S. Jayaseelan vs State by SPF, C.B.I.

M. Karpagavindyagam, J.—Jayaseelan, the appellant, aggrieved by the judgment rendered by the Special Court convicting and sentencing

him to undergo rigorous imprisonment for two years and a fine of Rs. 500/- for offence u/s 409, I.P.C., two years'' rigorous imprisonment for

offence u/s 477-A, I.P.C. and one year rigorous imprisonment and a fine of Rs. 1,000/- for offence u/s 5(2) read with 5(1)(c) of the Prevention of

Corruption Act, has preferred this appeal.

The gravamen of the charges is that during the period between 1987-1988, the appellant being a Cashier in Indian Overseas Bank, Sedhuvalai

Branch, who was entrusted with the money of Rs. 32,552/-by the loanees by way of repayment, committed criminal breach of trust in respect of

the said amount by not crediting the same in the loan accounts, even though the appellant made relevant entries in the passbooks kept by the

loanees.

To prove the above charges under Sections 409 and 477-A, I.P.C. and Section 5(2) read with 5(1)(c) of the Prevention of Corruption Act, the

prosecution examined P.W.1 to P.W.11 and filed Exs. P1 to P78. Ultimately, the appellant was convicted for the above offences.

The facts which are leading to the filing of this appeal are as follows :

(a) The appellant Jayaseelan joined Sedhuvalai Branch of Indian Overseas Bank in the year 1985. He was the only clerical member attached to the

Branch. He was looking after clerical as well as Cashier duties. He used to receive cash from the loanees, make entries in the passbooks issued to

them and credit the same in the ledger accounts.

(b) P.W.4 Dr. Mahalingam was running a hospital in Virinchipuram. P.W.4 obtained loan from P.W.2, the Manager of the Sedhuvalai Branch of

Indian Overseas Bank, in his name and in the names of various other relatives. These loan amounts were periodically paid to the Bank through the

Cashier, the appellant. The appellant used to make entries in the passbooks. Sometimes, P.W.4 would come and pay the amount to the appellant

and on some occasions, P.W.5 on behalf of P.W.4 would come and pay the amount and get the entries in the passbooks.

(c) After the discharge of the entire loan in his account and in his family members'' accounts, he contacted the Manager P.W.2 for getting a fresh

loan. At that point of time, after verification, it was found out that the entries made in the passbooks by the appellant had not been credited in the

ledger accounts correspondingly. When this was informed by P.W.2 to P.W.4, P.W.4 showed the passbooks in which periodical entries were

made by the appellant. Therefore, P.W.2 obtained a report from P.W.4 and sent the same to the Regional Office, Vellore.

(d) On receipt of the said report, P.W. 6 was appointed as the Enquiry Officer and he conducted thorough enquiry and thereafter submitted the

report Ex. P.75 stating that the appellant committed the breach of trust and falsification of accounts by not crediting in the ledgers the amounts

received by him from the loanees. In pursuance of the direction, a complaint was given to P.W. 11, the Inspector of Police. Then, after

investigation, the charge-sheet was filed.

(e) After conclusion of trial, the appellant was asked with reference to the incriminating materials placed by the prosecution. The appellant stated

that he did not commit any offence and the passbooks marked in this case would not relate to the bank accounts, but the entries made in these

passbooks would relate to the personal transaction between P.W. 4 and himself. The trial Court ultimately concluded that the offences were made

out and accordingly, it convicted and sentenced the appellant as stated above. Hence, the appeal.

Mr. G.T. Subramanian, the learned counsel for the appellant would make his two-fold submissions :

(1) The materials available on record would not be sufficient to hold that the appellant committed the offences for which he was convicted.

(2) Even assuming that those acts have been committed by the appellant, he cannot be convicted, since the entire amounts were paid back by the

appellant to P.W. 4 even before filing of the case.

Arguing contra, Mr. Jacob Daniel, the Special Public Prosecutor for CBI cases, would submit that both the above submissions would not merit

acceptance, since the evidence of P.W. 2, P.W. 4 and P.W. 6 coupled with the documentary evidence would clearly prove that the offences have

been made out.

I have carefully considered the submissions and perused the records.

It is the specific case of the prosecution that the passbook entries were made by the appellant after receipt of cash towards the repayment of

loan from the loanees, but the same were not brought into account in the ledger books.

According to the appellant, these passbooks were not recognised by the Bank. This is quite wrong because P.W. 2, the Manager of the Bank

would specifically state in his evidence that the passbooks belonging to the Bank were entrusted to the appellant for handing over the same to

loanees. Moreover, in some of the passbooks, the Manager''s signature is found. In every passbook, there are entries not only in relation to the

receipt of the amounts but also in relation to the debited total amounts and corresponding numbers etc. Therefore, it cannot be contended that the

passbooks were not proved to be the passbooks of the Bank.

P.W. 4 and P.W. 5 would categorically state that they used to come to the appellant and hand over the cash and get entries from him. P.W. 2

identified the signature of the appellant and handwriting of the appellant contained in the passbooks marked in this case.

It is not disputed by the appellant that these entries were made by him. On the other hand, it is the case of the appellant that these entries were

made by him in relation to the personal transaction between P.W. 4 and himself. There is no basis for this defence theory.

The trial Court would elaborately deal with the documents filed by the prosecution through which it is clear that even though the amount were

received in the loanees accounts by the appellant and the entries relating to the said accounts were made in the passbooks showing the said loan

accounts and total loan amounts etc., the appellant had not credited the same in the ledger books by making the corresponding entries.

Under those circumstances, the evidence of P.Ws. 2, 4 and 6 would clinchingly prove that the amounts had been entrusted to the appellant on

behalf of the Bank by the loanees and the said amounts had not been paid to the Bank and thereby, he committed the criminal breach of trust.

The learned counsel for the appellant would cite Bhawani Sankar Begaria and Another Vs. Ratul Dutta, and P. Durugappa Vs. State of

Mysore, to show that mere retention of money is by itself not sufficient to conclude that the accused was guilty of criminal breach of trust and on

the other hand, the prosecution has to establish that the accused misappropriated and converted the same for his own use, that too, dishonestly.

The proposition laid down in these decisions would not help the appellant, since in this case the element of dishonesty is explicit, in view of the

fact that on several occasions, the appellant made entries in the passbooks on various loanees accounts and received the cash amounts and did not

choose to show the payments in the ledger books. Therefore, I am unable to accept the contention of the counsel for the appellant in regard to first

point.

As a second limb of argument, it is contended that the entire amount has been paid back to P.W. 4 even before the investigation and,

therefore, the appellant is liable to be acquitted. For this proposition, he cited Om Prakash Vs. State of Haryana, Narendra Pratap Narain Singh

and another Vs. State of U.P., and State of Orissa Vs. Gopinath Panigrahi and Another, .

These decisions would not be applicable to the present facts of this case because in those cases, there was a mere delay in payments. But, in

this case, it is the case of the prosecution that only after the complaint was given by P.W. 4 to P.W. 2 and only after enquiry commenced by P.W.

6 in pursuance of the direction from the Regional Manager, the appellant thought it fit to approach P.W. 4 and paid the amount to him.

As correctly pointed out by the learned Special Public Prosecutor and as laid down in the decision in Vishwa Nath Vs. State of Jammu and

Kashmir, after committing the criminal breach of trust in respect of the money over which the accused had complete dominion, the refund of the

amount after detection would not absolve him of the offence.

Once it is proved that the amount was entrusted to him, then u/s 106 of the Evidence Act, he has to establish as to what happened to the said

amount and that fact lies within the knowledge of the accused and as such, the burden of establishing the said fact is upon him.

In this case, according to the defence, the appellant never received any amount from the loanees. But alternatively, it is contended that the

amount had been paid back.

This cannot be accepted because the person, who received back the amount from the appellant himself, has come to the box and deposed that

after receipt of the money, the appellant made false entries in the passbooks. He had also stated that after the entire loan amount had been

discharged, the appellant made entry in the passbook to the effect that the entire loan had been paid to the Bank.

Only on the basis of that, P.W. 4 approached P.W. 2 for getting fresh loan. At that stage, the fraud committed by the appellant was detected.

Only thereafter, complaint was received from P.W. 4 and the same was enquired into by P.W. 6 and after collection of all the materials, the F.I.R.

was registered and the charge-sheet was filed.

Under those circumstances, mere repayment, that too, not to the Bank to P.W. 4 would not absolve the appellant of the criminal liability. On

the other hand, it would clearly show that in order to escape from the punishment for a criminal offence, he made the payment to P.W. 4.

Therefore, I do not find any merit in the second contention as well.

In this case, for the offences under Sections 409 and 477-A, I.P.C., on each count two years imprisonment of sentence has been imposed and

both the sentences have been ordered to run concurrently by the trial Court. It is stated that already the appellant has lost his job and also he paid

back the misappropriated amount and as such, there is no loss to the Bank.

Though these facts can be taken into consideration for question of sentence, it cannot be forgotten that the appellant, who is a Bank employee

has committed the act of fraud dishonestly not only towards the Bank, which gave the job to him, but also to the public.

However, in view of the fact that the appellant has been facing the agony of the trial before the trial Court as well as the appeal enquiry before

this Court, it would be appropriate to reduce the sentence of two years to 1� years on each account, i.e. 18 months. In other respects, the

sentence is confirmed.

With the above modification in imprisonment alone, the appeal is dismissed. The trial Court is directed to take steps to secure the custody of

the appellant to undergo the remaining period of sentence.