Sain Dass vs State of Punjab

S.C. Malte, J. (Oral)

Both these revisions are being disposed of by this common order because these arise out of the same judgment of conviction and sentence. These petitioners were convicted and variously sentenced for the offence punishable under Sections 467, 471 and 408 IPC, and also under Section 120B IPC.

Briefly stated, the prosecution case is as follows :

There is a primary school. The amount payable to the employee of that primary school is processed through the office of the Block Education Officer. Accused Avtar Singh was working as a clerk in that office. Accused Sain Dass was a clerk in the Government High School, Assul Uttar. In respect of the amount payable to the employees of that school, a bill used to be prepared in the office of the Block Education Officer. The preparation of bill was one of the duties of accused Avtar Singh. The prosecution case is that on 28.6.1981, a bill in question was prepared for an amount of Rs. 19,700/ and odd. As per the procedure, the said bill is required to be signed by Chanan Singh, the then Block Education Officer who was functioning as the Drawing & Disbursing Officer. On that bill, the signatures of Block Education Officer Chanan Singh were forged and it was made to appear that the said bill has been duly signed by the said Chanan Singh. On such representation, the bill was got sanctioned and ultimately on 2.9.1981 the bill was encashed through the Treasury. It may be mentioned that the said bill was in respect of reimbursement of some medical dues of some employees of the said school. The prosecution case is that those medical bills, submitted with the bill, bore the forged signature of the Block Education Officer Chanan Singh.

In so far as it pertains to accused Sain Dass, the prosecution case is that he conspired with Avtar Singh for committing the offence of the forgery, as mentioned above.

After the forgery came to notice, the complaint was filed by Block Education Officer Chanan Singh, and investigation proceeded. In the course of investigation, specimen handwriting of Avtar Singh was obtained in the presence of the Executive Magistrate. Accused Sain Dass, however, declined to give such specimen handwriting. The specimen handwriting, with admitted signatures and questioned documents, were sent to the Handwriting Expert. Briefly stated, the opinion of the Handwriting Expert was that the signatures on the questioned documents have been made by accused Avtar Singh.

In so far as it pertains to charge of conspiracy, the prosecution led the evidence of PW19 Harbans Singh who claims that on 28.2.1981 he had a chance to be in the hotel near the office where both these accused were sitting within the hearing distance. PW19 Harbans Singh further claims that accused Sain Dass then told Avtar Singh that it would be possible for him to forge a bill and get the money. His evidence further shows that on 28.6.1981 he again happened to be in the same hotel, and, as chance would have been, both these accused were also there in that hotel, and he found them sitting together for the purpose of preparation of a bill. In the context of that, it may be noted that the bill was sanctioned on 2.9.1981 and was encashed on 3.9.1981. The prosecution was not able to clarify what Harbans Singh was doing all along during this long period between the preparation of the bill and its encashment. It also appears to be quite a chance in million that Harbans Singh happened to be in the same hotel in which, allegedly, these two accused were conspiring to forge a bill. It also does not appeal to me that these accused will select a hotel for a forgery of bill. Except the evidence of Harbans Singh, there is nothing to indicate that the accused 2 Sain Dass has some part to play in the usual course of preparation of bill and its encashment. In view of that, I find that the prosecution was not successful in bringing home the charge under Section 120B IPC against Sain Dass. The lower courts were, however, of the view that since Sain Dass declined to give specimen handwriting for comparison, that points at his guilty conscious. I am unable to find force in such reasoning. In a given set of circumstances, the fact that the accused declined to give specimen handwriting for comparison with the question document, may assume significance, but that by itself would not be enough to jump to the conclusion in this case that Sain Dass was guilty of conspiracy. There should be some more material to connect him with the charge of conspiracy. It was further indicated by the prosecution that an amount of Rs. 1,000/ has been recovered from Sain Dass. Hardly that can be a good ground to jump to the conclusion that he was a beneficiary of the forgery. I thus find that the lower Courts committed error in convicting and sentencing the accused Sain Dass by applying Section 120B IPC. I, therefore acquit accused Sain Dass of all the charges levelled against him.

This takes me to the case against accused Avtar Singh. In so far as it pertains to forgery of signatures of Block Education Officer, Chanan Singh, there is evidence of Expert which shows that the questioned document was bearing the signatures of which the authorship could be attributed to accused Avtar Singh. The evidence of Expert had been challenged on the ground that such evidence should not have been accepted without proper corroboration. The counsel for the accused placed before me the case of Madan Bihari v. State of Punjab, 1977 S.C.C. (Crl.) 313. In that ruling Their Lordships have observed that the opinion of the Expert should be received with care and caution, and particularly in the case of Handwriting Expert. The principle for appreciation was that the Court should look for further corroboration besides the opinion of the Handwriting Expert. In this case, the counsel was not able to show me any material that would make the opinion of the Handwriting Expert capable of two interpretations. In so far as it pertains to the authorship on the questioned document, he has unmistakably indicated it to be made by the accused Avtar Singh. The counsel submitted that the witness Gobind Singh in whose presence the signature of Avtar Singh was obtained in the presence of the Executive Magistrate, has not been examined. He thereby wanted to hint the possibility of someone else supplying such specimen signature. I am unable to subscribe that view. The Executive Magistrate has deposed that in his presence such specimen signatures were obtained. There is no good reason to doubt his testimony in this respect. Besides that there is nothing to indicate that the investigating machinery was in any way interested in manipulating such a specimen signatures by bringing someone else in place of accused Avtar Singh.

Besides the evidence of Handwriting Expert, I find certain corroborative circumstances. These are, that accused Avtar Singh was the person entrusted with the job of preparation of bills. Further, the authority letter Ex.PW3/D shows that Avtar Singh had been authorised to receive the money while encashing the bills.

Thus, on taking into consideration the sum total of material before me, I find that lower Courts rightly arrived at a conclusion that accused Avtar Singh has committed the offence of forgery.

However, I am not able to appreciate as to how for the same incident the accused could be convicted under Section 408 IPC. Section 408 IPC pertains to the offence of criminal breach of trust committed by a clerk in respect of the property entrusted to him. In this case there was no question of entrustment. The money that was obtained in this case, was by means of forgery. It was the obtaining the money, and not entrustment of money. 1, therefore, hold that the accused Avtar Singh cannot be held guilty under Section 408 IPC, and to that extent he deserves acquittal. Besides that, he has already been acquitted of offence under Section 120B IPC.

This leaves me to consider the conviction under Sections 467 and 471 IPC. To that extent the conviction of accused Avtar Singh is maintained.

At this juncture, the counsel for Avtar Singh prayed for a lenient view. The offence in this case was committed long back in 1981. The FIR was lodged on 23.9.1981. The case was filed in the trial Court on 1.12.1984. Since then he is undergoing the ordeal of facing the prosecution at various levels. The accused is a married person having three daughters. It was submitted that the marriage of his eldest daughter is scheduled on 25.12.1996. It was submitted that if the accused is sent behind the bars, that will certainly affect adversely on the proposed relations of his daughter. The counsel further submitted that in respect of the amount misappropriated, accused Avtar Singh would compensate suitably. During the pendency of the matter, he has undergone sentence of about two months. Keeping in view all these circumstances, I reduce his sentence to already undergone on both the counts under Sections 467 and 471 IPC, and on both these counts, he is further fined Rs. 25,000/ (Twenty five thousand, in default R.I. for two years).

The counsel for the petitioner prayed time for payment of fine. He further submitted that in view of the wedding of the daughter of accused Avtar Singh, scheduled within short time some time may be granted for depositing the fine amount. Keeping in view all this, time till the end of February, 1997 is granted to accused Avtar Singh to deposit the fine, during which period the sentence in default of payment of fine shall stand suspended.

Thus, the revision filed by accused Sain Dass, No. 197 of 1992 stands allowed and he is acquitted of the charges levelled against him, while that of accused Avtar Singh, No. 198 of 1992 also stands allowed to the extent indicated above in respect offence under Sections 408 and 120B IPC, while maintaining conviction and sentence as indicated in para 11 of this judgment.