Madras High Court
Jayalakshmi vs State Represented By on 23 September, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.R.C.No.618 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 13.09.2022
PRONOUNCED ON : 23.09.2022
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.618 of 2019
and
Crl.M.P.Nos.8616 to 8618 of 2019
Jayalakshmi ...Petitioner
..vs..
State Represented by
Inspector of Police,
Ariyur Police Station,
Crime No.838 of 2010. ... Respondent
Criminal Revision Case filed under Sections 397 and 401 Cr.P.C
to set aside the conviction and sentence imposed by the learned
Additional District & Sessions Judge (Fast Track Judge) Vellore in
C.A.No.85 of 2017 vide judgment dated 03.01.2019 whereby confirming
the conviction and sentence imposed by the learned Judicial Magistrate
No.I, Vellore in C.C.No.334 of 2012 by a judgment dated 31.07.2017.
For Petitioner : Mr.M.R.Thangavel
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
Page No.1/16
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.618 of 2019
ORDER
This revision has been preferred challenging the judgment dated 03.01.2019 made in C.A.No.85 of 2017 by the learned Additional District & Sessions Judge (Fast Track Judge) Vellore.
2. The case of the prosecution is that the petitioner was working as a Sub-Post Master in the Postal Department from 07.06.2007 and he had forged the signatures of the witnesses P.W.6 to P.W.9 and had misappropriated the money from their accounts, caused entries in the ledger and committed breach of trust and created forged documents and had misappropriated a sum of Rs. 31,000/- from the savings account of the customers. Hence, a complaint was preferred against the petitioner.
3. The respondent/Police registered a case in Crime No.838 of 2010 against the petitioner for the offence under Sections 409, 468, 471 and 420 IPC. After investigation laid a charge sheet before the learned Judicial Magistrate No.I, Vellore and the same was taken on file in C.C.No.334 of 2012.
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4. On completion of the trial, the petitioner has been found guilty for the above offences :
(i) for the offence under Section 409 IPC the petitioner was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of six months;
(ii) for the offence under Section 420 IPC the petitioner was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of six months;
(iii) for the offence under Section 468 IPC the petitioner was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of six months; and
(iv) for the offence under Section 471 IPC the petitioner was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-, in default, to undergo simple Page No.3/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 imprisonment for a period of six months.
5. Challenging the said conviction and sentence, the petitioner preferred an appeal in Crl.A.No.85 of 2017 before the learned Principal Sessions Judge and made over to the learned Additional District Judge (Fast Track Court), Vellore. The appellate Court dismissed the appeal by confirming the order of the trial Court. Aggrieved by the same, the petitioner has preferred the present revision case.
6.1 The learned counsel for the petitioner submitted that the prosecution had not sent the disputed documents to the Forensic Department, Hyderabad for getting expert opinion to ascertain the genuineness of the said documents, which is fatal to the case of the prosecution. When the depositors have denied the signatures found in the withdrawal Forms, no further examination is required. In the absence of the entries in their passbooks and based on the materials, the conviction recorded by the trial Court is not proper. Even assuming that the withdrawal slips were signed by the depositors, but there is no evident to Page No.4/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 show that the petitioner forged the signature and misappropriated the funds. He further submitted that the prosecution witnesses P.W.4 to P.W.7 were turned hostile. Though the alleged signatures and entries in the respective passbooks and ledger of the accounts have been disputed by the petitioner, the prosecution has failed to prove that those signatures and entries were made by the petitioner/accused herein. The case of the prosecution was only on assumption and presumption that the petitioner/accused had made the alleged signatures and entries, which cannot be a basis to convict any accused person.
6.2 The learned counsel for the petitioner further submitted that the prosecution witnesses P.W.6 to P.W.9, who were the account holders, had not stated any of the details of their accounts, much less than their account numbers during the deposition before the trial Court. Further the prosecution has failed to produce the withdrawal slips before P.W.1 to P.W.9, so as to enable the witnesses to admit or deny the signatures made in it. Further, the occurrence was taken place during October 2017, but Page No.5/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 the complaint was made only after three years i.e on 02.10.2010. The delay of three years in preferring the complaint raise a serious doubt on the complaint and the authenticity of the records, based on which, it has been stated that the petitioner was alleged to have committed the above offences.
6.3 The learned counsel for the petitioner further submitted that the evidence of P.W.1 to P.W.3, who are the officials of the Postal Department is bereft of facts and materials, so as to implicate the petitioner. Further, P.W.3-The Divisional Inspector of Postal Department, Vellore who had conducted the scrutiny of accounts on the directions of P.W.2-Senior Superintendent is not even aware of the factum of furnishing the relevant documents to the investigating officer. The prosecution has suppressed the enquiry report submitted by P.W.3 in the year 2009 and as such, the genuineness of the alleged crime is left unearthed. The petitioner being a public servant, the prosecution had not obtained sanction as required under Section 197 Cr.P.C. Therefore, the prosecution has not proved its case beyond reasonable doubts and both Page No.6/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 the Courts below failed to appreciate the entire evidence and wrongly convicted and sentenced the petitioner.
7. The learned Additional Public Prosecutor appearing for the respondent submitted that during the relevant period, the petitioner was working as Sub-Post Master in the Postal Department and he had forged the signatures of the customers caused entries in the ledger and misappropriated funds and committed breach of trust. From the evidence of P.W.1 to P.W.3 and the documents marked through the witnesses, the prosecution has proved that the petitioner forged the signatures of the customers in the withdrawal slips and withdrew the money. He further submitted that P.W.4 to P.W7 were turned hostile only during their cross examination, which was conducted after three years from the date of chief examination. The evidence of witnesses P.W.4 to P.W.7 in cross examination is totally discarded as they have turned hostile and the same need not be vitiated the case of the prosecution. However, from the evidence of P.W.1 to P.W.3 the prosecution proved its case and the documentary evidence also corroborated the same. The petitioner has not Page No.7/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 denied that during the relevant point of time, she was not in-charge of the Postal Department and she was not entrusted to the work. Hence, the prosecution has proved its case beyond all reasonable doubts with cogent evidence. Therefore, both the Courts below rightly convicted and sentenced the petitioner.
8. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondent and also perused the materials available on record.
9. In order to substantiate the case of the prosecution, on their side 12 witnesses were examined as P.W.1 to P.W.12 and 37 documents were marked as Ex.P.1 to P.37. On the side of the defence no oral and documentary evidence was marked.
10. On a careful reading of the evidence of P.W.1 to P.W.3 and Exs.P.1 to P.37, the prosecution has proved its case with cogent evidence.
11. As far as the charge against the petitioner under Section 409 Page No.8/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 IPC is concerned, the prosecution has proved that the petitioner has committed a criminal breach of trust and she has misappropriated the money in the savings accounts of the customers over which she had dominion as a Sub-Post Master. The prosecution has also proved that the petitioner was entrusted with cash from the saving accounts of customers and had dominion over them and had misappropriated the same. Further P.W.2 had conducted surprise inspection in the Ariyur Sub-Post Office and specifically in the ledger entries of the savings account numbers 5300789 and 530144 he had directed 100% inspection in the said Branch and in pursuance thereof, P.W.3 had conducted inspection and found that the savings account of Kalavathy and Suresh Babu had some discrepancies in the accounts maintained in the ledger and passbooks. The petitioner/accused had misappropriated Rs.6000/- on 10.07.2007, Rs.1000/- on 25.07.2007, Rs.2500/- on 16.8.2007 and Rs.3000/- on 11.09.2007 by forging the signatures of the customers in the withdrawal slips. The said withdrawal slips were marked as Ex.P17 to P20. Page No.9/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019
12. The said Kalavathy was also examined as P.W.7 and she had clearly deposed that she had not withdrawn the amount from her account and also denied that the signatures found in Ex.P17 to Ex.P20 were not that of her. Further, there are no entries for the amount withdrawn vide Ex.P17 to P29 in the passbook of P.W.7 and the said passbook was marked as Ex.P16. The ledger entry was marked as Ex.P22, which clearly reveals the absence of corresponding entries in the passbook of Kalavathy and Suresh Babu, vide Ex.P16. Some other customers' accounts were also tampered in the same way by the petitioner and misappropriated the funds. Therefore, from the evidence of P.W.1 to P.W.3 and also the corresponding entries in the passbook and withdrawal slips the prosecution has proved that the petitioner has committed the offence under Section 409 IPC.
13. Further, as far as Section 408 and 420 IPC are concerned the prosecution has also established the factum of entrustment and misappropriation of the amount of the depositors by forging the withdrawal slips which were marked as Ex.P3 to Ex.P7, Ex.P10 to Page No.10/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 Ex.P13, Ex.P17 to Ex.P20, Ex.P24 to Ex.27 and Ex.P31 to Ex.P34. The prosecution has specifically stated that the petitioner had deposited Rs.4,000/- on 21.08.2007 in the account without the knowledge of the depositor Kuiyumba. There is no entry of deposit of Rs.4000/- in the account of Kuiyumba and the signature in the deposit Form had been forged. Therefore, mere evidence of P.W.1 to P.W.3 and from the above said documents the prosecution had clearly proved the above said charges beyond reasonable doubts against the petitioner. Having forged the withdrawal slips for withdrawing money from the accounts of the depositors, the accused has not induced the depositors to deliver property but he had altered the valuable security of cash deposits, causing wrongful gain for herself and wrongful loss to the depositors namely P.W.4 to P.W.7 and P.W.9 dishonestly.
14. As far as Section 471 IPC is concerned, the revision petitioner forged the withdrawal slips under Exs.P10 to P12, P17 to P20, P24 to P27 and P31 to P34 as a genuine and has misappropriated the saving Page No.11/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 bank money to the tune of Rs.81,500/- as evident from the forged withdrawal slips and the accused knew that it was not the signature of P.Ws.4 to 7 and 9. Even though there was no complaint from P.W.4 to 7 and 9 or from any other depositors, the forgery has came to light on the inspection made by P.W.1 to P.W.3 and the criminal law has been set in motion through P.W.1 Indira. Therefore, there was a clear proof of fraud and dishonestly in usage of the forged withdrawal slips and the prosecution has established the above said charge against the petitioner beyond reasonable doubts.
15.The learned counsel for the petitioner vehemently contended that none of the depositors much less than the witnesses P.W.4 to P.W7 and P.W.9 have made any complaint regarding forgery of their signatures or misappropriation of funds and P.W.1 preferred the complaint only after three years and even without sending all the documents to the forensic department for comparison. Further, the prosecution miserably failed to prove his case for non-sending of all the required documents to Page No.12/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 forensic laboratory comparison, which is fatal to the case of the prosecution. Further, no depositors have preferred any complaint, as the Department in usual inspection they found certain irregularities and discrepancies based on that they conducted the inspection and call for the records.
16.However, admittedly, the withdrawal of amount were not made entry in the passbook of the customers If the customers take the money by way of submitting the withdrawal slips and certainly at the time of disbursing the money the same would be reflected in the passbooks. Since there was no corresponding entries in the passbooks, the customers were not aware of that withdrawal of money from their accounts and therefore, when the withdrawal slips were shown to the witnesses they have denied that the signature are not that of them and they have not submit any withdrawal Forms for withdrawing the money and therefore, the said work was entrusted only to the petitioner and the petitioner has not denied that she is not the person who was working at the relevant Page No.13/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 point of time. Taking into consideration the facts and circumstance this Court does not find any perversity in the order passed by the both the Courts below.
17.As far as sanction of the prosecution is concerned since the petitioner was involved in the criminal offence of forgery which is not form part of her official duty therefore, sanction is not necessary.
18.It is settled proposition of law that while exercising the revisional jurisdiction, this Court cannot sit in the arm chair of the Appellate Court and re-appreciate the evidence. However, this Court has to see whether there is any perversity in appreciation of evidence by the Courts below.
19.On a combined reading of the entire materials and judgments of both the Courts below, this Court does not find any perversity in the judgments of the Courts below. Accordingly, this Criminal Revision Page No.14/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 Case is dismissed. Consequently, connected miscellaneous petitions are closed.
23.09.2022 Index: Yes/No Speaking Order/Non-Speaking Order ms To
1.The Additional District & Sessions Judge (Fast Track Judge) Vellore.
2.The Judicial Magistrate No.I, Vellore.
3.The Inspector of Police, Ariyur Police Station
4.The Public Prosecutor, High Court, Madras.
Page No.15/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.618 of 2019 P.VELMURUGAN, J.
ms Crl.R.C.No.618 of 2019 and Crl.M.P.Nos.8616 to 8618 of 2019 23.09.2022 Page No.16/16 https://www.mhc.tn.gov.in/judis