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Monday, July 25, 2016

Sections 409, 467, 468, 471, 120-B and 420 IPC and under Section 13(2) of the Prevention of Corruption Act. - During the course of investigation, specimen signatures of the witnesses PW-5 (Nathu Ram) and PW-7 (Kirpu) were obtained before the executive magistrate, Arki and sent to the handwriting expert and fingerprint bureau. On comparison of the specimen signatures of the witnesses with the disputed signatures and also the admitted signatures of the appellant-Sukh Ram, in his report (Ex.PW20/C-1 to Ex.PW20/C-3), PW-20 opined that the disputed signatures in the loan application and other documents were not that of witnesses (PW-5 Nathu Ram and PW-7 Kirpu) but they tallied with the signature of appellant-Sukh Ram. Trial court discarded the opinion evidence of PW-20 on the ground that the executive magistrate was not the competent authority before whom the fingerprint and handwriting of the witnesses could be taken as no proceeding was pending before the executive magistrate.= During the relevant point of time i.e. 1983-1986, there was a government scheme for providing loans at the cheaper interest rates to poor persons living below the poverty line to enable them to purchase sheeps, buffalos, horses and for running small businesses and for development of land etc. Upon recommendation of the Block Development Officer (BDO), the bank disbursed these loans to the beneficiaries. Appellant-Sukh Ram was a Gram Sewak, Navgaon under Arki Sub-Division during said period, 1983 to 1986. It is the case of the prosecution that appellant-Sukh Ram, Gram Sewak, while submitting applications on behalf of the villagers for these loans, was involved in misappropriation of loan amounts by forging their signatures and thumb impressions on the applications and acknowledgement receipts. = 311-A Cr.P.C. reads as under:- “Section 311A. Power of Magistrate to order person to give specimen signatures or handwriting.-If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.” The said amendment is prospective in nature and not retrospective. Similarly, in Criminal Appeal Nos.2292-2293 of 2014, Gurditu Ram-PW-2, Sohan Lal-PW-3, Badri Ram-PW-4, Mast Ram-PW-5 deposed that their signatures were obtained on some papers by the accused-Sukh Ram on the pretext that loan would be distributed to them as well as subsidy, but they did not get the entire amount, they were promised. While Smt. Savitri Devi- PW-8 deposed that she did not sign on any of the documents as she is illiterate and Smt. Vidya Devi-PW-1 deposed that she did not apply for any loan and did not sign on any of the documents. 21. In Criminal Appeal Nos. 2290-2291 of 2014, Gandhi Ram-PW-1, Mahanto-PW-2, Shankroo Devi-PW-4, Sant Ram-PW-5, Chhote Ram-PW-6 and Paras Ram-PW-10 deposed that they neither applied for any loan nor signed on any document. Upon consideration of evidence adduced by prosecution, in our view, High Court righty reversed the judgment of acquittal. The conviction of appellant in all the criminal appeals is confirmed.- In the present case, the occurrence was of the year 1983-1986 and, therefore, the authority of the Executive Magistrate to take specimen signatures of PW-5 and PW-7 during the course of investigation cannot be disputed. In any event, even dehors opinion evidence of handwriting expert, there is clear oral evidence of PW-5 and PW-7 denying their signatures in the loan application and other documents. Affirming the evidence of PWs 5 and 7 and analysis of evidence, the High Court has rightly reversed the judgment of acquittal and found the appellant guilty of the offences under Sections 468 and 471 IPC. Learned counsel for the appellant submitted that the appellant is more than 75 years of age and is suffering from severe ailments; he has prayed for reduction of sentence of imprisonment. Considering the facts and circumstances of the case and that the innocence of the villagers has been misused to siphon the public money, we are not inclined to reduce the sentence of imprisonment of the appellant. In the result, all the appeals are dismissed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 224 OF 2012

SUKH RAM                                              ..Appellant

                                   Versus

STATE OF HIMACHAL PRADESH                               ..Respondent

                                    WITH

         CRIMINAL APPEALS  NO. 2290-2291 of 2014 & 2292-2293 of 2014



                               J U D G M E N T



R. BANUMATHI, J.



            Present batch of appeals arise out of three  separate  judgments
of the High Court of Himachal Pradesh passed in Criminal Appeals No. 418  of
2007, 419 of 2007 and 420 of 2007 in and by which the  High  Court  reversed
the  acquittal  of  the  appellant  and  convicted  him  for  the   offences
punishable under Sections 468 and 471 of the Indian Penal Code  and  imposed
six months imprisonment.
2.          Common facts arising  out  of  these  criminal  appeals  are  as
follows:- During the relevant point of time i.e.  1983-1986,  there   was  a
government scheme for providing loans at the cheaper interest rates to  poor
persons living below the poverty line to enable  them  to  purchase  sheeps,
buffalos, horses and for running small businesses  and  for  development  of
land etc.  Upon recommendation of the Block Development Officer  (BDO),  the
bank disbursed these loans to the beneficiaries. Appellant-Sukh  Ram  was  a
Gram  Sewak, Navgaon under Arki Sub-Division during  said  period,  1983  to
1986.
3.          It is the case of the prosecution that appellant-Sukh Ram,  Gram
Sewak, while submitting applications on behalf of the  villagers  for  these
loans, was involved in misappropriation of loan  amounts  by  forging  their
signatures and thumb impressions on  the  applications  and  acknowledgement
receipts.  All three appeals  have  been  heard  together  as  the  offences
committed by the same accused persons appellant-Sukh Ram and others as  also
the modus operandi of committing the forgery and  falsification  of  records
being the same.  Criminal Appeal No.224 of 2012 is taken as the lead case.
4.          On the basis of the preliminary enquiry, it came to  light  that
PW-5 Nathu Ram, PW-7 Kirpu and PW-8 Garja Ram had loans  disbursed  to  them
despite  not  having  applied  for  the  loans.  Consequently,  a  case  was
registered against the appellant–Sukh Ram,  Balbir  Singh-Block  Development
Officer and Arun Kumar Sood, Branch  Manager,  UCO  Bank  Darlaghat.  During
enquiry, it further came  to  light  that  disbursement  of  loans  was  not
actually made to the beneficiaries. An FIR was registered and on  completion
of the investigation and  after  obtaining  sanction  from  the  government,
chargesheet was filed against the  appellant–Sukh  Ram  Gram  Sewak,  Balbir
Singh-Block Development Officer and Arun Kumar  Sood,  Branch  Manager,  UCO
Bank Darlaghat.  Charges were framed against  the  appellant  and  the  said
accused under Sections 409, 467, 468, 471,  120-B  and  420  IPC  and  under
Section 13(2) of the Prevention of Corruption Act.   During  the  course  of
investigation, PW-5 and PW-7 gave their specimen signatures in the  presence
of the executive magistrate and  the  same  were  sent  to  the  handwriting
expert  for  comparison  with  their  disputed  signatures   in   the   loan
application  and  other  documents.   Handwriting  expert  opined  that  the
signatures in the loan application and other documents  did  not  match  the
signatures of Nathu Ram, Kirpu and others but only matched the signature  of
appellant-Sukh Ram.
5.          To substantiate the charges, in  the  trial  court,  prosecution
examined 22 witnesses. The trial court discarded the testimony  and  opinion
of handwriting expert (Ex.PW20/C-1 to Ex.PW20/C-5) on the  ground  that  the
handwritten specimen given by PW-5 and PW-7 were taken before the  executive
magistrate who did not have  the  authority  to  enquire  into  or  try  the
offence.  Trial court came  to  this  conclusion  that  charge  against  the
accused was not proved by placing reliance on the decision of this Court  in
Sukhvinder Singh & Ors. vs. State of Punjab, (1994) 5 SCC 152.  Trial  court
held that the appellant–Sukh  Ram’s  (Gram  Sewak)  task  was  to  take  the
applications for loan as well as subsidy and accused  Balbir  Singh’s  (BDO)
task was to sanction the loan and subsidy and issue letters to the bank  and
Arun Kumar Sood’s (Branch Manager, UCO Bank) task was to  release  the  loan
and subsidy after securing the requisite documents to  that  effect.   Trial
court held that in the absence of legal evidence that appellant  and  others
have forged the loan documents, it cannot be concluded that the accused  had
entered into conspiracy of committing  forgery  and  cheating  etc.  and  on
those findings, the trial court acquitted appellant-Sukh Ram and others.
6.          Aggrieved by  the  judgment  of  acquittal,  State  of  Himachal
Pradesh preferred appeal before the High Court assailing the correctness  of
the decision of the trial court.  The High Court  differentiated  the  cases
relied upon by the trial court from the case at hand on  facts  as  also  on
law.  The High Court pointed out that even though the  executive  magistrate
before whom the specimen signatures were given did not  have  the  authority
to enquire into or try the  case;  however,  PW-5  and  PW-7  gave  specimen
signatures   voluntarily   during   the   course   of   investigation    and
differentiated the cases relied on by the trial court.   High  Court  relied
on the decision of this Court in Vijay alias Gyan Chand Jain  vs.  State  of
M.P., 1994 SCC (Crl) 1755: (1994) 6 SCC 308 to hold  that  the  exercise  of
power under    Section 73 of the Evidence Act does not apply in cases  where
the investigating officer approaches the executive magistrate  or  tehsildar
for taking specimen signatures or writings or where specimen is admitted  by
the accused or concerned persons.
7.          On the charges of criminal conspiracy, High Court  accepted  the
plea made by Balbir Singh (BDO) that he sanctioned  the  loans  because  the
applications were verified by the appellant.  High  Court  acquitted  Balbir
Singh (BDO) observing that there was lack of evidence suggesting  conspiracy
and held that no criminal conspiracy could be made out.  The  plea  of  Arun
Kumar Sood, Bank Manager, UCO Bank  Darlaghat  that  he  released  the  loan
amounts because the loans were sanctioned  by  Balbir  Singh  (BDO)  and  he
disbursed the amounts when the loanees were identified  before  him  by  the
appellant was also accepted by the High Court  and  Arun  Kumar  Sood,  Bank
Manager, UCO Bank Darlaghat was  acquitted.  The  High  Court  reversed  the
judgment of acquittal  and  found  the  appellant  guilty  of  forging  loan
applications of PW-5 and PW-7 (Ex.PW5/B and Ex.PW7/A)  and  other  documents
and convicted him for the offences punishable under  Sections  468  IPC  and
also  for  the  offence  of  using  said  forged  applications  as   genuine
punishable  under  Section  471  IPC.  On  being  convicted,  the  appellant
appeared before the High Court and he was questioned about the sentence  and
the High Court sentenced the appellant to undergo  simple  imprisonment  for
six months and to pay a fine of Rs.10,000/- for each of the offences for  he
had been convicted.   Being aggrieved, the appellant is before us.
8.          Learned counsel for the  appellant  submitted  that  High  Court
failed  to  appreciate  that  no  case  was  pending  before  the  executive
magistrate and he was not competent to take the specimen signatures  of  the
witnesses; there was no occasion for the police  to  produce  the  witnesses
before him and obtain their  signatures.   It  was  further  submitted  that
while setting aside the acquittal of  the  appellant,  High  Court  has  not
properly construed the provisions of the Evidence Act and erred  in  relying
upon the evidence of handwriting expert to convict the appellant.
9.          Per contra, learned counsel for the respondent   submitted  that
the  prosecution  has  proved  the  guilt  of  the  accused  by  relying  on
convincing evidence, oral testimony of witnesses amply corroborated  by  the
documentary evidence and also the opinion of the handwriting expert. It  was
submitted that since the trial  court  failed  to  appreciate  the  evidence
against the appellant, the trial  court  has  laid  great  emphasis  on  the
alleged lacunae in  the  investigation,  High  Court  rightly  reversed  the
judgment of acquittal and convicted the appellant and the impugned  judgment
warrants no interference.
10.         We have carefully considered the rival contentions, judgment  of
the trial court, impugned judgment of the High Court and  also  material  on
record.
11.         During the relevant time,  admittedly,  appellant-Sukh  Ram  was
posted  as  Gram  Sewak  and  he  was  to  collect  applications  from   the
prospective loanees duly  signed,  thumb  impressions  marked  by  them  and
certain columns of the application were required to be  filled  up  by  him.
After that, the loan papers were presented to BDO–Balbir Singh and BDO  used
to sanction loan and subsidy and then send a letter of sanction to the  Bank
Manager-Arun Kumar Sood, who after opening the account of loanees and  after
following the requisite formalities, used to disburse the loan  and  subsidy
to the beneficiaries.  From the  very  beginning,  the  concerned  officials
were required to scrutinize the papers i.e.  economic  viability,  technical
feasibility and antecedents of  the  beneficiaries  and  after  doing  this,
beneficiaries were asked to execute the  documents  like  application,  term
loan agreement, hypothecation agreement, proforma  bills etc.  In all  these
cases, case of the prosecution is that  neither  the  loan  amount  nor  the
subsidy was actually disbursed to the beneficiaries but was  misappropriated
by the appellant and others.
12.         To substantiate the prosecution case, PW-5 Nathu Ram, PW-6  Sant
Ram and PW-8 Garja Ram were examined who deposed that  they  did  not  apply
for any loan and nor did they put their signatures in  the  documents.  PW-5
Nathu Ram has categorically stated that he did not apply for any  loan  from
the UCO Bank Darlalghat and that application for loan  Exs.PW5/A  and  other
documents, PW5/B and PW5/C were not signed by him.  Likewise, PW-6 Sant  Ram
has also stated that he did not apply for any loan from UCO  Bank  Darlaghat
and specifically denied the execution of the loan  documents  (Exs.PW6/A  to
PW6/G).  PW-7 Kirpu has also deposed that he had  not  signed  any  document
for obtaining loan.  PW-8 Garja Ram, the  alleged  beneficiary,  has  stated
that he is an illiterate and does not sign and only thumb  marks  documents.
 PW-8 has further stated that he has never applied for loan  from  UCO  Bank
Darlaghat and never visited the bank for that purpose and has also not  made
any application for grant of loan.  The statement  of  the  above  witnesses
would clearly show that the documents were forged to avail the loan and  the
loan amount and subsidy amount were misappropriated.
13.         To corroborate the version of the witnesses that they   did  not
sign  on loan documents and receipts and to prove  that  the  signatures  on
the documents are that of the appellant-Sukh Ram and to prove the  guilt  of
the accused that he forged the documents to  misappropriate  the  government
money, prosecution has examined PW-20 Mohinder  Singh  (handwriting  expert)
who opined  that  the disputed signatures of the witnesses PW-5 (Nathu  Ram)
and PW-7 (Kirpu) in  the  loan  applications  were  not  that  of  the  said
witnesses.  During the course of investigation, specimen signatures  of  the
witnesses PW-5 (Nathu  Ram)  and  PW-7  (Kirpu)  were  obtained  before  the
executive  magistrate,  Arki  and  sent  to  the  handwriting   expert   and
fingerprint bureau.   On  comparison  of  the  specimen  signatures  of  the
witnesses with the disputed signatures and also the admitted  signatures  of
the appellant-Sukh Ram, in his report (Ex.PW20/C-1  to  Ex.PW20/C-3),  PW-20
opined that the disputed  signatures  in  the  loan  application  and  other
documents were not that of witnesses (PW-5 Nathu Ram  and  PW-7  Kirpu)  but
they tallied with the signature of appellant-Sukh Ram.
14.         Trial court discarded the  opinion  evidence  of  PW-20  on  the
ground that the executive magistrate was not the competent authority  before
whom the fingerprint and handwriting of the witnesses could be taken  as  no
proceeding was pending before the executive  magistrate.   In  this  regard,
trial court placed reliance upon Sukhvinder Singh’s case and held  that  the
opinion evidence of handwriting expert cannot be used against the accused.
15.         In Sukhvinder Singh’s case,  it  was  held  that  the  direction
given by the Tehsildar-Executive Magistrate  to  the  accused  to  give  his
specimen writing was clearly unwarranted and, therefore, the  said  specimen
writing could not be made  use  of  during  the  trial  and  the  report  of
handwriting expert was rendered of no consequence at all and  could  not  be
used against the accused to connect him with the crime.   It was  held  that
the direction to an accused to give specimen handwriting can only be  issued
by the court holding enquiry under the Criminal Procedure Code or the  Court
conducting the trial of such accused.
16.         High Court differentiated Sukhvider Singh’s case from  the  case
at hand on facts as also on law.  High Court pointed out that in the  matter
at hand, admittedly, the  authority-Executive  Magistrate  before  whom  the
specimen signatures were given did not have the authority  to  enquire  into
or try the case. However, as observed by the High Court, during  the  course
of investigation,   PW-5 and PW-7 gave the  specimen  signatures  willingly.
In Sukhvinder Singh’s case, specimen writing of accused  was  taken  as  per
the direction of the tehsildar; whereas in the present case  PW-5  and  PW-7
were produced before the Executive Magistrate by the police with  a  request
that their signatures be  taken  by  the  Executive  Magistrate.  Sukhvinder
Singh’s case is clearly distinguishable on facts  from  the  case  at  hand.
High Court further relied on another decision rendered in Vijay  alias  Gyan
Chand Jain’s case wherein in the facts and circumstances of the  said  case,
it was held that procurement of specimen  handwriting  of  accused  by  Naib
Tehsildar was not in violation of Section 73 of Evidence Act.
17.         The question  is  whether  the  Judicial  Magistrate/  Executive
Magistrate was authorized to take specimen writing  and  signatures  of  the
said accused during the  investigation  of  the  case  when  no  matter  was
pending  before  either  of  them.   Section  311-A  of  Cr.P.C.  has   been
introduced by Act No.25 of 2005 with effect from 23.06.2006 with respect  to
the  powers  of  the  Magistrate  to  order  the  person  to  give  specimen
signatures or handwriting; but no such powers were there prior to  the  year
2006.  Section 311-A Cr.P.C. has been inserted on  the  suggestions  of  the
Supreme Court in State of Uttar Pradesh v. Ram  Banu  Misra,  (1980)  2  SCC
343: AIR 1980 SC 791, that a  suitable  legislation  be  brought  along  the
lines of Section 5 of Identification of Prisoners Act, 1980, to provide  for
the investiture of Magistrates  with  powers  to  issue  directions  to  any
person  including  an  accused  person  to  give  specimen  signatures   and
handwriting but no such powers existed prior to  such  amendment.  The  said
amendment is prospective in nature and not retrospective.
18.         In State of Uttar Pradesh v. Ram Babu Misra, (1980) 2  SCC  343:
AIR 1980 SC 791, the Supreme Court dealing  with  the  scope  and  ambit  of
Section 73 of the Evidence Act held as under:
“The second paragraph of Section 73  enables  the  Court  to  give  specimen
writings ‘for the purpose of enabling the Court to  compare’  such  writings
with writings alleged to have  been  written  by  such  person.   The  clear
implication of the words ‘for the purpose of enabling the Court to  compare’
is that there is  some  proceeding  before  the  Court  in  which  or  as  a
consequence of which it might be necessary for the  Court  to  compare  such
writings.  The direction is to be given for the  purpose  of  ‘enabling  the
Court to compare’ and not for the purpose of enabling the  investigating  or
other agency ‘to compare’.  If the case is still under  investigation  there
is no present proceeding before the Court in which or as  a  consequence  of
which it might be necessary  to  compare  the  writings.   The  language  of
Section 73 does not permit a Court to give a direction  to  the  accused  to
give specimen  writings  for  anticipated  necessity  for  comparison  in  a
proceeding which may later be instituted in the Court.  Further, Section  73
of the Evidence Act makes  no  distinction  between  a  Civil  Court  and  a
Criminal Court.  Would it be open to a person to seek the assistance of  the
Civil Court for a direction to some other  person  to  give  sample  writing
under section 73 of the Evidence Act on the plea that it would help  him  to
decide whether to institute a civil suit in  which  the  question  would  be
whether certain alleged writings are those  of  the  other  person  or  not?
Obviously  not.   If  not,  why  should  not  make  any  difference  if  the
investigating agency seeks the assistance of the court under Section  73  of
the Evidence Act on the plea that a case  might  be  instituted  before  the
Court where it would be necessary to compare the writings?”

19.         After referring to Section 5 of the Identification of  Prisoners
Act, 1980 in Ram Babu Misra’s case, this Court  suggested  that  a  suitable
legislation  be  made  along  its  lines  to  provide  for  investiture   of
Magistrates with powers to issue  directions  to  any  person  including  an
accused person to give specimen signatures and handwriting.  Accordingly,  a
new Section 311-A was inserted in  the  Criminal  Procedure  Code.   Section
311-A Cr.P.C. reads as under:-
“Section 311A.  Power  of  Magistrate  to  order  person  to  give  specimen
signatures or handwriting.-If a Magistrate of the first class  is  satisfied
that, for the purposes of any investigation or proceeding under  this  Code,
it is expedient to direct any person, including an accused person,  to  give
specimen signatures or handwriting, he may make an order to that effect  and
in that case the person to whom the  order  relates  shall  be  produced  or
shall attend at the time and place specified in such order  and  shall  give
his specimen signatures or handwriting:
Provided that no order shall be made under this section  unless  the  person
has at some time been arrested in  connection  with  such  investigation  or
proceeding.”

The said amendment is prospective in nature and not retrospective.
20.         Similarly, in Criminal Appeal  Nos.2292-2293  of  2014,  Gurditu
Ram-PW-2, Sohan Lal-PW-3, Badri Ram-PW-4, Mast Ram-PW-5 deposed  that  their
signatures were obtained on some papers  by  the  accused-Sukh  Ram  on  the
pretext that loan would be distributed to them as well as subsidy, but  they
did not get the entire amount, they were promised. While Smt. Savitri  Devi-
PW-8 deposed that she did not sign  on  any  of  the  documents  as  she  is
illiterate and Smt. Vidya Devi-PW-1 deposed that she did not apply  for  any
loan and did not sign on any of the documents.
21.         In Criminal Appeal Nos.  2290-2291  of  2014,  Gandhi  Ram-PW-1,
Mahanto-PW-2, Shankroo Devi-PW-4, Sant Ram-PW-5, Chhote Ram-PW-6  and  Paras
Ram-PW-10 deposed that they neither applied for any loan nor signed  on  any
document. Upon consideration of evidence  adduced  by  prosecution,  in  our
view, High Court righty reversed the judgment of acquittal.  The  conviction
of appellant in all the criminal appeals is confirmed.
22.         In the present case, the occurrence was of  the  year  1983-1986
and, therefore, the authority of the Executive Magistrate to  take  specimen
signatures of PW-5 and PW-7 during the course  of  investigation  cannot  be
disputed.  In  any  event,  even  dehors  opinion  evidence  of  handwriting
expert, there is  clear  oral  evidence  of  PW-5  and  PW-7  denying  their
signatures in the  loan  application  and  other  documents.  Affirming  the
evidence of PWs 5 and 7  and  analysis  of  evidence,  the  High  Court  has
rightly reversed the judgment of acquittal and found  the  appellant  guilty
of the offences under Sections 468 and 471 IPC.
23.         Learned counsel for the appellant submitted that  the  appellant
is more than 75 years of age and is suffering from severe ailments;  he  has
prayed for reduction of sentence of  imprisonment.   Considering  the  facts
and circumstances of the case and that the innocence of  the  villagers  has
been misused to siphon the public money, we are not inclined to  reduce  the
sentence of imprisonment of the appellant.
24.         In the result, all the appeals are dismissed.  As   directed  by
the High Court, the sentence of imprisonment imposed on the appellant  shall
run concurrently.  The appellant is on bail and his bail bonds  shall  stand
cancelled. The appellant  shall  be  taken  to  custody  to  serve  out  the
remaining sentence.

                                                              ….……………………..J.
           (V.GOPALA GOWDA)


                                                              .………………………..J.
           (R. BANUMATHI)
New Delhi;
July 25, 2016



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