Crl. Appeal No. 220-SB of 1993 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 220-SB of 1993 Date of Decision : December 24, 2008 S.P. Malhotra son of K.G. Malhotra, resident of H. No. 55, Sector 38- A, Chandigarh. .... Appellant. Versus U.T. Chandigarh .... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Dinesh Goel, Advocate for the appellant. Mr. Ajay Kaushik, Standing Counsel for the C.B.I. Mr. Rajiv Sharma, Advocate for U.T., Chandigarh. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 20.07.1993, rendered by the Court of Special Judge, Chandigarh, vide which it convicted and sentenced the accused ( now appellant ), as under:- Crl. Appeal No. 220-SB of 1993 --2-- The offence, for Sentence awarded which conviction was recorded. ------------------------ --------------------------- 420 IPC RI for three years, Fine Rs.500/-. In default of payment of fine, RI for six months. 467 IPC RI for three years, Fine Rs.500/-. In default of payment of fine, RI for six months. 468 read with RI for three years, Section 471 IPC Fine Rs.500/-. In default of payment of fine, RI for six months. 5(1)(d) read with RI for four years, Section 5(2) Prevention Fine Rs.1000/-. of Corruption Act. In default of payment of fine, RI for six months. The substantive sentences of the accused were ordered to run concurrently. 2. The Special Police Establishment Branch, Chandigarh, registered a criminal case No. RC22/85-CHG, under Sections 420, 467, 468, 471 IPC and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, against S.P. Malhotra, accused, on the allegations, that he was posted, in Punjab National Bank, Palsaura, as Assistant Manager, on 01.07.1981. Sandeep Bajaj, was the holder of CD Account No. Crl. Appeal No. 220-SB of 1993 --3-- 72 in the name of M/s Bajaj Metals, 13, Industrial Area, Chandigarh. During the course of investigation, it was revealed that Debit Voucher dated 3.3.1981 for Rs.65022/- was prepared and passed by the accused, under his signatures, and the same was not signed by Sandeep Bajaj, Prop. of M/s Bajaj Metals, 13, Industrial Area, Chandigarh. The amount of Rs.65022/- was debited to his account, by the accused. Draft application dated 30.03.1981, was also not signed by Sandeep Bajaj, which had been prepared, and initialled by the accused. Signatures of the party i.e. Sandeep Bajaj, on the above debit voucher and draft application were fictitious. It was the duty of the accused ( S.P. Malhotra ), to verify the genuineness of signatures of Sandeep Bajaj, on the debit voucher, but he did not do so. On the basis of the aforesaid debit voucher, Draft No. PQV- 473236/60/81 dated 30.03.1981 for Rs.65,000/-, drawn on Chandni Chowk Branch of Punjab National Bank, favouring M/s Y.P. Electronics, was prepared, and signed by the accused. The draft was also signed by M.S. Bajwa, another Officer of the Punjab National Bank,. Palsaura, because it was beyond the powers of the accused, and the same was signed by two authorized officers. The draft was also entered, in the draft issue register at Sr. No. 60/81 on 30.03.1981, by the accused, in his own hand. The amount of the draft for Rs.65,000/- was credited to the Crl. Appeal No. 220-SB of 1993 --4-- account of actual payee i.e. M/s Y.P. Electronics, 326, Lajpat Rai Market, Chandni Chowk, Delhi, on 01.04.1981 being operated by the firm in Corporation Bank, Chandni Chowk, Delhi. It was further alleged that, during the course of investigation, it was revealed that Rakesh Kumar, real brother of Sandeep Bajaj, Prop. of M/s Bajaj Metals, Chandigarh, was married with the daughter of Amrik Lal Nanda, E-2/16, Model Town, Delhi, and Sudhir Gulati, Partner of M/s Y.P. Electronics, Chandni Chowk, Delhi, was married with the daughter of Baldev Raj Nanda, B- 47, gujranwala Town, Part-I, Delhi, real brother of Amrik Lal. Sudhir Gulati, on the asking of his father- in-law, Baldev Raj Nanda, got issued Draft No. 437905/160/81- 319 dated 20.01.1981 , for Rs.25,000/- and 43200/348/81-319 dated 6.2.1981 for Rs.40,000/- favouring M/s Chandigarh Motors, Chandigarh, for purchase of car, from Chandigarh Motors . The aforesaid drafts were sent through Rakesh Kumar. As per the record of firm M/s Chandigarh Motors, Chandigarh, the draft of Rs.25,000/- was received by the firm, through Rakesh Kumar, vide receipt No. 9418 dated 30.01.1981, and the draft of Rs.40,000/- was received through Sandeep Kumar, 13, Industrial Area, Chandigarh, vide receipt No. 9458 dated 12.02.1981. Premier Delux Car was delivered to Rakesh Kumar, by the said firm, vide Bill No. 317, dated 4.2.1981, for Crl. Appeal No. 220-SB of 1993 --5-- Rs.70,068.48 P, against which the remaining amount was paid by him ( Rakesh Kumar ). It was further alleged that as regards the amount of Rs.40,000/- pay order No. 18300/426/81 for Rs.40,000/- favouring Sandeep Kumar, was got issued, by the firm, from their account, maintained in New Bank of India, Sector 17, Chandigarh, and no car was delivered to M/s Y.P. Electronics Chandni Chowk, Delhi . During the course of investigation, it was also revealed that the amount of pay order No. 18200/426/81 dated 24.2.1981 favouring Sandeep Kumar, was not received by him. According to the pay order, the amount should have been credited to the account of Sandeep Kumar, but on the contrary, as per transfer voucher Dated 25.02.1981, this amount was credited to S.P. Account No. 1715 of Rakesh Kumar. S.P. Malhotra, accused gave false certificate, on the back of the pay order, that the amount was credited to the payee's account i.e. Sandeep Kumar, knowing the fact that the accused himself credited the same in the SF A/c No. 1715 of Rakesh Kumar. Rakesh Kumar died on 12.01.1982. Accused S.P. Malhotra, was dismissed from the bank service on 27.4.1985, on the basis of other allegations of serious lapses, on his part, in the performance of his official duties. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. Crl. Appeal No. 220-SB of 1993 --6-- 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Sections 420, 467, 468, 471 IPC, and 5 (1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Balraj Arora, Manager, (PW-1), L.R. Gupta, Sub Manager, PNB, Sadar Bazar, Delhi, (PW-2), Inderjit Kaur, Accountant, Punjab National Bank, Sector 17, Chandigarh, (PW-3), J.P. Goel, Manager, Punjab National Bank, Bhatu Mandi, District Hisar, (PW-4), Chander Mohan Bhasin, Accountant, PNB Sector 16, Chandigarh, ( PW-5 ), Vijay Sharma, Record Keeper, Chandigarh, ( PW-6 ), D. Mohindroo, Manager, New Bank of India, Mubarakpur, ( PW- 7 ), D.K. Jain, Senior Manager, PNB, Janpath, New Delhi, ( PW- 8 ), H.P. Malya, Officer, Corporation Bank, Revora Goa, ( PW- 9 ), Paramjit Singh, Accountant, PNB, Sector 16, Chandigarh, ( PW- 10 ), Ram Kumar, Office Incharge, PNB Nauch District Kurukshetra, ( PW- 11 ), Kirpal Singh, Officer, PNB, Chandni Chowk, Delhi, ( PW-12 ), M.S. Bajwa, Sub Manager, PNB, Ambala Cantt, ( PW- 13 ), Ved Brat, Manager, New Bank of India, Regional Office, Sector 17-C, Chandigarh, ( PW- 14 ), Rattan Lal, Assistant Manager, PNB, Crl. Appeal No. 220-SB of 1993 --7-- Pinjore, ( PW- 15 ), Sudhir Gulati, ( PW- 16 ), B.T. Bhandari, Manager, Corporation Bank, Head Office Manglore, ( PW- 17 ), Mohinder Singh, Manager, PNB, Chandigarh, ( PW- 18 ), M.L. Sharma, Assistant Govt. Examiner of questioned documents, Government of India, Shimla, ( PW- 19 ), Santosh Kumar, Accounts Assistant, Phillips India Ltd. Delhi, ( PW- 20 ), Sandeep Bajaj son of B.S. Bajaj, ( PW- 21 ), and Gurcharan Singh, Retired DSP, ( PW- 22 ). Thereafter, the Public Prosecutor for the C.B.I., closed the evidence of the prosecution. 5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that to save their skin, his colleagues made him responsible for the aforesaid lapses. It was further stated by him that Sandeep Bajaj had never made any complaint, about any loss, caused to anybody. It was further stated by him, that every entry was made in good faith, and without any mala-fide intention, in the normal course of business. He, however, produced Anil Vanchu, Assistant Manager, PNB Palsaura, DW1, in his defence. Thereafter, the accused closed the defence evidence, after tendering into evidence, copy of judgment Ex.DB, passed in a civil suit. Crl. Appeal No. 220-SB of 1993 --8-- 6. After hearing the Public Prosecutor for the C.B.I., the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that, even if, the case of the prosecution, on the face of it, was assumed to be correct, no criminal offence, was committed by the accused. He further submitted that, no evidence was produced by the prosecution, to prove that the accused had any dishonest intention to cause pecuniary gain to one Rakesh Kumar as also to Y.P. Electronics and wrongful loss to Sandeep Bajaj, as also to the Bank. He further submitted that Sudhir Gulati, partner of M/s Y.P. Electronics, specifically stated that there was no cheating of any nature, with them. He submitted that Sudhir Gulati admitted, in his statement, that his father-in-law instructed him that he should get a draft of Rs.25,000/-, prepared in favour of Chandigarh Motors through Crl. Appeal No. 220-SB of 1993 --9-- Rakesh Kumar Bajaj for the booking of car Padmani. He further submitted that Sudhir Gulati, also admitted that again his father-in-law, instructed him, to get issued draft for Rs.40,000/-, in favour of Chandigarh Motors. He further submitted that both these drafts Ex.P32 and P33 were prepared and sent to Rakesh Kumar Bajaj, for booking of the car. He further submitted that though inadvertently, this witness could not get the delivery of the car, and the same was taken by Rakesh Kumar ( since deceased ), who lateron, sent the amount of Rs.65,000/- through Bank Draft, Ex.P8. He further submitted that, in this manner, if any draft had been sent to M/s Y.P. Electronics, the same had been sent with an intention to repay the loan, by Rakesh Kumar and the accused was not personally involved, in any manner. He further submitted that Sandeep Bajaj is the brother of Rakesh Bajaj ( since deceased ). Sandeep Bajaj was minor, at the relevant time, and his bank account was being operated by Rakesh Kumar Bajaj. He further submitted that even if the application for draft and vouchers Ex.P4 and P5, did not bear the signatures of Sandeep Bajaj, it could not be held that the accused was responsible for committing any offence. He further submitted that the draft had been prepared, in the name of M/s Y.P. Electronics, and the accused had no connection with the said firm. He further submitted that the pay order Ex.P15 and Crl. Appeal No. 220-SB of 1993 --10-- voucher Ex.P14 , were bearer one, carrying the signatures of Sandeep Bajaj, at the back. He further submitted that, thus, the amount of the said pay order Ex.P15 could be credited, to the account of any person, whose name was given at the back of it. He further submitted that the testimony of M.S. Bajwa, PW-13, could not be given any weightage, for the reasons, that in the civil suit, filed by the bank, against M/s Bajaj Sales Factory and others, the Civil Court, passed strictures, against him, and termed him, as a man of dubious character. He further submitted that for proving the commission of offence, under Section 5(1) (d), punishable under Section 5 ( 2 ) of the Prevention of Corruption Act, 1947, the prosecution was required to prove the dishonest intention of the accused, and causing deliberate loss to the department by him. He further submitted that the prosecution miserably failed to prove this fact and, as such, it could not be said that the accused committed any offence. He further submitted that, at the most, it could be said to be an administrative lapse, on the part of the accused, for which, he could be dealt with, departmentally. He further submitted that, if a person, while discharging his official duties, misused his position and his dishonest intention, was not proved, his act could not be said to be falling within the purview of criminal offence, but, at the most, could be said to be an administrative Crl. Appeal No. 220-SB of 1993 --11-- lapse on his part, or commission of some irregularity, for which, only the departmental action could be taken against him. 10. On the other hand, the Counsel for the C.B.I., submitted that it was proved, from the evidence, produced by it, on the record, that the accused prepared the application for draft, and signed the debit/credit voucher ( Ex.P4 and Ex.P5 ), for a sum of Rs.65,000/-. He further submitted that these vouchers were passed by the accused after debiting the amount of Rs.65,000/-, from the account of Sandeep Bajaj, without any authority, in favour of M/s Y.P. Electronics. He further submitted that the Passing Officer of the debit voucher was responsible for verifying the genuineness of signatures on the debit voucher. He further submitted that the accused had further made an entry in the draft issue register at Sr. No. 6081 in the name of purchaser. He further submitted that in the register, the name of the purchaser was mentioned as Bajaj Sales, while on the debit voucher, it was mentioned as Bajaj Metals. He further submitted that the accused with dishonest intention debited the amount, on the basis of debit voucher dated 3.3.1981 for Rs.65022/- from CD Account No. 72 in the name of M/s Bajaj Metals, 13, Industrial Area, Chandigarh though the said voucher had not been signed by Sandeep Bajaj. This voucher was signed by the accused, and even draft application was signed by him. He Crl. Appeal No. 220-SB of 1993 --12-- further submitted that the signatures of Sandeep Bajaj, on the said document were fictitious. He further submitted that even the accused dishonestly credited the amount of Rs.40,000/- of pay order Ex.P15, in the name of Sandeep Bajaj, in the saving bank A/c No. 1715 of Rakesh Bajaj through credit voucher Ex.P14. He further submitted that in fact the amount of this pay order should have been credited to the account of Sandeep Bajaj. He further submitted that he, thus, caused wrongful gain to Rakesh Kumar, wrongful loss to Sandeep Bajaj, and cheated the bank. 11. After giving my thoughtful consideration, to the rival contentions, raised by Counsel for the parties, in my considered opinion, it is a fit case, in which the appeal is liable to be dismissed, for the reasons, to be recorded hereinafter. The material witnesses, in this case, are Chander Mohan Bhasin, Accountant, PNB Sector 16, Chandigarh, ( PW-5 ), M.S. Bajwa, Sub Manager, PNB, Ambala Cantt, ( PW- 13 ), Mohinder Singh, Manager, PNB, Chandigarh, ( PW- 18 ), and Sandeep Bajaj son of B.S. Bajaj, ( PW- 21 ). According to Chander Mohan Bhasin, Accountant, PNB Sector 16, Chandigarh, ( PW-5 ), the original debit/credit voucher/draft application Ex.P4 and Ex.P5 were prepared by the accused. He identified the handwriting and signatures of S.P. Malhotra, accused, on these documents. He further stated that S.P. Malhotra, accused and M.S. Bajwa passed Crl. Appeal No. 220-SB of 1993 --13-- the debit and credit vouchers. He further stated that the Passing Officer was responsible for the genuineness of signatures on the debit voucher. He further stated that the original draft Ex.P8, for Rs.65,000/- was prepared by S.P. Malhotra, which was entered at Sr. No. 6081 on 30.03.1981 by him ( S.P. Malhotra ). It was also stated by him that the name of the purchaser was mentioned in the register, as Bajaj Sales, while on the debit voucher, it was mentioned as Bajaj Metals. He also proved the specimen signatures on card Ex.P1 of Sandeep Bajaj, account holder of Bajaj Metals. These signatures were attested by S.P. Malhotra. He further stated that the signatures of the account holder on the debit voucher Ex.P4, did not tally with his signatures on Ex.P1, specimen signature card. He further stated that the original credit voucher favouring SFA No. Ex.P14, dated 25.2.81 was released by S.P. Malhotra, which bear his signatures. He further stated that, on the basis of the said voucher, the amount had been credited in the name of Rakesh Kumar. He further stated that the Officer who releases the voucher, is responsible for the payment of the amount to the payee. He further stated that the original pay order Ex.P15 for Rs.40,000/- was favouring Sandeep Kumar Bajaj, and, on the basis of the said pay order, the amount should have been credited to the account of Sandeep Kumar, but was credited in Crl. Appeal No. 220-SB of 1993 --14-- the name of Rakesh Kumar, on the basis of transfer voucher dated 25.2.81. He further stated that S.P. Malhotra, accused gave a false certificate, in this regard.Sandeep Bajaj son of B.S. Bajaj, ( PW- 21) , stated that he never operated his account in the bank. He further stated that the specimen signatures card, bore his signatures. He further stated that these specimen signatures were given in Punjab National Bank, Palsaara, at the time of opening the account. He further stated that he did not move any application, for getting a draft of Rs.65,000/- . He further stated that Ex.P4 and Ex.P5 did not bear his initials/signatures. He also stated that he did not know any firm M/s Y.P. Electronics. He also stated that he never received any pay order, amounting to Rs.40,000/-, from that firm, because he had no dealings with such a firm. He further stated that no sum of Rs.40,000/- was credited to his account, in Punjab National Bank, Palsaura, nor he deposited the same, with Chandigarh Motors. He further stated that on original pay order Ex.P15, at Q12 his signatures did not exist. S.P. Malhotra, accused, admitted that he prepared the application for draft and signed the debit/credit vouchers ( Ex.P4 and P5 ). He also admitted that he prepared the draft Ex.P8 for a sum of Rs.65,000/- in favour of M/s Y.P. Electronics, after debiting the amount, from the account of Sandeep Bajaj, without any authority from him, and further Crl. Appeal No. 220-SB of 1993 --15-- debitted Rs.22/- as a commission fee, as detailed in the statement of account, proved by Inderjit Kaur, PW-3. Since the specimen signatures card Ex.P1 of Sandeep Bajaj, was also in the Bank, it was required of the accused, to tally his signatures with his specimen signatures, before proceeding further for the purpose of preparation of the draft. As stated above. Sandeep Bajaj, denied his signatures, on the vouchers, as also on the back of the pay order. Even Sandeep Bajaj, stated that he did not give any authority to S.P. Malhotra, accused. It was, therefore, proved from the evidence of the aforesaid witnesses, that the accused by misusing his official position, as a public servant caused wrongful loss to the bank and wrongful gain to M/s Y.P. Electronics. Similarly the dishonest intention of the accused, was clearly evident when he credited the amount of pay order Ex.P15 dated 24.2.1981 for Rs.40,000/-, in the name of Sandeep Kumar Bajaj, into the saving bank account of Rakesh Kumar,without there being any authority, from Sandeep Kumar Bajaj. The accused, being the Branch Manager having Ex.P1, the specimen signatures card of Sandeep Kumar Bajaj, very well knew that the signatures on the pay order were not of Sandeep Kumar Bajaj. Even, as per the procedure of the Bank, as stated by Chander Mohan Bhasin, Accountant, PNB Sector 16, Chandigarh, ( PW-5 ), M.S. Bajwa, Sub Manager, PNB, Ambala Crl. Appeal No. 220-SB of 1993 --16-- Cantt, ( PW- 13 ), and Mohinder Singh, Manager, PNB, Chandigarh, ( PW- 18 ), it was the legal obligation of the accused to tally the alleged signatures of Sandeep Kumar Bajaj, at the back of the pay order Ex.P15, with his specimen signatures card Ex.P1, lying with the Bank. The plea of the Counsel for the appellant, to the effect, that on the pay order, Ex.P15, there was a blank endorsement, the same had been completed and, thus, the amount of the pay order had been rightly credited in the account of Rakesh Kumar, was hardly of any consequence. Voucher Ex.P14 was not signed by Rakesh Kumar, for crediting the amount of pay order Ex.P15, in his account. Sandeep Bajaj son of B.S. Bajaj, ( PW- 21 ), denied the signatures, on credit voucher Ex.P14. Under these circumstances, the amount of Rs.40,000/- could not be credited into the saving bank account of Rakesh Kumar. False certificate was given by the accused, in this regard, that the amount had been credited, in the account of Sandeep Bajaj, whereas, the same had been credited in the account of Rakesh Kumar. These documents constituted the valuable security. Under these circumstances, the aforesaid acts of the accused, clearly showed his mala-fide intention. It was not that one act of dishonest intention, which was committed by the accused, but a series of acts of dishonest intention, were committed by him, so as to cause wrongful gain to Rakesh Crl. Appeal No. 220-SB of 1993 --17-- Kumar, as also to Y.P. Electronics and wrongful loss to Bank/Sandeep Kumar Bajaj. He also cheated the bank. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. Now coming to the next submission of the Counsel for the appellant, that Sandeep Kumar Bajaj, was minor, on the dates of transactions and his account was being operated by Rakesh Kumar, his brother, could only be said to be concocted and an after-thought story. Such a plea, could be proved by the accused, by leading evidence that actually an authority had been given to Rakesh Kumar, on behalf of Sandeep Kumar Bajaj, by his guardian, that he could operate his account, in the Bank. However, no such evidence was led. In the absence of any authority, since Rakesh Kumar was not the alleged guardian of Sandeep Kumar Bajaj, if at all, he was minor, he could not operate his account, nor could he sign any document, on his behalf, for the purpose of debiting the amount, from his account, and crediting the same, in his ( Rakesh Kumar's ) account. In case Sandeep Kumar Bajaj was minor and could not operate the account, there was no question of obtaining his specimen signatures, on the specimen record Ex.P1. In those circumstances, the signatures of his guardian would have been obtained on that card. The submission of the Counsel for the Crl. Appeal No. 220-SB of 1993 --18-- appellant, being without merit, must fail, and the same stands rejected. 13. The next submission of the Counsel for the appellant, to the effect, that according to the statement of Sudhir Gulati ( PW-16 ), no loss was caused to the Bank, nor to Y.P. Electronics, nor the bank was cheated, and as such, no offence was committed by the accused, is also without merit. Whether any loss was caused to one party or gain was caused to other party, was hardly of any consequence. The mere fact