5 companyly.
49 dated December 14, 1960 from Patni Co. as well as the voucher cum receipt dated April 3, 1970 were clear forgeries the distortion and mutilation were with the appellant accused a of each, that the two documents were with the appellant accused and that on the basis of those two documents be had purported to make the payment of Rs.
49 dated December 14, 1969 was submitted by Patni Co. to the Society, the same was handed over and remained in possession of the appellant accused till the time the bearer cheque in question was issued by him.
1607.50 to Sagar from out of the cash box and thereafter replenished the cash box by issuing the bearer cheque and getting it encashed through peon Shivram Lad.
when it was originally received and was handed over by Sagar PW2 to the appellant accused was, for Rs.
59 D was addressed by Singh to the Chairman, in which he pointed out that numberwithstanding his having ceased to have interest in the Societys building, he was retained as the Secretary and that he was told that he companyld companytinue in that post merely for signing cheques and attend ing to two ejectment suits on behalf of the Society in Small Causes Court.
As per the desire I had executed the receipt in favour of the accused.
The High Court rejected the defence version that the appellant accused had first paid cash out of the cashbox to Sagar as suggested by him or that be bad done so at the instance of Doongaji or that he had issued the bearer cheque under verbal order of Doongaji as suggested.
One Nand Kumar Parekh, an Hand writing Expert and the State Examiner of Documents in the State I.D. was examined who gave his expert opinion that the purported signature B. A. Sagar and the purported initial RDD appearing on the voucher cum receipt dated April 3, 1970 Ext.
In particular the High Court accepted the prosecution case that the practice of keeping 8 to 10 signed blank cheques in custody of the accused had been satisfactorily established, that the two documents namely, the bill No.
49 of Patni Co appellant accused in his capacity as Honorary Accountant on the basis of inflated bill as well as the forged voucher receipt Ex.
1607.50 was produced at Ext.
5 companyly.
made use of one of such blank cheques signed by Doongaji and Singh by issuing a bearer cheque No.
5 companylectively in respect of a small job carried out by them and that on or about December 20, 1969 he handed over the same to the appellant accused and he asserted that at the time when he handed over the bill to the accused, the amount of the bill in figures was Rupees seven and fifty paise.
He also took the view that it was number possible to accept the prosecution case that the appellant accused was in possession of the original bill No.
43 D in respect of the several documents which he had companylected from the appellant accused and this receipt Ext.
5 companyly.
49 dated December 14, 1969 of Patni Co. and he felt that defence version bad been rendered probable that the appellant accused must have made the payment of Rs.
The evidence of this witness, therefore, cannot avail the prosecution for establishing clinchingly that the bill and the voucher Ext.
Upon scrutiny of the accounts and enquiry, which was actually undertaken by Nariman Deboo PW6 under the supervision of Karsi Gherda P.W.11 , the appellant accused was found to be involved in defalcation of as many as 8 items including the aforesaid amount of Rs.
He, therefore, gave the benefit of doubt to the accused in respect of the four charges levelled against him and acquitted him.
5 companyly.
176 of 1974.
The appellant accused, who was working as Accounts Clerk in Sir Dorabji Tata Trust, was appointed by Doongaji PWI as an Honorary Accountant of the Society in May 1966 and he worked in that capacity for the Society till July 1, 1970 when his services were dispensed with.
5 Colly.
The prosecution was unable to say who had actually interpolated and inflated the bill No.
He did number accept the prosecution case that signed blank cheques 8 or 10 at a time used to be kept with the appellant accused and did number accept the evidence of either Doongaji PW1 or K. N. Singh PW12 in that behalf, for according to him, the reasons for resorting to such practice were number satisfactory.
Appeal by Special Leave from the Judgment and Order dated the 30th September, 1974 of the Bombay High Court in Crl.
The crime was registered by the Palton Road Police Station and subsequently the investigation was taken over by the Crime Branch C.I.D. and after companypletion of the investigation the appellant accused was charge sheeted and then companymitted to the, Court of Sessions to stand his trial for offences under s. 471 read with s. 468 two companynts one in respect of each of the two documents, the bill and the voucher receipt, s. 408 and s. 477A. I.P.C. The appellant accused abjured guilt and denied having companymitted any of the offences with which he was charged.
176 of 1974, P. Mehta, B. R. Aggarwala and P. B. Aggarwala for the Appellant.
59 D addressed by Singh to the Chairman on January 20, 1972 was by way of reply to the Chairmans letter dated December 30, 1971 which he had received from the Chairman and as such the companytents of the reply and particularly the sentence on which reliance has been placed will have to be companysidered in its proper companytext.
Now, there are a number of circumstances which lend support to Sagars evidence and companypletely falsify the defence version.
So it is number as if Doongaji came out with such denial for the first time at the trial.
377137 dated April 3, 1970 there was an endorsement made by the appellant accused under verbal order of RDD in other words, he was inclined to accept the defence case that the appellant accused had first paid out cash of Rs.
There are two other pieces of evidence on record on which the prosecution relied to support Sagars evidence and those are the testimony of witnesses Nariman Deboo, the internal Auditor PW6 and Mr. Karsi Gherda PW11 .
as also who had brought into existence the aforesaid voucher .receipt Ex.
It may, however, be stated that the letter Ext.
100/ at a time for carrying out the repairs to the building.
5 companylectively.
Sessions Judge dated September 5, 1973, the State of Maharashtra preferred an appeal to the High Court of Bombay being Criminal Appeal No.
This evidence shows that the bill and the voucher at Ext.
On this aspect of the matter evidence of Sagar PW2 is very material.
9 whereas the companynter foil thereof in the name of M s A. G. R. Patni and companytaining the endorsement under verbal order of R.D.D. was produced at Ext.
4 87 Sagar to the appellant accused and was with the appellant accused on the basis of which it was suggested that the appellant accused had issued the bearer cheque Ext.
49 dated December 14, 1969.
The learned Session Judge on a companysideration of the evidence on record came to the companyclusion that the prosecution had failed to establish any of the charges against the appellant accused beyond reasonable doubt.
The appellant accused denied that the bill of Patni Co. was handed over to him by Sagar at any time or at about the time when the payment was made to him at the instance of Doongaji but what was banded over to him was a bill cum receipt of M s Patni Co. written in Gujarati companytaining the rubber stamp of M s. Patni Co., on the strength of which the payment was vouched but this Gujarati writing was number forthcoming.
on which forged signature of Sagar and forged initials of Doongaji appeared.
59 D dated January 20, 1972 written by Singh to the Chairman of the Society in which Singh had stated thus The cheque books and all other papers and the documents of the Society were under custody of the Chairman of the Society, and according to the appellant accused this statement companytained in Singhs letter Ext.
N. Phadke and M. N. Shroff for respondent.
5 Colly. ,
Karsi Gherda afterhe had been apprised by Nariman Deboo about the existence ofthese two documents Ext.
377137 dated 3 4 1970 for Rs.
12 with the police on October 17, 1970.
5 companylectively were produced the two documents, namely, the inflated bill dated December 14, 1969 and the voucher cum receipt dated April 3, 1970, the bearer cheque bearing No.
1607.50 was produced at Ext.
were number in the hand of witnesses Sagar and Doongaji respectively but were traced forgeries and gave reasons for his said opinion of companyrse, this was in addition to the positive evidence of these two witnesses who had stated that the companycerned signature and the companycerned initial were number theirs.
43 D does number refer top the item of two files of vouchers about which he has given evidence in examination in Chief.
7 the cash book companytaining the relevant entry for Rs.
Controller of Accounts in Tata Electric Company was requested to look into the accounts of the Society.
1607.50.
At Ext.
in the first place all reimbursements to be made to the Estate Manager in respect of the sundry expenses for repairs incurred by him were required to be made by the a appellant accused by means of cheques only and number in cash and, therefore, ordinarily, if Sagar was to be reimbursed in respect of the bill of Patni Co., the appellant accused should have ordinarily done so by means of a cheque and number cash.
59 addressed by Singh to the Chairman of the Society wherein Singh made a categorical statement that the cheque books and all the papers and documents of the Society were in the custody of the chairman of the Society and the High Court bad gravely erred in accepting the aforesaid theory.
1607.50.
7.50 Ext.
Nariman Deboo PW6 has, stated in his evidence that before starting his work of auditing the accounts of the Society which was entrusted to him by Karsr Gherda, he had companytacted the appellant accused, who was the Honorary Secretary of the Society and had companylected several documents 7 items including the cash book of the society pertaining to the period from 1 7 1968 to 30 6 1970 and two files of payments of vouchers for the same period, and that after going through the accounts, from the file of vouchers he came across 8 vouchers which appeared to be fictitious and fraudulent in character including the bill and the voucher produced at Ext.
Sessions Judge and companyvicted him of all the charges that were levelled against him by its judgment and order dated September 30, 1974.
Against this acquittal order passed by learned Addl.
1607.50 was paid in cash by him to Sagar PW2 on the instructions from Doongaji PWI but at that time he had told Doongaji that a large amount was due by Sagar to the society and if at all the payment was to be made to him it should be adjusted against the amount due to the Society from him.
The Society had a Bank account with Maharashtra State Co operative Bank Ltd., which was operated jointly by Doongaji PWI and K. N. Singh P.W. 12 .
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
1607.50 in favour of Shivram A Lad PW8 , Peon in Dorabji Tata Trust that Lad withdrew the amount from the Societys Bank at the instance of the appellant accused and handed it over to him, which the appellant 4 83 accused dishonestly misappropriated.
The oral evidence companysisted of as many as 15 witnesses out of whom 7 witnesses were material, namely, Doongaji PW1 , Sagar PW2 , Abdul Gani Patni PW3 , Shivram Lad PW8 , Nariman Deboo PW6 , Kars Gherda PWll and K. N. Singh PW12 .
43 D as per the desire of the appellant accused.
He observed that though there was a ring of plausibility and possibility in the case of the prosecution in respect of the charges levelled against the appellant accused, companyviction companyld number be based merely on possibilities unless the charges were established against him beyond reasonable doubt and since there were various circumstances which supported the defence it was a balancing case, the balance tilting very much in favour of the accused.
It appears that the Chairman along with his letter dated December 30, 1971 had forwarded a companyy of the proceedings of the Societys General Bodys Meeting held on September 3, 1971, in which the companyduct of the Secretary in number taking proper interest in the affairs of the Society had been criticised and it was by way of reply to this criticism that the letter Ext.
262 of 1975.
However, he was number allowed to spend more than Rs.
One R. D. Doongaji PW1 was the General Secretary of Sir Dorabji Tata Trust apart from his, being a Legal Adviser to Tatas in their Share Department on and from November 6, 1964, he after being elected, was working as a Chairman of the Managing Committee of the Society.
49 dated December 14, 1969 as well as the voucher receipt dated April 3, 1970, knowing or having reason to believe them to be forged at the time of such user that he companymitted criminal breach of trust in respect of the sum of Rs.
1607.50 from the appellant accused in April, 1970 as alleged by him.
companynected with and related to aforesaid interpolated and inflated bill purporting to bear the signature of B. A. Sagar, Estate Manager PW2 and the initials of R. D. Doongaji, the Chairman of the Managing Committee P.W.1 , came into existence.
5 companylectively were among the several documents which had been companylected by this witness from the appellant accused and as such the appellant accused companyld be said to be in possession of documents at Ext.
Manager, from time to time.
49 dated December 14, 1969 from Patni Co. mainly depends upon whether the.
1607.50 and a report in that behalf was submitted by Nariman Deboo PW6 on the strength of which, after obtaining the sanction of the Managing Committee of the Society, Doongaji PW1 lodged a written companyplaint F.I.R. Ext.
59 D which is an important aspect has been companypletely missed and overlooked by the trial Court.
1607.50and also falsified the books of accounts of the Society.
As Estate Manager, Sagars duties were to companylect the monthly companypensation at the rate of Rs.
43 D includes, apart from the two items in respect of which the witness had stated that the accused demanded a receipt from him, some other items also and, therefore, it cannot be said that he had executed the receipt Ext.
One B. A. Sagar PW2 was working as the Estate Manager of the Society from April 1, 1967 and he retired due to old age with effect from December 31, 1969, where after one Mathew Figrado PW7 worked as Estate Manager.
1607.50 to Sagar at the instance of Doongaji especially as on the companynter foil of the companycerned bearer cheque No.
It may be stated that this receipt Ext 43D was put to the witness in his cross examination and his attention was drawn to the absence of any mention of two voucher files therein and the witness explained the position by stating that at the time of handing over the various documents to him by the accused, the accused had demanded from him receipt in respect of the companynterfoils of the receipt book as also the statement of companylections submitted to him by Sagar, Estate.
The prosecution case further was that in companynection with the above, the appellant accused willfully and with intent to defraud, falsified the books of accounts of the Society, namely, the cash book by making therein a false debit entry of Rs.
377137 dated April 3, 1970 in favour of S.A. Lad for Rs.
The Judgment of the Court was delivered by TULZAPURKAR, J. This appeal by special leave is directed against the judgment and order of the Bombay High Court dated September 30, 1974, companyvicting the appellant accused for offences under s. 471 read with S. 467, ss.
49 Ext.
One K. N. Singh, Advocate PW12 was working as the figure head Secretary of the Society.
It appearsthat in the last week of June 1970, Sagar PW2 the retired Estate Manager, companyplained to Doongaji PW 1 that certain amountswhich had been paid by him to the appellant accused were number to be found in the books of accounts of the Society maintained by the appellant accused, whereupon Doongaji took Sagar to Professor Choksi, the managing trustee of Sir Dorabji Tata Trust and in July or August, 1970 Karsi Gherda PW11 .
1607.50 in figures but rupees seven and fifty paise only in words.
5 companyly.
5 companylectively had been handed over to him by the accused.
9 in question and the Trial Court had rightly found that the reasons Which Sagar mentioned why he handed over the document to the appellant accused were unacceptable and therefore his evidence in that behalf had been rightly rejected and High Courts finding that the said bill as also the voucher cum receipt were in the possession of the accused at the material time was companytrary to the evidence on record.
100/ from each flat bolder of the Society, to look after the maintenance of the said building, to undertake the repairs after obtaining the oral sanction of the managing companymittee and incur expenditure therefor either from the companylection of companypensation or from his own pocket, to draw his own salary and the salary of the staff of the Society from such companylections, and to hand over the balance to the Honorary Accountant of the Society together with a statement of account and vouchers, in respect of sundry expenses incurred.
but Doongaji did number accept his suggestion but insisted that the amount should be paid to Sagar without any adjustment.
377137 on April 3,1970 for Rs.
It was received by Sagar PW2 and was ordinarily required to be paid by him but it appears that since he was retiring at the end of December, 1969, he did number disburse the amount to Patni but handed it over to the appellant accused.
This witness has stated in exami nation in chief that he retired as Estate Manager on December 31, 1969 due to his old age, that before he retired as Estate Manager he had received bill from M s. Patni Co. for Rs.
As an Honorary Accountant of the Society his duties inter alia were to write and maintain the books of accounts Cash Book, ledger, journal and the voucher file , to receive amounts of companypensation companylected by the Estate Manager from the members ,of the Society, to reimburse the Estate Manager by cheques for sundry expenses which the latter may have incurred, to pay the municipal 4 8 2 taxes and to make other payments of bills again by cheques only and that too after verifying from the minute book that such payments had been sanctioned by the managing companymittee of the Society and also to make payments by cheques only against the vouchers after satisfying himself about the genuineness of the vouchers.
5 companylectively.
49 dated December 14, 1969 for Rs.
According to the prosecution this bill Ext.
Further, according to the prosecution, another document purporting to be a typed unstamped voucher cum receipt dated 3 4 1970 for Rs.
In appeal the High Court reversed the acquittal recorded in favour of the accused by the learned Addl.
7.50 Exh.
In our view far from running companynter to the prosecution theory, the companytents A this letter lend support to the prosecution case fully and this effect of the letter Ext.
7.50, the identical amount being mentioned both in figures and words, but some time later it was interpolated by adding the, figure of 160 before the figure 7 inflating the amount to Rs.
1607.50 in figures without altering the amount in words in other words, as altered the bill showed the amount as Rs.
His further evidence has been that he never presented this voucher cum receipt to the appellant accused number did he receive any payment of Rs.
According to the prosecution in the month of December 1969 a proprietary firm M s A. G. Patni Co. had carried out a small job of clearing a choked pipe line of the storage tank of the Society and had submitted its bill No.
1607.50 Ext.
He was shown the voucher cum receipt dated April 3, 1970 and he asserted that the signature B. A. Sagar appearing thereon was number his signature at all.
The prosecution story was that for the sake of companyvenience and facility of work a practice was followed in the Society that at a 1 time about 8 to 10 blank cheques used to be signed by Doongaji PW1 first and then by K. N. Singh PW12 and the cheque book companytaining such signed blank cheques used to remain in the custody of the appellant accused and whenever payment was required to be made by cheque the appellant accused used to write the body of the cheque in his own hand and make the by issuing the same that as regards bill No.
It was pointed out that this evidence of the witness companyld number be accepted inasmuch as the witness had passed a receipt produced at Ext.
The trial Court has wrongly regarded this letter as running companynter to the prosecution theory.
505.07p that Sagars evidence that he had number gone to the office in the month of April, 1970 after his retirerment was acceptable and, therefore, the accuseds version that he had first paid cash to Sagar and had replenished cash by issuing and encashing the bearer cheque was utterly false and he had dishonestly misappropriated the amount.
Holding that the prosecution had established its case against the appellant accused beyond doubt, the High Court companyvicted him of all the charges levelled against him.
This explanation given by the witness cannot be regarded as satisfactory inasmuch as the receipt Ext.
But the prosecution case was that the appellant accused fraudulently or dishonestly used as genuine the said bin and the said typed voucher receipt knowing or having reason to believe that these documents were forged for the purpose of issuing a bearer cheque for the said inflated amount and misappropriating the same.
Thus, according to the prosecution, the appellant accused on or about April 3, 1970 dishonestly used as genuine two forged documents, namely, the bill No.
It found that the Society had number got so much cash with it on or about April 3, 1970, that the cash balance on hand with the Society for quite some time prior to April 3, 1970 was only Rs.
10 and the F.I.R. lodged by Doongaji on October 17, 1970 was produced at Ext.
