Saraswathi Dasarathan v. The State of Mysore. — 1999 DIGILAW 1543 (MAD)

Judgment.- At atrial held in Sessions Case No. 30 of 1964 before the Second Additional Sessions Judge, Mysore, the appellant was convicted for offences under sections 409, 471 and 477-A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for six months on each count with a direction to run the sentences concurrently. She was further sentenced to pay a fine of Rs. 500 for the offence under section 409, Indian Penal Code and in default of payment of fine to undergo rigorous imprisonment for one month. Against this order of conviction and sentence the appellant has appealed to this Court. The facts, which gave rise to the charges against the appellant, are briefly these: The appellant was working in the Head Post Office at Mysore as a Savings Bank Counter Clerk during the year 1960. On 7th July, 1960, she took an advance of Rs. 9,500 from P.W. 16, K.C. Thimmayya, who was working as a Treasurer in the Post Office. As per the S.B. Journal of that date, Exhibit P-7, she accounted for the money she received from P.W. 16. In Exhibit P-7, a sum of Rs. 800 was shown as withdrawn by one Farid Bi from her S.B. Account No. 60546. Similarly on 1st November, 1960, she received certain sums of money from the depos;tors and after payments to various persons, she returned a sum of Rs. 2,403 to P.W 17, who was the Treasurer, as per the details found in the S.B. Journal, Exhibit P-9 wherein Rs. 200 was shown as the amount withdrawn by the said Farid Bi. On 11th November, 1960, she accounted for the money she received as per the S.B. Journal of that day, Exhibit P-11, wherein a sum of Rs. 12 was shown as the amount withdrawn by Mary Susan, P.W. 5, from her S.B. Account No. 73608. The prosecution case was that the accused forged the signatures of Farid Bi in the vouchers Exhibits P-8 and P-10 and also forged the signature of Mary Susan in the voucher Exhibit P-13 and misappropriated Rs. 800, Rs. 200 and Rs. 12 respectively and in order to cover up this misappropriation, she falsified the accounts of the Post Office. The alleged misappropriation and falsification of accounts were not detected for a long time. 800, Rs. 200 and Rs. 12 respectively and in order to cover up this misappropriation, she falsified the accounts of the Post Office. The alleged misappropriation and falsification of accounts were not detected for a long time. In the month of December, 1961, it was disclosed, while making entries in the pass-book of Farid Bi, that there was difference in the balance. The Post-master then reported this fact to the Senior Superintendent of Post Offices, P.W. 2, G.V.S. Rao. He directed the Assistant Superintendent of Post Offices P.W. 8, Anant to hold an enquiry. He conducted an enquiry and found large number of discrepancies in many S.B. accounts including the accounts of Farid Bi and Mary Susan. He sent a detailed report Exhibit P-65 to the Senior Superintendent of Post Offices. On the basis of this report, the appellant was. suspended on 19th December, 1961. According to the prosecution, the accused appeared before P.W. 2 on 18th January, 1962 and made the statement Exhibit P-23 voluntarily confessing that she misappropriated Rs. 800, Rs. 200 and Rs. 12 on 7th July, 1960, 1st November, 1960 and 11th November, 1960 respectively and forged the signatures in the voucher forms and falsified the accounts. On 29th January, 1962, the accused appeared before P.W. 8 and made the statement Exhibit P-66 voluntarily and deposited Rs. 1,397. In the meanwhile, at the instance of P.W. 2, P.W. 1, Srinivasa Iyengar, Inspector of Post Offices, lodged a complaint in Laskar Police Station, Mysore on 13th January, 1962 against the accused. After due investigation, charge-sheet was filed against the accused on 17th August, 1964. The defence of the accused mainly was one of the denial. She pleaded that whatever monies she was entrusted with on the relevant dates, she accounted for the same. According to her, she did not forge the signatures on the relevant vouchers, nor did she falsify the accounts in this behalf. Her statements, Exhibit P-23 and’ P-66 were taken by coercion, threat and inducement. Finally she pleaded that she had not misappropriated any money and had not committed the offences alleged against her. The trial Court, mainly relying upon the confession made by the accused before P.Ws. Her statements, Exhibit P-23 and’ P-66 were taken by coercion, threat and inducement. Finally she pleaded that she had not misappropriated any money and had not committed the offences alleged against her. The trial Court, mainly relying upon the confession made by the accused before P.Ws. 2 and 8, the evidence of the handwriting expert and some other circumstances, was of the view that the accused forged the signatures of Farid Bi and Mary Susan in the vouchers and misappropriated the various amounts. The Trial Court, further held that the accused, in order to cover up her misdeeds, falsified the accounts of the post office. Aggrieved by the decision of the trial Court, the accused has preferred the present appeal. Mr. Keshava Iyengar, the learned Counsel for the appellant, raised before me three points, viz.: “1. That on the facts found, the offences, with which the accused was charged, have not been established; 2. That the trial Court was in error in holding that the evidence of the handwriting expert was a conclusive piece of evidence; and 3. That the trial Court has wrongly relied upon the confession made by the accusedbefore P.Ws. 2 and 8 and as that confession was not made voluntarily, it is irrelevant under section 21 of the Evidence Act.” On the relevant dates, the accused worked as S.B. Counter Clerk. When withdrawals of monies are to be made, the depositor has to present the pass-book together with the voucher, signed at two places, stating therein the amount sought to be withdrawn. The S.B. Counter Clerk is, under the Rules, required to make entries in the voucher stating the amount at the credit of the depositor and the amount that remains as balance to the credit of the depositor, after noting the amount of withdrawal. The S.B. Counter Clerk prepares the journal and sends the voucher and the pass-book along with the journal to the Ledger Clerk. The Ledger Clerk is expected to verify the entries in the journal with reference to the pass-book and the voucher. He has to verify the signatures in the voucher with the specimen signature of the depositor and after making necessary entries, he sends all the papers to the Assistant Post-master. The duty of the Assistant Post-master is to satisfy himself that all the entries made are correct and then passes the voucher for payment. He has to verify the signatures in the voucher with the specimen signature of the depositor and after making necessary entries, he sends all the papers to the Assistant Post-master. The duty of the Assistant Post-master is to satisfy himself that all the entries made are correct and then passes the voucher for payment. Then the S.B. Counter Clerk makes payment. On 7th July, 1960 a sum of Rs. 800 has been debited by the accused to the account of Farid Bi. In the journal of that day (Exhibit P-7) this amount is shown as withdrawn from her S.B. account. In the ledger of that day, there is no entry in respect of this amount. Doreswamy, P.W. 13, who was the Ledger Clerk on that day, has stated that he did not receive the pass-book and the voucher and therefore, he did not make an entry in the ledger. The Assistant Post-master on that day, has checked every entry and initialled each entry, indicating that the withdrawal of Rs. 800 was in accordance with the Rules. He has entered the balance of the account of Farid Bi and initialled in the last column of the journal. One Bhagavanta Rao was the Assistant Post-master on that day and he is now dead. His statement, Exhibit P-21, recorded by the Postal Authorities, shows that he signed the relevant papers relating to the withdrawal of Rs. 800 from the account of Farid Bi, after satisfying himself that the transaction was genuine. It is seen in Exhibit P-7 that some items are scored out and each one of those items has been initialled by the Assistant Post-master. There is no entry in the pass-book Exhibit P-6 to evidence withdrawal of Rs. 800 on that day by Farid Bi. After that date some amounts have been deposited on various dates to the account of Farid Bi and they are noted in the pass-book and the ledger. In order to avoid detection, what appears to have been done is that the entries in the S.B. Journals that were sent to the Audit Office have been altered. On 1st November, 1960 also a sum of Rs. 200 has been debited in the S.B. Journal of that day to the account of Farid Bi, indicating that the sum was withdrawn by her with reference to the voucher Exhibit P-9. On 1st November, 1960 also a sum of Rs. 200 has been debited in the S.B. Journal of that day to the account of Farid Bi, indicating that the sum was withdrawn by her with reference to the voucher Exhibit P-9. T.C. Radhakrishna, P.W. 14, was the Ledger Clerk on that day. There is an entry in the ledger, indicating this transaction. But Radhakrishnan’s evidence is that he did not make this entry. According to him, one Haradayya and another Shanta worked as Ledger Clerks. He is Unable to say as to who has made the entry in the ledger regarding this transaction. One Rangaswamy Iyengar, who is dead, was the Assistant Post-master on that day and the records in this case goes to show that he has signed the relevant papers connected with the transaction as being correct. His statement, Exhibit P-22, recorded during inquiry by the postal authorities, reveals that he checked every paper relating to this transaction and certified on the voucher payment of the money. The only lacuna about this transaction is that there is no entry in the pass-book. On 1st November, 1960, Nagabhushana, P.W. 15, was deputed to work as S.B. Counter Clerk along with the accused. Although this witness has been examined, the prosecution has omitted to elicit from this witness what work actually he turned out in the S.B. branch. This has been done obviously to hush up some facts. Farid Bi has not been examined in this case and one Fatimunnisa, granddaughter of Farid Bi has been examined. She does not throw any light on these two transactions. The transaction relating to 11th November, 1960 is in regard to an amount of Rs. 12 debited to the account of Mary Susan. This transaction is not entered in the ledger of that day. P.W. 15 Nagabhushana, who worked on that day as Ledger Clerk, has stated that he did not come across with the Journal Exhibit P-11 or the pass-book Exhibit P-12 and the voucher Exhibit P-13. Some items in Exhibit P-11 have been scored off and Nagabhushana is unable to say who has done that. But he is positive that the balance in Exhibit P-11 is struck by the Assistant Post-master. According to him, the entries are checked and each entry is signed by the Postmaster. This transaction relates to the S.B. account of Mary Susan. Some items in Exhibit P-11 have been scored off and Nagabhushana is unable to say who has done that. But he is positive that the balance in Exhibit P-11 is struck by the Assistant Post-master. According to him, the entries are checked and each entry is signed by the Postmaster. This transaction relates to the S.B. account of Mary Susan. She has deposed that she did not withdraw Rs. 12 on 11th November, 1960, nor did she present the voucher Exhibit P-13. It is argued for the prosecution that the accused, who was the S.B. Counter Clerk, on the relevant dates, forged the signatures of Farid Bi in Exhibits P-8 and P-10 and that of Mary Susan in Exhibit P-13, misappropriated Rs. 800, Rs. 200 and Rs. 12 respectively and falsified the accounts. Further, it is contended that because no entries in the pass-books regarding these transactions were made, which was the duty of the accused, the obvious inference is that the accused must have misappropriated the said sums of money. The signatures of Farid Bi in the vouchers Exhibits P-8 and P-10 are said to be forged. By the time this case came to be detected, Farid Bi was dead. Her grand-daughter Fatimunnisa was not in a position to admit or deny the genuineness of these signatures. No witness examined on behalf of the prosecution,including those who were acquainted with the hand-writing of the accused has stated that the signatures found therein were in the hand-writing of the accused. With regard to Exhibit P-13, Mary Susan has denied the signatures therein as hers. The prosecution, therefore, has mainly relied upon the evidence of the handwriting expert. Before considering that evidence, it is necessary to examine a few facts and see whether those facts give rise to an inference that the accused was the person, who forged the signatures, falsified the accounts and misappropriated the amounts. According to rules, the S. B. Counter Clerk, on presentation of the withdrawal form, viz., the voucher and the passbook, has to make necessary entries in the passbook and on the voucher and then pass on them to the Ledger Clerk, who in turn, after verification, sends the papers to the Assistant Post-master. The case for the prosecution is that the pass-books relating to these transactions were not produced by the parties. The case for the prosecution is that the pass-books relating to these transactions were not produced by the parties. In spite of that the accused has managed to show in the accounts of the post office that the amounts in question were withdrawn and thereby misappropriated the amounts. P.W. 8, who conducted the inquiry, has stated in his report Exhibit P-65 that in reply to a reference received from the Audit Office asking for reconciliation of the difference of Rs. 800 in the balance relating to Farid Bi’s account, the Post-master, Mysore Head Office, replied, vide his letter No. SB/Misc. dated 14th November, 1960, as follows: “Since the balance has been erroneously noted as Rs. 4,083-77, instead of Rs. 3,283-77 after a withdrawal of Rs. 15 of the Account No. 60546 and the balance after a withdrawal of Rs. 200 on 1st November, 1960, the balance is Rs. 3,083-77. The pass-book is called for and verified. The W/P is also sent herewith.” This letter was sent by the Post-master after verification of the pass-book of Farid Bi. It is obvious that a pass-book said to be that of Farid Bi must have been presented for withdrawal of the amounts. This letter, according to the prosecution was sent by the accused in her writing forging the signature of the Post-master with a view to screen herself. There is not even an iota of evidence to indicate that this letter was written by the accused. The prosecution has relied upon the confession made by the accused before P.W. 8, wherein she has stated that she wrote this letter. Whether the confession made by the accused is admissible or not will be considered later. If really the accused wrote this letter, the prosecution in this case would not have failed to produce that letter to Court. No attempt has been made by the prosecution to find out whether this letter was written by the accused. This would have been the best evidence to implicate the accused with the commission of the offence. From the fact that this letter has been withheld by the prosecution, the only inference that could be drawn is that concerted effort has been made to screen some persons, who were responsible for the defalcation of the amounts. This would have been the best evidence to implicate the accused with the commission of the offence. From the fact that this letter has been withheld by the prosecution, the only inference that could be drawn is that concerted effort has been made to screen some persons, who were responsible for the defalcation of the amounts. As per the Rules and the practice, after the day’s Work all the relevant papers relating to the S.B. Branch used to be left in the custody of the Post-master and he used to send the papers to the Audit Office. On the dates in question, the Post-masters, who were on duty, have initialled every item and certified to the correctness of the transactions on the Journals, which were prepared by the accused. The Post-master, therefore, must have done the checking with reference to the ledger and the pass-books. Subsequently, it has transpired that the pass-books of Farid Bi and Mary Susan were not produced when these amounts were withdrawn. Therefore, it is contended by the prosecution that the accused must have forged the vouchers and without producing the pass-books, must have taken the signatures of the Post-masters. From the fact that the Post-masters have certified to the correctness of the withdrawal in the Journals and from the fact that with reference to the letter sent by the Audit Department, the Post-master concerned replied that he verified the pass-book and found that there was no discrepancy, it is clear that there must have been some duplicate pass-books on the basis of which, possibly, the accused made entries in them and also in the Journals. As per Rules and practice after the transaction of each day, as stated earlier all the relevant papers connected with the S.B. Branch used to be with the Postmaster. During the relevant period, Bhagavanta Rao and Rangaswamy Iyengar were the Assistant Post-masters. They were in custody of the S.B. returns after the transaction of each day. It is unlikely that the accused altered the figures in the returns submitted to the Audit Office. The persons, who were in custody, and the persons who sent the return, must have been responsible for these alterations. If that is so, the reasonable inference is that except the accused, others in charge of these documents, must have altered the figures, obviously to cover up the defalcation. The persons, who were in custody, and the persons who sent the return, must have been responsible for these alterations. If that is so, the reasonable inference is that except the accused, others in charge of these documents, must have altered the figures, obviously to cover up the defalcation. The postal officials, who were working during the relevant period and who were examined in this case, have all stated that the alterations in the figures in the returns have not been done by the accused. During the relevant period, Doraiswamy, P.W. 13, Radhakrishna, P.W. 14 and Shantha, P.W. 19 were the Ledger Clerks. Their duty was to check the signatures found in vouchers with reference to the genuine signatures of the parties and after satisfying the correctness of the entries in the vouchers and the pass-books, they had to send the papers to the Assistant Post-master. They have not done so, and their explanation is that they did not receive the pass-books and the vouchers relating to these tranasctions. Bhagavant Rao and Rangaswamy Iyengar, who were the Post-masters on the relevant dates, have stated in their statements that they certified the payments of the amounts in Exhibits P-8, P-10 and P-13 after satisfying the genuineness of the transactions. If, on this basis, the accused made the payments, to whomsoever it may be, she cannot be held liable for embezzlement of the amounts. The prosecution placed reliance on the evidence of the hand-writing expert Seetharaman, P.W. 4, to connect the accused with the offence. His evidence is that he examined the signatures of Farid Bi and Mary Susan found in Exhibits P-8, P-10 and P-13 with reference to the specimen signatures Exhibits P-27 to P-38 and P-39 to P-44, written by the accused at the instance of the Police and found that they were in the hand-writing of the same person. His examination disclosed that the signatures in Exhibits P-8, P-10 and P-13 were not in the hand-writing of Farid Bi and Mary Susan on comparison with their genuine signatures. The accused, according to the prosecution, has forged the signatures on Exhibits P-8, P-10 and P-13, keeping the model signatures. If that is so, it is simulated forgery. Simulated forgery is only an imitation or a copy of the broad features of genuine signatures. The accused, according to the prosecution, has forged the signatures on Exhibits P-8, P-10 and P-13, keeping the model signatures. If that is so, it is simulated forgery. Simulated forgery is only an imitation or a copy of the broad features of genuine signatures. In this type of forgery, the forger keeps the model before him and tries to imitate the main or the obvious features of the writing as closely as possible according to his ability and skill. There is no evidence that the accused had any models of the signatures of Farid Bi and Mary Susan, nor is there any direct proof that she forged these signatures. The evidence of a hand-writing expert can never be conclusive, because it is after all an opinion evidence. The prosecution mainly relied upon the confession said to have been made by the accused. The learned Sessions Judge has treated this evidence as crucial in the case and based his conviction mainly on this. The accused has admitted having made the statements Exhibits P-23 and P-66. But her contention was that the statements were taken by P.Ws. 2 and 8 by inducement, threat and promise. When she was examined under section 342, Criminal Procedure Code, she stated as follows: “I received a suspension order from the S.S.P. I then came to Mysore and met Ananth, he told me to make the statement saying that he would take similar statement from others. He threatened me and also told me that nothing would happen to me if I were to make Exhibit P-23. So I have made the statement. I say, he dictated the statement to me. * * * * * * When I was on leave I was asked to bring money. I had come on 18th January, 1962, and returned. I brought money on 29th January, 1962, and deposited. They induced me to give it in writing in Exhibit P-66.” P.W. 2 was the Senior Superintendent of Post Offices and P.W. 8 was the Assistant Superintendent of Post Offices. They have stated that the accused voluntarily made the statements Exhibits P-23 and P-66. P.W. 2 suspended the accused on I9th December, 1961, as disciplinary proceedings were contemplated. She was asked to appear before P.W. 2 immediately. Accordingly she came to Mysore. They have stated that the accused voluntarily made the statements Exhibits P-23 and P-66. P.W. 2 suspended the accused on I9th December, 1961, as disciplinary proceedings were contemplated. She was asked to appear before P.W. 2 immediately. Accordingly she came to Mysore. In the meanwhile, on the basis of the report of P.W. 8, at the instance of P.W. 2 P.W. 1 gave a complaint to the Police againt the accused, Nagabhushana, P.S. Swami and Rangaswamy Iyengar, on 13th January, 1962. P.W. 2 questioned Rangaswamy Iyengar and Bhagavantrao and recorded their statements. Then, according to P.W. 2, the accused appeared before him and voluntarily made the statement Exhibit P-23. This statement, according to him, was recorded by one Shivaramayya and that Shivaramayya is not examined in this case. P.W. 2 has stated that at the time the statement Exhibit P-23 was recorded, only himself and Shivaramayya were present and none else, but the evidence of P.W. 8 is that he was also present at that time. From the facts stated above, it is clear that at the time this statement Exhibit P-23 was recorded, she was under suspension and a Police complaint had been lodged against her. She had been asked to appear before P.W. 2 and therefore she had come to Mysore. In these circumstances, no value can be attached to the statement of P.W. 2 that the accused appeared herself before him on 18th January, 1962, and made the statement Exhibit P-23 voluntarily. A close scrutiny of the statement Exhibit P-23 shows that itcontains nothing but what has been stated in Exhibit P-65, which is the report of P.W. 8. According to the prosecution, the accused paid the money and made a statement in the presence of P.W. 8 as per Exhibit P-66 voluntarily. P.W. 8 has stated in his evidence that on 29th January, 1962, he took Exhibit P-66 in consultation with P.W. 2 and in continuation of Exhibit P-23, and that the language of Exhibit P-66 might be his. Taking all the circumstances into consideration under which Exhibits P-23 and P-66 were taken, one is compelled to hold that the accused must have made the confession under inducement, threat or promise. Taking all the circumstances into consideration under which Exhibits P-23 and P-66 were taken, one is compelled to hold that the accused must have made the confession under inducement, threat or promise. Under section 24 of the Evidence Act, a confession made by an accused person is irrelevant in a criminal case if the making of the confession appears to have been caused by inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the Court to give the accused person, grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Section 24 has been stated in the form of a rule of exclusion. According to this section a confession by an accused is irrelevant if it is caused by (1) inducement, (2) threat, and (3) promise. The inducement, threat or promise must have a reference to the charge against the accused; proceeded from a person in authority and sufficiently given the accused person reasonable grounds for supposing, that by making the confession he would gain any advantage or avoid any evil of atemporal nature in reference to the proceedings against him. To make a confession relevant under this section, it must be shown that it was made by an accused person and that it was voluntary. In order to make it a basis for conviction, it must be further shown that it is true. Any inducement in the nature of a promise or of a threat proceeding from a person in authority affects its voluntary character and vitiates a confession. If it appears that the confession has been improperly induced, no matter how true it may be, the same should be rejected. “It is not because the law is afraid of having truth elicited, that these confessions are excluded, but because the law is jealous of not having the truth”. (R. v. Mansfield1). If it appears that the confession has been improperly induced, no matter how true it may be, the same should be rejected. “It is not because the law is afraid of having truth elicited, that these confessions are excluded, but because the law is jealous of not having the truth”. (R. v. Mansfield1). In scrutinising a case from the point of view of section 24, the Court will have to perform a throe-fold function: (1) it will have as a Court to determine the sufficiency of the inducement, threat or promise as affording certain grounds, (2) it will have to clothe itself with the mentality of the accused to see whether the ground would appear to the accused reasonable for a supposition that he would gain any advantage or avoid any evil, and (3) it will have to judge as a Court if the confession appears to have been caused in consequence of the inducement, threat or promise. In the present case, it is found that the accused appeared before P.Ws. 2 and 8. the persons in authority, in pursuance of a suspension order issued against the accused. A Police complaint had been filed against her alleging that she had embezzled monies of the Post Office, attended by forgery and falsification of accounts. The statement Exhibit P-23 contains the details found in the report Exhibit P-65, made by P.W-8, on which the accused was not only suspended, but also a Police complaint was lodged against her. The language in Exhibits P-23 and P-66 and the contents thereof appear to be not that of the accused. The contents therein also appear to be not. true. Therefore, in these circumstances, it appears to me that these statements must have been taken under threat, inducement and promise. Consequently, no reliance can be placed on these statements. The circumstances relied upon by the prosecution do not establish in the first instance that the accused forged the vouchers Exhibits P-8, P-10 and P-13 and embezzled Rs. 800, Rs. 200 and Rs 12 respectively and thereafter to screen herself, falsified the accounts. In the result, therefore, I allow this appeal, set aside the conviction and sentence passed against the accused and acquit her of all the charges with which she has been convicted. The bail bonds are cancelled. S.V.S. ----- Appeal allowed.