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Himachal Pradesh High Court · body

2014 DIGILAW 805 (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.5-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 Santosh Kumar was peon in the same bank and accused Pat Ram (since deceased) was Assistant Development Officer, (Veterinary doctor), Kunihar. 3. The case of the prosecution against the accused persons is that the State of Himachal Pradesh, through, the 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 their living standard and bringing them above the poverty line. In Kunihar Block, during the period, 1983 to 1986, a, large number of people are alleged to have been 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 application 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, Gandhi Ram, Ganpat, Smt. Shankroo, Prem Lal, Mahantoo, Sant Ram, Balak Ram, Chotta Ram, Paras Ram, Kirpa Ram, Krishni, Briz Lal, Sundroo, Nikoo and Chajju 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. Kirpa Ram, though a beneficiary, admitted having received the subsidy, yet, his testimony is unbelievable as the subsidy could not be released in his favour without disbursement of loan. The thumb impressions on the application of Krishani Devi was discovered to be not in her hands, but that of Sukh Ram, besides in the case of Briz Lal, he was also found paid subsidy without any disbursement of loan. Sundroo claimed to be illiterate and denied having signed on the application. However, the Examiner of questioned documents had not given any opinion whether it was signed by accused Sukh Ram or any other person. In respect of Nikku, it was found that no loan was disbursed to Nikku son of Shiv Dayal but papers had been prepared in the name of Nikku son of Sh. Shiv Dayal, resident of Village Chakker, where no such person was found residing. Whereas there was one Nikku, son of Ram Dayal, who had died on 2.1.1987. The amount of loan, alleged to have been mis-appropriated by accused Arun Kumar, the then Bank Manager. In case of Chhajju Ram, the thumb impressions on the application and connected papers were also found that of accused Sukh Ram. 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 467, 468, 471, 420, 409, 120-B of the Indian Penal Code and Section 13(2)(d) 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. 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. The learned Additional Advocate General has contended that there is firm and fortificatory connectivity of the accused, in theirs having committed the offences, alleged, comprised in the fact of the opinion of the handwriting expert comprised in Ex. PW24/C-1 to Ex.PW24/C-4 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.PW24/C-1 to Ex.PW24/C-4 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 opinion rendered on specimen signatures/handwritings on comparison with the admitted signatures/thumb impressions 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 Gandhi Ram in categorical terms had deposed that he never applied for loan as also no payment thereof was received by him. He has deposed to have given his specimen signatures to the police before the Tehsildar, Arki comprised in Ex. P-1 to Ex. P-3. PW- 24 Shri Mohinder Singh, Deputy Government Examiner of Questioned Documents, has deposed that the purported specimen handwritings/signatures of Gandhi Ram are S-10 to S-12 comprised in Ex.P1 to ExP-3. As per his opinion in Ex.PW24/C-3, the person, who wrote S-10 to S-12, did not write the blue enclosed signatures similarly stamped and marked Q4, Q5, 10A, Q10B, Q10/C and Q87 to Q89. Ex.PW13/C-1 is the purported loan application of Gandhi Ram. It bears questioned signatures (Q-4), which, as per the report of the GEQD, were not of Gandhi Ram. Similar is the situation with respect to Ex.PW13/A-1. As per the report of GEQD, the questioned signature (Q-5) did not match with his admitted specimen handwritings/signatures. Further, the withdrawal form, Ex.PW24/A-3, which bears the questioned signatures (Q87 to Q89) of Gandhi Ram also did not tally with the specimen signatures of Gandhi Ram, as per the report of the GEQD. 12. PW-3 Balak Ram has also denied to have received any loan amount or subsidy at the instance of the accused. He has also denied to have signed any receipt or to have received any amount. He has deposed to have given his specimen handwritings/signatures Ex.P-4 to P-6 to the police before the Tehsildar. His specimen of handwritings/signatures were stamped and marked as S25 to S27. As per the report, Ex.PW24/C-3 given by PW-24, Mohinder Singh, GEQD, the person, who wrote the red enclosed signatures stamped and marked S25 to S27 did not write the blue enclosed signatures similarly stamped and marked Q30, Q100 to Q102. Ex. His specimen of handwritings/signatures were stamped and marked as S25 to S27. As per the report, Ex.PW24/C-3 given by PW-24, Mohinder Singh, GEQD, the person, who wrote the red enclosed signatures stamped and marked S25 to S27 did not write the blue enclosed signatures similarly stamped and marked Q30, Q100 to Q102. Ex. PW13/A-6 is the subsidy receipt bearing the questioned signature (Q-30) of Balak Ram, which, as per the report of the GEQD, is not the signature of Balak Ram. Ex.PW24/A-28 is the withdrawal form which also bears the questioned signature of Balak Ram and the same did not tally with the specimen signature of Balak Ram. 13. PW-5 Sant Ram has also deposed that he has not applied for loan for running a karyana shop and no payment was received by him. He has deposed to have given his handwriting/signature specimen Ex.P-7 to P-9 before the Tehsildar to the police. PW-24 Mohinder Singh has deposed that specimen handwritings/signature of Sant Ram are S22 to S24 comprised in Ex.P-7 to P-9. As per his opinion, the person, who wrote the red enclosed signatures stamped and marked S22 to S24 did not write the blue enclosed signatures similarly stamped and marked Q23, Q25 and Q96 to Q98. Ex.PW9/A-20 and Ex.PW9/A-26 are the loan applications which bore questioned signatures (Q23 and Q25) of Sant Ram and the same as per the report of the GEQD did not match with the specimen signatures/handwritings of Sant Ram. 14. PW-2 Mahantoo and PW-4 Shankroo Devi, both have stated in categorical terms that they had never taken any loan and no documents thereof had been signed by them. PW-7 Chhangu Ram, though has stated that he was paid Rs.800/-, as also, some cereals etc. had given to him by accused Sukh Ram yet had denied the factum of his having taken loan or any documents having signed/thumb impressed relating to it by him. PW-8 Fateh Mohammad had also deposed that accused used to come to his house to procure proforma bills of manyari. He is deposed to have issued bills Ex.PW8/A-1 to Ex.PW8/A-3 in the name of Gandhi Ram at the instance of the accused Sukh Ram. Accused Sukh Ram is stated to have told him that somebody would come to take the delivery of items of the bill and the payment thereof would be made at that time only but none had come. 15. Accused Sukh Ram is stated to have told him that somebody would come to take the delivery of items of the bill and the payment thereof would be made at that time only but none had come. 15. PW-6 Chhote Ram has deposed that he had not taken any loan for the orchard. He had admitted his specimen handwritings/signatures having been taken by the police comprised in Ex.P-10 to P-12. He has also denied the suggestion of the defence that he had taken any loan for horticulture. The specimen signatures of this witness are stamped and marked as S-28 to S-30 comprised in Exts.P-10 to P-12. As per the report of the GEQD, the person, who wrote the red enclosed signatures stamped and marked S-28 to S-30, did not write the blue enclosed signatures similarly stamped and marked Q31 to Q33 and Q82 to Q-84. Ex. PW13/A-5 is the loan application which bears the questioned signatures (Q-31) of Chotta Ram and Ex.PW13/A-7 is the receipt vide which a sum of Rs.750/- had been shown to be paid to Chhota Ram and it bears the questioned signatures (Q32 and Q33) of Chhota Ram. As per the report of the GEQD, these documents were not signed by Chhota Ram, as such, the aforesaid version of Chhota Ram that he had never applied for any loan or not having received any amount stands corroborated by the report of the GEQD. 16. Furthermore, as per the report of the Director, Finger Print Bureau, Phillaur, comprised in Ex.PW25/J-1, the questioned thumb impressions of the beneficiaries i.e. Q-49, Q66, Q-67, Q-100, Q-5 to Q-7, Q13-A to Q13-C, Q-14, Q-17 to Q-22, Q-25 to Q-27, Q-29, Q-32, Q-33, Q-35 to Q-41, Q-48A to Q-48C, Q-53, Q-54, Q-54B, Q-54C, Q-60 and Q-60B, on the questioned documents are not of the beneficiaries yet are that of Sukh Ram. Receipt Ex.PW18/B shows that the amount was received by Dayalu but as per the report, the thumb impressions are that of Sukh Ram. A sum of Rs.750/- has been shown to be received by Smt. Shankroo Devi vide receipt Ex.PW24/A-6 by putting her thumb impressions (Q-5 and Q-6) but as per the report of Director, Finger Print Bureau, yet the same are that of Sukh Ram. A sum of Rs.750/- has been shown to be received by Smt. Shankroo Devi vide receipt Ex.PW24/A-6 by putting her thumb impressions (Q-5 and Q-6) but as per the report of Director, Finger Print Bureau, yet the same are that of Sukh Ram. Similar is the case with the loan documents of Changu Ram which are Mark-D, personal loan application, Mark-C, hypothecation deed, Mark-E agreement relating to term loan and another application for loan under the scheme in question, Ex.PW24/A-41, which bears his questioned thumb impressions comprised Q-14, Q-17 to Q-22, Q-25 to Q-27, Q-29, Q-32, Q-33, Q-35 to Q-40, respectively. As per the report of the Director, Finger Print Bureau, these thumb impressions on the questioned documents on comparison having been found to be of Sukh Ram. Receipt Ex.PW13/A-8 showing payment of Rs.1000/- to Paras Ram under his thumb impressions Q-53 and Q-54 yet the same as per the report were found that of Sukh Ram. This receipt was also countersigned by accused Arun Kumar. Moreover, the withdrawal form Ex.PW24/A-21 bearing the thumb impressions Q-54B and Q-54- C, are also not found that of Paras Ram but are found that of accused Sukh Ram. A payment of Rs.1000/- has been shown to be made to Smt. Krishani Devi under her thumb impressions Q-59 and Q-60 but the same on comparison were found that of accused Sukh Ram. Furthermore, the thumb impressions on withdrawal form Ex.PW24/A-30, of Smt. Krishani Devi, on comparison were found that of accused Sukh Ram. 17. From the report of Director, Finger Print Bureau, Ex.PW25/J-1, it is manifest that the above said beneficiaries never applied for loan and subsidy thereof and no amounts had been received by them. They never signed or thumb impressed the receipts whereby the amount has been shown to be paid to them. The above report of the Director of Finger Print Bureau, Ex.PW25/J-1 as also the reports of GEQD, Ex.PW24/C-1 to Ex.PW24/C-4 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-24 Mohinder Singh, Handwriting Expert, given in the form of his testimony in the Court and written opinion Ext. PW24/C-3. 18. Learned trial Court has disbelieved the opinion evidence of PW-24 Mohinder Singh, Handwriting Expert, given in the form of his testimony in the Court and written opinion Ext. PW24/C-3. 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. 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. 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 respondent Balbir Singh, in his capacity as BDO, Arun Kumar Sood, Branch Manager and Santosh Kumar, peon 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 two 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. 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. 24. Convict Sukh Ram to be heard on quantum of sentence on 10/07/2014 on which date he be produced before this Court.