Sher Singh vs State

G.D. Srivastava, J.—These are two connected appeals arising out of the judgment of I Additional Sessions Judge, Bareilly. Criminal Appeal No. 1628 of 1972 is by Sher Singh while the other appeal is by Shyama Charan, Bhanu Pratap Singh and Ved Prakash. All these four Appellants have been convicted under Sections 408 and 467 IPC read with Section 120B IPC and each Appellant has been awarded a sentence of rigorous imprisonment for four years under each count. Each Appellant has also been ordered to pay a fine of Rs. 3000/- u/s 408 IPC in default to undergo rigorous imprisonment for one year. The two sentences have been ordered to run concurrently.

The case relates to criminal breach of trust in respect of a sum of Rs. 8439.35 paise belonging to the District Cooperative Cane Supply Society, Bareilly. The Society used to purchase sugarcane for supply it to H. R. Sugar Factory, Bareilly. For the purpose of purchashing sugar Cane, the society had opened various purchasing centres, and the instant case relates to Alampur purchasing centre. The supply used to be made in persuance of Sattas that is to say agreements between the cultivators and the Society. It may be useful to give some details about the method of working. The sugarcane brought at the centre used to be weighed in presence of two weighment clerks, one on behalf of the Factory and the other on behalf of the Society. The weight was recorded in the supply ticket and the pass book.

Both the weighment clerks used to prepare their separate weighment sheets. The weighment clerk of the Factory used to prepare parchis in quadruplicate of four different colours bound in books of fifty each and bearing distinct numbers arranged, in serial number. These parchis used to be signed by both the weighment clerks. The first two foils and the pass book used to be given to the cane supplier and they were to be presented for obtaining payment. The third foil was to be sent along with the weighment sheet to the office of the Factory while the fourth foil used to remain in the book itself. The cane supplier used to present the first foil along with his pass book to the Society''s checker who used to make the checking with the help of Society''s ledger and the supplier''s pass book. After this checking, the parchi was to be sent to the payment clerk for final payment. There seems to be no controversy in this case regarding the method of supply and payment.

The dispute in the instant case relates to certain payments which were made between 28th and 30th March, 1966. During the relevant period, Appellant Shyama Charan was the weighment clerk on behalf of the Society, Appellant Sher Singh was the weighment clerk for the Factory, Appellant Bhanu Pratap Singh was the payment clerk while the Appellant Ved Prakash was the checker. Now the prosecution case is that on 3-4-1966, Firozul Rehman, Honray Secretary of the Society received an information that during the aforesaid period some fictitious parchis have been issued on the basis of which wrongful payments have been made to fictitious persons. On receiving this information, he examined the payment sheets, the Parchis and tallied them with the weighment sheets and daily reports. The names of those suppliers were not mentioned in the daily reports. He, therefore, went to Alampur centre on the same date at 4 P.M. and enquired from Appellant Sher Singh about the Parchi books. He noticed that certain Parchis were missing from book Nos. 4466, 4447 and 4469. The total number of the missing parchis was found to be twenty one. Parchi book No. 4470 was found to be missing as a whole. The Secretary, therefore, prepared an inspection note and on 5-4- 1966 he sent a report to police station Kotwali, on the basis of which a case was registered. The investigation was taken up by Sub-Inspector M. M. Khan who looked into the various records, recorded statements of the witnesses and took in custody some of the relevant documents. On 28-6-1968 the investigation was taken up by Sub-Inspector Yad Ali of the S. I. S. who submitted charge sheet on 30-11-1969.

A number of witnesses were examined by the prosecution to prove different parts of the prosecution story. Asharfi lal (PW 1), Ram Bharose (PW 2), Angnu (PW 3), Ram Charan (PW 5), Brij Bhoosan Lal (PW 9), Ali Ahmad (PW 6), Din Dayal (PW 10), Anokhe Lal (PW 11) add Roop Ram (PW 16) were examined to prove that the names of suppliers as mentioned in the parchis were fictitious and that no persons bearing such names really existed. Among the employees of the Society and the factory are the statements of Devi Das (PW 7), Rameshwar Dayal Saxena (PW 8), Kishan Lal Kapoor (PW 12), Paras Ram (PW 13), Rameshwar Singh (PW 14), Shyam Swaroop Jauhari (PW 15), Jai Shanker (PW 17), Shiv Nandan Pd. (PW 19) and Firozul Rehman (PW 22). Sri Shiv Ram Singh (PW 23) is the handwriting expert who examined the writing on the disputed parchis and compared them with the admitted writings of Appellants Shyama Charan. He came to the conclusion that those parchis had been written by Shyama Charan. The rest of the oral evidence is more or less of a formal nature.

All the Appellants admitted that they were holding the said posts in the Society and the Factory during the aforesaid period. Appellant Shyama Charan denied having written the disputed parchis and challenged the opinion of the Handwriting Expert. Appellant Sher Singh admitted that he had received ten parchi books and he also admitted that on 3-4-1966 Firozul Rehman visited his centre and he found that book No. 4470 was missing and that some parchis were missing from books Nos. 4466 to 4469. He also said that some body had committed theft of the aforesaid parchis for which he had given information to the police. Appellant Bhanu Pratap Singh said that he made the payments when the parchis were passed on to him after being checked, and that he did not know whether the names mentioned in those parchis were real or fictitious. He further said that he used to get his account checked every evening by the head cashier. Appellant Ved Prakash admitted that he checked the parchis marked Exts. Ka-3 to Ka-52, but he did not know whether the parchis were forged or genuine. He also admitted having made entries in the cane ledger Exts. Ka-81 to Ka-85. His main defence was that due to shortage of employees, the work was not up to date and he was instructed by the Secretary R. U. Khan to make the payment and make entry in the ledger because it was possible that entries in the ledger had not been made due to the work falling in arrears. No oral evidence was adduced by any of the Appellants. The learned Sessions Judge came to the conclusion that the parchis in question were in fictitious names and, therefore, payment on the basis of those parchis was wrong and unauthorised. The learned sessions Judge also came to the conclusion that all these Appellants had entered into a conspiracy to obtain wrongful payment in the names of fictitious persons by preparing parchis in the names of fictitious persons and by making fictitious entries in the other relevant documents. In view of these findings, he convicted and sentenced all these Appellants as mentioned above.

As has been noted above, there seems to be no controversy regarding the method of supply and payment. All the Appellants admitted that they were working on their respective posts during the period in question. It may be noted in the beginning that according to the prosecution case, payment was obtained on the basis of seventyone parchis marked Exts. Ka-3 to Ka-73. But so far as the checking of these parchis is concerned it appears that Exts. Ka-3 to Ka-52 were said to have been checked by Appellant Ved Prakash while the remaining parchis Exts. Ka-53 to Ka-73 were checked by some person who had signed as K. Kapoor. It has also been seen above that the books of the disputed parchis were admittedly supplied to Appellant Sher Singh and when the Secretary went for inspection, it was discovered that book No. 4470 was missing as a whole while some parchis were missing from four books nos. 4466 to 4469.

Obviously the first question to be answered will be whether the disputed parchis are in the names of fictitious persons as alleged by the prosecution. The learned Sessions Judge has examined the statements of the various witnesses on this point. As already noted, a number of witnesses were examined to prove that the names mentioned in those parchis are wholly fictitious. The names of the various witnesses on this aspect of the matter have already been noted above and all those witnesses appear to be independent. It was also brought out in evidence that the names of those persons were not to be found in any document and that there was no sattas in their names. It was not the case of any of the Appellant that the Parchis were genuine or that the persons whose names were mentioned on those parchis were really the suppliers of cane to the Society. I, therefore, find nothing wrong with this finding of fact recorded by the learned trial Court.

Now the case of each Appellant has to be taken up separately. It may be observed in the very beginning that the charge of conspiracy cannot possibly be proved by any direct evidence. Conspiracy has to be inferred from various circumstances simply because conspiracy is always planned secretly, and the prosecution cannot be expected to produce any direct evidence. Undoubtedly, this circumstantial evidence should be of such a nature as to lead to a reasonable inference regarding existence of such a conspiracy. It is needless to say that the names mentioned in the parchis in dispute were fictitious and payments having been made on the basis of those parchis, those payments were fraudulent. The only question, therefore, is whether these Appellants or any of them participated in this fraud in order to obtain wrongful payment. Taking up the case of Appellant Shyama Charan first, the statement of the Handwriting Expert (PW 23) is to the effect that Exts. Ka 3 to Ka-73 are in the handwriting of the person who wrote the specimen writing which was taken on 18-12-1968 by H. C. Gupta, Magistrate first class, Bareilly. The writing of these parchis was also compared with three weighment sheets which were admitted by Shyama Charan to be in his handwriting. Thus the testimony of the Handwriting Expert prima facie proves that these parchis Exts. Ka-3 to Ka-73 are in the handwriting of Shyama Charan. It was, however, argued on behalf of this Appellant that opinion of the Handwriting Expert should not be accepted as conclusive without any corroborations. On this point the prosecution examined Ramesh-war Dayal (PW 8) who came forward to state that he was acquainted with the handwriting of Shyama Charan because he had seen him writing. This witness deposed that the parchis in question were in the handwriting of Shyama Charan. So far as the opinion of the Handwriting Expert is concerned, the learned Sessions Judge has held that the opinion was well reasoned and, therefore, acceptable. This part of the judgment was not assailed before me. There is no hard and fast rule laying down that the opinion of a handwriting expert should not be accepted without corroboration. It is only a rule of caution that the Court requires this corroboration simply because opinion is after all an opinion. But at the same time, I may observe that if the opinion is well reasoned, the Court can act upon it even in the absence of any corroboration. Regarding the statement of PW Rameshwar Dayal, it may be noted that the claim of this witness that he had an occasion to be acquainted with the handwriting of Shyama Charan Appellant has not been challenged by the defence. Rameshwar Dayal being an employee of the Society in question, it is naturally expected that he must be getting frequent opportunities of seeing the handwriting of Shyama Charan, and also see him writing. As already odserved, this part of Rameshwar Dayal''s testimony has not been challenged. The only point raised in this connection was that at the investigation stage, this witness did not tell the Investigation Officer that the parchis in question were in the handwriting of Shyama Charan. When the witness was confronted with this omission, he said that he was not, in fact, questioned in this regard. Assuming for the sake of argument that at the investigation stage, the witness did not say that these parchis were in the handwriting of Shyama Charan, it is a mere omission.

This cannot be a ground for discrediting the testimony of Rameshwar Dayal. Obviously this witness had no motive to falsely implicate the Appellant, and no motive was suggested to him. It was also not suggested to the witness that he was not acquainted with the handwriting of Shyama Charan. Thus there should be no reason to doubt the veracity of Rameshwar Dayal in this regard. In this manner, the opinion of the Handwriting Expert stand, corroborated, I, therefore, think that the trial Court has rightly concluded that the parchis in question are in the handwriting of Shyama Charan.

Coming now to the case of Appellant Sher Singh, the prosecution case is that this Appellant was in the custody of the parchi books and, therefore, this offence could not have been committed without his connivance. Appellant Sher Singh admitted that the books in question were given in his custody and when PW 22 Firozul Rehman checked the five books in question on 3-4-1966, he found that book No. 4470 was missing as a whole while twentyone parchis were missing from four books Nos. 4466, 4467, 4468 and 4469. He prepared an inspection note, a copy of which was given to Sher Singh. This part of the prosecution story has been admitted by Appellant Sher Singh to be correct. Now the argument of the learned Counsel of this Appellant was that the missing parchis and the missing book could have been very easily stolen without the knowledge of Appellant Sher Singh because he could not be expected to keep a watch over them all the twentyfour hours. It was also argued that even during the process of weighment, Appellant Sher Singh might have gone out for a few minutes and during this short interval, it could be possible for anybody to commit theft. It is to be found in the statement of Firozul Rehman that the Factory had got erected a hut for the safe custody of these books and during the absence of the clerks, A Chaukidar remained posted at the centre. It cannot, therefore, be said that no arrangements for the safety of the records had been made. During day time, Appellant Sher Singh being in the custody of these books, he was expected to take all precautions in this regard. It was very well known how important these books were. It may be said that at the most Sher Singh might be held to be guilty of negligence. But in addition to this, there are circumstances which go to show that in all probability, Sher Singh was also a participant in the preparation of these false documents. Devi Das (PW 7) deposed that Sher Singh told him that all the five books in question had been taken away by the Secretary Firozul Rehman. This was a wrong statement because book No. 4470 was missing and was never handed over to Firozul Rehman. The statement given by this Appellant in the committing Court appears to be most damaging. In that Court he said that these book had been stolen and he had given information of this theft to the police. This statement naturally means that even before the visit of Firozul Rehman, the Appellant knew about this loss and if there is nothing on record to show that this Appellant had made any report to the police or had informed any other superior officer, the only conclusion will be that the Appellant had knowledge of this loss and even then he did not inform anybody. In other words, this would go to support the prosecution allegation that this Appellant was a participant in the conspiracy. To Firozul Rehman, Appellant Sher Singh did not tell that these parchis and one book had been stolen. He simply said that one book was missing and untraceable. Once it has been held that the parchis are in the names of fictitious persons, it will automatically follow that they are false documents, and were prepared by Appellant Shyama Charan with the connivance of Appellant Sher Singh.

Coming now to the case of the remaining two Appellants, namely, Bhanu Pratap Singh and Ved Prakash it has been seen above that the former was the payment clerk of the Society while the latter was the checker of the Society. The question is whether there are circumstances to show that these two Appellants were also participants in this conspiracy. Regarding payment clerk it is obvious that he was not expected to make any enquiry as to whether the payment was being made to the right person or not. Once the parchi is brought to him after being passed, he could not refuse payment on any ground unless there be anything in the parchi itself to raise a suspicion that it was not genuine. It is to be found in the statement of PW 15 that the payment clerk has to make the payment after looking into the parchi which has been checked and the pass book. The witness further said that whoever possesses the checked parchi and pass book would be entitled to take payment because the checked parchi was in the nature of a bearer cheque. Thus from the statement of PW 15, it is proved that it was not the duty of the payment clerk to enquire as to whether the person holding the checked parchi was the real payee or not. In order to convict this Appellant, the learned Sessions Judge has relied on two circumstances. Firstly, it has been said that column No. 9 of the payment sheet was meant for obtaining the signature of the grower, but none of the payment sheets, Exts. Ka-74 to Ka-80 bore the thumb impression or signature of any cane supplier. Secondly, it has been said that the thumb marks on the various parchis were either blurred or faint. On the basis of these two circumstances it was concluded that the payment was fradulent. None of these circumstances was put to Appellant Bhanu Pratap Singh to give him an opportunity of explaining the absence of thumb marks on the payment-sheets or the nature of the thumb marks on the parchis. If no such opportunity was given, there was no justification for considering these circumstances as incriminating. There is no evidence on record to show that the thumb impressions on the parchis are blurred or faint. None of the witnesses was questioned on the point. It is, therefore, a circumstance which is based on the learned Sessions Judge''s own observation. In my opinion, the conclusion arrived at against this Appellant on the basis of these two circumstances cannot be said to be justified. There is nothing else to show that the payment made by this Appellant was fradulent or that the payment was made inspite of the knowledge that the parchis were in the names of fictitious persons. On the other hand, if the parchis were presented before him after being checked, he was entitled to presume that they were genuine.

Appellant Ved Prakash was the checker of the Society. From the statement of PW 8 it would appear that the checker of the society was expected to check the parchi with reference to the ledger. The witness has not referred to any other document with reference to which this checking was to be done. The evidence also does not indicate what other method was to be employed by the checker for checking the parchis. This ledger is to be prepared on the basis of the calender as stated by PW 8. Now the defence of Ved Prakash is that he did refuse verification of the parchis when they were not found in the ledger, but he was instructed by the Secretary Firozul Rehman to pass those parchis with the help of the pass books and make entries in the ledger because it was just possible that the ledger might be incomplete due to late bounding. In support of this plea, reference was made to a parchi Ext. Ka-42. This particular parchi was brought by a cultivator and when the checker refused to pass it, the cultivator took it to Shri R. U. Khan who made an endorsement on the parchi that if the amount is due it should be paid. It is admitted that there used to be arrears in the preparation of ledger. At least regarding one parchi Ext. Ka-42, it has been brought out in evidence that its payment was authorised in case the amount was due, otherwise the payment of this parchi could have been refused merely on the ground that it did not find place in the ledger. The learned Sessions Judge has made an assumption that the ledger could not have remained in arrears for two months. Before the checking of the checker of the Factory, there was one other link, namely, checking by the Factory with the help of the third foil and the weighment sheet. There is nothing on record to show that the weighment sheet and third foil of these parchis were received in the Factory or not and if they were received, who checked them. This link in the prosecution story, is missing. As already noted, the checker of the factory was required to check the parchis only with reference to the ledger. The statement of Jai Shanker (PW 17) that inspite of the endorsement on Ext. Ka-42 payment should have been refused and no entry should have been made in the ledger appears to be unbelievable in these circumstances. In respect of one set of parchis Exts. Ka-53 to Ka-73, it was said that they have been checked by one K. Kapoor. But the prosecution was unable to find out who this K. Kapoor was. For these reasons, the case against Appellant Ved Prakash also appears to be doubtful.

In the result, Criminal Appeal No. 1628 of 1972 is dismissed. The conviction and sentence of Appellant Sher Singh under the various Sections is up-held with the modification that the fine is reduced to Rs. 1000/-. Criminal Appeal No. 1640 of 1972 is allowed in part. The conviction and sentences of Appellant Shyama Charan are upheld with the modification that the fine is reduced to Rs. 1000/-. This fine should be paid within two months from the date of receipt of the record by the Court concerned. In case of default the punishment shall be rigorous imprisonment for six months. These two Appellants are on bail and shall be taken into custody to serve out the sentences imposed on them. The fine, if realised, shall be paid to the co-operative society in question. The conviction and sentence of Ved Prakash and Bhanu Pratap Singh are set aside. They are on bail and need not surrender.