{"id":156095,"date":"2008-12-26T00:00:00","date_gmt":"2008-12-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bodh-raj-vs-unknown-on-26-december-2008"},"modified":"2017-05-08T12:55:44","modified_gmt":"2017-05-08T07:25:44","slug":"bodh-raj-vs-unknown-on-26-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bodh-raj-vs-unknown-on-26-december-2008","title":{"rendered":"Bodh Raj vs Unknown on 26 December, 2008"},"content":{"rendered":"<div class=\"docsource_main\">Jammu High Court<\/div>\n<div class=\"doc_title\">Bodh Raj vs Unknown on 26 December, 2008<\/div>\n<pre>       \n\n  \n\n  \n\n \n\n \n \n IN THE HIGH COURT OF JAMMU &amp; KASHMIR AT JAMMU            \nCriminal Appeal No. 1 OF 2007 AND Criminal Appeal No. 17 OF 2006   \nBodh Raj \nPetitioner\nState &amp; Ors \nRespondent  \n!Mr. D.S. Saini, Advocate\n^Mr. P.C. Sharma, AAG  \n\nHon'ble Mr.Justice Vinod Kumar Gupta \n DATE: 26\/12\/2008 \n:J U D G M E N T :\n<\/pre>\n<p>Accused appellant Bodh Raj is a teacher and in the month of<br \/>\nSeptember 1976 he made a representation to the District Education<br \/>\nOfficer, Jammu for his transfer from central School Kanyala to any<br \/>\nother School in Jammu proper. He was transferred to Govt. Higher<br \/>\nSchool Gole Gujral vide order No. 4450-54 dated 18.10.1976 under<br \/>\nthe orders of District Education Officer. In compliance with this<br \/>\ntransfer order, the accused-appellant joined in Govt. High School<br \/>\nGole Gujral on 23.10.1976. Subsequently he was given the charge<br \/>\nof clerk also and was authorized to draw salary and other bills by the<\/p>\n<p>Headmaster vide communication dated 15.2.1977 from the<br \/>\nGovernment Treasury, Town Hall Jammu. The Headmaster of the<br \/>\nschool was the Drawing and Disbursing Officer of the Institution.<br \/>\nDuring the period from August 1978 to August 1980, it is alleged<br \/>\nthat the accused-appellant prepared 25 forged bills and drew<br \/>\ndifferent amounts from the Treasury and misappropriated that<br \/>\namount. This withdrawal of the amount after preparing forged<br \/>\ndocuments was detected when one Shri S.N. Dhar received a letter<br \/>\nfrom Accountant General, Srinagar to deposit an amount of<br \/>\nRs. 3000\/- drawn by the Headmaster of Govt. High School Gole<br \/>\nGujral during 1978 and debited in his account. After verification of<br \/>\nthe record, this whole affair was detected. Report was lodged with<br \/>\npolice Station Domana, Jammu by the Headmaster Govt. High<br \/>\nSchool Gole Gujral on 17.12.1980.\n<\/p>\n<p>2. On this report, FIR No. 168\/80 under sections 420\/471 RPC<br \/>\nwas registered with the Police Station Domana. During<br \/>\ninvestigation it was found that the accused-appellant had prepared<br \/>\n25 fraudulent bills during 1978 to 1980 and has withdrawn an<br \/>\namount of Rs. 67,950\/- from the Treasury and misappropriated the<br \/>\nsame. The investigation was subsequently handed over to the Crime<br \/>\nBranch and after completion of the investigation 8 different charge<br \/>\nsheets(challans) were produced in the court of law. After trial of all<br \/>\nthese cases, the accused was acquitted of charges in six cases, but<br \/>\nwas convicted in two cases in challan Nos. 124 and 128 under<\/p>\n<p>sections 420\/465\/471 RPC and sentenced him to undergo simple<br \/>\nimprisonment of six months and a fine of Rs. 1000\/- under section<br \/>\n420 RPC, simple imprisonment for six months for the commission<br \/>\nof offence under section 465 RPC and a sentence of simple<br \/>\nimprisonment for six months for the commission of offence under<br \/>\nsection 471 RPC in both cases vide orders\/judgment dated<br \/>\n11.10.2007 and 09.01.2007. Sentences were to run concurrently.\n<\/p>\n<p>3. The learned trial court convicted and sentenced the accusedappellant<br \/>\nin both cases on the ground that it stands proved that the<br \/>\naccused prepared forged bills in both the cases under the signatures<br \/>\nof Drawing and Disbursing Officer and drew the amount of the bills<br \/>\nfrom the Treasury and misappropriated the same. Aggrieved by<br \/>\nthese impugned orders\/judgments, the accused appellant has<br \/>\npreferred these two appeals.\n<\/p>\n<p>4. I have heard the learned counsel for the parties. I have also<br \/>\nperused the record on the files.\n<\/p>\n<p>5. Both these appeals are taken up together because the facts in<br \/>\nthe case are identical and same question of law is involved in both<br \/>\nthe appeals.\n<\/p>\n<p>6. Mr. D.S. Saini, Advocate appearing for the accused-appellant,<br \/>\nhas submitted that the evidence relied upon by the learned trial court<br \/>\nin the case is inadmissible because the statements of the witnesses<br \/>\nhave been transferred from one file and the accused has not been<br \/>\nafforded any opportunity for cross-examination in other cases and<\/p>\n<p>thereby accused is prejudiced. The handwriting and signatures of<br \/>\nthe accused on the bills have not been proved by the prosecution.<br \/>\nHe has further submitted that the statement of the accused under<br \/>\nsection 342 Cr.P.C. has not been recorded properly inasmuch as all<br \/>\nthe accusations found in the prosecution evidence were not put to the<br \/>\naccused. He has further submitted that Investigating Officer has not<br \/>\nbeen produced in the case which has caused prejudice to the<br \/>\naccused\/appellant. On the other hand, Mr. P.C. Sharma, learned<br \/>\nAdditional Advocate General, has submitted that the prosecution has<br \/>\nsucceeded in proving its case and the evidence of the witnesses in<br \/>\nthe case is admissible under sections 47 and 73 of the J &amp; K<br \/>\nEvidence Act in respect of handwriting and signatures of a person.<br \/>\nHe has further submitted that under section 510 Cr.P.C. the<br \/>\ncertificate of handwriting expert is admissible without examination<br \/>\nof the expert.\n<\/p>\n<p>7. It is admitted by the trial court itself that the evidence in these<br \/>\ncases has been recorded in one case only and the copies of the same<br \/>\nhave been transferred to the other cases and the entire record has<br \/>\nbeen seized in one case only and there is no documentary evidence<br \/>\non other files. He has admitted that this is the wrong procedure<br \/>\nbecause there is no provision in the Code of Criminal Procedure for<br \/>\nclubbing of the cases. At page 4 of the judgment, the trial court has<br \/>\nobserved as under:-\n<\/p>\n<p>&#8220;Complicity of accused in commission of<br \/>\noffences under section 420\/471 RPC was  <\/p>\n<p>established, and the transactions were split, into<br \/>\nseven cases, in terms of section 234 Cr.P.C.<br \/>\nCharges were not only split, but different cases<br \/>\nwere even registered against the accused, in<br \/>\nrespect of different fraudulent with drawls, one<br \/>\ncould understand the necessity of splitting the<br \/>\ncases but registration of different reports was not<br \/>\nneeded at all, as during the investigation of case<br \/>\nFIR No. 168\/80, different fraudulent withdrawals<br \/>\nwere unearthed, so even a single FIR could fulfill<br \/>\nthe procedural requirement. Anyway, it is no use<br \/>\nto comment upon it now. Instant case is the end<br \/>\nresult of investigation in case FIR No. 98\/1984,<br \/>\nand this judgment shall be limited to this case<br \/>\nonly. Ordinarily, convenient course would have<br \/>\nbeen to dispose off all the seven cases through a<br \/>\nsingle judgment, because all these cases have<br \/>\nemanated from case FIR 168\/80, and evidence<br \/>\nhas also been recorded in one case only though<br \/>\nplaced on separate files, and the entire seized<br \/>\nrecord, and the other documentary evidence lies<br \/>\non one case file pertaining to case FIR No.<br \/>\n168\/80, but that would again be a wrong track as<br \/>\nin criminal procedure there is no provision for<br \/>\nclubbing of cases. So, each case has to be taken<br \/>\nup individually for decision though it would be<br \/>\nhighly inconvenient. Since record lies on one file<br \/>\nonly, so reference to the record where ever<br \/>\ninevitable in this judgment would mean reference<br \/>\nto record on File No. 130\/Session which relates<br \/>\nto case FIR No. 168\/80, and so it would be the<br \/>\nmother file, for rest of the files including this<br \/>\none.&#8221;\n<\/p>\n<p>8. Although the learned trial court has admitted that<br \/>\nthe wrong procedure has been adopted in<br \/>\nsplitting the cases by the investigation and<br \/>\nsubsequently tried by the court by clubbing<br \/>\nthose cases as there is no such provisions<br \/>\nevidence in the Code of Criminal Procedure<br \/>\nitself. He has also admitted that the evidence<\/p>\n<p>oral as well as documentary is in File No.<br \/>\n130\/Session relating to the case FIR No. 168\/80.<br \/>\nBy doing so, in my opinion, this is an illegality<br \/>\nwhich has caused serious prejudice to the<br \/>\naccused-appellant because he has been convicted<br \/>\nin two cases where the evidence has been taken<br \/>\nfrom other file in which the accused has been<br \/>\nacquitted of the charge.\n<\/p>\n<p>9. In order to substantiate the charges against the<br \/>\naccused, the prosecution has examined Bank<br \/>\nManager Bal Krishan Gupta PW, Kuldip Raj<br \/>\nSharma PW a bank employee, Paras Ram, Har<br \/>\nDutt, Sharma and Bodh Raj PWs employees of<br \/>\ntreasury proving that the accused-appellant had<br \/>\nbeen withdrawing amount of the treasury. The<br \/>\nprosecution has also examined Gullu Ram and<br \/>\nSom Nath Dhar PWs, who were teachers posted<br \/>\nin the School and amount of Rs.2500\/- and Rs.<br \/>\n3000\/- had been withdrawn from their G.P Fund<br \/>\naccount without their applications. Gyan Chand,<br \/>\nI.D.Soni and Gurbachan Lal PWs are witnesses<br \/>\nto the seizure of record. The depositions of these<br \/>\nwitnesses do not connect the accused-appellant<br \/>\nwith the commission of offence even remotely.\n<\/p>\n<p>10. The other evidence on the mother file is the<br \/>\ndepositions of Yogya Dutt PW and Kanwarjeet<br \/>\nSingh PW, who were Head Masters at the<br \/>\nrelevant time and as Head Master they were the<br \/>\nDrawing and Disbursing Officers. They have<br \/>\ndeposed that they have not signed the withdrawal<br \/>\nbills and the same are forged or fraudulent. The<br \/>\nevidence relied upon by the learned trial court is<br \/>\nthe statement of PW Yagya Dutt, the then<br \/>\nHeadmaster Govt. High School Gole Gujral. He<br \/>\nhas also deposed that he is acquainted with the<br \/>\nsignatures of the accused. The accused has<br \/>\nprepared and signed the bills in dispute. He has<br \/>\nfurther submitted that the accused-appellant has<br \/>\nforged his (witness) signatures on these bills. He<br \/>\nhas admitted that he has not signed any bill but<br \/>\nthe accused has forged his signatures.\n<\/p>\n<p>11. The learned trial court has held that this<br \/>\nstatement of the Yogya Dutt PW is admissible in<br \/>\nevidence because it fulfills the requirements of<br \/>\nsection 47 of the Jammu and Kashmir Evidence<br \/>\nAct. In taking this view the learned trial court<br \/>\nwas not correct because section 47 is not<br \/>\napplicable and the opinion given by the witness<\/p>\n<p>is not admissible under section 47 of the Jammu<br \/>\nand Kashmir Evidence Act, section 47 reads as<br \/>\nunder:-\n<\/p>\n<p>&#8220;47.Opinion as to handwriting, when relevant.<br \/>\nWhen the Court has to form an opinion as to the person<br \/>\nby whom any document was written or signed, the<br \/>\nopinion of any person acquainted with the handwriting<br \/>\nof the person by whom it is supposed to be written or<br \/>\nsigned that it was or was not written or signed by that<br \/>\nperson, is a relevant fact.&#8221;\n<\/p>\n<p>From the plain reading of this section, it is clear that the opinion of<br \/>\nthe person acquainted with the handwriting of the person by whom it<br \/>\nis supposed to be written or signed is admissible if the said person is<br \/>\nwell conversant and acquainted with the handwriting of said person.<br \/>\nIn this case the signatures and handwriting of the accused on the<br \/>\nforged bills is not in dispute. The allegation against the accused is<br \/>\nthat he has forged the signatures of Drawing and Disabusing Officer<br \/>\nof the institution namely, Headmaster of that school. Headmaster<br \/>\nYagya Dutt PW has deposed that he has not signed those bills. He<br \/>\nhas exceeded in deposing that these signatures have been forged by<br \/>\nthe accused. This evidence of the witness is not admissible because<br \/>\nhe is neither expert in forming any opinion that the signatures have<br \/>\nbeen forged by the accused on the disputed bills nor he is acquainted<br \/>\nwith the forged signatures of the accused-appellant of different<br \/>\npersons including himself. He can only state that he has not signed<br \/>\nthose bills. Heavy burden lies on the prosecution to prove that the<br \/>\naccused has forged those signatures.\n<\/p>\n<p>12. Section 47 of the J&amp;K Evidence Act makes<br \/>\nrelevant the opinion of ordinary witness in<br \/>\nabsence of opinion of expert and the same is<br \/>\nadmissible sometimes in respect of handwriting<br \/>\nor signature. The opinion of expert is also<br \/>\nrelevant under section 45. In the instant case, the<br \/>\nhandwriting expert has not been examined<br \/>\nalthough his report was on record. The learned<br \/>\ntrial counsel has held that the report of the expert<br \/>\ncannot be admitted in evidence on the ground<br \/>\nthat the expert has not been examined and crossexamined<br \/>\non account of his non production.\n<\/p>\n<p>13. The contention of learned AAG that the report of<br \/>\nthe handwriting expert although not proved<br \/>\nduring the trial is admissible in evidence under<br \/>\nsection 510 Cr.P.C. In my opinion, this<br \/>\ncontention of the learned counsel for the State is<br \/>\ndevoid of any force. Section 510 reads as under:-<br \/>\n&#8220;510. Report of Chemical Examiner.\n<\/p>\n<p>i. Any document purporting to be a report under the<br \/>\nhand of any Chemical Examiner or Assistant<br \/>\nChemical Examiner to Government or the Chief<br \/>\nInspector of Explosives or the Director of Finer Print<br \/>\nBureau or an officer of the Mint, upon any matter or<br \/>\nthing duly submitted to him for examination or<br \/>\nanalysis and report in the course of any proceeding<br \/>\nunder this Code, may be used as evidence in any<br \/>\ninquiry trial or other proceeding under this Code.\n<\/p>\n<p>ii. The Court may, if it thinks fit, and shall, on the<br \/>\napplication of the prosecution or the accused,<br \/>\nsummon and examine any such person as to the<br \/>\nsubject-matter of his report.&#8221;\n<\/p>\n<p>This provision does not cover the case in hand. Sub section<br \/>\n(2) provides that the witness be summoned on the<br \/>\napplication of prosecution. This provision can be invoked<br \/>\nonly if the prosecution gives a statement in the court for<br \/>\ntaking on record the report of the Chemical examiner or the<br \/>\nauthority mentioned in the provisions itself. There is<br \/>\nnothing on record to show that the prosecution ever made a<br \/>\nrequest to the trial court for taking into consideration the<br \/>\nreport of handwriting expert. This report is inadmissible in<br \/>\nevidence unless it is proved that this report is covered under<br \/>\nthis provision. Even otherwise the report of the handwriting<br \/>\nexpert is a weak evidence cannot be considered conclusive<br \/>\nin arriving at a final conclusion without any corroborative<br \/>\nevidence. As stated above there is no other evidence on the<br \/>\nfile to prove this fact.\n<\/p>\n<p>14. Now the question arises in the case as to whether<br \/>\nthe opinion of Yagya Dutt PW that the accusedappellant<br \/>\nhas forged his signatures is admissible<br \/>\nin evidence. It is a settled law that opinion<br \/>\nevidence is hearsay and becomes relevant only if<br \/>\nthe condition laid in section 47 of the Evidence<br \/>\nAct is proved. Reliance is placed on case Rahim<\/p>\n<p>Khan Vs. Khurshid Ahmed, AIR 1975 SC 290.<br \/>\nThe opinion given by the witness is that the<br \/>\naccused-appellant has forged the signatures of<br \/>\nsaid witness. As stated earlier that the witness is<br \/>\nnot well conversant with the forged signatures<br \/>\nmade by the accused. He has not stated on what<br \/>\nbasis the witness has formed this opinion and<br \/>\nhow he is conversant with the signatures alleged<br \/>\nto have been forged by the accused-appellant.<br \/>\nThus this opinion is irrelevant and is inadmissible<br \/>\nin evidence. It is now well settled that the<br \/>\nopinion of the expert or person shall be received<br \/>\nwith great case caution and alone cannot be made<br \/>\nbasis for conviction of an accused. It can be<br \/>\nrelied upon when supported by other evidence. It<br \/>\nis unsafe to base a conviction solely on the<br \/>\nopinion without substantial corroboration. The<br \/>\nlearned trial court has also taken aid of section 73<br \/>\nof the Jammu and Kashmir Evidence Act which<br \/>\npermits the court to comparison of<br \/>\nsignatures\/writing etc of a person with the<br \/>\nwriting\/signatures of that person as stated above.<br \/>\nThis provision would also not help the<br \/>\nprosecution in probing its case. There is no<\/p>\n<p>admitted forged signatures of Headmaster by the<br \/>\naccused which are admitted and as such the same<br \/>\ncannot be compared with the forged signatures<br \/>\non the bills. Further also the court cannot come<br \/>\nto the conclusion that the accused has forged<br \/>\nthose signatures only on the basis of comparison<br \/>\nof its own without any other evidence on record.\n<\/p>\n<p>15. The learned trial court has also taken aid of<br \/>\nsection 73 of the Jammu and Kashmir Evidence<br \/>\nAct which permits the court to compare the<br \/>\ndisputed signatures\/writing etc. of a person with<br \/>\nthe admitted writing\/signature of that person.<br \/>\nThis provision would also not help the<br \/>\nprosecution in proving its case. The trial court<br \/>\nhas not taken the signatures from the accused like<br \/>\nforged one in its presence and thereby compared<br \/>\nthe same with the disputed forged signature. The<br \/>\ntrial court has also not taken the signatures of<br \/>\nHead Master, witness Yogya Dutt, the Drawing<br \/>\nand Disbursing Officer to see as to whether those<br \/>\nsignatures were genuine of forged one. There is<br \/>\nno admitted forged signatures of Headmaster by<br \/>\nthe accused and as such the same cannot be<br \/>\ncompared with the forged signatures on the bills.\n<\/p>\n<p>Further also the court cannot come to the<br \/>\nconclusion that the accused has forged those<br \/>\nsignatures only on the basis of comparison of its<br \/>\nown without and other evidence on record. The<br \/>\nconviction cannot be bases solely on the evidence<br \/>\nof comparison of signature by court.\n<\/p>\n<p>16. There is set procedure and norms for withdrawal<br \/>\nof any amount by any institution from the<br \/>\nTreasury. The bills can be prepared by any<br \/>\nperson but the amount is withdrawn from the<br \/>\nTreasury only on the authority and signatures of<br \/>\nDrawing and Disbursing Officer. After<br \/>\nwithdrawal of the amount from the Treasury the<br \/>\nsaid amount is disbursed to the concerned by the<br \/>\nDisbursing Officer. In the instant<br \/>\n( Vinod Kumar Gupta)<br \/>\nJudge<br \/>\nJammu<br \/>\n26.12.2008<br \/>\nChuni\/jr<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jammu High Court Bodh Raj vs Unknown on 26 December, 2008 IN THE HIGH COURT OF JAMMU &amp; KASHMIR AT JAMMU Criminal Appeal No. 1 OF 2007 AND Criminal Appeal No. 17 OF 2006 Bodh Raj Petitioner State &amp; Ors Respondent !Mr. D.S. Saini, Advocate ^Mr. P.C. Sharma, AAG Hon&#8217;ble Mr.Justice Vinod Kumar Gupta DATE: [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-156095","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Bodh Raj vs Unknown on 26 December, 2008 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bodh-raj-vs-unknown-on-26-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bodh Raj vs Unknown on 26 December, 2008 - Free Judgements of Supreme Court &amp; 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