# MOHAMMAD ASLAM v. STATE OF UTTAR PRADESH

- **Citation:** [1977] 1 S.C.R. 689
- **Court:** Supreme Court of India
- **Decided:** 1976-09-22
- **Case number:** Criminal Appeal No. 310 of 1971
- **Bench:** P. N. Bhagwati, V. R. Krishna Iyer, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohammad-aslam-v-state-of-uttar-pradesh-6945
- **Pages:** 7

## Headnote

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689
Practice and Procedure-Re-appraisal of evidence by Supreme Court inspit~
of concurrent findings of fact, proper when miscarriage of justice has occurred.
A
B
The appellant, a cashier in a rural block development office of Shahjahanpur
district was convicted for misappropriating public money. Both the courts con·
currently found that he bad pocketed the sum which he claimed to have paid the
C
Pancbayat-Secretary as salary.
The appellant contended that the charge against him was falsified by the
rnucher and regular entry of the cash register regarding the above payment,
which bad been ticked ·and initialled by the Block Development Officer, and
produced in evidence.
Allowing the appeal, the Court
HELO : ( 1) The proposition of litigative finality at the High Court level
D
on findings of fact has been affirmed by this Court, but the exceptions which
prove the rule are also well-established.
A conviction of guilt bas been ren·
dered by both the Courts, but certain grave factors conducive to miscarriage
of 3ustice, induce us to make' an exception.
The accused is entitled to the
benefit of reasonable doubt owing to the contemporaneous entry in the cash
register coupled with the signature of the B.D.0. the same day, as against hi~
ipsi dixit later. [689 G, 691 H, 692 G-H]
(2) Our observations must serve as catalysts to crash strategi~s on white
E
collar crimes.
Gross negligence, even absent mens rea, in handling public
funds by those in office must hold penal consequences as it inflicts double injury
on the poor masses. [694 G-H]

## Text

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MOHAMMAD ASLAM
v.
STATE OF UTTAR PRADESH
September 22, 1976
[P. N. BHAGWATI,
V. R. KRISHNA IYER AND
S. MURTAZA FAZAL ALI, JJ.]
'
689
Practice and Procedure-Re-appraisal of evidence by Supreme Court inspit~
of concurrent findings of fact, proper when miscarriage of justice has occurred.
A
B
The appellant, a cashier in a rural block development office of Shahjahanpur
district was convicted for misappropriating public money. Both the courts con·
currently found that he bad pocketed the sum which he claimed to have paid the
C
Pancbayat-Secretary as salary.
The appellant contended that the charge against him was falsified by the
rnucher and regular entry of the cash register regarding the above payment,
which bad been ticked ·and initialled by the Block Development Officer, and
produced in evidence.
Allowing the appeal, the Court
HELO : ( 1) The proposition of litigative finality at the High Court level
D
on findings of fact has been affirmed by this Court, but the exceptions which
prove the rule are also well-established.
A conviction of guilt bas been ren·
dered by both the Courts, but certain grave factors conducive to miscarriage
of 3ustice, induce us to make' an exception.
The accused is entitled to the
benefit of reasonable doubt owing to the contemporaneous entry in the cash
register coupled with the signature of the B.D.0. the same day, as against hi~
ipsi dixit later. [689 G, 691 H, 692 G-H]
(2) Our observations must serve as catalysts to crash strategi~s on white
E
collar crimes.
Gross negligence, even absent mens rea, in handling public
funds by those in office must hold penal consequences as it inflicts double injury
on the poor masses. [694 G-H]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 310
of 1971.
(Appeal by Special Leave from the Judgment and Order dated
F
23-4-1971 of the Allahabad High Court in Criminal Appeal No. 168/
69 with Criminal Appln. No. 986/69).
Frank Anthony and U. P. Singh, for the Appellant.
0. P. Rana, for the Respondent.
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The Judgment of the Court was delivered by
KRISHNA IYER, J.
Some exceptions disprove the rule.
Cases ar1

legion where the proverbial proposition of litigative finality
at the
High Court level on findings of fact has been affirmed by this Court,
but the exceptions which prove the rule are also well-established.
We must at the outset state that this case does not fit into the conventional legal mould but, nevertheless, possesses such strange features
that our 'ultimate' power may legitimately come into play.
H
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690
SUPREME COURT REPORTS
[1977] 1 S.C.R.
A ~etty st?re;keeper-cum-cashier in a rural block development
off?.~ (m the d1stnct of Shahjehanpur) was charged. with misappropnation of ~eventl sums ~dding up to a little over Rs. 5,000/-. The
charges havmg been derued and the real culprit having been pointed
out .as the _boss of the block development office, the Sessions Court
received evidence on both sides, found the testimony of the Block
Devel?pmen~ _Officer (BOO, acronymically)
'completely false and
u~~elievable m ~egard to many of the items of embezzlement and made
cntical o~servatlons about his culpability in respect of many of the
malversations.
We may havo something to say about the not unusual _phenomenon of th? _'small fry _getting caught, and t~e big shark
breakmg through the net 111 econo!Illc offences where pubhc money is
h~ndled by public servants.
For the nonce we may content ourselve~
with the statement that the little official in his twenties-which the
ac~~d was-was acquitted of all but one charge and the misappropnat1on of Rs. ?,194.82 dwindled into a solitary fugitive item
of
Rs. 50/- for which he was punished with imprisonment for one year
a fine of Rs. 300 /-. The conviction was confirmed but the sentence
was reduced by the High Court.
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The aggrieved appellant urges before us that the solitary surviving
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item of misappropriation held proved concurrently, had, in fact, been
vitiated in the process by fundamental flaws.
We will proceed briefly
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to narrate the episode and examine the tenability of the extraordinary
features leading to the exculpatory sequel.
The agrestic immensity of Indian backwardness is sought to be
banished by developmental
activities through block-level infrastructures.
Jaitipur Block is one such and it has a nucleus of small
officials and some rural development assistants, the hegemony being
vested in the BDO. The dramatis personae here are the accused, the
stock-clerk-cum-cashier, the BDO (PW 8) and the Pancbayat Secretary (PW 7) whose magnificent salary is Rs. 50/- per mcnsem.
The
prosecution narrative runs long but can be short ill we abandon the
plurality of charges and limit the facts to the single item of Rs. 50/-.
In skeletal brevity, there was a Block Office in Jaitipur where a small
staff worked on low salaries to stimulate rural developm_ent. The accused
was cashier and used to be entrusted in such capacity with sums, large
and small. The case, as originally projected, was that Rs. 5,194.82 was
committed to his custody and the whole sum was siphoned off into his
own pocket by various acts of criminal breach of trust. Admittedly it
was the duty of the accused cashier to maintain the cash book and deal
with the monies.
Equally clear is the fact that the head of the office,
the BDO, was duty-bound 'to tally and check the dail~ entries of the
cash book with the relevant vouchers, to affix his signature. . . after
checking the total at the end of the day'.
The block office has, on its rolls, Panchayat Secretaries drawini
small salaries.
One of them is PW 7, on a monthly pay of Rs. 50 /-.
Another unfortunate feature of these offices, as disclosed h~ the evi-·
dence, is that ev.en these petty emoluments are paid irregularly pro-
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MOHD. ASLAM v. STATE OF U.P. (Krishna Iyer, ].)
691
ducing both discontent and inclination for manipulation.
That public
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offices should be so run is not ~o complimentary. Anyway, PW 7
·
received his p~y for December 1964 on February 22, 1965 and ~is
pay for the later month of January 1965 he drew a few days earlier
on February 15, 1965 (vide Exhibits Ka 26 and Ka 29). These
oddities in disbursements Jed to the plausible plea by Aslam, the accused, that P.W. 7 not having received his pittance for the month of
December 1964 even after January had come and gone, pleaded his
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dire need for money and received Rs .. 50/- as pay. for the month. of
January 1965 and signed a separated voucher beanng that date, viz;.,
February J , 1965. It is conceivable thati a little man with a little pay
packet,
which
is tantalizingly postponed,
pre~surizes the cash!er
to pay him the small sum signing a voucher and it need not surpnse
us if the cashier gives in to compassion and makes the payment. This
is precisely the case of the accused.
To shore up this plea, he points
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out a regular entry in the cash register against the date February 1,
1965 of a payment of Rs. 50/- as salary for the month of January
1965 to P.W. 7.
Reinforcement is received from the further fact that
this specific entry of payment-the falsification of which is the foundation for the charge of misappropriation of Rs. 50/- is ticked and initialled by the BOO P.W. 8. We have earlier referred to the practice
and the obligation of this officer to tally and check the daily entries
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in the cash book with the relevant vouchers and then to affix
the
signature after checking the total at the end of day. Moreover he had
the special responsibility, as the most responsible officer on the staff on
his own showing, 'to keep the cash balance found at the end of every
day in the cash-chest register'. He does not do daily physical verification of the cash but does it on a monthly basis and he keeps the key
of the same, although another key is left with the cashier.
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The accused's contention that he paid the salary of Rs. 50/-
to
P.W. 7 on February 1, 1965 supported though it is by an entry in tho
Books duly initialled by the BDO presumably a:fiter verification with
the corresponding voucher has been rejected by the Courts without
advertence to these spinal circumstances by the superficial plea that
P.W. 7 is seen to have been paid the salary for December 1964 on
February 22, 1965 with a regular entry and a stamped voucher.
P.W. 7, when examined, denied the earlier payment on February 1,
with a touch of dubious candour and owned up the payment for
December supported by the stamped voucher on February 22, 1965.
A streak of mystique generates doubt in P.W. 7's testimony because in
cross-examination he says : 'I do not remember as such that aloni
with other officials, the cashier would have given me the salary for the
morith of January 1965 for two times by mistake'. In the next breath
he corrects himself to say that he had not been paid twice.
On the
strength of these materials a conviction of guilt has been rendered by
both the Courts and, be the appreciation right or wrong, we as the
final court should have held back ordinarily from temptation for reappraisal, vehement argument notwithstanding.
But certain grave
factors, conducive to miscarriage of justice have bulked forward
to
induce us to make an exception, which we will presently expatiate
upon.
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692
SUPREME COURT REPORTS
( 1977] 1 S.C.R.
There were nine items of misappropriation originally imputed to
the accused.
All, but one, remained unproven and the guilt is now
fixed on one of the inconsiderable items.
Not that the littlest sum of
public money can be taken on privately with impunity but that the
perspective is coloured somewhat by the substantial failure of the
prosecution to make out its case regarding all the major items.
More
disquieting is the fact that ~e single surviving charge stands or falls
on the veracity or unveracity of a solitary witness appreciated in the
light of the conspectus of circumstances.
What are those circumstances ? The BDO, charged as he is with serious responsibilities includiug
guardant functions over the finances of the institution, has sworn that
he checks the daily entries in the cash book with the relevant vouchers
and affixes his signature, checks the total at the end of the day and
again affixes his signature. It is a pregnant piece of evidence that
there is a specific entry on February 1, 1965 in the cash book that a
payment of Rs. 50/- by way of salary to P.W. 7 has been made.
The
BDO has signed against the entry which means, in the ordinary course,
he has verified the payment with reference to the relevant voucher. If
this be a fact, the accused has probably paid the salary, made the
necessary entry, shown it together with the relevant voucher to the
BDO, got his signature, totalled up the figures correctly and secured
the BDO's signature over again.
The exculpatory impact of this
testimony is sufficient, according to ordinary canons of criminal jurisprudence to relieve the accused of culpability since reasonable doubt
1~ generated.
The sensible scepticism about guilt .vhich springs from
the BDO's signature _against the relevant entry is heightened by the
fact that the Finance Handbook referred to by the High Court in its
judgmen~ ·states that it is the duty of the drawing and disbursing officer
to check each and every entry of receipt and expenditure recorded in
the cash book and periodically to check physically the cash balances.
The BDO, according to the High Court, has made evasive statements
to suppress certain facts and 'spoken some apparent lies'.
Startlingly
enough, the Sessions Court has recorded P.W. 8, the BDO, as false
and unbelievable in regard to certain other charges and gone to the
further extent of concluding that four entries · figuring
as
charges
against the accused had been really made to the BDO himself
'who
probably embezzled these amounts'.
The consequential acquittal of
the accused on these four charges has not been disturbed. In sum,
therefore, the conclusion is irresistible that the BDO, the top officer
in full financial control, had behaved irresponsibly or delinquently
with regard to the funds of the block office, had been described as too
mendacious to be depended and had convicted himself, of gross neglect
of public duty in regard to the checking of the cash register, out of
his own mouth. If we are to attach,--there is no reason for a Court
not to do so-weight to the contemperaneous entry in the cash register coupled with the signature of the BDO the same day,
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against his ipse dixit later, the accused is entitled to the benefit of
reasonable doubt.
There is likely to have been a separate voucher
evidencing thd payment of Rs. 50/- which is the subject of the defalcation because the BDO is not likely to have attested the entry of that
payment without checking it up with the corresponding receipt.
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MOIJD. ASLAM v. STATE OF U.P. (Krishna Iyer, !.)
693
Two circumstances fall to be mentioned before the probativ•
balance-sheet can be struck.
The entry of Rs. 50/- on· February 1,
1965 is seen scored off.
Who did it ? Can we guess in the dark ?
Nothing on record suggests that the accused alone could have done it
There is much credibility in the theory that with the connivance of
the BDO and the clerks petty sums are quietly abstracted from the
public exchequer, make believe entries are made and attesting signatures appended by the BDO and, if the peril of detection by higher
officers is apprehended, scorings, additions, alterations and the like
are made.
It is common case that in the cash register there are many
such crossings, cuttings, scorings and like tamperings.
Many scape.-
graces were perhaps party to these processes but one scapegoat cannot, for that reason, get convicted in the criminal court.
In this context it is pertinent tQ
remember that the Distric•
Accountant, after a fuller examination of the books of the block offices,
has stated that the several embezzlements have been facilitated by the
laxity of the BDO _who should be directed to make good the loss.
A
further recommendation by him to proceed departmentally as agains•
the BDO and as against the Cashier is also found
in the report.
Whether action had been taken against the BDO, the State's counsel
was not able to tell us.
The sole lip service to the criminality imputed is lent by PW 7.
Did he receive his salary of Rs. 50/- twice over? Undoubtedly he
was interested in denying it.
Doubt hardly exists of the fact that he
got his small December salary of Rs. 50/- only in February next. Far
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more likely that in such a situation he would have pressed for
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payment of Rs .. 50/- to be adjusted later.
Likewise, his initial ambiguity in plainly denying that he had been paid twice enhances this
suspicion.
When the cash affairs of the office is in a mess, when the
Chief is guilty of dereliction, when the clerks are
receiving
petty
salaries at irregular intervals, the somewhat tainted testimony of PW 7
is fat too slender a string to hang the guilt upon, pitted as it is agains•
the cash register entry by the BDO, apparently after consulting the
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payment voucher.
The accused was suspended promptly and there.-
fore this voucher, if it did exist, must have been in the office and its
non-production in court is not a matter for drawing an inference
against the accused.
We have made this unusual probative survey of the evidence for
the sole reason that the bona fides of the prosecution, leaving off the
bigger and going at the smaller, mixing false testimony with true is
seriously suspect and holding on to the conviction of the accused on
no evidence, which a reasonable person reasonably instmcted in the
law will rely upon, is neither just nor legal.
The accused, at the time of the offence, was in his early twenties
probably a neophyte or new entrant into a little racket.
Doubts then
are. about his complicity but that a man may be guilty is different from
saymg that he must be guilty.
The dividing line between the two is
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694
SUPREME COURT REPORTS
(1977] 1 S.C.R.
sometime.> fine, but always real.
There is
undoubtedly collective
guilt in the conjoint delinquency in the running of the block development office.
Public affairs and public funds, especially on the developmental front, require far more integrity, orderliness, ac~vism. and
financial prudence.
Its absence we regret, but the specific gmlt of
the particular accused not having been proved, as mandated by the
la.w, results in his acquittal.
We accordingly allow the appeal.
Tho guilt-finding function is over, but judges have accow1tability
to the country to the extent matters falling within their professional
examination deserve sounding the tocsin.
With this alibi we make a
few observations.
The popular art of helping oneself to public money, in little bits or
large slices, is an official pathology whose pernicious spell has proliferated with the considerable expansion in institutions of public welfare
and expenditure for rural developmont.
From Kautilya's
Arthashastra to Gunnar Myrdal's Asian Drama, the vice is writ large and
the demoralising kink in the projects for criminal prosecution to eradicate these vices in public offices is that more often than not the bigger
engineer of these anti-social schemes figures as prosecuting
witnes~
and the smaller men in the package deal are put up as sacrificial goats.
The head escapes, the hand is chased down and, when the Court
convicts, cynicism, instead of censure, is the unintended public response. In a social system of 'the high and low, where the wheels of punitive processes are steered by the former, laws equal in the face quirk
unequal at heart. Crack-down Crime Control itself takes its alignment
from the social philosophy of the agencies of public power. The present
case is a small symptom of a spread-out disease and the State, in its
highest echelons, determined to down this rocket of economic offen~
must launch massive, quick-acting, broad spectrum prosccutorial remedies, regardless of personal positions, and leisurely procedural apparatuses, if high social dividends are to be drawn.
The mystique
of making the dubious officer the veracity vendor in the witness-box
and the collaborating minion the dock-dweller, is suspected as intrigue
to shelter the upper-berth culprit. Caesar's wife, where public interest
is at stake, must be above suspicion, if prosecutorial credibility is to
be popular purchase.
If the nation, poised for socialism, must zero-in on public office
offences, what we have observed must not-and surely, will notslumber as obiter sermons but serve as catalysts to crash strategies on
white-collar crimes.
In a developing country of scarce resources,
husbanding public funds has a special onerousne~s. Gross negligence,
even absent mens rea, in handling the nation's assets by those in office
must be visited with criminal liability as it inflicts double injury
on that voiceless, faceless, woe-stricken have-not community which is
aplenty.
Public power, under the Penal Law, must be saddled with
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MOHD. ASLAM v. STATE OF U.P. (Krishna Iyer, J.)
695
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higher degree of care, if Indian jurisdiction is to fulfil its social misA
sion through developmental legislation. Had such a law existed, many
superior officers routinely signing away huge sums or large contracts
could have been alterted into better standards by potential penal
consequence. The present case is an instance in point and our parliamentarians, we hope, will harken.
M.R.