Ramakant S/O Devidas Solkke vs State Of Maharashtra & Another

By way of present appeal, the appellant has assailed the judgment of conviction in Special Case No. 01 of 1992, dated 12th April, 2002 passed by

Special Judge, Akola, thereby convicting the appellant for the offence punishable under Section 5(1)(d) read with Section 5(2) of Prevention of

Corruption Act, 1947 and sentenced him to suffer RI for one year and to pay a fine of Rs.500/Â, in default, to further suffer RI for two months. The

appellant is further convicted for the offence punishable under Sections 420, 467, 483 and 471 of the Indian Penal Code and sentenced him to suffer

RI for one year and to pay fine of Rs.500/Â​, in default, to further suffer RI for two months.

The case of the prosecution against the appellant, in short, is as under :Â​

The appellant was working as an Accountant in State Bank of India, Main Branch, Akola. One Mukund Govind Saraf was the Manager in the State

Bank of India, Commercial Branch at Mumbai. On 30.04.1986, Bharat Petroleum Corporation Limited (BPCL) gave a list of various amounts to State

Bank of India, Commercial Branch, Mumbai for transfer of various amounts to the branches mentioned in the list by Telegraphic Transfer (TT).

Mukund Saraf received the lists of BPCL and requested the State Bank of India, Commercial Branch, Mumbai to transfer the amount of

Rs.30,000/Â by TT to State Bank of India, Main Branch, Akola for payment of Operation Officer, BPCL. Accused, who was an Accountant,

received the TT on 02.05.1986. He issued bankers' cheque (Exh.67) dated 03.05.1986 for Rs.30,000/Â in the name of fictitious and non existing

person namely Champaklal Shah. He certified the identity of the said person as known to him and sent cheque for encashment. Anjali Pagrut, Cashier

of the Akola branch received the said cheque for payment. She had given the said amount of Rs.30,000/Â to the accused. It is further the case of

prosecution that Champaklal Shah was not in existence. Accused prepared false cheque in the name of Champaklal Shah. He himself passed the said

cheque and made remarks about the identification of the said person and received the amount of Rs.30,000/Â from Cashier Anjali. The appellant

thereby misappropriated the said amount. During enquiry, it was revealed about the double payment of Rs.30,000/Â and report was lodged.

Investigating Officer recorded the statements of witnesses and filed the chargeÂ​sheet before the Court.

Charge was framed by the Special Judge at Exh.14. The same was read over and explained to the appellant/accused to which he pleaded not guilty

and claimed to be tried. The prosecution has examined ten witnesses. Statement of accused came to be recorded under Section 313 of the Code of

Criminal Procedure. After hearing both the sides, the appellant/accused is convicted as stated above.

Heard Shri Mardikar, learned Senior Counsel appearing on behalf of the appellant/accused. He has submitted that the trial Court has not considered

material omissions brought on record in the evidence of PWÂ6. The evidence of other witnesses shows that TT of Rs.30,000/Â was received from

BPCL. The bankers' cheque was issued in the name of Champaklal Shah for Rs.30,000/Â. As per the procedure, cheque is to be verified by various

Officers of the bank. Cashier, who pays the amount, has to pay the amount of cheque to the concerned person. There is no evidence to show that

Champaklal Shah was not in existence. It is the specific contention of the appellant that the said amount was received by Champaklal Shah.

Learned Senior Counsel has pointed out the evidence of witnesses and submitted that it is the procedure of the bank that the cheque has to go from

one table to other and after passing the said cheque, it goes to the counter of Cashier. Cashier, after verifying the identity of the person, uses to pay

the amount of cheque. Except the evidence of PWÂ​6, there is no evidence to show that accused received the amount of cheque.

Shri Mardikar, learned Senior Counsel has further pointed out the evidence of PWÂ6 Anjali Pagrut and submitted that what she has stated

incriminating against the appellant is a material omission brought on record in her crossÂexamination. She has stated in para 8 of her crossÂ‐

examination that, she has not stated in her statement recorded by Investigating Officer about the payment of Rs.30,000/Â to the accused.

Investigating Officer Shri Kudkar has stated in his cross examination that accused was competent authority to issue bankers' cheque. He had not

collected any information about the existence of Champaklal Shah. Learned Senior Counsel has submitted that prosecution has failed to prove beyond

reasonable doubt that Champaklal Shah was not in existence. The prosecution has failed to prove that the appellant prepared false cheque and

received the amount of cheque of Rs.30,000/Â. Learned trial Court has not considered the material in its proper perspective and convicted the

appellant. At last, learned Senior Counsel prays to allow the appeal and acquit the appellant.

Heard Smt. Mugdha Chandurkar, learned Counsel appearing on behalf of respondent No.2 and Shri Dubey, learned Additional Public Prosecutor on

behalf of respondent No.1/State.

Smt. Chandurkar, learned Counsel for respondent No.2 has pointed out statement of accused under Section 313 and submitted that he has not

denied the material evidence. She has further submitted that it was for the appellant to examine/produce Champaklal Shah before the Court. The

appellant himself prepared a cheque, passed for payment and received the amount of cheque. PWÂ6 Anjali has specifically stated that she had given

cash of Rs.30,000/Â to the appellant. At last, she has submitted that the evidence is sufficient for convicting the appellant, therefore, appeal is liable to

be dismissed.

Perused the evidence on record. The evidence of PWÂ2 shows that he has transferred TT of Rs.30,000/Â to State Bank of India, Akola Branch.

PWÂ2 has stated that cheque (ArticleÂA) bears the signature of the appellant. Handwriting on the cheque was of Mrs. Ukhalkar, ClerkÂTypist,

State Bank of India, Akola. Cheque marked as SÂ2 shown to him. He could not identify the signature of the cheque. He has stated the procedure in

respect of payment of cheque. In his crossÂexamination, he has stated that all cheques are issued under the signature of TT Accountant. Accused

was TT Accountant and voucher is to be sent by TT Accountant for preparation of cheque. TT Accountant signs the bankers' cheques prepared by

his Clerk. In the evening, payment and passing receipts are tallied. If the cashier has a doubt about the cheque, he can get it cleared from the passing

Officer. If the payment is made to a person having no account in the bank then identification of the person is asked for, either from the bank

employees or the persons having bank accounts. It is a rule of prudence to ascertain that the payment is made to a proper person. Other witnesses

also stated in respect of procedure of payment of cheque.

PWÂ6 Anjali Pagrut is the material witness. She has stated in her examinationÂinÂchief that accused prepared a cheque (Exh.67). Said cheque

was received by her through transit book of appellant. It was brought by messenger of the bank. On receiving the cheque, she saw that the appellant

has passed the cheque for payment and signed it for passing. She has further stated that the appellant has identified the person Champaklal Shah

whose name is mentioned in the cheque (Exh.67). Appellant had made endorsement on the cheque that the person known to him and had signed the

endorsement. The identification endorsement was in the handwriting of the appellant and bears his signature. She made the payment of cheque

(Exh.67) to the accused. This material evidence is brought on record in her cross examination as an omission. In para 8 of her crossÂexamination,

she stated that, the CBI Officers made enquiry with her. She had disclosed to police at the time of statement that she made the payment of this

cheque (Exh.67) to accused. This fact was not mentioned in her statement before police. The statement was read by her and this fact was not

mentioned in her statement before police. She could not say why it was not mentioned in her statement. This material omission is proved by

Investigating Officer Shri Nene. He has stated in his crossÂexamination that PWÂ6 Anjali not stated before him that she made payment of cheque

(Exh.67) to accused. Except this evidence of Anjali (PWÂ6), there is no evidence to show that amount of cheque (Exh.67) was received by the

appellant. Whatever Anjali had stated in respect of payment of cheque (Exh.67) is the material omission brought on record in her crossÂexamination

and proved by Investigation Officer Shri Nene.

The evidence of Disciplinary Authority shows that he has not applied his mind properly while granting sanction to prosecute the appellant. In his

crossÂexamination, he has stated that as per rule of the bank, the payment needs to be made to the holder of cheque. No employee of the bank is

authorized to receive the payment in the name of customer. Therefore, it is clear that Anjali (PWÂ6) was not authorized to give the payment to the

appellant. Handwriting of cheque (Exh.67) is denied by the appellant in his statement under Section 313 of the Code of Criminal Procedure. There is

nothing on record to show that cheque was written in the handwriting of appellant except the endorsement of passing and identification. The

prosecution failed to examine any Handwriting Expert to prove the handwriting on the cheque (Exh.67).

As stated by the Bank Officers, it is clear that the cheque was to be prepared by the Clerk of TT Accountant. As per the evidence of PWÂ3, a

cheque was in the handwriting of Mrs. Ukhalkar, Clerk Typist, State Bank of India, Akola. Mrs. Ukhalkar was not examined by the prosecution. As

per the procedure, cheque uses to pass from one table to other and ultimately to the counter of Cashier. As per the rule, Cashier has to pay the

amount to the holder of the cheque and not any other employee of the bank. This fact is stated by PWÂ9. Other bank officers also stated that Cashier

has to pay the amount to the holder of the cheque after verifying the identity.

Disputed cheque (Exh.67) only shows the passing remarks and identification by the appellant. There is no evidence to show that accused prepared

the said cheque in his handwriting. Evidence of PWÂ 6 Anjali about the payment of Rs.30,000/Â to the appellant is nothing but material omission

proved by Investigating Officer Shri Nene. This evidence, therefore, has to be excluded from her deposition. If this evidence is excluded then there is

no evidence to show that accused accepted the amount of Rs.30,000/Â of disputed cheque (Exh.67). The prosecution has miserably failed to prove

the guilt of accused beyond reasonable doubt. Hence, the following order.

(i) Criminal Appeal is allowed.

(ii) Impugned judgment in Special Case No. 01 of 1992 dated 12th April, 2002 passed by the Special Judge, Akola is hereby quashed and set aside.

(iii) Accused/appellant is acquitted of the offences charged with.