Durga Dutt Sharma vs State of H.P.

Bhawani Singh, J.—The accused seeks to challenge the judgment of Addl. Sessions Judge (II), Shimla in Criminal Appeal No. 23-S/10 of 1986/87 whereby the appellate Court declined to interfere with the judgment of the Chief Judicial Magistrate, Shimla, in case No. 1/3 of 1984. The accused was tried u/s 120-B read with Sections 420/467/468/471 of the Indian Penal Code and was convicted for the aforesaid offences alongwith one Surinder co-accused and sentenced to imprisonment till the rising of the court and to pay a fine of Rs. 250/- on each count.

Briefly, the facts are that the accused was posted as Clerk-cum-Cashier in the Punjab National Bank, Shimla, while the co-accused Surinder Kumar was an Accountant in the same Bank. An application for loan under the D. R. I. (Differential Rate of Interest) scheme was prepared on behalf of one Suresh Chand Shop No. 11, Boileauganj, Shimla, for a loan of Rs. 5,000/-. It was processed and sanctioned and the amount of loan was released to the applicant on the same day. According to the procedure, the loan application on Form No. PNB-548 was to be submitted by the applicant and an officer of the Bank would thereafter make a secret enquiry regarding the applicant and submit his report in Form No. PNB 550-H and then an agreement form No. 639 was to be executed by the loanee and the authorised officer of the Bank. The loan used to be sanctioned by the Manager after having fully satisfied about the financial position of the loanee. Opening of a Saving s Fund Account with the Bank was one of the essential requirements and for opening the same his introduction was also necessary in addition to completion of certain other requirements. The sanctioned amount of loan used to be transferred to the Savings Fund Account of the borrower wherefrom he could withdraw the same.

The case of the prosecution is that the accused entered into a conspiracy and in order to achieve the object thereof a loan application was prepared in the name of Suresh Chand, a fictitious person. This application was not only prepared by the accused Durga Dutt Sharma but he signed this application for Suresh Chand. He also prepared the Confidential Report (Ex. P-10), Guarantee Deed (Ex. P-2), Loan Agreement (Ex. P-12), the Savings Fund Opening document (Ex. P-16), transfer voucher (Ex. P-18), Application for Loan (Ex. P-9) and Cheque No. PRH-009591 (Ex. P-7) whereon the loan amount was withdrawn from the Savings Fund Account No. 37259. The co-accused Surinder Kumar signed the Confidential Report (Ex. P-10) in token of authentication. The signatures of Suresh Chand written, infact, by Durga Dutt Sharma were also authenticated by the co-accused Surinder Kumar.

When the forgery and the cheating was detected, accused Surinder Kumar deposited the amount of Rs. 4015/-on 25-3-1983 on behalf of the borrower. The present case was registered. Their specimen signatures and writings were sent for comparison to the Government Examiner of Questioned Documents along with the disputed writings and signatures. The hand-writing expert reported that the disputed writings were in the hand of the accused and they were authenticated by the co-accused by putting his initials. The challan was presented against both the accused and the same ended in the aforesaid conviction of the accused. The appellate Court also maintained the same against both of them. However, it is stated that only the present accused has challenged the findings of the courts below and accused Surinder Kumar has not raised any grievance against his conviction.

Sh. Surinder Thakur, counsel for the accused, has raised number of pleas. He submitted, inter-alia, that the accused deserves to be acquitted of all the charges since no offence has been proved against his client by the prosecution. Mo. criminal intent has been alleged and proved. The accused has himself been a victim of fraud at the hands of the co-accused Surinder Kumar who was the actual perpetrator and beneficiary of the crime. It was also submitted that infirm and fallible opinion of the expert was given prominence and weight which, as a matter of fact, should have been discarded altogether. Besides, the version of the Manager, K.S. Rajput (P.W.6) lias been accepted although the same was absolutely weak, biased, untrustworthy and inadmissible as substantial evidence. It is also submitted that incorrect inferences as to the participation of the accused in the commission of the offence in question have been drawn and the genuine and straight forward explanation discarded without justifiable reasons.

Now, it is to be seen whether the accused has committed the offence in question in view of the evidence on the record of this case.

The prosecution relies on two pieces of evidence against the accused to sustain the conviction. Its thrust is on the handwriting expert R. K. Jain (P.W. 16) and the official witnesses.

It is very difficult to except the version of K.S. Rajput (P.W. 6) for the simple reason that he neither saw the preparation of the documents in question nor was he posted in the Bank on 5-2-1982. His statement does not fall strictly within the provisions of Section 47 of the Evidence Act and it appears that his statement is based on his study of the documents lateron since the non-inclusion of the name of the accused at the stage of recording of the First Information Report establishes that there was no case against the accused having signed for Suresh Chand.

In such a situation, his evidence is legally unacceptable. B.K. Mahindru (P. W. 15) officiated as Branch Manager on this day and signed number of documents besides sanctioning the loan. He states that the loan application had been filled in by the accused and Surinder Kumar had recommended it. He admits that this application was sanctioned by him and the amount of Rs. 5000/- was transferred to the Savings Fund Account of the loanee through transfer voucher (Ex. P-13) filled in by the accused, initialed by Surinder Kumar and passed by him as Passing Officer. Credit Voucher (Ex. P-14) was also filled in by the accused, initialed by Surinder Kumar and signed by him as authorised Officer. The loan agreement (Ex. P-l 2) was filled in by the accused and was signed by Surinder Kumar on behalf of the Bank. In cross-examination, he denies that the presence of loanee for interview with the bank Manager before the sanction of loan was necessary. In many cases, loans had been sanctioned in the absence of the loanee although he did not remember any particular instance. He admits that the loan agreement is executed in the presence of both the parties and in this case, it was executed by Surinder Kumar accused on behalf of the Bank as he was functioning, on this day, as Loans Officer. As to the opening of the account, he states that the case the account-opener is introduced by any officer of the Bank, his physical presence is not necessary. He further states that the Manager sanctions or rejects the loan after seeing the confidential report. It appears from the statement of this witness that he has not stated that the accused had signed for Suresh Chand. Naturally so Otherwise, he could have found similarity in the handwriting in the other columns of the forms and the signatures of the loanee and, in that case, the fraud could have been noticed there and then. This conclusion can be drawn about all other witnesses who state that the accused had signed for Suresh Chand. According to Parveen Grand (P.W. 14), the presence of the loanee at the time of the execution of the loan agreement is necessary and the same is also necessary before the Bank Manager although personal interview with the Manager may not be necessary. he cross-examination, he reiterates that the loanee has to be present in the Bank at the time of execution of the agreement and loan documents are filled by the Loan Clerk and the accused was working as Loan Clerk at that time. This witness does not state that the accused signed for Suresh Chand. Harder Singh Sub Manager (P.W. 13) also states that the bank employees also help in filling up the loan applications. According to him, a special person is appointed to prepare the confidential report and he prepares the same after verification. This witness also does not state that the accused had signed for Suresh Chand Sat Parkash (P. W. 12) was p v., rod as Sub Manager at that time. It was he who initiated the matter by reporting this incident to the Manager, K.S. Rajput (P.W. 6). He admits that the loan amount had been deposited by 25-3-1985 but he could not say by whom it was deposited. According to him, it is not necessary that the of an see must have personal interview with the Manager before the loan is sanctioned. He admits that S.S. Thakur, the guarantor, had his account in the Bank but he could not identify his signatures. This witnesses may be clear as to the preparation of certain documents but is not specific as to the signatures of Suresh Chand. Further, much reliance can not be placed on his testimony since, as already observed, he was the person who initiated the present case. Y.P. Sharnia, Ac countant (P.W.-l 1) does not say that the accused had signed for Sitresh Chand although he states that the accused signed "pay to Mr. Daya Chand" on Ex. P-7. This aspect of version is of no consequence since the accused has not been asked to explain it in his examination u/s 313 Code of Criminal Procedure Further, there could be no reason to write these words by the accused as it was a chequered to be paid to "self". in addition to this, Daya Chand has not been joined in the investigation nor produced as a witness. Smt. Amrit Pal Kaur (P. W.-l) states that she was working as a Cashier on 25-3-1983when Surinder Kumar accused was posted as an Accountant. Rs. 4013.55 were deposited in the Bank through pay-in-slip (Ex. P-Y) in the term loan account of Suresh Chand. The person who deposited this amount in the bank through Ex. P. 1 was accompanied by accused Surinder Kumar. After depositing Rs. 4013.55, the balance was given to Surinder Kumar. In respect of pay-in-slip (Ex. P-6), according to L. R. Karoi (P. W. 3) Rs. 10001- were deposited but who actually did it cannot be said since the depositar was not seen by him. The depositor normally comes to the Cashier. This means the depositor of this amount was someone other than the accused and Surinder Kumar co-accused.

It is apparent from the testimony of this set of witnesses that although they have stated that the" loan forms were filled in by the accused but they have not said that the accused had signed for Suresh Chand. The testimony of Sh. K.C. Raj put (P.W. 6) does not inspire confidence for the reason that he could not have said so being not available in the Bank on the day of -A-occurrence. Others, had they been aware of the writing of the accused, the fact could have been discovered during the processing of the loan, application etc. In these circumstances, it is difficult to acajou thur version against present accused.

The other evidence pressed into service by the prosecution is that of the handwriting expert R.K. Jain (P.W.-l 6). Perusal of this evidence indicates that it suffers for lack of precision. Expert evidence is opinion evidence and complete reliance there-; on cannot be placed for the conviction of an accused person.... Corroboration has to he sought in order to establish the case; against the accused. It is noticeable that the expert has just1 pointed out the similarities in the writings examined by him and not the dissimilarities, which is a gross inadequacy in the examination of the matters before him and his ultimate report. The learned Counsel for the accused rightly submits that the decisions of the courts below have wrongly placed compete reliance on the expert evidence despite inadequacies and deficiencies in the same forgetting that the court has to assess the matter strictly within the judicial parameters. As to the value of the evidence of the handwriting expert, reference to 1985 Cri. L. J. (Ajodhya Prasad Misra and etc. v. State of Orissa) 1983 CriLJ. 10 (Him. Pra) (Ram Gopal and Ors. v. State of Himachal Pradesh) 1981 CriLJ 223 (Delhi) (Jul Mohan Ram v. The State) was made. In all these decisions, it has been pointed out that the evidence of a handwriting expert is very weak and fallible. It is generally of; frail character based on mere comparison of handwriting and; must be at best indecisive. It must be received with great-caution. It cannot be conclusive because it is, after all, opinion evidence so it is desirable to look for corroboration cither by direct evidence or by circumstantial evidence. The learned Counsel also referred to Ishwari Prasad Mishra Vs. Mohammad Isa, and Magan Bihari Lal Vs. The State of Punjab, In Para 7 of the later decision, the Court speaking through P.N. Bhagwati, J (as the learned Judge then was) said:

...It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex. P. W. 10/A was that of the same person who wrote the specimen, handwritings Ex. PW 27/37 to 27/57, that is the Appellant, but we think it would be extremely hazardous to condemn the Appellant merely on the strength of opinion evidence of handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rules has been universally acted upon and it has almost become a rule of law. It was held by this Court in. Ram Chandra and Another Vs. State of Uttar Pradesh, that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad K Md. Isa AlR 1963 SC 1728 . that expert evidence of handwriting can never be conclusive because it is. after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, where it was pointed out by this Court that expert''s evidence as to handwriting being opinion evidence can. rarely, if ever, take the place of substantial evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion, to consider the evidentiary value of expert opinion in regard to handwriting in Fakhrudin v. State of M.P. AIR 1967 SC 1326 and if uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon, such evidence, the Court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and American Courts. Vide Gurnev v." Longlands (1822) 5 B Aid 330 and matter of Alfred Foster''s will, 34 Mich 21. The Supreme Court of Michigan pointed out in the last mentioned case:

Every one knows how very unsafe it is to rely upon any one''s opinion concerning the niceties of penmanship-Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil". We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion evidence is by is very nature, weak and infirm and cannot of itself form the basis for a conviction. We must, therefore, try to seek whether, in the present case, there is, apart from the evidence of the handwriting expert B. Lal, any other evidence connecting the Appellant with the offence.

In view of the aforesaid discussion and the statement of law on the subject, it is to rely on the report of the expert in this case. Furthermore, corroboration of the expert evidence; from the version of other witnesses, already discussed above, not possible in view of the conclusions as to the value of their) statements already discussed hereinabove.

On the record of the case, there is a Circular No. 952 of May 11, 1983 (Ex. D-1). It is regarding prevention of frauds and guidelines for opening and introduction of accounts. Contents of this document envisage certain salutary instructions to the officials of the Bank which have to be followed before an account is opened. These instructions have not been followed while opening the account in the present case. Further, these instructions nowhere except the following of this procedure in a case where the person concerned is introduced by some bank official.

Next, the fraud could be detected before the release of the loan amount since it was a transaction being hurried through. Large number of documents was involved in the process. They have to be completed and they pass from stage to stage before they land on the table of the Manager who accords the final sanction after verification as to the genuineness of the borrower and the loan. His verification as to person genuinely opening an account with the Bank has also to be there. The application was moved on 5-2-1982. It was processed and sanctioned on the same day. The Savings Fund Account was also opened on the same day. The amount of loan was also transferred to this account and released on the same day. Anyone could have doubted such a transaction but it appears that everyone except Surinder Kumar was acting in a bonafide manner since they appear to have done their part of the job under the belief that there was no hanky-panky in the matter and the crucial parts of the documents had been authenticated by Sh. Surinder Kumar, an official of the Bank, but it proved to be wrong. Perusal of the documents and the evidence on record shows that the loan application (Ex. P-9) has been recommended by the co-accused Surinder Kumar. The Confidential report (Fx. P-IO) has also been given by him. The loan agreement form (Ex. P-12) has also been authenticated by him. Similarity, documents Ex. P-13, Ex. P-14, Ex. P-15 and Ex. P-16have been signed by him. But for his authenticating these important documents at important places, the loan could neither have been sanctioned nor the Savings Funds Account opened or the loan amount transferred to this account and then released in favour of the loanee. His part, therefore, is quite crucial and fundamental in this transaction.

Now coming to the case of the accused, it is to be seen whether his explanation is bonafide and genuine so as to exclude his intention Participation in the commission of the offence. Perusal his examination u/s 313 Code of Criminal Procedure points out that the accused has admitted the completion of certain forms but has denied having signed for Suresh Chand. A critical any -is of this explanation shows substance in this defence since all the documents which have been filled by the accused had n common pattern and appear to have been completed at the time the documents used to be completed by the Bank, employees and it has been stated by certain prosecution witnesses. The Question is whether the accused had entered into a conspiracy to act in this manner. The answer is in the negative. There no evidence which points out that the accused was interested in the transaction and intended to gam an advantage out of f Wept filling certain forms he did not play any other court The loan amount, according to evidence was deposited by person who was accompanied by Sunnder Kumar to whom some the nee was returned. Who was this person 7 Obviously he not be other than a person who was party to the, crime the tinder Kumar. The accused has specifically stated that he neStS"ed for Suresh Chand nor for S.S. Thakur and Suresh Chand did not sign the documents m his presence. This means tlia Surinder Kumar knew the person concerned and he was in league with that person to get the loan in question. It appears to be the work of Surinder Kumar and that person who was accompanied statures of Suresh Chand and S.S. Thakur on the loan documents. The accused simply filled in the forms and was not engaged in any conspiracy and execution and signing of documents for Suresh Chand and S.S.Thakur. The prosecution has not been able to establish the identity of the person who has actually the applicant loanee although he had Summoning with Surinder Kumar from to time. Therefore, the commission of the crime has not been established Accused Durga Dutt Sharma was also not named as an accused Information Report (Ex. P. W.20 A), the scale tilts against co-accused Surinder Kumar again when we see the documents filed by the accused through Cr. M. P. No. 3 of 990 u/s 482 Code of Criminal Procedure and allowed by this Court on 3-1-1990 without any objection by the State. It appears that Surinder Kumar had adopted similar modus operandi m many other is cases and the frauds were detected. He was proceeded against departmental and his services challenged his termination m this Cow t through uv11writ Petition No 948 of 1986 which was dismissed on 5-5-1987 by the Division Bench of this Court. It is quite clear that the loanee is not fictitious; his address is fictitious. That is why he was not available at the place mentioned in the loan documents.

The result of the aforesaid discussion is that the prosecution has failed to prove the case against the present accused and the conviction is liable to be set aside. Accordingly, I allow this revision and set aside the conviction and sentence imposed upon the accused. He is acquitted of the charge. Bail bonds and surety bonds, if any, executed by him at any stage of the case are hereby terminated.