Prisoners Act, 1980 in Ram Babu Misra’s case, this Court
suggested that a suitable legislation be made along its lines to
provide for investiture of Magistrates with powers to issue
directions to any person including an accused person to give
specimen signatures and handwriting. Accordingly, a new Section
311-A was inserted in the Criminal Procedure Code. Section
311-A Cr.P.C. reads as under:-
“Section 311A. Power of Magistrate to order person to give specimen
signatures or handwriting.-If a Magistrate of the first class is satisfied
that, for the purposes of any investigation or proceeding under this
Code, it is expedient to direct any person, including an accused
person, to give specimen signatures or handwriting, he may make an
order to that effect and in that case the person to whom the order
relates shall be produced or shall attend at the time and place
specified in such order and shall give his specimen signatures or
handwriting:
Provided that no order shall be made under this section unless the
person has at some time been arrested in connection with such
investigation or proceeding.”
The said amendment is prospective in nature and not
retrospective.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 224 OF 2012
SUKH RAM
V
STATE OF HIMACHAL PRADESH
Citation: 2016 CRLJ 4146 SC
Present batch of appeals arise out of three separate
judgments of the High Court of Himachal Pradesh passed in
Criminal Appeals No. 418 of 2007, 419 of 2007 and 420 of 2007 in
and by which the High Court reversed the acquittal of the appellant
and convicted him for the offences punishable under Sections 468
and 471 of the Indian Penal Code and imposed six months
imprisonment.
2. Common facts arising out of these criminal appeals are
as follows:- During the relevant point of time i.e. 1983-1986, there
was a government scheme for providing loans at the cheaper
interest rates to poor persons living below the poverty line to enable
them to purchase sheeps, buffalos, horses and for running small
businesses and for development of land etc. Upon recommendation
of the Block Development Officer (BDO), the bank disbursed these
loans to the beneficiaries. Appellant-Sukh Ram was a Gram
Sewak, Navgaon under Arki Sub-Division during said period, 1983
to 1986.
3. It is the case of the prosecution that appellant-Sukh
Ram, Gram Sewak, while submitting applications on behalf of the
villagers for these loans, was involved in misappropriation of loan
amounts by forging their signatures and thumb impressions on the
applications and acknowledgement receipts. All three appeals have
been heard together as the offences committed by the same
accused persons appellant-Sukh Ram and others as also the
modus operandi of committing the forgery and falsification of
records being the same. Criminal Appeal No.224 of 2012 is taken
as the lead case.
4. On the basis of the preliminary enquiry, it came to light
that PW-5 Nathu Ram, PW-7 Kirpu and PW-8 Garja Ram had loans
disbursed to them despite not having applied for the loans.
Consequently, a case was registered against the appellant–Sukh
Ram, Balbir Singh-Block Development Officer and Arun Kumar
Sood, Branch Manager, UCO Bank Darlaghat. During enquiry, it
further came to light that disbursement of loans was not actually
made to the beneficiaries. An FIR was registered and on completion
of the investigation and after obtaining sanction from the
government, chargesheet was filed against the appellant–Sukh Ram
Gram Sewak, Balbir Singh-Block Development Officer and Arun
Kumar Sood, Branch Manager, UCO Bank Darlaghat. Charges
were framed against the appellant and the said accused under
Sections 409, 467, 468, 471, 120-B and 420 IPC and under Section
13(2) of the Prevention of Corruption Act. During the course of
investigation, PW-5 and PW-7 gave their specimen signatures in the
presence of the executive magistrate and the same were sent to the
handwriting expert for comparison with their disputed signatures
in the loan application and other documents. Handwriting expert
opined that the signatures in the loan application and other
documents did not match the signatures of Nathu Ram, Kirpu and
others but only matched the signature of appellant-Sukh Ram.
5. To substantiate the charges, in the trial court,
prosecution examined 22 witnesses. The trial court discarded the
testimony and opinion of handwriting expert (Ex.PW20/C-1 to
Ex.PW20/C-5) on the ground that the handwritten specimen given
by PW-5 and PW-7 were taken before the executive magistrate who
did not have the authority to enquire into or try the offence. Trial
court came to this conclusion that charge against the accused was
not proved by placing reliance on the decision of this Court in
Sukhvinder Singh & Ors. vs. State of Punjab, (1994) 5 SCC 152.
Trial court held that the appellant–Sukh Ram’s (Gram Sewak) task
was to take the applications for loan as well as subsidy and
accused Balbir Singh’s (BDO) task was to sanction the loan and
subsidy and issue letters to the bank and Arun Kumar Sood’s
(Branch Manager, UCO Bank) task was to release the loan and
subsidy after securing the requisite documents to that effect. Trial
court held that in the absence of legal evidence that appellant and
others have forged the loan documents, it cannot be concluded that
the accused had entered into conspiracy of committing forgery and
cheating etc. and on those findings, the trial court acquitted
appellant-Sukh Ram and others.
6. Aggrieved by the judgment of acquittal, State of
Himachal Pradesh preferred appeal before the High Court assailing
the correctness of the decision of the trial court. The High Court
differentiated the cases relied upon by the trial court from the case
at hand on facts as also on law. The High Court pointed out that
even though the executive magistrate before whom the specimen
4Page 5
signatures were given did not have the authority to enquire into or
try the case; however, PW-5 and PW-7 gave specimen signatures
voluntarily during the course of investigation and differentiated the
cases relied on by the trial court. High Court relied on the decision
of this Court in Vijay alias Gyan Chand Jain vs. State of M.P., 1994
SCC (Crl) 1755: (1994) 6 SCC 308 to hold that the exercise of power
under Section 73 of the Evidence Act does not apply in cases
where the investigating officer approaches the executive magistrate
or tehsildar for taking specimen signatures or writings or where
specimen is admitted by the accused or concerned persons.
7. On the charges of criminal conspiracy, High Court
accepted the plea made by Balbir Singh (BDO) that he sanctioned
the loans because the applications were verified by the appellant.
High Court acquitted Balbir Singh (BDO) observing that there was
lack of evidence suggesting conspiracy and held that no criminal
conspiracy could be made out. The plea of Arun Kumar Sood, Bank
Manager, UCO Bank Darlaghat that he released the loan amounts
because the loans were sanctioned by Balbir Singh (BDO) and he
disbursed the amounts when the loanees were identified before him
by the appellant was also accepted by the High Court and Arun
Kumar Sood, Bank Manager, UCO Bank Darlaghat was acquitted.
The High Court reversed the judgment of acquittal and found the
appellant guilty of forging loan applications of PW-5 and PW-7
(Ex.PW5/B and Ex.PW7/A) and other documents and convicted
him for the offences punishable under Sections 468 IPC and also
for the offence of using said forged applications as genuine
punishable under Section 471 IPC. On being convicted, the
appellant appeared before the High Court and he was questioned
about the sentence and the High Court sentenced the appellant to
undergo simple imprisonment for six months and to pay a fine of
Rs.10,000/- for each of the offences for he had been convicted.
Being aggrieved, the appellant is before us.
8. Learned counsel for the appellant submitted that High
Court failed to appreciate that no case was pending before the
executive magistrate and he was not competent to take the
specimen signatures of the witnesses; there was no occasion for the
police to produce the witnesses before him and obtain their
signatures. It was further submitted that while setting aside the
acquittal of the appellant, High Court has not properly construed
the provisions of the Evidence Act and erred in relying upon the
evidence of handwriting expert to convict the appellant.
9. Per contra, learned counsel for the respondent
submitted that the prosecution has proved the guilt of the accused
by relying on convincing evidence, oral testimony of witnesses
amply corroborated by the documentary evidence and also the
opinion of the handwriting expert. It was submitted that since the
trial court failed to appreciate the evidence against the appellant,
the trial court has laid great emphasis on the alleged lacunae in the
investigation, High Court rightly reversed the judgment of acquittal
and convicted the appellant and the impugned judgment warrants
no interference.
10. We have carefully considered the rival contentions,
judgment of the trial court, impugned judgment of the High Court
and also material on record.
11. During the relevant time, admittedly, appellant-Sukh
Ram was posted as Gram Sewak and he was to collect applications
from the prospective loanees duly signed, thumb impressions
marked by them and certain columns of the application were
required to be filled up by him. After that, the loan papers were
presented to BDO–Balbir Singh and BDO used to sanction loan and
subsidy and then send a letter of sanction to the Bank
Manager-Arun Kumar Sood, who after opening the account of
loanees and after following the requisite formalities, used to
disburse the loan and subsidy to the beneficiaries. From the very
beginning, the concerned officials were required to scrutinize the
papers i.e. economic viability, technical feasibility and antecedents
of the beneficiaries and after doing this, beneficiaries were asked to
execute the documents like application, term loan agreement,
hypothecation agreement, proforma bills etc. In all these cases,
case of the prosecution is that neither the loan amount nor the
subsidy was actually disbursed to the beneficiaries but was
misappropriated by the appellant and others.
12. To substantiate the prosecution case, PW-5 Nathu Ram,
PW-6 Sant Ram and PW-8 Garja Ram were examined who deposed
that they did not apply for any loan and nor did they put their
signatures in the documents. PW-5 Nathu Ram has categorically
stated that he did not apply for any loan from the UCO Bank
Darlalghat and that application for loan Exs.PW5/A and other
documents, PW5/B and PW5/C were not signed by him. Likewise,
PW-6 Sant Ram has also stated that he did not apply for any loan
from UCO Bank Darlaghat and specifically denied the execution of
the loan documents (Exs.PW6/A to PW6/G). PW-7 Kirpu has also
deposed that he had not signed any document for obtaining loan.
PW-8 Garja Ram, the alleged beneficiary, has stated that he is an
illiterate and does not sign and only thumb marks documents.
PW-8 has further stated that he has never applied for loan from
UCO Bank Darlaghat and never visited the bank for that purpose
and has also not made any application for grant of loan. The
statement of the above witnesses would clearly show that the
documents were forged to avail the loan and the loan amount and
subsidy amount were misappropriated.
13. To corroborate the version of the witnesses that they
did not sign on loan documents and receipts and to prove that the
signatures on the documents are that of the appellant-Sukh Ram
and to prove the guilt of the accused that he forged the documents
to misappropriate the government money, prosecution has
examined PW-20 Mohinder Singh (handwriting expert) who opined
that the disputed signatures of the witnesses PW-5 (Nathu Ram)
and PW-7 (Kirpu) in the loan applications were not that of the said
witnesses. During the course of investigation, specimen signatures
of the witnesses PW-5 (Nathu Ram) and PW-7 (Kirpu) were obtained
before the executive magistrate, Arki and sent to the handwriting
expert and fingerprint bureau. On comparison of the specimen
signatures of the witnesses with the disputed signatures and also
the admitted signatures of the appellant-Sukh Ram, in his report
(Ex.PW20/C-1 to Ex.PW20/C-3), PW-20 opined that the disputed
signatures in the loan application and other documents were not
that of witnesses (PW-5 Nathu Ram and PW-7 Kirpu) but they
tallied with the signature of appellant-Sukh Ram.
14. Trial court discarded the opinion evidence of PW-20 on
the ground that the executive magistrate was not the competent
authority before whom the fingerprint and handwriting of the
witnesses could be taken as no proceeding was pending before the
executive magistrate. In this regard, trial court placed reliance
upon Sukhvinder Singh’s case and held that the opinion evidence of
handwriting expert cannot be used against the accused.
15. In Sukhvinder Singh’s case, it was held that the
direction given by the Tehsildar-Executive Magistrate to the
accused to give his specimen writing was clearly unwarranted and,
therefore, the said specimen writing could not be made use of
during the trial and the report of handwriting expert was rendered
of no consequence at all and could not be used against the accused
to connect him with the crime. It was held that the direction to an
accused to give specimen handwriting can only be issued by the
court holding enquiry under the Criminal Procedure Code or the
Court conducting the trial of such accused.
16. High Court differentiated Sukhvider Singh’s case from
the case at hand on facts as also on law. High Court pointed out
that in the matter at hand, admittedly, the authority-Executive
Magistrate before whom the specimen signatures were given did not
have the authority to enquire into or try the case. However, as
observed by the High Court, during the course of investigation,
PW-5 and PW-7 gave the specimen signatures willingly. In
Sukhvinder Singh’s case, specimen writing of accused was taken as
per the direction of the tehsildar; whereas in the present case PW-5
and PW-7 were produced before the Executive Magistrate by the
police with a request that their signatures be taken by the
Executive Magistrate. Sukhvinder Singh’s case is clearly
distinguishable on facts from the case at hand. High Court further
relied on another decision rendered in Vijay alias Gyan Chand
Jain’s case wherein in the facts and circumstances of the said case,
it was held that procurement of specimen handwriting of accused
by Naib Tehsildar was not in violation of Section 73 of Evidence
Act.
17. The question is whether the Judicial Magistrate/
Executive Magistrate was authorized to take specimen writing and
signatures of the said accused during the investigation of the case
when no matter was pending before either of them. Section 311-A
of Cr.P.C. has been introduced by Act No.25 of 2005 with effect
from 23.06.2006 with respect to the powers of the Magistrate to
order the person to give specimen signatures or handwriting; but
no such powers were there prior to the year 2006. Section 311-A
Cr.P.C. has been inserted on the suggestions of the Supreme Court
in State of Uttar Pradesh v. Ram Banu Misra, (1980) 2 SCC 343: AIR
1980 SC 791, that a suitable legislation be brought along the lines
of Section 5 of Identification of Prisoners Act, 1980, to provide for
the investiture of Magistrates with powers to issue directions to any
person including an accused person to give specimen signatures
and handwriting but no such powers existed prior to such
amendment. The said amendment is prospective in nature and not
retrospective.
18. In State of Uttar Pradesh v. Ram Babu Misra, (1980) 2
SCC 343: AIR 1980 SC 791, the Supreme Court dealing with the
scope and ambit of Section 73 of the Evidence Act held as under:
“The second paragraph of Section 73 enables the Court to give
specimen writings ‘for the purpose of enabling the Court to
compare’ such writings with writings alleged to have been
written by such person. The clear implication of the words ‘for
the purpose of enabling the Court to compare’ is that there is
some proceeding before the Court in which or as a
consequence of which it might be necessary for the Court to
compare such writings. The direction is to be given for the
purpose of ‘enabling the Court to compare’ and not for the
purpose of enabling the investigating or other agency ‘to
compare’. If the case is still under investigation there is no
present proceeding before the Court in which or as a
consequence of which it might be necessary to compare the
writings. The language of Section 73 does not permit a Court
to give a direction to the accused to give specimen writings for
anticipated necessity for comparison in a proceeding which
may later be instituted in the Court. Further, Section 73 of the
Evidence Act makes no distinction between a Civil Court and a
Criminal Court. Would it be open to a person to seek the
assistance of the Civil Court for a direction to some other
person to give sample writing under section 73 of the Evidence
Act on the plea that it would help him to decide whether to
institute a civil suit in which the question would be whether
certain alleged writings are those of the other person or not?
Obviously not. If not, why should not make any difference if
the investigating agency seeks the assistance of the court
under Section 73 of the Evidence Act on the plea that a case
might be instituted before the Court where it would be
necessary to compare the writings?”
19. After referring to Section 5 of the Identification of
Prisoners Act, 1980 in Ram Babu Misra’s case, this Court
suggested that a suitable legislation be made along its lines to
provide for investiture of Magistrates with powers to issue
directions to any person including an accused person to give
specimen signatures and handwriting. Accordingly, a new Section
311-A was inserted in the Criminal Procedure Code. Section
311-A Cr.P.C. reads as under:-
“Section 311A. Power of Magistrate to order person to give specimen
signatures or handwriting.-If a Magistrate of the first class is satisfied
that, for the purposes of any investigation or proceeding under this
Code, it is expedient to direct any person, including an accused
person, to give specimen signatures or handwriting, he may make an
order to that effect and in that case the person to whom the order
relates shall be produced or shall attend at the time and place
specified in such order and shall give his specimen signatures or
handwriting:
Provided that no order shall be made under this section unless the
person has at some time been arrested in connection with such
investigation or proceeding.”
The said amendment is prospective in nature and not
retrospective.
20. Similarly, in Criminal Appeal Nos.2292-2293 of 2014,
Gurditu Ram-PW-2, Sohan Lal-PW-3, Badri Ram-PW-4, Mast
Ram-PW-5 deposed that their signatures were obtained on some
papers by the accused-Sukh Ram on the pretext that loan would be
13Page 14
distributed to them as well as subsidy, but they did not get the
entire amount, they were promised. While Smt. Savitri Devi-PW-8
deposed that she did not sign on any of the documents as she is
illiterate and Smt. Vidya Devi-PW-1 deposed that she did not apply
for any loan and did not sign on any of the documents.
21. In Criminal Appeal Nos. 2290-2291 of 2014, Gandhi
Ram-PW-1, Mahanto-PW-2, Shankroo Devi-PW-4, Sant Ram-PW-5,
Chhote Ram-PW-6 and Paras Ram-PW-10 deposed that they
neither applied for any loan nor signed on any document. Upon
consideration of evidence adduced by prosecution, in our view,
High Court righty reversed the judgment of acquittal. The
conviction of appellant in all the criminal appeals is confirmed.
22. In the present case, the occurrence was of the year
1983-1986 and, therefore, the authority of the Executive
Magistrate to take specimen signatures of PW-5 and PW-7 during
the course of investigation cannot be disputed. In any event, even
dehors opinion evidence of handwriting expert, there is clear oral
evidence of PW-5 and PW-7 denying their signatures in the loan
application and other documents. Affirming the evidence of PWs 5
and 7 and analysis of evidence, the High Court has rightly
reversed the judgment of acquittal and found the appellant guilty
of the offences under Sections 468 and 471 IPC.
14Page 15
23. Learned counsel for the appellant submitted that the
appellant is more than 75 years of age and is suffering from severe
ailments; he has prayed for reduction of sentence of imprisonment.
Considering the facts and circumstances of the case and that the
innocence of the villagers has been misused to siphon the public
money, we are not inclined to reduce the sentence of imprisonment
of the appellant.
24. In the result, all the appeals are dismissed. As directed
by the High Court, the sentence of imprisonment imposed on the
appellant shall run concurrently. The appellant is on bail and his
bail bonds shall stand cancelled. The appellant shall be taken to
custody to serve out the remaining sentence.
….……………………..J.
(V.GOPALA GOWDA)
.………………………..J.
(R. BANUMATHI)
New Delhi;
July 25, 2016
15
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