Andhra HC (Pre-Telangana)
Smt. Geddam Mounica vs K. Sudarsana Rao And Anr. on 15 July, 1991
Equivalent citations: 1991(2)ALT663
JUDGMENT D.J. Jagannadha Raju, J.
1. This is an appeal by the defacto-complainant against the acquittal of the accused in Criminal Appeal No. 100 of 1987 on the file of the Additional District and Sessions Judge, West Godavari. The present appellant Smt. Geddam Mounica filed a private complaint against the respondent K. Sudarsana Rao for the offences Under Sections 197, 418, 427 and 467 of the Indian Penal Code in the court of the Additional Judicial First Class Magistrate, Tadepalligudem. After following the procedure prescribed by law and after recording the evidence of P. Ws 1 and 2, the court framed charges Under Sections 167 and 427 I.P.C. against the accused. The main allegation against the accused is that the accused altered the date of appointment in the service register of the complainant from 6-9-1976 to 1-7-1977 and he did this taking advantage of the fact that Government issued G.O. 411 dated 23-4-1982 as per which untrained and unqualified teachers appointed on or after 23-4-1977 shall not be continued and they can be ousted. In view of this G.O., the accused resorted to this mischief of altering the date of appointment from 6-9-1976 to 1-7-1977 and as a result of this, he issued orders terminating her appointment and thereby caused mischief and loss. He resorted to forgery overlooking several other official documents which clearly indicate that the complainant was appointed on 6-9-1976.
2. After a very elaborate trial, the Magistrate found that the ingredients of an offence Under Section 167 I.P.C. are not established because the accused is not deemed to be a public servant but, at any rate, an offence Under Section 463 I.P.C. is established and so the accused is liable for punishment Under Section 465 I. P.C. The court accordingly found the accused guilty for an offence Under Section 465 I.P.C. and sentenced him to suffer R.I. for a period of six months and to pay a fine of Rs. 4,000/- in case of default of payment to fine, to undergo S.I. for a period of three months. Out of the fine amount, if paid, Rs. 2,000/- shall be paid to P.W. 1 as compensation.
3. Aggrieved by the conviction and sentence, the accused filed an appeal Crl. Appeal No. 100 of 1987 and the Additional Sessions Judge. West Godavari by judgment dated 31st November, 1988, acquitted the accused. The main reason for the court acquitting the accused is that without a specific charge being framed for an offence Under Section 463 I.P.C. punishable Under Section 465 I.P.C, the court is not entitled to convict the accused for an offence Under Section 465 I.P.C. Having acquitted the accused for an offence Under Section 167 I.P.C, it is not open to the court to convict the accused for an offence Under Section 465 I.P.C. The conviction, in the absence of a distinct and specific charge, is unsustainable. The court pointed out that the reasoning of the trial court invoking the aid of Section 221 Cr. P.C. is not correct. He pointed that the ingredients of an offence Under Section 167 I.P.C. and the ingredients of an offence Under Section 465 I.P.C. arc not common. While 167 I.P.C. refers to an initial making of an incorrect record. Section 465 I.P.C. deals with subsequent alberation(sic) of a document which is already made. The court also pointed out that as the main allegation is that forgery is committed by making alterations in the service register and as the service register was not produced before the court, no finding can be recorded to the effect that the accused committed the offence of forgery as contemplated Under Section 463 I.P.C. It is also observed by the learned sessions judge that by virtue of the alleged alteration in the service register, no injury or damage is Caused to the complainant. As she continued in service in pursuance of the stay orders granted by the D.E.O., no damage is caused to her. Accordingly, he acquitted the accused.
4. The judgment is totally silent as to why the court did not think of remanding the case for framing a specific charge and then proceeding with the trial. The judgment is also silent as to the numerous official documents which were signed by the accused and which were countersigned by the officers of the education department which clinchingly show that her date of appointment is 6-9-1976 With one single observation that Exs. P.2., P. 6., P. 8, P. 13, and P. 14 were not proved by any reliable evidence, the judge gives a go-by to the voluminous documentary evidence placed before the court.
5. In this appeal against acquittal, Sri P. Gangaiah Naidu, the learned counsel for the appellant, contends that the manner in which the learned judge dealt with the matter is most improper and the reasoning adopted in paragraphs 4 and 5 is perverse. When there are numerous documents which are signed by the accused and which are countersigned by the educational authorities which clearly show that the date of appointment is 6-9-1976 and when it is clearly found that it was altered to 1-7-1977, the court should have convicted the accused even in the absence of producing the service register. The service register is a document which is in the custody of the accused. A photostat copy of it Ex. P. 13 was produced. The court should have acted upon Ex. P. 13. Mr. Gangaiah Naidu also contends that as the ingredients of an offence Under Section 167 I.P.C. and those of 463 I.P.C. are almost similar, it is open to the court to rely upon Section 221 Cr. P.C. and convict the accused for an offence Under Section 465 I.P.C. though there is no specific charge for an offence Under Section 465 I.P.C. Mr. Naidu contends that the observations of the learned judge in paragraph 5 of the judgment are offending to common sense and they are most unjudicious. The observation that due to the alteration in the service register, no injury or damage is caused to the complainant, is perverse. By altering the date of appointment in the service register, the accused terminated the services of the complainant and she is left to fend for herself. It is fortunate that the educational authorities have come to her rescue and allowed her appeal and permitted her to continue as a teacher. Inspite of the orders of the D.E.O., the accused has not paid the salary and he has been harassing the complainant. Now she is made to fight a civil litigation. |He contends that the conviction recorded by the Magistrate should be restored setting aside the acquittal. In the alternative, he contends that the Criminal Appeal may be allowed and the case remanded to the trial court for a fresh trial after framing a proper and distinct charge for an offence Under Section 463 I.P.C. punishable Under Section 465 I.P.C.
6. On behalf of the contesting respondent, it is argued that the judgment of the learned Additional Sessions Judge is perfectly sustainable and there is absolutely no justification for interfering with that judgment. There cannot be a conviction with out a specific charge being framed. A perusal of Chapter XVII clearly shows this If the court fell that a differrent offence is made out than the one charged, the court should have acted in accordance with Section 216 Cr P.C. and altered the charge and then proceeded further as contemplated Under Section 217 Cr.P.C. Section 221 Cr.P.C would come to the rescue of the complainant only when the two offences are such for which alternative charges could have been framed Under Section 221(1) Cr.P.C. Section 221 (2) Cr P. C. cannot be invoked where the offencesces are distinct offences and where the offence which is found to be established is not the one for which a charge could have been framed Under Section 221(1) Cr.P.C. The learned counsel also contends that non-production of the service register which is the subject matter of the forgery, is a great lacuna. By virtue of Article 20 Sub-Clause (3) of the Constitution, the accused cannot be compelled to produce the service register which is in his custody as that would be compelling an accused TO adduce evidence against himself.
7. The point for consideration is whether the appeal has to be allowed and, if so, whether the accused can straightaway be convicted for an offence Under Section 463 I.P.C. and punishable Under Section 465 I.P.C. or whether the case has to be remanded for a fresh trial.
8. Point : A perusal of the very lengthy and elaborate judgment written by the Magistrate clearly shows that at the time of framing the charges, the Magistrate committed a mistake and framed charges Under Sections 167 and 427 I.P.C. without looking into the ingredients of those offences. He does not also appear to have borne in mind that the complaint was not filed for an offence Under Section 167 I.P.C. The Magistrate has elaborately set out the numerous official documents to which the accused is a party which clearly show that the appointment of the complainant was on 6-9-1976. He specifically referred to the increment certificates which are also countersigned by the education department officials. Having found that the accused who had custody of the service register has not produced it and he was seeking protection under Article 20 Sub-clause (3) of the Constitution, the court should have proceeded on the basis of the other documentary evidence which clinchingly shows that the appointment of the complainant is on 6-9-1976. He should have also acted upon the photostat copy of the service register produced by the cnmplainant, namely, Ex.P-13 The Magistrate rightly concluded that the ingredients of Section 167 I.P.C. are not satisfied. Then, without looking into the provisions of Chapter XVII of the Cr.P.C, forgetting the fact that there was no specific charge framed for an offence Under Section 463 I.P.C. punishable Under Section 465 I.P.C. and without going into the question of the necessity for a specific charge for that offence, he straightaway convicted the accused for an offence Under Section 463 I. P. C. punishable Under Section 465 I. P. C. There is no doubt about the fact that the Magistrate committed an error in convicting the accused for an offence Under Section 465 I.P.C. where there is no specific charge framed for that offence. It cannot also be said that an offence Under Section 463 I.P.C. is a lesser offence than -the offence for which the charge is framed Under Section. 167 I.P.C. The nature of the two offences are totally different.
9. Coming to the appellate court's judgment, we find that the Additional Sessions Judge merely went on technicality and he refused to look into the numerous documents that have been produced before the court which clinchingly establish that the date of appointment is 6-9-1976 and that it was subsequently altered to 1-7-1977 by the accused after G.O. 411 dated 23-4-1982 was issued. Obviously as this G.O. gave a right to the accused to oust the untrained teachers appointed after 23-4-1977, he altered the entries ignoring the earlier service certificates and incerement certificates given by him and terminated the services of the complainant. Ex. P. 8, the increment certificate is a crucial document. Similarly, there are serveral other documents which clinchingly show that the date of appointment is 6-9-1976. In fact, several of the orders passed by the educational authorities clearly show that she was appointed on 6-9-1976. Obviously, the accused changed the date in service register to 1-7-1977 because that is the date on which the school was admitted to grant-in-aid. Ex. P. 45 at page 195 of the file clearly shows that the grants in aid were given from 1-7-1977. Obviously taking advantage of the G.O. and the date from which the grant in aid is given, the accused has resorted to device of altering the date of appointment from 6-9-1976 to 1-7-1977.
10. As rightly contended by the appellant's advocate, the reasoning adopted the Additional Sessions Judge in paragraphs 4 and 5 which alone discuss the legal aspects and the evidence on record are most unsatisfactory and the observations given in paragraph 5 are offending to common sense. When the accused is in possession of the service register and when he cannot be compelled to produce the service register, to say that no offence Under Section 463 I.P.C. is committed, though there is voluminous documentary evidence to indicate this fact, is too much to be swallowed. When the service register is not produced, the court should have acted upon the increment certificates, the service certificates and Ex. P. 13, the xerox copy of the service register which were produced by the complainant. As if to add insult to injury, the learned judge commented that no injury or damage is caused to the complainant due to the alleged alteration in the service register. This is an absurd statement. By the alteration in the service register, the accused perpetrated the mischief of terminating the services of the complainant and he denied payment of salary to her inspite of the (sic)E.O allowing her appeal and directing for her continuation. In addition (sic) that, he made her face a civil litigation which is now pending as O.S. (sic) 76 of 1984 on the file of the Principal District Munsif, Tadepalli-(sic)
11. Considering the entire matter, I hold that the Magistrate committed a technical mistake in not strictly conforming to the provisions of Chapter XVII of the Cr.P.C. When he found that the accused is guilty of the different offence than the one for which he was charged. The Additional Sessions Judge, who heard the appeal is technically right in allowing the appeal and setting aside the conviction in the absence of a specific charge for an offence Under Section 463 I.P.C. punishable Under Section 465 I.P.C. But the learned Additional Sessions Judge is not justified in making the numerous remarks which he made in paragraphs 4 and 5 of the judgment and he is also not justified in not remanding the case for a fresh and proper trial when there is volumiuous documentary evidence to establish the complainant's case.
12. In the result, the appeal is allowed. The setting aside of conviction is upheld. C.C. No. 44 of 1984 is remanded to the file of the Additional Judicial First Class Magistrate. The Magistrate is directed to frame the charges properly after applying his mind to the statements recorded and the allegations in the complaint bearing in mind the provisions of Chapter XVII of the Cr. P.C. He should frame distinct charges for the different offences which are alleged to be made out as per the material on record. Then he should proceed with the trial afresh.
13. He shall endeavour to conduct the trial on a top priority basis and conclude the trial within four months from the date of receipt of the records in the Lower Court.