R K TONGIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition Under Section 482 Cr. P.C. has been filed by Shri R.K. Tongia for quashing the charges Under Sections 120B, 420, 467 and 471 I.P.C. framed against him by the learned Additional Chief Judicial Magistrate, (S.P.E.), Jaipur District, Jaipur.

(2.) SHRI P.D. Meena, Inspector of Police, C.B.I. Jaipur, filed a charge sheet on April 27, 1979, on the allegation that Shri Bhagwan Bedi, Manager, R.K. Tongia (petitioner) clerk -cum -Assistant Cashier, Shri A.K. Devnani, Clerk -cum -Assistant Cashier, and Shri H.H. Modi, Chief Cashier were working in 1977 in the United Commercial Bank Bhilwara. The aforesaid persons and some unknown persons were party to a criminal conspiracy to cheat the Bank. In pursuance of the said conspiracy Shri H.H. Modi, while officiating as Manager on August 30, 1977, issued a duplicate pass book of a new account No. 715/4 in place of original passbook to Shri Tota Ram Dayal Das of Bhilwara, who deposited Rs. 47,000/ - on August 30, 1977. Shri Modi obtained signatures of Shri Totaram Dayal Das on the specimen signatures card and deposit slip of Rs. 47,000/ - dated 30th August, 1977. The duplicate passbook was signed by Shri Modi which was prepared by Shri Devnani, who also wrote word 'duplicate' an the cover of the passbook without application for issuing the duplicate passbook from the account holder. The duplicate passbook was not entered in the ledger -sheet of Account No. 715/4 in the passbook issued register of the Bank. In pursuance of the said conspiracy on 1st October, 1977, a forged bearer withdrawal form for Rs. 10,000/ - in the name of Shri Tota Ram Dayaldas was presented/got presented from the unknown conspirator by the accused persons. The forged signature on the with drawal form purported to be of Shri Totaram Dayaldas was verified by Shri Bedi when they were quite distinct to speciman signatures of Shri Totaram Dayaldas. On the withdrawal form word 'Bhilwara' was written in the hand of Shri Tongya (petitioner). The payment of Rs. 10,000/ - of the forged with drawal form was passed by Shri Bedi by putting his signatures on it and token No. 7308 was issued to one Shri Lala Ram (unknown person) by Shri Tongia for payment without presentation of the passbook of the account holder. The entries were also made in the token book, ledger -sheet of the account No. 715/4 and on the forged withdrawal form by Shri Tongia which were verified by Shri Bedi as Manager. The payment of Rs. 10,000/ -was made by the cashier accordingly to the token holder on the basis of verification of the signature of account holder and passing the payment of the said forged withdrawal form by the Manager Shri Bedi. Thus, accused persons cheated the Bank by causing wrongful loss to the Bank of Rs. 10,000/ - and corresponding wrongful gain to said Shri Lala Ram, themselves jointly and severally.

(3.) IT is contended by the learned Counsel for the petitioner that the accused petitioner was not in picture at all at the time of the opening of the account, taking specimen signatures, preparing and delivering passbook to the account holder and depositing amount on 30th August, 1977. There is no allegation worth the name on record that before 1st October, 1977, the accused petitioner was in any manner concerned with the matter or had handled any papers at any stage. Even the account holder does not say that he ever met the accused petitioner on 30th August 1977, or thereafter. The accused petitioner on 1st Oct., 1977, was working as a token -cum -ledger clerk. The duty of the petitioner was to take the withdrawal form with passbook from the presenter and see that it is in order and after obtaining the signature of the person on the withdrawal form to note the token number on the withdrawal form. Thereafter it was the duty to make entry in the token register and send it with the said register along with passbook to the passing officer, the Manager, who after verifying the signatures with the specimen signatures, which remain in his personal custody, sends it back to the ledger clerk for its posting in the ledger sheet of the account holder. The ledger -keeper thereafter makes an entry in the ledger and passbook and affixes 'pay cash' stamp on the withdrawal form and sends the same with token register and passbook to the passing officer, who after checking puts his initial in the ledger, passbook and 'pay cash' stamp on withdrawal form signifying that the same has been passed for payment. Thereafter the papers are sent lo the paying cashier direct from the pissing officer. The payment cashier then calls the person who is holding the token number and after taking back the taken hand over's the withdrawal form to the person for making his second signature on the book of the withdrawal slip to ascertain that the person presenting the withdrawal form and taking the payment is the same person and then makes the payment and returns the passbook to the presenter. It is thus contended that taking the entire allegations as mentioned in the charge -sheet to be correct there are two allegations, (1) that he wrote the word 'Bhilwara' on the alleged forged withdrawal form under the printed name of the Bank signifying the place of branch and (2)that he entertained the withdrawal form without passbook. As regards the first allegation it is contended that the Bank uses two types of stationery; one on which the Bank and the name of the Branch is also printed and the other in which the name of the Bank is printed, but the place and the name of the branch is left blank. As in the present case the presenter of the withdrawal form had used the second type of stationery, it was quite natural and necessary for the petitioner to mention the name of the branch and in that regard if he wrote the word 'Bhilwara' on the withdrawal form it had no connection whatsoever with the commission of the crime. As regards the second allegation it is contended that there was not an ioto of evidence in the statement recorded by the prosecution during investigation that the withdrawal form did not accompany the passbook. It is contended that in accordance with the instruction No. 4.7 contained in chapter 2 of Manual of Instructions issued by the United Commercial Bank, Head Office Calcutta, no withdrawal by withdrawal slip is permissible unless the related passbook is presented simultaneously with the withdrawal slip. In case of unusual circumstances where the production of the passbook is dispensed with, discretion has been given to the Managers to allow withdrawal without passbook. Such discretion is to be used very sparingly and only under such circumstances as would otherwise cause great hardship to the depositor and where the depositor is personally known to the Manager. In a case where the withdrawal form does not accompany the passbook there is a special withdrawal from D.S. 3A, prescribed by the bank which has to be used and withdrawal can be permitted only under exceptional circumstances and also when personally authorized by the Manager as mentioned in the note appended at the bittern of the aforesaid instruction No. 4.7. In the present case admittedly form D.S. 3A was not used and as such the withdrawal was not permissible unless the related passbook was presented simultaneously with the withdrawal slip. The petitioner had neither any knowledge nor there is any iota of evidence to show that he was aware that any duplicate passbook had been issued as admittedly no procedure for issue of a duplicate passbook was followed as contemplated by instruction No. 7.9. In the aforesaid circumstances the petitioner acted perfectly in accordance with the instructions issued by the bank and discharged his duties as a token -cum -ledger clerk. It is also argued that there was no evidence worth the name in the statements of Shri Tota Ram Dayal Das, the account holder, Shri Ramesh Sawlani, Assistant Cashier, Shri S.K. Bhargavo Officer, UCO Bank, or Shri O.P. Sharma Chief Cashier that the withdrawal form did not accompany the passbook, nor that the petitioner was a party to any conspiracy or had any common intention to commit conspiracy and had any act in reference to that common intention. Reliance is placed on N.C. Taneja and Ors. v. State and Ors. 1970 Cr. L.J. 945, in which a learned Single Judge of this Court held that there should be a prima facie evidence that a person was a party to a conspiracy before his act can be used against him or against his co -conspirator. The evidentiary value of the said act is limited in main by two circumstances, namely, that the act shall be in reference to their common intention and that it should be in respect of a period after the intention entertained by any one of them.