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Himachal Pradesh High Court · body

2014 DIGILAW 804 (HP)

State of H. P. v. Sukh Ram

2014-06-27

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the judgment, rendered on 30th June, 2007, by the learned Special Judge, Solan, District Solan, H.P., in Sessions Trial No.6-S/7 of 2004, whereby the respondents have been acquitted of the offences charged. 2. All the accused persons rendered duties as public servants under Arki Sub Division from 1983 of 1986. Accused Sukh Ram (since retired) was Gram Sewak, Navgaon, accused Balbir Singh was Block Development Officer, Kunihar Block, accused Arun Kumar was Manager, UCO Bank, Darlaghat, accused Krishan Kant Verma was clerk in the same bank, accused Pat Ram (since deceased) was Assistant Development Officer, (Veterinary doctor), Kunihar, Accused Rajinder Parshad Sharma was posted as Vaterniary doctor in Veterinary Hospital, Darlaghat. 3. The case of the prosecution against the accused persons is that the State of Himachal Pradesh through Block Development Officer had been disbursing loans with subsidy to those people, who were living below the poverty line enabling them to purchase goats, sheep, buffalo for development of land, for running of shops to enable them to uplift above the poverty line. In Kunihar Block during the period, 1983 to 1986, a large number of people are alleged to have provided loan with subsidy for the purposes aforesaid. 4. In the year, 1987, two source reports one emanating from S.D.M., Arki and another from D.C., Solan were received by the S.P. Vigilance, Shimla with regard to mis-appropriation of the loan amount by the officials concerned which was shown to have been disbursed to the beneficiaries by forging their signatures and thumb impressions on the applications for loan and receipts acknowledging the amounts. On receipt of these source reports, an order for registration of a case was made by S.P. Vigilance and FIR was registered on 9.1.1988 under Sections 409, 420, 120-B, 468, IPC read with Section 5(2) of the Prevention of Corruption Act against the accused persons. 5. The specific allegations qua the accused are that they hatched a conspiracy by forging the applications of the beneficiaries, namely, Vidya Devi, Savitri Devi, Gurditoo, Sohan Lal, Badri, Punoo, Chotta Ram, Kadaroo and Mast Ram and had shown disbursement of various sums of loan on subsidy in their favour, whereas no such loan on subsidy was disbursed in favour of any of the persons aforesaid. Further investigation unraveled that the accused had even come to forge the signatures and thumb impressions of the aforesaid persons on the receipts and vouchers etc. On the basis of comparison of the handwriting specimen and thumb impressions of the beneficiaries with the signatures/thumb impressions existing on the applications, it was opined by the expert concerned that the signatures/thumb impressions on the applications, receipts and vouchers were not in the hands of the persons by whom they were purportedly authored. Furthermore, the thumb marks on the application form of some beneficiaries were also not found to be of these persons and were found to be that of the one of the accused Sukh Ram. Some of the beneficiaries admitted their signatures on some documents, yet their testimonies are unbelievable as the subsidy could not be released in their favour without disbursement of loan. Thumb impression on the application of Vidya Devi was found not of her but that of Sukh Ram. In case of Sohan lal, he was found paid subsidy without any disbursement of loan. All these documents were found to have been prepared and signed by accused Sukh Ram, Arun Kumar and Balbir Singh in connivance with each other and forged the signatures and thumb impressions of the beneficiaries on the loan applications and other documents. The accused Rajinder Parshad is alleged to have passed and tagged the animals which were never purchased. 6. On completion of the investigation, into the offences, allegedly committed by the accused, report under Section 173 Cr.P.C. was prepared and filed in the Court. 7. The accused persons were charged for their having committed offences punishable under Sections 409, 420, 468, 471, and 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988 by the learned trial Court to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined many witnesses. On closure of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded in which they pleaded innocence and claimed false implication. Consequently, the learned trial Court on appraisal of evidence adduced before it had come to acquit the accused. 8. On closure of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded in which they pleaded innocence and claimed false implication. Consequently, the learned trial Court on appraisal of evidence adduced before it had come to acquit the accused. 8. The learned Additional Advocate General has contended that there is firm and fortificatory connectivity of the accused, in theirs having committed offence the alleged comprised in the fact of the opinion of the handwriting expert comprised in Ex. PW20/C-1 to Ex.PW20/C-5 and its revealing that the specimen signatures/handwritings of the beneficiaries are not matching with their questioned signatures/handwritings. Statements of the beneficiaries, who have categorically deposed the fact of theirs having not applied for loan, received disbursement of sums of money purportedly shown under receipts, vouchers etc., is, also a circumstance which tells upon the fact that in consequence of the accused persons having forged the signatures of the beneficiaries, they had come to do so, for the utilization of the sums, comprised in the receipts, for their personal gains, hence, committed offences of embezzlement as well as cheating. 9. The learned counsel for the accused/respondents contended that the judgment of acquittal rendered, in, favour of the accused/respondents in appeal before this Court does not necessitate interference. The learned trial Court had come to acquit the accused on the strength of the evidence of the handwriting expert comprised, in, his report Ex.PW20/C-1 to Ex.PW20/C-5 being inadmissible in evidence, hence, carrying no probative worth, on, the score of the judgment of the Hon’ble Apex Court in Sukhvinder Singh versus State of Punjab, (1994)5 SCC, 152, wherein, the Hon’ble Apex Court has voiced the view that where the specimen of handwriting are procured under the directions of the Tehsildar before whom no inquiry/trial was pending, the procurement of the specimen signatures for comparison with the questioned/admitted handwriting of the accused carries no probative worth. Consequently, the learned trial Court on applying the judgment to the facts of the instant case, where the specimen handwritings/thumb impressions of the accused were procured/collected under the directions of the Tehsildar, before whom no inquiry/trial was pending, rendered the specimen handwritings/thumb impressions to be unworthy of being compared with the admitted/questioned writings/thumb impressions of the accused. Consequently, the learned trial Court on applying the judgment to the facts of the instant case, where the specimen handwritings/thumb impressions of the accused were procured/collected under the directions of the Tehsildar, before whom no inquiry/trial was pending, rendered the specimen handwritings/thumb impressions to be unworthy of being compared with the admitted/questioned writings/thumb impressions of the accused. Consequently, the opinion rendered on specimen on comparison with the admitted signatures by Questioned document Examiner was concluded to be carrying no probative worth. 10. The deposition of the beneficiaries is barred categorically and forthrightly that they did not receive the amount as purportedly shown to have received by them in receipts by the beneficiaries. Their depositions comprise good substantive and best evidence qua the facts deposed by them and tellingly pronounce upon the guilt of the accused. 11. PW-1 Smt. Vidya Devi, in her examination-in-chief has deposed that she had never applied for any loan and application Mark-A does not bear her thumb impression. She also deposed that she had not received any amount from the bank and receipt Mark-B does not bear her signature. In cross-examination by the defence, she has denied the suggestion that she had obtained the loan as well as subsidy for running a gharat. She has deposed that she has no bank account. 12. PW-2 Shri Gurdittu Ram has deposed that accused Sukh Ram called him to village Nagaon on the pretext of disbursement of loan for purchase of sheep. When he went there, accused Sukh Ram was present with BDO and Veterinary doctor. He was told that he would be supplied sheep. His signatures were obtained on certain papers. Tags were also put on the sheep but they were not given to him. The owner of the sheep asked for the money on which he was told by accused Sukh Ram that money would be given by the Bank. He was asked to come after 2-3 days. After 4-5 days, he was paid Rs.1200/- by accused Sukh Ram at village Navgaon. He also obtained his signatures on the receipt. But he denied his signatures on documents Mark C to Mark-D. He has stated that his specimen signatures comprised in Ex.PW2/A-1 to Ex.PW2/A-3. In cross-examination by the defence he has denied the suggestion he was paid Rs.3000/-. He has also denied the suggestion that Ex. DA and Ex. DB bear his signatures. He also obtained his signatures on the receipt. But he denied his signatures on documents Mark C to Mark-D. He has stated that his specimen signatures comprised in Ex.PW2/A-1 to Ex.PW2/A-3. In cross-examination by the defence he has denied the suggestion he was paid Rs.3000/-. He has also denied the suggestion that Ex. DA and Ex. DB bear his signatures. He has also denied the suggestion that the tags were placed on the animals after they sold. He has also denied the suggestion that he was paid Rs.1500/- in the bank in presence of Sohan Lal. 13. PW-3 Sohan Lal in his examination-in-chief has stated that he was called by accused Sukh Ram to Navgaon where forms were filled and his signatures were obtained. He has deposed that he had applied for the subsidy and received a sum of Rs.2500/- and his signatures were not obtained on any revenue stamps. He was told by the bank Manager that he would not give any loan to him except Rs.2500/-. He has deposed that withdrawal form Mark -F does not bear his signature. He has denied the suggestion in his crossexamination by the defence that documents Ex. DC, Ex. DD and Ex. DE bears his signatures. He has further deposed that he has signed only one form. He has deposed that he was told by the Gram Sewak that he would get a loan of Rs.3000/- and subsidy of Rs.3000/-, in total Rs.6000/-. He has denied the suggestion that the sheep were handed over to him. 14. PW-4 Shri Badri Ram has deposed that accused Sukh Ram told him that he would be given loan for purchase of sheep. He went to Navgaon and signed on application Ex.PW4/A. He was asked to come to the Bank and forms were filled in, on which his signatures were obtained. He was called to Chamakhri Pool where Gaddies had come with sheep from chamba. He selected about 19-20 sheep. He has deposed that doctor examined these sheep and put the tags on them. The owner of the sheep told him that he would make the payment on the receipt of the money. He was asked to come next day. Next day he went to the Bank along with Gram Sewak and the owner of the sheep as also Sohan Lal, PW-3. The owner of the sheep told him that he would make the payment on the receipt of the money. He was asked to come next day. Next day he went to the Bank along with Gram Sewak and the owner of the sheep as also Sohan Lal, PW-3. The Manager of the Bank Shri Arun Sood refused to grant loan to them and agreed to pay subsidy only. He was paid Rs.2500/- whereas the loan was probably for Rs. 6000/-. He, in his cross-examination by the defence, has denied the suggestion that he received the loan amount also. He has deposed that he had made a complaint to the D.C. about non delivery of sheep to them. Thereafter he was called by the police after about 3-4 months. He has denied the suggestion that he had not made any complaint to the D.C. He has also denied the suggestion that the sheep were delivered to him. 15. PW-8 Smt. Savitri Devi in her deposition has deposed that she is illiterate and cannot sign. She used to put her thumb impression on requirement. She has deposed that she has never applied for loan from the Block and never visited the UCO Bank, Darlaghat. She has further deposed that she did not know Sukh Ram, Gram Sewak. Documents Ex.PW8/A-1 to Ex.PW8/A-10 were not singed by her. In cross-examination, she has deposed that she did not get any money from Bank, Darlaghat and no notice was received by her from the bank for payment of loan. 16. PW-13 Sh. Sarwan has deposed that he used to rear goats and sheep and during winter season, he used to bring his animals to Chamakhari Pul near Bhararighat for grazing. He knew accused Sukh Ram present in Court. He was Gram Sewak. 20-22 years ago, accused Sukh Ram asked him as to whether he is interested in selling goats and sheep. Then he came with the beneficiaries and doctor. He has deposed that he told the accused Sukh Ram that he would pass the animals on the receipt of the payment. He has further deposed that he did not receive any payment, therefore, he did not deliver any goats and sheep to the beneficiaries. 17. PW-1 Vidya Devi has specifically denied the factum of having taken the loan under the alleged scheme and has also denied her thumb impression (Q100). He has further deposed that he did not receive any payment, therefore, he did not deliver any goats and sheep to the beneficiaries. 17. PW-1 Vidya Devi has specifically denied the factum of having taken the loan under the alleged scheme and has also denied her thumb impression (Q100). As per the report of the Director of Finger Print Bureau, Ex.PW25/J-1, the alleged thumb impression of Smt. Vidya Devi on loan application, Mark A, on comparison was found that of Sukh Ram. PW2 Gurdittu Ram though stated that his signatures were obtained on certain papers but at the same time he has denied the delivery of sheep to him despite the tags having put on them by the doctor. This fact of his deposition is also supported by the deposition of PW-13 Sarwan wherein he has stated that accused along with doctor came to him at Chamakhari Pul and he told that the animals will be given by him on receipt of payment. But neither payment was made to him nor goats and sheep were delivered by him to the beneficiaries. Loan application, Ex. DA (Mark-E) of PW-2 Gurdittu shows grant of total loan to the tune of Rs.6000/- (Principal Rs.3000/- and subsidy Rs.3000/-). The deposition of PW-2 Gurdittu is that he was paid only 1200/-. Suggestion was put to this witness in his cross-examination by the learned defence counsel that a sum of Rs.3000/- paid to him to which he has denied. The suggestion as put by the accused leads to the inference that the accused admitted the factum of entire loan having not paid to this witness. He has also denied signatures on loan application, Ex. DA and Receipt DB, whereby, a sum of Rs.1500/- has been shown to be paid to PW-2 Gurdittu as margin money which receipt was duly acknowledged by accused Arun Kumar by putting his signatures. PW-3 Sohan Lal has also deposed that a sum of Rs.2500/- was received by him and he was told that he would not give any loan except this amount. His deposition is that he was called to Navgaon where forms were filled in and he was told that he would call lateron where the sheep were to be passed. PW-3 Sohan Lal has also deposed that a sum of Rs.2500/- was received by him and he was told that he would not give any loan except this amount. His deposition is that he was called to Navgaon where forms were filled in and he was told that he would call lateron where the sheep were to be passed. He is categorical in his cross-examination that he was told by the Gram Sewak (accused Sukh Ram) that he would get a loan for Rs.3000/- and subsidy of Rs.3000/-, in total Rs.6000/-. Suggestion was put to this witness in his cross-examination by the learned defence counsel that he had selected the sheep to be purchased and tags were put on them by the doctor after their examination to which he has admitted. This version of PW-3 Sohan Lal, was also admitted by PW-13 Sarwan, the owner of the animals. The loan application (Ex.DD) of PW-3 Sohan Lal also speaks that the loan was for Rs.3000/- and subsidy was for Rs.3000/-, which means a total sum of Rs.6000/- was to be paid to him. Receipt regarding payment of margin money is Ex.DE which shows payment of Rs. 1500/- to PW-3 Sohan Lal but PW-3 Sohan Lal has denied payment of such amount to him by the accused. This witness also disputed his signature on this receipt as having not been signed by him. He is categoric in his entire deposition before the Court that only a sum of Rs. 2500/- was paid to me and the Bank Manager had denied the payment of loan amount to him. He is also categoric that sheep were examined by the doctor and tags were put on them, however, the same were not handed over to him by the owner as no payment was made to him by the accused. PW-4 Badri Ram in his deposition has categorically stated that he had selected 19-20 sheep. After examination of the sheep by the doctor tags were put on them but they were not handed over to him as not payment was made by the accused to the owner. They were called to the bank when the bank manager (Accused Arun) refused to pay the loan and agreed to pay subsidy only. He was categoric that only Rs.2500/- was paid to him out of the total loan of Rs.6000/-. 18. They were called to the bank when the bank manager (Accused Arun) refused to pay the loan and agreed to pay subsidy only. He was categoric that only Rs.2500/- was paid to him out of the total loan of Rs.6000/-. 18. From the report of Director, Finger Print Bureau, Ex.PW25/J-1, it is manifest that the above said beneficiaries Vidya Devi never applied for loan and subsidy thereof and no amounts had been received by her. The above report of the Director of Finger Print Bureau, Ex.PW25/J-1 as also the reports of GEQD, Ex.PW20/C-1 to Ex.PW20/C-5 manifestly points towards the fact of the loan documents having been forged as also the amount thereto having been embezzled. 18. Learned trial Court has disbelieved the opinion evidence of PW-20 Mohinder Singh, Handwriting Expert, given in the form of his testimony in the Court and his written opinion Ext. PW20/C-1 to Ex.PW20/C-5. The reason given by the learned trial Court is that specimen signatures of the beneficiaries had been taken before a Tehsildar who did not have the authority to enquire into or try the offence, hence, as mandated by the law laid down by the Hon’ble Supreme Court, in, the aforesaid judgment, such specimen signatures are required to be excluded from evidence and when such specimen signatures are so excluded, report of Handwriting Expert and, obviously, then, his opinion, as testified in the Court, become immaterial or of no probative worth. Learned trial Court has supported its view by a judgment of Hon’ble Supreme Court in Sukhvinder Singh and others Vs. State of Punjab, 1994 SCC (Cri) 1376. 19. Learned counsel, representing respondent Sukh Ram, also relies upon the aforesaid judgment of the Supreme Court as also a judgment of a Division Bench of this court in State of H.P. Vs. Laje Ram and others, 2011 (2) Him L.R. (DB) 597, wherein relying upon the aforesaid judgment of the Supreme Court, opinion of the Handwriting Expert, with regard to the disputed signatures of the accused, has been excluded from the evidence, on the ground that signatures of the accused had been obtained before an Executive Magistrate, who did not have the authority to enquire into or try the case. 20. 20. Both the aforesaid judgments, upon which reliance has been placed, i.e. judgment of the Supreme Court as also the judgment of a Division Bench of this Court, are distinguishable, both on facts and law. On facts, the judgments are distinguishable, because in the case decided by the Hon’ble Supreme Court, specimen signatures of the accused had been taken involuntarily or under the dictation of the Tehsildar. However, in the present case, the specimen signatures and thumb impressions of the accused and witnesses have been given by them voluntarily, hence, not under the dictation of the Tehsildar. Concomitantly, hence, even if, he was not having any authority to inquire into the matter or to try the case, the procurement of the specimen signatures/thumb impression of the accused and the witnesses for comparison with the purported forged signatures as also the thumb impressions, did not have any element or trace of involuntarilyness, as such, to the considered mind of this Court, they were credible and probative pieces of evidence and did not necessitate theirs being excluded. Also then the opinion rendered by the handwriting expert/finger print expert on comparison of the specimen signatures/thumb impressions of the accused/witnesses with the questioned signatures/thumb impressions of the beneficiaries, as also, of the accused, was to be construed to be probative piece of evidence or the best evidence. Hence, for reiteration, in the present case, preponderantly when the specimen signatures/thumb impressions of the aforesaid beneficiaries, as also, the accused were taken voluntarily before the Executive Magistrate and expert opinion thereon has been rendered, the rendition of expert opinion on both specimen signatures/thumb impressions of each of the aforesaid falls within the parameters of scientific expert evidence which has to be revered. 21. No other submission has been made before us. 22. As regards charge of criminal conspiracy, there is nothing on record, indicating that respondents Balbir Singh, in his capacity as BDO, Arun Kumar Sood, Branch Manager, Krishan Kant Verma, Clerk, and Rajinder Parshad Sharma, Veterinary doctor acted in league or actively connived with respondent Sukh Ram, in the matter of submission of applications for loan in the names of above named witnesses and some other persons to the BDO. Plea of respondent Balbir Singh that he sanctioned the loans, because the applications were verified by respondent Sukh Ram, Gram Sewak, working under him, cannot be said to be improbable, especially when there is no evidence suggestive of the alleged conspiracy. So is the case with respect to the plea of respondent Arun Kumar Sood, who urges that he released the loan amounts because of the sanctioning of loan by Balbir Singh, BDO and that he disbursed the loans after the purported loanees were duly identified before him by accused Sukh Ram. 23. As a result of above discussion, we partly allow the State appeal, set aside the judgment of acquittal passed by the learned trial Court, so far as it pertains to respondent Sukh Ram and hold him guilty of forging loan applications as also other related documents of the beneficiaries for the purpose of cheating, punishable under Section 468 IPC and also for the offence of using the aforesaid forged applications as genuine, punishable under Section 471 IPC. 19. Convict Sukh Ram to be heard on quantum of sentence on 10/07/2014, on which date he be produced before this Court.