iminal Appeal No 47 of 1966
Appeal by special leave from the judgment and order dated September 6 1965 of the Patna High Court in Government Appeal No 23 of 1962
B P Singh and D N Misra for the appellant
D P Singh and K M K Nair for the respondent
173 The Judgment of the Court was delivered by Vaidialingam J
On behalf of the sixth accused the appel lant herein in this appeal by special leave Mr B P Singh learned counsel challenges the order of the Patna High Court dated September 6 1965 setting aside the order of acquittal passed by the Second Additional Sessions Judge Muzaffarpur and convicting him for an offence under section 467 read with section 109 IPC and passing a sentence of three months  rigorous imprisonment
For the relief and rehabilitation of people who had suffer ed in 1954 by the heavy floods in Sitamarhi Sub Division the Government of Bihar was granting loans to needy and suitable persons under the Agriculturist s Loan Act 1884
The appellant was a Mukhtear practising at Sitamarhi
There are certain formalities to be gone through in the matter of obtaining the loans under that Act
One of the requirements was that an applicant had to put his signature on an agreement form and that he should be identified by a lawyer who should also attest his signature
Several officers connected with this Loan Department including the Mukhtears practising at Sitamarhi one of whom was the appellant were alleged to have entered into a conspiracy between November 19 1955 and December 22 1955 to cheat the Government by inducing it to grant loans in the names of fictitious persons and in pursuance of that conspiracy two applications for loans in the names of two fictitious persons Durga Singh and Hari Shankar Singh were filed before the Sub Divisional Officer Sitamarhi
According to the prosecution the appellant and another Mukhtear
Devendra Prasad had certified in the loan applications of Durga Singh and Hari Shankar Singh that they knew those parties and that they had signed in their presence
The amounts were drawn in the usual course from the treasury by the said two persons and ultimately it came to light that the two persons were fictitious persons got up by the several accused
The appellant admitted having attested in the loan applications of the two individuals concerned but he stated that he did so on the assurance of one Sheojee Prasad Karpardaj
It may be stated that this Sheojee Prasad Karpardaj was also charge sheeted but he has been discharged even by the committal Court
The learned Sessions Judge found on the evidence that Durga Singh and Hari Shankar Singh were fictitious persons and a fraud was committed on the Sub Divisional Officer Sitamarhi and the Sub treasury as a result of which the Government sustained a loss of Rs 1000 
The learned Sessions Judge accepted the appellant s plea that he had made the endorsement on the 174 assurance of Sheojee Prasad Karpardaj and in view of the fact that other Mukhtiar Devendra Prasad had also attested the loan applications and acquitted him
This Devendra Prasad had also charged for the same offence
While admitting having attested the signatures of the applicants for the loan Devendra Prasad had set up a plea that he did so on the assurance given by one Rudradeo Singh
This explanation has been accepted by the trial Court and Devendra Prasad was acquitted
But when the State appeal against acquittal was pending in the High Court Devendra Prasad died
But we have to refer to certain observations made by the High Court regarding this Devendra Prasad which have more or less formed the grounds for setting aside the order of acquittal of the appellant also
The High Court on appeal by the State Government has set aside the order of acquittal of the appellant
Two reasons so far as we could see have been given by the High Court for interfering with the order of acquittal viz  i that though the appellant raised a defence that he attested the loan applications on the representation and assurance of Sheojee Prasad Karpardaj no evidence has been let in by the appellant to support this defence and ii Devendra Prasad with whose case the appellant s also was closely connected had raised a plea that he attested the loan applications on the assurance and representation of Rudradeo Singh and that Devendra Prasad has not examined himself as a witness under section 342A CrPC nor did he adduce any other evidence in support of his claim
It is really on these grounds that the appellant has been convicted for the offence under section 467 read with section 109 IPC and sentenced to undergo rigorous imprisonment for a period of three months
We are satisfied that the order of the High Court cannot be sustained
Regarding the first point mentioned above the High Court has really thrown the burden of proof on the appellant instead of finding out whether the prosecution has proved its case and whether the order of acquittal is erroneous
Regarding the second point the High Court has really committed a breach of the proviso to section 342A when it has commented upon the nonexamination of Devendra Prasad that he has not examined himself as a defence witness
Under cl
b of the proviso to section 342A Cr
PC it is specifically provided that the failure of an accused to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same time
The High Court has stated that the case of the appellant is closely connected with that of Devendra Prasad
In fact the appellant had pleaded that he had attested the signatures of the applicants for the loans because Devendra Prasad another Mukhtear had attested the same 175 and also on the assurance of one Sheojee Prasad Karpardaj
Devendra Prasad had taken a plea that he had attested the signatures of the applicants on the assurance of one Rudradeo Singh a class mate of his
It is in considering this plea that the High Court has commented upon the failure of Devendra Prasad to give evidence under section 342A and the High Court has also taken the view that the same reasons will apply to the appellant s defence also
That is the failure of the appellant to give evidence has been commented upon by the High Court and it has also drawn a presumption against him
 both of which are illegal under clause b of the proviso to section 342A Cr
In view of this serious infirmity in the judgment of the High Court the order under attack is set aside and the order of the Second Additional Sessions Judge Muzaffarpur acquitting the appellant will stand restored
In the result the appeal is allowed
GC Appeal allowed


Summary:
The appellant was a Mukhtear practising in Bihar
He along with some others attested the identity of certain persons on applications for loans under the Agriculturists Loan Act 1884
It was found that the applications had been made under false names and the appellant along with other accused was tried for an offence under section 467 read with section 109 IPC
The appellant s plea was that he had made the endorsements on the assurance of a co accused and in view of the fact that another Mukhtear D had also attested the loan applications
D s plea as an accused was that he had made the attestation on the assurance of one R
The Sessions Judge acquitted all the accused
The State of Bihar appealed to the High Court
During the pendency of the appeal D died
The High Court set aside the acquittal of the appellant and convicted him on two grounds namely i that though he had raised a defence that he had attested the applications on the assurance of S no evidence had been produced to support this defence ii that D with whose case the appellant s case was closely connected had not examined himself under section 342A of the Criminal Procedure Code in support of his plea and the same consideration applied to the appellant also
On appeal to this Court by special leave
HELD  The order of the High Court could not be sustained
i In requiring evidence in support of the plea raised by the appellant the High Court really threw the burden of proof on him instead of finding out whether the prosecution had proved its case and whether the order of acquittal was erroneous
174 F ii In commenting on the failure of the accused to examine themselves on oath under section 342A Cr
PC the High Court committed a breach of the proviso to that section which specifically states that the failure of an accused to give evidence shall not be made the subject of comment by any of the parties or the court or give rise to any presumption against himself or any other person charged together with him at the same time
175 B