Mohammad Aslam Vs. State of Uttar
Pradesh  INSC 229 (22 September 1976)
FAZALALI, SYED MURTAZA
CITATION: 1976 AIR 2529 1977 SCR (1) 689 1976
SCC (4) 283
Practice and Procedure--Re-appraisal of
evidence by Supreme Court inspite of concurrent findings of fact, proper when
miscarriage of justice has occurred.
The appellant, a cashier in a rural block
development office of Shahjahanpur district, was convicted for misappropriating
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 produced 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]
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 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
We must at the outset state that this case
does not fit into the conventional legal mould but, nevertheless, possesses
such strange features that our 'ultimate' power may legitimately come into
690 A petty store-keeper-cum-cashier in a
rural block development 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 evidence 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 embezzlement 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.
The conviction was confirmed but the sentence
was reduced by the High Court.
The aggrieved appellant urges before us that
the solitary surviving item of misappropriation held proved concurrently, had,
in fact, been vitiated in the process by fundamental flaws. We will proceed
briefly to narrate the episode and examine the tenability of the extraordinary
features 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
capacity with sums, large and small. The case, as originally projected, was
that Rs. 5,194.82 was committed to his custody 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 relevant
vouchers, to affix his signature... after 'checking the total at the end of the
The block office has, on its rolls, Panchayat
Secretaries 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 pro691
ducing both discontent and inclination for manipulation.
That public offices should be so run is not
too complimentary. 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
disbursements 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 tantalizingly 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. Reinforcement is received from the further
fact that this specific 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 presumably 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
'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 argument notwithstanding.
But certain grave factors, conducive 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 probably
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 culpability since reasonable doubt is generated. The
sensible 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 periodically 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 contemporaneous 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 reasonable 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 attested
the entry of that payment without checking it up with the corresponding
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 credibility 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 attesting
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 crossings,
cuttings, scorings and like tamperings. Many scapegraces were perhaps party to
these processes but one scapegoat cannot, for that reason, get convicted in the
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 embezzlements have been facilitated
by the laxity of the BDO who should be directed to make good the loss. A
further recommendation 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 ambiguity in plainly denying
that he had been paid twice enhances 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 accused.
We have made this unusual probative survey of
the evidence for the sole reason that the bona fides of the prosecution,
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 prudence. 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, quickacting, 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
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 one rousness. Gross negligence, even absent mens
rea, in handling the nation's assets by those in office must be visited with
criminal liability as it inflicts double injury on that voiceless, faceless,
woes tricken 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 fulfill 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
The present case is an instance in point and
our parliamentarians we hope, will harken.
M.R. Appeal allowed.