IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Rev. No. 233 of 2003. Date of Decision: 5.10.2010. _______________________________________________ Chander Mohan Lala ….Petitioner. Versus. State of H.P. .Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? For the petitioner :Mr.Anoop Chitkara, Advocate with Ms.Divya Sood, Advocate. For the Respondent. :Mr.P.K.Sharma, Addl. Advocate General With Ms. Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). The petitioner is aggrieved by his conviction by the two courts below for offences under Sections 420, 471 and 120-B I.P.C. for which he was sentenced to undergo imprisonment for various terms. 2. The case of the prosecution is that the petitioner in conspiracy with three other accused, namely, Ram Swarup, Manager, Punjab National Bank, Subathu, Ashok Girdhar, who was the Officer of United India Insurance Company and Liaq Whether reporters of the Local papers are allowed to see the judgment? 2 Ram, Pradhan conspired together defraud the Corporation, facilitating disbursement of loans to purchase mules which in fact were never purchased. The specific allegations are that two of the loanees Sawanu Ram and Biptu Ram never applied for the loan though it was shown that the loan had, in fact, been disbursed to them. 3. Without entering into further of the details enumerated in this case, the role ascribed to the petitioner herein is not that he was actively associated in either identifying or procuring the loan documents etc. but he had issued two documents Ext.PW3/F and Ext.PW3/U on which the petitioner had recorded a certificate certifying that the animals purchased were in fit health. 4. These documents have been produced in evidence through PW3-A Sh. Pradeep Pushkaran, who was working as an Assistant with the Punjab National Bank at the relevant point of time. A reading of his evidence shows that he does not in any manner implicate the petitioner, but states in no unclear terms that each loanee had signed in his presence on the documents which were prepared by him. 5. Learned Additional Advocate General urges that the documents have been proved i.e. the hand writing of the petitioner has been proved by PW11 Mohinder Singh who is the hand writing expert. I cannot accept this submission for the reason that it has not been proved on record as to in whose presence specimen hand writing of the petitioner was taken. It has also not been established on the record as to 3 whether the handwriting on the document is in fact the hand writing of the petitioner. 6. That aside, the evidence of PW1 Tula Ram Verma may be considered. The statement as recorded, rather helps the case of the petitioner. His exanimation-in-chief was deferred as a specific request of the State after he had been partly examined and was not produced later on as in the meantime he died. He states in his evidence that he had made an inquiry with the assistance of some officers of the Corporation to ascertain the persons to whom the loan has been disbursed and were supposed to have purchased mules. He does not name these persons nor does he say who was the officer(s) who conducted the inquiry with him. None of those officers have been produced in evidence. He also says that he had identified each and every one of the persons to whom the loan had been advanced but reading his entire statement as a whole, I find that he has named none of them. 7. The case of the prosecution was that one Sawanu Ram was supposed to be the recipient of the loan. He has not been produced in evidence as is evident from the statement of PW6 Liaq Ram, who says that he knows Sawanu Ram and he is alive. What was the circumstance, under which this witness was with held, is not clear. All that I need say is that the best evidence has been withheld and in these circumstances, this Court is left with no option but draw an adverse inference against the prosecution. 4 8 There is no evidence on the record worth its name to establish any offence of criminal conspiracy, which can be established either by direct evidence or by the circumstances brought on the record of the case. I do not find any circumstance on the record rather the chain of events as it unfolds is that all the loanees were first identified by PW1 Tula Ram who recommended the case to the Bank where again they were identified and the loan disbursed only after it was found that they were genuine people as has been stated in the evidence of PW3-A Pradeep Pushkaran. These facts do not establish in a criminality but only strengthen the case of the defence. 9. Both the courts below have not considered these important points but have only confined their judgments to a simple narration of facts, without considering as to whether criminal consequences ensue from what has been stated in evidence. True that in revisional proceedings, it is not open to this Court to re-assess evidence but at the same time the principles of law applicable are to be considered as also the perversity in the findings of the courts below. If there is no evidence to link the petitioner with offence under Section 120-B I.P.C, he could not be punished for it. At the same time, the best witness Sawanu Ram has been with held though it is proved by the prosecution itself that he is alive. It is also established from the evidence of PW1 that he identified each and everyone loanees before the document was forwarded to the bank. In these circumstances, how could it be concluded that the petitioner had, in fact, actively defrauded the Corporation. 5 10. Learned counsel refers to the decision of the Supreme Court in C.Magesh and others Vs. State of Karnatka, (2010) 5 SCC 645 to urge that there should be consistency in evidence before any finding is arrived at. In particular he refers: “45 It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh V. State of U.P. (2008) 16 SCC 686: (2008) 11 SCR 286 has held : (SCC p.704, para 14) “14. ’21……The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy;…..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” 46. In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.” (P 1327) 11. Adverting to the evidence on record, it is difficult to establish links in the evidence placing criminal responsibility on the petitioner herein. When the testimony of PW3-A Pradeep Pushkaran is considered, he clarifies that each of the loanees have come to the Bank and signed the documents in his presence and in the presence of the 6 Manager who at that time was one Mr.Kainth. Even this Manager has not been produced in evidence. 12. PW5 Sunil Chand Joshi has also stated in his evidence that at the relevant point of time he was working with the Scheduled Caste & Scheduled Tribe Corporation and that the Manager PW1 Tula Ram Verma had identified each and every one of the loanees before the documents were forwarded to the bank. In this state of affairs, all that I need to say is that there is no credible evidence on the record to attribute criminality to the petitioner. 13. This revision petition is accordingly allowed. The judgment of conviction of both the courts below so far as the petitioner is concerned, is quashed and set aside. Bail bonds furnished by the petitioner shall stand discharged. (Dev Darshan Sud), Judge. October 5,2010(R)