STATE THROUGH SPE & CBI, AP v. M. KRISHNA MOHAN AND ANR

Citation: [2007] 11 S.C.R. 570

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

STATE THROUGH SPE & CBI, AP v. M. KRISHNA MOHAN AND ANR.pdf

Judgment text

r STATE THROUGH SPE & CBI, AP v. M. KRISHNA MOHAN AND ANR. OCTOBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ) Penal Code, 1860: ss.

409, 420, 467, 477-A r/w 120-B-Forgeryandmisappropriation ofbank loans-Bank Manager and Field Officer in conspiracy with each other sanctioned and disbursed loans in names offictitious persons-Trial Court holding both guilty and sentencing them- Acquittal by High Court-HELD: Prosecution has brought ample material on record which led to only one conclusion that accused committed the offences-Exoneration of one of the accused in departmental inquiry initiated only against him having concluded before police investigation stated in the case, would be ofno avail as )- Inquiry Officer did not have benefit ofthe evidence that was made available in the criminalproceedings-Besides, the inquiry report was not brought on record andfactum ofexoneration in departmental proceedings was taken as a defence, it was for the accused to bring on recordthe relevant material, which was notdone-High Court also erred inpurporting to holdthat specimenfinger print andhandwritings could not have been takenfrom accused-ss.

5 and 6 ofIdentification ofPrisoners Act, clearlyprovidesfor such a contingency-High Court completely misdirected itself in passing a judgment ofacquittal- Judgment ofHigh Court set aside-Prevention of Corruption Act, 1944-ss. 5(1) and5(2)-Code ofCriminal Procedure, 1973-Appeal against acquittal-Identification ofPrisoners Act, 1920-ss. 5 and 6. Prevention ofCorruption Act, 1947: s. 5(1) rlw s. 5(2), proviso-Bank Manager and Field Officer forging loans in names offictitious persons-Both heldguilty by trial ) MOHAN court-Acquittal by High Court-HELD: Bank Manager completing allformalities required to be complied withfor grant ofloan including obtaining appraisal report from Field Officer, sanction and disbursement ofloan on date offiling ofloan application itself-Entire prosecution relating to forgery and misappropriation having been attributed to the Manager, and he having used the appraisal reports prepared by Field Officer, a case is made out to invoke the proviso appended to sub-s.

(2) ofs. 5 in the case ofField Officer-Therefore, while upholding conviction and sentence awarded by trial court as against the Manager, sentence ofrigorous imprisonment ofthree months is imposed on Field Officer-Penal Code, 1860-ss. 409, 420, 467 and 477-A r/w 120-B ! PC Code ofCriminal Procedure, 1973: Appeal against acquittal-Jurisdiction ofappellate Court- HELD: an appellate court, while entertaining an appeal against acquittal, wouldbe entitled to consider the evidence brought on record _} and arrive at its own conclusion-Interference with a judgment of acquittal may not be made when two views are possible to be taken but when only one view is possible to be taken, appellate court would not hesitate to interfere withjudgment ofacquittal-Jn the instant case ', no two views are possible to be taken-Accusedwere rightly heldguilty ofthe offences charged-High Court misdirected itselfin passing judgment ofacquittal-Judgment ofHigh Court set aside-Penal Code, 1860-ss.

409, 420, 467, 477-A rlw s. 120-B-Prevention of Corruption Act, 1947-ss. 5(1), (2). 'y RespondentA-1 and respondentA-2,whowereManagerandField Officer respectively ofthe appellant Bank, were prosecuted underss. 409, 420, 467 and 477-A read with s. 120-B IPC and s. 5 read with s. 5(2) ofthe Prevention ofCorruption Act, 1947. Theallegations againstthem were that during the period 7. 12. 1984to14. 8. 1986, they conspired with each other in matter ofsanctioning and disbursing 6 Crop Loans of Rs. 5000/- each in the names offictitious persons by forging signatures and thumb impressions ofproposed borrowers in documents resulting f in misappropriation ofthe proceeds ofRs. 30,000/-. The trial court held both the accused guilty ofthe offences charged and sentenced both of them to rigorous imprisonment for six moths. It rejected the plea of respondent A-2 that in view ofthe departmental procee4~1,1g~ against him resulting in his exoneration he was entitled to be acquitted. On ~ j - ~ -- .

JI; appeal, the High Court acquitted the accused observing, i'! ~e[q! ia,~hat the procedure adopted for obtaining finger prints being ~~,"1~ry to fundamental rights of the accused, the same was not ad~i~s~~le, in evidence; that neither the Bank received any complaint from loanees . .. ; nor did the prosecution bring any corroborative materialon i;-e~ord. In the instant appeals filed by the Bank, it was contended for respondent A-2 that he merely prepared the appraisal report. and he was not involved in any forgery; that he joined the service only in1984 and was transferred on or about 14. 8. 1986, and subsequent renewals ofloans having been prepared in 1987, he was entitled to acquittal. Allowing the appeals, the Court HELD: 1. 1. In the instantcase,evidently, the formalities required to be compliedwith for grant ofloan, appraisal report recommendation I ~ I .

, prepared by respondentA-2 and sanction and disbursementofloan by respondent A-1 were completed on the very same day o~ which of P. W. l, A2 recommended the loans in the loan documents Exs. P. l and P. 2 and A. I sanctioned. P. W. 3, U. Jayapradaha Kumari, who worked as Cashier for about 3 years along with Al and A2 has stated that the debit voucher for Rs. 1,000/- dated 5. 5. 87 in Ex. P. 3 loan documents passed for payment by Al and '(· she paid the amount. She received the debit voucher for Rs. 1,000/ - and put her initial on the relevant entry marked as Ex. P26 and Al put his initial against the entry in respect ofcrop loans Ale. / No. 87/10. She entered the payment in respect of crop loan 87I y 10 in the rough chitta. Ex. P. 27 is the relevant entry. In Ex. P. 6 loan documents both appraisal report and the sanctioning authority .... signed by A. l and the debit voucher for Rs. l000/- passed by A. l and the amount was paid by her. Ex. P.

28 is the relevant entry in the payment scroll and contains her initials and A. I. She paid the cash of Rs. l000/- each under two debit vouchers in the loan docuinents Exs. P. 3 and P. 6 to A. 1. P. W. 5, M. Mallikarjunarao -1. who worked as Clerk-cum-Cashier, when A. I and A. 2 worked, has stated that the crop loans covered by Exs. P. 1, P. 2, P. 4 and P. 5 were sanctioned by A. l and the appraisal report was signed by A. l. He paid the amount to Al in respect of said loans. xxx xxx xxx So the entire evidence referred above show that the persons whose photos affixed to the loan applications and the names of the persons mentioned in the loan applications were never resided in Seethanagaram Village and the evidence of P. Ws. 21and22 the husband and wife, who originally took the gold loans from Panumaka Branch ofChaitanya Grameena Bank is corroborated by the evidence referred abovewitnesses that they never resided in Seethanagaram Village. " 6.

Before the learned Trial Judge, a contention was raised that the departmental proceeding has been initiated against respondent No. 2 herein resulted in exoneration and, thus, he was entitled to ajudgmentofacquittal. The said contention ofaccused No. 2 was rejected by the learned Trial Judge opining that the report ofthe enquiry officer who enquired into the charges had not been brought on record. 7. The High Court, however, reversed the said judgment of the learned Trial Judge holding that the procedure adopted for obtaining fingerprints being contrary to the fundamental rights ofthe accused, the same was not admissible in evidence. It was observed that the Bank did ·not receive any complaint from the loanees and the prosecution having not brought any corroborative material on record, the impugnedjudgment of the Trial Judge cannot be sustained. Furthermore respondent No. 2 having been exonerated in the departmental proceeding, a different view could not be taken by the criminal court.

8. We may notice the views ofthe High Court in this behalfwhich is in the benefit to the following effect : "The procedure as adopted by the prosecution especially during the investigation by the investigation officer by taking the signatures and thumb impressions of the Manager itself is not valid and . inadmissible in evidence. Except the report ofthe officer of the Bank, there is no complaint ofwhatsoever nature from the loanees as to non-receipt from any proper quarters at any point oftime. Therefore, in the absence ofproper evidence being available, it is too difficult to accept the mere statement ofP. W. 4, the Sarpanch especially for showing the non-existence ofthe loanees and draw any presumption as to falsifying the record and misappropriation of the amounts by the appellants herein. There is absolutely no acceptable evidence to show that at the time of verification, the loanees were not present before the Field Officer.

In the absence ofany documentary evidence in its support, it is not safe to simply place reliance on the oral testimony ofP. W. 4. Admittedly, as per the cashier, she has made due entries and a rough chitta in regard to the receipt ofthe payments. " 9. Mr. Amerendra Sharan, learned Additional Solicitor General, appearing on behalfofthe appellants, interalia, would submit that : I. In view ofthe Constitution Bench decision ofthis Court in State of Bombay v. Kathi Kalu Oghad AIR (1961) SC 1808, the High Court committed a serious error in opining that accused persons could not have asked to give their specimen left thumb impression or signatures. 2.

Keeping in view the fact that the loan had been sanctioned in form of non-existing persons, the question oftheir coming forward to lodge any complaint in relation thereto did not arise and, in fact, PW-21 and PW-22, in whose name, the loans were sanctioned, came forward and deposed before the learned Trial Judge stating that they had not obtained any loan. 3. The High Court furthermore committed a serious error in passing the impugned judgment in so far as it failed to take into consideration that the prosecution had proved, beyond all reasonable doubts, its case on the basis ofthe testimonies of PW3, PW-4, PW-5, PW-7, PW-17, PW-21 and PW-22. 4. Exoneration ofRespondent No. 2 in the departmental enquiry could not have been a ground for recording a judgment of acquittal. 10. Mr. Prabhakar, learned counsel appearing on behalf of respondent No. l, on the other hand, submitted : 1.

PW-3 and PW-5 were not trustworthy witnesses as both of them had accepted that there was no documentary evidence to show that they had paid the amount to accused No. I. ' 2. Accused No. 1 being the Manager ofthe Bank, could not have sanctioned the loan save and except on the basis ofappraisal report issued by Accused No. 2, who was the Field Officer. 3. The amount ofloan being only Rs. 5,000/- purported to have been paid each to PW-21 and PW-22 and the same having been only renewed in subsequent years, this Court should draw the presumption that the loanees have been repaying the foan amount 4. The report of the fingerprint expert should not have been accepted by the learned Trial Judge as the thumb impression ofthe right middle finger had been taken and not the left thumb . . nnpressmn. 11. Mr. Nageshwar Rao, senior counsel appearing on behalf of accused No. 2, urged that respondent No. 2 was entitled to a judgment ofacquittal inasmuch as : n 1.

The prosecution case is that all acts offorgeries which had been done by accused No. I and the accused No. 2 was only a witness thereto. 2. The only charge against Respondent No. 2 being that he was the one who prepared the appraisal report, which being only a procedural requirement, he could not have been convicted for the offence offorgery. 3. Respondent No. 2 having joined the services only in the year 1984 and having been transferred on or about 14. 8. 1986 and subsequent renewal ofloans having been processed in 1987, J: he must be held to be wholly innocent. 4. The departmental proceedings against Respondent No. 2 having resulted in his exoneration, he could not have been convicted in the criminal case. 12. Following facts emerge from the records: On 20. 5. 1985 one K. Venkata Satyanarayana (PW-21) applied for crop loan ofRs. 5,000/-. In the said application, he was shown to be the resident ofvillage Seetanagaram, district Guntur.

In his deposition, PW- ij 21 stated that he was a resident ofDistrict Vijayawada. The appraisal report was prepared by the Field Officer on 20. 5. 1985 itselfwhereupon the Manager made recommendations and sanctioned the loan on the very same day, i. e. , 20. 5. 1985. The amount ofloan was also disbursed on the same day. On 14. 6. 1986, loan ofK. Venkata Satyanarayana was renewed and all the formalities, i. e. , from the stage offiling application to disbursement on renewal were completed on the very same day. On 14. 6. 1986, Mrs. K. Seeta (PW-22) wife of K. Venkata ) Satyanarayana, also purported to have applied for a crop loan of , Rs. 5,000/-. In her application also, her residence was shown as village Seetanagaram, District Guntur, while in her deposition, she stated that she was a resident of District Vijayawada. On this occasion also, all the i;;: formalities for grant of loan were completed on 14. 6. 1986 itself and ' amount ofthe loan was disbursed on the very same day. . On 4.

5. 1987, loan of K. Venkata Satyanarayana was again renewed. On the basis ofthe existing appraisal report, sanction of loan was granted by the Manager and the loan amount was also disbursed on the same day. Evidently, the formalities required to be complied with for grant of loan, appraisal report recommendation, sanction and disbursement ofloan : were completed on the very same day on which application for grant of loan was filed. PW-4, the village Sarpanch, in his deposition also stated that PW- 21 andPW-22 in whose favour the abovesaid loans were sanctioned were not the resident ofvillage Seetanagaram. 13. Both PW-3 and PW-5, in their depositions before the learned Trial Court stated about the procedure for grant ofloan followed in the bank. Itappears that the accused No. I for all intent and purport used to do everything himselfwhich were required offering for the pmpose ofgrant ofloan.

It has furthennore been brought on record that PW-2I and PW- 22 were known to the Manager ofthe Bank, i. e. Respondent No. I. They were residents ofa different district, namely, Vijayawada They had taken loan from the said bank on deposit of gold ornaments on an earlier occasion. They redeemed the said loan and took their ornaments back. They were known to the respondent No. I since then. I4. The modus operandi of respondent No. I appeared to be that he had affixed his own thumb impression instead of the those of the loanees, viz. PW-21 and PW-22 respectively. Upon sanction ofthe said loan, 'the accountant concerned paid the amount ofloan to accused No. I. Loan was purported to have been sanctioned either on the same day or within a few day~ from the date ofpurported applications. The said loans, as noticed hereinbefore, were also renewed for the years I986 and I987. 15.

The finger print expert, in his evidence, proved that specimen fingerprints marked as S-I to S-4 in Exhibit P-38 tallied with the disputed fingerprints marked as Q-I66, Q-I69, Q- I70, Q-I71 and Q-I72 with the specimen right middle finger impressions marked as S-4-11 on the F. P. slip marked as S-4. 16. Our attention, however, has been drawn by Mr. Prabhakar to the statement that the finger impressions marked as S-4 were more clear than the finger impressions marked as S-1 to S-3, to contend that the said specimen impressions were not clear. I7. PW-17, Mr. Venkateswara Rao, is a fingerprint expert. He had been working in Finger Bureau as Finger Print Searcher since 1971. He had passed All India Finger Print Expert's Examination conducted by Central Finger Print Bureau, Calcutta. He was promoted as Finger Print . 1: Expert in the year I975 and was furthennore promoted as Finger Print Inspector in 1979. He had deposed in a number ofcivil and criminal cases as an expert. ) 18.

We do not find any reason to discredit the testimony ofthe said expert. He was a qualified Finger Print Examiner. Apart from the fingerprints, the prosecution had also obtained the specimen handwritings of Respondent No. l. Handwritings on the said loan documents/ applications for grant of loan was found to be that ofaccused No. 1. 19. PW-3, U. Jayaprada Kumari, in her deposition, stated: "Both myself and A-2 were directly appointed to Penumaka branch. After receiving the loan documents from the borrowers all the documents will be filled up by the bank officials during lunch hour. The loan documents will be filled up after the disbursement the loan amounts to the borrowers. The Branch Manager used to obtain the signatures and that thumb impression ofthe borrowers on loan application. " 20. PW-5, Mallikarjuna Rao, also stated that debit vouchers of D Rs.

4,000/- in Exhibit P-6 loan document contained only one stamp showing as cash paid but it did not contain his signature although, it purported to have been shown to be his. Ext. P-6 was, therefore, was forged document. 21. It may be true, as has been contended by Mr. Prabhakar that there was no documentary evidence to show that the amount had actually been paid in cash to the accused No. l. But then no documentary evidence would be available as it was for the respondent No. l, as Manager ofthe Bank to hand over the amount in cash to the loanees upon receiving the same from PW-3. 22. The aforementioned two witnesses who had been working in the same branch of the bank with the respondents herein have proved the procedures adopted in the matter of grant of loan. There cannot, therefore, be any doubt whatsoever that ample materials have been brought on record by the prosecution which led to only one conclusion that the accused were responsible therefor. 23.

It may be true that no act offorgery and misappropriation has been attributed to Respondent No. 2, but he was the one who had 584 SUPREME_ GOURT REPORTS [2007] 11 S. C. R. prepared the appraisal report. After preparation ofsuch appraiSal report, the loan amount having been sanctioned and the amount ofloan·piliported to have been paid to the loanees and, hence, we are oftheropihion that he was also guilty ofcommission ofthe said offence. · • , i• '• ! (. I .. _ ~. , j ~ 24. Documents pertaining to the loan transactions beaftfie'same date, Le. , process ofapplication, technical recommendation,' pr~~~~tion of I ' ~ J J ' " appraisal report, sanction and disbursement ofloan. All transactions, therefore, took place on the same date which clearly establishes that they were manipulated by Respondent No. I. -. . ... '11 25. PW-3, in her deposition, in no uncertain line, 'state9.

that all transactions right from application to disposal took place in the afternoon of day and all the documents used to be processed during~the lunch hour, whereas as per to the procedure, the disbursement'ofloan could take place only upon proper verification thereof 26. The High Court, therefore, in our opinion, completely misdirected itselfin passing ajudgment ofacquittal in favour ofthe respondents. The learned Trial Judge had assigned cogent reasons in support ofits findings. The High Court did not meet the said reasonings. 27. It purported to have laid emphasis on exoneration ofrespondent No. 2 in departmental enquiry. 28. The departmental enquiry was completed even before the investigation in this case started. The Investigating Officer (pW-23), in his evidence, stated : "I am not aware whether the Departmental enquiry was conducted against A. 2 and it was completed even before I started my investigation. " 29. Furthermore, the enquiry report has not been broughtpn record. ~ .

, ). ~ . The factum of exoneration of respondent No. 2 in the departmental proceedings was raised by way ofdefence. It was, therefore, obligatory on his part to bring on record all the relevant documents, namely, the charge-sheet, the other materials brought on record by the department :H j and the findings ofthe Enquiry Officer. Ifthe statement ofthe Investigating Officer (PW-23) is to be accepted and there is absolutely no reason as to why it should not be; there was no occasion for the enquiry officer to have the benefit ofthe depositions ofthe purported loanees, namely, PW- 21 and PW-22, the opinion ofthe fingerprint expert and other material brought on record by the prosecution which clearly established the involvement ofthe respondents herein. 30. Mr. Nageshwar Rao relied upon a decision ofthis Court in P. S. Rajya v. State ofBihar, [1996] 9 SCC 1. The fact situation obtaining therein was absolutely different.

In that case, in the vigilance report, the delinquent officer was shown to be innocent. It was at that juncture, an application for quashing ofthe proceedings was filed before the High Cowt under Section 482 ofthe Code ofCriminal Procedure which was allowed relying on State ofHa1yana v. Bhajan Lal, [1992] Supp. 1 SCC 335, holding: "23. Even though all these facts including the Report ofthe Central > Vigilance Commission were broughtto the notice ofthe High Court, unfortunately, the High Court took a view that the issues raise(;:l had to be gone into in the final proceedings and the Report ofth~ Central Vigilance Commission, exonerating the appellant ofth¢ same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already heldthatfor the reasons given, on the peculiarfacts ofthis case, the criminal proceedings initiated against the appellant cannot be pursued. " (Underlining is ours for emphasis) 31.

The said decision was, therefore, rendered on the facts obtaining ' therein and cannot be said to be an authority for the proposition that exoneration in departmental proceeding ipso facto would lead to judgment ofacquittal in a criminal trial ;;J. 32. In Superintendent ofPolice (CBI) v. Deepak Chowdhaty & Ors. , [1995] 6 SCC 225, this Court while considering a matter ofsanction, vis-a-vis, exoneration in a departmental proceedings, held: "We find force in the contention. The grant ofsanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court oflaw. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material.

Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction. The grant of sanction, therefore, being administrative act the need to provide an opportunity ofhearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation ofthe principles ofnaturaljustice. " 33. In a case of this nature where departmental proceeding was initiated only as against respondent No. 2, the enquiry officer did not have the benefit to consider all the materials which could be brought on record by the Department in the light ofthe investigation made by a specializ. ed { investigating agency, the evidence ofexperts and deposition ofwitnesses to show that forgery ofdocument has been committed by forging thumb impression and handwriting, we are ofthe opinion that exoneration of respondent No.

2 in the departmental proceedings cannot lead to the conclusion that he was not guilty ofcommission ofthe offences wherefor he was charged. 34. The High Court also committed a manifest error in purporting to hold that the specimen fingerprints and handwritings could not have been taken from Respondent No. I. 35. Sections 5 and 6 of the Identification of Prisoners Act, 1920 clearly provides for such a contingency and read as under : "5. ·Power ofMagistrate to order a person to be measured or photographed.

-Ifa Magistrate is satisfied that, for the purposes · ofany investigation ofproceeding under the Code ofCriminal Procedure, 1898 (5 of 1898) it is expedient to direct any person to allow his measurements or photograph to be taken, he may ) make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer: Provided that no order shall be made directing any person to be photographed except by a magistrate ofthe first class: Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding. 6. Resistance to the taking measurements, etc.

-(1) If any person who under this Act is required to allow his measurements or photograph to be taken resists or refuses to allow the taking of the same, it shall be lawful to use all means necessary to secure the taking thereof. (2) Resistance to or refusal to allow taking of measurements or photograph under this Act shall be deemed to be an offence under section 186 of the Indian Penal Code, 1860 (45of1860). " 36. A Constitution Bench ofthis Court in State ofBombay v. Kathi , Kalu Oghad, AIR (1961) SC 1808, examined the question in regard to the application ofthe aforementioned provisions, vis-a-vis the constitutional mandate that nobody shall be compelled to be a witness against himself as contemplated in Article 20 ofthe Constitution ofIndia in great details. It was clearly held : p "I0. "To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statements, but not in the larger sense of the expression so as to.

include giving ofthumb impression or impression ofpalm or foot or fingers or specimen 0' writing or exposing a part of the body by an accused person for purpose ofidentification. "Furnishing evidence" in the latter sense could not have been within the contemplation ofthe Constitution makers for the simple reason that - though they may have intended to protect an accused person from the hazards of self- incriminatio~ in the light ofthe English law on the subject- they could not have intended to put obstacles in the way ofefficient and effective investigation into crime and ofbringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate hims elf, as to arm the agents oflaw and the law courts with legitimate po~ers to bring offenders to justice.

Furthennore it must be assumed'that the Constitution-makers were aware of the existing law, for example, Section 73 ofthe Evidence Act or Sections 5 and 6 of ·the Identification of Prisoners Act (33 of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, ifhe is satisfied that it is expedient for the purposes ofany investigation or pro ceeding · under the Code ofCriminal Procedure to do so: "Measurements" include finger impressions and foot-print impressions. Ifany such person who is directed by a Magistrate, under Section 5 ofthe Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking ofthe measurements or photographs, it has been declared lawful by Section 6 to use all necessary means to secure. the taking ofthe required measurements or photographs.

Similarly, Section 73 ofthe Evidence Act authorises the court to permit the taking offinger impression or a specimen handwriting or signature of a person present in court, if necessary for the purpose ofcomparison. 11. When an accused person is called upon by the court or any other authority holding an investigation to give his finger impression or signature or a specimen ofhis handwriting, he is not giving any testimony ofthe nature ofa "personal testimony". The giving ofa "personal testimony" must depend upon his volition. He can make any kind ofstatement or may refuse to make any statement. But his finger impressions or his handwriting, in spite ofefforts at concealing the true nature ofit by dissimulation cannot change their intrinsic character. Thus, the giving offinger impressions or of ) specimen writing or ofsignatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression "to be a witness". 37.

For the views we have taken, the impugned judgment ofthe High Court cannot be sustained. We are not oblivious of the fact that presumption of innocence is a human right and when an accused is acquitted by a court, such presumption becomes stronger. We are furthermore not oblivious that a superior court, ordinarily, would not interfere with a finding ofacquittal, iftwo views are possible as has been held by this Court in State ofHaryana v. Sher Singh & Ors. , [2002] 9 SCC 356; Narender Singh & Anr. v. State ofMP. , [2004] 10 SCC 699 and Budh Singh & Ors. v. State of UP. , [2006] 9 SCC 731 whereupon Mr. Nageshwar Rao has placed strong reliance. 38. It is, however, a trite law that an appellate court, while entertaining an appeal from ajudgment ofacquittal, would also be entitled 1 to consider the evidences brought on record by both the prosecution and the defence and arrive at its own decision.

Interference with a judgment ofacquittal may not be made when two views are possible to be taken, but when on appraisal thereof, only one view is possible, the appellate court would not hesitate to interfere with the judgment ofacquittal. In this case, we are finnly ofthe view that no two views are possible to be taken. 39. Mr. Rao, however, would submit that involvement ofrespondent No. 2 is minimal. He had proposed an appraisal report but there is nothing to show that he had obtained any monetory benefit. 40. The entire prosecution case relating to charges offorgery and misappropriation has been attributed to respondent No. l alone. He was the one who had put on shelves all the procedural requirements. Not only he, during the luncheon hours, filled up the application forms, but even prior thereto he had purported to have received the documents, sanctioned the loan and obtained the amount ofloan in cash. PW-21 and PW-22 were known to him and not to the respondent No. 2. 41.

We, therefore, are of the opinion that a case has been made out to invoke the proviso appended to sub-section (2) of Section 5 of the Prevention ofCorruption Act, I947 in the case ofrespondent No. 2 Furthermore, he worked in the bank for a short period and was still undergoing probation. Forgery and misappropriation was committed by respondent no. I even thereafter. The appraisal reports prepared by respondent No. 2 were used by respondent No. I also for the subsequent period, namely, I987 when respondent No. 2 was no longer working in the said branch. 42. For the reasons aforementioned, while upholding the conviction and sentence as awarded by learned Trial Judge as against respondent No. 'l (accused No. I), in view of the special reasons recorded hereinbefore, we impose a sentence ofrigorous imprisonment ofthree months on respondent No. 2. He shall, however, be liable to pay a fine of Rs. 20,000/- (Rupees twenty thousand only) and in default shall undergo sentence ofthree months.

· 43. Accordingly, the appeals are allowed with the aforementioned directions. The respondents may be takei1 into custody for serving out the respective remaining sentences. .... RP. Appeals allowed. -