Ajit Kumar Patnaik vs Republic of India

P.K. Patra, J.—The appellant has challenged the judgment dated 29.6.1988 in T.R.No. 34 of 1983 passed by Shri D.M.Patnaik, Special Judge, Bhubaneswar convicting him u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act'') and under Sections. 420/467/468/471 of Indian Penal Code (hereinafter referred to as ''IPC'') and sentencing him to undergo rigorous imprisonment for one year on each count and directing the sentences to run concurrently. Further he was sentenced to pay a fine of Rs. 1,000.00 (one thousand), in default to undergo rigorous imprisonment for fifteen days.

Prosecution case briefly stated is as follows. During the period 1979-80, one Ramakanta Mohanty (who was a co-accused of the present appellant and since acquitted) who was a probation officer of the Indian Overseas Bank was deputed to work as the Branch Manager of Puri Branch of Puri Gramya Bank which was sponsored by the Indian Overseas Bank and the appellant (Ajit Kumar Patnaik) (hereinafter referred to as the ''accused'') was working as a Field Officer in Puri Branch of Puri Gramya Bank. The former had been appointed by the Deputy General Manager, Indian Overseas Bank and the latter had been appointed by Subodh Kumar Misra (P.W.3), Chairman of Puri Gramya Bank. The Pun Gramy a Bank used to advance various types of loans including loans to small traders, artisans and small farmers. It is alleged by the prosecution that during the course of business, three loans amounting to Rs. 1,000.00 (one thousand) each were sanctioned on three applications bearing number 144/79 purported to have been submitted by one Rama Chandra Sahu. number 148/79 purported to have been submitted by one Madhusudan Mohanty and number 7/80 purported to have been submitted by one Govinda Chandra Mohanty, all of Puri Town, by both the accused persons in connivance with each other by forging all the documents, viz., application forms, security bonds, demand promissory notes, etc. and both the accused persons misappropriated the said amount of Rs. 3,000.00. On source information. B.N.Mishra, the Deputy Superintendent of Police, C.B.I.. Bhubaneswar submitted the first information report on 4.8.1982 to the Superintendent of Police, C.B.I., Bhubaneswar and the case was registered and investigation was taken up. During investigation, the Investigating Officer (P.W.22) examined witnesses and several documents and found that the loanees Rama Chandra Sahu, Madhusudan Mohanty and Govinda Chandra Mohanty and their guarantors named in the guarantee forms were non-existent and as such both the accused persons had forged the documents in the names of fictitious persons and had sanctioned the loan amounts for the purpose of misappropriation. After completion of investigation P.W.22 submitted charge-sheet against both the accused persons. The trial Court held that the loan application No. 148/79 purported to have been submitted by Madhusudan Mohanty had been forged by accused Ajit Kumar Patnaik, whereas prosecution failed to prove beyond all reasonable doubts that the other two loan applications, i.e. Nos. 144 79 and 7/80, were forged by any of the accused persons. Consequently he held accused Ajit Kumar Patnaik guilty and convicted him of the charge and passed the sentences as stated above, while acquitting his co-accused Ramakanta Mohanty of the charge.

The plea of defence is one of denial and false implication.

Mr. S.S. Das, learned counsel for the accused, and Mr. Sanjit Mohanty, learned counsel for C.B.I., were heard at length. Mr. Das strenuously urged for setting aside the impugned judgment and to acquit the accused of the charge contending that the trial Judge fell into errors in coming to the conclusion that the accused forged the loan application bearing No. 148/79 and the other relevant documents and misappropriated the sanctioned loan amount and acquitting his co-accused on the same set of evidence recorded in the case. Mr. Mohanty supported the impugned judgment as legally justified warranting no interference.

In order to bring home the charge against the accused persons, prosecution examined twenty-two witnesses (P.Ws.) and the defence examined none. P.W.1 was the Deputy General Manager of Indian Overseas Bank at Madras who accorded sanction for prosecution of accused Ramakanta Mohanty. P.W.3 Subodh Kumar Mishra was the Chairman of Puri Gramya Bank at Pipili who accorded sanction for prosecution of accused Ajit Kumar Patnaik P.Ws. 2, 4, 9, 10, 12, 13, 14 and 15 are private persons who deposed regarding non-existence of the loanees and the guarantors. P.Ws. 5, 7, 17 and 18 are official witnesses who also deposed regarding non-existence of the loanees and the guarantors. P. W.1 9 is the handwriting expert who examined the specimen and admitted writings of both the accused persons along with the questioned documents. P.W.22 is the investigating officer. The other witnesses, such as, P.Ws. 6, 8, 11, 16, 20 and 21 have stated regarding the procedure for sanction and disbursement of loan as prevalent in the Puri Gramya Bank.

Both the accused persons admitted to have written the contents of the loan application forms and to have filled up the other particulars in the other forms, but have denied to have put the signatures of the loanees in the loan applications, demand promissory notes and debit vouchers. P.Ws. 1 and 3 have stated that there was nothing wrong with the Branch Manager and the Field Officer of the Bank to fill up the loan application forms, promissory notes and debit vouchers in order to facilitate expeditious disposal of loan applications. Therefore, the trial Court considered the evidence in details to find out whether the accused persons had forged the signatures in the loan applications, demand promissory notes and debit vouchers and came to the conclusion that the prosecution failed to prove beyond all reasonable doubts that the signatures relating to two loan applications, bearing Nos. 144/79 and 7/80. had been forged by any of the accused persons and that accused Ajit Kumar Patnaik who was the Field Officer had forged the signatures relating to loan application No. 148/79 and had misappropriated the sanctioned loan amount.

To reach the above conclusion the trial Court has elaborately discussed the evidence, both oral and documentary, and has found that prosecution has been able to establish beyond all reasonable doubts that there was no person in the name of Madhusudan Mohanty, the loanee in respect of loan application No. 148/79 and that the signatures of Madhusudan Mohanty in the relevant documents were in the handwriting of accused Ajit Kumar Patnaik. In other words, accused Ajit Kumar Patnaik forged the signatures of Madhusudan Mohanty in the aforesaid loan application and other documents and misappropriated the sanctioned loan amount of Rs. 1.000.00. The above finding of the trial Court is based on the following materials on record, elaborately discussed in the impugned judgment.

The loan application bearing No. 148/79 of Madhusudan Mohanty has been marked as Ext. 15 in which it is stated that he is son of late Rama Chandra Mohanty of Dutta Tota, Puri, carrying on business as an order supplier. Ext. 15/2 is the purported signature of Madhusudan Mohanty. Ext. 15/1 is the endorsement with signature of accused Ramakanta Mohanty. Ext. 16 is the guarantor''s statement Ext. 17 is the demand promissory note wherein Ext. 17/1 is the signature of Madhusudan Mohanty. It is alleged by the prosecution that on the date of the application, i.e. 13.9.1979. on which date the sanctioned loan was shown to have been disbursed. there was no person named ''Madhusudan Mohanty''. To establish the same, prosecution has examined the following witnesses. P.W.5 is a police constable who was entrusted by the investigating officer to serve notices on the purported loanees and their guarantors in the addresses given in the loan applications and other documents, P.W.5 has stated that the loanees, Madhusudan Mohanty, Govinda Chandra Mohanty and Rama Chandra Sahu and their guarantors Fakir Sahu. Jadunath Sahu and Sarat Kumar Mohanty were non-existent which he could know after thorough search in the localities as per the addresses given in the loan applications. After thorough discussion about the statement of P.W.5. the trial Court found the same to be reliable and unimpeachable and accepted the same. P.W.7 is an Octroi Inspector of Puri Municipality who was directed by the Executive Officer of Puri Municipality to locate the aforesaid three loanees and their three guarantors in their respective addresses and after searching for them in the given addresses with the assistance of one Tax Collector, he found all of them to be non-existent and accordingly submitted his report to the Executive Officer. Since the said report was not brought on record and P.W.7 had not stated in his statement u/s 161. Cr.P.C. before the Investigating Officer that he had personally verified and visited the places, his statement has not been accepted by the trial Court. P.W. 10, Rama Chandra Sahu. is a permanent resident of Dutta Tota of Puri Town carrying on business in lemon at Laxmi Bazar, Puri Town. In his statement in chief he could not say if there was any person by the name ''Madhusudan Mohanty'' residing at Dutta Tota. Puri Town, carrying on business as an order supplier. He was confronted with his previous statement made before the investigating officer that there was no person named Madhusudan Mohanty, s/o. late Rama Chandra Mohanty at Dutta Tota, carrying on business as an order supplier. The trial Court held that the statement of P.W. 10 does not go against the prosecution, although it was negative m nature. P.W. I 3 is an Assistant Branch Manager of New India Assurance Company and a permanent resident of Dutta Tota. Puri Town which comes under Ward No. 7 of Puri Municipality. He had been elected as the Ward Member of that Ward for three years till 1981. He could not say if there was any person named Madhusudan Mohanty, s/o late Rama Chandra Mohanty at Dutta Tota and like P.W. 10 he was also confronted with his previous statement made before the investigating officer that there was no person named Madhusudan Mohanty , s/o. late Rama Chandra Mohanty at Dutta Tota of Puri carrying on business as an order supplier. It has been elicited from his mouth in cross-examination that one Mohanty residing at Dutta Tota was carrying on business as an order supplier but he could not definitely say whether that Mohanty was Madhusudan Mohanty or anybody else and could not deny the suggestion that the said Mohanty was Madhusudan Mohanty, Since 1982 he has left Puri Town as he had been posted elsewhere, but was visiting his place during holidays. After analysing the evidence of P.W. 13. the trial Court accepted his evidence as reliable.

P.W. 18 is another important witness on this score who was working as a Field Supervisor of Puri Gramya Bank, Puri Branch during 1981-82. He was directed by the Branch Manager to obtain revival letters from the loanees and debit confirmation forms from the guarantors under the aforesaid three loan accounts. He has stated that he could not get any of the loanees or their guarantors at the given addresses in spite of his attempts with the assistance of one clerk of the bank, named Mrutyunjay Patnaik (P.W.6) and accordingly submitted his report, Ext. 53, to the Branch Manager. After analysing the statement of P.W. 18, the trial Court accepted the same to be reliable and unimpeachable. On the above materials on record, the trial Court held that the prosecution had been able to establish that the loanee Madhusudan Mohanty, s/o. late Rama Chandra Mohanty of Dutta Tota, Puri Town and his guarantor Fakir Charan Sahu of Dandimala Sahi, Puri Town were non-existent. The contention of the learned counsel for the accused that the statements of P.Ws. 6, 12 and 13 would support the plea of the accused regarding existence of the loanee and the guarantor in respect of loan application No. 148/79 cannot be sustained in view of the discussion on the statements of these three witnesses made earlier.

Though the defence took the plea that the loanee Madhusudan Mohanty and his guarantor Fakir Charan Sahu were real persons and not fictitious persons, no evidence was led on that score. Therefore the defence plea on this score was rejected invoking support from the decision reported in Sawal Das Vs. State of Bihar, in which it has been held as follows :

"Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused."

Reference has been made to the decision reported in Gurcharan Singh and Another Vs. State of Punjab, . In that case it has been held as follows :

"The burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt."

Learned counsel for the accused contended that the statements of aforesaid prosecution witnesses should not have been relied upon by the trial Court to come to a conclusion that the loanee and his guarantor were non-existent and urged for setting aside the said finding. The above contention of the learned counsel for the accused cannot be accepted since the finding of the trial Court on this score is based on cogent convincing and unimpeachable evidence of the prosecution witnesses who had no axe to grind against the accused and was supported by the decision of the apex Court (supra). If the loanee and his guarantor were real persons and not fictitious persons, there was no bar for the accused to find out them. He could have very well produced them before the investigating officer during investigation of the case or in Court as defence witnesses during trial. But he has failed to do so and thus he has not discharged the burden of proving a plea which could have absolved him from criminal liability.

After reaching the above conclusion regarding non-existence of the loanee and his guarantor, the trial Court considered whether the accused forged the loan application No. 148/79 as also the connected documents and misappropriated the sanctiorted loan amount. Ext. 15 is the loan application of Madhusudan Mohanty wherein Ext. 15/2 is the disputed signature of Madhusudan Mohanty which has been marked ''Q-2/4'' by the handwriting expert who has opined that Ext. 15/2 is in the handwriting of accused Ajit Kumar Patnaik. Ext. 17 is the demand promissory note wherein Ext. 17/1 is the disputed signature of Madhusudan Mohanty marked ''Q-2/9'' by the handwriting expert who has opined that the signature Ext. 17/1 is in the handwriting of accused Ajit Kumar Patnaik, Ext. 21 is the debit voucher (cash receipt) wherein Ext. 21/2 is the disputed signature of Madhusudan Mohanty which has been marked ''Q-5'' by the handwriting expert who has opined that the said disputed signature is in the handwriting of accused Ajit Kumar Pantaik. Ext. 58 is the report of the handwriting expert (P.W. 19) in that regard.-Ext. 63 is the further report of P. W.19 assigning reasons for expressing the opinion as per Ext. 58. After thorough analysis of the statement of P.W. 19 and considering various decisions relied upon by the defence counsel, the trial Court accepted the evidence of P.W. 19 repelling all the contentions of the defence counsel and came to the conclusion that the signatures of Madhusudan Mohanty had been forged by the accused. His findings are :

(1) Madhusudan Mohanty was a person not in existence and therefore by no stretch of imagination it can be said that said Madhusudan Mohanty put his signatures on the valuable securities and documents.

(2) Accused Ajit Kumar Patnaik was serving as a Field Officer in the Puri Gramya Bank who was to recommend for sanction of loans to real persons eligible for loans and that the accused has admitted to have filled up the application for guarantor''s form and also the agreement in his own handwriting and being an officer of the Bank he took advantage of submitting a loan application of a fictitious person.

(3) Accused admitted to have filled up the credit voucher (Ext. 22) showing credit of Rs. 141.90 paise towards the loan account No. 148/79

(4) It is proved that Ext. 18, an undertaking form for recovery of loan as a public demand, and Ext. 19, a document undertaking to pay the amount in twenty equal monthly instalments have been filled up by the accused and the signatures of Madhusudan Mohanty in both the documents are in the handwriting of the accused.

The above findings were held as corroborative evidence to the evidence of the handwriting expert (P.W. 19). The trial Judge also himself compared the specimen and admitted writings of accused Ajit Kumar Patnaik with the questioned writings and came to the conclusion that the writings were of the same person. The handwriting expert''s examination of the disputed documents with the admitted and specimen writings of the accused and was found to be thorough, complete and scientific and it was held that prosecution has proved beyond doubt that accused Ajit Kumar Patnaik forged the loan application (Ext. 15), the demand promissory note (Ext. 17) and the debit voucher (Ext.21) and had received the sanctioned loan amount of Rs. 1,000.00. Learned counsel for the accused contended that the above findings of the trial Court are unsustainable in the eye of law in view of the evidence of P.W.6, Cashier of the Bank that he did not remember who received the cash from him and whether the loanee put his signature on stamp on the reverse of Ext. 21 in his presence or not and his denial as to who signed as Madhusudan Mohanty on Exts. 15. 17. 18. 19 and 21. This contention of the learned counsel for the accused is untenable masmuch as denial of P.W.6 as to who put the signatures of Madhusudan Mohanty and as to who received the cash from him could not help to reach a conclusion in favour of the accused.

Learned counsel for the accused contended that the opinion of the handwriting expert (P.W. 19) as contained in Ext. 58 should not have been accepted since no reasons were assigned for giving the said opinion and the subsequent report (Ext. 63) should not have been admitted into evidence as it was produced only on the date of deposition by the handwriting expert (P.W. 19). The above contention of the learned counsel for the accused has no force since there was no bar to admit the report (Ext.63) into evidence on the date of deposition of P.W. 19 as it contained the reasons for the opinion expressed in Ext. 58. Learned counsel for the accused placed reliance on the decision reported in M. Narayanan Nambiar Vs. State of Kerala, in which it has been held that the principles of natural justice require that no Court shall give a finding whether on fact or law and particularly on facts without giving an opportunity to all the contesting parties and where a Judge acted upon a document filed by prosecution without giving any opportunity to the accused to file objections or to contest its reliability, it must be held that the principles of natural justice were violated and the findings of the Court must be set aside. In the present case, it cannot be said that no opportunity was given to defence when the document Ext. 63 was admitted into evidence since the accused had engaged an advocate, who was a handwriting expert, to cross-examine P.W. 19 and P.W. 19 was cross-examined after two months five days of his examination in chief.

Learned counsel for the accused also placed reliance on the decision reported in AIR 1973 SC I346 (Bhagwan Kaur v. Maharaj Krishna Sharma and others) in which it has been held that the evidence of handwriting expert, unlike that of a fingerprint expert is generally of a frail character and its fallibilities have been quite often noticed and that the Court should, therefore, be wary to give too much weight to the evidence of handwriting expert and that the conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case.

Reliance has also been placed by the learned counsel for the accused on the decision reported in Magan Bihari Lal Vs. The State of Punjab, It has been held in the said decision that it is now well settled that expert opinion must always be received with more caution than the opinion of a handwriting expert and it is unsafe to base a conviction solely on expert opinion without substantial corroboration. The same view has also been taken in the case of Ajodhya Prasad Misra v. The State of Orissa. reported in 1985 (1) OLR 326.

In the case of State of Maharashtra v. Sukhdeo Singh and Anr. reported in AIR 1992 SCW2486 it has been held as follows :

"A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equaled to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the Court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of fingerprints. Courts have therefore been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and quality of expert evidence. No hard and fast rule can be laid down on this behalf but the Court has to decide in each case on it''s own merits what weight it should attach to the opinion of the expert. In the instant case the opinion evidence of handwriting expert was not so high as to commend acceptance without corroboration."

Supporting the findings of the trial Court regarding acceptance of the opinion of the handwriting expert, the learned counsel for the respondent placed reliance on the following decisions :

In AIR 1967 SCI 326 (Fakhruddin v. The State of Madhya Pradesh) it has been held as follows :

"The writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an Expert competent to the comparison of handwritings on a scientific basis. A third method is comparison by the Court with the writing made in the presence of the Court or admitted or proved so by the writing of the person. Both u/s 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent conservations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. Where an expert''s opinion is given, the Court must see itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its observation that it is safe to accept the opinion whether of the expert or other witness."

In the case of Muralilal v. State of M.P. reported in AIR 1980 SC 531 it has been held as follows :

"There is no rule of law, nor any rule of prudence which has crystalised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight."

In the case of Suresh Kumar alias Suresh Chand Vs. Mew Ram and others, it has been held that Court can itself compare genuine and disputed signatures and come to conclusion when experts differ on disputed signatures.

In the case of Ajit Savant Majagavi Vs. State of Karnataka, it has been held that Section 73 of the Evidence Act does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert u/s 45 or by anyone familiar with-the handwriting of the person concerned as provided by Section 47 or by the Court itself. As a matter of extreme caution and judicial sobriety the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available u/s 73.

In the present case, the trial Court has analysed the evidence of P.W. 19 and also himself compared the disputed writings with the specimen and admitted writings of the accused and has noticed the decisions governing the field and has come to the right conclusion that the accused forged the signatures of Madhusudan Mohanty in the relevant documents. The finding of the trial Court on this score cannot be interfered with as there is no infirmity or illegality in the same.

The last contention of the learned counsel for the accused is that the sanction order given by P.W.3 to prosecute the accused is legally unsustainable since all the materials were not placed before him and as such the prosecution was vitiated. The trial Court rejected this contention holding that the sanction order (Ext.5) given by P.W.3 was a valid sanction order since it contained details of the prosecution case and the facts constituting the offences, P.W.3 has stated that he received the documents and the report alongwith extracts of statements of witnesses and after perusal of the same he was satisfied that there were grounds for prosecution of accused Ajit Kumar Ratnaik and therefore he accorded sanction. Nothing has been elicited from his mouth in cross-examination to show that he was not competent to accord sanction and that there was non-application of mind. The finding of the trial Court that the sanction order (Ext.5) is a valid sanction order in the eye of law and that prosecution was not vitiated cannot be said to be erroneous and cannot be interfered with, notwithstanding non-production of Ext. 63 containing reasons for the opinion of the handwriting expert before the sanctioning authority. Thus it is found that there was valid sanction for prosecution of accused Ajit Kumar Patnaik and that prosecution was not vitiated. All the contentions of the learned counsel for the accused are found to be unsustainable.

There is no doubt that the accused Ajit Kumar Patnaik serving as a Field Officer of the Puri Gramya Bank was a public servant. He is found to have forged documents purported to be valuable securities. viz. demand promissory note, debit voucher (cash receipt), etc. alongwith the loan application and that he committed forgery intending that the documents forged would be fused for the purpose of cheating and that he fraudulently and dishonestly used as genuine documents which he knew to be forged ones and received the sanctioned loan amount of Rs. 1,000.00-and misappropriated the same. Therefore the impugned judgment convicting the accused of the charge u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and under Sections. 420/467/468,471 IPC, is bound to be upheld and cannot be interfered with. In the facts and circumstances of the case, the sentence of rigorous imprisonment for one year on each count and a fine of Rs. 1,000.00 on the whole, in default to undergo rigorous imprisonment for fifteen days more, with direction that the substantive sentences would run concurrently cannot be said to be excessive to warrant interference. Thus the appeal is found to be devoid of any merit and is liable to be dismissed.

In the result, the Criminal Appeal is dismissed. The impugned judgment dated 29.6.1988 in T.R.Case No. 34 of 1983 passed by the Special Judge. Bhubaneswar is upheld and the conviction of the accused and the sentences passed against him are confirmed.