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PETITIONER: BANK OF INDIA

       Vs.

RESPONDENT: YETURI MAREDI SHANKER RAO & ANR.

DATE OF JUDGMENT28/01/1987

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) DUTT, M.M. (J)

CITATION:  1987 AIR  821            1987 SCR  (2)  87  1987 SCC  (1) 577        JT 1987 (1)   276  1987 SCALE  (1)184

ACT:     Indian  Penal  Code, 1860; s.467 read with  s.  109  and s.471-Accused--Bank  Clerk--Getting  signatures  of  account holder forged on withdrawal forms--Drawing money by present- ing them in Bank--Held liable to be convicted for offences.

HEADNOTE:     The  respondent-Accused, who was working as an  Accounts Clerk in the appellant Bank in the very branch where P.W.  1 had  her  account,  was alleged  to  have  presented  forged cheques  on  her account and misappropriated the  sum  with- drawn. He has prosecuted for offences under s.467 read  with ss. 109, 471, 408 and 420 of Indian Penal Code.     The  trial court and the appellate court found that  the signatures  on the withdrawal forms were not that of P.W.  1 and that they were also not forged by the accused. But  they recorded  a concurrent finding of fact that  the  withdrawal forms bearing forged signatures of P.W. 1 were presented  in the Bank by the respondent-accused and he obtained money and put  his  signatures on the reverse  in  acknowledgement  of receipt of money, that the money so obtained was pocketed by the respondent-accused and was not returned or paid to  P.W. 1.  He was acquitted by the trial court of the charge  under s.408 and by the appellate court under s.420, and ultimately convicted  of the offence under s.467 read with s.  109  and s.471. The State did not prefer appeal against the acquittal under ss.408 and 420.     On appeal by the accused-respondent, the High Court took the  view  that there was no evidence as to who  forged  the signatures  of  P.W. 1 on the withdrawal form  and  that  it could not be said that the accused-respondent knew that  the document  was forged or that he got the document forged.  It came  to  the conclusion that the offence under  s.467  read with  s.  109  was not made out and  that  consequently  his conviction under s.471 also could not be maintained.     In  these  appeals  it was contended on  behalf  of  the appellant  Bank that the respondent-accused was  liable  be- cause he has admitted that the signatures on the back of the withdrawal form were his signatures 88 acknowledging  the receipt of money which he  pocketed  him-

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self. Allowing the appeals, the Court,     HELD: 1.1 The acquittal of the respondent-accused by the High  Court for an offence under s.467 read with s.  109  of the Indian Penal Code was not justified.     1.2  Though there was no evidence about the  forgery  of the  signatures of P.W.  on the withdrawal forms  still  the fact  remained  that the signatures were  forged,  that  the withdrawal form was in the possession of  respondent-accused and  it was he who represented it in the Bank  and  obtained money. P.W. 1 used to take the assistance of the  responden- taccused whenever she wanted to have any transaction in  the Bank and therefore it was expected of him to have known  the signatures  of  P.W. 1. Apart from it there was  nothing  to establish as to from where the respondent-accused got  these withdrawal  forms.  These facts lead to the  only  inference that it was the accused-respondent who got the signatures of P.W. 1 forged on the withdrawal form.     2.  It could not be doubted that the  accused-respondent used  the withdrawal forms knowing them to be forged  or  at least  believed them to be forged on the basis of  which  he obtained  money to which he had no claim and thereby  caused wrongful  gain  to himself and wrongful loss to P.W.  1.  It could  not, therefore, be said that  the  respondent-accused could not be convicted for an offence under s.47 1.     3.  As  three separate prosecutions  were  launched  the respondent  is  convicted of the offences under  s.467  read with s. 109 and s.47 1 of the Indian Penal Code in each  one of  the three cases and sentenced to 9 months  rigorous  im- prisonment  for each of the offences. The sentences  to  run concurrently.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  Nos. 485-488 of 1979 etc.     From  the  Judgment and Order dated 6.12.  1977  of  the Andhra  Pradesh High Court in Cr. Revision Cases  Nos.  294, 295,296 and 293 of 1977     Kapil  Sibal, Atul Wig, Raj Birbal, A.T.M.  Sampath  and G.M. Rao for the Appellant. 89 A.K. Goel, K. Ram Kumar, B Parthasarthi for the Respondents. The Judgment of the Court was delivered by     OZA,  J.  These appeals have been filed after  grant  of leave against the acquittal of the respondent from  offences under  Sections  467 read with Section 109 and  471  of  the Indian Penal Code.     The prosecution case at the trial was that V.  Suryakan- tam  is  a resident of official colony VSP, and has  a  Bank account in the Bank of India since 1965. Her Account No.  is 2006. She has also a cheque-book to operate the Bank  trans- actions and she was also entitled to withdrawal facility for withdrawing money from her accounts. The  respondent-accused was working as an Accounts Clerk in the Bank of India in the very branch where V. Suryakantam P.W.i had her account.     This  V.  Suryakantam, P.W. 1 was ’acquainted  with  the respondent-accused  and  he used to assist her in  the  Bank transactions.  It  is alleged that whenever  she  wanted  to withdraw money on a cheque her daughter V.S. Kanthi used  to fill  up the cheque and she used to sign on the  cheque.  On 23rd NOvember, 1970 the respondent accused misrepresented to P.W. 1 that her account book is required in the Bank for the purpose of posting up to date entries and on this  represen-

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tation obtained her pass-book which he never returned.  P.W. 1 demanded the pass-book several times. He always represent- ed that it was in the Bank and yet not completed.     On  9.12.  1970  the respondent got filled  up  by  some person withdrawal form No. 2055 on the account of P.W. 1  on the  Bank of India for Rs.6,000 and represented  this  with- drawal form in the Bank. He received the money i.e. Rs.6,000 and mis-appropriated the same. On 11.3. 1971 P.W. 1 went  to the  Manager of the Bank. The respondent was absent and  she told him about the fact of having given her passbook to  the respondent  long  back  and that he was  not  returning  the pass-book and dodging her. She also requested him to  verify her accounts. The Manager asked her to come on the next day.     On  12th  March, 1971 when she went to the bank  to  her surprise she learnt that some withdrawal of money have  been done  and very little amount was left over. She  immediately gave a complaint that this withdrawal of Rs.6,000 was not by her as well as two other withdrawals and on the same day the Manager and staff officer went to the house of 90 the accused and questioned him about those transactions. The respondent accused admitted his guilt before the Manager and requested the Manager to excuse him and gave a  confessional statement in writing.     During investigation hand-writing specimen of P.W. 1 and admitted handwriting of the accused-respondent were compared with the handwriting on the withdrawal forms by the  expert. The  opinion of the expert was that signature on  the  with- drawal form was not by P.W. 1 and that the signatures on the reverse  of  the form which is taken in the Bank as  an  ac- knowledgement  for  the  receipt of money was  that  of  the respondent-accused. It was therefore opined that the respon- dentaccused  got  forged  the signatures of P.W.  1  on  the withdrawal  form,  presented it as genuine at the  Bank  and withdrew  Rs.6,000 and therefore he was prosecuted  for  of- fences  under Sections 467 read with Sec. 109, 47 1,408  and 420 of Indian Penal Code. As there were three items of  such withdrawals  three prosecutions were  launched  consequently three appeals and ultimately three appeals are filed here by the  Bank of India and there is also an appeal filed by  the State  against the judgment of acquittal passed  by  Hon’ble the High Court.     On  trial  the respondent accused was convicted  for  an offence under Sec. 420 and sentenced to undergo imprisonment for  9  months  and to pay a fine of Rs. 100.  He  was  also convicted  for an offence under Sec. 467 read with Sec.  109 and sentenced to imprisonment for 9 months and a fine of Rs. 100. He was also convicted under Sec. 47 1 IPC and sentenced to 9 months imprisonment. The trial court however  acquitted him from the effence under Sec. 408.     The  appellate  court acquitted the  respondent  accused from charge under Sec. 420 IPC but confirmed his  conviction under  Sec.  467 read with Sec. 109 and also  under  Section 471, the sentence under the two was maintained.     The State did not prefer an appeal against the acquittal of the respondent under Sec. 408 IPC by the trial Court  and his acquittal under Sec. 420 IPC by the appellate Court. The respondent accused aggrieved against conviction preferred  a revision  petition before Hon’ble the High Court  of  Andhra Pradesh  and  Hon’ble the High Court by its  judgment  dated 21st  February 1977 came to the conclusion that the  offence under  sec. 467 read with Sec. 109 IPC is not made out.  The learned Judge also came to the conclusion that  consequently his conviction under Sec. 471 also could not be  maintained. Consequently  the respondent was acquitted from the  charges

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levelled against him and it 91 is against this judgment of Hon’ble the High Court that  the present  appeals have been filed after obtaining leave  from this Court.     The learned trial Court and the appellate Court came  to the  conclusion that the signatures on the  withdrawal  form were  not that of P.W. 1 but it also came to the  conclusion that they were also not forged by the respondent-accused but both  the Courts came to a concurrent finding of  fact  that these withdrawal forms on which there were forged signatures of  P.W. 1 were presented in the Bank by  the  respondentac- cused and he obtained money on the basis of these withdrawal forms  and  he put his signatures on the  reverse  of  these withdrawal forms in acknowledgement of the receipt of money. These  signatures  on the back side of the  withdrawal  form acknowledging the receipt of money were also admitted by the respondent-accused at the trial.     Both the Courts below also came to a concurrent  finding of  Act  that the money so obtained from the Bank  from  the account of P.W. 1 on the basis of these withdrawal forms was pocketed  by the respondentaccused and was not  returned  or paid  to  P.W. 1 although that was the stand  taken  by  the respondent-accused  and  he also attempted to  prove  it  by producing  a defence witness for that purpose. On the  basis of  these findings both the Courts ultimately convicted  the respondent-accused  for an offence under Sec. 467 read  with Sec. 109 and Sec. 471 IPC.     The learned Judge of the High Court while acquitting the respondent-accused  came to the conclusion that it  was  the duty  of the prosecution to establish as to who  had  forged the signatures of P.W. 1 on the withdrawal form as admitted- ly it has not been established that they were forged by  the respondent-accused  and  on  this basis  the  learned  Judge observed  that as there is no evidence as to who forged  the signatures  P.W.  1 on the withdrawal form it could  not  be held that the accused-respondent knew that the document  was forged nor it could be said that he got the documents forged and  on the basis of this conclusion the learned Judge  came to  the conclusion that none of the two offences  i.e.  Sec. 467  read  with  Sec. 109 or offence under  Section  471  is established.     The  learned  counsel appearing for the  appellant  (the Bank)  contended that so far as receipt of the money on  the basis  of the withdrawal form from the Bank is concerned  it is  admitted  by  the respondent accused as  he  admits  his signatures  on  the back of the withdrawal  form  which  are signatures acknowledging the receipt of the money. 92     Both  the Courts (trial Court and the  appellate  Court) negatived  the defence that the money so collected from  the bank  by  the respondent was given over to P.W. 1  and  High Court also maintained that finding as it has not been  nega- tived.  He therefore contended that the following facts  are established and accepted to be established even by the  High Court:-                  (i)  that the withdrawal form did not  bear               the signatures of P.W. 1;                 (ii)  that  on the basis of  the  withdrawal               form  the  accused’respondent  withdrew  money               from  the bank from the account of P.W. 1  and               that                  (iii)  he  signed  the  acknowledgement  of               receipt of money and did not return the  money               to P.W. 1 but pocketed himself.

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   These  facts  therefore clearly establish that  the  re- spondent  accused used the forged document and on the  basis of that document obtained money to which he had no claim and thereby caused wrongful gain to himself and wrongful loss to P.W.  1. It is also clear from the evidence that P.W.1  used to take the assistance of the accusedrespondent whenever she wanted to have any transaction in the Bank and therefore  it is  expected of him to have known the signatures of  P.W.  1 Apart from it there is nothing to establish as to from where the  respondent-accused  got these withdrawal  forms.  Under these  circumstances  it could not be doubted that  he  used these withdrawal forms knowing them to be forged or at least believed  them  to be forged and therefore it could  not  be said  that  he could not be convicted for an  offence  under Sec. 471.     As regards the offence under Section 467 read with  Sec. 109, the learned High Court acquitted the respondent because it  came  to  the conclusion that there is  no  evidence  to establish  as to who forged the signatures of P.W. 1 on  the withdrawal  form.  It is no doubt true that so  far  as  the evidence  about the forgery of the signatures of P.W.  1  on the withdrawal form is concerned there is no evidence except the fact that the signatures are forged and the further fact that this withdrawal form was in the possession of  respond- ent-accused who presented it in the Bank and obtained  money therefrom and pocketed the same. From these facts an  infer- ence  could safely be drawn that it was  the  respondent-ac- cused who got signatures of P.W. 1 forged on this document 93 as it was he who used it to obtain money from the Bank  from the  account of P.W. 1 and pocketed the same It is no  doubt true  that there is no evidence as to who forged the  signa- tures of the withdrawal form but the circumstances indicated above  will lead to the only inference that it was  the  ac- cused-respondent who got the signatures of P.W. 1 forged  on the  withdrawal form. In this view of the  matter  therefore the acquittal of the respondent for an offence under Section 467 read with Sec. 109 also could not be justified.     It  is  unfortunate  that the State did  not  prefer  an appeal against the acquittal of the respondent under Section 408 and also under Section 420, even before this Court it is first the Bank which came by way of special leave but  later on the State has chosen to prefer an appeal.     In  the light of the discussions above, in our  opinion, the  appeal deserves to be allowed. It is therefore  allowed and  the acquittal of the respondent for offence under  Sec- tion 467 read with Section 109 and Section 471 of the Indian Penal  Code is set aside. Instead he is convicted for  these two  offences.  As there were three  items,  three  separate prosecutions were launched and ultimately three appeals were before  the  High Court and in each one  of  them  identical questions were involved. Consequently respondent is convict- ed  for the above mentioned two offences in each one of  the three cases and sentenced to 9 months rigorous  imprisonment for  each of the offences. But it is further  directed  that all the sentences shall run concurrently. P.S.S.                                                Appeal allowed. 94