RAM GOPAL versus CENTRAL BUREAU OF INVESTIGATION, DEHRADUN on 22 July 2019

RAM GOPAL

v.

CENTRAL BUREAU OF INVESTIGATION, DEHRADUN

(Criminal Appeal No. 1085 of 2019 etc.)

JULY 22, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Penal Code, 1860:

ss.120-B, 420, 467, 468, 471, 477-A and 201 r/w ss. 13(1)(d)and 13(2) of Prevention of Corruption Act, 1988 – Conviction under– Of bank employees – For opening fictitious account, depositingcertain amount therein and withdrawal therefrom by seventeencheques – Propriety of – Held: It is proved that fraud was committedin a systematic manner by persons well acquainted with bankingprocedures – No defence evidence that the appellants (bankemployees) had no access to records of the Bank – Evidence oftheir involvement is clinching – Conviction upheld.

Dismissing the appeals, the Court

HELD : 1. It is an undisputed fact that a fictitious accountwas opened without proper verification in accordance with thebanking procedures.But that does not appear to have been thesubject of investigation and which could have revealed more factswith regard to the nature and manner of the embezzlement thathas taken place, including the persons involved in the same. Thetrial court has rightly observed that in accordance with bankingprocedures, the opening of the account, the deposits in the sameand withdrawals could not have been the handiwork of theappellants alone. But merely because the investigation may nothave been of the standard and nature that it ought to have been,cannot enure to the benefit of the appellants in view of the natureof materials and evidence available against them. [Para 6][665-G-H; 666-A-B]

2. The validity of the sanction against the appellants forprosecution, who were undisputedly employed as messenger andassistant clerk respectively in the same branch, has been proved

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Aby PW-1 and PW-2. The evidence is sufficient to establishconspiracy. [Para 7] [666-C, E]

3. The fraud was committed in a systematic manner bypersons well acquainted with banking procedures. The appellantswere also the employees of the Bank. There is no defenceBevidence that they had no access to records of the Bank at anystage to commit the offence attributed to them. On the contrary,the evidence of their involvement is clinching. They also hadaccess to the vouchers and ledgers as part of their normal duties.Even the specimen signature card was made to disappearreplaced by a torn paper. Therefore there is no reason to interfereCwith the conviction of the appellants. [Paras 8 and 9] [666-G-H;667-A]

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1085 of 2019.

DFrom the Judgment and Order dated 05.09.2017 of the High Courtof Judicature at Allahabad in Criminal Appeal No. 1226 of 2013.

With

Criminal Appeal No. 1086 of 2019.

S. S. Kulshestha, Sr. Adv., Ajeet Pandey, Danish Zubair Khan,ERameshwar Prasad Goyal, Advs. for the Appellant.

Mukul Singh, Rajat Nair, Arvind Kumar Sharma, Mukesh KumarMaroria, Advs. for the Respondent.

The Judgment of the Court was delivered by FNAVIN SINHA, J. 1. Leave granted.

2. The appellants assail their conviction under Sections 120-B,420, 467, 468, 471, 477-A, 201, I.P.C. read with Sections 13(1)(d) and13(2), Prevention of Corruption Act.

3. The Central Bureau of Investigation registered an F.I.R. on12.04.1994 based on the statement of the Assistant General Manager,State Bank of India, Ghaziabad with regard to the opening of a fictitiousBank account on 13.07.1992 in the name of one Raj Kumar. Soonthereafter by separate forged credit entries between the period 23.07.1992to 31.10.1992, deposit of Rs.3,22,056.00 was made in the account.

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Subsequently on different dates a sum of Rs.3,22,000.00 was withdrawnby seventeen cheques leaving a balance of Rs.322.85. Originally twoclerks of the Bank, Dinesh Kumar Sharma and Smt. Vandana Kundrawere named as accused along with other unknown persons. The namesof the appellants transpired during investigation leading to the submissionof charge sheet against them only, and after conclusion of the trial theywere convicted.

4. Learned counsel for the appellants contended that they havebeen made scapegoats while the original named accused have beenwrongly exonerated during investigation. The sanction for theirprosecution was not in accordance with law. There is no evidence thatthe appellants were instrumental in any manner with regard to openingof the fictitious account. No evidence has been led in support of criminalconspiracy. It was not possible for the appellants to destroy evidencewith regard to account opening form, specimen signature of the accountholder or make forged credit or debit entries in the ledger. The report ofthe handwriting expert with regard to the writing and signature on thecheques was a mere expression of an opinion. DW-1 the handwritingexpert on behalf of the appellants had doubted the very same handwritingand signatures of the appellants. They are therefore entitled to the benefitof doubt. No action has been taken against the concerned Bankemployees responsible for opening of the fictitious account, much lesshas the prosecution even attempted to investigate and identify suchpersons. The withdrawals from the fictitious account through bearercheques were not received by the appellants as acknowledged byPW-3.

5. Learned counsel for the Central Bureau of Investigationsubmitted that there has been thorough evaluation of evidence, includingthat of handwriting experts, and the charge against the appellants standsproved.

6. We have considered the submissions on behalf of the partiesand gone through the materials on record. It is an undisputed fact that afictitious account was opened without proper verification in accordancewith the banking procedures. That unfortunately does not appear tohave been the subject of investigation and which could have revealedmore facts with regard to the nature and manner of the embezzlement A

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Athat has taken place, including the persons involved in the same. Thetrial court has rightly observed that in accordance with bankingprocedures, the opening of the account, the deposits in the same andwithdrawals could not have been the handiwork of the appellants alone.But merely because the investigation may not have been of the standardand nature that it ought to have been cannot enure to the benefit of theBappellants in view of the nature of materials and evidence available againstthem.

7. The validity of the sanction against the appellants for prosecution,who were undisputedly employed as messenger and assistant clerkrespectively in the same branch, has been proved by PW-1 and PW-2.CThe Sub. Inspector, Central Bureau of Investigation PW-23, proved thatthe appellants had given their specimen writing and signatures duringinvestigation. The Principal Scientific Officer, C.F.S.L., PW-18 deposedthat the account opening form of the fictitious account was in thehandwriting of appellant Pankaj Kumar Jain impersonating the fictitiousDaccount holder Raj Kumar. The receipt of cheque book and pass bookfrom the Bank records, on behalf of the fictitious account holder, werein the handwriting of the appellant Pankaj Kumar Jain. The writing ontwo of the withdrawal cheques drawn as “self” on the fictitious accountpurporting to be signed by the said Raj Kumar were in the handwritingof appellant Ram Gopal. The signature on all the 17 forged cheques forEwithdrawal by “self” were in the handwriting of appellant Pankaj KumarJain impersonating the fictitous account holder. These in our opinionwere sufficient to establish conspiracy. The hand writing expert DW-1relied upon by the appellants gave his report based on photocopies of thewriting and signatures of the appellants and not on the basis of theirFspecimen signatures. During the course of hearing we asked the counselfor the appellants if they had filed any objection to the report of thehandwriting expert relied upon by the prosecution. It was fairly statedthat they did not do so.

8. The fraud was committed in a systematic manner by personsGwell acquainted with banking procedures. The appellants were also theemployees of the Bank. There is no defence evidence that they had noaccess to records of the Bank at any stage to commit the offenceattributed to them. On the contrary, the evidence of their involvement isclinching. They also had access to the vouchers and ledgers as part of H

RAM GOPAL v. CBI, DEHRADUN[NAVIN SINHA, J.]

their normal duties. Even the specimen signature card was made todisappear replaced by a torn paper.

9. We therefore find no reason to interfere with the conviction ofthe appellants. The appeals are dismissed.

Kalpana K. Tripathy

Appeals dismissed.

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