ORDER K.N. Srivastava, J. - This is an appeal against the judgment and order passed by Sri Kailash Nath Endley, Temporary Sessions judge, jaunpur, convicting Jalaluddin (Appellant) u/s 409 IPC and 465. IPC and sentencing him to two years'. RI coupled with a fine of Rs. 100/- under the first count and in default of payment of fine to RI for one month and sentencing him to one year's RI under the second count coupled with a fine of Rs. 50/- and in default of payment of fine to further RI for 15 days. All the sentences except the sentences which were passed in default of payment of fine were ordered to run concurrently. 2. The facts giving rise to this appeal are as follows: Jalaluddin (Appellant) was a Branch Post Master of Branch Pest Office Narhan, Police Station Kerakat district Jaunpur. Ram Kumar, the husband of Smt. Naujadia sent a Money Order for Rs. 30/- in the name of his son Saltu Mallah. This Money Order was received at Narhan Post Office by the Appellant. Instead of making the payment of the money order to Saltu the Appellant committed criminal breach of trust of the same and in order to show that the amount was paid to the claimant he forged certain entries in the relevant register. The Appellant is alleged to have put his own thumb impression on the receipt alleging that it was that of Smt. Naujadia. Later on when Ram Kumar returned to his village he enquired from his wife and she told him that the aforesaid money order was not received by her. He made a complaint to the postal authorities. The Inspector of Post Offices made an enquiry and on the basis of his enquiry a case was registered against the Appellant. The police investigated the case and after completing the investigation challenged the Appellant. In the trial court the Appellant was asked to give a specimen of his thumb impression for comparison with the disputed thumb impression. The Appellant refused to do so. The trial court directed the Head Constable attached to his court to forcibly take the thumb impression of the Appellant. As ordered by the trial court, the thumb impression of the Appellant was forcibly taken. It was then sent for comparison to the Finger Print Expert. The Appellant refused to do so. The trial court directed the Head Constable attached to his court to forcibly take the thumb impression of the Appellant. As ordered by the trial court, the thumb impression of the Appellant was forcibly taken. It was then sent for comparison to the Finger Print Expert. He reported that the disputed and the specimen thumb impressions were of one and the same person. After trial the Appellant was convicted and sentenced as stated above. Being dissatisfied he has come in appeal to this Court. 3. The Appellant denied the charge and pleaded not guilty. He stated that the amount of the money order was paid to Smt, Naujadia. 4. In support of its case the prosecution examined B.P. Roy, Inspector of Post Offices, Smt. Naujadia, Sheo Bhikh and certain other witnesses whose statements are more or less of a formal nature. The Appellant did not lead any evidence in his defence. 5. The Learned Counsel for the Appellant argued that Suit. Naujadia stated in the trial court that she received the money order and her statement was corroborated by the statement of Sheo Bhikh and therefore, the trial court erred in convicting and sentencing the Appellant. Smt. Naujadia did not support the prosecution cast. The learned State Counsel then made an application that Smt. Naujadia was suppressing the truth and he be allowed; to put questions to her in the nature of cross examination. This application was allowed. In her cross-examination the Stale counsel confronted Smt. Naujadia with the statement which she had made in the court of the committing Magistrate. In the court of the committing magistrate Smt. Naujadia stated that she had not received the amount of money order. Her entire statement was read over to her and then her attention was drawn to the specific portions of the statement and she was asked to explain as to why she stated in the court of the committing magistrate that she had not received the amount of money order. Smt. Naujadia stated that her statement was recorded at the dictation of the Inspector of Post Offices and the Investigating Officer and she was made to sign the same. Smt. Naujadia stated that her statement was recorded at the dictation of the Inspector of Post Offices and the Investigating Officer and she was made to sign the same. The Learned Counsel for the Appellant argued that the trial court did not draw the attention of the accused to the fact that the aforesaid statement of Smt. Naujadia was being intended to be used as substantive evidence u/s 288 Code of Criminal Procedure and therefore, the aforesaid statement (marked Ex. 37) should not have been relied upon by the trial court. 6. In the interest of justice and fair-play an accused person should be informed that the statement of a witness recorded by the committing magistrate was intended to be used as a substantive evidence against him u/s 288 of the Code of Criminal Procedure so that he might get an opportunity to meet the same and to show to the court that the statement was not true and correct. In the instant case no such notice was given to the Appellant at the time when the statement of Smt. Naujadia was admitted in evidence u/s 288 Code of Criminal Procedure. 7. A perusal of the statement of the accused recorded u/s 342 Code of Criminal Procedure would show that specific question was put to him that what he had to say about Ex. Ka 37, the statement of Smt. Naujadia which she had made in the court of the committing Magistrate. Thus the attention of the witness was drawn to this piece of evidence before the Appellant entered into his defence. In my opinion, a plain reading of Section 288 Code of Criminal Procedure would show that there is no provision for a notice to the accused before admitting any statement u/s 288 Code of Criminal Procedure. But in the interest of justice and fair play it has been held in a number of cases that such a notice to the accused was necessary. This notice can even be given to the accused during his statement u/s 342 Code of Criminal Procedure. This view of mine finds support from the following observations made by the Supreme Court in Periyasamy Vs. This notice can even be given to the accused during his statement u/s 342 Code of Criminal Procedure. This view of mine finds support from the following observations made by the Supreme Court in Periyasamy Vs. State of Madras, AIR 1967 SC 1027 It maybe stated that it is highly desirable that the court should, before the transfer of the earlier statement to the record of the Sessions case u/s 288, indicate in a brief order why the earlier deposition was being transferred to the record of the trial. This will make it quite clear to the accused that the earlier statement is likely to be used as substantive evidence against him. If the matter had rested with the use of the earlier statement without this notice to the accused, we would have found it difficult to rely upon the earlier deposition. We find, however, that Priyasami was questioned with reference to the statement of Pappayee made before the committing magistrate which, the Judge informed him, was marked u/s 288 of the Code of Criminal Procedure and he was asked what he had to say about it. Therefore, although the technical requirement of the section, namely, that an order should be parsed to indicate that the statement is transferred so as to be read as substantive evidence, was not complied with, there does not appear to be any substantial departure from the requirements of law. In the instant case, there was, therefore, a substantial compliance of the law with regard to notice to the Appellant. The above argument has, therefore, no force in it. 8. It was next argued that the thumb impression of the Appellant was forcibly taken and therefore, the comparison of the disputed thumb impression with the thumb impression of the Appellant which was forcibly taken was not permissible under law. In this regard the following observation by the trial court in its judgment can be read with advantage: Since Jalaluddin refused to give thumb impression I directed the head-constable attached to this Court to obtain the specimen signature of Jalaluddin, accused, in my presence. The specimen thumb impressions taken in my presence are Ex. Ka 5. The above observation by the trial court leaves no room for doubt that the thumb impression of Jalaluddin (Appellant) was forcibly taken by the head-constable by the order of the trial court. The specimen thumb impressions taken in my presence are Ex. Ka 5. The above observation by the trial court leaves no room for doubt that the thumb impression of Jalaluddin (Appellant) was forcibly taken by the head-constable by the order of the trial court. An accused person cannot be forced to make a statement against him or to do an act which might be prejudicial to his defence case. A thumb impression or a signature given by an accused person voluntarily and with free and sweet-will can be used for comparison with the disputed signature or thumb mark and that can very well be used in evidence. But, certainly an accused person cannot be compelled or forced to give a thumb impression. The taking of the thumb impression of accused person forcibly in a court would give rise to serious complications. Instances may not be wanting where a law court can be turned into an arena. This will adversely affect the dignity and decorum of a court because if an accused refuses to give his thumb impression and by the order of the court his thumb impression is forcibly taken the same may give rise to scuffle or even a fight between the accused persons and the staff of the court. 9. The learned Government Advocate contended that u/s 73 of the Evidence Act a court is empowered to take the specimen signature, writing or, thumb mark of a person for purposes of comparison. This section does empower a law court to order an accused to give his thumb impression, handwriting or signature for comparison. If an accused person refuses to comply with the order of the court a presumption can be drawn u/s 114 of the Evidence Act, but certainly force cannot be used to compel an accused to give his thumb impression or his signature or specimen handwriting. In support of his argument the learned Assistant Government Advocate relied on the case--State of Bombay v. Kathi Kalu Oghad 1961 AWR 736 SC. In this case the question which arose for determination was as to whether ordering an accused person by a court to give his thumb impressions or impressions of foot or palm or fingers or specimen writings or showing the body by way of identification was hit by Article 20(3) of the Constitution of India. The question was decided in the negative. The question was decided in the negative. The question which arises in the instant case was not subject of decision in the aforesaid Supreme Court case. 10. Ordering an accused person to give his thumb impression, specimen writing or to show a part of his body is one thing and to force him to do the same is altogether different. A law court is empowered to order an accused person to comply with the requirements of Section 73 of the Evidence Act, but certainly he cannot be compelled to do so. In this view of mine I am supported by the observation made In Ram Swarup Vs. The State, AIR 1958 All 119 : An order directing an accused to furnish his specimen writing u/s 73, Evidence Act, is not hit by the provisions of Article 20, Clause (3) of the Constitution. The accused cannot, therefore, refuse to give the specimen writing when ordered by the Court to give it. If he does refuse the Court can legally draw a presumption against him under any other provision of law. It will not amount to compelling the accused to be a witness against himself. The court cannot order that the thumb impressions of an accused person be forcibly taken when he refuses to give specimen thumb impression. As observed earlier, there is not the least doubt that the specimen signature of Jalaluddin (Appellant) was taken by the trial court, forcibly. Such a thumb impression should not have been taken into consideration in deciding the question as to whether the Appellant was guilty of the offence. 11. I am, therefore, not inclined to take the report of the Finger Print Expert into consideration. 12. The evidence of Smt. Naujadia was believed by the trial Court. The Learned Counsel for the Appellant as not able to show anything on account of which the statement of Smt, Naujadia recorded by the committing magistrate could be rejected. The statement which Smt. Naujadia made in the court of the committing magistrate and which was marked by the trial court as Ex. Ka 37 was true and correct. This statement is also corroborated by the other facts and circumstances of the case. The Learned Counsel for the Appellant relied on the statement of Sheo Bhikh. He stated that he worte the receipt but the money was not paid to Smt, Naujadia in his presence. Ka 37 was true and correct. This statement is also corroborated by the other facts and circumstances of the case. The Learned Counsel for the Appellant relied on the statement of Sheo Bhikh. He stated that he worte the receipt but the money was not paid to Smt, Naujadia in his presence. It is true that he stated that the Appellant was then holding Rs. 30/- in his hand, but that would not go to show that the amount was paid to Smt. Naujadia. Taking into consideration all the facts and circumstances I am, therefore, of the opinion that the Appellant committed the offence Under Sections 409 IPC and 465 IPC. The thumb impression which the Appellant obtained on the register was certainly not of Smt. Naujadia. He made the entry in the register. He is, therefore, clearly guilty u/s 465 IPC. The Appellant admitted to have received the money order of Rs, 30/- . He did not pay this amount to Smt. Naujadia and committed criminal breach of trust of the same. 13. It was next argued that the sentence awarded to the Appellant erred towards the side of severity. I do not think the sentence awarded to the Appellant is excessive. 14. The appeal has, therefore, no force in it. The appeal is hereby dismissed. The Appellant who; is on bail shall be taken into custody to serve the sentence awarded to him.