IDEA CELLULAR LIMITED, HYDERABAD vs. THE COMMR OF INCOME TAX [TDS] HYDERABAD

.ar .G tr.la " HIGH COURT FOR THESTATE OF TELANGANA AT HYDERABAD TUESDAY,THE TWELFTH DAY OF APRIL TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE JUSTICE G SRI DEVI CRIMINAL REVISION CASE NO: 674 and 697 0F 2014 CRIMINAL REV SION CASE NO: 674 OF 2014 Criminal Revision Case under Section 397 and 401 of Criminal Procedure code 1973 against the Judgment dated 25-03-2014 passed in crl.A.No. 104 of 2009 on the file of the court of the Xl Additional District and Sessions Judge (FTC), Cyberabad at L.B.Nagar, R.R.District Preferred against the Judgment dated 31-0g-2009 passed in C.C.No. 2437 of 2005 on the file of the Court of the Vlll l\4etropolitan lVagistrate, Cyberabad, Ranga Reddy P.Venkata Laxmi Narsimha Rao, S/o. Rajendranagar, Rl/o. 1-5-1 1/2/8, Teachers Mandal, R.R.District. AND The S_tate of A.P, through PS., Rajendranagar, rept. by the public prosecutor, Hish court or A P ' Hvderabad nesporuo'e$f8Lo#DrXT^rrlrur CRLRCMP. NO: 1083 OF 2014 Counsel for the Petitioner : SRl. BOKARO SAPNA REDDY Counsel forthe Respondent': PUBLIC PROSECUTOR (TG) Between: Raju, Junior Assistant NIRD Colony, Budwel, Rajendranagar ..,PRTITIONER Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner (A2) on bail on any terms and conditions by suspending the Judgment and sentence in CC.No.2437 of 2006 of Vlll MM Cyberabad Rajendranagar as confirmed in Crl.A.No.98 of 2009 dt.25.O3.2014 on thefile of Xl Addl. D & S.J. R.R.District in Crime No, pending disposal of the above Revision Case.

--.--')- criminal Revision case under section 3g7 and 401 of criminar Procedure code 1973 against the Judgment dated 2s-03-2014 passed in crl.A.No. 98 of 2009 on the fire of the court of the Xr Additional District and Sessions Judge (FTC), Cyberabad at L.B.Nagar, R.R.District Preferred against the Judgment dated 31-0g-200g passed in c.c.No. 2437 of 2005 on the fire of the court of the VIil Metroporitan Magistrate, Cyberabad, Ranga Reddy . c INAL VISI ASE O: 697 201 cRLRCMP. NO:1132 F 2014 Petition under section 392 (1)of cr pc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to enlarge the petitioner on bail . Counsel for the Petitioner :SMT. S A V RATNAM Counsel forthe Respondents: PUBLIC PROSECUTOR (TG) The Court made the following: ORDER Between: 9gjjella Yadaiah, S/o RaFiah, aged 60 years, occ;SC Daftri, (Attender) NIRD SBH Extension co u nrer, ha;enorinagii,'n-"r.rcj. r +-i oo, Ni;;; ihi;;;i,-ij ro'wer, Rajendranagar, Ranga Reddi Districi: ...PETITIONER/APPELLANT/ACCUSED.3 ANO The State Of AP., rep byits public prosecutor, High court of A p Hyderabad. ...RESPONDENTi RESPONDENT/COMPLAINT Revision filed under section 3grt4o1 of crpc praying that in the circumstances stated in the affidavit filed in support of the criminalRevisioncase, the High court may be pteased toto set aside the Judgment tn crtn.No.toatzbbg on the file of the Xl Additionat District Judge (FTC) R.R.District dt. 25-3-201t;;d consequently acquit the petitioner for offence under sec 120-B of lpc ano pass.

HONOURABLE JUSTICE G.SRI DEVI CRL.R.C.Nos.674 and,697 of 201.4 COMMON IUDGMENT: Both tire Criminal Revision Cases are being c.lisposecl of by this common judgment since they are directed against the common judgment, dated 25.03.2014, passed in Cr1.A.No.98 of 2009 and Cr1.A.No.104 of 2009 on the file of the Motor Vehicle Accident Claims Tribunal-cum-Xl-Additional District and Sessions Judge (FTC), Ranga Reddy District. The revision petitioner in Crl.R.C.No.674 of 201.4 is A-2 and the revision petitioner in Crl.R.C.No.697 of 2014 is A-3. For the sake of convenience, they will be hereafter referred to as A-2 and A-3 respectively. The case of the prosecution is that the State Bank of Hyderabad has opened its Branch in the campus of National Institute for Rural Development (NIRD), Rajendranagar, for NIRD transactions through its account No.843. On 16'10.2002, A-"1 (Raghavendra) has opened an S.B. Account No.959 and R.D Account No.838 in S.B.H., NIRD Extension Counter, Rajendranagar, without

2 his photograph with the active connivance of A-2 and A-3, who were working as Junior Assistant and Attender respectively in the said branch (revision petitioners herein). A-4 has allowed opening the account of A-1 without observing any bank rules and norm!. A-1 was introduced as Civi-l Contractor of NIRD by A-3' An amount Rs.13,92,000/- was credited to the savings bank account of A-1 through four cheques bearing Nos.765675, dated 16.10.2002; 755674, dated 24.10.2002; 765678 dated 13.L1.2002 and 765677 dated 24.12.2002 frorn NIRD Account No.843 and that A-1 has withdrawn an amount of Rs.13,82000/- from his S.B. Account No'959 through nine cheques vide Nos.757621 dated 16.10.2002; 757623 dated 25.1.0.2002; 757 624 dated 26.10.2002; 757652 dated 26.10.2002; 757 626 d ated 26.1.0.2002; 7 57 629 dared 13. 1 1. 20 02; 7 57 630 dated 15. 1 1.2002; 757632 dated 26.1.0.2002 and 757633 dated 04.01.2003. A-4 has passed two cheques and A-7 has passed another two cheques that were credited from Account Nos. 843 to 959 of A-1 for an amount oI Rs.13,92,000/- without any verification. Subsequently, A-1 has withdrawn an amount of Rs.13,82000/- from his S.B. Account No.959, where A-4 has passed six cheques, A-7 has passed three cheques, and A-8 has passed one cheque of A-1. From this amount,

l Rs.4,02,000/- has been withdrawn by A-3 on behalf of A-1 on 26.12.2002. The NIRD employee and the bank officials i.e., A-3 to A-8 were colluded with A-1 and conspired to cheat the SBH, NIRD Extension Counter by forging the sigrratures and misappropriated the huge amount of Rs.13,92,000/-, thereby the SBH, NIRD Extension has reimbursed an amount of Rs.13,92,000/- to NIRD on 30.04.2003 due to their negligent acts. Hence, A-1 has committed the offences punishable under Sections 420 and 468 of I.P.C.; A-2 to A-8 have committed the offences punishable under Sections 420, 409, 468,471, and 1208 read with Section 34 of I.P.C. After completion of investigatiory the Police filed charge sheet against A--l to A-8 for the aforesaid offences, which was taken cognizance as C'C.No.2437 of 2005 against A-2, A-3, A-5 to A-8 and the case against A-1 and A-4 was split up vide C.C.No.492 of 2006 as they were absconding. On appearanc e of A-2,A-3, A-5 to A-8, separate charges rinder Sections 120B and 406 ol I.P.C. were framed, read over and explained to them, to which they pleaded not guilty and claimed to be tried.

4 The prosecution, in order to prove its case, examined P.Ws.1 to 13 and got markecl Exs.P1 to P56. No lvitness was examined on behalf of the accused, however, Ex.D1 was marked. After closure of the prosecution evidence, A.2, A-3 and A-5 to A-8 were examined under Section 313 Cr.P.C. The trial Court, on appraisal of entire evidence both oral and documentary, held that the prosecution has proved its case against A-2 and A-3 for the offence punishable under Section 1208 of I.P.C. and accordingly convicted and sentenced them to undergo rigorous imprisonment for a period of six months each and to Pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for a period of one month each. However, the trial Court acquitted A-2 and A-3 for the offence punishable under Section 406 of I.P.C and A-5 to A-8 for the offences with rvhich they were charged. Challenging the conviction and sentence, A-2 filed Cr1.A.No.98 of 2009 and A-3 filed Cr1.A.No.104 of 2009. By its common judgment, dated 25.03.2014, the learned XI Additional District and Sessions Judge (FTC), Ranga Reddy District, dismissed both the aPpeals and confirmed the conviction and sentence imposed against A-2 and A-3' Aggrieved

5 by the same, A-2 and A-3 preferred the present Criminal Revision Cases. Heard both sides and perused the entire material available on record. Learned Counsel appearing for A-2 would submit that there is no incriminating evidence against A-2 in the charge sheet nor is any speci{ic instances alleged and proved in support of the allegation under Section 1208 of I.P.C. and even none of the prosecution wikresses deposed as against A-2 and as such he is entitled for acquittal. It is further submitted that the departmental enquiry for the similar charges against A-2 resulted in exoneration of A-2 from the charges and thereby the Courts below ought to have acquitted A-2; that both the Courts below ought to have appreciated that A-2 was made a scapegoat in the case linking the allegations to him which are not estab'lrshed even from the remote evidence. It is further submitted that Ex.P28 standard writings of A-2 is not compared with any other documenti that the conviction on surmises and conjectures is bad, illegal and absurd against all canons of criminal jurisprudence and that the conviction as arrived at by the

6 Courts below is not based on the evidence of P.W.1 and P.W.2 which is contradictorv to each other and as such the same is liable to be set aside. The learr-red Counsel for A-2 relied upon the following judgments: 1-. B.H.Narasimha Rao a. Gooernment of A,P.I 2. Subramanian Swamy o. A.Raja2 3. Rajia Kurnar o. State of Uttar Pradesh anil anothetts 4. State of Maharashtra anil others. o. Somnath Thapa anil otherca 5. Eirozuedilin Basheeruililin and others o. State of Keralas 6. State (N.C.T, of Delhi) o. N aoj ot Sandhu6 7. State through Supdt. Of Police, CBUSIT zt. Nalini anil otherc7 Learned Counsel appearing for A-3 would submit that the Courts below ought to have acquitted A-3 for the offence under Section 120F* of I.P.C. as he was acquitted for the offence under Section 406 ol'l.P.C. It is furtirer submitted that the appellate Court has con{irmed the conviction on the ground that A-3 had introduced A-1 for opening the S.B. Account, however, it is not the case of the prosecution that A-3 being the employee of the Bank should not AIR 1996 SC 64 (2012) 9 SCC 25? (2017) 8 SCC 791 ( 1996) 4 SCC 6s9 (200r) ? SCC 596 ArR 2005 SC 3820 (1999) s SCC 253 I 2 3 5 o '|

7 introduce customers to the Bank to open the account as per the service conditions of the Bank. The prosecution has failed to establish that introducing a customer to open the bank account attracts penal provision as per the service conditions of the SBH. It is further submitted that the appellate Court ought to have seen that whether the SB Account was opened with photo or without photo is not the concern of A-3 and it is not his duty to verify whether the application is in the prescribed format or not. The appellate Court ought to have seen that the prosecution had not proved that depositing the amount in the account of the customer at his request by signing on the pay-in- slip is conlrary to the service conditions of the bank and it attracts penal provision. It is further submitted that the appellate Court ought to have seen that prosecution has failed to establish that withdrawing the cash on behalf of the account holder by signing on the back side of the cheque at the instructions of the account holder is an offence as per the service conditions of the SBH. The appeilate Court ought to have seen that when A-3 is not part of criminal breach of trust within the meaning of Section 406 of I.P.C. he is also not guilty of the offence under Section 1208 of I.P.C.

8 Learned Assistant Public Prosecutor appearing for the respondent/State would submit that the documents containing the standard and questioned signatures of A-2 and A-3 were sent to the Expert and that the report of the Expert and the oral and documentary evidence on record connect A-2 and A-3 for the offences with which they were charged. He further submits that it is evident from the evidence of P.W.5 that A-3 has withdrawn an amount of Rs.3,00,000/- and later remitted the same and as such the prosecution has proved its case beyond all reasonable doubt against A-2 and A-3. He further submits that the Courts below, after considering the oral and documentary evidence, have rightl.y found the revision petitioners/A-2 and A-3 guilty for the offence punishable under Section 1208 of I.P.C. by assigning cogent reasons. P.W.1, the then Financial Advisor and Pay and Accounts Officer of NIRD, categoricaily stated in his evidence that the Accounts Officer and Cashier are the custodians of cheques and responsible for transaction regarding the cash and A-2, who was working as t,.D.C. at the relevant point of time, assisted the cashier. He further stated that there is no office order to show that A-2 was concerned u'ith the cheque books or requisition slips. P.W.2, the

9 then Senior Accountant at NIRD, stated that A-2 was an employee of NIRD, whereas A-3 and ,4.-6 were the employees of SBH Extension Counter, NIRD and on17.04.2003, P.W.1 informed him that a cheque issued from NIRD was not being honoured by SBH bank for want of funds and that he asked him to accomPany him to SBH and accordingly he along with P.W.L went to SBH Extension Counter, NIRD, and on verification, he came to know about the fraud of Rs.13.92 lakhs under Exs.P1 to P4. However, his evidence did not support the case of the prosecution or any suspicion against A-2. He categorically stated that the reconciliation statements are being sent every month by the bank, however, he did not state as to how the amounts were withdrawn from October to December, 2002. However, P.W.3, who was working as cashier at NIRD, has not supported the case of the prosecution and has been declared hostile by the prosecution. P.W.4, the then in charge Manager, SBH Extension Counter, NIRD, has stated that on17.04.2003 he received a cheque No.733831 dated 31.03.2003 of Account No.893 for Rs.4,27,930/- for crediting the amount to Income Tax Department and on verification, he found that there was balance of Rs.89,000/- in the account and as such he

10 informed the same to tl're Adminiskative Officer, who came and obtained the statement of account, and thereafter he came to know that an amount of Rs.13.92 lakhs was credited to the account No.959 through forged cheques. The evidence of P.W.5, who was deputed to work in SBH Extension counter, is that on 28.12.2002 he came to know that A-3 has withdrawn a sum of Rs.3.00 lakhs from the account of A-1 and thereafter the same was remitted into the bank account. P.W.6, the then Chief Manager, SBH, Rajendra Nagar Branch, stated in his evidence that in the year 2003, he came to know about insufficiency of amount in Account No.843 to honour a cheque for Rs.4,27,930/- and as such he rushed to the Extension Counter and on verification he found that an amount of Rs.13.92 lakhs was fansferred from Account No.843 to 959 of .4-L through four or five cheques and that he came to know that on the introduction by A-3, the account of A-1 was opened in the bank. He further stated that on verification of records, lt came to light that one A.V.Ramana (P.W.7) issued requisition siip for issuance of cheque book. However, it has come in the evidence that the said cheque book was

11 not entered into the cheque book issue register at the relevant point of time. He further deposed that on 26."12.2002, A-3 collected a sum of Rs.4.00 lakhs from the Account No.959 of A-1 and when A-1 did not tum up for receiving the amount and when the Officer-in-charge of Branch, NIRD, infornied him about the drawing of amount by A-3, he inskucted the officer to collect the amount from A-3 and accordingly, the amount was collected from A-3 and kept the same in the joint custody to be handed over to A-1.. He further deposed that on 27.12.2002, A-5, who was in charge of the Bank, entrusted the amount of Rs.4.00 lakhs to 4-6, who in turn handed over the same to A-1. He further stated that A-3 collected a sum of Rs.5,000/- from the account of A-1 by presenting Ex.P18-Cheque, however, according to this witness, the said cheque bears the signatures of A-1 and A-3. He further stated that the said sum of Rs.5,000/- was also remitted to the bank account. P.W.7, the then Accounts Officer of NIRD, stated that he verified the requisition slip and found that the sigrrature contained on the requisition slip was not that of him, which goes to show that the evidence of P.Ws.7 is quite contrary to the evidence of P.W.6 in respect of signature appearing on the requisition slip for issuance of

12 cheque book. Thus, according to this witness, there is no evidence on record as to who has given the requisition slip for issuance of cheque book. P.W.8, the then Chief Manager, Vigilance Department, SBH Head Office, Hyderabad, stated in his evidence that during his enquiry, it was revealed that a sum of Rs.13,92,000/- was credited to the account of A-1 under Exs.P1 to P4 and the requisition slip for issuing o{ cheque book in question was said to have been sigred by P.W.7. However, the same was categorically denied by P.W.7 and that too the said requisition slip was not sent to Handwriting Expert for comparison. He deposed that in his enquiry report he concluded that A-3 can be suspected for opening of the account in the name of A-1 without following the procedure "Know Your Customer", however he categorically stated that he did not verify the specimen signatures of the two accounts of A-1 to confhm whether they are one and the same and that he does not know whether, on the date of commission of offence, A-5 was having any Power to pass the cheque for Rs.25,000/- or not.

13 That apart P.W.8, in his Fnquiry report under Ex.P6, observed that the safe custody of the cheque books/requisition slips was not paid due importance by the bank officials. He further stated that when an high value cheque was presented into a newly opened account, the official concemed was not alert and he was misled by the introduction given by the sub-staff of the Extension counter and has not enquired into any antecedents of the account holder, thereby abdicated his responsibility. He further stated that the procedure for opening new accounts was flagrantly violated and he gave opinion that the action of A-3 giving introduction to A-1 for opening the bank account, receiving an amount of Rs.5,000/- under Ex.P18 and Rs.4.20 lakhs under Ex.P12, gives scope for suspecting a foul play on his part. The prosecution failed to produce the final report of the departmental enquiry in support of the oral and documentary evidence. However, the trial Court has misread the entire evidence available on record and came to the conclusion that A-3 cannot plead ignorance or being lack of knowledge as per the explanation grven by him in his examination under Section 313 Cr.P.C., as P.W.1 has stated that he came to know that P.W.7 issued requisition slip for issuance of cheque book.

11 Further, P.W.13, the then Sub Inspector of Police, Raiendranagar Police Station, has categorically stated in his cross examination that there was no signature of A;] 9n the requisition register for getting the cheque book. He admitted that he did not send Ex.P28-Standard writings ol A-2 for comparison. He also admitted that A-2 was working as L.D.C-cum-Typist in NIRD Accounts Department and there was no office order to show that A-2 was the custodian of the requisition slips. He further admitted that no reasons have been assigned in the complaint for the delay in Iodging the compiaint on 24.04.2003. A perusal of the entire evidence on record, it is evident that A-1 and A-4, who are the main conspirators behind the scheme, are not yet arrested by the prosecution for the reasons best known to them. Charges under Sections 1208 and 406 of I.P.C. were framed against the revision petitioners/A-2 and A-3 as well as A-5 to A-8. The trial Court acquitted A-5 to A-8 for both the offences and the revision petitioners/A-2 and A-3 for the offence under Section 406 of I.P.C. as there was no evidence against them and that the said finding was confirmed by the appellate Court. However, both the Courts beiow found the revision petitioners/A-2 and A-3 guilty of

15 the offence punishable under Section 1208 LP.C. The case of the prosecution is that A-1 has opened an S.B. account and R.D. account in S.B.H., NIRD Extension Counter, Rajendranagar, without his photograph, with the active connivance of the revision petitioners/A-2 and A-3, who were working as Junior Assistant and Attender respectively in the said bank. The allegation against A-3 is that he has introduced A-1 for opening the bank account. The prosecution has faiied to establish that introducing a customer to open the bank account athacts penal provision as per the service conditions of the bank. Hence, the Courts below cannot come to a conclusion that since A-3 has intloduced A-1 for opening the bank account and his signatures were appeared on Exs.P12 and P18- Cheques along with A-1, he hatched a conspiracy with A-1 for withdrawal of an amount of Rs.13.92 lakhs, as alleged by the prosecution. In other words, there is no concrete evidence on record that with whom A-2 and A-3 hatched a conspiracy either for obtaining the cheque book or for withdrawal of any amount from the account of A-1 through the disputed four cheques. There is absolutely no evidence on record to show that in whose custody all the four

16 cheques were found. The Courts below have failed to appreciate the evidence on record that there was an inordinate delay of four to five months in lodging the F.I.R. It is the case of the prosecution witnesses that they have not verified any reconciliation statements immediatety after the monitory transactions, which was mandatory as per the Rules. However, basing on the explanation given by A-3 and the unstabie evidence adduced by the prosecution witnesses, the Courts below came to the conclusion that the incriminating material available on record establishes the offence under Section "1208 ol I.P.C. against A-2 and A-3 and accordingly convicted them for the offence punishable under Section 1208 of I.P'C. Further, a perusal of the entire evidence on record, it is evident that there were serious lapses in opening of the bank account of A-L, passing of cheques of high value and safe custody of cheque book etc., Therefore, there is absolutely no evidence against the revision petitioners/A-2 and A-3 and the findings recorded by the trial Court, which were upheld by the appellate Court, are erroneous/ Perverse and illegal and as such they are liable to be set aside. Accordingly,,. both the Criminal Revision Cases are allowed' The conviction and sentence of imprisonment imposed by the trial

t7 Court as affirmed by the appellate Court for the offence punishable under Section 1208 of I.P.C. are hereby set aside and the revision petitioners/ A-2 and A-3 are acquitted of the said offence. Fine amount, if any, paid by the revision petitioners/ A-2 and A-3 shall be lefunded to them. The bail boncls of the revision petitioners/A-2 and A-3 shall stand cancelled. Miscellaneous petitions, if any, pending shall stand closed. Sd/.K.SREENIVASA RAO jorr,rtw;lsrRAR \ To, ,TRUE COPY// SECTION OFFICER 1. The Xl Additional District and Sessions Judge (FTC)' Cyberabad at L.B.Nagar, R.R.District. 2. TheVlll Metropolitan Magistrate, Cyberabad, Ranga Reddy. 3. Two CCs to Public Prosecutor, High Court for the State of Telangana, at Hyderabad [OUT] 4 One CC to SRl. BOKARC,'SAPNA REDDY Advocate [OPUC] 5. One CC to SMT. S A V RATNAM Advocate IOPUC] 6. Two CD Copies 7. One Spare Copy CDL

: HIGH COURT DATED:1210412022 COMMON ORDER CRLRC.No.674 and 697 of 2014 I ALLOWING THE CRL.R.C. lA *