State by Public Prosecutor vs Mrs. Poonam Jain

M.N. Moorthy, J.—Mrs. Poonam Jain faced a trial before the Third Metropolitan Magistrate, George Town, Madras, in C.C.No.3055 of

1977 for an offence under Ss. 471, I.P.C., and 420, I.P.C., read with S. 511, I.P.C., in that, on or about 5th August, 1973 at Madras, she

fraudulently used as genuine a forged Tamil Nadu Raffle Ticket bearing No. M.N. 105040 and thereby attempted to cheat the Government of

Tamil Nadu by claiming the first prize of rupees one lakh. The learned Magistrate found her not guilty of both the charges and acquitted her.

Aggrieved by the said order of acquittal the State has preferred this appeal.

The prosecution has examined five witnesses to prove the case against the accused. For the 77th draw of the Tamil Nadu Raffle, tickets were

issued to several agents. Ticket No. M.N.105040 was allotted to one A.M. Krishnaswami Chettiar, Tamil Nadu Raffle Ticket Agent, Ooty.

P.W.3, another agent of Tamil Nadu Raffles purchased the said ticket from A.M. Krishnaswami Chettiar and sold it. The said ticket is marked as

Ex.P2 in this case which bears the rubber stamp of P.W. 3.

The 77th draw of the Tamil Nadu Raffles was held on 11th July, 1975 at Rajaji Hall, Madras Ticket No. MN. 105040 secured first prize of

rupees one lakh. The accused claimed the prize amount of rupees one lakh through the Punjab National Bank, New Delhi Branch, for which she

sent Ex.P1 application along with Ex.P2, the ticket and Ex.P6 a cash receipt. P.W 1, Senior Accounts Officer in the Director of Tamil Nadu

Raffles, scrutinised Ex.P2 and found the first digit ''O'' from the right side was not free from doubt. Hence he sent it to the Director of Stationery

and Printing, Madras, for examination and opinion.

P.W.2, Assistant Works Manager in the Office of the Director of Stationery and Printing, Madras, examined Ex.P2 under microscope and

opined that excepting the last digit ''O'' the rest of the ticket is genuine. Ex.P2 was subsequently directed to be sent to the Director of Tamil Nadu

Forensic Science Laboratory, Madras, for further examination. It was sent along with Ex.P4 requisition for verification. P.W.4, Document Expert,

examined Ex.P2 and opined that the first digit ''O'' from the right side of the number 105040 has been made after mechanically erasing and altering

the original figure and that the original erased figure could not be deciphered. Ex.P5 is the true copy of his opinion. After the receipt of Ex.P5, a

complaint Ex P3 was sent by the Director of Tamil Nadu Raffles to the Commissioner of Police, Madras. P.W.5, the Sub Inspector of Police,

attached to the Central Crime Branch, Madras, registered a case against the accused under Ss. 420, 468 and 471, I.P.C. He examined P.Ws.1 to

4 and others and after completing investigation, laid the charge-sheet against the accused on 26th February, 1977.

On the incriminating pieces of evidence against the accused, when she was questioned under S. 313 , Crl.P.C., she stated that Ex.P2 is a

genuine ticket and that she presented it through the Punjab National Bank, Madras 1 for payment. She further added that she did not know

whether the raffle ticket has been forged. No witness was examined on her side. The trial court, on the evidence adduced before it by the

prosecution, found the accused not guilty and acquitted her. Hence, the appeal by the State.

The prosecution case is that the last digit ''O'' from the right side in Ex.P2 has been made after mechanically erasing and altering the original

figure, and original figure could not be deciphered. In other respects, Ex.P2 is a genuine Tamil Nadu Raffle Ticket issued for the 77th draw. The

evidence of P.W.2 is that he scrutinised Ex.P 2 with a microscope. The quality of the paper, code number, colour and water mark tallied with the

genuine raffle ticket, but the last digit ''O'' from the right side of the number in Ex.P2 is suspicious. According to P.W.2, it appears to be a little

merged with the other digits and this could be seen only with a microscope. According to P.W.2, it appears to be a little merged with the other

digits and this could be seen only with a microscope. According to P.W.1, he scrutinised Ex.P.2 and felt a doubt about the last digit ''O'' and so,

he sent it for examination.

The important piece of evidence relied on by the prosecution is that of P.W.4, Document Expert. According to him, the last digit had been

mechanically erased and altered in the original figure. He opined that the mechanical erasure can be made by any sharp instrument like knife or

eraser or by a rubber. He admits that he was not able to find any disturbance of fibres under the first digit. Disturbance of fibres is usually present

when a sharp instrument is used to erase a digit. Coming to the erasure by a rubber, the evidence of P.W. 4 is that if a typewriter rubber is used,

erasure may be more visible to the naked eye, and there should be some visible disturbance of fibres under the writing resulting in reduction of the

thickness of the paper.

The learned counsel for the accused relied on a passage in M.K. Metha''s ""The Identification of Handwriting and The Cross Examination of

Experts"" (Third Edition) at page 296, which runs thus:

Erasures may be made either by some mechanical process or by a chemical process. Mechanical erasures are made by using a rubber, knife or a

razor blade. Mechanical erasures can usually be detected easily, because any such erasure will necessarily remove and raise up some of the fibres

of the paper and the surface of the paper at that particular spot will become rough and its thickness will be reduced appreciably. The paper will

naturally lose its original sizing. This effect can well be observed if the paper is examined in oblique light or if it is placed to the edge of a shaded

lamp so that the light grazes the surface of the paper. It is not an easy task to remove completely an inked writing by a mechanical process,

because such erasure will damage the paper surface to a considerable extent and it may also tear the paper, therefore, some remnants of the prior

writing usually remain.

In the case of mechanical erasure of writing, especially of ink, there should be disturbance of fibres of the paper under the writing that was

erased and also the thickness of the paper will be reduced considerably and the surface of the paper at the spot where the erasure has been made,

will become rough. Examining Ex.P2, one is not able to note these symptoms. In fact, even P.W.4 hat admitted that the right side of the paper

underneath the first digit is no thinner than the paper underneath the second digit. If mechanical erasure, especially of ink writing has been made and

is placed against light and observed, the light will be coming through the spot stronger, because of the disturbance or removal of some of the fibres,

of which the paper is composed, due to mechanical erasure. Even this test conducted on Ex.P2 does not make it as if the last digit has been

mechanically tampered with.

Regarding the erasure by a sharp instrument or rubber, the learned counsel for the accused relied on a passage from Mr. L.C. Nickols ""The

Scientific Investigation of Crime"" (1956) at page 315 which runs thus:

Since paper consists of a mass of fibres comparatively losely felted together some of the particles of writing material may be under the surface

fibres or may be pushed under them by the action of the eraser. A method which will reveal these particles will reveal the original writing. Infrared

light has a limited power of penetrating organic materials of which paper is one. An infrared photograph will, therefore, show up the original writing.

In certain circumstances no particles will remain in the fibres and therefore the Infrared photograph is negative; it is impossible to decipher the

writing in these cases.

Ex.P2 is printed in Rotary Printing machine and the ink that has been used is the special ink. Undoubtedly, it would have been helpful if infrared

photograph of the area of erasure had been taken and that might have shown the original digit and thereby establish beyond doubt that the present

digit has been a forged one after the erasure of the original digit.

The learned counsel for the accused cited the decision reported in In re S.A. Sattar Khan AIR 1939 Mad, 283 for the proposition that the

value of an opinion given by an expert depends to a large extent upon the materials put before him and the nature of the questions that are put to

him. The criticism that an expert speaks from an impregnable fortress hardly holds good. Experts are always ready to explain the reason for their

opinions. The Courts are entitled to attach little or no importance to their evidence if the explanations given are not satisfying.

The learned counsel for the accused also relied on the decision reported in Crown Prosecutor v. Gopal Malayathan AIR 1941 Mad 551

wherein the learned Judge held that a court is not bound to accept the evidence of an expert even though there were no special reasons for not

accepting it, that while dealing with the evidence of an expert, the Court should ask the expert to explain in Court the reasons for his opinion and

that it is only after hearing those reasons in detail, that the Magistrate should express his opinion whether or not the expert''s opinion is satisfactory.

A Supreme Court decision reported in The Crown Prosecutor Vs. Gopal alias Malayalathan, is placed before me by the learned counsel for

the accused to show that it is unsafe to base a conviction solely on expert opinion without substantial corroboration and this type of evidence, being

opinion evidence, is by its very nature, weak and infirm and itself forms the basis for a conviction.

Placing reliance on the above decisions, the learned counsel for the accused argued that it is unsafe to base a conviction on the evidence of

P.W.4 alone. When questions of technical or scientific nature come up for determination, the courts cannot be expected to be sufficiently familiar

with such matters to form their own independent opinion and arrive at a conclusion without the aid of skilled persons. Acceptance, of course,

depends on the grounds and the reasons as well as the unequivocal character of the evidence let in. The court can scrutinise, sift and test it. Of

course, there is nothing in law which makes a Judge surrender his judicial discretion to the opinion of an expert. He has to weigh the pros and cons

and come to his own independent assessment in the matter.

There is another circumstance in this case for consideration. Ticket No. 105040 is sold at Ooty by P.W.3. The ticket contains P.W.3''s rubber

stamp. The authorities concerned, after the draw was made, paid the bonus for the agents concerned for selling the ticket which fetched the first

prize. There are no rival claimants in this case. If Ex.P2 is a forged ticket, there should be a genuine ticket. Whoever is in possession of it should

have made a claim on it. That is a very strong circumstance in favour of the accused. No doubt, it has been brought to my notice that some of the

prize winning tickets have not been produced before the authorities for collection of prize but, it should be remembered that when the accused

produced the ticket Ex.P2 claiming the first prize, it could not be said that she would not have anticipated a claim from the genuine ticket holder if

Ex.P2 is a forged one. The learned Metropolitan Magistrate has sifted the evidence produced before him very carefully and found that the

prosecution has not proved the case against the accused beyond reasonable doubt. Even if 1 am inclined to take a different view on the evidence,

this is not a sufficient ground for setting aside the order of acquittal. The view taken by the trial court is also a plausible one. Applying the principles

laid down by Their Lordships of the Supreme Court in Ganesh Bhavan Patel and Another Vs. State of Maharashtra, . I do not think this is a fit

case where my interference is warranted in an appeal against acquittal.

In the result, the appeal filed by the State is dismissed.