State Of Maharashtra vs Ramesh S/O Moreshwar Upadhye
2007 Latest Caselaw 642 Bom

JUDGMENT

S.R. Dongoankar, J

1. All these three appeals arise out of the common judgment delivered by 6th Additional Sessions Judge, Nagpur, in Criminal Appeal Nos. 89/91, 95/91 and 96/91, preferred by the respondent herein, against his convictions and sentences passed in Criminal Case No. 377/1988, 378/1988 and 379/1988 by Chief Judicial Magistrate, Nagpur.

2. The respondent was prosecuted for the offences under Section 408, 467, 468, and 477-A of the Indian Penal Code in the aforesaid three criminal cases before the Chief Judicial Magistrate, Nagpur. It was mainly alleged that the respondent was working as Clerk Cum Cashier in the company -Brook Bond India, Packing Factory, Kanhan, Nagpur in the year 1973, 1974 and 1975, i.e. during the period of alleged defalcations. The period of defalcation was divided into parts i.e. first from 19.12.1973 to 18.12.1974, second from 19.12.1974 to 18.12.1975 and third from 19.12.1975 to 31.12.1975. It is alleged that during this period, he was working as Clerk -Cum -Cashier in Brook Bond Indian Packing Factory, Kanhan, Nagpur. His duty was to pay the amounts on IOU Slips to the transporters for paying the relevant octroi charges. Thereafter to receive the original octroi receipts and then to pay the appropriate amount regarding each octroi payment and then to take the entry in the relevant registers including the Petty Cash Register. It is alleged that during these three periods, the respondent accused was entrusted with various amounts and he had committed defalcation of Rs. 33,119/-, 59,000/-and Rs. 24000/-in each of the periods stated above. It is also alleged that the accused has caused interpolations in the octroi receipts and thereby showed more amount paid than what was actually paid and thus the excess amount was converted by him for his own use. Therefore, it is alleged that he had forged some receipts and also did not account for the money paid to him for the payments towards the octroi receipts and he did not take the proper entries in the Petty Cash Book as well as relevant registers. Attributing criminal intent he was charge sheeted in the aforesaid criminal cases for the offences under Section 408, 467, 468, and 477-A of the Indian Penal Code.

3. Learned trial Judge after framing the relevant charges, conducted trials. Respondent accused had denied the guilt. Evidence was recorded in one case i.e. in Criminal case No. 377/1988 for all three cases.

4. Prosecution has led evidence of witnesses. Respondent also examined one defence witness. On appreciation of the evidence, the learned trial Judge held respondent guilty in Criminal Case No. 378/1988 of the offences punishable under Section 408, 467, 408 and 477-A of the Indian Penal Code. He was convicted for the offence under Section 408 of the Indian Penal Code in other two cases. He was sentenced to various terms as recorded by the learned trial Judge.

5. The respondent carried the matters to the court of Sessions at Nagpur in Criminal Appeals No. 96/1991, 89/1991 and 95/1991. Learned 6th Additional Sessions Judge, Nagpur, after hearing the parties found that the case against the respondent was not established in any of these cases beyond reasonable doubts. He also found that the material evidence was not led by the prosecution and the evidence which was on record did not implicate the respondent beyond reasonable doubts for the offences alleged and even for the offences for which he was found guilty by the learned trial Judge. Therefore, he acquitted the respondent in all the cases by allowing these appeals by his common judgment dated 26.4.1992.

6. This judgment of acquittal of the respondent in all these criminal cases, is challenged by these appeals.

7. It is necessary to mention; before proceeding further, the nature of evidence adduced by the prosecution for proving case against respondent. The report against respondent was lodged by Factory Manager by name Ravi Vij as per Ex. 34 upon which the offence was registered as Ex.35, however, he was not examined and instead prosecution led the evidence of P.W. 1 Subramaniam K. Sundaram Iyer, who was working as Personal Assistant to Factory Manager at the relevant time. He is witness to seizure memo of the documents from the office Ex.40, as well. P.W. 2 Anand Khode is Inspector working in Octroi Department of Nagpur Municipal Corporation. He has been examined to prove certain invoices i.e. octroi receipts to establish before the court that the carbon copies of the said octroi receipts showed different amounts and original octroi receipts by making interpolations were made to show more amount. P.W. 3 Bhaskar Sathe is the administrative manager of company. He has conducted Departmental Enquiry against respondent. P.W. 4 Wadiya is officer of company who deposed about alleged confession by respondent and also regarding taking of specimen Handwriting of respondent. P.W. 5 Fiske is Hand Writing Expert who has been examined to show that disputed octroi receipts Ex. 253, 375, 360 and 426 were interpolated and the said interpolation and handwriting was tallying with the handwriting of the respondent on the basis of the specimen handwriting of the respondent. His opinion and reasons are at Ex.427 and Ex. 429 respectively. P.W. 6 P.I. Patil has filed charge sheet against the respondent. P.W. 7 P.I. Bhagwan Bahadule has came to depose regarding, seizure memos of the documents, the records from company office and also records from the octroi office also about taking specimen handwriting of the respondent and seizure of octroi receipts as per various exhibits.

8. One D.W.1 Jayant Kotwal was examined by the respondent who was State Examiner of Documents of Nagpur. He has given opinion as per Ex.446 regarding the disputed documents to controvert the evidence of Handwriting Expert Fiske (P.W.5).

9. Learned A.P.P. Shri Loney has submitted that the appellate court has taken a very wrong view of the matter. According to him, the learned trial Judge has appreciated the evidence available on record in proper perspective and ultimately found the same cogent and convicing for basing the conviction of the respondent for the offences mentioned in his judgment. According to him, it was a clear case of showing more payments towards octroi than actual payments and all the interpolations were done by respondent. He had taken false entries in Petty Cash Book and the entrustment of the money to the respondent is established. It is also established that less amount than which are shown in the octroi receipts was paid by him and therefore, he had misappropriated the amount entrusted to him as alleged by the prosecution. According to him, the appellate court has drawn unwarranted inference for the lapses on the part of the prosecution and regarding non examination of the complainant an other officers of the company and also transporters and octroi officials. According to him, the prosecution has proved the entrustment, the evidence of Handwriting Expert Fiske was adduced to show that the octroi receipts were forged by the respondent and therefore, according to him the findings of the conviction and sentences as recorded by the learned trial Judge should be restored by quashing and setting aside the impugned judgment of the appellate court.

10. As against this learned Counsel for the respondent Shri B.V. Gaikwad submitted that the learned appellate Judge has taken the correct view of the matter. He has submitted the prosecution has failed to lead the material evidence on record to connect the respondent with the alleged offences. According to him, evidence of Octroi Inspector, was quite general in nature and no evidence was led by the prosecution to show that in fact less amount than what was depicted in the original octroi receipts was paid and the amount of difference was misappropriated by the respondent. According to him, there was possibility of the octroi officials passing receipts for more amount than what was mentioned in the carbon copies thereof to misappropriate the money. He also contended that because the octroi receipts were verified by the complainant; the manager of the company, before payments, the respondent can not be said to have misappropriated the said amount inasmuch as his duty was only to pay the amounts on verification by his manager. It is submitted by the learned Counsel further that view taken by the learned appellate Judge can not be said to be perverse or unsustainable at law. In any case, his view is plausible and therefore, even if there are two views, the view recording the acquittal taken by learned appellate Judge can not be overturned in these appeals.

11. In support of his submissions, he has relied on certain authorities; (1996) 1 SCC 20 Bhagirath v. State of Madhya Pradesh wherein it was held by the Apex Court that -the Prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the Court, on its own, make out a new case for the Prosecution and convict the accused on that basis.

12. He further relied on [Habib Mohammad v. State of Hyderabad] wherein it has been held that -when material witnesses are not produced by the prosecution; adverse inference against prosecution would be justified.

13. He has also relied on [Ashish Batham v. State of M.P.] wherein it is held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, howsoever strong it may be, can not take place of legal proof.

14. He has also referred to (2007) 1 SCC (Cri) 113 [Samghaji Hariba Patil v. State of Karnataka], wherein in paragraph 17 it has been observed that-while dealing with the case of acquittal, it is well known, the High Court shall not ordinarily overturn a judgment if two views are possible.

15. In this regard, it may also be stated that in (2007)1 Supreme Court Cases (Cri) 50 V.N. Ratheesh v. State of Kerala] the Apex Court has observed that the judgment of acquittal can be interfered with only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing material have been unjustifiably eliminated in the process, it is the compelling reason for interference, however when two views are possible, one pointing to the guilt of the accused and the other to the innocence, view which is favourable to the accused should be adopted. In the present case, not only the view favouring to the respondent is possible, but there are so many circumstances against the prosecution itself. As such on these grounds also interference in the judgment of the appellate court to acquit the respondent is not possible.

16. With the above legal position in mind, we have to assess the judgment of the learned appellate Judge.

17. It is needless to state, Factory manager is not examined by the prosecution, only Personal Assistant is examined who deposes about the duties of the respondent as well as about the facts in the case, admittedly he does not seem to have verified any of the octroi receipts before allowing any payment. He does not depose that he had seen Factory manager sanctioning each octroi payments, on its verification of receipts and after sanction there was any interpolation in the said receipts. It is also not in his knowledge as to what amount was received by the respondent for making payments towards octroi, how much octroi was in fact paid, and how much was shown to have been paid, his evidence appears to be of quite general in nature and that too not clearly by his personal. observations.

18. In this context, the learned appellate Judge has observed that story of the prosecution was that there was contract between the transporter and the factory, transporter was to carry consignments from Kanhan to Nagpur. Factory used to pay octroi charges in advance to the carrier, carrier used to pay these charges at Octroi Naka. He used to obtain the receipts about the payment at Octroi Naka. After reaching the goods to Nagpur; the carrier/transporter either on the next day or on the same day or within such reasonable period used to come back to Kanhan Factory. Then they used to submit receipts of payment of octroi charges to office. Manager used to verify the receipts and sign them and thereafter, the said receipts used to come to the respondent. He has clearly observed that whatever receipts are produced before the court, show that the amount mentioned in those receipts are entered in the daily cash book which is final account of the factory and therefore, there is no change in the account, as such, there is no alteration in the original accounts because according to the prosecution the originals themselves were considered for payments by factory through respondent.

19. With this procedure in mind, it would be evident that it was necessary for the prosecution to examine the octroi officials to show that they had issued particular receipts, they were tallying with the carbon copies of the same, but later on; when they passed from hands to hand, i.e. when they reached to the respondent they were not the same as their corresponding carbon copies, and there were some changes made by the respondent to suit his purpose and none other could do it. Learned appellate Judge has considered the evidence of Handwriting Expert and found that it was not possible to hold that it was respondent and respondent only, who had opportunity to forge receipts or to make interpolations in the receipts and misappropriate and collect the excess amount. The learned appellate Judge has considered the aspect of not examining Factory Manager, who was the complainant and who had in fact sanctioned the amounts, almost about 80% of the alleged forged receipts. It is difficult to say that adverse inference as drawn by him against prosecution for non examining him; is illegal. He has rightly observed that he should have tendered evidence about the fact as to whether forgery was done before passing the payments by him or after passing of the same by him. Factory manager was at the helm of the management of the factory, had there been any forged receipts, he could have noticed the same and as he was not examined, adverse inference against the prosecution case was inevitable. It would be seen from his judgment that the evidence of P.W. 1 Subramanian was held and rightly to be insufficient to prove the prosecution case. He has rightly pointed out that had the investigating authorities careful enough, they could have certainly found out the whereabouts of the said manager and brought him for leading the essential evidence.

20. Learned appellate Judge has observed correctly that the prosecution has not examined the transporters, which was the main link for accepting money from the respondent to pay the octroi and bring receipts. They could have deposed as to the exact amounts of payments of octroi and accounting for larger amounts by the respondent. Then alone respondent would have been required to explain. Although, it may not be a case of suspicion against Factory Manager, but then inference drawn by the learned appellate Judge that he had also an opportunity to forge the receipts, can not be said to be baseless. He has rightly pointed out that the respondent could have also acted at the instance of of his superiors. His negligence in verification of octroi receipts also can not lead to the finding of guilt against him.

21. Learned appellate Judge has also observed about possibility of octroi officials to take original receipts which were written by pencil for more amounts than mentioned in carbon copies and thereby suggesting more amounts paid towards octroi making respondent to pay that much amount; without knowing; that the amounts written in carbon copies of the said receipts were for smaller amounts.

22. It is contended by the learned A.P.P. that as the respondent might have information that the rate of octroi was 3% and even then more amounts were paid towards octroi, he could have brought this fact to the notice of the Factory Manager and as he has not done so, he is proved to be guilty. Again this would be a case of suspicion. Firstly even it is assumed that rate of octroi was 3% , there is nothing on record to suggest that even after verification of the receipts by Factory Manager, he was again, duty bound to examine those receipts. In such circumstances, if the receipts are verified by the Factory Manager he made payments accordingly, no criminal liability can be fastened on the respondent; just for his negligence of not bringing the discrepancies to the notice of Factory Manager again, after passing of the same for payments by him.

23. Here is the case where it is also alleged that before the enquiry officer, respondent has confessed his guilt and therefore, it is submitted he should be held guilty. Learned appellate Judge has rightly observed that the respondent has given alleged confession but the same was not voluntary. It has been observed by the learned trial Judge that the confessional statement dated 1.4.1976 was clearly obtained by the person in the authority over the respondent and therefore, in view of the letter of the respondent dated 19.2.1976 and hence the said confession can not be relied upon in view of evidence of P.W. 4 Wadiya.

24. In any case it does appear that there was opportunity to many persons to forge octroi receipts and obtain the payments on the basis these receipts; which possibly without verification or interrogation the respondent had paid and made its account in the Petty Cash Book and the account registers. It is no case of the prosecution that less amount was paid and more amount was shown in the cash book. All that is contended is that payments shown in the octroi receipts were more than what were actually paid as per carbon copies.

25. During the course of hearing; we had called for the relevant registers and carbon copies for appreciation. However, they were not available. As such it is impossible to hold that the view taken by the learned appellate judge is incorrect.

26. Apart from this; there appears evidence of D.W.1 Jayant Kotwal, Handwriting Expert who is retired State Government Examiner of the documents of the Maharashtra State. He had examined the questioned documents in the present case and thereafter, he came to the conclusion that he can not form any opinion on the basis of the available documents. He has also stated that, he can not make out his opinion if questioned documents bear only one or two letters or one or two figures. He can not also form any opinion whether the figures or letters are superscribed. He also stated that he has given reasons for forming his opinion immediately after his observation. There is nothing substantial in his cross examination to show that he is deposing false.

27. No doubt he has not stated that interpolation in writing are not in the hands of the respondent, fact remains that he has stated that on the basis of available record; no opinion can be formed.

28. In view of this, evidence of P.W. 5 Fiske can not fasten criminal liability on the respondent; for the obvious reasons and more so because the material witnesses have not been produced by the prosecution so as to conclusively show as to what amount was entrusted to him for making payments towards octroi, what amount was actually paid towards octroi, what was the amount shown excess and he misappropriated. Merely because he had opportunity to cause interpolation in the receipts and there was confession in the departmental proceedings, he can not be held liable for the criminal offences in the above view of the matter.

29. With the help of the learned Counsel, we had examined one receipt Ex.245. It depicts the figure of octroi charge Rs. 1,322.52 [One thousand three hundred twenty two and paise fifty two only., however it is stated in figure to be 2322.52, meaning thereby Rs. 1000/-excess. There are two writings of figures in red ink which show figure of 2322.52. One of the said writing bears initials. This receipt shows the signature of Factory Manager and stamp as verified. It clearly means that even while sanctioning; Factory Manager or his P.A. if at all he had verified, did not notice that there is world of difference between two amounts i.e. in words and in figures as regards the octroi amount to be paid. If the amount of Rs. 2322.52 is paid, as admitted by the prosecution as well as respondent, the blame can not be only on the respondent. There is no explanation on the side of prosecution as to why despite such serious discrepancy the amount of Rs. 2322.52 is alleged to have been paid on sanction. Although it might be expected of the respondent to bring this discrepancy to the notice of his superior officials including Factory Manager, that lapse by itself will not constitute criminal offence, may be for some reason it may lead to the departmental proceedings. It is necessary to mention that almost all receipts produced by the Prosecution on record show figures in red ink, as a token of verification of the octroi paid the amount which was to be disbursed by the respondent as per the account register and Cash book. In fact some of the receipts show right mark. [ /] including this Ex.245; on the figure mentioned in red ink, which means that the figures were verified by some person and after that; the amounts were paid. It is not the case of the prosecution that the figures in red ink were written by the respondent to facilitate misappropriation, nor there is any suspicion against respondent in that behalf. This aspect will also lead to the conclusion that the case against the respondent is of mere suspicion may be; some what thick, but as per settled law, mere suspicion can not take place of proof and fasten criminal liability, for the offence against any person.

30. Learned A.P.P. has relied on AIR 2006 SC 266 V.N. Ramchandra v. State of Kerla, wherein it has been observed that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is not less from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.

31. In our opinion, here is the case where the prosecution has relied on the evidence which can not lead to the guilt of the respondent conclusively or beyond reasonable doubt. It did not produce the material evidence on record i.e. of transporters, of Manager and octroi clerks the material documents and registers i.e. carbon copies of octroi receipts, were not produced for perusal. Adverse inference drawn for non production of material evidence by the prosecution, can not be said to be illegal. The judgment of the learned appellate Judge acquitting the respondent can not be said to be perverse and therefore, all these appeals need to be dismissed. The same are dismissed.