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2003 DIGILAW 802 (PNJ)

N. P. Singh v. State of Punjab

2003-05-23

S.S.SARON

body2003
JUDGMENT S.S. Saron, J. - This order will dispose of the above mentioned four Criminal Appeal Nos. 236, 237, 238, and 239-SB of 1987 filed by the appellant-N.P. Singh as they involve somewhat similar facts and circumstances. 2. Case FIR No. 33 of 27.6.1983 was registered by the Central Bureau of Investigation (C.B.I. - for short) against appellant N.P. Singh, who was working as a clerk in the State Bank of India, at Dhab Basti Ram Branch, Amritsar (Bank - for short) from 14.2.1983 to 16.3.1983. The said FIR was registered for the offences under Sections 420, 468, 471, 477-A of the Indian Penal Code (Indian Penal Code - for short) and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (P.C. Act - for short). The other connected appeals where the allegations are somewhat similar also arise out of case FIR Nos. 30, 31 and 32 dated 27.6.1983. The facts are taken primarily from appeal No. 236-SB of 1987. 3. The appellant was a Saving Bank Counter Clerk, Current Account Counter Clerk, F.D.R. Counter Clerk, Charges Counter Clerk in the Bank. He used to write the Day-Book, Transfer Scroll, Clean Cash Book, General Ledger. However, it was not his duty to authenticate the entries of balance in the account books. The allegations against the appellant are that he forged various documents and made fictitious entries in the account books and fraudulently withdrew a sum of Rs. 6,620/- during the afore-referred period through one Saving Bank Account No. 3457 by fraudulently increasing the bank balance on various occasions, by crediting amounts in the account by making additions, alterations in the various books of the Bank. The appellant by making fictitious credit obtained a sum of Rs. 2,000/- on 14.2.1983. He authenticated the balance by forging initials of one Sh. B.C. Kapur, an Officer of the Bank. In the Day Book of the said date, he wrote an amount of Rs. 2,000/- on the credit side against his account No. 3457 and changed the total amount from Rs. 410/- to Rs. 2,410/-. In this manner the grand total was changed from Rs. 28,708.05 to Rs. 30,708.05. Resultantly the increase in the Clean Cash Book was changed. However, the figure of Rs. 28,705.05 in the summations remained un-changed. The figure in the General Ledger Book was also changed. 410/- to Rs. 2,410/-. In this manner the grand total was changed from Rs. 28,708.05 to Rs. 30,708.05. Resultantly the increase in the Clean Cash Book was changed. However, the figure of Rs. 28,705.05 in the summations remained un-changed. The figure in the General Ledger Book was also changed. These corrections and alterations regarding the net balance were made at page 57 of the General Ledger as Rs. 48,71,431.68 instead of Rs. 48,69,431.68. Further allegation against the appellant is that he on 4.3.1983 obtained another amount of Rs. 3,120/- by making fictitious entry in the aforesaid saving bank account. He changed the total credit from Rs. 3,120/- to Rs. 5,150/- in the Transfer Scroll at page No. 148 as the last item without number and authenticated the balance himself. He changed the figure of S.T.D.R. interest A/C on debit side of Clean Cash Book from Rs. 330/- to Rs. 3,450/-. The next allegation is that on 12.3.1983 he made another fictitious entry in the saving bank account and fraudulently obtained Rs. 1,500/-. He forged the initials and authenticated the entry in the S.B. Day Book. A credit of Rs. 1,500/- was written by the appellant and was deleted at the time of balancing the books because when the fraud was detected in the middle of March, 1983, the books dated 12.3.1983 were not balanced. However, the entry of Rs. 1,500/- remained in the Saving Bank transaction sheet of the aforesaid saving bank account which facilitated the appellant to withdraw an amount of Rs. 1,300/- on 14.3.1983 and Rs. 200/- on 16.3.1983. He also withdrew an amount of Rs. 2,000/- and Rs. 3,120/- between 16.2.1983 to 23.2.1983 and 5.3.1983 to 12.3.1983 respectively. In this manner, he cheated the State Bank of India to the extent of Rs. 6,620 by forging and tampering with the bank account by misusing his official position. 4. After filing the challan, the appellant was charged for the offences attributed to him as indicated above. The prosecution to prove its case examined as many as 13 witnesses. 5. The statements of the appellant was recorded under Section 313 Criminal Procedure Code wherein he stated that he was innocent. 4. After filing the challan, the appellant was charged for the offences attributed to him as indicated above. The prosecution to prove its case examined as many as 13 witnesses. 5. The statements of the appellant was recorded under Section 313 Criminal Procedure Code wherein he stated that he was innocent. He further stated that other officials posted at the Bank had entered into a conspiracy to cheat the Bank and they had been making false entries in the various books and they even acted in contravention of the rules and failed to perform their duties. 6. The learned Special Judge, after going through the evidence and material on record found the appellant guilty of the offence attributed to him and accordingly sentenced him for the various offences as mentioned above. The appellant was ordered to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/- and in default of payment of fine to undergo further rigorous imprisonment for three months. All the substantive sentenced were ordered to run concurrently with the sentences passed in the connected cases. The net result was that the accused was convicted and sentenced to undergo rigorous imprisonment for three years besides fine and in default of payment of fine to undergo further rigorous imprisonment for three months. 7. The learned counsel for the appellant has contended that the learned trial Court had committed a grave error in convicting and sentencing the appellant for the offences attributed to him and that the offences are not even remotely made out against the appellant. Further that the evidence on record did not support the case of the prosecution. Besides, not less than five charges were framed against the appellant, however, all the charges suffer from the vice of particulars which alone could have provided the appellant the necessary framework to adjudge the merits of the prosecution witnesses and lead appropriate defence. It is contended that the vagueness of the charges is so manifest that a proper trial could not have been held on the basis thereof. Moreover, in order to establish the various documents on record which are alleged to have been either drawn by the appellant, signed by him or fabricated by him, the prosecution in order to prove the same had examined K.N. Parshad PW-12, who it is stated does not appear to be a Handwriting Expert. Moreover, in order to establish the various documents on record which are alleged to have been either drawn by the appellant, signed by him or fabricated by him, the prosecution in order to prove the same had examined K.N. Parshad PW-12, who it is stated does not appear to be a Handwriting Expert. Even otherwise the testimony of a Handwriting Expert can never be fully relied upon. Therefore, no value can be attached to his testimony. It is also contended that the prosecution had obtained sanction of the accused and in this regard D.N. Kalia, PW-6 was examined to prove the sanction Ex. PW6/A. He, in his cross-examination could not give the date of sanction. Besides, Nirmal Singh (DW-1) was posted at Chandigarh who stated that the Regional Manager was not the appointing authority of the clerk in the State Bank of India and this statement was not challenged during his cross- examination. It is also contended that the Sub Inspector did not obtain permission to investigate the case from the Special Judicial Magistrate Ist Class, Patiala, and he did not place on record the permission granted to him nor he mentioned the name of the Judicial Officer who granted the permission. Therefore, it remained unproved on record that the investigation in the present case had been conducted by Shri Om Parkash (PW-13) after securing the necessary permission of a competent Magistrate. Therefore the challan of the accused on the basis of his report is bad in law. 8. In response, learned counsel for the State has submitted that the prosecution has proved its case in all aspects and the contentions as urged by the learned counsel for the appellant are without any basis and the finding of the conviction is not liable to be upset on the basis of the contentions as urged. 9. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. It is appropriate to note that the allegation of the charges being vague on the basis of which it is alleged that the same could not have provided the appellant the necessary framework to adjudge the merits of the prosecution witnesses and lead appropriate defence, are without any substance. It is appropriate to note that the allegation of the charges being vague on the basis of which it is alleged that the same could not have provided the appellant the necessary framework to adjudge the merits of the prosecution witnesses and lead appropriate defence, are without any substance. There is nothing on record to show that the charges framed against the appellant are in any manner vague or that there is any defect in framing of the charge. Besides, it has also not been shown as to whether any prejudice has been caused to the appellant in the alleged defective framing of the charge. Even otherwise, in terms of Section 464 of the Code of Criminal Procedure (Criminal Procedure Code - for short), no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge, was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. No failure of justice is shown to be occasioned by the appellant. Even otherwise as is well known that the object of the charge is to give the accused notice of the matter of what he is charged with. If the necessary information is conveyed or made known to him in other ways or he is otherwise aware of the allegations attributed to him, then it cannot be said that a prejudice has been caused to him so as to invalidate the conviction and sentence. Therefore, the plea of the appellant besides being devoid of merit is even otherwise not tenable in view of the provisions of Section 464 Criminal Procedure Code 10. The contention regarding the evidence of the handwriting expert is not liable to be relied upon may be considered. In this respect it may be noticed that it is not shown that Mr. K.N. Parsad (PW-12) was not a Handwriting Expert. He as per his deposition was a Junior Scientific Officer. He has proved the forgeries on the record. The contention regarding the evidence of the handwriting expert is not liable to be relied upon may be considered. In this respect it may be noticed that it is not shown that Mr. K.N. Parsad (PW-12) was not a Handwriting Expert. He as per his deposition was a Junior Scientific Officer. He has proved the forgeries on the record. Besides, the Honble Supreme Court in Alamgir v. State (NCT, Delhi), 2003(1) SCC 21, held that there is no rule of law, nor any rule of prudence which has crystalised into a rule of law that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. However, since human judgment cannot be said to be totally infalliable, due caution shall have to be exercised and the approach has to be that of care and caution and it is only upon probe and examination the acceptability or the credit- worthiness of the same depends. In the case in hand, the conviction of the appellant, is not based solely on the testimony of the handwriting expert but also from the other witnesses and the circumstances which fully established guilt of the appellant. 11. The contention of the learned counsel for the appellant regarding sanction for prosecution of the appellant being not proved and that D.N. Kalia (PW-6) who was examined to prove the sanction Ex. PW1/A could not give the date of sanction may be considered. The other contention that the Regional Manager was not the appointing authority of the clerks in the State Bank of India, as stated by Nirmal Kumar (DW-1) may also be considered. The learned counsel for the appellant has not shown from the appointment letter of the appellant as to who was his appointing authority in accordance with the rules applicable to him. In fact the letter of appointment of the appellant as a clerk in the Bank even has not been produced on record. Therefore, the mere bald assertion of Nirmal Kumar (DW-1) that Regional Manager was not the appointing authority is not sufficient to hold that necessary previous sanction for prosecution of the appellant was not obtained. In fact the letter of appointment of the appellant as a clerk in the Bank even has not been produced on record. Therefore, the mere bald assertion of Nirmal Kumar (DW-1) that Regional Manager was not the appointing authority is not sufficient to hold that necessary previous sanction for prosecution of the appellant was not obtained. Even otherwise the order of conviction is not liable to be set aside for want of sanction or defective sanction in terms of Section 465 Criminal Procedure Code which provides that finding of sentence or order passed by a Court of competent jurisdiction is not to be reversed or altered by Court of appeal confirmation or revision on account of any error, omission or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has, in fact, been occasioned thereof. Besides, in terms of Section 465(2) Criminal Procedure Code in determining the question of irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. The petitioner has not shown any failure of justice which would warrant interference in appeal. Besides, the question regarding defect in the sanction is not shown to have been raised before the learned trial Court. 12. The next contention of the learned counsel for the appellant is that the Sub Inspector did not obtain permission to investigate the matter from the Judicial Magistrate First Class. In my view this contention is also without any merit. Admittedly, the offence attributed to the appellant is a cognizable one. Section 2(c) Criminal Procedure Code envisages that "Cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with First Schedule or under any other law for the time being in force, arrest without warrant. However, in terms of Section 2(c) "Non-cognizable offence" means an offence for which and "non- cognizable case" means a case in which a police officer has no authority to arrest without warrant. Besides, in terms of Section 156 Criminal Procedure Code a police officer has power to investigate a cognizable offence. However, in terms of Section 2(c) "Non-cognizable offence" means an offence for which and "non- cognizable case" means a case in which a police officer has no authority to arrest without warrant. Besides, in terms of Section 156 Criminal Procedure Code a police officer has power to investigate a cognizable offence. It is provided in terms of Section 156(1) thereof that any Officer in-charge of a Police Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII Criminal Procedure Code Sub-section (2) provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. 13. Inspector Om Parkash (PW-14) is an Officer of Central Bureau of Investigation. The Central Bureau of Investigation functions under the provisions of the Delhi Special Police Establishment Act, 1946 (D.S.P.E. for short). Section 2 of the D.S.P.E. Act provides for constitution and powers of Special Police Establishment. Sub-section (3) thereof provides that any member of the said police establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise in any Union Territory any of the powers of the officer in- charge of a police station in the area in which he is for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer in-charge of a police station discharging the functions of such an officer within the limits of his station. In terms of Section 5 of the D.S.P.E. Act, the Central Government may by order extend to any area in a State, not being a Union Territory, the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3. In terms of Section 5 of the D.S.P.E. Act, the Central Government may by order extend to any area in a State, not being a Union Territory, the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3. Section 5(2) provides that where by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government, may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member or a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. The learned counsel for the appellant has not been able to show as to how or in what manner there has been an infraction of the said provisions and neither was any such plea shown to have been raised by the appellant before the learned trial Court. Therefore, provisions of the D.S.P.E. Act read with Section 156 of the Criminal Procedure Code would confer jurisdiction on Inspector Om Parkash (PW-14) to investigate into the offence without the sanction of the Magistrate. Therefore, this contention of the appellant is also without any force. 14. Learned counsel for the appellant lastly contended that in view of the fact that the occurrence is of the year 1983 and the appellant has undergone the travails of prosecution and trial for all these years, his sentence of imprisonment be reduced to that already undergone. In support of his contention he relies upon R.V. Lyngdoh v. State (Delhi) Spl. Establishment, 1999(1) R.C.R. (Criminal) 858 (SC). The appellant in the case in hand has been held guilty for the offence under Section 5(1)(d) of the Prevention of Corruption Act, punishable under Section 5(2) which provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable for fine. The proviso envisages that the Court may for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. Therefore, it is to be seen as to whether there are any special reasons for imposing a sentence of less than one year. After perusing the record, in my view, there are no special reasons which may required the reduction of sentence to less than one year. In the case of R.V. Lyngdohs (supra), the appellant had mis-appropriated an amount of Rs. 52,465/- belonging to the Government. The said appellant did not challenge his conviction. However, it was submitted that there was no evidence to show that the amount was actually taken away by the appellant and was utilised by him for his own purposes. The Honble Supreme Court in the facts and the circumstances of the said case and also keeping in view the old age of the appellant therein and his health, reduced the sentence to less than the minimum sentence, which, it was observed, would meet the ends of justice. There is no such special circumstances in the case in hand, which would warrant the imposition of sentence less than the minimum prescribed under the provisions of Prevention Corruption Act. In fact, it is not shown by the appellant as to how much he has already undergone. Therefore, the appellant has been sentenced to imprisonment of two years for the offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. 15. However, keeping in view the time gap that has lapsed and the travails of the prosecution that the appellant has faced for all these years it would be just and expedient to reduce the sentence of imprisonment to one year for the offence under Section 5(1)(d) punishable under Section 5(2) of the Prevention of Corruption Act. 16. It is also appropriate to note that the appellant has been convicted to three years rigorous imprisonment for the offences under Sections 420 and 477-A Indian Penal Code. Besides, he has been sentenced to undergo one year rigorous imprisonment for the offence under Section 468 Indian Penal Code. Further he has been sentenced to one year imprisonment for the offence under Sections 471 and 465 Indian Penal Code. All the substantive sentences were ordered to run concurrently. Besides, fine was imposed for the various offences. Besides, he has been sentenced to undergo one year rigorous imprisonment for the offence under Section 468 Indian Penal Code. Further he has been sentenced to one year imprisonment for the offence under Sections 471 and 465 Indian Penal Code. All the substantive sentences were ordered to run concurrently. Besides, fine was imposed for the various offences. The sentences passed in the connected cases was ordered to run concurrently. In the facts and circumstances of the case, the sentence of three years rigorous imprisonment for the offence under Sections 420 and 477-A Indian Penal Code is reduced to one year. The other sentences as imposed as also the fine shall remain as they are. The substantive sentences as imposed in all the cases shall run concurrently. The appeal is thus partly allowed to the extent of reduction in the sentence of imprisonment to one year as indicated above. Appeal partly allowed.