Karnataka High Court
I K Narayana vs The State Of Karnataka on 15 November, 2012
Equivalent citations: 2013 CRI. L. J. 874, (2013) 124 ALLINDCAS 861 (KAR), 2013 (1) AIR KANT HCR 356, 2013 (124) ALLINDCAS 861, 2013 (81) ALLCRIC 15 SOC, (2013) 1 KANT LJ 269
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
®
DATED THIS THE 15th DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL REVISION PETITION NO.1067/2010
BETWEEN:
I.K. Narayana,
S/o. Kenchareddy,
Aged about 41 years,
R/o. No.447, 1st Cross,
13th Main, Manjunatha Nagara,
West of Chord Road, Bangalore.
... PETITIONER
(By Sri Dinesh Kumar K. Rao, for
Sri R.B. Deshpande, Adv.)
AND:
The State of Karnataka,
By Basaveshwaranagara Police.
... RESPONDENT
(By Sri Vijayakumar Majage, HCGP)
This Crl.R.P. is filed under S.397 r/w 401 Cr.P.C.,
praying to set aside the judgment and order dated
23.09.2009 passed by the V Addl. CMM., Bangalore in
C.C.No.29789/2007 and order dated 3.7.2010 passed by
the P.O., FTC-XVI, Bangalore City in Crl.A.No.771/2009
and acquit the petitioner of the charges levelled against
him.
2
This Crl.R.P. coming on for final hearing this day, the
Court made the following:
ORDER
The petitioner was convicted by the Trial Court, under Ss.419, 471, 472 and 420 r/w S.511 IPC. He was sentenced to undergo simple imprisonment for different periods and also pay fine, under the aforesaid sections. The substantive sentences were ordered to run concurrently. An appeal filed was dismissed by the Sessions Court with an observation regarding sentence under S.472 IPC. Assailing the said Judgments, this criminal revision petition has been filed.
2. In brief, the case of the prosecution was that, on 27.04.2007, at 11.30 a.m., the petitioner was found driving a Ambassador Car bearing registration No.MEX-42, with Karnataka Government nameplates having the Government emblem and stickers, on Siddaiah Puranik Road, within the limits of Basaveshwaranagar Police Station. On suspicion, when CW-1/PW-2 stopped the car and enquired, 3 the petitioner was found possessing seals and other documents and when questioned, he pretended to be an Assistant Commissioner of Commercial Taxes and produced an identification card and other documents and made to believe that he is a public servant. Upon enquiry, it was learnt from the department of Commercial Taxes, that the petitioner is not working in the department and thereby, dishonestly cheated both the public and the Government. CW-1/PW-2 lodged a complaint/Ex.P4. CW-10/PW-5 registered a case and sent the FIR/Ex.P22 to the Court and took up the investigation, which was later on taken over by CW- 11/PW-6. CW-11 laid the charge sheet.
3. The accused denied the charge. During trial, the prosecution in order to establish the charges, examined PWs.1 to 6, through whom Exs.P1 to P23 and MOs.1 to 18 was marked. The accused was examined under S.313 Cr.P.C. Accused denied the incriminating evidence and has not led any defence evidence. Learned Trial Judge, taking into consideration the record of the 4 case and the rival contentions, upon appreciation of the evidence, found the accused guilty of the charged offences. Hence, a Judgment of conviction was passed and the accused was sentenced to undergo imprisonment and also pay fine.
4. The accused challenged the said Judgment by filing Crl.A.No.771/2009. Three contentions urged for consideration by the accused, viz., (a) the Trial Court erred in not properly assessing the evidence available on record;
(b) the Trial Court erred in concluding that the ingredients of Ss.419, 471, 472, 473 and 420 r/w 511 IPC are made out and; (c) the Trial Court committed an error in holding that the prosecution has proved the guilt of the accused beyond all reasonable doubts, upon consideration, having been negated and the appeal having been dismissed, this criminal revision petition has been filed.
5. On behalf of the petitioner, Sri Dinesh Kumar K. Rao, learned advocate, raised the same contentions. He further contended that the prosecution has not proved the 5 alleged acts of 'forgery', since, 'the seals' were not sent to an expert for furnishing of opinion and also that the offence under S.467 IPC having not been proved, S.472 or 473 IPC is not attracted. By placing reliance on the decision in the case of RAM JAS VS. STATE OF U.P., AIR 1974 SC 1811, he contended that the finding of guilt recorded is illegal. Alternatively, by placing reliance on an order dated 21.03.2012 passed in Crl.A.No.882/2009 and connected cases, (Sri K.V. Harish & others Vs. State of Karnataka), he submitted that the substantive sentences ordered in the matter being harsh, a lenient view may be taken.
6. Sri Vijayakumar Majage, learned High Court Government Pleader, on the other hand, submitted that the Trial Court and the Appellate Court have correctly analyzed the factual position and in view of the credible evidence brought on record by way of examination of PWs.1, 2, 3, 5 & 6 and the exhibited documents and the marked MOs.1 to 18, there is no scope for interference in exercise of the revisional jurisdiction. He submitted that 6 the oral and documentary evidence brought on record by the prosecution has been correctly appreciated and in view of the concurrent finding of guilt recorded by the Courts below, the revision petition may be dismissed.
7. Perused the record. The point for determination is:
"Whether the conviction of the accused for the offences under Ss.419, 471, 473, 420 r/w S.511 IPC is justified?"
8. If a person cheats by pretending to be some other person, or representing that he is a person other than he, then, such person can be charged with the allegation of 'cheating by personation' (S.416 IPC) and punished under S.419 IPC.
9. If a person makes any false document with the intent to cause damage or injury to public or to any person, or to support any claim or title, then he can be charged for an offence of forgery (S.463 IPC) and can be punished under S.465 IPC. If a person commits forgery 7 for the purpose of cheating, then he can be punished under S.468 IPC.
10. If a person makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for committing any forgery which would be punishable under S.467 IPC or with such intent, is in possession any such seal, plate or other instrument, knowing the same to be counterfeit, then he is punishable under S.472 or S.473 IPC.
11. If a person, dishonestly induces another person to deliver any property or valuable security or to do or omit to do something which he would otherwise not have done or omitted, thereby commits an act of cheating and dishonestly deceives another, can be punished under S.420 IPC.
12. A person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence; and (ii) he, having made 8 preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence, but must be an act during the course of committing that offence, S.511 IPC is attracted.
13. The evidence brought on record of the case by the prosecution has been noticed in detail, in the Judgments passed by the Courts below.
14. PW-1, an Additional Commissioner of Commercial Taxes has said that, their office has not issued any identity card to a person by name 'I.K. Narayana' and no such person was working in their office. After verifying the rubber stamps, sent by the I.O., she has issued the report Ex.P1, stating that the rubber stamps and the impressions found in Ex.P3 was not issued by their office.
15. PW-2 is the complainant. He has said that, on 27.04.2007, the petitioner was found driving a Ambassador Car bearing No.MEX-42 (white colour) and 9 when questioned, the petitioner claimed that he is an Assistant Commissioner of Commercial Taxes and produced in proof thereof, an Identity Card / Ex.P2. He has said that the car had the plates showing the name- boards with the emblem of Karnataka Government. He has also said about the documents, seals and other material objects found in the car. He lodged the complaint Ex.P4. Evidence of PW-2 has been corroborated by PW- 3/Shiva Kumar, Head Constable, Traffic Police Station, Vijayanagar.
16. PW-5 has said about the registration of case and the investigation done by her. PW-6 has said about the continuation of investigation and laying of the charge sheet.
17. Since, nothing material was elicited in the cross-examination of the said witnesses, there being nothing placed on record to disbelieve the statements of PWs.1 to 3 and 5 & 6, which is trustworthy, the only inference that can be drawn is that the accused has 10 pretended to be a public servant holding the office of an Assistant Commissioner of Commercial Taxes, despite knowing that he does not hold such office and in the said assumed character has attempted to cheat the Government and the public. The offences under Ss.170 IPC and 419 IPC overlap each other. Cheating by personation (S.419 IPC) is an offence of general character, under which a person may pretend to be anyone, other than what he really is. But, cheating by pretending to be a public servant (S.170 IPC) is a specific offence, where one pretends to be a public servant and has all the ingredients of cheating by personation under S.419 IPC.
18. The petitioner is the registered owner of Ambassador Car MEX-42 (white colour). He was found driving the said vehicle on 27.04.2007 at 11.30 a.m., on Siddaiah Puranik Road, within the limits of Basaveshwaranagar Police Station. The car had the plates showing the name of the Karnataka Government, its emblem and stickers. The said car being a privately 11 owned vehicle, the accused could not have affixed to it, the plates showing the name of Government of Karnataka with the Government emblem and the stickers and used it on public road.
19. The petitioner was found in possession of Ex.P2, an identity card, resembling an ID card issued to its officers, by the Head of the Department of Commercial Taxes, Karnataka Government. Ex.P2 has the emblem of Government of Karnataka, name of the department - 'Commercial Tax Department', along with the photograph and name of the petitioner, his qualification, designation and also the office address of the Department of Commercial Taxes. That apart, Ex.P2 contains a signature, name and designation of the alleged issuing authority. PW- 1 has said that, Ex.P2 was not issued by their department. Ex.P2 has been proved to be a fake identity card. The petitioner was also found in possession of counterfeit seals, the impressions of which can be found in Ex.P3. 12
20. In the case of ABHAYANAND MISHRA Vs. STATE OF BIHAR- AIR 1961 SC 1698, the appellant was charged for the offences under S.420 read with S.511 IPC. The Trial Court acquitted the accused of the charge of forging certificates but convicted of the offence of 'attempting to cheat' in as much as, he, by false representations, deceived the University and induced the authorities to issue the admission card, which, if the fraud had not been detected, would have been ultimately delivered to the accused. In the appeal filed before the Supreme Court, the accused raised two contentions, namely, (i) that the facts found did not amount to the accused committing an attempt to cheat the University but amounted just to his making preparations to cheat the University and (ii) even if the accused had obtained the admission card and appeared at the examination, no offence of cheating under S.420 IPC would have been committed, as the University would not have suffered any harm to its reputation. While repelling the said two contentions and another contention that the facts proved 13 do not go beyond the stage of preparation for the commission of the offence of 'cheating' and do not make out the offence of attempting to cheat, it was held as follows:
" 11. ..... There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression 'attempt to commit an offence' and is exactly what the provisions of S.511 I.P.C., require. The relevant portion of S.511 I.P.C., is:
" Whoever attempts to commit an offence punishable by this Code ............. or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence shall, where no express provision is made by this Code for the punishment of such attempt be punished .....................".
These provisions require that it is only when one firstly, attempts to commit an offence and secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for 14 that attempt to commit the offence. It follows, therefore, that the act which would make the culprit's attempt to commit an offence punishable, must be an act which, by itself or in combination with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by S.511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence.
12. It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. "
21. In re Packianathan, AIR 1920 Madras 131, the accused was prosecuted for an offence under S.419 r/w S.511 of the Penal Code. He was going to Ceylon and he used the permit which stood in the name of one Kumaraswami, while his own name was J.Packianathan. On seeing the permit, the Health officer issued a Health Certificate. It was held that the Health Certificate was 15 'property' within the meaning of S.415 of the Penal Code and he was held guilty of an offence under S.419 IPC.
22. In the case of LOCAL GOVERNMENT Vs. GANGARAM, AIR 1922 Nagpur 221, the accused had obtained a certificate from the Deputy Inspector of Schools, by stating untruly, that he had passed the examination. It was held that the certificate was 'property' within the meaning of S.415 and that the accused was guilty of an offence punishable under S.420 IPC.
23. The remissness on the part of the Investigation Officer, in not sending 'the seals' to an expert for opinion, is not fatal to the prosecution case, since the offences under Ss.416, 419, 420 r/w 511 IPC have been well established. There is sufficient evidence establishing the substratum of the prosecution case.
24. In the case of RAM JAS (supra), the accused were acquitted by the Sessions Court, but, the order of acquittal was set aside in appeal by the High Court and the 16 accused were convicted and sentenced. In an appeal filed by the accused, noticing that there was delay in filing FIR and that the Appellate Court was not justified in interfering where the view taken by the Trial Court was reasonably possible, it was held that, the law only requires that the Appellate Court, in reversing the order of acquittal, should be slow and circumspect to disturb a finding of fact unless the Appellate Court is of the opinion that the finding of fact is wrong and not borne out by the evidence. The ratio of decision has no application to the instant case.
25. The Courts below, after noticing in detail the evidence brought on record, have rightly found the accused guilty of the offences under Ss.419, 471, 472, 473 and 420 r/w 511 IPC. There is no reason of whatsoever nature for me to take a different view, than the one arrived in the matter, by both the Courts below. The prosecution has established its case against the accused beyond all reasonable doubts and the conviction of the 17 petitioner for the offences under Ss.419, 471, 473, 420 r/w 511 IPC is justified.
26. Now, the question of sentence alone remains. In K.V.HARISH AND OTHERS (supra), the petitioners had been convicted by the Trial Court in respect of the offences punishable under Ss.420, 465 and 471 of IPC and each of them had been sentenced to various terms of imprisonment and payment of fine. The case of the prosecution against the petitioners therein was that, in order to secure appointment for the posts of Primary School Teachers, the accused had forged SSLC marks card/s and also produced Rural Education certificate/s, though they had studied at Government Junior College, Kolar and on the basis of the complaint lodged by the Deputy Director of Public Instructions, the accused were brought on trial. The Trial Court found the accused guilty which was confirmed in appeal. In the revision petition filed by the accused, the prayer was limited for modification of sentence on the ground that large number 18 of them were women candidates and that they did not receive any salary though they were appointed on the basis of the documents produced by them and that their services were terminated and the incident having taken place more that twelve years ago and they have come from villages and having been misguided, they prayed for modification of sentence of imprisonment by imposing higher fine. The prayer having not been opposed by the learned Government Pleader who appeared for the prosecution, noticing that more than twelve years has elapsed, while maintaining the conviction, the accused were sentenced to undergo a day's imprisonment/till raising of the Court and pay the fine. The decision has no application to the case on hand. In the instant case, the trial Court convicted and sentenced the accused, which was confirmed by the Appellate Court, with an observation that the accused should have been held guilty of offence under S.473 instead of S.472 IPC.19
27. The facts and evidence disclose the accused is an educated person, having had a good background. His father was a high rank officer and had served in the Government of Karnataka. There is no extenuating or mitigating circumstance of extreme poverty or illiteracy. There is prior preparation undertaken to commit the offences. In view of the premeditated intention of the accused, the case does not permit any leniency in the matter of sentence. Therefore, the sentence imposed does not warrant any interference.
In the result, the petition being devoid of merit is dismissed. Bail and surety bond executed are cancelled. The accused shall surrender to serve out the sentence.
Sd/-
JUDGE sac*