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2010 DIGILAW 127 (GUJ)

PARSHNATH ASTHANA v. STATE OF GUJARAT

2010-03-08

Z.K.SAIYED

body2010
JUDGMENT 1. The appellant has preferred this appeal under sec. 374 of CrPC against the judgment and order of conviction and sentence passed by the learned Special Judge, City Civil & Sessions Court, Court No. 4, Ahmedabad in Special Case No. 42/1990, whereby, the learned Special Judge has convicted the appellant under sec. 420 of IPC and sentenced to suffer R/I for six months, the appellant is convicted under sec. 467 of IPC and sentenced to suffer R/I for six months and to pay a fine of Rs. 200/-, in default, to suffer further R/I for one month, the appellant is convicted under sec. 468 of IPC, and sentenced to suffer R/I for six months, the appellant is convicted under sec. 471 of IPC, and sentenced to suffer R/I for six months and under sec. 5(2) of the Prevention of Corruption Act, the appellant is convicted and sentenced to suffer R/i for six months and to pay a fine of Rs. 300/-, in default, to undergo further R/I for two months. Ld. Judge has also ordered that all the sentences to run concurrently. 2. The brief facts of the prosecution case are as under: 3. The appellant-accused was working as Station Master at Waghai railway station with Western Railway during the year 1987-88. The appellant entered into a criminal conspiracy with one unknown person with the object to cheat the Railway Department by submitting forged/false overtime bills and by obtaining the claimed amount thereof. As per rules, overtime is claimed by an employee when he performs the duty in addition to the duty hours which he has to perform and as per the duty list, no overtime can be claimed on holidays. In railway Department, if an employee is posted to a Railway Station, he is given pick-up duty to get conversant with his duties in that Railway Station. This pick-up duty is treated as training period. The employee is not supposed to claim any over time as he is not entitled for the same as per the rules. It is alleged by the prosecution that the appellant who was posted at Waghai Railway Station as Station Master remained on pick up duty from 13.12.1987 to 3.2.1988. This pick-up duty is treated as training period. The employee is not supposed to claim any over time as he is not entitled for the same as per the rules. It is alleged by the prosecution that the appellant who was posted at Waghai Railway Station as Station Master remained on pick up duty from 13.12.1987 to 3.2.1988. It is alleged that in pursuance of the above mentioned criminal conspiracy, the appellant did the following acts of omission/commission:- (i) That appellant claimed and received overtime for the above mentioned period by submitting over time vouchers for 216 hours. That the appellant forged rubber stamp impression and initials of T.I. Surat, and received the payment thereof. (ii) That the appellant was on rest on 5th, 6th and 7th May, 1988 and Mr AJ Patel performed the duty as Station Master at Waghai, but the appellant had claimed and received over time for 51 hours. It is alleged that similarly on 8.5.1988 the appellant had claimed overtime for 5 hours, whereas, during the period of over time shown and claimed by the appellant, Mr AJ Patel had performed the duty as Station Master. (iii) That on 14.5.1988, the appellant was on rest but had claimed and received over time for 9 hours during which Mr AJ Patel performed the duties as Station Master at Waghai Railway Station. On 15.5.1988, Mr AJ Patel had performed the duties as Station Master but the appellant had claimed and received overtime for 17 hours. That on 24.6.1988, the appellant was off-duty from 14 hours but had claimed and received over time for 9 hours. That on 6.7.1988, the appellant was off-duty from 14 hours but had claimed and received overtime for 5 hours, where Mr AJ Patel had performed the duties as Asstt. Station Master, Waghai. (iv) It is further alleged by the prosecution that in the manner above, the appellant had claimed and received overtime for 2 ? hours on 18.3.1988 and 2 ? hours between 21.3.1988 to 26.3.1988 during which period Mr VC Patel performed the duties as A.S.M., Waghai. That thus, the appellant had claimed and received amount of overtime for 32 hours when he had not performed any duty and was not entitled to the same. hours on 18.3.1988 and 2 ? hours between 21.3.1988 to 26.3.1988 during which period Mr VC Patel performed the duties as A.S.M., Waghai. That thus, the appellant had claimed and received amount of overtime for 32 hours when he had not performed any duty and was not entitled to the same. It is alleged that Waghai Railway Station was managed by one A.S.M., i.e. by the appellant and whenever rest/off duty was due to him, other A.S.M. namely Mr AJ Patel and Mr VC Patel used to perform their duties. It is alleged that the accused used to maintain carbon copies of overtime vouchers submitted by him. 4. It is the prosecution case that on 30.7.1988, at about 15.30 hours, when the appellant was on duty at Waghai Railaway station a search was conducted by a team of Officers of Western Railway. During the search, carbon copies of overtime vouchers wherein forged signatures and rubber stamps of T.I. Surat and the forged rubber stamps which were used on those vouchers were also recovered from the table of the appellant. A detailed panchnama was prepared by the raiding officers with regard to the recovery of the forged rubber stamps and O.T. Vouchers from the possession of the appellant. The panchnama was prepared in the presence of the officers and the same was signed by the officers. That the appellant had endorsed on the above panchnama that the same was correct. That the accused had also in token of it, signed the said panchnama. It is alleged that the seal which was found from the table of the appellant, did not match with the original seal of T.I. Surat. The articles which were seized from the office of the appellant were sealed in one cover. Mr PN Nair, T.I., Surat had signed all the articles seized along with his report and sent the same to the Divisional Safety Officer, Bombay Central. 5. On the basis of the source of information, a case was registered against the accused on 19.5.1989 at R.C. No. 18/1989 in the office of the Superintendent of Police, CBI, Ahmedabad. The investigation of the said offence was entrusted to PSI Mr DNS Yadav, after obtaining necessary permission from the learned Chief Judicial Magistrate, Ahmedabad for investigation of this case. On 23.11.1989 PSI Mr Yadav collected the documents from ST Godani under seizure memo Ex. 63. The investigation of the said offence was entrusted to PSI Mr DNS Yadav, after obtaining necessary permission from the learned Chief Judicial Magistrate, Ahmedabad for investigation of this case. On 23.11.1989 PSI Mr Yadav collected the documents from ST Godani under seizure memo Ex. 63. On 7.2.90 PSI Mr Yadav collected the documents from HP Trivedi, Railway Section Officer under acknowledgment Ex. 83. On the same day, he obtained the specimen signature of the appellant in the presence of panch witness. On 2.4.1990, PSI Mr Yadav collected the documents from Rakesh Sharma under production memo Ex. 82. On 12.4.1990, PSI Mr Yadav collected five documents from HB Trivedi, Railway Section Officer under acknowledgment ex. 81. On 25.4.90 documents were seized by PSI Mr Yadav from DJ Desouza vide seizure memo ex. 80. On 26.4.90, PSI Mr Yadav seized the documents from RS Varma under seizure memo Ex. 79. During the course of investigation, PSI recorded the statements of witnesses. He sent questions as well as admitted specimen writings and signatures of the appellant to the Government Examiner of Questioned documents for his opinion. After receiving the opinion of the Government Examiner, PSI Mr Yadav sent his report through the Superintendent of Police, CBI, Ahmedabad to the competent authority for obtaining sanction to prosecute the case. The competent authority namely Sr. Divisional Operating Manager, Western Railway, Bombay Central accorded the sanction on 26.11.1990 to prosecute the appellant in the competent Court. After completion of investigation the charge-sheet was filed before the Special Court on 27.12.1990. 6. Thereafter, the charge was framed at Ex. 16 against the appellant. The appellant pleaded not guilty and claimed to be tried. 7. In order to bring the home, the charge levelled against the appellant, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court. 8. Thereafter, after recording the evidence of prosecution witnesses, further statement of the appellant under sec.313 of CrPC was recorded in which the appellant has denied the case of the prosecution. 9. That after considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, Court no. 4, Ahmedabad City vide impugned judgment and order dated 30.6.1993 held the appellant guilty to the charge levelled against him under sec. 420,467, 468 and 471 of IPC and under sec. 9. That after considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, Court no. 4, Ahmedabad City vide impugned judgment and order dated 30.6.1993 held the appellant guilty to the charge levelled against him under sec. 420,467, 468 and 471 of IPC and under sec. 5(2) of the Prevention of Corruption Act and convicted and sentenced the appellant as stated above. 10. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Court no. 4, Ahmedabad, the present appellant has preferred this appeal. 11. Heard Mr. KB Anandjiwala learned counsel for the appellant and Mr. YN Ravani learned advocate for the respondent-CBI. 12. Mr Anandjiwala learned advocate for the appellant has submitted that the appellant was not on pick up duty from 13.12.1987 to 3.2.1988 because he had completed the pick up duty on 9.12.1987 and, therefore, Asstt. Station Master, had left the Waghai Railway Station and the appellant had written a letter to the Area Superintendent, Valsad about the completion of pick up period and, therefore, according to the appellant, he was entitled to claim the overtime as he was not on pick up duty, but the Inspection Team has not considered his claim and after 9 and ? months, a complaint was registered against the appellant and he was charge-sheeted before the Court. It is also argued by Mr Anandjiwala that complainant has not explained such delay which is fatal to the prosecution case. Mr Anandjiwala has read the oral evidence of PW-1 to 4 and argued that defence has established that there was many force against the appellant and particular allegation was also made against PW-1 that he prepared bogus rubber stamp and wrongly booked the appellant in this case and the appellant has not committed any offence in the eye of law. Mr Anandjiwala argued that so far as criminal conspiracy is concerned, previous agreement is required, but the prosecution has failed to prove the same. No doubt, the learned Judge has not considered this issue that the appellant has committed an offence of criminal conspiracy. Mr Anadjiwala has argued that so far as the handwriting of the appellant is concerned, the opinion of handwriting expert is obtained, but the prosecution has not examined the Handwriting Expert. No doubt, the learned Judge has not considered this issue that the appellant has committed an offence of criminal conspiracy. Mr Anadjiwala has argued that so far as the handwriting of the appellant is concerned, the opinion of handwriting expert is obtained, but the prosecution has not examined the Handwriting Expert. He has also argued that the rubber stamp and papers which were seized by the Inspection Team were kept in the possession of Inspection Officer. Mr. Anandjiwala also read the evidence of Inspection Team and argued that the said rubber stamp and papers were seized from the unlocked drawer of the table and also from the cupboard. The place of offence is Railway Station at Waghai. Mr Anadjiwala vehemently argued that the Railway Station of Waghai is not a deserted area, but it is a public place and any one can easily move at the said place and enter the said premises without any hesitation. Mr Anadjiwala further submitted that the report of Handwriting Expert is not proved beyond reasonable doubt by the prosecution. He has also drawn the attention of this court to the provisions of Evidence Act and vehemently submitted that non-examination of Expert is covered within the meaning of the provisions of sec. 293 of CrPC. He has also read the said provision and argued that regarding the papers which were seized by the Inspection Officer, no panchnama was drawn and no independent witnesses were called by the Inspection Officer. He has also argued that from the unlocked drawer of the table and cupboard when particular papers were seized, and even if it can be assumed for a moment that the oral evidence of members of Inspection Team cannot be discarded because they are public servant, but when a serious offence is alleged against the appellant-accused, then the same is required to be proved by leading independent evidence, which the prosecution has failed to prove beyond reasonable doubt. Mr Anandjiwala has argued that the handwriting taken by the Inspection Officer, has not been proved by the prosecution by comparing the same with the disputed document which was sent to the FSL at Delhi for obtaining the opinion of the Hand Writing Expert. Mr Anandjiwala also argued that so far as the document exh. Mr Anandjiwala has argued that the handwriting taken by the Inspection Officer, has not been proved by the prosecution by comparing the same with the disputed document which was sent to the FSL at Delhi for obtaining the opinion of the Hand Writing Expert. Mr Anandjiwala also argued that so far as the document exh. 78 opinion of the Handwriting Expert is concerned, no doubt, it was exhibited during the examination of PW-3 who is complainant, a member of Inspection Team and he raised a question to the court that without application under sec. 59 and 60 of the Evidence Act, the document cannot be proved and exhibited. He has also argued that the contents of the said document are not proved before the learned Judge, and yet, that document was exhibited by the learned Judge. Mr Anandjiwala has also argued that so far as the oral evidence of PW-1 to 4 are concerned, their statements were recorded by the Investigating Agency after one year and the delay is also not explained by the I.O. in his oral evidence. Mr anandjiwala has further argued that just to prove the case of criminal misconduct, it is the duty of the prosecution to establish the conduct of the accused as to how and in which manner he has committed the said offence. He has also read the provisions of Prevention of Corruption Act and argued that from the evidence of all witnesses, the prosecution has failed to prove that the present appellant has committed the said offence. He has further argued that the manner of cheating is prescribed under sec. 415 of IPC and ingredients of said section are not proved through the oral evidence of the witnesses. He has also read the forged document and argued that when the prosecution is relying upon the forged document, then it is required to be proved beyond reasonable doubt and when the handwriting of the appellant is not proved, then the accused cannot be convicted. Mr Anandjiwala has further argued that from the oral evidence of PW-1, the defence has already made a specific suggestion to this witness that he has also prepared some overtime bills of Vazir and Khalifa. Mr. Anandjiwala after going through the oral as well as documentary evidence has vehemently submitted that the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Court no. Mr. Anandjiwala after going through the oral as well as documentary evidence has vehemently submitted that the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Court no. 4, Ahmedabad is required to be quashed and set aside. 17. On the other hand, Mr YN Ravani learned advocate appearing for the respondent-CBI has argued that this is a serious case and the impugned judgment is required to be confirmed. He has read the evidence of witnesses and argued that during the inspection work, it has come to the knowledge of the members of Inspection Team that the present appellant has committed the said offence and he has created the forged document just to get the overtime bills by illegal means. Mr. Ravani learned advocate has also argued that the rubber stamp and other documents were seized from the possession of the accused. He has fairly admitted that at the time of seizing the same, the present appellant was not present at the place of offence, but he was present on his job and was discharging his duties at the gate. Mr Ravani has also argued that after proper investigation is over, the Investigating Agency has obtained handwriting expert's opinion and it was produced on record and the same was exhibited by the learned Special Judge, and from the oral evidence of PW-3, all the documents were exhibited by the learned Special Judge. Mr Ravani has argued that the conduct of the appellant-accused is also covered within the meaning of sec. 8 of the Act and presumption can be drawn against the present appellant. Mr Ravani has also read the report of the handwriting expert and submitted that it is an exhibited document and non-examination of hand writing expert is not fatal to the prosecution case. Mr Ravani has also read the report of Inspection Team and argued that in the said report the Inspection Team has already reported to the higher authority that the present appellant has committed such an offence, but after 10 and ? months a decision was taken by the higher authority and, therefore, a complaint was filed later on. Mr Ravani has fairly admitted that the delay caused in filing the complaint is not explained by the witnesses. months a decision was taken by the higher authority and, therefore, a complaint was filed later on. Mr Ravani has fairly admitted that the delay caused in filing the complaint is not explained by the witnesses. Mr Ravani has also read the oral evidence and cross-examination of the witnesses and argued that the the defence has never made any attempt to establish that the alleged document was not prepared by the present appellant. He has also read the observation made by the learned Special Judge and argued that whole evidence was produced before the learned Special Judge and it is established before the trial Court that the charge is proved beyond reasonable doubt by the prosecution and today also Mr Ravani has argued that before the learned Judge the prosecution has proved its case beyond reasonable doubt. So, the judgment and order of conviction and sentence passed by the learned Special Judge, Court no. 4, Ahmedabad in Special Case No. 42/1990 is required to be confirmed. 18. I have heard both the learned counsel for the parties and also perused the oral as well as documentary evidence produced on record. It is true that from the evidence of PW-1, it is established on record beyond reasonable doubt that during the seizing of the papers and stamp, the accused was not present at the place of seizing. It is also on record that table and cupboard were unlocked and open. It is true that Railway Station is a public place and anyone can move just near the office of the Station Master. I have also perused the oral evidence of other witnesses and it is an admitted fact that PW-3 has, in past, prepared so many claims regarding overtime for Khalifa and Vazir. I have also perused documentary evidence which is produced on record. It is true that the prosecution has never bothered to examined the handwriting expert to prove the report regarding the disputed document. It is also true that specimen signatures were obtained by I.O. And it was sent to the handwriting expert. I have found some substance in the submissions of Mr. Anandjiwala that the prosecution has never bothered to provide copy or photocopy of the disputed document and specimen signatures. It is also true that specimen signatures were obtained by I.O. And it was sent to the handwriting expert. I have found some substance in the submissions of Mr. Anandjiwala that the prosecution has never bothered to provide copy or photocopy of the disputed document and specimen signatures. It is true that as per the directions of the Supreme Court, copy of the disputed document and specimen signatures are required to be provided to the accused. I do not want to observe at this stage that non-providing of copy is fatal to the prosecution case but it is the duty of the prosecution to provide certain documents, so the accused can defend himself. I have perused sec. 59 and 60 of the Evidence Act. The disputed document, the report of hand writing expert, is required to be proved as per the provisions of sec. 60 of the Evidence Act. Sec. 60 of the Evidence Act, reads as under: 60. Oral evidence must, in all case whatever, be direct; that is to say- If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner, If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: 19. From the perusal of the judgment and reasons given by the learned Special Judge, no doubt, the trial was conducted by the prosecution and during the examination of the witnesses, even the learned Special Judge has also not considered the provisions of sec. 73 of the Evidence Act. Even the prosecution has also never bothered to make a request to the learned Special Judge under the provisions of sec. 293 of CrPC just to compare the signatures of the appellant. From the oral evidence of PW-1 Parmeshwaran Nanu Nair Ex. 27, PW-2 Rakesh Ameprasad Sharma Ex. 66, PW-3 Amratlal Jivanji Patel Ex. 69 and PW-4 Vinubhai Chhaganbhai Patel Ex. 293 of CrPC just to compare the signatures of the appellant. From the oral evidence of PW-1 Parmeshwaran Nanu Nair Ex. 27, PW-2 Rakesh Ameprasad Sharma Ex. 66, PW-3 Amratlal Jivanji Patel Ex. 69 and PW-4 Vinubhai Chhaganbhai Patel Ex. 87, it transpires that from the oral evidence of these witnesses, the prosecution has proved its case beyond reasonable doubt just to show that the present appellant has forged the document and affixed the forged rubber stamp and used it as genuine and legal document. From the provisions of sec. 73 of the Evidence Act, it appears that when the question of disputed and admitted signatures and hand writing is before the court, then for comparison regarding the said documents and signatures, the court is not the competent authority and expert's opinion should be obtained as rule of prudence and court should give cogent and convincing reasons for its conclusion and as per the provisions of sec. 60 of the Evidence, when hand writing expert is not examined, then report Ex. 78 cannot be proved and the learned Judge has not considered the said aspect as per the provisions of law. When a doubt is created and suspicion is raised before the court, and when there is some circumstances to say that sufficient doubt is created by the defence and even from the oral as well as documentary evidence of prosecution, the doubt is created, then sword of the conviction cannot be used straight-way, but benefit of doubt is required to be given to the accused. I have considered the reasons and observations of the learned Special Judge. Even the learned Special Judge has not explained that as to how that document is exhibited during the time of recording of the oral evidence of PW-3 who is not a maker of that document. Even the handwriting expert's opinion is also exhibited during the oral evidence of PW-3 and the handwriting expert is not covered within the meaning of sec. 293 of CrPC. Sec. 293 of CrPC reads as under: 293.(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. (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. 20. In that view of the matter, I am of the opinion that the learned Judge has not considered the defence of the appellant. Even the learned Judge has never considered that whether the delay of 10 and ? months caused in filing the complaint is fatal to the prosecution case or not. Even no explanation was called from the appellant regarding the inspection report is concerned. Today, Mr Ravani learned advocate for CBI is unable to convince this Court that as to how the prosecution has proved its case beyond reasonable doubt. In that view of the matter, I am of the opinion that benefit of doubt is required to be granted in favour of the appellant. In view of above discussion, this appeal is required to be allowed. 21. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 30.6.1993 passed by the learned Special Judge, City Civil & Sessions Court, Court No. 4, Ahmedabad in Special Case No. 42/1990 is hereby quashed and set aside. Bail bond shall stands cancelled. R & P to be sent back to the trial Court, forthwith.