Venkatesh Vs. The State By Cbi, Acb - Court Judgment

Excerpt:
r :1. : in the high court of karnataka at bengaluru dated this the29h day of june, 2020 before the hon’ble mr.justice k.somashekar criminal appeal no.432 of2010connected with criminal appeal no.433 of2010criminal appeal no.434 of2010criminal appeal no.448 of2010crl.a.432 of2010 between: pankaj a parekh s/o late anantharai l. parekh 50 years, residing at 6-d golf links apartments cunningham road bangalore – 560 052. ...appellant (by sri. s.g. bhagavan - advocate) and: the state by cbi, acb ganganagar, bellary road bangalore. ...respondent (by sri. p. prasanna kumar – spl. pp) this crl.a. is filed under section 374 of cr.p.c praying to, set aside the judgment and order dated 30.03.2010 passed by the xxi addl. city civil and sessions judge and special judge for cbi cases, :2. :.....

Judgment:

R :

1. : IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE29H DAY OF JUNE, 2020 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL APPEAL No.432 OF2010CONNECTED WITH CRIMINAL APPEAL No.433 OF2010CRIMINAL APPEAL No.434 OF2010CRIMINAL APPEAL No.448 OF2010CRL.A.432 OF2010 BETWEEN: Pankaj A Parekh S/o late Anantharai L. Parekh 50 years, residing at 6-D Golf Links Apartments Cunningham Road Bangalore – 560 052. ...Appellant (By Sri. S.G. Bhagavan - Advocate) AND: The State by CBI, ACB Ganganagar, Bellary Road Bangalore. ...Respondent (By Sri. P. Prasanna Kumar – Spl. PP) This Crl.A. is filed under Section 374 of Cr.P.C praying to, set aside the judgment and order dated 30.03.2010 passed by the XXI Addl. City Civil and Sessions Judge and Special Judge for CBI cases, :

2. : Bangalore in Spl.C.C.No.187/2000 – convicting the Appellant / Accused No.2 for the offence punishable under Section 120-B, 420 of IPC. CRL.A.433 OF2010 BETWEEN: Asha Parekh W/o Pankaj A Parekh 45 years, residing at 6-D Golf Links Apartments Cunningham Road Bangalore – 560 052. ... Appellant (By Sri. S.G. Bhagavan - Advocate) AND: The State by CBI, ACB Ganganagar, Bellary Road Bangalore. ...Respondent (By Sri. P. Prasanna Kumar – Spl. PP) This Crl.A. is filed under Section 374 of Cr.P.C praying to, set aside the judgment and order dated 30.03.2010 passed by the XXI Addl. City Civil and Sessions Judge and Special Judge for CBI cases, Bangalore in Spl.C.C.No.187/2000 – convicting the Appellant / Accused No.3 for the offence punishable under Section 120-B, 420 of IPC. CRL.A.434 OF2010 BETWEEN: Venkatesh :

3. : S/o Ramaiah, 40 years 129, Jnanajyothi Nagar Behind S.V.K. Kalyana Mantapa Bangalore – 560 056. ...Appellant (By Sri. S.G. Bhagavan - Advocate) AND: The State by CBI, ACB Ganganagar, Bellary Road Bangalore. ...Respondent (By Sri. P. Prasanna Kumar – Spl. PP) This Crl.A. is filed under Section 374 of Cr.P.C praying to, set aside the judgment and order dated 30.03.2010 passed by the XXI Addl. City Civil and Sessions Judge and Special Judge for CBI cases, Bangalore in Spl.C.C.No.187/2000 – convicting the Appellant / Accused No.4 for the offence punishable under Section 120-B, 420 of IPC. CRL.A.448 OF2010 BETWEEN: Smt Yashmin Fathima W/o Late K Mir Tajuddin Age:50 years, Occ: Nil R/o No.376/35, 6th Cross Wilson Garden Bangalore – 12. ...Appellant (By Sri. Venkatesh .P. Dalawai - Advocate) :

4. : AND: The State by CBI, ACB Bangalore. ...Respondent (By Sri. P. Prasanna Kumar – Spl. PP) This Crl.A. is filed under Section 374(2) of Cr.P.C praying to, set aside conviction and sentence dated 30.03.2010 passed by the XXI Addl. City Civil and Sessions Judge and Special Judge for CBI cases, Bangalore in Spl.C.C.No.187/2000 – convicting the appellant / Accused No.1 for the offence punishable under Section 120-B, 420, 381, 451, 477-A and 201 of IPC, Sec. 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. These Criminal Appeals having been heard and reserved for judgment on 17.06.2020, coming on for pronouncement this day, the court delivered the following:

JUDGMENT

As all these appeals arise out of a common judgment and award, they are heard together and are disposed of by this common order.

2. Crl.A.No.432/2010 is preferred by accused No.2 Shri Pankaj A. Parekh; Crl.A.No.433/2010 is preferred by accused No.3 – Smt. Asha P. Parekh; Crl.A.No.434/2010 is preferred by accused No.4 – Sri. Venkatesha and Crl.A.No.448/2010 is preferred by Accused No.1 – Smt. :

5. : Yashmin Fathima. All these appeals have been preferred by Accused Nos.1 to 4 aggrieved by the conviction judgment rendered by the XXI Addl. City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru in Spl.C.C.No.187/2000 dated 30.03.2010, praying to allow the appeals and thereby to set-aside the conviction judgment and to acquit the appellants of the alleged offences. By the said common judgment, Accused No.1 has been convicted for offences punishable under Sections 120-B, 420, 381, 451, 477-A and 201 IPC, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Accused Nos.2 to 4 have been convicted for offences punishable under Sections 120-B and 420 IPC. Since Accused No.5 – Riyazulla Baig has died during the pendency of these appeals, the appeal in Crl.A.No.424/2010 has stood abated against him as on 18.03.2015.

3. The case of the prosecution in a nutshell, is as under: :

6. : It is stated that between 1997 and 1999, Accused No.1 Smt. Yasmin Fathima who was working as a Clerk in Service Branch, Bank of India, K.G. Road, Bengaluru and Accused No.5 Riyazulla Baig who was working as an Attender in the same bank entered into a conspiracy with Accused No.2 – Pankaj A. Parekh, Accused No.3 – Asha Parekh and Accused No.4 – Venkatesh and had thereby cheated the Bank of India in the matter of clearing 85 cheques presented by other banks. It transpires that Accused Nos.1 to 4 had presented various cheques to Syndicate Bank, Gandhinagar Branch and Bank of India, Sanjay Nagar Branch which were drawn on M/s. Fortune Times, Kismath Sales and Services and other names. When the said cheques were sent to Service Branch of Bank of India for clearing, Accused No.1 who was working as a Clerk had caused disappearance of the cheques and thereby is said to have prevented the cheques from being cleared. As per RBI norms, if the drawer bank does not receive any communication within a period of 24 hours, the bank has to credit the amounts into the drawee’s accounts. Since the cheques were never allowed to be :

7. : cleared, the amounts in the respective cheques came to be paid to the drawer without there being any corresponding debit in the account, thus causing wrongful loss to the Bank of India to a tune of Rs.35,50,484/-. The presenting Banks were giving credits in their respective accounts from which the cheques were presented, in all 85 cheques as per the clearing norms of the RBI and allowed the accused to withdraw the amounts. Accused No.1 – Yashmin Fathima who was having access to the cheques that came for the purpose of clearance at Bank of India, Service Branch, Bengaluru, had dishonestly and fraudulently by abusing her official position as a Clerk had caused disappearance of the cheques while sorting out and thus prevented the cheques from going to the respective branches for clearing purpose.

4. It further transpires in the material allegations that Accused No.2 – Pankaj A. Parekh opened a new SB Account No.10964 on 6.9.1998 at Bank of India, Sanjay Nagar Branch, Bengaluru and obtained three cheque books containing 60 cheque leaves. He is also said to :

8. : have opened three more accounts vide CDA17649in the name of M/s. Fortune Times, CA9889in the name of M/s. Kismath Sales and Services both at Syndicate Bank, Gandhinagar and CA9003in the name of M/s. Kismath Service Centre at Federal Bank, Bashyam Nagar, for the purpose of cheating. Accused No.1 is said to have issued 36 cheques and accused no.2 is said to have issued 49 cheques from their accounts in favour of the above four accounts of Accused No.2, in favour of Accused No.3’s SB Account No.10667 of Syndicate Bank and SB A/c.No.32903 of SBI, RT Nagar and in favour of Accused No.4’s SB A/c. No.71960 of Syndicate Bank, Balepet Branch. It is the allegation that these 85 cheques when they came for clearing, Accused No.1 had cause disappearance of the said cheques because of which the cheques could not reach the drawee banks and hence dishonour of the cheques never arose. Thus, out of the 85 cheques worth Rs.35,50,484/- issued by both Accused Nos.1 and 2, 68 cheques amounting to Rs.27,98,979/- were credited to the accounts of Accused No.1; Four cheques amounting to Rs.2,10,000/- were credited to the :

9. : accounts of Accused No.3; Ten cheques amounting to Rs.3,95,000/- were credited to the account of Accused No.4. The details of the cheques issued by Accused Nos.1 and 2 and the respective credits to the accounts of Accused Nos.2 to 4 are as under: Sl. Cheque Amount By whom Presenting Beneficiary No.No.Rs. issued and Bank / Branch Account by from which with date accused / bank other 1 277366 75,000 SB17128 Syndicate Kismath BOI Main Bank, Service Branch(A1) Gandhinagar Centre, CA105-97 10964 (A2) 2 277368 75,000 SB17128 Syndicate Kismath BOI Main Bank, Service Branch(A1) Gandhinagar Centre, CA46-97 10964 (A2) 3 277369 50,000 SB17128 Syndicate Kismath BOI Main Bank, Service Branch(A1) Gandhinagar Centre, CA46-97 10964 (A2) 4 277371 75,000 SB17128 Central Bank of Pankaj A BOI Main India, K.G. Parekh, SB Branch(A1) Road 15973 (A2) 20-6-97 5 277373 50,000 SB17128 Central Bank Pankaj A BOI Main of India, K.G. Parekh, SB Branch(A1) Road 2-7-97 15973 (A2) 6 382305 50,000 SB17128 Syndicate Kismath BOI Main Bank, Service Branch(A1) Gandhinagar Centre, CA65-98 10964 (A2) 7 382304 15,000 SB17128 Syndicate Kismath BOI Main Bank, Service Branch,(A1) Gandhinagar Centre, CA65-98 10964 (A2) 8 432959 35,000 OD30260 Syndicate Kismath BOI Main Bank, Service Branch,(A1) Gandhinagar Centre, CA46-97 10964 (A2) 9 432960 35,000 OD30260 Syndicate Kismath BOI Main Bank, Sales and Branch,(A1) Gandhinagar Service, CC106-98 3672 (A2) :

10. :

10. 432969 37,000 OD30260 Syndicate Kismath BOI Main Bank, Sales and Branch,(A1) Gandhinagar Service, CC27-98 3672 (A2) 11 432968 38,000 OD30260 Syndicate Kismath BOI Main Bank, Sales and Branch,(A1) Gandhinagar Service, CC27-98 3672 (A2) 12 432973 38,000 OD30260 Syndicate Kismath BOI Main Bank, Sales and Branch,(A1) Gandhinagar Service, CC87-98 3672 (A2) 13 432972 37,000 OD30260 Syndicate Kismath BOI Main Bank, Sales and Branch,(A1) Gandhinagar Service, CC87-98 3672 (A2) 14 432974 90,000 OD30260 The Federal Kismath BOI Main Bank Ltd., Service Branch,(A1) Bashyamnagar Centre, CD Branch, 4.8.98 9003 (A2) 15 432975 95,000 OD30260 The Federal Kismath BOI Main Bank Ltd., Sales Centre, Branch,(A1) Bashyamnagar CD9003(A2) Branch, 4.8.98 16 432976 80,000 OD30260 The Federal Kismath BOI Main Bank Ltd., Sales Centre, Branch,(A1) Bashyamnagar CD9003(A2) Branch, 4.8.98 17 432977 60,000 OD30260 The Federal Kismath BOI Main Bank Ltd., Service Branch,(A1) Bashyamnagar Centre, CD Branch, 4.8.98 9003 (A2) 18 286262 45,000 SB10164 Syndicate Venkatesh SB BOI Bank, Balepet, 71960 (A4) Jayanagar 11.8.98 Branch, (A1) 19 286263 40,000 SB10164 Syndicate Venkatesh SB BOI Bank, Balepet, 71960 (A4) Jayanagar 11.8.98 Branch, (A1) 20 286267 15,000 SB10164 Syndicate Kismath BOI Bank, Sales and Jayanagar Gandhinagar, Services CC Branch, (A1) 14.8.98 3672 (A4) 21 286266 10,000 SB10164 Syndicate Kismath BOI Bank, Sales and Jayanagar Gandhinagar, Services CC Branch, (A1) 14.8.98 3672 (A4) 22 286269 45,000 SB10164 Syndicate Mrs. Asha A BOI Bank, Parekh SB Jayanagar Gandhinagar, 106607 (A3) Branch (A1) 18.8.98 :

11. :

23. 286268 40,000 SB10164 Syndicate Mrs. Asha A BOI Bank, Parekh SB Jayanagar Gandhinagar, 106607 (A3) Branch (A1) 18.8.98 24 286271 30,000 SB10164 Syndicate Venkatesh SB BOI Bank, Balepet, 71960 (A4) Jayanagar 1.9.98 Branch, (A1) 25 286270 35,000 SB10164 Syndicate Venkatesh SB BOI Bank, Balepet, 71960 (A4) Jayanagar 1.9.98 Branch, (A1) 26 286273 35,000 SB10164 Syndicate Venkatesh SB BOI Bank, Balepet, 71960 (A4) Jayanagar 4.9.98 Branch, (A1) 27 286272 40,000 SB10164 Syndicate Venkatesh SB BOI Bank, Balepet, 71960 (A4) Jayanagar 4.9.98 Branch, (A1) 28 430214 45,000 SB5834 BOI Syndicate Venkatesh SB Sanjaynagar Bank, Balepet, 71960 (A4) Branch, (A2) 9.9.98 29 430212 35,000 SB5834 BOI Syndicate Venkatesh SB Sanjaynagar Bank, Balepet, 71960 (A4) Branch, (A2) 9.9.98 30 430213 55,000 SB5834 BOI Syndicate Venkatesh SB Sanjaynagar Bank, Balepet, 71960 (A4) Branch, (A2) 15.9.98 31 430214 35,000 SB5834 BOI Syndicate Venkatesh SB Sanjaynagar Bank, Balepet, 71960 (A4) Branch, (A2) 15.9.98 32 430222 60,000 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Sales and Branch, (A2) Gandhinagar, Services CC229.98 3672 (A2) 33 430223 65,000 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Services Branch, (A2) Gandhinagar, Centre CA229.98 10964 (A2) 34 430224 60,000 SB5834 BOI SBI, R.T. Nagar Asha P Sanjaynagar Parekh SB Branch, (A2) 32803 (A3) 35 430225 65,000 SB5834 BOI SBI, R.T. Nagar Asha P Sanjaynagar Parekh SB Branch, (A2) 32803 (A3) 36 430221 35,000 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Services Branch, (A2) Gandhinagar, Centre CA259.98 10964 (A2) 37 430220 50,000 SB5834 BOI SBI, 5th Block, T.R. Shaw SB Sanjaynagar Rajajinagar, 24308 :

12. : Branch, (A2) 6.10.98 38 430203 46,505 SB5834 BOI Vijaya Bank, Travel Air Pvt. Sanjaynagar Mallesaram, Ltd., CD1306Branch, (A2) 6.10.98 39 430217 45,000 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Service Branch, (A2) Gandhinagar, Centre CD710.98 10964 (A2) 40 430218 95,000 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Sales and Branch, (A2) Gandhinagar Service, CC710-98 3672 (A2) 41 430215 65,000 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Sales and Branch, (A2) Gandhinagar Service, CC910-98 3672 (A2) 42 430216 85,000 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Service Branch, (A2) Gandhinagar Centre, CD910-98 10964 (A2) 43 430209 55,000 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Service Branch, (A2) Gandhinagar Centre, CD1310-98 10964 (A2) 44 430210 50,000 SB5834 BOI SBI, 5th Block, T.R. Shaw SB Sanjaynagar Rajajinagar, 24308 Branch, (A2) 14.10.98 45 395080 45,000 SB17128 Syndicate Kismath BOI Main Bank, Sales and Branch, (A1) Gandhinagar Service, CC1610-98 3672 (A2) 46 395081 75,000 SB17128 Syndicate Kismath BOI Main Bank, Service Branch, (A1) Gandhinagar, Centre CA1610.98 10964 (A2) 47 438807 45,000 OD30260 Syndicate Fortune BOI Main Bank, Times CA Branch (A1) Gandhinagar, 17649 (A2) 20.10.98 48 438808 85,000 OD30260 Syndicate Fortune BOI Main Bank, Times CA Branch (A1) Gandhinagar, 17649 (A2) 20.10.98 49 430206 55,000 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch (A2) Gandhinagar, 17649 (A2) 24.10.98 50 395083 85,000 SB17128 Syndicate bank, Fortune BOI Main Gandhinagar, Times CA Branch, (A1) 27.10.98 17649 (A2) 51 395084 45,000 SB17128 Syndicate Bank Fortune BOI Main Gandhinagar, Times CA :

13. : Branch, (A1) 27.10.98 17649 (A2) 52 430207 45,000 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 30.10.98 53 395085 42,000 SB17128 Syndicate Fortune BOI Main Bank, Times CA Branch, (A1) Gandhinagar, 17649 (A2) 03.11.98 54 395086 50,000 SB17128 Syndicate Fortune BOI Main Bank, Times CA Branch, (A1) Gandhinagar, 17649 (A2) 03.11.98 55 738432 65,000 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Sales and Branch, (A2) Gandhinagar, Services C1011.98 3672 (A2) 56 738433 35,000 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Service Branch, (A2) Gandhinagar, Centre CA1011.98 10964 (A2) 57 738434 42,000 SB5834 BOI Syndicate bank, Kismath Sanjaynagar Gandhinagar, Service Branch, (A2) 17.11.98 Centre CA10964(A2) 58 738437 14,000 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 23.11.98 59 738438 12,000 SB5834 BOI Syndicate Kismath Sanjaynaar, Bank, Service Branch, (A2) Gandhinagar Centre, CA2311-98 10964 (A2) 60 535327 14,000 SB5834 BOI Syndicate Kismath Sanjaynaar, Bank, Service Branch, (A2) Gandhinagar Centre, CA2411-98 10964 (A2) 61 738439 17,000 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 24.11.98 62 738440 26,843 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 26.11.98 63 535328 18,651 SB5834 BOI Syndicate Kismath Sanjaynagar, Bank, Sales and Branch, (A2) Gandhinagar Services, CC2611-98 3672 (A2) 64 535329 36,385 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) :

14. :

30. 11.98 65 535330 5,200 SB5834 BOI Syndicate Kismath Sanjaynagar, Bank, Sales and Branch, (A2) Gandhinagar Services, CC3011-98 3672 (A2) 66 535333 19,749 SB5834 BOI Syndicate Kismath Sanjaynagar, Bank, Services Branch, (A2) Gandhinagar Centre, CA0512-98 10964 (A2) 67 535334 18,564 SB5834 BOI Syndicate Kismath Sanjaynagar, Bank, Sales and Branch, (A2) Gandhinagar Services, CC0512-98 3672 (A2) 68 535335 11,295 SB5834 BOI Syndicate Kismath Sanjaynagar, Bank, Sales and Branch, (A2) Gandhinagar Services, CA0812-98 10964 (A2) 69 535336 13,165 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 08.12.98 70 738435 11,845 SB5834 BOI Syndicate Kismath Sanjaynagar, Bank, Sales and Branch, (A2) Gandhinagar Services, CA1212-98 10964 (A2) 71 535337 14,765 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Brach, (A2) Gandhinagar, 17649 (A2) 12.12.98 72 535338 16,480 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Sales and Branch, (A2) Gandhinagar, Services CC1412.98 3672 (A2) 73 535340 5,352 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Service Branch, (A2) Gandhinagar, Centre CA1712.98 10964 (A2) 74 535339 10,195 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 17.12.98 75 535341 36,725 SB5834 BOI Syndicate Fortune times Sanjaynagar Bank, CA17649Branch, (A2) Gandhinagar, (A2) 22.12.98 76 535342 29,680 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Sales and Branch, (A2) Gandhinagar, Services CC2212.98 3672 (A2) 77 535343 33,595 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Sales and Branch, (A2) Gandhinagar, Services CC :

15. :

22. 12.98 3672 (A2) 78 535344 13,985 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 26.12.98 79 535346 26,965 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 02.01.99 80 535348 29,435 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 09.01.99 81 286275 82,000 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 23.01.99 82 535350 55,000 SB5834 BOI Syndicate Fortune Sanjaynagar Bank, Times CA Branch, (A2) Gandhinagar, 17649 (A2) 30.01.99 83 535345 10,295 SB5834 BOI Syndicate Bank Kismath Sanjaynagar Gandhinagar, Sales and Branch, (A2) 26.12.98 Services CC9889(A2) 84 535347 11,815 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Sales and Branch, (A2) Gandhinagar, Services CC0201.99 9889 (A2) 85 535349 14,995 SB5834 BOI Syndicate Kismath Sanjaynagar Bank, Sales and Branch, (A2) Gandhinagar, Services CC0901.99 9889 (A2) 5. It is further revealed from the material allegations that the Bank officials began probing into the cheque clearing differences and later it came to light that Accused No.1 had hatched a criminal conspiracy with Accused No.5 – Riyazulla Baig, the then Sub-staff of the Bank of India, Service Branch and had gained entrance into the :

16. : Service Branch on 9.2.1998 at about 8.00 a.m. by breaking open the doors of the Branch and thereby committed theft of the ‘B’ Register and thus screened off the evidence available against them. The said acts committed by Accused Nos.1 to 5 had caused a wrongful loss to the tune of Rs.35,50,484/- to the Bank of India, Bangalore and corresponding wrongful gain for themselves by hatching a criminal conspiracy among themselves, which is reflected in the charge-sheet laid by the Investigating Officer against them. Accused Nos.1 to 5 have committed not only offences under the Indian Penal Code, 1860, but also have committed offences under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 in respect of Accused Nos.1 and 5.

6. Subsequent to laying the charge-sheet against the accused, they had put in appearance through their counsel to defend their case. After Trial court framed the charges against the accused, the prosecution examined in all 29 witnesses as PW-1 to PW-29 and got marked :

17. : Exhibits P-1 to P-140 and so also got marked MO-1 and MO-2 in order to prove the guilt of the accused. Subsequent to closure of the evidence of the prosecution, the accused were examined as required under Section 313 Cr.P.C. for enabling incriminating statements appearing against them. The accused have denied the truth of the evidence of the prosecution adduced so far and they did not come forward to adduce any defence evidence as contemplated under Section 233 Cr.P.C. but got marked some documents as Exhibits D1 to D8 and 8A. Subsequently, the Trial Court has heard the arguments advanced by the learned Special Public Prosecutor for CBI and the learned counsel for the accused respectively. On appreciation of the evidence of the prosecution and so also material documents facilitated by the prosecution, the Trial Court has arrived at a conclusion and held conviction against the accused for the aforesaid offences respectively of Accused Nos.1 to 5 which is incorporated in the operative portion of the order :

18. : in detail. It is this judgment which is under challenge in these appeals preferred by Accused Nos.1 to 4 respectively. But however, since Accused No.5 Riyazulla Baig died during the during the pendency of the appeal, the appeal against him has been dismissed as abated.

7. Heard the learned counsel Shri S.G. Bhagavan appearing for the appellants in Crl.A.Nos.432/2010, 433/2010 and 434/2010 / Accused Nos.2, 3 and 4 respectively, the learned counsel Shri Venkatesh P. Dalawai, appearing for the appellant in Crl.A.No.448/2010 / Accused No.1 and the learned Special Public Prosecutor Shri P. Prasanna Kumar for the respondent – CBI and perused the impugned judgment as well as the material on record. Learned counsel Shri S.G. Bhagavan appearing for the appellants in Crl.A.Nos.432/2010, 433/2010 and 434/2010 / Accused Nos.2, 3 and 4 respectively contends that the Trial Court has erred in convicting the appellants for the offences under Sections 120-B and 420 :

19. : IPC in the absence of any material on record in respect of the ingredients of the said offences.

8. Learned counsel contends that the Trial Court erred in generalizing that Accused nos.2 to 4 in conspiracy with the other accused had defrauded the Bank of India, even without there being any evidence of conspiracy. Hence he contends that the Trial Court erred in holding that there was overwhelming material to establish the overt acts of the accused when actually there was none as regards Accused Nos.2 to 4. It is his further contention that the Trial Court erred in believing the evidence of PWs 2, 4, 9 and 10 and Exhibits P-6, 29 to 66 and 77 to 86 to assume and to record a finding that there was satisfactory evidence to establish the fact that various cheques were issued by accused no.2 and that they never came back to the Bank of India for the purpose of collection and debiting the amount in his account. He contends that after he issued the cheques, accused no.2 had no control over the said cheques and the Trial Court :

20. : has erred in convicting the accused based on assumptions. Shri Bhagavan had very much stressed upon the evidence of PW-6 and PW-21 in respect of 6th and 7th charge framed against Accused Nos.1 and 5 in respect of hatching a criminal conspiracy with a view to screen the evidence available relating to the transaction in respect of 85 cheques issued by Accused No.1 Yashmin Fathima. But PW-6 Kumara who is a staff member in the rank of Manager in that branch had come to the Bank of India, Service Branch at 9.00 a.m on 9.2.1999 and on seeing the latch of the Bank door open, had questioned PW-21 / security guard about the same. PW-21 had informed PW- 6 / Manager that Accused Nos. 1 and 5 had come to the Bank earlier and had also told that Accused No.1 had taken the ‘B’ register and clearing bag along with her. Accordingly, PW-6 being the Manager in the Bank of India, Service Branch had disclosed the aforesaid matters to the Zonal Manager, namely Shri Venkatakrishnan. But, there is no direct bearing on the evidence of PW-6 :

21. : and PW-21, as that Zonal Manager Shri Venkatakrishna has not at all been examined on the part of the prosecution to prove the important evidence in respect of Charge No.6 and Charge No.7 of Accused No.1 and Accused No.5 in respect of the ‘B’ register and clearing bag which is marked at Exhibit P-121, which is the main clearing register of RT Nagar Branch of Bank of India. In view of there being no independent evidence adduced as regards this aspect, the learned counsel contends that there is no bearing in respect of Charge No.6 and Charge No.7, as the entire case revolves around the evidence of PW-6 and PW-21 in respect of the aforesaid charges as regards the accused. Therefore, the Trial Court has erred in convicting Accused Nos.2, 3 and 4 by giving credence to the evidence of PW-2, PW-4, PW-9, PW-10 and on Exhibits P6, P29 to P66 and P77 to P86.

9. Learned counsel Shri S.G. Bhagavan also contends that the Trial Court has erred in assuming that accused no.3 Asha Parekh had opened the account as per Exhibit P-67 in order to defraud the bank without even :

22. : there being any material evidence to prove the same and has erred in giving credence to the evidence of PW-19 and has convicted the said accused without appreciating the evidence on record in a proper perspective. He also contended that the ground regarding Bankers’ Books Evidence Act, 1891 was also not considered by the Trial Court. As regards accused No.4 / Venkatesha, learned counsel contends that the Trial Court has erred in giving credence to the documentary evidence of PW-11 and Exhibit P19 to hold that the evidence of PW-11 is reflective of the fact that the cheque sent for collection was not returned with an endorsement to hold that the said nobbling acts are thus satisfactorily borne out from the record. The Trial Court even had not touched upon the submission made on behalf of Venkatesha in respect of the provisions of the Bankers’ Books Evidence Act, 1891.

10. It is his further contention that the Trial Court had not even considered his submission as regards the provisions of the Bankers’ Books Evidence Act, 1891. He :

23. : contended that incomplete pay-in-slips were produced at Exhibit P-119. Further, Exhibit P-121 which is the main clearing register of R.T.Nagar, Bengaluru was seriously disputed and he contended that the material documents produced at Exhibits P69to P121and P118cannot be led in evidence in view of the mandate of law contained in provisions of Section 2(A) of the Bankers’ Books Evidence Act. Elaborating on such contention, he submitted that these documents come within the purview of Section 2(3) of the Bankers’ Books Evidence Act and the relevant provisions contained in Section 2A(4) clearly operate as an embargo for admission of these documents. Mere entry in the books cannot be the basis for sustaining the correctness of such entries and that some independent evidence has to be given by the Bank to show that the amounts mentioned therein was advanced. In the absence of any independent evidence, the Trial Court ought to have acquitted Accused Nos.2, 3 and 4.

11. PW-23 is the Investigating Officer who registered the crime against the accused and conducted the :

24. : investigation and so also recorded the statement of witnesses and so also seized various documents marked as Exhibits P2 to P5, P17 to P22, P87 to P93 and Exhibit P109 P110 and P125 among other documents in order to lay the charge sheet against the accused. During the course of investigation, he had also secured photographer for subjecting to photos of the main door of the Service Branch of Bank of India. But this witness, an Investigating Authority had conducted the investigation in part in respect of Cr.No.117/1999 of Upparpet P.S. and it is based upon the complaint at Exhibit P1 filed by PW-1 that the case has been taken up for investigation by the ACB / CBI. But PW-24 was another IO who has conducted other part of the investigation of registering the case on the basis of the complaint filed by PW-2 Manager and had also seized MO-1 which is a Philips cellphone with no.9844012929 belonging to Accused no.2 under the mahazar Exhibit P-131. But the FIR registered by the ACB / CBI on mere debit and credit entries alone, cannot be sufficient to infer realisation of money and that he contends that mere statement of account cannot :

25. : satisfactorily prove the allegation of misappropriation by Accused No.1 by hatching a criminal conspiracy with Accused Nos.2 to 5 in respect of ‘B’ register and so also clearing bag which was stolen by Accused Nos.1 and 5 by breaking open the lock by committing criminal trespass into the branch of Bank of India. Learned counsel Shri S.G. Bhagavan has also placed reliance on a decision of the Apex Court in the case of ASHOK DEBBARMA ALIAS ACHAK DEBBARMA vs. STATE OF TRIPURA (2014) 4 SCC747which decision emphasizes on the fact that an accused has a profound right not to be convicted of an offence which is not established by the evidential standard of proof “beyond reasonable doubt”. Criminal courts, while examining whether any doubt is beyond reasonable doubt, may carry in their mind some “residual doubt”, even though the courts are convinced of the accused persons’ guilt beyond reasonable doubt. Under such circumstances, the court could entertain a “residual doubt”, which is a mitigating circumstance to be taken note of by the court. “Residual :

26. : doubt” is not a fact about the accused or the circumstances of the crime, but a lingering uncertainty about facts, a state of mind that exists somewhere between ‘beyond reasonable doubt’ and ‘absolute certainty’.

12. On all these grounds, the learned counsel Shri S.G. Bhagavan contends that the judgment of conviction and sentence rendered by the Trial Court in Spl.C.C.No.187/2000 be set aside and the appellants in Crl.A.432 to 434/2010 / AccusedNos. 2 to 4 be acquitted of the offences levelled against them.

13. Sri Venkatesh P.Dalawai, learned counsel for the appellant/accused No.1 – Smt.Yashmin Fathima contends that the trial Court has seriously erred in holding that the prosecution has proved the guilt of the accused beyond all reasonable doubt without appreciation of the evidence of PW.6-K.R.Kumar and PW.21 – S.Poongan. They are the important witnesses for the prosecution in respect of Accused No.1 – Yashmin Fathima and Accused No.5 – Riyazulla Baig who committed theft of “B” register meant :

27. : for the purpose of inward clearing by entering into service branch in the second floor in the Bank of India, K.G. Road, Bengaluru has caused wrongful loss to the tune of Rs.35,50,484/- and corresponding wrongful gain for themselves and so also, hatching a criminal conspiracy with accused Nos.2, 3 and 4 in respect of 85 cheques issued by Accused No.1 wherein that 85 cheques came for clearing favour various bank other than Bank of India. These allegations made against this accused in a charge sheet laid by the Investigating Officer and where the accused No.1 was having access to the cheques that came for clearing at Service Branch of Bank of India, Bangalore as she being a Government Servant who was working as a Clerk in that Branch.

14. The counsel has stressed his arguments relating to the sanction order marked at Ex.P.122 that it is not valid in law. PW.22 – Sudhir Jade being the Chief Manager of Bank of India wherein he has given evidence for the prosecution that during the year 2000 he was working as Deputy Zonal Manager, Bank of India, :

28. : Bangalore whereby accused No.1 – Yashmin Fathima was the employee of the said bank. He has given evidence that he accorded sanction to prosecute the case after going through the records consisting the materials secured by the Investigating Officer during the course of investigation in order to lay the charge sheet against the accused. Accordingly, he has gone through the records and found that there is a prima facie case against accused No.1 to prosecute the case. Accordingly, he accorded sanction as per Ex.P.122. But he did not disclose in detail relating to the material forwarded by the investigating agency in order to secure the sanction order to prosecute against Accused No.1 in the cross-examination of accused No.1 he has stated that he do not remember what are all the documents of domestic enquiry is seen before passing Ex.P122. But he has denied the suggestion that he has not referred the documents which were referred for sanction of prosecution as per Ex.P.122, therefore, the sanction accorded to the prosecution against Accused No.1 is not a valid sanction order to prosecute the case against her. :

29. :

15. The second limb of the argument addressed by him is with regard to the charge under Section 120-B of IPC relating to meeting of minds in hatching of conspiracy to commit an offence. There is no positive evidence on record to indicate the hatching of criminal conspiracy between accused No.1 and 5 for having committed theft of ‘B’ register on 9.2.1999. The entire case of the prosecution is revolving around the evidence of PWs.6 and 21. But the prosecution has suppressed the genesis of the alleged incident as admitted by PW.2 who filed the complaint. But the first complaint was given to Upparpet police station about breaking open of the lock of the Bank on 11.2.1999 that is after two days of the incident and then the complaint was given to CBI by PW.1 on 8.9.1999 in which improvement was made suppressing the theory of breaking open of lock by planting PW.21 – security guard to advance the theory of appellant No.1 entering the premises at 8.30 AM and coming out with certain documents and ‘B’ register and going with Accused No.5 on a scooter gets falsified. Hence the trial Court ought to :

30. : have acquitted the accused for the offence punishable under Sections 381, 451 of IPC. It is his further contention that charges against Accused No.1 ought to be framed by the Trial Court under Section 13(1)(c) of the PC Act and not under Section 13(1)(d) of the PC Act. Learned counsel Shri Venkatesh P. Dalawai further points out that that there is no documentary evidence regarding audit of accounts regarding the relevant period pertaining to the disputed 85 cheques disclosing loss of Rs.35,50,484/- caused to the Bank of India, which is very much fatal to the case of the prosecution. With regard to the same, he points out to Sections 29 and 30 of the Banking Regulation Act, 1949, which reads thus: “29. Accounts and balance-sheet (1) At the expiration of each calendar year or at the expiration of a period of twelve months ending with such date as the Central Government may, by notification in the Official Gazette, specify in this behalf,]. every banking company incorporated [in India]., in respect of all business transacted by it, and every banking company incorporated [outside India]., in respect of all business transacted through :

31. : its branches [in India]., shall prepare with reference to [that year or period, as the case may be,]. a balance-sheet and profit and loss account as on the last working day of [that year or the period, as the case may be,]. in the Forms set out in the Third Schedule or as near thereto as circumstances admit: Provided that with a view to facilitating the transition from one period of accounting to another period of accounting under this sub-section, the Central Government may by order published in the Official Gazette, make such provisions as it considers necessary or expedient for the preparation of, or for other matters relating to, the balance-sheet or profit and loss account in respect of the concerned year or period, as the case may be. (2) The balance-sheet and profit and loss account shall be signed- (a) in the case of a banking company incorporated [in India]., by the manager or the principal officer of the company and where there are more than three Directors of the company, by at least three of those Directors, or where there are not more than three Directors, by all the Directors, and (b) in the case of a banking company incorporated [outside India]. by the Manager or Agent of the principal office of the company [in India].. (3) Notwithstanding that the balance-sheet of a banking company is under subsection (1) required :

32. : to be prepared in a form other than the form [set out in Part I of Schedule VI to the Companies Act, 1956 (1 of 1956)1, the requirements of that Act relating to the balance-sheet and profit and loss account of a company shall, in so far as they are not inconsistent with this Act, apply to the balance-sheet or profit and loss account, as the case may be, of a banking company. (3A) Notwithstanding anything to the contrary contained in sub-section (3) of section 210 of the Companies Act, 1956 (1 of 1956), the period to which the profit and loss account relates shall, in the case of a banking company, be the period ending with the last working day of the year immediately preceding the year in which the annual general meeting is held. Explanation : In sub-section (3A), "year" means the year or, as the case may be, the period referred to in sub-section (1). (4) The Central Government after giving not less than three months' notice of its intention so to do by a notification in the Official Gazette, may from time to time by a like notification amend the Forms set out in the Third Schedule.

30. Audit (1) The balance-sheet and profit and loss account prepared in accordance with section 29 shall be audited by a person duly qualified under :

33. : any law for the time being in force to be an Auditor of companies.]. (1A) Notwithstanding anything contained in any law for the time being in force or in any contract to the contrary, every banking company shall, before appointing, re-appointing or removing any Auditor or Auditors, obtain the previous approval of the Reserve Bank. (1B) Without prejudice to anything contained in the Companies Act, 1956 (1 of 1956), or any other law for the time being in force, where the Reserve Bank is of opinion that it is necessary in the public interest or in the interests of the banking company or its depositors so to do, [it may at any time by order direct that the special audit of the banking company's accounts, for any such transaction or class of transactions or for such period or periods as may be specified in the order, shall be conducted and may by the same or a different order either appoint a person duly qualified under any law for the time being in force to be an Auditor of companies or direct the Auditor of the banking company himself to conduct such special audit]. and the Auditor shall comply with such directions and make a report of such audit to the Reserve Bank and forward a copy thereof to the company. (1C) The expenses of, or incidental to, [the special audit]. specified in the order made by the :

34. : Reserve Bank shall be borne by the banking company.]. (2) The Auditor shall have the powers of, exercise the functions vested in, and discharge the duties and be subject to the liabilities and penalties imposed of Auditors of companies by [section 227 of the Companies Act, 1956 (1 of 1956)]. [and Auditors, if any, appointed by the law establishing, constituting or forming the banking company concerned].. (3) In addition to the matters which under the aforesaid Act the Auditor is required to state in his report, he shall, in the case of a banking company incorporated [in India]., state in his report:- (a) whether or not the information and explanations required by him have been found to be satisfactory; (b) whether or not the transactions of the company which have come to his notice have been within the powers of the company; (c) whether or not the returns received from branch officers of the company have been found adequate for the purposes of his audit; (d) whether the profit and loss account shows a true balance [of profit or loss]. for the period covered by such account; :

35. : (e) any other matter, which he considers should be brought to the notice of the shareholders of the company.” Thus he contends that the accounts ought to have been audited as per Sections 29 and 30 of the Banking Regulation Act, 1949.

16. Further, he contends that the PW.23 – the Investigating Officer has admitted in his evidence that no investigation is done on the first complaint and FIR by the jurisdictional police and the Investigating Officer of CBI has also admitted in the evidence that no investigation is done nor the investigation done till then by the Upparpet police was secured which would indicate the deliberate attempt to suppress vital materials from the Court resulting in conviction. It is further contended that, the contents of first complaint about breaking open of lock on night of 9.2.1999 is contradictory to the version of the PW.21 about the missing of ‘B’ Register on 8.2.1999 who states :

36. : that Accused No.1 had opened the keys of the Bank at 8.30 A.M. But admittedly the keys of the Bank were with PW.6 who used to open the lock much less on every day which indicates and proves that Accused No.1 never opened lock on 8.2.1999 nor Accused No.5 took Accused No.1 on his scooter as falsely alleged. Therefore, this aspect has not been appreciated by the trial Court in a proper perspective. But has ignored the material admission of PWs.2, 3, 4, 5 and PW.23 about the persons collecting the cheques from the RBI and admissions about the existence of the acknowledgments at RBI of the person collecting the cheques which was best available evidence, therefore, the trial Court ought to have drawn adverse inference against the prosecution.

17. Further, it is contended that Accused No.1 is not the beneficiary of any finance as indicated in the allegation of the prosecution and PW.6 has categorically stated that mis-matching in the finance was reduced but, however, the Investigating Officer has not been examined with regard to this aspect. Therefore, in this appeal the :

37. : entire evidence on record has to be re-appreciated. The ingredients of the offence charged under the Prevention of Corruption Act cannot be established until the domain or entrustment is proved by documentary evidence. But on the contrary, the evidence on record indicates that Accused Nos.1 and 5 were never entrusted with clearing department of the cheques or entrusted with duty to collect cheques from the RBI. Therefore, the conviction recorded by the trial Court under the P.C.Act is illegal. Further, the oral and documentary evidence do not divulge that Accused No.1 has committed the offence as alleged by the prosecution. Therefore, it requires intervention of the impugned judgment by re-appreciating the entire evidence on record, if not, certainly it will lead to miscarriage of justice to the grave man of the charges.

18. In support of his contentions, learned counsel for the appellant/accused No.1 has relied on the following decisions of the Hon’ble Supreme Court: (I) AIR1968SUPREME COURT1413Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others :

38. : In this judgment, the Hon’ble Supreme Court has held that “Evidence Act (1 of 1872), Section 114(g), Section 103 – A party in possession of best evidence which would throw light on the issue in controversy withholding it – Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him – Party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it.” (II) AIR1977SUPREME COURT1793State of Haryana vs. N.C.Tandon “In this reliance, the Hon’ble Supreme Court has held that “Prevention of Corruption Act (2 of 1947), Section 6, Section 6(1), Section 6(2) – Sanction for prosecution of public servant – Prosecution of Superintendent in Defence Service, Grade I ( B and R) for accepting illegal gratification from a contractor – Held that on the date of commission of offence the authority competent to accord sanction was C.E.Western Command and not the Zonal Chief Engineer – Acquittal of accused for want of proper sanction held was proper.” :

39. : (III) (2006) 10 SCC447K.Devassia vs. State of Kerala In this judgment, the Hon’ble Supreme Court has held that: “Prevention of Corruption Act, 1988 – Section 19 – Lack of sanction for prosecution by competent authority – Prior to 23.4.1994, Secretary (Vigilance) was not competent to accord sanction – Considering that sanction was granted by him in present case prior to 23.4.1994, held, appellant’s conviction not sustainable – Appellant acquitted of the charges” (IV) (2015) 14 SCC186Nanjappa vs. State of Karnataka In para 22 of this judgment, the Hon’ble Supreme Court has held that, “The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying at any stage of :

40. : the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.

19. The last limb of the argument advanced by learned counsel for accused No.1 that there is no proper proof of the documents to substantiate the case against her. The entire case of the prosecution in respect of accused No.1 is revolving around the sanction accorded to prosecute as per Ex.P122 which is not a valid sanction. There is no sufficient evidence on record to show the existence of conspiracy hatching among accused Nos.1 and 5 in order to cause wrongful loss to the tune of Rs.35,50,484/- and corresponding wrongful gain for themselves. Therefore, in the absence of any evidence of :

41. : hatching conspiracy among them, accused No.1 is entitled for benefit of doubt that arise in the theory of prosecution. To bring home the guilt of the accused, the prosecution should produce cogent, consistent and positive evidence to probabalise that this accused has committed such offence. He further contends that Accused No.1 was admittedly official of the Bank of India and there was no entrustment of property to Accused No.1. There is overwhelming materials to establish the overt act against Accused No.1 by hatching a criminal conspiracy with Accused No.5 who in turn was hatching conspiracy with Accused Nos.2, 3 and 4 in respect of complicity of crime against them. Despite of it, the trial Court has misled as well as misdirected the evidence adduced on the part of the prosecution and moreover no cogent and convincing evidence is put forth by the prosecution to prove the guilt of the accused. On all these grounds, counsel for Accused No.1 seeks for allowing the appeal by setting aside the :

42. : judgment and order of conviction and sentence against Accused No.1 in Spl.C.C.No.187/2000.

20. Per contra, Sri P.Prasanna Kumar, learned Spl.PP for respondent – CBI/ACB would submit that the criminal law was set in motion by recording FIR as per Ex.P123 in R.C.21/(A)/2000 based upon the written complaint and the investigation being transferred to CBI for the offence punishable under Section 201, 420 r/w 120B of IPC and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. He submits that during the year 1998, Accused No.1 while functioning as a clerk at Bank of India, entered into a criminal conspiracy with Accused Nos.2 to 4 to cheat Bank of India by way of causing disappearance of cheques which came for clearing to the Bank. These accused presented various cheques to Syndicate Bank (Gandhinagar Branch), Bank of India (Sanjay Nagar Branch) etc which were drawn on M/s. Fortune Times, Kismath Sales and Services. When the said cheques were sent to service Branch of Bank of India for the purpose of clearing, Accused No.1 – Yashmin :

43. : Fathima caused disappearance of the cheques and thereby prevented the cheques from being cleared. Since the cheques were never allowed to be cleared, the amount came to be paid to the drawer without there being any debit in the account which lead to wrongful loss to the Bank of India to the tune of Rs.27,06,874/- and corresponding gain to Accused Nos.1 to 4. PW.22 – Sudhir Jade who was working as Deputy Zonal Manager had accorded sanction to prosecute the case against the accused persons as per Ex.P122 sanction order after having gone through the entire materials forwarded by the investigating agency consisting the charge sheet materials. After investigation charge sheet came to be laid against the accused persons for the offences punishable under Section 201, 381, 420, 451, 477A r/w 120B of IPC besides Section 13(2) r/w 13(1)(d) of the P.C.Act. The charge levelled against Accused No.1 – Yashmin Fathima, who was working as Clerk in Service Branch, K.G. Road, Bank of India and Accused No.5 – Riyazulla Baig, working as Attender, Bank of India during 1997- :

44. :

1999. entered into criminal conspiracy with Accused Nos.2 to 4 to cheat Bank of India in the matter of clearing 85 cheques presented by other banks which were issued by Accused No.1 from her account and from account of Accused No.2. Accused No.1 had caused the disappearance of these cheques which came for clearing at the Service Branch, since, the cheques were not cleared as per the RBI guidelines, they were presumed to be honoured and as such they were credited into the account without corresponding debits, thereby causing wrongful loss to the tune of Rs.35,50,484/- and corresponding gain to themselves. He contends that there is sufficient and satisfactory evidence to establish the overt acts of the accused No.1. The material on record would clearly enunciate the fact that Accused No.1 had hatched a criminal conspiracy with other accused and meddled with the processing of the cheques issued by herself and accused No.2 for the purpose of making wrongful gain of a large sum of money covered by the cheques by ensuring that these cheques never reached the Bank of India for collection and debit in :

45. : the accounts. Further, the fact of Accused No.1 visiting RBI for bringing non-MICR cheques coupled with other overt acts and theft of ‘B’ Register are a clear pointer to the complicity of Accused No.1. He further contends that Accused No.2 has not denied the incriminating statements made by PW.19 regarding encashment of cheques issued by herein favour of Kismath Sales and Center and Kismath Service and Fortune Times and the amount being credited in the said accounts without there being any debits with the Bank of India. There is cogent and convincing evidence of prosecution witnesses coupled with the totality of the circumstances to establish the charge levelled against the accused persons.

21. Learned Spl.PP would further contend that due to the disappearance, the cheques were not reaching drawee banks and as such the cheques never bounced and as per the RBI norms were presumed to be cleared. Accused No.1 has misused her position to commit the said illegality. Out of 85 cheques, 68 cheques to the tune of Rs.27,98,979/- were credited to the account of Accused :

46. : No.1, 4 cheques to the tune of Rs.2,10,000/- to the account of Accused No.3, 10 cheques to the tune of Rs.3,95,000/- to Accused No.4. When the officials started probing into the same, Accused No.1 and 5 on 9.2.1998 broke into Service Branch of Bank and committed theft of B-Register. PW.21 – S.Poongan, who was working as the Security Guard at Bank of India, Service Branch has stated in his evidence that on 09.02.1999 at about 8 a.m., Accused No.1 came in an Auto and asked him for change and went to the second floor of the branch. After 10 minutes, accused No.5 came and went to the second floor as well. At about 9 AM, Accused Nos.1 and 5 came with a clearing bag and a register and left on scooter. PW.2 – Lakshmi Vardhana Rao, Bank Manager, Bank of India during the year 1996 to 1999 was incharge of Draft Payable Section and the manager instructed this witness to find out the suspense account difference – on verification it was noticed that two cheques in January 1999 which were received from other branches were not sent to the other branches for clearance and were missing. :

47. : He further observed that cheques presented by Syndicate Bank, Gandhinagar Branch drawn on Sanjaynagar Branch issued by Accused No.2 were missing. Thereafter, he informed the zonal Office and lodged complaint to Upparpet Police Station. PW.6 – K.R.Kumar, Manager of Bank of India has stated in his evidence that debit balance could be due to reasons of clerical error, omissions, commissions and other reasons and also states that during his tenure from 1998 to 2000 he traced the cause of imbalance of debit and it was balanced to some extracts. The testimony of PW.6 would substantiate the fact that Accused No.1 used to come and assist in clearing section and used to collect instruments from RBI. Further, Accused No.5 used to accompany Accused No.1 to RBI to bring Inward Clearing Instrument. Though these witnesses were incisively cross- examined, but nothing worthwhile was elicited to disbelieve their evidence. PW.23 is the Investigating Officer in part, PW.24 is the Police Inspector, Intelligence, Nellore District and PW.25 is the Police Inspector of CCB, Bangalore they have :

48. : stated in detail regarding the FIR in RC.21(A)/2000, collected required documents through Superintendent of Police, went to Bank to obtain sanction to prosecute and also seized various documents. PW.23 the IO who registered the crime and conducted investigation has stated in his evidence as regards the complicity of accused No.5 that during his investigation he verified that accused No.5 was working as attender in communication cell and denied the suggestion that PW.21 was not an eye witness to the incident of breaking open the main door of the service branch of Bank of India. PW.24 secured the sanction order as per ex.P.122 and submitted the final report against accused. Though these witnesses were subjected to examination on the part of the prosecution and also incisive cross-examination was done by the defence counsel, but nothing worthwhile has been elicited to disbelieve the version of the prosecution. Therefore, he contends that between 1997 and 1999 Accused No.1 Smt.Yasmin Fathima who was working as Clerk, Service Branch, Bank of India, Bangalore and Accused No.5 – Riyazulla Baig working as Attender, Bank of India, Service :

49. : Branch, Bangalore having entered into conspiracy with Accused No.2 – Pankaj A.Parekh, Accused No.3 – Asha Parekh and Accused No.4 – Venkatesh to cheat the Bank of India in the matter of clearing 85 cheques presented by other banks caused disappearance of cheques, which came for clearing at Service Branch, Bank of India, Bangalore and thereby caused wrongful loss to the tune of Rs.35,50,484/- and corresponding wrongful gain for themselves and the trial Court has rightly rendered the judgment of conviction and order of sentence convicting and sentencing the accused persons for the offences levelled against them. He emphatically contends the impugned judgment does not warrant for interference of this Court. The appeals being devoid of merit are liable to be dismissed.

22. In support of his contention, learned Spl.PP has placed reliance on the following judgments:

1. S.K. Miglani //v// State (NCT of Delhi) (2009) 6 SCC111 “Criminal Procedure Code, 1973 – S. 197 – Sanction for prosecution – Requirements for :

50. : applicability of S. 197 - Public servant, but not removable by or with sanction of Government – Manager of nationalised bank – Though a public servant, but, not removable from his office save by or with the sanction of the Government – Hence, appellant cannot claim protection under S. 197 CrPC.

2. R. Venkatkrishnan //v// CBI (2009) 11 SCC737 Prevention of Corruption Act, 1988 – S. 13(1)(d)(iii) – Criminal misconduct by a public servant – Obtaining for any person any valuable thing or pecuniary advantage without any public interest – Held on facts, where bank officials of two public sector banks conducted inter-banking transaction in such manner that public money amounting Rs 40 crores was illegally made available to a private person for carrying out transactions in securities, offence under S. 13(1)(d(iii) was made out against the bank officials. For convicting a person under Section 13(1)(d)(iii), there must be evidence on record that the accused “obtained” for any other person any valuable thing or pecuniary advantage without any public advantage. All the accused were at the relevant time public servants. Each one of them played a specific role in diversion of funds from National Housing Bank to the account of Harshad Mehta, all ostensibly under a call money transaction. They thereby facilitated :

51. : Harshad Mehta to obtain pecuniary advantage within the meaning of Section 13(1)(d)(iii). The acts were not intended to be in public interest. On the contrary the public loss and suffering occasioned thereby was immeasurable. Though it is true that all the funds diverted have subsequently been returned to National Housing Bank and no actual loss has been occasioned thereby either to UCO Bank or National Housing Bank, yet white collar crimes of such a nature affect the whole society even though they may not have any immediate victims. It is accordingly held that accused, A-1 to A-3 and A-6 are guilty of criminal misconduct under Section 13(1)(d)(iii) of the Prevention of Corruption Act. Para 163:- For convicting the person under Section 13(1)(d(iii), there must be evidence on record that the accused “obtained” for any other person any valuable thing or pecuniary advantage without any public advantage. Para 167:- All the accused were at the relevant time public servants. Each one of them played a specific role in diversion of funds from NHB to the account of Harshad Mehta, all ostensibly under a call money transaction. They thereby in our opinion facilitated Harshad Mehta to obtain pecuniary advantage within the meaning of the section. The acts were anything but intended to be in public interest. On the contrary the public loss and suffering occasioned thereby was immeasurable. Though it is :

52. : true, as has been argued before us that all the funds diverted have subsequently been returned to NHB and no actual loss has been occasioned thereby either to UCO Bank or NHB . But it must not be forgotten that white collar crimes of such a nature affect the whole society even though they may not have any immediate victims. We, accordingly, hold accused A-1 to A-3 and A-6 guilty of criminal misconduct under Section 13(1)(d)(iii) of the Prevention of Corruption Act.

3. Central Bureau of Investigation //v// V K Sehgal (1999) 8 SCC501 The Hon’ble Supreme Court in para 17 and 18 of the judgment has held as under: “17. It is a further inroad into the powers of the appellate court over and above the trammel contained in Section 465 of the Code which has been dealt with supra. Under Section 13(3)(a) no order of conviction and sentence can be reversed or altered by a court of appeal or revision even “on the ground of the absence of sanction” unless in the opinion of that court a failure of justice has been occasioned thereby. By adding the explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional courts are debarred from interfering with the conviction and sentence merely on that ground. :

53. :

18. Thus the legal position to be followed, while dealing with the appeal filed against the conviction and sentence of any offence mentioned in 1947 Act, is that no such conviction and sentence shall be altered or reversed merely on the ground of absence of sanction, much less on the ground of want of competency of the authority who granted the sanction.

4. State of Maharashtra //v//Balakrishna Dattatrya Kumbhar (2012) 12 SCC384“C. Public Accountability, Vigilance and Prevention of Corruption – Generally – Corruption violative of human rights – Held, corruption undermines human rights and indirectly violates them – Systematic Human and Civil Rights – Corruption.. In para17 of the aforesaid judgment, it is held as under:

17. - The aforesaid order is, therefore, certainly not sustainable un law if examined in the light of the aforementioned judgments of this Court. Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights’ violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could :

54. : not be undone as the respondent employee, if ultimately succeeds, could claim all the consequential benefits. The submission made on behalf of the respondent, that this court should not interfere with the impugned order at such a belated stage, has no merit for the reasons that this Court, vide order dated 9-7-2009 has already stayed the operation of the said impugned order

5. Prahlad //v// State of Rajasthan (2019) 14 SCC438B. Criminal Procedure Code, 1973 - S. 313 - Examination of accused under – Silence of accused – What it indicates – Held, it leads to adverse inference against accused – evidence Act, 1872, S. 144 III. 11:- No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.

6. Niranjan Hemchandra Sashittal and another //v// State of Maharashtra (2013) 4 SCC642D. Public Accountability, Vigilance and Prevention of Corruption - Corruption / Abuse of :

55. : power – Need to eradicate – Reasons for – Held, corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills conscience, paralyses economic growth, corrodes sense of civility and mars marrows of governance – Prevention of Corruption Act, 1988, Ss.7 to 13 7. State of M.P. and others //v// Ram Singh (2000) 5 SCC88D. Prevention of Corruption Act, 1988 – Historical situation leading to enactment of, and of its predecessor Act – Recapitulated – Prevention of Corruption Act, 1947. E. Prevention of Corruption Act, 1988 – Nature and interpretation of – Held, is a social legislation to curb illegal activities of public servant sand should be liberally construed so as to advance its object and not liberally in favour of the accused – Interpretation of Statues – Particular statutes or provisions – Penal statute – Social legislation – Interpretation of G. Prevention of Corruption Act, 1988 - Preamble – Corruption – Its Characteristics and effects – Explained Corruption is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to :

56. : crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti- people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence – shaking of the socio- economic political system in an otherwise healthy, wealthy, effective and vibrating society. In paragraph 8 of the aforesaid judgment, it is held as under:

8. - Corruption in a civilised society is a disease like cancer, which if not detected in time, is sure to maliganise (sic) the polity of the country leading to disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence – shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society. :

57. :

8. Chittaranjan Shetty //v// State by CBI Bangalore (2015) 15 SCC569Public Accountability, Vigilance and Prevention of Corruption – Preventionof Corruption Act, 1988 – S. 13(1)(d)(ii) r/w S. 13(2) – Essential ingredients to prove offence under S. 13(1)(d)(ii) – Abuse of position by public servant in order to obtain for himself or for another person, any valuable thing or pecuniary advantage – “Abuse” of position must involve dishonest intention. Concurrent findings of courts below that appellant (Senior Branch Manager of PSU Bank and thus, public servant) by permitting Accused 2 to divert overdraft facilities towards payment to DW1had obtained pecuniary advantage for DW1– Sufficient evidence on record to prove that appellant was acting with dishonest intention since he had knowledge and wilfully permitted Accused 2 to utilise overdraft facilities for payment of debt owed by Accused 2 to DW1dehors terms and conditions of loan grant which categorically stated that overdraft facilities would be used only for purpose of meeting working capital requirements and for furnishing performance guarantee to Corporation with whom he had entered into contract – Furthermore, appellant had committed several irregularities in order to favour Accused 2, had acted in blatant violations of rules / regulations of Bank, and had even compelled PW18 an officer under his supervision to do same – Thus held, :

58. : conviction of appellant under S. 13(1)(d)(ii) calls for no interference In paragraphs 22 to 26 of the aforesaid it is held in detail as under:

22. - On a perusal of the abovementioned judgments, it can be concluded that in order to prove the offence under Section 13(1)(d)(ii) of the Act, it must be established that a public servant has abused his position in order to obtain for himself or for any other person, any valuable thing or pecuniary advantage, and that, in this context, the “abuse” of position must involve a dishonest intention.

23. In the present case, it is not disputed that the appellant is a public servant. As regards the element of “obtaining a valuable thing or pecuniary advantage” for himself or another person, the courts below have made concurrent findings that the appellant, by permitting Accused 2 to divert the overdraft facilities towards payment to DW1 has obtained a pecuniary advantage for DW1and we concur with the same.

24. The crucial fact that needs to be determined is whether the appellant, with dishonest intention, abused his position in order to obtain for DW1, the said pecuniary advantage. It is our considered opinion that, in the present case, there is sufficient evidence on record to prove that the :

59. : appellant was acting with a dishonest intention. The terms and conditions of the loan granted to the appellant categorically state that the overdraft facilities could be utilised only for the purpose of meeting working capital requirements and for furnishing performance guarantee in favour of the said Corporation and Accused 2 to DW1 The courts below have relied on the testimony of PW18and permitted Accused 2 to divert funds from the overdraft facility towards payment to DW1and that this fact is proof of dishonest intention on the part of the appellant. We concur with the courts below in this regard. The testimony of PW18has been corroborated by the testimony of the Sub-Manager of Karnataka Bank (PW9 who has stated that a cheque of Rs 3,60,000 was deposited in the current account of DW1as well as that of the Senior Manager, Corporation Bank, Car Street, Mangalore (PW10.

25. Furthermore, the appellant’s dishonest intention can be inferred from the facts and circumstances of the case and from the conduct of the appellant himself. During the course of these transactions, the appellant has committed several irregularities in order to favour Accused 2 and has acted in blatant disregard of the rules and regulations of the Bank and the terms and conditions of the loan issued to Accused 2 and in fact, even compelled PW18 an officer under his supervision, to :

60. : do the same. Therefore, it can be concluded that the appellant has acted with dishonest intention and has abused his position as a public servant. Thus, it can be concluded that all of the necessary elements of the offence under Section 13(1)(d)(ii) of the Act have been proved in this case.

26. In the light of the aforesaid, we are of the considered opinion that the instant case, no good ground exists for our consideration and interference. The appeal, being devoid of any merit, is liable to be dismissed and, is accordingly dismissed. Relying on the above rulings of the Hon’ble Supreme Court, the learned Spl. PP for the State prays for dismissal of the appeals outright.

23. On a careful consideration of the contentions advanced by the learned counsel Shri S.G. Bhagavan for Accused Nos.2, 3 and 4 / appellant in Crl.A.Nos.432 to 434/2010, learned counsel Shri Venkatesh P. Dalawai appearing for accused No.1 / Appellant in Crl.A.No.448/2010 and the learned Special Public Prosecutor Shri P. Prasanna Kumar for the CBI and perused the impugned judgment as well as the material :

61. : documents on record, it is gathered that during 1998 when Accused No.1 / Smt. Yashmin Fathima was working as a Clerk at Bank of India, Service Branch, entered into a criminal conspiracy with Accused Nos.2 to 4 and thereby cheated the Bank of India by way of causing disappearance of cheques which came for clearing to the Bank. Since the cheques were not cleared, as per the RBI guidelines, they were presumed to be honoured and as such they were credited into the account without any corresponding debits. For the sake of committing fraud, Accused No.2 is said to have opened four accounts namely one SB Account in Bank of India, Sanjay Nagar Branch, a CDA Account in Syndicate Bank, Gandhinagar Branch, a CA Account in Syndicate Bank Gandhinagar Branch and a CA account in Federal Bank, Bashyam Circle. Pursuant to opening such accounts, Accused No.1 had issued 36 cheques and Accused No.2 had issued 49 cheques from their respective accounts in favour of Accused Nos.3 and 4. When the said 85 cheques had come for clearing, Accused No.1 had caused disappearance of the cheques. Due to the disappearance, the cheques never reached the :

62. : drawee banks and as such the cheques never bounced and as per the RBI norms, those cheques were presumed to be cleared. When bank officials started probing into the same, Accused Nos.1 and 5 on 9.2.1998, broke open into the Service Branch of the Bank of India and stole the ‘B’ register in order to screen the evidence. As a result of the acts of all the accused persons, the Bank of India suffered a huge loss to the tune of Rs.35,50,484/-. In other words, the accused have siphoned off the said huge amount and have obtained wrongful gain for themselves.

24. Learned counsel Shri S.G. Bhagavan for Accused Nos.2 to 4 as well as the learned counsel Shri Venkatesh P. Dalawai for Accused No.1 had insisted upon the fact that though PW.22 – Sudhir Jade, Chief Managar of Bank of India had accorded sanction as per Ex.P.122 to prosecute the case after finding that there is a prima facie case made out against accused No.1, but however, PW-22 did not disclose in detail relating to the material forwarded by the investigating agency on the basis of which he accorded sanction order to prosecute against Accused :

63. : No.1. Therefore, their contention was that the sanction accorded for prosecution against Accused No.1 is not a valid sanction. As regards this aspect, it is relevant to mention that PW-22 has gone through the materials which were facilitated by the Investigating Agency and only on satisfaction as regards existence of a prima facie case against Accused No.1, he has proceeded to accord his sanction as per Exhibit P-122. Moreover, PW-22 though had been cross-examined incisively, nothing worthwhile has been elicited in order to impeach his veracity. Furthermore, none of the counsel for Accused Nos.1 to 4 had demonstrated before the Trial Court that the sanction accorded was either improper or illegal. In fact, validity of the sanction order has never been questioned before commencement of trial. In this regard, it is relevant to extract Section 19(3)(a) of the PC Act, 1988, which reads thus: “19(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- :

64. : (a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;” Hence, under Section 19(3)(a), no order of conviction and sentence can be reversed or altered by a court of appeal or revision even on the ground of absence of sanction or valid sanction, unless in the opinion of that court a failure of justice has been occasioned thereby. Hence, even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional courts are debarred from interfering with the conviction and sentence merely on that ground. Hence, I am of the opinion that the sanction accorded is a valid sanction.

25. As regards the contention of learned counsel Shri Bhagavan that though PW-6 and PW-21 had informed the fact of Accused No.1 along with Accused No.5 having taken away the ‘B’ Register and clearing bag, :

65. : to the Zonal Manager Shri Venkatakrishna, the said Zonal Manager has not at all been examined on the part of the prosecution to prove the important evidence in respect of Charge No.6 and Charge No.7 of Accused No.1 and Accused No.5, it is relevant to refer to the evidence of other witnesses. PWs 2 to 8 are the bank officials who worked in the Bank of India during the relevant time. PW-2 / P. Lakshmi Vardhana Rao had testified about missing of two cheques of Sanjaynagar Branch pertaining to Accused No.2 Pankaj Parekh in the month of January 1999 and had asserted in his evidence that when such fact was disclosed, Accused No.1 had become panicky. PW-2 had also sustained his cross-examination. PW-3 / Shylaja, a clerk in the Service Branch has deposed to the effect that though Accused No.1 was not working in the clearing section, she used to go to the RBI for depositing and bringing the cheques which were sent for collection from the Bank of India, Service Branch. Further, that she also used to assist the staff in the :

66. : Clearing section though she was not assigned the duty of Clearing section. PW-3 also had stated that on noticing a discrepancy in inward clearing, when she along with PW-5 tried to cross-check the same with the ‘B’ Register on 9.2.1999, they found that the said ‘B’ register was missing. PW-4 / Agnes L. Joseph, an Officer of the Bank of India has deposed to the effect that Accused No.1 used to volunteer to bring any MICR cheques to RBI. Further, that Accused No.1 used to collect non-MICR cheques every alternative day from RBI. She also used to collect Inward cheques of Bank of India for the purpose of delivery at 10.00 a.m. to the service branch. Accused No.1 also volunteered to take up the typing of first jotting and second jotting. PW-4 in her evidence has also disclosed about two cheques for Rs.29,028/- and Rs.43,758/- issued by Accused No.2 being encashed by Accused No.1. Though the two cheques pertained to Syndicate Bank, Accused No.1 had deliberately failed to carry the letter to Syndicate Bank for the purpose of :

67. : verification of the Syndicate Bank schedule in respect of the said two cheques. These acts mentioned by PW-4 in her evidence would clearly demonstrate the overt acts of Accused No.1 in connivance with Accused No.2. PW-6 / K.R. Kumar, Manager, Bank of India has deposed to the effect that Accused No.1 used to assist the clearing section and would also collect instruments from RBI. Further, that Accused No.5 had accompanied Accused No.1 to RBI to bring the Inward Clearing Instruments. PW-8 / M.S. Suresh, Manager, Bank of India, Jayanagar Branch has deposed about the issuance of cheque books to Accused No.1 which are marked as Exhibits P-17 to P-20. PW-9 / K.R. Srinivasan, Retd. Manager, Bank of India has deposed to the effect that three cheque books bearing Nos.430201 to 430225 (25 leaves), 738431 to 738440 (10 leaves) and 535326 to 535350 (25 leaves) were issued to Accused No.2. Further he has also asserted that :

68. : the cheques issued in favour of Accused No.2 never came to the drawee bank for debiting, which clearly reveals the overt acts of Accused No.2. PW-10 / N.P. Vidya Shankar, Manager, Syndicate Bank has deposed about the various cash credit accounts held by Accused No.2. He has stated that cheques bearing Nos.535345, 535347 and 535349 when presented to Bank of India, amounts were credited to his account. The testimony of PW-10 revealed the complicity of Accused No.2 where he realized large amount covered by the cheques without there being any debit in the account of Accused No.2 in the drawee bank. The testimony of PW-10 also reveals the complicity of Accused No.3 Asha B. Parekh who had SB A/c. No.106607 as per Exhibit P-77. He has also asserted in his evidence that the amounts covered by the cheques bearing Nos.277366, 277369, 277368, 382304, 430223, 430221, 430217, 430216, 430209, 395081, 738433, 738434, 738438, 535327, 535333, 535340 and 432959 were credited to the said Account by pay-in-slips marked as Exhibits P-73 to P-86. :

69. : The evidence of PW-10 would prove the allegation of the prosecution that the amount covered by various cheques of Accused Nos.2 and 3 were realized by them without there being any debit in their accounts in the Bank of India. Such situation of the cheques not reaching the Bank of India and the amount covered by these cheques being realized by way of credit in Syndicate Bank, Gandhinagar where they were presented, is a clear pointer to the complicity of Accused Nos.2 and 3. PW-11 / P.Y. Gopalkrishna, Senior Manager, Syndicate Bank, Balepet Branch, Bangalore, had deposed to the effect that Accused No.4 had opened A/c.No.71960 as per Exhibit P98. His evidence reveals that Accused No.4 had deposited various cheques for different amounts drawn on Bank of India, Jayanagar Branch. PW-11 had also asserted that the party concerned had withdrawn the amount credited to Accused No.4’s account to which there is entry as per Exhibit P-90. His evidence establishes that Accused No.4 is a beneficiary of the conspiracy of Accused No.1 with Accused Nos.2 and 3. :

70. : PW-12 / K. Srinivasan, Chief Manager, Central Bank of India had deposed to the effect that Accused No.2 held an SB Account No.15973 with Central Bank of India. He has spoken about the two cheques bearing No.277373 and 277371 for Rs.50,000/- and Rs.70,000/- having been credited to the said A/c.No.15973 . This as well was credited without there being any debit in the account of the Bank of India from where the cheques were drawn. PW-14 / Francis Xavier, Senior Manager, Federal Bank, Rajajinagar Branch has deposed about the fact of amounts of Rs.60,000/-, Rs.80,000/-, Rs.95,000 and Rs.90,000/- respectively having been credited to A/c.No.CD9003pertaining to the cheques belonging to M/s. Kismath Service Center (Accused No.2). Those cheques were not returned and the amounts were credited by virtue of pay-in-slips and were withdrawn by the party. PW-16 / Vasantha Sundaram, a representative of M/s. Travel Air Pvt. Ltd. has deposed to the effect that Accused Nos.1 and 2 had purchased air tickets to visit Switzerland. He has revealed that tickets were purchased :

71. : for Rs.34,150/- each and the fare amount was paid through cheque for Rs.46,505/- by Bank of India and the remaining amount was paid in cash. It reveals that Accused Nos.1 and 2 had spent substantial amount for their foreign tour. PW-17 was the photographer who had taken photographs of the main door of the Bank of India, Service Branch on 9.12.2000, which are marked as Exhibits P.114 and P.115. PW-18 / Paresh T. Gala has deposed about repayment of loan by Accused No.2 by way of two cheques for Rs.50,000/- each of Bank of India and another cheque of Rs.1 lakh of Syndicate bank. PW-19 / M.N. Sathyaprakash, Asst. Manager, Bank of India, Udupi Branch who worked as an officer in clearance section from 1995 to 1998 has deposed to the effect that he found huge differences during the period from May 1998 and February 1999. In November 1998, he found that cheques issued by Accused Nos.1 and 2 on :

72. : Bank of India, Sanjaynagar Branch, Bengaluru Main Branch and Jayanagar Branch were credited in other banks either in their names or in the name of other known persons and such amounts were subsequently withdrawn. There was no corresponding debits in their Bank of India accounts. PW-19 asserts that when he verified the accounts of Accused No.2 with Syndicate Bank, Gandhinagar Branch, he found that most of the cheques were credited there but there was no corresponding debits in the account with the Bank of India. Further, his evidence revealed that out of 60 cheques issued in favour of Accused No.2 from Bank of India, Sanjayanagar Branch, only 9 cheques were accounted for. His testimony also corroborates the fact of breaking open the lock of the main door of Bank of India Service Branch with an intention to stealing important documents pertaining to clearing operations. Though this witness has been cross-examined at length, nothing has been elicited to bring out any exculpatory circumstances. His cross-examination also reflects the fact that the :

73. : Statements of accounts of Accused No.1 revealed the difference of hopping Rs.36 lakhs. PW-20 / K. Venkatasubbaiah, Chief Manager, SBI had produced the certified copy of the statement of accounts in respect of SB A/c. NO.32803 of Asha B. Parekh (Accused No.3), which is marked as Exhibit P-118. Pay-in-slips for amount of Rs.65,000/- and Rs.60,000/- are marked as Exhibits P-119 and P-120. His evidence would reveal that the amount covered by the cheque bearing No.430224 by Bank of India was withdrawn after crediting the amount to the account. PW-21 / S. Poongan, Security Guard, Bank of India who was working at the Bank of India, Service Branch had stated that on 9.12.1999 at about 8.00 a.m., Accused No.1 had come in an autorickshaw and had asked him for change and then went to the second floor of the branch. After 10 minutes, Accused No.5 had come there and went to the second floor as well. At about 9.00 a.m. then Accused Nos.1 and 5 had come from the second floor with a clearing bag and register and had left on scooter. When :

74. : PW-6 / Shri Kumar, Officer had enquired about the latch of the Bank being open, PW-21 had informed him about Accused Nos.1 and 5 coming to bank early and about they having taken the ‘B’ register and clearing bag. He has also deposed that when Zonal Officer arrived at the spot to examine, the latch of the door just fell down. PW-23 / M. Giridhar Rao is the Investigating Officer who registered the crime and conducted investigation and recorded statement of witness and seized various documents as Exhibits P2 to P5, P17 to P22, P87 to P93, P95, P100 to 106, P109, P110 and P125, among other documents. PW-25 / K. Nanjunde Gowda, Police Inspector, CCB had conducted part of the investigation. He had collected account opening form of Accused No.2 as per Exhibits P2 to P4 and had seized MO-1 being the Philip Cell Phone bearing No.9844012929 belonging to Accused No.2 under mahazar at Exhibit P-131. He had also seized two passbooks and cheque book of Accused No.1 in addition :

75. : to Ericson Mobile Phone bearing No.9844079593 of Accused No.1 under mahazar as per Exhibit P-134.

26. The evidence of all these witnesses would clearly reveal that fraud on the Bank of India has been committed by Accused Nos.1 to 4 (Accused No.5 is excluded as the appeal against him is dismissed as abated) as a pre- meditated act that too in conspiracy with one another. Hence, the ground as regards non examination of Shri Venkatakrishna, the Zonal Manager as regards the breaking open of the latch of the Bank of India, Service Branch does not arise for consideration at all, since the fraudulent acts of the accused has been proved by the evidence of all these witnesses. In fact, there is overwhelming material on record against Accused Nos.1 to 4 to sustain the charge that as many as 85 cheques worth Rs.35,50,484/- were issued by both Accused Nos.1 and 2 and out of these cheques, 68 cheques amounting to Rs.27,98,979/- were credited to the accounts of Accused No.1 and four cheques amounting to Rs.2,10,000/- were credited to the accounts of Accused :

76. : No.3, ten cheques amounting to Rs.3,95,000/- were credited to the account of Accused No.4. Further, the Accused Nos.1 and 5 committing trespass in order to commit theft is also satisfactorily established by the evidence of PW-21.

27. The contention as regards incomplete pay-in- slips produced at Exhibit P-119 is concerned, in view of the fact that the fraud committed by the accused has been established by way of various transactions as borne out from the material on record including the evidence of the witnesses, the said submission needs to be brushed aside, taking into consideration the gravity of the offence committed by the accused. It has to be borne in mind that corruption is not only a punishable offence but also undermines human rights, indirectly violating them. Systematic corruption is a human rights’ violation in itself, as it leads to systematic economic crimes. The contention of Shri Venkatesh P. Dalawai that charges against Accused No.1 ought to be framed under Section 13(1)(c) of the PC Act and not under Section :

77. :

13. 1)(d) of the PC Act is concerned, the said contention does not hold any water in effect, as charges were framed against Accused No.1 under Section 13(1)(d) of the PC Act and she had faced trial and was also convicted under Section 13(2) read with Section 13(1)(d) of the PC Act. Merely because this appeal is a continuity of the proceedings, it cannot arise to consider the said contention of the learned counsel.

28. In the case on hand, criminal conspiracy hatched by Accused No.1 / Smt. Yashmin Fathima and Accused No-5 / Riyazulla Baig was extended to the remaining accused, namely Accused No.2 / Shri Pankaj A. Parekh, Accused No.3 / Smt. Asha P. Parekh and Accused No.4 / Shri Venkatesha as well. Criminal conspiracy which is generally or otherwise specifically hatched, can be proved by circumstantial evidence. But it can be established through the evidence of the prosecution and so also surrounding circumstances. The criminal conspiracy hatched in the present case between Accused No.1 and Accused No.5 wherein huge amount totaling to a :

78. : sum of Rs.35,50,484/- which were credited to the accounts of Accused No.1, Accused No.2, Accused No.3 and Accused No.4 is clearly depicted in the Tabular column which has been extracted in this judgment. But the offence of criminal conspiracy is of a technical nature and the essential ingredients of the offence is a conspiratorial agreement to commit the offence. The essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. Therefore, the circumstances are proved by the prosecution during the course of the trial to establish the complicity of the accused.

29. The learned counsel Shri S.G. Bhagvan for Accused Nos.2 to 4 had contended that the genesis of the case revolves around Charge Nos.6 and 7 framed by the Trial Court against Accused No.1 / Smt. Yashmin Fathima and Accused No.5 / Riyazulla Baig. Rest of the charges which were framed against the accused respectively banked upon these two charges which have :

79. : been proved by the prosecution against the accused. But, it is evident that Accused Nos.1 and 5 had gone to the Service Branch of Bank of India and had committed theft of ‘B’ register and clearing bag and after coming out from the Service Branch, had proceeded on the scooter of Accused No.5. Thus, it is clear that these accused had hatched a criminal conspiracy to cheat the Bank of an amount to the tune of Rs.35,50,484/-. The Trial Court had considered the evidence of PW-4, PW-21 and so also PW-22 who are material witnesses, as well as other witnesses examined by the prosecution in order to prove the guilt of the accused. The siphoned amount of Rs.35,50,484/- having been credited to the accounts of Accused Nos.1 to 4, I find that there is no ground to consider the forceful submission of the learned counsel for the appellants regarding the validity of sanction accorded as per Exhibit P-122 to prosecute the case against Accused No.1.

30. Though learned counsel Shri Venkatesh P. Dalawai for Accused No.1 / Smt. Yashmin Fathima had :

80. : stressed on the fact that there was no documentary evidence regarding an audit report or internal audit report having been conducted under the Banking Regulation Act, 1949 to prove the fact that the Bank suffered a loss of Rs.35,50,484/-, the scope and object of the aforesaid provision of the Banking Regulation Act, 1949 does not arise in these appeals, as the Trial Court has already come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt by facilitating oral as well as documentary evidence. Merely because these appeals are a continuity of the proceedings, the findings recorded by the Trial Court and the impugned judgment cannot be over-turned, in view of Sections 29 and 30 of the Banking Regulations Act, 1949. The siphoned amount of Rs.35,50,484/- is public liquidity in terms of money maintained in the Bank of India, which has been credited into the accounts of Accused Nos.1 to 4 as reflected in the Tabular column. When there is no absurdity or perversity in the judgment of conviction under the PC Act, 1988 inclusive of offences under IPC, 1860 which has been charged against the :

81. : accused by the Trial Court, I am of the opinion that the ingredients of the aforesaid offences as reflected in the charge-sheet framed by the Trial Court have been proved by the prosecution by facilitating positive, consistent, cogent and corroborative evidence.

31. Considering this appeal with reference to the material documents and so also having regard to the reliances placed by learned counsel Shri S.G. Bhagvan in respect of Accused Nos.2, 3 and 4 is concerned, I find that the Trial Court has arrived at a conclusion by going through the entire oral evidence as well as documentary evidence and has rightly come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Further, the reasons assigned by the Trial Court analytically considering the evidence as well as the submission of the learned Spl PP for the ACB/CBI is clearly reflected in the impugned judgment rendered by the Trial Court under challenge in these appeals. Therefore, I find that there are no justifiable grounds or warranting circumstances to call for interference the :

82. : impugned judgment of conviction rendered by the Trial Court. Therefore, whatever grounds urged by the counsel for Accused Nos.1, 2, 3 and 4 do not hold any water in effect in order to say that there are warranting circumstances for interference.

32. In view of the aforesaid reasons, I am of the view that these appeals deserve to be rejected. Accordingly, I proceed to pass the following:

ORDER

Criminal Appeal Nos.432/2010, 433/2010, 434/2010 in respect of Accused Nos.2, 3 and 4 and Crl.A.448/2010 in respect of Accused No.1 are hereby rejected. Consequently, the judgment rendered by the Trial Court in Spl.CC.No.187/2000 dated 30.03.2010 is hereby confirmed. Sd/- JUDGE KS/DKB