Orissa High Court
Adithela Immanuel Raju And Anr. vs State Of Orissa on 17 June, 1991
Equivalent citations: 1992CRILJ243
ORDER L. Rath, J.
1. The petitioners, both brothers, have preferred this revision assailing the conviction and sentence Under Section 120-B read with Section 420, IPC and Under Section 420 read with Section 34, IPC as also the conviction of petitioner No. 1 Under Sections 409, 467, 468 and 477-A, IPC and of petitioner No. 2 Under Sections 419, 467 and 467 read with Section 471, IPC. Both of them were sentenced to undergo RI for three years and fine of Rs. 3000/-, in default to undergo RI for a further period of six months on each count. The conviction and sentence were challenged in appeal which also proved abortive.
2. The allegations against the petitioners as revealed by the prosecution are that the petitioner No. 1 was the Officiating Branch Manager during the period 12-7-1976 to 22-3-1977, except for some days in between when he remained on leave, due to the absence of the Branch Manager (P.W. 4) of the State Bank of India, Evening Branch at Buxibazar, Cuttack. The Branch Manager remains in custody of the valuable security forms of the Bank of which blank bank draft form books form part of. Such bank draft books consist of 100 forms each and are kept in an locked almirah in the strong room. The key of the almirah remains with the Branch Manager. The petitioner No. 1 brought out one bank draft forms book containing Sl. Nos. 612401 to 612500 on 27-11-1986 as would appear from entry Ext. 13/1 of the stamped and Unstamped Register. Before the bank drafts books was exhausted, another Bank drafts book containing Sl. Nos. 612501 to 612600 was shown in the Stamped and Unstamped Register under Ext. 13/2 as missing, such entry having been made in the hand of the petitioner No. 1. While the bank drafts book was so shown missing, yet 35 bank drafts therefrom were utilised as having been issued in favour of different persons by the Bank for different sums of large amounts drawn on the Branches of the State Bank of India at Ankapalli, Tuni, Guntur, Vijayawada and Vishakhapatnam. Such bank drafts had not been processed in the bank in the usual procedure before the drafts were issued and while there were no corresponding entries in respect of such drafts in any of the registers of the Bank, the same had been issued under the signature of the petitioner No. 1 as the Branch Manager and corresponding advices has also been sent to the respective Branches also under his signature. The drafts had been issued in favour of fictitious persons -- B. S. Kumar, Nulu Rama Rao and Kotta Bhaskar Rao. The petitioner No. 2 identifying himself as the person under such assumed names withdraw under the drafts a total sum of Rs. 9,72,000/- although in reality no money in respect of such drafts had been deposited in the Buxibazar Evening Branch. A bank draft for Rs. 9,862.78 (Ext. 57) drawn in favour of Noolu Ram Rao was sent to Vijayawada Branch with bank transfer account from the Buxibazar Branch to such Branch in favour of Noolu Ram Rao and on the basis of that, an account was opened in that Branch. Another bank draft of Rs. 9,877.86 (Ext. 19) drawn in favour of K. Bhaskar Rao was sent to Vishakhapatnam Branch with Bank transfer account from the Buxibazar Branch to such Branch in favour of K. Bhaskar Rao in which the signature of the petitioner No. 2 was identified as K. Bhaskar Rao and on the basis of that, an account was opened in that Branch. The petitioner No. 2 also got deposited a cheque requisition form and obtained a cheque book. The cheque requisition form formed part of the cheque book of the Staff Welfare Fund which normally remained with the petitioner No. 1. On 21-3-1977 Ext. 6, a letter purported to have been issued from the Buxibazar Branch was returned undelivered as the stamp affixed was short by fifty paise and was received by the watchman of the Bank (P.W. 25). He handed over the envelope to P.W. 3, the Head Clerk in the presence of P.W. 2. On opening Ext. 6 was seen to have contained Exts. 1 to 5 the bank draft advices regarding draft Nos. 612553, 612577 and 612557 (all dated 11-3-1977) and lists of originating credits dated 11-3-1977 and 12-3-1977. P.W. 3 verified the postage register (Ext. 11) and draft issue register (Ext. 10) but found no entries relating to the issue of the letters or of the draft advices or originating credits corresponding to the contents of Exts. 1 to 5 and hence contacted the petitioner No. 1 who was then the Branch Manager. Petitioner No. 1 assured him that he would look into the matter and take appropriate action. During the period the bank was being inspected by the Regional Manager, State Bank of India, Bhubaneswar, Sri A. C. Rai Choudhury (P.W. 1), but he was not informed by the petitioner No. 1 regarding Ext. 6 and its contents. P.W. 1 was informed by P.W. 2 and on query was informed by the petitioner No. 1 that Exts. 4 and 5, the list of originating credits had not been issued from the Branch and that he was ignorant of them. P.W. 1 himself verified the draft issue register and found therein no reference to the drafts. The petitioner No. 1 also informed P.W. 1 of having already reported the loss of bank draft forms to the Regional Office on 15-12-1976 and showed him the office copy of the letter Ext. 7. On return, P.W. 1 learnt that Ext. 7 had not been received in his office. He contacted the Branch Manager, State Bank of India, Vishakhapatnam, to which Exts. 1 to 3, the advice drafts had been sent to ascertain whether the drafts had been encashed, and received the talex message in the affirmative. He lodged information with the police (Ext. 8) on which the formal FIR was drawn up and investigation taken up. During investigation, the facts as stated above were revealed and thereafter charge-sheet was submitted.
3. It is the common case of the counsel appearing for both sides that so far as the petitioner No. 1 is concerned, the case against him hinges upon the evidence relating to the identification of his signatures and initials in the different Exhibits. It is conceded by Mr. Behura that if such signatures appearing in the various documents exhibited by the prosecution are found to be that of the petitioner No. 1, his conviction cannot be assailed. He however disputes the signatures and the initials. As regards the petitioner No. 2 it is also the common case of the parties that the whole case against him is based upon his identification as having withdrawn the money under the drafts posing himself as different persons mentioned in the drafts and that unless his such identification is established, his conviction would not be sustain-able. Since in a revision the conclusions of fact reached by the forums below are usually conclusive and are not to be disturbed and the findings as are now assailed before me are findings of fact not available to be interfered with, yet since the case of the petitioners is of total lack of convincing evidence on either court, I have heard the learned counsel in detail.
4. As regards the petitioner No. 1, the oral evidence on the question of identification of the signatures of the petitioner No. 1 is that of P.Ws. 2, 8, 44, 47 and 48. Assailing the evidence of identification, it is urged by Mr. Behura:--
(i) That the petitioner No. 1 being on experienced bank officer would not have signed the documents knowing very well, if he had misutilised the bank draft forms as alleged, that such signing of the documents would be utilised against him and hence it is against probability;
(ii) That the evidence of P.Ws. 4 and 44 are not acceptable they being interested against the petitioner No. 1;
(iii) That P.W.8's evidence is improbable since it is not physically possible for him to remember and identify the signature of the petitioner No. 1;
(iv) That P.W. 47 the handwriting expert's evidence is not reliable since he himself opined of the materials before him as not adequate to arrive at a conclusion but his opinion was rendered on the basis of the same materials without any additional documents. He was also not asked to compare the signatures of the petitioner No. 1 with his specimen signatures available at the other Branches of the State Bank of India including the Branches which were defrauded;
(v) That reasons for his opinion were also introduced only at the stage of evidence without the copy of the same having been earlier given to the petitioners which procedure caused prejudice to the petitioner No. 1;
(vi) The prosecution having been launched against A.I. Raju, the petitioner No. 1 but the signatures verified being that of I.S. Adithela and P.W. 47 having not examined the signatures of A. I. Raju, his evidence has no value; and
(vii) That there is no evidence save that of P.W. 48 that the petitioner No. 1 A. I. Raju signs as I. R. Adithela.
5. A singular feature of the case is that the petitioner No. 1 not only denies his signatures on the drafts encashed as also on the advices and the connected documents, but also his signatures and initials on internal correspondences in the bank. In one word he had not admitted any one signature or initial. Ext. 7 is a letter purported to be under the initial of the petitioner No. 1 on 15-12-1976 to the Regional Office intimating missing of the book of draft forms bearing Nos. 612501 to 612600 and soliciting instructions in the matter. Ext. 9 is a letter from the Bank on the same day (15-12-1976) under his signature purporting to send the Branch's special letter No. 29/317 separately along with other Special Letters. The Special Letter No. 29/317 is the letter Ext. 7. Ext. 9 is copy of the Ext. 101 Exts. 102 to 115 are letters addressed by the petitioner No. 1 to the Regional Office in ordinary course of business. Each of these letters purport to carry his signature. Though such letters have been utilised as containing his specimen signature, yet such signatures are not admitted by the petitioner No. 1. Exts. 1, 2 and 3 are the advices of the drafts which were returned back. Exts. 19 to 38, 57 to 63, 71/1, 73/2, 78, 80, 82, 86, 88 and 90 are the thirty-five drafts which were utilised from the missing bank drafts book. Ext. 42 contained the signature of the petitioner No. 1 as verifying the specimen signature of one I.R.B. Rao, Exts. 13/1 and 13/2 are the initials of the petitioner No. 1 appearing on the stamped and unstamped register regarding taking out of the bank drafts book containing Nos. 612401 to 612500 and regarding missing of bank drafts book containing Nos. 612501 to 612600 respectively. There are a large number of other exhibits also totalling 89 in number bearing on the question. While P.W. 2 has identified the signatures of the petitioner No. 1 on Exts. 1, 2 and 3, P.Ws. 4, 8, 44 and 47 have identified the signatures and initials of the petitioner No. 1 on all the exhibits. P.W. 1 was the Regional Manager of the State Bank of India, Bhubaneswar, at the relevant time and on 21-3-1977 when Ext. 6 was received in the Buxibazar Branch, he was inspecting the Branch. It is his evidence that as per paragraph 14 of Chapter I of Book of Instructions and Authorisations issued by the Head Office, a Branch Manager is required to take immediate steps in cases where the facts as were revealed by the contents of Ext. 6 happened but that till the time he talked the matter with the petitioner No. 1 he had not taken any steps of contacting the Vishakhapatnam Branch or intimating about the occurrence to the Regional Office. He also stated as to what steps are to be taken when a bank draft book is found missing. It appears from his evidence that a register known as stamped and unstamped register is maintained in regular course of business to account for the valuable security forms received from the Security Forms Press, Nasik of the Central Government. Bank Draft Forms constitute one such valuable security forms received from that Press and as per the rules, such forms are entered in the register. P.W. 1 verified the register and found the book containing 100 folios to be missing from 15-12-1976. Three of the numbers of that missing book were tallying with the number of the drafts referred to in Exts. 1, 2 and 3. On his making a reference to the petitioner No. 1 regarding such fact he was informed by him that he had already reported the fact of loss to the Regional Office on 15-12-1976 and showed him the office copy of the letter Ext. 7. After his return to the Regional Office, he searched for the original of Ext. 7 but found such letter not to have been received. P.W. 2 was a clerk of the Bank and testified to the fact that Ext. 6 containing Exts. 1 to 5 was handed over to him. Exts. 1 to 3 were of the date of 11-3-1977 on which date the petitioner No. 1 was on leave. Those documents carried his signatures with which he was acquainted. He verified the draft issue register since he was at that time the Checking Officer of the Bank and it was his duty to clear the cash register. On verification of the draft issue register he did not find any posting therein regarding Exts. 1, 2 and 3. P.W. 4 was the Branch Manager during whose absence the petitioner No. 1 was functioning as the Branch Manager. He has identified the signatures and initials of the petitioner No. 1 appearing on all the documents. It is however the submission of Mr. Behura that evidence of P.W. 4 should not be accepted since in the absence of any evidence implicating the petitioner No. 1, the responsibility of the missing drafts should be that of P.W. 4 himself and hence it would be to his benefit to testify against the petitioner No. 1. Reliance has been placed for the purpose on (1988) 1 Crimes 520 : (1988 Cri LJ 1027) (Dhulamani Behera v. State of Orissa). Apart from the fact that no mala fides were suggested to P.W. 4, even if it is accepted that P.W. 4 would have an interest adverse to the petitioner No. 1, yet his evidence would not be liable for total rejection on that count but has to be appreciated with caution and it would be necessary to seek some independent corroboration to his evidence. Such corroboration is forthcoming in an overwhelming manner in the evidence of P.Ws. 8, 44 and 47. P.W. 8 was the Office Manager of the Regional Office since December 1975. It is his evidence that letters addressed to the Chief Regional Manager and the Regional Managers of the Region Nos. 1 and 2 were received in his office and thereafter were processed. He was well acquainted with the signature of the petitioner No. 1 in due course of official business. Exts. 101 to 115 were letters of the Buxibazar Branch under the signatures of the petitioner No. 1. He also proved the signatures and initials of the petitioner No. 1 on all other exhibits and further stated that the cheque book of the staff welfare fund normally remains with the person responsible for accounting and the Branch Manager thus controls the fund for his own Branch. In his cross-examination nothing material has been brought out to shake his evidence. The only challenge urged by Mr. Behura regarding his evidence is of it being improbable for P.W. 8 to have remembered the signatures or the initials of the petitioner No. 1 since he being the Office Manager of the Regional Office, he must be receiving very large correspondences every day and hence it would be physically impossible for him to remember and identify the signatures of the petitioner No. 1. The submission has no force absolutely. There is no evidence that under the Regional Office the Branches functioning are so very large in number and the correspondences are so very large as to make it humanly impossible as to remember the signatures and the initials of the petitioner No. 1. Such a question has not been put to him also. He has been accepted as a credible witness by both the courts below and hence his evidence remains completely trustworthy. It must hence be taken that the signatures and initials appearing in Exts. 101 to 115 and Exts. 7 and 9 were of the petitioner No. 1 only as also the signatures appearing on all other exhibits including the draft advices and the bank drafts etc.
6. P.W. 44 was working as the Head Cashier of the Bank since its inception up to January 1979. He testified of being acquainted with the handwriting and signature of the petitioner No. 1 and also having known his brother the petitioner No. 2. The petitioner No. 1 was staying in the upstair of the building in which the bank was being held and his brother was frequently coming to him. It was his evidence that the bank security forms, which include bank draft forms, cheque forms and specimen signature cards, remain in the custody of the Branch Manager in an almirah inside the strong room. The strong room has a double lock system which means that unless the keys in possession of two different persons are used simultaneously, the lock could not be opened. The key of the almirah containing the bank security forms etc. however used to remain exclusively with the Branch Manager. He also proved all the exhibits in which the signature and initial of the petitioner No. 1 appear, as also the other exhibits. This witness's evidence has been assailed on the only ground that he being the possessor of one of the keys of the strong room, he had the opportunity to remove the bank draft forms and hence a case could have been equally made out of his having utilised the missing bank drafts to defraud the Bank for which his evidence should not be believed. As a corollary to the submission it is also submitted that the signatures and the initials of the petitioner No. 1 were never confronted to other competent witnesses like P.Ws. 2, 3, 26 and 30 even though they were the employees of the bank and were the natural and non-interested witnesses to identify those. The argument is self-defeating since as a matter of fact P.Ws. 2 and 8 have identified the signatures and initials of the petitioner No. 1 and hence the evidence of P.Ws. 4 and 44 has ample support from these witnesses. P.Ws. 4 and 44 being such natural and non-interested witnesses, there was no necessity for the prosecution to multiply witnesses on that count. The evidence of P. W. 47, the handwriting expert who also proved the disputed signatures of the petitioner No. 1 as appearing in the bank drafts and advices, the verification signature, the initials appearing in Exts. 13/1 and 13/2 etc. as also all other documents, is challenged since he stated that on receipt of the disputed documents for verification he conducted a preliminary examination and thereafter requested the Superintendent of Police, C.I.D. Crime Branch to supply him more admitted documents containing the writing and signatures of both the petitioners. But in reply he was informed that no more documents containing the writings and signatures of both the petitioners were available and he was asked to compare the disputed signatures of the petitioner No. 1 only. He marked those admitted signatures as A/1 to A/15. It has also been submitted by Mr. Behura, relying upon Exts. 158/1 and 158/2, i.e. the letter of P.W. 47 to the Superintendent of Police, C.I.D., Crime Branch, and the reply to such letter, that P.W. 47 expressed opinion of it being not possible to examine unless some more admitted documents containing the writing and signature of both the petitioner are supplied and the fact remaining that such request was turned down. The specific evidence of P.W. 47 is that he compared the signatures and initials of the petitioner No. 1 with his admitted signatures and reached the conclusion of the disputed signatures as belonging to that of the petitioner No. 1. He also gave in detail his reasons for reaching such conclusion and stated that the similarities are significant and sufficient to prove the common authorship of the disputed and admitted signatures. His statement in Ext. 158 was never confronted to him and his explanation was not obtained thereto and hence the submission of the learned counsel is not acceptable that because of such statement in Ext. 158/1, the opinion of P.W. 47 must be thrown out. Besides, the opinion of the expert (P.W. 47) being also sufficiently corroborated by independent witnesses like P.Ws. 2 and 8 as also P.Ws. 4 and 44, such evidence is not liable to be rejected and has been correctly relied upon by both the courts below. It has also been submitted by the learned counsel that the reasons in support of the conclusion reached by the expert had not been supplied to the petitioners earlier and were introduced for the first time in the court for which they were prejudiced. It has however not been shown as to in what manner such prejudice was caused. It is not the case of the petitioners that the opinion of the expert had not been earlier given. Though the reasons supporting the opinion were introduced at the stage of evidence, it is not the case of the petitioners that they were not afforded opportunity for cross-examination in that regard. If they were prejudiced in any manner due to non-supply of the reasons, they could have asked for respite from the court to more effectively prepare themselves for the purpose of cross-examination. It is also not shown that the petitioners have been prejudiced in any other manner by such fact. This objection hence has no merit.
7. An objection has also been raised that all the admitted signatures as also the disputed signatures relating to the petitioner No. 1 are not his since those are all signatures of one I. R. Adithela whereas the petitioner No. 1 is A. I. Raju and that there is no evidence excepting that of P.W. 48, the Investigating Officer, that the petitioner No. 1 A. I. Raju used to sign as I. R. Adithela. The petitioner No. 1's full name is Adithela Immanuel Raju. P.W. 48 deposed of the petitioner No. 1's full name being so and that he used to sign as I.R. Adithela which signatures were found in all the registers containing the specimen signature maintained in different Branches of the Bank. The signature of the Branch Manager is maintained in all the Branches of the State Bank of India and such signature of the Branch Manager is given a code number. P.W. 48 stated that the code number, so far as the signature of the petitioner No. 1 is concerned, was A. 456 and such code number was found in all the signatures of petitioner No. 1 in all the registers of specimen signatures maintained in all the Branches of the State Bank of India all over India. The code number of the signature has also been mentioned in the seizure list. Such evidence of the Investigating Officer (P.W. 48) is assailed by Mr. Behura contending that the evidence to show the petitioner No. 1 A.I. Raju having signed as I.A. Adithela should have come from the witnesses who identified his signature and not from the Investigating Officer. The submission has no force as P.Ws. 2, 4, 8 and 44 have identified the disputed signatures and initials as that of the petitioner No. 1. It is hence beyond any pale of doubt that the petitioner No. 1 used to sign as I.R. Adithela. P.W. 48 also explained that the other Branches did not want to spare the specimen signatures of the petitioner No. 1.
8. In view of such state of evidence it has to be held, concurring with the conclusions reached by both the courts below, of there being overwhelming evidence of the petitioner No. 1 to have been in custody of the valuable security forms of the bank and to have misutilised the same in the manner alleged by removing the bank drafts, showing them as missing, and utilising them to prepare false bank drafts drawn on different branches in the names of fictitious persons and also sending corresponding draft advices and other correspondence and to also have enabled withdrawal of cheque books from Vijayawada Branch and Vishakhapatnam Branch by the petitioner No. 2 styling himself as Noolu Rama Rao and Kutta Bhaskar Rao and that as a result of such misutilisation of the bank draft forms and other forms, the Bank was defrauded of the amount of Rs. 9,72,000. In that view of the matter, the conviction and sentence of the petitioner No. 1 are unassailable.
9. So far as the petitioner No. 2 is concerned, the case of the prosecution against him is that he withdrew the money from the branches of the State Bank of India at Anakapalli, Guntur, Tuni, Vijayawada and Vishakhapatnam under thirty five drafts issued by the petitioner No. 1 from out of the missing draft book. At Anakapalli he encashed two drafts on 7-12-1976 posing himself as B. S. Kumar in whose favour the drafts were made out payable on the Anakapalli Branch (Exts. 99 and 88) and similarly on 18-12-1976 he also encashed another Draft (Ext. 86) posing himself as B. S. Kumar in the same branch. At Guntur he encashed two drafts (Exts. 71/2 and 73/2) on 21-12-1976 also posing himself as B. S. Kumar, and at Tuni he encashed two drafts on 8-12-1976 (Exts. 82 and 78) and one draft on 18-12-1976 (Ext. 80) under the same name. So far as Vijayawada Branch is concerned, a sum of Rs. 2,43,862.78 paise was deposited in the account of one Noolu Rama Rao on the basis of seven forged drafts (Exts. 57 to 63) and out of such amount the petitioner No. 2 withdrew a sum of Rs. 2,00,000/- under cheque bearing No. SD 26 171804 (Ext. 122/2) which cheque formed part of the cheque book obtained from that very Branch on the basis of a cheque requisition slip (Ext. 70) contained in the cheque book meant for office use of the Buxibazar Branch. So far as Vishakhapatnam Branch is concerned, it is the case of the prosecution that twenty bank drafts Exts. 19 to 38 had been issued by the Buxibazar Branch in favour of one Kotta Bhaskar Rao for a total sum of Rs. 4,81,866.86. A fictitious current account purported to be standing in the name of Kotta Bhaskar Rao in the Buxibazar Branch was transferred to that Branch. The petitioner No. 2 personating himself as Kotta Bhaskar Rao withdrew directly a sum of Rs. 1,87,000/- under the bank drafts Exts. 20, 21, 23, 24, 26, 27 and 31 and withdrew a sum of Rs. 4,79,000/- under three cheques Exts. 39, 40 and 41. The cheques which were used are part of the cheque book issued to the President and the Secretary of the Staff Welfare Fund, Buxibazar Branch, which was to remain with the Branch Manager.
10. It is agreed to by the learned counsel appearing for the petitioners as also by the learned Additional Government Advocate that the entire evidence against the petitioner No. 2 consists of his identification by the witnesses. P.W. 47, the handwriting expert has not been able to identify his signatures. Such identifying witnesses are P.Ws. 9, 12, 14, 20, 21, 24, 28, 32, 34 and 35. P.Ws. 9 and 35 relate to the transaction at Vijayawada; P.Ws. 12 and 24 relate to the transaction at Guntur; P.W. 14 relates to the transaction at Tuni; P.Ws. 20, 21 and 28 relate to the transaction at Vishakhapatnam; and P.Ws. 32 and 34 relate to the transaction at Anakapalli. Such identification of the petitioner No. 2 is assailed by Mr. Behura as follows :--
(1) Identification was done by some witnesses for the first time in the Court;
(2) Holding of the T.I. Parade was inordinately delayed;
(3) No special feature of the petitioner No. 2 was mentioned by the witnesses so as to recall his identification;
(4) All the Branches in which the transactions were made were very busy Branches and hence it was not possible for the witnesses except P.W. 37, to have recalled any identifying features of the petitioner No. 2 so as to identify him; and (5) The petitioner No. 2 had been earlier shown to the witnesses.
11. So far as P.Ws. 9, 20, 28 and 34 are concerned, they have identified the petitioner No. 2 for the first time in Court. There is no corresponding identification by them of him in the T. I. Parade. Hence the evidence of such witnesses regarding identification cannot be given any credit and must be rejected. It is the next submission of Mr. Behura that T.I. Parade having been held much beyond two months of the date of occurrence relating to each of the transactions, the identification of the petitioner No. 2 in such T.I. Parade cannot be attached any weight. It is true, as is also conceded by the learned Additional Government Advocate, that while the petitioner No. 2 was identified in the T.I. Parade on 20-5-1977 the occurrences at Guntur, Tuni, Vishakhapatnam, Anakapalli and Vijayawada, in respect of which P.Ws. 12, 14, 21, 24, 32 and 35 identified the petitioner No. 2, respectively took place on 21-12-1976, 8-12-1976; 28-12-1976, 7-12-1976 and 18-12-1976, and 20th, 21st and 27th December 1976. Placing reliance on (1990) 2 Orissa LR 324 : (1991 Cri LJ 846) (Satrughana alias Satrughna Panda v. State of Orissa) and (1990) 2 Orissa LR 542 (Mangal Hembram v. State of Orissa), it is the submission of Mr. Behura that since admittedly more than two months had elapsed in between the occurrences and the date of identification, such identification is to be thrown out.
12. The judgments in both the citations were delivered by me. In the first case, considering the question of delay as a fatal factor to the T.I. Parade, it was held that such delay had two aspects, one remediable and the other irremediable. The remediable delay is the one where the delay is in between the date of arrest and the holding of the T.I. Parade. In such a case a legitimate suspicion is cast on the bona fides of the parade and unless there is reasonable explanation for the delay, a conclusion may be reached of there being manipulation and sustained attempt for organising a sure identification. But where the explanation is satisfactory, such delay may be held not to be fatal to the prosecution. The other type of delay held as irremediable is the one in between the date of occurrence and the holding of the T.I. Parade where the delay is of a length of time after which it is not possible for a person of reasonable memory power to recall the features of the suspect under circumstances in which the identifying witnesses saw the accused. In such a case an explanation for the delay would not remedy the fault. In the case it was observed :--
"Where the delay is such as would convince the Court that the impressions of the witness of the accused might have been blurred or obliterated his identification of a suspect would intrinsically be not acceptable even though the T. I. Parade has been held within a short time after apprehension of the suspect. Where such is the case, no amount of explanation can improve the inherent weakness of the identification.
xx xx xx xx xx xx xx xx xx Relying upon such authorities, it may be held, though not as a mathematical rule, that ordinarily an identification parade held beyond two months from the occurrence would not inspire confidence though however there may be exceptions, like when there are peculiar circumstances or reasons for the witness to remember the impressions, expressions of features of the accused with greater intensity and vividness, or that there are peculiar identifying features which were disclosed by the witness at the earliest opportunity and the identification parade is held taking all precautions so as not to enable the witness to single out the suspect in the parade because of such exclusive features alone. It has to be remembered that though a general rule may hold good in most of the cases, it cannot be full proof in all cases since incidents/interactions between the witness and the suspect at the time of the occurrence may vary from case to case."
In this background of law it is to be examined as to how far the submission of Mr. Behura is acceptable. P.W. 12 was the Manager of Accounts in Guntur Branch on 21-12-1976 and is one of the identifying witnesses for the transaction at Guntur. It is his evidence that on that day P.W. 11, the Assistant Accountant came to him with two bank drafts Exts. 71/2 and 73/2 and sought for his advice since the payee under the drafts was unable to secure any local person for his identification. As the amounts were large P.W. 11 had insisted on his personal identification by some local man. He called the payee to his table. The payee was the petitioner No. 2 whom he identified in the dock. He enquired him of his purpose of visiting Guntur and as to why he got the drafts to be encashed there. The petitioner No. 2 had replied that he was a cloth merchant at Cuttack and had come there for purchase of some handloom cloth for a fair that was going on there. As the amounts were large, he asked him to obtain some local person for identification to which the petitioner No. 2 replied that in view of the two introduction letters Exts. 76/2 and 77/2 obtained from the Branch Manager, Buxibazar Branch, there was no need for insistence of his identification by any local person. He started speaking in English then in Hindi and lastly in Telgu, and as the witness was not conversant with Hindi, he took the assistance of one V. Venkata Rao (P.W. 24), another officer of the Bank to translate the words. Not being satisfied about his identity P.W. 12 referred the matter to the Branch Manager. Then a trunk call was booked by him to have a talk with the Branch Manager, Buxibazar Branch. After the call matured, P. W. 24 talked with the Branch Manager there. P.W. 12 came to know from P.W. 24 that the Branch Manager, Buxibazar had informed him that the bank drafts were in order in all respects and the letters of introduction having been issued the payment could be made. Thereafter at the instance of the Branch Manager he directed P.W. 11 to pass the drafts which he accordingly did. Ext. 117 is the entry regarding the trunk call to Buxibazar in the trunk call register. Ext. 118 is the trunk call bill for the period 16-12-1976 to 15-1-1977 issued by the postal authorities. P.W. 11 was a Grade II Officer of the Bank at Guntur and corroborated P.W. 12 that at the counter two bank drafts Exts. 71/2 and 73/2 along with two advices and two introduction letters were presented to him. Exts. 72/1 and 74/1 are the two advices and Exts. 76/2 and 77/2 are the two introduction letters. He also verified the signatures of the Branch Manager, Buxibazar Branch appearing on the bank drafts and advices with reference to the specimen signature kept in the bank and called the payee, B. S. Kumar in whose name the drafts stood. He asked him as to whether the bank drafts belonged to him and why he had come to Guntur. He having explained his purpose, P.W. 11 wanted him to be identified by some local person but the payee pleaded his inability, since he was not locally known. For such reason P.W. 11 informed the matter to P.W. 12. He also corroborated the fact of the telephone call. P.W. 24 besides having identified the petitioner No. 2 both in the T. I. Parade and in the dock, also corroborated P.W. 12. He is the person who had a telephonic talk with the person who had identified himself as the Branch Manager of the Buxibazar Branch. The evidence of this witness is challenged because of his statement that till he came to attend the T.I. Parade he had not been examined by the Investigating Officer. It is however stated by P.W. 48 that he examined P.W. 24 on 10-5-1977 since the statement of the Investigating Officer was with reference to the case diary, the statement made by P.W. 24 appears to be more of a confusion than fact. From such State of evidence it appears that the petitioner No. 2 had sufficient exposure during banking hours to P.Ws. 12 and 24 and the encashment of the two drafts Exts. 71/2 and 73/2 was done under special circumstances for which it was eminently possible for them to have remembered the petitioner No. 2 even after lapse of more than two months and hence the identification by them of him cannot be rejected merely upon the application of the mathematical rule. P.W. 32 was the Accountant of the Anakapalli Branch on 7-12-1976. He identified the petitioner No. 2 both in the T.I. Parade as also in the Court. His evidence was to the effect that he received two bank drafts (Exts. 88 and 90) which were first presented in the counter and received by the Counter Clerk, M. G. Sankar Rao (P.W. 34). After making the necessary entries, the drafts were sent to him for passing. The two drafts were presented along with the introduction letter bearing the signature of the Branch Manager, Buxibazar Branch (Exts. 92 and 92/1). He compared the signature of the Branch Manager of the Buxibazar Branch appearing on both the drafts as well as on the introduction letters with the specimen signature kept in the office and found them to be tallying. He called the payee, the petitioner No. 2, to his table as he was not a local man and asked him to give his full address. He wrote down his full address on the reverse of these drafts in his presence. Exts. 88/1 and 90/1 are the endorsements made by the payee containing his full address. Being satisfied, he passed both the drafts for payment and sent them to the cash section for payment. Again on 18-12-1976 another draft for Rs. 16,500/ - was issued by the Buxibazar Branch in favour of B. S. Kumar along with the introduction letter (Exts. 93 and 93/1). The draft is Ext. 86. After comparison of the signature appearing on the drafts as well as on the letter of introduction with the specimen signature of the Manager, Buxibazar, he called the payee to his table and asked him to write his full name and address on the reverse of the draft which he did. Ext. 86/1 is the endorsement made by him containing his full name and address. He identified the petitioner No. 2 as being the payee on both the occasions. No doubt, it is submitted by the learned counsel appearing for the petitioners that all the branches of the State Bank of India at the respective places including Anakapalli being very busy branches it could not have been possible for P.W. 32 to identify the petitioner No. 2 after such lapse of time. But because of the special circumstances as narrated by the witness and the occurrence having taken place in broad day light, the identification by the witness cannot be thrown out. P.W. 35 was working as Receptionist in Manorama Hotel situated at Vijayawada. He identified the petitioner No. 2 both in the T.I. Parade as well as in the court and stated that the petitioner No. 2 came to the hotel on 20-12-1976 at 0.15 hour and he allotted him room No. 305. The petitioner No. 2 gave out his name as N. Rama Rao and occupied the room after filling up the registration card. He also himself made the necessary entries in the arrival and departure register maintained in the hotel in respect of the petitioner No. 2. Ext. 147 is the relevant entry in the register whereas Ext. 146 is the registration form filled in by the petitioner No. 2. On 21-12-1976 between 9 a.m. and 10 a.m. the petitioner No. 2 came to him in the hotel and giving him one requisition slip and three bank drafts requested him to deposit the amount under the drafts in his account in the Vijayawada State Bank of India and obtain a new cheque book on the basis of the requisition slip as he was leaving for Guntur on urgent work. He also gave him some money and requested him to obtain an air ticket for flight from Vijayawada to Vishakhapatnam in the name of A. K. Roy. The witness pointed out to him that he had no knowledge in banking affairs and that he should contact the Personal Banking Divisional Manager over phone that he would be sending a man for the job who should be given help. The petitioner No. 2 rang up the Personal Banking Divisional Manager and left the hotel. The witness went to the Air India Office as requested and then went to the State Bank of India and handing over the papers given by the petitioner No. 2 to the Personal Banking Divisional Manager contacted the different Officials of the Bank as per his instruction and carried out the usual procedures for depositing the drafts. He signed the challans himself and wrote on the reverse of the challans and thereafter on submission of the requisition slip also obtained a cheque book. Ext. 70 is the requisition slip which had been given by the petitioner No. 2 to him. On return he gave the cheque book as also the air ticket to the receptionist of the hotel who relieved him, with the instruction that the same should be made over to the petitioner No. 2 on his return. The statement of this witness is sought to be discredited by his statement in his cross-examination that on 20-12-1976 his duty hour was 6 a.m. to 10 a.m. in the morning and from 9.30 p.m. till the following morning at 6 a.m. At 6 a.m. in the morning he relieved the receptionist Jagadish Kumar who was on duty from the previous night from 9-30 p.m. till he was relieved by him. The witness stated of his having not performed any duty on 20-12-1976 at night and his previous statement that he returned to duty on that day at 9-30 p.m. at night and having worked till the following morning 6 a.m. was incorrect. Though there is some confusion in his statement regarding his duty hour on 20-12-1976 and consequently his having himself registered the petitioner No. 2 in the hotel on 20-12-1976 is open to doubt, yet it does in no way affect the right of his specific evidence so far as having acted in pursuance of the instructions of the petitioner No. 2 to deposit the drafts, obtain the cheque book and the air ticket are concerned. The credibility of this witness and the effect of his evidence as regards identification of the petitioner No. 2 is thus beyond question. However I am inclined to agree with the learned counsel appearing for the petitioners so far as the evidence of P.Ws. 14 and 21 regarding the petitioner No. 2's identification at Tuni and Vishakhapatnam is concerned, as the evidence of both the witnesses reveals that the transaction of encashment of the drafts by the petitioner No. 2 with them could have lasted only for few minutes. Their capability to recognise the petitioner No. 2 after lapse of nearly five months does not appear to be plausible. Though in a revision the appreciation of evidence by the courts subordinate is not liable to be interfered with, yet where it is found that the conclusions reached by such courts are against the established practice of law and the decisions of the higher courts, such conclusions cannot be allowed to stand. I would hence hold that the identification of the petitioner No. 2 in respect of transactions at Guntur, Anakapalli and Vijayawada stood proved whereas there is no reliable evidence as regards his involvement in the transactions at Tuni and Vishakhapatnam.
13. The next submission raised by Mr. Behura is that the witnesses identifying the petitioner No. 2 have not referred to any special features of him so as to aid their identification after lapse of about five months of their having seen him. It is submitted that any identifying features have not been stated by the witnesses to the Investigating Officer also. Such a question was considered by in the very citation relied upon by Mr. Behura, (1990) 2 Orissa LR 324 : (1991 Cri LJ 846) (supra) where on the conspectus of a number of decisions it was observed that it has to be remembered that it may not be always possible for a witness to give the special identifying features of a person since there may not be any, but all the same the totality of his impression might have been retained by the witness and is capable of being recalled at the time of identification. It was further observed that it is common human experience that human mind records many uncommunicable and untranslatable impressions of an object, be it living or otherwise, and that unless sufficient time has elapsed to obliterate such impression, the mind may be well at case to recall the impression to aid unerring identification of the object. Keeping in view the background of the intercourse which the petitioner No. 2 had with the witnesses as is deposed to by them, I would think that the time lapse was such so as not to obliterate their impression of the petitioner No. 2. This contention of Mr. Behura must hence be rejected.
14. Another submission advanced is that the petitioner No. 2 had been earlier shown to the witnesses and hence the T.I. Parade held was a sham one. For such purpose reliance has been placed on the evidence of P.W. 48 and P.W. 2. There is no statement of the Investigating Officer which supports the contention. Suggestion made to him in that regard was denied in para 20 of his deposition. D. W. 2 is a witness who deposed such fact but however for reasons pointed out by the trial and the appellate courts which need not be reiterated here, he is not a believable witness. This contention is also accordingly rejected. The identification by the witnesses in the T.I. Parade has also been assailed alleging the presence of police at the parade. For the purpose my attention has been drawn to the evidence of P.Ws. 14 and 21. P.W. 14 stated that two constables called him and they had also accompanied him when he went to identify the accused. P.W. 21 also stated that along with the persons conducting the T.I. Parade there were some constables but he could not remember their number. P.W. 40 is the Magistrate who conducted the T.I. Parade and Ext. 149 is the report of the T.I. Parade. It was his evidence that in all there were six identifying witnesses and they were kept outside the jail where the T.I. Parade was held. The suspect was mixed up with 19 other under trial prisoners of similar dress and appearance and thereafter the witnesses were called one after another. No police officer was present inside the jail premises and he took all precautions to avoid collusion amongst the witnesses. The Jailor and two Head Warders were present at the time of holding of the T.I. Parade. P.W. 14 who stated that two constables had called him and they had also accompanied him when he went for the purpose of identification also stated to a question of the court that he could not distinguish between a Jail Warder and a constable. P.W. 21 also made the same statement to a question of the court. It hence appears more probable that the witnesses had mistaken Jail Warders as Constables and that no police constables were present at the time of identification.
15. Because of the conclusions reached, I do not find any merit in this revision. I also do not find any justification for reduction of the sentence of the petitioner No. 2 only because his identification in respect of transactions at some place has not been established.
16. In the result, the revision is dismissed.