that the case could have been conducted in a more proper and
appropriate manner. Learned APP is right in submitting that trial court
could have been more vigilant in conducting the trial. At the relevant
time, the amount which was not accounted for was a substantial amount
i.e. Rs. 95,396/-. The Investigating officer ought to have taken pains to
produce the prosecution witnesses cited in support of the prosecution
case. The record shows that efforts were made by the Prosecutor for
getting summons issued at times, even bailable warrant were issued, but
for the reasons best known to the Investigating Agency, the persons who
claimed to have deposited money with the post office did not come
forward to depose in favour of the prosecution.
7. The evidence of PW1, PW2 and PW3 who were from the
department shows that entire record was scanned by them. They seized
the record. The record also shows that several receipts were seized
which were executed in the name of persons who paid money towards
money order. The record is relevant to the allegations made. The
prosecution witnesses 1, 2 and 3 calculated the amount of Rs. 95,396/-
which was not accounted for. In the normal circumstances, respondent
being a Branch Post Master of Kausa post office must have been made
responsible and accountable. Being a Branch Post Master, it was the
responsibility and duty of the respondent to explain the circumstances
and allegations made.
8. We cannot loose site of the fact that prosecution has to establish its
case beyond reasonable doubt. The seizure of record from the residence
of respondent was not supported by Panchas but the same was
supported by the Investigating Officer. The investigating officer in the
cross-examination stated that receipt books were sealed after the
panchnama was drawn but there was no reference of the same in the
panchnama. He further stated that receipt books do not bear signature
of Panchas but he denied suggestion that panchnama was fabricated.
The Investigating officer has averred that he did not seized original
money order receipts from witnesses i.e. sender of money orders. This is
serious lacuna on the part of Investigating Officer. The Investigating
Officer ought to have obtained specimen signature and hand-writing
expert report while conducting investigation. For the reasons best known
to Investigating Officer, we do not find such an evidence was brought on
record. These are matters where confidence of people is involved. The
Investigating Agency ought to have been more vigilant in conducting
investigation in such cases. In this fact of scenario and considering the
nature of quality of evidence, benefit would be derived by the accused
person for the lacunas, lapses and defects in the prosecution evidence. It
is the cardinal principle of criminal jurisprudence that on mere conjectures
and surmises a person cannot be held guilty and punished.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 547 OF 2002
State of Maharashtra
V/s.
Mrs. Mandabai Ashok Sawant,
CORAM : NARESH H. PATIL AND
PRAKASH D. NAIK, JJ.
Dated:28th July, 2016.
Citation: 2016 ALLMR(CRI)4065
The respondent was charged for the offence under section 409 of
I.P.C. By Chief Judicial Magistrate, Thane in R.C.C. No. 66/1996. At the
relevant time respondent was discharging her duties as Branch Post
Master, Kausa, Dist. Thane. The Inspector at Divisional Office ThanePW2
Uday Kumar Jadhav was called by Senior Superintendent of Post
Office, Central Division, Thane on 10th November, 1995 alongwith
Assistant Superintendent of Post Office. They were informed that money
orders received by post office, Kausa were not accounted for and the
matter requires investigation. The PW2 Jadhav alongwith PW3 Forgade
visited Post Office, Kausa. The respondent was present there. The cash
balance, stamps, money order forms, registers and other relevant record
were verified. It was alleged that they did not find the stamp receipts
which were to be issued to persons who deposited money for sending it
by money order. They found one book of money orders and register
having scored number of receipts. The PW1 Laxman Kamble, Vigilant
Inspector filed complaint against the respondent on which FIR came to be
registered. The Vigilance Inspector and PW2 found that certain record
relating to receipt of money orders was lying in the house of respondent.
The record was seized. It was attached under Panchnama. The Senior
Officers of the postal department after verifying the entire record and
taking into consideration the complaint lodged arrived at conclusion that
respondent had misappropriated an amount of Rs.95,396/-. The police
after investigation filed a chargesheet against the respondent.
2. Seven witnesses were examined by prosecution. From the record
we have noticed that summons were issued to several witnesses but it is
surprising to note that prosecution was unable to record evidence of
witnesses particularly the persons who claimed that they had paid money
for forwarding it by money order which amount did not reach the
destination. It was alleged that money was misappropriated. A long list
of 130 persons was cited. PW1 Laxman Kamble is the Complaint
Inspector of post office who lodged the complaint. PW2 Udaykumar
Jadhav is senior Superintendent of Post Office and PW3 Dyaneshwar
Forgade who was working as Superintendent at Thane Central Division
was also examined in support of prosecution case. PW4 Raghunath
Walekar was serving as Postman at the relevant time. PW5 is Panch
witness who did not support the prosecution. PW6 is Chhotelal Verma
who is a sole witness from the list of 130 persons who had deposited
money to be forwarded by money order. PW7 is the Investigating Officer.
3. The PW2 and PW3 being officers of the post office, Central
Division, Thane have deposed before the Court that the entire record of
the post office was verified and it was found that respondent no.2 was
entrusted with an amount of Rs. 95,396/- pertaining to money orders.
The receipt books were seized from the respondent's house.
Respondent claimed ignorance about the entire transaction. Her defence
was of denial. The witnesses further deposed before the Court that
amount was not accounted for neither it reached persons in whose favour
the amount was deposited by various persons with Branch Manager of
the post office i.e. respondent. The PW5 who was examined as panch
witness did not support the prosecution. In paragraph 2 of his deposition
he stated:
“ It is not true to say that, in my presence police had
searched the house of accused. Panchnama dated 12/12/95
bears my signature. It is not true to say the Complainant
Kamble had shown the money order forms 129 to the police
and two receipt books thereafter it was seized in my
presence”.
PW6, the person who claimed to have deposited the money could not
produce receipt of payment made by him. PW4 Raghunath Walekar
stated that investigation was carried out and the entire record was
searched. He was discharging his duties as a postman and was in a
position to identify the signature of respondent. He stated about the day
to day transactions going on in the post office Kausa. He deposed that
he was present during inspection but during cross examination he
deposed that he did not know who used to accept money order amount in
Mumbra post office. He was getting salary from Kausa post office. He
deposed before the Court that he had not stated before police that he
could identify signature of accused as it was not asked by police. In
other words, witness expressed his opinion that he was not in a position
to identify signature of respondent at exhibit 15 and 16.
4. The learned Prosecutor submitted that in fact this was a case
where the trial Court ought to have been vigilant during trial for doing
complete justice. It was a serious matter where money deposited by poor
villagers was misappropriated by the accused. The amount was paid by
various persons to the Branch Post Master, receipts were executed but
the amount did not reach the destination. The learned Prosecutor
submitted that relevant record was seized from the residence of
respondent. The postman who was discharging duties in Kausa post
office was not in a position to throw light on the day to day transactions.
Panch witness Hasan Shaikh denied that in his presence police searched
the house of accused and seized money order forms in his presence.
He could not state the reason as to why his signature was obtained on
the panchnama. His testimony ought to have been relied upon by the
trial Court. In the submissions of learned Prosecutor as the respondent
was entrusted with money deposited towards money orders, she ought to
have accounted for the said amount. She was responsible for the
amount that was not accounted for and charge framed against the
respondent was clearly established.
5. Learned Counsel appearing for respondent submitted that after
going through the entire evidence, the trial Court had acquitted the
accused. The responsibility on the prosecution was heavy. They are
supposed to establish the case beyond reasonable doubt. The
respondent could not have been convicted on conjectures and surmises
neither on drawing inferences. The learned Counsel submitted that
Panchas have not supported the prosecution case though the
prosecution claimed that several persons deposited money but they failed
to bring such persons before the Court in support of the prosecution case.
One such person deposed before the Court but his testimony is of no
value as he failed to produce receipt of payment of money. Learned
Counsel submitted that the theory of prosecution that the record was
seized from the house of respondent does not get credence from the
evidence of independent witness. The signature on the receipts was not
proved. No opinion of hand-writing expert was tried to be obtained by the
prosecution. There is no evidence to show that respondent accepted the
money from the persons towards money order and executed the receipts
and handed over the same to various persons. This being essential
ingredient of offence, learned Counsel submits that benefit must go to
respondent. Learned Counsel further submitted that being an appeal
against order of acquittal, if two views are possible, the benefit shall go to
respondent-accused.
6. We have perused the entire record and the evidence. We find
that the case could have been conducted in a more proper and
appropriate manner. Learned APP is right in submitting that trial court
could have been more vigilant in conducting the trial. At the relevant
time, the amount which was not accounted for was a substantial amount
i.e. Rs. 95,396/-. The Investigating officer ought to have taken pains to
produce the prosecution witnesses cited in support of the prosecution
case. The record shows that efforts were made by the Prosecutor for
getting summons issued at times, even bailable warrant were issued, but
for the reasons best known to the Investigating Agency, the persons who
claimed to have deposited money with the post office did not come
forward to depose in favour of the prosecution.
7. The evidence of PW1, PW2 and PW3 who were from the
department shows that entire record was scanned by them. They seized
the record. The record also shows that several receipts were seized
which were executed in the name of persons who paid money towards
money order. The record is relevant to the allegations made. The
prosecution witnesses 1, 2 and 3 calculated the amount of Rs. 95,396/-
which was not accounted for. In the normal circumstances, respondent
being a Branch Post Master of Kausa post office must have been made
responsible and accountable. Being a Branch Post Master, it was the
responsibility and duty of the respondent to explain the circumstances
and allegations made.
8. We cannot loose site of the fact that prosecution has to establish its
case beyond reasonable doubt. The seizure of record from the residence
of respondent was not supported by Panchas but the same was
supported by the Investigating Officer. The investigating officer in the
cross-examination stated that receipt books were sealed after the
panchnama was drawn but there was no reference of the same in the
panchnama. He further stated that receipt books do not bear signature
of Panchas but he denied suggestion that panchnama was fabricated.
The Investigating officer has averred that he did not seized original
money order receipts from witnesses i.e. sender of money orders. This is
serious lacuna on the part of Investigating Officer. The Investigating
Officer ought to have obtained specimen signature and hand-writing
expert report while conducting investigation. For the reasons best known
to Investigating Officer, we do not find such an evidence was brought on
record. These are matters where confidence of people is involved. The
Investigating Agency ought to have been more vigilant in conducting
investigation in such cases. In this fact of scenario and considering the
nature of quality of evidence, benefit would be derived by the accused
person for the lacunas, lapses and defects in the prosecution evidence. It
is the cardinal principle of criminal jurisprudence that on mere conjectures
and surmises a person cannot be held guilty and punished. In certain
situations inference could be drawn but it depends on the facts and
circumstances of each case and the nature of evidence brought on
record. The record reflects that respondent being Branch Post Master
was Incharge of the post office. Her duties were crucial in nature and
mere pleading ignorance would not suffice and mere denials are of no
consequence but still the fact remains that the prosecution is not
absolved of its responsibility and duties to establish the case beyond
reasonable doubt. In the facts of the case, we find that benefit of doubt
would go in favour of the respondent.
9. We are informed by the Counsel appearing for the respondent that
the departmental enquiry was held and respondent was dismissed from
service in the year 2003.
10. There is no merit in the Appeal. Appeal is dismissed. Bail Bond
of the accused stands cancelled.
(PRAKASH D. NAIK, J.) (NARESH H. PATIL, J.)
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