Bhoori Bai vs Hotam Singh & Others

The Judicial Magistrate First Class, Vijaypur, District Sheopur (M.P.) vide judgment dated 31.01.2008 passed in Criminal Case No.89/2003 acquitted the applicant for offence under Sections 420, 467, 468 and 471 of IPC whereas in appeal No.27/2008 filed by the State, the Additional Judge to the Court of First Additional Sessions, Judge, Sheopur (M.P.) vide judgment dated 23.07.2012 allowed the appeal and the matter was remanded to examine the handwriting expert and thereafter to decide the matter afresh. Being aggrieved with the judgment dated 23rd July, 2012 passed by the Additional Sessions Judge, the applicant, namely, Ashok Kumar has preferred the present revision.

Facts of the case, in short, are that one Gyasiram Mankele (PW-1) was working as Panchayat Evam Samaj Shiksha Sanghatak, Janpad Panchayat, Vijaypur. On receiving the complaint from various villagers, he enquired the matter and gave a report Ex.P-3 on 30.04.2002 that the applicant being the Secretary of Gram Panchayat, Pura and accused Brijmohan being the Sarpanch of that Gram Panchayat had purchased a generator diesel engine with sum of Rs.54,990/- whereas the diesel engine was of 16 HP whereas another Gram Panchayat had purchased one engine of 25 HP with a sum of Rs.41,000/-. Also interpolation was done in the amount of purchase price and the date of bill and thereafter with the help of such interpolation a voucher was prepared as if the diesel engine was purchased on 22.02.2002 whereas actually the bill was of the date 15.03.2002 and hence he pointed out the matter of cheating, forgery etc. Thereafter, on the basis of his enquiry report he had sent a written complaint Ex.P-1 which was registered as FIR Ex.P-2 and the investigation was initiated. The police officer Mr. P.M. Jain (PW-11) after registering the case took the statements of various witnesses whereas SHO Mr. Ashok Kumar Maraiya (PW-12) had prepared various seizure memos. He seized a carbon copy of the original bill dated 15.03.2002 from one Hansraj who was prosecuting the business of diesel engine in the name and style as Meena Auto Vehicles, Sheopur, seizure memo Ex.P-6 was prepared. Thereafter voucher, cash- memo and the ledger book of Gram Panchayat, Pura, were recovered from the applicant Ashok by recovery memo Ex.P-17. Again, the purchased diesel engine was recovered vide seizure memo Ex.P-10. On 29.03.2003, various documents seized from the applicant and Hansraj etc were sent to the handwriting expert for examination of interpolation. After due investigation, the charge sheet was filed before the trial court.

The prosecution did not file the report of handwriting expert before the trial court but at the fial stage of the trial, applications under Sections 216 and 311 of Cr.P.C. were moved for modification in the memo of charge and to call Mr. R.P. Pathak, the handwriting expert, for his evidence. The trial court discarded the application preferred under Section 216 Cr.P.C. but accepted the application filed under Section 311 Cr.P.C. on 04.07.2006. Thereafter, 15 to 16 opportunities were given in the period from 04.07.2006 to 18.12.2007 but the prosecution did not produce the handwriting expert, Mr. R.P. Pathak. Though his bailable warrant was served still he did not turn up before the trial court. Thereafter, the case was adjourned for two dates to hear the final arguments and on 31.01.2008, the trial court pronounced the judgment acquitting the applicant from all the charges.

Thereafter, the appellate court kept this appeal for four years and remanded the case vide judgment dated 23.07.2012.

I have heard the learned counsel for the parties at length.

The applicant has challenged the judgment passed by the appellate court on various grounds. Mainly looking to the activities of the prosecution before the trial court that order is challenged because it was an injustice to the applicant/accused who was the Panchayat Secretary. In this connection, the attention of this Court is invited by the learned counsel for the applicant that the applicant had filed a petition under Section 482 read with Section 483 of Cr.P.C. and vide order dated 21.09.2007 the Single Bench of this Court directed the Magistrate to conclude the matter as early as possible. That the petition was filed being aggrieved with the order passed by the Magistrate accepting the application under Section 311 of Cr.P.C. whereby handwriting expert Mr. R.P. Pathak was summoned.

If merits of the case is considered then from perusal of the evidence given by Gyasiram Mankeliya (PW-1) and his enquiry report Ex.P-3 it would be apparent that he pointed out the irregularities done by applicant Ashok Kumar who was the Secretary, Panchayat and one Brijlal who was the Sarpanch of Panchayat at that time. The trial court has framed the charges under Sections 420, 467, 468 and 471 of IPC relating to cheating and forgery. Accordingly, the offence of cheating was alleged in two parts. First, that applicant and Sarpanch Brijmohan purchased a diesel engine at higher cost whereas the office-bearers of other Panchayat like Raghunathpura had purchased a diesel engine of higher horse power at a lower price and second part was that the diesel engine was purchased in a sum of Rs.54,990/- whereas by interpolation amount of bill was shown in the cash book to be 59,900/- and therefore, the cheating of Rs.5,000/- was done by applicant Ashok Kumar and Sarpanch Brijmohan. So far as the first part of alleged cheating is concerned, it was for the prosecution to prove that whether the diesel engine purchased of a particular company by the applicant and Sarpanch Brijmohan was available in the sum of Rs.41000/- in the open market. If the applicant and Sarpanch Brijmohan did not observe any formality to get tenders of diesel engine or to follow the directions issued by the purchase committee then by not observing such technicalities or committing irregularities it cannot be said that the applicant and Sarpanch Brijmohan had done any cheating with the government. It was for the prosecution to show that diesel engine purchased by the applicant was of an inferior company and it was available in the open market at a lower cost. It is not established by Gyasiram Mankeliya (PW-1) as to whether Gram Panchayat Raghunathpura had purchased any superior engine of good company in the sum of Rs.41,000/-. Hence, if the applicant had purchased a diesel engine at higher cost then it cannot be said that it was a case of cheating.

If the interpolation in the price of diesel engine in the concerned bill is considered then it would be alleged that the applicant and Sarpanch Brijmohan provided a sum of Rs.5,000/- more to the vendor of diesel because it was not established by the prosecution that the payment of diesel engine was done in cash, however, that act of the applicant Ashok Kumar as well as Sarpanch Brijmohan does not fall within the purview of cheating. When a sum of Rs.65,000/- was deposited in the account of Panchayat and applicant and Sarpanch Brijmohan had usurped a sum of Rs.5,000/- by making interpolation in the price of diesel engine as mentioned in the bill then it is not a case of cheating but it could be a case of criminal breach of trust done by the public servants. Hence, prima facie, no offence under Section 420 of IPC was made out against the applicant Ashok and his companion Sarpanch Brijmohan. When the Magistrate has dismissed the application under Section 216 of Cr.P.C. then it was for the prosecution to file a petition under Section 482 of Cr.P.C. against that order so that charges could be modified but no steps were taken by the prosecution. Such point could have been raised when the appeal against acquittal was argued before the Additional Sessions Judge. The Additional Sessions Judge did not give any opinion on the order of the Magistrate relating to the dismissal of application under Section 216 of Cr.P.C. and therefore when that order has attained finality, now, the prosecution cannot be permitted to accuse the applicant for the offence under Section 409 or 406 of IPC.

So far as the forgery is concerned, it could be proved by carbon copy of the bill recovered from Hansraj (PW-6) and his salesman, namely, Ramswaroop Rawat (PW-5). The date of purchase and amount of diesel engine could be established by carbon copy of the bill recovered from Hansraj by recovery memo Ex.P-6 and by cash-book and voucher for payment it could be compared that the applicant mentioned the sale price of the diesel engine in the account book against date 22.02.2002 whereas according to the claim of Hansraj the engine was sold on 15.03.2002 and similarly when carbon copy of the bill is clear that sale price of the engine was 54,990/- then if its price is shown as Rs.59,900/- in the cash-book then the applicant was responsible for forgery as well as criminal breach of trust.

After considering the merits of the case, attitude of the prosecution and legality of the order passed by the Additional Sessions Judge is to be examined. The investigating officer did not file the carbon copy of the bill recovered from Hansraj along with the chargesheet. It is alleged that the said carbon copy was sent to the handwriting expert for his report. The original bill which was available in the record of Panchayat was not recovered. Only voucher and cash-book were recovered by the investigating officer Mr. Ashok Kumar Maraiya (PW-12) and those documents were sent to the handwriting expert for their examination. The chargesheet was filed on 14.04.2003 and the trial court has framed the charges on 04.08.2005. The period of these two years in the trial court was more than enough for filing the report of handwriting expert but it was not filed in two years. Thereafter, when entire prosecution evidence was complete, no report of handwriting expert was filed and even when the ADPO moved an application under Section 311 of Cr.P.C. no report of handwriting expert was filed before the trial court. I have gone through the entire file of the trial court and no report of handwriting expert is available on record.

Also, it should be mentioned at this stage that report of handwriting expert in the present case was not material. Interpolation in the sale-price could be done by sketching a very small line over the figure of "4" so that it could be made "9". Similarly, the date of bill as shown in the bill could be interpolated by appending 2-3 lines only to change the date and if a person had sketched 2-3 small lines on the original bill to make it interpolated then no handwriting expert can give any positive opinion that lines were done by a particular person. Handwriting can be compared by various letters as written by various persons but if interpolation was done by drawing 2-3 lines only then it is not possible for the handwriting expert to give any definite opinion that the interpolation was or was not done by a particular person or such lines could be drawn by a particular person. Hence, the matter was to be proved only by comparing the date of bill, the amount of bill in between the carbon copy of the bill and the original bill whereas the investigating officer did not recover the original bill from Gram Panchayat Pura. Hence, the report of handwriting expert was totally irrelevant in the present case.

The Single Bench of this Court vide order dated 21.09.2007 in Mcrc. No.5535/2007 has directed the trial court to complete the prosecution evidence and to expedite the disposal of the case. If order sheets of the trial court after passing the order under Section 311 of Cr.P.C. are considered then it is clear that the trial court has issued summons and thereafter bailable warrant against handwriting expert Mr. R.P. Pathak for so many times. On 29.06.2007, a request was made by the learned counsel for the defence that since handwriting expert Mr. R.P. Pathak is not appearing, prosecution evidence be closed but the trial court dismissed the application and again bailable warrant was issued against Mr. R.P. Pathak. On 21.10.2007, warning was given to the prosecution to produce the witness and in addition a bailable warrant of Rs.500/- was issued against Mr. R.P. Pathak, handwriting expert. On 22.11.2007, the trial court found that handwriting expert Mr. R.P. Pathak did not appear before it on the given date, though his bailable warrant was served. Thereafter, one more opportunity was given and case was fixed for prosecution evidence on 18.12.2007. Thereafter, on 18.12.2007, the trial court declared the prosecution evidence to be closed.

If the efforts of the Magistrate are considered then he has done his best for getting Mr. R.P. Pathak to be examined. It is duty of the SHO concerned, Superintendent of Police of the district and other officers relating to prosecution to assist the trial court properly. In such a grave case, the overt act of the prosecution as well as police authorities appears to be highly objectionable. If the ADPO has moved an application under Section 311 of Cr.P.C. then it was his duty to produce his witness before the trial court on the given dates. It is surprising that the trial court has given 14-15 dates after accepting the application under Section 311 of Cr.P.C. but the prosecution had utterly failed to produce Mr. R.P. Pathak before the trial court. If prosecution and police officers had no interest in fair prosecution of the applicant then in the light of the order dated 21.09.2007 passed by the Single Bench of this Court in Mcrc No.5535/2007 the trial court had no option except to close the evidence. Hence, in the order where the trial court has closed the evidence, no illegality or perversity is visible whereas the appellate court did not consider the efforts done by the trial court. It is not considered by the appellate court that without filing of the report of handwriting expert Mr. R.P. Pathak could not be examined. He did not take any action against the prosecution agency who did not file the report of handwriting expert before the trial court. 14. After getting the judgment of the appellate court the trial court summoned the property in the case and vide order dated 21.08.2012, in different handwriting later on, it was mentioned that Naib Nazir informed that property of the case was kept in Maalkhana at Serial No.91/2004 which indicates that report of handwriting expert was already received by the prosecution in the year 2004 and various articles like cash-book etc had been deposited in the Maalkhana in the year 2004 but the ADPO did not show the cash-book as well as carbon copy of the bill to any of the witnesses including Hansraj (PW-6) etc. It was for him to recall these witnesses to show the carbon copy of the bill and also to recall Mr. Gyasiram Mankeliya (PW-1) to prove the entries of cash-book and vouchers. If such steps had been taken then the applicant and Sarpanch Brijmohan could have been held liable for the offence of forgery. The Additional Sessions judge did not consider the position of evidence as led by the prosecution. He did not consider as to whether the report of handwriting expert was of any use in the case or not and that no such report was filed before the trial court. Under these circumstances, the Additional Sessions Judge has unnecessarily shown his latitude towards the prosecution. The opinion of handwriting expert would not be material for alleged interpolation and by examination of Mr. R.P. Pathak, fate of the case would not be changed.

It was for the prosecution to recall Gyasiram Mankeliya (PW-1), Hansraj (PW-6) and his salesman, namely, Ramswaroop Rawat (PW-5) so that the carbon copy of the bill and original entries of cash-book could be proved for interpolation of sale-price as well as date of sale. But neither the prosecution has moved any application before the trial court to re-examine these witnesses nor such prayer was made before the appellate court. The present revision is filed by applicant Ashok Kumar and no counter revision was filed by the State to get such a relief in favour of the State then in the revision filed by the accused Ashok Kumar no such order can be passed by this Court. Also, the charge-sheet was filed in the year 2003. The applicant has faced the trial and appeal for nine years and thereafter the revision was pending for five years before this Court. After 14 years of the filing of the charge-sheet it would not be appropriate to direct the accused persons to face the entire trial afresh.

There is no advantage to the prosecution in examining the handwriting expert Mr. R.P. Pathak as his opinion has no much substance in the present case where allegations are made against the accused persons that they had drawn a few lines for interpolation and the prosecution did not pray for recalling of any other witness to prove the carbon copy of the bill book and cash-book, then the judgment of the appellate court cannot be accepted which is depending upon one-sided view taken by him towards the prosecution ignoring the gross lapses of the prosecution. There was no illegality or perversity in the order passed by the Magistrate who gave 14-15 opportunities to the prosecution to examine Mr. R.P. Pathak, handwriting expert. Also, no report of handwriting expert is filed before the trial court. Hence, the examination of Mr. R.P. Pathak will now be a futile exercise which cannot be permitted in the case.

Under these circumstances, the judgment passed by the appellate court is not dependent upon the sound principles of law. The appellate court did not examine the factual position and lapses of the prosecution but remanded the case only to examine Mr. R.P. Pathak, handwriting expert whereas if Mr. Pathak is examined then it will not create any evidence before the trial court and it would be only a futile exercise. Under these circumstances, the judgment/order passed by the appellate court remanding the case for examination of Mr. R.P. Pathak, handwriting expert suffers from not only illegality but also perversity. Hence, it is a good case in which revisionary powers of this court may be exercised in favour of applicant Ashok Kumar.

Consequently, the revision filed by applicant, namely, Ashok Kumar is hereby allowed. The judgment dated 23.07.2012 passed by the appellate court remanding the matter for examination of Mr. R.P. Pathak, handwriting expert is hereby set aside. Since the remaining evidence of the prosecution does not prove the guilt of the applicant Ashok Kumar or Sarpanch Brijmohan, hence, it would not be appropriate to remand the matter so that the appeal be again decided afresh by the appellate court. Hence, the revision is hereby disposed off with the direction that the judgment passed by the appellate court is hereby set aside and the judgment passed by the trial court is affirmed.

Copy of this order be sent to the courts below for information and the record of the trial court be sent to the JMFC, Vijaypur along with the copy of this order.