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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 224 OF 2012

SUKH RAM          ..Appellant

Versus

STATE OF HIMACHAL PRADESH                  ..Respondent

WITH

CRIMINAL APPEALS  NO. 2290-2291 of 2014 & 2292-2293 of 2014

J U D G M E N T

R. BANUMATHI, J  .

Present  batch  of  appeals  arise  out  of  three  separate

judgments  of  the  High  Court  of  Himachal  Pradesh  passed  in

Criminal Appeals No. 418 of 2007, 419 of 2007 and 420 of 2007 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.    

2. Common facts arising out of these criminal appeals are

as follows:- During the relevant point of time i.e. 1983-1986, there 1

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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 development of land etc.  Upon recommendation

of the Block Development Officer (BDO), 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 Sewak, while submitting applications on behalf of the

villagers for these loans, was involved in misappropriation of loan

amounts by forging their 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  of

records being the same.  Criminal Appeal No.224 of 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 2

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Ram,  Balbir  Singh-Block  Development  Officer  and  Arun  Kumar

Sood, Branch Manager, UCO Bank Darlaghat. During enquiry, it

further came to light that disbursement of loans 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  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 IPC 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 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 of Nathu Ram, Kirpu and

others but only matched the signature of appellant-Sukh Ram.    

5. To  substantiate  the  charges,  in  the  trial  court,

prosecution 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 3

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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 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 that the appellant–Sukh Ram’s (Gram Sewak) task

was  to  take  the  applications  for  loan  as  well  as  subsidy  and

accused Balbir Singh’s (BDO) task was to sanction the loan and

subsidy  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 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 also on law.  The High Court pointed out that

even though the executive magistrate before whom the specimen 4

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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.  High Court relied on the decision

of this Court in Vijay alias Gyan Chand Jain vs. State of M.P., 1994

SCC (Crl) 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 persons.    

7. On  the  charges  of  criminal  conspiracy,  High  Court

accepted the plea made by Balbir Singh (BDO) that he sanctioned

the loans because the applications were verified by the appellant.

High Court acquitted Balbir Singh (BDO) observing that there was

lack of evidence suggesting conspiracy and held that no criminal

conspiracy could be made out. The plea of Arun Kumar Sood, Bank

Manager, UCO Bank Darlaghat that he released the loan amounts

because the loans were sanctioned by Balbir Singh (BDO) and he

disbursed the amounts when the loanees were identified before him

by the appellant was also accepted by the High Court and Arun

Kumar Sood, Bank Manager, UCO Bank Darlaghat was acquitted.

The High Court reversed the judgment of acquittal and found the 5

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appellant  guilty  of  forging  loan  applications  of  PW-5  and  PW-7

(Ex.PW5/B and  Ex.PW7/A)  and  other  documents  and  convicted

him for the offences punishable under Sections 468 IPC and also

for  the  offence  of  using  said  forged  applications  as  genuine

punishable  under  Section  471  IPC.  On  being  convicted,  the

appellant appeared before the 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.10,000/-  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  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 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 6

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amply  corroborated  by  the  documentary  evidence  and  also  the

opinion of the handwriting expert. 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.    

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  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-Arun  Kumar  Sood,  who  after  opening  the  account  of

loanees  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 7

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of the beneficiaries and after doing this, beneficiaries were asked to

execute  the  documents  like  application,  term  loan  agreement,

hypothecation agreement, proforma  bills etc.  In all these cases,

case of the 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 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 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 Garja 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 Darlaghat and never visited the bank for that purpose

and  has  also  not  made  any  application  for  grant  of  loan.   The 8

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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 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,  prosecution  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 were not that of the said

witnesses.  During the course of investigation, 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 fingerprint  bureau.   On comparison of  the specimen

signatures of the witnesses with the disputed signatures and also

the admitted signatures of the appellant-Sukh Ram, in his report

(Ex.PW20/C-1 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.    

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14. Trial court discarded the opinion evidence of PW-20 on

the ground that the executive magistrate was not the competent

authority  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.

15. In  Sukhvinder  Singh’s case,  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 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  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 10

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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 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  Vijay  alias  Gyan  Chand

Jain’s case 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 the said accused during the investigation of the case

when no matter was pending before either of them.  Section 311-A

of Cr.P.C. has been introduced by Act No.25 of 2005 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 year 2006.  Section 311-A

Cr.P.C. has been inserted on the suggestions of the Supreme Court 11

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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 of Identification 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

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, (1980) 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:

“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  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  to  compare’  and not  for  the purpose  of  enabling  the  investigating  or  other  agency  ‘to compare’.  If  the case is still  under investigation 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 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 the question would be whether certain alleged writings are those of the other person or not?

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Obviously not.  If not, why should not make any difference if the  investigating  agency  seeks  the  assistance  of  the  court under Section 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?”

19. After  referring  to  Section  5  of  the  Identification  of

Prisoners  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 Cr.P.C. reads as under:-

“Section 311A. Power of Magistrate to order person to give specimen signatures or handwriting.-If 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 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 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.2292-2293 of  2014,

Gurditu  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 on the pretext that loan would be 13

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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-1 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  of  2014,  Gandhi

Ram-PW-1, Mahanto-PW-2, Shankroo Devi-PW-4, Sant Ram-PW-5,

Chhote  Ram-PW-6  and  Paras  Ram-PW-10  deposed  that  they

neither applied for any 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  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  rightly

reversed the judgment of acquittal and found the appellant guilty

of the offences under Sections 468 and 471 IPC.   14

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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 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 are dismissed. As  directed

by the High Court, the sentence of imprisonment imposed on the

appellant shall 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.  

  ….……………………..J.            (V.GOPALA GOWDA)

.………………………..J.            (R. BANUMATHI)

New Delhi; July 25, 2016

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