Karnataka High Court
K Gangaraju S/O Lt Chikkaboraiah vs State By Cbi Police on 13 June, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION NO.784 OF 2009
BETWEEN:
Sri. K.Gangaraju,
Son of Late Chikkaboraiah,
Aged about 56 years,
Working as Office Assistant 'C'
Indian Statistical Institute,
8th Mile, Mysore Road,
Bangalore - 560 059. ...PETITIONER
(By Shri. M.R. Nanjunda Gowda and Associates)
AND:
State by C.B.I. Police. ...RESPONDENT
(By Shri. Prasanna Kumar, Advocate for Shri C.H.Jadhav, Advocate )
*****
This Criminal Revision Petition filed under Section 397 and
401 Code of Criminal Procedure, 1973, by the Advocate for the
petitioner praying that this Hon'ble Court may be pleased to set aside
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the judgment and order of conviction passed against the petitioner on
30.12.2006 in C.C.No.20135/2005 on the file of the XVII Additional
Chief Metropolitan Magistrate, Bangalore and also set aside the
judgment and order dated 3.9.2009 passed in Criminal Appeal
No.28/2007 on the file of the XXI Additional City Civil and Sessions
Judge and Special Judge for CBI Cases, Bangalore.
This Criminal Revision Petition coming on for Hearing, this
day, the court passed the following:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for the respondent.
2. The facts of the case, briefly stated, are as follows:-
The petitioner was the accused in a case alleging offences punishable under Sections 468, 471 and 420 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC' for brevity). The allegations made are that in the year 1996, the petitioner in order to secure employment to the post of Supervisor (Grade-II) in the Indian Statistical Institute, had forged an Experience Certificate purported to 3 have been issued by an agency, known as M/s Aruna Gardeners and Land Scape Designers, as well as a birth certificate purported to have been issued by the Head Master, Government Lower Primary School, Kondahalli and had utilised such documents as being genuine and he was successful in securing the post by using the said documents and therefore, has committed offences punishable under the aforesaid provisions of the IPC for wrongful gain.
3. On the basis of those allegations, which were denied by the petitioner, the prosecution had examined 9 witnesses and produced documents marked as Exhibits P.1 to P.26. The petitioner, in turn, had produced documents marked as Exhibits D.1 to D.3, but he did not tender any oral evidence. On the basis of those allegations, the trial judge had formulated the following points for consideration:-
1. Whether the prosecution proves that accused while applying for the post of Supervisor (Grade II) 1996 in Indian Statistical Institute, Bangalore, 4 submitted false, bogus, created and forged experience certificate for having worked as an Assistant Supervisor from 8.2.1978 to 1.6.1986 purported to have been issued by M/s Aruna Gardeners and Landscape Designers and further, accused had forged and created school transfer certificate wherein his date of birth is purported to have been issued by Shri B.Lingaiah, Head Master, Government Lower Primary School, Kondahalli, to the effect that, accused is born on 20.12.1952 and submitted both forged certificates before competent authority for applying for the post of Supervisor (Grade-II) in 1986 in Indian Statistical Institute, Bangalore and thereby accused has committed an offence punishable under Section 468 IPC?
2. Whether the prosecution proves that, accused while applying for the post of Supervisor (Grade II) in 1996 in Indian Statistical Institute, Bangalore, submitted false, bogus, created and forged experience certificate for having worked as an Assistant Supervisor from 8.2.1978 to 1.6.1986 purported to 5 have been issued by M/s Aruna Gardeners and Landscape Designers and further, accused has forged and created school transfer Certificate having his date of birth as 20.12.1952 purported to have been issued by B.Lingaiah, Head Master, Government Lower Primary School, Kondahalli, and submitted them before competent authority for applying for the post of Supervisor (Grade-II) in 1986 in Indian Statistical Institute, Bangalore and produced the above said documents as genuine knowing that they are forged for the purpose of obtaining post of Supervisor (Grade-II) in Indian Statistial Institute, and thereby accused as committed an offence punishable under Section 471 IPC?
3. Whether the prosecution proves that, accused while applying for the post of Supervisor (Grade-II) in 1996 in Indian Statistical Institute, Bangalore submitted false, bogus, created and forged experience certificate for having worked as an Assistant Supervisor from 8.2.1978 to 1.6.1986 purported to 6 have been issued by M/s Aruna Gardeners and Landscape Designers and further, accused has forged, created and produced his date of birth purported to have been issued by B.Lingaiah, Head Master, Government Lower Primary School, Kondahalli, and submitted them before competent authority for applying for the post of Supervisor (Grade-II) in Indian in 1986 in Indian Statistical Institute, Bangalore and obtained service as Supervisor (Grade-II) in Indian Statistical Institute and thereby caused loss to the Government of Karnataka and the said institute and obtained corresponding gain for himself and thereby accused has committed an offence punishable under Section 420 IPC?
4. The trial court recorded its findings in the affirmative and convicted the petitioner and imposed sentence of varying terms. In that, for the offence under section 468 of the IPC, the petitioner was convicted and sentenced to pay a fine of Rs.2,000/- and was directed to undergo simple 7 imprisonment for 1 year and in default, to undergo simple imprisonment for 3 months; for the offence punishable under Section 471 of the IPC, he was directed to pay a fine of Rs.2,000/- and to undergo simple imprisonment for 1 year and in default, to undergo simple imprisonment for 3 months; for the offence under Section 420 IPC, he was sentenced to pay a fine of Rs.2,000/- and directed to undergo simple imprisonment for 1 year and in default of payment of fine, he was directed to undergo simple imprisonment for 3 months. These substantive sentences to run concurrently.
5. The same was challenged in appeal and the appellate court considered the appeal on merits. Insofar as the contention raised that the notification dated 1.12.2004 issued under Section 6 of the Delhi Special Police Establishment Act, 1946 (Hereinafter referred to as the '1946 Act' for brevity) on which 8 the prosecution had placed reliance, was invalid and that it had no force in the eye of law, was specifically addressed, apart from other grounds that were raised and the appellate court has affirmed the findings of the trial court. Insofar as the contention that the notification authorising the respondent -
CBI to investigate and prosecute the petitioner was concerned, the appellate court has held that even if there was any such irregularity in the issuance of the notification, the same has not caused any prejudice to the appellant nor has it occasioned in any failure of justice and accordingly has affirmed the judgment of the trial court. It is that which is under challenge in the present petition.
6. The learned counsel for the petitioner would contend firstly, that both the courts below have not taken into consideration the defence of the appellant, namely, that he 9 worked as a Supervisor of M/s Aruna Gardeners and Land Scape Designers, which had its nursery at Kondahalli, with effect from the year 1978 and the owner of the said concern was residing at No.264, 2nd Main Road, 7th Cross, Prakash Nagar, Bangalore and he was conducting the business at the said premises and even though he has secured employment with the Bangalore Water Supply and Sewerage Board, he had continued to run the said business, has been negated, on the basis of the evidence of PW.4, who was said to be the son of the owner of the premises where the proprietor of M/s Aruna Gardeners and Land Scape Designers was residing, had stated that no such person has ever resided in the premises. This, according to the learned counsel for the petitioner, was an unfair finding, in the absence of examination of the owner of the premises. The further defence of the petitioner was that the said proprietor had not displayed the name board of his concern at the said 10 premises at Prakash Nagar and that by itself did not establish that he was not running the business. The experience certificate having been issued, has been negated unfairly and to the prejudice of the petitioner.
It is further contended that the experience certificate, which could have been established by examining the author thereof, was again an imposition, which his employer had never insisted upon. The same having been accepted by his employer, the courts below were unfair in negating the same.
The learned counsel would further contend that the birth certificate that was issued by the Head Master, Lingaiah of the Government Lower Primary School, Kondahalli, has been characteriesed as a forged document, without there being any basis for such a conclusion. The prosecution had not discharged the initial burden that Exhibit P.6 was a forged document, but were only concerned with establishing that no such concern 11 existed, merely on the basis of the evidence of PW.4. The learned counsel would also draw attention to the admission by PW.4, that he had seen the petitioner visit the premises at Prakash Nagar. This would demonstrate that the petitioner would have had no occasion to visit the premises at Prakash Nagar, if not for the fact that he was employed by the proprietor of M/s Aruna Gardeners and Land Scape Designers. Insofar as the birth certificate is concerned, it is established that it is a certificate issued by the Government Lower Primary School, indicating the date of birth of the petitioner as 20.12.1952. Exhibit P.5 also bears the admission No.19/1958-59, whereas the prosecution had sought to defeat the said document for producing Exhibit P.20 purporting to be an Admission Register and the specific entry at Exhibit P.20(b) which did not belong to the petitioner at all, as it bears registration no.70/1951-52. The more glaring circumstance is 12 that in all the exhibits produced by the prosecution, to demonstrate that the genuine date of birth of the petitioner was 8.5.1946, the entries pertain to a person by the same name Gangaraju as the petitioner, but significantly, the said Gangaraju also carries the initial 'K', which has been completely overlooked by both the courts below in holding that Exhibit P.5 juxtaposed against Exhibit P.20 and would highlight that Exhibit P.5 was a forged document, which is an unfair manner of appreciating the evidence on record and has resulted in a miscarriage of justice. Therefore, in the absence of any acceptable evidence to demonstrate that the petitioner had indeed forged Exhibit P.6 and any birth certificate signed by B.Lingaiah, therefore, results in a miscarriage of justice. The learned counsel would also contend that to demonstrate that the certificate signed by B.Lingaiah was a forged document, PW.5 has been examined. PW.5 was the son of B.Lingaiah, who has 13 not categorically stated that the signature that appears on Exhibit P.5 is not that of his father. On the other hand, in his cross-examination he has stated that he must see whether or not the signature on Exhibit P.5 is that of his father. In the face of such a doubtful opinion expressed by the witness, the courts below have committed a cardinal error, in holding that the forgery has been established in the face of such evidence. The learned counsel would further contend that the entire genesis of the allegations against the petitioner was the fact that the petitioner was actively involved in the activities of Kannada Sangha of the Indian Statistical Institute, where there was a running feud between the group of Tamilians and the Kannadigas and one person, by name Rayappan, who was a Tamilian Christian had a strong grudge against the petitioner and who was instrumental in earlier instituting a complaint against the petitioner, which had been promptly challenged by 14 the petitioner before this court and this court has summarily allowed the petition at the stage of admission, on the ground that the said Rayappan was not competent to institute any such proceedings against the petitioner. Even if there was truth in the allegations, it was for the institution , of which the petitioner had taken advantage, to have taken any steps insofar as the allegation of criminal misconduct is concerned and therefore, he would submit that once the petitioner has been accused of a crime and honourably discharged, the question of institution of a second complaint on the basis of an anonymous letter, was not tenable. In this regard, the respondent - CBI has suppressed the fact that there was an anonymous letter apparently written by persons, such as Rayappa, who was ill- disposed towards the petitioner and it has been elicited in cross- examination that it was on the basis of an anonymous letter, that the entire proceedings had been initiated against the 15 petitioner. Such suspicion goes to the root of the matter and would vitiate the entire proceedings. This aspect of the matter has been glossed over by both the courts below and therefore it has resulted in miscarriage of justice.
It is further contended that Section 6 of the 1946 Act requires that the consent of the State Government be obtained in order to exercise powers and jurisdiction in an area and without the consent of the State Government, any such investigation would be bad in law. In the instant case, no such sanction or consent has been obtained by the respondent and therefore, the entire proceedings would stand vitiated for want of such consent. The appellate court, having lightly rejected such contention, on the ground that it does not cause prejudice to the petitioner nor has any failure of justice occasioned on account of such want of consent, is prejudicial to the petitioner, especially, when he is mulcted with penal consequences. 16 Further, in view of the earlier rejection of the complaint on the ground that the allegations would not be tenable against the petitioner, the proceedings initiated by the respondent on the very same allegations results in a double jeopardy and hence the entire proceedings would have to be set at naught. In any event, the learned counsel would submit that apart from the legal position, the findings of fact are without any basis and rest on premises, which would not stand the test of law and therefore, pray that the petition be allowed and the onerous punishment imposed in proceedings that have gone on for almost two decades, results in grave prejudice to the petitioner and therefore seeks that the petition be allowed. In the alternative, the learned counsel would further plead that even if this court were to be of the opinion that findings of fact cannot be reconsidered on reappreciation of evidence as it were in revision proceedings, it would still be open for this court to 17 consider the case on humanitarian grounds and to reduce the punishment substantially, as the petitioner is now in the evening of his life and would suffer grave prejudice in being denied his service benefits.
7. On the other hand, the learned Counsel for the respondent seeks to justify the findings of fact and would submit that since there is hardly any room for contending that there has been an error of jurisdiction or there are findings, which are not relatable to the material on record, the question of interference with the findings of fact would not be tenable, as is the settled position. The learned counsel would submit that insofar as the technical objection as regards want of consent under section 6 of the 1946 Act is concerned, he would point out that the complaint of want of consent is without reference to certain circumstance. He would submit that there was a blank 18 consent granted by the State Government in favour of the Delhi Police Establishment prior to 1993, whereby the authority, such as the CBI, did not require specific consent in any given case, by virtue of such a blank consent having been provided, under a Notification and it was for a brief period that the State Government though it fit to withdraw such blank consent and insist upon individual consent being obtained in a given case. Thereafter, the State Government has reverted to the position where there is a blank consent in respect of Central Government Employees and other employees of Central Government Undertakings. In the instant case, the petitioner was a Central Government employee. There was hence no difficulty in the authority proceeding on the basis of the blank consent granted under the relevant notification. It is only in cases where there was brief lull in the blank consent notification being applicable, that the respondent was required 19 to obtain consent on a case by case basis. The present case is one of such. Therefore, want of consent is not a lacuna that is present in the case on hand. Hence, the finding of the appellate court that no injustice has been caused nor does any irregularity go to the root of the matter, is besides the point. On the other hand, no such consent was required in view of the blank consent that was obtained. Insofar as the findings of fact are concerned, though in revision, it would hardly possible to reappreciate the material evidence on record, unless a serious infirmity in the appreciation of the same can be demonstrated on the other hand, it is a fit case where the findings would have to be affirmed as the findings are informed with reasons and are with reference to cogent material, which cannot be disturbed. As for instance, it is sought to be pointed out that though the witness, who has produced the SSLC marks card and the pertinent register, has been treated as a hostile witness by the 20 respondent - CBI, the fact remains that the record is not effaced. As per the record, the date of birth indicated in the relevant SSLC marks card is 8.5.1946. The learned counsel for the petitioner seeking to contend that it pertains to one Gangaraju K, and not to the present petitioner, is a circumstance which has not been confronted to the said witness. It is for the first time that it is raised in the present petition. Secondly, it is further pointed out that going by Exhibit P.5, which indicates the date of birth of the petitioner as 20.12.1952, the petitioner was about 6 years old during the year 1958-59, which would be inconsistent with the petitioner's claim that he was in the fourth standard in the year 1958-59. If he was six years old as of the year 1958-59, he would have to be admitted to school at the age of 2 to be in the fourth standard in the year 1958-59. But however, if the petitioner's date of birth is taken as 8.5.1946, it would be consistent with the record, in that, he would have 21 been admitted to school at the age of 6 and he would have been in fourth standard in the year 1958-59. PW-4 has been examined in support of Exhibit P.5. It is for the reason that his father, Head Master, had died by then and therefore, the only available witness, who could speak to the signature of his father was PW.5, who was competent to do so and his positive evidence is to the effect that Exhibit P.5 does not contain his father's signature. A stray admission in cross-examination by itself, would not defeat the positive evidence tendered by him with reference to his father's signature. The learned counsel would point out that PWs 5,6 and 9 would clearly demonstrate that the documents produced by the petitioner were forged and false and are inconsistent with the official records maintained. PWs - 5, 6 and 9 are independent witnesses, who had no mala fides or grudge against the petitioner and were in no way connected with the petitioner or his affairs. Therefore, the 22 learned counsel would submit that the courts below have addressed the facts and circumstances at length and it is only thereafter that the infirmities in the documents sought to be relied upon by the petitioner have been highlighted.
Insofar as the contention that whether the proprietor of M/s Aruna Gardeners and Land Scape Designers was not examined is concerned, it is relevant that the owner of the said premises had ever resided at that place. The son of the owner was competent to say if any such firm was in existence and whether the name board of the firm was displayed at the said premises nor is there any other evidence produced to indicate that the proprietor of the said concern was ever resided therein. In that view of the matter, it was for the petitioner to tender rebuttal evidence to dispel the grave suspicion cast over the documents that were produced, when the same are juxtaposed against the documents that were produced by the prosecution 23 from the custody of the competent authorities and therefore, the acceptance of the experience certificate by the employer, by itself, would not be the basis for accepting the genuineness thereof. It would have to be tested against the existence of the firm M/s Aruna Gardeners and Land Scape Designers and that the petitioner was indeed born on 20th December 1952. It is in this vein that the learned counsel would seek to meet the contentions put-forth by the learned counsel for the petitioner.
8. In the light of the above rival contentions, as rightly contended by the learned counsel for the respondent, the findings of fact by both the courts below being concurrent, the question of interference in revision could only be contemplated in exceptional circumstances, where serious infirmities such as, the findings being arrived at without any basis or findings being arrived at contrary to the material on record or other extreme case of want of jurisdiction, is evident. There is no such 24 circumstance forthcoming. The learned counsel would seek to contend that a different view is possible even on the basis of the material that is made available by the prosecution, which has not been tested by way of cross-examination of the competent witnesses. As for instance, the initials of the person whose certificates have been produced were never questioned by the petitioner at the relevant point of time. It is for the first time raised in this petition. This can never be addressed in a revision petition. Similarly other infirmities which are sought to be addressed by the learned counsel for the petitioner were appropriate circumstances where the petitioner was at liberty to tender rebuttal evidence, which the petitioner has not chosen to do. Insofar as the consent or want of consent is concerned, given the fact that as on date, there is no requirement of consent notification on case by case basis, is sufficient ground to accept the contention of the learned counsel for the respondent that at 25 the relevant point of time, there was a similar notification that was issued by the concerned, which did not require that the respondent seek a consent order from the competent authority in respect of the petitioner's case. In any event, it is not denied that the petitioner is a Central Government servant and would be susceptible to the jurisdiction of the respondent as on date. Therefore, want of consent under Section 6 of the 1946 Act is also not a ground on which there can be any interference by this court. The cases sought to be relied upon by the learned counsel for the petitioner to contend that there is double jeopardy insofar as an earlier complaint by Rayappan was dismissed by this court on challenge of the complaint and therefore, a second complaint was not tenable, is also not a circumstance that would enure to the benefit of the petitioner. The case which is cited by the learned Counsel in the case of ...vs.State of Gujarat related to two parallel complaints being filed in a summons 26 case and one having been dismissed, the other was held is not maintainable as there is no question of framing a charge and conducting a trial in those proceedings. It is in that background that the court had held as rightly pointed out by the learned counsel for the respondent, the question of double jeopardy would arise when there has been a full-fledged criminal prosecution resulting in acquittal with a second prosecution was not possible. In the instant case, admittedly, the complaint was quashed at the initial stage on the ground that the complaint was invalid or that the complainant was an incompetent person to initiate proceedings. That did not absolve the petitioner of liability and therefore, the complaint was albeit instituted on an anonymous complaint was yet maintainable as the respondent is not precluded from initiating the proceedings suo motu on the basis of the information received and when that opinion has been found to be credible 27 with reference to the material on record it cannot be said that there is double jeopardy. Therefore, the petition lacks merit and is dismissed.
Sd/-
JUDGE nv