ABDUL KARIM MADAN SAHAB Vs. STATE OF MYSORE

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the Mysore High Court dated 1-12-1971. The appellant was charged of various offences before the trial Court but acquitted of all of them including a charge under S. 471, I. P. C. The High Court in appeal against the order of acquittal passed by the trial Court maintained the acquittal on other charges but reversed the acquittal so far as the charge under S. 471 was concerned and convicted the appellant under S. 471. The facts of the case have been set out in the judgment of the High Court and we need not reiterate them here. In fact the case lies within a very narrow compass. The accused who started as a Clerk of the complainant working in a Bank rose to the position of a Manager. The case of the prosecution was that the complainant P. W. 7 had entrusted a cheque book with Serial Nos. 151 to 194 to the appellant. All the cheques contained in the cheque book had been signed by him except Serial Nos. 172 and 174. Subsequently, it transpired that the appellant forged one of the cheques by drawing it in his name and putting the figures Rs. 50,000/- and presented the said cheque before the Syndicate Bank. When the complainant came to know of this fact he filed a complaint against the appellant.

(2.) The defence of the appellant was that apart from working in the Bank of the complainant the appellant had his other properties including a steel factory and the complainant had given him the cheque for Rs. 50,000/- in connection with one of the business transactions regarding sale of a steel almirah. The trial Court disbelieved the case of entrustment as made out by the complainant which really formed the sheet-anchor of the prosecution case. This finding of the trial Court has been endorsed by the High Court. The trial Court further acquitted the appellant of the charge of committing any forgery with respect to the cheque in question. This finding of the trial Court was also upheld by the High Court which observes thus:

(3.) The only charge on which the High Court relied was that the appellant should be convicted under Sec. 471. Having found that the prosecution had failed to prove the entrustment of the cheque book to the appellant or the forgery of the cheque in question, the High Court failed to consider the serious question as to whether the ingredients of an offence under S. 471 could be proved. Instead of addressing itself to this question the onus of which was entirely on the prosecution the High Court misdirected itself by approaching the case as if it were a Civil suit and placing onus on the accused explain under what circumstances he had asked for a cheque for Rs. 50,000/-. On the prosecution case the cheque should have come into the possession of the appellant only in three circumstances: