Pijush Deb vs The State

R. Bhattacharya, J.—This appeal is by Pijush Deb who has been convicted by the Judge, Special Court, Calcutta, u/s 5(2) of Act II of 1947 read with section 5 (1) (c) of the said Act and also u/s 467 of the Indian Penal Code. The appeal arises in the circumstances which I shall briefly state. Pijush Deb, the accused, was a Cashier of the Local Office of the Employees State Insurance Corporation, Ghusuri, Howrah. He was in charge of disbursing the Sickness Benefit to insured workers. It is alleged that the accused misappropriated Government money payable to some insured persons as sickness benefit by forging thumb impressions and signatures of the payees and in some cases by forging signatures of the alleged identifiers of the payees. The allegations of the prosecution relate to several instances, six in number, but the learned Judge of the Special Court found the accused guilty in respect of the three instances and we give the following instances as follows:

(1) The accused forged thumb impression of a worker Sk. Cheddi by putting his own right middle finger impression and also forging the signature of one identifier. He did not pay the sickness benefit to the extent of Rs. 61.75 to the worker Sk. Cheddi.

(2) He did not pay the sickness benefit amounting to Rs. 39.87 to the worker G. R. Maity on 14.9.66. He put his own left middle finger impression as the thumb impression of Maity on the docket.

(3) He did not also pay an amount of Rs. 64.75 to one C. Dhan on 29.9.66 although he put his own thumb impression showing as if he paid to the payee.

On the allegations made by the prosecution the following charges were framed:

(1) That the accused being a public servant dishonestly and fradulently misappropriated or otherwise converted to his own use between 7.6.66 and 26.9.66 at Ghusuri a total amount of Rs. 262.18 entrusted to him or under his control to be paid to Bansi Ahir an amount of Rs. 38.81, Sk. Cheddi an amount of Rs. 61.75, G. R. Maity Rs. 39.87, Bistu Pada Das Rs. 27|-, C. Dhan Rs. 64.75 and S. K. Muddin Rs. 30|- towards sickness benefit and without making any such payments falsely showed the amounts as paid and acknowledged by the said claimants mentioned above and thereby committed an offence punishable u/s 5(2) read with section 5(1) (c) of the Act II of 1947.

(2) That the accused on or about 6.8.66 forged exhibit 3 (Payment Docket) purporting to be an acquittance or receipt of Rs. 61.75 alleged to be acknowledged by P.W.13 Sk. Cheddi by putting his own right middle finger impression as payee and signing the name of Tarapada as identifier with intent to commit fraud and thereby he committed an offence punishable u/s 467 of the Indian Penal Code.

(3) That the accused on or about 14.8.66 forged exhibit 4 (Payment Docket No. 137/99) purporting to be an acquittance or receipt for Rs. 39.87 alleged to have been acknowledged by G. R. Maity by putting his own left middle finger impression as payee with intent to commit fraud and thereby committed an offence punishable u/s 467, Indian Penal Code.

The accused pleaded not guilty denying all allegations. He stated that there might have been some bonafide mistakes in the matter of payment. The learned Judge found him guilty u/s 5 (2) of Act II of 1947 regarding Docket Nos. 100|80, 130|99 and 138|110 relating to the insured worker Sk. Cheddi, G. R. Maity and C. Dhar respectively and sentenced him to suffer R. I. for one year. The accused was also found guilty u/s 467, Indian Penal Code, as already indicated, but without any separate sentence.

Mr. Dhar, the learned Advocate appeared on behalf of the appellant in support of the appeal and Mr. Sanyal appeared on behalf of the State.

The first contention raised by Mr. Dhar in this appeal is that the proceeding started against the accused was void ab initio in view of non-examination of the complainant by the learned Judge, Special Court, under the provision of section 200 of the Code of Criminal Procedure. In this connexion he has referred us particularly to two cases, (1) Nirode Baran Mukherjee v. The State, reported in 1976 Cr. L.J. 370, and (2) Shyama Prasanna Das Gupta Vs. The State, . Our attention has been drawn to the recent decision of the Division Bench of this Court in the case of Ram Gopal Kedia and Another Vs. The State, . Mr. Dhar has argued before us that the investigating Officer filed a complaint before the learned Judge, Special Court, and on the basis of that complaint cognisance was taken of the offence by the learned Judge. As the complainant was not examined in view of the decisions referred to by him, the proceeding was bad from the very start. The main question before us is whether the report of the Investigating Officer filed before the learned Judge is a complaint or a police report. Cognisance of an offence can be taken either on a police report or a complaint, according to sub-section (1) (b) or (1) (a) of section 190 respectively of the Code of Criminal Procedure as the case may be. This case relates to the Criminal Procedure Code (old). We have been taken through the document filed by the Investigating Officer, S. C. Datta, Deputy Superintendent of Police, Central Bureau of investigation, Special Police Establishment Division, Calcutta. The investigating Officer has started saying that the document is a report and in the report we rind that he has given several facts and referred to documents which he came across during investigation. Clearly we rind that the said document contains result of investigation and the facts which according to the Investigating Officer constitute instances of offences alleged to have been committed by the accused. Along with the report, the investigating Officer filed a copy of the complaint held by the Officer of the Employees State insurance Corporation With enclosures and original sanction order accorded against the accused by his employer. There is also a list of witnesses the investigating Officer examined and there is also the mention of the case registered on the Police Diary. Considering the nature of document filed by the investigating Officer it cannot be stated that it was a complaint; rather there can be no doubt whatsoever that the said document is the report filed by the Investigating Officer and according to the provision of section 191 (1) (b) of the Code of Criminal Procedure it is certainly a police report in writing and on which the learned Judge was entitled according to law to take cognisance of the offence disclosed in the said report. We have considered the cases of Nirode Baran Mukherjee and Shyama Prasanna Das Gupta. In these cases complaints were filed. Subsequently, however, a Division Bench of this Court has decided in the case of Ram Gopal Kedia v. The State, already mentioned, that the police report filed by the Investigating Officer may not be in a prescribed form and that the report for such technicality may not be deprived of its character as police report. A similar question arose in the case of Dulal Chandra Samanta v. The State (Cr. Apps. 273 & 274 of 1968) recently decided by us on 6.9.77 and we agreed with the principles laid down in case of Ram Gopal Kedia. The question arises in the case before us whether the report or the document filed by the police officer is in fact a police report and we find that it substantially satisfies the requirement of a police report on investigation done in course of the official duty of the police officer. The cases of Nirode Baran Mukherjee and Shyama Prasanna Das Gupta are clearly distinguishable and we respectfully agree with the view taken in the case of Ram Gopal Kedia v. The State. Even if for the sake of argument the document is treated as complaint, the question would be whether non-examination of the complainant, here the police officer, will vitiate the proceeding. In this connexion we can refer to a Division Bench decision of this Court appearing in the case of Anil Krista Das Vs. Badam Santra, . In that case the petitioner was convicted. It was challenged before a Division Bench. The ground was that as the Court below without examining the complainant u/s 200 of the Code of criminal Procedure issued summons against the accused, the proceeding was bad. In that case it was held that mere non-examination of the complainant was at best an irregularity which did not vitiate the proceeding in the absence of any prejudice to the accused. This case was considered by a Special Division Bench consisting of three learned Judges of this Court in the case of Tara Datta v. The State, reported in 1975 (2) C. L.J. 170. In that case the question arose whether non-recording of the presence or absence of the witnesses mentioned in the petition of complaint at the time of examination of the complainant before issuance of summons against the accused would vitiate the proceedings. That was also in connexion with section 200 of the Code of Criminal Procedure. In connexion with the examination of the witnesses or non-examination, the Special Division Bench considered the case of Anil Kisto Das and approved of the decision and the principles followed there. In this view of the matter, relying on the principles land down in the case of Anil Kisto Das, we have no doubt that even if the report of the Investigating Officer is assumed to be a complaint, still the non-examination of the complainant would not matter and if there be at all any irregularity that was curable u/s 537 of the Code of Criminal Procedure In this case we find that the alleged complainant, we mean the Investigating Officer who filed the report, has is fact been examined during trial. We find that there was no occasion for causing any prejudice to the accused while the learned Judge took cognisance of the offence and issued processes against the accused. The first point urged by Mr. Dhar is, therefore, overruled.

The second point canvassed by Mr. Dhar is that in the present case the sanction accorded by the Officer against the accused was not according to law and, therefore, the proceeding was vitiated. His reasoning is that there is no evidence that the sanctioning officer considered all the materials involved in this case before granting sanction for prosecution. P.W. 29 has given evidence regarding sanction. He says that the accused was Class III employee. The Regional Director was his appointing and dismissing authority and the Director General was the head of the Department. Sanction in this case was accorded by the Director General, T. C. Puri. He has stated that the consolidated report about this case was sent to the Director General at Delhi and on perusal of the same sanction was accorded by the said Officer. The order of sanction is Exhibit 1. We have gone through the said order and we find that there are references to all relevant facts involved in this case and we find that the sanctioning officer considered the facts and circumstances of this case and ultimately granted sanction. It is quite clear that he applied his mind to the facts and circumstances and gave his considered order. We find no infirmity in the sanction.

Mr. Dhar lastly dealt with the merits of the case. Let us now consider the evidence against the accused. First of all we will consider the case of Sk. Chedi. Sk. Chedi was an insured worker. For his sickness he filed a certificate for payment of disability allowance. Before dealing with these cases, let us consider, in short, the relevant procedure for obtaining disability benefit. P.W.2 who was the local Manager at Ghusuri of the Employees State Insurance Corporation has described the procedure. We find from evidence that an insured worker is required to go to the panel doctor for treatment in case of illness and obtain a certificate. The insured person is to contact the local office and has to file that certificate. The certificate will be received by the receptionist or the claims clerk of the Office. It will then be diarised and then it will go to the record sorter for the purpose of of bringing out the benefit file of the insured person concerned. The claims clerk will scrutinise the certificate and claims along with other records and if the claim is found to be acceptable, he will prepare the docket wherein relevant amount, rate etc. will be mentioned. Thereafter the docket will be passed along with the file to the Checker. The Checker will check the file and the docket and then he will pass the same to the Manager and the Manager will ultimately pass the claim, if it is found in order and the docket will be sent to the Cashier for payment. The evidence is that the accused was the Cashier in the Local Office at Ghusuri. Regarding the allegation we are now concerned with, the procedure is that at the time of making payment of benefit, the Cashier is to obtain signature of the insured persons as a token of receipt of the amount and in case of illiterate person he should obtain thumb impression of the payee. The thumb impression is to be attested by another literate person known to the payee. Before making any payment the Cashier is to make sure and satisfy himself that the payment is being made to the proper person.

Regarding the case of Sk. Chedi we find the relevant docket which has been marked Exhibit 3. The signature of the accused showing payment has been proved by P.W.2. Sk. Chedi has been examined as P.W.13. He denies to have received any payment in respect of this docket. The attesting witness has been described in the docket as Tarapada where we also find a signature alleged to be his for identifying the payee. Tarapada is P.W.8. He denies the signature and he says that he did not identify Sk. Chedi P.W.23 is a linger print expert. The thumb impression appearing as showing payment to Chedi in Exhibit 3 was examined by P.W. 23 who also examined the impressions of the lingers obtained from P.W.13 and also from the accused. P.W.23 has asserted that the finger impressions appearing as payee''s is the same as the right middle linger punt of the accused taken in presence of P.Ws.22 and 32. We get from the evidence of P.Ws.2 and 6 that the signature appearing as Tarapadas in Exhibit 3 as identifying witness is in the handwriting of the accused known to the said two witnesses. The further evidence is that the accused made entry about the payment in cash book marked Exhibit 15|3 and he also prepared schedules regarding that payment and they have been marked exhibits 9 and 9|1 P.W.29 has stated that in Exhibit 3 Chedi''s insurance number has been wrongly given and the number has been altered and that altered number is that of one Sharam who had at the relevant time ceased to be art insured person at the time 01 payment. The accused during his statement u/s 342 of the Code or Criminal Procedure has stated that the docket (Ext. 3) in respect of Sk. Chedi showed that the finger print of the payee was taken in presence of Tarapada Das. On consideration of the evidence of Sk. Chedi, Tarapada and P.W.23, the finger print expert, the most important and relevant witnesses. We find no doubt to hold that although no payment was made to Sk. Chedi (P.W.13), the accused made false entry showing as if such payment was made. We have also no doubt that he gave his own linger impression on the docket as of it was the Ultimo impression of the payee Sk. Chedi. This was clearly a case of forgery as well besides dishonest misappropriation of the money entrusted to him for payment to insured worker by way of sickness benefit.

Let us new deal with the alleged payment in respect of G. R. Maity (P. W. 17). The relevant docket is Exhibit 4. This witness P. W. 17 can sign his name in Bengali and he denied to nave received any payment. As he did not receive any payment he filed a complaint (Ext. 30) before the authority. In the docket some alleged thumb impression appears as taken of payment. We find that there is no signature or attestation of any witness in respect of that payment. P. W. 17 has denied that he gave any thumb impression in Exhibit 4. P. W. 23, the finger print expert, on examination of the disputed thumb impression and linger prints obtained from the accused has asserted his opinion that the finger impression of the alleged payee in Exhibit 4 is that of the left middle finger of the accused. P.W.2 has proved the signature of the accused showing payment in respect of docket (Ex. 4). The accused himself admitted during has statement u/s 342 of the Code of Criminal Procedure that he gave his signature in Exhibit 4. We also find the schedule sheets and the entry in the cash book made by the accused in respect of the payment. Here also we find that the accused gave a wrong number of G. R. Maity in place of the real insurance number. The accused pleaded that there might have been wrong representation of the payee but that plea is unacceptable in view of his finger print appearing as that of the payee in Exhibit 4, the docket. The accused can give no explanation why his finger print appears as such. In this case also we have no doubt that the accused dishonestly and fradulently misappropriated the money which was to be paid to G. R. Maity and the money was entrusted to him and was under his control for making payment. The accused has clearly made forgery in respect of Exhibit 4 by putting his own finger impression showing that the payee took the money.

Lastly, we come to the case of C. Dhan. He is P.W.19. He is also an insured worker. His number is 992776. There is some finger impression in the relevant docket, namely, Exhibit 6 showing as if the payee was paid. It relates to a payment of Rs. 64.75 on 26.9.76. P.W.19 has denied his thumb impression and also any such payment. We find the signature of one Lalit Mohan as identifier. Lalit Mohan has been examined as P.W.4. He has denied to have given any signature in Exhibit 6. He has stated that he did not identify P.W.19 for the alleged payment. P.W.23, the handwriting expert, on examination of the specimen finger prints of the accused obtained in presence of the witnesses as also the alleged thumb impression appearing as that of C. Dhan has said that the said impression described as C. Dhan''s was the impression of the left middle finger of the accused. During his statement u/s 342, Code of Criminal Procedure, the accused stated that he made payment in the name of C. Dhan but he does not say anything as to what has been stated by P.W.19 C. Dhan. We also get the evidence of P.Ws.2 and 6 that the signature appearing as that of Lalit Mohan Maity in Exhibit 6 was in the handwriting of the accused. Considering the material and most dependable evidence of P.Ws.19, 4, 23 and 2 we have no doubt that in this case also as in previous cases the accused fradulently and dishonestly misappropriated the money meant for C. Dhan lying under his control and left to his entrustment for payment as sickness benefit. We also find that he forged the alleged thumb impression described as that of payee and also the signature of attesting witness. However, we find, may be due to mistake or otherwise, no charge was framed in respect of the docket Ext. 6 as in other cases u/s 467 of the Indian Penal Code. In any view of the matter, we are satisfied on consideration of the evidence on record and the facts and circumstances that the learned Judge of the Special Court below was justified in finding the appellant guilty of the charges as already indicated. Of course Mr. Dhar made an attempt to argue that it might have been that the accused put his own thumb impression on the dockets when he found that he had omitted to take the thumb impression of the persons concerned after payment. This plea was never taken up by the accused in the trial and moreover on this ground the accused could not escape criminal liabilities for forgery in view of our findings already arrived at. Regarding sentence we find that the accused has been sentenced to suffer rigorous imprisonment only for a year for the charge u/s 5 (2) of Act II of 1947 read with section 5(1) (c) of the said Act. This is too meagre a sentence for the offence already committed by hum We find no reason to interfere.

The appeal is, therefore, dismissed. The accused is to surrender to his bail immediately to serve out the remainder of his sentence.

Monoj Kumar Mukherjee, J.

I agree.