RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.108 of 2006 (Old No.1476 of 1989) R.S. Pandey S/o Kamta Prasad Pandey, R/o Vill. Birsinghpur, P.S. Bhiti, Distt. Faizabad, Working as Assistant Spinning Master, Lord Krishna Textile Mill (NTC), Saharanpur ………….Appellant Versus The State …….. Respondent Dated: June 10, 2008 Km. Vijay Laxmi, learned amicus curiae for the appellant Sri Harish Pujari, learned Addl. G.A. for the State/Respondent HON. DHARAM VEER, J. This appeal, preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 01.06.1989 passed by Special Judge, Anti Corruption, U.P. (East), Dehradun, in C.B.I. Case No.7/83, CBI Versus R.S. Pandey & another, whereby the learned Special Judge has convicted the appellant R.S. Pandey under Sections 420/468 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and also under Section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) (hereinafter to be referred as the Act). The appellant was awarded sentence of one year’s R.I. u/s 420 IPC and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo six month’s further R.I. The appellant/accused R.S. Pandey was further awarded sentence of one year’s R.I. under section 468 IPC and fine of Rs.5,000/- and in default of payment of fine, to undergo R.I. 2 for further six months’. The appellant was further sentenced to undergo one year’s R.I. u/s 5(2) of the Act and fine of Rs.5,000/- and in default of payment of fine, to undergo six months’ further R.I. All the sentences were also directed to run concurrently. However, the appellant R.S. Pandey was acquitted of the charge punishable u/s 120-B of IPC. Co- accused S.K. Garg was found not guilty u/s 120-B IPC, 420 IPC, 471 IPC r/w 468 IPC and Section 5(2) of the Act and was acquitted of the same. 2. I have heard Km. Vijay Laxmi, learned amicus curiae for the appellant and Sri Harish Pujari, learned Additional G.A. for the State and perused the entire material available on record. 3. In brief, the prosecution case is that Daya Sagar Sharma, appellant/accused R.S. Pandey, Kishan Lal Gulathi & Surendra Kumar Garg while posted and functioning as Manager Administration, Assistant Spinning Master cum Modernization In-charge, Assistant Accountant and Cashier, Lord Krishna Textile Mill, NTC, Saharanpur, respectively during the year 1981, entered into a criminal conspiracy with each other with the object of committing offences of cheating, forgery and criminal misconduct. In pursuance of the said criminal conspiracy following acts of omissions and commissions were committed by them: - 4. Appellant/accused R.S. Pandey falsely prepared five fake recommendatory letters under his signatures for making payment of a sum of Rs.11,800/- to four fictitious persons as per details given below: - No. of Voucher Amount Name of Payee Verified by Sanctioned by 1. 21 (18.4.81) 2000/- Sri Vipin Kumar Sri R.S. Pandey Sri D.S. Sharma 2. 20 (18.4.81) 3000/- Sri Chandra Shekhar -do -do- 3. 19(18.4.81) 3200/- Sri Gurucharan -do -do- 4. 85 (11.8.81) 1600/- -do- -do -do- 5. 84 (11.8.81) 2000/- Sri Vipin Surti -do -do- 3 5. The signatures of G.C. Jain, Spinning Master showing verification of work were also forged on the letter of recommendation prepared by appellant/accused R.S. Pandey. Sri D.S. Sharma passed payment under his signatures on these fake letters in favour of fictitious persons whereas neither any such work was carried out by them nor any such contract was awarded to them. The payment vouchers were passed for payment by K.L. Gulathi, although he was not competent to do so. The payment of the fictitious persons was made by Sri S.K. Garg on identification of appellant/accused R.S. Pandey, although Sri Pandey himself forged the signatures of these fictitious persons. 6. In this way, D.S. Sharma, appellant/accused R.S. Pandey, K.L. Gulathi & S.K. Garg, in conspiracy with each other and some unknown persons by corrupt or by illegal means or by otherwise abusing their official position as public servant caused pecuniary advantage to the tune of Rs.11,800/- and cheated National Textile Corporation, Lord Krishna Textile Mills Saharanpur, a Govt. of India Undertaking. On the basis of this FIR lodged by Superintendent of Police, CBI/SPE/ Dehradun on 18.5.1982 at 4:40 P.M., the case was registered against the appellant/accused R.S. Pandey and other co-accused persons u/s 120-B/420/468/471 IPC and u/s 5(2) r/w 5(1)(d) of the Act, the FIR is Ex.Ka-62. During the course of investigation, the I.O. collected the relevant papers and also taken signatures for the handwriting expert and also prepared seizure memo, i.e. Ex.Ka-63. The I.O. also took the specimen signatures/handwritings of P.W.2 G.C. Jain i.e. Ex.Ka.64/1 to Ex.Ka-64/6; specimen signatures of P.W.6 Chander Shekher Ex.Ka-65/1 & Ex.Ka.65/2; specimen handwritings/ signatures of appellant/ accused R.S. Pandey i.e. Ex.Ka.66/1 to Ex.Ka.66/23 & 4 Ex.Ka-67/1 to Ex.Ka.67/12; specimen writings/signatures of P.W.5 Guru Charan Dubey Ex.Ka-68, Ex.Ka-68/2, Ex.Ka.68/3 and Ex.Ka.68/4. The I.O. during the course of investigation also took the sanction for prosecution of appellant/accused R.S. Pandey from Chairman-cum- Managing Director, National Textile Corporation (UP) Ltd., Kanpur, that sanction is Ex.Ka.28. The I.O. during the course of investigation, apart from other relevant documents, also took in his possession the disputed documents i.e. Ex.Ka-29, Ex.Ka.30, Ex.Ka-31, Ex.Ka.32, Ex.Ka-33, Ex.Ka-34, Ex.Ka.35, Ex.Ka-36, Ex.Ka-37 and Ex.Ka-38. The documents of the case were also sent to Government Examiner for the purpose of examination and Sri R.P. Singh, Govt. Examiner of Questioned Documents & Sri D.D. Goel, Assistant Govt. Examiner of Questioned Documents, submitted their joint report, i.e. Ex.Ka-58. P.W.8 D.D. Goel, Assistant Govt. Examiner of Questioned Documents, also given the reasons for his opinion by his report, i.e. Ex.Ka-59. After completing the investigation, the I.O. submitted the charge sheet in the court of Special Judge, Anti Corruption, U.P. (East) Dehradun against the appellant/accused R.S. Pandey and one another co-accused S.K. Garg u/s 120-B/420/468/471 IPC and also u/s 5(2) r/w 5(1)(d) of the Act, that charge sheet is Ex.Ka-69. 7. On 22.06.1984, the charge was framed against the appellant/accused R.S. Pandey by Special Judge, Anti Corruption, U.P. (East), Dehradun under Section 120-B I.P.C.; u/s 420 I.P.C.; u/s 468 I.P.C. and under Section 5(1)(d) punishable under Section 5(2) of the Act. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. The charge was also framed against the co-accused S.K. Garg under Section 120-B I.P.C.; u/s 420 r/w 109 I.P.C.; u/s 471 r/w Section 468 I.P.C. and under Section 5(1)(d) punishable under Section 5(2) of the Act. 5 8. To prove its case, the prosecution examined P.W.1 R.S. Sharma, Secretary to Chairman cum Managing Director, National Textile Corporation, U.P. Kanpur; P.W.2 is G.C. Jain, Spinning Superintendent, Lord Krishna Textile Mill, Saharanpur; P.W.3 is P.N. Batra, Head Time Keeper, Lord Krishna Textile Mill, Saharanpur; P.W.4 is Suresh Chandra Aggarwal, Accounts Clerk, Lord Krishna Textile Mill, Saharanpur; P.W.5 Guru Charan Dubey, Fitter, Lord Krishna Textile Mill, Saharanpur; P.W.6 Chandra Shekhar, Bunkar, Lord Krishna Textile Mill, Saharanpur; P.W.7 Daya Sagar Sharma, Manager Administration, Lord Krishna Textile Mill, Saharanpur; P.W.8 D.D. Goel, A.G.E. & Q.D.; P.W.9 O.S. Bhatia, Chief Finance Manager, National Thermal Power, Allahabad and P.W.10, S.R. Jaiswal, Additional Director Vigilance/I.O. of the case. 9. After that the statement of the appellant/accused R.S. Pandey was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question and answer form. In reply, he has admitted that in the year 1981, he was posted in Unit Lord Krishna Textile Mill, Saharanpur as Assistant Spinning Master, but he has denied the rest of the allegations made against him and stated that he has been falsely implicated due to enmity. In oral evidence, he got examined D.W.1 Sushil Kumar and D.W.5 Dr. H.L. Bami. D.W. 2 S.C. Sachdeva, D.W.3 Praduman Kumar, D.W.4 Harbansh Lal and D.W.6 Hukum Chand Garg, were the oral witness got examined by co-accused S.K. Garg. The appellant/accused in support of documentary evidence produced documents i.e. Ex. Kha, Ex.Kha-1 to Ex.Kha-10 and Ex.D.E.-1. 10. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Special Judge, Anti Corruption, U.P. (East), Dehradun vide his judgment and order dated 1.06.1989 has 6 convicted the appellant R.S. Pandey under Sections 420/468 of I.P.C. and also under Section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947). The appellant was awarded sentence of one year’s R.I. u/s 420 IPC and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo six month’s R.I. The appellant was further awarded sentence of one year’s R.I. u/s 468 IPC and fine of Rs.5,000/- and in default of payment of fine, to undergo R.I. for further six months. The appellant was further sentenced to undergo one year’s R.I. u/s 5(2) of the Prevention of Corruption Act, 1947 and fine of Rs.5,000/- and in default of payment of fine, to undergo six months’ further R.I. All the sentences were also directed to run concurrently. However, the appellant R.S. Pandey was acquitted of the charge punishable u/s 120-B of IPC. Co-accused S.K. Garg was found not guilty u/s 120-B IPC, 420 IPC, 471 IPC r/w 468 IPC and Section 5(2) of the Act and he was acquitted of the same. Feeling aggrieved by the aforesaid judgment and order dated 01.06.1989, the appellant/accused R.S. Pandey has come up in appeal. 11. To prove its case, the prosecution has examined P.W.1 R.S. Sharma, Secretary to Chairman cum Managing Director, who has been examined to prove the sanction order for prosecution of the appellant-accused R.S. Pandey and also of co-accused S.K. Garg, being a public servant, the sanction is Ex.Ka.28. The sanction was given and accorded by B.S. Sandhu, Chairman cum Managing Director and he typed the letter on the dictation of B.S. Sandhu. Sri B.S. Sandhu accorded the sanction after reading all the connected papers of this case. 12. P.W.2 is G.C. Jain, who was the Spinning Master in Lord Krishna Textile Mill, Saharanpur and he had entrusted the work of modernization of the machine to appellant/accused R.S. Pandey. He was examined to prove that all the bills i.e. Exs.Ka.29, Ka.31, Ka.33, Ka-35 and 7 Ka.37 were under his forged signatures and the said forged signatures were made by appellant/accused R.S. Pandey. He was also said to be acquainted with the signatures of appellant/accused R.S. Pandey, who was working under him. He also stated that on all these forged bills and vouchers, his signatures were forged. 13. P.W.3 is P.N. Batra who was the Head Time Keeper in Lord Krishna Textile Mill, Saharanpur since 1977. He has been examined to prove that the vouchers were prepared in the name of Vipin Kumar, Vipin Surty and Gurcharan, who were the fictitious persons and no such persons were in the employment of the said Mill as per the record. 14. P.W.4 is Suresh Chandra Agarwal who was the Accounts Clerk in the aforesaid Mill. He had prepared two vouchers i.e. Ex.Ka-30 and Ex.Ka-32. 15. P.W.5 is Gurcharan Dubey who was the Fitter in the said Mill and he has been examined to prove that the vouchers and bills in the name of Gurcharan were fictitious and he had never undertaken any work of the said Mill and no any other person of his name was in the employment of the said mill and he is known with the name of Gurcharan Dubey. 16. P.W.6 is Chandra Shekhar who has stated that he was working on the post of Bunkar in the said Mill and he has never done any work relating to modernization. He also stated that he had neither received any payment nor he had moved any application for the payment and his signatures were forged on the papers produced in the file. He also stated that no any other person of his name was in the employment of the said mill. 8 17. P.W.7 is Daya Sagar Sharma who was the Manager (Administration) in the said Mill and his signatures on the bills (Ex.Ka-29, Ka-31, Ka-33, Ka-35 and Ka-37) were alleged to have been forged and to prove the same this witness had been produced, who has stated that his signatures on the above-mentioned bills were not genuine but were forged. He also stated that he was well acquainted with the handwriting of appellant/accused R.S. Pandey and his signatures shown on Bills i.e. Ex.Ka-29, Ka-31, Ka-33, Ka-35 and Ka-37) were actually forged by appellant/accused R.S. Pandey himself. 18. P.W.8 is D.D. Goel who was the Assistant Government Examiner of Questioned Documents. He had examined the writings of all the persons connected with the bills and the vouchers. He has given his evidence to the effect that the signatures on the bills were not genuine signatures of P.W.2 G.C. Jain, P.W.7 Daya Sagar Sharma and P.W.9 O.S. Bhatia and their signatures were actually forged. This expert witness has given specific opinion in regard the fact that on the vouchers, appellant R.S. Pandey had written himself ‘verified’ under his initials and all the five bills were also prepared in the writing and signatures of appellant/ accused R.S. Pandey. 19. P.W.9 is O.S. Bhatia, who was the Manager Finance & Accounts in the said Mill. He has stated that payment of the vouchers Exs.Ka-30, Ka-32, Ka-34 and Ka-36 were made without his sanction, though the sanction was required. 20. P.W.10 is S.R. Jayaswal, Investigating Officer of the case. He has stated that from the year 1976 to April, 1985, he was posted as Dy. S.P. CBI, Special Police Establishment, Dehradun. This case was registered on 18.5.1982 as per the orders of Sri Tilak Kak, 9 the then S.P. CBI. He also identified the signatures of Sri Tilak Kak of FIR i.e. Paper No.5/A, i.e. Ex.Ka-62. During the course of investigation, he recorded the statements of witnesses and for taking the documents in his possession, he prepared a seizure memo i.e. Ex.Ka-63. He also took the specimen writing of S.K. Garg i.e. Ex.Ka-15 to Ex.Ka-19 and specimen writing of G.C. Jain i.e. Ex.Ka-46 to Ex.Ka-48. He also took the specimen writing of G.C. Jain i.e. Ex.Ka-41 to Ex.Ka-46 which is File No.8/1983. He also filed the photocopy of this specimen handwriting i.e. Ex.Ka-64/1 to Ex.Ka-64/6. He also taken the specimen writing of Chandra Shekar i.e. Ex.Ka-65/1 to Ex.Ka.65/2 and specimen signature and writing of appellant/ accused R.S. Pandey i.e. Ex.Ka-66/1 to Ex.Ka-66/23. Specimen signature and writing of appellant/accused R.S Pandey is also in connected File No.8/83 which is Ex.Ka-77/1 to Ex.Ka-77/12, the photocopy was filed in this case i.e. Ex.Ka-67/1 to Ex.Ka-67/12. He also took the specimen writing and signature of Gurcharan Dubey i.e. Ex.Ka-68/1 to Ex.Ka-68/4. All the specimen handwriting and signatures were sent to the handwriting expert for the expert opinion. He also took the sanction for the prosecution of the appellant/ accused R.S. Pandey and other co-accused. After completing the investigation, he submitted the charge sheet i.e. Ex.Ka-69. 21. After that the statement of the appellant/accused R.S. Pandey was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question and answer form. In reply, he has admitted that in the year 1981, he was posted in Unit Lord Krishna Textile Mill, Saharanpur as Assistant Spinning Master, but he has denied the rest of the allegations made against him and stated that he has been falsely implicated due to enmity. In oral evidence he has examined D.W.1 Sushil Kumar and D.W.5 Dr. H.L. Bami. D.W. 2 S.C. Sachdeva, D.W.3 Praduman Kumar, D.W.4 10 Harbansh Lal and D.W.6 Hukum Chand Garg, were the oral witness got examined by co-accused S.K. Garg. The appellant/accused in support of documentary evidence produced documents i.e. Ex. Kha, Ex.Kha-1 to Ex.Kha-10 and Ex.D.E.-1. 22. D.W.1 is Sushil Kumar, who has been examined by the appellant/accused R.S. Pandey in his defence. The evidence of this witness does not create any doubt in the prosecution story, as such the same is not at all helpful to the appellant/accused. 23. D.W.5 Dr. H.L. Bami has only given his opinion in regard the signatures of P.W.2 G.C. Jain and P.W.9 O.S. Bhatia on all the five bills stating that these signatures were genuine signatures of G.C. Jain and O.S. Bhatia and were not forged. However, besides the signatures of G.C. Jain and O.S. Bhatia, there were also forged signatures of other persons on the said bills about which the expert of the defence has not given any opinion at all. Moreover, there was specific opinion of the expert of the prosecution that signatures of P.W.6 Chandra Shekhar, payee were forged by appellant R.S. Pandey on voucher i.e. Ex.Ka-36 and the said opinion of the prosecution expert was not contradicted by the defence expert. Both G.C. Jain and O.S. Bhatia themselves denied their signatures on all the bills and stated that their signatures were forged and the evidence of this expert on behalf of the prosecution also corroborates these witnesses. Thus, the defence witness has only given the evidence to the effect that the signatures of P.W.2 G.C. Jain and P.W.9 O.S. Bhatia on all the five bills were not forged signatures but the genuine signatures as per the opinion of this expert. 24. The prosecution story is based on five vouchers and five bills which may be detailed as under: - 11 A. Voucher (Ex.Ka.30) for Rs.2,000 dated 11.4.81 in favour of Vipin Surty. B. Voucher (Ex.Ka-32) for Rs.1600/- dated 11.4.81 in favour of Gurcharan. C. Voucher (Ex.Ka-34) for Rs.3200/- dated 18.4.81 in favour of Gurcharan. D. Voucher (Ex.Ka-36) for Rs.3000/- dated 18.4.81 in favour of Chandra Shekhar E. Voucher (Ex.Ka-38) for Rs.2000/- dated 18.4.81 in favour of Vipin Kumar. 25. The five bills or payment invoices which were alleged to have been prepared falsely with forged signatures are detailed as under: - A. Bill (Ex.Ka-29) dated 6.4.1981 which was alleged to have been prepared and signed by appellant/accused R.S. Pandey showing the completion of work relating to Shaft change, mounting, grinding base wire and the said work being completed by Vipin Surty and verifying the payment be to him of Rs.2000/-. B. Bill (Ex.Ka-31) dated 10.4.81 was prepared and signed by appellant/accused R.S. Pandey verifying that the work done by Gurcharan for which payment of Rs.1600/- be made to him. C. Bill (Ex.Ka-33) dated 15.4.81 was also prepared and signed by appellant/accused R.S. Pandey certifying that the work was done by Gurcharan and the payment of Rs.3200/- be made to him. 12 D. Bill (Ex.Ka-35) dated 15.4.1981 was also prepared and signed by appellant/accused R.S. Pandey verifying that the work was done for repairs of machine by Chander Shekhar and the payment of Rs.3000/- be made to him. E. Bill (Ex.Ka-37) dated 18.4.1981 was also prepared and signed by appellant/accused R.S. Pandey verifying that the work was done by Vipin Kumar and the payment of Rs.2000/- be made to him. 26. It was alleged by the prosecution that no any work was undertaken by any person and all the bills were prepared falsely under the forged signatures of the Officers of the said Mill. Further, the vouchers were also got prepared on the basis of all these false bills and payments were received by the fictitious persons under forged signatures by appellant/ accused R.S. Pandey, who had verified those persons falsely before the Cashier. 27. Km. Vijay Laxmi, learned amicus curiae for the appellant argued that prosecution has not proved its case against the appellant beyond reasonable doubt. The argument advanced by learned amicus curiae has not force. From a perusal of the five bills referred to above, it is proved that that they were written in the handwriting and signatures of appellant/accused R.S. Pandey as alleged by the prosecution. In order to prove the same, the prosecution examined P.W.2 G.C. Jain and P.W.9 O.S. Bhatia, officers of the Mill, who categorically stated that their signatures were forged on all the five bills. Besides, there is independent witness of Government Expert P.W.8 D.D. Goel to the effect that those bills were written in the writing of appellant/accused R.S. Pandey and the signatures on the 13 bills were also forged by appellant/accused R.S. Pandey. In order to see whether those bills were false one, the prosecution examined those persons who were named in these bills having undertaken the work on behalf of the Mill. P.W.5 Gurcharan Dubey has stated in his evidence that his name has been falsely shown in Bill (Ex.Ka-33) for having undertaken the work and he neither did any work nor received any payment for the same. Likewise, P.W.6 Chandra Shekhar, who was also shown in Bill (Ex.Ka.35) having undertaken the work and he also stated that he did not undertake any work and his name was falsely shown in the said bill. As all the five bills were written and signed by the same person which have been written and signed by appellant/accused R.S. Pandey, therefore, it was not difficult to ascertain the person by getting the handwriting examined by the Expert. P.W.8 D.D. Goel, is an independent and impartial person and was having no inimical relation with anyone being a public servant. He has given independent opinion that all the five bills marked (Exs.Ka-29, Ka-31, Ka- 33, Ka-35 and Ka-37) were written and signed by appellant/accused R.S. Pandey. P.W.8 D.D. Goel has taken specimen, disputed and admitted signatures of all the connected persons and after having thoroughly examined the signatures, he has given his independent opinion. There is no reason to disbelieve this independent witness. Moreover, the evidence of P.W.2 G.C. Jain and P.W.9 O.S. Bhatia also corroborates the evidence of P.W.8 D.D. Goel. It is thus proved beyond doubt that all the five bills were actually prepared and signed by appellant/accused R.S. Pandey. The persons in whose names bills were issued, had actually not done any work for the Mill, thus these were the false bills. There is clear evidence on record given by P.W.2 G.C. Jain and P.W.9 O.S. Bhatia that no any work as mentioned in these bills, was ever undertaken by them during the relevant period and even the payments were received by the fictitious 14 persons. Besides this, the bills referred to above were prepared for payment in the names of Vipin Kumar, Chander Shekhar, Vipin Surty and Gurcharan and there is a specific evidence of the prosecution that they were all shown as fictitious persons and payments received under their false names. The prosecution also proved in this connection P.W.3 P.N. Batra who has stated that there was no any person in the name of Vipin Surty working in the Mill and the name of Gurcharan which is shown in the bill, had never done work on the machine. P.W.5 Gurcharan Dubey was examined by the prosecution who has stated that there was no person in the name of Gurcharan who had done any work on behalf of the Mill and it was Gurcharan Dubey who had previously worked for the Mill but this work which has been shown in Bills (Exs.Ka-31 and Ka-33) was never done by him nor he had received any payment as shown in vouchers or payment invoices Exs.Ka-32 and Ka-34. According to the deposition of this witness, the bills (Exs.Ka-31 and Ka-33) as well as the vouchers (Exs.Ka-32 and Ka-34) were prepared under the false and forged names. P.W.6 Chandra Shekhar has also been examined by the prosecution to prove that he had not undertaken any work for the Mill and the same has falsely been shown in Bill (Ex.Ka-35) and in payment voucher (Ex.Ka.36). He has made a specific statement to the effect that his signatures on the voucher (Ex.Ka-36) was forged by appellant/accused R.S. Pandey himself. The statement of this witness is fully corroborated by the report of P.W.8 D.D. Goel, who has given the specific opinion that signatures of Chandra Shekhar were forged by appellant/accused R.S. Pandey on Voucher Ex.Ka-36). It is pertinent to mention that P.W.8 D.D. Goel has given