Shyam Kishore Lal v. State — 1956 DIGILAW 363 (ALL)

JUDGMENT H.P. Asthana, J. - These are two connected appeals from the judgment of the learned Additional Sessions Judge, Banaras, convicting Shyam Kishore Lal u/s 467 and 468 IPC and sentencing him to 4 years rigorous imprisonment on each count which sentences were to run concurrently, and Prem Chand Sharma u/s 471 IPC read with Section 467 IPC and sentencing him to 4 year's rigorous imprisonment. Cr. A. No. 1624 of 1954 has been filed by Shyam Kishore and CrA No. 223 of 1955 by Prem Chandra Sharma against their conviction and sentence. 2. It appears that Shyam Kishore Lal was employed as the Encumbered Estates clerk in the Collector's office, Banaras, from 7-7-1941 to 18-11-1957. On 18-11-1951 he handed over charge to Doodh Nath Lal who became the Encumbered Estates clerk. On 141-1952 Prem Chandra Sharma presented the voucher Ex. I to the Despatch clerk, Krishna Prasad (P.W.5) of the Treasury office, Banaras, for payment. This voucher is No. 32 and had been prepared from the cheque book No. 134 in the name of Sagarmal as payee for refund of a sum of Rs. 11,967/9/ - as decretal amount from the personal ledger account of the Encumbered Estates case No. 50 of 1942, Sheikh Abdul Karim v. Abdul Hamid and Ors.. It purported to have been prepared on 17-12-1951 by Doodh Nath Lal who was the Encumbered Estates clerk on that date, and signed by Sri B.S. Seth who was the Additional Collector and in charge of that estate. It also purported to have been signed by one Har Narain Lal, Vakil who identified and attested the signature of Sagarmal purporting to be on the revenue stamp athxed on it. After examination Krishna Prasad suspected that it was a forged document and he, therefore, asked Prem Chandra Sharma to come after a short time. In the meantime Krishna Prasad took the voucher to P.W.4 Doodh Nath Lal, who was then the Encumbered Estates clerk, to verify if the initials 'D.L.' on it were his and whether it had been prepared by him. Doodh Nath Lal denied that he had prepared the voucher or had put his initials on it. In the meantime Krishna Prasad took the voucher to P.W.4 Doodh Nath Lal, who was then the Encumbered Estates clerk, to verify if the initials 'D.L.' on it were his and whether it had been prepared by him. Doodh Nath Lal denied that he had prepared the voucher or had put his initials on it. Thereafter Krishna Prasad and Doodh Nath Lal went to the Office Superintendent Sri Suraj Bali Lal and informed him about the voucher Ex.I. He advised Krishna Prasad to get Prem Chandra Sharma caught when he returned to take back the cheque. Krishna Prasad then went to the Treasury Officer and told him about the voucher Ex. I, which appeared to be forged. The Treasury Officer, Sri Vishwanath Prasad (P.W.1) sent for Doodh Nath Lal to enquire from him if he had prepared the voucher and had issued it. He denied it. The Treasury Officer then sent for Har Narain Lal Vakil whose writing and signature also appeared on the voucher, and enquired from him if he had written and signed it. He too denied the writing and the signature. Krishna Prasad left the cheque Ex. I with the Treasury and returned to the counter and there waited for Prem Chandra Sharma who had presented it to him. Prem Chandra Sharma came there after some time and demanded the payment of the voucher. Krishna Prasad then asked him to accompany him to the Treasury Officer, and then both of them went to the Treasury Officer who enquired the name and address of Prem Chandra Sharma and then took him to the court. of Sri S.V. Isaacs, Addl. District Magistrate, Banaras. Sri Isaacs obtained a report about the occurrence from the Treasury Officer and then handed Prem Chandra Sharma to the police for necessary investigation. 3. The cheque or voucher (Ex. I) was sent to the handwriting expert P.W.3 Sri Shyam Narain, for examination and comparison with the admitted writing of Shyam Kishore Lal, Har Narain Lal, Doodh Nath La), Prem Chandra Sharma and Chauthmal. He was of the opinion that the writing enclosed in green ink on the voucher Ex. I was of the (accused Shyam Kishore Lal. He was not able to give any opinion with regard 10 the writing of the revenue stamp because he was of the opinion that it was insufficient for comparison. He was of the opinion that the writing enclosed in green ink on the voucher Ex. I was of the (accused Shyam Kishore Lal. He was not able to give any opinion with regard 10 the writing of the revenue stamp because he was of the opinion that it was insufficient for comparison. After the necessary investigation the accused were sent up for trial. 4. The accused Shyam Kishore Lal stated that he had been falsely implicated in the case merely on departmental grounds and he was the Encumbered Estates clerk before Doodhnath Lal. He denied that the voucher Ex. I had been prepared by him or that any portion of the writing on it was his. Prem Chandra Sharma denied that he presented this voucher to Krishna Prasad for getting it passed and cashed. He stated that he was standing outside on the verandah of the Treasury office and was waiting for a relation of his when Krishna Prasad came there and took him to the Treasury Officer, and when he enquired from him as to why he was being taken there Krishna Prasad told him that he should not get perturbed and that he would know the result very soon. In short, his defence was that he was taken before the Treasury Officer under some misconception because Krishna Prasad was not sure as to who had presented the cheque Ex. I before him. 5. The evidence against the accused Shyam Kishore Lal is of P.W.3 Sri Shyam Narain, Handwriting Expert, and two witnesses namely, P.W.7 J.W. Gupta and P.W.6 Mohammad Salim. The evidence of these two witnesses is that on the day of occurrence they had seen the accused Shyam Kishore Lal loitering in the Collectorate compound near the Treasury Office. P.W.6 Mohammad Salim further stated that he enquired from the accused Shyam Kishore Lal about his presence near the Treasury Office on the day of the occurrence and he told him that he had come there to get a certain cheque passed and cashed. Besides these three witness Sri B.S. Seth, Addl. Collector, Doodh Nath Lal, and Har Narain Lal were also examined as prosecution witnesses. They denied that the cheque or voucher Ex. I bore their signature. Har Narain Lal also denied that the words "Identified and attested the signature of Sagar Mal" were written by him. Besides these three witness Sri B.S. Seth, Addl. Collector, Doodh Nath Lal, and Har Narain Lal were also examined as prosecution witnesses. They denied that the cheque or voucher Ex. I bore their signature. Har Narain Lal also denied that the words "Identified and attested the signature of Sagar Mal" were written by him. Krishna Prasad and the Treasury Officer Sri Vishwanath Prasad were also examined as prosecution witnesses in the case. Krishna Prasad was examined in order to prove that the cheque Ex. I was presented to him by the accused Prem Chandra Sharma and that he suspected that it was forged after examining it and comparing it with the ledger account of the case No. 50 of 1942. Sri Vishwa Nath Prasad, Treasury Officer, deposed that the cheque was brought to him by Krishna and then the sent for Doodh Nath Lal and Bar Narain Vakil and enquired from them if the signature on the cheque were theirs and they denied it. He also stated that he verified from Sri B.S. Seth about his signature on it and he too denied it. There are also some formal witnesses in the case but it is not necessary to consider their evidence. The accused did not produce any evidence in their defence. 6. The learned Sessions Judge on a consideration of the evidence was satisfied that the cheque Ex. I had been forged by the accused Shyam Kishore Lal and that it was presented by the accused Prem Chandra Sharma in the Treasury office on 14-1-1952 for being cashed. His finding that it was forged cheque was based mainly on the evidence of P.W.3 Sri Shyam Narain, Handwriting Expert, and to some extent also on the evidence of P.Ws. 6 and 7 which, according to his opinion, corroborated the statement of Sri Shyam Narain. He, there fore, convicted and sentenced them as above. 7. It has been contended before me on behalf of the accused Shyam Kishore Lal that the only evidence against him was of Sri Shyam Narain, Handwriting Expert, which too was unreliable, and his conviction could not be based merely on this evidence. In support of this contention he has relied on several decisions which are of this Courts as well as Calcutta and Madras High Court. In support of this contention he has relied on several decisions which are of this Courts as well as Calcutta and Madras High Court. It was held in all these decisions that the conviction for forgery merely on the evidence of a handwriting expert, unsupported by any independent evidence, was unsafe. 8. In the case of Sri Kant v. King Emperor 2 A.L.J.R. 444 the accused Sri Kant, who was a clerk in the Agra Branch of the Alliance Bank of Simla, was prosecuted under Sections. 465 and 467 IPC for forging a certain draft and its forwarding letter which were presented and cashed at Jubbulpore. The evidence against this accused was that of the Handwriting Expert Sri Charles Hardless, who on a comparison of the above documents with the specimen writing of the accused taken before the court, was of the opinion that the draft and the forwarding letter were in the writing of the accused. The learned Sessions Judge also compared the disputed documents with the specimen writing of the accused taken before him and he too was of the opinion that they appeared to have been written by one and the same person. It was on the above evidence that Sri Kant was convicted u/s Section 465 and 467 IPC. It was held in this case by a Division Bench of this Court that it was very unsafe to base a conviction upon the opinion of an expert in handwriting as a general rule, unless there was further evidence on the record that besides the accused none else could have written the forged document. In the result the conviction and sentence of Sri Kant was set aside. 9. The next case is of Kali Charan Mukerji v. Emperor 6 A.L.J.R. 184. In this case the accused Kalicharan Mukerji was prosecuted for writing a threatening letter to the Governor-General of India. The accused denied that the disputed letter had been written by him. The only evidence against him was of Charles Hardless, Government Handwriting Expert, who found after an examination of this letter along with certain admitted writings of Kalicharan Mukerji that the disputed letter had been written by him. He was convicted by the trial court. The conviction was set aside by a Division Bench of this Court. The only evidence against him was of Charles Hardless, Government Handwriting Expert, who found after an examination of this letter along with certain admitted writings of Kalicharan Mukerji that the disputed letter had been written by him. He was convicted by the trial court. The conviction was set aside by a Division Bench of this Court. It was held that to base a conviction on the evidence of an expert in handwriting as a general rule was very unsafe; that there might be cases in which the handwriting was of such a peculiar character that the conclusion as to the identity of the writer was irresistible and that the deposition of the Government Expert was that having regard to the movement, execution, style, direction, curve and penpressure letters the writing of the exhibits resembled the admitted hand-writing of the accused. It was held that evidence was not enough to prove beyond reasonable doubt that the accused was the writer of the letter and the conviction was set aside. 10. In Ramanlal Rathi Vs. The State, AIR 1951 Cal 305 it was held that the opinion of a handwriting expert based on comparison of handwriting was of little value and it would be very unsafe to convict the accused on the basis of such evidence. 11. In Sudhindra Nath Dutt Vs. The King, AIR 1952 Cal 422 it was held by a Division Bench of the Calcutta High Court that it was a rule of law that it was extremely unsafe to base a conviction upon the opinion of handwriting expert without substantial corroboration, because it was well known that a comparison of handwriting as a mode of proof was always hazardous and inconclusive unless it was corroborated by other evidence. 12. In the case of B. Venkata Row, Appellant I.L.R 36 Mad 159 it was held by a Division Bench of the Madras High Court that an accused should not ordinarily be convicted of forgery upon the uncorroborated testimony of a handwriting expert. It may be mentioned here that in this case the evidence against the Appellant was of the Government Handwriting Expert Charles Hardless and it was not accepted as sufficient for the conviction of the Appellant. While discussing the value of the evidence of a handwriting expert their Lordships quoted the following passage from Dr. It may be mentioned here that in this case the evidence against the Appellant was of the Government Handwriting Expert Charles Hardless and it was not accepted as sufficient for the conviction of the Appellant. While discussing the value of the evidence of a handwriting expert their Lordships quoted the following passage from Dr. Lawson's work on the "Law of expert opinion and evidence", which had been quoted in the case of Lalta Prasad v. Emperor by Pandit Sundar Lal, Assistant Judicial Commissioner of Oudh in 11 Cr.L.J., 114: The evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight. It must be confessed, however, that it is of the lowest order of evidence or of the most unsatisfactory character. We believe that in this opinion experienced laymen unite with the Members of the legal profession. Of all kinds of evidence admitted in a Court this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence. 13. Sarkar in his Law of Evidence (ninth edition) has expressed the following opinion on the question of expert evidence at page 445: Expert opinion must always be received with great caution, but perhaps none so with more caution than the opinions of handwriting experts. These gentlemen stand in an impregnable fortress of their own and invariably give emphatic opinions. They try to create an impression by talking glibly of pea-pressure, pen scope, pen-pause, pen-presentation, pen-lift, hand movement, irregular movement, angle of pen, retouchings, joinings, change of pivot, under stroke, cross bar and numerous other things not easily intelligible to laymen. Almost all of them have a favourite theory of their own which they tend to apply with a firm conviction. They are a type of remunerated witnesses and like others of that class have an unconscious bias in favour of the party calling them Moreover, their opinions are previously ascertained and they are brought only when they are favourable to the party calling. The fact that they know beforehand why they have been called and what the party calling wishes to be proved, detracts to a great extent from the weight to be given to their opinion. Some handwriting experts do not even hesitate to claim infallibility. 14. The fact that they know beforehand why they have been called and what the party calling wishes to be proved, detracts to a great extent from the weight to be given to their opinion. Some handwriting experts do not even hesitate to claim infallibility. 14. It will thus appeals that it has been the settled view of not only this High Court but also other High Courts that it will not be safe to base a conviction on the uncorroborated testimony of a handwriting expert. 15. It has next been contended on behalf of Shyam Kishore Lal that there is nothing on the record to show as to how he came in possession of the book No. 134 from which the voucher or cheque Ex. I is said to have been prepared by him. There is nothing on the record to show who issued the Book No. 134, when it was issued, to whom it was issued and on whose requisition. Doodh Nath Lal (P.W.4) or Sri B.S. Seth (P.W.2) were not able to say anything on this point. Doodh Nath Lal in his statement said that the Form Keeper used to issue the cheque book to the court which demanded it when required; that the cheque book was issued under the authority of that court which demanded it from the Form Keeper; that a record was maintained about the issue of the cheque books and that a fresh cheque book was issued only after the former one was exhausted and the counterfoils had been consigned to the Treasury Record Room. It also appears from his evidence that the rule was that the cheque book issued should be in the custody of the presiding officer. He admitted that the cheque book was never kept with him during his tenure of office as Encumbered Estates Clerk and that the cheque book ought to have been kept by the presiding officer in safe custody according to the rules in the Financial Handbook. Rule 57 of the Financial Handbook, Volume V, Part I, says that Each cheque book must be kept under lock and key in the personal custody of the drawing officer, who, when relieved, should take a receipt for the correct number of cheques made over to the. Rule 57 of the Financial Handbook, Volume V, Part I, says that Each cheque book must be kept under lock and key in the personal custody of the drawing officer, who, when relieved, should take a receipt for the correct number of cheques made over to the. relieving officer; and the loss of a cheque book or blank cheque forms should be notified promptly to the Treasury Officer with whom the disbursing officer concerned has a drawing account." It will thus appear that the cheque book No. 134 from which the voucher Ex. I is said to have been prepared should have been in the custody of the presiding officer Sri B.S. Seth or his predecessor. There can be no doubt that the presiding officer was negligent in not complying with Rule 57 and keeping the cheque book in his custody and this negligence on his part has facilitated the commission of this offence. 16. Coming now to the evidence of P.W.3 Sri Shyam Narain Handwriting Expect, it appears that it is unsatisfactory. It may be mentioned here that Sri Shyam Narain is employed as Dy. S.P. in the Criminal Investigation Department of U.P. Government. Admittedly he has not passed any examination in comparison of handwriting nor has taken any training in any institution or college fox that purpose. His evidence shows that he had some training in his own department in the comparison of handwriting and had examined about 100 or 200 cases of questioned documents and had thus become an expert. It further appears from his evidence that his opinion that the disputed writing on Ex. I is that of the accused Shyam Kishore Lal is based on a comparison of shape and design of this writing with certain admitted writings of this accused. He admitted in his cross-examination that he had not noted the co-ordination of the letters, the movement, the pen-pressure, the pen-presentation and the alignment and the reason given by him for it was that he did not consider it necessary. He, however, admitted that these were important matters to be taken into consideration in order to determine whether a particular writing was of a particular person and were generally taken into consideration by every examiner of questioned documents. He further admitted that by examining merely the shape and design no expert could give his opinion about any writing. He, however, admitted that these were important matters to be taken into consideration in order to determine whether a particular writing was of a particular person and were generally taken into consideration by every examiner of questioned documents. He further admitted that by examining merely the shape and design no expert could give his opinion about any writing. He also admitted that he did not use any instrument for measuring the height, the width and the spacing of the letters in the different writings which were sent to him for comparison. As regards the variations which were found between the writing on Ex. I and the admitted writings, he said that these variations were natural, though he admitted in his cross-examination that he had not made any note of the natural variations in his report. I have also examined the date contained in Ex. D-2 on which his opinion was based, but I do not find anything in this document which can be said to support the opinion arrived at by this witness. It may be mentioned here that in the cases cited above the opinion of no less an Expert than Charles Hardless, who has been the Government Handwriting Expert for a long time and has examined numerous documents, and who had given detailed reasons for arriving at his conclusion was not considered satisfactory for the conviction of the accused in those cases. In the circumstances, the opinion of Sri Shyam Narain which is not based on any scientific examination of the documents but merely on a comparison of shape and design of the various writings, can hardly be considered reliable and sufficient. No satisfactory explanation has been given as to why the disputed documents were not sent to an Expert not connected with the Police Department. 17. As regards the evidence of P.W.6 Mohammad Salim and P.W.7 J.W. Gupta, I am of opinion that it is hardly of any value. These two witnesses deposed that they had seen the accused Shyam Kishore Lal in the Collectorate compound on the day of the occurrence. No doubt Mohammad Salim in his statement said that this accused on being questioned about his presence there said that he had come to get a certain cheque passed and cashed. These two witnesses deposed that they had seen the accused Shyam Kishore Lal in the Collectorate compound on the day of the occurrence. No doubt Mohammad Salim in his statement said that this accused on being questioned about his presence there said that he had come to get a certain cheque passed and cashed. He, however did not make any such statement when he was questioned by the police during the investigation and, in the circumstances, it appears somewhat improbable if he really made any such statement to this witness. 18. In my opinion the evidence on the record is not sufficient for the conviction of the accused Shyam Kishore Lal u/s 467 and 463 IPC. The prosecution could certainly have produced evidence that the cheque book was in possession of this accused and it was he alone who could have forged the voucher Ex. I, but no such evidence was produced by the prosecution for reasons best known to it. In the circumstances, I am of opinion that the conviction of this accused u/s 467 and 468 IPC cannot be maintained. 19. As regards the accused Prem Chandra Sharma, there is satisfactory evidence on the record that he was the person who had presented the voucher Ex. I in the Treasury Office, Banaras, on 14-1-1952 for being passed and cashed. The evidence on this point is of P.W.5 Krishna Prasad who was the Treasury clerk at that time. There does not appear any satisfactory reason why he has falsely implicated this accused when the voucher was presented by someone else. It has not been alleged by this accused that there was any enmity between him and Krishna Prasad. It also appears that this accused was taken before the Treasury Officer Sri Vishwanath Prasad. If he had not presented the voucher Ex. I there does not appear any reason why he should have been produced before the Treasury officer. I am satisfied from the prosecution evidence that Prem Chandra Sharma presented the voucher Ex. I in the Treasury Office for being passed and cashed. There is no doubt that this voucher was not a genuine voucher but a forged one though there is no satisfactory evidence as to who were the persons who had forged it. Sri B.S. Seth, Addl. District Magistrate, and Doodh Nath Lal, Encumbered Estates clerk, denied their signatures on this voucher. There is no doubt that this voucher was not a genuine voucher but a forged one though there is no satisfactory evidence as to who were the persons who had forged it. Sri B.S. Seth, Addl. District Magistrate, and Doodh Nath Lal, Encumbered Estates clerk, denied their signatures on this voucher. There is no evidence on behalf of this accused that Sri B.S. Seth and Doodh Nath Lal signed this voucher in his presence or that the signatures on it were theirs. Sri Har Narain Vakil (P.W.9) is a practising lawyer in the Civil Courts, Banaras. He too denied that he signed the voucher Ex. I or wrote the words "Identified and attested the signature of Sagarmal" above his signature. There is no evidence to the contrary. There does not appear any satisfactory reason why Sri B.S. Seth, Doodh Nath Lal and Sri Har Narain Lal Vakil have made false statements if they really signed the voucher Ex. I and identified Sagarmal who purpose to be the payee of this voucher. I am, therefore, satisfied from the prosecution evidence that the voucher Ex. I is a forged document and that it was presented by the accused Prem Chandra Sharma with the know edge that it was a forged document for the purpose of being cashed The offence u/s 471 IPC has, therefore, been satisfactorily proved against him and he has been lightly convicted. 20. The result is that the appeal of Shyam Kishore Lal is allowed and his conviction and sentence under Sections 467 and 458 IPC is set aside. As he is on tail he need not surrender; his bail bonds are discharged. The appeal of Prem Chandra Sharma is dismissed and his conviction u/s 171/467 IPC and sentence of 4 years' rigorous imprisonment is maintained. As he is on bail he shall surrender to it and serve out his sentence.