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2003 DIGILAW 607 (KER)

M. v. Kunhiraman VS S. I. Of Police

2003-09-22

R.BASANT

body2003
Judgment :- These revision petitions are directed against the concurrent judgments rendered by the trial court and the Appellate Court finding the revision petitioner guilty of the offences punishable under Sections 420 and 468 I.P.C. There was a further direction that the amount seized by the police – the amount due under Ext.P11 cheque, which was fraudulently encashed by the accused, be returned to the drawer of the cheque. 2. The gist of the allegations against the petitioner is that he, a postal employee, intercepted a postal cover addressed to PW2 enclosing Ext.P10 cheque. Ext.P10 cheque was drawn in the name of PW2 for $ 20,000. The same was issued by one Thomas J. Dennelly. The accused allegedly forged Ext.P8 letter. He made it to appear that Ext.P8 letter was being written by PW2 was shown to return Ext.P10 cheque to the said Donnely with a request to him to issue a cheque in the name of the accused. Accordingly the said Thomas J. Donnelly received back Ext.P10 cheque and issued Ext.P11 cheque, which was forwarded to PW2 along with Ext.P9 letter under registered post. Ext.P9 letter sent under registered post was also intercepted by the accused, who got it encashed in an account opened by him in the State Bank of Travancore. Thus, in short, the allegation is that the accused by his fraudulent conduct induced Thomas J. Donnelly to issue Ext.P11 cheque in the name of the accused. He allegedly intercepted the same in post illegally and misappropriated the same. To facilitate this he had forged Ext.P8 letter and Ext.P17 acknowledgment and had also caused Ext.P10 (a) endorsement to be made on Ext.P10 cheque. 3. The prosecution examined PWs 1 to 15 and proved Exts.P1 to 34. DWs 1 and 2 were examined and Exts.D1 to 8 were marked. 4. PW1 is the Magistrate, who recorded Exts.P1 to P3, 164 statements of PWs.9, 8 and 6. PW2 is a Christian Priest, to whom Shri. Donnelly allegedly intended to make the payment. He proved Exts.P4 ton P13. PWs, 3 to 5 and 12 are officials of the Banks. Accused had approached PW3 to encash Ext.P11 cheque. PW3 had taken him to PW4, who, in turn, had contacted PW5 to ascertain the procedure for encashment of an overseas cheque. PW5 is the banker of PW2 also. He proved Exts.P4 ton P13. PWs, 3 to 5 and 12 are officials of the Banks. Accused had approached PW3 to encash Ext.P11 cheque. PW3 had taken him to PW4, who, in turn, had contacted PW5 to ascertain the procedure for encashment of an overseas cheque. PW5 is the banker of PW2 also. Since the accused did not approach PW5 to encash the cheque, PW5 got suspicious and informed PW2. That is show that the cheque was encashed in an account newly opened by the accused in his bank for this purpose. 5. PW6 is a Postmaster of the Post Office where the accused was working. She proved EXts.P15 to P18. These documents are produced to show that a registered letter addressed to PW2 was handed over by her to the accused for delivery to P.W.2 on 13.10.1987. It was not delivered on 13.10.1987. But it was shown to have been delivered on 14.10.1987 under Ext.P17. PWs 7 and 9 are persons operating typewriting Institutes. They are examined by the oprosecuti9on to show that Exts. P5, P6 and P8 were got prepared by them at the instance of the accused. P.W.9 turned hostile to the prosecution. He did not, of course, identify the accused. PWs 8 and 10 are attestors to seizure mahazars. PW11 is an official of the Post Office and he proved Exts. P21 and 22. Ext.P21 is an extra judicial confession allegedly made by the accused to PW11, who was the official of the Postal Department entrusted with the responsibility of enquiring into the alleged misconduct in employment committed by the accused. P.W.13 is the expert who submitted Ext.P31 report to confirm that Ext.P10(a) endorsement on Ext.P10 cheque is not written and signed by P.w.2 P.Ws.14 and 15 are the Investigating Officers who had roles to play in the registration of the crime, its investigation and the filing of charge sheet. 6. The accused took the stand that he is not guilty. He admitted that Ext.P11 cheque was encashed by him. He did not raise a contention that Ext.P11 cheque was issued to him directly by Thomas J. Donnely, According to him, it was P.W.2 who handed over the said cheque to him. P.W.2 had earlier helped him financially to put up a house. But the accused had not converted himself into Christian religion. He did not raise a contention that Ext.P11 cheque was issued to him directly by Thomas J. Donnely, According to him, it was P.W.2 who handed over the said cheque to him. P.W.2 had earlier helped him financially to put up a house. But the accused had not converted himself into Christian religion. When Ext.P11 cheque was handed over, P.W.2 had insisted that half of the amount must be paid back to him. The accused was not prepared for the same. It was, in these circumstances, that P.W.2 invented a totally false story to vexatiously implicate him. Ext.P21 was allegedly obtained from him under duress by P.W.11 with the help of the police. The police had succumbed to the pressure/influence exerted by P.W.2. 7. D.w.1 is the Doctor who examined the accused and d.w.2 is an official of the Postal Department. D.w.1 proved Exts. D2 and D3 which are prescriptions to show that the petitioner was treated by D.W.1 from 19/3/88 to 26/3.88. D.W.2 proved Exts. D4 to D8 and the obvious purpose was to show that the accused had, earlier and subsequent to Ext.P21.., stuck to a version that he was not guilty of the allegations leveled against them. The obvious attempt was to show that Ext.P21 was not made voluntarily. Ext.D1 was proved during cross-examination of P.W.12 to highlight a discrepancy about the date on which the cheque amount was credited to the account of the accused. 8. The courts below concurrently came to the conclusion that the offences punishable under Secs. 420 and 468 of the IPC have been established satisfactorily. Though the learned Magistrate held that the offence under Sec.419 IPC was also established, the appellate court/the court of Session disagreed with the trial court on that question. Both courts directed that the proceeds of the cheque available in the account of the accused be returned to Mr. Thomas J. Donnelly. 9. Arguments have been advanced before me by the learned counsel for the revision petitioner and the learned Public Prosecutor. The learned counsel for the accused contends that proof beyond reasonable doubt is not available. He has also strained to ring to the notice of the Court several inadequacies/imperfections in the conduct of the investigation/prosecution. In these circumstances, it is contended that, at any rate, benefit of doubt may be conceded to the accused. 10. The learned counsel for the accused contends that proof beyond reasonable doubt is not available. He has also strained to ring to the notice of the Court several inadequacies/imperfections in the conduct of the investigation/prosecution. In these circumstances, it is contended that, at any rate, benefit of doubt may be conceded to the accused. 10. At the very out set, I must take note of the nature of the jurisdiction of the court of revision. The trial court had the evident advantage of seeing the witnesses performing in the witness stand before it and due allowance must certainly be given to that evident advantage which the trial court had while considering the question whether the court were justified in placing reliance on their testimony. Proof beyond reasonable doubt must certainly be insisted but that certainly is not a fetish as has been repeatedly held by courts. 1. Sec.3 of the Evidence Act, has often been repeated, is the Bible of a court of facts. A fact by definition is held to be proved, if the court, on the basis of the materials available before it, believes in its existence or considers it s existence so probable that an ordinarily prudent mind ought to proceed on the supposition that such fact exists. The expressions ‘proved’, ‘not proved’ and criminal trials. Going by the standards prescribed under the Evidence Act the same definition is to apply and there is no specific statutory stipulation justifying imposition of a higher standard of proof. 12. But the golden thread which runs through the entire fabric of Anglo-Saxon system of administration of criminal justice is that there must be proof beyond the shadow of a reasonable doubt. How do we compromise between these rival requirements? How can satisfactory explanation be found in view of the common definition of the expressions ‘proved’, ‘not proved’ and ‘disproved’ in sec.3 of the Evidence Act for both civil and criminal trials. 13. The answer appears to be simple. Every prudent mind, which is the standard envisaged under Sec.3, would certainly insist on surer and more satisfactory material depending on the consequence of the finding. In a criminal trial deprivation of life and liberty may take place on the basis of the findings rendered by the court. 13. The answer appears to be simple. Every prudent mind, which is the standard envisaged under Sec.3, would certainly insist on surer and more satisfactory material depending on the consequence of the finding. In a criminal trial deprivation of life and liberty may take place on the basis of the findings rendered by the court. Therefore, any prudent mind must insist on better and more satisfactor7y evidence when the consequence of deprivation of life and liberty is likely to result on the basis of the finding. This and this alone is, to my mind, the only method by which insistence on a higher degree of proof in criminal cases can be justified jurisprudentially, notwithstanding the common definition for the expressions ‘proved’, ‘not proved’ and ‘disproved’ under Sec.3 of the Evident Act. 14. The crucial question hence is whether on the materials available a prudent mind can believe in the guilt alleged against the accused or at least whether such prudent mind can come to the conclusion that it must proceed on the supposition that the accused is so guilty. 15. The Supreme Court in the decisions rendered in Sucha Singh v. State of Punjab (2003 AIR SCW 3984) and State of Punjab v. Karnail Singh (2003 AIR SCW 4065) has recently reiterated that it is as much the concern of the system to ensure that the guilty is punished as it is to ensure that the innocent is acquitted. One imperative cannot obviously be squandered at the alter of the other. Materials available have to be scanned objectively by a court to decide whether the allegations against the accused are established. 16. Proof beyond the shadow of a reasonable doubt is, according to me, nothing graver than proof beyond reasonable doubt. Proof beyond reasonable doubt is virtually nothing but proof beyond doubt. Proof beyond doubt is definitely nothing more than proof. The expressions ‘proof beyond the shadow of a reasonable doubt’ has been pressed into service to impress upon the adjudicatory authorities the need to employ care and caution when findings are rendered which have the consequence of deprivation of life and liberty. It would be incorrect to construe these expressions as magic expressions imposing any impossible or artificial burden on the prosecution. It would be incorrect to construe these expressions as magic expressions imposing any impossible or artificial burden on the prosecution. The court must zealously ensure before conviction is entered that there is satisfactory proof against the accused which would make a prudent mind believe in the culpability of the accused or at least enable it to come to the firm and safe conclusion that an ordinarily prudent mind ought to proceed on the supposition that the accused is guilty. Doubt if there is, it will not be proof. It will not satisfy the expression “proved” defined under sec.3. It will only fall under the category of “disproved” or “not proved” under sec.3. A doubt which is not reasonable is no doubt at all to a prudent mind. Unless there be a reasonable doubt there can be no shadow of such a doubt. In short what is insisted is only that the court must have sufficient material to believe in the existence of the fact or to entertain the satisfaction that a reasonably prudent mind in the given circumstances can act on the supposition that such fact exists, conscious of the consequence of the finding. 17. I do not intend to put the cart before the horse. But certainly the factual disputes will have to be appreciated and entertained in the canvas of the admitted and undisputed facts. There is satisfactory proof to show that the accused had encashed Ext.P11 cheque? That is admitted by the accused also. There is no dispute on that aspect. How did the accused get Ext.P11 cheque? His only contention is that P.W.2 handed it over to him. If P.W.2 handed it over to him, why is P.W.2 now turning against the accused? There is significant absence of any satisfactory explanation. The contention that the accused refused to get himself converted to Christianity is not raised at earlier stages as is evident from Exts.D4, D5 and D7. Admittedly, the accused was granted financial assistance by P.W.2 for putting up a residential building. There is nothing to show that at any stage prior to the encashment of Ext.P11, conversion was insisted by P.W.2. The next attempt is to contend that P.W.2 had wanted the accused to pay to him, half of Ext.P11 amount after encashment. Even before encashment was made, we find that the controversy had erupted. There is nothing to show that at any stage prior to the encashment of Ext.P11, conversion was insisted by P.W.2. The next attempt is to contend that P.W.2 had wanted the accused to pay to him, half of Ext.P11 amount after encashment. Even before encashment was made, we find that the controversy had erupted. In these circumstances, the contention of the accused that P.W.2 entertains oblique motive against the accused for the reason that the accused did not hand over half the amount is not found to be inspiring or acceptable. Going by the version of the accused, P.W.2 was handing over the cheque for $ 20,000 to the accused voluntarily. Before handing over such a cheque, the deal would certainly have been struck, if it were not really a bona fide one. In the circumstances, the theory that P.W.2 had handed over Ext.P11 to the accused is inherently uninspiring. 18. We have the evidence of P.W.2 and the courts below have chosen to place reliance on such testimony. The evidence of P.w.2 very clearly shows that EXts.P6 and P8 letters were not written by him to Thomas J. Donnelly. His evidence further shows that he did not receive Exts. P7 and P9 written by Thomas J. Donnelly to him. He is categoric that he did not hand over Ext.P11 to the accused. Courts below chose to place reliance on his testimony. As a court of revision, I find no reason to interfere with that discretion. 19. We have the evidence of P.Ws.7 and 9 which indicate satisfactorily that Exts. P6 and P8 letters were not written by P.W.2. The evidence of P.w.7 shows that Ext.P6 letter was got prepared by the accused. P.W.9, though hostile, his evidence clearly shows that Ext.P8 letter was got prepared by some one other than P.W.2. the contents of Exts.P6 and P8 clinchingly show that if P.W.2 did not prepare them, the only other person who was interested in getting such letters prepared was the accused. Necessary inferences must, in these circumstances, follow. 20. I do further not e that both courts have without sufficient reasons chosen to exclude Ext.P21 from their consideration. The trial court did not advert to it on the assumption that it is hit by Sec.24 of the Evidence Act. The appellate court does not appear to have considered the same in detail. 20. I do further not e that both courts have without sufficient reasons chosen to exclude Ext.P21 from their consideration. The trial court did not advert to it on the assumption that it is hit by Sec.24 of the Evidence Act. The appellate court does not appear to have considered the same in detail. Ext.P21 is a piece of extra judicial confession. It is not hit by Sec.24 of the Evidence Act. That confession is made by the accused to P.W.11. P.W.11 is a superior officer of the Postal Department. He wielded disciplinary authority over the accused. The accused had earlier stated to P.W.11 in Ext. D4 dated 4/12/1987 that he had not received any letter addressed to P.W.2 for delivery. But Exts. P15 to P18 knocked the bottom out of this theory. The accused must have been aware, after Ext. D4 and before Ext.P21, that P.W.11 must have come across Exts.P15 to P18. In these circumstances, it is only reasonable to assume that the accused must have wanted to make a confession before P.W.11. He must have realized the impossibility of sticking to a defence of denial. He must have expected indulgence from P.W.11 who could have chosen to file a police complaint or not. He must have pinned his hopes on P.W.11 taking a lenient view on the alleged misconduct. In these circumstances, I find absolutely nothing in Ext.P21 which should have persuaded the courts below not to consider the same. I have gone through the cross-examination of P.W.11 as also the investigating officers. I find absolutely no reason why P.W.11’s evidence about the confession made by the accused to him under Ext.P21 should have been discarded by the courts below. Sec.24 of the Evidence Act can have no application to Ext.P21. Ext.P21 is seen to be voluntary and convincing, notwithstanding the reverence therein to an earlier statement to the police. 21. the learned counsel for the accused had trial, quest for truth and justice must be the beacon light for the court, subject of course to safeguards in favour of the accused,- which should ensure that he is not prejudiced. Ext.P21 is seen to be voluntary and convincing, notwithstanding the reverence therein to an earlier statement to the police. 21. the learned counsel for the accused had trial, quest for truth and justice must be the beacon light for the court, subject of course to safeguards in favour of the accused,- which should ensure that he is not prejudiced. The fact that better and more convincing evidence in support of a fact(which is already proved beyond doubt by the data available) could have been adduced cannot persuade the court to commit the cardinal error of assuming that the accused is entitled to the benefit of assuming that the accused is entitled to the benefit of doubt in such a situation. The prosecution’s inability to question/examine Thomas J. Donnelly is quite understandable. It would be imprudent for this Court to jump to any conclusion against the prosecution merely on the basis of such inability. 22. The contention is urged with the help of a decision reported in Peethambaran v. State of Kerala (1998 (1) KLT 602) that there is inordinate delay in the filing of the FIR. The cheque in question was allegedly removed while in postal transit by the accused on 14/10/1987. The FIR is seen filed only on 10/12/1987. Relying on this gap of time it is contended that there is inordinate and unexplained delay in the lodging of the F.I. Statement and the registration of the FIR. I am unable to accept this contention. There must inevitable be a gap of time between the commission of the crime and its report before the police. The significance of this gap of time must vary in the facts and circumstances of each case. The gap by itself, or the magnitude of the gap by itself, will not persuade the court to come to any ready and instant conclusions. In this case P.w.2 was blissfully ignorant of Ext.P9 letter addressed to him by Thomas J. Donnelly or Ext.P11 cheque enclosed in the said letter, He had no idea that it was intercepted in post. It is only when he came to know from his banker – P.w.5 that he first of all got scent of his deprivation. He needed time to make enquiries. He had to ascertain the relevant details. He had, the evidence clearly shows, earlier made a complaint before the postal authorities. It is only when he came to know from his banker – P.w.5 that he first of all got scent of his deprivation. He needed time to make enquiries. He had to ascertain the relevant details. He had, the evidence clearly shows, earlier made a complaint before the postal authorities. The postal authorities had already commenced steps to enquiry into his complaint. The first reaction of a person in the given situation would certainly be not to run to the police and lodge a First Information Statement. In these circumstances, if P.W.2 took time till 10/12/1987 to lodge Ext.P13 which held to the registration of Ext. P32, I am unable to see any sinister significance in such gap of time. The contention that there has been fatal delay in lodging the FIR does not at all appeal to me in these circumstances. 23. Even without Ext.P21 the impugned verdict of guilty and conviction can be upheld on the other materials available. Ext.P21 which was excluded from consideration without any valid reason removes the last trace of even the most remote doubt, if any, on the culpability of the accused. I am, in these circumstances, of opinion that a reasonably prudent mind could not, but have come to any conclusion other than the one in favour of the prosecution in the given facts and circumstances of the case. 24. A contention is raised that the sentence imposed is excessive. The accused has endured the trauma of this prosecution from 1987. It is contended that a lenient view may be taken and the deterrent substantive sentence of imprisonment imposed on the petitioner which would oblige him to re main in prison for a total period of three years to serve the substantive sentence of imprisonment may be modified. A lenient view may be taken considering the trauma that he has endured during this long period, it is urged. 25. I have considered the submissions made on this aspect. I am certainly in agreement with the courts below that a deterrent substantive sentence of imprisonment is liable to be imposed. But deterrence in a case like this, considering all the relevant circumstances including the lapse of time, does not necessarily depend on the period of time that the offender spends behind the bars. I am certainly in agreement with the courts below that a deterrent substantive sentence of imprisonment is liable to be imposed. But deterrence in a case like this, considering all the relevant circumstances including the lapse of time, does not necessarily depend on the period of time that the offender spends behind the bars. An appropriately deterrent substantive sentence of imprisonment coupled with appropriate directions for payment of fine shall, I am satisfied, serve the ends of justice ideally. The impugned substantive sentence of rigorous imprisonment has 3 years in all can be modified in the circumstances of this case. No sentence of fine is seen imposed under Sec.468 IPC. While reducing the substantive sentence, the maximum sentence of fine which can be imposed in the circumstances, can also be imposed on the petitioner. 26. Having confirmed the verdict of guilty and conviction, I am satisfied that there is absolutely no merit in the challenge against the direction regarding disposal of the property that is the proceeds of Ext.P11 cheque standing to his credit in the petitioners account. The said direction does not also, in these circumstances, warrant interference. 27. In the result: (a) Crl. R.P. No.357/94 is dismissed. (b) Crl. R.P. No.208/94 is allowed in part. (c) The verdict of guilty and conviction of the petitioner/accused under Secs.420 and 468 IPC are upheld. The sentence imposed on the petitioner/accused is modified and reduced. In supersession of the sentence imposed on him by the courts below, he is sentenced under Secs.420 an d 468 IPC to undergo rigorous imprisonment for a period of 18 months and to pay a fine of Rs.5,000/- each (10,000/- in all). In default of payment of fine, he shall undergo rigorous imprisonment for a further period of three months each (six months in all). The substantive sentences of imprisonment shall run concurrently. 28. The learned Magistrate shall take necessary steps for execution of the modified sentence hereby imposed and the direction for return of the amount. The revision petitioner shall appear and the sureties shall produce the revision petitioner before the learned Magistrate on 1/11/2003 for execution of the modified sentence. Needless to say, the learned Magistrate shall at liberty to take appropriate action against the petitioner and the sureties under Sec.446 of the Cr.P.C. if the petitioner does not appear before the learned Magistrate, as directed above.