Bombay High Court
Pundlik S/O Vishvanath Bangadkar, ... vs The State Of Mah. Thr. Its P.S.O. Pauni ... on 15 March, 2019
Author: M. G. Giratkar
Bench: M. G. Giratkar
1 jg.revn 193.10.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL REVISION APPLICATION NO. 193 OF 2010
Pundlik s/o Vishvanath Bangadkar,
aged 46 years, Secretary,
Ganesh Shikshan Sanstha, Bhendra,
Post Bhendara, tah Pauni,
district : Bhandara ... Applicant
VERSUS
(1) The State of Maharashtra,
through its P.S.O. Pauni,
district : Bhandara
(2) Pandhari s/o Ragho Selokar,
aged about 51 years,
President Ganesh Shikshan Sanstha,
Bhendara, tah Pauni, Dist. Bhandara,
Register no. F/1484 Bhandara,
at and post Bhendara. ... Non-Applicants
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Shri H. D. Dangre, Advocate for the applicant
Shri B. M. Lonare, Additional Public Prosecutor for the State/non-
applicant no. 1
Shri A. R. Sambre, Advocate for the non-applicant no. 2
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CORAM : M. G. GIRATKAR, J.
Date of reserving the judgment : 25/02/2019.
Date of pronouncing the judgment : 15/03/2019.
Judgment
The applicant (hereinafter referred to as 'accused') is
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convicted by the Judicial Magistrate First Class, Pauni for the offences
punishable under Sections 465, 468 and 471 of the Indian Penal Code
and sentenced to suffer simple imprisonment for two months with fine
of Rs. 1,000/- in default of payment of fine to suffer simple
imprisonment for one month for the offence punishable under Section
465 of the Indian Penal Code. He is convicted for the offence
punishable under Section 468 of the Indian Penal Code and sentenced
to suffer simple imprisonment for three months with fine of Rs. 1,000/-
in default of payment of fine to suffer simple imprisonment for one
month. He is convicted for the offence punishable under Section 471 of
the Indian Penal Code and sentenced to suffer simple imprisonment for
three months with fine of Rs. 1,000/- in default of payment of fine to
suffer simple imprisonment for one month. Said judgment was
challenged before the Sessions Judge, Bhandara in Criminal Appeal
No. 37/2009 and the appeal came to be dismissed by judgment dated
30-9-2010. Hence, the present revision.
2. Complainant Anandrao Wanjari was the President of
Ganesh Shikshan Sanstha, Bhandara and accused Pundlik Vishvanath
Bangadkar was the Secretary. There was meeting on 29-10-1992.
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Election of their society was held in that meeting. As per the
complainant, accused filed change report by forging the signatures of
the complainant, Devendra Gaikwad, Sau. Hiravati Panchabhai and
Ragho Selokar. Accused also forged the signatures on consent letters.
The record of the society was taken by accused. Complainant was
demanding the record but accused avoided to handover, therefore, he
suspected and went to the office of the Charity Commissioner. Then he
found that accused had submitted change report showing newly elected
body. In fact it was decided to continue old executive body, therefore,
complainant filed objection before the Charity Commissioner. He went
to the police station and lodged report about the forgery by accused
Pundlik Bangadkar. Police not taken any cognizance of the offence.
Crime was not registered by police. Therefore, Anandrao Wanjari filed
Complaint Case No. 116/1996 before the Judicial Magistrate First Class,
Pauni. Charge was framed. Complainant examined himself and other
five witnesses. Learned trial Court come to the conclusion that accused
has forged signatures of the complainant, Devendra Gaikwad,
Sau. Hiravati Panchabhai and Ragho Selokar. Relying on the oral
evidence adduced by the complainant and handwriting expert (P.W. 6
Ulhas Athale) convicted the accused as stated above. The said judgment
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came to be confirmed by the Sessions Judge.
3. Heard learned Advocate Shri Dangre for the applicant. He
has submitted that prosecution/complainant has not proved by cogent
evidence that accused forged the signatures of complainant and other
members. He has pointed out evidence of complainant Anandrao
Wanjari and submitted that as per his admission, record of the society
was with him from 29-10-1992 up to 21-2-1995. Change report is dated
29-4-1994. Therefore, it is clear that when change report was
submitted, the record of the society was with the complainant.
4. Learned Advocate for the applicant has submitted that
handwriting expert not obtained specimen signatures of the persons of
disputed signatures and of the accused, therefore, his conclusion is
faulty. He has pointed out cross-examination of handwriting expert Shri
Ulhas Athale and submitted that he could not opine as to who had put
signatures on Exhibit Nos. 133 and 134. At last, learned Advocate has
submitted that prosecution has failed to prove that accused forged the
signatures of complainant and other executive members. To prove the
opinion of handwriting expert, careful scrutiny by the handwriting
expert is required. In support of his submissions, he pointed out
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decision in the case of State of Maharashtra Vs. Sukhdev Singh and
another reported in (1992) 3 SCC 700.
5. Heard learned Additional Public Prosecutor Shri Lonare
for the State/non-applicant no. 1. He has supported the impugned
judgments.
6. Heard learned Advocate Shri Sambre for the non-applicant
no. 2. He has submitted that cross-examination by the side of accused
shows that they have admitted that there was resolution on 29-10-1992
and there was no change of the executive body. Accused himself
submitted change report showing the newly elected body. Therefore,
learned trial Court rightly observed about the admission. Learned
Advocate has submitted that handwriting expert proved that disputed
signatures were not made by the makers and those signatures were
forged. Learned counsel has submitted that there are concurrent
findings of both the Courts below. Revisional jurisdiction of this Court is
very limited, therefore, revision is liable to be dismissed.
7. There is no dispute that the revisional jurisdiction is limited.
The revisional Court has to see whether there is any perversity or
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illegality in the impugned judgment. If the perversity or illegality is
found after verifying the record, then certainly this Court can set aside
the impugned judgment.
8. It is the case of the complainant that meeting of education
society was held on 29-10-1992. As per the evidence of P.W. 1, in the
said meeting, it was decided that old executive body should continue. It
was written in the proceedings book and members present there signed
on it. As per the evidence of P.W. 1, he kept all the record of the society
in his custody from 29-10-1992. He had given the said record to the
Auditor Shri Funde on 21-2-1995. Thereafter accused taken the record
on 16-6-1995. He went to Shri Funde. Then he came to know that
accused taken the record. He demanded the said record from accused
no. 1 but he avoided. He suspected the accused no. 1, therefore, he
went to the office of Charity Commissioner, Bhandara and lodged the
complaint on 24-11-1995. After verifying the record of Charity
Commissioner, he came to know that his signature along with the
signatures of Devendra Gaikwad, Sau. Hiravati Panchabhai and one
Selokar were forged and accused submitted change report. Therefore,
they approached to handwriting expert. Handwriting expert taken the
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photographs of signatures of record and told them that those signatures
were forged and therefore, he lodged the report. Cognizance was not
taken by police, therefore, complaint was filed.
9. The question arise as to whether the accused was in
possession of record of the society on 29-4-1994. The change report was
submitted by accused on 29-4-1994 in the office of the Assistant Charity
Commissioner, Bhandara. Along with the change report, he has
submitted copy of proceedings book dated 29-10-1992 along with
consent letters, Exhibit 133 and Exhibit 134. The change report is at
Exhibit 135. Consent letters show the signatures of executive body.
10. The complainant not explained as to how the accused
produced the said documents i.e. resolution in respect of election dated
29-10-1992. The complainant himself has admitted in his evidence that
all the record of the society was with him from 29-10-1992 up to
21-2-1995.
11. P.W. 1, P.W. 2, P.W. 3 and P.W. 4 have only stated that
accused forged the signatures but none of them have stated that how the
accused persons forged their signatures. They had admitted in their
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cross-examination that they did not saw the accused while making
signatures on Exhibit 133 and Exhibit 134 (disputed documents).
12. Evidence of P.W. 5 only shows that accused submitted
change report in the office of Assistant Charity Commissioner, Bhandara
on 29-4-1994. P.W. 6 Shri Ulhas Athale, handwriting expert has stated
that he has not obtained specimen signatures of Anandrao Wanjari,
Ragho Selokar, V. S. Panchabhai, Vishwanath Bangadkar, D. P.
Gaikwad, Irawati Panchabhai and P. V. Bangadkar. He had shown
documents, Exhibits 133 and 134. He has stated that he has taken
photographs of signatures alleged to have been made by those persons.
In the cross-examination, he has further admitted that he had not taken
specimen signature of accused. His evidence shows that he has taken
the signatures of the persons who disputed their signatures and of
accused from the record. He had not taken personally specimen
signature of any of the person. In his cross-examination, he has
admitted as under :-
"Comparative signatures are examined on the basis of record
of the instant case. I was not having specimen of handwriting of
all accused person. I have not obtained specimen signature of all
accused persons. It is true I cannot opine as to who had put
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signatures on exh. nos. 133 & 134. in respect of the first six person
mentioned in my report. The signatures shown in exh. no. 136
were not taken down in my presence." (emphasis supplied)
Evidence on record do not show that accused is the only person and
none else, forged the disputed signatures. The evidence of expert
witness Athale is not helpful to prove forgery by accused.
13. Learned Advocate for the applicant has submitted that
accused gave some suggestion admitting the case of complainant.
Learned trial Court also observed that the accused have admitted about
election dated 29-10-1992 and there was no change of the executive
body. It is pertinent to note that learned trial Court has not read the
evidence as a whole. The answer given by the witnesses do not show
that those were given to the suggestions made by the counsel of
accused. Further suggestions show the denial on the part of accused
about the evidence of witnesses. Therefore, that cannot be taken as a
gospel truth that accused persons admitted the case of complainant.
14. The complainant has to prove by cogent evidence that
accused is the person who has forged the signatures and submitted
change report. Evidence of complainant in examination-in-chief itself
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shows that record of the society was with him from 29-10-1992 up to
21-2-1995. The change report and consent letters are dated 29-4-1994.
Along with change report, resolution etc. were submitted. Then
question arise as to how the accused was in possession of the record of
the society when the fact is that all the record was with the President of
the society (P.W. 1) from 29-10-1992 up to 21-2-1995.
15. The evidence of handwriting expert is not reliable because
he has not taken personally specimen signatures of the persons of
disputed signatures and all the accused. He had taken photographs of
the signatures from the record. Therefore, his evidence is to be
scrutinized very carefully.
16. In the case of State of Maharashtra Vs. Sukhdev Singh
and another (cited supra), Hon'ble Apex Court has held as under :-
"Evidence regarding the identity of the author of any
document can be tendered (i) by examining the person who is
conversant and familiar with the handwriting of such person or
(ii) through the testimony of an expert who is qualified and
competent to make a comparison of the disputed writing and
the admitted writing on a scientific basis and (iii) by the court
comparing the disputed document with the admitted one.
A handwriting expert is a competent witness whose
opinion evidence is recognised as relevant under the provisions
of the Evidence Act and has not been equated to the class of
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evidence of an accomplice. It would, therefore, not be fair to
approach the opinion evidence with suspicion but the correct
approach would be to weigh the reasons on which it is based.
The quality of his opinion would depend on the soundness of the
reasons on which it is founded. But the court cannot afford to
overlook the fact that the science of identification of
handwriting is an imperfect and frail one as compared to the
science of identification of fingerprints; courts have, therefore,
been wary in placing implicit reliance on such opinion evidence.
Since such opinion evidence cannot take the place of substantive
evidence, courts have, as a rule of prudence, looked for
corroboration before acting on such evidence. But that is not to
say that it is a rule of prudence of general application regardless
of the circumstances of the case and the quality of expert
evidence. No hard and fast rule can be laid down in this behalf
but the court has to decide in each case on its own merits what
weight it should attach to the opinion of the expert. If there
exist numerous striking peculiarities and mannerisms which
stand out to identify the writer, the court can act on the expert's
evidence.
However, before a court can act on the opinion evidence
of a handwriting expert two things must be proved beyond any
manner of doubt, namely, (i) the genuineness of the
specimen/admitted handwriting of the concerned accused and
(ii) the handwriting expert is a competent, reliable and
dependable witness whose evidence inspires confidence.
Prudence demands that before acting on such opinion the court
should be fully satisfied about the authorship of the admitted
writings which is made the sole basis for comparison and the
court should also be fully satisfied about the competence and
credibility of the handwriting expert. Though by nature and
habit, over a period of time, each individual develops certain
traits which give a distinct character to his writings making it
possible to identify the author but since handwriting experts are
generally engaged by one of the contesting parties, they
consciously or unconsciously, tend to lean in favour of an
opinion which is helpful to the party engaging him. Therefore,
before a court can place reliance on the opinion of an expert, it
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must be shown that he has not betrayed any bias and the
reasons on which he has based his opinion are convincing and
satisfactory. It is, therefore, necessary to exercise extra care and
caution in evaluating their opinion before accepting the same.
In the present case the trial court found that the evidence
on record in regard to the natural handwriting of the accused
was not satisfactory and did not inspire confidence. The trial
court also found that it was hazardous to rely on his evidence as
he had betrayed bias against the accused and in favour of the
prosecution as "he also belongs to the Police Department". On a
consideration of the expert evidence it does not appear that the
view taken by the trial court is unsustainable or perverse. Even
otherwise having regard to the facts and circumstances of the
case and the nature of evidence tendered and the quality of
evidence of the expert the prosecution has not succeeded in
establishing beyond reasonable doubt the so-called conspiracy."
17. Evidence of P. W. 6 Ulhas Athale shows that he has
favoured the party who paid him. His evidence clearly shows that he
could not give definite opinion that accused forged the disputed
signatures of their makers. He has specifically admitted in his cross-
examination that he cannot opine as to who had put signatures on
disputed documents viz. Exhibit Nos. 133 and 134. This particular
admission completely washed out the allegations against the accused.
Learned trial Court as well as first appellate Court not read the evidence
carefully and committed perversity.
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18. There is no other evidence to show that accused is the
person who made the disputed signatures. P.W. 1, P.W. 2 and P.W. 3
has specifically stated that in their presence, accused not made any
signature. P.W. 3 has stated in his cross-examination that he did not
know what is Schedule-A. The signatures on Exhibit 133 are not made
in his presence, therefore, he cannot tell who had forged his signature at
serial no. 2. They have stated that in the proceedings book, all they
have made signatures. The proceedings book was in the custody of
complainant from 29-10-1992 up to 21-2-1995 and change report was
submitted on 29-4-1994.
19. The complainant has failed to establish that accused is the
person who made forged signatures. Evidence of handwriting expert
also shows that he could not give definite opinion that accused forged
the signatures on disputed documents. Evidence of handwriting expert
shows that he had not taken any specimen signatures and handwriting
of accused. Generally, practice for the handwriting expert is to take the
handwriting of accused persons and specimen signatures on disputed
documents and after comparison of the handwriting etc. he should give
the opinion. But evidence of Ulhas Athale (P.W. 6) shows that he had
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taken photographs of the disputed signatures and signatures of accused
from the record. He has not personally taken any specimen signatures
or handwriting of accused. Therefore, handwriting expert could not
definitely opine as to who forged the signatures on disputed documents,
Exhibit Nos. 133 and 134. The specific admission of handwriting expert
not taken into consideration by both the Courts below and thereby
committed illegality. In that view of the matter, revision is liable to be
allowed. Hence, following order.
ORDER
(i) Revision is allowed.
(ii) Accused/applicant is acquitted of offences punishable under
Sections 465, 468 and 471 of the Indian Penal Code.
(iii) Accused/applicant is on bail. His bail bond stands cancelled.
(iv) Fine amount, if paid, be refunded to the accused/applicant.
(v) R & P be sent back to the trial Court.
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