P.M. NAZAR Vs. C.B.I.

JUDGEMENT

(1.) THE appellant herein is the 2nd accused in C.C. No. 5/1997 of the Special Judge,(SPE/CBI) -I, Ernakulam. The 1st accused in this case was the Assistant Manager of the Canannore branch of the Syndicate Bank, in 1981 -82. The appellant herein was only a customer of the said bank, having a Savings Bank account. When the Deputy Inspector in the inspection Wing of the Mysore Divisional Office of the Syndicate Bank made an inspection in the Canannore branch of the Syndicate Bank in 1990, he detected some instances of appropriation of amounts by the then Assistant Manager, by crediting some amounts to the Saving Bank account of the appellant herein under false and fabricated vouchers. Six such instances were detected by the Inspection Wing. Some such instances of misappropriation through the Savings Bank account of one Ashok Prabhu and one Mohammed Farooq were also detected by the Inspection Wing. On the basis of the report of the Deputy Inspector, the Kochi unit of the Central Bureau of Investigation (CBI) registered a crime against the Assistant Manager, Abu Muhammed, and the appellant herein as accused Nos. 1 and 2, and also against the said Mohammed Farooq, as the 3rd accused, as crime No. RC19(A)/91 under Section 120B read with 420 and 477A IPC, and also under Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947 (for short, 'the P.C. Act'). After investigation, the CBI submitted final report against the 1st and 2nd accused in the crime, without stating anything about the 3rd accused in the crime and without explaining what happened to the proceeding against the 3rd accused. Pending the prosecution the 1st accused (Abu Muhammed) absconded, and thus obstructed the trial. The 2nd accused (appellant herein) faced trial and he pleaded not guilty to the charge framed against him by the learned trial Judge under Section 120B and 420 IPC read with Section 5(1)(d) and 5(2) of the P.C. Act. Prosecution was brought against the appellant herein, and a charge was also framed against him by the trial court, on the allegation that the 1st accused (Abu Muhammed) appropriated amounts on different occasions through the Savings Bank Account of the 2nd accused with his knowledge and consent, as part of a conspiracy to cheat the bank, and thus the 2nd accused, in all ways possible, helped the 1st accused, or facilitated the commission of offence by the 1st accused.

(2.) THE prosecution examined eight witnesses in the trial court, and also marked Exts. P1 to P28 documents. When examined under Section 313 Cr.P.C., the appellant herein (2nd accused) took a definite defence, that he was not in fact aware of any dishonest intention or malpractice on the part of the 1st accused (Manager), that he had sold foreign goods on many occasions to the Bank Manager(1st accused) as a foreign goods vendor, he used to sell such goods in houses and offices, the Manager would not make payment of the price of goods directly, but would make payment through his bank account, he was not in any manner a party to the mischief done by the Manager, and he was not aware of any such malicious intention or dishonest intention on the part of the Manager. Thus, the 2nd accused practically admitted that he had received amounts through his bank account, credited by the 1st accused on different occasions, and he withdrew it with the belief and knowledge that the amount was credited by the 1st accused as the price of the goods purchased from him. The appellant also examined two witnesses on his side and marked Exts. D1 to D25 documents in defence.

(3.) THE points for decision in this appeal are;