Delhi District Court
Ist vs Ramkesh Meena on 5 February, 2022
:1:
IN THE COURT OF SH. NAVEEN KUMAR KASHYAP
IST APPELLANT COURT/ADDITIONAL SESSIONS JUDGE-04,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
Criminal Appeal No.: 90/2020.
CNR NO.-.:DLCT01-003350-2020
The State (Govt. NCT of Delhi)
Through Public Prosecutor Delhi
....Appellant
versus
Ramkesh Meena
S/o Sh. Kirori Ram
R/o Village - Arij, PS: Mahvir,
Distt. Karoli, Rajasthan
....Respondent
Appeal received by Court : 12.03.2020.
Arguments concluded :24/01/2022.
Date of judgment :05.02.2022.
JUDGMENT BY FIRST APPELLANT COURT
1. The present Criminal Appeal is filed by the State / Public
Prosecutor, Delhi u/s 378 Cr.P.C. against the impugned judgment dated 20.12.2019 passed by the Court of Sh. Manoj Kumar, learned MM, Central District, Tis Hazari Court, Delhi, in case FIR No.56/2006, u/s 420/471 IPC of PS: Civil Lines, whereby the accused Ramkesh Meena was acquitted.
2. In nutshell it is the case of the appellant / State that on 16.08 1995 at CA: 90/2020 State Vs. Ramkesh Meena Page no.1 of 27 :2: old police lines accused Ramkesh Meena had deceived police recruitment authorities by claiming that accused is a metric/10th pass candidate and thereby dishonestly managed to seek employment in Delhi police on the basis of incorrect information and forged matriculation certificate. The accused used said certificate with dishonest intention for cheating by using said forged certificate with the knowledge that it was forged.
Aggrieved by such Judgment whereby the accused Ramkesh Meena was acquitted, the state/appellant challenged the same. In nutshell, grounds of the present appeal are as under:
(i) That Ld. MM failed to appreciate the record produced and proved as Ex.PW2/A(OSR) in the testimony of PW2 Sh. Govind Prasad who brought the tabulation register containing the record of students who had appeared in Board of Secondary Education, Ajmer Rajasthan whereby on roll no 426665 of the year 1989 one person namely Chhaju Singh Shekhawat S/o Hanuman Singh appeared in Board of Secondary Examination having date of birth 01.07.1973 and that his result was Fail. Thus, accused Ramkesh Meena never appeared on said roll number in said exam and that the certificate produced by accused was forged and fabricated.
(ii) That Ld MM failed to appreciate the summoned record of accused Ramkesh Meena produced by PW5 Smt. Saroj and proved as Ex.PW5/A, Ex.PW5/B(OSR) and Ex.PW5/C(OSR) (running into three pages). As per said record, accused Ramkesh Meena was not enrolled on roll No. 426665 in the year 1989 in said School. Thus, accused Ramkesh Meena never CA: 90/2020 State Vs. Ramkesh Meena Page no.2 of 27 :3: appeared on said roll no in said exam and that certificate produced by accused for getting the job in Delhi Police was forged and fabricated.
(iii) That Ld. MM failed to appreciate the summoned service record of accused Ramkesh Meena produced by PW7 ASI Rajkumar from HACR/PCR. As per said record, accused Ramkesh Meena joined services in Delhi Police on 18.09.1996 and submitted application form Ex.PW7/A (OSR) and thereafter, was dismissed vide Order Ex.PW7/B(OSR). Thus, accused Ramkesh Meena used forged certificate to gain job in Delhi Police with dishonest intention and thereby committed offence of cheating.
(iv) That Ld. MM failed to appreciate the testimony of PW8 Ct. Alok Kumar who verified documents of accused Ramkesh Meena from Govt. Sr. Sec. School, Sultana whereby submitted an application Ex.PW8/A to Principal of said School. Vide its reply Ex.PW8/B accused was not the candidate on roll No.426665 in the year 1989 and as per school record one Chhajju Singh Shekhawat DOB 01.07.1973 was the candidate and appeared in the said exam on the above said roll number.
(v) That the Ld. MM failed to appreciate the fact that non- examination of 1O is not always fatal for the prosecution case. As in the present case, the necessary corroborative documentary evidences are sufficient to prove the prosecution case.
(vi) That the Ld. MM failed to appreciate that complainant PW3 Laxmi Narayan Meena though turned hostile but there is sufficient documentary evidence to substantiate the charges against the accused.
CA: 90/2020 State Vs. Ramkesh Meena Page no.3 of 27 :4: Moreover, PW3 has only made oral allegations against accused without any documentary evidence but the prosecution case has been sufficiently proved. Thus, hostility of PW3 does not have any adverse effect on prosecution case.
3. As such it is prayed in such appeal by State that impugned judgment dated 20.12.2019 whereby respondent / accused Ramkesh Meena was acquitted, be set aside and he be convicted for the same.
4. On the other hand, a reply dated 28.10.2021 filed by the respondent / original accused. In nutshell, it is stated in such reply that the present appeal is not maintainable under the section 378 of Cr.P.C as such appeal be dismissed as not maintainable. It is further submitted that the impugned judgment has been passed on the basis of documents on record as such there is no infirmity or illegality in the impugned order dated 20.12.2019. It is further submitted that the present appeal filed by the appellant is not maintainable and liable to be dismissed as the appellant has not raised any substantial question of law to challenge the judgment dated 20.12.2019 passed by the Ld. Court of Sh. Manoj Kumar MM (Central) Tis Hazari Delhi in FIR No. 56/2006. The appellant has also not come before this Hon'ble Court with clean hands and has concealed and suppressed material facts which are part and parcel of the record of the trial court. It is further submitted that the present appeal filed by the appellant is not maintainable and liable to be dismissed on the ground "that the accused/respondent was joined the job as a driver in Delhi Police Department after qualified medical fitness test as well as after verification of all education document of respondent. It is further submitted that the present appeal is not CA: 90/2020 State Vs. Ramkesh Meena Page no.4 of 27 :5: maintainable under the section 378 of Cr.P.C, as the said appeal is time barred, appeal should be filed til1 30.01.2020 (after less the 10 day of winter vacation) but present appeal filed by the appellant after 37 days as such appeal be dismissed as not maintainable.
It is further submitted that it is denied that accused used said certificate with dishonest intention for cheating by using said forged certificate with the knowledge that it was forged.
It is further submitted that Ld. Trial Court has passed the order and judgment in a fairly and judiciously after considering and appreciating all the facts and material on record and in accordance with the law.
It is further submitted that the PW3 Sh. Laxmi Narayan Meena give the statement on dated 24.05.2018 again dated 02.08.2018 and dated 26.02.2019 before the trial Court "That I do not know anything regarding the matter. I never made any complaint against accused".
It is further submitted that the appellant has no legal and valid grounds to file the present appeal and challenge the order and judgment passed by the Ld. Trial Court. As such it is prayed by the respondent / present accused as the same is devoid of any merit. Further, Ld. Counsel for the respondent also relied upon certain judgments in support of his arguments.
5. I have heard both the sides in detail and perused the record, including trial court record. Further, I have gone through the case law filed by the parties.
6. Before proceeding further it is necessary to deal with the objection CA: 90/2020 State Vs. Ramkesh Meena Page no.5 of 27 :6: of the respondent about delay in filing the present appeal.
7. During the course of arguments it is submitted on the part of state that impugned judgment in question was passed on 20-12-2019 . That Certified copy of the same was received on 26/12/2019. That the present appeal was filed on 11/03/2020. It is further argued that the time period allowed is 90 days to the state to file appeal. Thus when so counted from 27/12/2019, there is delay of about 15 days only . It is further argued that the delay caused in filing the present leave to appeal was neither intentional nor the same was on account of inaction or negligence on the part of the appellant but the same is due to bona fide reasons. Ld APP further submits that after the impugned judgment was passed, the file was processed in various departments for opinion as to whether an appeal should be filed or not ultimately it was approved by concerned authority .Thereafter the file was sent to the office prosecution.
8. This contention is vehemently opposed by learned counsel for respondent on the ground that the appellant has failed to show sufficient cause for seeking condonation of delay. Counsel further submits that the grounds raised for condonation of delay are stereotype in nature; the delay has occurred on account of inaction on the part of the State and, thus, delay should not be condoned.
9. At the outset, it may be noted that this has been filed by the state and it has sought condonation of delay on the ground that after the judgment was pronounced the files were processed in various departments for opinion on the point of filing of an appeal against the impugned judgment and it was finally CA: 90/2020 State Vs. Ramkesh Meena Page no.6 of 27 :7: approved.
10. While there is no quarrel with the proposition that in order to succeed in an application filed under Section 5 of the Limitation Act an applicant must satisfy the Court that he was prevented by sufficient cause in filing the appeal within the period of limitation. Delay in filing appeals has been a subject matter of decision before the Apex Court in a large number of cases. It has been inter alia held by the Apex Court that Section 5 of the Limitation Act is to be construed liberally so as to do substantial justice to the party. It would be useful to refer to decision of the Apex Court in the case of State (NCT of Delhi) v. Ahmed Jaan, reported at (2008) 14 Supreme Court Cases 582. Relevant portion of the judgment reads as under:
"...... The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy (AIR 1998 SC 3222) it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.
9. What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. v. Shanti Misra (1975 (2) SCC
840) this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram (ILR (1918) 45 Cal 94 (PC) it was observed that CA: 90/2020 State Vs. Ramkesh Meena Page no.7 of 27 :8: true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari (AIR 1969 SC 575) a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
10. In Concord of India Insurance Co. Ltd. v. Nirmala Devi [(1979) 4 SCC 365] which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan [(1969) 2 SCC 770], this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.
11. In State of Kerala v. E. K. Kuriyipe (1981 Supp SCC 72), it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath [(1982) 3 SCC 366], it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Article 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and the case was remitted for decision on merits.
12. In O. P. Kathpalia v. Lakhmir Singh [(1984) 4 SCC 66], a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector Land Acquisition v. Katiji [(1987) 2 SCC 107], a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression „sufficient cause‟ is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice -
that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal CA: 90/2020 State Vs. Ramkesh Meena Page no.8 of 27 :9: approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression /every day's delay must be explained‟ does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense, pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned.
13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note- making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non- grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Prabha v. Ram Parkash Kalra (1987 Supp SCC 339), this Court had held that the court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law.
CA: 90/2020 State Vs. Ramkesh Meena Page no.9 of 27 :10:
14. In G. Ramegowda v. Spl. Land Acquisition Officer (1988 (2) SCC
142), it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression „sufficient cause‟ must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts, omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have „a little play at the joints‟. Due recognition of these limitations on governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision-making process. The delay of over one year was accordingly condoned.
15. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise
- is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public CA: 90/2020 State Vs. Ramkesh Meena Page no.10 of 27 :11: interest. The expression „sufficient cause‟ should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants."
11. The above position was highlighted in State of Nagaland v. Lipok AO and Ors. [(2005) 3 SCC 752 (SCC PP 757-760, paras 8 to 15]; Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma [(1996) 10 SCC 634]; and State of Haryana v. Chandra Mani [(1996) 3 SCC 132). It was noted that adoption of strict standard of proof sometimes fail to protract public justice, and it would result in public mischief by skilful management of delay in the process of filing an appeal.
12. Applying the law laid down by the Apex Court to the facts of the present case, this court is satisfied that the State has been able to render a satisfactory explanation for condonation of, which is even otherwsie for 15 days delay only, in filing the present appeal. The respondents have been unable to show that this application lacks bona fide or that there is negligence on the CA: 90/2020 State Vs. Ramkesh Meena Page no.11 of 27 :12: part of the State. This court is also satisfied that in case delay is not condoned the same would result in miscarriage of justice.
13. At this stage I may be noted that no doubt, it is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
14. Further before proceeding further it would be fruitful to refer to the relevant provision of law.
15. As per section 463 IPC whoever makes any false documents or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
16. In order to constitute forgery, the first essential is that the accused CA: 90/2020 State Vs. Ramkesh Meena Page no.12 of 27 :13: should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any community.
Further the expression 'intent to defraud' implies conduct coupled with intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property.
The term 'forgery' as used in the statute is used in its ordinary and popular acceptation.
The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention.
The relevant questions are (i) is the document false (ii) is it made by the accused and (iii) is it made with an intent to defraud. If all the questions are answered in the affirmative, the accused is guilty.
In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently.
But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however, small.
The intent to commit forgery involves an intent to cause injury. A CA: 90/2020 State Vs. Ramkesh Meena Page no.13 of 27 :14: person makes a false document who dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed.
17. Section 24 of the Penal Code defines "dishonestly" as whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly.
Further ,"Fraudulently" is defined in section 25 IPC. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
The word "defraud" includes an element of deceit. Deceit is not an ingredient of the definition of the word "dishonestly" while it is an important ingredient of the definition of the word "fraudulently". The former involves a pecuniary or economic gain or loss while the latter by construction excludes that element. Further, the juxtaposition of the two expressions "dishonestly" and "fraudulently" used in the various sections of the Code indicates their close affinity and therefore the definition of one may give colour to the other.
18. Though almost always an advantage to one causes loss to another and vice versa, it need not necessarily be so.
If it is held that the concept of fraud would include not only deceit but also some injury to the person deceived, it would be appropriate to hold by analogy drawn from the definition of "dishonestly" that to satisfy the definition of "fraudulently" it would be enough if there was a non-economic advantage to the deceiver or a non-economic loss to the deceived. Both need not coexist.
CA: 90/2020 State Vs. Ramkesh Meena Page no.14 of 27 :15:
19. Further section 468 IPC states that whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
20. Section 471 of IPC states that whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
21. It may be noted that in the present case originally charge sheet was filed for the offence u/s 420, 468 and 471 IPC. Further, vide non-speaking order dated 03.09.2007, cognizance was taken by the then Ld. MM for all these three offences. Further, on perusal of record, it can be seen that vide order dated 24.04.2008 present accused was charged for the offence u/s 420 and 471 IPC only. Meaning thereby that he was not charged with the remaining offence u/s 468 IPC. But at the same time, it can again be noted that the order on charge is a non-speaking order. Further, such record / order do not disclose the reason for discharge of present accused for the offence u/s 468 IPC. In any case, as such order dated 24.04.2008 of the Ld. Trial Court, as per record was not challenged even by State at that time, nor now in this appeal against the impugned judgment in question which is regarding offence u/s 420 and 471 IPC only.Thus it is noted that offence u/s 468 IPC is not subject matter of present appeal.
CA: 90/2020 State Vs. Ramkesh Meena Page no.15 of 27 :16:
22. In this background of law and the facts we come back to present appeal. It is the case of the prosecution that originally a complaint was filed by PW3 Laxmi Narayan Meena Ex.PW3/A on the basis of which present FIR in question was registered. But on bare perusal of examination in chief of such PW3/ complainant, it is clear that he completely turned hostile and stated that he do not know anything regarding the present matter. He further denied making any such complaint against the accused ,but he admitted that he knows the accused Ramkesh Meena. As such at request permission was given to Ld. APP to cross examine such witness as he was resiling from his complaint given to police. During such cross examination by the Ld. APP he denied all the suggestions put to him.
23. In the impugned judgment in question dated 20.12.2019, it can be noted that Ld. Trial court by observing that such PW3 did not support the prosecution at all and turned hostile, it held that thus whole case of prosecution falls flat,as written in para 11 of such judgment.
24. On perusal of such impugned judgment, it can also be seen that in para 12 to 16, Ld. Trial court discussed the evidence of PW1, PW2, PW5, PW7 and PW8 and thereafter, in para 17 again held that whole case of prosecution depended upon the testimony of PW3 who turned hostile. Ld. Trial court further held there was no verification of documents done by Delhi Police earlier and the same was conducted after registration of FIR only. It was further held that no complaint was made regarding cheating made by the Delhi Police.
CA: 90/2020 State Vs. Ramkesh Meena Page no.16 of 27 :17:
25. In the considered view of this appellant Court, such finding by Ld. Trial court do not have any legal effect on the merit of present case. Whether at the department level, Delhi Police got verified such alleged forged documents submitted by respondent or not cannot have any legal adverse bearing on the present criminal case. Further, it is an independent action to be decided by concerned department / Delhi Police at its own level as per its service rules. Further, it is a basic law that only after registration of FIR investigation qua any offence like the offences alleged in present case is to be carried out. Further, it is also fundamental and settled law that anyone can set criminal law in motion, therefore, even if the concerned department / victim / Delhi Police, who was cheated and use of forged documents as alleged, did not file a formal complaint, same is of no legal consequence. Further, FIR is not a substantive piece of evidence. Further, evidence is to be collected during the investigation, like is collected by police in the present case. Further, as per the evidence which is discussed later on, prosecution did collect incriminating evidence against the accused and proved the same through various prosecution witnesses.
26. It is clear from record that in fact such PW3 / complainant knew the accused well, therefore, such use of such forged documents might have come in the knowledge of such PW3. But later on, it is clear that in order to help the accused he turned hostile during his evidence in court. But the fact remains that such allegations made in such complaint by PW3 are not based on oral evidence or something which was in special knowledge of such PW3 only.
CA: 90/2020 State Vs. Ramkesh Meena Page no.17 of 27 :18: Rather, such evidence relating to offences punishable u/s 420 and 471 IPC were already existing elsewhere, i.e. with the concerned department. And the only role of PW3 is that he gave information regarding such existence. Therefore, even if he turned hostile, same is of little consequence as also argued by Ld. APP for State/ appellant.
27. As such, such observations and findings by the Ld. Trial court are held to be misplaced. Further, there is no basis for the Ld. MM to conclude that other testimonies / material on record is not sufficient to convict the accused. Ld. MM further erred in holding so, particularly when it is settled law that criminal trial is an independent proceeding which is to be decided based on evidence in that case, without being influenced by proceeding / verification / non-verification at department level. In case, there is any lapse in verifying the documents by Delhi Police relating to recruitment of present accused/ respondent, then it is expected that concerned authority of Delhi Police at its department level would take action as per its rules.
28. In fact, Ld. Trial court erred in failing to appreciate that the core issue is whether respondent / accused furnished genuine or forged documents for its recruitment in Delhi Police and based on such forged documents, whether he committed cheating in such department in seeking the employment.
29. In this background coming to the evidence proved on record, it is noted that PW1 Inspector Rajesh Kumar who was posted as Inspector Vigilance in Delhi Police deposed that PW3 Laxmi Narayan Meena made a complaint and such PW1 himself contacted such PW3 Laxmi Narayan Meena / complainant. He further deposed that accordingly, he further directed to SI CA: 90/2020 State Vs. Ramkesh Meena Page no.18 of 27 :19: Vijay Gupta to procurer educational documents of accused / respondent Ct. Ramkesh Meena from recruitment Cell and get it verified from the concerned board.
Further, PW7 ASI Raj Kumar deposed in court and proved that accused Ramkesh Meena in fact joined service on 18.09.1996. such PW7 further proved application form of such accused alongwith complete service record as well as his order of dismissal from service, Ex.PW7/A (OSR) and PW7/P (OSR). PW7 further deposed that in his application form, accused mentioned that he has qualified matriculation examination and also supplied photocopy of marksheet and certificate for the same Ex.PW7/C and Ex.PW7/D.
30. Thus, on bare perusal of evidence of PW1 r/w PW7 it is clear that such accused in fact able to obtain the service in Delhi Police. It is further proved on record that for such service qualification of matriculation/ 10 th pass was required. It is further proved on record that PW1 himself came to know about the present complaint and the complainant / PW3 and had personal knowledge of the same thereafter.
31. Thus now what is to be judged is whether such certificates given by accused/ respondent were genuine or fake and whether it is so proved by the prosecution on record.
32. In this regard, it is noted that PW8 Ct. Alok Kumar deposed that on 22.07.2006 he reached at Sr. Higher Secondary School, Sultana, Distt. Jhunjhunu, Rajasthan and he gave application to the principal of such school CA: 90/2020 State Vs. Ramkesh Meena Page no.19 of 27 :20: for verification of Roll No.426665 for the year 1989 of accused Ramkesh Meena. His such application is proved on record as Ex.PW8/A, which bears his signature at point A. He further deposed that concerned Principal gave a written reply Ex.PW8/B, according to which present accused Ramkesh Meena bearing Roll No.426665 for the year 1989 was not a candidate and as per the school record, one Chhajju Singh Shekhawat, date of birth 01.07.1973 was the candidate who appeared in exam on such roll No.426665.
During his cross examination, PW8 was put question relating to his visit to Jhunjhunu Rajasthan. But on reading on the same, it can be seen that the same is regarding details of his visit and whether he can recall the name of principal whom he submitted such application to which PW8 replied that due to lapse of more than 12 years he do not remember his name.
33. In this background, it may further be noted that one Govind Prasad, PW2, Assistant Director, Board of Secondary Education, Ajmer, Rajasthan was also examined by the prosecution. Such PW2 proved on record tabulation register containing record of students who appeared from the board of Secondary Education, Ajmer, Rajasthan. He also also deposed that on Roll No.426665 of the year 1983, one person Chhaju Singh Sekhawat appeared in examination and even such Chhaju Singh Sekhawat with such roll number had a result if "fail". He proved on record attested true copy of the same as PW2/A and result name and particulars of the roll number in question is shown at point A to A1 (OSR). It may further be noted that such witness was not even cross examine by the accused side at all.
CA: 90/2020 State Vs. Ramkesh Meena Page no.20 of 27 :21:
34. Further, it is further very important to note that prosecution examined as PW5, Smt. Saroj Dadich, who was working as Principal of the same school at Jhunjhunu, Rajasthan to which PW8 submitted application for verification relating to accused / respondent documents in question. Such PW5 also brought the summon record of accused Ramkesh Meena and deposed that on checking of their school record, no such student was found on such Roll No.426665.
35. At this stage, it may further be noted that as per document Ex.PW7/C, which is an alleged secondary school examination certificate of such accused Ramkesh Meena, which is proved on record by Delhi Police from its record, which inturn given by such accused Ramkesh Meena only as deposed on record, Roll number mentioned in 426665 only. Likewise there is document Ex.PW7/D marksheet bearing such roll number for such accused Ramkesh.
36. Further, as such on scrutiny of evidence of PW2, PW5 and PW8, it is clear that Ld. Trial Court erred is not giving due weightage to their evidence, despite such witnesses proved that name of such Ramkesh Meena do not exist the documentary evidence in their record in concerned Government department against such Roll No.426665. Whereas such accused Ramkesh Meena furnished his documents Ex.PW7/C and Ex.PW7/D against such Roll number only.
37. It may further be noted that in his statement u/s 313 r/w 281 Cr.P.C., there is only bald denial by such respondent / accused. Further, he did not lead CA: 90/2020 State Vs. Ramkesh Meena Page no.21 of 27 :22: any evidence in defence.
38. In any case, it may further be noted that a negative evidence i.e. non- existence of a fact, like non-existence of the fact that accused is not a 10 th passed, cannot be given so directly. Whereas existence of positive fact i.e. existence of document that he passed 10th class can be easily given directly. In any case, it is held by this appellant court based on evidence of such PW1, PW2, PW5, PW7 and PW8, the prosecution is succeeded in proving on record that the documents furnished by accused/ respondent i.e. his marksheet and 10th pass certificate were forged and fabricated as no record of the same found in the concerned Government department as proved by not only PW5 but also by PW2 who is from the concerned education board.
39. Further, it is also settled law that in case a person used a forged documents then Section 471 IPC is attracted. In the present case, accused / respondent is the person, as per evidence, who gave such forged and fabricated documents Ex.PW7/C and Ex.PW7/D at the time of his recruitment with Delhi Police. Further, definition of fraudulently and dishonestly already noted above. By such furnishing of forged documents, the respondent is held to have intention to defraud and it also caused wrongful gain to him and wrongful loss to the Delhi Police / other meritorious candidates who would have got the selection in Delhi Police at such post, if such Ramkesh Meena did not furnish such false documents and as a result had not obtained such service in Delhi Police.
40. Thus in the light of law and nature of evidence required to be proved CA: 90/2020 State Vs. Ramkesh Meena Page no.22 of 27 :23: and the fact that respondent / accused is sole beneficiary of such forged certificates. Further, the fact remains that such certificates were not issued by the concerned office. Thus all such evidence on record proves beyond doubt that respondent did used such forged education certificates to obtain job in Delhi Police.
41. Further the case law relied by Ld counsel for accused deals with the basic law about such offence for which there cannot be any dispute. But every criminal case is to be decided based on its own facts and circumstances and same is decided accordingly in present case..
42. As such the necessary ingredients of section 471 IPC stand satisfied, accordingly respondent is held guilty for offence u/s 471 IPC. Section 420 IPC:
43. Section 420 IPC states that whoever cheats and thereby dishonestly induces 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, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
44. Thus section 420 IPC deals with cheating and dishonestly inducing delivery of property. The offence of cheating is made of two ingredients. Deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. To put it differently, the ingredients of the offence are that the CA: 90/2020 State Vs. Ramkesh Meena Page no.23 of 27 :24: person deceived delivers to someone a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing the person. To constitute the offence of cheating, it is not necessary that the deception should be by express words, but it may be by conduct or implied in the nature of the transaction itself.
45. Such offence of cheating is made punishable by sections 417 and 420, IPC. Section 417 provides punishment for a simple case of cheating, whereby, the person cheated is injured otherwise than by being induced to part with property.
Section 420 IPC deals with certain aggravated forms of specified classes of cheating. It deals with cases of cheating, whereby, the deceived person is dishonestly induced: (a) to deliver any property to any person; or (b) to make, alter or destroy: (I) the whole or any part of valuable security; or (ii) anything which is signed or sealed, and which is capable of being converted into a valuable security. It is required to prove that the complainant has parted with the property due to dishonest inducement of the accused. The property so delivered must have some money value to the person cheated.
46. Thus, the offence of cheating is made of two ingredients. Deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. To put it differently, the ingredients of the offence are that the person CA: 90/2020 State Vs. Ramkesh Meena Page no.24 of 27 :25: deceived delivers to someone a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing the person.
47. In the present case it is proved through PW1, PW6 and PW7 that accused / respondent did obtain employment in Delhi Police and even performed duty thereafter. Such witnesses proved his appointment process as well as his actual appointment and his service book etc. Thus there must have been monetary gain to such accused / respondent.
But for such forged certificates, accused/ respondent would not have been given job with Delhi Police. As such, by such deception of accused/ respondent, he fraudulently as well as dishonestly induced Delhi Police to appoint in its services. His acts are fraudulent as it is resulted into monetary gain to him and consequently lost to Delhi Police as well as to the rightful candidate who would otherwise would had got such job as per such selection process held. But because of employment of accused/ respondent, the rightful candidate was denied such job in Delhi Police.
48. Further his actions are deceitful as he wrongly claimed that he passed 10th class, which was the qualification required for the concerned job in question in Delhi Police. Accordingly, accused/ respondent is found guilty u/s 420 IPC also.
49. Thus, under these facts and circumstances and the evidence proved on record as discussed above, it is held that learned Trial Court erred in giving CA: 90/2020 State Vs. Ramkesh Meena Page no.25 of 27 :26: finding of acquittal by holding that prosecution failed to prove its case against the respondent beyond reasonable doubts and it wrongly given benefit of doubt to the accused. Accordingly, present appeal by the State is allowed and responded Ramkesh Meena is convicted for the offence u/s 420 IPC as well as u/s 471 IPC.
50. Further, as the Ld. Trial court gave a finding of acquittal, therefore, obviously stage of arguments on sentence and passing of appropriate order on sentence, as per law, did not arrive. But in view of such reversal of such judgment of acquittal and convicting the accused by this appellant court for such offences mentioned above, now arguments on sentence is to be heard and order on sentence thereafter, as per law is to be passed by the Ld. Trial court. Under these facts and circumstances, the present case is remanded back to the Ld. Trial Court only to the extent of hearing and passing order on sentence aspect.
51. For the sake of record, it is noted that this appellant court refrained from hearing and passing on order on sentence, firstly because the same is not prayed by the appellant which is clear on reading the prayer clause of this appeal. Secondly more importantly, if such appellant court passe an order on sentence, then precious right of appeal of both sides would stand forfeited against such order on sentence.
52. Accordingly, the respondent Ramkesh Meena is directed to appear before Ld. Trial Court of Sh. Manoj Kumar, MM06, Tis Hazari Court, Central District or his successor, as the case may be, on 09.03.2022 at 02:00 p.m. CA: 90/2020 State Vs. Ramkesh Meena Page no.26 of 27 :27: Further a copy of this judgment be sent to Ld. Trial Court for compliance and record.
53. Accordingly present appeal is allowed, in terms with above findings.
54. After due compliance appeal file be consigned to Record Room. Trial Court record be sent back to the court concerned.
Announced in the open
Court on this virtual
hearing day through NAVEEN Digitally signed by
NAVEEN KUMAR
VC of this Court KUMAR KASHYAP
Date: 2022.02.08
on 05th February, 2022 KASHYAP 15:07:44 +05'30'
(NAVEEN KUMAR KASHYAP)
ST
1 APPELLANT COURT/ ASJ-04
CENTRAL DISTRICT
TIS HAZARI,DELHI.
CA: 90/2020 State Vs. Ramkesh Meena Page no.27 of 27