Kerala High Court
Sirajudheen Kudattu vs * State Of Kerala on 16 October, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942
Crl.Rev.Pet.No.4381 OF 2006
AGAINST THE JUDGMENT IN CRL.APPEAL NO. 4/2005 DATED 04-11-2006 OF
SESSIONS COURT, LAKSHADWEEP
AGAINST THE JUDGMENT IN CC NO.1/2001 DATED 29-03-2005 OF JUDICIAL
MAGISTRTE OF 1ST CLASS,ANDROTH
REVISION PETITIONER/APPELLANT/ACCUSED:
SIRAJUDHEEN KUDATTU
S/O POOKOYA KANDHETH,
ANDROTT, U.T. OF LAKSHADWEEP.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
RESPONDENT/COMPLAINANT/STATE:
* STATE OF KERALA,
REPRESENTED BY PUBLIC CONSECUTOR,
HIGH COURT OF KERALA (*DELETED)
UNION TERRITORY OF LAKSHADWEEP,
REPRESENTED BY ITS STANDING COUNSEL.
HIGH COURT OF KERALA,
ERNAKULAM
(IS SUBSTITUTED AS THE RESPONDENT IN THE PARTY ARRAY
AS PER ORDER DATED 15.02.2018 IN CRL.M.A 827/2018 )
BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
16.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.4381 OF 2006
2
ORDER
Dated this the 16th day of October, 2020 The revision petitioner was the accused in CC No. 1 of 2001 on the file of the Judicial First Class Magistrate Court, Androth and the appellant in Crl.Appeal No.4 of 2005 on the file of the Court of Session, Lakshadweep. By the judgment dated 29.03.2005, the learned Magistrate convicted and sentenced the accused to undergo simple imprisonment for three months and to pay a fine of Rs.1,000/- in default of payment of fine to undergo simple imprisonment for one month more. Feeling aggrieved, the accused has preferred appeal before the Court of Session, Lakshadweep. By its judgment dated 04.11.2006, the learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. Feeling aggrieved, the accused is before this Court.
2. The prosecution case in brief is an bereinbelow:-
The accused was a student of the Pusa Polytechnic at New Crl.Rev.Pet.No.4381 OF 2006 3 Delhi for Mechanical Engineering Diploma course. The accused entered Government service as ITI Instructor on 18.3.1996 in Kalpeni Government ITI and continued in the said post till 19.9.1996. PW1, the then Vigilance Officer of Lakshadweep received reliable information that the certificate produced by the accused before the authority was forged. Accordingly, he made necessary enquiry with the principle of Pusa Polytechnic and it was reported from the said institution that the accused had not even passed the said course and the certificate produced by him before the competent authority was forged. Hence the allegation is that without having passed the Diploma course in Mechanical Engineering, the accused used as genuine the forged provisional Diploma certificate purported to be in his favour and fraudulently obtained employment as Instructor in the Kalpeni Government ITI in the post of Instructor Workshop Calculation and Science and Engineering Drawing. Thereafter, the crime was registered, for the offences punishable under Section 466 and 471 of the Indian Penal Code. After investigation, police filed final report for the aforesaid offences.
Crl.Rev.Pet.No.4381 OF 2006 4
3. On the appearance of the accused, after having heard both sides, the learned Magistrate framed charge against the accused under Section 466 and 471 of the IPC. The charge was read over to the accused to which he pleaded not guilty.
4. During the trial, PWs, 1 to 14 were examined and Ext.P1 to P16 were marked on the prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. However, no defence evidence was adduced on his side.
5. After having heard both sides, the learned Magistrate found the accused guilty under Section 471 of IPC and convicted and sentenced him thereunder as stated supra. However, he was acquitted for the offence punishable under Section 466 of the IPC. The conviction and sentence imposed by the trial court for the offence under Section 471 of IPC was confirmed by the appellate court in appeal.
6. Heard the learned counsel appearing for the revision petitioner and the learned Standing Counsel appearing for the Crl.Rev.Pet.No.4381 OF 2006 5 Lakshadweep Administration.
7. PW8, the Principal of Pusa Polytechnic, New Delhi deposed that a student by name Sirajudheen had studied in the said institution for the Diploma course in Mechanical Engineering. He stated that on the request of the Vigilance Officer, Lakshadweep Administration, he issued a letter stating that Ext.P3 Provisional Certificate, which was produced by the accused before the employment exchange was forged. PW8 confirmed that the signature purported to be that of him was not put by him. He denied his signature in Ext.P3 forged certificate.
8. PW7, who was the Controller cum Registrar of the Board of Technical Education testified that the accused had not even passed the Diploma in Mechanical Engineering. Ext.P16 Status Report issued from the Board of Technical Education clearly proves that the accused had failed in all the semesters as on the date of issuance of Ext.P16. In support of the evidence let in by PW7, PW4 who was the then Head of the Department of Mechanical Engineering also testified that the accused had not passed all the semesters in the Mechanical Engineering Diploma Crl.Rev.Pet.No.4381 OF 2006 6 course. In support of the evidence let in by PW7 and PW4, PW5 the Clerk in-charge of issuance of provisional certificate in the said Polytechnic stated in clear terms that Ext.P14 photocopy of the provisional certificate issue register does not contemplate the issuance of Ext.P3 provisional certificate.
9. On evaluation of the oral evidence adduced by PWs 1 to 5 coupled with Exts.P3, P14 and P16 documents, the trial court entered a finding that the accused produced forged certificate before the competent authority stating that he has passed the Diploma course in Mechanical Engineering. The prosecution has not produced any evidence to show that the accused has forged the said certificate. However, he has produced the certificate before the competent authority to support his claim that he has passed the Diploma course for Mechanical Engineering from an institution in New Delhi with an intend to commit fraud on the Government. In fact, the accused had succeeded in working in the Government Department from 18.03.1996 to 19.09.1996 on the strength of a forged certificate alleged to have been issued by the Pusa Polytechnic, New Delhi.
Crl.Rev.Pet.No.4381 OF 2006 7
10. The term 'forgery' is defined under Section 463 of the IPC. 'Making a false document' is defined in Section 464 of the IPC. The offence of forgery is punishable under Section 465 of the IPC. 'Forgery of record of Court or of public register etc.' is punishable under Section 466 of the IPC. The trial court acquitted the accused for the offence under Section 466 of the IPC on the ground that the prosecution has not adduced any reliable evidence to prove that the accused forged such a document with an intention to produce before the authority. The finding of the trial court was not challenged before the appellate court in accordance with law. Hence, the finding has become final. From the evidence on record, it is clear that the accused produced a forged document before the Government and obtained a job. In a case where the accused fraudulently or dishonestly used as genuine any document which he knew or had reason to believe to be forged shall be punished in the same manner as if he had forged such document. A reading of Section 471 would show that an offence of forgery is punishable with imprisonment with description for a term which may extend to two years, or with fine, or with both'. Crl.Rev.Pet.No.4381 OF 2006 8 Going by the provisions under Section 471 of the IPC, imprisonment is not mandatory. The court has discretion to impose imprisonment or with fine or with both. In the case on hand, the trial court awarded imprisonment for three months and also to pay a fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for one month more.
11. Having taken into consideration all the facts and circumstances of the case, this Court is of the view that the trial court rightly convicted the accused for the offence under Section 471 of IPC. The trial court as well the appellate court meticulously analysed the evidence in detail and entered a finding that the accused committed offence under Section 471 of the IPC. No legal infirmity or error of jurisdiction is pointed out to interfere in revision. Hence, this Court is of the view that the trial court rightly convicted the accused for the offence under Section 471 of the IPC and no interference is warranted in exercise of powers of revision by this Court.
12. Coming to the question of sentence, the learned counsel for the revision petitioner submitted that the accused was only 23 Crl.Rev.Pet.No.4381 OF 2006 9 years in 1996. He has been conducting this case for the last 21 years. He has undergone the agony of criminal prosecution for the last 21 years. The learned counsel for the revision petitioner further submits that he had not been involved in any other case previously. Considering the age of the offender, the learned counsel for the revision petitioner seeks indulgence of this Court to reduce the sentence.
13. However, the learned Standing Counsel for the Lakshadweep Administration, on instructions, submitted that this is a case where the accused produced forged documents before the competent authority and managed to obtain a job defrauding the Government. Hence, according to the learned Standing Counsel, the trial court awarded only a flee biting sentence to the accused and it is not in the interest of justice to reduce the sentence as canvassed by the learned counsel for the revision petitioner.
14. Having taken into consideration of the facts and circumstances including the age of the offender, this Court is of the view that this is a fit case for taking a lenient view in the matter of sentence. It is clear that the revision petitioner has been Crl.Rev.Pet.No.4381 OF 2006 10 conducting this case for the least 21 years and he realised the agony of criminal prosecution for all these years. For these special reasons, this Court is inclined to reduce the sentence in this case.
In the result, the revision petition is allowed in part. The conviction imposed by the trial court which was later confirmed in appeal stands confirmed. The sentence is modified. The revision petitioner/accused is sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs.5,000/- in default of payment of fine to undergo simple imprisonment for a period of six months. The Registry shall send back the records to the trial court for execution of the sentence in accordance with law.
Sd/-
N.ANIL KUMAR, JUDGE dlk/16.10.2020