JUDGMENT:

This Criminal Revision Case is filed by the petitioner questioning the judgment dated 20.04.2010 in Crl.A.No.97 of 2009, on the file of Metropolitan Sessions Judge, Nampally, Hyderabad. Learned Sessions Judge confirmed the conviction recorded by the learned Magistrate.

2. Heard the learned counsel for the revision petitioner and learned Additional Public Prosecutor appearing for respondent-

State.

3. The case against the revision petitioner is that while he was working as Office In-charge of SBH, Gandhi Medical College, Extension Counter during the year, 1997, he had taken some blank demand drafts from the bank, without informing the main branch and out of the said blank draft books, seven leaves were misused and an amount of Rs.4,02,300/- was misappropriated. Modus operandi adopted was that seven leaves of demand drafts were filled with a total amount of Rs.4,02,300/- in favour of a person namely Venkatanarayana. According to the prosecution, the said Venkatanarayana is non-

existent person and it was the revision petitioner who opened bank account in the name of Venkatanarayana and deposited said demand drafts and withdrawn the said amount by way of cheques.

4. Learned trial Judge examined P.Ws.1 to 7 and marked Exs.P.1 to P.64 on behalf of the prosecution. The demand drafts which are fabricated by the revision petitioner are Exs.P.3 to P.9. Exs.P.10 to P.19 are credit vouchers in the account of Venkatanarayana and Exs.P.20 to P42 are the cheques through which amounts were withdrawn by petitioner. 5. The said cheques were also sent to handwriting expert for the purpose of opinion and it was opined by handwriting expert/P.W.5 that it was the revision petitioner who had written on the demand drafts.

6. Having considered the circumstantial evidence which was adduced by the prosecution, learned Magistrate found that it was the revision petitioner who committed the act of criminal mis-appropriation and also the ingredients of cheating were made out. Accordingly, he was convicted for the offences under Sections 406 and 420 of IPC.

7. The finding of the learned Magistrate was questioned before the Sessions Judge by filing an appeal. The learned Sessions Judge having gone through the evidence on record concurred with the findings of the learned Magistrate and confirmed the conviction. However, the sentence of imprisonment of two years under both counts was reduced to 6 months.

8. Learned counsel appearing on behalf of the revision petitioner would submit that the approach of the Courts below is erroneous. If it is the case of the prosecution that the demand drafts were fabricated, charge for the offence under Section 468 of IPC had to be framed for committing forgery. Since there is no charge for forgery and consequent cheating, the question of convicting the petitioner under Section 420 of IPC does not arise. Further, there is no evidence which was adduced by the prosecution to show that the amounts were entrusted in any manner by the revision petitioner as branch Manager, for the said reason, conviction under Section 406 of IPC cannot be maintained. He further submits that the entire property of the revision petitioner was subjected to attachment and auctioned, accordingly, the alleged defalcated amounts were already recovered. The revision petitioner is now aged more than 73 years and is suffering from Parkinson’s disease and bed ridden. To that effect, he filed a medical certificate issued by neuro physician Dr.Rahuram Vaddepally.

9. On the other hand, learned Assistant Public Prosecutor submits that the case is one of circumstantial evidence and the entire documents which are demand drafts along with withdrawal cheques were filed before the Courts below. On the basis of the said evidence, both the Courts below had correctly drawn a conclusion of finding the revision petitioner guilty.

10. The case is one of fabricating demand drafts and in turn causing wrongful loss to the bank. Though charge under Section 468 of IPC was not f