Koshal, J. - (1.)This appeal by special leave is directed against the judgment dated 31st Jan. 1972 of the Gujarat High Court setting aside the acquittal of the appellant for an offence under S. 409 of the I. P. C., convicting him thereof and sentencing him to rigorous imprisonment for six months and a fine of Rs. 3000/-, the sentence in default of payment of fine being rigorous imprisonment for one month.
(2.)The case arises out of the affairs of a Co-operative Society named Dhrangadhra Nargrik Sahkari Bank Limited, Dhrangadhra, (hereinafter referred to as the Bank), into which a probe was held at the instance of the Government of Gujarat in the year 1966 through the police who ultimately prosecuted three persons in the court of the sessions Judge Surendranagar. The charge against the three accused was that during the period between the 25th Sept., 1957 and the 31st May 1958, they committed criminal breach of trust in respect of a total sum of Rs. 23,200/- over which they had dominion and which was in their possession as banker. The breach of trust complained of was said to have been committed in pursuance of a conspiracy entered into by the three accused who were charged with an offence under S. 120-B read with Section 409 of the I. P. C. In the alternative they were charged for an offence under S. 409 read with S. 34 of the Code or one under S. 409 aforesaid simpliciter. The trial ended in an acquittal of all the three accused of the charge in its entirety. The judgment of the learned Sessions Judge was upheld by the High Court in an appeal instituted by the State of Gujarat except in relation to one item of Rs. 2000/- which was found to have been the subject-matter of a breach of trust by the appellant, who was convicted and sentenced as aforesaid.
(3.)The offence under Section 409 of the I. P. C. found by the High Court to have been brought home to the appellant pertained to a transaction which took place at the Bank on the 3rd Dec. 1957, when a sum of Rs. 2000/- was debited to the account of Parmanand Acharya (P. W. 2 and hereinafter called Acharya) on the basis of five documents (Exhibits 46/1-5) which purport to evidence the receipt by the letter of the said sum by way of loan and each of which purports to bear his signature. Document Ex. P. 46/1 is an application of a loan of Rs. 3000/- by Acharya. Document Ex. 46/2 is a Kabulyat (acknowledgement) in respect of the receipt of the sum of Rs. 2000/- by Acharya as a loan. This Kabulyat bears the attestation of two marginal witnesses named Gokuldas and Punjara Rasiklal Gopalji. It further bears an endorsement by Harihar Maneklal and Babubhai Chhaganlal Pancholi who undertook the responsibility for the repayment of the loan as sureties. Still another endorsement appearing on the Kabulyat and said to bear the signature of the appellant speaks of the identification of Acharya as a person known to the appellant. Document Ex. 46/3 is a demand pro-note which is again attested by the two marginal witnesses above named. Document Ex. 46/4 is a payment voucher authorising the Bank to debit the sum of Rs. 2000/- to Acharya's account. Document Ex. 46/5 is another voucher directing the Bank to credit a sum of Rs. 10/- in the compulsory savings account of Acharya opened on that very day.
According to the prosecution, Acharya was not in the picture at all and either somebody impersonated him at the instance of the three accused or the signatures of Acharya on the various documents were otherwise forged so that the amount of Rs. 2000/- was either paid to the impersonator for the benefit of himself and the three accused or was embezzled by the three of them without a fourth person being made to participate in the embezzlement.