IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No.134 of 2000 Date of Decision: 16th September, 2010 State of Himachal Pradesh Appellant Versus Mukesh Pathik Respondent Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Rajesh Mandhotra, Dy. Advocate General. For the respondent: Mr. G.D.Verma, Sr. Advocate, with Mr. Romesh Verma, Advocate. Sanjay Karol, J. (Oral) The present appeal is directed against the judgment dated 4.12.1999 passed by Judicial Magistrate, Ist Class, Court No.2, Rohru, District Shimla, H.P. in Police Challan No.69-2 of 1995, titled as State of H.P. vs. Mukesh Pathik , whereby the accused stand acquitted of the charged offence. 2. The case of the prosecution is that on 19.4.1993 Shri Dola Ram (PW-9) lodged a complaint (Ext.PW-9/A) stating that accused Mukesh Pathik, who was working as a clerk in the Govt. Sr. Secondary School, Rohru after forging the complainant’s signatures had withdrawn a sum of Rs.54,985/- from the Post Office on 30.12.1992. The amount has Whether the reporters of Local Papers are allowed to see the Judgment? 2 been embezzled by the accused out of the building fund account. The accused was incharge of the accounts of fees and building fund. From 24.12.1992 the school was closed for winter vacation and he proceeded for leave on 25.12.1992. After reopening of the school, when the accused handed over the pass book to the Superintendent this fact was discovered only on 17.4.1993. On the basis of this complaint, FIR No. 131/93 dated 19.4.1993 (Ext.PW-11/A) was registered against the accused at Police Station Rohru, under Section 409, I.P.C. 3. During investigation withdrawal from (Ext.P-1), pass book (Ext.P-2) and the specimen handwriting of the accused were taken by the police. The documents were sent to the handwriting expert and the report (Ext.PB) was obtained. With the completion of the investigation, the challan was presented in the Court for trial. 4. The accused was charged for having committed an offence punishable under Section 409, IPC, to which he did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined as many as 12 witnesses and the statement of the accused under Section 313, Cr.P.C. was also recorded. The Court below acquitted the accused of the charged offence. Hence the present appeal. 6. It is not in dispute that accused was posted as a Clerk in the Government Senior Secondary School, Rohru. 7. According to Shri D.R.Thakur Principal of the School, (PW-9), the alleged offence was detected on 17.4.1993 itself by Jassi Ram (PW-1). However, the complaint, was lodged only on 19.4.1993. The delay in lodging the complaint is not fatal but the prosecution has 3 failed to show as to why no action was taken in this regard for more than 2 days. 8. It is not the case of the prosecution that accused alone was incharge of the building funds. According to PW-1 Shri Nanta also used to look after the same. Shri Nanta has not been examined in the Court. Whether any action was taken against him or whether he was associated by the police during investigation or not is not clear. It is not a case of the prosecution, as is evident from the record, that during the vacation period, accused alone was Incharge of the school and managing its affairs. 9. The fact that an amount of Rs.54,985/- out of the building fund account No.581862 stood withdrawn from the Post Office cannot be disputed. It is not the case of the prosecution that accused was authorized to sign the withdrawal form and consequently had withdrawn the money from the account. It is not proved on record that it was the accused himself who had received the money from the Bank. 10. PW-1 and PW-9 specifically state that the signed form for withdrawal of the money was not handed over to the accused for withdrawal of the money. According to these witnesses accused had also not been authorized to withdraw the amount from the Post Office. In discharge of his duties withdrawal forms were also not kept by the accused. Thus accused was not entrusted with the money. 11. Even PW-1 admits that the amount in question was not withdrawn by the accused in his presence. Version of PW-9 is also to the similar effect. He could not state with certainty as to whether the accused had withdrawn the amount from the Post Office or not. In fact PW-9 admits that off and on he would give the signed withdrawal forms to 4 Geeta Ram, Mukesh, Chowkidar and Karam Chand Librarian for withdrawal of the amount from the Post Office. These witnesses have not been examined in the Court. Even though PW-9 denies his signatures on the withdrawal form (Ext.P-1), but, however, he specifically does not deny that he had not handed over a duly filled and signed form to the accused for withdrawal of money. 12. Prosecution has tried to prove the receipt of the amount by the accused through an entry made in the register (Ext.PW-1/A). Name of accused is written against the entry of the amount in the register. However, there is cutting at the relevant place and name of the accused appears to have been inserted later on in red ink. According to PW-9 this entry was made by PW-1 which fact categorically stands denied by him. 13. Further, according to Shri Hukam Chand (PW-4), employee of the Post Office before the money is paid signatures on the withdrawal form are compared with the specimen signature and on Ext.P- 1 the same were found to be that of PW-9. 14. In order to prove the fact that the accused had forged the signatures of PW-9 on the withdrawal form, prosecution has relied upon the statement of an expert Shri S.K.Saxsena, (PW-12), and his report. Importantly, specimen signatures of the Principal (PW-9) were neither obtained nor sent to the Handwriting Expert for comparision. Further, according to prosecution the specimen signatures of the accused were obtained by the police in the presence of the Executive Magistrate, Shri Rameshwar Sharma (PW-3). However, this witness does not specifically stated that specimen signatures of the accused were taken in his presence. 5 He simply states that the specimen signatures (Ext.P-1 to Ext.P-6) which were brought by the police were attested by him. 15. In Sukhvinder Singh and others vs. State of Punjab, (1994) 5 SCC 152, it is held that “the specimen writings in the instant case of the appellant were taken under the directions of Tehsildar- Executive Magistrate. No enquiry or trial was pending in his court. The direction given by the Tehsildar-Executive Magistrate to the accused to give his specimen writing was clearly unwarranted and not contemplated or envisaged by Section 73 of the Evidence Act. Failure of the accused to raise objection when he was called upon to give his specimen writing or his silence could not clothe the Tehsildar-Executive Magistrate with any jurisdiction to issue the direction as envisaged by Section 73 of the Evidence Act. The specimen writing of the accused could not, therefore, be made use of during the trial and the report of the handwriting expert, when considered in the light of the foregoing discussion, is rendered of no consequence at all and could not be used against the accused to connect him with the crime”. 16. Here the report of an expert cannot be looked into to the detriment of the accused. Thus, it could not be conclusively proved as to who had received the money from the Post Office. Thus it could not be proved that accused had dishonestly misappropriated any funds. 17. The accused has had the advantage of having been acquitted by the Court below. 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 6 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. (Deepak Gupta) Judge. 16th September, 2010 (Sanjay Karol), (C) Judge.