JUDGMENT : M G Uma, J. The appellant - accused No.1 in Spl.C.C.No.103/2001, on the file of the learned XLVI Additional City Civil Judge and Sessions Judge and Special Judge for CBI case, Bangalore, is impugning the Judgment of Conviction and Order of Sentence dated 30.08.2012, convicting accused No.1 for the offences punishable under Sections 120B, 420 r/w Section 120B, 468 r/w Section 120B, 471 r/w Section 120B of Indian Penal Code (for short 'IPC') and under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'PC Act') and sentenced him to undergo simple imprisonment for a period of one year with fine of Rs.2,000/- for the offence punishable under Section 120B of IPC; to undergo simple imprisonment for a period of one year with fine of Rs.2,000/- for the offence punishable under Section 420 r/w Section 120B of IPC; to undergo simple imprisonment for a period of one year with fine of Rs.2,000/- for the offence punishable under Section 468 r/w Section 120B of IPC; to undergo simple imprisonment for a period of six months for the offence punishable under Section 471 r/w Section 120B of IPC; to undergo simple imprisonment for a period of two years with fine of Rs.5,000/- for the offence punishable under Section 13(2) read with Section 13(1)(d) of PC Act, with default sentences. 2. Brief facts of the case as per the prosecution are that, the appellant was working as Senior Branch Manager in Syndicate Bank, Indiranagar branch, Bangalore for a period from 20.12.1990 to 25.01.1993. He conspired with accused Nos.2 to 4 to cheat Syndicate Bank, Indiranagar branch and Sriramapura Co-operative Bank Ltd, Sriramapura, by dishonestly and fraudulently accepting and endorsing cheque bearing No.24055 dated 11.01.1993 as 'good for payment' as presented by M/s. Nagaraj Leather Pvt. Ltd., and permitted withdrawal of an amount of Rs.32,78,626.50/- by discounting it before its clearance. 3. It is also the contention of the prosecution that accused No.1 accepted the cheque bearing No.434818 for Rs.40 lakhs issued by the Municipal Administration, Bangalore meant for opening an FDR in the account of Srirampuram Co- operative Bank Ltd., and dishonestly appropriated the said amount to the cheque that was presented by M/s. Nagaraj Leather Pvt. Ltd., and thereby, defrauded the Syndicate Bank, Municipal Administration, Bangalore, and also Srirampuram Co- operative Bank Ltd by using the forged documents as genuine documents. Hence, he has committed the offence of misconduct as stated above. 4. A Source Report was prepared by the Inspector of Police, CBI to contend that, the appellant in conspiracy with accused Nos. 2 to 4 had committed the offence. FIR came to be registered on the basis of the source report and investigation was undertaken. Later, final report came to be filed against accused Nos. 1 to 4. 5. The Trial Court took cognizance of the above said offences and summoned the accused. Accused has appeared before the Trial Court. He pleaded not guilty and claimed to be tried. The prosecution has examined PWs.1 to 22, got marked Ex.P1 to P59. The accused has denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.PC, but has not led any evidence in support of his defence. However, Exs.D1 and D2 got marked during cross examination of prosecution witnesses. 6. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused No.1 beyond reasonable doubt. Accordingly, passed the impugned judgment and order convicting and sentencing the accused for the offences punishable under Sections 120B, 420 r/w Section 120B, 468 r/w Section 120B, 471 r/w Section 120B of IPC and under Section 13(2) r/w Section 13(1)(d) of PC Act. Being aggrieved by the same, the accused is before this Court. 7. Heard Sri. Ganesh Kumar.R, learned counsel for the appellant and Sri.P Prasanna Kumar, learned counsel for the respondent. Perused the materials including the Trial Court records. 8. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: “Whether the appellant-accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?” My answer to the above point is in the 'Affirmative' for the following: REASONS 9. It is the contention of the prosecution that the appellant being the Senior Branch Manager in Syndicate Bank, Indiranagar branch permitted M/s. Nagaraj Leather Pvt. Ltd., to open an account in the branch and to present the cheque bearing No.24055 dated 11.01.1993 issued in his favour, drawn on Srirampura Co-operative Bank Ltd., for Rs.40 lakhs. It is the contention of the prosecution that the appellant being the Senior Branch Manager in Syndicate Bank, Indiranagar branch permitted M/s. Nagaraj Leather Pvt. Ltd., to open an account in the branch and to present the cheque bearing No.24055 dated 11.01.1993 issued in his favour, drawn on Srirampura Co-operative Bank Ltd., for Rs.40 lakhs. Instead of sending the cheque for clearance, he discounted it and permitted one S. Nagaraj, the owner of M/s. Nagaraj Leather Pvt. Ltd., to withdraw an amount of Rs.32,78,626.50/- on the same day and thereby, committed fraud and cheating. 10. It is also the contention of the prosecution that on the very next day i.e., on 12.01.1993, Srirampura Co-operative Bank Ltd., referred to above which had endorsed 'good for payment' on the cheque bearing No.24055 issued in favour of M/s. Nagaraj Leather Pvt. Ltd., opened an account with the Syndicate Bank, Indiranagar branch of which accused No.1 was the Senior Manager and presented the cheque bearing No.434818 for Rs.40 lakhs which was issued by the Municipal Administration, Bangalore in its favour for opening an FDI. The said amount was appropriated by the appellant towards the amount which was credited to the account M/s. Nagaraj Leather Pvt. Ltd., and thereby, misappropriated the amount and committed misconduct. 11. It is pertinent to note that neither the Syndicate Bank, Indiranagar branch, nor the Municipal Administration, Bangalore nor Srirampura Co-operative Bank Ltd., filed any complaint against the appellant. But on the other hand, the Inspector of Police, CBI prepared the source report and on the basis of the same, FIR was registered. The said Officer is not examined before the Trial Court. There is no explanation as to why none of the entities i.e., Syndicate Bank, Municipal Administration, Bangalore or Srirampura Co-operative Bank Ltd., have not chosen to file the complaint, if at all they have sustained any loss or any fraud or cheating was committed. 12. The facts of the case made out by the prosecution and as spoken to by the prosecution witnesses disclose that, on 11.01.1993 one S. Nagaraj introduced himself as the owner of M/s.Nagaraj Leather Pvt. Ltd., for opening a current account in Syndicate Bank, Indiranagar branch. He presented the original of Ex.P1 - a cheque drawn for Rs.40 lakhs by S. Nagaraj on Srirampura Co-operative Bank Ltd., The said cheque was having an endorsement as 'good for payment'. He presented the original of Ex.P1 - a cheque drawn for Rs.40 lakhs by S. Nagaraj on Srirampura Co-operative Bank Ltd., The said cheque was having an endorsement as 'good for payment'. It is the contention of the learned counsel for the appellant that, once the cheque is endorsed as good for payment, it is as good as a demand draft and hence, there was no reason for accused No.1 to suspect about its genuinity or sending it for clearance. Prima facie, upon being satisfied with the genuinity of account holder, the amount was credited to the account and permitted Mr.S.Nagaraj - the owner of M/s. Nagaraj Leather Pvt. Ltd., to withdraw an amount of Rs.32,78,626.50/-. 13. The materials on record also disclose that on the very next day i.e., on 12.01.1993, Srirampura Co-operative Bank Ltd., presented a cheque for Rs.40 lakhs for collection. In the meantime, accused No.1 received the intimation that the original cheque Ex.P1 was not honored and immediately, he appropriated the amount of Rs.32,78,626.50/- cheque bearing No.24055 presented by Srirampura Co-operative Bank Ltd., to appropriate the amount which was withdrawn by S.Nagaraj, owner of M/s. Nagaraj Leather Pvt. Ltd., These facts are not in dispute as the witnesses have spoken to about the same and supported by the documents. If these facts are taken into consideration, I do not find any justification for CBI to prepare source report, making allegations against accused No.1. 14. PW17 - the bank official deposes that accused No.1 was having a limit of only Rs.10,000/- and in permitting Mr.S.Nagaraj to withdraw an amount of Rs.32,78,626.50/- by accepting the cheque for Rs.40 lakhs, he exceeded his limits. It is pertinent to note that during cross examination of this witness, learned counsel for the appellant tendered Ex.D2 - a Power of Attorney deed executed in favour of accused No.1 by Syndicate Bank. Learned counsel for the appellant has drawn the attention of the Court to paragraph No.4 of this Power of Attorney deed which was admitted by PW17, according to which, no restriction is imposed on the authority of accused No.1. It only says, he is authorized to deal with securities. When as per the admitted document-Ex.D2 authorizes accused No.1 to deal on behalf of the bank without any restrictions on the authority of accused No.1, I do not find any justification or support for the evidence of PW17. It only says, he is authorized to deal with securities. When as per the admitted document-Ex.D2 authorizes accused No.1 to deal on behalf of the bank without any restrictions on the authority of accused No.1, I do not find any justification or support for the evidence of PW17. Moreover, accused No.1 was working as a Senior Manager in Syndicate Bank, Indiranagar branch. Under such circumstances, the contention of the prosecution that he was having limit of only Rs.10,000/- to act on his discretion cannot be accepted even for a moment, that too without any supporting document. The contention of the learned counsel for the respondent that as per RBI guidelines, there was restrictions on the authority of the Senior Manger of the nationalized banks also cannot be accepted as no such guidelines or circulars have been produced before the Court to substantiate such contention. 15. Admittedly, neither the Syndicate Bank, nor the Municipal Administration, Bangalore or Srirampura Co-operative Bank Ltd., have sustained any loss. There is no quantification of loss from any of these entities. When it is not the contention of the prosecution that, any of these entities have sustained loss by the act of accused No.1, I do not find any support for its contention that the appellant by making use of the forged documents had committed cheating and misconduct. 16. From the materials on record, I am satisfied that it is a futile attempt on the part of the CBI to prepare source report and to prosecute the present appellant by examining PWs1 to 22 and getting marked Exs.P1 to P59 in support of its contention. Unfortunately, no case is made out against accused No.1. It is to be noticed that accused Nos.2 and 4 have died during pendency of the matter before the Trial Court. They have not faced trial as case against them was abated. Accused No.3 even though faced trial and alleged to have conspired with accused No.1 is already acquitted by the Trial Court by giving him a clean chit. Under such circumstances, I do not find any support to contend that the appellant has committed the offence punishable under Sections 120B, 420 r/w Section 120B, 468 r/w Section 120B, 471 r/w Section 120B of IPC and under Section 13(2) r/w Section 13(1)(d) of PC Act. Therefore, I am of the opinion that the appellant is entitled for acquittal. 17. Under such circumstances, I do not find any support to contend that the appellant has committed the offence punishable under Sections 120B, 420 r/w Section 120B, 468 r/w Section 120B, 471 r/w Section 120B of IPC and under Section 13(2) r/w Section 13(1)(d) of PC Act. Therefore, I am of the opinion that the appellant is entitled for acquittal. 17. I have gone through the impugned judgment passed by the Trial Court. The Trial Court has taken into consideration the voluminous oral and documentary evidence placed before it to form an opinion that the prosecution is successful in proving the guilt of accused No.1 alone of the conspiracy, cheating etc., and committed the misconduct. I do not find any justification for the same. Hence, the impugned judgment of conviction and order of sentence is liable to be set aside. 18. Accordingly, I proceed to pass the following: ORDER (i) The Criminal Appeal is allowed. (ii) The Judgment of Conviction and Order of Sentence dated 30.08.2012 passed in Spl.C.C.No.103/2001, on the file of the learned XLVI Additional City Civil Judge and Sessions Judge and Special Judge for CBI case, Bangalore is hereby set aside. (iii) Consequently, accused No.1 is acquitted for the offences punishable under Sections 120B, 420 r/w Section 120B, 468 r/w Section 120B, 471 r/w Section 120B of IPC and under Section 13(2) r/w Section 13(1)(d) of PC Act. (iv) Bail bond and that of surety, if any, shall stand cancelled. (v) Fine amount, if any, deposited by accused No.1 is ordered to be refunded to him on due identification after appeal period is over. Registry to send back the TCR along with copy of this judgment for information and needful action.