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Criminal Appeal Case No. 414 of 1966, decided on 29tn October 1968.

S. 477‑A read with Evidence Act (1 of 1872), Ss. 45, 47 & 67‑Forgery‑Falsification of accounts Proof‑Accused denying his signatures on impugned document Prosecution witnesses attesting signatures of accused neither deposing to have seen accused signing nor any documents signed by accused received by them in reply or submitted to them‑Requirement of law contemplated by S. 47, Evidence Act, 1872, held, not fulfilled Court, in circumstances, held, should have resorted to provisions of S. 45, Evidence Act, 1872 and referred impugned signatures to Handwriting Expert ‑ Word "acquainted" occurring in S. 47, Evidence Act, 1872, explained.

To be acquainted with a person's signature or initials or hand writing the person must actually see the signatory signing or writ ing or when he receives documents purporting to have been signed by the person in answer to his own letters or when the document is submitted to him. Now in the instant case neither of the witnesses has said that they have seen him to sign or that the documents bear ing the accused's signature were received by them in reply to their letters or that they were submitted to them. So the requirement of law as regards the proof of the signature of the accused appellant has not been complied with. In the face of the defence of the accused the Court should have resorted to the provisions of section 45 of the Evidence Act and referred the impugned signa tures of the accused person to an expert.

S. S. Halder for Appellant.

Nemo for the State.

The accused‑appellant before me has been convicted under section 477‑A, Pakistan Penal Code and sentenced to simple imprisonment for 6 months. The prosecution case is that the accused joined Dighirjan High School in June 1956. But he drew the pay and dearness allowances for the months March, April, and May 1956, by signing the relevant registers. There fore, he was charged under sections 477‑A and 467, Pakistan Penal Code. But was charged in the Court of Sessions under section 477‑A, Pakistan Penal Code. All the assessors found him not guilty, but the learned Additional Sessions Judge who held the trial found him to be guilty and convicted and sentenced him as aforesaid.

In this case it appears to me that the principal figure is the Headmaster against whom the trial is pending. So far as the appellant before me is concerned the prosecution did not file any F. I. R. against him. Neither his handwriting nor signatures were sent to the Handwriting Expert.

It appears from the defence of the accused as explicitly taken by him in his examination under section 342, Criminal Procedure Code that he denied signatures in Exhs. 1‑1‑B in the Attendance Register Exhs. 2‑2‑B in the acquaintance Rolls and Exhs. 2‑C‑2‑D in the Dearness allowance acquaintance Roll. In face of this specific denial the evidence the prosecution has been able to give is to be examined. P. W. 1 who proves the signatures and initials has stated that he was the Assistant teacher of the Dighirjan High School, P. S. Nazirpur from February 1959 and prosecution case against the accused persons are related to occurrences of 1956. Moreover, in cross‑examination P. W. 1 admits that he never worked with the accused as teacher. He simply states that the accused Sailendra Nath Halder signed the attendance register during March to May 1956. But that would be contrary to the prosecution case. So far as the acquaintance rolls are concerned his evidence is that the accused signed it after drawing pays from March to May 1956, Exh. 2‑A and 2‑B respectively. Then with regard to the acquaintance roll of dearness allowance for 1956 he states that he knows the signature of the accused, Exhs. 2‑C and 2‑D. So far as the other witness P. W. 2 is concerned he simply states that he knows the initials of the accused and that he knows the signatures of the accused in Exhs. 1 and 2 series. This witness P. W. 2 is only another teacher. It is in evidence that all the books, relevant registers are kept with the Headmaster. There is no evidence by either of the two witnesses examined by the prosecution as to how they came to know the signature or the initials of the accused person. The signature or the initial of a person must be proved to be the signature or initial of that person. It is true that section 67 of the Evidence Act does not itself lay down the mode of proof of such a signature or initial. For that purpose we have to fall back on the provisions of sections 45 and 47 of the Evidence Act. Section 47 of the Evidence Act reads as follows:‑

"When the Court has to form an opinion as to the persons 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 the person in answer to documents written by himself or under his authority and addressed to the person, or when, in the ordinary course of business, documents purporting to be written by the person have been habitually submitted to him."

Now the guiding factor is the word acquainted' occurring in section 47. The word acquainted' has been explained by the Legislature. To be acquainted with a persons signature or initials or handwriting the person must actually see the signatory signing or writing or when he receives documents purporting to have been signed by the person in answer to his own A letters or when the document is submitted to him. Now neither of the witnesses has said that they have seen him to sign or that the documents bearing the accused's signature were received by them in reply to their letters or that they were submitted to them. So in my opinion the requirement of law as regards the proof of the signature of the accused‑appellant has not been complied with.

In the face of the defence of the accused the learned Sessions Judge should have resorted to the provisions of section 45 B of the Evidence Act and referred the impugned signatures of the accused person to ail expert.

The accused challenged the signatures initials as not his own and there is clear evidence of prosecution witness No. 1 that the name of the accused has been put in the register by rubbing out by some other name. It is never the case of the prosecution, that this rubbing out and substitution of the accused was by the accused himself. On the other hand the claim of the prosecution is that these were made by the Headmaster. If the substitution could be made by the Headmaster then I fail to understand why the signatures could not be made also. So far as the initials in the attendance register Exh. 1 series are concerned they clearly show that they were made in one sitting and there is some obvious difference between the admitted initials of the accused occurring in the said register from 2nd June 1956. Exh. A is the proceedings alleged to be proceedings of the meeting of the Managing Committee alleged to be held on 21‑3‑56. It shows that the accused was appointed with effect from March 2nd, 1956 but the words "2nd March" and "March 2nd" occurring in the resolution clearly shows that they were overwritten over the words "2nd June" and "June 2nd". Even the date of the resolution which is dated 21‑3‑56 shows mutilation and change of the month from May to March. This has admittedly been written by the Headmaster. Similarly Exh. B is a copy of the acquaintance roll which is maintained by the school and shows the actual state of affairs. This shows that the teachers used to draw their pay on an acquaintance roll other than the official one. In the particular acquaintances roll the, accused has signed in Bengali. Considering the facts and circumstances of the case I am unable to hold that the prosecution has been able to prove the charge against the accused person. A serious doubt rises in my mind regarding the allegation made against the accused by the prosecution.

I therefore give the accused the benefit of doubt and allow the appeal and set aside the order of conviction and sentence passed against him.

A. S. Appeal allowed.

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