Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.458 of 2005 with Cr.Appeal No.468 of 2005 & Cr.Appeal No.513 of 2005. Judgment reserved on: 11.8.2010. Date of Decision: September 17, 2010. 1. Cr.Appeal No.458 of 2005. Suresh Patial ……… Appellant. Versus State of H.P. …. Respondent. For the Appellant : Mr. Anup Chitkara, Advocate. For the Respondent : Mr. Anshul Bansal, Addl. Advocate General with Mr. J.S. Rana, Assistant Advocate General. 2. Cr. Appeal No.468 of 2005. Chatter Singh ……… Appellant. Versus State of H.P. …. Respondent. For the Appellant : Mr. K.S. Banyal, Advocate. For the Respondent : Mr. Anshul Bansal, Addl. Advocate General with Mr. J.S. Rana, Assistant Advocate General. 3. Cr. Appeal No.513 of 2005. State of H.P. ……… Appellant. Versus Suresh Patial …. Respondent. For the Appellant : Mr. Anshul Bansal, Addl. Advocate General with Mr. J.S. Rana, Assistant Advocate General. For the Respondents : Mr. Anup Chitkara, Advocate. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. 2 Surinder Singh, J : The above titled appeals are arising from the same judgment passed by the learned Special Judge Kinnaur Sessions Division at Rampur in Sessions Trial No.1 of 2000 decided on 26.9.2005, whereby the appellants Suresh Kumar and Chatter Singh were charge-sheeted, tried and convicted for the offences punishable under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code, however the appellant Suresh Patial a Junior Engineer of the HPSEB was acquitted for the offence punishable under Section 13(2) of the Prevention of Corruption Act, against which the State has filed separate appeal (Cr.A. No.513 of 2005). The aforesaid convict-appellant were sentenced by the learned trial Court as under:- Name of the convict- appellant Under Section Sentence Suresh Patial (JE) 420 IPC SI for a period of six months and to pay a fine of Rs.10,000/- and in default of payment of fine SI for one month. 467 & 468 IPC SI on each count for a period of six months and to pay fine of Rs.5,000/- on each count, in default SI for one month on each count. 471 IPC SI for two months Chhater Singh 420 IPC SI for a period of six months and to pay a fine of Rs.2,000/- and in default of payment of fine SI for one month. 3 467 & 468 IPC SI on each count for a period of six months and to pay fine of Rs.2,000/- on each count, in default SI for one month on each count. 471 IPC SI for two months. 2. The substantive sentences against each of the appellants aforesaid were ordered to run concurrently. 3. In short, the prosecution case as emerges from the record can be stated thus. It is alleged that during the year 1991-92, when appellant Suresh Patial was Junior Engineer in HPSEB Department posted at Bhaba Nagar, in collusion with his co-accused Chatter Singh appellant took a shop at Bhaba Nagar, on rent at the rate of Rs.800/- per month, from PW8 Durgawati Negi and opened the shop of electrical goods under the and head and style of ‘Patial Electricals Bhaba Nagar’. Both the appellants in collusion with each other had allegedly supplied electrical goods to the Department in the name of original suppliers ‘Thakur Electricals, Bhagra Niwas, Shimla’ by preparing false documents in their name and obtained undue benefits to the tune of 4 Rs.2,21,272/- and also sought unauthorized exemption of sale tax @ 8% which comes to Rs.17,801/- and which was an unlawful gain to them. 4. Additional Secretary (Vigilance) Government of Himachal Pradesh vide his letter No. (Vig) F-3(S.E.B.) 58/90 (Enforcement) dated 24.9.1992 sought an enquiry through the Enforcement Department of State Police with respect to the release of amount regarding the electric goods supplied by ‘M/S. Thakur Electricals’ to the HPSEB at Bhaba Nagar. PW15 Suram Singh Thakur owner of ‘Thakur Electrical Bhagra Niwas Shimla’ had denied having submitted nine bills to the office of HPSEB for payments. According to him, the said Bills were forged and fabricated in the name of his firm, he also gave a complaint in writing Ex.PW15/A to the Superintendent of Police which was enquired into by PW17 Tarlochan Singh Dy. S.P. (Enforcement) South Zone, Shimla. On enquiry, he found that 9 bills mentioned at serial No.7 to 14 in his report Ex.PW17/A were fictitious and wrongly prepared in the name of ‘Thakur 5 Electrical Bhagra Niwas’, by the appellants and on the report of the Dy.S.P. FIR Ex.PW17/B was registered in Police Station (Enforcement) South Zone, Shimla. Thereafter he took over the investigation of this case. 5. During the investigation of the case, the police came to know that (a) Shri Suram Singh (PW15) was the owner of ‘Thakur Electricals, Bhagra Niwas, Shimla’. He was the supplier of electrical goods to HPSEB. Admittedly, he had issued Bill Nos. 5338, 5339, 4340, 5518 and 5510 (five bills) Exts.PW1/B to F, respectively, amounting to Rs.81,601/-, in the name of A.E. HPSEB Bhaba Nagar, District Kinnaur regarding the electric goods supplied to them, the payment of which was received by him. (b) It also revealed that appellant Chhater Singh had opened his bank account No.25077 in SBI Sungra Branch Bhaba Nagar and he was introduced by his 6 co-accused Suresh Kumar Patial appellant at the time of opening the account. The application Ex.PW1/C was signed by him as introducer as he already had an existing account in the bank. (c) The cheques Ex.PW2/B to F aforesaid pertained to ‘Thakur Electrical’. These were credited to the account of Chatter Singh appellant, which stood deposited in his account in SBI Branch Sungra. These cheques were taken into possession vide memo Ex.PW2/A. PW15 Suram Singh had received its payment through chatter Singh, regarding which he had no grounds. (d) The statement of Account Ex.PW1/B of Thakur electrical was also obtained from Sungra branch alongwith the current account opening form Ex.PW1/C in the name of ‘Thakur Electrical The Mall, Shimla’, which was opened by Chatter Singh appellant. His 7 specimen signatures taken at the time of opening the account vide memo Ex.PW1/D. It also revealed that the payments of nine disputed cheques were credited in his account, which was withdrawn by him. 6. The photo copies of the statement of accounts Exts.PW6/A of Smt. Durgawati Negi and Ex.PW6/B of Suresh Kumar Patial were also taken into possession from SBI Sungra Branch vide memo Ex.PW5/A and PW6/C to show that the rent of the shop was being remitted by Suresh Kumar Patial from his account to the account of Smt. Durgawati Negi. The police also took into possession the alleged forged Bills issued in the name of A.E. P & M Bhaba Nagar, which were from the firm ‘Thakur Electricals’ the details thereof and amount whereof was deposited in the account of Chatter Singh Ex.PW1/B is as follows:- S.No. Bill No. and dated Amount Marked 1. 6804 dated 26.6.91 24,840/- Ex.PW15/A 2. 6 dated 5.12.91 15,905/- Ex.PW15/B 3. 10 dated 23.12.91 20,825/- Ex.PW15/C 8 4. 12 dated 31.1.92 19,000/- Ex.PW15/D 5. 5 dated nil. 7,410/- Ex.PW15/E 6. 275 dated nil 22,250/- Ex.PW15/F 7. 22 dated nil 36,507/- Ex.PW15/G 8. 21 dated 19.6.92 24,829/- Ex.PW15/H 9. 6802 dated 11.9.92 24,866/- Ex.PW15/J 7. During the investigation of the case, the posting orders of Suresh Kumar Patial Exts.PW5/A and B were also taken into possession vide memo Ex.PW5/A. Specimen signatures of Suresh Patial Ex.PW9/A to E were also taken before the Executive Magistrate Shri Jhingta. The police also taken into possession the photocopies of account books of PW5 Suram Singh, Ex.PW15/K to S vide memo Ex.PW11/A. 8. Further specimen signatures and writings of appellant Chatter Singh Ex.PW13/A to F were also taken before the Executive Magistrate Vinod Kumar for its comparison and sent for forensic examination of the Handwriting Expert. During the investigation of the case PW16 Baldev Singh Senior Assistant of HPSEB handed over the bills regarding 9 supply of material Ex.PW15/B, PW15/G, PW15/A and Ex.PW15/H, which were taken into possession vide memo Ex.PW16/A out of which bills Ex.PW15/B and PW15/G (five) were supplied by Suram Singh Thakur. 9. PW12 JS Rana, Secretary HPSEB accorded sanction Ex.PW12/A to prosecute appellant Sursh Patial. 10. The disputed bills against which the payments were allegedly received by the appellants were got examined from the Govt. Examiner of Questioned Documents with the specimen writing/ signatures of the accused. He issued his report Ex.PX. The investigation by Enforcement department concluded that the appellants were involved in the offences aforesaid as such the challan was presented in the court of Special Judge, for their trial. 11. Both the appellants were charge-sheeted and tried for the offences aforesaid, thus convicted and sentenced, as stated above, as such they assailed the findings of their guilt in the instant appeal. 10 12. Shri Anup Chitkara, learned counsel for the appellant Suresh Patial vehemently argued that there is no evidence worth the name appearing in record that the convict appellant had colluded with his co-accused and opened a shop in the rented premises of PW8 Durgawati Negi at Bhaba Nagar, as alleged. He further submitted that the said appellant only introduced Chatter Singh co- accused in the SBI Sungra Branch, while opening the account by him, but did not know as to what was in the mind of Chatter Singh at that time. There was no belief that he would commit a fraud, if any, thus introducing Chattar Singh in the Bank while opening the account would not constitute any offence against him. 13. Shri K.S. Banyal, learned counsel for appellant Chatter Singh vehemently argued that Chatter Singh had neither cheated the bank nor the HPSEB or PW15 S.S. Thakur for that matter, further that the nine disputed bills so submitted were not proved to be in his handwriting. He also ventilated that the payment of the said bills was not shown to have been received by him by 11 leading any legal and cogent evidence. Even the statement of account linking the said appellant therewith is inadmissible in evidence as not having been proved in accordance with law. Further that the police could not have taken the signatures and writings before the Executive Magistrate in absence of any inquiry or trial before him, therefore, the specimen signatures and writings obtained during the investigation and sent for comparison with the disputed signatures of Chatter Singh or his handwriting on any of the documents aforesaid are wrong and illegal. The learned trial Court did not appreciate the evidence in its right perspective, as such conviction and sentence of the appellant is bad in law. 14. Shri J.S. Rana, learned Assistant Advocate General supported the impugned judgment of conviction and sentence and forcefully argued that the appellants stand connected for the offences in question and further in addition the appellant Suresh Patial having been involved in the conspiracy with his co-accused Chatter Singh was also required to be convicted and sentenced 12 under Section 13(2) of the Prevention of Corruption Act, as such prayed for maintaining the sentence and setting aside his acquittal for the said offence. 15. I have given my thoughtful consideration to the rival contentions of parties and scanned and reappraised the evidence on record, carefully. 16. First of all I will take up the case of Suresh Patial. The prosecution launched a twin attack on him, i.e., (i) that he in collusion with his co-accused opened a shop under the head and style of ‘M/s Patial Electrical at Bhaba Nagar’ in a rented premises of PW8 Durgawati Negi where both the appellants started business in electrical goods and supplied the material to the Electricity Department for its use in Hydro projects on the fictitious bills issued by them in the name of the “Thakur Electrical Bhagra Niwas, Shimla”, so as to save 8% sales tax’. (ii), the payments so made by cheques were encashed by Chatter Singh which were credited to his bank account No.25077 maintained in SBI Sungra branch in the name of ‘Thakur Electricals, Bhagra Niwas, near Lift The Mall Shimla’ and said Chatter Singh was introduced by Suresh 13 Patial vide current account opening form Ex.PW1/C. 17. It is noticeable from the record that when the charge was framed in this case, the accused preferred revision in the High Court but no stay was granted and the trial of the case proceeded. His request for the adjournment of case was declined vide order dated 20.5.2003. The learned defence counsel did not cross-examine PW1 to PW11. He reserved his right to cross-examine them, on the decision of criminal revision petition against them. It appears that the petition was dismissed but the learned defence counsel did not make any request to cross-examine the witnesses aforesaid. 18. But I, however, venture to scrutinize the evidence on record whether the prosecution evidence is confidence inspiring and connects the appellant(s) with the offences charged. 19. Smt. Durgawati Negi was examined as PW8 and her husband Ganga Singh as PW10. Both of them did not support the prosecution case. PW8 Smt. Durgawati stated that though she owned a shop at Bhaba Nagar, but it was rented out to her 14 relative Bhagwan Singh Negi. He used to keep on the details of the rent. She did not know as to who was tenant in the said shop in the year 1991-92. PW10 Ganga Singh Negi her husband, was himself an employee posted in ‘Andhra Hydel Project’ posted at Rohroo since the year 1982. He did not know Suresh Kumar accused nor he could say if Suresh Kumar was rented out a shop by his wife at Bhaba Nagar. 20. There is no other witness who could prove the tenancy of the appellants in the said premises of Smt. Durgawati Negi and further the photocopy of the statement of account Ex.PW6/K pertaining to Durgawati and PW6/B of Suresh Patial though shows that some of the amount was remitted to the account of Durgawati to which neither she explained nor Suresh Patial has stated anything about it, but before we could seek their explanation and these statements are admitted in evidence, it is incumbent for the prosecution to prove the same in accordance with law. Both these statements are photocopies of statements of account not even attested to be true copies. These 15 are only stamped by some official of the bank but did not contain certificate in consonance with the Bankers Book of Evidence nor it satisfies the requirement of Section 35 of the Indian Evidence Act, so as to bring within the ambit of a relevant evidence. Therefore, I am constrained to hold that the prosecution has failed to prove that the appellants had taken the premises of Durgawati aforesaid on rent as alleged and there is no legal proof on record that a shop ‘M/s Patial Electricals’ even existed in the said premises. 21. The next question which arises for decision is whether merely by introducing Chatter Singh in the Bank by Suresh Kumar appellant would make him liable for conspiracy for the offences charged. For that I would like to say that Suresh Patila was operating his account in SBI Sungra branch, since his posting at the said place. It was an old account. Chatter Singh had opened his Account No.25077 in State Bank of India Sungra Branch Bhaba Nagar on 1.8.1991 by depositing Rs.500/- as is evident from his statement of account Ex.PW1/B in the name of ‘Thakur Electrical Bhagra Niwas, The Mall Shimla’. 16 The signatures of Suresh Patila finds mentioned at Q-139 which as per the report qua him and even in his statement under Section 313 Cr.P.C. the appellant Suresh Patial to question No.6 admitted having introduced Chatter Singh in the bank as depicted in form Ex.PW1/C. The statement of account of ‘Thakur Electrical, Bhagra Niwas, Shimla’ with the forwarding letter Ex.PW1/A from the Manager of the said Bank alongwith the introduction form were taken in possession from PW1 Shri O.P. Kashyap, Manager of the Bank, but according to Suresh Patial he had introduced Shri Chatter Singh in the bank being himself the account holder. Except this there is no evidence against him. 22. In Manohar Dass vs. State of Jharkhand [2004 (12) SCC 90] while dealing with a case where the convict was charge-sheeted for the offences under Sections 419, 420, 468, and 471 and 109 of the Indian Penal Code and convicted but sentenced under Section 420 read with Section 109 of the IPC almost dealing with the similar contention, held that where the appellant had 17 introduced one Lok Nath Acharya to the bank only for opening an account would not by itself spell out any fraud or cheating. In para-6 the apex Court concluded the matter as follows:- “6. There is no evidence to show that the present appellant instigated Loknath Acharya to present bogus drafts before the complainant Bank. It is also not correct to say that the appellant was in any way responsible for the loss sustained by the Bank when the Bank passed the cheque for Rs.27,000/- at a time when the account-holder Loknath Acharya had not sufficient money in his credit. They acted on the bogus drafts given by him for which the appellant who had introduced the account- holder about six months back cannot be made likable for commission of offence or abetting offence of cheating. 7. The trial court as well as the appellate court committed serious error in finding the appellant guilty of the offence under Sections 420/109 IPC. We set aside the judgment of the trial court, Sessions Court and the judgment of the High Court and acquit the appellant of the charge of Sections 420/109 IPC.” 23. The case of Suresh Kumar appellant is fairly and squarely, covered by the above judgment. Therefore, in view of the above, the findings of guilt 18 and his conviction returned and recorded by the learned trial Court against appellant Suresh Patial is unsustainable. 24. Once the above findings arrived at, the appeal of the State for converting the acquittal of Suresh Kumar into conviction also for the offence punishable under Section 13(2) of the Prevention of Corruption Act would fail. 25. Insofar as another convict-appellant chatter Singh is concerned, the prosecution has failed to prove that he alongwith Suresh Patial had opened an electric shop under the head and style of M/s Patial Electrical at Bhaba Nagar in the premises of PW8 Smt. Durgawati Negi. 26. Further the very report submitted by the Enforcement Department under Section 173 Cr.P.C. shows that out of 14 bills, first five bills Exts.PW2/B to F were issued in the name of A.E. HPSEB Bhaba Nagar by PW15 Suram Singh Thakur, the original owner of ‘Thakur Electricals, Bhagra Niwas Shimla’, regarding which he is stated to have received the payment for the supply of electrical goods. The cheques Exts.PW2/B to F pertains to these bills which was credits 19 to current account No.25077 of M/s Thakur Electricals, Bhagra Niwas, The Mall, Shimla, which was opened by accused Chatter Singh, but he denied having issued the other nine bills marked PW15/A to H & J. These bills have not been proved and exhibited but these are also shown to have been issued by M/s Thakur Electricals, Bhagra Niwas, The Mall, Shimla on the printed forms. The amount of these disputed bills was also credited to the aforesaid account number through cheques as shown in the statement of account Ex.PW1/B. PW15 aforesaid stated that he was not aggrieved, rather he filed an application before the Superintendent of Police, as per the directions of the Enforcement Department. He also stated that details of the bills were given by the Enforcement Agency. Original cheques issued by the HPSEB qua these nine disputed bills have not been produced and proved on record in evidence. The entry of payment with respect to nine disputed bills, according to the prosecution stand reflected in the statement of account Ex.PW1/B, but the statement of account aforesaid is not a ‘certified copy’ of the entry of the bankers Book issued by the concerned 20 Manager. This document has not been proved in accordance with Section 4 of the Banker’s Books of Evidence Act, 1891, in short ‘the Act’. Section 4 whereof reads as under:- “4.Mode of proof of entries in banker’s books.- Subject to the provisions of this Act, a ‘certified copy’ of any entry in a banker’s book shall in all legal proceedings be received as prime facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but no further or otherwise.” 27. The bank in question is a Corporate Body, duly established by law and falls within the definition of word “Corporation” as defined in Section 2 (1A) of the Act. Section 2 (8) of the Act defines what does “certified copy” means. The Section can be usefully quoted:- “(8) “certified copy” means a copy of any entry in the books of a bank together with a certificate written at the foot of such copy that it is a true copy of such entry, 21 that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business, and that such book is still in the custody of the bank [and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the bank’s business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed byte principal accountant or manager of the bank with his name and the official title]”. 28. The harmonious reading of both these sections leads me to the conclusion that no copy of any entry should be receivable in any evidence unless it is “certified copy” as defined in the Act. 29. In the instant case, the statement of account Ex.PW1/B is neither a ‘certified copy’ nor it has been proved in accordance with Section 4 of the Act. There is no certificate appended to the said statement of account nor 22 it is so indicated in the forwarding letter Ex.PW1/A sent by the Manager of the concerned Bank. It also does not reveal that the book from which the copy was being made has been in the custody of the bank aforesaid. 30. PW1 Shri O.P. Kashyap, Chief Manager of the Bank stated only having produced the aforesaid document in evidence. He even did not testify that the entries made in the statement of said account were correct according to the banker’s book maintained in the ordinary course of the business. He even did not say that he had signed or attested the said statement of account. More cogent circumstance exists to discredit it as it did not contain any certificate about its correctness. Therefore, the said copy of statement of account is not enough to fasten the criminal liability on the appellant Chatter Singh. Further although, PW2 Shri C.R. Sharma and PW3 Shri U.P. Negi, Assistant Manager of State Bank of India stated having handed over 14 cheques to the investigating agency, but out of them only five cheques were produced. 23 Where are other cheques, it finds no mention? There is no evidence with respect to nine bills even having been presented by Chattar Singh to the HPSEB for its payment. He is only sought to be connected by his hand-writing and signatures on the said bills. 31. The police officials had applied for obtaining the specimen signatures and hand- writing of the said accused before