GA/86/2007 of STATE OF UTTARANCHAL Vs MOHAN SINGH

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALGovernment Appeal No. 86 of 2007

State of Uttaranchal

......... Appellant

Mohan Singh

…....Respondent

Present:

Mr. Lalit Miglani, A.G.A. for the State/appellant. Ms. Pushpa Joshi, Senior Advocate, assisted by Ms. Chetna Latwal, Advocate for the respondent.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

This appeal is preferred against the judgment and

order dated 28.05.2005 against acquittal of the respondent, recorded in Criminal Case No. 337 of 2002, by the Court of Judicial Magistrate 1[st] Class Lansdowne, District Pauri Garhwal (for short, “the case”). By the impugned judgment and order, the respondent has been acquitted of the charge under Section 409, 468 IPC.

2. Prosecution case, briefly stated is as follows:-

The appellant was Cashier posted at Sub

Treasury Office Dhumakot, District Pauri Garhwal. Gamphi Das was the Sub Treasury Officer (for short, “S.T.O.”) posted at Sub Treasury Office, Dhumakot. On 17.05.1999, Gamphi Das informed the Senior Treasury Officer, Pauri Garhwal that in the Sub Treasury Office,

Dhumakot, there is difference of Rs.4 Lakh and it was done by the respondent by showing withdrawal of 4,24,000/- instead of actual withdrawal of Rs. 24,000/-. According to this communication, Gamphi Das could not understand as to under what circumstances, the respondent did it and got the signature of Gamphi Das by playing fraud on him.

3. Thereafter, on 25.05.1999, Gamphi Das sent another communication to the Treasury Officer, Pauri Garhwal. According to it, on 17.05.1999, under threat, the respondent made cuttings on the entry of dated 18.03.1999 in the Currency Chest Book (for short, “the CCB”) and forced Gamphi Das to sign on it. On 29.05.1999, Sub Treasury Office, Dhumakot was inspected by PW1 A.S. Chauhan along with other officers/officials. report was prepared. According to this report, the CCB was filled up by Gamphi Das, the STO in his own handwriting, which he had confirmed during inspection. It was also revealed that, in fact, on 18.03.1999, total Rs.24,000/- were withdrawn from Sub Treasury Office, Dhumakot. But initially, it was shown that as if, Rs. 4,24,000/- has been withdrawn on that date. Subsequently, it was corrected to reflect that Rs.24,000/- was withdrawn, but the balance was not corrected and it was shown as Rs.19,57,000/- instead of Rs.23,57,000/-. These entries continued thereafter.

4. On the date of inspection, i.e. on 29.05.1999, According to the report, Rs.140,2,000/- should have been the balance in the Sub Treasury Office, Dhumakot, but actually Rs.10,02000/- was the balance. Subsequent to it, the matter was reported to Police. FIR was lodged against the respondent and Gamphi Das, the S.T.O., Dhumakot. The matter was investigated. After investigation, charge sheet under Sections 409 and 468 IPC was submitted against the respondent and Gamphi Das. Gamphi Das died during the trial and the case abated against him.

5. On 20.09.2001, charge under Sections 409, 469 IPC were framed against the respondent, to which, he denied and claimed trial.

6. Prosecution has produced five witnesses in support of his case, namely, PW 1 A.S. Chauhan, PW2 Manohar Singh Negi, PW3 Girish Chandra Arya, PW4 Jai Singh and PW5 Gopi Lal Rathi.

7. After prosecution evidence, the respondent was examined under Section 313 of the Code of Criminal Procedure, 1973. According to the respondent, he did not commit any embezzlement. He did not make any overwriting in the CCB. The CCB is document of the Sub Treasury Office, which is filled up by the S.T.O. The S.T.O. on daily

basis sends information to Reserve Bank of India (“RBI”), Kanpur with regard to balance in the Treasury. The S.T.O. in the instant case, never sent the communication to RBI, Kanpur after 19.03.1999. Gamphi Das had earlier also been terminated in an embezzlement matter, but subsequently, he was reinstated.

8. The court below after discussing the evidence and having considered the rival submissions, acquitted the respondent of the charge. Aggrieved by it, the State is in appeal.

9. This is an appeal against acquittal. The general principle of criminal law is that person is presumed innocent until proven guilty. In the case of the finding of the acquittal recorded in favour of an accused, this presumption further gets cemented. Interference in cases of acquittal is generally not made. The law on this point has widely been discussed by the Hon’ble Supreme Court, in the case of Guru Dutt Pathak Vs. State of Uttar Pradesh, (2021) 6 SCC116. the Hon’ble Court observed as hereunder:-

“15. In Babu v. State of Kerala [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , this Court has reiterated the principles to be followed in an appeal against acquittal under Section 378 CrPC. In paras 12 to 19, it is observed and held as under : (SCC pp. 196-199)

“12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside judgment of acquittal in case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be subject-matter of scrutiny by the appellate court. ……………………………….. ……………………………………………………………………………………………………………………………………………………”

13. In Sheo Swarup v. King Emperor [Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42 : (1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] , the Privy Council observed as under : (SCC OnLine PC : IA p. 404)

‘… the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing finding of fact arrived at by Judge who had the advantage of seeing the witnesses.’…………………………………………………......

…………………………………………………………………………. …………………………………………………………………………” 15.In Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , this Court reiterated the legal position as under : (SCC p. 432, para 42)

‘42. … (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court………………………………………………………………….. ………………………………………………………………………….

………………………………………………………………………….”

10. If two views are possible, the court in the cases of acquittal is not expected to substitute the view taken by the court below. Of course, in the cases of perverse finding or

where admissible evidence is not taken into consideration or any evidence is taken into consideration contrary to law or in the cases of misplaced burden of proof, definitely intervention in appeal against acquittal may be made.

11. PW1 A.S. Chauhan, at the relevant time, was Treasury Officer at Pauri Garhwal, to whom information was sent by the S.T.O., Dhumakot about less balance in the Sub Treasury Office, Dhumakot. In his evidence, PW1 A.S. Chauhan has proved these communications dated 25.05.1999 and 17.05.1999 made by Gamphi Das, the S.T.O., Dhumakot, which are Ex. A1 and Ex. A2 respectively. According to this witness, he inspected the Sub Treasury Office, Dhumakot and found that on 18.03.1999, initially, withdrawal of Rs.4,24,000/- was shown and accordingly, balance was recorded. But, subsequently, the withdrawal amount was corrected to reveal it as Rs.24,000/-, but the balance was not corrected. Thereby, Rs.4,00,000/- extra were reduced in the balance amount and this continued further. According to PW1 A.S. Chauhan, slip of currency note book was sent to RBI, Kanpur with copy to the Joint Director, Treasury. Gamphi Das, the S.T.O. has sent such information in the month of March, 1999, which this witness PW1 A.S. Chauhan has proved as Ex. A3. In this Ex. A3, on 18.03.1999, withdrawal of Rs.24,000/- has

been shown. PW1 A.S. Chauhan has also stated about the reports, which he made and finally the FIR lodged by him. He has also stated about the documents, which were taken into custody by the Police. At pages 6 and 7 of his statement, PW1 A.S. Chauhan has stated about entries made in the CCB on 18.03.1999. According to him, cuttings have been signed by Gamphi Das, the S.T.O., but it is in the handwriting of the respondent. At other places also PW1 A.S.Chauhan has stated about the handwriting and signatures of the respondent. He has proved various other documents.

12. PW2 Manohar Singh Negi and PW3 Girish Chandra Arya had accompanied PW1 A.S. Chauhan, when Sub Treasury Office, Dhumakot was inspected. Both have stated that in the Sub Treasury Office, Dhumakot, there were Rs.400,000/- less balance. Both these witnesses have stated that the CCB was kept in double lock, which could be opened with two keys, one was with the Gamphi Das, the S.T.O. and another with the Cashier.

13. PW4 Jai Singh has been declared hostile. He has been cross examined by the prosecution as well as by the respondent.

14. PW5 Gopi Lal Rathi is the Investigating Officer. In this matter, according to this witness, the investigation was

carried out by other officers also. He proved the charge sheet, site plan and other documents. In his cross examination, PW5 Gopi Lal Rathi tells that he did not get the handwriting of the respondent examined by any handwriting expert, with regard to entries made in the CCB.

15. Learned counsel for the State would submit that admittedly, the CCB was to be kept in double lock, having two keys, one with the respondent and another with the Gamphi Das, the STO. It is argued that the CCB could not have been accessed by Gamphi Das, the S.T.O without assistance of the respondent. Learned counsel raised the following points also in his submission:-

(i)On 18.03.1999, initially, the transaction was wrongly entered. Subsequently, the withdrawal amount was corrected, but the balance was never corrected. On 18.03.1999, the balance should have been Rs.23,57,000/-, but it was shown as Rs. 19,57,000/- and this continued on 19.03.1999, and thereafter. wrongly entered. Subsequently, the withdrawal amount was corrected, but the balance was never corrected. On 18.03.1999, the balance should have been Rs.23,57,000/-, but it was shown as Rs. 19,57,000/- and this continued on 19.03.1999, and thereafter.

(ii)All the witnesses have stated that the money in Sub Treasury Office is given on the demand of the S.T.O. and the S.T.O. releases money on the demand of Cashier. in Sub Treasury Office is given on the demand of the S.T.O. and the S.T.O. releases money on the demand of Cashier.

(iii)During inquiry, the respondent blamed Gamphi Das, the S.T.O. and Gamphi Das blamed the respondent for embezzlement in the Sub Treasury Office. Gamphi Das, the S.T.O. and Gamphi Das blamed the respondent for embezzlement in the Sub Treasury Office.

16. Learned State counsel would submit that all these aspects were not examined by the court below, while recording the finding of acquittal. Therefore, it is submitted that the finding is not in accordance with law. The prosecution has been able to prove its case beyond reasonable doubt. The respondent is liable to be convicted of the charge. Accordingly, the appeal is liable to be allowed.

17. On the other hand, learned senior counsel for the respondent would submit that this is an appeal against acquittal and interference may not be made unless the finding recorded is perverse. It is argued that, in fact, the trial court considered all these aspects of the matter and recorded finding, which is in accordance with law. Therefore, it is submitted that no interference is warranted and the appeal is liable to be dismissed.

On the other hand, learned senior counsel for the

18. Learned senior counsel appearing for the respondent has also made reference to the evidence to argue that, in fact, in the CCB, the entries were made as per the rules by the S.T.O. During inspection of the Sub Treasury Office, Dhumakot, PW1 A.S. Chauhan was told by Ghamphi

Das, the S.T.O. himself that all the entries in the CCB were made by him. Therefore, it is argued that the respondent may not be held liable and it cannot be presumed that the entries were made by the respondent under the conspiracy with any other person.

19. It is true that according to the procedure, as proved by the witnesses, the CCB is kept in the double lock. It is also proved that the double lock cannot be opened without operation of two keys, which remains with both Gamphi Das, the S.T.O. and the Cashier. Therefore, unless the keys, which are with the Cashier are put to use, the S.T.O. could not have accessed the CCB. But, merely on this basis can the respondent, who was the Cashier at the relevant time at Sub Treasury Office, Dhumakot be convicted of the offences under Section 468 and 409 IPC? Can without any other evidence, the respondent may be held guilty for misappropriation of the funds or for forgery in the Accounts Book, based on the presumption that the CCB cannot be accessed without assistance of the respondent?

20. Learned court below discussed the evidence and found that the prosecution utterly failed to prove that the cutting or handwriting or signatures in the CCB were in the handwriting of the respondent. Learned trial court also

observed that the prosecution has utterly failed to prove that the money was entrusted with the respondent.

21. Rule 79 and other Rules of the Sub Treasury Manual have been referred to by the court below. In fact, in page 15, para 2 onwards of the judgment, discussion has been made with regard to handwriting or overwriting in the CCB.

22. PW1 A.S.Chauhan himself has admitted that the CCB is filled up by the S.T.O. He has admitted that there is overwriting on the entry dated 18.03.1999 in the CCB. He has also admitted that the cash book is maintained by the Cashier and the account book is maintained by the Accountant. According to PW1 A.S.Chauhan, there has been no overwriting or cutting in the cash book as well as in the account book. PW1 A.S.Chauhan has categorically stated that the CCB was filled up by Gamphi Das, the S.T.O., after 19.03.1999 continuously. He has also proved that monthly statements were sent by Gamphi Das to RBI, Kanpur and copy thereof to the Joint Director, Treasury. Ex. A3 is such document, which has been proved by PW1 A.S.Chauhan. It reveals that on 18.03.1999, withdrawal of Rs.24,000/- has been shown in this Ex. A3, with balance in the CCB of Rs.23,57,000/-.

23. Before any further any discussion is made with regard to the evidence adduced by the prosecution, it would be apt to examine as to how this case came in light. There are two communications, which were made by Gamphi Das, the S.T.O., which have been proved by PW1 A.S.Chauhan, the Treasury Officer, Pauri Garhwal. The first communication is dated 17.05.1999. It is Ex. A2, which is very important. According to it, on 15.05.1999, Gamphi Das came to know that there is 4 lakh less cash balance in the Sub Treasury Office, Dhumakot. According to this communication, this was done by the respondent by showing withdrawal of Rs.4,24,000/- instead of actual withdrawal of Rs.24,000/-. According to this communication Ex. A2, Gamphi Das, the S.T.O., could not understand as to how and under what circumstances, the respondent could do such an act and procured the signatures of Gamphi Das by playing fraud. One thing is clear from this communication, Ex. A2 that on 15.05.1999, there were signatures of Gamphi Das, the S.T.O., in the CCB. The another communication Ex. A1, in fact, falsifies and doubts the credibility of Gamphi Das, the S.T.O. According to this communication dated 25.05.1999 of Gamphi Das, the S.T.O., which is Ex. A1, his signatures on the CCB dated 18.03.1999 were procured by the respondent on

17.05.1999, after locking the Treasury and it was done out of fear by Gamphi Das.

24. As noted, in his communication dated 15.05.1999, Gamphi Das, the S.T.O. had informed that his signatures were obtained in the CCB by playing fraud on him by the respondent. Which categorically means that on 15.05.1999, there were signatures of Gamphi Das, the S.T.O., in the CCB. Whereas, in his another communication dated 25.05.1999, Gamphi Das, the S.T.O., would inform the Treasury Officer, Pauri Garhwal that his signatures in the CCB, on the entry dated 18.03.1999, were obtained by force and that was so done on 17.05.1999. It doubts the credibility of both the communications Ex. A1 and Ex. A2 made by Gamphi Das, the S.T.O., .

25. There is another aspect of the matter. If on 17.05.1999, the signatures of Gamphi Das, the S.T.O., were obtained by the respondent by force, why did Gamphi Das, the S.T.O., wait for another one week to communicate this fact to the Treasury Officer, Pauri Garhwal on 25.05.1999. Why not immediately, on the same day, he informed it to the senior officers or to the Police. This also doubts the credibility of these two communications. The fact remains that in the Sub Treasury Office, Dhumakot, Rs.4,00,000/- cash was missing. It was done on 18.03.1999. It was done

by making corrections in the CCB. But, on that date, cash book and account book were not so changed.

26. PW1 A.S. Chauhan, inspected the Sub Treasury Office, Dhumakot on 29.05.1999. In his report, which is on record, it is recorded that the entries in the CCB were made by Gamphi Das, the S.T.O. In para 2 of this report, it is categorically recorded that the CCB was filled up in the handwriting of Gamphi Das, the S.T.O., and Gamphi Das also confirmed this fact. In his statement, PW1 A.S. Chauhan has also confirmed these facts. He would also tell that even after 18.03.1999, all the entries in the CCB were made by Gamphi Das, the S.T.O. He also admits that in cash book and accounts book, no overwriting was ever made by the Cashier and Accountant, respectively.

27. At one stage, though PW1 A.S. Chauhan has stated that the cutting and overwriting in the CCB is in the handwriting of the respondent, which was signed by the Gamphi Das, the S.T.O. But, the question for consideration is as to how could PW1 A.S. Chauhan say so? In his statement, he also tells that Gamphi Das or the respondent were never posted with him. How did he identify the handwriting? In fact, in page 16, bottom lines in the impugned judgment and order, the court below has recorded the finding, after comparing the signatures of the

respondent in the cash book maintained by him and in the CCB and observed that both the handwritings are not the same.

28. The CCB is before this Court. In fact, on 18.03.1999, in the balance, the correction is made on the extreme right and it is only in letters. How could one identify it, who is not acquainted with the handwriting of the author? How could PW1 A.S. Chauhan say that the overwriting or cutting is made by the respondent when respondent was never remained posted with him? The fact remains that there is no handwriting expert’s report. Therefore, merely on the basis of the statement of PW1 A.S. Chauhan made in his examination before the court that the cutting and overwriting in the CCB is made by the respondent, it cannot be said that the prosecution has been able to prove that cutting or overwriting in the CCB is made by the respondent.

29. On the other hand, as stated hereinbefore, in the inspection note dated 29.05.1999, made by PW1 A.S. Chauhan, it is recorded that the CCB was maintained and filled up in the handwriting of Gamphi Das, the S.T.O., and Gamphi Das also confirmed this fact.

30. In view of the foregoing discussion, this Court is of the view that the prosecution, in fact, has not been able to prove that the forgery in the CCB was made by the respondent. The prosecution has utterly failed to prove the charge under Section 468 IPC against the respondent and the court below has rightly held so.

31. Insofar as, the offence under Section 409 IPC is concerned, the court below, in quite detail discussed the working of the Treasury and made reference to various Rules of the Sub Treasury Manual, which provides that money of the CCB is the joint responsibility.

32. The court below held that possession of one key of the double lock with the respondent is merely procedural check. It is submitted that the cash in the Treasury is given on demand made by the S.T.O. It remains in the custody of S.T.O. It is disbursed as per the demand of the Cashier and it is so disbursed by the S.T.O. The entries in the CCB is made by the S.T.O. The other registers maintained by the Cashier and Accountant in the instant case bear no overwriting or corrections. Only correction is made in the CCB. Merely because, one key of the double lock was with the respondent, he cannot be presumed to have committed offence under Section 409 IPC, when it is specific case that the entrustment was made with the S.T.O.

33. In view of the foregoing discussion, this Court is of the view that prosecution has failed to prove its case against the respondent. The impugned judgment and order is in accordance with law and the appeal deserves to be dismissed.

34. The appeal is dismissed.

Jitendra

(Ravindra Maithani, J.)28.12.2021