Karnataka High Court
Sri Govindareddy M.R. vs The State Of Karnataka on 26 July, 2017
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26th DAY OF JULY 2017
BEFORE
THE HON'BLE MRS.JUSTICE RATHNAKALA
CRIMINAL REVISION PETITION NO.1063/2010
BETWEEN:
SRI GOVINDAREDDY M.R.
S/O RAMAPPA,
AGED ABOUT 27 YEARS,
R/AT NAYANDAHALLI,
CHINTAMANI TALUK,
... PETITIONER
(By Sri. VEERANNA G TIGADI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP. BY ITS STATE
BY CHINTAMANI TOWN
POLICE, CHINTAMANI TALUK,
CHIKKABALLAPUR DISTRICT
... RESPONDENT
(By Sri.NASRULLA KHAN, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DT.5.6.10 PASSED
BY THE ADHOC S.J. FTC-II, CHINTAMANI IN CRL.A.24/09
CONFIRMING THE JUDGMENT AND ORDER DT.7.7.09 PASSED BY
THE PRL. C.J. (JR.DN.) & JMFC., CHINTAMANI IN C.C.NO.50/07
AND ACQUIT THE ACCUSED/PETITIONER.
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THIS CRIMINAL REVISION PETITION HAVING BEEN
RESERVED ON 12/07/2017 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This revision petition is preferred assailing the judgment of conviction dated 7.7.2009 passed by the Prl. Civil Judge (Jr.Dn.) & JMFC, Chintamani, in C.C.No.50/2007 whereby the revision petitioner is convicted for the offences under Sections 465, 468, 471 and 420 of IPC. The said judgment is upheld in appeal.
2. For further discussion, the parties will be referred to as per their status before the Trial Court.
3. Briefly stated, the accused was charge sheeted by the respondent-Investigating Officer in respect of the offences under Sections 465, 468, 471 and 420 of IPC.
4. The allegation was, the accused applied for I year D.Pharma course in Niveditha College of Pharmacy, Chintamani; though he had not passed II PUC by procuring -3- the marks card pertaining to CW-7, tampered the same by putting his name and signature at the place of name and signature of CW-7 and changed the year of the marks card from 1991 to 1999. The accused was procured and he pleaded not guilty. The Trial Court framed charges for the offences punishable under sections 465, 468, 471 and 420 of IPC. The accused on pleading not guilty, the prosecution examined 10 witnesses and marked 17 documents. Statement of the accused under Section 313 of Cr.P.C was recorded. There was no rebuttal evidence for the defence and after giving its audience, the Trial Court recorded the statement of conviction in respect of the offences stated supra. The appeal preferred thereon is rejected.
5. Learned counsel Sri. Veerana G. Tigadi for the accused assailing the judgments of the courts below submits that the accused had taken the stand of total denial. In that view of the matter, it was obligatory on the prosecution to examine the witness to prove beyond doubt that the application and marks card were submitted by the -4- accused only. The signature of the accused/Ex.P15 was obtained beyond the procedure contemplated under Section 311-A of Cr.P.C. The Investigating Officer could not have obtained the signature of the accused, without an order of the jurisdictional Magistrate.
6. Learned Counsel continues, to bring home the guilt of the accused under Section 420 of IPC, prosecution is required to establish that the accused dishonestly induced anybody to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security. The allegation herein is in respect of tampering a marks card which is not a valuable security and it is not the case of prosecution that he induced anybody to deliver any property in his favour or anyone, thus there cannot be conviction under Section 420 of IPC. In the absence of express order of the registration of section 311-A of IPC, the evidence collected by the Investigating Officer i.e. signature of the accused vitiates -5- entire investigation. The offence of 'Forgery' as contemplated in Section 63 of the IPC is not made out and his conviction under Section 465 if not legal.
7. The learned counsel continues, the conviction under Section 468 of IPC for the offence 'Forgery for the purpose of cheating is also not justified since the very offence of 'cheating' contemplated by 415 of IPC is not to be found in this case. In similar circumstance the Apex Court in the matter Bhausaheb Kalu Patil Vs. State of Maharashtra ((1980) 4 SCC) altered the conviction under Section 471 r/w section 467 to that of under Section 471 and 465 of IPC.
8. Learned counsel continues to submit, in respect of conviction under Section 465 of IPC, the Apex Court has in a similar circumstance set aside the punishment and remanded the matter to the Trial Court to consider for extension of the benefit of Section 6 of Probation of Offenders Act 1958 or under Section 4 of the said Act. It is already 10 years since the incident occurred and the -6- petitioner has paid enough and therefore, he may be acquitted of offences by extending the benefit of doubt.
9. Learned HCGP seeks to sustain the judgments of the courts below and submits that there is unimpeachable evidence on record that the petitioner altered/forged the marks card and utilized the same as his own to get a seat in the college, thus his conviction under the heads of 465, 468, 420 and 471 of IPC is justified.
10. With the above rival submissions, I have gone through the impugned judgments of the courts below so also the evidence placed on record before the Trial Court.
11. In Criminal Appeal No.204 of 1975 in the case of Bhausaheb Kalu Patil Vs. State of Maharashtra (supra), the allegation was, the accused had produced forged certificates to get admission to the Arts and Commerce college. The Apex Court had refused to hold the same as 'valuable security' as defined in section 30 of the IPC. Hence the conviction was altered to Section 471 r/w 465 of -7- IPC and the matter was remanded to the Trial Court after setting aside the sentence to consider for extension of the benefit of Section 4 of the Probation of Offenders Act 1958.
'Valuable security' as defined by Section 30 of the IPC reads thus:
" 30. "Valuable Security" - The words "Valuable Security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right."
12. A marks card with the marks scored by the candidate in an examination may entitle him to apply for a job or a course, but that by itself does not give any legal right for him. Assuming for a moment that the entire allegation of prosecution is true and correct and the marks card not being a valuable security, that further necessitates this Court to trace, whether the element of 'cheating' is -8- made out for an offence under Section 420 or Section 468 of IPC. Cheating is defined by Section 415 of IPC.
13. The Apex Court in the case of V. Y. Jose Vs. State of Gujarath and another reported in 2009(3)SCC 78 has observed in para.14 thus:
" 14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
(i) Deception of a person either by making a false or misleading representation or by other action or omission;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making -9- initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out. "
14. It was nowhere brought on record that because of the forged marks card the accused induced any one to deliver any property to any person or consented that any person shall retain any property and it was not shown that the victim of the incident was deceived to do or omit to do anything which he would not do or omit if he were not so deceived. At the inception itself, the marks card is found to be forged and no such catastrophe did occur in lieu of the said marks card. Thus, the conviction of the accused under Section 420 so also under Section 468 of IPC was without foundation and not justified because 'cheating' being the nucleus of both these provisions, was not proved.
15. Then coming to the conviction under Section 471 of IPC, there is ample material on record that he has used the marks card knowing fully well that it is a forged document and there is no remarks about his conviction
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under the said section. The contention of the revision petitioner is that for not complying with the mandatory provision of section 311-A of Cr.P.C. he cannot be held to have committed the offence. Section 311-A is the enabling provision for the Magistrate to order a person to give specimen signature or hand writing. Nowhere the Code prohibits taking specimen signature of the accused during the course of investigation without the express order of the Magistrate. At the most, obtaining the specimen signature during the course of investigation may be an irregularity which does not fall under Section 461 of Cr.P.C. which would go to vitiate the proceedings.
16. The Trial Court has observed that along with the application, the petitioner had submitted his photo and the court had opportunity to draw inference on the basis of the said photo that it was the accused who submitted the forged document along with his application to the Pharmacy course. Thus, his conviction for the offence of forgery punishable under Section 465 of IPC and using the forged
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document as genuine punishable under Section 471 of IPC is proper and legal.
17. Petitioner is imposed imprisonment of six months with default clause and with fine of Rs.5,000/- in respect of each of the offence under Sections 465 and 471 of IPC. Both these offences are punishable with sentence of either description or by both. It is already more than a decade since the offence occurred. It is rather appropriate to modify the sentence by enhancing the fine amount rather than sending him to prison. Accordingly, the revision petition is allowed in part.
18. The judgment of conviction and sentence recorded by the Trial Court against the revision petitioner in respect of the offences under Sections 420 and 468 of IPC is set aside. He is acquitted of the said charges.
The sentence imposed in respect of the offences under Sections 465 and 471 of IPC is modified.
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The punishment of imprisonment ordered by the Trial Court in respect of these offences is set aside. Fine amount of Rs.500/- ordered in respect of each of these offences, is enhanced to Rs.2,000/-. In default to pay fine amount, he shall undergo imprisonment of three months.
Sd/-
JUDGE Dvr: