Madras High Court
K.Heerachand vs State By The Deputy Chief on 21 November, 2002
Crl.R.C.No.71 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 12.08.2022
Pronounced : 18.08.2022
CORAM:
THE HONOURABLE Mr.JUSTICE SUNDER MOHAN
Crl.R.C.No.71 of 2017
and Crl.M.P.No.2477 of 2020
K.Heerachand ...Petitioner
Vs.
State by the Deputy Chief
Controller of Imports & Exports,
Bangalore ...Respondent
Prayer :Criminal Revision has been filed under Section 397 r/w 401 of the
Code of Criminal Procedure Code, 1973 setaside the conviction and
sentence by E O CC. No. 635 of 1987 dated 21.11.2002, Additional Chief
Metropolitan Magistrate, E O – I, Egmore, Chennai confirmed by the
learned Principal Sessions Judge, Chennai in Crl.A.No.337 of 2002 dated
21.06.2016.
For Petitioner : Mr.Kumarapal R Chopra
For Respondent : Mr.D.Simon
(Central Government Standing Counsel)
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Crl.R.C.No.71 of 2017
ORDER
The revision challenges the Judgement of the learned Principal Sessions Judge, Chennai passed in Crl.A.No. 337 of 2002 dated 21.06.2016 confirming the judgement of the learned Additional Chief Metropolitan Magistrate E O – I, Egmore, Chennai- 600 008, in C.C.No.635 of 1987 dated 21.11.2002.
2.The petitioner was tried along with two others for offences under Sections 120 B r/w 420, 467, 468, 471 r/w 468 and Section 5 (b) of Imports and Exports (Control) Act, 1947 on the complaint given by the respondent herein.
3. The petitioner was convicted for the offence under section 120-B IPC and sentenced to 6 Months RI and for the offences under Sections 419, 420, 467, 468, 471 r/w 468 and 5 (b) of Imports and Exports (Control) Act, 1947 and sentenced to two years RI for each of the offences and to pay a fine of Rs.1000/- and in default to suffer Six Months RI.
4.The case of the prosecution is that petitioner who was arrayed as second accused and others namely first Accused Mr.Mangilal Jain and third Accused Mr.Ugamchand Jain entered into a conspiracy to obtain REP 2/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 Licence (Replenishment) and to create false documents in the name of fictitious companies to claim the benefit under the said licence; that the petitioner and the deceased accused were engaged in the business of export of stainless vessels; that they floated fictitious firms to obtain Registered Exporters Policy Licence (REP Licence) from the Licensing Authority as per the Policy available at the relevant time under the Imports and Exports Act, 1947; that as per the policy, the exporters were entitled to obtain Replenishment of raw materials and components that have gone into the exported products; that such Licence could be used to import specified items or to transfer to persons who need such specified items; that the policy also enabled the licencee to obtain such items from local manufacturers by surrending the Licence to the Licensing Authority and get Release Orders for the said items at international prices; that in such cases, the local manufacturer would be considered as an exporter for the purpose of replenishments; that one Sridhar claiming to be the proprietor of M/s. Darpan Stores having its office at No.912, Bhagwandas Buildings Nazarthpet, Bangalore, applied (Ex.P1 to Ex.P5) and obtained 14 REP Licences authority; that these licences were surrendered to obtain Release Orders in favour of M/s. Reliance Steel Metal Works, M G Road, 3/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 Chikaballapur, Kolar District; that the Joint Chief Controller of Imports and Exports (JCCI & E) had issued Release Orders in favour of M/s. Reliance Steel Metal Works on 03-04-1982 for Rs. 8,92,631/-); that the M/s. Reliance Steel Metal Works applied to Engineering Export Promotion Council (EEPC) for membership by producing fake purchase orders, fake SSI Certificate and fake Financial soundness Certificate from Banks etc; that M/s. namely Darpan Stores and M/s. Reliance Steel Metal works and their proprietors Mr.Sridhar and Mr.Chandrasekar are fictitious persons and that the REP Licences obtained in the names of the fictitious concerns were sold to M/s.Ahmedabad Advance Mill, Limited Bombay, for Rs.2,14,231/- (Rupees Two Lakhs Fourteen Thousand Two Hundred and Thirty One only); that intially the FIR was registered by CBI in R.C.No.6 of 85 based on the report filed by the respondent herein; that thereafter on the report filed by the CBI, the respondent filed the complaint before the trial Court under Section 120 B r/w 420, 467, 468, 471 r/w 468 and under Section 5 (b) of the Imports and Exports Control Act.
5. The prosecution examined 13 witnesses on its side, most of whom were official witnesses and marked 151 documents to prove its case against the accused. The allegations, against the petitioner specifically was 4/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 that he had actively assisted the first accused in creating false documents to claim the benefit under the REP Licence without either making any purchase or sales as required for claiming the benefit under the said licence.
6.In order to establish the charge of conspiracy and the other charges as against the petitioner, the prosecution had relied upon the evidence of P.W.6, P.W.7 and P.W.22, the Hand Writing Expert. The other witnesses speak about the involvement of the other accused especially the first accused Mangilal Jain. As stated earlier, the case of the prosecution is that the accused created fictitious concerns, false bills and claimed benefit under the REP Licence by false representation and by producing fake Bills and Purchase Orders. P.W.6 is the Postman who is said to have delivered certain letters in the address shown for the fictitious concerns. P.W.7 is the land lord of the said premises. It is the case of the prosecution that these two witnesses had seen the petitioner in the premises. During the investigation by the CBI they had allegedly identified the petitioner in a Test Identification parade conducted by the P.W.18, Tahsildar on the request of the CBI. P.W.22 is a Hand writing expert who has given an opinion to the effect that the signature and writings of one Chandrasekar 5/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 found in Exhibits P.2, P.6 P.22, P.23 and P.24 P.25, P.26, P.28, P.81 and P.111 were that of the petitioner.
7.The Courts below convicted the petitioner on the basis of the evidence of P.W.6, P.W.7 and P.W.22. The learned Session Judge, held that the trial Court had not only relied upon the evidence of the Hand writing expert, but found that there were other witnesses who corroborated the evidence of handwriting expert. That apart, the learned Sessions Judge held that merely because P.W.6 and P.W.7, did not identify the petitioner in Court, their evidence cannot be brushed aside.
8.Heard, Mr.Kumarapal R Chopra for the petitioner and Mr.D.Simon (Central Government Standing Counsel) for the respondent.
9. The Revision poses two legal questions:
(a) What is the evidentiary value of the identification of the accused by the witnesses in the Test Identification Parade in the absence of the identification in Court?
(b) Whether the opinion of the Handwriting Expert can be the sole basis for concluding that the accused had created false documents?6/ 18
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10. As regards the first question, it is well settled that the identification of the witness during the Test Identification Parade conducted during investigation is only an aid to the investigation and is not a substantive piece of evidence. Admittedly, the witnesses have not identified the petitioner during their examination in Court. The learned Session Judge records the fact that the witness had not identified the petitioner in Court. However, the learned Judge observed that there was a huge delay in their examination before the court and their omission to identify the accused cannot enure to the benefit of the accused. In our view, the delay in examination of witnesses does not absolve the prosecution from letting in substantive evidence to establish the identity of the accused. P.W.6 and P.W.7 have not identified the petitioner in Court. Hence, their evidence that the petitioner used the premises in which the alleged fictitious Firms were shown to be operating cannot be accepted. The Hon'ble Apex Court in Rajesh vs State of Harayana reported in (2021) 1 SCC 118 summed up the principles relating to Test Identification Parade and the identification in Court. The relevant portions are extracted hereunder:-
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https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 “43. The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinise the precedent from this Court bearing on the subject. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which have emerged from the precedents of this Court can be summarised as follows:
43.1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eyewitness to the crime.
43.2. There is no specific provision either in CrPC or the Evidence Act, 1872 (“the Evidence Act”) which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and 8/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP.
43.3. Identification parades are governed in that context by the provision of Section 162 CrPC.
43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.
43.5. The identification of the accused in court constitutes substantive evidence.
43.6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.
43.7. A TIP may lend corroboration to the identification of the witness in court, if so required.
43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.
43.9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible.
44.These principles have evolved over a period of time and emanate from the following decisions:9/ 18
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1. Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391]
2. Santokh Singh v. Izhar Hussain [(1973) 2 SCC 406 :
1973 SCC (Cri) 828]
3. Malkhansingh v. State of M.P. [(2003) 5 SCC 746 :
2003 SCC (Cri) 1247]
4. Visveswaran v. State [(2003) 6 SCC 73]
5. Munshi Singh Gautam v. State of M.P. [(2005) 9 SCC 631]
6. Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1],
7. Ashwani Kumar and Ors. v. State of Punjab (2015) 6 SCC 308.
8. Mukesh and Ors. v. State for NCT of Delhi and Ors.
AIR 2017 SC 2161.”
10.The next piece of evidence relied upon by the prosecution is the opinion of the expert, P.W.22 to the effect that the signature and writing of one Chandrasekar who is said to be the Authorised representative of the fictitious concern is that of the petitioner. It is well settled that the evidence of the expert is only an opinion evidence and his opinion has to be 10/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 corroborated by independent evidence to prove that the petitioner had signed as the said Chandrasekar. The Courts below held that the evidence of the handwriting expert was corroborated by witnesses such as P.W.6, P.W.7, P.W.18, P.W.21 and P.W.28. P.W.6 and P.W.7 as stated above have not identified the petitioner in Court and hence, their evidence cannot be relied upon. P.W.18 is the Tahsildar who conducted the Identification Parade. His evidence is of no value in the absence of the identification in the Court. P.W.21 is a Commission Agent who dealt with Import and Export Licence and he has deposed that first accused Mangilal Jain bought the Licence issued in the name of M/s.Reliance Steel Metal Works Karnataka for sale. P.W.21 has not said anything about the role of the petitioner. Likewise, P.W.28 is the proprietor of the One Mohan Enterprises which was dealing with purchase and sale of REP Licence and he has deposed to the effect that he had sold REP Licence to the first accused. P.W.28 has not spoken about the petitioner. Thus, we find that there is no corroboration to the opinion of the Hand Writing expert in so far as the role of the petitioner is concerned. Therefore it is highly unsafe to record a conviction only on the basis of the opinion of the Handwriting expert as laid down by the various pronouncements of the Honourable 11/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 Apex Court because of the fallibility of the opinion. In Basheera Begam vs Mohd.Ibrahim case reported in (2020) 11 SCC 174, the Hon'ble Apex Court held as follows:
“184. The appellants have relied on the evidence of PW 34, a handwriting expert, to prove that the accused had taken part in a conspiracy at the Malar Lodge Hotel on 21-6-1990. Evidence of experts is not always conclusive. As observed by this Court in Murari Lal v. State of M.P. [Murari Lal v. State of M.P., (1980) 1 SCC 704 : 1980 SCC (Cri) 330] there is hazard in accepting the opinion of an expert, not because an expert is not reliable as a witness, but because human judgment is fallible. While the science of identification of fingerprints has attained perfection, with practically no risk of an incorrect opinion, the science of identification of handwriting is not so perfect. In this case the evidence of PW 40, Manager of Malar Lodge Hotel contradicts the evidence of PW 34.” In Murari Lal vs State of Madya pradesh reported in (1980) 1 SCC 704, the Hon'ble Apex Court held as follows:12/ 18
https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 “11.We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion-evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.”
11. The evidence let in by the prosecution leads to a grave suspicion about role of the petitioner and other accused in the conspiracy and the other offences charged. However, we may reiterate that suspicion howsoever, high cannot take the place of proof to convict a person. The Hon'ble Apex Court in Basheera Begam's case (cited supra) has reiterated 13/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 the said principle which is extracted hereunder:
“186. It is well settled that under the criminal jurisprudence prevalent in this country an accused is presumed innocent, unless proved guilty beyond all reasonable doubt. As held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] , “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” For conviction on the basis of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should fully be established. The circumstances should be conclusive. The circumstances established should definitely point to the guilt of the accused, and not be explainable on any other hypothesis. The circumstances should exclude any other possible hypothesis except the one to be proved.
187. In Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] the Supreme Court held that where there is no eyewitness to the occurrence and the entire case is based upon circumstantial evidence, the normal principle is that the circumstances from 14/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 which an inference of guilt is sought to be drawn must be cogently and firmly established; these circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused; the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that in all human probability the crime was committed by the accused and they should be incapable of any explanation or of any hypothesis other than or inconsistent with the guilt of the accused. The same view was reiterated in Bablu v. State of Rajasthan [Bablu v. State of Rajasthan, (2006) 13 SCC 116 : (2007) 2 SCC (Cri) 590] and in Vijay Shankar v. State of Haryana [Vijay Shankar v. State of Haryana, (2015) 12 SCC 644 : (2016) 1 SCC (Cri) 151] . The judgment in Praful Sudhakar Parab v. State of Maharashtra [Praful Sudhakar Parab v. State of Maharashtra, (2016) 12 SCC 783 : (2016) 4 SCC (Cri) 116] cited by Mr Tulsi was rendered in the particular facts and circumstances of the case where this Court found that the High Court had, after elaborately considering all the evidence on record, rightly affirmed [Praful Sudhakar Parab v. State of Maharashtra, 2006 SCC OnLine Bom 1468] the conviction.
188. In Satish Nirankari v. State of Rajasthan [Satish Nirankari v. State of Rajasthan, (2017) 8 SCC 497 : (2017) 4 SCC (Cri) 24] , this Court reiterated that criminal cases cannot be decided on the basis of hypothesis. It is for the prosecution to prove the guilt of the accused beyond 15/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 reasonable doubt. It is for the prosecution to prove all circumstances which leave no doubt of the guilt of the accused. The chain of circumstances must be complete and must clearly point to the guilt of the accused. The chain cannot get broken in between.
189. It is well settled, suspicion however strong cannot substitute proof beyond reasonable doubt. Enmity as a result of property related disputes may give rise to suspicion.
However, conviction can never be based on suspicion unless the prosecution clearly proves circumstances conclusively and all circumstances proved should only point to the guilt of the accused. Possibility of any conclusion other than the conclusion of guilt of the accused would vitiate a conviction.”
12.Thus, we find that the prosecution has not conclusively established that the petitioner is guilty of the offences charged. As we have elaborated earlier, P.W.6 and P.W.7's evidence is of no avail to the prosecution. The handwriting expert P.W.22's evidence is the only evidence available to connect the petitioner to the false documents created for the purpose of obtaining the benefit under REP Licence. It is highly unsafe to record a conviction with the available evidence in the facts and circumstance of the case.
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13.We are therefore of the view, that the Courts below had not considered these vital aspects in the appreciation of evidence and hence their findings are liable to be set aside.
14. In the result, this Criminal Revision is allowed and the Judgement of the Principal Sessions Judge, Chennai dated 21.06.2016 made in C.A.No.337 of 2002 is hereby set aside and the petitioner is set at liberty. The bail bond if any executed by the petitioner/accused shall stand cancelled. Consequently, the connected miscellaneous petition is closed.
18.08.2022 Index:Yes/No Web:Yes/No Speaking/Non Speaking Order dk To
1. Principal Sessions Judge, Chennai
2. Additional Chief Metropolitan Magistrate, E O – I, Egmore. 17/ 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.71 of 2017 SUNDER MOHAN,J.
dk Pre-delivery Order made in Crl.R.C.No.71 of 2017 and Crl.M.P.No.2477 of 2020 18.08.2022 18/ 18 https://www.mhc.tn.gov.in/judis