# BARJURE KAIKHOSROO MAARFATIA v. STATE OF MAHARASHTRA

- **Citation:** [1978] 2 S.C.R. 479
- **Court:** Supreme Court of India
- **Decided:** 1977-12-16
- **Case number:** Criminal Appeal No. 262 of 1975
- **Bench:** P. K. Goswami, V. D. Tulzapurkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/barjure-kaikhosroo-maarfatia-v-state-of-maharashtra-7404
- **Pages:** 20

## Headnote

479
Imlian Penal Code Sec. 408, 461, 471 and 477A-Forgery-Crl. Procedure
Code 1973-Powers of High Court to interfere lVith order of acquittal.
The appellant was prosecuted under section 471 read with section 461 and
section 408 and 477 A of the I.P.C. According to the prosecution there is <r
Rosary Cooperative Housing Society Limited, in Bombay.
It owns a building
having .48 fiats.
Doongaji was elected as the Chairman of the Managing Committee of the Society.
l\tfr. K. N. Singh was working as the figure-head Secr~
tary. of the Society. The Society had a Bank Account which was
operated
jointly by Doongaji and K. N. Singh.
One B. A. Sagar was working as
the
estate ·Manager of the Society and he retired due to old age.
The . appellant.
\Vho was working as Accounts Clerk in
Sir Dorabji Tata Trust was
appointed by Doongaji as an Honorary Accountant of the Society.
A bill for
Rs. 7.50 was submitted by Mis A. G. R. Patni & Co. The bill was forged by
adding the figure 160 before the figure 7 inflating the amount to Rs. 1607.50
in figures without altering· the amount.in words. The prosecution case further
was that an inflated voucher /receipt was also brought
into
existence. The
prosecution case further \vas that for the sake of convenience and facility ot
work a practice was followed in the Society that at a ~ime about 8 to 10 blank
ch.eques used to be signed by Doongaji and Singh and these used to
remain
with the appellant who used one of such cheques for making purported payment of the inflated bilf on the strength of the inflated
voucher/receipt but
converted to his own use the proceeds thereof. The prosecution case further
\vas that 'the appellant wilfully and with an intent to defraud falsified the books
of account of 1he Society, namely, the cnsh book by makng therein
a
false
debit entry.
Tke defence of the appellant was that there was no practice to keep in his
custody the cheque book of the Society containing blank cheques
signed
by
Dodngaji and K. N. Singh. According to him the amount of Rs. 1607.50 was
paid in cash by hi'm to Sagar P.W. 2 on the instruction from Doongaji.
The Trial Court came to the conclusion that the prosecution had failed to
establish any of the charges against the appe11ant beyond reasonable
doubt.
The Trial Court observed that though there was a ring
of~ plausibility and
possibility in the case of prosecution in respect of the charges levelled against
the appe1Jant conviction could not be based merely on possibilities unless the
charges were established against an accused beyond reasonable doubt.
Jn appeal, the High Court reversed the a_cquittal recorded in favour of the
<lCcused and convicted him of all the charges that were levelled against him.
The High Court. however. imposed only one day's imprisonntent and a fine
of Rs. 20001-.
The· appellant contended :
( 1) The High Co~rt had erred in in~erfering \vi th the acquittal r~cord
ed by the Trial Couft. The High Court
before
reversing
the
~cqu1ttal should have given cogent reasons for rejecting the reasoning of the Trial Court. Reliance was placed on the decision
of
this Court in Raiendra Prasad v. State of Bihiir.
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(2) The entire prosecution case was based on the theory that
about
H
8 to 10 blank cheques a~ a time signed by Doongaji and
K.
N.
Singh used to be kept in the custody of the appellant. The Trial
Court rightly rejected that tbeory.
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480
SUPREME COURT REPORTS
[J 978] 2 S.C.R.
(3) The Trial Court rightly held that the reasons which Sagar
mentioned why he handed over the bill of Rs. 7.50 to
the
appellall(,
were unacceptable.
The Counsel for the respondent contended :
(I) The reasons given by the Trial Court while recording the acquittal
were clearly found to be erroneous by the High Court and High
Court had given proper reasons for reversing such acquittal.
(2) The High Court was right in coming to the conclusion
that the
prosecution had e~tablished its case against the appel1ant beyond
reasonable doubt and thereforei rightly

## Text

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BARJURE KAIKHOSROO MAARFATIA
v.
STATE OF MAHARASHTRA
December 16, 1977
(P. K. GOSWAMI AND V. D. TULZAPURKAR, JJ.J
479
Imlian Penal Code Sec. 408, 461, 471 and 477A-Forgery-Crl. Procedure
Code 1973-Powers of High Court to interfere lVith order of acquittal.
The appellant was prosecuted under section 471 read with section 461 and
section 408 and 477 A of the I.P.C. According to the prosecution there is <r
Rosary Cooperative Housing Society Limited, in Bombay.
It owns a building
having .48 fiats.
Doongaji was elected as the Chairman of the Managing Committee of the Society.
l\tfr. K. N. Singh was working as the figure-head Secr~
tary. of the Society. The Society had a Bank Account which was
operated
jointly by Doongaji and K. N. Singh.
One B. A. Sagar was working as
the
estate ·Manager of the Society and he retired due to old age.
The . appellant.
\Vho was working as Accounts Clerk in
Sir Dorabji Tata Trust was
appointed by Doongaji as an Honorary Accountant of the Society.
A bill for
Rs. 7.50 was submitted by Mis A. G. R. Patni & Co. The bill was forged by
adding the figure 160 before the figure 7 inflating the amount to Rs. 1607.50
in figures without altering· the amount.in words. The prosecution case further
was that an inflated voucher /receipt was also brought
into
existence. The
prosecution case further \vas that for the sake of convenience and facility ot
work a practice was followed in the Society that at a ~ime about 8 to 10 blank
ch.eques used to be signed by Doongaji and Singh and these used to
remain
with the appellant who used one of such cheques for making purported payment of the inflated bilf on the strength of the inflated
voucher/receipt but
converted to his own use the proceeds thereof. The prosecution case further
\vas that 'the appellant wilfully and with an intent to defraud falsified the books
of account of 1he Society, namely, the cnsh book by makng therein
a
false
debit entry.
Tke defence of the appellant was that there was no practice to keep in his
custody the cheque book of the Society containing blank cheques
signed
by
Dodngaji and K. N. Singh. According to him the amount of Rs. 1607.50 was
paid in cash by hi'm to Sagar P.W. 2 on the instruction from Doongaji.
The Trial Court came to the conclusion that the prosecution had failed to
establish any of the charges against the appe11ant beyond reasonable
doubt.
The Trial Court observed that though there was a ring
of~ plausibility and
possibility in the case of prosecution in respect of the charges levelled against
the appe1Jant conviction could not be based merely on possibilities unless the
charges were established against an accused beyond reasonable doubt.
Jn appeal, the High Court reversed the a_cquittal recorded in favour of the
<lCcused and convicted him of all the charges that were levelled against him.
The High Court. however. imposed only one day's imprisonntent and a fine
of Rs. 20001-.
The· appellant contended :
( 1) The High Co~rt had erred in in~erfering \vi th the acquittal r~cord
ed by the Trial Couft. The High Court
before
reversing
the
~cqu1ttal should have given cogent reasons for rejecting the reasoning of the Trial Court. Reliance was placed on the decision
of
this Court in Raiendra Prasad v. State of Bihiir.
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(2) The entire prosecution case was based on the theory that
about
H
8 to 10 blank cheques a~ a time signed by Doongaji and
K.
N.
Singh used to be kept in the custody of the appellant. The Trial
Court rightly rejected that tbeory.
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B
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SUPREME COURT REPORTS
[J 978] 2 S.C.R.
(3) The Trial Court rightly held that the reasons which Sagar
mentioned why he handed over the bill of Rs. 7.50 to
the
appellall(,
were unacceptable.
The Counsel for the respondent contended :
(I) The reasons given by the Trial Court while recording the acquittal
were clearly found to be erroneous by the High Court and High
Court had given proper reasons for reversing such acquittal.
(2) The High Court was right in coming to the conclusion
that the
prosecution had e~tablished its case against the appel1ant beyond
reasonable doubt and thereforei rightly interfered with the order
of acquittal passed by the Trial Coμrt.
Disn1issing the appeal :
HEID : 1. Rajendra Prasad's decision related to a case dealing with direct
testimony of witnesses whereas the instant case could not be treated as a case
where direct testimony of witnesses was required to be appreciated.
[487FG]
Rajendra Prasad v. State of Bihar, (1977) 2 SCC 205; distinguished.
Vasudeo Kulkarni v. Surya Kant Bhatt and Anr., (1977)
2 SCC 208;
1/
reiterated.
The High Court rightly convicted the_ petitioner for the following reasons :
D
(i) It was the duty of the appellant to write and maintain books of
E
·(ii)
(iii)
(iv)
tv)
(vi)
accounts of the Society,
[488E]
It was not disputed that Patni & Co. had submitted the
bill for
Rs. 7.50 and had received neither Rs. 1607.50 nor Rs. 7.50.
[488F]
Any one who came across the bill of Rs. 7.50 would have knowledge and reason to believe that the same was forged.
[488G]
'fhe voucher bore forged signature of Sagar and forged initials of
Doongaji whose evidence corroborated the
Handwriting
Expert's
opinion.
[489A]
There was a practice of both Doongaji and K. N. Singh
signing
the blank cheques and keeping them with the appellant.
[491A-B]
The oral evidence is corroborated by the docu·mentary evidence ...
[492E]
(vii) But for the fact that the blank cheques were· signed beforehand
F
there was no need to write
G
(viii)
"under verbal orders of Mr. RDD", in the counter foil
of the
cheque book.
[492G-H]
The Trial Court overlooked important asJ,>Cct of the case and therefore the High Court was justified in having a reappraisal of the
eviderice and coming to its own conclusions.
[495F-G]
(ix) There was ample evidence to prove that the appellant
had
misappropriated the proceeds ot the bearer cheques after· the same were
handed over to him by the peon Shivram Lad.
[496D, 498-BJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 262
of 1975.
Appeal by Special Leave from the Judgment and Order dated
the 30th September, 1974 of the Bombay High Court in Cr!. A.
ff No. 176 of 1974,
J. ·p, Mehta, B. R: Aggarwa/a aild P~ B.. Aggarwa/a for
the
Appellant.
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BARJURE v. MAHARASHTRA (Tulwpurkar, J.)
481
M. N. Phadke and M. N. Shroff for respondent.
The Judgment of the Court was delivered by
TULZAPURKAR, J. This appeal by special leave is directed against
the judgment and order of the Bombay High Court dated September
30, 1974, convicting the appellant-accused for offences under s. 471
read with s. 467, ss. 408 and 477A of the Indian Penal Code and
sentencing him to one day's imprisonment and a fine of Rs. 2,000/-
and in default to suffer rigorous in1prisonn1ent for six 1nonths under
s. 408 with no separate sentence for the offences under s. 471 read
with s. 467 and s. 477A l.P.C.
The prosecution case. against the appellant-accused may briefly be
'Stated thus : There is a Rosary Co-operative Housing Society Ltd.
in a suburb of Bombay, It owns a building having
48 fiats
qi'
which 23 fiats belong to the well-kn9wn Tata concerns. Sir Dorabji
Tata Trust holds 3 ·flats out of these 23 flats.
It appears that in
view of the large number of flats held by the Tatas they wanted to
have a representation on the managing committee Qf the society and
participate in its affairs.
One
R. D.
Doongaji (PW!)
was the
.General Secretary of Sir Dorabji Tata Trust apart from his being a
Legal Adviser to Talas in their Share Department;
on and from
November 6, 1964, he after being elected,
was
working as
a
Chairman of the Managing Committee of the Society.
One K. N.
Singh, Advocate (PWl2) was working as the figure-head Secret~y or
<the Society.
The Society had a Bank account with Maharashtra
State Co-operative Bank Ltd., which was operated jointly by Doongaji
(PW!) and K. N. Singh (P.W. 12).
One B. A. Sagar (PW2) was
working as the Estate Manager of the Society from April 1, 1967 and
·he retired due to old age with effect from December 31, 1969,
whereafter one Mathew Figradd (PW7) worked as Estate Manager.
As Estate Manager, Sagar's duties' were to collect the monthly com-
-pensation at the rate of Rs. 100/- from
each flat-holder of the
Society, to look after the maintenance of the- said building, to undertake the repairs after obtaining the oral sanction of the managing
committee and incur expenditure therefor either from the collection
of compensation or from his own pocket, to draw his own salary and
·the salary of the staff of the Society from such collections, and to
hand over the balance to the Honorary Accountant of the Society
together with a statement bf account and vouchers in respect of
~undry expenses incurred.
However, he was not allowed to spend
more than Rs. 100/- at a time for carrying out the repairs t'o
the
"building.
The appellant-accused, who was
working as
Accounts
•Clerk in Sir Dorabji Tata Trust, was appointed by Doongaji (PWl)
as an Honorary Accountant of the Society in May 1966 and he worked in that capacity for the Society till July 1, 1970 when his services
were dispensed with.
As an Honorary Accountant of the Society
his duties inter alia were to write and maintain the books of accounts
(Cash-Book, ledger, journal and the voucher file), to receive amounts
of compensation collected by the Estate Manager from the members
-Of the Society, to reimburse the Estate Manager by cheques for sundry
~xpenses which the latter may have incurred, to pay the municipal
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SUPREME COURT REPORTS
(1978] 2 S.C.R'.,
taxes and to make other payments of bills again by cheques only and
that too after verifying from the minute book that such
payments
had been sanctioned by the managing committee of the Society and
also to make payments by cheques only against the vouchers after
satisfying himself about the genuineness of the vouchers.
According
to the prosecution in the month of December . 1969 a proprietary
firm M/s A. G. R. Patni & Co. had carried out a small
job of
clearing a choked pipe line of the storage tank o( the Society and
had submitted its bill No. 49 dated December 14, 1969 for Rs. 7.50
(Exh. 5 Colly.). It was received by Sagar (PW2) and was ordinarily
required to be paid by him but it appears that since he was retiring
at the end of December, 1969, he did not disburse the amount to
Patni but handed it over to the appellant-accused.
According to the
prosecution this bill (Ext. 5 Colly.), when it was originally received
and was handed over by Sagar (PW2) to the aplJellant-accused was
for Rs. 7.50, the identical amount being mentioned both in figures
and words, but some time later it was interpolated by adding the
figure of "160f' before the figure "7"
inflating
the
amount
to
Rs. 1607.50 in figures without' altering the amount in
words;
in
other words, as altered the bill showed the amount as Rs. 1607.50 in
figures but rupees seven and fifty paise only in words.
Further, according
to the prosecution, another document purporting to be a
typed
unstamped
voucher-cum-receipt dated 3-4-1970 for
Rs.
1607.50 (Ext. 5 colly.) connected
with and related to
aforesaid
interpolated and inflatea bill purporting to bear the
signature of
B. A. Sagar, Estate Manager (PW2) and the
initials
of
R. D.
Doongaji, the Chairman of the Managing Committee (P.W. l), came
into existence.
The prosecution was unable to say who had actually
jnterpolated and inflated the bill No. 49 (Ext. 5 colly.) as also who
had brought into existence the aforesaid
voucher/receipt
(Ex. 5
colly.) on which forged signature of Sagar and forged
initials df
Doongaji appeared.
But the prosecution case was that the appellantaccused fraudulently or dishonestly used as genuine the said bill and
the said typed voucher/receipt knowing or having reason to believe
that these documents were forged for the purpose of issuing a bearer
cheque for the said inflated amount and misappropriating the same.
The prosecution story was that for the sake of convenience and facility of work a practice was followed in the Society that at a time
about 8 to 10 blank cheques used to be signed by Doongaji (PWl)
first and then by K. N. Singh (PW12) and the cheque-book containing such signed blank cheques used to remain in the custody of the
appellant-accused and whenever payment was required to be made by
cheque the appellant accused used to write the body of the cheque in
his own hand and make the payment by issuing the same; that as
regards bill No. 49 of Patni & Co., ffie appellant-accused in his capacity as Honorary Accountant on the basi's of inflated bill as well as
the forged voucher/receipt (Ex. 5 colly.) made use of one of such
l;>lank cheques signed by Doongaji and Singh by issuing a bearer
cheque No. 377137 dated 3-4-1970 for Rs. 1607.50 in favour of
Shivram A. Lad (PW8), Peon in Dorabji 1Tata Trust; that Lad
withdrew the amount from the Society's Bank at the instance of the
appellant-accused and handed it over to him, which the appellant-
)
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'
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•
BARJURE v. MAHARASHTRA (Tulzapurkar, /,)
483
accused dishonestly misappropriated,
The prosecution case further was
that in connection with the above,
the
appellant-accused
willfully
and with intent to defraud, falsified the books of accounts of the
Society, namely, the cash-book by making therein a false debit entry
of Rs, 1607.50.
Thus, according to the prosecution, the appellantaccused on or about Apnl 3, 1970 dishonestly used as genuine two
forged documents, namely, the bill No. 49 dated December 14, 1969
as well as the voucher/receipt dated April 3, 1970, knowing or having
reason to believe them to be forged at the time of such user that he
committed criminal
breach of trust in respect of the
sum of Rs.
1607.50 and also falsified the books of accounts of the, Society. It
appears that in the las~ week of June 1970, Sagar (PW2) the retired
Estate Manager, complained to Doongaji (PW 1) that certain
amounts which' had been paid by him to the ap'pellant-accused were
not to be found in the books of accounts of the Society maintained by
the appellant-accused, whereupon Doongaji took Sagar to Professor
Choksi, the managing trustee of Sir Dorabji Tata Trust and in July
or August, 1970 Karsi Gherda (PW!l). Controller of Accounts in
Tata Electric Company was requested to look into the accounts. of
the Society,
Upon scrutiny of the accounts and enquiry, which was
actually undertaken by Nariman Deboe (PW6) under the supervision
of Karsi Gherda (P.W.11 ), the appellant-accused was found
to be
involved in defalcation of as many as 8-iteni.s includipg the aforesaid
amount of Rs. 1607.50 and a report in that behalf was submitted by
Nariman Deboo (PW6) 'on the strength of which, after obtaining the
sanction of the Managing Committee of the Society, Doongaji (PW!)
lodged a written complaint (F.I.R. Ext. 12) with
the
police
on
October 17, 1970.
The crime was regisfered by the Pallan Road
Police Station and subsequently the investigation, was taken over by
the Crime Branch C.I.D. and after completion of the
investigation
the appellant-accused was charge-sheeted and
then
committed
to
the Court of Sessions to stand his trial for offences under s. 4 71 read
withs. 468 (two counts) Dile in respect of each of the two documents,
the bill and the vm;cher/receipt, s. 408 ands. 477A. 1.P,C.
The appellant-accused abjured 'guilt and deni,ed having committed
any of the offences with which he was charged. He disputed that there
was any practice to keep in his custody th<\ cheque-book of the society
containing the blank cheques signed by Doongaji (PWl) and K. N.
Singh (PW12) as, suggested by the prosecution or that he had made
use of any such signed blank cheque by issuing the
bearer·. cheque
No. 377137 on Apri! 3, 1970 for Rs. 1607.50 for the purpose of
misappropriating the amount as alleged.
According to him the,
amount of Rs. 1607 .50 was paid in cash by him to Sagar (PW2) on
the .instructions from Doongaji (PWl) but at that time be had told
Doongaji that a large amount was due by Sagar to the society and if
at all the payment was to be made to him it should be adjusted
against the amount due to ,the Society from him, but Doongaji ·did
nc-t accept his suggestion but insisted that the amoui1t should be paid
to Sagar without any adjustment. 'The appellant-accused denied that
the bill of Patni & Co. was banded over to him by Sagar at any time
or at about the time when the payfuent was made to , him at the
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484
SUPREME COURT REPORTS
(1978) 2 S.C.R.
instance of Doongaji but what was handed over to him was a · billcum-receipt of M/s Patni & Co. written in Gujarati containing
the
rubber stamp of M/s. Patni & Co., on the strength of which the
payment was vouched but this Gujarati writing was not forthcoming.
Even though he had made cash payment of Rs. 1607.50 to
Sagar
under instructions of Doongaji, he wanted an entry of this amount
in the Bank co'lumn of the Cash-Book of the society and this he did
by way of precaution since according to him at that time a large
amount was due to be paid by Sagar to the Society.
Accordingly, he
filled in the body of the cheque .and in the presence of Doongaii on
the top Qf the counter-foil vf the cheque he made an endorsement
"under verbal order of R.D.D." He wrote down the name of Lad, a
Peon of J. N. Tata in the body of the cheque.
The Maharashtra
State Co-operative Bank was not permitting the bearer cheque to be
cashed unless the Chairman and the Secretary of the Society gave
their signatures ~m the reverse of the cheques and since it was difficult to obtain the signaJ!Jfes of fhe Secretary Singh, he
wrote the
name of Lad as the. payee of the cheque while on the counter-foil
he mentioned the name of A.G.R. Patni and Co. because the payment of Rs. 1607.50 had been made towards the satisfaction of the
bill for that amount to Patni & Co. by Sagar.
His case further was
that after Lad cashed the cheque, Lad gave the amount to him which
he kept in the cash-box; in other words, his defence was that from
out 1of the caslf..box he made cash payment of Rs. 1607.50 to Sagar
on the insistence of Doongaji and then replenished the cash-box after
encashment of the cheque through Lad.
He further
emphatically
disputed that he had used the forged bill and forged voucher/receipt
in connection with the payment of Rs. 1607.50 which he made to
Sagar at the instance of Doongaji.
He also denied . that he had
misappropriated the amount or had falsified the cash-book as alleged
and the case of the prosecution being entirely false he deserved to be
acquitted.
At the trial the prosecution led oral as
well
as
documentary
evidence in support of its case.
The oral evidence consisted of as
many as 15 witnesses out of whom 7 witnesses were material, namely,
Doongaji (PW!), Sagar (PW2), Abdul Gani Patni (PW3), Shivram
Lad (PW8), Nariman Deboo (PW6), Kars Gherda (PWJJ) and
K. N. Singh (PW12). At Ext. 5 collectively were produced the two
documeQlS, namely, the inflated bill dated December 14, 1969 and
the voucher-cum-receipt dated April 3, 1970, the bearer cheque
bearing No. 377137 dated April 3, 1970 in favour of S.A. Lad for
Rs. 1607.50 was produced at Ext. 9 whereas the counter-foil thereof
in the name of M/s A. G. R. Patni and containing the endorsement
"under verbal order of R.D.D." was produced at Ext. 7; the cashbook containing the r"1evant entry for Rs. 1607.50 was produced at
Ext. 10 and the F.I.R. lodged by Doongaji on October 17, 1970 was
prpduced at Ext. 12.
One Nand Kumar Parekh, an
Hand-writing
Expert and the State Examiner of Documents in the State C.I.D. was
<xamined who gave his expert opinion that the .purported signature
"B. A. Sagar" and the purported initial "RDD" appearing on the
•
.. ,.
BARJURE v. MAHARASHTRA (Tulzapurkar, J.)
. 485
voucher-cum-receipt dated April 3, rJ70 (Ext. 5 colly.) were not in
the hand of witnesses Sagar and Doongaji respectively but were traced
forgeries and gave reasons for his said opinion of course, this was in
addition to the positive evidence of these two witnesses who had stated
.that the concerned ·signature artd the concerned initial were not
their's.
The learned Session Judge on a consideration of the
evidence on record came to the conclusion that the prosecution had
failed to establish any of the charges against the appellant-accused
beyond reasonable doubt.
He did not accept the prosecution case
that signed blank cheques 8 or 10 at a time used to be kept with
the appellant-accused and did not accept the evidence of either
Doongaji (PWl) or K. N. Singh (PW12) in that behalf, for according
to him, the reasons for resorting to· such practice were not s~tisfac
tory.
He also took the view that it was not possible to accept the
prosecution case that the appellant-accused was in possession of the
·Original bill N0. 49 dated December· 14, 1969 of Patni & Co. and he
felt tbat defence version had
been
rendered
probable that the
appellant-accused must have made the payment of Rs. 1607.50 to
Sagar at the instance of Doongaji especially as on the counter-foil
of the Qoncerned bearer cheque No. 317137 dated April 3, 1970 there
was an endorsement made by 'the appellant-accused "under verbal
order of RDD"; in other words, he was inclined to accept the defence
·case that the appellant-accused had first paid out cash of Rs. 1607:50
to Sagar from out of the cash-box and thereafter replenished
the
cash-box by issuing the bearer cheque and getting it cncashed through
peon Shivram Lad. · He observed that though there was a ring
df
plausibility and possibility in the case of the prosecution in res:Q.Cct of
the charges levelled against the appellant-accused, conviction could
not be based merely on possibilities unless the charges were established against him beyond reasonable doubt and since there were various
circumstances which supported the defence it was a balancing case,
the balance tilting very much in favour of the acc11sed.
He, therefore, gave the benefit of doubt to· the accused in respect of the four
charges levelled against him and acquitted him.
Against this acquittal order passed by learned Addi. Sessions Judge dated September 5,
1973, the State of Maharashtra preferred an appeal to the High
Court of Bombay being Criminal Appeal No. 176 of 1974.
In appeal the High Court reversed
the
acquittal recorded
in favour of the
accused
by
the
learned Addi.
Sessions
Judge and convicted him of all_ the charges that were levelled
against him by its judgment and order dated September 30, 19}4.
In ·particular the High Court accepted the prosecution case that the
practice of keeping 8 to 10 signed blank cheques in custody of the
accused had been satisfactorily established, that the two
documents
namely, the bill No. 49 dated December 14, 1960 from Patni & Co.
as well as the voucher-cum-receipt dated April 3, 1970 were clear
forgeries the distortion and cutilation were with the appellant-accused a
of each, that the two documents were with the appellant-accused and
that on the basis of those two documents he had purported to make
thff payment of Rs,
1~07:50. The High Court rejected the defence
version that the appellant-accused had first paid cash out of the cashbox to Sagar as suggested by liim or that he had done s(:/ at the
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486
SUPREME COURT REPORTS
[1978] 2 S.C.R.
instance of Doongaji or that he had issued the bearer cheque under
verbal order of Doongaji as suggested.
It found
that the
Society
had not got so much cash with it on or about April 3, 1970, that the
cash balance on hand with the Society for quite some time prior to·
Apnl 3, 1970 was only Rs. 505.07p; that Sagar's evidence that he
had not gone to the office in the month of April,
1970 after his
retirement was acceptable and, therefore, the accused's ,·ersion that
he had first paid cash to Sagar and had replenished cash by issuing
and encashing the bearer cheque was utterly false and he had dis:
honestly misappropriated the amount.
Holding that
the
prosecution had established its case against ihe appellant-accused beyond
doubt, the High Court convicted him of all the charges levelled against
him.
However, on the question of sentence,
for
certain reasons
menti;:med by it in its j~dgment, the High Court sentenced him to
one day's imprisonment and a fine of Rs. 2000/- and in default to
suffer rigorous impri.sonment for six months.
It is this
conviction
and sentence imposed upon him by the High Court that is
bein12:
challenged by the appellant-accused before us in this appegl.
Mr. J. P. Mehta, learned counsel for the appellant-accused has
princip>ally raised two or three contentions in support of the appeal. In
the first place he contended that the High Cpurt had erred in intei;-
fering with the acquittal that had been recorded by the Sessions Judge
in favour of the appellant-accused especially when the Sessions Judge,
while appreciating the prosecution evidence, had given substantial
re>asons for not accepting the same and coming to the conclusion that
the defence version was more prob>able.
He urged that before
reversing the acquittal recorded by the Trial Court, the High Court
should have g:ven cogent reasons for rejecting the reasoning of the
Trial Court and that it was also well-settled that the High Court must
be satisfied that the grounds given by the Tri'al Court for acquittal
were palpably wrong or manifestly erroneous, shocking one's sense
of just'ce and in this behalf he relied upon two decisions of this Court,
namely, Rajendra Prasad v. State of Bihar(1 ). and Vasudeo Kulkarni v. Surya Kant Bhatt and Another(2 ). Secondly, he contended.
that the entire case of the pr.oseC\Ition was based on the theory that
blank cheques about 8 to 10 at a time signed by Doongaji (PW!) and'
K. N. Singb (PW! 2) used to be kept in the custody of the accused
which practice facilitated the commission of the alleged offences, but
the learned Trial Judge had rejected this theory as it found that the
reasons given in support of this theory by Doongaji were hardly satisfactory and the theory was, in fact, contrary to the contents of ·a letter
dated January 20, 1972 (Ext. 59) addressed by Singh to the Chairman of the Society wherein Singh made a categorical statement that
the cheque-books and all the papers and documents of the Society
were in the custody of the chairman of the Society and the High
Court had gravely erred in accepting the aforesaid theory.
Thirdly,
he contended that the user of the two forged documents, particularly,
the bill No. 49 dated December 14, 1969 from Patni & Co. mainly
~.P.ended upo11 __ whether the said document had been handed overby
(I) [1977J 2. s.c.c. 205.
(2) [19nJ 2 s.c.c. 29~.
BARJURE v. MAHARASHTRA. (Tulzapurkar, !.)
487
Sagat to the appellant accused and was with the appellant-accused
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•on the basis of which it was suggested that the apRellant-accused had
issued the bearer cheque (Ext. 9) in question and the Trial Court had
rightly found that the reasons which Sagar mentioned why he handed
over the document to the appellant-accused were unaccepl'able
and
~herefore his evidence in that behalf had been rightly rejected and High
Court's finding that the said b'll as also the voucher-cum-receipt were
in the possession of the accused at the material time was contrary to
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the evidence on record. Mr. Mehta, therefore, urged that if on these
two principal aspects of the prosecution case the Trial Court's reasoning
could not be assailed by the High Court, the High Court ought not
to have .interfered with the acquittal of the appellant-accused as recorded by the Trial Court. Lastly, he contencted that even if it could
be said that the defence version had not been established nor rendered
reasonably probable by the accused or even if the same could
be
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regarded as false that did not mean that the prosecution case was
proved, for it is well-settled that the prosecution must succeed on its
own evidence which must be clear, cogent and convincing.
He,
therefore, urged that the convictions recorded by the High Court
against the appellant-accused should be quashed and his acquittal by
the Trial Court be restored.
Mr. M. N. Phadke, learned counsel
for the State of Maharashtra on the other hand contended that the
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reasons given by the Trial Court while recording the acquittal were
clearly found to be erroneous by the High Court and the High Court
had given proper reasons for reversing such acquittal. According to
him if the reversal of the acquittal by the High Court was based not
merely on a reappraisal of the evidence but on a consideration
of several important aspects
of the
case overlooked
by
the
Trial Court or if on appreciation of evidence no two views were
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possible and the trial court's view was erroneous, the interference
by the
High
Court with
such
acquittal
would be
justified
and in that behalf he relied on
two or
three decisions
of
this Court.
We may point out that the first ruling (Rajendra
Prasad's case) relied upon by Mr. Mehta related to a case dealing
with direct testimony of witnesses whereas the instant case could not
F
be regarded as a case where direct testimony of witnesses was
required to be appreciated and as such would be strictly inapplicable
and as regards the second decision (Vasudeo Kulkarni's case) it may
be pointed out that this Court has clearly observed that in
appeal
against acquittal the High Court may reappreciate for itself the
entire evidence and reach its own conclusion but when such conclusion was contrary to that of the Trial Court, the High. Court had a
further duty to satisfy itself that the grounds given by the Trial Court
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for acquittal were manifestly erroneous and according to Mr. Phadke,
the High Court has at more than one place indicated how the trial
Court's reasoning has been manifestly erroneous. The three decisions
on which Mr. Phadke relied are Sham Balu Chaugule v. State of
Maharashtra(') Jai Ram and other v. Stale of U.P. and Another(2)
SllT"Wan SiJlgh & Others v. State of Punjab(3 } in all of which the
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(I) [1976] 1 S.C.C. 438.
(2) [1976] 2 s.c.c. 191.
976] 4 S.C.C. 369.
488
SUPREME QOURT REPORTS
[1978] 2 S.€.R.
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acquittal recordt;d bX the trial court was interfered with by High
Court and s~ch mterlerence w~s confirmed by this Court and he urged
,.,~
that m the mst.ant case the High Court was justified in reversing the
acqmttal and such reversal fell within the ratio of the said decisions.
He C?~tende.d that on the prosecution theory of signed blank cheques
remrumng with the accused as well as the possession of the two forged
documents being with the appellant-accused, certain important
asB peels emerging from the evidence on record of the case had been
complete!y over-looked by the learned tri~l Judge and it was after ignor1 •
mg such unportant aspects that.he had rejected the prosecution evidence
I~
on both these points and therefore the High Court was justified in
having a reappraisal of the entire material. He also urged that the
'
High Court has enlisted numerous circumstances which rendered
. defence version totally false, some of which had been wrongly exC
plained away by the, learned trial Judge. According to· him,
therefore the High Court was right in coming to the conclusion that the
prosecution had eslllblished its case against
the appellant-accused
beyond reasonable doubt and had, therefore, rightly interfered with
the order of acquittal passed, by the trial Court. We find considerable
,,--
fon:e in the contentions urged by Mr. Phadke.
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At the outset two or three undisputed facts
which emerge
on record may be stated. It was not disputed before us that from
May 1969 onwards the appellant-accused was working as an Honorary Accountant of the Society upio July 1, 1970 on which date hi~
services as such Accountant were dispensed with and that as such
Accountant iJf the society his duties were to write and maintain the
books of accounts of the Society, to receive from the Estate Manager
the collections made by him from each member of the Society, to
credit the full amount of collection in the bank account of the society,
to pay municipal taxes. and make other payments of big amounts by
cheques only after varifyirig the minute book and satisfying himself
that such· payments had been sanctioned by the Managing Committee
and to reimburse the sundry expenses, which the Estate Manager
would incur, by cheques only. It was also not disputed before us
that in December 1969, M/s. A. G. R. Patni & C<!. had submitted
their bill No. 49 dated December 14, 1969 for Rs. 7.50 in respect
of some small job to Sagar, the Estate Manager, (PW2). It was also
not disputed that the said bill when it was submitted by Abdnl Gani
Patni (PW3) and when it was received by Sagar (PW2) the amount
thereof both in figures and words was Rs. 7.50 and it was some time
later that this bill No. 49 got interpolated and become inflated to
Rs. 1607.50 by addition of the figure "160" before the figure
"7"
but such interpolation only appeared in the amount expressed in
figures while the amount expressed in words continued to be "rupees
seven and fifty paise only". It is true that the prosecution has
not
been able to show as to how and who made such interpolatioo in this
bill but it cannot be disputed that anyone who would come across
such bill (being Part of Ex. 5 colly) would immediately notice the
interpolation and discrepancy therein,. so that whoever uses the bill
at any time subsequent to its tampermg would have ~n.owled,ge and
reason to believe that the same has been forged.
Similar ts
the
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BARJURE v. MAHARASHTRA (Tulzapurkar, J.)
489
pos1t1on with regard to the. other document, which is also a part of
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Ext. 5 collectively, namely, the voucher-cum-receipt dated April 3,
1970.
This voucher-cum-receipt purports to bear the signature of
Sagar (PW2) as also the initials "ROD" of Doongaji (PW!), both
of which according to the Hand~writing Expert's opinion are traced
forgeries and what is more there is JlOSitive evidence of .these two
witnesses that the purported ~1gnature and purported initials are not
theirs and there is no reason why their evidence in this respect should
B.
not be accepted, but that evidence apart, whoever sees this document
and reads its contents will immediately realise and at any rate will
have reason to believe that the same is also distorted and forged, for
the cJiocument is incomplete and in the amount
mentioned therein
there is a clear discrepancy.
The amount in figures is stated as Rs ..
1,607 .50 while in words the amount is mentioned as
Rupees one
thousand six hundred and seventy only.
The incompleteness lies in
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the last part of the document where it runs thus, "I also certify that
the work had been carried out in December but due to my sick I
was unable" and at the foot the purported signature of Sagar appears.
It is thus clear and it was, therefore, not disputed before
us
by
Mr. Mehta appearing for
the appellant-accused
that
both
these
documents on the face of them would bring home to the person who
uses them either knowledge or reason to believe that the same were
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forged.
This being the nature of the two documents in question if
the appellant-accused had used them in the sense that he l!ad made
them the ha,is for issuing the bearer cheque No.
377137
dated
April 3,
1970 he could be said to have
used both these forged
documents with the requisite knowl'edge or reason to believe them to
be forged at a time when he used the same.
The main question,
therefore, that arises for determination is
whether the
appellant:.
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accused had issued the bearer cheque dated April 3, 1970 on
fhe
strength of or on the basis of these forged documents and had misappropriated the proceeds of that cheque as alleged by the prosecution or whether the bearer cheque· was issued by him in the circumstances suggested by him in his statement under s. 342 of the Criminal
Procedure Code and what is more this question will have to be deterF
mined in the light of the further undisputed fact-a fact which lias
been deposed to by A. G. Patni 0'W2') that he or his firm had
received no payment whatsoever neither Rs. 7.50/- nor Rs. 1607.50
and that the biH has remained unpaid till now. In other words the
question would be whether the proceeds of the bearer cheque after
encashment thereof were misapprQ'priated by the appellant-accused or
· were used for replenishing the cash from out of which the amount of
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Rs. 1607.50 was allegedly paid by the appellant-accused to Sagar at
the instance of Doongaji as suggested by him.
It was in this
s1tnation that the two aspects assumed great significance in the case,
namely, whether it w~s the practice to keep about 8 to 10 blank
cheques signed by Doon1taii and It: N. Singh in the custody .of the
accused or not and whether the appellant-accused was in possession
of the forged documents, particularly bill from Patni & Co. at about
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the time when the bearer .cheque was iSsued by him,
on both of
which the conclusions reached by the High Court were contrary to.
those reached by the trial Court.
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SUPREME COURT REPORTS
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Dealing first with the prosecution theory that blank cheques signed
by Doongaji and Singh used to remain in the custody of the accused
there is evidence of two prosecution witnesses on the point, namely,
D1oongaji (PW I), and Singh (PWl2); Doongaji (PW I) has stated ·
that the bank account could be operated jointly by himself as the
Chairman and Singh as the Secretary, that Singh used to reside
at
Goregaon and every time whenever the cheque was required to be
drawn it was not possible for Singh to give his signature
on the
same and further that Singh used to insist that before he would put
his signature on the cheque of the society, the Chairman sh.ould put
his signature on the same and, therefore, with a view to facilitate the
convenience of Singh, it was the practice of the society that at a time
about 8 to 10 blank cheques used to be signed by him first and they
were sent to Singh through witness Sagar the Estate Manager, and
Singh used to put his signatures thereon, and the cheque book cμntaining such signed blank cheques always
used to remain in the
custody of the accused and on every ocC'asion the particulars of the
cheque both in words as well as in figures used to
be
written by
the appellant-accused. Doongaji also stated that the books ,of account,
the vouchers and cheque book used to be kept in the custody of the
accused in the office of Sir Dorabji Tata Trust.
To the same effect
was the evidence of Singh (PW12), who t:onfirmed that he used to
put
his
signatures
on blank cheques
whenever
they
were
signed
by
the Chairman of
the
Society
and
i)e
used to
receive
such
blank cheques
duly signed
by
the
Chairman
of
the
Society first through Sagar and later through Sagar's
successor Figrado and. that at a time he used to sign blank cheques
between 5 to 10 in number and sometimes they used to be 15 .also.
This evidence.