P.P.MOHANAN vs THE SUB INSPECTOR OF POLICE & ANR

The revision petitioner herein challenges the conviction and sentence against him under Section 409 of the Indian Penal Code in C.C.No. 516 of

2001 of the Judicial First Class Magistrate Court-I, Tirur. He was an Extra Departmental Delivery Agent of the Indian Postal Department, working

at the Vadakkumpuram Post Office. He faced prosecution in the court below under Sections 420 and 419 IPC on the allegation that on

21.03.2000, he misappropriated an amount of Rs.1,500/- sent by money order in favour of one Moideenkutty. The Police registered the crime

much later, on 22.10.2000, on the basis of a complaint made by the Sub Divisional Inspector of Post Offices, Kottakkal. Before making such a

complaint, the postal authorities had made an enquiry, and collected some materials, including the statements of the said Moideenkutty and the

accused. The writings on the money order acknowledgment form, and also the specimen writings given by the accused and the said Moideenkutty

were also sent for comparison to an expert, by the postal authorities. It was after completing such formalities, complaint was filed before the

Police. So, the Police had nothing much to do as part of investigation. The postal authorities themselves assumed the role of the Police, and

collected evidence. Only thereafter, a complaint was filed. Anyway, after investigation, the Police submitted final report in court under Sections

409 and 420 IPC.

The accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against him. The prosecution examined six

witnesses, and proved Exts.P1 to P10 documents in the trial court.

The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., and projected a defence throughout, that

somebody having the same name and address of the defacto complainant might have probably received the amount from him. The accused did not

adduce any evidence in defence.

On an appreciation of the evidence, the trial court found the accused not guilty under Section 420 IPC, and he was acquitted of the said

offence. But he was found guilty under Section 409 IPC. On conviction, he was sentenced to undergo simple imprisonment for one year.

Aggrieved by the judgment of conviction, dated 24.05.2005, the accused approached the Court of Session, Manjeri, with Crl.A.No. 248 of

2005. In appeal, the learned Additional Sessions Judge (Adhoc-I), Manjeri, confirmed the conviction and sentence, and accordingly, dismissed the

appeal. Now the accused has come up in revision, challenging the legality and propriety of the conviction and sentence.

On hearing both sides, and on a perusal of the entire materials, I find that there is no legal evidence or acceptable scientific evidence to prove the

prosecution case. PW1 is the Postal Sub Divisional Inspector who made the complaint in this case. The main witness is PW3 (Moideenkutty). The

prosecution case is that an amount of Rs.1,500/- sent to PW3 by his brother by money order was misappropriated by the accused, without

delivering it to the addressee. The evidence given by PW3 is that his brother had sent an amount of Rs.1500/- to him, but he had not received the

said amount. When cross examined by the defence, he stated that there is another person at the locality with his name and address. It is here the

defence case assumes importance that somebody else having the same name and address of PW3 might have received it wrongly.

The alleged misappropriation was in February, 2000. The evidence of PW1 shows that in February or March, he had received a complaint

from PW3, and accordingly, he made an enquiry, or caused an enquiry. His evidence also shows that he had collected specimen writings and

signature from PW3 and also from the accused. It is not known who authorised him to collect such materials, and send for comparison to the

expert. Instead of making complaint to the Police, and the Police taking necessary steps for comparison scientifically, PW1 himself assumed the

role of the Police, collected necessary materials for scientific examination, and obtained a report from the expert. Ext.P4 is the report of

comparison sent from the office of the Government Examiner of Questioned Documents, Government of India, Hyderabad. Ext.P6 is the money

order acknowledgment card, which contains the writings and signature of one C.P. Moideenkutty. As the delivering officer, the accused has signed

below the signature of the payee. During trial, PW3 stated that the signature on Ext.P4 is not that of his, and he stated that he had not received the

money sent by his brother.

The prosecution mainly relies on the Ext.P4 report to prove the alleged misappropriation. Nobody was examined to prove the expert report.

In view of the evidence of PW3, that there is another person at the locality having his name and address, the prosecution relies very much on the

Ext.P4 expert opinion to prove the case. If the expert opinion is not properly proved in evidence, the accused can avail the benefit of the

statements given by PW3 creating a doubt that there is some other person of the same name and address, and probably that person might have

received the amount.

Ext.P4 report was marked during trial without examining the expert who compared the writings. Such expert opinion will get sanctity under

Section 292 Cr.P.C. without examining the person concerned, only if it is a report obtained in the course of any proceeding under the Code of

Criminal Procedure. In this case, instead of the Police taking necessary steps to collect scientific evidence, PW1 himself did everything, assuming

the role of the Police. The Ext.P4 report was in fact obtained by him without the aid of the Police, and before making complaint to the Police. The

said report can be accepted and admitted in evidence under Section 292 Cr.P.C. only if it is a report obtained by the Police or the Investigating

Agency in the course of any proceeding under the Code of Criminal Procedure. There was no crime or criminal proceeding governed by the Code

of Criminal Procedure when PW1 obtained the Ext.P4 report from the handwriting expert.

This Court has settled the position that in such cases where the report of the expert was not obtained in the course of any proceeding under the

Code of Criminal Procedure, the person who submitted the report or who compared the writings will have to be examined to prove the report and

comparison. In the absence of such evidence in this case, no value can be attached to Ext.P4 report, and it will not get legal sanctity under Section

292 Cr.P.C.. When there is no such evidence, the benefit of the doubt can be given to the accused, in view of the evidence given by PW3 that

there is another person of his name and address at the locality, and probably, the said person might have received the amount. I find that there is no

clear legal evidence to prove the prosecution case beyond reasonable doubt.

In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Section 409 IPC, and accordingly, he is

acquitted of the said offence in revision. The conviction and sentence against the revision petitioner in C.C. No. 516 of 2001 of the trial court,

confirmed in appeal by the Court of Session, Manjeri, in Crl.A.No. 248 of 2005, will stand set aside.