RAM LAL versus STATE OF HIMACHAL PRADESH on 3 October 2018

RAM LAL

v.

STATE OF HIMACHAL PRADESH

(Criminal Appeal No. 576 of 2010)

OCTOBER 03, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Evidence – Extra-judicial confession – Evidentiary value of– Appellant-peon with the Bank was assigned the job of Cash Clerk– His job was to receive money from the account holders fordepositing in their Saving Bank accounts – However, he used tomake entries in their pass books but, would not account money inthe account books of the bank nor did he pass it to the cashier andthus, caused wrongful loss to the bank to the tune of Rs.38,500/- –Appellant convicted by Trial Court as also by the High Court –Plea of appellant that he did not voluntarily make any confessionstatement and the same could not have been made the basis forconviction – Held: Extra-judicial confession is a weak piece ofevidence and the Court must ensure that the same inspires confidenceand is corroborated by other prosecution evidence – If the Court issatisfied that the confession is voluntary, conviction can be basedupon the same – Mere allegation of threat or inducement is notenough – In the present case, the trial court as well as the HighCourt concurrently held that the confession statements werevoluntarily made and that the same can form the basis for conviction– No ground warranting interference with the said concurrentfindings – Conviction of the appellant u/s.13(1)(c) r/w s.13(2),1988 Act and sentence of imprisonment of two years is confirmed –Conviction u/ss.477-A and 409, IPC is also confirmed – However,since the occurrence was of the year 1992-94, considering thepassage of time and the facts and circumstances of the case, thesentence of imprisonment imposed on the appellant u/s.409, IPC isreduced from five to three years – Prevention of Corruption Act,1988 – ss.13(1)(c) read with Section 13(2) – Penal Code, 1860 –ss.409 and 477-A.

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APartly allowing the appeals, the Court

HELD: 1.1 Extra-judicial confession is a weak piece ofevidence and the court must ensure that the same inspiresconfidence and is corroborated by other prosecution evidence.In order to accept extra-judicial confession, it must be voluntaryBand must inspire confidence. If the Court is satisfied that theextra-judicial confession is voluntary, it can be acted upon to basethe conviction. It is well settled that conviction can be based ona voluntarily confession but the rule of prudence requires thatwherever possible it should be corroborated by independentevidence. Extra-judicial confession of accused need not in all casesCbe corroborated. The rule of prudence does not require that eachand every circumstance mentioned in the confession must beseparately and independently corroborated. [Paras 13, 14][864-B-C; 865-E-F]

1.2 If the court is satisfied that the confession is voluntary,Dthe conviction can be based upon the same. Rule of Prudencedoes not require that each and every circumstance mentioned inthe confession with regard to the participation of the accusedmust be separately and independently corroborated. In the caseat hand, as pointed out by the trial court as well as by the HighECourt, PW-2 and PW-3 were the senior officers of the bank andwhen they reached the bank for inspection, the accused submittedhis confessional statement (Ex.-PW-2/A). Likewise, in the enquiryconducted by PW-3, the accused had given confession statement(Ex.-PW-3/A). Mere allegation of threat or inducement is notenough; in the court’s opinion, such inducement must beFsufficient to cause a reasonable belief in the mind of the accusedthat by so confessing, he would get an advantage. As pointed outby the trial court and the High Court, though the confessionstatement has been initially made in the presence of PW-3 andone ‘MPS’ by the appellant, no question was put to PW-3 thatGextra-judicial confession (Ex.-PW3/A) was an outcome of anythreat, inducement or allurement. The statement which runs toeleven sheets has been held to be made by the appellantvoluntarily. Likewise, confession statement (Ex.-PW-2/A) madebefore PW-2 was in the handwriting of the appellant made in thepresence of PW-2 and the then Assistant Chief OfficerH

(Inspection). Here again, it was not suggested to PW-2 thatEx.-PW-2/A was outcome of some threat or pressure. The trialcourt as well as the High Court concurrently held that theconfession statements (Ex.-PW-3/A and PW-2/A) were voluntarilymade and that the same can form the basis for conviction. Thereis no good ground warranting interference with the saidconcurrent findings. [Paras 15, 16] [865-G, H; 866-A-E]

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1.3 The conviction of the appellant under Section 13(1)(c)read with Section 13(2) of the Prevention of Corruption Act, 1988and sentence of imprisonment of two years is confirmed. Theconviction under Sections 477-A IPC and 409 IPC is confirmed.The occurrence was of the year 1992-94. Considering the passageof time and the facts and circumstance of the case, the sentenceof imprisonment imposed on the appellant under Section 409 IPCis reduced to three years. [Paras 17, 18] [866-F-G]

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Sahadevan and Another v. State of Tamil Nadu(2012) 6 SCC 403 : [2012] 4 SCR 366 – relied on.

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Ajay Singh v. State of Maharashtra(2007) 12 SCC341 : [2007] 7 SCR 983 ;Madan Gopal Kakkad v.Naval Dubey and Another(1992) 3 SCC 204 :[1992] 2 SCR 921 ;Piara Singh and Others v. State ofPunjab (1977) 4 SCC 452 : [1978] 1 SCR 597 –referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 576 of 2010.

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From the Judgment and Order dated 22.12.2008 of the High Courtof Himachal Pradesh at Shimla in Criminal Appeal No. 710 of 2000

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Criminal Appeal Nos.577 and 578 of 2010.

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AS. Hari Haran, Vikash Singh, Ejaz Maqbool, Amit Singh Chauhan,Advs. for the Appellant.

Abhinav Mukerji, AAG, Ms. Bihu Sharma, Ms. Purnima Krishna,Advs. for the Respondent.

The Judgment of the Court was delivered byB

R. BANUMATHI, J. 1.These appeals arise out of the judgmentdated 22.12.2008 passed by the High Court of Himachal Pradesh atShimla in Criminal Appeal Nos. 710-712 of 2000 in and by which theHigh Court affirmed the judgment passed by the trial court therebyaffirming the conviction of the appellant under Section 13(1)(C) readCwith Section 13(2) of Prevention of Corruption Act, 1988 and underSections 409 and 477-A IPC and the sentence of imprisonment imposedupon him.

2. Briefly stated case of the prosecution is that accused wasemployed as a Peon in the United Commercial Bank in January 1987.DHe was assigned the job of the Clerk as there was a shortage of clericalstaff in the bank and his job was of manning Saving Bank accountscounter. His job was to receive money from the account holders fordeposit in Saving Bank accounts. He used to make entries in their passbooks in his own hand but would not account money in the accountEbooks of the bank nor did he pass it to the cashier. It is alleged thatneither the appellant filled the pay-in-slips nor was any deposit made inthe scroll, daily case receipt book and the cash payment book maintainedby the cashier and he used to pocket that money. When the depositorsapproached him for withdrawals of money, he would make fake creditentries in the ledger accounts and fill in the withdrawal slips and submitFthe same to the officer concerned for payment. The Passing Officermisled by the fake credit entry would allow the withdrawals. This way,the appellant caused wrongful loss to the bank to the tune ofRs.38,500/- during the year 1994. When the fraud came to light, aCommittee of two officers namely, R.C. Chhabra (PW-3) and M.P. SethiGwas deputed to hold a preliminary enquiry and the Committee noticedbungling of accounts by the appellant. After that, Enquiry Committeerecommended thorough investigation in the matter. After the preliminaryenquiry, FIR was registered against the appellant under Sections 409,468, 471, 477-A IPC and under Section 13(1)(C) read with Section 13(2)of the Prevention of Corruption Act, 1988 (PC Act, 1988). AfterHinvestigation, the appellant was charge sheeted for the said offences.

3. To prove the guilt of the accused, prosecution has examinedthirteen witnesses and produced documentary evidence. Uponconsideration of the oral and documentary evidence, the trial court heldthat the appellant in his capacity as a public servant, had misappropriatedthe money entrusted to him, in discharge of his duty, as a public servant.The trial court convicted him for the offences under Section 13(1)(c)read with Section 13(2) of the PC Act, 1988 and Section 477-A IPC forfalsification of accounts with intent to defraud the Bank and he wassentenced to undergo rigorous imprisonment for a period of two yearsalong with a fine of Rs.5,000/-. For the offence under Section 409 IPC,the appellant was sentenced to undergo rigorous imprisonment for aperiod of five years with a fine of Rs.5,000/- and all the sentences weredirected to run concurrently. The appellant was, however, acquitted forthe offences under Sections 468 and 471 IPC for the charge of forgeryby holding that the opinion expert is not precise. Being aggrieved by theconviction, the appellant preferred the appeal before the High Courtwhich was dismissed by the impugned judgment.

4. Learned counsel for the appellant contended that the appellantwas working as Peon in the bank and as per bank rules, no clerical jobcan be assigned to Peon/sub-staff which was admitted by the officersof the bank viz. Prem Chand (PW-1), R.K. Soni (PW-2), R.C. Chhabra(PW-3) and A.K. Gupta (PW-10). It was contended that when anyparticular job is assigned to an employee different from his duty, then theManager is supposed to issue office order/duty sheet whereas in thepresent case, no office order/duty sheet was placed on record to establishthat the appellant was assigned the clerical job as alleged. The appellantmainly assails the confessional statement contending that he did notvoluntarily make any confession statement and the confessional statementcould not have been made the basis for conviction.

5. Learned counsel for the State contended that the appellantacted with dishonest intention to defraud the Bank by making false creditand debit entries in the accounts of various account holders therebyfalsifying the account books of the Bank and the courts below rightlyconvicted the appellant for defrauding the Bank and the impugnedjudgment warrants no interference.

6. We have carefully considered the rival contentions and perusedthe impugned judgment and evidence and materials placed on record.

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A7. In his evidence, A.K. Gupta (PW-10), the then Manager ofUCO Bank, Nerwa Branch had stated that the appellant who was aPeon in the branch was performing the duties of Cash Clerk for shortageof staff. He further stated that while the appellant was so working asCash Clerk, the appellant used to receive cash from the depositors fordepositing the same in their Saving Bank accounts and used to make theBentries in the Cash Book then and there and return the pass book to thecustomers by pocketing the cash so given to him without making anycredit entry in the ledger. A.K. Gupta (PW-10) further stated thatgenerally the pay-in-slip is filled in by the depositor himself; but in orderto pocket the money, appellant-Ram Lal filled up the pay-in-slip. PW-10Cfurther stated that subsequently, when the depositors used to visit theBank for withdrawal of the cash from their Saving Bank accounts,appellant-Ram Lal used to make false credit entries in the ledger booksand after making the debit entries in their accounts, he used to hand overthe cash to the customers.

D8. The duty of the Peon was, of course, only to clean up the officeand other work in the office like moving files etc. There was, of course,no office order in writing authorising the appellant to perform the dutiesof Clerical Cadre. But in his evidence, A.K. Gupta (PW-10) has statedthat though there was no office order authorising the appellant to performthe work of Clerical Cadre, he informed the Head Office regarding theEappellant for performing the duties of Cash Clerk for want of shortageof the staff. In this regard, in his evidence, R.C. Chhabra (PW-3), thethen Deputy Chief Officer of UCO Bank has stated that the Peon likeappellant was not authorised to do the work of Clerical Cadre. PW-3has also stated that A.K. Gupta (PW-10) and other officials of NerwaFBranch namely S.S. Rana, B.S. Guleria were negligent in their duties byso assigning the clerical work to the appellant. PW-3 was howeverquick enough to add that it cannot be said that those officers (A.K.Gupta (PW-10), S.S. Rana (PW-11) and B.S. Guleria) were responsiblefor the act of committing fraud. There is no merit in the contention of theappellant that in the absence of office order authorising him to performGthe clerical work, he cannot be held responsible.

9. R.C. Chhabra (PW-3) was the then Deputy Chief Officer ofUCO Bank, Divisional Office, Shimla who inspected UCO Bank, NerwaBranch during the relevant time. R.K. Soni (PW-2) was the Grade-I

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Officer at Zonal Office, Shimla who also inspected UCO Bank, NerwaBranch in the year 1994. R.C. Chhabra (PW-3) stated that the appellantwrote confession statement in his own hand, in the presence of M.P.Sethi and signed the same which formed part of his report Ex.-PW-3/A.Eleven sheets are the tabulated statements in respect of the Saving Bankaccounts, in which fake credit entries had been detected. At the foot ofthese statements, the appellant wrote in his own hand and under hissignature, that he had received the money from the account holders,named in the statements, for being deposited in their accounts, but insteadof accounting for the same in the respective account books of the bank,the appellant misappropriated it and later on made fake credit entriesand forged the initials of the Manager.

10. After the preliminary enquiry was conducted, the DivisionalOffice nominated two senior officers namely, R.K. Soni (PW-2) andH.O. Aggarwal, who submitted the report consisting of 202 pages, whichhas been made part of the investigation report, Ex.-PW-2/A. R.K. Soni(PW-2) deposed in his evidence that the writings at pages (143) and(144) of report Ex.-PW-2/A, was prepared by the appellant-accusedvoluntarily in his own handwriting, in his presence and in the presence ofhis co-investigator H.O. Aggarwal and the appellant-accused admittedhaving received money from various account holders, for being depositedin their Saving Bank accounts and having made entries in their passbooks. In his confession statement, the appellant also admitted that hedid not account for the money, but misappropriated the same and thatwhen the account holder visited the bank for the withdrawal of the money,he used to make fake credit entries in the ledger folio of their accountsand on the basis of those fake entries, withdrawals used to be made.

11. Contention of the appellant is that the confession statement ofthe appellant was not voluntary and PWs 2 and 3 were persons in authoritywho have pressurised the appellant to make the confession and therefore,Ex.-PW-3/A and Ex.-PW-2/A cannot be said to have been madevoluntarily and cannot form the basis for conviction.

12. Placing reliance upon Ajay Singh v. State of Maharashtra(2007) 12 SCC 341, it was contended that extra-judicial confession canonly form basis of conviction if it is voluntary and person to whomconfession is made should be unbiased and not inimical to the accused.Learned counsel also placed reliance upon Madan Gopal Kakkad v.

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ANaval Dubey and another (1992) 3 SCC 204 to contend that extra-judicial confession of accused should not have been obtained by coercion,promise of favour and should be voluntary in nature acknowledging theguilt. Learned counsel submitted that the officers who obtained extra-judicial confession of the appellant (Exts.-PW-3/A and PW-2/A) hadother vested interest to act upon and the appellant being a Peon mustBhave been allured by the false hope of being absolved from the charges.

13. Extra-judicial confession is a weak piece of evidence and thecourt must ensure that the same inspires confidence and is corroboratedby other prosecution evidence. In order to accept extra-judicial confession,it must be voluntary and must inspire confidence. If the court is satisfiedCthat the extra-judicial confession is voluntary, it can be acted upon tobase the conviction. Considering the admissibility and evidentiary valueof extra-judicial confession, after referring to various judgments, inSahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403,this court held as under:- D“15.1. In Balwinder Singh v. State of Punjab 1995 Supp (4)SCC 259 this Court stated the principle that:

“10. An extra-judicial confession by its very nature is rather aweak type of evidence and requires appreciation with a greatdeal of care and caution. Where an extra-judicial confession issurrounded by suspicious circumstances, its credibility becomesdoubtful and it loses its importance.”

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15.4. While explaining the dimensions of the principles governingthe admissibility and evidentiary value of an extra-judicialconfession, this Court in State of Rajasthan v. Raja Ram (2003)F8 SCC 180 stated the principle that:

“19. An extra-judicial confession, if voluntary and true andmade in a fit state of mind, can be relied upon by the court.The confession will have to be proved like any other fact. Thevalue of the evidence as to confession, like any other evidence,Gdepends upon the veracity of the witness to whom it has beenmade.”

The Court further expressed the view that:

“19. … Such a confession can be relied upon and convictioncan be founded thereon if the evidence about the confession H

comes from the mouth of witnesses who appear to be unbiased,not even remotely inimical to the accused, and in respect ofwhom nothing is brought out which may tend to indicate thathe may have a motive of attributing an untruthful statement tothe accused.…”

15.6. Accepting the admissibility of the extra-judicial confession,the Court in Sansar Chand v. State of Rajasthan (2010) 10SCC 604 held that:

“29. There is no absolute rule that an extra-judicial confessioncan never be the basis of a conviction, although ordinarily anextra-judicial confession should be corroborated by some othermaterial. [Vide Thimma and Thimma Raju v. State of Mysore(1970) 2 SCC 105, Mulk Raj v. State of U.P. AIR 1959 SC902, Sivakumar v. State By Inspector of Police (2006) 1 SCC714 (SCC paras 40 and 41 : AIR paras 41 and 42), ShivaKaram Payaswami Tewari v. State of Maharashtra (2009)11 SCC 262 and Mohd. Azad alias Shamin v. State of W.B.(2008) 15 SCC 449]”

14. It is well settled that conviction can be based on a voluntarilyconfession but the rule of prudence requires that wherever possible itshould be corroborated by independent evidence. Extra-judicialconfession of accused need not in all cases be corroborated. In MadanGopal Kakkad v. Naval Dubey and Another (1992) 3 SCC 204, thiscourt after referring to Piara Singh and Others v. State of Punjab(1977) 4 SCC 452 held that the law does not require that the evidence ofan extra-judicial confession should in all cases be corroborated. The ruleof prudence does not require that each and every circumstance mentionedin the confession must be separately and independently corroborated.

15. As discussed above, if the court is satisfied that if the confessionis voluntary, the conviction can be based upon the same. Rule of Prudencedoes not require that each and every circumstance mentioned in theconfession with regard to the participation of the accused must beseparately and independently corroborated. In the case at hand, as pointedout by the trial court as well as by the High Court, R.K. Soni (PW-2) andR.C. Chhabra (PW-3) were the senior officers of the bank and whenthey reached the bank for inspection on 23.04.1994, the accused submittedhis confessional statement (Ex.-PW-2/A). Likewise, in the enquiry A

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Aconducted by R.C. Chhabra (PW-3), the accused had given confessionstatement (Ex.-PW-3/A).

16. Contention of the appellant is that PWs 2 and 3 being thehigher officials, it cannot be said that the confession statement of theaccused has been made voluntarily and it must have been under theBinducement or under false promise of favour. Mere allegation of threator inducement is not enough; in the court’s opinion, such inducementmust be sufficient to cause a reasonable belief in the mind of the accusedthat by so confessing, he would get an advantage. As pointed out by thetrial court and the High Court, though the confession statement has beeninitially made in the presence of R.C. Chhabra (PW-3) and M.P. SethiCby the appellant, no question was put to R.C. Chhabra (PW-3) that extra-judicial confession (Ex.-PW3/A) was an outcome of any threat,inducement or allurement. The statement which runs to eleven sheetshas been held to be made by the appellant voluntarily. Likewise,confession statement (Ex.-PW-2/A) made before R.K. Soni (PW-2)

Dwas in the handwriting of the appellant made in the presence of R.K.Soni (PW-2) and H.O. Agrawal, the then Assistant Chief Officer(Inspection). Here again, it was not suggested to R.K. Soni (PW-2) thatEx.-PW-2/A was outcome of some threat or pressure. The trial courtas well as the High Court concurrently held that the confession statements(Ex.-PW-3/A and PW-2/A) were voluntarily made and that the sameEcan form the basis for conviction. We do not find any good groundwarranting interference with the said concurrent findings.

17. In so far as the conviction under Section 13(1)(c) read withSection 13(2) of PC Act, 1988, the appellant was sentenced to undergorigorous imprisonment for two years. For conviction under SectionF477-A IPC, the appellant was sentenced to undergo rigorous imprisonmentfor two years. For conviction under Section 409 IPC, the appellant wassentenced to undergo rigorous imprisonment for five years. Theoccurrence was of the year 1992-94. Considering the passage of timeand the facts and circumstance of the case, the sentence of imprisonmentGimposed on the appellant is reduced to three years.

18. In the result, the conviction of the appellant under Section13(1)(c) read with Section 13(2) of the Prevention of Corruption Act,1988 and sentence of imprisonment of two years is confirmed. Theconviction under Sections 477-A IPC and 409 IPC is confirmed and the H

sentence of imprisonment under Section 409 IPC is reduced to threeyears. These appeals are accordingly partly allowed. The appellantshall surrender himself within four weeks from today to serve theremaining sentence, failing which the appellant shall be taken into custody.

Divya Pandey

Appeals partly allowed.

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