1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 15 of 2002 Decided on May 26, 2011 ________________________________________________________________ State of H.P. …Appellant. Versus Nokh Ram ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant: Mr.R.K.Sharma, Senior Addl.Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Surinder Steta, Advocate. Justice Sanjay Karol,J. (oral) For an offence, which is alleged to have been committed from 18.9.1992 upto 19.10.1992, accused was put to trial. In terms of judgment dated 1.10.2001 passed by Additional Chief Judicial Magistrate, 1st Class, Court No.1, Shimla, in Case No. 19-2 of 2000/94, titled as State of H.P. vs. Nokh Ram, accused stands acquitted of the charged offences. 2. It is the case of the prosecution that Anoop Vaidya (PW.8) was having an account with State Bank of Patiala, Shimla Branch. He used to operate the same through various persons. Quite often he would send signed withdrawal forms through various persons for withdrawal of the money to the bank. Sometime in the month of October, 1992, he discovered 2 that certain amounts were withdrawn from his account without his consent or signatures in the withdrawal form. The matter was enquired from the bank and the teller of the bank, Sh.Romesh Banta (PW.2) informed PW.8 that one boy used to come and withdraw the amounts. After few days, PW.8 brought 3-4 persons to the bank and PW.2 identified the accused to be the one who used to withdraw the amount. The matter was reported to the police and FIR No.338/1992 dated 24.9.1992, under Sections 420, 406 and 467 IPC registered in Police Station, Sadar. Investigation reveals that accused had withdrawn different amounts from the Bank on different dates: (I) 18.9.1992 `1000/- (ii)19.9.1992 `1000/- (iii) 9.10.1992 `200/- (iv) 15.10.1992 `100/-”. 3. The withdrawal forms Ex.P1 to Ex.P5 were taken by the police vide recovery memo Ex.PW.4/A. The specimen signatures and hand-writing of the accused and the forms were sent to the Hand-Writing Expert for opinion. Opinion Ex.P2/2 (Ex.PW.9/C) was obtained. Case against the accused was made out and accordingly challan was presented in the Court for trial. 4. The accused was charged for having committed offences punishable under Sections 420, 406 and 467 IPC, to which he did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined 10 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded. 3 6. The Court below acquitted the accused of the charged offences on the ground that the prosecution could not prove that specimen signatures and hand-writing of the accused were taken in accordance with law. 7. Having gone through the material on record, we find that the prosecution has failed to prove that it was the accused who had withdrawn a sum of `2,400/- from the account of the complainant on five different dates from 18.9.1992 upto 19.10.1992 by forging the signatures of the complainant. 8. It is the prosecution case that complainant used to send different persons to withdraw the money from the bank. Also complainant brought 3-4 persons to the bank and Sh.Romesh Banta (PW-2) identified the accused to be the one who had withdrawn the amounts. But what needs to be considered is as to whether the withdrawal forms were actually filled up by the accused and signatures of the complainant were forged by him. 9. Now PW.2 himself admits that no specimen signatures of the account holder were verified at the time of processing the withdrawal forms before disbursing the amounts. Therefore, the Bank was itself negligent in discharging its duties. The identification of the accused was also not got done in the presence of the police or by the police during investigation. In the complaint, name of the accused was not mentioned. 4 10. According to PW.1 Sh.Anant Ram, the payments were received by the accused in his presence. His version does not inspire confidence. He appears to have been introduced by the prosecution later on. He had no reason to be present in the bank at the time when the amounts were allegedly withdrawn by the accused. Had he been present, he would have straightaway informed this fact to the complainant who admittedly was known to him. The fact that complainant brought the accused alongwith 3-4 persons to the bank for identification, belies his version. 11. That apart, none has come forward to prove that the specimen signatures of the complainant were also obtained and verified with signatures on the withdrawal forms. Further specimen signatures / handwriting of the accused were also not taken before the Magistrate, in accordance with law. Who took the signatures ? and in whose presence ? also cannot be said to have been established or proved in accordance with law. 12. The possibility of the complainant himself sending the accused or someone else for withdrawal of the payment as per the past practice, cannot be ruled out or for that matter someone using the genuinely signed withdrawal forms signed by the complainant himself cannot be ruled out. 13. Thus, we find that the prosecution case cannot be said to have been established / proved, beyond reasonable doubt, by leading clear, cogent, convincing and reliable 5 evidence. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge May 26, 2011 (Sanjay Karol) (Purohit) Judge