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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: VINAYA CHANDRA CHHOTA LAL PATNI

DATE OF JUDGMENT: 05/09/1966

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR RAMASWAMI, V. BHARGAVA, VISHISHTHA

CITATION:  1967 AIR  778            1967 SCR  (1) 249  CITATOR INFO :  C          1967 SC1326  (8)  RF         1973 SC2200  (3)

ACT: Criminal  Trial-Complainanl’s  statement-Corroboration  with documents,   statements   of   accused   in   other   cases- Admissibility-Handwriting expert, examination, if essential. Indian  Evidence  Act, 1872 (1 of 1872),  s.  45-Handwriting Expert, evidence, if conclusive.

HEADNOTE: The   respondent  was  charged  under  s.  408  I.P.C.   for misappropriating  the  funds  of  his  employer.   The  only witness  to prove the entries and signatures on the  cheques was  the  complainant (employer) and  corroboration  of  his statement  was sought from four documents two of which  were said to be handed over to the complainant by the  respondent when the respondent’s conduct was found out.  The other  two documents were the, respondent’s statement as are ’accused n a  criminal case and an application given by the  respondent in another case.  The trial court convicted the  respondent. On  appeal, the High Court acquitted the respondent  holding that  (i)  it  was unsafe to rely on the  statement  of  the complainant  alone. (ii) the documents were inadmissible  in evidence, and (iii) it was for the prosecution to example  a handwriting  expert  to prove the disputed  handwriting,  In appeal by the State. HELD : The appeal must be allowed. (i)  The  complainant was competent to speak  about  entries and signatures, as the respondent had been his employee  for a  number  of  years.  He had many an occasion  to  see  the respondent write and sign. [251 D-E] (ii) The documents were admissible in evidence. The   documents  handed  over  by  the  respondent  to   the complainant  and  the statement of  the  respondent  provide strong  corroboration to the statement of  the  complainant. In  fact  the admission in the document  together  with  the statement  could  also  be treated as a  confession  of  the respondent  cashing the cheques, the subject matter  of  the charge in this case. The statements of the respondent in the criminal case and in

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the application in another case were admissible in  evidence to prove his admissions with respect to these facts. [253 H; 254 F] (iii)     It was not essential that handwriting expert  must be  examined  in a case to prove or  disprove  the  disputed writing.   A  Court  is competent to  compare  the  disputed writing of a person with others which are admitted or proved to  be  his  writings.  It may not be safe for  a  Court  to record  a  finding  about a person’s writing  in  a  certain document merely on the basis of comparison, but a Court  can itself compare the, writing in order to appreciate  properly the  other evidence produced before it in that regard.   The opinion of an handwriting expert is also relevant in view of s.  45 of the Evidence Act, but that too is not  conclusive. The  sole evidence of a handwriting expert is  not  normally sufficient  for  recording  a definite,  finding  about  the writing being of a certain person or not. [251 G, H]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No, 43  of 1964. 250 Appeal  by special leave from the judgment and  order  dated July  18, 1963 of the Gujarat High Court in Criminal  Appeal No. 527 of 1963. A.S.R.  Chari, M. V. Goswami AND B. R. G. K. Achar, for  the appellant. V. S. Nayyar, AND H. M. Chenoy, for the respondent. The Judgment of the Court was delivered by Raghubar Dayal, J. This appeal, by special leave, is by  the State of Gujarat against the order of the Gujarat High Court acquitting the respondent of the offence under s. 408 I.P.C. The  respondent  was an employee of Nalinkant P.W.  1,  sole proprietor  of  Arora Trading Company, in 1959.  He  was  in service from 1954.  It was his duty to withdraw moneys  from the  Union Bank of India Ltd., with which Nalinkant  had  an account.  Nalinkant used to leave his cheque book with a few blank  signed cheques with the respondent when he had to  go out  of Ahmedabad, the place of business.   The  prosecution case  is  that the respondent took advantage of  such  blank cheques,  filled them up and cashed them from the  Bank  and misappropriated the amounts so received.  He made no entries about such receipts in the petty cash book maintained by the firm. Nalinkant  was the only witness to prove that  the  relevant entries in the cheques and the signatures at the back of the cheques  in  token of having received the amounts  from  the Bank were of the respondent.  Corroboration of his statement was  sought from four documents two of which were  documents said to have been handed over to Nalinkant by the respondent when the respondent’s ,conduct of committing breach of trust with respect to certain items was found out on December  14, 1959.   The  other  two  documents  were  the   respondent’s statement   as  an  accused  in  a  criminal  case  and   an application  given  by the respondent  in  another  criminal case. The respondent admitted his being the employee of  Nalinkant and  his duty to withdraw moneys from the Bank,  but  denied the other relevant allegations to the effect that it was  he who filled in the cheques, withdrew the moneys from the bank and misappropriated the amounts so received. The trial Court accepted the testimony of Nalinkant and  con evicted  the respondent of the offence under S. 408 IPC  for

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committing  breach  of  trust with respect  to  the  amounts withdrawn in respect of three cheques.  On appeal, the  High Court   acquitted   the  respondent.   The   learned   Judge considered  it  unsafe  to  rely  on  the  evidence  of  the complainant  alone  and held the various  documents  ,to  be inadmissible in evidence. 251 Before dealing with the contentions for the parties in  this Court  we  may  mention  that  the  State  of  Gujarat   has instituted  five  other criminal appeals, Nos. 44 to  48  of 1964  against this very respondent against his acquittal  by the  High  Court  in  five other  cases  in  regard  to  his committing  breach  of trust with respect to  various  other amounts  withdrawn by him from the Bank by filling in  blank cheques  which  had  been  left  duly  signed  with  him  by Nalinkant.   The  High Court’s order of acquittal  in  those cases  is  based on the same grounds on which the  order  of acquittal  under  appeal is  based.   Consequently,  learned counsel  for  the  State  and  the  respondent  made   their submissions with reference to the judgment of the High Court in this appeal. Mr. Chari, for the State, has argued that the High Court was in error in holding the four documents to be inadmissible in evidence  and  in expressing the view that it  was  for  the prosecution  to  rely  upon the evidence  of  a  handwriting expert  on the question of the handwriting of a  person,  as the handwriting of a person could be proved by other means. In  the present case it wag’ proved by the complainant  that the various entries in the cheques and the signatures on the reverse  of the various cheques were in the  handwriting  of the  respondent.   The complainant was  competent  to  speak about  them  as the respondent had been his employee  for  a number  of years.  The complainant had many an  occasion  to see him write and sign. No reason has been given by the learned Judge for  differing with the view of the trial Court that the complainant was  a reliable  witness.   The mere expression it is not  safe  to rely  upon the evidence of the complainant alone in  a  case like this’ is not a sufficient ground for differing from the trial  court  in its opinion about the  credibility  of  the witness who had deposed before it. This  statement is not factually correct also as  the  trial Court had itself compared these writings and signatures with certain  other writings which had been proved to be  of  the respondent.   A Court is competent to compare  the  disputed writing of a person with others which are admitted or proved to  be  his  writings.  It may not be safe for  a  Court  to record  a  finding  about a person’s writing  in  a  certain document merely on the basis of comparison, but a Court  can itself compare the writings in order to appreciate  properly the  other evidence produced before it in that regard.   The opinion of a handwriting expert is also relevant in view  of s.  45 of the Evidence Act, but that too is not  conclusive. It  has  also  been  held  that  the  sole  evidence  of   a handwriting expert is not normally sufficient ’or  recording a  definite  finding about the writing being  of  a  certain person or not.  It follows that it is not essential that the handwriting  expert must be examined in a case to  prove  or disprove the dis Sup.  C1/66-3 252 puted  writing.  It was therefore not right for the  learned Judge to consider it unsafe to rely upon the evidence of the complainant in a case like this, i.e., in a case in which no handwriting  expert  had  been examined in  support  of  his

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statement. This is sufficient to set aside the order of the High  Court acquitting   the   respondent  as  the   evidence   of   the complainant,  when believed, is sufficient to establish  the offence  against the respondent.  However, we shall  discuss the  admissibility  of the four documents as  we  understand that  it  is really for a decision on that  point  that  the State preferred this appeal. One  of the documents is a slip on which, according  to  the complainant,  the respondent noted down the various  amounts which  he  had  misappropriated, after he  had  perused  the counterfoils  of  the cheques.  The respondent did  this  on December  14,  1959,  when  the  complainant,  on   checking accounts  with  the statement of account received  from  the Bank,  found  that  the  two did not  tally  and,  when,  on questioning, the respondent admitted having  misappropriated some  amounts.   This  slip of paper mentions  a  number  of cheques  besides  certain  amounts  received  from   certain persons.   With  respect to the cheques, their  number,  the date  of  the  cheque  or of  withdrawal  and  the  amounts, presumably  the  amounts withdrawn, are  noted.   The  three cheques in the present case are mentioned in this list.   It may  be  mentioned that most of the other cheques  were  the subject  matter of the proceedings in the other cases  which have given rise to the other five appeals. The learned Judge rejected this document as inadmissible as, according  to  him, it did not convey any  meaning  and  the document could not be read along with the explanation  given by  the  complainant.  In this, we are of opinion  that  the learned Judge was in error.  A statement of the  complainant about  the circumstances in which this document was  written and  what it purported to indicate, is admissible.  What  is relevant for the case is what is ultimately proved and  what is proved would depend on the statement of the  complainant. His statement, if believed, establishes that the particulars noted on this slip relate to sums which were admitted by the respondent  to have been misappropriated by him.   The  very fact  that  the details of the three  cheques,  the  amounts drawn on which are said to have been misappropriated in this case, find a place in this list, bears out the statement  of the  complainant.  The entries in this list,  together  with the  statement of the complainant, make out a confession  of the  respondent  to  the effect that he  had  withdrawn  the amounts  of  the cheques mentioned in the list and  that  he misappropriated   them.    This   document   therefore   was admissible in evidence.  In fact, the learned Judge himself, after  observing that the document could not be admitted  in evidence even if it be in the handwriting of the respondent, observed:                             253 "  that  document  can however be admitted as  part  of  the extra-judicial  confession  said to have been  made  to  the complainant." The  other document consists of a statement written by  them respondent  on December 14, 1959, subsequent to his  writing out the first document, viz., the list of the various  items misappropriated.   The  complainant  has  stated  that   the respondent  wrote  it on being asked by the  complainant  to give  him a statement in writing so that he may be  able  to present the same before the income-tax, authorities.  He has further  deposed  that it was a voluntary statement  of  the respondent  and that no threat or promise had been held  out to   him  for  making  that  writing.   The  learned   Judge observed,.  with  respect to this document, that  there  was nothing  in  that statement to show that it amounted  to  an

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admission, that there was no reference to the cheques  which were the subject matter of the charge in the case and that a general  statement that he had committed breach of trust  by withdrawing  the amount of the cheques did not amount to  an admission.   Curiously enough, the learned Judge observed  a little later:               "Further,  it  amounts to  an  extra  judicial               confession, and in a case like this it is  not               safe  to base a conviction on  extra  judicial               confession." It  is  true that there is no specification of  the  cheques which were cashed by the respondent and the amounts received and misappropriated.  This vagueness of a sort is  explained by the statement of the complainant and by the proof of  the first    document   which   gave   the    various    amounts misappropriated.   Apart  from  this,  the  statement  makes reference to certain other facts which had a bearing on  the question  in issue in the present case.  In  this  statement the respondent admits being entrusted from time to time with blank  cheques  bearing the  complainant’s  signatures,  his committing  breach of trust by withdrawing big amounts  from the bank by exchanging those cheques, especially during  the ten months prior to December 14, 1959 and his not  crediting the  amounts of those cheques, presumably, in the  accounts. It  further  mentions that the respondent,  had  passed  the writing out of his own sweet will and not on account of  any improper pressure brought upon him.  He further states  that he  had given this writing willingly on his being  suspected and  on one or two such cheques having been found  out.   In our  opinion, this document is clearly an admission  of  the circumstances which have a bearing on the accusation brought against  the respondent and is thus admissible in  evidence. In  fact,  the admission in the document together  with  the statement  of  the  complainant can also  be  treated  as  a confession  by  the  respondent of  his  cashing  the  three cheques, the subject matter of the charge in this case. 254 The learned Judge is not right in observing that it was  not safe  to base a conviction on an extra-judicial  confession. The  ,conviction  in this case was not based merely  on  the extra-judicial  confession.  There was the evidence  of  the complainant  against  the  respondent.   The  extra-judicial confession  strongly  corroborated  that  statement.    This document too, therefore, was admissible in evidence and  had been wrongly ignored by the learned Judge. The  other  two  documents were  considered  irrelevant  and therefore  inadmissible  in evidence.  One of  them  is  the statement  of the respondent made under s. 342 Cr.  P.C.  on September  3,  1960, in a criminal case  against  him.   The statements  about  the  respondent  being  a  clerk  of  the complainant  and  the admissions of the respondent  in  this statement about the complainant giving him cheques signed by him  so that he could, whenever necessary, draw the  amounts and  about  his  maintaining the petty  cash  book  and  the ,circumstances in which the defalcations were found out  and about  the respondent giving the writing dated December  14, 1959  admitting  the defalcations, are  admissions  for  the purposes  of the present case and as such this document  was admissible in evidence to prove the respondent’s  admissions with respect to these facts. The fourth document was an application given by the  respon- dent  on October 27, 1960 in another criminal  case  against him.   The document, as a whole, is not of much use  to  the prosecution,  but at the same time it cannot be held  to  be inadmissible  as  it consists of  certain  statements  which

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could  be used as admissions in this ,case even  though  the respondent  had given such explanations with respect to  his admissions as might have reduced their evidentiary ’value. We  are  of opinion that the documents handed  over  by  the respondent  to the complainant on December 14, 1959 and  the statement of the respondent dated September 3, 1960  provide strong corroboration to the statement of the complainant. The result is that this appeal must succeed.  We accordingly allow the appeal, set aside the order of the High Court  and restore that of the trial Court. Y.P.               Appeal allowed. 255