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2019 DIGILAW 2689 (BOM)

Madhukar v. Central Bureau of Investigation

2019-12-09

SWAPNA JOSHI

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JUDGMENT : Swapna Joshi, J. 1. This Appeal has been directed against the judgment and order dated 13th February, 2007 delivered by the learned Judge, Special Court for CBI (ACB) in Special Case No. 11/1992 (renumbered as 6/2003), convicting the appellant/accused for offence punishable under Sections 409 and 477A of the Indian Penal Code and sentencing him to suffer RI for one year and fine of 500/-, in default, to undergo RI for three months, on each of the Sections. The learned Judge further directed that both the sentences shall run concurrently. 2. The prosecution case in brief can be summarized as under:- At the outset, it may be mentioned here that the present case is based on the information received and on that basis FIR (Exh. 78) came to be registered against the appellant (hereinafter referred to as "the accused") who was working as a Upper Division Clerk (in short "UDC") in the office of Director, Central Groundwater Board, Nagpur, during the period from 6.5.1976 to 20.1.1979. It is alleged that the accused while working as a UDC-Cashier in the said office, was entrusted with the work of taking entries in the Cash Book and used to maintain the same. It is further alleged that the accused made double entries in the Cash Books of various TA bills and RCA bills and misappropriated an amount of Rs. 2912.17/- paise. An offence was registered vide Crime No. 65-A/81-Bom, by PW8-Arvind Karve, Police Inspector. After registration of the offence, PW8-Karve visited the place of incident i.e. house of the accused and conducted the search. PW8 found certain loose papers relating to disbursement of payment made by the accused to different persons. It was transpired during the course of investigation that the accused misappropriated an amount of Rs. 2912.70/- paise, by showing double entries in the cash book towards TA bills and RCA bills. PW8-PI Karve seized the cash book and the payment register in which double entries were taken by the accused. PW8 further recorded the statements of the witnesses, prepared a detailed report and submitted it to the Superintendent of Police, CBI (ACB), Mumbai for taking appropriate steps to obtain sanction to prosecute the accused. The sanction was accordingly obtained and thereafter the charge-sheet was filed against the accused in the Special Court. PW8 further recorded the statements of the witnesses, prepared a detailed report and submitted it to the Superintendent of Police, CBI (ACB), Mumbai for taking appropriate steps to obtain sanction to prosecute the accused. The sanction was accordingly obtained and thereafter the charge-sheet was filed against the accused in the Special Court. On the basis of material made available by the prosecution, the learned Judge, Special Court framed the charge. On recording the evidence and hearing both the sides, he convicted the accused, as aforesaid. The prosecution examined in all eight witnesses. 3. With the able assistance of both sides, I have gone through the record and proceedings. Mr. R.D. Hajare, learned Advocate (appointed) for accused vociferously argued that the Court below has not considered the evidence led by the prosecution witnesses in its proper perspective. He argued that no doubt the prosecution succeeded to some extent to prove that the accused has taken double entries in the register, in respect of the payments made to different persons, such as PW1-Prakash Chandrayan, PW 2-Ramaswami Nagrajan, PW3-Bipin Kothari and PW5-Nagorao Choudhary, however, the prosecution has miserably failed to show that there was an intention of the accused to defraud anyone or he has withdrawn the amount which was shown in the second entry for his personal benefit and, thus, has misappropriated the said amount. In these circumstances, it was prayed that the accused be acquitted by setting aside the impugned judgment. 4. As against this, Mrs. Mugdha Chandurkar, learned standing counsel for respondent supported the impugned judgment and canvassed that the prosecution has beyond reasonable doubt proved that the accused has made double entries in respect of the amount paid to various employees, such as, PW1, PW2, PW3 and PW5 towards the TA bills and RCA bills and that itself indicates that the accused has withdrawn that particular amount and has misused the same. She supported the impugned judgment and submitted that the learned trial Judge has properly assessed the evidence led by the prosecution witnesses and has rightly convicted the accused. 5. In order to consider the rival contentions of both sides, it would be advantageous to go through the evidence led by the prosecution witnesses. The evidence of PW1-Prakash Chandrayan, shows that he had submitted TA bill vide Exh. 32 dated 10.8.1978, he however has failed to state as to who has taken those entries. 5. In order to consider the rival contentions of both sides, it would be advantageous to go through the evidence led by the prosecution witnesses. The evidence of PW1-Prakash Chandrayan, shows that he had submitted TA bill vide Exh. 32 dated 10.8.1978, he however has failed to state as to who has taken those entries. According to him, the accused was working as a Cashier at the relevant time. PW1 deposed that on page 154 of the Cash Book entry of his TA bill No. 492 (art. P1) dated 10.8.1978 was taken. The said entry has been exhibited as Exh. 58 through witness PW6-Madhukarrao Ganuwale. PW1 further stated that entry dated 16.8.1978 at page 175 of the Cash Book is in respect of his TA bill No. 492 (art. P2) which was exhibited through PW6 and marked as Exh. 59. PW 1 further categorically stated that he had received payment in respect of art.P1 and art.P2 only once, although the entries were made twice in the Cash Book. 6. The cross-examination of PW1 shows that the Regional Director was sanctioning the TA bills and the amount of TA bill was disbursed by the Cashier as per the direction of PW4-Narendra Gajbhiye, the Drawing and Disbursing Officer (in short "DDO"). 7. The evidence of PW2 indicates that the entry in the cash book was made in respect of his TA bill bearing entry No. 1083 for Rs. 169.20/- paise. He received the said amount on 28.3.1978. The said entry No. 1082, 83 was marked as article P-3 which was proved through PW4 and marked as Exh. 45. According to him, entry No. 1083 dated 3.4.1978 also relates to his TA bill of Rs. 169.20/- paise and it was marked as art. P-4 which was marked as Exh. 47 and proved through PW4. PW2 stated that he received the payment of TA bill entry No. 1083 only once i.e. of Rs. 169.20/- paise. PW2 further deposed that the entries art.P-5 for the amount of Rs. 1248.90/- paise is related to cheque dated 30.09.1978 at entry No. 626 dated 29.9.1978. He stated that although the said entry relates to his name, he did not receive the amount of Rs. 1248.90/- paise. 8. In cross-examination PW2 admitted that the Cashier was reporting to DDO. Normally the bills were received from DDO by Cashier and thereafter the Cashier used to make the payment. He stated that although the said entry relates to his name, he did not receive the amount of Rs. 1248.90/- paise. 8. In cross-examination PW2 admitted that the Cashier was reporting to DDO. Normally the bills were received from DDO by Cashier and thereafter the Cashier used to make the payment. PW2 failed to state as to whether the DDO was checking the cash book every day. 9. The deposition of PW5-Naqgorao Choudhary, is also on the same lines. His evidence shows that the bill of Rs. 434.40/- paise was in his name and he received that amount of bill (Exh. 42) only once. He received the said amount and for that Cashier had obtained his signature in respect of the payment of the said amount made to him. PW5 also stated that the Cashier was paying the said amount as per the direction of DDO. Thus, the evidence of PW 1-Prakash, PW2-Ramaswami and PW5-Nagorao, shows that double entries were made in respect of the amount claimed by them towards the TA bill. However only once the said amount was received by them. All these witnesses stated that it was the DDO who used to issue direction to the Cashier to release those bills and, accordingly, those amounts were received by the concerned persons. 10. The testimony of PW4-Narendra Gajbhiye, who was the DDO at the relevant point of time, demonstrates that the accused was working as a Cashier in his office. The cash book and the payment register were maintained in their office and the bills were prepared in the A/cs. Section. The accused used to write the current cheque book, voucher, receipts, bills, drafts, cheque and the cash were remaining in the custody of the accused. The accused used to obtain the signature of PW4 on cheques and accordingly the disbursement of the amount was made by the accused. PW4 deposed that some in March, 1978 the accused had not written cash book. In April, 1978 since the accused did not maintain the Cash Book, he prepared the note (Exh. 38) and forwarded it to the Director. It was mentioned in the said note that the work of the accused was not proper and, therefore, PW 4 made an endorsement on the said note on 17.8.1978. He also prepared a further note i.e. Exh. 39. 38) and forwarded it to the Director. It was mentioned in the said note that the work of the accused was not proper and, therefore, PW 4 made an endorsement on the said note on 17.8.1978. He also prepared a further note i.e. Exh. 39. According to him, the accused was writing the cash book and the entries at page 46 of cash book at art.P-3 was taken by the accused (Exh. 45). He further deposed about the entry at page 54 at Art.P-4 (Exh. 47). 11. The cross-examination of PW4 shows that there was one Accountant working in their office who used to scrutinize the bills and vouchers. It was the duty of the Accountant to check the entries of the bills taken in the cash register. The entries of daily disbursement of cash were taken in the register (art.P-7). The Divisional Accountant was required to check the said entries. He further deposed that when the cash book was written it was presented daily before him and he used to sign on it after verifying the entries. He further admitted that unless the cash book is written daily it cannot be closed. After the cash was checked daily by the Cashier no one else was entrusted with the work of checking it again. He further admitted that unless the Cashier closes the cash book daily, he cannot leave the office. 12. The aforesaid version of PW4 makes it clear that it was the duty of PW4 to check the entries made in the cash book, prior to sanctioning the bill. It was his duty to check the entries made in the cash register and he was required to verify whether the Cashier closes the cash book daily. PW4 had noticed that in the cash book entries were not properly written and the accounts were not properly maintained and therefore he had taken a note of it. It is not clear, when PW4 was aware about his duty, then why he had not checked the double entries made by the accused and why he has not instructed the accused immediately to take those entries on daily basis and then close the accounts on daily basis. PW4 further admitted that he did not verify the entries of the bills submitted by the accused. He went on to explain that he was not authorized to issue memo to the accused. PW4 further admitted that he did not verify the entries of the bills submitted by the accused. He went on to explain that he was not authorized to issue memo to the accused. He admitted that he did not issue any letter to the accused except the confidential letter, which is not produced before the court. PW4 further admitted that he did not verify from the persons in whose names double payments were shown by the accused. He further stated that the Cashier was taking entry of the amount in the register and he was obtaining signature of the concerned to whom the amount was paid. 13. In this context, it is relevant to note that the register in respect of receipts of payment of the amount was produced by the prosecution but it only shows a single entry in respect of the said payment made to the concerned. There is no evidence on record to show that any amount was withdrawn by the accused in connivance with the concerned persons or he had forged signature of the concerned persons. There is absolutely no evidence on record to show that the accused has withdrawn the said amount for his own benefit while making the double entry in respect of the TA bills. The testimony of PW4 makes it clear that while sanctioning the bills or while disbursing the amount to the concerned, it was necessary for PW4, being a DDO, to verify the contents in the entries and then put his signature on the concerned bills. However, there is no such convincing evidence on record in that regard. It appears that PW4 has failed in his duty as DDO to verify the entries taken by the accused in the Cash Book. 14. The deposition of PW6-Madhukar Ganuwale, demonstrates that entry of amount of Rs. 1628.05/- at page 101 of Cash book was shown to him and he identified the handwriting of the accused. PW6 stated in his cross-examination that the bills used to be received from the Cashier Section and DDO used to sign the bills and forward it to the Section. 15. The evidence of PW7-Achyutrao who was the sanctioning authority, stated that on going through the concerned papers after being satisfied, he has accorded sanction Exh. 75 to prosecute the accused. 16. PW8-Arvind Karve, is the Investigating officer. 15. The evidence of PW7-Achyutrao who was the sanctioning authority, stated that on going through the concerned papers after being satisfied, he has accorded sanction Exh. 75 to prosecute the accused. 16. PW8-Arvind Karve, is the Investigating officer. His evidence shows that he has conducted the search of the house of the accused and found some loose papers relating to disbursing of the payments made by the accused to different persons in his office. According to him, during investigation it was transpired that the accused had misappropriated an amount of Rs. 2912.17/- ps. The accused had shown entry in the cash book twice in respect of one person towards TA and RCA bills. He admitted in his cross-examination that he had not produced the loose papers found during the search of house of the accused. He further admitted that it was transpired that DDO was to sign the respective bills so also the DDO used to sign the vouchers and cash book and the payment register. According to him, the DDO had signed only once on the vouchers. He stated that he did not know as to whether without the permission of DDO no one can take out the voucher or cash book. He admitted that first the challan was to be prepared and then DDO was to verify and sign it and then challan was to be deposited in the Treasury office and then the payment was made. 17. In the instant case, there is no evidence on record to show that first the challan was prepared in respect of the TA bills of the concerned persons, then the DDO-PW4 has verified and signed it and then the challan was deposited in the Treasury office and thereafter the payment was made. Even assuming that the PW1-Prakash, PW2-Ramaswami and PW5-Nagorao had received the amount in respect of their TA bills only once, however, there is absolutely no evidence on record to show that although the double entries were made in respect of the payment made to the concerned persons in respect of the TA bills, however, the amount for the second time was received by the accused by himself or through any other person from the office. 18. 18. In the case of S. Harnam singh vs. The State (Delhi Admn), reported in AIR 1976 SC 2140 , the Hon'ble Apex Court has issued guidelines stating the scope of Section 477A of IPC. It is held that the wilfully as used in Section 477A means "intentionally" or "deliberately". But from the mere fact that certain entries were made "wilfully" by an accused, does not necessary follow that he did so "with intent to defraud" within the meaning of Section 477A, Penal code. The Code does not contain any precise and specific definition of the words "intent to defraud". However, the expression "intent to defraud" contains two elements viz. Deceit and injury. A person is said to deceive another when by practising "suggestio falsi" or "suppressio veri" or both he intentionally induces another to believe a thing to be true, which he knows to be false or does not believe to be true. 'Injury' has been denied in Section 44 of the code as denoting "any harm whatever illegally caused to any person, in body, mind reputation or property". 19. In the instant case, it is not seriously disputed that the entries were made by the accused wilfully. But from the mere fact that these entries were made wilfully does not necessarily follow that the accused did so "with intent to defraud" within the meaning of Section 477A of Penal Code. The prosecution has not established these elements, that is as discussed above by the Hon'ble Apex Court. There is no evidence on record to show that the accused has deceived by practising suggestio falsi or suppressio veri or both or he has intentionally induces another to believe a thing to be true which he knows to be false or does not believe to be true. It is thus not proved that the accused has intentionally or deliberately i.e. wilfully made double entries in the register. Thus, the ingredients of Sec. 477A are not proved by the prosecution beyond reasonable doubt. There is further no evidence on record to show that the amount which was shown in the second entry by the accused was withdrawn by him for his own benefit by defrauding others and he has as such misappropriated the amount by doing so. 20. In the case of Kandipalli Madhavrao vs. State of A.P. reported in 2007 Cri. There is further no evidence on record to show that the amount which was shown in the second entry by the accused was withdrawn by him for his own benefit by defrauding others and he has as such misappropriated the amount by doing so. 20. In the case of Kandipalli Madhavrao vs. State of A.P. reported in 2007 Cri. L.J. 4555, it is held that to convict a person under section 477A of the IPC the prosecution has to prove that there was wilful act which had been made with an intent to defraud and while proving "intention to defraud" the prosecution has to further prove two elements that the act was an act of defraud and it had caused an injury. Thus, the prosecution has failed to prove that offence u/s. 477A of IPC against the accused. 21. Sections 409, 405 and 403 of the IPC read thus:- "409-Criminal breach of trust by public servant, or by banker, merchant or agent-Whoever, being in any manner entrusted with property, or with any dominion ov3er property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 405: Criminal breach of trust-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". 403: Dishonest misappropriation of property-Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 22. In the instant case, the prosecution has failed to prove that the accused has dishonestly misappropriated or converted to his own use the amount in respect of which he has made the double entries. In the instant case, the prosecution has failed to prove that the accused has dishonestly misappropriated or converted to his own use the amount in respect of which he has made the double entries. In the facts and circumstances of the case, to my mind, the learned Judge, Special Court has not assessed the evidence led by the prosecution witnesses in it proper perspective and as such, an interference at the hands of this Court in the impugned judgment, is warranted. Hence, the order. ORDER: (i) Criminal Appeal No. 86/2007 is allowed. (ii) The judgment and order passed by learned Judge, special Court, Nagpur in Special Case No. 11/1992 (renumbered as 6/2003) on 13th February,2007 convicting the appellant/accused, is set aside and he is acquitted of the offences for which he was convicted. (iii) The bail bonds of the appellant shall stand cancelled. (iv) Fine amount if paid by the appellant/accused, be returned to him. (v) The professional fees of Mr. R.D. Hajare, Advocate (appointed) for the appellant, be paid as per Rules.