K. K. Suresh v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 CRL.A NO. 2411 OF 2010 ``` ``` AGAINST THE JUDGMENT DATED 30.11.2010 IN CC 160/2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM ``` ## **`APPELLANT:`** ``` K.K.SURESH, (FORMER WARD MEMBER OF VAZHOOR GRAMA PANCHAYATH), S/O.KUNJUMON,, KARIMKOZHUPIL, PULIKAL KAVALA, VAZHOOR. ``` ``` BY ADVS. SRI.K.A.HASSAN SMT.JULIA PRIYA RESHMY ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY DYSP, VACB,KOTTAYAM. ``` ``` BY ADV. SRI. RAJESH.A (SPL.G.P (VIGILANCE) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2411 of 2010 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2411 of 2010 --------------------------------------------- Dated this the 9[th] day of November, 2022 ## **JUDGMENT** This appeal arises from the judgment dated 30.11.2010 in C.C.No.160/2008 on the file of the Court of the Enquiry Commissioner and Special Judge, Kottayam. The appellant is the accused No.2. The appellant faces charges under Sections 13(1) (c) & (d) read with Section 13(2) of the Prevention of Corruption Act, 1988, and Sections 409, 465, 471, and 120B of the Indian Penal Code. 2. The prosecution case unfolded from the materials before the Court is as follows:- 2.1. The appellant (accused No.2) was a member of Vazhoor Grama Panchayath. Accused No.1 was a clerk in the office of the Grama Panchayath. Sri. Jim Aby Jacob had owned a factory in the name and style Iravikulagara Polymers. PW1 was a partner of the firm. 2.2. PW1 approached the appellant to get licence as provided in the Kerala Panchayat Raj (Issue of Licence to ``` Crl.A.No.2411 of 2010 ``` ``` 3 ``` Dangerous and Offensive Trades and Factories) Rules (D & O Licence). The appellant received Rs.1,240/- as licence fee from PW1. After that, the appellant and the other accused entered into a criminal conspiracy in March 2000. In furtherance of it, they forged Ext.P3 licence and handed it over to PW4, an employee of PW1, representing that the same was a genuine licence. The appellant and the other accused thus misappropriated a sum of Rs.1,240/-. 3. The appellant and the other accused appeared in response to the summons, and charges were framed against them, alleging the offences mentioned above. They denied the charges. 4. The Court below proceeded with the trial. PWs 1 to 17 were examined on the side of the prosecution, and Exts.P1 to P40 were marked. DWs 1 and 2 were examined, and Ext.D1 was marked on the side of the accused. 5. After the Trial, the Court acquitted accused No.1. The Trial Court convicted the appellant/accused No.2 for the offences under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 409, 465, 471 read with ``` Crl.A.No.2411 of 2010 ``` ``` 4 ``` 120B of IPC. The Court below sentenced him to undergo rigorous imprisonment for one year and pay a fine of Rs.10,000/- under Section 13(2) of the PC Act. The Court below also sentenced the appellant for one year each under Sections 406 and 465 of IPC. 6. The Trial Court relied on the following pieces of evidence to conclude that the appellant committed the offences alleged : (a) The oral evidence of PWs 6, 7, and 10 to the effect that the appellant wrote the entries in Ext.P3, Ext.P16, P29 and P31. - (b) The oral evidence of PWs 14 and 17 corroborated by Exts.P3 and P27 writings, and Ext.P39 report. 7. Heard Sri.K.A. Hassan assisted by Smt.Juliya Priya Reshmi the learned counsel appearing for the appellant and Sri. Rajesh A., the learned Special Government Pleader appearing for the State. 8. The learned counsel for the appellant contended that the oral evidence of PWs 6, 7, and 10 to the effect that the writings contained in Ext.P3 are that of the appellant is not acceptable as the requirements of Section 47 of the Evidence Act were not ``` Crl.A.No.2411 of 2010 ``` ``` 5 ``` satisfied. The learned counsel further contended that Ext.P39 Expert's opinion proved through PW17 is not reliable as the writings stated to have been taken from the accused during the investigation, which was used as the admitted writings to compare with the disputed writing in Ext.P3, had not been obtained in accordance with the provisions of the Identification of the Prisoners Act, 1920. 9. The learned Special Government Pleader, per contra, contended that the evidence of PWs 6, 7, 10, 14, and 17 is reliable, and there is nothing to discredit Ext.P39 report of the expert. 10. To bring home the offences alleged against the appellant, the prosecution has to establish the following facts: - (a) The appellant intentionally prepared Ext.P3 and used it as genuine and handed over the same to PW1. - (b) The appellant obtained a sum of Rs.1,240/- from PW1 by abusing his official position. 11. The prosecution relied on the oral evidence of PWs 6, 7, and 10 primarily to establish that the entries in Ext.P3 were made by the appellant and the handwritings in Exts.P16, P29 and P31, ``` Crl.A.No.2411 of 2010 ``` ``` 6 ``` reports that formed the basis of the expert opinion in Ext.P39 are that of the appellant. 12. PW6, the then Secretary of the Grama Panchayat, gave evidence that the writings in Ext.P3 could be that of the appellant. PW6 further added that he is familiar with the handwriting of the appellant. PW7, a former Secretary of the Grama Panchayat, also gave evidence that the entries made in Ext.P3 were that of the appellant. PW10, the U.D Clerk of the Grama Panchayat, also stated that the handwriting in Ext.P3 appears to be that of the appellant. 13. Ext.P16 is a report stated to have been prepared by the appellant on 25.03.1999. Ext.P19 is another report dated 20.12.1999 said to have been prepared by the appellant. Ext.P31 is another report dated 06.08.1999 said to have been in the handwriting of the appellant. Exts.P16, P29, and P31 were treated as the admitted handwritings of the appellant to form the basis of the findings in Ext.P39 by PW17, the Expert in the Forensic Science Laboratory. 14. According to the prosecution, the oral evidence of PWs 6, 7, and 10 is admissible under Section 47 of the Evidence Act. ``` Crl.A.No.2411 of 2010 ``` ``` 7 ``` 15. The admissibility of the opinion of the lay witnesses as provided in Section 47 of the Evidence Act was considered by this Court in **Sivadas v. State of Kerala [2023 (1) KHC 482]** . In that case this Court held thus: “16. Section 47 of the Evidence Act reads thus:- “47.Opinion as to handwriting, when relevant.— When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation.—A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. 17. Section 47 permits the Court to admit the opinion of a person who is acquainted with another person’s handwriting or signature. The explanation attached to Section 47 gives guidance as to who is considered to be acquainted with another’s handwriting. It includes a person; (1) who has seen that person writes; (2) or who has received documents written by that person in answer to documents written by himself or under his authority and addressed to that person or; (3) who has in the ordinary course of business receives documents written by that person or such documents are habitually submitted to him. 18. The first case deals with direct evidence. Going by Section 47, besides direct evidence, the law makes two other modes as mentioned above. 19. In **B. Raghuvir Acharya (supra),** the Apex Court held that the prosecution has to produce relevant material before the Court to establish that the witness who claimed familiarity with the handwriting of the accused had the competency to identify the disputed writings. In **Hema (supra),** ``` Crl.A.No.2411 of 2010 ``` ``` 8 ``` the Apex Court found the evidence of a lay witness identifying the handwriting of the accused therein admissible under Section 47 of the Evidence Act on the ground that the witness had the opportunity to get familiarity with the disputed writings and he has the competence to identify the same. In **Ajit Savant (supra),** the Apex Court observed that a comparison made by anyone familiar with the handwriting of the person concerned is admissible under Section 47 of the Act. 20. In the present case, admittedly, there is no direct evidence as the prosecution has no case that any of the witnesses examined to prove its allegations has seen either accused No.1 or 2 write or put signature. 21. The learned counsel for accused Nos.1 and 2 contended that the prosecution has not succeeded in establishing that any of the witnesses gave evidence to show that they had an opportunity to acquaint with the writing and signature of accused Nos. 1 and 2. A person gets an opportunity to get acquainted with the handwriting of another person when he has often seen that person writing something, or when he has been receiving papers written by that person in reply to his own drafts or for the purpose of typing, fling, or advising. The mandate of Section 47 is that the opinion of such a person can be relied upon. In the present case, the witnesses relied on by the court below only stated that as they had worked with the accused in the same ofce, they could identify their signatures and writings. The circumstances by which they got familiarity with the signature of accused No.1 or the handwriting of accused No.2 had not been brought out in evidence. They had not given evidence to the efect that they had received documents written by accused Nos. 1 and 2 in answer to documents written by themselves or under their authority and addressed to them or in the ordinary course of business received documents written by accused Nos. 1 and 2 or such documents were habitually submitted to them. Their evidence is so weak that such an inference is not possible. 22. As far as the evidence against accused Nos.1 and 2 is concerned, the prosecution could not bring forth sufficient material to prove that the witnesses though partly supported the prosecution had an opportunity to have familiarity with the signature of accused No.1 and handwriting of accused No.2 in accordance with the requirements of Section 47 of the Evidence Act.” 16. Viewed on the touchstone of the abovementioned principles, the evidence of PWs 6, 7, and 10 cannot be reckoned ``` Crl.A.No.2411 of 2010 ``` ``` 9 ``` as opinion evidence as provided under Section 47 of the Indian Evidence Act. 17. The resultant conclusion is that the oral evidence of PWs 6, 7, and 10 is insufficient to conclude that the writings in Ext.P3, the disputed document, and the writings in Exts.P16, P29, and P31 are that of the appellant. Therefore, the findings of PW17 in Ext.P39 relying on Exts.P16, P29, and P31 cannot be acted upon. As also, the oral evidence of PWs 6, 7, and 10 is in no way helpful to the prosecution in establishing that the writing in Ext.P3 is that of the appellant. 18. Now, I consider the evidence of PW17 relying on the result of comparison based on Ext.P27 “specimen writings” of the appellant. PW17, the Assistant Director (documents) FSL, Thiruvananthapuram, gave evidence that he had compared the writings in Ext.P17 with the disputed writings in Ext.P3. He would state that the person who wrote the writings in Ext.P27 wrote, the questioned writings in Ext.P3. The defence challenge is that the specimen writings in Ext.P27 are not that of the appellant. It is contended that in the absence of any admissible evidence regarding the authorship of Ext.P27, the evidence of PW17 based on the findings in Ext.P39 cannot be acted upon. The findings in ``` Crl.A.No.2411 of 2010 ``` ``` 10 ``` Ext.P39 are essentially based on Ext.P27 specimen writings. PW14, the Investigating Officer gave evidence that during the investigation, he had collected the specimen writings of the appellant. PW14 stated that during the investigation, he summoned the appellant and obtained his specimen writings. 19. The appellant's challenge is that the investigating officer was not legally empowered to collect the specimen writings of the accused during the investigation. It is also contended that the appellant had never provided specimen writings as pleaded by the prosecution. According to the appellant, Ext.P27 writings are fabricated ones. 20. The learned Special Government Pleader (Vigilance), relying on the Identification of Prisoners Act, 1920 (for short ‘the Act’) (Repealed by the Criminal Procedure Identification Act, 2022), contended that the investigating officer was empowered to collect the specimen writings of the appellant. The learned Special Government Pleader relied on Section 4 of the Act, to substantiate his contention. It is profitable to extract Sections 4 and 5 of the Act, which read thus: “ **4. Taking of measurements, etc., of non-convicted persons.—** Any person who has been arrested in connection with an offence punishable with rigorous ``` Crl.A.No.2411 of 2010 ``` ``` 11 ``` imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. **5. Power of Magistrate to order a person to be measured or photographed.—** If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898)† it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer: Provided that no order shall be made directing any person to be photographed except by a Magistrate of the First Class: Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.” 21. Sections 2(a) of the Act defines ‘measurements’. As per Section 2(a), ‘measurements’ include finger impressions and foot print impressions. Given the definition of the term ‘measurements’, specimen writings cannot come under the Act. The Apex Court in **State of Uttar Pradesh v. Ram Babu Misra [(1980) 2 SCC 343]** observed that signatures and writings are excluded from the range of Section 5 of the Act, though finger impressions are included therein. 22. Even if it is assumed that the provisions of the Identification of Prisoners Act, 1920, could be extended to the taking of specimen writings of the accused by the Investigating Officer, the Apex Court in **Sonvir alias Somvir v. State (NCT of** ``` Crl.A.No.2411 of 2010 ``` ``` 12 ``` **Delhi) [(2018) 8 SCC 24]** and **Ashish Jain v. Makrand Singh and others [(2019) 3 SCC 770],** held that to dispel doubts as to the bona fides of the acts of the Investigating Officer and to rule out fabrication of evidence it is eminently desirable that the “measurements” were taken before or under the order of the Magistrate. In the present case, the Investigating Officer collected the specimen writings of the appellant on his own without the permission of the Court. 23. In the case on hand, the Investigating Officer was not empowered to require the writings of the appellant/accused by any statutory provision. Therefore, the findings of PW17 in Ext.P39 based on Ext.P27 cannot be acted upon. The result of the above discussion is that the prosecution failed to establish that the writings in Ext.P3 are that of the appellant. 24. As the prosecution failed to show that the appellant created Ext.P3, the disputed document, the allegation that the appellant obtained any pecuniary advantage by abusing his official position has no foundation. Moreover, the solitary evidence on this aspect is that of PW1 who stated that he had paid the sum of Rs.1,240/- to the appellant when he came to submit application for licence at the office of the Grama ``` Crl.A.No.2411 of 2010 ``` ``` 13 ``` Panchayat. This is not wholly reliable in view of its inherent inconsistencies as one point of time, during the crossexamination, the witness stated that he paid the amount based on the representation of the President of the Grama Panchayath (PW5). 25. The prosecution, therefore, failed to establish its case beyond the reasonable doubt. The appellant is entitled to the benefit of doubt. He is found not guilty of the offences alleged. He is acquitted. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK