SUKHRAMversusSTATE OF HIMACHAL PRADESH

                            [2016] 3 S.C.R. 254



A                              SUKHRAM
                                     v.
                   STATE OF HIMACHAL PRADESH
                     (Criminal Appeal No. 224of2012)
B                             JULY25,2016
          [V. GOPALA GOWDA AND R. BANUMATHI, JJ.]
          Code of Criminal Procedure, 1973: s.311-A - Power of the
    Magistrate to order person to give specimen signatures or
c   handwriting - Alleged incident of misappropriation of funds took
    place during 1983~86 - Trial court discarded the opinion of
    handwriting expert on the ground that the direction given by
    Executive Magistrate to the witnesses to give handwriting specimen
    was not warranted as Executive Magistrate did not have authority
    to enquire into or try the offence -·Trial court held that in absence
D   of legal evidence, it cannot be held that the accused had entered
    into conspiracy of committing forgery and cheating and acquitted
    the appellant and others - High Court found appellant guilty of
    forging loan applications and convicted him u/s.468 - Whether
    the Judicial Magistrate/Executive Magistrate was authorized to
    take specimen writing and signatures of the said accused during
E
    the investigation of the case when no matter was pending
    before either of them - Held: s.311-A of Cr.P.C. was introduced
    by Act No. 25 of 2005 w.ej 23.06.2006 with respect to the powers
    of the Magistrate to order the person to give specimen signatures
    or handwriting; but no such powers were there prior to the year
F   2006 - In the instant case, the occurrence was of the year 1983-
    1986 and, therefore, the authority of the Executive Magistrate to
    take specimen signatures of witnesses during the course of
    investigation cannot be disputed - Even otherwise, there is clear
    oral evidence of these witnesses denying their signatures in the
    loan application and other documents - High Court rightly
G
    reversed the judgment of acquittal and found the appellant guilty
    of the offences u/ss.468 and 471 - Evidence Act, 1872 - s. 73 -
     Identification of Prisoners Act, 1980 - s.5 - Penal Code, 1860 -
     ss.468 and 471.

H
                                    254
       SUKH RAM v. STATE OF HIMACHAL PRADESH                         255



     Sentence/Sentencing: Reduction of sentence, plea for -           A
Conviction of appellant for misappropriation of funds - Appellants
plea that he is more than 75 years of age and is suffering from
severe ailments and prayed for reduction of sentence of
imprisonment - In the facts and circumstances of the case and that
the innocence of the villagers has been misused to siphon the
                                                                      B
public money, the sentence of imprisonment of the appellant is not
reduced.
    Dismissing the appeals, the Court
     HELD: 1. Section 311-A of Cr.P.C. has been introduced
by Act No. 25 of 2005 with effect from 23.06.2006 with respect        c
to the powers of the Magistrate to order the person to give
specimen signatures or handwriting; but no such powers were
there prior to the year 2006. Section 311-A Cr.P.C. has been
inserted on the suggestions of the Supreme Court in *State of
Uttar Pradesh v. Ram Banu Misra that a suitable legislation
be brought along the lines of Section 5 of Identification of          D
Prisoners Act, 1980, to provide for the investiture of Magistrates
with powers to issue directions to any person including an
accused person to give specimen signatures and handwriting
but no such powers existed prior to such amendment. The said
amendment is prospective in nature and not retrospective. [Para       E
17) [261-H; 262-A-B]
     2. In the present case, the occurrence was of the year 1983-
1986 and, therefore, the authority of the Executive Magistrate
to take specimen signatures of PW-5 and PW-7 during the course
of investigation cannot be disputed. In any event, even               F
dehors opinion evidence of handwriting expert, there is clear
oral· evidence of PW-5 and PW-7 denying their signatures in
the loan application and other documents. Affirming the
evidence of PWs 5 and 7 and analysis of evidence, the High
Court has rightly reversed the judgment of acquittal and found
the appellant guilty of the offences under Sections 468 and 471       G
IPC. The appellant pleaded that he is more than 75 years of age
and is suffering from severe ailments and prayed for reduction of
sentence of imprisonment. In the facts and circumstances of
the case and that the innocence of the villagers has been misused
to siphon the public money, the sentence of imprisonment of the       H
256            SUPREME COURT REPORTS                         [2016] 3 S.C.R.


A     appellant is not reduced. [Paras 22 and 23) [263-H; 264-A-C]
            *State of Uttar Pradesh v. Ram Babu Misra (1980) 2
            sec 343: Am 1980 SC791:1980 (2) SCR 1067 -
            referred to.
                              Case Law Reference
B
            1980 (2) SCR 1067            referred to        Para 18
          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      224of2012.
           From the Judgment and Order dated 08.08.2011 and 12.09.2011 of
C     the High Court of Himachal Pradesh, Shimla in Criminal Appeal No.
      418 of2007.
                                      WITH
          Cr!. A. Nos. 2292-2293 and 2290-2291of2014.
D          Rajesh Srivastava, Ms. Suresh Kumari, Advs. for the Appellant.
            Suryanarayana Singh, Sr. Addi. A. G., Ms. Pragati Neekhra, Adv.
      for the Respondent.
           The Judgment of the Court was delivered by

E          R. BANUMATHI, J. I. Present batch of appeals arise out of
      three separate judgments of the High Court ofHimachal Pradesh passed
      in Criminal Appeals No. 418 of2007, 419 of2007 and 420 of2007 in and
      by which the High Court reversed the acquittal of the appellant and
      convicted him for the offences punishable under Sections 468 and 471
      of the Indian Penal Code and imposed six months imprisonment.
 F
           2. Common facts arising out of these criminal appeals are as
      follows:- During the relevant point of time i.e. 1983-1986, there was a
      government scheme for providing loans at the cheaper interest rates to
      poor persons living below the poverty line to enable them to purchase
      sheeps, buffalos, horses and for running small businesses and for
 G    development of land etc. Upon recommendation of the Block
      Development Officer (BOO), the bank disbursed these loans to the
      beneficiaries.Appellant-Sukh Ram was a Gram Sewak, Navgaon under
      Arki Sub-Division during said period, 1983 to 1986.
          3. It is the case of the prosecution that appellant-Sukh Ram, Gram
 H    Sewak, while submitting applications on behalf of the villagers for these
        SUKH RAM v. STATE OF HIMACHAL PRADESH                                 257
                   [R. BANUMATHI, J.]

loans, was involved in misappropri!jtion of loan amounts by forging their     A
signatures and thumb impressions on the applications and
acknowledgement receipts. All three appeals have been heard together
as the offences committed by the same accused persons appellant-Sukh
Ram and others as also the modus operandi of committing the forgery
and falsification ofrecords being the same. Criminal Appeal No.224 of
                                                                              B
2012 is taken as the lead case.
      4. On the basis of the preliminary enquiry, it came to light that PW-
5 Nathu Ram, PW-7 Kirpu and PW-8 Garja Ram had loans disbursed to
them despite not having applied for the loans. Consequently, a case was
registered against the appellant-Sukh Ram, Balbir Singh-Block
Development Officer and Arun Kumar Sood, Branch Manager, UCO                   c
Bank Darlaghat. During enquiry, it further came to light that disbursement
ofloans was not actually made to the beneficiaries. An FIR was registered
and on completion of the investigation and after obtaining sanction from
the government, chargesheet was filed against the appellant-Sukh Ram
Gram Sewak, Balbir Singh-Block Development Officer and Arun Kumar              D
Sood, Branch Manager, UCO Bank Darlaghat. Charges were framed
against the appellant and the said accused under Sections 409, 467, 468,
 471, 120-B and 420 !PC and under Section 13(2) of the Prevention of
Corruption Act. During the course of investigation, PW-5 and PW-7
 gave their specimen signatures in the presence of the executive magistrate
                                                                               E
and the same were sent to the handwriting expert for comparison with
 their disputed signatures in the loan application and other documents.
 Handwriting expert opined that the signatures in the loan application and
 other documents did not match the signatures ofNathu Ram, Kirpu and
others but only matched the signature ofappellant-Sukh Ram.
     5. To substantiate the charges, in the trial court, prosecution           F
examined 22 witnesses. The trial court discarded the testimony and
opinion of handwriting expert (Ex.PW20/C-1 to Ex.PW20/C-5) on the
ground that the handwritten specimen given by PW-5 and PW-7 were
taken before the executive magistrate who did not have the authority to
enquire into or try the offence. Trial court came to this conclusion that      G
charge against the accused was not proved by placing reliance on the
decision of this Court in Sukhvinder Singh & Ors. vs. State of Punjab,
(1994) 5 SCC 152. Trial court held thatthe appellant~Sukh Ram's(Gram
Sewak) task was to take the applications for loan as well as subsidy and
accused Balbir Singh's (BOO) task was to sanction the loan and subsidy
                                                                               H
258            SUPREME COURT REPORTS                          [2016] 3 S.C.R.


A     and issue letters to the bank and Arun Kumar Sood's (Branch Manager,
      UCO Bank) task was to release the loan and subsidy after securing the       •
B
      requisite documents to that effect. Trial court held that in the absence
      of legal evidence that appellant and others have forged the loan
      documents, it cannot be concluded that the accused had entered into
      conspiracy of committing forgery and cheating etc. and on those findings,
      the trial court acquitted appellant-Sukh Ram and others.
                                                                                  •
            6. Aggrieved by the judgment of acquittal, State of Himachal
      Pradesh preferred appeal before the High Court assailing the correctness
      of the decision of the trial court. The High Court differentiated the
      cases relied upon by the trial court from the case at hand on facts as
c     also on law. The High Court pointed out that even though the executive
      magistrate before whom the specimen signatures were given did not
      have the authority to enquire into or try the case; however, PW-5 and
      PW-7 gave specimen signatures voluntarily during the course of
      investigation and differentiated the cases relied on by the trial court.
0     High Court relied on the decision of this Court in Vijay alias Gyan
      Chand Jain vs. State of MP., 1994 SCC (Cr!) 1755: (1994) 6 SCC 308
      to hold that the exercise of power under Section 73 of the Evidence
      Act does not apply in cases where the investigating officer approaches
      the executive magistrate or tehsildar for taking specimen signatures or
      writings or where specimen is admitted by the accused or concerned
 E    persons.
           7. On the charges of criminal conspiracy, High Court accepted the
      plea made by Balbir Singh (BOO) that he sanctioned the loans because
      the applications were verified by the appellant. High Court acquitted
      Balbir Singh (BOO) observing that there was lack of evidence suggesting
 F    conspiracy and held that no criminal conspiracy could be made out. The
      plea of Arun Kumar Sood, Bank Manager, UCO Bank Oarlaghat that
      he released the loan amounts because the loans were sanctioned by
      Balbir Singh (BOO) and he disbursed the amounts when the loanees
      were identified before him by the appellant was also accepted by the
 G    High Court and Arun Kumar Sood, Bank Manager, UCO Bank Oarlaghat
      was acquitted. The High Court reversed the judgment of acquittal and
      found the appellant guilty of forging loan applications of PW-5 and PW-
      7 (Ex.PWS/B and Ex.PW7/A) and other documents and convicted him
      for the offences punishable under Sections 468 !PC and also for the
      offence of using said forged applications as genuine punishable under
 H
        SUKH RAM v. STATE OF HIMACHAL PRADESH                                   259
                   [R. BANUMATHI, J.]

Section 471 !PC. On being convicted, the appellant appeared before the          A
High Court and he was questioned about the sentence and the High
Court sentenced the appellant to undergo simple imprisonment for six
months and to pay a fine of Rs. I 0,000/- for each of the offences for he
had been convicted. Being aggrieved, the appellant is before us.
      8. Learned counsel for the appellant submitted that High Court             B
failed to appreciate that no case was pending before the executive
magistrate and he was not competent to take the specimen signatures of
the witnesses; there was no occasion for the police to produce the
witnesses before him and obtain their signatures. It was further submitted
that while setting aside the acquittal of the appellant, High Court has not
properly construed the provisions of the Evidence Act and erred in relying
                                                                                 c
upon the evidence of handwriting expert to convict the appellant.
     9. Per contra, learned counsel for the respondent submitted that
the prosecution has proved the guilt of the accused by relying on
convincing evidence, oral testimony of witnesses amply corroborated by
the documentary evidence and also the opinion of the handwriting expert.         D
It was submitted that since the trial court failed to appreciate the evidence
against the appellant, the trial court has laid great emphasis on the alleged
lacunae in the investigation, High Court rightly reversed the judgment of
acquittal and convicted the appellant and the impugned judgment warrants
no interference.                                                                 E
      10. We have carefully considered the rival contentions, judgment
of the trial court, impugned judgment of the High Court and also material
on record.
      11. During the relevant time, admittedly, appellant-Sukh Ram was
posted as Gram Sewak and he was to collect applications from the                 F
prospective loanees duly signed, thumb impressions marked by them
and certain columns of the application were required to be filled up by
him. After that, the loan papers were presented to BDO-Balbir Singh
and BDO used to sanction loan and subsidy and then send a letter of
sanction to the Bank Manager-Arnn Kumar Sood, who after opening
                                                                                 G
the account ofloanees and after following the requisite formalities, used
to disburse the loan and subsidy to the beneficiaries. From the very
beginning, the concerned officials were required to scrutinize the papers
i.e. economic viability, technical feasibility and antecedents of the
beneficiaries and after doing this, beneficiaries were asked to execute
the documents like application, term Joan agreement, hypothecation               H
260            SUPREME COURT REPORTS                          [2016] 3 S.C.R.


A     agreement, profonna bills etc. In all these cases, case ofthe·prosecution
      is that neither the loan amount nor the subsidy was actually disbursed to
      the beneficiaries but was misappropriated by the appellant and others.
             12. To substantiate the prosecution case, PW-5 Nathu Ram, PW-6
      Sant Ram and PW-8 Garja Ram were examined who deposed that they
B     did not apply for any loan and nor did they put their signatures in the
      documents. PW-5 Nathu Ram has categorically stated that he did not
      apply for any loan from the UCO Bank Darlalghat and that application
      for loan Exs.PW5/A and other documents, PW5/B and PW5/C were
      not signed by him. Likewise, PW-6 Sant Ram has also stated that he did
      not apply for any loan from UCO Bank Darlaghat and specifically denied
c     the execution of the loan documents (Exs.PW6/A to PW6/G). PW-7
      Kirpu has also deposed that he had not signed any document for obtaining
      loan. PW-8 Gar:ja Ram, the alleged beneficiary, has stated that he is an
      illiterate and does not sign and only thumb marks documents. PW-8 has
      further stated that he has never applied for loan from UCO Bank
D     Darlaghat and never visited the bank for that purpose and has also not
      made any application for grant of loan. The statement of the above
      witnesses would clearly show that the documents were forged to avail
      the loan and the loan amount and subsidy amount were misappropriated.
                                                                      ,
            13. To corroborate the version of the witnesses that they did not
E     sign on loan documents and receipts and to prove that the signatures on
      the documents are that of the appellant-Sukh Ram and to prove the guilt
      of the accused that he forged the documents to misappropriate the
      government money, prosecutron has examined PW-20 Mohinder Singh
      (handwriting expert) who opined that the disputed signatures of the
      witnesses PW-5 (Nathu Ram) and PW-7 (Kirpu) in the loan applications
 F    were not that of the said witnesses. During the course ofinvestigation,
      specimen signatures of the witnesses PW-5 (Nathu Ram) and PW-7
      (Kirpu) were obtained before the executive magistrate, Arki and sent to
      the handwriting expert and fingerprintbureau. On comparison of the
      specimen signatures of the witnesses with the disputed signatures and
G     also the admitted signatures of the appellant-Sukh Ram, in his report
      (Ex.PW20/C-l to Ex.PW20/C-3), PW-20 opined that the disputed
      signatures in the loan application and other documents were not that of
      witnesses (PW-5 Nathu Ram and PW-7 Kirpu) but they tallied with the
      signature of appellant-Sukh Ram.

 H          14. Trial court discarded the opinlon evidence of PW-20 on the
        SUKH RAM v. STATE OF HIMACHAL PRADESH                               261
                   [R. BANUMATHI, J.]

ground that the executive magistrate was not the competent authority         A
before whom the fingerprint and handwriting of the witnesses could be
taken as no proceeding was pending before the executive magistrate.
In this regard, trial court placed reliance upon Sukhvinder Singh s case
and held that the opinion evidence of handwriting expert cannot be used
against the accused.
                                                                             B
      15. In Sukhvinder Singh scase, it was held that the direction given
by the Tehsildar-Executive Magistrate to the accused to give his specimen
writing was clearly unwarranted and, therefore, the said specimen writing
could not be made use of during the trial and the report of handwriting
expert was rendered of no consequence at all and could not be used
against the accused to connect him with the crime. It was held that the      c
direction to an accused to give specimen handwriting can only be issued
by the court holding enquiry under the Criminal Procedure Code or the
Court conducting the trial of such accused.
      16. High Court differentiated Sukhvider Singh s case from the
case at hand on facts as also on law. High Court pointed out that in the     D
matter at hand, admittedly, the authority-Executive Magistrate before
whom the specimen signatures were given did not have the authority to
enquire into or try the case. However, as observed by the High Court,
during the course of investigation, PW-5 and PW-7 gave the specimen
signatures willingly. In Sukhvinder Singh s case, specimen writing of        E
accused was taken as per the direction of the tehsildar; whereas in the
present case PW-5 and PW-7 were produced before the Executive
Magistrate by the police with a request that their signatures be taken by
the Executive Magistrate. Sukhvinder Singh 's case is clearly
distinguishable on facts from the case at hand. High Court further relied
on another decision rendered in Vrjay alias Gyan Chand Jain's case           F
wherein in the facts and circumstances of the said case, it was held that
procurement of specimen handwriting of accused by Naib Tehsildar was
not in violation of Section 73 of Evidence Act.
      17. The question is whether the Judicial Magistrate/ Executive
Magistrate .was authorized to take specimen writing and signatures of        G
the said accused during the invesHgation of the case when no matter
was pending before either of them. Section 31 I-A ofCr.P.C. has been
introduced by Act No.25 of2005 with effect from 23.06.2006 with respect
to the powers of the Magistrate to order the person to give specimen
signatures or handwriting; but no such powers were there prior to the        H
262            SUPREME COURT REPORTS                          [2016] 3 S.C.R.


A     year 2006. Section 311-A Cr.P.C. has been inserted on the suggestions
      of the Supreme Court in State of Uttar Pradesh v. Ram Banu Misra,
      ( 1980) 2 SCC 343: AIR 1980 SC 791, that a suitable legislation be brought
      along the lines of Section 5 ofldentification of Prisoners Act, 1980, to
      provide for the investiture of Magistrates with powers to issue directions
      to any person including an accused person to give specimen signatures
B
      and handwriting but no such powers existed prior to such amendment.
      The said amendment is prospective in nature and not retrospective.
           18. In State of Uttar Pradesh v. Ram Babu Misra, (} 980) 2 SCC
      343: AIR 1980 SC 791, the Supreme Court dealing with the scope and
      ambit of Section 73 of the Evidence Act held as under:
c
            "The second paragraph of Section 73 enables the Court to give
            specimen writings 'for the purpose of enabling the Court to
            compare' such writings with writings alleged to have been written
            by such person. The clear implication of the words 'for the purpose
            of enabling the Court to compare' is that there is some proceeding
D           before the Court in which or as a consequence of which it might
            be necessary for the Court to compare such writings. The
            direction is to be given for the purpose of 'enabling the Court tu
            compare' and not for the purpose of enabling the investigating or
            other agency 'to compare'. If the case is still under investigation
E           there is no present proceeding before the Court in which or as a
            consequence of which it might be necessary to compare the
            writings. The language of Section 73 does not permit a Court to
            give a direction to the accused to give specimen writings for
            anticipated necessity for comparison in a proceeding which may
            later be instituted in the Court. Further, Section 73 of the Evidence
 F          Act makes no distinction between a Civil Court and a Criminal
            Court. Would it be open to a person to seek the assistance of the
            Civil Court for a direction to some other person to give sample
            writing under section 73 of the Evidence Act on the plea that it
            would help him to decide whether to institute a civil suit in which
 G          the question would be whether certain alleged writings are those
            of the other person or not? Obviously not. If not, why should not
            make any difference if the investigating agency seeks the
            assistance of the court under Sectiou 73 of the Evidence Act on
            the plea that a case might be instituted before the Court where it
            would be necessary to compare the writings?"
H
        SUKH RAM v. STATE OF HIMACHAL PRADESH                                   263
                   [R. BANUMATHI, J.]

      19. After referring to Section 5 of the Identification of Prisoners        A
Act, 1980 in Ram Babu Misra :S case, this Court suggested that a suitable
legislation be made along its lines to provide for investiture of Magistrates
with powers to issue directions to any person including an accused person
to give specimen signatures and handwriting. Accordingly, a new Section
311-A was inserted in the Criminal Procedure Code. Section 311.-A
                                                                                 B
Cr.P.C. reads as under:-
       "Section 3 11 A. Power of Magistrate to order person to give
       specimen signatures or handwriting.-lf a Magistrate of the first
       class is satisfied that, for the purposes of any investigation or
       proceeding under this Code, it is expedient to direct any person,
       including an accused person, to give specimen signatures or
                                                                                 c
       handwriting, he may make an order to that effect and in that case
       the person to whom the order relates shall be produced or shall
       attend at the time and place specified in such order and shall give
       his specimen signatures or handwriting:
       Provided that no order shall be made under this section unless the        D
       person has at some time been arrested in connection with such
       investigation or proceeding."
     The said amendment is prospective in nature and not retrospective.
     20. Similarly, in Criminal Appeal Nos.2292-2293of2014, Gurditu              E
Ram-PW-2, Sohan Lal-PW-3, Badri Ram-PW-4, Mast Ram-PW-5
deposed that their signatures were obtained on some papers by the
accused-Sukh Ram 011 the pretext that loan would be distributed to them
as well as subsidy, but they did not get the entire amount, they were
promised. While Smt. Savitri Devi-PW-8 deposed that she did not sign
on any of the documents as she is illiterate and Smt. Vidya Devi-PW-I            F
deposed that she did not apply for any loan and did not sign on any of the
documents.
     21. In Criminal Appeal Nos. 2290-2291 of2014, Gandhi Ram-PW-
!, Mahanto-PW-2, Shankroo Devi-PW-4, Sant Ram-PW-5, Chhote Ram-
PW-6 and Paras Ram-PW-I 0 deposed that they neither applied for any              G
loan nor signed on any document. Upon consideration of evidence
adduced by prosecution, in our view, High Court righty reversed the
judgment of acquittal. The conviction of appellant in all the criminal
appeals is confirmed.
      22. In the present case, the occurrence was of the year 1983-1986          H
264             SUPREME COURT REPORTS                          [2016) 3 S.C.R.


A     and, therefore, the authority of the Executive Magistrate to take specimen
      signatures of PW-5 and PW-7 during the course of investigation cannot
      be disputed. In any event, even dehors opinion evidence of handwriting
      expert, there is clear oral evidence of PW-5 and PW-7 denying their
      signatures in the loan application and other documents. Affirming the
      evidence of PWs 5 and 7 and analysis of evidence, the High Court has
B
      rightly reversed the judgment of acquittal and found the appellant guilty
      of the offences under Sections 468 and 471 !PC.
            23. Learned counsel for the appellant submitted that the appellant
      is more than 75 years of age and is suffering from severe ailments; he
      has prayed for reduction of sentence of imprisonment. Considering the
c     facts and circumstances of the case and that the innocence of the villagers
      has been misused to siphon the public money, we are not inclined to
      reduce the sentence of imprisonment of the appellant.
           24. In the result, all the' appeals a,re dismissed. As directed by the
      High Court, the sentence of imprisonment imposed on the appellant shall
D     run concurrently. The appellant is on bail and his bail bonds shall stand
      cancelled. The appellant shall be taken to custody to serve out the
      remaining sentence.
      Devika Gujral                                             Appeals dismissed.




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