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2007 DIGILAW 148 (GAU)

Pradip Kumar Rava v. State of Assam

2007-02-21

A.M.SAIKIA

body2007
1. Heard learned counsel for the parties. 2. The conviction of the appellant under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947 ('the Act') and his subsequent sentence to undergo simple imprisonment for 6(six) months and pay a fine of Rs. 5,000 in default to undergo further imprisonment for one month has been assailed in this criminal appeal. 3. The prosecution in brief is that the appellant while serving as a Branch Manager, Indian Overseas Bank, ('the Bank') Besseria Branch during 1987-88 entered into a criminal conspiracy with one Surjya Krishna Sarma and Sanjay Kumar Sharma and in pursuance thereof fraudulently and dishonestly purchased cheque No. 676103 dated 26.12.1987 for Rs. 61,333.23 paise on 30.12.1987 and credited the entire amount in the account of M/s. Ganesh Trading Company, a proprietorial concerned of Surjya Kumar Sarma who died during the trial, though the cheque was never sent to the main Bank, i.e., the State Bank of India , Khonsa Branch, Arunachal Pradesh for collection and thereby obtained undue pecuniary advantage either to the appellant himself or others causing corresponding pecuniary loss to the Bank. 4. An FIR dated 29.7.1988 was lodged by the Central Bureau of Investigation, Shillong ('the CBF) and on the basis of the FIR, investigation ensued and the police on completion of the investigation submitted charge sheet and the trial proceeded against the two accused persons including the appellant as well as Sanjay Kumar Sharma when 3rd accused Sri Surjya Kumar Sharma died during the trial. 5. The prosecution examined as many as 12 witnesses including the Investigating Officer and Head writing expert and exhibited 96 documents as exhibits in support of their case when defence adduced none and pleaded not guilty. 6. The learned Special Judge upon consideration and appreciation of the testimony of the witnesses as well as after examination of all the exhibits came to the finding that prosecution failed to prove the charge of conspiracy between the parties and accordingly Sanjay Kumar Sharma was acquitted and convicted the appellant holding that the appellant, being a public servant, was involved in criminal misconduct by abusing his position of Bank Manager resulting in pecuniary loss to the bank. It was the specific finding of the trial court to the effect that though there was evidence that the amount was paid back, but the same was done only after a period of three years after utilizing the money and such deposit of the amount came without any interest. 7. In order to examine the correctness and legality of the conviction and sentence of the appellant the deposition of the relevant witnesses have been duly appreciated particularly the testimony PW-6, Sri Subrata Kumar Dey, Branch Manager, State Bank of India P.W.7, Mahendra Raheng, Branch Manager of the Bank ; P.W.8, Bishnu Prasad Rava, the clerk of the Bank. 8. On discreet inspection of the testimony of those witnesses, it goes to indicate that as per procedure of the Bank, the Branch Manager has his discretionary power to purchase a cheque and after such purchase, remittance slip has to be sent to the paying Bank for collection of the amount so purchased. It is manifestly come from the evidence of those witnesses that such system of banking for purchasing cheques from reliable parties are adopted in the interest of the Bank and the entire process of such purchase has been done on good faith and in the said process there was no mala fide on the part of the appellant. From the word of P.W.8 it may be noticed as under : "There is a system in our bank for purchasing cheques of reliable parties for the interest of the bank. I cannot say if P.K. Rava purchased this cheque believing that the party was reliable. We sent the cheque for collection in good faith. I did not notice any mala fide when I received the cheque and made the entry." Even P.W.7 in his further deposition in cross testified that in Ext. A, a letter bearing No. 99/90 dated 26.5.1990 issued by the Branch Manager of the Bank addressed to the appellant, it was mentioned that M/s. Ganesh Trading Co. issued a duplicate cheque in lieu of earlier cheque and the amount was realized from Tinsukia Bench. 9. A careful perusal of Ext. A, a communication from the Bank abovementioned sent to the appellant clearly indicate that the proceed of the amount as mentioned above, sent for collection was duly received on 28.2.1989. 10. issued a duplicate cheque in lieu of earlier cheque and the amount was realized from Tinsukia Bench. 9. A careful perusal of Ext. A, a communication from the Bank abovementioned sent to the appellant clearly indicate that the proceed of the amount as mentioned above, sent for collection was duly received on 28.2.1989. 10. Besides, on careful perusal of the entire deposition of the witnesses, it transpires that there was no evidence on record to show that the appellant abused his discretionary power as Bank Manager dishonestly and fraudulently. 11. In a case of S.P. Bhatnagar and Another v. State of Maharashtra, AIR 1979 SC 826 the Supreme Court dealing with the scope of 'abuse of position' stipulated under section 5(1)(d) of the Act, in paragraphs 21 and 26 observed that the above position in order to come within the mischief of section 5(1)(d) of the Act must necessarily be dishonest so that it might be proved that the accused caused deliberate loss to the department. To rope a person in section 5(1)(d) of the Act, the prosecution must prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person. 12. It would, therefore, be necessary to find out in a case as to whether the accused has abused his position and acted dishonestly or with a corrupt or oblique motive to constitute "abuse of his position". 13. For the sake of convenience, it would be apt and relevant to quote the provision of section 5(1)(d) of the Act, which runs as under : "(1) A public servant is said to commit the offence of criminal misconduct. (a) .... (b) .... (c)..... (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage." 14. Applying the ratio of the above cited case to the case at hand, it appears in the instant case that there is no whisper in any of the deposition of the witnesses that the appellant acted dishonestly or with a corrupt or oblique motive to purchase the cheque in question. Moreso, Ext. A also reflects that the amount was paid. 15. Moreso, Ext. A also reflects that the amount was paid. 15. Given the entire facts situation in its totality, this court is of the view that necessary essentials for commission of an offence under section 5(1)(d) of the Act as mentioned above are not found in the instant case to rope the appellant in the above mentioned offence. That apart, the incident occurred in the year 1987. Accordingly, this Court is of the view that the impugned judgement and conviction is liable to be set aside. It is ordered accordingly. 16. In the result, this appeal succeeds and stands allowed. Bail bond so furnished stands discharged. 17. Send down the LCR forthwith.