, the trial Court observing that there is no evidence of any kind for th alleged conspiracy and cheating, found the appellant – A-1, A-2 and A-3 not guilty of the offenc under Section 120-B IPC, A-2 not guilty of the offences under Sections 420 and 468 IPC and A-3 n guilty of the offences under Sections 418 and 420 IPC, but found the appellant - A-1 guilty of th offence under Section 13(1)(d) read with 13(2) of PC Act observing that the very act of providin temporary overdraft facility without taking sufficient security shows his dishonest intention by abusin his official position which amounts to criminal misconduct. Challenging the said conviction an sentence for the charge under Section 13(1)(d) read with 13(2) of PC Act, the appellant – A preferred this appeal. 18. There is no dispute that the appellant – A-1 is a public servant as defined under Sectio 2(c) of PC Act being Branch Manager of the Bank, and A-2 and A-3, who are partners of M/ Voyager Travel Concepts and Directors of M/s. Voyager Travel Concepts Private Limited, situated Minerva Complex, Secunderabad, are its customers. There is also no dispute that A-2 and A approached appellant - A-1 for temporary overdraft facility without furnishing sufficient security an the appellant - A-1 extended temporary overdraft facility to them by surpassing the power vested him. The actual power of the appellant - A-1 in sanctioning and/or clearing overdraft facility is up Rs.10,000/- only, otherwise he is required to seek confirmation from his superiors which he did n avail while extending the temporary overdraft facility to A-2 and A-3. 19. While so, the contention of the prosecution is that appellant - A-1 being Branc Manager of the Bank during July 1994 to October 1996, extended temporary overdraft facility to A and A-3 to a tune of Rs.10,81,000/- for