Purnendu Bagani vs State Of West Bengal & Anr

C.R.R. No. 446 of 2013 Purnendu Bagani Versus State of West Bengal & Anr. With C.R. R. No. 1942 of 2013 Sandip Ghosh Versus State of West Bengal & Anr. For the petitioners : Mr. Abhra Mukherjee, Adv. For the opposite parties : Mr. Himangshu De, Sr. Adv., Mr. Mrityunjoy Chatterjee, Adv. Heard on : 06.09.2013 Judgement on : 26.09.2013 Joymalya Bagchi, J.: The revisional applications are directed against the

common judgement and order dated 17.01.2013 passed by learned 6th Fast Track

Court, City Sessions Court, Calcutta in Criminal Appeal No. 2220/97 affirming

the judgement and order dated 26.04.2010 passed by the learned Metropolitan

Magistrate, 14th Court, Calcutta in G.R. Case No. 2220 of 1996 (T.R. 65/13)

convicting the petitioners for offence punishable under Section 120B of the Indian Penal Code and under Sections 419/420/468/471 of the Indian Penal Code

and sentencing to suffer simple imprisonment for two years and to pay a fine of

Rs. 2000/‐ each, in case of default, to suffer simple imprisonment for one month

for the offence under Section 419 of the Indian Penal Code, to suffer simple

imprisonment for three years and to pay a fine of Rs. 2000/‐ each for commission

of offence punishable under Section 420/468/471 of the Indian Penal Code and to

suffer simple imprisonment for six months and to pay a find of Rs. 2000/‐ for the

offence punishable under Section 120B of the Indian Penal Code, all the sentences

to run concurrently.

The prosecution case against the petitioners, namely, Purnendu Bagani in

C.R.R. No. 446 of 2013 and Sandip Ghosh in C.R. R. No. 1942 of 2013 is that they

entered into a conspiracy with one Hari Sankar Chaturvedi, the then Branch

Manager of Bharat Oversees Bank, Dalhousie Square Branch and one Dibyendu

Kr. Ghosh, and pursuant to such conspiracy, Purnendu Bagani posed himself as

J. Chakraborty and submitted a forged letter dated 24.01.1995 (Exhibit‐G)

allegedly issued by Controller of Stores, South Eastern Railway, Garden Reach,

Kolkata requesting the Area Sales Manager, TISCO to refund an outstanding

amount lying to the credit of South Eastern Railway and another letter dated

27.01.1995

(Exhibit - H) authorizing the said J. Chakraborty to collect the cheque

in question on behalf of South Eastern Railway and on the strength of the said

forged letters induced TISCO Limited to part with a cheque bearing No. 635707

dated 25.01.1995 for Rs. 48,163,41.73 in favour of South Eastern Railway. Thereafter, Sandip Ghosh impersonating as one A.K. Samanta, opened an

account vide No. 2748 in Bharat Oversees Bank, Dalhousie Square Branch,

Kolkata in the name of South Eastern Railway, Garden Reach, Kolkata on the

strength of forged letters dated 27.01.1995 purportedly issued by one A.K.

Mukherjee, Controller of Stores, South Eastern Railway authorising one fictitious

A.K. Samanta to open and operate the account on behalf of the South Eastern

Railway. Thereafter, the aforesaid cheque was deposited and encashed in the

said account and Sandip Ghosh obtained a cheque book containing 50 leaves in

respect of the said account.

Utilising the said cheque book, accused Sandip Ghosh pretending as one

S. Samanta withdrew a sum of Rs. 1,25,000/‐ from the said account. Thereafter,

Bagani pretending as one Bimal Roy sought to withdraw a sum of Rs. 8,00,000/‐

from the said account but the said cheque was dishonoured and the remainder of

the amount was kept in a fixed deposit bearing no. 0178887/SDR/58/95 dated

19.05.1995 for 46 days.

On the aforesaid accusation, charges were framed against the petitioners

along with Harisankar Chaturvedi and D.K. Ghosh under Section 120B of the

Indian Penal Code and Sections 419/420/465/468/471 of the Indian Penal Code.

Petitioners and the co‐accused persons pleaded not guilty and claimed to

be tried.

In the course of trial, the prosecution examined 33 witnesses out of which

P.W. 1, 2, 3, 4, 14, 16, 19, 21, 23, 24 and 26 were the employees/officers of Bharat Oversees Bank, P.W. 6, 7, 8, 9, 15 and 17 were the employees of TISCO Limited,

P.W. 10, 12, 13, 18, 20 and 25 were the employees of South Eastern Railway, P.W.

30 was the Handwriting Expert. P.W. 29 and 32 were the Inspectors of Police, CBI

who helped the Investigating Officers, namely P.W. 31 and 33, P.W. 11 was the

Officer of State Bank of India where accounts of TISCO Limited were maintained

and P.W. 5, 27 and 28 were the independent witnesses.

Defence of the petitioners was of innocence and false implication. In

conclusion of trial, learned Magistrate convicted the petitioners for commission

of offences punishable under Section 120B of the Indian Penal Code and under

Sections 419/420/468/471 of the Indian Penal Code and sentenced them as

indicated hereinbefore. Learned Magistrate, however, acquitted the accused

persons, namely, Hari Sankar Chaturvedi and Dibyendu Kr. Ghosh, on the

ground that prosecution had failed to prove the case against them beyond

reasonable doubt. Such judgement and order of conviction and sentence was

appealed before the learned 6th Fast Track Court, City Sessions Court, Calcutta in

Criminal Appeal No. 2220/97. By judgement and order dated 17.01.2013 learned

Judge dismissed the appeal and affirmed the judgement and order of the trial

Court.

Learned counsel appearing for the petitioners has challenged the

conviction of the petitioners on the following grounds :

Firstly, he submitted that the only incriminating piece of evidence against

the petitioners being the opinion of the Handwriting Expert (P.W. 30) was not put to them during their examination under Section 313 Cr.P.C. Accordingly, he

emphatically argued that such piece of evidence could not be taken into

consideration and, in such event, the petitioners are entitled to an acquittal. He

argued that grave prejudice has been caused to the petitioners on this score.

Secondly, the opinion of the Handwriting Expert (P.W.30) is

uncorroborated and could not have been the sole basis of conviction. In this

regard, he drew my attention to the fact that P.W. 7 had not identified Bagani as

the man who took the cheque from TISCO.

Thirdly, he submitted that as the co‐accused persons had been acquitted,

the petitioners also ought to have been acquitted of the charges levelled against

them.

In support of his contention learned counsel relied on definition of the

word 'prejudice' from Black's Law Dictionary, Mitra's Law and Commercial

Dictionary and other authorities and also on (2012) 3 SCC (Cri) 1107, (2013)

Cr.L.J. 3190/3276, AIR 1984 SC 1622, (2009) 2 SCC (Cri.) 593, (2009) 2 SCC (Cri.)

243, (1994) SCC (Cri.) 46, (2003) SCC (Cri.) 165 and AIR 1977 SC 1091. Learned

Sr. Counsel for CBI argued that the courts below have correctly assessed the

evidence and the concurrent findings of guilt ought not to be set aside in

revision. He submitted that in the facts of the case no prejudice was caused to the

petitioners on account of not putting questions relating to the expert's evidence

under Section 313 Cr.P.C. The petitioners were fully aware of such evidence and

had extensively yet unsuccessfully cross‐examined the expert and addressed arguments before the trial Court on such evidence. He relied on (2005) CriLJ

3445 in support of his contention. He concluded that the acquitted persons stood

on a separate footing and the petitioners could not seek acquittal on principles of

parity.

It appears from the prosecution evidence that forged letters dated

24.01.1995 and 27.01.1995 being exhibits G and H respectively purportedly issued

by the Controller of Stores, South Eastern Railway, were utilized to induce

TISCO Limited to issue cheque bearing no. 635707 dated 25.01.1995 Rs.

48,16,341.73 in favour of South Eastern Railway. Letter dated 24.01.1995 (exhibit

G) called upon TISCO Limited to refund the outstanding amount lying unpaid in

the credit of South Eastern Railway. Letter dated 27.01.1995 (Exhibit‐H)

authorized one J. Chakraborty to collect the cheque in favour of South Eastern

Railway. P.W. 10, 12, 13, 18, 20 and 25 being the employees of South Eastern

Railway have emphatically established that no such letter was ever issued from

the end of South Eastern Railway. Both the exhibits G and H were seized from

the office of TISCO Sales Officer, Kolkata in presence of P.W.7. It is the evidence

of P.W. 8, an employee of TISCO Limited who prepared the payment voucher

and the cheque in question that the authorized person who collected the cheque

in question also put his signature on the cheque issuing voucher. Cheque issuing

voucher was seized in the course of investigation and exhibited in the case as

Exhibit‐17. Signature of one J. Chakraborty appearing in Exhibit H and in the

cheque issuing voucher were marked as Q 46 and Q 50 and were sent along with specimen signatures and handwritings of Purnendu Bagani to Handwriting

Expert (P.W. 30) for comparison.

Report of Handwriting Expert (P.W. 30) being exhibit 50, the forwarding

letter, exhibit 50/1 and the reasons for such opinion being exhibit 50/2 have been

proved. It appears from the opinion of the Handwriting Expert (P.W. 30) that it

was Purnendu Bagani who signed as J. Chakraborty in Exhibit H as well as in the

cheque issuing register (Exhibit 17) and received the cheque in question.

Account bearing no. 2748 was opened in Bharat Oversees Bank, Dalhousie

Square Branch, Kolkata by the accused Sandip Ghosh impersonating as one A.K.

Samanta. He opened the said account by using forged letters dated 27.01.1995

purportedly issued by A.K. Mukherjee authorizing the said fictitious A.K.

Samanta to open and operate the account on behalf of South Eastern Railway.

The said letters, account opening form, cheques along with other documents

were seized under a seizure list by the Investigating Officer (P.W. 31) in presence

of P.W. 18. It is the evidence of P.W. 10 that he was the Controller of Stores,

South Easter Railway at the material point of time and he did not author any

such letter to open the account in question on behalf of the South Easter Railway.

He also deposed that he did not put his signature in that letter as A.K.

Mukherjee. P.W. 20 corroborated such evidence and stated that there was only

one Controller of Stores and no one by the name of A.K. Samanta worked in such

capacity. P.W. 25 also corroborated such evidence.

In the course of investigation, signature of A.K. Samanta and one G.C.

Paul appearing in the letter dated 27.01.1995 requesting for opening Current

Account was marked as Q11 to Q 13, in the authorization letter dated 27.01.1995

the signatures of A.K. Mukherjee and G.K. Murty were marked as Q 5 and Q 6

and in the account opening form (Exhibit 6) signatures of A.K. Samanta were

marked as Q‐42 to Q‐44. The aforesaid questioned signatures and handwritings

were sent to the Handwriting Expert (P.W. 30) along with specimen signatures

and handwritings of Sandip Ghosh. Opinion of the Handwriting Expert (P.W.30)

established that the aforesaid questioned signatures were in the handwriting of

Sandip Ghosh.

It also appears from the evidence of the prosecution witnesses that the

aforesaid account bearing no. 2748 at Bharat Oversees Bank, Dalhousie Square

Branch was opened by depositing a sum of Rs. 5,000/‐. Thereafter, the cheque in

question obtained from TISCO was encashed in the said account. It also

transpires from prosecution evidence that petitioner Sandip Ghosh issued a

cheque dated 30.01.1995 for Rs. 1,25,000/‐ and withdrew the said amount by

signing on the overleaf of the said cheque as one S. Samanta. Another cheque

dated 30.01.1995 was also issued by the petitioner Sandip Ghosh and the

petitioner Purnendu Bagani put his signature as Bimal Roy on the back side of

such cheque but the said cheque was not honoured by the bank and the

remainder amount was transferred into a short term fixed deposit. In this backdrop, let me consider the issue that the evidence of the

Handwriting Expert (P.W. 30) had not been put to the accused persons under

Section 313 Cr.P.C. Section 313 Cr.P.C. provides that all pieces of incriminating

material used against the accused must be placed to him during such

examination. However, the impact of its non‐compliance has been the subject

matter of much controversy. As Section 313 Cr.P.C. is a statutory expression of

the principles of natural justice, keeping in view the development of law in the

arena of audi alteram partem, the touch stone for deciding whether such non‐

compliance would amount to a mistrial or not has essentially been one of

prejudice. In other words, failure to put an incriminating piece of evidence to the

accused under Section 313 Cr.P.C., without anything more, would not entitle the

accused to an order of acquittal or retrial until and unless it can be demonstrated,

in the facts of the case, that he has, in fact, suffered prejudice from such non‐

compliance.

Whether an accused has suffered prejudice or not arising from such non‐

compliance is always a question of fact to be determined on the factual matrix of

each case.

It appears from the facts of the instant case that during their examination

under Section 313 Cr.P.C. both the petitioners had admitted that their specimen

signatures/handwritings were collected during investigation. No doubt has been

thrown during cross‐examination to the fact that such specimen signatures/handwritings were sent with the questioned signatures/handwritings

for comparison by P.W. 30 (Handwriting Expert).

During the cross‐examination of P.W. 30, apart from a few general

questions as to methodology adopted by the expert, no serious challenge has

been thrown as to the correctness or probative value of such expert evidence.

During arguments before the trial Court, learned counsel for the accused persons

extensively argued on the merits of the evidence of Handwriting Expert and non‐

compliance of Section 313 Cr.P.C. with regard thereto. This makes it evident that

the accused persons were alive to the fact that such incriminating opinion may be

used against them and had not only cross‐examined the expert but also

advanced extensive arguments on the merits of such opinion before the trial

Court. In this backdrop, the trial Court was of the opinion that no prejudice, far

less grave prejudice, was caused to the petitioners by not putting the expert

evidence to them during their examination under Section 313 Cr.P.C. as they had

admitted during such examination that their specimen signatures/handwritings

were collected in course of investigation.

In Shivaji Sahabrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793

a three Judge Bench of the Apex Court had the occasion of dealing with the

impact of non‐compliance of Section 342 (presently 313) Cr.P.C. during trial of a

criminal case. The Apex Court held as follows :

"16. It is trite law, nevertheless fundamental, that the prisonerʹs attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of Such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with section 342, Cr. P.C., the omission has not been shown to have caused prejudice to the accused." (emphasis supplied) The aforesaid ratio clearly lays down the fact that in the event there is a

failure to put an incriminating fact to the accused persons, the same may be

remedied by calling upon his counsel to offer reasonable or plausible explanation

to explain away such circumstance and in the event no acceptable answer is

offered or found to exist the Court would assume that such omission is in the

nature of a grave irregularity but has not prejudiced the accused so as to result in

mistrial.

In spite of the fact that such issue was raised before the trial Court who

had come to a finding that no prejudice had been caused, in view of the aforesaid

ratio, I repeatedly called upon the learned counsel of the petitioners to give a

reasonable or plausible explanation as to how opinion of the Handwriting Expert could have been explained away by the petitioners had such fact been put to

them during their examination.

Except a laconic denial and suggestion that the opinion of P.W. 30 is

incorrect and uncorroborated (which issue has been dealt with subsequently) no

reasonable explanation was offered from the end of the petitioners. The

petitioners also did not intend to give rebuttal evidence on this score in spite of

being unaware of the fact that the opinion of the Handwriting Expert (P.W. 30)

was used against them.

Applying test of prejudice, as laid down in Bobade (supra)in the factual

matrix of the case, I am convinced that bearing in mind the nature of cross‐

examination of P.W. 30 and the lack of reasonable or probable explanation to

such evidence by the petitioners inspite of opportunities given to them by the

trial Court during arguments as well as before this Court, no prejudice can be

said to have been caused so as to hold that they suffered a mistrial merely for not

putting questions with regard to such evidence to them during their examination

under Section 313 Cr.P.C. Trial Judge in this regard rightly relied on State of

Punjab Vs. Sawaran Singh, (2005) Cr.L.J. 3445, wherein the Apex Court set aside

an order of acquittal passed by the High Court on the ground that the evidence

of P.W. 1 to 4 had not been put to the accused under Section 313 Cr.P.C. by

holding that in view of the nature of cross‐examination of the said witnesses it

cannot be said that any serious prejudice was caused to the accused on this score.

The finding of the trial Court that no prejudice was caused is one of fact

based on an appreciation of evidence and other attending circumstances of this

case. Such finding found approval with the appellate Court. I am therefore loathe

to substitute such concurrent findings of the courts below on the factual premise

of absence of prejudice in exercise of my revisional jurisdiction.

I have examined the evidence of the P.W. 30 in the instant case. No serious

challenge has been thrown to the opinion of P.W. 30. In fact, specimen

signatures/handwritings collected during investigation have been admitted in

the course of examination under Section 313 Cr.P.C. of the petitioners. In this

backdrop, I concur with the opinion of the courts below that no prejudice has

been caused to the petitioners due to failure of putting opinion of the

Handwriting Expert (P.W. 30) to them under Section 313 Cr.P.C.

In Santosh Kumar Singh Vs. State, (2010) 9 SCC 747, the Apex Court held

that mere failure to place an incriminating material circumstance to the accused

under Section 313 Cr.P.C. would not ipso facto result in exclusion of such

evidence from consideration unless it is shown that prejudice or miscarriage of

justice has been caused. In paragraph 92 of the report, the Apex Court held as

follows :

"92. We see that the facts of each case have to be examined but the broad principle is that all incriminating material circumstances must be put to an accused while recording his statement under Section 313 of the Code, but if any material circumstance has been left out that would not ipso‐ facto result in the exclusion of that evidence from consideration unless it could further be shown by the accused that prejudice and miscarriage of justice had been sustained by him. We see from the case in hand that not only were the questions pertaining to the helmet and the ligature marks on the neck put to the Doctor and even in a way to the appellant but the defence counsel had raised comprehensive arguments on these core issues not only before the trial court and the High Court but before us as well. The defence was, therefore, alive to the circumstances against the appellant. No prejudice or miscarriage of justice has, thus, been occasioned."

In Alister Anthony Pareira Vs. State of Maharashtra, (2012) 2 SCC 648,

the Chemical Expert's report as to presence of alcohol in the blood of the accused

had not been put to him during examination under Section 313 Cr.P.C. Bearing in

mind the nature of cross‐examination, the Apex Court held that no prejudice was

suffered by the accused by such failure in the following words :

"54. It is a fact that evidence of PW‐1, as noticed above, has not been put to the appellant in his statement under Section 313 of the Code but that pales into insignificance for want of cross examination of PW‐1 in regard to his deposition that the appellant was found in drunken condition and his blood sample was taken."

In State (Delhi Admn.) Vs. Dharampal, (2001) 10 SCC 372, the Apex

Court held that the failure to put the certificate of the Director, Central Food

Laboratory to the accused under Section 313 Cr.P.C. would not cause prejudice

to him inasmuch as the said certificate had already been supplied to the accused

and he was aware of the contents thereof.

Learned counsel has relied on definition of the word 'prejudicial error' in

Black's Law Dictionary, 6th Edition at page 1179. 'Prejudicial error' has been

defined, inter alia, as follows :

"Prejudicial error. Error substantially affecting appellant's legal rights and obligations. Erskine v. Upham, 56 Cal. App.2d 235, 132 P.2d 219, 228. One which affects or presumptively affects the final results of the trial. State v. Gilcrist, 15 Wash.App. 892, 552 P.2d 690, 693. Such may be ground for new trial and reversal of judgement. Fed.R.Civil P. 59. See also Error; Plain error rule."

Similar definitions in Mitra's Law and Commercial Dictionary, Webster's

Dictionary and Oxford English Dictionary have also been relied upon.

In the instant case, I find that the opinion of the Handwriting Expert has

hardly been dented in cross‐examination. Furthermore, arguments had been

extensively advanced in respect of such opinion on behalf of the learned counsel

of the petitioners before the trial Court. Even before me, no reasonable or

plausible explanation was offered to explain away such incriminating fact.

Accordingly, I am of the opinion that the fair trial rights of the petitioners have

not been impaired as adequate opportunity was extended to them to explain

away the incriminating fact but they have failed to do so. Hence, the failure to

put such fact to the accused petitioners in this case did not amount to a mistrial

as held in Bobade (supra).

In Sharad Vs. State of Maharashtra, AIR 1984 SC 1622, the Apex Court

held that circumstances not put to the accused during examination under Section 313 Cr.P.C. must be completely excluded from consideration as the accused did

not have any chance to explain them. However, in Sharad (supra) the question

whether mere non‐compliance during examination under Section 313 Cr.P.C. in

the absence of demonstrable prejudice to the accused would result in mistrial or

not did not fall for consideration. Judgements are not to be read as statutes but as

principles of law laid down in the factual matrix of that case. Circumstantial or

factual variation makes a world of difference in the applicability of the ratio of a

decision to a particular case.

In the instant case, the issue of prejudice arising out of non‐compliance of

Section 313 Cr.P.C. was raised and decided by the trial Court. Even before this

Court opportunity was extended to the petitioners to explain away the said

circumstances not put to them during their examination under Section 313

Cr.P.C. They, however, failed to give any satisfactory explanation. The factual

matrix of this case persuade me to follow the ratio in Bobade (supra) and hold

that failure to put the said incriminating fact to the petitioners in the instant case

did not cause prejudice to them and the same would not result in mistrial in law.

The principles of natural justice or audi alteram partem of which

examination under Section 313 Cr.P.C. is a species, have undergone a sea change

in recent times and any breach thereof is essentially adjudicated on the anvil of

substance and prejudice and not on mere form and technicality.

In Ravi Kapur Vs. State of Rajasthan, (2012) 3 SCC (Cri.) 1107, the Apex

Court held that the mandatory nature of Section 313 Cr.P.C. stems from the fact that such provision of law gives an opportunity to the accused to explain away

circumstance, particularly, the facts which are in his personal knowledge as

appearing in the case.

In the instant case, incriminating circumstance not put to the accused was

the expert opinion in respect of which the accused cannot claim any special or

personal knowledge. That apart, in spite of opportunity given by me they failed

to explain away such incriminating fact. Hence, the ratio of the aforesaid decision

does not come to the help of the petitioners in the facts of the instant case.

In Raj Kumar Singh Vs. State of Rajasthan, (2013) CrLJ 3276, the Apex

Court dealt with the mandatory requirement of examination of the accused

under Section 313 Cr.P.C. The Apex Court held that the statement of the accused

under Section 313 Cr.P.C. cannot be used to base an conviction in a case of

circumstantial evidence.

Similarly, in Sujit Biswas Vs. State of Assam, (2013) Cr.L.J. 3140, the

Apex Court held that the statement of the accused under Section 313 Cr.P.C.

cannot be used as evidence against him. Such issue does not fall for decision in

the instant case and therefore I am of the opinion that the ratios of the aforesaid

decisions are of no help to the petitioners.

In Inspector of Customs Vs. Yashpal, (2009) 2 SCC (Cri.) 593, the Apex

Court acquitted the accuseds in view of the fact that their confessional statements

before the customs officers were not put to them under Section 313 Cr.P.C.

Confessional statement of an accused stands on a clearly different footing than an expert's opinion. The accused is even entitled to retract his confessional

statement during his examination under Section 313 Cr.P.C. and the

circumstances in which such confession was made are clearly in his

personal/special knowledge. Opinion of an expert witness is, however, a

completely different species of evidence to which an accused cannot ordinarily

claim any personal or special knowledge. In the facts of the instant case, the

accused persons not only cross‐examined the expert witness at length but even

advanced extensive arguments before the trial Judge on such evidence. They

were given sufficient opportunity by me to explain away such evidence which

they failed to do except offering bald denial. Hence, the ratio of the aforesaid

decision is distinguishable on facts as no prejudice can be said to have been

caused to the petitioners on the score of failure to examine them under Section

313 Cr.P.C. with regard to expert's evidence.

In State of Punjab Vs. Hari Singh, (2009) 2 SCC (Cri.) 243, the accused

persons were being tried under NDPS Act wherein they had to rebut the

statutory presumption relating to conscious possession of narcotic substance

seized from their possession. As a consequence, failure to put questions relating

to conscious possession of narcotics under Section 313 Cr.P.C. caused grave

prejudice to them and acquittal was ordered. In the present case, no such

prejudice can be said to have been caused to the petitioners as they had been

given adequate opportunity to explain away the expert's evidence before this

Court but they have failed to do so. Moreover, the petitioners were also not required to rebut any statutory presumption in this trial as in the case under

NDPS Act. The ratio of the aforesaid decision is clearly distinguishable on facts.

Coming to the second issue that the opinion of the Handwriting Expert is

uncorroborated and cannot form the sole basis of conviction, I am constrained to

hold that such contention is not borne out from the evidence on record.

I find that the evidence of P.W. 10, 12, 13, 18, 20 and 25 clearly establish

that the letters being exhibits G and H were forged documents and had been

manufactured. Such evidence, therefore, corroborates the opinion of the

Handwriting Expert (P.W. 30) as to forgery and hence it cannot be said that the

evidence of the Handwriting Expert in the instant case is wholly uncorroborated.

The evidence of prosecution witnesses, namely, P.W. 10, 20 and 25 also

establish the prosecution case as to non‐existence of any person, named, A.K.

Samanta as Controller of Stores, South Eastern Railway in whose favour letters

dated 27.01.1995 were issued to open and operate the bank account. P.W. 10

categorically states that he did not issue the said letters. These pieces of evidence

corroborate opinion of the Handwriting Expert (P.W. 30) that the signature of

A.K. Samanta on the letters in question and in the bank documents are forged. I

am therefore unable to accept the contention of the petitioners that the opinion of

Handwriting Expert is uncorroborated. In the face of such consistent prosecution

evidence the absence of identification of the accused persons by P.W. 7 cannot be

said to be material.

Alamgir Vs. State (NTC, Delhi), (2003) SCC (Cri.) 165, cited on behalf of

the petitioners, does not appear to support his case inasmuch as in the said

report the Apex Court held that there was neither any law nor any rule of

prudence which has crystalized into rule of law that the opinion of an

Handwriting Expert must never be acted upon unless substantially corroborated.

In the instant case, I find that the evidence of the Handwriting Expert, in

fact, is corroborated by the other prosecution evidence. Accordingly, I am of the

opinion that no error has occurred in arriving at finding of guilt against the

petitioners by relying on the opinion of the Handwriting Expert in the instant

case.

The ratio in Magan Bihari Lal Vs. State of Punjab, AIR 1977 SC 1091, is

also of no help to the petitioners in the face of the corroborative evidence of other

prosecution witnesses supporting the findings of the Handwriting Expert.

Finally, the acquittal of the other accused persons, namely, Hari Sankar

Chaturvedi and Dibyendu Kr. Ghosh cannot have any impact on the conviction

of the petitioners. Evidence against the petitioners and the acquitted persons are

not the same. There is clear evidence against the petitioners, disclosing their

involvement and participation in the crime. On the other hand, the prosecution

failed to prove beyond reasonable doubt by leading credible evidence that there

was meeting of minds between the petitioners and the said acquitted persons to

commit the alleged offences.

As the prosecution evidence against the acquitted persons were materially

different from the more incriminating and convincing evidence as led against the

petitioners, I am convinced that the petitioners are not entitled to an order of

acquittal on the ground of parity.

In Joginder Singh and Ors. Vs. Sate of Punjab, (1994) SCC (Cri.) 46, the

benefit of acquittal of similarly situated accused persons was extended to others

who had been convicted on the self‐same evidence. In the instant case as the

evidence on record and the reasons for acquittal are entirely different from that

against the petitioners resulting in their conviction I am afraid the ratio of the

aforesaid decision is not of any help to the petitioners.

Accordingly, the revisional applications stand dismissed.

The petitioners are directed to surrender before the trial court within 15

days from date to serve out their sentences, failing which the trial Court shall

cancel their bail bonds and proceed against them in accordance with law.

Lower court records be sent down at once.

(Joymalya Bagchi, J.) P.A. to J. Bagchi, J.