Karnataka High Court
State Of Karnataka vs Dr. Sujatha on 13 April, 2023
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF APRIL 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRL.A. NO.100332 OF 2016
BETWEEN
STATE OF KARNATAKA,
REPRESENTED BY
DETECTIVE INSPECTOR FRAUD
SQUAD, C.I.D., BENGALURU,
THROUGH THE ADDL. STATE
PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI.V.S.KALASURMATH, HCGP)
AND
DR. SUJATHA W/O VENKATESH HALLUR,
AGED 37 YEARS, WORKING AS MEDICAL OFFICER
AT MALLAPUR AND ON DEPUTATION AT
KARATAGI HOSPITAL, R/O: KARATAGI,
GANGAVATHI TALUK, KOPPAL DIST.
...RESPONDENT
(BY SRI.N D GUNDE, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
& (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AND
TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 01.07.2016 PASSED IN CRIMINAL CASE NO.199 OF
2009 BY THE SENIOR CIVIL JUDGE AND C.J.M., KOPPAL AND TO
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 420, 465, 468 AND 471 OF IPC.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
06.04.2023 FOR JUDGMENT AND COMING ON FOR
PRONOUNCEMENT, THIS DAY, RAJESH RAI K., J. DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is filed by the State under Section 378(1) and (3) of Code of Criminal Procedure (for short' Cr.P.C.) is directed against the judgment and order passed by the Senior Civil Judge and CJM (for short 'trial judge') in C.C.No.199/2009 dated 01.07.2016, acquitting the respondent/accused for the offences punishable under Sections 420, 465, 468 and 471 of IPC.
2. The factual matrix of the case is that, the respondent/accused and her son met with road traffic accident in the year 1999 and she had filed a claim petition under the provisions of Motor Vehicles Act to claim compensation before the MACT, Koppal. The accused with dishonest intention to claim higher compensation fabricated the hospital receipts/bills for higher amount for the period from 02.06.1999 to 15.06.1999 instead of 06.06.1999 to 05.06.1999 i.e. relating to 'Shiva Krupa' 3 Hospital situated at Hubballi. The accused tampered the receipts issued by the hospital to show that she was under
treatment as inpatient from 02.06.1999 to 15.06.1999. The accused also forged the receipts by adding higher amount in the receipts and thereby she filed a claim petition against the KSRTC in MVC No.54/2000. It is further case of the prosecution that the accused has also given a false evidence before the Court and obtained compensation of Rs.1,26,000/- in MVC case on the basis of false/forged/created and fabricated hospital receipts. For the said act of the accused, a complaint was came to be registered on 23.08.2007 i.e. after lapse of 8 years by the Security and Vigilance Officer, KSRTC, Davanagere Division. Based on the said complaint, the Koppal Town Police registered the FIR against the accused and her husband (as per Ex.P.34). The said complaint was later transferred to the Detective Inspector, Fraud Squad, CID, Bengaluru and was investigated by PW.3-Inspector, Detective Squad, CID, Bengaluru. On completion of the investigation, Koppal Police have filed charge sheet against 4 the accused person before the court for the above mentioned offences.
3. After taking cognizance of the case, the learned trial judge framed the charges against the accused for the offences punishable under Sections 420, 465, 468 and 471 of IPC which was denied by the accused. In order to prove the said charges, prosecution in all examined 8 witnesses as PW.1 to PW.8 and also got marked 37 documents as Ex.P1 to P37. Although, the accused did not chose to examine any witness on her behalf, however, got marked 5 documents as EXs.D1 to D5. After assessment of oral and documentary evidence, the trial Judge acquitted the accused from the charges leveled against her. Against the said judgment, the appellant-State has filed this appeal.
4. Heard the learned HCGP Sri.V.S.Kalasurmath for the appellant-State and learned counsel Sri.N.D.Gunde for respondent and perused the material available on record.
5. Learned HCGP vehemently contended that the judgment under appeal suffers from perversity and 5 illegality since, the same is not based on the evidence.
According to him, the learned trial judge failed to consider the evidence available on record i.e. evidence of PW1, PW7 and PW8-the employees and doctors of the hospital where the accused took treatment, who have categorically deposed that the accused/respondent admitted in their hospital only for a period of three days and not for a period of 15 days. As such, they expressed doubt in the bills/receipts produced by the accused as per Ex.P4 and P5 that the same are forged one. Hence, their evidence cannot be discarded. The PW.3 being the investigating officer very clearly stated that during his investigation, it was revealed that accused forged the bills and claimed more compensation amount from the Tribunal in MVC No.54/2000. As such, he started the investigation and laid the charge sheet against the accused. Hence, the version of PW1, PW3, PW7 and PW8 are quite probable and believable. Without considering the same, trial judge erred by passing impugned judgment. Hence, learned HCGP prays to set aside the judgment and order of the trial 6 judge and prays to convict the accused for the charges leveled against her.
6. Per contra, learned counsel appearing for the respondent-accused vehemently contended that, the judgment under appeal is well reasoned and based on the evidence available on record. According to him, the learned trial judge has rightly acquitted the accused due to non-availability of evidence for the offences charged against the accused. He would further contend that there are no sufficient evidences to establish that the accused forged and altered Exs.P4 and P5-alleged bills/receipts. Prosecution totally failed to obtain the sample handwriting of the accused and to send the same along with the disputed handwriting found in Exs.P4 and P5 for the opinion of handwriting expert. Unless, the opinion of the handwriting expert is obtained, it is not possible to say whether any alterations are made in the receipts. The learned counsel contended that the investigation officer in his cross examination has categorically admitted the fact 7 that opinion of the handwriting expert is necessary in order to say in who's hand writing the receipts are written. Further, the counsel would submit that the KSRTC did not disputed those bills i.e. Exs.P4 and P5 which were produced in the MVC cases and by considering those bills along with other bills, the Tribunal has awarded compensation of Rs.1,26,000/- to the accused-respondent. The said award was challenged by the respondent-accused before this Court by filing MFA Cross objection No.222/2007 for enhancement of the compensation and the same was allowed by this Court and hence, enhanced compensation was granted to the respondent-accused. As such, there is no question of forgery by the hands of respondent-accused. Hence, he prays to dismiss the appeal.
7. I have bestowed my anxious consideration both on the argument advanced by the learned HCGP for the appellant and learned counsel for the respondent-accused 8 and carefully perused the evidence and materials available on record including the trial Court record.
8. Having heard the learned counsel for the parties and having perused the evidence available on record, the point that would arise for my consideration is
1. Whether the judgment passed by the Senior Civil Judge and CJM suffers from any perversity or illegality?
9. This Court being first appellate Court, it is necessary to re-appreciate the evidence available on record. On a cursory glance to evidence deposed by the witnesses before the trial Court i.e. PW.1-Mahantesh, the receptionist of Shiva Krupa, Hospital, Huballi, he deposed that the respondent-accused was admitted in his hospital as inpatient from 02.06.1999 to 05.06.1999 and the hospital authority issued a bill to that effect.
10. PW.2 -Satish Hegade, the then Security and Vigilance Officer, KSRTC, Davanagere Division, Koppal town who lodged the complaint against the accused as per 9 Ex.P1 and identified EXs.P4 and P5 the alleged forged documents concocted by the accused. According to him, based on the MVC case filed by the accused in MVC No.54/2000 and MVC No.56/2000, he investigated the case records and filed the complaint against the accused.
11. PW.3-A.R.Karnool, the investigating officer in the case i.e. the then detective Inspector of CID, Bengaluru who obtained the admission and discharge register in respect of the respondent-accused from the Shiva Krupa Hospital, Hubballi and completed the investigation and filed the charge sheet before the Court.
12. PW.4-B.Tippeswamy, the then Head constable of Koppal Police station who received complaint from PW.2 as per EX.P.34.
13. PW.5 -Subramanya who conducted the partial investigation in the case. He recorded the further statement of the complainant and also obtained details of MVC case filed by the respondent-accused. 10
14. PW.6-Thimana Gouda is the circumstantial witness. According to him, himself, accused and her son together traveled in omni car and at that time the accident was caused due to rash and negligent driving of the KSRTC bus driver.
15. PW.7-Dr.M.S.Bembalagi, duty doctor of Shiva Krupa hospital, Hubballi. According to him, he produced the documents pertaining to the accused in respect of admission and discharge in their hospital before the Police.
16. PW.8-Dr.Suresh Duggani is also a doctor of Shiva Krupa Hospital and according to him, as per Ex.P15, the accused were admitted in the said hospital from 06.06.1999 to 05.06.1999.
17. Before appreciating the evidence discussed supra, it is just and necessary to discuss the relevant provisions under Sections 463 and 464 of IPC i.e. forgery and making a false document. Section 463 and 464 are extracted below.
11Section 463 of The Indian Penal Code "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. Section 464 of The Indian Penal Code " 464 Making a false document. -- [A person is said to make a false document or false electronic record-- First --Who dishonestly or fradulently--
(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, 12 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 person, 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 the nature of the alteration.]
18. Under Section 464 of IPC, a person is said to make a false document - Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document with the intention of causing it to be believed that such document or part of document was made, signed, sealed or executed, transmitted or affixed by or by the authority of a person by whom or by who's authority he knows that it was not made, signed, sealed or executed. "The 13 definition of false document is a part of document, authority" both must be read together. If so, ingredients of the offence forgery are
1) Fraudulently signing a documents or a part of document with an intention of posing it to be believe that such document or part of a document was signed by another or under his authority; 2) Making such document with an intention to commit fraud or that fraud may be committed.
19. In the two definitions mens ria described both in Section 464 i.e. "Fraudulently" "the intention to commit fraud" in Section 463 have the same meaning. The redundancy has perhaps become necessary as allegation of fraud is not the ingredients of the other mentioned in Section 463. The idea of deceit is the necessary ingredients of fraud but it does not exhaust it; an additional allegation is implicit in the express" In section 464 two adverbs "dishonestly" "fraudulently" are used alternatively indicating thereby that one excludes the other that means they must be given different meaning. The 14 word 'defra' includes an allegation of deceit. Deceit is not ingredient of definition of the word "dishonestly" while it is an important ingredient of the definition of word "Fraudulently". The just opposition of the two expression "dishonestly" "fraudulently" used in the various sections of the code indicates there close affinity. Therefore, the definitions one may give colour to other.
20. In the case on hand, to prove the charges of forgery leveled against the accused, though, the prosecution examined eight witnesses, none of the witness deposed about the act of forgery committed by the accused. Admittedly, the prosecution failed to send the admitted handwritings of the accused along with disputed handwriting found in Exs.P4 and P5 to the handwriting expert to get an opinion to prove charges leveled against the accused. The Investigating Officer-PW3 categorically admitted in his cross examination that the opinion of the handwriting expert is necessary in order to say in who's handwriting the receipts i.e Exs.P4 and P5 are written. 15 Further, he deposed that he has not seized the documents from the hospital. As such, the prosecution totally failed to place reliable evidence to prove the charges leveled against the accused for the offence of forgery and cheating. Admittedly, the alleged incident said to have taken place in the year 1999 and the complaint filed by PW.3 in the year 2007 i.e. after lapse of 8 years. There is an inordinate delay in lodging the complaint. It is bounded duty of the prosecution to explain such inordinate delay in lodging the complaint.
21. The Hon'ble Apex Court in catena of judgments held that the unexplained long delay in filling the complaint creates doubt as to the genuineness of the prosecution case. My view is fortified by the judgment in the case of Shankarlal Vs. State of Rajastan reported in (2005) SCC Crl. 579. Even otherwise as rightly contended by the learned counsel for the respondent-accused that the MVC claim filed by the accused or respondent allowed by the MACT by awarding compensation. Though the said award 16 is challenged by the KSRTC before this Court by filing MFA and the accused also filed a cross objection in the said MFA, this Court vide judgment dated 22.05.2012 dismissed the MFA filed by the KSRTC and allowed the cross objection filed by the accused by enhancing the compensation. That being the case, it is clear that, KSRTC has not challenged the veracity/genuineness of Exs.P4 and P5 either before MACT or before this Court in the MVC cases. Hence, in my considered opinion, the prosecution miserably failed to prove the charges leveled against the accused and the learned trial judge has rightly acquitted the accused from the charges leveled against her. Accordingly, I answer the point for consideration.
2. In view of the above discussion, I proceed to pass the following:
ORDER The appeal is dismissed.17
The judgment and order of Senior Civil Judge and CJM, Koppal in CC No.199/2009 dated 01.07.2016 is hereby confirmed.
SD/-
JUDGE HMB