IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 43879 of 2010 and CRR No.1078 of 2010 Date of decision: 26.8.2010 Ramesh Chander …. Petitioner Versus State of Haryana …. Respondent Present : Mr. P.S. Jammu, Advocate for the applicant/ petitioner. Mr. Pawan Singh, AAG, Haryana. *** S.S. SARON, J. Crl. Misc. No. 43879 of 2010 The application has been filed for taking up the case just after urgent cases as since the last five-six dates, the case could not be taken up. The case is to be taken up for hearing today itself. Crl. Misc. stands disposed of. CRR No.1078 of 2010 Heard counsel for the parties. Ramesh Chander (petitioner) has filed the present revision petition against the order dated 19.3.2010 passed by the learned Additional Sessions Judge, Karnal whereby the appeal filed by the petitioner against his conviction for the offence under Section 408 Indian Penal Code (IPC- for short) and sentence of imprisonment for 3 years; besides, to pay a fine of Rs.5000/- and in default of payment of fine, to undergo rigorous Crl. Misc. No. 43879 of 2010 and [2] CRR No.1078 of 2010 imprisonment for a period of one month as also make payment of Rs.5 lacs to the Balera Co-operative Credit Society, Balera passed by the learned Judicial Magistrate Ist Class, Karnal, has been dismissed. The petitioner was working as Secretary of the Balera Co- operative Credit Society, Balera (“Society” – for short). It is alleged that he misappropriated an amount of Rs.3,58,155.30P of the Society. The said amount had been received by the petitioner from various members of the Society, but was not credited to the accounts of the Society. Accordingly, a show cause notice was issued to him and he was asked to deposit the amount within a specified period. The amount, however, was not deposited by the petitioner. Therefore, a FIR was got registered against him at the instance of Assistant Registrar, Co-operative Societies, Karnal (PW-1). The case was investigated and the petitioner was arrested. After completion of investigations, police report in terms of Section 173 of the Code of Criminal Procedure was filed. The petitioner was charged for the commission of an offence punishable under Section 408 IPC. The prosecution in order to establish its case examined as many as 23 witnesses. The evidence of the prosecution was closed by the learned trial Court vide order dated 8.6.2008 as the prosecution despite availing sufficient opportunities had failed to produce its witnesses. The learned Judicial Magistrate, Ist Class, Karnal after considering the evidence and material on record in terms of his judgment and order dated 16.04.2009 came to the conclusion that the prosecution had successfully proved its charges against the petitioner. It was held that the petitioner while working as Secretary of the Society, misappropriated an amount of Rs.3,58,155.30p. Accordingly, he was held guilty for the offence Crl. Misc. No. 43879 of 2010 and [3] CRR No.1078 of 2010 for which he was charged and was sentenced to undergo rigorous imprisonment for a period of three years, besides, pay a fine of Rs.5000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of one month. The petitioner was also ordered to pay a fine of Rs.5,00,000/-. Against the said order of conviction and sentence, the petitioner filed an appeal before the learned Sessions Judge, Karnal. The learned Additional Sessions Judge, Karnal to whom the appeal was assigned vide judgment and order dated 19.03.2010 dismissed the same. The petitioner aggrieved against the said judgment and order of the learned Additional Sessions Judge, Karnal, has filed the present petition. Learned counsel appearing for the petitioner has submitted that the petitioner has been falsely implicated and he is liable to be acquitted for the offences attributed to him. It is submitted that in any case, the benefit of probation is liable to be extended to him as he is not a previous convict. The petitioner was working as Secretary of the Society and the allegations against him are that he misappropriated an amount of Rs.3,58,155.30p. A letter dated 31.12.1997 was served on the petitioner and he was informed that as per page 70 of the cash book, the said amount was due towards him. The cash book was examined by the Assistant Registrar Cooperative Societies, Karnal (PW-1) on 17.03.1998. The Assistant Registrar after examination of the record came to the conclusion that the petitioner had misappropriated the amount in question for his personal use. The amount that had been misappropriated was the amount which the petitioner had received from various members of the Society and was liable to be deposited in the accounts of the Society but was not deposited. The Assistant Registrar, Cooperative Societies, Karnal appeared as PW-1 and Crl. Misc. No. 43879 of 2010 and [4] CRR No.1078 of 2010 submitted that the petitioner had received the amount from 16 members of the Society and receipt of the amount received was issued by the petitioner, besides, 17 bags of DAP and 28 bags of Urea worth Rs.34,174/- were sold by the petitioner on 06.11.1997 and the amount was misappropriated. Similarly on 07.11.1997, 8 bags of DAP and 31 bags of Urea amounting to Rs.8,993/- were sold, but the amount was not deposited with the Society. It is contended on behalf of the petitioner that the prosecution had failed to prove the signatures of the petitioner on the alleged cash receipts. Therefore, it cannot be held that the amount as alleged was received by the petitioner from various members of the Society. In this regard it may be noticed that the learned Trial Court referred to the statement (Ex.PW-14/A) of the petitioner recorded in Court according to which the petitioner did not agree to give his specimen signatures for the purpose of comparison with his alleged signatures on the cash receipt book. Therefore, it was observed that he cannot wriggle out of his liability by alleging that his signatures on the cash receipt book have not been proved. Perusal of the cash book it was observed that on 28.10.1997, an amount of Rs.21,375/- was received by the petitioner from Hardev Pal Singh (PW-11). On the same date, an amount of Rs.13,200/- was received by the petitioner from Daler Singh. Besides, an amount of Rs.15,000/- was received by the petitioner from Mohinder Singh (PW-14) also on the same day. An amount of Rs.19,860 was received by the petitioner on 06.11.1999 from Salim (PW- 5). An amount of Rs.42,660/- was received by him on 06.11.1997 from Inam (PW-6). The cash book revealed that the above said amounts had not been entered and accounted for in the cash book and were not deposited by the petitioner in the accounts of the Society. He had also failed to show as Crl. Misc. No. 43879 of 2010 and [5] CRR No.1078 of 2010 to with whom the said amount was deposited. Accordingly, it was held that an amount of Rs.3,58,155.30p though had been received by the petitioner from various members of the Society but was not credited to the accounts of the Society. According to learned counsel for the petitioner, the police had taken photocopy of the record, which was filed and the original was not filed. It is stated that the record was taken from Ram Phal (PW-2) Clerk of the Office of Assistant Registrar Cooperative Societies, Karnal and failure to produce and prove the original record, vitiates the prosecution case. Perusal of the order of the learned trial Court, however, shows that Ram Phal (PW-2) is the Clerk of the Office of Assistant Registrar Cooperative Societies, Karnal and in his presence official record was taken in custody by the Police vide memo (Ex.PC). The copy of the Inquiry Report No.533 dated 12.01.1997 has been proved on record as Ex.PB and copy of inquiry report No.389 dated 03.12.1997 has been proved on record as Ex.PE. It is not shown as to whether any objection was raised with regard to admissibility of the document at the time of the same being exhibited. In R.V.E. Venkatachala Gounder versus Arulmigu Viswesaraswami & V.P.Temple and another (2003) 8 SCC 752 it was held by the Supreme Court that objection directed not against the admissibility of the document but against the mode of proof thereof on the ground of irregularity or insufficiency, can be raised when the evidence is tendered but not after the document has been admitted in evidence and marked as an exhibit. Besides, it is also not shown as to whether the documents in the manner that they have been exhibited had occasioned a failure of justice or caused any prejudice to the petitioner. Crl. Misc. No. 43879 of 2010 and [6] CRR No.1078 of 2010 Further contention that has been raised by the learned counsel for the petitioner is that Hardev Pal Singh (PW-11), Varinder (PW-12), Asa Ram (PW-13) have not supported the prosecution case. It may be noticed that Hardev Pal Singh (PW-11) deposed before the learned trial Court that an amount of Rs.21,000/- approximately was deposited by him with the petitioner vide receipt dated 28.10.1997. Varinder (PW-12) stated that he had taken a loan of Rs.18,000/- from Society. The total amount including interest was deposited by him about four years ago with the petitioner. Asa Ram (PW-13) stated that he was a member of the Society for the last 20-22 years and the loan which he had taken was repaid by him about 12-13 years ago. He was declared hostile and was cross-examined by the learned Public Prosecutor. He was confronted with his earlier statement recorded by the police wherein he had stated that on 03.11.1997, the petitioner visited his house and an amount of Rs.18500/- was paid to him vide receipt No.57 dated 03.11.1997. The said statement was disowned by Asa Ram (PW-13). In any case, the same is not of much consequence as both the Courts below have consistently held the case against the petitioner to be established. The learned Additional Sessions Judge, Karnal in her impugned order observed that entries at page 70 of the day book dated 03.11.1997 (Ex.PW-1/A) clearly show that the petitioner had given an undertaking that the amount of Rs.3,58,155.30p would be deposited by him in cash. The petitioner’s signatures were not compared, but the trial Court record shows that he had refused to give his specimen signatures before the Magistrate. The police, therefore, could not get the comparison done. The learned Additional Sessions Judge, Karnal further observed that a perusal of the signatures of the petitioner on the entry Ex.PW-1/A with the various documents available Crl. Misc. No. 43879 of 2010 and [7] CRR No.1078 of 2010 on the record i.e. signatures on the charge sheet, signatures on the power of attorney and the signatures on his statement recorded by the Magistrate regarding his willingness to give specimen signatures showed that the signatures on the undertaking Ex.PW-1/A were that of the petitioner. It was held that Section 73 of the Evidence Act authorizes to the Court to make a comparison and reach an independent conclusion even when there was no report of a document expert. In State of Gujarat versus Vinaya Chandra, AIR 1967 SC 778, it was observed by the Supreme Court that a Court can compare disputed writing of a person with others which are admitted or proved to be his writing. An opinion of a handwriting expert it was held was not conclusive. The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. Therefore, it is not essential that a handwriting expert must be examined to prove or disprove a disputed writing. Therefore, indeed the learned Additional Sessions Judge, Karnal could compare the writing/signatures of the petitioner on the day book (Ex.PW1/A) and reach a conclusion that these were of the petitioner. As regards the plea of the petitioner for extending him the benefit of probation, in the facts and circumstances and the order of both the Courts below regarding embezzlement of the amount of the Society given by its Member for deposit in the accounts of the Society would not warrant that the benefit of probation should be extended. Both the Courts having held by cogent and convincing reasons that the petitioner was guilty of the offence attributed to him, would not warrant an interference of this Court in exercise of its revisional jurisdiction. Crl. Misc. No. 43879 of 2010 and [8] CRR No.1078 of 2010 In the aforementioned facts and circumstances, there is not merit in the revision petition, which is accordingly dismissed. (S.S. SARON) JUDGE August 26, 2010 Amit/A.Kaundal