* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 264 OF 1999 IN CRIMINAL APPLICATION NO. 237 OF 1999 IN SPECIAL CASE NO. 67 OF 1998 Union of India, through CBI ..... Applicant V/s. Bhalchandra Sitaram Sathe and anr. ..... Respondents (Orig.accused R.no.1) ========== Mr.H.V.Mehta with Mr.J.C. Satpute, Advocate for the applicant. Mrs.Teja Katdare, Advocate for the respondent no.1. Mr.H.J.Dedhia, APP for State/respondent no.2. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 28TH JANUARY, 2009. P.C. : 1. The Union of India through the Central Bureau of Investigation (Economic Offences Wing) has filed this criminal revision application to challenge legality of the order dated 22nd July 1999 passed by the Special Judge in Special Case No. 67 of 1998. By the impugned order, respondent no.1 has been * 2 * discharged in the special case. Respondent no.1 was chargesheeted alongwith two more persons i.e. Pragnesh Mehta (accused no.1) and Vijay Edgaonkar (accused no.2). The facts alleged by the prosecution are that, accused no.1 had opened two Current Accounts being Account No. 100567 and 199834 in Allahabad Bank, Bhandup Branch in the name of his two proprietary concerns namely M/s. Shree N.P.Enterprises and M/s. Arihant Industries respectively. Accused no.2 was at the relevant time the Branch Manager and respondent no.1 the Assistant Branch Manager. Respondent no.1 and accused no.2 entered into criminal conspiracy with accused no.1 and abused their powers and authority to permit a clean advance of Rs.17 lacs to accused no.1 in the above two current accounts. Whenever, accused no.1 deposited a cheque in the bank for realisation, respondent no.1 and accused no.2 used to credit the amount of the cheque in one of the two accounts on the same day without verification or acutal realisation of the cheque amount from the drawee banks. On 15th March, 1996, accused no.1 deposited three cheques, one cheque in the sum of Rs.6 lacs drawn on Saraswat Co-operative Bank, Mulund Branch, another cheque in the sum of Rs.6 lacs drawn on Punjab and Maharashtra Co-op Bank Ltd, Bhandup Branch and the third cheque in the sum of Rs.6 lacs drawn on Punjab and Maharashtra Co-op Bank Ltd, * 3 * Mulund (W) Branch. As per the modus adopted, the amount in the three cheques were credited to the accounts of the proprietary concerns without actual realisation of the amount from the drawee banks. On that day, respondent no.1 happened to be on leave. Four days thereafter i.e. on 19th March, 1996 all the three cheques were returned unpaid by the drawee banks. The cheques were brought back by one Mudke, a peon of Allahabad Bank and handed the same over to respondent no.1 along with other correspondence received from the service branch of Allahabad Bank. Respondent no.1 in collusion with accused no.2 took the three cheques without keeping any record in the Inward Register of the bank. Both also, did not debit the amount of unpaid cheques to the accounts of the two proprietary concerns of accused no.1. Respondent no.1 in collusion with accused no.2 replaced the `cheque return patti' and prepared a new `cheque return patti' which was typed on the facit machine of the bank deleting particulars of the three cheques amounting to Rs.17 lacs. The fabricated cheque return patti showed return of only 9 cheques for the total amount of Rs.82,573/- instead of Rs.17,82,573/- for the 12 cheques. Thereafter, respondent no.1 and accused no.2 destroyed the 3 cheques of Rs.17 lacs and the original “cheque return patti” which was received from the service branch alongwith 12 cheques. In the ordinary course of * 4 * business, the bank is required to maintain a `Day Long Book' in which respondent no.1 in his own hand added a figure of “17” before “00,100” and thereby manipulated the total figure in the bank account. These changes were effected by respondent no.1. Further in the current account A.L.account, Rs.17 lacs were added by respondent no.1 so as to balance the account. The figure of “17” was prefixed by him in his own handwriting. Respondent no.1 had handed over 12 upaid cheques with the “cheque return patti” to accused no.2 on 19th March 1996 which were replaced by accused no.2. 2. It is contended that the name of respondent no.1 does not appear anywhere on record. It is not taken by any of the persons whose statements were recorded in connection with the complaint and therefore there is nothing to show that he is connected to the offence in the complaint. Much emphasis is laid also on the fact that on 15th March 1996, respondent no.1 was on leave. It is argued that consequently, he could not have come to know about any of the events that had transpired on that date. As against this, it is contended by the applicants that there is sufficient material on record to connect the respondent to the offence. Further, though respondent no.1 was absent on 15th March, 1996, when the dishonoured cheques had returned, he was very much present at * 5 * the time of subsequent sequence of events i.e. when the cheques and cheque return patti was destroyed, account manipulated etc. 3. The impugned order is a short and cryptic order. It hardly gives any reasons for discharging respondent no.1. The order runs into 3 pages with the reasonings given at paras-2, 3 and 4. The same read as follows : `2. Seen the statements of Madhav B. Patwardhan, Smt.Heena V.Ahuja, Smt.Loyla D'souza and Smt.Nalini Rao and Handwriting expert's opinion. 3. From the police papers, I find that there is no convincing evidence to show that applicant/original accused no.3 is the `author' of any entries with his signatures in any ledger, day-book, vouchers or letters relating to opening the account of accused no.1, its operation or any communication by the bank with its Regional Office. The statement of Smt.Nalini Rao does not pointedly show that the day-book of 29.6.1996 is in the handwriting of applicant/original accused no.3 only and is thus of no assistance to the prosecution. 4. From the existing material on file, there is no sufficient ground to proceed against the applicant/original accused no.3 so as to frame charge against him and make him face trial in this action. Applicant/original accused no.3 plea for discharge is justified and must thus be upheld. 4. The claim of respondent no.1 who was working as Assistant Branch Manager, that he was not aware of the credit facility given to accused no.1 is difficult to believe. It is not disputed that on 19th March, 1996 peon of the Bank Shri Mudke * 6 * had brought tapal from the service branch Allahabad Bank, Churchgate and handed it over to respondent no.1. It included the cheque return patti. Respondent no.1 sent the same directly to accused no.2 without honouring the same. Therefore, it did not go to the counter of Ms.Nalini Rao, clerk-cum-cashier for making entry in account ledger folio. This was departing from the usual procedure which conduct remain unexplained. Thereafter, the cheque return patti was replaced by another cheque return patti deleting the three cheques worth Rs.17,00,000/-. Then, there was change made in the Day Long Book writing figure “17” before “00100” manipulating the total figure. The statement of Nalini Rao, clerk-cum-cashier states in definite terms that the change made was in the hand of respondent no.1. She has also stated that whenever accused no.1 came to the Branch, he always went to respondent no.1. The next unexplained circumstance against respondent no.1 is the letter dated 5th August, 1997 addressed by accused no.1 to the Manager Allahabad Bank, Bhandup Branch by which an attempt was made to show that Rs.17,00,000/- was permitted by the Bank to accused no.1 as an overdraft facility against the cheques deposited in local clearing. This letter was written in the hand of respondent no.1. It was obviously an attempt to cover up the fraud. The learned Sessions judge * 7 * has brushed aside these circumstances by saying that there is no convincing evidence about the same and by saying that the statements of witness do not “pointedly” show the same. This denies an opportunity to the prosecution to establish the circumstances by producing evidence at the time of trial. 5. Mr.Mehta, the learned counsel for the applicant submits that what the learned Sessions Judge did was to embark upon an enquiry whether allegations in the FIR and the chargesheet were reliable or not and there upon to render definite finding about truthfulness or veracity of the allegation. Such an exercise is beyond the scope of Section 482 Cr.P.C. In this connection, he relies upon the decision of the Apex Court in the case of Central Bureau of Investigation V/s.K.M.Sharan reported in (2008)4 SCC page 471. It is seen above, that the learned Sessions Judge has instead of finding out whether the allegations as made, prima-facie establish the offence, has gone into finding out whether the allegations are true or believable. He has thereby exceeded his jurisdiction. Hence, the impugned order cannot be sustained and the following order is passed. O R D E R (i) Rule is made absolute. (ii) The application is allowed. The order dated 22nd * 8 * September 1999 discharging respondent no.1 is hereby set aside. He shall appear before the trial court on 6th February, 2009. {SMT.R.P.SONDURBALDOTA, J}