1 O.S.NO.39/06
IN THE XII ADDL. CHIEF JUDGE, CITY CIVIL COURT: SECUNDERABAD
Dated this the 21st day of February, 2017 Present: Smt.K.Sailaja XII Additional Chief Judge
O.S.No.39 of 2006
Between: State Bank of India, Personal Banking Branch, SP Road, Secunderabad, Rep.by its Branch Manager. … Plaintiff
And
1. Smt.C.Rama Devi W/o.Late C.R.Dikshitulu
2. Ch.Satyanarayana
3. Smt Sita Mahalaxmi W/o.Sri Ch.Satyanarayana
4. Yadeti Yadava Rao
5. Malyala Sudhakar S/o.Sri Gopal Rao
6. Bandari Sravan Kumar
7. Vijayanand Malladi
8. G.v.V.S.Peravadhanulu
9. Smt.Buchi Lakshmi W/o.S.V.Ramana
10. A.Ravindranadha Raju …Defendants
This Suit is coming up before me on 16122016 for final hearing in the presence of Sri.M.Narender Reddy, Advocate for the Plaintiff and of Sri.V.Dyumani, Advocate for the Defendant No.1 and of Shaik Kasim Sahed, Advocate for Defendants No.2 and 3 and of Sri Kakumanu Srinivas, Advocate for Defendant No.6 and Defendant 4,5,7 to 10 are remained absent and the matter is coming over for consideration till this day the court delivered the following:
J U D G M E N T
This is a suit filed by the plaintiff bank against the defendants 1 to 10 for recovery of a sum of Rs.1,83,47,11033ps.
2. The petitioner contended that late Sri C.R.Dikshitulu ie., the husband of the 1st defendant and son of the defendants 2 and 3 while working as the Chief
Manager of the plaintiff Bank of Personal Banking branch, SP Road,
Secunderabad committed various acts of fraud and falsification of accounts by creating fictitious entries in the computer system and routed the transactions 2 O.S.NO.39/06 through the multiple accounts opened in the name of defendants 2 and 4 to 10 with their connivance that after verification of the false accounts, it is found that the fraud committed by Sri.C.R.Dikshitulu, the then Chief Manager by falsification of accounts aggregated to a sum of Rs.2,48,72,03020 ps and diverted withdrawal of the funds through different accounts and after verification of the accounts at the plaintiff branch a complaint was filed before the Central
Bureau of Investigation (CBI) and the matter is pending investigation under
Crime No.RC23/A/04CBIHyd with CBI and all the original documents pertaining to the fraud have been handed over the CBI for the purpose of their investigation and restrict its claim for the amount of Rs.1,83,47,11033 ps against the defendants 1 to 3 as legal heirs of late C.R.Dikshitulu for recovery against the assets acquired out of fraudulent funds and his estates now in the hands of the defendants 1 to 3 and also against the defendants 4 to 10 to the extent of amounts diverted from their accounts and utilised by them knowing fully well that the moneys do not belong to them and that the defendants have unjustly enriched from the acts of fraud played by C.R.Dikshitulu and therefore all the money received by them are liable to be restored to the plaintiff bank and the amount that were diverted and credited to the loan accounts were duly reversed and are treated separately as against those are liable to restore the money that ere fraudulently transferred/withdrawn in their accounts and utilized by them knowing fully well that those funds did not belong to them and the defendants 1 to 3 are also liable to the extent of estate of the deceased late C.R.Dikshitulu which estate was devolved upon them.
3. The plaintiff filed the details of the claim made by the State Bank against the defendants as follows:
3 O.S.NO.39/06
A. Claim against Sri Ch.Satyanarayana & Smt.Sita Mahalaxmi – the
defendants 2 and 3:
(a) Late Sri C.R.Dikshitulu, the son of the defendants 2 and 3 while working as
Chief Manager of the plaintiff bank opened on 1882001 with his own introduction, a savings bank account No.01190006144 in the name of the defendants 2 and 3 with a cash deposit of Rs.1,000/ and he also opened on 412002 a recurring current deposit account No.1294006144 in the name of the defendants 2 and 3.
(b) The plaintiff submits that after opening the said accounts late Sri
C.R.Dikshitulu routed several fictitious credit entries in the savings bank account showing them as transfer/standing instructions without moneys being actual deposited by the defendants 2 and 3 and he also transferred the sum of
Rs.1,000/ per month from January, 2002 to August, 2004 to the recurring deposit account No.01294 006144 from the savings bank account. The total fictitious amount credited to the savings bank account of the defendants 2 and 3 by way of transfer/standing instructions is Rs.12,86,03067 ps which is nothing but a fraudulent/fictitious transfer made by late Sri C.R.Dikshitulu and withdrawn from the account of the defendants 2 and 3. After withdrawing such amounts a balance of rs.22367 ps, as on 2582004 was only left in the savings bank account of the defendants 2 and 3. Therefore, the defendants 2 and 3 are liable to restore the amounts together with interest. Further the estates of late Sri
C.R.Dikshitulu now in the hands of defendants 1 to 3 is also liable to answer the claim of the plaintiff bank.
4. B) Claim against Sri Yadeti Yadava Rao – Defendant No.4:
a) Late Sri C.R.Dikshitulu introduced and opened on 1112002, a savings bank 4 O.S.NO.39/06 account No.01190007202 in the name of the 4th defendant with a cash deposit of
Rs.5,500/. After opening the said account late Sri C.R.Dikshitulu with connivance/collusion of the 4th defendant made a fictitious transfer of
Rs.45,00,000/ on 3112002 as a credit to the said account from another account
No.01192075183 of one Sri Subhash Mehtha. Late Sri C.R.Dikshitulu with connivance/collusion of the 4th defendant also made a fictitious transfer of
Rs.14,60,000/ on 4122002 as credit to the account of the 4th defendant from the account No.011092075183 of Sri Subhash Mehtha. This credit was shown as having been received by a credit cheque No.349631 issued by Sri Subhash
Mehtha but in fact, it is a fictitious transfer made by late Sri C.R.Dikshitulu in connivance with the 4th defendant. Similarly, late Sri C.R.Dikshitulu in connivance/ collusion of the 4th defendant made a transfer of Rs.1,00,000/ on 30122002, Rs.3,00,000/ on 322003, Rs.2,00,000/ on 1422003, Rs.2,000/ on 962003 into the account of the 4th defendant. A sum of Rs.1,73012 ps., and
Rs.68175 ps., was also credited in the account of the 4th defendant on 112003 and 272003 as interest on the deposit in the S.B. Account of the 4th defendant.
b) The 4th defendant is fully aware of the fictitious/ fraudulent transfers made by
Sri C.R.Dikshitulu into his S.B. Account and withdrew the said credit amounts from his account by issuing various cheques leaving a balance of Rs.10,39887 ps., in his account. After noticing the fraud played against the plaintiff by the 4th defendant in collusion with the then chief Manager Sri C.R.Dikshitulu a demand notice dated 16122003 was issued to the 4th defendant calling upon him to pay the sum of Rs.65,51,268/ and the 4th defendant sent a vague reply dated 141 2004 while admitting the transactions in his account. But the 4th defendant failed to pay the amount to the plaintiff. The 4th defendant unjustly and fraudulently enriched himself with an amount of Rs.65,51,268/, having withdrawn the same 5 O.S.NO.39/06 from the savings bank account for which he is not entitled. The 4th defendant is liable to pay the sum of Rs.83,64,340/ together with interest at the rate of 13% per annum with monthly rests as applicable to overdraft facility. The estate of deceased Sri C.R.Dikshitulu now in the hands of defendants 1 to 3 is also liable to answer this claim jointly and severally with the 4th defendant as late Sri
C.R.Dikshitulu is a party to the said fraudulent/fictitious transactions.
5. C) Claim against Sri Malyala Sudhakar – the defendant No.5:
a) late Sri C.R.Dikshitulu opened on 2982001, a savings bank account
No.01190006167 in the name of the 5th defendant with a cash deposit of
Rs.5,000/. After opening the said account late Sri C.R.Dikshitulu with connivance/ collusion of the 5th defendant made a fictitious transfer of
Rs.40,00,000/ on the same day i.e., 2982001 as a credit to the said account from inter branch items in transit (IBIT). The said amount transferred as credit to the 5th defendant account does not represent any deposit made by the 5th defendant, but it is a result of computer generated fictitious entry made by late
Sri C.R.Dikshitulu.
b) The plaintiff submits that after the said fictitious/ Fraudulent credit of
Rs.40,00,000/ to the SB account of the 5th defendant, the 5th defendant on 308 2001 has withdrawn the moneys from the said account as under:
DateWithdrawal by AmountFavouring Cheque No.Rs. Ps. 3082001001195861,50,000.00 Self 3082001001195772,00,300.00N.Shobha Rani (BC) 3082001001195762,00,300.00B.Ramesh (BC) 3082001001195842,00,300.00K.Shankaraiah (BC) 3082001001195852,00,300.00Radhika Estates &
Constructions (BC) 6 O.S.NO.39/06 3082001001195822,00,300.00Ch.Srinivasulu (BC) 3082001001195832,00,300.00K.Yadamma (BC) 3082001001195802,00,300.00M.Sunanda (BC) 3082001001195812,00,300.00S.Kondaiah (BC) 3082001001195782,00,300.00K.Nirmala (BC) 3082001001195792,00,300.00V.Vani (BC)
c)The 5th defendant’s wife availed a housing loan of Rs.8 lakhs from State
Bank of India, Abids Road Branch, Hyderabad and 5th defendant is a guarantor to the said housing loan. The personal biodata furnished by the 5th defendant to the said Abids Branch disclosed the fact that the 5th defendant is the Proprietor of
Radhika Estates and constructions. One of the transaction date 3082001 under cheque No.00119585 is for the sum of Rs.20,03,000/ is for issuance of a bankers cheque in the name of Radhika Estates and constructions. The said transaction clearly indicates that the 5th defendant withdrew the moneys unlawfully under a fraudulent way and thus he unjustly enriched himself. Further, late Sri
C.R.Dikshitulu made a fictitious credit transfer of Rs.14,00,000/ on 5102001 into t he savings bank account of the 5th defendant through the system suspense account ( an internal office account of the branch). The 5th defendant withdrew the money knowing fully well that the said amount is also from the fraudulent/fictitious credit to his account.
d) The 5th defendant is fully aware of the fictitious/ fraudulent transfers made by Sri C.R.Dikshitulu into his S.B.Account and withdrew the said credit amount from his account by issuing various cheques. After noticing the fraud played against the plaintiff by the 5th defendant in collusion with the then Chief Manager
Sri C.R.Dikshitulu a demand notice dated 22122003 was issued to the 5th defendant calling upon him to pay the sum of Rs.54,12,771/ together with interest and the 5th defendant sent a vague reply dated 2732004 while admitting the opening of the savings bank account. The 5th defendant also made a false 7 O.S.NO.39/06 claim stating that he has given cash of Rs.40 lakhs to the then Branch Manager, which is far from truth. A further reply was sent by the Bank on 2562004 denying the false and baseless allegations made by the 5th defendant in the reply
dated 2732004.
e) The 5th defendant also filed a complaint No.36/200405 before the Hon’ble
Banking Ombudsman, Hyderabad making false claim against the Bank and the said complaint was rejected. The 5th defendant failed to pay the amount claimed to the plaintiff. The 5th defendant unjustly and fraudulently enriched himself with an amount of Rs.54,12,271/ having withdrawn the same from the savings bank account for which he is not entitled. The 5th defendant is liable to pay the sum of
Rs.69,10,762/ together with interest at the rate of 13% per annum with monthly rests as applicable to overdraft facility. The estate of deceased Sri C.R.Dikshitulu now in the hands of defendants 1 to 3 is also liable to answer this claim jointly and severally with the 5th defendant as late Sri C.R.Dikshitulu is a party to the said fraudulent/ fictitious transactions.
6. D) claim against Sri B.Sravan Kumar – the Defendant No.6:
a) Late Sri C.R.Dikshitulu opened on 1542002, a savings bank account
No.01190006672 and current account No.01090006672 on 2672002 in the name of the 6th defendant. After opening the said accounts on 372003 a sum of
Rs.2 lakhs and on 1272003 a further sum of Rs.2 lakhs were transferred from the current account ot t he savings bank account of the 6th by late C.R.Dikshitulu the then chief Manager showing it as standing instructions. The said two entries are computer generated fictitious entries posted by late C.R.Dikshitulu. A further credit of Rs.2 lakhs was also shown on 1972003 in the current account of the 5th defendant, which was also a fictitious computer generated entry, which amount 8 O.S.NO.39/06 was again transferred from the said current account of the 5th defendant to the account of Mr.S.Ravi Kumar. All the three credits shown in the current account for the sum of Rs.2 lakhs each totalling for Rs.6 lakhs are fictitious entries and the said debit balance in the current account were closed by late Sri C.R.Dikshitulu from the authorised cancellation of term deposits of A.P.Housing Board (APHB) lying with the plaintiff bank. In so far as the amount of Rs.4 lakhs representing the transfer from current account in the name of the 6th defendant to hi savings bank account under the entries of Rs.2 lakhs on 372003 and Rs.2 lakhs on 127 2003 are the fraudulent/fictitious entries and the funds do not pertain to the 6th defendant. In so far as the credit entry of Rs.2 lakhs on 1972003 in the current account of the 6th defendant and which was again transferred to the SB account of
Sri S.Ravi Kumar, a separate action is being initiated.
b) The 6th defendant is fully aware of the fictitious/fraudulent transferes made by
Sri C.R.Dikshitulu into his current account and also transfer of money from the current account to his SB account. The 6th defendant withdrew the said credit amounts of Rs.4lakhs from his savings bank account, though he is not entitled for the same and thus unduly enriched by himself by withdrawing the said money.
c) After noticing the fraud by the officials of the plaintiff Bank, the 6th defendant through the letter dated 14112003 made a false claim contending that he had been sanctioned a mortgage loan of Rs.4 lakhs on deposit of title deeds of the house at Hyderbasthi, Secunderbad. A notice of demand dated 99 2004 was issued to the 6th defendant calling upon him to pay the sum of a Rs.4 lakhs together with interest and the 6th defendant sent a false reply dated 289 2004. A further reply was sent by the bank on 26122004 denying the false and baseless allegations made by the 6th defendant in the reply dated 2892004. A further legal notice dated 2422005 was also sent by the 6th defendant for which 9 O.S.NO.39/06 a reply dated 1632005 was sent by the plaintiff bank denying the allegations of the 6th defendant as no overdraft against the mortgage of the house property was granted to the 6th defendant.
d)The plaintiff submits that the 6th defendant failed to pay the amount claimed to the plaintiff. The 6th defendant unjustly and fraudulently enriched himself with an amount of Rs.4 lakhs, having withdrawn the same from the savings bank account for which he is not entitled. The 6th defendant is liable to pay the sum of Rs.5,10,701/ together with interest at the rate of 13% per annum with monthly rests as applicable to overdraft facility. The estate of deceased Sri
C.R.Dikshitulu now in the hands of defendants 1 to 3 is also liable to answer this claim jointly and severally with the 6th defendant as late Sri C.R.Dikshitulu is a party to the said fraudulent /fictitious transactions.
7. E) Claim against Sri vijayanand Malladi – the defendant No.7:
a) Late Sri C.R.Dikshitulu in collosion with the 7th defendant opened on 26 2002 a current account No.01090006819 in the name of the 7th defendant with a debt of Rs.30,000/ as loan to the 7th defendant. Even though the 7th defendant has nto repaid the said debt, late Sri C.R.Dikshitulu, the then Chief Manager in collusion with the 7th defendant created a fraudulent/fictitious credit entry on 30 62003 for the sum of Rs.34,96135 ps., and showed the balance as nil. As the credit entry dated 3062003 for the sum of Rs.34,96135 ps., in the current accountof the 7th defendant itself is a fictitious/fraudulent entry made by late Sri
C.R.Dikshitulu, the 7th defendant is liable to pay the said amount of Rs.34,96135 ps., together with future interest and costs.
b) The 7th defendant is fully aware of the fictitious/fraudulent entry dated 30 62003 made by Sri C.R.Dikshitulu into his current account and therefore he is 10 O.S.NO.39/06 liable to pay the said amount. After noticing the fraud played against the plaintiff by the 7th defendant in collusion with the then Chief Manager Sri C.R,Dikshitulu a demand notice dated 992004 was issued to the 7th defendant calling upon him to pay the sum of Rs.34,96135 ps., together with interest and the 7th defendant failed to pay the same.
c) The 7th defendant unjustly and fraudulently enriched himself with an amount of Rs.34,96135 ps., having received the amount from the plaintiff. The 7th defendant is liable to pay the sum of Rs.44,63735ps., together with interest at the rate of 13% per annum with monthly rests as applicable to overdraft facility.
The estate of deceased Sri C.R.Dikshitulu now in the hands of defendants 1 to 3 is also liable to answer this claim jointly and severally with the 5th defendant as late
Sri C.R.Dikshitulu is a party to the said fraudulent/fictitious transactions
8. F) Claim against Sri G.V.V.S.Peravadhanulu – the defendant No.8:
a) At the request of the 8th defendant a current account No.01090005472 was opened on 2532000 and a savings bank account No.01190005472 was opened on 892001. The 8th defendant also availed a personal loan of Rs.2,50,000/ from the plaintiff bank through loan account No.01593005472 and the said loan amount of Rs.2,50,000/ was transferred at his request to his SB account on 189 2001. The 8th defendant has withdrawn the moneys from the current account with a debit balance of Rs.1,49,89265 ps payable to the plaintiff bank as on 306 2003.
b) the plaintiff submit that Sri C.R.Dikshitulu, the then Chief Manager in collusion with the 8th defendant made fictitious/fraudulent credit entries of
Rs.1,49,89265 ps., on 3062003 in the current account No.01090005742, Rs. 2 11 O.S.NO.39/06 lakhs on 3132003 in the savings bank account No.01190005742 and
Rs.1,69,89719 ps., in the personal loan account No.01593005742. The 8th defendant is not entitled for the said amounts, which were made by the then
Chief Manager Sri C.R.Dikshitulu in a fraudulent/fictitious manner as the 8th defendant has not made any deposit on the said dates in his said three accounts.
After noticing the fraud played against the plaintiff by the 8th defendant in collusion with the then chief Manager Sri C.R.Dikshitulu a demand notice dated 26122004 was issued to the 8th defendant calling upon him to pay the sum of
Rs.5,19,78975 ps., together with interest and the 8th defendant failed to pay the same.
c) The 8th defendant unjustly and fraudulently enriched himself with an amount of Rs.5,19,78975 ps., having received the amount from the plaintiff. The 8th defendant is liable to pay the sum of Rs.6,63,64274 ps., together with interest at the rate of 13% per annum with monthly rests as applicable to overdraft facility. The estate of deceased Sri C.R.Dikshitulu now in the hands of defendants 1 to 3 is also liable to answer this claim jointly and severally with the 5th defendant as late Sri C.R.Dikshitulu is a party to the said fraudulent/fictitious transactions.
9. G) Claim against Smt.Bushi Lakshmi – the defendant No.9:
a) At the request of the 9th defendant a current account No.01090007355 was opened on 2722003 initially in the name of 9th defendant and her husband Sri
S.V.Ramana and lateron, the then Chief Manager Sri C.R.Dikshitulu authorized the opening of said current account in the name of the 9th defendant.
b) the 9th defendant on 2722003 drew 13 cheques on her account for the total sum of Rs.5,99,000/ favouring gopalakrishna constructions. On 532003, the 9th 12 O.S.NO.39/06 defendant against withdrew a sum of Rs.1,50,000/ through cheque
No.00359614. Thus, the total sum outstanding and payable by the 9th defendant to the plaintiff in the current account as on 3132003 was Rs.7,55,53579 ps., (which is inclusive of interest of Rs.5,53579 ps.,) The 9th defendant on 313 2003 paid a sum of Rs.7,50,000/ by way of credit to the current account leaving a debit balance of Rs.5,53579 ps.
c) The plaintiff submits that on 742003, the 9th defendant obtained a bankers cheque No.335153 for Rs.1,50,000/ favouring her husband Sri S.V.Ramana and the said bankers cheque was encashed by Sri S.V.Ramana in clearance.
Therefore, the 9th defendant was liable to pay to the plaintiff the unpaid amount of Rs.5,53579 ps., under the current account and also Rs.1,50,000/ towards the bankers cheque issued in favour of her husband.
d) Late Sri C.R.Dikshitulu, the then Chief Manager in collusion with the 9th
Defendant made fictitious/fraudulent computer generated entry of Rs.5,53579 ps., in the current account on 3132003 and Rs.1,50,000/ on 2142003, which resulted the closure of the account of the 9th defendant. The 9th defendant thus unlawfully enriched herself with the said amount of Rs.1,55,53579 ps., for which she is not entitled to retain. The 9th defendant is not entitled for the said amounts, which were made by the then Chief Manager Sri C.R.Dikshitulu in a fraudulent/fictitious manner as the 9th defendant has not made any deposit on the said dates. After noticing the fraud played against the plaintiff by the 9th defendant in collusion with the then Chief Manager Sri C.R.Dikshitulu a demand notice was issued to the 9th defendant calling upon her to pay the sum of
Rs.1,55,53579 ps., together with interest and the 9th defendant failed to pay the same.
13 O.S.NO.39/06
e) The 9th defendant unjustly and fraudulently enriched herself with an amount
Rs.1,55,53579 ps., having received the amount from the plaintiff. The 9th defendant is liable to pay the sum of Rs.1,98,58079 ps., together with interest at the rate of 13% per annum with monthly rests as applicable to overdraft facility.
The estate of deceased Sri C.R.Dikshitulu now in the hands of defendants 1 to 3 is also liable to answer this claim jointly and severally with the 9th defendant as late
Sri C.R.Dikshitulu is a party to the said fraudulent/fictitious transactions.
10. H) Claim against Sri Alluri Ravindranadha Raju – the defendant
No.10.
a) On request of the 10th defendant and 2 others, a housing loan against mortgage was sanctioned and released by the plaintiff bank through the account
No.11593005155. the 10th defendant was due and payable to the plaintiff a sum of Rs.9,79778 ps., as on 3132003 in the said loan account.
b) Late Sri C.R.Dikshitulu the then Chief Manger made on 3132003 a fictitious/fraudulent computer generated entry of Rs.9,78778 ps resulting in closure of loan account of the 10th defendant. In fact, no payment was made either by the 10th defendant or any body into the account on 3132003 and the 10th defendant is liable to pay the said amount to the plaintiff.
c) The 10th defendant is fully aware of the fictitious/fraudulent entry dated 313 2003 made by Sri C.R.Dikshitulu into the loan account and therefore he is liable to pay the said amount. After noticing the fraudulent entry, a demand notice
dated 1692004 was issued to the 10th defendant calling upon him to pay the
sum of Rs.9,79798 ps together with interest and the 10th defendant failed to pay the same.
14 O.S.NO.39/06
d) The 10th defendant unjustly and fraudulently enriched himself with an amount of Rs.9,79798 ps. The 10th defendant is laible to pay the sum of
Rs.12,50878 ps, together with interest at the rate of 13% per annum with monthly rests as applicable to overdraft facility. The estate of deceased Sri
C.R.Dikshitulu now in the hands of defendants 1 to 3 is also liable to answer this claim jointly and severally with the 10th defendant as latge Sri C.R.Dikshitulu is a party to the said fraudulent/fictitious transactions.
11. In view of the above noticed irregularities committed by deceased
C.R.Dikshitulu notices were send to the defendants calling upon them to pay the amounts but has no replies were received from other defendants except
Defendants 4,5 and 6 and no payments were made. The plaintiff firm prays the court to pass the judgment and decree in view of the plaintiff against the defendants 1 to 3 along with defendants No.4 to 10 a sum of Rs,1,83,47,1103 ps at the rate of 13 % interest per annum from the date of suit till realization by ordering sale of plaint schedule properties in the custody of the defendants 1 to 3 towards realization of the suit claim.
12. The written statement was filed by the defendant No.1 and she denied all the averments made by the plaintiff and defendant has stated that the suit which was framed and filed is not maintainable and is liable to be dismissed in limini.
According to her C.R.Dikshitulu joined in the plaintiff bank in the year 1979 as clerk cum Typist and he was promoted from time to time and he was promoted as
Chief Manager in 2001 and worked in the plaintiff branch till his death and it was further submitted that C.R.Dikshitulu while working as Chief Manager went to the plaintiff bank at 9.00 a.m on 1292003 and he was on duty on 1292003 15 O.S.NO.39/06 and she received a phone call in the evening on 1292003 from government
Railway police station, Secunderbad to visit the station and identify the dead body of her husband and as per the FIR and inquest report it is given to understand that Sri C.R.Dikshitulu fell down accidentally while travelling in ‘Golconda Express’ from Secunderabad to Bhongiri and received grievous injuries resultantly died at 13.15 hours on 1292003 and the postmortem was conducted on 1392003. She further submitted that allegation of plaintiff bank that her husband committed fraud and Rs.1,83,47,110/ was misappropriated and all other allegations are absolutely false and invented only to through mud on a dead person and to wash their hands. It was further stated that the plaintiff has not filed single scrap of paper to prove that the husband of defendant has utilized the said money and acquired assets out of the said money. According to her the the flat in ground floor of Srinivasa Apartment, Brodipet, Guntur was purchased by
Sri C.R.Dikshitulu in the year 1990 under registered sale deed out of the first housing loan availed by him as an employee of the plaintiff bank and the said housing loan was fully repaid and closed out of the salary and savings. According to her C.R.Dikshitulu purchased item No.2 of plaint schedule property ie., the flat
No.504, in Saraswathi Residency, Padmaraonagar out of the second housing loan amount availed as an employee of the bank in the year 2000 and the said
C.R.Dikshitulu has not left any estate except the two flats which was purchased out of the housing loan of Rs.6,00,000/, personal loan from plaintiff bank of
Rs.1,20,000/ Officers Cooperative Credit Society loan of Rs.65,000/, NSC maturity proceeds of Rs.20,100/ and LIC money back policy instalment of
Rs.30,000/. Thus it was therefore incorrect and baseless to allege that the two flats were purchased and acquired by Sri C.R.Dikshitulu out of the fraudulent funds. It was further submits that it is part of bank record that item No.1 of 16 O.S.NO.39/06 schedule mentioned property was purchased in the year 1990 and item No.2 was purchased in 2000 long ago by availing staff housing loans from the plaintiff
Bank. It is submitted that the plaintiff branch is a scale –IV branch and under the concurrent audit by a qualified Chartered Accountant. The allegations in the plaint that a fictitious transfer of Rs.45.00 lakhs was made on 3112002 from
A/c. No. 0119207583/1 of one Sri Subash Mehta to the A/c.No.0119070072027 of defendant No.4 and another fictitious transfer of Rs.15,14,000/ was made on 4122002 to the account of the defendant No.4 from the account of Sri Subash
Mehta and made a transfer of Rs.1,00,000/ on 30122002, Rs.3.00 lakhs on 32 2003, Rs.2.00 lakhs on 1422003, Rs.3,00 lakhs on 322003, Rs.2.00 lakhs on 1422003, Rs.2,000/ on 1962003 to the credit of A/c of defendant No.4 and made a fictitious transfer of Rs.40.00 lakhs on 2982001 from Inter Branch Items in transit (IBIT) to the credit of account of 5th defendant and made a fictitious credit transfer of Rs.14.00 lakhs on 5102001 into the saving bank account of 5th defendant through systems suspense account (an internal office account) of the branch, that two fictitious entries were made and a sum of rs.2.00 lakhs was transferred on 372003 and a further sum of Rs.2.00 lakhs was transferred on 1272003 and a further credit of Rs.2.00 lakhs was shown on 1972003 in the current of 5th defendant and the said debit balance in the current account was closed from the unauthorized cancellation of term deposits of A.P.Housing Board, that C.R.Dikshitulu opened S.B.Account in the name of 6th defendant and made fictitious entries amounting of Rs.6,00,000/ and the amounts were transferred to the S.B.Account of S.Ravi Kumar, that a current account was opened in the name of 7th defendant and made a fictitious credit entry on 3062003 for Rs.34,96135, that C.R.Dikshitulu opened a current account in the name of defendant No.8 and made a fictitious entry on 3062003 for Rs.1,49,892, a current account was 17 O.S.NO.39/06 opened in the name of defendant No.9 and her husband and made fictitious entries and defendant No.9 withdrew the money through cheques, that
C.R.Dikshitulu sanctioned housing loan to defendant No.10, that the defendant
No.1 being the legal heir and representative of the estate of late C.R.Dikshitulu is liable and answer to the suit claim and all other allegations are invented with a malafide intention to obtained unlawful gain after the death of the husband of this defendant.
13.It was further submitted as per the rules prescribed by the bank the self cheques/withdrawals of the late C.R.Dikshitulu from the joint S.B.A/c. of defendant No.2 and 3 cannot be passed by himself as he is heading the branch.
Similarly the credit entries to this account cannot be permitted by himself. The second level officers in the branch are only competent to permit debit or credit from or to the S.B.A/c of late C.R.Dikshitulu and defendant No.2 and 3 maintained with plaintiff bank after satisfying the genuiness of the transactions.
The internal Auditors and Inspectors of the bank during their periodical inspection for every half year should verify the personal accounts of the bank staff to find out whether any misleading or fraudulent entries are make in the accounts of the staff. It is pertinent to note that the plaintiff bank has not placed any report to that effect. ‘Therefore the alleged storey setup by the plaintiff that the defendant No.1 to 3 are liable to pay Rs.16,41,93167/ is false, baseless and unsustainable. She further submits that during the life time of C.R.Dikshitulu, the plaintiff bank had not issued any show cause notice or charge sheet in respect of the alleged fictitious entries dated 2982001 onwards, that the statutory auditors, internal inspectors, reserve bank of India Auditors, system Inspectors audited the branch for every half year ie., in October, 2001, April 2002, October 18 O.S.NO.39/06 2002, April, 2003. It is pertinent to note that none of the auditors or Inspectors have pointed out the above alleged fictitious entries said to have made by
C.R.Dikshitulu and it is further submitted that plaintiff may be directed to produce the reports of Inspectors/Auditors from 2001 to 2004 to elicit the truth in the allegation made by the plaintiff. It is further contended that as the Chief
Manager the deceased C.R.Dikshitulu only administered and coordinated the smooth functioning of the branch. The credit and debit entries and vouchers are made by the concerned staff in the plaintiff branch, after satisfying the genuiness of the transaction. It is pertinent to note that each and every credit entry and debit entry running into lakhs requires joint authorization from the officers who are looking after the concerned seat. The books of the branch with regard to the
S.B.Account, Current Account, Inward clearing and outward clearing and other
GLB heads (General Ledger Balance) are required to be balance as per the accounting norms of the bank for every half year. The accounting books are balanced by the staff of the concerned departments and the Chief Manager is nothing to do with regard to making of entries or balancing of the books and it is exclusive domine of the heads of the concerned departments in the branch.
Therefore it is highly impossible and improbable to say that Sri C.R.Dikshitulu has made all fictitious transfers with a malafied intention to obtained unlawful gain.
It was further stated that the plaintiff has not filed a single scrap to prove that the husband of the defendant has utilized the said money and acquired any assets out of the said money and on perusal of the statement of account of defendant No.4, it is observed credit entries were made on 3132003 for 70,00,000/, on 313 2003 for Rs.11,00,000/, on 2542003 for Rs.70,00,000/, on 2842003 for
Rs.1,00,000/, on 3062003 for Rs.73,27,308/ on 3062003 for Rs.9,21,058/, on 3172003 for Rs.23,179,86/, on 3172003 for Rs.83,25,186 in the account 19 O.S.NO.39/06
No.0159070072027 of the defendant No.4 and there is no whisper about these entries in the plaint and the plaintiff has suppressed these facts therefore defendant further contended that in view of the section 18 of Recovery of debts due to banks and Financial Institution Act, 1993 and establishment of Debts
Recovery tribunal at Hyderabad for the state of A.P., this court has no jurisdiction to entertain the suit and liable to be dismissed.
14. Defendants No.2 and 3 are the mother and father of the late C.R.Dikshitulu and according to them the address shown by the bank is not correct address and they are permanent resident at Guntur. According to them they have no knowledge about the allegation that their son working as Chief Manager of bank has committed various acts of fraud and falsification of account by creating fictitious entries in the computer system and routed the transactions. Thus, the defendants by denying the allegations alleged against C.R.Dikshitulu have stated that they have no knowledge about the allegations that the amounts that were diverted and credited to the loan accounts were duly reversed and are treated separately as against those account holders for recovery. They also have submitted that they have no knowledge about the allegation that their son while working as Chief Manager of the plaintiff bank opened a account on 1882001 in the name of Defendant No.1 and defendant No.3 with his own introduction and deposited Rs.1,000/ and also opened another account on 412002 for recurring current account in the name of Defendants No.2 and 3. Similarly they denied any knowledge about the said allegations till receipt of the plaint and suit documents.
Similarly they deny the knowledge about the allegations that after opening the said accounts late C.R.Dikshitulu routed several fictitious credit entries in the savings bank account showing them as transfer/standing instructions without 20 O.S.NO.39/06 moneys being actual deposited by the defendants No.2 and 3 and that he also transferred the sum of Rs.1,000/ per month from January, 2002 to August 2004 to the recurring deposit and transactions. With regard to the flat No.404 admeasuring 1117 sq.fts together with the undivided share of land of 30 sq.yards of the building Manasa Residency, house No.11211171/1/9/A, situated at
Brahmanbasthi, begumpet, Hyderabad, the defendants No.2 and 3 have stated that they did not receive any notice as they are residing at Guntur and they denied that as legal heirs and successors in interest of Sri C.R.Dikshitulu are liable to answer the suit claim jointly and severally along with the defendants 4 to 10 to the extent of the amounts claimed against each of them. The defendants No.2 and 3 came to know after their appearance before the court that the bank dishonestly got published a notice in Eenadu and Deccan Chronicle daily news papers dated 6112003 cautioning the general public about the claim of the bank and it was contended that the bank is not entitled to give such notice as to the properties of the defendant No.3 and defendants No.2 and 3 deny that the plaint schedule properties are liable to be attached and sold for realization of the suit claim amount and that the defendants 2 and 3 are liable to pay the sum due to the plaintiff to the extent of the amounts paid against them and all these allegations false and created for the purpose of the suit. It was further contended by the defendants that documents 1 to 3 are fabricated documents and as to the document No.1 of the plaint the late C.R.Dikshitulu obtained signatures of defendants No.2 and 3 on the SB account application form at Guntur and on the pretext of opening SB account only in the name of defendant No.2 and 3, to send maintenance amount to them and the deceased late Sri C.R,Dikshitulu has not intimated about the said account to the defendants No.2 and 3 and the defendants forgot about the signing on the said application and could not 21 O.S.NO.39/06 pursued the same due to old age. No after receiving the summons in the suit and after receipt of the copies of the plaint and documents surprisingly came to know that without the knowledge and consent of the defendant No.2 and 3, deceased late Sri C.R.Dikshitulu altered the application and included his name without any authority and struck out the word either and wrote any one. The inclusion of the name of C.R.Dikshitulu striking of either and putting any one is not within the knowledge of the defendant No.2 and 3 and C.R.Dikshitulu has not taken any consent from the defendant No.2 and 3 and the alteration was not ratified by the defendants No.2 and 3 by putting their signatures and the they never visited the bank for giving application nor given application personally nor obtained pass books nor operated the said account nor having knowledge about the said account and the document No.1 is a fabricated and void document and the said document was not submitted to the bank as per the intentions of the defendants
No.2 and 3 are not a valid offer for opening the account and it is void as per the
Contract Act. According to them the defendant No.3 is the absolute owner and possessor of flat No.404 Manasa Redidents Apartments, at Brahmana Basti under
Maredpally sub Registrar and purchased out of her own money and it is stridhana of defendant No.3 as per the section 14 of Hindu Succession Act and the plaintiff bank has not right or locus stand to show the property of defendant No.3 as schedule property in the plaint and the bank highhandedly, deliberately, dishonestly showed the same, knowing fully that the said property was exclusively belongs to the defendant No.2.
15.The defendant No.6 filed the written statement denying all the averments made in the paras 1 to 8 of the plaint and submitted that the defendant No.6 is holding a savings bank account No.01190006672 in plaintiff’s branch, and in 22 O.S.NO.39/06 regular operation of the account and the defendant No.6 approached the plaintiff for a over draft facility against mortgage of the plaintiff’s house property bearing
No.5256, Hyder basti, Secunderabd and the same was sanctioned in the month of July, 2003 and the defendant No.6 has executed necessary documents in favour of the bank and created equitable mortgage over the plaintiffs house property by deposit of title deeds of the plaintiffs house property and having received the original title deeds of the defendant No.6’s house property the then
Branch Manager of the plaintiff bank acknowledged the receipt of original
Registered lease deed No.38/34 dated 3041934 and original registered partition deed No.142/85, dated 2641985 in respect of the defendant No.6’s house property, on 2062003 and the original receipt of which is filed herewith as exhibit and according to the defendant he was not aware of the fraud committed by the then Manager Sri C.R.Dikshitulu and the defendant No.6 denied the plaintiff’s allegation that the defendant No.6 had sufficient knowledge of the acts of fraud committed by the said person is not only blatantly false but recklessly made by the plaintiff which are per se highly defamatory in nature. According to him the entries reflected in the defendants No.6 account are generated from the plaintiff’s end and the plaintiff is liable for all acts of commission and omission including the acts of the plaintiff’s Manager Sri C.R.Dikshitulu and the defendant
No.6 further submit that this is incorrect to state that all the credit entries in the defendant No.6 account are not genuine, and the then Manager on execution of all documents in favour of the bank and on creation of equitable mortgage in favour of the bank on the above said house property belonging to the defendant
No.6 by taking and acknowledging the deposit of all title deeds of the defendant
No.6’s house property granted the said facility. According to him there was no over draft facility given to defendant No.6 and if the entries in the defendant 23 O.S.NO.39/06
No.6’s account for Rs.2,00,000/ each are fictitious, how the plaintiff can demand
Rs,4,00,000/ from the defendant No.6 with interest at the rate of 14.5% p.a and in respect of visiting the plaintiffs office defendant No.6 furnished the copies a title deeds together with the encumbrance certificate, tax receipts etc., and the plaintiff has been postponing the same on one pretext or the other. The defendant No.6 further submitted that over draft facility was granted and defendant No.6 has rightful withdrawing the same and it is incorrect to stated that the same does not belong to defendant No.6 and submit that the defendant
No.6 intending to close the defendant No.6’s account and also discharge the over draft facility of Rs.4,00,000/ subject to returning of the original title deeds and other connected documents within one week and prays the court to dismiss the suit. The defendants 4,5,7 to 10 were set exparte.
16.On perusing the pleadings the following issues were framed:
1. Whether this court has no jurisdiction to entertain this suit?
2. Whether Late C.R.Dikshitulu had fraudulently diverted the funds by creating fictitious entries in the accounts as alleged in the plaint?
3. Whether Late C.R.Dikshitulu had utilized the fraudulent funds for purchasing the suit schedule properties in his name and I n the name of his mother?
4. Whether the defendants No.1 to 3 and 6 are liable to pay the amounts, as claimed by the plaintiff?
5. Whether the plaint schedule properties are liable to be sold for realisation of the suit claim?
6. To what relief?
24 O.S.NO.39/06
17.Issue No.1 : Whether this court has no jurisdiction to entertain this suit?
I do not agree with the contentions of the learned counsel that this court has no jurisdiction the suit was filed simply before this court for recovery of money out of the assests of the defendants and therefore section 18 of RDDB and FI Act does not come into the way of plea of jurisdiction.
18. Issue No.2 and 3:
Whether Late C.R.Dikshitulu had fraudulently diverted the funds by creating fictitious entries in the accounts as alleged in the plaint? and Whether
Late C.R.Dikshitulu had utilized the fraudulent funds for purchasing the suit schedule properties in his name and I n the name of his mother?
The plaintiff Branch Manager was examined as PW1 and the Defendant
No.1 was examined as DW1. No documents were marked. During the examination of the plaintiff the following documents were marked by the plaintiff vide Exs.A1 to A44 viz., Ex.A1 is the true copy of account opening form. Ex.A2 is the true extract of statement of S.B.a/c 01190006144. Ex.A3 is the true extract of statement of recurring a/c 01294006144. Ex.A4 is the copy of account opening form of S.B.a/c.01190007202. Ex.A5 is the true extract of statement of S.B. a/c
No. 01190007202. Ex.A6 is the true extract of demand loan a/c.No.01590007202. Ex.A7 is the true extract of statement of SB a/c.No.
01190007186. Ex.A8 is the true copy of cheque No.349631 transferring the money of the account of 4th defendant. Ex.A9 is the true copy of the cheques drawn by the 4th defendant and copy of deposit voucher (vouchers 89 Nos) which is bookII. Ex.A10 is the officer copy of the notice of demand dated 16122003.
Ex.A11 is the true copy of reply of the 4th defendant dated 1412004. Ex.A12 is the true copy of account opening form of S.B. a/c 01190006167. Ex.A13 is the 25 O.S.NO.39/06 true copy of pay in slip for Rs.40,00,000/. Ex.A14 is the true copies of cheques drawn by the 5th defendant from the SB account (10Nos). Ex.A15 is the true copy of the biodate furnished by the 5th defendant at the time of giving guarantee to the housing loan of his wife. Ex.A16 is the true extract of statement of S.B.a/c 01190006167. Ex.A17 is the office copy of the notice of demand dated 2212 2003. Ex.A18 is the true reply copy of the reply of the 5th defendant dated 273 2004. Ex.A19 is the true copy of the reply of the plaintiff dated 2562004.
Ex.A20 is the true copy of account opening form of S.B. a/c 01190006672.
Ex.A21 is the true extract of statement of S.B a/c. 01190006672. Ex.A22 is the true extract of statement of current a/c 01090006672. Ex.A23 is the true copy of the letter of the 6th defendant dated 14112003. Ex.A24 is the office copy of the notice of demand dated 992004. Ex.A25 is the true copy of reply of the 6th defendant dated 2892004. Ex.A26 is the true copy of reply of the plaintiff dated 26122004. Ex.A27 is the true copy of the legal notice from the 6th defendant
dated 2422005. Ex.A28 is the true copy of the reply to the legal notice dated
1632005. Ex.A29 is the copy of account opening form of current a/c.01090006819. Ex.A30 is the true extract of statement of current a/c.01090006819. Ex.A31 is the office copy of the notice of demand dated 0909 2004. Ex.A32 is the true copy of account opening form of current a/c 01090005472. Ex.A33 is the true copy of account opening form of SB a/c.01190005472. Ex.A34 is the true extract of statement of current a/c 01090005472. Ex.A35 is the True extract of statement of SB a/c.01190005472.
Ex.A36 is the true extract of statement of personal loan a/c.01593005472. Ex.A37 is the true copy of office copy of the notice of demand dated 26122004. Ex.A38 is the true copy of account opening form of current a/c 01090007355. Ex.A39 is the true copy of application for issue of banker cheque for Rs.1,50,000/ dated 7 26 O.S.NO.39/06 42003. Ex.A40 is the true copies of the cheques drawn by the 9th defendant (13nos). Ex.A41 is the true extract of statement of current a/c 01090007355.
Ex.A42 is the true extract of statement of loan a/c 01593005155/00. Ex.A43 is the true copy of the office copy of the notice of demand dated 1692004. Ex.A44 is the true copy of the office copy of the legal notice dated 222006.
19. The witness has stated that he was working in the plaintiff bank since June, 2015, earlier he never worked in the plaintiff branch and he was not present in the branch when Exs.A1 to A44 came into existences. The defendants husband joined as clerk cum cashier in the branch and was promoted from Clerk to JMI
Officer, thereafter MMGII and thereafter MMGIII and SMGIV scale and became
Chief Manager of the branch and he has no idea about whether any disciplinary action was initiated against him during his entire tenure and he has no idea as to whether any concurrent audit was done during the period 20012003 in the branch. He further admitted that the duties of an auditor during a concurrent audit is checking interest application, loan documents, security of high value transaction etc., ie., above one lakh transactions are considered as high value transaction and the auditor has to check the above transaction daily and the witness further ignore about the period of reporting to the controller and branch also and he could not say how many times the inspections held during the period 2000 to 2003 and whether item No.1 of the plaint schedule property was purchased by husband of Defendant No.1 in the year, 1990 by availing staff housing loan and item No.2 by availing staff house loan. It is further stated that he had not filed the details of assets acquired either in his name and his family members and the first housing loan was closed with the misappropriation amounts by the him and he has no details of the date of closure of first housing 27 O.S.NO.39/06 loan and which amount of misappropriation the loan was repaid as they are with the CBI and 2nd housing loan can be avail without closing and avail previous housing loan by the employees. The witness was not even well acquainted whether the KYC norms are followed or not followed at the time of opening accounts. The witness appears to have deposed and narrated the acts as per the records and in no way the plaintiff could prove that the defendants have accumulated their assets through the alleged misappropriation done by the plaintiff.
20. The defendant No.1 who was examined as DW1 has narrated that on 12 92003 he went to the plaintiff bank at 9.00 a.m and while he was on duty she was informed by the government Railway Police station, Secunderabad that
C.R.Dikshitulu fell down accidentally while travelling in “Golkonda Express” from
Secunderabad to Bhogiri and received injuries and resultantly died at 13.45 hours on 1292003 and the postmortem on 1392003 was conducted on 1392003 body was handed over for performing last rites. She was shocked to hear the news of the death of her husband was in great trauma and she was a house wife and is not well versed with the official duties and functions of her husband committed fraud and Rs.1,83,47,110/ was misappropriated as alleged by the plaintiff bank. Aqccording to her the flat in the ground floor of Srinivas
Apartment, Brodipet, Guntur was purchased in the year 1990 though housing loan availed by C.R.Dikshitulu as an employee and the said housing loan was fully repaid and closed out of the salary and savings and purchased the Flat
No.505 in Saraswathi Residency, Padmaraonagar out of the second housing loan in the 2000 except the two flats he has not left any estate and the flats was purchased out of housing loan, Officers Cooperative Credit Society loan, NSC 28 O.S.NO.39/06
Maturity proceeds and LIC money back policy. She further had stated that during the life time of C.R.Dikshitulu, the plaintiff bank has not issued any show cause notice or charge sheet in respect ofo the alleged fictitious entries dated 2982001 none of the auditors, Internal Inspectors, Reserve Bank of India Auditors, System
Inspectors audited the branch for every half year and one of the Auditors or
Inspectors have pointed out the alleged fictitious entries said to have made by
C.R.Dikshitulu. During cross examination she denied whether her late husband misappropriate the bank amount in the capacity of Chief Manager of SBI, SP Road
Branch, Secunderabad and transferred to the accounts of Defendant No.2 to
Defendant No.10 and that D2 to D10 had withdrawn amounts and she further denied the opened the accounts of the defendant No.2 to 10 and transfer the money fraudulently to their accounts. She further denied the suggest that as the legal heirs have succeeded the property of the Late C.R.Dikshitulu and they are liable to pay the misappropriated amounts made by Late C.R.Dikshitulu and she denied that, on account of the fraudulent withdrawal in collusion with D2 to D10 the bank has suffered a loss of 1,83,47,110/ and they are liable to pay the suit claim being in possession of the estate of the deceased husband C.R.Dikshitulu and therefore her husband has committed suicide when the bank authorities tried to take action against him for the misappropriation committed by her husbank
C.R.Dikshitulu.
21.Both the parties field written arguments. The plaintiff filed written arguments which are nothing but the averments made in the plaint and on the other hand defendants filed written arguments alleging that the plaintiff has not filed a single scrap of paper to prove that the husband of Defendant No.1 has utilized the said money and acquired assets out of the said money. It was further 29 O.S.NO.39/06 argued that the plaintiff branch is a scale –IV branch and under the concurrent audit by a qualified Chartered Accountant. The allegations in the plaint that a fictitious transfer of Rs.45.00 lakhs was made on 3112002 from A/c. No.
0119207583/1 of one Sri Subash Mehta to the A/c.No.0119070072027 of defendant No.4 and another fictitious transfer of Rs.15,14,000/ was made on 4 122002 to the account of the defendant No.4 from the account of Sri Subash
Mehta and made a transfer of Rs.1,00,000/ on 30122002, Rs.3.00 lakhs on 32 2003, Rs.2.00 lakhs on 1422003, Rs.3,00 lakhs on 322003, Rs.2.00 lakhs on 1422003, Rs.2,000/ on 1962003 to the credit of A/c of defendant No.4 and made a fictitious transfer of Rs.40.00 lakhs on 2982001 from Inter Branch Items in transit (IBIT) to the credit of account of 5th defendant and made a fictitious credit transfer of Rs.14.00 lakhs on 5102001 into the saving bank account of 5th defendant through systems suspense account (an internal office account) of the branch, that two fictitious entries were made and a sum of rs.2.00 lakhs was transferred on 372003 and a further sum of Rs.2.00 lakhs was transferred on 1272003 and a further credit of Rs.2.00 lakhs was shown on 1972003 in the current of 5th defendant and the said debit balance in the current account was closed from the unauthorized cancellation of term deposits of A.P.Housing Board, that C.R.Dikshitulu opened S.B.Account in the name of 6th defendant and made fictitious entries amounting of Rs.6,00,000/ and the amounts were transferred to the S.B.Account of S.Ravi Kumar, that a current account was opened in the name of 7th defendant and made a fictitious credit entry on 3062003 for Rs.34,96135, that C.R.Dikshitulu opened a current account in the name of defendant No.8 and made a fictitious entry on 3062003 for Rs.1,49,892, a current account was opened in the name of defendant No.9 and her husband and made fictitious entries and defendant No.9 withdrew the money through cheques, that 30 O.S.NO.39/06
C.R.Dikshitulu sanctioned housing loan to defendant No.10, that the defendant
No.1 being the legal heir and representative of the estate of late C.R.Dikshitulu is liable and answer to the suit claim and all other allegations are invented with a malafide intention to obtained unlawful gain after the death of the husband of this defendant. It is submitted that as per the rules prescribed by the bank the self cheques/withdrawals of the late C.R.Dikshitulu from the joint S.B.A/c. of defendant No.2 and 3 cannot be passed by himself as he is heading the branch.
Similarly the credit entries to this account cannot be permitted by him. The second level officers in the branch are only competent to permit debit or credit from or to the S.B.A/c of late C.R.Dikshitulu and defendant No.2 and 3 maintained with plaintiff bank after satisfying the genuiness of the transactions.
The internal Auditors and Inspectors of the bank during their periodical inspection for every half year should verify the personal accounts of the bank staff to find out whether any misleading or fraudulent entries are make in the accounts of the staff. It is pertinent to note that the plaintiff bank has not placed any report to that effect. ‘Therefore the alleged storey setup by the plaintiff that the defendant No.1 to 3 are liable to pay Rs.16,41,93167/ is false, baseless and unsustainable. It is submitted that during the life time of C.R.Dikshitulu, the plaintiff bank had not issued any show cause notice or charge sheet in respect of the alleged fictitious entries dated 2982001 onwards, that the statutory auditors, internal inspectors, reserve bank of India Auditors, system Inspectors audited the branch for every half year ie., in October, 2001, April 2002, October 2002, April, 2003. It is pertinent to note that none of the auditors or Inspectors have pointed out the above alleged fictitious entries said to have made by
C.R.Dikshitulu and it is further submitted that plaintiff may be directed to produce the reports of Inspectors/Auditors from 2001 to 2004 to elicit the truth 31 O.S.NO.39/06 in the allegation made by the plaintiff and it is pertinent to note that the plaintiff
Bank started making of the allegations only after untimely death of Sri
C.R.Dikshitulu and it is very easy to make allegations against a dead person. It is further submitted that the plaintiff branch consisting of Cashiers, Clerks, Asst
Managers, Deputy Managers, Senior Managers and the duties and functions of the each staff are well defined being the Chief Manager C.R.Dikshitulu only administered and coordinated the smooth functioning of the branch. The credit and debit entries and vouchers are made by the concerned staff in the plaintiff branch, after satisfying the genuiness of the transaction. It is pertinent to note that each and every credit entry and debit entry running into lakhs requires joint authorization from the officers who are looking after the concerned seat. The books of the branch with regard to the S.B.Account, Current Account, Inward clearing and outward clearing and other GLB heads (General Ledger Balance) are required to be balance as per the accounting norms of the bank for every half year. The accounting books are balanced by the staff of the concerned departments and the Chief Manager is nothing to do with regard to making of entries or balancing of the books and it is exclusive domine of the heads of the concerned departments in the branch. Therefore it is highly impossible and improbable to say that Sri C.R.Dikshitulu has made all fictitious transfers with a malafied intention to obtained unlawful gain. It was further submitted that the plaintiff has not filed a single scrap to prove that the husband of the defendant has utilized the said money and acquired any assets out of the said money and on perusal of the statement of account of defendant No.4, it is observed credit entries were made on 3132003 for 70,00,000/, on 3132003 for
Rs.11,00,000/, on 2542003 for Rs.70,00,000/, on 2842003 for
Rs.1,00,000/, on 3062003 for Rs.73,27,308/ on 3062003 for Rs.9,21,058/, 32 O.S.NO.39/06 on 3172003 for Rs.23,179,86/, on 3172003 for Rs.83,25,186 in the account
No.0159070072027 of the defendant No.4 and there is no whisper about these entries in the plaint and the plaintiff for the reasons mentioned best known to them suppressed or omitted to furnish full details of the transactions of all the entries referred in the statement of accounts relied by the plaintiff.
22. The plaintiff relied on the decisions reported in (1) AIR 1971 Supreme
court, 1865 in Sait Tarajee Khimchand and others v. Yelamarti Satyam and
others. (2) AIR 1972 Supreme Court 330 in M/s.Bareilly Electricity Supply Co.
Ltd. V. The Workmen and others. (3) AIR 1999 Supreme Court 1381 in United
Bank of India v. Debts Recovery Tribunal and others (4) AIR 136 1964 SCR
(2) 933 in Addagada Raghavamma and another vs. Addagada Chenchamma
and another. Therefore it has been argued that the suit is not maintainable.
23.On perusal of the evidence on record it is found that the plaintiff has to prove the allegations made against the deceased Chief Manager C.R.Dikshitulu against whom the allegations of fraud and misappropriation has been made. It has been clearly stated that the while opening account number of official are been engaged and involved in the bank apart from the Chief Manager and the plaintiff has failed to examine in whose presence and relevant time the alleged incident occurred. It is true that the evidence of PW1 is only hearse evidence. There is no document even to prove that the late C.R.Dikshitulu is acquired property either in his name or his family members out of the alleged fraud. It is further submitted that the original documents of Exs.A1 to A44 were ceased by CBI court and Xerox true copies certified by bank office are marked without following the procedure as contemplated under section 65 of the Evidence Act. Document Exs.A1 to A44 has 33 O.S.NO.39/06 not been proved through any official who worked in the branch during the relevant period.
24.The defendant counsel relied on the decisions reported in AIR 1971 SC 1865 and AIR 1972 SC 330 where in it was held that mere marking of documents would not amount to proving the document. Thus has argued by the plaintiff counsel that the plaintiff has not produced primary evidence under section 62 of the Indian Evidence Act or followed the procedure as contemplated under section 65 of the Indian Evidence Act. Thus the plaintiff has miserably failed to prove the contents of Exs.A1 to A44 by not examined the person who have personal knowledge and the learned counsel argued that in A.Raghavamma
and another v. A.Chenchamma and another the Honble Supreme Court (AIR
1964 SC 136), while making a distinction between burden of proof and onus of proof, the Hon’ble threeJudge Bench opined thus: “There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.”
25.As admitted by the plaintiff the deceased Chief Manager was purchased the flats out of housing loan. The first housing loan was closed out of salary and 2nd housing loan was also closed out of salary and part of death benefits and
O.S.NMo.141/2101 on the file of the III Senior Civil Judge, Secunderabad by 34 O.S.NO.39/06 plaintiff’s AIR Force Branch, Dindigal in respect of 2nd housing loan was dismissed by the III Senior Civil Judge vide judgment and decree dated 31122012 on merits.
26.As discussed above the two claimed properties are purchased by
C.R.Dikshitulu by taking housing loan any relief against defendant No.1. There is no proof to show on record that late C.R.Dikshitulu was purchased in his name and in the name of his family members at the relevant time of opening accounts.
Similarly, the plaintiff bank neither titled any record of proof of the delivery of funds of the bank to the fictitious accounts as alleged against the defendants 5 to
10. The plaintiffs bank has failed to examine the staff and the personnel who dealt with the above transactions. According issue No.2 and 3 are answered against the plaintiff.
27. Issue No.4 & 5: Whether the defendants No.1 to 3 and 6 are liable to pay the amounts, as claimed by the plaintiff? And whether the plaint schedule properties are liable to be sold for realisation of the suit claim?
In view of the above finding, I am of the opinion that, the plaintiff have miserably failed to prove the assets of the defendants which have been allegedly purchased through the fraudulent fund by the deceased as Chief Manager from the plaintiff bank. Thus I am of the opinion that the plaintiff bank have miserably failed to prove the suit claim and therefore the suit is dismissed with costs against
Defendant No.1 to 10.
35 O.S.NO.39/06
28. Issue No.6. To what relief?
In the result, the suit is dismissed with costs against defendants 1 to 10.
Type to dictation to the stenographer, corrected and pronounced by me in the open court on this the 21st day of February, 2017.
Sd/ XII Additional Chief Judge, City Civil court, Secunderabad.
APPENDIX OF EVIDENCE
WITNESS EXAMINED
For Plaintiff: For Defendants: PW1: C.Ravi SankarDW1: C.Rama Devi
DOCUMENTS MARKED
For Plaintiff: Ex.A1 is the true copy of account opening form . Ex.A2 is the true extract of statement of S.B.a/c 01190006144. Ex.A3 is the true extract of statement of recurring a/c 01294006144. Ex.A4 is the copy of account opening form of S.B.a/c.01190007202. Ex.A5 is the true extract of statement of S.B. a/c No. 01190007202. Ex.A6 is the true extract of demand loan a/c.No.01590007202. Ex.A7 is the true extract of statement of SB a/c.No. 01190007186. Ex.A8 is the true copy of cheque No.349631 transferring the money of the account of 4th defendant; Ex.A9 is the true copy of the cheques drawn by the 4th defendant and copy of deposit voucher (vouchers 89 Nos) which is bookII. Ex.A10 is the officer copy of the notice of demand dated 16122003. Ex.A11 is the true copy of reply of the 4th defendant dated 1412004. Ex.A12 is the true copy of account opening form of S.B. a/c 01190006167. Ex.A13 is the true copy of pay in slip for Rs.40,00,000/. Ex.A14 is the true copies of cheques drawn by the 5th defendant from the SB account (10Nos) Ex.A15 is the true copy of the biodate furnished by the 5th defendant at the time of giving guarantee to the housing loan of his wife. Ex.A16 is the true extract of statement of S.B.a/c 01190006167. Ex.A17 is the office copy of the notice of demand dated 22122003. Ex.A18 is the true reply copy of the reply of the 5th defendant dated 2732004. Ex.A19 is the true copy of the reply of the plaintiff dated 2562004. Ex.A20 is the true copy of account opening form of S.B. a/c 01190006672. Ex.A21 is the true extract of statement of S.B a/c. 01190006672. Ex.A22 is the true extract of statement of current a/c 01090006672. Ex.A23 is the true copy of the letter of the 6th defendant dated 14112003. Ex.A24 is the office copy of the notice of demand dated 992004. Ex.A25 is the true copy of reply of the 6th defendant dated 2892004.
36 O.S.NO.39/06
Ex.A26 is the true copy of reply of the plaintiff dated 26122004. Ex.A27 is the true copy of the legal notice from the 6th defendant
dated 2422005.
Ex.A28 is the true copy of the reply to the legal notice dated 1632005. Ex.A29 is the copy of account opening form of current a/c.01090006819. Ex.A30 is the true extract of statement of current a/c.01090006819. Ex.A31 is the office copy of the notice of demand dated 09092004. Ex.A32 is the true copy of account opening form of current a/c 01090005472. Ex.A33 is the true copy of account opening form of SB a/c.01190005472. Ex.A34 is the true extract of statement of current a/c 01090005472. Ex.A35 is the True extract of statement of SB a/c.01190005472. Ex.A36 is the true extract of statement of personal loan a/c.01593005472. Ex.A37 is the true copy of office copy of the notice of demand dated 26122004. Ex.A38 is the true copy of account opening form of current a/c 01090007355. Ex.A39 is the true copy of application for issue of banker cheque for Rs.1,50,000/ dated 742003. Ex.A40 is the true copies of the cheques drawn by the 9th defendant (13nos). Ex.A41 is the true extract of statement of current a/c 01090007355. Ex.A42 is the true extract of statement of loan a/c 01593005155/00. Ex.A43 is the true copy of the office copy of the notice of demand
dated 1692004.
Ex.A44 is the true copy of the office copy of the legal notice dated 222006.
For Defendants: Nil Sd/ XII Additional Chief Judge, City Civil court, Secunderabad.
37 O.S.NO.39/06