Judgment:
ORDER
Sheema Ali Khan, J.
1. Six persons have filed these appeals. Out of which, Narendra Prasad Verma, appellant of Criminal Appeal No. 397 of 2001 died during the pendency of the appeal. The appellants have challenged the judgment passed by the Special Judge, Central Bureau of Investigation, North Bihar, Patna in Special Case No. 08 of 1989 R.S. No. 5A/1989. All the appellants are Government employees except Gyan Prasad Verma. Gyan Prasad Verma, appellant in Criminal Appeal No. 407 of 2001 has been sentenced to undergo rigorous imprisonment for two years under Section 120B read with 420 of the Indian Penal Code, rigorous imprisonment for two years under Section 467 of the Indian Penal Code and rigorous imprisonment for two years under Section 468 of the Indian Penal Code.
2. Vidyanand Jha, appellant in Criminal Appeal No. 391 of 2001 has been sentenced to undergo rigorous imprisonment for two years each under Section 120B, 420, 467 & 468 of the Indian Penal Code and rigorous imprisonment for two years under Section 13(i)(c) and 13(i)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and fine of Rs. 10,000/- under the aforesaid Sections. In default of payment of fine, the appellant would have further to undergo rigorous imprisonment for six months.
3. Rahmat Hussain, appellant in Criminal Appeal No. 391 of 2001 has been sentenced to undergo rigorous imprisonment for two years under Section 120B of the Indian Penal Code, rigorous imprisonment for two years under Section 420 of the Indian Penal Code, rigorous imprisonment for two years under Section 467 of the Indian Penal Code, rigorous imprisonment for two years under Section 468 of the Indian Penal Code, rigorous imprisonment for two years under Section 13(i)(c) and 13(i)(d) read with 13(2) of the Prevention of Corruption Act and a fine of Rs. 10,000/- under the aforesaid sections. In default of payment of fine, the appellant would have further to undergo rigorous imprisonment for six months.
4. Naresh Sharma, appellant in Criminal Appeal No. 401 of 2001 has been sentenced to undergo rigorous imprisonment for two years under Section 120B of the Indian Penal Code, rigorous imprisonment for two years under Section 420 of the Indian Penal Code rigorous imprisonment for two years under Section 468 read with 471 of the Indian Penal Code, rigorous imprisonment for two years under Section 13(i)(c) and 13(i)(d) read with 13(2) of the Prevention of Corruption Act and a fine of Rs. 10,000/- under the aforesaid sections. In default of payment of fine, the appellant would have further to undergo rigorous imprisonment for six months.
5. Surendra Jha, appellant in Criminal Appeal No. 397 of 2001 has been sentenced to undergo rigorous imprisonment for two years under Section 120B of the Indian Penal Code, rigorous imprisonment for two years under Section 420 of the Indian Penal Code, rigorous imprisonment for two years under Section 467 of the Indian Penal Code, rigorous imprisonment for two years Section 468 of the Indian Penal Code, rigorous imprisonment for two years under Section 13(i)(c) and 13(i)(d) read with 13(2) of the Prevention of Corruption Act and a fine of Rs. 10,000/- under the aforesaid sections. In default of payment of fine, the appellant would have further to undergo rigorous imprisonment for six months.
6. All the sentences mentioned aforesaid are to run concurrently.
7. The prosecution case is that the informant learnt from the reliable sources that the appellants aforesaid during the period July and August, 1988 in connivance of other unknown persons dishonestly and fraudulently by using their official positions not only issued railway tickets for different destinations against forged police railway warrants but also caused wrongful loss to the extent of Rs. 22, 517/-.
8. The contention on behalf of the appellants is that the appellants did not utilize forged railway warrants and even if the railway warrants were forged, they had no knowledge or reliable sources to know that the warrants were forged. It is submitted that at no point of time was there a complaint of any sort that the warrants were forged or that the railway had met any loss due to the issuance of railway tickets against the warrants in question. It is contended that the prosecution has failed to prove that the warrants were forged and has grossly failed to substantiate the charges levelled against the appellants. The sanction for prosecution is without proper authority and that the evidence does not disclose any offence under Sections 467, 468 or 471 of the Indian Penal Code.
9. Learned Counsel appearing on behalf of the appellants have contended that the judgment of conviction is erroneous on law and facts. The prosecution has not been able to prove the charges.
10. In the aforesaid context, the attention of the Court has been drawn to the charges which have been levelled against each of them. The charges against Gyan Prasad Yadav differ to some extent. It is relevant to quote the charges of one of the appellants to bring home to demonstrate the point made out by the appellant.
Charge With Six Heads
I, Narendra Mishra, Special Judge C.B.I., North Bihar, Patna do hereby charge you; Bidyanand Jha as follows:
Firstly, that you during the period July 88 to August 88 at Saharsa cheated Railway Administration its staff and its passengers by dishonestly and fraudulently inducing them to deliver certain property to which 2,391/- which was the property of the Railway and thereby committed an offence punishable Under Section 420 of the I.P.C. and within my cognizance.
Secondly, that you during the aforesaid period and placed forged certain document purported to be valuable property to which Railway Warrant No. 043526/000036 dt 6-8-88 and 046376/00046 dt 12-8-88 and that you thereby committed an offence punishable Under Section 467 of the I.P.C. and within my cognizance.
Thirdly, that you during the aforesaid period and placed forged certain documents to which aforesaid Railway warrant intending that these shall be used for the purpose of cheating and that you thereby committed an offence punishable Under Section 468 of the I.P.C. and within my cognizance.
Fourthly, that you during the aforesaid period and place fraudulently or dishonestly used a genuine certain documents to which aforesaid Railway warrants which you knew or had reasons to believe at the time you used it to be forged documents and that you thereby committed an offence punishable Under Section 468 r/w 471 of the I.P.C. and within my cognizance.
Fifth, that you being a public servant employed at the post of relieving commercial clerk, N. F. Railway, Saharsa during the aforesaid period and place misappropriated or converted to your own use certain property to which Rs. 2,391/- entrusted to you under your control as a public servant or allowed so to do that you thereby committed an offence punishable Under Section 13(1)(c) of the P.C. Act 1988 r/w Section 13(2) of the said act and within my cognizance.
Sixthly, that you during the aforesaid period and place the above capacity, by corrupt and or illegal means or by otherwise abusing your position as public servant obtained yourself or for any other person pecuniary advantage to the extent of the aforesaid amount and that you thereby committed an offence punishable Under Section 13(1)(d) of the P.C. Act 1988 r/w 13(2) and within my cognizance.
And I hereby direct you to be tried for the said charges. Charges have been read over and explained to the accused to which he pleaded not guilty.
11. I would like to emphasis charge No. 2 made against each of the appellants. Each appellants have been charged separately for utilizing certain warrants. The warrant numbers are given in the charge.
12. It has been argued that the fact that these charge has not been proved at all by the prosecution. Referring to paragraphs 22 to 36 of the evidence of PW 3 wherein Prem Kumar Biswas has specifically identified the handwriting on the warrant in column 7 to 10 and specified the person who had filled in the column in the said warrants. It would be difficult to give the details of the evidence of each and every paragraph aforesaid and therefore, a chart has been prepared which would indicate the allegation according to the First Information Report, the person who is charged for the offences and the handwriting as proved by PW 3. The chart also specifies which of the appellants had filled the warrants and issued tickets to police personnel against the warrants, Learned Counsel for the appellants have demonstrated that the charges have not been proved. The chart is given hereinafter:
-----------------------------------------------------------------------Sl. According to FIR Chargesheeted Charge ProvedNo. & chargesheet against frame againstagainst1 036278/000038 Gyan Pd. G.P. Yadav N.P. VermaYadav (D)2 0435261/000036 Bidyanand Jha B.N. Jha N.P. Verma(D)3 026605/000034 G.P. Yadav G.P. Yadav SurendraJha4 022513/005 Rahmat R. SurendraHussain Hussain & JhaG.P. Yadav5 052475/00006 None None SurendraJha6 052515/000022 Surendra Jha Surendra N.P. VermaJha (D)7 051376/000080 G.P. Yadav None N.P. Verma(D)8 046376/000040 Bidyanand Jha B.N. Jha SurendraJha9 083254/000014 G.P. Yadav & N.P. Verma N.P. VermaN.P. Verma (D)10 026608/000037 G.P. Yadav & G.P. Yadav Surendra JhaSurendra Jha11 061495/000052 G.P. Yadav G.P. Yadav N.P. Verma(D)12 076255/000079 G.P. Yadav & G.P. Yadav NareshNaresh & Naresh SharmaSharma Sharma13 013662/00050 G.P. Yadav & N.P. Verma N.P. VermaN.P. Verma (D)14 021815/010 Rahmat R. Hussain SurendraHussain Jha15 070531/090 None R. Hussain SurendraJha16 022611/011 None R. Hussain SurendraJha-----------------------------------------------------------------------
13. I may also point out that the handwriting of these appellants was taken by comparing the handwriting to the handwriting in the attendance register which has also been made exhibit in this case. The handwriting of the different appellants has been identified by PW 3 for e.g. the handwriting of Shailendra Jha taken from the attendance register has been marked as Exhibit 2/1 and so on. In this manner, PW 3 has not only proved the handwriting on the attendance register which was seized during investigation and marked as exhibit, but also has identified the handwriting on each and every warrant and stated the name of one or the other appellants who prepared the warrants. On the basis of the aforesaid chart, it would appear that appellant Vidyanand Jha, Rahmat Hussain and G.P. Yadav have not filled in any of the 16 warrants which were allegedly forged. Against appellant Surendra Jha, the charges disclosed that he had utilized only one warrant whereas PW 3 has proved his handwriting on eight railway warrants. Against appellant Naresh Sharma it is alleged that two railway warrants were utilized by him, whereas from the evidence of PW 3, it is apparent that he had only filled one railway warrant. Therefore, learned Counsel for the appellants submits on the basis of the aforesaid evidence infact the charges framed against the appellants during the trial have not been substantiated and this in itself is sufficient to acquit the appellants in this case.
14. Before addressing the other contention that has been placed in this case, it is relevant to refer certain documents. Exhibit 1 to 1/7 are railway warrants in the pen & signature of Shailendra Jha. Exhibit 2 to 2/3 is the endorsement of Shailendra Jha on the register. Exhibit 3 is the attendance register from October, 1988 to October, 1989. Exhibit 4 to 4/2 and 19 to 19/2 are the railway warrants and the signature and writing of the different appellants on each of the railway warrants. Exhibit 20 to 20/2 is the sanction order. Exhibit 21 to 21/5 is the attendance register which has been utilized. for the purpose of proving the handwriting of the appellants. Exhibit 22 onwards to 25/3 is the DTC. Exhibit 26 is the letter written by B.K. Dubey. Exhibit 27 is the First Information Report. The specimen handwriting of the appellants is exhibit 28, 29, 30, 35/4 and exhibit 32 to 32/1 is the signature of the handwriting expert.
15. I shall first discuss the evidence of the witnesses in order to examine whether the allegations as set out in the First Information Report and charges framed have been substantiated.
16. PW 1 Arun Kumar Malhotra is an employee of Gaya Printing Press. This witness has been examined to show that the railway warrants are printed in the Gaya Printing Press. In the chief, this witness states that the 16 railway warrants have not been printed at Gaya Press for the reason that the code number of the Gaya Press has not been printed on the warrants. It is alleged that there are spelling mistakes in the warrants, the length and the breadth of the warrants is also not in accordance with the warrants printed at Gaya Press. According to this witness, there are printing errors in the warrants and the format which has been utilized is also not the same as the one which is utilized by the Gaya Press. This witness in his chief states that the warrants which are marked as 'X' to 'X/15' for identification could be mistaken to be the original warrants by any person and further states that the Investigating Officer had not taken specimen of the original railway warrants during the investigation. In the cross-examination, he reiterates the fact that warrants was not submitted to the Investigating Officer and he has not brought the original warrants to mark exhibit before the court. At paragraph 7, this witness states that original warrant reads as 'BHINN TARIKE SE NAHIN HOTI HAI'. This witness is not very useful for the prosecution as he is the only witness who could have pointed out the differences in the original railway warrants and the warrants which had been seized and were marked 'X' to 'X/15' if he had produced an original warrant printed by Gaya Printing Press.
17. PW 2 Prem Kumar Sinha was posted as the Assistant Sub-Inspector, Special Branch, Patna between year 1977 to 1989. He has deposed that Mr. N.N. Sinha was Incharge of maintenance of register of railway warrants. The aforesaid Mr. Sinha has retired and has, therefore, not come to depose. He has stated that the railway warrants are not genuine as the page number is not correct and they contain six digits. In the cross-examination, this witness has stated that the dispatch register and receipts of the year 1977 to 1989 have not been produced in Court and, therefore, he cannot give details regarding when the said warrants were issued. He further states that the general railway forms have not been given to the Central Bureau of Investigation although the stamps between 1977 to 1989 have been submitted before the Central Bureau of Investigation. He further states that warrants X to X/11 are not forged and that a lay man on a look at these warrants would not be able to decipher that the warrants are forged ones. In his cross-examination, he also states that he cannot say whether three-digits are printed on the railway warrants. The requisition sent to the Gaya Press is also not with him which would indicate whether warrants have been issued to the Gaya Press.
18. Pranav Kumar Biswan, PW 3 was the Head Booking Clerk at the relevant period. In his evidence, he has stated that Surendra Jha was Relieving Commercial Clerk at Saharsa, Naresh Sharma was the Booking Clerk, Narendra Prasad Verma was the Head Booking Clerk, Vidyanand Jha and Rahmat Hussain were also the Head Booking Clerks. At paragraph 2, this witness has stated that he knows the procedure in which railway warrants are issued. Railway warrants are in two copies; one portion is given to the police party who is traveling and the second part is sent to the Cash Office, Samastipur. Railway printed card tickets are issued against the railway warrants. The tickets are issued and noted in the B.P.T. Register. The B.P.T. Register is maintained by the Booking Clerk. Thereafter, this witness goes on to identify the handwriting of each of the appellants on the warrants as well as on the tickets issued and these have been marked as Exhibit 1 to 7. This witness at paragraph 15 states that the ticket entry is made in the DTC book and identifies the various ticket numbers which have been noted in the DTC book and also identifies the handwriting of the person who has made the entry. These have been marked as Exhibit 2 to Exhibit 2/19. At paragraph 39, this witness states that he has performed the work of Booking Clerk and also states that he has had no departmental training which would have helped him to identify genuine warrants. According to this witness, the police warrant number is noted in the Cash Remittance Note (C.R. Note). He states that he received the warrants and they appeared to be genuine and therefore, they were sent to the Cash Office at Samastipur. There was no objection from the Cash Office at Samastipur with respect to the warrants in question. This witness is also the person who has identified the handwriting of the appellants on the attendance register and claims to know and identify the writings of all these appellants. This witness is the most important witness as he is the person who had identified the handwriting of the appellants on the warrants which have been proved by him as Exhibit 4 series. As per analysis, it would appear that the charges would fail as there is a difference in the charges and the identification made by PW 3 on the 16 warrants which are the subject matter of this case.
19. PW 4 has proved the sanction order which has been marked Exhibit 20 series.
20. PW 5 was posted as the Assistant Commercial Manager -cum- Divisional Manager in the Railways. According to this witness, the warrant presented for issuing the ticket has to be checked on the booking counter to see (i) whether the warrant contains the machine number, (ii) Whether the seal should be at the correct place, (iii) Whether the signature of the concerned Officer is on the warrants in question, (iv) whether the entry in columns 1 to 4 has been correctly stated, (v) whether the columns 5 to 7 have been filled in by the Booking Clerk. According to this witness, the warrants are issued from the Office of the General Manager. This witness described the procedure for issuing tickets against the warrants and refers to the various rules regarding the procedure. At paragraph 11, PW 5 specifically states that he does not know the appointing authority of the Booking Clerks.
21. PW 6 has proved the attendance register dated 01.10.1986 to 30.09.1988 containing 79 pages. The handwriting of appellant Rahmat Hussain has been marked as Exhibit 21/1 to 21/5 daily ticket cash book between 21.07.1988 to 31.07.1988 has been marked as Exhibit 22 and the relevant part, which contains the handwriting of Nagendra Verma are marked as Exhibit 21 to 21/7; daily cash book dated 11.08.1986 to 20.08.1988 containing 243 pages has been marked Exhibit 23 and the handwriting of N.P. Verma is marked as Exhibit 23/1, DTC Book is marked as Exhibit 24 and pages 41, 71, 81, 171 contained the handwriting of Shailendra Jha whereas pages 121 column 13 contains the handwriting of Nagendra Verma which have been marked as Exhibit 24/5. The DTC Book is marked as Exhibit 25 whereas page 47 column 7 dated 2.7.1988 and column 7 page 63, column 7 page 147 containing the signature of N.P. Verma are marked as Exhibit 25/1 to 25/6. The evidence of this witness at paragraph 13 is relevant as he states that if there is any irregularity or discrepancy, the Cash Office informs the Station Master, and further goes on to say that no such report of irregularity was received by the Station Master. Therefore, this witness is only relevant for the purpose of proving the various exhibits mentioned aforesaid and also for the statement that he has made at paragraph 13.
22. PW 7 was posted as T.I.A. at Gorakhpur. According to him, he was authorized to make enquiry with respect to the 16 warrants which were allegedly forged and fabricated. The order to make such an enquiry has been marked as 'Y' for identification. This witness went to AIG, Wireless, Patna to make enquiries. The AIG of Patna wrote a letter to him which is marked 'Y/1' for identification. Much emphasis has been placed on the document Y/1 by the prosecution which will be discussed later. It is very relevant when this witness states that he could not make any enquiry at all with respect to the sub-station from where the warrant was issued or with respect to the signatures etc. on the warrant as the case was taken over by the Central Bureau of Investigation.
23. PW 8 was the first Investigating Officer in this case. He had signed on the First Information Report and had also prepared the seizure list. The signature on the seizure list has been identified and marked as Exhibit 28 & 28/1 whereas the seizure list has been marked as 'Z' for identification. The evidence of this witness is not very relevant as apart from recording the First Information Report and preparing the seizure list, he has made no further investigation in this case.
24. The last witness to be examined in this case is PW 9 the Assistant Survey Intelligence Officer, Grade-I who was the Investigating Officer in this case. The evidence of this witness does not help the prosecution in any manner whatsoever. According to this witness, he had sent the specimen handwritings of the appellants to the handwriting expert. He also proves Exhibit 30 to 32/1 which are the specimen handwritings of the appellants. It is very interesting to note that at paragraph 7, he has stated that he was working as Lower Division Clerk in the Central Bureau of Investigation. In June, 1989 he was sent on deputation to the Central Bureau of Investigation and that this is his first case that he has investigated. At paragraph 8, he states that he had never issued a railway warrant or he has any knowledge with respect to issuance of the railway warrants. He admits that he had not seized the original railway warrants. This witness further states that he had not received any complaints with respect to the warrants in question. Therefore, the Investigating Officer has hardly made any enquiries or collected any information regarding the use of the 16 forged railway warrants and the role of these appellants in utilizing those warrants.
25. On the basis of the aforesaid evidence, this Court has to give findings regarding the charges made out against these appellants. From the evidence, it transpires that certain railway warrants were utilized for issuing tickets to police personnel. Not a single word or evidence has been collected regarding the aspect that the warrants were forged or even if it is assumed that they were forged, whether the appellants had knowingly utilized them for the purpose of causing loss to the railways.
26. The first charge against the appellants is that they have cheated the railway administration and its staff and its passengers by dishonestly and fraudulently inducing them to deliver certain property and thereby committed an offence under Section 420 of the Indian Penal Code. Section 420 of the Indian Penal Code envisages 'whereby a deceived person is dishonestly induced - (i) to deliver any property to any person or; (ii) to make or alter or destroy; (ii) (a) the whole or any part of a valuable security or; (ii) (b) anything which is signed or sealed and which is capable of being converted into a valuable security.
27. Cheating, and therefore deceit, which is a necessary ingredient of cheating is necessary to be proved before this section applies. This charge of cheating has to be read with Sections 468 and 471 of the Indian Penal Code for which the appellants have been charged. It is alleged that the appellants have committed forgery for the purpose of cheating unless forgery is proved; no offence under Section 468 of the Indian Penal Code can be made out against the appellants. This Court shall examine the material that has come during evidence on the basis of which the appellants were convicted. PWs 1, 2 and 9 are relevant for proving this charge. PW 1 states that he has not brought on record the original warrant which would have been able to help the prosecution and the Court to come to a finding that the 16 warrants utilized by the appellants were forged. Infact, PWs 1 and 2 have both stated that warrants that have been utilized could be mistaken for the original. Although, an attempt has been made by the witnesses to show that the original warrant are different inasmuch as the size, print etc. differs from the warrants in question, this fact has not been proved by these witnesses, which again could only have been done if an original warrant was produced to compare the two or it was examined by an expert. Therefore, the prosecution has not been able to show that the warrants were forged. Counsel for the Central Bureau of Investigation has contended that on a plain reading of the warrant, it would appear that it is forged. Referring to the warrants, Exhibits 4 to 19, it is stated that the rule quoted is defective in many of these warrants. The rule under which the railway warrant is issued is Rule 536 and 575. It would appear that Exhibits 17, 18 and 19 series (which are the warrants) states that Rule 53 and 675. In reply to the aforesaid contention, it has been submitted that out of 16 warrants only three warrants have misquoted the rules. It is submitted that this is a typing error and nothing else and as such this misprinting in the rule can not form the basis of holding that the document is forged. Besides which, the allegation and the evidence of PW 1 indicates that the warrants are forged for the reason that they do not bear the print number of the Gaya Printing Press and also because it differs in size, the format of printing etc. The prosecution has not made out a case that the warrants were forged on the ground that the rule has been misprinted and, therefore, I cannot agree with the contention raised on behalf of the Central Bureau of Investigation. PW 9, the Investigating Officer, has also made no attempts to collect information with respect to the warrants being forged and the least said regarding the manner of investigation, the better. In this context, a submission has also been made on behalf of the appellants that even if it be presumed that the warrants are forged, the prosecution has not lead any evidence to indicate that the appellants had knowledge that these warrants are forged and they were utilizing them for some wrongful gain to cause wrongful loss to the railways. Great stress has been laid by the prosecution and an effort has been made to show that the appellants were responsible for utilizing these warrants and for this purpose produced the attendance register to compare the handwriting of the appellants to the handwriting on the warrants. Infact, the prosecution has based its case on this aspect of the matter. Here, I may clarify that the appellants have not denied that they have utilized the warrants in question for the purpose of issuing tickets to the Police Personnels. Therefore, this aspect of the prosecution case that the appellants have utilized the warrants is not denied during the hearing of these appeals. The appellants, however, deny that they have committed any offence of cheating or have committed any sort of forgery in preparing the warrants. In fact, the prosecution has failed to lead any evidence that any loss was caused to the railways by the use of these warrants.
28. At this stage, I may state that in a case of this type where the allegations is that a forged document was procured or used, it would be incumbent on the prosecution to produce the original to substantiate its case. Mere oral evidence stating that the document is forged because it differs from the original in size and shape, or that format is different to the original cannot be the basis of substantiating that the document is forged.
29. PW 7 has stated that he had addressed a letter to the AIG, Patna making enquiry as to whether the warrants were issued from his Office. This letter has been marked as 'Y' for identification. Surprisingly, PW 7 did not know either the contents or writing of letter marked 'Y' Similarly, emphasis has been led on letter marked Y/1 which is said to have been issued by the AIG, wireless stating therein that the warrants were not issued from his office. Both these documents have not been marked exhibit in this case. This document has also not been formally proved by the author or otherwise by any person from the Office of the AIG, Wireless. Thus, this Court cannot rely on these two documents to hold that the warrants are forged. Infact, after going through the entire evidence which I have discussed in some details above, the prosecution has not made out a case either of cheating or of forgery against the appellants. Therefore, the offences under Sections 420 and 468 of the Indian Penal Code have not been proved against the appellants.
30. Other circumstances for proving that the appellants have committed forgery and cheated the railways by misappropriating the funds by using forged warrants would be that the prosecution should be in a position to establish that actual loss was incurred because of the acts of the appellants. The evidence is similarly lacking on this aspect of the matter. PW 3 has stated that on receiving a copy of the warrants in the Cash Office, an objection can be raised if it is found that it is forged or not in accordance with the rules and regulations. This witness however states at paragraphs 42 and 43, states that no one can decipher whether the warrants were forged or the original. PW 3 has stated at paragraphs 39 and 43 that the Cash Office had not returned a single warrant which would indicate that the warrant was forged or fabricated. In this context, the evidence of PW 7 would be important. He has specifically stated in his chief that he had handed over the case to the Central Bureau of Investigation and, therefore, he did not get an opportunity to make any enquiry in this case. On the other hand, PW 9 who is the Investigating Officer of this case has stated that he had not seized any documents such as railway warrants, stock register, foils from the Office of the Booking Clerk, the tickets which were to be collected from the destination for which they were issued along with the warrants. He further states at paragraph 11 that he had never received any letters or information from the department which would indicate that there was any loss to the department. The tenor of the evidence lead in Court below indicates that the prosecution has miserably failed to prove their case and infact no offence under Section 420, 468, 471 of the Indian Penal Code is made out against the appellants.
31. A lot of emphasis has been placed by the Trial Court and Counsel appearing on behalf of the Central Bureau of Investigation to the fact that specimen handwritings of the appellants were taken by the Central Bureau of Investigation and sent to a handwriting expert to compare the handwriting of the appellants to the handwriting on the warrants. The opinion of the handwriting expert has been marked as exhibit 32 series. However, the handwriting expert has not been examined and as such the appellants are prejudiced as they have not been able to cross-examine the handwriting expert. The specimen signatures sent to the expert has also not been exhibited has not been marked as exhibit and as such it cannot be taken into consideration for the purpose of coming to any sort of findings by this Court.
32. An argument was raised that the sanction order is not by a competent authority. However, the appellants have given up this plea and as such this Court need not record any finding on this aspect of the matter.
33. Lastly, it has been submitted that the statement made under Section 313 of the Code of Criminal Procedure is grossly inadequate. None of the charges were put to the appellants and the appellants were merely asked as follows:
1- xokgksa ds c;ku lquk gS
mRrj% th gkWa A
2- ekg tqykbZ ,oa vxLr lu~ 1988 esa lgjlk jsyos LVs'ku ,u0bZ0 jsyos esa cqfdax DydZ dh gSfl;r ls inLFkkfir Fks
mRrj% th gkWa
3- mDr vof/k esa vki 'kM;a= dj tkyh jsyos okjaV ds vk/kkj ij fVdV tkjh dj jsyos dks 22]517@& ckbZl gtkj ikWap lkS lRrjg :i;k :i;k dk uqdlku igqWapk;k D;k dguk gS
mRrj% th ugha A
4- lQkbZ esa dqN dguk gS
mRrj% eS funksZ'k gwawW
5- D;k cpko lk{; Hkh nsuk gS
mRrj% eSa fy[kdj nsuk pkgrk gWaw ,oa cpko es lk{; Hkh nsuk pkgrk gwWa A
34. The Supreme Court has held time and again that the 'procedure under Section 313 of the Code of Criminal Procedure is not an empty formality' and it should be strictly followed by the Courts. The purpose for asking questions for examination under Section 313 of the Code of Criminal Procedure is to afford the accused person an opportunity of explaining any incriminating circumstances so appeared in the evidence against him. The accused may or may not avail the opportunity for offering this explanation. In this case, the statement under Section 313 of the Code of Criminal Procedure is cryptic and has no nexus with the allegations or the evidence led in the Court. The fact that the so-called incriminating evidence was not put to the appellants would also lead this Court to conclude that the trial would be vitiated on this ground as well. There is no compliance of the provisions of Section 313 of the Code of Criminal Procedure at all in this case. The important and duty of the Court to put questions to the accused during the trial to enable him to explain any of the circumstances appearing in evidence against him, separately and distinctly emphasized in judgments failure to put the incriminating evidence that has come up during trial to the accused will vitiate the trial. The leading cases on this issue are (i) Asraf Ali v. State of Assam 2008 (3) BBCJ IV 521, (ii) S. Harnam singh v. the State (Delhi Admn.) : AIR 1976 Supreme Court 2140, (iii) Madan Lal and Anr. v. State of H.P. : (2003) 7 SCC 465 and Jai Dev and Hari Singh v. State of Punjab : AIR 1963 Supreme Court 612.
35. As far as the accused Gyan Prasad Yadav is concerned, he is a private person. Against him, the charges are that he is supposed to have delivered certain forged documents, i.e. railway warrant No. 022513/005 dated 11.07.1988, 02660/000047 dated 06/07/1988, 0614595/000052 dated 01/08/1988, 0162155/000079 dated 03/08/1988, 031662/000050 dated 07/08/1988 and 036278/000038 dated 07/08/1988. Not an iota of evidence has been laid to show that these documents were forged and delivered by Gyan Prasad Yadav. None of the witnesses have stated that the documents were recovered from the possession of this appellant. The witnesses have not been able to show how Gyan Prasad Yadav was connected with the warrants or what the role of Gyan Prasad Yadav was in the entire episode. As far as Gyan Prasad Yadav is concerned, it is literally a case of no evidence and as such this Court finds that the offence under Sections 420, 467, 468 of the Indian Penal Code are not made out against the appellant Gyan Prasad Yadav.
36. Having discussed the entire evidence, the exhibits which were relevant in this case, the charged and other materials on record, this Court finds that the prosecution has not been able to prove its case against all the appellants.
37. In the result, all these four appeals are allowed and the judgment and order dated 19th October, 2001 is set aside. All the appellants are acquitted of the charges levelled against them. They are also discharged from the liabilities of the bail bonds furnished earlier in this case.