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PETITIONER:

STATE OF ANDHRA PRADESH

Vs.

RESPONDENT:

Y. BASAVADEVUDU AND ANR.

DATE OF JUDGMENT26/03/1992

BENCH:

KASLIWAL, N.M. (J)

BENCH:

KASLIWAL, N.M. (J)

KULDIP SINGH (J)

CITATION:

1992 SCR (2) 344 1992 SCC (3) 30

JT 1992 (2) 399 1992 SCALE (1)730

ACT:

Criminal Law :

Indian Penal Code, 1860 :

Sections 409, 467, 471 and 477-A-Embezzlement-

Encashment of fake RBI Demand Drafts in the name of

fictitious persons-Falsification of accounts-Connivance of

Sub-Treasury Officer with other employees-Trial Court

holding accused guilty of offences charged-High Court

acquitting accused by giving benefit of doubt-Whether

justified-Held : prosecution had discharged its burden of

establishing charges levelled against accused beyond

reasonable doubt by unimpeaching oral and documentary

evidence-Duty of accused to produced defence evidence to

establish their innocence especially when facts relating to

payment of huge amount without receiving any advice from

R.B.I. and names and identity of persons who had identified

the payees were within their knowledge-Evidence Act, 1872 :

Section 106.

HEADNOTE:

Respondents Nos. 1 and 2 and PW. 18 were working as

Sub-Treasury Officer, Shroff and Upper Division Accounto-

cum-Double Lock Officer respectively in a non-Banking

Treasury. The State Government ordered the conversion of

the said Treasury into a Banking Treasury by handing over

cash business to a local Bank from a particular date.

However, on the report of respondent No. 1 that the case

chest was not working as the key was stuck-up in the Reserve

Bank of India chest and it was not possible to hand over the

case business on the date ordered by the Government, the

State Government fixed another date, and the conversion

materialised, on the revised date, about a month after the

original date.

After sometime, the Accountant General and also the

regional office of the Reserve Bank of India detected that

seven demand drafts alleged to have been issued by the

Reserve Bank of India were encashed in the Sub-Treasury on

the last two days of its being handed over. It was found

that no such demand drafts had at all been issued by the

Reserve Bank of

345

India for being encashed at the Sub-Treasury in question,

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and that altogether different drafts were issued relating to

other places outside the State, and except the serial

numbers, all other particulars, namely the date, amount,

name of the payee etc. were not at all tallying with the

payment certificate sent by respondent No. 1, the then Sub-

Treasury Officer. It was found that there was an

embezzlement to the tune of Rs. 1,22,500 out of the case of

the Sub-Treasury and all entries with regard to the payment

of such amount and the signatures of the payees in token of

receipts of money were all fake and forged by the accused

persons.

PW. 18 was granted pardon and declared an approver by

the District Magistrate.

The two respondents were charged for offences under

Section 409, 467, 471 and 477-A I.P.C. The prosecution

examined 27 witnesses and produced 113 documents in support

of its case. The respondents denied the charges but did not

lead any evidence in defence.

The trial court held that the prosecution had proved

beyond all reasonable doubt that the two respondents and

PW.18, the approver, together made falsification of the

accounts by writing false entries in the relevant registers

as if some payments were made on the two dates in question

to the fictitious persons whose names were mentioned in the

payment register and other registers, and that both the

accused persons and PW.18 connived in making false entries

with dishonest intention of covering up of misappropriation

of the public funds committed by them to the tune of Rs.

1,22,500. According it found that the respondent were

guilty of the offences under Section 409, 467, 471 and 477-A

I.P.C. It acquitted the approver of all the charges

levelled against him.

On appeal, the High Court acquitted the respondents on

the ground that the prosecution had failed to prove the case

beyond reasonable doubt, and that though a huge amount had

been embezzled, nevertheless it would not be proper to

convict the accused when doubt was cast and benefit of doubt

had to be given to the accused.

Allowing the appeals of th State, this Court,

HELD : 1.1 The High Court totally misdirected itself

and did not go deep into the matter, nor analysed the

clinching oral and documentary

346

evidence produced by the prosecution and gave benefit of

doubt to the respondents in a superficial manner. It did

not deal with the detailed reasons given by the trial court

and ignored the almost admitted facts and circumstances of

the case. The accused persons had not received any demand

drafts from the R.B.I. and all the entries in the relevant

registers at the Sub-Treasury regarding payment of seven

demand drafts amounting in all to Rs. 1,22,500 are fake,

false forged and the accused persons were the authors of

such entries. The prosecution has discharged its burden of

establishing the charges levelled against the accused

persons beyond any manner of doubt and the findings and

conclusion drawn by the trial court and the conviction and

sentence awarded by it are upheld. [350H, 357A-H]

1.2. It is clearly proved on record that the real and

genuine demand drafts were Exhibits P.82 to P.88 issued from

the regional office of the Reserve Bank of India and the

same were not drawn to be payable at Sub-Treasury in

question or at any other Sub-Treasury situated in the State.

The amounts, the dates and the payees were entirely

different from those demand drafts which have been entered

and shown encashed from the said Sub-Treasury. Since the

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respondents had taken the stand that the payments or

encashment of the demand drafts and the entries found the

Exhibits P.2., P.3, P.5, P.6, P.8 and P.9 were all correct,

and it may be that fake or spurious or bogus Reserve Bank of

India demand drafts might have been presented by the payees,

it was necessary for them to disclose the identity of the

person who identified the payees at the time of encashment

of the fake drafts. Admittedly, no advice for payment of

the demand drafts had been received before the encashment of

the demand drafts and even the alleged demand drafts after

payment are not available on the record and the respondents

took a false stand that they sent the paid drafts to the

office of the Accountant General. Indisputably the amount

of Rs. 1,22.500 was withdrawn by the respondents and the

same has been shown to have been paid against fake and

spurious demand drafts to unknown persons. [356C-F]

1.3. The High Court went wrong in throwing the burden

on the prosection to prove that the entries in column 5 of

Exhibits P.8 and P.9 containing the signatures or thumb

impression of the payees was made by the respondents. In

the facts and circumstances of this case, it was totally

wrong to place such burden on the prosecution. The

prosecution has discharged its burden by leading

umimpeaching oral and documentary

347

evidence that no demand drafts were issued from the R.B.I.,

against which payments have been shown on the two dates in

question in th record of Sub-Treasury and the names of the

payees were also of unknown an unidentified persons. The

entries in columns 1 to 4 of Exhibits P.8 and P.9 are

admitted to be correct by the accused persons. These

entries showing the names of the payees and the amount are

proved to be false and incorrect beyond any shadow of

doubt. In this background, it was no longer the duty of the

prosecution to show as to who made the entries in column 5

of Exhibits P.8 and P.9 A.1 had put his signatures on

Exhibits P.8 and P.9 and according to him the payments were

made after getting the identity of the payees verified by a

person well known to him. [356G-H, 357A-B]

1.4. When the payment of a huge amount of Rs. 1,22,500

was being made without receiving any advice from Reserve

Bank of India, it was all the more necessary to make

thorough enquiry regarding the correct identity and

genuineness of the payee. These facts being in the special

knowledge of the respondents, it was incumbent on them to

disclose the names and identity of the person who had

identified the payees and to establish their innocence by

producing such person or the payees in defence evidence.

Section 106 of the Evidence Act clearly provides that when

any fact is especially within the knowledge of any person,

the burden of proving that fact is upon him. [357C-D]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.

384-385 of 1982.

From the Judgment and order dated 11.7.80 of the

Hyderabad High Court in Crl. Appeal No. 459/78 & Transfer

Crl. Appeal No. 700 of 1978.

A.S. Nambiar and Guntur Prabhakar for the Appellants.

Mrs. K. Amareswari, C.S. Srinivasa Rao and B. Kanta Rao

for the Respondents.

The Judgment of the Court was delivered by

KASLIWAL, J. These appeals by grant of special Leave

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are directed against the judgment of the Andhra Pradesh High

Court dated 11.7.1980 in Criminal Appeal Nos. 459 & 700 of

1978.

Y. Basavadevudu (in short `A.1') and S. Subha Rao (in

short `A.2')

348

accused-respondents were tried for offences under Sections

409. 467, 471 and 477-A of I.P.C The learned Assistant

Sessions Judge, Kammam found both the accused persons guilty

for the above offences and awarded various terms of

imprisonment and fine for the aforesaid offences. The

accused persons aggrieved against their conviction and

sentence filed appeals before the High Court. The High

Court by its judgment dated 11.7.1980 gave benefit of doubt

and acquitted the accused persons of all the charges

levelled against them. Fine, if paid, was directed to be

returned to the accused persons. The State of Andhra

Pradesh aggrieved against the order of acquittal has come

before this Court by grant of special leave.

The prosecution story is that A.1 was Sub-Treasury

Officer (hereinafter referred to as the `S.T.O.') and A.2

was working as shroff in the non-banking Sub-Treasury at

Venkatapuram. The said non-banking Sub-Treasury was

converted into a banking Sub-Treasury from 18.6.1973 by an

order of the Finance Department dated 14.6.1973. A.1 who was

working as S.T.O. reported to the then District Treasury

Officer (PW.14) that the key was stuck up in the Reserve

Bank of India chest and as such it was not possible to

convert the Sub-Treasury into a banking Sub-Treasury on the

above date. The Government, therefore, issued another

order and the Sub-Treasury Venkatapuram was converted into a

banking Sub-Treasury in the afternoon of 17.7.1973. After

sometime the Accountant General of Andhra Pradesh at

Hyderabad as well as the Reserve Bank of India office at

Madras detected that seven demand drafts alleged to have

been issued by the Reserve Bank of India were encashed on

16.7.1973 and 17.7.1973 in the Sub-Treasury of Venkatapuram.

It was found that no such demand drafts had at all been

issued by the Reserve Bank of India office Madras for being

encashed at the Sub-Treasury at Venkatapuram. In fact,

altogether different drafts were issued relating to other

place outside the State of Andhra Pradesh and except the

serial numbers, all other particulars, namely, the date,

amount, name of the payee etc. were not at all tallying with

the payment certificate sent by the then Sub-Treasury

Officer (A.1). It was found that there was an embezzlement

to the tune of Rs. 1,22,500 out of the cash of the Sub-

Treasury and all entries with regard to the payment of such

amount and the signatures of the payees in token of receipts

of money were all fake and forged by the accused persons.

It may be stated that PW.18 Sh. N. Venkata Swamy who was

working as Upper Division Accountant-cum-Double Lock

Officer, in the Sub-Treasury Venkatapuram at the relevant

time was granted pardon and declared an

349

approver by the District Magistrate.

The prosecution examined 27 witnesses and produced 113

documents in support of its case. The accused persons

denied the charged but did not lead any evidence in defence.

During the course of their explanation recorded under

Section 313 Cr. P.C., A.1 stated that there was no

embezzlement of any public funds and the payments made of

the drafts on 16.7.1973 and 17.7.1973 were genuine payments

and there was no falsification of accounts nor defalcation

of any amounts. A.1 also stated that he sent the said

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demand drafts to the Accountant General of Andhra Pradesh

directly and he later on also sent payment certificates. As

he did not know the payees of such demand drafts, they were

not identified by a person known to him. A.2 also took a

similar stand. Thus, the main defence of the accused

persons was that the payments or encashments of the demand

drafts on the respective dates as found in Exhibits P.2 and

P.3 were genuine. The relevant entries in the Reserve Bank

of India remittance register (Exhibit P.1), relevant

entries in Exhibits P.5 and P.6 in the Sub-Treasury office

number book (Exhibit P.4) and also the entries in Exhibits

P.8 and P.9 in the shroff chitta book (Exhibit P.7) were all

correct and it may be that fake or spurious demand drafts of

R.B.I. might have been presented by the payees, but the

accused persons did not embezzle any public funds on any

dates, much less on 16th and 17th July, 1973.

The Learned Assistant Sessions Judge after elaborate

discussion of the oral and doumentary evidence arrived at

the conclusion that the prosecution had proved beyond all

reasonable doubt that A.1 and A.2 and PW. 18 together made

falsification of the accounts by writing false entries in

the relevant registers as if some payments were made on 16th

and 17th July, 1973 to the fictitious persons whose names

were mentioned in the payment register and other registers.

It was also found that both the accused persons and PW.18

connived in making false entries with dishonest intention of

covering up of misappropriation of the public funds

committed by them to the tune of Rs. 1,22,500. Hence the

Learned Assistant Sessions Judge found both the accused

persons guilty for the offences under Sections 409, 467, 471

and 477-A I.P.C. The Learned Assistant Sessions Judge also

held that after having gone through the evidence of PW.18

it was quite clear that he had not violated any of the

conditions of pardon given to him and as such he acquitted

the approver of all the charges levelled against him.

350

The High Court as regards PW.1, who was deputed by the

Reserve Bank of India Madras to enquire into the matter,

observed that PW. 1 had stated that he identified the

signatures of A.1 in Exhibits P.2 and P.3 But, having

regard to the provisions of Section 47 of the Indian

Evidence Act, unless and until foundation was laid with

regard to the capacity of this witness to identify the

signatures of the Sub-Treasury Officer, his statement was of

no consequence. It was further observed by the High Court

that even the accused in their statements stated that they

received these drafts and after complying with the

formalities they were encashed and amounts paid to the

respective payees and those drafts were sent as would be

evident from the despatch register. Even Reserve Bank of

India Form No.11 was sent to the office of the Accountant

General and as such they had not committed any offence. The

High Court held that from the evidence of PW.1 alone, it

could not be said that the prosecution had proved all these

entries in the various books to be in the handwriting of

either A.1, A.2 or the approver. As regards the evidence of

the handwriting expert PW.24 the High Court observed that in

the cross-examination PW.24 stated "As the blue enclosures

in Exhibits P.8 and P.9 are different from the received

writing, I did not compare them at all". From the above

statement the High Court observed that so far as column 5 of

Exhibits P.8 and P.9 was concerned, it can safely be said

that the prosecution had not proved the handwriting therein.

It was the duty of the prosecution to have asked PW.24 to

verify the signatures in Exhibits P.8 and P.9 column 5 to

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find out as to whether the handwriting in that column in

those Exhibits was actually handwriting of the accused.

According to the High Court column 5 meant for the

signatures of the payees had not been proved by the

prosecution to be in the handwriting of either A.1 or A.2 to

show that such signatures were of bogus persons. It was

further observed by the High Court that even the

Investigation Officer (PW.26) stated that "the investigation

did not reveal that any amount is misappropriated by A.2 or

PW.18 at all". The High Court ultimately arrived at the

conclusion that the prosecution failed to prove the case

beyond reasonable doubt. Though a huge amount has been

embezzled, nevertheless it would not be proper to convict

the accused when doubt is cast and benefit of such doubt

will have to be given to the accused.

We have heard learned counsel for the parties and have

thoroughly perused the record. In our view the High Court

totally misdirected itself and did not go deep into the

matter, nor analysed the clinching oral and documentary

evidence produced by the prosecution and gave the benefit

351

of doubt to the accused persons in a superficial manner.

The High Court did not deal with the detailed reasons given

by the trial Judge and ignored the almost admitted facts and

circumstances of the case.

Admitted facts of the case are that A.1 was working as

S.T.O., A.2 as shroff and PW. 18 the approver as Upper

Division Accountant-cum-Double Lock Officer in the Sub-

Treasury Venkatapuram at the relevant time. The Government

vide dated 14.6.1973 ordered for the conversion of the non-

banking Sub-Treasury into a Banking Sub-Treasury by handing

over cash business to the local State Bank of Hyderabad on

18.6.1973. This was delayed on the report of the accused

A.1 to the effect that the cash chest was not working as the

key was stuck-up in the chest and it was not possible to do

so on the above date. The Government, therefore issued

another order and the conversion process materialised on

17.7.1973. The accused A.1 and A.2 handed over the cash

balance of R.B.I. chest as per the records on 17.7.1973.

After sometime the Accountant General of Andhra Pradesh at

Hyderabad as well as the Reserve Bank of India Office at

Madras detected that 7 fake demand drafts alleged to have

been issued by the Reserve Bank of India were shown to have

been encashed and paid on 16.7.1973 and 17.7.1973 in the

records of the Sub-Treasury of Venkatapuram.

The details of the seven drafts in all amounting to

Rs.1,22,500 alleged to have been encashed and paid on 16th

and 17th July, 1973 from the Sub-Treasury of Venkatapuram

are mentioned as under :-

------------------------------------------------------------

Ex P.2

R.B.I July -1973

16.7.73 Madras 2.7.73 B.D Sri Edara Ramaiah C-659307

20,328.00 IId./16.7.73

16.7.73 do 3.7.73 B.D. Sri Kothapalli Verraju C-659308

21,785.00 IId./16.7.73

16.7.73 do 3.7.73 B. D. Sri desari Venkata Rao C-659309

18,891.50 IId./16.7.73

16.7.73 do 3.7.73 B. D. Sri Botigam Surya- C-659310

narayan Rao

18,236.00 IId./16.7.73

------------

79,240.50

-----------

Rupess Seventy nine thousand two hundred and forty and paise

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fifty.

------------------------------------------------------------

Ex.P.3

17.7.73 R.B.I. 7.7.73 B.D Sri Vasam Veeranna C-659311

Madras

14,430.50 IId./17.7.73

17.7.73 do 7.7.73 B.D. Sri Gattala Satyam C-659312

13,260.00 IId.17.7.73

17.7.73 do 7.7.73 B.D. Sri Vanga Sani Ranu C-659313

15,569.000 IId./17.7.73

------------

43,259.50

------------

Monthly Total 1,22,500.00

352

The payment of the above drafts is admitted to have

been made by the accused persons and signatures or thumb

impressions of the payees has been shown in the record of

the Sub-Treasury. It has however been proved on record by

the prosecution that no such drafts were at all issued from

the Reserved Bank of India, Madras. Neither, the dates, nor

amount, nor the name of the payees tally with the genuine

drafts issued from the Reserve Bank of India, Madras. The

drafts issued by the R.B.I., Madras were not even payable by

Sub-Treasury Venkatapuram, rather the same did not belong to

any place in the State of Andhra Pradesh. The details of

such drafts are given as under :-

Ex. P.82.dt.28.6.73 D.D No. C.659307 for Rs. 3,106 issued

by P. Manager, R.B.I. Madras, to Sub-

Treasury Officer, Keernur.

Ex. P.83/dt.29.6.73 D.D No. C.659308 for Rs. 875.96 ps.

issued by P. Manager R. B.I., Madras to

the Sub-Treasury Officer, Car-Nicobar.

Ex. P.84/dt.3.7.73 D.D. No. C.659309 for Rs.1,261.65ps.

issued by P. Manager R.B.I. to the Sub-

Treasury Officer, Denkanikottah.

Ex. P.85/dt/6.7.73 D.D. No C.659310 for Rs. 153.55 ps.

issued by P.Manager R.B.I., Madras to

the Sub-Treasory Officer, Denkanikottah.

Ex. P.86/dt.6.7.73. D.D. No C.659311 for Rs. 2,800 issued by

P. Manager R.B.I., Madras to the Sub-

Treasury Officer, Denkanikottah.

Ex. P.87/9.7.73 D.D. No. C659312 for Rs. 52.00 issued

by the P. Manager R.B.I. Madras to the

Sub-Treasury Officer, Car-Nicobar.

Ex. P.88/dt.12.7.73 D.D. No. C. 659313 for Rs. 315.12 ps.

issued by the P. Manager, R.B.I.,

Madras to the Sub-Treasury Officer,

Vayithiri.

The Learned Assistant Sessions Judge after analysing

the oral and documentary evidence produced by the

prosecution considered the explanation given by the accused

persons recorded under Section 313 of the

353

Code of Criminal Procedure, 1973. According to the Learned

Assistant Sessions Judge A.1 had stated that the drafts were

presented by the parties on 16th and 17th July, 1973 and

their signatures were identified by some well known person

on the drafts themselves and they had drawn Rs.1,22,500 from

the R.B.I. currency on 16th and 17th July, 1973 and the

entries were made in the relevant books and the same were

withdrawn in the presence of the approver (PW.18). They

sent R.B.I. Form No.11 along with the paid drafts to the

Accountant General, Hyderabad. A.1 further stated that the

initials in Exhibit P.3 were of himself, Exhibit P.14 was in

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his handwriting and the initials in Exhibits P.12 and P.13

were also made by him. A.2 also stated that no amounts were

embezzled by him or A.1 or anybody and they had sent the

paid drafts directly to Accountant General of Andhra

Pradesh. The payments mentioned in the payment register and

other registers on 16th and 17th July, 1973 were true and

correct. He further stated that the writings in Exhibits

P.100, P.102, P.103,10, 8, 9, 13 were made by himself. The

main contention of the accused person made before the trial

court was that the payments or encashments of the demand

drafts on the respective date as found in Exhibits P.2 and

P.3 which are the relevant entries in the Reserve Bank of

India remittance register (Exhibit P.1) and the relevant

entries in Exhibit P.5 and Exhibit P.6 in the Sub-Treasury

Officer number book (Exhibit P.4) and also the entries in

Exhibit P.8 and Exhibit P.9 in the shroff `chitta' book

(Exhibit P.7) were all correct and it may be that fake or

spurious or bogus Reserve Bank of India demand drafts might

have been presented by the payees, but the accused did not

defalcate any public funds on any dates much less, on 16th

and 17th July, 1973. The trial court considered the

statement of PW.18, according to which the entires with

regard to the payments of the Reserve Bank of India drafts

said to have been made on 16th and 17th July, 1973. The

trial court considered the statement of PW.18, according to

which the entries with regard to the payments of the Reserve

Bank of India drafts said to have been made on 16th and 17th

July, 1973 in all the relevant books of the Sub-Treasury

were made only only on 17.7.1973 at the instance and

suggestion of accused number 1. It was also stated by him

that there were no persons as those mentioned on 16th and

17th July, 1973 in Exhibits P.2 and P.3 as well as Exhibits

P.5, P.6, P.8 and P.9, they were all fictitious and bogus

persons whose names were mentioned in order to give a show

of payments made to certain persons so as to cover up the

shortage of case found in R.B.I. chest on 17.7.1973. The

trial court has observed that it was admitted fact that

whenever a demand draft is issued by the Reserve Bank of

India to particular persons drawn

354

on a particular Sub-Treasury, the concerned Reserve Bank

will send advices in advance and when the demand draft is

presented by the bearer, it has to be verified whether the

advices from the concerned bank is received or not and the

payee has to be identified by the Sub-Treasury Officer and

is the responsibility of the S.T.O. for payment of the money

to the payee and if the payee is not personally known to the

S.T.O., such payee has to bring an attestor, who is known to

the S.T.O. It is also in the evidence of PW.1 PW.14 and

PW.18 that whenever advices are received, they should be

carefully examined and observed. When there is no advice,

the draft cannot be encashed except under special

circumstances or on the satisfaction of the genuineness of

the drafts presented for encashment. The S.T.O. has to

identify the payee also. If the S.T.O. pays without the

advices, he should write immediately to the issuing

authority for sending the advices. In the case of payee to

bring a person known to the S.T.O. for his or her

identification before actual payment is made and after the

payments are made at the end of the same day, the S.T.O.

should enter the paid drafts in the Reserve Bank of India

form No. 11 and dispatch such certificate under certificate

of posting to the Accountant General directly, sending copy

of the same to the District Treasurer. In the present case

according to Exhibit P.12 it is mentioned that the paid

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drafts along with Reserve Bank of India Form No. 11 were

posted to the address of the Accounted General, but the same

were not sent under certificate of posting. The trial court

also took notice of the fact that the alleged posting was

shown to have been done on the next day. It was also clear

from Exhibit P.14 a letter written by S.T.O. (A.1) that he

mentioned therein that he would trace out the records and

submit encashment schedules. It was also clear from the

evidence of PW.1 that the denominations of the currency

notes found in Exhibit P.17, the the relevant entry in

Exhibit P.15 currency chest book Form T.E.T.1 of the Sub-

Treasury Office Venkatapuram were not tallying with the

denomination of the currency notes mentioned in the double

lock register. The trial court held that it was quite clear

that the serial numbers of the drafts mentioned in the

relevant records of Sub-Treasury Venkatapuram were not in

fact the demand drafts that were issued by the Reserve Bank

of India at Madras and the real demand drafts were Exhibits

P.82 to P.88 which were issued to Sub-Treasury Officers

outside the State of Andhra Pradesh. Thus, it was clear

from the evidence of PW.2, PW.18,

355

PW.20, PW.21 and PW.22 that the real demand drafts that were

issued by the R.B.I. at Madras were neither received nor

encashed at Sub-Treasury Venkatapuram. Even the accused

persons do not say that Exhibits P.82 to P.88 were received

and got encashed by the payees at the Sub-Treasury

Venkatapuram. It was further clear that the entries found

mentioned in Exhibits P.2, P.3, P.5, P.6, P.8, P.9, P.16 and

P.17 were quite incorrect entries and they were made by the

concerned persons who were the authors of those entries so

as to give a colour or show of payments of the amounts to

certain persons to cover up the shortage. The trial court

thus, held that in the above circumstances, when the

payments mentioned on 16th and 17th July, 1973 under the

alleged Reserve Bank of India demand drafts were proved to

be false and bogus and the payees were ficititious persons,

it was the bounden duty of accused numbers 1 and 2 and the

approver to explain for the shortage of Rs. 1,22,500 from

the cash balance of the Reserve Bank of India chest in the

Venkatapuram Sub-Treasury. The trial court took into

consideration that though the accused number 1 had stated in

his explanation that a well known person identified the

payees, but he has failed to give his name, much less,

examined him to prove or substantiate his contention. The

payment register did not show that the payees were

identified by a particular person at the time of relevant

payments said to have been made to them. It has come in the

evidence of PW.18 that there were no such persons whose

names were mentioned in the payment register and all those

persons were fictitious. It was further held by the trial

court that it was quite clear from the documents placed on

record that the S.T.O. had nowhere stated that the advices

were lost or misplaced. Accused number 1 in this regard had

given the explanation that the records in the strong room

had been shifted and replaced for white washing purposes and

the register could not be traced out inspite of diligent

searches and after the March accounts are over, necessary

efforts will be made to trace out the records. The trial

court found that inspite of several letters and reminders

sent to A.1 the record was not made available. The learned

trial court in the end arrived at the conclusion that in

view of the evidence adduced by the prosecution including

the evidence of PW.18 approver and also in view of the fact

that the accused numbers 1 and 2 have admitted that they

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have made the relevant entries in their own handwriting in

the relevant registers, it is proved that accused number 1,

accused number 2 and PW.18 (approver) colluded together and

have defalcated an amount of Rs. 1,22,500 from the cash

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balance of Reserve Bank of India chest in the Sub-

Treasury Venkatapuram and made false entries in the relevant

registers and brought into existence false accounts so as to

cover up the shortage in the cash balance in the Reserve

Bank of India chest of the Sub-Treasury Venkatapuram and

thus they have committed grave offences punishable under

Section 409, 467, 471, and 477-A I.P.C.

We have considered the arguments made by learned

counsel for the parties and have gone through the record.

It is clearly proved on record that the real and genuine

demand drafts were Exhibits P.82 to P.88 issued from the

Reserve Bank of India Madras and the same were not drawn to

be payable at Sub-Treasury Venkatapuram or at any other Sub-

Treasury situated in the State of Andhra Pradesh. The

amounts, the date and the payees were entirely different

from those demand drafts which have been entered and shown

encashed from the Sub-Treasury at Venkatapuram. The stand

taken by the accused persons is that the payments or

encashment of the demand drafts and the entries found in

Exhibits P.2, P.3, P.5, P.6, P.8 and P.9 were all correct

and it may be that fake or spurious or bogus Reserve Bank of

India demand drafts might have been presented by the payees.

In such circumstances it was necessary for the accused

persons to disclose the identity of the person who

identified the payees at the time of encashment of the fake

drafts. It is worthwhile to note that admittedly no advice

for payment of the demand drafts had been received before

the encashment of the demand drafts and the accused persons

took a false stand that they sent the paid drafts to the

office of the Accountant General. It is no longer in dispute

that the amount of Rs. 1,22,500 was withdrawn by the accused

persons and the same has been shown to have been paid

against fake and spurious demand drafts to unknown persons.

We have considered the reasoning given by the High

Court and we are clearly of the view that the High Court

went wrong in throwing the burden on the prosecution to

prove that the entries in column 5 of Exhibits P.8 and P.9

containing the signatures or thumb impression of the payees

was made by the accused person. In our view in the fact and

circumstances of this case, it was totally wrong to place

such burden on the prosecution. The prosecution has

discharged its burden by leading unimpeaching oral and

documentary evidence that no demand drafts were issued from

the R.B.I., Madras against which payments have been shown on

16th and

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17th July, 1973 in the record of Sub-Treasury Venkatapuram

and the names of the payees were also of unknown and

unidentified person. The entries in columns 1 to 4 Exhibits

P.8 and P.9 are admitted to be correct by the accused

persons. These entries showing the names of the payees and

the amount are proved to be false and incorrect beyond any

shadow of doubt. In this background, it was no longer the

duty of the prosecution to show as to who made the entries

in column 5 of Exhibits P.8 and P.9. The S.T.O. (A.1) has

put his signatures on Exhibits P.8 and P.9 and according to

him the payments were made after getting the identity of the

payees verified by a person well known to him. When the

payment of a huge amount of Rs. 1,22,500 was being made

without receiving any advice from Reserve Bank of India,

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Madras, it was all the more necessary to make thorough

enquiry regarding the correct identity and genuineness of

the payee. The above facts being in the special knowledge

of the accused persons, it was incumbent for them to

disclose the names and identity of the person who had

identified the payees and so to establish their innocence by

producing such person or th payees in defence evidence.

Section 106 of the Evidence Act clearly provides that when

any fact is especially within the knowledge of any person,

the burden of proving that fact is upon him.

This leads us to irresistible conclusion that the

accused persons had not received any demand drafts from the

R.B.I. Madras and all the entries in the relevant registers

at Sub-Treasury Venkatapuram regarding payment of seven

demand drafts amounting in all to Rs. 1,22,500 are fake,

false and forged and the accused persons were the authors of

such entries. We are fully satisfied that the prosecution

has discharged its burden of establishing the charges

levelled against the accused persons beyond any manner of

doubt and the findings and conclusion drawn by the trial

court are upheld.

In the result, we allow these appeals, set aside the

judgment of the High Court and affirm the judgment of the

Assistant Sessions Judge, Khammam dated 13th March, 1978.

We uphold the conviction as well as the sentence awarded by

the learned Assistant Sessions Judge. The accused-

respondents shall surrender to the bail bonds forthwith.

N.P.V. Appeal allowed.

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