Calcutta High Court (Appellete Side)
Ashutosh Khanra vs The State Of West Bengal And Another on 24 June, 2016
Author: R. K. Bag
Bench: Ranjit Kumar Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Ranjit Kumar Bag.
C.R.R. No. 1458 of 2008
Ashutosh Khanra
.........petitioner.
Vs.
The State of West Bengal and another
.......opposite parties.
For the Petitioner : Mr.D.P. Adhikari
Mr. J.H. Mallick
For the State : Mr. Imran Ali.
Heard on : 21st June, 2016
Judgment on : 24th June, 2016
R. K. Bag, J.
The petitioner has preferred this revision under Section 401 read with Section 482 of the Code of Criminal Procedure challenging the judgment and order dated March 31, 2008 passed by learned Additional Sessions Judge, 1st Court, Tamluk in Criminal Appeal No. 9 of 2005 by affirming judgment and order of conviction and sentence dated January 31, 2005 passed by learned Sub-Divisional Judicial Magistrate, Tamluk in G.R. No. 71 of 1985 corresponding T.R. No. 77 of 1993, by which the appellant was convicted for the offence punishable under Sections 420/467/471 of the Indian Penal Code and sentenced to suffer imprisonment for various terms and to pay fine - with direction that all the sentences will run concurrently.
2. The backdrop of the present revisional application is as follows: One Pranab Kumar Ghosal, Vice President of the Managing Committee of Ichhapur Panchagrami Junior High School filed a written complaint before the Officer-in-Charge of Mahisadal Police Station on January 20, 1985 on the basis of which Mahisadal Police Station case No. 5 dated January 20, 1985 was registered. It is alleged in the said complaint that the appellant was an Assistant Teacher of Ichhapur Panchagrami Junior High School. He submitted marksheet to the school authority to the effect that he passed B.Ed. Examination in 1979 and claimed increment and allowances accordingly. The marksheet of B.Ed. Examination produced by the appellant was suspected by the school authority who had ascertained from the Controller of Examination of Calcutta University about the result of B.Ed. Examination of the Appellant. On November 16, 1983 the Controller of Examination, University of Calcutta had communicated to the Headmaster of the school that the appellant failed in B.Ed. Examination of the year 1979. Subsequently on August 17, 1984 the Secretary of the Managing Committee of Ichhapur Panchgrami Junior High School received one letter from Professor-in-charge of Tamralipta Mahavidyalaya which disclosed that the appellant failed in B.Ed. Examination for the year 1979. The school authority also collected duplicate marksheet of the appellant from the University of Calcutta, which disclosed that the appellant failed in B.Ed. Examination for the year 1997. The police investigated the criminal case and submitted charge sheet against the appellant for the offence punishable under Sections 471/403/420/467 of the Indian Penal Code.
3. On conclusion of trial the learned Magistrate convicted the appellant for the offence punishable under Section 467/471 of the Indian Penal Code and sentenced him to imprisonment for various terms and to pay fine - with direction that all the sentences will run concurrently. The said judgment and order of conviction and sentence passed by leaned Magistrate was challenged before the Court of Sessions by preferring Criminal Appeal No. 9 of 2005. On March 31, 2008 learned Additional Sessions Judge, 1st Court, Tamluk disposed of the said criminal appeal by affirming the order of conviction of the appellant under Section 420 of the Indian Penal Code and by setting aside the order of conviction of the appellant under Section 467/471 of the Indian Penal Code. The said judgment and order dated March 31, 2008 passed by learned Additional Sessions Judge, 1st Court, Tamluk in Criminal Appeal No. 9 of 2005 is under challenge in this revision.
4. Mr. D.P. Adhikari learned Counsel for the appellant contends that learned Judge of the Appellate Court acquitted the appellant of the charge under Section 467/471 of the Indian Penal Code by holding that the marksheet produced by the appellant before the school authority is not forged document and as such the said marksheet cannot be the basis for convicting the appellant for the offence punishable under Section 420 of the Indian Penal Code. He further submits that there was no intention on the part of the appellant to deceive school authority from the very inception of the transaction, as the appellant would have earned the increment and allowances on completion of 10 years of service in the year 1981 and as such the appellant never intended to deceive the school authority by producing the marksheet which he had collected from Tamralipta Mahavidyalaya. According to Mr. Adhikari, the Appellate Court cannot hold the appellant guilty of the charge under Section 420 of the Indian Penal Code for obtaining financial benefits on the basis of the marksheet of B.Ed. Examination 1979, which was found to be not forged by the said Appellate Court for recording acquittal of the appellant from the charge under Section 467/471 of the Indian Penal Code. He has relied on the decision of the Supreme Court in Amritlal Ratilala Mehta v. State of Gujarat reported in AIR 1980 SC 301 in support of his above contention. Mr. Adhikari has also urged this Court to consider that the appellant has returned excess salary received from the school and his service was terminated and now he is aged about 71 years old.
5. Mr. Imran Ali learned Counsel representing the State contends that the appellant has claimed the marksheet (Exhibit-3) as original and claimed increment on basic pay and allowances for passing out B.Ed. Examination, though he knew that he failed in B.Ed. Examination of the year 1979. He further submits that on November 25, 1983 the appellant filed an application before the Secretary of Ichhapur Panchgrami Junior High School by admitting that he had drawn excess salary from the school, though he failed in B.Ed. Examination and had undertaken to return the excess money to the school and the said document is marked Exhibit-9. Mr. Ali further submits that the false marksheet (Exhibit-3) submitted by the appellant before the school authority is forged one and the appellant dishonestly induced the school authority to disburse increment and allowances to the appellant even when he was not entitled to claim the same due to his failure in B.Ed. Examination of 1979. According to Mr. Ali, the appellant does not deserve any sympathy of the Court for his old age or for termination of his service as an Assistant Teacher of Ichhapur Panchgrami Junior High School for committing the crime.
6. It appears from Judgment and order dated March 31, 2005 passed learned Sub-Divisional Judicial Magistrate, Tamluk in G.R. No. 71 of 1985 that the Trial Court found the appellant guilty of the charge under Sections 420/467/471 of the Indian Penal Code. The Trial Court convicted the appellant for the offence under Section 420 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs. 5,000/- in default to suffer imprisonment for six months. The appellant was also convicted for the offence under Section 467 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 5,000/-, in default to suffer imprisonment for six months. He was also convicted for the offence under Section 471 of the Indian Penal Code and was sentenced to suffer imprisonment for two years and to pay fine of Rs. 4,000/-, in default to suffer imprisonment for four months. The Trial Court directed the appellant to serve all the sentences concurrently.
7. Learned Judge of the Appellate Court affirmed the order of conviction of the appellant for the offence punishable under Section 420 of the Indian Penal Code. It also appears from the said judgment of the Appellate Court that Learned Judge was satisfied that the marksheet of B.Ed. Examination for the year 1979 (Exhibit-3) produced by the appellant before the school authority was claimed by the appellant to be genuine and original, though the said document is found to be false from the evidence on record. However, the Appellate Court could not come to the conclusion that the said marksheet of B.Ed. Examination (Exhibit-3) is forged document only because the prosecution failed to obtain any expert opinion in this regard. This finding of the Appellate Court is not sustainable in law.
8. Forgery as defined in Section 463 of the Indian Penal Code is as follows:
"463. Forgery: 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".
According to the above definition of forgery, any person who makes any false document to claim any property commits forgery. It is established from the letter of Controller of Examination, University of Calcutta (Exhibit-5), duplicate marksheet issued by University of Calcutta disclosing marks obtained by the appellant in B.Ed. Examination of 1979 (Exhibit-6) and letter issued by the Professor-in- Charge, Tamralipta Mahavidyalaya disclosing the marks obtained by the appellant in B.Ed. Examination of 1979 (Exhibit-7) that the appellant failed in the B.Ed. Examination for the year 1979. However, the appellant produced a marksheet of B.Ed. Examination for the year 1979 before the School Authority (Exhibit-3) by showing that he passed out B.Ed. Examination and claimed the marksheet as original by putting endorsement and signature on the reverse of the said marksheet (Exhibit-3). It is, thus, established from the evidence on record that the appellant had drawn increment and allowances from the school on the basis of the marksheet (Exhibit-3) which is found to be false from the evidence on record. A false document is defined in Section 464 of the Indian Penal Code, which is as follows:
"464. Making a false document: A person is said to make a false document or false electronic record:
First: Who dishonestly or fraudulently:
(a) makes, signs, seals or executes a document or part of a document ;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the 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 that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other persons, 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 to 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 practised upon him, he does not know the contents of the document or electronic record or a nature of the alteration"
9. In the instant case the appellant has dishonestly made endorsement and signature on the reverse of the marksheet of B.Ed. Examination for the year 1979 (Exhibit-3) with intention to cause the same to be believed as genuine document for the purpose of drawing increment and allowances from the school. Naturally, the said marksheet produced by the appellant (Exhibit-3) is a forged document and the appellant must be held to be guilty of committing offence punishable under Section 467/471 of the Indian Penal Code even in the absence of opinion of the expert. So, the findings of the Appellate Court, in this regard is not sustainable in law as I have already pointed out. However, I cannot reverse the order of acquittal of the appellant from the offence punishable under Section 467/471 of the Indian Penal Code into an order of conviction as the Revisional Court. In Amritlal Rathilal Mehta v. State of Gujarat reported in AIR 1980 SC 301, it is held by the Supreme Court in Paragraph-4 that the document on the basis of which the accused was acquitted under Section 477A of the Indian Penal Code cannot be made the basis for holding him guilty of the charge under Section 420 of the Indian Penal Code. In this report the entries were made by the accused in the gate-passes inadvertently and negligently and thereby the Court acquitted him of the charge under Section 477A of the Indian Penal Code and as such, the accused cannot be held guilty of the charge under Section 420 of the Indian Penal Code for the same entries in the gate-passes and as such the Supreme Court acquitted the accused of the charge under Section 420 of the Indian Penal Code. In the instant case, the appellant was not acquitted of the charge under Section 467/471 of the Indian Penal Code on the ground that the false marksheet of the B.Ed. Examination (Exhibit-3) produced by the appellant was not sent to the expert for obtaining opinion and not because the said document was found to be genuine and not false. Even the Appellate Court has formed the opinion that the said marksheet (Exhibit-3) produced by the appellant is false and not genuine. The Appellate Court has relied on the said false marksheet (Exhibit-3) for formation of opinion that there was dishonest intention on the part of the appellant from the very inception of the transaction to deceive the School Authority by drawing excess increment and allowances as Assistant Teacher, who claimed to have passed out B.Ed. Examination of 1979. So, the facts of the present case are clearly distinguishable from the facts of Amritlal Rathilal Mehta v. State of Gujarat (supra) and as such the ratio of the said report will not be applicable in the facts of the present case.
10. In view of my above findings, I cannot persuade myself to interfere in the judgment and order of conviction and sentence passed by the Appellate Court. The old age of the appellant or the fact of termination of service of the appellant cannot be a ground for showing leniency in reducing the sentence imposed by the learned Judge of the Appellate Court. I have already observed that as a Revisional Court, I cannot exercise my power to convert the order of acquittal of the appellant under Section 467/471 of the Indian Penal Code into an order of conviction.
11. As a result, the revisional application is dismissed. The judgment and order dated March 31, 2008 passed by the learned Additional Sessions Judge, 1st Court, Tamluk in Criminal Appeal No. 9 of 2005 is hereby affirmed.
Let a copy of this judgment and order be sent down to the Learned Court below along with Lower Court Record for favour of information and necessary action.
The urgent photostat certified copy of the judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
(R.K. Bag, J.)