# Smt. Madhu Tandon v. State of U.P

- **Citation:** (2024) 3 ILRA 1276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-05
- **Case number:** Criminal Appeal No. 95 of 1998
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-madhu-tandon-v-state-of-u-p-51564
- **Pages:** 10

## Headnote

Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Sections 120B, 409, 419, 420, 467,
Prevention of Corruption Act, 1947 -
Section 5(1)(c),5(2) - Criminal misconduct
in discharge of official duty - Standard of
proof required for conviction is proof
beyond all reasonable doubts - Burden of
proof is always on the prosecution and
never shifts on to the accused person -
Suspicion, however, grave cannot take
place of proof and the prosecution cannot
afford to rest its case in the realm of "may
be" true but has to upgrade it in the
domain of "must be" true in order to steer
clear
of
any
possible
surmises
or
conjectures
-
Reliance
solely
on
handwriting analysis and contradictory
witness statements cannot suffice for a
conviction.(Para - 20,22,28)

(B) Practice & Procedure - Finding given
by the expert examiner is not full proof -
Trial court must exercise caution when
relying on expert evidence, especially
handwriting analysis, which lacks the
same degree of certainty as fingerprint
analysis
-
Judges
must
proactively
interrogate witnesses to distinguish truth
from falsehood rather than leaving it
entirely to the advocates - Trial Court
must
shed
their
inertia
and
must
intervene
in
all
those
cases
where
intervention is necessary for the ends of
justice.(Para -14,27)

Appellant's husband was convicted of criminal
breach of trust and criminal misconduct -
misappropriating funds while serving as branch
manager of UCO Bank - prosecution relied on
testimony of various witnesses, including bank
officials and complainant - trial court convicted
him - Appellant appealed against this conviction
- citing insufficient evidence and unreliable
witness testimony. (Para - Paras: 3, 4, 7, 10,
12)

HELD: -
Prosecution failed to establish guilt beyond a
reasonable doubt. Testimony of witnesses
wholly
untrustworthy
and
unbelievable.
Testimonies of other witnesses, even if taken on
their face value, fall short of the requirement of
proof of the charge beyond all reasonable
doubt. Conviction and sentence passed by trial
court set aside. Appellant's husband acquitted of
all charges.(Paras: 20, 28, 29,30)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

## Text

1276 INDIAN LAW REPORTS ALLAHABAD SERIES
personal bond and surety bonds are
canceled and sureties are discharged.

32. Let a copy of this judgment
along with trial court's record be sent
back to the court concerned for immediate
compliance.
----------
(2024) 3 ILRA 1276
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.03.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 95 of 1998

Smt. Madhu Tandon ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
R.B.Khare, Anil Kumar Rajvanshi, Ayodhya
Prasad Mishra, H.S.Jain, Shesh Ram Verma

Counsel for the Respondent:
Govt. Advocate, Bireshwar Nath, Shiv P. Shukla

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Sections 120B, 409, 419, 420, 467,
Prevention of Corruption Act, 1947 -
Section 5(1)(c),5(2) - Criminal misconduct
in discharge of official duty - Standard of
proof required for conviction is proof
beyond all reasonable doubts - Burden of
proof is always on the prosecution and
never shifts on to the accused person -
Suspicion, however, grave cannot take
place of proof and the prosecution cannot
afford to rest its case in the realm of "may
be" true but has to upgrade it in the
domain of "must be" true in order to steer
clear
of
any
possible
surmises
or
conjectures
-
Reliance
solely
on
handwriting analysis and contradictory
witness statements cannot suffice for a
conviction.(Para - 20,22,28)

(B) Practice & Procedure - Finding given
by the expert examiner is not full proof -
Trial court must exercise caution when
relying on expert evidence, especially
handwriting analysis, which lacks the
same degree of certainty as fingerprint
analysis
-
Judges
must
proactively
interrogate witnesses to distinguish truth
from falsehood rather than leaving it
entirely to the advocates - Trial Court
must
shed
their
inertia
and
must
intervene
in
all
those
cases
where
intervention is necessary for the ends of
justice.(Para -14,27)

Appellant's husband was convicted of criminal
breach of trust and criminal misconduct -
misappropriating funds while serving as branch
manager of UCO Bank - prosecution relied on
testimony of various witnesses, including bank
officials and complainant - trial court convicted
him - Appellant appealed against this conviction
- citing insufficient evidence and unreliable
witness testimony. (Para - Paras: 3, 4, 7, 10,
12)

HELD: -
Prosecution failed to establish guilt beyond a
reasonable doubt. Testimony of witnesses
wholly
untrustworthy
and
unbelievable.
Testimonies of other witnesses, even if taken on
their face value, fall short of the requirement of
proof of the charge beyond all reasonable
doubt. Conviction and sentence passed by trial
court set aside. Appellant's husband acquitted of
all charges.(Paras: 20, 28, 29,30)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. C.S.D. Swamy Vs St., (1960) 1 SCR 461

2. Harishchandra Krishna Gadkar Vs St. of
Maha., 1994 SCC (L&S) 1055

3. Fakhruddin Vs The St. of M.P., 1966 SCC
OnLine SC 55

4. Paramjeet Singh Vs St. of Uttarakhand, AIR
2011 SC 200
3 All. Smt. Madhu Tandon Vs. State of U.P.
1277
5. Pandurang s/o Ramji Khade Vs St. of Maha.,
1980 SCC OnLine Bom 201

(Delivered by Hon'ble Shamim Ahmed, J.)

1. List has been revised and the case
was taken up in the revised call.

2. Heard learned Counsel for the
appellant, Shri Shiv. P. Shukla, learned
Counsel for C.B.I. and Shri Ashok Kumar
Singh, learned A.G.A-I for the Staterespondents.

3. The instant Criminal Appeal under
Section 9 of the Criminal Law Amendment
Act read with Section 374 Cr.P.C. has been
filed on behalf of the appellant, namely,
Smt. Madhu Tandon against the judgment
and order dated 10.02.1998 passed by
Special Judge (Anti Corruption), U.P
(West) Lucknow, in Case No.1/81 arising
out of R.C. No.19/1979, convicting the
husband of the appellant under Section 409
I.P.C. and Section 5(2) readwith Section
5(1)(c) of the Prevention of Corruption Act,
1947 and sentencing him to undergo two
years rigorous imprisonment and a fine of
Rs.18,000/- on each count, the sentences of
imprisonment directed to run concurrently
and in default of payment of fine to
undergo further imprisonment of six
months.

4. The prosecution case in brief is that
P.K. Tandon i.e. accused (now deceased),
who was the husband of the appellant, was
appointed as a Branch Managar at Koraw
Branch Allahabad in the U.C.O Bank
formerly known as United Commercial
Bank and one-Shri T.N. Bhalla served as
the chief accountant in the same branch. On
October 10, 1979, at 11:45 AM, a case was
registered against P.K. Tandon and T.S.
Bhalla as R.C. No. 19/79 under sections
120B , 419, 420, 409, 467 I.P.C. and under
Section 5(2) read with Section 5(1)(c) of
the Prevention of Corruption Act, 1947.
During the period 1976-77, the accused
obtained a blank cheque book of Shri
Kamala Shankar Pandey, the proprietor of
M/s Agro Service Center situated in
Allahabad (now Prayagaraj) under false
pretext.
The
chequebook,
numbered
775830 to 775850, was subsequently used
by the accused to forge the signature of the
P.W.-5
on
eight
cheques
between
September 9, 1996, and February 17, 1997,
the accused had fraudulently withdrawn a
total sum of Rs.43,000/- using these forged
cheques.

Additionally, it was alleged that
the complainant had entrusted the accused
with a sum of money to be deposited into a
savings account. The accused, identified as
P.K. Tandon, provided pay-in-slips with his
signature acknowledging receipt of the
money on various dates: November 29,
1976 (Rs.19,000/-), December 9, 1976
(Rs.7,000/-), January 13, 1977 (Rs.5,000/-),
and January 21, 1977 (Rs.5,000/-), totaling
Rs.36,000/-. However, the accused did not
deposit the said amount into the bank
account of the complainant, resulting in a
loss to the bank.

Upon investigation, the case was
handed over to C.B.I Inspector Shri K.P.
Singh, who collected evidence indicating
the guilt of the only accused, P.K. Tandonaccused, husband of the appellant for
misappropriating the aforementioned sum
of Rs.36,000/- and failing to deposit it into
the
bank
account
as
instructed.
Consequently, a charge-sheet was filed
against the accused under Section 409 of
the Indian Penal Code (IPC) and under
Section 5(2) read with Section 5(1)(c) of
the Prevention of Corruption Act, 1947.
1278 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Charges were framed by the trial
court under Sections 409 I.P.C. and under
Section 5(2) r/w 5(1)(c) of Prevention of
Corruption Act, 1947. The accused persons
denied charges and sought trial.

6. In order to substantiate their case,
the
prosecution
examined
witnesses
Rajeshwar Amolak Ramshani, Assistant
General manager UCO Bank, D.R Kapoor,
Director of UCO Bank, N.P Khare, Officer
UCO Bank, T.N Bhalla Chief accountant
UCO Bank, Kamala shankar pandey i.e.
P.W.5 proprietor M/s Agro Service Center,
Koraw, Amar singh Deputy G.E.Q.D, State
Handwriting examiner, K.P Singh Inspector
C.B.I Supervising officer.

7. Learned Counsel for the appellant
submitted that the prosecution banked upon
three types of evidences to substantiate the
charges leveled against the accused. The
first evidence consists of direct testimony
of witness who has entrusted the amount to
the accused, who had issued pay-in-slip
related to deposit of money. The second
type of evidence consists of those witnesses
working in the same department who
acknowledged the signature and writing of
the accused. The last type of evidence is the
evidence of Expert who compared the
handwriting of accused inasmuch as he was
provided with the specimen signatures and
handwriting of the accused as well as
signatures in disputed pay-in-slip, and who
had given his opinion that the signatures in
the disputed pay-in-slip were of accused.

8.

P.W-1
Rajeshwar
Amolak
Ramshani, who was an Assistant General
Manager at UCO Bank in 1981 stated that
he had granted permission to run a case
against the accused after obtaining the
necessary authorization from the Board of
Directors of UCO Bank. Furthermore, he
mentioned that the accused was served with
a joining letter bearing signature of B.D
Desai, the Deputy General Manager of
UCO Bank. He further stated that the
accused was an employee of UCO Bank at
the Koraw branch, but did not made any
allegation
regarding
embezzlement
of
money from the bank by the accused, thus,
statement of P.W.-1 also did not support the
prosecution case so far it relates to the
allegation that the accused is involved in
embezzlement of fund.

9. P.W. 2 stated that he has given
Power of Attorney to PW 1 to proceed the
case against the accused. Thus, it is clear
from his statement that he had not
mentioned anything in favour of the
prosecution case and he just gave his
permission to proceed for prosecution of
the accused in accordance with law.

10. P.W-3 N.P. Khare testified that
they took charge of the Koraw branch from
the accused P.K Tandon and claimed
familiarity with the writing and signatures
of the accused because he had seen the
accused writing and putting signatures on
relevant papers and further stated that one
current account was opened in the name of
the P.W-5 on 13.02.976 and signature of the
accused were put on the account opening
form, and also stated that on the name of
the
P.W-5
accepted
Term
loan
of
Rs.91800/- and Cash Credit of Rs.62,750/-
on 14.06.1976. He further stated that he
was
familiar
with
the
writing
and
signatures of the accused and had seen the
writing style of the accused. Statement of
PW-3 seems ambiguous because he had
seen the accused handwriting and putting
signatures while he was taking the charge
from the accused. The claim of P.W-3 being
familiar with the handwriting of the
accused is dubious as he testified this fact
3 All. Smt. Madhu Tandon Vs. State of U.P.
1279
after 10 years. It might be the case that
P.W-3 has given statement against the
accused under influence of the bank. The
trial courts while examining witness to
verify handwriting the trial court must
adopt due care and caution. No common
man
could
identify
signature
and
handwriting of any person which had been
signed or written 10 years ago. Therefore,
the statements of PW-3 are not wholly
reliable as he appears to be an interested
witness. It is further observed that the
accused in her statement before the trial
court clearly stated that he had not worked
with P.W.-3 but he was only present when
the accused was joining in the U.C.O.
Bank, thus, it is highly improbable that a
person who has seen the accused writing or
putting signature once that too ten years
back could remember the writing style of
the accused.

11. P.W.-4, namely-T.N. Bhalla, who
was the Chief Accountant in the U.C.O
Bank stated that on the date of issue of
alleged pay-in-slips he was on leave, thus,
he stated that he was not present on the date
of issue of alleged pay-in-slips, which
clearly shows that the P.W.-4 has not fully
supported the prosecution and has only
stated that he was well aware with the
handwriting and signature of the accused,
which is the subject matter of verification
before coming to a conclusion that the
signatures which are in dispute were put by
the accused. So far as the statements of
P.W-4 are concerned, it is pertinent to note
here that initially P.W.-4 was also accused
in the present case and later on under the
influence of the Bank and its Officials
turned into a prosecution witness only with
the intention to save himself from the case
and falsely implicate the accused in the
present case, thus, it appears that P.W.-4 is
also not a reliable witness.

12. P.W-5 Kamala Shankar Pandey,
was not treated as a reliable witness
because he had made false and frivolous
complaint against the accused for forging
signature on several cheques which were
obtained from him under false pretext and
used those cheques to misappropriate
money from his bank account but this
complaint
appears
to
be
false
and
fabricated as there is high probability that
P.W.-5 has given false statements against
accused for settlement of his Bank loan.
Further, this allegation leveled by the P.W.5
against
the
accused
regarding
misappropriation of cheques which were
obtained by the accused on false pretext
and later they were misused by him, was
dropped by the Investigating Officer at the
initial stage of his investigation.

13. Learned Counsel for the appellant
further submitted that in respect of
allegation regarding pay-in-slips, the P.W.-5
further stated that he used to visit the bank
to deposit money of which he used to keep
record in his personal diary but at the time
of investigation he could not produce his
personal diary and further stated that he did
not remember the exact dates on which the
pay-in-slips were issued to him and
regarding veracity of those pay-in-slips he
stated that the pay-in-slips which were
issued against the money which was
allegedly deposited by him in the bank
were undated, the only thing which goes
against the accused is that the pay-in-slips
bear the signature of the accused even
though, the signatures which were put on
the pay-in-slips are in dispute, thus, the
P.W.-5 himself has failed to establish his
case beyond reasonable doubt and the
whole prosecution story is based on
surmises and conjunctures.

14. P.W.-6 -Amar singh Deputy
G.E.Q.D, State Handwriting Examiner has
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that the signatures of the accused
which were produced before him for
examination do tally to some extent but so
far as the science of examination of
handwriting is concerned he stated that the
science is not perfect to give its full proof
finding that both the signatures are same,
thus, he stated that there might be some
shortcomings in his finding regarding
veracity of his report given in respect of
signature examination. Thus, it is evident
from his statements that the finding given
by the expert examiner is not full proof.
The value of the expert evidence depends
largely on the cogency of the reasons on
which it is based. In general it cannot be a
basis
for
conviction
unless
it
is
corroborated by other evidence. The hazard
of accepting the opinion of any expert,
handwriting expert or any other kind of
expert, is not because experts, in general,
are unreliable witness, the quality of
credibility or incredibility being one which
an expert shares with all other witnesses,
but because all human judgment is fallible
and an expert may go wrong because of
some defect of observation, some error of
premises or honest mistake of conclusion.
The more developed and the more perfect a
science, the less chance of an incorrect
opinion and the converse if the science is
less developed and imperfect the science of
identification of finger print has a ten year
perfection and the risk of an incorrect
opinion is practically non-existent. On the
other hand, the science of identification of
handwriting is not merely so perfect and
the risk is, therefore, higher. An expert
deposes not decides, his duty to furnish the
court with the necessary scientific criteria
for testing the accuracy of his conclusion,
so as to enable the court to form its own
independent judgment by the application of
these criteria to the facts proved in
evidence, thus, the statement given by the
P.W.-6 is also not wholly reliable to
prosecute the accused in the present case.

15. P.W-7 -Ram Chandra Pandey is an
independent witness, who was also the
guarantor of P.W.-5 in the bank loan
amount and he used to visit the bank
regularly with P.W.5 and they both know
each other well, thus, it is clear that P.W.-7
is an interested witness, who gave his
statements under the influence of the
complainant only with the intention to help
the complainant to establish its case against
the accused and also help him to get some
liberty in respect of loan amount, which
was taken by the complainant from the said
Bank. Further, there is nothing on record to
demonstrate this fact that P.W.-7 used to
visit the bank regularly with P.W.-5, which
also create doubt in the mind of this Court.

16. P.W.-8 K.P. Singh, Inspector
C.B.I. Supervising Officer, stated that after
due consideration of the material available
on record and after thorough investigation,
he has submitted the chargesheet against
the accused. He further stated that in
respect of the allegations made by P.W.-5
on which the Bank initiated prosecution
against the accused, P.W.-5 did not make
any complaint to concerned authorities and
he further stated that the alleged pay-inslips were undated. Thus, his findings are
also based on imaginary and concocted
evidence which came up during the course
of investigation.

17. Learned Counsel for the appellant
after concluding his arguments on the
factual and legal aspect finally submitted
that the accused (now deceased) who was
the husband of the appellant had been
falsely implicated in the present case by the
officials of the Bank and P.W.5, namelyKamala Shankar Pandey in collusion with
3 All. Smt. Madhu Tandon Vs. State of U.P.
1281
their other associates only with the
intention to get some financial aid from the
Bank as the P.W.-5 took some loan amount
from the concerned Bank. The investigating
agencies did not appreciate the factual
aspect of the case and has conducted the
investigation in a hasty manner and filed
the chargesheet against the accused. He
further submitted that the trial court also
did not go through the legal aspect of the
case and has passed the order of conviction
in a cursory manner, thus, the present
appeal may be allowed and the order of
conviction passed by the trial court may be
set aside and reversed.

18. Per contra, learned A.G.A-I and
learned Counsel for C.B.I. have submitted
that the charges have rightly been framed
by the trial court against the accused i.e. the
husband of the present appellant and no
interference is called for by this Court as
the prosecution has proved its case beyond
reasonable doubt and the trial court has
rightly convicted and sentenced the accused
in aforesaid case, thus, this appeal being
devoid of merit and substance is liable to
be dismissed.

19. I have considered the submissions
made by learned counsel for the parties and
gone through the record.

20. The submission of the learned
counsel for the appellant is that the
conviction of the accused has been held on
suspicion. The suspicion, however, grave
cannot take place of proof and the
prosecution cannot afford to rest its case in
the realm of "may be" true but has to
upgrade it in the domain of "must be" true
in order to steer clear of any possible
surmises or conjectures. Thus, on the
material on record when judged on the
touch stone of legal principles adumbrated
hereinabove, leave no manner of doubt that
the prosecution, in the instant case, has
failed to prove its case beyond reasonable
doubt and the trial court also did not apply
its judicial mind before passing the order of
conviction and sentence, the accused, who
made an error in issuing pay-in-slips
without date for which he has no
satisfactory explanation and to that extent
he has committed grave irregularity. But,
only on that point, it cannot be said that he
committed the offences for which he was
charged in the aforesaid case.

21. It is observed here that Section
409 I.P.C. deals with criminal breach of
trust by public servant or by banker,
merchant or agent. Section 405 defines
criminal breach of trust. The offence like
the offence of criminal misappropriation is
characterized by an actual fraudulent
appropriation of property. There is not
originally wrongful taking or moving as in
the case of theft but the offence consists in
wrongful
appropriation
of
property,
consequent upon a possession which is
lawful. The offence is distinguishable from
criminal misappropriation because subject
of it is not the property which by some
casual act or otherwise, but without
criminal means, comes into the offender's
possession: but the property which is
entrusted to the offender by the owner or by
others lawful authority and which the
offender holds subject to some duty or
obligation to apply it according to the trust.

22. Further, Section 5(1)(c) and
Section 5(2) of Prevention of Corruption
Act, 1947 are quoted hereunder:-

"5. Criminal misconduct in
discharge of official duty - (1) A public
servant is said to commit the offence of
criminal misconduct: -
1282 INDIAN LAW REPORTS ALLAHABAD SERIES

(c)
if
he
dishonestly
or
fraudulently misappropriates or otherwise
converts for his own use any property
entrusted to him or under his control as a
public servant or allows any other person
so to do, or

5.
Criminal
misconduct
in
discharge of official duty -

(2) Any public servant, who
commits criminal misconduct shall be
punishable with imprisonment for a term
which shall not be less than one year but
which may extend to seven years and shall
also be liable to fine."

So far as Section 5 of the
Prevention of Corruption Act, 1947 is
concerned, Hon'ble the Apex Court in the
case of C.S.D. Swamy v. State [(1960) 1
SCR 461] has held that that sub-section (3)
of Section 5 of the Prevention of Corruption
Act, 1947, does not create a new offence
but only lays down a rule of evidence which
empowers the Court to presume the guilt of
the accused in certain circumstances,
contrary to the well known principle of
Criminal law that the burden of proof is
always on the prosecution and never shifts
on to the accused person. In Swamy case,
there were charges for the offence of
criminal misconduct under two heads,
clause (a) and clause (d). The trial court
held the accused person in that case not
guilty of the offence under clause (a) but
guilty of the offence under clause (d) by
invoking the Rule of presumption laid down
in sub-section (3) of Section 5. The
distinction between that case and the case
under our consideration is this : in Swamy
case, there were two charges either of
which could be found on the rule of
presumption laid down in sub-section (3);
but in our case there is only one charge of
criminal misconduct of which the appellant
has been acquitted; therefore, there is no
other charge which can be found on the
rule of presumption referred to in subsection (3). This is the difficulty with which
the respondent is faced in the present case.
It appears to us that the learned Special
Judge and the High Court proceeded
wrongly on the footing as though subsection (2) or sub-section (3) of Section 5
of the Act creates an offence. The offence
which is punished under sub-section (2) or
can be founded on the rule of presumption
laid down in sub-section (3) must be the
offence of criminal misconduct of one or
more of the categories mentioned in clauses
(a) to (d) of sub-section (1). In the case
before us the only category which was
alleged against the appellant was that of
category
(c),
namely,
dishonest
or
fraudulent misappropriation, etc. That
charge having failed, there was no other
charge which could be founded on the rule
of presumption laid down in sub-section
(3).

23. Further, the Hon'ble Apex Court
in the case of Harishchandra Krishna
Gadkar vs. State of Maharashtra reported
in 1994 SCC (L&S) 1055 has been pleased
to observe as under:-

"7.We are unable to agree with
the learned counsel. Apart from the
evidence of handwriting expert, there is
evidence
of
PW
6
the
Assistant
Commissioner
of
Income
Tax
(Mr
Deshmukh)
who
deposed
that
the
alterations were made by A-3. According to
him, the payment of Rs 20,000 has been
made by cheque received from the Office of
the Income Tax Commissioner and he
refused to sign the receipt as it was in the
name of B.P. & Co. Thereupon, accused 3
3 All. Smt. Madhu Tandon Vs. State of U.P.
1283
scored off the words "B.P. & Co." on the
receipt and wrote the words "Assistant
Commissioner of Income Tax" and thereby
made
the
alterations.
In
order
to
substantiate this aspect, certain specimen
signatures were also secured and those
were sent to handwriting expert and the
evidence
establishes
that
handwriting
tallies with that of accused 3.

8.But the next question is whether
that alterations could, even otherwise, in
any manner, establish the guilt of the
appellant. The High Court having accepted
the evidence of handwriting expert as well
as the evidence of PW 6, reached the
conclusion that the part played by accused
3 shows that he must have been a member
of the conspiracy. Having given such a
finding,
again,
the
High
Court
categorically held thus:"It is impossible on
this evidence to hold that accused 3 must
have enriched himself with this amount or a
large part thereof". Having made this
observation
the
High
Court
also
commented that police investigation came
at a much later stage and if proper
investigation had been done, the truth
might have come out."

24. Further, the Hon'ble Apex Court
in the case of Fakhruddin vs. The State of
Madhya Pradesh reported in 1966 SCC
OnLine SC 55 has been pleased to observe
paragraph No.11, which is reproduced
hereunder:-

"11. Both under S. 45 and 5. 47
the evidence is an opinion, in the former by
a scientific comparison and in the latter on
the basis of familiarity resulting from
frequent observations and experience, In
either case the Court must satisfy itself by
such means as are open that the opinion
may be acted upon. One such means open
to the Court is to apply its own observation
to the admitted or proved writings and to
compare them with the disputed one, not to
becorof v an handwriting expert but to
verify the premises of the expert in the one
case and to appraise the value of the
opinion in the other case. This comparison
depends
on
an
analysis
of
the
characteristics in the admitted or proved
writings and the finding of the same
characteristics in large measure in the
disputed writing. In this way the opinion of
the deponent whether expert or other is
subjected to scrutiny and although relevant
to start with becomes probative. Where an
expert's opinion is given, the Court must
see for itself and with the assistance of the
expert come to its own conclusion whether
it can safely be held that the two writings
are by the same person. This is not to say
that the Court must play the role of an
expert but to say that the Court may accept
the fact proved only when it has satisfied
itself on its own observation that it is safe
to accept the, opinion whether of the expert
or other witness."

25. Similarly in Paramjeet Singh v.
State of Uttarakhand; AIR 2011 SC 200
also Hon'ble Apex Court was pleased to
observe as under:-

"When the witness was declared
hostile at the instance of the public
prosecutor and he was allowed to cross
examine
the
witness
furnishes
no
justification for rejecting embloc the
evidence of the witness. However, the court
has to be very careful, as prima facie, a
witness who makes different statements at
different times, has no regard for the truth.
His evidence has to be read and considered
as a whole with a view to find out whether
any weight should be attached to it. The
court should be slow to act on the
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of such a witness; normally, it
should look for corroboration to his
testimony".

26. Further the Bombay High Court in
the case of Pandurang s/o Ramji Khade
vs. State of Maharashtra reported in 1980
SCC OnLine Bom 201 has observe
paragraph No.24 and 25, which are
reproduced hereunder:-

"24. From this angle, it would be
advantageous to refer to the decision of the
Supreme Court reported in (1976) 4 SCC
233: A.I.R. 1977 S.C. 1706 (Rabindra
Kumar Dev v. State of Orissa). In the said
case Fazal Ali, J., has laid down certain
cardinal
principles
of
criminal
jurisprudence viz;

1) that the onus lies affirmatively
on the prosecution to prove its case beyond
reasonable doubt and I cannot derive any
benifit from weakness or falsity of the
defence version while proving its case;

2) that in a criminal trial the
accused must be presumed to be innocent
unless he is proved to be guilty; and

3)
that
the
onus
of
the
prosecution never shifts.

25. He further observed that;

"It is sufficient if the accused is
able to prove his case by the standard of
preponderance
of
probabilities
as
envisaged by section 5 of the Evidence Act
as a result of which he succeeds not
because he proves his case to the hilt but
because probability of the version given by
him throws doubt on the prosecution case
and, therefore, the prosecution cannot be
said to have established the charge beyond
reasonable doubt. In other words, the mode
of proof, by standard of benefit of doubt, is
not applicable to the accused, where he is
called upon to prove his case or to prove
the exceptions of the Penal Code, 1860 on
which he seeks to rely. It is sufficient for the
defence to give a version which competes in
probability with the prosecution version,
for that would be sufficient to throw
suspicion on the prosecution case entailing
its rejection by the Court."

27. It feels pain to observe that in our
present system of trial despite having
sufficient power to the judge to ask
questions to the witnesses in order to find
out truth, most of them do not ask questions
to the witnesses to shift the grain from the
chaff. Practice of leaving witnesses to the
Advocates, when a witness becomes hostile
or is an interested witness, is not uncommon in the trial Courts. Time and again
Hon'ble Apex Court has reminded that a
Judge does not preside over a criminal trial
merely to see that no innocent man is
punished, but a Judge also presides to see
that a guilty man does not escape. Both are
public duties, which the Judge has to
perform. Therefore, the trial Court must
shed their inertia and must intervene in all
those cases where intervention is necessary
for the ends of justice.

28. The loose ends and the suspicion
raised by the learned counsel for the
appellants cannot be brushed aside lightly.
On a comprehensive re-appreciation of the
evidence and material placed on record,
this Court is of the firm opinion that the
testimony of the witnesses is wholly
untrustworthy and unbelievable. In criminal
prosecution the standard of proof required
for
conviction
is
proof
beyond
all
reasonable doubts. The testimonies of other
3 All. Ram Sanehi & Anr. Vs. State of U.P.
1285
witnesses, even if taken on their face value,
fall short of the requirement of proof of the
charge beyond all reasonable doubt.

29. Consequently, contrary view taken
by the trial Court is against the weight of
the evidence on record and the exposition
of law attested by the decisions of Hon'ble
Supreme Court cited herein above. Thus,
on perusal of material placed on record and
discussions and observations made above,
it appears that the prosecution has failed to
establish its case beyond reasonable doubt
and the learned trial court has also not
applied its mind to appreciate and consider
the prosecution witnesses placed by the
prosecution in order to substantiate its case.

30. Thus, in view of the aforesaid
discussions/observations and the judgments
rendered by the Hon'ble Apex Court cited
hereinabove, the appeal is allowed. the
judgment and order dated 10.02.1998
passed by Special Judge (Anti Corruption),
U.P (West) Lucknow, in Case No.1/81
arising out of R.C. No.19/1979, convicting
the accused (now deceased) under Section
409 I.P.C. and Section 5(2) readwith
Section 5(1)(c) of the Prevention of
Corruption Act, 1947 and sentencing him to
undergo two years rigorous imprisonment
and a fine of Rs.18,000/- on each count, the
sentences of imprisonment directed to run
concurrently and in default of payment of
fine to undergo further imprisonment of six
months is set aside and reversed. The
accused, namely, Late P.K. Tondon, who
was the husband of the present appellant, is
acquitted of charges under Section 409
I.P.C. and Section 5(2) readwith Section
5(1)(c) of the Prevention of Corruption Act,
1947 and sureties, if any, are also
discharged.

31. Let record of trial Court be sent
back to Court concerned along with copy of
judgment and order for information.
----------
(2024) 3 ILRA 1285
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 134 of 2004

Ram Sanehi & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
M.P. Yadav, Ajay Madhavan

Counsel for the Respondent:
Govt. Advocate

(A) Criminal Law - Appeal against order of
forfeiture of Surety Bond - Code of
Criminal Procedure, 1973 - Section 446 -
Procedure where bond has been forfeited
- Sureties liable for penalty if accused fails
to appear - Court has discretion to reduce
penalty under Section 446 Cr.P.C.. (Para
9,10,11)

Appellants were sureties for accused - Accused
jumped bail - leading to forfeiture of surety
bond - Appellants challenged order of forfeiture
and imposition of penalty -Accused surrendered
before court - Discretion of court to remit
penalty. (Para 4-5,10-11)

HELD: - Penalty amount reduced to the tune of
Rs. 4000/- in view of surrender of accused and
deposit of part amount by sureties. Appellants
directed to deposit reduced penalty within one
month.(Para 11-12)

Appeal partly allowed. (E-7)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri M.P.Yadav, learned
counsel for the appellants and Sri Ashok
Kumar Srivastava, learned A.G.A. for the