ANJANA JITENDRA SETHversusKISHORE BHAVANIDAS SETH and ORS.

                                                     3 REVN 130.2003.DOC




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION
         CRIMINAL REVISION APPLICATION NO.130 OF 2003
Anjana Jitendra Seth                                   …Applicant
      Versus
Kishore Bhavanidas Seth And Ors.                       …RespondentS


Ms. Ekta Patil, Advocate appointed through Legal Aid for
Applicant.
Ms. R.V. Newton, APP for Respondent No.3.
None for Respondent Nos. 1 and 2.


                    CORAM:                    MADHAV J. JAMDAR, J.
                    PRONOUNCED ON:            08 JANUARY 2026
                    UPLOADED ON:              08 JANUARY 2026

JUDGMENT :


1.       Heard Ms. Ekta Patil, learned Advocate appointed to

represent interest of the Applicant and Ms. Newton, learned APP

for the State.



2.       None appears for the Respondent Nos. 1 and 2.



3.       The challenge in this Criminal Revision Application is to the

Order dated 16th October 2002 passed by the learned Additional

Sessions Judge, Greater Bombay in Criminal Appeal No. 27 of

2002.




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4.       By the impugned Order, the learned Additional Sessions

Judge has allowed the Appeal and set aside the order of conviction

and sentence passed by the learned Trial Court.



5.       The learned Trial Court, by Judgment and Order dated 16 th

January 2002 passed in C.C. No.919/P/1992 convicted both

Accused Nos. 1 and 2 for the offence punishable under Sections

465, 467, 468, 471 read with Section 114 of the Indian Penal Code

and both the Accused were directed to undergo rigorous

imprisonment for one month for various offences and also payment

of fine of Rs.5,000/- each and in default of fine, both the Accused

were directed to undergo rigorous imprisonment for three months

each.



6.       The learned Metropolitan Magistrate, 18 th Court Girgaon,

Mumbai has further directed that substantive sentence passed

under the head of each Section shall run concurrently and

therefore period of imprisonment under each head would be only

one month and fine of Rs.5,000/- each under each head of Section

separately i.e. total fine imposed is Rs.20,000/- each.




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7.       It is the submission of Ms. Patil, learned Counsel for the

Applicant that the Complainant’s husband and Accused Nos. 1 are

real brothers. Accused No.2 is working as Accountant. The subject

fixed deposit receipt was in the business premises i.e. shop. The

Accused Nos. 1 and 2 have fraudulently removed the same from

the said shop and forged the same and fraudulently received

amount of Rs.50,000/-. She submits that PW-2 and PW-3 who were

conducting business along with Accused No.1 were knowing about

handwriting of Accused No. 2 and while transferring the said fixed

deposit from Bank of Baroda, Opera House Branch to University

Branch, Fort, Mumbai, Accused No.2 has submitted application.

She submitted that in fact the letterhead of the business is used.

She therefore submits that the evidence on record clearly shows

that the Accused are involved in the crime and therefore the Order

passed by the learned Additional Sessions Judge in Appeal is

perverse and liable to be quashed and set aside.



8.       Ms. Newton, learned APP submitted that the crime is very

serious, where fixed deposit receipt is forged and same is encashed

and Rs.50,000/- has been fraudulently withdrawn from the bank.




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She therefore, submits that the impugned Order be quashed and

set aside.


9.       Before considering the contentions raised by Ms. Patil,

learned Counsel for the Applicant and Ms. Newton, learned APP, it

is necessary to set out the prosecution case as set out in paragraph

No.2 of the impugned Order dated 16th October 2002, which reads

as under :

         “2. The prosecution case in brief is that on 8.8.1989
         Complainant had deposited Rs. 50,000/- in Bank of
         Baroda. Opera House Branch and she was on record as
         the Guardian. The amount was kept in fixed deposit and
         FDR was also issued. In December 1999 she lost the said
         FDR. An application was given to the Bank for issuance of
         a duplicate. Thereafter on enquiry from the Opera House
         Branch of the Bank is was heard that the FDR was
         transferred to the University/Fort Branch of the same
         bank. Further enquiry revealed that it was transferred in
         the name of Sundaree Saree Emporium Pvt.Ltd, a firm of
         the accused No.1. For such transfer it was requested on
         the reverse of the FDR to make premature payment at
         credit the proceeds to current account No. 2777 and that
         this amount will be used for minors benefit. This account
         No.2777 was in the name of Sundaree Saree Emporium
         Pvt. Ltd. This endorsement is alleged to have been forged
         by the original accused no.2 He was working as an
         accountant in Sundaree Saree Emporium. The signatures
         on the FDR below such request are supposed to be forged
         of the said controlled by the accused no.l. Under these
         circumstances, the complaint came to be lodged and the
         accused were prosecuted.”




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10.       The learned Trial Court in paragraph No. 13 has set out

circumstances, which the learned Trial Court has relied on to

record the finding of conviction. The said paragraph 13 reads as

under :


         “13. I have gone through the record of the case very
         carefully and miutely. It is admitted fact that the accused
         No.1 is the brother of P.W.No.2 and P.W.No.3, There is no
         dispute as about family enimity amongst them on
         account of I am relying upon business and family
         dispute. the following circumstances which is brought
         on record by the prosecution.

         i) That the complainant has deposited an amount of Rs.
         50,000/- in two F.D. R. of Rs. 25,000/- each in the name
         of her minor daughter and sent in the Bank of Baroda.


         ii) It is admitted fact that the accused No.1and P.W.No. 2
         were looking after the shop of Sundari Saree Emporium
         while P. W. No.2 had kept F.D.R. in their shop.


         iii) When the complainant had gone to Bank of
         Baroda, Branch Opera House in order to make an
         application for getting duplicate F.D.R. she learned that
         the F.D.R. was transferred from Bank of Baroda Opera
         House Branch to Bank of Baroda, University Brnah, Fort.
         Letter written by Accused No.1 to the Bank of Baroda,
         opera House Branch is on letter head of Sundari Saree
         Emporium and on the basis of endorsement made on
         reverse side of F.D. R. Exh. P-2 those F.D. R. were
         transferred to University Branch.


         The signatures of accused No.2 have been identified by
         P.W. No.2 and 3.




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         v)    The evidence of P.W. No.1 have been supported by
         P, W. No. 2 and 3. The evidence of handwriting expert
         which early shows that the documents Bank have signed
         these F.D.R. i.e. accused No.2.”


11.      In view of above circumstances, the learned Trial Court has

held that the chain of the circumstances is complete.



12.      The learned Trial Court has also relied on handwriting

expert who has been examined as PW-4. It has been held by the

learned Trial Court that the handwriting expert has recorded in his

opinion that the Complainant has not signed said Exhibit P-2 and

Exhibit P-1 to P-12 and on the basis of forged letters and signatures

appearing on the fixed deposit amount of Rs.50,000/- was

transferred from Bank of Baroda, Opera House Branch to the

University Branch, Fort, Mumbai.



13.      The learned Appellate Court, while reversing the Judgment

and Order of conviction passed by the learned Trial Court has

considered the expert evidence in detail and discussed the same in

paragraphs 7, 8 and 9, which reads as under :


         “7. P.W.4 Bhalchandra Biradar is handwriting Expert.
         In his evidence he has stated that on the reverse of FDR
         there are two signatures and for the purpose of his




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         identification he has marked them as q-1 and q-2, He
         also examined signature on the letter dated 15.5.1990
         from Ms. Manasi J. Seth addressed to the Manager of
         the Bank, what is important is the fact that he marked
         this signature as q-3 One letter from Anjana Jitendra
         Seth dated 16.12.1991 addressed to Manager of Bank of
         Baroda and the signature thereon marked as q-4, What
         is important is the fact that he marked only three
         signatures on two disputed document as q-1, 1-2 and q-
         3. The other signatures on various documents marked as
         Al to A16 are supposed to be admitted signature on the
         documents.

         8. This witness has then stated that the person who
         wrote or who made the signatures at A1 to A16 did not
         write the disputed signatures q-1, q-2 and q.3. In other
         words therefore this evidence indicate that in the
         opinion of the handwriting expert the disputed
         signatures were not of the complainant. If this evidence
         is accepted as it is then it will mean that the signatures
         on the FDR and the letter of transfer of FDR are not of
         the complainant. The evidence does not prove that these
         signatures =-1, q-2 and q-3 were made by and forged by
         either of the two accused. Unfortunately that part of the
         prosecution case of the allegation is not supported by
         the evidence of handwriting expert. In other words by
         the evidence though proved it is not proved that it is
         committed by the accused. There is no evidence worth
         its name even of handwriting expert to show that it is
         done by the accused. The remaining evidence is that of
         the investigating officer which does not help in solving
         the abovementioned problem.


         9.    The sum and substance of the evidence is
         therefore that on the one hand there is no conclusive
         proof that the FDR was in possession of the accused
         No.1 or the accused No.2. The evidence of P.W.1 Anjana
         and P.W. Z Jitendra can only create a suspicion that the
         FDR was in the shop and to which that the complainant
         and her husband did not have any access because of the




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         family dispute and that is how it is presumed by the
         witnesses that the FDR went into possession of the
         accused no.1. This is therefore based upon presumption
         rather than any positive knowledge on their part.”


14.      The learned Appellate Court has also recorded additional

reasons in paragraph no.10, which reads as under :


         “10. Secondly as far as the transfer of the FDR is
         concerned, there is no officer of either of the two
         branches of the bank examined by the prosecution. No
         officers from the Opera House bank is examined to
         indicate as to how the FDR came to be transferred to the
         Fort branch, who came to make that who gave the letter
         for transfer, etc. There is none to tell the court as far as
         the Fort branch is concerned. Again nobody is examined
         by the prosecution to tell the Court and as to and on
         that basis the FDR was transferred in the account of
         Sundari Saree Emporium. On the other hand what was
         the change in the name of the firm, Whether there was
         any reconstitution of the firm, whether there was any
         difference in the account of the firm, Whether the
         husband of the complainant was ousted even from
         operating that account of the firm, It is nowhere
         clarified by evidence on record. This is because there has
         to be positive loss to the complainant and/or her
         husband. The loss could be only when the amount is
         transferred to some account which cannot be operated
         by the complainant and/or her husband unfortunately
         the witnesses do not say anything about it and no,
         officer of the bank is examined.”

15.      Thus, what the learned Additional Sessions Judge has held

that although on the basis of handwriting expert, it can be held

that the disputed signatures are not of the Complainant, however it




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is not conclusively proved that the disputed signatures are of the

Accused.



16.      The learned Appellate Court has also held that no officer of

either of the two Branches of Bank of Baroda, were examined by

the prosecution regarding letter of transfer. In paragraph-11, the

learned Appellate Court has held that the evidence of the witness

i.e. PW-1 Anjana and PW-2, Jitendra that the subject handwriting is

the handwriting of Accused No.2 is not supported by opinion of

handwriting expert and what is proved is that the said signatures

are not of the Complainant. Learned Appellate Court therefore

held that it is not conclusively proved that the forged signature is

that of Accused No.2.



17.      Thus, a possible view of the matter has been taken by the

learned Additional Sessions Judge. This is a revision challenging

the Order of acquittal passed by the learned Additional Sessions

Judge in Criminal Appeal No. 27 of 2002. As per the settled legal

position, if a possible view of the matter is taken and even if

another view is also possible, the Order of acquittal should not be

interfered.




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                      18.      The learned Appellate Court by elaborately considering the

                      evidence on record has given detailed reasons while setting aside

                      order of conviction passed by the learned Trial Court. Thus, in the

                      facts and circumstances, no case is made out for interference in the

                      impugned Order of acquittal.



                      19.      Accordingly, Criminal Revision Application is dismissed.



                      20.      This Court places on record appreciation of assistance

                      rendered by Ms. Ekta Patil, learned Advocate appointed to

                      represent interest of the Applicants.


BHALCHANDRA                                                          (MADHAV J. JAMDAR, J.)
GOPAL
DUSANE

Digitally signed by
BHALCHANDRA
GOPAL DUSANE
Date: 2026.01.08
20:35:47 +0530




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