SHAM SUNDER,J. - (1.) THIS appeal is directed against the judgment of conviction, and the order of release of the accused (now appellants), on probation, dated 09.12.1997, rendered by the Special Judge, Ambala, vide which he convicted the accused, for the offences, punishable under Sections 120-B and 477-A of the Indian Penal code (hereinafter called as 'the IPC' only) and released them on probation of good conduct, under Section 4 of the Probation of Offenders Act, 1858, for a period of one year each, on furnishing personal bond in the sum of Rs. 5000/- each with one surety, in the like amount each. They were also directed to pay costs of proceedings to the tune of Rs. 3000/- each. They were, however, acquitted for the offence, punishable under Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act, 1947.
(2.) THE facts, in brief, are that Balwant Singh (since deceased), Branch Manager of the State Bank of Patiala, Kalka, along with other accused, at the relevant time, employees of the said bank, entered into a criminal conspiracy. In pursuance of the aforesaid conspiracy, Balwant Singh (since deceased ) received a cheque dated 28.12.1978 for Rs. 10.00 lacs, issued by Ram Kishan Bairagi, Chairman, Haryana Housing Board, Chandigarh, drawn at State Bank of India, Sector 22, Chandigarh, for the purpose of issuing five term deposit receipts of Rs. 2.00 lacs each, in favour of Haryana Housing Board Payable on 26.03.1979. He, however, after encashment of the said cheque, from State Bank of India, on 1.1.1979, credited Rs. 2,95,505.14 Ps in cash credit account of M/s. Nardev Saw Mills. He also credited some amount in the name of other firms, belonging to Bhagat Singh, accused. He prepared five FDRs, and sent the same to the Housing Board, without opening their accounts. He, thus, played a fraud, on the Bank. All the accused, in conspiracy with each other committed criminal misconduct by falsification of bank accounts i.e. preparing false debit and credit vouchers and making false entries in the bank record. This all was done to cause pecuniary gain to Bhagat Singh, accused. During the course of investigation, various documents were taken into possession, by the Investigating Officer, vide a separate recovery memo. The statements of the witnesses were recorded. After the completion of investigation, the accused were challaned. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 120-B against all the accused, under Section 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, against S.K. Rai, N.K. Sharma, B.R. Ahuja and Balwant Singh (since deceased), and under Section 477-A IPC, against S.K. Rai, N.K. Sharma, and B.R. Ahuja, accused, was framed, which was read over and explained to them, to which they pleaded not guilty and claimed judicial trial.
(3.) THE prosecution, in support of its case, examined H.S. Sahni, Accountant, CBI Office, Chandigarh, (PW-1), who handed over a complaint dated 3.11.1979 from Assistant General Manager, State Bank of Patiala, addressed to Superintendent of Police SPE, Ambala, to Harbhajan Ram, Inspector, who took into possession the same through seizure memo Ex.P1, G.S. Bedi, Branch Manager, SBP, Sector 17, Chandigarh, ( PW-2 ), who produced the relevant record of this case, before Inspector CBI, who took the same into possession, through seizure memo Ex.P2, K.K. Mehra, Branch Manager, SBI, Sector 22 Branch, Chandigarh, ( PW-3 ), who produced some record of this case before Harbhajan Ram, Inspector, CBI, who took the same into possession, vide seizure memo Ex.P3, K.K. Mehta, Planning Manager, State Bank of Patiala, (PW-4), who accorded sanction Ex.PW4/A and PW4/B for launching the prosecution against N.K. Sharma and B.R. Ahuja, accused, officials of the Bank, after applying mind to the relevant record, J.S. Kainth, Retired Chief Vigilance Officer, State Bank of Patiala, (PW-5), who identified the signatures on Ex.PW5/A, sanction order. He also stated that he produced the relevant record of this case before L.D. Khanna, for the purpose of according sanction against Balwant Singh, accused. Ashok Kumar Gupta, Accountant Housing Board Haryana, Chandigarh, ( PW-6 ), proved various documents. S.K. Sareen, Chief Manager, State Bank of Patiala, (PW-7), stated that if the loan falls within the powers of General Manager, it has to be reported to the Managing Director and if the same falls within the powers of the Managing Director, it has to be reported to the Executive Committee. He further stated that all limits have to be reported to the next higher authority. He further stated that the procedure was that the Manager takes an application, from the party, for granting limit and if it falls within the powers of the Manager, he sanctions the same and report is sent to the next higher authorities. He further stated that, on the submission of application, by a party, the Manager prepares the case along with balance sheet of the party etc. and submits the same, to the next higher authorities, unless it is within his discretionary powers. He further stated that the credibility of a party, is to be looked into, by the Bank Manager. In case, the party stands the test of credibility and its requirements, are found genuine, the case is prepared. He further stated that the Branch Manager, cannot exceed the limit of the party, sanctioned by the head office. L.D. Khanna, retired General Manager, State Bank of Patiala, ( PW-8 ), proved Ex.PW5/A, sanction accorded by him. He also identified the signatures of Sardari Lal Shukla on the sanction order Ex.PW8/A. Vinod Seth, Clerk, State Bank of Patiala, Regional Office-3 , Chandigarh, ( PW-9 ), stated that unpaid cheques of the branch, remain with the Branch Manager, after the same are received back unrealized. He further stated that the demand draft realization register is maintained during the regular official business of the bank. He produced the demand draft realization register of their branch, for the period of 13.12.77 to 20.02.78 before the Investigating Officer of this case. He also proved other documents, on the record. Achhru Ram, Guard, Northern Railway, Headquarters, Kalka, ( PW-10 ), proved Ex.P4, delivery book from 2.3.1977 to 14.1.1979. He further stated that at page 91 there was an entry of RR No. 664032 dated 18.12.1978 Ex-Patiala to Kalka arrived on 19.12.1978. The consignment of the same, was delivered on 23.12.1978 to one Mohan Lal. The said entry was in his handwriting and bore his signatures and it also bore the signatures of Mohan Lal, an employee of the State Bank of Patiala, Kalka Branch. He also proved RR Ex.P5. He further stated that one bundle, which was received, was weighing 20 Kgs. Ram Sarup Prasad, Chief Parcel Supervisor, Northern Railway, Chandigarh, ( PW- 11 ), stated that one local delivery book of parcel office Kalka, two RR Nos. 664032 and 664033 were produced before the CBI Inspector, who seized the same, vide memo Ex.PW11/A. He also proved Ex.P4, the register. Ex. P5 and Ex.P6, the Rs. He also proved Ex.P5, vide which one bundle was received on 19.12.1978 from Ex.- Patiala to Kalka and the same was delivered on 23.12.1978 to a person of the State Bank of Patiala, Kalka Branch. He further stated that Achru Ram delivered the consignment and obtained his signatures at Page No. 91 of register Ex.P4, Phool Chand, Cashier-cum- Clerk, State Bank of Patiala, Parwanoo Branch, Parwanoo, District Solan, (PW-12), stated that he remained posted as Peon, in the State Bank of Patiala, Branch Kalka, from 24.2.1972 to November 1979. He further stated that at page 100 of register Ex.P7, there were entries in respect of nine FDR books, which were handed over to him, by Balwant Singh, Branch Manager and he was asked to enter the same in the register. He further stated that he made entry and returned the books and the register to Balwant Singh. He further stated that FDR book bearing Sr. Nos. 813901 to 814000 was never handed over to him, by Balwant Singh and he, therefore, did not make any entry of this, in the register Mohan Lal, Gunman, State Bank of Patiala Branch, Bakhahiwala, Tehsil and District Patiala, (PW-14), stated that at page No. 91 in the register Ex.P4, delivery of consignment was taken by Mohan Lal, against RR Ex.P5. He further stated that the signatures of Mohan Lal, in the relevant entry in Ex.P5 did not relate to him. He further stated that he never received consignment of the said RR. Madan Lal, Daftri, State Bank of Patiala, ( PW- 14 ), stated that he did not take the delivery of the consignment, nor signed the same. Mohan Lal son of Madan Lal, (PW-15), stated that RR was endorsed in his name and he had taken the delivery of the goods, vide entry Ex.PW4/1 and handed over the same to the Branch Manager, Kalka Branch. K. Bhaskar Shetty, Senior Manager, Vijay Bank, Zonal Office, Banglore, (PW-16), also proved various documents. A.K. Dhingra, Deputy Manager, State Bank of India, Sector 22, Chandigarh, (PW-17), also proved various documents. M.L. Khanna, Financial Adviser and Chief Accounts Officer, HSEB, Panchkula, (PW-18), stated that a sum of Rs.10.00 lacs, was lying to the credit of Housing Board Haryana, in its current account at S.B.I., Sector 22, Chandigarh. No interest was payable on that current account, as per the practice. He further stated that after utilization of that amount, FDR was got issued. He further stated that they received five FDRs of Rs. 2.00 lacs each. The FDRs, were in their custody, and duly entered in their register. Jaimal Singh, (PW-19), who after seeing the account opening form Ex.PW19/A and authority letter Ex.PW19/B, stated that he had authorized Bhagat Singh, accused, to have dealings with the bank, on behalf of the firm. He also proved the other documents. Baldev Singh son of Jaimal Singh, (PW-20), also proved various documents. Ram Narain, Deputy Manager, Zonal Stationery Depot, State Bank of Patiala, Sector 7-C, Chandigarh, (PW-21), also proved a number of documents. B.D. Singal, Manager, State Bank of Patiala, New Delhi, ( PW- 22 ), also proved various documents, and P.N. Arora son of Sham Narain,(PW- 23), deposed with regard to the clearance of draft Ex.PW21/J by the bank. Thereafter, the Public Prosecutor closed the evidence. ;