Mutum B.K. Singh, J.
1. Heard Mr. A. Ghosh, learned Addl. Public Prosecutor appearing for the appellant, Mr. S. Kar Bhowmik, learned Counsel appearing for the respondent No. 1 and Mr.S. Cakraborty, learned Counsel appearing for the respondent No.2.
2. This appeal is directed against the judgment and order of acquittal dated 22-12-1999 passed by the learned Judicial o Magistrate 1st Class, Kailashahar, North Tripura in G.R. Case No. 291/1990, acquitting the respondents from the charges punishable under Section 120-B, 409, 468 and 471 of the Indian Penal Code.
3. Facts, briefly, giving rise to this appeal are that on 29-6-1990 at about 1445 (J, hours, P.W. No. 26 Sri Debatosh Datta, the Project Manager of DRDA, Kailashahar, lodged a report with the Officer In-charge, 8 Kailashahar Police Station to the effect that 5. during the period from 27-8-1988 to 5-2-1990 eight cheques of United Bank of India 3 and two cheques of Tripura Gramin Bank, which were not issued from the DRDA, m Kailashahar, were presented before the aforesaid Banks and encashed a total sum of Rs. 2,01,300/- (Rupees two lakhs one thousand and three hundred) only by forgoing his signature.
4. That, during the course of investigation the respondents were arrested and the Investigating Officer, having been found out a prima facie case, submitted charge-sheet against the respondents under Sections 468/409/420/471 of IPC. Subsequently, the charges were framed against the respondents by the learned Trial Court under Sections 120-B/380/409/419/420/468/471 of the IPC, to which the respondents pleaded not guilty and claimed to be tried. The prosecution, to substantiate the charges levelled against the respondents, examined 36 witnesses and exhibited as many as 45 documents. The respondents were examined under Section 313 of the Criminal Procedure Code after the examination of the prosecution witnesses were closed but no defence witness was produced and examined.
5. That, the learned trial Court, considering the available documentary as well as oral evidences on record, arrived at the findings that the prosecution failed to prove the charges levelled against the respondents beyond all reasonable doubt. Resultantly, the respondents were acquitted on the benefit of doubt and set them at liberty by the impugned judgment dated 22-12-1999.
Being aggrieved, the State preferred this appeal on the grounds that (I) the learned trial Court committed manifest error both in law and facts while passing the impugned order; (2) the findings of the learned trial Court is perverse and not based on facts and the evidences on record; (3) no reason has been given for not relying on the confessional statement of the accused and (4) the learned trial Court failed to appreciate the evidence of the expert regarding the factum of forgery of the cheques in question.
6. Perused the evidences on record carefully, there is no evidence on record the indicate that the cheques in question were entrusted with the respondents in their capacity of public servants or in discharge of their official duties. There was no report about the loss of cheques in question from the office of the DRDA, Kailashahar prior to 29th June, 1990. The prosecution case is that the cheques in question were never issued by the Office of the DRDA, Kailashahar, but presented these cheques by forging the signature of the Project Officer, DRDA, Kailashahar (P.W. No. 26/informant) and withdrawn a total sum of Rs. 2,61.300/-(Rupees Two lakhs one thousand and three hundred) only.
7. That, P.W. No. 26 Sri Debatosh Datta, the Project Director of DRDA, Kailashahar, during the period from middle of 1986 to middle of 1991, deposes that as per the Office norms, the Project Director or the Accounts Officer are the custodian of the Cheque Books issued by the Banks. During the period of defalcation in question, Sri Gopi Mohan Sinha, Accounts Officer was entrusted with the Cheque Books under an Office Order. The Project Director operates the Bank Accounts singly and also jointly with the Chairman of the DRDA i.e. the concerned District Magistrate. The cheque drawal authority of the Project Director does not exceed Rs. 25,000/- (Rupees Twenty five thousand) only. This witness admitted that the cheques in question were genuine cheques issued to the DRDA, Kailashahar by the concerned Banks.
8. That, P.W. No. 3, Sri Gopi Mohan Sinha, who performed the duties of Accounts Officer at the relevant time, with whom the Cheque Books were entrusted according to P.W. No. 26, deposes that after one Sri Mon Mohan Chakraborty, the Accountant left the Office, he performed the duties of Accounts Officer without formal appointment, Cheque Books were ordinarily kept in an unlocked almirah and some times with the Cashier. In May, 1990 while reconciling the statement of the Accounts maintained by the Banks, it was discovered that some payments were made against the cheques in question which were riot issued by his Office as per Cheque Issue Register. The matter was brought to the notice of the P.W. No. 26 (Project Director, DRDA, Kailashahar). He admitted that during his tenure, periodical audits were done by some organization and Chartered Accountants which were cross-checked by the Accountant General and that there was no adverse comment.
9. That, P.W. No. 12 Smti. Aparna Bhattacharjee, the Cashier of the DRDA, Kailashahar, during the relevant period, deposes that all payments of the Office were made through the Cashier, Cheque Books were with the Accountant Sri Mon Mohan Chakraborty and after his departure, with the Accounts Officer Sri Gopi Mohan Sinha, She was not aware of the place where the Cheque Books were kept by the said two officers. She had no knowledge by whom the cheques in question were stolen. The Accountant and the Accounts Officer had almirah for their exclusive use and the keys were also kept with them. One Sri Ananta Lai Chakraborty, a Group-D employee attached to the Cash Section, was entrusted with the cheques for presentation to the Banks and draw the money, in his absence, during the relevant time, one Nripendra Das, a Group-D employee, now posted at Kumarghat Block Development Office, used to send from time to time to the Banks for drawal of money by presenting the cheques as and when the Project Director desires to do so.
10. That, on assessment of the above statement of the prosecution witnesses, it is abundantly clear that the cheques in question were the genuine cheques issued by the Banks to the DRDA, Kailashahar, the Cheque Books were kept under the authority of or entrusted with the Accountant or the Accounts Officer of the DRDA, Kailashahar during the relevant period and that there was no report about the missing or stolen of the cheques in question. No prosecution witnesses had deposed that cheques in question were entrusted with the respondent at any relevant point of time. It shows that the cheques in question were never entrusted with the respondents for any purpose whatsoever.
11. That, the cheques in question marked Exhibit Nos. 20, 21, 22, 23, 24, 25, 26, 28, 30 and 31, the handwriting of P.W. No. 26 (Project Director, DRDA, Kailashahar) stamped and marked as S-1 & S-2, handwritings of respondent No. 1 stamped and marked as S-28 under the document marked Exbt. 43, together with an anonymous letter stamped Q-52 under the document marked Exbt. 6 and others were sent to the Office of the Government Examiner of Questioned Documents, Central Forensic Institute, Govt, of India, Kolkata.
12. That, according to the Experts Report dated 30th November, 1994, marked Exbt. 41, the questioned signatures appearing on the cheques in question were not the writings of the person, who wrote the writings marked S-l & S-2, the person who wrote the writings marked S-28 also wrote the writings marked Q-52. The Experts expressed their inability to give opinion in respect of other items and demanded more specimen genuine handwritings of respondent No. 1 for further examination and opinion. Tills document marked Exbt. 41 shows that the handwriting experts failed to give opinion as to whether the respondent No. 1 forged the initial of the Project Director, DRDA, Kailashahar and other writings appearing on the cheques in question. That apart, there was no evidence on record to show that the respondent No. 1 had forged the signatures of the Project Director, DRDA, Kailashahar in respect of the cheques in question.
13. That, as per the Experts Report, the ‘initials of the Project Director appearing on the cheques in question were not the writings of P.W. No. 26 (Shri Debatosh Datta, the then Project Director, DRDA, Kailashahar). However, on the contrary, P.W. No. 25, Sri Tapan Kumar Nag, the Field Supervisor of Tripura Gramin Bank, Kailashahar Branch and P.W. No. 28, Sri Ashish Choudhury, Special Assistant of the United Bank of India, Kailashahar Branch deposed that the cheques in question were passed/cleared by them after comparing the initial/signatures of the account holder appearing on the cheques in question with the Specimen Signatures of the Account Holder preserved by the Banks. Exbt. 37 is the Specimen Signature of the Project Director, Sri Debatosh Datta preserved by the United Bank of India, Kailashahar Branch and similarly the document marked Exbt. 38 is the Specimen Signature of the Project Director preserved by the Tripura Gramin Bank, Kailashahar Branch. According to these two prosecution witnesses (P.W. Nos. 25 and 28), the initials appearing on the cheques in question were/are the genuine initials of the account holder, i.e. the Project Director, DRDA, Kailashahar.
14. That, the document marked Exbt. 42 is the confessional statement or statement of the respondent No. 1 recorded under Section 164 of the Code of Criminal Procedure on 3-9 1990 by the Judicial Magistrate 1st Class, Kailashahar, North Tripura. According to this confessional statement, the respondent No. 1 put his signatures, at the request of the respondent No. 2, on six cheques at Nripendra Das. He had also put his signatures on two cheques as Ranjit Paul and on one cheque as Ananta Paul as requested by respondent No. 2. However, out of the cheques in question, nine cheques are found in the name of Nripendra Das and the prosecution has failed to explain who had signed the said three cheques. The prosecution case is that the initials/signature of the Director of DRDA, Kailashahar appearing on the cheques in question were also forged by the respondents but the respondent No. 1 nowhere mentioned in his confessional statement that he had forged the initials/ signatures of the Director of DRDA, Kailashahar in respect of the cheques in question. Besides, the respondent No. 1 retracted from the said confessional statement stating that the police had tortured him physically at the police station and asked him to make confessional statement. And that, what he had stated before the learned Magistrate were out of fear of the tortures to be inflicted by the police and in fact he made no confessional statement before the learned Magistrate. The respondent No. 1 explained the above facts at the time of his examination under Section 313 of the Code of Criminal Procedure as follows:
Question : No. 21: Have you got to state anything else?
Ans.: The allegation brought against me is completely false. After I was arrested the police personnels had tortured me physically at the P.S. and had forced me to write on paper’ and had asked me to make confessional statement. I do not know what I have stated before the Judge out of fear of the tortures to be inflicted by the police personnel.
I have made no confessional statement before the Judge.
15. That, it appears that the respondent No. 1 made the confessional statement not voluntarily but under the pressure of the police though, at the time of making confessional statement, he was not in the custody of the police. It is well established principle that the confession of the accused should be voluntary, reliable and trustworthy. The confessional statement shall be recorded in the manner laid down under Section 281 of Cr.P.C. and the provision of Section 164 of Cr.P.C. must be-complied with not only in form, but in essence and a searching inquiry shall be made from the accused as to why he wants to make confession.
16. In the instant case, the P.W. No. 31, the learned Magistrate, who recorded the confessional statement of the respondent No. 1 admitted in his statement that he did not ask how long he was detained in the police custody and how he was treated therein and whether he have also carefully gone through the confessional statement marked Exbt. 42 and of the view that the learned Magistrate made no serious attempt to find out as to why he wants to make confession. Hence, the confessional statement marked Exbt. 42 cannot be acted upon. That, it is also known principle of law that an accused can be convicted on the basis of the retracted confession if such retracted confessional statement is corroborated by any other independent witness. In the instant ease, there is no evidence on record to corroborate the statement of the respondent No. 1.
17. That, the entire prosecution case and the evidences, available on record may be sum up in the following manner in order to find out whether the prosecution has proved the case or not. The cheques in question are genuine cheques issued to the DRDA, Kailashahar. The custodian of the cheques are the Accountant or the Accounts Officer, there was no report about the missing of the cheques in question. The cheque drawing authority is the Project Director, DRDA, Kailashahar. The Cheques in question were never entrusted with the respondents in their official capacity or in any manner whatsoever. The Handwriting experts failed to give opinion about the writings appearing on the cheques in question. No evidence is available on record to prove that the initials of the Project Director appearing on the cheques in question were forged by the respondents. P.W. Nos. 26 and 28, however, stated that the initials appearing on the cheques in question are genuine initials of the Project Director, DRDA, Kailashahar. The Handwriting experts were not examined as prosecution witnesses. The confessional statement marked Exbt. 42 was subsequently retracted. The prosecution failed to produce any independent witness to corroborate the retracted confession. That, in the above backdrops, this Court is of the considered view that the prosecution has completely failed to prove the charges levelled against the respondents. The learned Trial Court has considered the evidences on record exhaustively and rightly acquitted the respondents.
18. That, for the foregoing reasons and I discussions. I do not find any ground to interfere with the impugned judgment of acquittal of the respondents dated 22-12-1999 passed by the learned Trial Court.
Resultantly, this appeal is dismissed being devoid of merit. No costs.
Send down the lower Court records immediately.