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2002 DIGILAW 726 (KER)

J. Manian v. State

2002-11-08

N.KRISHNAN NAIR

body2002
Judgment :- These appeals are directed against the judgment dated 23-6-2001 of the Enquiry Commissioner and Special Judge, Trivandrum in C.C. No.19/98. The appellants were charged with the offences punishable under Section 13 (2) read with Section 13 (1) (c) and 13 (1) (d) of the P.C.Act, 1988 and Section 468, 471, 409 and 420 read with Section 120B of the I.P.C. After the trial, the learned Special Judge, Trivandrum found the accused guilty of all the offences except the offence under Section 420 of the IPC. and sentenced them to undergo rigorous imprisonment for three years for each offences and a fine of Rs.5,000/- each; in default to undergo rigorous imprisonment for one year each. The conviction and sentence passed against the accused are seriously challenged in these appeals. 2. All the five accused were employed in the Sub Treasury, Karthikapally. A1 was working as a Peon, A2 was a junior Accountant, A3 was a Senior Accountant, A4 was a Junior Superintendent and A5 was the Treasurer of the Sub Treasury during the relevant period. 3. The prosecution story runs in the following lines. P.W.1 Savithri Amma is a retired Government L.P. School Teacher. She was drawing her pension from the Karthikapally Sub Treasury. Prior to 1-9-1989 she was drawing her pension by direct payment but on 1-9-1989 she joined the Pension Treasury Savings Bank (PTSB) and thereafter she was drawing her pension through cheques. On 4-3-1992 she went to the Sub Treasury to withdraw the pension for the months of February and March, 1992 but she could not withdraw the amount for want of mustering. Since she had decided to leave for Meerut to stay with her daughter, she enquired with A2 whether she could get her pension by money order. A2 told her that she must file an application for changing the mode of payment from PTSB to money order scheme and she should also furnish the address to which the money order should be sent. Since the address at Meerut was not available with her, she handed over a signed blank paper to the 2nd accused. While she was in Meerut she entrusted a cheque for Rs. 5300/- to one Ramesan who came to his native place from Meerut. But when the cheque was presented for encashment, it was returned dishonoured. Since the address at Meerut was not available with her, she handed over a signed blank paper to the 2nd accused. While she was in Meerut she entrusted a cheque for Rs. 5300/- to one Ramesan who came to his native place from Meerut. But when the cheque was presented for encashment, it was returned dishonoured. Subsequently P.W.1 came to understand that by presenting a bill directly on 25-3-1992 the pension amount due to her for the months of February and March, 1992 was withdrawn by somebody. According to the prosecution all the accused entered into a criminal conspiracy on or before 25-3-1992 to misappropriate the pension amount of P.W.1 and in pursuance of the conspiracy they forged a bill in the name of P.W.1 Savithri Amma and misappropriated a sum of Rs.1754/- being the pension amount due to P.W.1 for the months of February and March, 1992. 4. On the basis of a complaint filed by P.W.1 Crime No.252/CR/94 was registered by P.W.12 under Ext.P.17 F.I.R. After conducting a preliminary P.W.13 registered another crime under Ext.P.19 F.I.R. The investigation in the case was conducted by P.W.14 and P.W.15. P.W.11 laid the charge before the lower court. The court below framed charge against all the accused for the offences punishable under Section 13 (1) (c) and 13 (1) (d) read with Section 13 (2) of the P.C. Act, 1998 and also for the offences under Sections 409, 420, 468, 471 read with Section 120B I.P.C. 5. The accused denied the charge. In order to prove the guilt of the accused, the prosecution examined P.Ws. 1 to 15 and marked Exts.P1 to P23. On an elaborate consideration of the evidence on record, the lower court found the accused guilty of the offences, convicted them and sentenced them as stated earlier. 6. The learned counsel for the appellants strongly contended that the court below has consciously or unwittingly ignored or overlooked several circumstances which are consistent with the innocence of the appellants. They further contended that there is absolutely no reliable material on record to hold that the accused in this case hatched a conspiracy to misappropriate the pension amount due to P.W.1 as alleged by the prosecution. According to them, the court below has misappreciated and misunderstood the evidence in the case. They further contended that there is absolutely no reliable material on record to hold that the accused in this case hatched a conspiracy to misappropriate the pension amount due to P.W.1 as alleged by the prosecution. According to them, the court below has misappreciated and misunderstood the evidence in the case. On the other hand, the learned Public Prosecutor supported the order of the court below and urged that there is no ground for interference. 7. The question for consideration is whether the prosecution has succeeded in proving that the accused in the case entered into a conspiracy to misappropriate the pension amount due to P.W.1 for the months of February and March, 1992 and in pursuance of the conspiracy they forged a bill in the name of P.W.1 and misappropriated the amount as alleged by the prosecution. It is settled position that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. (See Kehar Singh v. State, 1988 SCC (Crl) 711). Keeping in mind the above principles of law, I shall consider whether the evidence on record is sufficient to hold that the accused entered into a conspiracy as alleged by the prosecution. The de facto complainant in the case, Smt. Savithri Amma, P.W.1 is a retired Govt. L.P. School Teacher. Admittedly she was drawing her pension from Karthikapally Sub Treasury functioning at Haripad. Prior to 1-9-1989 she was drawing her pension by direct payment. But, from 1-9-1989 onwards she joined the Pension Treasury Savings bank (PTSB) and thereafter she was drawing her pension through cheques. L.P. School Teacher. Admittedly she was drawing her pension from Karthikapally Sub Treasury functioning at Haripad. Prior to 1-9-1989 she was drawing her pension by direct payment. But, from 1-9-1989 onwards she joined the Pension Treasury Savings bank (PTSB) and thereafter she was drawing her pension through cheques. According to the prosecution, the accused entered into a conspiracy to misappopriate a sum of Rs.1754/- being the pension amount due to P.W.1 for the months February and March, 1992. It is alleged that in pursuance of the conspiracy the accused forged Ext.P4 bill in the name of Smt. Savithiri Amma and misappropriated the amount. At the outset, I must say that it was quite improbable that all the five accused conspired together to misappropriate a paltry sum of Rs.1754/-. Ext.P4 is the bill, which according to the prosecution, was forged by the accused. According to the defence, Ext.94 was signed and presented by P.W.1 herself. On a consideration of the evidence on record, the lower court found that P.W.1 is not the author of the signature in Ext.P4 and it is a fabricated document. Though the court below found that Ext.P4 is a forged bill, the court was not able to come to a definite finding as to which of the accused forged the bill. The relevant portion of the judgment of the lower court reads as follows. ……… The reasonable inference that can be deducted there from is that a bill was written up by A1 and the signature of P.W.1 was forged by one of the accused persons and that was done with the full knowledge of all the accused and in pursuance of the criminal conspiracy. As observed by the Supreme Court in Sarwan Singh v. State of Punjab (A.I.R. 1957 S.C. 637) between “may be true” and “must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence. In this case it is true that Ext.P4 bill was written in the handwriting of the 1st accused. Merely because Ext.P4 bill was filled up by the 1st accused it cannot be presumed that he is the author of the signature in Ext.P4. In the connection it is relevant to note the decision of the Supreme Court reported in Mohanlal v. Delhi Administration (A.I.R. 1975 S.C. 1842). Merely because Ext.P4 bill was filled up by the 1st accused it cannot be presumed that he is the author of the signature in Ext.P4. In the connection it is relevant to note the decision of the Supreme Court reported in Mohanlal v. Delhi Administration (A.I.R. 1975 S.C. 1842). In that case the accused was convicted under Sections 467 and 471 of the I.P.C. for an alleged issue of a cheque engrossed on a leaf from another’s cheque book. The body of the cheque was proved to be in the handwriting of the accused but not the signature. The Supreme court set aside the conviction and sentence. In this case the signature in Ext.P4 is not proved to be that of the 1st accused. 8. The 2nd accused was only a Cleark in the Sub Treasury Office and he was in no way connected with any work relating to the pensioners. He had no access to the funds in the Sub Treasury and he had nothing to do with the disbursement of pension or any other amount of money received into or paid from the Sub Treasury. It appears that the lower court connected him with the crime mainly on the ground that Ext.P1(a) was brought into existence to wanted to change the mode of payment from PTSB to direct payment. Ext.P1(a) is the application purporting to be the one submitted by P.W.1. On a consideration of the evidence, the lower court found that P.W.1 was not the author of Ext.P1 (a). It is to be noted that P.W.1 has admitted her signature in Ext.P1(a). But she would say would say that she is not the author of the contents of Ext.P1 (a). According to me, the version of P.W.1 in this regard could be accepted only with a pinch of salt. It is very difficult to believe that P.W.1 who is a renreo L.P. School teacher pout her signature in a blank paper and handed over the same to the 2nd accused. As observed by this Court in Pathu v. Katheesa Umma (1990 (2) KLT S.N. 35, Case No.49) when a persons signature appears at the place where the executant would normally sign, the signature may be accepted prima racie as having been put in token of execution. As observed by this Court in Pathu v. Katheesa Umma (1990 (2) KLT S.N. 35, Case No.49) when a persons signature appears at the place where the executant would normally sign, the signature may be accepted prima racie as having been put in token of execution. There is the presumption under S.114 of the Evidence Act that a person only puts signature in a document in token of execution. No doubt, in this case P.W.1 has given an explanation for handing over a signed blank paper to the 2nd accused. According to her, on 4-3-1992 she went to the Sub Treasury and she could not withdraw her pension for the months of February and March, 1992 for want of mustering. She would further state that since she wanted to go to Merrut where her daughter was staying she enquired with A2 whether she could get her pension by money order. Then A2 told her than an application for changing the mode of payment from PTSB to money order scheme should be submitted to the Sub Treasury Officer and accordingly she handed over a signed blank paper to A2. According to ner, since she could not furnish her address at Merrut, where admittedly her daughter was staying. P.W.3 has stated in his evidence that when he had show Ext.P1 (a) to P.w.1 she snatched it from him and attempted to crumple it. The lower court was not inclined to believe the version of P.W.3 on the ground that he was swayed by the accused to give the desired answers to the suggestive questions put to him. But it is reievant to note that P.W.3 was not declared hostile to the prosecution. It appears that the lower court was not inclined to believe the version of P.W.3 on the ground that there are no shrinks or any other mark in Ext.P1 (a) to show that there was an attempt to crumple it. I cannot agree. Merely because there are no shrinks or any other marks in Ext.P1 9a) after a long period of time it cannot be said that there was not attempt on the part of P.W.3 to crumple it. P.W.1 has admitted that when Ext.P1(a) was shown to her, she was not allowed to go through it. If that be so, she would have immediately made a complaint alleging that Ext.P1 (a) is a fabricated document. 9. P.W.1 has admitted that when Ext.P1(a) was shown to her, she was not allowed to go through it. If that be so, she would have immediately made a complaint alleging that Ext.P1 (a) is a fabricated document. 9. Another circumstances relied on by the lower court is that the pensioner’s portion of PPO was retained in the Sub Treasury. P.W.4 has stated in his evidence that even it the pensioner’s portion of PPO is retained in the Treasury, the party can present the bill after taking the pensioner’s portion from the Treasury and then appending it along with the bill. P.W.4 has further stated that the bill in question was presented in that manner. The lower court was also not inclined to accept the version of P.W.4 in this regard. In this connection it is permanent to note that P.W.4 was also not declared hostile by the prosecution. But the evidence of P.Ws. 3 and 4 was rejected solely on the ground that they were officers of the Treasury where the alleged forgery was committed. 10. It appears that the lower court proceeded on the assumption that unless all the five accused put their heads together and conspired to misappropriate the amount, the bill could not be forged and the amount could not be swindled. No doubt, the pay order was written by A3 and A4 had signed at the place where the Treasury Officer is to sign. It is also not disputed that the amount mentioned therein was disbursed by A5 and he had affixed the seal ‘cash paid’. According to the court below, since all the accused have taken a common defence it has to be held that the forging of the bill and the swindling of the money were done as a part of common design hatched up by all the accused persons. I cannot agree. Merely because all the accused had raised the same contention that P.W.1 had gone to the Sub Treasury and presented the bill directly and got the amount encashed, it cannot be presumed that all the accused conspired together to misappropriate the amount covered by Ext.P4 bill. As stated earlier, the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. In this case, the only complexity of A4 is that he had initiated on the PPO. All other endorsements in the bill are made by the other accused. As stated earlier, the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. In this case, the only complexity of A4 is that he had initiated on the PPO. All other endorsements in the bill are made by the other accused. The only allegation against the 5th accused is that he effected the payment as Treasurer which payment was accepted and approved by his senior officers. Except that the 5th accused effected the payment, no other acts are alleged against him. 11. Admittedly P.W.1 issued Ext.P2 cheque for Rs.5300/- which was returned dishonoured. The cheque bears the date 2-9-92. According to P.W.1 she had gone to the Sub Treasury on 4-3-1992 and had withdrawn an amount of Rs.1000/- when she had Rs.1136/- in her account. Her pension per month is Rs.877/-. Her pension amount from April, 1992 to September, 1992 would come to Rs.5,262/- Her previous balance was Rs.136/-. If she had to knowledge about the withdrawal of the pension for the months of February and March she would have presented the cheque forRs.705/- or any figure near to that. This is a very strong circumstnace in favour of the accused in the case. 12. According to me, even if it is assumed that Ext.P4 was a forged bill, the accused cannot be held liable for the offences unless there is legal evidence to prove that they conspired together to forge the bill and misappropriated the amount. As I have stated earlier, it was quite improbable that all the accused entered into a conspiracy to misappropriate a paltry sum of Rs.1754/-. The prosecution is entitled to succeed only if it can successfully prove that any of the accused in the case had forged the signature of P.W.1 in Ext.P4 bill. There is absolutely no evidence in the case to show that any of the accused in the case is the author of the signature in Ext.P4. Admittedly the prosecution did not take any step to send the admitted signatures of the accused and disputed signature in Ext.P4 to an expert for comparison. There is absolutely no evidence in the case to show that any of the accused in the case is the author of the signature in Ext.P4. Admittedly the prosecution did not take any step to send the admitted signatures of the accused and disputed signature in Ext.P4 to an expert for comparison. According to the court below, the contention that the admitted signatures on the accused should have been sent for comparison of find out who was the person who had forged is unsound and untenable since as far as this case is concerned the common evidence as well as the admitted fact is that it could have ben forged only by one by one of the accused persons. According to me, the observation of the court below is baseless. As stated earlier there is absolutely no reliable material on record to show that any of the accused had forged the signature in Ext.P4 bill. Nobody has admitted that the signature could have been forged only by one or the accused. 13. It appears that the learned Special Judge fastened criminal liability on the accused mainly on the ground that P.W.1 is not the author of the signature in Ext.P4. The court below has wrongly dealt more on the improbability of the defence rather than weighing the prosecution evidence in the light of the principles of appreciation of evidence. Much reliance is seen placed on the evidence of the handwriting expert to hold that the signature in Ext.P1 is not that of P.W.1. No doubt, if the evidence of P.W.9 and Ext.P22 are accepted, it has to be held that P.W.1 is not the author of the signature in Ext.P4. P.W.9 is the Assistant director of Document, FSL, Thiruvanantnapuram. The disputed signature found in Ext.P4 was rent to the expert for comparison with eight specimen signatures of P.W.1 contained in Exts.P5 (a). Ext.P15 is the first report of P.W.9. it is stated in Ext.P15 that the person who wrote the blue enclosed standard signatures stamped and marked S1 to S8 (in Exts.P5 and P5(a) ) probably did not write he red enclosed questioned signature (in Ext.P4). In Ext.P15 there is no conclusive finding to the effect that the admitted signatures and the disputed signatures have no similarity. It is seen that subsequently the standard signatures of P.W.1 of the year 1992 were also sent for comparison. In Ext.P15 there is no conclusive finding to the effect that the admitted signatures and the disputed signatures have no similarity. It is seen that subsequently the standard signatures of P.W.1 of the year 1992 were also sent for comparison. The ten standard signatures of P.W.1 found in Exts.P1 (b), P1(d), P1(e), P1(g), P1(a), P6 and P2 were also sent to the expert for comparison and Ext.P22 report was obtained. The evidence was given by P.W.1 regarding the similarities occurring in the disputed signature from the standard signature with the help of the magnifier. On a consideration of the evidence, the lower courtfound that the signature in Ext.P4 is the resuit of forgery. According to me, even if it is assumed that the signature in Ext.P4 is not that of P.W.1, the accused cannot be held liable unless it is proved beyond reasonable doubt that any one of the accused in the case is the author of the signature in Ext.P4. It is not just and proper to convict the accused mainly relying on the evidence of an expert. Ine supreme Court in Ram Chandra’v. State of U.P. (A.I.R. 195/S.C. 381) held that it is unsafe to treat expert mandwriting opinion as sufficient basis for conviction, but it may be relied upon supported by other items of internal and external evidence. In Ishwari Prasad v. Md.Isa. (A.I.R. 1963 S.C.1728) the Supreme Court held that expert evidence of handwriting can never be convlusive. This view was reiterated by the Supreme Court in Shashi Kumar v. Subodh Kumar (A.I.R. 1964 S.C.529) where it was pointed out that expert’s evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence. The Supreme Court had again occasion to consider the evidentiary value of expert opinion with regard to handwriting in Fakhruddin v. State of M.P. (A.I.R. 1967 S.C.1326). It was pointed out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence direct or circumstantial. Again in Magan Bihari Lal v. State of Punjab (A.I.R. 1977 S.C. 1091), the Supreme Court held that this type or evidence, being opinion evidence, is by its very natures, weak and infirm and cannot of itself form the basis for a conviction. Again in Magan Bihari Lal v. State of Punjab (A.I.R. 1977 S.C. 1091), the Supreme Court held that this type or evidence, being opinion evidence, is by its very natures, weak and infirm and cannot of itself form the basis for a conviction. This it is not well settled that expert opinion must always be received with great caution. As already stated the prosecution has miserably failed to prove that any of the accused had signed Ext.P4 bill: 14. The burden is on the prosecution to prove affirmatively that the accused were directly and personally connected with the acts or omissions attributable to the crime committed by them. In the case of conspiracy the court must have reasonable grounds to believe that two or more persons had conspired together for committing an offence. In this case there are no reasonable grounds to believe that all the accused conspired together to forge Ext.P4 bill and to misapproprlate the pension amount as alleged by the prosecution. It follows that the accused are entitled to an acquittal. In the result, I set aside the impugned order of conviction and sentence. The accused are found not guilty of the offences and they are acquitted. All the appeals are thus allowed.