SRIPADA SINAI DUCLO v. STATE — 1975 DIGILAW 43 (BOM)

JUDGEMENT 1. This judgement will dispose of both these appeals as the two appeals arise out of one and the same incident. The case has arisen out of a complaint filed by Jeronimo D' Souza (who will hereinafter be referred to as "the complainant") against Duclo (who will hereinafter be referred to as "the accused"). 2. The accused in this case has been convicted on 21-6-1971 under Section 313 read with Section 421 No. 5 and Section 55 No. 4 of the Portuguese Penal Code, by the Court of Mapuca and has been sentenced to 8 years of imprisonment. He has beep also sentenced to pay an amount of 21.146/00 (escudos) convertible into rupees at the rate of 6 escudos per rupee as compensation for the losses suffered by the complainant. 3. The case of the prosecution may be briefly narrated as under : In the year 1959, the complainant was working as the Head of the Post and Telegraph Office at Mapuca. The accused was working in the said Office under the complainant. One Laad was in charge of receiving all telegraphic messages to be transmitted and the charges payable thereon. The daily receipts of the said charges used to be handed over to the complainant who was the head of the office. According to the instructions of the complainant, Laad was asked to hand over the money to the accused instead of directly giving it to the complainant. At a later stage, sometime in October, 1959, the complainant entrusted the accused with receiving directly from the public, the charges in respect of the telegrams. Such charges received used to be entered into a book which was bearing the number 817. The total amount received during a day used to be entered into another book bearing number 853. The accused used to hand over the amount collected by him to the complainant as per the entries made in book 853 at the end of the day. The complainant had another book privately kept by him, wherein he used to note down the amounts received by him from the accused. The complainant suddenly started noticing that there were some shortages and that he had to make good those shortages out of his own pocket. He then discovered that the shortages were due to some foul tricks played by the accused. The complainant suddenly started noticing that there were some shortages and that he had to make good those shortages out of his own pocket. He then discovered that the shortages were due to some foul tricks played by the accused. The accused, it was alleged, whilst entering the amount in the books used to enter the amount of a lower figure and after the cash was handed over to the complainant used to increase the figure. This was discovered sometime on the 12th August, 1960. The difference between the amount actually received by the accused and the amount actually handed over by him to the complainant was alleged to be 21000/00 (escudos). 4. This case was investigated as per the Portuguese Criminal Procedure Code. The accused was charged under Section 313 read with Sections 437 and 421 of the Portuguese Penal Code. The provisions of Section 313 of the Portuguese Penal Code correspond more or less to the provisions of Section 409 of the I.P.C. and we will be concerned only with Section 313 of the Portuguese Penal Code as it is under that Section that finally the accused has been convicted by the trial Court. 5. The accused has denied having committed criminal breach of trust in respect of any amount given to him or having made any falsification of the accounts. As the offence was investigated under the Portuguese Criminal P. Code, the procedure followed by the trial Court was the one laid down by that Code. It was argued by Shri Kolwalkar, learned advocate appearing for the accused, that although the procedure followed could be the one laid down by the Portuguese Criminal Procedure Code, the Indian Evidence Act was applicable and the trial Court should have taken into consideration the provisions of the Evidence Act whilst deciding the matter. The contention of Shri Kolwalkar has also been that there is no evidence at all to sustain the conviction of the accused and as such he should be acquitted. 6. Turning to the evidence on record, I find that besides the complainant four witnesses were examined. The complainant stated that he had entrusted the accused with receiving money in respect of the telegram charges. The accused used to enter the charges received in book No. 817. 6. Turning to the evidence on record, I find that besides the complainant four witnesses were examined. The complainant stated that he had entrusted the accused with receiving money in respect of the telegram charges. The accused used to enter the charges received in book No. 817. At the end of the day he used to make an entry in book 853 and mention the total amount collected in respect of the telegram charges during the day. The amount used to be handed over by the accused to him daily. The witness also used to make an entry in his said private book, in respect of the amount received by him from the accused. The private book used to be kept by the witness under lock and key. The amount thus received daily also used to figure in a book bearing No. 116A which is known as "Livro Caixa" (Cash Book). The book 116A used to be written by the complainant after every week, although according to rules it was to be written every day. The accused himself used to dictate to the complainant the items of the income and the complainant used to write them dawn in the book 116A. The complainant had found that there was a difference between the amounts received by him daily from the accused and the amounts which he had to send to the Head Post Office every fortnight. When he checked the books he found that there were some erasures, corrections, etc. in the books 853 and 817. He brought the matter to the notice of the Director of Post and Telegraph. 7. The next witness is one of the employees of the Head Post and Telegraph Office who was deputed by the Director of Post and Telegraph to inquire into the matter at the Mapuca Telegraph Office. This witness has stated that he, along with other members of the Inquiry Committee submitted a report to the Director after examining the books, etc.; that the Committee had proposed to the Director that the matter should be reported to the Police as they suspected that the acts of the accused were criminal. Meanwhile the Director also held disciplinary proceedings against the accused. The disciplinary proceedings finally ended in awarding to the accused a penalty of 16 days of fine. The penalty was applied under Portuguese Law. 8. Meanwhile the Director also held disciplinary proceedings against the accused. The disciplinary proceedings finally ended in awarding to the accused a penalty of 16 days of fine. The penalty was applied under Portuguese Law. 8. The next witness is one of the experts who was appointed to examine the books concerned in this case by the trial Court. This witness has admitted that he does not have any course or special training in graphology, but that as he had worked in the notary's office he was in a position to identify signatures and handwritings of persons. The next two witnesses were also experts who were appointed by the Court to examine the books concerned in the case. 9. Before I enter into the appreciation of this matter the first point I will have to ascertain is whether the Indian Evidence Act would be applicable to the case on hand. The offence relates to the period prior to Liberation and it was investigated under the provisions of the Portuguese Criminal Procedure Code. The Indian Criminal Procedure Code, 1898 was introduced in this territory with effect from 1-11-1963 under notification No. GAD/74/63/21790 dated 24-9-1963 issued by the Lt. Governor. Under another notification dated 6-11-1963 also issued by the Lt. Governor, it was provided that all criminal proceedings in reaction to offences committed prior to the date of the coming into force of the Criminal Procedure Code shall be carried on under the law in force in the territory before that date. The vires of the notification dated 6-11-1963 came for adjudication before the Supreme Court and the Supreme Court has held that the said notification dated 6-11-1963 is valid. (See Uttam Bala v. Asst. Collector, Customs, AIR 1970 SC 1765 ) : (1970 Cri LJ 1369). That being the case, the legal position would be that in these proceedings the procedure to be followed is the one laid down by the Portuguese Criminal Procedure Code. But that would not mean that the other Indian laws which have been made applicable to this territory and in so far as they are not inconsistent with any of the relevant provisions of the Portuguese Criminal Procedure Code, would not be applicable. But that would not mean that the other Indian laws which have been made applicable to this territory and in so far as they are not inconsistent with any of the relevant provisions of the Portuguese Criminal Procedure Code, would not be applicable. In fact, it would be the duty of the Courts to give effect to the other laws made applicable to this territory in such proceedings so far as they are not inconsistent with the Portuguese Criminal Procedure Code. The Portuguese Criminal P.C. does incorporate some provisions regarding evidence. With the coming into force of the Indian Evidence Act these provisions are repealed. It is contended by Shri Kolwalkar that the learned trial Judge has placed much reliance on the confession said to have been made by the accused during his custody with the Police. According to him the alleged confession is hit by Section 25 of the Indian Evidence Act and therefore the trial Court was not justified in placing any reliance on that concession. This point appears to have been raised also before the trial Court. The trial Court opined that the proceedings having been dealt with under the Port. Criminal Procedure Code, the Indian Evidence Act was not at all applicable. As I have already pointed out above, I agree that the Indian Evidence Act is applicable in such cases. Even under the Portuguese Criminal Procedure Code no conviction could be based solely on a confession. Corroborative evidence was necessary. In this particular case I find that the confession was afterwards retracted by the accused and it was alleged by the accused that it was obtained by third degree methods. Under such circumstances, it would not be safe to place reliance on such confession. 10. It is next contended by Shri Kolwalkar that no reliance should be placed on the statements of the expert witnesses as the witnesses are not experts in the matter, in the sense that they have not passed by examinations or have undergone any special course on identification of handwritings. In short, his contention is that those witnesses were not handwriting experts at all and just because those witnesses were working either as notary publics or some other officers of the Government they did not, become experts in handwriting. In short, his contention is that those witnesses were not handwriting experts at all and just because those witnesses were working either as notary publics or some other officers of the Government they did not, become experts in handwriting. It was next pointed out by him that the report prepared by these witnesses also could not be relied upon for another reason, namely, that the books which were alleged to have been falsified by the accused were not at all produced before the trial Court and the trial Court could not personally examine any of these books so as to enable him to come to the conclusion that there has been any falsification of the accounts in those books and that such falsification was done by the accused. He further argues that in cases where the allegation has been that certain books of account have been falsified or, in other words that some forgery has been committed, it is absolutely essential that the books or documents which are alleged to have been forged be produced by the prosecution before the trial Court and that if the prosecution fails to produce the alleged forged documents the accused is entitled to an acquittal and further, that Courts should not, in the absence of the documents alleged to have been forged, hold the accused guilty of a serious crime like the one, the accused was convicted of. There is much weight in this contention of Shri Kolwalkar. 11. I have gone through the entire record of these proceedings. The expert witnesses examined on behalf of the prosecution do not possess any special qualification to make them handwriting experts. In a number of cases it has been held that even the opinion of a handwriting expert, in forgery cases, is very weak evidence and that the Courts should find out whether there is other evidence to support the handwriting expert's opinion or evidence to show that the accused was the person who has forged the documents. In a number of cases it has been held that even the opinion of a handwriting expert, in forgery cases, is very weak evidence and that the Courts should find out whether there is other evidence to support the handwriting expert's opinion or evidence to show that the accused was the person who has forged the documents. Added to all this is the fact that the books which were alleged to have been forged or wherein the accounts have beep alleged to have been falsified were not before the trial Court so that the trial Court could not, on its own, make up its mind or appreciates the fact of the alleged forgery or falsification of accounts made by the accused I think under such circumstances it is highly unsafe to allow the conviction to stand. 12. Further Shri Kolwalkar has assailed the testimony of the complainant on various counts. In order to appreciate the arguments of Shri Kolwalkar it is necessary to examine certain facts deposed to by the complainant. According to the complainant the falsification or forgery by the accused consisted in the following : The accused used to enter a lower figure in book 853 before he handed over the daily cash received to the complainant and thereafter increase that figure to a figure representing amount actually received on that particular day, for example, if the telegram charges received amounted to 400/00, the accused would write 100/00 and after that amount of 100/00 was handed over to the complainant, the accused used to change the figure 1 to 4. Shri Kolwalkar's contention on this point is that there is no eye-witness to show that such changing of the figures was done by the accused. Further, according to the prosecution this manipulation was going on or over 10 months. It is surprising that none of those working in the office could detect such falsification. Shri Kolwalkar then points out to the fact that the complainant was receiving a pay of Rs. 300/- per month, but according to him he sustained losses of 21,000/00 for a period of roughly 10 months. That means that every month he had to pay from his pocket about Rs. 300/- to make up the shortage. For ten continuos months the entire pay of the complainant would be spent to make good the shortage. This would sound absurd under any standard of assessment. That means that every month he had to pay from his pocket about Rs. 300/- to make up the shortage. For ten continuos months the entire pay of the complainant would be spent to make good the shortage. This would sound absurd under any standard of assessment. According to Shri Kolwalkar this behaviour of the complainant is not what is ordinarily expected from a reasonable man. A reasonable man would in such circumstances immediately after a month or two, try to find out how the shortage was taking place. Next, Shri Kolwalkar points out that according to the complainant the said private book of the complainant used to be kept by him in his drawer and that he never parted with the key of the drawer to anyone. When the complainant was asked to explain how it was possible in these circumstances for the accused to change the figures recorded in the private book, he gave two explanations which contradict each other. First he said that he suspected that the accused had a duplicate key with him, but later on he said that the accused had confessed that he had a duplicate of that key. Shri Kolwalkar further contends that the complainant has not explained how the accused could have prepared a duplicate of the key when he (the complainant) was never parting with his key of the drawer. Secondly, assuming the accused had a duplicate key, it is not known how he could gain access to the drawer of the complainant, remove the book from there and change the figures almost everyday without being detected even once or even raising an suspicion. All this according in Shri Kolwalkar is highly improbable if not impossible. I feel that there is much weight in this contention of Shri Kolwalkar. The word of the complainant does not appear to be worthy of any credit. 13. I have already pointed out a number of infirmities in the case of the prosecution. In the face of them I find that it is absolutely unsafe to convict the accused of the offence for which he has been convicted, by the trial Court. ORDER The appeal is allowed. The order dated 21-6-1971 of the trial Court is set aside. The accused is acquitted. In the face of them I find that it is absolutely unsafe to convict the accused of the offence for which he has been convicted, by the trial Court. ORDER The appeal is allowed. The order dated 21-6-1971 of the trial Court is set aside. The accused is acquitted. The fine, if paid, shall be refunded as also the amount of 15000/00 deposited on behalf of the accused shall be returned to the depositor. Appeal allowed.