State vs Pyare Lal Nehru
1989 Latest Caselaw 606 Del

JUDGMENT

M.K. Chawla, J.

(1) By this Judgment, we purpose to dispose of four connected appeals of the appellant as the evidence in all the four is common and the same questions of law and fact arise.

(2) Shri P.L. Nehru, appellant herein, was working as Collective Cashier in M/s New India Assurance Company Ltd., New Delhi, during the period 1961 to 1963. Shri S.N. Gupta was one, amongst many other Inspectors, entrusted with the job of collecting premium from the insured persons either in cash or by cheque, and issue receipts for the same. The Inspectors thereafter deposited such collections with the Collective Cashier. In acknowledgement of the premium so received, the Collective Cashier was required to sign four copies of the receipts in the custody of the Inspector and retain one copy with him for record. This receipt is known as7-A. It was the duty of the Collective Cashier to send daily collections to the Central Bank of India, Janpath, New Delhi through separate pay-in slips and in return, obtain bank counterfoils, duty stamped and initialled by the bank in respect of all such deposits made into the bank. It was also the duty of the Collective Cashier to record such daily collections in a book known as "cash income book". The record of such daily collections used to be sent to the Head Office together with relevant copies of the receipts tendered by the Inspectors. The Central Bank of India, Janpath, on their side, were required to prepare and send monthly statements, generally known as "bank passbook" to the Head Office of the company at Bombay apart from a copy of the same to the New Delhi Branch. Since the originals of the counterfoils were sent to the Head Office at Bombay, the reconciliation was also done there.

(3) While checking and reconciling the bank account, the Head Office at Bombay discovered that the bank had not given credit for some deposits made by the Collective Cashier. The matter was got checked up from the internal auditor of the company who found that some of the amounts which were shown to have been deposited by Shri P.L. Nehru in the bank were not actually deposited and in order to avoid detection, various documents were forged. The internal auditor submitted a detailed report in this behalf to the Head Office indicating that the Collective Cashier has misappropriated a total sum of Rs. 42,026.36 and to achieve that end, various documents were forged from time to time.

(4) Immediately on receipt of this report, the Chief Regional Manager of the New India Assurance Co. Ltd., filed a report dated 4.6.63, with the Superintendent of Police, Crime Branch, Delhi for investigation. After thorough investigation, the Crime Branch filed four challans for four separate incidents of misappropriation of different amounts on different dates. In Criminal Appeal no. 25 of 1975, P.L. Nehru is alleged to have embezzled the amount of Rs. 1259.00 by committing forgery in passbook, cash income book of the company, whereas his co-accused S.N. Gupta has defalcated a sum of Rs. 6.00 only. In appeal no. 26/75, the amount involved in the case of the appellant is Rs. 1625.00 and in that of the co-accused is Rs. 1332.00 . Similarly, in appeal no. 51/75, the amounts involved are Rs.l370.00 and Rs.l776.00 respectively. One Sant Ram Gupta, Inspector is also alleged to have embezzled a sum of Rs. 1535.00 in connivance with the above said co-accused. In the last mentioned appeal, both the accused committed criminal breach of trust in respect of Rs. 1500.00 only. As the modus operandi of the accused was the same, they were charged to stand trial for the commission of an offence punishable u/s 408/34, 467/34, 477A-/44 and 471/34 Indian Penal Code .

(5) In support of their case, the prosecution in all, examined 30 witnesses while the accused produced only five.

(6) During the course of the trial, accused S.N. Gupta unfortunately met with a fatal accident and died on 28th October, 1973. Accused Sant Ram Gupta in Criminal Appeal no. 51/75 settled the matter with the company with the permission of the court and he was absolved of the charge. Thereafter, the case proceeded only against accused P.L. Nehru.

(7) There is no dispute about the procedure which was being followed in the collection of various amounts by the Inspectors and their ultimate deposit in the bank. The accused admitted that he was working as Collective Cashier in the complainant company during the period 1961 to 1963 and that the Inspectors of the Company after collecting the premium from the insured used to issue receipts to them. There receipts according to him used to be prepared in 5 copies by the Inspector and the remaining four copies numbered as 7-A to 7-D were to be utilised thereafter. According to him, the Inspector of the company used to recover the premium in cash or by way of cheques and thereafter used to be handed over to him Along with the four copies of the receipts. In the normal course, he used to sign 7-A receipt. The premium so received used to be entered into cash income book of the company meant to be deposited with the Central Bank of India, Janpath, New Delhi, in A/c Code No. 6507, on the same day or on the following day. He further admitted that-he used to prepare bank pay-in slip in two parts, namely, bank account part and its counterfoil to be retained at the office.

(8) The accused admitted that 7-A receipts subject-matter of the different charges bear his handwriting and initials in token of having received the amount mentioned therein from the concerned Inspectors. According to him, he had entered the amounts of these receipts in the cash collection register of the company. He, however, denied the prosecution allegations of having committed any forgery or embezzlement of any of these amounts. In fact, many of the cheques in due course of time were dishonoured for which nobody bothered to follow the same. He has been falsely implicated by showing that the amount of the dishonoured cheques has been embezzled by him.

(9) On 27th August, 1974, the learned Addl. Sessions Judge, after scrutinising the oral as well as documentary evidence consisting of hundreds of documents, concluded that the prosecution has not been able to establish beyond doubt that the accused had made false entries in the cash income book Ex. PW-16/68 with regard to any of the amounts subject-matter of the charges. He also absolved him of the offence u/s 477A/34 Indian Penal Code . The accused P.L. Nehru was accordingly acquitted.

(10) The State his preferred these appeals against the said order of acquittal.

(11) During the course of arguments, Shri K..K. Bakshi learned counsel for the State has not laid any emphasis on the evidence in respect of the amounts alleged to have been embezzled by the accused in respect of criminal appeals no. 25, 26 and 51 of 1975. He seems to be satisfied with the appreciation of evidence and finding of the court below acquitting the accused of the offence charged. He, however, is very emphatic and has argued with some vigour in respect of the commission of forgery and embezzlement of the amount of Rs.1500.00 by the accused in appeal no. 52/75. He mainly relies upon the evidence of PW-9 Inspector V.K. Nanda, who in fact has received this amount in cash from S. Nagina Singh as premium for the insurance of his truck and deposited the said amount with accused P.L. Nehru. Reliance is also placed on the receipts 7-A and 7-D coupled with the entries in the cash income book. According to the evidence of Inspector Nanda, receipt 7-A. Ex. PW-9/A and 7D, Ex. PW-9/B are in his hand and bear his signature. On 9.11.61, he collected the sum of Rs. 1500.00 in cash from S. Nagina Singh and paid the same to P.L. Nehru. Shri Nanda, identified the handwriting and signature of Shri Nehru on the receipt issued in token of having received the amount.

(12) The contention of the accused, on the other hand, is that this very amount of Rs. 1500.00 was collected by him through exchequer and not in cash as alleged. He then got it deposited in the bank through a regular pay-in slip. In support of his defense, reliance is placed on the cash income book of the company Ex. PW16/68, wherein this amount is shown to have been received by cheque and deposited in the bank. His further case is that in this cash income book, he used to mention against the amount, if it was in cash, letter 'C', and if it was received by cheque, then he did not mention any letter. He has denied to have misappropriated this amount of Rs. 1500.00 by himself or in connivance with accused Gupta.

(13) The main point for consideration in this charge is whether the amount of premium of Rs. 1500.00 was received in cash by the Collective Cashier from the Inspector as alleged by the prosecution or it was received by him by means of a cheque. In case it was received by means of a cheque, then. the question of defalcation of the amount does not arise as there was no alternative but to deposit the cheque in question to the account of the company. If the amount was received in cash, then, there was an opportunity for the accused to withhold this amount and not to deposit it to the account of the company.

(14) On the scrutiny of the evidence led by the prosecution, the following conclusions emerge :- (1)Shri J.N. Sharma, the internal auditor of the company who scrutinised the accounts and submitted his report admitted in his cross-examination that the amount of Rs. 1500.00 does not find mention in Ex. PW-17/E (list of embezzled amounts); (2) The entry relating to this amount as shown in Ex. PW-16/68 by the accused is as "cheque". There is no letter 'C' shown in front of this entry; (3) This very entry in the register was checked by Shri S.P. Gupta, the officer of the company and certified it as correct. This is evident from the seal and initial of Shri Gupta on it; (4) It has also come on record that 7-A receipt, bank pay-in slip, counterfoil and the cash income statement of the company used to be sent to the Head Office at Bombay on day-to-day basis, which means that none of the documents remained with the accused so as to give him an opportunity to make any additions and alterations in them; (5) Immediately on receipt of the premium, the accused was required to enter the collection in cash income book and allot collection no. on the bank pay-in slip while sending the amount for deposit. The collection nos. could not have been allotted to the amount unless an entry was made in the cash income statement. For this amount, regular entry Ex. PW-19/c was made, the genuineness of which cannot be questioned. The details of the entry Ex. PW19/c coupled with the Inspector code and the no. of the receipt do tally with 7-A receipt, alleged to have been proved by Inspector Nanda; (6) Shri Nagina Singh who made the payment of Rs. 1500.00 to Shri V.K. Nanda to insure his vehicle has not been produced for reasons best known to the prosecution. He was the best witness to depose that the payment was made in cash or by means of a cheque.

(15) As in the other connected case, the prosecution has withheld the material oral as well as documentary evidence, readily available to support their case.

(16) The above facts do indicate that in all probability the accused received this amount of Rs. 1500.00 by means of a cheque and was deposited in the bank. Even if it be assumed for the sake of arguments that this amount of Rs. 1500.00 was received in cash, then in view of the fact that it was deposited in the bank on 15.1.61 through Ex. P-4/1, the question of any embezzlement of this amount does not arise. The prosecution has failed to prove on record that the amount deposited through Ex, PW-4/A is different than the amount in question. Rather the evidence supports the defense version.

(17) Learned counsel for the State, contended that even though the learned Addl. Sessions Judge has considered and discussed in detail the evidence of Inspector Nanda and others Along with the relevant documentary evidence to arrive at the conclusion as to whether the amount of Rs.1500.00 was received by the accused in cash or through a cheque, but has failed to mention the evidence of PW-4 Om Prakash, who was working as Peon in the company and is responsible for the deposit of the amounts in bank. His submission is that this witness has identified the signature of the accused on the pay-in slips Ev. PW-4/1 to 11 (which include the pay-in slip through which the amount of Rs. 1500.00 was deposited in cash), thereby showing that the accused in fact received this amount in cash and not by cheque, as tried to be made out in his defense. In our opinion, even this witness has not fully supported the prosecution inasmuch as in his cross-examination, he admitted that one of the pay-in slips Ex. PW-4/4 is not in the handwriting of the accused. He further admitted that whatever amounts were given to him vide Ex. PW-4/1 to 11 were deposited by him in the bank. His is hardly an evidence which can demolish the defense of the accused proved to be correct on the oral as well as documentary evidence placed and proved on record.

(18) In this case, the prosecution has not cared to examine a handwriting expert to compare his signature and handwriting on the receipts 7A to 7D with those of his admitted signatures. The prosecution has also failed to examine the immediate supervisor of the accused, conversant with his signature. They have also failed to produce the person from whom Inspector Nanda is alleged to have received the premium in cash. Even otherwise, mere proof of a handwriting of a document would not tantamount to proof of all the contents or the facts stated therein. If the truth of the facts stated in the documents is in issue, as in the present case, mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise the facts or contents so stated would have to be proved by admissible evidence i.e. evidence of those persons who can vouchsafe for the true facts in issue.

(19) From the above discussion, we have no hesitation to conclude that the amount of Rs. 1500.00 which is alleged to have been embezzled by the accused falls within the category of cheques and not in cash.

(20) This conclusion applies to other (three) appeals.

(21) The appeals can be looked into from another angle. The incident of forgery and misappropriation of meagre amounts took place in the year 1961 to 1963. The charge against the accused was framed as far back as 23.2.66. After a prolonged trial, the accused was ultimately acquitted by a detailed Judgment of the Addl. Sessions Judge delivered on 27.8 74. At this late stage, while hearing the appeal against acquittal, this Court is alive to the proposition that in an appeal against an order of acquittal, the appellate court will be slow to disturb a finding of fact and normally would not interfere with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the lower court. It is now well settled by the long course of decisions that where the view taken by the trial court in acquitting the accused is reasonably possible, the High Court will not reverse the said order by taking a different view on the same evidence. In the case reported as Sonia Bahera v. State of Orissa, Air 1984 S.C. 491, the Court while dealing with this aspect held as under :- "This was not a case in which it could be said that the appreciation of evidence by the Sessions Judge was either perverse or that only one opinion, namely, that the appellant was guilty of an offence was possible. In these circumstances, the High Court was in error in reversing the Judgment of acquittal recorded by the trial court. We therefore, set aside the Judgment, conviction and sentence passed by the High Court and restore the Judgment of acquittal passed by the trial court."

(22) After carefully perusing oral as well as documentary evidence we are of the considered opinion that the Judgment in appeal is not unreasonably preverse, manifestly illegal or grossly unjust. The view taken by the trial court was also reasonably possible and once this is so, there can be no question of reversing the order of acquittal.

(23) In the result, we dismiss the appeals. The accused is on bail, his bail bonds are discharged.