Judgment PADHYE, J.:---The original accused No. 1 has filed this appeal against his conviction and sentence for the offences under sections 120-B read with sections 419, 471 read with sections 465, 420, 411 read with sections 34, 411, 420 read with sections 511 and 471 read with section 465 of the Indian Penal Code. Along with the present appellant, four more persons were charged for the various offences and they have also been convicted for the different offences by the learned Additional Sessions Judge, Greater Bombay. The original accused Nos. 2 to 5 do not appear to have challenged their convictions and in any case their appeals are not before us. 2. As many as 82 charges were framed against the several accused persons but so far as accused No. 1 is concerned the charges against him were 1 and 5. He has been acquitted of the charge No. 5 and has been convicted only for the offences mentioned in charge No. 1. The charge against accused No. 1 was that he along with other persons between January 1970 and May 1970 at Greater Bombay agreed to do or caused to be done several illegal acts mentioned in the said charge. Some of them are dishonestly receiving or retaining stolen postal articles knowing or having reason to believe the same to be stolen, cheating the various banks by personation, opening the accounts in fictitious names, forging and using the forged documents as genuine, cheating various banks and/or attempting to cheat the banks by withdrawing the amounts on the forged documents or valuable securities and that the same acts were done in pursuance of the said agreement between different persons. 3. 3. The modus operandi of committing these acts as alleged by the prosecution, may be stated thus: (i) These persons used to pilfer and steal cheques, and drafts with their covering letters in postal transit; (ii) to use signatures appearing on covering letters for forging signatures on account opening forms; (iii) to open accounts with the different banks in fictitious names; (iv) to forge these cheques and drafts by erasing the original contents of the cheques and drafts and filling in view contents; (v) to deposit such forged cheques and drafts in the fictitious accounts opened by them; (vi) to issue small cheques for an amount little more than the original deposit with which the account was opened for encashment thereof; and (vii) after those cheques were encashed to issue cheques for bigger amounts for withdrawing almost the whole amount deposited under the forged cheque or drafts, from that fictitious account. Such operation was going on for a long time and accounts were opened in different banks at different places and in those banks fictitious accounts were first opened in fictitious names and in those accounts the forged cheques and demand drafts used to be deposited. For a while this operation worked successfully but ultimately the fraud was discovered and some of the members of the group were held up by the police. The operations therefore were uncovered and the 5 original accused came to be put up on trial, for the various charges against them. 4. So far as the present appellant (the original accused No. 1) is concerned, nothing has been brought out to show that he opened any fictitious account in any of the several banks to which reference will be made hereafter in the name of any other person. He did however open one account in the Chartered Bank at Andheri in his own name and that account appears to be a genuine one. It is alleged by the prosecution that in his nefarious activities the original accused Nos. 2 to 5 were his associates and with the help of those persons the present appellant along with those persons and perhaps others defrauded the banks and some of their constituents of large sum of money. 5. It is alleged by the prosecution that in his nefarious activities the original accused Nos. 2 to 5 were his associates and with the help of those persons the present appellant along with those persons and perhaps others defrauded the banks and some of their constituents of large sum of money. 5. In the course of this operation several accounts were opened in the names of different persons by the different accused out of which we shall have to take into consideration 5 accounts as in the other accounts, in respect of which also evidence has been brought before the Court, there were no such transactions of depositing the forged cheques or drafts and or withdrawing the amounts from those accounts. Out of these 5 accounts to which reference will be made, 4 accounts were opened by the accused No. 2 whose real name is Dattatraya Laxman Shettigar, in different names in different banks. The first account was opened by him on 14-2-1970 in the Andheri branch of the Chartered Bank in the name of J.L. Mishra. This account was in operation till 28-2-1970. The second account was opened by accused No. 2 in the name of B.S. Varma in the State Bank of India, Worli branch on 11-4-1970 and the same was in operation till 25-4-1970. The third account was opened by accused No. 2 in the name of S.K. Khatri in the Indian Bank, Kings Circle branch on 28-4-1970 and was in operation till 30-4-1970 and the 4th one was opened by him in the name of S.K. Khatri in the Union Bank of India, Goregaon Branch on 28-4-1970. In the last bank account no deposits had been made as perhaps there was no occasion for making such deposit and in consequence no withdrawals. 6. The accused No. 1 also opened the saving bank account in his own name on 24-2-1970 in the Chartered Bank, Andheri branch and further deposited an amount of Rs. 25/- on 27-2-1970 in cash in the said account. In this Andheri branch of the Chartered Bank, 4 cheques were deposited in the account of J.L. Mishra. One was on 15-2-1970 for an amount of Rs. 19333.37; the second was on 18-2-1970 for an amount of Rs. 7989.91 (Ex. 113); the third was on 23-2-1970 for Rs. 17333.34 (Ex. 119) and the 4th was on 25-2-1970 for Rs. 9189.25 (Ex. 123). One was on 15-2-1970 for an amount of Rs. 19333.37; the second was on 18-2-1970 for an amount of Rs. 7989.91 (Ex. 113); the third was on 23-2-1970 for Rs. 17333.34 (Ex. 119) and the 4th was on 25-2-1970 for Rs. 9189.25 (Ex. 123). Out of these four cheques, the first cheque of Rs. 19333.37 could not be encashed and was returned on 20-2-1970. Similarly the last cheque for Rs. 9189.25 was also not encashed and returned unpaid. The two other cheques for Rs. 7989. 91 and Rs. 17633.34 were however accepted by the banks and the amounts were withdrawn by accused No. 2 in the name of J.L. Mishra. 7. Similarly in the account opened in the name of B.S. Varma in the State Bank of India, Worli Branch, two cheques were deposited, one dated, 17-4-1970 for Rs. 35889.88 on 20-4-1970 (Ex. 152) and cheque dated 23-4-1970 for Rs. 44935/- deposited on 23-4-1970 (Ex. 158). The latter one was not honoured and the amount thereunder could not be credited to the account of B.S. Varma. However, the earlier cheque for Rs. 35889.88 was honoured and the said amount was credited in the account of B.S. Varma and out of that amount almost the whole amount was withdrawn by four bearer cheques on 22-4-1970 and 23-4-1970. 8. In the third account opened in the name of S.K. Khatri in the Indian Bank, Kings Circle Branch, one cheque for Rs. 25155/- dated 25-4-1970 was deposited on 29-4-1970 (Ex. 35) and the second cheque for Rs. 15250/- dated 27-2-1970 was deposited on 29-4-1970 (Ex. 36). By similar modus operandi the amounts which were credited in the account of S.K. Khatri on account of these two cheques were withdrawn. It would thus be seen that from these three accounts most of the amount that was deposited by means of forged cheques or drafts has been withdrawn by accused No. 2 from the three different accounts. 9. However, in the 4th account which was opened by accused No. 2 in the name of S.K. Khatri in the Union Bank of India, Goregaon branch, on 28-4-1970, the person concerned could not succeed. While opening the account the person opening the account for the first time has to be introduced by constituent of the bank. 9. However, in the 4th account which was opened by accused No. 2 in the name of S.K. Khatri in the Union Bank of India, Goregaon branch, on 28-4-1970, the person concerned could not succeed. While opening the account the person opening the account for the first time has to be introduced by constituent of the bank. The accused No. 2 while opening the account in the name of S.K. Khatri in the Union Bank of India, Goregaon branch had produced an introduction for a constituent of the bank. However, the bank authorities contacted the said introducer and learnt from him that he had never introduced any such person by the name of S.K. Khatri and that put the bank authorities on guard. After the account is opened the new constituent is given a cheque book for operating the account. Getting suspicious about the genuineness of the person opening the account that person was asked to come later for collecting the cheque book. In the meanwhile a complaint was lodged to the police by the Union Bank of India, Goregaon branch authorities. The accused No. 2 went to the bank on 2-5-1970 and when he went there he was nabbed in the premises of the bank itself and was put in custody. This is how the activities of the accused No. 2 came to light and from the further investigation into the matter it was found that the accused No. 1 was also connected with these activities. 10. Besides these accounts by accused No. 2 in the different names a still other account was opened by the accused No. 5 whose real name is Siraj Husain Bandeali in the National Grindlays Bank, Vile Parle branch in the name of Haji Sakoor Haji Jamal Noor Mohamed on 24-3-1970. This account was operated only for a day, i.e. till 25-3-1970. The account was opened with an initial deposit of Rs. 500/- towards which it is said that the accused No. 2 had supplied Rs. 425/- out of the withdrawal made by him from the account in the name of R.R. Sharma and Rs. 75/- were added in cash by the accused No. 5. After opening this account a draft of Rs. 15,000/- dated 18-3-1970 was deposited by the accused No. 5 in the aforesaid bank, but this draft was not honoured by the clearing bank and was returned. 75/- were added in cash by the accused No. 5. After opening this account a draft of Rs. 15,000/- dated 18-3-1970 was deposited by the accused No. 5 in the aforesaid bank, but this draft was not honoured by the clearing bank and was returned. The accused No. 5 was arrested in the bank itself on 25-3-1970. 11. The accused No. 3 whose real name in Felix Baptist Alvarits opened an account in the Union Bank of India, in the name of J.B. Meyer on 23-4-1970 by making an initial deposit of Rs. 1000/- and was operated till 29-4-1970. In this account later on two forged cheques were deposited, one was for Rs. 25799/- dated 17-4-1970 (Ex. 90) and the other was for Rs. 35398.95 dated 25-4-1970 (Ex. 84). Out of these two cheques, the cheque (Ex. 90) was dishonoured and the cheque (Ex. 84) for Rs. 35398.95 was honoured. Out of these, an amount of Rs. 24, 000/- was withdrawn by cheque (Ex. 88). 12. According to the prosecution the original accused Nos. 1 to 5 had entered into an agreement among themselves to commit these frauds and in pursuance of that agreement the accused cheated the banks by forging the several cheques and drafts and depositing them in fictitious names and operated on those accounts and withdrew large sums of monies. Accused No. 1 therefore, is held liable as a co-conspirator along with the other co-accused i.e. original accused Nos. 2 to 5. In fact it is alleged that accused No. 1 was the master-mind in all these operations and it was he who managed the operation of the whole fraud. In fact it is alleged that he was keeping a watch throughout these operations which were being done through the other accused and he derived the benefits of this fraud to a large extent. 13. In case of conspiracy there is hardly any direct evidence and the conspiracy has necessarily to be established in almost all cases by indirect and circumstantial evidence. In this case there is no direct evidence and, therefore, the prosecution had to lean on the circumstances to establish the conspiracy amongst the 5 original accused and the part played by each of them in their activities. In this case there is no direct evidence and, therefore, the prosecution had to lean on the circumstances to establish the conspiracy amongst the 5 original accused and the part played by each of them in their activities. The appellant i.e., the original accused No. 1 Maneklal Lalchand Shah with whom we are concerned in this appeal denied any connection with the illegal activities, if any, of the accused Nos. 2 to 5. According to him he had nothing to do with any of the several transactions for which the accused Nos. 2 to 5 have been convicted by the lower Court. According to the appellant, he is not involved in any conspiracy whatsoever as alleged by the prosecution and that his conviction is therefore unjustified. His defence in the lower Court was of denial so far as the charges framed against him. 14. From the evidence on record the lower Court has held that the accused No. 2 opened fictitious account in four banks under the fictitious names and operated these accounts. Similarly accused No. 3 opened an account in one bank under a fictitious name and operated upon it and the accused No. 5 opened an account in another bank in fictitious name and operated upon it. 15. Though there is no direct evidence and there could not be, against the accused No. 1, he is sought to be connected with this conspiracy by bringing out certain circumstances to show his connection with the other accused persons involving him in the alleged conspiracy. It would be convenient if we enumerate the circumstances alleged against him account wise. 16. As regards the first account opened by accused No. 2 in the name of J.L. Mishra in the Chartered Bank, Andheri branch, on 14-2-1970, the accused No. 1 is sought to be connected in the manner below :---Accused No. 1 himself opened a saving bank account in his own name on 24-2-1970. He deposited a cash amount of Rs. 25/- in that account on 27-2-1970. On both these occasions he had himself gone to the said bank. The aforesaid bank is said to be 2 ½ miles away from the residential house of accused No. 1. He deposited a cash amount of Rs. 25/- in that account on 27-2-1970. On both these occasions he had himself gone to the said bank. The aforesaid bank is said to be 2 ½ miles away from the residential house of accused No. 1. However the accused No. 1 in his statement under section 342 of the Code of Criminal Procedure (old) has stated that this bank is about 3 to 4 furlongs from the place of his business while not disputing the distance from his residence. 17. The next circumstance alleged was that on 27-2-1970 there was a telephonic conversation between the accused No. 2 and Mathuria (P.W. 31) bank clerk, with respect to the cheque for the amount of Rs. 17733.87 (Ex. 119). The accused No. 2 is alleged to have rang up Mathuriya (P.W. 31) for finding out whether the amount of the aforesaid cheque was realised or not. At that time it is said the accused No. 1 was there and he had been there in fact for the purposes of finding out whether the amount was realised or not under the pretext of depositing his own amount in his own account. It was further alleged that the accused No. 1 had also gone to the aforesaid bank on 28-2-1970 which fact is denied by accused No. 1. That day also there was a telephonic talk between the accused No. 2 and the said Mathuria. 18. The accused No. 1 is also sought to be connected in respect of the operation of the account in this bank by yet another circumstance. It is said that the said cheque for Rs. 19333.37 was not honoured by the clearing bank and had to be returned to the person depositing the same viz. J.L. Mishra who according to the prosecution is none other than the accused No. 2 himself. In order to get back the said cheque, the accused No. 2 masquerading under the name of J.L Mishra ought to have taken delivery of the said unhonoured or dishonoured cheque but it is alleged that accused No. 1 sent one Monohar Bhatkar with a letter to the bank for collecting the said cheque thus showing complicity of the accused No. 1 in that account. 19. 19. So far as the account No. 2 opened by the accused No. 2 in the State Bank of India, Worli branch, in the name of B.S. Varma, the evidence of one Gangasharam (P.W. 60 ) is relied upon to show that the accused No. 1 was involved in the operation of the account opened in the said bank. 20. As regards the third account opened in the Kings Circle branch of the Indian Bank, in the name of S.K. Khatri the evidence of three witnesses, Rashmikant Mehta (P.W. 12), Kalyanji Dhanji (P.W. 13) and Babulal Lalchand Shah (P.W. 21) has been brought in by the prosecution. This is connected with the account in the United Bank of India, Goregaon branch wherein the accused No. 2 was arrested. Efforts were made to get the accused No. 2 released on bail in which it is said the accused No. 1 took a very prominent part and he was hand in glove with the accused No. 2 and must have been involved in the conspiracy with the accused No. 2 in defrauding the bank and their constituents. 21. So far as the fourth account in the name of Haji Sakoor Haji Jamal Noor Mohamed in the National and Grindlays Bank, by the accused No. 5, is concerned the accused No. 1 was sought to be connected because on that day he was said to have purchased a draft for Rs. 100/- for being given to one Motilal Saleraj who was said to be the brother-in-law of the accused No. 1 and from a post card which was seized from the person of accused No. 4 which purports to have been addressed by that Motilal Saleraj to the Maharashtra Metal Corporation, said to be owned by a accused No. 1. In fact in his statement under section 342 of the Code of Criminal Procedure (old), the accused No. 1 states that he is a proprietor of the Maharashtra Metal Corporation. 22. The connection of the accused No. 1 with the fifth account in the Union Bank of India in the name of J.B. Meyer opened by accused No. 3 is sought to be shown from the evidence of Wadia (P.W. 32). 23. 22. The connection of the accused No. 1 with the fifth account in the Union Bank of India in the name of J.B. Meyer opened by accused No. 3 is sought to be shown from the evidence of Wadia (P.W. 32). 23. The learned Sessions Judge has considered the evidence of these witnesses and the circumstances arising out of that evidence and has held certain circumstances as involving the accused No.1 and holding certain circumstances having no bearing on the connection of the accused No.1 with the alleged conspiracy. We shall deal with this evidence to show how far that establishes the necessary circumstances in order to establish the connection of accused No.1 with the alleged conspiracy and his involvement therein. The circumstances to involve a person in the commission of an offence must be of such a nature that they point out to the guilt of the accused and are compatible only with his guilt and the chain of circumstances must be so far complete that it must point out only to the guilt of the accused and they must not be incompatible with the innocence of the person charged. If this test is satisfied and the circumstances taken together point out only to the conclusion of the guilt of the alleged offender then only that person could be held guilty of the offence. It is in this light that we will have to test the evidence produced in the case to find out whether the guilt of accused No.1 is established beyond any doubt and is not incompitable with his innocence. 24. To revert to the account No. 1, we have the evidence of three witnesses Mathuria (P.W. 31), DMello (P.W. 35) and Manohar Bhatkar (P.W. 88). At the relevant time Mathuria (P.W. 31) was working as a clerk in the Chartered Bank, Andheri branch. In that period a current account in the name of J.L. Mishra had been opened. 24. To revert to the account No. 1, we have the evidence of three witnesses Mathuria (P.W. 31), DMello (P.W. 35) and Manohar Bhatkar (P.W. 88). At the relevant time Mathuria (P.W. 31) was working as a clerk in the Chartered Bank, Andheri branch. In that period a current account in the name of J.L. Mishra had been opened. In that account 4 cheque were deposited out of which two were honoured, and two dishonoured and if accused No. 2 is responsible for opening the said fictitious account in the name of J.L. Mishra and is further responsible for depositing these forged cheques, if they are forged, then in that case the accused No. 2 would be liable for his acts and unless any other circumstances are shown showing the complicity of the accused No. 1 in that affair, the accused No. 1 could be held liable. The prosecution, however, has brought in evidence to show that the accused No. 1 also opened a savings account in the same bank on 24-2-1870 and from this circumstance it is sought to be inferred that this account has been opened by the accused No. 1 in the said bank in order to enable him to keep a watch on the activities of the accused No. 2 while operating the account in the name of J.L. Mishra and also for the purpose of finding out whether the forged cheques which they had deposited were honoured or not and whether those accounts could be operated. Since the account in the name of J.L. Mishra was operated only during a short period of 14-2-1970 to 28-2-1970 and the accused No. 1 had also opened the account during this period, the inference was sought to be drawn that the accused No. 1 has opened this account with an oblique purpose as stated above and therefore he is intimately connected with the fraud committed by the accused No. 2. A further circumstance is being brought into service that the accused No. 1 opened as account for the first time in the said bank which is at a distance of about 2 ½ miles from the place of his residence is also unnatural and not innocuous and there must be some motive in opening the said account and at that particular time. It has, however, not been brought on record as to whether there was any other bank in that locality which was nearer than the Chartered bank and whether he had also any other account in any of the banks at Andheri. In fact there is no evidence on record to show that in Andheri there were any branches of other banks. Merely therefore the circumstances that the accused No. 1 opened an account in this bank, though it is at a distance of about 2 ½ miles, will not be a circumstances by itself against the accused No. 1 for involving him in the alleged conspiracy with the accused No. 2. The accused No. 1 has further stated that this branch of the Chartered bank is about 3 to 4 furlongs away from the place of his business though he has not disputed the distance from his residence. If that is so then there would be nothing unnatural in the accused No. 1 opening an account in the said branch. Even though there may be branches of other banks near about it is not necessary that a person must open an account in the nearest bank. There may be different reasons and valid reasons for not opening the account in the other banks and opening an account in a bank though at a longer distance. It was pointed out on behalf of accused No. 1 that the accused No. 1 had opened the account on 24-2-1970 even though the account in the name J.L. Mishra was opened on 14-2-1970 and two cheques had been deposited in that account long before 24-2-1970. It was contended that if the accused No. 1 had opened his savings bank account in this bank for the alleged motive he would have done so on 14-2-1970 itself prior to it. Similarly the circumstances of his depositing small amounts of Rs. 25/- each on two occasions after opening the account will not be with a sinister motive unless there was anything to show that the same was done with such purpose. Evidence also has been led to show that about a fortnight before 13-2-1970, the accused No. 1 had taken certain forms for opening the account in this bank and these forms were subsequently used by the accused No. 2 for opening the account in the name of J.L. Mishra. Evidence also has been led to show that about a fortnight before 13-2-1970, the accused No. 1 had taken certain forms for opening the account in this bank and these forms were subsequently used by the accused No. 2 for opening the account in the name of J.L. Mishra. There is nothing to show in the first place that any account opening forms were taken from the bank by the accused No. 1 and secondly even if any such forms were taken by him there is nothing to show that those very forms were used by the accused No. 2. There is no satisfactory evidence to that effect. In fact the account opened in the name of J.L. Mishra was the current account whereas the account opened by the accused No. 1 was savings bank account. We are not therefore prepared to take that circumstance into consideration. 25. Dealing with the evidence of Mathuria (P.W. 31), he says that two weeks before 13-2-1970 accused No. 1 had come to the bank and took this account opening form which was marked as Ex. 103. He also stated that along with the form he had also given a specimen signature card to the accused No. 1 which is marked as Ex. 104. He then states that accused No. 2 came to him on 13-2-1970 with Exs. 103 and 104. But as on that day he was having only Rs. 300/- with him no account could be opened since the minimum amount required for opening a current account is Rs. 500/-. Therefore, the accused No. 2 opened the account on 14-2-1970 by depositing an amount of Rs. 500/-. It does not appear that any acknowledgment had been taken from the accused No. 1 for giving him the blank forms for opening the account. There is no serial number or any other mark or initials made by Mathuria or any other officer of the bank on the said forms to identify as to whether the said forms had been given to the accused No. 1, 15 days prior to 13-2-1970. It has also not been shown that there is a practice in the bank of taking the acknowledgment of the person to whom blank forms are supplied for opening the account. It is also not known whether any acknowledgment from accused No. 2 was taken for supplying any blank forms to him. It has also not been shown that there is a practice in the bank of taking the acknowledgment of the person to whom blank forms are supplied for opening the account. It is also not known whether any acknowledgment from accused No. 2 was taken for supplying any blank forms to him. It cannot therefore be said that accused No. 1 had taken for supplying any blank forms to him. It cannot therefore be said that accused No. 1 had taken any forms and particularly these forms, by filling which the accused No. 2 opened the account on 14-2-1970. Not much importance can be given to this evidence of Mathuria to connect the accused No. 1 with accused No. 2 by his opening the current account on 14-2-1970. The further acts of depositing the cheques and withdrawing the amount are of the accused No. 2 alone with which apparently accused No. 1 does not seem to be concerned. 26. The next circumstance is about the presence of the accused No. 1 when the witness Mathuria is said to have a phone call from J.L Mishra enquiring from him about the fate of the cheque for Rs. 19333.37. The cheque (Ex. 113) was sent for clearance on 23-2-1970. It is the case of Mathuria that J.L. Mishra made enquires with him on the phone either on the 24th or 25th February, 1970 about the fate of the cheque. The telephone is in the cabin of the Manager where he sits, and when the witness was called on the phone, he was called by the Manager to attend to this phone and the witness states that at that time the accused No. 1 was standing near the cash counter of Savings. Admittedly the accused No. 1 had gone to the bank to open a savings bank account on 24-2-1970. According to Mathuria he could see him as theirs is a small branch. On the phone he told J.L. Mishra that the aforesaid cheque was not passed for payment. This witness of course could have no means to know but could only guess that the accused No. 1 must have heard the conversation between him and J.L. Mishra because that was within the hearing distance of accused No. 1. There was then another phone call by J.L. Mishra on 27-2-1970 with respect to cheque (Ex. This witness of course could have no means to know but could only guess that the accused No. 1 must have heard the conversation between him and J.L. Mishra because that was within the hearing distance of accused No. 1. There was then another phone call by J.L. Mishra on 27-2-1970 with respect to cheque (Ex. 119) which was sent to Dena Bank Chembur for collecting the amount from the said bank. Similar enquiry was being made by him about the fate of that cheque. It is his case that at that time accused No. 1 had also come to the bank to deposit an amount of Rs. 25/- in his savings account and was standing at the counter and in the telephone talk with J.L. Mishra he informed Mishra that the cheque was not cashed till then but he will be able to say about it on the next day. It is no doubt true that the accused No. 1 had also gone on 27-2-1970 to the said bank for depositing the amount of Rs. 25/- in his savings bank account. But the question that has to be considered is whether that conversation or any part of it had been heard and could be heard by accused No. 1 and what he could gather from the aforesaid conversation. It is only the surmise of this witness that the accused No. 1 must have heard the talk on the telephone between him and J.L Mishra. The learned Counsel for the appellant has urged that the inference sought to be drawn by this witness and from the deposition of this witness is too far fetched and that even if the accused No. 1 was present at the counter when their was a telephone call from J.L. Mishra to Mathuria, he could have known about such conversation. There is no substance in this contention. In the first place except the word of Mathuria there is nothing to show that at the very time he was answering the call supposed to be from J.L. Mishra when the accused No. 1 was present in the bank. In fact there was no occasion at that time for Mathuria to give particular attention to the presence of the accused No. 1 there when he was answering the call for Mishra. In fact there was no occasion at that time for Mathuria to give particular attention to the presence of the accused No. 1 there when he was answering the call for Mishra. In fact it does not appear that he had even suspected that the cheque deposited by J.L. Mishra was not a genuine one. Any customer may come and go during the banking hours and there was no particular reason for this witness to exactly remember that the accused No. 1 was present at the particular time when he was answering the phone call of J.L. Mishra. In fact unless it is prearranged accused No. 1 would not know as to when the accused No. 2 posing as J.L. Mishra would give a call on the telephone to Mathuria so as to enable him to present himself at that particular moment. There was no particular reason also for accused No. 1 to be present to hear the telephone talk. The telephonic talk was only for the purpose of finding out whether a particular cheque was cleared or not. That could have been done on telephone by accused No. 1 himself posing himself as J.L. Mishra and it was not necessary for him to attend the bank for that purpose. In fact Mathuria has stated that in the telephonic conversation some answers were given in the form of yes or no and sometimes by saying" cheque not cleared, come following day". He stated that on an average 50 to 70 customers visit the bank between the period 9.30 a.m. to 2.00 p.m. It is difficult therefore to deduce from this that even if accused No. 1 was in a position to hear the conversation on the telephone between Mathuria and the person at the other end the accused No. 1 could know from it that is was the conversation with the accused No. 3 only and that too in respect of that very cheque and whether he could have gathered anything from the said conversation as regards the fate of that cheque. 27. So far as the presence of the accused No. 1 on 28-2-1970 is concerned, the accused No. 1 had denied that he had gone to the bank on 28-2-1970. Evidence, however, of Mathuria shows that an amount of Rs. 25/- was deposited in cash in the savings account of accused No. 1 by pay-in slip (Ex. 124). 27. So far as the presence of the accused No. 1 on 28-2-1970 is concerned, the accused No. 1 had denied that he had gone to the bank on 28-2-1970. Evidence, however, of Mathuria shows that an amount of Rs. 25/- was deposited in cash in the savings account of accused No. 1 by pay-in slip (Ex. 124). On that day also a telephone call was received from J.L. Mishra enquiring about the fate of the cheque (Ex. 123), but before this the Manager had informed him that there was some fraud about this cheque. He asked the caller J.L. Mishra to phone again on the following day and enquire about the cheque. He says that at that time the accused No. 1 had come to deposit a cash of Rs. 25/- in his savings account. He drew the attention of his Manager to the presence of accused No. 1 on which the Manager called the accused No. 1 and enquired with him whether he had known J.L. Mishra. At that time the accused No. 1 was standing at the cash counter. This evidence, if accepted, would show that inspite of his denial the accused No. 1 had attend the bank on 28-2-1970 for depositing the amount in his saving account. It is true that ordinarily the bank officer may not remember whether a particular person was present at the bank on a particular occasion or on a particular day but in this case he was already alerted by the Manager about a fraud regarding this cheque and he had also seen the accused No. 1 on the previous day and had also pointed out the attention of the Manager to the presence of accused No. 1 and the accused No. 1 was called by the Manager for making enquires from him. That occasion made him to remember the presence of the accused No. 1 on 28-2-1970 in the bank. We do not see any reason as to why he should disbelieve the evidence of Mathuria on this point. The denial by the accused No. 1 of his presence on that day is not in our view truthful in view of the clinching evidence of Mathuria on this point. We do not see any reason as to why he should disbelieve the evidence of Mathuria on this point. The denial by the accused No. 1 of his presence on that day is not in our view truthful in view of the clinching evidence of Mathuria on this point. In fact a suspicion was directed against the accused No. 1 in their affair and he was asked whether he was prepared to come to the Police Station and the accused No. 1 replied that he was prepared to go to the Police Station and thereafter the Manager rang up the C.I.D. at some Police Station but the said C.I.D. declined to do anything as at that time the accused No. 1 did not seem to have been actually involved. All that has happened on that day in the bank premises would get fixed up in the memory of Mathuria and when Mathuria says that on 28-2-1970 the accused No. 1 himself had deposited a cash of Rs. 25/- in his savings account by a pay-in slip we could not see any reason to discredit him. A submission was made that the statement of this witness was recorded by the police on 6-7-1970 i.e. after a period of 4 months. We do not see that any grievance could be made on that because the police had stated investigating and in a matter like this several links had to be brought to the surface and connected with each other and in that a lot of time may necessarily be consumed. The have to pick up the thread from whatever little information they get regarding the involvement of the different persons in a conspiracy like this and it cannot be said that there was such an undue delay in taking the statement of this witness and that the evidence of this witness should we brushed aside. 28. We then have the evidence of other bank officer viz. D'Mellow (P.W. 35). He is officer in charge of the Andheri branch since 1968 when it was opened. He speaks of accused No. 2 coming on 13-2-1970 to open an account with an amount of Rs. 300/-. But as the amount of initial deposit fell short he was asked to come on the next day and he came on 14-2-1970 to open the account. He speaks about the cheque (Ex. 113) for Rs. He speaks of accused No. 2 coming on 13-2-1970 to open an account with an amount of Rs. 300/-. But as the amount of initial deposit fell short he was asked to come on the next day and he came on 14-2-1970 to open the account. He speaks about the cheque (Ex. 113) for Rs. 7387.91 being credited in the account of J.L. Mishra. Since the cheque had not been returned by the drawee bank the amount was credited in the name of J.L. Mishra. Subsequently it was found that the said cheque was forged. He then speaks about the phone talk from the account holder and his giving the phone to Mathuria (P.W. 31) to answer the same. He states that on the day the phone call came the accused No. 1 was present in the Bank. He also speaks about the presence of the accused No. 1 in the bank on 28-2-1970 when an amount of Rs. 25/- was deposited in his account. Thus the presence of the accused No. 1 in the bank premises is established by the evidence of Mathuria and D'Mello on 28-2-1970. 29. The next circumstance in the chain is supplied by the evidence of Manohar Bhatkar (P.W. 88). He is a resident of Andheri and in fact in the same chawl in which the accused No. 1 has been living. He was sent on an assignment by the accused No. 1. According to him he was given one cover by the accused No. 1 and he was asked to go to the Chartered Bank, Andheri branch. Accordingly he went to the Chartered Bank with that cover and after handing over the said cover to the bank authorities he was given some papers by the bank and his signature was taken in the delivery book. He has deposed that the accused No. 1 was staying in Pandu Patil Lane, Andheri and he had seen the accused No. 2 visiting the house of accused No. 1 at Andheri. From this it is sought to be established by the prosecution that the accused No. 1 was very much concerned with the forged cheque which the accused No. 2 had deposited in the Chartered Bank in the account of J.L. Mishra. From this it is sought to be established by the prosecution that the accused No. 1 was very much concerned with the forged cheque which the accused No. 2 had deposited in the Chartered Bank in the account of J.L. Mishra. The cover said to have been given by the accused No. 1 to this witness contained a letter purported to have been written by J.L. Mishra to the Bank Manager to hand over the returned cheque to the bearer i.e. this witness Bhatkar. That letter is Ex. 107. The evidence of this witness further shows that after this letter was handed over to the bank he received some papers from the bank and in token of that he signed the delivery book. The entry marked at Ex. 108 in the delivery books shows that the witness has signed the same in token of having received something from the bank. There is, however, no further statement by this witness that what was received by the witness from the bank was a cheque and that it was handed over by him to the accused No. 1. But the fact remain that this witness did go to the Chartered Bank on that day with a letter and that the bank handed over to him some papers on that day. This evidence has to be read along with the evidence of Mathuria (P.W. 31). Mathuria says that on 19-2-1970 he received a phone call from J.L. Mishra asking him about the fate of this cheque and he told him that the cheque was returned unpaid. The person phoning as J.L. Mishra asked him whether he could send his man to collect the cheque back and he asked J.L. Mishra to send a note to that effect with the bearer. Then he says that he got letter from J.L. Mishra which was shown to him and is marked Ex. 107. That letter requires the bank to hand over the returned cheque to the bearer of the letter. This letter was brought by the bearer on 20-2-1970 and Mathuria had asked his co-worker Deshpande to hand over the cheque to the person deputed by J.L. Mishra. He points out accused No. 2 before the Court. Then he deposes that Deshpande returned the cheque together with cheque returning memo to that person who had brought the said letter (Ex. This letter was brought by the bearer on 20-2-1970 and Mathuria had asked his co-worker Deshpande to hand over the cheque to the person deputed by J.L. Mishra. He points out accused No. 2 before the Court. Then he deposes that Deshpande returned the cheque together with cheque returning memo to that person who had brought the said letter (Ex. 107) and his signature in the delivery book was obtained which entry is marked Ex. 108. Deshpande could not be examined as he died in the year 1971. The evidence of this witness together with that of Mathuria therefore, would show that the bank had asked for the returned cheque to be taken away and that accused No. 1 sent a person to get that cheque from the bank with which the accused No. 2 was concerned and which cheque was sought to be credited in the account for the accused No. 2. If accused No. 1 had nothing to do with the accused No. 2 or the faked cheque which was not honoured then there was no reason for the accused No. 1 to have sent a man to the bank to get the returned cheque. It is however urged that the evidence of Bhatkar does not show that the papers received by him from the bank were handed over by him to the accused No. 1 and from this it is argued that his evidence does not show that the accused No. 1 had any connection with that cheque. It is true that such a specific statement has not been made by this witness. Normally, if a person sends another person for bringing some article from some place that person would after bringing that article hand it over to the person by whom he was deputed. That is a normal course of events. In the ordinary course of events therefore, the said Bhatkar must have given the papers to the accused No. 1 and not to anyone else. Further the evidence of Mathuria would show that it was the same cheque which was handed over by the bank authorities to Manohar Bhatkar. Therefore, this fat would involve the accused No. 1 with the transactions of the accused No. 2 with the Chartered Bank regarding his current account. 30. Further the evidence of Mathuria would show that it was the same cheque which was handed over by the bank authorities to Manohar Bhatkar. Therefore, this fat would involve the accused No. 1 with the transactions of the accused No. 2 with the Chartered Bank regarding his current account. 30. The prosecution has further relied on a post-card which was recovered from the accused No. 4 and it is contented that postcard (Ex. 70-K) found with accused No. 4 shows the connection of accused No. 1 with the activities of accused No. 4. Unfortunately that post-card has not been proved by calling in evidence the writer thereof. The connection which is sought to be established from a demand draft for Rs. 100/- said to have been purchased by the accused No. 1 from the National Grindlays Bank payable to Saleraj Motilal who is shown to be the sender of that postcard Ex. 70-K. It is alleged by the prosecution that the accused No. 1 has purchased the draft for Rs. 100/- and it was payable to Saleraj Motilal and the post card sent by the Saleraj Motilal was found with the accused No. 4, therefore, the accused No. 1 had connection with accused No. 4 who was involved in these shady transactions. Accused No. 1 has denied that he purchased any demand draft for Rs. 100/-. The signature on the application form for the purchase of the demand draft is made in English as M. L. Shah. The accused No. 1 has denied that signature to be his. According to him he never signs in English but always signs Hindi. Unfortunately his writing has also not been forwarded to the Hand Writing Expert for finding out whether it has really been signed by the accused No. 1 or not. In another form for opening the account (Ex. 114) the accused No. 1 has signed in Hindi which supports the contention of the accused No. 1, though it could not be definitely said without anything further that the accused never signs in English or he did not know English at all. Whatever that may be, it is not possible to rely upon this piece of evidence because neither the signature on the application for demand draft has been established to be that of the accused No. 1 nor has the post card Ex. Whatever that may be, it is not possible to rely upon this piece of evidence because neither the signature on the application for demand draft has been established to be that of the accused No. 1 nor has the post card Ex. 70-K been proved by calling in the writer of that card. However, there is one thing of which we can take note of. In the said application for the demand draft of Rs. 100 (Ex. 16) the address of the person who applied for the demand draft was shown as Room No. 10, Munshi Bhavan, Varsova Road, Andheri, In the opening the account in the Chartered Bank, Andheri, account No. 1992 on 24-2-1970 (Ex. 114), the same address has been given by the accused No. 1. This opening of the account and giving of the address is not disputed. This would show that the application for demand draft of Rs. 100/- also must be by or on behalf of accused No. 1, since the same address which is given by the accused No. 1 in the Chartered Bank has also been given here. However, inspite of this fact the accused No. 1 has been falsely giving different addresses at different times. For example, in his statement under section 342 of the Code of Criminal Procedure (old) in the committal Court he has given his address as 21, Kaka Patil Chawl, Pandu Patil Lane, Varsova, Andheri. This was on 17-2-1971. In his statement recorded in the Sessions Court on 11-1-1974 he has given his address as Room No. 38, Munshi Bhavan, Varsova Road, Andheri, Bombay. It appears therefore, that he has been giving false explanations and false information from time to time as it suited him. That also is a circumstance which could be taken into consideration along with the other circumstances. This is so far as the Chartered Bank business is concerned. 31. So far as the evidence of Bhatkar is concerned, it was stated that his evidence should not be relied upon because he seemed to be a procured witness. It has come in his evidence that this witness was arrested by the Andheri police on 11-12-1973 under section 151 of the Code of Criminal Procedure (old) and he was kept in the C.I.D. office. It has come in his evidence that this witness was arrested by the Andheri police on 11-12-1973 under section 151 of the Code of Criminal Procedure (old) and he was kept in the C.I.D. office. He was to be produced before the Court 9-1-1974 but he was not taken there but was told at the C.I.D. locker that he was discharged. He was in the lock-up from 27/28-12-1973 to 7-1-1974 and was discharged on 7-1-974. His evidence has been recorded on 10-1-1974. Suggestion was made to him that Inspector Patwardhan had assured that he would be discharged if he gave evidence in his favour. It is true that he was in the police lockup upto 7-1-1974 when he was discharged and that he was examined on 10-1-1974, but from this inference cannot be necessarily drawn that he was released because he agreed to oblige the police by giving evidence as per their dictation. Whatever the suggestion may be the fact that he went to the Chartered Bank and brought some papers of the bank has been convincingly established. If that is so then whether he wanted to oblige the police could not make any difference and from the mere fact that he was detained and subsequently released a few days before he gave the evidence could not affect the credibility of his evidence in the face of the facts proved in the case namely, that he had gone to the Chartered Bank and had received some papers from the bank. 32. In respect of the account opened in the name of B.S. Varma by accused No. 2, in the State Bank of India, Worli branch, the prosecution has examined one Gangasharan (P.W. 60), to connect the accused No. 1 with the accused No. 2. This witness stated that the accused No. 1 gave him Rs. 151 to open a savings bank account and accordingly he opened the savings bank account on 24-4-1970. Subsequently on 25-4-1970 the accused No. 1 gave him Rs. 50/- for despositing in his own account, but he deposited only Rs. 30/-. At that time the accused No. 1 was with him and he was asked by the accused No. 1 by pointing out a man whether he received the amount from the bank or not. He followed that person and deposited Rs. 50/- for despositing in his own account, but he deposited only Rs. 30/-. At that time the accused No. 1 was with him and he was asked by the accused No. 1 by pointing out a man whether he received the amount from the bank or not. He followed that person and deposited Rs. 30/- in his account and also saw that the person pointed out to him by the accused No. 1, did not receive the amount and this was told by him to the accused No. 1. This evidence, however, does not establish as to who that person was who was pointed out by the accused No. 1. The witness had stated that he was taken to the bank for opening the account by accused No. 1 and one Vasant Joshi. He was pointed out his police statement (Ex. 202) and the portion marked 'A' therein wherein he had stated that he kept a watch on a person who was proceeding towards the bank and he was pointed out by Vasant Joshi to see what happened in the bank regarding the encashment of the cheque. He did not mention the accused No. 1 in his earlier statement and his statement in Court is a distinct improvement. Besides, the witness, as admitted by him was convicted for three and half years in 1970 for offence under section 467 read with section 471 of the Indian Penal Code. He was later on acquitted. Then he says that he was convicted for an offence under section 420 of the Indian Penal Code for six months in the year 1969. In view therefore of the improvements made by him and also his previous record, the evidence of this witness does not inspire any confidence and we may leave this evidence out of consideration. 33. We have then the next account in the Union Bank of India, Goregaon branch, wherein the accused No. 2 wanted to open an account in the name of S.K. Khatri on 28-4-1970 and; it is in this connection when the accused No. 2 went to the bank on 2-5-1970 he was apprehended in the bank itself, and taken into custody. It is in this connection that the accused No. 1 was sought to be released on bail and it is in this connection that the accused No. 1 comes into picture. It is in this connection that the accused No. 1 was sought to be released on bail and it is in this connection that the accused No. 1 comes into picture. To show the connection of the accused No. 1 with the activities of the accused No. 2 and particularly in the bank transaction matters the prosecution relies upon the evidence of three witnesses viz. Advocate Rashmikant Mehta (P.W. 12), Kalyanji Satwala (P.W. 13) and Babulal Shah (P.W. 21) who is the brother of the accused No. 1 but he did not support the prosecution at the evidence stage. His evidence therefore will have to be left from consideration. Rashmikant Mehta is an Advocate of about 25 years standing. He practices in the Presidency Magistrate's courts, Borivali. He knows the accused No. 1 and he states that on or about 4-5-1970, accused No. 1 had approached him in connection with bail application of one Khatri in Borivli Court who was arrested by the Goregaon police. It may be noted that the accused No. 2 was arrested on 2-5-1970 in the premises of Union Bank of India, Goregaon branch. He was told full name of the person who was to be released on bail and this name was given to him by the accused No. 1. According to him he made an application for bail on behalf of Khatri. He filed his Vakalatnama on behalf of accused No. 2. The accused No. 2 signed the Vakalatnama in his presence as Khatri. He identified accused No. 2 as the person who signed the Vakalatnama given to him as Khatri. He then moved for bail and bail was ordered to be given for a sum of Rs. 5000/- with one surety in the like amount. On this the accused No. 1 told him that it could not be possible for him to give solvent surety for that amount. He, therefore made an application to the Court to deposit surety amount of Rs. 5000/- on the specific instructions of the accused No. 1. This application was rejected. The evidence thus will show that the accused No. 2 was posing himself as Khatri. The accused No. 1 was also describing accused No. 2 as Khatri to Advocate Mehta when trying for getting his release on bail. 5000/- on the specific instructions of the accused No. 1. This application was rejected. The evidence thus will show that the accused No. 2 was posing himself as Khatri. The accused No. 1 was also describing accused No. 2 as Khatri to Advocate Mehta when trying for getting his release on bail. It was accused No. 1 who was taking a keen interest in getting the accused No. 2 released on bail and for that purpose instructed Mr. Mehta to ask for permission to deposit the amount of Rs. 5000/- in cash as a security amount. The accused No. 1 further represented to Advocate Mehta that accused No. 2 was his good friend who was in difficulty and told him that if he could find out surety he could keep Rs. 5000/- with him as deposit in case the accused No. 2 absconded. He further stated that he then sent his peon with accused No. 1 to Kalyanji Dhanji at Kandivli-Bhoisar, who was known to him, and thereafter Kalyanji agreed to stand as surety and then an application was made on behalf of Kalyanji Dhanji. The cash of Rs. 5000/- was deposited with him on the same day i.e. 4-5-1970 and as soon as the surety of Kalyanji was accepted, the accused No. 2 was released on bail. It would thus appear from this evidence that accused No. 1 was playing a very important and prominent part in getting the accused No. 2 released on bail and actually he succeeded in getting him released on bail even by arranging a cash amount of Rs. 5000/- for his release. 34. The accused No. 1 was a regular client of Advocate Mehta and therefore Advocate Mehta knew accused No. 1 very well, being a regular client. Advocate Mehta would not tell anything which is not a fact. He reiterates in his cross-examination that it was accused No. 1 who himself told that since he could not find solvent surety for Rs. 5000/- he should make an application for depositing the amount of Rs. 5000/- and since accused No. 1 instructed him to make this application, he presumed that he must be having Rs. 5000/- and in fact Rs. 5000/- were produced by accused No. 1. 5000/- he should make an application for depositing the amount of Rs. 5000/- and since accused No. 1 instructed him to make this application, he presumed that he must be having Rs. 5000/- and in fact Rs. 5000/- were produced by accused No. 1. It may be noted that the witness was taken by the accused No. 1 to the accused No. 2 while he was in police custody for obtaining his Vakalatnama and at all stages the accused No. 1 was representing to him that the person who was to be got released on bail was Khatri and the accused No. 2 was also posing himself to be Khatri. This would show that the accused No. 1 was not coming out with true facts and was misrepresenting the matter even to his own Advocate and was out to do anything to see that the accused No. 2 was got released. That would show how great interest the accused No. 1 had in the accused No. 2. It may be also noted that the accused No. 2 was apprehended in connection with the bank transaction involving fraud and the accused No. 1 was trying to help the accused No. 2. 35. Kalyanji Dhanji (P.W. 13) is another witness. He actually stood as a surety for the accused No. 2 and got him released. He says that one person on behalf of Advocate Mehta approached him. He must be the peon of Advocate Mehta as said by Advocate Mehta. That man was accompanied by the accused No. 1. He identifies accused No. 1 and both of them said that he was called by Advocated Mehta to stand as surety in one case. He then contacted Advocate Mehta and on being asked to act as a surety for one Khatri, he agreed to stand his surety. He admits that accused No. 1 paid Rs. 250/- to Advocate Mehta as his commission which amount was later on paid to him by Advocate Mehta. It would thus be seen that it is only the accused No. 1 who was taking a very active part in getting accused No. 2 released and for that purpose even arranged a big amount of Rs. 5000/- which amount was deposited with Advocate Mehta who subsequently produced the amount before the police. It would thus be seen that it is only the accused No. 1 who was taking a very active part in getting accused No. 2 released and for that purpose even arranged a big amount of Rs. 5000/- which amount was deposited with Advocate Mehta who subsequently produced the amount before the police. In the light of the evidence of these two witnesses, the evidence of the third witness Babulal Shah has to be looked into. Babulal's evidence does not inspire any confidence. He is brother of the accused No. 1 and is expected to support him. He says that they are 5 brothers and they in fact reside in the same chawl. But he says that he does not know what is the occupation of his own brother, the accused No. 1 and that they live separately. This witness tells us that the accused No. 2 had come to him with one Havaldar from Goregaon Police Station. He also says that he knows the accused No. 2 by the name Khatri and further says that accused No. 2 said to him that he wanted to have a surety and gave him Rs. 500/- for his work. It is not understood how accused No. 2 could have an amount of Rs. 500/- with him when he was in the police custody. He says that it was he who arranged for the bail of accused No. 2 and he had directed the man who had come for accused to the accused No. 1 and accused No. 1 then approached Advocate Mehta for arranging the bail of accused No. 2. The witness therefore thus wants to suggest that accused No. 1 was only acting as per his instructions and some person on behalf of accused No. 2 had arranged for the cash amount of Rs. 5000/- and accused No. 1 was only accompanying that man. He is also the client of Advocate Mehta. He also knows Kalyanji Dhanji and he had availed of the services of Kalyanji Dhanji as a surety in 10 or 12 matters. He was cross-examined under section 162 of the Criminal Procedure Code for the purpose. In the face of the evidence of Advocate Mehta and Kalyanji Dhanji we do not attach much importance to the evidence of this witness and his evidence has to be left out of consideration. He was cross-examined under section 162 of the Criminal Procedure Code for the purpose. In the face of the evidence of Advocate Mehta and Kalyanji Dhanji we do not attach much importance to the evidence of this witness and his evidence has to be left out of consideration. The evidence of these two witnesses Advocate Mehta and Kalyanji Dhanji therefore establishes beyond doubt that the accused No. 1 moved heaven and earth for getting the accused No. 2 released on bail even by depositing amount of Rs. 5,000/- for his surety and spending further amounts for payment of commission to the surety and the fees of the Advocate. It is therefore, clear that the accused No. 1 can be said to be connected with the activities of the accused No. 2 who had indulged in several shady transactions with the bank by depositing in different banks forged cheques and demand drafts and withdrawing several amounts from the bank. 36. So far as the account in the National Grindlays Bank is concerned, the evidence is not very clear. This was regarding the purchase of the draft of Rs. 100/- by one M.L. Shah for the payee Saleraj Motilal. As we have said earlier the signature M.L. Shah on the application form of the draft has been denied by the accused No. 1 and it has ben established by the prosecution that is the signature of accused No. 1. We have also stated that the post card Ex. 70-K said to have been written by Saleraj Motilal has not been proved by the prosecution. Witnesses Heblekar (P.W. 1) Manager of National Grindlays Bank has been examined in the case but he does not identify accused No. 1 as the person who had applied for the demand draft of Rs. 100/-. The accused No. 1 was also not shown to him at the Police Station. The evidence of Heblekar therefore does not show that it was accused No. 1 who had signed the application form for the demand draft and was the person who had come to purchase the demand draft for being paid to Saleraj Motilal. Therefore the evidence in connection with the account in the National Grindlays Bank is of no assistance to the prosecution in connecting the accused No. 1 with the activities of the bank transactions. 37. Therefore the evidence in connection with the account in the National Grindlays Bank is of no assistance to the prosecution in connecting the accused No. 1 with the activities of the bank transactions. 37. There is one more account opened in the United bank of India in the name of J.B. Meyer by accused No. 3. In this connection one Wadia (P.W. 32) has been examined. He was a Head Cashier in the United Bank of India, Bombay. He speaks of having paid Rs. 24,000/- in currency notes of Rs. 1000/- each to the person holding token No. 41 and according to him it was accused No. 1 who had responded to the call for token No. 41 and that person signed the cheque on the reverse. Then he says that three or four weeks thereafter police came with one person and that was accused No. 1 and his statement was recorded on that day. Then permission was sought to put questions and cross-examine under section 162 of the Code of Criminal Procedure, and in that cross-examination he admitted that he stated before the police that the person to whom he gave the amount of Rs. 24000/- gave his name as Philips Baptista Alvaris and he is the person who signed on the back of the cheque. That person was shown to him and he says that he signed as J.B. Meyer and he persisted in saying that man was accused No. 1 who had came to collect the amount. It appears from the trend of his evidence that the account was opened by accused No. 3 in this bank in the name of J.B. Meyer and he was examined for the purpose of showing the complicity of accused No. 3 as the person who had withdrawn the amount of Rs. 24,000/- from the bank. But he wrongly points to the accused No. 1 as being a person who had come in the bank to receive the cash. He was an old man of 67 years when he gave the evidence and the evidence has been given about more than 3½ years after the incident and it is likely that he was committing a mistake. That evidence, however, does not help the prosecution in any way. That evidence has therefore to be left out of consideration so far as the accused No. 1 is concerned. 38. That evidence, however, does not help the prosecution in any way. That evidence has therefore to be left out of consideration so far as the accused No. 1 is concerned. 38. After considering this evidence and accepting the evidence of those persons which we have already indicated the following facts stand established : The accused No. 1 opened an account in the Chartered Bank in which the accused No. 2 had also opened the account. The accused No. 1 was present on 24-2-1970 in the Chartered Bank, Andheri when Mathuria received the telephone call from the accused No. 2 to find out the fate of this cheque deposited in the account of J.L. Mishra. That Mathuria informed the telephone caller that the cheque was returned unpaid and that he could send the man with authority to collect the same. The accused No. 1 sent Bhatkar with a cover to the Bank. That what was delivered by Bhatkar to the bank was a letter (Ex. 107) purporting to have been signed by J.L. Mishra. In response to that letter some papers were given by the bank to the bearer Manohar Dhatkar who was sent by accused No. 1. Those papers according to Mathuria were the returned cheque and the bank's slip showing the reason for which the cheque was returned. Bhatkar resided in the same chawl as the accused No. 1 and was knowing the accused No. 1. As per the evidence of Bhatkar the accused No. 1 and accused No. 2 were visiting each other frequently. The real name of the accused No. 2 is Dattatraya Laxman Shettigar but he has been assuming the name of J.L. Mishra and sometimes as S.K. Khatri and the accused No. 1 also giving out his name as J.L. Mishra or S.K. Khatri knowing full well that they are not the real names of accused No. 2. The accused No. 2 was arrested in the bank premises for having forged the signature of an introducer for opening an account in the United Bank, Goregaon branch. The accused No. 1 took active part in getting the accused No. 2 released on bail. He was a client of Advocate Mehta. He approached Advocate Mehta for getting the accused No. 2 released on bail. He took Advocate Mehta to the accused No. 2 for obtaining the signature on the vakalatnama. The accused No. 1 took active part in getting the accused No. 2 released on bail. He was a client of Advocate Mehta. He approached Advocate Mehta for getting the accused No. 2 released on bail. He took Advocate Mehta to the accused No. 2 for obtaining the signature on the vakalatnama. He represented to Advocate Mehta that the person who was to be got released on bail was S.K. Khatri though his real name was Dattatraya Laxman Shettigar. The accused No. 2 was ordered to be released on bail of Rs. 5000/- but it was accused No. 1 who told Advocate Mehta that he was unable to find surety for that amount. It was accused No. 1 who instructed Advocate Mehta to take orders from the Court for depositing the cash amount of surety in Court and accordingly Advocate Mehta obtained that order from the Court. It was accused No. 1 who arranged for the amount of Rs. 5000/- to be deposits with Advocate Mehta for the surety amount. It was accused No. 1 who went to Kalyanji Dhanji with the peon of Advocate Mehta and brought Kalyanji Dhanji to Advocate Mehta. The accused No. 1 paid Rs. 250/- for payment of commission to Kalyanji Dhanji who agreed to stand as surety and also paid the fees of Advocate Mehta for the work he was doing for getting the accused No. 2 released on bail. Besides this accused No. 1 has been making false statements at different times and giving false explanations. He gave false addressed at different times to suit his purpose. He denies obvious facts which could not have been denied. In his statement under section 342 of the Code of Criminal Procedure (old) he has denied that he approached Advocate Mehta in connection with bail application of one Khatri which is falsified by the evidence of Advocate Mehta. On the other hand he is telling that one man was sent by his brother to him and he asked him to take him to Advocate Mehta. He denies for whom the bail application was given. He denies that he deposited the amount of Rs. 5000/- with Advocate Mehta. When question was put to him that he told Advocate Mehta that it was not possible for him to give solvent surety in the amount of Rs. He denies for whom the bail application was given. He denies that he deposited the amount of Rs. 5000/- with Advocate Mehta. When question was put to him that he told Advocate Mehta that it was not possible for him to give solvent surety in the amount of Rs. 5000/- he admitted that fact of having told Advocate Mehta that he was not in a position to produce solvent surety as ordered by the Court. If he was not concerned with the accused No. 2 who was posing as S.K. Khatri then there was no question of his being told or not able to furnish the security. Then he has denied that he had asked Advocate Mehta to make an application for depositing the amount of Rs. 5000/- in Court. He, however, admits that he was sent by Advocate Mehta to Kalyanji Dhanji and Kandivli. In answer to another question he stated that Kalyanji Dhanji agreed to stand surety but he does not know if it was for accused No. 2. He also denied to have gone to the bank on 28-2-1970 for depositing an amount of Rs. 25/- in his savings account through actually the amount has been deposited by him. He gave his false explanation for the first time that he had sent his man regarding which no suggestion has been made in the cross-examination. That would show that the accused No. 1 is deliberately giving false explanations from time to time. The conduct of the accused coupled with the several circumstances which we have enumerated above would show that the accused No. 1 was not only interested in the accused No. 2 but was intimately connected with him and an inference could be drawn from this circumstance against the accused No. 1 that he was also involved in the commission of the offence along with accused Nos. 2, 3, 4 and 5. 39. We do not see any reason to disbelieve the evidence of either Mathuria or D'Mello who swore that the accused No. 1 had come to the bank on 28-2-1970 ant not only that but Mathuria had drawn the attention of D'Mello about the presence of the accused No. 1 in the bank. On the 24th of February, 1970, the account was opened by the accused No. 1. On the 24th of February, 1970, the account was opened by the accused No. 1. On 27th February, 1970, i.e. three days afterwards he again comes to the bank to deposit the small amount of Rs. 25/-. Again on the next day he comes to deposit a further small amount of Rs. 25/- in the bank which is at a distance of 2 1/2 miles from the place of his residence. At this time there is also an account opened by the accused No. 2 in the same bank short time before. It does not appear to be a mere coincidence that the accused No. 1 happened to open this account in this bank when the account of accused No. 2 was opened only a few days before and that was being operated fraudulently. In our view the opening of the account of the accused No. 1 on 24-2-1970 was deliberate and it can very well be inferred that it was for the purpose of keeping a watch over the accused No. 2 who was fraudulently operating the account at the instance of the accused No. 1. 40. The circumstances enumerated by us above may not singly be sufficient to show the complicity of accused No. 1 in the fraudulent dealings then by the accused No. 2 but if all the circumstances are taken into consideration when it leaves no doubt in our mind that the accused No. 1 and the accused No. 2 and the other accused persons were working hand in glove and they together had agreed to do these acts which would amount to offences. From the circumstances put together there can be the only inference that could be drawn and we do not doubt the involvement of the accused No. 1 in the conspiracy to defraud the bank depositors. Accordingly the charge No. 1 against the accused No. 1 must be held to be proved. We, therefore, do not see any substance in the appeal filed by the accused No. 1 Accordingly we uphold the conviction and sentence passed against the accused No. 1 and dismiss the appeal. -----