THE HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.673 of 2002 JUDGMENT: This Criminal Appeal is filed by the appellant - accused under Section 374 (2) of the Code of Criminal Procedure (for short “Cr.P.C.”) against the Judgment dated 18-06-2002 in C.C. No.12 of 2000 passed by the learned Special Judge for C.B.I. Cases, Hyderabad, whereunder and whereby the appellant was convicted of the offences punishable under Sections 409, 420, 468, 471 and 477-A of the Indian Penal Code (for short “IPC”) and under Section 13(2) read with 13 (1) (c) & (d) of the Prevention of Corruption Act, 1988 (for short “the P.C. Act”) and sentenced to undergo rigorous imprisonment for six (6) years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for one (1) year for each of the offences punishable under Sections 409, 420, 468 and 477-A IPC; to undergo rigorous imprisonment for three (3) years and to pay a fine of Rs.3,000/-, in default to undergo simple imprisonment for six (6) months for the offence punishable under Section 471 IPC and to undergo rigorous imprisonment for six (6) years each and to pay a fine of Rs.3,000/- each, in default to suffer simple imprisonment for six months for each of the offence under Sections 13(1) (c) & (d) read with 13 (2) of the P.C. Act. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The accused was working as a Branch Manager in Andhra Bank, Narasingapur Branch, Karimnagar District during 1994-1997. As there was a complaint about mis-management of funds in that branch, PW.1, P.Shashchandra Bose Babu, who worked as a Vigilance Officer in Andhra Bank, Head Office, Hyderabad, at that time, conducted inspection along the staff. Whenever the customers of that Bank used to deposit amounts to the credit of their accounts, the accused used to issue counter foils, with the stamp of the Bank and with his signature and the amount was not credited to the respective accounts of the persons and he used to raise deposit loans without the knowledge of the deposit holders and from the deposits of the customers he used to mis-appropriate the amount for himself and in certain occasions, taking advantage of the innocence of the illiterate borrowers, he used obtain their signatures on blank papers/applications and vouchers and availed loans from the bank against their deposits and in some cases, he raised loans in fictitious names and used to divert the said amounts to the loan accounts which he fraudulently raised on the deposits. It is further alleged that one N. Rajamouli had a Kalpataru deposit, dated 10-09-1991 for Rs.1,00,000/-, under Ex.P-1 receipt, in the bank and he took deposit loan on 13-07-1994 by pledging the same and repaid the loan on 29-09-1994 but the accused did not return the receipt and the accused raised deposit loan of Rs.1,05,000/- on 06-12-1994 and Rs.1,50,000/- on 15-04-1997 on the deposit, without the knowledge of Rajamouli and Ex.P-7 is the letter written by him to the Vigilance Officer. It is also alleged that T. Ratnamma deposited an amount of Rs.1,00,000/- vide F.D.R. dated 18-07-1995 under Ex.P-8 and without her knowledge he raised a loan of Rs.75,000/- under Ex.P-9 and he took the signature of T. Ratnamma on the reverse of a debit voucher, Ex.P-9, and he also singed below the signature of T. Ratnamma in Ex.P-9 in token of having received the cash and T. Ratnamma wrote a letter dated 09-05-1997 to the Vigilance Officer to the effect that she never raised any loan from the bank on the said deposit and that the accused voluntarily gave a statement that he has committed fraud and would repay the amounts to the affected parties. After investigation, PW.1 sent Ex.P-13 report to the higher officials. The then Inspector of Police, Central Bureau of Investigation (for short CBI), Hyderabad, K.R.K.V. Prasad, registered a case in RC No.6 (A) of 1998 against the accused for the offences punishable under Sections 406, 409 and 420 IPC and 13 (2) read with 13 (1) (d) of the P.C. Act and the case was transferred to PW-10, Deputy Superintendent of Police, CBI/SPE/ Hyderabad, took up investigation and collected Exs.P-1 to P-32 and he examined PWs.1 to 6 and recorded their statements and seized the relevant documents from the Bank and obtained the signatures of the accused and sent them to PW.9 Government Expert for his opinion and PW.9 compared the disputed signatures with that of the admitted signatures of the accused and also the signatures of the witnesses and gave his opinion and after obtaining the opinion of the expert, PW.10 filed charge sheet against the accused for mis-appropriation of funds. 3. The following charges were levelled against the accused: “CHARGE No.1: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, committed criminal breach of trust by misappropriating the funds which were entrusted to you as Manager of Andhra Bank to a tune of Rs.2,50,464/- during the period from 29-09-1994 to 18-09-1995 in the deposit accounts of Sri N. Rajamouli, Smt. T. Ratnamma, resident of Narasingapur village and subsequently repaid the said amount into two accounts over a period of time and thus committed the offence punishable under Section 409 IPC and within my cognizance. CHARGE No.2: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, cheated Andhra Bank, Narsingapur branch, karimnagar Dist., to a tune of Rs.2,50,464/- by misrepresenting as if the loans were availed by Sri N. Rajamouli and Smt. T. Ratnamma and thereby committed offence punishable under Section 420 IPC and within my cognizance. CHARGE No.3: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, prepared false debit vouchers in the deposit accounts of Sri N. Rajamouli and Smt. T. Ratnamma and forged their signatures to facilitate withdrawal of funds and thereby committed offence punishable under Section 468 IPC and within my cognizance. CHARGE No.4: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, created forged vouchers in the deposit accounts of Sri N. Rajamouli and Smt. T. Ratnamma and used them as genuine to facilitate withdrawal of funds from the said accounts and thereby committed the offence punishable under Section 471 IPC and within my cognizance. CHARGE No.5: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, falsified the records of Andhra Bank, Narsingapur branch, Karimnagar Dist., in respect of deposit accounts of Sri N. Rajamouli and Smt. T. Ratnamma and thereby committed the offence punishable under Section 477-A IPC and within my cognizance. CHARGE No.6: That you while working as Manager of Andhra Bank, Narsingapur branch, Karimnagar Dist., during the period 1994 to 1997, committed grave misconduct by abusing your position as public servant and misappropriated the bank funds and obtained pecuniary advantage to yourself to the tune of Rs.2,50,464/- in the deposit accounts of Sri N. Rajamouli and Smt. T. Ratnamma though you have made partly repayment at a later date and thereby committed an offence punishable under Section 13(2) read with 13(1)(c) and (d) of the P.C. Act, 1988 and within my cognizance.” When the charges were read over and explained to the accused, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, prosecution examined PWs.1 to 10 and got marked Exs.P-1 to P-32. No oral or documentary evidence was adduced on behalf of the accused. 5. The trial Court after considering the evidence on record, came to the conclusion that the accused was found guilty for the charges levelled against him and accordingly convicted and sentenced him as stated supra. Challenging the same, the present Criminal Appeal is filed. 6. The learned Counsel appearing for the appellant/accused contended that the specimen signatures of the appellant were not obtained before the Court or under the authority of the Court and therefore the evidence of PW.10 has to be rejected and the opinion of the expert is unsustainable under law; that it is admitted even by the Investigating Officer that the amount allegedly mis-appropriated by the appellant has been remitted back to the concerned authorities; that though the Investigating Officer examined the witnesses and recorded their statements, they have not been furnished thereby causing prejudice to the appellant; that there was no aggrieved party in this case, and that no person has given any complaint against the appellant; that the alleged extra judicial confessions Exs.P-14 and P-17 have been made by the appellant by way of compulsion or they were obtained by the person in authority; that the bank transactions involve 3 or 4 persons with regard to receipt, encashment or adjusting the money into the account but the police filed the case against the appellant alone which shows biasing nature, that and the alleged mis-appropriated amounts have been paid by the appellant even before the commencement of investigation i.e. prior to the registration of the case and therefore no offence is made out against the appellant. Therefore, he prays to set aside the convictions and sentences recorded by the trial Court. 7. On the other hand, learned Standing Counsel for CBI contended that even though the loanees have repaid the loan amounts, those amounts have not been entered in the Bank records, and their evidence remained unchallenged; that the accused himself voluntarily gave extra judicial confession admitting his guilt and as a matter of fact, after the commencement of investigation, appellant repaid the substantial amounts mis-appropriated by him; that some of the signatures of the loanees have been forged by the appellant, which may be seen from the evidence of PW.9; that the trial Court after elaborate consideration of evidence on record, rightly found the appellant guilty and there are no grounds to interfere with the convictions and sentences recorded by the trial Court. 8. Now the point for determination in this Criminal Appeal is whether the prosecution proved its case beyond all reasonable doubt for the charges levelled against the appellant and whether the judgment of the trial Court is correct and proper ? 9. For the offence punishable under Section 409 IPC, the prosecution has to prove that the appellant was entrusted with the property, or with any dominion over the property in his capacity as a Branch Manager and if he dishonestly mis-appropriated or converted to his own use that property in violation of any law in touching the discharge of his trust, it is an offence punishable under Section 409 IPC. 10. The offence under Section 420 IPC as defined under Section 415 IPC has two essential ingredients, viz., deceit i.e. dishonest or fraudulent misrepresentation to a person and inducing of that person thereby to deliver property. To constitute an offence under Section 420 IPC, it is not necessary to prove both wrongful loss and wrongful gain. It is enough to establish the existence of either of them. 11. In so far as the offence punishable under Section 468 IPC is concerned, forgery for the purpose of cheating is an offence. Section 463 IPC defines 'forgery'; whoever makes any false document or part of the document with an intention to cause damage or injury to the public or to any person is a forgery. 12. 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 is an offence punishable under this Section. 13. Under Section 13 (2) of the P.C. Act, if a public servant commits mis-conduct within the meaning of 13(1) (c) and (d) whereunder if a public servant dishonestly mis-appropriated or convert to own use of the property entrusted to him as a public servant or by corrupt or illegal means obtains valuable thing or pecuniary advantage is an offence punishable. 14. The contention of the learned counsel for the appellant is that admittedly the Investigating Officer did not obtain the specimen signatures of the accused and the other loanees before any Court and that they were obtained in the presence of Bank Officials only. In support of his contention, he relied upon a decision of this Court reported in DEPUTY CHIEF CONTROLLER OF IMPORTS AND EXPORTS, HYDERABAD VS. BODDULA MALLESHARA[1] wherein it was held in para-7 as follows: “(7) …..................... Section 73 of the Evidence Act in our opinion cannot be made use of for collecting specimen writings during the investigation and recourse to it can be had only when the enquiry of the trial Court before which proceedings are pending requires the writing for the purpose of enabling it to compare the same.” 15. Basing on the above decision, the learned counsel contended that obtaining of the signatures of the appellant and the other witnesses during the course of investigation, without there being any direction by the Court, is unsustainable and consequently the opinion of the expert is valueless. 16. This Court in an unreported decision dated 19-06-2009 in Criminal Revision Case No.1861 of 2003 between RATHI @ RAMESH RATHI v. STATE OF A.P. held that during the course of investigation, the Investigating Officer can collect the specimen signatures and hand-writing of the accused person for the purpose of comparison with the admitted signatures of the accused, but, when a trial is pending before the Court or an enquiry is pending before a Court, then only the Investigating Officer has no authority or power to obtain specimen hand-writing or signatures of the accused person. The word 'investigation' includes collection of evidence, examination of the accused etc. It is pertinent to refer to a decision reported in STATE OF BOMBAY V. KATHI KALU OGHAD[2] wherein it was held thus: “It is well established that cl.(3) of Art.20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony.' The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or ay refuse to make any statement. But his finger impression or his handwriting, inspite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness.' “ Therefore, obtaining the signatures of the accused and the other witnesses by the Investigating Officer during the course of investigation is completely in accordance with law and the procedure adopted by the Investigating Officer in obtaining the signatures of the appellant and the witnesses cannot be said to be irregular and illegal. 17. The other contention of the learned counsel for the appellant herein is that though the investigating Officer examined the witnesses during the course of investigation and recorded their statements, those statements have not been made available to the appellant, so as to cross examine the witnesses. 18. There cannot be any dispute that the statements recorded by the police during the course of investigation under Section 161 (3) Cr.P.C. are not substantive evidence. Except for contradicting the evidence of a witness in the manner provided under Section 145 of the Indian Evidence Act 1872, the statement recorded by the police cannot be used for any other purpose. Even for cross-examination of the witness also the statements cannot be used. If there is any contradiction elicited in the evidence of such witness or an omission amounting to contraction, those contradictions have to be marked by duly bringing to the notice of the Investigating Officer. It is observed in the judgment that after appearance of accused, he was furnished with copies of the charge sheet, documents etc., as required under Section 207 Cr. P.C. That observation is not shown to be false. Hence, the contention of the learned counsel for appellant is wholly untenable. 19. The charge levelled against the accused is that he mis-appropriated the funds of the bank to a tune of Rs.2,50,464/-, during the period from 20-09-1994 to 28-09-1995 in the deposit accounts of N. Rajamouli and T. Ratnamma and subsequently he repaid the same. 20. Admittedly, T. Ratnamma was not examined but N. Rajamouli was examined as PW.6. According to him, he deposited Rs.1,00,000/- in F.D.R. and he obtained a loan of Rs.60,000/- and he repaid the entire loan amount to the Bank but, he kept the deposit receipt with the accused for safe custody. He categorically stated that the accused unauthorizedly utilized Rs.1,05,000/- from the F.D.R. amount. He admitted that he signed on the reverse of credit vouchers, which are marked as Exs.P-80 and 81 in Crl.A. No.674 of 2002 (C.C. No.13 of 2000). 21. PW.1 is the Vigilance Officer. He deposed that on receiving a complaint about the mis-management of funds in the branch, he conducted inspection along with the staff. According to him, PW.6 had taken Ex.P-1 Kalpataruvu deposit on 10-09-1991 for Rs.1,00,000/- and thereafter obtained loan by pledging the said deposit on 23-07-1994; that the said loan was repaid on 29-09-1994. He specifically stated that on 06-12-1994 the accused without the knowledge of PW.6 raised deposit loan of Rs.1,05,000/- on Ex.P-1; that Ex.P-1 was due for renewal on 15-04-1997; that the amount became from Rs.1,00,000/- to Rs.2,00,000/-; that on 15-04-1997 the accused raised a loan of Rs.1,50,000/- on Ex.P-1 and transferred the said amount to the loan to adjust the earlier loan; that the accused issued Ex.P-3 fresh F.D.R. dated 15-4-1997 for Rs.2,00,000/-. It is specifically stated by PW.1 that Ex.P- 4 is the receipt for Rs.1,50,000/- dated 17-04-1997 and it was created by the accused as if it was paid on 17-04- 1997; that Ex.P-5 is the receipt showing the adjustment of earlier loan. So, the evidence of PW.1 coupled with the evidence of PW.6. It is clear that an amount of Rs.1,05,000/- was utilized unauthorizedly by the accused. 22. PW.1 further stated that when T. Ratnamma deposited an amount of Rs.1,00,000/- under Ex.P-8 FDR and the accused raised a loan of Rs.75,000/- in the name of Ratnamma on 09-09-1995 without the consent of T. Ratnamma and mis-appropriated the amount for himself; that Ex.P-9 is the voucher signed by the accused raising the loan of Rs.75,000/-, which is without the consent of the customer. He also stated that Ex.P-10 is the part payment voucher signed by the accused and the columns were filled in by the accused. He categorically stated that Ex.P-11 dated 09-05-1997 is the letter written by T. Ratnamma to the Vigilance Officer to the effect that she never raised any loan in the Bank on the said deposit; that the loan amount of Rs.75,000/-, raised on the deposit amount of T.Ratnamma, with interest was adjusted by defrauding another customer namely B. Komaraiah and his wife Bhagyalakshmi. Ex.P-13 is the report submitted by PW.1. He further stated that admittedly he has no personal knowledge about any of the transactions but basing on the documentary evidence, he gave the evidence. He further admitted that the accused paid the entire amount involving in this case during the course of investigation. 23. According to learned counsel for the accused the amount has been repaid during the enquiry but not during the investigation. But, there is no material on record to show that on what dates the accused has repaid the alleged amounts, mis-appropriated by him, to a tune of Rs.2,50,464/-. As seen from Ex.P-13, it is clear that out of the mis-appropriated amount of Rs.7,14,655/-, the bank has recovered Rs.6,70,655/- during the course of investigation. This document has not been challenged. Therefore, the evidence of PW.1 coupled with the recitals in Ex.P-13. It is clear that during the course of investigation only, the substantial amounts have been repaid. 24. PW.2 is the Inspector of branches at Regional Inspectorate, Hyderabad. He deposed that he had conducted voucher audit of Narsingapur branch of Andhra Bank and found mis-appropriation of Rs.55.4 lakhs; that he did not state the said fact before the CBI when he was examined. The said statement is an improvement. Except alleging that mis-appropriation of funds in the accounts and deposit loan accounts, nothing has been stated by him. 25. PW.3 is the Cashier in Andhra Bank. He identified the signatures of the accused on Exs.P-6 to P-13 and Ex.P-14 is the letter dated 05-05-1997 addressed by the accused. 26. PW.4 is the Rural Development Officer. He deposed that he verified the loan account of J. Anthaiah; that it was shown as outstanding though the loan amount has been paid. PW.5 is the clerk and he was examined to show that the accused gave Ex.P-17 before a notary. A perusal of Ex.P-17 would go to show that without the knowledge of PW.6, the accused raised a fictitious loan and the same was adjusted to the account No.94/91. 27. Therefore, from the evidence, it is clear that the accused received certain amounts i.e. from the loanees for repayment of loans or by way of deposits into the accounts of account holders, but those amounts have not been entered into the bank ledger, and also raised fictitious loans without the knowledge of the deposit holders. On complaints lodged by the loanees and the account holders, the accused repaid those amounts during the course of investigation but not prior to the registration of the case. 28. P.W-9 is the Handwriting Expert who examined the disputed signatures with the admitted signatures of the accused and the witnesses and gave Ex.P-30 opinion. His evidence would go to show that the person who wrote standard writing marked as S.1 to S.277 in Ex.P-20 and P-21 (S.1 to S.271 in Ex.P-20 and S.272 to S.277 in Ex.P-21) and the writing marked as A.21 to A.35, (standard writing of the person R.S. Ratnababu) also wrote the questioned writing marked as Q.59, Q.61 in Ex.P-5, Q.63, Q.65 in Ex.P-4, Q.72/1, Q.73/1, Q.75 in Ex.P-10. Therefore, from the above evidence, it is clear that the accused has forged the signatures of the customers and he is not supposed to do the same. 29. The learned counsel for the appellant contended that all the amounts have been paid by the accused before commencing the investigation i.e. prior to the registration of the case, and so, the question of mis- appropriation or mis-conduct does not arise. He further contended that major portion of the alleged mis- appropriated amounts have been paid prior to the investigation and a small portion of the mis-appropriated amount is still due and the appellant is prepared to pay that amount, after obtaining loan. 30. Learned Standing Counsel appearing for the respondent contended that even a temporary mis- appropriation of the amounts is an offence punishable under Section 409 IPC. It can be accepted because in an appropriate case if the court is satisfied that the accused repaid the misappropriated amount substantially, this may be a ground for leniency, but