Karnataka High Court
Shiddeswar S/O Irappa Kumbar vs State Of Karnataka on 11 September, 2020
IN THE HIGH COURT OF KARNATAKA AT
DHARWAD BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL REVISION PETITION No.2233/2010
BETWEEN
SHIDDESWAR
S/O IRAPPA KUMBAR
AGE:48 YEARS
R/O KUMBAR ONE, SAVANUR
TQ:SAVANOOR, DIST:HAVERI. ...PETITIONER
(BY SRI CHANDRASHEKAR P PATIL
AND SRI. HEMANTH L HAVARAGI, ADVOCATES)
AND
STATE OF KARNATAKA
REPRESENTED BY PULBIC PROSECUTOR
GADAG, DIST:GADAG
THROUGH STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD. ...RESPONDENT
(BY SRI PRAVEEN K UPPARA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C SEEKING TO SET ASIDE THE
ORDER DATED 29.06.2010, PASSED BY THE LEARNED
PRESIDING OFFICER, FAST TRACK COURT, GADAG, IN
CRL.A.No.19/2004, CONFIRMING THE ORDER OF CONVICTION
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DATED 23.08.2004, PASSED BY THE LEARNED CIVIL JUDGE
(JR.DN.) AND JMFC, LAKSHMESHWAR, IN C.C.No.340/1989,
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 420, 465,
466, 471, 109 R/W 34 OF IPC. IN SO FAR AS THE PETITIONER
IS CONCERNED.
THIS CRIMINAL REVISION PETITION PERTAINS TO
DHARWAD BENCH AND HAVING BEEN HEARD AND RESERVED
ON 07-08-2019 AT KALABURAGI BENCH COMING ON FOR
PRONOUNCEMENT THIS DAY AT PRINCIPAL BENCH,
BENGALURU THROUGH V.C., THE COURT MADE THE
FOLLOWING.
ORDER
This Criminal Revision Petition is directed against the judgment and order dated 29th June 2010 passed in Criminal Appeal No.19/2004 by the Presiding Officer, Fast Track Court, Gadag, whereby, appeal came to be dismissed in part and the judgment dated 23.8.2004 passed in CC No.340/1989 on the file of JMFC Court, Laxmeshwar is confirmed so far as the conviction of accused No.1 is concerned and the judgment in respect of conviction of accused No.2 is set aside. Being aggrieved by the same, petitioner/ accused No.1 has presented this revision petition. 3
2. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their rankings as held by them before the trial court.
3. The substance of the criminal case as stated in Col.No.17 of the final report filed against the accused persons for the offences punishable under Sections 109, 419,420,465,468,471 read with 34 IPC are as under:
Accused No.1 practiced as Lawyer before the Court of Judicial Magistrate First Class and before the Assistant Commissioner, Savanur Sub Dn, Savanur from 1985 to 27-10-1988. Accused No.1 had not passed LL.B degree and thus was not qualified to become an Advocate and thus produced forged and concocted document to represent that he has passed LL.B course and also obtained Sanad from Bar Council.4
4. It is stated that accused No.2 instigated accused No.1 to commit the offence of forgery, cheating and creation of forged document as stated above. It is also stated that there was a classic and common intention between both accused Nos. 1 and 2 to commit such offences. It is also stated that accused No.1 used the certificate of others and produced the same before the court without holding either requisite qualification or entitlement and certificates issued by the competent authority. In the process of the same, accused No.1 even tampered with the records to suit to his name.
5. On taking cognizance, summons was issued to the accused, accused appeared before the court. On hearing the accused before framing the charge, the court framed the charges against the accused for the offences punishable under Sections 109, 5 420,465,468, 471 read with Section 34 IPC. The accused pleaded not guilty and claimed to be tried.
6. Before the trial court, the prosecution has examined 20 witnesses as PWs 1 to 20 and got marked documents as Exs.P1 to P57 and MO.1. After closing the evidence of prosecution, accused persons were examined under Section 313 Cr.P.C. On behalf of accused no oral or documentary evidence is produced.
7. After hearing the arguments on both sides, the learned trial judge held accused No. 1 and 2 guilty for having committed the offence punishable under Sections 420 r/w 34 IPC; 465 r/w 34 IPC; 468 r/w 34 IPC, 471 r/w 34 IPC, 109 r/w 34 IPC and sentenced them as under:
DzÉñÀ "1£Éà DgÉÆæ ¨sÁ.zÀA.¸ÀA.PÀ®A.420 ¸ÀºÀ PÀ®A.34gÀ CrAiÀÄ°è 6 wAUÀ¼À ¸ÁzÁ ¸ÀeÉ C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ ªÀÄvÀÄÛ gÀÆ.500-00 zÀAqÀªÀ£ÀÄß PÀlÖvÀPÀÌzÀÄÝ. MAzÀÄ ªÉÃ¼É zÀAqÀªÀ£ÀÄß PÀlÖzÉà EzÀÝ°è ¥ÀÄ£À: 15 ¢ªÀ¸ÀUÀ¼À ¸ÁzÁ ¸ÀeÉAiÀÄ£ÀÄß C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ.6
1£Éà DgÉÆæ ¨sÁ.zÀA.¸ÀA.PÀ®A.465 ¸ÀºÀ PÀ®A.34gÀ CrAiÀÄ°è 1 wAUÀ¼À ¸ÁzÁ ¸ÀeÉ C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ ªÀÄvÀÄÛ gÀÆ.200-00 zÀAqÀªÀ£ÀÄß vÀÄA§vÀPÀÌzÀÄÝ. zÀAqÀªÀ£ÀÄß PÀlÖ®Ä vÀ¦àzÀ°è 15 ¢ªÀ¸À ¸ÁzÁ ¸ÀeÉAiÀÄ£ÀÄß C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ. 1£Éà DgÉÆæ ¨sÁ.zÀA.¸ÀA.PÀ®A.468 ¸ÀºÀ PÀ®A.34gÀ rAiÀÄ°è 6 wAUÀ¼À ¸ÁzÁ ¸ÀeÉ C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ ªÀÄvÀÄÛ gÀÆ.500-00 zÀAqÀ vÀÄA§vÀPÀÌzÀÄÝ, zÀAqÀ PÀlÖ®Ä vÀ¦àzÀ°è ¥ÀÄ£À: 15 ¢ªÀ¸À ¸ÁzÁ ¸ÀeÉAiÀÄ£ÀÄß C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ. 1£Éà DgÉÆæ ¨sÁ.zÀA.¸ÀA.PÀ®A.471 ¸ÀºÀ PÀ®A.34gÀ CrAiÀÄ°è 1 wAUÀ¼À ¸ÁzÁ ¸ÀeÉ C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ ªÀÄvÀÄÛ gÀÆ.200-00 zÀAqÀ PÀlÖvÀPÀÌzÀÄÝ. vÀ¦àzÀ°è ¥ÀÄ£À: 15 ¢ªÀ¸À ¸ÁzÁ ¸ÀeÉ C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ. 2£Éà DgÉÆæ ¨sÁ.zÀA.¸ÀA.PÀ®A.109 ¸ÀºÀ PÀ®A.34gÀ rAiÀÄ°è 1 ªÀµÀð 2 wAUÀ¼ÀÄ ¸ÁzÁ ¸ÀeÉ C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ ªÀÄvÀÄÛ gÀÆ.1,200-00 zÀAqÀªÀ£ÀÄß PÀlÖvÀPÀÌzÀÄÝ. zÀAqÀªÀ£ÀÄß PÀlÖ®Ä vÀ¦àzÀ°è 2 wAUÀ¼À ¸ÁzÁ ¸ÀeÉAiÀÄ£ÀÄß C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ.
F ªÉÄîÌAqÀ J®è ²PÉë ªÀÄvÀÄÛ zÀAqÀUÀ¼ÀÄ DgÉÆæ 1 ªÀÄvÀÄÛ DgÉÆæ-2 EªÀjUÉ KPÀPÁ®zÀ°è C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ.
DgÉÆævÀgÀÄ §gÉzÀÄPÉÆlÖAvÀ eÁ«ÄãÀÄ ªÀÄÄZÀѽPÉAiÀÄ£ÀÄß gÀzÀÄÝ¥Àr¸À¯ÁVzÉ. DgÉÆæ-1 ªÀÄvÀÄÛ DgÉÆæ-2 EªÀjUÉ wæð£À ¥ÀæwAiÀÄ£ÀÄß GavÀªÁV ¥ÀÆgÉʸÀ®Ä DzÉò¸À¯ÁVzÉ."
8. Being aggrieved by the said judgment and order of the learned trial Judge, accused persons preferred an appeal before the Presiding officer Fast Track Court Gadag in Criminal Appeal No.19/2004.
After having heard the matter, learned appellate Judge dismissed the appeal in part as the judgment 7 of the learned trial judge passed in C.C.No.340/1989 on 23.9.2004 in respect of accused No.1 came to be confirmed and that of accused No.2 was set aside. Being aggrieved by the said judgment of the appellate court, accused No.1 has come in this revision petition.
9. Learned counsel appearing for the accused submits that it was a clear case of benefit of doubt and ought to have acquitted the accused No.1/petitioner. The contradiction and omissions were not considered. The prosecution has not established the guilt of the accused as there is no full proof evidence. So also there is no evidence from forensic science lab. There is no clear check and verification by the Bar Association. The evidence on record never pointed guilt towards the accused/petitioner and petitioner has not committed the offence. 8
10. The learned HCGP for prosecution opposes the grounds urged by learned counsel for petitioner. He would submit that the guilt of the accused stands established by the very document admitted. Further accused has misrepresented before the very adjudicating body and he is not entitled for any leniency. He has cheated the court, public and the very clients.
11. The case of the prosecution is that, accused No.1 without holding LL.B degree and Sanad issued by Bar Council practiced before Judicial Magistrate First Class, Savanur and before the Assistant Commissioner, Savanur, between 1985 to 27-10-1988 and thus cheated the Courts, Advocates and public thereby committed offence punishable under Section 420 IPC.
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12. It is further stated that accused No.1 was instigated by accused No.2 to practice as an advocate knowing fully well that accused No.1 had no L.L.B degree and Sanad to practice as an advocate.
13. Out of the witnesses examined by the prosecution, PW1-S.L.Patil is the then President of Advocate's Bar Association, Savanur. His evidence is, he has worked as President of Bar Association, Savanur, from 1988 to 1992. In the year 1987 Karnataka Bar Council called for the list of Advocates on the file of every Bar Association to register it and for that purpose, it also had called register number of the Sanad and registration date etc. of each and every advocate on the list of advocates of the Association Savanur and all the Advocates being the members of the association furnished the details. However, accused No.1 did not furnish though he was a member of Savanur Bar Association.
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14. Finally, he gave the registration number of his Sanad as 464/85 dated 3/10/1988 and on verification it belonged to one S. Samuel Solomon, Advocate from Bangalore. Then the Association requested Sri. A.N.Solapurkar, the then Judge of Savanur court to verify the register number of the Sanad of accused No.1. Then accused No.1 was called upon to produce the Sanad and he produced the original Sanad bearing No. 464/1980 and on enquiry by the Bar Association with Karnataka Bar Council, it reveal that said Sanad was not a genuine document and it was came know from Bar Council that Sri. N.Tippanna was not the Chairman of Karnataka Bar Council during the year 1980 and that Sri.B.V. Acharya was the Chairman.
But in the original Sanad produced by accused No.1 before the Judge name of Sri. N. Tippanna was shown as Chairman. Accused No.2 father of accused 11 No.1 knowing fully well that accused had not completed LL.B degree nor held valid Sanad started practicing as an Advocate.
15. It is further stated that complaint was given by this witness as per Ex.P1. Ex.P7 is the receipt for having paid the membership fee by accused No.1 to become member of Savanur Bar Association during 1986 to 1988 and the application given by the A1 is produced as Ex.P8. The telegram sent by Bar Council stating that Registration No.464/80 pertains to one Mallapap Shivappa Kumbar, but not of accused No.1 is marked as Ex.P10.
16. The enrolment certificate produced by accused No.1 is marked as Ex.P11. Ex.P13 is the letter written by accused No.1 to the Savanur Judge that he will produce the sanad.
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17. PW4-N.V. Chandanagoudar is an Advocate from Savanur Bar Association practicing at Savanur Bar. He deposes that accused No.1 practiced with him as an Advocate during 1987-88. He speaks about Sanad produced by accused No.1 and later on verification they came to know that the number stated by accused No.1 is 1464/1985 to the Secretary of Savanur Bar Association and on enquiry it belonged to Samuel Solomon, Advocate of Bangalore. He also deposes regarding the Sanad bearing No.8728 produced by the accused No.1 bearing the name of Sri. N. Tippanna regard being had to the fact that Sri. N.Tippanna was not the Chairman of the Karnataka Bar Council during the relevant time.
18. PW5-D.Sannapakeerappa Sannapujara is the another advocate and he has spoken in the lines of PW4.
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19. PW6-Fakeerapa Somappa Konanavara is the Secretary of the Savanur Bar Association during the period from 1984 to 1989. He asserts the practice by accused No.1 as an advocate in the court at Savanur and the Sanad produced by him was not genuine. He also speaks about Ex.P2, ExP5 to 7 and Ex.P94.
20. PW7-Gurupadagouda Gadigeppa Gouda Patil is another Advocate Member of Savanur Bar Association. He practiced at Savanur for 20 years and in 1985 accused No.1 registered his name as member of their Association which is meant for Advocate and later he came to know that Sanad produced by accused No.1 was belonging to an advocate by name Soloman of Bangalore. Accused No.2 also produced the certificate bearing the name of Sri N.Tippanna as the Chairman of Karnataka Bar Council during the relevant time. Regard being had to the fact said Sri. 14 N.Tippanna was not Chairman as Sri.B.V. Acharya was holding the office at that time.
21. PW14-Basavaraj Dwarakaradya Hiremat is the advocate from Dharwad Bar Association and he has been practicing from 1983. He speaks about accused No.1 practicing with him at Savanur and accused No.1 and this witness filed a joint vakalath before Revenue Court presided by the Assistant Commissioner in case bearing No.KLR/SR/4/86.
22. PW19-A.N.Sollapurkar is the judge of Savanur Court and deposes that his tenure at Savanur Court was from June 1987 to May 1991 and accused No.1 was practicing as an Advocate and accused No.1 was working as a clerk of one Mr.R.B.Desai, Advocate. He was wearing the robe prescribed for Advocate. He has filed Vakalath and practicing and vakalath submitted before him is marked as Ex.P21. He also 15 identified the vakalath submitted in OS Nos.34/88,5/88 as Exs.P26 and P28 and in O.S.NO.187/1988 and 235/1987 at Exs.P30 and P32. He also identifies interim applications filed by accused No.1 in O.S.No.235/1987 (Ex.P33); vakalath filed onbehalf fo accused in CC No.626/1987 (Ex.P36); vakalath of accused No.1 in O.S.NO.70/1987 (Ex.P39) and in Crl.Misc.No.1/1988 (Ex.P41).
23. PW8-Veeranagouda Channaveeranagouda Thotada is the litigant who has entrusted case to accused No.1 in OS 187/1888. PW10 similarly is also an litigant who has entrusted the case to accused No.1.
24. PW15-Prakash Basaiah is the Secretary of Karnataka Bar Council between July 1984 to July 1992. He deposes that he gave the details about Sanad 464/1985 that it belonged to one Mr. Samuel 16 Soloman and that Certificate No.8728 produced by A1 belonged to one Hiremath Basavaraj Darukaradhya of Ranebennur.
25. PW17-Dattatreya Manikrao Biradar is the Principal of G.K. Law College from 1978 to 1997. He states that from 1981 to 1988 accused No.1 was the student of G.K. Law college and this witness has given a letter to police as Ex.P52 and one A.M. Bhandari, incharge Principal of Law College has given information to police as per Ex.P53. He deposes that as per Ex.P52 and 53, accused No.1 has failed in the LL.B. Examination.
26. PW18-Puneetha is the Registrar of Karnataka University who deposes that as per the records of accused No.1 in the University, the result of accused No.1 for L.L.B III year course is withheld 17 for want of his result of passing in LL.B. 1st and 2nd year.
27. PWs 2, 3 are panch witnesses. PW-11 is the Sheristedar of Savanur Court. PW12- is the SDA in Savanur Corut. PW13 is SDA in A.C. Office Savanur. These witness have done their official duties. PW16 is the Head Constable of Dharward Town Police who has registered the complaint of PW14.
28. No doubt as learned counsel for accused has raised a point that there is no examination of expert from Karnataka Bar Council and the documents are not subjected to chemical examination.
29. Savanur Bar Association is not the one which possesses thousands of membership. President of Bar Association has spoken in crystal clear words and to the rank of President it is not a herculean task to speak about the Advocate who is the member of 18 the Association during the relevant period i.e. 1985 till 27-10-1988.
30. Advocates PWs 4, 5, 6, 7 and 14 of the Association have endorsed and confirmed the practicing of accused No.1 as the Advocate.
31. The Secretary of the Bar Association, Savanur, PW6 confirms the substance of complaint and the oral evidence of PWs 1,4,5,7, and 14. PW14 confirms regarding practicing of accused No.1 and filing of joint vakalath.
32. The said witnesses confirms that accused No.1 appeared before the Court of Assistant Commissioner, Savanur Sub Dvn. Savanur. The further corroboration is from the relevant source, the Secretary of Karnataka State Bar Council. With these overwhelming evidence, the short of qualification of the accused No.1 from identifying himself as an 19 advocate is established to be false one. The fact when established from all reliable source to both objective and subjective satisfaction of the court, it is not justifiable still to insists for chemical examination and expert analysis and opinion.
33. Insofar as benefit of doubt is concerned, there should exist a series of events or circumstances which points towards the innocence of the accused.
34. Other witnesses are formal witnesses. No substantial or material contradictions are elicited in their cross examination. Accused persons have not come with firm say to claim that accused No.1 is an advocate holding law degree and certificate issued by the competent authority.
35. In the overall circumstances of the case, accused Nos. 1 and 2 are convicted by the trial court on 23.8.2004 in C.C.No.340/1989. However, 20 appellate Court set aside the judgment and sentence in respect of accused No.2. However, it was confirmed against A1. In the further circumstances of the case, A1 is held guilty for having committed the offences punishable under sections 420, 465, 468, 471, 109 read with 34 of lPC. The appeal is preferred by accused Nos.1 and 2 was dismissed in part by the appellate court.
36. The ingredients of the said offences are established by the prosecution beyond reasonable doubt and I do not find the appellate court has committed any error or irregularity or illegality in coming to such a finding.
37. Insofar as A2 is concerned, he is stated to be clerk. Learned trial judge convicted him also holding that the case came under the purview of 21 Sections 34 between accused Nos. 1 and 2 and there is no appeal by the prosecution against accused No.2.
38. Insofar Section 420 IPC is concerned, element of cheating within the purview of Section 420 is with reference to accused No.1 getting the benefit of the status of advocate on false claim. It is necessary to mention that to get the status of the Advocate it is not easy. It requires hard work, efforts and winning the competition of emanation at the apparent level and getting enrolled as an Advocate before the competent authority. Thus, the position of an advocate confers status, thoughts, privileges more particularly, respectable privilege of right to claim audience before the Court of Law. The procedure consists of acquaintance of knowledge, willingness to work hard and the skill of presentation of the case and if a person gets wild card entry by producing fake certificate it is nothing but, he has cheated the 22 society, Court and made wrongful gains in the form of fees which he obtained from litigation.
39. Insofar as Section 463 IPC is concerned, it is making a false document or electronic record in support of any claim of title as defined under said Section punishable under Section 465 IPC. The documents like sanad and certificate produced by accused establish beyond reasonable doubt that accused committed forgery only for the purpose of cheating. As stated above the same falls under Section 468 IPC. Accused used the false document as genuine knowing fully well that they were false.
40. For the aforesaid reasons, the Criminal Revision Petition is allowed in part.
The Judgment passed in CC No.340/1989 on 23.8.2004 by the learned trial Judge convicting the appellant (accused No.1) for the offences punishable under Sections 420,465,468, 471 read with Section 34 23 IPC and confirmed by the appellate judge in Crl.A.No. 19/2004 is hereby confirmed, as such, the appeal in this connection stand dismissed.
Impugned judgment dated 29.6.2010 passed in Criminal appeal No.19/2004 by the appellate Court in respect of sentence imposed by the trial court in CC No.340/1989 on 23.8.2004 against accused No.1 for the offences punishable under Sections 420,465,468, 471 read with section 34 IPC is proportionately set aside for the purpose of modification.
The sentence imposed by the trial court against accused No.1/petitioner for the offences punishable under Sections 420,465,468, 471 read with section 34 IPC in CC No.340/1989 on 23.8.2004 and confirmed by the appellate court in Criminal Appeal No.19/2004 on 29.6.2010 is modified as under:
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Section Sentence Sentence
imposed by the imposed by this
trial court and Court
confirmed by the
appellate court
420 SI for 6 months SI for 01 month
with fine of with fine of
Rs.500/- in default Rs.500/- in default to undergo SI for to undergo SI for 15 days 15 days 465 SI for 01 months Fine of Rs.500/- in with fine of default to undergo Rs.200/- in default SI for 15 days to undergo SI for 15 days 468 SI for 6 months SI for 01 month with fine of with fine of Rs.500/- in default Rs.500/- in default to undergo SI for to undergo SI for 15 days 15 days 471 SI for 01 month Fine of Rs.500/- in with fine of default to undergo Rs.200/- in default SI for 15 days to undergo SI for 15 days All the sentences to run concurrently.
SD JUDGE tsn*