THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NOS. 524,534 AND 546 OF 2003. DATED: 09-12-2009. CRIMINAL APPEAL NO. 524 OF 2003. Between: C.H.Peddanna … Appellant/A2 and State rep. By C.B.I. Visakhapatnam … Respondent/Complainant. CRIMINAL APPEAL NO. 534 OF 2003. Between: C.H.Koteswari … Appellant/A3 and State rep. By C.B.I. Visakhapatnam … Respondent/Complainant. CRIMINAL APPEAL NO. 546 OF 2003. Between: C.H.Srinivasa Rao … Appellant/A1 and State rep. By C.B.I. Visakhapatnam … Respondent/Complainant. THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NOS. 524, 534 AND 546 OF 2003. COMMON JUDGMENT: Since these appeals arise out of same judgment, they are being taken up together and disposed of by way of this common judgment. 2. Criminal Appeal No.524 of 2003 by the appellant-A2, Criminal Appeal No.534 of 2003 by the appellant-A3 and Criminal Appeal No.546 of 2003 by the appellant-A1 under Section 374 (2) Cr.P.C. are directed against the judgment, dated 21-05-2003, in C.C. No. 1 of 1998, on the file of the Special Judge for CBI Cases, Visakhapatnam, whereunder and whereby A1 was convicted of the charge under Section 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’) and sentenced to undergo Simple Imprisonment for a period of three years and also to pay a fine of Rs.5,000/-, in default to undergo Simple Imprisonment for a period of one month, further convicted of the charges under Sections 120-B, 420, 467, 468, 465 and 471 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to undergo Simple Imprisonment for two years under each count, A2 was convicted of the charges under Sections 120-B, 420, 467, 468, 465 and 471 IPC and sentenced to undergo Simple Imprisonment for two years under each count and also pay a fine of Rs.5,000/-, in default to undergo Simple Imprisonment for one moth for the offence punishable under Section 420 IPC and A3 was convicted of the charges under Sections 120-B, 420, 467, 468, 465 and 471 IPC and sentenced to undergo Simple Imprisonment for one year under each count and also to pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for one moth for the offence punishable under Section 420 IPC and all the sentences were directed to run concurrently. 2. Brief facts, that are necessary for disposal of the present Criminal Appeals, may be stated as follows: On 20-09-1995, A1 handed over one blank cheque books (Ex.P10) bearing No.774421 to 774430 to P.W.3 representative of P.W.2 account holder of S.B.A/c No.1751 by removing one cheques leaf No.774430 (Ex.P6) without the knowledge of P.W.3. A2 filled the cheques for drawal of Rs.47,000/- in the name of one B.V.Rambabu and A3 forged the signature of P.W.2 the actual account holder. A2 presented the said cheques at Andhra Bank, Medical College Branch, Guntur on 28-09-1995 along with P.W.12 who is taken as an approver. A1 who worked as cashier on that day dishonestly and fraudulently handed over a sum of Rs.47,000/- to A2 knowing fully well that A2 is his cousin and is not B.V.Rambabu. On 29-09-1995, A1 handed over one blank cheque book bearing No.438401 to 438450 to P.W.6 representative of P.W.18, Vice Principal, Guntur Medical College and account holder of S.B.A/c No.173 by removing one blank cheque leaf bearing No.438449 (Ex.P7) without the knowledge of P.W.14 who is taken as an approver to fill up the blank cheque for withdrawal of Rs.1,47,000/- and A1 forged the signature of P.W.18, the actual account holder. A1 prepared one counterfeit rubber stamp of Principal, Guntur Medical College and put its impression on the said cheque and the said forged cheque was fraudulently withdrawn by A1 by signing as one P.V.Chowdari from A/c No.173. It is alleged that originally the local police of Nagarampalem in Guntur registered a case against the accused and after conducting part of the investigation, obtained permission from the Magistrate to handover the investigation to C.B.I. As per the directions of the Superintendent of Police, P.W.19-Inspector of Police, C.B.I. registered a case and issued Ex.P32 FIR. P.W.19 collected documents from Andhra Bank, Guntur Medical College Branch under Ex.P20, seized Xerox copies of two cheques. He examined P.Ws. 1 to 12, 14 and 18 and other witnesses and recorded their statements. He collected specimen signatures of A2, P.Ws. 14 and 18 and obtained expert opinion on the same. On the requisition of P.W.19, III Metropolitan Magistrate, Visakhapatnam recorded the statements of A2, P.Ws. 12 and 14. P.W.19 obtained Ex.P23 sanction order for prosecuting A1. During the investigation, P.W.19 filed petition before the concerned Magistrate for grant of pardon to P.Ws. 12 and 14 as they wanted them to be cited as witnesses. As per the orders of the Magistrate, the statements of P.Ws. 12 and 14 under Section 164 Cr.P.C. were again recorded by the Magistrate and tendered pardon to P.Ws. 12 and 14. After completion of investigation, P.W.19 filed the charge sheet. 3. The learned Special Judge framed the following charges against the accused: CHARGE NO.1: That you A1 to A3 during the month of September, 1995 at Andhra Bank, Medical College Branch, Guntur, while A1 of you functioning as Clerk-cum-Cashier of Andhra Bank, Medical College Branch, Guntur, you A2 cousin of A1 and you A3 sister of A1agreed to do an act viz., to cheat the Andhra Bank , Medical College Branch, Guntur by illegal means and to withdraw the amounts of the account holders without their knowledge and to achieve your object; (i) that you A1 on 20-09-995 have handed over one blank cheque book bearing No.774421 to 774430to K.V.Rambabu, representative of Ch.Nagalakshmi Kumari, account holder of S.B. A/cNo.1751, by removing one blank cheque leaf No.774430 without the knowledge of K.V.Rambabu, that you A2 filled the cheque for withdrawalofRs.47,000/-in the name of one B.V.Ramababu, that you A3 forged the signature of Ch.Nagalakshmi Kumari, the actual account holder of S.B. A/c No.1751, that youA2 presented the said cheque at Andhra Bank, Medical College Branch, Guntur on 28-09-1995 along with one Y.Venkateswar Reddy,that you A1 worked as Cashier on that day by dishonestly and fraudulently handed over a sum of Rs.47,000/-to A2 of you, knowing fully well that A2 of you is your cousin and is not B.V.Ramababu and thus you A1toA3 misappropriated an amount of Rs.47,000/-. (ii) That you A1 on 29-09-1995 have handed over one blank cheque book bearing No.438401 to 438450 to ChNageswara Rao, representative of Siva Rama Prasad,Vice Principal, Guntur Medical College and account holder of S.B. A/ no.173, by removing one blank cheque leaf bearingNo.438449 without the knowledge of Ch. Nageswara Rao that you A1 directed Ch.Venkateswara Rao to fill up the blank cheque for withdrawal of Rs.1,47,000/-and that you A1 forged the signature of N.Siva Rama Prasad, the actual account holder, that you A1 prepared one counterfeit rubber stamp of Principal, Guntur Medical College and put its impression on the said cheque and the said forged cheque was fraudulently withdrawn by you A1by signing as one P.V.Chowdari from the A/c No.173. Thus A1 to A3 of you thereby committed an offence punishable under Section120-B IPC. CHARGE NO.2: That you A1 to A3 during the same period and place as mentioned in charge No.1 supra, cheated Andhra Bank, Medical College Branch, Guntur that you A1 dishonestly and fraudulently removed the blank cheque leave Nos. 774430 in respect of S.B. Account holder Ch. Nagalakshmi Kumari and No.438449 in respect of N.Siva Ram Prasad, S.B. Account Holder No.173,without their knowledge and you A2 wrote the particulars in the cheque leaf No.774430 for withdrawal of Rs.47,000/-that youA3 forged the signature of the said Ch.Nagalakshmi Kumari and that you A1 forged the signatures of the account holder by name N.Siva Ramprasad, the particulars of which are mentioned in charge No.1 above and thus A1 to A3 of you thereby committed an offence punishable under Section 420 IPC. CHARGE NO.3: That you A1 during the same period and the same place as mentioned in Charge No.1 supra, forged the signature of N.Siva Ramprasad who is the account holder of S.B.A/c No.173, in the cheque bearing No.438449, which was removed from the cheque book bearing Nos.438401 to 438450 with intent to use the same for withdrawing the amount of Rs.1,47,000/- and that you thereby committed an offence punishable under Section 467 IPC. CHARGE NO.4: That you A3 during the same period and the same place as mentioned in Charge No.1 supra, forged the signature of Ch.Nagalakshmi Kumari, who is the account holder of S.B.A/c No.1751 in the cheque bearing No.774430, which was removed from the cheque book bearing Nos.774421 to 774430 with intent to use the same for withdrawing the amount of Rs.47,000/- and that you thereby committed an offence punishable under Section 467 IPC. CHARGE NO.5: That you A1 to A3 during the same period and the same place as mentioned in Charge No.1 supra, forged the signature of N.Siva Ramprasad who is the account holder of S.B.A/c No.173 and A3 forged the signature of Ch.Nagalakshmi Kumari, who is the account holder of S.B.A/c No.1751 and that you A2 filled the particulars in the cheque bearing No.774430 in respect of S.B. A/c No.1751 for the withdrawal of Rs.47,000/- intending that the forged two cheques shall be used for the purpose of cheating the Andhra Bank, Medical College Branch, Guntur, the particulars of which are mentioned in charge No.1 above and thus A1 to A3 of you thereby committed an offence punishable under Section 468 IPC. CHARGE NO.6: That you A1 to A3 during the same period and the same place as mentioned in Charge No.1 supra, fraudulently used the forged two cheques bearing Nos.774430 in respect of Ch.Nagalakshmi Kumari, who is the account holder of S.B.A/c No.1751 and the cheque No.438449 in respect of N.Siva Ramprasad who is the account holder of S.B.A/c No.173, as genuine and withdrawn the amount of Rs.47,000/- from S.B. A/c No.1751 and Rs.1,47,000/- from S.B.A/c No.173, the particulars of which are mentioned in charge No.1 supra , which all of you knew at the time of all of you used the said two cheques to be the forged cheques, and thus youA1 to A3 committed the offences punishable under Sections 465 and 471 IPC. CHARGE NO.7: That you A1 being a public servant employed as Clerk-cum-Cashier of Andhra Bank, Medical College branch, Guntur, during the month of September, 1998 by corrupt or illegal means or by otherwise abusing your position as such public servant obtained for yourself pecuniary advantage to the extent of Rs.1,94,000/- by cheating the Andhra Bank, Medical College Branch, Guntur, the particulars of which are mentioned in charge No.1 supra, and you thereby committed an offence punishable under Section 13(1)(d) r/w 3 (2) of the P.C. Act, 1988. When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 20 and got marked Exs.P1 to P40. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. No oral evidence was adduced on behalf of the accused except marking Exs.D1 to D31. 6. The trial Court upon consideration of entire oral and documentary evidence available on record, convicted and sentenced the accused as above. Challenging the same, A1 to A3 preferred these appeals. 7. Now the point that arises for consideration is whether the prosecution proved its case against the accused of the offences with which they were charged beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 8. Mr.T.Bali Reddy, learned senior counsel appearing for A1 contended that absolutely, there is no evidence to show that the cheque books in question of the two account holders were given by A1, that it is the duty of P.W.5 who has to handover the cheque books to Savings Bank account holders, that mere writing of entries in Exs.P2 (A) and P4 (A) does not amount to actual delivery of cheques to P.Ws.3 and 6, that even assuming for a moment that those two cheque books were handed over to the account holders, there is no evidence to show that one leaf from each book has been taken away by A1 and made use of the same for withdrawing certain amounts from accounts of two account holders, that there is no evidence to show that A1 committed forgery for the purpose of cheating, that as an employee of the bank, he gave cash covered under Exs.P6 and P7 as the two cheques were ordered to be paid by P.W.5 after thorough verification, that the alleged handwritings in Exs.P2 (A) and P4 (A) have not been sent to the expert for comparison with the admitted handwritings of A1, that A1 is denying about the handwritings in the original of Exs.P2 (A) and P4 (A) , that even in case of Ex.P6, he has not given the cash to the account holder and P.W.3 gave the cash covered under Ex.P6, that except the solitary testimony of accomplice P.Ws. 12 and 14, there is no other evidence to connect him with the offences for which he was charged, that the evidence of P.Ws. 12 and 14 is required to be corroborated on material particulars as they are accomplice witnesses and there is no such evidence available on record and hence, he prays to set aside the convictions and sentences recorded against A1. 9. Mr.C.Padmanabha Reddy, learned senior counsel appearing for A2 and A3 contended that there is no evidence to show that A2 and A3 committed forgery on the cheques or encashed Exs.P6 and P7 cheques by presenting in the bank, that the evidence of P.Ws. 12 and 14 who are accomplice has not been corroborated with any other evidence and hence, he prays to set aside the convictions and sentences recorded against A2 and A3. 10. On the other hand Mr.T.Niranjan Reddy, learned standing counsel appearing for CBI cases contended that the evidence of P.Ws. 3 and 6 would clearly go to show that the cheque books have been handed over to them, that there is no scope or possibility for anybody except A1 to remove one cheque leaf each from the two cheque books, that one of the cheques have been passed by A1, that the evidence of P.Ws. 12 and 14 is corroborated with material particulars with reference to the other evidence, that after elaborate consideration of evidence on record, the trial Court rightly convicted and sentenced A1 to A3 and absolutely, there are no grounds to interfere with the same. 11. Essential ingredients of Section 13 (1) (d) of the Act are thus: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 12. Section 120-B IPC prescribes punishment for criminal conspiracy. Necessary ingredients to constitute the offence of Criminal Conspiracy are as follows: “(a) Two or more persons agree to do or cause to be done an act. (b) The act agreed must be- (i)an illegal act or, (ii)an act which is not illegal but is done by illegal means (c) If the agreement is not to commit an offence then some act besides the agreement is- (i) by one or more parties to such agreement (ii) in pursuance of the agreement” 13. Necessary ingredients to constitute the offence of cheating which is defined under Section 415 I.P.C. are: (1) There should be fraudulent or dishonest inducement of a person by deceiving him, (2) (a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and (3) in cases covered by (2)(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 14. Section 465 prescribes punishment for forgery. What is forgery is defined under Section 463 I.P.C., which reads as follows: (a) A person makes any false document or part of a document. (b) His intention is- (i) to cause damage or injury to the public or to any person, or (ii) to support any claim or title, or (iii) to cause any person to part with property, or (iv) to enter into any express or implied contract, or (v) to commit any fraud or that fraud may be committed. 15. Under Section 467 IPC, whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or to deliver any money, movable property, or valuable security or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life or which imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. 16. Under Section 471 IPC, whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, he shall be punishable. 17. It is not in dispute that A1 was working as Cashier-cum- Clerk at the relevant point of time of the incident at Andhra Bank Branch, Medical College, Guntur. At that time P.W.5 was officiating Branch Manager of that Branch. It is also not in dispute that Principal, Guntur Medical College is the S.B.A/c holder bearing No.173. It is also not in dispute that P.W.2 is the S.B.A/c holder bearing No.1751. By virtue of Ex.P6, an amount of Rs.47,000/- was withdrawn on 28-09-1995. Similarly, by virtue of Ex.P7, an amount of Rs.1,47,000/- was withdrawn from the bank on 04-10-1995. The allegation is that both the cheques have been forged by the accused by making a conspiracy to cheat the bank and to gain unlawfully. It is also not in dispute that P.W.5 who was the officiating Manager passed these two cheques in question after due verification with reference to the admitted signatures available with the bank. It is also not in dispute that P.W.5 verified the presentation of Exs.P6 and P7 with specimen signatures or handwritings. She did not entertain any suspicion and passed two cheques for payment believing them to be true. It is also not in dispute that A1 has paid the cash for token No.19 on 28-09-1995. With regard to Ex.P7, he did not commit any procedural irregularity. As a Cashier, he has to pay the cash on production of token of its bearer. P.W.5 admitted that on 04-10-1995 A1 did not violate any procedural aspects with regard to receipt of the cheques and issuing token to the bearer of the cheques. She followed the manual of instructions in passing the cheques by verification of the signatures on the instructions with the specimens and in issuance of cheque books even without minor deviation. 18. Though P.Ws. 3 and 6 stated that they received respective cheque books from the accused, the same was denied by A1. A specific suggestion was put to these witnesses that A1 did not issue the cheque books after receipt of requisition from them. Though P.Ws. 4 and 5 stated that some of the writings in Exs.P2 (A) and P4(A) which are the Xerox copies of the cheque issuance register contain the signatures of A1, a perusal of those exhibits do not indicate that cheque books were physically handed over to P.Ws. 3 and 6 by A1. The evidence of P.W.1 who is the Branch Manager after this incident would clearly go to show that whenever a customer comes to the bank personally or his nominee for issuance of the cheque book, they used to issue the cheque books to the nominee or customer as the case may be. Therefore, his evidence would go to show that the cheque books would be in the custody of the Branch Manager. In case there is no Branch Manager, the cheque books must be in the custody of Officiating Branch Manager and the concerned Branch Manager would issue personally the cheque books to the customer. It is not in dispute that during the relevant point of time of the incident, P.W.5 was the officiating Branch Manager of the branch. Though P.Ws. 3 and 6 stated that A1 issued the cheque books, their evidence do not indicate that at the time of receiving of cheque books, some of the leaves were taken away by A1. As seen from the evidence, the branch is very small one and all the staff members sit in the room consisting of 10 x 20 feet except small partition encircled to accommodate the Cashier-cum-clerk. 19. The allegation is that A1 removed one cheque each from the two cheque books of the account holders and forged the signatures with the assistance of other accused and caused loss to the bank. Even assuming for a moment that A1 issued cheque books to P.Ws. 3 and 6, he would have gone to the officiating Manager, took the books and handed over the same to P.Ws. 3 and 6 respectively from his seat. If anything done in the room, it would be visible to P.Ws. 3 and 6 with regard to tampering of any cheque leaves in the two books. It is not the case of P.Ws. 3 and 6 that after taking the books from P.W.5, he went to the room which is not visible to them and thereby inferring that one cheque each from the each book was taken away by A1 alone. Similarly, there is no evidence to show that A1 forged the signatures or the contents of Exs.P6 and P7. The disputed signatures on Exs.P6 and P7 and the disputed handwritings on these two cheques were not shown to be that of any one of the accused. As a matter of fact when the specimen signatures of the accused were taken and sent to P.W.20-Expert for comparison along with the admitted signatures of the accused, P.W.20 categorically stated that it was not possible to fix the authorship of the signatures in Exs.P6 and P7 for comparison with the standard writings of S.1 to S.58 and the admitted signatures marked as Q1 and Q2. There is no evidence to show that these cheques were presented any one of the accused in the bank and the cash was received by any one of them without paying to the token holder. 20. The only evidence available on record against all the accused is the evidence of P.Ws. 12 and 14. They can be termed a s Particeps Criminis because in their presence alleged forgery has been committed and as a matter of fact, they received certain amounts after encashing those two disputed cheques allegedly by the accused. Their evidence also would go to show that in September, 1995 on one day when P.W.12 went to the house of A1, he saw A1 and A3 writing and tallying signatures on white papers with reference to a slip and when he asked them, A1 replied that he would disclose later. Similarly they were referring to the slip of model written by A3 on a white paper. He heard from their conversation that the name written on the cheque was Vijayalakshmi Kumari. He identified Ex.P6 as that of forged by A1 and A3. Similarly, on the next day morning,