VILAS LAXMAN NAIK Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Three employees of the State Bank of India, Camp Branch, Pune faced charges before the learned Chief Judicial Magistrate, Pune under section 120-B, 409 read with section 120-B and 477-A read with section 120-B of the Indian Penal Code. All of them were convicted by the learned Magistrate of offence under section 120-B Indian Penal Code. The present petitioner who was accused No. 1 before the Court was also convicted of offence under section 409 and section 477-A, Indian Penal Code. Since accused Nos. 2 and 3 are already acquitted by the Sessions Court and since even the present petitioner, accused No. 1, is being acquitted by me, it is unnecessary to mention the various 2 sentences imposed by the trial Court upon the various accused. Two appeals were filed by the three accused against the order of conviction and sentence. Appeal No. 38 of 1982 filed by original accused Nos. 2 and 3 was allowed by the learned Additional Sessions Judge holding that the offence of criminal conspiracy under section 120-B, I.P.C. was not established by the prosecution against them. Appeal No. 40 of 1982 filed by the present petitioner, accused No. 1, was, however, allowed by the learned Judge only partly, holding that the offence of criminal conspiracy under section 120- 8, I.P.C. was not established against the present petitioner end to that extent the order of conviction and sentence passed by the learned Magistrate against him was set aside. But so far as the order of conviction and sentence under section 409 and 477-A, I.P.C. was concerned, the learned Judge confirmed the trial Court's order in that behalf and dismissed the petitioners appeal to that extent. The present revision application filed by original accused No. 1 is directed against that part of the learned Additional Sessions Judge's order which confirms the order of conviction and sentence of the petitioner under sections 409 and 477-A, I.P.C.

(2.) As will be presently pointed out, the view taken by the learned Additional Sessions Judge is so basically erroneous that not only that the Court would have power to interfere with the same in its revisional jurisdiction but it would be a matter more or less of judicial obligation for the Court to do so. This is so because the error involved in the judgment of the learned Judge is not only an error of appreciation of evidence but is a basic error relating to administration of criminal law and the error partakes the character of a patent illegality. Interference in the order passed by the learned Judge is, therefore, called for even in my revisional jurisdiction.

(3.) A careful statement of facts alleged by the prosecution in the first instance and found by the courts below in the second Instance would be very much conducive to appreciation of the question involved in this petition. The three accused in the trial Court have been the employees of the State Bank of India and at the relevant time they were working in the Camp Branch at Pune. The offence is alleged to have taken place on or about 3-8-1977; in any event, it was detected on 3-8-1977. At that time, that is to say, round about 3-8-1977, the present petitioner had been working as a Receiving Cashier in the Bank. On 3-8-1977 he was required to work as a Paying Cashier at the behest of the Manager of the Bank. Accused Nos. 2 and 3 were admittedly working as Ledger Clerks in the Bank at all the relevant times. Admittedly, they were in charge of the tokens to be issued by the Bank to the customers who presented their cheques to the Bank for encashment. On the relevant date, 3-8-1977, the Manager had entrusted to both of them jointly tokens from Nos. 121 to 150. There is no dispute that so far as the entrustment of the tokens was concerned, the entrustment was not made separately to the two accused, accused Nos. 2 and 3, but jointly to both of them, meaning thereby that all the thirty tokens were entrusted to accused Nos. 2 and 3 together and not that 15 were given to one and the remaining 15 to the other. The Head Cashier of the Bank, at that time, was one Shri Limaye; Shri Peshave was working as the Dy. Head Cashier. Shri Karunakaran was the Manager of the Commercial and institution Division of the Bank at that time, whereas Shri Dharangaonkar was the Dy. Manager of the said commercial and Institution Division. The function of Shri Peshave was to supply the currency notes to the Paying Cashier. The power to authorise payment of cheques for amount exceeding Rs. 25,000.00 was held only by the Manager Shri Karunakaran and by the Dy. Manager. Shri Dharangaonkar. Counter No. 11 was a payment counter in the Bank. The work of the Paying Cashier in the Bank at that counter should have been performed on the said dated 3-8 1977, by the usual Paying Cashier Miss Parkhi. But at about 10 = 30 a.m on that date, said Miss Parkhi informed the Head Cashier Shri Limaye about her being unwell. On that account she wanted to be relieved of the work of the Paying Cashier for that day. The Bank starts at 11.00 a.m. for the transaction with the customers. Shri Limaye had, therefore, to make a frantic eleventh hour arrangement for deploying some person at the Paying Cashier's Counter No. 11. First, he requested the other two Cashiers Shri Vase and Shri Patwardhan. But both of them expressed their firm unwillingness to perform that work. Shri Limaye, therefore, requested the present petitioner to sit at Counter No. 11 for working as the Paying Cashier for the day. There is no dispute that even the present petitioner made no bones about the fact that he was not at all willing to perform that function and in order to avoid that work he even advanced some kind of reasons, almost an excuse, namely that his right wrist had been spraining and that, hence, it would be impossible for him to perform the "rigorous" work of counting of all those currency notes. Shri Limaye, therefore, had to coax him to accept the assignment for the day and after quite some hesitation, ultimately, the present petitioner agreed to work on the said Counter of the Paying Cashier for the day. What is stated above are the facts about which there exists no dispute. What is stated in the following Para 4 is, however, a matter of dispute. Hence, it will be best stated from the points of view of the prosecution as well as of the defence.