IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.378 of 1999 Date of Decision : July 13, 2010 State of Himachal Pradesh Appellant Versus Khushi Ram Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Addl. Advocate General for the appellant. For the respondent : Mr. B. C. Verma, Advocate, vice Mr. Pradeep Verma, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 14.5.1999 delivered by the learned Sub Divisional Judicial Magistrate, Karsog, District Mandi, H.P. in Police Challan No. 10-1 of 1997 whereby he acquitted the accused of having committed an offence punishable under Section 409 of the Indian Penal Code. 2. The admitted facts are that the accused was working as E.D.D.A in the Karsog Post Office. The prosecution case is that the accused while in government service mis-utilized his position of E.D.D.A by fraudulently putting his own thumb impression on money orders payable to certain ladies and received the amount. In all the Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 accused is alleged to have embezzled a sum of Rs. 3240/-. According to the prosecution case the accused put his thumb impressions on the money orders payable to Smt. Husnu Devi (since expired), Smt. Surmu Devi, Smt. Kesari Devi and Smt. Phul Dassi. Specimen thumb impressions of these ladies were taken during investigation and the same were sent for examination to the finger print expert at Phillaur. It appears that these thumb impressions could not be compared with the thumb impressions on the M.O. Forms since the M.O. Forms were lost during transit. The M.O. Forms also allegedly contained the hand writing which had been forged by the accused. According to the prosecution the accused had forged the hand writing of Sh. Hari Singh, Sh. Ram Dass and Sh. Hari Ram. Only Smt. Kesari Devi was examined as PW-1 who stated that she had not thumb marked the M.O. Forms. However, in cross examination she admitted that she received the pension amount of Rs. 150/- from one tall man. Sh. Hari Ram (PW-2) stated that in the months of February and March, 1991 no pension was given to Smt. Kesari Devi and he had not signed the M.O. Form as witness. 3. It has come on record that the specimen thumb impressions of the persons who are alleged to have been defrauded were sent to the finger print expert but no results were obtained. In case results could not be obtained it was for the prosecution to have again collected the thumb impressions of the persons who have been defrauded and the same should have been sent for examination by 3 the finger print expert. Primary evidence against the accused would have been the evidence to show that the ladies to whom the money orders were sent for payment of their pension had not thumb marked the alleged money order forms. This prosecution has miserably failed to do. As far as the hand writing is concerned no doubt the expert Sh. Mohinder Singh (PW-8) has stated that the writing which is purported to be in the hands of the persons who witnessed the payment of amount is not actually in their hands but in the hand of the accused, but this evidence by itself cannot be used to convict the accused. Even with regard to this evidence the original money orders as stated above were lost in transit and the original specimen signatures were also lost in transit and the expert evidence based on photocopies should not have been used. Instead the police should have again taken the specimen signatures of the persons whose hand writing is alleged to have been forged and then sent the same to the examiner of questioned documents. 4. In view of the above discussions we find no merit in the appeal of the State which is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. July 13, 2010 (PK)