Acquittal restored: a seizure the prosecution never proved cannot be an incriminating circumstance

Justices Ujjal Bhuyan and Atul S. Chandurkar set aside the Bombay High Court's reversal, holding the burden of proving a valid seizure lay on the prosecution and it failed.

A cash counter clerk in the Telephone Department at Aurangabad, accused in 1993 of failing to credit Rs 4.75 lakh of customers' bill payments to the government, was acquitted in 2002, convicted by the Bombay High Court in 2017, and has now been acquitted again by the Supreme Court. A Division Bench of Justice Ujjal Bhuyan and Justice Atul S. Chandurkar held that the High Court had treated the seizure of forty-six articles from the appellant's house as an incriminating circumstance he had failed to explain, when the prosecution had never proved that seizure: both seizure witnesses turned hostile, Sections 100(4) and 100(7) of the Code were not complied with, and no explanation was offered for never giving him a list of what had been taken. The judgment was authored by Justice Chandurkar and is marked reportable.

Rs 8.73 lakh across three months of 1993

The appellant was serving as Cashier-cum-Counter Clerk with the Telephone Department at Aurangabad. Between 1 July and 9 October 1993 he collected Rs 8,73,737 in telephone charges from customers. The prosecution case was that of that sum, Rs 3,88,035 was credited to the government's account belatedly, amounting to a temporary criminal breach of trust, and that a further Rs 4,75,702 was never credited at all despite having been entrusted to him.

On a complaint by the Assistant Accounts Officer dated 11 October 1993, an offence under Sections 409, 477 and 420 of the Indian Penal Code was registered. After investigation, charge was framed under Section 409 alone — criminal breach of trust by a public servant. He denied it and claimed trial.

The system he worked in was described by PW1, the Assistant Accounts Officer. As cash counter clerk the appellant received bill payments from customers against the amounts on their telephone bills. Whatever he collected up to 1 p.m. was to be credited in the bank the same day; the balance went to the Head Cashier. PW1 spoke of a notice served on the appellant asking why amounts received from various customers had not been deposited, which went unanswered, and produced the receipt books and a list showing a credit of Rs 4,75,700. One customer, he said, had deposited Rs 4,930 on 21 August 1993 which reached the government's account only on 25 September.

What the prosecution witnesses did not say

The cross-examination is where the case came apart, and the judgment sets it out witness by witness.

PW1 admitted that the list showing the credits bore neither the appellant's signature nor anything in his handwriting. He also admitted that no record had been produced to show that the receipt books relied on were ever supplied to the appellant, and that he had not personally seen them being supplied.

Four witnesses the prosecution called as panch witnesses were declared hostile. One said his signature had been obtained on a blank paper. A hotel receptionist denied having made any statement to the police and was also declared hostile.

Others helped the defence. A Junior Accounts Officer admitted that no complaint had ever been received against the appellant alleging that he had recovered an amount and not deposited it. A subscriber who dealt in tea powder said he always received receipts when he paid his bills, his telephone was never disconnected, he got no disconnection notice, and the amounts he paid were credited the same day. A Section Supervisor said it was not his duty to issue receipt books at all, that he had issued ten of them to the appellant on the oral instructions of the Accounts Officer, and that a departmental enquiry had been started against him and other staff members over the same matter. A clerk said he had imposed a Rs 10 penalty on a subscriber for late payment, then admitted there was no record of any such penalty; the subscriber himself said he had paid on time, had shown the receipt when the department claimed otherwise, and had no grievance against the department.

Three investigating officers and a panchnama without a signature

The investigation passed through several hands and each left a gap. The first investigating officer admitted that although he had seized documents from the appellant under the seizure panchnama, he did not obtain the appellant's signature on it, and had put no date below his own. A second officer, who took specimen handwriting and signatures from the appellant in the presence of two witnesses, admitted that he did not obtain the appellant's signature on that document either. A third said that apart from filing the chargesheet he had undertaken no investigation.

An Examiner of Documents was also called. He examined the documents sent to him and gave his opinion on 31 December 1997, more than four years after the complaint. The specimen handwriting he worked from was the material the second investigating officer had taken without the appellant's signature on it.

In his statement under Section 313 of the Code the appellant said a false case had been filed against him, and applied for two registers to be called for — the daily cash handover register and the stock register recording the supply of receipt books to the cash counter clerk, both for the period from 1 February to 5 October 1993 — to show that the entire amount had been paid over to the Accounts Officer.

Why the trial court acquitted

The trial court found the prosecution evidence neither specific nor clear. The exact amount collected by the appellant and the amount he thereafter credited had not been stated with any particulars, and the evidence was vague and general. The registers said to have been seized could not be exhibited because the witnesses did not support the prosecution. And the procedure in Section 100(7) of the Code had not been followed in seizing forty-six articles from the appellant's house. On those grounds the charge was held unproved and he was acquitted on 20 February 2002.

The seizure, and where the burden lay

The High Court reversed that acquittal on 12 October 2017, convicting the appellant and sentencing him to a year's rigorous imprisonment with a fine of Rs 5,000, in default a further month.

The Supreme Court held that line of reasoning could not be accepted. The entire prosecution case rests on documentary evidence, and the panchnama on the basis of which forty-six articles were seized is a material part of it. There were serious infirmities in proving that seizure, with both seizure witnesses not supporting the prosecution, and there was an infraction of Sections 100(4) and 100(7) of the Code. In that situation the seizure could not be held duly proved on the investigating officer's deposition alone, without further corroboration. No explanation was given for why a list of the articles taken from the appellant's house was never furnished to him.

The High Court had therefore erred in relying on the seizure and in treating it as an incriminating circumstance for which the appellant had offered no explanation. The burden of proving a valid seizure was on the prosecution, and it failed to discharge it in accordance with law.

Irregularity, prejudice, and the weight of a defective search

The Bench was careful about what it was not saying. Non-compliance with Section 100 does not by itself vitiate a seizure; it is an irregularity in the investigation. But when that factor is considered cumulatively with other factors that contribute to doubting the prosecution case, it weighs in the accused's favour — and, the judgment adds, especially so in an appeal against acquittal.

Two authorities were set out. In Sunder Singh vs State of Uttar Pradesh, AIR 1956 SC 411, where the search of a room produced a bloodstained shirt and trousers and the two men who witnessed it were not respectable inhabitants of the locality, the Court held that the circumstance would not invalidate the search: “It only affected the weight of evidence”, which is a matter for the courts of fact, and this Court would not ordinarily go behind concurrent findings.

In State of Punjab vs Balbir Singh and others, 1994 INSC 96, the Court held that a violation of the provisions on search and seizure, particularly Sections 100, 102, 103 or 165 of the Code, “strictly per se does not vitiate the prosecution case”. Where there is such a violation, what courts must see is whether any prejudice was caused to the accused, keeping the violation in mind while evaluating the evidence and the other relevant factors.

Applied here, the weight to be given to the articles said to have been seized had to be assessed cumulatively with the rest of the material. That material included the admission that no record showed the receipt books had ever been supplied to the appellant, and the complainant's failure to produce the relevant records even though the investigating officer had required them.

Order

Ignoring the absence of material documents and that failure to produce records, the judgment holds, the High Court accepted insufficient material on record to overturn the acquittal. On a reassessment of the entire evidence, the trial court had rightly acquitted the appellant, and its judgment deserved to be restored.

The High Court's judgment of 12 October 2017 in Criminal Appeal No. 278 of 2002 was set aside and the acquittal recorded by the Chief Judicial Magistrate, Aurangabad on 20 February 2002 restored. The appellant stands acquitted of the offence under Section 409 of the Penal Code and his bail bonds are cancelled. The appeal was allowed and the pending interlocutory application disposed of.