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2011 DIGILAW 222 (ORI)

Siba Prasad Satpathy v. Republic of India

2011-04-07

PRADIP MOHANTY

body2011
JUDGMENT PRADIP MOHANTY, J. — This revision is directed against the judgment dated 15.09.1998 passed by the learned 2nd Additional Sessions Judge, Bhubaneswar in Criminal Appeal No.2/10 of 1997/96 affirming the judgment and order dated 31.01.1996 passed by the Additional Chief Judicial Magistrate, Bhubaneswar in S.P.E. No.26 of 1988 convicting the petitioner under Sections 420 and 468 read with Section 471 I.P.C. and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/- in default to undergo R.I. for six months for the offence under Section 420 I.P.C. and to undergo rigorous imprisonment for four years and to pay a fine of Rs.3,000/- in default to undergo R.I. for six months from the offence under Section 468 read with Section 471 I.P.C., the substantive sentences to run concurrently. 2.Sans unnecessary details, the case of the prosecution is that the petitioner and one Krushna Chandra Pattnaik were working as Field Officer and Branch Manager respectively of the State Bank of India, Nuapada Branch during the period from January, 1987 to April, 1987. The petitioner recommended for a loan of Rs.8,000/- in favour of a fictitious loanee, namely, Lochan Rout on 29.01.1987 and K.C. Pattnaik, the Branch Manager, sanctioned the said loan amount. Not only the loanee, but also the guarantor, namely, Ghanashyam Rout was a fictitious person. The petitioner had filled up the loan application in his own hand and also put the signature of the loanee and the guarantor in his own hand. During the absence of the Branch Manager, Loan Account No.287 was opened and the money was disbursed in favour of the said fictitious loanee. Thereafter, no repayment was made towards the loan. Ultimately, the matter was investigated by the C.B.I., Bhubaneswar, and charge sheet was filed against the petitioner for commission of offences under Sections 420 and 468 read with Section 471 I.P.C. 3.The plea of the accused is complete denial of the allegation. His specific plea is that one Rajesh Pattnaik had introduced the loanee Lochan Rout and recommended for sanction of loan in his favour. The said Lochan Rout obtained the “No Dues” certificate where after the Branch Manager sanctioned the loan amount. The petitioner only passed the cheque and the Cash Officer disbursed the amount in favour of Lochan Rout. His specific plea is that one Rajesh Pattnaik had introduced the loanee Lochan Rout and recommended for sanction of loan in his favour. The said Lochan Rout obtained the “No Dues” certificate where after the Branch Manager sanctioned the loan amount. The petitioner only passed the cheque and the Cash Officer disbursed the amount in favour of Lochan Rout. 4.In order to prove its case, prosecution has examined as many as twelve witnesses including the I.O. and exhibited 54 documents. Defence examined none on its behalf and exhibited only one document, i.e., Ext.A. 5.Learned Additional Chief Judicial Magistrate, Bhubaneswar framed charge against the petitioner under Sections 420 and 468 read with Section 471 I.P.C. After conclusion of the trial, the learned Additional Chief Judicial Magistrate convicted and sentenced the petitioner as already stated hereinbefore. Against that judgment and order, the petitioner preferred appeal before the Sessions Judge which was registered as CRLA No.2/10 of 1997-96. Learned Second Additional Sessions Judge, Bhubaneswar, who heard the appeal, by his judgment dated 15.09.1998 dismissed the appeal by confirming the conviction of the petitioner. He, however, modified the sentence to R.I. for three years in respect of the offence under Sections 468 and 471 I.P.C. 6.To appreciate the rival submissions raised at the Bar, this Court carefully went through the judgment of the Courts below, L.C.Rs. and the decisions cited by the parties. P.W.1 is the constable of C.B.I. He stated that he was entrusted with the notice (Ext.1) for service on Lochan Rout, the loanee. He visited village Lukupali and on enquiry learnt that no such person was there and reported accordingly. He was also entrusted with another notice (Ext.2) to serve on Churubihari Rout of village-Lukupali and he reported that no such person was living in that village. He admitted that the Gramarakhi and the Ward member of the village in question were absent when he had been there to serve the notices and so he could not meet them. But he got information that such person were not the residents of the said village. He did not disclose the name of the persons from whom he got the information. P.W.2 is the Gramarakhi of Lukupali who stated in his evidence that he along with Saheb Harijan and Chaitan Aghria informed the C.B.I. Inspector that there were no persons named Ghanashyam Rout and Lochan Rout in village Lukupali-Khoksha. He did not disclose the name of the persons from whom he got the information. P.W.2 is the Gramarakhi of Lukupali who stated in his evidence that he along with Saheb Harijan and Chaitan Aghria informed the C.B.I. Inspector that there were no persons named Ghanashyam Rout and Lochan Rout in village Lukupali-Khoksha. But in cross-examination, he admitted that he and Chaitan Aghria are residents of Khoksha Lukupali. Tanawat and Dhamantari are two other Revenue villages near Lukupali. He further admitted that he could not read the memorandum of enquiry. P.W.3 is the Field Officer of State Bank of India, Nuapada Branch. He stated in his examination-in-chief that he accompanied the C.B.I. Officer at the time of enquiry. The enquiry revealed that there were no persons named Lochan and Ghana in village-Khoksha. Enquiry report was prepared by the Inspector and he put his signature thereon. P.W.4 is the Extra Departmental Branch Postmaster of Tanwat Post Office. He stated in his evidence that he received the registered letter from Nuapada Sub-post office for delivery to the addressee, Lochan Rout. But he could not find the addressee in that village. He returned the registered letter to Nuapada Sub-Post office, since the addressee was not available. P.W.5 is a Senior Clerk of Tahasil Office, Nuapada. He verified the records available in the Tahasil office and also verified the R.O.R. of village-Tanwat and Khoksha, the Revenue village under which the hamlet Lukupali comes and found that those two persons did not possess any property and no record of right was published in their favour. He admitted in cross-examination that the record of rights which he had proved was published in the year 1965 and after 1965 there was no settlement operation in that area. He also admitted that he did not verify the mutation case record and lease case record. P.W.6 was the Cash Officer of State Bank of India, Nuapada Main Branch at the relevant time. In his deposition he stated that he was acquainted with the handwritings and signatures of the accused-petitioner and K.C. Patnaik, the Branch Manager. He proved Exts. 12 to 28. The accused-petitioner filled up the loan application and sanction order was signed by the Branch Manager, K.C. Patnaik and accused-petitioner put his signature in token of attestation of signature of loanee-Lochan Rout. He proved Exts. 12 to 28. The accused-petitioner filled up the loan application and sanction order was signed by the Branch Manager, K.C. Patnaik and accused-petitioner put his signature in token of attestation of signature of loanee-Lochan Rout. The form of agreement of hypothecation was filled up in the handwriting of the petitioner and in top portion of the agreement K.C. Patnaik, Branch Manager put his signature. On 7.2.1987 he was present in the Bank. On that date K.C. Patnaik, Branch Manager remained on leave and S.P. Satpathy worked as acting Branch Manager and as Field Officer also. He also put the cash scroll maintained by the Branch Manager. He directed him to disburse Rs.2,16,000/- in respect of 35 vouchers. He further stated that when he did not agree to disburse the amount in respect of those 35 vouchers, accused-petitioner directed him to hand over Rs.2,16,000/- for disbursement of the said amount and he handed over the said amount to accused-petitioner. He also stated that accordingly he made relevant entry in the cash delivery book and the accused-petitioner also acknowledged the receipt of that amount. He admitted that documents and writings which had been proved were not executed nor written or signed in his presence. He also stated that the loan application forms are kept in the custody of the Record Keeper but he did not remember the name of the Record Keeper. But as a matter of practice the loan application and connected documents were used to be prepared and filled in by the Field Officer of the Bank. After field visit the Field Officer used to produce the documents to the Branch Manager and thereafter the loan was sanctioned. A sum of Rs.6,000/- was recommended in case of loan account nos. 218 and 219 by the Field Officer. Rs.8,000/- was also sanctioned in both the cases. The “No Dues Certificates” were obtained before recommendation for the loan. He also admitted that Ext. 24 (Cash Credit cheque) was not brought before him during his incumbency. He admitted that the Field Officer, Officer Junior Management, Accountant and Cash Officer are Officers of the Bank, who can remain in charge of Branch Manager in his absence. He also admitted that he saw the documents Exts. 12 to 28, which were proved in the Court, for the first time. He admitted that the Field Officer, Officer Junior Management, Accountant and Cash Officer are Officers of the Bank, who can remain in charge of Branch Manager in his absence. He also admitted that he saw the documents Exts. 12 to 28, which were proved in the Court, for the first time. He also stated that Keshab Sahoo and Rajesh Pattnaik were not Bank staff, who attested the signature of Lochan Rout on Ext. 24. At the time of payment of 35 vouchers, cashier was not present but he was present. He also admitted that the cash register is maintained by the Cash Officer. 7.P.W.7 was serving as Senior Clerk in the office of the Sub-Collector, Nuapada. He stated that requisition was received from the S.P., C.B.I., Bhubaneswar to verify regarding inclusion of the name of certain persons in the voter list when he was the Dealing Assistant in the Election Section of Sub Collector’s Office. He verified the voters list to find out the name of the persons referred to in the requisition. Thereafter, he prepared a report and placed it before the Sub-Divisional Officer for his signature. This report was submitted by the Sub-Divisional Officer to the Inspector of Police, C.B.I. He stated that there was no village in the name of Lukupali in Tanwat Gram Panchayat as per the voter list. He also stated that he could not say if beyond voter list other eligible voters were not enlisted in the voter list and were also living in the village. 8.P.W.8 was the Handwriting Expert and as such a material witness. He was working as the Government Examiner of questioned documents in the Laboratory of Government of India at Calcutta. He received documents of this case on three occasions. Ext. 35 is a forwarding letter accompanying the list of questioned writings, specimen writings and questionnaire for opinion. Ext. 36 is the forwarding letter with list of questioned documents. He received the questioned documents, specimen writings and admitted writings marked Exts. 34, 35 and 36 and prepared the opinion under Ext. 37. He stated in his examination-in-chief that he prepared the reasonings vide Ext. 38, but he has not put his signature and date therein. The Government Examiner of questioned documents Shri Santosh Singh had not put his signature on the reasonings marked Ext. 38. The date of examination and opinion are also not mentioned in Exts. 37. He stated in his examination-in-chief that he prepared the reasonings vide Ext. 38, but he has not put his signature and date therein. The Government Examiner of questioned documents Shri Santosh Singh had not put his signature on the reasonings marked Ext. 38. The date of examination and opinion are also not mentioned in Exts. 37 and 38. 9.P.W.9 was attached to the Disciplinary Proceeding Cell, Local Head Office, S.B.I., Bhubaneswar, who produced the circular in respect of the procedure to be adopted for disbursement of loan amount, etc. 10.P.W.10 was the Inspector of Police (C.B.I.) Bhubaneswar. He had registered the case as per the order of the S.P., C.B.I., Bhubaneswar had drawn up the F.I.R. under Ext.48. During the course of investigation he had collected the specimen handwritings and admitted writings of the accused and sent to Government Examiner of Questioned Documents. During the course of investigation he had sent notices under Section 160 Cr.P.C. through registered post to Shri Churu Bihari Rout, father of loanee Lochan Rout vide Ext.6, so also to the loanee Lochan Rout vide Ext.6/2. He also sent a notice through Constable Ganeswar Sarangi of the office of C.B.I., Bhubaneswar as per Exts. 1 and 2. The said notices were returned by the constable with endorsement in presence of witnesses to the effect that such persons were not found. In order to establish the identity of the purported loanee, Lochan Rout, his father Churu Behari Rout, and the Guarantor Ghanashyam Rout, he had made a spot verification in presence of the village gentry and responsible officers of the bank as per Ext. 3 and Ext.3/4. During investigation he had observed that the accused has cheated the bank to the tune of Rs.8,000/- by falsely recommending for sanction and disbursement of the loan amount. He stated in his cross-examination that he did not enquire through the police about existence of loanee Lochan Rout and he did not verify about the whereabouts of loanee Lochan Rout at Nuapada. He admitted that he had not seized any documents from the recovery section of the bank. He also admitted in his cross-examination that P.W.4 did not state before him regarding the date of visit for delivery of the registered letter to the addressee. He also admitted that he had not verified as to whether Kishore Kumar Sahu and Rajesh Pattnaik had account in the said bank. He also admitted in his cross-examination that P.W.4 did not state before him regarding the date of visit for delivery of the registered letter to the addressee. He also admitted that he had not verified as to whether Kishore Kumar Sahu and Rajesh Pattnaik had account in the said bank. 11.P.W.11 was the teacher in Fera Primary School Nuapada. He proved Ext. 24/2 and 24/3, his endorsement and signature. ‘Lochan Rout’, at the back side of the cheque under Ext. 24 was written before he signed and made endorsement as aforesaid. He knew Lochan Rut for which he stood as a guarantor. In cross-examination, he admitted that he put the aforesaid signature under Ext. 24/2 and 24/3 before the Cash Officer. Though Kishore Sahu was present, P.W.6-Sashadev Thakur told him to simply write his name. He wrote his name as per Ext.24/3. He also admitted that the accused told him to sign at back side of the cheque in the name of Kishore Sahu. 12.P.W.12 deposed that he knew P.W.11 . His signature does not appear at the back side of Ext.24. He and P.W.11 had gone to the State Bank of India Branch Office in his scooter and he did not know Lochan Rout. 13.In the case in hand, the prosecution mainly relied upon the evidence of P.W.6, the Cash Officer of the Bank who had deposed that the accused put his signature and took the loan amount in his presence. On close scrutiny of record, it clearly reveals that the entire case of the prosecution rests upon Ext. 24 and the evidence of P.Ws. 6 and 11. P.W.6 is the Cash Officer of the Bank who has deposed that the accused put his signature and took the loan amount in his presence. P.W.6 is the accomplice who obtained signature from P.W.11 on the loan documents. P.W.11 also deposed that he had put his signature on the back side of the cheque under Ext. 24 as asked by P.W.6, Sasadev Thakur and the accused. He put his signature under Ext. 24/2 and 24/3 before the Cash Officer. Though Kishore Sahu was present, P.W.6 told him to simply write his name, for which he wrote his name as per Ext.24/3. From the evidence it is evident that Cash Officer, P.W.6 had obtained signature of the guarantor on Ext. 24. He put his signature under Ext. 24/2 and 24/3 before the Cash Officer. Though Kishore Sahu was present, P.W.6 told him to simply write his name, for which he wrote his name as per Ext.24/3. From the evidence it is evident that Cash Officer, P.W.6 had obtained signature of the guarantor on Ext. 24. There is no other evidence to show that the accused put the signature and the endorsement and as such he cannot be guilty of the said offence. It is alleged that the petitioner put the signature of Lochan Rout and grabbed the loan amount. It is also alleged that Lochan Rout was not in existence. The Courts below have clearly found that the accused put his signature on Ext. 24. The said Ext. 24 was seized and sent to the handwriting expert and the handwriting expert opined that the signature in the back side of Ext. 24 is the signature of the accused, which means the entire conviction is based on the uncorroborated testimony of the Handwriting Expert. P.W.11 in cross-examination stated that he endorsed at the back side of the cheque (Ext. 24) at the instance of P.W.6. But, P.W.6 did not support the above fact in his evidence and admitted that Ext. 24 was not brought before him during his incumbency. Therefore, it is legitimate to infer that loanee is genuine. In the case in hand, the informant is the I.O. himself who lodged the F.I.R., investigated into the matter and filed charge sheet. Admittedly during course of investigation he collected specimen signature and admitted writings in presence of the witnesses. But the said witnesses have not been examined by the prosecution. Non-examination of the witnesses is fatal to the prosecution. It is the settled principle of law that in order to rely upon the evidence of an expert, the court must be fully satisfied that he is a truthful witness and also a reliable witness fully adept in the art of identification of handwriting in order to opine whether the alleged handwriting has been made by a particular person or not. It has been held in Kanchansingh Dholaksingh Thakur Vrs. State, 1980 SCC (Cri) 143 that it is wholly unsafe to base the conviction of the appellant merely on the testimony of such expert. It has been held in Kanchansingh Dholaksingh Thakur Vrs. State, 1980 SCC (Cri) 143 that it is wholly unsafe to base the conviction of the appellant merely on the testimony of such expert. Since the informant is the I.O. who collected the signatures and since no independent witness has been examined by the prosecution, serious doubt has been created with regard to collection of admitted signature and specimen signature from the accused-petitioner. In this background, evidence of Handwriting Expert merits no consideration. P.W.6 in his evidence also admitted that as a matter of practice the loan application and the documents had been prepared and filled up by the Field Officer of the bank. P.W.6, who proved Ext. 24, admitted that the agreement was signed by the Branch Manager. In the instant case the Branch Manager sanctioned the loan and there is no material that the accused-petitioners influenced the Branch Manager to sanction the loan. It is presumed that the Branch Manager had sanctioned the loan after verifying the documents. None of the witnesses have stated about the seizure of said documents which is yet another circumstance that raises serious doubt about the complicity of the petitioner. Apart from that there were other officers who were entrusted with the work of paying money to the loanees. The prosecution should have called at least one of the officers to testify. Non-examination of independent witness with regard to collection of admitted signature and documents seized is fatal to the prosecution. The prosecution has not been able to prove that the accused-petitioner cheated the bank by dishonestly inducing him to deliver the cash and there is no material also that the cash was handed over to the accused-petitioner or that the accused-petitioner received the same. In view of the above, this Court is satisfied that the prosecution has not proved its case against the petitioner beyond reasonable doubt. The order of conviction passed by the Courts below does not stand to reason. The Investigating Officer, P.W.10 has prepared the seizure list, but he has not proved the documents seized. None else has also proved the documents which are stated to have been seized on the basis of the seizure lists. Mere seizure would not be sufficient to prove the documents. In his evidence, he has deposed about the collection of specimen handwritings and admitted writing which were later sent to the expert. None else has also proved the documents which are stated to have been seized on the basis of the seizure lists. Mere seizure would not be sufficient to prove the documents. In his evidence, he has deposed about the collection of specimen handwritings and admitted writing which were later sent to the expert. But he is silent about the documents which were sent to the expert for examination. The report of P.W.1 to the effect that nobody in the name of Lochan Rout was a resident of village Lukupali is of no consequence since P.W.1 is not the resident of the said village. He has admitted that he had not met the Gram Rakhi or Ward Member. P.W.2 belonged to different village (Lakhapati) and loanees were of village Khoksha Lukupali. P.W.4 reached later as addressee was not in the village. The absence of a person in the village cannot lead to the conclusion that the said person is a fictitious one. Ext. 5-the R.O.R. is of the year 1965 and the transaction is of the year 1988 and no R.O.R. has been published in 1985. Therefore, the old R.O.R. has no relevance. 14.On perusal of the evidence on record it is found that the entire prosecution case rests upon the testimony of P.Ws. 6 and 11 and Ext. 24. P.W.6 was the Cash Officer of the Bank at the relevant time. He deposed that the accused put his signature and received the loan amount in his presence. P.W.11 who is the guarantor, in his evidence deposed that he put his signature on the backside of the cheque, Ext. 24 as asked by P.W.6-Sashadev Thakur and the accused. In his evidence he has further clarified that he put his signature under Exts. 24/2 and 24/3 before the Cash Officer. Though Kishore Chandra Sahu was present, P.W.6 told him to simply write his name, for which he wrote his name as per Ext. 24/3. From the above evidence, it is crystal clear that it is the Cash officer, P.W.6, who obtained the signature from the guarantor on the loan document. In such circumstances, it cannot be imagined for a moment that the accused who was an Officer of the same bank, put forged signature and received the loan amount. 24/3. From the above evidence, it is crystal clear that it is the Cash officer, P.W.6, who obtained the signature from the guarantor on the loan document. In such circumstances, it cannot be imagined for a moment that the accused who was an Officer of the same bank, put forged signature and received the loan amount. Since P.W.6 had obtained the signature of the guarantor on the loan document, it goes to prove that the loanee was not a fictitious person. P.W.6 being a responsible officer of the bank could not have obtained the signature of the guarantor on forged documents. Since the criminal case has been initiated, the witness has tried to put all blame on the accused lest he would be implicated. His attempt to conceal his part of the performance is tell tale. The man may lie but the circumstances do not. P.W.6 being the accomplice his accusation against the accused cannot be held to be sufficient to find the accused guilty. From the above it is absolutely clear the Cash Officer (P.W.6) has obtained the signature from the guarantor under Ext. 24 and there is no other evidence to show that the accused put his signature and endorsement. Therefore, he cannot be found guilty for the said offence. It is alleged that the petitioner put the signature of Lochan Rout and grabbed the loan amount. It is also alleged that Lochan Rout was not in existence. The Court below has clearly found that the accused put his signature. The said signature is under Ext. 24 that was seized and sent to the Handwriting Expert and the Handwriting Expert opined that the signature put on the back side of the cheque (Ext.24) as the writing of the accused. This contradicts the sworn testimony of P.W.7. The entire conviction is based on uncorroborated testimony of the Handwriting Expert about whose authenticity, this Court has already recorded its opinion. 15.An analysis of the entire evidence on record goes to show that the prosecution case has no leg to stand, as there is not even an iota of legal evidence on the basis of which the accused petitioner can be found guilty. 16.In the result therefore the impugned judgments and orders of the Courts below are set aside and the Criminal Revision is allowed. Revision allowed.