Judgment:
Virender Singh, J.
1. Mahesh Inder Singh, the petitioner herein, stands convicted by the learned Judicial Magistrate, 1st Class, Phagwara vide impugned judgment dated 07.02.1989 under Section 420/468 IPC and has been sentenced to undergo RI for one year and to pay a fine of Rs. 2000/- under Section 420 IPC and in default of payment of fine to undergo further RI for one month; to undergo RI for one year and to pay a fine of Rs. 2000/- under Section 468 IPC and in default of payment of fine to undergo further RI for one month. However, both the sentences are ordered to run concurrently. Aggrieved by the impugned judgment of conviction and sentence, he preferred an appeal and the same also stands dismissed vide impugned judgment dated 12.07.1989 of learned additional sessions Judge, Kapurthala. Hence, this revision.
2. It is worth-mentioning here that one Surjit Kaur wife of Kashmir Singh, resident of Mattalu, Tehsil Phillaur, District Jalandhar was also booked along with the present petitioner but she was declared Proclaimed. Offender during trial. It has been brought to my notice that till the dismissal of the appeal, she was not arrested by the prosecution agency. Learned State counsel has also submitted that he is not aware of the fact as to whether she has been ever arrested in this case to face trial.
3. The petitioner was a Head Clerk in State Bank of Patiala, Phagwara. The present case was registered by Shri D.R. Budhiraja, Branch Manager, State Bank of Patiala, Phagwara on 31.08.1982 on his written complaint alleging therein that one Mohinder Kaur wife of Piara Singh, resident of village Khera had a saving bank account No. 11492 with the State Bank of Patiala but the depositor has not made any withdrawal or deposit in the said account since long. The last deposit was made in her account on 04.11.1978. On 17.03.1982 the pass book of Mohinder Kaur was produced before the Bank authorities by one Gurdial Singh for its completion and at that time the concerned dealing clerk noted that from the said amount a sum of Rs. 5,000/- was withdrawn on 23.12.1981, Rs. 5000/- on 30.12.1981 and another amount of Rs. 5500/- on 28.1.1982. The enquiry further reveals that this amount was withdrawn by someone else representing herself to be Mohidner Kaur by signing and presenting three withdrawal forms of different dates. On these allegations a formal FIR Ex.PWI3/A was got recorded. The police took into possession the three withdrawal forms vide which the amount was withdrawn from the aforesaid saving account. The account opening form as well as the photographs for opening an account in the name of Surjit Kaur was also taken by the investigating agency. The specimen handwriting/signatures of the present petitioner and Surjit Kaur were obtained and those were sent for comparison to the Scientific Officer (handwriting) in the Forensic Science Laboratory, Punjab, Chandigarh. During the investigation, statement of Surjit Kaur was also recorded in which she has stated that the present petitioner was getting the amount withdrawn through her on the pretext that her sister Mohidner Kaur was ill and could not come.
4. After completion of the investigation, the present petitioner was sent for trial. He was charged under Section 419/420/468 IPC.
5. The prosecution in support of its case had examined as many as 13 witnesses. I shall be discussing the statements of the relevant witnesses at the appropriate stage.
6. The defence taken up by the petitioner as emerges from his statement recorded under Section 313 Cr.P.C. is that he has been falsely implicated in this case as he was President of the Union of state Bank of Patiala and was also office bearer of other Bank Employees Federation and was having strained relations with Shri D.R. Budhiraja, the then Bank Manager. In defence also the petitioner had examined Mohidner Lal Gupta as DW1, Avtar Singh Malhotra as DW2 and tendered certain documents.
7. I have heard Mr. K.S. Nalwa, learned counsel for the petitioner and Mr. Ashish Verma, learned Assistant Advocate General, Punjab. With their assistance, I have also gone through the entire record.
8. Learned counsel for the petitioner with full vehemence has submitted that both the courts below have not properly appreciated the evidence led by the prosecution and this has resulted into miscarriage of justice. Advancing his arguments, the learned counsel has submitted that both the courts below have not taken in to account the fact that the duty assigned to the present petitioner was to fill up the forms of illiterate persons so that they did not feel any inconvenience. Des Raj Budhiraja PW7 has also admitted this fact in his cross examination while replying to a specific question put to him regarding filling up of withdrawal forms Ex.P1 to P3.
The other argument advanced by the learned counsel is that the present petitioner had no connection with the making of payment as it was to be made by the Cashier only and in this regard my attention has also been drawn to the cross examination of PW7 D.R. Budhiraja wherein he has specifically stated that no payment could be made till the cheque/voucher is signed on the back of the cheque/voucher and the voucher dated 30.12.1981 for Rs. 5000/- shows that the amount was taken by Mohinder Kaur herself. He has further stated that as per the procedure of the Bank, the money withdrawn is paid after getting the signatures tallied with the specimen signatures already with the Branch. From this, the learned counsel develops that if any irregularity has been committed at the time of tallying the specimen signatures or completing the other necessary formalities, the present petitioner cannot even be remotely connected with the same.
9. The learned counsel for the petitioners then contends that even the report of the scientific Officer (Handwriting) Ex.PW12/1 does not support the ease of the prosecution as the expert has not been able to express any definite opinion on the questioned signatures (Q1 to Q6) when they were compared with the specimen writing of the petitioner (S1 to S78)
10. The other limb of arguments advanced by the learned counsel for the petitioner is that even otherwise both the Courts below have given much weightage to the statement of Surjit Kaur Ex.PW2/C whereas the said statement cannot be legally taken into account against the present petitioner being a statement of an accused against the co-accused. In support of his contentions, learned counsel has relied upon the judgment of Hon'ble Apex Court rendered in Suresh Budharma Kalani Alias Pappu Kalani v. State of Maharashtra, A.I.R. 1998 Supreme Court 3258.
11. Relying heavily on the aforesaid submissions, the learned counsel states that the prosecution case is on slippery wicket qua the present petitioner and as such he deserves acquittal.
12. Learned state Counsel has however, refuted all the arguments advanced by the learned counsel for the petitioner and has submitted that the petitioner does not deserve acquittal as both the Courts below after appreciating the entire evidence found him guilty for the charge.
13. After hearing the rival contentions of both the sides, I am of the view that the prosecution has not been able to bring home the quilt to the present petitioner.
14. In my view, both the courts below have in fact presumed the forgery against the petitioner whereas it has to be proved by cogent evidence. The mis-reading of the evidence in this case has also resulted into miscarriage of justice. For this reasons, I have felt the necessary of re-scanning the entire evidence in this case for the purposes of satisfying the correctness, legality or propriety of the finding.
15. From the evidence adduced, it is very clear that the job assigned to the present petitioner was to fill up the forms of illiterate persons so that the customers did not feel any inconvenience in the Bank. This fact is admitted by Shri D.R. Budhiraja PW7. So far as withdrawal of money is concerned, the present petitioner cannot be connected with the same as it was assigned to some other official of the Bank. It is not the case of the prosecution at all that the present petitioner had to verify the specimen signatures of the depositor at the time of withdrawal. It is otherwise admitted by Shri D.R. Budhiraja PW7 in his cross-examination that no payment can be made till the cheque/voucher is signed on the back of the cheque/voucher and that the signatures on the withdrawal forms are to be tallied by the specimen signatures. Concededly, this was not the job of the petitioner at all. Simply that he had filled up the withdrawal forms in which Surjit Kaur i (since declared Proclaimed Offender) impersonating as Mohinder Kaur had allegedly withdrawn the amount, the present petitioner cannot be said to have committed any forgery.
16. The prosecution agency during the investigation had also obtained specimen signatures and specimen writing of the present petitioner to tally it with the questioned documents. The signatures of Surjit Kaur and Mohinder Kaur were also taken during investigation. As per report Ex.PW12/l of the Scientific Officer (Handwriting) the present petitioner is not linked with the signatures on the withdrawal forms. Even if the withdrawal forms indicate that the said forms are in the hands of the present petitioner, that by itself would not being the case of the present petitioner within the four corners of forgery punishable under Section 468 I.P.C. The petitioner thus deserves acquittal for this charge.
17. At the same time, the other charge of Section 420 I.P.C. is also not proved in this case. Both the courts have taken into account Ex.PW2/C a statement (confessional) allegedly made by Surjit Kaur, the co-accused of the present petitioner in which she has also indicated the role played by the present petitioner in withdrawing the said amount. The said statement legally cannot be read against the petitioner being inadmissible in evidence. The judgment in Suresh Budharama Kalani alias Pappu Kalani's case (supra) relied upon by the learned counsel for the petitioner is squarely applicable to the case of the present petitioner in my considered view, Ex.PW2/C the statement of Surjit Kaur has to be ignored altogether against the present petitioner.
18. Thus, there remains no legal evidence with the prosecution to prove any of the two charges framed against the petitioner.
19. Consequently, the present revision petition is allowed. Both the impugned judgments are set aside being manifestly illegal, unjust and perverse and the petitioner is ac quitted of the charges. He is discharged of his surety bond submitted by him during the pendency of the present revision petition.