1. The appellant in this case was convicted by the learned Sessions Judge of the North Malabar division for offences under Sections 409, 467 and 471 read with Section 467 I.P.C. and sentenced to two years R. I. and a, fine of Rs. 60, in default of payment of fine, to rigorous imprisonment for a further period of one month under Section 409 I.P.C., two years rigorous imprisonment under Section 467 I.P.C., and to two years rigorous imprisonment under Section 471, read with Section 467 I.P.C. and the substantive sentences of imprisonment were directed to run concurrently.
2. The facts of the case which are not in dispute are these: One Kunhi Parambath Matha who was living in Panur with her children used to receive money orders every month from her husband who was working in Burma. In the month of May 1954 she did not receive any money order from her husband. She wrote to her husband that she had not received any remittance from him. A complaint was made by her husband from Rangoon as a result of which an enquiry was conducted by the Superintendent, Foreign Post, Calcutta.
The post master, Panur, on looking into his accounts found that the money order had been entrusted to the appellant for payment to the payee, P.W. 2, in the case and that the accused had returned the money order form as if the money had been paid. There was a thumb impression, as that of P.W. 2 in token of her having received the amount. The papers were sent to the Inspector of post offices, Tellicherry, who on examining P.W. 2 and the accused found that the money order amount had not been paid to P.W. 2 and so he reported the matter to the Superintendent of Post offices and on his direction a complaint was laid to the police and on further investigation the accused was charged-sheeted for the offences for which he has been convicted and sentenced.
That the accused received the amount of the money order in question to be paid to Kunhi Parambath Matha is not in dispute. The accused himself says that he had paid the money to P.W. 2, the payee. The payee is an illiterate person. She cannot sign her name and can only affix her thumb impression. Her thumb impression has 'been forged. P.W. 2 says that she has not received any money order and that she did not put her thumb impression to the money order,
In the course of investigation the police Sub-Inspector had taken the thumb impressions of the accused as well as that of P.W. 2, the payee. P.W.7 the Finger Print Expert-stated that the left thumb impression of the accused found in the slip of paper was identical with the left thumb'impression found in the paid voucher of money order sent from Burma to P.W. 2. He also found that the left hand thumb impression of P. W. 2 taken on a separate paper did not tally with the thumb impression found in the voucher of money order.
In addition to the evidence of the expert there is also the evidence of P.W. 2 that she did not put her thumb impression to any money order and receive money. On this evidence the learned Sessions Judge convicted the accused for the offence of forgery and for the offence of using as genuine a forged document in that he returned the money order voucher to the office and also for criminal breach of trust by a public servant in that he had misappropriated the sum of Rs. 40 entrusted to him for being paid over to P.W.2, the payee 'under a money order sent from Burma.
3. The only point that is argued before me by the learned counsel for the accused is that the taking of the thumb impression of the accused by the Sub Inspector of police is hit by Sub-clause (3) of Article 20 of the Constitution of India and that it amounts to testimonial compulsion and therefore, that document ought not to have been taken into consideration. In this connection, reliance was placed upon the decision of the Supreme Court in M.P. Sharma v. Satishchandra, : 1978(2)ELT287(SC) (A). That is a case where the court issued summons to the accused and directed him to produce certain documents and that was held to be testimonial compulsion.
4. But so far as I am aware, their Lordships o the Supreme Court have not held that any statement taken by the police or anything done by the police in the course of investigation which is subsequently produced before the court as evidence is hit by Sub-clause (3) of Article 20 of the Constitution. In my opinion the thumb impression taken by the police on a 'slip of paper which was later on produced in court cannot amount to testimonial compulsion.
5. On the evidence of the Finger-print Expert and that of PW2 that she did not put her thumb impression to any money order form and received the amount, it is clear that the accused must have forged the thumb impression of P.W.2, the payee and misappropriated the amount. Even assuming that the paper on which his thumb impression was taken is not admissible in evidence the burden is on the accused to prove that he has paid the money to the payee namely, P.W.2, and obtained her thumb impression in token of her having received the money order.
There is no reason to disbelieve the evidence of P.W.2, when she says that she did not put her thumb impression to any money order or receive any money. She did not receive her monthly remittance from her husband at Burma and so she wrote to him saying that she had not received any money order from him. On that, he made a complaint to the postal authorities which resulted in an enquiry. Even P.W. 3, a witness to the alleged forgery does not support the accused. Therefore the fact that the accused had not paid P.W. 2 the amount covered by the money order is clearly established
Even if his thumb impression had not been taken and that had not been compared with that in the money order voucher, it is for the accused to prove that he did pay the amount covered by the money order to the payee, P.W. 2, and that the impression found on that voucher is that of the payee P.W.2. If he fails to do that, he will be liable under Section 467, read with Section 109, I. P, C.
The thumb impression taken from the accused does not amount to testimonial compulsion and it is admissible in evidence and that evidence shows that he had forged the money order voucher and had used it as a genuine document in that he had sent it to the post office as if the money had been paid to the payee after obtaining the payee's thumb impression in the money order in token of payment of money.
6. The guilt of the accused has been establishedbeyond all doubt in respect of all the charges. Postaloffences are serious ones and it cannot be said thatthe sentence of two years is excessive. The convictions and sentences are confirmed and the appeal is dismissed.