PETITIONER: STATE OF GUJARAT Vs. RESPONDENT: VINAYA CHANDRA CHHOTA LAL PATNI DATE OF JUDGMENT: 05/09/1966 BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR RAMASWAMI, V. BHARGAVA, VISHISHTHA CITATION: 1967 AIR 778 1967 SCR (1) 249 CITATOR INFO : C 1967 SC1326 (8) RF 1973 SC2200 (3) ACT: Criminal Trial-Complainanl's statement-Corroboration with documents, statements of accused in other cases- Admissibility-Handwriting expert, examination, if essential. Indian Evidence Act, 1872 (1 of 1872), s. 45-Handwriting Expert, evidence, if conclusive. HEADNOTE: The respondent was charged under s. 408 I.P.C. for misappropriating the funds of his employer. The only witness to prove the entries and signatures on the cheques was the complainant (employer) and corroboration of his statement was sought from four documents two of which were said to be handed over to the complainant by the respondent when the respondent's conduct was found out. The other two documents were the, respondent's statement as are 'accused n a criminal case and an application given by the respondent in another case. The trial court convicted the respondent. On appeal, the High Court acquitted the respondent holding that (i) it was unsafe to rely on the statement of the complainant alone. (ii) the documents were inadmissible in evidence, and (iii) it was for the prosecution to example a handwriting expert to prove the disputed handwriting, In appeal by the State. HELD : The appeal must be allowed. (i) The complainant was competent to speak about entries and signatures, as the respondent had been his employee for a number of years. He had many an occasion to see the respondent write and sign. [251 D-E] (ii) The documents were admissible in evidence. The documents handed over by the respondent to the complainant and the statement of the respondent provide strong corroboration to the statement of the complainant. In fact the admission in the document together with the statement could also be treated as a confession of the respondent cashing the cheques, the subject matter of the charge in this case. The statements of the respondent in the criminal case and in the application in another case were admissible in evidence to prove his admissions with respect to these facts. [253 H; 254 F] (iii) It was not essential that handwriting expert must be examined in a case to prove or disprove the disputed writing. A Court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a Court to record a finding about a person's writing in a certain document merely on the basis of comparison, but a Court can itself compare the, writing in order to appreciate properly the other evidence produced before it in that regard. The opinion of an handwriting expert is also relevant in view of s. 45 of the Evidence Act, but that too is not conclusive. The sole evidence of a handwriting expert is not normally sufficient for recording a definite, finding about the writing being of a certain person or not. [251 G, H] JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No, 43 of
1964.
250
Appeal by special leave from the judgment and order dated
July 18, 1963 of the Gujarat High Court in Criminal Appeal
No. 527 of 1963.
A.S.R. Chari, M. V. Goswami AND B. R. G. K. Achar, for the
appellant.
V. S. Nayyar, AND H. M. Chenoy, for the respondent.
The Judgment of the Court was delivered by
Raghubar Dayal, J. This appeal, by special leave, is by the
State of Gujarat against the order of the Gujarat High Court
acquitting the respondent of the offence under s. 408 I.P.C.
The respondent was an employee of Nalinkant P.W. 1, sole
proprietor of Arora Trading Company, in 1959. He was in
service from 1954. It was his duty to withdraw moneys from
the Union Bank of India Ltd., with which Nalinkant had an
account. Nalinkant used to leave his cheque book with a few
blank signed cheques with the respondent when he had to go
out of Ahmedabad, the place of business. The prosecution
case is that the respondent took advantage of such blank
cheques, filled them up and cashed them from the Bank and
misappropriated the amounts so received. He made no entries
about such receipts in the petty cash book maintained by the
firm.
Nalinkant was the only witness to prove that the relevant
entries in the cheques and the signatures at the back of the
cheques in token of having received the amounts from the
Bank were of the respondent. Corroboration of his statement
was sought from four documents two of which were documents
said to have been handed over to Nalinkant by the respondent
when the respondent’s ,conduct of committing breach of trust
with respect to certain items was found out on December 14,
1959. The other two documents were the respondent’s
statement as an accused in a criminal case and an
application given by the respondent in another criminal
case.
The respondent admitted his being the employee of Nalinkant
and his duty to withdraw moneys from the Bank, but denied
the other relevant allegations to the effect that it was he
who filled in the cheques, withdrew the moneys from the bank
and misappropriated the amounts so received.
The trial Court accepted the testimony of Nalinkant and con
evicted the respondent of the offence under S. 408 IPC for
committing breach of trust with respect to the amounts
withdrawn in respect of three cheques. On appeal, the High
Court acquitted the respondent. The learned Judge
considered it unsafe to rely on the evidence of the
complainant alone and held the various documents ,to be
inadmissible in evidence.
251
Before dealing with the contentions for the parties in this
Court we may mention that the State of Gujarat has
instituted five other criminal appeals, Nos. 44 to 48 of
1964 against this very respondent against his acquittal by
the High Court in five other cases in regard to his
committing breach of trust with respect to various other
amounts withdrawn by him from the Bank by filling in blank
cheques which had been left duly signed with him by
Nalinkant. The High Court’s order of acquittal in those
cases is based on the same grounds on which the order of
acquittal under appeal is based. Consequently, learned
counsel for the State and the respondent made their
submissions with reference to the judgment of the High Court
in this appeal.
Mr. Chari, for the State, has argued that the High Court was
in error in holding the four documents to be inadmissible in
evidence and in expressing the view that it was for the
prosecution to rely upon the evidence of a handwriting
expert on the question of the handwriting of a person, as
the handwriting of a person could be proved by other means.
In the present case it wag’ proved by the complainant that
the various entries in the cheques and the signatures on the
reverse of the various cheques were in the handwriting of
the respondent. The complainant was competent to speak
about them as the respondent had been his employee for a
number of years. The complainant had many an occasion to
see him write and sign.
No reason has been given by the learned Judge for differing
with the view of the trial Court that the complainant was a
reliable witness. The mere expression it is not safe to
rely upon the evidence of the complainant alone in a case
like this’ is not a sufficient ground for differing from the
trial court in its opinion about the credibility of the
witness who had deposed before it.
This statement is not factually correct also as the trial
Court had itself compared these writings and signatures with
certain other writings which had been proved to be of the
respondent. A Court is competent to compare the disputed
writing of a person with others which are admitted or proved
to be his writings. It may not be safe for a Court to
record a finding about a person’s writing in a certain
document merely on the basis of comparison, but a Court can
itself compare the writings in order to appreciate properly
the other evidence produced before it in that regard. The
opinion of a handwriting expert is also relevant in view of
s. 45 of the Evidence Act, but that too is not conclusive.
It has also been held that the sole evidence of a
handwriting expert is not normally sufficient ‘or recording
a definite finding about the writing being of a certain
person or not. It follows that it is not essential that the
handwriting expert must be examined in a case to prove or
disprove the dis
Sup. C1/66-3
252
puted writing. It was therefore not right for the learned
Judge to consider it unsafe to rely upon the evidence of the
complainant in a case like this, i.e., in a case in which no
handwriting expert had been examined in support of his
statement.
This is sufficient to set aside the order of the High Court
acquitting the respondent as the evidence of the
complainant, when believed, is sufficient to establish the
offence against the respondent. However, we shall discuss
the admissibility of the four documents as we understand
that it is really for a decision on that point that the
State preferred this appeal.
One of the documents is a slip on which, according to the
complainant, the respondent noted down the various amounts
which he had misappropriated, after he had perused the
counterfoils of the cheques. The respondent did this on
December 14, 1959, when the complainant, on checking
accounts with the statement of account received from the
Bank, found that the two did not tally and, when, on
questioning, the respondent admitted having misappropriated
some amounts. This slip of paper mentions a number of
cheques besides certain amounts received from certain
persons. With respect to the cheques, their number, the
date of the cheque or of withdrawal and the amounts,
presumably the amounts withdrawn, are noted. The three
cheques in the present case are mentioned in this list. It
may be mentioned that most of the other cheques were the
subject matter of the proceedings in the other cases which
have given rise to the other five appeals.
The learned Judge rejected this document as inadmissible as,
according to him, it did not convey any meaning and the
document could not be read along with the explanation given
by the complainant. In this, we are of opinion that the
learned Judge was in error. A statement of the complainant
about the circumstances in which this document was written
and what it purported to indicate, is admissible. What is
relevant for the case is what is ultimately proved and what
is proved would depend on the statement of the complainant.
His statement, if believed, establishes that the particulars
noted on this slip relate to sums which were admitted by the
respondent to have been misappropriated by him. The very
fact that the details of the three cheques, the amounts
drawn on which are said to have been misappropriated in this
case, find a place in this list, bears out the statement of
the complainant. The entries in this list, together with
the statement of the complainant, make out a confession of
the respondent to the effect that he had withdrawn the
amounts of the cheques mentioned in the list and that he
misappropriated them. This document therefore was
admissible in evidence. In fact, the learned Judge himself,
after observing that the document could not be admitted in
evidence even if it be in the handwriting of the respondent,
observed:
253
” that document can however be admitted as part of the
extra-judicial confession said to have been made to the
complainant.”
The other document consists of a statement written by them
respondent on December 14, 1959, subsequent to his writing
out the first document, viz., the list of the various items
misappropriated. The complainant has stated that the
respondent wrote it on being asked by the complainant to
give him a statement in writing so that he may be able to
present the same before the income-tax, authorities. He has
further deposed that it was a voluntary statement of the
respondent and that no threat or promise had been held out
to him for making that writing. The learned Judge
observed,. with respect to this document, that there was
nothing in that statement to show that it amounted to an
admission, that there was no reference to the cheques which
were the subject matter of the charge in the case and that a
general statement that he had committed breach of trust by
withdrawing the amount of the cheques did not amount to an
admission. Curiously enough, the learned Judge observed a
little later:
“Further, it amounts to an extra judicial
confession, and in a case like this it is not
safe to base a conviction on extra judicial
confession.”
It is true that there is no specification of the cheques
which were cashed by the respondent and the amounts received
and misappropriated. This vagueness of a sort is explained
by the statement of the complainant and by the proof of the
first document which gave the various amounts
misappropriated. Apart from this, the statement makes
reference to certain other facts which had a bearing on the
question in issue in the present case. In this statement
the respondent admits being entrusted from time to time with
blank cheques bearing the complainant’s signatures, his
committing breach of trust by withdrawing big amounts from
the bank by exchanging those cheques, especially during the
ten months prior to December 14, 1959 and his not crediting
the amounts of those cheques, presumably, in the accounts.
It further mentions that the respondent, had passed the
writing out of his own sweet will and not on account of any
improper pressure brought upon him. He further states that
he had given this writing willingly on his being suspected
and on one or two such cheques having been found out. In
our opinion, this document is clearly an admission of the
circumstances which have a bearing on the accusation brought
against the respondent and is thus admissible in evidence.
In fact, the admission in the document together with the
statement of the complainant can also be treated as a
confession by the respondent of his cashing the three
cheques, the subject matter of the charge in this case.
254
The learned Judge is not right in observing that it was not
safe to base a conviction on an extra-judicial confession.
The ,conviction in this case was not based merely on the
extra-judicial confession. There was the evidence of the
complainant against the respondent. The extra-judicial
confession strongly corroborated that statement. This
document too, therefore, was admissible in evidence and had
been wrongly ignored by the learned Judge.
The other two documents were considered irrelevant and
therefore inadmissible in evidence. One of them is the
statement of the respondent made under s. 342 Cr. P.C. on
September 3, 1960, in a criminal case against him. The
statements about the respondent being a clerk of the
complainant and the admissions of the respondent in this
statement about the complainant giving him cheques signed by
him so that he could, whenever necessary, draw the amounts
and about his maintaining the petty cash book and the
,circumstances in which the defalcations were found out and
about the respondent giving the writing dated December 14,
1959 admitting the defalcations, are admissions for the
purposes of the present case and as such this document was
admissible in evidence to prove the respondent’s admissions
with respect to these facts.
The fourth document was an application given by the respon-
dent on October 27, 1960 in another criminal case against
him. The document, as a whole, is not of much use to the
prosecution, but at the same time it cannot be held to be
inadmissible as it consists of certain statements which
could be used as admissions in this ,case even though the
respondent had given such explanations with respect to his
admissions as might have reduced their evidentiary ‘value.
We are of opinion that the documents handed over by the
respondent to the complainant on December 14, 1959 and the
statement of the respondent dated September 3, 1960 provide
strong corroboration to the statement of the complainant.
The result is that this appeal must succeed. We accordingly
allow the appeal, set aside the order of the High Court and
restore that of the trial Court.
Y.P.
Appeal allowed.
255