Madras High Court
Syed Samsudeen vs State Represented By on 13 September, 2012
Author: B.Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:13.09.2012 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN Crl.R.C.No.1130 of 2009 Syed Samsudeen .. Petitioner Versus State Represented by The Sub-Inspector of Police, City Crime Branch, Coimbatore. .. Respondent PRAYER: Criminal Revision Petition filed under Section 397 r/w 401 of the Criminal Procedure Code against the order made in Crl. Appeal No.189 of 2008, dated 30.10.2009, on the file of the First Additional District and Sessions Judge, Coimbatore, confirming the order of conviction and sentence dated 17.6.2008, made in C.C.No.647 of 2005, on the file of the Judicial Magistrate No.2, Coimbatore. For Petitioner : M/s.N.Anand Venkatesh For Respondent : Mr.M.Mohammed Riyaz Govt. Advocate (Crl. Side) ORDER
This revision petition is filed against the conviction for an offence under Section 468, 471 and 420 I.P.C. and sentence of one year R.I. in each count with fine of Rs.5,000/- in each count in default 4 months S.I. to run concurrently.
2.According to the revision petitioner, both the Courts below have failed to properly appreciate the evidence. According to him, the lower Court has only convicted on the basis of the Expert's opinion without any corroborative evidence given by any of the witnesses. According to the petitioner, he was the power agent of the defacto complainant. The Power of Attorney was registered in the year 1994 itself. Ex.P3 and Ex.P4 are the original and the photocopy of the same. The Sale Deeds are executed after P.W.4, P.W.5 and P.W.6 purchased the property under exhibits Ex.P.2, Ex.P.8 and Ex.P.9. The sale has been executed in the year 1997 itself. Thereafter, for the first time, the complaint has been made only in the year 2004.
3.It is also made clear by him that, P.W.4, P.W.5 and P.W.6 the purchasers have categorically stated that they have met the defacto complainant before purchase and ascertained her right over the properties and then purchased the property and hence, she was aware of the sale transaction. The brokers were examined as P.W.11 and P.W.12 and they have also ascertained that they took the purchasers to the defacto complainant and they received commission both from the defacto complainant and the purchasers. Therefore, it is not the case that the defacto complainant was not aware of the sale transaction.
4.Taking into consideration at a later point of time, they have come forward with the present complaint much later in the year 2004, infact the one person who is very vital to the case is the husband of the defacto complainant who is neither been cited as witness nor examined on account of the defacto complainant, when infact P.W.2 and P.W.3 the sons have categorically stated in their evidence that they are not aware of any of the transaction and it is only their father who knew about this, therefore their evidence also could not be taken. Even P.W.1 herself have stated that she does not know directly about the complaint, she has only put her signature and only her husband knows everything. Only because of the Expert's evidence, it is opined that a signature found in the Power of Attorney as well as the signature obtained by the Investigating Officer during the course of investigation differs and as the agent he has been held responsible which according to law is not sustainable.
5.Further, he would also contend that originally the Registrar was implicated as the accused and he has been discharged. The Attesting witness of the Power of Attorney also was acquitted by the Appellate Court and only the power agent, the present revision petitioner alone has now been convicted and others have been set free. Hence, he would contend that the very conviction on the basis of the Expert's opinion is legally not sustainable without any corroborative evidence to substantiate the Crime.
6.The learned Government Advocate (Criminal Side) would contend that it is not that the signature is compared by the Expert only but also the signature obtained by the Investigating Officer. According to him, P.W.15 is one Expert who has compared the signatures in the Power of Attorney along with the admitted signature in Ex.P11 and Ex.P12 and has come to the conclusion that the signature differs.
7.He would further contend that, P.W.16, Bank Manager was summoned and examined and he produced the admitted specimen signature of the defacto complainant and subsequently, they were marked as Ex.P14 and Ex.P15. Those signatures were compared with those of the signature in the Power of Attorney by the Expert. P.W.17 who has also compared the signature produced by the Investigating Officer came to the conclusion that the signature found in the Power of Attorney and the signatures in the Bank specimen signature as well as the signature obtained by the Investigating Officer differs. Therefore, the Appellate Court has rightly come to the conclusion based on the evidence of the Expert and confirmed the sentence passed by the Court below. Hence, he would only contend that the revision has to be dismissed.
8.Heard both the parties. By consent of both the parties, the revision is taken up for final disposal.
9.At the outset, the main contention of the revision petitioner is that the evidence is not clear. The evidence has not been confirmed in tune with the occurrence as stated. In this connection, the evidence of P.W.1, P.W.2, and P.W.3 namely, the defacto complainant and her two sons, when taken up, it is very clear that the sons clearly say that they do not know anything directly in respect of any of the transactions. They would specifically admit that they are deposing only on the basis of the instructions given by their father. As rightly pointed out, the husband of the defacto complainant and the father of the P.W.2, and P.W.3 who is a vital person in this case has neither been cited as witness nor examined. This is vital to the case.
10.Even P.W.1 in her evidence would categorically state that she was not aware of what was written in the complaint Ex.P.1 though she confirms her signature, she would only state that on instructions from her husband, she gave complaint. No explanation is foregoing for the inordinate delay in placing the complaint. It is admitted that the Power of Attorney is written in the year 1994 and the sale transaction took place in the year 1997. Even as per the evidence of P.W.4, P.W.5 and P.W.6 coupled with P.W.11 and P.W.12, that the defacto complainant was aware of the transaction they have made prior to the purchase. Therefore, the complainant now cannot say that she was not at all aware of the transaction.
11.Infact, the evidence of P.W.1 is very much contradictory in nature.
VERNACULAR (TAMIL) PORTION DELETED
12.Earlier also She says VERNACULAR (TAMIL) PORTION DELETED
13.Therefore, it is a clear case where P.W.1 admits that insofaras the complaint is concerned,; it is her husband who knows everything and only at his instructions this has been done. But, unfortunately, the husband is neither been cited as witness nor examined. Therefore, the whole case, whether, the power agent the accused herein has mis-used the Power of Attorney and sold the property of the defacto complainant without her knowledge, has not been proved to the satisfaction of the Court.
14.Whereas, contra from the evidence available, it is very clear that the defacto complainant was aware of the transaction. If on this basis when we proceed further, the next important question is the Expert's evidence in this case. No doubt there are two Experts' opinion. P.W.15 is one of the Expert who clearly would compare the signature of the defacto complainant in the Power of Attorney and the admitted signature in Ex.P.11 and Ex.P.12. He has clearly stated that the signature in the Power of Attorney differs from the signature in Ex.P.11 and Ex.P.12. Next witness is P.W.16, the Bank Manager who has produced the admitted specimen signature from the Bank i.e., Ex.P14 and Ex.P15.
15.The next Expert is P.W.17 who has compared the signature found in the Power of Attorney with that of the Bank specimen signature and also the signature obtained by the Investigating Officer. Here an important question arises. The Investigating Officer gets the signature of the defacto complainant in the Police Station. He categorically admits in the cross examination.
VERNACULAR (TAMIL) PORTION DELETED
16.From the cross examination of P.W.19, Investigating Officer, it is very clear that the Investigating Officer has not obtained any permission from the Court. He has not produced the person before the Court and obtained the signature. The identity of the person has not been examined. No witnesses has been produced to show that the signature was obtained there. But this signature has been sent for comparison. The fact that the collection of such signature is not in accordance with law has been pleaded by the revision petitioner.
17.In this connection, the learned counsel for the petitioner would rely upon the judgment of the Madurai Bench of this Court reported in (2010) 3 MLJ (Crl) 625 (K.Sulochana versus State, rep. by the Inspector of Police, Vigilance and Anticorruption, Nagercoil) for the proposition whether a conviction can be given solely on the ground of the evidence of finger print Expert and in the absence of any evidence to show proper procedure has been followed in this regard. The relevant paragraphs reads as follows:
"9.The present Tamil Nadu Police Standing Orders 801, corresponds to the old order 836 and here also PSO 801(3)(f) describes proficient as, 'Proficient means an officer who has been declared by a Superintendent of Polcie or in the City of Madras by the Commissioner of Police to be competent to examine, classify and give expert opinion on finger impressions'.
And PSO 801(4)(k) informs that, 'Finger Prints by whom to be taken finger impressions shall be taken only by officers declared by a Superintendent or, in the City of Madras by the Commissioner of Police, to be qualified to take clear and well-rolled impressions'.
10.Again in case of K.Dhanasekaran v. State (2003) 1 MLJ (CRL) 217 : 2003 (1) CTC 223, this Hon'ble Court has, after dealing with the aspect of obtaining finger prints, also dealt with the question of passing conviction, on the strength of the expert evidence. This Court has this to say; at p.221 of MLJ (Crl) "9.It is also argued that in the absence of any evidence to show that the specimen signatures were obtained as per the procedure laid down under Section 5 of the Identification of Prisoners Act, it is not safe to impose conviction merely on the basis of expert's opinion. In our case, I have already referred to the fact that the evidence of P.Ws.1, 3 and 4 are not reliable for the reasons stated above; accordingly in the absence of compliance of Section 5 of the Identification of Prisoners Act, now I shall consider whether the conviction can be based only on the expert's (P.W.8's) evidence. The following conclusion of the Supreme Court in S.Gopal Reddy v. State of A.P. AIR 1996 SC 2184 : (1996) SCC (Crl.) 792 is pressed into service;
"28.Thus, the evidence of P.W.3 is not definite and cannot be said to be of clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the Courts do not generally consider it as offering 'conclusive' proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab AIR 1977 SC 1091 : (1977) SCC (Cri.) 313, while dealing with the evidence of a handwiting expert, this Court opined:
"...We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rue of law. It was held by this Court in Ram Chandra v. State of U.P. AIR 1957 SC 381, that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v. Mohan. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakruddin v. State of M.P. AIR 1967 SC 1326 : (1967) MLJ (Crl) 925, AND IT UTTERED A NOTE OF CAUTION POINTING OUT THAT IT WOULD BE RISKY TO FOUND A CONVICTION SOLELY ON THE evidence of a handwriting expert and before acting upon such evidence, the Court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
It is clear from the above judgment that it is not desirable to impose conviction solely on the evidence of expert without corroborative evidence either direct or circumstantial.
11.This Court finds itself in respectful agreement with the earlier decisions of this Court both on the question of the person by whom and the manner in which finger prints have to be obtained and also evidentiary value of the opinion of the finger print expert."
18.Therefore, the comparison of the signature of the expert on the basis of a signature obtained by the Investigating Officer in the Police Station without proper procedure cannot be accepted. Now assuming for a moment that the only evidence is the evidence of P.W.15 one Expert who would say that the signature obtained in the Power of Attorney and admitted signature in Ex.P11 and Ex.P12 differs when compared, and there is no other evidence to show that the offence has been committed by the accused, in this connection, as we have pointed out earlier, the P.W.1 defacto complainant herself is not sure about the complaint, whereas she has knowledge about the sale coupled with the evidence of P.W.4, P.W.5, P.W.6, P.W.11 and P.W.12.
19.Therefore, mens rea is not clearly established. Even otherwise, this Hon'ble Court in (2012) 2 MLJ (Crl) 594 (N.Mani Versus State by Deputy Superintendent of Police, CBCID, Metro Wing, Chennai) has held that when there is an absence of corroborative evidence and there is no independent or reliable evidence to corroborate the participation of the accused in the commission of offence, the order of conviction can be set aside. The relevant paragraphs reads as follows:
"23.In the foregoing paragraphs, the first aspect based on which is the finding of conviction i.e., identification of the accused as that of the person who opened new account in fictitious names and who presented the fabricated cheques, encashed it, got the amount credited into such new accounts and withdrew the money, is held to be not established. In that event, the other incriminating substance available against the accused is Exhibit P-15 expert opinion and Exhibit P-16 reasoning sheet. This Court after due analysis of the evidence available before this Court, found that there is no other independent and reliable evidence to corroborate the opinion of the handwriting expert about the participation of the accused in the commission of any of the acts in the manner as referred to above.
24.In the absence of such corroborating evidence, the learned counsel for the petitioner/accused seriously argued that it is not safe to rely upon without other reliable independent evidence, the uncorroborated evidence of handwriting expert to base an order of conviction. The learned counsel for the petitioner/accused has in order to fortify his contention cited the following catenna of judgments of Apex Court, our High Court and other High Courts. (i) Ram Chandra v. State of UP AIR 1957 SC 381 : LNIND 1956 SC 103, unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence; (ii) in Ishwari Prasad Misra v. Mohamead Isa, AIR 1963 SC 1738; in K.Dhanasekaran v. State by Inspector of Police, CBCID, Erode 2003 (1) CTC 223 Mad : LNIND 2002 Mad 1215. Evidence of expert opinion is not corroborated by either clear direct evidence or by circumstantial evidence. Conviction based on uncorroborated opinion liable to be set aside; (iii)Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 Con. Bench : LNIND 1963 SC 217, experts evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is useful to see if it is corroborated either by clear direct evidence of by circumstantial evidence; (iv)Fakruddin v. State of M.P. AIR 1967 SC 1326, it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the Court must always try to see whether it is corroborated by other evidence, direct or circumstantial; (v) in Bhagwan Kaur v. Shri Maharaj Krishnan Shrma and other AIR 1973 SC 1346 : (1973) SCC (Cr) 687 : LNIND 1972 SC 503 : (1974) 1 MLJ (Crl) 60, the evidence of handwriting expert unlike that of the fingerprint expert is generally of a frail character and its fallibilities have been quite often noticed. The Court should, therefore be wary to give too much weight to the evidence of handwriting expert, (vi) in Kishore Chandra v. Ganesh Prasad AIR 1954 SC 136, conviction based on mere comparison of handwriting must at best be indecisive and yield to positive evidence in the case; (vii)Magan Bihari Lal v. State of Punjab AIR 1977 SC 1091 : (1977) SCC (Cr) 313 : LNIND 1977 SC 85 : (1977) CrlLJ 711, the science of identification of finger prints is absolutely reliable and perfect as compared to imperfect nature of science of handwritings and signatures; (viii) Murarilal v. State of M.P. AIR 1980 SC 531 : (1980) 1 SCC 704, though there was neither rule of law nor any rule of prudence, which has crystalized into a rule of law, the opinion of the handwriting expert never be acted upon, unless substantially corroborated and the science of identification of handwriting, being in imperfect nature, the approach should be one of caution; and (ix) in S.Gopal Reddy v. State of A.P.(1996) CLJ 3237 SC; in Inderjit Singh and Others v. State of Punjab and Others (1995) SCC (Crl.) 837; in State of Maharastra v. Sudhdeo Singh and Another AIR 1992 SC 2100; in Magan Bihari Lal v. State of Punjab (Supra), expert opinion must always be received with great caution and perhaps none so with more caution.
25.That being the factual and legal position regarding the science of identification of handwriting, no serious reliance can be attached to Exhibit P15 expert opinion. Thus, this Court, for the discussion held above, is of the view that both the grounds on which the trial Court as well as the lower appellate Court found the accused guilty, have no legal basis and are contrary to well settled legal position and are legally and factually unsustainable and the finding is hence totally perverse and legally vitiated and the same deserves interference by this Court."
20.Therefore, in this case, as we have already pointed out there is no corroborative or independent evidence to prove the fact of the intention of the Power of Attorney holder to cheat anyone especially when there is a clear cut evidence that the defacto complainant had knowledge of the sale transaction. So merely on the basis of the Expert opinion, the conviction ought not have been granted. In this connection, the lower Court has also disbelieved the involvement of A2 and A3. The Appellate Court has acquitted them and only the Power of Attorney holder alone has been convicted. Therefore, when the evidence is not clear, it is not fair on the part of the Court to convict him. Infact, the benefit of doubt could be given only in favour of the accused.
21.In the result, the revision is allowed. The conviction for offence under Section 468, 471 and 420 I.P.C. and the sentence of one year R.I. in each count with fine of Rs.5,000/- in each count in default 4 months S.I. to run concurrently is set aside. The fine amount, if any already paid is ordered to be refunded to the revision petitioner.
pri To
1.The First Additional District and Sessions Judge, Coimbatore.
2.The Judicial Magistrate No.2, Coimbatore.
3.The Sub-Inspector of Police, City Crime Branch, Coimbatore