Ram Gopal Vs. Central Bureau of Investigation, Dehradun
[Criminal Appeal Nos. 1085 of 2019 arising out of SLP (CRL.) Nos. 9004 of 2017]
Pankaj Kumar Jain Vs. Central Bureau of Investigation, Dehradun
[Criminal Appeal Nos.1086 of 2019 arising out of SLP (CRL.) Nos. 1981 of 2018]
NAVIN SINHA, J.
1. Leave granted.
2. The appellants assail their conviction under Sections 120B, 420, 467, 468, 471, 477A, 201, I.P.C. read with Sections 13(1)(d) and 13(2), Prevention of Corruption Act.
3. The Central Bureau of Investigation registered an F.I.R. on 12.04.1994 based on the statement of the Assistant General Manager, State Bank of India, Ghaziabad with regard to the opening of a fictitious Bank account on 13.07.1992 in the name of one Raj Kumar. Soon thereafter by separate forged credit entries between the period 23.07.1992 to 31.10.1992, deposit of Rs.3,22,056.00 was made in the account. Subsequently on different dates a sum of Rs.3,22,000.00 was withdrawn by seventeen cheques leaving a balance of Rs.322.85. Originally two clerks of the Bank, Dinesh Kumar Sharma and Smt. Vandana Kundra were named as accused along with other unknown persons. The names of the appellants transpired during investigation leading to the submission of charge sheet against them only, and after conclusion of the trial they were convicted.
4. Learned counsel for the appellants contended that they have been made scapegoats while the original named accused have been wrongly exonerated during investigation. The sanction for their prosecution was not in accordance with law. There is no evidence that the appellants were instrumental in any manner with regard to opening of the fictitious account. No evidence has been led in support of criminal conspiracy. It was not possible for the appellants to destroy evidence with regard to account opening form, specimen signature of the account holder or make forged credit or debit entries in the ledger.
The report of the handwriting expert with regard to the writing and signature on the cheques was a mere expression of an opinion. DW1 the handwriting expert on behalf of the appellants had doubted the very same handwriting and signatures of the appellants. They are therefore entitled to the benefit of doubt. No action has been taken against the concerned Bank employees responsible for opening of the fictitious account, much less has the prosecution even attempted to investigate and identify such persons. The withdrawals from the fictitious account through bearer cheques were not received by the appellants as acknowledged by PW3.
5. Learned counsel for the Central Bureau of Investigation submitted that there has been thorough evaluation of evidence, including that of handwriting experts, and the charge against the appellants stands proved.
6. We have considered the submissions on behalf of the parties and gone through the materials on record. It is an undisputed fact that a fictitious account was opened without proper verification in accordance with the banking procedures. That unfortunately does not appear to have been the subject of investigation and which could have revealed more facts with regard to the nature and manner of the embezzlement that has taken place, including the persons involved in the same. The trial court has rightly observed that in accordance with banking procedures, the opening of the account, the deposits in the same and withdrawals could not have been the handiwork of the appellants alone. But merely because the investigation may not have been of the standard and nature that it ought to have been cannot enure to the benefit of the appellants in view of the nature of materials and evidence available against them.
7. The validity of the sanction against the appellants for prosecution, who were undisputedly employed as messenger and assistant clerk respectively in the same branch, has been proved by PW1 and PW2. The Sub. Inspector, Central Bureau of Investigation PW23, proved that the appellants had given their specimen writing and signatures during investigation. The Principal Scientific Officer, C.F.S.L., PW18 deposed that the account opening form of the fictitious account was in the handwriting of appellant Pankaj Kumar Jain impersonating the fictitious account holder Raj Kumar. The receipt of cheque book and pass book from the Bank records, on behalf of the fictitious account holder, were in the handwriting of the appellant Pankaj Kumar Jain.
The writing on two of the withdrawal cheques drawn as "self" on the fictitious account purporting to be signed by the said Raj Kumar were in the handwriting of appellant Ram Gopal. The signature on all the 17 forged cheques for withdrawal by "self" were in the handwriting of appellant Pankaj Kumar Jain impersonating the fictitous account holder.
These in our opinion were sufficient to establish conspiracy. The hand writing expert DW1 relied upon by the appellants gave his report based on photocopies of the writing and signatures of the appellants and not on the basis of their specimen signatures. During the course of hearing we asked the counsel for the appellants if they had filed any objection to the report of the handwriting expert relied upon by the prosecution. It was fairly stated that they did not do so.
8. The fraud was committed in a systematic manner by persons well acquainted with banking procedures. The appellants were also the employees of the Bank. There is no defence evidence that they had no access to records of the Bank at any stage to commit the offence attributed to them. On the contrary, the evidence of their involvement is clinching. They also had access to the vouchers and ledgers as part of their normal duties. Even the specimen signature card was made to disappear replaced by a torn paper.
9. We therefore find no reason to interfere with the conviction of the appellants. The appeals are dismissed.
.............................J. (Ashok Bhushan)
.............................J. (Navin Sinha)
July 22, 2019.