IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 126 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- STATE OF GUJARAT Versus KISHOR @ PUNJA NATHA -------------------------------------------------------------- Appearance: MS B.R.GAJJAR ADDL.PUBLIC PROSECUTOR for Appellant MR RUCHIR M. SAYANI for Respondent No. 1 and 2 MS MITABEN PANCHAL for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 24/03/2000 C.A.V. JUDGEMENT #. This is an appeal under Section 378(1) of the Criminal Procedure Code, 1973 (for short `Cr.P.C.') filed by the State Government against an order of acquittal passed by the learned J.M.F.C., Junagadh by rendering his judgment (Exh. 210) dated 14-9-1989 in Criminal Case No. 2916 of 1981 which was on his file. #. The present respondents were the accused before the trial court and therefore for the sake of convenience the parties will be referred to as complainant and accused hereinafter as per their respective references in the said judgment. #. The facts leading to this present appeal in a nut -shell are as follows:- As per the complaint Exh. 98 filed by one Shri Govindbhai Kalabhai Parmar, who was Inspector of Post Offices, Porbandar Subdivision, Porbandar, which he lodged on 16-7-1975, he was entrusted with an enquiry with regard to the alleged misappropriation of Rs.4500/in the savings bank branch of Porbandar Head Post Office, at Porbandar. From his enquiry it revealed that on or about 24-4-1975 one person named Urmilaben Harjivandas Karia, C/o. Harjivan Mulji Karia of village Chhaya got opened one savings bank account No. 1255639 by depositing Rs.5/-. in Porbandar H.O. Post Office. On that very day, two British Postal Orders each of 10 pounds equivalent to an amount of Rs.370.80 were deposited in said savings bank account and therefore as on 24-4-1975 there was a balance of Rs.375.80 at credit in said savings bank account. On 25-4-1975 a withdrawal of Rs.370/- was made and therefore balance of an amount of Rs.5.80 remained at credit in said account. Thereafter on 9-5-1975, one withdrawal slip with a request to withdraw Rs. 4500/- was submitted to the Post Office. Said amount was to be withdrawn from savings bank account No. 1255639 and that withdrawal slip was purported to have been signed by one Ramniklal Ramji. As against that withdrawal slip, an amount of Rs.4500/- was withdrawn and said amount was debited in the Savings account No. 1255639 of said Post Office. On making enquiry it was found that there was no savings account in the name of Ramniklal Ramji in said Porbandar Head Post Office and in fact that savings bank account No. 1255639 was in the name of Urmilaben Harjivandas Karia and as on 25-4-1975 an amount of only Rs.05=80ps was at credit in her account. It is also alleged in the complaint that no amount of Rs.4500/- was ever credited in the said savings bank account. It is the case of the prosecution as it appears from the complaint that no person named Urmilaben Harjivandas Karia is residing at village Chhaya at the address shown as Opp. Chhya Grampanchayat and therefore it is the case of the prosecution that said account was a bogus account which was got opened in the fake name of Urmilaben Harjivandas Karia. As per the case of the prosecution ledger card for said account which was to be filled-in by Ledger Clerk was filled-in by accused No.1 Kishore alias Punja Natha Chauhan. On making enquiry from the said accused No.1, he informed the complainant that one lady had come to get opened that account and that he was not knowing that lady and that he did not fill-in the ledger card for savings account No. 1255639. It is further alleged in the complaint that accused No.1 might have prepared a ledger card in the name of Ramniklal Ramji and he might have placed that ledger card in the record, in place of ledger card which was prepared in the name of Urimilaben Harjivandas Karia. In ledger card prepared in the name of Ramniklal Ramji, number of savings account was shown as No. 1255639. A further doubt is expressed in the complaint that a prescribed From No. SB-3 to get opened a new account in the name of Ramniklal Ramji might have been prepared by accused No.1 by putting a forged signature of Ramniklal Ramji and thereafter on 9-5-1975 by putting a forged signature of Ramniklal Ramji or by producing a person stating his name as Ramniklal Ramji before the counter of savings bank account, an amount of Rs.4500/was withdrawn and thereafter ledger card and index card both prepared in the name of Ramniklal Ramji were taken out from the office-record and replaced them by putting ledger card and index card prepared earlier in the name of Urmilaben Harjivandas Karia. It is the case of the prosecution that warrant of payment was checked and verified by Deputy Post Master Shri M.B. Hoddar who is examined as P.W. 3 at Exh. 48, Counter Clerk Shri M.H. Balva (accused No.3) and Ledger Clerk Shri H.B. Kapdi who is examined as P.W. 2 at Exh. 69, and thereafter they passed that warrant of payment for Rs.4500/- to the person who tendered that warrant of payment. It is the case of the prosecution that on 9-5-1975 there were pass book, ledger card and card of specimen signatures, all with respect to Ramniklal Ramji on the record and after checking and verifying the said documents, payment of Rs.4500 was passed and made. It is the case of the prosecution that as on date of lodging the complaint that ledger card and index card in the name of Ramniklal Ramji were not there in the record and same were missing and doubt is expressed in the complaint that as Shri Kishore alias Punja Natha Chauhan (accused No.1), who is serving as class IV employee in the Post Office is fully conversant with the procedure for getting opened savings bank accounts and procedure for withdrawal of the amount, said cheating with the post office was done by accused No.1. Lastly it is stated in the complaint that on 9-5-1975 Shri M.B. Hoddar was Deputy Post Master (Savings bank), Shri M.H. Balva was Savings Bank Account Clerk and Shri H.B. Kapdi was Ledger Clerk and Shri P.N.Chahuhan was class IV employee in the Post Office and as stated in the complaint said persons in collusion with each other and by abetting each other, misappropriated an amount of Rs.4500/-. That aforesaid complaint first came to be registered as C.R.No. I 187 of 1975 and in that complaint the name of accused No.2 was not shown at all. On completion of police investigation, the case was chargesheeted against the present three accused on 23-1-1976 and that charge sheet came to be registered as Criminal Case No. 187 of 1976 in the Court of J.M.F.C. Porbandar. Then that case was transferred to the Court of the Chief Judicial Magistrate at Junagadh and that case came to be registered as Special Criminal Case No. 53 of 1978. Thereafter again that case was retransferred to the Court of the Judicial Magistrate First Class at Porbandar and it was again registered as Criminal Case No. 2916 of 1981. On perusal of the documents on which prosecution relied, the learned J.M.F.C. had framed charge at Exh. 50 against all the three accused on 4-8-1981. The prosecution led oral as well as documentary evidence in support of the case for which charge has been framed. The prosecution has examined in all ten witnesses and produced a number of documents. #. The defence of the accused is a case of complete denial. After appreciating the evidence led by the prosecution and after hearing the learned advocates for both the parties, the learned J.M.F.C. came to the conclusion that prosecution has failed to prove the case against all the accused beyond reasonable doubt and therefore by rendering his judgment (Exh. 210) dated 14-9-1989, he has acquitted all the accused by giving them benefit of doubt. #. Being aggrieved against and dissatisfied with the said judgment of acquittal, the State Government has preferred this present Criminal Appeal. #. The learned advocates for both the parties have read the entire oral as well as documentary evidence and commented the evidence on which the learned Magistrate relied to come to the conclusion of case being not proved beyond reasonable doubt. #. I have heard Ms. B.R.Gajjar, ld. APP for the appellant, Mr. Ruchir M. Sayani, learned Advocate for Mr. N.D.Nanavati, learned advocate for the respondents Nos. 1 and 2 and Ms. Mitaben Panchal, learned advocate for the respondent No.3. I have gone through the entire record of the case which was before the trial court. #. Ld. APP for the appellant has vehemently argued that looking to the evidence of handwriting expert coupled with his written opinion (Exh. 146) and reasons (Exh. 147) learned Magistrate ought to have held that all the three accused have committed offences for which charge (Exh. 50) has been framed. Learned advocates for respondents have argued that looking to an evidence led by the prosecution, the specimen signatures on specimen forms which were taken from the accused are not proved to have been taken from respective accused. As per their arguments, the handwriting expert has based his opinion by comparing the signatures on alleged admitted documents (Mark A, B, C and D) which are exhibited as Exh. 70, 71, 72 and 73. Alleged specimen signatures on specimen forms were taken from accused during the course of investigation. Learned advocate Ms. Mitaben Panchal for respondent No.3 has vehemently argued that the opinion of Hand-writing Expert is based on alleged specimen signatures of accused taken by the Investigation Officer during the investigation, and therefore that opinion cannot be taken into consideration unless and until it is proved beyond reasonable doubt that said specimen signatures were taken from respective accused. To understand this argument some admitted facts are required to be taken into consideration. #. The Investigating Officer Shri Dilipsinh Ranjitsinh Jhala (Exh. 159) has deposed at paragraph 4 that he had received admitted documents (Exh. 70 to 73) from complainant Shri G.K.Parmar and those documents were in custody of complainant Shri G.K.Parmar. No Panchnama was drawn at the time of seizure of that four documents. As per letter (Exh. 160) dated 1-9-1975, complainant Shri G.K.Parmar produced the following four documents before the Investigating Officer: 1. Pay-in-slip for Rs.5/0 dated 24-4-1975 in the name of Urmilaben Harjivandas Karia (Exh. 70). 2. Pay-in-slip for Rs.370.80 dated 24-5-1975 (Exh.71). 3. Withdrawal Form dated 25-4-1975 purported to have been signed by Urmilaben Harjivandas Karia, by which an amount of Rs.370/- was withdrawn (Exh. 72). 4. Warrant of payment (withdrawal form) for an amount of Rs.4500/- dated 9-5-1975 purported to have been signed by Ramniklal Ramji (Exh. 73). As per the case of the prosecution above four documents were available on record of the Post Office when complainant lodged his complaint, but on that day neither a prescribed form for opening savings bank account in the name of Ramniklal Ramji nor the card of specimen signatures of Ramniklal Ramji was there on record. ##. It is interesting to note that the Investigating Officer directed the police investigation on the strength of the documents Exhs. 70 to 73 produced by the complainant, as if that four documents were original documents. From the evidence it appears that the Investigating Officer had taken for granted that documents Exh. 70 to 73 to be original documents and therefore he took specimen signatures with specimen writing from all the three accused. As per Panchnama Exh. 154 specimen signatures of accused No.2 were taken. That specimen signatures with specimen writings are at A/1 to A/6 (Exh. 103 to 108) and B/1 to B/6 (Exh. 109 to 114). Accused No.2 was given prescribed form (Mark A) directing him to fill-in that pay-in-slip and further directed him to sign as Urmilaben Harjivandas Karia. That specimen signatures with specimen writings (Exh. 103 to 108) as alleged by the prosecution were signed by accused No.2 in presence of panch witnesses. Likewise, Investigating Officer directed accused No.2 to fill-in six specimen forms of pay-in-slip of Rs. 370.80 and directed him to sign as Urmilaben Harjivandas Karia. That six forms are at Exh. 109 to 114. As per the case of the prosecution, Investigating Officer also directed accused No.2 to fill-in the prescribed six specimen forms of warrant of payment of Rs.370/- and directed him to sign as Urmilaben Harjivandas Karia. That forms are at C1 to C6 (Exh. 115 to 120). ##. As per panchnama Exh. 154 accused No.1 Punja Natha was asked to fill-in the specimen prescribed forms of warrant of payment for rs.4500/and he was asked to sign as Ramniklal Ramji. That forms are at D1 to D6 (Exh. 121 to 126). From the above evidence, it is clear that from the very beginning the Investigating Officer had a doubt that accused No.2 had prepared all the documents in the name of Urmilaben Harjivandas Karia and got opened an account in name of Urmilaben with Head Post Office at Porbandar. It also appears that the Investigating Officer had a doubt that accused No.1 had prepared and signed a withdrawal Form `D' (Exh. 73). ##. It may be noted that the Investigating Officer had forwarded four original documents (Mark A, B, C and D) (Exhs. 70 to 73) along with eighteen specimen-forms which were signed by accused No.2, namely, Exhs. 103 to 120 and six specimen forms filled-in by accused No.1 (Exhs. 121 to 126) to the Handwriting Expert under his covering letter (Exh. 101). On reading letter (Exh. 101) dated 4-9-1975, the Investigating Officer treated the documents (Mark A, B, C and D - Exhs. 70 to 73) as original admitted documents and sought a specific opinion from the handwriting expert on the following four points: 1. Whether the handwriting and signature of the accused on Document Mark `A' (Exh. 70) do tally with the signature and handwriting of the person on Document Mark B (Exh. 71)? 2. Whether the signature of the accused on Document Mark A (Exh. 70) do tally with the signature of the accused on Document Mark C (Exh. 72)? 3. Whether the document Mark A (Exh. 70) and Specimen Forms (Exh. 103 to 126) were written by the writer of document Mark B (Exh. 71)? and 4. Whether document Mark C (Exh. 72) and documents Mark M (Exh. 163) and Mark I were signed by the writer of Mark B (Exh. 71)? ##. From the charge it appears that it is a case of the prosecution that on 24-4-1975 Savings Bank Account was opened in the bogus name of Urmilaben Harjivandas Karia as there was no existence of such person named Urmilaben Harjivandas Karia. As per charge framed at Exh. 50, the ledger card for such Savings Bank Account was to be filled-in by the Savings Clerk but instead of the Savings Clerk that ledger card was filled-in by accused No.1, and therefore from the very beginning it is the case of the prosecution that that Savings Bank Account in the name of Urmilaben Harjivandas Karia was a bogus account in which transactions were carried out by the accused. Prosecution has produced certain original documents relating to savings bank account which was opened in the name of Urmilaben Harjivandas Karia at Exh. 70 to 73. The pay-in-slip with which an amount of Rs.5/- was tendered in the post office is at Exh. 70. It may be noted that application for getting opened said Savings Bank Account is produced but it is not proved. Exh. 71 is the pay-in-slip with which two postal orders were tendered in the post office for an amount of Rs.370.80ps to be credited in Savings Bank Account. Exh. 72 is a warrant of payment by which person named Urmilaben Harjivandas Karia withdrew an amount of Rs.370/- from that savings bank account and therefore documents Exh. 70, 71 and 72 are relating to the account in the name of Urmilaben Harjivandas Karia. If we read complaint Exh. 98 lodged by Shri Govindbhai Kalabhai Parmar, we find that he had made enquiry at the initial stage and had interrogated Shri P.N. Chauhan, i.e., accused No.1 and during that enquiry accused No.1 informed him that for getting opened that savings bank account one lady had come to the post office. ##. It is the general practice that when someone goes to post office for getting opened a savings bank account, his or her identification is required to be given by a person who is known to the officers working in the Post Office, and therefore a reasonable inference can be drawn under Section 114 illustration (e) of the Indian Evidence Act that while getting opened the savings bank account, the concerned officers must have taken the identification of the person who came to get opened that account. Under the circumstances, it was the duty of the Investigating Officer to make in-depth enquiry about Urmilaben Harjivandas Karia in whose name that account had been opened. Investigating Officer, P.W. 10, Dilipsinh H. Jhala has deposed in his evidence that he had enquired for a person named Urmilaben Harjivandas Karia, but, she was not available. He has not produced any evidence to show as to what attempts were made to search out a female named Urmilaben Harjivandas Karia. Looking to the evidence, the Investigating Officer has not deposed in clear terms that there was no existence of any person named Urmilaben Harjivandas Karia. He has merely deposed that he had enquired about person named Urmilaben Harjivandas Karia but she was not available. It might have happened that the Investigating Officer had gone to the house of Urmilaben Harjivandas Karia and at the time of his visit Urmilaben Harjivandas Karia might not be present at her residence. Thus, it does not mean that person like Urmilaben Harjivandas Karia was not at all in existence. The prosecution ought to have placed all materials to show that all sincere attempts were made to search out Urmilaben Harjivandas Karia. By mere say of Investigating Officer that she was not available, it cannot be presumed that person named Urmilaben Harjivandas Karia was not at all in existence. Still however looking to an evidence of prosecution no misappropriation of single paisa was taken place in the transactions in Savings Bank Account in the name of Urmilaben Harjivandas Karia. So far as the case of prosecution with regard to opening of Savings Bank Account by depositing Rs.5/-, depositing of two Postal Orders in the said account and withdrawal of an amount of Rs.370/- from that account, no illegality whatsoever had occurred. ##. Looking to evidence of prosecution the case is chargesheeted for an amount of Rs.4500/- only withdrawn from that very Savings Bank Account though there was no sufficient amount at credit in the said account. The prosecution has produced a warrant of payment by which that amount of Rs.4500/- was withdrawn at Exh. 73. If we peruse this warrant of payment Exh. 73 we find that on 9-5-1975, this warrant of payment was presented in the post office. Number of Savings Bank Account in Exh. 73 is stated as 1255639. It was signed by one Ramniklal Ramji. In the counterfoil of that warrant of payment signature of Mr. M.B. Hoddar is also there and below it it is stated that after withdrawal, the balance of Rs.200/- remains at credit in the said account. ##. Here in this case important witness is Mr. M.B. Hoddar. He is examined at Exh. 88. At the relevant point of time Mr. Hoddar was working as Supervisor in savings department of Main post office at Porbandar and accused No.3, M.H. Balva was Accounts Clerk while Shri Kapdi was Supervisor. He has also deposed that accused No.1 was a Peon while accused No.2 Devji Lakha was Stamp Vendor. He has deposed about the procedure to be followed when account holder comes to withdraw an amount from the savings bank account. He has deposed in his evidence at paragraph 2 that if an amount sought to be withdrawn is in excess of Rs.250/- then ledger clerk has to verify the signature of person (who comes to withdraw the amount) which he had put on warrant of payment and thereafter if he is satisfied that the signature on warrant of payment matches or tallies with the specimen signature kept in post office record then that warrant of payment is to be transmitted to Dy. Post master for order of passing of payment. Thereafter Dy. Post Master will check up the application form, ledger and pass book and thereafter he will put signature in withdrawal form, and after putting a signature by Dy. Post Master, that warrant of payment will go to the cashier who will make the payment according to warrant of payment. He has admitted in cross-examination at paragraph 8 that on 9-5-1975 withdrawal form Exh. 72 along with ledger book and pass book were sent to him. Thereafter, he made a verification and checking of pass book and that pass book was found to be in order in accordance with the rules and at that time there was a balance of around Rs.4500/- at credit in that pass book. He also found that ledger book was also in order and thereafter he put signature on counterfoil of Exh. 73 and passed it for payment, and therefore when a warrant of payment Exh. 73 was tendered to him for passing orders with regard to payment, he had verified and checked the pass book, ledger book etc. That documents are not coming forth on record. Looking to his evidence, it stands to reason that there was a specimen signature of Ramniklal Ramjibhai with the post office and this responsible officer Mr. Hoddar had verified and checked the signature on warrant of payment by tallying/matching specimen signature kept in record of Post Office and when he was satisfied he passed an order of passing of payment and thus looking to an evidence of Mr. Hoddar, the payment vide Exh. 73 was made in accordance with rules but later on he has come out with a case that accused have misappropriated an amount of Rs.4500/- by colluding with each other. Initially, the complaint was lodged against him. In F.I.R., Exh. 98, his name appears as accused No.4. It is interesting to note that the Investigating Officer has not chargesheeted the case against him though his signature clearly appears in counterfoil of Exh. 73. The prosecution thought fit to favour him by citing him as a witness instead of accused. Looking to complaint Exh. 98 when he was cited as an accused his evidence is an evidence of accomplice. Naturally, he would try to save his skin and would throw burden on others. ##. Here, in this case it is an admitted fact that for both the times, firstly when an amount of Rs.370/- was withdrawn, and secondly when an amount of Rs.4500/- were withdrawn concerned officers had found that warrant of payments were found in order in accordance with rules as signatures on warrant of payments were tallying with the specimen signatures of the account holders and that warrants of payment was passed for withdrawal of Rs. 370/- and Rs.4500/-. The Dy. Post Master Mr. Hoddar had verified the ledger book, pass book and specimen signature of the account holder and after verifying and checking the records, he was satisfied that withdrawal form Exh. 73 was in order and