Zafar Hussain And Another vs State Of Uttarakhand

Sharad Kumar Sharma, J

The revisionists are the convict for the commission of an offence under Sections 409, 420 and 471 of IPC, and as a consequence of the culmination of the Criminal Trial, which was registered as Criminal Case No. 1117 of 1999, State v. Zafar Hussain and another, for the aforesaid offences, which was arising from Case Crime No. 107 of 1999 lodged at Police Station, Rudrapur, District Udham Singh Nagar. The revisionists had been convicted by the Court of Chief Judicial Magistrate, District Udham Singh Nagar, by the judgement dated 23rd September 2010, whereby the revisionists have been convicted and directed to undergo an imprisonment of seven years and fine of Rs. 10,000/- has been imposed upon the revisionists for the commission of an offence under Section 409 of IPC. They had also been convicted to undergo two years imprisonment for the commission of an offence under Section 420 of IPC and a fine of Rs. 5,000/- has been imposed upon them, and simultaneously, for the offences under Section 471, the revisionists have been convicted to undergo sentence of one year imprisonment and fine of Rs. 5,000/- has been imposed upon them.

Being aggrieved against the judgement of conviction dated 23rd September 2010, as rendered by the Court of Chief Judicial Magistrate, District Udham Singh Nagar, the revisionists have preferred a Criminal Appeal being Criminal Appeal No. 138 of 2011, Zafar Hussain and another v. State of Uttarakhand, and the learned Appellate Court, of 3rd Additional Sessions and District Judge, District Udham Singh Nagar, too while accepting the propriety of the judgement of conviction dated 23rd September 2010, as passed by the Court of Chief Judicial Magistrate, Udham Singh Nagar, had affirmed the judgement of conviction vide its judgement dated 5th May 2011, thereby convicting the revisionists to undergo the sentence as imposed for the aforesaid offences and for the period, as already referred in the judgement of the trial Court dated 23.09.2010.

It is these two impugned judgements, which have been put to challenge by the revisionists in the present revision. The main issue, which has been raised and argued by the learned counsel for the revisionists in the present revision, it is to the effect that firstly, since the revisionists are not the government servants, whether they can be held liable for the commission of an offence, as levelled against them for commission of offence under Section 409 of IPC. Secondly, the learned counsel for the revisionists submitted that whether the secondary evidence, which was adduced by the prosecution, for the purposes of establishment of an offence against the present revisionists, could be taken into consideration as a primary evidence for prosecuting the revisionist and sentencing him for the offences complained off. Thirdly, it has also been argued by the learned counsel for the revisionists that the Courts below have failed to take into consideration that out of the total witnesses, which were adduced by the prosecution in support of their contention, six witnesses have turned hostile and what would be its effect on the trial. The learned counsel for the revisionists has fourthly contended that despite the opportunities being provided to the prosecution, when they have failed to produce any material witnesses and the Enquiry Officer, Mr. Umesh Chandra, the Sub Divisional Magistrate too hence an adverse inference has to be drawn as against the prosecution in view of the provisions contained under Section 114 (g) of the Indian Evidence Act and in support thereto, the learned counsel for the revisionists has made a reference to a judgement as reported in 2011 (4) SCC 240, S. Siddiqui (Dead) by L.Rs. v. A. Ramalingam.

The learned counsel for the revisionists further substantiated his argument from the viewpoint that in view of the ratio, as propounded by the Hon'ble Apex Court in catena of judgements, particularly those as referred 2004 (4) Criminal Court Case 886 Supreme Court, Inder Mohan Goswami & Another vs State Of Uttaranchal & Others, as well as, in a judgement, as reported in 2007 (4) Criminal Court Case 1005 Supreme Court, Radha Pisharassiar Amma v. State of Kerala, wherein the Hon'ble Apex Court has laid down the proposition pertaining to the attractions of the provisions contained under Section 409 IPC in relation to an offences, which are alleged to be levelled against the accused / convict persons, who are not the public servants.

The learned counsel for the revisionists has also argued that allegation as far as the offence of forgery, as it has been developed by the prosecution against the present revisionists are concurrent, it is not made out on the basis of evidence which was produced by the prosecution in support of their case and hence their conviction which has been made under Section 471 of IPC, is absolutely untenable and cannot be sustained and thus it deserves to be interfered with by this Court while exercising its power under Section 397 to be read with Section 401 of the Code of Criminal Procedure to protect the abuse of process of law Courts.

The brief narration of the facts as it is involved consideration in the instant case are that the revisionists herein, they are the President and Secretary respectively of a Cooperative Society respectively, called as Adarsh Gram Vikas Evam Sikshan Sansthan. As per the set of allegations, which have been levelled against revisionist is to the effect that under the Social Welfare Programme, which was floated by the State Government for the benefit of women community of the State, they were disbursed with certain amount for the purposes of its exclusive utilisation in the various Village Development Programmes for the benefit of the women community, who are residing in the remote areas of the State.

It is contended in the prosecution story as against the revisionists that the amount thus disbursed in favour of the office bearers of the aforesaid Cooperative Society under the Social Welfare Scheme, which the revisionists adorned at that particular point of time. They were levelled with the act of allegation that they have indulged themselves in misappropriating an amount of Rs. 3,95,000/-and Rs. 2,72,000/- jointly, which was disbursed by the State Government for its utilisation in the various projects, which was to be undertaken in the year 1996 in the village Barhaini District Udham Singh Nagar.

According to the prosecution case, it was contended that for the purposes of availing the financial assistance, which was being provided by the State Government under the Village Development Programme, the said amount was got fraudulently disbursed by revisionists and though despite of there being an actual disbursement made by the State Government in their favour, the same was not utilised for the use and purpose of the project, or for the purpose for which it was disbursed as it was proposed to be established at Vikas Khand, Bajpur Kashipur Road near Guest House, lying in village Kela Khera, District Udham Singh Nagar.

Further, it was submitted by the prosecution that under the said development welfare programme of the utilisation of the financial assistance, as extended by the State, for the purposes of putting the project of production of the garments and bags for its sale, it aimed to provide an employment to the poor and socially backwards and unemployed villagers under the Village Development Programme, that too has been misutilised by the revisionists by usurpation of amount disbursed for the social purpose, producing fraudulent bills and securities and consequently, resulting into a total money usurpation to the tune of Rs. 6.6 lakh at the behest of the revisionists. Accordingly, for the said commission of offence, an FIR being FIR No. 1353 / 1998 dated 9th January 1999 was registered against the revisionists by the Project Director, Village Development Programme, District Udham Singh Nagar.

On an investigation being conducted by the Investigating Officer, a chargesheet was submitted against the revisionists for the commission of an offence under Sections 409, 420 and 471 of IPC, being Chargesheet No. 168 dated 27.04.1999 and thereafter the learned trial Court after taking cognizance for the aforesaid offences, as registered against the revisionist, as it would be revealed from the chargesheet which was submitted against them by the Investigating Officer and the charge was framed by the learned trial Court against the revisionists on 1st June 1999 to the following effect:-

प्रथम, यह कि वर्ष 1996-97-98 समय अदम तहरीरवहद वरहैनी ग्राम थाना बाजपुर जिला उधम सिंह नगर में जिला ग्राम्य विकास अभिकरण, उधम सिंह नगर को आबंटित शासकीय धनराशि मुव 2.72 लाख रूप्ये और धनराशि 3.95 लाख रूप्ये का गमन कर आपराधिक न्यास भंग किया गया, इस प्रकार आपने ऐसा अपराध किया जो कि भारतीय दंड संहिता की धरा 409 के अंतर्गत दंडनीय अपराध है एवं मेरे प्रसंज्ञान में है।

द्वितीय, यह कि उपरोक्त दिनांक समय व स्थान पर आप द्वारा उक्त धनराशि मु0 2,72 लाख रूप्ये और धनराशि 3.95 लाख रूपये को छल करके बेइमानी की नियत से लिया गया इस प्रकार आपने ऐसा अपराध किया जो की भारतीय दंड संहिता की धारा-420 के अन्तर्गत दंडनीय अपराध हैं एवं मेरे प्रसंज्ञान में हैं।

तृतीय, यह कि उपरोक्त दिनांक, समय व स्थान पर आप द्वारा मूल्यवान प्रतिभूति, बिल इत्यादि की कूटरचना की गई, इस प्रकार आपने ऐसा अपराध किया जो कि भारतीय दंडस ंहिता की धारा-467 के अन्तर्गत दंडनीय अपराध हैं एवं मेरे प्रसंज्ञान में है।

चतुर्थ, यह कि उपरोक्त दिनांक, समय व स्थान पर आप द्वारा धनराशि को हड़पने के लिये छल के प्रयोजन से कूटरचना की गई, इस प्रकार आपने ऐसा अपराध किया जो कि भारतीय दंड संहिता की धारा- 468 के अन्तर्गत दंडनीय अपराध हैं एवं मेरे प्रसंज्ञान में हैं।

पंचम्, यह कि उपरोक्त दिनांक, समय व स्थन पर आप द्वारा उक्त धनराशि का गमन कर ख्याति को अपहानि पहुँचाने के आशय से कूटरचना की गई, इस प्राकर आपने ऐसा अपराधा किया जो कि भारतीय दंड संहिता की धारा-469 के अर्न्तगत दंडनीय अपराध हैं एवं मेरे प्रसंज्ञान में हैं।

षष्टम्, यह कि उपरोक्त दिनांक, समय व स्थान पर आप द्वारा कूटरचित दस्तावेजों को असली दस्तावेज के रूप में उपयोग में लाया गया, इस प्रकार आपने ऐसा अपराध किया जो कि भारतीय दंड संहित की धारा-471 के अन्तर्गत दंडनीय अपराध हैं एवं मेरे प्रसंज्ञान में हैं।"

In order to substantiate their contention, the prosecution, in support of their case before the learned trial Court, they have produced as many as nine witnesses to substantiate their theory pertaining to the misutilisation or non misutilisation of the money disbursed for the project, which was disbursed to the revisionists under the aforesaid Village Development Programme, which was to be exclusively utilised by them for enforcing the Scheme of Welfare for the women of the interior areas of the State.

The learned Court of Chief Judicial Magistrate, Udham Singh Nagar, while dealing with the Criminal Case No. 1117 of 2019, State v. Zafar Hussain and another, after considering the statements, which was recorded by the witnesses, which were produced by the prosecution before it, though it is an admitted fact that almost about six witnesses have turned hostile, and yet, the trial Court upon considering the evidence of the remaining witnesses who had exhibited and other documentary exhibits, which was produced on record with regards to the registration of the Society with regards to the details pertaining to the disbursement of amount to the office bearers of the Society for its utilisation for the various Uttarakhand Women Development Programme of 1997-1998, and the communication, which was made by Mr K.S. Bora to the District Magistrate, showing the consumption of the amount thus disbursed to the revisionists, the learned trial Court proceeded to record the statements of the revisionists/convicts under Section 313 of the Code of Criminal Procedure.

In the statement thus recorded by the revisionist/convict before the trial Court under Section 313 of Cr.P.C. the present revisionists had specifically denied the set of allegations, as levelled against them in the FIR dated 9th January 1999, and they have contended that the charge which has been framed and subsequently which was partially amended on 17th August 2010, in fact, as per the revisionist, there was no necessity to conduct the trial against the revisionists for the reason that on an appreciation of the evidence and the statement recorded by the prosecution witnesses themselves, it is proved that in the absence of there being detailed evidence being brought on record by the prosecution, the allegations pertaining to the commission of offence under Section 409, as far as the revisionists are concerned, who are working as the office bearers of the Cooperative Society, they would not be treated to be "public servant", who is engaged by the State Government and the Project Director of the Village Development Programme, hence the ingredients of Section 409 IPC was not met out. In order to substantiate his argument, the learned counsel for the revisionists has submitted that if the provisions contained under Section 409 of the Indian Penal Code is taken into consideration which reads as under:-

"409. Criminal breach of trust by public servant, or by banker, merchant or "agent".-Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

The aforesaid offence for the purposes of satisfying the ingredients of Section 409, with regards to the breach of trust or misutilisation of public money it ought to be at the behest of "public servant". Though, as per the provisions contained under Section 409, the bankers, merchant, factor, brokers, attorney or agent, who, if at all, they have committed a breach of trust, would also be treated as to be a public servant for the purposes of being tried for an offence under Section 409 of IPC. Hence, it means that even an agent engaged by the State to discharge a public function for public utilization of money would be treated to be a public servant for the purpose of offence under Section 409 of IPC.

The argument of the learned counsel for the revisionists is that the revisionists will not fall to be within the definition of 'public', servant as dealt with under Section 409 IPC, because they were the office bearers of the Cooperative Society and since it is being a Body elected by the Committee, hence they would not fall to be public servant. Also because the cooperative society, registered and constituted under the U.K. Cooperative Societies Act are separate juristic person, having a status of a separate independent entity, no element of Courts of State or its agencies.

In response to it, the argument, which is extended by learned Assistant Government Advocate Mr. P.S. Bohra to the effect that the revisionists, for the purposes of being tried for the offences under Section 409 of IPC, they would be treated as to be "public servant", for the reason that they had been devolved with an authority by the State, to utilise the public money for a particular state project, which has been provided to them under the various welfare programmes and hence, in such an eventuality, he contends that in the circumstances where they have been entrusted with the financial assistance, that too which is given by the State Government for it being utilised for public social purpose for its effective utilization at the ground level for ensuring an extension of the benefit to the women residing in the interior hills and the villages, they ought to have been taken as to be an agent of the State, hence he submits that the provisions of Section 409 of IPC would be attracted against the revisionist.

In support of his contention, the learned counsel for the revisionists had placed reliance on number of judgements, particularly the judgement as reported in 2009 (11) SCC 737, R. Venkatkrishnan v. Central Bureau of Investigation, particularly reference is made by the counsel to para 146 of the said judgement, whcih reads as under:-

"146. However, Sections 407 to 409 make special provisions for various cases in which property is entrusted to the enumerated categories of persons who commit the offence. Criminal breach of trust by a Public servant is dealt with under s. 409.

"409. Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property shall be punished with imprisonment of life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

This section classes together public servants, bankers, merchants, factors, brokers, attorneys and agents. The duties of such persons are of a highly confidential character, involving great powers of control, over the property entrusted to them and a breach of trust by such persons may often induce serious public and private calamity. High morality is expected of these persons. They are to discharge their duties honestly. The following are the essential ingredients of the offence under this section :

1) The accused must be a public servant;

2) He must have been entrusted, in such capacity with the property ;

3) He must have committed breach of trust in respect of such property."

The learned counsel for the revisionists also placed reliance on a judgement reported in Radha Pisharassiar Amma v. State of Kerala, [2007 (13) SCC 410], which reads as under:-

"16. It is by now well-established principle of law that for the offence under Section 409 , 467 and 471, the existence of mens rea (guilty mind) must be proved. It is on record that the Respondent Nos. 4 to 7 were working as S.T.Os., Devikulam. From the prosecution evidence, it appears that the conspiracy was hatched at Chithirapuram, Primary Health Centre. So far with regard to the offence under Section 467, I.P.C. is concerned, there is no evidence to show that the appellants before us, forged a document which purported to be a valuable security. There is also no evidence that the appellants had knowledge of fact that the allotment letter was a forged letter. Again for an offence under Section 409 it must be proved that the person entrusted with the property, or any dominion over property in his capacity as a public servant committed criminal breach of trust in respect of such property as defined in Section 405, I.P.C. The evidence must show that he dishonestly misappropriated or converted to his own use that property or dishonestly used or dispossessed that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. In the present case, there is no evidence that A-4 to A-7 dishonestly misappropriated or converted to their own use the amount of T.A. On record it is established that A-4 to A-7 are not the beneficiaries of the misappropriated amount."

Reliance is also placed by the learned counsel for the revisionists on the ratio as laid by the case of H. Siddiqui (Dead) by L.Rs v. A Ramalingam, [2011 (4) SCC 240], which read as under:-

"12. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide: The Roman Catholilc Mission & Anr. v. The State of Madras & Anr., AIR 1966 SC 1457; State of Rajasthan & Ors. v. Khemraj & Ors ., AIR 2000 SC 1759; Life Insurance Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491; and M. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712).

The Trial Court decreed the suit observing that as the parties had deposed that the original power of attorney was not in their possession, question of laying any further factual foundation could not arise. Further, the Trial Court took note of the fact that the respondent herein has specifically denied execution of power of attorney authorising his brother R. Viswanathan to alienate the suit property, but brushed aside the same observing that it was not necessary for the appellant/plaintiff to call upon the defendant to produce the original power of attorney on the ground that the photocopy of the power of attorney was shown to the respondent herein in his cross-examination and he had admitted his signature. Thus, it could be inferred that it is the copy of the power of attorney executed by the respondent in favour of his brother (R. Viswanathan, second defendant in the suit) and therefore, there was a specific admission by the respondent having executed such document. So it was evident that the respondent had authorised the second defendant to alienate the suit property."

While extending his contention in support to the first argument, as extended by the learned counsel for the revisionists, it is to the effect that the revisionists will not be falling within the set of offences contained under Section 409 of IPC, because since they being the office bearers of the elected body of the cooperative society, created under a statue, they would be ousted from the purview of Section 409 of IPC in view of the pronouncements as laid down in the aforesaid judgements, which entails and have postulated that for the purposes for levelling of an offence under Section 409 of IPC, an accused person has had to be necessarily a public servant, specifically as defined under Section 21(9) of the Indian Penal Code which is quoted hereunder:-

"Ninth.-- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of 7[the Government], or to make any survey, assessment or contract on behalf of 7[the Government], or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of 7[the Government], or to make, authenticate or keep any document relating to the pecuniary interests of 7[the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of 7[the Government] 8[***];

The learned counsel for the revisionists has drawn the attention of this Court, particularly, to the sub Clause (9) of Section 21 of the Indian Penal Code, which contemplates that for the purposes of determining the powers of an agent who is discharging his duties on behalf of the State he has had to be an officer which falls to be an officer within the ambit of sub Section (9) of Section 21 of the Indian Penal Code.

In order to extract the implications pertaining to the use of word "public servant" under Section 409 to be read with Section 21(9), the argument of the learned counsel for the revisionists being supported by the aforesaid judgements as referred above, he has submitted that even if sub Section (9) of Section 21 of IPC, is scrutinised in its precision, it would mean that the accused for the purposes of Section 409 IPC has had to be an officer of the public, who has been entrusted with responsibilities attached to an office of public or the officer who receives the money to be spent or any property of the State Government to be utilised for a particular purpose which would be falling within the definition of a "public servant" under Section 21 (a) and since there happens to be no direct nexus or lien with the elected office bearers of cooperative society, with the Government, they cannot be treated as to be an "agent", of the government or who had been appointed on behalf of the State Government for enforcement of the benefit of the public welfare scheme and in such an eventuality, in view of the judicial pronouncements, on which the reliance was placed by the counsel for the revisionists, he contends that the revisionists would not be falling within the definition of "public servant", hence the offence under Section 409, cannot be said to be made out against them in the set of allegations, which have been levelled by the prosecution in its evidence, which was adduced before the Court below.

The learned Government Advocate, in support of his contention to the contrary to the argument of learned counsel for the revisionist has referred to a judgement as rendered by the Punjab and Haryana High Court in the case of Rekha Rani v. State of Punjab, [CRR No. 1685 of 2007 (O&M)], as delivered by the High Court of Punjab and Haryana on 21st April 2016, wherein the Punjab and Haryana High Court too while dealing with an identical controversy pertaining to bringing an accused person within the definition of "public servant", has drawn a distinction in the aforesaid judgement, as to upto what extent the agent, as used and defined under Section 409 would mean for the purposes of making an accused person liable for an offence under Section 409. The judgement has restricted its ambit of widening the purview of definition of agent and if possible upto what extent it could be extended.

This Court, after having gone through the aforesaid judgements of Rekha Rani v. State of Punjab (supra), as rendered by the Punjab and Haryana High Court in Criminal Revision No. 1685 of 2007 on 21.04.2016, the Court has held that though it was a matter, which was dealing with an adjudication of a controversy, which was arising out of an award, as rendered under the Arbitration Act, but it was dealing with the impact of determination of ambit upto which an agent and as to what an agent would mean for the purposes of Section 409 of IPC. If the judgement of Punjab and Haryana High Court, dated 21st April 2016, is taken into consideration for the purposes of bringing an accused person within the definition of a public servant, it has laid down that there has had to be direct vesting of an Authority by the State Government to a person to do an act on behalf of the state which has been vested over whom the State directly exercises his control which have to a possessive control of State, both pecuniary and administrative and in the absence of there being any exercise of authority over an agent, who has been sought to be brought within the ambit of definition of public servant, since the State does not exercises the deep, pervasive and direct control nor the accused person has a lien in any public engagements, this Court too is of the view that he will not be falling within the definition of an agent as contemplated under Section 409 of IPC.

The present case is slightly on a different footing than the one referred by the learned Assistant Government Advocate. It is an admitted case that at the time when the offence is said to have been committed i.e. on 19th September 1997, as would be apparent in the present case it is in relation to the utilisation of the public project money, which was floated by the State Government way back in 1996-1997, the disbursement of which was made to the revisionists in the capacity of being office bearers of a registered Cooperative Society to which they were the elected office bearers, which is created under a special statute and enjoy the status of being separate juristic person.

Since the Cooperative Society itself has its different legal entity and is not being directly and under the effective and pervasive control of the State Government nor it has got any financial nexus or control, with the State, hence the office bearers, who are inducted by virtue of an election of a Cooperative Society held as per its byelaws, and they adorn the post of President or the Secretary of the cooperative society, this Court is of the considered view that in view of the pronouncements and the ratios, as laid down by the Hon'ble Apex Court in the judgements, relied by the revisionists, as already referred above, the revisionists would fall to be outside the ambit of the definition of "public servant", and hence the basic essentiality for an offence under Section 409 of IPC cannot be said to be levelled against the revisionists in the absence of they being falling within the ambit of definition of "public servants", as defined under Section 21(9) of the Indian Penal Code.

There is another argument, which has been extended by the learned counsel for the revisionists it is from the viewpoint that the set of allegations, which has been levelled by the prosecution against the revisionists was exclusively based upon a document, which was produced before the learned trial Court as exhibits, as detailed in internal page 2 of the judgement of the trial Court, for the purposes of establishment of an offence as against the revisionists for the offences under Sections 409, 420 and 471 of IPC. What is relevant is that at the time when the trial was proceeding, the prosecution, in support of their contention has produced certain documentary evidences to substantiate their case, but unfortunately, most of the documents, which were placed reliance by the prosecution, were the xerox copy of the various bills and sanctions, which have been accorded and which in accordance with the argument as extended by the learned counsel for the revisionists and also taken as a ground in the revision to the effect that in the light of the provisions contained under Section 114 (g) of the Indian Evidence Act, the secondary evidence it cannot be treated and be taken into consideration for the purposes of establishment of an offence in the absence of the primary evidence being produced and proved and brought on record.

The learned counsel for the revisionists submitted that the entire prosecution story, which has been taken into consideration by the learned trial Court, while rendering the judgement of conviction, as against the revisionists on 28th September 2010, since it was based upon the xerox copy, the same cannot and it ought not to have been taken into consideration in view of the judgement, as reported in AIR 1971 SC 1865, Sait Tarajee Khimchand and others v. Yelamarti Satyam and others, and particularly the reference has been made to para 15 of the said judgement, which is quoted hereunder:-

"15. The plaintiffs wanted to rely on Exhibits A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs' books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiffs."

The learned counsel for the revisionists has also made reference, as well as to the judgement, as reported in 2009 NCC 706, Masauddin Ahmed v. State of Assam, in its para 13, which is quoted hereunder:-

"13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413)."

The aforesaid judgement, which has denounced that the prosecution or ultimate conviction of an accused person, cannot be based on consideration which are based on the appreciation of the documentary evidence which has been placed on record by way of secondary evidence, i.e. by way of xerox copy, which cannot be read in evidence for prosecuting a person in view of Section 114(g) of Indian Evidence Act. Hence in the instant case in the absence of there being primary evidence on record, the conviction cannot be sustained, and deserves to be interfered in the exercise of the revisional powers under Section 397 to be read with Section 401 of Cr.PC.

It has postulated that for the purposes of prosecuting, a person for the purposes of the commission of offence under Sections 409, 420 and 471 of IPC, the documentary evidences or the evidence which do not fall for consideration within the purview of the provisions contained under Section 65 to be read with Section 66 of the Indian Evidence Act, and hence in the absence of compliance of the provisions contained under Section 65 to be read with Section 66 of The Indian Evidence Act, 1872 an adverse inference has to be drawn in relation to the modification adopted by the learned trial Court in appreciation of the evidence in view of the limitations which has been imposed by the provisions contained under Section 114(g) of the Indian Evidence Act, particularly, in support thereto a reference is made in H. Siddiqui's case (supra) where the Hon'ble Apex Court has postulated that the secondary evidence cannot be taken as to be the foundation for the purposes of establishment of the offence against the accused person in the absence of the primary evidence brought on record, to be considered by the learned trial Court for its comparative scrutiny, because it runs contrary to the provisions contained under Section 65 to be read with Section 66 of the Indian Evidence Act and hence it cannot be taken as to be the basis for convicting the person for the offences aforesaid, identical is the situation prevailing in the instant case.

An identical issue about the scope of secondary evidence and its impact of the order of conviction has been settled down in the judgement, as referred by the learned counsel for the revisionists in Sait Tarajee Khimchand's case (supra), (in its para 15 which is quoted above), wherein it has been held that merely on the basis of xerox copy of the document, which was produced on record as an evidence, the person cannot be made responsible or convicted for the commission of offence under Sections 409 and 420 of the Indian Penal Code and hence the offence of misappropriation of public money as alleged by a public servant is not established against the revisionists beyond the comprehension of guilt. In fact, if the two pronouncements, as referred above, in relation to leading of a secondary evidence for establishment of the offences, committed by the accused person, it has been held that it is mandatory on part of the learned trial Court that before deriving any conclusion based on the secondary evidences, on which the reliance has been placed by the prosecution in view of the ratio as laid down by the Hon'ble Apex Court, as rendered in the judgement, as reported in Sait Tarajee Khimchand's case (Supra), it is essential for the trial Court that before drawing any adverse conclusion, there has had to be a comparative scrutiny of evidence which is to be made by the trial Court in view of the ratio, as propounded therein and in the absence of there being comparative scrutiny of the secondary evidence vis-a-vis when the primary evidence, the secondary evidence exclusively itself cannot be taken as to be foundation for the purposes of convicting a person for commission of offences under Sections 409, 420 and 471 of the Indian Penal Code.

On the scrutiny of the judgement of conviction, which is impugned in the present criminal revision, it is apparent that the learned trial Court has not recorded any finding nor considered the impact and effect of 6 witnesses out of total 9 witnesses of the prosecution, having been declared as to be hostile in relation to the establishment of the offences against the revisionists, as referred in the FIR dated 9th January 1999. Hence, in the absence of there being a sufficient and reliable evidence on record, both oral or documentary which was to be taken into consideration in order to support the order before convicting the person for the offences and particularly the foundation of conviction, when it was based on an appreciation of the testimony by way of evidence, adduced by three witnesses only, and that too, when it is based on the exclusive appreciation of the secondary evidences in the absence of primary evidence being brought on record by the prosecution, or being considered by the trial Court, this Court is of the view that in the light of the ratio of the Hon'ble Apex Code already referred above, the commission of offences under Sections 409, 420 and 471 in the present case is being derived by the impugned order under challenge in the revision on the basis of misappropriation or wrongful appreciation of the secondary evidence, which has been produced on record particularly, the fact in relation to pertaining to the status of the present revisionists, as to whether they would be taken as to be the public servants in the absence of there being any material evidence being brought on record and particularly, when it was an admitted case that they are the elected office bearers of a registered cooperative society constituted under Cooperative Societies Act, which has got a different legal status and separate legal entity and different source of existence and the State Government has not been established by evidence to have a deep or pervasive control over the affairs of the cooperative society and hence in view of the reasoning, which has been assigned above, since the revisionists are being held to be not the public servants, the offences under Section 409 cannot be said to have been made out against them and as far as the offences under Sections 420 and 471 are concerned, they will also not be deemed to be established against them because the same is foundationed by the learned trial Court, as well as the appellate Court on an appreciation of the secondary evidence without the same being compared in its scrutiny with primary evidence. Hence, the present criminal revision is allowed, the impugned judgement of conviction dated 5th May 2011, as rendered by the 2nd Additional Sessions Judge, District Udham Singh Nagar in Criminal Appeal No. 138 of 2010, Zafar Hussain and another v. State of Uttarakhand, as well as that of the judgement of conviction dated 12th September 2010, as rendered by the Chief Judicial Magistrate in Criminal Case No. 117 off 2017, State v. and Zafar Husain and Another are quashed. The revisionists are acquitted of the charges and the offences, as levelled against them. Since they are already on bail in pursuance to the interim order, as passed by the coordinate Bench of this Court, granting them bail on 13th May 2011, they need not to surrender and their sureties, as extended by them in support of their bail, would consequently stand discharged.