S.S. Grewal, J.
1. G. S. Turney, District Manager, Jeet Singh, Assistant Manager, A. L. Vohra, Assistant Manager, N. K. Sood, A.G.I., R. C. Kansal, A. G. II, Balwinder Singh A.G.I., food Corporation of India, Patiala, S. K. Kansal, Proprietor M/s. Kansal Sanitary Stores, Tripuri, Patiala and nephew of R. C. Kansal, Anil Kumar Aggarwal, Clerk-cum-Cashier, State Bank of Patiala, Ropar and Gurmail Chand son of Bhagat Ram resident of Jitpuri (Hoshiarpur) were tried by Special Judge, C.B.I. Patiala, under Section 120B read with Sections 420 and 420, 467, 467, 468, 471 and 477A of the Indian Penal Code and under Section 5(2) read with Section 5(i)(d) of the Prevention of Corruption Act. N. K. Sood, accused was, however, discharged by this Court, whereas A. L. Vohra was discharged by the Special Judge. Vide order of the learned trial Court dated 8-10-1990 Balwinder Singh and Anil Kumar Aggarwal were acquitted whereas G. S. Turney, Jeet Singh, R. C. Kansal, S. K. Kansal and Gurmail Chand accused were convicted and sentenced as follows:--
G. S. Gurney: Under Section 120B read with Sections 419/420/467/468/471/477A, I.P.C. and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, Rigorous Imprisonment for 38 months under Section 420, I.P.C. under Section 420 I.P.C. Rigorous imprisonment for one year each under Section 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act, Rigorous imprisonment for 38 months, 477A, I.P.C. Rigorous imprisonment for 38 months, under Section 471, I.P.C. RI for 38 months, under Section 467, I.P.C. rigorous imprisonment for 38 months. He is also directed to pay a fine of Rs. 500/- for all the offences in default whereof he was ordered to undergo further undergo Rigorous imprisonment for two months. All the substantive sentences of imprisonment were ordered to run concurrently.
R. C. Kansal: Under Sections 120B read with Sections 420/467/468/471/477A, I.P.C. and 5 (i) (d) read with Section 5(2) of the Prevention of Corruption Act, RI for one month. Under Section 420, I.P.C., RI for one month, under Section 5(i)(d) read with Section 5(2) of Prevention of Corruption Act, RI for one month, under Section 477A, I.P.C. RI for one month, under Section 471, I.P.C., RI for one month, under Section 468, I.P.C., RI for one month, under Section 467, I.P.C., RI for one month, under Sections 467 and under Section 468, I.P.C., RI for one month. He was also directed to pay a fine of Rs. 3000/- for all the aforesaid offences, in default of payment of fine, he was ordered to further undergo RI for four months. All the substantive sentences of imprisonment were ordered to run concurrently.
Gurmail Chand : Under Sections : 120B read with Sections 419/420, 467/468/471/477A, I.P.C. read with Section 5(i)(d) read with Section 5(2) of Prevention of Corruption Act, RI for 38 months, under Section 420; I.P.C., RI for one year, under Section 419, I.P.C. RI for one year, under Section 467, I.P.C., RI for one year, under Section 468, I.P.C. RI for one year, under Section 471, I.P.C., RI for one year, under Section 420, I.P.C., RI for one year. He was also directed to pay a fine of Rs. 500/- for all the aforesaid offences, in default of payment of fine he was ordered to undergo further undergo R. I. for two months. All the substantive sentences of imprisonment were ordered to run concurrently.
S. K. Kansal : Under Sections 120B read with Sections 419/420/467/468/471 /477A, I.P.C. and 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act, under Sections 420, 109, IPC read with Section 419, I.P.C. and 471, I.P.C. till rising of the Court. He was also directed to pay a fine of Rs. 1000/- for all the aforesaid offences, in default of payment of fine he was ordered to undergo further undergo R. I. for one month. The sentences were ordered to run concurrently.
Jeet Singh : Under Sections : 120B read with Section 419/420/467/468/471/477A, I.P.C. and 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act RI for 38 months, under Section 420, I.P.C., RI for one year, under Section 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act, RI for one year, under Section 477A, I.P.C., RI for one year, under Section 471, I.P.C., RI for one year, under Section 468, I.P.C., under Section 467, I.P.C. RI for one year, under Section 467, I.P.C., RI for one year. He was also directed to pay a fine of Rupees. 500/- for all the aforesaid offences, in default of payment of fine he was ordered to undergo further RI for two months.
2. Against the order of their conviction and sentence, G. S. Turney appellant filed Criminal Appeal No. 383-SB of 1990, Jeet Singh appellant filed Criminal Appeal No. 388-SB of 1990 and Gurmail Chand appellant filed Criminal Appeal No. 389-SB of 1990. As common questions of law and fact are involved in all the aforesaid three criminal appeals, all these shall be disposed of by one judgment.
3. In brief facts of the prosecution case are that G. S. Turney, accused, while working as District Manager, Food Corporation of India, District Office, Patiala wrote letter No. DM/PA/PTA/Bhadson/ 82 dated 19th of June, 1982 to Shri Y. S. Ratra, IAS, Senior Regional Manager, Food Corporation of India. Regional Office, Punjab, Chandigarh, to the effect that Jit Singh, Assistant Manager (A/c) and Shri A. L. Vohra, Assistant Manager(Comp.)brought to his notice on 18th of June, 1982, that Rupees. 2,25,938/- (Rs. 1,14,563) on 4-9-1981 and Rs. 1,11,375/- on 26-10-1981 vide demand draft No. 033676 and Demand Draft No. 036392 respectively) have been taken by Shri Harbans Lal HTC Bhadson by claiming paid amounts on the basis of fictitious bills. Both these officers were immediately directed to proceed to Bhadson as well as meet the Bank authorities where the transactions had taken place. A copy of office note dated 18-6-1982 and orders thereon by the said officer were also attached. The reports were submitted by these officers on that day. Immediately after going through the reports the concerned documents of the Account Branch were seized and taken into custody except two bills which were not traceable in the office for which a separate memo had been issued to the Assistant Managers concerned to get it traced immediately. It was mentioned in the said letter that after going through the record, it has been observed that two drafts mentioned above have been issued by this office. One bill for Rs. 114563/- was dealt with by R. C. Kansal, AGII (A/c) and checked by N. K. Sood, A.G.I. (M) of Account Branch and the order passed were signed by A.L. Vohra, Assistant Manager (Comp), because Shri Jeet Singh Assistant Manager was on leave that day. The second bill for Rs. 1,11,375/- was dealt with by R. C. Kansal, A.G.II (A/cs) and checked by N. K. Sood A.G.I. and orders passed were signed by Jit Singh Assistant Manager. In the first case the payee account cheque was signed by him (G. S. Turney accused) as Jit Singh Assistant Manager was on leave, and, the second cheque was signed by Jit Singh who had returned from leave. After going 'through the report G. S. Turney along with Shri P. R. Ananda Rao, District Manager, proceeded to Bhadson to lodge the first information report with the police, but, Station House Officer, Bhadson, after going through the report directed them that the same should be lodged either at Patiala or at Nabha where the transactions had taken place. Accordingly, G. S. Turney and P. R. Ananda Rao, came to Patiala and contacted Station House Officer, Civil Line Patiala as the Senior Superintendent of Police's office was closed due to Saturday. The formal first information report had not been lodged but the letter had been acknowledged by the Police Station and they have been informed that the action for lodging the first information report shall be taken on 21st June, 1982.
4. It is also mentioned in the said letter that after going through the record, it has been seen that Balwinder Singh, Cashier of the office delivered one draft of Rs. 1,14,563/- to the Contractor and second draft of Rs. 1,11,375/- directly to R. C. Kansal, A.G.II (A/c). It was not understood how the Cashier had delivered the draft to the Dealing Assistant R. C. Kansal, A. G. II (A/c) when it pertained to the contractor which clearly shows suspicion about the dealing of Shri R. C. Kansal. The letters obtained from the State Bank of Patiala at Nabha where the withdrawal had taken place and the subsequent transfer of amount from Nabha to Oriental Bank at Patiala, as mentioned in the officer's report, clearly indicates that Shri R. C. Kansal, AG. II (A/cs) is the main culprit behind this conspiracy. It was also mentioned that Shri R. C. Kansal was on leave after these transactions had taken place and cuttings had been made in the control register of the Account Branch which had been seized. About delivery of draft by the Cashier, the financial procedure has not been strictly observed and separate explanation of the Cashier was also being called. Immediate suspension of Shri R. C. Kansal, A. G. II (A/Cs) and Balwinder Singh Cashier was recommended. It was further recommended that officer either JM (V&S;) or JM (Finance) may be deputed to enquire into the same. Shri Jit Singh AM was deputed to thoroughly check it and to go to the District Office that very day after proper checking. During the visit it was reported, that one special (Truck) had been loaded by the contractor last week and the payment to the extent of Rs. 77,000/- in respect thereof has not been paid Rs. 30,000/- was lying in security in the District office but more than Rs. One lac remains recoverable from the contractor against the said payment. The Assistant Manager was directed not to make any payment to the contractor for the pending bills and actual amount payable to him (Contractor) should be intimated so that the actual recoverable amount is worked out which was to be intimated in due course. The statement taken by the officer from the contractor for not receiving the above payment cannot be believed as the transaction in the bank had taken place in the name of the contractor, unless the contractor proves so. In the letter sent to the police authorities it was mentioned that the connivance of the staff at Bhadson as well as other concerned officials/officers in the Accounts Branch may also be there, and, the police authorities were requested to investigate the same.
In constitution of the aforesaid letter Shri P. R. Ananda Rao, District Manager, F.C.I. Patiala, in his confidential letter dated 24-6-1982 to the Superintendent of Police, Patiala, which according to the prosecution constitutes the first information report, it was mentioned that the contractors who are appointed for handling and transport work, prefer bills for the same which are scrutinized by the F.C.I. Staff i.e. A. G. II (D) AM (D) of the F.C.I. Centres in the district. After their certification these bills along with connected documents are forwarded to the District Officer, Patiala, where they be scrutinized by the Accounts Branch and passed, for payment with the formal approval of the District Manager. Two such bills were preferred by an imposter Shri Harbans Lal etc., Bhadson for the work done during the period 1-8-1981 to 17-8-1981 and 21-10-1981 to 22-10-1981. These two bills had been scrutinized by Shri R. C. Kansal, A.G. II (M) and then by Shri N. K. Sood A.G.I. (M) and then by Assistant Manager (A/cs)and accounts payee-demand drafts No. 033676 and 036392 for a sum of Rs. 1,14,563 and Rs. 1,11,373 respectively were issued in favour of Harbans Lal. From the record, it is seen that no such huge transaction had taken place during the period mentioned above at F.S.D. at Bhadson, and, bills had been preferred by Shri Harbans Lal. It appears that the two bills have been claimed and passed for a total amount of Rs. 2,25,938/- fictitiously. Impersonated Harbans Lal explained that the persons who are connected normally with HTC bills are (1) HTC Contractor (2) A.G.II of the F.S.D. (3) A. M. of F.S.D. (4) the officials in the Accounts Branch of the district office i.e. A. G. III (M), AG. II (M), A.G.I. (M) and A.M. (A/cs) and finally District Manager. It was gathered that Shri R. C. Kansal working in the Accounts Branch of the District office had preferred these alleged fictitious documents in the name of impersonated Harbans Lal with all the enclosures and got them passed by opening account at State Bank of Patiala, Nabha and Oriental Bank of Commerce Anaj Mandi, Patiala, these accounts pertain to two Demand Drafts issued by the said office which had been encashed. It was learnt that the account bearing No. 1421 was opened in the name of imposter Shri Harbans Lal HTC Bhadson with his address; C/o Bharat Rice Mills, Maler Kotla Road, Nabha with an initial amount of Rs. 500/-, with the help of the introducer Shri Om Prakash Arora partner of M/s. Durga Rice Mill Nabha. This current account was opened on 7-9-81. It was also learnt that Shri Anil Kumar Aggarwal working at State Bank of Patiala, Nabha was related to Shri R. C. Kansal accused, and, he had rendered necessary assistance in this regard. The first A/cs Payee Demand Draft bearing No. 033676 dated 4-9-81 for Rs. 1,14,563/- drawn on State Bank of Patiala, Nabha favouring imposter Harbans Lal was deposited in this account on 7-9-1981 and he withdraw Rs. 1,10,000/- on 7-9-1981 itself and Rs. 4000/- on 26-10-81. Again on 2-11-81 he had deposited the other A/cs Payee demand draft bearing No. 036392 dated 26-10-81 drawn on State Bank of Patiala at Bhadson and deposited Rs. 1,11,375/- (after deducting the commission for collection) Against this deposit on 2-11-81 there was a withdrawal of Rs. 1,10,000/-and another withdrawal for Rs. 6000/- on 7-12-81 and a sum of Rs. 610/- had been left as balance in this account. Again with a sum of Rs. 100/- a current account had been opened (No. 155) by the imposter Shri Harbans Lal H.T.C. Bhadson with address C/o-Badri Mal Manager, Patiala at Oriental Bank of Commerce, Anaj Mandi, Patiala. This account had been opened with the introducer viz. Shri S. K. Kansal, Proprietor Kansal Sanitary Store, Tripuri, Patiala. This Shri S. K. Kansal, had opened his current account No. 149 on 18-11-1981. He is also related to Shri R. C. Kansal, AG. II working in the Accounts Branch of F.C.I. Patiala. The aforesaid R. C. Kansal has given his partnership deed dated 10th April, 1981 with Shri S. K. Kansal and current account both the names of Shri S. K. Kansal and R. C. Kansal partners of Kansal Sanitary Store had been opened. The imposter Shri Harbans Lal H.T.C. after opening the current account in Oriental Bank of Commerce, Patiala, had given requisition to this bank to transfer the amount of Rs. 610/- lying at his credit at State Bank of Patiala, Nabha Branch. This requisition was passed on to Oriental Bank of Commerce, Nabha Branch. Then the amount was transferred from the State Bank of Patiala, Nabha to Oriental Bank of Commerce, Nabha and then to their Branch at Anaz Mandi, Patiala on 20-1-1982 for further credit to the account of Harbans Lal on 25-1-1982 and Rs. 20/- was collected as commission out of Rs. 610/- at State Bank of Patiala a Nabha and Rs. 590/- was deposited in the account of Shri Harbans Lal at O.B.C. Patiala and he withdrew Rs. 500/- on 8-4-1982 through cheque favouring Shri S. K. Kansal. The enquiry further reveals that Shri R. C. Kansal A. G. II (M) working in Accounts Branch impersonated, prepared fictitious bills got them passed at all levels in the office, opened bank account, got the money withdrawn by the impersonated Shri Harbans Lal and by forgery impersonation etc. cheated F.C.I. to the tune of Rs. 2,25,928/-. Shri R. C. Kansal proceeded on leave on 20-11-81 after passing of both the bills and remained on leave till date except for period from 13-1-1982 to 23-7-1982 whereas, his application for leave was only up to 31-5-1982. Both these alleged fictitious bills are also missing from the office. Shri R. C. Kansal is having his residence at House No. 183 Harinder Nagar near D.L.F. Colony, Patiala, Request was made for taking appropriate action which also included arrest of Shri R. C. Kansal accused.
5. During the investigation it transpired that R. C. Kansal, accused made fictitious entries in the relevant (MTC) register concerning payment of Rs, 1,16,903 which after deduction of Income-tax, net amount payable was shown as Rs. 1,14,563/-. R. C. Kansal accused is said to have initiated the relevant entries in the register and put the same before Shri A. L. Vohra (the then Assistant Manager Accounts). The corresponding entry is said to have been made by R. C. Kansal in the aforesaid register. Shri G. S. Turney accused is said to have fraudulently issued a cheque under his signatures in favour of Harbans Lal, Handling and Transporting Contractor, Bhadson (For short 'HTC') without verifying bill submitted by Harbans Lal H.T.C. Bhadson, Demand draft of Rs. 1,11,375/- was received from the State Bank of Patiala by Balwinder Singh cashier in favour of Harbans Lal HTC and he handed over the draft like the previous one to R. C. Kansal accused without any authority. R. C. Kansal is said to have signed as Har Lal HTC Bhadson in token of having received the draft which was deposited in the fictitious account of Harban Lal opened by Gurmail Chand accused. Out of the said account an amount of Rs. 1,10,000/- was withdrawn by Gur Chand accused, Gurmail Chand accused kept Rs. 55,000/-was him and the remaining amount is said to have been paid Shri R. C. Kansal accused. Out of the amount received R. C. Kansal is said to have paid Rs. 20,000/ - to Jeet Singh accused. Anil Kumar Aggarwal accused is said to have withdrawn an amount of Rs. 1600/- from the aforesaid account on a cheque alleged to have been signed by Gurmail Chand as Harbans Lal. Balwinder Singh accused was paid Rs. 5600/- out of the said amount. It has come in evidence that Gurmail Chand accused also opened an account in the name of Harbans Lal in the Oriental Bank of Commerce, at Patiala and the balance amount in his account at Nabha was transferred to Patiala. Shri S. K. Kansal, accused introduced Gurmail Chand as Harbans Lal and that S. K. Kansal had withdrawn an amount of Rs. 5000/- from the aforesaid account on a cheque issued by Gurmail Chand who, however, signed the form as Harbans Lal. It was also alleged that Harbans Lal HTC Bhadson had neither submitted any bill for the aforesaid amount, nor, he had received any such amount and that he had no work slip with him issued by the Assistant Manager F.C.I. Bhadson. After completion of the investigation, all the nine accused were challenged. Out of them G. S. Turney, Jeet Singh, K. C. Kansal, Gurmail Chand, S. K. Kansal accused were convicted and sentenced as stated earlier, whereas, Balwinder Singh and Anil Kumar Aggarwal were acquitted by the trial Court. N. K. Sood and A. L. Vohra accused were however discharged.
6. The learned counsel for the parties were heard at length and the record of the trial Court was carefully perused.
7. According to the prosecution case aforesaid nine accused namely, G. S. Turney, Jeet Singh, A. L. Vohra, N. K. Sood, R. C. Kansal, Balwinder Singh, S. K. Kansal, Anil Kumar Aggarwal, and Gurmail Chand who were challaned in this case entered into a criminal conspiracy and defrauded Food Corporation of India to the tune of Rs. 2,25,938/- by forging two bills one for Rs. 1,14,563 dated 4-9-1981 and the other for Rs. 1,11,375/- dated 26-10-1981 for whose payment bank drafts were issued by the Food Corporation of India, which, were encashed by Gurmail Chand accused by impersonating at Harbans Lal According to the prosecution Harbans Lal PW 27 was working as contractor for transporting stock of food grains on behalf of Food Corporation of India, Bhadson to Nabha and submitted his bills through Assistant Manager Depo Bhadson to the District Office, Food Corporation of India Patiala and the latter after proper scrutiny used to pass such bills for pay merit. The two bills on the basis of which the aforesaid two bank demand drafts were issued by the Food Corporation of India and payments were allegedly received by Gurmail Chand accused (who, is said to have impersonated as Harbans Lal PW before the Bank authorities) were, neither, traceable, nor any legal, cogent or reliable evidence on the record has been produced as to how such bills were actually passed by the District Office, Food Corporation of India, Patiala. The prosecution version is to the effect that Gurmail Chand accused submitted these forged bills while impersonating as Harbans Lal HTC Bhadson, and, Gurmail Chand in conspiracy with his co-accused R. C. Kansal and office of the State Bank of Patiala at Nabha opened the new account by posing himself as Harbans Lal, and deposit Rs. 500/- as initial deposit. The aforesaid two bank drafts which were payee's account drafts were got credited in the aforesaid newly opened account. Therefore Gurmail Chand while impersonating as Harbans Lal PW first deposited aforesaid two bank drafts in the payee's account in the name of Harbans Lal. Later on, while impersonating as Harbans Lal the said accused withdrew an amount of Rs. 1,10,000/- on 7-9-1981 and withdrew similar amount from the aforesaid account of Harbans Lal PW at a later stage.
8. In order to prove its case, the prosecution has relied upon the confessional statement said to have been made by R. C. Kansal accused before Mrs. Sudershan Modi, Special Judicial Magistrate, who, incidentally was not examined as a witness by the prosecution and the confessional statement Ex. PW 29/6 was merely tendered in evidence in the trial Court. As such no opportunity whatsover has been granted to the accused to cross-examine the Special Judicial Magistrate, who, is said to have recorded the confessional statement of R. C. Kansal accused. It is also pertinent to note that before recording the statement of R. C. Kansal accused under Section 164 of the Code of Criminal Procedure, the Magistrate did not specifically warn R. C. Kansal accused that he was not bound to make a confession. On this aspect the only question asked from R. C. Kansal accused was that the statement which he was going to (sic) offer could also be used against him. Only after recording the confessional statement the Special Judicial Magistrate had appended a certificate that she had explained to R. C. Kansal (accused) that he was not bound to make a statement and that if he does so, any statement he may make, may, be used against him. It is true that while recording the said statement the Magistrate has directed Inspector K. L. Bansal of C.B.I. and S. K. Gupta, Public Prosecutor to go out. However, the Magistrate did not specifically mention as to how long after the aforesaid officials were sent out from the Court room, the statement of R. C. Kansal was recorded. Nor there is any specific note that the accused was given sufficient time after the police officer had left the Court room, to recollect, think and regain his composure in order to make his confessional statement voluntarily, and, without undue influence of the police. Besides R. C. Kansal accused retracted his confession. In his statement under Section 313 of the Code of Criminal Procedure when questioned on this aspect of the case R. C. Kansal accused admitted that he made a confessional statement before the Special Judicial Magistrate. He, however, pleaded that the statement was made under police pressure. Application of R. C. Kansal accused for becoming approver in this case was dismissed by the trial Court vide its order dated 7th August, 1985 and the said order was upheld by this Court vide its order dated 24-2-1986. In view of the authority of the apex Court in State of Uttar Pradesh v. Botta Singh, : 1979CriLJ466 , the retracted confession can be acted upon only if substantially corroborated by the independent evidence, which is lacking in this case.
9. Karanail Singh A.G. II F.C.I. while appearing as PW 25 deposed that he remained posted in the Accounts Section since 1978 at F.C.I. office Patiala; that in June, 1982 while preparing Income-tax statement it came to his notice that there were certain discrepancies in the entries concerning Harbans Lal in the two registers (H.T.C.) and BE IV register). R. C. Kansal also admitted that he had changed two entries and initialled the same. It is also in evidence that Jeet Singh appellant then brought these discrepancies to the notice of G. S. Turney District Manager who directed both Jeet Singh and A. L. Vohra accused to make an enquiry. Both of them submitted their report Ex. PW 24/20 on 19-6-1982. It is significant to note that both G. S. Turney and Jeet Singh appellants were instrumental in getting the first information report registered in this case, wherein, it was specifically mentioned that R. C. Kansal and other accused had dealt with the passing of both the bills on the basis of which bank drafts in question were issued, and, that one of the bank drafts for Rs. 1,11,375/- was directly handed over by Balvinder Singh Cashier to R. C. Kansal accused. It was also mentioned by G. S. Turney accused in his letter addressed to the Senior Regional Manager, F.C.I. Ex. PW 24/24 on the basis whereof first information report was subsequently registered, that letters obtained from the State Bank of Patiala at Nabha where the withdrawal had taken place and subsequent transfer of amount from Nabha to Oriental Bank at Patiala clearly indicate that R. C. Kansal, who, remained on leave after these transactions had taken place and still had not joined the duty, and, made cuttings in the control register of the Account Branch, was the main culprit behind the conspiracy. Immediate suspension of R. C. Kansal and Balwinder Singh Cashier was also recommended and Jeet Singh appellant was deputed to make a thorough check in this regard. In his confessional statement R. C. Kansal in order to exonerate him had tried to pass on the blame to G. S. Turney and Jeet Singh appellants as well. The confessional statement made by R. C. Kansal accused cannot be legally used against all the appellants and their co-accused without any substantial corroboration, which is lacking in this case.
10. Apart from the confessional statement alleged to have been made by R. C. Kansal accused Ex. PW 29/6 there is no reliable evidence on the record that either G. S. Turney or Jeet Singh appellants, were paid Rs. 20,000/- each by R. C. Kansal accused out of the amount which R. C. Kansal accused is said to have received after the encashment of the two Bank drafts referred to above. Thus mere allegations in the confessional statement without any substantial corroboration cannot be legally used as an incriminating circumstance against G.S. Turney and Jeet Singh appellants. Even otherwise, it is difficult to believe that G. S. Turney, District Manager or Jeet Singh Assistant Manager would take the risk of losing their jobs and face criminal prosecution for passing or signing the bills and cheques for a sum of Rs. 2,25,938/- merely to get Rs. 20,000/-each in return as per version given in the aforesaid conessional statement. It is also pertinent to note that R. C. Kansal was produced before the Special Judicial Magistrate by Shri K. L. Bansal, Inspector C.B.I. for recording his statement under Section 164 of the Code of Criminal Procedure. It is further relevant to mention here that Inspector K. L. Bansal, who is the main Investigating officer in this case has not been examined by the prosecution.
11. Admittedly the bills on the basis of which two bank drafts in question were issued are missing and have not been traced or produced on the record by the prosecution. As such the question whether G. S. Turney and Jeet Singh appellants passed payment orders on the basis of actual bills supported by cash vouchers or had signed the cheques without any bills or vouchers produced before them assum significance. All these circumstances clearly show that confessional statement Ex. PW 29/6 made by R. C. Kansal accused is not a true and voluntary and it would not be safe to place any reliance on the said confessional statement as far as G. S. Turney and Jeet Singh appellants are concerned.
12. As far as G.S. Turney appellant is concerned he had signed the cheque Ex. P.W. 10/F in the sum of Rs. 2,73,900.66 on the basis of six bills sanctioned by him including an amount of Rs. 1,14,563/ - relating to the bank draft. Normally it was for Jeet Singh appellant as Assistant Manager (Accounts) to sign the cheques. In his absence the aforesaid cheques including the one relating to an amount of Rs. 1,14,563/- were signed on 4-9-1989 by G. S. Turney appellant, as Jeet Singh his co-appellant was on leave that day and Shri A. L. Vohra accused had not been authorised by the Senior Regional Manager F.C.I. to sign the cheques, which, were required to be drawn on behalf of the F.C.I. for payment. The cheque was signed by G. S. Turney on the basis of the bills which were prepared by R. C. Kansal accused who also made entries with regard to the said bills in the relevant HTC register. The bills were initially checked by N. K. Kapoor, accused who sent the same to A. L. Vohra accused father was working as Assistant Manager (Accounts). Thereafter the bills in question were put up before G. S. Turney, who passed the bills. The cheque in question was prepared by Balwinder Singh Cashier and G. S. Turney signed the said cheque. After the draft in question was prepared by Balwinder Singh Cashier, he handed over the same to R. C. Kansal accused instead of handing over the same to Harbans Lal H.T.C. in whose favour the said draft was prepared.
13. As far as second bank draft Ex. PW 11/B for a sum of Rs. 1,11,375/- in favour of Harbans Lal is concerned the same was prepared on the basis of the cheque signed by Jeet Singh appellant It is pertinent to note that the bills in respect of both the aforesaid bank drafts were entered in the relevant register by R. C. Kansal accused. After further checking by the lower staff the bill was submitted to G. S. Turrney appellant through Jeet Singh appellant, both of whom acted in good faith and the sanction order was passed by G. S. Turney appellant on the basis of (he sanction order cheque Ex. PW 11/B was passed on the basis of which later bank draft was prepared. As already discussed earlier the two bills could not be traced and as such could not be produced by the prosecution. The entries in respect of the bills in question, however, appear in the relevant register. There is no legal, cogent or reliable evidence on the record that both G. S. Turney and Jeet Singh appellants were either in league with their co-accused, or, these two appellants had entered into criminal conspiracy with their other co-accused including R. C. Kansal in committing the illegal acts of cheating and forgery and receiving illegal gratification for which they have been charged. Rather from the evidence on the record it seems quite probable that both G. S. Turney and Jeet Singh acted in good faith while signing the cheques on the basis of which two bank drafts in question were prepared for payment to Harbans Lal contractor.
14. The next circumstance relied upon by the prosecution relates to payment of Rs. 70,000/-through demand draft Ex. PW8/8 in favour of Food Corporation of India which was sent through State Bank of India, Nangal after withdrawal of the said amount from the personal account of R. C. Kansal accused. In the absence of any legal, cogent or reliable evidence on the record that R. C. Kansal accused had received Rs. 70,000/- out of the illegal payment received by Gurmail Chand while impersonating as Harbans Lal, mere payment of the said amount referred to above cannot be legally used against the present appellants, in order to bring home charge against them for which they have been convicted and sentenced.
15. All these circumstances taken together cast grave doubt about the prosecution version that both G. S. Turney and Jeet Singh appellants had entered into criminal conspiracy for committing the offence for which they have been charged.
16. As far as prosecution case against Gurmail Chand appellant is concerned, he is said to have opened an account with State Bank of Patiala at Nabha in the name of Harbans Lal wherein, the amount of drafts in question one for Rs. 1,14,563 Ex. PW 11/A and the other for Rs. 1,11,375/- EX. PW 11/B were deposited in the name of Harbans Lal, and were subsequently withdrawn by Gurmail Chand. Latter by impersonating and signing as Harbans Lal he was able to withdraw or transfer the said amount to another Bank account of Harbans Lal with State Bank of Patiala, at Patiala. In order to bring home charge against Gurmail Chand appellant, it was necessary for the prosecution to prove firstly that the account in the State Bank of Patiala at Nabha in the name of Harbans Lal was opened by Gurmail Chand appellant by impersonating and signing as Harbans Lal on the documents, necessary for opening such account; secondly that the amount of the bank drafts was withdrawn from State Bank of Patiala by Gurmail Chand appellant while impersonating as Harbans Lal and by appending his signatures as that of Harbans Lal and thirdly that none of the documents either for opening the account in the State Bank of Patiala at Nabha or signatures purporting to be of Harbans Lal showing withdrawal amount of the Bank drafts were not actually in the hand writing or under signatures of Harbans Lal, H.T.C.
17. The fact regarding opening of Bank account at Slate Bank of Patiala at Nabha by Gurmail Chand appellant by impersonating as Harbans Lal is sought to be proved from the testimony of Hem Raj PW 12. Later deposed that while he was posted as clerk in State Bank of Patiala, at Nabha, in September, 1981, R.C. Kansal accused along with another person whom he represented as Harbans Lal came to him and told him that Harbans Lal wanted to open an account in order to collect the drafts and that Harbans Lal put his signatures on the account opening form Ex. PW 12/A. He then filled in pay-in-slip Ex. PW 12/B for Rs. 500/- at the asking of R.C. Kansal in the name of Harbans Lal. On the asking of R.C. Kansal accused he also filled in the pay-in-slip Ex. PW 12/C in the name of Harbans Lal for depositing the bank draft in the sum of Rs. 1,14,563/-. Thereafter he gave aforesaid pay-in-slips and the account opening form to R.C. Kansal accused. In his cross-examination, this witness admitted that he neither attested the signatures of Harbans Lal when the latter signed on Ex. PW 12/A, nor, he got his specimen signatures on the specimen/ signature card. This witness has merely filled in the account opening form. Admittedly words 'HTC' after the name of Harbans Lal were not written in his hand and seems to have been introduced at a later stage. The learned trial Court had disbelieved this witness on the ground that R. C. Kansal accused had accompanied him when the account in the State Bank of Patiala at Nabha was opened on the basis of account opening form Ex. PW 12/A and observed that the witness seems to have made the statement under pressure.
18. Reliance in this regard was also placed on the testimony of Santokh Singh PW 9, Assistant Grade-I in the F.C.I. Regional Office in whose presence Gurmail Chand appellant gave his specimen signature Ex. PW9/7 to PW9/16 to Inspector K. L. Bansal of C.B.I. In cross-examination Santokh Singh PW 9 admitted that the specimen writings Ex. PW9/7 to PW9/15 do not bear the signature of Gurmail Chand. He further admitted that K. L. Bansal Inspector C.B.I. had told him that the person whose specimen signatures were to be taken was Gurmail Chand. It is quite obvious that Gurmail Chand was not personally known to Santokh Singh PW. The learned trial Court has also not relied upon the statement of Santokh Singh PW 9.
19. PW 15 R. N. Atlas, Bank Manager, who was posted in State Bank of Patiala at Nabha in the year 1981-82 deposed that account opening form Ex. PW 12/A in the name of Harbans Lal was allowed by him, in the capacity as a Bank Manager, and, that he had received specimen signatures card Ex. PW 15/ A verified by Kanwaljit Singh Wadhwan on the identification of partner of Durga Rice Mills. He also deposed that Harbans Lal was not personally known to him. According to this witness, the account opener had deposited draft Ex. PW 11/A in his account vide slip Ex. PW 12/C and Rs. 1,10,000/-was withdrawn from the said account by the account opener on the same day the draft was deposited. This witness admitted in his cross-examination that the account opening form Ex. PW 12./A was received by him when it was already filled and signed and the said form was not got signed from Harbans Lal in his presence. On the other hand Kanwaljit Wadhwan while appearing as PW 20 denied that Harbans Lal was known to him previously and that he had attested the signatures of Harbans Lal on specimen signature card, Ex. PW 15/A after the specimen signature card along with application duly filled in were brought before him by R. C. Kansal and Anil Kumar Aggarwal (accused). R. C. Kansal had introduced the person who opened the account as Harbans Lal. Om Prakash Arora PW 22, had introduced Harbans Lal on the application form. This aspect of the case is admitted by Om Prakash PW 22. This witness, however, clarified that he had made introduction in the bank itself on the form being shown to him by R. C. Kansal accused, and that Harbans Lal did not sign in his presence. The Trial Court had itself disbelieved these witnesses concerning the presence of R. C. Kansal and Anil Kumar Aggarwal at the time when the aforesaid account was opened in the name of Harbans Lal. No implicit reliance can be placed on him.
20. The second draft in the sum of Rupees 1,11,375/- Ex. PW11/B which is also exhibited as Ex. PW15/E in the name of Harbans Lal HTC was also got deposited with the State Bank of Patiala, at Nabha on 28-10-1981. As the said draft was from Bhadson branch, the same was sent there for collection. After receipt of advice from Bhadson the amount was credited in the aforesaid account. The account holder issued cheque of Rs. 1,10,000/- as self and took that amount from the bank on 2-11-1981.
21. It seems quite obvious that none of the concerned bank officials is prepared to own the responsibility concerning the identity of the individual, who, actually opensed the said account. From the oral evidence referred to above it cannot be reasonably inferred that the aforesaid bank accounts were actually opened by Gurmail Chand appellant or after two bank drafts Ex. PW11/A and PW 11/B were deposited, the withdrawal therefrom was made by issuance of cheques by Gurmail Chand while impersonating as Harbans Lal.
22. The prosecution has also relied upon the report of the Hand-writing expert Ex. PW29/4 in order to prove that actual Gurmail Chand appellant had opened the bank account at State Bank of Patiala, at Nabha and State Bank of Patiala at Patiala in the name of Harbans Lal PW and by impersonating as Harbans Lal, Gurmail Chand appellant was able to withdraw the amount of the two bank drafts Ex. PW 11/A and PW11/B to the tune of Rupees 2,25,938/-. According to the said report the person who wrote sample writings/signatures Section 76 to Section 83, Section 84, Section 85, A-1 to A12 did write the English and Hindi writing marked Q-54, Q-54A, Q-55 to Q-77 and Q-72 to Q-87. Out of these, signatures of Harbans Lal purporting to have been made by Gurmail Chand are on Q-54, Q-54A, Q-54, Q-55 to Q-70 and Q-87 and are in Hindi whereas, the sample Hindi writings and the signatures are Section 76 to Section 83. Admittedly the specimen signatures of Gurmail Chand appellant while appending his signatures as Harbans Lal are Ex. PW9/7 to PW9/13 whereas, signatures of Gurmail Chand in his own name are Ex. PW9/14 and PW9/ 16 are in English. It is pertinent to note that all these specimen signatures of Gurmail Chand were taken in the presence of Santokh Singh PW 9 and that of Inderjit Singh, who has not been produced as a witness in this case. As already discussed earlier Santokh Singh PW 9 has specifically stated that the specimen writings Ex. PW9/7 to PW9/15 do not bear the signatures of Gurmail Chand and that Inspector K. L. Bansal of C.B.I. had held him that the person whose signatures were to be taken was Gurmail Chand. It is quite patent that Gurmail Chand accused was not personally known to Santokh Singh PW 9. It is also significant to note that Inspector K. L. Bansal of C.B.I. who took his specimens signatures Ex. PW9/7 to PW9/16 and was the main investigator in this case has not been produced by the prosecution. Mere fact that the trial Court had closed the prosecution evidence by its order would not absolve the prosecution from examining the main Investigator in this case. From the material available on the record, it seems that the prosecution neither went in revision against the said order, nor, it made any further request to the trial Court to examine Inspector K. L. Bansal of C.B.I. at any subsequent stage. It is also pertinent to note that Investigating agency in this case made no efforts to get the specimen signatures of Gurmail Chand before any Magistrate. Rather Inspector K. L. Bansal of C.B.I. himself took the specimen signatures in question before Santokh Singh PW 9 and Inderjit Singh, two employees of Regional Office of the Food Corporation of India.
23. Out of other signatures A-1 to A-12 alleged to be that of Gurmail Chand accused. A-1 to A-4 are on the specimen signature card to Bank account with Punjab National Bank and A-5, A-6-, A-9 to A-12 on the agreement are of Gurmail Chand accused in English, whereas, the disputed signatures purporting to have been made by Gurmail Chand while impersonating as Harbans Lal relate to the Bank accounts with State Bank of Patiala at Nabha, where, the two drafts in question were deposited and subsequently withdrawn are in Hindi only. Mere fact that Gurmail Chand accused deposited Rs. 53,000/- on 10-9-1981 in his personal bank account and another Rs. 53,000/- on 2-11 -1981 would not be sufficient to bring home the offence for which he has been charged.
24. Taking all these factors into consideration the report of the Hand-writing expert EX. PW29/4 referred to above does not prove beyond reasonable doubt that Gurmail Chand accused while impersonating as Harbans Lal committed the offence of cheating and forgery, and, other offences for which he has been charged.
25. For the foregoing reasons, I am of the considered view that the prosecution has failed to bring home the charges framed against G. S. Turney, Jeet Singh and Gurmail Chand appellants beyond reasonable doubt. I thus hereby set aside the order of conviction and sentence passed against them by the trial Court and hereby acquit them of the charges framed against them. All the three appeals are accordingly allowed.