Case: S.V.L.Murthy Vs. State Rep.By Cbi,Hyderabad

was on leave at the instance of Accused No.1. He must have developed grievance against the Accused No.4 as regards the stoppage of the said facility. If immediately thereafter the said facility had been restored by the Accused No. 4, a stand taken by him that it was done under the oral instructions of the higher authorities appears to be plausible.22. The prosecution apart from the fact that it had utterly failed to bring on record any evidence of conspiracy must also be held to have failed to bring on record any evidence of wrongful gain so as to attract the provisions of the Prevention of Corruption Act, 1988 or otherwise.23. The entire argument of Mr. B. Datta, learned Additional Solicitor General as also the findings arrived at by the learned Special Judge as also the High Court proved the ingredients of offence under Section 409 of the IPC. The accused persons, however, have not been charged for commission of the said offence. Conspiracy by and between the Bank officials and the Accused Nos. 1 to 3 has been stated to be for commission of the offence of cheating for the purpose of arriving at a finding that there has been a conspiracy so as to cheat the Bank. It was necessary for the prosecution to establish that there had been a meeting of mind at the time when the facility had been granted. Such meeting of mind on the part of the accused persons has not been proved. Furthermore, the prosecution case even if given face value and taken to be correct in its entirety does not lead to a finding that even Accused Nos. 1 to 3 had any wrongful intention at the time when the contract was initiated.24. We do not mean to suggest that in the matter of operating the account, no offence might have been committed by them. The offence, if any, it will be bear repetition to state, was committed under Section 409 of the IPC.25. The learned Special Judge as also the High court unfortunately proceeded on the basis that the cheque discounting facility could under no circumstances be made available to them.26. We do not think that, that was a correct approach. The RBI guidelines categorically show that it was not a wrong practice. It is one thing to say that there has been an abuse of a prevalent banking practice for the purpose of causing wrongful loss to the Bank and causing wrongful gain to others but it is another thing to say that by reason thereof, the ingredients of cheating are attracted.27. We have noticed hereinbefore that learned Additional Solicitor General merely took us through the judgment of the learned Special Judge as also the High court. His entire contention revolved around the commission of criminal breach of trust. Unfortunately, they have not been charged therewith. It would bear repetition to state that accused persons have not been charged under Section 409 of the IPC; even the Accused Nos. 1 to 3 have not been charged for entering into a conspiracy with Accused Nos. 4, 5 and 6 in respect of commission of offences under the Prevention of Corruption Act.28. It is in the aforementioned situation, we are of the opinion that the judgment of conviction and sentence cannot be upheld. So far as the submission of learned Additional Solicitor General that this Court, having regard to the concurrent findings of fact as regards the commission of offence arrived at by the learned Special Judge as also the High Court, should not exercise its discretionary jurisdiction under Article 136 of the Constitution of India is concerned, we do not find any substance therein. Appellants have been charged under wrong provisions. Proper charges have not been framed against them.29. In Lala Ram & Ors. vs. State of U.P. (1990) 2 SCC 113 , whereupon strong reliance has been placed by the learned Additional Solicitor General, this Court noticing various decisions opined that when there are various infirmities, the Supreme Court can interfere.It is, therefore, a case which comes within the purview of the dicta laid down therein. It is significant to notice that in that case itself this Court keeping in view the findings arrived at therein allowed the appeal preferred by the accused persons and set aside the judgment of conviction.It is one thing to say that ordinarily a concurrent finding of fact shall not be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India but it is another thing to say that despite opining that accused are entitled to acquittal, a judgment of conviction passed against them should be upheld. In fact, the jurisdiction of this Court must be exercised wherever it is required to do so for securing the ends of justice and to avoid injustice.30. The upshot of our discussions is:- (a) The prosecution did not lay down any foundational facts to arrive at a finding of dishonest intention on the part of the appellants, nor any such finding has been arrived at by the trial court or the High Court.(b) The circumstances which were considered sufficient to bring home the charges against the appellant were: the cheques of accused Nos. 1, 2 and 3 were discounted after purchasing cheques; cheques were deposited after a gap of 1 to 4 days; only later the amounts were deposited in the account which circumstances, in our opinion, are not sufficient to hold the appellants guilty for commission of offence under Section 420 of the IPC as all the actions on the part of the bank officers were in consonance with the long standing banking practice.(c) Accused No. 4 had taken care of having adequate security to ensure that the bank does not suffer any loss, the gain if any was caused to the Bank.(d) Appellants acted on instructions by the higher authority.(e) The prosecution evidence does not establish any conspiracy on their part vis-à-vis Accused Nos. 1, 2 and 3.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]21. It may be that there had been certain procedural irregularities in the transaction.However, sufficient evidence is available on record to show that the Officers had done so for the purpose of promoting the business of the Bank. In relation whereto or in respect whereof, initiatives had been taken by P.Ws. 19 and 20. It is furthermore not denied or disputed that after the cheque discounting facility was stopped in April, 1989 by Accused No. 4, there has been a meeting at the residence of P.W. 20. In his deposition, the said witness categorically admitted that the said meeting was arranged at the instance of Accsued No. 1. It is incomprehensible that a meeting has been arranged at his residence on the day he was on leave at the instance of Accused No.1. He must have developed grievance against the Accused No.4 as regards the stoppage of the said facility. If immediately thereafter the said facility had been restored by the Accused No. 4, a stand taken by him that it was done under the oral instructions of the higher authorities appears to be plausible.22. The prosecution apart from the fact that it had utterly failed to bring on record any evidence of conspiracy must also be held to have failed to bring on record any evidence of wrongful gain so as to attract the provisions of the Prevention of Corruption Act, 1988 or otherwise.23. The entire argument of Mr. B. Datta, learned Additional Solicitor General as also the findings arrived at by the learned Special Judge as also the High Court proved the ingredients of offence under Section 409 of the IPC. The accused persons, however, have not been charged for commission of the said offence. Conspiracy by and between the Bank officials and the Accused Nos. 1 to 3 has been stated to be for commission of the offence of cheating for the purpose of arriving at a finding that there has been a conspiracy so as to cheat the Bank. It was necessary for the prosecution to establish that there had been a meeting of mind at the time when the facility had been granted. Such meeting of mind on the part of the accused persons has not been proved. Furthermore, the prosecution case even if given face value and taken to be correct in its entirety does not lead to a finding that even Accused Nos. 1 to 3 had any wrongful intention at the time when the contract was initiated.24. We do not mean to suggest that in the matter of operating the account, no offence might have been committed by them. The offence, if any, it will be bear repetition to state, was committed under Section 409 of the IPC.25. The learned Special Judge as also the High court unfortunately proceeded on the basis that the cheque discounting facility could under no circumstances be made available to them.26. We do not think that, that was a correct approach. The RBI guidelines categorically show that it was not a wrong practice. It is one thing to say that there has been an abuse of a prevalent banking practice for the purpose of causing wrongful loss to the Bank and causing wrongful gain to others but it is another thing to say that by reason thereof, the ingredients of cheating are attracted.27. We have noticed hereinbefore that learned Additional Solicitor General merely took us through the judgment of the learned Special Judge as also the High court. His entire contention revolved around the commission of criminal breach of trust. Unfortunately, they have not been charged therewith. It would bear repetition to state that accused persons have not been charged under Section 409 of the IPC; even the Accused Nos. 1 to 3 have not been charged for entering into a conspiracy with Accused Nos. 4, 5 and 6 in respect of commission of offences under the Prevention of Corruption Act.28. It is in the aforementioned situation, we are of the opinion that the judgment of conviction and sentence cannot be upheld. So far as the submission of learned Additional Solicitor General that this Court, having regard to the concurrent findings of fact as regards the commission of offence arrived at by the learned Special Judge as also the High Court, should not exercise its discretionary jurisdiction under Article 136 of the Constitution of India is concerned, we do not find any substance therein. Appellants have been charged under wrong provisions. Proper charges have not been framed against them.29. In Lala Ram & Ors. vs. State of U.P. (1990) 2 SCC 113 , whereupon strong reliance has been placed by the learned Additional Solicitor General, this Court noticing various decisions opined that when there are various infirmities, the Supreme Court can interfere.It is, therefore, a case which comes within the purview of the dicta laid down therein. It is significant to notice that in that case itself this Court keeping in view the findings arrived at therein allowed the appeal preferred by the accused persons and set aside the judgment of conviction.It is one thing to say that ordinarily a concurrent finding of fact shall not be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India but it is another thing to say that despite opining that accused are entitled to acquittal, a judgment of conviction passed against them should be upheld. In fact, the jurisdiction of this Court must be exercised wherever it is required to do so for securing the ends of justice and to avoid injustice.30. The upshot of our discussionsThe prosecution did not lay down any foundational facts to arrive at a finding of dishonest intention on the part of the appellants, nor any such finding has been arrived at by the trial court or the High Court.(b) The circumstances which were considered sufficient to bring home the charges against the appellant were: the cheques of accused Nos. 1, 2 and 3 were discounted after purchasing cheques; cheques were deposited after a gap of 1 to 4 days; only later the amounts were deposited in the account which circumstances, in our opinion, are not sufficient to hold the appellants guilty for commission of offence under Section 420 of the IPC as all the actions on the part of the bank officers were in consonance with the long standing banking practice.(c) Accused No. 4 had taken care of having adequate security to ensure that the bank does not suffer any loss, the gain if any was caused to the Bank.(d) Appellants acted on instructions by the higher authority.(e) The prosecution evidence does not establish any conspiracy on their partAccused Nos. 1, 2 and 3.