Kerala High Court
P.M.Babu vs State Of Kerala on 7 April, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 20TH DAY OF JULY 2018 / 29TH ASHADHA, 1940
Crl.Rev.Pet.No. 3475 of 2005
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JUDGMENT IN CRA 426/2001 of ADDL.SESSIONS COURT (ADHOC)-I, KOTTAYAM
DATED 07-04-2005
JUDGMENT IN CC 239/1995 of J.M.F.C., ETTUMANOOR DATED 22-08-2001
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REVISION PETITIONER(S)/APPELLANT/ACCUSED :-
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P.M.BABU, S/O.MATHEW,
PALATHUR VEEDU, MALLUSSERI KARA,
PERUMBAIKADU VILLAGE.
BY ADV.SRI.SUNIL CYRIAC
RESPONDENT(S)/RESPONDENT/COMPLAINANT :-
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.C.K.PRASAD
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
20-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.UBAID, J.
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Crl.R.P. No.3475 of 2005
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Dated this the 20th day of July 2018
ORDER
The revision petitioner herein is the 1 st accused in C.C. No.239/1995 of the Judicial First Class Magistrate Court, Ettumanoor. The 4th accused in this case died pending the trial, and the charge against him abated. The accused Nos.1 to 3 faced prosecution in the court below on the allegation that for the purpose of availing a loan of `35,000/- from the Kumaranalloor Service Co-operative Bank, the accused Nos.1 to 3 forged the salary certificate of the accused Nos.2 and 3, and the 1st accused produced it at the Bank. On verification, the forgery committed by them was detected. Though the loan was sanctioned, the amount was not disbursed. The police registered the crime on the complaint made by the Secretary of the Co- operative Bank, and after investigation, submitted final report in court against the four accused under Sections 420, 464, 465, 468 and 472 read with Section 34 IPC. The allegation as against the 4th accused is that the false seal of the employer of the accused Nos.2 and 3 was procured by him to help the other accused. The Crl.R.P. No.3475 of 2005 -: 2 :- accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against them.
2. The prosecution examined ten witnesses and proved Exts.P1 to P24 documents in the trial court. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused Nos.1 to 3 guilty under Sections 465, 468 and also 420 read with Section 511 IPC. On conviction, they were sentenced to undergo simple imprisonment for three months each, and to pay a fine of `500/- each under Section 468 IPC, and to undergo another period of simple imprisonment for three months each, and to pay a fine of `500/- each under Section 420 read with Section 511 IPC. No separate sentence was imposed under Section 465 IPC. The accused were found not guilty under Sections 472 and 420 IPC.
3. Aggrieved by the judgment of conviction dated 22.8.2001, the three accused approached the Court of Session, Kottayam. The 1st accused filed Crl.A. No.426/2001, and the accused Nos.2 and 3 filed Crl.A. No.430/2001. In appeal, the learned Additional Sessions Judge (Adhoc)-I, Kottayam confirmed the conviction and sentence under Section 420 read with Section 511 IPC, but set aside the conviction and sentence under Sections Crl.R.P. No.3475 of 2005 -: 3 :- 464, 465 and 468 IPC. Now, the 1st accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.
4. PW5 is the then Health Officer of the Kottayam Municipality. The prosecution case is that the accused Nos.1 to 3 created forged salary certificates of the accused Nos. 2 and 3, containing the seal and signature of PW5. Exts.P6 and P7 are the salary certificates created by the accused Nos.1 to 3. Ext.P6 contains the signature of the 3 rd accused, and Ext.P7 contains the signature of the 2nd accused. These signatures were identified by the materials witnesses examined in court. PW5, the Health Officer affirmed in evidence that the seal and signature in these two salary certificates are not his. He examined the seal and signature during trial, and affirmed in evidence that none of the certificates contains his seal or signature. He also proved that the accused Nos.2 and 3 were the employees working under him, and he stated that he had not issued any salary certificate to the accused Nos.2 and 3. It stands proved by the evidence of PW5 that the Exts.P6 and P7 salary certificates were in fact forged by the accused Nos.1 to 3, and these certificates were produced in the Bank by the 1st accused for availing loan. That the forged Crl.R.P. No.3475 of 2005 -: 4 :- certificates were produced for availing loan is well proved by the evidence of PW1 to PW3. They are the then Secretary and the President of the Co-operative Bank. But unfortunately, the conviction under Section 468 IPC was set aside by the appellate court.
5. Evidence proves that the accused had only made an application for loan, and it was also sanctioned by the Bank. Before disbursing the amount, the forgery was detected and so, the loan was cancelled. This means that the accused had only submitted the forged document for availing loan, and this act alone cannot be said to be an act of attempt to commit the offence of cheating. For an offence of attempt to cheat, something more is required. What is proved by evidence is that the accused Nos.1 to 3 had committed forgery of two salary certificates in the name of the accused Nos.2 and 3 for the purpose of cheating the Service Co-operative Bank.
6. Section 464 IPC does not contain any substantive offence. It is only a provision explaining what is meant by making a false document. The penal provisions are Sections 465 and 468 IPC. What is punishable under Section 465 IPC is simple forgery, and the offence punishable under Section 468 IPC is Crl.R.P. No.3475 of 2005 -: 5 :- forgery for the purpose of cheating. When the offence under Section 468 IPC is proved, there cannot be a separate conviction or sentence under Section 465 IPC because, the fact of forgery is covered by Section 468 IPC. That is why the trial court did not impose any separate sentence under Section 465 IPC. At the best, what is proved in this case is the offence punishable under Section 468 IPC, that the three accused had forged two salary certificates in the name of the accused Nos.2 and 3, and they had also produced the certificates in the Bank for the purpose of cheating the Bank. Before they could do anything, or before they could get any amount, the forgery was detected, and the loan was cancelled. In such a situation, there cannot be a conviction under Section 420 read with Section 511 IPC. Instead of sustaining the conviction under Section 468 IPC, the learned appellate Judge wrongly set aside the said conviction, and sustained the conviction under Section 420 read with Section 511 IPC. I find that the revision petitioner is entitled for acquittal as regards the offence under Section 420 read with Section 511 IPC.
In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Section 420 read with Section 511 IPC, and accordingly, he is acquitted of Crl.R.P. No.3475 of 2005 -: 6 :- the said offence in revision. The conviction and sentence against the revision petitioner in C.C. No. 239/1995 of the trial court, confirmed in appeal by the Court of Session, Kottayam, in Crl.A.No. 426/2001, will stand set aside.
Sd/-
P.UBAID JUDGE //TRUE COPY// P.A. TO JUDGE Jvt/25.7.2018