B.R.Malhotra v. C.B.I

IN T B.R. Malhotra

C.B.I. Punjab, P

CORAM: HON

Present : Mr for

Mr for

MANJARI NEH

1.

The order of sentenc C.B.I., Punjab, P Offence(s) u/ 120BN r/w 420 IPC 13(i)(d) r/w 13(2 of the PC Act, 1988 1(a). For original status b

THE HIGH COURT OF PUNJ AT CHANDIGAR

C D

Versus

Patiala

N'BLE MRS. JUSTICE MANJ . Gautam Dutt, Advocate the petitioner. . Akashdeep Singh, Special Publ the respondent-CBI. ****

HRU KAUL, J. e appellant-accused is challengin ce both dated 16.01.2003 passed Patiala, whereby he was sentence /s Period of sentence(s) RI for 01 year R 2) RI for 02 years R r the sake of convenience, the p efore the learned Trial Court. JAB & HARYANA RH CRA-S-273-SB-2003 Date of decision: 14.05.2024 .....Appellant .....Respondent JARI NEHRU KAUL lic Prosecutor ng judgment of conviction and by learned Special Judge, ed as under:- Fine imposed Period of sentence in default of payment of fine Rs.1,000/- RI for 01 months Rs.2,000/- RI for 02 months parties are referred to with their

r

The FIR in questio serving as Clerk of the State Ban and conspired w in dormant savi V.K. Dhir forge appellant-B.R. M without verifyin accused V.K. D being sent up to B.R. Malhotra w misuse of offici IPC read with S 1988. On being them and claime

The witnesses includ Sharma, who ve documents. PW various withdraw of his case exam

On V.K. Dhir guilty Section 13(1) (d appellant was co B-2003 - 2-e case of the prosecution, as per on may be summed up as thu k/Cashier and appellant-B.R. Ma nk of India, Main Branch, Moga with each other to defraud the Ban ings accounts without preparing d withdrawal forms and the sign Malhotra in his role as Passing ng the signatures against the Dhir to withdraw funds fraudul o face trial both the co-accused were charged under criminal con ial positions under Section 120-ection 13(1) (d) and 13(2) of th g charged both the accused denie ed trial. e prosecution in support of its ding PW1-K.B Sharma, PW2 erified the handwriting of co-acc W-18 Balwinder Singh Rakhra wal forms by appellant-B.R. Ma mined one handwriting expert M. the basis of the evidence led, y under Sections 120-B, 420, 4 d) and 13(2) of the Prevention of onvicted for offences under Sec

r the allegations levelled in the us, co-accused V.K.Dhir while alhotra, the then Passing Officer a, abused their official position nk. They made fictitious entries g credit vouchers. Co-accused natures of account holders while Officer, approved 8 such forms specimen cards, allowing co-lently. They were charged on V.K. Dhir as well as appellant-nspiracy, cheating, forgery and -B, 420, 468, 471, 477-A of the he Prevention of Corruption Act, ed the charges levelled against case, examined as many as 26 -B.K. Chopra and PW-12 D.C cused V.K. Dhir on the relevant a testified about processing of alhotra. The appellant in support L. Sharma. the trial Court held co-accused 468, 471, 477-A of the IPC and f Corruption Act, 1988 while the ctions 120-B and 420 of the IPC e e r n s d e s - n - d e , t C t f t d d e C

and Sections Se 1988 They wer judgment. Submissions on

Lea establish the gu arguments prese a). Despite e convincing, muc activities orches accusation again without verifyin b) That the including in an Ms. Kalra, the implicate the statements inclu did not suggest e c). That the dereliction of du to constitute a suggest that the passed the with initiated against authorities conc therein also no a B-2003 - 3-ection 13(1) (d) and 13(2) of the re sentenced as already detail n behalf of the counsel for the arned counsel has contended uilt of the appellant beyond a ented by the learned counsel are a examining 26 witnesses, the pro ch less cogent evidence to link strated by co-accused/prime a nst the appellant was that he ha ng signatures, lacked any substan prime accused V.K.Dhir, ad extra judicial confession state then Manager, SBI, Moga. H appellant as being an accomp uding the admission made by the even remotely any collusion wit only allegation against the ap uty as a Passing Officer. Howe criminal offence. There was e appellant acted with a malac hdrawal forms. Furthermore, d the appellant for failure to preve cerned qua the misconduct of c allegations were leveled against

e Prevention of Corruption Act, led in the earlier part of this accused-appellant. that the prosecution failed to a reasonable doubt. The key as follows: osecution failed to present any k the appellant to the fraudulent accused V.K.Dhir. The primary ad approved 8 withdrawal forms ntive proof of criminal intent; dmitted to his fraudulent acts ement Ex.PW25/1 made to one However, not even once did he lice in the alleged crime. The e prime accused V.K.Dhir, thus, th the appellant; ppellant was of negligence and ver, this allegation fell far short no evidence led whatsoever to cious intent or had fraudulently departmental proceedings were ent and bring to the notice of the co-accused V.K.Dhir, however, the appellant of conspiring with , s o y y t y s s e e e , d t o y e e , h

the co-accused. departmental pr also weakened t Court while pa regarding the all

(d) That ther documents or b accused V.K.Dh none of the acti trial Court grave him based on sp case scenario, tw in number com exonerated. Thi absence of a co appreciated in th petitioner was a prosecution had

Hen that the allegatio not constitute an Submissions m

Lea submissions ma the conduct of t B-2003 - 4-The absence of all these allegat roceedings further demolished the accusations against him. T assing the impugned judgmen leged conspiracy were based on e was no indication, even impl benefitted financially from the hir. Criminal conspiracy, requi ions of the appellant indicated t ely erred in holding the appellan peculations rather than on cogen wo other employees also passed mpared to the 08 passed by s selective prosecution rather le oherent case against the appel he light of there being no convin a beneficiary of the fraudulent not presented any evidence trac nce, the trial Court had fallen in ons levelled against the appellan ny criminal offence. ade by the Standing counsel fo arned Standing counsel for CBI de by the counsel for the appell the appellant was suggestive of

tions against the appellant in the the case of the prosecution as The findings of the learned trial nt and order dated 16.01.2003 conjectures and surmises; licitly that the appellant forged fraudulent activities of the co-ires a demonstrable intent, and this essential element. Thus, the nt criminally liable by convicting nt evidence. Even in the worst-d withdrawal forms-albeit fewer the appellant-yet they were eft no manner of doubt qua the llant which also required to be ncing evidence produced that the activities more so, when the cing the money back to him. nto error in failing to appreciate nt including the evidence led did or CBI. I while opposing the prayer and lant has at the outset argued that active collusion with the prime e s l

d - d e g - r e e e e e e d d t e

accused V.K.D submissions:

(i)

Neg

(1) The appella Ex.PW1/15 with in one specific the correspondin blatant disregard with co-accused were made from production of th to a deliberate contended by th employees who had not been p appellant was in forms as compa payments on 8 accounts, it did h

(2) That no d money trail inv however, the n planned behind evidence agains B-2003 - 5-Dhir. The Standing counsel gligence and lack of Verificatio ant approved 8 withdrawal form hout verifying signatures agains case, the specimen signature E ng withdrawal form Ex.PW1/9 b d for verifying signatures clearly d V.K.Dhir. Furthermore, it wa m dormant accounts by co-a he relevant savings bank pass bo attempt to bypass the establis he Standing counsel that althou had also passed withdrawal form proceeded against however, it nvolved in a significantly high ared to the other two employees withdrawal forms, 7 of which highlight a pattern of suspicious doubt there was no direct eviden volving fraudulent withdrawal nature of conspiracy, which typ closed doors, cannot be ignored st the appellant would not ne

further made the following on ms Ex.PW5/4 & Ex.PW1/9 to t specimen cards. For instance, Ex.PW8/1 was in Punjabi, while bore signature in English. This y indicated a possible conspiracy as revealed that the withdrawals accused V.K.Dhir, without the ooks. This action alone pointed shed banking protocols. It was ugh it was true that two other ms in a similar negligent manner was crucial to note that the her number of such withdrawal s. Since the appellant approved h were associated with dormant behavior. nce linking the appellant to the s amounting to Rs.4,53,000/-, pically involves covert actions d thus, the absence of any direct egate the strong circumstantial g o , e s y s e d s r r e l d t e , s t l

evidence indica V.K.Dhir.

(ii)

Exo

(1)

Exo who also passe exoneration of compelling evid the two other em of the evidence viewed in their defraud the bank

(2)

The the appellant in verification and no manner of d orchestrated by

I h relevant materia Findings of the

1.

The Prevention of C under: "Se "13 B-2003 - 6-ating his involvement in the oneration of other employees oneration of two other employe ed withdrawal forms cannot be the appellant. The CBI had p dence clearly implicating the ap mployees being exonerated wou e against the appellant as the r entirety clearly demonstrate k. e Standing counsel for CBI thus approving multiple suspicious w the overall circumstantial evide doubt that he was actively invol co-accused V.K.Dhir. have heard learned counsel fo al on record. Court e appellant stands convicted Corruption Act, 1988 and Section ction 13(1)(d) of the PC Act: . Criminal misconduct by a public ser

e conspiracy with co-accused ees S.K. Dua and Gurdip Singh e seen as a precedent for the presented comprehensive and ppellant in a fraudulent scheme; uld not thus, diminish the weight actions of the appellant when his role in the conspiracy to s, submitted that the conduct of withdrawal forms without proper ence of a covert conspiracy left lved in the fraudulent activities or the parties and perused the under Section 13(1)(d) of the n 420 of the IPC which read as rvant.- d h e d ; t n o f r t s e e s

(1) X

(d) i

(i) b valu

ii) b othe

(iii) valu XXX Sec "42 Wh deli any whi with year

2.

Bef observations ma v. State of Kera of position by a loss or gain. M itself suffice for the Apex Court 535 wherein it pecuniary advan offence under S B-2003 - 7-XXX XXX XXX if he,- by corrupt or illegal means, obtains fo uable or pecuniary advantage; or by abusing his position as a public se er person any valuable thing or pecuni while holding office as a public s uable thing or pecuniary advantage wi X XXX XXX ction 420 of the IPC

¶20Cheating and dishonestly inducin oever cheats and thereby dishonest iver any property to any person, or to part of a valuable security or anyth ich is capable of being converted into h imprisonment of either description f rs, and shall also be liable to fine. " fore proceeding further, it wou ade by Hon'ble the Supreme Co ala, 1963 SCR Supl. (2) 724 wh public servant must involve dis Mere negligence or violation of d r criminal misconduct. This pos t in S.P. Bhatnagar V. State o emphasised the necessity of p ntage gained by abusing one's Section 13(1) (d) of the PC Act

or himself or for any other person any ervant, obtains for himself or for any iary advantage; or servant, obtains for any person any ithout any public interest; or ng delivery of property.- tly induces the person deceived to o make, alter or destroy the whole or hing which is signed or sealed, and a valuable srcurity, shall be punished for a term which may extend to seven uld be apposite to refer to the urt in M. Narayanan Nambiar herein it observed that the abuse shonest intent to cause wrongful departmental rules would not by sition was reiterated by Hon'ble of Maharashtra, (1979)1 SCC proving dishonest intention and s position for establishing the t. It would, thus, be relevant to y y y o r d d n e r e l y e C d e o

reproduce the o Nambiar's case B-2003 - 8-observations of the Hon'ble Sup e (supra) "In our view this passage, if w construction of a penal provision will presently show the case of th falls not only within the words of Indeed if his argument be accepte to the language but also to the sp pharaseology used in the clause, wrongful loss to the Government falls within it. Let us look at th position of a public servant," for said clause. The phraseology is ve "otherwise" than by corrupt or ill position. The gist of the offence officer abusing his position as a p for any other person any valua "Abuse" means mis-use ie, using it is not intended. That abuse ma otherwise than those means. connotation and if no limitation 'illegal', and 'otherwise' mention for on that construction every a clause. So some limitation will h limitation is that it takes colour f which it appears in the clause, th dishonest act on his part. The con the clause is widely construed public servant for securing a jo clause and that could not have b But in our view such innocuous clause. The juxtaposition of th 'corrupt or illegal means', and "abuse" indicate the necessity f to bring him within the meaning position or not depends upon the 'obtains' be sought in aid to lim Obtain' means acquire or get. If obtains a valuable thing or a pecu

preme Court in M. Narayanan we may say so, restates the rule of n from a correct perspective. As we e appellant on the facts found clearly f clause (d) but also within its spirit. ed not only we will be doing violence pirit of the enactment. First taking the the case of a public servant causing t by benefiting a third party squarely he clause "by otherwise abusing the r the argument mainly turns upon the ery comprehensive. It covers act done legal means by an officer abusing his e under this clause is, that a public public servant obtains for himself or able thing or pecuniary advantage. his position for something for which ay be by corrupt or illegal means or The word 'otherwise' has wide is placed on it, the words 'corrupt', ed in the clause become surplusage, abuse of position is gathered by the have to be put on that word and that from the preceding words along with hat is to say, something savouring of ntention of the learned counsel that if even a recommendation made by a ob for another may come within the been the intention of the Legislature. acts will not be covered by the said he word 'otherwise' with the words the dishonesty implicit in the word for a dishonest intention on his part of the clause. Whether he abused his facts of each case; nor can the word mit the express words of the Section. f a corrupt officer by the said means uniary advantage, he can certainly be n f e y

e e g y e e e s c r

h r e

e t h f f a e

d s d t s d

s e

3.

Upo as also the ratio to prove charge B-2003 - 9-said to obtain the said thing or a that in clauses (a) and (c) the sam those clauses it can only mean g the Government and therefore the said word in clause (d) 'Obtains' of those provisions may mean ta there is no reason why the same used in a different context when th fit in the scheme of that provision misappropriation has been provid of wrongful loss caused to the Go public officer should fall outside when a comprehensive Statute w particular category of corrup therefrom because the consequen to the public as acts of bribery. words used in the clause, we have by a public servant for himself or position as a public servant fa clause." xxxx

xxxx "21. Following the decision in Kerala (supra), it was held by t Maharashtra (supra) that the a within the mischief of the sectio that it may be proved that the a department. It was further hel prosecution to prove affirmative illegal means or by abusing h advantage for some other person find out in this case as to wheth and acted dishonestly or with a the contract in question entrusted

on examining the facts of the pr of law laid down by the Suprem es against a public servant acc

a pecuniary advantage, but it is said me word is used and in the context of getting from a third party other than e same meaning must be given to the ' in clauses (a) and (6) in the context aking a bribe from a third party, but meaning shall be given to that word that word is comprehensive enough to n. Nor can we agree that as dishonest ded for in clause (c), the other cases overnment by the deceit practiced by a the Section. There is no reason why was passed to prevent corruption this ption should have been excluded nces of such acts are equally harmful . On a plain reading of the express e no doubt that every benefit obtained r for any other person by abusing his alls within the mischief of the said

xxxx xxxx M. Narayanan Nambiar v. State of this Court in S. K. Kale v. State of abuse of position in order to come on must necessarily be dishonest so accused caused deliberate loss to the ld in this case that it is for the ely that the accused by corrupt or is position obtained any pecuniary n. It would, therefore, be necessary to er the accused abused their position corrupt or oblique motive in having d to A-4." resent case and the evidence led me Court, it is clear that in order used of offences under Section d f n e t t d o t s a y s d l s d s d f f e o e e r y o n g d r n

13(1) (d) of the dishonest intenti

4.

In evidence led the to prove that the or gain any pe without signatu would not cons Act.

5.

Fur of conspiracy or disputed by the Moreover, even including his e appellant as bei him.

6.

Stra withdrawal form official duties counsel for the C withdrawal form is clearly indica passed by the ap any cogent and c be emphasized t to prove beyond B-2003 - 10-e P.C. Act as well as Section 42 ion on his part to cause deliberat the present case, however, on ere is a clear cut absence of mens e appellant had a dishonest inten ecuniary advantage. The mere ure verification, no doubt amou stitute criminal misconduct unde rthermore, the prosecution faile r collusion between the appellan CBI also, no trail of money was n as per the various statemen extra judicial confession statem ing either a conspirator or in any angely two other employees w ms and had apparently being ne like the appellant were not pro CBI that they had not been prose ms as compared to 8 withdrawal ative of selective prosecution. T ppellant cannot be made the sole convincing evidence of crimina that to attract an offence under th d reasonable doubt that the acc

20 IPC it is imperative to prove te losses to the department. meticulous examination of the s rea. No evidence has been led ntion to cause losses to the bank e passing of withdrawal forms unts to negligence, however, it er Section 13(1)(d) of the P.C. d to present any direct evidence nt and accused V.K.Dhir as not s found leading to the appellant. nts made by accused V.K.Dhir ment, he did not implicate the y manner having colluded with who too had similarly passed egligent in the discharge of their secuted. The contention of the ecuted as they had passed only 2 l forms passed by the appellant, The number of withdrawal forms basis for his conviction without al intent against him. It needs to he P.C. Act, the prosecution has cused by resorting to corrupt or e e d k s t . e t . r e h d r e , s t o s r

illegal means an advantage. How prove the case negligence and criminal miscon therefore, consid intent, the appel the charges fram

7.

As

May 14, 2024 ps B-2003 - 11-nd by abusing his official posit wever, in the present case, the p of the petitioner beyond reason dereliction of duty certainly nduct under the P.C. Act or chea dering the absence of cogent e llant deserves to be given the be med against him. a sequel to the above discussion

(M

tion had gained some financial prosecution has not been able to nable doubt. The allegations of do not meet the threshold of ating under Section 420 IPC and vidence and proof of dishonest enefit of doubt and acquitted of n, the present appeal is allowed. MANJARI NEHRU KAUL)

JUDGE : : l o f f d t f