Karnataka High Court
I R Ranga Swamy vs State By Sakleshpura P S on 3 July, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 03rd DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.1134 OF 2009
BETWEEN:
I.R.Ranga Swamy
S/o Range Gowda
A/a 44 years
R/a Obbidu Village
presently R/a Bikkodu Village
Belur Taluk
Hassan District. ...PETITIONER
(By Sri. I.Tharanath Poojary, Advocate)
AND:
State by Sakleshpura P.S.,
By SPP ...RESPONDENT
(By Sri. P. Karunakara, Government Pleader)
This Criminal Revision Petition is filed under Section
397 read with 401 of the Code of Criminal Procedure,
1973, praying that this Honourable Court may be pleaded to set
aside the judgement and order dated 24.10.2009 in
Crl.A.No.57/2001, passed by the P.O., Addl. Sessions Judge,
FTC, Hassan confirming the judgement of the City Civil Judge
2
(Jr.Dn.) and JMFC., Sakleshpur dated: 31.07.2001 in
C.C.No.1107/1994.
This petition coming on for admission, this day, the court
made the following:
ORDER
Heard the learned Counsel for the petitioner and the learned Government Pleader.
2. The petitioner is accused no.1 before the trial court in the following background:-
It was alleged that the petitioner who is said to be the husband of accused no.2 had befriended the father of the complainant and it is claimed by the complainant one Sunanda Devi, that the present petitioner had induced her father to handover the SSLC Marks Card of the complainant promising him that he would be able to secure employment in the State Government for the complainant. Accordingly, the SSLC Marks card had been handed over during the year 1980 and it is further stated that accused no.1, the petitioner had not returned the said document nor did he secure employment for the complainant. On the other hand, on the basis of the said 3 SSLC Marks Card belonging to the complainant, accused no.2 had secured employment using the marks card as her own. When her employer had called upon accused no.2 to produce the Transfer Certificate of the institution, in which, she had passed SSLC during the year 1993, it is alleged that accused no.2 had forged the signature of the complainant and sworn to an affidavit before a Notary Public, to claim that she had lost the original Transfer Certificate and was seeking to produce a duplicate. On the basis of the said affidavit, it was alleged that accused no.2 had procured a duplicate Transfer Certificate in the name of the complainant from the Government Pre- University College, Sakaleshpura and had shown the sub-caste as Lingayath and in the fifth column of the said transfer certificate the forged sub-caste was indicated as Vokkaliga and the same was produced to her superior officers. The complainant, on learning that her marks card had been misused by accused no.2 and had secured employment in the Health Department, the complainant had lodged a complaint before the jurisdictional Police as on 23.12.1993. It is pursuant to this 4 that further investigation was taken up and several incriminating documents were seized from the house of the accused and thereafter a charge-sheet had been filed. The accused pleaded not guilty and claimed to be tried. Pursuant to which, the prosecution had examined about 20 witnesses and marked several documents, namely, Exhibits P. 1 to P.56. The accused had also produced documents, Exhibits D.1 to D.3. On the basis of such material produced and the arguments canvassed, the court below had framed the following points for consideration:-
1. Whether the prosecution has proved beyond reasonable doubt that in furtherance of the common intention of accused nos.1 and 2 about 6 years back from 17.10.1986 the 2ndaccused pretended to be CW.1 by taking the SSLC Marks Card of CW.1 from CW.15 by accused no.1 and got Government employment for accused No.2 and thereby both the accused have committed offences punishable under Sections 419 read with section 34 of the IPC?
2. Whether the prosecution has proved beyond reasonable doubt that in the above said period in 5 furtherance of common intention of accused No.1 and 2 cheated the Government and CW.1 by dishonestly inducing CW.15 by accused no.1 to deliver accused No.1 the SSLC Marks card of CW.1 and thereby both the accused have committed offences punishable under Sections 420 read with 34 of IPC?
3. Whether the prosecution has proved beyond reasonable doubt that in the above said period in furtherance of their common intention of accused nos.1 and 2 in Sakleshpur the 2nd accused forged the affidavit attested before the Notary Sri Prathap with intent to commit fraud in order to get Government employment for accused No.2 and thereby both accused have committed offences punishable under Sections 465 read with 34 of IPC?
4. Whether the prosecution has proved beyond reasonable doubt that in the above said period in Sakleshpur in furtherance of common intention of accused Nos.1 and 2, accused No.2 forged Transfer Certificate to which purport to be a record and thereby both the accused have committed offences punishable under Section 466 read with Section 34 of IPC?
5. Whether the prosecution has proved beyond reasonable doubt that in the above said period at Sakleshpur in furtherance of the common intention of 6 accused Nos.1 and 2 forged a T.C. Obtained by accused No.2 intending that it shall be used of the cheating and thereby both the accused have committed the offences punishable under Sections 468 read with 34 of IPC?
6. Whether the prosecution has proved beyond reasonable doubt that in the above said period and place in furtherance of common intention of accused No.1 and 2 in Sakleshpur accused No.2 fraudulently used as genuine the SSLC marks card and TC which accused No.2 knew at the time she used it to be forged documents and thereby both the accused have committed offences punishable under Section 471 read with 34 of IPC?"
3. The court below has answered all the points in the affirmative and convicted the accused to undergo rigorous imprisonment for a period of two years for offences punishable under Section 419 read with Section 34 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC' for brevity); to undergo rigorous imprisonment for a period of one year for offences punishable under Sections 420 read with Section 34 IPC; to undergo rigorous imprisonment for a period 7 of one year for offences punishable under Section 465 read with Section 34 IPC; to undergo rigorous imprisonment for a period of two years for offences punishable under Section 466 read with Section 34 IPC; to undergo rigorous imprisonment for a period of two years for offences punishable under Section 468 read with Section 34 IPC and to undergo rigorous imprisonment for a period of one year for offences punishable under Section 471 read with 34 IPC. The same having been carried in appeal, the appellate court had affirmed the punishment imposed. It is that which is under challenge in the present petition.
The petitioner is accused no.1. Accused no.2 is not before this court.
4. The learned counsel for the petitioner would straight away point out from the record that the date of the complaint and the admitted date on which the petitioner is said to have obtained the original marks card of the complainant is 13 years apart. This itself is a circumstance, which ought to have been viewed with circumspection in holding that there was 8 criminal intention on the part of the petitioner and there was complicity between accused no.1 and accused no.2. First and foremost, there was dispute as to the relationship of husband and wife, as between accused no.1 and accused no.2. Accused no.2 is ambiguously known as Evelin, when the petitioner is actually married to one Gangamma. Further it is pointed out that even according to the complainant, the original marks card had been handed over by her father to accused no.1. Therefore, the charges framed against accused nos.1 and 2 jointly alleging offences punishable under the various sections of the Indian Penal Code are misconceived. It could not held that unless there was material to establish that there was total complicity between the accused and there was criminal intention on the part of accused no.1, that acts attributed to accused no.2 can also be extended to the present petitioner accused no.1. In the absence of any such direct relationship, whereby there was a material to disclose that the present petitioner was instrumental in carrying out the further acts, such as the marks card having been utilised by accused no.1, to 9 apply for a job while impersonating the complainant and after having secured such employment, to have further forged an affidavit in the name of the complainant and to have utilised it for securing a duplicate Transfer Certificate and etc., are all acts attributed to accused no.2, where there is no role whatsoever alleged as against accused no.1. The mere vague allegation that accused nos.1 and 2 have jointly perpetrated such acts cannot be demonstrated with reference to oral and documentary evidence as produced, in that, apart from the allegation that the marks card had been handed over to accused no.1, there is no further allegation that it has been misused by accused no.1 through the medium of accused no.2 and there is no evidence of any benefit having been derived by accused no.1 in this process. The further circumstance that PW.3, in her evidence has stated before the court that even according to her opinion, accused nos.1 and 2 were living together during the year 1980 but subsequent to accused no.2 having obtained employment on the basis of the marks card to her knowledge, they were not living together is a circumstance which would 10 absolve the petitioner of any mischief and therefore this aspect of the matter has been completely glossed over by the courts below which have proceeded on the basis that there was a criminal intention and a total complicity between the accused through out the period of over 13 years, which according to the complainant, the acts of omission and commission have been spread over. In this light of the matter, even if it could be accepted that the petitioner had received the marks card belonging to the complainant, the same having been misused by accused no.1 is not forthcoming from the evidence on record. If it is only accused no.2, who may have committed any acts, which are capable of being characterised as offences punishable under the various section that are invoked. It is in this regard that the learned counsel would take this court through the court in greater detail to demonstrate the sequence of events and the fact that the prosecution has not made out a case beyond all reasonable doubt of the petitioner being involved in the commission of the offences punishable under the various sections that have been invoked and would seek 11 that the conviction insofar as the present petitioner is concerned be set at naught.
5. On the other hand, the learned Government Pleader would point out that there is categorical admission by the petitioner himself that the marks card had been handed over to him by the father of the complainant. If this circumstance is accepted, then the criminal intention and the complicity between the petitioner and accused no.2 follows as a matter of course as it is only with reference to the circumstance that such intention and complicity can be established. In this regard the prosecution has certainly discharged the burden of proving the case of the prosecution beyond all reasonable doubt as it is not in serious dispute that accused no.2 had impersonated the complainant and had secured employment and further forged an affidavit of the complainant and had thus sought to complete her criminal acts by misusing the marks card, which had been procured through the medium of accused no.1. Therefore, it cannot be said that the prosecution has not proved the case beyond all reasonable doubt insofar as the petitioner is 12 concerned and he would submit that there is no warrant for interference as there are concurrent findings of fact by both the courts below and since the counsel for the petitioner is not in a position to demonstrate any perversity or want of material, on the basis of which, the courts have arrived at findings, there is no warrant for interference by this court in revision and seeks dismissal of the petition.
6. In the above background, having due regard to the charges, which are commonly filed against both the accused, the burden is on the prosecution to establish its case beyond all reasonable doubt. Insofar as the charges are concerned, going by the facts and circumstances, as rightly pointed out by the learned counsel for the petitioner, the only fault that could be pointed out against the petitioner, is the fact that he had received the original marks card from the father of the complainant, which in itself, was not an illegal action. The further circumstance that he had not returned the marks card over the years was not made a complaint of by the complainant or her father at any point of time. Thereafter, the said marks 13 card having come into the possession of accused no.2, it cannot be said that it was at the instance of accused no.1 that she had misused the same for her benefit. In the absence of any material evidence to establish this connection between accused no.1 and accused no.2 in the face of an admission by the complainant herself that the accused were not living together at the time when accused no.2 had secured employment on the basis of such marks card, would further fortify the case of the petitioner that there was no nexus as between the accused insofar as the misuse of the marks card is concerned. The further acts of forgery and misuse of the affidavit of the complainant was purely an act committed by accused no.2 and there is no material evidence to indicate that it was at the instance or with the assistance of accused no.1, that such acts were committed. In which event, all the charges being made jointly against the petitioner and accused no.2 are misleading and result in a miscarriage of justice. It was incumbent on the prosecution to have established the criminal offence and the complicity at all points of time, if their acts are 14 to be linked together spread over a period of over 13 years, which is the period over which the acts of omission and commission are said to be spread over as per the complaint.
7. Therefore, from an overall view of the record, it cannot be said that the prosecution had established its case beyond all reasonable doubt insofar as the petitioner is concerned and hence, he would have the benefit of doubt.
Accordingly, the petition is allowed in part. The sentence of conviction insofar as the present petitioner is concerned, is set aside. The sentence of conviction imposed in respect of accused no.2 is however not disturbed. The bail bonds stand cancelled and the fine amount shall be refunded to the petitioner.
Sd/-
JUDGE nv