IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.949 OF 2002 Shri Vilas Narsaiya Sandal, aged about 52 years, residing at Plot No.2, Block No.5, Ganesh Building, Swargate Nagar, Hotgi Road, Solapur. (at present lodged in ...Appellant Central Prison, Yerawada, Pune) Ori.Accused Versus 1.The State of Maharashtra 2.C.B.I., A.C.B., Bombay. ...Respondents WITH CRIMINAL APPEAL NO.779 OF 2002 Shri Vijaykumar Sidramappa Poredi, Age: 55 years, R/o.18, SBI Colony No.2, Bhavani Peth, Solapur. (At present lodged in Solapur ...Appellant Central Prison) Ori.Accd.No.1 Versus The State of Maharashtra ...Respondent ...... Mr.Girish Kulkarni as amicus curiae for Appellant in Cri.Appeal No.949/02. Mr.P.P.Hudlikar with Mr.Agandsurve for Appellant in Cri.Appeal No.779/02. Mr.Y.S.Shinde, A.P.P. for Respondent No.1/State in both matters. Mr.R.F.Lambay, P.P. for Respondent No.2. : 2 : ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JANUARY 22, 2007. JANUARY 22, 2007. JANUARY 22, 2007. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Both these Appeals are being disposed of by this common Judgment. Appeal No.779/02 is filed by accused No.1, whereas, Appeal No.949/02 is filed by accused No.4. Accused No.4 had presented this Appeal through Advocate Shri K.M.Villkhoo. However, when this Appeal reached for hearing on August 24, 2006, it transpired that the said Advocate was unavailable. Accordingly, Court notice was issued to the accused No.4 to engage another Advocate on or before 7th September 2006, failing which, the Court would proceed to appoint Mr.Girish Kulkarni, Advocate, to espouse the cause of accused No.4 as amicus curiae. Notice so issued came to be duly served on accused No.4. Inspite of that, no other arrangement was made. As a result, Mr.Girish Kulkarni, Advocate was appointed as amicus curiae to espouse the cause of the accused : 3 : No.4 and hearing of the Appeal was proceeded as the Appeals pertain to year 2002 and the accused was in jail. 2. The Appellants, along with two others, were tried by the Special Court at Solapur in Special Case No.18/94 for offence punishable under Sections 420, 468, 471, 477A r/w 120-B of the Indian Penal Code, 1860 (hereinafter referred to as ‘the I.P.C.’) and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the Act’). 3. It is the prosecution case that all the accused at the relevant time were working in State Bank of India, Treasury Branch, Solapur between the period 1989 to 1992. Accused No.1 was working as Accountant; accused No.2 as Passing Officer; accused No.3 as Deputy Head Cashier and accused No.4 as Clerk-cum-typist. It is alleged that on 11th September 1992 one of the Bank customer Mr.Ramesh Shetty Bandpatte (PW 1) complained about withdrawal of Rs.30,000/- (Rupees Thirty Thousand) : 4 : from his account without his knowledge or instructions. On that basis, enquiry was initiated by the Manager of the Bank Mr.Sharad Laxman Kulkarni (PW 30). Soon thereafter, complaints from other customers were received about difference of balance amount between their passbooks and ledger folios, although they had never withdrawn the amount referred to in the said books. The complaint received from various customers was forwarded to the Divisional Manager by the Branch Officers. Having regard to the seriousness of the matter, Manager Mr.Kulkarni (PW 30) and the Manager, Personnel Banking Division of Treasury Branch, Solapur Mr.Subhash Gopalrao Bhalwankar (PW 24) were assigned with the enquiry into the allegations made by various customers. At the end of their enquiry, fraud to the extent of Rs.17,00,000/- (Rupees Seventeen Lakhs) committed by the bank officials was unravelled. Amounts were withdrawn from several accounts under 123 withdrawal slips which aggregated to Rs.17,00,000/- (Rupees Seventeen Lakhs). Most of the withdrawal slips were in the handwriting of accused No.4 and the slips were verified and passed by accused No.1 : 5 : and accused No.2. In these Appeals, we are concerned only with accused no.1 and accused No.4. The Bank Officials PW 30 and PW 24 submitted detailed enquiry report to the Divisional Officer on 14th September 1992. 4. As it was a case of offence committed by the accused, First Information Report (F.I.R.) was registered by Jyotikumar (PW 31) bearing No.RC 66/A/92-Bom., on 15th October 1992. PW 31 then carried on the investigation. He visited Solapur and examined about 21 witnesses. He also arrested accused No.4, who admitted his signatures and thumb impressions. The questioned documents on the basis of which withdrawals were made from different accounts along with the admitted signatures and thumb impressions of accused No.4 were forwarded to the Government Examiner. The Government Examiner in turn submitted his report Exhibit 262. 5. In substance, the prosecution case against accused No.1 and accused No.4 is that accused No.4, while working as clerk in the concerned branch, : 6 : falsely signed various pay-in slips (withdrawal slips) pertaining to various customers. The said pay-in slips were filled in and signed fraudulently by accused No.4. Accused No.4 himself accepted the amount against such fraudulent withdrawal slips. 6. Insofar as accused No.1 is concerned, his role was that of verifying and passing the withdrawal slips. Accused No.1 is linked with withdrawal slips Exhibits 117, 176, 180 to 186 and 189. He had signed those documents after verification with the specimen signatures of the customers in the bank as Passing Officer, inspite of being aware of the fact that the withdrawal slips presented for withdrawal of cash amount did not bear genuine signatures of the concerned customers. 7. It is the prosecution case that all the accused, in furtherance of common intention and criminal conspiracy with each other in order to defraud various customers, had fraudulently prepared pay-in slips and had passed the same and received amounts therein, as a result of which, : 7 : defrauded the Bank to the tune of Rs.17,00,000/- (Rupees Seventeen Lakhs). 8. The accused denied the charge and claimed to be tried. The prosecution to substantiate case against all the four accused examined in all 32 witnesses and produced documentary evidence as well. PWs. 1, 2 and 4 to 21 are the account holders in the said Branch. PWs. 3, 22 to 30 were the Bank Officials. Amongst them, PWs 22 and 23 were the Sanctioning Authority. PW 31 is the Investigating Officer and PW 32 is the handwriting expert. The Trial Court considered the entire gamut of the evidence to hold that insofar as accused Nos.2 and 3 are concerned, there was no clear evidence about their complicity in the commission of the crime or for that matter, being party to the conspiracy. Insofar as accused No.4 is concerned, the Trial Court found that there was clinching evidence to prove beyond doubt the involvement of the said accused in the commission of the offence, for which he was being tried. For that, the Trial Court has placed reliance on the evidence of the prosecution witnesses as well as : 8 : documentary evidence. Insofar as accused No.1 who discharged the role of Passing Officer, the Trial Court has found him guilty along with accused No.4 being party to the criminal conspiracy. The Trial Court has essentially found that from the documentary as well as ocular evidence, it was abundantly clear that accused No.1 had knowledge about the illegal activity and was party to the conspiracy. For that, the Trial Court not only relied on the oral evidence but on the documentary evidence such as withdrawal slips Exhibits 117, 176 and 185. Insofar as these three slips are concerned, the Trial Court has found that signatures on these withdrawal slips, in no manner, correspond or tally with the specimen signatures of the concerned customers available in the Bank’s record. As it was clear case of dissimilarity of signatures, the Court has inferred that inspite of such suspicious circumstance, accused No.1 having allowed the slips to be passed as genuine ones, has done that only to facilitate the crime with knowledge. Consistent with the findings on fact, the Trial Court proceeded to convict accused No.1 as well as accused No.4 of the alleged offence. : 9 : Insofar as accused No.1 is concerned, except the charge of Section 120-B of I.P.C., on all other counts, he has been sentenced to suffer rigorous imprisonment for three years each and to pay fine of Rs.10,000/- (Rupees Ten Thousand), in default, to undergo further rigorous imprisonment of six months. Insofar as offence of Section 120-B of I.P.C. is concerned, accused No.1 has been sentenced to suffer rigorous imprisonment for one year and fine of Rs.10,000/- (Rupees Ten Thousand), in default, to undergo further rigorous imprisonment for a period of three months. With regard to offence under Section 13(2) read with Section 13(1)(d) of the Act, the fine amount as against accused No.1 is stipulated as Rs.50,000/- (Rupees Fifty Thousand), in default,to undergo further rigorous imprisonment for one year. Insofar as accused No.4 is concerned, except the offence of Section 120-B of the I.P.C., for all other offences, he has been ordered to suffer rigorous imprisonment for a period of seven years and fine in the sum of Rs.1,00,000/- (Rupees One Lakh), in default, to suffer further rigorous imprisonment for one year on each count. Insofar : 10 : as offence under Section 120-B is concerned, accused No.4 is sentenced for a period of one year and fine in the sum of Rs.1,00,000/- (Rupees One Lakh), in default, to suffer further rigorous imprisonment for a period of further one year. Insofar as offence under Section 13(1)(d) read with Section 13(2) of the Act, accused No.4 has been ordered to suffer rigorous imprisonment for seven years as well as fine of Rs.15,00,000/- (Rupees Fifteen Lakhs), in default, to suffer rigorous imprisonment for a period of two years. 9. The above decision is the subject matter of challenge by way of two separate Appeals of accused Nos.1 and 4. I shall first broadly advert to the manner in which the Trial Court has analysed the matter to record finding of guilt against the Appellants herein (accused Nos.1 and 4). In the first place, the Trial Court has compared the questioned pay-in slips (withdrawal slips) with the specimen signatures of the concerned customers available in the bank records. The specimen signature of PWs.1, 2, 4, 5, 11, 14, 20 and 21 have been produced on record as Exhibit Nos.57, 63, 67, : 11 : 73, 88, 98, 116 and 129 respectively. In addition, the specimen signature of one other customer N.S.Maniyar who is not examined, was produced as Exhibit 112. The evidence regarding account numbers of the concerned prosecution witnesses has also come on record. The Trial Court then went on to analyse the evidence of respective bank customers, who have been examined as prosecution witnesses, in particular, PWs. 1, 4, 5, 6, 7, 10, 11, 18, 19, 20 and 21. Each of them have disputed their signature occurring on the concerned withdrawal slips. Withdrawal slip Exhibit 55 is ascribed to PW 1. Similarly, withdrawal slip Exhibit 176 to PW 2, Exhibit 185 to PW 4. Exhibits 156, 172, 180, 181, 195 to 210 (in all 15) to PW 5. Exhibits 187 to 189 to PW 18. Exhibits 118, 119, 120 to PW 19. Exhibit 117 to PW 20. Exhibits 127, 128, 215 to 220 to PW 21 and Exhibits 118, 119 and 120 to N.S.Maniyar who has not been examined. I have already adverted to the evidence produced by the prosecution regarding specimen signature card of the respective Plaintiffs in the earlier part of this Judgment. The Trial Court has then analysed the evidence of Bank Officials, particularly, PW 25 : 12 : to PW 30, who have corroborated the assertion made by the Bank customers. These Bank Officials (PW 25 to PW 30) have asserted that the handwriting and the signatures appearing on the questioned withdrawal slips were similar to that of accused No.4. The Trial Court has then referred to the evidence of handwriting expert (PW 32) as well as the report and opinion (Exhibit 262) given by him, which supports the version of Bank Officials. PW 25 has spoken about Exhibits 156, 157 and 158. PW 26 has spoken about Exhibit 161 as also Exhibits 162 to 172. PW 27 has spoken about Exhibits 116, 119 and 174. PW 28 about Exhibits 176 and 117, PW 29 about Exhibits 100 to 189 and PW 30 about Exhibits 199 to 225. Thus, taking into account the oral as well as documentary evidence, which clearly indicated the involvement of accused No.4, the Trial Court found him guilty of the alleged offence. 10. Insofar as accused No.1 is concerned, the Trial Court besides referring to the above evidence, has also referred to the evidence of PW 24 and in particular, PW 28 and PW 29. PW 24 has : 13 : given the procedure of verification done by the Passing Officer of the pay-in slips (withdrawal slips). Accused No.1 although admitted having connection with passing of Exhibits 117, 176, 182 to 186 and 189, however, pleaded that he had no knowledge about the illegal activity of the Accused No.4 and had in good faith verified and passed the concerned withdrawal slips on the basis of which, the accused No.4 withdrew the amount referred to in the respective slips. It was contended on behalf of the accused No.1 that at best, it was a case of negligence and no mens rea can be attributed to accused No.1. The Trial Court, however, has negatived that plea not only on the basis of the oral evidence but the documentary evidence in the shape of withdrawal slips and the specimen signature of the concerned Bank customer maintained in the Bank record. It has been found by the Trial Court as of fact that at least in five slips, it was evident that the signatures on the withdrawal slips were materially different from the specimen signatures of the concerned customer in the bank record. The Court noted that such signatures on the withdrawal slips surely raised suspicion, but : 14 : the accused No.1 allowed even those withdrawal slips to pass-off as genuine ones - which resulted in withdrawal of the amount referred to therein by accused No.4. Insofar as accused No.1 is concerned, the Trial Court has noted that out of the five withdrawal slips referred to earlier, the accused No.1 was associated with the transaction in relation to Exhibits 117, 176 and 185 and was thus, party to the conspiracy. 11. During the course of hearing of this Appeal, it transpired that the English version of the typed evidence was incorrect. Accordingly, the original Marathi version was preferred and relied upon at the hearing of the Appeal. At the same time, English translation of the evidence was called from the Office of the Official Translator of the High Court and after the same became available, it has been taken on record with the consent of both sides. 12. At this stage, it will be apposite to remind the subordinate Courts in the State, of the provisions in Sections 275 to 278 of the Code of : 15 : Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). Section 275 relates to the manner in which record in warrant-cases tried before a Magistrate, is to be maintained. In such proceedings the evidence of each witness is required to be taken down in writing either by the Magistrate himself or by his dictation in open Court, as the examination proceeds. In case, the Magistrate is unable to do so himself owing to his physical or other incapacity, such recording is required to be done by an officer of the Court appointed by the Magistrate under his direction and superintendence. Sub-section (2) of Section 275 obligates that after the Magistrate causes the evidence to be taken down, he shall record a certificate that the evidence could not be taken down by himself for the reasons referred to in sub-section (1). Primarily, therefore, the obligation of taking down the evidence of each witness as the examination proceeds, is on the Magistrate. What is relevant to notice is the mandate of sub-section (3) of Section 275. It obligates that the evidence shall ordinarily be taken down by the Magistrate in the form of a : 16 : narrative or he may cause any part of such evidence to be taken down in the form of question and answer. The evidence so taken down is required to be signed by the Magistrate which then forms the part of the record. Section 276 of the Code postulates that in all trials before a Court of Session, the evidence of each witness should be taken down in writing by the presiding Judge himself, as the examination proceeds. It also enables the presiding Judge to take down the evidence by his dictation in open Court or under his direction and superintendence by an officer of the Court appointed by him in that behalf. Sub-sections (2) and (3) of Section 276 are analogous to sub-sections (3) and (4) of Section 275. Section 277 provides that if the witness gives evidence in the language of the Court, it shall be taken down in that language. In case, the witness gives evidence in any other language, the Judge may if practicable, take down in that language and if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds. That will have to be signed : 17 : by the Magistrate or the Presiding Judge which would then form part of the record. Same provision requires that if the evidence is taken down in a language other than the Court, a true translation thereof in the language of the Court shall be prepared as soon as practicable, to be signed by the Magistrate or the Presiding Judge and which would form part of the record. Indeed, the proviso to Section 277 stipulates that the requirement of translation of the evidence in the language of the Court if it is taken down in English can be dispensed with if the parties so opt. 13. What is relevant to be observed by the Subordinate Courts is the requirement of Section 278 of the Code. It mandates that as the evidence of each witness recorded under Section 275 or 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. Invariably, the record of cases produced before this Court at the hearing, do not fulfil this requirement. Whereas, if this requirement was to be observed in its letter and : 18 : spirit, the situation as has occurred in the present case, would have been avoidable. This is so because the English translation of the evidence taken down by the Judge is not accurate at more than one place and on material points, when compared with the same evidence of the concerned witness recorded by the Court in Marathi. On compliance of the requirement under sub-section (1) of Section 278, it is not only the accused but also the witnesses gets opportunity to know as to what has been taken down as his evidence by the Court. Sub-section (2) of Section 278 provides that if the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. If this requirement is fulfilled, there would be no occasion for the Appellate Court to ponder on the issue of correctness of the version available in the record. I thought it necessary to elaborate on this matter for the future guidance of the lower Court Judges who are called upon to take down : 19 : evidence of the witnesses in every singular criminal case. 14. Be that as it may, after having closely analysed the evidence on record and juxtaposed with the finding of fact reached by the Trial Court, I have no hesitation in taking the view that the conclusion reached by the Trial Court is not only possible view but is unassailable. The prosecution has proved the questioned 123 withdrawal slips. The Bank customers in whose name the withdrawal slips were tendered have themselves come forward and deposed about the falsity of the documents. They have asserted that the signatures and writing on the concerned withdrawal slips did not belong to them and they had no knowledge about the withdrawals at all. The oral evidence of these witnesses is corroborated by the evidence of Bank Officials, who have deposed that the handwriting on the concerned withdrawal slips were that of accused No.4. This assertion is supported by the report (Exhibit 262) and opinion of the handwriting expert (PW 32) and his evidence in that behalf. Besides, the specimen signatures of the concerned customers : 20 : available in the Bank record have been proved and accepted, which supports the claim of the Bank customers examined as prosecution witnesses. 15. The Trial Court, out of 123 withdrawal slips accepted the prosecution case at least in relation to Exhibits 55, 176, 185, 156, 174, 180, 181, 195 to 210, 187 to 189, 118, 119, 120, 117, 127. For the time being, we shall confine our discussion to Exhibit Nos.176, 185 and 117, as these Exhibits are common to both the accused before this Court (i.e. Accused Nos.1 and 4). The case spelt out by the prosecution on the basis of these Exhibits has been accepted by the Trial Court. In other words, it will not be necessary for us to analyse the entire evidence. It would be enough for this Court even if this Court was to hold that the involvement of accused Nos.1 and 4 is established in at least one such transaction as has been proved by the prosecution beyond reasonable doubt. This would assist in only curtailing the length of the Judgment. 16. We shall first straightaway advert to the : 21 : withdrawal slip Exhibit 176. The said withdrawal slip was presented by accused No.4 which related to account of Mohanlal A.Sondekar (PW 2). PW 2 has disclosed the Account number as 88/22678. He has stated that on reading the news item dated 16th September 1992 regarding mismanagement in State Bank of India, Solapur Treasury Branch, he rushed to the Bank to ascertain the entries in the ledger book of his account. On such enquiry, it transpired that amount of Rs.20,000/- (Rupees Twenty Thousand) was withdrawn from his account under withdrawal slip Exhibit 176 on 22nd August 1992, which did not bear his signature. This fact was immediately reported to the Branch Manager. He has reiterated in his evidence that the questioned withdrawal slip dated 22nd August 1992 was not under his signature, for which reason, it was a false, forged and bogus document. His version is corroborated by the specimen signature in Banks record Exhibit 63 proved by him. On comparing Exhibit 63 with Exhibit 176, even a layman can make out the difference in the two signatures. There is no similarity at all. The Bank Official (PW 28) has corroborated the assertion of PW 2. He has : 22 : proved the questioned document Exhibit 176. PW 28 has spoken about the contents of the said document Exhibit 176. He has stated that the pay-in slip was in the handwriting of accused No.4. It also bears the signature of accused No.5 for having posted and having given token. He has identified the signature and handwriting of accused No.4. He claims that he and accused No.4 were working for about ten years together and he was familiar with his signature and handwriting. He has further deposed that the amount as per the withdrawal slip (Exhibit 176) was paid to