JUDGMENT Arun Kumar Goel, J. : Both these appeals have arisen out of the same judgment passed by the learned Special Judge, Solan in Sessions trial No.21-S/7 of 1990 dated 25.11.1991. Accordingly, these have been heard together and are being disposed of by a common judgment. 2. Arun Sood appellant was working as Branch Manager of United Commercial Bank (hereinafter referred to as the bank) during the period 15.7.1982 to 2.4.1986. Sukh Ram appellant was working as Gram Sewak posted at Nagaon, Tehsil Arki, District Solan, H.P. during lie period April, 1982 of 1986. 3. Prosecution case in brief against both these appellants was that both of them entered into a criminal conspiracy and in furtherance thereof Sukh Ram filled in loan application in the sum of Rs, 2,000/- for land development activity as well as for grant of Rs. 1,000/- as subsidy in the name of one Smt. Kalawati (PW -2). This application of Kalawati is stated to have been thumb-marked by her. On the recommendation of Sukh Ram appellant, Block Development Officer, Kunihar accorded sanction of Rs. 900/- as subsidy which was forwarded to the bank at Darlaghat. In the background, loan documents came to be executed on 11.10.1983. All these documents purported to have been thumb-marked by said Smt. Kalwati. One Nanku (PW-3) purportedly stood surety by executing letter of guarantee for due re-payment of this loan etc. by Kalawati. All the documents in this case were filed in the hand of Sukh Ram appellant. On the basis of these documents, Arun Sood appellant in his capacity as Branch Manager had sanctioned as well as released the loans of Rs. 1,800/- and this amount was transferred to the Savings Bank Account No.875 of Kalawati after having observed formalities of the bank. Necessary transfer voucher was prepared, checked and passed by said Arun Sood, whereas thumb-mark of Kalawati on the back of this transfer Voucher had been verified by Sukh Ram appellant. The amount of this loan was withdrawn on two withdrawal forms in the sum of Rs. 900/- each on 12.10.1983 and 20.10.1983 from the Saving Bank Account of Kalawati. Again, both the withdrawal forms were prepared by Arun Sood which purportedly had the thumb-impressions of Kalawati. On both occasions, these thumb-marks had been verified by Arun Sood. The amount of this loan was withdrawn on two withdrawal forms in the sum of Rs. 900/- each on 12.10.1983 and 20.10.1983 from the Saving Bank Account of Kalawati. Again, both the withdrawal forms were prepared by Arun Sood which purportedly had the thumb-impressions of Kalawati. On both occasions, these thumb-marks had been verified by Arun Sood. Sukh Ram appellant is further stated to have submitted an application to the Block Development Officer, Kunihar informing that since the land development work has been completed by Kalawati, the amount of subsidy needs to be released in her favour. Release of subsidy was sanctioned, however, subject to payment of Rs. 310/- being recoverable from her which amount was deposited on 21.11.1983 in the account of Block Development Officer at Darlaghat branch of the bank. Pay- in-slip of this amount was in the hand of Arun Sood, but it had not been thumb-marked by anybody. In these circumstances, a sum of Rs. 1,000/- being the subsidy amount was transferred to Saving Bank Account of Kalawati by Arun Sood which was withdrawn on 21.11.1983 itself on a withdrawal form again purported to be thumb-marked by Kalawati. Receipt showing disbursement of amount of subsidy to Kalawati was prepared by Arun Sood in the presence of his other co-accused Sukh Ram and one Tulsi Ram. In addition to these amounts, a further sum of Rs. 500/-was also released in favour of Kalawati for plantation etc. by the Block Development Officer, Kunihar on the recommendation cf Sukh Ram appellant. This amount was also transferred to her Savings Bank Account No.875. This amount was also withdrawn on 14.8.1985. Another application purported to have been made by Gulaba Ram (PW -5) was also prepared and submitted by Sukh Ram appellant to the Block Development Officer for grant of Rs. 2,000/- for land development as well as for the grant of subsidy of Rs. 1,000/- in the name of Gulaba Ram. This application was certified by Sukh Ram appellant under his signatures. Project Officer, Solan forwarded this case to Darlaghat branch of the bank where necessary loan documents were prepared en 8.2.1983. Rama Ram (PW-3) was shown to be the surety for repayment of loan" which was alleged to have been raised by Gulaba Ram. A sum of Rs. This application was certified by Sukh Ram appellant under his signatures. Project Officer, Solan forwarded this case to Darlaghat branch of the bank where necessary loan documents were prepared en 8.2.1983. Rama Ram (PW-3) was shown to be the surety for repayment of loan" which was alleged to have been raised by Gulaba Ram. A sum of Rs. 2,000/- was sanctioned by way of loan and was disbursed in cash by Arun Sood on 20.3.1982 to said Gulaba Ram and vouchers were prepared, checked and passed by Branch Manager i.e. Arun Sood appellant. On 25.2.1983, application for release of subsidy is stated to have been submitted by Sukh Ram in favour of the Gulaba Ram stating that the land development work has been completed by Gulaba Ram, therefore, subsidy be released. Sanction for release of subsidy was accorded by the authority concerned on 5.3.1983 and on 18.5.1983, the same was disbursed in cash by Arun Sood appellant to a person purported to be Gulaba Ram. Receipt showing the release of this subsidy to Gulaba Ram was witnessed by Sukh Ram appellant as well as by one Ram Saran. 4. In the aforesaid facts as well as circumstances and background, on a source information F.I.R. It came to be registered on 30.1.1988 with D.S.P.E. Chandigarh against both the appellants under different Sections of the IPC as well as Sections 5(1 )(c), 5(1 )(d) and 5(2) of the Prevention of Corruption Act, 1947 During the course of investigation it was revealed that in furtherance of a criminal conspiracy which had been hatched by both the appellants, they got the two loans sanctioned as well as amount of subsidy etc. in the names of Kalwati and Gulaba Ram, whereas, in fact, both of them had never obtained either the loan or subsidy and for that purpose any other amount. In fact, prosecution case in this behalf is that both of them had never applied for the grant of any such loan subsidy, as such there arose no question of sanction and /or as release thereof. Investigation further revealed that thumb-impressions found on different documents which were alleged to have been executed by Kalawati were found to be those of Sukh Ram, appellant. Similar, Nanku had never stood surety was also revealed by the investigation in respect of the loan of Kalawati. 5. Investigation further revealed that thumb-impressions found on different documents which were alleged to have been executed by Kalawati were found to be those of Sukh Ram, appellant. Similar, Nanku had never stood surety was also revealed by the investigation in respect of the loan of Kalawati. 5. It the case of loan allegedly raised by Gulaba Ram, Rama Ram was revealed to have not stood surety nor had executed any argument of guarantee and the said surety was found to be illiterate and similarly Tulsi Ram, the person who, according to prosecution, had witnessed the disbursement of amount of subsidy was also found to be illiterate whereas Ram Saran, who was a witness regarding disbursement of subsidy to Gulaba Ram was not traceable. Both the appellants were found to have forged various documents regarding the loan and subsidy and having used those as genuine while sanctioning and disbursing the amount of loan and subsidy resulting in their having mis- used and abused their positions as public servants; fraudulently and dishonestly obtained pecuniary/advantages for themselves. 6. After conclusion of the investigation both the appellants were arrested, challaned and were sent to trial before the trial Court. 7. Trial Court being satisfied that there is primafacie material to proceed against the appellants, framed charges against Arun Sood under Section 120-B,420,465, 467, 468, 471 and 477-A IPC and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act. On the other hand, appellant Sykh Ram was charged under Sections 120-B, 420, 467,465, 468 and 471 IPC and Section 5(2) read with Section 5(l)(d) of the Prevention of Corruption Act, 1947. Both the appellants pleaded not guilty and claimed trial. 8. Prosecution case mainly hinges around the statements of Nanku (PW-2), Rama Ram (PW-3), Gulaba Ram (PW-4), Kalawati (PW-5), Tulsi Ram (PW-8), Darshan Singh, Inspector Finger Print Expert (PW-13), M,L. Sharma, Deputy Examiner of Questioned Documents, Shimla (PW-19) as well as on the loan applications, loan/guarantee documents purported to have been executed by the appellants and the opinion submitted by the Experts viz. PWs 13 and 19. 9. Shri T.R. Chandel, learned counsel for Arun Sood appellant has submitted that his client has been involved in this case with the aid of Section 120-B IPC i.e. conspiracy. Once he is able to clear the mist in this behalf, then according to Mr. PWs 13 and 19. 9. Shri T.R. Chandel, learned counsel for Arun Sood appellant has submitted that his client has been involved in this case with the aid of Section 120-B IPC i.e. conspiracy. Once he is able to clear the mist in this behalf, then according to Mr. Chandel, his client is simply a victim of circumstances and had not been connected much less privy to the alleged acts of conspiracy. It was further submitted by Mr. Chandel that no withdrawal had been made by his client and trick, if any, was played by the persons either at Solan or at Kunihai1. Once it is held so, then the possibility of the same having been repeated in the bank cannot be completely ruled out. It was further submitted by Mr. Chandel the explanation given by his client looking to the fact that the instant incident is of the year 1982-83. In the ordinary course of things, Arun Sood appellant could not remember as to what happened eight years ago. It was submitted by Mr. Chandel that his client was made to believe by Sukh Ram that the recipients of the amounts sanctioned and disbursed were tie same persons to whom those were disbursed from time to time, as such acting in a bonafide manner, Arun Sood appellant might have attested the thumb-impressions/signatures of loanees and thereafter having not only transferred but released the amounts to the persons concerned. He also submitted that for such a paltry sum of Rs. 6300/- that too for the benefit of someone else, his client would not put his service career into a jeopardy. It was further submitted that once the charge of conspiracy goes, there is no evidence whatsoever to connect his client with the commission of any offence. In the circumstances of the case, Arun Sood appellant needs to be acquitted because there is ground to surmise that he is not guilty of any offence and the possibility of his having been duped cannot be completely ruled out. So, in either case benefit must go to the said appellant. Surmise in this case was urged to be given liberal benefit to the accused. So, in either case benefit must go to the said appellant. Surmise in this case was urged to be given liberal benefit to the accused. Lastly, it was urged that no act of forgery had been attributed to Arun Sood appellant, who at the most can be termed to be negligent/irregular in the discharge of his duty or may have committed official impropriety, but such acts by themselves would not tantamount to commission of offences alleged against him once the plea of there being no conspiracy is accepted. 10. On the other hand, Mr. Deepak Gupta, learned counsel for Sukh Ram appellant submitted that so far his client is concerned, there is nothing to connect much less show either directly or remotely that there was any meeting of minds in any manner whatsoever so as to bring home the charge of conspiracy between his client and Arun Sood appellant. It was further submitted that while denying his signatures/thumb-impressions on the documents, Arun Sood appellant had admitted those on the documents and in this behalf reliance was placed on different statements of the prosecution witnesses. It was further urged by Mr. Gupta that so far loan applications are concerned, those were of genuine persons viz. Kalawati and Gulaba Ram and as such there is no question of any offence having been committed by his client. Lastly, it was submitted by Mr. Gupta that the sample wittings thumb- impressions of his client were taken during the course of investigation in the presence of PW-12, Superintendent, Block Development, Panch had at Sarahan vide Ext. PW- 12/A to 12/E when Shri J.P. Sharma, Block Development Officer was also present. Further specimen writing of Sukh Ram appellant were obtained by Prem Lal, Inspector (PW-1) in the presence of Mr. C.P.Jain. This was impermissible in law and once this evidence is excluded, there is no material on the basis of which his client can be connected with the commission of the alleged offences for which he was charge much less of conspiracy. 11. The case of Sukh Ram is being dealt with first of all. It has come in evidence that so far he is concerned, his thumb-impressions of both hands and writings and specimen signatures were obtained by the Investigation Officer (PW-15) which position is not in dispute. 11. The case of Sukh Ram is being dealt with first of all. It has come in evidence that so far he is concerned, his thumb-impressions of both hands and writings and specimen signatures were obtained by the Investigation Officer (PW-15) which position is not in dispute. Rather it is the case of the prosecution itself and it has made an attempt to sustain the same by placing reliance on such sample writings as well as thumb-impressions obtained from this appellants. Not only mis, but in order to further support its case, the prosecution has also relied upon the statements of PWs.13 and 19 i.e. Finger Print Expert and Handwriting Expert, respectively. 12. In this behalf reference can usefully be made to the provisions of Sections 45 and 73 of the Indian Evidence Act, 1872. Thus, it has to be seen as to who can take specimen writings/signatures/thumbs-impressions for making comparison between the admitted and questioned handwriting /thumb impressions. In the instant case, the specimen writings/thumb- impressions/signatures could be directed to be obtained by the court for the purpose of enabling it to compare such writings with the writings/thumb-impressions alleged to have been writings/thumb-impressions alleged to have been written /made by such person. This goes to show that this could only be done in some proceedings pending before the Court. This further leads to the conclusion that where the case is still being investigated and no proceedings are pending in any court, the person concerned (appellants in the present case) cannot be compelled to give his specimen writings etc. Thus, specimen writings/thumb-impressions etc. in the case in hand of appellant Sukh Ram which were taken by PW -15 before different officials of the bank as well as of the Block at Pachhad when no inquiry or trial was pending against him in a court of law, were clearly unwarranted as envisaged under Section 73 of the Indian Evidence Act. Simply because no objection was raised by Sukh Ram appellant and his having remained silent would not make such act of obtaining signatures/writings/thumb-impressions admissible to be read in this case and thus would not advance the case of the prosecution. 13. Besides this in the case of the loan applications, cases of Kalawati and Sukhdev had been processed in the office of Block Development Officer, Kunihar /Project Officer, Solan. 13. Besides this in the case of the loan applications, cases of Kalawati and Sukhdev had been processed in the office of Block Development Officer, Kunihar /Project Officer, Solan. In these circumstances, once the evidence of Hand writing Expert/Finger Print Expert is excluded from the record, the very basis of the case against Sukh Ram is knocked down and accordingly the plea raised by Shri Deepak Gupta on behalf of Sukh Ram appellant deserves to be upheld. For taking this view, a reference can usefully be made to the judgment of Honble Supreme Court reported in (1994) 5 SCC 152, Sukhvinder Singh v. State of Punjab. 14. Now I advert to the case of Arun Sood, appellant. There is evidence of bank officials who have appeared as prosecution witnesses i.e. PW-1, 6 and 7 to show as to how and in what manner loaning was done in the cases sponsored by the Block under the Rural Development Agency Schemes (RUDA Loans). There is ample evidence on record to show that generally mass loaning was being done. After the cases had been received from the concerned agencies, the beneficiaries were being called either through letter or through Gram Sewak. Thereafter on identification of such beneficiaries by the Gram Sewak loans were being disbursed. In these circumstances, it cannot be said that both Arun Sood and Sukh Ram appellants were confiderates and associates in the conspiracy for which they were charged and held guilty by the trial Court. Further no evidence has been examined by the prosecution to suggest that the appellant Arun Sood had any motive to indulge in this exercise which may even result in his losing the job besides criminal action against him in accordance with law. It may also be appropriate to mention that it is not the prosecution case that Arun Sood appellant got any benefit out of any part of the whole transaction. So far the plea of the learned Assistant Advocate General that the debit and credit vouchers were prepared by Arun Sood is concerned it does not advance the case of the prosecution in any manner whatsoever. So far the plea of the learned Assistant Advocate General that the debit and credit vouchers were prepared by Arun Sood is concerned it does not advance the case of the prosecution in any manner whatsoever. Case as put up by the prosecution against Arun Sood and Sukh Ram appellants was that the letter was known to the former and thus, his having been duped by Sukh Ram in the facts and circumstances of the case cannot be completely ruled out Needless to point out that theory of innocence in a given situation can be fairly equated with the theory of guilt and even if maximum allowance is given to the prosecution, the benefit would go to the accused concerned, i.e. the appellants in the present case. 15. Another reason for favorably considering the submissions made on behalf of the appellants is that withdrawal forms have not been proved to be in the hand of appellant Arun Sood because of the Handwriting Expert being silent on this aspect of the case. 16. Admittedly in the present case there is no direct evidence of conspiracy that is alleged to have been hatched between both the appellants and the entire case of the prosecution hinges around the circumstantial evidence. Looking to the quality of evidence lead in the present case, it cannot be said that there was any act which can -be considered to be link in the chain to complete the same for the purposes of accomplishing the conspiracy with which the appellants were charged. Besides this, in the instant case, prosecution has failed to cover the distance between may be true and must be true that too by leading cogent, convincing and trust-worthy evidence. 17. From whatever angle the case of the prosecution is examined, it is evident that the prosecution has miserably failed to bring home the guilt against this appellant also and, therefore, conviction and sentence imposed upon him deserves to be set aside. 18. As a result of the aforesaid discussion, Criminal Appeal No. 257 of 1991 filed by Sukh Ram and Criminal Appeal No. 258 of 1991 filed by Arun Sood are accepted and both the appellants are acquitted of the charges for which they were tried by the trial Court. Record of the case shows that the amount of line has been deposited by both the appellants which is ordered to be refunded to them. Record of the case shows that the amount of line has been deposited by both the appellants which is ordered to be refunded to them. Since both the appellants are on bail, their bail bonds are discharged.