PARIMAL RAMNATH DHOLAKIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 24-1-1992 passed by learned Special Judge in Sessions Case no.75 ot 1989 whereby the appellant- original accused -Parimal Ramnath Dholakia was convicted for the offence under Sections 409, 477-A of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act. He was sentenced to suffer R.I. for five years and fine of Rs.90,000/-, in default, R.I. for one year in respect of the offence under Section 409 of the Indian Penal Code. He was imposed fine of Rs.2000/-, in default R.I. for three months in respect of the offence under Section 477-A of the Indian Penal Code and in respect of the offence under Section 5(2) of the Prevention of Corruption Act, he was sentenced to suffer R.I. for two years and a fine of Rs.5000/-, in default, R.I. for six months.

(2.) The case of the prosecution, in brief, is that the appellant was posted as a Clerk- Cum-Cashier in Bank of Baroda, Digvijay Plot Branch, Jamnagar, during the period 1987-88. It is alleged by the prosecution that on 6-11-1987 one Kasturben Jhutalal Shah holding Savings Bank Account no. 333 with a view to deposit a sum of Rs. 10,000/- in cash went to the said Branch of Bank of Baroda and that the appellant- accused who was Cashier at the relevant time accepted the said amount in cash from Kasturben along with the paying-in-slip and after stamping the counter-foil and putting his initials thereon, he returned the counterfoil to her and accordingly entry was also made by the accused in her pass book showing credit of Rs. 10,000/-. in cash. According to the prosecution, the appellant- accused then made entry in the R-37 Register showing receipt of Rs.10,000/- as also in the Savings Bank Ledger Folio of account no.333 of the said Kasturben, however, the accused then with a dishonest intention to misappropriate the amount had scored out these entries. It is further the case of the prosecution that in a similar fashion the appellant accused had misappropriated an amount of Rs.37,500/- which was deposited in cash by Ramabhai Mashribhai Keshwala holder of Savings Account no.8026 on 1-12-1987. It is alleged by the prosecution that again on 11-12-1987 one Muktaben Bhagwanjibhai holding Savings Bank Account no. 3560 visited the said Branch to deposit a sum of Rs. 20,000/- and that the appellant-accused who was sitting in the cash counter accepted Rs.20,000/- According to the prosecution, this time the accused only made entry showing credit of Rs.20,000/-in her passbook in his own handwriting but failed to make entries in the R-37 Register and Ledger Sheet. It is alleged by the prosecution that again on 3-2-1988 one Kanji Naran Songara holding Savings Bank Account no. 4030 visited the said Branch of the bank to deposit Rs. 10,000/- in cash and that the appellant-accused who was the Cashier at the relevant time accepted the said amount along with the paying-in-slip no. 425413, stamped the counterfoil, put his initials thereon and handed over the counterfoil to Kanji Naran Songara who in turn gave his passbook to the appellant- accused for making entry, and accordingly, the appellant-accused also made an entry in the passbook showing credit of Rs. 10,000/-. According to the prosecution, the appellant accused although made an entry in this regard in the R-37 Register, he thereafter, scored out the said entry. It is further alleged that the said Kanji Naran again visited the said Branch of the bank to deposit Rs.5000/- in cash on 11-2-1988 and that the appellant accused accepted the amount of Rs.5000/-in cash along with the paying-in-slip, put his initials on the counterfoil and returned the same to Kanji Naran. The accused also made entry in the passbook of Kanji Naran showing credit of Rs.5000/- on 11-2-1988, but did not make any entry to that effect in the R-37 Register. It is further alleged by the prosecution that on 3-2-1988 one Rajnikant Amrutlal Zinjuwadia holding a joint saving Bank Account no. 1838 visited the bank to deposit Rs.30,000/- and that the appellant -accused had misappropriated amount in the same manner as that of Kanji Naran Songara on 3-2-1988 as stated above. It is also alleged by the prosecution that on 4-4-1988 one Amrutlal Desabhai Zinjuwadia, father of the said Rajnikant holding joint S.B.Account no.1838 visited the said Branch of the bank to withdraw an amount of Rs. 10,000/- for which he gave a cheque dated 4-4-1988 at the counter and received a token against the same from the counter clerk. According to the prosecution, the appellant-accused having already misappropriated an amount of Rs.30,000/- in respect of account no. 1838 on 3-2-1988 was watching this transaction and since he knew that sufficient balance was not there in that account, the appellant-accused himself deposited an amount of Rs. 10,000/- in the said account by preparing paying-in-slip and also making an entry of Rs. 10,000/- in R-37 Register in his own handwriting, and accordingly, the appellant accused had made debit as well as credit entries in the account of Zinjuwadia. Thus, according to the prosecution, the appellant-accused had not only without any authorization made payment of Rs. 10,000/- from his own counter to Zinjuwadia but also made an entry in the R-37 Register to the effect that he had advanced an amount of Rs. 10,000/- to the Chief Cashier who was at the relevant time the paying cashier. It is also alleged by the prosecution that in the same manner in which the appellant-accused had misappropriated the amount of account holder no. 333 Kasturben, as stated above, the appellant-accused had misappropriated an amount of Rs. 10,000/- in respect of Bhagwanji Punja Chanderia holder of S.B.Account no.5388 on 4-4-1988. It is thus the case of the prosecution that the appellant-accused by these acts with a dishonest intention to cheat the customers of the bank and the bank itself had indulged into falsification of the accounts of the bank, and thereby misappropriated an amount of Rs. 1,22,500/-by abusing his official position as a public servant. In connection with the aforesaid offence, Police Inspector, C.B.I, Ahmedabad Branch at the relevant time registered F.I.R on 18-8-1988 at 15.00 hours. During investigation, the Investigating Officer carried out the necessary formalities like search of the house of the appellant-accused by taking out search warrant, seizure of documents from the house of the accused. obtained specimen handwritings of the accused on different dates, recorded statement of the customers-account holders and seized the counter-foils of the paying-in-slip, pass book etc., recorded the statement of various bank personnel. Thereafter, the Investigating Officer forwarded the seized documents including a list of questioned documents as also a list of specimen handwritings of the appellant- accused to the Superintendent of Police who sent the same to the handwriting experts for opinion and on receipt of the opinion dated 28-8-1989 placed the same on the record of the case. On completion of investigation and obtaining sanction for prosecution as required, challan was submitted against the appellant-accused before the learned Special Judge, Court no.3, Ahmedabad. The learned Special Judge framed the charge Exh. 10 and read over and explained the charges under Sections 409, 477-A of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act on 20-2-1991. The appellant-accused denied his indictment and claimed trial.

(3.) To prove the culpability of the appellant-accused, the prosecution examined as many as 20 witnesses , namely, PW 1 B.N.Menon at Exh. 14, PW 2 Harising Dhanak (Panch) at Exh. 15, PW 3 G.B. Rammurti (Sanctioning Authority) at Exh. 19, PW 4 Dhansukhlal Harekrushna Thakar (Chief Cashier) at Exh.23, PW 5 Rajnikant Amrutlal Zinjuwadia, Account holder, at Exh.50, PW 6 Kanji Naranbhai, Account holder at Exh.51, PW 7 Rambhai Mashribhai Keshwala, Account holder at Exh.52, PW 8 Bhagwanji Punjabhai, Account holder at Exh.53, PW 9 Vinodbhai Ramanlal Shah, Panch at Exh.54, PW 10 Narsinhbhai Govindbhai (Panch) at Exh.56, PW 11 Arvindbhai Tulsidas Ganatra Ledger Keeper at Exh.58, PW 12 Devikumar Vanmalidas Mehta, Clerk-Cum-Cashier at Exh.64, PW 13 Keshavlal Madhavlal Kanjaria, Special Assistant in S. B. Department at Exh.65, PW 14 Amrutlal Zinjuwadia, Account holder, at Exh.68. PW 15 Muktaben Bhagwanji Surelia. Account holder at Exh.69, PW 16 Naradprasad Chimanlal Baria, Panch, at Exh.70, PW 17 Navinchandra Ranchhodbhai, Accountant nt Exh.72, PW 18 G.N. Chatrati, Handwriting Expert at Exh.83, PW 19 Kasturben Juthalal. Account holder at Exh.86, PW 20 Govindbhai Somabhai. Officer of the Bank., at Exh.87. PW 21 S.S.Shastri, Investigating Officer at Exh.92 and also produced documentary evidence vide list Exh.21 an page 163 of the compilation. Thereafter, the statement of the accused under Section 313 of the Criminal Procedure Code was recorded. The sum and substance of the father statement of the accused is that he had not misappropriated any amount and had not committed any offence, but had become the victim of politics in the bank and that he was falsely implicated in this crime, however, he had made certain admissions with regard to his specimen signatures, initials, etc.