2014 ALL MR (Cri) 5091
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.C. CHAVAN, J.
The State of Maharashtra Vs. Popat Shankar Palwe
Criminal Appeal No.1458 of 2003
10th July, 2012
Petitioner Counsel: Ms. V.S. MHAISPURKAR
Respondent Counsel: Mr. V.V. GANGURDE
Penal Code (1860), Ss.420, 468, 511 - Fraud, cheating and forgery - Acquittal - Appeal against - Appreciation of evidence - Deputy Director refused any communication for appointment as Milk Recorder in Animal Husbandry Department - Allegations made that bribe given to accused but evidence of witness vague about time, date and place where the payment was made - Nothing to connect accused to crime except vague support by PW - Hand writing expert or expert to whom samples of type writing documents from office of Deputy Director were sent, not examined - Evidence of panchas not proved as genuine - Prosecution failed to examine Investigating Officer - Victim's case implicating accused only after victim was in police custody - Nothing to indicate any demand of money or forgery of any letter for department - Person introducing victim to accused not examined as witness - Offence of cheating or forgery not proved - Accused would be entitled to acquittal. (Para 11)
JUDGMENT :- This appeal is directed against acquittal of the respondent ordered by the learned Additional Sessions Judge, Nashik after setting aside respondent's conviction recorded by the learned Chief Judicial Magistrate, Nashik for the offences punishable under Sections 420 & 468 read with Section 511 of the Indian Penal Code. The learned Chief Judicial Magistrate had sentenced the respondent to suffer rigorous imprisonment for a period of one year with a fine of Rs.1000/- or in default to suffer further rigorous imprisonment for 30 days which was set aside by the learned Additional Sessions Judge, Nashik by his impugned Judgment.
The complainant Shri Jahagirdar, Deputy Director of the Animal Husbandry Department received an application from Shri Madhukar Shinde reminding the department of his pending appointment to the post of Milk Recorder. This surprised the department, since the department had no documents about appointing Madhukar Shinde to any such post. The department, therefore, asked Madhukar Shinde to produce necessary documents. Madhukar Shinde then sent copies of the application as well as the letters which he claimed to have received from the department. First was a letter informing Madhukar Shinde that his appointment was being processed and was awaiting a nod from the Secretary of Animal Husbandry Department. The second letter informed Madhukar that sanction had been received and his appointment may be made in due course. Since the department had not sent any such communication to Madhukar, the Deputy Director Shri Jahagirdar filed a report with the police against Madhukar Shinde. Madhukar Shinde was arrested and then Madhukar Shinde came up with a case which is the foundation of this prosecution. Madhukar told the police that he had been introduced to the respondent by one Ratnakar tailor, who told him that the respondent would help him getting a job. The respondent asked him to send an application to the department. Madhukar Shinde, accordingly, gave an application to the respondent, who issued a receipt of his application. The respondent then handed over a letter to Madhukar Shinde stating that his application had been forwarded to the higher authorities. The respondent is alleged to have demanded a sum of Rs.2,000/- for processing the matter further. Madhukar Shinde claims to have paid a sum of Rs.1000/- in about three to four months after he had received the first letter. Six to seven months after the first instalment, Madhukar Shinde again paid a sum of Rs.600/- and ultimately paid a further sum of Rs.200/- leaving unpaid balance of Rs.200/-. The respondent was transferred to Mumbai from Nashik. Thereafter, Madhukar received a letter from the department which is at Exhibit 52 informing him that he had been selected and he may wait for appointment order. Madhukar Shinde was elated and contacted the respondent, who told Madhukar to wait for further communication from the department. As it did not come up, as already stated, Madhukar wrote to the department and then bubble burst.
3. In course of investigation, police recorded statements of witnesses from the department as also that of one Sanjay Sonawane in whose presence some amount was allegedly paid by Madhukar to the respondent. They also obtained specimens of hand writing and signature of the respondent as also the specimen of type writing on department's type writer. The specimen along with admitted and disputed documents were sent to the experts. On completion of investigation, charge sheet was sent to the Court of Judicial Magistrate F. C., Nashik.
4. The learned Magistrate charged the respondent of the offences punishable under Sections 420, 468 and 511 of the Indian Penal Code. Since the respondent pleaded not guilty, he was put on trial. The trial seems to have been eventually concluded before the learned Chief Judicial Magistrate, who convicted and sentenced the respondent as aforementioned. The respondent preferred an appeal before the Sessions Court which allowed the appeal by the impugned Judgment.
5. I have heard the learned Additional Public Prosecutor for the State, who chose to question the Judgment and Order of the learned Additional Sessions Judge. I have also heard the learned counsel for the respondent. With the help of both the learned counsel I have gone through the evidence on record. PW-1 Madhukar Babu Shinde is the victim of alleged fraud played by the respondent and states that as to how on the advice of Ratnakar tailor he approached the respondent, made an application to the Animal Husbandry Department, made payments to the respondent, received letters from the department and wrote letters to the department. He admits that he was, in fact, arrested by the police on the report of Shri Jahagirdar, Deputy Director. He, however, denied that he falsely implicated the respondent because he had been arrested by the police. PW-2 Sanjay Madhukar Sonawane claims to have accompanied PW-1 Madhukar Shinde when some payment was made to the respondent. The witness is vague about the date, time or place when the payment was made. He does not state the purpose for which the payment was made or the amount which was paid in his presence. However, towards the end of his examination-in-chief possibly he was referred to police statement. He then stated that the amount was demanded after assuring that Madhukar would get a job.
6. PW-3 Vasant Narayan Jahagirdar, the Deputy Director had given a report at Exhibit 49. He proved correspondence received by his office and sent by his office. PW-4 Sau. Maya Shamrao Phalke is another Deputy Director, who was examined for getting a sample of type written document. PW-5 Dnyaneshwar Mahipati Gaikwad is a clerk in the Animal Husbandry Department, who stated that he had not scribed the letters at Exhibits 51 and 52. PW-7 Mukund Dwarkanth Bhagwat, Deputy Director identified Exhibit 61 to be in the hand writing of the respondent. He denied his signatures on the letters in question.
7. PW-6 Prakash Narayan Kamble, PW-8 Ravindra Mahadeo Nikalje, PW-10 Vishnu Chandar Deokar and PW-11 Yatish Shrikrishna Pandit are panchas on various panchanamas whereby documents, specimen signatures and specimen writing were collected by the police. Unfortunately all these witnesses in their cross examination stated that they had only signed panchanamas which were already scribed.
9. The learned Additional Public Prosecutor submitted that the evidence tendered would clearly shows that the respondent had promised to secure a job for Madhukar Shinde and had demanded a sum of Rs.2000/- and received Rs.1,800/- from Madhukar Shinde. She submitted that but for the fact that the department chose to ask Madhukar Shinde to produce all the correspondence, the mischief played by the respondent would never have been brought to light. According to her, the evidence of PW-1 Madhukar Shinde and PW-2 Sanjay Sonawane about the demand and payment of money for the purpose of getting a job is duly corroborated by the circumstantial evidence provided by the witnesses from the department and panchas in whose presence the documents had been seized.
10. The learned counsel for the respondent, on the other hand, submitted that there is nothing to show that the respondent had anything to do with the letters allegedly sent by the department to Madhukar Shinde. He submitted that Madhukar Shinde's allegation about the respondent having demanded and received money surfaced only after the witness was taken in custody and it is just possible to save his skin or skin of someone else Madhukar decided to make the respondent scape goat. He also submitted that there is nothing to show that Madhukar, in fact, had various amounts for being paid to the respondent as claimed by him. He drew my attention to the observations of the learned Additional Sessions Judge in this behalf. As rightly pointed out by the learned APP, these observations are thoroughly irrelevant and unwarranted. Whether Madhukar had requisite sum with him or not was not the matter of inquiry before the learned Judge. Therefore, the learned Judge should not have rested his finding about absence of complicity of the respondent on the foundation of Madhukar not having the requisite scholarship amount with him.
11. All the same, the fact remains that but for the allegation of Madhukar, supported vaguely by PW-2 Sanjay Sonawane, there is nothing to connect the respondent to the crime. Hand writing expert or expert to whom samples of type writing from the office of Deputy Director were sent have not been examined for the reasons best known to the prosecution. Ambivalent evidence of panchas does not help the prosecution in proving that any sample of hand writing or signature were really taken before being sent to the expert. As if this was not enough, the prosecution also failed to examine the investigating officer. Therefore, if the evidence of PW-1 Madhukar Shinde, who seems to have come out with the case implicating the respondent only when he was in police custody, and that of PW-2 Sanjay Sonawane is excluded, there is nothing to indicate that the respondent had demanded or taken any money or forged any letter for the department. Ratnakar tailor, who is supposed to have introduced Madhukar Shinde to the respondent has not been examined. He would have been the best witness to show that the respondent had promised Madhukar Shinde that he would secure a job for Madhukar Shinde. Given the nature of evidence which was tendered at the trial, rather the nature of evidence which was withheld at the trial, namely that of hand writing expert, it cannot be said that the learned Judge erred in concluding that the offence of cheating or forgery or attempting to receive a sum of Rs.2000/- was not proved.