Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
PETITIONER:
STATE OF ANDHRA PRADESH
Vs.
RESPONDENT:
Y. BASAVADEVUDU AND ANR.
DATE OF JUDGMENT26/03/1992
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
KULDIP SINGH (J)
CITATION:
1992 SCR (2) 344 1992 SCC (3) 30
JT 1992 (2) 399 1992 SCALE (1)730
ACT:
Criminal Law :
Indian Penal Code, 1860 :
Sections 409, 467, 471 and 477-A-Embezzlement-
Encashment of fake RBI Demand Drafts in the name of
fictitious persons-Falsification of accounts-Connivance of
Sub-Treasury Officer with other employees-Trial Court
holding accused guilty of offences charged-High Court
acquitting accused by giving benefit of doubt-Whether
justified-Held : prosecution had discharged its burden of
establishing charges levelled against accused beyond
reasonable doubt by unimpeaching oral and documentary
evidence-Duty of accused to produced defence evidence to
establish their innocence especially when facts relating to
payment of huge amount without receiving any advice from
R.B.I. and names and identity of persons who had identified
the payees were within their knowledge-Evidence Act, 1872 :
Section 106.
HEADNOTE:
Respondents Nos. 1 and 2 and PW. 18 were working as
Sub-Treasury Officer, Shroff and Upper Division Accounto-
cum-Double Lock Officer respectively in a non-Banking
Treasury. The State Government ordered the conversion of
the said Treasury into a Banking Treasury by handing over
cash business to a local Bank from a particular date.
However, on the report of respondent No. 1 that the case
chest was not working as the key was stuck-up in the Reserve
Bank of India chest and it was not possible to hand over the
case business on the date ordered by the Government, the
State Government fixed another date, and the conversion
materialised, on the revised date, about a month after the
original date.
After sometime, the Accountant General and also the
regional office of the Reserve Bank of India detected that
seven demand drafts alleged to have been issued by the
Reserve Bank of India were encashed in the Sub-Treasury on
the last two days of its being handed over. It was found
that no such demand drafts had at all been issued by the
Reserve Bank of
345
India for being encashed at the Sub-Treasury in question,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
and that altogether different drafts were issued relating to
other places outside the State, and except the serial
numbers, all other particulars, namely the date, amount,
name of the payee etc. were not at all tallying with the
payment certificate sent by respondent No. 1, the then Sub-
Treasury Officer. It was found that there was an
embezzlement to the tune of Rs. 1,22,500 out of the case of
the Sub-Treasury and all entries with regard to the payment
of such amount and the signatures of the payees in token of
receipts of money were all fake and forged by the accused
persons.
PW. 18 was granted pardon and declared an approver by
the District Magistrate.
The two respondents were charged for offences under
Section 409, 467, 471 and 477-A I.P.C. The prosecution
examined 27 witnesses and produced 113 documents in support
of its case. The respondents denied the charges but did not
lead any evidence in defence.
The trial court held that the prosecution had proved
beyond all reasonable doubt that the two respondents and
PW.18, the approver, together made falsification of the
accounts by writing false entries in the relevant registers
as if some payments were made on the two dates in question
to the fictitious persons whose names were mentioned in the
payment register and other registers, and that both the
accused persons and PW.18 connived in making false entries
with dishonest intention of covering up of misappropriation
of the public funds committed by them to the tune of Rs.
1,22,500. According it found that the respondent were
guilty of the offences under Section 409, 467, 471 and 477-A
I.P.C. It acquitted the approver of all the charges
levelled against him.
On appeal, the High Court acquitted the respondents on
the ground that the prosecution had failed to prove the case
beyond reasonable doubt, and that though a huge amount had
been embezzled, nevertheless it would not be proper to
convict the accused when doubt was cast and benefit of doubt
had to be given to the accused.
Allowing the appeals of th State, this Court,
HELD : 1.1 The High Court totally misdirected itself
and did not go deep into the matter, nor analysed the
clinching oral and documentary
346
evidence produced by the prosecution and gave benefit of
doubt to the respondents in a superficial manner. It did
not deal with the detailed reasons given by the trial court
and ignored the almost admitted facts and circumstances of
the case. The accused persons had not received any demand
drafts from the R.B.I. and all the entries in the relevant
registers at the Sub-Treasury regarding payment of seven
demand drafts amounting in all to Rs. 1,22,500 are fake,
false forged and the accused persons were the authors of
such entries. The prosecution has discharged its burden of
establishing the charges levelled against the accused
persons beyond any manner of doubt and the findings and
conclusion drawn by the trial court and the conviction and
sentence awarded by it are upheld. [350H, 357A-H]
1.2. It is clearly proved on record that the real and
genuine demand drafts were Exhibits P.82 to P.88 issued from
the regional office of the Reserve Bank of India and the
same were not drawn to be payable at Sub-Treasury in
question or at any other Sub-Treasury situated in the State.
The amounts, the dates and the payees were entirely
different from those demand drafts which have been entered
and shown encashed from the said Sub-Treasury. Since the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
respondents had taken the stand that the payments or
encashment of the demand drafts and the entries found the
Exhibits P.2., P.3, P.5, P.6, P.8 and P.9 were all correct,
and it may be that fake or spurious or bogus Reserve Bank of
India demand drafts might have been presented by the payees,
it was necessary for them to disclose the identity of the
person who identified the payees at the time of encashment
of the fake drafts. Admittedly, no advice for payment of
the demand drafts had been received before the encashment of
the demand drafts and even the alleged demand drafts after
payment are not available on the record and the respondents
took a false stand that they sent the paid drafts to the
office of the Accountant General. Indisputably the amount
of Rs. 1,22.500 was withdrawn by the respondents and the
same has been shown to have been paid against fake and
spurious demand drafts to unknown persons. [356C-F]
1.3. The High Court went wrong in throwing the burden
on the prosection to prove that the entries in column 5 of
Exhibits P.8 and P.9 containing the signatures or thumb
impression of the payees was made by the respondents. In
the facts and circumstances of this case, it was totally
wrong to place such burden on the prosecution. The
prosecution has discharged its burden by leading
umimpeaching oral and documentary
347
evidence that no demand drafts were issued from the R.B.I.,
against which payments have been shown on the two dates in
question in th record of Sub-Treasury and the names of the
payees were also of unknown an unidentified persons. The
entries in columns 1 to 4 of Exhibits P.8 and P.9 are
admitted to be correct by the accused persons. These
entries showing the names of the payees and the amount are
proved to be false and incorrect beyond any shadow of
doubt. In this background, it was no longer the duty of the
prosecution to show as to who made the entries in column 5
of Exhibits P.8 and P.9 A.1 had put his signatures on
Exhibits P.8 and P.9 and according to him the payments were
made after getting the identity of the payees verified by a
person well known to him. [356G-H, 357A-B]
1.4. When the payment of a huge amount of Rs. 1,22,500
was being made without receiving any advice from Reserve
Bank of India, it was all the more necessary to make
thorough enquiry regarding the correct identity and
genuineness of the payee. These facts being in the special
knowledge of the respondents, it was incumbent on them to
disclose the names and identity of the person who had
identified the payees and to establish their innocence by
producing such person or the payees in defence evidence.
Section 106 of the Evidence Act clearly provides that when
any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him. [357C-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
384-385 of 1982.
From the Judgment and order dated 11.7.80 of the
Hyderabad High Court in Crl. Appeal No. 459/78 & Transfer
Crl. Appeal No. 700 of 1978.
A.S. Nambiar and Guntur Prabhakar for the Appellants.
Mrs. K. Amareswari, C.S. Srinivasa Rao and B. Kanta Rao
for the Respondents.
The Judgment of the Court was delivered by
KASLIWAL, J. These appeals by grant of special Leave
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
are directed against the judgment of the Andhra Pradesh High
Court dated 11.7.1980 in Criminal Appeal Nos. 459 & 700 of
1978.
Y. Basavadevudu (in short ‘A.1’) and S. Subha Rao (in
short ‘A.2’)
348
accused-respondents were tried for offences under Sections
409. 467, 471 and 477-A of I.P.C The learned Assistant
Sessions Judge, Kammam found both the accused persons guilty
for the above offences and awarded various terms of
imprisonment and fine for the aforesaid offences. The
accused persons aggrieved against their conviction and
sentence filed appeals before the High Court. The High
Court by its judgment dated 11.7.1980 gave benefit of doubt
and acquitted the accused persons of all the charges
levelled against them. Fine, if paid, was directed to be
returned to the accused persons. The State of Andhra
Pradesh aggrieved against the order of acquittal has come
before this Court by grant of special leave.
The prosecution story is that A.1 was Sub-Treasury
Officer (hereinafter referred to as the ‘S.T.O.’) and A.2
was working as shroff in the non-banking Sub-Treasury at
Venkatapuram. The said non-banking Sub-Treasury was
converted into a banking Sub-Treasury from 18.6.1973 by an
order of the Finance Department dated 14.6.1973. A.1 who was
working as S.T.O. reported to the then District Treasury
Officer (PW.14) that the key was stuck up in the Reserve
Bank of India chest and as such it was not possible to
convert the Sub-Treasury into a banking Sub-Treasury on the
above date. The Government, therefore, issued another
order and the Sub-Treasury Venkatapuram was converted into a
banking Sub-Treasury in the afternoon of 17.7.1973. After
sometime the Accountant General of Andhra Pradesh at
Hyderabad as well as the Reserve Bank of India office at
Madras detected that seven demand drafts alleged to have
been issued by the Reserve Bank of India were encashed on
16.7.1973 and 17.7.1973 in the Sub-Treasury of Venkatapuram.
It was found that no such demand drafts had at all been
issued by the Reserve Bank of India office Madras for being
encashed at the Sub-Treasury at Venkatapuram. In fact,
altogether different drafts were issued relating to other
place outside the State of Andhra Pradesh and except the
serial numbers, all other particulars, namely, the date,
amount, name of the payee etc. were not at all tallying with
the payment certificate sent by the then Sub-Treasury
Officer (A.1). It was found that there was an embezzlement
to the tune of Rs. 1,22,500 out of the cash of the Sub-
Treasury and all entries with regard to the payment of such
amount and the signatures of the payees in token of receipts
of money were all fake and forged by the accused persons.
It may be stated that PW.18 Sh. N. Venkata Swamy who was
working as Upper Division Accountant-cum-Double Lock
Officer, in the Sub-Treasury Venkatapuram at the relevant
time was granted pardon and declared an
349
approver by the District Magistrate.
The prosecution examined 27 witnesses and produced 113
documents in support of its case. The accused persons
denied the charged but did not lead any evidence in defence.
During the course of their explanation recorded under
Section 313 Cr. P.C., A.1 stated that there was no
embezzlement of any public funds and the payments made of
the drafts on 16.7.1973 and 17.7.1973 were genuine payments
and there was no falsification of accounts nor defalcation
of any amounts. A.1 also stated that he sent the said
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
demand drafts to the Accountant General of Andhra Pradesh
directly and he later on also sent payment certificates. As
he did not know the payees of such demand drafts, they were
not identified by a person known to him. A.2 also took a
similar stand. Thus, the main defence of the accused
persons was that the payments or encashments of the demand
drafts on the respective dates as found in Exhibits P.2 and
P.3 were genuine. The relevant entries in the Reserve Bank
of India remittance register (Exhibit P.1), relevant
entries in Exhibits P.5 and P.6 in the Sub-Treasury office
number book (Exhibit P.4) and also the entries in Exhibits
P.8 and P.9 in the shroff chitta book (Exhibit P.7) were all
correct and it may be that fake or spurious demand drafts of
R.B.I. might have been presented by the payees, but the
accused persons did not embezzle any public funds on any
dates, much less on 16th and 17th July, 1973.
The Learned Assistant Sessions Judge after elaborate
discussion of the oral and doumentary evidence arrived at
the conclusion that the prosecution had proved beyond all
reasonable doubt that A.1 and A.2 and PW. 18 together made
falsification of the accounts by writing false entries in
the relevant registers as if some payments were made on 16th
and 17th July, 1973 to the fictitious persons whose names
were mentioned in the payment register and other registers.
It was also found that both the accused persons and PW.18
connived in making false entries with dishonest intention of
covering up of misappropriation of the public funds
committed by them to the tune of Rs. 1,22,500. Hence the
Learned Assistant Sessions Judge found both the accused
persons guilty for the offences under Sections 409, 467, 471
and 477-A I.P.C. The Learned Assistant Sessions Judge also
held that after having gone through the evidence of PW.18
it was quite clear that he had not violated any of the
conditions of pardon given to him and as such he acquitted
the approver of all the charges levelled against him.
350
The High Court as regards PW.1, who was deputed by the
Reserve Bank of India Madras to enquire into the matter,
observed that PW. 1 had stated that he identified the
signatures of A.1 in Exhibits P.2 and P.3 But, having
regard to the provisions of Section 47 of the Indian
Evidence Act, unless and until foundation was laid with
regard to the capacity of this witness to identify the
signatures of the Sub-Treasury Officer, his statement was of
no consequence. It was further observed by the High Court
that even the accused in their statements stated that they
received these drafts and after complying with the
formalities they were encashed and amounts paid to the
respective payees and those drafts were sent as would be
evident from the despatch register. Even Reserve Bank of
India Form No.11 was sent to the office of the Accountant
General and as such they had not committed any offence. The
High Court held that from the evidence of PW.1 alone, it
could not be said that the prosecution had proved all these
entries in the various books to be in the handwriting of
either A.1, A.2 or the approver. As regards the evidence of
the handwriting expert PW.24 the High Court observed that in
the cross-examination PW.24 stated "As the blue enclosures
in Exhibits P.8 and P.9 are different from the received
writing, I did not compare them at all". From the above
statement the High Court observed that so far as column 5 of
Exhibits P.8 and P.9 was concerned, it can safely be said
that the prosecution had not proved the handwriting therein.
It was the duty of the prosecution to have asked PW.24 to
verify the signatures in Exhibits P.8 and P.9 column 5 to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
find out as to whether the handwriting in that column in
those Exhibits was actually handwriting of the accused.
According to the High Court column 5 meant for the
signatures of the payees had not been proved by the
prosecution to be in the handwriting of either A.1 or A.2 to
show that such signatures were of bogus persons. It was
further observed by the High Court that even the
Investigation Officer (PW.26) stated that "the investigation
did not reveal that any amount is misappropriated by A.2 or
PW.18 at all". The High Court ultimately arrived at the
conclusion that the prosecution failed to prove the case
beyond reasonable doubt. Though a huge amount has been
embezzled, nevertheless it would not be proper to convict
the accused when doubt is cast and benefit of such doubt
will have to be given to the accused.
We have heard learned counsel for the parties and have
thoroughly perused the record. In our view the High Court
totally misdirected itself and did not go deep into the
matter, nor analysed the clinching oral and documentary
evidence produced by the prosecution and gave the benefit
351
of doubt to the accused persons in a superficial manner.
The High Court did not deal with the detailed reasons given
by the trial Judge and ignored the almost admitted facts and
circumstances of the case.
Admitted facts of the case are that A.1 was working as
S.T.O., A.2 as shroff and PW. 18 the approver as Upper
Division Accountant-cum-Double Lock Officer in the Sub-
Treasury Venkatapuram at the relevant time. The Government
vide dated 14.6.1973 ordered for the conversion of the non-
banking Sub-Treasury into a Banking Sub-Treasury by handing
over cash business to the local State Bank of Hyderabad on
18.6.1973. This was delayed on the report of the accused
A.1 to the effect that the cash chest was not working as the
key was stuck-up in the chest and it was not possible to do
so on the above date. The Government, therefore issued
another order and the conversion process materialised on
17.7.1973. The accused A.1 and A.2 handed over the cash
balance of R.B.I. chest as per the records on 17.7.1973.
After sometime the Accountant General of Andhra Pradesh at
Hyderabad as well as the Reserve Bank of India Office at
Madras detected that 7 fake demand drafts alleged to have
been issued by the Reserve Bank of India were shown to have
been encashed and paid on 16.7.1973 and 17.7.1973 in the
records of the Sub-Treasury of Venkatapuram.
The details of the seven drafts in all amounting to
Rs.1,22,500 alleged to have been encashed and paid on 16th
and 17th July, 1973 from the Sub-Treasury of Venkatapuram
are mentioned as under :-
------------------------------------------------------------
Ex P.2
R.B.I July -1973
16.7.73 Madras 2.7.73 B.D Sri Edara Ramaiah C-659307
20,328.00 IId./16.7.73
16.7.73 do 3.7.73 B.D. Sri Kothapalli Verraju C-659308
21,785.00 IId./16.7.73
16.7.73 do 3.7.73 B. D. Sri desari Venkata Rao C-659309
18,891.50 IId./16.7.73
16.7.73 do 3.7.73 B. D. Sri Botigam Surya- C-659310
narayan Rao
18,236.00 IId./16.7.73
------------
79,240.50
-----------
Rupess Seventy nine thousand two hundred and forty and paise
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
fifty.
------------------------------------------------------------
Ex.P.3
17.7.73 R.B.I. 7.7.73 B.D Sri Vasam Veeranna C-659311
Madras
14,430.50 IId./17.7.73
17.7.73 do 7.7.73 B.D. Sri Gattala Satyam C-659312
13,260.00 IId.17.7.73
17.7.73 do 7.7.73 B.D. Sri Vanga Sani Ranu C-659313
15,569.000 IId./17.7.73
------------
43,259.50
------------
Monthly Total 1,22,500.00
352
The payment of the above drafts is admitted to have
been made by the accused persons and signatures or thumb
impressions of the payees has been shown in the record of
the Sub-Treasury. It has however been proved on record by
the prosecution that no such drafts were at all issued from
the Reserved Bank of India, Madras. Neither, the dates, nor
amount, nor the name of the payees tally with the genuine
drafts issued from the Reserve Bank of India, Madras. The
drafts issued by the R.B.I., Madras were not even payable by
Sub-Treasury Venkatapuram, rather the same did not belong to
any place in the State of Andhra Pradesh. The details of
such drafts are given as under :-
Ex. P.82.dt.28.6.73 D.D No. C.659307 for Rs. 3,106 issued
by P. Manager, R.B.I. Madras, to Sub-
Treasury Officer, Keernur.
Ex. P.83/dt.29.6.73 D.D No. C.659308 for Rs. 875.96 ps.
issued by P. Manager R. B.I., Madras to
the Sub-Treasury Officer, Car-Nicobar.
Ex. P.84/dt.3.7.73 D.D. No. C.659309 for Rs.1,261.65ps.
issued by P. Manager R.B.I. to the Sub-
Treasury Officer, Denkanikottah.
Ex. P.85/dt/6.7.73 D.D. No C.659310 for Rs. 153.55 ps.
issued by P.Manager R.B.I., Madras to
the Sub-Treasory Officer, Denkanikottah.
Ex. P.86/dt.6.7.73. D.D. No C.659311 for Rs. 2,800 issued by
P. Manager R.B.I., Madras to the Sub-
Treasury Officer, Denkanikottah.
Ex. P.87/9.7.73 D.D. No. C659312 for Rs. 52.00 issued
by the P. Manager R.B.I. Madras to the
Sub-Treasury Officer, Car-Nicobar.
Ex. P.88/dt.12.7.73 D.D. No. C. 659313 for Rs. 315.12 ps.
issued by the P. Manager, R.B.I.,
Madras to the Sub-Treasury Officer,
Vayithiri.
The Learned Assistant Sessions Judge after analysing
the oral and documentary evidence produced by the
prosecution considered the explanation given by the accused
persons recorded under Section 313 of the
353
Code of Criminal Procedure, 1973. According to the Learned
Assistant Sessions Judge A.1 had stated that the drafts were
presented by the parties on 16th and 17th July, 1973 and
their signatures were identified by some well known person
on the drafts themselves and they had drawn Rs.1,22,500 from
the R.B.I. currency on 16th and 17th July, 1973 and the
entries were made in the relevant books and the same were
withdrawn in the presence of the approver (PW.18). They
sent R.B.I. Form No.11 along with the paid drafts to the
Accountant General, Hyderabad. A.1 further stated that the
initials in Exhibit P.3 were of himself, Exhibit P.14 was in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
his handwriting and the initials in Exhibits P.12 and P.13
were also made by him. A.2 also stated that no amounts were
embezzled by him or A.1 or anybody and they had sent the
paid drafts directly to Accountant General of Andhra
Pradesh. The payments mentioned in the payment register and
other registers on 16th and 17th July, 1973 were true and
correct. He further stated that the writings in Exhibits
P.100, P.102, P.103,10, 8, 9, 13 were made by himself. The
main contention of the accused person made before the trial
court was that the payments or encashments of the demand
drafts on the respective date as found in Exhibits P.2 and
P.3 which are the relevant entries in the Reserve Bank of
India remittance register (Exhibit P.1) and the relevant
entries in Exhibit P.5 and Exhibit P.6 in the Sub-Treasury
Officer number book (Exhibit P.4) and also the entries in
Exhibit P.8 and Exhibit P.9 in the shroff ‘chitta’ book
(Exhibit P.7) were all correct and it may be that fake or
spurious or bogus Reserve Bank of India demand drafts might
have been presented by the payees, but the accused did not
defalcate any public funds on any dates much less, on 16th
and 17th July, 1973. The trial court considered the
statement of PW.18, according to which the entires with
regard to the payments of the Reserve Bank of India drafts
said to have been made on 16th and 17th July, 1973. The
trial court considered the statement of PW.18, according to
which the entries with regard to the payments of the Reserve
Bank of India drafts said to have been made on 16th and 17th
July, 1973 in all the relevant books of the Sub-Treasury
were made only only on 17.7.1973 at the instance and
suggestion of accused number 1. It was also stated by him
that there were no persons as those mentioned on 16th and
17th July, 1973 in Exhibits P.2 and P.3 as well as Exhibits
P.5, P.6, P.8 and P.9, they were all fictitious and bogus
persons whose names were mentioned in order to give a show
of payments made to certain persons so as to cover up the
shortage of case found in R.B.I. chest on 17.7.1973. The
trial court has observed that it was admitted fact that
whenever a demand draft is issued by the Reserve Bank of
India to particular persons drawn
354
on a particular Sub-Treasury, the concerned Reserve Bank
will send advices in advance and when the demand draft is
presented by the bearer, it has to be verified whether the
advices from the concerned bank is received or not and the
payee has to be identified by the Sub-Treasury Officer and
is the responsibility of the S.T.O. for payment of the money
to the payee and if the payee is not personally known to the
S.T.O., such payee has to bring an attestor, who is known to
the S.T.O. It is also in the evidence of PW.1 PW.14 and
PW.18 that whenever advices are received, they should be
carefully examined and observed. When there is no advice,
the draft cannot be encashed except under special
circumstances or on the satisfaction of the genuineness of
the drafts presented for encashment. The S.T.O. has to
identify the payee also. If the S.T.O. pays without the
advices, he should write immediately to the issuing
authority for sending the advices. In the case of payee to
bring a person known to the S.T.O. for his or her
identification before actual payment is made and after the
payments are made at the end of the same day, the S.T.O.
should enter the paid drafts in the Reserve Bank of India
form No. 11 and dispatch such certificate under certificate
of posting to the Accountant General directly, sending copy
of the same to the District Treasurer. In the present case
according to Exhibit P.12 it is mentioned that the paid
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
drafts along with Reserve Bank of India Form No. 11 were
posted to the address of the Accounted General, but the same
were not sent under certificate of posting. The trial court
also took notice of the fact that the alleged posting was
shown to have been done on the next day. It was also clear
from Exhibit P.14 a letter written by S.T.O. (A.1) that he
mentioned therein that he would trace out the records and
submit encashment schedules. It was also clear from the
evidence of PW.1 that the denominations of the currency
notes found in Exhibit P.17, the the relevant entry in
Exhibit P.15 currency chest book Form T.E.T.1 of the Sub-
Treasury Office Venkatapuram were not tallying with the
denomination of the currency notes mentioned in the double
lock register. The trial court held that it was quite clear
that the serial numbers of the drafts mentioned in the
relevant records of Sub-Treasury Venkatapuram were not in
fact the demand drafts that were issued by the Reserve Bank
of India at Madras and the real demand drafts were Exhibits
P.82 to P.88 which were issued to Sub-Treasury Officers
outside the State of Andhra Pradesh. Thus, it was clear
from the evidence of PW.2, PW.18,
355
PW.20, PW.21 and PW.22 that the real demand drafts that were
issued by the R.B.I. at Madras were neither received nor
encashed at Sub-Treasury Venkatapuram. Even the accused
persons do not say that Exhibits P.82 to P.88 were received
and got encashed by the payees at the Sub-Treasury
Venkatapuram. It was further clear that the entries found
mentioned in Exhibits P.2, P.3, P.5, P.6, P.8, P.9, P.16 and
P.17 were quite incorrect entries and they were made by the
concerned persons who were the authors of those entries so
as to give a colour or show of payments of the amounts to
certain persons to cover up the shortage. The trial court
thus, held that in the above circumstances, when the
payments mentioned on 16th and 17th July, 1973 under the
alleged Reserve Bank of India demand drafts were proved to
be false and bogus and the payees were ficititious persons,
it was the bounden duty of accused numbers 1 and 2 and the
approver to explain for the shortage of Rs. 1,22,500 from
the cash balance of the Reserve Bank of India chest in the
Venkatapuram Sub-Treasury. The trial court took into
consideration that though the accused number 1 had stated in
his explanation that a well known person identified the
payees, but he has failed to give his name, much less,
examined him to prove or substantiate his contention. The
payment register did not show that the payees were
identified by a particular person at the time of relevant
payments said to have been made to them. It has come in the
evidence of PW.18 that there were no such persons whose
names were mentioned in the payment register and all those
persons were fictitious. It was further held by the trial
court that it was quite clear from the documents placed on
record that the S.T.O. had nowhere stated that the advices
were lost or misplaced. Accused number 1 in this regard had
given the explanation that the records in the strong room
had been shifted and replaced for white washing purposes and
the register could not be traced out inspite of diligent
searches and after the March accounts are over, necessary
efforts will be made to trace out the records. The trial
court found that inspite of several letters and reminders
sent to A.1 the record was not made available. The learned
trial court in the end arrived at the conclusion that in
view of the evidence adduced by the prosecution including
the evidence of PW.18 approver and also in view of the fact
that the accused numbers 1 and 2 have admitted that they
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
have made the relevant entries in their own handwriting in
the relevant registers, it is proved that accused number 1,
accused number 2 and PW.18 (approver) colluded together and
have defalcated an amount of Rs. 1,22,500 from the cash
356
balance of Reserve Bank of India chest in the Sub-
Treasury Venkatapuram and made false entries in the relevant
registers and brought into existence false accounts so as to
cover up the shortage in the cash balance in the Reserve
Bank of India chest of the Sub-Treasury Venkatapuram and
thus they have committed grave offences punishable under
Section 409, 467, 471, and 477-A I.P.C.
We have considered the arguments made by learned
counsel for the parties and have gone through the record.
It is clearly proved on record that the real and genuine
demand drafts were Exhibits P.82 to P.88 issued from the
Reserve Bank of India Madras and the same were not drawn to
be payable at Sub-Treasury Venkatapuram or at any other Sub-
Treasury situated in the State of Andhra Pradesh. The
amounts, the date and the payees were entirely different
from those demand drafts which have been entered and shown
encashed from the Sub-Treasury at Venkatapuram. The stand
taken by the accused persons is that the payments or
encashment of the demand drafts and the entries found in
Exhibits P.2, P.3, P.5, P.6, P.8 and P.9 were all correct
and it may be that fake or spurious or bogus Reserve Bank of
India demand drafts might have been presented by the payees.
In such circumstances it was necessary for the accused
persons to disclose the identity of the person who
identified the payees at the time of encashment of the fake
drafts. It is worthwhile to note that admittedly no advice
for payment of the demand drafts had been received before
the encashment of the demand drafts and the accused persons
took a false stand that they sent the paid drafts to the
office of the Accountant General. It is no longer in dispute
that the amount of Rs. 1,22,500 was withdrawn by the accused
persons and the same has been shown to have been paid
against fake and spurious demand drafts to unknown persons.
We have considered the reasoning given by the High
Court and we are clearly of the view that the High Court
went wrong in throwing the burden on the prosecution to
prove that the entries in column 5 of Exhibits P.8 and P.9
containing the signatures or thumb impression of the payees
was made by the accused person. In our view in the fact and
circumstances of this case, it was totally wrong to place
such burden on the prosecution. The prosecution has
discharged its burden by leading unimpeaching oral and
documentary evidence that no demand drafts were issued from
the R.B.I., Madras against which payments have been shown on
16th and
357
17th July, 1973 in the record of Sub-Treasury Venkatapuram
and the names of the payees were also of unknown and
unidentified person. The entries in columns 1 to 4 Exhibits
P.8 and P.9 are admitted to be correct by the accused
persons. These entries showing the names of the payees and
the amount are proved to be false and incorrect beyond any
shadow of doubt. In this background, it was no longer the
duty of the prosecution to show as to who made the entries
in column 5 of Exhibits P.8 and P.9. The S.T.O. (A.1) has
put his signatures on Exhibits P.8 and P.9 and according to
him the payments were made after getting the identity of the
payees verified by a person well known to him. When the
payment of a huge amount of Rs. 1,22,500 was being made
without receiving any advice from Reserve Bank of India,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
Madras, it was all the more necessary to make thorough
enquiry regarding the correct identity and genuineness of
the payee. The above facts being in the special knowledge
of the accused persons, it was incumbent for them to
disclose the names and identity of the person who had
identified the payees and so to establish their innocence by
producing such person or th payees in defence evidence.
Section 106 of the Evidence Act clearly provides that when
any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him.
This leads us to irresistible conclusion that the
accused persons had not received any demand drafts from the
R.B.I. Madras and all the entries in the relevant registers
at Sub-Treasury Venkatapuram regarding payment of seven
demand drafts amounting in all to Rs. 1,22,500 are fake,
false and forged and the accused persons were the authors of
such entries. We are fully satisfied that the prosecution
has discharged its burden of establishing the charges
levelled against the accused persons beyond any manner of
doubt and the findings and conclusion drawn by the trial
court are upheld.
In the result, we allow these appeals, set aside the
judgment of the High Court and affirm the judgment of the
Assistant Sessions Judge, Khammam dated 13th March, 1978.
We uphold the conviction as well as the sentence awarded by
the learned Assistant Sessions Judge. The accused-
respondents shall surrender to the bail bonds forthwith.
N.P.V. Appeal allowed.
358