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1986 DIGILAW 372 (ORI)

REPUBLIC OF INDIA v. ASHOK KUMAR MAITY

1986-10-20

B.K.BEHERA

body1986
JUDGMENT : B.K. Behera, J. - This appeal has been directed against the judgment and order of acquittal recorded by the appellate court reversing the order of conviction and sentences passed against the Respondent holding him guilty for commission of offences punishable u/s 420 read with Sections 511, 467 read with Sections 471 and 468 of the Indian Penal Code (for short 'the Code'), convicting him thereunder and sentencing him to undergo rigorous imprisonment for a period of one year for each of the three offences directing that the sentences of imprisonment would run concurrently. 2. The Respondent stood charged u/s 420 read with Section 511 of the Code for having attempted to commit the offence of cheating on March 8, 1976 while he was functioning as a clerk in the United Commercial Bank at Rourkela by showing falsely a credit entry of Rs. 6,300/- in the Savings Bank Ledger of account No. 3658 on transfer from a fixed deposit receipt without any credit voucher standing in the name of Tusharkanti Deb (P.W.4) who had made no such deposit and for having forged the withdrawal slip (Ext. 7) for Rs. 5,000/-. He was also charged u/s 467 read with Section 471 and u/s 468 of the Code for having fraudulently used as genuine Ext, 7 knowing it to be a forged document and for having forged Ext. 7 intending that it would be used for purpose of cheating. In addition, the Respondent faced a charge u/s 477-A of the Code for falsifying the Savings Bank Ledger and the withdrawal slip wilfully with intent to defraud. 3. The Inspector of Police of the C.B.I. received information about the commission of these offences and accordingly a first information report was drawn up and forwarded to the Sub-Inspector of the C.B.I. (P.W. 15) stationed at Rourkela for the purpose of investigation. P.W. 15 took up the investigation in the course of which specimen signatures of the Respondent were taken for the purpose of comparison with the disputed writings which were examined by the Assistant Government Examiner of questioned documents (P.W. 14). On the completion of investigation, the Respondent was prosecuted on the basis of a charge-sheet submitted by the investigating agency. His plea was one of innocence and denial of the allegations made against him. 4. On the completion of investigation, the Respondent was prosecuted on the basis of a charge-sheet submitted by the investigating agency. His plea was one of innocence and denial of the allegations made against him. 4. While the prosecution examined fifteen witnesses to bring home the charges, the Respondent did not examine any witness in his defence. The trial court did not accept the prosecution case with regard to the charge u/s 477-A of the Code, but held the Respondent guilty of the other charges and convicted and sentenced him as indicated above. On appeal the learned Additional Sessions Judge took a different view and held that none of the charges had been brought home to the Respondent. 5. While Mrs, Padhi has submitted on behalf of the Appellant that the order of acquittal recorded by the learned additional Sessions Judge is wrong and unfounded, it has been contended on behalf of the Respondent by Mr. Mohapatra that as the view recorded by the appellate Judge are reasonably possible, they are not to be dislodged in an appeal against acquittal. 6. Law is well-settled that in an appeal against an order of acquittal the power of the High Court to re-assess the evidence and reach its own conclusion is as extensive as in an appeal against an order of conviction. But where two reasonable conclusions can be drawn on the evidence on record, the High Court should as a matter of judicial caution, refrain from interfering with the impugned order of acquittal recorded by the court below, if the main grounds on which it has based its order acquitting the accused are reasonable and plausible and may not entirely and effectively be dislodged or demolished. Even if the High Court does not agree with the views taken by the court below and may even be prepared to take another view that cannot be a ground to reverse a judgment of acquittal. If the view taken by the lower court is not perverse and is borne out by the evidence on record and is reasonably possible, no interference is called for in an appeal against acquittal. If the view taken by the lower court is not perverse and is borne out by the evidence on record and is reasonably possible, no interference is called for in an appeal against acquittal. In an appeal against acquittal against the judgment of an appellate court reversing the finding of guilt recorded by the trial court, the same principles have to be kept in mind and there should be no separate standard in approaching the case because at an earlier stage, an order of conviction had been recorded by the trial court. 7. Having considered the contentions raised by the learned Counsel for both the sides in the light of the evidence on record and the findings recorded by the learned trial and appellate Judges and keeping in mind the aforesaid propositions of law while dealing with an appeal against acquittal, I see no case for interference for the brief reasons to follow. 8. The facts of the prosecution case in details and the evidence have been set out in the judgments of the courts below and need not be re-stated. 9. The trial court has found that P.Ws. 3, 5, 7, 9 and 12, who have been examined to identify the writings of the Respondent 'have not ventured to cast their opinion regarding the authorship of the handwritten portion of the questioned withdrawal slip' (Ext. 7) and P.W. 12 has categorically expressed his inability to identify the handwritings. The trial court has gone on to say that P.W. 2, the manager, who had identified the handwritten portion of Ext. 7 as having been made by the Respondent has testified that Ext. 7 does not bear the normal writing of the Respondent and the style of writing differs from person to person. According to him, his intuition had led him to formulate his opinion as to the authorship of Ext. 7. 10. As observed by the trial court and the learned appellate Judge, there was no clear and cogent evidence about the authorship of the posting of deposit of Rs. 6,300/- made in the Ledger Folio (Ext. 4/1) and the Handwriting Expert has expressed his inability to say as to whether it was in the hand-writing of the Respondent. 11. 7. 10. As observed by the trial court and the learned appellate Judge, there was no clear and cogent evidence about the authorship of the posting of deposit of Rs. 6,300/- made in the Ledger Folio (Ext. 4/1) and the Handwriting Expert has expressed his inability to say as to whether it was in the hand-writing of the Respondent. 11. According to the trial court, the dispute could only be resolved with the aid of the opinion of the Expert (P.W. 14) whose opinion was that the writings in Ext, 7 were in the hand of the Respondent as the writings tallied with the specimen writings of the Respondent. Not oblivious of the settled principle that normally the court looks for corroboration of an expert's evidence especially as to handwriting, as observed by the Supreme Court in Murarilal v. State of M.P. AIR 1980 S.C. 531 , the trial court committed a fallacy by not seeking any corroborative evidence with regard to the writings of the Respondent in Ext. 7 and holding that the opinion of the expert had found corroborative evidence from certain pieces of conduct of the Respondent enumerated by the trial court in paragraph 5 and the following paragraphs of the judgment which, by themselves, would not manacle the Respondent inescapably and would not warrant a conclusion of his guilt, but might at best suggest some omissions and commissions. 12. In the absence of clear proof pointing to the guilt of the Respondent, he could not be saddled with any criminal responsibility on the basis of an assumption that the crime could not have been committed successfully by an outsider as the withdrawal slip (Ext. 7) would not have been honoured but for the credit entry for Rs. 6,300/- made as per Ext. 4/1 which was only accessible to the bank employees. In my view, the trial court was not justified in reaching the following conclusion against the Respondent based on surmises and suppositions: The crime, therefore, could not have been committed by anyone other than a Bank employee and on the day in question as stated by P.Ws. 2, 3, 5, 7, 9 and 11, he had access to the Ledger bearing Ext. 4/1 and that Ledger Account number was of Counter No. 1. True it is that there is no proof that he had been the maker of that credit entry of Rs. 2, 3, 5, 7, 9 and 11, he had access to the Ledger bearing Ext. 4/1 and that Ledger Account number was of Counter No. 1. True it is that there is no proof that he had been the maker of that credit entry of Rs. 6,300/- but his association with another employee of the Branch for processing Ext. 7 cannot be excluded, for his unauthorised preparation of Ext. 3 without which also Ext. 7 could not have been honoured. Under the circumstances, the fact that he had been a Bank employee would stand as a circumstance to incriminate him. 13. The learned appellate Judge has referred to the findings recorded by the trial court about the paucity of evidence from the side of the prosecution through its witnesses minus the evidence of the Handwriting Expert referred to above with regard to the authorship of the writings in Ext. 7 and has correctly looked for corroboration with regard to the writings in Ext. 7 purported to be those of the Respondent in the light of the principles laid down by the Supreme Court in Magan Bihari Lal Vs. The State of Punjab Arjan Singh and Others Vs. Hazara Singh, and Murarilal v. State of M.P. AIR 1980 S.C. 531 (supra). As held in the last-mentioned case, 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 never be acted upon unless substantially corroborated, but having regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution and in appropriate cases, corroboration may be sought. As observed by their Lordships of the Supreme Court, the science of identification of finger print has attained more perfection while the science of identification of handwriting is not so perfect and there is risk of an incorrect opinion. 14. In a case of this nature, no order of conviction should be recorded solely on the testimony of the Expert with regard to the alleged writings of the Respondent in Ext. 7. The learned appellate Judge has considered the halting and hesitating evidence of the prosecution witnesses other than P.W. 14 with regard to the authorship of the writings in Ext. 7. The learned appellate Judge has considered the halting and hesitating evidence of the prosecution witnesses other than P.W. 14 with regard to the authorship of the writings in Ext. 7 and having taken note of the findings recorded by the trial court based on conjectures, has held, for the reasons recorded in the impugned judgment, that there is no evidence regarding the authorship of Ext. 4 indicating the deposit of Rs. 6,300/- and has correctly concluded that it has not been established by the prosecution legally and by satisfactory evidence that the Respondent was the author of the writings in the withdrawal slip (Ext. 7). The learned Counsel for both the sides are agreed that if this finding recorded by the appellate court with regard to the writings on Ext. 7 is accepted, the charges cannot be said to have been established. A reasonable view has been taken by the learned appellate Judge that it has not been established that writings in Ext. 7 were those of the Respondent. 15. The appeal fails and is dismissed. Final Result : Dismissed