Anjana Jitendra Seth v. Kishore Bhavanidas Seth & Ors.

represent interest of the Applicant and Ms. Newton, learned APP for the State.

2. None appears for the Respondent Nos. 1 and 2.

3. The challenge in this Criminal Revision Application is to the Order dated 16th October 2002 passed by the learned Additional Sessions Judge, Greater Bombay in Criminal Appeal No. 27 of

2002. Dusane 3 REVN 130.2003.DOC

4. By the impugned Order, the learned Additional Sessions Judge has allowed the Appeal and set aside the order of conviction and sentence passed by the learned Trial Court.

5. The learned Trial Court, by Judgment and Order dated 16th January 2002 passed in C.C. No.919/P/1992 convicted both Accused Nos. 1 and 2 for the offence punishable under Sections 465, 467, 468, 471 read with Section 114 of the Indian Penal Code and both the Accused were directed to undergo rigorous imprisonment for one month for various offences and also payment of fine of Rs.5,000/- each and in default of fine, both the Accused were directed to undergo rigorous imprisonment for three months each.

6. The learned Metropolitan Magistrate, 18th Court Girgaon, Mumbai has further directed that substantive sentence passed under the head of each Section shall run concurrently and therefore period of imprisonment under each head would be only one month and fine of Rs.5,000/- each under each head of Section separately i.e. total fine imposed is Rs.20,000/- each. Dusane 3 REVN 130.2003.DOC

7. It is the submission of Ms. Patil, learned Counsel for the Applicant that the Complainant’s husband and Accused Nos. 1 are real brothers. Accused No.2 is working as Accountant. The subject fixed deposit receipt was in the business premises i.e. shop. The Accused Nos. 1 and 2 have fraudulently removed the same from the said shop and forged the same and fraudulently received amount of Rs.50,000/-. She submits that PW-2 and PW-3 who were conducting business along with Accused No.1 were knowing about handwriting of Accused No. 2 and while transferring the said fixed deposit from Bank of Baroda, Opera House Branch to University Branch, Fort, Mumbai, Accused No.2 has submitted application. She submitted that in fact the letterhead of the business is used. She therefore submits that the evidence on record clearly shows that the Accused are involved in the crime and therefore the Order passed by the learned Additional Sessions Judge in Appeal is perverse and liable to be quashed and set aside.

8. Ms. Newton, learned APP submitted that the crime is very serious, where fixed deposit receipt is forged and same is encashed and Rs.50,000/- has been fraudulently withdrawn from the bank. Dusane 3 REVN 130.2003.DOC She therefore, submits that the impugned Order be quashed and set aside.

9. Before considering the contentions raised by Ms. Patil, learned Counsel for the Applicant and Ms. Newton, learned APP, it is necessary to set out the prosecution case as set out in paragraph No.2 of the impugned Order dated 16th October 2002, which reads as under : “2. The prosecution case in brief is that on 8.8.1989 Complainant had deposited Rs. 50,000/- in Bank of Baroda. Opera House Branch and she was on record as the Guardian. The amount was kept in fixed deposit and FDR was also issued. In December 1999 she lost the said FDR. An application was given to the Bank for issuance of a duplicate. Thereafter on enquiry from the Opera House Branch of the Bank is was heard that the FDR was transferred to the University/Fort Branch of the same bank. Further enquiry revealed that it was transferred in the name of Sundaree Saree Emporium Pvt.Ltd, a firm of the accused No.1. For such transfer it was requested on the reverse of the FDR to make premature payment at credit the proceeds to current account No. 2777 and that this amount will be used for minors benefit. This account No.2777 was in the name of Sundaree Saree Emporium Pvt. Ltd. This endorsement is alleged to have been forged by the original accused no.2 He was working as an accountant in Sundaree Saree Emporium. The signatures on the FDR below such request are supposed to be forged of the said controlled by the accused no.l. Under these circumstances, the complaint came to be lodged and the accused were prosecuted.” Dusane 3 REVN 130.2003.DOC

10. The learned Trial Court in paragraph No. 13 has set out circumstances, which the learned Trial Court has relied on to record the finding of conviction. The said paragraph 13 reads as under : “13. I have gone through the record of the case very carefully and miutely. It is admitted fact that the accused No.1 is the brother of P.W.No.2 and P.W.No.3, There is no dispute as about family enimity amongst them on account of I am relying upon business and family dispute. the following circumstances which is brought on record by the prosecution. i) That the complainant has deposited an amount of Rs. 50,000/- in two F.D. R. of Rs. 25,000/- each in the name of her minor daughter and sent in the Bank of Baroda. ii) It is admitted fact that the accused No.1and P.W.No. 2 were looking after the shop of Sundari Saree Emporium while P. W. No.2 had kept F.D.R. in their shop. iii) When the complainant had gone to Bank of Baroda, Branch Opera House in order to make an application for getting duplicate F.D.R. she learned that the F.D.R. was transferred from Bank of Baroda Opera House Branch to Bank of Baroda, University Brnah, Fort. Letter written by Accused No.1 to the Bank of Baroda, opera House Branch is on letter head of Sundari Saree Emporium and on the basis of endorsement made on reverse side of F.D. R. Exh. P-2 those F.D. R. were transferred to University Branch. The signatures of accused No.2 have been identified by P.W. No.2 and 3. Dusane 3 REVN 130.2003.DOC v) The evidence of P.W. No.1 have been supported by P, W. No. 2 and 3. The evidence of handwriting expert which early shows that the documents Bank have signed these F.D.R. i.e. accused No.2.”

11. In view of above circumstances, the learned Trial Court has held that the chain of the circumstances is complete.

12. The learned Trial Court has also relied on handwriting expert who has been examined as PW-4. It has been held by the learned Trial Court that the handwriting expert has recorded in his opinion that the Complainant has not signed said Exhibit P-2 and Exhibit P-1 to P-12 and on the basis of forged letters and signatures appearing on the fixed deposit amount of Rs.50,000/- was transferred from Bank of Baroda, Opera House Branch to the University Branch, Fort, Mumbai.

13. The learned Appellate Court, while reversing the Judgment and Order of conviction passed by the learned Trial Court has considered the expert evidence in detail and discussed the same in paragraphs 7, 8 and 9, which reads as under : “7. P.W.4 Bhalchandra Biradar is handwriting Expert. In his evidence he has stated that on the reverse of FDR there are two signatures and for the purpose of his Dusane 3 REVN 130.2003.DOC identification he has marked them as q-1 and q-2, He also examined signature on the letter dated 15.5.1990 from Ms. Manasi J. Seth addressed to the Manager of the Bank, what is important is the fact that he marked this signature as q-3 One letter from Anjana Jitendra Seth dated 16.12.1991 addressed to Manager of Bank of Baroda and the signature thereon marked as q-4, What is important is the fact that he marked only three signatures on two disputed document as q-1, 1-2 and q- 3. The other signatures on various documents marked as Al to A16 are supposed to be admitted signature on the documents.

8. This witness has then stated that the person who wrote or who made the signatures at A1 to A16 did not write the disputed signatures q-1, q-2 and q.3. In other words therefore this evidence indicate that in the opinion of the handwriting expert the disputed signatures were not of the complainant. If this evidence is accepted as it is then it will mean that the signatures on the FDR and the letter of transfer of FDR are not of the complainant. The evidence does not prove that these signatures =-1, q-2 and q-3 were made by and forged by either of the two accused. Unfortunately that part of the prosecution case of the allegation is not supported by the evidence of handwriting expert. In other words by the evidence though proved it is not proved that it is committed by the accused. There is no evidence worth its name even of handwriting expert to show that it is done by the accused. The remaining evidence is that of the investigating officer which does not help in solving the abovementioned problem. The sum and substance of the evidence is 9. therefore that on the one hand there is no conclusive proof that the FDR was in possession of the accused No.1 or the accused No.2. The evidence of P.W.1 Anjana and P.W. Z Jitendra can only create a suspicion that the FDR was in the shop and to which that the complainant and her husband did not have any access because of the Dusane 3 REVN 130.2003.DOC family dispute and that is how it is presumed by the witnesses that the FDR went into possession of the accused no.1. This is therefore based upon presumption rather than any positive knowledge on their part.”

14. The learned Appellate Court has also recorded additional reasons in paragraph no.10, which reads as under : “10. Secondly as far as the transfer of the FDR is concerned, there is no officer of either of the two branches of the bank examined by the prosecution. No officers from the Opera House bank is examined to indicate as to how the FDR came to be transferred to the Fort branch, who came to make that who gave the letter for transfer, etc. There is none to tell the court as far as the Fort branch is concerned. Again nobody is examined by the prosecution to tell the Court and as to and on that basis the FDR was transferred in the account of Sundari Saree Emporium. On the other hand what was the change in the name of the firm, Whether there was any reconstitution of the firm, whether there was any difference in the account of the firm, Whether the husband of the complainant was ousted even from operating that account of the firm, It is nowhere clarified by evidence on record. This is because there has to be positive loss to the complainant and/or her husband. The loss could be only when the amount is transferred to some account which cannot be operated by the complainant and/or her husband unfortunately the witnesses do not say anything about it and no, officer of the bank is examined.”

15. Thus, what the learned Additional Sessions Judge has held that although on the basis of handwriting expert, it can be held that the disputed signatures are not of the Complainant, however it Dusane 3 REVN 130.2003.DOC is not conclusively proved that the disputed signatures are of the Accused.

16. The learned Appellate Court has also held that no officer of either of the two Branches of Bank of Baroda, were examined by the prosecution regarding letter of transfer. In paragraph-11, the learned Appellate Court has held that the evidence of the witness i.e. PW-1 Anjana and PW-2, Jitendra that the subject handwriting is the handwriting of Accused No.2 is not supported by opinion of handwriting expert and what is proved is that the said signatures are not of the Complainant. Learned Appellate Court therefore held that it is not conclusively proved that the forged signature is that of Accused No.2.

17. Thus, a possible view of the matter has been taken by the learned Additional Sessions Judge. This is a revision challenging the Order of acquittal passed by the learned Additional Sessions Judge in Criminal Appeal No. 27 of 2002. As per the settled legal position, if a possible view of the matter is taken and even if another view is also possible, the Order of acquittal should not be interfered. Dusane 3 REVN 130.2003.DOC

18. The learned Appellate Court by elaborately considering the evidence on record has given detailed reasons while setting aside order of conviction passed by the learned Trial Court. Thus, in the facts and circumstances, no case is made out for interference in the impugned Order of acquittal.

19. Accordingly, Criminal Revision Application is dismissed.

20. This Court places on record appreciation of assistance rendered by Ms. Ekta Patil, learned Advocate appointed to represent interest of the Applicants. (MADHAV J. JAMDAR, J.) BHALCHANDRA GOPAL DUSANE BHALCHANDRA GOPAL DUSANE Dusane