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PETITIONER:

MOHINDER SINGH & ANR.

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT05/03/1974

BENCH:

KHANNA, HANS RAJ

BENCH:

KHANNA, HANS RAJ

KRISHNAIYER, V.R.

CITATION:

1974 AIR 873 1974 SCR (3) 519

1974 SCC (4) 285

ACT:

Indian Penal Code, Ss.409, read with s.109--Whether

conviction could be sustained on oral evidence in the face

of negative written evidence-Illiteracy How far benefit

could be given.

HEADNOTE:

The complainant who was Sarpanch of gram panchayat asked the

second appellant, his predecessor, to make over the records

of the gram-panchayat, transfer its accounts and hand over

the money belonging to the gram panchayat to him. The

second appellant put him off. When be made a complaint to

higher authorities the second appellant transferred some

amount to the complainant, but not the whole of it. The

complainant filed a suit in Civil Court for recovery of the

balance and rendition of accounts in respect of the unpaid

amount which was also large. The suit of the complainant

for rendition of accounts,was dismissed by the Civil Court,

accepting the evidence of the second appellant and his plea

that the accounts between the parties had been settled., The

complainant filed a complaint alleging that the first

appellant, an advocate and the second appellant had made him

sign an official receipt of the gram panchayat with its

official seal affixed on the receipt and took it without

making the payment of money to him. The second appellant

was tried for offences under sections 409, 461 read with 109

and 474 Indian Penal Code and the first appellant under

s.409 read with s.109, section 467 read with s.109 Indian

Penal Code and were convicted and sentenced to various terms

of imprisonment and fine. The High Court confirmed their

conviction and sentences. Before the trial court the

complainant led oral evidence to prove that the appellants

had taken advantage of his illiteracy and a trick was played

upon him by them.

Allowing the appeals to this Court,

HELD: There are clear infirmities in the prosecution case.

It is not possible to sustain the conviction of the accused.

Oral evidence which runs counter to an admission contained

in writing signed by a party in the very nature of things is

a very weak piece of evidence and cannot be accepted without

a grain of salt. In the face of the finding of the Civil

Court it would be incongruous to convict the second

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appellant on the basis that the amount of the Gram Panchayat

was still due from him. The complainant may be illiterate

but there must be a limit up to which the benefit of

illiteracy can be extended to him. The fact that the

complainant was illiterate could not induce the court to

ignore the infirmities in his evidence or to fill in lacunae

in the prosecution case.[524B-C,525B-D,526A-B]

This fact would also not justify the benefit of the doubt

being given to the prosecution instead of to the accused.

[526B]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 221

of 1970 A-S 47 of 1971.

Appeals by special leave from the judgment and order dated

the 8th October, 1970 of the Punjab and Haryana High Court

at Chandigarh in Criminal Appeals Nos. 374 and '76 of 1970.

Nuruddin Ahmad and U.P. Singh, for the appellants:

N. N. Goswamy and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

KHANNA, J.-Surat Singh and Mohinder Singh Advocate were

tried in the court of Additional Sessions Judge Karnal for

various

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offences. The learned Additional Sessions Judge convicted

Surat ,Singh under section 409 Indian Penal Code, section

467 read with section 109 Indian Penal Code and section 474

Indian Penal Code and sentenced him to undergo rigorous

imprisonment for a period of Iwo years and to pay a fine of

Rs. 25,000 or in default to undergo rigorous imprisonment

for a further period of eight months on the first count, to

undergo rigorous imprisonment for a period of one year on

the second count and rigorous imprisonment for a period of

one year on the third count. Mohinder Singh accused was

convicted under section 409 read with section 109 Indian

Penal Code and section 467 read with section 109 Indian

Penal Code and was sentenced to undergo rigorous

imprisonment for a period of two years and to pay a fine of

Rs. 25,000 or in default to undergo rigorous imprisonment

for a further period of eight months on the first count and

to undergo rigorous imprisonment or a period of one year on

the second count. The substantive sentences of imprisonment

in the case of each of the two accused were ordered to run

concurrently. It was also directed that out of the fine, if

realised, Rs. 46,875 should be paid to the Gram Panchayat

Neemwala. On appeal the Punjab and Haryana High Court

affirmed the decision of the trial court. By special leave

Mohinder Singh has filed criminal appeal No. 221 of 1970

while Surat Singh has filed criminal appeal No. 47 of 1971.

This judgment would dispose of both the appeals.

The prosecution case is that prior to the year 1961, four

villages, namely, Seonsar, Hailwa, Neemwala and Ramgarh Ror

had a common Gram Panchyat known as Gram Panchyat Seonsar.

Surat Singh accused was the Sarpanch of the Gram Panchyat.

Ram Kishan was then a member of the Gram Panchyat and he

represented village Ramgarh Ror. Each of the other three

villages was also represented by a Panch. In 1957-58 the

Government acquired large areas of shamlat land of villages

Ramgarh Ror, Seonsar and Hailwa for the purpose of

establishing a big forest plantation. The shamlat land of

these villages had already vested in the Panchyat under the

Punjab Village Common Lands (Regulation) Act. On the

acquisition of those lands, the Government paid compensation

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amounting to Rs. 3,51,844. Out of that amount, Rs. 1,68,844

represented the compensation for the acquisition of shamlat

land in village Ramgarh Ror. Surat Singh in his capacity as

Sarpanch of the Gram Panchyat received those amounts and the

compensation for each of the villages Was kept distinct and

separate, so that the benefit of the money should accrue

only to the respective villages. The compensation amount of

Rs. 1,68,800 relating to Ramgarh Ror was invested as follows

(i) Rs. 1,00,000 deposited in the Kaithal Mandi Post Office

(ii) Rs. 50,000 deposited in the Reserve Bank of India New

Delhi

(iii)Rs. 18,800 deposited in the Central Co-operative Bank

Kaithal

The Gram Panchyat of Seonsar continued to function up to the

beginning of 1961. Some amounts out of the compensation

deposited were withdrawn for being spent for those villages.

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In the beginning of 1961 the Government split the area of

Gram Panchyat Seonsar into two separate areas and

constituted two Gram Panchyats. In this new arrangement the

'Gram' Panchyat Seonsar functioned only for two villages,

namely, Seonsar and Hailwa. For villages Neemwala and

Ramgarh Ror a new Gram, Panchyat known as- Gram Panchyat

Neemwala. was constituted. After the formation of the new

Panchyat Ram Kishan PW was elected Sarpanch of Gram Panchyat

Neemwala, while Surat Singh continued, as Sarpanch of Gram

Panchyat Seonsar. After the.elections Ram Kishan as

Sarpanch of Gram Panchyat Neemwala made a demand and for the

custody of the Panchyat,record relating to the two; villages

Neemwala Land Ramgarh Ror and also 'asked for the payment of

the amount standing in the account of village Ramgarh Ror.

Surat Singh accused, however, put off Ram Kishan PW. Ram

Kishan thereupon made an application to the higher

authorities. Surat Singh accused thereafter transferred the

deposit of Rs. 1,00,000 in the name of Ram Kishan as

Sarpaanch of the new Panchyat. No steps were, however,

taken by Surat Singh accused to transfer the remaining

amount. As Surat Singh did not

not render accounts, Ram Kishan PW consulted Mohinder Singh

Advocate accused and on the latter's advice filed a suit for

rendition of the accounts against Surat Singh in the Court

of Sub Judge at Kaithal. Mohinder Singh accused was also

engaged by Ram Kishan PW a,,; his counsel in that case. Ram

Kishan then learnt that Mohinder- Singh accused had good

relations with Surat Singh and he, therefore, requested

Mohinder Singh for his help, for the return of the balance

of the amount- lying with Surat Singh. On the advice given

by Mohinder Singh, Ram Kishan got passed resolution DB/1 by

Gram, Panchyat Neemwala on May 14, 1963 whereby Rao Kishan

was authorised on behalf of the Panchyat to receive the

amount due from Gram Panchyat. Seonsar. Ram Kishan also

handed over memorandum PWI/A which had been issued by the

Reserve Bank of India for the deposit of Rs. 50,000 to

Mohinder Singh accused. Ram Kishan thereafter made enquiries

from Mohinder Singh about the amount of Rs. 50,000 but on

each occasion Ram Kishan was put off by Mohinder Singh by,

saying that the amount had not been transferred and th as as

it was done, he would get in touch with Ram Kishan. As the

payment of the amount was being delayed and some funds were

needed' for the school building, Ram Kishan talked to

Mohinder Singh in the first week of December 1963 about the

payment of Rs. 6,000 which 'was due as interest. Mohinder

Singh then told Ram Kishan to come to his office on December

13, 1963 with the receipt book of the Panchayat and its

official seal. Mohinder Singh, also mentioned that he would

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send for Surat Singh accused on that: day and would secure

the payment of the interest amount of Rs. 6 000 as well as

of the principal amount if the same too was received.

On December 13,1963 at about 10 a.m. , it is stated , Ram

Kishan PW accompanied by Mussadi went to the Office of

Mohinder Singh accused with the official receipt book and

seal of Neemwala Panchayat. Both the accused were, present

in the office. Mohinder Singh accused then called a- boy

aged about 14 or 15 years and got something written

5-M 45 Sup CI/75

522

on the official receipt book which had been brought by Ram

Kishan. Rant Kishan knows only Landa character and is

otherwise illiterate. Mussadi too is illiterate. Both Ram

Kishan and Mussadi kept sitting at some distance smoking

Hookah. Ram Kishan was then called by Mohinder Singh

accused and his signatures were obtained on receipt DA as

well as counterfoil Pi of that receipt. The official seat

of the Gram Panchayat was also taken from Ram Kishan and was

affixed both on the receipt and the counterfoil thereof

under the signatures of Ram Kishan. Receipt DA was torn off

from the receipt book by Mohinder Singh accused and was

handed over to Surat Singh accused. When Ram Kishan

protested that the receipt had been taken from him without

his being handed over any money, he was assured by Mohinder

Singh accused that he would be taken to the bank and paid

the money there. Ram Kishan, Mussadi and the two accused

then went to Cooperative Bank Kaithal. The clerk on duty in

the bank told Mohinder Singh that the sum of Rs. 6,000 on

account of interest could not be paid in cash without

sanction but he would transfer the amount in the name of

Gram Panchyat Neemwala from the account of Gram Panchyat

Seonsar by a book entry. The amount of Rs. 6,000 in this

way transferred to the account of Gram Panchyat Neemwala.

Surat Singh accused then went away, while Ram Kishan,

Mussadi and Mohinder Singh went to the office of Mohinder

Singh. At the office Ram Kishan demanded back the receipt

from Mohinder Singh as the amount had not been paid in cash.

Ram Kishan was, however, told by Mohinder Singh that the

receipt was with Surat Singh. Mussadi PW was then sent to

call Surat Singh but the latter declined to come. Mohinder

Singh told Ram Kishan that he need not worry. Mohinder

Singh also wrote the word "Cancelled" on the counterfoil PI.

Mohinder Singh further promised to get the original receipt

back from Surat Singh. Ram Kishan and Mussadi then came

back to the village. Some days later a fresh election was

held and Mehar Chand became the Sarpanch of Neemwala

Panchyat.

According further to the prosecution case, about a month

after the fresh elections Ram Kishan learnt from an overseer

of Block Samiti Chika that Surat Singh had withdrawn the

amount of Rs. 50,000 from the bank and was giving out that

he had paid that money to Ram Kishan and got a receipt from

Ram Kishan for that amount. Ram Kishan at first did not

attach much importance to that talk but when the rumour

persisted, Ram Kishan learnt on enquiry that the amount had

already been withdrawn by Surat Singh accused some months

earlier. Ram Kishan then made a complaint to the District

Magistrate Karnal on June 12, 1964 praying that a case might

be registered against the accused under sections 120B, 409,

467, 468 and 471 Indian Penal Code. A case was thereafter

registered against the accused.

During the investigation of the case it transpired that an

amount of Rs. 46,875 which was lying in deposit with the

Reserve Bank of India in the account of Gram Panchyat

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Seonsar was sent on July 12, 1963 by bank draft to Surat

Singh. The aforesaid amount was credited in the account of

Surat Singh with the Co-operative Bank Kaithal

523

on July 18, 1963. The same day, i. e. July 189 1963 Surat

Singh withdrew the amount of Rs. 46,875 from the bank by

means of a cheque. It further transpired during the

investigation that receipt DA which was got signed from Ram

Kishan was for an amount of Rs. 46,875 and that the said

receipt before the date July 18, 1963. Writing marked A

was also made on copy DR of resolution DB/1. The writing

was as under:

"Rs. 46,875 received.

Receipt accordingly issued.

Thumb Impression, Ram Kishan

Sarpanch, Neemwala

18-7-63."

The charge which was framed against Surat Singh was that he

had committed criminal breach of trust in respect of Rs.

46,875 while that framed against Mohinder Singh was that he

had abetted the commission of the above offence. There were

also charges against the two accused about their having

forged the writing& purporting to be receipts issued by Ram

Kishan in respect of the amounts of Rs. 46,875. Surat Singh

was further charged for keeping in his possession the forged

receipts for fraudulent and dishonest use of the same.

At the trial Surat Singh accused, admitted that a sum of Rs.

of village 844 had been received as compensation for

acquistion of the land age Ramgarh Ror. Surat Singh further

admitted that out of that amount, Rs. 50,000 had been

deposited n the Reserve Bank of India. it was not disputed

by Surat Singh that the Gram Panchyat Seonsar had been split

into two Panchyats. According to Surat singh, he withdrew

on July 18, 1963 Rs. 46,875 found due on the basis of

deposit certificate of the value of Rs. 50,000 and he paid

the same amount to-Ram Kishan PW as per receipt Ex. A. on

DU as well as the official receipt DA. Surat Singh denied

having gone to the office of Mohinder Sin on December 13,

1963.The allegation that the receipts were

fabricated or that any amount had been misappropriated by

Surat Singh were denied by him.

Mohinder Singh accused admitted having filed a suit as

counsel of Gram Panchyat Neemwala against Surat Singh.

Mohinder Singh denied the other allegations against him

Mohinder Singh expressed ignorance about the withdrawal of

money from the being by Surat Singh on July 18, 1963:

Likewise the allegation that Rath Kishan and Mussadi had

visited his office on 1 December 13, 1963 was denied by

Mohinder Singh. Mohinder Singh also denied that the word

"Cancelled" on counterfoil PI of receipt DA was in his hand.

The trial Court, as mentioned earlier, accepted the

prosecution allegations and convicted and sentenced :he two-

accused as above. On appeal the High Court affirmed the

judgment of the trial court.

524

In a peal before us Mr. Nuruddin, learned council for the

appellants has taken us through the evidence on record and

has contended that the amount of Rs. 46,875 after being

withdrawn from the bank On July 18, 1963 was paid by Surat

Singh to Ram Kishan. It is further contended that Ram

Kishan instead of accounting for 'that amount has falsely

involved the two accused in this case. As against that,-

Mr. Goswami on behalf of the state has supported the

judgments of the High Court and the trial court and has

urged that no case has been made for interference with the

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view taken by those courts.

We have given the matter our consideration and find that

there are glaring infirmities in the prosecution case and as

such, it is not possible to sustain the conviction of the

accused. It is in the evidence of Kitab Singh (PW 4) who

was posted as an official in the Kaithal Co-operative Bank

that on July 18, 1963 Surat Singh withdrew the amount of Rs.

46,875 from that bank after that amount had been transferred

from the Reserve Bank of India New Delhi. The accused have

brought on the record receipt DA., It is a printed receipt

in Hindi in the prescribed form. The necessary particulars

have been filled in this receipt. The receipt is dated July

18, 1963 and according to it, Rs. 46,875 were received by

Ram Kishan PW from Surat Singh Sarpanch Seonsar. This

receipt admittedly bears the signatures of Ram Kishan in

Landa character and also bears the seal of Gram Panchayat

Neemwala. In addition to receipt DA, the accused have

produced another receipt about the payment of Rs. 46,875 by

Surat Singh to Ram Kishan. This receipt is on copy DB of

resolution DB/1 which had been passed by Gram Panchayat

Neemwala on May 14,1963. Ram Kishan PW was authorised by

this resolution to re the amount of Rs. 50,000 which. had

been deposited in the Reserve Bank of India and to issue a

receipt after receiving that amount, Copy Ex. DB is

admittedly in the hand of Mukand Lal (PW 13), who was the

Secretary of Panchayat Neemwala and is signed by him. The

receipt is in the form of writing A wherein it is recited

that Rs. 46,875 had been received by Ram Kishan and he had

also issued a receipt in token of his having received that

amount. The writing is dated July 18, 1963. The accused

examined Gian Parkash Sharma (DW 3) Finger Print Expert,

whose evidence shows that the thumb impression on writing

marked A tallied with the admitted thumb impression of Ram

Kishan PW. Ram Kishan PW also did not deny that the thumb

impression underneath writing marked A was his own.

According to him, the thumb impression might be his own.

There is an addition evidence on the record that the writing

marked A was in the hand of Chaudhry Daryao Singh, who was

the Manager of Co-operative Bank in July, 1963. Chaudhry

Daryao Singh is now dead, but the fact that the writing

marked A on Ex. DB is in the hand of. Chaudhry Daryao

Singh is proved by the testimony of Kitab Singh'(PW 4), who,

was incharge of the Co-operative Bank, as well as by that of

Nihal Singh (DW 1), who is a first cousin of Daryao Singh

deceased and is familiar with his handwriting. The receipt

DA as well as the writing marked A on which were signed and

thumb marked by Ram Kishan PW show that Surat Singh

immediately after withdrawing the amount of

525

Rs. 46, 875 from the Co-operative Bank on July 18, 1963

paid that amount to Ram Kishan PW. The case of the

prosecution is that though Ram Kishan issued those receipts,

he did not receive the amount of Rs. 46,875. It is alleged

that advantage was taken of the illiteracy of Ram Kishan and

a. trick was played upon him by giving him the assurance

that those writings related to the amount of Rs. 6,000. It

is further alleged that though the two receipts bore the

date July 18, 1963, they were in fact prepared on December

13, 1963. The prosecution in support of the above

allegation has examined Ram Kishan (PW 1) and Mussadi (PW

2). We find ourselves unable to accept the statements of

Ram Kishan and Mussadi in this respect. Oral evidence which

runs counter to an admission contained in writing signed by

a party in the very nature of things is a very weak piece of

evidence and cannot be accepted without a grain of salt. It

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seems difficult to believe that Ram Kishan signed the

official receipt as well as the other receipt on copy DB of

the resolution without receiving the amount in question.

Even if Ram kishan knew only Landa character, he could not

be unaware of the fact that receipt Ex. DA was not for an

amount of Rs. 6,000, in which sum there are only four

numerals, but for a much bigger amount consisting of five

numerals.

There is another circumstance which militates against the

case of the prosecution that it was sometime in 1964 that

Ram Kishan came to Know that a trick had been played upon

him and that he had been made to issue on December 13,

1963 a receipt dated July 18, 1963 for an amount of Rs.

46,875 without receiving that amount. The official

receipt book from which receipt DA had been issued remained

with Ram Kishan when he returned to his village after

receipt DA had been handed over to Surat Singh. The

said receipt book contained counterfoil PI of receipt DA

which had been handed over to Surat Singh. The trial court

has found that the said counterfoil bore the date July 18,

1963 and was for an amount of Rs. 46,875. Ram Kishan must

have shown that counterfoil to the Secretary of the Gram

Panchayat or some other literate person after his return

to the village and, as such, could not have remained

unaware of the fact that the receipt which he had issued

was dated July 18, 1963 and was for an amount of Rs. 46,875.

There was all the more reason for Ram Kishan to show the

counterfoil to someone because, according to him, he had

insisted upon obtaining a writing regarding the

cancellation of the receipt, counterfoil of which was PI. It

is difficult to believe that Ram Kishan after coming

to know on December 13, 1963 that a receipt of Rs.

46,875.dated July 18, 1963 had been obtained from him would

have kept quiet for a number of months thereafter. The

counterfoil PI when produced in court by Ram Kishan shows

that the date July 18, 1963 had been scored off and

contained the. date December 19, 1963. Likewise, the amount

of Rs. 46,875 had been scored off and in its place, the

amount of Rs. 6,000 had been mentioned in the counterfoil.

The scoring off of the date and the amount mentioned on the

counterfoil Ex. PI and their substitution by the new date

and amount must plainly have been done by someone at the

instance of Ram Kishan. If the conscience of Ram Kishan was

clear, it is not explained as to why he

526

got the date and amount scored off and got inserted another

date and amount. Ram Kishan may be illiterate but there

must be a limit up to which the benefit of illiteracy can be

extended to him. The fact that Ram Kishan is illiterate

cannot induce the court to ignore the infirmities in his

evidence or to fill in lacunae in the prosecution case.

In any case, this fact would not justify the benefit of the

doubt being given to the prosecution, instead of to the

accused.

An attempt was made by the prosecution to show that the

receipt book from which receipt DA was issued had been

purchased on October 24,1963 from Harish Chander (PW 10), as

per cash memo PWI/D. This cash memo, however, relates to

the sale of receipt book No. 9. There can be hundreds of

such receipt books and it is admitted by Harish Chander that

he cannot say whether the cash memo relates to the receipt

book from which receipt DA had been issued or to some other

receipt book. It, therefore, cannot be said to have been

proved that receipt book from which receipt DA was issued

had been purchased on October, 1963.

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There are also some other circumstances which create a doubt

about the correctness of the prosecution allegations. It is

admitted by Ram Kishan PW that long before he made a

complaint to the District Magistrate, he came to know that

Surat Singh was representing that he had paid the amount of

compensation which was lying in deposit with the, Reserve

Bank of India to Ram Kishan and that Surat Singh was in

possession of receipt for the payment of that amount. Surat

Singh also mentioned in a suit brought by him in August 1964

against Ram, Kishan that he had paid the amount of Rs.

46,875 to Ram Kishan as per receipt dated July 18, 1963. It

would, therefore, follow that Surat Singh has always been

taking the stand that he had paid the amount of Rs. 46,875

to Ram Kishan on July 18, 1963 as per receipt issued by the

latter and that the plea taken by him at the trial was not

the result of an afterthought.

Another fact which may also be mentioned in the above

context that a suit was brought in September 1962 by Ram

Kishan PW on behalf of Gram Panchayat Neemwala against Gram

Panchayat Seonisar though Surat Singh accused for rendition

of account. in,respect of the assets of Gram Panchayat

Neemwala. In that suit the plea of Surat Singh was that the

account between the parties had been settled. Evidence was

also led by Surat Singh to that effect. The court accepted

this evidence and held as per judgment dated October 19,

1963 that the accounts between the parties had been,settled.

The, plaintiff's suit was accordingly dismissed, In the face

of that finding of the civil Court, it would appear to be

incongruous to convict Surat Singh on the basis that the

amount of Gram Panchayat Neemwala was still due from him.

5Z7

We thus find that the prosecution case suffers from glaring

infirmities. In fact, there are some circumstances which

lend credence to the plea of the accused. It is, in our

opinion, not possible to sustain the conviction of the

accused on the material brought on record. We accordingly

accept the appeals, set aside the conviction of the accused

and acquit them.

Before parting with this case, we would like to refer to one

aspect. A huge amount belonging to the Gram Panchayat

Neemwala is alleged to have been misappropriated by someone.

The case of the prosecution is that misappropriation of the

amount was facilitated by the illiteracy of the Sarpanch of

the Gram Panchayat. It may, therefore be necessary that

some salutary directions are issued or rules, made so that

because of the illiteracy of a Sarpanch the funds of the

Panchayat are not embezzled or used for any purpose other

than that of the Panchayat.

P.B.R.

Appeals allowed

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