Himachal Pradesh High Court
Reserved On: 25.4.2024 vs Balak Ram on 12 June, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:3336-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 353 of 2012 Reserved on: 25.4.2024 .
Date of Decision: 12.06.2024
State of H.P. ...Appellant.
Versus
Balak Ram ...Respondent.
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellant/State: Mr. Vishwadeep Sharma, Additional Advocate General.
For the Respondent : Mr. N.K. Thakur, Senior Advocate with Mr. Karan Veer Singh, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 22.12.2011, passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, vide which, the appeal filed by the respondent (accused before the learned Trial Court) was allowed and he was acquitted of the commission of offences punishable under Sections 409, 467 and 471 of the Indian Penal Code (in short 'IPC') by giving him benefit of doubt. (Parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 13/06/2024 20:30:35 :::CIS 2hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present .
appeal are that the residents of Dola Khariana made a complaint (Ex.PW1/B) stating that they had deposited an amount of ₹2.00 lacs in Branch Post Office Dola Khariana. Accused Balak Ram was posted as Branch Post Master for the last 12 years. The residents used to deposit the amount through accused Balak Ram. The accused did not supply any passbook to the depositors. The accused used to put off the residents on one pretext or the other whenever a demand for the passbook was made. One of the residents, namely, Budhi Singh had deposited ₹13,000/- and when he wanted to withdraw the amount, the money was not paid to him. He made a complaint against Balak Ram on which Balak Ram paid the money to him. The residents came to know of this fact and started asking for their passbooks. The matter reached the higher officials of the Post Office and an inquiry was made on 22.9.1993; however, the inquiry officers were not permitted to contact the depositors. The accused had not reflected the amount in the record. He used to maintain a temporary register and pay the money to the depositors after ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 3 obtaining their signatures. The accused subsequently absconded.
Hence, the depositors made a complaint to the Deputy Commissioner Kangra at Dharamshala and other officials. FIR .
(Ex. PX) was registered in the Police Station. Braham Dass (PW17) conducted the investigation. He recorded the statements of witnesses as per their version and seized the record from the branch office vide memo (Ex.PW10/A). He filed an application to obtain the specimen signatures of the accused. Mr. K.P. Singh (PW14) Sub Divisional Judicial Magistrate, Dehra obtained the specimen signatures which were sent to Government Examiner of Questioned Documents (GEQD), Shimla for comparison with the disputed signatures. Report (Mark-P) was issued by GEQD stating that the disputed, specimen and admitted signatures were put by one person. After the completion of the investigation, the challan was prepared and presented before the Court.
3. The learned Trial Court charged the accused with the commission of offences punishable under Sections 467, 471 and 409 of IPC. The accused pleaded not guilty and claimed to be tried.
::: Downloaded on - 13/06/2024 20:30:35 :::CIS 44. The prosecution examined 17 witnesses to prove its case. Jagpal Singh (PW1), Phil Devi (PW2), Gulab Singh (PW3), Simro Devi (PW4), Kesari Devi (PW5), Julfi Ram (PW7), Punnu .
Ram (PW8), Rasilu Ram (PW9) and Saran Dass (PW12) are the depositors. Roshan Lal (PW6) was posted as Secretary in the Gram Panchayat who produced the certificate before the police.
Ranjeet Singh (PW10) was posted in the Postal Department and produced the record. Lekh Ram (PW13) is the witness to the recovery. Mr. K.P. Singh (PW14) was posted as Sub Divisional Judicial Magistrate, Dehra in whose presence the specimen signatures of the accused were obtained. Bir Chand (PW15) is the witness of recovery. Madan Lal (PW16) conducted the inquiry and issued the report. ASI Braham Dass (PW17) conducted the investigation.
5. The accused in his statement recorded under Section 313 Cr.PC denied the prosecution case in its entirety. He stated that the witnesses were Government officials. He was falsely implicated in the present case. No defence was sought to be adduced by the accused.
6. The learned Trial Court held that the witnesses testified about the deposit of money with the accused. S.B. ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 5 Journal (Ex.PW10/C), R.D. Journal (Ex.PW10/B) and registers (Ex.R1 and Ex.R2) do not contain any entry regarding the deposit of the amount. As per the report of the Government Examiner of .
the Questioned Document (GEQD), the specimen, admitted and disputed signatures were put by one person which corroborates the version of witnesses regarding the deposit of the amount.
The withdrawal form shows that the thumb impression was attested by the accused and they bear the signatures of the accused. The money was not paid to the depositors. The accused being entrusted with the money had misappropriated the same.
He had prepared the forged documents for misappropriation.
Hence, the accused was convicted for the commission of offences punishable under Sections 409, 467 and 471 of IPC and was sentenced as under:-
"The convict is sentenced to undergo two years rigorous imprisonment with fine of ₹ 1,000/- for an offence under Section 409 of IPC, two years rigorous imprisonment with fine of ₹1,000/- for offence under Section 467 of IPC and two years rigorous imprisonment with fine of ₹1,000/- for offence under Section 471 of IPC. Sentence of imprisonment shall run concurrently. In default of payment of fine, the accused shall further undergo simple imprisonment for 6 months."::: Downloaded on - 13/06/2024 20:30:35 :::CIS 6
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused had filed an appeal which was decided by learned Additional Sessions Judge-I, Kangra at .
Dharamshala (the Appellate Court). The Appellate Court held that the appointment and posting orders of the accused were not brought on record which were necessary in view of the statements of Jagpal Singh (PW1) and Saran Dass (PW12) that some other person was posted as Post Master. The prosecution case is not covered by the definition of forgery or making false documents as it was not shown that the accused had tampered with the record of the withdrawal or had altered the figures. The prosecution case regarding the withdrawal of the money could not be established without the documents merely on oral evidence. The thumb impressions put on the withdrawal registers were not sent to the Finger Print Expert to determine their authenticity. Learned Sub Divisional Judicial Magistrate, Dehra did not have the jurisdiction to direct the accused to give specimen signatures and such signatures are inadmissible in evidence. These could not have been used for comparison. The government examiner of the Questioned Document did not step into the witness box to prove the report and the learned trial ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 7 court erred in relying upon the report. The police failed to conduct proper investigation and seizure of the record was not sufficient to establish the guilt of the accused. Hence, the appeal .
was allowed and the accused was acquitted of the charges framed against him.
8. Being aggrieved from the judgment passed by the learned Appellate Court, the State has filed the present appeal asserting that the judgment of the learned Appellate Court is against the facts and the law. Learned Appellate Court had technically construed the law and left no room for reasonable elasticity for the interpretation of the law. The depositors had categorically stated about handing over the money to the accused. The accused had failed to deposit the amount in their accounts and make the entries in the passbooks. Phil Devi (PW2) specifically mentioned the accused as the person to whom the money was handed over. She categorically stated that she had not withdrawn any amount from her recurring deposit. It was duly proved that the amount was withdrawn by the accused. The signatures of the accused on disputed documents were proved by the report of GEQD. Learned Appellate Court failed to consider the report in its proper perspective. The accused did not deny in ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 8 his statement recorded under Section 313 Cr.PC that he was posted as a Postmaster. There was sufficient material on record to establish the guilt of the accused and the learned Appellate .
Court erred in acquitting the accused. Therefore, it was prayed that the present appeal be allowed, the judgment and order passed by the learned Appellate Court be set aside and the judgment passed by learned Judicial Magistrate First Class, Dehra be restored.
9. We have heard Mr. Vishwadeep Sharma, learned Additional Advocate General for the appellant/State and Mr. N.K. Thakur, learned Senior Advocate with Mr. Karan Veer Singh, Advocate, for the respondent/accused.
10. Mr. Vishwadeep Sharma, learned Additional Advocate General for the appellant/State submitted that the learned Appellate Court erred in acquitting the accused. It was duly proved by the testimonies of the witnesses that they had deposited the money with the accused but the accused failed to deposit the money in their accounts. The accused had made wrong entries in the record. This fact was duly proved by the report of the Government Examiner of the Questioned Document and the learned Appellate Court erred in ignoring the same.
::: Downloaded on - 13/06/2024 20:30:35 :::CIS 9Hence, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside.
11. Mr. N.K. Thakur, learned Senior Advocate supported .
the judgment of the learned Appellate Court and submitted that no interference is required with the same.
12. We have given considerable thought to the submissions and have gone through the records carefully.
13. The present appeal has been filed against an order of acquittal. It was laid down by the Hon'ble Supreme Court in Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 SCC OnLine SC 561, that the Court can interfere with an order of acquittal if the judgments suffer from patent perversity or there is some misreading of evidence or omission to consider the material on record. It was observed:
36. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial Court.
37. This Court in the case of Rajesh Prasad v. State of Bihar1 encapsulated the legal position covering the field after considering various earlier judgments and held as below:--
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 10 dealing with an appeal against an order of acquittal in the following words : (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415] .
"42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court r on the evidence before it may reach its conclusion, both on questions of fact and law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 11 law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
38. Further, in the case of H.D. Sundara v. State of Karnataka 2023 (9) SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:--
"8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:--
::: Downloaded on - 13/06/2024 20:30:35 :::CIS 12(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
.
(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
14. The present appeal has to be decided on the parameters laid down by the Hon'ble Supreme Court.
15. The prosecution is relying upon the specimen signatures taken by Mr. K.P. Singh (PW14) on 6.4.1994. He admitted in his cross-examination that no case was pending against the accused before his Court at the time of obtaining the specimen signatures of the accused. It was laid down by the Hon'ble Supreme Court in Sukhwinder Singh vs. State of Punjab 1994 (5) SCC 152 that a Magistrate had no authority to direct the accused to give his specimen signatures when no inquiry or trial was pending before him. It was observed:
"[21] The specimen writings in the instant case of appellant Sukhdev Paul were taken under the directions of Shri S. P. Garg, Tehsildar-Executive Magistrate, Public Witness 13. No enquiry or trial was admittedly pending in the court of the Tehsildar-Executive Magistrate. The enquiry and trial, in this case, were pending under TADA ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 13 before the Designated court only. The direction given by the Tehsildar-Executive Magistrate Shri S. P. Garg to the appellant Sukhdev Paul to give his specimen writing was clearly unwarranted and not contemplated or envisaged by Section 73 of the Evidence Act. The prosecution has not .
disclosed as to at what stage of investigation or enquiry or trial was Sukhdev Paul appellant produced before the Executive Magistrate Public Witness 13 to take the specimen writings of the appellant and why the specimen writings were obtained under directions of Public Witness 13 and not of the Designated court. It is a mystery as to how the specimen writings required to be used at the trial against the appellant were directed to be taken by Public Witness 13, who was not enquiring or trying the case. To a specific question during his cross-examination, Public Witness 13 admitted at the trial, that when he had issued the direction to the appellant there was no document on his file which could go to show as to under whose orders the appellant had been sent to him for taking his specimen handwriting. The manner in which the specimen writing of Sukhdev Paul was taken is totally objectionable and against the provisions of Section 73 of the Evidence Act. The Executive Magistrate Public Witness 13 appears to have been too obliging and did not even care to examine the provisions of the law before issuing the direction to the appellant. The argument of the learned counsel for the State that since no objection was raised by the appellant when he was called upon to give his specimen writing by Public Witness 13, therefore, he cannot be permitted to make a grievance now is only an argument of despair and the silence of the appellant, who admittedly on that day, was not even represented by an advocate, cannot certainly clothe Public Witness 13 with any jurisdiction to issue the directions as envisaged by Section 73 of the Evidence Act. The specimen writing of Sukhdev Paul could not, therefore, be made use of during the trial and the report of the handwriting expert, when considered in the light of the foregoing discussion, is rendered of no consequence at all and cannot be used against Sukhdev Paul appellant to connect him with the crime."::: Downloaded on - 13/06/2024 20:30:35 :::CIS 14
16. This position was reiterated in State of Haryana Vs. Jagveer Singh (2003) 11 SCC 261 and Rakesh Kumar vs. State 2001 (3) S.L.C 154.
.
17. Similar is the judgment of the Hon'ble Supreme Court in Sukh Ram vs. State of H.P. (2016) 14 SCC 183 wherein it was observed:-
"14. Trial court discarded the opinion evidence of PW-20 on the ground that the executive magistrate was not the competent authority before whom the fingerprint and handwriting of the witnesses could be taken as no proceeding was pending before the executive magistrate. In this regard, the trial court placed reliance upon Sukhvinder Singh's case and held that the opinion evidence of a handwriting expert cannot be used against the accused.
15. In Sukhvinder Singh's case, it was held that the direction given by the Tehsildar-Executive Magistrate to the accused to give his specimen writing was clearly unwarranted and, therefore, the said specimen writing could not be made use of during the trial and the report of handwriting expert was rendered of no consequence at all and could not be used against the accused to connect him with the crime. It was held that the direction to an accused to give specimen handwriting can only be issued by the court holding enquiry under the Criminal Procedure Code or the Court conducting the trial of such accused.
16. High Court differentiated Sukhvider Singh's case from the case at hand on facts as also on the law. High Court pointed out that in the matter at hand, admittedly, the authority-Executive Magistrate before whom the specimen signatures were given did not have the authority to inquire into or try the case. However, as observed by the High Court, during the course of the investigation, PW-5 ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 15 and PW-7 gave the specimen signatures willingly. In Sukhvinder Singh's case, specimen writing of the accused was taken as per the direction of the tehsildar; whereas in the present case, PW-5 and PW-7 were produced before the Executive Magistrate by the police with a request that .
their signatures be taken by the Executive Magistrate.
Sukhvinder Singh's case is clearly distinguishable on facts from the case at hand. High Court further relied on another decision rendered in Vijay alias Gyan Chand Jain's case wherein in the facts and circumstances of the said case, it was held that procurement of specimen handwriting of the accused by Naib Tehsildar was not in violation of Section 73 of Evidence Act.
17. The question is whether the Judicial Magistrate/ Executive Magistrate was authorized to take specimen writing and signatures of the said accused during the investigation of the case when no matter was pending before either of them. Section 311-A of Cr.P.C. has been introduced by Act No.25 of 2005 with effect from 23.06.2006 with respect to the powers of the Magistrate to order the person to give specimen signatures or handwriting, but no such powers were there prior to the year 2006. Section 311-A Cr.P.C. has been inserted on the suggestions of the Supreme Court in State of Uttar Pradesh v. Ram Babu Misra, (1980) 2 SCC 343: AIR 1980 SC 791, that suitable legislation be brought along the lines of Section 5 of Identification of Prisoners Act, 1980, to provide for the investiture of Magistrates with powers to issue directions to any person including an accused person to give specimen signatures and handwriting but no such powers existed prior to such amendment. The said amendment is prospective in nature and not retrospective.
18. In State of Uttar Pradesh v. Ram Babu Misra, (1980) 2 SCC 343: AIR 1980 SC 791, the Supreme Court dealing with the scope and ambit of Section 73 of the Evidence Act held as under:
"The second paragraph of Section 73 enables the Court to give specimen writings 'for the purpose of enabling the Court to compare' such writings with ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 16 writings alleged to have been written by such person. The clear implication of the words 'for the purpose of enabling the Court to compare' is that there is some proceeding before the Court in which or as a consequence of which it might be necessary .
for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for the anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further, Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should not make any difference if the investigating agency seeks the assistance of the court under Section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?"
19. After referring to Section 5 of the Identification of Prisoners Act, 1980 in Ram Babu Misra's case, this Court suggested that suitable legislation be made along its lines to provide for the investiture of Magistrates with powers to issue directions to any person including an accused person to give specimen signatures and handwriting. Accordingly, a new Section 311-A was inserted in the Criminal Procedure Code. Section 311-A Cr.P.C. reads as under:-
::: Downloaded on - 13/06/2024 20:30:35 :::CIS 17"Section 311A. Power of Magistrate to order person to give specimen signatures or handwriting.-If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, .
including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case, the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting:
Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."
The said amendment is prospective in nature and not retrospective."
18. It was laid down by this Court in State of H.P. Vs. Laje Ram & Ors. 2011 Crl. L.J. 3071 that signatures taken before 23.6.2006 by a Magistrate when no inquiry or trial was pending before him would be inadmissible. It was observed:-
"12. The perusal of the records shows that the Investigating Officer had made the request to the Magistrates aforesaid for obtaining the specimen writing and signatures of the accused persons for comparison and the learned Magistrates proceeded to record their writings and signatures.
13. Thus the dispute is whether the Judicial Magistrate/Executive Magistrate was authorized to take specimen writing and signatures of the said accused during the investigation of the case when no matter was pending before either of them. Although Section 311-A of the Code of Criminal Procedure has been introduced by Act No. 25 of 2005 with effect from 23.6.2006 with respect to the powers of the Magistrate to order the person to give ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 18 specimen signatures or handwriting, no such powers were there prior to the year 2006. The said Section has been inserted on the suggestions of the Supreme Court made on its decision (AIR 1980 SC 791) that a suitable legislation be brought on the analogy of Section 5 of the Identification of .
Prisoners Act, 1980, to provide for the investiture of Magistrates with powers to issue directions to any person including an accused person to give specimen signatures and handwriting, but no such powers existed prior to such amendment. Undisputedly, the said amendment is prospective in nature and not retrospective.
14. In State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791, the Supreme Court dealing with the scope and ambit of Section 73 of the Evidence Act held as under:
"The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings 'for the purpose of enabling the Court to compare' such writings with writings alleged to have been written by such person. The clear implication of the words 'for the purpose of enabling the Court to compare' is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for the anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further, Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 19 other person to give sample writing under section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not?
.
Obviously not. If not, why should not make any difference if the investigating agency seeks the assistance of the court under section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?"
15. The Hon'ble Supreme Court also referred to Section 5 of the Identification of Prisoners Act, 1920, which provides:--
"If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, (5 of 1898), it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class:
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding".
It was held:
"There are two things to be noticed here. First, signatures and writing are excluded from the range of Section 5 of the Identification of Prisoners Act and, second 'finger impressions' are included in both Section 73 of the Evidence Act and Section 5 of the Identification of Prisoners Act. A possible view is ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 20 that it was thought that Section 73 of the Evidence Act would not take in the stage of investigation and so Section 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were .
deliberately excluded. As we said, this is a possible view but not one on which we desire to rest our conclusions. Our conclusion rests on the language of Section 73 of the Evidence Act."
16. As stated above, the Hon'ble Court also made a suggestion that suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act, 1920, to provide for the investiture of Magistrates with the powers to issue directions to any person including an accused person to give specimen signatures and writings.
17. The above ratio was reiterated by the Hon'ble Supreme Court in Sukhvinder Singh and others v. the State of Punjab, JT 1994 (4) SC 1. It was held:
"The second paragraph of Section 73 (supra) enables the court to direct any person present before it to give his specimen writing 'for the purpose of enabling the court to compare' such writings with writings alleged to have been written by such person. The obvious implication of the words 'for the purpose of enabling the court to compare' is that there is some proceeding pending before the court in which or as a consequence of which it is necessary for the court to compare such writings. The direction is, therefore, required to be given for the purpose of 'enabling the court to compare' and not for the purpose of enabling an investigating or a prosecuting agency to obtain and produce as evidence in the case the specimen writings for their ultimate comparison with the disputed writings. Where the case is still under investigation and no proceedings are pending in any court in which it might be necessary to compare the two writings, the person (accused) cannot be compelled to give his specimen writings. The language of Section 73 does ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 21 not permit any court to give a direction to an accused to give his specimen writing for comparison in a proceeding which may subsequently be instituted in some other competent court. Section 73 of the Evidence Act in our opinion cannot be made .
use of for collecting specimen writings during the investigation and recourse to it can be had only when the enquiry or the trial court before which proceedings are pending requires the writing for the purpose of 'enabling it to compare' the same. A court holding an enquiry under the Code of Criminal Procedure is indeed entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the court by which he may be subsequently tried to compare it with the disputed writings. Therefore, in our opinion, the court which can issue a direction to the person to give his specimen writing can either be the court holding the enquiry under the Code of Criminal Procedure or the court trying the accused person with a view to enable it to compare the specimen writings with the writings alleged to have been written by such a person. A court which is not holding an enquiry under the Code of Criminal Procedure or conducting the trial is not permitted, on the plain language of Section 73 of the Evidence Act, to issue any direction of the nature contained in the second paragraph of Section 73 of the Evidence Act. The words 'any person present in the court' in Section 73 has reference only to such person who are parties to a cause pending before the court and in a given case may even include the witnesses in the said cause but where there is no cause pending before the court for its determination, the question of obtaining for the purposes of comparison of the handwriting of a person may not arise at all, therefore, the provisions of Section 73 of the Evidence Act would have no application."
18. Admittedly, in, the instant case, no proceedings against the persons before the Magistrates aforesaid were ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 22 pending when the signatures and writings of the accused persons were obtained at the request of the Investigating Officer. Therefore, the directions of the learned Magistrates were unwarranted and not contemplated by Section 73 of the Evidence Act. As such, the report of the .
handwriting expert loses its importance and is of no consequence and thus cannot be used against the respondents."
19. In the present case, the learned Magistrate admitted that no inquiry or trial was pending before him against the accused at the time of taking the signatures. Hence, the learned Appellate Court had rightly held that the signatures were inadmissible and could not have been relied upon by the prosecution.
20. The specimen signatures were sent to GEQD for comparison which issued the report (Mark-P). The Expert did not appear before the Court to prove the report. It was submitted that the report is per se admissible under Section 293 of Cr. PC.
This submission cannot be accepted. The name of GEQD does not find mention in Section 293(4) and no notification issued by the Central Government specifying GEQD as one of the experts was brought on record. Thus, no advantage can be derived from Section 293 of Cr.PC to admit the report of GEQD. It was laid down by this Court in State of Himachal Pradesh versus Anoop Kumar 2008 (1) ShimLC 71 that the opinion of a handwriting ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 23 expert is required to be proved in accordance with the law. It was observed:-
"The allegations against Anoop Kumar are that he forged .
G.R. Ext.PW-18/A. In support of forgery allegedly committed by Anoop Kumar, the prosecution has relied on handwriting expert report Ext. PW-19/A. This report was produced by P.W.-19 Garib Dass, a Retired Inspector. The prosecution did not examine handwriting experts to prove Ext.PW-19/A. Section 293, Cr.P.C. permits the use of some reports in evidence but the report of a handwriting expert is not included in Section 293, Cr.P.C. In other words, handwriting expert opinion is required to be proved in accordance with the law. In the present case, the handwriting expert report has not been proved as per law, therefore, handwriting expert report Ext.P.W.-19/A cannot be read in evidence. In the absence of a handwriting expert report, there is nothing on record to show that Anoop Kumar has forged Ext.P.W.-18/A. The learned Sessions Judge has rightly acquitted Anoop Kumar under Section 468, I.P.C."
21. Thus, reliance could not have been placed upon the report without proper proof and the learned Appellate Court had rightly held that the report of GEQD could not be relied upon.
22. The prosecution asserted that wrong entries were made in the record which amounted to forgery. Learned First Appellate Court had rightly held that mere making of the false entry is not sufficient unless it is proved that the document was made with the intention of causing it to be believed that it was made or executed by some person or by the authority of some ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 24 person by whom or by whose authority it was not made or executed or a document was altered in material part without any authority after its execution or the document was obtained by .
practising deception upon a person not in control of his senses.
There is a distinction between a false document as is understood in law and the documents whose contents are false. (Please see Om Prakash Vs. State of H.P. Cr.MMO No. 293 of 2020, decided on 26.2.2024, paras 18 to 25).
23. Thus, the learned Appellate Court had rightly held that no forgery was established in the present case and there was nothing to show that any forged document was used as a genuine document.
24. Learned Appellate Court proceeded on the basis that since the specimen handwriting taken by the police during the investigation was inadmissible and the report of the GEQD was not proved as per law; therefore, the prosecution case was not established. The statements of witnesses were discarded for want of documentary evidence and corroboration by the report of the handwriting expert. Learned First Appellate Court erred in summarily rejecting the statements of the witnesses on this ground alone.
::: Downloaded on - 13/06/2024 20:30:35 :::CIS 2525. Jagpal Singh (Pw1) stated that he had opened an account in Post Office Dola Khariana. He handed over ₹3,000/- to the accused on 31.5.1993 for depositing it in the account. No .
passbook was issued to him. The accused told him (Jagpal Singh) to obtain the passbook after three days. When Jagpal Singh went to the accused to get the passbook after three days, the accused told him that the passbook was not received from the post office Khariana. Jagpal Singh again demanded the passbook but the accused stated that the passbook was sent for making the entry of interest. Jagpal Singh again demanded the passbook but the accused stated that the passbook was not received. The accused had issued a receipt of ₹3,000/- (Ex.PW1/A). It was written by the accused in his presence. This receipt was issued by the accused after receiving ₹3,000/-. The accused had not handed over the passbook to him despite the lapse of many years. He stated in his cross-examination that he could not tell about the contents of the complaint (Ex.PW1/B). The house of Balak Ram is located at a distance of one kilometre. He denied that ₹3,000/- was handed over to the accused at his home. He admitted that the receipt (Ex.PW1/A) bears the signatures of the accused. He went to the Post Office to deposit the amount, Hari Chand was present in the ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 26 Post Office. He denied that the money was not deposited in the Post Office but was deposited in the house of the accused. He denied that he used to deposit the amount with Balak Ram and .
withdraw the same.
26. The cross-examination of this witness shows that his statement regarding handing over of ₹3,000/- and issuance of receipt bearing the signatures of accused were not disputed in the cross-examination. Rather it was suggested that money was handed over at home and not at the post office. It was also suggested that he used to deposit the amount with the accused Balak Ram and who used to return the same. It was laid down by the Hon'ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355 that the suggestion put to the witness can be taken into consideration while determining the innocence or guilt of the accused. It was observed: -
"34. According to the learned counsel, such suggestions could be a part of the defence strategy to impeach the credibility of the witness. The proof of guilt required of the prosecution does not depend on the suggestion made to a witness.
35. In Tarun Bora alias Alok Hazarika v. State of Assam reported in 2002 Cri. LJ 4076, a three-judge Bench of this Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in the TADA Sessions case wherein the appellant was convicted under Section 365 of the IPC read with Section 3(1) and 3(5) of the ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 27 Terrorists and Disruptive Activities (Prevention) Act, 1987.
36. In the aforesaid case, this Court, while considering the evidence on record took note of a suggestion which was put to one of the witnesses and considering the reply given .
by the witness to the suggestion put by the accused, arrived at the conclusion that the presence of the accused was admitted. We quote with profit the following observations made by this Court in paragraphs 15, 16 and 17 as under:
"15. The witness further stated that during the assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night, he was carried away blindfolded on a bicycle to a different place and when his eyes were unfolded, he could see his younger brother Kumud Kakati (P.W.-2) and his wife Smt. Prema Kakati (P.W.-
3). The place was Duliapather, which is about 6-7 km.
away from his village Sakrahi. The witness identified the appellant-Tarun Bora and stated that it was he who took him in an ambassador car from the residence of Nandeswar Bora on the date of the incident.
16. In cross-examination the witness stated as under:
"Accused-Tarun Bora did not blind my eyes nor he assaulted me."
17. This part of the cross-examination is suggestive of the presence of accused Tarun Bora in the whole episode. This will clearly suggest the presence of the accused-Tarun Bora as admitted. The only denial is the accused did not participate in blind-folding the eyes of the witness nor assaulted him."
37. In Rakesh Kumar alias Babli v. State of Haryana reported in (1987) 2 SCC 34, this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34 of the IPC. While re-appreciating the ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 28 evidence on record, this Court noticed that in the cross- examination of PW 4, Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court taking into consideration the nature of the suggestion put .
by the defence and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. We quote the following observations made by this Court in paragraphs 8 and 9 as under:
"8. PW 3, Bhagat Singh, stated in his examination- in-chief that he had identified the accused at the time of occurrence. But curiously enough, he was not cross-examined as to how and in what manner he could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and that it was not possible to identify the assailants of the deceased.
9. In his cross-examination, PW 4, Sube Singh, stated that the accused Dharam Vir was wearing a shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that suggestion, PW 4 said: "It is not correct that Dharam Vir accused was wearing a shirt of a cream colour and not a white colour at that time." The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir, on the spot at the time of occurrence."
38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the cross- examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition, ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 29 we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a sugges- tion made by the defence counsel in the cross-examina- tion does not deserve any value or utility if it incriminates the accused in any manner."
.
27. Therefore, the suggestion given to the witness by the accused cannot be ignored and once it was not disputed in the cross-examination that ₹3,000/- were entrusted to the accused, the entrustment by the witness to the accused was proved and it was for the accused to explain that he had discharged the trust reposed by the witness. This position was laid down by the Hon'ble Supreme Court in State of H.P. versus Karanvir (2006) 5 SCC 381 wherein it was observed:-
10. Mrs K. Sarada Devi learned counsel appearing on behalf of the respondent would submit that no material was brought on record by the prosecution to show as to how the respondent had utilized the amount. In our opinion, the same was not necessary. In view of the admitted fact, we are of the opinion that it was for the respondent himself to prove the defence raised by him that the entire amount had not been paid to him by the complainant. The learned Judge had rejected the said defence.
11. The actual manner of misappropriation, it is well settled, is not required to be proved by the prosecution.
Once entrustment is proved, it was for the accused to prove as to how the property entrusted to him was dealt with in view of Section 405 of the IPC. If the respondent had failed to produce any material for this purpose, the prosecution should not suffer therefor.
::: Downloaded on - 13/06/2024 20:30:35 :::CIS 3028. This position was reiterated in the Mustafikhan Versus State of Maharashtra (2007) 1 SCC 623 wherein it was held:-
9. In order to sustain a conviction under Section 409 IPC, .
the prosecution is required to prove that (a) the accused, a public servant was entrusted with the property of which he has duty bound to account for, (b) the accused had misappropriated the property.
10. Where the entrustment is admitted by the accused, it is for him to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged.
11. The above position was reiterated in Jagat Narayan Jha v. State of Bihar (1995 (Supp) 4 SCC 518).
12. It is not necessary or possible in every case to prove as to in what precise manner the accused had dealt with or appropriated the goods. In a case of criminal breach of trust, the failure to account for the money proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. Although the onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode and manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation given by the accused. In the instant case, there is no dispute about the entrustment.
29. In the present case, the accused has not explained that the amount was deposited by him in the Post Office. The SB Journal (Ex.PW10/C), register (Ex.R1) and RD Journal (Ex.PW10/D) do not mention any entry of the deposit of ₹3,000/-. Thus, the testimony of this witness clearly proves that ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 31 he had entrusted ₹3,000/- to the accused for being deposited in his account and the accused had failed to deposit the amount with the post office.
.
30. It was submitted that the money might have been paid regarding some other transaction; however, the submission is without any material on record. The accused did not state in his statement recorded under Section 313 Cr.PC that this witness had paid the money to him in connection with some other transaction. The accused has denied the prosecution case in its entirety in the statement recorded under Section 313 of Cr. PC. It was also not suggested to the witness that the money was paid regarding some other transaction. Therefore, the submission that the payment was made regarding some other transaction is not acceptable.
31. Learned First Appellate Court held that as per the admission of this witness (Jagpal Singh) in his cross-
examination, Hari Chand was present in the post office; however, this admission does not dilute his categorical statement in the examination-in-chief and the cross-examination that money was handed over to the accused and the accused had issued the ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 32 receipt. Therefore, even if some other person was present in the post office that would not help the accused in any manner.
32. The testimony of this witness proved the entrustment .
and that the accused had failed to carry out the same. The learned Trial Court had convicted the accused of the commission of the offence punishable under Section 409 of IPC. The ingredients of Section 409 of IPC were explained by the Hon'ble Supreme Court SCC 547 as under:
r to in Sadhupati Nageswara Rao vs. State of Andhra Pradesh 2012 (8) "14. In order to prove the offence of criminal breach of trust which attracts the provision of Section 409 IPC, the prosecution must prove that one who is, in any manner, entrusted with the property, in this case as a dealer of fair price shop, dishonestly misappropriates the property, commits criminal breach of trust in respect of that property. In other words, in order to sustain a conviction under Section 409 IPC, two ingredients are to be proved:
namely,
(i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty-
bound to account for; and
(ii) the accused has committed a criminal breach of trust. What amounts to a criminal breach of trust is provided under Section 405 IPC.
The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly i) entrustment and ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it."
::: Downloaded on - 13/06/2024 20:30:35 :::CIS 3333. In the present case, the accused was a public servant employed in the post office. He was entrusted with the money and he had failed to discharge the entrustment to the detriment .
of the person who had handed over the amount. Thus, the testimony of Jagpal Singh establishes all the ingredients of Section 409 of IPC.
34. Phil Devi (PW2) stated that she used to deposit ₹50/-
per month; however, she did not receive any money. She used to deposit money with the accused. When she went to the accused after five years, the accused replied that he would pay money to this witness but the passbook was sent for entering the interest and obtaining the signatures of the higher officials. She did not know the amount deposited by her. She had also not put her thumb impression on the withdrawal nor had she filled any form for the same. She admitted in her cross-examination that the accused had not issued any receipt regarding the deposit or the withdrawal of the amount.
35. This witness stated that she had deposited the amount and the amount was not paid to her. The prosecution is relying upon the withdrawal form and this witness claims that the withdrawal form was not filled out by her. Learned Appellate ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 34 Court had rightly held that in the absence of a comparison of the thumb impression on the withdrawal form with her thumb impression, her testimony that the money was not withdrawn by .
her could not be relied upon.
36. Gulab Singh (PW3) stated in his cross-examination by learned counsel for the defence that he had received the money deposited in his recurring deposit account and the money was deposited by him in a fixed deposit account. Hence, his testimony shows that he had received the money and does not prove the prosecution case.
37. Simro Devi (PW4) stated that she had deposited ₹20,000/- and the accused handed over the receipt to her. She stated in her cross-examination that she had deposited ₹50-100 in the Post Office and did not know the exact amount as she is illiterate. She stated in her cross-examination that she was not sure about the money deposited by her with the accused and her testimony does not prove the entrustment of a specific amount and its misappropriation by the accused.
38. Julfi Ram (PW7) and Punnu Ram (PW8) have not supported the prosecution case. Julfi Ram stated that he had not deposited any amount. He was permitted to be cross-examined ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 35 and admitted that he had handed over Indira Vikas Patra to the accused. Indira Vikas Patra or money was not paid to him. It was not the case of the prosecution that the accused had .
misappropriated any Indira Vikas Patra; therefore, his testimony does not establish the misappropriation of any amount.
39. Punnu Ram (PW8) stated that he had deposited various amounts with the accused which were withdrawn. He was permitted to be cross-examined and he denied his previous statement recorded by the police. He stated in his cross-
examination by learned defence counsel that he had withdrawn the amount deposited by him at the time of the marriage of his daughter. Again his testimony does not establish the misappropriation of any amount by the accused.
40. Rasilu Ram (PW9) stated that he had deposited the amount of ₹4800/-. No passbook was issued to him. The accused did not return ₹4800/-. He stated in his cross-examination that no receipt was issued by the accused. He denied that he had withdrawn ₹2632/-. This testimony has also not been supported by any document and cannot be used for holding the accused guilty.
::: Downloaded on - 13/06/2024 20:30:35 :::CIS 3641. Saran Dass (PW12) stated that he had opened a recurring deposit of ₹50/- and when he demanded the money on its maturity, no amount was paid to him. He had also opened the .
recurring deposit of ₹100/- which continued for eight months.
He stated in his cross-examination that the accused was a clerk and the Post Master was some other person. He had deposited the money with the Post Master. His testimony shows that the money was deposited with the Post Master and not with the accused. Hence, the accused cannot be held liable based on his testimony.
42. Madan Lal (PW16) was posted as Inspector. He inspected the post office and found that the accused had withdrawn ₹500/- from the account of Jai Devi. The accused had also withdrawn the money from the account of Phil Devi. He admitted in his cross-examination that he could not say who had put a thumb impression in account No. 126201. He admitted that he did not know the accused personally. These admissions show that the thumb impression was not put in his presence and he is drawing inferences from the record which is not permissible.
Hence, his testimony was rightly rejected by the learned Appellate Court.
::: Downloaded on - 13/06/2024 20:30:35 :::CIS 3743. There is no other evidence to prove the entrustment and the misappropriation. Hence, the prosecution has partly succeeded in establishing that the accused had misappropriated .
₹3,000/- deposited with him by Jagpal Singh (PW1). Learned Appellate Court had not properly appreciated the testimony of Jagpal Singh and had taken a view that could not have been taken by any reasonable person in view of the admissions made in the cross-examination; hence, the judgment of the learned Appellate Court acquitting the accused of the commission of an offence punishable under Section 409 of IPC cannot be sustained. The learned Appellate Court had rightly held that an offence of forgery or using the forged document as genuine was not proved.
Hence, the judgment passed by the learned First Appellate Court is partly sustainable.
44. No other point was urged.
45. In view of the above, the present appeal is partly allowed and the judgment passed by the learned Appellate Court acquitting the accused of the commission of an offence punishable under section 409 of IPC is set aside and the judgment of the learned Trial Court convicting the accused for ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 38 the commission of an offence punishable under Section 409 of IPC is restored.
46. Learned Trial Court had sentenced the accused to .
undergo rigorous imprisonment for a period of two years and pay a fine of ₹1,000/- and in default of payment of fine to further undergo simple imprisonment for a period of six months for the commission of offence punishable under Section 409 of IPC.
Learned Trial Court was persuaded to take a lenient view on the ground that the offence was committed in the year 1992-93 and the case was pending for ten years. Learned Trial Court held that parents of the accused were dependent upon him. We are in the year 2024 which means that about 30 years have elapsed since the incident. The accused was convicted and sentenced by learned Trial Court after a trial which lasted for about twelve years. He was acquitted by learned First Appellate Court in the year 2011. He had to defend the appeal filed by the State for about twelve years. The long trial was followed by the long period of appeal. It was laid down by the Hon'ble Supreme Court in Pramod Kumar Mishra Vs. State of U.P. (2023) 9 SCC 810, decided on 4.9.2023 that the long period spent in the trial and the appeal is a mitigated circumstance. The Hon'ble Supreme Court was ::: Downloaded on - 13/06/2024 20:30:35 :::CIS 39 concerned with an offence which had taken place in the year 1987.
47. Hence, keeping in view the amount involved and the .
period of agony faced by the accused, the sentence is reduced to rigorous imprisonment of six months, while the amount of fine is maintained. Consequently, the accused is sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of ₹1,000/- and in default to undergo simple imprisonment for a period of six months for the commission of offence punishable under Section 409 of IPC. The accused is directed to surrender to serve out the sentence before learned Trial Court within one month, after which the learned Trial Court will take steps to execute the sentence as per the law.
(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 12th June, 2024 (Chander) ::: Downloaded on - 13/06/2024 20:30:35 :::CIS