BHARGAVA, J. - (1.) APPELLANT Kailashnarain who was working as a clerk in the Jodhpur Post Office has been convicted under sec. 467 and for the abetment of offences under secs. 419, 467 and 471 of the Indian Penal Code and sentenced to nine months rigorous imprisonment by the learned Additional Special Judge, Jaipur.
(2.) IT is said that on 31st October, 1956 the appellant fraudulently and his honestly wrote the following endorsement on Exs P2 and P4 (National Saving Certificate) in the denomination of Rs. 5/- and Rs. 100/- respectively knowing that the person drawing the amount of the certificates was not their holder and had not signed them: - "the holder is personally known to me. He has signed in my presence. Sd/ - Kailash" The person who appeared at the post office took the amount of the National Saving Certificates from there after the accused had made this endorsement regarding his identity. The prosecution case is that these National Saving Certificates Ex. s. P2 and P4 belonged to one lady Dr. Miss. S. Rao which she had purchased in the years 1946. Her applications in this regard are Ex. P1 dated 11. 1. 1946 and Ex. P3 dated 8th May, 1946. In 1957, Dr. Miss Rao wanted to encash the National Savings Certificates for purchasing National Savings Plan Certificates but on search she could not find the certificates. Besides these two National Savings Certificates she had other certificates also, in all, of the value of Rs. 505/ -. All these certificates were not found out. She, therefore, informed the Post Master, Jodhpur on 18th July, 1957 vide her application Ex. P. 5 about the loss of the certificates and for issuing of duplicate ones. She was informed in reply by the Post Master, Jodhpur that two of the certificates mentioned in her application namely Exs. P2 and P4 had been encashed on 31st October, 1956. Dr. Miss S. Rao again wrote to the Post Master on 20th July, 1957 that she did not know anything about the National Savings Certificates having been discharged. Thereafter, departmental enquiries were held and as a result the police was informed, who after investigation submitted a challan against the accused. The person who had forged the signatures of Dr. Miss. S. Rao and had encashed the certificates was not traced. The prosecution in support of its case examined Dr. Miss. S. Rao (P. W. 1), Suresh Rao (P. W. 2) who is the adopted son of Dr. Miss. S. Rao (P. W. 1) B. L. Deora (P. W. 3) who was posted National Saving Certificates counter clerk at the Head Post Office, Jodhpur on 31st October, 1956, Rajendra Prasad Singh (P. W. 4) Assistant Government Examiner of questioned Documents, and P. D. Ajmera (P. W. 5) who investigated the case. The accused denied the charge. His plea was that Dr. Miss. S. Rao herself appeared at the counter on 31st Oct. 1956 and he had identified her as the holder of the National Saving Certificates. He also admitted the endorsements made by him on the back of the certificates (Exs. P2 and P4 ). In support of his plea he examined several witnesses to prove that Dr. Miss. S. Rao herself had presented these National Savings Certificates for encashment at the post office on 31st October, 1950 and it was to her that their money was given by the clerk concerned. The learned Additional Special Judge disbelieved the defence evidence and rejected the plea of the accused. He held on the basis of the prosecution evidence that Dr. Miss S. Rao had not encashed the disputed certificates and the signatures on Exs. P2 and P4 were not hers. While deciding point No. 3 regarding the quantum of sentence he has observed that "the offence committed by the accused is serious one but from the facts it appears that he committed it in order to oblige some person without inquiry into the facts as to whether that lady was really Dr. Miss. S. Rao, therefore, he deserves some leniency. " The learned Additional Special Judge did not discuss as to how the two offences of forgery of valuable security and of using as genuine a forged document punishable under sec. 467 and 471 I. P. C. were made out against the accused. It appears from the observations quoted above that the learned judge was not satisfied that the accused at the time of making the endorsement on Exs. P2 and P4 knew that the person encashing the certificates was not Dr. Miss. S. Rao. The learned Judge in the course of the judgment has also observed: - "in this case the trend of cross-examination of Dr. Miss. S. Rao by the learned counsel for the accused shows that some nurse of the hospital might have got them encashed. Dr. Miss. S. Rao too in her statement deposed that the accused asked her as to whether the nurse came to her house frequently. This shows that some nurse had played some mischief and the accused in order to oblige her attested it. " This again shows that the learned judge thought that the accused only wanted to oblige the person who had come to post office for encashing the certificates. Now taking the prosecution evidence, Dr. Miss S. Rao has deposed that she had purchased Exs. P2 and P4 in 1946. She wanted to encash these certificates but on search she found them missing along with other certificates. Thereupon, she informed the postmaster on 18th July, 1957 and received a reply Ex. P6 and then again wrote vide Ex. P7 that she had not encashed these certificates. She has also stated that the accused approached her thrice and even requested her to accept Rs. 147/- and state that the signatures on Exs. P2 and P4 were hers. But she declined to do so. She has stated that she has got an adopted son whose name is Suresh Rao and that she used to keep the National Savings Certificates and her ornaments either in the hospital locker or at her house. The key of the locker or the place where the certificates and ornaments used to be kept remained with her and was only entrusted to her son if any occasion arose and such occasion did arise. She had no suspicion on any body for stealing the certificates. She also admitted that there were some variations in her signatures. She further admitted that she had not deposed during the investigating of the case about the visit of the accused and of his offer to pay Rs. 147/- when cross-examined by the counsel for the accused she made several mistakes in identifying her signatures. She also stated that when accused came to her he told her that he had seen her for the first time. He further told her that a fair lady with spectacles approached him and he had given her the amount after encashment. He also asked whether any nurse came to her house frequently. Suresh Rao (P. W. 2) only stated that the signatures on Ex. P2 and Ex. P4 were not in the hand of his mother. He also stated that the signatures on Exs. P2 and P4 were not made by him. He further stated about the visits of the accused to her mother. B. L. Deora (P. W. 3) stated that he was posted as National Savings Certificates Counter Clerk at Head Post Office, Jodhpur on 31st October, 1956. He stated that the payments with regard to Exs. P2 and P4 were made by him on 31st October, 1956. A lady by the name of S. Rao had come to the counter and asked for the encashment of Exs. P2 and P. 4 on tallying the signatures on Exs. P2 and P4 with the signatures on the record of the Post Office he found a slight difference and asked her to bring some known person for her identification. The lady came again to the counter and the accused who was working in the same post office came to him from inside. The lady was standing outside the counter. When the witness enquired from the accused whether he knew the lady personally to be Miss. S. Rao he replied in the affirmative. Thereupon, the accused made an endorsement on Exs. P2 and P4 marked "x and Y" about the identification of the holder of the certificates. He also stated that he could not definitely identify the lady to whom the payment was made. He admitted that Dr. Miss S. Rao was not got identified by him and that in his statement during investigation he had not stated about the complexion and age of the lady. In reply to court questions the witness stated on seeing Dr. Miss. S. Rao that he could not surely whether she or some other lady had brought the N. S. Certificate. He however stated that Dr. Miss S. Rao appeared to be elderly and didn't possess a fair complexion. In cross-objection he was confronted with his statement during the departmental enquiry and he admitted that he had stated there that he didn't know the holder Smt. S. Rao, nor he could recognise her due to old memory. He could not say what dress was the lady wearing at the time of discharge of the National Savings Certificates. Rajendra Prasad Singh (P. W. 4) stated that the disputed signatures on Exs. P2 and P4 were not of Dr. Miss S. Rao. P. D. Ajmera (P. W. 5) was the investigating officer and was only a formal witness and in cross-examination he admitted that he did not send the specimen writings of Suresh Rao to the handwriting expert which the latter had asked for, for the purpose of comparing his signatures with the disputed ones. From this evidence it is proved that Dr. Miss S. Rao had purchased the National Savings Certificates Exs. P2 & P4 and she was the holder of these certificates. It appears from her conduct as deposed to by her in the statement that when she came to know that the certificates were missing she informed the P. M. concerned about the loss of the same. On receiving the reply that two of the certificates namely Exs. P2 and P4 had been encashed she pursued the matter further and informed the authorities that she had not encashed the certificates. Dr. Miss S Rao is an elderly lady and it appears that she had served at Jodhpur in various capacities as a lady doctor from 1936 to 1959. She has stated that she had not gone to the Post office for encashing the certificates and the disputed signatures on Exs. P 2 and P 4 were not her's. It is true that she had not made any mention about the visit of the accused to her in her statement before the police and there is also some contradiction about the date on which the accused is said to have visited her. It is also true that she admitted that there were slight variations in some letters of her signatures but her statement as a whole cannot be regarded as an incorrect one. To my mind her statement is true and it is established from her statement that she did not go to the post office for the encashment of the certificates on 31st Oct. , 1956 and that the disputed signatures on Exs. P2 and P4 were not hers. The hand-writing expert has also come to the conclusion that the disputed signatures were not of Dr. Miss. S. Rao which supports the statement of Dr. Miss. Rao. But even without his statement, I see no reason to disbelieve Dr. Miss. S. Rao on this point. It therefore follows that it was some one else who presented the certificates for encashment at the post office on 31st October, 1956. According to the prosecution evidence it was some lady of about 35 years having a fair complexion who had encashed the certificates. This appears from the evidence of B. L. Deora (P. W. 3) and from the admissions alleged to have been made by the accused to Dr. Miss. S. Rao (P. W. 1 ). Now it is to be noticed that there is nothing on the face of these National Savings Certificates to show whether the holder of these Certificates was a male or a female. These certificates purport to be in the name of S. Rao who could either be a male or a female. The endorsement about the identification made by the accused is 'he has signed in my presence'. No one can by seeing the certificates discover that their holder is Dr. Miss. S. Rao. How could B. L. Deora (P. W. 3) then enquire from the accused whether he knew the lady present to be Miss S. Rao in the absence of anything to show that the holder of these certificates was a Miss. If that were so how could this witness be satisfied by the endorsement made by the accused which apparently shows that its holder was a male and not a female because in the endorsement the accused had written that 'he has signed in my presence' instead of 'she has signed in my presence'. Therefore, I entertain a serious doubt whether as deposed to by B. L. Deora (P. W. 3) the person who had appeared before him for the encashment of these certificates was a lady. The particulars about the description of the lady that she was of fair complexion and was of about 35 years of age were not disclosed by him either during departmental enquiry or during investigation. This fact seems to have been introduced because of the alleged admissions made by the accused to Dr. S. Rao. But this is immaterial whether the person presenting the certificates for encashment was a male or a female. The question is whether the accused at the time he identified the holder of the certificates and made the endorsement on Exs. P2 and P4 knew that the person was not the holder of these certificates. It is to be borne in mind that these certificates used to be kept either in the hospital locker at the house of Dr. Miss. S. Rao and she used to keep the key with her. It was only when some occasion arose that she gave the key to her son Suresh Rao (P. W. 2 ). It has not been shown that some one acquainted with the accused had an access to the place where the certificates used to be kept and had an opportunity of removing them. It is also not established that the accused knew that Dr. Miss. S. Rao was the holder of the certificates and as stated earlier there was nothing to show on the face of the certificates that she was its holder. The accused or any one else in his position could not have thought on seeing Exs. P2 and P4 that their holder was Dr. Miss S. Rao. It is also not established by the prosecution evidence that the accused made this endorsement for the purpose of some wrongful gain. The prosecution had not been able to trace out the person who got these certificates encashed. The prosecution may have succeeded in proving that some one other than Dr. Miss. S. Rao who was the holder of these certificates personated for her and forged her signatures on Exs. P2 and P4 to get them encashed by cheating the post office but this is not enough for the conviction of the accused. It was necessary for the prosecution to prove further that the accused while marking the endorsement regarding the identity knew that the person presenting the certificates for encashment was not its holder and was personating for the actual holder of the certificates. This fact the prosecution has failed to establish. No fraudulent act on the part of the accused has been proved. The contention of the learned counsel for the State is that the accused in his statement under sec. 342 of the Code of Criminal Procedure had admitted that he knew Dr. Miss. S. Rao from before and it was Dr. Miss. S. Rao who had come to the post office for the encashment of the certificates. On the basis of this statement it is argued that fraudulent intention of the accused is obvious because he knew the holder of the certificates from before and if some one else appeared at the Post office for their encashment he must have known that the person was committing the offence and was personating for the real holder of the certificates. In my opinion the statement of the accused under sec. 342 can be taken into consideration but cannot be used to fill up lacuna in the prosecution evidence. Besides the statement of the accused appears to be false, the reason being that Dr. Miss. S. Rao (P. W. 1) herself stated that when the accused came to her he told her that it was for the first time that he was seeing her. The endorsement made by him on Exs. P2 & P4 further shows that he was not aware at that time that the holder of the certificates was Dr. Miss S. Rao. The accused cannot be punished only on the basis of his foolish statement made before the court. It is for the prosecution to prove the offence against the accused. It may be that the accused acted carelessly or as the learned Judge remarks that he made the endorsement in order to oblige some one but that would not bring the case within the mischief of the offences for which the accused has been convicted. In my opinion the prosecution has failed to bring home the guilt against the accused. The result therefore, is that this appeal is accepted, conviction and sentence of the accused is set aside and he is acquitted. He is in jail and he will be released forthwith. . ;