ARVIND BALASHANKER JOSHI v. STATE — 1980 DIGILAW 111 (GUJ)

V. H. BHAIRAVIA, J. ( 1 ) ON being aggrieved by the judgment and order of the learned Addl. City Sessions Judge Ahmedabad delivered on 19 in Criminal Appeal No. 178 of 1980 upholding the order of conviction for the ofences punishable under Secs. 409 420 468 and 471 of the I. P. Code passed by the learned Metropolitan Magistrate Ahmedabad in Criminal Case No. 4066 of 1980 dated 18-7-1980 the petitioner accused has challenged the impugned conviction order in this criminal revision application. ( 2 ) ACCORDING to the prosecution two accused namely Shri Arvind Balashanker Joshi-Accused No. 1 and Shri Jayantilal Trivedi-Accused No. 2 were chargesheeted in the Court of the learned Metropolitan Magistrate Ahmedabad for the offences alleged to have been committed under Secs. 120 (B) 409 420 466 468 and 471 of the I. P. Code. On appreciation of the prosecution evidence the learned Metropolitan Magistrate acquitted the original accused No. 2 Shri Jayantilal Ambalal Trivedi but accused No. 1-petitioner has been held liable for the alleged offences and he has been convicted and sentence to suffer rigorous imprisonment of three months and of pay a fine of Rs. 2000. 00 in default of payment of fine to suffer further rigorous imprisonment for one month for the offence punishable under Secs. 409 420 and 471 months and to pay a fine of Rs. 500. 00. in default of payment of fine to suffer further rigorous-imprisonment for the offence punishable under Sec. 468 of the I. P. Code. Both the sentences were ordered to run concurrently by the learned Metropolitan Magistrate by his judgment and order dated 18-7-1980. However no offence punishable against the accused. No appeal against the acquittal of accused No. 2 has been filed by the State. ( 3 ) AGAINST the order of conviction accused No 1-petitioner had filed an appeal being Criminal Appeal No. 178 of 1980 in the Court of the Addl. City Sessions Judge. Said appeal came to be partly allowed setting aside the conviction of the accused No 1-petitioner for the offence punishable under Sec. 468 of the I. P. Code and confirming the conviction for the offences punishable under Secs. 409 420 and 471 of the I. P. Code by the learned Addl. City Sessions Judge Ahmedabad in his impugned judgment and order dated 19-10-1981. 409 420 and 471 of the I. P. Code by the learned Addl. City Sessions Judge Ahmedabad in his impugned judgment and order dated 19-10-1981. ( 4 ) THE prosecution case in short is that during the year 1976-77 accused No 1-Shri Arvind Balashanker Joshi and accused No. 2-Shri Jayantilal Ambalal Trivedi were serving in the office of the Inspector General of Registrars Gujarat State at Ahmedabad as Account Clerk and Personal Asstt to Inspector General of Registrar respectively. According to the prosecution during this period a system of supplying photo-state copies to the offices of the District Sub-Registrars in the State was introduced and for keeping photo-state copies in well-preser- ved and safe condition it was decided to provide iron (tin) boxes to the respective offices of District Sub-Registrars Accordingly an order was placed to M/s. H. K. and Brothers Ahmedabad for supplying 500 tin boxes by the Inspector General of Registrar on 30-10-1976 (Exh. 18) Pursuant to the order Exh. 18 500 tin boxes were supplied by M/s. H. K. and Brothers to the different offices of the District Sub-Registrars and a bill (Exh. 6) for Rs. 9282-00 was forwarded to the office of the Inspector General of Registrar Ahmedabad by M/s. H. K. and Brothers on 23-12-1976 for the payment against the price of 500 tin boxes. It is the prosecution case that the accused No 1 being the Account Clerk had prepared a bill for Rs. 9282-00 (Exh. 7) and submitted it to the office of Pay and Accounts Ahmedabad under the counter signa- ture of accused No 2 but the office of Pay and Accounts had raised objection as regards under which Government Order the Inspector General of Registrars Office has purchased tin boxes directly from the M/s. H. K. and Brothers. It has been alleged that twice the bill (Exh. 7) was returned because of non-compliance of the objection. It has been alleged that the accused No. 1 had complied objection by producing false document Exh. 45 purporting to be the Government Resolution regarding purchasing of tin boxes directly from the Company by the Inspector General of Registrar Office on complying with the objection raised by the office of the Pay and Accounts by the office of the Inspector General of Registrar bill for Rs. 9282-00 (Exh. 7) came to be passed by the office of the Pay and Accounts. 9282-00 (Exh. 7) came to be passed by the office of the Pay and Accounts. This amount has been received by the accused No. 1 and entry to that effect was also made in the cash-book by accused No. 1. It has been alleged that though the pay- ment of tin boxes was made by the respective Sub-Registrars Offices to M/s. H. K. and Brothers directly the accused No. 1 has also shown the payment to M/s. H. K. and Brothers in the cash-book and thus it has been alleged that he had misappropriated an amount of Rs 9282-00. Further it has been alleged that the accused No. 1 had also forged a document Exh. 45 and used it as a genuine one for the purpose of complying with the objection raised by Pay and Accounts Office. Thus the accused came to be chargesheeted for the offences punishable under Secs. 120 (B) 409 420 466 468 and 471 of the I. P. Code and he has been convicted by the learned Metropolitan Magistrate for the offences as stated above. But in appeal the accused-petitioner has been acquitted of the offence punishable under Sec. 468 of the I. P. Code meaning thereby that the document Exh. 45 was not held to be forged by the accused No 1-petitioner However the learned Addl. City Sessions Judge held that the accused No. 1 had a Knowledge as regards the document Exh. 45 being the forged document and has used the same as a genuine one for the purpose of getting bill for Rs 9282-00 to be passed by the Pay and Accounts Office and therefore he maintained conviction under Secs. 409 420 and 471 of the I. P. Code by his impugned judgment and order. ( 5 ) THE defence of the accused No. 1-petitioner is that the payment of Rs 9282-00 was made by the accused No. 2 in his absence on 28 to M/s. H. K. and Brothers and on the say of the accused No. 2 he had made debit entry in the cash-book. He has also denied the alleged execution of writing Exh. 48 and denied the double payment as alleged. ( 6 ) THIS Court is conscious about the scope of its revisional jurisdiction. He has also denied the alleged execution of writing Exh. 48 and denied the double payment as alleged. ( 6 ) THIS Court is conscious about the scope of its revisional jurisdiction. It is a discretionary power required to be exercised judiciously and only in exceptional cases where there is glaring defect in procedure and manifest error on the point of law which has resulted into miscarriage of justice. The learned Addl. Public Prosecutor Mr. S. P. Dave has also drawn my attention towards the observations made by the Supreme Court in the case of State of Orissa v. Nakula Sahu and Ors. AIR 1979 SC 663 . It has been observed in para-9 by the Supreme Court as follows :9 So far as the first point is concerned. It is to be emphasised that although the revisional power of the High Court under Sec. 439 read with Sec. 435 of the Code of Criminal Procedure 1858 is us vide as the power of Court of Appeal under Sec. 423 of the Code. it is now well settled that normally the jurisdiction of the High Court under Sec. 439 is to be exercised only in exceptional cases when there is a glaring defect In the procedure or there is a manifest error on the point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court In Amar Chand Agarwalla v. Shanti Bose 1973 (4) SCC 10 : ( AIR 1973 SC 799 ) and Akalu Ahir v. Ramdeo Ram. 1973 (2) SCC 583 : ( AIR 1973 SC 2145 ). In the latter case vis. Reference in this connection may be made to the decisions of this Court In Amar Chand Agarwalla v. Shanti Bose 1973 (4) SCC 10 : ( AIR 1973 SC 799 ) and Akalu Ahir v. Ramdeo Ram. 1973 (2) SCC 583 : ( AIR 1973 SC 2145 ). In the latter case vis. Akalu Ahir v. Ramdeo Ram (supra) this Court following its earlier decision in Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of Sec. 435 of the Code of Criminal Procedure 1898 which empo- wered it to satisfy itself as to the correctness legality or propriety of any findings sentence or order recorded or passed by any inferior Court situate within the limits of its jurisdiction and as to the regularity of any proceedings of such inferior Court and in spite of the fact that under Sec. 439 of the Code it can exorcise inter alia the power conferred on a Court of appeal under Sec. 423 of the Code the High Court is not expected to act under Sec. 439 or Sec. 439 as if it is hearing an appeal. The power being discretionary it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion as has often been said means a discretion which is informed by tradition methodised by analogy and disciplined by system. ( 7 ) IN view of the settled legal position regarding the revisional jurisdiction of the High Court the learned Counsel Mr. Dhruva appearing on behalf of the accused No. 1-petitioner has raised the following three contentions involving point of law only : (I) That the trial Court has committed serious irregularities in procedure while recording statement of the accused under Sec. 313 of the Cri. Pro. Code that not a single question was put to the accused to explain the circumstances alleged against him by the prosecution witnesses and has thus caused prejudice to the accused No. 1-petitioner in defending and explaining the circumstances alleged against him. (II) Once the accused is acquitted of the offence punishable under Sec. 468 of the I. P. Code he cannot be convicted for the offence punishable under Secs. 420 and 471 of the I. P. Code unless there is 8 direct and independent evidence as regards the knowledge of forged document (Exh. 45 ). (II) Once the accused is acquitted of the offence punishable under Sec. 468 of the I. P. Code he cannot be convicted for the offence punishable under Secs. 420 and 471 of the I. P. Code unless there is 8 direct and independent evidence as regards the knowledge of forged document (Exh. 45 ). (III) The conviction under Sec. 409 of the I. P. Code of the accused No. 1-petitioner is unsustainable as the finding of the trial Court is absolutely perverse because the conviction is based only on alleged writing Exh. 48 which is not legally proved and the material document Exh. 75 which is in favour of the accused No. 1-petitioner has not been considered by the trial Court. ( 8 ) I see considerable substance and force in the submissions of the learned Counsel of the petitioner. Looking to the record and proceedings of the trial Court conviction of the accused No 1- petitioner seems to be bad in law and it is liable to be quashed and set aside on the first contention alone. But in the interest of full and fair justice and also for the satisfaction of the Courts conscience I would like to deal with all the contentions raised by the learned Counsel for the accused No. 1-petitioner. ( 9 ) IT has been submitted by the learned Counsel for the accused No. 1-petitioner that the accused was not given an opportunity to explain the circumstances alleged against the accused by the prosecution witnesses while recording the statement under Sec. 313 of the Cr. P. Code. It has been submitted that the further Statement under Sec 313 of the Cr. P. Code must be in the form of question-answer required to be recorded by the trial Court. In the instant case not a single question was put to the accused enabling him to explain the circumstances deposed against him by the prosecution witnesses. It has been submitted that the learned Metropolitan Magistrate has relied on the writing Ex. 48 produced by P. W. 5 Saiyed Noor Hussain in the cross-examination of the accused No. 2 and based conviction for the offence under Sec. 409 of the I. P. Code but the learned Metro- politan Magistrate has not made any inquiry from the accused under Sec. 313 of the Cr. P. Code. 48 produced by P. W. 5 Saiyed Noor Hussain in the cross-examination of the accused No. 2 and based conviction for the offence under Sec. 409 of the I. P. Code but the learned Metro- politan Magistrate has not made any inquiry from the accused under Sec. 313 of the Cr. P. Code. The trial Court based conviction for the offence under Sec. 471 of the I. P. Code on a presumption of knowledge and reason to believe regarding the alleged forged document (Exh. 45) from the circumstances particularly letter Exh. 52 dated 7-2-1977 and admittedly written by the accused No. 2 and produced by P. W. 7 Shri Krishnakant Soni and the letter Exh. 56 dated 7-2-1977 also written by the accused No. 2 and has been produced by P. W. 9 Narandas Joitaram Chhatbar (Exh. 55 ). The accused was not given any opportunity to explain the alleged circumstance under Sec. 313 of the Cr. P. Code. Likewise the trial Court has much relied on the evidence of P. W. 18 Shri Jaydev Vyas (Exh. 71) Inspector General of Registrar but no question as regards why this witness gives evidence against him was put to the accused. These are the circumstances and lacuna which have been pointed out by the learned Counsel for the accused No. 1 peti- tioner. I have gone through the statement recorded under Sec. 313 of the Cr. P. Code by the learned Metropolitan Magistrate at page 52 of the paper-book. It seems that it has been recorded in the form of written statement of the accused and not in the question-answer form. I see much force in the submission of the learned Counsel for the accused No. 1-petitioner. In support of his arguments the learned Counsel for the accused No. 1-petitioner has relied on the case of State of Himachal Pradesh v. Vazir Chand AIR 1978 SC 315 . It is obligatory on the Court to question the accused on the circumstances appearing against him in evidence given so as to enable him to explain the same. The Court has to guard against the cross-examination of the accused. Accused should be put question with regard to the circumst- ances appearing against him in evidence and on the inferences that flows from the circumstances. The answers given by the accused have to be taken into consideration. The Court has to guard against the cross-examination of the accused. Accused should be put question with regard to the circumst- ances appearing against him in evidence and on the inferences that flows from the circumstances. The answers given by the accused have to be taken into consideration. Farther in the case of Harnamsing v. State (Delhi Administration) AIR 1976 SC 2140 it has been observed that Sec. 342 of 1898 Code (corresponding to Sec. 313 of the 1973 Code) cast a duty on the Court to put on in any inquiry or trial the question to the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Therefore each material circumstance appearing in evidence against the accused is required to be put to him specifically distinctly and separately. Failure to do 50 amounts to serious irregularity vitiating the trial if it is shown to have prejudiced the accused. The learned Counsel for the petitioner-accused No. 1 has further relied on the case of Sharad v. State of Maharashtra AIR 1984 SC 1622 . It has been observed by the Supreme Court in para-142 as follows;142 Apart from the aforesaid comments there is one vital defect in some of the circumstance mentioned above and relied upon by the High Court viz. circumstances Nos. 4 5 6 8 9 11 12 13 16 and 17. As these circumstances were not put to the appellant in his statement under Sec. 313 of the Criminal Procedure Code the must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat. AIR 1953 SC 468 this Court held that nay circumstances in respect to which an accused was to examined under Sec. 342 of the Criminal Procedure Code cannot be used against him Even since this decision there is a catena of a authorities of this Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under Sec. 342 of Sec. 313 of the Criminal Procedure Code the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra 1976 (1) SCC 438 : ( AIR 1976 SC 557 ) this Court held thus : the fact that the appellant was said to be obsconding not having been put to him under Sec. 342 Criminal Procedure Code could not be used against him. ( 10 ) IT has been further observed by the Supreme Court in para-143 as under :to the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat AIR 1979 SC 1566 where in following observation were made : n the first place he stated that on the personal search of the appellant a chadi was found which was blood stained and according of the report of the serologist it contained human blood. Unfortunately however as this circu- mstance was not put to the accused in his statement under Sec. 3432 the prosecution cannot be permitted to rely on this statement order to convict the appellant. ( 11 ) IT has been further observed by the Supreme Court in para-144 as under :it is not necessary for us to multiply authorities on the point as this question now stands concluded by several decision of this Court. In this view of the matter the circumstance which were not put to the appellant in his examination under Sec. 313 of the Criminal Procedure Code have to be completely excluded from consideration. ( 12 ) IN view of the settled legal position as regards the procedure required to be followed by the learned Magistrate while recording the further statement of the accused under Sec. 313 of the Cr. P. Code and in the instant case there is lacuna and serious irregularities apparently committed by the learned Magistrate resulting the order of conviction unsustainable and liable to be quashed and set aside. The learned Addl. Public Prosecutor submitted that it is an irregularity committed by the trial Court in recording further statement of the accused under Sec. 313 of the Cr. P. Code and therefore the matter should be remanded back for filling up the said lacuna; in other words; to send back the matter for retrial afresh. It is absurd and meaningless submission made by the learned Addl. Public Prosecutor. P. Code and therefore the matter should be remanded back for filling up the said lacuna; in other words; to send back the matter for retrial afresh. It is absurd and meaningless submission made by the learned Addl. Public Prosecutor. The prosecu- tion against the accused was initiated in the year 1979 and this revision application is being heard and disposed of in the year 1990. In my view it would be meaningless and exercise in futility if after lapse of about 11 years the matter is sent beck for retrial and no fruitful purpose would be served now. Whatever irregularities are committed or lacuna left which has caused great prejudice to the accused cannot be curd now at the belated stage by sending the matter back for retrial. On the contrary benefit of which should and must go in favour of the accused. I therefore do not accept the submission canvassed by the learned Addl Public Prosecutor and the same is rejected It is therefore hold that the learned Magistrate has failed to discharge his obligatory duty while recording further statement of the accused under Sec 313 of the Cr. P. Code and therefore the order of conviction passed by the learned Magistrate is unsustainable bad in law and requires to be quashed and set aside on this ground alone. ( 13 ) IT was next contended by the learned Counsel for the peti- tioner that the accused was chargesheeted for the offence punishable under Secs. 120 (B) 409 420 466 468 and 471 of I. P. Code and was convicted by the learned Metropolitan Magistrate for the offences punishable under Secs. 409 420 468 and 471 of the I. P. Code. But in appeal accused has been acquitted of the offence punishable under Sec 468 of I. P. Code and conviction under Secs. 409 420 and 471 of the I. P. Code has been maintained by the learned Addl City Sessions Judge (meaning thereby that the alleged forged document Exh. 409 420 468 and 471 of the I. P. Code. But in appeal accused has been acquitted of the offence punishable under Sec 468 of I. P. Code and conviction under Secs. 409 420 and 471 of the I. P. Code has been maintained by the learned Addl City Sessions Judge (meaning thereby that the alleged forged document Exh. 45 was not held to be proved forged by the accused-petitioner) It has been therefore submitted by the learned counsel appearing for the petitioner accused that once the document in question (Exh 45) is held proved to be not forged by the accused and accused is acquitted of the offence punishable under Sec. 468 of the I. P. Code he cannot be convicted for the offences punishable under Secs. 471 and 420 of the I. P. Code unless these is direct and independent evidence regarding the Acknowledge and reason to believe that the accused and none-else has wed forged document In the instant case even according to the Metropolitan Magistrate there is no direct evidence that the accused had knowledge about the document Exh 45 being a forged document but it has been presumed by the Court from the circumstances particularly letters Exh 52 and 56 that there is a reason to believe that the accused had know- ledge about the forged document Exh. 45 and that with that knowledge it has been good as a genuine one For drawing presumption under Sec. 114 of the I P Code there must be nexus between the facts and circumstances and that too there must be legal presumption In my view the learned Metropolitan Magistrate erred in drawing such presumption as regards the knowledge of forged document Exh. 45 There may not be a direct evidence as regards the knowledge but the circumstances relied must have some nexus between the fact and presumption on the contrary there is a finding that Exh. 45 There may not be a direct evidence as regards the knowledge but the circumstances relied must have some nexus between the fact and presumption on the contrary there is a finding that Exh. 45 is not forged by the accused and in my view once the charge for the offence punishable under Sec. 468 of the I. P. Code is not proved against the accused the accused cannot be convicted for the knowledge or reason to believe about the alleged forged document Exh 45 and therefore conviction under Sec. 471 of the I. P. Code is bad arid unsustainable It has been observed in the case of Hira Lal Panna Lal Mahi v. State of Gujarat (SC) 1969 GAR (SC) 204 Supreme Court in para 6 of the judgment observed as under [ 1969 (3) SCC 756 at page No 758 para 5] :we have gone through the reasoning of the High Court in this regard. It has acquitted the appellant of the offence under Sec. 471 IPC on the specific finding that on the evidence it is difficult to come to the conclusion that the appellant knew or even had reason to believe that the licence in question Exhibit 48 here a forged signature of the Officer Mr. Pillania. The High Court also is of the view that the appellants guilt or otherwise under Sec. 4. 0 IPC will base to be considered only with reference to the hence Exhibit 48 given to the witness Rajaji. Prima facie we are Inclined to accept the contention of the learned counsel for the appellant that when once the conviction of the appellant under Sec. 471 IPC has been set aside the High Court was not justified in convicting him under Sec. 410 IPC. We have also gone through the evidence of Rajaji Exhibit 47 and his evidence does not establish any false representation having been made by the appellant. On the other band it is clear that Rajaji must have been well aware that he will not get a valid license for driving motor vehicles. He has not gone to Pali and he has also failed in the driving test at Ahmedabad. Therefore there is no question of the appellant having cheated Rajaji so as to be liable under Sec. 420 IPC. He has not gone to Pali and he has also failed in the driving test at Ahmedabad. Therefore there is no question of the appellant having cheated Rajaji so as to be liable under Sec. 420 IPC. ( 14 ) IN view of above settled legal position in my view there is much force and substance in the second submission canvassed by the learned Counsel for the accused-petitioner. Once the accused is acquitted or exonerated from the charge under Sec. 468 of the I. P. Code in my view he cannot be convicted for the offence punishable under Sec. 471 of the I. P. Code. When accused-petitioner cannot be convicted for the offence punishable under Sec. 471 of the I. P. Code in view of the observations made by the Supreme Court in the case of Hira Lal Panna Lal (supra) he cannot be convicted for the offence punishable under Sec. 420 of the I. P. Code. As stated above when accused is acquitted of the offence under Sec. 468 of the I. P. Code he cannot be convicted for the offence punishable under Sec. 471 of the I. P. Code unless there is direct and independent evidence irrespective of circumstantial evidence. Circumstantial evidence relied upon by the trial Court has no nexus with the facts of the present case. The learned trial Judge has relied on the letters Exh. 52 and 56 admittedly written by the accused No. 2 pertaining to the instructions given to the office of the District Sub-Registrars for making payment of price of tin boxes to H. K. and Brothers directly. There is no evidence to show that the letters containing said instructions were sent to the accused No. 1-petitioner. There is no endorsement on the letter that the copy of this letter was forwarded to the accountant-accused No. 1. Therefore relying the letters Exh. 52 de 56 the trial Court has drawn presumption that the accused had knowledge about the forged document has no legal force. The prosecution has failed to prove the case for the offence punishable under Sec. 471 of the I. P. Code beyond doubt. I therefore hold that no offence under Sec. 471 of the I. P. Code is proved to have been committee by the accused-petitioner and consequently offence punishable under Sec. 420 of the I. P. Code is also held not proved. I therefore hold that no offence under Sec. 471 of the I. P. Code is proved to have been committee by the accused-petitioner and consequently offence punishable under Sec. 420 of the I. P. Code is also held not proved. Consequently order of conviction passed by the learned Metropolitan Magistrate against the accused-petitioner for the offences punishable under Secs. 471 and 420 of the I. P. Code is bad-in-law and is liable to be quashed and tot again. ( 15 ) THAT brings me to the last submission canvassed by the lear- ned Counsel for the petitioner-accused. It has been submitted by the learned counsel appearing for the petitioner-accused that the conviction of the petitioner under Sec. 409 of the I. P. Code is bad-in-law and unsustainable as the finding of the trial Court is absolutely perverse and it has not been proved beyond doubt by the prosecution that the petitioner-accused had misappropriated the said amount and used or diverted for his own use. It has been further submitted that so far as question of misappropriation is concerned the trial Court has based its conviction on the alleged execution of writing Exh. 48 read with evidence of Shri Jaydev Vyas. Inspector General of Registrars and maintained conviction for the offence punishable under Sec. 409 of the I. P. Code which has been confirmed by the learned Addl. City Sessions Judge in appeal. In the said writing Exh. 48 it has been alleged that due to heavy pressure of work and through oversight a double payment has been made to M/s. H. K and Brothers and for that he should be pardoned. It is interesting to note here that this document Exh. 48 has been produced by P. W. 5 Saiyed Noor Hussain (Exh. 46) in cross- examination of accused No. 2-Shri Jayantilal Ambalal Trivedi who has been acquitted by the learned Metropolitan Magistrate. Signature on the said writing Exh 48 is alleged to be identified by this witness but he did not speak a word about under what circumstances this document came in his possession. On the contrary P. W. 18-Jaydev Vyas Inspector General of Registrar (Exh. 17) has deposed that the petitioner -accused had executed a writing Exh. 48 and handed over to him but he could not identify the already of the accused on this writing Exh. On the contrary P. W. 18-Jaydev Vyas Inspector General of Registrar (Exh. 17) has deposed that the petitioner -accused had executed a writing Exh. 48 and handed over to him but he could not identify the already of the accused on this writing Exh. 48 How witness Saiyed Noor Hussain could identify the signature of the accused-petitioner on Exh. 48 ? The prosecution has also examined handwriting expert P W. 19 Shri S. K. Prajapati (Exh. 76a) but his evidence did not support the prosecution. Therefore the learned Metropolitan Magistrate has not considered this evidence at all. I think it just proper and necessary to entertain this argument as it involves mix question of facts and law. I have perused the writing Exh. 48. I found that the ink of signature is quite different from the writing in the body of the document Exh. 48. The word Amrut is visibly found different from word Joshi. It has been submitted by the learned Counsel appearing for the petitioner-accused that the writing Exh 48 has been denied by the accused. Witness Jaydev Vyas Inspector General of Registrar could not identify the signature of the accused and when witness Saiyed Noor Hussain produced this writing Exh. 48 in the cross-examination of accused No. 2 it creates doubt in my mind about the credibility and truthfulness of this witness. In my view the trial Court has committed an error in holding that the writing Exh. 48 has been executed by the accused-petitioner himself when no reliable cogent or independent evidence in led in that behalf. Further I fail to understand how the trial Court the relied on writing Exh. 48 when P. W. 18-Jaydev Vyas (Exh. 71) has deposed that the accused hat executed this writing Exh. 48 and handed over to hims but he could not identify the signature of the accused on Exh. 48. Further the contents of writing Exh. 48 are not proved. As regards misappropriation of the amount the amount has been brought basis by the accused and deposited in the office of the Pay and Accounts by challan under the signature of the accused No. 2. This witness Jaydev Vyas admitted that he had not issued receipt of this amount to the accused nor an entry was made in the cash-book of the office. This witness Jaydev Vyas admitted that he had not issued receipt of this amount to the accused nor an entry was made in the cash-book of the office. Therefore the finding of the trial Court is in my view perverse as it is based on no evidence. Further it has been submitted by the learned Counsel for the petitioner that witness Jaydev Vyas Inspector General of Registrar has written a letter to the Deputy Secretary Revenue Department Gandhinagar dated 9-5-1977 produced at Exh. 75 wherein it has been specifically stated that the amount of double payment has already been recovered in two instal- ments from M/s. H. K. and Brothers. I think it necessary to reproduce the said letter Exh. 75 for appropriate appreciation of evidence particularly when as both the trial Courts have failed to consider letter Exh. 75. Likewise letter Exh. 76 also clears the same value and weight in evidence and therefore I think it also necessary to reproduce the same herein. ( 16 ) THE letter Exh. 75 is reproduced herein below : ( 17 ) THESE two letters admittedly written by the Inspector General of Register Shri Jaydev Vyas to Government explaining the position regarding the amount in dispute clearly established that the amount was recovered by the office from M/s. H. K. de Brothers in two instal- ments. Nowhere in the letters it is stated that the amount is deposited by the accused No. 1. It reveals from the letter Exh. 75 that before this letter was written to the Government the disputed amount of Rs. 9282. 00 has already been recovered by the office and the alleged writing (Exh. 48 was also obtained from the accused. It has been denied by the accused that he had executed the alleged writing Exh. 48. A very responsible officer and head of the department writes such letter to the Government it is expected that he must have written it with respon- siblity and seriousness. 48 was also obtained from the accused. It has been denied by the accused that he had executed the alleged writing Exh. 48. A very responsible officer and head of the department writes such letter to the Government it is expected that he must have written it with respon- siblity and seriousness. He does not disclose the offence to the Government but he tried to impress upon the Government as if no monetary loss has been done to the Government and when it is found that the accused No. 2 his own Personal Assistant was involved in the alleged conspiracy he had tried to save accused No. 2 and shifted burden upon the accused No. 1 by putting words in the mouth of accused No. 1 and created writing Exh. 48. This letter Exh. 75 speaks volumes itself and destroys the prosecution case. Officer of the rank of Inspector General of Registrars has not given correct report to the Government regarding the misappropriation of amount. In the letter Exh. 75 he informed the Government that amount has been recovered from the Company in two instalments while in deposition before the Court he says that the accused No. 1 has deposited the amount in question in two instalments. It seems that he is not telling the truth before the Court. He has also produced a letter dated 7-9-1977 (Exh. 76) changing his stand and shifted whole liability of double payment on the accused-petitioner. This double story of the higher officer has also created doubt in my mind regarding repayment made by the accused. Accused-petitioner has categorically denied the story of double payment to M/s. H. K. and Brothers and denied that he has deposited the said amount in two instalments. As I have already held that Exh. 48 is not proved to be executed by the accused-petitioner his conviction for the offence punishable under Sec. 409 of the I. P. Code based on this document alone is therefore bad and unsustainable in absence of any independent cogent evidence as regards misappropriation of the amount is question and is liable to be quashed and set aside. 48 is not proved to be executed by the accused-petitioner his conviction for the offence punishable under Sec. 409 of the I. P. Code based on this document alone is therefore bad and unsustainable in absence of any independent cogent evidence as regards misappropriation of the amount is question and is liable to be quashed and set aside. On the contrary prosecution evidence reveals that the accused No. 2 seems to be involved in this offence but he has been acquitted by the trial Court and no appeal is filed by the State against the order of his acquittal and I dont think it proper not to go into that aspect of the matter. ( 18 ) I am in agreement with the submission of the learned Addl. Public Prosecutor that this Court cannot appreciate the evidence under revisional jurisdiction. However as I have held that submissions involve mixed questions of law and facts I was compelled to deal with the submissions made by the learned Counsel of the petitioner-accused in the interest of full and fair justice to the accused in light of the evidence adduced. ( 19 ) RESULT of the above discussion is that the order of conviction and sentence passed against the accused-petitioner is held to be bad- in-law and require to be quashed and set aside. Accused-petitioner is acquitted of the offences with which he was charged and convicted. ( 20 ) CRI. Revision Application is allowed. Order of conviction and sentence passed by both the Courts below are hereby quashed and set aside. The accused-petitioner is hereby acquitted of the offences with which he was charted. He is on bail his bail-band stands cancelled. Fine if paid be refunded back to the petitioner-accused Rule made absolute accordingly. (KMV) Applicant acquitted .