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PETITIONER: BARJURE KAIKHOSROO MAARFATIA

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT16/12/1977

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. GOSWAMI, P.K.

CITATION:  1978 AIR  434            1978 SCR  (2) 479  1978 SCC  (1) 596

ACT: Indian  Penal Code Sec. 408, 461, 471 and  477A-Forgery-Crl. Procedure  Code 1973-Powers of High Court to interfere  with order of acquittal.

HEADNOTE: The  appellant  was prosecuted under section 471  read  with section 461 and section 408 and 477A of the I.P.C. According to  the  prosecution there is a Rosary  Cooperative  Housing Society  Limited, in Bombay.  It owns a building  having  48 Rats.  Doongaji was elected as the Chairman of the  Managing Committee of the Society.  Mr. K N. Singh was working as the figure-head  Secretary  of the Society.  The Society  had  a Bank  Account which was operated jointly by Doongaji and  K. N. Singh.  One B. A. Sagar was working as the estate Manager of  the  Society  and  he  retired  due  to  old  age.   The appellant, who was working as Accounts Clerk in Sir  Dorabji Tata  Trust  was  appointed  by  Doongaji  as  an   Honorary Accountant  of  the  Society.   A  bill  for  Rs.  7.50  was submitted by M/s A. G. R. Patni & Co. The bill was forged by adding  the  figure 160 before the figure  7  inflating  the amount to Rs. 1607.50 in figures without altering the amount in words.  The prosecution case further was that an inflated voucher/receipt  was  also  brought  into  existence.    The prosecution   case  further  was  that  for  the   sake   of convenience and facility of work a practice was followed  in the Society that at a time about 8 to 10 blank cheques  used to be signed by Doongaji and Singh and these used to  remain with  the appellant who used one of such cheques for  making purported  payment of- the inflated bill on the strength  of the  inflated voucher/receipt but converted to his  own  use the proceeds thereof.  The prosecution case further was that the  appellant  wilfully  find with  an  Intent  to  defraud falsified  the books of account of the Society, namely,  the cash book by making therein a false debit entry. The defence of the appellant was that there was no  practice to  keep  in  his custody. the cheque book  of  the  Society containing blank cheques signed by Doongaji and K. N. Singh. According to him the amount of Rs. 1607.50 was paid in  cash by him to Sagar P.W. 2 on the instruction from Doongaji. The Trial Court came to the conclusion that the  prosecution had  failed  to  establish any of the  charges  against  the

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appellant beyond reasonable doubt.  The Trial Court observed that though there was a ring of plausibility and possibility in  the  case  of  prosecution in  respect  of  the  charges levelled against the appellant conviction could not be based merely on possibilities unless the charges were  established against an accused beyond reasonable doubt. In appeal, the High Court reversed the acquittal recorded in favour  of the accused and convicted him of all the  charges that  were levelled against him.  The High  Court,  however, imposed  only  one  day’s imprisonment and  a  fine  of  Rs. 2000/-. The appellant contended               (1)   The High Court had erred in  interfering               with  the  acquittal,recorded  by  the   Trial               Court.   The High Court before  reversing  the               acquittal should have given cogent reasons for               rejecting  the reasoning of the  Trial  Court.               Reliance  was placed on the decision  of  this               Court in Rajendra Prasad v. State of Bihar.               (2)   The entire prosecution case was based on               the theory that about 8 to 10 blank cheques at               a  time  signed by Doongaji’ and K.  N.  Singh               used  to  be  kept  in  the  custody  of   the               appellant.   The Trial Court rightly  rejected               that theory.               4 80               (3)   The  Trial Court rightly held  that  the               reasons  which Sagar mentioned why  he  handed               over  the  bill of Rs. 7.50 to  the  appellant               were unacceptable.               The Counsel for the respondent contended               (1)   The  reasons  given by the  Trial  Court               while  recording the acquittal  .were  clearly               found  to be erroneous by the High  Court  and               High  Court  had  given  proper  reasons   for               reversing such acquittal.               (2)   The  High Court was right in  coming  to               the   conclusion  that  the  prosecution   had               established  its  case against  the  appellant               beyond reasonable doubt and therefore, rightly               interfered with the order of acquittal  passed               by the Trial Court. Dismissing the appeal HELD 1. Rajendra Prasad’s decision related to a case dealing with direct testimony of witnesses whereas the instant  case could  not  be treated as a case where direct  testimony  of witnesses was required to be appreciated. [487FG] Rajendra  Prasad  v.  State  of Bihar,  (1977)  2  SCC  205; distinguished. Vasisdeo  Kulkarni v. Surya Kant, Bhatt and Anr.,  (1977)  2 SCC 208; reiterated. The  High  Court rightly convicted the  petitioner  for  the following reasons               (i)   It  was  the duty, of the  appellant  to               write  and maintain books of accounts  of  the               Society. [488E]               (ii)It was not disputed that Patni & Co. had               submitted  the  ’bill  for Rs.  7,50  and  had               received  neither  Rs. 1607.50 nor  Rs.  7.50.               [488F]               (iii)Any one who came across the bill of  Rs.               7.50  would  have  knowledge  and  reason   to               believe that the same was forged. [488G]               (iv)The  voucher  bore forged  signature  of               Sagar  and forged initials of  Doongaji  whose

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             evidence corroborated the Handwriting Expert’s               opinion. [489A]               (v)   There  was a practice of  both  Doongaji               and K. N. Singh signing the blank cheques  and               keeping them with the appellant. [491A-B]               (vi)The oral evidence is corroborated by the               documentary evidence.               [492E]               (vii)But for the fact that the blank  cheques               were  signed beforehand there was no  need  to               write               under  verbal  orders  of  Mr.  RDD",  in  the               counter foil of the cheque book. [492G-H]               (viii)The    Trial    Court    overlooked               important aspect of the case and therefore the               High   Court   was  justified  in   having   a               reappraisal of the evidence and coming to  its               own conclusions. [495F-G]               (ix)There  was ample evidence to prove  that               the   appellant  bad   mis-_appropriated   the               proceeds of the bearer cheques after the  same               were  handed over to him by the  peon  Shivram               Lad. [496D, 498-B]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 262 of 1975. Appeal  by Special Leave from the Judgment and  Order  dated the  30th September, 1974 of the Bombay High Court  in  Crl. A. No. 176 of 1974, J.P.  Mehta, B. R. Aggarwala and P. B. Aggarwala for  the Appellant. 481 M. N. Phadke and M. N. Shroff for respondent. 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, convicting the  appellant-accused for offences under s. 471 read with S. 467, ss. 408 and 477A of  the  Indian Penal Code and sentencing him to  one  day’s imprisonment  and  a  fine of Rs. 2,000/and  in  default  to suffer  rigorous  imprisonment for six months under  s.  408 with no separate sentence for the offences under S. 471 read with s. 467 and s. 477A I.P.C. The  prosecution  case  against  the  appellant-accused  may briefly  be  stated thus : There is  a  Rosary  Co-operative Housing  Society  Ltd.  in a suburb of  Bombay,  It  owns  a building  having  48 flats of which 23 flats belong  to  the well-known  Tata concerns.  Sir Dorabji Tata Trust  holds  3 flats out of these 23 flats.  It appears that in view of the large number of flats held by the Tatas they wanted to  have a  representation on the managing committee of  the  society and  participate in its affairs.  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.   One K. N.  Singh,  Advocate  (PW12)  was working  as the figure-head Secretary of the  Society.   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).  One B. A. Sagar (PW2)  was working  as the Estate Manager of the Society from April  1,

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1967 and he retired due to old age with effect from December 31,  1969,  where after one Mathew Figrado (PW7)  worked  as Estate  Manager.  As Estate Manager, Sagar’s duties were  to collect  the monthly compensation at the rate of  Rs.  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  committee and incur expenditure therefor either from the collection of compensation or from his own pocket, to draw his own  salary and  the  salary  of  the staff of  the  Society  from  such collections,  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.   However, he was not allowed to spend  more  than Rs.  100/-  at a time for carrying out the  repairs  to  the building.   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.  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 compensation  collected  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  committee of  the  Society and also to make payments by  cheques  only against  the  vouchers after satisfying  himself  about  the genuineness  of the vouchers.  According to the  prosecution in  the month of December 1969 a proprietary firm M/s A.  G. R.  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. 49 dated December 14, 1969  for  Rs. 7.50 (Exh. 5 Colly.). 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 not  disburse the amount to Patni but handed it over to  the appellant-accused.   According to the prosecution this  bill (Ext.  5  Colly.), when it was originally received  and  was handed over by Sagar (PW2) to the appellant-accused was, for Rs.  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. 1607.50 in figures but  rupees seven and fifty paise only in words.  Further, according  to the  prosecution, another document purporting to be a  typed unstamped voucher-cum-receipt dated 3-4-1970 for Rs. 1607.50 (Ext.  5  colly.) connected 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.  The prosecution was unable to say who had actually interpolated and inflated the bill  No.  49 (Ext. 5 colly.) as also who had  brought  into existence  the aforesaid voucher/.receipt (Ex. 5 colly.)  on which  forged  signature  of Sagar and  forged  initials  of Doongaji  appeared.  But the prosecution case was  that  the appellant  accused  fraudulently  or  dishonestly  used   as

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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.  The prosecution  story was that for the sake of convenience  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  containing  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. 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.  5  colly.) made use of one of such blank cheques signed by Doongaji and Singh  by issuing a bearer cheque No. 377137 dated  3-4-1970 for  Rs. 1607.50 in favour of Shivram A Lad (PW8),  Peon  in Dorabji  Tata Trust; that Lad withdrew the amount  from  the Society’s Bank at the instance of the appellant-accused  and handed it over to him, which the appellant-’ 4 83 accused  dishonestly misappropriated.  The prosecution  case further   was  that  in  connection  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. 1607.50. 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. 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 committed  criminal breach of trust in respect of the sum of Rs. 1607.50and also  falsified  the books of accounts of the  Society.   It appearsthat  in the last week of June 1970,  Sagar  (PW2) the retired Estate  Manager,  complained to Doongaji (PW  1) that certain amountswhich  had been paid by him to  the appellant-accused  were  not  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).  Controller of Accounts in Tata  Electric  Company  was  requested  to  look  into  the accounts of the Society.  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. 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 complaint (F.I.R. Ext. 12) with  the police  on October 17, 1970.  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 completion of the investigation the  appellant-accused was  charge-sheeted  and  then committed to  the,  Court  of Sessions  to stand his trial for offences under s. 471  read with  s. 468 (two counts) 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 committed any of the offences with which he was charged.  He

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disputed that there was any practice to keep in his  custody the cheque-book of the society containing the blank  cheques signed by Doongaji (PWI) and K. N. Singh (PWI2) as suggested by  the  prosecution  or that he bad made use  of  any  such signed blank cheque by issuing the bearer cheque No.  377137 on  April  3,1970  for  Rs.  1607.50  for  the  purpose   of misappropriating  the amount as alleged.  According  to  him the  amount of Rs. 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. but Doongaji  did  not  accept  his suggestion  but insisted that the amount should be  paid  to Sagar without any adjustment.  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 484 instance  of Doongaji but what was banded over to him was  a bill-     cum-receipt of M/s Patni & Co. written in Gujarati containing the rubber  stamp  of M/s. Patni &  Co.,  on  the strength of which the    payment   was  vouched   but   this Gujarati writing was not forthcoming.   Even  though he  had made cash payment of Rs. 1607.50 to Sagar    under instructions of Doongaji, he wanted an entry of this  amount in the Bank column of the Cash-Book of the society and  this he did    by  way  of precaution since according to  him  at that time a large   amount  was due to be paid by  Sagar  to the Society. Accordingly, he  filled  in  the  body  of  the cheque and in the presence of Doongaji on    the top of  the counter-foil of the cheque he made an endorsement      "under verbal  order  of R.D.D." He wrote down the name of  Lad,  a Peon  of  J.  N.  Tata  in  the  body  of  the  cheque.  The Maharashtra    State  Co-operative Bank was  not  permitting the bearer cheque to be  cashed unless the Chairman and  the Secretary of the Society gave      their  signatures on  the reverse of the cheques and since it was difficult to  obtain the signatures of the Secretary Singh, he wrote the name  of Lad as the payee of the cheque while on the counter-foil      he mentioned  the  name  of A.G.R. Patni and  Co.  because  the payment   of   Rs.  1607.50  had  been  made   towards   the satisfaction of the      bill for that amount to Patni & Co. by Sagar. His case further was     that after Lad cashed the cheque, Lad gave the amount to him which     be kept in  the cash-box; in other words, his defence was that from    out of the cash-box he made cash payment of Rs. 1607.50 to Sagar on the insistence of Doongaji and then replenished the cash- box after      encashment  of  the cheque  through  Lad.  He further emphatically     disputed  that  he  had  used   the forged bill and forged voucher/,receipt      in   connection with the payment of Rs. 1607.50 which he made, to Sagar   at the  instance  of  Doongaji.  He also  denied  that  he  had misappropriated the amount or had falsified the cash-book as alleged   and  the  case of the prosecution  being  entirely false he deserved to be  acquitted. At the trial the prosecution led oral as well as documentary evidence in support of its case. The oral evidence consisted 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).  At  Ext.  5 collectively 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

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bearing No. 377137 dated April 3, 1970 in favour of S.A. Lad for  Rs. 1607.50 was produced at Ext. 9 whereas the counter- foil thereof   in  the  name  of  M/s A.  G.  R.  Patni  and containing the endorsement    "under verbal order of R.D.D." was produced at Ext. 7; the cash-  book    containing    the relevant entry for Rs. 1607.50 was produced at    Ext.    10 and  the F.I.R. lodged by Doongaji on October 17,  1970  was produced at Ext. 12. One Nand Kumar Parekh, an  Hand-writing Expert  and  the State Examiner of Documents  in  the  State C.I.D. was     examined who gave his expert opinion that the purported signature      "B.  A.  Sagar" and  the  purported initial "RDD" appearing on the 485 voucher-cum-receipt dated April 3, 1970 (Ext. 5 colly.) were not in the hand of witnesses Sagar and Doongaji respectively but  were  traced forgeries and gave reasons  for  his  said opinion  of  course, this was in addition  to  the  positive evidence  of  these two witnesses who had  stated  that  the concerned  ’signature  and the concerned  initial  were  not their’s.   The learned Session Judge on a  consideration  of the  evidence  on  record came to the  conclusion  that  the prosecution  had  failed  to establish any  of  the  charges against  the appellant-accused beyond reasonable doubt.   He did  not  accept  the prosecution  case  that  signed  blank cheques  8  or  10  at  a time used  to  be  kept  with  the appellant-accused and did not 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  not satisfactory.  He also took the view that  it  was not  possible  to  accept  the  prosecution  case  that  the appellant-accused was in possession of the original bill No. 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.  1607.50 to  Sagar at the instance of Doongaji especially as  on  the counter-foil of the concerned bearer cheque No. 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. 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.  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, conviction could not 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.  He, therefore, gave the benefit of  doubt  to the accused in respect of the four charges levelled  against him and acquitted him.  Against this acquittal order  passed by  learned Addl.  Sessions Judge dated September  5,  1973, the  State  of Maharashtra preferred an appeal to  the  High Court  of Bombay being Criminal Appeal No. 176 of 1974.   In appeal  the  High Court reversed the acquittal  recorded  in favour  of the accused by the learned Addl.  Sessions  Judge and  convicted  him of all the charges  that  were  levelled against  him by its judgment and order dated  September  30, 1974.  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 dated  December  14, 1960 from Patni & Co. as  well  as  the

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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. 1607.50.  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 486 instance of Doongaji or that he had issued the bearer cheque under verbal order of Doongaji as suggested.  It found  that the  Society  had not 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.  505.07p; that Sagar’s evidence that he had not gone  to the office in the month of April, 1970 after his retirerment was acceptable and, therefore, the accused’s 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 convicted him of  all the charges levelled against him.  However,  on  the question of sentence, for certain reasons mentioned by it in its  judgment,  the High Court sentenced him  to  one  day’s imprisonment  and  a fine of Rs. 2000/- and  in  default  to suffer  rigorous  imprisonment for six months.  It  is  this conviction  and sentence imposed upon him by the High  Court that is being challenged by the appellant-accused before  us in this appeal. Mr.  J. P. Mehta, learned counsel for the  appellant-accused has  principally raised two or three contentions in  support of  the  appeal.  In the first place he contended  that  the High Court had erred in interfering with the acquittal  that had  been  recorded by the Sessions Judge in favour  of  the appellant-accused especially when the Sessions Judge,  while appreciating the prosecution evidence, had given substantial reasons  for  not  accepting  the same  and  coming  to  the conclusion  that the defence version was more probable.   He urged  that before reversing the acquittal recorded  by  the Trial Court, the High Court should have given cogent reasons for  rejecting the reasoning of the Trial Court and that  it was also well-settled that the High Court must be  satisfied that the grounds given by the Trial Court for acquittal were palpably wrong or manifestly erroneous, shocking one’s sense of  justice and in this behalf he relied upon two  decisions of this Court, namely, Rajendra Prasad v. State of Bihar(1), and  Vasudeo  Kulkarni v. Surua Kant Bhatt  and  Another(2). Secondly,   he  contended  that  the  entire  case  of   the prosecution was based on the theory that blank cheques about 8  to 10 at a time signed by Doongaji (PW1) and K. N.  Singh (PWI2)  used to be kept in the custody of the accused  which practice facilitated the commission of the alleged offences, but  the learned Trial Judge had rejected this theory as  it found  that the reasons given in support of, this theory  by Doongaji  were  hardly satisfactory and the theory  was,  in fact, contrary to the contents of a letter dated January 20, 1972  (Ext.  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.   Thirdly,  he contended that the user  of  the  two forged  documents,  particularly  the  bill  No.  49   dated December  14,  1969  from Patni & Co.  mainly  depends  upon

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whether the. said document had been handed over by (1)[1977] 2. S.C.C. 205. (2)  [1977] 2 S.C.C. 298. 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. 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 Court’s finding that the said bill as also the  voucher-cum-receipt  were  in  the  possession  of  the accused at the material time was contrary to the evidence on record.   Mr. Mehta, therefore, urged that if on  these  two principal aspects of the prosecution case, the Trial Court’s reasoning could not be assailed by the High Court, the  High Court ought not to have interfered with the acquittal of the appellant-accused  as recorded by the Trial Court.   Lastly, he contended that even if it could be said that the  defence version  had  not been established nor  rendered  reasonably probable  by  the  accused  or even if  the  same  could  be regarded  as  false that did not mean that  the  prosecution case was proved, for it is well-settled that the prosecution must succeed on its own evidence which must be clear, cogent and  convincing.  He, therefore, urged that the  convictions recorded  by  the High Court against  the  appellant-accused should  be quashed and his acquittal by the Trial  Court  be restored.   Mr. M. N. Phadke, learned counsel for the  State of Maharashtra on the other hand contended that the  reasons given by the Trial Court while recording the acquittal  were clearly found to be erroneous by the High Court and the High Court had given proper reasons for reversing such acquittal. According  to  him if the reversal of the acquittal  by  the High  Court  was based not merely on a  reappraisal  of  the evidence but on a consideration of several important aspects of  the  case  overlooked  by  the  Trial  Court  or  if  on appreciation of evidence no two views were possible and  the trial  court’s view was erroneous, the interference  by  the High  Court  with such acquittal would be justified  and  in that  behalf  he relied on two or three  decisions  of  this Court.   We  may point out that the first  ruling  (Rajendra Prasad’s  case) relied upon by Mr. Mehta related to  a  case dealing  with  direct  testimony of  witnesses  whereas  the instant  case could not be regarded as a case  where  direct testimony of witnesses was required to be appreciated and as such  would  be  strictly inapplicable and  as  regards  the second decision (Vasudeo Kulkarni’s case) it may be  pointed out  that  this Court has clearly observed  that  in  appeal against acquittal the High Court may reappreciate for itself the  entire evidence and reach its own conclusion  but  when such  conclusion was contrary to. that of the Trial’  Court, the High Court had a further duty to satisfy itself that the grounds  given  by  the Trial Court  for  acquittal  were  , manifestly  erroneous and according to Mr. Phadke, the  High Court  has  at more than one place indicated bow  the  trial Court’s reasoning has been manifestly erroneous.  The  three decisions on which Mr. Phadke relied are Sham Balu  Chaugule v.  State  of Maharashtra(1) Jai Ram and other v.  State  of U.P.  and  Another(2)  Sarwan Singh &  Others  v.  State  of Punjab(3) in all of which ’the (1)  [1976] 1 S.C.C. 438. (2)  [1976] 2 S.C.C. 191. 9761 4 S.C.C. 369. 488 acquittal recorded by the trial court was interfered with by

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High Court and such interference was confirmed by this Court and  he  urged that in the instant case the High  Court  was justified in reversing the acquittal and such reversal  fell within  the ratio of the said decisions.  He contended  that on the prosecution theory of signed blank cheques  remaining with the accused as well as the possession of the two forged documents   being   with  the   appellant-accused,   certain important  aspects emerging from the evidence on  record  of the  case  had been completely over-looked  by  the  learned trial  Judge and  it was  after  ignoring  such  important aspects  that  he had rejected the prosecution  evidence  on both these points and therefore the High Court was justified in  having  a reappraisal of the entire material.   He  also urged   that   the   High  Court   has   enlisted   numerous circumstances which rendered defence version totally  false, some  of  which  had been wrongly’ explained  away  by  the, learned  trial Judge.  According to him, therefore the  High Court  was  right  in  coming to  the  conclusion  that  the prosecution had established its case against the  appellant- accused beyond reasonable doubt and had, therefore,  rightly interfered  with the order of acquittal passed by the  trial Court.  We find considerable force in the contentions  urged by Mr. Phadke. At the outset two or three undisputed facts which emerge  on record  may be stated.  It was not disputed before  us  that from  May 1969 onwards the appellant-accused was working  as an  Honorary Accountant of the Society upto July 1, 1970  on which  date his services as such Accountant  were  dispensed with and that as such.  Accountant of the society his duties were  to  write and maintain the books of  accounts  of  the Society, to receive from the Estate Manager the  collections made  by him from each member of the Society, to credit  the full  amount  of  collection  in the  bank  account  of  the society,, to pay municipal taxes and make other payments  of big amounts by cheques only after varifying the minute  book and   satisfying  himself’  that  such  payments  had   been sanctioned  by the Managing Committee and to  reimburse  the sundry  expenses, which the Estate Manager would  incur,  by cheques  only.  it was also not disputed before us  that  in December  1969,  M/s.  A. G. R. Patni &  Co.  had  submitted their  bill No. 49 dated December 14, 1969 for Rs.  7.50  in respect  of  some small job to Sagar,  the  Estate  Manager, (PW2).  It was also not disputed that the said bill when  it was  submitted  by Abdul Gani Patni (PW3) and  when  it  was received  by Sagar (PW2) the amount thereof both in  figures and words was Rs. 7.50 and it was some time later that  this bill  No.  49 got interpolated and become  inflated  to  Rs. 1607.50  by addition of the figure "160" before  the  figure "7"  but  such  interpolation only appeared  in  the  amount expressed  in  figures while the amount expressed  in  words continued to be "rupees, seven and fifty paise only.". it is true  that the prosecution has not been able to show as to how  and  who made such interpolation in this  bill  but  it cannot  be disputed that anyone who would come  across  such bill  (being Part of Ex. 5 colly) would  immediately  notice the  interpolation and discrepancy therein, so that  whoever uses the bill at any time subsequent to its tampering  would have knowledge and reason to believe that the same has  been forged.  Similar is the- 489 position with regard to the other document, which is also  a part  of  Ext.  5 collectively,  namely,  the.  voucher-cum- receipt  dated  April  3,  1970.   This  voucher-cum-receipt purports  to bear the signature of Sagar (PW2) as  also  the initials "RDD" of Doongaji (PWI), both of which according to

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the Hand-writing Expert’s opinion are traced, forgeries  and what  is  more  there  is positive  evidence  of  these  two witnesses   that  the  purported  signature  and   purported initials  are  not theirs and there is no reason  why  their evidence  in this respect should not be accepted,  but  that evidence  apart,  whoever sees this document and  reads  its contents will immediately realise and at any rate will  have reason  to  believe  that the same  is  also  distorted  and forged,  for  the document is incomplete and in  the  amount mentioned therein, there is a clear discrepancy.  The amount in  figures  is stated as Rs. 1,607.50 while  in  words  the amount is mentioned as Rupees one. thousand six hundred  and seventy  only.  The incompleteness lies in the last part  of the  document where it runs thus, "I also certify  that  the work  had been carried out in December but due to my sick  I was unable" and at the foot the purported signature of Sagar appears.   It  is  thus clear and it  was,  therefore,-  not disputed  before  us  by.   Mr.  Mehta  appearing  for   the appellant-accused  that both these documents on the face  of them  would  bring home to the person who uses  them  either knowledge  or reason to believe that the same were  forged.. This  being the nature of the two documents in question  it, the appellant-accused had used them in the sense that he had made them thebasis  for  issuing  the  bearer  cheque  No. 377137 dated April 3,1970 he could be said to have  used both these forged documentswith  the requisite  knowledge or  reason  to believe them to be forged at a time  when  he used  the same.  The main question, therefore,  that  arises for  determination  is  whether the  appellant  accused  had issued the bearer cheque dated April 3, 1970 on the strength of  or on the basis of these forged documents and  bad  mis- appropriated  the proceeds of that cheque as alleged by  the prosecution  or whether the bearer cheque was issued by  him in the circumstances suggested by him in his statement under s. 342 of the Criminal, Procedure Code and what is more this question  will  have to be determined in the  light  of  the further undisputed fact-a fact which has been deposed to  by A.  G.  Patni  (PW2) that he or his  firm  had  received  no payment  whatsoever neither Rs. 7.50/- nor Rs. 1607.50,  and that the bill has remained unpaid till now.  In other  words the.  question would be whether the proceeds of  the  bearer cheque after encashment thereof were misappropriated by  the appellant-accused  or  were used for replenishing  the  cash from  out of which the amount of Rs. 1607.50  was  allegedly paid  by the appellant-accused to Sagar at, the instance  of Doongaji as suggested by him.  It was in this situation that the  two  aspects assumed great significance  in  the  case, namely,  whether it was the practice to keep about 8  to  10 blank  cheques  signed by Doongaji and K. N.  Singh  in  the custody  of  the accused or not and whether  the  appellant- accused   was  in  ’possession  of  the  forged   documents, particularly  bill from Patni & Co. at about the  time  when the  bearer cheque was issued by him, on both of  which  the conclusions  reached  by the High Court  were  contrary  to, those reached by the trial Court. 490 Dealing first with the prosecution theory that blank cheques signed  by Doongaji and Singh used to remain in the  custody of  the  accused  there  is  evidence  of  two   prosecution witnesses  on the point, namely, Doongaji (PW1),  and  Singh (PW12); Doongaji (PW1) has stated  that  the  bank   account could be operated jointly by himself asthe  Chairman    and Singh as the Secretary, that Singh used to resideat Goregaon and every time whenever the cheque was required  to be   drawn  it  was  not  possible for  Singh  to  give  his

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signature onthe  same  and  further that  Singh  used  to insist that before he wouldput  his   signature  on   the cheque of the society, the Chairman shouldput  his signature  on  the  same  and, therefore,  with  a  view  to facilitatethe  convenience   of  Singh,  it   was   the practice of the society that at atime      about  8 to  10 blank cheques used to be signed by him first andthey  were sent to Singh through witness Sagar the Estate Manager,  and Singh  used  to put his signatures thereon, and  the  cheque book  containing  such signed blank cheques always  used  to remain  in the custody of the accused and on every  occasion the  particulars of the cheque both in words as well  as  in figures  used  to  be  written  by  the   appellant-accused. Doongaji also stated that the books of account, the vouchers and  cheque  book  used to be kept in  the  custody  of  the accused  in the office of Sir Doongaji Tata Trust.   To  the same effect was the evidence of Singh (PWI2), who  confirmed that he used to put his signatures on blank cheques whenever they were signed by the Chairman ’of the Society and be used to receive such blank cheques duly signed by the Chairman of the  Society first through Sagar and later  through  Sagar’s successor  Figrado and that at a time he used to sign  blank cheques between 5 to 10 in number and sometimes they used to be  15 also.  This evidence was sought to be  demolished  by the  defence by relying upon two or three factors.   In  the first place it was pointed out that both Doongaji as well as the  accused used to sit in the office of Sir Doongaji  Tata Trust for the purpose of doing the work of the Society, that the accused used to sit at a distance of only 14 paces  away from Doongaji and that even if Doongaji was required to  sit in Oriental Building-another building for doing work in  the Share  Department  of Tata Iron and Steel Company  that  was only  for  part  of the day and,  therefore,  there  was  no necessity  for Doongaji to sign blank cheques.  In our  view this  fact  cannot run counter to the  practice  of  keeping blank cheque signed by Doongaji and Singh with the  accused, for, it was not because of the distance between the place of work  of  Doongaji  and  that of the  accused  that  such  a practice  grew.   The  practice  grew  because  Singh,   the Secretary, used to stay at Goregaon and it was difficult  to Obtain  his signatures on every occasion whenever  a  cheque was required to be issued, and further Doongaji used to sign the cheque first because of Singh’s instance in that  behalf and that is how the practice of keeping blank cheques signed by  boongaji and Singh with the accused-8 to 10 at  a  time, grew.   Secondly, Doongaji was confronted with 5 or 6  blank cheques that bore only the signature of Singh-a circumstance which ran counter to his story that blank cheques used to be signed  by  him  first  and thereafter  by  Singh  but  both boongaji and Singh have clearly explained this circumstance’ by stating that after the appellant-accus- 491 ed’s  service  were dispensed with, from and after  July  1, 1970  Doongaji himself had personally started  handling  the cash,  and the new Estate Manager Figrado assured  Singh  in that  behalf  and,  therefore,  Singh  started  giving   his signature on blank cheques even though the Chairman had  not given  his  signature first on the- same.  In view  of  this explanation which seems quite reasonable we do not find this circumstance  as  running counter to the  prosecution  story that initially the practice had grown to keep blank  cheques signed by Doongaji first and then by Singh with the accused. Lastly, reliance was placed upon the contents of the  letter (Ext.  59-D) dated January 20, 1972 written by Singh to  the Chairman  of  the Society in which Singh had stated  thus  :

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"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 contained in Singh’s letter (Ext. 59D) ran counter to  the  prosecution theory ’that the  cheque-book  used  to remain in his custody.  It may, however, be stated that  the letter  Ext.  59-D  addressed by Singh to  the  Chairman  on January  20,  1972  was by way of reply  to  the  Chairman’s letter’  dated December 30, 1971 which he had received  from the  Chairman  and  as such the contents of  the  reply  and particularly the sentence on which reliance has been  placed will  have  to  be considered in  its  proper  context.   It appears  that  the  Chairman along  with  his  letter  dated December 30, 1971 had forwarded a copy of the proceedings of the  Society’s General Body’s Meeting held on  September  3, 1971,  in which the conduct of the Secretary in  not  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. 59-D was addressed by Singh to the Chairman, in  which  he pointed out that  notwithstanding  his  having ceased  to have interest in the Society’s building,  he  was retained as the Secretary and that he was told that he could continue in that post merely for signing cheques and attend- ing to two ejectment suits on behalf of the Society in Small Causes Court.  It was in the context of such criticism  that was  made against him that Singh explained his  position  in this reply and while explaining his position he stated  that the cheque-books and all other papers and documents were  in the custody of the Chairman of the Society; in other  words, as between the Chairman of the one hand and the Secretary on the other, Singh suggested that all documents including  the cheque-books  etc.  used  to remain in the  custody  of  the Chairman.   The relevant statement contained in the  letter, therefore,  cannot be used for the purpose of  drawing  the. inference  that as between the Chairman on the one hand  and the  appellant-accused as Honorary Accountant on the  other, the  cheque-books and the documents used to remain with  the Chairman.   In fact, in this reply Singh  has  categorically referred  to  and asserted the practice that  had  grown  of signing blank cheques-particularly the altered practice that grew after Doongaji had started handling the cash by stating thus---"’as it was not possible for him and the Chairman  to meet  often he sent for a number of cheques to be signed  by him at a time so that when money was required from the  bank he  would  countersign and get the moneys  withdrawn".   The trial  Court  has wrongly regarded this  letter  as  running counter to the prosecution theory.  In our view far from 492 running  counter to the prosecution theory, the contents  (A this  letter lend support to the prosecution case fully  and this-  effect of the letter Ext. 59-D which is an  important aspect  has  been completely missed and  overlooked  by  the trial  Court.   The learned Addl.  Sessions  Judge  has,  in fact,  made  a  half-hearted finding on  this  part  of  the prosecution  case by observing as follows in para 36 of  the judgment               "The probabilities would rather show that  the               chequebook containing the blank cheques signed               by Mr. Doongaji as well as by Mr. Singh  would               continue  to remain with Mr. Doongaji  and  as               and  when  an  occasion arose  for  issuing  a               cheque  the accused would be summoned  and  he               would  be  asked to fill in the  body  of  the               cheque and then the cheque would be issued." The  observation suggests that the learned trial  Judge  has

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accepted  the  prosecution  case  partly,  namely  that   on probabilities the cheque-book used to contain blank  cheques signed by Doongaji as well as by Mr. Singh but according  to him  such cheque-book containing signed blank  cheque  would continue to remain with Doongaji.  We fail to appreciate  as to  why,  if  at all, the cheque-book  was  to  remain  with Doongaji  and the cheques would be issued by the accused  in the  manner suggested by him, blank cheques would be  signed by  Doongaji at all.  The evidence of the two  witnesses  as also the contents of the letter Ext. 59-D clearly show  that the practice as put forward by the prosecution did obtain in the society.  Apart from the aforesaid oral evidence of  the two witnesses and the support it receives from the  contents of the letter Ext. 59-D, there is yet one circumstance which supports the prosecution story on the question of  aforesaid practice  and  that circumstance arises  from  the  defence, version itself.  According to the appellant-accused in order to  keep a record of the fact that it was on the  insistence of Doongaji that he paid cash amount of Rs. 1607.50 to Sagar and issued a bearer cheque for replenishment of the cash-box he had put on endorsement on the counter-foil (Ex. 7) of the bearer cheque to the effect "under the verbal orders of  Mr. RDD".  ’Now, ordinarily if there was no practice of  keeping blank cheques signed by Doongaji and Singh with the  accused (signature  of the two appearing on the blank cheques  would amount  to  written order to the appellant-accused)  and  if cheques including the cheque in question were written out by the  accused  first and then they were  signed  by  Doongaji there  would  be  no necessity of  putting  the  endorsement "under  verbal orders of Mr. RDD" on the  counter-foil,  the very  fact  that  such  an  endorsement  was  made  by   the appellant accused on the counter-foil of the cheque  clearly suggests  that the practice of keeping blank cheques  signed by Doongaji and Singh with him did obtain.  Having regard to the  aforesaid discussion, in our view, the trial Court  was clearly  wrong  in  disbelieving the  prosecution  story  in regard  to the practice of keeping signed blank  cheques  in the custody of the appellant accused and the High Court  was right  in  accepting  the same.  It  is  obvious  that  this practice  which  obtained  in Society  clearly  afforded  an opportunity to the appellant-accused to commit the  offences alleged against him. 493 The  next  question  that is required to  be  considered  is whether  after the bill No. 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.   On this aspect of the matter evidence of Sagar  (PW2) is  very  material.   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. 7.50 (Ext. 5 collectively) 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 was  shown  the  voucher-cum-- receipt  dated  April  3,  1970 and  he  asserted  that  the signature  "B.   A.  Sagar" appearing thereon  was  not  his signature  at  all.  His further evidence has been  that  he never  presented this voucher-cum-receipt to  the  appellant accused  nor did he receive any payment of Rs. 1607.50  from the  appellant-accused  in April, 1970 as alleged  ’by  him.

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The defence has attacked the evidence of this witness on the point of his handing over the bill to the  appellant-accused on two or three grounds.  In the first place, it was pointed out  that since the bill was for a small amount of Rs.  7.50 normally  it  was  the duty of the  witness  as  the  Estate Manager  to disburse the same and, therefore, there  was  no occasion  for  him to hand over the same to  the  appellant- accused.   Secondly, it was contended that the  witness  has given two reasons for not making payment of the bill to M/s. Patni  &  Co. viz,. (1) that it was the last  month  of  his service  and (2) that be did not have sufficient funds  with him  and  according to the defence both the reasons  do  not bear  scrutiny  and if the reasons for  not  disbursing  the ,bill  are false his evidence, that he handed over the  bill to the appellant,accused cannot and should not be  accepted. It  has been elicited in his evidence that he used  to  keep with him cash of the, Society out of the collections made by him  for  days  and  months and in  any  case  it  would  be difficult  to believe that be did not have a paltry  sum  of Rs.  7.50/- with him and it has been further  elicited  that though  it  was the last month of his service  he  had  made collection  from  the occupants of the flats.  It  was  thus urged  that both the reasons put forward by the witness  for not  disbursing the bill being false his evidence should  be it ejected.  It is true that the bill was for a small amount that  it was his normal duty to disburse the same  and  that the  reasons given by him for not doing so may be wrong  but these aspects would not be material because whatever be  the reasons and whatever be his negligence the fact remains that the  witness  had  not  disbursed  the  bill-which  fact  is independently proved by the unchallenged evidence of witness Abdul Gani Patni (PW3) and the question would be what  would Sagar  do  with regard to such undisbursed  bill  before  he retired from service ? He would naturally hand over the same to  the  appe llant-accused before he went out  of  service. Sagar’s      evidence,  therefore,  lends   support   to the prosecution  case  that  the appellant accused  had  in  his possession  bill No. 49 dated December 14, 1969.  There  are two other pieces of evidence on record on 494 which the prosecution relied to support Sagar’s evidence and those  are  the testimony of witnesses  Nariman  Deboo,  the internal Auditor (PW6) and Mr. Karsi Gherda (PW11).  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  contacted  the appellant-accused,  who  was the Honorary Secretary  of  the Society  and  had  collected  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. 5 collectively.  This evidence shows  that the  bill and the voucher at Ext. 5 collectively were  among the  several  documents  which had been  collected  by  this witness   from  the  appellant-accused  and  as  such the appellant-accused  could  be  said to be  in  possession  of documents  at Ext. 5 collectively.  It was pointed out  that this evidence of the witness could not be accepted  inasmuch as the witness had passed a receipt produced at Ext. 43-D in respect of the several documents which he had collected from the  appellant-accused and this receipt Ext. 43-D  does  not refer  top the item of two files of vouchers about which  he

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has  given  evidence  in examination-in-Chief.   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 counterfoils  of the receipt-book as also the  statement  of collections  submitted  to him by Sagar,  Estate.   Manager, from  time  to time.  As per the desire I had  executed  the receipt  in favour of the accused".  This explanation  given by  the witness cannot be regarded as satisfactory  inasmuch as the receipt Ext. 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.  43-D  as per the  desire  of  the  appellant- accused.   The evidence of this witness,  therefore,  cannot avail the prosecution for establishing clinchingly that  the bill  and  the voucher Ext. 5 collectively had  been  handed over to him by the accused.  However, in our view, the other piece of evidence on which the prosecution has    relied will  clinchingly establish that the  appellant-accused  was fully conscious and aware of the forged bill dated  December 14, 1969 and had on the strength of that bill as well as the forged voucher issued the bearer cheque in question andthat is the evidence of Karsi Gherda (PW1l).  Karsi Gherda afterhe had been apprised by Nariman Deboo about the existence ofthese two  documents (Ext. 5 collectively) which  were  fictitious and  fraudulent in character.’ had a meeting of the  persons concerned  and  had confronted  the  appellant-accused  with these two documents. particularly, the bill part of Ext.  P5 and from what the accused stated at that time to the witness it  would  be  clear that the  appellant-accused  was  fully conscious and aware of the clear inter- 4 9 5 polation  in  the  figure of Rs. 1607.50  in  the  bill  and inspite of such awareness the amount was paid by him  though allegedly under the authority of Doongaji.  His evidence  in this   behalf  is  very  material  which  runs  thus  :   "I entertained  a  doubt about the genuiness of  the  bill.  1, therefore  sent  for the accused.  When I showed  this  bill part  of  Ext. 5 collectively and asked him as  to  what  he wanted to say with regard to the clear interpolation in  the figure of Rs. 1607.50 the accused agreed with me and told me that  even  if it was clear case of interpolation,  he  paid off  the  amo unt under the authority of Doongaji,  who  was Chairman of the Managing Committee of the Society".  Nothing was  elicited  in /his cross-"amination so as  to  cast  any doubt on this part of the evidence given by him in  examina- tion-in-Chief.  We might, however, state that for the  first time  in  the appeal when it was being heard  by  the,  High Court  an application was made seeking permission to  recall the  witness for the purpose of contradicting him  with  his police statement where, according to the  appellant-accused, the witness had not given his version as to what  transpired between  him  and  the accused during the  meeting  in  such details but that application was rejected by the High  Court and,  in  our  view, rightly.   The  aforesaid  evidence  of witness  Karsi  Gherda, therefore, clearly  brings  out  the aspect  that on his own admission the appellant-accused  had made  the  payment of the bill on the strength of  the  bill with  full consciousness and awareness that the same was  an interpolated  and  forged document.  The  clear  implication arising  from the aforesaid part of Karsi Gherda’s  evidence

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has  been  overlooked by the learned trial  Court.   In  our view, the evidence of Sagar (PW2) read in the context of the admitted fact that the bill bad remained unpaid all  through out  as  well  as the aforesaid  evidence  of  Karsi  Gherda clearly establishes the fact that the appellant-accused  had not  only the possession of the forged bill, being  part  of Ext.  5 collectively, but had purported to make  payment  by issuing  the bearer cheque in question on the basis of  such forged bill. Having  regard to the above discussion it seems to us  clear that  on the two important aspects of the prosecution  case, namely,  (a) theory of blank cheques signed by Doonkaji  and Singh remaining in the custody of appellant-accused and  (b) possession of the forged bill with the accused on the  basis of   which  the  bearer  cheque  was  issued  by  him,   the conclusions of the High Court were right and because certain important  aspects  of the case had been overlooked  by  the learned trial Judge the High Court was justified in having a reappraisal   of  the  evidence  and  coming  to   its   own conclusions  on these points contrary to those of the  trial Court. The  next  question  pertains  to the  user  of  the  forged voucher-cum-receipt  dated April 3, 1970 on the part of  the appellant accused with the requisite knowledge of reasonable belief  that the same wag, a forged one.  As stated  earlier Doongaji  (PW  1)  and Sagar (PW 2)  have  stated  that  the purported  initial and signature appearing on  the  document were not theirs and there is no reason why their evidence in that  behalf  should not be accepted.  But apart  from  this aspect, as observed earlier, on the face of it the  document is  incomplete and contains grave discrepancy in the  matter of the amount for which the receipt 496 came into existence and it was not disputed before us by Mr. Mehta.  that such a document on the face of it  would  cause any  one who read it to entertain reasonable belief that  it was  a forged one.  As regards, user, it is clear  that  the issuance of the bearer cheque by way of satisfying the  bill of Patni & Co. would require to be vouched by some sort of a receipt  from  Patni & Co. That  the  appellant-accused  was fully’ conscious of this aspect is clear. from the fact that in his statement under s. 342 Cr.P.C., the accused has  come out with a story that at about the time when he made payment in  cash  to Sagar through Doongaji and  issued  the  bearer cheque  and  got it encashed for replenishing of  the  cash, some  Gujarati voucher byway of a receipt from Patni  &  Co, had  been  produced  to him but somehow or  the  other  that Gujarati voucher was not forth coming.  In other words, that the disbursement of the bill would require to be vouched  by a voucher-cum-receipt was very well known to the  appellant- accused.  The Gujarati writing, it seems to us, is not forth coming because there was no such Gujarati writing at all  in existence  and the appellant accused purported to  make  the disbursement of the forged bill on the basis of getting  the same  vouched  by means of the  forged  voucher-cum-receipt, (being the other part of Ext. 5 collectively.) In our  view, therefore, on the aforesaid material which we have discussed above  it appears to us clear that the prosecution could  be said  to have established its charge under S. 471 read  with s.  467  I.P.C. under both the counts  against  the  accused beyond any reasonable doubt and the High Court was justified in  reversing the acquittal recorded by the trial  Court  in his favour on these counts. The  next question that arises for consideration is  whether the  appellant-accused had misappropriated the  proceeds  of

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the bearer cheque after the same were handed over to him  by the  Peon  Shiv  Ram Lad or be  utilised  the  proceeds  for replenishing  the cash-box as suggested by him.  The  answer to  the  question must depend upon whether the  evidence  of Sagar on behalf of the prosecution deserves to, be  accepted or  the defence version could be said to have been  rendered reasonably probable-by the appellant-accused.  The  evidence of  Peon  Lad is categorical that after  encashment  of  the cheque he handed over the proceeds to the  appellant-accused and  this  was not disputed by the  appellant-accused.   His version  has  been that before the issuance  of  the  bearer cheque (Ex. 9) and encashment thereof he made payment of Rs. 1607.50 in cash from the cash-box to Sagar through Doongaji, in his presence and upon his insistence, notwithstanding his (accused’s)  suggestion that no such payment should be  made as  a  large  amount was due from Sagar to  the  Society  or atleast the payment should be adjusted against such dues  of Sagar  to the Society, and, thereafter, he issued a,  bearer cheque  for  Rs. 1607.50 in favour of Peon, S.  A.  Lad  and after  Lad handed over the proceeds of the cheque to him  he replenished the cash by putting the amount in the  cash-box. His version further has been that in order to have a  proper record  that  the  payment was made  at  the  insistence  of Doongaji, he, made an endorsement on the counterfoil of. the cheque  (Ex. 7) to the, effect "under verbal orders  of  Mr. RDD".  On the other hand, Sagar’s evidence has been that  he had  nothing  whatever to do  with  the  voucher-cum-receipt (Ext. 5 collec- 4 9 7 tively),  that the signature purporting to be his  signature appearing  thereon was not his and that he had not  received the  amount indicated in that voucher-cum-receipt  from  the appellant-accused  at any time.  Doongaji also  denied  this entire  version  and particularly denied that  he  had  ever issued oral instructions or order to the accused to make the payment  to,  Sagar  or that the payment  was  made  in  his presence  or that the accused made the endorsement  on  the. counter-foil of the cheque in his presence.  Nariman Deboo’s (PW  6)  evidence also shows that during  the  scrutiny  and inquiry undertaken by him when the counter foil (Ex. 7)  was shown  to  Doongaji the latter had denied having  given  any verbal order as suggested or endorsed by the accused on  the counter  foil  of the cheque.  So it is not as  if  Doongaji came  out with such denial for the first time at the  trial. Now, there are a number of circumstances which lend  support to  Sagar’s  evidence  and completely  falsify  the  defence version. 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 not 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  not cash.   Secondly,  there has been  no  cross-examination  of Sagar on this part of his evidence that he was not paid  the amount indicated in this forked voucher by the accused on or about  April  3,  1970 or at any  time.   Apart  from  these circumstances,  the  prosecution has brought on  record  the fact which emerges from the cash-book that round about April 3,  1970 and for quite a few months prior to that date  the, only cash on hand that was lying in balance with the society was only Rs. 505.55 and as such the appellant-accused  could not have paid to Sagar from the cash of the Society a sum of Rs. 1607.50. The learned trial Judge had explained away this circumstance  by  observing  that  apart  from  working   as

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ordinary Honorary Accountant of the Society, the  appellant- accused  was  also doing the work of Koyna Relief  Fund  and Rural Welfare Board and he could have and must have made the cash  payment  of Rs. 1607.50 from out of the cash  of  such funds, without any material having been brought on record by the  accused  as to what was the State of cash  on  band  in regard  to  these  funds  also.   If  once  the  prosecution established  clearly  that cash on hand of the  Society  was only  505.55  on April 3, 1970 and for quite  a  few  months prior  to  that  date and the accused could  not  have  made payment of Rs. 1607.50 to Sagar out of the Society’s cash it was  up  to  the appellant-accused  to  render  probable  an alternative  adequate source from which he could  have  made the payment but beyond suggesting that the appellant-accused was  also  doing  the work of Koyna Relief  Fund  and  Rural Welfare  Board  no other material was brought on  record  to show  what was the state of cash on hand from  these  Funds. The  High  Court has rightly observed that the  trial  Court could not indulge in guess work on this aspect.  This  state of evidence completely falsified the accused version that he bad  paid Rs. 1607.50 in cash to Sagar on or about April  3, 1970  and as such the further question of  replenishing  the cash with the proceeds of the bearer cheque would not arise. Further  if the accused version were true that he  had  paid cash of Rs. 1607-50 to Sagar and had replenished the same by crediting the proceeds of the bearer cheque to the cash- 49 8 book of the society, proper entries would have been made  by him  in the cash-book, namely, there would be a debit  entry in the cash-column of the cash-book and credit entry in bank column  of the cash-book but such entries are  conspicuously absent.   We  may  point out that in  paragraph  77  of  its judgment,   the   High   Court   has   enumerated    several circumstances  including the aforesaid  circumstances  which clearly  bring  out the falsity of the defence  version  and some  of  which substantially  corroborate  the  prosecution case.   The  learned  trial Judge has  improperly  tried  to explain away these circumstances in favour of the appellant- accused.  There is no doubt’in our mind that the charge  (if criminal  breach of trust under s. 408 I.P.C. in respect  of the   amount   of  Rs.  1607.50  as-also   the   charge   of falsification  of  accounts under s. 477A I.P.C.  have  been established  by the prosecution against the  accused  beyond reasonable doubt. In  the  result  we confirm the convictions as  wel  as  the sentence  imposed  upon the appellant-accused  by  the  High Court and dismiss the appeal. P.H.P. Appeal dismissed. 49 9