- (1.) The appellant Fakhruddin has been convicted under sections 465, 467 , 417 , 419, 471 and 120-B of the Indian Penal Code and sentenced in the aggregate to three years' rigorous imprisonment, by the 2nd Additional Sessions Judge, Indore. His appeal to the High Court of Madhya Pradesh (Indore Bench) was dismissed by the judgment under appeal.
(2.) As many as 7 persons (including Fakhruddin) were presented for criminal conspiracy, forgery, cheating and personation. They were alleged to have conspired together to forge applications for permits for corrugated and plain iron sheets in the names of non-existing persons. It was alleged against some of them that in the prosecution of the conspiracy they had committed the Cr. A. No. 1 of 1964 (by Special leave) decided on 13-12-1966 against the decision of M. P. High Court (Indore Bench), dated 26.8-1963, in Cr. A. No. 370 of 1962. n, several offences above-mentioned. Fakhruddin was one such person. The Additional Sessions Judge convicted only three and acquitted the rest. They were Fakhruddin, one Ali Hussain and a cartman by name Anandilal. On appeal, the High Court acquitted Ali Hussain and Anandilal. Thus of the seven original accused, Fakhruddin alone has suffered conviction. Fakhruddin like some of the other accused who have since been acquitted was in the hardware business. The modus employed in the commission of the offences was to present applications for permits to the Civil Supplies 'Officer in fictitious names and to obtain the permits by pretending to be the applicants. Persons desiring to obtain iron-sheets had to apply on printed forms stating their names, addresses and the kind, size and quantity of the sheets desired. The permits were made in triplicate copies and the third counter-foil was required to be signed in token of receipt of the permit. The permit and one extra copy were handed over to the successful applicants, who on presentation of the permit to the Indore Iron and Steel Registered Stockholders Association, received the items mentioned in the permits. Although the iron-sheets were not rationed, the issuance of permits was with a view to keeping a check so that only genuine users might benefit and the passing of the sheets into the black market prevented. As a matter of fact slackness in or absence of verification of the identity of the applicants and their needs, made it easy for some persons in the trade to resort to such devices to obtain supplies with a view to profiteering. On November 28, 1960, Fakhruddin presented at the office of the Association seven permits. Three of these permits are marked Exhs. P. 28, 30 and 35. They were in the names of Munnalal, Devilal and Laxminarayan. These were fictitious names. Before the iron sheets could be weighed and other formalities could be completed, the Police arrived and arrested Fakhruddin. It was then found on investigation that Fakhruddin had presented several applications in other fictitious names and the charge in this case is in respect of five Exhs. P. 13, 15, 16, 17 and 24 which stood respectively in the names of Manak- chand, Surojmal, Hiralal S/o Chotelal, Munnalal, Gulabchand who were all fictitious persons. The prosecution case depends upon the proof of forgery of these applications in the names of fictitious persons with a view to cheating and this necessarily involved the offence of personation. All the offences were said to be part of a big conspiracy in which the several accused in the case were said to be involved. The Sessions Judge, accepting the evidence of a handwriting expert that the writing on the applications and signatures on the permits were made by Fakhruddin held him guilty of forgery. The other offences were also held proved. One other accused Ali Hussain by name was also likewise held guilty and a cartman (Anandilal) was convicted of some of the offences. These two have since been acquitted. In this appeal it is contended, firstly, that the offence of conspiracy cannot now stand because Fakhruddin alone is left and it is not established with whom he conspired; secondly, that the offences of forgery were not established, the High Court having gone only on the testimony of the handwriting expert of whose testimony there was no corroboration either direct or circumstantial; and, thirdly, that the offence of cheating or personation was not made out.
(3.) The first submission must be accepted. THE offence of conspiracy cannot survive the acquittal of the alleged co-conspirators. Fakhruddin cannot be convicted unless there be proof that he had conspired with person or persons other than his co-accused. If all the other accused have been acquitted of the charge of conspiracy, Fakhruddin alone cannot be held guilty. Moreover, the offences charged are such that they could have been perpetrated by different persons acting in the same manner but independently and the large number of petitions does not show per se that there was necessarily a conspiracy. When it must have been known that there was no verification, persons wishing to take advantage need not have conspired for they could act on their own and the similarity of method followed by them does not establish a planned operation by consensus. THE charge of conspiracy must fail and Fakhruddin is acquitted of that charge and the sentence passed under that charge against him is set aside. As to forgery, there is no doubt that the High Court found it entirely on the evidence of the handwriting expert. Mr. Kohli has naturally made a point of this faulty approach and has drawn our attention to several cases of this Court and a ruling of a Divisional Bench of the Bombay High Court. In Ram Chandra v. State of Uttar Pradesh, 1966 AIR(SC) 1888. it is observed that "the expert evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence". In Ishwari Prasad Misra v. Mohammad Isa, 1963 AIR(SC) 1728. held that "evidence given by experts of handwriting can never be conclusive because it is after all opinion evidence". The last observation was obiter because the Court had already found the testimony of attesting witnesses satisfactory. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee, 1964 AIR(SC) 529. it is observed that acting on such evidence it is usual to see if it is corroborated either by clear, direct or by circumstantial evidence. In State of Gujarat v. Vinaya Chandra Chhota Lal Pathi, Cr. A. No. 43 /64, D /- 2-9-1966 (unreported), it is held that "a Court is competent to compare disputed writings of a person with others which are admitted or proved to be his writings. It may not be safe for a Court to record a finding about a person's writing in certain document merely on the basis of comparison, but a Court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of handwriting expert is also relevant in view of section 45 of the Evidence Act but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not". Lastly, in Budragouda Venkangouda Patil v. Basangouda Danappagouda Patil,1938 AIR(Bom) 257. it is held that "comparison of the handwriting by the Court with the other documents not challenged as fabricated, upon its own initiative and without the guidance of an expert and even with it is at all times hazardous and recognizably inconclusive". Mr. Kohli said that these cases establish that the evidence of the handwriting expert is worthless and the Court cannot compare the writing for itself and the only possible evidence should have been of one who either saw Fakhruddin write or was Familier with his writing. We had sent for the writ- (4) Cr. A. No. 43 /64, D /- 2-9-1966 (unreported). ings which are disputed and the writings with which they were compared with a view to observe for ourselves the similarities and differences between the two and to verify whether the conclusions of the handwriting expert were proper or not. Mr. Kohli contended that this was not open to us. We do not agree.;