Patna High Court
Ratindra Nath vs State Of Bihar on 10 March, 2014
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.21 of 2000
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Ratindra Nath Basu Rai, son of Late R.C.Basu Roy, resident of village-Sanara,
P.S.New Barrackpur District 24 Parganas(North) at present resident of 48/163
Jyotish Roy Road, P.S. Behala, Calcutta-700-053
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Gouranga Chatterjee, Advocate.
For the Respondent/s : Mr. Bipin Kumar Sinha, Standing Counsel CBI.
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CORAM: HONOURABLE MR. JUSTICE DHARNIDHAR JHA
ORAL JUDGMENT
Date: 10-03-2014 The appellant was tried by the learned Special Judge, CBI, South Bihar, Patna in Special Case No.68 of 1986 arising out of R.C.Case No.33 of 1986 and by judgment dated 20.12.1999, was found guilty of committing offence under Section 5(1)(c) and 5(1)(d) punishable under Section 5(2) of the Prevention of Corruption Act, 1947 as also offences under Sections 409 and 467 of the IPC. After being heard on sentence, he was directed to suffer rigorous imprisonment for two years on each of the above three counts. The sentences were directed to run concurrently.
2. The facts admitted and those appearing from evidence appear that the National Aluminum Corporation Limited(NALCO) had awarded contract to construct 'A' type quarters for its NALCO Nagar, Orissa to M/S East India Construction Company, Chass, Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 2 Dhanbad. It appears from the evidence of P.W.7 and other witnesses, like, P.W.10 N.S.Rao that the M/S East India Construction Company, Chass, Dhanabad( 'construction company' for short) had been awarded the contract and letter of intent was issued in its favour and they were required to enter into the agreement by furnishing a bank guarantee. It was alleged that the bank guarantees Exts-11/A to 11/D, were issued by the present appellant after forging it and without observing the rules laid down for issuing the bank guarantees. The further prosecution case was that the contract work was not completed in time and as such NALCO to wrote to the Bokaro Steel City Branch of the Bank of India, which was headed by the present appellant as its Branch Manager on 12.08.1984, the date of issuance of the four bank guarantees of the total value of Rs.5,10,200/-, to extend the term of validity of the bank guarantees. When the letter was received from the NALCO requesting the extension in time of the bank guarantees, it was found that the bank guarantees had never been issued by the bank. The details were sought by the then Branch Manager of the Bank of India, Bokaro Steel City Branch of the bank by letter Ext-3 and other letter, like Ext-3A. The preliminary enquiry by the bank disclosed that the rules had not been followed. There had not been any request from the construction company for issuing the same and without there being any processing for issuing the bank guarantees Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 3 Ext-11/A to 11/D series, the same had been issued by this appellant by forging the documents.
3. The matter was referred for investigation and it appears that after preliminary enquiry, the FIR was drawn up by N.N.Singh, Dy.S.P., CBI, Patna which ultimately ended in the submission of chargesheet. The appellant was tried and was held guilty of committing offences and was accordingly sentenced as has been noted in the very first paragraph of the present judgment.
4. The defence of the appellant was that the bank guarantee was forged and fabricated due to being created by the construction company by forging his signatures as also by fraudulently obtaining the seals of the bank over the document by alluring any peon of the Bank of India by the employees of the construction company as they were very much acquainted with the signatures of the appellant. The further defence was that there was no question of issuing the bank guarantees by the appellant or by his bank, that's, the Bokaro Steel City Branch of Bank of India, as the construction company did not have any account in that branch.
5. Sixteen witnesses were examined including P.W.15 Sri Amar Singh who was the handwriting expert working in the Central Forensic Science Laboratory, Calcutta. P.W.15 compared the specimen signatures of the appellant with those appearing on Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 4 questioned documents as also with some admitted ones and rendered the opinion that the signatures in most of its parts appeared that of this appellant. This is the solitary evidence which has resulted in return of finding of culpability against the appellant that he had committed the offences by forging the documents Ext-11/A to 11/D series and by issuing the same.
6. I was addressed by counsel both for the appellant and also for the Central Bureau of Investigation. Before I embark upon examining the arguments or the evidence, I simply want to refer to the decision rendered in the case of Rabindra Kumar Dey. v. State of Orissa reported in AIR 1977 SC 170 which has discussed the principles of criminal jurisprudence as regards proof of facts or consideration of evidence including the defence evidence in case of defalcation. The reference in that judgment has been made to many other judgments of the Supreme Court as regards the principles of criminal jurisprudence and it has been noted by the Apex Court that even in a case where there is a statutory presumption against an accused, that presumption could be raised only when the offence has been established to the hilt by establishing all the ingredients of the offence and as regards explaining the statutory presumption by the accused, he could very well rely upon some of the admitted facts or could explain that presumption by referring to the evidence of the Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 5 prosecution witnesses itself to tilt the balance of probability in his favour which creates doubt in the prosecution case. The relevant discussion appears in paragraph-6 of the judgment and I am tempted to quote:-
"6. Having regard to the stand taken by the parties, the matter lies within a very narrow compass. So far as the entrustment of Rs. 10,000/- is concerned that it undoubtedly admitted by the appellant, and the only explanation given by him is that he had returned the money to the Nazir after his return from the village Balichandrapur and he had also directed the Nazir not to deposit the money in the treasury. If once the explanation of the accused is disbelieved or proved to be absolutely false, then it is quite natural that he must be presumed to have retained the money with himself for a period of six months .Although the onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it will be difficult for the prosecution to prove the actual mode or manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or the falsity of the explanation given by the accused. In Jaikrishnadas Manohardas Desai v. State of Bombay, (1960) 3 SCR 319 at p. 324 = (AIR 1960 SC 889 at p. 891) this Court observed as follows :
"The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he had dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made."
The Courts below appear to how convicted the appellant on the basis of the decision referred to above and have held that since the explanation given by the appellant was false, an inference of misappropriation could reasonably be drawn against him. This proposition cannot be doubted. But the question is whether the explanation given by the appellant in this case can be said to be absolutely false? Another question that arises is what are the standards to be employed in order to judge the truth or falsity of the version given by the defence? Should the accused prove his case with the same amount of rigour and certainty, as the prosecution is required, to prove a criminal charge, or it is sufficient if the accused puts forward a probable or reasonable explanation which is sufficient to throw doubt on the prosecution case? In our opinion three cardinal principles of criminal jurisprudence are well-settled, namely :
(1)that the onus lies affirmatively on the prosecution to prove Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 6 its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(2)that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (3) that the onus of the prosecution never shifts.
It is true that under Section 105 of the Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused, but this section does not at all indicate the nature and standard of proof required. The Evidence act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court. This aspect of the matter is no longer res integra but is concluded by several authorities of this Court. In Harbhajan Singh v. State of Punjab, (1965) 3 SCR 235 at p. 241 = (AIR 1966 SC 97 at p. 101) this Court observed as follows :
"But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an Exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged is the accused person succeeds "in proving a preponderance of probability." As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt."
The same view was taken in a later case in State of U.P. v. Ram Sarup, (1975) 1 SCR 409 at pp. 416-417 = (AIR 1974 SC 1570 at p. 1576), where this Court observed as follows :
"That is to say an accused may fail to establish affirmatively the existence of circumstances which would bring the case within a Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 7 general exception and yet the facts and circumstances proved by him while discharging the burden under Section 105 of the Evidence Act may be enough to cast a reasonable doubt on the case of the prosecution, in which event he would be entitled to an acquittal. The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in favour of his plea."
7. Now coming to the facts of the case, two witnesses appear very important who were examined by the prosecution in support of the prosecution story that it was this appellant who had forged and fabricated bank guarantees in question which were issued in favour of the construction company for being presented to the NALCO. P.W.6 one of the clerks or Munshi, namely, Faiyaz Ahmad Ansari working in the construction company has stated that he was handling the job of obtaining bank guarantees for the company, i.e., the construction company and used to make rounds of different banks and accordingly, he was called by P.W.7 Ashok Kumar Taneja who was the managing partner of the construction company and was handed over an envelop containing four already typed bank guarantees and was also handed over a sum of Rs.10,204/- in liquid cash kept in an envelop and was asked to go to the present appellant for getting the bank guarantees duly signed and sealed. These facts are not being denied by P.W.7 Ashok Kumar Taneja, the managing partner of the construction company. A careful scanning of the evidence of P.Ws.6 and 7 indicates that not only the bank guarantee Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 8 were already typed but some part of it was also hand-written. P.W.6 has admitted that he did not know who had written the part of the bank guarantees Ext-11/A to 11/D but as I have already noted, those guarantees were typed in the office of the construction company and probably under the supervise of P.W.7 and when P.W.6 arrived at the branch of this appellant, he was asked to sit out and was again called back and handed over the bank guarantees duly signed by this appellant. This fact that the appellant had signed those guarantees has been refuted by the appellant by not only suggesting to those witnesses that that part of the evidence was false but it has also been pointed out to them that they had themselves forged and fabricated the documents including that part of those documents which are said to be the signature of this appellant.
8. The procedure of issuing the bank guarantee has been stated to by P.Ws. 4 and 12 who were the officials of the Bank of India and there is no dispute in it that the unsecured bank guarantees are to be issued only up to the value of Rs.25,000/-. For issuing the bank guarantee of a higher amount, there has to be necessary formalities to be gone through which always included due request from any business firm and that request has to be in writing, accompanied by the condition that the firm or individual must hold a credit account in the bank. There has to be payment of some margin Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 9 money to the tune of at least 40 per cent, which may be increased as per the value of the bank guarantee and this margin money has to be debited from the credit account of the company or the individual and only then the bank guarantee has been issued. Whenever a bank guarantee is issued, necessary entries in the relevant registers and records have to be made and as may appear from the evidence of P.W.4, the DGM, Bank of India, namely, K.S.Sundarsan, monthly balance sheet has to be forwarded to the Regional Office for such issuance of bank guarantee and their status.
9. The appellant was hold up guilty only because those formalities had not been followed. But again the submission was that the question of those formalities being followed or fulfilled arose only when the appellant had really issued those guarantees. The appellant averred that he had not issued the bank guarantees and, as such, there was no need of the appellant to observe the paraphernalia. I have already referred to the evidence of P.Ws.6 and 7. The evidence of these witnesses and this appellant was on the issue as to who had prepared the bank guarantee. There is no dispute with regard to the forging of the documents which were already typed and prepared in all terms, except the signature and seal of the bank, by P.W.7 or by some one under his supervision. Thus, the only allegation which appears against the appellant was that he had put his signatures in Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 10 sufficient form and those signatures were tallied with the specimen signatures of this appellant. P.W.15 Amar Singh, the handwriting expert has indeed stated that the signatures were tallying with the specimen signature of the appellant but in his cross-examination he has also stated that some of the specimen signature were varying from the admitted signatures in some important features.
10. I only want to recall the law on specimen signature and the evidence of an expert. A signature which has been the subject matter of indictment of the present appellant was of two types, one was the initial signature which appears on each of the four documents in the left lower hand corner amidst the seal of the bank and the other is a bit longer signature, still not fully depicting the full name of the appellant, but only a couple of letters, like, R and B with three lines accompanying those letters under them upon which the tally was made and it has been expressed that they tallied with the signatures of the appellant. The signatures were so undiscriptive, they were so short and they were so devoid of details as regards the formation of letters writing style bends and loops of letters that in my considered view, an expert could always be mislead by such samples itself. It is, as such, has been held in many decisions that such shorter or initial signatures if are opined by the expert to be the signatures of an accused, it may always not be safe to accept. If the court excluded the Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 11 evidence of P.W.13 Jai Narain Singh then there is no evidence virtually against the appellant that the signatures indeed were of the appellant. P.W.6 also does not say that he saw the appellant putting his signatures on the document. He has stated that he was asked to sit out and after half hour or so, he was called in and handed over the document. Thus, in my opinion it was not a case in which the charges could be said to be proved.
11. As regards the other part of the charge, the prosecution story as per P.Ws.6 and 7 was that a sum of Rs.10,204/- only was put into the envelop and for being delivered to the appellant. P.W.12 Subhash Chandra Jha one of the officials of the Bank of India and other bank officials who were deposing in the court stated that there was no record of acceptance or payment of above noted amount and as such the appellant was held guilty by the learned trial Judge of coming the offence under Section 409 IPC. I have already referred to some part of the rules which required that the margin money has to be debitted from the current account of the persons or the company in whose favour the bank guarantee has to be issued. The rule does not require that any liquid money has to be paid as margin money. Moreover, two witnesses P.Ws.6 and 7 themselves appear very much part of the forgery of the documents and if their evidence is so readily accepted then some part of the criminal jurisprudence shall suffer Patna High Court CR. APP (SJ) No.21 of 2000 dt.10-03-2014 12 inasmuch as they very well stand in the shoes of an accomplice as regards the forging of the documents. Rule of prudence as laid down by Section 114(b) of the Evidence Act cautious that accomplishes are not worthy of credit unless he is corroborated in material particular. This rule of caution has always to be kept in mind in cases of the present class.
12. In may opinion, the evidence did not concretize the charges to the hilt. There were pitfalls in the prosecution evidence and it was a case in which the accused had successfully demonstrated from the evidence of the prosecution witnesses itself that there could be doubt regarding the forgery or otherwise of the documents and commission of the offences by him of which the appellant was found guilty.
13. In the result, the appeal is allowed. The appellant is acquitted of the charges by giving benefit of doubt. The judgment of conviction and the order of sentence are hereby set aside. The appellant is on bail. He shall stand discharged from the liabilities of the bail bonds.
(Dharnidhar Jha, J) Patna High Court, Dated 10th of March, 2014 Brajesh Kumar/NAFR __ |__| U |__| T