Bangalore District Court
Y. Manjunath vs State Of Karnataka on 23 January, 2023
1 Crl. Appeal No.2331/2018
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH 70)
Present: Sri. Rajesh Karnam K., B.Sc.,LL.B.,LL.M.,
LXIX Additional City Civil and
Sessions Judge, Bengaluru.
Dated this the 23rd day of January, 2023
Crl. Appeal No.2331/2018
APPELLANT : Y. Manjunath
S/o Late Yellappa,
Aged about 50 years,
R/at No. 24, 2nd Cross,
2nd Main, Vijaynagara,
Bengaluru-560040.
[By Sri.S.A.H., Advocate]
V/s
RESPONDENT : State of Karnataka
By Vidhana Soudha, P.S Vidhan Soudha, Ambedkar Veedi Bengaluru-560001.
: JU DG MEN T :
This appeal is filed by the Appellant being aggrieved by the judgment passed in CC.No.2934/2007 on the board of 8th Additional CMM, Bangalore dated 16/11/2018 which is impugned in this appeal. 2 Crl. Appeal No.2331/2018
The parties are referred to their original ranks as before trial court.
2. The Essential material facts lead to this appeal succinctly is as follow:-
The appellant submits the jurisdictional Vidhana Soudha police have filed the charge sheet against appellant for the offences punishable under Section. 415, 420, 468, 471 of IPC. The allegation is accused/appellant had forged date of birth as 23/11/1962 instead of 23/08/1962 in his record while submitting application for the job in the Secretariat of Karnataka State Government. The transfer certificate of accused has been forged and used as genuine document and on conducting departmental enquiry accused has been discharged from the service. On the orders of concerned the authority has been directed to lodged the complaint before the jurisdictional police.3 Crl. Appeal No.2331/2018
3. The Jurisdictional police registered crime No.18/2005 for the offences punishable under Section. 415, 420, 468, 471 of IPC and after investigation filed charge sheet. The trial court on a enquiry has come to the conclusion the accused is responsible for forgery and accordingly after conclusion of trial recorded 313 statement and convicted the accused for the offence punishable under Section 415, 420, 468, 471 of IPC. accordingly appellant has come up with this appeal.
4. The grounds of appeal as per the accused is that the trial court failed to considered the material on record in a proper prospective. The evidence is not considered in appropriate manner, even though witnesses for prosecution failed to appear for cross examination inspite of application being filed by the appellant for recalling the witness these were not considered but however trial court proceeded to convict the appellant without meticulously, scrutinizing and 4 Crl. Appeal No.2331/2018 finalizing the entire materials on record.
5. The appellant submits the PW.1 admitted that the application has been meticulously, scrutinized before finalization of selection. Infact the PW.1 supported custodian of these documents. After verification of the date of birth and other particulars the candidates are selected. PW.1 having personal vendetta and to victimize appellant, make believe concocted documents and falsely implicated the accused who is innocent of the alleged offence. The appellant is rather not responsible for the alleged offence he is not person who has stamped the forging date of birth or tampering and the custodian is responsible to that effect as such conviction of the accused is opposed to facts and law.
6. The appellant submits in the evidence of PW.5 the Scientific Officer has given opinion that there is no suspicion towards the appellant having taken part in the alleged forgery since this witness has deposed there is no 5 Crl. Appeal No.2331/2018 any substantial material to show that only accused alone is responsible for the alleged forgery this witness has deposed there is disper to conclude whether the correction has been made by particular person. Under these circumstances that, benefit of doubt is to be given to the accused rather on the basis of the same alone accused cannot be held responsible therefore the appreciation of evidence of PW.5 and Ex.P.22 the conclusion arrived by the trial court is erroneous.
7. The appellant submits further the author of the Ex.P22 cannot be the accused but even then by considering Ex.P.21 even though the evidence of PW.5 is not conclusive proof, the trial court erred in the relying on citations AIR., 1997 SC 322, AIR., 1983 SC 126, 2010 Crimes (3) 113 Supreme Court and 2010 (3) Crimes 212 SC the citations have no relevance to the present facts even then trial court misguide and came to a wrong conclusion and convicted the accused which is opposed 6 Crl. Appeal No.2331/2018 to facts.
8. The material witnesses have not turned up for cross examination their evidence should have been discarded but trial court without giving opportunity to the accused to cross examine the witnesses has resulted in gross in justice. The efficacious and fair trial has been denied to the accused therefore the conclusion arrived by the trial court is based on assumption. Infact the concept of criminal jurisprudence that, the doubtfulness in the evidence benefit is to be given to the accused it is legal Maxim concerning criminal jurisprudence that 100 culprits may be let go free but not a innocent should be punished turned by the trial court accordingly has come up with this appeal.
9. Heard both sides.
10. On basis of the material on record the point for consideration are;
7 Crl. Appeal No.2331/2018
1. Whether appellant proves the judgment in trial court is opposed facts and law?
2. Whether the appellant proves inter-
fence of this court is need a in the order passed by the trial court which is impugned in the appeal?
3. What order?
11. My finding to the above points as follow:-
POINT NO.1 ; In the partly affirmative POINT NO.2 : In the partly affirmative POINT NO.3 ; As per final order, on the following;
: REA S ON S :
12. POINT NO.1 to 2:- The appellant has file the present case being aggrieved by the order of conviction passed by trail court wherein the trial court has held accused/appellant responsible that the transfer certificate has been forged documents as a genuine document. Secondly accused has submitted false certificate of driving experience about his previous employment. The consideration of evidence of PW.1 who 8 Crl. Appeal No.2331/2018 had vendetta against the present appellant for his Secretaryship at the secretariat, one Rajanna who was Senior to PW.2 has been removed from the post of secretary at the instigation of PW.2 as such the present appellant being follower of the said Rajanna is also victimized by making a false complaint. Infact the consideration of PW.5 evidence of Scientific Officer not a conclusive proof even then trial court on relied on the evidence and as such the decision arrived by the trial court is opposed to facts and law. The conclusion of trial court in considering Ex.P.22 and Ex.P.21 and even the rejection of application filed under Section 311 of Cr.P.C to recall the material witness are all the in the trial conducted by the trial court and if they are all given importance and proper appreciation appellant would have succeeded on merits. Further the trial court relying on AIR 1997 SC 322, AIR 1983 SC 126 the decisions are not applicable to the facts on hand even them by 9 Crl. Appeal No.2331/2018 assumption and presumption has proceeded to convict the accused which is impugned in this appeal.
13. The Learned appellant counsel Sri. SAH submits at the time of selection the process is duly scrutinized, at the time of complaint there is no any discrepancy observed in the selection process and there is no document disclosing private service is placed, there is only to disclose past government service is provided in the notification. Therefore the document placed by the accused of private service has no significance on selection process.
14. The appellant counsel argues that the speaker of the house, is not a competent person to dismiss accused in the cross examination of PW.1 at Page 2 material contradiction has been got elicited. However the trial court has failed to consider the same. The PW.1 in his cross examination dated 18/04/2009 has deposed his working as under secretary since 6 years and 10 Crl. Appeal No.2331/2018 accused is personally known to him accused was appointed as driver on backlog. Further there was age relaxation for filling the post under backlog. The application has been called in the month of august 2002. This witness has specifically admitted he was not working in the post of under secretary at the time of incitation of the proceedings. The learned counsel for the appellant argues no where the evidence of PW.1 mentioned that the application of the accused was defective. Therefore when has been selected as per procedure the allegation now made are only after thought. This witness has deposed that the selected candidate will be notified.
15. The Learned counsel for the appellant submits one T.Rajanna was secretary in their department the said secretary has not issue any order in this regard. The witness admitted the said secretary Rajanna is competent to initiate administrative action therefore the 11 Crl. Appeal No.2331/2018 action undertaken by the speaker is opposed to procedure. The witness has specifically admitted the transfer certificate produced along with the application was genuine and this witness has not enquired about work of the present appellant with universal software access and it is further admitted BMTC, it is not government but corporation. In page 4 of the cross of PW.1 it is admitted the concerned section officer is the custodian of documents and said section officer is subordinate to the PW.1. it is further admitted accused was terminated from service only on 02/02/2005. It is further admitted the PW.1 authority have not referred the matter to concerned school for confirmation of date of birth and similarly whether the confirmation of other, driver appointed is verified or not is not known to this witness. It is been specifically admitted that the cast verification of the selected candidate will be done immediately after selection only after confirmation of 12 Crl. Appeal No.2331/2018 genuinity and authenticity the appointment order will be issued. It is specifically admitted by the witness in page 4 of his cross examination at last page that they have sent for confirmation of caste verification only on 07/01/2005 which is marked as Ex.D.1. It has been specifically admitted that the so called forgery has not been traced till 07/01/2005. Therefore the Tippani note made therein does not disclose appellant has committed irregularity. It is specifically admitted that the genuine certificated produced by the accused did not have any disqualification regarding age for his appointment. This witness depose speaker has passed termination order in writing. This witness has specifically admitted another Murthy and Rajanna are also removed from the service as of accused. Therefore complaint made by the PW.1 itself is false therefore the specific admissions of the PW.1 that one Secretary Rajanna and another Murthy were removed. And present appellant being stern supporter of 13 Crl. Appeal No.2331/2018 said Rajanna he has also been directed to be removed from service. The order passed by was malicious one the learned counsel for the accused argues in evidence of PW.2 in the cross examination dated 18/04/2009 at page 3 this witness has specifically deposed he has not stated before court that accused was serving as BMTC driver. And this witness PW.2 has specifically admitted he does not know the involvement in the present case. This witness has specifically deposed is unaware of the application submitted by the accused, further deposes the application submitted by the accused was in order. This witness has specifically admitted said Rajanna was secretary when this witness PW.2 was additional secretary and only after removal of Rajanna this witness has been promoted as secretary. It is further admitted that witness is 6 months younger to the said Rajanna.
16. In the evidence of PW.2 he has made clear that this witness PW.2 could not have got promotion as 14 Crl. Appeal No.2331/2018 secretary unless T.Rajanna was removed who is 4 years younger than the present petitioner. Learned counsel for the accused submits the PW.3 though deposed about the Ex.P.9 and 10 producing admission register extract has failed to keep herself for cross examination as such the document placed by PW.3 is un reliable. The PW.4 has deposed about to delivering the sealed cover given by the concerned authority on 10/05/2005. The PW.5 is the Scientific officer FSL who depose about questioned documents, this witness has deposed the relevant exhibits placed by Ex.P.5 has no relevance since documents are not authentic. The PW.5 has specifically deposed he cannot give opinion with regard to Ex.P.14 document.
17. The PW.6 is the PSI who conducted the investigation this PW.6 has deposed about conducting the investigation and also identifies the documents on record. The cross examination of PW.6 he has deposed 15 Crl. Appeal No.2331/2018 he can identify the accused. This witness in his cross examination at page 6 has deposed that the PW.3 has been requested to produce original transfer certificate of Manjunatha.Y appellant but only the admission register extract is produced by Smt. Prabhavathi PW.3. This witness has admitted specifically in cross examination dated 25/04/2013 that he has not visited secretariat to collect document personally. The PW.6 has deposed he has not personally verified the document sought by the appointing authority from accused he further admits he has not personally verified the documents. Under these circumstances order of conviction passed by the trial court is opposed to facts when there is no any material placed by the prosecution in support of its case. In the absence of material of witness in corroboration the evidence of PW.6 cannot be relied upon is the argument of defence. The principal is examined as PW.7 this witness has not kept himself for cross examination the 16 Crl. Appeal No.2331/2018 PW.8 is the secretary who was working on the date of compliant in Karnataka legislative assembly secretariat. This witness has deposed Manjunatha Y has appeared for backlog vacancies of driver. After driving test interview only accused was appointed however as on 13/12/2002 only appointment order of accused was issue in the cross examination of this witness deposes he does not know how many post were called in the notification therefore when there are discrepancies in the evidence of the material witness the reliance placed by the trial court on these witness evidence does not finds support against the prosecution case.
18. The Learned counsel for the accused submits other than these witnesses there are no material witness examined therefore the allegations made, that the certificate filed by the accused concerning universal software access, the question of accused age being within prescribed, therein does not make it believe that 17 Crl. Appeal No.2331/2018 accused is guilty since in the Ex.P.22 the date of mentioned is 18/11/2006 on the letter of IO this Ex.P.22 came into existence therefore as there is no any address mentioned in the universal software access itself does not make that such company is not in existence. Therefore the verification made by the authority itself is not in accordance with the procedure therefore considering all these false statements of the PW.1 the conviction order passed by the trial court is opposed to facts.
19. The learned counsel for the appellant submits the Para 22 of the judgment wherein the appreciation of FSL report being considered as the sole basis for convicting the accused is not proper. The learned counsel for accused has placed reliance on Judgment of Hon'ble Supreme Court AIR 1977 Supreme Court 1091 Part (A) Evidence Act (1 of 1872), S.45- Evidence of handwriting expert- Conviction solely on expert opinion-Permissibility 18 Crl. Appeal No.2331/2018 Cr. Rev. No.314 of 1973, D/- 12-09-1975 (Punj.) Reversed, It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to base a conviction solely on expert opinion without substantial corroboration. This type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. Case law traced.
And submits therefore the reliance placed by the trial court only on the expert evidence that when the expert has answered in his cross examination it is not clear in whose handwriting the questioned document namely Ex.P.2 the modifications are being made, the evidence of PW.1 that it was in the custody of office subordinate makes it clear that at the instance of PW.2 19 Crl. Appeal No.2331/2018 who desired to be next secretary when the said Rajanna is removed from the secretary post and the present appellant is identified as a person of the said Rajanna. The appellant is victimized at the hands of PW.2 but the trial court even though there is no substantial materials to point out other than the accused the case of prosecution pin pointedly discloses accused is responsible even then any benefit of doubt that may arise is to be extended to the accused only. Therefore the inference drawn by the trial court is opposed to facts therefore the conclusion arrived is based on misc in affirmation and no post is placed beyond reasonable doubt so as to bring home the guilt of accused, accordingly seeks acquittal.
Further relies on citation AIR 1992 SC 2100 Part
(c) Evidence Act (1 of 1872), S.45, S.73- Court has to decide in each case on its own merits -Comparison of disputed writings with specimen admitted writings by 20 Crl. Appeal No.2331/2018 court - Depends.
And argues in Supreme Court Case in a case of Murder the Hon'ble Supreme Court has extended the benefit of doubt to the accused therefore this court may be please to extend similar benefit of doubt infavour of the present accused as there are no cogent material to prove the guilt of accused. Further relies on citation reported in 1983 SCC Online Karnataka page 24. The facts defers even then the appreciation of the expert opinion has been held by the Hon'ble High Court of Karnataka and the expert opinion evidence cannot be a sole basis so as to conclusion about any document. Further relies on citation reported in AIR 1998 Calcutta 150 S.A.No.103/1986, D/- 30-9-7997.
(A) Evidence Act (1 of 1872), S.45 - Expert's evidence - Reliability - Relief claimed was for declaration that gift deed in question was forged and fabricated document- Court declaring it as forged document by relying on evidence of finger print expert- Non-consideration of other evidence and 21 Crl. Appeal No.2331/2018 direct oral evidence though was available- Discarding of evidence of defendants regarding attestation and execution of document in question- Order not proper- Evidence of expert cannot outweigh direct evidence.
21. The learned reason of the learned appellate court below is that no amount of oral evidence can outweigh the opinion of the expert in this regard. In my view this is absolutely wring approach under the law. The settled proposition of the law is just the reverse and that has been decided by the two decisions reported in AIR 1962 Orissa 7, AIR 1981 NOC 93. Both the two decisions have settled that the evidence of the.
And further relies and another citation AIR 1983 Allahabad 54 (B) Evidence Act (1 of 1872), S.45- evidence of handwriting expert- Expert not well-versed with language written in document- He cannot prove signature of person on comparison of handwriting on document.
Another Citation AIR 1989 Allahbad 133 Part 2 nd (D) Evidence Act (1 of 1872), S.45-Expert evidence - Admissibility - His competency as expert must be established- He should be subjected to 22 Crl. Appeal No.2331/2018 cross examination- Expert's report not straightway admissible without examining him. Of all kinds of evidence which are admissible the opinion evidence is of he weakest kind.
And finally relies on 2018 Crl. L.J. 371 Tripura High Court in para 4 the observations made by the Hon'ble Supreme Court in S.W. Palanitkar V/s State of Bihar (2002) 1 SCC 241 Cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction the order to constitute offence cheating the intention to deceive should be in existence. At the time when inducement was made is necessary to show that a personal hand fraudulent or dishonest intention at the time of making the promise. Say that committed an act of cheating. Therefore these ingredients missing in the present case conclusion arrived by the trial court on evidence which is obstruct only and convicting the accused is opposed to law.
20. The Learned PP argues basically Ex.P.2 is the documents placed on record is a forged document wherein the date of birth 23/08/1962 is the original date which 23 Crl. Appeal No.2331/2018 has been corrected as 23/11/1962 expert opinion is obtained to that effect which is direct and opinion is given that it is specifically altered but the person who has altered cannot be opined is the opinion as dispher means the person cannot be directly put on responsibility by way of inference to be drawn by the expert is not possible. At this juncture the court has to draw the inference. Firstly by changing the date of birth who is going to the benefit. It is a public document the employment that was intended to be obtained by the accused as he has been dismissed from the service in BMTC by altering the date of birth definitely the person is same may not be inferred at the first instance. Therefore the discussion made by the trial court as accused was having any intention to join the service in the Government he has altered the same and filed before the authorities.
21. The learned PP submits there is presumption with regard to record maintained by the authorities in the 24 Crl. Appeal No.2331/2018 Government as per Sec.114(C), the official acts of maintaining records cannot be doubted. Further the arguments made against PW.1 being the person who has acted in determental to the interest of the accused as PW.2 is interested to have the post of secretary by replacing the said Rajanna and the present Appellant is victimized in that object, are all imaginary they are not facts. Infact the PW.1 has no any power vested so has to plot and make the appellant as a victim since as admitted by PW.1 himself in his cross examination he was not at the helm of affairs when the appellant was given appointment.
22. Learned PP submits during the course of scrutinizing and giving appointment on the place of record everything seemed natural as such appointment order is issued. However when the verification has been commenced the discrepancies in the date of birth of the appellant and his previous work at BMTC has been concealed has come to light. Infact on making enquires by 25 Crl. Appeal No.2331/2018 the Hon'ble speaker as the head of secretariat the secretary of this assembly is only a functional office when the Honble speaker himself takes on the enquiry, as a constitutional head therefore the Hon'ble speaker has no authority to conduct the enquiry is not an acceptable prayer which can be considered against constitutional authority. Secondly the transfer certificate is forged is established before the Hon'ble Speaker, then after making the order of dismissal from service as it should not be a precedent the authority has been directed to lodge complaint. Accordingly the Vidhana Soudha Police have taken up the report from the secretariat and started investigation and come across even the certificate of service at universal software access is a concocted one.Infact there was no such universal software access in existence which came to the knowledge of the IO directly who has presented the charge sheet. The evidence of PW.3 Head master though in conclusive has produced document 26 Crl. Appeal No.2331/2018 which discloses when compared with the Ex.P.2 the fact of correction made by the accused as the document is only for the benefit of accused who has been charge sheeted. Therefore the evidence of PW.7 that there is no any company in existence as per the certificate brought by the accused goes against the accused. In this case the initial burden of proving the documents are being concocted and forged then the burden shifts on the accused. The accused has remained silent and even in the 313 statement accused preferred not give explanation, as argued know. Therefore the trial court has considered all the aspects and convict which is beyond all reasonable doubt. Accordingly seeks confirmation of judgment passed by the trial court.
23. This court on going through the material on record the learned counsel for the appellant submits the expert opinion alone has been relied by the trial court to convicted the accused as per the document placed on record the allegation made against the accused is one 27 Crl. Appeal No.2331/2018 forgery, second deceiving the government authority in obtaining the job. In the case on hand the under secretary has reported about the correction made in the transfer certificate dated 23/08/1962 as 23/11/1962. In that record Ex.P.2 which is in the custody of the authority has been sent to IO who in turn had obtained expert opinion. The expert has given opinion that the date of birth which is questioned No.1 namely 23/11/1962 is not a natural one found on Ex.P.2 and there is correction even in words as "Eleven". The opinion who has actual corrected the same is not placed on record is the contention of the learned counsel for accused. However the expert cannot opine who has actually committed the correction since the document is in custody of the government as argued by the learned PP the allegation made on behalf of appellant that the PW.1 is responsible for the concoction who has actual to implicate the present appellant to be out of job as one Rajanna was the secretary for whom the present appellant 28 Crl. Appeal No.2331/2018 was also having soft corner as such accused should be eliminated so as to benefit the PW.2 cannot be considered since as per Sec.114 (C) the Government authority who is in charge have done all these things, to be proved by the accused by placing cogent material by way of proof, oral or documentary evidence but these allegations made by the accused having transpired behind his back to knock of the accused from the Job. Infact the accused has not disputed Ex.P.3. The application filed by him at the time of notification issued for the post for driver. It is not a disputed document Ex.P.4 is the notification under which accused is also a candidate who has applied for the post. Ex.P.5 is the document which has been obtained by the government authority as the BMTC has passed order on 30/07/2002 dismissing the present appellant from service. It is pertinent to note in Ex.P.5 appellant is not recognized as driver but he is a conductor who had done misconduct which has been red handedly caught by the BMTC, traffic 29 Crl. Appeal No.2331/2018 controller, traffic squad. The same has been charge made available to the present appellant and he has been discharged from the service by vide order dated 30/07/2002 only. On observing Ex.P.3 within 1 month the appellant has obtained for the post of driver as per notification dated 18/12/2002. The recruitment rules has been further notified as on 18/12/2003 before that the service rules of 1978 was in force. Infact in the application which is undisputed document the appellant with regard column 10 has shown having experience of driving LMV of a period of 3 years. In the annexure as per column 14 of the application the appellant has attached experience certificate of about 3 years. The complaint which is marked as Ex.P.1 has specifically observed that the experience certificate has been given as universal software access, working from 19/07/2001 is a falsehood, prima facie since the appellant was working in BMTC as per Ex.P.5 which was known to the authority on coming across 30 Crl. Appeal No.2331/2018 order of dismissal from service. Further appellant has not made any declaration with regard to his work in the BMTC. Only on these 2 counts and also transfer certificate submitted being altered or corrected are the material facts for making the complaint. In the case on hand this court while considering the evidence on the material witnesses the transfer certificate being altered the PW.1 specifically deposed in examination in chief when they came across Ex.P.5 they have placed the same before the authority and order of dismissal is made. At that juncture, came across the date of birth has been altered only after getting the duty done by the appellant in BMTC has been come to light, enquiry has been started and he has been removed from service. In the cross examination of the PW2 the evidence of this witness is quite natural and he as secretary is competent authority to initiate any administrative action. Infact has deposed in his chief examination only through the secretary they have to place 31 Crl. Appeal No.2331/2018 the material before speaker can be inferred from the conduct of official work by the secretariat of legislative assembly. Therefore the evidence of PW.1 there are no any discrepancies being found with regard the inciation of criminal case. The Ex.D.1 got marked as is of no consequence since the speaker has taken appropriate action as per material placed on record. The personal vendetta alleged by the appellant against PW.2 cannot be inferred only based on the cross examination, since T.Rajanna removed from service the PW.2 is material for the same can be considered only if the circumstances under which T Rajanna has been removed from service, the malicious conduct of PW.2 is to be brought in evidence by the appellant herein so has to considered his prayer of drawing inference that the act of PW.1 and 2 is malicious and opposed to the procedure established under law with regard to conduct of the enquiry. In the case on hand the evidence of PW.3 as the witness has not been subjected to 32 Crl. Appeal No.2331/2018 cross examination the consideration of Ex.P.9 and 10 produced by the prosecution for its bringing home the guilt of accused cannot be considered as argued by learned counsel for the appellant is correct. Further the citation relied by the learned counsel for the appellant makes it clear that court have to observe material on record rather be carried away by the expert opinion alone before coming to any conclusion with regard to any document whether it is forged. As per provisions of Sec.415 and 420 of IPC Sec.415 is the section which oblizeses to consider a court what are the ingredients of cheating and at th first instance there should be deceiving by any person, they deceiving is to be either fraudulently done or dishonestly done inducing the person so deceived to deliver any property or to convey that any person shall retain any property or intentionally induces. The person so deceived to do or omit certain thing. However this Sec.415 itself is not the penal section and penal section is 417 onwards. 33 Crl. Appeal No.2331/2018 Further in Sec.418, 419 and 420 the different class and how the act of either dishonest inducement of forgery being done has been considered so as bring home the guilt of allegations made under Sec.419 it is persontion means and in Sec.418 when offender is having knowledge about his wrong doing which will ensue loss to the other person. In the case on hand the trial court has framed charge sheet for the offences punishable under Section.415, 420, and 468 and 471. However Sec.415 cannot be considered as distinctive offence, the offence P/U/s 420 is offence which is the penal provision of the Section for the punishable under Sec.415.
24. In the case on hand in the evidence of PW.5 however he is the Scientific Officer who has given opinion with regard to the questioned document in this case the questioned document is only Ex.P.2 and the questions 1 and 2 which are raised for one that the documents is corrected in Ex.P.2. The No.11 and 2 nd one is question 8 34 Crl. Appeal No.2331/2018 has been corrected as 11 in words only with regard to these two aspects expert opinion has been obtained further IO has also sought for authorship of the word eleven and the figure 11 which has not been given opinion by the expert. Ex.p.14 and 15 are the observations made by the expert and he has submitted his report on observing Ex.P.14, 15, 16 and 17. The trial court has based its reasoning while passing the judgment on the expert evidence. The trial court has considered the expert evidence at Page 17 onwards of its judgment and specifically placed reliance, in Page 19 para 23 the witness has denied the suggestions of the accused and as such inference can be drawn on going through the document Ex.P.2 that the erasing of '8' Eight and in its space '11' Eleven, has been substituted is only done by the accused is the inference drawn by the trial court in page 20 para 23 and 24 of its judgment.
25. The learned counsel has relied on the citations 35 Crl. Appeal No.2331/2018 mentioned supra these citations are with regard considering the expert opinion. The expert opinion is not a conclusive proof is the arguments of learned counsel for the appellant it has been brought to the court notice that the opinion with regard to opinion of court who has altered these as per the reference made to the expert has been answered in negative. In that regard the specimen signature of appellant has been collected by the IO even then it was not able to be pointed towards accused that he is the author of that particular questioned 1 and 2 portion in the Ex.p.2 therefore this aspect is to be considered and the trial court missed the same and inference drawn by the trial court relying on these document namely questioned 1 and 2 portion and convicting the accused is not proper this benefit of doubt is to be given to the accused is the prayer. Therefore the contentions raised by learned counsel for the appellant that Ex.P.2 is forged by the appellant cannot be inferred based on the expert opinion alone, seems as 36 Crl. Appeal No.2331/2018 reasonable one.
26. This court on going through the Ex.P.3 and Ex.P.21 the Service Register of the appellant mentioned by the BMTC corporation his date of birth is mentioned as 23/08/1962 when this compared with the application of the appellant the date of birth is modified from 23/08/1962 to 23/11/1962 prima facie discloses the accused has a dishonest intention to induce the government authority as per the notification to give him job. Undisputedly the appellant is removed from service as per order of the BMTC authority under Ex.P.5. Ex.P.21 disclose appellant is appointed as conductor but not as driver having worked as driver at this juncture if we consider Ex.P.6 which is also undisputed document the Service Certificate issued by the universal software access even, if considered as geninue makes it clear it goes against Ex.P.21 since from Ex.P.5 the date of removal from service, 10/12/2001 prior to that appellant has been red 37 Crl. Appeal No.2331/2018 handedly caught by BMTC Traffic Controller, Raid Squad there is no malicious. Therefore since the 19/07/2001 appellant is working in universal software access as a driver is a concocted document on the face of it only. Even the appellant is discharged from his duty, therefore Ex.P.6 which is a concocted as disclosed from Ex.P.5 being working as conductor in BMTC up to 2001. Under these circumstances the filling up Ex.P.3 by the appellant as he was working in Universal Software Access as driver for 3 years is blatantly falsehood. The trial court in its judgment at page 24 has considered Ex.P.3 along with Ex.P.21 in para 27 to 30 in page 21 to 25. The ingredients of offence alleged that the accused dishonestly induced the authority to give him job is definitely falls within the ingredients of offence punishable Under Section.420. In the case on hand the prosecution has placed material document to prove the guilt of accused. In the case on hand the PW.1 evidence which has stood test of cross examination has specifically 38 Crl. Appeal No.2331/2018 gives veracity of conduct of the appellant in getting the job. The admission of the PW.1 does not creates any doubt in the mind of court so has to come to the conclusion that there is no any fraud played by appellant.
27. The trail court has considered aspect of Section 468 punishable under Sec.468 of IPC the forgery is in chief-Examination in the case on hand Ex.P.2 is submitted by the appellant before the appointment is undisputed. Ex.P.3 selection process to which Ex.P.2 is annexed the date of birth mentioned by the accused is one and the same. During course of verification the complainant authority have summoned Ex.p.21 along with the Ex.P.5 has also been received. The arguments of learned PP that appellant to concealed that he is the same person who has applied for, after dismissing from BMTC in Ex.P.5 has changed TC from date of birth 23/08/1962 to 23/11/1962 is established. Even if we take way the expert opinion question 1 and 2 of Ex.P.2 and other documents placed by 39 Crl. Appeal No.2331/2018 the prosecution namely Ex.P3 and Ex.P.2 squarely contradict the Ex.P.21. The PW.1 specifically deposed in evidence about getting information from the BMTC is the basis for the starting of enquiry by the Hon'ble speaker and only after enquiry placed, that there is only that there is only for getting the job, during this course of appellant was dismissed from job. The issuance of job itself cannot draw a presumption that there should be no in depth verification after scrutiny. Therefore ingredients of offence punishable Under Sec.468 of IPC has been established, by the trial court is beyond reasonable doubt the trial court has discussed elaborately in its judgment to come to the conclusion about forgery being made by the accused. With regard to the ingredients of offence punishable under Section 471 of IPC using a forged document as a genuine is established by the prosecution even considering Ex.P.2 along with Ex.P.3 the other material document placed by the prosecution namely Ex.P.21 makes it clear that other 40 Crl. Appeal No.2331/2018 than the appellant no other person will be benefited by committing offence of forgery. Under these circumstances all the ingredients of punishable under Section 420, 468, 471 of IPC are established.
28. In the case on hand on going through the entire materials the appellant counsel has specifically argued accused cannot be sentenced for offence punishable under Sec.415 distinctively since it is not a penal provision it is only definite provision. Therefore the offence punishable under Section. 415 of IPC itself has not provided for punishment seems reasonable. Accordingly, this court is satisfied to answer the point for consideration in partly affirmative.
29. In the case on hand the imposition of sentence on Sec.415 of IPC by the trial court is opposed to law.
30. Infact the trial court has not charged accused for offence punishable under Section.417 of IPC which is the penal section for cheating. Accordingly the conviction 41 Crl. Appeal No.2331/2018 order passed with regard offence punishable under Section 415 of IPC passed by the trial court is hereby set aside. The sentence of imprisonment for a period of 1 year along with sentence of fine imposed by the trial court is set aside.
32. On basis of the materials on record the prosecution is able to place substantial, cogent and corroborative material to bring home the guilt of the accused for offences punishable under Sec.420, 468, 471of IPC. The order of punishment on sentence passed to that effect are hereby confirmed.
31. This court is satisfied to modify the sentence by the trial court with regard to offence punishable under Section 415 of IPC accordingly point No.2 is answered in partly affirmative.
32. POINT NO.3:- In the light of my finding on point No.1 and 2, this court proceeds to pass the following;
42 Crl. Appeal No.2331/2018
O RDE R Appeal filed by the appellant/accused is hereby dismissed with modification of sentence.
The order of conviction passed by trial court for the offence punishable under Section 420, 468, 471 of IPC are hereby confirmed.
Accused shall under go order of sentence of imprisonment imposed by trial court is hereby confirmed.
Accused shall make himself available before trail court for serving the sentence of imprisonment for offences Punishable under Section 420, 468, 471 of IPC.
Accused order of sentence with regard to punishable under Section 415, imposing simple imprisonment for one year and payment fine of Rs.5000/- is hereby set aside.
Office is to return the amount of Rs.5000/- deposited by the accused as provided under law.
Send back TCR along with copy of this judgment to trial court to take further action in the matter.
(Dictated to the Stenographer in open court, script corrected, signed and pronounced by me in open court 43 Crl. Appeal No.2331/2018 on this the 23 rd day of January, 2023) (Rajesh Karnam K.) LXIX Addl.C.C. & Sessions Judge, Bengaluru.