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2011 Supreme(Pat) 1269
2012 (2) East Cr C 652 (Pat)
PATNA HIGH COURT
ANJANA PRAKASH, J.
Bidyut Kumar Pal ..Appellant (in Cr. App. No. 47/96) With
Bhishma Prasad Sharma Appellant (in Cr. App. No. 51/96)
Versus
State of Bihar ..Respondent (in both cases)
Cri Appeal (SJ) Nos. 47 and 51 of 1996.
Decided On : July 4, 2011
Gouranga Chatterjee, Pramod Kumar and Ravi Bhardwaj, for the appellants.
Bipin Kumar Sinha, for the respondent.
Headnote:Indian Penal Code, 1860-Sections 420, 120-B and 477-A r/w Sections 13(1) (d)/13/(2) of Prevention of Corruption Act, 1988-Cheating and conspiracy by public servant-conviction-cheque credited into wrong account as a part of criminal conspiracy-Appellants admitted their mistake in statement recorded under Section 313 Cr. P.C.-There is not remotest evidence of meeting of minds between two accused-charge under section 120-B IPC has to necessarily fail-appellants have not done anything which is an offence by virtue of act alone or which is prohibited by law-conviction and sentence set aside-appeals allowed. (Paras 15, 22, 23, 39, 40, 41, 42 and 43)
Criminal Law-Mens rea-Courts when called upon to adjudicate on question of scienter/mens rea, cannot give a finding concentrating on actus reus alone since there is no scope of proceeding on assumptions in criminal law-Courts cannot prejudge issue by assuming mens rea when law requires quite opposite-in all cases which require criminal intent/scienter or mens rea is to be proved by prosecution as a material fact, failure to do so would entitle accused to acquittal or discharge. (Paras 26 and 29)
Anjana Prakash, J.-Both the appellants have been convicted under Section 420 of the Indian Penal Code and sentenced to One year Rigorous Imprisonment as also under Section 420 read with 120-B of the Indian Penal Code and sentenced to One year Rigorous imprisonment and a fine of Rs. 3.000/- in default of which Three months Rigorous Imprisonment. The appellant Bidyut Kumar Pal has also been convicted under Section 477-A of the Indian Penal Code and sentenced to Rigorous Imprisonment for Two years and under Sections 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 and sentenced to One year Rigorous Imprisonment and a fine of Rs. 1,000/- in default of which Rigorous Imprisonment for Two months 'by the Special Judge, C.B.I. South Bihar, Patna, by a judgment dated 15.3.1996 in Special Case No. 34 of 1990.
2. The case of the prosecution briefly stated is that while appellant Bidyut Kumar Pal was posted as a Clerk in Patna University Branch of Allahabad Bank during 1989, he allegedly entered into a criminal conspiracy with appellant Bhishma Prasad Sharma, Proprietor of the Prabhat Printing Press. Muzaffarpur and wrongly credited a sum of Rs.l.88.253/ - to his firm's Account, a cheque meant for Vishwamitra Paper Industry Ltd. on 31.3.1989 which Bhishma Prasad. Sharma periodically withdrew between 04.04.1989 and 21.10.1989.
3. To prove the requirements of the sections the prosecution examined ten witnesses out of whom PW 1 (Ashok Kumar Sinha) is formal and only on the point of his introduction on the account opening form (Exts. 2 and 2/A) of appellant Bhishma Prasad Sharma. Similarly, PW 2 (Bhuneshwar Singh) former Bank Manager of Allahabad Bank is merely on the production of Current Ledger and Log Book marked X and Y for identification.
4. PW 3 Madhusudan Rai Sharma was the Assistant General Manager of Allahabad Bank, who proved the sanction for the prosecution of the appellant Pal, In his cross-examination he stated that in Banks there is a provision for daily, weekly and monthly balancing. It is when this balancing of figures is done the defects are detected, In the concerned Bank there was no balancing being done. He further stated that sometimes there was mistake in totalling of the figures.
5. PW 4 George Joseph was an employee of the State Bank of India, Bailey Road Branch. In Court he brought the Ledger Book of his bank which was certified by the then Branch Manager Marked as Ext.4. Undisputedly, Cheque No. A-74/100/403567 was dated 16.03.1989 to the tune of Rs.1.88,203/- and was to be credited to Vishwamitra Paper Industries Ltd. The same had been sent to the State Bank of India from Allahabad University Branch for clearance and had been processed by him. The cheque is marked as Material Ext.-I and his signature on the same is marked Ext.5. When the cheque was cleared the amount was paid to Allahabad Bank. The concerned ledger-sheet is marked Ext.4-A. The next cheque No. A/74/100/406112 dated 18.03.1989 for the amount of Rs.33594.40 was issued by the Director, Primary Education in favour of Prabhat Printing Press. Muzaffarpur. The said cheque had also been received by the State Bank of India for clearance from Allahabad Bank Patna University Branch and the same was cleared by him. The Cheque is exhibited as Material Ext. I/A and his signature on the same is. marked as Ext.5/A. He stated that the first cheque was sent to his bank on 30.03.1989 from Allahabad Bank and on the same day he had debited the amount from the account holder.
6. PW 5. Firoz Raza, was an employee of Allahabad Bank who brought the Ledger Book and proved entry dated 31.03.1989 which was in the hand writing of appellant Pal marked Ext.6. He stated that the entry was on the basis of the cheque and pay-in-slip. As per procedure the particular in the pay-in-slip was filled by the party depositing the cheque and the Cashier receives the clearing cheque whose handwriting was marked Ext. 7. He further stated that the cheque and pay-in-slip on which basi
