BRIJ BEHARI LAL SAXENA Vs. UNION OFINDIA

JUDGEMENT

(1.) THIS is an appeal against the order dated 29-3-1972 of Sri S. S. Bose, Special Judge, Anti-Corruption (West), U. P. Lucknow convicting appellant Brij Behari Lal Saxena under Section 409 I. P. C. Sections 471/477-A I. P. C. and Section 5(1)(c) read with Section 5(2) prevention of Corruption Act, 1947 and sentencing him to four years' R. I. on each count. The sentences have been directed to run concurrently. The appellant Brij Behari Lal Saxena was employed as Sub-Post Master 509 Command Workshop Sub Post Office, Agra in the years 1965-66. It -is said that on 29 3 1966 the appellant misappropriated a sum of Rs. 6.000/- by falsely showing its withdrawal from the Savings Bank Account No. 194061 of Hiranand Girdhar. He was also charged under Section 471 I. P. C. for using a forged withdrawal form and under Section 477-A I. P. C. for falsification of accounts. He was further charged under Section 5(1)(c) read with Section 5(2) Prevention of Corruption Act, 1947 for dishonestly misappropriating the aforesaid amount. Lastly he was charged under Section 5(1)(c) read with Section 5(2) Prevention of Corruption Act, 1947 for obtaining valuable things of Pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant. The admitted facts are that Hiranand Girdhar (P. W. 5) had a Savings Bank Account No, 194061 at the 509 Command Workshop Sub-Post Office, Agra and on 10-3-1966 he had Rs. 8,503.13 to his credit in his pass book Ex. 9 in the above account. On 28-3-1966 a withdrawal form Ex. 1 purporting to be under the signatures of Hiranand Girdbar was presented before the appellant for withdrawing an amount of Rs. 6.000/- from the above Savings Bank Account Mo. 194061. The signature of Hiranand Girdhar bore the attestation of one Har Bhajan Singh. THIS withdrawal form further purports to show that an amount of Rs. 6,000/- was withdrawn under the signatures of Hiranand Girdhar on 29-3-1966. The appellant as Sub Post Master passed the warrant of payment on 29-3-1966 under his signature Ex. 0/3 and one person purporting to be Hiranand Girdhar obtained the above said payment of Rs. 6,000/- under his alleged signature Ex. 0/4/1. THIS alleged signature of Hiranand Girdhar Ex. 0/4/1 was again attested by Har Bhajan Singh who had attested these very signatures Ex. 0/1/1 on the withdrawal form Ex. 1. The attestation of signatures Ex. 0/1/1 under the signatures of Har Bhajan Singh is Ex. 0/2 while the attestation of the other signature Ex. 0/4/1 under the signature of Har Bhajan Singh is Ex. 0/5. The prosecution story in brief is as follows :- Hiranand Girdhar never presented the withdrawal form Ex- 1 for withdrawing Rs. 6.000/- or any other amount on 28-3-1966 ; nor did he withdraw this amount or any other amount on 29-3-1966. It is alleged that this withdrawal form does not contain the signatures of Hiranand Girdhar at all either on 29-3-1966 or on 29-3-1966. It is further alleged that the attestation under the signatures of alleged Har Bhajan Singh is also bogus and forged. It is further alleged that appellant reflected the above payment of Rs. 6.000/- to Hiranand Girdbar in the list of transactions and other accounting documents kept at the post office by the appellant. According to the prosecution the appellant did not make any payment to Hiranand Girdhar at all and the withdrawal form Ex 1 is a forged document and the payment of Rs. 6,000/- shown in the list of transactions and other documents kept at the post office by the appellant is totally false. On the above allegations the appellant was charge on five counts as already noted above. 1 he unchallenged sanction Ex. Ka. 1 for the prosecution of the appellant was accorded by S. S. Srivastava (P. W. 1). The appellant did not dispute that the withdrawal form Ex 1 was presented to him on 28-3-1966 and he prepared a warrant of payment Ex. 0/3 on 29-3-1966. His defence was that the amount of Rs. 6,000/- was actually drawn by Hiranand Girdhar (P. W. 5) himself and the withdrawal form Ex. 1 contains his signatures both Exs. 0/1/1 and 0/4/1. His further defence was that the attestation by Har Bhajan Singh Exs. 0/2 and 0/5 were all proper. His further defence was that the entries in the list of transactions and other documents kept in the post office were properly made after the amount of Rs. 6.000/- had been actually withdrawn by Hiranand Girdhar (P. W. 5), The appellant denied to have embezzled any amount or to have forged the withdrawal form Ex. 1 or to falsify any account. Prosecution examined 11 witnesses in support of this story. The appellant examined five witnesses in his defence. The Court below after considering the entire evidence on record found no case against the appellant under Section 5(1 )(c) read with Section 5(2) of the Prevention of Corruption Act, 1947. The appellant was, however, found guilty on four other counts as already narrated above and sentenced to four years' R.I. Feeling aggrieved the appellant has now come before me in appeal. It is contended on behalf of the appellant that his conviction on the various counts on which he has been found guilty is not warranted by the testimony on record. After hearing the learned counsel for the appellant at length and after hearing the learned counsel on behalf of the State and after going through the records, I have come to the conclusion that the conviction of the appellant cannot be interfered with. As already noted above, the case for the prosecution was that Hiranand Girdhar did not present any withdrawal form before the appellant at all and he did not receive any amount from the appellant. The case set up by the appellant, on the other hand, was that Hiranand Girdhar came with a genuine withdrawal form and on the basis of it he obtained the full amount of Rs. 6,000/- and issued receipt Ex. 0/4 under his own signatures. The first question that arises for determination in this case is whether the signatures on the withdrawal form Ex. 1 Ex. O/1/1 and Ex. 0/4 are in the hand-writing of Hiranand Girdhar. Hiranand Girdhar has entered into the witness box as (P. W. 5) and has denied his signatures on the withdrawal form Ex 1 at both the places altogether. He has also sworn that he did not present the withdrawal form Ex. 1 before the appellant at all. He has added that he did not send his pass book Ex. 9 also along with this withdrawal form. The appellant has not produced any witnesses to show that Hiranand Girdhar made the signatures Ex. 0/1/1 or the signatures 0/1 in his presence. The prosecution on this point was required to give evidence of a negative character only. If Hiranand Girdhar did not sign the withdrawal form Ex. 1 at all he could do no better than to say that the withdrawal form Ex 1 does not contain his signatures at all and this he did. It was for the appellant to establish by positive and affirmative evidence that the alleged signatures Exs. 0/1/1 and 0/4 on the withdrawal form are actually genuine and in the hand-writing of Hiranand Girdhar himself. The entire evidence on behalf of the appellant on this point consists of the hand-writing expert Amarnath Singh (D. W. 4). No doubt from the statement of Amarnath Singh it would appear that he. compared the photographed signatures marked Exs. Kha 2 to Kha 6 and came to the conclusion that they were of the same person. On the other hand, the prosecution examined an handwriting expert S. K. Gupta (P. W. 8), who after comparing the disputed signatures Exs. 0/1/1 and 0/4 on the withdrawal form Ex. 1 with the admitted specimen signatures of Hiranand Girdhar came to the conclusion that the signatures Exs. 0/1/1 and 0/4 on the withdrawal form Ex. 1 are not those of Hiranand Girdhar. The court below has accepted the opinion given by S. K. Gupta (P.W. 8) in preference to the opinion given by Amar Singh (D W. 4) and the conclusion arrived at by the court below cannot be disturbed for various reasons. Firstly, S K. Gupta (P.W. 8) is a Government Examiner of questioned Documents, Government of India at Calcutta. He is M. Sc. and has secured specialised training in the Science of Hand-writing and allied subject in Simla Government Laboratory. On the other hand, Amar Singh (D. W. 4) holds no degree or diploma as an hand-writing expert. His only qualification is that he studied this subject privately for about ten years. He has added that he took some training from Raghunath Singh Bar-at-law, Examiner of Questioned Documents, Rawalpindi. He conveniently stated that Raghunath Singh gave a certificate of competence to him which he left in Pakistan at the time of the division of the country. Amar Singh (D. W. 4) further admits that he pays no Income-tax and that shows his quality as an hand-writing expert. As remarked by the court below S. K. Gupta (P. W. 8) is an independent expert unconnected with Hiranand Girdhar, while Amarnath Singh is a witness hired by the appellant on payment of fees. The court below has discussed the grounds given by both the experts and has given cogent reason for accepting the opinion of S. K. Gupta (P. W. 8) in preference to the opinion given by Amar Singh (D. W. 4). The court below has further itself compared the disputed signatures with the admitted signatures while coming to the conclusion of its own, e. g, in the admitted or specimen signatures there is a dot on the letter "i" in the word "Girdhar.", but there is no such dot in the disputed signatures Exs. 0/1/1 pnd 0/4. The court below has noted other disparities also between the disputed signatures and the admitted or specimen signatures and it is needless to repeat them. Suffice it to say that I agree with the reasoning of the court below in prefering the opinion of S. K. Gupta (P. W. 8) over the opinion given by Amar Singh (D. W. 4). As remarked by the court below the disputed signatures on the face of it appear to be crude forgery and the court below was right in observing that Amar Singh (D. W. 4) has any attempt to show that they were genuine signatures. There is another aspect of the case which clinches the matter. It is a commonly known fact and warranted by the Rules of the Govt. Post Offices that when a depositor goes to withdraw his amount he carries his pass book with him and the Post Master will not make any payment till the payment is entered into the pass book itself and the payment has been stamped. The paper Ex. 9 is the pass book containing Account No. 194061 of Hiranand Girdhar. The entries in this pass book up to 10-3-1966 are unquestionably in the hand writing of the appellant. There is no suggestion that the pass book kept by Hiranand Girdhar was other than the pass book Ex. 9. If the appellant had handed over Rs. 6,000/- to Hiranand Girdhar, as alleged by him, he would not have failed to make an entry to that effect in the pass book Ex. 9, but this entry is conspicuous by its absence in Ex. 9. No Post Master with the slighest common sense would make payment without making corresponding entry in the pass book. No explanation is forthcoming on behalf of the appellant as to why he did not make an entry of the payment in the pass book Ex. 9. It was argued on behalf of the appellant that no question was put to the appellant on this point and he was not given an opportunity to explain it. The argument is devoid of merit. Sher Singh (P.W. 9) stated that the entries upto 19-3-1966 in the pass book Ex. 9 are in the hand writing of the appellant and he was not cross-examined on this point. No suggestion was made that the pass book owned by Hiranand Girdhar was different from the pass book Ex. 9. It was for the appellant himself to explain why no entry of payment of Rs. 6.000/- was made by him in the pass book Ex. 9 when the entire pass book was on the record of this case. The disputed signatures have been attested to be genuine by one Har Bhajan Singh of 509 Command Workshop Agra and these attestations are marked as Exs. 0/2 and 0/5. Sher Singh (P.W. 9) Inspector of Post Offices stated that a Sub Post Master has to get the person withdrawing from his account to be identified by a person known to him in case his signature did not tally with the specimen signature maintained at the sub-post office. The correctness of this statement was not challenged before me. In case Hiranand Girdhar was known to the appellant from before and he signed the withdrawal form in his presence, there was no question of attestation of the signature of Hiranand Girdhar, who had not withdrawn the amount through any messenger. On the other hand, according to the contents of the withdrawal form Ex. 1 Hiranand Girdhar was withdrawing the amount in person. There is no case of the appellant that Hiranand Girdhar was not known to him. In these circumstances the signatures of Hiranand Girdhar, if they were genuine, needed no attestation at all. The very fact that the appellant obtained attestation of those signatures throws a suspicion on the attestation itself. The Sub Post Master obtains attestation of a person known to him and not the attestation from a stranger. The Post Master makes payment only when he is satisfied as to the identity of the person withdrawing and for that he gets the signatures identified. The identification by a person who is stranger to the Post Master has no meaning. It follows that the appellant obtained attestations by some Her Bhajan Singh who was known to him from before. At any rate, it is within special knowledge of the appellant himself as to the identity of Har Bhajan Singh who made attestations 0/2 and 0/5. The appellant has not pointed out as to who this Har Bhajan Singh was. Since the attestor Har Bhajan Singh was a person specially within the knowledge of the appellant, the prosecution was not bound to hunt for that Har Bhajan Singh. Even then the prosecution produced four Har Bhajan Singhs P. Ws. 2,3,6 and 7 who all stated that the attestations Exs. 0/2 and 0/5 were not made by them. Har Bhajan Singh (P.W. 7) added the besides the four Har Bhajan Singh, produced in the court there was no other Har Bajan Singh in the 509 Command Workshop and no suggestion was made on behalf of the appellant that there was some other Har Bhajan Singh. In these circumstances, it was for the appellant to produce that Har Bhajan Singh who had made the attestations 0/2 and 0/5 in order to show that the attestations were genuine. It follows that the attestations 0/2 and 0/5 obtained by the appellant were also fictitious and forged. It was contended on behalf of the appellant that it was not established by the prosecution that any shortage was found in the cash with the appellant. The question of counting any cash in the present case did not arise. The appellant's own case was that he took out Rs. 6.000/- from the coffers of the post office and paid that amount to Hiranand Girdhar after obtaining the withdrawal form Ex. 1. He also noted this payment in the list of transactions and other accounting documents kept in the sub-post office. It was, therefore, admitted by the appellant himself that he had taken out the amount from the post office and had paid it to Hiranand Girdhar. The amount, thus, had gone out of the post office. If it was paid to Hiranand Girdhar then there was no defalcation at all. If it was not paid to Hiranand Girdhar, and this is my finding in the case, it follows that the amount was allowed by the appellant himself and he misappropriated it. It was next contended that the disputed signatures of Hiranand Girdhar were not compared with the specimen signatures kept at the post office itself. The specimen or admitted signatures of Hiranand Girdhar compared by S. K. Gupta (P.W. 8) with the admitted signatures were already many and if he was not given the specimen signatures of Hiranand Girdhar kept at the post office, it does not affect the case on the merit at all. My attention on behalf of the appellant was drawn to the cross-examination of Hiranand Girdhar who stated that subsequently he got Rs. 6,000/- and he suffered no loss. When Hiranand Girdhar had not withdrawn any amount he was bound to be reimbursed by the post office. There was no question of accruing any loss to him. The loss was of the post office which was deprived of this money by the appellant by falsely withdrawing it on the basis of a forged withdrawal form Ex. 1, without paying it to Hiranand Girdhar. Since the withdrawal form Ex. 1 has been found to be forged and the appellant knowingly withdrew the amount of Rs. 6.000/- from the post .office without paying it to Hiranand Girdhar, the appellant has committed an offence punishable under section 471 I.P.C. The appellant also falsified the account books kept in the post office. He was, therefore, rightly convicted under section 477A I.P.C. Since the appellant is guilty of criminal misappropriation he was rightly convicted under section 5(1)(c) read with section 5(2) Prevention of Corruption Act, 1947. The sentence has been challenged on the ground of excessiveness. The amount embezzled is huge, but as a result of this conviction the appellant will lose his service. In these circumstances the ends of justice will be met if the appellant is sentenced to three years' R.I. in place of four years on each count. With this modification of the sentences the appeal is dismissed. The appellant is on bail. He must surrender forthwith in order to serve out the rest of his sentences which shall run concurrently.