JUDGMENT
Farooq Hasan, J.
1. This revision petition is directed against the judgment passed by the Addl. Sessions Judge, Dausa dated 10-7-1979 whereby he partly accepted the appeal of the petitioner. The learned Addl. Sessions Judge while partly accepting the Appeal reduced the sentence, but he maintained the conviction of the petitioner under Section 408 IPC
2. Briefly stated the facts of the case are that Shri Prabhu Dayal Assistant Engineer, Rajasthan State Electricity Board, Sambhar Lake, sent a written report on 15-7-1972 to the police station Sambhar Lake, with this averment that at the time of audit case of embezzlement was detected against the petitioner. It was further alleged in the report that Laxman Singh petitioner was an LDC in the Electricity Board who used to collect the electricity bill demand on the spot, and in this way he was also working as a cash collector. It was further alleged in the report that demand of Rs. 103.03 P. was issued against one Dayal son of Buddha in account No. 10/25/1. This amount was collected by the petitioner in the month of June, 1970, but the same was not deposited in the office and in this way the petitioner misappropriated the amount which was to be deposited in the office of the Electricity Board. On receipt of this report, initially a case under Section 408, IPC was registered against the petitioner but during the course of investigation the facts as alleged in the report were found to be correct. During the course of investigation, it was also known to the Investigating Agency that the petitioner received the amount of demand from Kesra and he gave the receipt on the same bill while writing that the amount is received. That bill is marked an Ex. P. 3. This amount was also found to have been entered in the ledger, but had not been deposited in the Board. Therefore, a charge sheet for an offence under Section 408, IPC was submitted in the court of Judicial Magistrate, Sambhar. The accused denied the charge & claimed to be tried. After recording the prosecution evidence and statement of the accused, the leared Magistrate found the accused guilty and sentenced him to one year R.I. and a fine of Rs. 200/-, in default of payment of fine he was ordered to further undergo one month’s R.I. Aggrieved by this judgment of conviction, the petitioner filed an appeal, which was decided as indicated above.
3. Heard learned counsel for the parties. Learned counsel for the petitioner made the following submissions:
(1) That it has not been proved by the prosecution that the demand amount was received by the petitioner from Kesra s/o Dayal;
(2) That the scribe of Ex. P 1. P 6. P 12, P 13, and P 14, were produced and those documents have not at all been proved by the prosecution;
(3) That the deposition of the prosecution witness regarding the identity of hand-writing of the petitioner cannot be relied upon;
(4) That the hand-writing expert has not been examined in this case, which was essential in the facts and circumstances of the case;
(5) That the statements of the prosecution witnesses indicated that they were not coming with truth and on the contrary they tried to implicate the accused for the reasons best known to them.
4. The learned P.P on the other hand submitted that the accusation against the petitioner was fully proved by the prosecution and the accused petitioner has been rightly convicted by the courts below.
5. I have considered the arguments advanced by both the learned counsel for the parties and perused the record.
6. Looking to the facts and circumstances of the case, questions passed by the learned Addl. Sessions Judge were as follows:
(1) Whether the accused-petitioner did receive the amount of demand from Kesra ?
(2) Whether the amount received by the petitioner was not deposited in the office of the Electricity Board, and in this way the petitioner misappropriated the amount received ?
(3) Whether the accused-petitioner committed the offence as defined in Section 408, IPC ?
7. The questions posed by the learned Addl. Sessions Judge were the only questions which were involved in this case.
8. In case of misappropriation it is for the prosecution to prove that the amount in question has been misappropriated by the accused. It is not the duty of the accused to prove that the accusation is false. The onus of proof can shift to the opposite party only when the prosecution or the person alleging a particular fact against the accused or the opposite party proves the same. After the proof of the facts alleged the opposite party is under a legal obligation to rebut the facts proved against the party.
9. In the instant case, it has been alleged that there was demand of Electricity Board against one Dayal in Account No. 10/25/1. It has been alleged by the prosecution that PW 17 Kesra son of Dayal deposited the same with the accused-petitioner, and the accused-petitioner after receiving the amount gave a receipt on the bill, which was sent to Dayal from the office of the Electricity Board. On the Ex. P 4 the receipt of Rs. 103.03 P is written which is said to have been written by the accused petitioner. PW 4 Shyam Sunder Ramdeo has stated that the contents of receipt are in the hand writing of the accused-petitioner. PW 1 Prabhu Dayal has also given statement regarding the hand-writing on Ex. P3 and he has stated that the contents of receipt (Ex. P .3) are in the hand-writing of the accused-petitioner. The evidence of recovery of the amount of demand from Kesra is of Kesra, Prabhu Dayal and Shyam Sunder. All these three witnesses have given oral evidence on this point. The contents of receipt on Ex. P 3 are disputed. Therefore, it was incumbent for the prosecution to have proved the contents of receipt of the amount on Ex. P 3 by a strong evidence. The alleged signatures of the petitioner on Ex. P3 are on the back of which it is alleged that the petitioners gave receipt in his handwriting and signed it has not been properly proved so as to hold it as admissible in evidence. The signatures of the person can be proved as per the provision of Section 45, 47, 67 and 73 of the Evidence Act. However, in the instant case none of the requirements essential, for proving the signatures of the petitioner have been met with. There can be no gain saying the fact that the prosecution has not examined the hand-writing expert and for that matter the alleged signatures of the petitioner have not been subjected to examination by hand-writing expert. Importance of opinion to be given by a hand-writing expert in the case, and whether the signatures in dispute have not been otherwise duly proved is reflected in the decision of Kerala High Court in the case Kesavsmoorthy v. State of Kerala ILR 1965 (1) Kerala 692 in which it was observed as under:
There is a distinctive characterstic. which being the reflex of nervous organisation is more or less independent by writer’s will and shows in his hand-writing and the aid of one specially trained in discovering prudence or absence of these characterstics would be of considerable help to the court in taking a decision as to the identity of hand writing. In case of non-expert, the characterstics of their standard are necessarily indistinct, shady and uncertain.
The Hon’ble Supreme Court in its judgment in the case of H. Venkatachala Iyenger v. B.N. Thimmajemma and Ors. has given much importance to the opinion of the expert, Inspite of this the court also did not choose to resort to the provision of Section 73 of the Evidence Act, which enables the Court to ascertain the correctness of the signatures to compare it with the admitted signature of the person concerned taken in the court and to come at a decision. Expert’s opinion in comparison of the signature by court assumes much imporatance particularly in a situation where the witness, namely, Prabhudayal and Shyam Sunder, who claim that the signature contained on Ex. P 3 to be that of the petitioner leave several material contradictions to crept in their statements which makes them highly unbelievable and casts shadow of doubt on their veracity. Both these witnesses deposed that the signatures contained on Ex. P 3 were that of the accused. They, however, failed to ascertain as to whether entries contained in cash book (Ex. P 7) were in the hand-writing of the accused or not. Though the case of the prosecution was that Ex. P 7 also contained the signature of the accused-petitioner. So, both these witnesses at one time say that Ex. P 3 contains the hand-writing of the accused petitioner, but at the other time they say, “They cannot say with certainty that Ex. P 7 contains the hand-writing of the accused-petitioner or not.” When confronted specifically, they could not say that Ex. P 7 was in the hand-writing of the accused or not. This fact though in itself may appear to be of an insignificance but when read along with their earlier version wherein they said that they could very well recognise the hand writing of the accused, who had worked under their supervision. If these persons were sole to identify the accused’s hand-writing, as they have claimed wherein their evidence was taken to be admissible Under Section 67 of the Evidence Act, why they could not explicitly rule out the possibility of its being that of the petitioner on Ex. 7. Either they could have straight-away admitted Ex. P 7 to be in the hand-writing of the petitioner, or could have refused of its being so. If correctly appreciated, it can also render their statement as inadmissible in evidence as not being in consonance of the provisions of Section 67 of the Evidence Act. The state witness of the prosecution namely, Kesra (PW 7) who allegedly deposited the money with the petitioner has conceded in his cross-examination that when after about 4 to 6 months he visited the office, the office members told him that his money has been deposited, though bill would be kept by them. He also deposed that it were the members of the office who told him all about Laxman Singh petitioner, and he knew nothing about him from before. This part of his statement creates doubt about the truthfulness of his version specially when he says that he deposited the money with the petitioner. Looking to the entire statement of PW 7 Kesra it appears that his statement is open for two possible interpretations. In our judicial system the accused is always considered to be innocent unless and otherwise proved by the prosecution. In these circumstances, the interpretation which one favour the accused has to be preferred. For this, reliance can be placed on the case Sheonandan Paswan v. State of Bihar and Ors. wherein it has been observed that when two interpretations are possible that which is beneficial to the accused be preferred.
10. In the case of misappropriation two factors which are of paramount importance have to be proved, firstly the factum of entrustment, and secondly, the factum of misappropriation. As discussed above, as per the prosecution case, the amount was entrusted to the accused-petioner by Kesra, which was to be deposited in the Electricity Board office- Unless this entrustment is proved against the accused-petitioner, the question of misappropriation does not arise. I have observed above that in the instant case the factum of endorsement has not been proved beyond reasonable doubt.
11. In this case, the audit report (Ex.PI), Consumers Account Register (Ex. P 6), Consumers Cash Book (Ex. P 6(1) ), Ledger of Hanuman Prasad (Ex. P. 12). Cash Book of Jobner Office (Ex.P13) and cash book entry at page No. 20 (Ex. P. 14) are relied upon by the prosecution, but I am of the opinion that these documents are not proved by the prosecution due to the reason that the persons who maintained them have not been examined by the prosecution so much so that the check and cross checks have not been produced to support the documents. The cashier who maintained the cash book in the ordinary course of business who was supposed to have received the amount from the accused ought to have been given utmost importance and should have been produced as a witness. From the non-production of the cashier as a witness, an inference has to be drawn against the prosecution, and it shall be presumed that had the cashier been produced he would have given a statement prejudicial to the prosecution. Section 34 of the Evidence Act requires that before an evidence is held to be admissible as regards the entries and the books kept regularly, it should be proved how the account came to be written and the account books were regularly kept and maintained. It was necessary to examine the scribes of these books in support of the prosecution case. In the absence of such proof the above mentioned documents cannot be said to be admissible in evidence under Section 34 of the Evidence Act. The conviction based on such evidence cannot be allowed to be maintained.
12. In the case Zenna Gorabji and Ors. v. Mirabelle Hotal Co. (P) Ltd. and Ors. it has been observed as under:
A ledger by itself could not be a book of account of the character contemplated by Section 34 of the Evidence Act. Even assuming that the book of account produced was duly bound book of account, but unless other books for checks and cross checks are made available, and unless primary book of accounts are produced, ledger by itself could have no evidentiary value.
13. As discussed above, for the proof of question No. 1 as passed by the learned Addl. Sessions Judge oral as well as the documentary evidence was available. This is a settled principle of law that oral evidence cannot be a substitute for the documentary evidence, unless the conditions for producing the secondary evidence are there. In the instant case, the writing alleged to have been in the hand-writing of the accused-petitioner on Ex. P. 3 was the primary documentary evidence which was before the court. The hand-writing of the petitioner was disputed. As I have observed above that the expert witness was the only competent person who could have proved the hand-writting of the accused petitioner, and if that could have been above by the prosecution, then a strong evidence could have been brought on record against the accused-petitioner. The evidence of Kesra (PW 7) is also shaking. At one time he identified the accused-petitioner, but at the other time he said that it were the office members who introduced the accused-petitioner to him, and that too was after the disputed payment. Looking to the documentary evidence on record, it can also be concluded that there is no link in between Ex. P. 3 and the other documents produced by the prosecution, because only the evidence of signatures of the petitioner on Ex. P. 3 has been adduced, but there is no evidence about his signatures on other documents produced by the prosecution. Therefore, it can be held that there is no link between these two documents, and benefit of that shall definitely go to the accused-petitioner.
14. Looking to the entire evidence of the prosecution, and particularly that of Kesra (PW 7). Shyam Sunder Ramdeo (PW 4) and Prabhu Dayal (PW 1), I am of the opinion that it is highly unbelievable, and no conviction can be based on the testimony of these witnesses.
15. I, therefore, accept the revision petition, set aside the judgments of the courts below and hereby acquit the accused-petitioner of the charge under Section 408, IPC. The accused petitioner Laxman Singh is on bail. His bail bonds are cancelled.