Kishan Chand vs State of Punjab

B.S. Yadav, J.

This judgment will dispose of the above titled Revision Petition as well as Revision Petition No. 586 Basant Singh v. State of Punjab, 603 Kashmir Singh v. State of Punjab, 604 Avtar Singh v. State of Punjab, and 605 Gurbachan Singh and another v. State of Punjab all of 1983, as all of them arise out of the same judgment.

The prosecution case in brief is that there was one Cooperative Society by the name of Shapur Amargarh Cooperative Agriculture Society Ltd. (for short the Society). Petition Gurbachan Singh was working as Cashier in the Society while petitioner Balkar Singh and Surat Singh (acquitted accused) were the members of the Managing Committee. Petitioner Basant Singh (of Revision Petition No. 586), was its Secretary, Petitioners Kashmir Singh (of Revision Petition No. 603) and Avtar Singh (of Revision Petition No. 604) were posted in the relevant days as Cashier and Manager, respectively, in Gurdaspur Central Cooperative Bank Ltd. Gurdaspur, at its Kalanaur Branch (for short the Bank). Petitioner Kishan Chand and Harbans Lal (of the present Revision Petition) were posted as Inspector and Sub Inspector, Cooperative Department respectively and the Society fell in the jurisdiction of their control.

On 13.8.1974, Gurbachan Singh, Balkar Singh, Surat Singh and Basant Singh as members of the Managing Committee of the Society passed a resolution for the purchase of fertilizer worth Rs. 30,800/ for distribution to its members. On the strength of that resolution, those four persons demand from Exhibit PB for Rs. 30,800/ in the names of some members, including Tara Singh PW7, Piara Singh PW8, Kartar Singh PW9, Piara Singh PW18 and Puran Singh son of Mangal Singh. Petitioners Kishan Chand and Harbans Lal endorsed the demand from Exhibit PB. Later on the demand was reduced to Rs. 29,200/ on the ground that one of the loanees, i.e., Puran Singh had field. That correction purports to have been made on 14.8.1977. The correctness is attested by Harbans Lal petitioner. On 16.8.1974 PW2 S.K. Salwan, then Registrar of Cooperative Society, recommended that demand form in the following terms :

"Recommendation of the Inspector is accepted."

On the basis of this demand from first authority letter Exhibit P.24 for Rs. 30,800/ (also referred in the evidence as advice) was got issued from the Bank. It was signed by Avtar Singh and Kashmir Singh. On the basis of this authority letter, Gurbachan SIngh petitioner lifted fertilizer worth Rs. 30,800/ vide form F.F. VII (Exhibit P.26) from Dharwal Zimidara Cooperative Marketing Society from Dhariwal on 17.8.1974. Pawan Kumar was in those days working as Manager of the Dhariwal Society while Malkiat Singh was its salesman.

All the petitioners connived with each other. Later on, on its basis of the same demand from, the above members of the Managing Committee of the Society obtained other letter of authority Exhibit P.25 from the Bank for Rs. 29,200/. It was also signed by Kashmira Singh and Avtar Singh in their official capacity. On the basis of that authority, Gurbachan Singh petitioner lifted fertilizer worth Rs. 29,200/ vide form F.F. 7 (Exhibit P.27) on 21.8.19971 from the Dhariwal Society. When this fraud came to the notice of S.K. Salwan, P.W.2, he made the complaint Exhibit to the Senior Superintendent of Police, Gurdaspur on its basis formal First Information Report, Exhibit PA/1 was recorded in police station, Dhariwal, District Gurdaspur. In the complaint, many persons including the petitioners, were alleged to have been involved in this fraud. During the investigation, it was further found that Tara Singh PW.7, Piara PW8, Kartar Singh PW9, Khazan Singh, PW.14, and Piara Singh PW18 have not signed or thumb marked the demand form Exhibit PB. After completion of the investigation, the above petitioners along with Surat Singh were chargedsheeted. Pawan Kumar, Manager of the Dhariwal Society had also been arrested during investigation but later on he died.

All the accusedpetitioners, when examined under Section 313, Code of Criminal Procedure, denied the prosecution allegations. Surat Singh (acquitted accused) did not admit his signatures on the demand form Exhibit PB.

The learned trial Court convicted and sentenced the petitioners including Surat Singh as follows : Gurbachan SIngh, Balkar Singh, Surat Singh and Basant Singh :

(i) Under Section 467 IPC Each to undergo RI for three years and to pay a fine of Rs. 5000/ or in default thereof,the defaulting convict to undergo further RI for two years.

(ii) Under Section 471 IPC Each to undergo RI for three years and to pay a fine of Rs. 5000/ or in default thereof,the defaulting convict to undergo further RI for two years.

Kishan Chand, Harbans Lal, Kashmir Singh, Avtar Singh

(i) Under Section 467/120B IPC Each to undergo RI for three years and to pay a fine of Rs. 5000/ or in default thereof,the defaulting convict to undergo further RI for two years.

(ii) Under Section 471/120B IPC Each to undergo RI for three years and to pay a fine of Rs. 5000/ or in default thereof,the defaulting convict to undergo further RI for two years.

The convicted persons as well as Surat Singh filed the appeals in all against their conviction and sentences which were heard together by the learned Additional Sessions Judge. He dismissed the appeals qua the present petitioners but accepted it qua Surat Singh, as his signatures on the demand form had not been established.

There is not much dispute as far as the demand form Exhibit PB is concerned. Tara Singh, Piara Singh, Kartar Singh and Khazan Singh. PWs had not signed or thumb marked the demand from Exhibit PB as members in respect of their alleged respective demands of the fertilizer. The demand form was first prepared for Rs. 30,800/ but later on the demand was reduced to 29,200/ on the plea that Puran Singh one of the persons, whose names had appeared in the demand form as one of the loanees had already died.

First I will take up the case of Kashmir Singh and Avtar Singh petitioners, who are officials of Bank. The prosecution allegations against them are that three officers had first issued the authority letter Exhibit P2asking the Dhariwal Society to issue fertilizer worth Rs. 30,800/ through Gurbachan Singh Cashier and subsequently, issued the other authority letter Exhibit P.25 for the reduced demand of Rs. 29,200/. They have been convicted under Sections 467 and 471, both read with Section 120B of the Indian Penal Code. There is no direct evidence of their conspiracy with the members of Managing Committee of the Society or with Kishan Chand and Harbans Lal, officials of the Cooperative Society Department. The Courts below have come to the conclusion that the members of the Managing Committee of the Society were acting in conspiracy not only with Kishan Chand and Harbans Lal with these officials of the Bank also otherwise two letters of authority could not have been issued on the basis of same demand form, Exhibit PB. I am of the opinion that the reasons given by the Courts below for convicting these persons are not forceful. Even if the prosecution evidence is believed that these officers might have conspired with Gurbachan Singh Cashier in issuing two letters of authority, they could not be imputed the knowledge that some persons named in the demand form have not actually signed or thumb marked as loanees or had made no demand.

Further there is no satisfactory evidence to show that authority letter Exhibit P.24 is a genuine document. The signatures of Kashmir Singh on this document have been marked as Q.26 by Handwriting Expert while that of Avtar Singh as Q.27. The expert vide his report Exhibit PX has opined that the signatures marked. Q.27 are of the person who wrote the sample signatures Exhibits A.25 to A.27. Those signatures are of Avtar Singh. About the signatures of Kashmir Singh marked Q.26, he has stated that no definite opinion could be given on the basis of the admitted signatures of Kashmir Singh and some more admitted sample signatures were needed for proper comparison. Thus it has not been established that Kashmir Singh had signed Exhibit P.24. On the basis of the expert, it cannot be conclusively said that it is signed by Avtar Singh also. This authority letter does not bear any despatch number of the Bank. Even in form FF. 27 Exhibit P.26 issued by the Dhariwal Society, the number and date of the authority letter have been left blank but those details are given in the other similar form Exhibit P.27. It is unbelievable that the Dhariwal Society would have issued fertilizer on the basis of Exhibit P.24 when did not bear any despatch number and date of the Bank. The accounts of the Society was checked by Gurdial Singh, Audit Inspector, Cooperative Society on 31.3.1975 i.e. long before the registration of the present case. He wrote letter, photostat copy of which is Exhibit DX, to the Audit Officer, Cooperative Society, Gurdaspur, mentioning therein that in record of the Dhariwal Society, there was no advice of the Bank relating to bill No. 4652, dated 17.8.1974, for Rs. 30,800/. This letter has been proved by DW2 Naranjan Singh, Inspector of Cooperative Society, Dhariwal. In case Exhibit P.24 was in existence, at that time, it is ought to have been produced before the Audit party. It is an admitted case of the prosecution that upto this time credit for 30,800/ relating to Exhibit P.24 has not been demanded from the Bank.

Under the advice Exhibit P.24, the Dhariwal Society is stated to have issued fertilizer worth Rs. 30,800/ to Society through Gurbachan Singh. The signatures of Gurbachan Singh appearing on Exhibit P.26 has been marked as Q.4 by the Expert. It is admitted case between the parties that the said signatures of Gurbachan Singh do not tally with the signatures of Gurbachan Singh petitioner.

It is to be noted that the correction in the demand form Exhibit PB reducing the demand of Rs. 29,200/ was made on August, 1974 by Harbans Lal petitioner. The Assistant Registrar, Cooperative Society PW.2 S.K. Salwan, had made endorsement on the demand form on 16.8.1974. Therefore, the Bank could not have issued the advice for Rs. 30,800/ because before the recommendation by the Assistant Registrar, the demand had been reduced.

Another fact to be noted is that the form Exhibit P.26 issued by the Dhariwal Society for supply of fertilizer worth Rs. 30,800/ is dated 20.8.1974. According to the prosecution that fertilizer had been lifted on 17.8.1974.

In the light of the above observations, I am of the opinion that these has been miscarriage of justice so far as Kashmir Singh and Avtar Singh petitioners are concerned and, therefore, their revision petitions are liable to be accepted.

The above observations also apply to Kishan Chand and Harbans Singh, who are officials of the Cooperative Department. There is no evidence to show that they knew that the demand from contained some forged signatures or thumb impressions. Admittedly, Gurbachan Singh, Cashier, had been authorised to take the demand form to these officials. When the demand form was brought to them, they recommended it to the Assistant Registrar. They must have returned it back to Gurbachan Singh. When subsequently, they came to know or it was brought to their notice on the next day that Puran Singh one of the person named as a loanee in the demand form was dead, Harbans Lal, under his signature, reduced the demand to Rs. 29,200/ on 14.8.1974. They were not expected to know if the signatures or the thumb impressions on the demand form were genuine or not. It is an admitted case between the parties that the form was put up before the Assistant Registrar after the Assistant Registrar after the correction had been made on it. The Investigating Officer did not make any attempt to find out what happened to the fertilizer which is said to have been taken from Dhariwal Society on 17.8.1974 and whether these officials of the Cooperative Department were in any way benefited by the wrongful lifting of the fertilizer worth Rs. 30,800/ from the Dhariwal Society. Therefore, these persons are also entitled to the benefit of doubt and their Revision Petitions are also liable to be accepted.

As far as Gurbachan Singh, Basant Singh and Balkar Singh are concerned, they cannot escape their liability. They had attested the demand from Exhibit PB. Before attesting it, they ought to have verified if the persons named as loanees had actually signed or thumb marked the demand form or not. I think from the circumstances of the present case, it can be properly concluded that they knew that some of the persons named as loans had not signed or thumb marked that form and as far as those loanees were concerned their signatures or thumb impression were forged. It is futile to argue that Basant Singh. Balkar Singh and Gurbachan Singh signed the form only as office bearers of the Society. It was argued on their behalf that the signatures or thumb impression might be forged but there is no complaint that the fertilizer was not delivered to these persons. This argument has no force. There is no evidence also to show that the fertilizer had been delivered to those persons.

However, I am of the opinion that these persons i.e. office bearers of the Society could not have been convicted under Section 467 Indian Penal Code. Demand form cannot be said to be a valuable security nor it amounted to a document empowering any person to receive any property. At the most they can be held guilty of the offence punishable under Section 465, Indian Penal Code. Therefore, their conviction under Section 467 is liable to be altered to one under Section 465, Indian Penal Code. Their sentence is reduced to one year''s rigorous imprisonment each under that section. Each is also ordered to pay a fine of Rs. 500/ and in default of payment of fine the defaulter is ordered to undergo further rigorous imprisonment for 2 months.

These office bearers of the Society have been rightly convicted under Section 471, Indian Penal Code as they fraudulently or dishonestly used as genuine a document which had been forged in part. Dishonest attention must have been to get more fertilizer and to appropriate the same for their own use. However, the sentence imposed upon each of them under that section appears to be excessive. It is reduced to the extent awarded to each of them under Section 465 Indian Penal Code.

However, considering the fact that by forging the demand from Exhibit PB no wrongful loss has been caused to anybody. I think these office bearers of the Society are entitled to be released on probation as urged. It may be mentioned here that the learned trial Court had framed a charge under Section 406, Indian Penal Code also against these persons but they have been acquitted of that charge. They are first offenders. The case was registered against them in 1976. Since then they are facing the investigation and thereafter the trial. Modern penology leans towards reforming a criminal. No useful purpose would be served by sending these persons to jail where they would come in contact with hardened criminals. Hence, I give them the benefit of Section 4 of the Probation of Offenders'' Act.

For the foregoing reasons, I accept the present Revision Petition as well as the Revision Petitions No. 603 and 604 and the conviction and sentence of these petitioners namely, Kishan Chand, Harbans Lal, Kashmir Singh and Avtar Singh are set aside and they are acquitted of the charges framed against them. The fine, if paid, be refunded to them.

So far as Basant Singh, Balkar Singh and Gurbachan Singh petitioners of petition Nos. 586 and 605 are concerned, their conviction under Section 467 Indian Penal Code is altered to one under Section 465, Indian Penal Code, and their sentence is reduced as indicated above. Their conviction under Section 471, Indian Penal Code is maintained but their sentence is reduced to the extent noticed above. Substantive sentences will run concurrently. However, they are ordered to be released on probation for a period of two years, on each entering into bonds in the sum of Rs. 5000/, with one surety in the like amount and to keep peace and be of good behaviour during that period and to appear and receive sentence when called upon during that period. These petitioners are also ordered to pay Rs. 1500/ each as cost of the proceedings. The requisite bonds be filed within two months from today to the satisfaction of the trial Court failing which they will surrender to their bail bonds to undergo the unexpired period of their sentences awarded to them and as modified by this Court. Revision petitions qua Basant Singh, Balkar Singh and Gurbachan Singh, stand disposed of accordingly.