Sridhar Jena vs The State

B.K. Patra, J.—The Appellant was prosecuted on charges under Sections 420 and 467, Indian Penal Code in the Court of the Assistant Sessions Judge, Keonjhar and was convicted only u/s 467, Indian Penal Code and sentenced to undergo rigorous imprisonment for four years and four months and to pay a fine of Rs. 500/-, and in default, to undergo rigorous imprisonment for a further period of 13 months. The charge against him is that on or about the 23rd of November, 1962, he forged a certain document, namely, a contingent bill amounting to Rs. 427.52 ps. with the intent to cause the Sub-Treasury Officer to part with this amount and thereby committed an offence punishable u/s 467, Indian Penal Code.

The Appellant was at the material period a clerk attached to the Anandapur hospital which is under the administrative jurisdiction of the Civil Surgeon at Keonjhar. Under orders of the Civil Surgeon, the Bengal Chemical and Pharmaceutical Works, Ltd., Calcutta supplied medicines worth Rs. 427.52ps. to the Medical Officer, Anandapur as per Invoice No. 4153 dated 16-3-1961. The Company thereafter sent the bill to the Medical Officer, Anandaapur who after making necessary verification of the medicines supplied forwarded the same to the office of the Civil Surgeon for payment. On receipt of the bill, a Bank draft for the same amount was sent to the Firm on 5-4-1961. Thus nothing further was due to the Firm on account of the medicines supplied to the Anandapur hospital Admittedly, however, a contingent bill for Rs. 427.52ps. purporting to have been prepared in the office of the Civil Surgeon, Keonjhar and to have been signed by him in clearance of the bill for the said amount previously presented by the Bengal Chemical and Pharmaceutical Works, Ltd. was presented and encashed at Anandapur Sub-Treasury on 23.11.1962. The bill bore on the face of it an endorsement to the effect that the amount of the bill should be paid to p.w. 5, the peon attached to the Anandapur hospital and admittedly p.w. 5, presented the bill in the Sub-Treasury and received the payment. It is the prosecution case that this contingent bill Ext. 2 was prepared by the Appellant, that he had forged the signature of Sri R.N. Mallik, the Civil Surgeon thereon, that the endorsement authorising p.w. 5 to receive the amount of the bill purporting to be under the signature of the Civil Surgeon was also forged by the Appellant, that it is the latter who handed over the bill to p.w. 5 for encashment, and that p.w. 5 after receiving the amount from the Sub-Treasury handed over the amount to the Appellant. All these allegations are denied by the Appellant, his case being that this bill ext. 2 was received from the Civil Surgeon�s Office, Keonjhar and was presented in the Sub-Treasury by p.w. 5 who had been authorised by the endorsement appearing on the bill to receive payment and that p.w. 5 made over the amount to the Medical Officer, Anandapur p.w. 4 and the receipt of the amount was duly accounted for in the Cash Book of the hospital-vide endorsement in Ext. 20 series. It was, however, discovered that this amount of Rs. 427.52 ps. Was overdrawn and thereafter the Medical Officer, Anandapur entered into correspondence with the Civil Surgeon and under the latter�s instruction the amount of Rs. 427.52ps. was credited in the Sub-Treasury on 22.12.1962.

The entry Ext. 8 in the Cash Book, maintained in the Anandapur hospital shows that on 23.11-1962 an amount of Rs. 427.52ps. was received from the Sub-Treasury, Anandapur. This entry is duly signed by Sri N. Parija, p.w. 4, who at that time was the Medical Officer in charge of the Anandapur hospital. The subsequent entries in the Cash Book show that this amount of Rs. 427.52ps. was being shown as balance in the Cash Book till 22.12.1962 when it was shown as having been redeposited in the Sub-Treasury. It is not disputed that this amount of Rs. 427.52ps. was redeposited in the treasury on 22-12-1962. It may be stated here that on 23-12-1962, p.w. 4 was on casual leave and doctor Nikunja Bihari Das p.w. 8 was in temporary charge of the hospital on that day. He, however, did not know anything about the drawal of this amount. Although p.w. 4 was on casual leave that day, the relevant entry in the Cash Book on the, date 23-12-1962 had been signed by him. The subsequent entries till 22-12-1962 which show this amount of Rs. 427.52ps, as balance in hand also bear the signature of p.w. 4. These entries therefore show beyond any doubt that at no point of time between the encashment of the contingent bill in the treasury till the amount of Rs. 427.52ps, was redeposited in the treasury on 22-12.1962 the money was in possession of the Appellant and that throughout this period, this amount has been accounted for in the Cash Book of the hospital.

It is against this background that the evidence against the Appellant has to be considered. During investigation, the disputed bill was sent to the hand-writing expert p.w. 13 for his opinion along with certain admitted writings of the Appellant and the admitted signatures of the Civil Surgeon. p.w. 13 has deposed in Court that in his opinion, the contents of the bill are in the hand-writing of the Appellant and that the signatures on the bill purporting to be those of the Civil Surgeon are not genuine. Relying on the evidence of the hand-writing expert and of p.ws. 5 and 9, the learned Judge has found the Appellant guilty.

p.w. 5, as already stated, is a peon attached to the hospital at Anandapur. The endorsement on the bill purporting to be under the signature of the Civil Surgeon had authorised him to receive payment from the Sub-Treasury. His signature on the bill also purports to be attested by the Civil Surgeon. He has deposed that he had never gone to the Civil Surgeon�s office at Keonjhar and that he had put his signature on the bill as directed by the Appellant who had handed over the bill to him for encashment in the Sub-Treasury. Assuming for a moment that all that p.w. 5 has deposed is correct, still that is not inconsistent with the defence case that the disputed bill had been received from the Civil Surgeon�s Office, Keonjhar. To disprove that the bill was sent from the Civil Surgeon�s office, the prosecution relies on the belated production of the Issue Register of that office showing that no such bill was ever Bent to the Anandapur hospital. If Ext. 2 is not a genuine document, one would not expect that any entry relating to its despatch from the Civil Surgeon�s office would be found in the Issue Register. The defence set up is not inconsistent with the theory that somebody else might have prepared the bill and sent it to Anandapur hospital for encashment. At least such a possibility cannot be ruled out. There is nothing in the evidence of p.w. 5 to show that it is the Appellant who had manufactured this document or that it is in his hand-writing.

p.w. 9 is a pharmacist attached to the Anandapur hospital and he says that Exts. 2 to 25 which are some of the writings on the disputed bill are in the hand-writing of the Appellant. He does not Bay that he had seen the Appellant writing them. Doubtless when a Court has to form an opinion as to the person by whom any document was written or signed, Section 47 of the Evidence Act provides that the opinion of any person acquainted with the hand-writing of the person by whom it is supposed to be written or signed is a relevant fact. But the explanation to that section makes it clear that a person can be said to be acquainted with the hand-writing of another person:

(1) when he has seen that person write, or

(2) when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or

(3) when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. The evidence of p.w. 9 does not show that he had been the Appellant writing or that he had ever received documents written by the Appellant or that the Appellant was ever submitting any papers written by him for his scrutiny. An that, he has stated is that he had on some occasions seen the Appellant practising the signature and initials of Shri R.N. Mallik, the Civil Surgeon, Keonjhar. But p.w. 9 had never informed the Civil Surgeon about it. Assuming however, that the Appellant was practising the signature of the Civil Surgeon that would have helped the prosecution case if the expert had opined that the signatures appearing on the disputed bill and purporting to be those of the Civil Surgeon are actually in the band-writing of the Appellant. The expert has not said so. All that he says about the signatures is that they are forged and that it is not possible to say as to who had forged them. The evidence of p.w. 9 therefore, is not sufficient to establish that the writings on the disputed bill are in the hand-writing of the Appellant.

There then remains the evidence of the hand-writing expert p.w. 13. He has compared the writings on the disputed: bill with certain admitted writings of the Appellant and has opined that both are in the hand-writing of the same person. He has given elaborate reasons in support of his conclusion. To a question in cross-examination he replied that he was not prepared to file in Court the statement of reasons recorded by him on the basis of which he had finally opined that the disputed writings are in the hand-writing of the Appellant. It was suggested to him that the statement of reasons would disclose several dissimilarities between the admitted and the disputed writings. Although he denied the suggestion still for reasons best known to him he declined to file the statement in Court. That apart, it is well settled that though the opinion of the band-writing expert is relevant in view of Section 45 of the Evidence Act on the question of band-writing of a person, it is not conclusive unless corroborated by clear and direct evidence or circumstantial evidence. According to the learned Government Advocate, such corroboration is afforded by the evidence of p.ws. 5 and 9, I have already discussed the evidence of these two witnesses and I am satisfied that their evidence is not sufficient to arrive at a finding that the writing is in the hand of the Appellant.

There is another important circumstance in this case which the learned Judge in the Court below has failed to take into account and which, in my opinion, throws considerable doubt on the truth of the prosecution case. It is clear from the evidence discussed above that immediately after the disputed bill was encashed in the Sub-Treasury, the amount of Rs. 427.52ps. mentioned thereunder was shown in the Cash Book of the hospital and was thus duly accounted for. From 23-11-1962 till 22-12-1962 when the amount was again credited to the subtreasury, this amount was shown in the Cash Book as balance in the bands of the hospital authorities. Everyone of these entries has been signed by the Assistant Surgeon in charge of the hospital (p.w. 4). It is not the prosecution case that p.w. 4 was In league with the Appellant and no suggestion was even made to him that during this period, that is, between 23-11-1962 and 22-12.1962, this amount was not in the cash box of the hospital. It is, therefore, clear from this that the Appellant far from misappropriating the amount drawn under the disputed bill had no occasion even to temporarily utilise this amount. The question, therefore, naturally arises &s to why the Appellant should have at all taken the grave risk of forging a bill and causing it to be presented in the Sub-Treasury when he did not stand to gain anything by such transaction. Apart from the inherent weakness in the prosecution case already discussed, this circumstance, in my opinion, throws considerable doubt regarding the guilt of the Appellant.

In the result, I would allow this appeal, set aside the conviction of the Appellant and the sentences imposed on him and direct that the bail bond executed by him be cancelled.