TaxTMI 
TaxTMI 
2022 (8) TMI 1606
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....rs. 2.1 Three accused, employees of Guna Branch of Central Bank of India, were prosecuted for the above-referred offences of theft (of Rs. Six Lakhs from the safe and strong room of the Bank), house-trespass, destruction of valuable security, and other offences. While the main accused, Pradeep Saxena (hereinafter referred to as 'A-1') and Vinod (hereinafter referred to as 'A-2'), were convicted and sentenced concurrently given the oral and documentary evidence, as per which the money is proved to have been recovered from their possession, the Appellant (A-3) was convicted and sentenced for the very same offences only with the aid of Section 120B of the IPC. 2.2 The enquiry against the appellant is therefore confined to the existence or the proof of criminal conspiracy between him and the other accused. The charge of conspiracy against the appellant arose because, as Head Cashier, he was to be in the custody of one of the keys of the dual locker system maintained by the Bank for the safe custody of cash and valuable security. 3. The case of the prosecution is that, upon transfer of the existing Branch Manager Shri R.K. Makore, Senior Manager Shri K.R. Lydia (hereinafter ref....
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....they entered the strong room, they sensed a burning smell of petrol. After that, they sought to open the grill gate of the strong room. This could also not be opened with the key in the custody of PW-10, but could be opened with the key of the Appellant. Upon entering the room past the grill gate, the employees saw that the bank registers were thrown open, and some of them were in a burnt condition. Further, even the safe inside the strong room could not be opened with the key of PW-10 but could be opened with the key of the Appellant. Upon opening the safe, they noticed that the bundle of currency notes and secured documents were in half-burnt condition and lying scattered. After inspection, it was noticed that out of Rs. 18,07,691/- in the custody of the Bank as of 12.06.2004, an amount of Rs. Six Lakhs was missing, and currency notes worth Rs. 17,160/- were in a half-burnt condition. At this point, A-1 was not in the Bank. PW-10 informed Senior Manager PW-4 about these events at 10.30 a.m. PW-4 returned to the Bank and finally lodged the FIR No. 538 of 2004 on 14.06.2004 at 6.15 p.m. before the Police Station Guna. The FIR was registered for offences under Sections 436 and 380 o....
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....ed into the Bank, the strong room, and then into the safe therein, the Trial Court relied on the evidence of PW-4, who referred to the rules governing the operation of strong room and safe with the aid of dual lock system. Based on testimonies of PW-4, PW-5, PW-7, PW-8, PW-10, the Trial Court concluded that the Appellant was in the exclusive custody of one of the keys that could have been used for operating the grill gate, strong room, as well as the safe of the Bank. After referring to the statements of these witnesses, the Trial Court concluded that as the Appellant is the custodian of one set of keys, he was a part of a conspiracy with A-1 and A-2 to commit the offences. It is on this inference that the Trial Court convicted the Appellant for the same offences with the aid of Section 120B of the IPC and proceeded to sentence him along with the other accused. High Court: 12. As indicated above, the High Court has confirmed the conviction and sentence of the Trial Court with a simple modification that rigorous imprisonment for six years under Section 477 of the IPC was reduced to rigorous imprisonment of four years. 13. Before considering the submissions made on behalf of....
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....ecessary to examine the system of dual locking adopted by the Bank. The Office Manual of the Bank provides that cash was to be stored in the strong room of the Bank, guarded by a Dual Control System, where locks are secured by two keys operable successively and separately. The Branch Manager and the Cashier-in-Charge are to be in the joint custody of the sets of keys to the strong room and the safe. The relevant clauses in the Manual are extracted herein below for ready reference: "2.1.1 The branch cash balance must be kept overnight in the strong room, or at the smaller branches where no strong room has been installed in a fire-proof safe, in the joint custody of the Head Cashier and the Manager or any other officer authorized to hold joint custody of cash. 2.1.2 The strong room or fire-proof safe, must be under the double lock of the Head Cashier and officer-in-charge, and both must be present whenever the strong room or safe is opened to withdraw or deposit cash and neither official may enter the cash portion of the strong room except in the presence of the other. 2.1.3 Under the dual control system, it is advisable that the Branch Manager should hold ....
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....nt, a fact used by the prosecution to imply that after the branch was locked on 12.06.2004, the Appellant was in possession of the keys to the main gate of the branch. On this, the Trial Court glossed over the lapse on the part of PW-10. This questionable observation of the Trial Court is as follows: "It was admitted by Sushil Verma (PW-10) in the paragraph No. 30 of the cross-examination that locks could be locked as per the rules of the bank only by the authorised person. The accused Pradeep being not a casual worker, but even then he had committed error deliberately while handing over the key. The witness stated further in the paragraph No. 36 that the external, gate was got closed by the accused Pradeep. It is correct to say that he had no authority to close the gate. Thus the witness did not get the lock locked by the authorised person as per the rule of the bank, but the lock was locked by unauthorised person. But the errors committed by the witness do not exempt the accused from the consequences of the crime. It does not provide any benefit to the accused." (emphasis supplied) 21. Apart from the fact that the Appellant by himself could not have operated the st....
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....rmining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution." (emphasis supplied) 24. In accepting the story of the prosecution, the Trial Court, as well as the High Court, proceeded on the basis of mere suspicion against the Appellant, which is precisely what this Court in Tanviben Pankajkumar Divetia v. State of Gujarat [(1997) 7 SCC 156], had cautioned against: "45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn a....