1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 537/1999 Decided on: August 18, 2010 State of HP …Appellant. VERSUS Rajinder Singh ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr. Rajinder Dogra, Addl. AG For the respondent: Ms. Shikha Thakur and Hoshiar Kaushal, Advocates R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under section 378(3) of Code of Criminal procedure in reference to the judgment dated 21.6.1999 passed by learned Additional Sessions Judge, Sirmaur District at Nahan, HP in lower court case No. 156/2 of 1995, thereby acquitting the respondent / accused for the offence under Sections 420, 408, 467,468 and 471 of IPC. 2. The case No. 156/2 of 1995 has arisen in view of the judgment dated 1.8.1998 passed by learned Addl. Chief Judicial, Nahan, whereby the learned Addl. CJM has convicted the Whether the reporters of the local papers maybe allowed to see the judgment? 2 accused/respondent for the offences 420, 408, 467,468 and 471 of IPC in reference to FIR No. 101/93, PS Renukaji 3. Against the judgment dated 1.8.1998 passed by learned Addl.CJM, an appeal under section 374 Cr.P.C was preferred by the accused/respondent with a prayer to upset the judgment dated 1.8.1998 of Addl. CJM, Nahan, whereby, he has convicted the accused/respondent under sections 408, 468 and 471 IPC and sentenced to (i) rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo rigorous imprisonment for six months under Section 408, IPC, (ii) rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- in default of payment of fine to undergo rigorous imprisonment for six months under section 468, IPC and (iii) rigorous imprisonment for three years and to pay a fine of Rs. 5000/- and in default of payment of fine to undergo further rigorous imprisonment for six months under Section 471, IPC, however, further ordering all the sentences to run concurrently. 4. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the case. Rajinder Singh, appellant ( referred to as accused ) is the Secretary, Co operative Society, Ludhiana under Police Station, Renuka Ji. On 2.9.1993, Sajnu (PW1) resident of village Dhamas lodged a report in the police station stating that 10-12 days back he had gone to the co operative bank for loan, where he was told by the bank officials that for the last 6-7 months a sum of Rs. 5,000/- of loan is already outstanding aginst him in the bank ledger. The said amount has already been disbursed to him by Multi Purpose Co operative Society, Ludhiana. According to him, he 3 never applied for any loan nor signed any paper for such loan. Thereafter, he went to the accused for inquiry, but latter did not give him satisfactory reply. On this, FIR, Ext PA was registered and investigation followed. During the investigation, it was revealed that as many as 44 members of Ludhiana Cooperative Society applied for the loan. A total loan to the tune of Rs. 1,97,000/- was approved. It was sent to the District Co-operative Bank, Nahan from where after the approval, the said loan amount was sent to the Co operative Bank, Dadahu for payment. The co operative Bank, Dadahu after verification of the whole case released the amount of Rs. 1,78,500/- to the accused on 9.2.1993. The accused, thereafter entered the said loan amount on the back of page No. 94 in the Co operative Society’s cash book on 10.2.1993, on the same day he made entries on page No. 95 and 96 of the said amount having been divided amongst 44 persons. 5. The accused is stated to have allegedly forged the signatures on pronote, Ext PW44/A and disbursement statement, Ext PW-19/D of some persons like Sajnu (PW1) Sunder Singh (PW2), Kalia (PW3), Rattan Singh (PW4), Hardevi (PW5), Hariya (PW31) and Jalam Singh (PW32), who, according to the prosecution, never applied for loan, whereas he paid lesser amount than what was applied to the few other members, like Budhia (PW6), Raiya (PW7), Mohan Singh (PW8) and Hirda Ram (PW23). During the investigation, the specimen signatures of Sajnu, Rattan Singh, Raiya, Dault Ram, Hirda Ram, Jiwan Singh, Hazari Singh, Inder Singh, Bir Singh including Rajinder Singh accused and thumb impressions of Kalia, Mohan Singh, Devi Ram, Budhia, Jalmu, Hariya, Dadlu, Sunder Singh and few others were taken. Specimen hand writings and signatures were sent to the Government 4 Examiner of Questioned Documents, Shimla, whereas the specimen thumb impressions were sent to the Finger Print Bureau, Phillau. During the course of investigation, necessary documents of the Society, namely, audit report, Ext PW37/A, including pronote Book, Ext PW44/A and disbursement statement Ext PW19/D, were taken into possession. On receipt of the reports of Questioned Documents Expert, Ext PW44/B, and the Finger Print Bureau report Ext PW46/B, a challan was put up against the accused under Sections 408, 420, 467,468 and 471 of IPC in the Court of Ld. Addl. Chief Judicial Magistrate, Nahan, who on having found a prima facie case against the accused under Sections 408, 468 and 471, IPC charge sheeted him accordingly. 3. In order to prove its case, prosecution has examined as many as 46 witnesses witnesses, whereas the respondent/accused to his statement under section 313 of Cr.P.C pleaded his innocence and denied the prosecution case. 4. On analysis of the prosecution witnesses and material on record, learned Addl. Chief Judicial Magistrate, Nahan vide its judgment dated 1.8.1998 has held the accused/respondent guilty of the aforesaid offences and accordingly convicted the accused/respondent. 5. In an endavour to support the prosecution case and assailing the order dated 21.6.1999 of learned Addl. Sessions Judge, Sirmaur District at Nahan passed in Criminal Appeal No. 49-N/10 of 1998, Mr. Rajinder Dogra, Addl. AG has submitted that the accused/respondent, being a Secretary of Co operative Society, was instrumental and was involved in the payment of loan in favour of victim and the learned Add. Chief Judicial Magistrate, Nahan has rightly arrived at a conclusion holding the accused/respondent guilty. As has 5 been submitted by Mr. Dogra, that despite the fact that it is joint responsibility of the Co operative society and other officials to sanction loan, the accused/respondent cannot be absolved from the responsibility when his signatures have been found correct by the signature expert. The appraisal of the prosecution witnesses have not been made correctly by the first appellate court. The prosecution case was based on documentary evidences and not concocted, as such, acquittal of the respondent/accused was illegal. 6. Whereas on the other hand, Ms. Shikha Thakur, learned counsel arguing on behalf of the respondent has submitted that the opinion of the signatures expert cannot be said to be conclusive proof in absence of corroboration by independent and reliable prosecution witnesses. The accused/respondent has falsely been implicated in the aforesaid offences. 7. While adjudicating the criminal appeal against the acquittal, this Court has to see that whether the accused/respondent is to be given the benefit. Relying on the decision of Supreme court in Chandrappa and others Vs. State of Karnataka 2007 (4) SCC 415, Ms. Shikha Thakur, has submitted that the first appellate court ( Learned Addl. Sessions Judge, Sirmaur ) has rightly arrived at the conclusion that on analysis of the testimony of prosecution witnesses, two versions, one favouring the prosecution and the other favouring accused is emanating. As such, the benefit should be given to the accused/respondent. 8. Ms. Shikha Thakur has also invited our attention towards the testimony of a few prosecution witnesses, i.e. PW-6, PW-7 and PW- 8. 6 9. PW-6 Budhia has stated that his loan case from the Co-operative society was sanctioned for Rs. 5,000/- but accused had made only payment of Rs. 3,000/- as loan to him. The police had obtained his finger and thumb impressions in the court of Tehsildar, whereas he never received any amount except Rs. 3,000/-. It is denied in cross examination that he had obtained Rs. 3500/- and voluntarily stated that only Rs. 3,000/- were received by him. Besides him, Sajnu, Kalia, Hariya, Dadlu and Hukmi Ram had also taken loan and appended their signatures. 10. PW-7 Raiya as per his statement was granted loan of Rs. 1000/- from Ludhiana Co operative Society but accused present in the court had made payment of Rs. 700/- only to him and the rest of the amount has not till date been received by him. The police had obtained his signatures Ext PW-7/A, Ext PW-7/B and Ext PW-7/C in the court of Tehsildar, Sangrah. It is stated in cross examination that Dadlu son of Sh. Sadhu Ram had also taken loan in his presence and he stood his surety. 11. PW-8 Mohan Singh has stated that he was granted loan of Rs. 25,00/- about 4/5 years back from Ludhiana Co operative Society but accused present in the court had made payment of Rs. 1700/- only to him and the rest of the loan amount was never received by him. The police had obtained his finger prints in the court of Tehsildar, Sangrah. In cross examination Kalia and Devi Ram had also taken loan in his presence and he stood as their sureties. Admittedly, Rs. 1700/- out of Rs. 2500/- was paid to him after deduction of share money, interest and instalment. The President, Ludhiana, Co operative Society, Up Pradhan, Members and Sub Inspector were present at the time of 7 disbursement of said loan. Sajnu, Kalia, Hariya, Dadlu, Ratnu, Devi Ram and Hukmi Singh have also received loan on the same day when he received the said loan amount. 12. Refererring to the testimony of PW-7, PW-7 and PW-8, it has been submitted by Mr. Shikha Thakur that on the same date allegations have been made that the disbursement of loan was made in the name of complainant, whereas nothing is emanating from the testimony of prosecution witness, namely, PW-6, PW-7 and PW-8 that any of such loan was ever granted to the complainant. 13. Ms. Shikha Thakur has also submitted that the testimony of other prosecution witnesses, namely, PW-16, PW-17 and PW-18 are relevant, as such, these are given as below: 14. PW-16 T.C. Gupta, Assistant General Manager, H.P.State Co operative Bank, Shimla who remained posted as District Manager, HP Co operative Bank, Nahan from March, 1992 till July, 1993 has stated that on the recommendation of Branch manager, Co opeataive Bank, Dadahu, he had sanctioned Medium Term Loan of Rs. 1,78,000/- on 4.2.1993 and sanction letter Ext PW-16/A in this respect bears his signatures. This witness was not put to any cross examination by the Ld. Defence counsel. 15. PW-17 Hira Singh Tomar, Manager, Co operative Bank, Paonta Sahib, who remained posted as manager Co operative Bank, Dadahu Branch from 1989 till 1993 has stated that he had sent M.T. Loan of Rs. 1,78,000/- of 44 persons (Loanees) pertaining to Co operative Society, Ludhiana to District Manager, Nahan for approval on 9.2.1993 and on receipt of its sanction, the aforesaid loan amount was 8 advanced by him. He issued certificate Ext PW-17/A which is certified with red ink and bears his handwriting and signatures. 16. PW-18 Assistant Registrar, Co operative Society, Nahan, who remained posted as such since 3.8.1991 has stated that loan is advanced to members of committee by the Co operative Society and the members aspiring for loan apply to the co operative society. The loan is sanctioned on the basis of the land of every loanee after filling up the proforma issued by the bank. This decision as to how much loan is to be disbursed and to whom is made by members in General meeting of Co operative Society and after completion of the entire cases, it is forwarded to Inspector, Co operative Society and thereafter, it is received in his office. He had received loan case of Rs. 1,78,000/- of Co operative Society, Ludhiana on which he had recommended its M.C.L’s. In cross examination MCL recommendation letter is not in the file rather his recommendation on the MCL is Ext PW-18/A which bears his signatures. 17. PW-37 Shiv Kumar Khosla, Inspector Co operative Society, Sangrah from September, 1991 has stated that he was present at the time of disbursement of loan and it was disbursed to about 20 persons in his presence though he does not recollect its date and month. The loan was disbursed properly by the accused in his capacity as Secretary, Co operative Society and no embezzlement was made, however, he came to know about the embezzlement on the part of the accused from the paper. It is the responsibility of the Secretary who executes the pronote and distributes the loan as per the orders of Managing Committee. He also maintains the entire record of ledger etc. It is the responsibility of the Managing Committee to identify the loanee 9 and to disburse the loan which comprised of Pardhan and UP Pardhan, treasurer and 3 to 5 members of the committee. The Sub Inspector Rajesh was also with him and he leaving the said Rajesh Tomar there had left for Tikri Dhasakna Co operative society as per his tour programme. Thereafter, the matter was reported to the police. He along with Assistant Co operative Society, Nahan inquired into the whole matter. Thereafter, he prepared audit report Ext PW-37/A under his handwriting and signatures and also prepared documents Ext PW37/C, Ext PW-37/D, Ext PW 37/E, Ext PW 37/F and Ext PW 37/G under his handwriting and signatures. He has attested the documents Ext PW- 37/H containing seven sheets, Ext PW-37/J, Ext PW 37/K, Ext PW 37/L, Ext PW 37/M and Ext PW 37/N. He has recorded all the shortcomings in the working of co operative society, Ludhiana in his audit report Ext PW-37/A. 18. PW-38, Rajesh Kumar, Inspector Grade-II, Co operative Society, Sangrah has stated that in February, 1993, he and Inspector Shiv Kumar Khosla Co operative Society, Ludhiana have visited Ludhiana for disbursement of loan of Co operative Society, Ludhiana. Loans were disbursed to the people by Managing Committee and accused present in the court. On the next day, Shiv Kumar left for Tikri Dhasakna and thereafter loan was disbursed in his presence by Secretary and Managing Committee and thereafter accused completed the record. He tallied the record and attested loan disbursement statement. The loan disbursement statement Ext PW-19/D bears his signatures as Ext PW-38/A in red circle.The pronote book, Disbursement Statement are drawn by the Secretary at the time of loan disbursement. It is admitted in cross examination that he appended his 10 signatures Ext PW-38/A on the loan disbursement Statement after tallying the record of the loanees with the said disbursement statement and as per him, the aforesaid loan was disbursed properly to the persons mentioned in the said loan disbursement statement. 19. It has also been submitted by Ms. Shiksha Thakur that undoubtedly in view the testimony of PW-1, PW-2, PW-3, PW-4 and PW-5 including PW 31 and PW-32, it appears that they did not apply for the loan nor any disbursement was made to them, which testimony was belied by other witnesses. The independent witnesses produced by the prosecution from whose testimony it appears that all 44 persons who were the members of Ludhiana Co operative Society including the aforesaid persons did apply for the loan and they received the amount on 10.2.1993 and 11.2.1993. The relevant paragraph of Chandrappa (supra) is quoted as below, whereby it has been held; “The following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an 11 appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion; (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court; (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 20. In view of the submission of Ms.Shikha Thakur, we have now analyzed the prosecution witnesses and material on record and notice that the testimony of hand writing expert and the report of ginger print experts are not being corroborated by other evidences of prosecution including the independent witnesses. As such, the testimony of hand writing expert and finger print experts cannot be conclusive in support of the prosecution case. The testimony of PW-6, PW-8, PW-9 and PW-10 including PW-37 and PW-38, shows that the loan was disbursed in a proper manner by the accused/respondent to all the 44 persons including Sajnu, Mohan Singh, Dadlu, Sunder Singh and others and it is doubtful that the accused was responsible of the allegations indicated by the complainant. 21. Learned trial court has also found that two versions were possible in view of the testimony of prosecution witnesses, as such, the 12 observations of Supreme Court in Chandrapp & others (supra) is to protect the accused/respondent. 22. In our considered view , prosecution has failed to prove its case beyond reasonable doubt. We find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed. 23. Bail bonds, furnished by the respondent/accused, are hereby discharged. ( R.B.Misra ), J. 18th August, 2010 ( V.K.Sharma ), J. (sl) 13