Bangalore District Court
State By Cubbonpark P.S vs Is Acquitted on 26 November, 2020
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Dated this the 26th Day of November 2020
Present: Sri.Vignesh Kumar, LL.M.
VIII ADDL.C.M.M., BENGALURU.
C.C. NO.4637/2013
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 4637/2013
2. The date of commission 16072012
of the offence
3. Name of the complainant State by Cubbonpark P.S.
4. Name of the accused Mohammad Ateeque Tengakar
s/o Abdul Wahab Tengakar
r/at No.B5, Block Income Tax
Colony, Infantry Road,
Bangalore.
5. The offence complained of U/s. 465, 468, 471, 177, 198
or proved and 420 of IPC
6. Plea of the accused and Pleaded not guilty
his examination
7. Final Order Acting U/sec.248(1) Cr.P.C.
accused is acquitted
8. Date of such order 26112020
For the following:
2 C.C.No.4637/2013
JUDGMENT
This is a charge sheet submitted by Police Sub Inspector of Cubbonpark PS against the accused for an offence Punishable U/s. 465, 468, 471, 177, 198 and 420 of IPC.
2. The case of the prosecution in brief is as under:
The accused herein had applied for issuance of Indian Passport from the concerned authority. On 16072012 the said application filed by the accused came for verification before the Cubbonpark Police Station which was received by the first informant CW1 Govindaraju M., who immediately forwarded it to the beat police CW6 Shivaraj. The said CW6 went to the address of the accused and requested him to provide documents pertaining to his residence, date of birth and two photographs. On the same day at 5.30 p.m., accused came to the police station and produced passbook issued by 3 C.C.No.4637/2013 Canara Bank and quarters allotment in favour of his wife Shabana Ateeque by the income tax department for the purpose of showing his residential address. Further he had produced his transfer certificate bearing No.20/8384 issued by the Government Urdu Primary Boys School of Ramanagara. In order to verify the authenticity of the transfer certificate as it was found to be forged, CW1 immediately sought report from the school authority. On 18072012 the said school authority have informed CW1 that the accused had never studied in their school and the particulars mentioned in the transfer certificate pertain to some other student. On the basis of the said report CW1 lodged first information alleging that the accused had produced forged transfer certificate for the purpose of obtaining Indian Passport and he has used the said forged passport as genuine before the police authority. On the basis of the information furnished by CW1, FIR was lodged against the accused. The concerned police attached to 4 C.C.No.4637/2013 Cubbonpark Police Station, during the course of investigation have recorded the statement of the witnesses and obtained documents from the school authority. After the arrest of accused confession was recorded wherein he has stated that to obtain Passport he had contacted one agent, who directed him to provide copy of the ration card, election ID card and documents to show his address and date of birth. On 2306 2012 he had access to unfilled transfer certificate which he got it filled by one person near the passport office and thereby he had confessed the guilt of committing the offence of forgery and cheating. After the arrest of the accused he is produced before the Court. This Court has granted bail to the accused. After conclusion of investigation charge sheet is filed against the accused for the aforesaid offences.
3. After filing of charge sheet accused was secured. Charge was read over to the accused for the offence punishable U/s. 5 C.C.No.4637/2013 465, 468, 471, 177, 198 and 420 of IPC. The accused has pleaded not guilty and claimed to be tried.
4. In order to substantiate the allegation, prosecution has examined 7 witnesses as PW1 to PW7 and documents have been marked as Ex.P1 to P7. Accused has been questioned u/sec. 313 of Cr.PC. Accused has not chosen to adduce any defence on his behalf.
5. Heard the arguments.
6. The point that would arise for my determination in this case are as under:
1. Whether prosecution proves beyond reasonable doubts that on 16/07/2012 at about 5.30 p.m. at CW.1's office situated at Kasturaba Road, within jurisdiction of Cubbon Park P.S., accused produced a false Transfer Certificate and furnished false information to CW.1, who is a public servant and thereby he has committed 6 C.C.No.4637/2013 the offence punishable U/sec. 198 and 177 of IPC?
2. Whether prosecution proves beyond reasonable doubts that accused hatched a plan to forge Transfer Certificate in order to obtain Indian Passport and thereby committed the offence punishable U/sec. 465 of IPC?
3. Whether prosecution proves beyond reasonable doubts that accused forged the above said Transfer Certificate for the purpose of cheating and thereby committed the offence punishable U/sec.468 of IPC?
4. Whether prosecution proves beyond reasonable doubts that accused with an intention to commit an offence forged the Transfer Certificate and used the same as genuine knowingly well that the document is forged document and thereby committed the offence punishable U/sec.471 of IPC?7 C.C.No.4637/2013
5. Whether prosecution proves beyond reasonable doubts that accused with dishonest intention submitted forged Transfer Certificate to CW.1's office in order to obtain Passport thereby cheated CW.1's office and thereby committed the offence punishable U/sec. 420 of IPC?
6. What Order?
7. My findings on the above points are as under:
Point No.1 to 5 : In the Negative
Point No.6 : As per final order,
for the following:
REASONS
8. Point No.1 to 5: Since all these points are inter linked to each other, taken together for common discussion.
9. In order to prove its case the prosecution altogether got examined 7 witnesses. The first informant is examined as PW3. The Head Mistress and the Teacher of the Government Urdu Priary School of Ramanagara are examined as PW's1 and 8 C.C.No.4637/2013 2 respectively. The police officials who had apprehended the accused and produced before the Investigating Officer is examined as PW4. Another police official who had assisted PW3 in obtaining necessary documents from the school authority is examined as PW5. The Investigating Officer who had registered the FIR and carried out major portion of the investigation is examined as PW6. Another Investigating Officer who filed charge sheet is examined as PW7. The offences alleged against the accused is u/s 465, 468, 471, 420, 177, 198 of IPC.
10. It is the case of the prosecution that the accused had filed an application seeking issuance of Indian Passport before the Passport Authority. When the said application was sent for verification purpose to the police, the accused had produced a forged transfer certificate. Hence, it is alleged that the accused has committed the offence of forgery, cheating etc. My 9 C.C.No.4637/2013 predecessor in office had taken cognizance for the aforementioned offences.
11. It is the case of the prosecution that on 16072012 PW3 first informant received an email from the Passport authority wherein the downloaded attachment contained address and photo of the accused. For the purpose of verification of the said application PW3 had directed PW5/CW6 H.M.Shivaraj to visit the address of the accused. On the same day at 5.30 p.m., accused appeared before PW3 in the police station and in support of his address proof he produced certificate showing quarters allotment in favour of his wife Shabana by the Income Tax Department. Regarding the said document there is no dispute by the prosecution. Further accused had produced his transfer certificate to show his date of birth. The said transfer certificate is marked as Ex.P2 before this Court. It is the contention of the prosecution i.e., Ex.P2 is forged document. 10 C.C.No.4637/2013
During the course of evidence, PW.1 Headmistress and PW.2 Teacher of the Government Urdu Primary School of Ramanagara have deposed that the accused is not the student of their school and thus they have supported the prosecution case. It is deposed by PW.1 that as per Ex.P.1 admission extract the accused had not studied in their school. Further, PW.2 has deposed that Ex.P.2 Transfer Certificate is not issued by their school and she has acknowledged Ex.P.3 report signed by her. Thus primarily it is the case of
12. In order to attract Section 465, 468 and 471 of IPC the prosecution is very much required to prove that Ex.P2 transfer certificate is a forged document and it is forged by the accused herein. Section 463 of IPC which defines the offence of forgery begins with a phrase "whoever makes any false document". It is proper to reproduce the said provision for better understanding, which reads as follows:
11 C.C.No.4637/2013
"Section 463: Forgery Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
13. Further Section 464 of IPC defines the phrase "making false document" and the accused is liable only if he had acted dishonestly or fraudulently to create a false document. In this connection it is necessary to refer to a decision of Hon'ble Supreme Court in the case of Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929 at page 756 it is held as follows:
"14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, 12 C.C.No.4637/2013 by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses."
14. Thus, inorder to bring home the guilt on to the accused the prosecution in this case is required to prove that the accused himself with dishonest and fraudulent intention had forged Ex.P.2 Transfer Certificate. Further, Hon'ble High Court of Karnataka in the case of T.K. Sriramappa v. The State of 13 C.C.No.4637/2013 Karnataka 2006(2) KCCR 804 wherein by interpreting Section 468 of IPC has held that the prosecution has to prove beyond reasonable doubt that the accused himself had committed the act of forgery. The relevant para is reproduced below:
"Para9: When the accused is charge sheeted for the offence under Section 468 IPC, the prosecution has to establish (i) that the accused committed forgery and (ii) that he did so with an intention that the document forged shall be used for the purpose of cheating. The object of Section 468 IPC was to find out as to whether the accused deceived someone by making false documents. If the prosecution were to establish forging of the documents and intending to use such forged documents for the purpose of cheating, then only the accused is liable for being convicted. It is with this background, the evidence on record has to be appreciated."
15. Learned Sr. APP referring to the Passport application Ex.P.7 and alleged forged Transfer Certificate Ex.P.2, wherein date of birth of accused is shown as 28101972 in both documents vehemently argued that Ex.P2 was forged only to make a false claim before the Passport authority and with a 14 C.C.No.4637/2013 dishonest intention. On the other hand, learned counsel for accused vehemently argued that Passport authority is neither cited as a witness nor examined in this case. Moreover, the police have not collected any document from the Passport authority with regard to the date of birth of accused. Upon careful appreciation of evidence on record, it is difficult to believe that Ex.P.2 is a forged or false document for the following reasons, (1) No complaint or grievance from Passport Authority; (2) Seizure and Possession of Ex.P.2 is shredded under suspicion; (3) In the absence of Forensic Evidence, PW's 1 and 2 are not competent to speak with regard to the authenticity or otherwise of Ex.P.2. Let me analyse these aspects one by one.
No complaint or grievance from Passport Authority:
16. It must be noted here that scope of the verification enquiry by the police with regard to the passport application is 15 C.C.No.4637/2013 very much limited in nature. In fact, the police are only expected to verify the criminal antecedent and the address of the accused including his citizenship details during the verification process. Perhaps, the police officials have got no authority or mandate under the Passport Act and Rules to verify the date of birth as furnished by the applicant before the Passport authority. Therefore, the act of PW3 in trying to verify the date of birth of the accused on the basis of Ex.P2 document is uncalled for. It is the look out of the Passport Authority to accept or reject the date of birth documents of the accused. Admittedly, so far there is no complaint or grievance of Passport Authority with regard to the authenticity of Ex.P.2 document. No official from Passport Authority is neither examined by the police nor secured as a witness before this Court.16 C.C.No.4637/2013
Seizure and Possession of Ex.P.2 is not proved satisfactorily:
17. According to the case of the prosecution Ex.P2 alleged forged transfer certificate was handed over by the accused himself on 16072012 at 5.30 p.m., in the police station to PW3. During the chief examination of PW3 he has clearly narrated the said fact before this Court. Admittedly, Ex.P2 is not seized by the police under mahazar. Since, there was no criminal case registered then, it was not obligatory on the part of the prosecution to draw mahazar before obtaining possession of Ex.P2 document. In the chief examination PW3 has stated that CW6/PW5 only visited the house of accused and had requested him to produce the document to prove his address and date of birth. Accordingly, at 5.30 p.m., accused appeared and produced Ex.P2 and other documents before the police. However, there is discrepancy and inconsistency in the evidence of PW5 wherein he has stated that on his visit to the 17 C.C.No.4637/2013 house of the accused he himself had collected the documents pertaining to the address and date of birth from the possession of the accused. The said discrepancy in the evidence of PW5 would create further doubt with regard to the actual seizure of Ex.P2 by the concerned police. There was no written communication between the police and the accused prior to obtaining Ex.P2 to their custody. In such circumstances, the actual seizure of Ex.P2 by the police from the possession of accused appears to be doubtful.
No Expert Evidence under Section 45 of Evidence Act:
18. Learned Counsel for accused further vehemently argued that Ex.P2 document is not sent for Forensic examination.
Whenever the prosecution is contending a particular document to be forged, the best evidence to prove it would be the expert evidence under Section 45 of Evidence Act. Upon perusal of 18 C.C.No.4637/2013 the Ex.P2 it is affixed with the seal of the Government Urdu Primary Boys School of Ramanagara. PW1 and 2 are the Head Mistress and Teacher of the Government Urdu Boys School of Ramanagara. They have not spoken specifically with regard to the seal and signature found in Ex.P.2. In the absence of an expert evidence, the prosecution has failed to prove that Ex.P.2 is a forged instrument.
Testimony of PW's 1 and 2 does not inspire confidence:
19. According to PW1 she had issued Ex.P1 which would reflect the name and particulars of the student by name:
Mohamed Peer at admission No.29/197778; and thus name of accused is not forthcoming as the student at the said admission number. During the chief examination of PW1 she has only stated that Ex.P1 is issued by her at the request of Cubbonpark police. Nothing is elicited as to the genuineness of Ex.P2 transfer certificate from her mouth. NO doubt she is not 19 C.C.No.4637/2013 an expert, but PW1 could have been the best witness to state as to the seal and signature found in Ex.P2, if it is containing her signature and seal or not.
20. During the chief examination of PW2 Teacher at Government Urdu Boys Middle School she has spoken that Ex.P2 is not issued by their school authority. She is the signatory to Ex.P3 letter issued to the Investigating Officer wherein it is specifically mentioned that Ex.P2 seal and signature is not pertaining to their school and it is a false document. It is further stated in Ex.P3 that Government Urdu Lower Primary School, Kumundan Mohalla, Ramanagara has amalgamated with their school. No documents are produced to show with regard to the said amalgamation of two schools. In Ex.P1 extract seal of the said Government Urdu Lower Primary School is not affixed. If the said seal was to be affixed to any of the document, this Court acting under Section 73 of Evidence 20 C.C.No.4637/2013 Act, would have itself compared the seals therein. Moreover Ex.P1 is issued in a white sheet under handwriting of PW.1.
During the course of examination of PW1, she has admitted that in Ex.P1 document, page number of the original register is not mentioned by her. The original admission register is not produced before this Court. Hence, primary document is suppressed by the prosecution. This again gives rise to suspicion as to the relevancy of Ex.P1 and P3 documents issued by the school authority.
21. Upon perusal of Ex.P1 admission extract issued by PW1, it is containing a seal of Head Mistress, Government Urdu Boys Middle School, Ramanagara. Evidently, the said seal does not match with the seal in Ex.P2 alleged forged document. Moreover, there is a discrepancy between the name of the schools found in Ex.P1 and P2. In Ex.P1 the name of the school is Government Urbu Boys Middle School. Where as in 21 C.C.No.4637/2013 Ex.P2 name of the school is Government Urdu Primary Boys School, Kumundan Mohalla, Ramanagara. The Investigating Officer should have had offered an explanation to the said discrepancy. If not, atleast from the mouth of PW1 an explanation as to he said discrepancy should have been brought out. It is possible that there is one more Government Urdu Primary Boys School and it was for the prosecution to nullify the said fact. Admittedly, PW1 and PW2 are not related to the Government Urdu Primary Boys School, Kumundam Mohalla, Ramnagara. As already observed there is no document to show that the said school has amalgamated with the school represented by PW.1 and 2. Therefore the said PW.1 and 2 are not the best witnesses to speak with regard to the authenticity of Ex.P.2 document.
22. Further, there is ambiguity in the documentary evidence Ex.P1 and Ex.P3 as well as the oral evidence of PW1 and 2. 22 C.C.No.4637/2013 During the cross examination of PW2 she has stated that Ex.P3 is written by the Kannada Teacher by name Prabhavati. The said Kannada Teacher is not cited as a witness in this case. PW2 has only signed Ex.P3 document. Interestingly, PW.1 who is the Headmistress of the school does not prefer to issue Ex.P.3, and gets it issued by PW.2 teacher who only signs it. In such circumstances, the possibility of the suppression of the school record pertaining to Government Urdu Primary Boys School, Kumundam Mohalla, Ramnagara cannot be ruled out.
23. As already observed in order to constitute the offence of forgery it is necessary the prosecution must prove that the accused himself has forged the instrument. In the present case there is no complete evidence to show that the accused has himself forged Ex.P2 Transfer Certificate. Moreover, on the basis of Ex.P1 and P3 documents issued by the school 23 C.C.No.4637/2013 authority it is difficult to come to conclusion that Ex.P2 is a false document. Therefore, the prosecution has failed to prove the ingredients of Section 465, 468, 471 of IPC.
24. According to the prosecution the accused had forged Ex.P2 document so as to cheat the police authority during the verification process. It is not the case of the prosecution that the accused had tried to cheat Passport authority for which no official from the said passport authority is neither cited as a witness nor examined by the prosecution. In order to constitute an offence under Section 198 of IPC the accused is required to corruptly use Ex.P2 document known to be false as genuine. As already observed there is no materials placed to show that Ex.P.2 is false document and as such question of accused making use of it as genuine does not arise at all. Moreover, it was not the duty of the police authority to verify the date of birth of accused. If there was no duty attached to 24 C.C.No.4637/2013 he police, then the accused could not have been asked to produce Ex.P.2 certificate for verification. Thus, the offence under Section 198 of IPC is not made out satisfactorily.
25. Further, in order to constitute the offence under Section 420 of IPC the accused is required to cheat and thereby dishonestly induce the person to deliver any property to him. Admittedly, due to the present case effort of accused to obtain Passport from the authority is withheld. On the basis of Ex.P.2 the accused is not successful in getting delivery of Passport by the authority. Therefore, the accused cannot be said to have committed the offence under Section 420 of IPC.
26. Learned counsel for the accused would argue that Section 177 of IPC cannot be attracted against the accused as there is a clear cut bar u/s 195 of CrPC. It would be proper to refer to SubSection 1(a) of Section 195 of CrPC for better understanding which reads as follows:
25 C.C.No.4637/2013
"Sec.195: Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(2) xxxx (3) xxxx (4) xxxx (Emphasis supplied)"
27. Section 177 clearly comes within the purview of Section 195(1)(a) of CrPC and as such only on the complaint in writing by the public servant this Court could have had taken cognizance of the said offence. Admittedly, in the present case there is no such private complaint as defined u/s 2(d) of CrPC is filed by anyone. Upon the police report this Court cannot take cognizance for the offence punishable u/s 177 of IPC. No 26 C.C.No.4637/2013 doubt, by oversight cognizance for the offence p/u/s 177 of IPC is alrready taken, but considering the bar applicable u/s 195(1)(a) of CrPC the penal provision Section 177 of IPC cannot be made applicable to the accused herein.
28. For the aforesaid discussion the prosecution has utterly failed to prove the ingredients of offences U/s. 465, 468, 471, 177, 198 and 420 of IPC beyond reasonable doubt. Accordingly, point No.1 to 5 are answered in the Negative.
29. Point No.6: In the present case this Court has examined the validity of Ex.P.2 Transfer Certificate only for the purpose of ascertaining if accused has committed the offences or not. Any observation of this Court which is expressed on the yardstick of preponderance of probability shall not be construed to hold that Ex.P.2 is a genuine document in favour of the accused. The accused herein is at liberty to prove his actual date of birth independently before the Passport 27 C.C.No.4637/2013 Authority to obtain Indian Passport. In the event of accused applying for the Passport, the concerned authority without being influenced by any of the observations made by this Court, is at liberty to examine the authenticity of the documents produced before it for issuance of Passport. For the findings given to above points, this Court deems fit to pass the following:
ORDER Acting under Section 248 (1) of Cr.P.C., accused is hereby acquitted of the offences punishable U/s. 465, 468, 471, 177, 198 and 420 of IPC.
Bail bonds of accused and his surety bond stands cancelled upon the expiry of appeal period. (Dictated to the stenographer, transcribed and typed by her, verified and corrected by me, then the judgment pronounced by me in the open court, on this 26th day of November 2020.) (Vignesh Kumar) VIII Addl. CMM, Bangalore.
28 C.C.No.4637/2013ANNEXURE
1. Witnesses examined for the prosecution :
PW1 : Balkin Jaha Rasheebi PW2 : Mubeena Jabin PW3 : Govindaraju PW4 : Tippanayak PW5 : H.M.Shivaraj PW6 : Gireesh A.K. PW7 : Bharath
2. Documents marked on behalf of the prosecution:
Ex.P1 : Admission Extract
Ex.P1(a) : Signature of PW1
Ex.P2 : Impugned Transfer Certificate
Ex.P3 : Letter issued by PW2
Ex.P3(a) : Signature of witness
Ex.P4 : First information
Ex.P4(a) : Signature of PW1
Ex.P5 : Report
Ex.P6 : FIR
Ex.P6(a) : Signature of witness
Ex.P7 : Passport Application [Email attachment]
3. Witnesses examined for the defence:
NIL
4. Documents marked on behalf of the defence:
NIL VIII Addl. C. M. M. Bangalore 29 C.C.No.4637/2013 Judgment pronounced in the open court (vide separate order) ORDER Acting under Section 248 (1) of Cr.P.C., accused is hereby acquitted of the offences punishable U/s. 465, 468, 471, 177, 198 and 420 of IPC.
Bail bonds of accused and his surety bond stands cancelled upon the expiry of appeal period.
VIII Addl. C. M. M. Bangalore