CR.A/83/1992 1/50 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 83 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PARIMAL RAMNATH DHOLAKIA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1, Mr.Mukesh A.Patel, A.P.P. for Opponent(s) : 1, MR YN RAVANI for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 26/07/2007 ORAL JUDGMENT 1. This appeal is directed against the judgment and order dated 24-1-1992 passed by learned Special Judge in Sessions Case no.75 of 1989 CR.A/83/1992 2/50 JUDGMENT whereby the appellant-original accused –Parimal Ramnath Dholakia was convicted for the offence under Sections 409, 477-A of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act. He was sentenced to suffer R.I. for five years and fine of Rs.90,000/-, in default, R.I. for one year in respect of the offence under Section 409 of the Indian Penal Code. He was imposed fine of Rs.2000/-, in default R.I. for three months in respect of the offence under Section 477-A of the Indian Penal Code and in respect of the offence under Section 5(2) of the Prevention of Corruption Act, he was sentenced to suffer R.I. for two years and a fine of Rs.5000/-,in default, R.I. for six months. 2. The case of the prosecution, in brief, is that the appellant was posted as a Clerk-Cum- Cashier in Bank of Baroda, Digvijay Plot Branch, Jamnagar, during the period 1987-88. It is alleged by the prosecution that on 6-11-1987 one Kasturben Jhutalal Shah holding Savings Bank Account no.333 with a view to deposit a sum of Rs.10,000/- in cash went to the said Branch of CR.A/83/1992 3/50 JUDGMENT Bank of Baroda and that the appellant-accused who was Cashier at the relevant time accepted the said amount in cash from Kasturben along with the paying-in-slip and after stamping the counter-foil and putting his initials thereon, he returned the counterfoil to her and accordingly entry was also made by the accused in her pass book showing credit of Rs.10,000/-.in cash. According to the prosecution, the appellant- accused then made entry in the R-37 Register showing receipt of Rs.10,000/- as also in the Savings Bank Ledger Folio of account no.333 of the said Kasturben, however, the accused then with a dishonest intention to misappropriate the amount had scored out these entries. It is further the case of the prosecution that in a similar fashion the appellant accused had misappropriated an amount of Rs.37,500/-which was deposited in cash by Ramabhai Mashribhai Keshwala holder of Savings Account no.8026 on 1-12-1987. It is alleged by the prosecution that again on 11-12-1987 one Muktaben Bhagwanjibhai holding Savings Bank Account no.3560 visited the said CR.A/83/1992 4/50 JUDGMENT Branch to deposit a sum of Rs.20,000/- and that the appellant-accused who was sitting in the cash counter accepted Rs.20,000/- According to the prosecution, this time the accused only made entry showing credit of Rs.20,000/-in her passbook in his own handwriting but failed to make entries in the R-37 Register and Ledger Sheet. It is alleged by the prosecution that again on 3-2-1988 one Kanji Naran Songara holding Savings Bank Account no.4030 visited the said Branch of the bank to deposit Rs.10,000/- in cash and that the appellant-accused who was the Cashier at the relevant time accepted the said amount along with the paying-in-slip no.425413, stamped the counterfoil, put his initials thereon and handed over the counterfoil to Kanji Naran Songara who in turn gave his passbook to the appellant-accused for making entry , and accordingly, the appellant-accused also made an entry in the passbook showing credit of Rs.10,000/-. According to the prosecution, the appellant accused although made an entry in this regard in the R-37 Register, he thereafter, CR.A/83/1992 5/50 JUDGMENT scored out the said entry. It is further alleged that the said Kanji Naran again visited the said Branch of the bank to deposit Rs.5000/-in cash on 11-2-1988 and that the appellant accused accepted the amount of Rs.5000/-in cash along with the paying-in-slip, put his initials on the counterfoil and returned the same to Kanji Naran. The accused also made entry in the passbook of Kanji Naran showing credit of Rs.5000/- on 11-2- 1988, but did not make any entry to that effect in the R-37 Register. It is further alleged by the prosecution that on 3-2-1988 one Rajnikant Amrutlal Zinjuwadia holding a joint saving Bank Account no.1838 visited the bank to deposit Rs.30,000/- and that the appellant –accused had misappropriated amount in the same manner as that of Kanji Naran Songara on 3-2-1988 as stated above. It is also alleged by the prosecution that on 4-4-1988 one Amrutlal Desabhai Zinjuwadia, father of the said Rajnikant holding joint S.B.Account no.1838 visited the said Branch of the bank to withdraw an amount of Rs.10,000/- for which he gave a cheque dated 4-4-1988 at the CR.A/83/1992 6/50 JUDGMENT counter and received a token against the same from the counter clerk. According to the prosecution, the appellant-accused having already misappropriated an amount of Rs.30,000/-in respect of account no.1838 on 3-2-1988 was watching this transaction and since he knew that sufficient balance was not there in that account, the appellant-accused himself deposited an amount of Rs.10,000/- in the said account by preparing paying-in-slip and also making an entry of Rs.10,000/- in R-37 Register in his own handwriting, and accordingly, the appellant accused had made debit as well as credit entries in the account of Zinjuwadia. Thus, according to the prosecution, the appellant-accused had not only without any authorization made payment of Rs.10,000/- from his own counter to Zinjuwadia but also made an entry in the R-37 Register to the effect that he had advanced an amount of Rs.10,000/- to the Chief Cashier who was at the relevant time the paying cashier. It is also alleged by the prosecution that in the same manner in which the appellant-accused had CR.A/83/1992 7/50 JUDGMENT misappropriated the amount of account holder no.333 Kasturben, as stated above, the appellant- accused had misappropriated an amount of Rs.10,000/- in respect of Bhagwanji Punja Chanderia holder of S.B.Account no.5388 on 4-4- 1988. It is thus the case of the prosecution that the appellant–accused by these acts with a dishonest intention to cheat the customers of the bank and the bank itself had indulged into falsification of the accounts of the bank, and thereby misappropriated an amount of Rs.1,22,500/-by abusing his official position as a public servant. In connection with the aforesaid offence, Police Inspector, C.B.I, Ahmedabad Branch at the relevant time registered F.I.R on 18-8-1988 at 15.00 hours. During investigation, the Investigating Officer carried out the necessary formalities like search of the house of the appellant-accused by taking out search warrant, seizure of documents from the house of the accused, obtained specimen handwritings of the accused on different dates, recorded statement of the customers-account CR.A/83/1992 8/50 JUDGMENT holders and seized the counter-foils of the paying-in-slip, pass book etc., recorded the statement of various bank personnel. Thereafter, the Investigating Officer forwarded the seized documents including a list of questioned documents as also a list of specimen handwritings of the appellant-accused to the Superintendent of Police who sent the same to the handwriting experts for opinion and on receipt of the opinion dated 28-8-1989 placed the same on the record of the case. On completion of investigation and obtaining sanction for prosecution as required, challan was submitted against the appellant- accused before the learned Special Judge, Court no.3, Ahmedabad. The learned Special Judge framed the charge Exh.10 and read over and explained the charges under Sections 409, 477-A of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act on 20-2-1991. The appellant- accused denied his indictment and claimed trial. 3. To prove the culpability of the appellant-accused, the prosecution examined as many as 20 witnesses , namely, PW 1 B.N.Menon at CR.A/83/1992 9/50 JUDGMENT Exh.14, PW 2 Harising Dhanak (Panch) at Exh.15, PW 3 G.B. Rammurti (Sanctioning Authority) at Exh.19, PW 4 Dhansukhlal Harekrushna Thakar (Chief Cashier) at Exh.23, PW 5 Rajnikant Amrutlal Zinjuwadia, Account holder, at Exh.50, PW 6 Kanji Naranbhai, Account holder at Exh.51, PW 7 Rambhai Mashribhai Keshwala, Account holder at Exh.52, PW 8 Bhagwanji Punjabhi, Account holder at Exh.53, PW 9 Vinodbhai Ramanlal Shah, Panch at Exh.54, PW 10 Narsinhbhai Govindbhai (Panch) at Exh.56, PW 11 Arvindbhai Tulsidas Ganatra Ledger Keeper at Exh.58 PW 12 Devikumar Vanmalidas Mehta , Clerk –Cum-Cashier at Exh.64, PW 13 Keshavlal Madhavlal Kanjaria, Special Assistant in S.B.Department at Exh.65, PW 14 Amrutlal Zinjuwadia, Account holder, at Exh.68, PW 15 Muktaben Bhagwanji Surelia, Account holder at Exh.69, PW 16 Naradprasad Chimanlal Baria, Panch, at Exh.70, PW 17 Navinchandra Ranchhodbhai, Accountant at Exh.72, PW 18 G.N. Chatrati, Handwriting Expert at Exh.83, PW 19 Kasturben Juthalal, Account holder at Exh.86, PW 20 Govindbhai Somabhai, Officer of the Bank, at CR.A/83/1992 10/50 JUDGMENT Exh.87, PW 21 S.S.Shastri, Investigating Officer at Exh.92 and also produced documentary evidence vide list Exh.21 at page 163 of the compilation. Thereafter, the statement of the accused under Section 313 of the Criminal Procedure Code was recorded. The sum and substance of the further statement of the accused is that he had not misappropriated any amount and had not committed any offence, but had become the victim of politics in the bank and that he was falsely implicated in this crime, however, he had made certain admissions with regard to his specimen signatures, initials etc. 4. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution both oral as well as documentary, the learned Judge of the trial Court held that the prosecution has established beyond doubt that the appellant-accused has with a dishonest intention to the cheat the bank and the customers had resorted to falsification of books of account, and thereby misappropriated an amount of Rs.87,500/- and therefore, held the appellant- CR.A/83/1992 11/50 JUDGMENT accused guilty of the offence with which he was charged and passed the judgment and order of conviction and sentence as stated in para-1 of this judgment, giving rise to the present appeal. 5. Hear Mr.M.J.Buddhbhatti,learned Counsel for the appellant–accused, learned A.P.P. Mr.Mukesh A.Patel for the respondent no.1-State and Mr.Y.N.Ravani, learned Counsel for the respondent no.2. 6. The learned Counsel for the appellant, has raised several contentions in order to show that the prosecution has failed to establish the charges levelled against the appellant-accused beyond reasonable doubt, and submitted that the impugned judgment and order of conviction and sentence, deserves to be quashed and set aside by allowing this appeal. 7. The learned Counsel for the appellant- accused firstly submitted that there is no evidence on record to show that there has been dishonest misappropriation of an amount of Rs.1,22,500/-by the appellant-accused with CR.A/83/1992 12/50 JUDGMENT intent to cheat the customers by resorting to falsification of books of account. According to the learned Counsel to prove that there is misappropriation there should be evidence to show that there was shortage of cash in the bank. It has been next submitted by the learned Counsel that there is also no evidence to show the entrustment of the amounts in question to the appellant-accused. It is an admitted fact that in the instant case there is no direct evidence to show that the misappropriated sums were entrusted to the accused by the account holders, and for this purpose, the case rests entirely on circumstantial evidence. P.W.4 D.H. Thakkar Chief Cashier of the Bank of Baroda, Digvijay Plot Branch, Jamnagar in his deposition had stated to the effect that the moneys deposited vide counterfoils of the paying-in-slips Exhs.27, 36, 29,32 and 34 which are on record of the case were received by the appellant accused who was working in the said bank at the relevant time in the capacity of Receiving Cashier and that these counterfoils bear the signature of the accused, CR.A/83/1992 13/50 JUDGMENT however, in examination-in-chief this witness has admitted that the said counterfoils contained only initials of the appellant-accused but not full signatures. PW 17 Navinchandra Ranchhodbhai lends support to the statement made by PW 4 as he had identified the initials of the appellant- accused on the counterfoils. Exhs. 16, 55 and 71 are the specimen signatures, initials and hand writings of the accused respectively and they were taken in the presence of two witnesses by the Investigating Agency of CBI and the same has not been denied by the appellant-accused in his further statement. The specimen initials of the appellant-accused S-21 to S-62 tallies with the initials found in the couterfoils referred to above. Thus, the version of PW 4 and PW 17 that the counterfoils bear the signature of the appellant-accused stands duly proved, especially when, there is no denial from the appellant- accused on this count. Now, when the appellant- accused was the Receiving Cashier at the relevant time, it is quite natural to believe that the appellant accused had received the amounts as CR.A/83/1992 14/50 JUDGMENT mentioned in the counterfoils in question, more particularly when these counterfoils are found to bear the initials/signature of the appellant accused. In that view of the matter, it cannot be said that the essential requirement of entrustment of the amounts to the appellant- accused by the account holders is not fulfilled. Moreover, PW 4 has admitted in cross-examination that the appellant-accused also used to make entries in the pass books by way of helping others apart from D.V.Mehta and Ganata while PW 17 has stated that the entries in question in the pass book of the relevant account holders were in the handwriting of the accused. PW 5 Rajnikant, in his deposition at Exh.50 has stated that the pass-book with entry Exh.42 was made by the same person to whom he gave cash for depositing in his account. PW 5 Kanji in his deposition at Exh.51 has also stated that he went to the bank twice, but he had checked the entry only on the second occasion and found that the amount was credited to his account. PW 8 Bhagwan in his deposition at Exh.53 has stated that the same person to whom he CR.A/83/1992 15/50 JUDGMENT had given the pass-book, paying-in-slip and the money had returned the pass-book to him after 15 to 20 minutes Similar is the statement made by PW 15 Muktaben in her deposition at Exh.69 as also PW 19 Kasturben in her deposition at Exh.86. According to PW 19 the passbook was returned to her after about half an hour. Upon closely analyzing the evidence of these witnesses who are all account holders, this Court finds that the pass books of these account holders when submitted to the Receiving Cashier along with the paying-in-slips and the moneys that were to be deposited in all the cases the pass-books were returned within a reasonable time which shows that the entries have been made by the person who was discharging his duties as Receiving Cashier, and admittedly, the present appellant was the Receiving Cashier at the relevant time which is borne out from the deposition of PW 4 D.H.Thakkar, Chief Cashier of the bank. The details of entries in the pass-books with Exhibit number and amount misappropriated proved to be in the handwriting of the appellant-accused as per CR.A/83/1992 16/50 JUDGMENT the statement made by the witnesses, as discussed earlier, are of (1) Kasturben PW 19 holding account no.333 Exh.44, (2) Ramanbhai PW 17 holding account no.8086 Exh.43, (3) Muktaben PW 15 holding account no.3560 Exh.41, (4) Kanji Naran PW 6 holding account no.4030 Exh.46, (5) Rajnikant PW 5 holding Jt.Account no.1838 Exh.42 and (6) Bhagwanjibhai holding account no.5388 Exh.45. No doubt the evidence of these witnesses who are the officers of the bank and account holders with the bank is natural and probable, but with this evidence alone conviction cannot be based unless corroborated by other evidence on record. Now, if we look at the evidence of the handwriting expert PW 18 G.N.Chatrati at Exh.83 he has in no uncertain terms stated that the writer of the blue enclosed writings S-6 to S-10, S-80 to S-82, S-86, S-87, S-91, S-103, S-111 to S-120, S-131 to S 134 (specimen handwritings of the appellant-accused), A-1 and A-2 also wrote the red enclosed writings marked Q-1 to Q-6 (Questioned handwritings). It is important to note that the appellant accused has not denied CR.A/83/1992 17/50 JUDGMENT that Exhs.16, 55 and 71 being his specimen signatures, initials and handwritings in his further statement recorded under Section 313 of the Criminal Procedure Code. According to the handwriting expert PW 18 the entries in the pass- books Exhs.44, 43, 46, 42, 45, and 41 are identified to be that of the appellant-accused by the questioned handwritings Q-1 to Q-6. Mention also requires to be made here that the entries in the pass-books which have been admitted in evidence as referred to above also contain some disputed entries, however, these disputed entries are bound to be present since in the defence evidence it has come out that the appellant- accused also used to make entries in the pass- books in the nature of providing help to other staff members who were entrusted with such work. This act on the part of the appellant-accused smells foul as certainly the accused had taken this step with a dishonest intention to hide his deeds of misappropriation of huge amounts by resorting to falsification of the books of accounts of the bank for cheating the CR.A/83/1992 18/50 JUDGMENT bank/customer. With this set of evidence emerging from the record of the case, this Court finds no reason to disbelieve the evidence of the handwriting expert that stands fully corroborated by the evidence of PW 4, PW 17 and other evidence of account holders of the bank. I am therefore constrained to hold that the disputed handwritings in the passbooks are of the accused and none else. Considering this evidence the stand taken by the learned Counsel that entrustment of the amounts in question to the appellant-accused is not proved is not worthy of acceptance. The dishonest misappropriation of the various amounts deposited by the account holders by the appellant-accused shall be dealt with a little later. The learned Counsel next submitted that the initials on the counterfoils alleged to have been made by the appellant-accused are nothing but strokes, and therefore, also there is no legal proof on record to establish the entrustment. This contention cannot also be accepted in view of the fact that on a thorough study of the initials it is found that the same CR.A/83/1992 19/50 JUDGMENT are made in such an extraordinary and peculiar style that it is not even possible for any one to imitate or copy the same which shows that these initials are made by a person who knows the value of his initials. Moreover, as stated earlier, these initials have been proved to be of the appellant-accused by the handwriting expert with the aid of corroboration received from the evidence of two officers of the bank, namely PW 4 and PW 17. 8. The learned Counsel next contended that merely because some writings are proved to be in the handwriting of the accused, it cannot lead to an inference that incriminating documents or entries are in the handwriting of the appellant- accused. This invites me to refer to the entries in the Savings Bank Account of various customers allegedly made and scored out by the accused. PW 4 Chief Cashier of the bank in his examination- in-chief has stated that in R-37 Register (Receipt Payment Register) which is admitted in evidence at Exh.28 original entry was scored out and some other entry dated 6-11-1987 was made. CR.A/83/1992 20/50 JUDGMENT According to this witness, the writing was in the handwriting of the accused (Q-20, Q-20-A, Q-20C and Q-20-B). PW -11, the ledger keeper A.T.Ganatra has stated that the corresponding entry is at Exh.59 which relates to the account of Kasturben (PW 19) wherein entry of Rs.10,000/- was found to have been made and scored out. Thus, after scoring out the entry of Rs.10,000/- the credit entry of Rs.10,000/- as seen in the counterfoil Exh.27 and the pass-book entry Exh.44 does not at all appear in Exh.59. Now if we look at the deposition of PW 18, the handwriting expert he has opined that the questioned handwritings Q-20, Q-20-B, Q-20-C, namely, the handwritings in Exh.28(R-37 Register) were those of the same person who wrote the blue enclosed writings Mark S-6 to S-10, S-80 to S-82,S-86, S- 87, S-91, S-103, S-111 to S-120, S-131 to S-134, A-1 and A-2 and also wrote the red enclosed writings marked Q-1 to Q-6 which is indicative of the fact that the said questioned handwritings are of the appellant-accused more particularly when in his further statement recorded under CR.A/83/1992 21/50 JUDGMENT Section 313, Cr.P.C. the appellant accused has admitted the said specimen handwritings as also the questioned handwritings to have been written by him. Even PW 17, the accountant of the bank in his deposition at Exh.72 has stated that the entry Exh.28 in R-37 Register was in the handwriting of the appellant-accused. Thus, it is established that the entry of Rs.10,000/-was scored out in R-37 register which means that this entry has been there in the R-37 Register at some point of time as otherwise this entry of Rs.10,000/- would not have appeared in Exh.59 (ledger). The balance prior to the disputed scored out entry was Rs.884-64 and after giving credit of Rs.10,000/-the balance was raised to Rs.10,884.64ps. Thereafter, on scoring out the entry of Rs.10,000/- the balance was again reduced to Rs.884.64p. No other person is alleged to have jointly done the work of Receiving Cashier at the relevant time, and therefore, the accused alone can be made responsible for reducing the balance to Rs.884.64ps. Exh.59 is the xerox copy of the original entry Exh.48 and CR.A/83/1992 22/50 JUDGMENT PW 4 in his deposition at Exh.23 has stated that the original entry was in the handwriting of the appellant-accused and the balance drawn after scoring out that entry was also in the handwriting of the appellant-accused. PW 4 is the Chief Cashier of the bank and when in cross- examination he has made a categorical statement that he is well conversant with the handwriting of the appellant-accused, there is no reason to disbelieve this witness. It is interesting to note that in Exh.28 dated 6-11-1987 the cash scroll the disputed receipt of Rs.10,000/- in the column of receipt where the amounts received by the appellant-accused is shown, is missing. This would go to show that the relevant voucher had been retained by the appellant-accused who was the Receiving Cashier thereby preventing the entry being made in the cash scroll which also reflects the dishonest intention of the appellant-accused. This act on the part of the appellant-accused is not only a violation of the procedure to be followed by him while discharging his duties as a Receiving Cashier but would CR.A/83/1992 23/50 JUDGMENT amount to cheating the customer and the bank itself by misappropriating an amount of Rs.10,000/-, as the absence of the relevant entry of Rs.10,000/- in the scroll would mean that the amount is not credited in the bank or even received at the bank. Thus, the appellant-accused having suppressed the voucher and prevented the entry from being made in the scroll is a circumstance which conclusively points to the guilt of the appellant-accused and none else. The argument advanced by the learned Counsel that there are no incriminating documents or entries in the