Karnataka High Court
K L Ramesh vs The State Of Karnataka on 2 November, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2nd DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REVISION PETITION NO.436 OF 2010
BETWEEN:
K L RAMESH
S/O.K L RAJU
AGED ABOUT 54 YEARS
OCC CONTRACTOR
R/O.NARAHARINAGARA,
CHALLAKERE TOWN ... PETITIONER
(By Sri: C.H.JADHAV, SR. ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY CHALLAKERE POLICE
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BANGALORE-560 001. ... RESPONDENT
(By Sri: CHETAN DESAI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S.397
AND 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 6.2.2010 PASSED BY THE ADDL. DISTRICT AND
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S.J., CHITRADURGA IN CRL.A.NO.61/2009, THEREBY
CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 25.5.09/8.6.2009 PASSED BY THE JMFC.,
CHALLAKERE IN C.C.NO.176/2006.
*****
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is convicted for the offences punishable under sections 420, 465 and 468 Indian Penal Code and is sentenced to a fine of Rs.2,000/- for the offence punishable under section 420 Indian Penal Code; simple imprisonment of one year with a fine of Rs.1,000/- for the offence punishable under section 465 Indian Penal Code and simple imprisonment for one year with a fine of Rs.1,000/- for the offence punishable under section 468 Indian Penal Code.
2. The case of the prosecution is that the accused contested for the post of President of Nagaramgere Grama Panchayat. Alongwith the application, he submitted a caste 3 certificate seeking reservation as a member of 'Scheduled Caste'. The Returning Officer rejected the nomination on the ground that the said certificate was seen to have obtained four years earlier to the application. However, it transpired that the caste certificate produced by the petitioner was a fake document. It was not issued by the Tahasildar, who was the competent to issue such a certificate. Hence, the Tahsildhar of Challakere Taluk lodged a report before the respondent police alleging forgery and cheating. Alongwith the report, he produced a xerox copy of the said caste certificate. In the course of the investigation, the original caste certificate was secured and on ascertaining that the signature of the Tahasildar was forged, a charge sheet was laid against the petitioner under sections 465, 468 and 420 Indian Penal Code.
3. During the pendency of the trial, the complainant viz., the then Tahasildar having died, the prosecution examined other material witnesses including the Tahasildar, who issued the said certificate Ex-P3. On considering the said evidence, the 4 learned Magistrate found the accused guilty of the above offences. The appeal preferred by the petitioner also came to be dismissed by a considered order dated 6.2.2010 in Crl.A.No.61 of 2009. Feeling aggrieved by the impugned order of conviction, the accused has preferred the above revision.
4. The learned Senior Counsel Sri. C.H. Jadhav appearing for the petitioner submits that the panch witnesses examined by the prosecution for seizure of the original certificate have turned hostile, as a result, the original certificate Ex-P3 is not proved. The prosecution has also not proved the alleged forgery. The document in question was not examined by any handwriting expert to prove either the forgery or falsification of the record. Even otherwise, it is the submission of the learned counsel that there is no dispute that the petitioner/accused is a member of 'Bhovi' community. The petitioner as well as other family members of the petitioner are holding caste certificates issued by the very same office to the effect that all of them belong to 'Bhovi' community. Therefore, there was no intention on the part 5 of the petitioner either to cheat or to produce a bogus certificate before the authorities. Moreover, the nomination of the petitioner having been rejected, the allegations made against the petitioner do not attract any of the provisions either under sections 420 or 468 Indian Penal Code; therefore, the conviction of the petitioner is wholly illegal and perverse and calls for interference by this Court. The learned counsel also points out that even the complaint was lodged more than 11 months after the rejection of the nomination. All these infirmities vitiate the entire trial and the consequent conviction and therefore he pleads for acquittal of the accused.
5. The learned HCGP however supports the impugned judgment and submits that the very author of the document viz., Tahasildar having denied the signature on the said certificate, no further proof is necessary. It is proved that such a certificate was not issued by the competent authority. Therefore, the impugned judgment and order does not suffer from any error of law and fact warranting interference by this Court. 6
6. I have considered the contentions and have examined the records. In proof of the charges, the prosecution has examined in all 15 witnesses. Amongst them, the material witness is PW-3- the Election Officer, who has stated about the rejection of nomination of the petitioner . However, according to PW-3, he rejected the nomination of the petitioner only for the reason that the said certificate was obtained four years prior to the filing of the nomination. He has nowhere stated in his evidence that the nomination was rejected on the ground of production of forged or fake certificate.
7. PW-10 Tahasildhar has categorically stated before the Court that from the years 1996 to 2000, he was the officiating Tahasildar at Challakere Taluk. He has unequivocally stated that during his tenure, he did not issue the certificate Ex- P3. Further, he has asserted that the signature found at Ex-P3 is not his signature. Thus by examining the Tahasildar, the prosecution has convincingly established that the document produced at Ex-P3 was not issued from the office of the 7 Tahasildar viz., PW-10. In this context, if the complaint Ex-P12 is perused, it goes to show that before lodging the complaint, a preliminary enquiry was conducted and during the said inquiry, it came to light that the petitioner had infact applied for the caste certificate, but the same was not issued to him. Therefore, it stands established that the certificate viz., Ex-P3 produced by the petitioner alongwith his application seeking reservation was a forged document.
8. Though the learned counsel for the petitioner has emphatically submitted that the witnesses who were examined by the prosecution in proof of the seizure have turned hostile, in my view, their hostility to the prosecution case does not any way militate against the case of the prosecution. A copy of the said certificate is seen to have been produced alongwith the complaint. The Investigating Officer has specifically deposed that during the course of the investigation, the document was seized. The original document itself is produced before the Court. No objection appears to have been raised disputing the 8 admissibility of Ex.P3. Therefore, I do not find any substance in the contention urged by the learned counsel on this score.
9. However, the question now remains for consideration is "whether the conviction of the petitioner for the offences punishable under sections 465, 468 and 420 Indian Penal Code is sustainable?." As it is proved by the prosecution that the document in question was forged by the petitioner, in my view, the offence under section 465 Indian Penal Code is squarely made out. However, insofar as ingredients of Sections 420 and 468 Indian Penal Code is concerned, I do not find that the prosecution has been able to establish any of the ingredients of the said sections. In order to make out a case under section 420 Indian Penal Code, the prosecution is required to establish that the accused dishonestly induced a person with a view to deliver any property or to do or omit to do something which he would otherwise not have done or omitted. In the instant case, undisputedly, the nomination was rejected not on the ground of the forgery or falsification of the records, but for the reason that 9 the same was obtained some four years earlier to the date of the nomination. Therefore, there was absolutely no occasion for the Election Officer either to get himself deceived or that by enclosing the said document, the petitioner intended to cheat the authorities. Further, it is not disputed that the petitioner and his family members actually belong to 'Bhovi' community. As such, it cannot be said that the petitioner intended to cheat or deceive the officials with regard to his caste. The only offence committed by the petitioner is in his zeal to secure the benefit of reservation, during the pendency of his application before the Tahsildhar, he has forged the document, which squarely attracts the offence under section 465 Indian Penal Code. For all these reasons, the conviction of the petitioner under sections 468 and 420 Indian Penal Code cannot be sustained. Accordingly, the conviction of the petitioner for the said offences is liable to be set-aside. However, the conviction of the petitioner for the offence punishable under section 465 Indian Penal Code deserves to be maintained.
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10. The learned Senior counsel submits that the petitioner is a senior citizen. He has already faced the prosecution for more than 15 years. The incident is of the year 2002 and therefore he pleads for leniency. Further having regard to the circumstances in which the said offence has taken place, the learned Senior counsel also makes a fervent plea to extend the benefit of The Probation of Offenders Act, 1958.
11. Having regard to the nature of the offence proved against the petitioner, in my view, the benefit of the Probation of Offenders Act, 1958 cannot be extended to the petitioner. However, considering the other facts and circumstances proved in evidence especially the circumstance in which the alleged offence was committed and the petitioner having not derived any benefit from the falsification of the record and the petitioner having faced the prosecution for a long period of more than 15 years, in my view, it would serve the ends of 11 justice, if the petitioner is directed to pay a heavy fine in lieu of the imprisonment for the offence under section 465 of Indian Penal Code.
12. For the foregoing reasons, I proceed to pass the following order:
The petition is allowed-in-part. The conviction of the petitioner for the offences punishable under sections 468 and 420 of Indian Penal Code is set-aside.
The conviction of the petitioner for the offence punishable under section 465 of Indian Penal Code is sustained.
In modification of the sentence awarded by the trial court, the petitioner Sri.K.L. Ramesh is sentenced to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand only) for the offence punishable under section 465 of Indian Penal Code. In default to pay or deposit the fine amount, the 12 petitioner shall undergo simple imprisonment for a period of six months. The petitioner is given four weeks' time to deposit the fine amount before the trial court.
Sd/-
JUDGE *mn/-