High Court
Case Details
Crl.A. 8/2010 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI JUDGMENT & ORDER [ORAL] This is an appeal against the judgment and order, dated 05-12-2009, pass ed, in Special Case No. 8 of 2005, by the learned Special Judge, Central Bureau of Investigation, Assam, Guwahati, convicting the accused-appellant, Pahar Khan, under Sections 468 and 420 IPC along with Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (in short, ’PC Act, 1988’) and sen tencing him (i) to undergo, for his conviction under Section 468 IP C, rigorous imprisonment for 2 (two) years with fine of Rs. 5,000/- and, in defa ult of payment of fine, to suffer rigorous imprisonment for 1 (one) year; (ii) t o undergo, for his conviction under Section 420 IPC, rigorous imprisonment for 2 (two) years with fine of Rs. 5,000/- and, in default of payment of fine, furthe r rigorous imprisonment for 1 (one) year ; and (iii) to undergo, for his convic tion under Section 13(1)(d) read with Section 13(2) of the PC Act, rigorous impr isonment for 2 (two) years with fine of Rs. 5,000/- and, in default of payment o f fine, to suffer rigorous imprisonment for 1 (one) year. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:
Legal Reasoning
(i) Accused-appellant, Pahar Khan, who was, at the relevant point of time, M anager-in-Charge and the General Manager-in-Charge of Assam State Cooperative Ag ricultural and Rural Development Bank Limited (hereinafter referred to as ’ASCAR D Bank’), Guwahati, recommended for sanction of loan, amounting to a sum of Rs. 3,05,062/-, in the name of Smt. Rukia Khanam, wife of Pahar Khan, for purchase o f car. The said Rukia Khanam was shown to have applied to the ASCARD Bank, at Gu wahati, for loan to purchase one Maruti Gypsy. The said loan application was, ho wever, not, according to the prosecution, signed by Rukia Khanam, but by her hus band, Pahar Khan, i.e., the accused-appellant, showing as if it was Rukia Khanam , who had signed the loan application. The signature (Ext. 6/B), put on the loa n application, was examined by the Government Examiner of Questioned Documents ( GEQD), who gave his opinion that Ext. 6/B, which was shown to have been signed b y Rukia Khanam, had actually been signed by her husband, i.e., accused Pahar Kha n. (ii) On the basis of an FIR, lodged with regard to the above, Central Bureau of Investigation (in short, ’CBI’) registered a case and, on completion of inves tigation, laid charge-sheet, under Sections 468 and 420 IPC, along with Section 13(1)(d) read with Section 13(2) of the PC Act, 1988, against accused Pahar Khan . 3. At the trial, when charges, under Sections 468 and 420 IPC, along with u nder Section 13(1)(d) read with Section 13(2) of the PC Act, were framed against the accused, he pleaded not guilty thereto. In support of their case, prosecution examined altogether 15 witnesses i 4. ncluding the handwriting expert. The accused was, then, examined under Section 3 13 (1)(b) Cr.P.C. and, in his examination aforementioned, the accused denied tha t he had forged the signature of his wife, Rukia Khanam, on the said loan applic ation, the case of the defence being that the accused had simply forwarded the l oan application, in question, with his note, in due course of his official duty, to his higher authorities for necessary action and that the loan was being repa id and that he had received, on behalf of Rukia Khanam, an Account Payee Cheque from the ASCARD Bank as a person authorized by his wife, Rukia Khanam, to receiv e the said cheque. 5. Having considered the evidence on record, the learned trial Court held t hat all the three charges stood proved. Conviction of the accused accordingly fo llowed and the sentences, as mentioned above, were passed. 6. inst him, the accused, as convicted person, has preferred this appeal. Aggrieved by his conviction and the sentence, which have been passed aga 7.
Legal Reasoning
I have heard Mr. D Talukdar, learned counsel for the accused-appellant, and Mr. PN Choudhury, learned Standing Counsel, CBI. My quest for an answer to the above question brings me to the evidence o 8. While considering the present appeal, what needs to be pointed out is th at if this Court holds that the signature, in question, found on the loan applic ation and proved as Ext. 6/B, was of the accused-appellant, Pahar Khan, then, th e accused-appellant ought to be held as having committed offence of forgery. Con sequently, offence, punishable under Section 420 IPC, would also stand proved in asmuch as the ASCARD Bank, in the event mentioned hereinbefore, must be taken to have advanced the loan to Rukia Khanam, though she had not applied for loan ina smuch as the loan application, bearing the signature of Rukia Khanam, was a forg ed one. This apart, if the evidence on record is found to have proved that Ruki a Khanam’s signature was put, on the loan application, by the accused-appellant, the act of the accused-appellant would also constitute an offence punishable un der Section 13(1)(d) read with Section 13(2) of the PC Act inasmuch as the accus ed-appellant, in such a case, must be held to have obtained, for himself or for any other person(s), valuable thing or pecuniary advantage by illegal means. O n the other hand, if Ext. 6B is proved to be forged, no case against the accused -appellant can, concedes the prosecution, be said to have been made out. 9. The crucial question, therefore, which needs to be determined, in the pr esent appeal, is: Whether the evidence on record proved that the signature of Ru kia Khanam, on the loan application, in question, had not been given by the accu sed-appellant? 10. f Rukia Khanam, who has been examined as the defence witness No. 2. What attracts the attention, most prominently, while considering the evi 11. dence of DW2 (Rukia Khanam), is that her clear evidence is that Ext. 6/B is her signature. The prosecution cross-examined DW2. Strangely enough, however, prosec ution did not dispute the correctness or veracity of the said assertion of DW2 m eaning thereby that the evidence, given by DW2 that Ext. 6/B is her signature, s tood undisputed and unchallenged by the prosecution. 12. Situated thus, it becomes clear that so far as the prosecution is concer ned, it had not questioned the veracity or truthfulness of the evidence of DW2 t hat it was she and not her husband (accused-appellant, Pahar Khan), who had sign ed the loan application, in question. 13. I may also hasten to point out that even the learned trial Court did not , in exercise of its powers, embodied in Section 165 of the Evidence Act, ventur e to put any question to DW2. Consequently, one has to treat that the prosecutio n admits, in the facts of the present case, that Ext. 6/B is the signature of Ru kia Khanum (DW2). This leaves the prosecution with, strictly speaking, no case against the accused-appellant. 14. Coupled with the above, it is of immense importance to note that though the accused-appellant is an employee of a bank, none of the employees of the ban k with whom the accused-appellant has worked, was examined by the prosecution to show that Ext. 6/B was in the writing of the accused-appellant, for, there is n o reason to infer that none of the employees of the bank, in question, would be acquainted with the hand-writing and signature of the accused-appellant. 15. The learned trial Court, in the case at hand, has relied, in order to co nvict the accused-appellant, on the findings and opinion of the hand-writing exp ert, as contained in Ext.13, and the comparison of the signatures, which the lea rned trial Court has itself, pursuant to its power under Section 73 of the Evide nce Act, carried out, the comparison being between the questioned signature, i.e . Ext. 6/B, on the one hand, and the admitted signatures of the accused-appellan t as well as of his wife Rukia Khanum (DW2), on the other, and came to the concl usion that the comparison of the signatures, so carried by the learned trial Cou rt, coupled with the hand-writing expert’s opinion, proved convincingly that it was the accused-appellant, Pahar Khan, who had signed as Rukia Khanam on the loa n application, in question. While dealing with the above aspect of the appeal, it needs to be pointe 16. d out that a hand writing expert’s opinion, as provided by Section 45 of the Evi dence Act, is an opinion only and though as a rule of law, there is no bar in pl acing reliance on the opinion of an expert if the opinion is supported by reason s, prudence demands that the opinion, which an expert, such as a hand writing ex pert gives, is corroborated by some credible evidence, direct or circumstantial. 17. In the case at hand, there was no evidence of any of the employees of th e bank, in question, that Ext. 6/B was signed by the accused-appellant as Rukia Khanam. As pointed out above, the learned trial Court has derived the strength f 18. or the conclusion, which it has reached, on the basis of the comparison of signa tures, which it carried out oblivious of the fact that the evidence, given by Ru kia Khanam (DW2) that Ext. 6/B was her signature, remained undisputed by the pro secution. 19. In Magan Bihari Lal -vs- State of Punjab, reported in (1977) 2 SCC 210, the Supreme Court has held that it would be extremely hazardous to condemn an ac cused merely on the strength of the opinion evidence of a handwriting expert. It was further observed, in Magan Bihari Lal (supra), that an expert’s opinion mus t always be received with great caution and, perhaps, with more caution if the o pinion is of a handwriting expert and that there is profusion of precedence to h old the view that it is unsafe to base conviction solely on expert’s opinion wit hout substantive corroboration. Even in Ram Chandra vs State of U.P., (AIR 1957 SC 381), the Court has taken the view that it was unsafe to treat handwriting e xpert’s opinion as sufficient to base conviction, but it might be relied upon, w hen supported by other item of internal and external evidence. 20. In Ishwari Prasad Misra vs Mohd. Isa (AIR 1963 SC 1728), the Court has h eld that evidence of handwriting expert can never be conclusive, because it is a fter all opinion evidence and this view has been supported by the decisions in S ashi Kumar Banerjee and others -vs- Subodh Kumar Banerjee since deceased and aft er him his legal representatives and others (AIR 1964 SC 529), wherein the Court has pointed out that expert’s evidence, as to handwriting, being opinion eviden ce, ’can rarely, if ever’, take the shape of substantive evidence and, thus, bef ore acting on such evidence, it would be desirable to consider whether the exper t’s evidence has been corroborated by either direct or circumstantial evidence. While considering the evidentiary value of an expert opinion in the fiel 21. d of handwriting, the Supreme Court, in Fakhruddin vs State of M.P., (AIR 1967 S C 1326), stuck a note of caution by pointing out that it would be risky to found conviction solely on the evidence of handwriting expert and that before acting on such evidence, the Court must always try to determine if the expert’s opinion is corroborated by any other evidence, direct or circumstantial. 22. Let me, now, turn to the case of Alamgir -vs- State (NCT, Delhi) reporte d in (2003) 1 SCC 21. In Alamgir (supra), the Supreme Court has clarified that the view, that a handwriting expert’s opinion cannot be accepted unless supporte d by substantive evidence, direct or circumstantial, shall be regarded as a rule of prudence and not as a rule of law. 23. In other words, as a rule of law, there is no bar in relying upon a hand writing expert’s opinion, but rule of prudence demands that the handwriting expe rt’s evidence be supported by substantive evidence, be such evidence direct or c ircumstantial. 24. Referring to the case of Murari Lal v. State of M.P., reported in (1980) 1 SCC 704, the Supreme Court has pointed out, in Alamgir’s case (supra), that e ven in Murarilal’s case (supra), the Supreme Court, while pointing out the hazar d in accepting opinion of an expert, has opined that a handwriting expert’s opin ion is not unreliable evidence, but it cannot be accepted, without substantive c orroboration, because human judgement is fallible. The Supreme Court has, howev er, observed in Alamgir’s case (supra) that the signs of identification of handw riting has attained more or less a state of perfection and the risk of an incorr ect opinion is practically non-existent and that insistence upon further corrobo ration of a handwriting expert’s evidence as an invariable rule is not justifiab le. 25. Concluded the Supreme Court, in Alamgir’s case (supra), that there is no rule of law nor rule of prudence, which can be said to have crystallized into a rule of law, that the evidence of a handwriting expert must never be acted upon unless corroborated by substantive evidence. Cautioning, however, the courts i n implicitly relying upon a handwriting expert’s opinion, the Supreme Court has hastened to add, in Alamgir’s case (supra) (cid:28) & &that since human judgement cannot b e said to be totally infallible, due caution needs to be exercised and the appro ach ought to be that of care and caution. (cid:29) 26. Referring to Murarilal’s case (supra), the Supreme Court, in Alamgir’s c ase (supra), has pointed out that Section 73 of the Evidence Act expressly enabl es a court to compare disputed writings with admitted or proved writings to asce rtain whether a writing is that of the person by whom it purports to have been w ritten. If it is hazardous to do so, as sometimes said, ’we are afraid’, also h eld the Supreme Court, in Alamgir’s case (supra), (cid:28) & &it is one of the hazards to which Judge and litigant must expose themselves, whenever it becomes necessary (cid:29) . The Supreme Court has further pointed out that there may be cases, where both sides call experts and two voices of science are heard. There may be cases, wher e neither side calls an expert being ill able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its o wn conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Wh ere there is none, the court will have to seek guidance from some authoritative textbook and the court’s own experience and knowledge. But discharge it must, it s plain duty, with or without expert, with or without other evidence. (cid:28)We may m ention (cid:29), points out the Supreme Court, in Alamgir’s case (supra), (cid:28)that Shashi K umar Banerjee (supra) and Fakhruddin (supra) were cases, where the Court itself compared the writings (cid:29). 27. In the case at hand, learned trial Court has carried out the exercise, a s indicated above, of comparing the signatures of the accused-appellant and his wife, Rukia Khanam (DW2), with Ext. 6/B and came to take the view that Ext. 6/B was signed by the accused-appellant. Not a word has been used by the learned tri al Court to show as to why it has chosen to ignore, or not to place reliance upo n, the evidence of Rukia Khanam, given on oath, which had gone unchallenged by t he prosecution. Situated thus, it becomes clear that the view, which has been taken by t 28. he learned trial Court, on the basis of the comparison of signatures pursuant to its power under Section 73 of the Evidence Act, coupled with the opinion of the expert, by ignoring the evidence on record, adduced by the defence, cannot, but be regarded as perverse inasmuch as any finding of fact, which a Court reaches by ignoring a material piece or aspect of evidence, cannot, but be regarded as p erverse. Such a finding, which is palpably perverse, cannot be sustained. 29.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellant and the sentences passed again st him by the judgment and order, under appeal, are hereby set aside. The accuse d-appellant is held not guilty of the offences, which he stands convicted of, an d he is acquitted of the same. 30. stand discharged. 31. Bail bond of the accused-appellant is hereby cancelled and his sureties Send back the LCR.