Judgment:
Madan Mohan Punchhi, J.
1.The appellant, who in the Courts below was described as A-3, is the lone one out of the eight, who stands convicted for offences punishable under Sections 120B, 409 and 471 of the Indian Penal Code and under Sections 5(1)(c) and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, whereunder he has been variously sentenced as disclosed in the judgment under appeal. Out of the original arraigned accused, A-1, A-6, A-7 and A-8 were acquitted by the Trial Court whereas A-2, A-4 and A-5 were acquitted by the High Court. The conviction of the appellant was maintained by the High Court by recording the following finding:.Of course, in this case there is no direct evidence to prove that A-3 is a party to the conspiracy. It depends upon the circumstantial evidence. As already observed, there is no possibility of committing this fraud without the involvement of A-3 as he was the Head of this Section. The various omission on his part further support the view that he is a party to the conspiracy. If he were to be innocent, he would not have been silent spectator when T. Ts. which were received at the rate of one for every week in the first month and the amounts of the same were credited to S. B. A/c No. 2246 and when that account-holder was allowed to withdraw the same on the following dates, without addressing the purported sender bank, when neither mail confirmation nor the branch cheque is received especially when the account-holder was not an introduced customer. It is true that there is evidence to show that all the Manual of Instructions will not be scrupulously followed; but it is stated that it will be at the risk of the concerned office only. It does mean that in regard to the new customers as there will be reason to doubt the genuineness of the transaction, the instructions must be followed scrupulously. But in this case when the branch cheques were received for all the 7 T.Ts. at a time when Ex. P. 80 discloses that there is a discrepancy in regard to the serial number and when the enclosed letter to Ex. P. 27 branch cheque corresponding to Ex. P. 80 discloses serial number as one which is consistent with the serial number arrived at by decoding as Ex. P. 80, A-3 if he were not a party to the conspiracy, would have certainly addressed the Madras Branch about the genuineness of all these T. Ts. Hence, for the various circumstances, I agree with the finding of the learned trial Judge that A-3 is a party to the conspiracy and it is proved by the prosecution beyond reasonable doubt.
2. The High Court has also found that the appellant was the Head of the Telegraph Transfer Section of the Secunderabad Branch of the UCO Bank, and that with his active co-operation the fraud had materialised thereby causing loss of money to the Bank entrusted to the management of the branch. Since A-3 was one of the officers handling the affairs of the branch office and as many as 19 telegraph transfers in question were found not to be genuine, the appellant was held guilty for being a party to the conspiracy. The afore varied convictions and sentences of the appellant were confirmed giving rise to this appeal.
3. As is evident, the guilt of the appellant has been spelled out from his being the Head of the Telegraph Transfer Section on the basis that he was a co-conspirator. Before a person can be convicted constructively with the aid of Section 120B, I.P.C. the requirement of Section 120A, I.P.C. defining 'criminal conspiracy' would have to be met. That provision reads as follows:
120-A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
4. There has to be another with whom the accused would get in communion to conspire for the commission of an offence. Here the seven accused, who are so charged for being in conspiracy with the appellant, have been acquitted, as the case may be, either by the trial Court or the High Court. In these circumstances, it is legally not feasible or possible to maintain the conviction of the appellant for offence punishable under Section 120B, I.P.C. for the appellant was never charged of having entered into a criminal conspiracy to commit the said offences in conspiracy with persons other than those named persons who have been acquitted. To maintain the conviction of the appellant, merely because he was in charge of the Telegraph Transfer Section, on such premise, would therefore be difficult, though his responsibility otherwise to the amount in question cannot be minimized. Leaving apart that aspect, it is not to be forgotten that we have only to determine herein the guilt of the appellant. On the failing of the charge under Section 120B, I.P.C. the other offences lose their roots, as without the aid of Section 120B, I.P.C., it cannot be spelled out or deduced even though the appellant stands directly charged for specific offences, with and without the applicability of Section 120B, I.P.C. We have not been made wiser by either side as to wherefrom can we spell Out the complicity of the appellant to the loss of money which the Bank has suffered on account of the fictitious and forged telegraph transfers, more so, in the absence of any person being charged of the offences form the mailing branch at Madras. In this situation, we have no option but to allow the appeal, set aside the convictions and sentences of the appellant and extend to him the benefit of doubt.
Ordered accordingly.