T S ANTONY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) CRL.R.C.No.87 of 1988 is filed by the third accused and CRL.R.C.No.89 of 1988 is filed by the second accused in C.C.No. 162 of 1980 on the file of the Special Judicial First Class Magistrate, Tirunelveli. Originally there were four accused in the case. Accused 1 and 2 were found guilty under Secs. 408, 471, 477-A, read with 120-B, I.P.C. and they were sentenced to undergo rigorous imprisonment for a period of six months under four counts and also to pay a fine of Rs. 100 under each of the four counts, in all Rs. 400, in default, to undergo rigorous imprisonment for a period of one month under each of the four counts, but the sentences were directed to run concurrently. Accused 2 and 3 filed an appeal C.A.Nos. 83 of 1984 and 80 of 1984 respectively before the Learned Sessions Judge, Nagercoil. Both the appeals were heard together and the Sessions Judge, confirmed the conviction and sentences as against the accused 2 and 3 and dismissed the appeals. Hence the accused 2 and 3 have filed separate revisions challenging the legality of the judgments of the courts below. The first accused was the President of the Kottaiyadi Village Agricultural Society. The second accused was the Secretary of the said Society. The third accused was originally Supervisor. Samuel Thangaraj was the Secretary of the said society during 1975-76. The loan was granted to P.W. 5 Poovammal by the said Society and she is stated to have received the loan of Rs.4,000 on 3-7-1975 and on 23-6-1975. The case of the prosecution is that P.W.5 did not receive the loans of Rs. 4,000 on the above said dates. The prosecution examined P.Ws. 1 to 9. P.W. 1 was the Co-operative Sub Registrar, Thakkalai. As per the order of the Deputy Registrar of Co-operative Society at Nagercoil, Ex. P-1, P.W. 5 conducted an enquiry on the affairs of the society and submitted Ex. P-2 report. P.W. 5 Poovammal was admitted as a member of the said society under registration No. 550. Ex. P-7 is the loan application in the name of P.W. 5 for Rs. 3,600 and also manure loan of Rs. 400 and these two loans are found at pages 129 to 133 in Ex. P-5. The case of the prosecution is that P.W. 5 had not put her signature at page 133 of the loan register. It is also the case of the prosecution that the first accused had also put his signature at page 133. The third accused is said to have recommended for disbursement of the loan to P.W. 5. The loan was granted and the case of the prosecution is that the accused 1 and 2 received the loan and made entry as per Ex. P-9. There is also an entry in the disbursement register showing at pages 32, 33 and 41 that P.W. 1 had disbursed the amount to P.W. 5. There is also signature of P.W. 5 in the disbursement register. The amount received by P.W. 5 is also deducted from the society accounts. As found from Ex. P-9 entry, Accused 1 and 2 put their signatures. The signature of P.W. 5 also finds a place in Ex.P-13, dated 23-6-1975, being the manure bill. Even in the loan register Ex. P-15, the signature of P.W. 5 finds a place. The signatures of all the accused are also found in Ex. P-17. In Ex.P-18, the signature of Poovammal finds a place. Poovammal was examined and her statements were recorded in Exs. P-19 and P-20. Ex.P-21 is the passbook issued to P.W. 5. Ex. P-22 is the statement given by the first accused. Ex.P-23 is the statement given by the second accused. Exs. P.24 and P-25 are the statements given by the third accused. P.W. 2 is the Deputy Registrar of Co-operative Society, Nagercoil and he passed an order under Ex.P-21 directing P.W.1 to enquire and submit a report in respect of the affairs of the said Society. P.W. 3 is the Secretary of the Co-operative Central Bank at Nagercpil and he received loan application Ex. P-7 from the Kottayadi Village Agricultural Society and after scrutiny of the application granted cash loan and manure loan. P.W. 4 is the Co-operative Sub Registrar and he received the report Ex. P-2 and sent the report under Ex. P-26 to the Inspector of Police, Commercial Crime and Investigation Wing. The case of P.W. 5 is that she had not received the loan of Rs. 3,600 in cash and manure loan of Rs. 400 from the said society and that the signatures found in Exs. P-11, P-12, P-16 and P-17 are not her signatures, but she admitted the statement given by her under Ex. P-19. The Sub Inspector of Police, C.C. & I.W. obtained signature of P.W. 5 under Ex.P-27. P.W. 6, Thangamani a member of the said Society deposed that he did not know about the payment of loan to P.W. 5 and that on the request of Samuel Thangaraj a clerk of the said society, he was asked to sign some documents. Accordingly, P.W. 6 had signed some of the records of the society. Ex. P-28 is the statement given by P.W. 6, P.W. 7 the Inspector of Police, C.C.I.W. has received the report Ex. P-26 and after verification of the records, he examined certain witnesses and recorded their statements. P.W. 8 is the Document Expert in Tamil Nadu Forensic Laboratory. He compared the signatures in Exs. P-8, P-10, P-11, P-12, P-14, P-16 to P-18 with the admitted signatures of P.W. 5 under Ex. P-27, and Ex. P-6 and submitted a report under Ex. P-32. P.W. 9, Chelladurai, Inspector of Police took up further investigation in this matter and examined witnesses and obtained statement and also report of the Scientific Expert and filed a charge sheet against the accused. Since Samuel Thangaraj had admitted the guilt, he was convicted and sentenced by the trial court and the case was separated as against the accused 1 to 3. The first accused was acquitted and accused 2 and 3 were convicted as stated above. P.W. 5 is admittedly a member of the society. A sum of Rs. 3,600 as cash loan and another sum of Rs. 400 as manure loan were granted by the said society. P.W. 5 denied the receipt of the two loans from the said society and she also denied the signatures found in Exs.P-11, P-12, P-16 and P-17. Ex. P-27 is the specimen signature obtained by the police from P.W. 5. The lower courts relied upon the evidence of P.Ws. 5 and 8 and accepted the case of the prosecution and convicted the accused 2 and 3, since P.W. 5 deposed that she has put her signature in Exhibit P-6 and also gave specimen signature in Ex. P-27. P.W. 8 has given a report under Ex. P-32 to the effect that the disputed signatures found in Exs. P-11, P-12, P-16 and P-18 are not those of P.W. 5. It was contended by the learned counsel for the petitioners, that there is no record to show that the amounts were entrusted with the accused 2 and 3 and that the accused 2 and 3 had committed breach of trust. It is the contention of the learned counsel for the petitioners that the specimen signatures in Ex. P-27 was not obtained from P.W. 5 and so that the opinion of P.W.8 in Ex.P-32 to the effect that the signatures found in Exs.P-8, P-11, P-12, P-14, P-16 and P-18 are not that of P.W. 5 is not correct. The evidence of P.W. 5 is that the Police obtained the specimen signatures from her and that it contained in Ex.P-27. Admittedly, the specimen signature in Ex. P-27 was not obtained in the presence of the Presiding Officer of the Court. It is not the case of the prosecution that Ex. P-27 was obtained in the presence of the Presiding Officer, so that we could have some reliance on it. The learned counsel for the petitioners submitted that Ex. P-27 is not the specimen signature of P.W. 5. If it was obtained in the presence of the Judge, there would be his seal and signature on Ex. B-7. I have perused the original deposition of P.W. 5 from the records. P.W. 5 was not at all cross-examined and the cross-examination was deferred. The reason for non-cross-examination of P.W. 5 was not noted. P.W.5 was not at all recalled and cross-examined. The Presiding Officer also has not noted either in the judgment or in the deposition of P.W. 5 that the cross-examination of P.W. 5 by the accused was given up. There is no order of the lower court that the accused did not want to cross-examine P.W. 5. Therefore, the chief-examination of P.W. 5 alone is now available for consideration. The lower court has not given any opportunity by questioning the accused whether they required to cross-examine P.W. 5 before the judgment was delivered. It is not clear from the records of the lower court as to why and under what circumstances the cross-examination of P.W. 5 was deferred and she was not cross-examined subsequently. Normally, in the trial court if there is no cross-examination of witness, me trial court would make a note that cross-examination is 'nil'. In mis case, it is noted as 'cros-examination deferred' Therefore, from the chie-examination of P.W. 5 alone we have to consider the merit and demerit of the case and decide the same. The entire decision of the case depends upon the evidence of P.W. 5 and also the evidence of P.W. 8. If P.W. 5 was not cross-examined, without testing her veracity, it is very difficult to accept her evidence in chief-examination. It is the fault of both the counsel appearing for accused 2 and 3 and also the omission on the part of the trial court in not recording reason for deferring cross-examination of P.W. 5 or failing to mention in the deposition of P.W. 5 itself that cross-examination is nil. It is not known from the records as to how P.W. 5 was not cross-examined. The trial court could have done its duty by noting in the depositionof P.W.5 that there is no cross-examination. It appears as if P.W. 5 was not cross-examined at all. Is it due to omission on the part of the learned counsel for accused 1 to 3 ? It is due to omission on the part of the trial court in omitting to note that there is no cross-examination at all? If the cross-examination was deferred to a subsequent date, the lower court could have recalled P.W.5 and permitted the cross-examination. The learned counsel for the petitioners herein also verified the records of the trial court and found that P.W. 5 was not at all subsequently recalled and cross-examined and they were also unable to say as to why and under what circumstances P.W.5's cross-examination was deferred and as to why P.W. 5 subsequently was not at all recalled and cross-examined. It is verified that P.W. 5 was not recalled and cross-examined subsequently. In the circumstances, the chief-examination of P.W. 5 only is available from the records of the trial court. This aspect has not been considered by the courts below. It is not the case of the prosecution that P.W. 5 was not at all cross-examined by the accused, since there is no order of the trial court that accused did not want to cross-examine P.W. 5 and there is no reference as "cross-examination is nil usually noted by the trial court. If there is no cross-examination, the learned counsel for the petitioners contended that the examination of P.W. 5 is incomplete and that from the evidence of chief-examination of P.W. 5, the decision rendered by the trial court and as confirmed by the lower appellate court is not proper and legal. I have no other alternative, except to accept the contention of the learned counsel for the petitioners that the evidence in chief of P.W.5 alone is available and his evidence has not been tested and cross-examined. Nobody is able to say here, that P.W. 5 was subsequently cross-examined. Even in the notes paper of the trial court mere is no reference that subsequently P.W. 5 was recalled and cross-examined. In these circumstances, the evidence of P.W. 5 in chief cannot be taken to be true since it is not tested. The lower court has also failed to note that P.W. 5 was not cross-examined by the counsel for the accused. Learned Public Prosecutor wanted to verify whether there was any such requisition on the side of the accused for recalling the P.W. 5 and cross-examining the said witnesses. Accordingly, I directed the trial court, namely, Special Judicial First Class Magistrate, Tirunelveli to send the immaterial records in connection with C.C.No. 162 of 1980 on its file connected with CRL.A.No. 83 of 1984 on the file of learned Sessions Judge, Nagercoil, so as to reach this court on or before 27-8-1992. Accordingly, records were received by this court and they were scrutinised. Learned Public Prosecutor also agrees that from a perusal of the records of the trial court, P.W. 5 was not recalled and cross-examined by the accused 2 and 3. The reason for not cross-examining P.W. 5 is not known. In the circumstances, the conclusion arrived at by the courts below, cannot be upheld. Further, the Police also have not obtained the specimen signatures of P.W. 5 in the presence of the Presiding Officer. Therefore, Ex. P-27 also cannot be accepted since the specimen signatures of P.W. 5 were said to have been obtained by the police not in the presence of the Presiding Officer. This sort of practice has to be avoided in future since if the prosecution wants to help the accused, there is possibility of taking the specimen signature or thumb impression of somebody else instead of the accused, complainant or relevant witness and get the opinion on the same and produce before the trial Court and defeat the ends of justice. Therefore, it becomes necessary that the prosecution obtains the specimen signature or thumb impression of a witness, accused, or complainant for comparison with the admitted signature in the presence of the Presiding Officer in order to avoid any suspicion that the specimen signature or the thumb impression of the witness or accused or complainant was not obtained in the police station or in jail and the prosecution, as stated earlier should obtain the specimen signatures or thumb impressions in the presence of the Presiding Officer of a Court. Then only the opinion based on the specimen signature or thumb impression can be treated as evidence for the purpose of the case. Otherwise, the very opinion itself becomes suspicious and cannot be looked into as a piece of evidence. As stated earlier, the evidence of P.W. 5 cannot be accepted. In the circumstances the evidence of P.W. 8 and the opinion Ex. P-32 are also not helpful to the case of the prosecution. In these circumstances the findings of courts below cannot be upheld and the conviction and sentence as against accused 2 and 3 are set aside.

(2.) IN the result, both the revisions are allowed and the fine amount if paid, is directed to be refunded to the accused by the trial court.