Crl.A. 357/2003 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. P. Kataky, learned Counsel appearing for the appellant. The respondent is represented by Mr. A.C. Buragohain, the learned Standing Counsel for the C.B .I. 2. This Appeal is presented against the judgment and order dated 5. 11.2003 in Special Case No. 16(C)/1997, whereby the learned Special Judge, Assa m, Guwahati, has convicted the accused appellant under Sections 409/477 (A) of I PC and also under Section 13(2) read with Section 13(1)(c) of the Prevention o f Corruption Act, 1988 (hereinafter referred to as the P.C. Act ). Upon such c onviction, the appellant was sentenced to undergo S.I. for 1 (one) year and fine of Rs.2,000/- and in default, further S.I for 3 months for his conviction under Section 409 of IPC; sentenced to undergo S.I for 6 months and fine of Rs.1,000/ - and in default, further S.I. for 1 (one) month for his conviction under Sectio n 477(A) and also sentenced to undergo S.I. for 1 (one) year and fine of Rs.2,00 0/- and in default, further S.I. for 6 months, for his conviction under Section 13(2) and 13(1)(c) of the P.C. Act. 3. According to the prosecution story, the appellant served as the telegraph assistant in the Telegraph Office, Silchar from 1.1.1994 to 13.3.1995 during which, he booked telegram messages for onwards transmission and collected Rs.46,398/- from the customers. But he deposited only Rs.18,799.50 in the offic e accounts and thereby he misappropriated Rs.27,598.50. The misappropriation was done by preparing false and deflated figures, in the office copy of the receipt s i.e. M.R.-48 as well as the Journals (T.I-105). After obtaining prosecution sa nction from S.K. Kayal, the Divisional Engineer (Pay & Allowances), the competen t authority (P.W.31), the accused was chargesheeted on 31.10.1996. 4. During the trial, the prosecution examined altogether 33 witness es including the handwriting expert, whereas a solitary defence witness was addu ced by the accused. 5.1 P.W.1, C.R. Chakraborty was the Sub-Divisional Engineer, Telegra ph, who testified on the nature of the responsibilities of the accused as a Tele graph Assistant. According to the witness, the telegraph assistant is required t o receive telegraph messages from the customers and to calculate the charges for sending telegrams, by counting the number of words that are to be transmitted. The assistant is required to record the amounts received from the customers in M .R.-48 with double sided carbon and the original receipt is required to be given to the customer for acknowledging payment. The collected amount should then be deposited in the office accounts. 5.2 P.W.2 is Jagadish Chakraborty supervised the works of the accuse d in the telegraph office. According to the witness the accused prepared, the te legram booking particulars in 23 sheets (Exbt.7); the office copy of the receip t of telegram messages (Exbt.8); and also the Journal (12 sheets) (Exbt.9) refle cting the contents of Exbt.7 & 8. The concerned draft messages booked by the acc used were proved by this witness. According to the proven exhibits, the accused collected certain amount for each telegram from the customers, whereas he showed a lesser receipt amount in the journal maintained in the office. The handwritin g on the receipt(s) given to the customers and in the carbon copy of the receipt s kept as office records, were proved to be that of the accused by the P.W.2 5.3 Similarly, P.W.3 Manoranjan Roy and P.W.4 Binoy Bhusan Das have proved the handwritings of the accused on Exbt.7 to Exbt.l57.. 5.4 P.W.5 to P.W.26 were the customers who booked telegram messages to different destinations. They were issued receipts by the accused for the amou nt(s) charged from them. These witnesses proved the original telegrah messages f rom Exbt.55(1) to Exbt.55(85). Exbt.57 (87 sheets) are the office copies of th e money receipts deposited by the accused in the office. 5.5 P.W.27, P.W28 are familiar with the handwritings and signature o f the accused and have proved the handwritings and signature of the accused, on the exhibited documents. 5.6. P.W.31 as the sanctioning authority after considering the merit of the materials, gave the go ahead for prosecution of the accused. 5.7 R.S. Gupta was the handwriting expert (P.W.32) who opined that t he documents collectively marked as Exbt.55, Exbt.56 and Exbt.57 as well as th e carbon copies marked as Q-169 - Q-255 were all written by one person. The witn ess also compared the standard handwritings of the accused with the handwritings on the questioned documents and concluded that they were written by the same pe rson. 5.8 The I.O. in the case, inter-alia, gave evidence on how the seize d documents and specimen signatures were collected during the investigation. He forwarded the questioned documents to the handwriting expert for his opinion. 6. Mr. P.C. Kataky, the learned Counsel argues that the carbon copi es of the original receipts was not prepared in the same process and accordingly they can’t be considered as primary evidence. The Counsel tries to project that prosecution has failed to prove insertion of a lesser amount on the carbon copi es of the receipts and accordingly he contends that the charge of misappropriati on, has not been proved in the case. 7. However Mr. A.C. Buragohain, the learned Standing Counsel, CBI h as referred to the evidence of the handwriting expert (P.W.32) to show that Q-16 9 - Q-255 (Exbt.57) are the carbon copies of the receipts kept for office recor ds and according to the handwriting expert, these were written by one and the sa me person. He submits further that even from other evidence the case is proved t o the hilt. Accordingly Mr. Buragohain contends that the accused was rightly con victed by the Trial Court. 8. In order to appreciate the rival arguments, I have examined the evidence on record and more particularly the evidence given by P.W.2, P.W.3 and P.W.4, who have proved the handwriting of the accused in the exhibited documents . The handwriting expert (P.W.32) has testified that the handwritings on the rec eipts given to the customers are in the hands of the accused and the carbon copi es of the receipts kept in the office were also written by the accused. The hand writings and the signatures of the accused on the telegraph message forms and mo ney receipt(s) issued to the different customers were also proved by these witne sses. The evidence of the paying customers (P.W.5 to P.W.26) have also been cons idered. 9. From the evidence on record, it is apparent that the accused had recorded a lesser amount in the carbon copies of the receipts (Exbt.57) kept in the Telegraph office and through this process, although Rs.46,398/- was collec ted as telegram charge from the customers, a lesser amount of Rs.18,799.50 was d eposited in the office account by the accused. 10. P.W.4, Binoy Bhusan Das was the cashier in the Telegraph office. The Assistants manning the counter in the telegraph office used to hand over t he collection from the customers to P.W.4 and as the cashier, after verifying th e amounts from the carbon copies of the M.R.-48 receipts and the journals, the a mounts tendered by the counter assistants were kept in the office cash box. He p roved the handwritings and the amounts mentioned in the concerned carbon copies of the receipts as those prepared by the accused. 11. Bearing in mind the evidence of P.W.2, P.W.3 and P.W.4 and also the testimony of the handwriting expert (P.W.32) it is apparent that during the relevant period the accused while being entrusted with the telegram charges ten dered by the customers, has misappropriated part of the amount and accordingly i s rightly convicted under Section 409 and Section 13 of the P.C. Act. Over a per iod of time, as the Telegraph Assistant, the appellant skimmed off a part of the charges realized from the telegram customers, as is seen from the evidence of P .W.5 to P.W.26. Moreover since he resorted to forgery of the figures on carbon c opies of the receipts, his conviction under Section 477(A) of the IPC in my view , was rightly ordered by the learned Trial Court. 12. Because of the above conclusion, this Appeal is found to be devo id of any legal merit and the same is accordingly dismissed. As the accused is c urrently on bail, his bail bond is cancelled and he may surrender before the Spe cial Judge, Assam, Guwahati on or before 21.11.2011 to serve out his sentence. T he benefit of set off be given to him. 13. Send down the L.C.R. immediately.