Judgment

DUA, J. :- The appellant in this appeal by special leave was tried in the Court of Session for Greater Bombay at Bombay for offences under Section 467, under Section 471 read with Section 467 and under Section 420, I.P.C. According to the prosecution the appellant was running an octroi clearing agency under the name and style of "National Octroi Clearing Agency" at the Mulund check-post. He used to attend to certain transactions relating to the transport companies, one of those companies being the Montgomery Transport Company. On December 16, 1968 a truck belonging to the said transport company bearing No. MPH 2147 arrived at the check-post carrying a Depleix Machine to be delivered to Messrs. Imperial Tobacco Company. There were two drivers and one cleaner in the truck. On being approached by them the appellant telephoned to manager Bakshi of the Transport Company to arrange for the payment of octroi which amounted to more than Rs. 8,000/-. The Manager, Bakshi and Director, Inderjit Singh went to the Imperial Tobacco Company the following day and after getting Rs. 8,196/- for the octroi reached the Mulund check-post. The amount was handed over to the appellant in the presence of the driver. Actually only Rs. 8,180/- were required for the octroi with the result that Rs. 16/- were paid back to Messrs. Imperial Tobacco Company by means of a cheque. During the investigation of another case arising out of an alleged forged receipt relating to octroi in respect of some imports by Messrs. Pure Drinks Private Ltd., it came to light that proper octroi had not been paid on December 17, 1968 in respect of the transaction in question in the present case. The Assistant Assessor and Collector, Shri Karkhanis, after sending his Superintendent Govind Charan to the office of Messrs. Imperial Tobacco Company he himself also visited the Company s office and they both felt that the receipt for the payment of octroi held by the said Company was not genuine. Having failed to trace the necessary relevant documents in the office files Shri Karkhanis lodged the complaint in February, 1969 and a case was registered. After preliminary enquiry under Ch. XVIII, Cr. P. C. the appellant was committed for trial to the Court of Session. According to the trial Court the following points arose for determination :

"1. Whether it is proved that the receipt, Article A is a forged document ?

2. Whether it is proved that it is the accused who forged that receipt with intent to commit fraud ?

3. Whether it is proved that the accused used this receipt as genuine knowing it to be forged ?

4. Whether it is proved that he cheated the Bombay Municipal Corporation, as alleged ?

5. Whether it is proved that the accused cheated the Imperial Tobacco Co., of India Ltd., as alleged ?"

The conclusions of the trial Court on these points were :

"1. In the affirmative.

2. Not proved.

3. In the affirmative.

4. In the affirmative.

5. Not proved."

The evidence in this case is mainly, if not wholly, circumstantial and about 20 witnesses were examined including a handwriting expert. The trial Court felt that the case required evaluation of the evidence of Bakshi (P.W. 4), Inderjit Singh (P.W. 18) and Handwriting Expert (P.W. 17). Driver Balwant Singh was not examined in the case. The trial Court in a lengthy judgment exhaustively discussed the evidence of these witnesses. It did not place implicit reliance either on Bakshi (P.W. 4) or on Inderjit Singh (P.W. 18) as indeed in the testimony of both of them the trial Court found partly reliable and partly unreliable statements. The Court did not feel inclined to hold that their evidence was wholly unreliable. On evaluation of the evidence of the Handwriting Expert the trial Court felt that the receipt in question could not necessarily be held to have been forged by the appellant. After this observation follows the following passage in the judgment:

"I do not however, feel that this earns an acquittal for him. The direct charge regarding the fo