N. D. VENKATESH, J. ( 1 ) THIS petition under Section 397 r/w. 401 Cr. P. C. is by the accused in C. C. 79/ 76 on the file of the Chief Metropolitan magistrate, Bangalore City He was prosecuted therein for offences of cheating and breach of trust. The learned magistrate acquitted him of the charge of breach of trust or misappropriation, but held him guilty of cheating, an offence punishable under Sec. 420 I P. C. That finding has been confirmed by the prl. Civil, Civil and Sessions-Judge, Bangalore, in Cr A. 49/81 on his file, by his judgment dated 4-9-1982. Challenging these concurrent findings of the courts below the accused has preferred this revision. ( 2 ) THIS case has an interesting background and therefore the event that led to the investigation into this episode, the direction that that investigation took, the manner how the case was prosecuted and tried may be noted : the H. M. T. Bangalore had received an account-payee demand draft of the value of Rs 10,170-74, dated 9-8-1975, and drawn in favour of the H. M. T. Ltd. , watch Factory (Account No. 2 Bangalore city)"by the State Bank of India, Sector-7, Madhya Marg, Chandigarh. This in turn was sent by the H. M. T. , to the united Commercial Bank, K. G. Road, bangalore, for collection and crediting the said sum to their account in that bank. For reasons not revealed or yet known, the amount covered by this account payee draft which ought to have been credited only to the account of the h. M. T. . . in the United Commercial Bank, came to be credited to another account in that very Bank. It was so credited to the account of one Gurumurthy, who has been examined by the prosecution as their 14th witness (P. W 14 ). The H. M. T. in the usual course used to receive monthly statements of their accounts from the United Commercial Bank (UCO bank ). When they received their monthly statement some time after they had sent the aforesaid draft for collection, they came to know that the sum of Rs. 10,170-74 covered by the aforesaid draft had not been credited to their account. When they received their monthly statement some time after they had sent the aforesaid draft for collection, they came to know that the sum of Rs. 10,170-74 covered by the aforesaid draft had not been credited to their account. Therefore, in the month of November, 1975 they wrote to the Bank enquiring about this matter The then Manager of the UCO bank whose duty it was to satisfactorily explain his customer about this lapse approached the local police with his own version of the episode pointing his finger towards this petitioner. The then sub- inspector of Police, Chickpet, Bangalore city simply proceeding in the direction pointed out by the Bank Manager filed his final report in the matter for offences under Sections 468 and 420 I. P C. , against the petitioner (accused) who, in those days, was only a Peon in that Bank ( 3 ) THE charge against the accused is that having dishonestly induced Gurumurthy (P W. l4) to deliver to him (the accused) two signed (by Gurumurthy) blank withdrawal slips, which were capable of being converted into valuable securities, had used the same to withdraw the said sum of Rs 10,170-74 from his (Gurumurthy's) account and thereby had cheated him (Gurumurthy), and, in the process, had also cheated the United commercial Bank and therefore was liable for an offence of cheating punishable under Sec. 420 I. P. C. ( 4 ) NOW, both the courts below have held that this charge against the accused has been proved to the hilt and have sentenced him to suffer R. I. for one year and to pay a fine of Rs. 1000/-, and, in default, to suffer further R. I. for 3 months. ( 5 ) THE only question that arises for consideration in this revision is : is the accused guilty of the offence with which he has been charged ? ( 6 ) THERE was no complaint by gurumurthy (P. W. 14) that he had at all been cheated by the accused. The evidence of Gurumurthy is that he and the accused being neighbours knew each other since some years ; that the accused was in his confidence: and that he used to utilise the services of the accused to deposit and to withdraw monies from this Bank from his (Gurumurthy's) account. The evidence of Gurumurthy is that he and the accused being neighbours knew each other since some years ; that the accused was in his confidence: and that he used to utilise the services of the accused to deposit and to withdraw monies from this Bank from his (Gurumurthy's) account. ( 7 ) THE complaint that had in turn prompted the Manager of the UCO Bank to approach the police was the complaint of the H M. T. to the Bank asking as to what had happened to their account payee demand draft and as to why the money that was due to them under that draft had not been credited to their account. The Manager who had made a show of a preliminary probing gave a complaint to the police, side tracking the real question. The police also appear to have willingly gone on a wrong track. ( 8 ) THE one and the only question that required an answer by all concerned was as to how, under what circumstances and with whose connivance the sum of rs. 10,170-74, covered under the account payee demand draft standing in the name of the H. M. T. , came to be credited to the account of Gurumurthy (P. W. 14 ). Gurumurthy was not an employee of the said Bank. The accused, though was an employee in the said Bank was the most minor functionary therein. He was only a Peon. And it is not the case of the bank Manager or of any other Bank official that the accused also used to write accounts Being a Peon, his business was to obey the orders of all those who were superior to him in that Bank and carry the papers from table to table or from place to place ( 9 ) EVERY Bank has a certain procedure following which it conducts its business. A demand draft of the type referred to above, before it should find its proper place in the Bank, has necessarily to travel in the procedural line laid down for that purpose. Hence, all those functionaries who had handled this draft in the Bank and had got the amount covered under that draft credited to gurumurthy's account ought to have been found out. They and others who may have colluded with them in this dirty business are the real culprits. Hence, all those functionaries who had handled this draft in the Bank and had got the amount covered under that draft credited to gurumurthy's account ought to have been found out. They and others who may have colluded with them in this dirty business are the real culprits. That has not been done in the instant case. The Manager of the Bank conveniently overlooks this aspect in his complaint for reasons known to him. I should better leave this for a thorough departmental enquiry by those responsible to the affairs of this Bank. ( 10 ) NOW, coming to the investigation. I have already stated above that the investigating officer has gone on a wrong track. He has not directed his investigation to find out the real culprits. As to why he did so is not clear. This also is a matter for the higher ups in the police Department to probe into. ( 11 ) SECTION 420 I. P. C. provides punishment for cheating and thereby inducing the person cheated to deliver any property or to alter or destroy a valuable security. ( 12 ) THE ingredients of cheating we find in Sec. 415 I. P. C. It consists of two elements. They are (i) deception of a person and (ii) fraudulent or dishonest inducement of that person to deliver any property to any person or to consent to a property being retained by any per: on or to do any thing causing or likely to cause damage or harm to that person's body, mind, reputation or property. ( 13 ) THE explanation to Sec. 415 i. P. C. defines the term deception. It says "a dishonest concealment of facts is a deception within the meaning of" Sec. 415 I. P. C. Now, can the charges against the accused be sustained on the evidence of Gurumurthy and other bank officials who have given evidence for the prosecution ? ( 13 ) THE explanation to Sec. 415 i. P. C. defines the term deception. It says "a dishonest concealment of facts is a deception within the meaning of" Sec. 415 I. P. C. Now, can the charges against the accused be sustained on the evidence of Gurumurthy and other bank officials who have given evidence for the prosecution ? Gurumurthy says, as briefly referred to at para-6 above, that he and the accused knew each other well, that he had opened a savings bank account in the UCO Bank branch at K. G. Road on the advice of the accused ; that he (witness) also owed some money to the accused ; that the accused had demanded from him the said sum ; that he did rot have any cash with him; that the accused had brought two withdrawal forms of the bank with him ; and that he (the accused) had obtained his (witnesse's) signatures on the same stating that he would withdraw the sums from his account after he (the witness) remits moneys in his (witnesse's) bank account. Gurumurihy's explanation re : his handing over of the two blank signed withdrawal forms to the accused does not strike as genuine. In a similar situation, a situation as Gurumurthy was said to be in, what any other man of average intelligence would have done is that he would have given, if he wanted to satisfy his creditor that way, two withdrawal forms fully filled in with details as to the precise sums etc. , and postdating the same. And not that way, as Gurumurthy says, he had done. His evidence does not inspire any confidence at all. In this connection it is very interesting to know that the 1st Addl. Chief Metropolitan magistrate who had tried this case and pronounced his judgment at the first instance on 14-6-1978 holding the accused guilty had not even chosen to examine this Gurumurthy (C. W. 13 in the charge sheet ). This was noticed by the Sessions judge in the appeal preferred by the accused and the learned 1st Addl. Sessions Judge by his Judgment dated 20-12- 1978 (in Crl. A. 58/78) on his file) set aside the judgment of the trial court and remitted the case for a fresh disposal. Thereafter, on 19-8-1980, for the first time Gurumurthy came to be examined. Sessions Judge by his Judgment dated 20-12- 1978 (in Crl. A. 58/78) on his file) set aside the judgment of the trial court and remitted the case for a fresh disposal. Thereafter, on 19-8-1980, for the first time Gurumurthy came to be examined. Gurumurthy further stated in his evidence that he did not know that any money was at all to his credit in his account at the relevant time. He says he does not also know how a large sum of money of rs. 10,170-74 had come to his credit in the bank. His categorical statement in his cross-examination is that he used to utilise the services of his friend, the accused, to remit his (witnesse's) moneys to his account and to withdraw the same. That that is precisely the case of the accused in his statement He says as requested by Gurumurthy he had given the withdrawal forms signed and filled in by him (Gurumurthy) to the Bank, obtained the sums from the Bank and had given the same to him (Gurumurthy ). We need not accept this explanation as wholly true. But does it not, in the circumstances, appear to be plausible ? ( 14 ) FURTHER, if we agree with the prosecution that the accused having cheated Gurumurthy had obtained his signed withdrawal forms in order to use the same to withdraw the large sums which had come to Gurumurthy's account but without Gurumurthy's knowledge, we have necessarily to infer that the accused having cheated the bank had also got the sum covered by the aforesaid demand draft credited to the account of gurumurthy. The prosecution and of- course, the Bank officials, want us to believe that it was so. This assumption on their part appears to me quite preposterous. How the accused, a Peon in that Bank could have assumed the powers of all the officials serving in the Bank and accomplished this job ? or had he hypnotised all of them into making wrong entries, adjustments in the various registers and books of the Bank and payments. ( 15 ) BOTH the courts below have not correctly comprehended the questions involved in the case. They simply went by some material placed on record which show the accused having withdrawn certain sums of money from the account of Gurumurthy after presenting Gurumurthy's withdrawal forms. ( 15 ) BOTH the courts below have not correctly comprehended the questions involved in the case. They simply went by some material placed on record which show the accused having withdrawn certain sums of money from the account of Gurumurthy after presenting Gurumurthy's withdrawal forms. From this fact they have jumped to the conclusion that the accused had cheated the bank and Gurumurthy and has deprived them of the money in question. But, how did the bank receive that sum and in turn had credited to the account of Guru- murthy, which are of crucial importance, has not at all been taken note of. And added to this, the courts below and in particular the trial court appears to have placed considerable reliance on a certain statement (Ext. P. 9) said to have been made by the accused to the Manager of the UCO Bank (P. W. 10) admitting his guilt. No doubt, the trial court further says that even if that statement is not given much weight, there was other overwhelming evidence enough to implicate the accused. ( 16 ) I have gone through that statement after obtaining an English version of the same. The accused appears lo say there about his having taken this draft from one clerk to the other and also says about his having placed a voucher prepared in the name of Gurumurthy along with the draft and presenting it to another clerk. But, who wrote those account books, and will not the concerned clerk before making entries into the concerned account book or reg'ster see the draft ? Had they made any entries without seeing the draft ? And it is no body's case that the accused had written by his own hand in the concerned register or account book of the Bank crediting this sum covered by the draft in the account of Gurumurthy. In the circumstances, that statement carries absolutely no value. And certainly, ofcourse, is not of any assistance in knowing as to how that sum had been credited to gurumurthy's account. The courts below have committed serious errors in not focussing their attention to the relevant question involved. ( 17 ) AT all levels, commencing from the first complaint, running through the investigation and culminating in the trial, the effort appears to have been directed to save a few others who had had a hand in this nefarious game. The courts below have committed serious errors in not focussing their attention to the relevant question involved. ( 17 ) AT all levels, commencing from the first complaint, running through the investigation and culminating in the trial, the effort appears to have been directed to save a few others who had had a hand in this nefarious game. More than one appear to have joined togcthor in getting the sum covered under the aforesaid draft credited to Gurumurthy's account. The truth can come out only if there is a thorough departmental enquiry into this episode. That will also lay bare the part, if any, this Peon (accused) may have played in this sordid game. ( 18 ) HOWEVER, as it is, for reasons stated above, I am of the view that the prosecution has failed to prove its charges against the accused beyond all reasonable doubt. The findings of both the courts below deserve to be set aside. ( 19 ) ACCORDINGLY, for reasons stated above, this petition is allowed. The conviction and sentence imposed by the courts below against this petitioner is hereby set aside. The accused is acqutted of the charge levelled against him. Fine, if any, he has paid to be refunded to him forthwith. Ball bonds, if any, obtained from him stand cancelled. --- *** --- .