Judgment Case ID: 2394

Judgment:
iminal Appeal No. 47 of 1966. Appeal by special leave from the judgment and order dated September 6	 1965 of the Patna High Court in Government Appeal No. 23 of 1962. B. P. Singh and D. N. Misra	 for the appellant. D. P. Singh and K. M. K. Nair	 for the respondent. 173 The Judgment of the Court was delivered by Vaidialingam	 J. On behalf of the sixth accused	 the appel lant herein	 in this appeal	 by special leave	 Mr. B. P. Singh	 learned counsel	 challenges the order of the Patna High Court	 dated September 6	 1965	 setting aside the order of acquittal	 passed by the Second Additional Sessions Judge	 Muzaffarpur and convicting him for an offence	 under section 467	 read with section 109	 IPC.	 and passing a sentence of three months ' rigorous imprisonment. For the relief and rehabilitation	 of people who had suffer ed	 in 1954	 by the heavy floods in Sitamarhi Sub Division	 the Government of Bihar was granting loans to needy and suitable persons	 under the Agriculturist 's Loan Act	 1884. The appellant was a Mukhtear	 practising at Sitamarhi. There are certain formalities	 to be gone through	 in the matter of obtaining the loans	 under that Act. One of the requirements was that an applicant had to put his signature	 on an agreement form and	 that he should be identified	 by a lawyer	 who should also attest his signature. Several officers	 connected with this Loan Department	 including the Mukhtears practising at Sitamarhi	 one of whom was the appellant	 were alleged to have entered into a conspiracy	 between November 19	 1955 and December 22	 1955	 to cheat the Government	 by inducing it to grant loans	 in the names of fictitious persons	 and	 in pursuance of that conspiracy	 two applications	 for loans in the names of two fictitious persons	 Durga Singh and Hari Shankar Singh	 were filed before the Sub Divisional Officer	 Sitamarhi. According to the prosecution	 the appellant and another Mukhtear. Devendra Prasad	 had certified	 in the loan applications of Durga Singh and Hari Shankar Singh	 that they knew those parties and that they had signed	 in their presence. The amounts were drawn	 in the usual course	 from the treasury	 by the said two persons; and	 ultimately	 it came to light that the two persons were fictitious persons	 got up by the several accused. The appellant admitted having attested	 in the loan applications of the two individuals concerned	 but he stated that he did so	 on the assurance of one Sheojee Prasad Karpardaj. It may be stated that this Sheojee Prasad Karpardaj was also charge sheeted	 but he has been discharged	 even by the committal Court. The learned Sessions Judge found	 on the evidence		 that Durga Singh and Hari Shankar Singh were fictitious persons and a fraud was committed	 on the Sub Divisional Officer	 Sitamarhi	 and the Sub treasury	 as a result of which the Government sustained a loss of Rs. 1	000/ . The learned Sessions Judge accepted the appellant 's plea that he had made the endorsement on the 174 assurance of Sheojee Prasad Karpardaj and	 in view of the fact that other Mukhtiar	 Devendra Prasad	 had also attested the loan applications	 and acquitted him. This Devendra Prasad had also charged	 for the same offence. While admitting	 having attested the signatures of the applicants for the loan	 Devendra Prasad had set up a plea that he did so	 on the assurance	 given by one Rudradeo Singh. This explanation has been accepted	 by the trial Court and Devendra Prasad was acquitted. But	 when the State appeal	 against acquittal	 was pending in the High Court	 Devendra Prasad died. But	 we have to refer to certain observations	 made by the High Court	 regarding this Devendra Prasad	 which have	 more or less	 formed the grounds	 for setting aside the order of acquittal of the appellant also. The High Court	 on appeal	 by the State Government	 has set aside the order of acquittal of the appellant. Two reasons so far as we could see	 have been given	 by the High Court	 for interfering with the order of acquittal	 viz. : (i) that though the appellant raised a defence that he attested the loan applications	 on the representation and assurance of Sheojee Prasad Karpardaj	 no evidence has been let in	 by the appellant	 to support this defence: and (ii) Devendra Prasad	 with whose case the appellant 's also was closely connected	 had raised a plea that he attested the loan applications	 on the assurance and representation of Rudradeo Singh and that Devendra Prasad has not examined himself as a witness	 under section 342A	 Cr.P.C.	 nor did he adduce any other evidence	 in support of his claim. It is really	 on these grounds	 that the appellant has been convicted	 for the offence under section 467 read with section 109	 IPC.	 and sentenced to undergo rigorous imprisonment	 for a period of three months. We are satisfied that the order of the High Court cannot be sustained. Regarding the first point	 mentioned above	 the High Court has really thrown the burden of proof on the appellant	 instead of finding out whether the prosecution has proved its case and whether the order of acquittal is erroneous. Regarding the second point the High Court has really committed a breach of the proviso to section 342A	 when it has commented upon the nonexamination of Devendra Prasad	 that he has not examined himself	 as a defence witness. Under cl. (b)	 of the proviso to section 342A	 Cr. P.C.	 it is specifically provided that the failure of an accused to give evidence	 shall not be made the subject of any comment	 by any of the parties	 or the Court	 or give rise to any presumption against himself	 or any person charged	 together with him	 at the same time. The High Court has stated that the case of the appellant is closely connected with that of Devendra Prasad. In fact	 the appellant had pleaded that he had attested the signatures of the applicants	 for the loans	 because Devendra Prasad	 another Mukhtear	 had attested the same 175 and also on the assurance of one Sheojee Prasad Karpardaj. Devendra Prasad had taken a plea that he had attested the signatures of the applicants	 on the assurance of one Rudradeo Singh	 a class mate of his. It is in considering this plea that the High Court has commented upon the failure of Devendra Prasad to give evidence under section 342A	 and the High Court has also taken the view that the same reasons will apply to the appellant 's defence also. That is	 the failure of the appellant	 to give evidence	 has been commented upon	 by the High Court	 and it has also drawn a presumption	 against him. 	 both of which are illegal	 under clause (b) of the proviso to section 342A	 Cr. In view of this serious infirmity	 in the judgment of the High Court	 the order	 under attack	 is set aside	 and the order of the Second Additional Sessions Judge	 Muzaffarpur	 acquitting the appellant		 will stand restored. In the result	 the appeal is allowed. G.C. Appeal allowed.

Summary:
The appellant was a Mukhtear practising in Bihar. He along with 	some others attested the identity of certain persons on applications for loans under the Agriculturists Loan Act	 1884. It was found that the applications had been made under false names and the appellant along with other accused was tried for an offence under section 467 read with section 109 I.P.C. The appellant 's plea was that he had made the endorsements on the assurance of a co accused and in view of the fact that another Mukhtear	 D had also attested the loan applications. D 's plea as an accused was that he had made the attestation on the assurance of one R. The Sessions Judge acquitted all the accused. The State of Bihar appealed to the High Court. During the pendency of the appeal D died. The High Court set aside the acquittal of the appellant and convicted him on two grounds namely	 (i) that though he had raised a defence that he had attested the applications on the assurance of S	 no evidence had been produced to support this defence		 (ii) that D with whose case the appellant 's case was closely connected had not examined himself under section 342A of the Criminal Procedure Code in support of his plea	 and the same consideration applied to the appellant also. On appeal to this Court by special leave. HELD : The order of the High Court could not be sustained. (i) In requiring evidence in support of the plea raised by the appellant the High Court really threw the burden of proof on him instead of finding out whether the prosecution had proved its case and whether the order of acquittal was erroneous. [174 F] (ii) In commenting on the failure of the accused to examine them	selves on oath under section 342A Cr. P.C. the High Court committed a breach of the proviso to that section which specifically states that the failure of an accused to give evidence shall not be made the subject of comment by any of the parties	 or the court	 or give rise to any presumption against himself or any other person charged together with him at the same time. [175 B]