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Indian Overseas Bank vs Harmit on 5 March, 2009

Punjab-Haryana High Court
Indian Overseas Bank vs Harmit on 5 March, 2009
Crl.Rev.No.691 of 1997                                                [1]

IN THE HIGH COURT OF PUNJAB                           AND HARYANA AT
               CHANDIGARH.



                                          Criminal Revision No.691 of 1997

                                          Date of Decision: 5 - 3 - 2009



Indian Overseas Bank                                           .....Petitioner


                                   v.



S. Radhakrishanan                                              .....Respondent



CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA


                                   ***

Present:      Mr.Varun Sharma, Advocate
              for the petitioner.

              None for the respondent.


                                   ***


KANWALJIT SINGH AHLUWALIA, J. (ORAL)

S. Radhakrishnan, Gandhi Kumar and S. Sahi Nath @ A. Yusuf

@ C.P.Nagrajan were tried by the Court of Judicial Magistrate Ist Class,

Gurgaon in a case arising out of FIR No.74 dated 16.2.1982 registered at

Police Station City Gurgaon under Sections 420,468,467,109,

471,409,411,419, 120-B IPC.

The learned trial Court convicted and sentenced S.

Radhakrishnan and S.Sahi Nath @ A.Yusuf @ C.P.Nagrajan for various
Crl.Rev.No.691 of 1997 [2]

offences. However, accused Gandhi Kumar was acquitted. S.

Radhakrishnan and S.Sahi Nath @ A.Yusuf @ C.P.Nagrajan had filed an

appeal. Same was heard and decided by Additional Sessions Judge,

Gurgaon. The Appellate Court accepted the appeal preferred by S.

Radhakrishnan. However, appeal of S. Sahi Nath was dismissed.

The present revision petition has been filed by the complainant-

Bank against acquittal of S. Radhakrishnan.

Against the acquittal of S. Radhakrishnan, no State appeal has

been filed.

Co-accused S. Sahi Nath who was convicted, had filed

Criminal Revision No.88 of 1997 wherein his revision petition was

dismissed but the sentence awarded was reduced. Order of reduction of

sentence passed by the Co-ordinate Bench read as under:-

“Heard.

No ground to interfere in the concurrent finding recrded

by the Courts below.

Alternative submission which was raised by the learned

counsel for the petitioner is that this Court may treat the

petitioner with leniency in the matter of sentence which

according to him is on the highly excessive side. Learned

counsel for the petitioner further submitted that the accused in

this case is suffering agony of the trial since 1982. The

alternative submission of the learned counsel requires

consideration on the part of this court. Keeping in view the

totality of the circumstances of the case, the substantive

sentence awarded to the petitioner is hereby reduced from 5
Crl.Rev.No.691 of 1997 [3]

years to 2½ years. With the above modification in sentence,

the revision stands dismissed. All concerned be informed.”

In the present case, the FIR was registered on the basis of

written complaint instituted by K.C.Yadav, Manager of Indian Overseas

Bank. A perusal of the complaint show that one S.Sahi Nath came to Indian

Overseas Bank Branch at Old Railway Road, Gurgaon on 17.11.1987. He

remitted a sum of Rs.2,40,000/- and got two FDRs worth Rs.1,20,000/- each

prepared. S.Sahi Nath projected himself to be one who has come from

South India to commence business of real estate at Gurgaon. Against two

aforesaid FDRs, loan of Rs.1,80,000/- was obtained. The accused made the

bank officials believe that large remittances from Banglore as well as

Madras will be received as he is agent of real estate company of repute. A

credit advice dated 4.12.1981 for Rs.2,75,000/- was received from one of

the branch of the Bank at Madras. The amount was adjusted and balance

amount of Rs.93,887.90 was credited to the saving bank account. The

amount of Rs.93,800/- was withdrawn and by depositing Rs.6200/-, another

FDR of Rs.One lac was got prepared. Against the FDRs of Rs.3,40,000/-,

again loan to the extent of Rs.2,35,000/- was raised by S. Sahi Nath. On

22.12.1981, the Bank again received a credit advice from Jaya Nagar

Branch at Banglore. Lateron the amount was adjusted. Balance amount

was put in the Saving bank account. This modus operandi was practiced

and amount was credited in the account of S. Sahi Nath on 13.1.1982. He

withdrew a sum of Rs.31 lacs and on 3.2.1982 an amount of Rs.1,75,000/-

was also withdrawn. When the Bank sought the confirmation of the credit

advice, correspondence was exchanged and later it dawned upon the bank

officials that no amount was ever remitted by the Banks from Madras or
Crl.Rev.No.691 of 1997 [4]

Banglore. Thus, the accused were put to trial.

As stated earlier, the revision petition filed by S. Sahi Nath

was dismissed. His conviction was maintained by this Court while

exercising revisional powers and sentence was reduced. The Appellate

Court below has meticulously adjudged the evidence and had acquitted

S.Radha Krishnan. Para 8 of the Appellate Court judgment, whereby

acquittal of S.Radhakrishnan was recorded read as under:-

“8. The case against Radha Krishanan

In order to connect the accused Radha Krishanan with

the present crime, the trial court has relied upon the testimony

of the bank official PW2 to PW9 and also the statement

recorded under section 164 Cr.P.C. of one Mohinder Kumar.

The recovery of Rs.1,60,000/- from the house of Gandhi

Bhatnagar has not been relied upon by the trial court for

connecting the present accused Radha Krishanan with the

offence. The trial court came to the right conclusion that the

said recovery in no way could connect the accused with the

present offence. The version of recovery had not been proved

by creditable evidence and even otherwise, the money

recovered was shown to belong to Barari Branch of the Indian

Overseas Bank. The other conclusion of the trial court by

which it held Radha Krishanan guilty on the basis of the

remaining evidence is not acceptable. The testimonies of PW2

to PW9 is not sufficient to prove the case of the prosecution

beyond all reasonable doubts against accused Radha Krishanan.

All these witnesses have only stated that on 3.2.82, Radha
Crl.Rev.No.691 of 1997 [5]

Krishanan had come to the bank and after him Sahi Nath had

also reached the bank on that day, Sahi Nath had withdrew

Rs.1,75,000/- and it was the last transaction. There-after, the

accused did not turn up to operate the said account. PW3 has

further stated that he had seen both of them sitting together

before C.K.Kohli Accountant. PW4 states that he had heard

both of them discussing something in some other language

which he thought was Tamil. Similarly, PW6 and PW7 also

state that they had seen both of them talking to each other.

PW9 SL Sagar, Assistant Manager IOB has stated that in the

month of January and February 1982, he was additional officer

of IOB Barari District Mathura. Radha Krishanan was then the

branch manager. The credit schedules Es.P12 and Ex.P36

relate to Mathura Main Branch of IOB. He further states that

their branch at Barari was also collecting stationery from the

Mathura main branch of IOB. In cross-examination, this

witness submits that the credit schedules do not remain in the

custody of any particular person and remain lying in the open.

The statement of Mohinder Kumar was recorded under

Section 164 Cr.P.C. By Shri R.P.Bajaj, the then Addl.CJM,

Gurgaon. Shri Bajaj has appeared as PW13 and deposed that

on 21.4.82, he had recorded the said statement of Mohinder

Kumar. The prosecution has pressed forward the said statement

in an attempt to show that the relevant credit schedule bearing

serial nos.705401 to 705700 had been handed over to accused

Radha Krishanan by the main branch at Mathura. However, the
Crl.Rev.No.691 of 1997 [6]

said evidence can not be relied upon. Shri Mohinder Kumar

was never examined as a witness. In absence of the same the

said statement under Section 164 Cr.P.C. can not be used as

evidence in the case. The counsel for defence has rightly relied

upon 1972 Criminal Law Journal 267 Ram Kishan vs. Harmit

Kaur where the Supreme Court laid down that a statement

under Section 164 Cr.P.C. is not a substantive evidence. It can

be used only to corroborate the statement of witnesses or to

contradict him. It was also rightly argued that even if, it is

accepted that the credit schedule was handed over to Radha

Krishanan accused, still it can not be presumed that he was the

person who had forged the said credit schedules. There is no

evidence on the file to show that Radha Krishanan or as a

matter of fact any other manager is supposed to keep under lock

and key, the said credit schedules. Rather their own witness

PW9 has admitted that the said credit schedules remain lying in

the open and are not kept in the exclusive custody of any

person. The said credit schedules were within easy access of

all the employees of the bank. Merely on the basis of the

presence of Radha Krishanan in Gurgaon Branch on 3.2.82 can

not be considered as a sufficient material, to connect the

accused with the present crime. On the basis of the said

evidence, it can not be said that the case against the accused has

been proved beyond all reasonable doubts. However, strong

may be, the suspicion, it can not take the place of proof. So the

judgment of the trial court holding the accused Radha
Crl.Rev.No.691 of 1997 [7]

Krishanan guilty is set aside and the conviction and sentence of

accused Nagrajan is sustained.”

No fault can be found with the reasoning given by the

Appellate Court below. In view of the peculiar facts and circumstances of

the case, this Court has already exercised revisional jurisdiction while

disposing off Criminal Revision No.88 of 1997 and the sentence awarded

upon S. Sahi Nath was reduced. This Court would be hesitant to re-

appreciate and do re-appraisal of the evidence when the findings of the

lower Appellate Court are not perverse.

This Court had noticed the entire legal position regarding the

powers vested in this Court while deciding criminal revision against

acquittal. This Court had passed a judgment in Mohinder Singh v. Mehar

Singh & others, Criminal Revision No.648 of 1996, decided on 18.2.2008.

In Mohinder Singh’s case (supra), this Court relied upon a judgment of

Hon’ble Apex Court in Mahendra Partap Singh v. Sarju Singh and

another, AIR 1968 SC 707. In Mahendra Partap Singh’s case (supra)

Hon’ble Apex Court relied upon D.Stephens v. Nosibolla, AIR 1951 SC

196. Hon’ble Apex Court further in Akalu Ahir v. Ramdeo Ram, AIR

1973 SC 2145, Bansi Lal and others v. Laxman Singh, (1986)3 SCC 444,

Ramu alias Ram Kumar and others v. Jagannath, 1995 SCC(Cri) 181,

Vimal Singh v. Khuman Singh and another, (1998) SCC(Cri) 1574 and

Bindeshwari Prasad Singh v. State of Bihar, AIR 2002 SC 2907 has held

that powers of the revisional Court are not to be exercised in case of

acquittal until or unless, the judgment of the trial Court is perverse or is

based on grave legal error. In present case, accused-respondent had been

acquitted by the trial Court after appreciating the evidence. Revisional
Crl.Rev.No.691 of 1997 [8]

Court is not to re-appreciate and do re-appraisal of the evidence. Therefore,

there is no other option but to dismiss the present revision petition.

For the reasons stated above, the present revision petition is

dismissed.

( KANWALJIT SINGH AHLUWALIA )
March 5, 2009. JUDGE

RC

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