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GOKULDAS KAMATH (EX BANKER)     12 July 2023

Use of information and documents obtained under rti act as evidences in a criminal case

I am an ex-employee of a nationalised bank with 31 years of meritorious service record. Unfortunately Bank management has implicated me in a case involving Rs.15.42 lakhs  treated as diversion of funds over a period of 3 years from 2004 to 2007 when I was working as Accountant in a large-scale branch and dismissed me from the services of the bank in May 2009 after namesake departmental inquiry in 2008.  Bank has denied me numerous documentary evidences sought by me in my defence. The amount of Rs.15.42 lakhs  was actually reported as suspected transactions (not as fraud) by Bank’s Auditors with a suggestion to refer this case to bank’s vigilance department for further investigation. Instead of verifying the authenticity of Audit report, instead of referring this case to Bank’s vigilance department, bank management has treated it as fraud. While the audit report says that User ID and passwords of 12 employees are used to carry out 98 transactions aggregating Rs.15.42 lakhs over a period of 3 years, a criminal complaint was lodged only against me as Accused No.2 and the then Chief Manager as Accused No.1 on 10.06.2008 stating that both of us have misappropriated Rs.1542161.26 for our personal use and police have filed charge sheet before  local JMFC court in Nov.2011. Actually, this is a case of procedural lapses but treated as fraud. Bank has recovered substantial amount  from various customers and bank employees and there is no loss to the bank. But bank has not informed the police and court about these recoveries. In 2013 I had filed my review petition before Bank’s Chairman and managing Director to reduce the punishment. In response to this, Bank’s Head Office had sought the details of quantification of loss to the bank in this case from bank’s Regional Office to consider my review petition. In reply, Regional Office wrote to Head Office on 28.02.2013 that Rs.7.42 lakhs are recovered from various customers and bank employees, 14 transactions aggregating Rs.5.80 lakhs are procedural lapses and actual loss to the bank is Rs.2.20 lakhs in this case.  My review petition was rejected by bank’s CMD. Secondly any fraud /misappropriation done by bank employee is fully covered under Insurance policy, but bank has not claimed the amount involved in this case from Insurance company. In reply to my RTI query, bank has informed me that Bank cannot claim the amount from Insurance company as the loss resulting wholly or partially from any negligent act of the Insured’s employee, are not covered.  So bank is not treating this as fraud when the matter of claiming the  amount from Insurance company arises.From 2013 till date bank has provided me various information and documents related to this case under RTI Act 2005 including details of recoveries in this case.  With all these documents, I can prove my innocence in this case. The police complaint, Written statement of Complainant Branch manager and Charge sheet does not mention anything about the recoveries in this case. The only documentary evidences in my possession are information and copies of documents obtained under RTI Act. Presently the deposition of Complainant (CW1) before JMFC court is under progress and Cross examination by me and Accused No.1 may take place shortly .In this connection, I request the respected Lawyers community to guide me on following points

  1. Whether Audit report submitted by Bank’s Internal Auditors is an  authentic proof of fraud or it is subject to scrutiny by bank officials
  2. Whether any information provided by bank under RTI Act 2005 is admissible as evidences in this case. For example bank's information on reason for not claiming the amount from insurance company
  3. Whether copies of documents obtained under RTI Act 2005 are admissible as evidences in this case like details of recoveries made by the bank
  4. Whether both information and copies of documents can be used as defence documents if not acceptable as evidences
  5. Whether cross examination can be done using these information and documents
  6. Whether the evidence of Complainant Branch manager who is not a witness to the crime is valid in this case.While the transactions took place from 2004 to 2007, the complainant branch manager reported to the branch on 29.01.2008
  7. Police Complaint was lodged 7 months after special audit report, whether I can challenge this delayed complaint

Kindly help me

 



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 1 Replies

Isaac Gabriel (Advocate)     16 July 2023

Mere vigilance report cannot be a proof for misapprotion.In this case no cash transaction could be cited as wilfully done to establish fraudulent activity.Insurance could not be claimed is not a reason or a proof for misappropriation. Since the alleged transactions have been done by adjustment to different account, the.charge is false one and you can contest the case with all the proof at your command.


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