JUDGMENT Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment of conviction dated 14th September, 2005 passed by the learned Special Judge, CBI, Guwahati, Assam in Special Case No. 109/2004, convicting the accused/appellant under Sections 420/468/471 read with Section 467 IPC and Section 13(2)read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. While acquitting him of the offences under Sections 120B/477A IPC on benefit of doubt, he has been sentenced to undergo rigorous imprisonment for 2(two) years with fine of Rs. 2,000/- and in default, simple imprisonment for 1 (one) month for the offence under Section 420 IPC; rigorous imprisonment for 2(two) years with fine of Rs. 2,000/- and in default, simple imprisonment for 1 (one) month for the offence under Section 468 IPC; rigorous imprisonment for 1(one) year with fine of Rs. 1,000/- and in default, simple imprisonment for 15(fifteen) days for the offence under Section 471 IPC read with Section 467 IPC and rigorous imprisonment for 2(two) years with fine of Rs. 2,000/- and in default, simple imprisonment for 1 (one) month for the offence under Section 13(2)read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. All the sentences were to run concurrently. However, the aforesaid sentence was suspended and the accused/appellant was allowed to remain on previous bail vide order dated 7th November, 2005 passed by this Court in Misc. Case No. 3331/2005. It was alleged that the appellant alongwith 4(four) others entered into a criminal conspiracy to commit various offences including the offence of cheating and in pursuant to such conspiracy, the appellant in his capacity as Telecom Office Assistant (TOA) prepared false pay bills showing recovery of house building advance for the period from September, 1994 to November, 1994, but he failed to credit the amount towards the fund of Office and he also did not make entries of the same in the House Building Advance Recovery Register. It was also alleged that he alongwith other 4(four) accused persons entered into a criminal conspiracy to commit various offences including the offences of forgery and cheating and in pursuant to which, they brought into existence some bills of various natures and making use of them as genuine, got them passed and in the process defrauded the Telecom Department, Nagaon for an amount of Rs. 1,86,351/-. 2. 1,86,351/-. 2. On the basis of the information received, the then Superintendent of Police, CBI registered a case and ordered the Inspector, CBI, Guwahati to carry out the necessary investigation. Investigation having been carried out and upon obtaining the required sanction from the competent authority, charge-sheet was submitted under Sections 120B/420/468/471/477A IPC and also Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused/appellant and other 4(four) accused persons. 3. The prosecution case as stated in the charge-sheet dated 17th December, 1996 was that during 1994-95, the accused/appellant alongwith others entered into a criminal conspiracy and defrauded the Telecom Department. There was also allegation of making false entries in the pay bills and thus, receiving excess payment to the tune of Rs. 2,361/- and Rs. 5,081/- for the period from September, 1994 to November, 1994 and from December, 1994 to April, 1995, respectively. It was also alleged that the accused/appellant was involved in conspiracy alongwith others towards defrauding the Telecom Department by falsely drawing overtime allowance bills to the tune of Rs. 1,37,435/- showing such drawal against 23 (twenty-three) persons working in the Office of the TDE, Nagaon and SDO(T), Nagaon during the period from October, 1993 to March, 1995. It was alleged that the persons against whom OTA bills were prepared have never performed any such overtime duty. On the basis of the charge-sheet, charges were framed against the accused/appellant and 4(four) accused persons under Sections 120B/420/477A IPC and Section 13(2)read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. On the other hand, charges under Sections 468/471 IPC were also framed against the accused/appellant and 2(two) others. Charges were read over to the accused persons and they having pleaded not guilty and claimed to be tried, trial started. 4. During trial, the prosecution examined 23(twenty-three) witnesses as PWs, including the handwriting expert (PW-21) and the Investigating Officer (PW-22). The statements of the accused persons were also recorded under Section 313 Cr.P.C. Their defence was that of denial. However, they did not adduce any defence evidence. 4. During trial, the prosecution examined 23(twenty-three) witnesses as PWs, including the handwriting expert (PW-21) and the Investigating Officer (PW-22). The statements of the accused persons were also recorded under Section 313 Cr.P.C. Their defence was that of denial. However, they did not adduce any defence evidence. The learned trial Court formulating the following points for decision having arrived at the decision that the accused/appellant had committed the aforesaid offence and having imposed the sentence referred to above, he has preferred this appeal:-- "(1) Whether during the period between 1994 and 1995, A-1, A-2, A-3 and A-4 at Nagaon, entered into criminal conspiracies to commit various misdeeds and offences including the offences of cheating and forgery. (2) Whether during 1993-95, A-5 at Nagaon, entered into criminal conspiracies with A-1, A-2, A-3 and A-4 to do various misdeeds and offences including the offences of cheating and forgery. (3) Whether during 1994-95, A-1, A-2, A-3 and A-4 cheated District Telecom Office, Nagaon of an amount to the tune of Rs. 1,86,351/-. (4) Whether during the same time and place, A-1, A-2 and A-5 used those documents as genuine as well, knowing those documents to be forged and fake ones. (5) Whether during the same and place, A-1, A-2, A-3 and A-4 and A-5 falsified books of accounts. (6) Whether during the same time and place, all the accused persons obtained pecuniary advantages to them and others, on abusing their official positions." 5. I have heard Mr. P. Kataki, learned counsel for the accused/appellant and have also heard Mr. P.N. Choudhury, learned Sr. Retainer Counsel, CBI. I have also perused the entire materials on record. 6. Mr. Kataki, learned counsel for the appellant submits that the conviction solely being based on the evidence of the handwriting expert (PW-21) without any corroborative evidence, the conviction is liable to be interfered with. Referring to the evidence adduced by the PWs, he submits that there being no direct or indirect attribution against the accused/appellant of preparing the false OTA bills, the learned trial Court could not have drawn the preference of presumption and on placing reliance on the opinion of the handwriting expert. In this connection, he has placed reliance on the decision of this Court in Subash Chandra Sharma v. State of Assam & Ors. In this connection, he has placed reliance on the decision of this Court in Subash Chandra Sharma v. State of Assam & Ors. reported in 2003 (2) GLT 567 and in Hiteshwar Borah v. Central Bureau of Investigation reported in 2010 (4) GLT 517. In both the decisions, it has been emphasized the handwriting evidence being only an opinion evidence cannot take place of the substantive evidence. It has further been held that the evidence of handwriting expert being merely an opinion evidence, cannot become the basis for conviction in absence of any corroboration. 7. The learned trial Court discussing the evidence on record while holding that the evidence on record are simply insufficient to hold that the accused/appellant had made forged entries in the documents or that he had defrauded the Telecom Department or that the other accused persons helped him in cheating and defrauding the Department and acquitting of the charge of making false pay bills, GPF bills etc., in league with other accused persons, however, has held that he was responsible for preparing false OTA bills. The finding recorded in this regard is quoted be low:-- "But these revelations are simply insufficient to make the Court to entertain a clear view that accused Sh. D.C. Das made forged entries in the documents, referred to above, or that he defrauded the Telecom Department, or that other accused persons helped A-1 in cheating and defrauding The Telecom District Office, Nagaon. Thus, I have no other alternative but to hold that the charge of accused Sh. D.C. Das's making false pay bills, GPF bills including GPF Debit Schedule in league with other accused persons, aforementioned, thereby causing the Telecom Department, Nagaon, to sustain huge loss remains without being established. The fact that all those accused persons denied tooth and nail, their being involved, in any, way what-so-ever, with the swindling of money from the casket of Telecom Department makes such a conclusion inescapable." 8. In this connection, the learned trial Court while holding that the OTA bills are the production of forgery, has referred to the opinion of the handwriting expert and also the evidence adduced by PWs-7 to 17. In this connection, the learned trial Court while holding that the OTA bills are the production of forgery, has referred to the opinion of the handwriting expert and also the evidence adduced by PWs-7 to 17. These PWs and Exhibits-62(1); 64(1); 65(1); 66(1); 67(1); 69(1); 70(1); 62(2); 63(2); 67(2); 68(2); 69(2); 66(2); 62(4); 67(3); 73(2); 72(3); 73(1); 73(3); 79(2) and 79(3) revealed that the signatures appearing either in the Acquaintance Rolls or OTA Registers were not that of PWs-7 to 16. According to the learned trial Court, the final confirmation was in reference to the testimony of PW-21, i.e. the handwriting expert, who opined that the relevant signatures were not that of the PWs-7 to 16. On the basis of the said testimonies, the learned trial Court coming to the definite conclusion that the handwriting/signatures were not that of the PWs, posed the question as to who was the person or persons, who had forged the documents, namely, the OTA bills as well as false entries in the Acquaintance Rolls. 9. While it was the prosecution case that the forgery was made by the accused/appellant but the accused/appellant contended that solely on the basis of the opinion of the handwriting expert, no definite conclusion could be arrived at that the forgery was made by the accused/appellant The learned trial Court, however, while disbelieving that the other 4(four) accused persons had acted in collusion with the accused/appellant in bringing the forged entries into existence, came to the conclusion that it was the accused/appellant and none others who had committed the forgery. The relevant observation in the impugned judgment of conviction is quoted below:-- "However, once again, same is not the case in so far A-1 is concerned, for, Handwriting Expert, in his evidence, very categorically claims that question mark Q.3, Q.4, Q,8 in Ext.79, Q.9 in Ext-61, Q.16 in Ext-62, Q. 19 in Ext-63, Q.36 to Q.39 in Ext.-69; Q.43 in Ext-70; Q.45, Q.47 and Q.48 in Ext.-73; Q.51 and Q.53 in Ext.-72 and Q.56 in Ext.-82 were all authored by none other than accused Sh. D.C. Das. In view of above revelations, there is no escaping from the conclusion that A-1 was the maker of aforesaid OTA bills, or for that matter, forged entries, found in concerned Acquaintance Roll. D.C. Das. In view of above revelations, there is no escaping from the conclusion that A-1 was the maker of aforesaid OTA bills, or for that matter, forged entries, found in concerned Acquaintance Roll. We have already found that prosecution has proved that during the time in question, A-1 was the Dealing Assistant, entrusted with the duty of processing OTA bills, that he did process those OTA bills and that the payments against OTA bills had been reflected in the concerned Acquaintance Roll. It has also proved beyond any shadow of doubt that signatures, marked as Q.15, Q.18(1), Q.23,Q.24, Q.28, Q.33, Q.37, Q.39 and Q.44; Q.9, Q.14, Q.17, Q.34, Q.36, Q.38, Q.43, Q.46 and Q.49, Q.22, Q.27, and Q.40; Q.31; Q.13, Q.5 and Q.35, Q.48 and Q.50; Q.47, Q.51 and Q.55; Q.4 were not authored by PW-7 to PW-9 and PW-11 to PW-16. All these disclosures together with averments, made in Ejahar, vide Ext. 104- in the facts and circumstances of our case in hand- throw more and more weight to the opinion, rendered by A-4 that A-1- and none other- was the author of signatures, marked as Q.3, Q.4, Q.8 in Ext. 79, Q.9 in Ext. 61, Q.16 in Ext. 62, Q.19 in Ext. 63, Q.36 to Q.39 in Ext. 69; Q.43 in Ext. 70; Q.45, Q.47 and Q.48 in Ext. 73; Q.51 and Q.53 in Ext. 72 and Q.56 in Ext. 82. Thus, the allegation of A-1's forging OTA bills and Acquaintance Roll is found proved to the hilt. For the reasons, I have detailed, hereinbefore and for what I have concluded thereon, I have no hesitation to hold that A-1 did forge some documents with the intention of cheating, he did use those documents as genuine though he know those documents to be forged ones, he did cheat Telecom Department, Nagaon to the tune of Rs. 1,40,994/-. Above being the positions, I am compelled to hold that prosecution has proved charges U/s. 468/471 r/w 467/420 IPC against A-1 beyond all reasonable doubt. The above are also emphatic testimonies to accused S. D.C. Das misusing his position as public servant thereby gaining illegal monitory benefits which he was not entitle to and such conduct bring him within the four walls of term misconduct, as defined in section 13(2) r/w 13(1)(d) of the P.C. Act 1988." 10. The above are also emphatic testimonies to accused S. D.C. Das misusing his position as public servant thereby gaining illegal monitory benefits which he was not entitle to and such conduct bring him within the four walls of term misconduct, as defined in section 13(2) r/w 13(1)(d) of the P.C. Act 1988." 10. The learned trial Court has also recorded the following finding:-- "Coming to the first charge, aforementioned, I have found that same is not totally borne out by facts on record, for, prosecution has produced and proved those pay bills and GPF bills, as Ext. 32 to Ext. 41 and Ext. 49 to Ext. 60 respectively. But facts remain that prosecution could not at all prove that those documents were authored by A-1 or that entries therein, said to be forged, were made by A-1. Complicity of A-1 in making or forging those documents not having been established, it does not, now, lie in the month of prosecution to say that A-1 forged documents, referred to above. In the face of above revelations, I have no difficulty in holding that the first charge is substantially true. In so far second allegation is concerned, I have found that the allegation of evidence of Handwriting Expert, being defective and the allegation of his evidence remained without being corroborated is found to be much without substance, for, I have found that evidence on record reveals that though Handwriting Expert did not perform certain test while giving opinion on the question writings and signatures, yet, those lapses by no stretch of imagination can be said to be fatal in rendering his entire opinion unreliable. Rather, materials on record clearly evince that the opinion of Handwriting Expert that Ext. 62(1), Ext. 64(1), Ext. 65(1) Ext. 66(1), Ext. 67(1), Ext. 69(1) and Ext. 70(1); Ext. 62(2); Ext. 63(2); Ext. 67(2); Ext. 68(2) and Ext. 69(2); Ext. 66(2); Ext. 62(4);Ext. 67(3) Ext. 73(2), Ext. 72(3); Ext. 73(1) and Ext. 73(3); Ext. 79(2) and Ext. 79(3) are not the signatures of PW-7, PW-8, PW-9, PW-11, PW- 12, PW-13, PW-14, PW-15 and PW-16 have been well corroborated by PWs, aforesaid. Quite importantly, the facts that during the time in question, Sh. Das was the person responsible for processing of OTA bills and handling of Acquaintance Roll as well again confirm the testimony of Handwriting Expert that Q3, Q.4, Q.8 in Ext. 79, Q.9 in Ext. Quite importantly, the facts that during the time in question, Sh. Das was the person responsible for processing of OTA bills and handling of Acquaintance Roll as well again confirm the testimony of Handwriting Expert that Q3, Q.4, Q.8 in Ext. 79, Q.9 in Ext. 61, Q. 16 in Ext. 62, Q. 19 in Ext. 63, A.36 to Q.39 in Ext. 69; Q.43 in Ext. 70; Q.45, Q.47 and Q.48 in Ext. 73; Q.51 and Q.53 in Ext. 72 and Q.56 in Ext. 82 in the Token Registers and in OTA bills are forged by Sh. D.C. Das. That being so, the allegations of Handwriting Expert evidence remained without corroborated and that his evidence is defective on material points come only a cropper. In the above backdrop, let me see if mere was a defect in framing of charges against accused Sh. D.C. Das and if so, such defect is fatal enough to derail the prosecution case at least in so far it relates to accused Sh. D.C. Das. On a careful perusal of record, I have found that the allegation, mounted on this count, is found to be based on fact, for, the charge framed against Sh. Das did not make mention of his forging OTA bills in question. But then, such a defect in my very considered view, could not throw the prosecution case overboard. We have already found that right from the very beginning the forging of OTA bills, aforesaid, by accused Sh. D.C. Das, forms one very important pillar of the prosecution case. This is found evident from the various statements which 10 recorded during the course of investigation. To prove such allegation, the prosecution tendered evidence both oral and documentary. What is more, Sh. Das had full knowledge of the same. The fact that there was threadbare of cross-examination from the side of Sh. Das, touching the allegation of forging the said OTA bills by him makes such position crystal clear. The above revelations, in the teeth of the facts-that all other allegations against Sh. Das and others, have properly been brought to the notice of accused persons and that those allegations for their having close nexus with the allegation of Sh. Das forging OTA bills in question, must have made known to Sh. Das, what he was required to defend, herein-clearly evince that accused Sh. Das and others, have properly been brought to the notice of accused persons and that those allegations for their having close nexus with the allegation of Sh. Das forging OTA bills in question, must have made known to Sh. Das, what he was required to defend, herein-clearly evince that accused Sh. Das had got a fairly good chance of defending all the allegations, being brought against him including the allegation of forging OTA bills, stated above. In that view of the matter, it cannot be said that only for defect, aforesaid, prosecution case against Sh. D.C. Das needs to be thrown away. Quite contrary to it, such an allegation needs to be rejected for its being of no consequences, what-so-ever. Thus, all the charges mounted against the prosecution case, fail to accomplish the purposes, assigned to them." 11. From the above discussion of evidences and the findings recorded by the learned trial Court, it is seen that the conviction is based on the testimony of the hand- writing expert (PW-21), coupled with the fact that the prosecution could establish that the signatures in question were not that of the PWs. However, the most important aspect of the matter is as to who was responsible in forging the documents. It is solely on the basis of the opinion of the handwriting expert, the learned trial Court has held that it was the accused/appellant, who was responsible for forging the documents but there is no corroborative evidence to support the said opinion. In this connection, Mr. Kataki, learned counsel for the accused/appellant has specifically referred to the evidence of all the PWs, on perusal of which nothing is discernable that it is the accused/appellant, who was solely responsible for preparation of OTA bills. 12. PWs-7 to 17, whose signatures were forged, in their depositions, never attributed the offence against the accused/appellant. Rather, it is found in their evidence that there are other persons in the Office, who were also associated with the preparation of the OTA bills. PW-7 in his deposition stated that there was no written record in respect of performance of OT duty. In the cross-examination, he categorically admitted that the OTA bills were prepared by a team consisting of the JTO and other employees. PW-7 in his deposition stated that there was no written record in respect of performance of OT duty. In the cross-examination, he categorically admitted that the OTA bills were prepared by a team consisting of the JTO and other employees. Similarly PW- 8 in his deposition did not attribute anything against the accused/appellant PW-9 in his cross-examination stated that without certificate of the JTO, no bill for OTA could be passed for payment. PW-10 in his evidence stated that he had submitted the OTA bills for his OT duty, which was certified by the JTO and the same was sent to the SDO. The other PWs also did not state in their evidence that it was the accused/appellant, who was responsible for preparation of the OTA bills. It is only on the basis of the fact that there were forged signatures in some of the OTA bills and on the opinion of the handwriting expert, the accused/appellant has been convicted by the impugned judgment. 13. Apart from the fact that in the charge that was framed against the accused/appellant, there was no mention about his forging of the OTA Registers, as recorded in the impugned judgment of conviction, the handwriting expert also did not perform certain tests while rendering his opinion. While dealing with these aspects of the matter, the learned trial Court has held that such lapses did not render the entire opinion unreliable. However, no discussion has been made as to why such a defective test would lead to affirm conviction. Similarly and as noted above, no definite charge was made against the accused/appellant relating to forgery of the OTA bills/Registers and yet the learned trial Court held that such defect did not throw the prosecution case overboard. 14. Above being the position, I am of the considered opinion that the impugned judgment of conviction dated 14th September, 2005 passed by the learned Special Judge, CBI, Guwahati, Assam in Special Case No. 109/2004 is not sustainable and that the accused/appellant is entitled to the benefit of doubt. Accordingly, the judgment stands set aside. The appeal is allowed. The bail bond stands discharged. The Registry shall send down the LCR to the learned Court below alongwith a copy of this judgment and order.