Patna High Court
State Of Bihar vs Arun Kumar Sharma @ Shankar on 23 November, 2011
Author: Dharnidhar Jha
Bench: Dharnidhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
GOVT. APPEAL (SJ) NO.21 OF 1999
Against the judgment of acquittal dated
18.05.1999passed by Sri Ravindra Patwari, Judicial Magistrate, Ist Class, Patna in G.R.Case No.2308 of 1983, Trial No.0024 of 1999.
State Of Bihar.... .... Appellant
Versus
ARUN KUMAR SHARMA @ SHANKAR SHARMA @ KISHORE SINGH, Son of not known, resident of village, Dharampur Jalkuali, P.S.Vaishali, District-
Vaishali ..... Respondent
For the State: Sri Ajay Mishra, A.P.P.
For the Respondent: Sri Kanhaiya Prasad Singh,
Senior Advocate
Sri Binodanand Mishra,
Advocate
P R E S E N T
THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. This Govt. Appeal is directed against the judgment of acquittal passed by learned Judicial Magistrate, Ist Class, Patna in G.R.Case No.2308 of 1983, Trial No.24 of 1999 dated 18.05.1999 by which the appellant was acquitted of the charges under Sections 420, 468, 471 and 120B of the IPC.
2. The short facts leading to the impugned judgment may be noticed. Treasury Officer, Patna who was the informant of the case and who was not examined, received a P.P.O.no.SC/27498/80 in favour of Shri Kishore Singh, Son of Dasrath Singh, resident of village-Paharpur, P.S.-Bihta, District-Patna by which 2 the above Kishore Singh was authorized to draw the amount of pension, gratuity, commutation of pension and relief to the tune of Rs.24,035/- only. He also received a descriptive roll and accordingly, the beneficiary Kishore Singh presented himself before the treasury officer with his three recent photographs which was duly attested by the Secretary, Zila Sainik Board as required as per practice and also presented a bill for withdrawal of the commutation amount of pension, gratuity and reliefs which was Rs.24,035/- only and accordingly the payment was made by the Reserve Bank of India, Patna.
3. Subsequently, the informant received a letter on 24.11.1981 informing him by the C.D.A., Allahabad that the payment of the above amount of Rs.24,035/- was fraudulent and it has been withdrawn by an imposter and the pension order was fake and as such the treasury officer was directed to lodge a report. In spite of the letter directing the lodging of the report was received by the informant, Treasury Officer, Patna on 24.11.1981, it took him over two and half years to file his written report Ext-3 on the basis of which the case was registered and after investigation the appellant was put on trial which ultimately ended in his acquittal.
4. The contention of the learned A.P.P. was that there might be some findings adverse to the 3 prosecution on account of non-examination of the informant as also the investigating officer besides the non-production of sufficient evidence indicating that it was this appellant who had indeed received the payment and signed the receipt in that behalf but still there was merit in the appeal.
5. I have gone through the impugned judgment and considered the findings in the light of the evidence which are available with the lower court records. The learned trial Judge has referred to the evidence of each individual witness and has discussed the material evidence of witnesses collectively in one part of the judgment or the other. Some witnesses, like, P.Ws.2 to 7 appear giving evidence on procedure and some who were officials or employees of the C.D.A., Allahabad were testifying to the P.P.O. which was received by the Patna Treasury Officer for making payment being fake and fabricated. The evidence indicates that one Kishore Singh in whose name the fake P.P.O. was issued or was standing, had appeared before the informant to produce three attested photographs as were required to be produced under rules and accordingly the bills were accepted and payment was made, but the treasury officer was not examined so as to saying that it was this appellant, namely, Arun Kumar Sharma @ Shankar Sharma @ Kishore Singh who had indeed produced the photographs or 4 that the photographs which were produced were really of the present appellant and further that the receipt which was bearing the signature of the recipient of the amount of Rs.24,035/- only was scrutinized and was fully tallying with the specimen signature which was obtained from this appellant. The learned trial Judge has dealt with that frailty very much in the prosecution case on account of the non-examination of the expert who had tallied the disputed signatures and has further drawn an adverse inference on account of the non-production of the evidence of the expert or any one who could have deposed on the signatures appearing at the receipt as also that which was admitted to be that of the present appellant were tallying with each other so as to concretely proving that it was this appellant who could have received the amount. The learned Magistrate has drawn an adverse inference on two counts and on account of the non-production of the investigating officer who had admittedly seized some of the relevant documents.
6. The appellant has a very clear cut defence that he was not the man in whose name the P.P.O. was standing and further that he was not the man whose photographs were produced before the treasury officer. The learned Magistrate also does not appear recording a finding that the photographs which were produced duly attested by the Secretary, Zila Sainik Board, Patna were 5 indeed of the present appellant. In that view, it remains quite in the realm of suspicion that it could be the present appellant who could be fully and properly connected with the commission of one important part of the offence, i.e., the withdrawal of the money and receipt of the same. The learned Magistrate has drawn another adverse inference on account of the delayed lodging of the written report. He has noted that there was no explanation but what I visualize from the conduct of the informant by not appearing in the trial court, further is that probably the suggestion which was given to one of the witnesses or some of the witnesses that the appellant had nothing to do with the forgery of the pension order as also he had received any part of the payment and in fact the treasury employees and the officer who had fraudulently withdrawn the amount so as to distributing the same between themselves appears the reason to this Court for sitting tight over the request of the C.D.A., Allahabad for lodging the report. That could be the probable reason that the informant was not appearing.
7. After having gone through the judgment and evidence available on record, this Court finds that the view which was taken by the learned Magistrate was also an appropriate view. Under the facts of the case there was no perversity which could be pointed out in the 6 judgment rendered by the learned Magistrate as a result of which the present Govt. Appeal appears meritless and the same is dismissed.
( Dharnidhar Jha,J.) Patna High Court, Dated, the 23rd day of November, 2011, Brajesh Kumar, NAFR.