Karnataka High Court
M J Krishne Gowda vs State Of Karnataka By on 27 January, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REVISION PETITION NO.1189 OF 2011
C/W
CRIMINAL REVISION PETITION NO.1228 OF 2011
CRL.RP NO.1189/2011:
BETWEEN:-
1. M.J.KRISHNE GOWDA
S/O GUNDE GOWDA
AGED ABOUT 56 YEARS,
DODDAMAGGE VILLAGE,
ARAKALAGUDU TALUK,
HASSAN DISTRICT.
2. THIMME GOWDA
S/O APPAJI GOWDA
AGED ABOUT 59 YEARS,
NELAMANE VILLAGE,
KASABA HOBLI, ARAKALAGUDU TALUK,
HASSAN DISTRICT. .... PETITIONERS
(BY SRI B.R.MANJUNATH, ADVOCATE)
AND:-
STATE OF KARNATAKA
BY ARAKALAGUDU POLICE.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
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THIS CRIMINAL REVISION PETITION FILED UNDER
SECTION 397 CR.P.C., PRAYING TO SET ASIDE THE ORDER
DATED 02.12.2009 PASSED BY THE CIVIL JUDGE (SR.DN.) AND
JMFC., ARAKALAGUDU IN C.C.NO.18/08 AND ALSO ORDER
DATED 15.10.2011 PASSED BY THE P.O., FTC, HASSAN IN
CRL.A.NO.109/2009.
CRL.RP 1228/2011:
BETWEEN:
SRI EERAPPA
S/O NANJUNDAPPA,
AGED ABOUT 73 YEARS,
R/AT VADDARAHALLI,
DODDAMAGGE HOBLI,
HARAKALAGUDU TALUK.
...PETITIONER
(BY SRI M.ASHOK KUMAR, ADVOCATE)
AND:
STATE OF KARNATAKA
BY ARAKALAGUDU POLICE. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
****
THIS CRIMINAL REVISION PETITION FILED UNDER
SECTION 397 CR.P.C., PRAYING TO SET ASIDE THE ORDER
DATED 2.12.2009 PASSED BY THE JMFC., ARAKALAGUD IN
C.C.NO.18/08(471/01) AND ORDER DATED 15.10.2011 PASSED
BY THE P.O., FTC-II, HASSAN IN CRL.A.NO.109/2009.
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THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 13.01.2017, COMING
ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, JOHN
MICHAEL CUNHA J., MADE THE FOLLOWING:
ORDER
These revision petitions are directed against the concurrent judgments rendered in C.C.No.18/2008 (471/2001) dated 2.12.2009 by the Civil Judge (Sr.Dn.) and JMFC, Arakalgud and Crl.A.109/2009 dated 15.10.2011 passed by the II Fast Track and Sessions Judge, Hassan. Both the courts below have found the petitioners herein guilty of the offences punishable under sections 465, 468 and section 120B of Indian Penal Code and are sentenced to undergo imprisonment for the period of one year and fine of Rs.5,000/-, in default, one month SI under section 465 of Indian Penal Code; 2 years of SI and fine of Rs.5,000/-, in default, one month simple imprisonment for the offence under section 468 Indian Penal Code; SI of two months and fine of Rs.1,000/- in default 15 days SI for the offence under section 120B r/w. 34 of Indian Penal Code.
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2. The petitioners in Criminal Revision Petition No.1189/2011 are accused Nos.2 and 3 and the petitioner in Crl.R.P.1228/2011 is accused No.1 before the lower court and they will be referred in the same ranking in this judgment.
3. The SHO, Arakalgud Police Station registered a case against accused Nos.1 to 3 on the basis of the complaint filed by one Nanjundaswamy PW-7, alleging that accused No.1 in connivance with accused Nos.2 and 3 created a false sale deed forging the signature of the complainant (PW.7) and caused registration of the sale deed in respect of the immovable property belonging to the complainant comprised in Sy.No.5/1 measuring 22 guntas of Vaddarahalli village and caused registration of the said sale deed impersonating the complainant and the witnesses. The IO took up the investigation and laid the charge sheet against all the accused for the offence punishable under sections 419, 465, 468, 120B r/w. 34 of Indian Penal Code. The learned Magistrate, after the evidence and arguments, convicted the accused for the offences punishable 5 under sections 465, 468, 120B r/w. 34 of Indian Penal Code and acquitted them of the offence punishable under section 419 of Indian Penal Code and sentenced them as above.
4. The accused/petitioners preferred an appeal under section 374 of Cr.P.C. in Crl.A.No.109/2009 and the learned II Fast Track and Sessions Judge, Hassan dismissed the appeal by the impugned judgment and order dated 15.10.2011 confirming the judgment of conviction dated 2.12.2009 passed by the Civil Judge (Sr.Dn.) and JMFC, Arakalgud, in CC.No.19/2008.
5. Feeling aggrieved by the impugned judgments and order of sentence, the petitioners have preferred these revisions seeking to set aside the impugned judgment and orders.
6. I have heard the learned counsel for the petitioners and the learned HCGP.
7. The learned counsel appearing for the petitioners have raised three fold contentions. Firstly, it is contended that the learned Magistrate and the Sessions Court having acquitted the petitioners for the alleged offence under section 419 of 6 Indian Penal Code, in the absence of any proof of alleged impersonation, the petitioners could not have been convicted for the alleged offences under sections 465, 468, 120B r/w. 34 of Indian Penal Code. Secondly, it is the submission of the learned counsel that the seizure of the document Ex.P3 is not proved in accordance with law, and therefore, both the Courts have erred in placing reliance on Ex.P3. It is the submission of the learned counsel that if Ex.P3 is excluded from consideration, there is absolutely no material in proof of the charges leveled against the petitioners. Thirdly, it is contended that the prosecution has not produced any acceptable evidence in proof of the alleged conspiracy and therefore, the conviction recorded by Courts below on this charge is liable to be set aside.
8. The learned HCGP however has argued in support of the impugned findings recorded by the courts below.
9. On going through the evidence produced by the prosecution and the reasoning assigned by the courts below, I do not find any merit or substance in the contentions urged by the learned counsel for the petitioners. Coming to the first 7 contention urged by the learned counsel for the petitioners, it is to be noted that the offences charged against the accused are independent offences. Offence under Section 419 is not dependent upon the offences under Sections 465, 468 or 120B of Indian Penal Code. The ingredients of Section 416 Indian Penal Code are:-
1. Pretention by a person to be some other person;
2. Knowingly substituting one person for another; &
3. Representation that he or any other person is a real person.
10. It is only the person who impersonates the other is liable for prosecution. In the instant case, the case of the prosecution is that some unknown persons were procured by accused No.1 to impersonate the real vendors. Unfortunately, inspite of these allegations, the investigating agency appears to have not made any efforts to trace the impersonators or to send them up for trial. Nevertheless, there are no allegations that the accused herein signed the deed impersonating the vendors. In the absence of such allegation, charge under Section 419 of 8 Indian Penal Code should not have been framed against the accused. Be that it may, the Trial Court having found no material in support of the charge under Section 419 Cr.P.C. the acquittal of the accused under the said charge does not provide a lever to the accused to contend that the other offences charged against them loose their efficacy. Therefore the argument of the learned counsel for the petitioner that on account of the acquittal of the accused of the charge under section 419 of Indian Penal Code, they are entitled to be acquitted of the offences under sections 465, 468, 120B r/w 34 Indian Penal Code cannot be accepted.
11. Insofar as, the charge under Sections 465, 468, 120B r/w 34 Indian Penal Code is concerned, the material on record undoubtedly establish that the prosecution has proved the ingredients of these offences with cogent and convincing evidence. The evidence produced by the prosecution establish beyond reasonable doubt that by procuring unknown persons, accused No.1 created a false document as per Ex-P3 making it to appear that it was executed by PW-7 thereby establishing the guilt of the accused for the offence under Section 465 of Indian 9 Penal Code. The facts proved in evidence clearly establish that the first accused made a false document with intent to create a document in his name in respect of the properties belonging to PW-7.
12. In order to make out an offence punishable under section 465 Indian Penal Code, the prosecution is required to prove that the accused has "made" or "signed" a false document with the intention of causing it to be believed that such document or part of the document 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. In the instant case, the prosecution has proved beyond reasonable doubt that accused No.1 made Ex-P3 sale deed with the assistance of impersonators intending it to be believed that it was made or signed or executed by PW-7, thus making him liable for the offence punishable under section 465 Indian Penal Code. Likewise, it is proved in evidence that accused No.2 and 3 attested the signatures of the impersonators knowing fully well 10 that the said signatories were not the real owners or the vendors of the property covered under Ex-P3, thus, establishing the ingredients of Section 468, 120B of Indian Penal Code. Therefore, the first contention of the learned counsel for the petitioner is liable to be rejected.
13. Coming to the second contention that that seizure of Ex-P3 is not proved in accordance with law is concerned, reference may be made to the evidence of the Sub-Registrar PW-3 who has already stated that Ex.P3, the certified copy of a sale deed was issued from the Sub-Registrar's office. It is issued in accordance with Section 76 of the Evidence Act and is admissible under Section 77 of the Evidence Act. It was seized during investigation and made part of the Final Report. PW-3 has specifically stated in her evidence that the Original of Ex.P3 was collected by accused No.1. This statement is not denied or disputed in the cross-examination. In the light of this evidence, the contention of the learned counsel for the petitioner that the seizure of Ex-P1 is not proved in accordance with law cannot be accepted. Even if it is assumed for the sake of argument that the 11 seizure formalities are not followed by the Investigation Officer or the circumstance of seizure of the documents are not explained by the Investigation Officer during trial, that by itself does not vitiate the proceedings nor does it weaken the evidentiary value of Ex-P3. Therefore, the contention raised by the learned counsel regarding the defect in seizure of Ex-P1 also cannot be accepted.
14. The last contention urged by the revision petitioner also does not merit acceptance. The argument of the learned counsel that the prosecution has not adduced any evidence in proof of the alleged conspiracy is contrary to the facts borne out on record. On assessing the evidence adduced by the prosecution witnesses, both the Courts have held that the signatures of the executants as well as purchasers who presented the document were attested by accused Nos.2 and 3. It has come in evidence that accused Nos.2 and 3 were document writers. The prosecution has let in expert evidence to show that accused Nos.2 and 3 have attested the signatures and have identified the executants before the Sub-Registrar. There is 12 nothing in the evidence to show that accused Nos.2 and 3 subscribed their signatures to Ex-P3 with the honest belief that the document was executed by the real vendors. There is not even a remote suggestion to any of the prosecution witnesses to this effect.
15. Direct evidence in proof of the conspiracy is seldom available. There is also no requirement under law that conspiracy need to be proved by direct evidence. In almost all cases, conspiracy is being inferred from the presence of the proved circumstances pointing out the existence of conspiracy to commit an unlawful act. The essence of criminal conspiracy is unlawful combination and ordinarily the offence is complete when the combination is formed and no over tact be done in furtherance of the conspiracy. In the instant case, the circumstances proved in evidence clinchingly establish that in furtherance of the conspiracy, accused Nos.2 and 3 attested the document knowing fully well that the said document was prepared by accused No.1.
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16. The Lower Courts have appreciated all these aspects in proper perspective and have recorded the findings holding the accused guilty of the offences punishable under sections 465, 468 and 120-B r/w 34 Indian Penal Code. The said findings are based on legal evidence and do not call for any interference by this Court.
17. Hence, the following order:-
Criminal revision petitions are dismissed.
Sd/-
JUDGE Bss/mn/-