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Kurian Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCompany;Criminal
CourtKerala High Court
Decided On
Case NumberCriminal Revision Petition No. 287 of 1979
Judge
Reported in[1984]55CompCas536(Ker); 1982CriLJ780
ActsIndian Penal Code (IPC), 1860 - Sections 21; Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 - Sections 3(3) and 3(4); Companies Act, 1956 - Sections 617
AppellantKurian
RespondentState of Kerala
DispositionRevision petition dismissed
Cases ReferredN.B. Shukla v. Bank of Baroda
Excerpt:
.....sustained. - - the daily transactions were entered in a token book as well as a teller card maintained in respect of individual customers. p-6 read 'aleyama'.this is a strong circumstance which goes to show that ex. 11,000 on january 16, 1978, clearly make out that no amount was withdrawn by pw-2 on november 9, 1977, and on november 14, 1977, and that the revision petitioner who was in charge of the bank counter at the rubber board office on those days appropriated for himself the amounts of rs. it can be made out by circumstantial evidence as well. we are not satisfied that this is a fit case for appeal to the supreme court......or a government company as defined in section 617 of the companies act, 1956 (1 of 1956).' 4. the central bank of india, of which the petitioner was an employee, is included in the first schedule to the banking companies (acquisition and transfer of undertakings) act, 1970. under the said act, certain then existing banks which were functioning as banking companies not being foreign companies were converted into nationalised banks. 'the banking companies so converted and the 'corresponding new banks are included in the first schedule. under section 3(3) of the act, the entire capital of each corresponding new bank stood vested in, and allotted to, the central govt. sub-section (4) of section 3 mentions that every corresponding new bank is a body corporate with perpetual succession and a.....
Judgment:

Janaki Amma, J.

1. The revision petitioner was convicted by the Chief Judicial Magistrate, Kottayam, in C. C. No. 56 of 1978, for offences punishable under Sections 409, 465, 471 and 477A of the IPC and sentenced to undergo rigorous imprisonment for one year under Section 409 of the IPC and rigorous imprisonment for six months under each of the other counts. The sentences were directed to run concurrently. He filed Criminal Appeal No. 159 of 1978 before the Sessions Judge, Kottayam. The Sessions Judge confirmed the conviction under Section, 409 and Section 477A of the IPC and reduced the sentence under Section 409 of the IPC to six months. The conviction and sentences under Sections 465 and 471 of the IPC were set aside. The revision petition is directed against the conviction and sentences under Sections 409 and 477A of the IPC.

2. The facts of the case are as follows : The petitioner was a permanent employee of the Central Bank of India, Kottayam branch. An extension counter had been functioning during the relevant period at the Rubber Board Office at Puthupally to facilitate the operation of savings account transactions of the staff of the Rubber Board. The revision petitioner was functioning as a 'C' Grade cashier in the extension counter inNovember, 1977. The depositors having accounts in the extension counter were being issued pass books wherein the deposits and withdrawals were entered. Separate accounts regarding the transactions were maintained in the Kottayam branch. The daily transactions were entered in a token book as well as a teller card maintained in respect of individual customers. Amounts were being withdrawn on presentation of withdrawal slips signed by the party. The petitioner was having custody of the relevant records. On the basis of the token book, entries were being made in the ledger maintained in the branch office at Kottayam and this account was being checked by the accountant.

3. PW-2, Aleyamma Abraham, a member of the staff of the Rubber Board, was having a savings bank account, of which Ex. P-1 is the pass book. On January 16, 1978, she had to her credit an amount of Rs. 12,463.70. She withdrew Rs. 11,000 on that day and the balance was Rs. 1,463.70 as per the pass book issued to her. PW-3, a sub-accountant of the Kottayam branch, had occasion to scrutinise the ledger maintained in respect of PW-2. He detected a credit entry of Rs. 6,000 on January 12, 1978, stated to have been paid by cheque, unsupported by a voucher. Further verification revealed a withdrawal of Rs. 1,000 on November 9, 1977, as per Ex. P-2 (withdrawal slip) and another amount of Rs. 5,000 on November 14, 1977, as per Ex. P-6 (withdrawal slip). These entries were seen entered in Ex. P-3 (teller card) maintained in the name of PW-2. It was disclosed that another teller card (Ex. P-5) was also maintained in the name of the same party and that the balance under Ex. P-3 and Ex. P-5 did not tally. PW-1, the branch manager, was informed about the irregularity. He contacted PW-2, Aleyamma Abraham, as per Ex. P-8 letter dated January 16, 1978, in order to ascertain the authenticity of the credit entry of Rs. 6,000 on January 12, 1978. She was also informed that if the credit entry of Rs. 6,000 was not to be taken into account, the balance available to her account was only Rs. 4,536.30. Since there was some doubt regarding two withdrawals, viz., the one of Rs. 1,000 on November 9, 1977, and the other of Rs. 5,000 on November 14, 1977, she was asked to inform whether those amounts were actually drawn by her. PW-2 received the letter on January 17, 1978. She sent Ex. P-9 reply denying that she had withdrawn amounts debited against her on November 9, 1977, and November 14, 1977. She also stated that she had not paid an amount of Rs. 6,000 referred to in Ex. P-8 either by cash or by cheque on January 12, 1978. She maintained that even without that deposit she had sufficient amount to her credit when she withdrew Rs. 11,000. The entries in Ex. P-3 and Ex. P-5 (teller cards), Ex. P-10 (token register) and Ex. P-11 (voucher) were found to be in the handwriting of the petitioner. On January 18, 1978, according to the prosecution, the petitioner remittedRs. 6,000 in the bank under Ex. P-12 series vouchers. On January 19, 1978, he gave the statement, Ex. P-7, admitting that he had misappropriated Rs. 6,000 on the basis of Ex. P-2 and Ex. P-6 forged withdrawal slips. The petitioner was thereupon placed under suspension. A complaint, Ex. P-13, was launched with the police. A crime was registered and in due course the petitioner was tried and convicted. It is the above conviction and sentence which are the subject matter of the revision.

3. The revision petition stands referred to a Division Bench for a decision on the question whether an employee of a nationalised bank is a public servant coming under the definition of that term in Section 21 of the IPC. As far as we could see there is no scope for controversy on this point. Section 21 of the IPC mentions the various persons who are public servants. The 12th clause reads :

'Twelfth--Every person-

(a) in the service or pay of the Government or remunerated by feesor commission for the performance of any public duty by the Government ;

(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).'

4. The Central Bank of India, of which the petitioner was an employee, is included in the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Under the said Act, certain then existing banks which were functioning as banking companies not being foreign companies were converted into nationalised banks. 'The banking companies so converted and the 'corresponding new banks are included in the First Schedule. Under Section 3(3) of the Act, the entire capital of each corresponding new bank stood vested in, and allotted to, the Central Govt. Sub-section (4) of Section 3 mentions that every corresponding new bank is a body corporate with perpetual succession and a common seal with power, subject to the provisions of the Act, to acquire, hold and dispose of property, and to contract, and may sue and be sued in its name. It is thus clear that after the above enactment, the Central Bank of India became a bank of which the entire share capital vested in the Central Govt.

5. Section 617 of the Companies Act defines a Government company as any company in which not less than fifty-one per cent, of the paid up share capital is held by the Central Govt. or by any State Govt. or Governments, or partly by the Central Govt. and partly by one or more State Govts. and includes a company which is a subsidiary of a Government company as defined. Therefore, the Central Bank of India satisfies the definition. It is also a body corporate established under a Central Act. It follows that a person in the service or pay of the Central Bank of India is a public servant within the definition of the term in Section 21 of the IPC.

6. Reference may in this connection be made to the decision in United Commercial Bak v. V.J. Vyas [1977] Lab IC 1013. The decision recognises the principle that an employee of a bank acquired the status of a public servant after nationalisation of the bank. There was, however, no discussion on the point. It may be noted in this connection that Article 12 of the Constitution defines a State : The definition includes 'all local or other authorities within the territory of India or under the control of the Government of India'. It has been held in Rajasthan State Electricity Board v. Mohan Lal, AIR 1967 SC 1857 and Sukhdev v. Bhagatram, AIR 1975 SC 1331, that the expression 'other authorities' is wide enough to include within it every authority created by statute and functioning within the territory of India or under the control of the Government of India. Following the above dictum it has been held in N.B. Shukla v. Bank of Baroda [1979] 1 LLJ 291, that a nationalised bank comes under 'other authorities' under Article 12 of the Constitution. This also indicates that an employee of the nationalised bank is a public servant, but this aspect need not be taken into account in view of the reasoning adopted in the foregoing paragraph.

7. Coming to the merits of the case, the contention put forward on behalf of the petitioner is that there are no sufficient materials in the case to prove that he is guilty of an offence of breach of trust. He admitted that Ex. P-3 (teller card) is maintained by him, but denied that Ex.P-5 (teller card) was written by him. The petitioner also denied that he remitted Rs. 6,000 on January 18, 1978. According to the stand taken, Ex. P-7 statement was given by him under duress, and, therefore, should not be acted upon. He also denied that he had anything to do with the entry of Rs. 6,000 in Ex. P-4 against the date January 12, 1978. It was further argued that in the absence of expert opinion on a comparison of the handwriting and signature, the trial court should not have relied upon the documents produced and held that he was responsible for the misappropriation and using of forged documents.

8. The main question involved is whether, there were withdrawals of Rs. 1,000 and Rs. 5,000 on November 9, 1977 and November 14, 1977, respectively. In the ordinary course, the evidence of PW-2, Aleyamma Abraham, has considerable significance, but in the course of her evidence she evinced an interest in the revision petitioner and gave prevaricativeanswers. She was, therefore, declared hostile and cross-examined. When asked whether she had drawn amounts on November 9, 1977, and November 14, 1977, she would say that she did not remember the dates when she withdrew amounts. When confronted with the signatures in Ex. P-2 and Ex. P-6, she would say that they resembled her signature and could not say whether they were hers or were not hers. She admitted Ex. P-9, her letter to the manager, Central Bank, Kottayam, wherein she denied that there was any withdrawal either on November 9, 1977, or on November 14, 1977. But she would say that when she wrote that letter she was not in possession of the pass book, Ex. P-1. Evidently her version in court is against the case put forward by her in Ex. P-9 letter. The courts below rightly declined to act upon her evidence in court to the effect that the signatures in Ex. P-2 and Ex. P-6 resembled her signature. A casual look at the signatures in Ex. P-2 and Ex. P-6 with the admitted signature of PW-2 in Ex. P-9 and her deposition is sufficient to show that Ex. P-2 and Ex. P-6 could not have been signed by her. While she has put her signature as 'Aleyama' in Ex. P-9 and the deposition, the signatures in Ex. P-2 and Ex. P-6 read 'Aleyama'. This is a strong circumstance which goes to show that Ex. P-2 and Ex. P-6 could not have been signed by her. It is also significant to note that although PW-2 would say that her statement in Ex. P-9, that she had not withdrawn any amount on November 9, 1977, and November 14, 1977, was made because she was not at the time of making the statement in possession of her pass book, her pass book Ex. P-1 does not contain entries on November 9, 1977, and November 14, 1977, to the effect that she had withdrawn any amount. When she was confronted with this she would say that it could be because of some omission. Assuming that it was due to omission that the withdrawals on November 9, 1917, and November 14, 1977, were not noted in the pass book, it would mean that the amount to her credit would stand reduced by Rs. 6,000. The amount to her credit on November 14, 1977, would only be Rs. 2,593.10. She has no case that she remitted Rs. 6,000 on January 12, 1978, either by cash or by cheque ; if that be so, the balance amount which stood to her credit on November 14, 1977, and the subsequent remittances and withdrawals would have left only an amount of less than Rs. 11,000 and she would not have been able to withdraw Rs. 11,000 on January 16, 1978.

9. As regards the alleged remittance of Rs. 6,000 on January 12, 1978, the only document which makes mention of it is Ex. P-4, the ledger account. As per the entry, the remittance was by cheque, PW-2, as already stated, has no case that she remitted the amount. The entry in Ex. P-4 is not seen initialled. The cheque or the supporting credit slip in respect of the deposit is not forthcoming. PW-1, the branch manager, would say thateven though he scrutinised all the available vouchers, he could not find one corresponding to the entry of Rs. 6,000. The combined effect of the evidence of PWs. 1 and 2 is that there was no remittance of Rs. 6,000 by or behalf of PW-2 on January 12, 1978. It is noted that above the entry relating to Rs. 6,000 there is another entry regarding disbursement of Rs. 600 on January 12, 1978, and below the disputed entry there is the entry regarding payment of Rs. 11,000 on January 16, 1978. PW-3, the sub-accountant of the Kottayam branch, has given evidence that both these entries have been initialled by him but not the entry regarding Rs. 6,000. He searched to find out if there was any supporting voucher, but could not get it. It was he who reported the matter to PW-1. There is no scope for doubt that the entry of Rs. 6,000 was made by somebody to cover the earlier payment of Rs. 1,000 on November 9, 1977, and Rs. 5,000 on November 14, 1977, and to enable the payment of Rs. 11,000 when a demand was made by PW-2 on January 16, 1978.

10. The evidence of PW-1 would further make out that he sent the letter, Ex. P-8, to PW-2, Aleyamma Abraham, and after getting her reply questioned the petitioner. The petitioner remitted Rs. 6,000 on January 18, 1978, as per Ex. P-12 series and gave Ex. P-7 statement on January 19, 1978. The petitioner would say that he did not give the statement but that he gave a blank sheet with his signature and that he did not remit any amount on January 18, 1978. It is difficult to accept this case in view of the documents produced and the evidence of PW-1. Even if the remittance of January 18, 1978, and Ex. P-7 are ignored, there are enough materials to sustain the conviction. The petitioner has admitted that Ex. P-3 teller card was maintained by him. The withdrawal on November 9, 1977, and November 14, 1977, are seen noted in it. Exhibit P-10 is the Teller Daily Cash Register for November 9, 1977. The withdrawal of Rs. 1,000 by PW-2 on November 9, 1977, is noted therein. The absence of corresponding entries in Ex. P-1 and the difference in signature in Ex. P-2 and Ex. P-6, the inconsistent versions spoken to by PW-2, taken along with the admitted withdrawal by PW-2 of Rs. 11,000 on January 16, 1978, clearly make out that no amount was withdrawn by PW-2 on November 9, 1977, and on November 14, 1977, and that the revision petitioner who was in charge of the bank counter at the Rubber Board office on those days appropriated for himself the amounts of Rs. 1,000 and Rs. 5,000 shown against the above dates in Ex. P-3.

11. On behalf of the petitioner it was contended that in the absence of the evidence of an expert or a person who is conversant with the handwriting of the petitioner and in view of the fact that the person who made the entries on January 16, 1978, has not been examined, the conviction cannotbe sustained. It is true that the evidence of an expert or that of a person conversant with the handwriting is ordinarily desirable and can be acted upon in proving the entries in accounts. It is also desirable to get entries in accounts proved by the person who wrote the account. But the above are not the only ways for making out a case of misappropriation. It can be made out by circumstantial evidence as well. In this case, Ex. P-3 is admitted by the petitioner as written in his handwriting. There is clinching circumstantial evidence to show that no amount was withdrawn by PW-2 on November 9, 1977, and on November 14, 1977, which is sufficient to to show that Ex. P-2 and Ex. P-6 are withdrawal slips containing the forged signature of PW-2. It is amply proved that the petitioner was responsible for the withdrawal of Rs. 1,000 on November 9, 1977, and Rs. 5,000 on November, 14, 1977, and that such withdrawals were made making use of Ex; P-2 and Ex. P-6. There are, therefore, sufficient reasons for sustaining the conviction.

12. The revision petition is, therefore, dismissed.

13. An oral application was made for a certificate for appeal to the Supreme Court under Article 134 of the Constitution. We are not satisfied that this is a fit case for appeal to the Supreme Court. Certificate not granted.


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