JUDGMENT 2004 Supp(1) SCR 601 The Judgment was delivered by : K. G. BALAKRISHNAN The appellant herein was tried for offence punishable under Sections 419/420/468/471 IPC by the Judicial Magistrate, 1st Class, Jamshedpur, Singhbhu. He was found guilty by the Magistrate for the offence punishable under Section 420 IPC and was sentenced to undergo imprisonment for a period of three years. The appellant filed an appeal before the Sessions Court challenging his conviction and sentence. The appellate Court converted the conviction of the appellant from Section 420 IPC to a conviction under Section 420/109 IPC, however, the sentence was maintained and appellant filed a revision before the High Court, though his revision petition was dismissed, the sentence of imprisonment was reduced to the period of six months. Aggrieved by the same, the present appeal is filed.
The appellant was a businessman in Jamshedpur. On 26.5.1972, one Loknath Acharya wanted to open a current account with the Central Bank at Jamshedpur. The appellant being holder of a current account in the same bank. Loknath Acharya sought assistance of appellant for introduction to the said bank. Appellant is said to have signed a form by which he purported to have introduced Loknath Acharya to the Bank. Loknath Acharya continued to operate his current account and on 30.10.1972, he presented three demand drafts, one for Rs. 32, 100/-, second for Rs. 78.600/- and another for Rs. 90, 300/- After the presentation of these demand drafts the said Loknath Acharya by a self cheque withdrew Rs. 27, 000/-. Later, he presented another self cheque for Rs. 1, 40, 000/- to be withdrawn from the Bank. Thought the cheque was passed, the Manger smelt a rat and directed the officer incharge of the Current Deposit Account to verify the drafts. The accountant incharge found certain irregularities and he suspected the genuineness of the drafts. The Manager stopped the payment of cheque of Rs. 1, 40, 000/- and sent a telegram to the Srinagar branch of this Bank wherefrom these drafts were issued. Reply was received from the Srinagar branch that no such drafts were ever issued. The Manager searched for the Loknath Acharya and it seems that by the time he disappeared. The Manager filed a complaint before the police station alleging that Loknath Acharya and the appellant who introduced him to the Bank for starting the current account and also one M. B. Chowdhury a bank employee as parties to a fraud and cheating and it was alleged that money was illegally withdrawn from the Bank. On the basis fo the complaint the police registered a case under Section 420 IPC and other allied offence against these three persons. Loknath Acharya could not be apprehended and remained as absconding and appellant and M. B. Chowdhury faced the criminal trial.
On behalf of the prosecution three witnesses were examined, PW-1 was the Manager of the Bank, PAW-2 was accountant of the Central Bank at the relevant time and PW-3 is another regional Manager of the Central Bank the investigation officer was not examined. A defence witness was also examined at the instance of the co-accused M. B. Chowdhury who was acquitted by the appellate court.
We heard learned counsel for the appellant and also the counsel for the state.
The counsel for the appellant contended before us that there is absolutely no evidence produced by the prosecution to show that the present appellant committed any offence punishable under law. It is argued that the appellant had introduced Loknath Acharya to start current account in the Bank and there is no evidence to show that he had any point of time acted in collusion with Loknath Acharya to commit any fraud. It was also submitted that introduction of the appellant in connection with Loknath Acharya to the Bank was on 26.5.72 and the cheque for Rs. 27, 000/- withdrawn by Loknath Acharya only in the month of October, 1972 and there is no evidence to show that the appellant had any business connection or collusion with Loknath Acharya. We perused the evidence produced by the prosecution and there is nothing on record to show that appellant was in any way related to the fraud committed by Loknath Acharya on the Bank. The prosecution did not even produce the form in which appellant had signed for introducing Loknath Acharya for starting a current account with the Bank. The evidence of three witnesses also does not show any complicity by the appellant in committing any act to cheating. The appellant had introduced Loknath Acharya to the Bank only for opening an account and that by itself does not spell out any fraud or cheating.
There is no evidence to show that the present appellant instigated Loknath Acharya to present bogus drafts before the complaint Bank. It is also not correct to say that appellant was in anyway responsible for the loss sustained by the Bank. When the bank passed the cheque for Rs. 27, 000/- at a time when the account holder Loknath Acharya had no sufficient money in his credit. They acted on the bogus drafts given by him. For which the appellant who had introduced the account holder about six months back cannot be made liable for commission of offence of abetting office of cheating.
The trial court as well as the appellate court committed serious error in finding the appellant guilty of judgment of the trial court, Sessions Court and the judgment of the High Court and acquit the appellant of the charge of Section 420/109 IPC. The bail bonds shall stand discharged. The appeal is allowed.