K. S. LODHA, J. - (1.) SOHAN Lal was convicted under section 409 I. P. C. and sentenced to six months' R. I. and a fine of Rs. 200/- by the learned Chief Judicial Magistrate, Churu by his judgment dated 3. 5. 79 and his appeal has been dismissed by the learned Sessions Judge, Churu on 20. 7. 79. He has now come up in revision.
(2.) THE brief facts leading to this revision may be stated here. Some green 'khejadi' trees were found lying cut at the lime kiln of Goru Ram P. W. 1 and a report in this respect was made to the 'panchayat', whereupon a case under section 379. I. P. C. was got registered against Goru Ram with the police Goru Ram's plea in that case was that he had cut those 'khejadi' trees after having purchased them from the patwari, the present accused Sohan Lal on payment of Rs. 125/- and he produced a receipt to that effect before the police It appears that the police accepted this version of Goru Ram and exonerated him but registered a case under section 409 LP C. against the present petitioner Sohan Lal on the ground that being a public servant he had failed to deposit Rs. 125/- which he had received on account of the sale of the 'khejadi' trees to Goru Ram with the State Government and had thus embezzled the amount After investigations a challan was put up against the accused Sohan lal before the learned Munsif & Judicial Magistrate, Churu. When the statement of the accused Sohan Lal was recorded by the learned Magistrate on 3. 2. 77 before framing the charge, the accused stated that the receipt produced by Goru Ram, of course, bore his signatures but he had not issued this receipt but had only signed a blank paper and affixed his seal on it because a teacher Mohan Ram had request-ed him to issue a certificate in favour of one Pushparaj, a student who lived with the accused so that Pushparaj may be able to get scholarship. He had issued a certificate in this respect but Mohan Ram had further asked him to give a blank signed paper so that if the certificate issued by him was not found proper he may write out a proper certificate on that signed paper. When the charge under section 409 was framed against him on 4. 5. 77, he denied the charge and claimed to be tried. THEreupon the prosecution examined as many as 12 witnesses and produced the receipt Ex. P. 1 and some other documents. THE accused in his statement under section 313 Cr. P. C. denied the prosecution story and reinter-ated the stand taken by him in his earlier statement before charge. He also produced one Megha Ram in support of his plea that the receipt had been scribed on an already signed blank paper. THE learned Magistrate after considering the material on record convicted the accused petitioner and sentenced him as aforesaid and his appeal also failed before the learned Sessions Judge. Hence this revision. I have heard the learned counsel for the petitioner and the learned P. P. and have gone through the record. It is contended by the learned counsel for the petitioner that the case against the petitioner is a false and fabricated one and the courts below have not been able to properly appreciate the facts and have drawn improper inferences. He urges that the material question for consideration was whether Rs. 125/- had been paid to the accused Sohan Lal by Goru Ram and whether a receipt in this respect had been issued to Sohan Lal to Goru Ram. The mere fact that receipt Ex. P. 1 bears the signatures of the accused Sohan Lal is no proof of these facts. Sohan Lal had admitted his signatures on this receipt and had come forward at the very first occasion with an explanation that he had issued a signed blank paper to Mohan Ram P. W. 4 the teacher, in order to utilise the same for preparing a certificate in favour of Pushparaj to enable him to obtain scholarship. In these circumstances it was the duty of the prosecution to establish beyond doubt that the receipt which had been scribed on Ex. P. 1 was really scribed at the instance of the accused and he had signed the same after the receipt had been scribed and that he had not signed any blank paper. The prosecution has utterly failed to establish this and, therefore, the conviction of the petitioner is altogether improper and ill founded. I find considerable force in this contention. The more proof of the signatures on the receipt of Ex. P. 1 or the admission of the signatures by the accused does not prove the receipt Ex. P. 1 unless it is further established that that receipt had been scribed by the accused or by some one at his instance and that he had signed the receipt after it had been scribed. Unfortunately, the prosecution has not at all produced any evidence to show that this receipt had been thus scribed at the instance of the accused and had been signed by him after it had already been scribed or written. It is not the case of the prosecution that the receipt had been scribed by the accused himself. A bare perusal of the receipt Ex. P. 1 also leaves no room for doubt that the receipt had been scribed by some one else and not by the accused but that person who had scribed the receipt Ex. P. 1 has not been produced by the prosecution, on the other hand, that person has been produced by the defence as D. W. 1 Megha Ram. Megha Ram has clearly stated that he had scribed the receipt in absence of the accused and over the signature and the seal of the accused which were already there on the blank paper. He further stated that he had done so at the instance of Mohan Ram P. W. 4 and Suraj Ram P. W. 3 in order to get his father-in-law Goru Ram exonerated from the charge of theft of the 'khejadi' trees. He further stated that at the first instance he had declined to scribe the receipt on a blank signed paper but thereafter he had to scribe the receipt on it under the threat of Surja Ram etc. He further explained that Mohan Ram had brought the draft of the receipt and he wrote it out on Ex. P. 1 over the signatures of Sohan Lal. The fact that the prosecution has not produced the scribe of the receipt and the scribe has been produced by the accused gains further importance on account of the fact that this scribe Megha Ram is none else than the son-in-law of Goru Ram. It is an admitted case of the prosecution that Goru Ram was involved in the case of theft of the Khejadi trees and he was exonerated in the matter only on his producing the receipt Ex. P. 1. The fact that this receipt had been scribed by Megha Ram D. W. 1, further stands corroborated from the statement of Goru Ram himself as Goruram states that the writing of the receipt Ex. P. 1 appears to be in the hand of his son-in-law Megharam. Therefore, the lapse on the part of the prosecution to produce the scribe of the receipt gives rise to a very strong suspicion and presumption against it and the accused is certainly entitled to the benefit thereof. Here the accused has not only created a reasonable suspicion about the correctness of the prosecution story but has as a matter of fact proved beyond doubt that the receipt had not been issued by him but he had only given a signed blank paper to Mohanram, that paper appears to have been utilised for the preparation of Ex. P. 1 in order to obtain the exoneration of Goruram from the charge under S. 379 I. P. C. This fact that the receipt had not been issued by the accused but had been prepared as aforesaid, is also corroborated from other circumstances and those circumstances also falsify the prosecution story. In this connection a reference may be made to the statement of Goru Ram, who stales that the receipt Ex. P. 1 had been brought by Surja Ram Jat and he does not know from whom he had got it written. He further states that when he enquired from the patwari i. e. the accused Sohan Lal, he told him that he did not know who had written this receipt but he admitted his signatures on it. However, Surja Ram P. W. 3 altogether denies that he had brought this receipt and delivered it to Goru Ram. Therefore, the very circumstances in which this receipt came into existence and further came to the hand of Goru Ram are highly suspicious. Still further to add to this suspicion Goru Ram states that he had shown this receipt to the Sarpanch at the time when the enquiry was made by the Sarpanch as to how Goru Ram had obtained the Khejadi trees but Multana Ram P. W. 8 clearly states that Goru Ram had not at all shown to him any receipt and that he had not seen the receipt executed by Sohan Lal till the day he come to the witnesss box. As a matter of fact, the very fact that Rs. 125/- had been paid by Goru Ram to Sohan Lal is also not established. The only evidence in this respect is of Goru Ram P. W. 1 and he certainly does not appear to be a reliable witness at all. I have already pointed out the contradictions in his statement and those of Surja Ram and Multana Ram. Apart from it, a very strong suspicion arises against the prosecution as the two witness Rugha Ram and Shera Ram, who were alleged to be present when Rs. 125/- were paid by Goru Ram to Sohan Lal, as has been stated by Goru Ram himself, have not been produced and the reason why those two very material witnesses have been with held, has not been put forward by the prosecution.
(3.) THE learned sessions Judge has also observed that Goru Ram does not appear to be a truthful witness and has tried to help the accused. It is rather surprising that learned Sessions Judge has placed reliance upon the statement of Goru Ram despite the fact that he has not treated him as a truthful witness and no corroboration whatsoever is coming forth to corroborate his evidence THE Learned Session Judge was, therefore, clearly wrong in placing reliance upon, such a witness in order to arrive the conclusion that Rs. 125/- had been paid by Goru Ram to Sohan Lal for the sale of the Khejadi trees. It will not be out of place to mention here that the very fact of Goru Ram purchasing Khejadi trees from the patwari appears to be unbelievable and almost improbable because Goru Ram himself stated that he knew that it was the panchayat who could have sold the Khejadi trees. It is not easy to understand that despite knowing this legal position he would have purchased the Khejadi trees from the patwari who was not authorised to sell the same. It is further most surprising that in these circumstances he would not have obtained the receipt from the patwari himself but would have obtained it through the agency of Surja Ram as stated by Goru Ram and which fact it self has been denied by Surja Ram. Therefore, looked at from any angle it appears that the prosecution has utterly failed to establish that Goru Ram had paid Rs. 125/- to Sohan Lal as the sale price of he Khejadi trees. On the other hand, it further appears that in order that Goru Ram may be exonerated under section 379 I. P. C. a forged receipt was prepared on a blank paper signed by the accused Sohan Lal in the circumstances pointed out by the accused in his statement and established beyond doubt by the evidence of Megha Ram. The Learned Sessions Judge has wrongly discarded the evidence of Megha Ram on mere surmises and conjectures. He has observed that Megha Ram could not have scribed this receipt at the instance of Surja Ram or Mohan Ram because these witnesses have denied this suggestion in their cross-examination and that there was no previous enmity between Sohan Lal, Surja Ram and Mohan Ram in order to falsely implicate him. To say the least, these reasons are wholly without substance. In the first place, when Mohan Ram and Surja Ram themselves are not reliable witnesses, the more fact that they denied certain suggestions regarding the circumstances in which Megha Ram had scribed Ex. P. 1, the statement of Megha Ram cannot be discarded, Megha Ram is the son-in-law of Goru Ram and was interested in getting him exonerated in the case under section 379 and, therefore, he could have fallen to the treat given or temptation to him by Surja Ram and Mohan Ram and may have scribed the receipt Ex. 1, on a paper already signed by Sohan Lal. The fact that there was no previous enmity between Surja Ram, Mohan Ram and the accused Sohan Lal is also not wholly correct, inasmuch as it does appear that Surja Ram had earlier filed a complaint against Sohan Lal before the S. D. M. for his illegal cultivation in the village and so far as Mohan Ram is concerned, he appears to have been on good terms with Sohan Lal earlier but later there was some bitterness between them. The Cross-examination of Mohan Ram clearly goes to show that he wants to suppress his earlier intimacy with Sohan Lal and their falling out later. The fact of their earlier intimacy has clearly been deposed to by Goru Ram. He states that he had seen Mohan Ram visiting Sohan Lal very often. The Learned Sessions Judge has further observed that it does not stand to reason that Surja Ram and Mohan Ram who themselves had involved Goru Ram in the case of theft of the Khejedi trees would have tried to get him exonerated and, therefore, the defence put forward by the accused, according to him could not be relied upon but I am unable to agree with him. Instances are not lacking where complaints are lodged by people against other and later on they are compromised and the witness turn hostile. Therefore, it cannot be said to be improbable that Surja Ram and Mohan Ram who earlier tried to involve Goru Ram in the theft case would not have come to his rescue by getting the receipt Ex. P. 1 prepared. They may be playing a double game. ;