IN THE HIGH COURT OF JAMMU & KASHMIR AT JAMMU Criminal Appeal No. 1 OF 2007 AND Criminal Appeal No. 17 OF 2006 Bodh Raj Petitioner State & Ors Respondent !Mr. D.S. Saini, Advocate ^Mr. P.C. Sharma, AAG Hon'ble Mr.Justice Vinod Kumar Gupta DATE: 26/12/2008 :J U D G M E N T :
Accused appellant Bodh Raj is a teacher and in the month of
September 1976 he made a representation to the District Education
Officer, Jammu for his transfer from central School Kanyala to any
other School in Jammu proper. He was transferred to Govt. Higher
School Gole Gujral vide order No. 4450-54 dated 18.10.1976 under
the orders of District Education Officer. In compliance with this
transfer order, the accused-appellant joined in Govt. High School
Gole Gujral on 23.10.1976. Subsequently he was given the charge
of clerk also and was authorized to draw salary and other bills by the
Headmaster vide communication dated 15.2.1977 from the
Government Treasury, Town Hall Jammu. The Headmaster of the
school was the Drawing and Disbursing Officer of the Institution.
During the period from August 1978 to August 1980, it is alleged
that the accused-appellant prepared 25 forged bills and drew
different amounts from the Treasury and misappropriated that
amount. This withdrawal of the amount after preparing forged
documents was detected when one Shri S.N. Dhar received a letter
from Accountant General, Srinagar to deposit an amount of
Rs. 3000/- drawn by the Headmaster of Govt. High School Gole
Gujral during 1978 and debited in his account. After verification of
the record, this whole affair was detected. Report was lodged with
police Station Domana, Jammu by the Headmaster Govt. High
School Gole Gujral on 17.12.1980.
2. On this report, FIR No. 168/80 under sections 420/471 RPC
was registered with the Police Station Domana. During
investigation it was found that the accused-appellant had prepared
25 fraudulent bills during 1978 to 1980 and has withdrawn an
amount of Rs. 67,950/- from the Treasury and misappropriated the
same. The investigation was subsequently handed over to the Crime
Branch and after completion of the investigation 8 different charge
sheets(challans) were produced in the court of law. After trial of all
these cases, the accused was acquitted of charges in six cases, but
was convicted in two cases in challan Nos. 124 and 128 under
sections 420/465/471 RPC and sentenced him to undergo simple
imprisonment of six months and a fine of Rs. 1000/- under section
420 RPC, simple imprisonment for six months for the commission
of offence under section 465 RPC and a sentence of simple
imprisonment for six months for the commission of offence under
section 471 RPC in both cases vide orders/judgment dated
11.10.2007 and 09.01.2007. Sentences were to run concurrently.
3. The learned trial court convicted and sentenced the accusedappellant
in both cases on the ground that it stands proved that the
accused prepared forged bills in both the cases under the signatures
of Drawing and Disbursing Officer and drew the amount of the bills
from the Treasury and misappropriated the same. Aggrieved by
these impugned orders/judgments, the accused appellant has
preferred these two appeals.
4. I have heard the learned counsel for the parties. I have also
perused the record on the files.
5. Both these appeals are taken up together because the facts in
the case are identical and same question of law is involved in both
the appeals.
6. Mr. D.S. Saini, Advocate appearing for the accused-appellant,
has submitted that the evidence relied upon by the learned trial court
in the case is inadmissible because the statements of the witnesses
have been transferred from one file and the accused has not been
afforded any opportunity for cross-examination in other cases and
thereby accused is prejudiced. The handwriting and signatures of
the accused on the bills have not been proved by the prosecution.
He has further submitted that the statement of the accused under
section 342 Cr.P.C. has not been recorded properly inasmuch as all
the accusations found in the prosecution evidence were not put to the
accused. He has further submitted that Investigating Officer has not
been produced in the case which has caused prejudice to the
accused/appellant. On the other hand, Mr. P.C. Sharma, learned
Additional Advocate General, has submitted that the prosecution has
succeeded in proving its case and the evidence of the witnesses in
the case is admissible under sections 47 and 73 of the J & K
Evidence Act in respect of handwriting and signatures of a person.
He has further submitted that under section 510 Cr.P.C. the
certificate of handwriting expert is admissible without examination
of the expert.
7. It is admitted by the trial court itself that the evidence in these
cases has been recorded in one case only and the copies of the same
have been transferred to the other cases and the entire record has
been seized in one case only and there is no documentary evidence
on other files. He has admitted that this is the wrong procedure
because there is no provision in the Code of Criminal Procedure for
clubbing of the cases. At page 4 of the judgment, the trial court has
observed as under:-
“Complicity of accused in commission of
offences under section 420/471 RPC was
established, and the transactions were split, into
seven cases, in terms of section 234 Cr.P.C.
Charges were not only split, but different cases
were even registered against the accused, in
respect of different fraudulent with drawls, one
could understand the necessity of splitting the
cases but registration of different reports was not
needed at all, as during the investigation of case
FIR No. 168/80, different fraudulent withdrawals
were unearthed, so even a single FIR could fulfill
the procedural requirement. Anyway, it is no use
to comment upon it now. Instant case is the end
result of investigation in case FIR No. 98/1984,
and this judgment shall be limited to this case
only. Ordinarily, convenient course would have
been to dispose off all the seven cases through a
single judgment, because all these cases have
emanated from case FIR 168/80, and evidence
has also been recorded in one case only though
placed on separate files, and the entire seized
record, and the other documentary evidence lies
on one case file pertaining to case FIR No.
168/80, but that would again be a wrong track as
in criminal procedure there is no provision for
clubbing of cases. So, each case has to be taken
up individually for decision though it would be
highly inconvenient. Since record lies on one file
only, so reference to the record where ever
inevitable in this judgment would mean reference
to record on File No. 130/Session which relates
to case FIR No. 168/80, and so it would be the
mother file, for rest of the files including this
one.”
8. Although the learned trial court has admitted that
the wrong procedure has been adopted in
splitting the cases by the investigation and
subsequently tried by the court by clubbing
those cases as there is no such provisions
evidence in the Code of Criminal Procedure
itself. He has also admitted that the evidence
oral as well as documentary is in File No.
130/Session relating to the case FIR No. 168/80.
By doing so, in my opinion, this is an illegality
which has caused serious prejudice to the
accused-appellant because he has been convicted
in two cases where the evidence has been taken
from other file in which the accused has been
acquitted of the charge.
9. In order to substantiate the charges against the
accused, the prosecution has examined Bank
Manager Bal Krishan Gupta PW, Kuldip Raj
Sharma PW a bank employee, Paras Ram, Har
Dutt, Sharma and Bodh Raj PWs employees of
treasury proving that the accused-appellant had
been withdrawing amount of the treasury. The
prosecution has also examined Gullu Ram and
Som Nath Dhar PWs, who were teachers posted
in the School and amount of Rs.2500/- and Rs.
3000/- had been withdrawn from their G.P Fund
account without their applications. Gyan Chand,
I.D.Soni and Gurbachan Lal PWs are witnesses
to the seizure of record. The depositions of these
witnesses do not connect the accused-appellant
with the commission of offence even remotely.
10. The other evidence on the mother file is the
depositions of Yogya Dutt PW and Kanwarjeet
Singh PW, who were Head Masters at the
relevant time and as Head Master they were the
Drawing and Disbursing Officers. They have
deposed that they have not signed the withdrawal
bills and the same are forged or fraudulent. The
evidence relied upon by the learned trial court is
the statement of PW Yagya Dutt, the then
Headmaster Govt. High School Gole Gujral. He
has also deposed that he is acquainted with the
signatures of the accused. The accused has
prepared and signed the bills in dispute. He has
further submitted that the accused-appellant has
forged his (witness) signatures on these bills. He
has admitted that he has not signed any bill but
the accused has forged his signatures.
11. The learned trial court has held that this
statement of the Yogya Dutt PW is admissible in
evidence because it fulfills the requirements of
section 47 of the Jammu and Kashmir Evidence
Act. In taking this view the learned trial court
was not correct because section 47 is not
applicable and the opinion given by the witness
is not admissible under section 47 of the Jammu
and Kashmir Evidence Act, section 47 reads as
under:-
“47.Opinion as to handwriting, when relevant.
When the Court has to form an opinion as to the person
by whom any document was written or signed, the
opinion of any person acquainted with the handwriting
of the person by whom it is supposed to be written or
signed that it was or was not written or signed by that
person, is a relevant fact.”
From the plain reading of this section, it is clear that the opinion of
the person acquainted with the handwriting of the person by whom it
is supposed to be written or signed is admissible if the said person is
well conversant and acquainted with the handwriting of said person.
In this case the signatures and handwriting of the accused on the
forged bills is not in dispute. The allegation against the accused is
that he has forged the signatures of Drawing and Disabusing Officer
of the institution namely, Headmaster of that school. Headmaster
Yagya Dutt PW has deposed that he has not signed those bills. He
has exceeded in deposing that these signatures have been forged by
the accused. This evidence of the witness is not admissible because
he is neither expert in forming any opinion that the signatures have
been forged by the accused on the disputed bills nor he is acquainted
with the forged signatures of the accused-appellant of different
persons including himself. He can only state that he has not signed
those bills. Heavy burden lies on the prosecution to prove that the
accused has forged those signatures.
12. Section 47 of the J&K Evidence Act makes
relevant the opinion of ordinary witness in
absence of opinion of expert and the same is
admissible sometimes in respect of handwriting
or signature. The opinion of expert is also
relevant under section 45. In the instant case, the
handwriting expert has not been examined
although his report was on record. The learned
trial counsel has held that the report of the expert
cannot be admitted in evidence on the ground
that the expert has not been examined and crossexamined
on account of his non production.
13. The contention of learned AAG that the report of
the handwriting expert although not proved
during the trial is admissible in evidence under
section 510 Cr.P.C. In my opinion, this
contention of the learned counsel for the State is
devoid of any force. Section 510 reads as under:-
“510. Report of Chemical Examiner.
i. Any document purporting to be a report under the
hand of any Chemical Examiner or Assistant
Chemical Examiner to Government or the Chief
Inspector of Explosives or the Director of Finer Print
Bureau or an officer of the Mint, upon any matter or
thing duly submitted to him for examination or
analysis and report in the course of any proceeding
under this Code, may be used as evidence in any
inquiry trial or other proceeding under this Code.
ii. The Court may, if it thinks fit, and shall, on the
application of the prosecution or the accused,
summon and examine any such person as to the
subject-matter of his report.”
This provision does not cover the case in hand. Sub section
(2) provides that the witness be summoned on the
application of prosecution. This provision can be invoked
only if the prosecution gives a statement in the court for
taking on record the report of the Chemical examiner or the
authority mentioned in the provisions itself. There is
nothing on record to show that the prosecution ever made a
request to the trial court for taking into consideration the
report of handwriting expert. This report is inadmissible in
evidence unless it is proved that this report is covered under
this provision. Even otherwise the report of the handwriting
expert is a weak evidence cannot be considered conclusive
in arriving at a final conclusion without any corroborative
evidence. As stated above there is no other evidence on the
file to prove this fact.
14. Now the question arises in the case as to whether
the opinion of Yagya Dutt PW that the accusedappellant
has forged his signatures is admissible
in evidence. It is a settled law that opinion
evidence is hearsay and becomes relevant only if
the condition laid in section 47 of the Evidence
Act is proved. Reliance is placed on case Rahim
Khan Vs. Khurshid Ahmed, AIR 1975 SC 290.
The opinion given by the witness is that the
accused-appellant has forged the signatures of
said witness. As stated earlier that the witness is
not well conversant with the forged signatures
made by the accused. He has not stated on what
basis the witness has formed this opinion and
how he is conversant with the signatures alleged
to have been forged by the accused-appellant.
Thus this opinion is irrelevant and is inadmissible
in evidence. It is now well settled that the
opinion of the expert or person shall be received
with great case caution and alone cannot be made
basis for conviction of an accused. It can be
relied upon when supported by other evidence. It
is unsafe to base a conviction solely on the
opinion without substantial corroboration. The
learned trial court has also taken aid of section 73
of the Jammu and Kashmir Evidence Act which
permits the court to comparison of
signatures/writing etc of a person with the
writing/signatures of that person as stated above.
This provision would also not help the
prosecution in probing its case. There is no
admitted forged signatures of Headmaster by the
accused which are admitted and as such the same
cannot be compared with the forged signatures
on the bills. Further also the court cannot come
to the conclusion that the accused has forged
those signatures only on the basis of comparison
of its own without any other evidence on record.
15. The learned trial court has also taken aid of
section 73 of the Jammu and Kashmir Evidence
Act which permits the court to compare the
disputed signatures/writing etc. of a person with
the admitted writing/signature of that person.
This provision would also not help the
prosecution in proving its case. The trial court
has not taken the signatures from the accused like
forged one in its presence and thereby compared
the same with the disputed forged signature. The
trial court has also not taken the signatures of
Head Master, witness Yogya Dutt, the Drawing
and Disbursing Officer to see as to whether those
signatures were genuine of forged one. There is
no admitted forged signatures of Headmaster by
the accused and as such the same cannot be
compared with the forged signatures on the bills.
Further also the court cannot come to the
conclusion that the accused has forged those
signatures only on the basis of comparison of its
own without and other evidence on record. The
conviction cannot be bases solely on the evidence
of comparison of signature by court.
16. There is set procedure and norms for withdrawal
of any amount by any institution from the
Treasury. The bills can be prepared by any
person but the amount is withdrawn from the
Treasury only on the authority and signatures of
Drawing and Disbursing Officer. After
withdrawal of the amount from the Treasury the
said amount is disbursed to the concerned by the
Disbursing Officer. In the instant
( Vinod Kumar Gupta)
Judge
Jammu
26.12.2008
Chuni/jr
