HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Rev No. 54 OF 1999 AND Cr M P No. 166 OF 1999 Shabeer Ahmad Petitioners State of J&K Respondent !Mr. Anil Sethi, Advocate ^Mrs. Shaista Hakim, Dy. Advocate General Honble Mr. Justice Virender Singh, Judge Date: 03.09.2008 :J U D G M E N T:
Petitioner, Shabeer Ahmad, (hereinafter for short as
accused) who was working as Junior Assistant in Govt. Girls High
School, Darhal Malkian, stands convicted under Section 409
Ranbir Penal Code by the learned Chief Judicial Magistrate,
Rajouri, vide judgment dated 12.01.1999, which is further affirmed
by learned Sessions Judge, Rajouri, vide judgment dated
03.07.1999. He has been sentenced to undergo rigorous
imprisonment for two years and a fine of Rs.10,000/-, in default
thereof, to further undergo imprisonment for six months. Aggrieved
of both the judgments, he has preferred the instant revision
petition, which already stands admitted and his substantive
sentence has been suspended during the pendency of the instant
petition. Presently he is on bail.
Although the prosecution case, in detail, is narrated in both
the impugned judgments, yet it needs to be reflected once again in
brief.
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Head Master, Govt. Girls High School, Darhal Malkian,
lodged a written complaint in Police Station Darhal on 19.12.1992
alleging therein that the petitioner and one M. K. Handoo had
misappropriated the government money relating to the following
treasury vouchers:-
Rs.98916-20 Paisa drawn on 14.08.92 vide Treasury
Voucher No.267
Rs.7608 drawn on 14.08.92 vide Treasury Voucher No.266
Rs.10125-00 drawn on 29.07.92 vide Treasury Voucher
No.379
Rs.2656-00 drawn on 29.07.92 vide Treasury Voucher
No.378.
At the relevant time the accused was working as Junior
Assistant in the school, whereas aforesaid Handoo was Drawing &
Disbursing Officer (hereinhafter for short as DDO) of the school.
The allegation was that both had drawn the aforesaid amount from
the government treasury Rajouri as Pay Fixation Arrears of the
employees, but did not disburse the same to the concerned officials.
Primarily, on these allegations F.I.R. No.115/1992 was registered
with the concerned police. During investigation it revealed that in
fact the petitioner had misappropriated government money to the
tune of Rs.1,19,305.20/- for which he could not account for,
therefore, a challan (final report in terms of Section 173 Cr.P.C.)
was submitted against him only and aforesaid Handoo was not
found to be involved in the present case by the police in its
investigation, instead he was put in the list of witnesses by the
prosecution and examined also during the trial.
The accused was, accordingly, charged under Section 409
R.P.C.
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The plea of the accused is of false implication in this case
shifting the entire liability to the aforesaid M.K. Handoo.
I have heard Mr. Anil Sethi, learned counsel for the
petitioner, Mrs. Shaista Hakim, learned Dy. Advocate General
representing the State and have also gone through both the
impugned judgments, the evidence and the other relevant material
from trial Court record.
Mr. Sethi at the very outset submits that although the
accused had taken the shelter under Section 197 Cr.P.C. before
both the Courts below but the same was not legally available to him
and, therefore, he does not press the instant petition on that count.
The foremost attack launched by him is that, in fact, the real
culprit in this case was M. K. Handoo, Zonal Education Officer, who
was admittedly the Drawing and Disbursing Officer (DDO). He has
been let off by the prosecuting agency during investigation without
any basis and even the trial Court has given him a clean chit by
simply saying that he was very careless in discharging his duties.
According to the learned counsel, without passing the bills by Mr.
Handoo, it was not possible to draw the amount from the treasury.
Even otherwise, after taking out the money from the treasury, the
same was subject to verification by the DDO and thereafter the
entries were to be made in the cash book. Only then the amount
was to be disbursed to the concerned employees. Therefore, it was
the prime duty of the DDO to check and have the initial control
over the cash received from the treasury. He states that even on
drawl register on page 36, the words cancelled and not drawn are
written and this is cross-checked by the signatures of DDO.
According to Mr. Sethi, the entire procedure is provided in
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Financial Rules and the present case, if examined from that angle,
then the DDO only was to be booked in this case and not the
accused, who had simply acted upon the instructions of aforesaid
Mr. Handoo. He has drawn the attention to the relevant entry from
drawl register.
Taking the prosecution case, yet on another technical aspect,
Mr. Sethi submits that the accused had at no stage any dominion
over the aforesaid amount as he was never entrusted with that and,
therefore, he can not be held liable for misappropriating the same
or to convert into his own use. To elaborate his view point further,
Mr. Sethi submits that for the purpose of proving the charge of
Section 409 RPC, the prosecution is supposed to prove the main
ingredients viz.; an entrustment of the property or dominion over
the property in a capacity as a public servant; there should be
criminal breach of trust with regard to that property and there
should be conversion of the said property for personal use of the
public servant. In the present case, the prosecution has not been
able to prove any of the three ingredients so as to bring it within
the mischief of Section 409 RPC. While referring to the statement
of certain witnesses (five in number from the trial Court record),
Mr. Sethi submits that all these witnesses have deposed that the
accused was a accounts clerk in the school and have nowhere
stated that he was dealing with the cash. Therefore, merely dealing
with the accounts as Accountant would not amount to deal with
the cash. Even otherwise, disbursement was also not the job of the
accused at all. From all these facts, Mr. Sethi wants to develop
that both the Courts below have fallen into grave error by
presuming that the accused was required to make the
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disbursement and, as such, the view taken against the accused is
bad in the eyes of law calling for the interference of this Court.
Mr. Sethi then assails the conviction submitting that not
affording a reasonable opportunity to the accused to lead his
defence is a glaring irregularity in the procedure resulting into
miscarriage of justice and this flaw also calls for interference of this
Court so as to remit the entire case to the trial Court. According to
him, a valuable right of defence has been virtually snatched from
the accused causing grave prejudice to him. He submits that the
accused has been facing a grave charge, which has very serious
ramifications, and, therefore, under the present set of
circumstances especially when the accused has been facing a
protracted trial for the last more than sixteen years, if is not able to
have a verdict of acquittal in his favour on the basis of weaknesses
pointed out hereinabove, his alternative prayer for remand of the
case to the trial Court enabling him to put up his effective defence
may be acceded to.
In order to strike his aforesaid view point home, Mr. Sethi
submits that on 05.11.1993 the accused had placed on record two
receipts as is evident from the short order (zimini order) dated
05.11.1993 and when PW Mohd. Ameen (Headmaster/ Incharge of
Govt. Girls High School) had stepped into witness box on
27.07.1994, one of the receipts dated 14.08.1992 amounting to
Rs.94,000/- was shown to him suggesting that the same was
bearing his signatures, but he denied the said factum. A specific
suggestion was put to him that he himself had embezzled the
amount and made the accused scapegoat in this case. So far as
the second receipt is concerned, it related to another witness Mohd.
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Akbar, who appeared as prosecution witness on 21.09.1994 but he
had not deposed against the accused and perhaps for that reason
the said receipt was not shown to him. Mr. Sethi submits that
since the main witness namely Mohd. Ameen had denied his
signatures on the receipt dated 14.08.1992, the accused after the
closing of the prosecution evidence, moved an application under
Section 73/45 of the Evidence Act before the trial Court on
23.02.1998 asserting therein that in order to come to the just
conclusion of the case, he be granted an opportunity to lead the
evidence by way of getting the report of the expert with regard to
the author of those receipts. The plea was that the prosecution had
not come with clean hands and that even the investigation was also
silent on that aspect. The grievance now projected is that the said
application stands rejected by the learned trial Court vide order
dated 24.03.1998 without any basis observing that allowing of the
said application would amount to wastage of time. Attention of the
Court has been drawn to the said application and the impugned
order from the trial Court file.
Mr. Sethi submits that, in fact, the aforesaid application was
rejected by the learned trial Judge by passing a cursory order and
instead of sending the admitted and disputed signatures to the
handwriting expert, took upon himself the job of comparing the
signatures. He submits that although Section 73 of the Evidence
Act, empowers the Court to compare the disputed writing with the
specimen/ admitted writing shown to be genuine, the prudence
demands that Court should be extremely slow in venturing an
opinion on the basis of mere comparison, more so, when the quality
of evidence in respect of admitted writing is not of high standard.
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Section 73 of the Evidence Act does not give an absolute power to
the Court to act as an handwriting expert and in the absence of
testimony of any handwriting expert in the matter, it would b e
rather too much for the judge to use his own eyes for the purposes
of deciding a very vital point. According to Mr. Sethi, the learned
trial Judge, while rejecting the application of the accused, has
compared the signatures on the receipt produced by the accused
with some signatures appended by the signatory in the Court file.
He contends that to fall within the definition admitted signatures
the signatures should be such, which are affixed or used prior to
the offence so that the genuineness thereof cannot be challenged.
Any clever person can change his signatures in the Court and make
that look different from the one appended by him on earlier
occasion. Therefore, the learned Magistrate being of non-technical
person instead of comparing the signatures himself should leave it
to the wisdom of handwriting expert. The learned trial Judge was
not able to differentiate the two handwritings and it depends upon
many factors like pressure upon the paper, angle, softness,
hardness and mode of writing etc., and these aspects these cannot
be compared with a naked eye. Therefore, rejecting the application
by the learned trial Judge in a hurried manner has caused grave
prejudice to the accused as he has been deprived a valuable right of
defence. He submits that the prosecution was afforded long seven
years to complete its evidence, whereas the accused was not at all
given a reasonable time to defend his cause. He is ready to face the
ultimate outcome but through proper and fair trial, and, therefore,
prays for remand of the case. In support of his contentions, Mr.
Sethi relies upon the following two judgments:-
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1. State (Delhi Administration) v. Pali Ram, AIR 1979
SC page 14
2. State of Maharashtra v. Sukhdeo Singh and
another, AIR 1992 SC page 2100
Mr. Sethi lastly submits that though he is on sound footing,
yet in the event of conviction of the accused being upheld by this
Court, his case deserves to be dealt with leniently with regard to
quantum of sentence. He has already faced a protracted trial of
long sixteen years in which he has not only lost his job, his entire
family of which he is the sole bread winner is shattered. It consists
of female children also. He then submits that the accused also
remained in custody for sometime during trial and for few odd days
after his appeal was dismissed by learned lower Appeallate Court,
and, therefore, he may be let off with the period already undergone
by him.
Arguments advanced by Mr. Sethi are repudiated by Mrs.
Hakim vehemently on all counts praying for the dismissal of the
instant revision petition.
Revision petition on hand is to be rescanned within a settled
limited zone of appreciation. Admittedly, the conviction suffered by
the accused stands confirmed by the lower Appellate Court and,
therefore, it would call for interference only when there is a
manifest illegality committed by both Courts below or the gross
irregularity apparent on record committed in the procedure.
Let me examine this case first of all with regard to charge. In
this regard, I have gone through the statements of certain relevant
witnesses, who have deposed against the accused.
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The pay arrear bills amounting to Rs.1,19,305.20/- have
been prepared by the accused and after getting them signed by the
Zonal Education Officer, he presented them in the Government
Treasury. PW Mohd. Ameen, who was Incharge Headmaster of the
school in 1992, has deposed that the accused was Junior Assistant
in the school and he was drawing pay and T.A., of the employees of
the school and used to disburse the same to the employees. He has
further stated that accused also used to maintain the cash-book
and drawl register.
In year 1992, the grades of the employees were revised on
account of which employees of the school were entitle to their
arrears w.e.f. 1987 to 1992. The arrears due to them were not
paid as is clear from the statements of certain witnesses. It has
also come in evidence of some of the employees that accused
avoided and told them that there was no cash in the treasury, and
he had even concealed the drawl register, cash-book and other
relevant record, which were ultimately taken into custody during
investigation.
PW Ghulam Hussain has categorically stated that in
September, 1992 when he joined the school as Headmaster, the
employees demanded their pay arrears and on his inspection and
checking he found that the bills for pay arrears were entered in the
drawl register, but certain entries had been cancelled. He
thereafter got the bills prepared and submitted to the treasury
through one teacher namely Mohd. Azam, but came to know that
the bills had already been drawn. On enquiry, he came to know
that the accused was the concerned clerk dealing with the accounts
i.e. pay etc., and had drawn an amount of Rs.1,19,305.20 paise
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from the government treasury. He also stated that on page 36 of
the drawl register the words cancelled and not drawn were found
written by the accused and the DDO had crossed his signatures.
PW Romesh Chander, the then accountant in treasury, has
deposed that the accused was dealing with the bills and he was
coming to the treasury to encash them. He also states about the
payment made to the accused with regard to the arrear bills of the
employees of the school.
Statement of PW Mohd. Azam, the then treasury officer, is
also relevant in this regard. He has stated that in 1992 he was
working as treasury officer in Government Treasury and accused
used to visit the treasury as cashier of the school. Drawl register of
the school was shown to him and on the basis of the record, he
stated that on 09.07.1992 payment was drawn from the treasury
and vide page 36 of the drawl register, the alleged treasury voucher
Nos. 266, 267, 378 & 379 were drawn from the treasury after bills
were passed by him. No doubt, with regard to words not drawn on
page 36 of the drawl register, this witness stated that it was not
known to him as in whose hand those words were written as it was
in possession of the school official.
I do not feel the necessity of reproducing the statements of
certain employees, who when stepped into the witness box, stated
that the accused was incharge of drawl and disbursement, and he
had drawn the amount from the treasury with regard to the arrears
of the employees, but the same were not paid to them.
No doubt, in the statement of aforesaid PW Ghulam Hussain,
it has come that on page 36 of the drawl register the words
cancelled and not drawn are cross-checked by the DDO, but in my
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view, the same would not make any difference. Though, Mr. Sethi
from this fact situation has made an attempt to demolish the case
of the prosecution saying that it was Mr. Handoo, the DDO who
had crossed his signatures on this writing and, therefore, the
entrustment of the amount to the accused is not proved and not
that the prosecution has let him off, even the Court has also given
him a clean chit by dubbing him a careless official only, yet in my
view, the argument advanced by him has no weightage at all as it is
clear from the statement of PW Romesh Chander, the Accountant of
the treasury, that at the relevant time the accused was dealing with
the payment to the Education Department and he on behalf of the
DDO was presenting the bills of the school and in the same manner
he had presented the pay arrear bills relating to the present case in
the treasury, which were duly passed and signed for payment to the
bank. He has also stated that the DDO had authorized the accused
to encash the bills and, therefore, the payments were made to him.
After rescanning all the relevant facts, I do not find any
difficulty in holding that the accused being a Junior Assistant was
dealing with the accounts of the school at the relevant time and he
had drawn the alleged bills amounting to Rs.1,19,305.20 paise vide
Treasury voucher Nos. 266 & 267 dated 14.08.1992 and Treasury
voucher Nos.378 & 379 dated 29.07.1992. He is, thus, solely
responsible in this case, who was duly entrusted with the amount
as he is one, who got all the bills cleared from the treasury but did
not disburse them further to the employees. Entrustment is, thus,
proved to the hilt. Therefore, the argument advanced by Mr. Sethi
with regard to non-involvement of Mr. Handoo the then DDO, is
neither here nor there as the same would not advance his cause to
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any extent. Admittedly, he was initially booked but subsequently
not challaned as the prosecution agency did not find any fault from
his side. The learned trial Court has also observed that he was
careless in discharging his duties and did not bother to follow the
rules governing the drawl and disbursement of government money,
but at the same time held that he was not a party to the crime
committed by the accused alone and that is the reason that he was
not arrayed as accused during trial. I do not find any good cause to
disturb that finding so as to extend any benefit towards the
accused, whose case, in my considered view falls squarely within
the mischief of Section 409 RPC.
As a sequel to the aforesaid discussion, I do not find any
manifest illegality committed by both the Courts below in
appreciating the prosecution evidence causing miscarriage of
justice.
Let me now advert to the so-called irregularity projected by
Mr. Sethi in the procedure stating that a reasonable opportunity to
the accused was not afforded to lead his defence evidence. He in
this regard relies upon two receipts, one allegedly prepared and
signed by PW Mohd. Ameen and the other by Mohd. Akbar. So far
as receipt relating to Mohd. Akbar is concerned, admittedly, it was
not shown to him when he stepped into the witness box. The
argument advanced by Mr. Sethi that there was no need of showing
the said receipt to this witness as he had not said much against the
accused is not appealing to me. This witness has categorically
stated that he had not received the arrears of pay fixation and
whenever he enquired from the accused or even from Z.E.O., the
explanation was that the bills were not passed. Thereafter, he was
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transferred from the school in December, 1992 and ultimately he
got the arrears in May, 1994 as double drawl. He has further stated
that the accused used to draw and disburse the pay to the
employees.
With regard to the receipt amounting to Rs.94,000/- dated
14.08.1992, when PW Mohd. Ameen stepped into the witness box,
in his cross-examination, the said receipt was shown to him and he
denied the factum of the same being signed or issued by him. His
statement was recorded on 27.07.1994. Admitted position on
record is that the aforesaid receipt and the other receipt allegedly
issued by PW Mohd. Akbar were placed on record for the first time
by the accused on 05.11.1993 as is evident from the zimini order.
Undoubtedly, these were in possession of the accused only and he
did not make any attempt to build his defence on the basis of the
said receipts during investigation. Those receipts were simply
tendered by his counsel on 05.11.1993 and one of the receipts
amounting to Rs.94,000/- was shown to PW Mohd. Ameen for the
first time on 27.07.1994 when he appeared as prosecution witness.
The accused cannot get out of the fact situation till that date, he
was not banking upon the said receipt. As is evident from the
record, after the closure of prosecution evidence, he moved an
application on 23.02.1998 under Sections 45, 67 and 73 of the
Evidence Act for comparison of the signatures of the witnesses by a
handwriting expert, which came to be dismissed by the trial Judge
on 24.03.1998. I have gone through the said order once again
minutely and the same when reproduced, reads thus:-
P.O. present. Sh. Pervez Ahmed Adv. for the
defence. Accused is present in person also. An
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application has been moved by defence counsel on
23.2.1998 under sections 45, 67 and 73 of Evidence Act
for comparison of signatures by expert. This
application has been resisted by the prosecution and the
objection putforth by prosecution are on record.
Heard arguments and perused the file.
The case against the accused is that has
misappropriated the Govt. money and the case was on
the stage of final arguments, when the instant
application came to be moved by defence counsel. As
per defence counsel an amount of Rs.94500/- has been
received by PW6 Mohd Ameen against a receipt dated
14.8.1992. The receipt is on the file. As per accused
the receipt has been signed by PW6 Mohd Ameen and
he has denied having signed the such receipt in his
examination in the court, so the alleged signatures of
PW6 on the receipt for Rs.94500/- dated 14.8.92 need
to be compared with the admitted signatures of PW6 on
his statement recorded in the court on 27.7.94.
Similarly counsel for the accused has submitted that
PW Mohd Akber has also signed a receipt for Rs.9700/-
and his statement too has been recorded and his
signatures too on the statement be compared with the
disputed signature on the receipt. After considering the
matter thoughfully. I am of the opinion that the matter
does not need an expert opinion. I have compared the
signatures myself in terms of section 73 of Evidence Act
so far as signatures of PW6 on his statement is
concerned. I feel that, it is no way similar to that of
disputed signature on the receipt dated 14.8.1992. The
expert opinion is needed in the very complicated cases
of disputing writing and in the instant case, I feel that
there is no similarity between the admitted signature
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and the disputed signature. Would there be any
similarity in the signatures, the opinion of expert was
needed but I feel that the admitted signature and
disputed signature of PW6 Mohd Ameen are totally
dissimilar and by naked eye even it can be observed that
the signatures are not alike and so I feel that it would
be mere wastage of time & money to refer the matter to
expert. Similar is the case with PW Mohd Akber also.
Counsel for the defence has in the open court conceded
that there is no similarity in the admitted signature and
disputed signature of PW Mohd Akber and so he
admitted that his signature does not need any expert
opinion.
In the light of foregoing reasons, I feel that the
opinion of expert as sought by defence counsel in
respect of the admitted and disputed signatures of PW
Mohd Amin and Mohd Akber is not needed at all as the
signatures are totally different and do not demand any
expert examination. I feel that the application is
groundless (sick) so rejected. File shall come up for
final arguments on 11.4.1998.
No doubt, that the Court while comparing the disputed
writing should be slow in venturing its own opinion on the basis of
mere comparison made by a naked eye, but it depends upon the
facts of an individual case. In the case on hand, the learned trial
Court has categorically observed that the expert opinion is needed
in a very complicated case of disputed writing and in the present
case there is no similarity between the admitted signatures and the
disputed signatures. The observation of the Court is that admitted
signatures and disputed signatures of Mohd. Ameen are totally
dissimilar and the same can be observed even by a naked eye. So
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far as signatures of Mohd. Akbar is concerned, it is said that the
accused himself had admitted that the same do not call for expert
opinion. I do not find any fault with the view taken by the learned
trial Court and, therefore, in my view, the accused cannot derive
any advantage on this count calling it to be a gross irregularity in
defending his cause. The judgments cited by Mr. Sethi on this
aspect are not applicable to the facts of the case on hand and,
therefore, do not put the accused on any advantageous position.
The statement of the accused recorded under Section 342
Cr.P.C., also assumes importance in this regard. After the entire
incriminating evidence was put to him in the shape of twelve
questions, he did not say a word about this receipt. From this all,
one can simply gather that his intention was just to delay the
proceedings and nothing beyond that. Therefore, in my considered
view, the learned trial Court has rightly rejected the said
application on all counts.
After re-scanning the prosecution case once again within the
settled legal parameters, I hold that there is no manifest illegality or
gross irregularity, apparent on record, calling for the interference of
this Court in exercise of its revisional jurisdiction. I, therefore,
confirm the conviction of the accused as already recorded by the
trial Court and upheld by the learned lower Appellate Court.
At the same time, I do not find any substance in the
arguments advanced by Mr. Sethi with regard to extending any
lenient tilt vis-`-vis the quantum of sentence. Even otherwise, the
instant revision petition, which is pending since 1999, is primarily
delayed by the accused himself, may be at one stage, it was heard
and reserved for orders by this Court and subsequently put for re17
hearing to seek some clarification on certain aspects. Delay in
disposal cannot be said to be mitigating circumstance in favour of
the accused especially in such type of cases.
Corruption in a civilized society is a disease like Cancer,
which, if not detected in time, is sure to lead to the disastrous
consequences. The evil of corruption has persistently crept into
various levels and this hydra-headed dragon of corruption has to be
lynched at the earliest, otherwise it is going to shake the socioeconomic
fabric.
Taking into account the present case from all aspects, the
sentence already slapped upon the accused in no manner can be
said to be harsh, rather it is most adequate and, therefore, does not
call for any reduction by way of lenient tilt.
The net result is that the present revision petition fails on all
counts and is, hereby, dismissed alongwith connected CMP(s).
Let necessary steps be taken to take the accused in custody
for serving the remainder of his substantive sentence. All quarters
concerned be informed accordingly.
( Virender Singh )
Judge
Jammu
03.09.2008
Narinder.
