JUDGMENT Per Rajiv Sharma, Judge. These appeals are directed against the judgment dated 30.4.2011 rendered by the learned Sessions Judge (Special Judge), Shimla, in Sessions Trial No. 13-S/7 of 2003, whereby the appellants/accused, Maya Ram and Sunita Gupta were convicted under Sections 409, 477, 477-A, 201 and 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the “Act” for the sake of convenience), while accused R.K.Sood was acquitted of the charges framed against him. Accused, Maya Ram and Sunita Gupta were sentenced to undergo rigorous imprisonment for five years’ with a fine of Rs.20,000/- each under Sections 409, 477, 477-A of the Indian Penal Code and Section 13(2) of the Act and in default of payment of fine to further undergo simple imprisonment for six months on each count; and to undergo rigorous imprisonment for one year with fine of Rs.1,000/- each under Sections 120-B and 201 of the Indian Penal Code and in default of payment of fine to further undergo simple imprisonment for two months on each count. All the sentences were ordered to run concurrently. 2. In Criminal Appeal No.104/2011, arguments were concluded on 13.3.2014 and in Criminal Appeal No.105/2011 on 17.4.2014. Since common questions of law and facts are involved in both the appeals, the same are being disposed of by a common judgment. 3. The case of the prosecution in a nutshell is that the accused Sunita Gupta in Criminal Appeal No.105/2011 had been working as Postal Assistant in Head Post Office, Solan w.e.f. 1994 to June 2000. She was allotted the counter and was required to collect the telephone charges and accept the money orders. She had received telephone revenue collection (hereinafter referred to as the “TRC” for the sake of convenience) from 1.1.1999 to May 2000 from subscribers and had given computerized or manual receipts to them. She had been preparing two copies of TRC lists showing the total collection of the day. One copy was sent to TRA-II Section of the Telecom Department and the second copy was retained by her. She had also been preparing hand-to-hand book on the basis of daily total collection for depositing the funds with the cash section. Accused R.K. Sood was immediate supervisory Officer of accused Sunita Gupta. One copy was sent to TRA-II Section of the Telecom Department and the second copy was retained by her. She had also been preparing hand-to-hand book on the basis of daily total collection for depositing the funds with the cash section. Accused R.K. Sood was immediate supervisory Officer of accused Sunita Gupta. He had been authenticating the TRC lists and hand-to-hand books and after tallying the same with counterfoils had been directing her to deposit the funds with the head cashier of the treasury. 4. Accused Maya Ram in Criminal Appeal No.104/2011 was to perform duty of supervision of TRA-I and TRA-II, review of outstanding telephone bills/disconnection thereof and arrears reconciliation of P.O. schedule with sub ledger with data fed in computer, collection of data of various exchanges regarding the meter reading, feeding of data in the main server regarding TRCs, generation and issue of telephone bills and maintenance of record. The concerned dealing hands used to feed the TRCs in the computer under his supervision. The data fed in computer was automatically transferred to the main server, whereafter the record of the TRCs was kept in the storeroom. At the close of the month, compilation of TRCs was required to be made and amount received through cheque from Head Post Office was required to be examined with reference to the compilation by accused Maya Ram so as to ensure that both the accounts, i.e. account arrived at after compilation tallied with the amount of the cheque received from the Head Postmaster and discrepancy, if any, was to be brought to the notice the Chief Accounts Officer and also to the Postmaster. The subscriber’s telephone was to be disconnected when his unpaid bill exceeded by monthly rent by two times and was reconnected only with the outstanding payment along with penalty of Rs.105/- was deposited. The access to the data of the computers of TRA-I and TRA-II was known to only accused Maya Ram. Using the password, accused Maya Ram had access to entire data in the computers which no one else had including his seniors. He was required to keep the password secret. He could not disclose it to any of his juniors or seniors. 5. PW6 R.S. Kondal, and PW22 Sukh Ram Verma, the then Superintendent and Assistant Superintendent, Head Post Office Solan respectively noticed some misappropriation of funds of TRC by accused Sunita Gupta. He was required to keep the password secret. He could not disclose it to any of his juniors or seniors. 5. PW6 R.S. Kondal, and PW22 Sukh Ram Verma, the then Superintendent and Assistant Superintendent, Head Post Office Solan respectively noticed some misappropriation of funds of TRC by accused Sunita Gupta. The entire amount collected by her was not deposited with the head cashier of the treasury. PW6 R.S. Kondal on 9.9.2000 filed a complaint Ext.PW6/A against accused Sunita Gupta at Police Station, Solan. According to the averments contained in the complaint, she had misappropriated and converted to her own use an amount of Rs.3,67,719/-. Case under Sections 409, 477, 477-A, 201 and 120-B of the Indian Penal Code and under Section 13(2) of the Act was registered against accused Sunita Gupta vide FIR No.174/2000, Ext.PW91/A at Police Station, Solan. On 13.9.2000, PW6 R.S. Kondal, filed another complaint Ext.PW6/B against accused Sunita Gupta at Police Station Solan. She was stated to have misappropriated more funds of the TRC. 6. Matter was initially investigated by PW91 S.I. Narotam Parsad. Thereafter, the matter was entrusted by the Superintendent of Police, Solan to Superintendent of Police, CBI, Chandigarh for registration of the case against the accused persons. On receipt of reference of the Superintendent of Police, crime vide R.C. No.30/01 was registered against the accused persons by CBI Chandigarh on 10.8.2001. Initially, PW94 Raj Singh, Inspector, CBI, undertook the investigation. Thereafter, investigation was completed by PW92 Inspector Rajesh Patwal. He took specimen signatures and handwritings of the accused persons, which were sent to Government Examiner of Questioned Documents for comparison with the questioned documents. According to the Government Examiner, accused persons were authors of the questioned documents. After completion of the investigation, PW92 Inspector Rajesh Patwal placed relevant record before PW93 N. Parthasarthi, Member (Finance) and Ex-officio, Secretary to the Government of India, Telecom. PW93 N. Parthasarthi examined the record and found sufficient grounds for granting sanction of prosecution under Section 19(1)(C) of the Act against accused Maya Ram. The challan was put up in the Court after completing all the codal formalities. 7. The prosecution examined as many as ninety five witnesses to prove its case. The accused persons were examined under Section 313 Cr.P.C.. They produced five witnesses in their defence. The challan was put up in the Court after completing all the codal formalities. 7. The prosecution examined as many as ninety five witnesses to prove its case. The accused persons were examined under Section 313 Cr.P.C.. They produced five witnesses in their defence. Accused Sunita Gupta admitted that she was working as Postal Assistant w.e.f. 1.1.999 to May 2000 and was collecting telephone charges from the subscribers as per bills and receipts placed on record. She had used computer for the purpose and record was supplied to the accounts branch and the Telecom Department. She denied having misappropriated the amount of telephone charges deposited with her. She also admitted having deposited the amount of Rs.90,000/- with PW6 R.S. Kondal vide receipt Ext.PW6/C. However, according to her, the amount was forcibly seized from her. Accused R.K. Sood, admitted that he had been working as Assistant Postmaster, Head Office, Solan w.e.f. January 1999 to May 2000. According to him, he was ignorant of computer and its operation. Accused R.K. Sood admitted that he had examined the record generated by accused Sunita Gupta through computer and verified the collection as per hand-to-hand receipt book. Accused Maya Ram also admitted that he had been working as Accounts Officer, Telecom Solan w.e.f. 1.1.1999 to May 2000. He remained Incharge of TRA-I and TRA-II and was getting the accounts of the telephone charges reconciled. Correct entries were made in the books of Telecom Department. He denied that he destroyed TRCs w.e.f. January 2000 to May 2000. According to him, he did not get recovered the tape cartridge packed in parcel, Ext.PW87/A. The tape cartridge was blank. The learned trial court convicted and sentenced the accused Sunita Gupta and Maya Ram and acquitted the accused R.K. Sood vide judgment dated 30.4.2011, as stated hereinabove. 8. Mr. Satyen Vaidya and Mr. Dalip K. Sharma, learned Advocates, have vehemently argued that the prosecution has failed to prove its case against the accused Sunita Gupta and Maya Ram. According to him, their clients have been falsely implicated in the case. 9. Mr. Sandeep Sharma, learned Assistant Solicitor General of India, has supported the impugned judgment dated 30.4.2011. 10. I have heard learned counsel for the parties and have also gone through the pleadings and record carefully. 11. According to him, their clients have been falsely implicated in the case. 9. Mr. Sandeep Sharma, learned Assistant Solicitor General of India, has supported the impugned judgment dated 30.4.2011. 10. I have heard learned counsel for the parties and have also gone through the pleadings and record carefully. 11. PW6, R.S. Kondal, Assistant Post Master, testified that on 9.9.2000 he lodged complaint Ext.PW6/A before the SHO, Police Station Solan with regard to alleged misappropriation/short credit of different amounts of different telephone bills collected at Post Office, Solan by Sunita Gupta. He lodged another complaint Ext.PW6/B at Police Station Solan on 13.9.2000 with regard to mis-appropriation/short credit of amount of telephone bills at Head Post Office Solan against accused Sunita Gupta. According to him, she used to perform duties of receiving telephone bills and money orders amounts. He found that in some of the telephone bills collected at Solan, Head Post Office by Sunita Gupta, she had not accounted for the entire money collected by her in the Post Office account and some of the amount was deposited short from the amount which was received by her. After registration of the FIR, Sunita Gupta deposited a sum of Rs.90,000/- in the Head Post Office Solan, for which certificate of credit Ext.PW6/C was issued by the Post Master, Solan, in her favour. In cross-examination, he admitted that one M.L. Tuli, was also indicted by the department in the case. 12. PW15, A.K. Sardana, Accounts Officer, deposed that on 19.3.2002, he was working as Accounts Officer, Computer. The Accounts Officer was supposed to prepare bills of the telephone subscribers with regard to the amount payable by them. According to him, such bills are prepared by way of computer and are dispatched to the subscribers for payment of T.R. Computer. After payment of the bills by the subscribers, the payment is recorded in sub-ledger/computer data and thereafter the sub-ledger and computer data are sent to T.R. Accounts for scrutiny and to workout list of defaulters. The sub-ledger and the computer data is supplied to T.R. (Manual) between 15th and 20th of a month. In the sub-ledger, the details of the amount actually paid by the subscribers are mentioned. List of defaulters, who failed to pay the bills within stipulated period, is prepared by T.R. (Manual) and the process is begun for disconnection of their telephones. The sub-ledger and the computer data is supplied to T.R. (Manual) between 15th and 20th of a month. In the sub-ledger, the details of the amount actually paid by the subscribers are mentioned. List of defaulters, who failed to pay the bills within stipulated period, is prepared by T.R. (Manual) and the process is begun for disconnection of their telephones. The master data of each subscriber is maintained in their computers, wherein all the details regarding individual subscriber, payment of bills etc., are mentioned, which can be retrieved in the event of any dispute. The T.R.(Manual) was supposed to supervise the work of T.R.(Accounts) and T.R.(Manual) was supposed to supervise the work of disconnection. He handed over the record of master data of subscribers record card to the CBI, which were printed on 26.9.2002, 24.6.2002, 19.6.2002, 30.11.2002, 27.8.2002 and 24.4.2002 vide Ext.PW15/A. He also handed over computer bill table Ext.PW15/B to CBI. These documents were taken into possession by CBI through seizure memo Ext.PW15/C. Master data Ext.PW15/A was signed by him and by R. Venkateshan. In cross-examination, he deposed that subscriber record card Ext.PW15/A and computer bill table Ext.PW15/B were obtained from the computer in his presence. The data, which was retrieved from computer, was not fed in his presence in the computer. He did not see the tape cartridge at the time of retrieving Ext.PW15/A and Ext.PW15/B from the computer. Neither any short credit was pointed out to him at the time of taking charge nor any short credit was noticed in loss account book. He admitted that all the four entries relating to opening balance, receivable amount of bills raised, amount collected and closing balance receivable are entered in sub-ledger. 13. PW22, Sukh Ram Verma, testified that Sunita Gupta was posted on cash collection counter at Head Post Office, Solan. According to him, he found in the month of September 2000 that Sunita Gupta had committed some misappropriation of the amounts of telephone revenue, which were deposited with her from January 1999 to May 2000. She had not credited the entire amount received by her under telephone revenue deposits in the Government accounts. He had taken into possession TRC lists from 1.1.1999 to 29.5.2000 from the almirah of Sunita Gupta. She had not credited the entire amount received by her under telephone revenue deposits in the Government accounts. He had taken into possession TRC lists from 1.1.1999 to 29.5.2000 from the almirah of Sunita Gupta. He also took into possession hand to hand receipt book from 1.1.1999 to 9.2.2000, except for period between 30.6.1999 to 9.2.2000, for which period, the hand to hand receipt book was not available in the record of Sunita Gupta. He also took into possession Head Post Office Summary Book from 3.11.1998 to 2.9.2000, attendance register from 1.1.999 to 31.8.2000 and nominal role of Head Post Office Solan from 1.1.1998 to 31.8.2000. He also deposed that in respect of distribution of work at Head Post Office Solan, D.Os. Ext.PW2/K and PW22/L were issued by Salig Ram, the then Superintendent of Post Offices at Solan. He had handed over the documents mentioned in the seizure memo Ext.PW22/N to CBI during the course of the investigation of the case. He signed the seizure memo Ext.PW22/N. According to him, the depositor with regard to any telephone revenue comes to the TRC counter, where the amount of bill etc. is deposited by the subscriber with the Postal Assistant. On receipt of such amount, the counterfoil of the bill is retained by the Postal Assistant and the remaining portion of the bill along with receipt of the amount is given to the subscriber by the Postal Assistant. The receipt of the office is retained by the Postal Assistant. The Postal Assistant used to feed the receipt of the amount in the computer so that TRC list may be prepared and generated. On close of the day, the receipt regarding total deposits of telephone revenue is generated by the Postal Assistant in two copies. The counterfoil of the receipts along with TRC list is sent to the Telephone Department by the Post Assistant ordinarily on the following day. According to him, total amount received under different heads is also recorded in hand to hand receipt book daily under different heads by the Postal Assistant and the entry is verified by the Assistant Post Master on the closing of the day with the help of TRC list and the hand to hand book is signed by the Assistant Post Master. After signatures of Assistant Post Master, hand to hand book along with the money collected is taken by the Postal Assistant to the Treasury of the Post Office, where the cash is deposited by the Postal Assistant and the acknowledgment is taken on hand to hand book from the Treasury. The amount is deposited in the Treasury on the same day on which it is collected on the counter. The Treasurer used to prepare a head office summary daily where the cash received under all the heads was recorded on the basis of hand to hand summary and actual cash received. At the relevant time, the total amount received by the Post Office Treasury was transferred to Telephone Department on the close of the month along with the record of the progressive total/TRC list. According to him, during the period January 1999 to May 2002, R.K. Sood was Assistant Post Master, who used to verify the hand to hand book prepared by Sunita Gupta. During the course of inquiry, he found that hand to hand book being maintained by Sunita Gupta for the period 30.6.1999 to 9.2.2000 was not available in the records. TRC lists for certain dates were also not available in the record of Sunita Gupta for the period she was posted as Postal Assistant. On certain dates, the amount collected/received by Sunita Gupta under head TRC was not shown in her daily hand to hand book. (These amounts have been reproduced by the learned trial court in the judgment and need not be quoted in order to avoid repetition of the evidence.) Besides these amounts, which were being received by Sunita Gupta on TRC counter, in respect of which TRCs were being generated with the help of computer, she also received certain amounts on different dates by issuing receipts manually. He proved manual receipts prepared by Sunita Gupta on 10.9.1999 Ext. PW22/A85 to Ext.PW22/113, on 29.3.2000 Ext.PW22/A114 to PW22/128, on 30.3.2000 Ext.PW11/129 to Ext.PW22/206 and on 29.5.2000 Ext.PW22/207 to Ext.PW22/337. The amount collected through manual receipts should have been recorded in TRC lists, but on some dates, she did not mention the amount received in TRC lists. According to his inquiry, the defaults were also committed by R.K. Sood and some other officials. The amount collected through manual receipts should have been recorded in TRC lists, but on some dates, she did not mention the amount received in TRC lists. According to his inquiry, the defaults were also committed by R.K. Sood and some other officials. The total amount collected by Sunita Gupta through manual receipts Ext.PW22/85 to Ext.PW22/113 dated 10.9.1999 came to Rs.33,816, Ext.PW22/114 to Ext.PW22/128 dated 29.3.2000 Rs.14,942/-, Ext.PW11/129 to Ext.PW22/206 dated 30.3.2000 Rs.37,871 and Ext.PW22/207 to Ext.PW22/337 Rs.1,139,527/-. In cross-examination, he deposed that the receipts were taken into possession by him from the almirah of Sunita Gupta and the same were handed over to him by Dealing Assistant, whose name he did not remember. He admitted that on the basis of daily TRC lists, TRC schedules daily and monthly are prepared on the basis of TRC statements. He also admitted that one copy of TRC list is sent to account Branch daily and manual receipts is also compared by Accounts Branch with TRC lists. He also admitted that Accounts Branch and Treasury Branch are two separate branches. He further admitted that every TRC is having date stamp, which shows the date on which the TRC is prepared. It is round shaped, showing date and name of the Post Office. He admitted that in Head Post Office Solan, on some other counter, which was multi-purpose in nature, one Purnima also used to collect TRC. He admitted that some of the manual receipts out of Ext.PW22/85 to Ext.PW22/337 were issued by Purnima. He admitted that a Treasurer used to prepare the cash book as deposited by the Postal Assistant in the Treasury. He did not remember if during the course of inquiry, he compared the treasury cash book with TRC and head office summary or not. The Superintendent of Post Office used to inspect the record of the Post Office including that of Sunita Gupta half yearly. He also used to assist the Superintendent. He had not inspected the record of Sunita Gupta, because he was deputed on inspection of some other records of different branches of the Post Office. He admitted that he had deposed before the CBI that the Post Master after tallying the hand to hand receipt book, counterfoils of telephone bills and TRC lists used to sign the head office summary. He admitted that he had deposed before the CBI that the Post Master after tallying the hand to hand receipt book, counterfoils of telephone bills and TRC lists used to sign the head office summary. The TRC lists, which were available in accounts branch, should have been stamped with date stamp, but were not stamped in the case. 14. PW26, Naresh Kumar, deposed that the TRC lists, which were being received in his office from Post Office were being fed in the computer and thereafter the TRC lists were being kept in a store under the directions of accused Maya Ram. He had kept the TRC lists from January 1999 to May 2000 in the same store of the Telephone Exchange Office. The key of store room remained with Maya Ram. According to him, after two or three months of May 2000, on Saturday, he asked Maya Ram to get the store articles shifted to some other place as the store had become full of the documents. Maya Ram informed him on next Monday that he had already shifted the store articles to Head Office, situated at Saproon. Sunita Gupta used to meet Maya Ram in the office. According to him, at one occasion, he had seen Maya Ram giving Rs.10,000/- to Sunita Gupta in the Post Office. In cross-examination, he admitted that he deposed before the Police that the keys used to remain hanging on key hole in the office, however the keys were under the charge of accused Maya Ram. 15. PW27, Mukesh Kumar Chauhan, deposed that he was operating computer in the office of accused Maya Ram and it was his duty to feed the data of TRCs advice notes and master data in the computer. The print of master data was generated from the computer by him. He deposed that one of the keys of computer section used to remain with him and other with accused Maya Ram. The list of TRCs, after being received from the Post Office, were fed in computer by him and thereafter the TRCs were kept by him on the table, which were being picked up by PW26 Naresh Kumar, who used to keep the same in the store. The list of TRCs, after being received from the Post Office, were fed in computer by him and thereafter the TRCs were kept by him on the table, which were being picked up by PW26 Naresh Kumar, who used to keep the same in the store. TRC lists were being received in the office daily, whereas after a month, TRC schedule for the entire month was being received in the office from Post Office at the end of the month along with the cheque for the amount deposited in the Post Office during the month. In the year 1999-2000, he noticed some discrepancy in the TRC schedule and the amount being received through cheque relating to Post Office Solan. He brought it to the notice of Maya Ram, who assured him that he would look into the matter. The store where TRCs were being collected was being operated by Naresh Kumar, but it was under the overall supervision of Maya Ram. Secret code of master computer used to remain with Maya Ram. The data fed in the computer could be generated or retrieved or processed through the secret code only. The TRC record from the store was found to be removed sometime in the month of August 2000. In cross-examination, he deposed that he was feeding only telephone numbers in the computer from the counterfoils of the bills, which were being received by him from Post Office, Solan and the amount of the bills used to be fed in the computer automatically from the connected software where the amount of the bill was being fed separately at the time of preparation of the bills. He also admitted that the total amount deposits shown in the TRC lists being sent by Sunita Gupta was tallying with the amount of bills shown by the computer daily. However, there was discrepancy at the time of monthly total when the monthly TRC schedule was received from the Post Office. He did not remember the months when the discrepancy in the monthly TRC schedule and the amounts shown by computer were noticed by him. The discrepancy used to be in the range of Rs.1000/- or Rs.2000/- and some times it was cleared on the following day. He admitted that accused Maya Ram was having dual charge of TRA-1 and TRA-2. There was distance of 3 kms between the offices of TRA-1 and TRA-2. The discrepancy used to be in the range of Rs.1000/- or Rs.2000/- and some times it was cleared on the following day. He admitted that accused Maya Ram was having dual charge of TRA-1 and TRA-2. There was distance of 3 kms between the offices of TRA-1 and TRA-2. He admitted that the workload in the office of TRA-2 was more. He denied that accused Maya Ram used to sit in the office of TRA-1 only for an hour in a day. He volunteered that he used to sit in both the offices for equal times, in pre lunch session and post lunch session and sometimes he used to remain there throughout the day. 16. PW32 Kanshi Ram Kondal, deposed that he had been working as Head Cashier in Head Post Office, Solan w.e.f. 28.4.1999 to November 2000. He deposed that accused Sunita Gupta had been depositing the amount collected by her with him as per hand to hand receipts prepared by her. He received the amount from Sunita Gupta as per the receipts on record. She had been dealing with the cash counter of payment of telephone charges. She had been marking her presence in the attendance register. She was on duty on cash counter as per the nominal roll-cum-attendance registers on record. In cross-examination, he deposed that while taking cash from the counter clerk, he never tallied or compared the same with TRC list. He volunteered that he was not required to tally the cash with TRC list. He did not know if the head of the summary is signed by Post Master after comparing the same with hand to hand book, TRC list and TRC schedule. He never verified whether the amount deposited by Sunita Gupta under various heads was correct or not. He volunteered that it was not part of his duty. He only used to tally the cash as per details of cash. He never verified the details on the basis of documents, but he only used to tally the same with description of currency notes and amounts detailed in the cheques. He was not well conversant with the handwritings, signatures and initials of Sunita Gupta. 17. PW48, Mahesh Sharma, deposed that he was posted as System Manager at Parwanoo Sub Division in Postal Department. Accused Sunita Gupta was posted as Postal Assistant prior to his transfer at Solan. She was posted at Counter No.3. He was not well conversant with the handwritings, signatures and initials of Sunita Gupta. 17. PW48, Mahesh Sharma, deposed that he was posted as System Manager at Parwanoo Sub Division in Postal Department. Accused Sunita Gupta was posted as Postal Assistant prior to his transfer at Solan. She was posted at Counter No.3. She used to receive money from the subscribers and prepare TRC lists through computer at that counter. He identified TRCs prepared at Counter No. 3 Head Office Solan, Ext. PW22/29, Ext.PW22/30, Ext.PW22/35, Ext.PW22/37, Ext.PW22/39, Ext.PW22/47-B, Ext.PW22/49, Ext.PW22/55, Ext.PW48/1, Ext.PW22/57, Ext.PW22/59 Ext.PW22/60, Ext PW22/63, Ext. PW22/65-A, Ext. PW22/66-B, Ext. PW22/66, Ext. PW22/67, Ext. PW22/69-B, Ext. PW22/69-A, Ext. PW22/70, Ext. PW22/71-A, Ext. PW22/71-B, Ext. PW22/72, Ext. PW22/33, Ext. PW22/34, Ext. PW22/53-A, Ext. PW22/53-B, Ext. PW22/54, stamp Ext. 48/2, receipt Ext. 48/3, TRCs Ext. 48/4, Ext. PW22/77, Ext. PW22/78. He also identified telephone bill of telephone No. 21467 Ex. PW33/C, for an amount of Rs.32759. The bill was paid on 26.5.2000 vide payment slip Ex. PW33/H. The payment slip was issued for an amount of Rs.327/- only. Sunita Gupta made an entry of figure 32759 on the receipt of payment/ customer receipt under her hand. She did not make any correction in TRC dated 26.5.2000, mark B/48, wherein at Serial No. 89 there was an entry of Rs.327/-. The Government account was credited for Rs.327/- only and the remaining account was misappropriated by accused Sunita Gupta. The entry in head office summary dated 26.5.2000 was in the hand of Assistant Treasurer vide Mark-C/48 for an amount of Rs.31,2895/-. The TRC mark D/48 bearing one figure 312895 encircled with red pencil mark as Q-53 was in the hand of accused Sunita Gupta vide Ext. PW48/5. He identified telephone bill of telephone No. 21808 Ext. PW53/1 for an amount of Rs.5329/-. The bill was paid on 27.5.2000 vide receipt Ext. PW53/2. Accused Sunita Gupta wrote figure 9 along with figure 1532 in the receipt. She also wrote an amount Rs.15329/- whereas amount of Rs.1532/-was shown as credited to postal Department. He also identified TRC dated 27.5.2000 where in the user name was shown as Sunita Gupta. This TRC was generated from Head Post Office Solan. The TRC was Ext. PW48/6. In this TRC list at Serial No. 184, only an amount of Rs.1532/- was shown as credited to the postal department. He identified telephone bill No. 2148 Ext. He also identified TRC dated 27.5.2000 where in the user name was shown as Sunita Gupta. This TRC was generated from Head Post Office Solan. The TRC was Ext. PW48/6. In this TRC list at Serial No. 184, only an amount of Rs.1532/- was shown as credited to the postal department. He identified telephone bill No. 2148 Ext. PW41/B, telephone bill No. 2148 Ext. PW41/B for an amount of Rs.1740/- and its receipt Ext.PW-41/C. In the receipt, the computer print was for Rs.1174/-, but Rs.11740, encircled with red pencil marked Q61 was in the hand of Sunita Gupta encircled with red pencil marked Q62. The TRC was Ext. PW48/7, wherein at serial No. 225 only amount of Rs.1174/- was credited to the Department. He also identified telephone bill Ext. PW33/F for an amount of Rs.30491/- and receipt Ext. PW33/K, wherein bill amount of Rs.3049/- was generated from computer and an amount Rs.30491/- was written on the receipt by accused Sunita Gupta. The receipt was also bearing initials of accused Sunita Gupta whereas at serial No. 83 only an amount of Rs.3049/- was shown as credited to the Department. The difference of the amount of receipt and TRC list in aforesaid three instances was misappropriated by accused Sunita Gupta. The TRC list was bearing initials of accused R.K. Sood. His initial was encircled with red pencil Q18. He identified the same. The TRC list dated 15.1.99 was bearing writing “157745” encircled with red pencil marked as Q19 on TRC List Ext. PW22/7. This writing pertained to Sunita Gupta. The TRC List dated 16.1.1999 was Ext.PW22/9. The TRC list dated 18.1.1999 Ext. PW22/11 bearing writing “minus 319 196266” was in the hand of accused R.K. Sood. The TRC list dated 23.1.99, bearing figure “4305 2269 -132-401” encircled with red pencil marked Q20 was in the hand of accused Sunita Gupta. The TRC list dated 10.3.1999. Ext. PW22/17 was bearing initial of accused R.K. Sood encircled with red pencil marked Q21. In the TRC List dated 15.3.99 Ext. PW22/19 bearing writing as “183862 183857” encircled with red pencil Q22 was in the hand of accused Sunita Gupta. TRC list dated 10.5.1999 Ext. PW22/25 bearing figure “82969” encircled with red pencil marked as Q23 was in the hand of accused Sunita Gupta. TRC list dated 12.5.1999 Ext. PW22/27 was bearing initial of R.K. Sood accused encircled with red pencil marked as Q24. TRC list dated 10.5.1999 Ext. PW22/25 bearing figure “82969” encircled with red pencil marked as Q23 was in the hand of accused Sunita Gupta. TRC list dated 12.5.1999 Ext. PW22/27 was bearing initial of R.K. Sood accused encircled with red pencil marked as Q24. The TRC list dated 17.5.99 Ext. PW22/29 bearing figure as “29726, 22995 and 25730” encircled with red pencil marked as Q25 was in the hand of accused Sunita Gupta. The TRC List dated 9.6.1999 marked A/48 was generated from the head post office and he identified the same vide Ext. PW48/B. The TRC List dated 14.6.99 Ext. PW22/35 bearing figure as “-156. 51160. -15289 and 35871” encircled with red pencil marked as Q26 was in the hand of accused Sunita Gupta. The TRC list dated 14.9.99 Ext.PW22/51 bearing figure as “11969” encircled with red pencil marked as Q32 was in the hand of accused Sunita Gupta. The TRC List dated 15.12.1999 Ext. PW22/75B was bearing initial of R.K. Sood accused. He identified certificate dated 18.9.2000. Both the certificates Ext. PW48/9 and Ext.PW48/10 were in his hand and were bearing his signatures. Both these certificates were further attested by M.L. Tuli, the then Post Master. Contents of the certificates were correct. In cross-examination, he admitted that he was departmentally indicted in the matter. Charge against him was that he had not taken the back-up of the data fed in the computer at Parwanoo before it was deleted. Register of head of summary Ext. PW22/D was maintained by Assistant Treasurer. Ext. PW22/48 was in the hand of Naresh Sood and Ext. PW22/50 was in the hand of K.R. Kaundal. PW22/50, Ext.PW22/54, Ext.PW22/56, PW22/58, Ext. PW22/60, PW22/62, PW22/64, PW22/66, PW22/68, PW22/70, PW22/72, PW22/74 and PW22/76 were in the hand of Naresh Sood. Ext. PW22/78 was in the hand of Neelam Bhardwaj. Mr. Grover the then post master had verified the head of summary. He could not say what method was adopted by post master in verifying head of summary. He admitted that in head post office Solan, Treasury Branch was separate. He could not say that TRC lists were kept permanently in the accounts branch. He admitted that the TRC lists prepared on the counter in the Head Post Office were sent to accounts Branch. He did not know what action on those TRC lists was taken in the accounts branch. He could not say that TRC lists were kept permanently in the accounts branch. He admitted that the TRC lists prepared on the counter in the Head Post Office were sent to accounts Branch. He did not know what action on those TRC lists was taken in the accounts branch. He did not know from where TRC lists were taken in possession. According to him, those were taken by Inspector, Post Offices from Almirah. He did not remember name of the Inspector. Neither any inquiry in the Accounts Branch was carried out by the CBI in his presence nor he worked in the accounts branch. No record was kept qua computer maintenance. He never took back-up from the computer regarding any data. He had floppy pertaining to data from 1.1.2000 onwards upto 7.1.2000. He had not handed over the floppy to CBI nor he revealed them about the floppy. In register of head of summary, entries were to be made after compiling TRC accounts of both counters. The difference shown in head of summary account pertained to TRC of Sunita Gupta. TRC lists of Purnima were not compared by him while making the difference in head of summary during his examination in chief. He did not remember that departmental proceedings were commenced after transfer of Sunita Gupta. He did not know whether any certificate was sent by expert from Hamirpur, regarding damaged hard disk. 18. PW74, Shiv Lal, deposed that his duties were to make entries in TRA register of all the TRCs received from the Post Offices. During the period January 1999 to 2000, the entries in TRC register were maintained/entered by him. These entries were pertaining to payment of telephone bills, security etc.. In the evening, the TRC register remained with Maya Ram and in the day time, it remained with his Officer. Once when the TRC register was still incomplete, a new TRC register was given to him by Maya Ram for making further entries in the register. In cross-examination, he deposed that he never compared TRC register with accompanying voucher. He used to hand over TRC list to computer operator for making necessary entries. He did not remember that any other document was prepared on the basis of TRC register. The custodian of new and old TRC register was Maya Ram. 19. PW75, Bimla Chauhan, deposed that she was working as Schedule Clerk in GPO Solan. He used to hand over TRC list to computer operator for making necessary entries. He did not remember that any other document was prepared on the basis of TRC register. The custodian of new and old TRC register was Maya Ram. 19. PW75, Bimla Chauhan, deposed that she was working as Schedule Clerk in GPO Solan. She was maintaining 24 schedules of different nature. She used to prepare the schedules on the basis of vouchers received from head office. She never received TRC list from Sunita Gupta, but she used to see it on the counter only. In cross-examination, she deposed that when the matter cropped up, a departmental inquiry was also held. She was also indicted in the inquiry. Action was taken against her also. The charge against her in departmental inquiry was that she did not keep head office TRC lists in her record. She admitted that the amounts stated in the TRC lists shown by Sunita Gupta to her is tallied with entries in Treasury Branch and accounts branch also. Purnima was also on the counter and was collecting telephone revenue from the customers during that period. In TRC schedule, they used to mention total consolidated figure of TRC of head office and sub offices. 20. PW76 Shyam Mohan Sharma, deposed that during his tenure, some documents of head office summary, computer bill and daily list table were compared by him along with Kirpal Singh, Chief Accounts Officer, BSNL Solan. He compared computer bill and daily list table, summary register, Ext.PW22/A. After comparison, a data table was prepared showing differences in the head office summary register, computer bill and daily list table, which was taken as loss to the Department. She put her signatures on the data table Ext.PW76/A at point “A”. At the close of day, counter clerk prepares TRC list in duplicate showing the collection, which is authenticated by the Assistant Post Master. One copy of TRC list is sent to the Accounts Officer, TRA Section. The collection of TRC is entered in the head office summary under different categories indicating head office, sub office and branch office. The amount of TRC is remitted to the TRA Department by the Accounts Office, Solan with a consolidated cheque. In addition to this, the Postal Assistant used to prepare hand to hand receipt book. The collection of TRC is entered in the head office summary under different categories indicating head office, sub office and branch office. The amount of TRC is remitted to the TRA Department by the Accounts Office, Solan with a consolidated cheque. In addition to this, the Postal Assistant used to prepare hand to hand receipt book. The amount of TRC collected on a particular day is noted down and transferred to the Treasurer, which is authenticated by the Treasurer by putting his signatures and is further authenticated by the Assistant Post Master. In case of issuance of manual receipt to the subscriber, manual receipt is prepared in duplicate with carbon. In cross-examination, he deposed that in the accounts branch, the TRC lists from branch offices and sub offices are received. TRC lists are not permanent record. On the basis of head office TRC lists, daily schedule of TRC is prepared in the accounts branch. The accounts branch used to retain TRC lists for one day till evening, thereafter, cheque is prepared by the accounts branch and is sent to TRA accounts. He did not know from where the TRC lists mentioned in seizure memo Ext.PW76/B were recovered by him. According to him, it might have been recovered by those persons, who made the inquiry. He admitted that before signing the head office summary, the Post Master used to tally the counterfoils with daily TRC lists and also with hand to hand book. 21. PW77, Dharmender Kumar Saini, deposed that he was directed to take the charge from Counter Assistant Sunita Gupta. The charge was handed over verbally and no document was prepared to this effect. Sunita Gupta verbally explained him the work and showed him the almirah where she used to keep the records pertaining to her seat. On being asked by the Post Master during inquiry, he with the help of his colleagues traced the record, which was kept in the almirah. The TRC Lists, Ext.PW22/A, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47-A, 47-B, 49, 51, 53-A, 53-B, 55, 57, 59, 61, 63, 65-B, 65-A, 67, 69/A, 69/B, 71/A, 71/B, 75/A, 75/B, 77, 79, 81, 83 and Ext.PW48/A/8, 8/1 and 4 were collected by him from the almirah and were handed over to Post Master. Similarly, he collected Ext.PW22/G and Ext.PW22/H, i.e. hand to hand receipt books and manual receipt books Ext.PW77/A and Ext.PW77/B from the same almirah and handed over to Post Master. In cross-examination, he admitted that the manual receipt book is deposited by the Counter Clerk with the Post Master in the evening, who reissues it to Counter Clerk on the next day after recording the complete particulars of used receipts. He did not inquire from the accounts branch about the original TRC lists. He admitted that every TRC list is having round post office stamp, showing time stamp and date stamp. He again deposed that time stamp is not affixed. He admitted that TRC lists mentioned by him in his examination in chief did not bear date stamp. He could not say that the original TRC lists, which were sent to accounts branch, were there or not. 22. PW78, Kanshi Ram, deposed that he remained posted as Assistant Post Master Accounts from 1993 till 2003. According to him, Counter Assistant was required to collect the payment of subscribers bills from the subscribers and to prepare the TRC list on the basis of the cash received from the subscribers. The Schedule Clerk used to visit the counter of the Counter Assistant for taking figures of TRC and record the figures in a schedule. The schedule was required to be tallied with the head office cash book. He used to tally the schedule in his cash book. Schedule was maintained for whole collection of the month and at the end of the month, the schedule was again tallied with head office cash book and was sent to AOTRA, GMT Office. Along with total amount of cheque, for which the cheque was drawn, was to be sent to the A.O.. Three copies of TRC lists were drawn by the counter Assistant. One copy of TRC list was being received in the account branch. He again stated that it was never given in those days. On that day, the figures were taken from the Postal Assistant. In cross-examination, he deposed that the acknowledgement receipt of Ext.PW78/1 to Ext.PW78/23, which were schedules for various months, were not on the record. He volunteered that receipts of the cheques were not on the record. He again stated that it was never given in those days. On that day, the figures were taken from the Postal Assistant. In cross-examination, he deposed that the acknowledgement receipt of Ext.PW78/1 to Ext.PW78/23, which were schedules for various months, were not on the record. He volunteered that receipts of the cheques were not on the record. He admitted that since 1991 till date at no point of time, the Departmental Rules for drawing three TRC lists by the Counter Assistant and sending one copy of the same to the Accounts branch were changed. The TRC list, which was sent as per the Rules to the accounts branch, was not the permanent record of the accounts branch. The accounts branch also used to receive TRC lists from the offices. He also admitted that daily TRC lists were not being received in the accounts branch during the period 1999, 2001 and 2002. These lists were kept in bundles and TRC schedule was prepared. Such bundles were weeded out probably after eighteen months. These bundles were preserved in case the Auditor demanded for TRC lists, the same could be produced for verification and comparison. According to him, non-supply of TRC list by Counter Assistant to the accounts branch was not against the Rules. He never made complaint of Sunita Gupta regarding non-supply of the TRC list on the same day. He complained to the Incharge of Sunita Gupta verbally several times. 23. PW79, Pardeep Gupta, identified the handwriting and signatures of Maya Ram on various documents. 24. PW80, Naresh Sood, had handed over relevant record to CBI. Sunita Gupta had voluntarily furnished her specimen signatures and handwriting Ext.PW80/5 to Ext.P80/61 in his presence. 25. PW81, Karan Bahadur, deposed that he had been working as Peon in the office of G.M. Telecom Department from 1999 to 2000. According to him, during January 2000 to September 2000, TRC record was not brought from Telephone Exchange to GMTD Office Saprun because he used to regularly check the store room at GMTD Office Saprun. 26. PW82, Sat Pal Malik, deposed that accused Maya Ram voluntarily furnished his specimen signatures and handwritings Ext.PW82/1 to Ext.PW82/61 in his presence. Accused R.K. Sood also furnished his specimen signatures and handwriting Ext.PW82/63 to Ext.PW82/102. He attested the specimen signatures and handwriting. 27. PW83, Gurmit Singh, identified the writing Mark Q-70 of Maya Ram on document Ext.PW79/8. 28. 26. PW82, Sat Pal Malik, deposed that accused Maya Ram voluntarily furnished his specimen signatures and handwritings Ext.PW82/1 to Ext.PW82/61 in his presence. Accused R.K. Sood also furnished his specimen signatures and handwriting Ext.PW82/63 to Ext.PW82/102. He attested the specimen signatures and handwriting. 27. PW83, Gurmit Singh, identified the writing Mark Q-70 of Maya Ram on document Ext.PW79/8. 28. PW84, R. Venkatesan, deposed that he remained posted as Accounts Officer, in the office of GMTD Solan from 2.8.2000 to 25.2.2003. On 14.11.2000 Maya Ram asked him to take over the section as he wanted to go on leave. He prepared handing over and taking over memo and asked him to sign the memo on back date i.e. 1.9.2000 because he was learning the computer work from Maya Ram. He signed the memo dated 1.9.2000 on 14.11.2000 in good faith. In the evening of 14.9.2000, his Chief Accounts Officer called him and he checked for the TRC lists for the earlier period. He found that only three months i.e. June, July and August 2000 were available and the TRCs for the earlier period were not available. He brought this fact to the notice of Chief Accounts Officer, Mr. Gurmoj Singh. Data of payment particulars was not displayed in the computer. On 15.9.2000, he gave a letter to accused Maya Ram stating about the non-availability of TRC records and date of payment details in the server/computer. The Chief Accounts Officer issued a memo to Maya Ram asking him to explain how he handed over the charge to him without any official order. According to him, normally the Accounts Officer Incharge of TRA-II used to prepare back up of the data available in the server periodically and also wherever there was change of officer weekly or monthly. No back up data was handed over by Maya Ram. The police official brought the tape cartridge. In the presence of Vigilance Officer, Mr. Gupta, Mr. Dullu and Chief Accounts Officer from circle office, the cartridge was opened in the computer and data was imported. Three copies of the data were prepared. One was given to CEO, second was given to him and third one was given to Vigilance Officer of their Department. He took up the print of the data available in the cartridge in the presence of Mr. R.P. Gupta and L.D. Negi. He signed the printouts. Three copies of the data were prepared. One was given to CEO, second was given to him and third one was given to Vigilance Officer of their Department. He took up the print of the data available in the cartridge in the presence of Mr. R.P. Gupta and L.D. Negi. He signed the printouts. The printouts, Ext.PW84/1 qua details of daily list table showing amount of telephone bills, demand notes showing amount of computer bill, demand notes and other bills deposited on a particular date for the period, i.e. 1.1.1999 to 31.5.2000 at Solan Post Office and Ext.PW84/2, i.e. detail of computer bill payments date wise along with number of vouchers for the period January 1992 to May 2000 at Solan Post Office. He handed over the tape cartridge and printout to the CBI vide seizure memo Ext.PW84/3, dated 22.8.2002. The certificate dated 13.6.2002 regarding non availability of record was Ext.PW84/5. The details of the list of amount issued under the signatures of Shamsher Singh Assistant Chief Accounts Officer are Ext.PW84/6 and Ext.PW84/7. In cross-examination, he deposed that the tape cartridge on the first day was in the hand of the Police Officer. It was of black colour. Every tape cartridge had a specific number put by the manufacturer. He did not remember the identification number of tape cartridge, which though was noted in the police record. The cartridge was brought in the month of November 2000. The cartridge was opened in the presence of Maya Ram. The original tape cartridge was taken back by the police officer. The copy of tape cartridge which was given to him was handed over to CBI by him somewhere in the month of August 2002. When he handed over the copy of tape cartridge in August 2002 to the CBI, it was not compared with the original tape cartridge, which was brought by the Police Officer. The data Ext.PW84/1 and Ext.PW84/2 was imported from the cartridge. There was other data also available in the tape cartridge, which was not given to CBI in the form of hard copy since it was not required by them. 29. PW85, Kirpal Singh, remained posted as Chief Accounts Officer in the office of G.M. Telecom, Solan w.e.f. 2001 to 2003. According to him, during the relevant time, accused Maya Ram was working in TRA-I and TRA-II. 29. PW85, Kirpal Singh, remained posted as Chief Accounts Officer in the office of G.M. Telecom, Solan w.e.f. 2001 to 2003. According to him, during the relevant time, accused Maya Ram was working in TRA-I and TRA-II. He was maintaining the record of TRC received from the Post Office. All the bills stated by him in his examination-in-chief were issued by accused Maya Ram. PW1 to PW5, PW7 to PW21 and others were stated to have paid the telephone charges as per the receipts on record. The Post Office had not remitted full payment received by it as per TRCs to Accused Maya Ram. However, Maya Ram had indicated full payment against the telephone charges of the subscribers as per the subscribers record cards, as a result of which telephones could not be disconnected. In cross-examination, he admitted that a statement of loss was prepared by the Department. He could not say whether computer bill table and subscriber record cards could not be tampered with and manipulated since those were self generated by the software being technical in nature. He admitted that Ext.PW15/A and Ext.PW15/B were not generated in his presence. He admitted that 106 telephones in question were not disconnected because there was no outstanding payment against them. He volunteered that the payment had been shown to have been made in subscriber records card but at some places the amount and dates were varying from the payment. He also admitted that he had made a statement before the CBI that the aforesaid telephones were not disconnected due to payment made by them as per entries made in column No.5 on perusal of the subscriber records card. 30. PW86, T.Joshi, Assistant Government Examiner of Questioned Documents, examined specimen signatures and handwriting of the accused persons with reference to questioned documents. As per opinion, Ext.PW86/11 and Ext.PW86/12, the accused persons were the authors of the questioned documents. 31. PW87, R.K. Dullo, deposed that as per billing, the Accounts Officer alone could manipulate or delete the data of the computer. The police had produced before him a data cartridge in the presence of R.P. Gupta Vigilance Officer Telephones, A.K. Bhardwaj, and Gurmail Singh. The said cartridge was produced before him in a sealed cover. Seal was intact. R. Venkateshan opened the seal in his presence and took out the data cartridge and downloaded the same in the system in his presence. The said cartridge was produced before him in a sealed cover. Seal was intact. R. Venkateshan opened the seal in his presence and took out the data cartridge and downloaded the same in the system in his presence. One additional copy was also downloaded, which was handed over to R. Venkateshan. Data cartridge which was opened in his presence and downloaded was again resealed in a parcel Ext.PW87/A. 32. PW88, Ram Parkash Gupta, deposed that a data cartridge was produced in sealed cover, which was unsealed and copied. After copying, the data cartridge was resealed in the same parcel, Ext.PW87/A. The original cartridge, Ext. PW87/A was kept by the police, whereas one copy whereof was given to R. Venkateshan. The police also asked Anil Jain an Engineer of the company to import data from the server of some particular period, which he did not remember. He reported that data of the requisite period was not available in the server. Thereafter, he was given data cartridge which was sealed in a cover Ext.PW87/A and he was asked to tell whether the said cartridge contained certain data. He disclosed that the data w.e.f. March 1998 upto 6.9.2000 was available in the said data cartridge. The data was collected in the data cartridge on 8.9.2000. Cartridge contained bills data table since 20.3.1998 till 6.9.2000. After two years, he was directed to visit Solan, the office of Accounts Officer, TRA in relation with the investigation. He joined investigation at Solan. On that day, CBI Officer was present there. Mr. Negi, Assistant Director Vigilance was also present. He was from his Department. On that day, the cartridge, which was handed over to R. Venkateshan, was taken and printouts were taken and handed over to CBI Officer as well as to R.Venkateshan for reconciliation. 33. PW89 Ram Rattan deposed that on 22.10.2000, he was proceeding to his fields. He was stopped by the Police. The police asked him whether he knew Maya Ram. He replied in affirmative. The police presented a blank paper before him and asked him to sign the paper. He signed the blank paper. The police official were sitting in the courtyard of Maya Ram on two cots. He also remained sitting on a cot in the courtyard of Maya ram. It was about 9-10 A.M.. Father of Maya Ram asked him to take tea, but he refused. He was declared hostile. He signed the blank paper. The police official were sitting in the courtyard of Maya Ram on two cots. He also remained sitting on a cot in the courtyard of Maya ram. It was about 9-10 A.M.. Father of Maya Ram asked him to take tea, but he refused. He was declared hostile. In cross-examination conducted by the learned Public Prosecutor, he deposed that the police simply obtained his signatures. None else was there except the police officials and Maya Ram. No search of house of Maya Ram was conducted in his presence. His statement was not recorded by the police. Maya Ram did not produce anything to the police. Ram Pal was not present on the spot in his presence. Maya Ram identified his house in his presence. Maya Ram had not taken the police officials inside his house. He denied that Maya Ram got “Malinus 1.2 Data cartridge (computer) recovered. He also denied that the said cartridge was packed and sealed with seal impression “A”. 34. PW90 Ram Pal, deposed that he was present in his land near the house of Maya Ram. 2-3 Police officials brought Maya Ram there. He was asked by the police officials whether he knew Maya Ram. He replied in affirmative. He was called by the police in front of the house of Maya Ram. The police had already written certain papers. He and Ram Rattan were asked by the police to sign written papers. According to him, nothing was recovered from the house of Maya Ram nor Maya Ram produced anything before the Police. He was declared hostile. In cross-examination conducted by the learned Public Prosecutor, he deposed that “it is correct that accused Maya Ram took the police inside his front room of the house and got recovered one “Malinu 1.2 Data cartridge (Computer)”. However, he was confronted with portion A to A of his statement mark Ext.PW90/A, in which it was so recorded, meaning thereby, the word “correct” has wrongly been typed out as “incorrect”. He also denied that the recovered cartridge was packed and sealed in a parcel by the police and seal after use was handed over to Ram Rattan. The police had not obtained his signatures on any paper. He did not know whether signatures of Ram Rattan were obtained on seizure memo Ext.PW90/A. According to him, seizure memo Ext.PW90/A did not bear his signatures. 35. The police had not obtained his signatures on any paper. He did not know whether signatures of Ram Rattan were obtained on seizure memo Ext.PW90/A. According to him, seizure memo Ext.PW90/A did not bear his signatures. 35. PW91, Narotam Parshad, deposed that he initially carried out the investigation. According to him, on 22.10.2000, during the course of interrogation while accused Maya Ram was in custody, he made a disclosure statement stating therein that he had kept concealed a data cartridge in his house at Village Dheen in the State of Haryana and he could get the same recovered. The disclosure statement was made by the accused Maya Ram in the presence of witnesses, namely, Vijay Kumar and Mool Raj. He recorded the statement of the accused under Section 27 of the Indian Evidence Act, vide Ext.PW91/B, which was signed by him as welSl as the witnesses. When he reached in the house of accused Maya Ram, he associated two witnesses Ram Rattan and Ram Pal of Village Dheen. The accused took out one data cartridge kept concealed in a trunk from the room of his house vide Ext.PW87/A in the presence of witnesses. Maya Ram handed over the same to him, which was taken into possession by affixing seal impression of seal “A”. He prepared memo in the presence of witnesses vide Ext.PW90/A. He prepared the spot map of the place from where the accused got the said data cartridge recovered vide Ext.PW91/C. He recorded statements of the witnesses. On 15.11.2000, on the direction of S.P. Solan, he called R. Venkteshan, R.P. Gupta and R.K. Dullo. He got the data cartridge analyzed and tested from R. Venkateshan in the presence of R.P. Gupta and R.K. Dullo vide Ext. PW87/B. After analysis, R. Venkateshan handed over three duplicate copies of data cartridge Ext.PW87/A and the data cartridge was sealed in the same parcel and was handed over to him. He kept the data cartridge and three duplicate copies on record. In cross-examination, he deposed that he recorded disclosure statement Ext.PW91/B immediately when accused made disclosure. The witnesses were already present in the Police Station. One of the witnesses had come to inquire about his licence and the second witness had come to the Police Station to make complaint. According to him, the accused himself disclosed that he had fed the data of embezzlement in the data cartridge. The witnesses were already present in the Police Station. One of the witnesses had come to inquire about his licence and the second witness had come to the Police Station to make complaint. According to him, the accused himself disclosed that he had fed the data of embezzlement in the data cartridge. They reached village Dheen in the afternoon. According to him, when he reached the house of Maya Ram, many persons assembled there and out of whom, he associated two witnesses namely Ram Pal and Ram Rattan. No Ruqua was sent to the said witnesses. Maya Ram accused himself disclosed and led them to his house. 36. PW92, Rajesh Patwal, deposed that the FIR Ext.PW92/A was registered with CBI, ACB, Chandigarh. The investigation of the case was initially entrusted to Raj Singh. Later on the investigation of the case was transferred and entrusted to him. He examined a number of witnesses and collected documents vide various seizure memos and letters. He identified the sealed tape cartridge Ext.PW84/9. He sent the documents of disputed and admitted signatures to GEQD, for comparison and received opinion Ext.PW86/11. Thereafter, he placed the case file before the sanctioning authority concerned, who accorded sanction to prosecute Maya Ram vide sanction order Mark PW92/D. He prepared the challan and presented before the Court. 37. PW93, N. Parthasarathy, deposed that he accorded sanction to prosecute accused Maya Ram vide Ext.PW93/1. 38. PW94, Raj Singh, deposed that during the course of investigation, he seized documents vide seizure memo, Ext.PW92/8, dated 20.8.2001 from K.S. Rana, UDC (Crime) CBI ACB Chandigarh. 39. PW95, Munish Dogra, deposed that he is a qualified diploma holder in hardware from Chandigarh and software from NIT Shimla. In the month of August 2002, the CBI official took him to the Post Office at Solan. The CBI Official got a computer checked from him in the presence of Post Master and another person. He checked the computer and diagnosed. The hard disk of the computer was crashed. The CBI Officer handed over the hard disk to him which was taken by him to his workshop at Nadaun. He tried to retrieve the data, but the data could not be retrieved from the crashed hard disk. 40. DW1, A.K. Sardana, deposed that subscriber report cards and sub ledgers of the telephones in question from 1.1.1999 onwards were not traceable. Subscriber reports were maintained. He tried to retrieve the data, but the data could not be retrieved from the crashed hard disk. 40. DW1, A.K. Sardana, deposed that subscriber report cards and sub ledgers of the telephones in question from 1.1.1999 onwards were not traceable. Subscriber reports were maintained. Sub ledger was consolidated report of all telephones prepared month-wise. He was not the custodian of subscriber report cards and sub ledger accounts. Sub ledger/monthly review was also not traceable in the record from 1.1.1999. The outstanding bill register for the period in question i.e. 1.1.1999 of the telephones was also not available in the record as reported by the concerned official vide Ext.DAA. 41. DW2, Hem Shankar, deposed that Rs.90,000/-was deposited by accused Sunita Gupta and same was still with the office under unclassified receipt. In cross-examination, he deposed that the accused Sunita Gupta was charged to have misappropriated a sum of Rs.35,000/- approximately. 42. DW3, Asha Anthwal, deposed that excess payment reports were not entered in the record. These were maintained separately by the General Manager concerned. It is not possible to find out shortages, if any, from these payments. Shortages could be found from sub ledger report accounts. The sub ledger account reports in question were not available in their office, though according to her, she got the same traced. Profit and loss account was not maintained at that time because the BSNL was under the direct control of Ministry of Communication. In cross-examination conducted by the learned Public Prosecutor, she deposed that the subscriber report card of each telephone remained under the custody of the Accounts Officer of the concerned District of BSNL. The record relating to the case of the office of Chief General Manager was not available for the period from 1.1.1999 to 31.12.1999. Record of outstanding bills payable by the customers was not maintained by the chief Accounts Officer of Chief General Manager, Head Quarters. Such record was maintained by the Accounts Officer of the concerned District of BSNL. TRC was received by the Accounts Officer concerned and he was responsible for the maintenance thereof. 43. DW4 O.P. Sharma, deposed that sub ledger account reports w.e.f. 1.1.1999 to 31.5.2000 were not available in the record. There was no record available with the office of Accounts Officer TRA-1 and TRA-II with regard to weeding out/destruction of the record (TRCS). TRC was received by the Accounts Officer concerned and he was responsible for the maintenance thereof. 43. DW4 O.P. Sharma, deposed that sub ledger account reports w.e.f. 1.1.1999 to 31.5.2000 were not available in the record. There was no record available with the office of Accounts Officer TRA-1 and TRA-II with regard to weeding out/destruction of the record (TRCS). He tendered in evidence Post Office collection statements from April 1999 to March 2000 vide Ext.DW4/15 to Ext.DW4/26. In cross-examination conducted by the learned Public Prosecutor, he deposed that sub ledger account reports, which were required to be brought before the Court, were not traceable. The P.O. statements tendered in evidence were also prepared by the accused Maya Ram from his own record. However, record on the basis of which these P.O. statements were prepared was not traceable and could not be located by him. As per the procedure, the payment received through cheque from Post Office was posted in the individual subscriber record card of each telephone. 44. DW5, Gurmeet Singh, is a formal witness. 45. CW1, R.K. Dullo, deposed that as per the Rules, the Accounts Officers of Chief Accounts Officers of BSNL could not keep the data in cartridge or otherwise at their houses. Only Administrator of master computer could play the data cartridge in his computer. In cross-examination, he deposed that he did not know name of manufacturer of cartridge Ext.PW87/A. He did not check any data cartridge like Ext.PW87/A after five years. He did not know if the data cartridge prepared from Ext.PW87/A was sealed before handing over the same to R. Venkteshan. He did not know if the data copy of data cartridge (copy) handed over to R. Venkateshan remained under his custody or not. He admitted that Accounts Officer BSNL used to send a copy of sub ledger account to Circle Officer, every month. Sub ledger was prepared at the end of the month after amount was received from the collection centres including post offices. He did not remember if any memo regarding preparation of duplicate copy of the cartridge was prepared or not. He also did not know if any memo of entrustment of the cartridge (copy) to R. Venkateshan was prepared or not. He had prepared observation memo of non-availability of data in the computer of accused Maya Ram in his presence. 46. He did not remember if any memo regarding preparation of duplicate copy of the cartridge was prepared or not. He also did not know if any memo of entrustment of the cartridge (copy) to R. Venkateshan was prepared or not. He had prepared observation memo of non-availability of data in the computer of accused Maya Ram in his presence. 46. According to PW91, Narotam Parshad, on 22.10.2000, during the course of interrogation, while accused Maya Ram was in custody, he made a disclosure statement stating therein that he had kept concealed a data cartridge in his house at Village Dheen in the State of Haryana and he could get the same recovered. The disclosure statement was made by the accused Maya Ram in the presence of witnesses, namely, Vijay Kumar and Mool Raj. PW91, Narotam Parshad, recorded the statement of the accused Maya Ram under Section 27 of the Indian Evidence Act, vide Ext.PW91/B, which was signed by him along with witnesses, Vijay Kumar and Mool Raj. In his cross-examination, he specifically deposed that when he recorded disclosure statement Ext.PW91/B, the witnesses, namely Vijay Kumar and Mool Raj were already present in the Police Station. According to him, one of the witnesses had come to the Police Station to inquire about his licence and the second witness had come to the Police Station to make complaint. The accused Maya Ram himself disclosed that he had fed the data of embezzlement in the data cartridge. They reached village Dheen in the afternoon. The witnesses, namely, Vijay Kumar and Mool Raj, who had signed the disclosure statement Ext.PW91/B, have not been examined by the prosecution. There is no explanation why the prosecution has not examined Vijay Kumar and Mool Raj. The presence of Vijay Kumar and Mool Raj in the Police Station at the same time is also doubtful. It is not understandable why a witness would come to the Police Station to inquire about his licence. Nature of licence has also not been disclosed by the prosecution. One of the witnesses to disclosure statement, Ext.PW91/B was also stated to have come to the Police Station to make complaint. The details of the complaint have also not been disclosed by the prosecution. Nature of licence has also not been disclosed by the prosecution. One of the witnesses to disclosure statement, Ext.PW91/B was also stated to have come to the Police Station to make complaint. The details of the complaint have also not been disclosed by the prosecution. In case witness had made a complaint before the police, the complaint ought to have been placed on record by the prosecution to substantiate the presence of witness at Police Station. 47. After disclosure statement Ext.PW91/B made by Maya Ram, PW91 Narotam Parshad along with police party went to Village Dheen in the State of Haryana. When they reached the house of accused Maya Ram, they associated two witnesses Ram Rattan and Ram Pal of Village Dheen. According to PW91, Narotam Parshad, accused Maya Ram took out one data cartridge kept concealed in a trunk from his room vide Ext.PW87/A in the presence of witnesses, Ram Rattan and Ram Pal. Maya Ram handed over the same to PW91 Narotam Parshad, which was taken into possession by putting seal impression of seal “A”. He prepared memo in the presence of witnesses vide Ext.PW90/A, which was signed by him as well as the witnesses. He prepared the spot map of the place from where the accused got the said data cartridge recovered vide Ext.PW91/C. 48. What PW89 Ram Rattan deposed is that on 22.10.2000, he was proceeding to his fields. The police called him and asked whether he knew accused Maya Ram. He replied in affirmative. The police presented him a blank paper and asked him to sign the same. He signed the blank paper. The police officials were sitting in the courtyard of Maya Ram on two cots. He also remained sitting on a cot in the courtyard of Maya ram. It was about 9-10 A.M. However, according to PW91, Narotam Parshad, he along with police party reached Village Dheen in the afternoon. PW89 Ram Rattan was declared hostile. In cross-examination conducted by the learned Public Prosecutor, he again reiterated that the police simply obtained his signatures. According to him, none else was there except the police officials and Maya Ram. No search of house of Maya Ram was conducted in his presence. His statement was not recorded by the police. Maya Ram did not produce anything to the police. Ram Pal was not present on the spot in his presence. According to him, none else was there except the police officials and Maya Ram. No search of house of Maya Ram was conducted in his presence. His statement was not recorded by the police. Maya Ram did not produce anything to the police. Ram Pal was not present on the spot in his presence. Maya Ram identified his house in his presence, however, he had not taken the police officials inside his house. He denied that Maya Ram got “Malinus 1.2 Data cartridge (computer) recovered and the same was packed and sealed with seal impression “A”. He denied his signatures at point “B” encircled red. 49. PW90 Ram Pal, who is another witness of recovery of data cartridge, deposed that he was present in his land near the house of Maya Ram. About 2-3 Police officials brought Maya Ram there. He was called by the police in front of the house of Maya Ram. According to him, the police had already written certain papers. He along with Ram Rattan was asked by the police to sign written papers. According to him, nothing was recovered from the house of Maya Ram nor Maya Ram produced anything before the Police. He was also declared hostile. In cross-examination conducted by the learned Public Prosecutor, he also reiterated the same stand as in the examination-in-chief. The police had not obtained his signatures on any paper. Even he did not know whether signatures of Ram Rattan were obtained on seizure memo Ext.PW90/A. According to him, seizure memo Ext.PW90/A did not bear his signatures. 50. Though, statement of PW89 Ram Rattan and PW90 Ram Pal cannot be discarded only for the reason that they were declared hostile, but it has made a dent on the case of the prosecution. Their statements have to be considered with care and caution. They have not at all supported the case of the prosecution, the manner in which data cartridge was stated to have been recovered and sealed. It is also intriguing to note that how the prosecution spotted only these two witnesses, who happened to know accused Maya Ram. The disclosure statement, Ext. PW91/5 made under Section 27 of the Evidence Act by the accused Maya Ram, which led to recovery of data cartridge vide Ext. PW87/A at Village Dheen is doubtful. 51. The Division Bench of Delhi High Court in Kewal Singh vs. State, 2007 Cri. The disclosure statement, Ext. PW91/5 made under Section 27 of the Evidence Act by the accused Maya Ram, which led to recovery of data cartridge vide Ext. PW87/A at Village Dheen is doubtful. 51. The Division Bench of Delhi High Court in Kewal Singh vs. State, 2007 Cri. L.J. 2083 has held that a person known to the deceased examined as witness to recover of weapon on road side, his testimony was not reliable as it could not be coincidence that a person known to deceased only could be spotted by the police. The Division Bench has held as under: 14. The prosecution has examined one Mahender Singh (PW 11), a resident of Punjab in village Jaswa, to prove the recovery of kirpan at the instance of Piara Singh. Although this witness had deposed that on 7-5-83 when he was present at village I Roopowar at about 5 p.m. and was coming on his truck from the side of Tanda and going towards Gar Di Wala the police stopped him. At that time accused Piara Singh was present with the police officials and he led the police party in a jungle from where he took out a kirpan which was then sealed by the police. That kirpan is Ex. P-l. The learned trial Court entertained doubt about the truthfulness of the evidence of this witness on the ground that he was not truthful about his actual relationship with the family of the deceased. In his chief-examination he had not disclosed that he knew the family of the deceased and it was only in cross-examination that he knew the deceased Gurdhian Singh. It cannot be a coincidence that a person known to the deceased only could be spotted by the police on road side to be associated as a witness for the recovery of the kirpan. It appears that the investigating officer chose to associate only those persons as witnesses who were either related to the deceased or otherwise were known to him. So we also are not inclined to rely upon the evidence of PW-11 Mahender Singh. The learned trial Court also observed that the recovery of kirpan was established from the evidence of the police official PW-21 SI Ram Singh. There is no doubt that this witness has deposed about the recovery of kirpan at the instance of Piara Singh. So we also are not inclined to rely upon the evidence of PW-11 Mahender Singh. The learned trial Court also observed that the recovery of kirpan was established from the evidence of the police official PW-21 SI Ram Singh. There is no doubt that this witness has deposed about the recovery of kirpan at the instance of Piara Singh. However, we feel that since the investigating officer intentionally had been associating interested witnesses only at different stages we cannot place any reliance on the evidence of his subordinate police official. We are/therefore, of the view that the prosecution evidence, as discussed above was not reliable and sufficient enough to convict the accused persons. 52. The entire case of the prosecution hinges upon the recovery of data cartridge, Ext. PW87/A, from which data for the relevant period was downloaded in the computer and printouts were taken out. PW91, Narotam Parshad, deposed that on 15.11.2000, he called PW84 R. Venkteshan, PW88 R.P. Gupta and PW87 R.K. Dullo. He got the data cartridge analyzed and tested from PW94 R. Venkateshan in the presence of PW88 R.P. Gupta and PW87 R.K. Dullo vide Ext. PW87/B. After analysis, PW84 R. Venkateshan handed over three duplicate copies of data cartridge Ext.PW87/A and again the data cartridge was sealed in the same parcel and was handed over to him. He kept the data cartridge and three duplicate copies on record. In cross-examination, he categorically admitted that the copies of data were not shown to him in the Court. PW84 R. Venkateshan had handed over to him three hard copies of data, which were downloaded from cartridge Ext.PW87/A. No seizure memo was prepared of taking into possession copies of such data. This was serious lapse on the part of the prosecution. Once three hard copies of data, alleged to have been downloaded from the cartridge, Ext.PW87/A, were handed over to PW91 Narotam Parshad, the seizure memo to this effect ought to have been prepared to ensure that there was no tampering with the same. PW84 R. Venkateshan testified that the Police Officer brought the data cartridge in the presence of PW88 R.P. Gupta Vigilance Officer, PW87 R.K. Dullo and Chief Accounts Officer from circle office. The cartridge was opened in the computer and data was imported. Three copies of the cartridge were prepared. PW84 R. Venkateshan testified that the Police Officer brought the data cartridge in the presence of PW88 R.P. Gupta Vigilance Officer, PW87 R.K. Dullo and Chief Accounts Officer from circle office. The cartridge was opened in the computer and data was imported. Three copies of the cartridge were prepared. One was given to the Chief Accounts Officer, second was given to him and third one was given to Vigilance Officer of their Department. He took out printouts in the presence of PW88 R.P. Gupta and L.D.Negi. He signed the printouts, Ext.PW84/1 qua details of daily list table showing amount of telephone bills, demand notes showing amount of computer bill, demand notes and other bills deposited on a particular date for the period, i.e. 1.1.1999 to 31.5.2000 at Solan Post Office and Ext.PW84/2, i.e. detail of computer bill payments date wise along with number of vouchers for the period January 1992 to May 2000 at Solan Post Office. According to PW91 Narotam Parshad, the data cartridge was got analyzed and tested from PW94 R. Venkateshan in the presence of PW88 R.P. Gupta and PW87 R.K. Dullo vide Ext. PW87/B on 15.11.2000. However, fact of the matter is that he handed over the tape cartridge and printouts to the CBI vide seizure memo Ext.PW84/3 on 22.8.2002. What happened with so called data cartridge, Ext. PW87/A w.e.f. 15.11.2000 to 22.8.2002 has not been explained by the prosecution, more particularly, when no seizure memo was prepared by PW91 Narotam Parshad when three hard copies of data downloaded from the cartridge were handed over to him. It was absolute necessary for the prosecution to ensure that the data cartridge and printouts remained in the safe custody. The data cartridge was got analyzed and tested from PW94 R. Venkateshan, who had taken over the charge from accused Maya Ram. There are a number of primary Institutes, from where the data cartridge could be analyzed by the experts. PW84 R. Venkateshan, joined as Accounts Officer, in the office of GMTD Solan on 2.8.2000. On 14.11.2000 accused Maya Ram asked him to take over the section as he wanted to go on leave. Accused Maya Ram prepared handed over and taking over memo and asked him to sign the memo on back date i.e. 1.9.2000. PW84 R. Venkateshan, joined as Accounts Officer, in the office of GMTD Solan on 2.8.2000. On 14.11.2000 accused Maya Ram asked him to take over the section as he wanted to go on leave. Accused Maya Ram prepared handed over and taking over memo and asked him to sign the memo on back date i.e. 1.9.2000. According to him, on 15.9.2000, he gave a letter to accused Maya Ram stating about the non-availability of TRC records and data of payment details in the server/computer. The explanation given by PW84 R. Venkateshan that he had signed the memo dated 1.9.2000 on 14.11.2000 in good faith cannot be believed. 53. Now the Court will advert to the statements of PW87 R.K. Dulloo and PW88 Ram Parkash Gupta, the manner in which data cartridge, Ext.PW87/A, was got analyzed. 54. According to PW87, R.K. Dulloo, the State Police had produced before him a data cartridge in the presence of PW88 Ram Parkash Gupta Vigilance Officer Telephones, A.K. Bhardwaj and Gurmail Singh. PW84 R. Venkateshan opened the seal in their presence and took the data cartridge and downloaded the same in the system and the data cartridge was put in the same. One additional copy was also downloaded which was handed over to PW84 R. Venkateshan. Data cartridge, which was opened in his presence and downloaded, was again resealed in a parcel Ext. PW87/A bearing his signatures encircled in red at point “A”. PW88 Ram Parkash Gupta, deposed that in the month of November 2000, he was directed by his Chief General Manager, Telecom Department, N.S. Gill to visit the office of Accounts Officer, Telecom Revenue (Computer), Solan and he joined investigation of the case. At that time PW84 R. Venkateshan, Accounts Officer, TRA (Computer), PW86 Dulloo, Anil Jain, an engineer and police personnel were present. A data cartridge was produced in sealed cover. It was unsealed and copied. After copying, the data cartridge was resealed in the same parcel vide Ext.PW87/A, which was bearing his signature encircled in red at point “B”. The original cartridge, Ext.PW87/A was kept by the police, whereas one copy whereof was given to PW84 R. Venkateshan. The police also asked Anil Jain, an engineer of the company to retrieve data from the server of some particular date, which he did not remember. Anil Jain reported that data of requisite period was not available in the server. The original cartridge, Ext.PW87/A was kept by the police, whereas one copy whereof was given to PW84 R. Venkateshan. The police also asked Anil Jain, an engineer of the company to retrieve data from the server of some particular date, which he did not remember. Anil Jain reported that data of requisite period was not available in the server. Thereafter, he was given data cartridge, which was sealed in sealed cover Ext.PW87/A and he was asked to tell whether the said cartridge contained certain data. He disclosed that the data w.e.f. March 1998 to 6.9.2000 was available in the data cartridge. The data was collected in the data cartridge on 8.9.2000. Cartridge contained computer bills data table from 20.3.1998 till 6.9.2000. Thereafter, after two years, his superior directed him to visit office of Accounts Officer, TRA, Solan in relation with the investigation. On that day, the CBI Officer was present there. The Assistant Director Vigilance was also present. He was from his Department. The cartridge, which was handed over to PW84 R. Venkteshan was taken and printouts were taken and handed over to CBI Officer as well as to PW84 R. Venkateshan for reconciliation. It has not been stated by PW88 Ram Parkash Gupta whether seals were intact or cartridge was again resealed. In cross-examination, he categorically deposed that he did not remember the number of seals on the parcel containing data cartridge, which was produced in the office at Solan. He had not noted down the number of data cartridge which was taken out from the parcel. The data cartridge contained in parcel Ext.PW87/A was uploaded in the server. According to him, at the time of preparation of copy of data cartridge or handing over the same to PW84 R. Venkateshan, few papers were prepared, but he did not remember whether memos regarding preparation of the copies and handing over the same to PW84 R. Venkateshan were prepared. He did not know whether observation memo was prepared by the Engineer concerned. He did not remember whether any memo was prepared regarding availability or non-availability of the data in the computer. The printouts were taken in the year 2002. He did not remember whether name of Dulloo was disclosed by him to the CBI Officers regarding his presence on the spot. He did not remember whether memo Ext. PW87/B was prepared at Police Station. The printouts were taken in the year 2002. He did not remember whether name of Dulloo was disclosed by him to the CBI Officers regarding his presence on the spot. He did not remember whether memo Ext. PW87/B was prepared at Police Station. He even did not know whether whole data was available in the computer. It also casts doubt the manner in which the data was downloaded from the computer without taking any precaution to ensure authenticity of the printouts. 54. The accused persons have also moved an application for testing the authenticity of the data cartridge, more particularly, the manner in which the same was recovered on the basis of disclosure statement, Ext.PW91/B. This application was contested by the prosecution and the learned Sessions Judge (Special Judge) erred in law by rejecting the application by not ordering whether the printouts were taken out from the same data cartridge relied upon by the prosecution or not. In case the data cartridge alleged to have been recovered was genuine, there should not have been any objection by the prosecution to produce the same in the court to see whether the printouts taken out from the data cartridge were the same in the data cartridge. 55. The matter was required to be considered from another angle. According to the prosecution, the data was destroyed by accused Maya Ram since he was custodian of the same. In case he had destroyed the data, there was no occasion for him to get the same stored in a data cartridge, which was allegedly recovered by the police from his village at Dheen in State of Haryana. 56. As per PW95, Munish Dogra, in the month of August 2002, the CBI officials took him to the Post Office at Solan. The CBI Officials got a computer checked from him in the presence of Post Master and another person. He checked the computer. The hard disk of the computer was crashed. He categorically admitted that he did not give any report in writing to the Post Master to the effect that the hard disk of the computer was crashed. According to him, the CBI Officer handed over the hard disk to him which was taken by him to his workshop at Nadaun. He tried to retrieve the data, but the data could not be retrieved from the crashed hard disk. According to him, the CBI Officer handed over the hard disk to him which was taken by him to his workshop at Nadaun. He tried to retrieve the data, but the data could not be retrieved from the crashed hard disk. In cross-examination, he categorically stated that he had not obtained any receipt from Post Master qua returning the hard disk to him. He had not kept and maintained any record regarding checking of hard disk in his workshop. This exercise should have been got done from some experts from the Government agencies instead of getting checked the computer from a person, who was simply a diploma holder and was running a shop, that too at a remote place, i.e. Nadaun, District Hamirpur. 57. The complainant, PW6, R.S. Kondal, Assistant Post Master, had lodged complaint Ext.PW6/A, dated 9.9.2000 and complaint dated 13.9.2000 before the SHO, Police Station Solan with regard to alleged misappropriation/short credit of different amounts of different telephone bills collected at Post Office, Solan by accused Sunita Gupta. He admitted that a sum of Rs.90,000/- was deposited by Sunita Gupta in the Head Post Office Solan, for which certificate of credit Ext.PW6/C was issued by the Post Master, Solan, in her favour. PW22, Sukh Ram Verma, deposed that at the close of the day, the receipt regarding total deposits of telephone revenue is generated by the Postal Assistant in two copies. The counterfoil of the receipts along with TRC list is sent to the Telephone Department by the Postal Assistant ordinarily on the following day. According to him, the total amount received under different heads is also recorded in hand to hand receipt book daily under different heads by the Postal Assistant and the entry is verified by the Assistant Post Master at the close of the day with the help of TRC list and the hand to hand book is signed by the Assistant Post Master. He further deposed that after signatures of Assistant Post Master, hand to hand book along with the money collected is taken by the Postal Assistant to the Treasury of the Post Office. According to him acknowledgment is also taken on hand to hand book from the Treasury. The amount is deposited in the Treasury on the same day on which it is collected on the counter. 58. According to him acknowledgment is also taken on hand to hand book from the Treasury. The amount is deposited in the Treasury on the same day on which it is collected on the counter. 58. It is thus, evident that at the close of day, as per the prescribed procedure, the total amount received under different heads was required to be recorded in hand to hand receipt book daily by the Postal Assistant and the entry was required to be verified by the Assistant Post Master at the close of the day with the help of TRC list. The Assistant Post Master was also required to sign the hand to hand book prepared by the Postal Assistant. After signatures of Assistant Post Master, hand to hand book along with the money collected was required to be taken by the Postal Assistant to the Treasury of the Post Office and the acknowledgment was to be taken on hand to hand book from the Treasury by the Postal Assistant. Therefore, it cannot be imagined that the accused Sunita Gupta could embezzle the amount when every detail made by her was to be compared by the Assistant Post Master after tallying the same with TRC lists and hand to hand receipt books. The amount was also supposed to be deposited in the Treasury on the same day on which it was collected on the counter by the Postal Assistant. The Treasurer of the Post Office concerned used to prepare a head office summary daily where the cash received under all the heads was to be recorded on the basis of hand to hand summary and on the basis of actual cash received. 59. At the relevant time, accused R.K. Sood, was the Assistant Post Master, who used to verify the hand to hand receipts books and TRC lists prepared by Sunita Gupta. Accused R.K. Sood was acquitted by the learned trial court. In case there was any shortage in the amount received by accused Sunita Gupta, it should have been detected by the Assistant Post Master, R.K. Sood or by the Treasurer, who also used to maintain separate record. 60. It has come in the cross-examination of PW22 Sukh Ram Verma that he had taken into possession the receipts from the almirah of Sunita Gupta. The receipts were handed over to him by a dealing hand, whose name he did not remember. 60. It has come in the cross-examination of PW22 Sukh Ram Verma that he had taken into possession the receipts from the almirah of Sunita Gupta. The receipts were handed over to him by a dealing hand, whose name he did not remember. He ought to have remembered name of the dealing hand, when he collected the relevant documents. He admitted that on the basis of daily TRC lists, TRC schedules, TRC schedules daily and monthly were also prepared on the basis of TRC statements. He also admitted that one copy of TRC list is sent to accounts branch daily. He admitted that manual receipts are also compared by the accounts branch with the TRC lists. According to him, accounts branch and treasury branch are two separate branches. He admitted that on every TRC contains date stamp, which shows the date on which the TRC was prepared. It is round shaped showing date and name of the post office. He also admitted that in Head Post Office Solan, on some other counter, which was multi-purpose in nature, one Purnima also used to collect TRC. He categorically admitted that some of the manual receipts out of Ext. PW22/85 to Ext.PW22/337 were issued by Purnima. He also admitted that hand to hand receipt book was issued by the store, but no account was maintained by the store with regard to such hand to hand receipt book. The hand to hand receipt book is a very important document. It is not believable that no accounts were maintained by the Post Office, when more particularly, it pertains to accounts. Towards the closure of his cross-examination, he also admitted that the Treasure used to prepare the cash book deposited by the Postal Assistant in the Treasury. He did not remember if during the course of inquiry, he compared the treasury cash book with TRC and head office summary or not. It was every essential for PW22 Sukh Ram Verma to have compared the treasury cash book with TRC and head office summary. It is, thus, evident that there was almost a steal proof system the manner in which the TRC was to be collected and handed over to the Treasury. As per statement of PW22, Sukh Ram Verma, the Superintendent of Post Office also used to inspect the record of the Post Office including that of Sunita Gupta half yearly. It is, thus, evident that there was almost a steal proof system the manner in which the TRC was to be collected and handed over to the Treasury. As per statement of PW22, Sukh Ram Verma, the Superintendent of Post Office also used to inspect the record of the Post Office including that of Sunita Gupta half yearly. He had not inspected the record of Sunita Gupta, because he was deputed on inspection of some other records of different branches of the Post Office. He admitted that he deposed before the CBI that the Post Master after tallying the hand to hand receipt book, counterfoils of telephone bills and TRC lists used to sign the head office summary. The TRC lists, which were available in accounts branch, should have been stamped showing date stamp, but were not stamped in the case. 61. PW26, Naresh Kumar, who was working as Peon in the Accounts Office, testified that the TRC lists, which were being received in the office from Post Office, were being fed in the computer and thereafter the TRC lists were being kept in a store under the directions of accused Maya Ram. He had kept the TRC lists for the period from January 1999 to May 2000 in the same store of the Telephone Exchange Office. The key of store room remained with Maya Ram. However, in cross-examination, he categorically admitted that he deposed before the Police that the keys used to remain hanging on key hole in the office. According to him he asked accused Maya Ram to get shifted the store articles to some other place as the store was full of documents. Maya Ram informed him that he had already shifted the store articles to Head Office, situated at Saproon. However, no entry was made in the Head Office when the record was transferred to the Head Office. As per his own admission, he had not made any entry with regard to keeping of the record. 62. PW27, Mukesh Kumar Chauhan, was operating computer in the office of accused Maya Ram. His duty was to feed the data of TRCs advice notes and master data in the computer. The print of master data was generated from the computer by him. One of the keys used to remain with him and the other key used to remain with accused Maya Ram. His duty was to feed the data of TRCs advice notes and master data in the computer. The print of master data was generated from the computer by him. One of the keys used to remain with him and the other key used to remain with accused Maya Ram. The list of TRCs after being received from Post Office were fed in computer by him and thereafter the TRCs were kept by him on the table, which were being picked up by Peon, PW 26 Naresh Kumar, who used to keep the same in the store. TRC lists were being received in their office daily, whereas after a month, TRC schedule for the entire month was being received in their office from Post Office at the end of the month along with the cheque for the amount deposited in the Post Office during the month. In the year 1999-2000, he noticed some discrepancies in the TRC schedule and the amount being received through cheque relating to Post Office Solan. The store where TRCs were being collected was being operated by Naresh Kumar, however, it was under the overall supervision of the accused Maya Ram. The TRC record from the store was found to have been removed in the month of August 2000. He also deposed that Sunita Gupta used to come to their office almost daily in the evening and used to sit with accused Maya Ram. He has made major admission in his cross-examination that the total amount deposits shown in the TRC lists being sent by Sunita Gupta was being tallied with the amount of bills shown by the computer daily, however, there was discrepancy at the time of monthly total when the monthly TRC schedule was received from the Post office. He did not remember the months when the discrepancy in the monthly TRC schedule and the amounts shown by computer were noticed by him. He admitted that accused Maya Ram was having dual charge of TRA-1 and TRA-2. The distance between TRA-1 and TRA-2 was 3 kms. It is apparent from statement of this witness that it was PW26 Naresh Kumar, Peon, who was the custodian of the record including the TRC. 63. PW32, Kanshi Ram Kondal, was posted as Head Cashier, Solan w.e.f. 28.4.1999 till November 2000. The distance between TRA-1 and TRA-2 was 3 kms. It is apparent from statement of this witness that it was PW26 Naresh Kumar, Peon, who was the custodian of the record including the TRC. 63. PW32, Kanshi Ram Kondal, was posted as Head Cashier, Solan w.e.f. 28.4.1999 till November 2000. In cross-examination, he admitted that while taking cash from the counter clerk, he never tallied or compared the same with TRC list. He volunteered that he was not required to tally the cash with TRC list. PW32 Kanshi Ram Kondal was supposed to tally the cash with the TRC list. He did not know that head of the summary was required to be signed by the Post Master after comparing the same with hand to hand book, TRC list and TRC schedule. He never verified the details on the basis of the documents, but he only used to tally the same with description of currency notes and amounts detailed in the cheque. He was not well conversant with the hand writings, signatures and initials of accused Sunita Gupta. According to him, Sunita Gupta used to deposit cash under various heads, i.e. TRC, MO, UCR, commissions and PLI etc. He also admitted that as per the hand to hand book, Sunita Gupta used to deposit cash on account of other various heads including TRC, as she used to collect money under various heads. 64. PW48 Mahesh Sharma is also material witness. According to him, the Assistant Post Master was required to take back up of the data before deletion. The data pertaining to the period w.e.f. 1.1.2000 to August 2000 was taken as back up by the Assistant Post Master. He was also departmentally charge-sheeted in the matter. His statement has to be read with care and caution. According to him, the charge against him was that he had not back-up of the data fed in the computer at Parwanoo before it was deleted. He admitted that Grover, the then Post Master, verified the head of summary. He also admitted that in the Head Post Office, Solan, Treasury Branch was separate from the accounts branch. There were 31 sub offices under the Head Office, Solan. In those sub offices telephone bills were also collected. The TRC from said sub post offices used to come to accounts branch of Head Post office. He also admitted that in the Head Post Office, Solan, Treasury Branch was separate from the accounts branch. There were 31 sub offices under the Head Office, Solan. In those sub offices telephone bills were also collected. The TRC from said sub post offices used to come to accounts branch of Head Post office. In the accounts branch, daily schedule of the collection on the basis of TRC lists used to be made and at the end of the month. He could not say that TRC lists were kept permanently in the accounts branch. He also admitted that TRC lists prepared on the counter in the head post office were then sent to the accounts branch. He admitted that manual receipt book was issued by the counter clerk after making proper entry. Counter Clerk used to return such receipts-books to the Assistant Post Master after it was fully exhausted. New receipt book was issued after consumption of first receipt book. He admitted that Purnima also used to sit on counter No.1 of Head Post office Solan and used to collect TRC. According to him, qua computer maintenance no record was kept. It was essential to keep the computer and its data maintained in view of Section 65-B of the Indian Evidence Act. According to PW48, Mahesh Sharma, there were two computers kept at two counters. The difference, shown in head of summary account, pertained to TRC of Sunita Gupta. He had not compared TRC lists made by Purnima while making the difference in head of summary in his examination-in-chief. He should have looked into the TRC lists prepared by Purnima also, she was also having dealing with the TRC counter. 65. According to PW74, Shiv Lal, during the period January 1999 to 2000, entries in the TRC register were maintained/entered by him. These entries pertained to payment of telephone bills, security etc.. In the evening, the TRC register remained with Maya Ram and in the day time, it remained with his Officer. In cross-examination, he admitted that in the TRC register a consolidated sum was entered from the TRC list. He never compared TRC register with accompanying voucher. He used to hand over the TRC list to computer operator for making necessary entries. He did not remember any other document was prepared on the basis of TRC register. In cross-examination, he admitted that in the TRC register a consolidated sum was entered from the TRC list. He never compared TRC register with accompanying voucher. He used to hand over the TRC list to computer operator for making necessary entries. He did not remember any other document was prepared on the basis of TRC register. PW75, Bimla Chahuan, deposed that she remained Postal Assistant in GPO Solan w.e.f. May 1999 to 2003. She was working in the accounts Branch as Schedule Clerk. She used to maintain 24 schedules of different nature on the basis of vouchers received from the head office. The TRC counter was separate. Accused Sunita Gupta was working on TRC counter. She used to prepare three copies of the TRC. She was also indicted in the inquiry and the action was also taken against her. The charge against her in departmental inquiry was that she did not keep head office TRC lists in her record. She categorically admitted that amounts mentioned in the TRC Lists shown by Sunita Gupta to her used to be tallied with entries in treasury branch and accounts branch also during that period. According to her, in the TRC schedule, they used to mention the total consolidated figure of TRC of head office and sub offices. Their audit office was at Sundernagar. She did not know that any record was taken into custody by CBI from office at Sundernagar. She admitted towards end of her cross-examination that the Superintendent of Head Post Office Solan and Assistant Superintendent Head Post Office Solan used to inspect the records of every branch every six months. She volunteered that some times random checking was also carried out by the officers in each Department. PW76 Shyam Mohan Sharma, the then Assistant Superintendent, Post Office Solan, deposed that after comparison, a data table was prepared showing differences in the head office summary register and computer bill and daily list table, which was taken as loss to the Department. According to him, at the close of day, counter clerk used to prepare TRC list in duplicate, showing the collection of the day, which was to be authenticated by the Assistant Post Master. One copy of TRC list was to be sent to the Accounts Officer, TRA Section. According to him, at the close of day, counter clerk used to prepare TRC list in duplicate, showing the collection of the day, which was to be authenticated by the Assistant Post Master. One copy of TRC list was to be sent to the Accounts Officer, TRA Section. The collection of TRC was to be entered in the head office summary under different categories indicating head office, sub office and branch office. The amount of TRC was to be remitted to the TRA Department by the Accounts Office, Solan with a consolidated cheque. In addition to this, the Postal Assistant used to prepare hand to hand receipt book in which amount of TRC collected on a particular day was to be noted down and transferred to the Treasurer and was to be authenticated by the Treasurer by putting his signatures and authenticated by the Assistant Post Master. In case of issuance of manual receipt to the subscriber, manual receipt was to be prepared in duplicate with carbon. In cross-examination, he deposed that in the accounts branch, the TRC lists from branch offices and sub offices used to be received. According to him, TRC lists were not permanent record. On the basis of head office TRC lists daily schedule of TRC was to be prepared in the accounts branch. The accounts branch used to retain TRC lists for one day till evening, thereafter, cheque was to be prepared by the accounts branch and was to be sent to TRA accounts. He did not know from where the TRC lists mentioned in seizure memo, Ext.PW76/B, were recovered by him. He deposed that it might have been recovered by those persons, who made the inquiry. He admitted that before signing the head office summary, the Post Master used to tally the counterfoils with daily TRC lists and also with hand to hand book. It is, thus, evident that it was the duty of the Post Master concerned to tally the counterfoils with daily TRC lists and also with hand to hand book before signing the head office summary. 66. Dharmender Kumar Saini, who appeared as PW77, joined as Postal Assistant in Head Post Office Solan on 27.3.2000. According to him, every TRC list was bearing round Post Office stamp having time stamp and date stamp. TRC lists were recovered from the almirah. 66. Dharmender Kumar Saini, who appeared as PW77, joined as Postal Assistant in Head Post Office Solan on 27.3.2000. According to him, every TRC list was bearing round Post Office stamp having time stamp and date stamp. TRC lists were recovered from the almirah. He categorically admitted that the TRC lists mentioned by him in his examination did not bear date stamp. Thus, it has come on record, as noticed above, every TRC lists were supposed to have time and date stamp of concerned Post Office. 67. PW78, Kanshi Ram, remained posted as Assistant Post Master (Accounts) at Head Post Office, Solan from 1993 to 2003. He used to prepare cash book with the help of head office summary and branch office summaries. The Counter Assistant was required to collect the payment of subscriber bills from the subscribers. He used to tally schedule in his cash book. Once schedule is maintained for whole collection of the month, at the end of the month, the schedule is again tallied with head office cash book and is sent to AORTA, GMT Office. Along with total amount of cheque, for which the cheque was drawn, it was required to be sent to the A.O. Sunita Gupta, the Counter Assistant. Bimla Chauhan was the schedule clerk, who used to prepare the daily schedule of the entire collection. Both of them used to work under him. According to him, three copies of TRC lists were drawn by the Counter Assistant. He volunteered that it was never given on that day and the figures were taken from the Postal Assistant. In cross-examination, he categorically admitted that since 1991 till date at no point of time, the Departmental Rules for drawing three TRC lists by the Counter Assistant and sending one copy of the same to the Accounts branch were changed. He admitted that daily TRC lists were not received in the accounts branch during the period 1999, 2001 and 2002. These lists were kept in bundles and TRC schedule was prepared. Such bundles were weeded out probably after eighteen months. These bundles were preserved in case the Auditor demanded for TRC lists so that the same could be produced for verification and comparison. According to him, non-supply of TRC list by Counter Assistant to the accounts branch was not against the Rules. Such bundles were weeded out probably after eighteen months. These bundles were preserved in case the Auditor demanded for TRC lists so that the same could be produced for verification and comparison. According to him, non-supply of TRC list by Counter Assistant to the accounts branch was not against the Rules. He never made a complaint of Sunita Gupta regarding non-supply of the TRC list on the same day. He complained to the Incharge of Sunita Gupta verbally several times. What emerges from the statement of PW78 Kanshi Ram is that Bimla Chauhan was the schedule clerk. She used to prepare the daily scheduled of the entire collection after visiting the counter collection being run by the Counter Assistant. 68. PW79, Pardeep Gupta, was working as Senior TOA in the office of GMTD, Solan since 1997. He had seen TRC payment schedule for the month of September 1999 in respect of Solan Head Office. The hand writings, encircled with red pencil, on Ext. PW79/1, Ext. PW79/2, Ext.PW79/3 Ext.APW79/4 Ext.PW79/5, Ext.PW79/6, Ext.PW79/7 and Ext.PW79/8 was in the hand of accused Maya Ram. In cross-examination, he deposed that he had seen documents Ext.PW79/1 to Ext.PW79/8 at Chandigarh for the first time. He never saw these documents in his office. He was not subordinate of accused Maya Ram. He was working in different section. He was having dual charge including that of his division. He did not know in which context and for what reason accused Maya Ram made these writings on aforesaid exhibits. 69. PW80, Naresh Sood was introduced by the prosecution to identify the handwriting of accused Sunita Gupta. According to him, he remained posted as Assistant Treasurer at GPO, Solan w.e.f January 1999 to April 2000. He was well conversant with handwriting and signature of accused Sunita Gupta. He had seen her writing and signing. She used to receive cash from the subscribers of telephones and prepare TRC lists and issue receipts. He admitted in his cross-examination that he never dealt with the hand to hand book of Purnima, who used to deposit the receipts with the Treasury Branch. 70. PW81, Karan Bahadur, remained posted as Peon in TRA-1 Branch Solan from 1999 to 2000. She used to receive cash from the subscribers of telephones and prepare TRC lists and issue receipts. He admitted in his cross-examination that he never dealt with the hand to hand book of Purnima, who used to deposit the receipts with the Treasury Branch. 70. PW81, Karan Bahadur, remained posted as Peon in TRA-1 Branch Solan from 1999 to 2000. According to him, during the period January 2000 to September 2000, TRC record was not brought from Telephone Exchange to GMTD Office Saprun as he used to regularly check the store room at GMTD Office Saprun. In cross-examination, he admitted that he did not use to maintain any record/register regarding receipt of any record/register. He was the Incharge of store room in G.M. Office. 71. PW85, Kirpal Singh, deposed that he remained posted as Chief Accounts Officer in the office of G.M. Telecom, Solan w.e.f. 2001 to 2003. According to him, duty of TRA-1 was accounting of payment of the bills and duty of TRA-II was regarding the computer works of TRA, i.e. issue of bills, feeding of payment data, generation of the codes etc.. Accused Maya Ram was working in TRA-I and TRA-II. In cross-examination, he deposed that civil table is generated in the computer for making upto date entries of telephone bill numbers. When the civil table is prepared, entries in SRC record cards are automatically generated or updated. Sub ledgers are prepared only after the payment is received. Sub ledges are signed by the Chief Accounts Officer. According to him, after completion of the formalities of preparation of sub ledgers, the same are submitted to circle office. Once copy is retained in the office of Accounts Officer (Telephone Revenue). The TRC entries are reflected in the sub ledger on the basis of TRC lists which are sent by the Post Offices. A monthly scheduled is also received from the Head Post Office along with cheque. The monthly schedule along with cheque, which is received from head Office AOTRA, should be tallied and reconciled with entries in the sub ledger. Sub ledger is prepared every month. On reconciliation of the figures, the deficiency can be detected every month. The entries made in sub ledgers are checked and verified. He admitted that 106 telephones in question were not disconnected because there was no outstanding payment against them. Sub ledger is prepared every month. On reconciliation of the figures, the deficiency can be detected every month. The entries made in sub ledgers are checked and verified. He admitted that 106 telephones in question were not disconnected because there was no outstanding payment against them. He volunteered that the payment was shown to have been made in subscriber records card but at some places the amount and dates were varying from the payment. It is evident from his statement that entire process was through computers. It was a steal proof system and the same could not be manipulated. The entire data was verified every month. Statement of loss is also prepared by the Department. Sub ledger is verified and checked every month and on the basis of reconciliation of figures, the deficiency, if any, can be detected every month. It is, thus, not believable that the entries were not reconciled w.e.f. 1.1.1999 to 30.5.2000. 72. PW86, T.Joshi submitted his opinion vide Ext.PW86/11 and Ext.PW86/12. However, in his cross-examination, he admitted that the reasons Ext.PW86/13 and Ext.PW86/14 did not bear signatures of I.K. Arora. He also admitted that there was no copy of reasons prepared and signed by I.K. Arora on the file. 73. PW92, Rajesh Patwal has categorically admitted that during his investigation, he came across the fact that one Prunima was also collecting TRC during 1999-2000. He could not say that most of the manual receipts found mention in Ext.PW77/A to Ext.PW77/B were in the hand of Purnima and Baldev. He did not remember whether he checked the treasury cash book of treasury record. He admitted that during investigation, he came to know that Postal Assistant after preparing the TRC lists sends it to the accounts branch of the Postal Department where TRC schedule is prepared. He also admitted that accused Sunita Gupta had no relation or connection with the loading of new versions and deletion of previous data at the time of loading of new software. He did not remember the name of the engineer or the date on which he called him to retrieve data from the computers used by Sunita Gupta. He admitted that no such TRC list was available in the court file. He did not remember the name of the engineer or the date on which he called him to retrieve data from the computers used by Sunita Gupta. He admitted that no such TRC list was available in the court file. He also admitted that it had come in his investigation that from 8.1.2000 to 18.7.2000, as per Ext.PW48/10, the computer was in complete working order and there was no indication of the fact that any data was deleted prior to 18.7.2000. The alleged misappropriation of the funds was alleged to have been made w.e.f. 1.1.1999 to May 2000. He also admitted that it had not come in his investigation that Sunita Gupta defalcated the records or committed theft of the records from the Head Post Office. He admitted that it had also come in his investigation that Post Master signs the head office summary after tallying the hand to hand book, counter foil of telephone bills and TRC lists and the office who tallies the TRC list, counterfoils and hand to hand book with Head office summary can easily find out the difference or variation in figures, if there is any. He also admitted that JTOs were also posted in computer Section AOTRA-I. He admitted that after handing over and taking over the charge, the person who has taken over the charge becomes custodian of all records. He did not verify from the store room as to what documents were lying there. He did not remember whether computers were checked by the engineer on 13.6.2002 or at some earlier date. He admitted that 106 telephone numbers pertaining to the case were not disconnected as the bills were shown as paid in the records of Telephone Department. It had come in his investigation while recording statement of PW22 Sukh Ram Verma that R.K. Sood, the then Assistant Post Master, ML Tuli, Post Master, Neeraj Negi, Postal Assistant, R.C. Vashist Assistant Post Master, Brij Lal, Assistant Post Master, Purnima Singh, Bimla Chauhan, Hans Raj and Parmod Singh were found responsible for lapses in performing their duties relating to TRC. However, according to him, they were not found to have any connection with the misappropriation. 74. However, according to him, they were not found to have any connection with the misappropriation. 74. As noticed above, print outs, Ext.PW84/1 qua details of daily list table showing amount of telephone bills, demand notes showing amount of computer bill, demand notes and other bills deposited on a particular date for the period, i.e. 1.1.1999 to 31.5.2000 at Solan Post Office and Ext.PW84/2, i.e. detail of computer bill payments date wise along with number of vouchers for the period January 1999 to May 2000 at Solan Post Office relied upon by the prosecution were taken out from the data cartridge, Ext.PW87/A. The Court has already noticed that the recovery of data cartridge, Ext.PW87/A on the basis of disclosure statement of accused Maya Ram, Ext. PW91/B is doubtful. The prosecution has not even proved the printouts taken from data cartridge Ext.PW87/A in accordance with Section 65-B of the Indian Evidence Act. There is no evidence on the record, whether the computer in which data was downloaded from the so called data cartridge, Ext.PW87/A was in working condition or was being used in day to day course. There is a detailed procedure prescribed under Section 65-B of the Indian Evidence Act, the manner in which the electronic record is to be proved. Besides this, there was no time and date stamp of the Post Office on these documents, to prove their authenticity. 75 According to Section 65-B (1) of the Indian Evidence Act, 1972, notwithstanding anything contained in the Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. 76. 76. As per Section 65-B(2), following conditions are required to be complied with in respect of a computer output:- (a) The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) Throughout the material part of the said period, the computer was operating properly or, if not; then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. As per Section 65-B(3), where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) By a combination of computers operating over that period; or (b) By different computers operating in succession over that period; or (c) By different combinations of computers operating in succession over that period; or (d) In any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, All the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. 77. 77. As per Section 65-B(4), In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say- (a) Identifying the electronic record containing the statement and describing the manner in which it was produced; (b) Giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) Dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, And purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. 78. As per Section 65-B(5)- (a) Information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) Whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) A computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. 79. The data cartridge, Ext.PW87/A was seized on the basis of disclosure statement of accused Maya Ram. The same was produced before the officers, as discussed hereinabove. The data was generated on 15.11.2000. But, the fact of the matter is that the data was handed over to the CBI on 22.8.2002. Therefore, possibility of the data being fudged between 15.11.2000 to 22.8.2002 cannot be ruled out. The prosecution has also not proved that the data in the computers used by accused Maya Ram was fed regularly. The data was generated on 15.11.2000. But, the fact of the matter is that the data was handed over to the CBI on 22.8.2002. Therefore, possibility of the data being fudged between 15.11.2000 to 22.8.2002 cannot be ruled out. The prosecution has also not proved that the data in the computers used by accused Maya Ram was fed regularly. 80. PW91 Narotam Parshad categorically admitted that PW84 R. Venkateshan had handed over to him three hard copies of data, which was downloaded from cartridge Ext.PW87/A. However, no seizure memo was prepared qua taking into possession copies of such data. The seizure memo or observation form was also not prepared when copies of data were handed over to various functionaries including PW84 R. Venkateshan, who was successor of accused Maya Ram in his office. He had taken the charge of accused Maya Ram on 1.9.2000. He was supposed to be custodian of the records. According to PW92 Rajesh Patwal, no data was deleted till 18.7.2000. 81. Learned Single Judge of this Court in Rattan Chand and another vs. State of H.P., 2002 Cri.L.J. 1598 has held that unless disclosure statement is proved, consequential recovery at instance of accused is not covered within framework of Section 27. Learned Single Judge has held as under:- “39. The disclosure statement Ext. PE is stated to have been made by accused Som Datt in the presence of same set of witnesses, namely, Rattan Chand and Tilak Raj and the consequential recovery of 'Danda' is also stated to have been made in their presence vide memo. Ext. PF. The only witness of this disclosure statement and recovery PW-7 Tilak Raj has denied making of the disclosure statement Ext. PE by accused Som Datt. However, he has admitted that the 'Danda' Ext. P2 is similar to a 'Danda' which was produced by accused Som Datt to the police in his presence. Unless the disclosure statement is proved, the consequential recovery at the instance of the accused is not covered within the frame work of Section 27 of the Indian Evidence Act. To be admissible, the discovery of the fact must be preceded by a disclosure statement or information given by the accused which has not been proved in view of the statement of PW-7 Tilak Raj who has denied making of any disclosure statement by accused Som Datt to the police as claimed by the prosecution.” 82. To be admissible, the discovery of the fact must be preceded by a disclosure statement or information given by the accused which has not been proved in view of the statement of PW-7 Tilak Raj who has denied making of any disclosure statement by accused Som Datt to the police as claimed by the prosecution.” 82. What is evidentiary value of electronic records has been succinctly dealt with by the Division Bench of Delhi High Court in State vs. Mohd. Afzal and ors., 107(2003) Delhi Law Times 385 (DB) as under:- “276. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Sub-clause "d" of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry cannot be moved to the court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print out. Sub-section (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Sub-section (2). Thus compliance with Subsection (1) and (2) of Section 65B is enough to make admissible and prove electronic records. This conclusion flows out, even from the language of Sub-section (4). Subsection (4) allows the proof of the conditions set out in Sub-section (2) by means of a certificate issued by the person described in Sub-section 4 and certifying contents in the manner set out in the sub-section. The sub-section makes admissible an electronic record when certified that the contents of a computer print out are generated by a computer satisfying the conditions of Sub-section 1, the certificate being signed by the person described therein. Thus, Sub-section (4) provides for an alternative method to prove electronic record and not the only method to prove electronic record. 277. The sub-section makes admissible an electronic record when certified that the contents of a computer print out are generated by a computer satisfying the conditions of Sub-section 1, the certificate being signed by the person described therein. Thus, Sub-section (4) provides for an alternative method to prove electronic record and not the only method to prove electronic record. 277. Whether Section 65B casts a positive mandate on the person relying upon electronic record, to adduce affirmative evidence that at all material time the computer was working properly when information was being fed in it, and whether on facts, the computer generated call details have to be ignored due to alleged malfunctioning? 278. The last few years of the 20th Century saw rapid strides in the field of information and technology. The expanding horizon of science and technology threw new challenges for the ones who had to deal with proof of facts in disputes where advanced techniques in technology was used and brought in aid. Storage, processing and transmission of date on magnetic and silicon medium became cost effective and easy to handle. Conventional means of records and data processing became out dated. Law had to respond and gallop with the technical advancement. He who sleeps when the sun rises, misses the beauty of the dawn. Law did not sleep when the dawn of Information and Technology broke on the horizon. World over, statutes were enacted. Rules relating to admissibility of electronic evidence and it's proof were incorporated. 279. Did the law relating to admissibility and proof of electronic record have a positive mandate to be satisfied by the one who relies upon electronic record? The positive mandate being to establish positively that there was no malfunctioning of the equipment processing the operations at the relevant time, to which the record relates. 280. In England this positive mandate was statutorily enacted and the prosecution had to show by positive and affirmative evidence that it was safe to rely upon the document produced by a computer from out of its memory. The Police & Criminal Evidence Act, 1984 was enacted. 280. In England this positive mandate was statutorily enacted and the prosecution had to show by positive and affirmative evidence that it was safe to rely upon the document produced by a computer from out of its memory. The Police & Criminal Evidence Act, 1984 was enacted. But, while interpreting Section 69 of the said Act, the courts took a practical approach and gave an interpretation where computer generated record could be proved by a statement, made by an employee unfamiliar with the precise details of the operation of the computer, that the print out was retrieved from the computer memory and the computer was not malfunctioning. Section 69 reads as under: "(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown - (a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer. (b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of it contents; and (c) that any relevant conditions specified in rules of Court under Sub-section (2) below are satisfied. (2) Provision may be made by the rules of Court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules shall be provided in such form and at such time as may be so required." 281. In R.V. Shepherd, 1993 A.C. 380. Lord Griffiths, dealing with the defense argument held:- "The principal argument for the defendant starts with the proposition that the store detective was not a person occupying a responsible position in relation to the operation of the computer within the meaning of paragraph 8(d) of Schedule 3 to the Act and, therefore, was not qualified to sign a certificate for the purpose of providing proof of the matters contained in Section 69(a). This I accept. Although the store detective understood the operation of the computer and cold speak of its reliability she had no responsibility for its operation. This I accept. Although the store detective understood the operation of the computer and cold speak of its reliability she had no responsibility for its operation. I cannot however, accept the next step in the defendant's argument which is that oral evidence is only acceptable if given by a person who is qualified to sign the certificate. The defendant does not go so far as to submit that evidence must be given by a computer expert but insists that it must be someone who has responsibility for the operation of the computer; either the operator or someone with managerial responsibility for the operation of the computer. Documents produced by computers are an increasingly common feature of all business and more and more people are becoming familiar with their uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly." 282. Statement by the witness that when the computer was working they had no trouble with operation of central computer was held sufficient in discharge of the affirmative burden. 283. In R v. Ana Marcolino,(CA "Crim. Div"), following the dictum of Lord Griffiths in R.V. Shepherd the evidence of the witness proving electronic record was analysed step wise which analyses is illuminative as to how the issue was dealt with. Lord Justice Henry posed the question: Does the evidence given by Mr. Slade satisfy the test in Shepherd, 1993 AC 380? The answer came as follows: 1). he had been employed by Vodaphone for over four years as the risk supervisor and his duties included identifying fraudulently used accounts and liaising with the police. This account had been used fraudulently. Lord Justice Henry posed the question: Does the evidence given by Mr. Slade satisfy the test in Shepherd, 1993 AC 380? The answer came as follows: 1). he had been employed by Vodaphone for over four years as the risk supervisor and his duties included identifying fraudulently used accounts and liaising with the police. This account had been used fraudulently. 2) He had retrieved from the computer the records relating to this mobile telephone and produced from those records the itemized account for the relevant period. To do so, he had accessed the billing records for that period. 3) he was not familiar with the precise details of the operations of the computer because he had not designed it. However, he had general knowledge of the system. He had no reason to believe that the computer records were inaccurate because of improper use. 4) Vodaphone is continuously audited by the DTI. No complaint has been made as to the accuracy of their records. Vodaphone has their own quality assurance department which constantly monitored the system. 5) he asserted that the computer was working properly at the relevant time. In support of that assertion he relied upon the following facts : a) There was no record of any malfunction. Had their been, it would have been drawn to his attention by the billing department. In any event, the computer had ancillary equipment which would have taken over, had there been any failure or malfunction of the primary systems. b) If there had been any malfunction, the billing records would be classed as 'in suspension'; those records were not. c) The billing record itself is made without human intervention, although it is triggered by the use of a mobile phone. The system runs a series of internal checks as to accuracy and function before the call is made and the subsequent detail recorded. If there is any malfunction the records are put into suspension. The records of these calls had not been suspended. d) The records in relation to malfunction were kept by persons who could not reasonably be expected to have any personal recollection of them. These persons had a duty to report any malfunction. None had been reported. Miss Calder submitted that the evidence of external audit is irrelevant. The records of these calls had not been suspended. d) The records in relation to malfunction were kept by persons who could not reasonably be expected to have any personal recollection of them. These persons had a duty to report any malfunction. None had been reported. Miss Calder submitted that the evidence of external audit is irrelevant. In our judgment, the jury was entitled to take into account that these records were produced by a large company providing a substantial public service the subject of licensing and external audit by the DTI. Such evidence goes directly as to whether there has been improper use. It is the view of this Court that the totality of the evidence as set out above satisfies the test propounded by Lord Griffiths. Mr. Slade was sufficiently familiar with the workings of the computer. The records are designed to reveal malfunction. None was revealed. 284. The conviction was found to be safe and the appeal was dismissed. 285. In DPP v. Me. Kewon, (1997) 1 Criminal Appeal 155, Lord Hoffman, applying Section 69 of the Police and Criminal Evidence Act, 1984 in relation to the inaccuracy in the time display in the computer print out, held:- "I shall for the moment assume that the inaccuracy in the time display meant that "the computer not operating properly". The question is therefore whether that was "such as to affect the production of the document or the accuracy of its contents". If the words are read literally, it did. The document said that the first test had occurred at 23.00 GMT when it was in fact 00.13 BST. As to one hour, the discrepancy is merely as to the way in which the time was expressed. 23.00 GMT is the same time as 00.00 BST. But the remaining 13 minutes cannot, I think, be dismissed as de minimis. The inaccuracy of the time reading therefore affected the accuracy of a part of the contents of the document. In my view, however, the paragraph was not intended to be read in such a literal fashion. "The production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. "The production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. But a rule which excluded an otherwise accurate document on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of the rule. The first thing to notice is that Section 69 is concerned solely with the proper operation and functioning of a computer. A computer is a device for storing, processing and retrieving information. It receives information from, for example, signals down a telephone line, strokes on a keyboard or (in this case) a device for Chemical analysis of gas, and it stores and processes that information. If the information received by the computer was inaccurate (for example, if the operator keyed in the wrong name) then the information retrieved from the computer in the form of a statement will likewise be inaccurate. Computer experts have colourful phrases in which to express this axiom. But Section 69 is not in the least concerned with the accuracy of the information supplied to the computer. If the gas analyser of the Intoximeter is not functioning properly and gives an inaccurate signal which the computer faithfully reproduces, Section 69 does not affect the admissibility of the statement. The same is true if the operator keys in the wrong name. Neither of these errors is concerned with the proper operation or functioning of the computer. The purpose of Section 69, therefore, is a relatively modest one. It does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true or not is a question of weight for the justices or jury. All that Section 69 requires as a condition of the admissibility of a computer-generated statement is positive evidence that the computer has properly processed, stored and reproduced whatever information it received. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. The language of Section 69(1) recognises that a computer may be malfunctioning in a way which is not relevant to the purpose of the exclusionary rule. It cannot therefore be argued that any malfunction is sufficient to cast doubt upon the capacity of the computer to process information correctly. The legislature clearly refused to accept so extreme a proposition. What, then, was contemplated as the distinction between a relevant and an irrelevant malfunction? It seems to me that there is only one possible answer to that question. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieves the information used to generate the statement tendered in evidence. Other malfunctions do not matter. It follows that the words "not such as to affect the production of the document or the accuracy of its contents" must be read subject to the overall qualification that the paragraph is referring to those aspects of the document or its contents which are material to the accuracy of the statement tendered in evidence." 286. The Law Commission in England reviewed the law relating to computer generated evidence. It summed up the major problem posed for the rules of evidence by computer output in the words of Steyn, J.:- "Often the only record of the transaction, which nobody can be expected to remember, will be in the memory of a computer. ... if computer output cannot relatively readily be used as evidence in criminal case, much crime (and notably offences involving dishonesty) would in practice be immune from prosecution. On the other hand, computers are not infallible. They do occasionally malfunction. Software systems often have "bugs". -- Realistically, therefore, computers must be regarded as imperfect devices." 287. It noted that given the extensive use of computers, computer evidence could not be unnecessarily imp leaded, while giving due weight to the fallibility of computers. The Law Commission noted that Section 69 had enacted a law which was unsatisfactory for 5 reasons:- "First, Section 69 fails to address the major causes of inaccuracy in computer evidence. As Professor Tapper has pointed out, "most computer error is either immediately detectable or results from error in the data entered into the machine". The Law Commission noted that Section 69 had enacted a law which was unsatisfactory for 5 reasons:- "First, Section 69 fails to address the major causes of inaccuracy in computer evidence. As Professor Tapper has pointed out, "most computer error is either immediately detectable or results from error in the data entered into the machine". Secondly, advances in computer technology make it increasingly difficult to comply with Section 69: it is becoming "increasingly impractical to examine (and therefore certify) all the intricacies of computer operation". These problems existed even before networking became common. A third problem lies in the difficulties confronting the recipient of a computer-produced document who wishes to tender it in evidence: the recipient may be in no position to satisfy the court about the operation of the computer. It may well be that the recipient's opponent is better placed to do this. Fourthly, it is illogical that Section 69 applies where the document is tendered in evidence, but not where it is used by an expert in arriving at his or her conclusions, nor where a witness uses it to refresh his or her memory. If it is safe to admit evidence which relies on and incorporates the output from the computer, it is hard to see why that output should not itself be admissible; and conversely, if it is not safe to admit the output, it can hardly be safe for a witness to rely on it." 288. The Commission recommended deletion of Section 69, the opinion was: "Where a party sought to rely on the presumption, it would not need to lead evidence that the computer was working properly on the occasion in question unless there was evidence that it may not have been - in which case the party would have to prove that it was (beyond reasonable doubt in the case of the prosecution, and on the balance of probabilities in the case of the defense), The principal has been applied o such devices as speedometers and traffic lights, and in the consultation paper we saw no reason why it should not apply to computers. 289. 289. We may note that Section 69 of the Police and Criminal Evidence Act, 1984 has since been repealed and the common law presumption :- "in the absence of evidence to the contrary the courts will presume that mechanical instruments were in order at the material time", operates with full force. 290. Experience has shown to us that development in computer networking, access, control, monitoring and systems security are increasingly making it difficult for computer errors to go undetected. Most computer errors are immediately detected or resultant error in the date is immediately recorded. In a court of law it would be impractical to examine the intricacies of computer functioning and operations. To put it in the words of the Law Commission report in England:- "Determined defense lawyers can and do cross-examine the prosecution's computer expert at great length. The complexity of modern systems makes it relatively easy to establish a reasonable doubt in a juror's mind as to whether the computer was operating properly. Bearing in mind the very technical nature of computers, the chances of this happening with greater frequency in future are fairly high. We are concerned about smoke-screens being raised by cross-examination which focuses in general terms on the fallibility of computers rather than the reliability of the particular evidence. The absence of a presumption that the computer is working means that it is relatively easy to raise a smoke-screen." 291. The law as it stands enacted in India does not have a provision analogous to Section 69 of the Police and Criminal Evidence Act, 1984 in England. The conditions which require to be satisfied are the ones set out in Subsection (2) of Section 65B. The conditions, as noted above are:- a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used; b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer; c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy; d) Information reproduced is such s is fed into the computer in the ordinary course of activity." 292. In effect, substantially, Section 65B of the Indian Evidence Act and Section 69 of the Act in England have same effect. 293. Thus, in the context of Section 65B(2)(c) the condition that throughout the material part of the period to which the computer operations related, the computer was operating properly has to be complied with. However, this compliance would be on the principle laid down in Shepherd (supra) and as applied in Ana Marcolino (supra) and Me. Kewon (supra). Thus in our opinion, is the only practical way to deal with computer generated evidence unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of system or operating failure or interpolation. Such challenge has to be established by the challenger. Generic and theoretical doubts by way of smoke screen have to be ignored. 83. Their Lordships of Hon’ble Supreme Court in Rambilas and others vs. State of M.P., 1997 Supreme Court Cases (Cri.) 1222 have held that mere recovery of certain incriminating articles at the instance of the accused cannot form the basis of conviction. 84 The conspiracy has not been proved by the prosecution. Merely that one of the witnesses, PW26 Naresh Kumar, who was custodian of the store, had seen accused Maya Ram giving Rs.10,000/- to accused Sunita Gupta will not prove conspiracy. He had not given any date, month and year when he saw accused Maya Ram giving Rs.10,000/- to accused Sunita Gupta. The version of PW27 Mukesh Kumar Chauhan that Sunita Gupta used to come to his office almost daily in the evening and used to sit with accused Maya Ram will also not prove conspiracy. The Court has already noticed that few of the witnesses relied upon by the prosecution have already been indicted during the course of departmental inquiry. Statements of PW26, Naresh Kumar and PW27, Mukesh Kumar Chauhan, did not prove conspiracy. It is not believable that a woman could visit the office of accused Maya Ram daily in the evening. Offices of accused Maya Ram and Sunita Gupta were at a reasonable distance. In the instant case, there is no evidence to establish that the accused Maya Ram had entered into any criminal conspiracy with accused Suita Gupta. There was neither any agreement between the parties nor any design to commit the offence. Offices of accused Maya Ram and Sunita Gupta were at a reasonable distance. In the instant case, there is no evidence to establish that the accused Maya Ram had entered into any criminal conspiracy with accused Suita Gupta. There was neither any agreement between the parties nor any design to commit the offence. The prosecution has failed to prove that the offence was committed in pursuance of an agreement between the parties to the alleged conspiracy. 85. Their Lordships of Hon’ble Supreme Court in Yash Pal Mital vs. The State of Punjab, AIR 1977 Supreme Court 2433 have laid down following principles to prove conspiracy:- “9. The offence of criminal conspiracy under S. 120-A is a distinct offence introduced for the first time in 1913 in Chap. V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes mis-fire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under S. 120-A is brought out pithily by this Court in E. G. Barsay v. The State of Bombay (1962) 2 SCR 195 at p. 229 : ( AIR 1961 SC 1762 at p. 1778) thus: "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under S. 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable". We are in respectful agreement with the above observations with regard to the offence of criminal conspiracy.” 86. Their Lordships of Hon’ble Supreme Court in State (Delhi Admn.) vs. C. Shukla, AIR 1980 Supreme Court 1382 have culled out following principles to prove conspiracy:- “8. Before we proceed further, we might indicate that it is well settled that in order to prove a criminal conspiracy which is punishable under section 12-B of the Indian Penal Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. After having gone through the entire evidence, with the able assistance of Mr. Rajinder Singh, learned counsel for A-1 and of learned counsel for the State, we are unable to find any acceptable evidence connecting either of the appellants with the existence of any conspiracy. We are further of the opinion that even taking the main parts of the prosecution case at their face value no connection has been proved with the destruction of the film and the two appellants. The prosecution has, of course, produced some witnesses to show the existence of the alleged conspiracy or some sort of connection of the appellants with the destruction of the film but that evidence, as we shall show, falls short of the standard of proof required in a criminal case. We relise that the prosecution was seriously handicapped because the investigation started only after the Janata Government came into power in March 1977, that is to say, about a year and a half after the offences in question were allegedly committed, by when naturally much of the evidence would have been lost and even some of the important witnesses examined by the prosecution had turned hostile and refused to support its case. Despite these difficulties, the prosecution has to discharge its ends of proving the case against the accused beyond reasonable doubt. We, therefore, propose to deal only with that part of the evidence led by the prosecution which has been relied upon to prove some sort of a connection of the appellants with the alleged destruction of the film.” 87. The Division Bench of this Court in Hari Ram vs. State of Himachal Pradesh, 1982 Cri. L.J. 294 has held that the gist of the offence of conspiracy is the agreement. In a case of conspiracy when there is no direct evidence, inferences from the proved facts and circumstances to a large extent form the basis of the court’s conclusion. The Division Bench of this Court in Hari Ram vs. State of Himachal Pradesh, 1982 Cri. L.J. 294 has held that the gist of the offence of conspiracy is the agreement. In a case of conspiracy when there is no direct evidence, inferences from the proved facts and circumstances to a large extent form the basis of the court’s conclusion. The Division Bench has held as under:- “12. Similarly there is no evidence whatever to support the charge under S.120-B, I.P.C. against the accused. With respect to this charge we have only to say that the criminal conspiracy as defined in S.120-A, I.P.C. is an agreement by two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. The gist of this offence is, therefore, the agreement. Direct proof of the conspiracy is of course seldom available. In a case of conspiracy when there is no direct evidence as in the instant case, inferences from the proved facts and circumstances to a large extent form the basis of the Court's conclusion. In dealing with such cases based on circumstantial evidence, however, an inference of guilt need only be drawn when the circumstances are such as to be incapable of being reasonably explained on any other hypothesis than the guilt of the accused. The only circumstance as appears against the accused and as already stated is that his thumb impression is found to exist on the actual payee's receipt which is found to be forged. This circumstance stands explained by the accused. The explanation offered by the accused is quite reasonable. In the absence of any other circumstantial evidence, it is not possible to infer from this circumstance alone that the accused had entered into any conspiracy with Pratap Singh. It may be remarked that keeping in view the positions which the accused and Pratap Singh were holding in the police of the Board, it looks quite unnatural and two convincing that Pratap Singh would have reposed my confidence in the accused with respect to his evil design. It may be remarked that keeping in view the positions which the accused and Pratap Singh were holding in the police of the Board, it looks quite unnatural and two convincing that Pratap Singh would have reposed my confidence in the accused with respect to his evil design. The more reasonable view appears to be that Pratap Singh would not take the accused into confidence especially when he could have obtained the thumb mark of any labourer or other person on the receipts which he intended to forge and it was not necessary for him to hire the services of the accused for that purpose. In the circumstances there is no case made out for interfering with the order of acquittal recorded by the learned Sessions Judge in respect of the charge under S.120-B, I.P.C.” 88. Their Lordships of Hon’ble Supreme Court in State of U.P. vs. Sukhbasi and others, AIR 1985 Supreme Court 1224 have held that criminal conspiracy must be proved. Their Lordships have held as under:- 7. The High Court has with meticulous care analyzed the entire evidence to support its judgment of acquittal. We shall first take up the appeal against the respondent Ashok Kumar who had been found guilty by the learned Sessions Judge of a charge under S. 120B of the Indian Penal Code. The gravamen of the charge against him was that he in agreement with the accused Sukhbasi. Ram Sanehi and Ram Shanker forged the slip (Exh. Ka 42) purporting to be a note of Kirpal Singh Munim. It is the prosecution case that with the help of the same the three accused were successful in getting an entry into the house of the deceased Bhagwat Dayal. The slip was alleged to have been found by PW 31 beneath the pillow of the deceased in his bedroom sometime after the nightfall of December 26, 1970 i.e. long after the police arrived at the scene. To substantiate a charge under S. 120B of the Code, there must be a criminal conspiracy at least between two or more persons. There is not an iota of evidence to establish that the three accused prior to the commission of the offences had conspired together with the accused Ashok Kumar and got forged from him the ruqqa (Exh. Ka 42) in the name of Kirpal Singh Munim to secure an entry into the house of the deceased. There is not an iota of evidence to establish that the three accused prior to the commission of the offences had conspired together with the accused Ashok Kumar and got forged from him the ruqqa (Exh. Ka 42) in the name of Kirpal Singh Munim to secure an entry into the house of the deceased. There is nothing to show that the accused Ashok Kumar had been associating with the other accused. Although the accused Ashok Kumar had admitted that the parcha (Exh. Ka 42) was in his handwriting, but his version is that when he was arrested on January 2, 1971 the document was got written by him by PW 31 by use of force. The High Court rightly observed that it is difficult to believe that the Investigating Officer did not even touch the cot of the deceased for about 8 to 10 hours in order to find out if there was any clue. Again, the two accused Sukhbasi and Ram Sanehi did not stand in need of any recommendatory letter when they were working at the house of the deceased for about a month and were therefore very well known to him personally. Further, the deceased in all probability would know the handwriting of Munim Kirpal Singh and he would at once have detected the forgery. In view of all this, learned counsel for the appellant fairly stated that he could not support the appeal against the respondent Ashok Kumar and accordingly the State appeal against his acquittal by the High Court is dismissed. 89. Their Lordships of Hon’ble Supreme Court in P.K. Narayanan vs. State of Kerala, (1995) 1 Supreme Court Cases 142 have held that the circumstances must establish that the offence was committed in pursuance of an agreement between parties to the alleged conspiracy. Mere suspicion and surmises or inferences unsupported by cogent evidence are not sufficient. Their Lordships have held as under:- “10. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Their Lordships have held as under:- “10. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation.” 90. Their Lordships of Hon’ble Supreme Court in State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru, (2005) 11 Supreme Court Cases 600 have explained the entire gamut of expression “conspiracy” and scope of Section 65-B of the Indian Evidence Act 1872 as under:- “85. As conspiracy is the primary charge against the accused, we shall now advert to the law of conspiracy its definition, essential features and proof. Section 120-A of IPC defines criminal conspiracy. It says: "120-A. when two or more persons agree to do or cause to be done (1) an illegal act or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Section 120-B prescribes the punishment to be imposed on a party to a criminal conspiracy. As pointed out by Subba Rao, J in Major E.G. Barsay Vs. Section 120-B prescribes the punishment to be imposed on a party to a criminal conspiracy. As pointed out by Subba Rao, J in Major E.G. Barsay Vs. State of Bombay ( AIR 1961 SC 1762 ): "the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts". 86. Under section 43 of the IPC, an act would be illegal if it is an offence or if it is prohibited by law. Section 120-A and 120-B were brought on the statute book by way of amendment to IPC in 1913. The Statement of Objects and Reasons to the amending Act reveals that the underlying purpose was to make a mere agreement to do an illegal act or an act which is not illegal by illegal means punishable under law. This definition is almost similar to the definition of conspiracy, which we find in Halsbury's Laws of England. The definition given therein is: "58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express and in part implied_.. and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be". 87. In America, the concept of criminal conspiracy is no different. In American Jurisprudence, 2nd Edn., Vol.16, Page 129, the following definition of conspiracy is given: "A conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful ... The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy." 89. The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy." 89. In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120-A & B) were "designed to assimilate the provisions of the Indian Penal Code to those of the English Law ..." Thus, Sections 120-A & B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. Even if an overt act does not take place pursuant to the illegal agreement, the offence of conspiracy would still be attracted. The passages from Russell on Crimes, the House of Lords decision in Quinn vs. Leathem (1901 AC 495), and the address of Willes, J to the Jury in Mulcahy Vs. Queen (1868 3 HL 306) are often quoted in the decisions of this Court. The passage in Russell on Crimes referred to by Jagannatha Shetty, J in Kehar Singh's case [1988 (3) SCC at page 731] is quite apposite: "The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough" This passage brings out the legal position succinctly. 91. In Yashpal Mittal vs. State of Punjab [ 1977 (4) SCC 540 ], Goswami, J, speaking for a three-Judge Bench analysed the legal position relating to criminal conspiracy. At pages 610-611, the learned Judge observed that "the very agreement, the concert or league is the ingredient of the offence." and that "it is not necessary that all the conspirators must know each and every detail of the conspiracy". It was then observed that "there must be unity of object or purpose but there may be plurality of means, sometimes even unknown to one another, amongst the conspirators." 93. In State of H.P. Vs. Krishan Lal Pradhan [1987 (2) SCC page 17], it was reiterated that every one of the conspirators need not take active part in the commission of each and every one of the conspiratorial acts. 94. In the case of State Vs. In State of H.P. Vs. Krishan Lal Pradhan [1987 (2) SCC page 17], it was reiterated that every one of the conspirators need not take active part in the commission of each and every one of the conspiratorial acts. 94. In the case of State Vs. Nalini [ 1999 (5) SCC 253 ], S.S.M. Quadri, J, after a survey of case law made the following pertinent observations: (at paragraph 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences. 95. There is exhaustive reference to various cases by Arijit Pasayat, J, in Mohd. Khalid Vs. State of W.B. [ 2002 (7) SCC 334 ]. In Mohammed Usman Vs. State of Maharashatra [ 1981 (2) SCC 443 ] it was observed that the agreement amongst the conspirators can be inferred by necessary implication. 96. There is one particular observation made by Jagannadha Shetty in Kehar Singh's (supra) case which needs to be explained. The learned Judge observed: "It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. 96. There is one particular observation made by Jagannadha Shetty in Kehar Singh's (supra) case which needs to be explained. The learned Judge observed: "It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient". The expression 'physical manifestation' seems to be the phraseology used in the Article referred to by the learned Judge. However, the said expression shall not be equated to 'overt act' which is a different concept. As rightly stated by the learned senior counsel, Mr. Gopal Subramanium, the phrase has reference to the manifestation of the agreement itself, such as by way of meetings and communications. 97. Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. (Per Wadhwa, J. in Nalini's case (supra) at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible." G.N. Ray, J. in Tanibeert Pankaj Kumar [ 1997 (7) SCC 156 ], observed that this Court should not allow the suspicion to take the place of legal proof. 98. As pointed out by Fazal Ali, J, in V.C. Shukla vs. State [ 1980 (2) SCC 665 ], " in most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence." In this context, the observations in the case Noor Mohammad Yusuf Momin vs. State of Maharashtra ( AIR 1971 SC 885 ) are worth nothing: "In most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material." 99. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material." 99. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused. [vide Esher Singh vs. State of A.P., [ 2004 (11) SCC 585 ]. 101. One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. K.J. Shetty, J, pointed out in Kehar Singh's case that: "The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict." 150. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. It may be that the certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65. 151. The learned senior counsel Mr. Shanti Bhushan then contended that the witnesses examined were not technical persons acquainted with the functioning of the computers, nor they do have personal knowledge of the details stored in the servers of the computers. We do not find substance in this argument. Both the witnesses were responsible officials of the concerned Companies who deposed to the fact that they were the printouts obtained from the computer records. In fact the evidence of PW-35 shows that he is fairly familiar with the computer system and its output. If there was some questioning vis-a-vis specific details or specific suggestion of fabrication of printouts, it would have been obligatory on the part of the prosecution to call a technical expert directly in the know of things. The following observations of House of Lords in the case of R Vs. Shepard [1993 AC 380] are quite apposite: "The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. Shepard [1993 AC 380] are quite apposite: "The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly." Such a view was expressed even in the face of a more stringent provision in Section 69 of the Police and Criminal Act, 1984 in U.K. casting a positive obligation on the part of the prosecution to lead evidence in respect of proof of the computer record. We agree with the submission of Mr. Gopal Subramanium that the burden of prosecution under the Indian Law cannot be said to be higher than what was laid down in R Vs. Shepard (supra).” 91 The prosecution has failed to prove that the computer from which the printouts were taken out was used regularly to store or process information for the purpose of any activities regularly carried on w.e.f. 1.1.1999 to May 2000 by the person having lawful control over the use of the computer. It has also not been established by the prosecution that the computer was operating properly. The responsible officials/officers have not given any certificate as per Section 65-B(4) of the Indian Evidence Act to prove data generated from the computers. 92. Learned trial court has mechanically read the oral as well as documentary evidence without taking into consideration the principles of “Appreciation of Evidence”. The prosecution is required to prove the case against the accused persons beyond reasonable doubt, which it has failed to prove in the present case. 93 There are major contradictions, inconsistencies, exaggerations and embellishment in the statements of the material witnesses of the prosecution. Learned trial court has overlooked major contradictions in the statements of the prosecution witnesses. The prosecution has failed to prove its case against the accused. 93 There are major contradictions, inconsistencies, exaggerations and embellishment in the statements of the material witnesses of the prosecution. Learned trial court has overlooked major contradictions in the statements of the prosecution witnesses. The prosecution has failed to prove its case against the accused. 94 In view of the observations and analysis made hereinabove, the appeal is allowed and the judgment, dated, 30.4.2011 rendered by the learned Sessions Judge (Special Judge), Shimla, in Sessions Trial No. 13-S/7 of 2003, under Sections 409, 477, 477-A, 201 and 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988 is set aside. The accused persons are acquitted of the charges framed against them. The fine amount, if any deposited by the accused persons are ordered to be refunded to them. The bails bonds are ordered to be discharged. Pending application(s), if any, also stands disposed of. No order as to costs.