IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.531 of 2001 Deepak Kumar S/o Late O.P. Gupta R/o 186/2, Saket Purvi Amber Talab Roorkee, District Haridwar ….…..Appellant Versus State of Uttaranchal (now State of Uttarakhand) ……Respondent Sri Diwakar Chamoli and Sri Sachin Panwar, Advocates, present for the appellant. Sri Vivek Shukla, Advocate, present for the C.B.I. Hon’ble Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 10-5-2001 passed by Special Judge, Anti-Corruption, Dehradun in C.B.I. Case No.02/1996, whereby said court has convicted the accused/appellant Deepak Kumar under section 120-B of I.P.C. read with section 420, 467, 468, 471 I.P.C. and under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. Accused/appellant has been sentenced to rigorous imprisonment for a period of one year and directed to pay fine of ` 2 5,000/- u/s 120-B of I.P.C. r/w section 420, 467, 468, 471 I.P.C. and section 13(2) r/w section 13(1) (d) of the Prevention of Corruption Act, 1988, rigorous imprisonment for a period of one year and directed to pay fine of ` 5,000/- u/s 420 I.P.C., and rigorous imprisonment for a period of one year and directed to pay fine of ` 5,000/- u/s 467 r/w 471 I.P.C., by the trial court. 2) Heard learned counsel for the appellant and the learned counsel for the C.B.I., and perused the lower court record. 3) Prosecution story, in brief, is that one P.K. Jain (co-accused), in the year 1993, while posted as Assistant Manager, Punjab National Bank (for short P.N.B.), Branch B.T. Ganj, entered into criminal conspiracy with accused/appellant Deepak Kumar, and dishonestly and fraudulently prepared five credit advices without their being any deposit in the Bank. The credit advice dated 2-7-1993 for an amount of ` ten Lacs related to P.N.B., Branch Gordhanpur, credit advice dated 23-7-1993 for an amount of ` five Lacs related to P.N.B., Branch Niranjanpur, and credit advice dated 28-8-1993 for an amount of ` five Lacs related to P.N.B., Branch Gordhanpur. Two more credit advices dated 28-9-1993 for an amount of ` two Lacs 3 and dated 12-11-1993 for an amount of ` five Lacs, were further prepared. Thereafter, co- accused P.K. Jain got opened Anupam Account No.12 at P.N.B. Gordhanpur, and Anupam Account No.3 at P.N.B., Branch Niranjanpur, in the fictitious names of Navneet Kumar and Ashok Kumar. A third Anupam Account No.15 in Branch Gordhanpur was opened in the name of accused/appellant Deepak Kumar in which fake credit advice dated 28-8-1993 for an amount of ` 5.00 Lacs drawn from the Branch Gordhanpur of the Bank. Thereafter, a cheque book bearing S. No.534201 to 534210 was issued in the name of accused/appellant Deepak Kumar from Branch Gordhanpur. Co-accused P.K. Jain deposited fake credit advices in the aforesaid fake account numbers and withdrew the amount. As against the present appellant, it is alleged that he in conspiracy with co-accused P.K. Jain withdrew more than ` 5.00 Lacs and that he received amount of ` 50,000/- through cheque no.534205 dated 1-3-1995, ` 50,000/- through cheque no.534206 dated 22-6-1995 and further ` 50,000/- vide cheque no.892990 dated 22-6-1995. The matter was investigated by Central Bureau of Investigation (for short C.B.I.) who registered Crime No.RC 30(A)/95-DAD on 2-11-1995 against co-accused P.K. Jain, relating to offences punishable u/s 120-B, 420, 467, 468, 471 I.P.C. and u/s 13(2) r/w 13(1)(d) of Prevention of 4 Corruption Act, 1988. After investigation, charge sheet (Exhibit A-197) was filed against co- accused P.K. Jain (who was named in the first information report), and also against accused/appellant Deepak Kumar. 4) The trial court, after giving necessary copies to the accused, as required u/s 207 of Cr.P.C., and after hearing the parties, framed charge of offences punishable u/s 120-B I.P.C. r/w 420, 467, 468, 471 I.P.C. and section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, u/s 420 I.P.C, and u/s 467 r/w 471 I.P.C., to which he pleaded not guilty and claimed to be tried. (Separate charge was framed against main accused P.K. Jain, who also pleaded not guilty and claimed to be tried). On this, prosecution got examined P.W.1 V. Nagraja, the then Zonal Manager of Punjab National Bank, P.W.2 A.S. Arora, the then Senior Manager of the Bank, Branch B.T. Ganj, P.W.3 Y.R. Sharma, Chief Manager of the Bank, P.W.4 Sri Chand Samtani, Assistant Manager of the Bank, Branch B.T. Ganj, P.W.5 M.L. Gupta, Branch Manager, Branch Niranjanpur, P.W.6 Anil Kumar Gupta, Branch Manager of Roorkee Branch of the Bank, P.W.7 Rishal Singh, Cashier of the Bank, P.W.8 Pankaj Kumar Saini, a shopkeeper, P.W.9 Smt. Reena Agarwal, Clerk of the Bank, P.W.10 Bheem Bahadur, Head Cashier, P.W.11 Kripal 5 Singh Buddhi Raja, Branch Manager, Gordhanpur, P.W.12 Dr. S.C. Mittal, Forensic Expert, P.W.13 Ashok Kumar, a shopkeeper, P.W.14 Smt. Raj Jain, landlady of accused P.K. Jain, P.W.15 Karan Singh, Daftari of the Bank, P.W.16 Chuni Lal Sethi, a shopkeeper, P.W.17 Dharampal, another clerk of the Bank, P.W.18 Sanjay Kumar Gupta, yet another clerk of the Bank/Cashier, P.W.19 Narendra Kumar Katariya, also Cashier of the Bank, P.W.20 Pankaj Kumar Gupta, a shopkeeper, P.W.21 Rajeev Rana, Officer of the Punjab National Bank, Branch Niranjanpur, P.W.22 Surendra Kumar, Head of Anaj Mandi and P.W.23 Rajesh Chehal of Central Bureau of Investigation. 5) Prosecution evidence was put to the accused persons u/s 313 Cr.P.C., in reply to which they pleaded innocence. However, no evidence in defence was adduced. After hearing the parties, the trial court found both the accused guilty of charge framed against them and convicted them accordingly. 6) Main accused P.K. Jain filed separate appeal (CRLA No.510 of 2001), which stood abated after his death during pendency of the appeal. Accused Deepak Kumar filed this appeal which is being disposed of after hearing the parties. 6 7) On behalf of the appellant, attention of this Court is drawn to Section 13 of Prevention of Corruption Act, 1988 and it is pointed out that sub-section (1) and sub-section (2) of section 13 of the Act refer to a public servant. Co-accused P.K. Jain was the public servant. Present accused/appellant Deepak Kumar is not a public servant. It is further submitted that it was accused/appellant Deepak Kumar who infact blowed the whistle against P.K. Jain, and he had no complicity in the case. In this connection, attention of this Court is drawn to copy of letter dated 12-10-1995 signed by accused/appellant Deepak Kumar to the Regional Manager of the Punjab National Bank, Haridwar, reporting about an account being opened by co-accused P.K. Jain in the false name of accused/appellant Deepak Kumar, whereafter the matter was enquired into and first information report was got lodged with the C.B.I., by the Bank. Copy of the statement of accused/appellant Deepak Kumar, which was recorded by the Investigating Officer during investigation, and marked as Exhibit B-2 in the lower court record, was read over before this Court in which the accused had taken this plea on 28-12-1995 stating as to how co-accused P.K. Jain took undue advantage of his acquaintance and got a false account opened in the name of present appellant. 7 8) In support of above argument, Sri Diwakar Chamoli referred Exhibit A-2 on the record, which is extra judicial written confessional statement made by co-accused P.K. Jain to his Regional Manager, Haridwar. This document is dated 4-9-1995. In this document, co-accused P.K. Jain has admitted that he got opened two Anupam Accounts in the name of Navneet and accused Deepak Kumar with false advices, in the year 1993. The said accused has further admitted his guilt as to how he withdrew the money. In aforesaid document (Exhibit A-2) P.K. Jain further promised that he would deposit with the Bank the entire amount. 9) Statement of P.W.3 Sri Y.R. Sharma, Chief Manager of the Punjab National Bank, in his cross-examination, admitted that co-accused P.K. Jain admitted before him that advices in question were prepared by him. He further admitted that co-accused P.K. Jain gave written confessional statement to him also. P.W.3 Sri Y.R. Sharma, Chief Manager of the Bank further stated that after enquiry by the Head Office of the Bank, only P.K. Jain was found the person responsible for the fraudulent transactions. 10) Perusal of Exhibit A-119 and A-120 read with the statement of P.W.11 Kripal Singh Budhi Raja, the Branch Manager of P.N.B, 8 Branch Gordhanpur, further discloses that in the documents, which relate to the account of Deepak Kumar, the cash slips contained only handwriting of P.K. Jain and his signatures. Apart from this, statement of P.W.20 Pankaj Kumar Gupta, who was given payment of ` one Lac by P.K. Jain, regarding electrical and computer wiring, etc. in the house of Mr. Jain, has stated that when he asked P.K. Jain as to who is Deepak Kumar, drawer of the cheque, Mr. Jain told him that he was his relative. In the cross examination, this witness (P.W.20) has admitted he does not know Deepak Kumar who had signed the cheque. This statement is made by the witness with reference to cheque Exhibit 57 in which accused Deepak Kumar had admitted his signatures. The argument advanced on behalf of the accused/appellant is that though the signatures in the cheque are admitted to the accused, but accused on being asked by P.K. Jain (who was Manager of the Punjab National Bank, B.T. Ganj, where the present appellant had his account due to which he had acquaintance with the Manager), signed the papers, as he had faith in him. It is further pleaded that the present accused/appellant got cheated as he was unaware of the real activities of P.K. Jain. 9 11) Having considered the submissions of learned counsel for the appellant and learned counsel for the C.B.I. and having discussed the evidence on record as above, this Court finds little mens rea on the part of accused/appellant Deepak Kumar to constitute conspiracy punishable u/s 120-B of I.P.C. with co-accused P.K. Jain in respect of charge of offence punishable u/s 120-B r/w section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. Also no cheating punishable u/s 420 of I.P.C. appears to have been committed by the appellant, as such accused/appellant Deepak Kumar cannot be said to be guilty of charge of offences punishable u/s 120-B r/w 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, and that of section 420 and 468 I.P.C. To that extent, the appeal deserves to be allowed. However, as to the offence punishable u/s 467 r/w 471 I.P.C., this Court finds no error of law, committed by the trial court, as admittedly the accused/appellant had signed the cheques by which the amount was withdrawn by co-accused P.K. Jain from the Anupam Account opened in the name of the present appellant. But since the appellant has not taken any monetary benefit out of the transaction, this Court is of the view that reduction of sentence to the period already undergone and maintaining the fine, directed to 10 be deposited by the trial court, would meet the ends of justice. 12) Accordingly, the appeal is partly allowed. The accused/appellant Deepak Kumar is acquitted of charge of offence punishable u/s 120-B r/w 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and that of section 420 and 468 I.P.C. However, the conviction recorded by the trial court in respect of offence punishable u/s 467 r/w 471 I.P.C. is maintained. To that extent, the appeal is dismissed. However, the sentence awarded to the accused/appellant Deepak Kumar is reduced to period undergone (i.e. four months, which he has already undergone, during investigation and trial), and fine as directed to be paid by the trial court. Lower court record be sent back. (Prafulla C. Pant, J.) 12.12 11 .20 Rajni