JUDGMENT 1. - This revision petition has been filed by the petitioner against the judgment and order dated 2/11/1995 passed by the Sessions Judge, Jaipur District Jaipur in Criminal Appeal No. 31/1992 whereby he has upheld the judgment and order dated 14/7/1992 passed by Munsif and Judicial Magistrate Chomu in Criminal Case No. 71/85 by which he has convicted and sentenced the accused petitioner for offence under Section 467 and 409 IPC to 2 years R.I. and fine of Rs. 500 in default of payment of fine, to further undergo 2 months R.I. separately for each offence under Section 467 and 409 IPC. 2. The brief facts of the case are that 2/5/1981, the Superintendent of i Post Office, Jaipur lodged a report at police station Chomu alleging therein that the accused petitioner was working as sub-post master at Samod Post Office and during that period Pass Book of Saving Account No. 380697 of account holder Chouthmal was handed over to him on 25/4/1977 for entry of the interest. But, the petitioner has neither shown the balance nor sent the pass book for entry of interest to Jaipur nor returned the same to Chouthmal. During investigation it was found that petitioner withdrew Rs. 700 on 21/10/76, Rs. 600 on 30/4/1977 and Rs. 500 on 5/5/1977 from the passbook of Chouthmal. 3. The police after completing investigation submitted challan before the Court of Munsif and Judicial Magistrate, Chomu. Charge was framed for offence under Section 467 and 409 IPC against the petitioner who denied all the allegations leveled against him and claimed for trial. The prosecution examined as many as 14 witnesses and exhibited some documents. The petitioner was also examined under Section 313 Cr. P.C. The learned Magistrate after hearing both the sides, convicted and sentenced the accused petitioner vide order dated.14/7/1992 as indicated above. 4. The petitioner feeling aggrieved with the aforesaid judgment and order of conviction and sentence dated 14/7/1992 preferred an appeal before the court of Sessions Judge, Jaipur District, Jaipur. The Sessions Judge vide his order dated 2/11/1995 dismissed the aforesaid appeal by upholding the order dated 14/7/1992 passed by the learned Magistrate, hence, this revision petition has been preferred before this Court. 5. Mr. The Sessions Judge vide his order dated 2/11/1995 dismissed the aforesaid appeal by upholding the order dated 14/7/1992 passed by the learned Magistrate, hence, this revision petition has been preferred before this Court. 5. Mr. S.M. Ali Advocate appearing on behalf of the petitioner has contended that the prosecution has failed to prove it's case beyond all reasonable doubts and the learned trial court as well as the appellate court has not appreciated the statements of prosecution witnesses properly in the light of the definition of Section 467 and 409 IPC. 6. The learned counsel has further drawn the attention of this Court on the specimen signatures which have been taken by P.W. 13 Investigating Officer before the Tehsildar Gopichand but the prosecution did not produce Gopichand Tehsildar and instead of Gopi Chand the prosecution has produced PW-14 Sugan Chand Tehsildar which is not permissible in criminal jurisprudence. He contended that when the case was fixed for recording statement of accused under Section 313 Cr. P.C., the prosecution moved an application for permission to call the Tehsildar Chomu just to fulfill the lacuna in this matter and the same should not be permissible in the eye of law. In support of this contention, he relied on a decision of this Court Balwant Singh and Others v. State of Rajasthan, reported in RLR 1986 p. 161 in which it has been held that recalling witnesses would amount to filling up gap or removing lacuna of prosecution case which is not permissible and the order of recalling witness was quashed. 7. Learned counsel further contended that the prosecution has utterly failed to prove the list of transaction of documents which was sent to Jaipur was in the hand writing of the petitioner and none else. He submitted that neither there is any hand writing expert report nor any other evidence on record to show that the list of documents of transaction has been sent by the petitioner and none else. Learned counsel has further drawn attention of this 'court that non hand writing expert was produced by the prosecution and in the instant case, simply relying on the report of hand writing expert and without any corroboration of any other evidence they have relied upon this report. Learned counsel has further drawn attention of this 'court that non hand writing expert was produced by the prosecution and in the instant case, simply relying on the report of hand writing expert and without any corroboration of any other evidence they have relied upon this report. He has further contended that PW 10 Kanhaiya Lal, Inspector Post Offices has stated that during the departmental enquiry he obtained signatures of petitioner and of Chotumal and he has also received other withdrawal forms from the Head Office. It Is contended that from the i evidence of PW 10, two types of withdrawal forms are in their possession and the prosecution has utterly failed to prove that the withdrawal form which was taken by PW 10 Kanhaiya Lal during departmental enquiry under whose possession it remained till it reached in the possession of Magan Singh. 8. Learned counself further contended that PW 3 Chouthmal was not certain as to when he deposited his pass book with the accused petitioner. According to him, he left his pass book one year prior to the date of 25/4/1977 and he submitted application for obtaining duplicate pass book on 18/3/1976 and got the same on 20/4/1976. By this way, the allegation that Chouthmal deposited original pass book with the petitioner became doubtful. Mr. Ali has drawn attention to Ex. According to him, he left his pass book one year prior to the date of 25/4/1977 and he submitted application for obtaining duplicate pass book on 18/3/1976 and got the same on 20/4/1976. By this way, the allegation that Chouthmal deposited original pass book with the petitioner became doubtful. Mr. Ali has drawn attention to Ex. P-5 which runs as under: " Jheku~ lqifjUMsUV lgkc Hkkjrh; Mkd rkj foHkkx t;iqj jktLFkku fo"k;&[kkrk la[;k 380697 dh ikl cqd u izkIr gksus ds dze esa }kjk& S.P.M. lkeksn ekU;oj egksn; lknj lfou; fuosnu gS fd eSaus Jheku fojnhpUnth HkwriwoZ iksLV ikmMj lkgc] lkeksn dks esjh ikl cqd C;kt tqM+oku ds fy, 24-4-77 dks nh Fkh mlds ckn mUgksaus esjh ikl cqd ugha yksVkbZ eSaus dbZ ckj mudks ikl cqd nsus ds fy, fuosnu dj fn;k ysfdu dHkh rks dgk fd vkidh ikl cqd esjs ikl gSA dHkh dgrs jgs ikl cqd fdlh nqljs vkneh dks ns nh ysfdu eq>s esjh ikl cqd ugha izkIr gqbZA ikl cqd nsus ds ckn esa eSaus dqN Hkh :i;s ugha fudyok;s gSaA esjs [kkrs esa 1874 :i;s 40 iSls fudyrs gSaA eq>s :i;ksa dh vko';drk gS eSa esjs [kkrs esa ls :i;s fudyokuk pkgrk gwaA Jheku~ th lknj fuosnu gS fd esjh ikl cqd okfil fnyokus dh d`ik QjekoS rkfd :i;ksa dk vHkko izkFkhZ dk dksbZ t:jh dk;Z viw.kZ ugha jgsA cM+h d`ik gksxhA ikl cqd dh jlhn esjs ikl ekStwn gSA fnukad %& 3-1-79 vkidk izkFkhZ pkSFkey 'kekZ D.M.C. ekuiqjk ekpsM+h " 9. According to Ex. P. 5, Chouthmal deposited the pass book on (24/4/1977) and that day was Sunday and according to the learned counsel, how it was possible to deposit the pass book on Sunday in the office of the petitioner. He has shown photo copy of the Calender of that year which is to be taken on record. He further contended that the occurrence took-place earlier than deposit of pass book on 24/4/1977 and withdrawal of 21/101976 is of earlier date, FIR has been lodged on 2/5/1981 and there was no explanation of delay in filing the FIR, hence, the prosecution has failed to prove it's case. 10. He further contended that the occurrence took-place earlier than deposit of pass book on 24/4/1977 and withdrawal of 21/101976 is of earlier date, FIR has been lodged on 2/5/1981 and there was no explanation of delay in filing the FIR, hence, the prosecution has failed to prove it's case. 10. In support of his contention, learned counsel has drawn attention to the decision of Apex Court in Bhagwan Kaur v. Maharaj Krishan Sharma and Others, reported in AIR 1973 SC 1346 , on the point of hand writing expert, held as under: "Evidence Act (1872), section 45-Expert Evidence- Evidence of handwriting expert. The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The court should, therefore, be wary to give too much weight to the evidence of handwriting expert. Conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case." 11. He further relied upon decision of Apex Court in Narender Singh and Another v. State of M.P., reported in AIR 2004 SC 3249 "S. 300-Murder-Circumstantial evidence-proof-Alleged demand of dowry and harassment by husband and in-laws-Death of wife by burn injuries-Vital link in chain, viz., possibility of accused-husband committing offence, closing door and then sneaking out of room, place of occurrence, from one of two probable places-Not proved by prosecution-Cause of death of deceased shrouded in mystery-Benefit thereof must go to accused persons as in event of there being two possible views, the one supporting accused should be upheld." 12. Reliance has also placed on the decision of Division Bench of this Court in Shyama @ Shyamal v. State of Rajasthan, reported in CRIMES IX-1984(2) held as under : "Suspicion however, strong cannot take the place of proof and conviction cannot be based on mere suspicions. The prosecution has failed to prove its case beyond reasonable doubt. and the benefit of doubt has to be given to the accused". 13. Mr. P.S. Srimal, learned P.P. has opposed the arguments advanced by the learned counsel for the petitioner and contended that the trial court after due appreciation of the evidence convicted the accused petitioner for the offence under Section-467 and 409 IPC as indicated above. and the benefit of doubt has to be given to the accused". 13. Mr. P.S. Srimal, learned P.P. has opposed the arguments advanced by the learned counsel for the petitioner and contended that the trial court after due appreciation of the evidence convicted the accused petitioner for the offence under Section-467 and 409 IPC as indicated above. He has drawn the attention of this Court on the statement of Chouthmal as well as other prosecution witnesses who proved the case of prosecution. The investigation officer has clarified each and everything of the prosecution version in his statement and nothing remains more. The Tehsildar Sugan Chand P.W. 14 has also supported the prosecution story. When P.W. 14 (Sugan Chand) was produced by prosecution, then there is no need to produce Tehsildar Gopi Chand, it cannot be said on behalf of the petitioner that the opinion of the hand writing expert is a very weak evidence. There is no illegality or infirmity in the order of both the courts below and the revision petition be dismissed. 14. I have heard learned counsel for the parties and also gone through the record and perused the orders passed by both the courts below. 15. Statement of Chouthmal and the Ex. P. 5 which has been written by Chouthmal are contradictory from each other. I am satisfied with the arguments advanced by learned counsel for the petitioner that on 24/4/1977 was Sunday and on that day pass book cannot be handed over to the petitioner. P.W. 13 Magan Singh Investigation Officer in his statements has stated that application for taking specimen signature submitted before the Tehsildar is not available on record and there is no seal on the specimen. 16. From the perusal of the statements P.W. 13 Investigation Officer who is very important witness of the prosecution who had accepted this fact that he recognised the signature of Gopichand and Gopi Chand who is the main witness who obtained signatures of accused petitioner being Tehsildar was not produced and P.W. 14 Suganchand was produced. It is very surprising on behalf of prosecution after recording statement under Section 313 Cr. P.C., they moved an application to produce another witness Suganchand striking in the mind of the Court as to why prosecution produced Suganchand instead of producing Gopichand Tehsildar which was opposed by the accused petitioner at the time of recording statements. It is very surprising on behalf of prosecution after recording statement under Section 313 Cr. P.C., they moved an application to produce another witness Suganchand striking in the mind of the Court as to why prosecution produced Suganchand instead of producing Gopichand Tehsildar which was opposed by the accused petitioner at the time of recording statements. There is also doubt about prosecution version that the specimen signature of the accused petitioner was obtained before the Tehsildar or in police station because P.W. 14 Suganchand says that he was in police station where no witnesses were produced. That the Specimen signatures were taken in Tehsil, P.W. 13 Magan Singh Investigation officer does not say anything about this witness P.W. 14 Suganchand. 17. For these reasons, I do not find it necessary to discuss the other circumstances relied upon by the Sessions Judge as well as the trial court on which prosecution has placed its case. Prosecution has not been able to prove its case as mentioned above. This court is left with no alternative but to acquit the accused petitioner in this case. Case is dependent on mere suspicions. Conviction cannot be based on mere suspicions. Prosecution has failed to prove its case beyond reasonable doubt and benefit of doubt has to be given to the accused. Benefit, thereof, must go to the, petitioner as in the event of there being two possible views, the one supporting the accused should be upheld. 18. Hence, I allow this revision petition and the judgment and order 1 dated 14/7/1992 passed by Munsif and Judicial Magistrate, Chomu as well as the order dated 2/11/1995 passed by Sessions Judge, Jaipur District Jaipur are hereby set-aside. Accused petitioner is on bail bonds, they need not be surrendered.Revision petition is allowed.Revision Allowed. *******