Mendi Ram Boro vs State (CBI)

P.C. Phukan, J.—This is an appeal preferred against the judgment and order dated 10-6-1995 passed by the learned Special Judge. Assam, Guwahati in Special Case No. 11 of 1987 convicting the accused appellant Medhi Ram Boro under Sections 120-B/409/477-A/468, IPC and Section 5(1) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947 and sentencing him to one year''s R.I. and also to pay a fine of Rs. 250/- in default, to further 1 month''s Rule 1 under each count of the charge except u/s 120-B, IPC.

I have heard Mr. S. Medhi, learned counsel for the appellant and Mr. D. Das, learned Special Public Prosecutor, CBI assisted by Mr. L. N. Upadhaya, learned counsel.

The prosecution case in brief is that the accused No. 1 Shyam Lal Sharma was serving as SDO, Phones and accused No. 2 Mehi Ram Boro the present accused appellant was Office Assistant (clerk-cum-cash-ier) in the office of the SDO, Telephones, Panbazar, Guwahati in the year 1984. Rajeswar Singh and Sadhan Chandra Dey were the drivers of the office of the SDO. Telephones, Panbazar. They used to look after the minor repairing and servicing, local purchase and both of them used to receive money in advance either from the accused No. 1 or the accused No. 2, the present appellant. They obtained cash memos from the firms by putting their own signatures on the cash memos and then submitted the cash memos either to the accused No. 1 or accused No. 2, the present appellant. It is alleged that the accused No. 2 the present appellant manipulated the cash memos, A.C. Bills were used to be put up to the accused No. 1 showing adjustment of the manipulated amounts of the cash memos for passing the amount for payments. The following bills were put up by the accused No. 2 the present appellant before the accused No. 1 for passing bills :

------------------------------------------------------------- Sl. Cash Date Actual Inflated No. Memo Amount Amount ------------------------------------------------------------- 1. 2670 14-8-1984 9.00 19.00 ------------------------------------------------------------- 2. 10151 13-8-1984 7.00 17.00 ------------------------------------------------------------- 3. NIL 14-8-1984 35.00 135.00 ------------------------------------------------------------- 4. 535 28-9-1984 25.00 125.00 ------------------------------------------------------------- 5. 2956 13-6-1984 140.00 240.00 ------------------------------------------------------------- 6. 27415 18-8-1984 59.00 159.00 ------------------------------------------------------------- 7. 39 13-8-1984 30.00 60.00 ------------------------------------------------------------- 8. 2393 23-8-1984 27.00 127.00 ------------------------------------------------------------- 9. 019167 12-6-1984 32.00 152.00 ------------------------------------------------------------- 10. 2578 9-8-1984 108.12 188.12 -------------------------------------------------------------

The C.B.I, investigated the case and on completion of investigation submitted charge-sheet against both the accused persons u/s 120-B/409/467/ 477-A, IPC and Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947. Charges were framed against both the accused persons under the aforesaid sections of law which was read over and explained to the accused to which they pleaded not guilty and claimed to be tried. The prosecution examined as many as 22 witnesses. In their examination u/s 313, Cr. P.C. the accused persons pleaded innocence and declined to adduce any evidence. On consideration of the evidence on record and after hearing the prosecution and defence, the learned Special Judge acquitted the accused No. 1 Shyam Lal Sharma of the charges framed against him, but convicted and sentenced the accused No. 2 Medhi Ram Boro, the present appellant as stated above. Hence this appeal before this Court. The Special Judge discussed the evidence which I have also perused. P.W. 1 Sudhir Kumar was serving as Division Engineer, Planning and Administrative Department. Telephones, Guwahati. He granted Ext. 1 the prosecution sanction against the accused appellant Medhi Ram Boro who was serving as Clerk-cum-Cashier under him in his office. P.W. 1 deposed that he was the competent authority to remove the accused appellant from service and he said "I was satisfied about the necessity of granting prosecution sanction against the accused No. 2 Medhi Ram Boro". He also added "before putting my signature "I have gone through Ext. 1 the prosecution sanction". However, in course of examination he said, "I do not remember if I put my signature on the documents referred to in Ext. 1 nor I remember if I examined the documents referred to in Ext. I. In the same breath he said "I may have examined the documents". In view of the statements made by P.W. 1 in cross-examination Mr. Medhi, learned counsel for the accused appellant, submits that it is not a valid sanction inasmuch as the P.W. 1 said he cannot remember whether he examined materials. In support of his contention Mr. Medhi, learned counsel for the appellant has referred to a decision in Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, Mr. Medhi asserts that the prosecution is to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence by adducing evidence to show that the facts were placed before the Sanctioning Authority and satisfaction was arrived at by it. Mr. Das, learned Special PP, CBI in reply submits that this is not the only way to prove a valid sanction and he has referred to the same decision of the Apex Court to support his contention. The Supreme Court has held -- This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the ground of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. Mr. Das, learned Special PP, CBI submits that in the instant case the original sanction order has been produced and marked Ext. 1 and this sanction order contains the facts constituting the offence and the grounds of satisfaction. On examination of this sanction order, Ext. 1 I have found that the entire facts of the case constituting the offence have been narrated in the sanction order and the Sanctioning Authority has specifically stated that "after careful examining the materials before me in regard to the said allegations and the circumstances of the case, consider that the said Sri M.R. Boro should be prosecuted in the Court of law for said offences." Thus the valid sanction, Ext. 1 has been duly proved in this case irrespective of PW. 1''s statement in his cross-examination. Here also in examination in Chief P.W. 1 categorically said that "before putting my signature I have gone through Ext. 1, prosecution sanction" and that he applied his mind to the necessity in the case for granting sanction for prosecution of the accused No. 2 M.R. Boro and that he was satisfied with the necessity of granting prosecution sanction against the accused No. 2 M. R. Boro. In cross-examination also P.W. 1 did not say that he did not examine the documents. Therefore, I am of the view that the prosecution sanction was valid and does not suffer from any infirmity.

P.W. 2 Kumud Sharma an employee of Frontier Surgical, Panbazar deposed that the (accused) wrote the price of Rs. 7 /- in the cash memo No. 10151 dated 12-8-84 for sale of rolls of bandages and Ext. 2(1) A is the carbon copy of this cash memo of Ext. 2 the cash memo book No. 26. This Rs. 7 was made Rs. 17/-. P.W. 3 Ranjit is a partner of Guwahati Automobile dealing in spare parts. He deposed that Ext. 4 is a cash memo book used for the period from 2-4-1984 to 31-7-1984. Ext. 5 is the original cash memo for selling one set of tie -rod and one piece of head light bulb. P.W. 3 wrote Ext. 5. Ext. 5 shows the price as Rs. 240/-. Ext. 4(1) is a carbon copy of Ext. 5. But Ext. 4(1) the carbon copy of Ext. 5 shows the price as Rs. 140/-. He does not know who wrote the price of Rs. 240/- in Ext. 5. Ext. 7 is the original cash memo dated 18-8-1984. By Ext. 7 one piece of flexible pipe, one piece of head light bulb, one piece of back light bulb and a piece of brake flexible pipe were sold by Ext. 7, Ext. 7 shows the price as Rs. 159/-. Ext. 6(1) which is the carbon copy of Ext. 7 and it shows the sale of price as Rs. 59/- only.

P.W. 4 Arjun Prasad was an employee of M/s. Himatsingka Motor Works Ltd. in 1984. He issued the Ext. 8 the original cash memo dated 28-8-1984 for selling one carburrator and the sale price is shown as Rs. 127/- by over writing done on the original price of Rs. 27/- P.W. 7 was the Junior Engineer in the office of the SDO, deposed that Ext. 15 is the Cash Memo No. 2578 dated 9-8-1984 issued by M/s. Radha Krishna Din Dayal Guwahati for purchase of 3 screw drivers for Rs. 39/-. Ext. 15 shows purchase of 10 screw drivers for Rs. 100/-. Both Rs. 10/- and Rs. 100/- are over written ''figures''. Ext. 15 also shows purchase of 16 testers for Rs. 39/- @ Rs. 12./- per piece. The total price is shown as Rs. 188/- Ext. 16 is the Stock Register about receipt and issue of materials maintained by the store linemen. Ext. 16(1) and 16(3) are the entries about the receipt of materials. Ext. 16(3) contains the entries of material referred in Ext. 15, Ext. 16(1) is the entry about receipt of 3 pieces screw drivers. Ext. 16(2) is an entry of the receipt of another 3 screw drivers. Ext. 16(3) is an entry about receipt of 6 testers. Ext. 17 is a cash memo No. 2670 dated 4-10-84 issued by M/s. Radha Krishna Din Dayal, Guwahati for sale of one piece of brush for Rs. 19/-, Ext. 18 is the cash memo No. 019167 dated 12-6-1984 issued by M/s. Trunk and Bucket Factory, Guwahati. Ext. 18 shows that 2 aldrops were sold for Rs. 32 and 5Kgs Manila rope were sold for Rs. 120/- and for a total price of Rs. 152/-. Figure ''3'' of the figure 32 is overwritten relating to the price of aldrops. Figure 5 seems to be overwritten on ''3'' relating to manila rope. Ext. 16 is the stock Register for materials referred to in Ext. 18, the cash Memo Ext. 19 is the carbon copy of the page 4 of the statement of account maintained in Form ACE-2. The entry relating to Ext. 20 the cash memo is Ext. 19. Ext. 21 is the original of Ext. 19. Ext. 22 is the statement of account relating to Ext. 8. Ext. 23 is the statement of account No. 16 for the period ending on 11-8-84 in the page 3 and it contains entries relating to Ext. 15. Ext. 24 is the statement of account No. 16 for the period ending on 14-8-1984 in the page No. 6. Ext. 26 is the Ext. 26 is the statement of account No. 16 for the period ending on 14-8-1984 in the page No. 7 and it contains entries relating to Ext. 3 the cash memo No. 10151 of book No. 26. Ext. 26 contains the entries relating to Ext. 17 the cash memo No. 2670 dated 14-8-84. Ext. 27 is the statement of account No. 10 for the period ending on 14-8-84 in the page No. 4 and it contains the entries relating to Ext. 18. Ext. 28 is the statement of account No. 10 for the period ending on 14-6-84 in the serial No. 7 and it contains the entries of Ext. 5. Ext. 29 is the statement of account No. 10 for the period ending on 14-8-84, I page 8. Ext. 30 the case memo Ext. 31 is the statement of account No. 20 for the period ending on 30-9-84 in page No. 9 and it contains entries relating to Ext. 32 the cash memo No. 535 dated 28-9-84.

P.W. 11 is an employee of M/s. Radha Krishna Din Dayal and P.W. 5 is the son of a partner of M/s. Radha Krishna Din Dayal, an employee of the shop has given evidence relating to the purchases and cash memos from the firm of M/s. Radha Krishna Din Dayal. P.W. 1 is a partner of M/s. Trunk and Bucket Factory, Guwahati has given corroborative evidence about purchase made from his firm. P.W. 17 is the owner of M/s. Kamakya Auto Electricals, Guwahati says that Ext. 32 the cash memo No. 535 dated 28-9-84 was issued from his shop. Ext. 40(1) is the carbon copy of Ext. 32. He received Rs. 25/- from the work but in Ext. 32 the amount is inflated to Rs. 125/-.

P.W. 10 Vijay Shankar Sharma, a partner of M/s. Frontier Surgical, also has given corroborative evidence about the cash memos of his firm. P.W. 12 Rameswar Sharma, a driver of the office of the SDO. Telephones Guwahati deposed that he used to collect cash either from SDO, Phones or dealing clerk for repair of Jeep No. ASU 4000 and Mini Bus AMZ 3130. The accused No. 1 was the SDO. He used to put his signature on the cash memos before handing over these either to SDO or dealing clerk. He refers about the original price of Rs. 7/- and the altered figure of Rs. 17/-. He refers to Exts. 17, 30, 32 and also alteration of the prices in these cash memos. His evidence is of corroborative nature. PW. 13 states in cross-examination that the figure of Rs. 30/- was inflated to Rs. 135/-. His evidence is of corroborative of the claim of P.W. 11 Rameswar Singh, the driver who says that he paid Rs. 35/- only to Kamala Chitralay. P.W. 18 was the Vigilance Officer in North East Telecom Circle, Shillong deposed that on 26-8-85 the documents mentioned were seized by Ext. 41 the seizure memo from him. The evidence discussed above leads no room for doubt that Exts. 3, 32, 5, 7, 8 and 15 were forged to inflate the respective amounts shown therein with intention to use such documents for cheating. Now the question is who forged these documents. In this regard learned Special Judge acquitted the accused No. 1 with the observations "the accused No. 1 S.L. Sarma recorded u/s 313, Cr. P.C. claims that all the bills are given to accounts clerk who in turn checks the bills and he puts up to the SDO after putting the seal as passed for and paid and accounts clerks are very responsible persons and for the reason accused No. 1 relied very much upon the accounts clerk. He further states that all the bills were signed for onward transmission and in one account there 150 to 200 bills are incorporated in ACE-II bills and it is very difficult and time consuming to go through all the bills minutely. He signed the bills with faith on the accounts clerk. The prosecution evidence adduced nowhere bring out the actual responsibility of the accused No. 1 for scrutiny of the bills when these are put up to him by the accounts section. It can be presumed that accused No. 1 as a forwarding officer merely made the onward transmission to the higher authorities. He refers that about 150 to 200 bills are put up to him every day and he has no scope to make detailed scrutiny. The SDO, Telephones has obviously the other duties relating to the telephone department which are certainly important from the point of view of administration and society. So, it is not unlikely that he may not have the time to go through the cash memos supporting bills and to detect any forgery." The accused No. 2 is the present appellant and was Accounts Clerk-cum-Cashier. The accused appellant in his statements u/s 313, Cr. P.C. admitted that the Exts. 15, 25, 8, 30, 32, 23, 25, 26, 27, 28, 61 and 35 are his writings. The hand writing expert P.W. 21, Dy. Govt. examiner of Questioned Documents, opined that the hand writings in question were of the accused appellant.

As regards the statement of the accused u/s 313, Cr. P.C. Mr. Medhi has referred to a decision in Phusu Koiri Vs. State of Assam, wherein a Division Bench of this Court held that explanation given by accused in respect of vague questions put to accused, who had no real opportunity to explain any particular circumstance against him, cannot be taken into consideration for deciding question of guilt of accused. In the instant case, it cannot be said that the questions put to the accused u/s 313, Cr. P.C. were vague and that he did not have any real opportunity to give an explanation in this regard. Hence, this decision is of no assistance to the accused appellant.

Mr. Das, learned Special Public Prosecutor, CBI has relied on a decision in State of U.P. Vs. Lakhmi, wherein it has been held :

"The need of law for examining the incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicated persons has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminating circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognized defence. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstances appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admission were advanced as a defence strategy."

As regards the evidence of the Handwriting Expert P.W. 21, Mr. Medhi, learned counsel for the accused appellant, submits that the learned special Judge ought not to have convicted the accused appellant on the basis of the uncorroborated evidence of the hand writing expert. Mr. Das, learned Special Public Prosecutor, CBI, however, has referred to a decision in State of Maharashtra Vs. Sukhdeo Singh and another Vs. State of Maharashtra Through C.B.I. Vs. Sukhdev Singh alias Sukha and others, wherein the Apex Court referred to Bhagwan Kaur v. Maharaj Krishan Sharma (1973) 4 SCC 16 : 1993 Cri.LJ 1143 and observed :

"We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized 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, as we indicated earlier, 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 an handwriting expert may be accepted". In the instant case the handwriting expert has recorded convincing reasons and there is no reliable evidence throwing any doubt, and the accused appellant himself in his statement u/s 313, Cr. P.C. admitted his writing in the documents in question.

As regards proof beyond reasonable doubt Mr. Das, learned Special PP, CBI has referred to a decision in the State of West Bengal Vs. Orilal Jaiswal and another, wherein it has been held (paras 14 and 15) :

"Although the Court''s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. The doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter, and in this matter Bater v. Bater (1950) 2 AER 458 : 66 TLR 589, relied on --

"The consequence of the Court can never be bound by any rule but that itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law."

The evidence on record including that of the P.W. 21 the handwriting expert and taking into consideration the statement made by the accused appellant u/s 313, Cr. P.C. admitting that the writings in question were his handwriting and in the facts and circumstances as revealed from the evidence of the prosecution witnesses, the learned Special Judge was justified in convicting the accused appellant under Sections 109, 117, 168, IPC and Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947, I consider that there is no sufficient ground for interference.

It is submitted by Mr. Medhi, learned counsel for the accused-appellant that the appellant is on the verge of retirement and has school going children and does not have any previous conviction to his credit. Having regard to the submissions and the facts and circumstances of the case, the sentence to one year''s rigorous imprisonment is reduced to 3 months'' rigorous imprisonment. The rest of the judgment and order is left undisturbed.

The appeal is dismissed subject to the above modification in the sentence. The accused appellant is now on bail. His bail stands cancelled. He is directed to surrender forthwith before the learned Special Judge to serve out the sentence and to pay the fine, failing which, the learned Special Judge shall proceed against him according to law.

Send down the lower Court records along with a copy of the judgment and order of this Court.