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2009 DIGILAW 745 (GAU)

Satyajit Roy v. State of Tripura

2009-10-28

UTPALENDU BIKAS SAHA

body2009
JUDGMENT U.B. Saha, J. 1. The present revision petitioner, namely, Shri Satyajit Roy, was tried and convicted by the learned Chief Judicial Magistrate, West Tripura, Agartala under Section 409/34, IPC and also under Section 201/34, IPC and sentenced along with two others to suffer S.I. for two years and S.I. for one year respectively on further direction that both the sentence would run consecutively vide judgment dated 1.11.2004 passed in G.R. Case No. 1503 of 1990. Aggrieved by, he carried an appeal being Criminal Appeal No. 71(4)/2004 against the said judgment and order to the learned Addl. Sessions Judge, West Tripura, Agartala, but the appeal was unsuccessful. Hence, the instant revision petition. 2. The facts giving rise to the prosecution have been set forth in detail in the judgment of the appellate court. Hence, it is not necessary to reiterate the detailed facts. However, short facts of the prosecution case are stated hereunder: On 6.11.1990, an FIR was lodged by Sri Bibhuti Bhusan Laskar, the then Bank Manager of Tripura Gramin Bank, Agartala Branch (PW1) for alleged defalcation of Rs.2,00,000 by withdrawal with cheque No. 438085 on 10.6.1986 from the Current Deposit A/C No. 2671 being maintained with United Bank of India, Agartala Branch. On he basis of the said information, West Agartala P.S. Registered a Case No. 5(11)/90 under Sections 468/471/409/201, IPC. Accordingly, investigation was made and on transfer, the case was finally investigated by the CID of Police. Charge sheet was submitted against the accused persons, namely, (1) Nityagopal Roy, the then regular Branch Manager, (2) Kanulal Das, the then In-charge Branch Manager, and (3) Satyajit Roy, the clerk of Tripura Gramin Bank, Agartala Branch, the petitioner herein The G.R. Case No. 1503/90 arisen our of the said charge sheet ended in acquittal of all the three accused persons after full trial by the Chin Judicial Magistrate vide judgment dated 18.10.1993. 3. Being dis-satisfied with the judgment of acquittal, the State of Tripura had preferred an appeal before this Court being Crl. Appeal No. 17 of 1994. 3. Being dis-satisfied with the judgment of acquittal, the State of Tripura had preferred an appeal before this Court being Crl. Appeal No. 17 of 1994. On hearing the parties, the case was remanded by this Court vide order dated 23.9.1997 for retrial to the Chief Judicial Magistrate, West Tripura, Agartala with direction to initiate the proceeding as provided under Section 319, Cr.PC to implicate three responsible officials of United Bank of India, Agartala Branch and arrange trial as per observation made in the judgment including examination of remaining prosecution witnesses. On receipt of the judgment of this Court and after considering the application filed under Section 319, Cr.PC, the learned Chief Judicial Magistrate by an order dated 20.4.1998 directed issuance of summon upon the three responsible officials of United Bank of India, Agartala Branch, namely, (1) Pranab Kanti Roy, Dy. Manager, as he then was (2) Anil Chandra Sarkar, Head Clerk, as he then was and (3) Narayan Chandra Shil. Daftry, as he then was to appear before the trial court and face trial in connection with G/R. Case No. 1503 of 1990 along with other three accused persons. But against the said order, a criminal revision was filed before this Court being Cri. Revision No. 24 of 1998. After hearing the parties, this Court by an order had quashed the order dated 20.4.1998 of the learned Chief Judicial Magistrate, i.e., the order directing issuance of summon. Hence, there remained only three charge sheeted accused for re-trial. 4. The retrial was based on earlier charge as framed against all the three accused persons under Sections 409/201/34, IPC. The prosecution examined as many as eight witnesses and also relied on some documents. At the conclusion of the trial, the learned trial court convicted the petitioner along with other accused to suffer S.I. for 2 years for commission of offence punishable under Section 409/34, IPC and also convicted to suffer S.I. of one year for commission of offence punishable under Section 201/34, IPC. 5. Heard Mr. S. Talapatra, learned senior Counsel for the petitioner and Mr. S. Chakraborty, learned P.P., In-charge of the case appearing for the State respondent. 6. 5. Heard Mr. S. Talapatra, learned senior Counsel for the petitioner and Mr. S. Chakraborty, learned P.P., In-charge of the case appearing for the State respondent. 6. The findings of the trial court to convict the petitioner are solely based on an opinion evidence of hand-writing expert who was not produced for examination despite not being the report covered under Sections 292 and 293 of the Cr.PC, and also apparently on the evidence of PW1 the informant of the case and some documentary evidence as exhibited. However, it is not necessary to discuss the evidence of all the prosecution witnesses, particularly, when those are available in the judgment of the trial court. For better appreciation, the evidence of PW1 is reproduced hereunder: PW1 stated that he was serving as Branch Manager, Tripura Gramin Bank, Agartala Branch. Since first part of 1990, he tried to reconcile the account up to date in the Bank ledger. Their current deposit account No. with UBI, Agartala is 2671. During reconciliation, he found some discrepancies relating to the account of UBI, Agartala Branch for the month of June 1986. He found discrepancies of Rs.2 lakh with the UBI, Agartala Branch. The said amount as not entered into the various registers maintained by the Bank. UBI, Agartala Branch debited Rs.2 lakh from their account as the said amount was withdrawn by a cheque. He did not know who based the cheque, but the amount was debited on 10.6.1986. This witness went on to state that, generally Branch Manager is authorised to sign such a cheque. In absence of Branch Manager, In-charge Branch Manager can sign the cheque provided he is specially empowered to do so. On the relevant period Nitya Gopal Roy was the Branch Manager of Agartala Branch. Nitya Gopal Roy went on leave and he resumed his duties on 10.6.1986. This witness further states that the cheque books remain in the custody of the Branch Manager. In absence of Branch Manager, such cheque books remain in the custody of In-charge Branch Manager. This witness has also stated that for withdrawal of money from other bank, concerned clerk prepares the cheque and on production of the same, the Branch Manager put his signature in the cheque. Generally concerned clerk who prepares the cheque goes to the concerned Bank for withdrawal of money. This witness has also stated that for withdrawal of money from other bank, concerned clerk prepares the cheque and on production of the same, the Branch Manager put his signature in the cheque. Generally concerned clerk who prepares the cheque goes to the concerned Bank for withdrawal of money. Prior to withdrawal of money, Branch Manager attested the signature of the concerned clerk. The attestation of signature is done on the reverse side of the cheque. After withdrawal of money, a cash voucher is prepared in the Bank and the same is entered in the scrawl register and the amount is deposited to the cashier. But in respect of the said two lakh of rupees which was drawn on 10.6.1986, no entry was mode in the scrawl register. Generally, cash credit voucher is prepared by the clerk who carried the money. At the time of issuance of cheque, they debit the amount in their cheque issue register. He also went on to state that after detection of discrepancy of Rs.2 lakh, he informed the matter to the chairman who directed him to inform the matter to the Police Station. On seeing the entries dated 7.6.1986 in the Bank account ledger, he stated that the person who entered the amount in the ledger put his initial therein but it is not possible on his part to say who made the entries. On seeing tie ledger, this witness also stated that there is an over writing on the entry dated 2.6.1986. He also stated that the employee who worked during the relevant period may identify the writing. On 8.3.1991, I.O., seized some casual leave application of acc. Satyajit Roy from their Branch by preparing the seizure list in his presence. He also identified the seizure list as Exbt. P2/1, I.C. also seized cash receipt scrawl of Agartala Blanch of Gramin Bank with effect from 6.8.1985 to 31.7.1986 by preparing seizure list in his presence. As witness he put his signature in the said seizure list. He identified his signature as well as the cash receipt scrawl as Exbt. M.O.I. In his cross, he stated about some procedures maintained by the Bank regarding attendance register, allocation of works and cheque issuance register. As witness he put his signature in the said seizure list. He identified his signature as well as the cash receipt scrawl as Exbt. M.O.I. In his cross, he stated about some procedures maintained by the Bank regarding attendance register, allocation of works and cheque issuance register. Not only that, he also stated that the movement register is maintained in the Bank for showing the movements of the officer, but in the attendance register, time of entry and departure of the employees are mentioned and the concern employee is to put his signature in the attendance register. And the attendance register is kept under the custody of an officer of the Bank. After preparation of cash credit voucher by the carrier, Branch Manager puts his signature on it and then he handed over it to the cashier. They also issue cheques on other banks for their customers. After receipt of the amount by the cashier, the same is to be sent to the ledger section for entering the same in other ledger. In his cross, he has stated about some other evidence which are not required to be reproduced herein as those have no bearing so far as the present accused pensioner's concerned. 7. Mr. S. Talapatra learned senior Counsel appearing for the accused petitioner while criticizing the impugned judgment of the trial court as well as the appellate court would contend that admittedly the accused petitioner was neither manager of the Bank nor an officer of the Bank. He was working merely as junior clerk on the date of alleged misappropriation and in UBI being a lead bank of the said Gramin Bank, there is no such evidence when and how and by whom the present petitioner was entrusted with the alleged cheque No. 438085 for drawing Rs.2 lakh for Gramin Bank from the lead Bank UBI. He also contended that cheque which was produced before the court as an evidence was a torn cheque, number of cheque was not visible. Therefore, a doubt was to be created in the mind of the court whether that was the torn part of the said alleged cheque or not. More so whether the torn cheque is relating to so called withdrawal of Rs.2 lakh for the Gramin Bank from the lead Bank UBI. Therefore, a doubt was to be created in the mind of the court whether that was the torn part of the said alleged cheque or not. More so whether the torn cheque is relating to so called withdrawal of Rs.2 lakh for the Gramin Bank from the lead Bank UBI. He also contended that though hand writing on the cheque was examined by the hand writing expert, but the said expert was not produced and examined by the prosecution at the trial. As a result, convict appellant petitioner did not get any opportunity to cross-examine the hand writing expert and challenge the veracity of the report. He further contended that admittedly both the learned trial court as well as appellate court observed that the Bank Manager is the custodian of the cheque book and the counter-foil of the three cheques were found missing. Therefore, there is no scope to connect the present petitioner with the alleged mis-appropriation and defalcation of money without proving the entrustment relating to handover of the cheque for collection of money from the lead bank particularly when both the co-accused, namely, Nitya Gopal Roy, the then Manager of the Bank and Kanulal Das, the Dy. Manager of the Bank have already been acquitted by the trial court as well as appellate court on the benefit of doubt. Basing on the same set of evidence, the accused petitioner cannot be convicted as it is a settled law that when basing on the same set of evidence one accused is acquitted, another cannot be convicted. He also urges that it is the admitted position that the Manager of the Bank are entrusted with the management of the fund and issuance of cheque for the Bank for collection of money, etc., and junior clerk like the present accused petitioner has no function so far as issuance of cheque is concerned. While he was urging for setting aside the impugned judgment and order of conviction by the trial court which was upheld by the appellate court he contended that to prove an offence under Section 409, IPC, the first duty of the prosecution is to prove the entrustment as the entrustment is the sine quo non for proving the defalcation in the instant case. The duty of the prosecution was first to prove the entrustment of cheque to the accused petitioner which the prosecution failed to do. The duty of the prosecution was first to prove the entrustment of cheque to the accused petitioner which the prosecution failed to do. When the prosecution failed to prove the entrustment, it was the duty of the court below to disbelieve the case of the prosecution so far as the alleged defalcation is concerned. According to him, another fatal aspect is that PW2, namely, Pradyut Kr. Ghosh who was the Chief General Manager deposed before the court that Deputy Manager remained with the charge of the record room and doftry is only permitted to enter into the record room. Therefore, it is the admitted position that at no point of time, so far as the custody and access to the cheque book and records of negotiable instrument were available with the present accused petitioner, as there is no other evidence against the present petitioner either directly or indirectly to show that he caused disappearance of the counter foil of the cheque or torn in original cheque in the record room of the lead Bank UBI. Learned Counsel also pointed out that PW3 stated that he had no occasion to go through the hand writing of the accused petitioner. Therefore, the conviction of the petitioner on the basis of the common evidence of hand writing expert but in absence of him in the witness box and without any corroboration cannot be taken into consideration for the purpose of conviction of an accused like the present petitioner. He finally contended that the presence of an hand writing expert is a mandatory as his report is not covered by Sections 292 and293, Cr.PC. 8. He also contended that PW1 though identified the signature of the petitioner on his casual leave application and attendance register, but he did neither say anything regarding the torn cheque, Exbt. M-7, nor identified the same. Therefore, the prosecution failed to connect the accused petitioner in any manner with the torn cheque. 9. In support of his aforesaid contention, the placed reliance on the decisions of the Apex Court in the case of State of Maharashtra v. Damu Gopinath Shiinde 2000 Cri. LJ 2301 particularly he referred to paras-40 and 41. M-7, nor identified the same. Therefore, the prosecution failed to connect the accused petitioner in any manner with the torn cheque. 9. In support of his aforesaid contention, the placed reliance on the decisions of the Apex Court in the case of State of Maharashtra v. Damu Gopinath Shiinde 2000 Cri. LJ 2301 particularly he referred to paras-40 and 41. He also placed reliance to support his case to the decision of the Apex Court in the case of Magan Bihari Lal v. The State of Punjab (1977) 2 SCC 210 , particularly para-7 as well as the decision in the case of S. Gopal Reddy v. State of A.P. (1996) 4 SCC 596 particularly paras-28 and 29. 10. Per contra, Mr. S. Chakraborty, learned P.P., In-charge of the case while resisting the submission of Mr. Talapatra, submits that mere acquittal of co-accused cannot be the basis for setting aside the order of conviction of another accused like the accused petitioner herein. He also contended that the presence of hand writing expert before the trial court is not a sine qua non as the opinion of the hand writing expert has already been accepted which is a part of evidence. Though on query of this Court. Mr. Chakraborty admitted that the Bank Manager Nitya Gopal Roy who has already been acquitted was entrusted with the cheque book and under his control the Branch normally functioned. He fairly submits that for proving the allegation under Section 409, IPC, there must be an entrustment with the property or with any dominion over the property, and then only question of dishonest and misappropriation or convert of property for the use of the accused would come to question. According to him, in the instant case, the prosecution failed to prove the entrustment with any property like cheque or alleged defalcation of the amount in question with the accused petitioner. He tried to upheld the decision of the courts below on the ground that hand writing expert in his opinion specifically stated that hand wring in the torn cheque is the hand writing of the present accused person. 11. As Mr. Talapatra mainly based his argument on Sections 292 and 293, Cr.PC, it would be proper for this Court to reproduce the aforesaid sections of Cr.PC. 292. 11. As Mr. Talapatra mainly based his argument on Sections 292 and 293, Cr.PC, it would be proper for this Court to reproduce the aforesaid sections of Cr.PC. 292. Evidence of officers of the Mint.- (1) Any document purporting to be a report under the hand of any such gazetted officer of the Mint or of the India Security Press (including the office of the controller of Stamps and Stationery) as the Central Government may, by notification, specify in this behalf, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code, although such officer is not called as a witness. (2) The court may, if it thinks fit, summon and examine any such officer as to the subject-matter of his report: Provided that no such officer shall be summoned to produce any records on which the report is based. (3) Without prejudice to the provisions of Sections 123 and124 of the Indian Evidence Act, 1872 (1 of 1872), no such officer shall, except with the permission of the Master of the Mint or the India Security Press or the Controller of Stumps and Stationery, as the case may be, be permitted- (a) to give any evidence derived from any unpublished official records on which the report is based; or (b) to disclose the nature or particulars of any test applied by him in the course of the examination of the matter or thing. 293. Reports of certain government scientific experts.- (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. (2) The court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. (3) Where any such expert is summoned by a court and he is unable to attend personally, he may, unless the court has expressly directed him to appear personally depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in court on his behalf. (4) This section applies to the following Government scientific experts, namely: (a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Inspector of Explosives; (c) the Director of the Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay; (e) the Director, (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory; (f) the Serologist to the Government. 12. In Magan Bihari Lal (supra), the Apex Court while discussing regarding evidence of expert opinion took note of the earlier decision of the Apex Court in Ram Chandra v. State of U.P. AIR 1957 SC 381 as well as the decision in Ishwari Prasad Mishra v. Md. Isa AIR 1963 SC 1728 wherein it has been stated that the expert evidence of hand writing can never be conclusive because it is, after all, opinion evidence, and the said view of the Apex Court was also reiterated in the case of Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 wherein it has been pointed out by the Apex Court that the expert evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. The Apex Court in the case of Fakhruddin v. State of M.P. AIR 1967 SC 1326 also considered the evidentiary value of expert opinion in regard to hand writing and it uttered a note of caution pointing 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. The Apex Court also noted the observation of the Supreme Court of Michigan in the case of Alfred Foster's Will wherein the Supreme Court of Michigan noted that "Every one knows how very unsafe it is to rely upon any one's opinion concerting the niceties of penmanship - opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil". The Apex Court taking note of the aforesaid observation of the Supreme Court of Michigan stated that "we need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be doubt that this type of evidence, being opinion evidence is by its vary nature, weak and inform and cannot of itself from the basis for a conviction". The case of Magan Bihari Lal (supra) has also been followed in the case of S. Gopal Reddy (supra), as evident from paras-28 and 29 of the report which are reproduced hereunder: 28. Thus, the evidence of PW3 is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering 'conclusive' proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab (1977) 2 SCC 210 , while dealing with the evidence of a handwriting expert, this Court opined: (SCC pp. 213-14, para 7). ...We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. AIR 1957 SC 381 , that it is unsafe to treat expert handwriting opinion as sufficient basis of conviction, but it may be relied upon when supported by other items of internal and external evidence. It was held by this Court in Ram Chandra v. State of U.P. AIR 1957 SC 381 , that it is unsafe to treat expert handwriting opinion as sufficient basis of conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v. Mohd. Isa AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated enter by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. AIR 1967 SC 1326 and it uttered a note of caution pointing 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. 29. We are unable to agree, in the established facts and circumstances of this case, with the view expressed by the courts below that PW1 is a competent witness to speak about the handwriting of the appellant and that the opinion of PW3 has received corroboration from the evidence of PW1. PW1 admittedly did not receive any of those letters. He had no occasion to be familiar with the handwriting of the appellant. He is not a handwriting expert. The bald assertion of PW1 that he was 'familiar' with the handwriting of the appellant and fully 'acquainted' with the contents of the letter, admittedly not addressed to him, without disclosing how he was familiar with the handwriting of the appellant, is difficult to accept. Section 67 of the Evidence Act, 1872 enjoins that before a document can be looked into it has to be proved. Section 67, of course, does not prescribe any particular mode of proof. Section 67 of the Evidence Act, 1872 enjoins that before a document can be looked into it has to be proved. Section 67, of course, does not prescribe any particular mode of proof. Section 47 of the Evidence Act which occurs in the chapter relating to 'relevancy of facts' provides that the opinion of a person who is acquainted with the handwriting of a particular person is a relevant fact. Similarly, opinion of a handwriting expert is also a relevant fact for identifying any handwriting. The ordinary method of proving a document is by calling as a witness the person who had executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting. There are some other modes of proof of documents also as by comparison of the handwriting as envisaged under Section 73 of the Evidence Act or through the evidence of a handwriting expert under Section 45 of the Act, besides by the admission of the person against whom the document is intended to be used. The receiver of the document, on establishing his acquaintance with the handwriting of the person and competence to identify the writing with which he is familiar, may also prove a document. These modes are legitimate methods of proving documents but before they can be accepted they must bear sufficient strength to carry conviction. Keeping in view the inconclusive and indefinite nature of the evidence of the handwriting expert PW3 and the lack of competence on the part of PW1 to be familiar with the handwriting of the appellant, the approach adopted by the courts below to arrive at the conclusion that the disputed letters were written by the appellant to Ms. Vani on the basis of the evidence of PW1 and PW3 was not proper. The doubtful evidence of PW1 could neither offer any corroboration to the inconclusive and indefinite opinion of the handwriting expert PW3 nor could it receive my corroboration from the opinion of PW3. We are not satisfied, in the established facts and circumstances of this case, that the prosecution has established either the genuineness or the authorship of the disputed letters allegedly written by the appellant from the evidence of PW1 or PW3. We are not satisfied, in the established facts and circumstances of this case, that the prosecution has established either the genuineness or the authorship of the disputed letters allegedly written by the appellant from the evidence of PW1 or PW3. The courts below appear to have taken a rather superficial view of the matter while relying upon the evidence of PW1 and PW3 to hold the appellant guilty. We find it unsafe to base the conviction of the appellant on the basis of the evidence of PW1 or PW3 in the absence of substantial independent corroboration, internally or externally, of their evidence, which in the case is totally wanting. 13. In that case, the Apex Court has also dealt with Sections 67 and 47 of the Evidence Act, In para-29 of the said report, the Apex Court noted that Section 67, of course, does not prescribe any particular mode of proof while Section 47 of the Evidence Act which occurs in the chapter relating to "relevancy of facts" provides that the opinion of a person who is acquainted with the handwriting of a particular person is a relevant fact. Similarly, opinion of a hand writing expert is also a relevant fact for identifying any handwriting. The ordinary method of proving a document is by calling as a witness the person who had executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting. And there are some other modes of proof of documents also as by comparison of the handwriting as envisaged under Section73 of the Evidence Act or through the evidence of a handwriting expert under Section 45 of the Act, besides by the admission of the person against whom the document is intended to be used. 14. The case of Damu Gopinath Shinde (supra) as relied by Mr. Talapatra also dealt with opinion forwarded by a handwriting expert holding that the scribe who wrote the slip and the specimen manuscripts was the same. Considering the opinion of the hand writing expert, the Apex Court held that in the said judgment, that "Exh. 64 is only the opinion of the Asst. State Examiner of Documents. From that description alone it cannot be gathered whether his office would fall within the purview of Section 293 of the code. Considering the opinion of the hand writing expert, the Apex Court held that in the said judgment, that "Exh. 64 is only the opinion of the Asst. State Examiner of Documents. From that description alone it cannot be gathered whether his office would fall within the purview of Section 293 of the code. Hence, without examining the expert as a witness in court, no reliance can be placed on Exh. 64 alone". 15. Upon hearing all the parties and on careful going through the record available before this Court, including the record of the lower courts, this Court finds it difficult to sustain the conviction of the accused petitioner as there is no such evidence except the opinion evidence of the handwriting expert and partly the evidence of PW1 which cannot be taken into consideration without any corroboration from the independent witnesses. According to the Apex Court, expert, opinion is a weak type of evidence and the order of conviction cannot be based on such opinion without any corroboration of the evidence and the same cannot be considered as a substantial evidence also. PW1 though in his statement stated that he knew hand writing of the present accused petitioner and identified the signature of the accused petitioner in the casual application as well as in the attendance register, but from that, a court of justice cannot come to a conclusion that the accused petitioner is the offender of the alleged offence as he did not state in his evidence how and on what occasion he had seen the accused petitioner at the time of writing or putting his signature. Unless a person has a direct witness of writing of another person, the evidence of such a person cannot be considered as a truthful witness unless circumstances justify that he had an opportunity to see the accused at the time of writing. In the instant case PW1 the informant thawing had a chance to see the accused petitioner at the time of writing when he was discharging his of official duties, but there is no statement made by PW 3 that he had any occasion to see the accused petitioner at the time of writing or putting his signature. In the instant case PW1 the informant thawing had a chance to see the accused petitioner at the time of writing when he was discharging his of official duties, but there is no statement made by PW 3 that he had any occasion to see the accused petitioner at the time of writing or putting his signature. Not only that he also did not identify writing of the torn cheque on the basis of which the hand writing expert gave his opinion and PW3 though at the relevant time was the In-charge Manager of the Bank had the opportunity to see the handwriting of the accused petitioner, he stated he had no occasion to go through the hand writing of the accused petitioner. Therefore, the sole basis of conviction on the basis of the alleged hand writing of the accused petitioner fails. 16. Mr. Talapatra has rightly contended that when on the basis of the same evidence a co-accused has been acquitted by a court, it is the duty of the court to acquit another accused against the same set of evidence as the case of the petitioner stands on the same footing. Moreover, Section 34 of the IPC is not a distinct offence. This section has an application when a criminal act is done by several persons in furtherance of common intention of all. In the instant case, when two other accused have already been acquitted by the trial court and the accused petitioner remained alone, Section 34, IPC has no application at all. Not only that, the evidence did not establish how and when the present accused has written on the alleged cheque or put his signature and who are involved with common intention with him to do the alleged offence of defalcation and/or disappearance of the counterfoil. 17. One accused is entitled to get the benefit of acquittal of the another co-accused on the same set of evidence. In the instant case, the prime accused namely, Nitya Gopal Roy, the Bank Manager has been acquitted by the court below and on the same set of evidence the petitioner was convicted which was not proper. According to this Court, the present petitioner convict is also entitled to get acquittal as his co-accused has already acquitted on the same set of evidence. 18. According to this Court, the present petitioner convict is also entitled to get acquittal as his co-accused has already acquitted on the same set of evidence. 18. It is settled law that in a criminal case, if the prosecution fails to produce any witness like in the instant case, the hand writing expert, an adverse presumption is to be drawn against the prosecution for non-production of the said witness. In the instant case, the prosecution even did not try to examine the handwriting expert. Not only that the trial court also did not feel it necessary to examine handwriting expert even when the Apex Court observed that without examining the expert as a witness in court no reliance can be placed on the opinion evidence. In the instant case, there can be no doubt that relying on the opinion evidence and the evidence of PW1, the courts below committed an error and accused on emotion and sentiments, rather without legal admissible and trustworthy evidence to influence their judgment. The evidence on record does not establish the case against the accused petitioner beyond reasonable doubt. He is, therefore, entitled to get the acquittal as the prosecution has totally failed to bring home the charges against the accused petitioner under Section 409/201/34, IPC. 19. Revision thus succeeds and is allowed. In the result, the conviction and sentence of the accused petitioner is hereby set aside. As the accused petitioner is on bail, his bail bond shall stand discharged. Petition allowed.