B.B. Nanjappa vs State of Karnataka

K. Ramanna, J.—This revision is directed against the judgment and order of conviction and sentence dated 18-9 1995 passed by the 4th Addl.CMM at Bangalore, in C.C. No. 8034/1993, whereby the revision petitioner-accused is convicted and sentenced for an offence punishable under Sections 408, 380, 468, 471 and 420 of IPC and also to set aside the judgment and order of dismissal of the appeal passed by the FTC -III Bangalore city, in Crl. A. 172/1995, on the ground that the courts below have not applied their judicious mind in appreciating the evidence placed on record, consequently come to a wrong conclusion in convicting the petitioner for the aforesaid offences. The alleged Vikas Cash Certificate [''VCC'' for short] was not in the custody of the petitioner and the contrary the said certificate was in the exclusive custody of the manager of the bank. That the courts below erroneously come to the conclusion in convicting and sentencing the petitioner for the aforesaid offences. There are serious contradictions in the evidence of the prosecution witnesses, but instead of acquitting the petitioner, the Courts below wrongly disbelieved the defence put forth by the petitioner, by holding that the petitioner has nexus for the same. Hence this revision.

The brief facts leading to this case is that, the petitioner was working as clerk in Syndicate Bank, Mysore road branch. Bangalore, during the year 1988. According to prosecution story, petitioner is said to have committed theft of VCC bearing No. 194500/1801, from the custody of manager of the said bank without his knowledge and got opened the SB Account through P.W.2 and made him to deposit a sum of Rs. 5,000/- in VCC stating that it would fetch better interest and then forged the signature of the manager of the said branch in the VCC stolen by him by filling it in his own hand writing and delivered the same to P.W.2 making him to believe that the said VCC is genuine and thereby misappropriated a sum of Rs. 5,000/-. Therefore complaint came to be filed through PW. 1-the manger of the said bank for an offence punishable u/s 408, 420, 380, 468, 471 of IPC. After considering the evidence of the prosecution witnesses P.Ws. 1 to 7 and documentary evidence marked at Ex.P.1 to P.43, the courts below convicted the petitioner for the aforesaid offences, hence this appeal.

Heard the argument, of learned Counsel for petitioner and A.V. Ramakrishna, High Court Government Pleader for the respondent

It is contended that the petitioner was working as a clerk in the syndicate bank of P.W.1 but he was not the custodian of the VCC Certificate. The prosecution has not proved possession of the said certificate, therefore the question of petitioner forging the signature of the officer and deliver to P.W.2 Lingeshwar does not arise. The manager whose signature found on the VCC has not been examined. The comparison if any made by the expert without obtaining the specimen signature of the then manager is incorrect and improper. It is further argued that the courts below ought to have acquitted the petitioner on the ground that, no sanction has been obtained to prosecute him. It is argued that, P.W.5 admitted in his evidence that he did not find any shortage of VCC Certificate. It is argued that, evidence of P.W.4 an expert who is said to have compared the admitted and disputed signature, without obtaining the signature of the manger working at the relevant period, is incorrect and illegal. It is argued that petitioner was a union leader therefore, a false case has been filed with sole intention to harass him. Therefore it is submitted that the findings recorded by the courts below suffer from legal infirmity and liable to be set aside.

On the other hand the learned HCGP submitted that during 1988 the petitioner was working as a clerk in Syndicate Bank at Mysore road branch, Bangalore, had commuted theft of VCC bearing No. 194500/1801. It is argued that the petitioner being a clerk, working in the said branch, whenever the VCC were presented for encashment, he had an access of such certificates, even though they were in the custody of manager, therefore taking advantage of his access he has committed theft of the said certificate Ex. P.2 and by introducing P.W.2 to the Bank got opened the bank account, induced him to invest Rs. 5,000/- in VCC & then forged the signature of Manager of the said Bank, thereafter by filling it in his own handwriting delivered the same to P.W.2 making him to believe the same is genuine and thereby misappropriated the said sum of Rs. 5,000/-. Therefore the courts below were right in convicting the petitioner for the aforesaid offences. The CBI had also filed several cases against the employees of the bank who misused their power of access to such certificates, which were in the custody of manager and drawn the amount Specimen signature of the hand writing of the petitioner examined with hand writing and signature on Ex.P-2 compared and found that, the very petitioner has forged the signature of the manager, therefore the evidence placed on record by the prosecution clearly point out the guilt of the accused. Therefore there is no any incorrect, improper or illegal findings recorded by the courts below in convicting the petitioner, hence it is submitted that the present revision petition is liable to be set aside. It is argued that, the courts below have recorded their concurrent findings after appreciation and re-appreciation of the entire evidence placed on record and there is no need to interfere with the same, as there is no incorrectness or illegality in the same. Hence prayed for dismissal of this revision petition.

Having heard counsel for both the parties, the point that arises for my consideration is, Whether the older of conviction and sentence passed against the petitioner is incorrect and illegal?

As could be seen from the materials placed on record, it is clear that during 1988 the petitioner was working as a clerk in Syndicate bank, Mysore road branch, Bangalore, he was writing the VCC whenever the same is entrusted to him, thereafter he used to obtain the signature of manager. P.W.1 the manager of the bank who presented the complaint against the petitioner. Ofcourse the sub-manager and officer of the bank are the custodian of the VCC and the same were kept in safe locker, but register being taken out from the locker whenever VCC is to be issued in favour of the customers and whenever the VCC are presented for encashment. Of course in the cross examination the P.W.11 made some admission that every day all the VCC are not counted, but it does not mean that the contents of Ex. P.2 is not in the handwriting of petitioner and that he was not entrusted with the writing of VCC, the petitioner has not denied about the entrustment of writing VCC. P.W.2 Lingeshwar who had opened the SB Account and invested amount in VCC on the inducement of the petitioner, he has categorically stated pointing out the guilt of the petitioner. Ex. P.7 is the withdrawal slip, according to PW.2 he delivered the said Ex. P. 7 to the petitioner who withdrawn the amount from bank. Merely because P.W.2 has not filed any complaint against the petitioner, regarding the forgery of Ex.P.2 his evidence cannot be disbelieved. The suggestion that, he has colluded with bank officials and concocted Ex.P.2 in collusion with P.W.4 the then Manager of the bank who has issued the forged VCC to P.W.2 has been denied. The materials placed on record clearly discloses that at the relevant period, petitioner was the clerk dealing with writing VCC, he himself got opened the SB account from P.W.2 and thereafter induced him to invest money in VCC and issued Ex.P-2 and misappropriated the amount with ulterior motive. The trial court in detail discussed the evidence of prosecution witnesses and also the documentary evidence placed on record. According to P.W.2 petitioner was residing in a rented house opposite to the house of P.W.2 and he was in the habit of purchasing the provision from his shop, he persuaded him to open SB Account, after opening the account he deposited Rs. 5,000/- in his account. Petitioner induced him to deposit the said amount in VCC on the ground that he would be getting more interest, thereafter by committing theft of blank VCC filled the name of the P.W.2 and issued the same to him by forging the signature of Manager, but, when it was presented for encashment, on verification, the above fact came to light The evidence of P.W.2 clearly indicates that the petitioner who is writing such certificates misused his work of writing blank VCC by committing theft of the same, therefore it could be said that the petitioner has committed the aforesaid offences. The courts below in depth considered each and every point while passing the judgment As regard obtaining of sanction to prosecute a public servant is concerned, since the petitioner committed theft of VCC, forged the signature of the manger with ulterior motives, which cannot be said to have committed white discharging his official duties, hence no sanction is required to prosecute the petitioner. Petitioner has not examined any witness to prove that he is one of the union leader of Syndicate Bank Employees Association and in order to harass him, a false complaint has been filed against him. No material has been made available before Court to believe his version. Hence I do not find any incorrect and illegal findings recorded by Courts below in convicting the petitioner. Hence this revision fails and is accordingly dismissed.