AI Drafter 
TaxTMI 
TaxTMI 
2016 (7) TMI 1667
X X X X Extracts X X X X
X X X X Extracts X X X X
....s and for running small businesses and for development of land etc. Upon recommendation of the Block Development Officer (BDO), the bank disbursed these loans to the beneficiaries. Appellant-Sukh Ram was a Gram Sewak, Navgaon under Arki Sub-Division during said period, 1983 to 1986. 3. It is the case of the prosecution that Appellant-Sukh Ram, Gram Sewak, while submitting applications on behalf of the villagers for these loans, was involved in misappropriation of loan amounts by forging their signatures and thumb impressions on the applications and acknowledgement receipts. All three appeals have been heard together as the offences committed by the same accused persons Appellant-Sukh Ram and Ors. as also the modus operandi of committing the forgery and falsification of records being the same. Criminal Appeal No. 224 of 2012 is taken as the lead case. 4. On the basis of the preliminary enquiry, it came to light that PW-5 Nathu Ram, PW-7 Kirpu and PW-8 Garja Ram had loans disbursed to them despite not having applied for the loans. Consequently, a case was registered against the Appellant-Sukh Ram, Balbir Singh-Block Development Officer and Arun Kumar Sood, Branch Manager, UCO B....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eal before the High Court assailing the correctness of the decision of the trial court. The High Court differentiated the cases relied upon by the trial court from the case at hand on facts as also on law. The High Court pointed out that even though the executive magistrate before whom the specimen signatures were given did not have the authority to enquire into or try the case; however, PW-5 and PW-7 gave specimen signatures voluntarily during the course of investigation and differentiated the cases relied on by the trial court. High Court relied on the decision of this Court in Vijay alias Gyan Chand Jain v. State of M.P. 1994 SCC (Crl) 1755 : (1994) 6 SCC 308 to hold that the exercise of power Under Section 73 of the Evidence Act does not apply in cases where the investigating officer approaches the executive magistrate or tehsildar for taking specimen signatures or writings or where specimen is admitted by the accused or concerned persons. 7. On the charges of criminal conspiracy, High Court accepted the plea made by Balbir Singh (BDO) that he sanctioned the loans because the applications were verified by the Appellant. High Court acquitted Balbir Singh (BDO) observing that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... impugned judgment of the High Court and also material on record. 11. During the relevant time, admittedly, Appellant-Sukh Ram was posted as Gram Sewak and he was to collect applications from the prospective loanees duly signed, thumb impressions marked by them and certain columns of the application were required to be filled up by him. After that, the loan papers were presented to BDO-Balbir Singh and BDO used to sanction loan and subsidy and then send a letter of sanction to the Bank Manager-Arun Kumar Sood, who after opening the account of loanees and after following the requisite formalities, used to disburse the loan and subsidy to the beneficiaries. From the very beginning, the concerned officials were required to scrutinize the papers i.e. economic viability, technical feasibility and antecedents of the beneficiaries and after doing this, beneficiaries were asked to execute the documents like application, term loan agreement, hypothecation agreement, proforma bills etc. In all these cases, case of the prosecution is that neither the loan amount nor the subsidy was actually disbursed to the beneficiaries but was misappropriated by the Appellant and others. 12. To substa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt authority before whom the fingerprint and handwriting of the witnesses could be taken as no proceeding was pending before the executive magistrate. In this regard, trial court placed reliance upon Sukhvinder Singh's case and held that the opinion evidence of handwriting expert cannot be used against the accused. 15. In Sukhvinder Singh's case, it was held that the direction given by the Tehsildar-Executive Magistrate to the accused to give his specimen writing was clearly unwarranted and, therefore, the said specimen writing could not be made use of during the trial and the report of handwriting expert was rendered of no consequence at all and could not be used against the accused to connect him with the crime. It was held that the direction to an accused to give specimen handwriting can only be issued by the court holding enquiry under the Code of Criminal Procedure or the Court conducting the trial of such accused. 16. High Court differentiated Sukhvider Singh's case from the case at hand on facts as also on law. High Court pointed out that in the matter at hand, admittedly, the authority-Executive Magistrate before whom the specimen signatures were given did....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... enabling the Court to compare' is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further, Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing Under Section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person o....