K. Dhanasekaran v. State By Inspector O...

1. Accused in Calendar Case No. 128 of 1993 on the file of the First Additional District Judge-cum-Chief Judicial Magistrate, Salem is the appellant in the above appeal. Initially the appellant herein was charge sheeted under Sections 467 and 468 I.P.C along with two others. Subsequently the case was tried only against the appellant and, by the impugned judgment, the learned First Additional Sessions Judge, convicted him of the offences under Sections 467 and 468 I.P.C and sentenced him to undergo Rigorous Imprisonment for five years under each of the two offences to run concurrently. Aggrieved by the said conviction and sentence, the appellant has filed the above appeal before this Court. For convenience I shall refer the appellant as accused.

2. The case of the prosecution is as follows: The accused is a friend of one Kaliappa Gounder, father of one K. Prakash who has been examined as P.W.1 They are residing in Kumalankuttai, Erode. In 1991 when P.W.1 was enquired by the police regarding ownership of a Maruthi Gipsy Jeep, he replied that he had not purchased any such vehicle. It is the case of P.W.1 that after some time, the accused enquired his address, avocation etc., as he is distantly related to him. According to P.W.1, since the accused was known to him, he furnished all the details including his address. When the accused was brought by the police, the accused made a statement that he purchased a Maruthi Gipsy jeep impersonating his (P.W.1's) signature. On seing the signature signed by the accused, P.W.1 has stated that it was not his signature. One Kanagasabapathy was examined as P.W.2 He is residing in Easwaran Koil Street, Erode and doing textile (javuli) business. He has showed the signatures of P.W.1 One Rajamanickam, the then Village Administrative Officer of Navapatti, Mettur Taluk has been examined as P.W.4 According to him, on 24-2-91 he was summoned by two police constables of Mettur Police Station. He went to Mettur Police Station, where the Inspector of Police enquired the accused and obtained a confessional statement from him (accused) in his (P.W.4's) presence. The admissible portion of his statement is marked as Ex.P-4. Then the accused took them to his house, where he produced a receipt. The Inspector of Police seized the receipt under a mahazar in which P.W.4-the Village Administrative Officer put his signature. The accused and P.W.4-Village Administrative Officer were again taken to the Police Station and on direction by the Inspector of Police, the accused put his signatures in 3 blank papers, in which P.W.4 attested. The signed papers have been marked as Ex.P-5 series. Again the accused was asked to write a matter in one paragraph and he accordingly wrote the same and put his signature thereunder. The same was also attested by P.W.4 P.W.5-Sithan when he was working as Head Clerk in Judicial Magistrate's Court-No. 3, Erode, received a requisition-Ex.P-6 from the Inspector of Police, to send the records seized in Mettur Town P.S Crime No. 98/91 to the Forensic Science Laboratory. As per Ex.P-7 letter, he sent the documents to the Assistant Director, Chennai for examination. Ex.P-9 is the copy of the letter sent by the Court. Ex.P-8 is the letter received from the Inspector on 24.3.91 and Ex.P-10 is the report received from the Forensic Science Laboratory. One Christopher Rajasekar who was working as Branch Manager in Union Motors Services Private Limited at Trichy during the year 1990-91, was examined as P.W.6 He deposed before the Court that the accused booked a Maruthi Gipsy jeep in the name of Prakash. The accused brought two Demand Drafts, one for Rs. 1,48,000 and another for Rs. 6,000. The various signatures including the signature in question were sent to the handwriting expert for his opinion. The handwriting expert was examined as P.W.8 and his report marked as Ex. P-10. The Inspector of Police has been examined as P.W.10 and the Officer who registered the First Information Report has been examined as P.W.11 and the police officer who made further investigation has been examined as P.W.12 P.W.13 Inspector of Police, CB EID at Erode has deposed that he took specimen signatures from the accused in 7 papers (Ex.P-3 series) and sent the same to the Judicial Magistrate's Court No. 3, Erode, which was subsequently sent to the Forensic Laboratory. After completing the investigation, P.W.12 laid the charge sheet against the accused under Sections 467 and 468, I.P.C

3. Learned counsel appearing for the appellant/accused, after taking me through the entire materials, including the order of the learned I Additional Sessions Judge, has raised the following contentions:

(i) The charge framed against the accused is vague and it does not convey specific allegation against the accused or his involvement with the commission of offence;

(ii) On the basis of expert's opinion alone, the accused cannot be convicted for offences under Sections 467 and 468 I.P.C;

(iii) The Police Officer failed to adhere to the provisions contained in Section 5 of the Identification of Prisoners Act, 1920.

(iv) The evidence of P.W.4 is highly suspicious and artificial;

(v) The persons working in the Maruthi Sales Depot i.e, P.W.6 and P.W.7 themselves admitted that there was neither loss to the Maruthi Company nor the accused cheated them.

On the other hand, learned Government Advocate would contend that the prosecution has not only relied upon the expert's (P.W.8) evidence, but also the other witnesses, namely, P.Ws.3 and 4 as well as the Investigation Officer-P.W.12 He further contended that the charges framed against the accused are clear and there is no discrepancy. According to him, compliance of Section 5 of the Identification of Prisoners Act, 1920 is not mandatory and it is only directory.

4. I have carefully considered the rival submissions.

5. As regards the contention that the charges framed against the accused are vague, it is useful to refer the fourth and fifth charges framed by the Judicial Magistrate-No. 3, Erode against the accused Dhanasekaran:

“Fourthly: That you A3 (Dhanasekaran) on or about the same day, time, and in the course of same transaction forged a certain document purporting to be an order letter to cheat the dealer of maruthi Gypsy Van and thereby committed an offence punishable U/s. 467 of the IPC.

Fifthly: That you A3 (Dhanasekaran) on or about the same day, time and in the course of same transaction forged the order letter and delivery receipt of Wit Maruthi Gypsy van dealer intending that it shall be used for purpose of cheating and that you thereby committed an offence punishable U/s. 468, IPC.”

As per Section 211 of the Code of Criminal Procedure, every charge under this Code shall state the offence with which the accused is charged. In other words, the charge must be specific and it must contain details. It is also relevant to refer Section 215, Cr.P.C, according to which, there is no need to state all the particulars of the offence and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. In our case, the above charges, namely charges 3 and 4, have been framed along with other 3 charges (charges 1 to 3) which pertain to other 2 accused, namely, Ranjan and Sakthi who are not the accused here. On a careful reading of the entire charges and in the light of the illustrations provided under Section 215, Cr.P.C, I am of the view that the error pointed out by the learned counsel for the appellant/accused shall not be regarded as a material error; accordingly I reject the first contention.

6. Now I shall consider the evidence of P.Ws.1, 3 and 4. Though the case of the prosecution is that it was the accused who forged the signature of P.W.1 and cheated the dealer and secured a Maruthi Gypsy van as if P.W.1 has made an application for delivery of Maruthi Gypsy van, the signatures of the accused, alleged to have been signed by him in the name of P.W.1, were not shown to P.W.1 and put questions as to its genuineness when he was in the box. This aspect has not been disputed by the learned Government Advocate. P.w.1 alone is the competent person to speak about the genuineness of the signatures said to have been made and forged by the accused before the Court. The said opportunity was not given to him. In such a circumstance, though the prosecution has examined P.ws.3 and 4, as rightly contended by the learned counsel for the appellant/accused, they are strangers to the incident. Further, they have not identified the signature of P.W.1 In such a circumstance, it is not safe to rely upon their evidence.

7. Coming to the evidence of P.W.8-expert and his report-Ex.P13, first of all, admittedly though the Inspector of Police has obtained the specimen signatures of the accused in the presence of P.W.4, he has not made requisition to the Magistrate concerned under Section 5 of Identification of Prisoners Act to get the specimen signatures from the accused and also the specimen signature from P.W.1 for comparison. Section 5 of the Identification of Prisoners Act, 1920 reads as follows:

“5. Power of Magistrate or order a person to be measured or photographed. - If a Magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, 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 the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer.”

The very same provision has been considered by the Hon'ble Supreme Court in Mohd. Aman v. State of Rajasthan, 1997 SCC (Crl) 777. The following observation of Their Lordships in para 8 is relevant:

“8……. Even though the specimen finger prints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate….”

8. It is clear that in the light of the observation made in order to dispel suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence, it is desirable to get the specimen signatures from the accused before or under the order of a Magistrate. Admittedly, in our case, the Inspector has not obtained permission or any order from the Magistrate concerned to get the signatures from the accused as well as P.W.1 for sending the same to expert's opinion.

9. It is also argued that in the absence of any evidence to show that the specimen signatures were obtained as per the procedure laid down under Section 5 of the Identification of Prisoners Act, it is not safe to impose conviction merely on the basis of expert's opinion. In our case, I have already referred to the fact that the evidence of P.Ws.1, 3 and 4 are not reliable for the reasons stated above; accordingly, in the absence of compliance of Section 5 of the Identification of Prisoners Act, now I shall consider whether the conviction can be based only on the expert's (P.W.8's) evidence. The following conclusion of the Supreme Court in S. Gopal Reddy v. State Of A.P., 1996 SCC (Crl.) 792 is pressed into service: (para 28)

“28. Thus, the evidence of P.W.3 is not definite and cannot be said to be of clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering ‘conclusive’ proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State Of Punjab , 1977 (2) SCC 210: 1977 SCC (Cri) 313, while dealing with the evidence of a handwriting expert, this Court opined: (SCC pp.213-14, para 7)

“…We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P, AIR 1957 SC 381: 1957 Crl LJ 559 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v. Mohdn. Isa, AIR 1963 SC 1728: 1963 BLJR 226 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakruddin v. State of M.P, AIR 1967 SC 1326: 1967 (2) Andh LT 38 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.”

It is clear from the above judgment that it is not desirable to impose conviction solely on the evidence of expert without corroborative evidence either direct or circumstantial. A perusal of the oral evidence of P.W.8 shows that on receipt of the materials, namely, various signatures of the accused, he was not satisfied, hence he called for some more documents/materials for examination. In chief examination he has deposed thus:

This itself shows that P.W.8 was unable to take any decision with the materials sent by the Inspector. It is also seen that thereafter at the request of the Inspector of Police, some more signatures were sent for examination. In cross-examination, P.W.8 has deposed,

It is clear from the evidence of P.W.8 that no contemporaneous document with the signatures of P.W.1 was sent to him for examination. In the absence of an order from the Magistrate concerned under Section 5 of the Identification of Prisoners Act, corroborative evidence either direct or circumstantial and in the light of statement of P.W.8, I am satisfied that the conclusion arrived based on the evidence of P.W.8 alone cannot be sustained.

10. Now I shall consider the evidence of Village Administrative Officer-P.W.4 and the Branch Managers of Union Motors, namely, P.Ws.6 and 7. According to P.W.4, Village Administrative Officer, Navapatti village, on 24-2-91 around 2 A.M two policemen from Mettur Police Station came and took him to the Police Station. According to him, the distance between his village and Mettur Police Station is about 8 K.M He further deposed that on going there in his presence, the accused Dhanasekaran was asked to put his specimen signatures. On direction by the Inspector of Police, the accused signed as Prakash in 4 places in 3 sheets. P.W.4 has put his signature as attesting witness. The signatures of the accused are marked as Ex.P-5 series. In this regard, it is relevant to refer the statement of P.W.8 In cross-examination, P.W.8 has stated that, It is clear that no contemporaneous document with the signature of P.W.1 was placed before him for his opinion. It is further clear that it would be possible for the signatory to sign differently when he is asked to sign for a particular purpose. In the light of the statement of P.W.8, the evidence of P.W.4 cannot be given any importance or helpful to the prosecution case. It is also relevant to note the evidence of Branch Managers of Union Motors Services Private Limited. At the relevant time P.W.6 was working as Branch Manager of the Union Motors Services Private Limited, Trichy Branch. According to him, the Salem Branch where the accused said to have secured the Maruthi Gypsy van by forging the signature of P.W.1 has stated that, P.W.7 was a Branch Manager of Union Motors Services Limited of Salem Branch in 1990-91. The following statement are also relevant for consideration. In chief examination, he has stated that, In cross-examination, he has stated that, In fact, P.W.12, the Investigation Officer did not say anything about the statement. In continuation of his cross-examination, P.W.7 has stated, It is clear from the above statement that P.W.7 was aware that it was Dhanasekaran and not Prakash. In spite of knowing the same, he has not made any complaint either to his superior Officers or to the police regarding the conduct of the accused in putting his signature as Prakash. In the light of such conduct, it is not desirable to accept the version of P.W.7 Regarding the fact that there is no loss or damage to their company like P.W.6, P.W.7 has also stated that, The analysis of the evidence of P.Ws 6 and 7 would show that first of all their statements are not reliable, even if we accept their testimony, it is clear from their version that the Union Motors Private Limited had not sustained any loss and, according to them, nobody had cheated them much less the accused.

11. In the light of what is stated above, the analysis of the entire evidence let in by the prosecution clearly show that it had miserably failed to substantiate their charges either under Section 467 or under Section 468, I.P.C, and the learned Additional Sessions Judge-cum-Chief Judicial Magistrate, Salem has committed an error in convicting the accused for the said offences. Accordingly, the conviction and sentence imposed on the accused for the offences under Sections 467 and 468, I.P.C are set aside and the Criminal Appeal is allowed.