Criminal Appeal No. 1932 of 2001 · Uttarakhand High Court · 2012
Case Details
Judgment
1. 2. ..(cid:133)(cid:133).Respondents Mr. B.S. Adhikari, and Mr. Pradeep Joshi, Advocates, present for the appellants. Mr. Vinod Sharma, Dy. Advocate, General, with Mrs. Mamta Bisht, A.G.A., present for the State. Mr. Arvind Vashistha, Advocate, present for the CBI. Alongwith Criminal Appeal No. 341 of 2004 (Old No. 1101 of 1998) Vinai Datt Vats S/o Shiv Dutt Sharma R/o 53, Purana Bazar, Khurja District Bulandshahar (cid:133)..(cid:133) Appellant Versus 2
1. 2. State of Uttar Pradesh (now State of Uttarakhand) C.B.I, SPE, Dehradun ..(cid:133)(cid:133).Respondents Mr. Sandeep Tandon, Advocate, present for the appellant. Mr. Vinod Sharma, Dy. Advocate, General, with Mrs. Mamta Bisht, A.G.A., present for the State. Mr. Arvind Vashistha, Advocate, present for CBI. Criminal Appeal No. 342 of 2004 (Old No. 1109 of 1998) Liyakat Ali Khan (since deceased) S/o Sri Abdul Hameed Khan R/o Sabzi Mandi Sarai Gali Ram Nagar, Nainital (cid:133)..(cid:133) Appellant (In jail) Versus State of Uttar Pradesh (now State of Uttarakhand) ..(cid:133)(cid:133).Respondent Mr. B.S. Adhikari, Advocate, present for the appellant. Mr. Vinod Sharma, Dy. Advocate, General, with Mrs. Mamta Bisht, A.G.A.,present for the State. And Criminal Appeal No. 343 of 2004 (Old No. 1165 of 1998) Rajendra Kumar S/o Sri Shyam Lal 226 MIG, Awas Vikas Colony Yojana No. 2, Anoop Shahar Road Police Station Kotwali District Bulandshahar (cid:133)..(cid:133) Appellant (In jail) 3 Versus State of Uttar Pradesh (now State of Uttarakhand) C.B.I. Dehradun
1. 2. ..(cid:133)(cid:133).Respondents
Mr. Rajendra Singh, Advocate, present for the appellant. Mr. Vinod Sharma, Dy. Advocate, General, with Mrs. Mamta Bisht, A.G.A., present for the State. Mr. Arvind Vashistha, Advocate, present for C.B.I. Honʹble Prafulla C. Pant, J. All these four appeals are directed against the judgment and order dated 03.06.1998, passed by Special Judge, Anti Corruption, Dehradun, in CBI case no. 12 of 1996, whereby said court has convicted accused/appellant Umesh Chand Boro, Liyakat Ali Khan, Rajendra Kumar, Vinai Datt Vats and Mohd. Usman under section 120B IPC read with section 420, 467, 468, 471 IPC and section 13(2) of Prevention of Corruption Act, 1988. Each one of them has been sentenced to rigorous imprisonment for a period of two years, and directed to pay fine of ‘ 500/- under section 120B IPC (read with section 420, 467, 468, 471 IPC and section 13 (2) of Prevention of Corruption Act). Each one of Umesh Chand Boro and Liyakat Ali Khan has been further convicted and sentenced to rigorous imprisonment for a period of four years, and directed to pay fine of ‘ 2,000/‐ under section 467 IPC. Accused/appellant Umesh Chand Boro has been 4 further convicted and sentenced rigorous imprisonment for a period of four years and directed to pay fine of ‘ 2,000/‐ under section 471 IPC. He has been further convicted and sentenced to rigorous imprisonment for a period of three years and directed to pay fine of ‘ 500/‐ under section 13(2) of Prevention of Corruption Act, 1988. Accused/appellant Liyakat Ali Khan has also been convicted and sentenced to rigorous imprisonment for a period of three years, and directed to pay fine of ‘500/‐ under section 13(2) of Prevention of Corruption Act, 1988. Accused/ appellant Rajendra Kumar has also been further convicted and sentenced to rigorous imprisonment for a period of three years and directed to pay fine of ‘ 500/‐ on each of the counts under section 420 IPC, read with section 420, 467, 468, 471 IPC and section 13(2) of Prevention of Corruption Act, 1988. Accused/appellant V.D. Vats has been further convicted and sentenced to rigorous imprisonment for a period of two years and directed to pay fine of ‘ 500/‐ on each of the counts under section 420, 467, 468, 471 IPC and under section 13(2) of Prevention of Corruption Act, 1988. And accused/appellant Mohd. Usman has been further convicted and sentenced to 5 rigorous imprisonment for a period of two years, and directed to pay fine of ‘ 500/‐ under section 420 IPC. (Appeal of accused/appellant Liyakat Ali Khan is being pursued by his legal representative).
2. Heard learned counsel for the appellants and learned counsel for Central Bureau of Investigation (for short C.B.I)and perused the lower court record.
3. Prosecution story in brief is that accused/ appellants Umesh Chand Boro, Liyakat Ali Khan, and Rajendra Kumar were posted in the year 1989, as officers with Bank of Baroda, Branch Jaspur. Accused/ appellant V.D. Vats was posted as Clerk‐Cum‐Cashier with said branch. Accused/appellant Mohd. Usman was having an account no. 399 with said branch of Bank of Baroda. It is alleged that on 31.03.1989, in furtherance of criminal conspiracy, a current account no. 409 was opened with aforesaid branch of the Bank in the name of fictitious and non existent firm M/s Kumaon Pipe Industries, Jaspur Road, Thakurdwara, Moradabad. One Anwar Ahmed was shown as the person who was to operate said account but the prosecution case is that said person was non existent. 6 Accused/appellant Mohd. Usman is the person who introduced the account holder of current account no. 409, knowingly that no such firm named Kumaon Pipe Industries exists in reality. Accused/appellant U.C. Boro dishonestly allowed the opening of current account in the name of aforesaid fictitious person which was numbered as current account no. 409. The Cheque book containing fifty leaves bearing Sl. No. 643901 to 643950 was shown to have been issued in the name of account holder of said account. Thereafter a cheque bearing no. 639382 for an amount of ‘ 4,47,000/‐ in favour of M/s Kumaon Pipe Industries, drawn in Bank of Baroda, Station Road, Branch Moradabad, was presented in Jaspur Branch on 17.04.1989, said cheque was shown collected and dishonestly credited in account no. 409 by the accused/ appellant Rajendra Kumar without there being any collection memo issued. Subsequently, the aforesaid amount was withdrawn between 17.04.1989 to 07.07.1989 through various cheques. It is also stated that on 03.07.1989, a cheque bearing no. 652005 for an amount of ‘ 3,45,000/‐ drawn in Moradabad Branch of Bank of Baroda, was also presented in Jaspur in the aforesaid current account no. 409 purported to have 7 been issued allegedly by Anwar Ahmed (account holder of non existent firm) with regard to which schedule (cid:145)C(cid:146) was issued under signature of accused/appellant Liyakat Ali Khan, and its dispatch was shown to Moradabad Branch. A collection memo pertaining to said cheque purported to have been signed by one A. Gupta (P.W.6 Adheer Kumar Gupta) who had never been posted with Morodabad Branch of the bank was got forged, and the amount was credited in the aforesaid account no. 409 with Jaspur Branch. As such, accused/appellants by forging documents caused wrongful loss to Bank of Baroda Branch Jashpur, to extent of ‘ 7,56,004/‐.
4. A first information report no. RC‐35(A)/91 DAD (Ex. A127) was registered by CBI against accused/appellant U.C. Boro, Mohd. Usman and others, and Shri S.S. Patwal (P.W.13) Inspector CBI investigated the crime. After interrogating witnesses, collecting the relevant documents, and obtaining report from the Hand Writing Expert, a charge sheet (Ex. A135) was filed by the Investigating Officer against accused/appellants U.C. Boro, Mohd. Usman, Liyakat Ali Khan, Rajendra Kumar and V.D. 8 Vats for their trial in respect of offences punishable under section 120B IPC read with section 420, 467, 468, 471 IPC and under section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988.
5. The Special Judge, Anti Corruption, Dehradun, on 03.01.1997, after hearing the parties, framed charge of offences punishable under section 120B IPC (read with section 13 of Prevention of Corruption Act, 1988, and further read with section 420, 467, 468, 471 IPC), under section 467, under section 468 IPC and section 13(d) of Prevention of Corruption Act, 1988, against accused V.D. Vats. Charge under section 120B (read with section 13 of Prevention of Corruption Act, 1988, and under section 467, 468, 471 IPC) and under section 420 IPC was framed against accused Mohd. Usman. Charge under section 120B IPC (read with section 13 of Prevention of Corruption Act, 1988, further read with section 420, 467, 468, 471 IPC) and under section 420 IPC, and under section 471 IPC and under section 13(1)(d) of Prevention of Corruption Act, 1988, was framed against accused Rajendra Kumar. Charge under section 120B IPC (read with section 13 of Prevention of Corruption Act, 1988, 9 further read with section 420, 467, 468, 471 IPC), and under section 420 IPC, under section 471 IPC and under section 13(2) of Prevention of Corruption Act, 1988, was framed against accused U.C. Boro. Charge under section 120B IPC (read with section 13 of Prevention of Corruption Act, 1988, and further read with section 420, 467, 468, 471 IPC), and under section 467 IPC and under section 13(2) of Prevention of Corruption Act was framed against accused Liyakat Ali Khan. All the accused pleaded not guilty and claimed to be tried.
6. Prosecution got examined P.W.1 M.D. Sinha, Clerk‐cum‐Cashier of the Bank, P.W.2 R.K. Mangla, Senior Branch Manager, P.W.3 Vishesh Kumar Mathur, Clerk‐cum‐cashier, P.W.4 Atar Singh, Clerk‐ cum‐Cashier, P.W.5 Anil Kumar, Accountant, P.W.6 Adheer Kumar Gupta, P.W.7 Sohan Lal, Peon/Daftari, P.W.8 N.A. Desai, P.W.9 Anil Kumar, Head Cashier, P.W.10 V.G.S. Bhatnagar, Government Examiner of questioned document, P.W.11 V.K. Nayyar, the then Branch Manager, P.W.12 Ved Prakash, Officer of the Moradabad 10 Branch of the Bank and P.W.13 Sohan Singh Patwal, Inspector CBI (Investigating Officer).
7. P.W.1 M.D. Sinha has deposed about the procedure of opening current account with bank, procedure of issuing of the cheques and procedure of clearance of cheques. He has further proved that credit advice of cheque no. 652005 (Ex. A1) is prepared in the hand writing of accused/appellant U.C. Boro. He has further proved that as a Manager of Sending Branch of said advice accused/appellant Liyakat Ali Khan has signed it. The witness has further told that advice was shown collected after it was passed by accused/appellant Rajendra Kumar. P.W.1 M.D. Sinha, further disclosed that credit advice of cheque no. 639382 (Ex. A2) was prepared by accused/appellant V.D.Vats, and as a Sending Manager it was signed by Anil Kumar Rohila (P.W.9) and the same was passed by accused/appellant U.C. Boro. The witness further told that on the basis of said credit advice in the current account no. 409, an amount of ‘ 3,44303/‐ was credited after deducting collection charges out of ‘ 3,45,000/‐. The witness has further narrated that said credit voucher (Ex. A3) was 11 passed by accused/ appellant Rajendra Kumar. The witness has further proved that amount of ‘ 4,46,106/‐ was also accounted in same current account no. 409 after deducting collection charges out of ‘ 4,47,000/‐ mentioned in the voucher (Ex. A4). P.W.1 M.D. Sinha, further stated that said voucher was signed by accused/appellant Liyakat Ali khan. He has further stated that from aforesaid current account no. 409 which was opened on 18.04.1989 in the name of one Mohd. Aslam with a cheque no. 643904 (Ex.A5) after the same was passed by accused/appellant Liyakat Ali Khan. The witness has further proved that another cheque no. 643929, dated 31.10.1989 (Ex. A6) was also passed for payment from aforesaid account by accused/ appellant Liyakat Ali Khan. Not only this, cheque no. 643921, dated 29.10.1989 (Ex. A7) was also cleared for payment from aforesaid account by accused/appellant Liyakat Ali Khan. Similarly, other payments cleared through cheques (Ex. A8, Ex. A9, Ex. A10, Ex.A11, Ex.A12, Ex. A13, Ex. A14, Ex. A15, Ex. A16, Ex.A17 and Ex. A18) are stated by aforesaid witness to have been cleared from aforesaid current account by accused/appellant Liyakat Ali Khan. 12
8. P.W.2 R.K.Mangla, Senior Manager of Bank of Baroda has stated that the current account in question was opened under signatures of accused/appellant U.C.Boro. He has also corroborated the statements of P.W.1 M.D. Sinha regarding the credit advice (Ex.A1 for an amount of ‘ 3, 45,000/‐) and credit advice (Ex. A2 for an amount of ‘ 4,47,000/‐) cleared by accused/appellant Rajendra Kumar accused/appellant U.C. Boro. This witness had further told that the credit advices (purporting to have been issued by A. Gupta) were cleared without tallying his signatures as mentioned in the Code book.
9. P.W.6 Adheer Kumar Gupta has stated that he had never been posted in Station Road Moradabad Branch from where the disputed credit advices were shown issued.
10. P.W.10 V.G.S. Bhatnagar, a document hand writing expert has corroborated the fact that the signatures mentioned in the disputed credit advices are not that of Adheer Kumar Gupta. 13
11. P.W.3 Vishesh Kumar Mathur who was the then Cashier has corroborated the statement of P.W.1 M.D. Sinha from the entries in the ledger posting register.
12. P.W.5 Anil Kumar an employee of Bank of Baroda, Branch Station Road, Moradabad, has stated that on the basis of entries, none of the disputed credit advices were received for clearance in Moradabad Branch, nor anyone named (cid:145)A. Gupta(cid:146) or (cid:145)A.K. Gupta(cid:146) was any officer posted with such branch in the year
13. P.W.7 Sohan lal is Peon/Daftari, Jaspur Branch of the Bank who has stated that cheque book bearing cheques no. 652001 to 652050, was received by accused/ appellant U.C. Boro, and he gave it to accused/ appellant Rajendra Kumar.
14. P.W.8 N.A. Desai, General Manager of Bank of Baroda, Central Officer, Mumbai, has proved that he was appointing authority of the accused/appellants U.C. Boro, Rajendra Kumar, Liyakat Ali Khan and V.D.Vats, and he had power to remove them. He further told that after perusing the entire papers 14 submitted by CBI, he granted sanction (Ex. A110) for prosecution of the said four accused/appellants.
15. On reappreciating the entire evidence on record, this Court finds that the criminal conspiracy on the part of accused/appellants Mohd. Usman (in opening fake current account no. 409 in the name of Kumaon Pipe Industries through one Anwar Ahmed, crediting false advices in said account number, and allowing withdrawals through various cheques from said account ) with U.C. Boro, L.A. Khan, Rajendra Kumar and V.D. Vats is proved beyond reasonable doubt, on the record.
16. On behalf of the appellants it is argued that P.W.1 M.D. Sinha, has admitted that Anwar Ahmed was not a non existent person as he knew his brother. In this connection, it is further pointed out that P.W.13 S.S. Patwal, Investigating Officer, has not verified that Anwar Ahmed was a non existent person. Assuming that a person named Anwar Ahmed did exist but opening account in his name and making false credit in his account, and further allowing withdrawals through various cheques out of 15 the falsely credited amount, establishes on the record that the accused/appellants had conspired to commit crime punishable under section 120B read with section 420, 467, 468, 471 IPC, and one punishable under section 13 of Prevention of Corruption Act,
1988. As such, the above argument in the opinion of this Court is of no help to the appellants.
17. The next argument advanced on behalf of the accused/ appellants is that P.W.6 A.K. Gupta, has admitted that his signatures in Code book have changed, as such no liability can be fastened for not tallying his signatures with the signature in the credit advice purporting to have been issued by said officer. Had said officer (A.K. Gupta) been posted with Bank of Baroda, Branch Station Road, Moradabad, the above argument advanced on behalf of the accused/ appellants could have helped them but in the present case it has been proved that neither said officer was ever posted in Moradabad Branch, nor had he issued the disputed credit advices as such the above argument also does not help the present accused/appellants. 16
18. The third argument forwarded on behalf of the accused /appellants is that none of the accused/ appellants were proved beneficiaries of withdrawals made from the current account no. 409 with Jaspur Branch, as such it cannot be said that they caused wrongful loss to the bank. I have already discussed the evidence on record, and from the evidence it is evident that inference can safely be drawn that the accused/ appellants in conspiracy by getting opened the current account no. 409 in the name of Kumaon Pipe Industries, and falsely making entries of credit of more than seven lac, and allowing its withdrawal caused wrongful loss to the bank. As such there is need to prove as to how the booty was distributed amongst the accused/ appellants.
19. It is also contended on behalf of the accused/ appellants that from the statement of P.W.4 Atar Singh and P.W.11 V.K. Nayyar, it is clear that in respect of the transactions in question they were departmentally charge sheeted, but the CBI has saved them. I have considered the contentions of learned counsel for the accused/appellants. In the opinion of this Court merely for the reason that some other 17 persons might have been involved, present accused/appellants cannot be acquitted. P.W.4 Atar Singh has cleared only one of the cheques of the account holder of current account no. 409 and that might be bona‐fide. Similarly P.W.11 V.K. Nayyar who was the then Branch Manager since supervising the functions of the branch, he might or might not have criminal intention in not preventing fraudulent account being opened, and false credit and fraudulent withdrawals being made at the instance of the other accused/appellants, as it is not clear that he had knowledge of the fraud at that stage.
20. It is also argued on behalf of the appellants that unless the signatures purporting to have been made by Anwar Ahmed through whom the current account no. 409 was operated did not shown tallied with that of any of the present accused/appellants and it cannot be said that they had involvement in the transactions in question. I do not find force in the argument for the reason that whosoever signed the cheques in question for withdrawing the amount or signed the credit advices but the manner present accused/appellants have acted (whether introducing Anwar Ahmed by 18 accused/ appellant Mohd. Usman, allowing his current account opened by accused/appellant U.C. Boro, showing collection of credit advices by accused/appellant Rajendra Kumar, getting cleared cheques account holder accused/appellants Liyakat Ali Khan and V.D Vats, is concerned), inference can be clearly drawn that they hatched criminal conspiracy in committing forgery in order to cause wrongful loss to the bank by indulging in corruption.
21. For the reasons as discussed above this Court finds that the trial court has rightly found all the five accused/appellants guilty of the charge. However, on the point of sentence it is pertinent to mention here that from the record it appears that accused/appellant Liyakat Ali Khan (since deceased) remained in jail for one year and ten days, accused/appellant U.C.Boro who was a direct recruit officer has spent one year and seven months in jail, accused/appellant V.D.Vats who was also new entrant remained in jail for one year and eight months, accused/appellant Mohd. Usman has remained in jail for one year and eleven months and accused/appellant Rajendra Kumar has 19 remained in jail for a period of two years and six months. As such, this Court is of the view that sentence awarded by the trial court can be reduced to the period already undergone without interfering with the amount of fine directed to be paid by them.
22. Accordingly, all the four appeals are dismissed on the point of conviction. However, on the point of sentence, the sentence awarded by the trial court is reduced to the period already undergone by the convicts/appellants for the period as detailed above without interfering with the amount of fine directed to be paid by the trial court. Lower court record be sent back. Parul (Prafulla C. Pant, J.) 17.10.2012