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PETITIONER: MOHAMMAD ASLAM

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT22/09/1976

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. BHAGWATI, P.N. FAZALALI, SYED MURTAZA

CITATION:  1976 AIR 2529            1977 SCR  (1) 689  1976 SCC  (4) 283

ACT:              Practice  and  Procedure--Re-appraisal  of  evidence  by         Supreme Court inspite of concurrent findings of fact, proper         when miscarriage of justice has occurred.

HEADNOTE:             The  appellant, a cashier in a rural  block  development         office of Shahjahanpur district, was convicted for misappro-         priating  public money.  Both the courts concurrently  found         that  he had pocketed the sum which he claimed to have  paid         the Panchayat-Secretary as salary.             The appellant contended that the charge against him  was         falsified  by  the  voucher and regular entry  of  the  cash         register regarding the above payment, which had been  ticked         and  initialled by the Block Development Officer,  and  pro-         duced in evidence.         Allowing the appeal, the Court             HELD: (1) The proposition of litigative finality at  the         High  Court level on findings of fact has been  affirmed  by         this Court, but the exceptions which prove the rule are also         well-established.   A conviction of guilt has been  rendered         by both the Courts, but certain grave factors  conducive  to         miscarriage  of  justice, induce us to  make  an  exception.         The  accused is entitled to the benefit of reasonable  doubt         owing  to  the contemporaneous entry in  the  cash  register         coupled  with the signature of the B.D.O. the same  day,  as         against ipsi dixit later. [689 G, 691 H, 692 G---H]             (2)  Our observations must serve as catalysts  to  crash         strategies  on white collar crimes.  Gross negligence,  even         absent mens rea, in handling public funds by those in office         must hold penal consequences as it inflicts double injury on         the poor masses. [694 G--H]

JUDGMENT:             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 310         of 1971.             (Appeal  by Special Leave from the Judgment  and   Order         dated  23-4-1971  of the Allahabad High  Court  in  Criminal         Appeal No. 168/ 69 with Criminal Appln. No. 986/69).

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       Frank Anthony and U.P. Singh, for the Appellant.         O.P. Rana, for the Respondent.         The Judgment of the Court was delivered by             KRISHNA  IYER,  J.  Some exceptions disprove  the  rule.         Cases are legion where the proverbial proposition of litiga-         tive finality  at  the High Court level on findings of  fact         has  been affirmed by this  Court, but the exceptions  which         prove the. rule are also weB-established.             We must at the outset state that this case does not  fit         into  the conventional legal mould but,  nevertheless,  pos-         sesses  such strange features that our ’ultimate’ power  may         legitimately come into play.         690             A petty store-keeper-cum-cashier in a rural block devel-         opment office (in the district of Shahjehanpur) was charged.         with  misappropriation of several sums adding up to a little         over  Rs. 5,000/-.  The charges having been denied  and  the         real  culprit  having been pointed out as the  boss  of  the         block  development office, the Sessions Court received  evi-         dence  on  both sides, found the testimony  of   the   Block         Development Officer (BDO, acronymically)  ’completely  false         and  unbelievable’ in regard to many of the items of  embez-         zlement and made critical observations about his culpability         in  respect  of  many  of the malversations.   We  may  have         something  to say. about the not  unusual phenomenon of  the         ’small  fry  getting  caught, and  the  big  shark  breaking         through the net’ in economic offences where public money  is         handled  by public servants.  For the nonce we  may  content         ourselves with the statement that the little official in his         twenties--which   the accused was--was acquitted of all  but         one charge and the misappropriation of Rs. 5,194.82 dwindled         into a solitary fugitive  item  of Rs. 50/- for which he was         punished with imprisonment for one year a fine of Rs. 300/-.         The  conviction was confirmed but the  sentence was  reduced         by the High Court.             The  aggrieved appellant urges before us that the  soli-         tary surviving item of misappropriation held proved  concur-         rently, had, in fact, been vitiated in the process by funda-         mental  flaws.  We will proceed briefly to narrate the  epi-         sode  and examine the tenability of the  extraordinary  fea-         tures leading to the exculpatory sequel.             The agrestic immensity of Indian backwardness is  sought         to   be  banished  by   developmental   activities   through         block-level   infrastructures.  Jaitipur Block is  one  such         and  it  has  a nucleus of small officials  and  some  rural         development  assistants,  the hegemony being vested  in  the         BDO.   The  dramaris  personae here  are  the  accused,  the         stock-clerk-cure-cashier,  the BDO (PW 8) and the  Panchayat         Secretary  (PW 7) whose magnificent salary is Rs.  50/-  per         mensem.    The  prosecution narrative runs long but  can  be         short  if we abandon the plurality of charges and limit  the         facts to. the single item of Rs. 50/-. In skeletal  brevity,         there  was  a,Block Office in Jaitipur where a  small  staff         worked  on low salaries to stimulate rural development.  The         accused was cashier and used to be entrusted in such capaci-         ty  with  sums,  large and small. The  case,  as  originally         projected, was that Rs. 5,194.82 was committed to his custo-         dy and the whole sum was siphoned off into his own pocket by         various acts of criminal breach of trust. Admittedly it  was         the  duty of the accused cashier to maintain the  cash  book         and  deal with the monies.  Equally clear is the  fact  that         the  head of the office, the BDO, was duty-bound  ’to  tally         and check the dally entries of the cash book with the  rele-         vant  vouchers, to affix his signature...   after  ’checking         the total at the end of the day’.

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           The  block  office has, on its rolls,  Panchayat  Secre-         taries  drawing small salaries.   One of them is PW 7, on  a         monthly  pay  of Rs. 50/-. Another  unfortunate  feature  of         these.  offices, as disclosed in the evidence, is that  even         these petty emoluments are paid irregularly pro-         691         ducing  both  discontent and inclination  for  manipulation.         That  public offices should be so run is not too  complimen-         tary.   Anyway, PW 7 received his pay for December  1964  on         February 22, 1965 and his pay for the later month of January         1965  he drew a few days earlier on February 15, 1965  (vide         Exhibits  Ka 26  and  Ka 29).  These oddities  in  disburse-         ments led to the plausible plea by Asiam, the accused,  that         P.W.  7 not having received his pittance for the  month   of         December 1964 even after January had come and gone,  pleaded         his dire need for money and received Rs. 50/- as pay for the         month of January 1965 and signed a separated voucher bearing         that date, viz., February I, 1965.  It is conceivable that a         little man with a little pay packet,  which  is tantalizing-         ly postponed,  pressurizes the cashier to pay him the  small         sum signing a voucher and it need not surprise    us if  the         cashier gives in to compassion and makes the payment.   This         is  precisely  the case of the accused.  To  shore  up  this         plea,  he  points out a regular entry in the  cash  register         against the date  February 1, 1965 of a payment of Rs.  50/-         as  salary for the month of  January 1965 to P.W. 7.   Rein-         forcement  is received from the further fact that this  spe-         cific  entry of payment--the falsification of which  is  the         foundation.  for the charge of misappropriation of Rs.  50/-         is ticked and ’initialled by the BDO P.W. 8. We have earlier         referred to the practice and the obligation of this  officer         to  tally and check the daily entries in the cash book  with         the relevant vouchers and then to affix  the signature after         checking  the total at the end of, day. Moreover he had  the         special  responsibility, as the most responsible officer  on         the  staff  on his own showing, ’to keep  the  cash  balance         found  at the end of every day in the cash-chest  register’.         He  does not do daily physical verification of the cash  but         does it on a monthly basis and he keeps the key of the same,         although another key is left with the cashier.             The accused’s contention that he paid the salary of  Rs.         50/-   to P.W. 7 on February 1, 1965 supported though it  is         by an entry in the Books duly initialled by the BDO presuma-         bly  after verification with the corresponding  voucher  has         been  rejected  by the Courts  without advertence  to  these         spinal circumstances by the superficial plea that P.W. 7  is         seen  to  have  been paid the salary for  December  1964  on         February  22,  1965 with a regular entry   and   a   stamped         voucher.  P.W. 7, when examined, denied the earlier  payment         on February 1, with a touch of dubious candour and owned  up         the  payment  for December supported by the stamped  voucher         on  February 22, 1965. A streak of mystique generates  doubt         in P.W. 7’s testimony because in cross-examination he  says:         ’1  do not remember as such that along with other  officials         the cashier would have given me the salary for the month  of         January 1965 for two times by mistake’.  In the next  breath         he corrects-himself to say that he had not been paid  twice.         On the strength of these materials a conviction of guilt has         been  rendered by both the Courts and. be  the  appreciation         right or wrong, we, as the final court should have held back         ordinarily  from temptation for reappraisal, vehement  argu-         ment  notwithstanding.  But  certain  grave factors,  condu-         cive  to  miscarriage  of justice have  bulked  forward   to         induce  us  to make an exception, which we  will   presently         expatiate

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       692             There  were  nine items of  misappropriation  originally         imputed to the accused.  All, but one, remained unproven and         the  guilt is now fixed on one of the inconsiderable  items.         Not  that the littlest sum of public money can be  taken  on         privately with impunity but that the perspective is coloured         somewhat by the substantial  failure of  the prosecution  to         make  out  its  case regarding all the  major  items.   More         disquieting  is  the fact that the Single  surviving  charge         stands or falls on the veracity or unveracity of a  solitary         witness  appreciated  in   the light of  the  conspectus  of         circumstances.   What  are those circumstances  ?  The  BDO,         charged  as  he is with serious  responsibilities  including         guardant functions over the finances of the institution, has         sworn that he checks the daily entries in the cash book with         the relevant vouchers and affixes his signature, checks  the         total at the end of the day and again affixes his signature.         It is a pregnant piece of evidence  that there is a specific         entry on February 1, 1965 in the cash book that a payment of         Rs. 50/- by way of salary to P.W. 7 has been made.  The  BDO         has  signed against the entry which means, in  the  ordinary         course,  he has verified the payment with reference  to  the         relevant voucher.  If this be a fact, the accused has proba-         bly  paid the salary,  made  the necessary entry,  shown  it         together  with the relevant, voucher  to  the BDO,  got  his         signature, totalled up the figures correctly and secured the         BDO’s  signature  over again.  The exculpatory   impact   of         this  testimony is sufficient, according to ordinary  canons         of  criminal jurisprudence to relieve the accused of  culpa-         bility since reasonable doubt     is generated.  The  sensi-         ble  scepticism  about guilt which springs  from  the  BDO’s         signature  against the relevant entry is heightened by   the         fact that the Finance Handbook referred to by the High Court         in  its judgment states that it is the duty of  the  drawing         and  disbursing  officer to check each and  every  entry  of         receipt and expenditure recorded in the cash book and  peri-         odically  to  check physically the cash balances.  The  BDO,         according to the High Court, has made evasive statements  to         suppress  certain  facts and ’spoken  some  apparent  ties’.         Startlingly enough, the Sessions Court has recorded P.W.  8,         the  BDO,  as false and unbelievable in  regard  to  certain         other  charges and gone to the further extent of  concluding         that four entries  figuring  as  charges against the accused         had  been  really made to the BDO  himself    ’who  probably         embezzled  these amounts’.  The consequential  acquittal  of         the  accused on these four charges has not  been  disturbed.         In  sum, therefore, the conclusion is irresistible that  the         BDO, the top officer in full financial control, had  behaved         irresponsibly  or  delinquently with regard to the funds  of         the block office, had been described as too mendacious to be         depended  and  had convicted himself, of  gross  neglect  of         public duty in regard to the checking of the cash  register,         out  of  his own mouth.  If we are to  attach--there  is  no         reason for a Court not to do so--weight to the contemperane-         ous  entry in the cash register coupled with  the  signature         of   the  BDO  the  same  day,  as against  his  ipse  dixit         later, the accused is entitled to the  benefit  of  reasona-         ble doubt.  There is likely to have been a separate  voucher         evidencing  the payment of Rs. 50/- which is the subject  of         the  defalcation because the BDO is not likely to  have  at-         tested the entry of that payment without checking it up with         the corresponding receipt.         693             Two  circumstances  fall to be  mentioned   before   the         probative  balance-sheet  can be struck.  The entry  of  Rs.

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       50/-  on February 1, 1965 is seen scored off.  Who did it  ?         Can  we guess in the dark ? Nothing on record suggests  that         the accused alone could have done it There is much credibil-         ity  in the theory that with the connivance of the  BDO  and         the  clerks  petty  sums are quietly  abstracted  from   the         public exchequer, make believe entries are made and  attest-         ing  signatures  appended by the BDO and, if  the  peril  of         detection  by  higher  officers  is  apprehended,  scorings,         additions, alterations and the like are made.  It is  common         case  that in the cash register there are many  such  cross-         ings,  cuttings, scorings and like tamperings.  Many  scape-         graces were perhaps party to these processes but one  scape-         goat cannot, for that reason, get convicted in the  criminal         court.             In this context it is pertinent to  remember  that   the         District Accountant, after a fuller examination of the books         of the block offices, has stated that the several  embezzle-         ments  have  been facilitated by the laxity of the  BDO  who         should be directed to make good the loss.  A further  recom-         mendation  by him to proceed departmentally as  against  the         BDO  and  as  against the Cashier is  also  found   in   the         report.  Whether action had been taken against the BDO,  the         State’s counsel was not able to tell us.             The sole lip service to the criminality imputed is  lent         by  PW 7. Did he receive his salary of Rs. 50/- twice over ?         Undoubtedly  he was interested in denying it.  Doubt  hardly         exists of the fact that he got his small December salary  of         Rs.  50/-  only in February next.  Far more likely  that  in         such  a situation he would have pressed for  the payment  of         Rs. 50/- to be adjusted later.  Likewise, his initial  ambi-         guity  in  plainly denying that he had been paid  twice  en-         hances  this suspicion.  When the cash affairs of the office         is in a mess, when the Chief is guilty of dereliction,  when         the  clerks  are   receiving  petty  salaries  at  irregular         intervals, the somewhat tainted testimony of PW 7 is fax too         slender  a  string to hang the guilt upon, pitted as  it  is         against the cash register entry by the BDO, apparently after         consulting  the payment voucher.  The accused was  suspended         promptly  and therefore this voucher, if it did exist,  must         have been in the office and  its non-production in court  is         not  a  matter for  drawing  an  inference against  the  ac-         cused.             We  have made this unusual probative survey of the  evi-         dence for the sole reason that the bona fides of the  prose-         cution, leaving off bigger and going at the smaller,  mixing         false  testimony with true seriously suspect and holding  on         to  the  conviction of the accused on no evidence,  which  a         reasonable person reasonably instructed in the law will rely         upon, is neither just nor legal.             The  accused,  at the time of the offence,  was  in  his         early  twenties  probably a neophyte or new entrant  into  a         little  racket.  Doubts there are about his  complicity  but         that  a man may be guilty is different from saying  that  he         must be guilty.   The dividing line between the two is         694         sometimes  fine,  but always real.  There   is   undoubtedly         collective. guilt in the conjoint delinquency in the running         of the block development office.  Public affairs and  public         funds,  especially on the developmental front,  require  far         more  integrity, orderliness, activism  and  financial  pru-         dence.  Its absence we regret, but the specific guilt of the         particular  accused not having been proved, as  mandated  by         the law, results in his acquittal.         We accordingly allow the appeal.              The  guilt-finding  function is over, but  judges  have

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       accountability to the country to the extent matters  falling         within  their  professional    examination deserve  sounding         the tocsin.  With this alibi we make a  few observations.             The  popular art of helping oneself to public money,  in         little bits or large slices, is an official pathology  whose         pernicious  spell  has proliferated  with  the  considerable         expansion in institutions of public welfare and  expenditure         for  rural  development.  From  Kautilya’s  Arthashastra  to         Gunnar Myrdal’s Asian Drama, the vice is writ large and  the         demoralising  kink in the projects for criminal  prosecution         to  eradicate  these vices in public offices  is  that  more         often  than  not the bigger engineer  of  these  anti-social         schemes figures as  prosecuting  witness and the smaller men         in  the  package deal are put up as sacrificial  goats.  The         head escapes, the hand is chased down and, when  the   Court         convicts,  cynicism, instead of censure, is  the  unintended         public  response.  In a social system of the high  and  low,         where  the wheels of punitive processes are steered  by  the         former,  laws  equal  in the face quirk  unequal  at  heart.         Crack-down Crime Control itself takes its alignment from the         social  philosophy  of  the agencies of  public  power.  The         present ease is a small symptom of a spread-out disease  and         the State, in its highest echelons, determined to down  this         rocket  of  economic offences must  launch  massive,  quick-         acting, broad spectrum prosecutorial remedies, regardless of         personal positions, and leisurely procedural apparatuses, if         high  social  dividends are  to be drawn.  The  mystique  of         ,making  the  dubious  officer the veracity  vendor  in  the         witness-box  and the collaborating minion the  dock-dweller,         is suspected as intrigue to Shelter the upper-berth culprit.         Caesar’s  wife, where public interest is at stake,  must  be         above  suspicion,  if  prosecutorial credibility  is  to  be         popular purchase.             If  the  nation, poised for socialism, must  zero-in  on         public office offences, what we have observed must not---and         surely,   will  not slumber as obiter sermons but  serve  as         catalysts to crash strategies on white-collar crimes.  In  a         developing country of  scarce  resources, husbanding  public         funds  has  a special onerousness.  Gross  negligence,  even         absent mens rea, in handling the nation’s assets by those in         office  must be visited with criminal liability as  it   in-         flicts   double   injury on that voiceless,  faceless,  woe-         stricken have-not community which is aplenty.  Public power,         under the penal Law, must be saddled  with         695         higher  degree of care, if Indian jurisdiction is to  fulfil         its  social mission through developmental legislation.   Had         such a law existed, many superior officers routinely signing         away  huge sums or large contracts could have been  alterted         into  better  standards  by  potential   penal  consequence.         The present case is an instance in point and our  parliamen-         tarians we hope, will harken.         M.R.                                                  Appeal         allowed.         696