BARJURE KAIKHOSROO MAARFATIA v. STATE OF MAHARASHTRA
Citation: [1978] 2 S.C.R. 479; 1977 INSC 244
Court: Supreme Court of India
Bench: P.K. GOSWAMI , V.D. TULZAPURKAR
Judgment date:
Case summary
1977 INSC 244. Supreme Court of India judgment dated 1977-12-16. BARJURE KAIKHOSROO MAARFATIA v. STATE OF MAHARASHTRA. Read the judgment and case details on...
Judgment text
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 Cct of the case and there- fore 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 mis- appropriated 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. - .. "" 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 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 1 Tata 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- ) '-. ' ~' • 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 appellant- accused 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 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 re- versing 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 Kul- karni 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 satis- factory and the theory was, in fact, contrary to the contents of ·a letter dated January 20, 1972 (Ext. 59) addressed by Singh to the Chair- man 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 A •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 B 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 re- corded 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 C 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 D 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 E 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 conclu- sion 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 G 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 H (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. A 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 as- B 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 ignor- 1 • 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 ex- C plained away by the, learned trial Judge. According to· him, there- fore 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. r D 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 Hono- rary 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 igned olank cheque would continue to remain with Doongaji.
We fail to appreciate as to why, if at all, the cheque-book was to remain with Doongaji and the cheques would be issued by the accused in the manner suggested by him, blank cheques would be signed by Doongaji at all. The evidence of the two witnesses as also the contents of the letter Ext. 59-D clearly show that the practice as put forward by the prosecution did obtain in the society. Apart from the aforesaid oral evidence of the two witnesses and the support it receives from the · Cf'Iltents of the letter Ext. 59-D, there is yet one circumstance which E supports the prosecution story on the question of aforesaid practice and that circumstance arises from the defence version itself. According to the appellant-accused in order to keep a record of the fact that it was on the insistence of Doongaji t. hat he paid cash amount of Rs. 1607 . 50 to Sagar and. issued a bearer ·cheque for replenishment of the cash-box he had put on endorsement on the counter-foil (Ex.
7) of the bearer cheque to the effect "under the verbal orders of Mr. RDD". Now, ordinarily if there was no practice of keeping blank cheques signed by Doongaji and Singh with the accused (signature of the two appearing on the blank cheques would amount to written order to the appellant-accused) and if cheques including the cheque in question were written out by the accused first and then they were signed by Doongaji there would be no necessity of putting the F G H endorsement "under verbal orders of Mr. RDD" on the counter-foil, the very fact that such an endor8ement was niade by the appellant- accused on the counter-foil of the cheque clearly suggests that the practice of keeping blank cheques signed by Doongaji and Singh with him did obtain.
Having regard to the aforesaid discussion, in our view, the trial Court was clearly wrong in disbelieving the prose- cution story in regard to the practke of keeping si,gned blank cheques in the· custody of the appellant-a,ccused and the High Court was nght in accepting the same. It is obvious that this practice which obtain- ed in Society clearly afforded an opportunity to the appellant-accused to commit the offences alleged against him. • BARJURE v. MAHARASHTRA (Tulzapurkar, J. ) 493 The next question that is required to be considered is whether after the bill No. 49 dated December 14, 1969 was submitted by Patni & Co. to the Society, the same was handed over and remained in possession of the appellant accused till the time the bearer che,que in question was issued by h! m. On this aspect pf the matter evidence of Sagar (PW2) is very material.
This witness has stated in exami- nation-in-chief that he retired as Estate Manager on December 31, 1969 due to his old age, that before he retired as Estate Manager he had received bill from M/s. Patni & Co: for· Rs. 7. 50 (Ext. 5 collectively) in respect of a small job carried out by them and that on or about December 20, 1969 he handed over the same to the appellant-accused and he asserted that at the time when he handed over the bill to the accused, the amount of the bill in figures was "Rupees seven and fifty paise". Jie was s_hown the voucher-cum- receipt dated April 3, 1970 and he assert~d that the signature "B. A Sagar" appearing thereon was not his signature at all. Hts further evidence has been that he never presented this voucher-cum-receipt to the appellant accused nor did he receive any payment of Rs. 1607. 50 from the appellant-accused in April, 1970 as alleged by him.
The defence has attacked the evidence of this witness ion A B c the point of his handing ayer the bill to the appellant-accused on two ·or three grounds. In the first place, it was pointed out that since the D bill was for a small amount of Rs. 7 . 50 normally it was the duty of the witness as the Estate Manager to disburse the same and, therefore, there was n,o occasion for him to hand ov_er the same to the appellant- accused. Secondly, it was contended that the witness has given two reasons for not making payment of the bill to M/s. Patni & Co. viz. , (1) that it was the last month of his service and (2) that he did not have sufficient funds with him and according to the defence both the reasons do not bear scrutiny and if the rcasp'DS for not disbursing the bill are false his evidence that he handed over the bill to the appellant- accused cannot and should not be accepted. It has bee!
\ elicited in his evidence that he usea to keep with him cash of the Society 'out of the collections made by him for days and months and in any case it would be difficult to believe that he did not have a paltry sum of Rs. 7. 50/- with him and it -has been further elicited that though it was the last month of his service he had made collection from the occupants of the flats. It was thus urged that both the reasons put forward by the witness for not disbursing the bill being false his evidence should be rejected.
It is true that the bill was for a small amount that it was his normal duty to diSburse the same and that the reasons given by him for not doing so may be wrong but these aspects would not be material because wnatever be the reasons and whatever be his negligence the fact remains-tlfat the witness had not disbursed the bill-which fact is independently proved by the unchallenged evidence of witness Abdul Gani Patni (PW~) and the question would be what would Sagar do with regard to such undisbursed bill before E F G he retired from service ? He· would naturally hand over the same to the appellant-accused before he went out of service. Sagar's evi- H dence, therefore, lends support to the prosecution case that the appellant-accused had in his possession bill "No. A9 dated December 14, 1969. There are two other pieces of evidence on record on A B c D E F G H 494 SUPREME COURT REPORTS (1978] 2 S. C. R.
which the prosecution relied to support Sagar's evidence and those are the testimony of witnesses Nariman Deboo, the internal Auditor (PW6) and Mr. Karsi Gherda (PWll). Nariman Deboo (PW6) has stated in his evidence that before starting his work of auditing the accounts of the Society which was entrusted to him by Karsi Gherda, he had contacted the - appellant-accused·, who was the Honorary Secretary of the Society. and had collected several · docu- ments (7 items) including the' cash-book of the society pertaining to the period from 1-7-1968 fp 30-6-1970 and two files of payments of vouchers for the same period, and that after going through · the accounts, from the file of vouchers he came across 8 vouchen; which appeared to be fictitious and fraudulent in character including the bill and the voucher protfuced at Ext. 5 collectively. This evidence sho'ws that the bill and the voucher at Ext.
5 collectively were among the several documents which had been collected by this witness from the appellant-accused and as such tlic appellant-accused could be said to be in pfl'Ssession of documents at Ext. 5 collectively. It was pointed out that. this evidence of the witness could not be. accept- ed inasmuch as the witness had passed a receipt produced at Ext. 43-D in respect of the ,several documents which he had collected from the appellant-accused and this receipt Ext. 43. -D does not refer to the item of two files of vouchers about which he has given evidence in examination-in-Chief. It may be stated that this receipt Ext.
43- D was put to the witness in his cross-examination and his attention was drawn to the absence of any mention cl' two voucher files therein and the witness explained the position by' stating that "at the time of handing over the various' documents to him by the accused, the accused had demanded from him receipt in respect of the counter- foils of the receipt-book as also the statement Of collections submitted to him by Sagar, Esta! <;; Manager, from time to time. As per the desire I had executed tlie receipt in favour of the accused". This explanation given by the witness cannot be regarded as satisfactory inasmuch as the receipt Ext. 43-D includes, apart from. the two items in respect of which the witness had stated that the accused demanded a receipt from him, some other items also and, therefore, it cannot be said that he had executed the receipt Ext. 43-D as per the desire of the appellant-accused.
The evidence of this witness, therefore, cannot avail the prosecution for establishing clinchingly that the bill and the voucher Ext. 5 collectively had been handed over to him by the accused. However, in our view, the other piece of evidence 0n which the prosecution has relied will clfnchingly establish that the appellant-accused was J;u\Iy conscious and aware of the forged bill dated December 14, 1969 and had on the strength of that bill as well as the forged voucher issued the bearer cheque in question and that is the evidence of Karsi Gherda (PW! 1). Karsi Gherda after he had been apprised by Nariman Deboo about the existence of these two documents (Ext. 5 collectively) which were fictitious and fraudulent in character, had a meeting of the persons concerned and had confronted the appellant-accused with these two documents. particularly, the bill part of Ext. PS and from what the accused stated at that time to the witna;s it would be clear that.
the appellant-accused was fully conscious and aware of the clear mter- • · • • BARJURE v. MAHARASHTRA (Tulzapurkar, J. ) 495 polation in the figure of Rs. 1607. 50 in the bill and inspite of such A awareness the amount was paid by him though allegedly under the authority of Doongaji. His evidence in this behalf is very material which runs thus : "I entertained a dou_\Jt about the genuiness of the bill. I, therefore sent for the accused. When I showed this bill -. part of Ext. 5 collectively and asked him as to what he wanted to say with regard to the clear interpolition in the figure of Rs. 1607. 50 the accused agreed with me and fokLme that even if it was clear B case of interpolation, he ! '_aid "ff the amount under the authority of Doongaji, who was Chairman of the Managing Committee of the Society". Nothing was elicited in ·his cross-examination so as to cast any doubt on this part of the ewdence given by him in examina- tion-in-Chief.
We might, however, state that for the first time in the appeal when it was being heard by the High Court an applicatip'n was made seeking permission to recaH the witness for the purpose C of contradicting him with hi~ police . statement where, according to the appellant-accused, the witneso; had not given his version as to what transpired between him and the accused during the meeting in such details but that application was _rejected by the High Court and, in our view, rightly. The aforesaid evidence of witness Karsi Gherda, therefore, clearly brings out the aspect that on his own admission the appellant-accused had made the payment" of the bill D on the strength of the bill with full consciousness and awareness that the same was an interpolated . and forged document. The clear implication arising from the aforesaid part of Karsi Gherda's evidence has been overlooked by the learned trial Court.
In our view, the evidence of Sagar (PW2) read in the context of the admitted fact that the bill had remained unpaid all through out as well - as the aforesaid evidence of Karsi Gherda clearly establishes. the fact that the E appellant-accused had not only the possession of the forged bill, being part of Ext. 5 collectively, but had purported to make payment by issuing the bearer cheque in question oh the basis of such forged bill.
Having regard to the above discussion it seems to us clear that on the two important aspects of the prosecution case, namely, (a) ·theory of blank cheques signed by Doongaji and Singh remaicing in the ens- F tody of appellant-accused and (b) possession of the forged bill with the accused on the basis of which the bearer cheque was issued by him, the conclusions of the High Court were right and pecause cert~in important aspects of the case had been overlooked by the learned tn~ Judge the High Court was justified in having a reappraisal of the evi- dence and coming to its own conclusions on these poin. ts contrary to those of the trial Court. G The next question pertains to the user of the forged voucher-cum- rcceipt dated April 3, 1970 bn the part of the appellant accused with the requisite knowledge of reasonable belief that the same was: a forged one.
As stated earlier Doongaji (PW 1) and Sagar (PW 2) have stated that the purported initial and signature appearing on the docu- ment were not theirs and there is no reason why their evidence in that H behalf should not be accepted. Bnt apart from this aspect, as observed earlier, on the face of it the document is incomplete and contains grave discrepancy in the matter of the amount for which the receipt A B c D E F 496 SUPREME COURT REPORTS [1978] 2 S. C. R. came into existence and it was not disputed before us by Mr. Mehta ! hat such a ~ocument on the. face of it would cause any one who read tt to ~n'. ertam reasonab~e beltef that it was a forged one. As regards user, tl ts clear that the issuance of the bearer cheque by way of satisfy- ing the bill of Patni & Co. would require to be vouched by some sort of a receipt from Patni & Co. That the appellant-accused was fully conscious of this aspect is clear from the fact that in his statement under s. 342 Cr. P. C.
, the accused has come out with a story that at about the time when he made payment in cash to Sagar through Doon- gaji and issued the bearer cheque and got it encashed for replenishing of the cash, some Gujarati voucher by way of a receipt from Patni & Co. had been produced to him but somehow or the other that Gujarati voucher was no~ forth coming. In other words, that the disbursement oi the bill would require to be vouched by a voucher-cum-receipt was very we,11 known to the appellant-accused. The Gujarati writing, it seems to us, is not forth coming because there was no such Gujarati writing at all in existence and the appellant-accused purported to make the disbursement of the forged bill on the basis of getting the same vouched by means of the forged voucher-cum-receipt, (being the other part of Ext. 5 collectively.
) In our view, therefore, on the aforesaid material which we have discussed above it app-ears to us clear that the prosecution could be said to have established its charge under s. 471 read with s. 467 I. P. C. under both the counts against the accused beyond any reasonable doubt and the High Court was justified in reversing the acquittal recorded by the trial Court in his favour on these counts. The· next question that arises for consideration is whether the appellant-accused had misappropriated the proceeds of the bearer cheque after the same were handed over to him by the Peon Shiv Ram Lad or he utilised the proceeds for replenishing the cash-box as sug- gested by him. The answer to the question must depend upon whether the evidence of Sagar on behalf of the prosecution deserves to be accepted or the defence version could be said to have been rendered reasonably probable by the appellant-accused.
The evidence of Peon Lad is categorical that after encashment of the cheque he handed over the proceeds to the appellant-accused and this was not disputed by the appellant-accused. His version has been that before the issuance of the bearer cheque (Ex. 9) and encashment thereof he made payment of Rs. 1607. 50 in cash from the cash-box to Sagar through Doongaji, in his presence and upon his insistence, notwithstanding his (accused's) suggestion that no such payment should be made as a large amount was G due from Sagar to the Society or atleast the payment should be adjtisted against such dues of Sagar to the Society, and, thereafter, he issued a bearer cheque for Rs. 1607. 50 in fdvour of Peon, S. A. Lad and after Lad handed over the proceeds of the cheque to him he replenished the H · cash by putting the amount in the cash-box.
His version further has been that in order to have a proper record that the payment was made at the insistence of Doongaji, he made an endorsement on the counter- foil of the cheque (Ex. 7) to the effect "under verbal orders of Mr. RDD". On the other hand, Sagar's evidence has been that he had nothing whatever to do with the voncher-cum-receipt (Ext. 5 collcc- • • -~J' BARJURE v. MAHARASHTRA ( Tulzapurkar, !. ) 4 9 7 tively), that the signature purporting to be his signature appearing thereon was not his and that he had not received the amount indicated in that voucher-cum-receipt from the appellant-accused at any time. Doongaji also denied this entire version and particularly denied that he had ever issued oral instructions or order to the accused to make the payment to· Sagar or that the payment was made in his presence or that the accused made the endorsement on the counter-foil of the cheque in his presence.
Nariman Deboo's (PW 6) evidence also shows that during the scrutiny and inquiry undertaken by him when the counter foil (Ex. 7) was shown to Doongaji the latter had denied having given any verbal order as suggested or endorsed by the accused on the counter foil of the cheque. So it is not as if Doongaji came out with such denial for the first time at the trial. Now, there are a number of circumstances which lend support· to Sagar's evidence and completely falsify the defence version. In the first place all· reimbursements to be made to the Estate Manager in respect of the sundry expenses for repairs incurred by him were required to be made by the appellant- accused by means of cheques only and not in cash and, therefore, ordinarily, if Sagar was to be reimbursed in respect of the bill of Patni & Co. , the appellant-accused should have ordinarily done so by means of a cheque and not cash.
Secondly, there has been no cross-examina- tion of Sagar on this part of_ his evidence that he was not paid the amount indicated in this forged voucher by the accused on or about April 3, 1970 or at any time. Apart from these circumstances, the prosecution has brought on record the fact which emerges from the cash-book that round about April 3, 1970 and for quite a few months prior to that date the only cash on hand that was lying in balance with the society was only Rs. $05. 55 and as such the appellant-accused could not have paid to Sagar from the cash of the Society a sum of Rs. 1607. 50. The learned trial Judge had explained away this cir- cumstance by observing that apart from working as ordinary Hon0rary Accountant of the Society, the appellant-accused was also doing the work of Koyna Relief Fund and Rural Welfare Board and he could have and must have made the cash payment of Rs. 1607.
50 from out of the cash of such funds, without any material having been brought on record by the accused as to what was the State of cash ·an hand in regard to these funds also. If once the prosecution established clearly that cash au hand of the Society was only 505. 55 on April 3, 1970 and for quite a few months prior to that date" and the accused could not have maae payment of Rs. 1607 . 50 to Sagar out of the Society's cash it was up to, the appellant-accused to render probable an alternative adequate source from which he could have made the payment but beyond suggesting that the appellant-accused was also doing the work of Koyna Relief Fund and Rural Welfare Board no other material was brought on record to show what was the state of cash on hand from these Funds. The High Court has rightly observed that the trial Court could not indulge in guess work on this aspect. This state of evidence completely falsified the accused version that he had paid Rs. 1607.
50 in cash to Sagar on or about April 3, 1970 and as such the further question of replenishing the cash with the proceeds of the bearer cheque would not arise. Further if the accused version were true that he had paid cash of Rs. 1607 . 50 to Sagar and had replenished the same by crediting the proceeds of the bearer cheque to the cash- A B. c D E F G H • A B c ---· 498 SUPREME COURT REPORTS [1978] 2 S. C. R. book of the society, proper entries would have been made by him in the cash-book, namely, there would be a debit entry in the cash-column of the cash-book and credit entry in bank column of the cash-book but such entries are conspicuously absent. We may point out that in paragraph 77 of its judgment, the High Court has enumerated scve~al circumstances including the aforesaid circumstances which clearly bring out the falsity of the defence, version and some of which subs- tantially corroborate the prosecution case.
The learned trial Judge has improperly tried to explain away these circumstances in fayour of the appellant-accused. There is no doubt in our mind that the charge of criminal breach of trust under s. 408 I. P. C. in respect of the amount of Rs. 1607 . 50 as also the charge of falsification of accounts under s. 477A I. P. C. have been established by the prosecution against the accused beyond reasonable doubt. In the result we confirm the convictions as we! as the sentence imposed upon the appellant-accusecl by the High Court and dismiss the appeal. · P. H. P. Appeal dismissed. •
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