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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: Y. BASAVADEVUDU AND ANR.

DATE OF JUDGMENT26/03/1992

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) KULDIP SINGH (J)

CITATION:  1992 SCR  (2) 344        1992 SCC  (3)  30  JT 1992 (2)   399        1992 SCALE  (1)730

ACT:      Criminal Law :      Indian Penal Code, 1860 :      Sections   409,   467,  471   and   477-A-Embezzlement- Encashment  of  fake  RBI  Demand  Drafts  in  the  name  of fictitious  persons-Falsification of accounts-Connivance  of Sub-Treasury   Officer   with  other  employees-Trial  Court holding  accused  guilty  of  offences  charged-High   Court acquitting  accused  by  giving  benefit  of   doubt-Whether justified-Held  : prosecution had discharged its  burden  of establishing   charges  levelled  against   accused   beyond reasonable  doubt  by  unimpeaching  oral  and   documentary evidence-Duty  of  accused to produced defence  evidence  to establish their innocence especially  when facts relating to payment  of  huge amount without receiving any  advice  from R.B.I. and names and identity of persons who had  identified the payees were within their knowledge-Evidence Act, 1872  : Section 106.

HEADNOTE:      Respondents  Nos.  1 and 2 and PW. 18 were  working  as Sub-Treasury  Officer, Shroff and Upper  Division  Accounto- cum-Double  Lock  Officer  respectively  in  a   non-Banking Treasury.   The State Government ordered the  conversion  of the  said Treasury into a Banking Treasury by  handing  over cash  business  to  a local Bank  from  a  particular  date. However,  on  the report of respondent No. 1 that  the  case chest was not working as the key was stuck-up in the Reserve Bank of India chest and it was not possible to hand over the case  business  on the date ordered by the  Government,  the State  Government  fixed another date,  and  the  conversion materialised,  on the revised date, about a month after  the original date.      After  sometime,  the Accountant General and  also  the regional  office of the Reserve Bank of India detected  that seven  demand  drafts  alleged to have been  issued  by  the Reserve  Bank of India were encashed in the Sub-Treasury  on the  last two days of its being handed over.  It  was  found that  no  such demand drafts had at all been issued  by  the Reserve Bank of                                                        345 India  for being encashed at the Sub-Treasury  in  question,

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and that altogether different drafts were issued relating to other  places  outside  the State,  and  except  the  serial numbers,  all  other particulars, namely the  date,  amount, name  of  the payee etc. were not at all tallying  with  the payment certificate sent by respondent No. 1, the then  Sub- Treasury   Officer.   It  was  found  that  there  was    an embezzlement to the tune of Rs. 1,22,500 out of the case  of the Sub-Treasury and all entries with regard to the  payment of such amount and the signatures  of the payees in token of receipts  of money were all fake and forged by  the  accused persons.      PW.  18 was granted pardon and declared an approver  by the District Magistrate.      The  two  respondents were charged for  offences  under Section  409,  467,  471 and 477-A  I.P.C.  The  prosecution examined 27 witnesses and produced 113 documents in  support of its case.  The respondents denied the charges but did not lead any evidence in defence.      The  trial court held that the prosecution  had  proved beyond  all  reasonable doubt that the two  respondents  and PW.18,  the  approver, together made  falsification  of  the accounts by writing false entries in the relevant  registers as  if some payments were made on the two dates in  question to the fictitious persons whose names were mentioned in  the payment  register  and other registers, and  that  both  the accused  persons and PW.18 connived in making false  entries with dishonest intention of covering up of  misappropriation of  the  public funds committed by them to the tune  of  Rs. 1,22,500.   According  it  found that  the  respondent  were guilty of the offences under Section 409, 467, 471 and 477-A I.P.C.   It  acquitted  the  approver  of  all  the  charges levelled against him.      On appeal, the High Court acquitted the respondents  on the ground that the prosecution had failed to prove the case beyond  reasonable doubt, and that though a huge amount  had been  embezzled,  nevertheless  it would not  be  proper  to convict the accused when doubt was cast and benefit of doubt had to be given to the accused.      Allowing the appeals of th State, this Court,      HELD  : 1.1 The High Court totally  misdirected  itself and  did  not  go deep into the  matter,  nor  analysed  the clinching oral and documentary                                                        346 evidence  produced  by the prosecution and gave  benefit  of doubt  to the respondents in a superficial manner.   It  did not deal with the detailed reasons given by the trial  court and  ignored the almost admitted facts and circumstances  of the  case.  The accused persons had not received any  demand drafts  from the R.B.I. and all the entries in the  relevant registers  at  the Sub-Treasury regarding payment  of  seven demand  drafts  amounting in all to Rs. 1,22,500  are  fake, false  forged  and the accused persons were the  authors  of such entries.  The prosecution has discharged its burden  of establishing  the  charges  levelled  against  the   accused persons  beyond  any manner of doubt and  the  findings  and conclusion  drawn by the trial court and the conviction  and sentence awarded by it are upheld. [350H, 357A-H]      1.2.  It is clearly proved on record that the real  and genuine demand drafts were Exhibits P.82 to P.88 issued from the  regional  office of the Reserve Bank of India  and  the same  were  not  drawn  to be  payable  at  Sub-Treasury  in question or at any other Sub-Treasury situated in the State. The  amounts,  the  dates  and  the  payees  were   entirely different  from those demand drafts which have been  entered and  shown encashed from the said Sub-Treasury.   Since  the

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respondents  had  taken  the  stand  that  the  payments  or encashment  of the demand drafts and the entries  found  the Exhibits P.2., P.3, P.5, P.6, P.8 and P.9 were all  correct, and it may be that fake or spurious or bogus Reserve Bank of India demand drafts might have been presented by the payees, it  was necessary for them to disclose the identity  of  the person  who identified the payees at the time of  encashment of  the fake drafts.  Admittedly, no advice for  payment  of the demand drafts had been received before the encashment of the  demand drafts and even the alleged demand drafts  after payment are not available on the  record and the respondents took  a  false stand that they sent the paid drafts  to  the office  of the Accountant General.  Indisputably the  amount of  Rs.  1,22.500 was withdrawn by the respondents  and  the same  has  been  shown to have been paid  against  fake  and spurious demand drafts to unknown persons. [356C-F]      1.3.  The High Court went wrong in throwing the  burden on  the prosection to prove that the entries in column 5  of Exhibits  P.8  and P.9 containing the  signatures  or  thumb impression  of the payees was made by the  respondents.   In the  facts  and circumstances of this case, it  was  totally wrong  to  place  such  burden  on  the  prosecution.    The prosecution   has   discharged   its   burden   by   leading umimpeaching oral and documentary                                                   347 evidence that no demand drafts were issued from the  R.B.I., against  which payments have been shown on the two dates  in question  in th record of Sub-Treasury and the names of  the payees  were also of unknown an unidentified  persons.   The entries  in  columns  1 to 4 of Exhibits  P.8  and  P.9  are admitted  to  be  correct by  the  accused  persons.   These entries  showing the names of the payees and the amount  are proved  to  be   false and incorrect beyond  any  shadow  of doubt.  In this background, it was no longer the duty of the prosecution  to show as to who made the entries in column  5 of  Exhibits  P.8  and  P.9 A.1 had  put  his  signatures on Exhibits P.8 and P.9 and according to him the payments  were made after getting the identity of the payees verified by  a person well known to him. [356G-H, 357A-B]      1.4. When the payment of a huge amount of Rs.  1,22,500 was  being  made without receiving any advice  from  Reserve Bank  of  India,  it  was all the  more  necessary  to  make thorough   enquiry  regarding  the  correct   identity   and genuineness of the payee.  These facts being in the  special knowledge  of the respondents, it was incumbent on  them  to disclose  the  names  and identity of  the  person  who  had identified  the payees and to establish their  innocence  by producing  such  person or the payees in  defence  evidence. Section  106 of the Evidence Act clearly provides that  when any  fact is especially within the knowledge of any  person, the burden of proving that fact is upon him. [357C-D]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal  Nos. 384-385 of 1982.      From  the  Judgment  and order  dated  11.7.80  of  the Hyderabad  High Court in Crl. Appeal No. 459/78  &  Transfer Crl. Appeal No. 700 of 1978.      A.S. Nambiar and Guntur Prabhakar for the Appellants.      Mrs. K. Amareswari, C.S. Srinivasa Rao and B. Kanta Rao for the Respondents.      The Judgment of the Court was delivered by      KASLIWAL,  J. These appeals by grant of  special  Leave

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are directed against the judgment of the Andhra Pradesh High Court  dated 11.7.1980 in Criminal Appeal Nos. 459 & 700  of 1978.      Y.  Basavadevudu (in short ‘A.1’) and S. Subha Rao  (in short ‘A.2’)                                                   348 accused-respondents  were tried for offences under  Sections 409.  467,  471 and 477-A of I.P.C   The  learned  Assistant Sessions Judge, Kammam found both the accused persons guilty for  the  above  offences  and  awarded  various  terms   of imprisonment  and  fine  for the  aforesaid  offences.   The accused  persons  aggrieved  against  their  conviction  and sentence  filed  appeals before the High  Court.   The  High Court by its judgment dated 11.7.1980  gave benefit of doubt and  acquitted  the  accused  persons  of  all  the  charges levelled  against them.  Fine, if paid, was directed  to  be returned  to  the  accused persons.   The  State  of  Andhra Pradesh  aggrieved against the order of acquittal  has  come before this Court by grant of special leave.      The  prosecution  story is that  A.1  was  Sub-Treasury Officer  (hereinafter referred to as the ‘S.T.O.’)  and  A.2 was  working  as shroff in the non-banking  Sub-Treasury  at Venkatapuram.    The  said  non-banking   Sub-Treasury   was converted  into a banking Sub-Treasury from 18.6.1973 by  an order of the Finance Department dated 14.6.1973. A.1 who was working  as  S.T.O. reported to the then  District  Treasury Officer  (PW.14)  that the key was stuck up in  the  Reserve Bank  of  India  chest and as such it was  not  possible  to convert the Sub-Treasury into a banking Sub-Treasury on  the above  date.   The  Government,  therefore,  issued  another order and the Sub-Treasury Venkatapuram was converted into a banking  Sub-Treasury in the afternoon of 17.7.1973.   After sometime  the  Accountant  General  of  Andhra  Pradesh   at Hyderabad  as  well as the Reserve Bank of India  office  at Madras  detected  that seven demand drafts alleged  to  have been  issued by the Reserve Bank of India were  encashed  on 16.7.1973 and 17.7.1973 in the Sub-Treasury of Venkatapuram. It  was  found that no such demand drafts had  at  all  been issued by the Reserve Bank of India office Madras for  being encashed  at  the Sub-Treasury at  Venkatapuram.   In  fact, altogether  different drafts were issued relating  to  other place  outside  the State of Andhra Pradesh and  except  the serial  numbers,  all other particulars, namely,  the  date, amount, name of the payee etc. were not at all tallying with the  payment  certificate  sent  by  the  then  Sub-Treasury Officer (A.1).  It was found that there was an  embezzlement to  the  tune of Rs. 1,22,500 out of the cash  of  the  Sub- Treasury and all entries with regard to the payment of  such amount and the signatures of the payees in token of receipts of  money were all fake and forged by the  accused  persons. It  may  be stated that PW.18 Sh. N. Venkata Swamy  who  was working   as  Upper  Division   Accountant-cum-Double   Lock Officer,  in the Sub-Treasury Venkatapuram at  the  relevant time was granted pardon and declared an                                                        349 approver by the District Magistrate.      The prosecution examined 27 witnesses and produced  113 documents  in  support  of its case.   The  accused  persons denied the charged but did not lead any evidence in defence. During  the  course  of  their  explanation  recorded  under Section  313  Cr.  P.C.,  A.1  stated  that  there  was   no embezzlement  of any public funds and the payments  made  of the drafts on 16.7.1973 and 17.7.1973 were genuine  payments and  there was no falsification of accounts nor  defalcation of  any  amounts.   A.1 also stated that he  sent  the  said

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demand  drafts to the Accountant General of  Andhra  Pradesh directly and he later on also sent payment certificates.  As he did not know the payees of such demand drafts, they  were not  identified by a person known to him.  A.2 also  took  a similar  stand.   Thus,  the main  defence  of  the  accused persons  was that the payments or encashments of the  demand drafts on the respective dates as found in Exhibits P.2  and P.3 were genuine.  The relevant entries in the Reserve  Bank of  India  remittance  register   (Exhibit  P.1),   relevant entries  in Exhibits P.5 and P.6 in the Sub-Treasury  office number  book (Exhibit P.4) and also the entries in  Exhibits P.8 and P.9 in the shroff chitta book (Exhibit P.7) were all correct and it may be that fake or spurious demand drafts of R.B.I.  might  have been presented by the  payees,  but  the accused  persons  did not embezzle any public funds  on  any dates, much less on 16th and 17th July, 1973.      The  Learned Assistant Sessions Judge  after  elaborate discussion  of the oral and doumentary evidence  arrived  at the  conclusion that the prosecution had proved  beyond  all reasonable  doubt that A.1 and A.2 and PW. 18 together  made falsification  of the accounts by writing false  entries  in the relevant registers as if some payments were made on 16th and  17th July, 1973 to the fictitious persons  whose  names were mentioned in the payment register and other  registers. It  was also found that both the accused persons  and  PW.18 connived in making false entries with dishonest intention of covering   up  of  misappropriation  of  the  public   funds committed  by them to the tune of Rs. 1,22,500.   Hence  the Learned  Assistant  Sessions Judge found  both  the  accused persons guilty for the offences under Sections 409, 467, 471 and 477-A I.P.C.  The Learned Assistant Sessions Judge  also held   that after having gone through the evidence of  PW.18 it  was  quite  clear that he had not violated  any  of  the conditions  of pardon given to him and as such he  acquitted the approver of all the charges levelled against him.                                                        350      The High Court as regards PW.1, who was deputed by  the Reserve  Bank  of India Madras to enquire into  the  matter, observed  that  PW.  1 had stated  that  he  identified  the signatures  of  A.1  in Exhibits P.2  and  P.3  But,  having regard  to  the  provisions  of Section  47  of  the  Indian Evidence  Act,  unless and until foundation  was  laid  with regard  to  the capacity of this witness  to  identify   the signatures of the Sub-Treasury Officer, his statement was of no  consequence.  It was further observed by the High  Court that  even the accused in their statements stated that  they received   these  drafts  and  after  complying   with   the formalities  they  were  encashed and amounts  paid  to  the respective   payees and those drafts were sent as  would  be evident  from the despatch register.  Even Reserve  Bank  of India  Form No.11 was sent to the office of  the  Accountant General and as such they had not committed any offence.  The High  Court  held that from the evidence of PW.1  alone,  it could not be said that the prosecution had proved all  these entries  in  the various books to be in the  handwriting  of either A.1, A.2 or the approver.  As regards the evidence of the handwriting expert PW.24 the High Court observed that in the  cross-examination PW.24 stated "As the blue  enclosures in  Exhibits  P.8 and P.9 are different  from  the  received writing,  I  did not compare them at all".  From  the  above statement the High Court observed that so far as column 5 of Exhibits  P.8 and P.9 was concerned, it can safely  be  said that the prosecution had not proved the handwriting therein. It  was the duty of the prosecution to have asked  PW.24  to verify  the signatures in Exhibits P.8 and P.9 column  5  to

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find  out  as to whether the handwriting in that  column  in those  Exhibits  was actually handwriting  of  the  accused. According  to  the  High  Court  column  5  meant  for   the signatures  of  the  payees  had  not  been  proved  by  the prosecution to be in the handwriting of either A.1 or A.2 to show  that  such signatures were of bogus persons.   It  was further   observed   by  the  High  Court  that   even   the Investigation Officer (PW.26) stated that "the investigation did not reveal that any amount is misappropriated by A.2  or PW.18  at  all".  The High Court ultimately arrived  at  the conclusion  that  the prosecution failed to prove  the  case beyond  reasonable  doubt.  Though a huge  amount  has  been embezzled,  nevertheless it would not be proper  to  convict the  accused  when doubt is cast and benefit of  such  doubt will have to be given to the accused.      We have heard learned counsel for the parties and  have thoroughly  perused the record.  In our view the High  Court totally  misdirected  itself and did not go  deep  into  the matter,  nor  analysed the clinching  oral  and  documentary evidence produced by the prosecution and gave the benefit                                                   351 of  doubt  to the accused persons in a  superficial  manner. The High Court did not deal with the detailed reasons  given by the trial Judge and ignored the almost admitted facts and circumstances of the case.      Admitted facts of the case are that A.1 was working  as S.T.O.,  A.2  as  shroff and PW. 18 the  approver  as  Upper Division  Accountant-cum-Double  Lock Officer  in  the  Sub- Treasury Venkatapuram at the relevant time.  The  Government vide dated 14.6.1973 ordered for the conversion of the  non- banking Sub-Treasury into a Banking Sub-Treasury by  handing over  cash business to the local State Bank of Hyderabad  on 18.6.1973.   This was delayed on the report of  the  accused A.1 to the effect that the cash chest was not working as the key was stuck-up in the chest and it was not possible to  do so  on  the above date.  The  Government,  therefore  issued another  order  and the conversion process  materialised  on 17.7.1973.   The  accused A.1 and A.2 handed over  the  cash balance  of  R.B.I. chest as per the records  on  17.7.1973. After  sometime the Accountant General of Andhra Pradesh  at Hyderabad  as  well as the Reserve Bank of India  Office  at Madras  detected that 7 fake demand drafts alleged  to  have been issued by the Reserve Bank of India were shown to  have been  encashed  and paid on 16.7.1973 and 17.7.1973  in  the records of the Sub-Treasury of Venkatapuram.      The  details  of the seven drafts in all  amounting  to Rs.1,22,500  alleged to have been encashed and paid on  16th and  17th July, 1973 from the Sub-Treasury  of  Venkatapuram are mentioned as under :- ------------------------------------------------------------ Ex P.2          R.B.I                                    July -1973 16.7.73  Madras  2.7.73  B.D  Sri  Edara  Ramaiah   C-659307 20,328.00 IId./16.7.73 16.7.73     do  3.7.73 B.D. Sri Kothapalli Verraju  C-659308 21,785.00 IId./16.7.73 16.7.73     do 3.7.73 B. D. Sri desari Venkata Rao  C-659309 18,891.50 IId./16.7.73 16.7.73  do  3.7.73   B. D.   Sri  Botigam  Surya-  C-659310                                narayan Rao 18,236.00 IId./16.7.73 ------------ 79,240.50 ----------- Rupess Seventy nine thousand two hundred and forty and paise

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fifty. ------------------------------------------------------------ Ex.P.3 17.7.73   R.B.I.  7.7.73 B.D Sri  Vasam  Veeranna   C-659311           Madras 14,430.50 IId./17.7.73 17.7.73   do  7.7.73  B.D.  Sri  Gattala  Satyam    C-659312 13,260.00 IId.17.7.73 17.7.73  do  7.7.73  B.D.  Sri  Vanga  Sani  Ranu   C-659313 15,569.000 IId./17.7.73 ------------ 43,259.50 ------------ Monthly Total 1,22,500.00                                                      352      The  payment  of the above drafts is admitted  to  have been  made by the   accused persons and signatures or  thumb impressions  of the payees has been shown in the  record  of the  Sub-Treasury.  It has however been proved on record  by the prosecution that no such drafts were at all issued  from the Reserved Bank of India, Madras.  Neither, the dates, nor amount,  nor the name of the payees tally with  the  genuine drafts  issued from the Reserve Bank of India, Madras.   The drafts issued by the R.B.I., Madras were not even payable by Sub-Treasury Venkatapuram, rather the same did not belong to any  place in the State of Andhra Pradesh.  The  details  of such drafts are given as under :- Ex.  P.82.dt.28.6.73  D.D No. C.659307 for Rs. 3,106  issued                       by P. Manager, R.B.I. Madras, to  Sub-                       Treasury Officer, Keernur. Ex.  P.83/dt.29.6.73  D.D No. C.659308 for  Rs.  875.96  ps.                      issued by P. Manager R. B.I., Madras to                      the Sub-Treasury Officer, Car-Nicobar. Ex.  P.84/dt.3.7.73  D.D. No.  C.659309  for  Rs.1,261.65ps.                      issued by P. Manager R.B.I. to the Sub-                      Treasury Officer, Denkanikottah. Ex.  P.85/dt/6.7.73  D.D.  No C.659310 for  Rs.  153.55  ps.                      issued  by P.Manager R.B.I., Madras  to                      the Sub-Treasory Officer, Denkanikottah. Ex. P.86/dt.6.7.73.  D.D. No C.659311 for Rs. 2,800 issued by                      P.  Manager R.B.I., Madras to the  Sub-                      Treasury Officer, Denkanikottah. Ex.  P.87/9.7.73      D.D. No. C659312 for Rs. 52.00  issued                       by the P. Manager R.B.I. Madras to the                       Sub-Treasury Officer, Car-Nicobar. Ex.  P.88/dt.12.7.73  D.D. No. C. 659313 for Rs.  315.12  ps.                       issued  by  the  P.  Manager,  R.B.I.,                       Madras  to the  Sub-Treasury  Officer,                       Vayithiri.      The  Learned Assistant Sessions Judge  after  analysing the   oral   and  documentary  evidence  produced   by   the prosecution considered the explanation given by the  accused persons recorded under Section 313 of the                                                   353 Code of Criminal Procedure, 1973.  According to the  Learned Assistant Sessions Judge A.1 had stated that the drafts were presented  by  the parties on 16th and 17th July,  1973  and their  signatures were identified by some well known  person on the drafts themselves and they had drawn Rs.1,22,500 from the  R.B.I.  currency on 16th and 17th July,  1973  and  the entries  were made in the relevant books and the  same  were withdrawn  in  the presence of the approver  (PW.18).   They sent  R.B.I.  Form No.11 along with the paid drafts  to  the Accountant General, Hyderabad.  A.1 further stated that  the initials in Exhibit P.3 were of himself, Exhibit P.14 was in

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his  handwriting and the initials in Exhibits P.12 and  P.13 were also made by him.  A.2 also stated that no amounts were embezzled  by  him or A.1 or anybody and they had  sent  the paid  drafts  directly  to  Accountant  General  of   Andhra Pradesh.  The payments mentioned in the payment register and other  registers on 16th and 17th July, 1973 were  true  and correct.   He further stated that the writings  in  Exhibits P.100, P.102, P.103,10, 8, 9, 13 were made by himself.   The main contention of the accused person made before the  trial court  was  that the payments or encashments of  the  demand drafts  on the respective date as found in Exhibits P.2  and P.3  which are the relevant entries in the Reserve  Bank  of India  remittance register (Exhibit  P.1) and  the  relevant entries  in Exhibit P.5 and Exhibit P.6 in the  Sub-Treasury Officer  number book (Exhibit P.4) and also the  entries  in Exhibit  P.8  and Exhibit P.9 in the  shroff  ‘chitta’  book (Exhibit  P.7) were all correct and it may be that  fake  or spurious or bogus Reserve Bank of India demand drafts  might have  been presented by the payees, but the accused did  not defalcate  any public funds on any dates much less, on  16th and  17th  July,  1973.   The  trial  court  considered  the statement  of  PW.18, according to which  the  entires  with regard  to the payments of the Reserve Bank of India  drafts said  to  have been made on 16th and 17th  July,  1973.  The trial court considered the statement of PW.18, according  to which the entries with regard to the payments of the Reserve Bank of India drafts said to have been made on 16th and 17th July,  1973  in all the relevant books of  the  Sub-Treasury were  made  only  only  on 17.7.1973  at  the  instance  and suggestion  of accused number 1.  It was also stated by  him that  there were no persons as those mentioned on  16th  and 17th July, 1973 in Exhibits P.2 and P.3 as well as  Exhibits P.5,  P.6, P.8 and P.9, they were all fictitious  and  bogus persons  whose names were mentioned in order to give a  show of  payments made to certain persons so as to cover  up  the shortage  of case found in R.B.I. chest on  17.7.1973.   The trial  court  has observed that it was  admitted  fact  that whenever  a  demand draft is issued by the Reserve  Bank  of India to particular persons drawn                                                   354 on  a  particular Sub-Treasury, the concerned  Reserve  Bank will  send advices in advance and when the demand  draft  is presented  by the bearer, it has to be verified whether  the advices  from the concerned bank is received or not and  the payee  has to be identified by the Sub-Treasury Officer  and is the responsibility of the S.T.O. for payment of the money to the payee and if the payee is not personally known to the S.T.O., such payee has to bring an attestor, who is known to the  S.T.O.   It is also in the evidence of PW.1  PW.14  and PW.18  that  whenever advices are received, they  should  be carefully  examined and observed.  When there is no  advice, the   draft   cannot  be  encashed  except   under   special circumstances  or on the satisfaction of the genuineness  of the  drafts  presented for encashment.  The  S.T.O.  has  to identify  the  payee also.  If the S.T.O. pays  without  the advices,   he  should  write  immediately  to  the   issuing authority for sending the advices.  In the case of payee  to bring  a  person  known  to  the  S.T.O.  for  his  or   her identification  before actual payment is made and after  the payments  are  made at the end of the same day,  the  S.T.O. should  enter the paid drafts in the Reserve Bank  of  India form No. 11 and dispatch such certificate under  certificate of posting to the Accountant General directly, sending  copy of the same to the District Treasurer.  In the present  case according  to  Exhibit P.12 it is mentioned  that  the  paid

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drafts  along  with Reserve Bank of India Form No.  11  were posted to the address of the Accounted General, but the same were not sent under certificate of posting.  The trial court also  took notice of the fact that the alleged  posting  was shown to have been done on the next day.  It was also  clear from  Exhibit P.14 a letter written by S.T.O. (A.1) that  he mentioned  therein that he would trace out the  records  and submit  encashment  schedules.  It was also clear  from  the evidence  of  PW.1 that the denominations  of  the  currency notes  found  in  Exhibit P.17, the the  relevant  entry  in Exhibit  P.15 currency chest book Form T.E.T.1 of  the  Sub- Treasury  Office  Venkatapuram were not  tallying  with  the denomination  of the currency notes mentioned in the  double lock register.  The trial court held that it was quite clear that  the  serial  numbers of the drafts  mentioned  in  the relevant  records of Sub-Treasury Venkatapuram were  not  in fact the demand drafts that were issued by the Reserve  Bank of India at Madras and the real demand drafts were  Exhibits P.82  to  P.88 which were issued  to  Sub-Treasury  Officers outside  the  State of Andhra Pradesh.  Thus, it  was  clear from the evidence of PW.2, PW.18,                                                   355 PW.20, PW.21 and PW.22 that the real demand drafts that were issued  by  the R.B.I. at Madras were neither  received  nor encashed  at  Sub-Treasury Venkatapuram.  Even  the  accused persons do not say that Exhibits P.82 to P.88 were  received and   got  encashed  by  the  payees  at  the   Sub-Treasury Venkatapuram.   It was further clear that the entries  found mentioned in Exhibits P.2, P.3, P.5, P.6, P.8, P.9, P.16 and P.17 were quite incorrect entries and they were made by  the concerned  persons who were the authors of those entries  so as  to give a colour or show of payments of the  amounts  to certain  persons to cover up the shortage.  The trial  court thus,  held  that  in  the  above  circumstances,  when  the payments  mentioned  on 16th and 17th July, 1973  under  the alleged  Reserve Bank of India demand drafts were proved  to be false and bogus and the payees were ficititious  persons, it  was the bounden duty of accused numbers 1 and 2 and  the approver  to explain for the shortage of Rs.  1,22,500  from the  cash balance of the Reserve Bank of India chest in  the Venkatapuram  Sub-Treasury.   The  trial  court  took   into consideration that though the accused number 1 had stated in his  explanation  that a well known  person  identified  the payees,  but  he  has failed to give his  name,  much  less, examined  him to prove or substantiate his contention.   The payment   register  did  not  show  that  the  payees   were identified  by a particular person at the time  of  relevant payments said to have been made to them.  It has come in the evidence  of  PW.18 that there were no  such  persons  whose names  were mentioned in the payment register and all  those persons  were fictitious.  It was further held by the  trial court  that it was quite clear from the documents placed  on record  that the S.T.O. had nowhere stated that the  advices were lost or misplaced.  Accused number 1 in this regard had given  the explanation that the records in the  strong  room had been shifted and replaced for white washing purposes and the  register  could not be traced out inspite  of  diligent searches  and after the March accounts are  over,  necessary efforts  will be made to trace out the records.   The  trial court  found that inspite of several letters  and  reminders sent to A.1 the record was not made available.  The  learned trial  court  in the end arrived at the conclusion  that  in view  of the evidence adduced by the  prosecution  including the evidence of PW.18 approver and also in view of the  fact that  the  accused numbers 1 and 2 have admitted  that  they

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have  made the relevant entries in their own handwriting  in the relevant registers, it is proved that accused number  1, accused number 2 and PW.18 (approver) colluded together  and have defalcated an amount of Rs. 1,22,500 from the cash                                                     356      balance  of  Reserve Bank of India chest  in  the  Sub- Treasury Venkatapuram and made false entries in the relevant registers and brought into existence false accounts so as to cover  up  the shortage in the cash balance in  the  Reserve Bank  of  India chest of the Sub-Treasury  Venkatapuram  and thus  they  have committed grave offences  punishable  under Section 409, 467, 471, and 477-A I.P.C.      We  have  considered  the  arguments  made  by  learned counsel  for the parties and have gone through  the  record. It  is  clearly proved on record that the real  and  genuine demand  drafts were  Exhibits P.82 to P.88 issued  from  the Reserve Bank of India Madras and the same were not drawn  to be payable at Sub-Treasury Venkatapuram or at any other Sub- Treasury  situated  in  the State of  Andhra  Pradesh.   The amounts,  the  date and the payees were  entirely  different from  those demand drafts which have been entered and  shown encashed  from the Sub-Treasury at Venkatapuram.  The  stand taken  by  the  accused  persons is  that  the  payments  or encashment  of  the demand drafts and the entries  found  in Exhibits  P.2, P.3, P.5, P.6, P.8 and P.9 were  all  correct and it may be that fake or spurious or bogus Reserve Bank of India demand drafts might have been presented by the payees. In  such  circumstances  it was necessary  for  the  accused persons   to  disclose  the  identity  of  the  person   who identified the payees at the time of encashment of the  fake drafts.  It is worthwhile to note that admittedly no  advice for  payment of the demand drafts had been  received  before the encashment of the demand drafts and the accused  persons took  a  false stand that they sent the paid drafts  to  the office of the Accountant General. It is no longer in dispute that the amount of Rs. 1,22,500 was withdrawn by the accused persons  and  the  same has been shown  to  have  been  paid against fake and spurious demand drafts to unknown persons.      We  have  considered the reasoning given  by  the  High Court  and  we are clearly of the view that the  High  Court went  wrong  in throwing the burden on  the  prosecution  to prove  that the entries in column 5 of Exhibits P.8 and  P.9 containing the signatures or thumb impression of the  payees was made by the accused person.  In our view in the fact and circumstances  of this case, it was totally wrong  to  place such  burden  on  the  prosecution.   The  prosecution   has discharged  its  burden  by leading  unimpeaching  oral  and documentary evidence that no demand drafts were issued  from the R.B.I., Madras against which payments have been shown on 16th and                                                   357 17th  July, 1973 in the record of Sub-Treasury  Venkatapuram and  the  names  of  the payees were  also  of  unknown  and unidentified person.  The entries in columns 1 to 4 Exhibits P.8  and  P.9  are admitted to be  correct  by  the  accused persons.  These entries showing the names of the payees  and the  amount are proved to be false and incorrect beyond  any shadow of doubt.  In this  background, it was no longer  the duty  of the prosecution to show as to who made the  entries in  column 5 of Exhibits P.8 and P.9.  The S.T.O. (A.1)  has put his signatures on Exhibits P.8 and P.9 and according  to him the payments were made after getting the identity of the payees  verified  by a person well known to him.   When  the payment  of  a huge amount of Rs. 1,22,500  was  being  made without  receiving  any advice from Reserve Bank  of  India,

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Madras,  it  was  all the more necessary  to  make  thorough enquiry  regarding the correct identity and  genuineness  of the  payee.  The above facts being in the special  knowledge of  the  accused  persons,  it was  incumbent  for  them  to disclose  the  names  and  identity of  the person  who  had identified the payees and so to establish their innocence by producing  such  person or th payees  in  defence  evidence. Section  106 of the Evidence Act clearly provides that  when any  fact is especially within the knowledge of any  person, the burden of proving that fact is upon him.      This  leads  us  to irresistible  conclusion  that  the accused persons had not received any demand drafts from  the R.B.I. Madras and all the entries in the relevant  registers at  Sub-Treasury  Venkatapuram regarding  payment  of  seven demand  drafts  amounting in all to Rs. 1,22,500  are  fake, false and forged and the accused persons were the authors of such  entries.  We are fully satisfied that the  prosecution has  discharged  its burden  of  establishing  the   charges levelled  against the accused persons beyond any  manner  of doubt  and  the findings and conclusion drawn by  the  trial court are upheld.      In  the result, we allow these appeals, set  aside  the judgment  of the High Court and affirm the judgment  of  the Assistant  Sessions Judge, Khammam dated 13th  March,  1978. We uphold the conviction as well as the sentence awarded  by the   learned  Assistant  Sessions  Judge.    The   accused- respondents shall surrender to the bail bonds forthwith. N.P.V.                                       Appeal allowed.                                                        358