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2018 DIGILAW 710 (HP)

Rajinder Singh v. State Of Himachal Pradesh

2018-04-21

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —The petitioner was acquitted by the learned trial Court but on an appeal having been preferred by the State, came to be convicted for the offence under Section 408 IPC and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 25, 000/- and in default of payment of fine, to undergo simple imprisonment for four months. The facts as set-out by the prosecution, in brief, are that: 2. M/S R.K. Trade Linkers had been dealing in Paints and had various branches including the one at Gagret. PW-3 Pawan Kumar, complainant and PW-4 Dhan Raj had been working therein, whereas PW-2 Surinder Mohan had been working as Manager at Jalandhar. The petitioner was appointed as Salesman by PW-2 on 6.9.2002 as per appointment letter Ext.PW-2/A. PW-2 had issued reference Ext. PW-2/B in favour of the petitioner, which had been duly signed by him. The Gagret office of the Company was to remit funds to its Jalandhar office on 28.9.2002. PW-3 had handed over a sum of Rs. 70, 760/- to the petitioner vide receipt Ext. PW-4/A with the direction to deposit this amount with PW-2. However, the petitioner did not do so. Thereafter, PW-2 and PW-3 looked for the petitioner, who was eventually traced at his house at Hoshiarpur. When interrogated about the funds entrusted to him, the petitioner had stated that he had lost the same in gambling. On these allegations, PW-3 instituted a complaint Ext.PW-3/A against the petitioner on 3.10.2002 at Police Station, Gagret. Crime under Section 408 IPC stood registered against the petitioner, vide FIR Ext.PW-6/A. During the course of investigation, the Investigating Agency collected the service record of the petitioner and receipt Ext. PW-4/A. The petitioner was directed to furnish his specimen signatures for comparison with questioned signatures on receipt Ext.PW-4/A. The Government Examiner of Questioned Documents as per report Ext. PA had reported that the petitioner had executed receipt Ext.PW-4/A. However, the Investigating Agency could not recover the funds alleged to have been misappropriated by the petitioner. After completion of investigation, final report under Section 173 of Cr.P.C. was filed before the learned trial Court and copy thereof supplied to the petitioner. 3. After hearing both the parties, learned Judicial Magistrate 1st Class, vide order dated 7.3.2006 framed charge against the petitioner under Section 408 IPC to which he pleaded not guilty and claimed trial. After completion of investigation, final report under Section 173 of Cr.P.C. was filed before the learned trial Court and copy thereof supplied to the petitioner. 3. After hearing both the parties, learned Judicial Magistrate 1st Class, vide order dated 7.3.2006 framed charge against the petitioner under Section 408 IPC to which he pleaded not guilty and claimed trial. 4. The prosecution examined in all eight witnesses and thereafter the petitioner was examined under Section 313 Cr.P.C. wherein his defence was that of complete denial. After hearing the parties, the learned trial Court acquitted the petitioner. However, on an appeal having been carried to learned Sessions Judge, the petitioner came to be convicted, as aforesaid. 5. It is against the judgment of conviction passed by learned Sessions Jude that the petitioner has filed the instant revision petition on various grounds as taken in the memo of petition. I have heard learned counsel for the parties and have gone through the records of the case. 6. At the outset, it may be observed that even though the petitioner has been convicted by the learned first appellate Court, but this Court has no hesitation to conclude that while doing so, has not kept in mind the scope of its jurisdiction as laid down by the Hon''ble Supreme Court, from time to time. In this context, I need only refer to a recent judgment of the Hon''ble Supreme Court in Khekh Ram vs. State of Himachal Pradsh , (2018) 1 SCC 202 wherein the scope of power of appellate Court was summarized and it was held that an order of acquittal, if appealed against, ought not to be lightly interfered with. It was further held that it is trite as well that appellate Court is fully empowered to review, re-appreciate and re-consider evidence on record and to reach its own conclusions, both on questions of fact and on law. As a corollary, appellate Court would be within its jurisdiction and authority to dislodge an acquittal on sound, cogent and persuasive reasons, based on recorded facts and law applicable. If only when the view taken by learned trial Court in ordering acquittal is an equally plausible and reasonable one, that appellate Court would not readily substitute the same by another view available to it, on its independent appraisal of materials on record. If only when the view taken by learned trial Court in ordering acquittal is an equally plausible and reasonable one, that appellate Court would not readily substitute the same by another view available to it, on its independent appraisal of materials on record. Such legally acknowledged restraint on power of appellate Court would get attracted only if the two views are equally plausible and reasonable and not otherwise. If the view taken by the trial Court is a possible but not a reasonable one when tested on evidence on record and the legal principles applied, unquestionably it can and ought to be displaced by a plausible and reasonable view by the appellate Court in furtherance of ultimate cause of justice. Though no innocent ought to be punished, it is equally imperative that a guilty ought not to be let off casually lest justice is a casualty. In the instant case, the view taken by the learned trial Court was convincingly both plausible and reasonable one, based on correct appreciation of the oral and documentary evidence, which ought not to have been lightly interfered with by the learned appellate Court. 7. Adverting to the evidence on record, it would be noticed that PW-1 HHC Mulakh Raj, is a signatory to memo Ext.PW-1/A purported to be the bio-data of the petitioner and the same was taken into possession from Pawan Kumar, PW-3. He further stated that Ishar Dass had also signed the memo. In crossexamination, the witness stated that his statement was recorded by ASI Prem Chand, who prepared the aforesaid memo and also signed by Ishar Dass. 8. Pw-2 Surinder Mohan stated that he was Manager of M/s R.K. Trade Linkers, which had branch office at Gagret. PW-3 Pawan Kumar was the office Incharge, whereas the petitioner was Salesman. The duty of the petitioner as Salesman was for making transaction of payment and on 28.9.2002 Pawan Kumar had given Rs. 70, 760/- to the petitioner for depositing the same at Jalandhar office. The appointment letter of the petitioner as Salesman was Ext.PW-2/A containing the signature of this witness. The salary slip of the petitioner was exhibited as Ext.PW-2/C. He also stated that he made telephonic call for confirming the payment, but PW-3 Pawan Kumar told that the petitioner had not reached. Since the petitioner was not found, therefore, a search was carried out at Jalandhar and Hoshiarpur. The salary slip of the petitioner was exhibited as Ext.PW-2/C. He also stated that he made telephonic call for confirming the payment, but PW-3 Pawan Kumar told that the petitioner had not reached. Since the petitioner was not found, therefore, a search was carried out at Jalandhar and Hoshiarpur. It was on 2.10.2002 that the petitioner was found and told that the money that had been sent through him for depositing the same at Jalandhar had been spent on gambling. In cross-examination, the witness stated that the petitioner worked in the office 10-15 days and no record was available except salary slip whereby the salary of Rs. 1333/- had been given to the petitioner. He also stated that temporary appointment letter was signed by him which was given by one H.S. Bassin. He admitted that his signatures were not there on the letter Ext.PW-2/A. He further admitted that the police did not take counter-foil of receipt No.0096. 9. Pw-3 Pawan Kumar is the complainant, who stated that on 28.9.2002 he had handed over a sum of Rs. 70, 760/- to the petitioner and made telephonic call to the Manager in Jalandhar regarding the visit of the petitioner, but the petitioner did not reach there. Thereafter, he visited Hoshiarpur for search of the petitioner where he came to know that the petitioner had gone to Jalandhar. Thereafter, complaint Ext.PW-3/A was made against the petitioner. In cross-examination, he stated that affidavit Ext.D-2 bore his signatures and those of witness Karam Singh. Receipt mark ''X'' was written by Branch Manager, Dhan Raj of Rs. 70, 760/-. He also stated that the aforesaid amount was given in presence of Dhan Raj. 10. Pw-4 Dhan Raj stated that he was Manager of M/s R.K. Trade Linkers and that Rs. 70, 760/- was given on 28.9.2002 by Pawan Kumar to the petitioner. He stated that he gave Rs. 70, 760/- to Pawan Kumar. After 28.9.2002 the petitioner did not come to the office on 29.9.2002 and even thereafter on 30.9.2002. He admitted that he had not seen the appointment letter of the petitioner and further admitted that in case of payment, carbon copy of the receipt is kept in the office. 11. Pw-5 HHC Dhian Singh stated that on 8.11.2002, MHC Surjit Singh gave him sealed packet for depositing the same at FSL, Bharari, which he deposited there. 12. He admitted that he had not seen the appointment letter of the petitioner and further admitted that in case of payment, carbon copy of the receipt is kept in the office. 11. Pw-5 HHC Dhian Singh stated that on 8.11.2002, MHC Surjit Singh gave him sealed packet for depositing the same at FSL, Bharari, which he deposited there. 12. Pw-6 ASI Parkash Chand stated that on 3.10.2002, he was with other police officials in Gagret Bazar, where complaint Ext.PW-3/A was given to him. The case was accordingly investigated. Statements of the witnesses were recorded and thereafter, the petitioner was arrested. In his cross-examination, he admitted that he did not take into possession the record regarding the appointment of other officials in the office of R.K. Trade Linkers. He also stated that at no point of time he visited Jalandhar for the purpose of investigation. He admitted that the appointment letter Ext.PW-2/A was not having the signature of Pawan Kumar and that no receipt book had been ever shown to him by R.K. Trade Linkers. 13. Pw-7 ASI Amar Chand stated that on 4.8.2003 he had recorded the statement of Surinder Mohan Ext.PW-7/A. He categorically admitted in his cross-examination that during the investigation, he did not talk to the petitioner. 14. Pw-8, ASI Surjit Singh stated that he gave parcel to HHC Dhian Singh on 8.11.2002 for depositing the same at FSL, Bharari. In cross-examination, the witness stated that his statement was recorded on 1.4.2003 by the I.O. This in entirety is the evidence led by the prosecution. 15. As observed earlier, on the basis of the material, the learned trial Court acquitted the petitioner, but the learned appellate Court convicted him, as aforesaid. 16. Unfortunately, while doing so, the learned appellate Court had relied upon certain documents, which are not even proved on record and, therefore, the judgment passed by it, is not sustainable in the eyes of law. 17. At this stage, a reference can conveniently be made to the so called bio-data of the petitioner, which had not been proved on the record and it was simply marked as Mark ''A''. 17. At this stage, a reference can conveniently be made to the so called bio-data of the petitioner, which had not been proved on the record and it was simply marked as Mark ''A''. The first appellate Court relied upon this document by concluding that the same had been signed by PW-2 Surinder Mohan and since it was nowhere the defence of the petitioner that the particulars noted in the bio-data pertained to someone else, therefore, it was presumed to be true. 18. Here, it may be mentioned that the document having not been proved in accordance with law, the petitioner was under no legal or other obligation to prove the document against himself and it was for the prosecution to have proved its case beyond all reasonable doubt and not for the petitioner to have proved his innocence. 19. The learned first appellate Court has erred in not bearing in mind the fundamental principles of criminal jurisprudence that the petitioner is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. 20. That apart, it would be noticed that the so called appointment letter of the petitioner Ext.PW-2/A and the certificate annexed as Ext.PW-2/B are manipulated documents and have been manufactured during the course of investigation. Why I observe so, is because, both these documents are "original documents". It is not the case of the prosecution and the witnesses examined by it in support of the appointment letter Ext.PW-2/A that the original letter had been retained by the office and similarly it is also not their case that the original certificate placed on record as Ext.PW-2/B had been retained by the office and produced as such. 21. Now, adverting to the salary slip upon which much reliance has been placed by the learned appellate Court, suffice it to say that the same has not even been proved in accordance with law and moreover, it does not even bear the signature of the petitioner. In case the petitioner was in fact an employee of M/s R.K. Trade Linkers as alleged by the prosecution, obviously then his services would be regulated and governed by the various Industrial laws enacted for the benefit of such industrial workers. But unfortunately no such record has been produced by the prosecution, constraining this Court to draw an adverse inference against it. But unfortunately no such record has been produced by the prosecution, constraining this Court to draw an adverse inference against it. Much emphasis appears to have been accorded to some certificate exhibited as Ex.PW-4/A on record, while a bare perusal of this document would clearly show that the same does not even bear the signature of the petitioner and rather someone else had tried to forge his signatures. 22. It is settled law that the disputed signatures can be compared by the Court with the admitted signatures, which were contemporaneous. This is irrespective of opinion of the handwriting expert and the Court is well within its right to come to its own independent conclusion on the basis of such comparison. Such exercise of comparison is permissible under Section 73 of the Evidence Act, as ordinarily, Section 45 and Section 73 of the Evidence Act are complementary to each other. Thus, the learned appellate Court could not have on the basis of re-appreciation, that too, of inadmissible evidence and by further placing reliance on documents which had otherwise forged or fabricated have convicted the petitioner. 23. In view of the aforesaid discussion, I find merit in this revision petition and the same is accordingly allowed and the judgment of conviction and sentence as passed by learned Sessions Judge, Una on 5.3.2010 is set-aside and the petitioner is accordingly honourably acquitted of the offence under Section 408 IPC. The bail bonds furnished by the petitioner shall stand discharged.