Full Judgment Text
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PETITIONER:
BARJURE KAIKHOSROO MAARFATIA
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT16/12/1977
BENCH:
TULZAPURKAR, V.D.
BENCH:
TULZAPURKAR, V.D.
GOSWAMI, P.K.
CITATION:
1978 AIR 434 1978 SCR (2) 479
1978 SCC (1) 596
ACT:
Indian Penal Code Sec. 408, 461, 471 and 477A-Forgery-Crl.
Procedure Code 1973-Powers of High Court to interfere with
order of acquittal.
HEADNOTE:
The appellant was prosecuted under section 471 read with
section 461 and section 408 and 477A of the I.P.C. According
to the prosecution there is a Rosary Cooperative Housing
Society Limited, in Bombay. It owns a building having 48
Rats. Doongaji was elected as the Chairman of the Managing
Committee of the Society. Mr. K N. Singh was working as the
figure-head Secretary of the Society. The Society had a
Bank Account which was operated jointly by Doongaji and K.
N. Singh. One B. A. Sagar was working as the estate Manager
of the Society and he retired due to old age. The
appellant, who was working as Accounts Clerk in Sir Dorabji
Tata Trust was appointed by Doongaji as an Honorary
Accountant of the Society. A bill for Rs. 7.50 was
submitted by M/s A. G. R. Patni & Co. The bill was forged by
adding the figure 160 before the figure 7 inflating the
amount to Rs. 1607.50 in figures without altering the amount
in words. The prosecution case further was that an inflated
voucher/receipt was also brought into existence. The
prosecution case further was that for the sake of
convenience and facility of work a practice was followed in
the Society that at a time about 8 to 10 blank cheques used
to be signed by Doongaji and Singh and these used to remain
with the appellant who used one of such cheques for making
purported payment of- the inflated bill on the strength of
the inflated voucher/receipt but converted to his own use
the proceeds thereof. The prosecution case further was that
the appellant wilfully find with an Intent to defraud
falsified the books of account of the Society, namely, the
cash book by making therein a false debit entry.
The defence of the appellant was that there was no practice
to keep in his custody. the cheque book of the Society
containing blank cheques signed by Doongaji and K. N. Singh.
According to him the amount of Rs. 1607.50 was paid in cash
by him to Sagar P.W. 2 on the instruction from Doongaji.
The Trial Court came to the conclusion that the prosecution
had failed to establish any of the charges against the
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appellant beyond reasonable doubt. The Trial Court observed
that though there was a ring of plausibility and possibility
in the case of prosecution in respect of the charges
levelled against the appellant conviction could not be based
merely on possibilities unless the charges were established
against an accused beyond reasonable doubt.
In appeal, the High Court reversed the acquittal recorded in
favour of the accused and convicted him of all the charges
that were levelled against him. The High Court, however,
imposed only one day’s imprisonment and a fine of Rs.
2000/-.
The appellant contended
(1) The High Court had erred in interfering
with the acquittal,recorded by the Trial
Court. The High Court before reversing the
acquittal should have given cogent reasons for
rejecting the reasoning of the Trial Court.
Reliance was placed on the decision of this
Court in Rajendra Prasad v. State of Bihar.
(2) The entire prosecution case was based on
the theory that about 8 to 10 blank cheques at
a time signed by Doongaji’ and K. N. Singh
used to be kept in the custody of the
appellant. The Trial Court rightly rejected
that theory.
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(3) The Trial Court rightly held that the
reasons which Sagar mentioned why he handed
over the bill of Rs. 7.50 to the appellant
were unacceptable.
The Counsel for the respondent contended
(1) The reasons given by the Trial Court
while recording the acquittal .were clearly
found to be erroneous by the High Court and
High Court had given proper reasons for
reversing such acquittal.
(2) The High Court was right in coming to
the conclusion that the prosecution had
established its case against the appellant
beyond reasonable doubt and therefore, rightly
interfered with the order of acquittal passed
by the Trial Court.
Dismissing the appeal
HELD 1. Rajendra Prasad’s decision related to a case dealing
with direct testimony of witnesses whereas the instant case
could not be treated as a case where direct testimony of
witnesses was required to be appreciated. [487FG]
Rajendra Prasad v. State of Bihar, (1977) 2 SCC 205;
distinguished.
Vasisdeo Kulkarni v. Surya Kant, Bhatt and Anr., (1977) 2
SCC 208; reiterated.
The High Court rightly convicted the petitioner for the
following reasons
(i) It was the duty, of the appellant to
write and maintain books of accounts of the
Society. [488E]
(ii)It was not disputed that Patni & Co. had
submitted the ’bill for Rs. 7,50 and had
received neither Rs. 1607.50 nor Rs. 7.50.
[488F]
(iii)Any one who came across the bill of Rs.
7.50 would have knowledge and reason to
believe that the same was forged. [488G]
(iv)The voucher bore forged signature of
Sagar and forged initials of Doongaji whose
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evidence corroborated the Handwriting Expert’s
opinion. [489A]
(v) There was a practice of both Doongaji
and K. N. Singh signing the blank cheques and
keeping them with the appellant. [491A-B]
(vi)The oral evidence is corroborated by the
documentary evidence.
[492E]
(vii)But for the fact that the blank cheques
were signed beforehand there was no need to
write
under verbal orders of Mr. RDD", in the
counter foil of the cheque book. [492G-H]
(viii)The Trial Court overlooked
important aspect of the case and therefore the
High Court was justified in having a
reappraisal of the evidence and coming to its
own conclusions. [495F-G]
(ix)There was ample evidence to prove that
the appellant bad mis-_appropriated the
proceeds of the bearer cheques after the same
were handed over to him by the peon Shivram
Lad. [496D, 498-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 262
of 1975.
Appeal by Special Leave from the Judgment and Order dated
the 30th September, 1974 of the Bombay High Court in Crl.
A. No. 176 of 1974,
J.P. Mehta, B. R. Aggarwala and P. B. Aggarwala for the
Appellant.
481
M. N. Phadke and M. N. Shroff for respondent.
The Judgment of the Court was delivered by
TULZAPURKAR, J. This appeal by special leave is directed
against the judgment and order of the Bombay High Court
dated September 30, 1974, convicting the appellant-accused
for offences under s. 471 read with S. 467, ss. 408 and 477A
of the Indian Penal Code and sentencing him to one day’s
imprisonment and a fine of Rs. 2,000/and in default to
suffer rigorous imprisonment for six months under s. 408
with no separate sentence for the offences under S. 471 read
with s. 467 and s. 477A I.P.C.
The prosecution case against the appellant-accused may
briefly be stated thus : There is a Rosary Co-operative
Housing Society Ltd. in a suburb of Bombay, It owns a
building having 48 flats of which 23 flats belong to the
well-known Tata concerns. Sir Dorabji Tata Trust holds 3
flats out of these 23 flats. It appears that in view of the
large number of flats held by the Tatas they wanted to have
a representation on the managing committee of the society
and participate in its affairs. One R. D. Doongaji (PW1)
was the General Secretary of Sir Dorabji Tata Trust apart
from his, being a Legal Adviser to Tatas in their Share
Department; on and from November 6, 1964, he after being
elected, was working as a Chairman of the Managing Committee
of the Society. One K. N. Singh, Advocate (PW12) was
working as the figure-head Secretary of the Society. The
Society had a Bank account with Maharashtra State Co-
operative Bank Ltd., which was operated jointly by Doongaji
(PWI) and K. N. Singh (P.W. 12). One B. A. Sagar (PW2) was
working as the Estate Manager of the Society from April 1,
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1967 and he retired due to old age with effect from December
31, 1969, where after one Mathew Figrado (PW7) worked as
Estate Manager. As Estate Manager, Sagar’s duties were to
collect the monthly compensation at the rate of Rs. 100/-
from each flat-bolder of the Society, to look after the
maintenance of the-said building, to undertake-the repairs
after obtaining the oral sanction of the managing committee
and incur expenditure therefor either from the collection of
compensation or from his own pocket, to draw his own salary
and the salary of the staff of the Society from such
collections, and to hand over the balance to the Honorary
Accountant of the Society together with a statement ’of
account and vouchers, in respect of sundry expenses
incurred. However, he was not allowed to spend more than
Rs. 100/- at a time for carrying out the repairs to the
building. The appellant-accused,- who was working as
Accounts Clerk in Sir Dorabji Tata Trust, was appointed by
Doongaji (PWI) as an Honorary Accountant of the Society in
May 1966 and he worked in that capacity for the Society till
July 1, 1970 when his services were dispensed with. As an
Honorary Accountant of the Society his duties inter alia
were to write and maintain the books of accounts (Cash-Book,
ledger, journal and the voucher file), to receive amounts of
compensation collected by the Estate Manager from the
members ,of the Society, to reimburse the Estate Manager by
cheques for sundry expenses which the latter may have
incurred, to pay the municipal
4 8 2
taxes and to make other payments of bills again by cheques
only and that too after verifying from the minute book that
such payments had been sanctioned by the managing committee
of the Society and also to make payments by cheques only
against the vouchers after satisfying himself about the
genuineness of the vouchers. According to the prosecution
in the month of December 1969 a proprietary firm M/s A. G.
R. Patni & Co. had carried out a small job of clearing a
choked pipe line of the storage tank of the Society and had
submitted its bill No. 49 dated December 14, 1969 for Rs.
7.50 (Exh. 5 Colly.). It was received by Sagar (PW2) and was
ordinarily required to be paid by him but it appears that
since he was retiring at the end of December, 1969, he did
not disburse the amount to Patni but handed it over to the
appellant-accused. According to the prosecution this bill
(Ext. 5 Colly.), when it was originally received and was
handed over by Sagar (PW2) to the appellant-accused was, for
Rs. 7.50, the identical amount being mentioned both in
figures and words, but some time later it was interpolated
by adding the, figure of "160" before the figure "7"
inflating the amount to Rs. 1607.50 in figures without
altering the amount in words; in other words, as altered the
bill showed the amount as Rs. 1607.50 in figures but rupees
seven and fifty paise only in words. Further, according to
the prosecution, another document purporting to be a typed
unstamped voucher-cum-receipt dated 3-4-1970 for Rs. 1607.50
(Ext. 5 colly.) connected with and related to aforesaid
interpolated and inflated bill purporting to bear the
signature of B. A. Sagar, Estate Manager (PW2) and the
initials of R. D. Doongaji, the Chairman of the Managing
Committee (P.W.1), came into existence. The prosecution was
unable to say who had actually interpolated and inflated the
bill No. 49 (Ext. 5 colly.) as also who had brought into
existence the aforesaid voucher/.receipt (Ex. 5 colly.) on
which forged signature of Sagar and forged initials of
Doongaji appeared. But the prosecution case was that the
appellant accused fraudulently or dishonestly used as
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genuine the said bin and the said typed voucher/receipt
knowing or having reason to believe that these documents
were forged for the purpose of issuing a bearer cheque for
the said inflated amount and misappropriating the same. The
prosecution story was that for the sake of convenience and
facility of work a practice was followed in the Society that
at a 1 time about 8 to 10 blank cheques used to be signed by
Doongaji (PW1) first and then by K. N. Singh (PW12) and the
cheque-book containing such signed blank cheques used to
remain in the custody of the appellant-accused and whenever
payment was required to be made by cheque the appellant
accused used to write the body of the cheque in his own hand
and make the by issuing the same; that as
regards bill No. 49 of Patni & Co appellant-accused in his
capacity as Honorary Accountant on the basis of inflated
bill as well as the forged voucher/receipt (Ex. 5 colly.)
made use of one of such blank cheques signed by Doongaji and
Singh by issuing a bearer cheque No. 377137 dated 3-4-1970
for Rs. 1607.50 in favour of Shivram A Lad (PW8), Peon in
Dorabji Tata Trust; that Lad withdrew the amount from the
Society’s Bank at the instance of the appellant-accused and
handed it over to him, which the appellant-’
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accused dishonestly misappropriated. The prosecution case
further was that in connection with the above, the
appellant-accused willfully and with intent to defraud,
falsified the books of accounts of the Society, namely, the
cash-book by making therein a false debit entry of Rs.
1607.50. Thus, according to the prosecution, the appellant-
accused on or about April 3, 1970 dishonestly used as
genuine two forged documents, namely, the bill No. 49 dated
December 14, 1969 as well as the voucher/receipt dated April
3, 1970, knowing or having reason to believe them to be
forged at the time of such user that he committed criminal
breach of trust in respect of the sum of Rs. 1607.50and
also falsified the books of accounts of the Society. It
appearsthat in the last week of June 1970, Sagar (PW2)
the retired Estate Manager, complained to Doongaji (PW 1)
that certain amountswhich had been paid by him to the
appellant-accused were not to be found in the books of
accounts of the Society maintained by the appellant-accused,
whereupon Doongaji took Sagar to Professor Choksi, the
managing trustee of Sir Dorabji Tata Trust and in July or
August, 1970 Karsi Gherda (PW11). Controller of Accounts in
Tata Electric Company was requested to look into the
accounts of the Society. Upon scrutiny of the- accounts and
enquiry, which was actually undertaken by Nariman Deboo
(PW6) under the supervision of Karsi Gherda (P.W.11), the
appellant-accused was found to be involved in defalcation of
as many as 8-items including the aforesaid amount of Rs.
1607.50 and a report in that behalf was submitted by Nariman
Deboo (PW6) on the strength of which, after obtaining the
sanction of the Managing Committee of the Society, Doongaji
(PW1) lodged a written complaint (F.I.R. Ext. 12) with the
police on October 17, 1970. The crime was registered by_
the Palton Road Police Station and subsequently the
investigation was taken over by the Crime Branch C.I.D. and
after completion of the investigation the appellant-accused
was charge-sheeted and then committed to the, Court of
Sessions to stand his trial for offences under s. 471 read
with s. 468 (two counts) one in respect of each of the two
documents, the bill and the voucher/receipt, s. 408 and s.
477A. I.P.C.
The appellant-accused abjured-guilt and denied having
committed any of the offences with which he was charged. He
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disputed that there was any practice to keep in his custody
the cheque-book of the society containing the blank cheques
signed by Doongaji (PWI) and K. N. Singh (PWI2) as suggested
by the prosecution or that he bad made use of any such
signed blank cheque by issuing the bearer cheque No. 377137
on April 3,1970 for Rs. 1607.50 for the purpose of
misappropriating the amount as alleged. According to him
the amount of Rs. 1607.50 was paid in cash by him to Sagar
(PW2) on the instructions from Doongaji (PWI) but at that
time he had told Doongaji that a large amount was due by
Sagar to the society and if at all the payment was to be
made to him it should be adjusted against the amount due to
the Society from him. but Doongaji did not accept his
suggestion but insisted that the amount should be paid to
Sagar without any adjustment. The appellant-accused denied
that the bill of Patni & Co. was handed over to him by Sagar
at any time or at about the time when the payment was made
to him at the
484
instance of Doongaji but what was banded over to him was a
bill- cum-receipt of M/s Patni & Co. written in Gujarati
containing the rubber stamp of M/s. Patni & Co., on the
strength of which the payment was vouched but this
Gujarati writing was not forthcoming. Even though he had
made cash payment of Rs. 1607.50 to Sagar under
instructions of Doongaji, he wanted an entry of this amount
in the Bank column of the Cash-Book of the society and this
he did by way of precaution since according to him at
that time a large amount was due to be paid by Sagar to
the Society. Accordingly, he filled in the body of the
cheque and in the presence of Doongaji on the top of the
counter-foil of the cheque he made an endorsement "under
verbal order of R.D.D." He wrote down the name of Lad, a
Peon of J. N. Tata in the body of the cheque. The
Maharashtra State Co-operative Bank was not permitting
the bearer cheque to be cashed unless the Chairman and the
Secretary of the Society gave their signatures on the
reverse of the cheques and since it was difficult to obtain
the signatures of the Secretary Singh, he wrote the name of
Lad as the payee of the cheque while on the counter-foil he
mentioned the name of A.G.R. Patni and Co. because the
payment of Rs. 1607.50 had been made towards the
satisfaction of the bill for that amount to Patni & Co.
by Sagar. His case further was that after Lad cashed the
cheque, Lad gave the amount to him which be kept in the
cash-box; in other words, his defence was that from out
of the cash-box he made cash payment of Rs. 1607.50 to Sagar
on the insistence of Doongaji and then replenished the cash-
box after encashment of the cheque through Lad. He
further emphatically disputed that he had used the
forged bill and forged voucher/,receipt in connection
with the payment of Rs. 1607.50 which he made, to Sagar at
the instance of Doongaji. He also denied that he had
misappropriated the amount or had falsified the cash-book as
alleged and the case of the prosecution being entirely
false he deserved to be acquitted.
At the trial the prosecution led oral as well as documentary
evidence in support of its case. The oral evidence consisted
of as many as 15 witnesses out of whom 7 witnesses were
material, namely, Doongaji (PW1), Sagar (PW2), Abdul Gani
Patni (PW3), Shivram Lad (PW8), Nariman Deboo (PW6),
Kars Gherda (PWll) and K. N. Singh (PW12). At Ext. 5
collectively were produced the two documents, namely,
the inflated bill dated December 14, 1969 and the
voucher-cum-receipt dated April 3, 1970, the bearer cheque
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bearing No. 377137 dated April 3, 1970 in favour of S.A. Lad
for Rs. 1607.50 was produced at Ext. 9 whereas the counter-
foil thereof in the name of M/s A. G. R. Patni and
containing the endorsement "under verbal order of R.D.D."
was produced at Ext. 7; the cash- book containing the
relevant entry for Rs. 1607.50 was produced at Ext. 10
and the F.I.R. lodged by Doongaji on October 17, 1970 was
produced at Ext. 12. One Nand Kumar Parekh, an Hand-writing
Expert and the State Examiner of Documents in the State
C.I.D. was examined who gave his expert opinion that the
purported signature "B. A. Sagar" and the purported
initial "RDD" appearing on the
485
voucher-cum-receipt dated April 3, 1970 (Ext. 5 colly.) were
not in the hand of witnesses Sagar and Doongaji respectively
but were traced forgeries and gave reasons for his said
opinion of course, this was in addition to the positive
evidence of these two witnesses who had stated that the
concerned ’signature and the concerned initial were not
their’s. The learned Session Judge on a consideration of
the evidence on record came to the conclusion that the
prosecution had failed to establish any of the charges
against the appellant-accused beyond reasonable doubt. He
did not accept the prosecution case that signed blank
cheques 8 or 10 at a time used to be kept with the
appellant-accused and did not accept the evidence of either
Doongaji (PW1) or K. N. Singh (PW12) in that behalf, for
according to him, the reasons for resorting to such practice
were not satisfactory. He also took the view that it was
not possible to accept the prosecution case that the
appellant-accused was in possession of the original bill No.
49 dated December 14, 1969 of Patni & Co. and he felt that
defence version bad been rendered probable that the
appellant-accused must have made the payment of Rs. 1607.50
to Sagar at the instance of Doongaji especially as on the
counter-foil of the concerned bearer cheque No. 377137 dated
April 3, 1970 there was an endorsement made by ’the
appellant-accused "under verbal order of RDD"; in other
words, he was inclined to accept the defence case that the
appellant-accused had first paid out cash of Rs. 1607.50 to
Sagar from out of the cash-box and thereafter replenished
the cash-box by issuing the bearer cheque and getting it
encashed through peon Shivram Lad. He observed that though
there was a ring of plausibility and possibility in the case
of the prosecution in respect of the charges levelled
against the appellant-accused, conviction could not be based
merely on possibilities unless the charges were established
against him beyond reasonable doubt and since there were
various circumstances which supported the defence it was a
balancing case, the balance tilting very much in favour of
the accused. He, therefore, gave the benefit of doubt to
the accused in respect of the four charges levelled against
him and acquitted him. Against this acquittal order passed
by learned Addl. Sessions Judge dated September 5, 1973,
the State of Maharashtra preferred an appeal to the High
Court of Bombay being Criminal Appeal No. 176 of 1974. In
appeal the High Court reversed the acquittal recorded in
favour of the accused by the learned Addl. Sessions Judge
and convicted him of all the charges that were levelled
against him by its judgment and order dated September 30,
1974. In particular the High Court accepted the prosecution
case that the practice of keeping 8 to 10 signed blank
cheques in custody of the accused had been satisfactorily
established, that the two documents namely, the bill No. 49
dated December 14, 1960 from Patni & Co. as well as the
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voucher-cum-receipt dated April 3, 1970 were clear forgeries
the distortion and mutilation were with the appellant-
accused a of each, that the two documents were with the
appellant-accused and that on the basis of those two
documents be had purported to make the payment of Rs.
1607.50. The High Court rejected the defence version that
the appellant-accused had first paid cash out of the cashbox
to Sagar as suggested by him or that be bad done so at the
486
instance of Doongaji or that he had issued the bearer cheque
under verbal order of Doongaji as suggested. It found that
the Society had not got so much cash with it on or about
April 3, 1970, that the cash balance on hand with the
Society for quite some time prior to April 3, 1970 was only
Rs. 505.07p; that Sagar’s evidence that he had not gone to
the office in the month of April, 1970 after his retirerment
was acceptable and, therefore, the accused’s version that he
had first paid cash to Sagar and had replenished cash by
issuing and encashing the bearer cheque was utterly false
and he had dishonestly misappropriated the amount. Holding
that the prosecution had established its case against the
appellant-accused beyond doubt, the High Court convicted him
of all the charges levelled against him. However, on the
question of sentence, for certain reasons mentioned by it in
its judgment, the High Court sentenced him to one day’s
imprisonment and a fine of Rs. 2000/- and in default to
suffer rigorous imprisonment for six months. It is this
conviction and sentence imposed upon him by the High Court
that is being challenged by the appellant-accused before us
in this appeal.
Mr. J. P. Mehta, learned counsel for the appellant-accused
has principally raised two or three contentions in support
of the appeal. In the first place he contended that the
High Court had erred in interfering with the acquittal that
had been recorded by the Sessions Judge in favour of the
appellant-accused especially when the Sessions Judge, while
appreciating the prosecution evidence, had given substantial
reasons for not accepting the same and coming to the
conclusion that the defence version was more probable. He
urged that before reversing the acquittal recorded by the
Trial Court, the High Court should have given cogent reasons
for rejecting the reasoning of the Trial Court and that it
was also well-settled that the High Court must be satisfied
that the grounds given by the Trial Court for acquittal were
palpably wrong or manifestly erroneous, shocking one’s sense
of justice and in this behalf he relied upon two decisions
of this Court, namely, Rajendra Prasad v. State of Bihar(1),
and Vasudeo Kulkarni v. Surua Kant Bhatt and Another(2).
Secondly, he contended that the entire case of the
prosecution was based on the theory that blank cheques about
8 to 10 at a time signed by Doongaji (PW1) and K. N. Singh
(PWI2) used to be kept in the custody of the accused which
practice facilitated the commission of the alleged offences,
but the learned Trial Judge had rejected this theory as it
found that the reasons given in support of, this theory by
Doongaji were hardly satisfactory and the theory was, in
fact, contrary to the contents of a letter dated January 20,
1972 (Ext. 59) addressed by Singh to the Chairman of the
Society wherein Singh made a categorical statement that the
cheque-books and all the papers and documents of the Society
were in the custody of the chairman of the Society and the
High Court bad gravely erred in accepting the aforesaid
theory. Thirdly, he contended that the user of the two
forged documents, particularly the bill No. 49 dated
December 14, 1969 from Patni & Co. mainly depends upon
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whether the. said document had been handed over by
(1)[1977] 2. S.C.C. 205.
(2) [1977] 2 S.C.C. 298.
4 87
Sagar to the appellant accused and was with the appellant-
accused on the basis of which it was suggested that the
appellant-accused had issued the bearer cheque (Ext. 9) in
question and the Trial Court had rightly found that the
reasons Which Sagar mentioned why he handed over the
document to the appellant-accused were unacceptable and
therefore his evidence in that behalf had been rightly
rejected and High Court’s finding that the said bill as also
the voucher-cum-receipt were in the possession of the
accused at the material time was contrary to the evidence on
record. Mr. Mehta, therefore, urged that if on these two
principal aspects of the prosecution case, the Trial Court’s
reasoning could not be assailed by the High Court, the High
Court ought not to have interfered with the acquittal of the
appellant-accused as recorded by the Trial Court. Lastly,
he contended that even if it could be said that the defence
version had not been established nor rendered reasonably
probable by the accused or even if the same could be
regarded as false that did not mean that the prosecution
case was proved, for it is well-settled that the prosecution
must succeed on its own evidence which must be clear, cogent
and convincing. He, therefore, urged that the convictions
recorded by the High Court against the appellant-accused
should be quashed and his acquittal by the Trial Court be
restored. Mr. M. N. Phadke, learned counsel for the State
of Maharashtra on the other hand contended that the reasons
given by the Trial Court while recording the acquittal were
clearly found to be erroneous by the High Court and the High
Court had given proper reasons for reversing such acquittal.
According to him if the reversal of the acquittal by the
High Court was based not merely on a reappraisal of the
evidence but on a consideration of several important aspects
of the case overlooked by the Trial Court or if on
appreciation of evidence no two views were possible and the
trial court’s view was erroneous, the interference by the
High Court with such acquittal would be justified and in
that behalf he relied on two or three decisions of this
Court. We may point out that the first ruling (Rajendra
Prasad’s case) relied upon by Mr. Mehta related to a case
dealing with direct testimony of witnesses whereas the
instant case could not be regarded as a case where direct
testimony of witnesses was required to be appreciated and as
such would be strictly inapplicable and as regards the
second decision (Vasudeo Kulkarni’s case) it may be pointed
out that this Court has clearly observed that in appeal
against acquittal the High Court may reappreciate for itself
the entire evidence and reach its own conclusion but when
such conclusion was contrary to. that of the Trial’ Court,
the High Court had a further duty to satisfy itself that the
grounds given by the Trial Court for acquittal were ,
manifestly erroneous and according to Mr. Phadke, the High
Court has at more than one place indicated bow the trial
Court’s reasoning has been manifestly erroneous. The three
decisions on which Mr. Phadke relied are Sham Balu Chaugule
v. State of Maharashtra(1) Jai Ram and other v. State of
U.P. and Another(2) Sarwan Singh & Others v. State of
Punjab(3) in all of which ’the
(1) [1976] 1 S.C.C. 438.
(2) [1976] 2 S.C.C. 191. 9761 4 S.C.C. 369.
488
acquittal recorded by the trial court was interfered with by
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High Court and such interference was confirmed by this Court
and he urged that in the instant case the High Court was
justified in reversing the acquittal and such reversal fell
within the ratio of the said decisions. He contended that
on the prosecution theory of signed blank cheques remaining
with the accused as well as the possession of the two forged
documents being with the appellant-accused, certain
important aspects emerging from the evidence on record of
the case had been completely over-looked by the learned
trial Judge and it was after ignoring such important
aspects that he had rejected the prosecution evidence on
both these points and therefore the High Court was justified
in having a reappraisal of the entire material. He also
urged that the High Court has enlisted numerous
circumstances which rendered defence version totally false,
some of which had been wrongly’ explained away by the,
learned trial Judge. According to him, therefore the High
Court was right in coming to the conclusion that the
prosecution had established its case against the appellant-
accused beyond reasonable doubt and had, therefore, rightly
interfered with the order of acquittal passed by the trial
Court. We find considerable force in the contentions urged
by Mr. Phadke.
At the outset two or three undisputed facts which emerge on
record may be stated. It was not disputed before us that
from May 1969 onwards the appellant-accused was working as
an Honorary Accountant of the Society upto July 1, 1970 on
which date his services as such Accountant were dispensed
with and that as such. Accountant of the society his duties
were to write and maintain the books of accounts of the
Society, to receive from the Estate Manager the collections
made by him from each member of the Society, to credit the
full amount of collection in the bank account of the
society,, to pay municipal taxes and make other payments of
big amounts by cheques only after varifying the minute book
and satisfying himself’ that such payments had been
sanctioned by the Managing Committee and to reimburse the
sundry expenses, which the Estate Manager would incur, by
cheques only. it was also not disputed before us that in
December 1969, M/s. A. G. R. Patni & Co. had submitted
their bill No. 49 dated December 14, 1969 for Rs. 7.50 in
respect of some small job to Sagar, the Estate Manager,
(PW2). It was also not disputed that the said bill when it
was submitted by Abdul Gani Patni (PW3) and when it was
received by Sagar (PW2) the amount thereof both in figures
and words was Rs. 7.50 and it was some time later that this
bill No. 49 got interpolated and become inflated to Rs.
1607.50 by addition of the figure "160" before the figure
"7" but such interpolation only appeared in the amount
expressed in figures while the amount expressed in words
continued to be "rupees, seven and fifty paise only.". it is
true that the prosecution has not been able to show as to
how and who made such interpolation in this bill but it
cannot be disputed that anyone who would come across such
bill (being Part of Ex. 5 colly) would immediately notice
the interpolation and discrepancy therein, so that whoever
uses the bill at any time subsequent to its tampering would
have knowledge and reason to believe that the same has been
forged. Similar is the-
489
position with regard to the other document, which is also a
part of Ext. 5 collectively, namely, the. voucher-cum-
receipt dated April 3, 1970. This voucher-cum-receipt
purports to bear the signature of Sagar (PW2) as also the
initials "RDD" of Doongaji (PWI), both of which according to
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the Hand-writing Expert’s opinion are traced, forgeries and
what is more there is positive evidence of these two
witnesses that the purported signature and purported
initials are not theirs and there is no reason why their
evidence in this respect should not be accepted, but that
evidence apart, whoever sees this document and reads its
contents will immediately realise and at any rate will have
reason to believe that the same is also distorted and
forged, for the document is incomplete and in the amount
mentioned therein, there is a clear discrepancy. The amount
in figures is stated as Rs. 1,607.50 while in words the
amount is mentioned as Rupees one. thousand six hundred and
seventy only. The incompleteness lies in the last part of
the document where it runs thus, "I also certify that the
work had been carried out in December but due to my sick I
was unable" and at the foot the purported signature of Sagar
appears. It is thus clear and it was, therefore,- not
disputed before us by. Mr. Mehta appearing for the
appellant-accused that both these documents on the face of
them would bring home to the person who uses them either
knowledge or reason to believe that the same were forged..
This being the nature of the two documents in question it,
the appellant-accused had used them in the sense that he had
made them thebasis for issuing the bearer cheque No.
377137 dated April 3,1970 he could be said to have used
both these forged documentswith the requisite knowledge
or reason to believe them to be forged at a time when he
used the same. The main question, therefore, that arises
for determination is whether the appellant accused had
issued the bearer cheque dated April 3, 1970 on the strength
of or on the basis of these forged documents and bad mis-
appropriated the proceeds of that cheque as alleged by the
prosecution or whether the bearer cheque was issued by him
in the circumstances suggested by him in his statement under
s. 342 of the Criminal, Procedure Code and what is more this
question will have to be determined in the light of the
further undisputed fact-a fact which has been deposed to by
A. G. Patni (PW2) that he or his firm had received no
payment whatsoever neither Rs. 7.50/- nor Rs. 1607.50, and
that the bill has remained unpaid till now. In other words
the. question would be whether the proceeds of the bearer
cheque after encashment thereof were misappropriated by the
appellant-accused or were used for replenishing the cash
from out of which the amount of Rs. 1607.50 was allegedly
paid by the appellant-accused to Sagar at, the instance of
Doongaji as suggested by him. It was in this situation that
the two aspects assumed great significance in the case,
namely, whether it was the practice to keep about 8 to 10
blank cheques signed by Doongaji and K. N. Singh in the
custody of the accused or not and whether the appellant-
accused was in ’possession of the forged documents,
particularly bill from Patni & Co. at about the time when
the bearer cheque was issued by him, on both of which the
conclusions reached by the High Court were contrary to,
those reached by the trial Court.
490
Dealing first with the prosecution theory that blank cheques
signed by Doongaji and Singh used to remain in the custody
of the accused there is evidence of two prosecution
witnesses on the point, namely, Doongaji (PW1), and Singh
(PW12); Doongaji (PW1) has stated that the bank account
could be operated jointly by himself asthe Chairman and
Singh as the Secretary, that Singh used to resideat
Goregaon and every time whenever the cheque was required to
be drawn it was not possible for Singh to give his
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signature onthe same and further that Singh used to
insist that before he wouldput his signature on the
cheque of the society, the Chairman shouldput his
signature on the same and, therefore, with a view to
facilitatethe convenience of Singh, it was the
practice of the society that at atime about 8 to 10
blank cheques used to be signed by him first andthey were
sent to Singh through witness Sagar the Estate Manager, and
Singh used to put his signatures thereon, and the cheque
book containing such signed blank cheques always used to
remain in the custody of the accused and on every occasion
the particulars of the cheque both in words as well as in
figures used to be written by the appellant-accused.
Doongaji also stated that the books of account, the vouchers
and cheque book used to be kept in the custody of the
accused in the office of Sir Doongaji Tata Trust. To the
same effect was the evidence of Singh (PWI2), who confirmed
that he used to put his signatures on blank cheques whenever
they were signed by the Chairman ’of the Society and be used
to receive such blank cheques duly signed by the Chairman of
the Society first through Sagar and later through Sagar’s
successor Figrado and that at a time he used to sign blank
cheques between 5 to 10 in number and sometimes they used to
be 15 also. This evidence was sought to be demolished by
the defence by relying upon two or three factors. In the
first place it was pointed out that both Doongaji as well as
the accused used to sit in the office of Sir Doongaji Tata
Trust for the purpose of doing the work of the Society, that
the accused used to sit at a distance of only 14 paces away
from Doongaji and that even if Doongaji was required to sit
in Oriental Building-another building for doing work in the
Share Department of Tata Iron and Steel Company that was
only for part of the day and, therefore, there was no
necessity for Doongaji to sign blank cheques. In our view
this fact cannot run counter to the practice of keeping
blank cheque signed by Doongaji and Singh with the accused,
for, it was not because of the distance between the place of
work of Doongaji and that of the accused that such a
practice grew. The practice grew because Singh, the
Secretary, used to stay at Goregaon and it was difficult to
Obtain his signatures on every occasion whenever a cheque
was required to be issued, and further Doongaji used to sign
the cheque first because of Singh’s instance in that behalf
and that is how the practice of keeping blank cheques signed
by boongaji and Singh with the accused-8 to 10 at a time,
grew. Secondly, Doongaji was confronted with 5 or 6 blank
cheques that bore only the signature of Singh-a circumstance
which ran counter to his story that blank cheques used to be
signed by him first and thereafter by Singh but both
boongaji and Singh have clearly explained this circumstance’
by stating that after the appellant-accus-
491
ed’s service were dispensed with, from and after July 1,
1970 Doongaji himself had personally started handling the
cash, and the new Estate Manager Figrado assured Singh in
that behalf and, therefore, Singh started giving his
signature on blank cheques even though the Chairman had not
given his signature first on the- same. In view of this
explanation which seems quite reasonable we do not find this
circumstance as running counter to the prosecution story
that initially the practice had grown to keep blank cheques
signed by Doongaji first and then by Singh with the accused.
Lastly, reliance was placed upon the contents of the letter
(Ext. 59-D) dated January 20, 1972 written by Singh to the
Chairman of the Society in which Singh had stated thus :
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"The cheque-books and all other papers and the documents of
the Society were under custody of the Chairman of the
Society", and according to the appellant-accused this
statement contained in Singh’s letter (Ext. 59D) ran counter
to the prosecution theory ’that the cheque-book used to
remain in his custody. It may, however, be stated that the
letter Ext. 59-D addressed by Singh to the Chairman on
January 20, 1972 was by way of reply to the Chairman’s
letter’ dated December 30, 1971 which he had received from
the Chairman and as such the contents of the reply and
particularly the sentence on which reliance has been placed
will have to be considered in its proper context. It
appears that the Chairman along with his letter dated
December 30, 1971 had forwarded a copy of the proceedings of
the Society’s General Body’s Meeting held on September 3,
1971, in which the conduct of the Secretary in not taking
proper interest in the affairs of the Society had been
criticised and it was by way of reply to this criticism that
the letter Ext. 59-D was addressed by Singh to the Chairman,
in which he pointed out that notwithstanding his having
ceased to have interest in the Society’s building, he was
retained as the Secretary and that he was told that he could
continue in that post merely for signing cheques and attend-
ing to two ejectment suits on behalf of the Society in Small
Causes Court. It was in the context of such criticism that
was made against him that Singh explained his position in
this reply and while explaining his position he stated that
the cheque-books and all other papers and documents were in
the custody of the Chairman of the Society; in other words,
as between the Chairman of the one hand and the Secretary on
the other, Singh suggested that all documents including the
cheque-books etc. used to remain in the custody of the
Chairman. The relevant statement contained in the letter,
therefore, cannot be used for the purpose of drawing the.
inference that as between the Chairman on the one hand and
the appellant-accused as Honorary Accountant on the other,
the cheque-books and the documents used to remain with the
Chairman. In fact, in this reply Singh has categorically
referred to and asserted the practice that had grown of
signing blank cheques-particularly the altered practice that
grew after Doongaji had started handling the cash by stating
thus---"’as it was not possible for him and the Chairman to
meet often he sent for a number of cheques to be signed by
him at a time so that when money was required from the bank
he would countersign and get the moneys withdrawn". The
trial Court has wrongly regarded this letter as running
counter to the prosecution theory. In our view far from
492
running counter to the prosecution theory, the contents (A
this letter lend support to the prosecution case fully and
this- effect of the letter Ext. 59-D which is an important
aspect has been completely missed and overlooked by the
trial Court. The learned Addl. Sessions Judge has, in
fact, made a half-hearted finding on this part of the
prosecution case by observing as follows in para 36 of the
judgment
"The probabilities would rather show that the
chequebook containing the blank cheques signed
by Mr. Doongaji as well as by Mr. Singh would
continue to remain with Mr. Doongaji and as
and when an occasion arose for issuing a
cheque the accused would be summoned and he
would be asked to fill in the body of the
cheque and then the cheque would be issued."
The observation suggests that the learned trial Judge has
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accepted the prosecution case partly, namely that on
probabilities the cheque-book used to contain blank cheques
signed by Doongaji as well as by Mr. Singh but according to
him such cheque-book containing signed blank cheque would
continue to remain with Doongaji. We fail to appreciate as
to why, if at all, the cheque-book was to remain with
Doongaji and the cheques would be issued by the accused in
the manner suggested by him, blank cheques would be signed
by Doongaji at all. The evidence of the two witnesses as
also the contents of the letter Ext. 59-D clearly show that
the practice as put forward by the prosecution did obtain in
the society. Apart from the aforesaid oral evidence of the
two witnesses and the support it receives from the contents
of the letter Ext. 59-D, there is yet one circumstance which
supports the prosecution story on the question of aforesaid
practice and that circumstance arises from the defence,
version itself. According to the appellant-accused in order
to keep a record of the fact that it was on the insistence
of Doongaji that he paid cash amount of Rs. 1607.50 to Sagar
and issued a bearer cheque for replenishment of the cash-box
he had put on endorsement on the counter-foil (Ex. 7) of the
bearer cheque to the effect "under the verbal orders of Mr.
RDD". ’Now, ordinarily if there was no practice of keeping
blank cheques signed by Doongaji and Singh with the accused
(signature of the two appearing on the blank cheques would
amount to written order to the appellant-accused) and if
cheques including the cheque in question were written out by
the accused first and then they were signed by Doongaji
there would be no necessity of putting the endorsement
"under verbal orders of Mr. RDD" on the counter-foil, the
very fact that such an endorsement was made by the
appellant accused on the counter-foil of the cheque clearly
suggests that the practice of keeping blank cheques signed
by Doongaji and Singh with him did obtain. Having regard to
the aforesaid discussion, in our view, the trial Court was
clearly wrong in disbelieving the prosecution story in
regard to the practice of keeping signed blank cheques in
the custody of the appellant accused and the High Court was
right in accepting the same. It is obvious that this
practice which obtained in Society clearly afforded an
opportunity to the appellant-accused to commit the offences
alleged against him.
493
The next question that is required to be considered is
whether after the bill No. 49 dated December 14, 1969 was
submitted by Patni & Co. to the Society, the same was handed
over and remained in possession of the appellant accused
till the time the bearer cheque in question was issued by
him. On this aspect of the matter evidence of Sagar (PW2)
is very material. This witness has stated in exami-
nation-in-chief that he retired as Estate Manager on
December 31, 1969 due to his old age, that before he retired
as Estate Manager he had received bill from M/s. Patni &
Co. for Rs. 7.50 (Ext. 5 collectively) in respect of a small
job carried out by them and that on or about December 20,
1969 he handed over the same to the appellant-accused and he
asserted that at the time when he handed over the bill to
the accused, the amount of the bill in figures was "Rupees
seven and fifty paise". He was shown the voucher-cum--
receipt dated April 3, 1970 and he asserted that the
signature "B. A. Sagar" appearing thereon was not his
signature at all. His further evidence has been that he
never presented this voucher-cum-receipt to the appellant
accused nor did he receive any payment of Rs. 1607.50 from
the appellant-accused in April, 1970 as alleged ’by him.
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The defence has attacked the evidence of this witness on the
point of his handing over the bill to the appellant-accused
on two or three grounds. In the first place, it was pointed
out that since the bill was for a small amount of Rs. 7.50
normally it was the duty of the witness as the Estate
Manager to disburse the same and, therefore, there was no
occasion for him to hand over the same to the appellant-
accused. Secondly, it was contended that the witness has
given two reasons for not making payment of the bill to M/s.
Patni & Co. viz,. (1) that it was the last month of his
service and (2) that be did not have sufficient funds with
him and according to the defence both the reasons do not
bear scrutiny and if the reasons for not disbursing the
,bill are false his evidence, that he handed over the bill
to the appellant,accused cannot and should not be accepted.
It has been elicited in his evidence that he used to keep
with him cash of the, Society out of the collections made by
him for days and months and in any case it would be
difficult to believe that be did not have a paltry sum of
Rs. 7.50/- with him and it has been further elicited that
though it was the last month of his service he had made
collection from the occupants of the flats. It was thus
urged that both the reasons put forward by the witness for
not disbursing the bill being false his evidence should be
it ejected. It is true that the bill was for a small amount
that it was his normal duty to disburse the same and that
the reasons given by him for not doing so may be wrong but
these aspects would not be material because whatever be the
reasons and whatever be his negligence the fact remains that
the witness had not disbursed the bill-which fact is
independently proved by the unchallenged evidence of witness
Abdul Gani Patni (PW3) and the question would be what would
Sagar do with regard to such undisbursed bill before he
retired from service ? He would naturally hand over the same to the appe
llant-accused before he went out of service.
Sagar’s evidence, therefore, lends support to the
prosecution case that the appellant accused had in his
possession bill No. 49 dated December 14, 1969. There are
two other pieces of evidence on record on
494
which the prosecution relied to support Sagar’s evidence and
those are the testimony of witnesses Nariman Deboo, the
internal Auditor (PW6) and Mr. Karsi Gherda (PW11). Nariman
Deboo (PW6) has, stated in his evidence that before starting
his work of auditing the accounts of the Society which was
entrusted to him by Karsr Gherda, he had contacted the
appellant-accused, who was the Honorary Secretary of the
Society and had collected several documents (7 items)
including the cash-book of the society pertaining to the
period from 1-7-1968 to 30-6-1970 and two files of payments
of vouchers for the same period, and that after going
through the accounts, from the file of vouchers he came
across 8 vouchers which appeared to be fictitious and
fraudulent in character including the bill and the voucher
produced at Ext. 5 collectively. This evidence shows that
the bill and the voucher at Ext. 5 collectively were among
the several documents which had been collected by this
witness from the appellant-accused and as such the
appellant-accused could be said to be in possession of
documents at Ext. 5 collectively. It was pointed out that
this evidence of the witness could not be accepted inasmuch
as the witness had passed a receipt produced at Ext. 43-D in
respect of the several documents which he had collected from
the appellant-accused and this receipt Ext. 43-D does not
refer top the item of two files of vouchers about which he
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has given evidence in examination-in-Chief. It may be
stated that this receipt Ext.. 43D was put to the witness in
his cross-examination and his attention was drawn to the
absence of any mention of two voucher files therein and the
witness explained the position by stating that "at the time
of handing over the various documents to him by the accused,
the accused had demanded from him receipt in respect of the
counterfoils of the receipt-book as also the statement of
collections submitted to him by Sagar, Estate. Manager,
from time to time. As per the desire I had executed the
receipt in favour of the accused". This explanation given
by the witness cannot be regarded as satisfactory inasmuch
as the receipt Ext. 43-D includes, apart from the two items
in respect of which the witness had stated that the accused
demanded a receipt from him, some other items also and,
therefore, it cannot be said that he had executed the
receipt Ext. 43-D as per the desire of the appellant-
accused. The evidence of this witness, therefore, cannot
avail the prosecution for establishing clinchingly that the
bill and the voucher Ext. 5 collectively had been handed
over to him by the accused. However, in our view, the other
piece of evidence on which the prosecution has relied
will clinchingly establish that the appellant-accused was
fully conscious and aware of the forged bill dated December
14, 1969 and had on the strength of that bill as well as the
forged voucher issued the bearer cheque in question andthat
is the evidence of Karsi Gherda (PW1l). Karsi Gherda afterhe
had been apprised by Nariman Deboo about the existence ofthese
two documents (Ext. 5 collectively) which were fictitious
and fraudulent in character.’ had a meeting of the persons
concerned and had confronted the appellant-accused with
these two documents. particularly, the bill part of Ext. P5
and from what the accused stated at that time to the witness
it would be clear that the appellant-accused was fully
conscious and aware of the clear inter-
4 9 5
polation in the figure of Rs. 1607.50 in the bill and
inspite of such awareness the amount was paid by him though
allegedly under the authority of Doongaji. His evidence in
this behalf is very material which runs thus : "I
entertained a doubt about the genuiness of the bill. 1,
therefore sent for the accused. When I showed this bill
part of Ext. 5 collectively and asked him as to what he
wanted to say with regard to the clear interpolation in the
figure of Rs. 1607.50 the accused agreed with me and told me
that even if it was clear case of interpolation, he paid off the amo
unt under the authority of Doongaji, who was
Chairman of the Managing Committee of the Society". Nothing
was elicited in /his cross-"amination so as to cast any
doubt on this part of the evidence given by him in examina-
tion-in-Chief. We might, however, state that for the first
time in the appeal when it was being heard by the, High
Court an application was made seeking permission to recall
the witness for the purpose of contradicting him with his
police statement where, according to the appellant-accused,
the witness had not given his version as to what transpired
between him and the accused during the meeting in such
details but that application was rejected by the High Court
and, in our view, rightly. The aforesaid evidence of
witness Karsi Gherda, therefore, clearly brings out the
aspect that on his own admission the appellant-accused had
made the payment of the bill on the strength of the bill
with full consciousness and awareness that the same was an
interpolated and forged document. The clear implication
arising from the aforesaid part of Karsi Gherda’s evidence
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has been overlooked by the learned trial Court. In our
view, the evidence of Sagar (PW2) read in the context of the
admitted fact that the bill bad remained unpaid all through
out as well as the aforesaid evidence of Karsi Gherda
clearly establishes the fact that the appellant-accused had
not only the possession of the forged bill, being part of
Ext. 5 collectively, but had purported to make payment by
issuing the bearer cheque in question on the basis of such
forged bill.
Having regard to the above discussion it seems to us clear
that on the two important aspects of the prosecution case,
namely, (a) theory of blank cheques signed by Doonkaji and
Singh remaining in the custody of appellant-accused and (b)
possession of the forged bill with the accused on the basis
of which the bearer cheque was issued by him, the
conclusions of the High Court were right and because certain
important aspects of the case had been overlooked by the
learned trial Judge the High Court was justified in having a
reappraisal of the evidence and coming to its own
conclusions on these points contrary to those of the trial
Court.
The next question pertains to the user of the forged
voucher-cum-receipt dated April 3, 1970 on the part of the
appellant accused with the requisite knowledge of reasonable
belief that the same wag, a forged one. As stated earlier
Doongaji (PW 1) and Sagar (PW 2) have stated that the
purported initial and signature appearing on the document
were not theirs and there is no reason why their evidence in
that behalf should not be accepted. But apart from this
aspect, as observed earlier, on the face of it the document
is incomplete and contains grave discrepancy in the matter
of the amount for which the receipt
496
came into existence and it was not disputed before us by Mr.
Mehta. that such a document on the face of it would cause
any one who read it to entertain reasonable belief that it
was a forged one. As regards, user, it is clear that the
issuance of the bearer cheque by way of satisfying the bill
of Patni & Co. would require to be vouched by some sort of a
receipt from Patni & Co. That the appellant-accused was
fully’ conscious of this aspect is clear. from the fact that
in his statement under s. 342 Cr.P.C., the accused has come
out with a story that at about the time when he made payment
in cash to Sagar through Doongaji and issued the bearer
cheque and got it encashed for replenishing of the cash,
some Gujarati voucher byway of a receipt from Patni & Co,
had been produced to him but somehow or the other that
Gujarati voucher was not forth coming. In other words, that
the disbursement of the bill would require to be vouched by
a voucher-cum-receipt was very well known to the appellant-
accused. The Gujarati writing, it seems to us, is not forth
coming because there was no such Gujarati writing at all in
existence and the appellant accused purported to make the
disbursement of the forged bill on the basis of getting the
same vouched by means of the forged voucher-cum-receipt,
(being the other part of Ext. 5 collectively.) In our view,
therefore, on the aforesaid material which we have discussed
above it appears to us clear that the prosecution could be
said to have established its charge under S. 471 read with
s. 467 I.P.C. under both the counts against the accused
beyond any reasonable doubt and the High Court was justified
in reversing the acquittal recorded by the trial Court in
his favour on these counts.
The next question that arises for consideration is whether
the appellant-accused had misappropriated the proceeds of
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the bearer cheque after the same were handed over to him by
the Peon Shiv Ram Lad or be utilised the proceeds for
replenishing the cash-box as suggested by him. The answer
to the question must depend upon whether the evidence of
Sagar on behalf of the prosecution deserves to, be accepted
or the defence version could be said to have been rendered
reasonably probable-by the appellant-accused. The evidence
of Peon Lad is categorical that after encashment of the
cheque he handed over the proceeds to the appellant-accused
and this was not disputed by the appellant-accused. His
version has been that before the issuance of the bearer
cheque (Ex. 9) and encashment thereof he made payment of Rs.
1607.50 in cash from the cash-box to Sagar through Doongaji,
in his presence and upon his insistence, notwithstanding his
(accused’s) suggestion that no such payment should be made
as a large amount was due from Sagar to the Society or
atleast the payment should be adjusted against such dues of
Sagar to the Society, and, thereafter, he issued a, bearer
cheque for Rs. 1607.50 in favour of Peon, S. A. Lad and
after Lad handed over the proceeds of the cheque to him he
replenished the cash by putting the amount in the cash-box.
His version further has been that in order to have a proper
record that the payment was made at the insistence of
Doongaji, he, made an endorsement on the counterfoil of. the
cheque (Ex. 7) to the, effect "under verbal orders of Mr.
RDD". On the other hand, Sagar’s evidence has been that he
had nothing whatever to do with the voucher-cum-receipt
(Ext. 5 collec-
4 9 7
tively), that the signature purporting to be his signature
appearing thereon was not his and that he had not received
the amount indicated in that voucher-cum-receipt from the
appellant-accused at any time. Doongaji also denied this
entire version and particularly denied that he had ever
issued oral instructions or order to the accused to make the
payment to, Sagar or that the payment was made in his
presence or that the accused made the endorsement on the.
counter-foil of the cheque in his presence. Nariman Deboo’s
(PW 6) evidence also shows that during the scrutiny and
inquiry undertaken by him when the counter foil (Ex. 7) was
shown to Doongaji the latter had denied having given any
verbal order as suggested or endorsed by the accused on the
counter foil of the cheque. So it is not as if Doongaji
came out with such denial for the first time at the trial.
Now, there are a number of circumstances which lend support
to Sagar’s evidence and completely falsify the defence
version. in the first place all reimbursements to be made to
the Estate Manager in respect of the sundry expenses for
repairs incurred by him were required to be made by the a
appellant accused by means of cheques only and not in cash
and, therefore, ordinarily, if Sagar was to be reimbursed in
respect of the bill of Patni & Co., the appellant-accused
should have ordinarily done so by means of a cheque and not
cash. Secondly, there has been no cross-examination of
Sagar on this part of his evidence that he was not paid the
amount indicated in this forked voucher by the accused on or
about April 3, 1970 or at any time. Apart from these
circumstances, the prosecution has brought on record the
fact which emerges from the cash-book that round about April
3, 1970 and for quite a few months prior to that date the,
only cash on hand that was lying in balance with the society
was only Rs. 505.55 and as such the appellant-accused could
not have paid to Sagar from the cash of the Society a sum of
Rs. 1607.50. The learned trial Judge had explained away this
circumstance by observing that apart from working as
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ordinary Honorary Accountant of the Society, the appellant-
accused was also doing the work of Koyna Relief Fund and
Rural Welfare Board and he could have and must have made the
cash payment of Rs. 1607.50 from out of the cash of such
funds, without any material having been brought on record by
the accused as to what was the State of cash on band in
regard to these funds also. If once the prosecution
established clearly that cash on hand of the Society was
only 505.55 on April 3, 1970 and for quite a few months
prior to that date and the accused could not have made
payment of Rs. 1607.50 to Sagar out of the Society’s cash it
was up to the appellant-accused to render probable an
alternative adequate source from which he could have made
the payment but beyond suggesting that the appellant-accused
was also doing the work of Koyna Relief Fund and Rural
Welfare Board no other material was brought on record to
show what was the state of cash on hand from these Funds.
The High Court has rightly observed that the trial Court
could not indulge in guess work on this aspect. This state
of evidence completely falsified the accused version that he
bad paid Rs. 1607.50 in cash to Sagar on or about April 3,
1970 and as such the further question of replenishing the
cash with the proceeds of the bearer cheque would not arise.
Further if the accused version were true that he had paid
cash of Rs. 1607-50 to Sagar and had replenished the same by
crediting the proceeds of the bearer cheque to the cash-
49 8
book of the society, proper entries would have been made by
him in the cash-book, namely, there would be a debit entry
in the cash-column of the cash-book and credit entry in bank
column of the cash-book but such entries are conspicuously
absent. We may point out that in paragraph 77 of its
judgment, the High Court has enumerated several
circumstances including the aforesaid circumstances which
clearly bring out the falsity of the defence version and
some of which substantially corroborate the prosecution
case. The learned trial Judge has improperly tried to
explain away these circumstances in favour of the appellant-
accused. There is no doubt’in our mind that the charge (if
criminal breach of trust under s. 408 I.P.C. in respect of
the amount of Rs. 1607.50 as-also the charge of
falsification of accounts under s. 477A I.P.C. have been
established by the prosecution against the accused beyond
reasonable doubt.
In the result we confirm the convictions as wel as the
sentence imposed upon the appellant-accused by the High
Court and dismiss the appeal.
P.H.P.
Appeal dismissed.
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