The State Of Mah vs Ramkrushna Prahllad Dongardive
2017 Latest Caselaw 8105 Bom

                                      1          Cr Appeal 278 of 2002

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                       Criminal Appeal No.278 of 2002


     The State of Maharashtra
     Through the P.S.I. Kranti Chowk
     Police Station, Aurangabad.               ..    Appellant.

             Versus

     Ramkrushna Prahllad Dongardive,
     Age 38 years,
     R/o. Building No.6, Block No.61,
     M.I.G. Mahada Colony,
     Aurangabad.                      .. Respondent.

                                     ----

     Shri. P.G. Borade, Additional Public Prosecutor, for
     appellant.

     Shri. B.S. Kudale, Advocate, with Shri. R.S. Deshmukh,
     Advocate, for respondent.

                                     ----

                                Coram:      T.V. NALAWADE &
                                            S.M. GAVHANE, JJ.

               Judgment reserved on          : 29 September 2017

              Judgment pronounced on : 12 October 2017


     JUDGMENT (Per T.V. Nalawade, J.):

1) The appeal is filed by the State against the

judgment and order of acquittal given in favour of the

2 Cr Appeal 278 of 2002

respondent by the learned Chief Judicial Magistrate,

Aurangabad in Regular Criminal Case No.80163/1996.

The respondent is acquitted of the offence punishable

under section 409 of Indian Penal Code. Both the sides are

heard.

2) In short, the facts leading to the institution of

the appeal can be stated as follows :

The respondent was working as Cash Counter Clerk

in the office of Telephone Department situated at Anvikar

Building, District Engineer Office, Aurangabad. The

misappropriation of the amount took place between the

period from 1-7-1993 to 9-10-1993. His duty involved

acceptance of bill amount from the customers of

telephone department, issue receipt of the amount paid by

the customer and prepare list of the customers who had

paid the bills on every day. He was to deposit the amount

received by him till 1.00 p.m. on everyday in the account

of the office in the bank and the amount received

subsequently was to be handed over to the Main Cashier

along with the aforesaid daily list. During the aforesaid

3 Cr Appeal 278 of 2002

period he collected amount of Rs.8,73,737/-. He did not

deposit the amount received prior to 1.00 p.m. daily. The

misappropriation was detected as the other Clerk who

was in-charge of the Subscriber Record Card and who was

expected to issue show cause notice if the amount of bill

was not deposited in the prescribed time, issued such

notices and some customers came to the office with the

receipts of the amounts paid by them. As per the

procedure on the basis of the daily list prepared by the

respondent, entries are required to be made on

Subscriber Record Card and as the accused had not

mentioned the names of so many customers in the daily

list and the amount was also not deposited in the bank

account and no amount was handed over to the main

cashier, such notices were issued by the Clerk in charge of

the Subscriber Record Card. The office realized that the

receipts shown by the customers to whom show cause

notices were issued were not from the authorised receipt

books. Due to these circumstances show cause notice was

issued to the respondent. He did not reply the notice. He

then did not turn up to the office.

                                               4          Cr Appeal 278 of 2002

     3)               Due       to     the   aforesaid     circumstances             the

Department of Telephone made inquiry and it noticed that

amount of Rs.3,88,035/- was deposited by the accused late

in the bank by creating duplicate receipts in authorized

receipt books but he had not deposited the amount of

Rs.4,75,702/- which was collected from customers.

Accused then produced some record like a receipt book

No.552 and gave a letter to inform that he had not turn up

as he was collecting money to deposit it in office. As the

accused did not offer proper and satisfactory explanation

the report was given and the crime came to be registered

at CR No.304/1993 in Kranti Chowk Police Station

Aurangabad for offences punishable under sections 409,

420, 477 of Indian Penal Code. Police collected copies of

relevant record and statements of staff members of the

office came to be recorded. Some record was recovered

from the house of the accused. Statements of some

customers who had paid amount but whose amounts were

not shown in the daily list prepared by the accused also

came to be recorded. Charge sheet came to be filed for

offences punishable under sections 409, 420, 477 of

Indian Penal Code against the accused. Charge was

5 Cr Appeal 278 of 2002

framed and plea was recorded. The accused pleaded not

guilty.

4) To prove the offences, the prosecution

examined in all 16 witnesses. In the statement recorded

under section 313 of the Code of Criminal Procure, the

accused took the defence of total denial. No defence

evidence is given. The trial Court has held that no specific

substantive evidence is given on exact amount

misappropriated. The trial Court has observed that when

customers have no grievance against the Department, it

cannot be believed that the accused has misappropriated

the amount. The trial Court has discarded the evidence of

recovery of more than 40 documents made from the

residential place of the accused by holding that on the

copy of panchanama or on the list signature of the

accused was not obtained. Thus, on the basis of oral

evidence without referring to the documents which are

duly proved, the trial court has decided the matter.

5) The accused has not disputed that he was

working as Cash Counter Clerk between the period 1-7-

6 Cr Appeal 278 of 2002

1993 and 9-10-1993, for more than 3 months. Copy of

appointment letter on the said post is produced in the

evidence of PW 1 as Exhibit 6. On the basis of inquiry the

report was given by Ashok Joshi (PW 1) and so his

evidence needs to be considered first.

6) Joshi (PW 1) has given evidence on nature of

the duties which were to be discharged by the accused,

Cash Counter Clerk. He has deposed that the accused was

to accept the bill amount from customers as per the

amount mentioned in the bills issued to the customers. He

has given evidence that the amount which was collected

up to 1.00 p.m. every day was to be deposited in the

account of the office which was opened in State Bank of

India. He has deposed that the amount collected after

1.00 p.m. every day was to be handed to the Main Cashier.

He has deposed that it was the duty of the accused to

prepare daily list in respect of the customers who had

deposited the bill amount every day and the list was to be

handed over by the accused to Junior Accounts Officer of

the office. One Mrs. Kolhe was holding that post at the

relevant time. Joshi took over the charge of Smt. Kolhe on

7 Cr Appeal 278 of 2002

31-7-1993 and so he has the personal knowledge about

the incidents which took place after that date.

7) Joshi (PW 1) has given evidence that Padalkar,

another Clerk of the office issued notices to the customers

and one such notice was issued to customer Mr. Adwant

for non payment of telephone bill. He has deposed that

after 4 days, said Adwant came to the office and said that

he had already deposited the bill amount and the notice

was wrongly issued to him. He has deposed that Adwant

showed the receipt to him and due to that on the next day

he made inquiry as to how the notice was issued when Mr.

Adwant had paid the amount. He has deposed that after

making inquiry and due to existence of such receipt he

gave notice to the accused. Office copy of the notice is

proved at Exhibit 7. He has given evidence that the

accused did receive this notice but the accused did not

reply the notice. The contents of the notice show that it

was informed to the accused that subscriber of Telephone

Nos.24530 and 24920 had shown receipt No.031 dated

25-8-1993 issued by the accused but the said amount was

not credited by the accused with the Government till 21-9-

8 Cr Appeal 278 of 2002

1993. It was informed that when the amount was collected

on 25-8-1993 the amount was credited to the Government

on 21-9-1993 and so there was irregularity. This amount

was Rs.3903/-. The accused was asked to explain as to

why he was not having duplicate receipt of receipt No.031

dated 25-8-1993. The accused was expected to explain

within four days. Admittedly, the accused did not respond

to this notice. The contents of this notice are important as

the receipts are required to be mentioned in the daily list

and the receipt book having office copy (carbon copy,

duplicate copy) is also required to be submitted along with

the daily list. Thus, the accused had collected the amount

under Receipt No.031 but in the daily list dated 25-8-1993

he had not shown this amount and the duplicate receipt

with the receipt book was not handed over by the accused.

8) Joshi (PW 1) has given evidence that

subsequent to the notice, the accused submitted to the

office some record regarding the bills but the amount

shown in the receipts of the receipt book were not

accounted, deposited by the accused. The letter with

which the accused produced record is proved at Exhibit

9 Cr Appeal 278 of 2002

11 and the receipt book No.552 is given Exhibit 8 by the

trial court. Exhibit 11 shows that on 9-10-1993 the

accused informed to the office that he had left

headquarters on 4-10-1993 for Nagpur as he was confused

and he was to make arrangement of money. He informed

that he then went to Bombay and from there he returned

to Aurangabad on 8-10-1993. He informed that his wife

had also met his superior officer and he had handed over

all the record to A.O. (Accounts Officer), his superior

officer. Exhibit 8 receipt book shows that the book was

given No.552 and it was supposed to contain 300 receipts.

However, in Exhibit 8 there were blank counter receipts

bearing No.001 to 005 and there was no counter receipt

of 031. He has deposed that the office then prepared the

account in respect of the amount collected by accused

which is Exhibit 9. He has deposed that this account

contains the particulars of amount deposited by accused

late like the amount of Rs.3,88,035 but the accused had

not deposited the remaining amount of Rs.4,75,702/-. He

has deposed on the basis of Exhibits 8 and 9 that the

amount of around Rs.3 lakh was credited by the accused

subsequently, on different dates and not immediately after

10 Cr Appeal 278 of 2002

collection of the amount from customers. He has given

instances in respect of some customers like Mr. Adwant

to show that the amount collected from Adwant of Rs.4930

on 21-8-1993 but the amount was credited with the

Government on 25-9-1993. Joshi has deposed that these

receipts are in the handwriting of the accused and they

are bearing his signatures. The F.I.R. given by Joshi is

proved in his evidence as Exhibit 13. Though it is not

specifically deposed by Joshi that specific number of

receipts were used from Book No.552, when there is

mention about it in F.I.R., on the basis of Exhibit 8, receipt

book having duplicates, it can be said that as many as 105

receipts from this book were used by the accused though

some carbon copies of the receipts like receipt Nos.001 to

005, receipt Nos.037 to 040 were blank from these

numbers. On Exhibit 9, the account prepared there are

some entries, the receipt numbers and they show that

these amounts were subsequently deposited. Evidence is

given by Joshi that Exhibit 9 was prepared by office and in

it the office has shown the mount of Rs.3,88,035 as

already deposited and the amount of Rs.4,75,702 as the

amount which was not deposited by accused. This record

11 Cr Appeal 278 of 2002

was handed by the Telephone Department to police during

investigation. It is brought on record during cross-

examination of Joshi (PW 1) that Exhibit 9 was prepared

by the office on the basis of record. Thus it cannot be said

that no specific evidence is given about the exact amount

misappropriated by the accused. It can be said that the

trial Court did not show sincerity and virtually did not

exert to see record of the case and decided the matter

only on the basis of arguments advanced for the defence

and with some presumption which was not available in

law.

9) In the cross examination of Joshi (PW 1) it is

brought on the record that receipt books are supplied by

the Accounts Officer to the Cash Counter clerk. There is

no record to show that Exhibit 8, receipt book No.552 was

supplied to the accused and this circumstance is brought

on the record in the cross-examination of Joshi and also in

evidence of other clerk. It was responsibility of the

accused to show that Exhibit 8 was authorised receipt

book and it was supplied to him when specific evidence is

of the Department that Exhibit 8 is not authorized receipt

12 Cr Appeal 278 of 2002

book and it was not supplied through proper channel for

its use. The subsequent evidence which is being discussed

shows that there was some carelessness on the part of

the concerned staff who was in charge of maintenance of

the record of receipt books and it was virtually kept in

open condition. This circumstance is misused by the

accused. There are other circumstances like not showing

the amount collected by him in daily list and not

producing the receipt book bearing No.552 before the

concerned and they show the modus operandi of the

accused and his dishonest intention. Joshi is cross

examined with regard to the work of making entries in

cash book. His evidence shows that the receipt book and

the list prepared by Cash Counter Clerk like accused are

required to be checked by Accounts Officer daily and on

that basis the entries are taken in cash book. This

procedure does not help the accused in any way to create

probability that he had deposited entire amount with the

Government daily or that he had handed over the amount

collected by him from customers after 1.00 p.m. to the

Main Cashier. When the accused had not given proper

account of the money collected daily, there was no

13 Cr Appeal 278 of 2002

question of making entries of that amount which was kept

by accused with him in daily register. Due to this

circumstance not much can be made out from the

circumstance that these daily registers were not produced

on record. The accused could have produced copies of

that record if he was sure that he had credited that

amount with the Government or he had handed over the

amount to the Main Cashier. In the evidence of Joshi it is

brought on record that he did not find any entry which

was missing in daily list if it was compared with the

receipt book. This circumstance also is not in favour of the

accused. This is because the accused had prepared the

daily list only in respect of the receipts issued by him from

the authorised book and then the book with the daily list

were handed over to the superior officer by him.

10) During cross examination of Joshi it was

suggested to him that Padalkar, Clerk who has issued

notices to the defaulting customers had not made inquiry

with accused prior to issuing the notice. This suggestion is

admitted. This admission also cannot make any difference

as the evidence of Joshi shows that the entries in

14 Cr Appeal 278 of 2002

Customer Card were to be made on the basis of daily list

and the receipt book handed over by the accused. If the

accused had not mentioned the names of the customers

like Adwant in daily list on the day when he had collected

the amount and he had not supplied duplicate receipt,

carbon coy to the superior officer, the staff like Padalkar

was not expected to make entry on the card of the

customer and he was expected to issue notice of show

cause to such customer. It appears that those cards of the

customers were not produced before the Chief Judicial

Magistrate and this circumstance is also considered

against the prosecution.

11) Much was argued in the present proceeding by

the learned counsel for the accused that as per the

procedure the office was first preparing rough account of

daily transactions and on that basis the registers were

filled subsequently. Joshi (PW 1) did not admit that such

procedure was used by the office. Even if the office was

using that procedure that circumstance cannot help the

accused in any way due to the circumstance already

discussed.

                                         15         Cr Appeal 278 of 2002

     12)              In the cross-examination of Joshi it is brought

on the record that against the customers to whom show

cause notices were issued, further action was not taken by

the office and the amounts mentioned in the notices were

not recovered. Surprisingly this circumstance is

considered in favour of the accused by the learned Judge

of the trial Court. The evidence of Joshi and other

evidence shows that when office realised the fraud, the

office started inquiry against the accused and there was

no question of asking the customers again to deposit that

amount. Thus nothing could have been made by the trial

Court out of this circumstance.

13) Witness Ramkrishna Kshirsagar (PW 2) was

also working in the Telephone Department in the office of

the accused. He has given evidence on the duty which was

assigned to the accused. He has given evidence that on

30-9-1993 the customer Mr. Adwant came to the office as

notice was sent to him and he was asked to deposit the

arrears of telephone bill. He has deposed that Adwant had

brought the receipt issued to him and so the receipt was

shown to Clerk who had issued the notice viz Padalkar and

16 Cr Appeal 278 of 2002

also Joshi (PW 1). He has deposed that on the receipt

brought by Adwant date 25-8-1993 was mentioned but on

inquiry it revealed that entry on the subscriber record

card of this amount was made on 21-9-1993 showing that

payment was made on 25-8-1993. Kshirsagar (PW 2) was

the supervising officer and Joshi was working under him.

He has given evidence that he had instructed Joshi to

check daily list of receipts and the amount accordingly

shown to be deposited with the Government. He has given

evidence that on the basis receipt dated 25-8-1993 shown

by Adwant he checked the daily list dated 25-8-1993 and

he found that the amount paid by Adwant was not shown

in the daily list by the accused. The daily list is produced

in the Court as Exhibit 15 and in that document there is

no entry of the amount shown to be deposited by Adwant.

His evidence shows that by using the daily list, daily list

books were prepared by the office and he has given

evidence on that also. Unfortunately these books are

marked as Articles A to C by trial Court and they are not

considered in evidence.

                                          17          Cr Appeal 278 of 2002

     14)              Kshirsagar (PW 2) has given evidence that

receipt book No.552 and also receipt book No.4804 were

not issued to the accused as per the office record. He has

identified signatures appearing on the receipts from Book

No.552 (Exhibit 8) by saying that he knows and identities

signatures and handwriting of the accused. Similarly he

has identified the handwriting and signatures of the

accused appearing on Receipt Nos.6 to 17 from receipt

book No.4804. Receipt No.4804 is given Exhibit 16 and it

is consistent with the oral evidence given by this witness.

The amount mentioned above was in respect of receipt

book No.552 and the evidence of Kshirsagar shows that by

using receipts from Book No.4804 more amount was

actually misappropriated by the accused and the total

amount which comes out from the receipts used

unauthorisedly was Rs.9,63,000/-.

15) In the cross-examination of this witness (PW 2)

the procedure of the office is brought on the record.

Kshirsagar (PW 2) is cross-examined in respect of the

amount due from Dr. Dode by showing a bill issued to

Dode and the payment made by him on 8-2-1999.

18 Cr Appeal 278 of 2002

Surprisingly the witness was cross-examined on the basis

of this document when the amount was actually deposited

by Dode on 8-2-1999 when the Court was expected to

consider the period from 1-7-1993 to 9-10-1993. In the

case of Dr. Dode the bill period was from 16-12-1997 to 1-

4-1998 and 16-10-1998 to 1-2-1999. This evidence need

not be discussed and it is not at all relevant. Kshirsagar is

cross-examined on the audit which is routinely done by

Post and Telegraph Department Nagpur. That part of the

evidence also need not be considered as the case of the

office is very specific and the things which are noted

already will definitely come on the record if the audit is

done subsequently. To this witness also defence has

suggested that some rough record was created before

making entries in the cash book of daily transactions but

he has also denied that suggestion. Further suggestion is

given to him that adjustments of the entries were made

and the amount which was credited by the customers was

used for other purpose. These suggestions are also

denied.

                                       19         Cr Appeal 278 of 2002

     16)              Bharat Kawade (PW3), a Clerk of the Telephone

Department is examined to give evidence on the duties of

the accused. He has given evidence that as per the

procedure the receipt books were issued by the Accounts

Officer (Kshirsagar) and the accused was getting the

receipt books through Junior Accounts Officer (Joshi). In

his cross-examination it is brought on the record that,

entries in respect of transactions were initially taken in

rough cash book and thereafter the Accounts Officer used

to make entries in the main cash book. He has admitted

that he also used to make rough record of the transactions

and then he used to take entry in the main cash book and

that included the transactions shown in the daily list

prepared by the accused. It is brought on record in his

evidence that during his period he did not find any

mistake committed by the accused in respect of the

account. Such evidence is bound to be there as the

accused had mentioned only those amounts in the daily

list for which he had issued receipts from authorised

receipt books. It was argued by the learned counsel for

the respondent - accused that rough cash book ought to

have been produced by the prosecution due to nature of

20 Cr Appeal 278 of 2002

admissions given by Kawade (PW 3) who was working as

cashier. This submission is not acceptable as it is up to the

accused to show that the amount shown in the aforesaid

two receipt books were shown in the daily list by him. The

record of daily list is produced by prosecution.

17) The prosecution examined Lata Kolhe (PW 5)

who was working as Junior Accounts Officer prior to Joshi

(PW 1). She has also given evidence on the nature of

duties which were to be discharged by the accused. She

was in charge of the post of Junior Accounts Officer from

2-2-1993 to 29-7-1993. She has given evidence on the

procedure which is followed for issuing receipt book to

persons like accused. Her evidence shows that during her

tenure fraud was not detected and it was detected

subsequently.

18) Kolhe (PW 5) has given evidence that receipt

book at Exhibit 8 bears No.552 and receipt book bearing

No.4804 (Exhibit 16) contains some some blank receipts

but she has avoided to give specific evidence to say as to

whether she had either issued or she had not issued

21 Cr Appeal 278 of 2002

receipt books to the accused in the examination in chief.

However, in her cross-examination it is brought on record

that Accounts Officer issues only one receipt book at a

time to the Cash Counter Clerk. Her evidence shows that

as the fraud was detected during the tenure of Joshi she

avoided to say few things by saying that she did not find

any disputed document against the accused. It can be said

that she was not taking proper care. She has tried to hide

the aspect that at the relevant time accused was using

more than three receipt books out of which only one

receipt book was authorised and other receipts books

were unauthorised.

19) Baban Wani (PW 10) is another employee of the

Telephone Department and he was working as supervisor.

Under him so many clerks were working and one of the

clerks was assigned the duty of stationery and furniture.

His evidence shows that they were collected receipt books

from Bombay and Nagpur and some receipt books were

kept in veranda near the stationery. He has tried to say

that those receipt books which were kept in verandah

were not requisitioned by his section and even the receipt

22 Cr Appeal 278 of 2002

books which were kept in his own cupboard were not

requisitioned by him. The nature of evidence given by this

employee of the Telephone Department shows that due to

fear of action against him for negligence he has tried to

avoid to admit many things. In the evidence Baban Wani

(PW 10) has deposed that he issued 10 receipt books and

they were handed over to the accused in two installment

of 5 each. He had obtained receipt in respect of issuing of

the receipt books but that receipt surprisingly is not

exhibited by the trial Court and that receipt is marked as

article. The point of giving exhibit to the receipt was to be

decided in the judgment but this point is not touched by

the trial Court. The trial Court had not even perused the

entire evidence given by the witnesses. This Court holds

that the said receipt needs to be read in evidence and

from that receipt it can be said that the aforesaid receipt

books were not issued to the accused. His evidence shows

that only after registration of the crime the entries were

made in the register of receipt books of all the receipt

books available.

                                               23          Cr Appeal 278 of 2002

     20)               In the cross-examination of Baban (PW 10) it is

brought on the record that the receipt books need to be

issued in chronological order and at the time of verifying

the receipt books also they should be verified

chronologically. This evidence is not certainly in favour of

the accused as the receipts books used by him do not

show that they were in chronological order.

21) The prosecution has examined Parshuram

Dhotre (PW 11), handwriting expert to whom some

receipts from the residential place of the accused like

receipt Nos.001 to 005 from receipt book No.4809 which

were recovered along other documents like receipt

No.001 to 005 from receipt book No.4804 and the

specimen handwriting were sent. He has given evidence

that he had compared the disputed handwriting

appearing on receipt of Book No.552 with the other

handwriting supplied to him for examination and after

comparing them he prepared the opinion which is at

Exhibit 79. His opinion Exhibit 79 shows that he did not

find significant differences in the disputed documents and

admitted documents. The witness is cross-examined on his

24 Cr Appeal 278 of 2002

knowledge and expertise. He has given evidence that

when he joined the Government Department training was

given to him on this subject and he had examined more

than three lakh documents for giving opinion. He has

given evidence in more than 200 cases in the Courts and

he had given more than 2000 opinions in the past. The

trial court has committed grave error to hold that this

evidence cannot be considered and believed as he had

not joined and completed the course of university in

respect of the work as handwriting expert. Some other

circumstances like want of independent witness on the

recovery of some of the documents from the residential

place of the accused is also considered as a circumstance

by the trial Court. Though the evidence of the handwriting

expert is not conclusive evidence it can certainly be

considered as opinion of expert. It is up to the Court to

decide as to whether opinion can be used as corroborative

piece of evidence. In the present matter there is not only

evidence of the handwriting expert but there is evidence

of the colleagues of the accused who know the

handwriting and signature of the accused and in their

evidence it is duly proved that the disputed receipts are

25 Cr Appeal 278 of 2002

prepared by the accused they are in his handwriting and

they bear his signatures.

22) The prosecution has examined some customers

like Pradhan (PW 8) and Goyal (PW 9). Pradhan has

turned hostile. During cross-examination of this witness

learned APP had only put it to him that he had given

statement before police that he had received notice even

when he had paid the telephone bill. Unfortunately the

record in that regard was not confronted to this witness.

23) Goyal (PW 9) has admitted that one STD Booth

was standing in the name of wife of his brother. Inquiry

was made with him by police in which he had given

information that he had already paid amount of Rs.15552/-

on 19-7-1993. He has tried to say that he did not receive

notice for committing default. Evidence of this witness

cannot be ignored that way and the record in that regard

can be considered if it is exhibited.

24) The prosecution has examined three police

officers who made investigation of the present matter.

26 Cr Appeal 278 of 2002

Gore (PW 12) who was working as Police Inspector in

Kranti Chowk Police Station had arrested the accused on

11-10-1993. He has deposed that during investigation he

took search of the residential place of the accused and

various documents like receipt book, duplicate copies of

telephone bills and other documents are seized by him

under seizure panchanama Exhibit 87. The panchanama

is duly proved in his evidence. Panch witness examined on

this panchanama has turned hostile. The learned Chief

Judicial Magistrate has ignored this evidence by holding

that the panch witness has turned hostile. There was no

reason at all to Gore (PW 12) to give false evidence.

Under panchanama (Exhibit 86), five blank receipt Nos.1

to 5 from receipt book No.552, one Receipt Book bearing

No.4804 having receipts but not having receipt Nos.1 to

17 showing that they were used, receipt No.245 from

Receipt Book No.557, receipt No.247 from Receipt Book

557 separately, receipt No.248 from Receipt Book No,

557, receipt No.299 from Receipt Book 558, receipt No.6

from Receipt Book No.560, receipt No.7 from Receipt

Book 560, receipt No.8 from receipt book No.560, receipt

Nos.80, 81, 148, 169 from receipt book 561, around 47

27 Cr Appeal 278 of 2002

receipts from receipt book 562 separately, 5 receipts from

receipt book 4803, two receipts from receipt book No.

No.4815, one cheque in favour of State Bank of India

dated 21-7-1993 of Rs.6335, 9 receipts from receipt book

No.563, letter issued to the accused by Accounts Officer

on 9-9-1993, duplicate copy of bill of telephone No.

No.5169 of Waluj Exchange of Rs.200/-, the receipt of

payment of bill of telephone no.26683 of Rs.3876, receipt

of payment of bill of Telephone No.82141 dated 8-8-1992,

receipt dated 27-9-1993 of Rs.10747 of Rajesh K. Surana,

receipt No. 232 dated 27-9-1993 issued from receipt book

No.564 for amount paid by cheque in respect of

telephone No.21973, receipt No.221 from receipt book

No.558 of telephone No.24474. Some other receipts and

bills of the month of July 1993 which were dated 21-7-

1993, 27-7-1993 etc. are recovered. Similarly the bills of

August 1993, one list having 47 telephone numbers and

mentioning specific amounts against those numbers are

recovered.

25) It is already observed that there was no reason

for Gore to create false record against the accused. The

28 Cr Appeal 278 of 2002

evidence of Gore and the panchanama of seizure prepared

by him show that all the record mentioned in the

panchanama was of the office of the accused and the

accused had no authority to take such record to his

residential place. He had taken bills of the relevant period

as the payment was made of those customers but that

amount was not accounted for by him. Similarly many

receipt books were found in his residential place. This is

certainly an incriminating circumstance and it was

necessary for the accused to explain this circumstance.

The accused has not at all explained this circumstance.

The trial Court has committed serious error in holding

that due to absence of the signature of the accused on the

panchanama showing that copy of it was supplied to him

this evidence cannot be used against him. That

requirement is not mandatory in nature and if there is

convincing evidence, the investigation officer can be

believed on such circumstance.

26) Digambar Gadekar (PW 13) who was also Police

Inspector in Kranti Chowk Police Station and who made

investigation after 9-12-1993 is examined by the

29 Cr Appeal 278 of 2002

prosecution. His evidence shows that he obtained

specimen handwriting and signature of the accused in the

presence of panch witness for sending the same to

handwriting expert along with the disputed handwriting.

Panchanama in that regard is duly proved at Exhibit 91.

There is no reason to disbelieve this witness also only

because there is no independent evidence of panch

witness on this incident. It is already observed that even if

the evidence of the handwriting is ignored, there is

evidence of the colleagues of the accused who identified

the handwriting and signatures of the accused appearing

on the disputed documents.

27) The aforesaid evidence if considered together

shows that the receipt book No.552 was not supplied to

the accused by his office, counters of the receipt Nos.001

to 005 were not filled and the receipts shown to be issued

to the customers were recovered from the residential

place of the accused by police. Receipts from receipt book

No.4804 were also found at his residential place. Evidence

given by the handwriting expert on these documents is

already discussed. This evidence can certainly be

30 Cr Appeal 278 of 2002

considered against the accused. The trial court has not

given due weight to the opinion of the handwriting expert

Exhibit 77 showing that these documents are in the

handwriting of the same person, the accused. The reasons

given by the handwriting expert are there and the

evidence of the handwriting expert remained unshattered

during his cross-examination. When the witness was given

training by the Department and he has so much

experience as mentioned already, there was no reason

for not accepting opinion given by the handwriting expert.

It is true that the customers who were examined by the

prosecution to prove that notices were issued to them on

the basis of their card by presuming that they have

committed default have not supported the case of the

prosecution, but that circumstance can go to the root of

the matter. Cases of misappropriation of Government

money need to be decided mainly on the basis of

documentary evidence. If the documents can be read in

evidence, the trial Court can base conviction on the basis

of the documents. It cannot be said that the colleagues of

the accused are interested witnesses. It is true that

departmental inquiry was started against some colleagues

31 Cr Appeal 278 of 2002

of the accused but for that this Court has already made

some observations that there was carelessness on the

part of those employees. That circumstance cannot help

the accused in any way. The record shows that daily lists

prepared by the accused were produced before Court and

they are referred in evidence by the prosecution

witnesses. When the prosecution witnesses know the

handwriting and signature of the accused, in ordinary

course the trial Court ought to have used that record as

evidence. That is not done by the trial Court.

28) The Telephone Office has given information in

account statement about temporary and permanent

misappropriation and it is proved. It appears that the

learned APP who conducted the matter for the State did

not take care to see that some record already mentioned

is exhibited in the evidence of the employees of the

Telephone Department. Benefit of this circumstance

cannot be given to the accused. Similarly, the trial Court

ought to have given exhibit to that record and the daily

lists prepared by the accused and the trial Court ought to

have read all those papers in the evidence. By not reading

32 Cr Appeal 278 of 2002

that record the trial Court has committed serious error.

Thus everything was on record but the trial Court has

virtually overlooked that record. Entire daily list came to

be marked as Article "C". The rest of the papers prepared

by the accused was also marked as Article "B". Due to this

approach of the trial Court, the trial Court has committed

mistake. It can be said that the trial Court has

concentrated only on the oral evidence when the trial

Court ought to have read the documents in evidence. The

documents were duly proved in the substantive evidence.

29) The aforesaid evidence shows that both the

temporary misappropriation (of Rs.3.88 lakh) and

misappropriation of more than Rs.4.75 lakh is duly proved

by the prosecution.

30) Learned counsel for the accused placed

reliance on some rules framed with regard to the

maintenance of accounts. He produced copy of one such

rule with regard to remittance to treasury. He submitted

that whenever the amounts collected from customers are

not deposited in the treasury and they are utilized by the

33 Cr Appeal 278 of 2002

Department, the officer must at the end of the month send

to the treasury office the cheque for the amount utilized

with certificate that the amount was received by transfer

credit to Telegraph Department. It is already observed

that some suggestions in that regard were given to the

Junior Accounts Officer and Accounts Officer but they

have denied that they have used the amounts which were

collected by the accused. For using this rule there needs

to be the basic record of collection and utilization. The

accused did not prepare collection record for office use in

respect of amount misappropriated and the record in

respect of temporary misappropriation of collection was

prepared subsequently by the accused. Thus, this rule can

be of no help to the accused.

31) Learned counsel for the accused placed

reliance on some reported cases.

(1) 2016(5) Mh.L.J. (Cri.) 300 (State of Maharashtra vs. Mandabai).

(2) 2003(3) Mh.L.J. 127 (Moreshwar vs. State of Maharashtra).

     (3)     (2003)(5) Mh.L.J. 243 (Bismillakha v. State of
             Maharashtra)





                                        34         Cr Appeal 278 of 2002

     (4)     2015 AIR SCW 1180 (Sudershan Kumar v. state of
             Himachal Pradesh).

Facts and circumstances of each and every case are

always different.

32) In the present matter this Court has considered

all the relevant facts. There is also correspondence

(Exhibit 11) of the accused which can be used as

confession showing that he had misappropriated the

amount and he was trying to collect the amount to deposit

it with the Government. There was virtually no reason for

the prosecution to falsely implicate the accused in such a

serious case. The accused did this with planning and that

can be inferred from the circumstances like he had taken

record of the office to his residential place. He used

peculiar modus operandi and that also indicates his

intention to misappropriate. This Court holds that the

offence is proved beyond reasonable doubt. He could have

also been convicted for creation of false record but the

charge was framed only for offence punishable under

section 409 IPC against him. This Court holds that he

needs to be convicted for offence punishable under

35 Cr Appeal 278 of 2002

section 409 of IPC and he needs to be sentenced

sufficiently so that other similar minded persons may

learn lesson from this case.

33) In the result, the appeal is allowed. The

judgment and order of the Chief Judicial Magistrate,

Aurangabad delivered in Regular Criminal Case No.80163

of 1996 is hereby set aside. The respondent-accused

stands convicted for the offence punishable under section

409 of the Indian Penal Code. He is sentenced to suffer

rigorous imprisonment for one year and to pay a fine of

Rs.5000/-. In default of payment of fine, he is to undergo

rigorous imprisonment for one more month. He is to

surrender to his bail bonds to undergo the sentence. He is

entitled to set off in respect of the period for which he

was behind the bars after his arrest in the case. Copy of

the judgment be given to the accused free of cost.

                   Sd/-                                   Sd/-
     (S.M. GAVHANE, J.)                     (T.V. NALAWADE, J.)



     rsl