Prahlad Kumar Shrivastava vs Central Bureau Of Investigation
2022 Latest Caselaw 13536 MP

                                          Cr.A. No.1150/1998
                                 1

    IN THE HIGH COURT OF MADHYA PRADESH AT
                   JABALPUR

  BEFORE HON'BLE SMT. JUSTICE NANDITA DUBEY

            CRIMINAL APPEAL No. 1150 of 1998

Between:-

     PRAHLAD KUMAR SHRIVASTAVA (NOW DECEASED)
     THORUGH LEGAL REPRESENTATIVE SMT. LAXMI
     SHRIVASTAVA W/O LATE PRAHLAD KUMAR
     SHRIVASTAVA, AGED ABOUT 62 YEARS, R/O
     SHASTRI WARD    NO. 2   KUTHLA   KATNI
     (MADHYA PRADESH)

                                            ....APPELLANT

     (By Shri Manish Datt, Senior Advocate with Shri Rohit
     Sharma, Advocate)


     AND

     UNION OF INDIA THROUGH CENTRAL BUREAU OF
     INVESTIGATION, JABALPUR (MADHYA PRADESH)



                                        .......RESPONDENT

     (By Shri Vikram Singh, Advocate)


     Arguments heard on    : 04.08.2022
     Order delivered on      14.10.2022
                                                       Cr.A. No.1150/1998
                                          2


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                            JUDGMENT

This criminal appeal has been filed by the appellant being aggrieved by the conviction and sentence dated 09.05.1998 passed by Special Judge (CBI), Jabalpur (M.P.) in Special Case No.30/1997, whereby the appellant has been found guilty for the offence punishable under Sections 409, 468/471 of I.P.C. and Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act, 1988 and sentenced to undergo Rigorous Imprisonment for 4 years with fine of Rs.10,000/-, Rigorous Imprisonment for 3 years with fine of Rs.5,000/- and Rigorous Imprisonment for three years with fine of Rs.5,000/- respectively with default stipulations. The appeal is prosecuted by the legal heir of the appellant, who expired on 19.06.2009, during the pendency of the appeal.

2. As per prosecution, the appellant when posted as Assistant Post Master (Mail), Katni Head Post Office, during the period 03.08.1990 to 26.10.1994 received an amount of Rs.62,000/- and Rs.20,000/- from Shri Jageshwar Prasad and Shri Ramprasad Kurmi, respectively for the purpose of issuing five year term deposit. It is alleged that the appellant thereafter fraudulently and unauthorizedly issued the pass books for the said Cr.A. No.1150/1998

amount in the name of Jageshwar Prasad and R.P. Kurmi bearing account No.1308099 and 349468 respectively, but the total amount of Rs.82,000/- was not credited to the postal account of concerned post office. In this manner, the appellant pocketed and misappropriated Rs.82,000/- thereby cheating the depositor and caused corresponding financial loss to that extent to the department.

3. On the basis of information received by the S.P. CBI, Jabalpur FIR dated 30.05.1996 (Ex. P-40) was registered at RC No.17-A/2016.

4. A charge sheet was filed against the appellant on completion of investigation. Upon grant of sanction vide Ex. P-6, cognizance was taken and charges framed under Section 409, 468, 471 of I.P.C. and Section 13(2) read with Section 13(1)(c) of Prevention of Corruption Act, 1988, to which the appellant pleaded non-guilty. The prosecution examined 10 witnesses and exhibited P-1 to P-99 as documents. The plea of appellant was that he has been falsely implicated, Kisan Vikas Patras were issued in the name of depositors for the said amount and on maturity the amount has been duly received by the depositors. He examined two defence witnesses in his support and exhibited document Ex. D-1.

Cr.A. No.1150/1998

5. The Special Judge held the appellant guilty of commission of the aforesaid offences and sentenced him as aforestated. Aggrieved and dissatisfied with the said judgment of conviction and sentence, the appellant is thus before this Court.

6. Shri Manish Datt, learned Senior Counsel appearing on behalf of the appellant contended that there is no entrustment of property after issuance of Kissan Vikas Patra, hence, the question of committing breach of trust does not arise. It was argued that the specimen hand writing of appellant was not taken in accordance with the provision of law and therefore, the report of the hand writing expert V.G.S. Bhatnagar (P.W.-8) relied upon by the prosecution could not come to its aid to connect appellant with the crime. Reference in this connection was made to the testimony of B.K. Singh, I.O. (P.W.-7) and V.G.S. Bhatnagar (P.W.-8).

7. Shri Vikram Singh, learned counsel appearing for the respondent/CBI has submitted that the testimony of prosecution witnesses taken together clearly established the guilt of the appellant and the Special Judge has therefore committed no mistake in recording the judgment of conviction.

8. Heard the learned counsel for the parties at length and perused the record.

Cr.A. No.1150/1998

8. In the present case, the charges framed against the appellant by the Special Court are as follows :-

izFke%& vkius fnukad 21-07-92 ls ysdj 28-02-96 dh vof/k esa vfl- iksLVekLVj esy ds in ij eq[; MkDVj dVuh esa inLFk Fks] vkSj mDr iksLVekLVj dks gSfl;r ls yksd lsod ds ukrs dk;Zjr jgrs gq;s jke izlkn iVsy ls 20][email protected]& :i;s ,ao tkxs'oj izlkn ls 62][email protected]& :i;s [kkrs es tek djus ds fy;s izkIr fd;k] vkSj bl izdkj mDr 82][email protected]& :i;s lacf/kr O;fDr;ks ds [kkrs es u tek dj csbZekuh iwoZd vius mi;ksx esa leifjofrZr dj fy;kA bl izdkj vkius /kkjk 409 Hkkjrh; n.M lfgrk ds varxZr naMuh; vijk/k fd;k gS ftlds laKku dh vf/kdkfjrk bl U;k;ky; dh gSA

f}rh;%& vkius 21-07-92 ls ysdj 28-02-96 dh vof/k esa gsM iksLV vkfQl dVuh esa iksLV ekLVj ds in ij inLFk jgrs gq;s] jke izlkn ls 20][email protected]& :i;s izkIr dj ,ao tkxs'oj izlkn ls 62][email protected]& :i;s izkIr dj jke izlkn ds uke ij dkYifud [kkrk dzaekd ,-lh- u- 349468 rFkk tkxs'oj izlkn dk 62][email protected]& :i;s dk dkYifud [kkrk dzekad 1308099 ikWp o"kZ ds fy, nf'kZr dj ikWp o"khZ; Mh-Mh- ikl cqd dh dwV jpuk fd;k rkfd mldk iz;ksx Ny dk iz;kstu ds fy;s fd;k tkos bl izdkj vkius /kkjk 468 Hkkjrh; n.M lafgrk ds varxZr naMuh; vijk/k fd;k gS ftldh laKkurk dk vf/kdkj bl U;k;ky; dks gSA

r`rh;%& vkius mDr fnukad le; ,ao Lfkku ij Mh-Mh- ikl cqd dks ;g tkurs gq;s fd og dwV jfpr gS rFkk dkYifud [kkrk izkajHk dh xbZ gS] diV iwoZd ,ao csbZekuh iwoZd ls mls v'yhy :i esa iz;ksx es yk;k tkosxk] [kkrsnkjksa dks fn;k FkkA tks dh /kkjk 471 Hkkjrh; n.M lafgrk ds varXkZr naMuh; vijk/k gS ftlds laKku dk vf/kdkfjrk bl U;k;ky; dks gSA

prqFkZ%& vkius 21-07-92 ls 28-02-196 dh vof/k esa eq[; Mkd?kj dVuh esa vflLVsaV iksLVekLVj esy esa yksd lsodh dh gSfl;r esa inLFk gksrs gq;s vkius Hk`"V ,ao voS/k lk/kuksa dk iz;ksx djrs gq;s Cr.A. No.1150/1998

vius in dk nqiZ;ksx fd;k vkSj mDr in dk nqiZ;ksx djrs gq;s [kkrsnkj jke izlkn iVsy ls 20][email protected]& :i;s ,ao tkxs'oj izlkn ls 62][email protected]& :i;s voS/k rjhds ls izkIr fd;k] tks dh /kkjk 13¼2½ lifBr /kkjk 13¼1½¼lh½ fizoslau vkWQ djsIlu ,DV 1988 ds vraxZr naMuh; vijk/k gS ftldh laKku dh vf/kdkfjrk bl U;k;ky; dks gSA

9. In the instant case, as per complainant Jageshwar Prasad (P.W.-1), he sold his land in the year 1990 for Rs.62,000/-. Out of this amount, he gave Rs.60,000/- to the appellant to deposit in the post office. He has admitted that the appellant purchased Kissan Vikas Patras from Sindhi Post Office, Katni in his presence. These Kissan Vikas Patras were in his own name (for Rs. 49,000/-), his father's name (for Rs.10,000/-) and his wife's name (for Rs.1,000/-). He was assured that his money will double in five years. According to this witness, he retained those Kissan Vikas Patras for three years, but as he needed money for his son's marriage, he gave the Kissan Vikas Patras to the appellant, who issued him a pass book (Ex.P-1) and informed him that money would be deposited in his account which he could withdraw on completion of five years. He has further stated that when he went to withdraw the amount, he was told that the pass book was forged. This witness has further admitted that after 1990, he has not given any amount for deposing in post office to appellant. The suggestion that the payment of Kissan Vikas Patras has already been made to him was denied by Jageshwar Prasasd Cr.A. No.1150/1998

(P.W.-1), however, he admitted that he made no complaint in this regard either to the post office or before any other authorities. His statement is corroborated by the Investigating Officer B.K. Singh (P.W.-7), who in para 15 of his cross-examination has admitted that Jageshwar Prasad (P.W.-1) and Ramprasad Kurmi (P.W.-10) never made any complaint regarding non-discharge of their Kissan Vikas Patras

10. As per Ramprasad Kurmi (P.W.-10), Rs.20,000/- was given to the appellant to deposit in post office and the appellant has purchased him 2 Kissan Vikas Patras. This witness has admitted that he received Rs.40,000/- from those 2 Kissan Vikas Patras after a period of five years and thereafter, he further deposited Rs.20,000/- in the Head Post Office, Katni through a Babu/Clerk whom he does not know. He was given a pass book, i.e., Ex. P-3. This witness is also admitted that after the initial amount of Rs.20,000/- he has not given any other amount to the appellant after 1990.

11. The Investigating Officer B.K. Singh (P.W.-7), has admitted that he did not investigate regarding the Kissan Vikas Patras purchased by the Jageshwar Prasad (P.W.-1), as there was no need. A suggestion was given to B.K. Singh (P.W.-7) that the payment of Kissan Vikas Patras purchased by Jageshwar Prasad (P.W.-1) had been made by the post office Katni, to which he Cr.A. No.1150/1998

showed ignorance. He has stated that he has no information if the payment of those Kissan Vikas Patras has already been made to Jageshwar Prasad (P.W.-1) by the Post office, because he did not investigate about the Kissan Vikas Patras purchased by Jageshwar Prasad (), as he did not think it necessary.

12. P.L.Choudhary (D.W.-2), posted as Sub-Post master, post office Katni has stated that Kissan Vikas Patra was seized from him on 11.10.1996 by the Investigating Officer B.K. Singh (P.W.-7). These documents were the original Kissan Vikas Patras of Rs.49,000/-, Rs.10,000/- and Rs.1,000/- and duly signed and stamped.

13. The following aspects are absolutely clear from the evidence discussed above;

(i) both these witnesses Ramprasad Kurmi (P.W.-10) and Jageshwar Prasad (P.W.-1) gave the money, Rs.20,000/- and Rs.60,000/-respectively to the appellant to deposit in the post office only once;

(ii) it is established that on deposit of Rs.20,000/- two Kissan Vikas Patras were issued to Ramprasad Kurmi (P.W.-10) and he admitted receiving Rs.40,000/- on its maturity. Similarly on deposit of Rs.60,000/- by Jageshwar Prasad (P.W.-1), he Cr.A. No.1150/1998

received Kissan Vikas Patras in his, his father's and his wife's name for Rs.49,000/-, 10,000/- and 1,000/- respectively;

(iii) After receiving the Kissan Vikas Patra, Jageshwar Prasad (PW.-1) and Ramprasad Kurmi (P.W.-10) never again gave any amount to appellant for depositing in the post office;

(iv) Ramprasad Kurmi (P.W.10) received the amount after maturity of the Kissan Vikas Patra.

(v) No complaint regarding non-discharge of Kissan Vikas Patras or non-payment on its maturity was ever made either by Jageshwar Prasad (P.W.-1) or by Ramprasad Kurmi (P.W.-10).

14. It is pertinent to note here that it is nobody's case that these Kissan Vikas Patras are forged or fabricated documents. Though, these Kissan Vikas Patras in original (duly signed and stamped) were seized from R.K. Shrivastava (D.W.-1) by the Investigating Officer B.K. Singh (P.W.-7) and available with the trial Court record were not marked or exhibited. As admitted by the Investigating Officer B.K. Singh (P.W.-7), he did not investigate about the Kissan Vikas Patra of Jageshwar Prasad (P.W.-1), probably because there was no complaint in this regard.

15. In the present case, large number of documents alongwith Kissan Vikas Patras were seized by the CBI and forwarded to the Court after completion of investigation, out of Cr.A. No.1150/1998

which the prosecution/CBI has relied only a part thereof, leaving the remainer unmarked and unexhibited.

16. In the present case, though there was evidence regarding discharge of Kissan Vikas Patras of Jageshwar Prasad (P.W.-1), as these were seized from the possession of R.K. Shrivastava (D.W.-1) and though available in the record of the trial Court were not individually exhibited or marked by the prosecution. Despite the fact that defence of appellant right from the beginning was that these Kissan Vikas Patras issued to Jageshwar Prasad (P.W.-1) and Ramprasad Kurmi (P.W.-10) were discharged and payment received by them. Investigating Officer, B.K. Singh (P.W.-7), who seized these original, duly singed Kissan Vikas Patras from R.K. Shrivastava (D.W.-1), admittedly, he did not investigate in respect of these Kissan Vikas Patras, not tried to find out as to whether these Kissan Vikas Patras were discharged and payment received by Jageshwar Prasad (P.W.-1) and Ramprasad Kurmi (P.W.-10). The Kissan Vikas Patras ought to have been disclosed to the appellant to give him a change and fair defence, particularly when non-production or non-disclosure of such documents had affected the defence of accused prejudicialy.

Cr.A. No.1150/1998

17. In the case of V.K. Sasikala Vs, State represented by Superintendent of Police (2012) 9 SCC 771, the Supreme Court held thus :-

17. Seizure of a large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the Court under Section 173 Cr.P.C., a fair amount of application of mind on the part of the investigating agency is inbuilt in the Code. Such application of mind is both with regard to the specific offence(s) that the Investigating Officer may consider to have been committed by the accused and also the identity and particulars of the specific documents and records, seized in the course of investigation, which supports the conclusion of the Investigating Officer with regard to the offence(s) allegedly committed. Though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173 (5) in every situation where some of the seized papers and documents do not support the prosecution case and, on the contrary, supports the accused, a duty is cast on the Investigating Officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, it is not impossible to visualize a situation whether the Investigating Officer ignores the part of the seized documents which favour the accused and forwards to the Court only those documents which support the prosecution. If such a situation is pointed by the accused and such documents have, in fact, been forwarded to the Court would it not be the duty of the Court to make available such documents to the accused regardless of the fact whether the same may not have been marked and exhibited by the prosecution?.........

Cr.A. No.1150/1998

18. The Special Judge only on the presumption that the appellant has deposited Rs.91,745/- later on reached to the conclusion regarding the guilt of the appellant. The learned Court failed to consider the explanation given by the appellant that the same was deposited under protest.

19. Further, to bring home the accusation of criminal breach of trust, the basic requirement to prove conjointly are (i) entrustment and (ii) whether the accused has accentuated by dishonest intention or not and misappropriated the amount for its own use.

20. Once the amount entrusted to appellant has been invested in the Kissan Vikas Patra and the same were handed over to Jageshwar Prasad (P.W.-1) and Ramprasad Kurmi (P.W.-10), it is safe to infer that no breach of trust was committed by the appellant by using his official position.

21. What is punishable under Sections 467 and 468 of IPC is forgery of a document or a valuable security with intent to cheat. In order to constitute forgery, the first essential is that the appellant should have made a false/forged document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any community. If all Cr.A. No.1150/1998

the questions are answered in the affirmative, only then the appellant can be held guilty.

22. In the case of Ram Narayan Popli Vs. CBI (2003) 3 SCC 641, the Supreme Court held thus :-

371. In order to constitute forgery, the first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any community.

372. The expression 'intent to defraud' implies conduct coupled with intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term 'forgery' as used in the statute is used in its ordinary and popular acceptation.

373. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are (i) is the document false (ii) is it made by the accused and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty.

23. In order to prove, that the appellant has prepared the forged pass books Ex.P.1 and Ex. P-3, the prosecution has Cr.A. No.1150/1998

principally relied upon the evidence of Azim Khan (P.W.-9), R.P. Kori (P.W.-6), Kamta Prasad Dubey (P.W.-2), Mata Prasad Tiwari (P.W.-4) and the report of Handwriting expert V.G.S. Bhatnagar (P.W.-8). However, the trial Court relied upon the evidence of V.G.S. Bhatnagar (P.W.-8), Jageshwar Prasad (P.W.-1) and Ramprasad Kurmi (P.W.-10) to reach to the conclusion that the forged pass books were prepared by the appellant.

24. It is well settled that the Court must be cautious while evaluating expert's evidence, which is a weak type of evidence and not substantive in nature and it is not safe to rely upon such evidence and the court must approach such evidence with caution and determine its creditworthiness after considering all the relevant evidence.

25. In the case of Chennadi Jalapathi Reddy Vs. Baddam Pratapa Reddy (dead) through legal representatives and another (2019) 14 SCC 220 the Supreme Court held thus :-

18. Undoubtedly, the opinion of a handwriting expert is a relevant fact under Section 45 of the Evidence Act. Under Section 47 of the Evidence Act, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is also a relevant fact. Per the explanation to Section 47 of the Evidence Act, a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received Cr.A. No.1150/1998

documents purported to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

26. V.G.S Bhatnagar (P.W.-8), the handwriting expert has not given any opinion regarding Ex. P-1, i.e., pass book in the name of Jageshwar Prasad (P.W.-1). He, however has stated that the admitted and specimen handwriting matches with that on Ex.P- 3, i.e., pass book issued to Ramprasad Kurmi (P.W.-10).

27. However, as discussed hereinabove, Ramprasad Kurmi (P.W.-10) has already admitted that he received the maturity amount and the further amount of Rs.20,000/- that he deposited in the post office later on was not given to the appellant but to some other Babu/Clerk. V.G.S. Bhatnagar (P.W.-8) further admitted in para 11 that the specimen signature/handwriting and admitted signature/handwriting were not taken in his presence. He was informed through forwarding letter of CBI that these were the specimen and admitted handwriting of the accused. He further admitted that he has not give any reasoning in his report as to how he reached the conclusion that the handwriting tallies with that of Ex. P-3.

Cr.A. No.1150/1998

28 Azim Khan (P.W.-9) and R.P. Kori (P.W.-6) have only stated that the pass book was not issued from their office and the same was not prepared by them. Though R.P. Kori (P.W.-6) has stated that he worked with the appellant and knows and can recognize his hand writing and signatures but he did not say that pass book (Ex.P-1) was written or signed by the appellant. Rather he admitted that appellant has no role or relation in preparing the pass book or opening the TDS account. This witness has further clarified that the pass book bears the signature of both the ledger clerk and the supervisor.

29. The other two witnesses Kanta Prasad Dubey (P.W.-2) and Mata Prasad Tiwari (P.W.-4) have both stated the pass book Ex.P-1 was issued from Katni post office as per the rules and procedure prescribed in this regard. Mata Prasad Tiwari (P.W.-4) has further stated that the corresponding entries are not available in the article A, B, C or D. It is pertinent to note that none of these witnesses have stated that the handwriting and signatures on the pass book Ex. P-1 or P-3 is that of the accused.

30. Ex. P-1, the pass book of account No.1308099 in the name of Jageshwar Prasad (P.W.-1) was issued on 30.09.1992 and showed a deposit of Rs.62,000/-. However, as per Jageshwar Prasad (P.W.-1) himself he only gave Rs.60,000/- that too only Cr.A. No.1150/1998

once, to the appellant in 1990 and received the Kissan Vikas Patras of the same amount, which were later seized on 11.10.1996 from R.K. Shrivastava (D.W.-1). Similarly Ex. P-3 TDS pass book dated 26.10.1994 in the name of Ramprasad Kurmi (P.W.-10) showed the deposit of Rs.20,000/-. As per this witness also, he gave Rs.20,000/- to appellant only once and received to Kissan Vikas Patras and after its maturity has received the amount of Rs.40,000/-. As discussed in preceding paragraphss, both these witnesses Jageshwar Prasad (P.W.1) and Ramprasad Kurmi (P.W.-

10) have admitted that apart from the initial amount they did not pay any other amount to the appellant to deposit.

31. Under the circumstances and in view of aforediscussed, the trial Court has committed a mistake in relying only on the report of the hand writing expert. The law is well settled that the defence is found probable, due weightage should be given to it and the standard of proof should not be compared with that of prosecution, where it is obliged to prove its case beyond all reasonable doubts.

32. For the reasons stated hereinabove, I am unable to uphold the conviction and sentence awarded to the appellant by the learned trial Court. Resultantly, this appeal succeeds and is hereby allowed. The conviction of the appellant under Sections Cr.A. No.1150/1998

409, 468/471 of I.P.C. and Sections 7, 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 is hereby set aside and he is acquitted from all the charges. The amount of Rs.91745/-, deposited under protest by the appellant be refunded to the legal heirs of the appellant.

(Nandita Dubey) Judge 14/10/2022

gn Digitally signed by SMT. GEETHA NAIR Date: 2022.10.14 16:53:21 +05'30'