JUDGMENT : 1. The present appeal is directed against judgment dated 28.01.2005 passed by the learned 1st Additional Sessions Judge, Jammu (Special Judge Anti Corruption, Rajouri, Poonch and Doda District) (‘the trial Court’) whereby the appellant has been convicted of offences under Sections 467/409 RPC and Section 5(2) of J&K P.C Act and sentenced to undergone simple imprisonment for a period of four years and to pay a fine of Rs. 5000/- in proof of offence under Section 467 RPC, simple imprisonment of four years and to pay a fine of Rs. 5000/- in proof of offence under Section 409 RPC and simple imprisonment for a period of three years and to pay a fine of Rs.5000 in proof of offence under Section 5(2) of J&K P.C Act. 2. It appears that an FIR No. 21/1987 for commission of offences under Sections 409/467/120-B RPC and Section 5(2) of J&K P.C. Act was registered with Police Station, Vigilance Organization, Jammu on the basis of a letter dated 10.01.1987 issued by the Directorate of Food and Supplies, Jammu (EXPW-NL) alleging therein that audit of Food and Supplies store, Ramban has revealed certain irregularities relating to misappropriation of food grains/sugar. It was alleged that the appellant (accused No.1) who was working as a Store Keeper, Ramban Food Store, took over the charge of stock of 2378 quintals of wheat from his predecessor on 07.30.1985 and he in connivance with other accused misappropriated the food grains/sugar by showing fictitious issue of food grains/sugar. Thus, an amount of Rs.183897.80 has been misappropriated by the appellant in connivance with other accused by manipulation of the record. It was alleged that 695.60 quintals of wheat, 6.13 quintals of rice (PR106), 90.95 quintals of Atta and 24.12 quintals of sugar were shown to have been issued to various Sales Depots, though the same were not actually issued. Thus, misappropriation amounting to Rs.1,83,897.80 being the cost of aforesaid food grains/sugar was committed by the appellant in conspiracy with the carriage contractors/co-accused. The auditors also found that the appellant had not made available the accounts of Rattna rice weighing 4597.80 quintals, cost of which, was worked out to Rs.14,39,685 and he had also not accounted for the empty bags. 3. The auditors also found that the appellant had not made available the accounts of Rattna rice weighing 4597.80 quintals, cost of which, was worked out to Rs.14,39,685 and he had also not accounted for the empty bags. 3. During investigation of the case, accounts allegedly suppressed by the appellant were later discovered and ultimately, it was concluded that the appellant in connivance with other accused had misappropriated only an amount of Rs.3,22,119.36 being the cost of 1020.40 quintals of wheat, 44.15 quintals of sugar, 75quintals of rice, 109.33 quintals of flour, 89.24 quintals of Rattna rice and 1173 empty bags. 4. Accordingly, the charge-sheet alleging commission of offences under sections 409/467/120-B RPC and 5(2) of P.C.Act was filed before the trial Court. On 28.06.1993, accused Mohan Lal and Sudershan Chakker were discharged by the learned trial Court, whereas the other accused including the appellant were charged for offences under sections 409/467/120-B RPC and Section 5(2) P.C Act. It seems that the said order came to be challenged by the State and ultimately, the Supreme Court set aside the said order to the extent of accused Mohan Lal and Sudershan Chakker and the case was remanded to the trial Court for considering the matter afresh. Thereafter, accused Mohan Lal and Sudershan Chakker were also charged for the aforesaid offences. The accused pleaded not guilty to the charges, as such, the prosecution was directed to lead evidence in support of its case. 5. In order to prove its case, the prosecution examined PWs Nand Lal Bakshi, Soudagar Mal, Harbans Lal, Kalyan Singh, Mangat Ram, Mohd Ashraf, Jai Kishan, Jagdish Kumar, Prem Pal Gupta, Shahbaz Khan, Avtar Singh, Altaf Ahmed, Annayatullah Khan and Mansoor Ali. 6. After completion of the prosecution evidence, the statements of the accused including the statement of appellant under Section 342 of J&K CrPC were recorded and the incriminating evidence was put to them for their explanation.. The appellant in his statement recorded under Section 342 CrPC admitted the evidence so far as his posting as Store Keeper at Food and Supply Store, Ramban in the year 1985-86 is concerned. He also admitted the evidence to the extent that his job was to receive the food grains from the Central Store and to supply it to the Sales Depots for onward distribution to public. He also admitted the evidence to the extent that his job was to receive the food grains from the Central Store and to supply it to the Sales Depots for onward distribution to public. He stated that no physical verification of his store was conducted and the audit, which was conducted, was defective. He further stated that there was no shortage of stocks found in his store. He stated that he had obtained receipt on the challans in respect of the stocks which he transported to Sales Depots. He also stated that he handed over the stocks to the carriage contractors against proper receipts and if there is any shortfall, it is the carriage contractor who can account for the same. He denied the allegation that there was shortage of stocks valuing an amount of Rs.3,22,119.36 found in his store The appellant termed the allegations made in the charge-sheet as false and sought to enter his defence. He examined one witness DW Saifudin in his defence. 7. Learned trial Court, on the basis of evidence led before it, came to the conclusion that the charges against the co-accused Mohan Lal, Sudershan Chakker, Ilam Din and Mohd Iqbal were not established. However, so far as the allegation that appellant had unlawfully and fraudulently retained with him 395.60 quintals of wheat for about five months and thereafter deposited cost of only 340 quintals of wheat in the treasury thereby failing to account for 55.60 quintals of wheat has been established against him. Accordingly, he has been convicted of offences under Sections 467/409 RPC and 5 (2) of J&K P.C Act. 8. The appellant has challenged the impugned judgment of conviction on the ground that there has been mis-joinder of charges which has caused prejudice to the appellant as the alleged misappropriation has taken place from February 1985 to February 1987 i.e for a period of two years. It has been contended that the prosecution has failed to prove the entrustment of the alleged misappropriated property to the appellant and, as such, he could not have been convicted by the trial Court. It has been contended that the prosecution has failed to prove the entrustment of the alleged misappropriated property to the appellant and, as such, he could not have been convicted by the trial Court. It has been further contended that the judgment impugned is self-contradictory because for the purpose of acquitting the other accused, the trial Court has held that their admitted signatures have not been proved by the prosecution, but, in the case of the appellant, in similar circumstances, the alleged admitted signature of petitioner has been taken into consideration without its formal proof. It has also been contended that the trial Court has not appreciated the statements of prosecution witnesses, particularly the statement of PW Manzoor Ali, Salesman, Rajgarh in its proper perspective. 9. I have heard learned counsel for the parties and I have also gone through the grounds of challenge, the impugned judgment and the record of the trial Court. 10. The learned trial Court, in the impugned judgment, has rightly identified the nature of allegations, on the basis of which, the appellant is stated to have been implicated by the prosecution. The same are reproduced as under: “(i) Accused No.1 made a fictitious entry in his record i.e challan No. 83/SKR dated 17.09.1985 and showed issued of 395.60 quintals of wheat to Raj Garh Sales depot through accused which was never sent actually. (ii) He retained this wheat unlawfully with himself instead of dispatching it to Rajgarh. (iii) He deposited the sale proceeds of 340 quintals in Ramban Treasury vide receipts Mark M and Mark M1 on 17.02.1986 and 18.02.1986 after about five months although he wsa not supposed to enter into any financial transaction. Depositing of sale proceeds in treasury lends credence to the fact that accused No.1 had retained the wheat in his possession unlawfully which he had shown as despatched to Raj garh. (iv) Signatures of accused No.1 on the treasury receipts with his admitted signatures. (v) Again accused No.1 issued the challan No. 93 without the permission from TSO.. (vi) He retained 395.60 quintals in his possession unlawfully and deposited sale proceeds of 340 quintals through unlawfully only and still he could not account for the remaining 55.60 quintals. 11. Regarding allegation No.1 quoted above, it has been found by the trial Court that this allegation has not been established from the evidence on record. (vi) He retained 395.60 quintals in his possession unlawfully and deposited sale proceeds of 340 quintals through unlawfully only and still he could not account for the remaining 55.60 quintals. 11. Regarding allegation No.1 quoted above, it has been found by the trial Court that this allegation has not been established from the evidence on record. The learned trial Court has observed that this allegation cannot be stated to have been established only on the basis of audit report, particularly when there has been no physical verification of the stocks by the auditors. It has been observed by the trial Court that the prosecution has not examined any witness from the office of Assistant Director Trade and Store to prove the actual quantity shown to have been supplied to the store of which the appellant was holding the charge, nor the auditors have conducted the actual check of the stocks to see as to what was actually received by the appellant in his store. It has also been observed by the trial Court that the records on the basis of which the audit report was prepared have not been produced, nor has the same been shown to the auditors PW Soudagar Mal and Harbans Lal. On the basis of these observations, the trial Court came to the conclusion that the first allegation is not established. 12. The trial Court has dealt with other allegations regarding dispatch of stocks to different Sales Depots without the same having been actually received in these sale Depots, head-wise. 13. Regarding dispatch of 300 quintals of wheat to Kabi Sales Depot, the trial Court has disbelieved the statement of consignee PW Mangat Ram who has stated that he did not receive the consignment shown to have been sent to him vide challan No. 15/SKR on the ground that FSL expert has expressed his inability to give a concrete opinion as regards the disputed signatures on the challan and the admitted signatures of accused No.4/ the carriage contractor on the said challan to whom the appellant is stated to have handed over the consignment. 14. 14. Regarding consignment of rice stated to have been sent by the appellant vide challan No. 201/SKR dated 27.05.1986 to the tune of 5 quintals of rice to Kabi Depot, the trial Court has again disbelieved the statement of consignee PW Mangat Ram on the ground that hand writing expert has not rendered any opinion as regards the disputed signatures on the challan. Similarly, regarding dispatch of consignment of 36.20 quintal of rice vide challan No. 179-A dated 24.03.1986 to Salesman Kabi Depot, again the trial Court has refused to place reliance upon the statement of PW Mangat Ram by observing that only on the basis of audit report, the appellant cannot be held guilty of the charge. xxxx 16. Regarding dispatch of 90.95 quintals of Atta vide challan No. 198/SKR dated 02.05.1986 to Salesman, Rajgarh, it has been noted by the trial Court that the consignee PW Manzoor Ali has denied having received the said consignment, but it has refused to rely upon the said statement of PW Manzoor Ali as no opinion was rendered by the handwriting expert on the disputed signatures. Regarding dispatch of 14.14 quintals of sugar vide challan No. 198/SKR to salesman Rajgarh, it has been noted by the trial court that handwriting expert has rendered his opinion that the admitted signatures of carriage contractor-`accused No.5 have been found to be similar to the questioned signatures appearing on the challan, but because admitted signatures have not been proved to be those of accused No.5 (the carriage contractor), therefore, no reliance can be placed upon the opinion of the expert. On this ground, it has been held that the charge is not proved. 17. In respect of challan No. 118/SKR dated 16.11.1985, similar conclusion has been drawn by the trial Court by noting that admitted signatures of accused No.4 have not been proved to be his signatures so the opinion of the handwriting expert that admitted signatures of accused No.4 are similar to the questioned signatures on the challan cannot be relied upon. The trial Court has, while dealing with the allegation relating to short remittance by the appellant, observed that on the basis of the audit report alone, it cannot be held that there has been short remittance by the appellant. 18. The trial Court has, while dealing with the allegation relating to short remittance by the appellant, observed that on the basis of the audit report alone, it cannot be held that there has been short remittance by the appellant. 18. The trial Court has, while dealing with the allegations relating to misappropriation of 50 quintals of wheat vide challan No. 183/SKR dated 25.08.1986, 50 quintals of wheat vide challan No. 195/SKR dated 9/1986, 100 quintals of wheat vide challan No. 118/SKR and 4 quintals of sugar vide challan No. 158/SKR dated 12.02.1986 stated to have been issued by the appellant to salesman PW Kalyan Singh of Sales Depot Jat Gali through carriage contractor, namely Mohd Iqbal (accused No. 5), held that because of the fact that admitted signatures of accused No.5 (the carriage contractor) have not been proved, therefore, the opinion of the expert that the said signatures are similar to the disputed questions on the challans, cannot be relied upon. Similar view has been taken in respect of challan No. 67/SKR dated 16.08.1985 relating to dispatch of 59.73 quintals of wheat, where-after, it has been held that these allegations against the appellant have not been proved beyond reasonable doubt. 19. The only allegation that has been held to be proved against the appellant is that his claim that he had dispatched 395.60 quintals of wheat through accused No.5 (the carriage contractor namely Mohd Iqbal) to salesman, Rajgarh, has been found to be false as the consignment has not been received by the consignee. In this regard, the trial Court has concluded that the appellant retained the aforesaid consignment with himself and sold it after five months and thereafter deposited the sale proceeds of only 340 quintals of wheat in the treasury. Thus, he has not only illegally retained with himself 395.60 quintals of wheat for five months, but he has also not accounted for the remaining 55.60 quintals of wheat. The findings of the trial Court in this regard are reproduced as under: “The evidence on record establishes the charge against accused No.1 i.e storekeeper of Ramban Food Stone. This charge pertains to challan No. 83/SK dated 17.09.985. He had the dominion over the food grains/sugar as same had been entrusted to him in his capacity as a storekeeper. The findings of the trial Court in this regard are reproduced as under: “The evidence on record establishes the charge against accused No.1 i.e storekeeper of Ramban Food Stone. This charge pertains to challan No. 83/SK dated 17.09.985. He had the dominion over the food grains/sugar as same had been entrusted to him in his capacity as a storekeeper. He forged the record i.e the challan No. 83/SKR dated 17.09.1985 and showed the dispatch of 395.60 quintals of wheat to sales Depot Rajgarh through carriage Contractor accused No.5 and in fact no such consignment was dispatched. Accused No.1, as such retained the entire consignment with him for about five months and then deposited the sale proceeds of only 340 quintals in treasury vide treasury receipts M1 and M2. He still failed to account for 55.60 quintals of wheat”. 20. While reaching the aforesaid conclusion, the trial Court has relied upon the statement of PW Manzoor Ali, salesman, Rajgarh. He has also placed reliance upon the opinion of handwriting expert, according to whom, the questioned signatures on treasury receipts dated 17.02.1986 and 18.02.1986 match with the admitted signatures of the appellant. 21. The record of the trial Court shows that the alleged admitted signatures of the appellant are appearing on a letter allegedly addressed by the appellant to his superior officer on 31.03.1986. The alleged admitted signatures ‘A3’ appearing on the said document have been compared by the handwriting expert PW Altaf Ahmed with questioned signatures of appellant appearing on treasury receipts Mark-M and Mark-M1, where-after the handwriting expert has rendered his report in which he has opined that the person who wrote admitted signatures A3 also wrote the questioned signatures Q 8 and Q 9 appearing on the treasury receipts. 22. The question that arises for determination is whether on the basis of aforesaid statement of the handwriting expert, it can be sated that the signatures appearing on the treasury receipts Mark-M and Mark- M1 are those of the appellant. In order to prove that it is the appellant who signed the treasury receipts Mark-M and Mark-M1, it has to be shown that signatures appearing at A3 are those of the appellant. For doing so, it was obligatory for the prosecution to prove the said fact in the manner as provided under the Evidence Act. In order to prove that it is the appellant who signed the treasury receipts Mark-M and Mark-M1, it has to be shown that signatures appearing at A3 are those of the appellant. For doing so, it was obligatory for the prosecution to prove the said fact in the manner as provided under the Evidence Act. Section 47 of Evidence Act makes the opinion as to handwriting relevant when such person is acquainted with the handwriting of a person by whom it is supposed to have been written or signed or it was written or signed by that person. Explanation to the said provision provides that a person is said to be acquainted with handwriting of another person when he has seen that person write or when he has received the documents purporting to be written by that person in answer to document written by himself or under his authority and addressed to that person, or when in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him. 23. In view of the provision contained in Section 47 of Evidence Act, in order to prove that purported admitted signatures appearing on letter dated 31.03.1986 (A3) actually pertain to him, it was incumbent upon the prosecution to either produce the person in whose presence the appellant had signed that document or to produce a person who was acquainted with the handwriting of the appellant or to produce such other person who had received the correspondence from the appellant in ordinary course of business. In the instant case, none of these modes have been adopted by the prosecution to establish that the alleged admitted signatures A3 actually pertain to the appellant. Without proof of the fact that these signatures actually pertain to the appellant, mere comparison and similarity of these alleged admitted signatures with the questioned signatures appearing in the treasury receipts cannot form basis for concluding that the treasury receipts were signed by the appellant. Therefore, the very basis of conclusion drawn by the learned trial court that it is the appellant who had deposited the sale proceeds of 340 quintals of wheat in the Ramban Treasury vide receipts Mark M and Mark-M1 is not legally tenable. 24. Therefore, the very basis of conclusion drawn by the learned trial court that it is the appellant who had deposited the sale proceeds of 340 quintals of wheat in the Ramban Treasury vide receipts Mark M and Mark-M1 is not legally tenable. 24. It has been the consistent case of the appellant that he had vide challan No. 83 dated 17.09.1985, handed over the stock of 395.60 quintals to carriage contractor (accused Mohd Iqbal) who has been declared as absconder. In the absence of proof of the fact that it is the appellant who had deposited the sale proceeds of a part of the said consignment with the treasury, no liability can be fastened upon him unless it is shown that the appellant had not actually handed over the consignment to accused Mohd Iqbal. Mere denial of receipt of consignment by PW Manzoor Ali would not fasten liability upon the appellant. Even PW Manzoor Ali in his statement has deposed that it was accused Mohd Iqbal who told him to sign on the challan relating to consignment of 395.60 quintals of wheat without actually receiving it. He further stated that the appellant deposited the sale proceeds of wheat in the treasury on behalf of accused Mohd Iqbal. Thus, even as per the statement of PW Manzoor Ali, it was accused Mohd Iqbal who was interested in getting fictitious receipts from him. On the basis of this statement only, the appellant cannot be implicated. 25. There is yet another aspect of the matter which is required to be considered. The statement of appellant under Section 342 CrPC was recorded on 19.11.1997, whereas the statement of PW Manzoor Ali has been recorded on 13.05.1999 after he was summoned by the trial Court in exercise of its powers under Section 540 of J&K Cr.P.C. So, before placing reliance upon the statement of said witness, it was incumbent upon the trial Court to seek an explanation from the appellant in respect of the incriminating circumstances appearing in the said statement. No such exercise has been undertaken by the learned trial Court before placing reliance on the statement of PW Manzoor Ali. The trial Court has not recorded the further statement of the appellant under Section 342 Cr.PC after recording of the statement of PW Manzoor Ali. 26. No such exercise has been undertaken by the learned trial Court before placing reliance on the statement of PW Manzoor Ali. The trial Court has not recorded the further statement of the appellant under Section 342 Cr.PC after recording of the statement of PW Manzoor Ali. 26. It is a trite law that any incriminate circumstance appearing in the prosecution evidence which has not been put to the accused while recording his statement under section 342 CrPC cannot be used against him for recording his conviction. In this regard, it would be apt to refer to the ratio laid down by the Supreme Court in the case of Raj Kumar @ Suman v State (NCT of Delhi), 2023 LiveLaw (SC) 434. The Supreme Court, after noticing the legal position, summarized the same as under: "16. The law consistently laid down by this Court can be summarized as under: (i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction; (ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence; (iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused; (iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused; (v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident; (vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and (vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC, 1973. (viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered.” 27. From the forgoing analysis of law on the subject, it is clear that each material circumstance appearing in the evidence against an accused has to be put to him specifically, distinctly and separately and if it is not done, it amounts to serious irregularity vitiating the trial, provided it is shown that the accused was prejudiced. It is also clear that non examination of an accused under section 342 J&K Cr. P. C. (313 Central Cr. P. C.) is an irregularity which may in normal circumstances be cured by remanding the case to the trial court for recording fresh statement of the accused, but if there is a long passage of time from the date of incident, the defect becomes incurable. 28. Adverting to the present case, as already stated, the trial Court has placed reliance upon the statement of PW Manzoor Ali without giving the appellant an opportunity to explain the incriminating circumstances appearing therein. This has caused a grave prejudice to the appellant. Thus, a grave irregularity has been committed by the trial Court by relying upon the statement of PW Manzoor Ali. 29. In view of the foregoing discussion, it is clear that the trial Court has landed itself into grave illegality by recording the conviction against the appellant on the basis of opinion of the handwriting expert despite being alive to the legal position that unless it is proved that admitted signatures pertain to a particular person, the opinion of handwriting expert on the basis of those admitted signatures cannot be relied upon. The trial Court, while applying the said legal position in the case of other transactions, which were subject matter of the challan, has, without any cogent reason, taken a different view and placed reliance upon the alleged admitted signatures of the appellant without actual proof of the fact that those signatures pertain to him. Thus, the very basis of the impugned judgment passed by the trial Court is flawed. 30. Apart from the above, the trial Court has committed a grave irregularity by placing reliance upon the statement of PW Manzoor Ali without seeking explanation from the appellant as regards the incriminating circumstances appearing therein. Thus, the very basis of the impugned judgment passed by the trial Court is flawed. 30. Apart from the above, the trial Court has committed a grave irregularity by placing reliance upon the statement of PW Manzoor Ali without seeking explanation from the appellant as regards the incriminating circumstances appearing therein. This irregularity has become incurable due to lapse of time. 31. Thus, the impugned judgment of conviction and sentence passed by the trial Court against the appellant cannot be sustained and, as such, the same is liable to be set aside. Accordingly, the appeal is allowed and the impugned judgment passed by the trial Court is set aside. The appellant is acquitted of the charges. His bail and surety bonds shall stand discharged. The trial court record along with a copy of this judgment be sent back.