CRA/1/2007 of BODH RAJ Vs STATE on 26 December 2008

1. Accused appellant Bodh Raj is a teacher and in the month ofSeptember 1976 he made a representation to the District EducationOfficer, Jammu for his transfer from central School Kanyala to anyother School in Jammu proper. He was transferred to Govt. HigherSchool Gole Gujral vide order No. 4450-54 dated 18.10.1976 underthe orders of District Education Officer. In compliance with thistransfer order, the accused-appellant joined in Govt. High SchoolGole Gujral on 23.10.1976. Subsequently he was given the chargeof clerk also and was authorized to draw salary and other bills by the Headmaster vide communication dated 152.1977 from_§ theGovernment Treasury, Town Hall Jammu. The Headmaster of theschool was the Drawing and Disbursing Officer of the Institution.During the period from August 1978 to August 1980, it 1s allegedthat the accused-appellant prepared 25 forged bills and drewdifferent amounts from the Treasury and misappropriated thatamount. This withdrawal of the amount after preparing forgeddocuments was detected when one Shri S.N. Dhar received a letter|from Accountant General, Srinagar to deposit an amount ofRs. 3000/- drawn by the Headmaster of Govt. High School GoleGujral during 1978 and debited in his account. After verification ofthe record, this whole affair was detected. Report was lodged withpolice Station Domana, Jammu by the Headmaster Govt. HighSchool Gole Gujral on 17.12.1980.

?)On this report, FIR No. 168/80 under sections 420/471 RPC}was _ registered with the Police Station Domana. Duringinvestigation it was found that the accused-appellant had prepared25 fraudulent bills during 1978 to 1980 and has withdrawn anamount of Rs. 67,950/- trom the Treasury and misappropriated thesame. The investigation was subsequently handed over to the CrimeBranch and after completion of the investigation 8 different chargesheets(challans) were produced 1n the court of law. After trial of allthese cases, the accused was acquitted of charges in six cases, butwas convicted in two cases in challan Nos. 124 and 128 under'

sections 420/465/471 RPC and sentenced him to undergo simpleimprisonment of six months and a fine of Rs. 1000/- under section420 RPC, simple imprisonment for six months for the commissionof offence under section 465 RPC and a sentence of simpleimprisonment for six months for the commission of offence undersection 471 RPC in both cases vide orders/judgment dated11.10.2007 and 09.01.2007. Sentences were to run concurrently.

The learned trial court convicted and sentenced the accused-appellant in both cases on the ground that it stands proved that theaccused prepared forged bills in both the cases under the signaturesof Drawing and Disbursing Officer and drew the amount of the billsfrom the Treasury and misappropriated the same. Aggrieved bythese impugned orders/judgments, the accused appellant haspreferred these two appeals.

] have heard the learned counsel for the parties. I have also|perused the record on the files.

5. Both these appeals are taken up together because the facts 1nthe case are identical and same question of law 1s involved in boththe appeals.

6. Mr. D.S. Saini, Advocate appearing for the accused-appellant,has submitted that the evidence relied upon by the learned trial courtin the case 1s inadmissible because the statements of the witnesses |have been transferred from one file and the accused has not been.afforded any opportunity for cross-examination in other cases and

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thereby accused 1s prejudiced. The handwriting and signatures ofthe accused on the bills have not been proved by the prosecution. |He has further submitted that the statement of the accused under.section 342 Cr.P.C. has not been recorded properly inasmuch as allthe accusations found in the prosecution evidence were not put to theaccused. He has further submitted that Investigating Officer has notbeen produced in the case which has caused prejudice to theaccused/appellant. On the other hand, Mr. P.C. Sharma, learnedAdditional Advocate General, has submitted that the prosecution hassucceeded in proving its case and the evidence of the witnesses inthe case 1s admissible under sections 47 and 73 of the J & K.Evidence Act in respect of handwriting and signatures of a person. |He has further submitted that under section 510 Cr.PC. the’!certificate of handwriting expert is admissible without examinationof the expert.

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It is admitted by the trial court itself that the evidence in thesecases has been recorded in one case only and the copies of the samehave been transferred to the other cases and the entire record hasbeen seized in one case only and there 1s no documentary evidenceon other files. He has admitted that this is the wrong procedurebecause there 1s no provision 1n the Code of Criminal Procedure forclubbing of the cases. At page 4 of the judgment, the trial court hasobserved as under:- “Complicity of accused in commission of|offences under section 420/471 RPC. was §

established, and the transactions were split, into|seven cases, in terms of section 234 Cr.P.C..Charges were not only split, but different cases|were even registered against the accused, in|respect of different fraudulent with drawls, onecould understand the necessity of splitting the|cases but registration of different reports was not|needed at all, as during the investigation of case|FIR No. 168/80, different fraudulent withdrawalswere unearthed, so even a single FIR could fulfill the procedural requirement. Anyway, it 1s no use|to comment upon it now. Instant case is the end|result of investigation in case FIR No. 98/1984,|and this judgment shall be limited to this case|only. Ordinarily, convenient course would havebeen to dispose off all the seven cases through a|single judgment, because all these cases have|emanated from case FIR 168/80, and evidence|has also been recorded in one case only though|placed on separate files, and the entire seized|record, and the other documentary evidence les|on one case file pertaining to case FIR No.|168/80, but that would again be a wrong track as_in criminal procedure there is no provision for|clubbing of cases. So, each case has to be taken|up individually for decision though it would be|highly inconvenient. Since record lies on one fileonly, so reference to the record where ever|inevitable in this judgment would mean referenceto record on File No. 130/Session which relates|to case FIR No. 168/80, and so it would be the|mother file, for rest of the files including this|one.”

Although the learned trial court has admitted thatthe wrong procedure has been adopted in|splitting the cases by the investigation and|subsequently tried by the court by clubbingthose cases as there is no such _ provisionevidence in the Code of Criminal Procedure|itself. He has also admitted that the evidence|

oral as well as documentary is in File No.|130/Session relating to the case FIR No. 168/80.By doing so, 1n my opinion, this 1s an illegality|which has caused serious prejudice to _ thaccused-appellant because he has been convicted|in two cases where the evidence has been taken|from other file 1n which the accused has heen|acquitted of the charge.

In order to substantiate the charges against the|accused, the prosecution has examined Bank|Manager Bal Krishan Gupta PW, Kuldip Raj|Sharma PW a bank employee, Paras Ram, Har|Dutt, Sharma and Bodh Raj PWs employees of|treasury proving that the accused-appellant had|been withdrawing amount of the treasury. The|prosecution has also examined Gullu Ram and_Som Nath Dhar PWs, who were teachers posted|in the School and amount of Rs.2500/- and Rs.|3000/- had been withdrawn from their G.P Fund|account without their applications. Gyan Chand,|1.D.Soni and Gurbachan Lal PWs are witnesses|to the seizure of record. The depositions of these|witnesses do not connect the accused-appellant|with the commission of offence even remotely.

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11. The other evidence on the mother file is the|depositions of Yogya Dutt PW and Kanwarjeet|Singh PW, who were Head Masters at the|relevant time and as Head Master they were the|Drawing and Disbursing Officers. They have|deposed that they have not signed the withdrawalbills and the same are forged or fraudulent. The|evidence relied upon by the learned trial court 1sthe statement of PW Yagya Dutt, the then|Headmaster Govt. High School Gole Gujral. He|has also deposed that he is acquainted with the|signatures of the accused. The accused has|prepared and signed the bills in dispute. He has|further submitted that the accused-appellant has|forged his (witness) signatures on these bills. Hehas admitted that he has not signed any bill but|the accused has forged his signatures.

The learned trial court has held that. thisstatement of the Yogya Dutt PW 1s admissible 1n|evidence because it fulfills the requirements of|section 47 of the Jammu and Kashmir Evidence|Act. In taking this view the learned trial court|was not correct because section 4/7 1s notapplicable and the opinion given by the witness|

1S not admissible under section 47 of the Jammu|

and Kashmir Evidence Act, section 47 reads as.under:- “47.Opinion as to handwriting, when relevant.

When the Court has to form an opinion as to the personby whom any document was written or signed, theopinion of any person acquainted with the handwritingof the person by whom it is supposed to be written orsigned that it was or was not written or signed by thatperson, 1s a relevant fact.”’

From the plain reading of this section, it is clear that the opinion of the person acquainted with the handwriting of the person by whom it1S supposed to be written or signed 1s admissible if the said person 1swell conversant and acquainted with the handwriting of said person.In this case the signatures and handwriting of the accused on theforged bills 1s not in dispute. The allegation against the accused 1sthat he has forged the signatures of Drawing and Disabusing Officerof the institution namely, Headmaster of that school. HeadmasterYagya Dutt PW has deposed that he has not signed those bills. Hehas exceeded in deposing that these signatures have been forged bythe accused. This evidence of the witness 1s not admissible becausehe 1s neither expert in forming any opinion that the signatures havebeen forged by the accused on the disputed bills nor he 1s acquaintedwith the forged signatures of the accused-appellant of differentpersons including himself. He can only state that he has not signedthose bills. Heavy burden lies on the prosecution to prove that theaccused has forged those signatures.

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Section 47 of the J&K Evidence Act makes|relevant the opinion of ordinary witness in|absence of opinion of expert and the same is|admissible sometimes in respect of handwriting|or signature. The opinion of expert 1s also|relevant under section 45. In the instant case, thehandwriting expert has not been examined|although his report was on record. The learned|trial counsel has held that the report of the expertcannot be admitted in evidence on the ground|that the expert has not been examined and cross-examined on account of his non production.

The contention of learned AAG that the report ofthe handwriting expert although not proved|during the trial is admissible in evidence under|section 510 Cr.P.C. In my_ opinion, this|contention of the learned counsel for the State 1s devoid of any force. Section 510 reads as under:- “510. Report of Chemical Examiner.

1. Any document purporting to be a report under thehand of any Chemical Examiner or Assistant(Chemical Examiner to (Government or the ChieInspector of Explosives or the Director of Finer PrintBureau or an officer of the Mint, upon any matter orthing duly submitted to him for examination oranalysis and report in the course of any proceedingunder this Code, may be used as evidence in anyinquiry trial or other proceeding under this Code.

11. The Court may, 1f it thinks fit, and shall, on theapplication of the prosecution or the accused,summon and examine any such person as to thesubject-matter of his report.”

This provision does not cover the case in hand. Sub section(2) provides that the witness be summoned on_ theapplication of prosecution. This provision can be invoked.only if the prosecution gives a statement in the court fortaking on record the report of the Chemical examiner or theauthority mentioned in the provisions itself. There is.nothing on record to show that the prosecution ever made a.request to the trial court for taking into consideration thereport of handwriting expert. This report 1s inadmissible in)evidence unless it 1s proved that this report 1s covered underthis provision. Even otherwise the report of the handwritingexpert 1s a weak evidence cannot be considered conclusive,in arriving at a final conclusion without any corroborative|evidence. As stated above there 1s no other evidence on the|file to prove this fact.

14. Now the question arises 1n the case as to whether|the opinion of Yagya Dutt PW that the accused-appellant has forged his signatures is admissible|in evidence. It 1s a settled law that opinion|evidence 1s hearsay and becomes relevant only 1f|the condition laid in section 47 of the Evidence|Act is proved. Reliance is placed on case Rahim|

Khan Vs. Khurshid Ahmed, AIR 1975 SC 290.The opinion given by the witness is that the|accused-appellant has forged the signatures of|said witness. As stated earlier that the witness 1s not well conversant with the forged signatures|made by the accused. He has not stated on what|basis the witness has formed this opinion and_how he is conversant with the signatures alleged|to have been forged by the accused-appellant.|Thus this opinion 1s irrelevant and is inadmissiblein evidence. It 18 now well settled that the|opinion of the expert or person shall be received|with great case caution and alone cannot be madebasis for conviction of an accused. It can be|relied upon when supported by other evidence. It|is unsafe to base a conviction solely on the|opinion without substantial corroboration. The|learned trial court has also taken aid of section 73of the Jammu and Kashmir Evidence Act which|permitsthecourtTO comparisonof.signatures/writing etc of a person with the|writing/signatures of that person as stated above.This provision would also not help the|prosecution in probing its case. There 1s no|

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admitted forged signatures of Headmaster by the|accused which are admitted and as such the samecannot be compared with the forged signatures|on the bills. Further also the court cannot come|to the conclusion that the accused has forged|those signatures only on the basis of comparison|of its own without any other evidence on record.The learned trial court has also taken aid of|section /3 of the Jammu and Kashmir Evidence|Act which permits the court to compare the|disputed signatures/writing etc. of a person with|the admitted writing/signature of that person.|This provision would also not help the|prosecution in proving its case. The trial court|has not taken the signatures from the accused likeforged one in its presence and thereby compared|the same with the disputed forged signature. Thetrial court has also not taken the signatures of|Head Master, witness Yogya Dutt, the Drawing|and Disbursing Officer to see as to whether thosesignatures were genuine of forged one. There 1s no admitted forged signatures of Headmaster by|the accused and as such the same cannot be|compared with the forged signatures on the bills.

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Further also the court cannot come to the|conclusion that the accused has forged those|signatures only on the basis of comparison of its|own without and other evidence on record. The|conviction cannot be bases solely on the evidence|of comparison of signature by court.

There 1s set procedure and norms for withdrawal|of any amount by any institution from the|Treasury. The bills can be prepared by any|person but the amount is withdrawn from the|Treasury only on the authority and signatures ofDrawingandDisbursingOfficer.Afterwithdrawal of the amount from the Treasury the|said amount is disbursed to the concerned by the|Disbursing Officer. In the instant ( Vinod Kumar Gupta)Judge,