PETITIONER:
MOHAMMAD ASLAM
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH
DATE OF JUDGMENT22/09/1976
BENCH:
KRISHNAIYER, V.R.
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1976 AIR 2529 1977 SCR (1) 689
1976 SCC (4) 283
ACT
Practice and Procedure--Re-appraisal of evidence by
Supreme Court inspite of concurrent findings of fact, proper
when miscarriage of justice has occurred.
HEADNOTE
The appellant, a cashier in a rural block development
office of Shahjahanpur district, was convicted for misappro-
priating public money. Both the courts concurrently found
that he had pocketed the sum which he claimed to have paid
the Panchayat-Secretary as salary.
The appellant contended that the charge against him was
falsified by the voucher and regular entry of the cash
register regarding the above payment, which had been ticked
and initialled by the Block Development Officer, and pro-
duced in evidence.
Allowing the appeal, the Court
HELD: (1) The proposition of litigative finality at the
High Court level on findings of fact has been affirmed by
this Court, but the exceptions which prove the rule are also
well-established. A conviction of guilt has been rendered
by both the Courts, but certain grave factors conducive to
miscarriage of justice, induce us to make an exception.
The accused is entitled to the benefit of reasonable doubt
owing to the contemporaneous entry in the cash register
coupled with the signature of the B.D.O. the same day, as
against ipsi dixit later. [689 G, 691 H, 692 G---H]
(2) Our observations must serve as catalysts to crash
strategies on white collar crimes. Gross negligence, even
absent mens rea, in handling public funds by those in office
must hold penal consequences as it inflicts double injury on
the poor masses. [694 G--H]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 310
of 1971.
(Appeal by Special Leave from the Judgment and Order
dated 23-4-1971 of the Allahabad High Court in Criminal
Appeal No. 168/ 69 with Criminal Appln. No. 986/69).
Frank Anthony and U.P. Singh, for the Appellant.
O.P. Rana, for the Respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J. Some exceptions disprove the rule.
Cases are legion where the proverbial proposition of litiga-
tive finality at the High Court level on findings of fact
has been affirmed by this Court, but the exceptions which
prove the. rule are also weB-established.
We must at the outset state that this case does not fit
into the conventional legal mould but, nevertheless, pos-
sesses such strange features that our ’ultimate’ power may
legitimately come into play.
690
A petty store-keeper-cum-cashier in a rural block devel-
opment office (in the district of Shahjehanpur) was charged.
with misappropriation of several sums adding up to a little
over Rs. 5,000/-. The charges having been denied and the
real culprit having been pointed out as the boss of the
block development office, the Sessions Court received evi-
dence on both sides, found the testimony of the Block
Development Officer (BDO, acronymically) ’completely false
and unbelievable’ in regard to many of the items of embez-
zlement and made critical observations about his culpability
in respect of many of the malversations. We may have
something to say. about the not unusual phenomenon of the
’small fry getting caught, and the big shark breaking
through the net’ in economic offences where public money is
handled by public servants. For the nonce we may content
ourselves with the statement that the little official in his
twenties--which the accused was--was acquitted of all but
one charge and the misappropriation of Rs. 5,194.82 dwindled
into a solitary fugitive item of Rs. 50/- for which he was
punished with imprisonment for one year a fine of Rs. 300/-.
The conviction was confirmed but the sentence was reduced
by the High Court.
The aggrieved appellant urges before us that the soli-
tary surviving item of misappropriation held proved concur-
rently, had, in fact, been vitiated in the process by funda-
mental flaws. We will proceed briefly to narrate the epi-
sode and examine the tenability of the extraordinary fea-
tures leading to the exculpatory sequel.
The agrestic immensity of Indian backwardness is sought
to be banished by developmental activities through
block-level infrastructures. Jaitipur Block is one such
and it has a nucleus of small officials and some rural
development assistants, the hegemony being vested in the
BDO. The dramaris personae here are the accused, the
stock-clerk-cure-cashier, the BDO (PW 8) and the Panchayat
Secretary (PW 7) whose magnificent salary is Rs. 50/- per
mensem. The prosecution narrative runs long but can be
short if we abandon the plurality of charges and limit the
facts to. the single item of Rs. 50/-. In skeletal brevity,
there was a,Block Office in Jaitipur where a small staff
worked on low salaries to stimulate rural development. The
accused was cashier and used to be entrusted in such capaci-
ty with sums, large and small. The case, as originally
projected, was that Rs. 5,194.82 was committed to his custo-
dy and the whole sum was siphoned off into his own pocket by
various acts of criminal breach of trust. Admittedly it was
the duty of the accused cashier to maintain the cash book
and deal with the monies. Equally clear is the fact that
the head of the office, the BDO, was duty-bound ’to tally
and check the dally entries of the cash book with the rele-
vant vouchers, to affix his signature... after ’checking
the total at the end of the day’.
The block office has, on its rolls, Panchayat Secre-
taries drawing small salaries. One of them is PW 7, on a
monthly pay of Rs. 50/-. Another unfortunate feature of
these. offices, as disclosed in the evidence, is that even
these petty emoluments are paid irregularly pro-
691
ducing both discontent and inclination for manipulation.
That public offices should be so run is not too complimen-
tary. Anyway, PW 7 received his pay for December 1964 on
February 22, 1965 and his pay for the later month of January
1965 he drew a few days earlier on February 15, 1965 (vide
Exhibits Ka 26 and Ka 29). These oddities in disburse-
ments led to the plausible plea by Asiam, the accused, that
P.W. 7 not having received his pittance for the month of
December 1964 even after January had come and gone, pleaded
his dire need for money and received Rs. 50/- as pay for the
month of January 1965 and signed a separated voucher bearing
that date, viz., February I, 1965. It is conceivable that a
little man with a little pay packet, which is tantalizing-
ly postponed, pressurizes the cashier to pay him the small
sum signing a voucher and it need not surprise us if the
cashier gives in to compassion and makes the payment. This
is precisely the case of the accused. To shore up this
plea, he points out a regular entry in the cash register
against the date February 1, 1965 of a payment of Rs. 50/-
as salary for the month of January 1965 to P.W. 7. Rein-
forcement is received from the further fact that this spe-
cific entry of payment--the falsification of which is the
foundation. for the charge of misappropriation of Rs. 50/-
is ticked and ’initialled by the BDO P.W. 8. We have earlier
referred to the practice and the obligation of this officer
to tally and check the daily entries in the cash book with
the relevant vouchers and then to affix the signature after
checking the total at the end of, day. Moreover he had the
special responsibility, as the most responsible officer on
the staff on his own showing, ’to keep the cash balance
found at the end of every day in the cash-chest register’.
He does not do daily physical verification of the cash but
does it on a monthly basis and he keeps the key of the same,
although another key is left with the cashier.
The accused’s contention that he paid the salary of Rs.
50/- to P.W. 7 on February 1, 1965 supported though it is
by an entry in the Books duly initialled by the BDO presuma-
bly after verification with the corresponding voucher has
been rejected by the Courts without advertence to these
spinal circumstances by the superficial plea that P.W. 7 is
seen to have been paid the salary for December 1964 on
February 22, 1965 with a regular entry and a stamped
voucher. P.W. 7, when examined, denied the earlier payment
on February 1, with a touch of dubious candour and owned up
the payment for December supported by the stamped voucher
on February 22, 1965. A streak of mystique generates doubt
in P.W. 7’s testimony because in cross-examination he says:
’1 do not remember as such that along with other officials
the cashier would have given me the salary for the month of
January 1965 for two times by mistake’. In the next breath
he corrects-himself to say that he had not been paid twice.
On the strength of these materials a conviction of guilt has
been rendered by both the Courts and. be the appreciation
right or wrong, we, as the final court should have held back
ordinarily from temptation for reappraisal, vehement argu-
ment notwithstanding. But certain grave factors, condu-
cive to miscarriage of justice have bulked forward to
induce us to make an exception, which we will presently
expatiate
692
There were nine items of misappropriation originally
imputed to the accused. All, but one, remained unproven and
the guilt is now fixed on one of the inconsiderable items.
Not that the littlest sum of public money can be taken on
privately with impunity but that the perspective is coloured
somewhat by the substantial failure of the prosecution to
make out its case regarding all the major items. More
disquieting is the fact that the Single surviving charge
stands or falls on the veracity or unveracity of a solitary
witness appreciated in the light of the conspectus of
circumstances. What are those circumstances ? The BDO,
charged as he is with serious responsibilities including
guardant functions over the finances of the institution, has
sworn that he checks the daily entries in the cash book with
the relevant vouchers and affixes his signature, checks the
total at the end of the day and again affixes his signature.
It is a pregnant piece of evidence that there is a specific
entry on February 1, 1965 in the cash book that a payment of
Rs. 50/- by way of salary to P.W. 7 has been made. The BDO
has signed against the entry which means, in the ordinary
course, he has verified the payment with reference to the
relevant voucher. If this be a fact, the accused has proba-
bly paid the salary, made the necessary entry, shown it
together with the relevant, voucher to the BDO, got his
signature, totalled up the figures correctly and secured the
BDO’s signature over again. The exculpatory impact of
this testimony is sufficient, according to ordinary canons
of criminal jurisprudence to relieve the accused of culpa-
bility since reasonable doubt is generated. The sensi-
ble scepticism about guilt which springs from the BDO’s
signature against the relevant entry is heightened by the
fact that the Finance Handbook referred to by the High Court
in its judgment states that it is the duty of the drawing
and disbursing officer to check each and every entry of
receipt and expenditure recorded in the cash book and peri-
odically to check physically the cash balances. The BDO,
according to the High Court, has made evasive statements to
suppress certain facts and ’spoken some apparent ties’.
Startlingly enough, the Sessions Court has recorded P.W. 8,
the BDO, as false and unbelievable in regard to certain
other charges and gone to the further extent of concluding
that four entries figuring as charges against the accused
had been really made to the BDO himself ’who probably
embezzled these amounts’. The consequential acquittal of
the accused on these four charges has not been disturbed.
In sum, therefore, the conclusion is irresistible that the
BDO, the top officer in full financial control, had behaved
irresponsibly or delinquently with regard to the funds of
the block office, had been described as too mendacious to be
depended and had convicted himself, of gross neglect of
public duty in regard to the checking of the cash register,
out of his own mouth. If we are to attach--there is no
reason for a Court not to do so--weight to the contemperane-
ous entry in the cash register coupled with the signature
of the BDO the same day, as against his ipse dixit
later, the accused is entitled to the benefit of reasona-
ble doubt. There is likely to have been a separate voucher
evidencing the payment of Rs. 50/- which is the subject of
the defalcation because the BDO is not likely to have at-
tested the entry of that payment without checking it up with
the corresponding receipt.
693
Two circumstances fall to be mentioned before the
probative balance-sheet can be struck. The entry of Rs.
50/- on February 1, 1965 is seen scored off. Who did it ?
Can we guess in the dark ? Nothing on record suggests that
the accused alone could have done it There is much credibil-
ity in the theory that with the connivance of the BDO and
the clerks petty sums are quietly abstracted from the
public exchequer, make believe entries are made and attest-
ing signatures appended by the BDO and, if the peril of
detection by higher officers is apprehended, scorings,
additions, alterations and the like are made. It is common
case that in the cash register there are many such cross-
ings, cuttings, scorings and like tamperings. Many scape-
graces were perhaps party to these processes but one scape-
goat cannot, for that reason, get convicted in the criminal
court.
In this context it is pertinent to remember that the
District Accountant, after a fuller examination of the books
of the block offices, has stated that the several embezzle-
ments have been facilitated by the laxity of the BDO who
should be directed to make good the loss. A further recom-
mendation by him to proceed departmentally as against the
BDO and as against the Cashier is also found in the
report. Whether action had been taken against the BDO, the
State’s counsel was not able to tell us.
The sole lip service to the criminality imputed is lent
by PW 7. Did he receive his salary of Rs. 50/- twice over ?
Undoubtedly he was interested in denying it. Doubt hardly
exists of the fact that he got his small December salary of
Rs. 50/- only in February next. Far more likely that in
such a situation he would have pressed for the payment of
Rs. 50/- to be adjusted later. Likewise, his initial ambi-
guity in plainly denying that he had been paid twice en-
hances this suspicion. When the cash affairs of the office
is in a mess, when the Chief is guilty of dereliction, when
the clerks are receiving petty salaries at irregular
intervals, the somewhat tainted testimony of PW 7 is fax too
slender a string to hang the guilt upon, pitted as it is
against the cash register entry by the BDO, apparently after
consulting the payment voucher. The accused was suspended
promptly and therefore this voucher, if it did exist, must
have been in the office and its non-production in court is
not a matter for drawing an inference against the ac-
cused.
We have made this unusual probative survey of the evi-
dence for the sole reason that the bona fides of the prose-
cution, leaving off bigger and going at the smaller, mixing
false testimony with true seriously suspect and holding on
to the conviction of the accused on no evidence, which a
reasonable person reasonably instructed in the law will rely
upon, is neither just nor legal.
The accused, at the time of the offence, was in his
early twenties probably a neophyte or new entrant into a
little racket. Doubts there are about his complicity but
that a man may be guilty is different from saying that he
must be guilty. The dividing line between the two is
694
sometimes fine, but always real. There is undoubtedly
collective. guilt in the conjoint delinquency in the running
of the block development office. Public affairs and public
funds, especially on the developmental front, require far
more integrity, orderliness, activism and financial pru-
dence. Its absence we regret, but the specific guilt of the
particular accused not having been proved, as mandated by
the law, results in his acquittal.
We accordingly allow the appeal.
The guilt-finding function is over, but judges have
accountability to the country to the extent matters falling
within their professional examination deserve sounding
the tocsin. With this alibi we make a few observations.
The popular art of helping oneself to public money, in
little bits or large slices, is an official pathology whose
pernicious spell has proliferated with the considerable
expansion in institutions of public welfare and expenditure
for rural development. From Kautilya’s Arthashastra to
Gunnar Myrdal’s Asian Drama, the vice is writ large and the
demoralising kink in the projects for criminal prosecution
to eradicate these vices in public offices is that more
often than not the bigger engineer of these anti-social
schemes figures as prosecuting witness and the smaller men
in the package deal are put up as sacrificial goats. The
head escapes, the hand is chased down and, when the Court
convicts, cynicism, instead of censure, is the unintended
public response. In a social system of the high and low,
where the wheels of punitive processes are steered by the
former, laws equal in the face quirk unequal at heart.
Crack-down Crime Control itself takes its alignment from the
social philosophy of the agencies of public power. The
present ease is a small symptom of a spread-out disease and
the State, in its highest echelons, determined to down this
rocket of economic offences must launch massive, quick-
acting, broad spectrum prosecutorial remedies, regardless of
personal positions, and leisurely procedural apparatuses, if
high social dividends are to be drawn. The mystique of
,making the dubious officer the veracity vendor in the
witness-box and the collaborating minion the dock-dweller,
is suspected as intrigue to Shelter the upper-berth culprit.
Caesar’s wife, where public interest is at stake, must be
above suspicion, if prosecutorial credibility is to be
popular purchase.
If the nation, poised for socialism, must zero-in on
public office offences, what we have observed must not---and
surely, will not slumber as obiter sermons but serve as
catalysts to crash strategies on white-collar crimes. In a
developing country of scarce resources, husbanding public
funds has a special onerousness. Gross negligence, even
absent mens rea, in handling the nation’s assets by those in
office must be visited with criminal liability as it in-
flicts double injury on that voiceless, faceless, woe-
stricken have-not community which is aplenty. Public power,
under the penal Law, must be saddled with
695
higher degree of care, if Indian jurisdiction is to fulfil
its social mission through developmental legislation. Had
such a law existed, many superior officers routinely signing
away huge sums or large contracts could have been alterted
into better standards by potential penal consequence.
The present case is an instance in point and our parliamen-
tarians we hope, will harken.
M.R. Appeal
allowed.
696