Revision vs By Advs on 29 June, 2020

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Kerala High Court

Revision vs By Advs on 29 June, 2020

1. This Criminal Revision Petition has been filed against the conviction and sentence passed by the Additional Sessions Judge (Ad hoc-I), Manjeri in Crl.Appeal 415/2007 dated 31.7.2009 against the revision petitioner.

2. The prosecution case in short is as follows :

While the revision petitioner had been working as Extra Departmental Delivery Agent (EDDA) at Valluvambram sub post office on 2.5.1998, 8.5.1998, 9.5.1998, 16.5.1998, 21.5.1998, 26.5.1998, 28.5.1998, 4.6.1998, 6.6.1998 and 11.6.1998, he failed to deliver the letters addressed to GMLP School,Athanikal where PW3 had been working as Headmaster and also GUP School,Muthirapparamba where CW7 had been working as Headmaster. He fabricated the official records by forging the signatures of PW3 and CW7, the Headmasters of the above schools and misappropriated the Crl.R.P.3303/2009 3 postal articles and thereby committed criminal breach of trust for the purpose of cheating.

3. The crime was registered by PW10 who was the additional sub inspector of police attached to Manjeri station, on getting Ext.P1 complaint forwarded from the office of Circle Inspector. Thereafter PW11 conducted the initial investigation, PW13 continued the investigation and PW12 completed the investigation and filed the charge against the accused under Secs 406 and 468 of IPC.

4. On the side of the prosecution, PW1 to 13 were examined and Exts.P1 to P34 were marked. After the closure of prosecution evidence, the revision petitioner/accused (hereinafter referred to as the accused) was questioned under Sec.313 Cr.P.C. He denied all the incriminating facts and circumstances put to him. After hearing both sides, the learned Chief Judicial Magistrate found the accused guilty under Secs 406 and 468 IPC and sentenced him to undergo simple imprisonment for six months each and to pay fine of Rs.1000/- each under Secs 406 and Crl.R.P.3303/2009 4 468 IPC with a direction to run the sentence concurrently. Against which the appeal was filed before the court of Sessions, Manjeri and Additional Sessions Judge (Ad hoc-I), Manjeri dismissed the appeal, confirming the conviction and sentence passed by the trial court. Aggrieved by the same the revision petitioner came up in revision.

5. Notice was issued to the respondent and the learned public prosecutor appeared on behalf of the respondent. Lower court records were called for and perused. Both sides were heard.

6. Learned counsel for the revision petitioner/accused assail the conviction and sentence passed against the revision petitioner (revision petitioner will hereinafter be referred as accused) on various grounds. According to him, there is no admissible evidence with respect to the entrustment of properties with the accused. He would contend that the investigation is only a repetition of the enquiry conducted by the postal authorities and further that the signature of accused ought to have been sent for expert opinion. Further he would contend that the Crl.R.P.3303/2009 5 documents produced were not seized from the accused and the prosecution failed to prove the motive and he would also contend that even if the entire case is admitted, it would only amount to a dereliction of duty and no criminal offence is made out. For the dereliction of duty he has already been terminated from service and hence he seeks for setting aside the conviction and sentence passed against the accused.

7. The learned public prosecutor on the other hand would content that both the courts below on a careful evaluation of facts and law found the accused guilty and there is no reason what so ever to interfere with the same.

8. To prove the entrustment of the properties with the accused, prosecution relies upon the evidence of PW1 to 6. PW1 is the postal Superintendent of Manjeri division who set the law in motion by sending Ext.P1 complaint with respect to the accused. He produced Ext.P2 list, which contains the letter number, the post office from which it was obtained and the date of receipt and delivery of the letter. He would also state Crl.R.P.3303/2009 6 that among them, serial Nos.1 to 9 have been served to GMLPS, Athanickal and item No.2 is the letters to be delivered to GMUPS, Muthirapparamba. He would also state that these letters have been booked from Calicut HD and came from the passport office . Admittedly he had no direct knowledge regarding the incident because he had not been working in the post office, Valluvampram, during the relevant time.

9. PW2 was the Assistant Postal Superintendent of Manjeri postal division, who conducted the annual inspection as per the direction of postal superintendent. According to him, at the time of inspection, it was found that some receipts of registered letters, which ought to be served to some school headmasters, were not containing the seals and the signature of the headmaster were found to be different in some letters. Since he was suspicious of the same, he took statement from the accused and examined the postal items entrusted with the accused. Some of the letters in his possession were found to be recorded as delivered to the addressees on previous dates Crl.R.P.3303/2009 7 and he filed a report for a detailed investigation to postal superintendent. He also stated that serial No.1 of item No.1 in Ext.P2 was entrusted to the accused as per Ext.P3 list and Ext.P4 is the delivery slip in respect of the delivery of that letter. Serial No.2 in item No.1 of Ext.P2 was entrusted to the accused for delivery as evident from Ext.P5 registered list and Ext.P6 is the delivery slip in respect of the same. Serial No.3 in item No.1 of Ext.P2 was entrusted to the accused for delivery as per Et.P7 registered list and Ext.P8 is the delivery slip with respect to the same. Serial No.4 in item No.1 of Ext.P2 was entrusted to the accused as per Ext.P7 list and the delivery slip of the same is Ext.P8. Serial No.5 in item No.1 of Ext.P2 was entrusted for delivery as per Ext.P9 registered list and the delivery slip is Ext.P10. Serial No.6 in item No.1 of Ext.P2 was entrusted to the accused for delivery as per Ext.P11 registered list and the delivery slip is Ext.P12. Serial No.7 in item No.1 in Ext.P2 was entrusted to the accused as per Ext.P13 registered list and the delivery slip in respect of the same is marked as Crl.R.P.3303/2009 8 Ext.P14. Serial No.8 in item No.1 of Ext.P2 was entrusted for delivery under Ext.P15 registered list and the delivery slip is Ext.P16. Serial No.9 in item No.1 in Ext.P2 was entrusted as per Ext.P17 registered list and the delivery slip is Ext.P18. PW2 said that in Exts.P4, P6, P8, P10, P12, P14, P16 and P18 delivery slips, some writing as the signature of the headmasters are seen and the seal of the school is also not seen.

10. He would further depose that serial No.1 in item No.2 of Ext.P2 was entrusted for delivery to the accused as per Ext.P3 list. That is seen to have been delivered as per Ext.P19 delivery slip. Serial No.2 of item No.2 of Ext.P2 was entrusted for delivery to accused by Ext.P20 registered list and Ext.P21 is the delivery slip with respect to the same. He would also state that in Exts.P19 and P20 the seal is not affixed since he found the documents to be suspicious, for a detailed enquiry, he filed report which is marked as Ext.P31. Ext.P32 is the statement given by the accused to him in connection with the Crl.R.P.3303/2009 9 same. Ext.P32(a) is the statement of PW6 recorded just below Ext.P32 statement of the accused.

11. PW3 and PW4 are the headmasters who have been examined by the prosecution in support of the evidence of PW1 and PW2. PW3 is the headmaster of GMLPS, Athanickal during the relevant time and according to him, he is in acquaintance with the accused who was the postman attached to Valluvambram post office. He would depose that while he was working as headmaster in that school, some letters addressed to the school from passport office had not been received. He also admitted that his statement was taken and the statement given by him to the postal inspector is marked as Ext.P22. He also deposed that Ext.P4 is the delivery slip and item No.8 in Ext.P4 has been addressed to the Headmaster, GMLPS from head post office, Kozhikode and according to him the signature across item No.8 is not that of him. In Ext.P6 in item No.1 he is the addressee but the signature seen across the same is not that of him and that the address in item No.1 in Crl.R.P.3303/2009 10 Ext.P8 is that of himself but the signature is not that of him. Further he deposed that the address of item 5 in Ext.P10 is his office address, but the signature is not that of him. The addressee in serial No.3 of Ext.P12 is himself but the signature across the same is not that of him. He also stated that the address in serial No.8 in Ext.P18 is that of him, but the signature shown against it is not that of him.

12. During cross-examination of PW3, attempts were made to bring out that in his absence charge would be given to other staff and they would receive the letter on behalf of him. But he categorically stated that nobody in charge has received it and if at all they have received it, it would be handed over to him. He also asserted that the signature shown against the school, is school address and it can definitely be said as not that of any of the teachers because he knew the signatures of other teachers. He also stated the names of some employment hands as teachers and he is aware of their signatures also. On a close evaluation of his evidence, it could be seen that the Crl.R.P.3303/2009 11 accused could not bring out any material to show that any other teachers who were in charge of the headmaster have received the items which have been referred by him in chief- examination. So the evidence of PW3 would prove that the letters which have been referred in Exts.P4, P6, P8, P10, P12 and P18 therein have not been received by him and the signature shown in the delivery slip across the letter addressed to the headmaster of the school is not that of him or any of the teachers or employment hands working under him.

13. The other headmaster examined was PW4 who was attached to GMUPS, Muthirapparamba from July 1998 onwards. According to him, his predecessor was George Joseph and he also stated that while he took charge as the headmaster, accused was the postman and Ext.P23 is the statement given by him to the postal inspector. He also stated that he knew the signature of George Joseph, his predecessor and further deposed that against serial No.9 in Ext.P21, there is a signature across GUPS Muthirapparamba and that is not Crl.R.P.3303/2009 12 of George Joseph. He also stated that the delivery slip No.3121 dated 16.5.1998 has been shown as serial No.3 in Ext.P19, but the signature against serial No.3 is not that of George Joseph.

14. The main contention of the learned counsel for the revision petitioner is that George Joseph has not been examined and hence the evidence of PW4 with respect to the signature of George Joseph cannot be accepted as the conclusive proof to come to a conclusion that the signature is not that of George Joseph. On going through the records, list of witnesses produced from the side of the prosecution would not reveal that CW7 George Joseph was given up by the Deputy Director of prosecution. The judgment of the lower court is also silent as to why CW7 George Joseph was not examined. It is revealed from Ext.P23, the statement given by PW4 to the postal inspector, that the signature of George Joseph was shown to him and he has denied the same as that of George Joseph. Ext.P23 also would go to show that the Crl.R.P.3303/2009 13 said George Joseph is working at GMLP School, Cheruvannur. So why he has not been examined is not discernible either from the judgment passed by the trial court or that of the appellate court. PW4, the headmaster GMUPS, was not the headmaster while the disputed letters were addressed to that school. Though he stated that the signatures across the headmaster is not that of George Joseph, the prosecution could not establish as to what prevented in not examining CW7 George Joseph. PW4 during cross-examination also pleaded ignorance whether anybody had received the registered letters addressed to the headmaster when he was not in charge of the headmaster of that school. He also pleaded ignorance when a question was put to him that Exts.P19 and P21 are the letters delivered in that school, since those were not related to his tenure. So as far as the non delivery of letters with respect to GUPS, Muthirapparamba is concerned, the prosecution could not adduce any convincing evidence due the non examination of CW7 George Joseph Crl.R.P.3303/2009 14

15. In support of the evidence of PW3, the statement of the accused admitting the non delivery of the items have been produced and marked as Ext.P26 and P32. Ext.P26 is a statement given by the accused to the postal Sub Divisional inspector(Pw5) on 14.9.1998 in which he has clearly stated that he had been working as EDDA at Valluvambram post office for 14 years and he also stated that Musaliyar pedika, Athanickal etc would come under his area of delivery. GMLPS, Athanickal and GMUPS Muthirappramba also come under his area. He also stated that the items which have been specified by him in Ext.P23 from the passport office, Kozhikode, had been entrusted with him for delivery and the delivery slips were also shown to him at the time of taking statement and he also categorically admitted that in none of the delivery slips, the seal of the school or that of the headmaster are there and he is aware that seal has to be affixed since all those are official letters. He also stated that he has not delivered those letters to the addressee or obtained signature. Majority of those letters Crl.R.P.3303/2009 15 have been taken by himself on signing and he also referred the name of one Ashraff, the owner of Al-Ameen travels, at whose instance he had done this. It is also stated that the letters used to be handed over to the travel agencies without opening and he did not know the contents and it was done due to the compulsion of the travel agency man. It is also stated that he had done that mistake and it is a serious dereliction of duty.

16. Ext.P32 is another statement given by the accused with regard to the delivery of certain other letters to the addressees,but according to him though those letters were delivered to the respective addressees as requested by them those were kept in his bag. But those addresses were not questioned by PW5 or the investigating officer .So Ext.P32 has no bearing in this case.

17. Ext.P26 statement has been recorded by PW5, the senior postmaster attached to head post office, Kozhikode,who was the then Postal Sub Divisional Inspector. PW5 deposed that as per the direction of postal Superintendent, he inspected Crl.R.P.3303/2009 16 Valluvampram ED post office as per the complaint regarding the distribution of registered letters. He also deposed that he has seized the registered letters and delivery slips which have already been proved through PW2. He recorded the statement of the accused which is marked as Ext.P26. He also stated that the items seized by him from the accused have been seized as per seizure mahazar by PW13 and that has been taken back on kaichit. The seizure mahazar is marked as Ext.P24 and the kaichit is marked as Ext.P34. On perusing Ext.P24 seizure mahazar it is seen that the documents which have been marked through PW2 have been described specifically therein. The statement given by Pw3 to Pw5 is marked as Ext.P22. Nothing could be brought out during cross examination to discredit Pw3 with regard to Ext .P22 So the evidence of PW5 coupled with Ext.P24 seizure mahazar and Ext.P34 kaichit along with Ext.P26 statement given by the accused which has been proved through PW5, and the evidence of PW2 and Ext.P2 to 19 would prove that the Crl.R.P.3303/2009 17 articles seized by PW5 from the accused have been seized by the sub inspector as part of the investigation. Though it has been found in the judgment of the appellate court that PW5 was not cross examined, on perusing the records it is seen that he has been cross-examined subsequently(Readable copy of deposition of Pw5 does not contain the cross- examination part ) and in spite of lengthy cross-examination, nothing could be brought out to infer that there was any undue influence on compulsion or that those statements were created fraudulently by him and it is also to be noted that there is not even a suggestion that he has got any enmity towards the accused and the suggestion made to him was that in order to appoint a relative of PW6, the branch postmaster, these false allegations have been made against the accused. That has been stoutly denied by him also. So in effect, on appreciating the evidence of PW5, who had been working as postal Sub Divisional Inspector, Malappuram, there is nothing brought out to discredit his testimony regarding the seizure of the articles Crl.R.P.3303/2009 18 by him from the accused and from him by PW13 subsequently. So the contention of the learned counsel for the revision petitioner that entrustment of the articles with the accused has not been proved etc, cannot be accepted at all.

18. So also the statement given by the accused to Pw5 which has been marked as Ext.P26 as has been rightly found by the courts below would amount to extra judicial confession and can be taken as corroborative evidence. In Ext.P26 statement given by him, the accused admitted about the entrustment of the postal articles mentioned in Ext.P2 to him and the non delivery of the letters to the respective addressees. He had also stated that it has been so done in order to help one Ashraf. These postal articles were proved to have been send from post office, Kozhikode to the respective headmasters for verification of the age of passport applicants. Though it was suggested to PW5 that Exts.P26 and P32 were created fraudulently under compulsion, there is no material to substantiate that fact. The fact that the accused was the EDD Crl.R.P.3303/2009 19 agent attached to Valluvambram post office during the relevant time is also not seen disputed.

19. The learned counsel for the accused would next contend that the signature of the accused in Ext.P26 and P32 are not admitted by him and no steps has been taken to prove the signatures of the accused in those documents and those ought to have been send for expert opinion to prove that the signatures are that of the accused.

20. But it is the fundamental rule of evidence that the burden of proof is upon the person who asserts. If at all the accused has dispute with regard to his signature, the burden is upon him to take steps for sending the disputed signatures for expert opinion.

21. In this context it is relevant to quote the following provisions of the Indian Evidence Act,1872 which reads as follows :

101. Burden of proof - Whoever desires any Court to Crl.R.P.3303/2009 20 give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

102. On whom burden of proof lies - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

103. Burden of proof as to particular fact - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

22. When the accused wanted to prove that the signature in Ext.P26 and P32 are not that of him, the burden is heavily upon him to take steps for sending the signature for expert opinion to prove that it is not that of him and the prosecution cannot prove a negative fact that the signature in Exts.P26 or P32 is not that of accused. So also the trend of cross- examination of PW5 is that the signature of accused was Crl.R.P.3303/2009 21 obained on inducement and misusing his power as a s superior officer. So the signature of accused in Ext.P26 and P32 are rather admitted. Hence the contention of the learned counsel that the signature of the accused ought to have been sent for expert opinion by the prosecution is not at all sustainable in law.

23. The learned counsel for the accused would further contend that Ext.P1 is only a reminder of the original complaint already sent by the predecessor of PW1 .During cross- examination of PW1 , he admitted that his predecessor had filed a complaint and Ext.P1 is only a reminder and he also stated that he does not know about the follow up action on that complaint . But during re-examination it was brought out that it is not correct to say that Ext.P1 is a reminder and DO letter has been referred in it. But PW12 who completed the investigation and filed the charge in the case stated during cross-examination that as per Ext.P1 prior complaint has been received by the police .

Crl.R.P.3303/2009

24. On perusing Ext.P1 it appears that there is reference with regard to the previous DO letter dated 17.6.1999 sent by the predecessor of PW1 regarding irregularities in the delivery of registered letters . It is further stated that in continuation of the same he is enclosing the list showing irregularities. So what could be discerned from Ext.P1 is that it is not simply a reminder and DO number has been shown and it is in continuation of the earlier correspondence. So the fact that the earlier correspondence could not be brought in evidence by the prosecution would not make Ext.P1 as a reminder alone. So non registration of FIR by the police on receiving the first letter cannot be said as fatal.

25. The learned counsel would next contend that the motive behind the incident could not be proved by the prosecution. Even though it has come out in evidence that it is at the instance of one Ashraf, Al-Ameen travel agency that the accused alleged to have done the above acts, no investigation was made by the prosecution in that regard. PW5, the postal Crl.R.P.3303/2009 23 sub-divisional inspector who questioned the accused and seized the documents and also obtained Ext.P26 statement from the accused during cross-examination would depose that he has not conducted any enquiry in connection with the involvement of Ashraff. But it is to be noted that PW5, the postal sub-divisional inspector may not be having any power to question Ashraff or collect any evidence with respect to him. But in Ext.P26 there is clear statement by the accused that it is at the instance of Ashraff of Al-Ameen Travel agency that he has done the act and for which he got some illegal gratification also. Otherwise he would not have done the same also. So there is some material to prove motive. So also the motive behind the incident is not of much relevance in the case alleged against the accused since the act itself is seen to have been proved through oral and documentary evidence adduced from the side of the prosecution.

26. The learned counsel would further contend that at the best even admitting the entire prosecution case, what the Crl.R.P.3303/2009 24 prosecution could bring out is only a dereliction of duty and for that, he has already faced the consequences and had been terminated from the service. So a criminal offence, as alleged by the prosecution, would not be attracted in the present case. The learned counsel would content that the ingredients of Secs 405 or 468 will not be attracted to the fact situation of this case. For convenience, Sec. 405 of IPC is extracted as follows :

405. Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".

27. In this context it is relevant to quote Govindan Nair v. Crl.R.P.3303/2009 25 State of Kerala (1968 KLT 984) = (1968 KHC 199) wherein while dealing with Secs 406 and 420 IPC, the ingredients to attract Sec.405 has been dealt with in para No.12 and it has been stated that all what is required to satisfy the definition of this Section is that (1). there must be an entrustment with property or with any dominion over property in any manner (2). a dishonest misappropriation or conversion of that property to the own use of the person with whom it was entrusted or a dishonest use or disposition of that property and (3). that the said misappropriation, conversion, use or disposition must be in violation of any direction of law prescribing the mode in which such trust is to be discharged or any legal contract which he has made touching the discharge of such trust.

28. So in this case I have already discussed that the fact of entrustment of the property and dishonest misappropriation could be established by the prosecution through the evidence of PW2, PW5 and PW1 and the documents, Exts.P2 to P16, P24 coupled with Ext.P26 the statement given by the accused Crl.R.P.3303/2009 26 and the next ingredient is dishonest use or disposal of that property in violation of the direction of law prescribing the mode in which such trust is to be discharged. While entrusting the postal articles with the postman, the accused herein, there is a legal direction on him to deliver the same to the addressee concerned and when there is non delivery of the property in violation of the direction and keeping the articles with him or otherwise dealt with the property, the ingredient of disposal of property in violation of the direction of law prescribed in the mode in which such trust is to be discharged is clearly made out. Here the evidence of PW3 headmaster would convincingly prove that the letters referred in Ext.P4, 6, 8, 10, 12 and 18 delivery slips addressed to his official address had not been delivered to him and the signature seen as that of him across the address are not that of him. That would definitely prove the dishonest disposal of those postal items in violation of the direction to the accused and thereby failure to discharge the trust that has been reposed upon him by not delivering to the Crl.R.P.3303/2009 27 concerned addressee. In Ext.P26 statement, he has clearly stated that it has been so done at the instance of Ashraff and for which he has received little gratification. So the dishonest disposal of property in violation of the direction of law prescribing the mode in which a trust is to be discharged is clearly attracted. More over the statement given by the accused which is marked as Ext.P26 can also be read in corroboration with the prosecution case of non delivery of the registered articles purposely by the accused. So on an evaluation of the entire evidence adduced from the side of the prosecution, as has been found by the trial court and the appellate court, there are convincing material to prove the criminal breach of trust on the part of the accused.

29. The learned counsel for the accused also vehemently contend that offence under Sec.468, for which also the accused has been found guilty, would not be attracted in this case. In order to attract Sec.468 it must be proved by the prosecution that the accused has committed forgery intending Crl.R.P.3303/2009 28 that the documents forged shall be used for the purpose of cheating. Section 468 IPC reads as follows:

Forgery for purpose of cheating:- Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description a term which may extend to seven years, and shall also be liable to fine.

30. In order to attract the offence of cheating, it should be proved that a person should dishonestly induce another to deliver any property or to consent that any person shall retain any property or should intentionally induce a person so deceived to do or omitted to do which he would not do or omitted if he were not so deceived and that act or omission causes or likely to cause damage or harm to that person in body, mind, reputation, property etc. The explanation also provides that dishonest concealment of facts is a deception.

31. I am afraid, what could be established by the prosecution is after entrustment of the letters to the accused, he failed to Crl.R.P.3303/2009 29 deliver the letters to PW3 the headmaster and put his signature and forged the same and caused to appear it as delivered and further that though prosecution alleges that it has been supplied to Ashraff, Al-Ameen travels no investigation in that regard has been made. That ought to have been investigated by the prosecution .So also in order to attract cheating, there should be deception or dishonest inducement on the part of the accused upon the department to deliver the property to him. Here what could be proved by the prosecution is only as a routine work allotment, letters addressed to the addresses mentioned in the letters, had been entrusted with him since those letters come under his area. There is nothing to infer any fraudulent or dishonest inducement on the part of the accused for entrustment of the letters with him for delivery. So the finding in para 19 in the appellate judgment that the accused had deceived his department and fraudulently and dishonestly induced his department to hand over the postal articles to him for Crl.R.P.3303/2009 30 delivering the articles to the addresses and therefore he definitely has committed the act of cheating is not legally sustainable when there is already a finding of entrusment of the letters with him and finding of guilt under Sec/406 IPC against him. In this context it is relevant to quote T.K.Sreeramappa v. State of Karnataka (2006 Crl.L.J) 1851) wherein while dealing with Sec.468 IPC - forgery, it has been held that prosecution has to establish that accused committed forgery and that he did so with the intention that document forged shall be used for a purpose of cheating . In that case accused alleged to have forged hall tickets to enable some other students to appear for examination in place of actual students and hall tickets seized from accused were not of relevant examination in progress and there is no evidence to show for what purpose hall tickets were used in the said circumstances accused was acquitted. It is also held in the said decision that when accused is charge-sheeted for the offence under Sec.468 the prosecution has to establish (i) the Crl.R.P.3303/2009 31 accused committed forgery and (ii) that he did so with an intention that the document forged shall be used for the purpose of cheating. It is further held that the object of Sec.468 IPC was to find out as to whether the accused deceived someone by making false documents. It is also held that if the prosecution were to establish forging of documents and intending to use such forged documents for the purpose of cheating then only accused is liable for being convicted. In this case the prosecution case is that the accused forged signatures of the headmasters in order to help one Ashraff of Al-ameen travels. No investigation in that regard has been made by the police. PW5 who conducted the preliminary enquiry also did not made any enquiry with regard to the same. The investigating officer who was examined as PW13 during cross-examination stated that he does not know whether accused had any loss or profit in not serving or not serving the letters referred in the case to the addressee. Prosecution evidence is also completely silent with regard to Crl.R.P.3303/2009 32 the role of said Ashraff in the alleged act of the accused. So apart from Ext.P26 statement given by the accused in which he has made reference with regard to Ashraff of Al ameen at whose instance he has done the act there is no corroborative piece of evidence collected by the prosecution in that regard. It has already been found that Ext.P26 has been taken as an extra judicial confession and without any further enquiry or evidence in that regard that statement in Ext.P26 given by the accused alone cannot be taken in aid by the prosecution to prove the guilt against the accused under Sec.468 IPC. So I am of the considered view that finding of guilt against the accused under 468 by the trial court as confirmed by the appellate court is illegal and is not sustainable either in law or on facts.

32. Based on the above discussion it can safely be concluded that the concurrent finding of guilt against the accused under Sec.406 IPC is well founded and does not require any interference. But at the same time, the finding of Crl.R.P.3303/2009 33 guilt under Sec.468 is not sustainable in law or on facts and is liable to be set aside.

33. In the result, the Criminal revision petition allowed in part confirming the conviction under Sec.406 IPC and setting aside the conviction and sentence under Sec.468 IPC .

34. With regard to the sentence passed u/s 406IPC the learned counsel for the accused would contend that the case is of the year 2003 and disciplinary proceedings against him initiated long back in the year 1999 and he has already been terminated from service and he is now pretty old and hence maximum leniency has to be given in the matter of sentence. Though he also pleads for invocation of the provisions of the Probation of Offenders Act, 1958, in view of the nature of the offence proved to have been committed by the accused I do not think that this is a fit case to invoke the benevolent provisions of the Probation of Offenders Act. But taking into account the passage of time and the old age of the accused I find it just and proper to modify the sentence to simple Crl.R.P.3303/2009 34 imprisonment for three months and to pay fine of Rs.1000/- in default to under go further period of imprisonment for one month for the offence under S.406 IPC. Bail bond executed by him stands cancelled and he is directed to surrender before the court below for undergoing the sentence passed against him.

Sd/-

M.R.ANITHA Judge Mrcs/22.6.

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