Krishnakant Arjunlal Arora vs The State of Gujarat

K.S. Jhaveri, J.—The present appeal, u/s 374 of the Code of the Criminal Procedure, 1973 is directed against the judgment and order of conviction dated 12.12.2006 passed by the learned Additional Sessions Judge, Fast Track Court No. 3, Ahmadabad in Sessions Case No. 359 of 2005 whereby the appellant has been convicted for offence u/s 420, 465, 467, 468, 471, 34, 511, 120(B) and 489(B) of IPC and sentenced appellant No. 1 to suffer RI for 4 years with fine of Rs. 3000/- in default to undergo SI for a period of one year for the offence u/s 420 sentenced him to suffer R.I. for 1 year and fine of Rs. 1,000/- in default SI for six months; for the offence u/s 465 IPC, he was sentenced to suffer RI for 10 years and a fine of Rs. 5000/- in default to undergo SI for one year and six months; for the offence u/s 467 of IPC, he was sentenced to suffer RI for 4 years and a fine of Rs. 1000/- in default SI for 1 year; for the offence u/s 468 IPC, he was sentenced to suffer RI for 1 year and a fine of Rs. 1000/- in default SI for six months; for the offence u/s 471 of IPC, he was sentenced to suffer RI for 10 years and a fine of Rs. 5000/- in default SI for 1 year and six months for the offence u/s 489(B) IPC. All the sentenced were ordered to run concurrently.

The brief facts of the prosecution case are as under:

2.1 The Complainant- Dipakbhai M. Shah is working as a Sr. Manager, Union Bank of India, Vastrapur Branch. Rameshbhai M. Patel who has a finance consultancy namely Shivashi Consultancy frequently used to visit the bank. On 25-2-2003, Rameshbhai informed the complainant about the Banker''s Note (Draft) for the amount of Rs. 2,70,00,000/-. As per the conversation with the complainant, Rameshbhai came with one Shri. R.N.Patel with the Xerox copy of the Draft. At the first glance itself the complainant got doubt that it is a bogus one , but he wanted to trap the whole gang, and therefore, he had also participated with them and told them that they have to open an account in the name of the Company, for which the draft was issued. The Banker''s Note (Draft) was in favour of MOSQUO AGENCY. After half an hour, Shri R.M.Patel again came with one Shri Krishnakant Arora, and represented him as proprietor of the MOSQUO AGENCY, who came with the rubber stamps. The complainant, had opened an account (bearing No. 23092) in the name of the firm MOSQUO AGENCY, with token amount of Rs. 100/-. As complainant had doubt about the draft, he had informed the Navrangpura Police Station, regarding the said incident. With the help of the police, the complainant had gained the confidence and on 22-3-2003 the accused were trapped as per the prior arrangement with the police.

2.2 Therefore on the basis of the FIR the offence was registered against the respondent with the Navrangpura Police Station which was registered as C.R. No. I-228/2003. Necessary investigation was carried out and the statements of several witnesses were recorded. During the course of investigation, respondents were arrested and ultimately, chargesheet was filed against them.

Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, which was numbered as Sessions Case No. 359 of 2005. The trial was initiated against the respondents.

To prove the case against accused, the prosecution has produced following documents.

Account opening form Exb. 17.

Xerox copy of the rashaning card of the accused No. 2 Exb. 18

Receipt of the Draft depository Exb. 19.

Original Draft Exb. 20.

Account opening form Exb. 21.

Card of the Accused No. 2 for the specimen signature for the account Exb. 22.

Loose Cheques Exb. 23 to 25.

Complaint Exb. 26.

Thanks letter from bank for opening account Exb. 27,28.

Copy of the Account Exb. 29, 30.

Xerox copy of the liceance of accused No. 2 Exb. 31.

Register for the issuing of blank cheques Exb. 33.

Panchnama of Muddamal Exh. 36.

Xerox copy of the Witness No. 3''s Bank Account Exb. 38.

Second panchnama of Muddamal Exb. 40.

Report of charge officer Exb. 44.

5.0 To prove the case against accused, the prosecution has examined following witnesses.

PW-1 Dipakbhai M. Shah- Complainant Exb. 16.

PW-2 Adwait Arunkant Dave, Panch Exb. 36.

PW-3 Jyotishkumar D. Patel Exb. 37.

PW-4 Bhagabhai R. Patel Exb. 39.

PW-5 Amrutlal S. Parmar Exb. 41.

PW-6 Becharbhai R. Patel P.S.I. Exb. 42.

PW-7 Ranchodji B. Chauhan P.I. Exb. 43.

PW-8 Yogendrasingh K. Chudasama P.I. Exb. 46.

At the end of trial, after recording the statement of the accused u/s 313 of Cr. P.C., and hearing arguments on behalf of prosecution and defence, the learned Sessions Judge passed the order of conviction and sentence as stated herein above.

Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the original accused has preferred the present appeal.

Learned Counsel for the appellant submitted that main Culprit is Accused No. 1 and the Accused No. 2 is only a puppet and in spite of that the accused No. 3,4 and 5 were acquitted, therefore the order of the learned Trial Court is bad in law.

Learned Counsel for the appellant further submitted that the cheque was not drawn or not returned by the present appellant, but was prepared by the accused No. 2,3, and 5 and handed over to accused No. 1. Therefore the real culprit of the case is made scapegoat and only the accused No. 2 is convicted which is bad in law.

Learned Counsel for the appellant, in the alternative further submitted that the looking to the gravity of the offence, the sentence may be reduced or less punishment may be given.

Learned APP Mr. Kodekar, appearing for the state submitted that the order of the learned Trial Court is just and proper. The complainant- Bank Manager with his visionary eyes had clearly given a chance to the accused to open an account in the Union Bank of Indian, Vastrapur Branch in presence of the witness, namely, Jyotishkumar D. Patel (Exb. 37). Even the witness, Jyotishkumar D. Patel had also witnessed the scene when the accused No. 2 came with accused No. 1 in the said bank. Even otherwise the attempt to withdraw Rs. 20 lakhs without encasing of the demand draft of Rs. 2 Crore 70 Lakhs, clearly establishes the offence committed by the accused No. 2 in presence of PW-5 Exb. 41. This witness has clearly stated that the accused No. 2 had presented the cheque for the withdrawal and then the Branch Manager had called the Police.

On close scrutiny of the evidence on record, the learned trial court has also observed that opening an account in bogus name , namely MOSQUO AGENCY with the forge rubber stamp, it self is a crime. By the evidence of Bank Manager, and PW-5 the prosecution has clearly established the offence punishable u/s 465, 467, 468, 471 of I.P.C. Further the prosecution has also successfully proved that the accused No. 2 had tried to commit cheating with the Nationalized bank by presenting a forged cheque. Thus section, 489(B) of I.P.C. is also proved. The accused No. 2 had a knowledge that he was not owner of the MOSQUO AGENCY nor the proprietor of the firm. Apart from that he had no due to any one for such a huge amount of Rs. 2 Crore 70 lakhs. Apart from that for a such a big amount , if a party had gone to open an account, it requires to be inquired by C.B.I.

As a result of hearing and perusal of the record the following aspects emerge from the evidence:

The Accused No. 2 has opened an account with Nationalized Bank where he was knowing that he was neither proprietor nor the owner of the firm for which he had applied to open an account.

Accused No. 2 had also knowledged that he is not having business in his name and that business is not conducted at the address which he had produced as Business address in the Bank.

Rubber stamp which was prepared, was not authorized by the Law.

Misrepresentation was made to the Nationalized bank that he is the owner of the bogus firm and tried to encash the amount.

He had knowledge that the documents which were presented were not genuine.

There are no legal dues for an amount of Rs. 2 Crore and 70 Lakhs.

He had knowledge that the bank documents (Draft) was forged.

Apart from that without verifying the demand draft he had tried to withdraw a huge amount of Rs. 20 lakhs, which is not permissible under the Income Tax Act. But in view of the vigilance eyes of the Bank Manager, he had given enough space to the accused to complete his offence.

Learned advocate for the appellant was not in a position to controvert any of the facts stated herein above. Therefore it is crystal clear that the appellant has committed the alleged offence.

We are in complete agreement with the reasoning and conclusion reached by the learned Trial Court. Therefore, in view of the above facts we do not think it necessary to discuss the entire evidence on record. The present appeal is therefore dismissed.

Prosecution is directed to search for the absconding accused and to initiate necessary proceedings against them.