Delhi District Court
State vs Tarkershwar Kumar Jha on 27 October, 2023
IN THE COURT OF SH. ANIMESH KUMAR
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
IN THE MATTER OF :
State Vs. Tarkeshwar Kumar Jha
FIR No. 137/2004
U/s 420/511 IPC and 468/471 IPC
PS : Uttam Nagar
Date of Institution : 23.07.2004
Date of Judgment : 27.10.2023
JUDGMENT
1. Serial No. of the case : 8698/2019
2. Name of the Complainant : SI Mahesh Kumar, No.
D-3498, Special Branch,
West Zone, New Delhi
3. Date of commission of offence : 10.09.2003
4. Name of accused : Tarkeshwar Kumar Jha s/o. Sh. Krishan Kant r/o.Village Sushi Semra, Post Jaitpur, PS Palanwa, East Champaran, Bihar
5. Offence charged : 420/511 IPC & 468/471 IPC
6. Plea of accused : Not guilty
7. Ld. APP for the State : Sh. Gaurav Dutt
8. Final Order : CONVICTION State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 1 of 32 BRIEF REASONS FOR ORDER:
1. The accused Tarkeshwar Kumar Jha has been chargesheeted for committing offences punishable under Section 420/511 and 468/471, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. As per the prosecution, in the year 2003, the accused Tarkeshwar Kumar Singh had applied for getting an Indian Passport. He had filled personal particular form wherein he had interalia mentioned his current residential address as H. No. 14, N Extension, Mohan Garden, Uttam Nagar, Delhi. He had also mentioned that he was residing on the said address since 15.04.2001. Thereafter, during the course of police verification, it was found out that the accused was not residing in the said address. Consequently, the police report was sent to the Regional Passport Office.
Thereafter, the accused again applied for the second time for the issuance of Indian Passport. He had filled personal particular form wherein he again mentioned his current residential address as H. No. 14, N Extension, Mohan Garden, Uttam Nagar, Delhi. During the police verification, he had produced one ration card in order to support his claim that he was residing on the said address. However, it was found out that the said ration card was forged/altered as the year mentioned therein State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 2 of 32 was altered from "2003" to "2002". It was also found out that the accused was merely a casual visitor on the said address. Thereafter, the present FIR was registered against the accused.
3. After conclusion of investigation, the present chargesheet was filed against the accused persons under Section 420/511 and 468/471 IPC.
4. On receipt of chargesheet, cognizance of offences was taken. Copy of the chargesheet alongwith all annexures was supplied to the accused in terms of Section 207 Cr.P.C.
5. After giving an opportunity to State as well as accused for making submissions on charge, charge for offences punishable U/s 420/511 and 468/471 IPC was framed against the accused on 17.08.2007 to which he pleaded not guilty and claimed trial.
6. Prosecution examined twelve witnesses to prove its case.
7. As PW1, one person namely Poonam was examined by the prosecution. She was the owner of the property mentioned by the accused in his application for the issuance of passport. She deposed that she did not remember the date, month and year of the incident. The accused was her relative who was staying at her home State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 3 of 32 for past one year. She also deposed that the accused had requested her to give ration card for addition of his name. The said ration card was handed over to the accused. Further, the accused returned the same on the same day and PW1 kept the same without checking. After some days, police reached at her home and took the ration card for inquiry. On that day, the police official told her nothing about any alteration in the ration card, however, after some days, the police official again visited her home and told her about the alteration and overwriting in the ration card. Thereafter, her statement was recorded by the police Ex. PW1/A.
8. PW1 was duly cross-examined by Ld. Counsel for the accused. During her cross-examination, she deposed that the accused had stayed at her home for many days as he was her relative. She also stated that it might be correct that the accused came to her house and resided therein immediately after completing his education at his native place in Bihar in the end of 2000. She further stated that she did not remember the correct year due to lapse of time. She denied the suggestion that the accused did not take her ration card at any point in time. She also denied the suggestion that she was deposing falsely.
9. PW2 Sanjay Kumar Jha is the husband of PW1. He also State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 4 of 32 deposed on similar lines as deposed by PW2. He was duly cross-examined by Ld. Counsel for the accused wherein he deposed that the accused stayed for many days at his house. He further stated that the accused had taken ration card about 1-1.5 years after he started residing in his house. PW2 further stated that he could not say anything regarding the alteration in his ration card. He also denied the suggestion that the accused did not take her ration card at any point in time. He also denied the suggestion that she was deposing falsely.
10. PW3 ASI Ajit Singh was the duty officer who had registered the present FIR. He deposed that on 16.02.2004, he was posted as Duty Officer at PS Uttam Nagar. On that day, SI Bega Ram produced one complaint at about 8 PM and he registered the present FIR u/s 420/465/471 vide DD No. 24A. Thereafter, he handed over the copy of FIR and original complaint to SI Bega Ram. Copy of FIR is Ex. PW3/A and endorsement made on the complaint is Ex. PW3/B. He was not cross- examined by Ld. Defence Counsel despite opportunity.
11. Retired Inspector C.M Meena was examined as PW4.
During his examination-in-chief, he deposed that in the year 2003, he was posted as SI at West Zone, Special branch, Tilak Nagar. He was directed to inquire regarding a passport vide file no. A-015414/03 about the State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 5 of 32 accused Tarkeshwar as same was marked to him by Inspector, West Zone, Special Branch. Thereafter, he went to inquire about the same at H. No. N-14, Extension Mohan Garden, Uttam Nagar where he met with Poonam Jha who told him that the accused was residing at the said address 2-3 months before . She also informed him that the accused was not residing at the said address at that point of time. Thereafter, he recorded the statement of Poonam Jha Ex. PW4/A and prepared his report Ex. PW4/B. He also made endorsement on the passport form Ex. PW4/C. Thereafter, he had submitted his report to Inspector, West Zone, Special Branch.
12. PW4 was duly cross-examined by Ld. Counsel for the accused. During his cross-examination, he deposed that he had visited the address situated at H. No. 14, Extension Mohan Garden, Uttam Nagar on 07.08.2003. He had met only with Poonam Jha on the said address. She told him that she was landlady of that house and was also residing there. PW4 further admitted that he did not obtain copy of voter id card, ration card or any other document from her. He also stated that he had submitted his report on 08.08.2003.
13. PW5 Inspector Mahesh Kumar deposed that in the year 2003, he was working as SI at Special Branch, West State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 6 of 32 Zone, PS Tilak Nagar, Delhi. At that time, passport verification of accused Takeshwar Jha was marked to him. After verifying the fact, he had submitted his verification report in which he had submitted that the accused was a casual visitor. Thereafter, the accused again applied for passport by filling PP form and the inquiry of the same was again marked to him in which he found that the accused had altered/forged the date in ration card from 22.09.2003 to 22.09.2002. The said fact was also verified by him from the Food & Supply Office, Janakpuri. He further stated that the accused had altered/changed the date in ration card from 22.09.2003 to 22.09.2002 for obtaining passport. He also stated that the personal particular form received by him when he submitted his report that the accused was a casual visitor was Ex. PW5/A. His report in this regard is Ex. PW5/B. The PP form which was filled by the accused for obtaining passport is Ex. PW5/C. His detailed report of the inquiry is Mark A. Letter received from Food & Supply Department is Mark B. Photocopy of the ration card in which the accused has made alteration is Mark C and the relevant place where the change is made is point X. He correctly identified the accused in the Court. He also submitted that the original documents of reports Mark A, Mark B & Mark C could not be produced as the same were destroyed by the Special branch.
State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 7 of 32
14. SI Suresh Sharma was examined as PW6 who deposed that he was deputed by DCP, Special branch to produce the record I.e. report of SI Mahesh Kumar dated 22.09.2003 regarding the passport verification report of the accused along with the enclosures. He stated that he did not bring the said record as the same was destroyed by the order of DCP Special Branch. He brought on record the attested copy of the order dated 03.11.2009 & 22.04.2010 passed by Sh. Veermati, ACP/ APP for DCP Special branch. He also filed on record the attested copies of the relevant orders related to destruction of record Ex. PW6/A. DD No. 18 dated 09.11.2009 through which the records were destroyed is Ex. PW6/C.
15. Retired ACP Mahavir Singh was examined as PW7. He deposed that in the year 2003, he was posted as Inspector In-charge, Special Branch, West Zone. One person namely Tarkeshwar Jha, S/o Kishan Lal, R/o 14N, Extension Mohan garden had applied for passport and the file was received in West Zone for inquiry. Thereafter, the papers were marked to SI Mahesh Kumar for inquiry. After inquiry, Mahesh Kumar submitted report wherein it was mentioned that the applicant was a casual visitor and the same report was sent to the passport office on 12.08.2003. He further stated that the applicant again applied after filing a PP State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 8 of 32 form and the inquiry was again marked to SI Mahesh Kumar. During the inquiry, it was found that the copy of ration card which was earlier produced at the time of inquiry. The year in the ration card was mentioned as 2002 while when the same was earlier produced, it mentioned the issuing year as 2003. He further deposed that on the basis of report submitted by SI Mahesh Kumar, he prepared his own report Ex. PW7/A and the same was forwarded to DCP, Special Branch through ACP, West Zone.
16. PW7 was duly cross-examined by Ld. Counsel for the accused. During his cross-examination, he stated that he did not personally make any inquiry in the present case. One letter was sent to the Food & Supply Department through his office. He admitted that he did not conduct any investigation in the present case. He also could not say as to whether the reply from the Food & Supply Department was placed on record.
17. ASI Satish Kumar was examined as PW8 who deposed that on 13.07.2004, he was posted at PS Uttam Nagar and he joined the investigation with IO SI Bega Ram. IO had arrested the accused in his presence. He correctly identified the accused present in the Court. He also stated that IO took the specimen signature and handwriting of the accused in the present case. He was State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 9 of 32 not cross-examined by the accused despite opportunity.
18. Inspector Bega Ram was examined as PW9 by the prosecution. He was the investigating officer of the present case. During his examination-in-chief, he deposed that in the year 2004, he was posted at PS Uttam Nagar as Sub Inspector. DCP, Special Branch had given a complaint against the accused Tarkesh Kumar Jha Mark A and the same was marked to him in February, 2004. On the basis of the said complaint, the present FIR was registered on 16.02.2004. During the course of investigation, he had collected RPO form and PP form from ASI Ravinder Kumar already Ex. PW5/C & Ex. PW4/C respectively. The same was also seized vide seizure memo Ex. PW9/1. He further deposed that he had collected the report prepared by SI C.M Meena already Ex. PW4/B and also collected report prepared by SI Mahesh Kumar Ex. PW5/B. Thereafter, on 13.07.2004, he along with Ct. Satish reached at N Extension, 14, Mohan Garden and arrested the accused vide arrest memo Ex. PW9/A. He also conducted the personal search of the accused vide personal search memo Ex. PW9/B. He further stated that during the course of investigation, he took specimen handwriting of the accused Ex. PW9/C (colly). He also took specimen signature of the accused Ex. PW9/D. During the course of investigation, he also moved an application to Food & State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 10 of 32 Supply Officer, Circle 27, Vikaspuri for providing record of ration card of the accused Ex. PW9/E. Reply received from the said department is Ex. PW9/F. He also collected copy of record of ration card from Food & Supply department Mark P-1. He also seized the ration card from the accused vide seizure memo Ex. PW9/G and the said ration card is Mark P-2. He correctly identified the accused present in the Court. He was duly cross-examined by Ld. Counsel for the accused.
19. Retired SI Ravinder Kumar was examined as PW10.
During his examination-in-chief, he deposed that had had joined the investigation of the present case during which the IO had collected PP form and RPO form from him.
20. Sh. Devak Ram was examined as PW-11. He was the Asst. Director, Documents, FSL and had examined documents in the present case. He deposed that he used to work as document expert at FSL Rohini till his retirement in 2013. He had examined certain documents forwarded by PS Uttam Nagar vide letter dated 10.08.2014 in connection with the present FIR. After examination, he had filed a detailed report Ex. X-1. He was duly cross-examined by Ld. Counsel for the accused. During his cross-examination, he deposed that he did not file any certificate u/s 65B verifying the State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 11 of 32 contents of Ex. X-1 as the same was not electronic evidence. He also stated that he did not remember regarding the documents which he had examined in the present case due to lapse of time. He further (after seeing the report) stated that he had examined the ration card. He also stated that there was no possibility of any mistake while examining the documents as the same was examined by the expert as well as forwarded by senior officers. He denied the suggestion that there are chances of mistake in opinion while examining the said documents or any document. He further denied the suggestion that he had prepared the said opinion in collusion with the IO.
21. Sh. Mohit Drall was examined as PW-12. He was working as Junior Assistance in Food & Supply Office, Circle 27, Rajouri Garden, New Delhi. He had brought on record reply dated 19.06.2023 Ex. PW12/A as per which the status of ration card no. 965142 could not be traced in the record. He was not cross-examined by the accused despite opportunity.
22. The record also transpires that without admitting the contents therein the accused Tarkeshwar Kumar Jha had admitted the FSL Report Ex. X-1, accordingly the formal proof of the same was dispensed with in terms of Section 294 CrPC.
State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 12 of 32
23. Since, no other witness was examined by prosecution, hence, the evidence was closed and statement of accused was recorded under Section 313 Cr.P.C. to allow him to explain the incriminating circumstances appearing in evidences against him wherein it was stated by accused that was falsely implicated in the present case. He stated that he used to reside on the said address for around 7 months and had included his name in the ration card with the consent of his relatives. He further stated that he had not done any alteration in the said ration card. He also stated that the police officials had kept his ration card for 2-3 months and falsely implicated him in the present case.
24. Since, the accused chose not to lead any evidence in his defence, therefore, DE was closed and the matter was adjourned for final arguments.
25. Final arguments were thereafter heard on behalf of State as well as the accused.
26. Ld. Counsel for the accused had argued that the prosecution had failed to prove the nexus between the accused and the alleged offences. Authorship of the alleged forged document could not be properly established by the prosecution. Also, neither the original ration card nor its record could be proved by the prosecution. Further, the complainant, DCP, Special State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 13 of 32 Branch was neither cited nor was he examined as witness. Also, the original tehrir dated 28.01.2004 was not proved by the prosecution. Hence, benefit of doubts should be extended to the accused in the present case.
27. Per contra, Ld. APP for the State submitted that the original ration card was already seized in the present case. As per the FSL report, it was clear that alteration was done in the said ration card by the accused. Since, the said ration card has been used by the accused after alteration for getting passport, he must be convicted for all the offences for which he is charged in the present case.
28. I have carefully considered the submissions made on behalf of the parties and have perused the case file meticulously.
29. For the convenience, I shall be examining the culpability of the accused for each of the offences separately.
CULPABILITY OF THE ACCUSED FOR THE OFFENCE PUNISHABLE U/S 420/511 IPC
30. It is also the case of prosecution that the accused Tarkeshwar with a fraudulent and dishonest intention had attempted to induce the Regional Passport Office (hereinafter referred as "RPO") by furnishing false information about his length of stay at the address State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 14 of 32 situated at H. No. N-14, Extension, Mohan Garden, Uttam Nagar with the object of getting an Indian Passport issued in his name when he himself knew that the information furnished by him was false.
31. Section 420 IPC provides for the offence of cheating and dishonestly inducing delivery of property. Simple cheating is punishable u/s 417 IPC. But where there is delivery or destruction of any property or alteration or destruction of any valuable security resulting from the act of person deceiving, the same falls under the ambit of section 420. It reads as under:
"S.420. Cheating and dishonestly inducing delivery of property.--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"
32. The essential ingredients to attract section 420 IPC are:
• Cheating;
• Dishonest inducement to deliver property or to make, alter or destroy any valuable security or State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 15 of 32 anything which is sealed or is capable of being converted into a valuable security; and • Mens rea of the accused at the time of making the inducement.
33. It should also be noted that accused should have dishonest intention to cheat right at the time of making the promise or representation. If he does not have any such intention at the very outset and if he subsequently fails to fulfil the said promise, then he cannot be convicted for the offence punishable u/s 420 IPC. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Hira Lal Hari Lal vs. CBI (2003) 5 SCC 257.
34. It should be noted that the accused has not been charged for the offence of cheating per se in the present case rather he has been charged for attempt to cheat as passport i.e. a valuable security was not delivered to the accused on the basis of inducement made by him, and, thus, last stage of crime i.e. commission could not be completed.
35. In order to bring home the culpability of the accused for the offence punishable u/s 420/511 IPC, the prosecution has primarily relied upon the testimonies of PW4 and PW5. These witnesses were the police officials who had State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 16 of 32 conducted the address verification when the accused had applied for the issuance of Indian passport.
36. It should be noted that as per the testimonies of PWs and materials brought on record, it is clear that the accused has applied for the Indian passport twice by filing personal particular forms. The first personal particular form filled by the accused for getting passport is Ex. PW4/C. Perusal of the said form would clearly show that the accused had mentioned his current residential address as "House No. 14, N-Extension, Mohan Garden, Uttam Nagar, New Delhi, 110059." Further, he had also mentioned that he was residing on the said address since 15.04.2001. The address verification of the same (qua Ex. PW4/A) was assigned to PW4. In his testimony, he had categorically stated that he had visited the said address and met PW1 who informed him that the accused was residing on that address for last 2-3 months ago. She also informed PW4 that the accused was not residing on the said address at the time of verification. Statement of PW1 in this regard was also recorded by PW4 Ex. PW4/A. Thereafter, PW4 had prepared his report Ex. PW4/B whereby he had mentioned that the accused was not residing on the said address.
37. Further, the accused even after furnishing false State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 17 of 32 information in his passport application had again applied for the second time and filled personal particular form Ex. PW5/A wherein he had again mentioned his current address as H. No. 14, N-Extension, Mohan Garden, Uttam Nagar. The address verification was assigned to PW5 who visited the said address and found that the accused was a casual visitor.
38. Perusal of the testimonies of PW4 & PW5 , personal particular form Ex. PW4/C filled by the accused and statement of PW1 recorded by PW4 Ex. PW4/A would clearly show that the accused had intentionally furnished false information Ex. PW4/C regarding his length of stay at the given address. The false information was furnished in order to induce the RPO to issue Indian Passport to him. Both these witnesses were duly cross- examined by Ld. Counsel for the accused and no material contradictions could be seen in their testimonies over this aspect.
39. During the final arguments, Ld. Counsel for the accused had contended that the PW1 and PW2 (in whose home the accused had claimed to be residing at the relevant time) had not supported the case of prosecution that the accused was a casual visitor or not residing at the said address. It was argued that both of them had stated that the accused was residing at the said address for many State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 18 of 32 days.
40. Perusal of the testimonies of PW1 and PW2 would show that both of them had contradicted each other on the point of length of stay of the accused at their house. PW1 in her testimony had stated that the accused was staying at her home for past one year while PW2 (husband of PW1) had stated that the accused was staying in his home for past 2.5 years. This is a material contradiction in the testimonies of these witnesses which would make them unsafe to be relied upon.
41. Further, it should be noted that as per the materials available on record, the accused had applied for passport for the first time in the month of June/July 2003 by filling personal particulars form Ex. PW4/C where he had mentioned his length of stay on the said address from 15.04.2001. Thereafter, it was sent for verification of the particulars of the accused by RPO to the DCP, Special Branch on 29.07.2003. However, interestingly, at the stage of recording of statement u/s 313 Cr.P.C, the accused had himself stated that he used to reside at the said address for around 7 months. This would mean that the accused had himself indirectly admitted that he was not residing on the said address from 15.04.2001. It would also mean that the accused had intentionally furnished false information in his passport form Ex.
State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 19 of 32 PW4/A in an attempt to induce the RPO to issue Indian Passport to him.
42. Hence, in view of the above discussions, I find that the prosecution has successfully proved beyond reasonable doubt that the accused has fraudulently furnished false information while applying for the issuance of Indian Passport with the intention to induce the RPO to issue passport to him. Since, the accused had done overt act by filling the personal particular form, he had attempted to cheat the RPO.
CULPABILITY OF THE ACCUSED FOR THE OFFENCE OF FORGERY u/s 468 IPC
43. As per the case of prosecution, the accused Tarkeshwar Kumar Jha had altered the year mentioned in the ration card of PW1 & PW2 from 2003 to 2002 and used the same in order to get passport. Hence, the accused had committed an offence punishable u/s 468 IPC.
44. Section 468 of the IPC provides for aggravated form of forgery and attracts stringent punishment. It deals with forgery for the purpose of cheating. It reads as under:
"468. Forgery for purpose of cheating. -- Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 20 of 32 term which may extend to seven years, and shall also be liable to fine.."
45. Therefore, the primary ingredient which needs to be proved by the prosecution in order to attract section 468 IPC is the existence of a "forgery". Forgery is defined in section 463 IPC as the making of a false document or false electronic record with any of intentions mentioned therein. Section 464 defines the making of false document or false electronic record.
"Section 463 reads as under:
"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."
Section 464 reads as under:
"Making a false document- A person is said to make a false document or false electronic record-
First- Who dishonestly or fraudulently- Makes, signs, seals or executes a document or part of a document; Makes or transmits any electronic record or part of any electronic record;
State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 21 of 32 Affixes any electronic signature or any electronic record;
Makes any mark denoting the execution of a document or authenticity of the electronic signature, With the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed, or affixed; or Secondly- Who, without lawful authority, d i s h o n e s t l y o r f r a u d u l e n t l y, b y cancellation or otherwise alters a document or an electronic record in any material part thereof, after it has been made, executed pr affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 22 of 32 document or electronic record or the nature of the alteration."
46. Therefore, a combined reading of the provisions enshrined in section 463 and 464 suggests that in addition to prove the making/existence of a false document by the accused, the prosecution is also required to establish that the said document or electronic record as the case may be, was forged to achieve any of the intentions enumerated in section 463 i.e. (i) to cause damage or injury to the public, or to any person; or (ii) to support any claim or title; or (iii) to cause any person to part with property; or (iv) to enter into any express or implied contract; or (e) to commit fraud or that fraud may be committed. Therefore, in order to convict an accused u/s 467 IPC, prosecution needs to prove / establish the making of a false document mentioned therein.
47. As discussed in the preceding paragraphs, the foremost ingredient which needs to be established by the prosecution in order to prove the culpability of an accused u/s 468 is the "existence of a forged document' which must be made in furtherance to cheat any other persons. In other words, the prosecution needs to establish the fact that the accused made a false document with the intention to cheat.
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48. In the instant case, it should be noted that the prosecution had primarily relied upon the FSL Report Ex. X-1 to prove the fact that the ration card of PW1 & PW2 was altered in as much as the year was altered from 2003 to 2002.
49. The said ration card which has allegedly been altered in the present case is already filed on record marked as Mark P-2. During the course of investigation, the same was seized by the IO vide seizure memo Ex. 9/G. Perusal of the same would show that the same belonged to PW1 and PW2 and name of the accused was also added in the said ration card. It should be noted that the authenticity of the said ration card per se was never disputed by the accused in the present case. He had not even given a single suggestion to any of the PWs disputing the authenticity of the said ration card. In fact, accused in his statement recorded u/s 313 Cr.P.C had himself admitted that had got his name included in the ration card with the consent of his relatives. Hence, I find that the prosecution has duly proved on record the ration card Mark P-2 and the same would be relevant in the present case even though it has not been exhibited. Hence, I find that the argument raised by Ld. Defence Counsel regarding the relevancy of ration card (in the absence of its original record) does not hold any ground.
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50. As per the case of prosecution, it was this ration card Mark P-2 which was forged/altered by the accused. During the course of investigation, the said ration card was sent to the FSL for forensic examination. As per the FSL Report Ex. X-1, "In the red enclosed part marked Q1 the existing date 29.09.02, figure '2' at place of year is not the original figure and when examined under different lighting conditions Figure '2' in the place of the year gives different luminescence of ink as compared to the other figures which indicate the original figure '3' has been altered to existing figure '2' by addition of strokes and original figure reading as '3' is also visible below the existing figure '2'.
51. Perusal of the FSL Report Ex. X-1 would clearly show that the year mentioned in the ration card Mark P-2 at place Q1 was altered in as much as "2003" was altered to "2002". This would clearly show that the ration card Mark P-2 was altered and, therefore, was a false document.
52. However, the same would not automatically lead to the inference that it was the accused Tarkeshwar Jha who had forged/altered the said ration card. Prosecution could not prove this fact beyond reasonable doubt. None of the PWs could categorically depose that it was the accused who had altered the said ration card. In State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 25 of 32 fact, as per the FSL Report Ex. X-2, no opinion could be expressed regarding the authorship of the alteration made.
53. It is a settled proposition of law that only that person can be convicted for the offence of forgery as defined u/s 464 IPC who is the maker/creator of the said forged document. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Sheila Sebastian vs. R Jawaharj & Anr. Criminal Appeal Nos. 359-360 of 2010 decided on 11.05.2018 wherein the Apex Court has held the following:
"Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery."
54. Therefore, in view of the above discussions and findings, I find that while the prosecution has successfully proved the fact that the ration card Mark State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 26 of 32 P-2 has been forged / altered, however, it failed to prove beyond reasonable that it is the accused who has altered / forged the said ration card. Hence, benefit of doubt needs to be extended to the accused for the offence of forgery punishable u/s 468 IPC.
CULPABILITY OF THE ACCUSED FOR THE OFFENCE U/S 471 IPC
55. As per the case of prosecution, the accused Tarkeshwar Kumar Jha had used the forged ration card in order to get passport. He had used the said ration card (after alteration) to establish the fact that he was residing on the said address from the year 2002.
56. Section 471 IPC provides for the offence of using as genuine a forged document. It reads as under:
"471. Using as genuine a forged [document or electronic record].-- 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]."
57. The essential ingredients of section 471 IPC are: (i) fraudulent or dishonest use of document as genuine, and (ii) knowledge or reasonable belief on the part of State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 27 of 32 person using the document that it is forged one. The act need not be both dishonest and fraudulent. The use of document contemplated by this provision must be a voluntary one.
58. It should be noted that section 471 is intended to apply to persons other than the forger himself, but the forger himself is not excluded from the operation of this provision. In order to attract this provision, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must of necessity be convicted before the person using the forged document, knowing it to be forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of A.S. Krishnan and Others vs. State of Kerala (2004) 11 Supreme Court Cases 576.
59. In order to bring home the culpability of the accused for the offence punishable u/s 471 IPC, the prosecution has primarily relied upon the testimony of PW5. PW5 was the police official who had conducted the enquiry for verification of address for the purpose of issuance of passport. In his testimony, he had categorically stated State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 28 of 32 that the accused had applied for passport by filling PP form Ex. PW5/C. During the enquiry, the accused had produced one ration card on which the date was changed from 22.09.2003 to 22.09.2002. Perusal of his testimony would show that the accused had used the said ration card in order to establish the fact that he was residing on the given address w.e.f. 22.09.2002 despite having complete knowledge that the same was incorrect as he was not residing on the said address from the year 2002.
60. As discussed by the Hon'ble Supreme Court in the A.S. Krishnan case (supra), it is not imperative that an accused independently charged for the offence of forgery must be convicted first in order to convict the person for the offence of using forged documents as genuine. In the instant case, as discussed in the preceding part of this judgement, the ration card Mark P-2 was forged as the same was altered. Although, accused Tarkeshwar Kumar Jha has been given benefit of doubt for the offence of forgery, however, the same would not mean that the said ration card was not forged.
61. When the incriminating materials were put before the accused at the time of recording of statements u/s 313 Cr.P.C, he only stated that he had not made any alteration to the ration card, however, he did not dispute State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 29 of 32 the fact that alteration was made on the same. He also remained silent qua the fact as to whether he had used the same for getting passport. In fact, he himself had admitted that he used to reside at the said address for around 7 months. This would mean that he had the knowledge that he was not residing on the said address from the year 2002. The fact that the accused had used the ration card could also be corroborated from the testimonies of PW1 and PW2 who in their respective testimonies had also stated that the accused had taken their ration card and returned the same after some time.
62. Hence, in view of the above, I find that since the use of forged/altered ration card has been conclusively established by the prosecution, therefore, I find that there are sufficient materials on record to convict the accused for the offence punishable u/s 471 IPC.
63. Having discussed the culpability of the accused in the present case, I shall also be dealing with remaining objections raised by Ld. Counsel for the accused during the final arguments. Ld. Defence Counsel had argued that DCP, Special Branch who was the complainant was neither cited as witness nor was he examined during the course of investigation. It should be noted that the present FIR was registered primarily on the basis of report of SI Mahesh Kumar through the Office of DCP, State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 30 of 32 Special Branch. It cannot be said that it was the DCP who had personally filed the present complaint. Hence, this argument raised by Ld. Defence Counsel does not hold any ground.
64. Further, Ld. Defence Counsel had also argued that the complaint dated 28.01.2004 i.e. original tehrir was not proved on record and only endorsement Ex. PW3/B made thereon was proved. This argument can also not be appreciated by this Court. The factum of registration of the present FIR was duly proved on record by the prosecution. Complaint in the present case was made through official channel. Complaint was not made by any private individual.
65. Therefore, in view of the above discussions and findings, I find that the prosecution has proved the following beyond reasonable doubts:
• That the accused Tarkeshwar Kumar Jha with a fraudulent and dishonest intention had furnished false information regarding his length of stay at the address situated at H. No. 14, N Extension, Mohan Garden, Uttam Nagar, Delhi in his personal particular form while applying for passport and thereby attempted to induce the Regional passport Office to issue passport (a valuable security) to him; and State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 31 of 32 • That the accused had used the forged/altered ration card of his relative PW1 & PW2 in order to support his claim regarding his length of stay at the aforementioned address with the ultimate objective to get Indian Passport.
66. However, the prosecution remained unsuccessful in proving beyond reasonable doubt that it was the accused who had forged / altered the ration card Mark P-2 in the present case.
67. Hence, in view of above, the accused Tarkeshwar Kumar Jha S/o Krishan Kant stands convicted for the offence punishable u/s 420/511 IPC and 471 IPC. However, he stands acquitted for the offence punishable u/s 468 IPC.
68. Ordered accordingly.
Pronounced in open court, on this day of 27th October, 2023.
This judgment consists of 32 signed pages.
(ANIMESH KUMAR) MM-08/South-West Dwarka District NEW DELHI 27.10.2023 State Vs. Tarkeshwar Kumar Jha FIR No.137/2004, PS Uttam Nagar Judgment dated 27.10.2023 Page No. 32 of 32