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Allahabad High Court · body

1985 DIGILAW 400 (ALL)

Punjab And Sind Bank, Varanasi v. Guru Sharan Singh

1985-04-05

N.N.SHARMA

body1985
JUDGMENT N.N. Sharma, J. - This revision is directed against order dated 17.10.1981 recorded by Sri Shiv Pratap Narain Asthana, learned Munsif Magistrate, Varanasi in Case No. 1247 of 1970 under Sections 419/ 420/467/468 of Indian Penal Code, State v. Guru Sharan Singh Bedi by which Guru Sharan Singh Bedi, opposite party No. 1 was acquitted of the aforesaid charges. 2. It was alleged that opposite party No. 1 Sri Guru Sharan Singh Bedi was a Clerk-cum-Cashier in the Punjab and Sind Bank Ltd. at Siliguri Branch, district Darjeeling. He was alleged to have forged Bank Draft No. 983972/19/77 dated 14.7.77. He pocketed that amount on 20.7.1977 at the branch of the said Bank in Lahurabir, Varanasi. The aforesaid draft, Ext. Ka. 19 was encashed by him when his identity was verified by Sri Bhuvneshwar Singh (P.W.2), Proprietor of Ajai Hotel, Varanasi where the accused used to stay and had stayed earlier on 1.7.1977, 8.7.1977 for a couple of days. He also stayed there in between 18.7.1977 and 22.7.1977 as testified by Sri Uma Shanker Ganguley (P.W.3), Manager of the said hotel who proved the singatures of accused and personated by Sri R.N. Tyagi during his stay there and at the time of receiving the amount of the said bank draft. Sri Madhu Chand Kapoor (P.W.10) agent of Prakash Sari Industries, also claimed to have met the accused during the said stay on the first floor of the hotel and guided him under the directions of the principal. He also learnt the name of accused as R.N. Tyagi. Subsequently, the fraud was detected when the number of the bank draft was checked at Siliguri. Shri Guru Sharan Singh Saluja (P.W.1) Branch Manager of the said bank in Varanasi Branch informed the police vide FIR Ext. ka.11 dated 10.8.77. Thus, the said branch Bank sustained a loss of Rs. 11,900/- through such personation of the accused as R.N. Tyagi. On completion of investigation, opposite party No. 1, Sri Guru Sharan Singh Bedi was sent up. 3. In his statement, opposite party No. 1, the accused, denied to be a forger, and his stay at Varanasi. He also denied to have gone to Varanasi on the relevant dates but alleged that he was attending his duties at Siliguri on the relevant dates. 4. 3. In his statement, opposite party No. 1, the accused, denied to be a forger, and his stay at Varanasi. He also denied to have gone to Varanasi on the relevant dates but alleged that he was attending his duties at Siliguri on the relevant dates. 4. Prosecution examined 11 witnesses in support of their case and also adduced documentary evidence including the testimony of Handwriting Expert Sri A.H. Rizvi (P.W.6) who compared the disputed writing with the specimen writing and opined that these documents, including the signature in the register of the hotel, were scribed by the same person. He remained unshaken in cross-examination about the reasons given by him for arriving at that opinion. 5. Learned Magistrate scrutinised the aforesaid evidence and found that the testimony of Sri Harjender Singh Ahuja (P.W.9) examined by prosecution itself coupled with the record produced by him justified the conclusion that at the rele vent period in between 18.7.1977 and 20.7.1977, the accused was in Siliguri and attending his duties and making the entries in the register etc. and he was not at Varanasi. Thus, this Alibi was accepted by the learned trial Magistrate who acquitted the accused. 6. I have heard learned counsel for parties at length and perused the record carefully. 7. Learned Advocate for revisionist pointed out that the court below was led away by the observation in Magan Bihari Lal v. the State of Punjab, A.C.C. 1977 (14) S.C. 129, when he observed that the testimony of handwriting expert needed corroboration and such opinion has to be received with great caution. These observations were departed from in Murari Lal v. State of M.P., A.I.R. 1980 S.C. 31 and 532 which posited:- "There is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must be acted upon, unless substantially corroborated. But, having due regard to imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully proved and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. Reasons for the opinion must be carefully proved and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight." 8. I have carefully considered over the matter. 9. Learned trial Magistrate while assessing the evidence adduced by prosecution found that the weight of evidence oral as well as documentary, on record was against the prosecution version on this point. 10. The two witnesses, who were examined by prosecution to connect the accused with this crime through the verification made by Sri Bhuvneshwar Singh (P.W.2) faltered in cross-examination. Bhuvneshwar Singh (P.W.1) himself was an accomplice and unworthy of credit vide Section 114, illustration (b) of Indian Evidence Act. No description of the accused was given by him before the investigator. Bhuvneshwar Singh (P.W.2) as well as Uma Shanker Ganguley (P.W.3) failed to identify the accused in test identification parade also. That identification parade was conducted on 27.11.1978. Only Sri Madho Chand Kapoor (P.W.11) could identify the accused in that parade but Sri Kapoor had nothing to do about the encashment of this cheque. He was not present when the accused is said to have forged or pocketed the amount of the draft. It was for the trial Magistrate to assess the testimonial weight of the evidence of the aforesaid witness. 11. From a careful perusal of the aforesaid evidence, I find that no description of the accused was laid in F.I.R; the investigating agency did not interrogate, the eye-witnesses about the features of the accused though they had to pickup the accused in test identification parade. Thus, the testimony of such witnesses had no weight vide Manzoor v. State of U.P. and Suleman v. State of U.P., 1982 SCC (Cri.) 356. Under such circumstances it could not be held that the testimony of an expert could not weigh the version of defence. It is not possible for this court to reassess the evidence in revision, so conviction is sustainable on the testimony of a handwriting expert, in view of the infirmities pointed out above in prosecution evidence. 12. Under such circumstances it could not be held that the testimony of an expert could not weigh the version of defence. It is not possible for this court to reassess the evidence in revision, so conviction is sustainable on the testimony of a handwriting expert, in view of the infirmities pointed out above in prosecution evidence. 12. Learned Advocate for revisionist further pointed out that the evidence of alibi has not been proved by the accused who was bound to prove it vide Dalel Singh v. Jag Mohan Singh and others, 1981 Cri. L.J. 667. 13. It is further significant to note that a careful perusal of the statement of Sri Harjender Singh Ahuja (P.W.9) shows that he was not cross-examined by the prosecution although he supported the defence version. Learned Advocate for revisionist pointed out that he did not depose with reference to the accused. This submission is incorrect as the very examination-in-chief opened by the statement that he had seen the accused present in the dock and he was acquainted with him. There is nothing on record to show that Sri Harjendar Singh Ahuja (P.W.9) had motive to save the accused and was held fast by his statement. Under such circumstances, the learned trial Magistrate rightly held that the prosecution has failed to prove the case against the accused beyond reasonable doubt. 14. An application in revision by a private party cannot be allowed as a matter of course while the Government has not preferred any appeal against the order of acquittal under Section 378 Cr. P.C. Such jurisdiction could be exercised only in exceptional cases where the interest of justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record. Revisional application against acquittal can be entertained only in exceptional cases, such as where a question of law of general importance to the community arises in the case. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record. Revisional application against acquittal can be entertained only in exceptional cases, such as where a question of law of general importance to the community arises in the case. Such exceptional cases are:- (i) The trial court having no jurisdiction has acquitted the accused; (ii) it has wrongly shut out evidence of the prosecution; (iii) the appellate court has wrongly held the evidence admitted by the trial court as inadmissible; (iv) the material evidence has been overlooked either by the trial court or the court of appeal; and (v) the acquittal is based on a compounding of the offence, invalid under the law. 15. None of the aforesaid grounds has been made out in this revision to justify my interference. 16. In the result, the revision fails and is dismissed.