When the advocate on record who filed the appeal was elevated to the Bench, it was for the appellant to make his own arrangement for appointing another advocate in the place of earlier advocate on record. Appellant did not take any steps in this regard. Even notice sent to the appellant was not received by him for want of correct address. As such there was no option except to proceed for disposal of the appeal filed by the appellant, by appointing amicus curiae. On the mere allegation of the appellant that the amicus curiae appointed was earlier junior counsel of C.B.I. advocate, is no ground to interfere with the impugned judgment. Having perused the findings recorded by the trial court/Special Court and of the High Court, we are of the view that the findings recorded in support of the case of the prosecution were in conformity with the oral and documentary evidence on record. We are satisfied from the findings recorded that the appellant knowing fully well that the invoices/bills were fake and fabricated, were presented on behalf of the firm to the bank and thus cheated the bank. The prosecution has proved the guilt of the appellant herein beyond reasonable doubt to record conviction of the appellant.

Crl.A.No.2298 of 2010
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2298 OF 2010
Mayank N Shah …..Appellant
Versus
State of Gujarat & Anr. …..Respondents
J U D G M E N T
R. Subhash Reddy, J.

  1. This criminal appeal is filed by the accused no.4, aggrieved by the
    judgment dated 16.10.2008, passed in Criminal Appeal No.324 of 1987,
    by the High Court of Gujarat at Ahmedabad, confirming the judgment
    and order of conviction dated 02.04.1987 passed by the learned Special
    Judge, Ahmedabad in Special Case No.13 of 1979.
  2. On 21.07.1976, a complaint was lodged by Divisional Manager,
    Central Bank of India, Ahmedabad with the Superintendent of Police,
    Central Bureau of Investigation, Ahmedabad against the
    appellant/accused no.4 and four others which came to be registered as
    1
    Crl.A.No.2298 of 2010
    C.R. No.43 of 1976. It was alleged in the complaint that M/s. New
    Russian Automobiles is a registered partnership firm engaged in the
    business of manufacturing crank-shafts for jeeps, ambassador cars,
    tractors, diesel engines etc., from their manufacturing unit at plot bearing
    no.155, C1-B/3 situated in Industrial Area, Naroda Taluka of
    Ahmedabad District. It was alleged that during the relevant time
    accused no.1 was serving as Branch Manager of Central Bank of India,
    Ahmedabad, whereas accused nos.2 and 3 were partners of M/s. New
    Russian Automobiles along with two others. As per the complaint,
    appellant herein/accused no.4 was at the relevant time serving as Chief
    Manager (Operations) with the firm and accused no.5 was serving as
    office Superintendent. It was further stated in the complaint that original
    accused no.2 applied to the Central Bank of India for availing certain
    loan facilities for the firm. Accordingly, various facilities such as Term
    Loan facility, Cash Credit Open Loan facility, Usance Bills facility, Clean
    Endorsed Out-stationed Third Parties Cheques Discounting facility etc.
    were extended from time to time at the instance of accused no.1.
    According to the complainant, accused no.2 apart from being a partner
    in the partnership firm, had also floated three other fictitious proprietary
    concerns at Bombay, i.e., (i) M/s. Technical Export Import Association;
    (ii) M/s. Alloy Steel Corporation; and (iii) M/s. Auto Parts Centre. It was
    further the case of the complainant that under the Usance Bills facility,
    the partnership firm used to offer its bills drawn on different outstation
    2
    Crl.A.No.2298 of 2010
    parties and along with the said bills they have produced railway receipt,
    motor receipt, invoices for the value of the goods sold to the parties and
    also the hundis drawn upon the purchases and all the said documents
    were signed by accused nos.2 to 5. On such presentation, bank used to
    grant credit facility by forwarding the bills with necessary documents to
    the out-stationed bankers named in the bill and the out-stationed parties
    used to accept the hundis for the value of goods sent along with the bill
    and the out-stationed bank used to deliver to the said party railway
    receipt or motor receipt along with the invoices. As stated in the
    complaint, the out-stationed parties then used to pay up the amount of
    hundis to their partner within the time fixed by the hundis and such
    bankers used to send necessary amount to the Central Bank,
    Gheekanta Branch, Ahmedabad. It was the allegation in the complaint
    that all the accused persons hatched a conspiracy to cheat the bank and
    they managed to get fake motor receipts alleged to have been issued by
    one Bombay General Freight Carriers Pvt. Ltd., Bombay. As alleged in
    the complaint, the appellant/accused no.4 and accused no.5 presented
    to the bank 25 bills for the total amount of Rs.18,57,064.40 during the
    period from October 1975 to March 1976 and in the said manner, the
    firm has availed the credit facility from the bank against such bills, by
    presenting fake transport receipts. It is alleged that on certain occasions
    forged receipts were produced with Out-stationed Bills Discounted
    (O.B.D.) and Bills Purchased (B.P.) and in all 25 bills were presented
    3
    Crl.A.No.2298 of 2010
    with forged motor transport receipts and out of the said bills, 11 bills
    totalling to Rs.6,02,160/- were drawn upon a fictitious firm, namely, M/s.
    Auto Parts Centre, of which accused no.2 was the sole proprietor. It is
    alleged, the accused nos.2 to 5 by making false or misleading
    representation with fraudulent and dishonest inducement, cheated the
    bank to the tune of Rs.18,57,064.40. It was also alleged that accused
    nos.2 to 5 made false declaration about the value of the goods by
    drawing bills in favour of fictitious firms. Further, M/s. Alloy Steel
    Corporation, a fictitious firm floated by accused no.2, raised 11
    fabricated invoices in the name of the firm amounting to Rs.44,19,000/-
    and fraudulently and dishonestly induced the said bank to advance the
    amount of Rs.30,93,300/-. In the complaint it is alleged that accused
    no.1 being a public servant, managed to get credited, at the instance of
    accused no.2, an amount of Rs.9500/- in the account of his sons on
    28.11.1975 and Rs.5400/- on 11.02.1976. In addition to the same,
    accused no.1 accepted a wrist watch, Crown T.V. set and enjoyed a trip
    to Bombay at the expense of accused nos.2 and 3, as such, committed
    the offence punishable under Section 161 and 165 of the Indian Penal
    Code (IPC).
  3. After completion of the investigation on the complaint, all the
    accused were charged for the offences punishable under Sections 161,
    166, 420, 468 and 471, IPC read with Sections 5(1)(d) and 5(2) of
    4
    Crl.A.No.2298 of 2010
    Prevention of Corruption Act, 1947. All the accused pleaded not guilty
    to the charges and claimed trial.
  4. The prosecution has examined in all 44 witnesses apart from the
    documentary evidence. On appreciation and evaluation of the evidence
    on record adduced by the prosecution both oral as well as documentary,
    the learned Special Judge held the appellant is guilty for the offences
    charged and imposed the sentence for the various offences, which
    reads as under :
    “R.I. for a period of two years for the offence punishable
    under S.120B read with S.161, 166, 420, 471 of I.P. Code
    and also read with S.5(1)(d) further read with S.5(2) of the
    Prevention of Corruption Act, 1947.
    R.I. for a period of two years and to pay fine of Rs.5000/-,
    in default to suffer further R.I. for period of six months for
    the offence punishable under sec.420,420-120B of I.P.
    Code.
    R.I. for a period of one year and to pay a fine of Rs.2000,
    in default to suffer further R.I. for period of three months for
    the offence punishable under S.471 read with S.468 of I.P.
    Code in respect of the user of seven forged motor
    transport receipts.
    R.I. for a period of one year and to pay a fine of Rs.2000.
    in default to suffer further R.I. for period of three months for
    the offence punishable under S.471 read with S.468 and
    further read with S.120B of I.P. Code in respect of the user
    of the 11 Photostat copies of exhs.942 to 952.”
  5. Aggrieved by the conviction recorded and sentence imposed, the
    appellant herein preferred criminal appeal before the High Court. High
    Court, by re-appreciating the evidence on record, dismissed the appeal
    5
    Crl.A.No.2298 of 2010
    by impugned judgment, confirming the judgment and order of sentence
    imposed on the appellant, by the learned Special Judge, Ahmedabad.
  6. We have heard Sri Basava Prabhu Patil, learned senior counsel
    appearing for the appellant and Ms. Sonia Mathur, learned senior
    counsel appearing for the C.B.I.
  7. It is contended by learned senior counsel for the appellant that the
    appeal was decided by the High Court without giving adequate
    opportunity, to the appellant to present his case on merits. It is
    submitted that during the pendency of the appeal, before the High Court,
    the advocate who has presented the appeal on behalf of the appellant
    was elevated as the Judge of the High Court and thereafter notice
    issued by the High Court was not received by the appellant, as he has
    shifted to Pune and the High Court has disposed of the appeal by
    appointing amicus curiae, who was no other than junior advocate of the
    counsel for the C.B.I. In view of the same, it is submitted that it is a fit
    case to remand the matter to the High Court. Further it is submitted that
    conviction of the appellant is solely based on circumstantial evidence
    and the appellant was the salaried employee of the firm working as
    Chief Manager (Operations). He was not benefitted in any manner and
    he was submitting the bills and invoices as per the instructions of the
    accused no.2. That the companies which were floated by the accused
    no.2 were his proprietary concerns. It is submitted that he was
    preparing the invoices and bills during his routine office work on the
    6
    Crl.A.No.2298 of 2010
    basis of information received from the factory and submitted to the bank.
    It is submitted that in absence of any direct evidence connecting the
    appellant to the alleged illegalities the High Court as well as the trial
    court fell in error in recording conviction of the appellant for the offence
    alleged.
  8. On the other hand, learned senior counsel appearing for the
    respondents has submitted that the appellant/accused no.4 was working
    as Chief Manager (Operations) with M/s. New Russian Automobiles and
    he had drawn almost all O.B.D. and B.P. bills on behalf of the firm. It is
    submitted that from the documentary evidence placed on record, it is
    amply clear that appellant was very well knowing that the bank was
    being deceived by showing highly inflated amounts in the O.B.D. bills. It
    is submitted that appellant has signed all the bills which were submitted
    along with forged receipts to the bank. Further it is stated that he has
    attested all the 11 photocopies of exhibits 942 to 952 as true copies of
    the forged invoices issued by M/s. Alloy Steel Corporation. It is
    submitted, thus the appellant herein was party to the offence of cheating
    and forgery upon the bank.
  9. Having heard learned counsel on both sides, we have perused the
    judgments of the trial court, as well as High Court.
  10. On appreciation of oral and documentary evidence on record, trial
    court/Special Court has convicted the accused nos.1 to 4, and the High
    Court by the impugned judgment confirmed the conviction and sentence
    7
    Crl.A.No.2298 of 2010
    imposed on the appellant. When the advocate on record who filed the
    appeal was elevated to the Bench, it was for the appellant to make his
    own arrangement for appointing another advocate in the place of earlier
    advocate on record. Appellant did not take any steps in this regard.
    Even notice sent to the appellant was not received by him for want of
    correct address. As such there was no option except to proceed for
    disposal of the appeal filed by the appellant, by appointing amicus
    curiae. On the mere allegation of the appellant that the amicus curiae
    appointed was earlier junior counsel of C.B.I. advocate, is no ground to
    interfere with the impugned judgment. Having perused the findings
    recorded by the trial court/Special Court and of the High Court, we are of
    the view that the findings recorded in support of the case of the
    prosecution were in conformity with the oral and documentary evidence
    on record. We are satisfied from the findings recorded that the appellant
    knowing fully well that the invoices/bills were fake and fabricated, were
    presented on behalf of the firm to the bank and thus cheated the bank.
    The prosecution has proved the guilt of the appellant herein beyond
    reasonable doubt to record conviction of the appellant.
  11. Though the learned counsel for the appellant relied on the
    judgments in the case of Central Bureau of Investigation, Hyderabad v.
    K. Narayana Rao1
    ; K.R. Purushothaman v. State of Kerala2
    ; Bharati
    Telenet Ltd. V. Subhash Jain & Ors.3
    ; and A.S. Krishnan & Ors. V. State
    1
    (2012) 9 SCC 512
    2
    (2005) 12 SCC 631
    3
    (2005) 11 SCC 599
    8
    Crl.A.No.2298 of 2010
    of Kerala4
    , having regard to facts of the case and evidence on record, of
    the case on hand, we are of the view that the said judgments are not
    helpful in support of the case of the appellant.
  12. Having regard to totality of the facts and circumstances of the
    case and evidence on record, taking note of the fact that the appellant
    was working in the firm owned by the accused no.2 and he was salaried
    employee, we deem it appropriate, it is a fit case to modify the sentence
    imposed on the appellant, while confirming the conviction. This Court, in
    State of Madhya Pradesh v. Udham and Others5
    , has clearly laid down
    guidelines for sentencing. In assessing the sentencing, the crime test
    requires us to evaluate and provide adequate deference to factors such
    as role of the accused and his position within the rank of conspirators,
    among other things. There is no dispute that, from the facts and
    circumstances, the appellant was working in the firm owned by accused
    no.2 and he was relatively lower in the hierarchy. It needs to be
    highlighted that he was only a salaried employee. Accordingly, we
    modify the sentence of R.I. for a period of one year for the offence
    punishable under S.120B read with S.161, 166, 420, 471 of I.P. Code
    and also read with S.5(1)(d) further read with S.5(2) of the Prevention of
    Corruption Act, 1947; R.I. for a period of one year and to pay fine of
    Rs.5000/-, in default to suffer further R.I. for period of six months for the
    offence punishable under sec.420, 420-120B of I.P. Code; R.I. for a
    4
    (2004) 11 SCC 576
    5
    2019 SCC OnLine SC 1378
    9
    Crl.A.No.2298 of 2010
    period of one year and to pay a fine of Rs.2000, in default to suffer
    further R.I. for period of three months for the offence punishable under
    S.471 read with S.468 of I.P. Code in respect of the user of seven
    forged motor transport receipts; R.I. for a period of one year and to pay
    a fine of Rs.2000. in default to suffer further R.I. for period of three
    months for the offence punishable under S.471 read with S.468 and
    further read with S.120B of I.P. Code in respect of the user of the 11
    Photostat copies of exhs.942 to 952. We further order that all the
    sentences shall run concurrently.
  13. The appeal is allowed in part to the extent of modifying the period
    of sentence. As the appellant was on bail pursuant to orders passed by
    this Court on 16.11.2009, his bail bonds are cancelled. He shall
    surrender within a period of four weeks from today to serve the
    remaining period of sentence, failing which respondent-State shall take
    steps to take the accused into custody to serve the remaining period of
    sentence.
    ….………………………………..J.
    [N.V. RAMANA]
    ….………………………………..J.
    [R. SUBHASH REDDY]
    ….………………………………..J.
    [B.R. GAVAI]
    10
    Crl.A.No.2298 of 2010
    New Delhi.
    December 18, 2019.
    11