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
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
