GOVT. APPEAL (SJ) No.24 OF 1990 (Against the Order of Acquittal dated 19th December, 1989 passed by Sri Y.P.Bhagat, Judicial Magistrate, 1st Class, Patna in G.R. No. 2328 of 1987.) STATE OF BIHAR ---------------------------------------------Appellant Versus NARAIN PRASAD, son of Banwari Lal, R/o village Manikpur, P.S. Pandarak, District Patna at present residing at Bundi Bazar, in the house of Awadhesh Kumar Verma, P.S. Chowk, Patnacity, in the town of Patna, District Patna. --------------------------------------------------Respondent For the Appellant : Mr. Jharkhandi Upadhaya, A.P.P. For the State : Mr. Satya Narayan Prasad, Advocate P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha,J: This appeal by the State of Bihar under sections 378(1) and (3) of the Code of Criminal Procedure has been preferred against the judgment of acquittal dated 19th December, 1989 passed by Sri Y.P. Bhagat, Judicial Magistrate, 1st Class, Patna, in Kotwali P.S. Case No. 689 of 1987, G.R. No. 2328 of 1987, whereby the sole accused has been acquitted of the charges under sections 419, 420, 467 and 471 IPC. The prosecution case is based on the typed report dated 20.6.1987 submitted by one Akshaybar Ram, Secretary, Bihar State Housing Board (hereinafter referred to as “the Board”) inter alia stating that the Board has an account in the United Commercial 2 Bank, Fraser Road, Patna, where Contributory Provident Fund (CPF) of its employees are deposited. It is said that on 19.6.1987, Rameshwar Lal and Sukhdeo Maharaj submitted an application to the Executive Engineer of the Board informing him that some one had illegally withdrawn money from the CPF account of the employees including these two persons on the basis of fake and forged sanction order. Accordingly, in respect thereof on 20.6.1987 the Executive Engineer sent a letter to the Secretary of the Board in pursuance whereof the written report was submitted by the Secretary of the Board. The total amount withdrawn was allegedly Rs. 37,565/- without there being any valid sanction order from the Board. It was alleged that some payment order under letter no. 815 dated 16.6.1987 sanctioning the loan withdrawal and also authorizing one Mahendra Prasad to receive payment was presented in the Bank when there was in fact no employee in Division II in the Board by the name of Mahendra Prasad. It was specifically stated that Rameshwar Lal had seen accused Shri Narain Prasad at the Bank. The informant further alleged that the withdrawal was made by the accused in conspiracy with the bank employees. It appears that in course of the investigation one T.N.Upadhaya, Additional Branch Manager of the Bank identified the accused in his office alleging him to be the man who had received payments from the Bank impersonating himself as Mahendra Prasad. On the basis of this evidence Shri Narain Prasad 3 was arrested who in course of interrogation allegedly confessed his guilt and also disclosed that he had kept the amount at his residence in a briefcase and on the basis of the said confession a sum of Rs. 36700/- kept in a briefcase was recovered from the house of the accused. Accordingly a charge sheet was submitted and cognizance was taken. Subsequently the accused was put on trial. The defence of the accused is that he had not committed any offence and the amount so recovered from his house belonged to his father who had collected the same after selling his lands and kept the same for purchasing another piece of land elsewhere. Assailing the impugned judgment it was submitted by learned A.P.P. that the learned trial court had curiously erred in recording a finding against the prosecution when the evidence on record including the confessional statement of the accused which led to the recovery of money from his residence was sufficient for recording an order of conviction. In this connection it was submitted that the Investigating Officer, Jagdish Prasad Singh (PW 11) had categorically stated that it was at the instance of one Ramayan Singh, Chief Cashier of the Bank (PW 6) who had identified the signature on the six vouchers of the respondent who had signed as Mahendra Prasad in token of receipt of the aforesaid amount in his presence which are Exts. 4/6 to 4/11 and the same was corroborated by T.N.Upadhya, the 4 Additional Manager of the Bank. In this connection it was further submitted that P.W. 13 (Prem Dayal) the handwriting expert who proved Ext. 8 , which was his adverse report, which was believed by the trial court. It was also submitted that the fact of recovery of the money from the briefcase kept at the residence of the accused having been admitted both by the prosecution and the accused, there was no scope for acquitting the accused and the learned trial court had erred in recording a contradictory order. The prosecution in support of its case examined as many as 17 witnesses. Of these PW 3 (Sukhdeo Maharaj), P.W. 5 (Sitaram Pandit), P.W. 14 (Birndra Prasad Sinha), P.W. 15 (Amol Narain Sinha) and P.W. 16 (Dhananjay Kumar) are the persons from whose account money allegedly had been withdrawn. There was also one Bajrangi Ram from whose account too money had allegedly been withdrawn but he curiously and for reasons undisclosed has not been examined by the prosecution at the trial. It appears that the prosecution has completely failed to prove the charges under sections 467 and 471 IPC. In this regard the deposition of P.W. 13 (Prem Dayal) would be relevant as would be Ext. 8 which is his report. The report indicates that “ the disputed signature in Dewnagari enclosed with red line, stamped and marked X to X/5 show an attempt at disguise by attempting different design of the letter. As such they do not afford the actual character of the letter for comparison and arriving at a different opinion. Hence no opinion is possible.” It would thus show that the 5 deposition of PW 13 as also his report does not in any way connect the accused with the aforesaid crime. Only oral evidence has been sought to be led by the prosecution through PW 9 (T.N. Upadhaya), the Additional Manager of the Bank which from the very nature of it appears to be unreliable. From the evidence of PW 9 it would appear that in his examination in chief he had stated that it was Mahendra Prasad who had brought the letters sanctioning loan of employees out of their CPF funds. This witness has identified the said Mahendra Prasad in the dock and when the person in the dock is asked to give his name he states the same to be Shri Narain Prasad. He also stated that the said Mahendra Prasad pasted the stamps on the voucher prepared by the witness and also affixed his signature thereupon as Mahendra Prasad. He identifies these signatures which have been marked as Exhibits 4/6 to 4/11. This witness also identifies the three photocopies which contained the sanction order of the Board which had earlier been marked as Ext. X/2 for identification. He also states that the main copy of these letters had not been forwarded to the Bank. This appears to be a position which cannot be reconciled with. However, in his cross examination in paragraph 15 he states that he had seen original copies of letters marked X to X/2. He also states therein that in the main copy the signature of Mahendra Prasad was not made in his presence nor had it been attested in his presence. The specimen signature of the person who had attested the signatures is available in the Bank. In paragraph 19 he stated 6 that he had not made entries in the register about receipt of the letters. He also stated that the person who had come to collect the loan amount was not accompanied by a peon of the Bank and he also submits in paragraph 20 that he had disclosed to the police the name of the persons who had come with the letter. However, the evidence of PW 9 is sought to be countered by the I.O., PW 11, who had stated in paragraph 22 that PW 9 had not named the persons who had brought the letter on 17.6.1987. PW 9 in paragraph 22 also stated that he had given the description of the person who had brought the letter and received the payment inasmuch as he had a moustache and was of short height. This again it sought to be contradicted by PW 11 in his deposition in paragraph 21. It would appear that PW 9 is a confused man and knows not what to say and when. In paragraph 7 he has stated before the Inquiring Officer that he had talked to Rameshwar Lal (PW 1) a staff of the Board and thereafter he had become satisfied about the letters but in his cross examination in paragraph 26 he denied having any talk with PW 1 or of getting the letter verified by him. PW 9”s statement of meeting with Rameshwar Lal is denied by Rameshwar Lal himself in course of his deposition in Court. Then again P.W. 6 (Ramayan Singh), the Head Cashier, does not say anything of having made any payment to the accused and PW 6 was declared to be hostile but the prosecution never sought to draw his attention to his statement under section 161 7 Cr.P.C. Then again it would appear that the deposition of PWs 1 and 3 are contradictory to each other and as such they are not reliable at all. PW 1 (Rameshwar Lal) claims to have met the accused on 18.6.1987 near the LIC building and when questioned in cross examination he could not recall to mind whether he had stated before the police about the meeting with the accused near the LIC building. The fact of the said meeting is contradicted also by the I.O. (PW 11). Similarly PW 1’s statement regarding his meeting with PW 3 (Sukhdeo Maharaj) on the evening at his house on 18.6.1987 also fails since PW 3 admits meeting with Rameshwar Lal on the road of Kankerbagh Colony which is available in paragraph 9 of his deposition . PW 3 in paragraph 9 denies of having informed any one in the office on the following day about his talks with PW 1 in the preceding evening. It will appear from the deposition of PW 11 (I.O.) that he had attempted to bring the evidence of accused under section 27 of the Evidence Act by stating that “vfHk;qDr ds ork;s x;s dejs dh ryk’kh yh” This part of the evidence unfortunately cannot be accepted since it is no where indicated that it was the accused who had actually pointed the relevant place wherefrom the briefcase containing money was recovered. Then again the I.O. in the seizure list (Ext. 6A) has not identified the actual place of recovery of the briefcase and merely states that the briefcase was kept n the top of the almirah in the room of the accused. It would also 8 appear from the seizure list that the seizure list witnesses PWs 7 and 12 did not make any endorsement on Ext. 6 that the place of recovery had been pointed out by the accused. From the contents of the briefcase which are currency notes it does not appear that the said currency notes belonged to the UCO Bank. On the contrary the sole defence witness, Banwari Lal, examined has given plausible explanation for the presence of the money in his deposition in court. This witness happens to be the father of the accused. The prosecution has not been able to extract anything in its favour during the cross-examination of this witness. It is true that P.Ws. 3, 5, 4, 15, 15 and 16 have fully supported the prosecution case. Certain documents were sought to be exhibited in support of the prosecution case, some of which were photocopies of their respective originals and notwithstanding directions to the I.O., the original could not be produced by the I.O. Although P.W. 17, the constable, in course of his examination stated that he had given four papers to I.P.Singh the then Sub Inspector of Police, Kotwali, but the originals of these 4 papers were not made available nor were placed on record. It also appears that P.Ws. 3, 5, 14, 15 and 16 have denied to have applied for sanction of advance from their C.P.F. account. In the absence of the original documents being brought on record the photocopies thereof could not be taken into account for securing the conviction of a person. When the prosecution has 9 miserably failed to prove its case by reliable evidence, both oral and documentary. In such a situation the accused is entitled to a benefit of doubt and the learned trial court has rightly acquitted him of the charges framed against him. There is apparently no illegality or impropriety in the judgment of acquittal recorded by the learned trial judge and I uphold the same. In the result the appeal fails and the same is dismissed. Patna High Court, Patna. Dated : The 20th of August, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)