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2004 DIGILAW 250 (CAL)

DILIP KR. PANDIT v. BANK OF MAHARASHTRA

2004-04-05

GIRISH CHANDRA GUPTA

body2004
GIRISH CHANDRA GUPTA, J. ( 1 ) THE petitioner was working with the Bank of Maharashtra as a clerk. He was suspended with effect from 3rd October, 1991. More than seven years thereafter he was-charge sheeted; to be precise the charge-sheet was issued on 16th November, 1998. Even after seven years the Bank was not sure about the charges against the petitioner so that a corrigendum had to be issued on 29th December, 1998. The Enquiry was, thereafter, held and the charges against the petitioner have been held to have been proved. It appears from the enquiry report that the Enquiry Officer was much too concerned about the delay during the period between 12th April, 2000 and 1st December, 2000 during which period the petitioner was ill and could not participate in the enquiry. He, however, has not spent even a word as to why was the petitioner suspended in the year 1991 and was not issued the charge-sheet then and there and what necessitated the delay of seven-years for the purpose of issuing a charge-sheet. ( 2 ) IT would be appropriate to notice the charges against the petitioner. The petitioner was admittedly a clerk. Admittedly, he has posted a cheque for Rs. 7,000/ -. Admittedly, he has prepared an interest voucher for Rs. 16,963/ -. Admittedly, he has posted two cheques of Rs. 5,000/- each. This is what he did. Three charges levelled against him are related to these three things which he did. As regards cheque for Rs. 7,000/-, the charge was that although the concerned account holder had a credit balance of Rs. 139. 22, the petitioner added the figure of 7' and/or pre-fixed the figure of 7', so as to make the credit balance appear to be Rs. 7,139. 22. The charge is that by resorting to this practice he has allowed the account holder to encash the cheque for Rs. 7,000/ -. The second charge is that in an account interest payable was Rs. 9,963/- but the interest voucher was deliberately prepared by the petitioner for a sum of Rs. 16,963/ -. The last charge against the petitioner with regard to two cheques for Rs. 5,000/- each was that he has by pre-fixing the figure 1' at various places including the credit balance allowed those two cheques of Rs. 5,000/- each to be encashed. 9,963/- but the interest voucher was deliberately prepared by the petitioner for a sum of Rs. 16,963/ -. The last charge against the petitioner with regard to two cheques for Rs. 5,000/- each was that he has by pre-fixing the figure 1' at various places including the credit balance allowed those two cheques of Rs. 5,000/- each to be encashed. Whereas, there was no appropriate credit balance and the cheques could not have been cleared in the normal course. For the purpose of proving the aforesaid charges the Bank has relied on the sole testimony of Shri Purushottam chatterjee, who is supposed to be a handwriting expert. In course of this cross examination the said expert has deposed as follows :-"pc : I agree that there is no registration number such like Advocates and doctors. There are few people in West Bengal practicing in, this profession. There is no registration number, but a panel is maintaining by the State Government, Judicial department, and we the experts took it for granted that the persons who are enrolled in the panel maintained by judicial secretary-cum-legal remembrances (LR) are recognized experts in WB in this provision. Considering the above fact, i have used the term (Govt. Registered ). Lastly I may mention that in the year 1970 I personally went to LR office and surprisingly I found that there is no record in the office file as a document examiner of my name in the said panel. I handed over a xerox copy of my original letter to the person concerned to maintain the file properly. DC : What are your educational qualifications. PC : I appeared BA examination in 1959 as external candidate but could not succeed. DC : In the High Court, City Civil" and Sessions Court Calcutta, they maintain a panel of experts. Your name does not appear in the panel of documents examiner in High Court. PC : My name is not included in the High Court panel. DC : For examination of documents as handwriting expert, in Govt. organization certain trainings are imparted and examinations are held ; and if a candidate qualifies and passed the examination then and then alone he is allowed to become an examiner of documents. Do you agree. PC : So far as I know, there is only departmental training and there is no examination system in case of State and Central Govt. organization certain trainings are imparted and examinations are held ; and if a candidate qualifies and passed the examination then and then alone he is allowed to become an examiner of documents. Do you agree. PC : So far as I know, there is only departmental training and there is no examination system in case of State and Central Govt. examiners. DC : So far as your case is concerned, you have not undergone either any training or passed any examination conducted by the Central or the State Govt. handwriting department which is called questioned documents examination bureau. PC : There is no scope for general public to take such training. Only govt. employees can take training from certain centers maintained by the Govt. of India/state Govt. There is no recognized public institution and as such i got no training from any institution in India. DC : Did you work in any Govt. service as a handwriting expert. PC : I was never in Govt. service as a handwriting expert. " ( 3 ) IT would thus appear that Shri Chatterjee, on whose evidence or so to say the sole evidence on the basis of which, the Enquiry Officer recorded his finding, in his deposition in cross examination admitted that he is not even a graduate. He did not have any specialised training. He is supposed to have been in the panel of the legal remembrances but he admits that in the year 1970 when he visited the office of the Legal Remembrancer he did not find his name there. On the basis of the evidence of this witness the entire finding was recorded. Section 45 of the EVIDENCE ACT, 1872 provides that the opinion of persons specially skilled is a relevant fact. Here is a witness, who has never undergone any training. Nor is there anything to show as to how does he stake his claim to be a skilled person in the matter of examining questioned documents. ( 4 ) MR. Sen, learned Advocate, appearing for the Bank drew attention of this Court to a judgment in the case of Collector, Jabalpur and Anr. v. Nawab ahmad Yar Jahagir Khan; reported in AIR 1971 MP 32 . He relied on paragraph 23 of the aforesaid judgment. This judgment is of no assistance to Mr. ( 4 ) MR. Sen, learned Advocate, appearing for the Bank drew attention of this Court to a judgment in the case of Collector, Jabalpur and Anr. v. Nawab ahmad Yar Jahagir Khan; reported in AIR 1971 MP 32 . He relied on paragraph 23 of the aforesaid judgment. This judgment is of no assistance to Mr. Sen for the simple reason that in that case the Division Bench was of the view that the person concerned "in his capacity as Commissioner and administrator of the MunicipalCorporation he appears to have gained knowledge pertaining to the value of land situated in different parts of the city as also of the house properties and the said knowledge in our opinion entitles him to be considered an expert so far as to render his opinion founded on such knowledge admissible in evidence. We may also make it clear that we are not solely basing the award of compensation on the opinion of Shri L. P tiwari but also on the sale-deeds which we have already discussed after making due allowance for location, size and advantages of the land acquired with those of, the lands sold under the sale-deeds. " ( 5 ) THERE is no such independent evidence in this case. The Division bench allowed the evidence of the expert only for the purpose of co rro bo rat ion. Therefore, this judgment does not lend any assistance to Mr. Sen. ( 6 ) MR. Sen then relied on the statement of Lord Russel from the book on Law of Evidence by Woodroffe and Ameer All, wherein the following statement of Lord Russel appears : "lord Russel said, 'is he peritus; is he skilled; has he adequate knowledge?" ( 7 ) APPLYING the questions suggested by Lord Russel to the facts in this case and comparing them with the evidence given by Mr. Chatterjee himself the answer according to me is bound to be that the evidence Mr. Chatterjee is of no consequence. There is no evidence to show that he is skilled nor is there any evidence that he has any knowledge on the subject far less adequate knowledge. Chatterjee himself the answer according to me is bound to be that the evidence Mr. Chatterjee is of no consequence. There is no evidence to show that he is skilled nor is there any evidence that he has any knowledge on the subject far less adequate knowledge. It may be clarified that in order to enable any one to stake the claim that he is skilled or has adequate knowledge, appropriate foundation has to be laid down in the evidence so that a person of ordinary prudence can rely on the fact that the person concerned is skilled or has adequate knowledge of the subject. No such foundation was laid by sri Chatterjee in his evidence. ( 8 ) THE quotation of Lord Russel appears mere fully in the case of united State Shipping v. S. S. 'st. A/bans' reported in AIR 1931 PC 189 which is as follows :-"another Chief Justice, Lord Russel of Killowen, explained the rule in a modern case of Reg v. Silverlock, (1894)2 Q. B. 766. The witness must have made a special study of the subject or acquired a special experience therein. The question is,' Lord Russel said : 'is he peritus; is he skilled; has he adequate knowledge?" ( 9 ) MR. Sen also relied on the following statement appearing in the book on Evidence of Woodrofee and Ameer All :"thus unqualified practitioners, hospital students and dressers have been permitted to testify as medical experts, and on questions of handwriting not only specialists but post office officials, lithographers and bank clerks and a solicitor 'who had for some years given considerable attention and study to the subject and had several times compared handwriting for purposes of evidence though never before testified as an expert' have been permitted to testify as experts. " ( 10 ) THIS passage only goes to show that experience gathered through practice of a particular trade or profession over the years, may sometimes impart expertise to a person in a particular field. But in those cases evidence shall be treated as that of the official or the banker or the lithographer who has been engaged in that profession and by reason of his experience his evidence may be admitted. But in those cases evidence shall be treated as that of the official or the banker or the lithographer who has been engaged in that profession and by reason of his experience his evidence may be admitted. A banker has the opportunity of comparing signatures of the account holders purporting to appear on the cheques presented for payment with the specimen signatures kept with the records of the Bank. There is a saying practice makes a man perfect. The perfection is thus achieved through constant practice. Before embarking upon the task of comparing signatures the banker is imparted training on the subject. Thereafter he builds upon the training and acquires expertise. This would become clearer from the words that "who had for some years given considerable attention and study to the subject and had several times compared handwriting for purposes of evidence though never before testified as an expert' have been permitted to testify as experts. " Unqualified practitioners, hospital students, dressers and everyone else named in the passage cited by Mr, Sen had some training to begin with. Nobody would start practice either in law or in medicine without some training. There may be unqualified practitioners. But that does not mean they are untrained lay people. They are unqualified because they did not receive formal training. But no one can suggest that anyone without any training can either practice in medicine or dressing or can start examining handwriting. This is what Mr. Chatterjee appears to have done. ( 11 ) AT this stage, it would be apposite to notice the basis on which the enquiry Officer thought that the charges had been proved against the petitioner. ( 12 ) IT should be recollected that the petitioner had also examined a handwriting expert. He deposed that the figures might or might not have been put by the petitioner. He was unable to form any definite opinion. The conclusion drawn by the Enquiry Officer with regard to the first charge is clearly based on surmise which is demonstrated by the following observations made by him. "therefore, considering that there were no other operations in the said account subsequent to 24. 9. 1990 and 11. 10. 1990 there was a possibility that the CSE only has made the said correction. The CSE has not been consistent during the enquiry proceedings. "therefore, considering that there were no other operations in the said account subsequent to 24. 9. 1990 and 11. 10. 1990 there was a possibility that the CSE only has made the said correction. The CSE has not been consistent during the enquiry proceedings. As pointed out by the P. O. , CSE has denied his handwritings on ME 15/6, while providing the same handwriting to DW. 1 as his standard handwritings. " ( 13 ) IN order to record his finding that the first charge had been proved against the petitioner, he has also recorded that "i have independently perused the exhibits. I observe that on exhibit D-7/5 alone, which is a defence exhibit admitted as standard handwriting of CSE under his initials, the digit 7' appears at Nine places. The said digit appears to be written in three different manners. Out of which, at two of the places, the writing appears similar to the 7' in question. The same 7' also appears similar to the one appearing on D-7/10 at two places, which is admitted as standard writing of cse. " ( 14 ) WHAT was done by the Enquiry Officer has been prohibited by the apex Court in the case of State v. Pali Ram reported in A 1979 SC 14 para 29 It is therefore not advisable that a Judge should take upon himself the test of comparing the admitted writing with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an Expert. " ( 15 ) THE fact that handwriting in this case is restricted to figures like "1" and "7" there is added difficulty and need for greater precaution. ( 16 ) IT is well settled that the matters should not be decided on the persona! knowledge of the Court; The reason is that the Court cannot be cross examined. In this case the Enquiry Officer was not even relying on his personal knowledge but he was purporting to give his opinion as an expert without possessing any expertise in the field and that too without any notice to the petitioner of his intention to do so. In this case the Enquiry Officer was not even relying on his personal knowledge but he was purporting to give his opinion as an expert without possessing any expertise in the field and that too without any notice to the petitioner of his intention to do so. ( 17 ) WITH regard to the second charge the Enquiry Officer held the same to have been proved simply because the voucher was admitted to have been written by the petitioner. Petitioner in his defence has said that the voucher was written by him at the instance of Mr. A. K. Dutta, the officer of the bank. The Enquiry Officer has dismissed the defence of the petitioner on the basis that no motive on the part of Mr. Dutta was substantiated as to why should he give this kind of an instruction. One may very well ask, what motive on the part of the petitioner has been substantiated by the bank for the purpose of preparing this false voucher ? Moreover, the voucher might have been prepared and thereafter processed by a host of other officials of the bank. They were those officials of the Bank not brought before the Enquiry officer for the purpose of giving evidence has remained a mystery. It would at this stage be profitable to notice the following part of the report :"the CSE has admitted that he has indeed prepared the voucher, but under instruction of one Mr. A. K. Dutta who was working as an officer. CSE has not supported his statement. He has not examined any witness to substantiate this. He has also not brought on record any possible motive with which the said Shri Dutta might have instructed cse to prepare a wrong voucher. . . . . . . . . . . . . . . . . . Since the action of preparing the above voucher is admitted, and the reported justification behind preparing such voucher not being substantiated, I conclude that the charge is proved. " ( 18 ) THERE is no discussion in the report to show that the petitioner know that interest payable was Rs. 9,963/- and the voucher was deliberately prepared by him for Rs. 16,963/ -. " ( 18 ) THERE is no discussion in the report to show that the petitioner know that interest payable was Rs. 9,963/- and the voucher was deliberately prepared by him for Rs. 16,963/ -. ( 19 ) WITH regard to the third charge the basis of returning a finding of guilt against the petitioner is "it can not be ruled out that the CSE might have been the person who added the figure 1' in the balances", ( 20 ) WE have thus noticed that based on the sole testimony of Shri chatterjee the entire finding was recorded. The Enquiry Officer himself could not proceed further than saying that the petitioner could have done this, therefore, the mind of the Enquiry Officer was in the realm of suspicion. It is well settled that suspicion cannot take the place of proof. EVIDENCE ACT, 1872 in this regard may not be strictly applicable to a departmental proceeding but care has to be taken that an innocent person is not punished. Some dependable proof for the purpose of the view taken by the Enquiry Officer is a must. If any authority is needed reference can be made to the case of union of India v. H. C. Goel reported in AIR 1964 SC 364 para 27 at P 370, ( 21 ) MOREOVER it is well settled that the opinion of an expert can be relied upon only for the purpose of corroboration. There should therefore be substantive evidence for the finding before the opinion of the expert can be relied upon. If any authority is needed reference can be made to the case of sashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee, since deceased and ors. reported in AIR. 1964 (SC) 529. "besides it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidenced or by. circumstantial evidence. In the present case all the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it. " ( 22 ) THE present case is even worse because the so called expert Sri chatterjee does not have any legitimate right to claim to be an expert. circumstantial evidence. In the present case all the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it. " ( 22 ) THE present case is even worse because the so called expert Sri chatterjee does not have any legitimate right to claim to be an expert. ( 23 ) MR. Sen has argued that the judicial review can not extend to exercising appellate powers and in support of his submission he has relied on a judgment of this Court in the case reported in (2001)1 Cal HIM 124 and also on a judgment of the Apex Court in the case reported in AIR 1965 SC 1103 . This is a well settled principle that in an application under Article 226 court cannot exercise appellate powers, but Court can certainly enquire as to whether the finding is backed by any evidence and in case the Court finds that the finding is not backed by any evidence then the Court is expected to set aside that finding because it is a perverse finding. If any authority is needed reference can be made to the case of Transport Commissioner v. A. Radha K. Moorthy reported in (1995)1 SCC 332 para 7, Reference can also be made to the case of H. C. Goel. (supra ). ( 24 ) MR. Sen relying on a judgment in the case of Jiwan Mai Kochar v. Union of India and Ors. reported in AIR 1983 SC 1102 submitted that a finding can be recorded on the basis of circumstantial evidence. Nobody can dispute this proposition. Even in the cases of a trial of murder under Section 302,1. PC, capital punishment can be awarded on the basis of circumstantial evidence. But the question is, "is such circumstantial evidence there on the record to show that the petitioner indulged in the misconduct alleged against him ?-Answer is, there is no such evidence. The way the charges were worded against the petitioner one would expect that a host of witnesses, the officers and the clerks working at the relevant point of time with the petitioner would be called to give evidence. But no such thing was done. The way the charges were worded against the petitioner one would expect that a host of witnesses, the officers and the clerks working at the relevant point of time with the petitioner would be called to give evidence. But no such thing was done. Another important factor is that by resorting to the alleged misconduct the petitioner is insinuated to have helped the account holders to defraud the bank but no nexus between the account holders and the petitioner was even attempted to be established. The charges suggest that the petitioner aided or abetted the wrongful withdrawal of money from the bank. Then the evidence of common intention shared by the petitioner with the account holders who defrauded the bank was required. No attempt was made to establish any such thing. ( 25 ) THIS Court has not doubt that simply because the petitioner had made the relevant postings in the ledger and had prepared the voucher he was roped in and a finding was returned against him without any evidence worth the name. On the basis of the aforesaid finding the disciplinary authority dismissed him from service. The appellate authority concurred with the order of dismissal without going into any further discussion into the guilt of the petitioner. ( 26 ) THIS Court cannot but take notice of the fact that the petitioner was suspended in the year 1991 and the charge sheet was issued in the year "1998 and there is not an iota evidence on record to show that as to why was the abnormal delay in issuing the charge sheet. ( 27 ) THIS Court has no doubt in its mind that a fair treatment was not given to the petitioner. The report of the Enquiry Officer is without any evidence and is based on surmise and conjecture. ( 28 ) THEREFORE, the orders passed by the disciplinary authority and the appellate authority cannot be sustained. The orders passed by the disciplinary authority and the appellate authority are, therefore, set aside. The petitioner is reinstated in service. However, the question as regards the back wages of the petitioner shall be considered by the authority in accordance with law. The petitioner is also entitled to costs assessed at 600 gms. ( 29 ) MR. Sen prays for stay of operation of this order. Such prayer is considered and rejected.