Delhi District Court
State vs . : Parvaiz Ahmed Matto on 2 March, 2022
IN THE COURT OF RISHABH KAPOOR:
METROPOLITAN MAGISTRATE - 03 (CENTRAL)
TIS HAZARI COURTS: DELHI
State Vs. : Parvaiz Ahmed Matto
FIR No : 171/2002
U/s : 420/468/471 IPC
P.S. : I.P. Estate
JUDGMENT:
1. Criminal Case No. : 292692/16
2. Date of commission of offense : 10.08.2000
3. Date of institution of the case : 24.10.2005
4. Name of the complainant : State
5. Name of accused, parentage & : Parvaiz Ahmed Matto S/o Sh. Abdul Rashid
Matto
6. Offense complained or proved : 420/468/471 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 02.03.2022
9. Final order : Acquitted
10. Date of final order : 02.03.2022
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1. The accused is facing trial for offences u/s 420/468/471 IPC. The genesis of the prosecution story is that upon the complaint received from the Medical Council of India (hereinafter referred to as MCI), the criminal law was set into motion vide registration of the present case FIR against accused. The allegations levelled by prosecution are that the accused had submitted the copy of 10+2 forged marks sheet of Jammu Kashmir State Board of School Education to MCI for getting the registration as a Doctor from MCI. Thereafter, the investigation of the case began and after completion same, the present charge-sheet for trail of accused for offences u/s 420/468/471 IPC was submitted in Court.
2. After taking cognizance of the offences, the accused was summoned and upon procuring his presence through instrumentality of Court, the case proceeded further. The Ld. Predecessor Court vide its order dated 07.11.2006 had framed the charges for offences u/s 420/468/471 IPC against the accused. Thereafter, in order to establish guilt of the accused, prosecution examined as many as 12 witnesses. After the closure of prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded, wherein all the incriminating circumstances were put to accused. The accused did not lead any evidence in defence.
3. In brief the testimonies of material prosecution witnesses are as under:
PW-1, HC Ashok Kumar is a formal witness who deposed of having registered FIR Ex.PW1/A. The rukka is proved as Ex.PW1/B. PW-2 Sh. Bhagwan Das is the Administrative Officer From MCI Dwarka. He identified the signatures of Doctor A.S. Naiyyar at point A on complaint EX. PW-2/A. He further deposed that on 02.08.2005, he was working as Section Officer in the registration section, MCI and on that day he had given two docu- ments i.e. one original office copy of letter no.201 (32)/2000/Regn./34318 dated 19.02.2001 of Sh. A.S. Rahi Dy. Secretary addressed to the candidate re- garding issuance of provisional registration certificate (Ex.P-1) and original of-2/15
fice copy of provisional registration certificate no. 15578 dated 12.02.2001 is- sued in the name of accused Parvaiz Ahmed (Ex.P-2). He also deposed of hav- ing given the copy of regulation of MCI (Mark-Y (colly.)) to the IO. In his cross examination, he could not depose about the date of authorization given in his favour by the Dy. Secretary, MCI for deposing in Court and admitted that said authorization is not on case record. He also admitted that the complaint Ex.PW2/A was not prepared in his presence nor he is having any knowledge regarding the contents thereof. He also admitted of having no personal knowl- edge regarding the present case and also that he has not personally verified any of the documents of accused pertaining to the present case. He also admitted of having no knowledge regarding letter Ex.P-1 and also affirmed that neither he is the author nor the issuer of same. He also feigned as to whether the medical certificate was not issued to accused by the MCI.
PW-3 Sh. Lakhan Singh is the Assistant from MCI. He deposed of having joined the investigation of the present case and pursuant to the request made by IO, he had handed over the documents i.e. original application form of accused Ex.P-1, original receipt no. 8017 of Rs.500/- Ex.P-2, original marksheet of higher secondary Part-II examination Ex.P-3, attested copy of mark sheet Ex.P-4, attested copy of character certificate of accused Ex.P-5, letter dated 22.08.2001 Ex.P-6, attested copy of mark sheet of secondary school examina-
tion Ex.P-7, attested photocopy of award of excellence certificate Ex.P-8 and letter dated 31.07.2001 Ex.P-9 to IO and same were seized by him vide seizure memo Ex.PW3/A. In his cross examination, he admitted there is no document on record to show that the abovementioned documents were given on behalf of MCI to the IO pursuant to any written request made by him. He further admit- ted that there is a relaxation of marks in 10+2 for the candidates belonging to OBC and SC/ST as compared to the General Category. For General Category, 3/15 the marks required is 50% and above whereas, for other categories i.e. OBC and SC/ST, it is above 40%. He feigned ignorance as to whether there are crim- inal complaints filed against Dr. A.S. Naiyyar for corruption or that there was a highlighted scam pertaining to admission and registration in MCI between year 2000 to 2006 and also that various false FIRs have been lodged against many students at the behest of MCI. He further admitted that in the application form EX P-1, there is no mention of marks obtained by the accused. He also admit- ted that in application form Ex.P-1, there also does not exists any mention of the documents submitted by the applicant/accused. He could not state as to whether the original mark sheet Ex.P-3 contains any signature or the same has been forged and fabricated by the accused as alleged. He also admitted that there is no document on record or that MCI has any document to show that EX P-3 has been submitted by the accused. He could not state as to whether the ac- cused has not submitted any forged or fabricated documents or that he has been falsely implicated in the present case.
PW-4 Sh. Basharat Ahmed is the Retired Joint Secretary of State Board of School Education J&K. He deposed that on 18.03.2005, he received letter Ex.PW4/A from IO/SI Mahender Singh for seeking re-verification of the report Ex.P-6 pursuant to which, reply Ex.PW4/B was given by him confirming that the report Ex.P-6 was proved as per the records. He further deposed that as per the contents of report Ex.P-6, the certificate in question was found to be fake and forged. He further deposed from record that as per the record, accused Par- vaiz Ahmed Matto passed with second division in 10+2 and secured 290 marks. The said record is Ex.PW4/C. In his cross examination, he admitted that letter dated 22.08.2001 EX P-6 was neither issued by him nor in his tenure and that he does not have the knowledge of the same. He further admitted that he had only received letter Ex.PW4/B containing the case number but did not re-
4/15ceive the documents accompanying it. He denied of having sent the confirma- tion at the behest of IO and without conducting the confirmation from records. He further admitted that the certificates issued by the board are of particular nature, printed on a particular paper by a recognized printing press, which is dealing with confidential matters, therefore cannot be forged. He also admitted that marks sheet is different from marks certificate and that the report EX P-6 states about marks certificate. He volunteered that the certificate does not con- tain marks, but marks sheet indicates marks subject wise.
PW-5 HC Ram Kumar has deposed that he joined the investigation with the IO on 05.10.2004. He further deposed that the accused had produced the photo- copies of the documents to the IO which were seized by him vide seizure memo Ex.PW5/A and after the arrest of accused, arrest memo Ex.PW5/B and personal search memo Ex.PW5/C, were prepared. He further deposed that the accused was also produced before the concerned Court and after taking the per- mission of the Court, specimen signatures and handwriting of the accused were obtained by the IO on 10 papers sheets which are Ex.PW5/D (colly). In his cross examination, he has admitted that no other documents except Mark A to D which are photocopies, were seized by IO.
PW-6 SI Heera Singh deposed that on 05.10.2011, he had joined investigation with IO and PW HC Ram Kumar. He further deposed that vide seizure memo Ex. PW-5/A, IO seized the photocopies documents i.e. Higher Secondary Part- II examination marks-sheet of J&K State Board 1993 showing 290/600 marks, Secondary School Examination 1991 marks-sheet of J&K State Board, So- cially and Educationally Backward Class certificate issued by the Tehsildar, Government of J&K, Provisional Registration Certificate dated 12.01.2001, is- sued by MCI. He further deposed that the accused was also produced before the Court of Ld. MM Sh. S.K. Gautam after his arrest and his specimen hand-
5/15writing and signatures were taken by the IO on 10 paper sheets Ex.PW5/D (colly). In his cross examination, this witness admitted that the accused Parvaiz was already present in the office of DIU. He also stated that the accused was called by the IO through a notice to join the investigation but admitted that he had not seen the said notice. He further admitted that no public persons or offi- cials was present at the time of jamatalashi and arrest of the accused. He fur- ther admitted that no originals were sought by IO at the time of seizure of doc- uments from the accused. He further admitted that at the time of obtaining specimen handwriting and signatures of accused, no public person was a wit- ness.
PW-7 ASI Rajkumar has deposed that on 13.12.2004, he was handed over with sealed Pulanda alongwith sample seal paper vide RC Ex.PW7/A and same was deposited by him at GEQD Hyderabad vide acknowledgment letter Ex.PW7/D. PW-8 Retd. ACP Sh. Ganga Sahai deposed of having not conducted any mate- rial investigation in the case.
PW-9 Retired ACP Darshan Singh deposed that on 31.12.2002, HC Rohtash had produced the documents related to the accused and same were taken into possession vide seizure memo. He further deposed that said seizure memo and documents have not been filed alongwith the charge-sheet and the original seizure memo Ex.PW9/A forms the part of police file.
PW-10 Retd. SI Mahender Singh deposed that on 16.03.2005, IO/Inspector Tejpal Singh handed over him a photocopy of marks-sheet of Higher Sec- ondary Part-II 1993 of the accused for verification from the J&K School of Board Education, Srinagar and thereafter, he went to J&K State Board of School Education at Srinagar, met Joint Secretary Sh. Basharat Ahmad who conducted the verification of the said marks-sheet on his request and had in-
6/15formed that same was a forged document and also that the verification infor- mation regarding same was already provided by him to the MCI. In his cross examination, he could not state as to whether IO had filed his departure entry or not nor could he depose as to whether he had made any entries regarding his arrival and departure at the office of Joint Secretary State Education Board J&K. He admitted that he had not seen the original marks-sheet and letter, pho- tocopy of which were handed over to him by IO. He further admitted that he had not verified the original letter sent by the Joint Secretary regarding verifi- cation. He further admitted that in his statement Ex. PW-10/DA, there is men- tion of marks certificate not marks-sheet for verification.
PW-11 Retd. ACP, Tejpal Singh is the IO of the case who had filed the charge- sheet. In his examination in chief, this witness deposed about the proceedings of investigation conducted by him. He further stated of having collected the ex- amination report Ex.PW1/A during the investigation. During his cross exami- nation, this witness admitted that he had filed the copy of rules and regulations of MCI which is marked as Mark Y but he had denied the knowledge of relax- ation in marks for OBC/SC/ST candidates. He further admitted that he did not investigate the case regarding the MBBS degree of accused and also that the document Mark C is confirming the fact that the accused belonged to backward class. He further admitted that in the seizure memo EX. PW-3/A in column 6(iii) pertaining to alleged original mark sheet of Parvaiz Ahmad Matto bearing roll no. 204220, there is no mention of marks obtained in the said mark sheet. This witness was also encountered with the question to the extent that he had not seized or submitted any marks certificate of accused to which he replied that marks sheet itself is the marks certificate. He further admitted that in Ex. PW-5/A, at column 1 pertaining to photocopy of the marks-sheet of the ac- cused having roll no. 204220, the marks obtained is 290 out of total 600 marks.
7/15He also admitted that no public witness was present when he took specimen handwriting and signatures of the accused. He stated that the specimen hand- writing and signatures of accused were taken in court room. He also admitted that he did not send the marks-sheet Ex. P-3 to CFSL. He also admitted that Ex.P-3 which is a questioned document, has cut in different places by a sharp object and also have cutting by red pen on the entire document. He however could not state as to who has put the cuttings on the said document and has rather stated that the same was not done in his presence. He could not state about the documents to show the verification about the fact as to who had done the cutting on Ex.P-3 and has rather stated that documents Ex.PW4/B and Ex.P-6 mention the said facts but on being confronted with the said documents, he admitted that same does not find any mention of the factum of cutting on the impugned marksheet or about the person who had done the same. He fur- ther admitted that there is no document on the record specifying that the cut- ting aforesaid was made by the board itself. He also deposed that he met Dr. A.S. Nayyar and had recorded his statement in the present case. He further de- posed that he was not aware that there are many cases and FIRs filed against Dr. A.S. Nayyar pertaining to irregularities committed in MCI including the pe- riod of the present case and that he is absconding. He further admitted that at Point A to A on Ex. P-1 (application for registration of Indian National u/s 13 (3) of Indian Medical Council), there is an addition in handwriting of the words "ALONG WITH ORIGINAL. He further deposed that he did not conduct any investigation as to who had incorporated the aforesaid word on the application form stating that same was not the matter of investigation in the present case. He could not state as to whether he has the original documents, the photocopies of which were seized by him vide seizure memo Ex.PW5/A nor he could state as to whether he has seized any original documents or not. He also admitted that the document Mark A mentioned in serial no. 1 of Ex. PW5/A is not the 8/15 photocopy of Ex.P3. He deposed that application form Ex.P-1 find mention of impugned marks-sheet Ex.P-3 as its enclosure at column no.5 and in the note of form at Para-1 (e).
PW-12 SI Anupama is a formal witness who deposed of having sent a notice u/s 160 Cr.P.C. to the accused for joining the investigation.
This is the entire evidence led by the prosecution.
4. The case of the prosecution is that on 10.08.2000, the accused had fraudulently used the forged 10+2 marksheet of J & K State Board of School Education purportedly issued by said board, knowingly the same to be forged and thereby induced MCI to issue registration certificate in favour of the accused.
5. Ld. APP for the State has contended that the prosecution has proved the guilt of the accused beyond all reasonable doubts as it has been established through the testimonies of the prosecution witnesses that the accused has fraudulently used the forged 10+2 marksheet knowingly the same to be a forged document and had induced the MCI to issue registration certificate in his favour with an intent to cause wrongful loss to MCI
6. Per contra, Ld. Defence counsel has contended that the prosecution has failed to establish the guilt of the accused as even the genesis of the prosecution story has remained unproved for the reason that the complainant Dr. A.S. Nayyar never stepped into witness box for proving the complaint Ex.PW2/A. It has been also contended on behalf of the accused that even the author of the verification report Ex.P-6 was not examined as a witness by the prosecution so the contents of said document cannot be relied upon to hold the accused liable for the alleged offences. It is also contended that the alleged verification report pertains to the marks certificate and not the marks- sheet of the accused and there is no evidence on record to show which marks certificate of accused has been verified as the original marks-sheet of the accused 9/15 mention that he had obtained 290 marks out of 600 marks. It is further argued that the fact as who had made cut mark on the impugned marks-sheet Ex.P-3 has remained unexplained and the prosecution has also failed to bring any evidence to establish that the accused had submitted the same with MCI alongwith the application form. It is further argued that the impugned marks-sheet cannot be said to be a document which has been fabricated by or at the instance of accused as same was never sent to FSL for comparison with the handwriting/signatures of the accused. It has also been argued that the accused belonged to the backward class of J & K and therefore, he was eligible for admission in professional course even with 40% marks in 10+2 and he having obtained 49% marks, was not required to prepare or rely upon any fabricated documents to secure the admission. It is also argued that the MBBS degree of accused is not in question in the present case and he having obtained the said degree from the Daghestan State Medical Academy University on 20.06.2000 was even otherwise also eligible for registration with MCI, therefore, he was not required to indulge in the alleged offences.
7. Now adverting ourselves come to the merits of the contentions advanced by the prosecution and defence, respectively.
8. It is worthwhile to mention that complainant Dr. A.S. Nayyar never stepped into witness box to establish the contents of his complaint and rather PW-2 Bhagwan Das had deposed on his behalf. Said witness had though identified the signatures of Dr. A.S.Nayyar on the complaint Ex.PW2/A but admitted of having no knowledge about the contents thereof. Therefore, the contents of the complainant which is the very basis of the prosecution story are not proved in the present case.
9. Even otherwise also, from the testimony of PW-2 Bhagwan Das, it also surfaces that he is unaware as to whether the medical certificate was issued in favour of accused by the MCI or not. This points that even causing of any wrongful loss to MCI due to the alleged act of the accused, has not been clearly established by the prosecution. Causing of wrongful loss is an essential ingredient of offence of cheating 10/15 punishable section 420 IPC. It is also pertinent to point out the fact that the evidences led by the prosecution have revealed that the verification report Ex.P-6 was issued by Dr. Nazir Shah Joint Secretary J & K Board of School Education but said person also failed to step into the witness box for proving the contents of said report, therefore, said document cannot be relied upon to bring home the guilt of the accused. It has also come on record through the testimony of PW-4 Basharat Ahmed that the marks certificate is distinct from the marks-sheet as the former does not contains the marks obtained by a candidate and also that as per the record of the Board, accused had obtained 290 marks out of 600 marks in 10+2 examination, therefore, it remained unexplained as to which of the marks certificate pertaining to the accused was verified by the board pursuant to the request of MCI. It is also evident from record that the marks-sheet of accused was never sent for verification by the MCI nor report Ex.P-6 find mention regarding verification of the same. The evidences led by the prosecution has also failed to explain as to who had made the cut marks on the various places in impugned document Ex.P-3. Even the version of IO that the author of verification report Ex.P-3 had made said cut marks also remained unsubstantiated as the author of report Ex.P-6 Dr. Nazir Shah had never stepped into the witness box. Even, from the testimony of PW-3 Lakhan Singh, it also surfaces that the application form Ex.P-1 does not find any mention of the marks obtained by the accused nor the documents enclosed alongwith the same. There is also no other evidence to the extent that it was the accused who had submitted the impugned document Ex.P-3 alongwith the application form, therefore, it cannot by any stretch of imagination be said that the said impugned document was used by the accused for securing the registration as a Doctor with the MCI. It is also pertinent to mention that the IO Retd. ACP Tejpal Singh examined as PW-11 could not explain the interpolation on application form Ex.P-1 nor about the reason as to why and by whom same were incorporated. He has rather falsely deposed that Ex.P-1 finds the mention of Ex.P-3 as its enclosure in the column no.5 thereof, which constrains this Court to draw an inference to the extent 11/15 that the investigation of the case was not conducted in a fair and impartial manner, thereby raising serious doubts on the story of prosecution. The allegations to the extent of fabrication of the impugned document Ex.P-3 by the accused also remained unsubstantiated for the simple reason that there is no direct or indirect evidence to the extent that the accused had prepared the said impugned document. The aforesaid document was never sent to FSL for its comparison with signatures or handwriting of accused nor the cuttings on the said document have been explained. Even PW-4 Basharat Ahmed has himself admitted that the forgery of such sort of documents is not possible due to the reason that the certificate issued by the board are of a particular nature printed on a particular paper only by a recognized printing press dealing with the confidential matters. Therefore, in nutshell there does not exists any evidence to the extent of establishing that it was the accused who had forged or fabricated the impugned marks-sheet Ex.P-3. Furthermore, there also appears to be vital contradictions in the testimonies of PW-5, PW-6 and PW-11. PW-5 HC Ram Kumar has stated that the specimen signatures and handwriting of accused Ex.PW5/B were obtained after taking the permission of the Court and same is the version of PW- 6 ASI Heera Singh but conversely, the testimony of PW-11 Retd. ACP Tejpal Singh speaks otherwise. This witness has stated that the IO had obtained the specimen signatures/handwriting of the accused during the investigation without complying with the provisions of section 311A of IPC. In this regard the reliance can be placed on the case titled as Rakesh Kumar Vs. State Crl. A.No.68/2002, wherein Hon'ble High Court of Delhi observed.
Moreover, the alleged specimen signature/handwriting/Thumb/Fingerprint impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the IO without permission from the Court. Facts in the case of Sukhwinder Singh and Ors. Vs. State of Punjab (1994) 3 SCR 1061 were that specimen handwriting of appellant were taken under direction of the Executive Magistrate during investigation when no inquiry or trial was pending in his Court.
12/15The accused person did not raise any objection thereto yet Hon'ble Supreme Court observed that such specimen writing of accused person could not be made use of during the trial and the report of handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with the crime. In the present case, the specimen signature/writing/thumb impressions were obtained during investigation without any permission from Court. Therefore, the case in hand stand on a weaker footing then that of Sukhwinder Singh (supra). Therefore, in view of law laid down by Supreme Court in the case of Sukhwinder Singh (supra) it follows that the specimen/writing/thumb impression/fingerprint impression of the appellant could not be used of during the trial. The report of the handwriting expert/finger print beaureu is thus rendered of no consequence at all and cannot be used to connect appellants with crime.
10. In the light of authority cited above, this court is of the considered view that the whole process of obtaining the specimen handwriting and signatures of accused is improper and illegal as the same has not been obtained with the permission of the Court in terms of Section 311A of Cr.P.C. The IO has not explained reasons of such non- compliance, thereby running the risk of loss to the evidentiary value of the report of handwriting expert. Therefore, no reliance can be placed on the report Ex.PW11/A due to the reason that the specimen signatures/handwriting Ex.PW-5/D (colly) were not obtained in accordance with law.
11. Even assuming the contentions of prosecution to be true and accepting the contention that the a signatures/handwriting of the accused on the application form Ex.P-1 stands established, then also, it cannot be said to be established that the allegedly fabricated marksheet was submitted by the accused alongwith such application form or conversely that same was submitted by the accused with the knowledge or reason to believe that it was a forged document. In this regard, it also becomes pertinent to mention that as per the record, accused had obtained the MD degree from Daghestan State Medical University on 20.06.2000 and as per the 13/15 Judgment of Ho'ble Apex Court, titled as MCI Vs. Indian Doctors from Russia Welfare Association & Ors. 2002 (3) SCC 696, "all students who have completed their degree abroad prior to 15.03.2001 and applied for registration to MCI prior 15.03.2001 shall be dealt with according to the provisions of Act prior to commencement of IMC Amendment Act 2001 subject to the fact that where students who did not meet minimum admission norms of MCI joining the under graduate medical course were admitted to foreign institute recognized by the MCI, this irregularity be condoned.
12. In other words the degree of such students has to be treated as eligible for registration with the MCI.
13. In the present case, it is evident that the accused was having degree from the Russian University prior to the cut-off date i.e. 15.03.2001 and as such his case appears to be covered in the judgment aforesaid. If that be so, it can inferred that by submitting the allegedly fabricated marks-sheet, no wrongful gain could have been accrued in favour of accused, which further makes the contentions of defence qua false implication of accused in present case, probable. Further, the accused has also probablized his defence by establishing the fact that he belonged to backward class of J & K and as per the version of PW-3 Lakhan Singh, there was 10% relaxation in marks for the candidates belonging to said class. For general category, the marks required was 50% and above and for other categories i.e. OBC/SC/ST it is above 40%. It has also surfaced on record that as per the record of the J &K State Board, accused had obtained 290 marks out of 600 marks in 10+2, which comes around 49%, therefore, it can further be inferred that there existed no need on the part of accused to indulge in fabrication of the alleged 10+2 marks-sheet as he was even otherwise also eligible for securing admission in the MBBS degree course on the basis of the actual marks obtained by him.
14/1514. In the light of the discussion made above, as it emerges that there is no incriminating evidence against the accused connecting him with the offences alleged and prosecution has miserably failed to establish beyond all reasonable doubts that on 10.08.2000, the accused had applied for registration with MCI by knowingly submitting the forged 10+2 marksheet of J & K State Board of School Education and thereby induced MCI to issue registration certificate in his favour, therefore, the accused deserves to be acquitted for offfences with which he has been charged.
15. Accordingly, accused is acquitted for offences u/s 420/468/471 IPC.
16. The personal and surety bonds, furnished by the accused at the com- mencement of trial stands cancelled and discharged, respectively. Case property if any, be disposed off after expiration of period to assail this Judgment and in case of appeal, as per the directions of Ld. Appellate Court. Documents, if any be returned to its rightful owner as per rules and endorsement, if any be cancelled. Case file be con- signed to record room after due compliance.
Announced in the open court
on 02nd day of March, 2022 (RISHABH KAPOOR)
MM03(Central),THC,Delhi
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