Bhaskar Dasgupta vs The State of West Bengal

Joymalya Bagchi, J.—The appeal is directed against judgment and order dated 7/8.9.2006 passed by the learned Judge, Special (CBI) Court, Calcutta, in Special (CBI) Case No. 2 of 1989, convicting the appellant for commission of offence punishable under sections 420/468/471 of the Indian Penal Code and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5000/- in default to suffer rigorous imprisonment for three months for the offence punishable under section 420 of the Indian Penal Code, to suffer rigorous imprisonment for five years and to pay fine of Rs. 5000/- in default to suffer rigorous imprisonment for three months for the offence punishable under sections 468 of the Indian Penal Code, to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for one month for the offence punishable under section 471 of the Indian Penal Code and also sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for three months for the offence punishable under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, all the sentences to run concurrently.

The prosecution case as alleged against the appellant is to the effect as follows:

"On 13.3.1987 at about 18-50 hours one Subhas Dey, the then CBI officer of Siliguri Unit, lodged a First Information Report against the appellant, inter alia, alleging that reliable source information was received to the effect that the appellant while posted and functioning at State Bank of India, Darjeeling Branch during 1979 and 1984 dishonestly cheated the said bank by making fictitious credit entries in different accounts and subsequently withdrew huge sums of money by forging signatures of account holders. It is further alleged that the appellant withdrew a sum of Rs. 14000/- on 26.4.1982 fraudulently and received the said amount himself by forging cheque No. 478661 drawn on account No. C/111 maintained at Darjeeling Branch, State Bank of India in the joint name of one Sumitra Sen and S.N. Sen (since deceased). It was also alleged that in similar manner the appellant had withdrawn amount to the tune of Rs. 1200/- on 3.7.82, Rs. 7500/- on 2.8.82, Rs. 2000/- on 6.9.82, Rs. 1000/- on 18.11.82, Rs. 2500/- on 25.11.82, Rs. 1200/- on 1.12.82 and Rs. 750/- on 14.12.82 from accounts by forging the signature of the account holders. The appellant dishonestly issued 16 false cheques amounting to Rs. 37,396/- by forging the signature of the account holders. He also dishonestly and fraudulently withdrew a sum of Rs. 10,300/- from the savings bank account No. 3422 by forging the signature of the account holder and also by making false and fictitious credit entries in the said account which stood in the name of Smt. Sumitra Chowdhury. On the basis of the written complaint, R.C. No. 16/87 was registered against the appellant under sections 420/468/471 of the Indian Penal Code and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. In the course of investigation, documents were seized from the concerned branch of the State Bank of India, specimen writing, signature and initials of the appellant was also seized in the presence of witnesses, opinion of handwriting expert was obtained and after obtaining sanction from competent authority, charge sheet was submitted against the appellant under section 420/468/471 of the Indian Penal Code and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. Charge was framed under section 420/468/471 of the Indian Penal Code and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. It is pertinent to note that the subject matter of the aforesaid charge related to alleged forgery of cheque No. 478661 drawn on account No. C 111 to the tune of Rs. 14000/- only. No other charge was framed with regard to other allegations in the First Information Report. The appellant pleaded ''not guilty'' and claimed to be tried."

The prosecution examined as many as 15 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. Appellant, however, did not examine any witness in support of his defence. In conclusion of trial, the Trial Court by the judgment and order dated 7/8.9.2006 convicted the appellant for commission of offence punishable under sections 420/468/471 of the Indian Penal Code and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5000/- in default to suffer rigorous imprisonment for three months for the offence punishable under section 420 of the Indian Penal Code, to suffer rigorous imprisonment for five years and to pay fine of Rs. 5000/- in default to suffer rigorous imprisonment for three months for the offence punishable under sections 468 of the Indian Penal Code, to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for one month for the offence punishable under section 471 of the Indian Penal Code and also sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for three months for the offence punishable under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, all the sentences to run concurrently.

P.W. 1 was the Branch Manager of State Bank of India, Darjeeling Branch. He had issued sanction order against the appellant. He has proved sanction order (Ext. 1).

P.W. 2 was posted as Cashier of Darjeeling Branch, State Bank of India during 1980-83. He stated that the appellant was a stenographer to the Branch Manager of Darjeeling Branch of the Bank. He proved the application submitted by the appellant for obtaining a bank draft to the tune of Rs. 13000/- on 26.4.1982 (Ext. 2). He stated that he received the amount together with commission and put his signature on the cash receipt scroll. He proved his signature and entry on the cash receipt scroll being serial No. 54 (Ext. 3).

P.W. 3 was the Deputy Head Cashier of the said branch on the date of occurrence. He proved the cheque in question being cheque No. 478661 dated 26.4.1982 drawn on savings bank account No. C 111 (Ext. 4). Signature on the cheque leaf was of S.K. Mukherjee, P.W. 9, who had endorsed the cheque for payment. P.W. 3 proved the signature of the appellant on the rear of the cheque. He stated that in respect of open cheques, entries are made in the payment register of the bank before payment is actually made to the person concerned. Entry No. 22 in the payment register related to payment in respect of the cheque in question. Entry No. 22 shows that Rs. 1000/- is paid in cash to the appellant and Rs. 13000/- was transferred to the Bank. Cash receipt scroll of the bank (Ext. 3) would show the manner in which the transfer was effected to the bank. Entry 54 of the cash receipt scroll shows that the aforesaid amount of Rs. 13000/- was utilised to purchase a bank draft in favour of the appellant. He has also proved the application form submitted by the appellant for purchase of such bank draft. He has proved the bank draft prepared in the office and signed by S.K. Roy, an officer of the Bank (Ext. 6). The draft was in the name of Sumitra Sen. The endorsement on the back of the draft indicates that on 27.4.1982 the draft was deposited in the said branch and a sum of Rs. 13000/- was received by the appellant. P.W. 3 has proved the endorsement of the appellant (Ext. 6/2) on the back of the draft showing receipt of the said money. S.K. Roy passed the order for payment against the draft. P.W. 3 has proved the signature of S.K. Roy. Entry No. G-7 in the payment register shows payment of Rs. 13000/- by encashment of the draft in favour of the appellant.

P.W. 4 was the Deputy Head Cashier. He made entries in the payment register relating to payment of Rs. 13000/- to the appellant in respect of encashment of the bank draft being Entry No. G-7. He has proved such entry.

P.W. 5 was the then Superintendent of Customs who was posted at Siliguri Customs Division and P.W. 6 was an Assistant Engineer of CPWD. They have stated that specimen signature, handwriting and initials of the appellant were taken and seized by the investigating officer in their presence and the same have been exhibited. P.W. 5 proved the exhibits (Exts. 8 to 11) and P.W. 6 proved documents (Exts. 30 to 35).

P.Ws. 7 and 8 are officers of SBI who have proved the seizure of various documents from SBI in the course of investigation. They have proved seizure list as well as their signatures thereon.

P.W. 9 is an employee of SBI who was posted at the Darjeeling Branch of SBI from July, 1981 to October 1985. He has proved the cheque book issue register. The entry in the register shows that a cheque book bearing No. 478661 to 478680 was issued in favour of Smt. Sumitra Sen (Ext. 39/1). He has proved his initial against the entry being Ext. 39/2. He has also proved the initial of the appellant as the recipient of the cheque book, Ext. 39/3. In cross-examination, he stated that signature on Ext. 39/3 appeared to be of the appellant but he was not cent percent sure about that.

P.W. 10, an officer of the bank tendered for cross-examination by the defence.

P.W. 11 is another officer of the State Bank of India who was posted at Darjeeling Branch as Passing Officer from January, 1983 to January, 1987. He has proved three sheets of the savings bank ledger maintained in the said branch.

P.W. 12 is the son of Smt. Sumitra Sen, account holder of S.B. Account No. C 111. He stated that the account was maintained in the joint name of his deceased father and his mother at Darjeeling Branch of State Bank of India. He stated that his mother is residing in Calcutta. He further stated that his mother has a house in Darjeeling and municipal tax and electricity charges in respect of the said house at Darjeeling were paid by issuing account payee cheques from the said joint account. He stated that he used to write the body of the cheques ordinarily and his mother used to sign them. He stated that neither the body of the cheque nor the signature on the cheque in question (Ext. 4) was written or signed by himself or his mother. In cross-examination, he stated that after death of his father in 1988, he started looking after the properties. He has identified the signature of his mother and that of his father from the record. He stated that his specimen writings were obtained by the Investigating Officer. He further stated that his mother was suffering from schizophrenia for the last 7/8 years.

P.W. 13 is the handwriting expert who has proved his report. It is his specific evidence that the specimen handwriting of the appellant tally with the handwriting in the body of the dishonoured cheque. He has proved signature of the appellant on the rear of the cheque and bank draft. He has proved his report being Exts. 43, 44 and 45. He has further deposed that there is significant similarity in the writing characteristics of the specimen writings of the appellant and that in the forged cheque. He has also stated that there is fundamental differences in between the specimen writings of Sumitra Sen and Sumohon Sen, P.W. 12, and that on the forged cheque, Ext. 4.

PW-14 has stated that the specimen writing of PW-12 was taken in his presence by the Investigating Agency.

PW-15 is the Investigating Officer of the instant case.

Mr. Ghosh, learned counsel appearing for the appellant submitted that the prosecution has failed to prove that the appellant had received the forged cheque from PW-9. He submitted that Exhibit 39/3 was not sent to handwriting expert for verification. He further submitted that no investigation was made with regard to handing over of the cheque in question to the appellant. He further submitted that there is no evidence on record that the signature of Sumitra Sen on Exhibit 4 is a forgery. He submitted that the opinion of handwriting expert (PW-13) that specimen writings of the appellant tallied with the handwriting on the body of the cheque is bereft of adequate reasons and a weak piece of evidence and conviction ought not to be founded thereon. He submitted that the evidence of PW-9 who passed the cheque for clearance was doubtful and unreliable. He submitted that the evidence of PW-12 showed that only account payee cheques were drawn on the account and no explanation is forthcoming as to how a bearer cheque had been issued in the said account. He accordingly prayed for acquittal of the appellant.

Ms. Sinha, learned counsel appearing as amicus curiae supported the submissions of Mr. Ghosh. She further submitted that evidence with regard to receipt of the cheque is unclear and the evidence of the prosecution witness did not establish the case beyond reasonable doubt.

Mr. Ali, learned counsel appearing for the Central Bureau of Investigation submitted that the evidence of PW-2, PW-3 and PW-4 clearly established that appellant had presented the bearer cheque Exhibit 4 for encashment. Contemporaneous records maintained with the Bank also establishes such fact he received the payment. There is clear and cogent evidence that Exhibit 4 was neither written nor signed by Sumitra Sen on her son, PW-13. Evidence of PW-13 corroborates the prosecution evidence.

Exhibit 39/3 has been proved by PW-9 to be the signature of the appellant. Accordingly, he prayed for dismissal of the appeal.

PW-2 and PW-3 were the Cashier and Deputy Cashier of the Darjeeling Branch of State Bank of India at the relevant point of time. They have proved the fact that the appellant had presented the cheque in question (Exhibit 4) for encashment on S.B. Account No. C/111 maintained in the name of Sumitra Sen. They have proved the signature of the appellant on the rear of the cheque. Their evidence is corroborated by Entry 54 in the Cash Receipt Scroll maintained in the ordinary course of the business of the Bank which has been exhibited in this case. It has come on evidence that the payment in respect of the cheque was made by handing over Rs. 1,000/- in cash to the appellant and transferring Rs. 13,000/- to the Bank for purchase of a Bank Draft. Such evidence is corroborated by Entry No. 22 in the Payment Register maintained by the Bank in ordinary course of business. Entry No. 54 in the Cash Receipt Scroll being Exhibit 3 shows that the aforesaid sum of Rs. 13,000/- was used to purchase the Bank Draft by the appellant. Application by the appellant for purchase of such Bank Draft has been proved in the case. The Bank Draft issued to the appellant has been also exhibited as Exhibit 6. It appears from the evidence of PW-3 that on 27.04.1982 the Bank Draft was deposited and encashed by the appellant. Entry No. G-7 in the Payment Register dated 27.04.1982 establishes such fact. Therefore, it appears from the aforesaid evidence that prosecution has been able to prove beyond reasonable doubt that the appellant had encashed the cheque in question being Exhibit 4 in the account of Sumitra Sen and had utilized the money to obtain a sum of Rs. 1,000/- in cash and the reminder of the money to buy the Bank Draft to the tune of Rs. 13,000/- which he sought to encash on 27.041982.

The next question which falls for decision is whether the cheque in question was forged by the appellant or not. In this regard the evidence of PW-12 son of the account holder Sumitra Sen and the handwriting expert is relevant. PW-12 has categorically deposed that the Exhibit 4 is neither written by him nor signed by him or his mother. He has also proved the specimen writings of his mother in the records of the case. The specimen writings, signatures and initials of the appellant as well as PW-12 were taken in the presence of witnesses.

This fact is proved by PW-5 and PW-6 who deposed that specimen handwritings, signatures and initials of the appellant were taken in their presence. Specimen signature and handwriting of PW-12 was taken in presence of PW-13. They have proved such seizure of specimen handwriting and signatures in this case. It has been argued that permission from the Court was not taken at the time of taking specimen signature and handwriting of the witness. It is prudent to seek permission from the Court for the purpose of obtaining signature and/or handwriting of an accused during investigation. However, failure to do so would not render such evidence inadmissible in law. It would only impose on the Court a higher degree of care and circumspection in assessing the probative value of such evidence. As I find that the evidence of PW-5, PW-6 and PW-14 convincing as to the fairness in the procedure adopted in taking of specimen signature and/or writing of the appellant and that of PW-12, I am of the opinion that collection of specimen signature and/or handwriting of the appellant and PW-12 has been done in a manner which has not prejudiced the prosecution case.

PW-13 is the handwriting expert who has proved the reports. It appears from the reports that the handwriting on the body of the cheque being Exhibit 4 is that of the appellant. Signature on the rear of the Exbt. 4 (cheque) and Exbt. 6 (bank draft) are also of the appellant. He has also stated that the handwriting on the body of the cheque is not of PW-12 or his mother. Signature on the rear of Exbt. 4 (cheque) and Exbt. 6 (bank draft) are also of the appealed. PW-13 has been cross-examined, however, his evidence does not stand discredited in the course of cross-examination.

Mr. Ghosh has argued that the parameters adopted by the handwriting expert are not sound. I do not agree to such submission. The handwriting expert has given due reasons for coming to his conclusion both in his report as well as in his evidence in court. Furthermore, the opinion of the handwriting expert that the body of the cheque is not in the handwriting of PW-12 or his mother is corroborated by PW-12 himself.

For the aforesaid reasons, I am of the opinion that it can be safely concluded that the cheque in question was forged by the appellant by the writing on the body of the cheque and thereafter the appellant utilized his forged cheque to withdraw a sum of Rs. 14,000/- from the account maintained in the name of Sumitra Sen.

It has been strenuously argued that the prosecution case suffers a fatal blow as the Exhibit 39/3 (proved by PW-9) acknowledging receipt of the cheque book containing the cheque leaf in question by the appellant has not been sent for verification by handwriting expert.

It is true that Exhibit 39/3 signature of the appellant acknowledging receipt of the cheque book containing the cheque leaf in question was not verified by the handwriting expert. I find from the impugned judgment that the trial Court himself verified the said signature with the admitted signatures of the appellant on record. Such a course adopted by the trial Court cannot be said to be contrary to law.

That apart I find that PW-9 who is a colleague of the appellant and acquainted with his handwriting and signature had also deposed that in all probability the signature is that of the appellant. There is clear and convincing evidence on record that appellant was in possession of the cheque in question and encashed the said cheque after forgoing of the instrument. In the face of aforesaid cogent and convincing evidence, failure to elicit opinion from handwriting expert in respect of Exbt. 39/3 cannot be said to be fact.

In view of the aforesaid discussion, I am of the view that the totality of the prosecution evidence leads to the irresistible conclusion that the appellant was handed over the cheque book in question containing the cheque leaf which he forged to withdraw the aforesaid sum of Rs. 14,000/- from the Account No. C/111 maintained in the name of Sumitra Sen and thereafter misappropriated the said sum of money.

I am also unable to agree to the submission of Mr. Ghosh that as PW-12 has stated that the cheques ordinarily drawn on the aforesaid account were in the nature of account payee cheque, it is improbable that the cheque in question being an open/bearer cheque was permitted to be withdrawn. There is no law debarring withdrawal of an open cheque on a savings bank account. Evidence on record has established that the appellant presented and encashed the open cheque (Exb. 4) in ordinary course of business. Hence, such evidence cannot be brushed aside on the speculative argument that an open cheque could not have been permitted to be withdrawn as ordinarily account payee cheques were drawn on the account as per PW-12. The prosecution has been able to prove its case beyond reasonable doubt.

The conviction imposed upon the appellant under Sections 420/468/471 of the Indian Penal Code and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 is accordingly upheld.

Coming to the sentence, Mr. Ghosh argued that incident had occurred in 1982 and the appellant is much advanced in age. He prayed for reduction of sentence.

It is a fact that almost three decades have passed in the meantime and the appellant is a superannuated person aged about 65 years. He does not have any criminal antecedents. However, bearing in mind the fact that the appellant was a public servant and abused his position to cause wrongful gain to himself, I am of the opinion that no special or adequate reason is made out to extend the beneficial provisions of the Probation of Offenders Act to the appellant or to award sentence below the statutorily mandated minimum limit as prescribed under the Prevention of Corruption Act, 1947.

In view of the aforesaid facts, I direct that the appellant shall suffer sentence of rigorous imprisonment for a period of one year and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for three month on each count of conviction respectively with a further direction that all the sentences shall run concurrently.

The period of detention undergone by the appellant during investigation, enquiry and trial of this case shall also be set off under Section 482 of the Code of Criminal Procedure. The appellant is directed to surrender to his bail bonds before the trial Court within a month and serve out the sentence and pay the fine, as aforesaid, failing which the trial Court shall take appropriate steps for execution of the sentence and realization of fine in accordance with law.

Let a copy of the judgment along with the Lower Court Record be sent down to the trial Court at once.

I record my appreciation for the able assistance rendered by Ms. Sinha as amicus curiae to this Court for disposal of the appeal.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.