B.K.PATEL, J. CRLA. NO.99 OF 1999 ( Decided on 29. 01. 2010 ) DURYODHAN PATRA …………… . Appellant -V- STATE OF ORISSA ………………. Respondent (A)PREVENTION OF CORRUPTION ACT, 1947 (ACT NO. 2 OF 1947) – SEC.6. (B) CRIMINAL LAW AMENDMENT ACT, 1952 (ACT NO. 46 OF 1952 ) – SEC.7(3) r/ w Sec.5(1)(c) & 5(2) of the P.C.Act,1947. (C) PREVENTION OF CORRUPTION Act, 1947 (ACT NO. 2 OF 1947) – SEC.6. For Appellant – M/s. S.R.Mahapatra, D.Dash, A.Das, R.K.Lenka, S.C.Mishra, G.P.Panda, A.K.Kar, B.R.Mohanty, S.K.Das, P.K.Nayak, B.r.Samal, G.Pattanayak & Miss. M.Sahoo. For Respondent – Mr.D.K.Mohapatra, Standing Counsel (Vigilance). B.K.PATEL, J. Calling in question the correctness of the common judgment and order dated 31.03.1999 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. Case Nos.26, 27, 28, 29, 30 and 31 of 1988, this appeal has been preferred by the appellant, who has been convicted for commission of offences punishable under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 (for short ‘the P.C. Act’) as well as under Section 409 and 468 of the Indian Penal Code (for short ‘the I.P.C.’), in the trial on consolidation of aforenoted T.R. Cases. The appellant has been sentenced to undergo R.I. for one year and to pay a fine of Rs.1,000/- in default to undergo R.I. for one month under Section 5(1)(c) read with Section 5(2) of the P.C. Act, R.I. for two years and to pay a fine of Rs.1,000/- in default to undergo R.I. for one month under Section 409 of the I.P.C. and R.I. for one year and to pay a fine of Rs.500/- in default to undergo R.I. for six months under Section 468 of the I.P.C., while directing all the sentences to run concurrently. 2. The prosecution case, in brief, is as follows; The appellant, being a primary school teacher was nominated as attached teacher to the S.I. of Schools under Lakhanpur Block during the period from 11.06.1979 to September, 1984. During his incumbency as such, the appellant was dealing with matters relating to Teachers Provident Fund Accounts (for short TPF accounts) of primary school teachers of the Block. In course thereof, the appellant inflated the amounts in withdrawal memos and paid less to the concerned teachers while misappropriating the differential amounts. In other cases, though the concerned teachers never applied for withdrawal of advance from their TPF accounts nor was there any sanction order of the Block Development Officer (B.D.O.), the appellant forging the signatures of the teachers in withdrawal memos, withdrew a sum of Rs.13,700/- by using the TPF pass books of eleven teachers and misappropriated the entire amount. Suspicion against the aforesaid conduct of the appellant led the B.D.O., Lakhanpur to conduct an enquiry in course of which the appellant confessed to have withdrawn Rs.45,000/- from the TPF accounts and misappropriated the same. The appellant thereafter deposited Rs.37,000/- by installments and balance amount of Rs.8,000/- remained unrecovered. Accordingly, on the basis of FIR (Ext.72) lodged by the Inspector (Vigilance), Jharsuguda, Sambalpur Vigilance P.S. Case No.28/84 was registered against the appellant and two S.I. of Schools of the Block. The alleged misappropriation of TPF advance being related to the period from 1979 to 1984, upon completion of investigation, in total six charge sheets i.e., one charge sheet for each year were submitted only against the appellant. 3. The appellant took the plea of complete denial. 4. In order to substantiate the charges, the prosecution examined as many as thirty- nine witnesses and relied upon the documentary evidence vide Exts. 1 to 73 and material objects vide M.O. I to IV. The appellant, on the other hand, examined the Senior Clerk in the office of C.I. of Schools, Sambalpur as the only witness in his defence. The learned trial judge, on appreciation of the oral and documentary evidence brought on record by the prosecution, held that all the charges were established against the appellant beyond reasonable doubt. 5. The learned counsel appearing on behalf of the appellant has assailed the judgment of the trial court on the following grounds; (i) The sanction order passed by the D.I. of Schools is invalid being passed without application of mind. So, the entire proceeding stood vitiated for want of valid sanction. (ii) Prosecution has failed to establish fact of valid entrustment and fact of misappropriation or conversion to own use, as the evidence led to that effect is untrustworthy being replete with material contradictions and in absence of proof of material documents like acquittance roll, treasury challan thereby raising adverse presumption under Section 114 (g) of Evidence Act. (iii) Evidence of Handwriting Expert (P.W.38) is not reliable nor conclusive so as to prove alleged forgery for want of corroborative evidence. 6. The learned standing counsel appearing on behalf of the State while supporting the impugned judgment submitted that prosecution allegations were amply established by evidence of P.Ws.5 to 32, 35 and 37 coupled with the confession made by the appellant before the B.D.O. Besides, P.W.38 has proved the allegation of forgery of withdrawal memos and TPF applications. Moreover, challenge of the appellant on the point of sanction merits rejection since same was not raised before the trial court. Accordingly, the criminal appeal is liable to be dismissed and impugned order of conviction and sentence deserves to be confirmed. 7. To start with, let me first address to the legal question raised with regard to validity of sanction. Grant of sanction in terms of Section 6 of the P.C. Act is the sine qua non for a valid prosecution for offences under Section 5(1)(c) read with Section 5(2) of the P.C. Act. As it appears from the impugned judgment, this question was not raised by the defence before the trial court. Nonetheless, as has been held by this Court in the case of B.K. Kutty –vrs.- State : (1984) 1 OLR 497, the question of validity of sanction though not raised in the trial court, can be raised in appeal for the first time, as it strikes at the root of the case and is a condition precedent for valid prosecution. Accordingly to this effect, the contention of the learned standing counsel does not hold good. 8. In proof of factum of sanction, evidence of P.W. 36, the D.I. of Schools reveals that on receipt of requisition from S.P. Vigilance, Sambalpur and on placement of relevant papers including the F.I.R., Case Diary, consolidated report by the I.O., he perused the same and being satisfied about existence of prima facie case against the appellant, accorded sanction vide Ext. 21 for his prosecution. In this context, it would be worthwhile to advert to the observations of their Lordships of the Supreme Court in the case of Mohammed Iqbal Ahmed –vrs.- State of Andhra Pradesh : (AIR 1979 SC 677) as hereunder : “It is incumbent upon the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways either (1) by producing the original sanction which itself contains the facts constituting the offence and grounds of satisfaction and (2) by adducing evidence to show that the facts placed before the sanctioning authority and the satisfaction arrived at by it. It is well settled that, any case instituted without proper sanction must fail, because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio.” Having examined Ext. 21 read with lone testimony of P.W.36 in the light of aforesaid propositions of law, it is found that the same does not stand to legal scrutiny. Though the I.O. was dead by the time of trial, P.W.39, D.S.P. Vigilance did not whisper in his evidence even with reference to Case Diary, what documents were produced by I.O. before P.W. 36. Added to it, contents of alleged consolidated report of I.O. and grounds of satisfaction are not spelt out from the evidence of P.W.36, and Ext. 21 as well. Admission of P.W.36 in cross-examination that he has not examined the documents in detail while according sanction, is suggestive of the fact of his non-application of mind and according of sanction Ext.21 in a casual manner. Accordingly, it is found that the sanction order vide Ext. 21 is not valid in the eye of law. Resultantly, the learned Special Judge having no jurisdiction to take cognizance of offence under Section 5(1)(c) read with Section 5(2) of the P.C. Act for want of legal and valid sanction in terms of Section 6 of the P.C. Act, the trial of the appellant for the said offence stood vitiated. Therefore, the conviction of the appellant thereunder cannot be sustained and is liable to be aside. 9. On the face of aforesaid conclusion, the next question would arise with regard to validity of trial of the appellant before the Special Judge in respect of charge under Sections 409 and 468 of the I.P.C. In this context, it is relevant to note that Sub- section (3) of Section 7 of the Criminal Law Amendment Act, 1952 is an enabling provision conferring jurisdiction on the Special Judge to try offences which arise in course of the same transaction allied with the principal offences as specified in Section 6 thereof. In view of the principle laid down by this Court in the case of B.K. Kutty –vrs.- State (supra) and B. A. Kameswar Rao –vrs.- State of Orissa : (1988) 1 OLR 457, if the Special Judge has no jurisdiction to try an offence under Section 5(2) of the P.C. Act for want of valid sanction, he lacks jurisdiction to take cognizance of allied offences and to try the same, in view of the specific powers on a Special Judge with limitations specified in Section 7(3) of the Amendment Act. On application of aforesaid principle to the instant case, the conclusion becomes inevitable that, the orders of conviction recorded against the appellant in respect of the charges under Sections 409 and 468 of the I.P.C. and the sentences passed against him thereunder cannot be sustained and thus, are liable to be set aside. 10. Assuming for a while that the sanction had been duly accorded for prosecution of the appellant under the P.C. Act and the learned Special Judge had, therefore, jurisdiction to take cognizance and to try him for all the charges, on reappraisal of the evidence on record, it would appear, for the reasons to follow, that the factual findings recorded by the learned Special Judge against the appellant holding him guilty of the offences under Sections 409 and 468 of the I.P.C., are not well founded on the evidence on record and thus, cannot be sustained in law. 11. Factum of entrustment being the essential ingredient of the offence under Section 409 of the I.P.C. it was incumbent upon the prosecution to establish in the first place the factum of withdrawal of Rs.45,000/- by the appellant from the TPF accounts of affected teachers during the alleged period, i.e., from 18.06.1979 to 07.03.1984, the reason being, factum of withdrawal would tantamount to entrustment of the amount withdrawn by the appellant or his dominion over the same. On scanning the evidence of affected teachers P.Ws. 5 to 23 and 25 to 32, on which reliance was placed by the learned court below, it is observed that their evidence inspires little confidence and is not worthy of trust. The withdrawal memos which were admittedly signed by some of the teachers have not been proved by them. Their evidence does not indicate their respective TPF account numbers with date and amount allegedly withdrawn by the appellant. Evidence of P.W.38, the handwriting expert regarding proof of alleged applications and withdrawal memos of affected teachers is not acceptable for want of his competency to prove the same and in absence of evidence showing how and by whom such documents came to his possession, inasmuch as fact of seizure thereof from the Sub-Post Master by the I.O. is not evinced by P.Ws.34 and 39. Even if the evidence of P.Ws. 5 to 23 and 25 to 32 would be accepted on their face value, withdrawal of amount of Rs.45,000/- by the appellant during the alleged period was not established by their evidence. Besides, their evidence is contradicted by their previous police statements. 12. According to the prosecution eleven teachers had never applied for TPF advance nor B.D.O. had accorded sanction for withdrawal but the appellant having forged their signatures in the application and withdrawal forms withdrew Rs.13,700/- from their TPF accounts and misappropriated the same. Out of said teachers, only six teachers were examined namely, P.W.10, 15, 17, 18, 23 and 28. Of them, P.W.18 did not support the prosecution though the appellant was alleged to have withdrawn Rs.1,000/- from his TPF account. P.Ws. 10, 15 and 17 claimed that they had applied for TPF advance. The evidence of said witnesses is not worth acceptance, the same being contrary to the prosecution story and contradictory to Ext.72 with regard to the amount applied for and, amount allegedly withdrawn and amount allegedly misappropriated by the appellant. 13. To add to it, misappropriation of alleged amount of Rs.13,700/- by appellant in the above manner is not explicit from the charge nor does the charge disclose if the amount of Rs.45,000/- figured therein is inclusive of Rs.13,700/-. Also, this fact is not borne out from evidence of any of the witnesses. Non-examination of the other five affected teachers without any explanation by the prosecution leads to an adverse presumption as per Section 114 (g) of the Evidence Act that had they been examined their evidence would have been unfavourable to the prosecution. 14. It is not alleged by the prosecution that the appellant had forged also the sanction order of the B.D.O. One copy of sanction order is sent to the teacher concerned and two copies to the concerned Sub-Post Office, as testified by the B.D.O. P.W.37. Thus, withdrawal of an amount in excess of the sanctioned amount, by inflating the amount in withdrawal memo, was normally not possible, as the postal authorities would not have allowed such excess withdrawal by the appellant on the face of sanction order available with them. 15. Out of the P.Ws examined, except P.Ws.25 and 28 others did not allege that the appellant inflated the amount in withdrawal forms while withdrawing from their TPF accounts. According to P.W. 25, he had applied for an advance of Rs.600/- under Ext.19. But the amount was inflated to Rs.1,600/- and same was withdrawn and misappropriated by the appellant. As per the version of P.W.28 he had applied for Rs.900/- but the appellant withdrew Rs.1,900/- from his TPF account having inflated the amount in withdrawal form and did not pay the amount to him. Evidence of P.Ws.25 and 26 cannot be believed, because version of P.W.25 is self contradictory in view of his admission in cross-examination that, during enquiry by B.D.O. the appellant paid him Rs.1,000/- and prior to that he had paid Rs.600/- whereas, version of P.W.28 is contrary to prosecution case to the effect that the appellant had withdrawn an amount of Rs.900/- only from his TPF account. 16. According to P.Ws.32 and 22, they had applied for Rs.2,000/- and Rs.1,200/- but after sanction they received Rs.1,800/- and Rs.900/- respectively and accordingly they signed the Acquinttance Roll. Nonetheless, it was alleged by them that the appellant had drawn an amount of Rs.2,100/- and Rs.1,200/- from their TPF accounts as sanctioned by B.D.O. To test the veracity of evidence of the aforesaid witnesses, proof of sanction order of B.D.O., TPF Pass Book, Acquittance Roll and TPF ledger maintained in the Post Office by the prosecution was highly essential particularly in view of the evidence of P.W.33 that the amount withdrawn from TPF accounts of teachers are debited in their Pass Books and reflected in the ledger of the Post Office. Undoubtedly, those documents are material documents, so as to throw light on the veracity of alleged withdrawal of TPF advance of teachers by the appellant and consequential misappropriation. But, evidently the prosecution has failed to produce, muchless prove, said material documents. Hence, presumption in terms of Section 114 of the Evidence Act is to be drawn that had those vital documents been proved, the prosecution case would have been falsified. So also, in the circumstances, reasonable doubt would arise if the appellant, in fact, had drawn the alleged amount from the TPF accounts of teachers and if so, whether he misappropriated or converted the same to his own use instead of making payment to the concerned teachers. The benefit of said reasonable doubt has to be extended to the appellant, as per settled position of law. 17. Furthermore, conduct of the P.Ws. 5 to 23 and 25 to 32 in remaining silent for a long period after submitting TPF applications without making enquiry about sanction and withdrawal followed by their inaction in making complaint before the B.D.O. or S.I. of Schools, being contrary to normal human behaviour, renders the veracity of their testimony dubious and unworthy of credit. Another circumstance which throws doubt on the factum of withdrawal from TPF accounts by the appellant emerges from the admitted factual position that no deduction was made from the monthly salary of the aforesaid witnesses subsequent to the alleged withdrawals. 18. Much reliance was placed by the prosecution on the alleged extrajudicial confession made by the appellant before P.W.37 during enquiry conducted by him with regard to withdrawal of Rs.45,000/- from the TPF accounts of teachers and misappropriation thereof as well as the factum of making deposit of Rs.37,000/- by appellant towards recovery of misappropriated amount subsequently. According to P.W. 37, the appellant gave recovery of Rs.37,000/- through treasury challan under intimation to him. Said treasury challan has not been seized by the I.O. nor proved by the prosecution. Factum of deposit of money could have been proved by documentary evidence. Since prosecution has withheld the treasury challan, oral evidence of P.W.37 is of little assistance to the prosecution. Accordingly, factum of giving recovery of Rs.37,000/- by the appellant subsequent to alleged misappropriation is not acceptable in the absence of evidence to indicate when deposit was made and under which GPF account of which teacher, as admittedly after 1984 the TPF accounts were converted into GPF account. Evidence of P.W.37 reveals that he conducted enquiry from the month of March to August , 1984. Apparently that was an administrative enquiry against the appellant who was then under the administrative control of the B.D.O. Such enquiry, if any, was supposed to be followed by a report and proceedings of the enquiry must be in black and white. Strangely enough, the I.O. has not seized any such enquiry report or proceedings of the enquiry, nor prosecution has led documentary proof thereof in the trial court. P.W.37 deposed in his cross-examination that appellant did not admit to have misappropriated in writing. Evidence of P.W.37 is that the appellant submitted 42 applications vide Exts. 22/3 to 22/41 to him admitting therein to have misappropriated the TPF amount of primary school teachers. As it transpires from his cross-examination, said applications were given during investigation of this case. Moreover, the appellant wrote some applications in his presence. In the circumstances, I am of considered judgment that the alleged confession made by the appellant before his superior authority was not voluntary. Rather the same appears to have been obtained by inducement or promise of favour or false hope. Accordingly, the alleged extrajudicial confession made by the appellant before P.W.37 is not admissible in evidence being hit by Section 24 of the Evidence Act. This apart, evidence of P.W.30 reveals the presence of Inspector of Vigilance during enquiry conducted by B.D.O. when allegedly the appellant made confession. So assuming for a while that the appellant confessed his guilt before P.W.37 during enquiry, the same would be inadmissible in evidence in terms of Section 25 of Evidence Act. It thus follows from the aforesaid that charge under Section 409 of the I.P.C., has not been established beyond all reasonable doubt against the appellant. So, the order of conviction recorded against him thereunder has to be set aside. 19. Conviction of the appellant under Section 468 of the I.P.C. appears to have been founded on the sole testimony of P.W.38, the Handwriting Expert and his report vide Ext.70. As per settled position of law, it may be hazardous to base a conviction solely on the opinion of a handwriting expert, because the science of identification of handwriting is not so perfect. Moreover, all human judgment is fallible and an expert may go wrong because of some defect of observation, some errors of premises or honest mistake of conclusion. So, in appropriate cases, corroboration may be sought. 20. On scrutiny of evidence of P.W.38 read with Ext.70, it is found that basing on the specimen and admitted writings of the appellant marked as S-1 to S-182, P.W.38 examined and compared the same with the disputed signatures in documents marked as Q-1 to Q-56, i.e., postal withdrawal forms and applications received from the I.O. under his requisition vide Ext.23. Accordingly, he concluded that the standard writings and signatures marked S-1 to S-182 and the disputed signatures marked Q-7 to Q-10, Q-12, Q-13, Q-17, Q-18, Q-24 to Q-32, Q-35, Q-36 and Q-48 to Q-51 are in the handwriting of one person i.e. the appellant. However, disputed signatures marked Q-3, Q-6, Q-39, Q- 52 and Q-53 are not in the handwriting of the appellant. This apart, he could not opine if the disputed signatures marked Q-1, Q-2, Q-4, Q-11, Q-14 to Q-16, Q-19 to Q-23, Q-33, Q-34, Q-37, Q-38, Q-40 to Q-44, Q-46, Q-47 and Q-54 to Q-56 are in the handwriting of the appellant. Thus, all the disputed writings and signatures are not proved to be in the handwriting of the appellant. In any event it is difficult to attach credence to the testimony of P.W.38 and probative value of his report vide Ext.70 gets belittled as there is nothing on record to indicate how, when and by whom the specimen and admitted writings marked S-1 to S-182 came to the possession/custody of P.W.38. Seizure of admitted writings of appellant has not been proved by the prosecution and admittedly the I.O. has not obtained the specimen writings of appellant under the authority of the court and with the assistance of any competent Magistrate. The appellant has disowned authorship in respect thereof. P.W.38 is not competent to prove the same as he testified that those writings of appellant were not collected in his presence. Ext.23, under which he claimed to have received some documents, does not find mention in the list of documents nor does it disclose which documents were disputed and which documents were to be examined with reference to which documents. In such circumstances, when P.W.38 made the comparison of disputed signatures with the alleged specimen and admitted writings of the appellant marked S-1 to S-182, taking the same as the standard set, the conclusions reached by him would be fallacious definitely thereby making his final opinion vulnerable. Accordingly, his evidence and report are not found to be a safe basis to sustain the charge under Section 468 of the I.P.C. against the appellant. In this view of the matter, order of conviction of the appellant under Section 468 of the I.P.C. cannot be sustained. 21. In view of the above discussions, the orders of conviction and sentences passed against the appellant are set aside and the appellant is acquitted of all the charges. Criminal appeal is, accordingly, allowed.