Orissa High Court
K.U. Rao Dora vs Republic Of India on 15 December, 2016
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
Criminal Revision NO. 366 of 1998
From the judgment and order dated 20.12.1997 passed by the
Addl. Chief Judicial Magistrate, Bhubaneswar in S.P.E. Case
No.24 of 1989 and the judgment and order dated 30.07.1998
passed by the Sessions Judge, Khurda at Bhubaneswar in
Criminal Appeal No.01 of 1998.
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K.U. Rao Dora ......... Petitioner
-Versus-
Republic of India ......... Opp. party
For Petitioner: - Mr. Sampad Ku. Subudhi
For Opp. party: - Mr. Anup Kumar Bose
Asst. Solicitor General
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 15.12.2016
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S. K. Sahoo, J.The petitioner K.U. Rao Dora faced trial in the Court of learned Additional Chief Judicial Magistrate, Bhubaneswar for offence punishable under section 420 of the Indian Penal Code in S.P.E. Case No.24 of 1989 on the accusations that during the year 1977-78 with an intention to cheat the Food Corporation of India, he submitted fake information with regard to his date of 2 birth i.e. 25.05.1948 instead of 25.05.1940 to the Selection Committee for the post of Chief Labour Inspector in Food Corporation of India and thereby induced the authority to select him for the post of Chief Labour Inspector.
The learned Trial Court vide impugned judgment and order dated 20.12.1997 found the petitioner guilty under section 420 of the Indian Penal Code and sentenced him to undergo R.I. for two and half years and to pay a fine of Rs.2,000/- (rupees two thousand), in default, to undergo R.I. for fifteen days more.
The petitioner preferred an appeal in the Court of Session which was heard by learned Sessions Judge, Khurda, Bhubaneswar in Criminal Appeal No.01 of 1998 who vide impugned judgment and order dated 30.07.1998 while upholding the impugned judgment and order of conviction under section 420 of the Indian Penal Code, reduced the substantive sentence to one year and the sentence of fine was reduced to fine of Rs.1,000/- (rupees one thousand) and in default of payment of fine, to undergo rigorous imprisonment for fifteen days, hence, the revision.
2. The prosecution case, in short, as per the First Information Report lodged by S.P. Pattnaik, Inspector in Charge of Police, C.B.I./S.P.E., Bhubaneswar is that the petitioner got 3 appointment as Chief Labour Inspector in Food Corporation of India, Berhampur on 18.02.1978 by mentioning the date of birth as 25.05.1948 in the application and bio data form though his actual date of birth was 25.05.1940.
It is the further prosecution case as per the First Information Report that as per the recruitment rule of Food Corporation of India, age limit for the post of Chief Labour Inspector was twenty five years and as per the school records i.e. admission register of K.C. Town High School, Berhampur and K.C. Higher Secondary School, Berhampur from where the petitioner passed Class-IV and Secondary School Examination, his date of birth was recorded as 25.05.1940 which was also confirmed by the Board of Secondary Education, Cuttack and as such at the time of appointment, his age was thirty seven years eight months and twenty three days. The petitioner while submitting the application for the post and submitting his bio data mentioned his date of birth as on 25.05.1948 and thereby reduced his age by eight years only to make himself eligible for the appointment. He also secured the appointment as Chief Labour Inspector in the Food Corporation of India by reducing his date of birth even though he was not eligible for the post and thereby cheated the F.C.I. management.
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On the basis of such report dated 30.05.1989, CBI/SPE/Bhubaneswar Case No. RC 24(S)/89 was registered under section 420 of the Indian Penal Code and Mr. S.P. Pattnaik took up investigation of the case.
3. During course of investigation, the Investigating Officer with the help of school, college and university records came to the opinion that the actual date of birth of the petitioner was 25.05.1940 and he was first admitted in K.C. Town High School, Berhampur in Class-IV in the year 1948-49 vide admission No.3493 wherein the date of birth has been mentioned as 25.05.1940 and thereafter he joined K.C. High School, Berhampur and studied there upto 1958 and took his T.C. on 14.12.1989 vide T.C. No.770 and in the T.C. also, the date of birth has been mentioned as 25.05.1940. The petitioner again applied for H.S.C. Examination in the year 1961 as a private candidate from that school and his Roll No. was 11143 and as per the record of Board of Secondary Education, Orissa, his date of birth was 25.05.1940. The petitioner passed in B. Sc. in 1969, M.A. in 1972 and he also studied LL. B. at Lingaraj Law College, Berhampur, Ganjam where he declared his date of birth as 25.05.1945. The Investigating Officer found that instead of mentioning his date of birth as 25.05.1940, the petitioner 5 became eligible for selection for the post of Chief Labour Inspector by submitting false information and also secured his posting as such by falsely inducing the authority knowing fully well that the said information was false.
After completion of investigation, charge sheet was submitted on 23.01.1990 under sections 420 and 471 of the Indian Penal Code.
4. The defence plea of the petitioner was that he had applied for the post of Chief Labour Inspector and he was selected and joined the post but his date of birth is not 25.05.1940 but actual date of birth is 25.05.1948 and basing on his original documents, he was selected for the post.
5. In order to prove its case, the prosecution examined nine witnesses.
P.W.1 P. Durga Patra was the teacher in K.C. High School, Berhampur who produced the transfer certificate book of the school which was marked as Ext.1.
P.W.2 Sachidananda Nayak produced the applications of the petitioner submitted in Lingaraj Law College for admission.
P.W.3 Sarat Chandra Sahu was the Head Master in K.C. Town High School, Berhampur and he proved the admission 6 register of the school which indicates the date of birth of the petitioner as 25.05.1940.
P.W.4 Pratap Kumar Dey was the Assistant Manager, Vigilance, F.C.I. Zonal Office, Cuttack and he stated about the seizure of certain documents by the C.B.I. Investigating Officer including the minutes of Selection Committee.
P.W.5 Maguni Ratha was the Assistant Manager of Food Corporation of India, Berhampur who proved the proforma application signed by the petitioner vide Ext.4.
P.W.6 M.C. Tiwary was the Manager, Vigilance at Zonal Office, Food Corporation of India, Calcutta and he stated about the eligibility criteria for the post of Chief Labour Inspector.
P.W.7 Bijay Mohan Chaterjee was the District Manager, Food Corporation of India, Berhampur and he stated that as per the documents produced by the petitioner, his date of birth was 25.05.1948. He further stated that the petitioner did not submit either the original H.S.C. certificate or its attested true copy.
P.W.8 Artatrana Rout was the Section Officer, Board of Secondary Education, Orissa, Cuttack and he stated that as 7 per the tabulation register, the date of birth of the petitioner was 25.05.1940.
P.W.9 Premananda Parida was the Inspector in C.B.I., Bhubaneswar who was acquainted with the handwritings and signatures of Siba Prasad Pattnaik, Inspector, C.B.I. and proved the charge sheet submitted in the case.
The prosecution exhibited twenty five documents. Ext.1 is the transfer certificate, Ext.2 is the admission register, Ext.3 is the letter no.105/88 dated 08.07.1988, Ext.4 is the proforma application signed by the petitioner, Ext.5 is the minutes of the Committee for selection of candidates, Ext.6 is the offer of appointment of F.C.I., Exts. 7 to 12 are the certificates issued by Khalikote College, Ext.13 is the letter containing certificates, Ext.14 is the attestation form of the petitioner, Ext.15 is the declaration of the petitioner, Ext.16 is the declaration to contribution towards P. Fund, Ext.17 is the medical fitness certificate, Ext.18 is the letter addressed to Asst. Manager, F.C.I. by the Headmaster Khalikote High School, Ext.19 is the letter of the Secretary, Board of Secondary Education Orissa to Sri S.P. Patnaik, Inspector, C.B.I., Ext.20 is the office copy of the letter issued to the petitioner by B.M. Chaterjee in respect of submission of certificate, Ext.21 is the 8 letter to the petitioner by B.M. Chaterjee, Ext.22 is the letter of the petitioner, Ext.23 is the history card of the petitioner, Ext.24 is the entry in respect of the petitioner in Tabulation Register and Ext.25 is the First Information Report.
The defence neither adduced any oral evidence nor any documentary evidence in support of the defence plea.
6. The learned Trial Court after analyzing the oral and documentary evidence on record has been pleased to hold that the plea of the defence that when others have been selected who were more than twenty five years, the selection of the petitioner with the date of birth as 25.05.1948 cannot be questioned is not acceptable. It is further held that the prosecution has proved the actual date of birth of the petitioner as 25.05.1940 and therefore, the petitioner was not entitled to be selected for the post in question in the year 1977. It was further held that when the petitioner applied for the post of Chief Labour Inspector, he made false representation by mentioning his date of birth as 25.05.1948 in his application under Ext.4 which was itself a false one. It is further held that the prosecution has been able to establish that the actual date of birth of the petitioner is 25.05.1940 whereas the defence has failed to establish by any 9 cogent evidence that by mistake '1940' has been mentioned in the matriculation certificate instead of '1948'.
The learned Appellate Court has been pleased to hold that the petitioner has not disputed that as per the record and matriculation certificate, his date of birth is 25.05.1940 and there is absolutely no evidence on record to presume that the actual date of birth is 25.05.1948. The learned Appellate Court further held that in order to get a job to which he was not entitled to being more than twenty five years of age which was the upper age limit to get appointment in the post of Chief Labour Inspector, by giving false statement with regard to the date of birth, the petitioner induced the authority to give the appointment and accordingly, the appeal was dismissed.
7. Mr. Sampad Kumar Subudhi, learned counsel for the petitioner while challenging the impugned judgment and order of conviction contended that the maximum age limit is relaxable and list of selected candidates i.e. Ext.6 clearly reflects that the persons beyond the age of twenty five to thirty years were selected for appointment and therefore, the learned Courts below should not have convicted the petitioner of the charge under section 420 of the Indian Penal Code. The learned counsel further contended that the correct date of birth of the petitioner 10 is 25.05.1948 and it was wrongly mentioned as 25.05.1940 and since the petitioner has already retired from his service on the basis of the date of birth being 25.05.1940, it cannot be said that the department has suffered any wrongful loss.
Learned counsel for the petitioner by filing an affidavit in Court today contended that the petitioner is now aged about seventy six years and twenty six years have passed in the meantime since the date of registration of the First Information Report and the petitioner is now suffering from various old age related ailments and he has been deprived of his retirement benefits including pension and under financial crisis and therefore, considering the physical, mental and financial strain the petitioner has suffered for the last twenty six years, he should not be sent to the jail custody and therefore, this Court may award fine amount in lieu of the substantive sentence of imprisonment.
8. Mr. Anup Kumar Bose, learned Asst. Solicitor General appearing for the Republic of India, on the other hand contended that there is no illegality or infirmity in the concurrent findings by both the Trial Court as well as the Appellate Court and from the oral as well as documentary evidence, it is apparent that the petitioner gave false information before the Selection Committee 11 regarding his date of birth and thereby he was selected for the post of Chief Labour Inspector and therefore, the ingredients of the offence is clearly made out.
9. Considering the submissions made by the respective parties and on perusal of oral as well as documentary evidence adduced by the prosecution, it appears that there is no dispute that as per the advertisement of Food Corporation of India, Berhampur, the petitioner applied for the post of Chief Labour Inspector. As per the form of the application under Ext.4, the petitioner mentioned his date of birth as 25.05.1948 and that the petitioner was selected for the said post as per Ext.5 and he was issued with an offer of appointment under Ext.6 and the petitioner joined his service at F.C.I., Guwahati, Assam on 18.02.1978.
The prosecution has proved through the evidence of P.W.6 that the maximum age limit for the post was twenty five years which has not been disputed by the defence. The prosecution has also proved by documents obtained from school and different registers that the actual date of birth of the petitioner was 25.05.1940 and therefore, the observation of the learned Courts below that at the time of selection for the post of Chief Labour Inspector in Food Corporation of India which was 12 made in the year 1977, the petitioner was not eligible for the selection on the ground of being overage is correct since the documentary evidence proved by the competent authority indicates that the date of birth of the petitioner is 25.05.1940. Therefore, it has been proved that the petitioner falsely mentioned in the relevant application that his date of birth is 25.05.1948. The candidates aged more than 25 years i.e. Sl. No.1 to 12 as per the list under Ext.5 has been appointed for the same post but the remark column reveals that the age of those candidates have been relaxed by mentioning the reasons in the remarks column. The exact cause of relaxation is not ascertained. No such entry has been made in respect of the petitioner in the remark column. Therefore, the contentions raised by the learned counsel for the petitioner claiming parity with those overaged persons are not accepted.
10. Section 420 of the Indian Penal Code prescribes that there must be "cheating" as defined under section 415 of the Indian Penal Code, dishonest inducement to the person deceived 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 and mens rea of the accused 13 at the time of making inducement. Dishonest inducement is proved when a man is induced to believe a thing to be true though it is false and the person practising the deceit knows or believes it to be false. The making of a false representation is one of the ingredients of the offence of cheating under section 420 of the Indian Penal Code. The word 'dishonestly' has been defined under section 24 of the Indian Penal Code which implies a deliberate intention to cause wrongful gain to one person or wrongful loss to another person.
Keeping in view the ingredients of the offence under section 420 of the Indian Penal Code and considering the facts and circumstances of the case, it is apparent that at the time of selection for the post of Chief Labour Inspector, the petitioner presented his date of birth as 25.05.1948 which is apparently false and in view of such false representation, he was considered for selection otherwise on the ground of overage, he would have been taken out of zone of consideration. An ineligible person like the petitioner having full knowledge that the representation regarding his age which he was making was false induced the appointing authority to believe such representation to be true and accordingly, by practising deceit, the petitioner was selected and got appointment and also drew salary which obviously has 14 caused wrongful gain to him. Retirement of the petitioner on the basis of his actual date of birth would not cure the illegality committed by the petitioner at the time of appointment nor would it absolve him of the charge of cheating. Therefore, in my humble view, the ingredients of the offence under section 420 of the Indian Penal Code are clearly established.
11. Coming to the question of sentence, there is no dispute that twenty six years have passed in the meantime since the date of registration of the First Information Report and the petitioner is now aged about 76 years.
The learned counsel for the petitioner has annexed number of medical documents to the affidavit to indicate that the petitioner is suffering from prostate problems, high blood pressure, blood sugar etc. It is mentioned in the affidavit that the petitioner is now staying at Visakhapatnam with his ailing wife and he has been deprived of his retirement benefit including pension because of conviction.
Learned counsel for the petitioner placed reliance in the case of Nakula Sahu and others -Vrs.- State of Orissa reported in AIR 1979 Supreme Court 663, in which after convicting the respondent Nakula Sahu and others under section 409 of the Indian Penal Code, the Hon'ble Supreme Court held 15 that in view of the fact that the respondents are likely to lose their jobs and must have gone through a lot of mental and financial strain during the prolonged proceedings before the Courts lasting for over fourteen years, the substantive sentence of imprisonment was remitted and sentence of fine of Rs.10,000/- was imposed and it was directed that in default of payment of fine, each of the respondents shall undergo imprisonment for a period of six months.
Learned counsel for the petitioner further placed reliance in the case of State of H.P. -Vrs.- Karanvir reported in (2006) 34 Orissa Criminal Reports (SC) 544 wherein after convicting the respondent under section 409 of the Indian Penal Code, it was observed that the interest of justice would be subserved if any substantial punishment is not awarded. Accordingly, fine of Rs.4,000/- was imposed in addition to the amount of Rs.1,000/- which was imposed by the learned Trial Judge and it was directed that in default of the payment of the said amount, the respondent shall undergo simple imprisonment for three months.
The learned counsel for the petitioner further placed reliance in the case of State of Orissa -Vrs.- Mukteswar Panda reported in 1986 (I) Orissa Criminal Reports 137 16 wherein while convicting the respondent under section 409 of the Indian Penal Code, it was held that since the misappropriation was committed ten years back, the imposition of substantive sentence till the rising of the Court and imposition of fine Rs.5,000/- on the respondent would be sufficient and in default to pay the fine, the respondent was directed to suffer rigorous imprisonment for six months.
The learned counsel for the petitioner further placed reliance in the case of Shyam Sunder Gupta and another - Vrs.- State of Utter Pradesh and another reported in 1985 Criminal Law Journal 1674 wherein after convicting the appellant under section 420 of the Indian Penal Code, it was observed that on humanitarian ground, the learned Additional Sessions Judge has mentioned in his judgment the sentence of imprisonment has been limited till the rising of the Court and therefore, there is nothing wrong or illegal about it and the accused persons were directed to pay substantial amount of fine of Rs.1000/- each, in default of the same, he has directed the defaulter to undergo rigorous imprisonment for three months which was held to be perfectly justified.
12. Considering the submissions made by the learned counsel for the petitioner, the affidavit with the supporting 17 medical documents filed by the petitioner, the fact that the petitioner is now aged about 76 years and he is suffering from different old age related ailments and that he has already suffered a lot of physical, mental and financial strain in the last twenty six years from the date of registration of the First Information Report and that he has also been deprived of his retirement benefit including pension, it would not subserve the ends of justice at this stage to send him to jail custody to serve the substantive sentence of imprisonment.
Therefore, while upholding the conviction of the petitioner under section 420 of the Indian Penal Code, I reduce the substantive sentence to "till rising of the Court" and fine amount is enhanced to Rs.20,000/- (twenty thousand only) in total, in default of payment of fine, the petitioner shall suffer simple imprisonment for one month. The fine amount shall be deposited before the learned Trial Court within a month from today and the petitioner shall also appear before the learned Trial Court on any working day within a month and present himself at 10.30 a.m. and he shall suffer the substantive sentence till rising of the Court. If the fine amount is not deposited within the stipulated time as stated above, the default sentence will follow.
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With the aforesaid modification in the sentence, the CRLREV petition stands dismissed.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 15st December, 2016/Pravakar/Sisir