In Re: M.A. Anthony

Maheswaran, J.—The Revision petitioner has been convicted of offences punishable under Ss. 468, I.P.C., 420 read with S. 34, I.P.C. and S. 471 read with S. 34, I.P.C. and was sentenced to rigorous imprisonment for one year and to a fine of Rs. 300/- under each of the charges by the 1lth Metropolitan Magistrate, Saidapet, Madras, and the Additional Sessions Judge, Madras Division, confirmed the convictions and sentences.

The facts:-The revision petitioner was a. Burma Repatriate and was President of the Burma Tamizhar Sangham, Coimbatore. One, Swamysankar who was a co-accused with the revision petitioner was an Assistant in the Repatriate Co-operative Finance and Development Bank. Kalyanam who was also another co-accused was the Accounts Officer of the said Bank. Viswanathan, P.W.2, also a Burma Repatriate, wanted to obtain a loan from the Bank for construction of a house and for that purpose gave an "Emergency Certificate", Ex. P2, and the identity card to A-1, the revision petitioner. The revision petitioner asked him to meet him at Coimbatore. But no house site was allotted to P.W.2. P.W.2 then applied to the Collector of ''Nilgiris'' and the Collector asked P.W.2 to produce the emergency certificate. P.W.2 then asked A-l to return the emergency certificate and the identity card. But, A-l returned only the identity card and said that he has lost the emergency certificate. However, P.W.2 did not believe him and sent a notice through his counsel. The allegation against the revision petitioner and two other co-accused is that they, with the common intention of cheating the Repatriate Co-operative Finance and Development Bank, forged a loan application purported to have been sent by Viswanathan, P.W.2, and that the revision petitioner forged the signature of the said Viswanathan and induced the Bank to sanction a loan of Rs. 5,000/- and to deliver the amount. The trial court found all the accused guilty, but the appellate court acquitted A-2 and A-3 and confirmed the convictions and sentences imposed on the revision petitioner as state above. The revision petitioner challenges the convictions and sentences.

The loan application which is purported to have been sent by P.W.2 and which is said to have been forged by the revision petitioner and two others is marked as Ex. PI in this case. A reference to Ex. PI shows that the loan applied for was Rs. 10,000. Ex. P1 is dated 24th September, 1971. P.W.I, Ranga Rao, the Managing Director of the Repatriates Co-operative Finance and Development Bank, was examined to prove Ex. PI. He admitted in his evidence that he was the Managing Director from 22nd September, 1972 till 30th September, 1975, On the date of application, he was not the Managing Director and it is in evidence of P.W.I that on the basis of the recommendation of the co-accused, A3, the loan was sanctioned to P.W.2, Viswanathan, by the then Managing Director, R. Parthasarathi. But, this Parthasarathi has not been examined. His evidence also shows that only a sum of Rs. 5,000 was sanctioned as loan in two installments of Rs. 3,000 and Rs. 2,000. His evidence also discloses that a bond purported to be by Viswanathan was also executed with one surety. The surety was one Thereza. P.W.1''s evidence further shows that the bond was executed in the presence of A-2, Swamysankar who was then the Assistant of the bank. What emerges from the evidence is that a sum of Rs. 3,000 was paid in cheque and the cheque was drawn in the name of Viswanathan on the Indian Bank, Coimbatore, and the second instalment of Rs. 2,000 was also paid by means of a cheque on the Indian Bank. Coimbatore. As there was no recovery of the loan, the Field Officer of the Bank, Ranganathan, P.W.3, was deputed to notify the case and effect collection P.W.3, made an enquiry and his enquiry revealed that Viswanathan does not reside at No. 10/45, Ranga Konar Street, Coimbatore-9, the address furnished in Ex. Pl. He later found that the said Viswanathan was working in Hindusthan Photo Films Factory at Ooty. He examined Viswanathan who stated that he never applied for any loan from the Bank and that he never became a member of the Bank. P.W.3 submitted a report, Ex. P7, and on that report, P.W. 1 sent a complaint to the Deputy Commissioner of Police (Crimes), Madras. Ex. P8 is the complaint.

The complaint shows that one, Viswanathan, a repatriate, applied to the Repatriate Co-operative Finance and Development Bank for a loan of RS. 5,000 on 24th September, 1971. (This is factually wrong, because the application shows that the loan applied for was Rs. 10,000 but what was recommended and sanctioned was only Rs. 5,000). The complaint also shows that the revision petitioner and two other accused have each played their part to cheat the Bank. It is further seen from Ex. P8 that the loan bond was executed by Viswanathan and the revision petitioner and P.W.-6, Bakkiam, attested as witnesses and Theresa, one of the members of the Bank, stood as surety. The third accused, Kalyanam, has recommended the loan. It is clear from his evidence (he was examined as D.W.I) that he recommended the loan only for RS. 3,000 but the Managing Director raised it to RS. 5,000. It is therefore, clear from the evidence adduced that the loan was sanctioned after due enquiry by A-3 and the loan bond was executed in the presence of A2 by one, Viswanathan. It is also seen from the evidence of P.W.4 that Viswanathan has opened an account in the Indian Bank. Ex. P12 is the "opening account card" and P.W. 4 categorically states that the Accountant before whom the account was opened is working as Manager in the Indian Bank at Kumbakonam. But, this Accountant was not examined by the prosecution. It is also seen from Ex. P12 that Viswanathan was introduced by the second accused. Therefore, the loan application sent by Viswanathan was processed and enquired into by A3 who recommended a loan of RS. 3,000 which was later raised to Rs. 5,000 by the Managing Director and a loan bond and also a hypothecation agreement were also executed by the said Viswanathan. P.W. 6 and the first accused have attested as witnesses and Theresa has also stood as a surety. It should be noted that Theresa has not been examined by the prosecution and P.W. 6 who has been examined now says that he signed only in the printed blank form and denied the suggestion that he signed as a witness after Viswanathan has signed in Ex. P4. The reason he gave for signing the bond without the executants signing it is that A1 promised him a loan. It appears to me that P.W.6 is not a truthful witness and much reliance cannot therefore, be placed on his evidence. It is not the case of the prosecution that some one other than Viswanathan impersonated before A2 and before P.W. 6. No person has seen A1 signing the loan application, Ex. Pl. There is no direct evidence that A1 has forged the signature of Viswanathan.

Reliance was placed on the evidence of the Handwriting Expert. The Handwriting expert has stated that the signature in Ex. P10 series were marked by him as S 1 to S 36 and the signatures in Exs. P1, P3, P6, P4 and P5 were marked by him as Q1 to A24. Ex. P 10 series are the specimen signatures of P.W.2, Viswanathan, taken by the investigating officer on 8th April, 1975. The application, Ex. P1, was dated 24th September, 1971. The disputed signatures were marked as Q1, Q5 to Q10, Q17 and Q19 to Q24. The Handwriting Expert''s evidence is that the person who wrote S 1 to S 36 in EX.PIO series did not write the signatures Q1, Q5 to Q10, Q17 and Q19 to Q24. It should be noted that the investigating Officer has taken the specimen signature of P.W. 2 only on 8th April, 1975 and has not obtained any document containing the signature of P.W.2 made at or about the time when Ex. P1, the application, was made. It would be dangerous to rely on the signature of P.W. 2 obtained during the time of investigation, more particularly when a suggestion was thrown to P.W.2 that he having obtained the loan, is now saying that he has not applied for loan in order to avoid repayment of the loan. It is also in evidence of the Handwriting Expert, P.W.7, that the writing of a person may vary due to lapse of years. We are not having any admitted signature of P.W.2 at or about the time of the application, Ex. P1, in order to satisfy by our own observation whether it is safe to accept the opinion of the Expert or not. Except the evidence of the Expert, there is no other evidences to show that the revision petitioner could have forged the signature of Viswanathan. Further, it should be noted that the learned Sessions Judge in appeal has acquitted the co-accused of the charges under S. 420, read with S. 34, I.P.C. and of the charges under S. 471 read with S. 34, I.P.C. The prosecution case depends upon the proof of forgery of the loan application in the name of Viswanathan and the proof of forgery in Ex. P4 and P5 and also Ex. P12. As regards forgery by the revision petitioner, there is hardly any proof that it was the revision petitioner who forged the signature of Viswanathan, P.W.2. The Sessions Judge made a faulty approach in entirely depending on the evidence of the Handwriting Expert, which is opinion evidence to convict the revision petitioner of the offences with which he is charged. He failed to note that it would never take the place of substantive evidence. In my view, it would not be safe to convict the revision petitioner solely on the evidence of the Handwriting Expert. The benefit of doubt should be accorded to the revision petitioner. The revision is, therefore, allowed, the conviction and sentence are set aside and the revision petitioner is acquitted of all the charges leveled against him.