CR.A/786/1988 1/114 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 786 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= ALOIS SIMON PARMAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR DF AMIN for Appellant(s) : 1, MR AJ DESAI, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, MR YN RAVANI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 16/03/2007 CAV JUDGMENT 1. The present Criminal Appeal is filed by the appellant accused convicted and sentenced for the offences punishable under sections 420, 467, 468 and 471 CR.A/786/1988 2/114 JUDGMENT of the Indian Penal Code and also for the offence punishable under section 5(2) R/w Section 5(i)(d) of The Prevention of Corruption Act,1947 (hereinafter referred to as the Old Act) vide judgment dated 16.09.1988 passed by the ld. Special Judge, City Civil & Sessions Court, Ahmedabad in Special Case No.5/1987. The charge framed against the accused is at Exh.6 and when the accused has assailed the legality and validity of the judgment and order of sentence, this Court shall have to deal with all relevant aspects pointed out by the accused considering the scheme of section 374 R/w section 386 of CrPC. 2. While holding the appellant accused (hereinafter referred to as the accused) guilty for the aforesaid offences, the ld. Special Judge sentenced the accused to undergo R/I for 1 ½ Years and to pay fine of Rs.3000/, I/d to further undergo R/I for 6 months for the offence punishable under section 420 of the Indian Penal Code. The ld. Special Judge awarded similar sentence in respect of offences punishable under sections 467, 468 and 471 of Indian Penal Code. The accused is also awarded sentence to undergo R/I for 1 ½ Years and to pay a fine of Rs.3,000/, I/d to undergo further R/I for 6 months for the offence punishable under section 5(2) read with section 5(i)(d) of the Old Act. It is ordered that these substantive sentences shall run concurrently. The amount of fine has been paid and at present the accused CR.A/786/1988 3/114 JUDGMENT is on bail granted by this Court (Coram: JP Desai & NB Patel, JJ) vide order dated 27.09.1988 while admitting the appeal preferred by the accused. 3. The case of the prosecution is reflected in the charge exh.6. However, to appreciate the arguments advanced by ld. Counsel Mr. DF Amin for the accused as well as by ld. Counsel Mr. Ravani appearing for Central Bureau of Investigation (CBI for short) and ld. Addl.PP Mr. AJ Desai for the State, it would be necessary to state the case of the prosecution in brief. (i) The accused, during the period of the offence committed, was serving as Upper Division Clerk (UDC) in Circle:III of Ward:C of Income-tax Department at Ahmedabad. That on or before 06.09.1986, as he had scope and access to take out the blank IT Refund Order Vouchers from the book containing such vouchers, had managed to take out one leaf from the blank vouchers bearing No.B/3-668395 from the Tax Refund Voucher Book No. AO- 36684. As per the norms and rules, IT Department is also simultaneously preparing advise note that can be sent either to State Bank of India (SBI for short) or to Reserve Bank of India (RBI for short) as the case may be. Such Advice Book having similar number normally is being kept with voucher book and prepared at the time of issuing IT refund voucher (order). The accused was also CR.A/786/1988 4/114 JUDGMENT able to take out a page of even number form the Advice Note Book without the knowledge of Mr. Hashmukhbhai D.Parmar- Tax Assistant serving in Circle:III (Ward:A). This Mr. HD Parmar has been examined as one of the prosecution witnesses. Of course, he was shown as suspect accused in the FIR registered by the CBI. This Mr. HD Parmar was in possession of the blank refund order Voucher Book and Advice Note Book as the same were handed over to him for administrative convenience by the IT Officer of the concerned ward. IT Officer was supposed to keep the blank book with such important documents, but the same was given to Mr. HD Parmar and were being kept in a cupboard in a room where office clerks of IT Ward: “A” & “C” were sitting. It is alleged that only one cupboard was having facility of lock. Keys were kept in one of the drawers. So, the clerks working and sitting in the branch of Circle:III if need be can have access to the cupboard even in absence of the person in charge of the keys. It is the say of the prosecution that the accused managed to take out the said blank IT refund order and blank Advice Note with mala fide intention and to use the same by forging a valuable security or say converting it into a valuable security. The accused filled in the details in both these documents by his hand for the amount of Rs.10 Lakh in the name of a fictitious and non-existent person named as Jayantilal Rasiklal Vyas. No person having name of Jayantilal Rasiklal Vyas CR.A/786/1988 5/114 JUDGMENT was even an assessee during that period. It is the further case of the prosecution that the accused then put the signature of JR Vyas by his hand and also forged the signature of IT Officer Mr. BK Shah who was otherwise authorized and empowered to sign such IT Refund Order voucher and Advice. These acts were done dishonestly, fraudulently and with an intention to cause loss or damage to IT Department as well as to RBI and/or to get advantage of the forgery. It is alleged that both these documents namely blank forms of IT refund vouchers as well as Advice were valuable securities and encashable instrument like a cheque which is a negotiable instrument. (ii) It is the say of the prosecution that in furtherance of the offence of forgery qua these two documents, the accused had approached Ellisbridge Co.Op.Bank Ltd., Ashram Road Branch, Ahmedabad (hereinafter referred to as the Bank) to obtain the said amount of Rs.10 Lakh with a view to encashing the forged IT refund voucher and opened SB Account No.3863 in the fictitious name of Mr. JR Vyas on 13.08.1986 with the help and intervention of his one of the co-employees PW Mr. RM Dave and one Mr. Chetan Patel who was serving as clerk in the said Bank. It is the say of the prosecution that the accused opened the said SB Account in the fictitious name of Mr. JR Vyas by putting a forged signature in the name of Mr. JR Vyas CR.A/786/1988 6/114 JUDGMENT on the specimen signature card and wrote a wrong address in the account opening form as well as in the specimen signature card as 3, Karnavati Society, Usmanpura, Ahmedabad. At the time of opening of the said SB Account, the accused deposited an amount of Rs.200/ in the Bank on the same day vide pay-in slip knowing fully well at that time that there is nobody like Mr. JR Vyas and even then he opened the account in the name of Mr. JR Vyas. Though the accused was knowing fully well that IT refund voucher bearing No. B/3-668395 is a forged, used it as genuine one and deposited and tendered the same on 06.09.1986 with the said Bank in his SB Account No.3863 opened by him earlier on 13.08.1986. Of course, there is no exact date or time when the accused had managed successfully to get the blank IT refund voucher and the page of advice note Book, but it is the say of the prosecution that it must have been managed any time prior to 06.09.1986. (iii) It is the say of the prosecution that pay-in slip of deposit of Rs.200/ as well as IT refund voucher were prepared by the accused by his own hand so that he can successfully cheat and misappropriate the amount of Rs.10 Lakh causing loss of the same amount to IT department and to RBI. According to the prosecution, after depositing the IT refund voucher with the Bank, he had gone to the said Bank on 11.09.1986 to withdraw the CR.A/786/1988 7/114 JUDGMENT said amount of Rs.10 Lakh. It is alleged that the accused had obtained passbook with necessary entry, but he could not get the amount as the Manager of the said Bank was not available in his chamber and as the proposed withdrawal was of a huge cash amount and also there was one endorsement of “stop payment” made on the ledger of the account of the accused i.e. SB Account No.3863. Of course, the accused was not informed about the endorsement made by the Manager, but the ledger-keeper PW Piyush R.Vyas did not disburse the payment and the accused was asked to come again on return of the Manager in the Branch. Meanwhile, some discreet inquiry had started about the issuance of IT refund order of huge amount of Rs.10 Lakh within the IT department and so also in RBI. The Branch Manager of the said Bank had also suspected something wrong with IT refund voucher deposited with his Branch in the early hours of 11.09.1986 and, therefore, he had made endorsement “stop payment” on the ledger account of the accused. Here, it would be relevant to note that for the reasons best known to the Branch Manager of the said Bank or any responsible officer of IT Department or of RBI, they had not dared to approach the police and it appears that if possible all of them collectively were in a mood to hush up the matter as there was no substantive loss or damage caused either to the Bank or to IT Department or to RBI. It emerges from the plain reading of FIR registered by CBI that an CR.A/786/1988 8/114 JUDGMENT informant; may be a person interested in saving his skin or a honest truth lover; had intimated CBI about the commission of the offence and, therefore, FIR came to be registered by Mr. MM Patel, PI, CBI on 19.09.1986 and the case was registered as RC No.33/1986 (Exh.76). CBI was able to unearth the crime. As the accused was a public servant, his conduct of making an attempt to defraud his own department and in turn to defraud the RBI by misappropriating the amount, according to the prosecution, was a criminal misconduct punishable under section 5(i)(d) R/w 5(2) of the Old Act. (iv) CBI recorded statements of number of witnesses, searched the house of the accused and after obtaining opinion from the handwriting expert as well as details from the witnesses who have been examined by the Investigating Officer, linked the accused with the crime and chargesheeted him for the above-said offences. It is not relevant at this stage to comment on the aspect whether CBI could have linked any other person with the present accused by adding the charge of criminal conspiracy punishable under section 120-B of IPC or by adding the charge of the offence punishable under section 34 of IPC because this aspect would be more relevant while dealing with the submissions made by ld. Counsel Mr. Amin appearing for the accused. However, it is important to note at this stage that RC No.33/1986 was CR.A/786/1988 9/114 JUDGMENT registered against the present accused as well as against one Mr. BK Shah, IT Officer and Mr. HD Parmar as they were the persons who were in actual possession and control of the original IT Refund Voucher Book and IT Advice Book and series in question. However, as a result of investigation, CBI submitted chargesheet on 16.09.1987 against the present accused only. There was no formal arrest either of Mr. BK Shah or of Mr. HD Parmar and they have been sited as witnesses and examined during the course of trial. In the present case, no formal report has been submitted to the Court under section 169 of CrPC or under any other provisions in reference to other two accused persons who were named in the complaint i.e. Mr. BK Shah and Mr. HD Parmar. (v) For the sake of brevity and convenience, the following facts/events with relevant dates may be mentioned: Date Particulars 06.09.1986 Mr. RM Dave introduced the accused to PW Mr. Chetan J.Patel and asked PW Chetan Patel to help the accused in opening the S/B Account in his Branch. On that day, with the help and assistance of Chetan Patel, the accused opened S/B Account in the said bank i.e. Ellisbridge Co.Op.Bank Ltd., Ashram Road Branch, Ahmedabad. 06.09.1986 Forged IT Refund Voucher for Rs.10 Lakh was tendered for clearance CR.A/786/1988 10/114 JUDGMENT with the Bank. This voucher was required to be sent to SBI, but it was erroneously sent by the said Bank to SBI and, therefore, SBI returned the said voucher to Ellisbridge Co.Op. Bank. 09.09.1986 On depositing the IT Refund Voucher, the account holder (accused) was given credit of Rs.10 Lakh on 08.09.1986, but as the voucher had returned uncleared sent by SBI, the amount of Rs.10 Lakh was debited again in the Ledger Account on 09.09.1986 and on that day, IT Refund Voucher was sent for clearance to RBI. 10.09.1986 As IT Refund Order was cleared by RBI, again a credit entry of Rs.10 Lakh was entered into the Ledger Account No.3863 which was in the name of Mr. Jayantibhai Rasiklal Vyas. 10.09.1986 Branch Manager of the said Bank namely Mr. Lakhani came to know about the credit of the amount of Rs.10 Lakh in the account of Mr. JRVyas. 11.09.1986 Mr. Lakhani inquired in the early morning at about 8.00 A.M. paying personal visit to 3, Karnavati Society, Usmanpura about Mr. Jayantilal Rasiklal Vyas and came to know that no person of this name is residing at Bungalow No.3 of Karnavati Society. So, he rushed to the Bank bit early at about 10.00 A.M. And according to this witness Mr. Lakhani, he had put an endorsement of “stop payment” in the ledger account of said Mr. JR Vyas. He thereafter asked the ledger-keeper to find out whether he had introduced Mr. JR Vyas for the purpose of opening of S/B Account and on discreet inquiry, he was able to find out that one another clerk namely PW Mr. Chetan J.Patel had brought the person who had opened the said account. On CR.A/786/1988 11/114 JUDGMENT that very day, the accused had gone to the Bank at about 12.30 A.M. And had demanded passbook of his S/B Account No.3863 and the passbook after putting relevant entries therein, was prepared and given to the accused. The accused had also asked for withdrawal of the amount, but he was asked to come on the next day by PW Mr. Piyush Vyas. as the withdrawal was of a huge cash amount. 11.09.1986 Deputy Director of Vigilance of IT Department informed about the fraud to one Mr. C.Shivdasan and asked him to inquire. Mr. C.Shivdasan made inquiry with Ellisbridge Co.Op.Bank on telephone through its Manager Mr. Lakhani and he also collected the original Refund Voucher Book and Advice Note Book from the cupboard of Mr. HD Parmar. 12.09.1986 Mr. C.Shivdasan went to RBI. Thereafter Mr. C.Shivdasan went to Ellisbridge Co.Op.Bank and collected relevant documents (exh.33, 34, 35 etc. from the Bank and served prohibitory order. 19.09.1986 PI Mr. MM Patel received information about the offence of forgery and attempt made to cheat the IT Department as well as RBI and after some discreet inquiry, registered FIR (exh.78) and seized about 9 articles by preparing seizure memo report from Mr. C.Shivdasan. 21/22.09.86 The documents collected by IT Department from Ellisbridge Co.Op.Bank, Ashram Road Branch, were handed over to CBI. 23.09.1986 The house of the accused was searched and some articles were seized including one Passport Size photograph of the accused. 25.09.1986 PI Mr. MM Patel went to RBI, CR.A/786/1988 12/114 JUDGMENT Ahmedabad and original Refund Order and two copies of Advice Note received by RBI, were recovered. 31.08.1987 IT Commissioner (Administration), gave approval and authorization to accord sanction to prosecute the accused. 01.09.1987 Inspecting Asstt. Commissioner, AR- III, accorded sanction to prosecute the accused. 4. To prove the case, the prosecution has examined 19 witnesses and as submitted by ld. Counsel appearing for the appellant Mr. Amin, ld. Counsel Mr. Ravani appearing for CBI, these witnesses can be divided into different sets and categories and their evidence should be appreciated individually and in reference to to the evidence led by other witnesses examined in that very set and thereafter ultimate evidence led by the prosecution needs detailed appreciation in its totality. The first set of evidence is of the witnesses namely the witnesses examined from Income-tax Department & RBI. The second set of evidence is of the witnesses namely of Co.Op.Bank and the third set of evidence is of other witnesses i.e. panchas, handwriting experts and investigating officer. 5. Mr. Amin has taken me through the oral as well as documentary evidence led and so also the relevant part of the judgment under challenge. The different set of facets of the evidence pointed out to the Court during CR.A/786/1988 13/114 JUDGMENT the oral submission by Mr. DF Amin for the appellant and Mr. YN Ravani for CBI, divides the witnesses in different sets. The first set of evidence is of the person- witnesses serving with Income-tax Department. The second set of the witnesses are the witnesses examined who were either the employees or the persons concerned with the opening of SB Account with the Bank. The third set of witnesses is of bit complex nature consisting of witnesses belonging to RBI, handwriting expert, panchas of panchanama drawn while obtaining specimen handwriting of the accused, panchas of seizure memo prepared by Investigating Officer, Indravadan G. Patel, Secretary of Karnavati Society and Investigating Officer. The prosecution has also placed reliance on the evidence of PW 14 Pramodkumar -Inspecting Asstt. Commissioner Exh.60 who had proved the sanction accorded to prosecute the accused under PCA Act and also the evidence of Investigating Officer. 6. The oral evidence of PW.1 Abdullakhan A.Pathan Exh.29, PW.2 Hashmukh.D.Parmar Exh.38, PW.3 Mukesh R. Jambusaria Exh.40, is of the persons who have clearly deposed against the accused and have identified the handwriting of the accused as person acquainted with the handwriting of the accused mainly on the forged documents tendered in evidence as special documents. These witnesses have also proved where and how the CR.A/786/1988 14/114 JUDGMENT original blank Income-tax Refund Voucher Book and Advice Note Book were being kept in one of the cupboards where these witnesses were sitting in a room of the Income-tax Office. Evidence of PW.9 Mr. BK Shah exh.48, once suspect and then examined as witness like Mr. HD Parmar, would also fall in the similar category because this witness has proved the signature on the forged Income- tax Refund Voucher of Rs.10 Lakh and on relevant advice, deposing that the said signature is not of his signature and those documents do not bear his signature by leading negative evidence with the evidence of PW.12 ITO Shri Shivdasan Exh.55 serving with the Head Quarter and of one Mr. CV Menon PW.16 Exh.65 respectively. 7. So far as second set of witnesses are concerned, they are PW.4 Chetan J.Patel Exh.41, Savings Bank Account clerk & SB Account Ledger Keeper of the Bank, PW.5 Piyush R.Vyas Exh.42, PW.6 Natvarlal C.Patel Exh.43 who opened the account accepting the account opening form and specimen signature card tendered to him, and PW.7 Narendra M.Lakhani Exh.44- Branch Manager of the said Bank. These witnesses have proved the documents recovered from the Bank concerning the opening of SB Account with the said Bank. Certain documents tendered in evidence by the prosecution has been admitted by the accused or they have been considered as undisputed documents. The ld. Trial Judge has evaluated all the dispute documents CR.A/786/1988 15/114 JUDGMENT along with the questioned documents examined by the handwriting expert i.e. PW.18 Suresh N.Lohiya Exh.71. One set of documents produced and tendered in evidence by the prosecution shows that Rs.200/ deposited by the accused probably was withdrawn from one another SB Account of the accused which the accused was holding with Canara Bank. Opinion expressed by the handwriting expert, search warrant, seizure memo, photograph of the accused, are there on record and their genuineness has not been assailed. Of course, relevance and evidentiary value has been put to stake by the defence side. The plain reading of the evidence of the witnesses examined from the Income-tax Department, Reserve Bank of India as well as of the witnesses from the Bank, has created an impression that they were not serious or otherwise sincere to see that the truth is unearthed as early as possible, perhaps because forgery and criminal wrong was detected much earlier before it would become too late. But according to me, such approach even if condemnable, would not go to the root of the strength of the case placed by the prosecution before the trial Court. 8. According to Mr. Amin, blank IT Refund vouchers taken out from the book by itself would not be a valuable security and the advice that are being sent to SBI or RBI for administrative reasons and smooth encashment of the refund vouchers issued by the Income-tax Department, also CR.A/786/1988 16/114 JUDGMENT would not be equated with the valuable security within the meaning of Indian Penal Code. The ld. Trial Judge has not considered all these crucial and legal aspects. There is no convincing evidence to prove that the accused had posed himself as JR Vyas and had presented any of the forged document with the Bank for any purpose or for the purpose of opening SB Account with the Bank. It is clear from the circumstances emerging from the evidence that Investigating Officer has implicated the accused by introducing the accused through photograph taken away by him during the search of the house only with a view to save one Chetan Patel who was a party and responsible for a fictitious account opened with the Bank and also to save Mr. RM Dave and Mr. HD Parmar- real offenders and the master mind behind the crime. The Investigating Officer ought to have chargesheeted Mr. Dave, Mr. Parmar and Mr. Chetan Patel by applying section 120-B of the Indian Penal code especially when there was no convincing evidence of a direct nature against the accused except the evidence of above three persons i.e. Mr. Dave, Mr. Parmar and Mr. Chetan Patel. The Investigating Officer has not even cared to submit a report that why Mr. BK Shah and Mr. HD Parmar have not been chargesheeted. At least, the ld. Trial Judge, on availability of evidence, ought to have joined them as an accused in exercise of the powers vested with the Court under section 319 of CrPC in the fact finding mission. There is no evidence CR.A/786/1988 17/114 JUDGMENT even of any bank employee which can be said to be of cogent nature that the accused had attempted to withdraw the amount of Rs.10 Lakh credited on 10.09.1986 at about 12.00 to 12.30 hours on 11.09.1986 otherwise it was possible for the Investigating Officer to recover the original passbook issued by the Bank to the accused and Bank Officer would not have permitted the accused to go out of the bank premises. Mr. Lakhani and Ledger Clerk Mr. Vyas were suspecting a fraud. Even the police in advance could have been called anticipating the