RAM GOPALversusCENTRAL BUREAU OF INVESTIGATION, DEHRADUN

                         [2019] 9 S.C.R. 663                           663


                          RAM GOPAL                                    A
                                 v.
   CENTRAL BUREAU OF INVESTIGATION, DEHRADUN
              (Criminal Appeal No. 1085 of 2019 etc.)
                          JULY 22, 2019                                B
        [ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
      Penal Code, 1860:
       ss.120-B, 420, 467, 468, 471, 477-A and 201 r/w ss. 13(1)(d)
and 13(2) of Prevention of Corruption Act, 1988 – Conviction under     C
– Of bank employees – For opening fictitious account, depositing
certain amount therein and withdrawal therefrom by seventeen
cheques – Propriety of – Held: It is proved that fraud was committed
in a systematic manner by persons well acquainted with banking
procedures – No defence evidence that the appellants (bank
                                                                       D
employees) had no access to records of the Bank – Evidence of
their involvement is clinching – Conviction upheld.
      Dismissing the appeals, the Court
       HELD : 1. It is an undisputed fact that a fictitious account
was opened without proper verification in accordance with the          E
banking procedures.But that does not appear to have been the
subject of investigation and which could have revealed more facts
with regard to the nature and manner of the embezzlement that
has taken place, including the persons involved in the same. The
trial court has rightly observed that in accordance with banking
procedures, the opening of the account, the deposits in the same       F
and withdrawals could not have been the handiwork of the
appellants alone. But merely because the investigation may not
have been of the standard and nature that it ought to have been,
cannot enure to the benefit of the appellants in view of the nature
of materials and evidence available against them. [Para 6]             G
[665-G-H; 666-A-B]
      2. The validity of the sanction against the appellants for
prosecution, who were undisputedly employed as messenger and
assistant clerk respectively in the same branch, has been proved
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                                663
664            SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A     by PW-1 and PW-2. The evidence is sufficient to establish
      conspiracy. [Para 7] [666-C, E]
            3. The fraud was committed in a systematic manner by
      persons well acquainted with banking procedures. The appellants
      were also the employees of the Bank. There is no defence
B     evidence that they had no access to records of the Bank at any
      stage to commit the offence attributed to them. On the contrary,
      the evidence of their involvement is clinching. They also had
      access to the vouchers and ledgers as part of their normal duties.
      Even the specimen signature card was made to disappear
      replaced by a torn paper. Therefore there is no reason to interfere
C     with the conviction of the appellants. [Paras 8 and 9] [666-G-H;
      667-A]
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1085 of 2019.
D           From the Judgment and Order dated 05.09.2017 of the High Court
      of Judicature at Allahabad in Criminal Appeal No. 1226 of 2013.
            With
            Criminal Appeal No. 1086 of 2019.
           S. S. Kulshestha, Sr. Adv., Ajeet Pandey, Danish Zubair Khan,
E
      Rameshwar Prasad Goyal, Advs. for the Appellant.
           Mukul Singh, Rajat Nair, Arvind Kumar Sharma, Mukesh Kumar
      Maroria, Advs. for the Respondent.
            The Judgment of the Court was delivered by
F           NAVIN SINHA, J. 1. Leave granted.
             2. The appellants assail their conviction under Sections 120-B,
      420, 467, 468, 471, 477-A, 201, I.P.C. read with Sections 13(1)(d) and
      13(2), Prevention of Corruption Act.

G            3. The Central Bureau of Investigation registered an F.I.R. on
      12.04.1994 based on the statement of the Assistant General Manager,
      State Bank of India, Ghaziabad with regard to the opening of a fictitious
      Bank account on 13.07.1992 in the name of one Raj Kumar. Soon
      thereafter by separate forged credit entries between the period 23.07.1992
      to 31.10.1992, deposit of Rs.3,22,056.00 was made in the account.
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                 RAM GOPAL v. CBI, DEHRADUN                                    665
                      [NAVIN SINHA, J.]

Subsequently on different dates a sum of Rs.3,22,000.00 was withdrawn          A
by seventeen cheques leaving a balance of Rs.322.85. Originally two
clerks of the Bank, Dinesh Kumar Sharma and Smt. Vandana Kundra
were named as accused along with other unknown persons. The names
of the appellants transpired during investigation leading to the submission
of charge sheet against them only, and after conclusion of the trial they
                                                                               B
were convicted.
        4. Learned counsel for the appellants contended that they have
been made scapegoats while the original named accused have been
wrongly exonerated during investigation. The sanction for their
prosecution was not in accordance with law. There is no evidence that
the appellants were instrumental in any manner with regard to opening          C
of the fictitious account. No evidence has been led in support of criminal
conspiracy. It was not possible for the appellants to destroy evidence
with regard to account opening form, specimen signature of the account
holder or make forged credit or debit entries in the ledger. The report of
the handwriting expert with regard to the writing and signature on the         D
cheques was a mere expression of an opinion. DW-1 the handwriting
expert on behalf of the appellants had doubted the very same handwriting
and signatures of the appellants. They are therefore entitled to the benefit
of doubt. No action has been taken against the concerned Bank
employees responsible for opening of the fictitious account, much less
has the prosecution even attempted to investigate and identify such            E
persons. The withdrawals from the fictitious account through bearer
cheques were not received by the appellants as acknowledged by
PW-3.
       5. Learned counsel for the Central Bureau of Investigation
submitted that there has been thorough evaluation of evidence, including       F
that of handwriting experts, and the charge against the appellants stands
proved.
        6. We have considered the submissions on behalf of the parties
and gone through the materials on record. It is an undisputed fact that a
fictitious account was opened without proper verification in accordance        G
with the banking procedures. That unfortunately does not appear to
have been the subject of investigation and which could have revealed
more facts with regard to the nature and manner of the embezzlement

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666             SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A     that has taken place, including the persons involved in the same. The
      trial court has rightly observed that in accordance with banking
      procedures, the opening of the account, the deposits in the same and
      withdrawals could not have been the handiwork of the appellants alone.
      But merely because the investigation may not have been of the standard
      and nature that it ought to have been cannot enure to the benefit of the
B
      appellants in view of the nature of materials and evidence available against
      them.
             7. The validity of the sanction against the appellants for prosecution,
      who were undisputedly employed as messenger and assistant clerk
      respectively in the same branch, has been proved by PW-1 and PW-2.
C     The Sub. Inspector, Central Bureau of Investigation PW-23, proved that
      the appellants had given their specimen writing and signatures during
      investigation. The Principal Scientific Officer, C.F.S.L., PW-18 deposed
      that the account opening form of the fictitious account was in the
      handwriting of appellant Pankaj Kumar Jain impersonating the fictitious
D     account holder Raj Kumar. The receipt of cheque book and pass book
      from the Bank records, on behalf of the fictitious account holder, were
      in the handwriting of the appellant Pankaj Kumar Jain. The writing on
      two of the withdrawal cheques drawn as “self” on the fictitious account
      purporting to be signed by the said Raj Kumar were in the handwriting
      of appellant Ram Gopal. The signature on all the 17 forged cheques for
E     withdrawal by “self” were in the handwriting of appellant Pankaj Kumar
      Jain impersonating the fictitous account holder. These in our opinion
      were sufficient to establish conspiracy. The hand writing expert DW-1
      relied upon by the appellants gave his report based on photocopies of the
      writing and signatures of the appellants and not on the basis of their
F     specimen signatures. During the course of hearing we asked the counsel
      for the appellants if they had filed any objection to the report of the
      handwriting expert relied upon by the prosecution. It was fairly stated
      that they did not do so.
             8. The fraud was committed in a systematic manner by persons
G     well acquainted with banking procedures. The appellants were also the
      employees of the Bank. There is no defence evidence that they had no
      access to records of the Bank at any stage to commit the offence
      attributed to them. On the contrary, the evidence of their involvement is
      clinching. They also had access to the vouchers and ledgers as part of

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                  RAM GOPAL v. CBI, DEHRADUN                                  667
                       [NAVIN SINHA, J.]

their normal duties. Even the specimen signature card was made to             A
disappear replaced by a torn paper.
      9. We therefore find no reason to interfere with the conviction of
the appellants. The appeals are dismissed.

                                                                              B
Kalpana K. Tripathy                                      Appeals dismissed.




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