BARJUREKAIKHOSROOMAARFATIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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. 2000/- 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.

(2.) The prosecution case against the appellant-accused may briefly be stated thus:There is a Rosary Cooperative 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 (PW 1) 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 (P. W. 12) 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 (P. W. 1) and K. N. Singh (P. W. 12). One B. A. Sagar (P. W. 2) was working as the Estate Manager of the Society from April 1, 1967 and he retired due to old age with effect from December 31, 1969, whereafter one Mathew Figrado (P. W. 7) 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-holder 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 therefore 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 (P. W. 1) 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 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 of M/s. A. G. R. Patni and Co. had carried out a small job of clearing a chocked 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 (P. W. 2) 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 (P. W. 2) 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 (P. W. 2) and the initials of R. D. Doongaji, the Chairman of the Managing Committed (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 genuine the said bill 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 time about 8 to 10 blank cheques used to be signed by Doongaji (P. W. 1) first and then by K. N. Singh (P. W. 12) 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 payment by issuing the same; that as regards bill No. 49 of Patni and Co., the 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 (P. W. 8), 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-accused dishonestly misappropriated. The prosecution case further was that in connection with the above, the appellant-accused wilfully 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. 1607.50 and also falsified the books of accounts of the Society. It appears that in the last week of June 1970. Sagar (P. W. 2) the retired Estate Manager, complained to Doongaji (P. W. 1) that certain amounts which had been paid by him to the appellant-accused were not to be found in the books of account 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 Gerade (P. W. 11). 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 (P. W. 6) 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 (P. W. 6) on the strength of which, after obtaining the sanction of the Managing Committee of the Society, Doongaji (P. W. 1) lodged a written complaint (F. I. R. Ext. 12) with the Police on October 17, 1970. The crime was registered by the Paltan 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 first chargesheeted and then committed to the Court of Session 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.

(3.) The appellant-accused abjured guilt and denied having committed any of the offences with which he was charged. He disputed that there was any practice to keep in his custody the cheque-book of the society containing the blank cheques signed by Doongaji (P. W. 1) and K. N. Singh (P. W. 12) as suggested by the prosecution or that he had 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 (P. W. 2) on the instructions from Doongaji (P. W. 1) 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 and 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 insistence of Doongaji but what was handed over to him was a bill-cum-receipt of M/s. Panti and Co. written in Gujarati containing the rubber stamp of M/s. Patni and 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 cheques to be cashed unless the Chairman and the Secretary of the Society gave their signatures on the reverse of the cheque 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 of Patni and Co. by Sagar. His case further was that after Lad cashed the cheque, Lad gave the amount to him which he 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 insistence 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 the deserved to be acquitted.