T.R. Handa, J.
1. Shri Hari Ram appellant in Criminal Appeal No. 43 of 1976,-was accused of and tried for the offences tinder Section 120-B, 409 read with Sections 109 and 467, IPC by the Sessions Judge, Bilaspur. The learned Sessions Judge vide his judgment recorded ort 28-8-1976 acquitted this appellant of the offences Under Section 120-B as also Under Section 409 read with Section 109, IPC but convicted him for the other offence Under Section 467, IPC For this conviction Shri Hari Ram appellant was sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 500/- and in default of payment of fine to undergo simple imprisonment for one month.
2. Criminal Appeal No. 43 of 1976 has been filed by Shri Hari Ram convict against the aforesaid order of the Sessions Judge convicting and sentencing him for the offence Under Section 467, T. P. C. Criminal Appeal No. 11 of 1977 has been preferred by the State against the order of the learned Sessions Judge in so far as it operates to acquit Shri Hari Ram accused for the offences Under Sections 120-B and 409/109, IPC Criminal Appeal No. 12 of 1977 has been filed by the State praying for enhancement of the sentence imposed upon Shri Hari Ram convict for the offence Under Section 467, IPC
3. Since all these three appeals arise out of the same judgment, they are being disposed of by this common judgment.
4. The main accused of this case was one Pratap Singh who absconded and hence could not be put upon his trial. The case for the prosecution is that Pratap Singh absconder was the Secretary of the District Soldiers Sailors and Airmen's Board, Bilaspur (hereinafter referred to as 'the Board') during the period December 1959 to June 1969. The Deputy Commissioner, Bilaspur was .the ex-officio President of the Board. The accused joined this Board as a Peon in 1964 and was still holding this post when he preferred his appeal in this Court. The Board looks after the welfare of the serving, retired killed and disabled Army personnels and their families. The Secretary of the Board is the Chief Officer of the Board and in that capacity he attends to the correspondence with the Board as also maintains the accounts of the Board. He works under the direct control of the Deputy Commissioner.
5. One Shri Prem Lai employed in the Indian Army as a Rifleman was killed in action on Tibet border during the Indo-China war. The Deputy Commissioner, Bilaspur in his capacity as President of the Board moved the State Government in November 1967 for sanction of ex gratia grant of Rs. 2,000/- in favour of Shri Bakshi Ram, the father of deceased Rifleman Prem Lai. The Deputy Commissioner had also moved for similar grants in favour of the dependents of other deceased soldiers. We are, however, not concerned with the other grants recommended by the Deputy Commissioner The ex gratia grant as recommended by the President of the Board in favour of Shri Bakshi Ram was sanctioned by the State Government and such sanction was convey ed by the State Government to the Board vide their letter dated 21-2-1968. In fact the sanction was for an amount of Rs. 4,000/-which included Rs. 2,000/- sanctioned for Shri Bakshi Ram, the father of late Shri Prem Lai. A contingent bill for withdrawal of this sanctioned amount of Rs. 4,000/- was prepared by Pratap Singh Secretary of the Board. The President of the Board endorsed this bill in favour of Pratap Singh Secretary for collecting its payment from the State Bank of India, Bilaspur. On the strength of that endorsement made in his favour, Pratap Singh actually collected the payment of that bill from the State Bank of India, Bilaspur and made an entry in his cash book showing the receipt of such amount. Pratap Singh then showed disbursement of this amount to Shri Bakshi Ram vide entry in his cash book dated 1-3-1968. In support of this entry of disbursement, Pratap Singh prepared an actual payee's receipt which purported to bear the thumb impression of Shri Bakshi Ram. Pratap Singh gave a certificate on that receipt to the effect that the payment of Rs. 2,000/- had been made by him to the right person and on the basis of that certificate the President of the Board counter-signed that receipt.
6. It appears that several complaints were received with respect to the non-payment of the amounts of ex gratia grants to the rightful payees by the Board. It may be remarked that similar ex gratia grants as had been sanctioned in favour of Shri Bakshi Ram had been sanctioned from time to time in favour of the dependents of the other deceased soldiers and all such grants were to be disbursed through the Board. An enquiry into the matter revealed that Pratap Singh Secretary had embezzled a sum of about Rupees 30,000/- pertaining to such ex gratia grants. He had shown these grants as paid to the rightful payees without making actual payments and by forging the receipts of such payees. One of the amounts so embezzled pertained to the ex gratia grant of Rs. 2,000/-which had been sanctioned in favour of Bakshi Ram, the father of Prem Lai deceased. In the course of enquiry it was revealed that in so far as the payment of ex-gratia grant of Rs. 2,000/- to Shri Bakshi Ram was concerned, the actual payee's receipt on the basis of which this payment was alleged to have been made did not bear the thumb impression of Shri Bakshi Ram and on the other hand the thumb impression actually found on this receipt tallied with the thumb impression of the accused.
7. On the above facts it was alleged by the prosecution that the accused had entered into a criminal conspiracy with Pratap Singh in order to commit criminal breach of trust in respect of the sum of Rs. 2,000/- which was payable to Shri Bakshi Ram. On the basis of the same facts the accused was alleged to have abetted the commission of the offence Under Section 409, IPC by Pratap Singh. The accused was further alleged to have committed the offence Under Section 467, IPC inasmuch as his thumb impression was found on the actual payee's receipt which was purported to have been executed by Shri Bakshi Ram.
8. The plea of the accused was that he Was illiterate and if by playing fraud on him his thumb impression had been obtained on the receipt, he did not know. He further added that Pratap Singh absconder had got his thumb impressions on many official papers.
9. We have gone through the record of the case and have also heard the learned Counsel for the parties at length. We have no hesitation in remarking at the very outset that there is absolutely no evidence on the record to connect the accused with any of the offences charged against him and whereas his acquittal for the offences Under Sections 120-B and 409/109, IPC is absolutely justified, his conviction for the offence Under Section 467, IPC cannot be sustained.
10. The prosecution evidence which is found on the record only proves that on the recommendations of the President of the Board a sum of Rs. 2,000/- by way of ex gratia grant was sanctioned in favour of Shri Bakshi Ram, the father of Shri Prem Lai deceased. After the sanction of the State Government for this ex-gratia grant was communicated to the Board, Pratap Singh absconder prepared a contingent bill for withdrawing that amount from the State Bank of India, Bilaspur. That contingent bill was endorsed by the President of the Board in favour of Shri Pratap Singh in order to enable the latter to collect its payment from the Bank. Pratap Singh when actually collected the amount of this bill and made an entry in the cash book of the Board showing the receipt thereof. The actual Payee's receipt purporting to have been executed by Shri Bakshi Ram was then prepared by Pratap Singh who then presented it before the President of the Board along with his own certificate to the effect that the amount of the grant had been disbursed to the rightful payee. It was on the basis of that certificate of Pratap Singh and may be on his oral representation that the President of the Board countersigned that receipt. There is absolutely no evidence to suggest if the accused took any part either in collecting the amount from the Bank or in showing disbursement of the same or even in making the alleged forged receipt. The solitary circumstance which appears against the accused and on the basis of which he stands convicted for the offence Under Section 467, IPC is that his thumb impression is found on the forged actual payee's receipt. In the absence of any other evidence, the mere existence of the thumb impression of the accused who is admittedly an illiterate person and could not know the contents of the receipt, would not suffice to incriminate the accused.
11. The offence of Forgery has been defined in Section 463 of the IPC as under:
463. Whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
The next Section 464, IPC states when a person can be said to make a false document. Reading these two sections together it would be clear that in order to bring home the charge of forgery, the prosecution has to establish that the accused made a false document was made by him dishonestly or fraudulently and with one of the intentions as mentioned in Section 463, 1. P. C. In the instant case as already observed there is not even an iota of evidence to show if the accused had any knowledge of the contents of the actual payee's receipt on which his thumb impression is found to exist or if he was apprised of the contents thereof at the time of obtaining his thumb mark thereon. The plea of the accused that his thumb impression might have been obtained by Pratap Singh by fraud looks not only plausible but also convincing. We must bear in mind that the ac-caused was only a Peon and Pratap Singh was the Secretary and Chief Officer of the Board. The accused, therefore, was neither in a position to disobey Pratap Singh nor doubt his integrity. He being illiterate could not know the contents of the document on which he was required to affix his thumb impression. There is thus every possibility that Pratap Singh obtained his thumb impression on the alleged forged receipt on one pretext or the other. In any case as observed earlier there is absolutely nothing on the record to suggest if the accused acted dishonestly or fraudulently in affixing his thumb mark on the receipt in question. His conviction for the offence Under Section 467, IPC is, therefore, absolutely unjustified.
12. Similarly there is no evidence whatever to support the charge Under Section 120-B, IPC against the accused. With respect to this charge we have only to say that the criminal conspiracy as defined in Section 120-A, IPC is an agreement by two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. The gist of this offence is, therefore, the agreement. Direct proof of the conspiracy is of course seldom available. In a case of conspiracy when there is no direct evidence as in the instant case, inferences from the proved facts and circumstances to a large extent form the basis of the Court's conclusion. In dealing with such cases based on circumstantial evidence, however, an inference of guilt need only be drawn when the circumstances are such as to be incapable of being reasonably explained on any other hypothesis than the guilt of the accused. The only circumstance as appears against the accused and as already stated is that his thumb impression is found to exist on the actual payee's receipt which is found to be forged. This circumstance stands explained by the accused. The explanation offered by the accused is quite reasonable. In the absence of any other circumstantial evidence, it is not possible to infer from this circumstance alone that the accused had entered into any conspiracy with Pratap Singh. It may be remarked that keeping in view the positions which the accused and Pratap Singh were holding in the office of the Board, it looks quite unnatural and unconvincing that Pratap Singh would have reposed any confidence in the accused with respect to his evil design. The more reasonable view appears to be that Pratap Singh would not take the accused into confidence especially when he could have obtained the thumb mark of any labourer or other person on the receipts which he intended to forge and it was not necessary for him to hire the services of the accused for that purpose. In the circumstances there is no case made out for interfering with the order of acquittal recorded by the learned Sessions Judge in respect of the charge Under Section 120-B, IPC
13. The charge Under Section 409/109, IPC is founded on the basis of conspiracy and the same must, therefore also fail.
14. In the result we dismiss both the appeals filed by the State, accept the appeal of the accused and acquit him of all the offences charged against him. The amount of tine if deposited by the accused be refunded to him.