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In Re: Mahalingayya Muddayya Pujari - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal Nos. 321, 326 and 327 of 1957
Judge
Reported inAIR1959Kant185; AIR1959Mys185; 1959CriLJ881
ActsEvidence Act, 1872 - Sections 47; Code of Criminal Procedure (CrPC) , 1898 - Sections 162 and 342; Indian Penal Code (IPC), 1860 - Sections 23, 24, 409 , 463, 464, 467 and 471; City of Bombay Police Act, 1902 - Sections 63
AppellantIn Re: Mahalingayya Muddayya Pujari
Appellant AdvocateS.C. Javali, Adv.
Respondent AdvocateShanker Chetty, Addl. Asst. Adv. General
Excerpt:
.....was no person at chikop of the name of venkataswami or vaikunthaswami nirupadimath. by the learned sessions judge, the accused has clearly denied having retained these parcels and it has been stated by him that they have been either delivered to the addressee or to one malayaswami for and on behalf of the addressee. emperor ilr 43 cal 421: (air 1916 cal 341 (i)) 'held that where a person lawfully entitled to possess arms and ammunitions signed a prescribe] certificate of purchase of the same, in the name of another with the address not his own, and thereby deceived the gunsmith and the government and defeated the object of the certificate, committed forgery. this purpose he deliberately defeated by his action in making out false certificates. we do not find any good ground to interfere..........sessions judge questioned the accused with reference to the evidence of these two witnesses, the accused stated that one mallaya who was different from the prosecution witness mallayaswami had received these parcels for and on behalf of venkataswami, he also stated that venkataswami was the same as the prosecution witness venkappa. the evidence of the complainant police sub-inspector, laxmangouda patil, mallayaswami nirupadimath and venkappa kudaomanavar clearly shows that there was no person at chikop of the name of venkataswami or vaikunthaswami nirupadimath.these parcels could not, therefore, have been delivered to the addressee. the prosecution did not stop there, but proceeded further to establish that tho signatures on the three v. p. p. receipts exs. 18, 24 and 24 which had been.....
Judgment:

1. The Criminal Appeals 321, 326 and 327 of 1957 have been heard together. The appellant in these three appeals was the accused in Sessions Cases Nos. 22, 23 and 24 of 1957, on the file of the Sessions Judge, Belgaum. In the year 1952-53 and for some years prior to that, the accused was a Village Postman who was attached to Katkol Branch Post Office, which was under the Gokak Post Office.

The village Chikop was within the beat of the accused. In the course of his duties as such postman he had been on trusted with three V. P. P. articles, each of them being of the value of Rs. 25/-and odd for delivery to the addressee Vaikunthaswami or Venkataswami Nirupadimath. One of these three was parcel hearing No. 80, which is material for the purposes of Sessions Case No. 22 of 1957; the remaining two, namely parcel No. 74 and parcel No. 59 are dealt with in Sessions cases Nos. 23 and 24 respectively.

In each of these cases, it had been alleged by the prosecution that the addressee was a fictitious person and that the accused had made on the receipts pertaining to these parcels, signatures purporting to be those of one Mallayaswami Nirupadimath in token of the parcels having been delivered to the addressee Vaikunthaswami or Venkataswami Nirupadimath. The V. P. P. receipts on which the accused had been alleged to have forged the signatures were the receipt marked Ex. 18 in Sessions Case No. 22 of 3957, the receipt marked Ex. 24 in Sessions Case No. 23 of 1957 and the receipt marked Ex. 24 in Sessions Case No. 24 of 1957.

The prosecution case was that the accused had committed criminal breach of trust in respect of these parcels and that he had committed forgery of a valuable security and had fraudulently or dishonestly used the same as genuine and that he had thereby committed offences under Sections 409, 467 and 471 of the Indian Penal Coda. The accused was committed by the Judicial Magistrate of Ramdurg to take his trial before the Court of Sessions, for these offences. Accordingly, the accused was tried by the learned Additional Sessions Judge of Belgaum in the said three Sessions Cases. In each of these three cases, he had been charged with having committed offences punishable under Sections 409, 467 and 471 of the I. P. C. The accused had pleaded not guilty.

The learned Sessions Judge has convicted the accused in all the three cases. In each case he has convicted and sentenced tho accused to undergo vigorous im proponent for a period of three years, for each of the three offences. He directed that the sentences should run concurrently.

In each of these cases, he has also farther fined the accused a sum of Rs. 100/- for the offence under Section 467 of the I. P. C. and has directed that in default of the payment of the fine, the accused

should undergo rigorous im proponent for a further period of three months. It is against these convic-

tions and sentences that the accused has preferred 'these: three appeals.

2. The entrustment of these three parcels to the accused for being delivered to the addressee, is proved by the evidence of the Branch Post-master Vecrappa Sindogi who has been examined as a prosecution witness in each of these three cases. He has stated that these parcels were entrusted to the accused for delivery to the addressee and that he has made entries to that effect in the 'Branch Office Journal' and that the accused has signed in the said journal for having received these parcels. The accused also, does not deny having received these parcels.

It is cleat from the statements made by the accused both before the Committing Magistrate and before the learned Sessions Judge, in the course of the examination under Section 342 of the Cr.P.C., that ho admits having been entrusted with these three parcels. The evidence of Vearappa Sindogi the Branch Post-master, also shows that after some time the accused returned the receipts Exs. 18, 24 and 24 together with the amounts which were payable in respect of these three parcels.

This conduct on the part of the accused, clearly created a belief that tho parcels had been delivered to the addressee and the value thereof recovered from him. In the course of his examination under Section 342 of the Cr. P. C., by the Commit-ring Magistrate, the accused had stated as per Ex. 38 that parcel No. 80 had been given by him toVenkataswami. As per Ex. 34, the accused had also stated before the Committing Magistrate that he had delivered the parcel bearing. No. 59 to the addressee.

As per Ex. 34, which is another statement of the accused before the committing Magistrate, he had stated that there was a person of the name of Vonkataswami. Madhav Mulagnnd the Police Sub-Inspector who had made the complaints before the Magistrate in these cases, gave evidence before; the Sessions Judge, to tho effect that there was no person of the name of Vaikuntaswami or Venkataswami Nirupadi Math. Laxman Couda Patil who had been officiating as Police Patil for Chikop for about 12 years gave evidence before the Sessions Judge stating that there was no person in Chikop of the name of Venkataswami or Vaikunthaswami Nirupadimath, he had also made a report to that effect, as per Ex. 26 (in Sessions Case No. 22 of 1957).

He, however, stated that there was a Math called Nirupadimath in Chikop and that one Mallayaswami stays in the said Math. During the cross-examination of these two witnesses, it had been suggested that there was a person of the name of Venkappa Kudsomanavar and that he used to be visiting Nirupadimath; it had also been suggested that he was called Venkataswami or Vaikuntha-swami. This Venkappa Kundsomanavar was examined as a witness for the prosecution, before the Sessions Judge; he denied that he was called either Venkataswami or Vaikunthaswami.

He also stated that no Swami of tho name of Venkataswami or Vaikunthaswami lived in Nirupadi-Math. He stated that one Kallayaswami lives there. Mallayaswami Nirupadimath was also examined as a witness for the prosecution. He stated that his was the only family known by the name of Nirupadimath, in Chikop. He denied that there was any person of the name of Venkataswami or Vaikunthaswami in his family. He stated that he had not ordered these V. P. articles and that nobody had requested him to take delivery of these three parcels. He denied that the signatures on the receipts Exs. 18 and 24 (Ex. 24) in two cases were his.

When the learned Sessions Judge questioned the accused with reference to the evidence of these two witnesses, the accused stated that one Mallaya who was different from the prosecution witness Mallayaswami had received these parcels for and on behalf of Venkataswami, he also stated that Venkataswami was the same as the prosecution witness Venkappa. The evidence of the complainant Police Sub-Inspector, Laxmangouda Patil, Mallayaswami Nirupadimath and Venkappa Kudaomanavar clearly shows that there was no person at Chikop of the name of Venkataswami or Vaikunthaswami Nirupadimath.

These parcels could not, therefore, have been delivered to the addressee. The prosecution did not stop there, but proceeded further to establish that tho signatures on the three V. P. P. receipts Exs. 18, 24 and 24 which had been denied by Mallayaswami Nirupadimath as being his, were really in the handwriting of the accused. For this purpose, the prosecution examined Maheshwar Wagh who was a handwriting Expert attached to the Criminal Investigation Deportment of Bombay.

He compared the signatures in Exs. 18, 24 and 24 with the handwriting in Exs. 8 to 16. These exhibits viz., 8 to 16 were the specimen handwriting and signatures of the accused; it is seen from the evidence of the Police Sub-Inspector Malgund that he had taken these specimen handwriting and signatures in the presence of the Panchas on 10-6-1953. In the course of his examination by the Sessions Judge, the accused has admitted that Exs. 8 to 16 are in his handwriting. The Handwriting Expert Wagh has given evidence to the effect that in his opinion the signatures on Exs. 18, 24 and 24 are in the same hand as the writings and signatures in Exs. 8 to 16. He has stated in his evidence that he has examined more than twenty thousand disputed documents and he seems to be a man of considerable experience in the identification of handwritings.

In Ex. 35, he has given detailed reasons in support of his opinion in regard to the signatures on Exs. 18, 34 and 24. Nothing has been elicited in the course of his cross-examination to show as to why his opinion should not be accepted. In regard to the two exhibits marked 24, there is also the further evidence of the Branch Postmaster Veerappa Sindogi that the endorsements in Kannada thereon, are by the accused. He is a person who was accustomed to see the handwriting of the accused and there is no reason why due weight should not be attached to his evidence. It was contended by Sri Javaji the learned Advocate for the appellant that Exs. 8 to 16. are hit by Section 162 of the Code of Criminal Procedure and that, therefore, these documents are inadmissible in evidence.

His contention is that these specimen writings are all in the nature of statements falling within the scope of Section 162 of the Cr, P.C. In support of his contention, Sri Javali relied on the following observations made by their Lordships of the Supreme Court in the decision of Ramkishan v. State of Bombay : 1955CriLJ196 :

'This statement may be express or implied. The identifier may point out by his finger or touch the property or the person identified, may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which arc tantamount to saying that the particular property identified was the subject matter of the offence or the person identified was concerned in the offence.'

It was argued on the strength of these observations that when gestures, nods or signs involved in the process of identification amounted to statements under. Section 162 of the Cr. P.C., the writings by an accused person made to the dictation of a Police Officer, would also amount to statements within the scope of Section 162 of the Cr. P.C. It would appear from the evidence of the Paneh witness Appayyappa Molawanki that the accused wrote Exs. 8 to 16 to the dictation of the Police Sub-Inspector; thera docs not appear to he anything in the observations made by their Lordships of the Supreme Court in the decision above referred to, which would support the proposition that a writing made by the accused under such circumstances, would amount to a statement within the meaning of Section 162 of the Cr. P.C. A similar contention was negatived by the Bombay High Court in the case (Emperor v. Ramrao Mangesh AIR 1932 Bom 406 at p. 409).

There the question arose as to whether the writings on blank slips by the accused at the direction of the Police Officer, could not be statements within the moaning of Section 63 of the City of Bombay Police Act of 1902 (the provisions of which were similar to the provisions of Section 162 Cr. P.C.). The Court held that they were not statements within the meaning of that Section. There is also one other circumstance in view of which, this contention loses all its force.

It is seen from the evidence of Police Sub Inspect Mulgund that it was after obtaining the permission of the Magistrate on 5-11-1954, that he took up the investigation in these cases. But, the handwriting and signatures in Exs. 8 to 16 had been obtained as long back as on 10-6-1953, it is seen that they had been obtained in connection with the investigation of another criminal case pertaining to an excise offence; these writings and signatures having been obtained long prior to the commencement of the investigation of the offences to which these Sessions Cases relate, they cannot come within the scope of Section 162 of the Cr. P.C.

The bar under Section 162 is against the use of the statement or record at any inquiry or trial in respect of any offence under investigation at the time when such statement was made,' At the time when Exs. 8 to 16 were written by the accused, the offences to which these Sessions Cases relate, were not under investigation. For these reasons, we are unable to accept the contention of Sri Tavali that Exs. 8 to 16 are rendered in-admissible by Section 162 of the Cr. P.C.

3. It was next contended on behalf of the appellant that comparison of handwriting as a mode of proof is hazardous and that the learned Sessions Judge should not have placed any reliance on the opinion evidence of the Handwriting Expert. The Handwriting Expert who has been examined in this case, appears to be a man of considerable experience. He has given detailed reasons for reaching the conclusion that the disputed writing is in the same hand as the writings admitted by the accused to be his.

Nothing has been elicited in the course of the cross-examination of the Handwriting Expert to east any suspicion either on his competency or his impartiality. Further, there is 'also the evidence of the Branch Postmaster Veerappa Sindogi, who was acquainted with the handwriting of the accused, to show that the disputed writings on the receipts arc those of the accused. The accused had these receipts in his custody and ha certainly had the opportunity to make these writings; this is rendered further probable by the fact that the addressee is a fictitious person and Mallayaswami Nirpadimath who admittedly resides in this Math has denied the handwriting of the receipts as being his.

Having regard to all these circumstances, we are unable to accept the contention on behalf of the appellant that the learned Sessions Judge was wrong in having reached the conclusion that the disputed writing on these receipts were in the hand of the accused.

4. In the course of bis examination under Section 342 of the Cr. P.C. by the learned Sessions Judge, the accused has clearly denied having retained these parcels and it has been stated by him that they have been either delivered to the addressee or to one Malayaswami for and on behalf of the addressee. But, it has been contended by Sri Tavali that the possibility of the accused having himself ordered these articles under an assumed name ought not to be excluded and it is argued that in such an event, there would be no dishonest intention on the part of the accused in his having himself taken the parcels; it is contended that in these circumstances, the accused would not have committed, either any forgery or any criminal breach of trust.

It is urged that the amounts payable in respect of these parcels having been credited to the Postal Department, there has been no wrongful loss caused by the accused. We do not find any force in these contentions. Under Section 23 of the Indian Penal Code, a person is said to gain wrongfully, also when he retains wrongfully. It was not the name of the) accused that was in the address on these parcels. The accused was neither the addressee nor a person authorised by the addressee to receive these parcels. When delivery could not be made to the addressee, the accused was bound under, the postal rules governing the delivery of V. P. articles, to return them to the Post Master; this position has not been disputed.

If by making it appear that these parties had been received by some person for and on behalf of the addressee, the accused retained them for himself, then, such retention was wrongful sain within the meaning of Section 23 of the Indian Penal Code. By doing so, the accused acted dishonestly within the meaning of Section 24 of the Indian Penal Code. Consequently, the accused had made false documents in making the endorsements on the receipts Exs. 18, 24 and 24 and be dishonestly misappropriated the parcels. In a decision reported in re Rambilas ILR 38 Mad 639: (AIR 1915 Mad 600), the view has been taken that the offence of criminal breach of trust is completed by the misappropriation or conversion of the property dishonestly, i.e., with the intention of causing wrongful gain or wrongful loss, and that it is only the intention which is essential.

Their Lordships observed that 'whether wrongful gain or loss actually results is immaterial, it being a consequence, but no essential part of the offence.' The Calcutta High Court, in a case reported in P.L. Causally v. Emperor ILR 43 Cal 421: (AIR 1916 Cal 341 (I)) 'held that where a person lawfully entitled to possess arms and ammunitions signed a prescribe] certificate of purchase of the same, in the name of another with the address not his own, and thereby deceived the gunsmith and the Government and defeated the object of the certificate, committed forgery. Their Lordships stated as follows:

'His intention was undoubtedly to deceive both the Finns, who sold him these revolvers and ammunition, and also the Government, which has prescribed the formalities to be observed in such sales. He must be taken to have known that the certificate was required for the identification of the purchaser and the weapons purchased. This purpose he deliberately defeated by his action in making out false certificates. His acts come directly within the definition of forgery as contained in sections 463 and 464 of the Indian Penal Code.' Under these circumstances, the argument that the accused had paid the money payable in respect of these parcels and that no wrongful loss had been caused to the sender of those parcels, cannot in any way help the appellant. The endorsements on the, receipts were made dishonestly and fraudulently and with the aid of such receipts, he dishonestly misappropriated these parcels which had been entrusted to him for delivery to the addressee. Under these circumstances, we have absolutely no doubt that the accused is guilty of the offences for which he has been convicted.

5. Lastly, it was urged by Sri Javali that thesentence was severe. A postman holds a positionof trust and confidence. The accused has abusedthe trust and confidence reposed in him; we do notthink that the sentence of three years rigorous improponent on each count, is by any means severe.We do not find any good ground to interfere witheither the convictions or the sentences in these appeals. In the result, these appeals fail and are dismissed.

6. Appeals dismissed.


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