Calcutta High Court
Kalidas Biswas vs State Of West Bengal on 29 January, 2004
Equivalent citations: (2004)2CALLT389(HC)
JUDGMENT A.K. Bisi, J.
1. The instant revision application under Section 401 read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioner Kalidas Biswas against the judgment and order dated 1.9.2000 passed by the learned Additional Sessions Judge, 4th Court, Barasat, North 24-Parganas in Criminal Appeal No. 21/ 98 affirming the judgment and order of conviction and sentence passed by the learned Sub-Divisional Judicial Magistrate, Barasat, North 24-Parganas on 18.9.98 in G.R. Case No. 1255/1985.
2. The facts anterior to filing of the instant revision application may briefly be narrated thus: G.R. Case No. 1255/1985 was started on the basis of FIR lodged by Balai Chandra Biswas since deceased under Sections 419/420/466/467/468/34 of the Indian Penal Code raising allegations that one of his sons Kalidas Biswas presently the petitioner in collusion with other accused persons executed and registered two deeds of gifts in his favour and in favour of his minor son and others representing himself falsely as Balai Chandra Biswas and put his signature and L.T.Is in those two deeds as Balai Chandra Biswas. The gravamen of the prosecution allegations is that those two deeds of gift are forged documents and were never executed by the defacto complainant Balai Chandra Biswas. The case was started by the Police on the basis of the petition of complaint which was treated as FIR and on completion of investigation the present petitioner being one of the accused along with other accused had been charge-sheeted by the Investigating Officer. The trial was faced by the present petitioner Kalidas Biswas along with the co-accused Paritosh Sarkar and Tushar Kanti Ghosh. The learned trial Court framed charges under Section 420/34 of the Indian Penal Code and under Section 468/34 of the Indian Penal Code against the present petitioner and other two accused persons. The learned trial Court on conclusion of the trial found all the three accused guilty of the offence punishable under Section 468/34 of the Indian Penal Code and convicted all the three accused and sentenced the present petitioner to suffer Rigorous Imprisonment for two years and to pay fine of Rs. 2000/- in default to Rigorous Imprisonment for further two months. The learned trial Court sentenced the other two accused namely Paritosh Sarkar and Tushar Kanti Bose to pay a fine of Rs. 2000/- each in default to suffer Rigorous Imprisonment for two months each.
3. Being aggrieved by the judgment and order of conviction and sentence passed by the learned trial Court the present petitioner Kalidas Biswas as appellant preferred Criminal Appeal No. 21/98 and on appeal the learned Additional Sessions Judge, 4th Court, Barasat, 24 Parganas by his judgment and order dated 1.9.2000 upheld the order of conviction and sentence passed by the learned trial Court and consequently dismissed the said criminal appeal.
4. Aggrieved, the present petitioner has preferred the instant revision application assailing the findings of both the learned Appellate Court and the learned trial Court.
5. The sole point arising for decision in the instant criminal revision is whether or not the findings of the learned Appellate Court and the learned trial Court with regard to guilt of the accused petitioner are sustainable on the face of the materials on record.
6. Mr. Sudipto Moitra the learned advocate appearing for the petitioner has contended at the outset that the learned trial Court framed charge under Section 420/34 of the Indian Penal Code and charge under Section 468/34 of the Indian Penal Code against the present petitioner and the co-accused and without making any finding on the charge under Section 420/34 of the Indian Penal Code the learned trial Court found the accused petitioner guilty of the offence punishable under Section 468/34 of the Indian Penal Code. He has also drawn my attention to the judgment of the learned Appellate Court where there is no finding whatsoever on the charge under Section 420/34 of the Indian Penal Code. He has contended that unless the intention to use the document forged for the purpose of cheating is proved, the essential ingredient of the offence punishable under Section 468 of the Indian Penal Code is absent. He has further drawn my attention to Section 463 of the Indian Penal Code which defines forgery. As defined in Section 463 of the Indian Penal Code, whoever makes any false document or part of a document with intention 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 any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. It has been argued by Mr. Moitra that the learned trial Court made no finding with regard to such intent which is sine qua non of the offence of forgery and in absence of such finding or evidence the offence of forgery cannot be proved against the present petitioner. He has further drawn my attention to the fact that though point No. 1 formulated by the learned trial Court for consideration relates to the offence of cheating no finding whatsoever was made by the learned trial Court on this aspect of the matter and that apart, there was no proof of intention of the accused that the deed of gift alleged to have been forged was ever intended to be used for the purpose of cheating. Mr. Moitra has pointed out the relevant portion of the finding of the learned trial Court wherefrom it appears that the learned trial Court has observed that to constitute an offence of forgery simple making of false document is sufficient. This finding of the learned trial Court has been assailed by Mr. Moitra contending that only making of false document will not make any person guilty of the offence punishable under Section 468 of the Indian Penal Code unless the intention to use such document for the purpose of cheating is proved against him. Mr. Moitra has contended that since there was no finding of the learned trial Court or of the learned Appellate Court on the point of intention to cheat and there was no finding whatsoever on the charge under Section 420/34 of the Indian Penal Code framed against the accused, it necessarily implies that the accused petitioner was acquitted of the charge under Section 420 read with Section 34 of the Indian Penal Code and in that event charge under Section 468 read with Section 34 of the Indian Penal Code has got no legal basis. He has cited the decision of the Division Bench of this Court in Adhi Mullick v. The State, it has been held as follows:
"Taking the facts of this particular case into account, it has to be found, therefore, that the document which forms the subject-matter of the charge must be proved to have been made fraudulently or dishonestly with one or other of the intentions mentioned in Section 463, Indian Penal Code by the petitioner who made it or executed it, with the intention of causing it to be believed that it was made, signed or executed by a person by whom he knows it had not been made, signed or executed.
It follows, therefore, that there must be found fraudulent intent which is an essential ingredient of Section 465, Indian Penal Code but the learned Magistrate refused to believe the only evidence of fraud and consequent dishonesty implied in the charges under Sections 419 and 420 of the Code. I have already indicated that the gravamen of the two charges was a certain definite false representation that he was the owner of the land when in point of fact he was not the owner. This was negatived as a result of the finding arrived at by the learned Magistrate as regards the two charges under Sections 419 and 420 Indian Penal Code. It is, therefore, not possible in the circumstances to hold that the findings of the learned Magistrate upon those two charges leave wholly unaffected the charge under Section 465, Indian Penal Code. It is impossible to view the acquittal of the petitioner as respects the two charges compartmentally and in a manner wholly unrelated to the totality of facts which must be taken In their entirety and upon which these three separate charges were framed. When the learned Magistrate did not find It possible to believe the prosecution case on the two charges with all their implications, the charge under Section 465, Indian Penal Code cannot possibly survive the consequence of such acquittal."
7. Mr. Kasem Ali Ahmed the learned advocate for the State/ Opposite party has contended, on the other hand, that the penal provision relating to offence of forgery of the purpose of cheating under Section 468 of the Indian Penal Code itself shows that there must be element of cheating to use the forged document and as such even if there is no finding on the charge under Section 420 of the Indian Penal Code that will not exonerate the appellant from the charge punishable under Section 468 of the Indian Penal Code. Mr. Moitra, on the other hand, has referred to Kalidas Chandra Das v. The Crown reported in 6 CWN 382 wherein it has been held that to justify a conviction under Section 467 of the Indian Penal Code it must be shown that the document is a false document within the meaning of Section 464 of the Indian Penal Code and that it was forged by the accused with some intent as mentioned in Section 463 of the Indian Penal Code and it is not sufficient that some possible intent may be inferred from the facts but it is necessary that such intent should be established by evidence.
8. On hearing the rival contentions raised by Moitra and Mr. Ahmed and going through the materials on record I find that neither the learned trial Court nor the learned Appellate Court made any finding with regard to charge under Section 420/34 of the Indian Penal Code although the point for consideration relating to the said charge, as mentioned hereinbefore, was formulated by the learned trial Court.
In my view, absence of finding with regard to charge under Section 420/34 of the Indian Penal Code is an inadvertent error of the Court which does not imply acquittal of the accused of the said charge. In the case of Adhi Mullick (supra) as cited by Mr. Moitra the learned Magistrate acquitted the accused of offences under Section 419 and 420 of the Indian Penal Code but convicted him under Section 465 of the Indian Penal Code. Such is not the case here. In the instant case both the learned trial Court and the learned Appellate Court did not make any finding on the charge under Section 420/34 of the Indian Penal Code though the said charge has been framed against the present petitioner along with the co-accused. Since the element of cheating is involved in the offence of forgery for the purpose of cheating as contemplated under Section 468 of the Indian Penal Code, specific finding with regard to cheating in such case is essentially required. In that view of the matter even in absence of charge under Section 420 of the Indian Penal Code the Court can well deal with the matter relating to the element of cheating while deciding the case relating to the charge of forgery for the purpose of cheating under Section 468 of the Indian Penal Code. However, it cannot be lost sight of the fact that in the instant case not only charge under Section 468/34 of the Indian Penal Code was framed against the accused including the present petitioner but also charge under Section 420/34 of the Indian Penal Code was framed against them. So the point relating to the charge under Section 420/34 of the Indian Penal Code is one of the vital issues which ought to have been adjudicated upon by the learned trial Court as well as by the learned Appellate Court. This has not been done in the instant case. Absence of finding on this aspect of the matter is tantamount to gross irregularity which can be remedied by this Court sitting in revision.
9. Mr. Moitra the learned advocate for the petitioner has urged that the findings of the learned trial Court and the learned Appellate Court resulting in conviction of the petitioner solely rest on opinion of the expert. He has drawn my attention to the relevant part of the judgment of the learned trial Court to show that the learned trial Court has acted solely on the opinion of the expert and accepted their opinion in support of the forgery committed by the present petitioner. It has been further urged by him that there is no finding of the learned trial Court or of the learned Appellate Court independent of the opinion of the expert. He has contended that the accused should not be convicted of forgery upon the uncorroborated testimony of the expert. He has cited in re: B. Venkata Row (First Prisoner), reported in ILR Madras (36) 159 in support of his contention. Mr. Ahmed the learned advocate for the State/opposite party has laid emphasis on the expert's evidence and contended that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. He has cited Jaspal Singh v. State of Punjab reported in 1979 Cri LJ 1386 wherein at page 1388 (para 8) it has been so held by the Supreme Court.
10. From the materials on record it appears that the Investigating Officer took specimen signatures and LTIs of the accused persons including the present petitioner after obtaining permission from the then learned SDJM, Barasat. It is quite evident from the relevant orders passed by the learned SDJM, Barasat that the Investigating Officer prayed for permission for taking specimen signatures and LTIs of all the accused persons in presence of the Court and such permission was granted and after obtaining such permission the Investigating Officer took specimen signatures of the present petitioner and the co-accused. The disputed two deeds are marked Exts. 3 and 4. The materials on record clearly indicate that the Investigating Officer seized the questioned documents from the office of Additional District Registrar at Barasat under proper seizure list and the signatures and LTIs of the present petitioner along with the questioned documents bearing the allegedly forged signatures and LTIs of the defacto complainant Balai Chandra Biswas were sent to the experts for comparison and opinion. The opinion of the expert concerned reveals that the questioned signatures were written by the writer of the specimen signatures and agreement in writing characteristics was sufficient and significant to prove their common authorship. It is curious to note that though the admitted signatures of the defacto complainant Balai Chandra Biswas appeared in the petition of complaint which was treated as FIR and marked as Ext. 1 the same had not been sent to the expert for comparison with the disputed signatures in the documents. It passes my comprehension as to why the admitted signatures of Balai Chandra Biswas appearing in the petition of complaint and the Vakalatnama had not been sent along with the relevant deeds to the expert for comparison and signature. On being asked Mr. Ahmed for the State/opposite party has admitted that it ought to have been done by the Investigating Agency. But no reason can be assigned why the Investigating Agency did not adopt such common procedure which is followed in the matter of comparison of signatures which are disputed along with the admitted signatures of the person concerned.
11. Mr. Moitra the learned advocate for the petitioner has contended that a direction by the Magistrate to the accused to give his specimen writing when the case is still under investigation is not warranted by law. He has cited State of Uttar Pradesh v. Ram Babu Misra the Supreme Court held as follows:
"The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings for the purpose of enabling the Court to compare such writings with writings alleged to have been written by such person. The clear implication of the words 'for the purpose of enabling the Court to compare' is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given 'for the purpose of enabling the Court to compare' and nor for the purpose of enabling the investigating or other agency to compare. If the case is still under Investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court."
12. It is no doubt settled law that the guarantee envisaged under Article 20(3) of the Constitution of India is against testimonial compulsion. The order passed by the then learned SDJM, Barasat permitting the Investigating Officer to take specimen signatures and LTIs of the accused can in no way be said to have been made under Section 73 of the Indian Evidence Act because of the fact that the said order was made in the course of an investigation. Reference can be made in this regard to M.P. Sharma and Ors. v. Satish Chandra, which has been relied on by the Division Bench of this Court in Farid Ahmed v. The State, . Thus it appears that an order passed by a Magistrate allowing the Investigating Officer to take the specimen writings and signatures of the accused at the stage of investigation is violative of the fundamental right specified in Article 20(3) of the Constitution of India--and in view of the ratio of the decision of the Supreme Court in the case of State of Uttar Pradesh (supra) such direction by the Magistrate is not permissible in the eye of the law.
13. As mentioned above, the admitted signatures of the defacto complainant Balai Chandra Biswas appearing in the petition of complaint and the vakalatnama had not been sent to the expert concerned for comparison with the allegedly forged signatures of Balai Chandra Biswas appealing in the disputed deeds marked as Exts. 3 and 4 and instead thereof the signatures and LTIs of the accused taken by the Investigating Officer with permission of the Court had been sent to the expert for comparison with the signatures appearing in the disputed deeds. It is settled law that Section 73 of the Evidence Act cannot be made use of for collecting specimen writings and signatures during the course of investigation. In Sukhwinder Singh and Ors. v. State of Punjab, the Supreme Court observed as follows:
"The second paragraph of Section 73 (supra) enables the Court to direct any person present before it to give his specimen writing 'for the purpose of enabling the Court to compare' such writings with writings alleged to have been written by such person. The obvious implication of the words 'for the purpose of enabling the Court to compare' is that there is some proceeding pending before the Court in which or as a consequence of which it is necessary for the Court to compare such writings. The direction is therefore required to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling an investigating or a prosecuting agency to obtain and produce as evidence in the case the specimen writings for their ultimate comparison with the disputed writings. Where the case is still under investigation and no proceedings are pending in any Court in which it might be necessary to compare the two writings, the person (accused) cannot be compelled to give his specimen writings. The language of Section 73 does not permit any Court to give a direction to an accused to give his specimen writing for comparison in a proceeding which may subsequently be instituted in some other competent Court. Section 73 of the Evidence Act in our opinion cannot be made use of for collecting specimen writings during the investigation and recourse to it can be had only when the enquiry or the trial Court before which proceedings are pending requires the writing for the purpose of enabling it to compare the same. A Court holding an enquiry under the Code of Criminal Procedure is indeed entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the Court by which he may be subsequently tried to compare it with the disputed writings. Therefore, in our opinion the Court which can issue a direction to the person to give his specimen writing can either by the Court holding the enquiry under the Code of Criminal Procedure or the Court trying the accused person with a view to enable it to compare the specimen writings with the writings alleged to have been written by such a person. A Court which is not holding an enquiry under the Code of Criminal Procedure or conducting the trial is not permitted, on the plain language of Section 73 of the Evidence Act, to issue any direction of the nature contained in the second paragraph of Section 73 of the Evidence Act. The words 'any person present in the Court' in Section 73 has a reference only to such persons who are parties to a cause pending before the Court and in a given case may even Include the witnesses in the said cause but where there is no cause pending before the Court for its determination, the question of obtaining for the purposes of comparison of the handwriting of a person may not arise at all and therefore, the provisions of Section 73 of the Evidence Act would have no application."
14. From the above discussion it is manifestly clear that the specimen signatures and LTIs of the accused obtained during investigation cannot be made use of during the trial and the report of the expert when considered in the light of the aforesaid discussion is rendered of no consequence at all and cannot be used against the present petitioner to connect him with the crime. Failure on the part of the petitioner to raise any objection at the time when called upon to give us specimen signatures and LTIs cannot certainly clothe the Court with any power to issue the directions as envisaged under Section 73 of the Evidence Act.
15. Mr. Ahmed the learned advocate for the State/opposite party has contended that since the defacto complainant Balai Chandra Biswas who was the father of the present petitioner Kalidas Biswas was well acquainted with the handwriting and signatures of his said son and lodged the petition of complaint raising allegation of forgery against his said son, his version in the written complain (Ext. 1) is sufficient proof of the offence of forgery committed by the present petitioner. Admittedly, the defacto complainant Balai Chandra Biswas could not be examined as witness in the course of trial because he expired. In absence of evidence of Balai, Chandra Biswas in Court the contents of the written complaint cannot take the place of substantive proof of forgery. So the above contention raised of Mr. Ahmed for the State has got no force.
16. From all that has been stated above I find that the learned trial Court has fallen into error in making no finding with regard to charge under Section 420/34 of the Indian Penal Code framed against the present petitioner. It is also manifestly clear that neither the learned trial Court nor the learned Appellate Court made any endeavour to assess the evidence to come to a finding as to whether the prosecution has been able to prove beyond reasonable doubt that the relevant documents were forged by the accused with some intent as mentioned in Section 463 of the Indian Penal Code. As mentioned hereinbefore, without sending the admitted signatures of the defacto complainant for comparison with the disputed signatures in the said two deeds the signatures and LTIs of the accused obtained by the Investigating Officer with permission of the Court at the stage of investigation were sent to the expert for comparison with the disputed signatures appearing in the two deeds in utter violation of law and this is a manifest error on a point of law. In such situation interference with the impugned order of conviction and sentence passed by the learned trial Court and upheld by the learned Appellate Court by this Court in revision is desideratum.
17. In State of Orissa v. Nakula Sahu and Ors., the Supreme Court held as follows:
"So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under Section 439 read with Section 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of Appeal under Section 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalls v. Shanti Bose and Akalu Ahir v. Ramdeo Ram ."
18. In Krishnan and Anr. v. Krishnaveni and Anr. reported in 1997 C Cr LR (SC) 124 at page 130 (para 8) the Supreme Court held as follows:
"The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to met out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1), However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of he process of miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its juridical or illegality of sentence or order."
19. In view of the authorities cited above it can well be held that when there has been failure of justice and error on the point of law is apparent in the judgment of the learned Court below, this Court sitting in revision has to interfere with such findings. It has already been pointed out that the concurrent findings arrived at by the learned trial Court and the learned Appellate Court resulting in conviction and sentence of the present petitioner suffer from inherent infirmities stemming from irregularities and errors on the point of law as noted above. That being so, the impugned order of conviction and sentence passed by the learned trial Court and upheld by the learned Appellate Court cannot be sustained.
20. As already pointed out, there was no finding of the learned trial Court or the learned Appellate Court on the charge under Section 420/34 of the Indian Penal Code framed against the present petitioner along with other accused. That apart, neither the learned trial Court nor the learned Appellate Court has assessed the evidence in proper perspective to come to a decision as to whether there was sufficient proof of intent as mentioned in Section 463 of the Indian Penal Code to substantiate the charge under Section 468 of the Indian Penal Code against the present petitioner. It has also been pointed out that the admitted signatures of the defacto complainant Balai Chandra Biswas since deceased appearing in the petition of complaint (Ext. 1) and the Vakalatnama had not been sent to the expert for comparison of the same with the disputed signatures in the two deeds. In my estimation to meet the ends of justice this case should be remanded to the learned trial Court for making specific finding with regard to charge under Section 420/34 of the Indian Penal Code framed against the present petitioner and also to arrive at the finding as to whether the prosecution has been able to establish that there was any intention of the present petitioner to commit forgery for the purpose of cheating. To ascertain the correct state of affairs comparison of the admitted signatures of the defacto complainant Balai Chandra Biswas in the petition of complaint treated as FIR and the Vakalatnama with the disputed signatures appearing in the deeds marked Exts. 3 and 4 is required to be made by the expert whose opinion is of considerable importance in such case. In view of the principle underlying the maxim Ex debito Justitiae to meet the requirements of justice the order of remand of this case to the learned trial Court so far as the present petitioner is concerned is essentially needed. Reference can be made in this context as well to Jagan Nath v. State, .
21. Accordingly I set aside the order of conviction and sentence passed by the learned trial Court and upheld by the learned Appellate Court so far as it concerns the present petitioner Kalidas Biswas and remit the case back to the learned trial Court for taking steps to get the admitted signatures of the defacto complainant Balai Chandra Biswas since deceased in the petition of complaint (Ext. 1) which has been treated as FIR and in the Vakalatnama filed by him, compared with the disputed signatures appearing in the two deeds Exts. 3 and 4 by the expert and obtain opinion of the expert on this aspect of the matter whereupon the expert concerned will be examined as witness to prove his report and the present petitioner will be given opportunity to cross-examine the expert. After evidence of the expert concerned is taken if any incriminating circumstance appears against the present petitioner he will be further examined under Section 313 of Code of Criminal Procedure and he will be allowed to adduce evidence If he so requires only on that point and on no other points. Thereupon the learned trial Court will conclude the trial after giving opportunity of further hearing to the prosecution and the present petitioner Kalidas Biswas and decide the case afresh on the basis of the evidence on record in the light of the observations made in this judgment and in accordance with law without being influenced by previous findings or any finding of this Court. The order of conviction and sentence passed by the learned trial Court against the other accused will stand. The revision application is allowed to the extent indicated above.
Since the case is an old one the learned trial Court is directed to dispose of the same within six months from the date of communication of this order.
Let a copy of this judgment along with the L.C.R. be set down to the learned Court below forthwith.