Ashfaque Ali Vs State of Chhattisgarh

This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 12.08.2005 passed by learned Additional Sessions Judge, Dantewada, District- South Bastar Dantewada, C.G. in Sessions Trial No.10/2003, wherein the said Court convicted the appellant and sentenced him as under:-

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Conviction	Sentenc	e
Under Section 420 of IPC	R.I. for	05 years with fine
	amount	of Rs. 50,000/-, in
	default	payment of fine, to
	undergo	additional S.I. for 01
	year.

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2

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Under Section 467 of IPC	R.I. for 10 years with fine
	amount of Rs. 5,000/-, in default
	of payment of fine, to undergo
	additional S.I. for 06 months.

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(Both sentences are directed to run concurrently)

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Prosecution story:-

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The prosecution case, in brief, is that on 13.12.1992, appellant, (the then Manager at Regional Rural Bank, Branch- Nelsar, DistrictBastar,C.G.) went to the house of Radhabai (PW-09) who resides at Village- Bodli (which is 8 Kms from Nelsar) and after eating chicken, he returned to Nelsar. On that night, the Bank was set to ablaze, the Research Agency were having doubts on the appellant as he was habitual gambler and he must have formed this conspiracy to cover up his financial irregularities/infirmities and to destroy any evidence regarding his fraudulent work during his tenure as a Manager of the said Bank. After getting the oral and documentary evidence by the Research Agency that the appellant had committed financial irregularities and withdrawn the amount fraudulently, it is evident from the Research Agency that the appellant had withdrawn the amounts from the State Bank of India, Geedam on different dates and the said amounts were not deposited by the appellant in Rural Regional Bank. The appellant had also withdrawn amount fraudulently from the saving account holders and withdrawn the amount in the name of Block Development Officer, Bhairamgarh on different dates, whereas the said amounts were not withdrawn on different dates by the said department. The appellant had also falsified the Bank records.The prosecution after conducting the due and necessary investigation, filed the charge-sheet before the Court of Judicial Magistrate, Dantewada, thereafter, the matter was committed to learned Additional Sessions Judge, North Bastar Dantewada and the accused/appellant was put to trial for the offence punishable under Sections 436, 409, 409, 420, 420 & 467 of IPC.

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So as to hold the accused/appellant guilty, the prosecution examined as many as 25 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the incriminating charges leveled against him and pleaded his innocence and false implication in the case. In his defence, the appellant examined 02 witnesses.

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The learned trial Court after hearing the counsel for the respective parties and considering the material available on record convicted and sentenced the accused/appellant, as mentioned in para 1 of this judgment. Hence, the present appeal.

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Submission of the parties:-

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Learned counsel for the appellant submits that conviction of the appellant is bad, illegal and improper, the prosecution has failed to prove necessary ingredients of offence under Section 420 of IPC, the appellant has been convicted under Section 467 of IPC, but there is no evidence available on record that appellant has forged any document. Learned Trial Court has convicted the appellant on the basis of depositions of B.C. Mazumdar (PW-03) and Moti Singh Chandravanshi (PW-24), but they have nowhere stated that the appellant forged any documents. He further submits that the conviction is erroneous and contrary to the evidence on record, hence is unsustainable in the eye of law and deserves to be set aside. Learned Trial Court has erred in holding that the accused person/appellant has admitted his guilt while replying to Question No. 15 of his statement under Section 313 Cr.P.C. So, the impugned judgment is liable to be set- aside and appellant deserves to be acquitted of the said charges levelled against him.

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Per contra , learned State counsel supporting the impugned judgment submits that the learned trial Court properly appreciated the oral and documentary evidence and rightly convicted the appellant. Therefore, the impugned judgment does not suffer from any irregularity or infirmity warranting interference by this Court in the instant appeal and appeal is liable to be dismissed.

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I have heard learned counsel for the parties and perused the material available on record including the impugned judgment.

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Discussion & Analysis:-

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It is clear from record of learned Trial Court that the learned Trial Court framed charges for offence under Sections 436, 409,409,420, 420 & 467 of IPC against the appellant and the learned Trial Court after minutely appreciating the oral and documentary evidence, acquitted the appellant of offence under Sections 436, 409, 409 & 420 of IPC and convicted the appellant for offence punishable under Sections 420 & 467 of IPC. It is clear from record of learned Trial Court that prosecution has examined as many as 25 witnesses against the appellant and also the appellant examined 02 witnesses in his defence.

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It is quite vivid that learned Trial Court found in para 34 of its judgment that accused admitted his guilt of Question No. 15 and relied upon the evidence of B.C. Majumdar (PW-03) & Motisingh Chandravanshi (PW24), thereby convicted the appellant.

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B. C. Majumdar (PW-03) has stated in his examination-in-chief that on different dates, the amounts were withdrawn and in para 12 of his cross-examination he admitted that “ 12. ;g ckr lgh gS fd Vh0vkj0 ls bl ckr iqf"V gksrh gS fd jkf'k fyad 'kk[kk ls fudky dj iz/kku dk;kZy; [kkrk esa tek dh xbZ gSA ;g ckr lgh gS fd lkIrkfgd fooj.kksa esa Hkh mDr fooj.k vkrk gSA ’’

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Moti Singh Chandravanshi (PW-24) has also admitted in paras 7 & 8 of his cross-examination that “ 7. ;g dguk lgh gS fd cLrj {ks=h; xzkeh.k cSad usylukj e s a tc vkx yxh mlds i'pkr gh eSaus izHkkj fy;k FkkA ;|fi eSaus TokbZu vDVwcj 1992 esa dj fy;k Fkk fdarq izHkkj ysus esa eq>s blfy, foyac gqvk pqafd dSlcqd esUVsu ugh Fkk mDr dS'kcqd fodkl [kaM HkSjex<+ dh ugh Hkjh xbZ FkhA

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fodkl[kaM HkSjex<+ dh dS'kcqd tks lacaf/kr DydZ ds }kjk fy[kh tkrh Fkh og cjkcj ugh Hkjh xbZ Fkh] ckn esa Hkjh xbZ FkhA rc eSaus pktZ fy;kA ’’

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The accused person/appellant has answered question No. 15, which is

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reproduced for ready reference is as under:-

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‘' ्ቚ्቞-15 उपरो्ሹ गवाहकायहभीकथनहैकी्ቇ ामीणबैंकनेल्सनरशाखाकेदैनिनकलेन

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- देनरजि"स्टरकेपृ्ቖ -146 और 185 परनिवकासखंडअधि,कारीभैरमगढ़कोनिदनांक 04.11.91 एवं 04.01.92 को्ቅ मशः 25 ह"ाररुपएएवं 20 ह"ाररुपएकोभुगतान निकया"ानाबतायागयाथा, तुम्हाराक्याकहनाहै ?

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उ्ቈर- भुगताननिकयागयाहै I ’’

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The accused/appellant has examined himself as Defence Witness-2 and stated in para 3 that “ …..y{ehjkuh jk; us fnukad 06-08-1992 dks gh lkof/k tek j'khn jkf'k 25000@&:i;s cuokbZ Fkh tks iz0Mh0&19 gSA lkFk gh eSa U;k;ky; Jheku izFke O;ogkj U;k0oxZ&2 txnyiqj ds U;k;ky; esa lafLFkr okn dzekad &3,@99 esa okfnuh Jherh y{ehjkuh jk; }kjk izLrqr nLrkost dh lwph dh izekf.kr lR;izfrfyih izLrqr dj jgk gWw ftlesa Hkh nf”kZr gS] fd fo'ks"k lkof/k tek j'khn fnukad 06-08-1992 dks gh rS;kj dh xbZ Fkh tks iz0Mh0&20 gSA ’’

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Learned Trial Court convicted the appellant under Section 467 of IPC and charge framed by Trial Court in para 06, which is reproduced herein for ready reference as under:-

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“ 6 rqe usylukj {ks=h; xzkeh.k cSad ds izca/kd dh gSfl;r csbZekuhiwoZd vk'k; ls lu~ 1990 ls 12-12-92 ds e/; LVsV cSad xhne ls fnukad 18-08-92 dks izkIr 20000@#&:i;s fnukad 14-09-92 dks izkIr 20000@&:i;s rFkk fnukad 25-09-92 dks IkzkIr 15000@&:i;s rFkk fnukad 06-03-92 dks Jherh y{eh jk; ls lkof/k tek j”khn okLrs izkIr 25000@& :i;s rFkk cpr [kkrk/kkjh ekM+oh tksxk] oqt: jke ,oa ts-,Q-c?ksy ds ikl cqd esa rFkk fodkl[kaM vf/kdkjh HkSjex<+ ds [kkrs esa fnukad 04-11-91 dks 25000@&:i;s rFkk fnukad 04-01-92 dks 20000@&:i;s vkgj.k ds laca/k esa QTkhZ baUnzkt dj dqVjpuk fd;kA vkSj ,slk djds rqeus og vijk/k fd;k tks Hkk0n0fo0 dh /kkjk 467 ds varxZr n.Muh; gS vkSj bl U;k;ky; ds fopj.k {ks=kf/kdkj ds varxZr gSA”

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But, it is clear from statements of both the witnesses i.e. PW-03 & PW24 and answer of the appellant that it is not proved that the accused has forged fixed deposit slip of Laxmirani Rai and the saving account holders of Madhvi Joga and other persons and it is admitted by PW-03 that amount was withdrawn, but deposited in Head Office account and entries were made in T.R. and in weekly details (lkIrkfgd fooj.k). Defence has also filed documents of civil case which was filed by Laxmirani Rai, which shows that accused/appellant is not liable for any

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misappropriation or forgery.

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Learned Trial Court convicted the appellant only on the statements of PW-03 and PW-24 and Question No. 15 of accused’s statement which was recorded under Section 313 of Cr.P.C. But, it is clear that learned Trial Court did not appreciate cross-examinations of both witnesses and overlooked their admission and also did not appreciate statement of defence witnesses, however no other witnesses stated about any forgery or misappropriation against the appellant, learned Trial Court has convicted the appellant only on three grounds, but looking to the cross-examinations of both witnesses and explanation of appellant, it is clear that prosecution has utterly failed to prove its case beyond all reasonable doubts. Thus, findings recorded by learned Trial Court being perverse are unsustainable in the eye of law.

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In view of the aforesaid discussion and considering the facts and circumstances of the case, this appeal is allowed . The impugned judgment is set aside and the appellant is acquitted of the charge under Sections 420 & 467 of I.P.C. Fine amount, if any, deposited by the appellant shall be refunded forthwith.

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The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 437-A of Cr.P.C.

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The Trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

Sd/-

(Rajani Dubey)

Judge

AMIT PATEL

Ashfaque Ali v. State of Chhattisgarh

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Ashfaque Ali v. State of Chhattisgarh

Case brief

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