Bangalore District Court
Smt.D.S.Balasaraswathi vs W/O Late R.Devaraju on 29 April, 2015
IN THE COURT OF THE LXII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-63), BENGALURU.
DATED: THIS THE 29th DAY OF APRIL, 2015
P R E S E N T:-
Sri.S.SHANTAVEER
B.A., LL.B (Spl.).,
LXII Addl.City Civil & Sessions Judge,
Bengaluru
CRIMINAL APPEAL No.116 /2014
BETWEEN:-
APPELLANT/ Smt.D.S.Balasaraswathi,
ACCUSED W/o late R.Devaraju,
Aged about 45 years,
Residing at No.16, 18th cros,
Ranganathapura main road,
Malleshwaram,
Bengaluru
(By Sri-D.K - Advocate)
//Vs//
RESPONDENT/ State of Karnataka,
COMPLAINANT Rept by Ulsoorgate Police
Bengaluru.
(By Public Prosecutor)
2 Crl.A.No.116 / 2014
JUDGMENT
This is a criminal appeal U/s.374 of Cr.P.C filed by the appellant/accused, being aggrieved by the conviction judgment passed by the learned VI Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.20117 /2004 dated 23.01.2014 praying to set-aside the Judgment of conviction.
2. For the sake of convenience, the appellant and respondent of the present case will be referred by their original ranking before the Trial Court. The appellant is the accused and respondent is the complainant before the trial court.
3. The brief facts of the case are as under :
The accused in collusion with absconding accused submitted her forged B.A. Degree Marks Card on14.01.2014 for getting two additional increments representing that the documents are genuine documents. But on verification, it 3 Crl.A.No.116 / 2014 was found that the documents were forged. Hence a complaint came to be filed against the appellant / accused for the offences punishable under Sections 420, 468, 471 and 474 of IPC. After conclusion of investigation the charge-sheet came to be filed against the above named accused.
4. Thereafter, the learned Magistrate has taken cognizance of the offence and registered the case against the accused in Register No. III. The accused on service of summons appeared before the Trial Court and was enlarged on bail. A plea was read over and explained to the accused. Accused pleaded not guilty and claimed to be tired. The case was posted for trial of the accused.
5. In order to bring home the guilt of the accused, the prosecution examined 5 witnesses as Pws.1 to 5 and got marked documents at Ex.P.1 to Ex.P.18. After closure of the evidence of the prosecution, the statement of the accused under section 313 of Cr.P.C., was recorded. The accused has 4 Crl.A.No.116 / 2014 denied the incriminating evidence that was read over to her. The accused has neither stated anything in her defense nor led evidence in her defense.
6. After hearing both the parties on appreciation of oral and documentary evidence on record the learned magistrate has convicted the accused/appellant for the above said offences. Aggrieved by the impugned Judgment of the trial Court, the appellant/accused is before this court with this appeal. The accused contended that the Judgment of the trial court is perverse, capricious, illegal and un-sustainable under law. Pw.1 in his evidence deposed that, after examining Exs.P.2 to 5 he found that they are not genuine. But in the cross-examination he has admitted that he was not shown the originals by the police. This clearly goes to show that the witness without verifying the original document has arrived at wrong conclusion regarding genuineness of the documents. The complaint had filed the 5 Crl.A.No.116 / 2014 complaint only on the basis of Xerox copies. Hence the evidence of Pw.1 cannot be accepted. But the trail Court has heavily relied on deposition of Pw.1 and convicted the accused.
It is further contended that Pw.2- the Assistant Registrar of Bengaluru University has deposed that, the names of the tabulators shown in Ex. P.2 to 4 is not tallying with the documents relied by the prosecution, as their names are not appearing in the list of tabulators. But the trial Court has failed to prove the facts that Exs.P.6 to 8 are not the original or certified copy which does not bear the seal of the University. Even Pw.2 has admitted that she was not shown the original documents. Ex.s P.6 to 8 were produced by the learned Sr. A.P.P during the course of trial and there is no explanation why the same are not produced before the I.O.
The accused further contended that, Pw.4 the Registrar of Evaluation of Bengaluru University admits that, 6 Crl.A.No.116 / 2014 he initially told to file the complaint verifying only the Xerox copy of the documents. But in his cross-examination, he has deposed that the signatures on Exs.P.12 to Ex.P.13 original marks cards resembles that of the Ex-Registrar. But the I.O has not investigated regarding the signature or verified the signature of above said Mr.Hanumanthappa. Hence the investigation done by the I.O is not proper. Moreover, as admitted by Pw.4, the documents were not sent for Forensic Science Lab for examination and report.
Pw.5- Examination Evaluator in Bengaluru University has denied giving of any statement before the I.O. and admits that he does not know anything about the case. On the basis of concocted and furnished the documents, the trial Court has convicted the accused wrongly. Hence the Judgment of the trial Court is un-sustainable and there is necessity to intervene in the Judgment of the trial Court by 7 Crl.A.No.116 / 2014 allowing the criminal appeal and by setting aside the Judgment of the trail Court and acquitting the accused.
7. The State appeared through the learned Public Prosecutor. The LCR was called for and secured.
8. Heard both the sides. Perused the records.
9. The following points arise for the consideration of the court :-
1) Whether the prosecution proved the charges against the accused before the trial Court?
2) Whether the Judgment of the trial court is un-sustainable under law?
3) Is there any necessity to intervene in the judgment of the trial court?
4) What order?
10. The findings of the court on the aforesaid points are as under:
Point No.1 :- In the Affirmative, Point No.2 :- In the Negative, Point No.3 :- In the Negative, Point No.4 :- As per final order for the following:8 Crl.A.No.116 / 2014
REASONS
11. POINT NOs. 1 to 3:-
As Points No.1 to 3 are interrelated they are taken up together for discussion to avoid repetition.
The Ld. Advocates for the accused and complainant has argued as per their stand before the trial Court.
12. A perusal of the records of the trial Court reveals that, the trial Court has examined in all 5 witnesses. Pw.1- R.Premaraj is the complainant and he has deposed that, while he was working as Registrar of Evaluation at Bengaluru University he received marks card concerning to the accused from State Bank of Mysore, Malleshwaram Branch on 24.01.2004 for verification and report. On verification, he found that the registration number found on the said document does not tally with the registration number of that particular academic year. The Convocation Certificate was bearing the date, prior to the convocation 9 Crl.A.No.116 / 2014 date. The convocation certificate will be issued only after 5 months from the date of convocation. On verification, he found that the said documents were forged and created. In that regard he issued a letter as per Ex.P.1. He has also deposed that on 31.01.2004 the convocation of the Bengaluru University was not held. Further he has deposed that, the signatures finding place on Exs.P.2 to 4 were not the signatures of Registrar of Evaluation at that time.
13. The specific contention of the accused is that only on the basis of Xerox copies, Pw.1 has come to conclusion that the documents had forged and created. He has not seen the original at any point of time, hence his evidence is un-reliable. But the Court is of the opinion and considered view that, during the course of chief-examination as well as cross-examination of Pw.1 has deposed that for the particular academic year, the registration number shown in the marks card Ex.P.2 to Ex.P.4 was not assigned to any 10 Crl.A.No.116 / 2014 student from the University. If at all, the accused was a student of Bengaluru University for the relevant period and attended the examination and she was successful in passing the examination as contended by her as shown in Ex.P.12, 13, 14 and 15, the marks cards and convocation certification with the specific registration number, then nothing prevented the accused to produce the hall ticket for the said period to show that she appeared for the examination for the specific period with the specific registration number. But she has not done so.
14. Moreover, the Convocation certificate will be issued only after receiving the prescribed fee, the accused could have produced the receipt of the Bengaluru University to show that she had paid prescribed fee to obtain the convocation certificate from the University. But the accused has not produced any such documents. Further, this Court is of the opinion that, Ex.P.16 clearly reveals that the Registrar 11 Crl.A.No.116 / 2014 of Evaluator who signed on Exs.P.13 and 14 was not at all working at the relevant period of time and the convocation certificate i.e., Ex.P.16 does not bear the distinctive Hologram of Bengaluru University.
15. Considering the same, Court is of the opinion that the accused has failed to prove that she had appeared for the examination held by Bengaluru University for the relevant period and was successful in passing the examination. On the other hand, the accused submitted an application as per Ex.P.17 seeking sanction of two additional increments for completing her graduation. When the accused files an application before the competent authority seeking sanction of additional increments, she ought to have proved that she appeared for the examination and was successful in completing the graduation.
16. Pw.2- Smt.Vasundhara is Assistant Registrar at Bengaluru University. She has deposed that on 12 Crl.A.No.116 / 2014 verification of the marks card sent by the Bank, the signature finding place on Exs.P.2 to 4 were not the signatures of the tabulators at the relevant period time. The name of the said tabulators was not found in the list of remuneration list for the year 2002 to 2004. The copies of the Tabulators remuneration list are produced at Exs.P.6 to Ex.P.8. No- doubt the accused contended that the said documents are the copies and they are not signed by the authorities and does not bears the signature of the competent authorities. Considering the same, the Court is of the opinion that it is a cyclostyle copy, wherein the remuneration to be paid to the tabulators is mentioned. But the names of the tabulators shown in Exs.P.12 and 13 is not finding place in the Exs.P.6 to 8. If at all, the accused had appeared for the examination on the specific date along with registration number, nothing prevented the accused to get the original from the University by filing an application before the trail Court. But she kept quiet and harping much that the prosecution has not proved 13 Crl.A.No.116 / 2014 the case only on the ground that lists of tabulators' remuneration is not the original. Hence the accused has failed to rebut the evidence of the prosecution.
17. Pw.3- Smt.Puttamma is the Police-Inspector / I.O. She has deposed regarding the investigation and filing of charge sheet after conclusion of investigation.
18. Pw.4- K.H.Nanjegowda was the Registrar of Evaluation at the relevant period has deposed that one Hanumanthappa was not the Registrar at the relevant period. He was the Registrar during the relevant period. The signature finding place on Ex.P.4 is not his signature. He has also deposed that the signature on Ex.P.15 Convocation Certificate resembles the signature of V.C one Thimmappa, but it is not his signature. The convocation for the year 2004 was held in the month of February. Before the convocation was held, the Ex.P.15 was sent to him for verification. He has replied that the said documents are not genuine 14 Crl.A.No.116 / 2014 documents and complaint came to be filed regarding the same as per Ex.P.9. Nothing much is elicited in the cross- examination of Pw.4. The accused has failed to prove that for the year 2004 the convocation was held before issuing of convocation certificate to the accused. Pw.4 has categorically deposed that the convocation was held in the month of February 2004. Hence for the afore said reasons the Court is of the opinion that the accused has failed to rebut the evidence of the prosecution.
19. Pw.5- R.Sudharshan is the Assistant Registrar of Bengaluru University. He has deposed that the convocation certificate bearing No.011 EX 005, A-39 AMIEX- 2352 was not issued from the Registrar of University and the said convocation certificate belongs to some other person. Though in the cross-examination he has admitted that he has not given any statement before the police as per Ex.P.1. But it does not mean that the Convocation Certificate Ex.P.15 is 15 Crl.A.No.116 / 2014 the certificate issued by the Bengaluru University. The accused has to prove that she appears for the degree examination at the relevant period held by Bengaluru University and she completed her graduation as per Exs.P.12 to 15.
20. On the other hand, the prosecution had proved that the accused with a help of created and fabricated document attempted to take financial benefits i.e,., 2 additional increments from the appointing authority i.e., State Bank of Mysore. Hence she has committed the offences charge-sheeted by the prosecution. Considering the same, the Court is of the opinion that the trial Court has considered all these facts and passed the Judgment with proper reason. Therefore, the Judgment of conviction passed by the trial court cannot be termed as perverse, capricious and un-sustainable under law. Hence there is no necessity to intervene in the impugned judgment of the trial court. 16 Crl.A.No.116 / 2014 Hence, the Point No.1 is answered in the Affirmative and points 2 and 3 are answered in the negative.
21 .POINT NO.4 :- For the aforesaid reasons the following:
ORDER The Criminal Appeal preferred by the appellant/accused U/Sec.374 of Cr.P.C is hereby dismissed.
The impugned judgment of conviction and sentence passed by the learned VI Addl.Chief Metropolitan Magistrate, Bengaluru dated 23.01.2014 in C.C.No.20117/2004 is hereby confirmed.
Send back the lower court records along with copy of this Judgment to the trial court forthwith.
(Dictated to the Judgment, transcribed by her, corrected by me and then pronounced in open court on this the 29th day of April, 2015) (S.Shantaveer) LXII Addl.City Civil & Sessions Judge, (CCH-63), Bengaluru 17 Crl.A.No.116 / 2014