U. Durga Prasad Rao, J.@mdashThis Criminal Appeal is filed by the Central Bureau of Investigation (C.B.I.) aggrieved by the acquittal recorded by learned Special Judge for CBI Cases, Hyderabad in his judgment dated 31.07.2003 in C.C. No. 9 of 1999 whereunder he acquitted all the six accused of all the charges levelled against them.
2. The factual matrix of the case which led to file the instant appeal, can be stated thus:
a) P.W. 21--Inspector of Police, CBI had on source information registered Ex. P. 118--FIR in Crime No. RC. 11/A/97-Hyderabad on 31.07.1997 against
A1 -- K.V. Ramana Murthy (Branch Manager), Oriental Insurance Company, (OIC) Adoni
A2 -- H.M. Veerabadra Swamy, (Agent for OIC), Adoni
A3 -- Dr. M. Venkatramudu (Asst. Director (A.D) Animal Husbandry.
A4 -- B. Yellamma (Sweeper), Adoni Arts and Science College. Adoni.
A5 -- Y. Rama Rao, Adoni (private person)
A6 -- P. Paramesh, Adoni (private person)
and investigated and laid charge-sheet under Sections 120B r/w 409, 420, 467, 468, 471 of I.P.C. and 13(2) r/w 13(1)(c)(d) of Prevention of Corruption Act (for short "P.C. Act").
b) The grave-men of charge is that A.1 being the Branch Manager of O.I.C. was authorized to accept insurance proposals brought by agents, issue policies and settle claims. While-so, during 1991-94 A.1 and A.2 conspired together to cheat OIC and persuadably, A.1 issued 28 bogus cattle insurance policies in respect of non-existent cattle in the name of fictitious persons in and around Adoni based on fake valuation and health certificates. In furtherance of conspiracy, A.1 and A.2 raised bogus claims on the fictitious insurance policies basing on the bogus death certificates and postmortem certificates issued by A.3 and thereupon A.1 fraudulently settled the claims. He then issued cheques. A.2 opened fictitious accounts in the names of the purported claimants in various banks at Adoni and withdrew the amounts or got the amounts credited in the accounts of the persons with similar names known to him and withdrew the amounts. In 12 instances, A.1 had struck off account payee endorsement on the cheques under his signature, thereby enabled A.2 to withdraw cash.
c) In respect of claim Nos. 93/43, 94/20 and 93/98, the amounts were credited to the Account No. 922 of Andhra Bank, Adoni in the name of K. Narsappa. In the policy and claim documents of 93/43 and 94/20, the thumb impressions of the party are available whereas in the claim No. 93/98, the signature was put by A2 himself in Telugu. Investigation revealed that thumb impression in claim No. 93/43 was put by A2. All the three cheques have been credited to the account of A.2 and subsequently withdrawn.
d) Claim Nos. 93/42 & 93/79 pertains to Policy No. 377095 of Smt. Rajamma W/o. Lakshmanna of Nettakal village, Adoni Mandal but investigation revealed that there was no such person. Thumb impressions on the documents pertaining to both the claims belong to A.2 as opined by the expert.
e) Claim Nos. 93/73 and 93/111 pertains to Policy No. 015833 issued in the name of Narasamma W/o. Naganna of Nettakal Village, Adoni Mandal who was proved to be a non-existent person. The signatures on the documents pertaining to both the claims were forged by A2. The amounts of both these cheques have been withdrawn by A2 by signing as Narsamma.
f) Claim No. 93/102 and 94/24 pertains to Policy No. 015848 issued in the name of M. Dhanappa S/o. Eranna of Nettakal Village, Adoni who is a non-existent person. The signatures on the documents as well as cheque which was altered as bearer cheque by A.1 were forged by A.2.
g) In Claim No. 94/08 relating to policy No. 15869 issued in the name of S. Peera and Claim No. 94/31 pertaining to Policy No. 015778 of C. Santhappa and Claim No. 94/67 pertaining to Policy No. 015786 of U. Thayanna, the signatures have been forged by A.2 and amounts were withdrawn.
h) In Claims Nos. 93/61 and 93/92 in respect of Policy No. 015832 of Narayana S/o. Narsanna of Sambagal Village, who is a non-existent person, cash has been withdrawn by A.2 on the basis of cheques.
i) In Claim No. 94/017 against Policy No. 015856 relating to K. Saraswathi W/o. Govardhan, Alasandagutti. The claimant was a non-existent person. The opinion of the expert could not be obtained on the signatures on the documents but the cheques have been received and deposited by A2 himself.
j) In Claim Nos. 94/04 and 94/43 relating to Policy No. 015849 of B. Eranna S/o. Ramanna of Kothur Village. The claimant was a non-existent person. In claim No. 94/04, account payee endorsement has been struck off by A.1 and cash was withdrawn by A2 from Andhra Bank. All the documents and withdrawal forms have been forged by A2. In claim No. 94/43 cheque has been withdrawn by crediting to a bogus account opened by A2 in the name of B. Eranna with Sree Mahayogi Lakshmamma Cooperative Town Bank Limited, Adoni.
k) In all the above 12 instances, A1 facilitated A2 to withdraw the amounts by striking off the endorsement "Payee''s Account only" on the cheques.
l) Claim Nos. 94/15, 94/46 and 93/104 pertains to B. Yellamma (A.4), the cheques in respect of these claims were credited into A/c. No. 266 of Yellamma in Corporation Bank, Sadapuram. However investigation disclosed that she never owned or did business in cattle and thus cheated the OIC.
m) Claim No. 93/78 and 94/45 are in the name of Y. Rama Rao(A5) against Policy Nos. 377099 and 015854. The documents were signed by Y. Rama Rao who never owned cattle. The cheques were issued by A2 and credited in A/c. No. 7011 of Y. Rama Rao with Corporation bank, Adoni.
n) Claim Nos. 93/112 and 94/34 against Policy No. 015851 in the name of P. Paramesh (A6) of Alasandugutti Village, who is a non-existent person. The signatures of the claimant have been forged by A2 and cheques have been received by A2 but deposited in the A/c. No. 10554 with Canara Bank, Adoni and A/c. No. 6738 with Corporation Bank, Adoni. Investigation revealed Paramesh never owned cattle.
o) Thus in all, the accused have cheated the OIC to a tune of Rs. 1,26,430/-. Hence the charge-sheet.
p) On appearance of accused, the trial court framed charges under Sections 120B r/w 420 of IPC against A.1 to A.6; charges under Sections 468 & 471 of IPC and 13(2) r/w 13(1)(d) of P.C. Act against A.1 to A.3 and conducted trial.
q) During trial, P.Ws. 1 to 24 were examined and Exs. Pl to P266 were marked on behalf of prosecution. No oral or documentary evidence was adduced on behalf of defence.
r) The plea of accused is one of total denial of prosecution case. The trial Court on appreciation of facts and evidence found that the prosecution failed to establish the guilt of the accused for the charges levelled against them and accordingly, acquitted all the accused.
Hence, the appeal by the prosecution.
3. Learned counsel for respondents/Accused filed memo dated 17.12.2012 stating that A.1--K.V. Ramana Murthy and A.4--B. Yellamma died pending appeal. Hence the appeal is abated as against Respondents 1 and 4/A.1 and A.4.
4. Heard arguments of Sri P. Kesava Rao, learned Special Standing Counsel for CBI (Spl. SC) and Sri C.B. Ram Mohan Reddy, learned counsel for respondents/accused.
5. Impugning the judgment, learned Spl. SC submitted that trial Court committed grave error in appreciation of facts and evidence and thereby acquitted the accused. Speaking to the roles of accused he submitted that A1 settled several claims, out of which 27 pertaining to this case were bogus claims. Some cattle insurance policies were obtained in the names of some non-existing persons and A1 conspired with other accused and settled the claims and released the cheques. A2 is concerned, he opened fictitious accounts in various banks and credited those cheques by forging the signatures of fictitious persons and later encashed them. A3 is concerned, he issued bogus health and post-mortem certificates to non-existing cattle and thus conspired with other accused. He further submitted that A4 to A6 who are private persons are concerned, in pursuance of their conspiracy, they allowed A2 to withdraw amounts from the respective banks. He submitted that A4 to A6 have no cattle at all, but they received cheques from the Insurance Company and they allowed A2 to en-cash the amount. The handwriting expert clearly opined that A2 forged the signatures on bank withdrawal form for withdrawing the amount from the fictitious accounts. Learned Spl. SC argued that criminal role of all the above accused was well stated by P.Ws. 1 to 6 and P.W. 20 and their evidence was corroborated by other witnesses. In spite of the cogent evidence touching the roles of all the accused, trial Court failed to appreciate the evidence on record in proper perspective and ultimately acquitted the accused. Highlighting the wrong appreciation of evidence by the trial Court, he narrated certain instances.
a) Firstly he submitted, according to P.W. 20, he investigated the present case on departmental side in the year 1995 and found that all the cattle claims which were paid by A1 under the agency of A2 were false claims and the manipulation and misappropriation are manifest. He argued that in spite of his clear evidence there was no suggestion in the cross-examination that findings in his report were not correct and his report was false. When there is no suggestion, the trial Court should have accepted his evidence as true, sofaras it relates to the culpability of A1 and A2 is concerned. However, the trial Court has not at all considered the evidence of P.W. 20 to fix the guilt of A1 and A2 and thus it amounts to lack of appreciation of evidence of crucial witness.
b) Secondly, he argued that some of the witnesses have deposed about the non-existence of certain policy holders and their evidence was not challenged in the cross-examination. He submitted that for instance, P.W. 8, who is a VAO of Sambagal village deposed that B. Yellamma (A4), Narayana and C. Shantappa are not residents of his village. This witness was not cross-examined. So also, P.W. 12--MRO, Adoni deposed that he verified the names of the persons mentioned in the letter of the I.O. with reference to the Electoral List and except the name of Narsappa S/o. Nagappa of Nettekal Village, the names of other persons are not found. Similarly, P.W. 14-- H. Hari Krishna, V.A.O. of Nettekal village deposed that he verified the persons mentioned in Annexure-I of FIR of Nettekal Village and informed the CBI officers that the persons enquired were not residents of Nettekal Village. So the evidence of P.Ws. 8, 12 and 14 confirm the non-existence of some of the policy holders. In spite of the same, trial Court failed to consider their evidence to come to the conclusion that those policies were in fact bogus, as the policy holders are not in existence. He argued that the trial Court rejected their evidence on a vague ground that those witnesses have not given the descriptive particulars of the persons whose details they have enquired and the records they have verified to come to that conclusion. He vehemently argued that contextually it was obvious that the I.O. referred the particulars of the policy holders and those witnesses also enquired about those persons with reference to the records available with them and furnished the answer. Merely because these witnesses have not specifically mentioned the descriptive particulars of the persons who were referred by I.O. to them for verification, that does not mean that some unconnected persons to this case were referred to them.
c) Thirdly, learned Spl. SC argued that some of the prosecution witnesses have clearly deposed that some of the policy holders did not own the cattle at all. For instance, P.W. 15--V. Ramanujulu the Stores in-charge of Adoni Arts and Science College and co-employee of A4 deposed that A4 did not own any cattle. This witness was not cross-examined by A4 and other accused. Similarly, P.W. 16 a resident of Adoni deposed that he knows A6 and that he does not own any cattle. This witness was also not cross-examined by any of the accused including A6. Learned Spl. SC argued that in view of unchallenged evidence of P.Ws. 15 and 16, it was clear that A4 and A6 did not own any cattle but they obtained policies on furnishing wrong information due to collusion with A1 to A3 and they made false claims to cheat OIC. However, the trial Court rejected their evidence on the flimsy ground that P.Ws. 15 and 16 did not specifically state whether A4 and A6 had no cattle at all the times or at a particular point of time and due to this vagueness their evidence cannot be accepted to decide whether A4 and A5 had cattle or not. He vehemently argued that when P.Ws. 15 and 16 deposed that A4 and A6 do not own cattle and this evidence was not challenged, it should have been safely concluded that they never owned the cattle, but the trial Court unnecessarily created vagueness to an otherwise clear evidence and rejected their evidence.
d) Fourthly, he argued that while appreciating the evidence of P.W. 21 -- I.O. and P.W. 23--Handwriting expert relating to the forgeries committed by A.2 on the cheques of the non-existing claimants, the trial Court committed error in rejecting their evidence on an untenable ground that the specimen signatures of A.2 were not obtained in the presence of independent mediators to lend credence to acts of I.O. Learned Spl. SC vehemently argued that the specimen signatures and handwritings of A.2 were indeed obtained by the I.O. in the presence of independent witnesses and sent for comparison with the questioned handwritings and handwriting expert opined that they tallied and inspite of this, the Court disbelieved the expert''s evidence on the aforesaid baseless observation. He argued that the accused in their cross-examination have not challenged the I.O. to the effect that he did not secure the specimen handwritings of A.2 in the presence of independent witnesses. In fact, they have not challenged the process of sending the specimen signatures and handwritings to the expert. As such, the trial Court should not have entertained any doubt regarding the genuinity and authenticity of the specimen handwritings.
e) He argued that if the weedy objections are sloughed off, the evidence thus left will clearly expose the culpability of all the accused. Finally, he submitted that the evidence of P.W. 20 would show that A.1 deposited the entire mis-embezzled amount with the OIC during departmental enquiry which clearly demonstrates his guilt and confession. The trial Court unfortunately failed to take note of this vital fact into consideration.
He thus prayed to allow the appeal by setting aside the judgment of the trial court and convict the accused.
6 a) Per contra, while supporting the judgment, learned counsel for respondents/accused firstly argued that in an appeal against acquittal undoubtedly, High Court will have full power to reappreciate, review and reconsider the evidence at large to reach its own conclusions. However it cannot be forgotten that the presumption of innocence of accused was reinforced by the order of acquittal passed by the trial Court which should not be normally upset unless the appreciation of evidence by the trial Court is totally perverse. On this proposition, he relied upon the following decisions:
i)
ii)
b) Secondly regarding the merits of the case he argued that the evidence adduced by the prosecution utterly failed to establish guilt of any of the accused and there was no blunder on the part of the trial Court in the matter of appreciation of evidence.
i) He argued that A.1 is concerned, the evidence utterly failed to establish his alleged conspiracy with other accused. The only instances projected showing his culpability are his ordering the claims and his striking off some of the account payee cheques converting them to bearer cheques to enable A.2 to encash them. Learned counsel argued that as a Branch Manager it was the duty of A.1 to pass orders on the claim applications particularly when the claim applications were thoroughly scrutinised and placed before him without noting any objections. Drawing the attention of the Court to the evidence of P.W. 1, learned counsel argued that P.W. 1 deposed that he scrutinised Exs. P.1 to P.26 claims and placed before A.1 for orders and he admitted in the cross-examination that he (P.W. 1) did not entertain any doubt about the genuineness of the Exs. P.1 to P.26 claims. In the light of his evidence, there was nothing wrong in A.1 passing the claim applications. So A.1 cannot be found fault for ordering the claims. Then sofaras striking off account payee endorsement on cheques is concerned, he argued that it was not a rule of the insurance policy that claim amount should be paid under account payee cheque only. When some of the claims had no bank accounts, the A.1 using his discretion had struck off the account payee noting on the cheques to enable the claimants to encash the amount and there was no illegality or irregularity in it.
ii) A.2 is concerned, it was alleged as if he obtained policies in favour of some non-existing persons and got opened bank accounts in their names and obtained cheques from A.1 in their favour and withdrew the cheque amounts by forging their signatures. He argued that the evidence placed on record failed to establish these allegations. Though I.O. claimed that he secured the specimen handwritings of A.2 and sent to the expert for comparison with the questioned handwritings of A.2 on the relevant documents, still, he failed to establish that he obtained the specimen handwritings of A.2 either by the order of Magistrate or in the presence of independent witnesses. Sans this, the alleged specimen handwritings lost their credibility and consequently expert''s opinion also lost authenticity. The trial Court hence rightly rejected the evidence of fingerprint and handwriting experts.
iii) The role of A.3 is concerned, he argued that he allegedly issued bogus health certificates and post-mortem certificates in respect of non-existing cattle pertaining to the claimants. However, Ex. P.56--post-mortem register belied the contention of prosecution as it contained the details of the cattle on which A.3 conducted post-mortem and mentioned the particulars of the policy tag also. The particulars mentioned in the post-mortem report are tallied with the policy particulars maintained by the OIC. Therefore, the evidence clinchingly established the innocence of A3 rather than his guilt.
iv) Then A.4 to A.6 are concerned, the allegation is that they had no cattle but they obtained policies for non-existing cattle with the connivance of A.1 and A.2 and enabled A.2 to encash the policy amounts. Learned counsel argued that the post-mortem register clearly depicted the particulars of the cattle of A.4 to A.6 upon which, A.3 conducted post-mortem. Hence the allegation against A.4 to A.6 also proved baseless. He further argued that though some of the witnesses like P.W. 8, P.W. 12 and P.W. 14 deposed as if some of the claimants were not residing in the respective villages, still their evidence was very vague in the sense that they did not give descriptive particulars of the persons about whom they made enquiries and the particulars of the records they have verified to come to the opinion about their non-existence and so their evidence does not help prosecution.
He submitted that the trial Court on considering the facts and evidence correctly held that the charges are not maintainable and acquitted the accused and hence there are no merits in the appeal. He thus prayed for dismissal of t the appeal.
7. In the light of above rival arguments, the point for determination in this appeal is:
"Whether the judgment of the trial Court is factually and legally sustainable"
8. Point: The precise case of the prosecution is that A.1 being the Branch Manager of O.I.C. colluded with A.2 to A.6 and issued about 28 fake policies in the names of some non-existing persons and when the claims were made on the basis of those polices, A.1 released cheques and struck off account payee noting on about 12 cheques and facilitated A.2 to withdraw the amounts. According to prosecution, A.2 is the agent of O.I.C. who got opened bank accounts in Andhra Bank and Corporation Bank, Adoni in the names of fictitious persons and got the cheques deposited and withdrew the amounts. A.3 was the Assistant Director in the Department of Animal Husbandry, who allegedly issued bogus health certificates for the non-existing cattle to facilitate A.1 and A.2 to issue policies and subsequently, he also issued bogus post-mortem certificates to facilitate claims being filed and cheques issued. A.4 to A.6 who are private persons are concerned, it is alleged that they do not have any cattle but with the connivance of A.1 and A.2, they managed to obtain policies and filed claim petitions and facilitated A.2 to withdraw the amounts.
Briefly stating, as per prosecution all the accused stage managed everything to cheat OIC.
9. The prosecution in order to prove the criminal conspiracy, cheating, forging of documents and misconduct of the public servants, has to prove the following vital ingredients by cogent and convincing evidence:
i) That all or some of the cattle in respect of which policies were issued in fact not in existence.
ii) That all or some of the policy holders were non-existing persons.
iii) That the bank accounts were opened in the name of non-existing persons and cheques were withdrawn by forging their signatures/thumb impressions by A.2.
It may be noted that according to trial Court, the prosecution failed to prove the above vital ingredients. It is an appeal against the acquittal. In the two decisions relied upon by the respondents reported in Bhaskar Ramappa Madar''s case(l supra) and Govindaraju @ Govinda''s case(2 supra), Hon''ble Apex Court enshrined certain principles for the benefit of appellate Court dealing with an appeal against acquittal. As per which, the appellate Court no doubt has every power to re-appreciate, review and reconsider the evidence at-large both on question of fact and law. However, while such re-appreciation and coming to a different conclusion, it must keep in mind that its interference is justifiable only when the judgment of the trial Court suffered perversity in appreciation of evidence but not when there was a mere possibility of conceiving another view. The appellate Court must also keep in mind that the presumption of innocence which was available to accused before the trial Court was reinforced by the acquittal recorded by the trial Court. Thus now it has to be seen whether the judgment of the trial Court suffers vise of perversity in appreciation of evidence to interfere with its judgment.
10. Before analyzing the evidence on the aforementioned vital ingredients, it is pertinent to know the procedure being followed by the O.I.C. to issue polices on cattle. Speaking on the procedure for issuance of cattle policy, P.W. 3--Dr. S. Shankar, Assistant Director, Animal Husbandry deposed that if the animal is insured, the insurance company will issue an "ear tag" with its company emblem and number of the tag. The veterinary doctor will punch the tag on the ear of the animal which can be removed only by cutting the ear. On verification of the ear tag, the animal can be identified with reference to the particulars mentioned on the tag. He also deposed that in case animal dies, the owner will approach the hospital authorities for conducting postmortem. After identifying the animal with reference to its tag they will conduct the postmortem and issue necessary certificate showing the cause of death. The necessary entries will be made in the postmortem report relating to the cause of death.
a) Then P.Ws. 2 and 6 deposed about procedure of settlement of the claims. P.W. 2--the Branch Manager, OIC, Adoni who was the successor of A.1 deposed that whenever a claim is received by the branch, the branch will issue claim form either to agent or development officer or to the party directly. The filled claim forms along with post-mortem report and death certificate will be submitted by the party. He stated that for taking up the claim, the condition precedent is that the policy should be valid and in force. They will verify whether premiums are paid and the claim policy was correct or not. If the branch doubts about the genuinity of the claim, the claim will not be released and investigation will be arranged. He further stated that the Branch Manager of Adoni Branch is the financial authority to settle the claims. Then P.W. 1 who was the Assistant in OIC, Adoni also deposed in similar lines and stated that while processing the claims, scrutiny of post-mortem certificate, veterinary doctor''s certificate, valuation certificate, ear tag will be conducted. If the policy under scrutiny is valid and enforceable one, all the documents will be placed before the Manager who is the final authority to pass sanction order. After sanction is accorded, the discharge voucher will be prepared for the amount of the claim sanctioned. The Branch Manager of the concerned branch is the financial authority to sign, alter or modify the cheques. If a person does not have account, it is the discretion of the Branch Manager to issue open cheque. Then P.W. 6--the Divisional Manager deposed that the Branch Manager is authorized to settle claims up to Rs. 15,000/- and if the claim exceeds that amount, the entire file has to be forwarded to the Divisional Office.
b) The above is evidence on the procedure for issuing cattle policies and settlement of claims. In this backdrop, it has now to be seen whether prosecution established the vital ingredients stated supra.
11. The first vital ingredient relates to issuance of policies in respect of non-existing cattle. If the prosecution case were to be true, the question of conducting post-mortem examination on those non-existing cattle and removing their ear tags and sending along with post-mortem reports by A.3 does not arise. Thus, in my view Ex. P.56--post-mortem register can shed light on this aspect. Hence Ex. P.56 is scrutinised with reference to the policy particulars annexed to the charge-sheet.
So a comparison of the entries in post-mortem register with the policy particulars shows that post-mortem was conducted to all the animals of the policy holders. However in respect of the animals of Smt. Rajamma (vide Claim No. 93/79 pertaining to Policy No. 377095--Ex. P.12) and Sri U. Thayanna (vide Claim No. 94/67 pertaining to Policy No. 015786-- Ex. P.26), there are no entries in post-mortem register but post-mortem certificates are available in the concerned files of the policy holders. Except this minor lapse, Ex. P.56--post-mortem register discloses performance of post-mortem in respect of all the animals. Their particulars are also tallied. In view of this strong evidence, it is difficult to believe the prosecution version that policies were obtained in respect of non-existent animals. Of course, prosecution may make a wild argument that even without conducting post-mortem, some entries might have been made in Ex. P.56 in respect of non-existent animals. However, no iota of evidence is placed to come to such conclusion. On the other hand, Ex. P.56 being maintained in due discharge of the official duties of the Animal Husbandry Department, a presumption of correctness and genuinity can be attached to it u/s 114(e) of Indian Evidence Act. The trial Court also relied upon Ex. P.56 and negatived the contention of prosecution in this regard and the said finding is proved to be correct one. Thus, the first vital ingredient is concerned, it must be said that the prosecution failed to establish the same by cogent evidence.
12. The second vital ingredient is that some of the charge-sheet list mentioned policy holders i.e. Smt. Narsamma, M. Dhanappa, Smt. Rajamma, S. Peera, K. Saraswathi, Narayana, B. Eranna and U. Thayanna etc., are not existing and A.2 forged their signatures and withdrew the cheques.
a) Smt. Narsamma W/o. Naganna of Nettekal Village was issued two policies under Exs. P.9 and P. 16. As per prosecution, A.2 forged the signatures of Narsamma and withdrew the amounts covered by two claims. Prosecution examined P.W. 14 who was the V.A.O. of Nettekal group of villages to prove that she was a non-existing person. P.W. 14 deposed that as per the requisition of CBI, he verified and informed CBI officers that the persons enquired by them were not residents of Nettekal Village. This witness not cross-examined. However, the evidence of P.W. 14 is too vague to conclude about the non-existence of Narsamma. It is not known whose particulars were sought by CBI officers and furnished by this witness. The trial Court rightly discarded his evidence. The trial Court declined to accept handwriting expert''s evidence on A.2 forging the signatures of Narsamma on the ground that there is no evidence to show that the specimen signatures sent to the expert were that of A.2. This aspect will be considered while discussing the next vital ingredient.
b) Then Smt. Rajamma W/o. Laxmamma of Nettekal Village was issued policies under Exs. P.8 and P. 12 and she made claim Nos. 93/42 and 93/79. In her case also the prosecution relied upon the evidence of P.W. 14 to prove her non-existence. The observations made supra in respect of the evidence of P.W. 14 will also apply here. It is alleged, the thumb impressions on the claim files of this lady are that of A.2 and prosecution sought to prove this aspect through the opinion of fingerprint expert. The trial Court refused to accept this evidence on the similar observation that there was no evidence on record to show that specimen thumb impressions sent to the fingerprint expert were that of A.2. This aspect will be considered while discussing the next vital ingredient.
c) Smt. K. Saraswathi W/o. Govardhan was issued Policy No. 015856 (Ex. P.18), Her claim No. 94/017. As per prosecution, she was a non-existent person and A.2 received the cheque relating to this lady and deposited the same in A/c. No. 7134 of Corporation Bank. Prosecution examined P.W. 9-- the Branch Manager of Corporation Bank, Adoni. He only deposed that Ex. P.63 is the account opening form of K. Saraswathi bearing A/c. No. 7134 and her account was introduced by A.2. He further deposed that Ex. P.64 is the credit slip for Rs. 4,000/-. Except that, he has not stated that she was a non-existing person. A.2 being an Insurance Agent who secured policy for Saraswathi, might have introduced her bank account also. As rightly observed by the trial Court, except P.W. 9, the prosecution has not examined any other witness to prove the non-existence of Saraswathi.
d) Sri B. Eranna S/o. Ramanna of Kothur Village was issued Policy No. 015849 (Ex. P.25) and his claims are 94/04 & 94/43 (vide Exs. P.24 and P.25). According to prosecution, he was also a non-existent person and A.2 received cheques relating to his claims and opened bogus account in the name of B. Eranna in Sree Mahayogi Laxmamma Cooperative Town Bank Limited, Adoni (SML Bank) and realised the money. As rightly observed by the trial Court, the prosecution has not examined any person belonging to Kothur Village to prove the non-existence of B. Eranna. It examined P.W. 13--Manager of SML Bank. He only deposed that Ex. P.108 is the specimen signature card of B. Eranna, A/c. No. 3930. He did not state about the non-existence of Eranna. So there is no cogent evidence regarding the non-existence of Eranna.
e) Sofaras other claimants are concerned, as rightly observed by the trial Court there is no cogent evidence to hold that they were non-existing persons. So at the outset, the prosecution failed to establish the second vital ingredient also.
13. Then the third vital ingredient of the offence is that A.2 opened bank accounts in the name of non-existing persons and encashed cheques by forging their signatures or thumb impressions. It may be noted that in view of the finding relating to second vital ingredient that the prosecution failed to prove the non-existence of the policy holders, the present ingredient which depends upon the second ingredient looses much of its importance. However, since the prosecution made allegation and adduced evidence, the same has to be scrutinised.
14. As stated supra, the prosecution allegation is that A.2 opened accounts in the name of non-existing persons and withdrew the cheques by forging their signatures/thumb impressions. For instance, Claim Nos. 93/43, 94/20, 93/98 relate to K. Narsappa. In the policy and claim documents of 93/43 and 94/20, the thumb impressions of the party are available, whereas in Claim No. 93/98 his signature was put by A.2 in Telugu. Investigation revealed that thumb impressions and Claim No. 93/43 was put by A.2. All the cheques have been credited to the account of A.2 and subsequently withdrawn. Though in respect of Narsappa''s case, the prosecution could not get GEQD''s opinion but in respect of other instances, the prosecution obtained opinion of P.W. 22--the fingerprint expert and P.W. 23-- GEQD. Prosecution claimed that the opinion of the aforesaid experts established that A.2 had forged the signatures/thumb impressions on the relevant documents and encashed the cheques. The accused vehemently contended before trial Court that alleged specimen thumb impressions and handwritings of A.2 were not obtained by the order of the Magistrate or at least in the presence of independent mediators to lend credence to the acts of the Investigating Officer and there was absolutely no evidence to show that the specimen thumb impressions and handwritings were that of A.2 and hence the reports of the experts may not be taken into consideration. The trial Court it appears, agreed with the defence argument and observed that on perusal of the evidence of I.O. and experts, it came to know that the specimen signatures, handwritings and thumb marks of A.2 were not secured in the presence of independent witnesses and no such independent witnesses were examined in the Court. Accordingly, the trial Court declined to consider the evidence of the experts on the ground that there was no proof that the specimen thumb marks and signatures sent by them were that of A.2. Learned Spl. S.C. vehemently argued that the approach of the trial Court in this regard was wrong. He argued that merely because the prosecution did not examine the independent witnesses, that does not mean that I.O. has sent the specimen thumb marks and signatures of some other persons and not that of A.2.
15. Hence the point is whether the I.O. was required to take thumb impressions, handwritings and signatures of accused or suspected persons in the presence of a Magistrate or independent witnesses. In a case reported in
"Regarding the contentions that the thumb impressions, handwritings and signatures of A-1 were not taken in the presence of a Magistrate, the legal position is clear that they need not necessarily be taken in the presence of a Magistrate. The Investigating Officer is competent to obtain them during the course of investigation but, as a matter of caution, they were required to be taken in the presence of others. P.Ws. 15, 16 and 18 are witnesses in whose presence the thumb impressions, the specimen signatures and the handwritings were taken and they were not denied by A-1 disowning the authorship."
The Supreme Court in Mohd. Aman''s case (4 supra) while dealing with Sections 4 and 5 of Identification of Prisoners Act, 1920 held that though police is competent u/s 4 of the Identification of Prisoners Act to take fingerprints of the accused, in order to dispel any suspicion as to the bona fides or to eliminate the possibility of fabrication of evidence which was eminently desirable that they would be taken before or under the order of a Magistrate.
16. Having regard to the above Apex Court''s decision, learned Judge of this Court held that though Investigating Officer is competent to obtain them during the course of investigation but as a matter of caution they were required to be taken in the presence of others.
17. When the ratio of above decision is applied to the instant case, a duty is cast on the I.O. to establish that his investigation was pure and he obtained thumb marks and handwritings of an accused in the presence of independent mediators. In the instant case, though the prosecution claims to have done it but it did not examine the independent witnesses. So the trial Court rightly declined to consider the evidence of the experts. I find no illegality or irregularity in it.
18. So it is clear that the prosecution failed to prove the three vital ingredients of the offence. The prosecution then relied upon the evidence of P.W. 20--K. Sundaram, who is said to have conducted departmental investigation and came to conclusion that all the cattle claims processed by A.1 and A.2 were false and bogus. However, as rightly observed by the trial Court, he did not produce his report showing how he came to such a conclusion. In his evidence also he did not clarify as to how he reached such a finding. Sans such clarification, his oral assertion cannot prove the guilt of the accused.
19. The prosecution finally relied upon A.1''s depositing the amount during the departmental enquiry. I am afraid, by this act alone it cannot be concluded that all the accused are guilty of the charges levelled against them when prosecution miserably failed to prove their guilt to the hilt in a Court of law. So at the outset, on a conspectus of entire facts and evidence, it must be said that the prosecution failed to establish the guilt of the accused and the trial Court on a proper appreciation of the facts, evidence and law acquitted the accused. I find no merits in the appeal.
20. In the result, this Criminal Appeal is dismissed by confirming the judgment of the trial Court in C.C. No. 9 of 1999.
As a sequel, miscellaneous petitions if any pending shall stand closed.
