Tripura High Court
Sanjoy Kr. Singha vs State Of Tripura on 16 March, 2018
Author: S. Talapatra
Bench: S. Talapatra
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THE HIGH COURT OF TRIPURA
AGARTALA
CRL A 14 of 2015
Sanjoy Kr. Singha
----Appellant(s)
Versus
State of Tripura
----Respondent(s)
For Appellant(s) : Mr. S. Chakraborty, Advocate For Respondent(s) : Mr. R.C. Debnath, Addl. P.P. Whether fit for Reporting : NO HON'BLE MR. JUSTICE S. TALAPATRA Judgment and Order 16/03/2018 Heard Mr. S. Chakraborty, learned counsel appearing for the appellant as well as Mr. R.C. Debnath, learned Addl. P.P. appearing for the State-respondent.
2. This is an appeal under Section 374(2) of the Cr.P.C. from the judgment of conviction dated 13.04.2015 delivered in Criminal Appeal No.11(1) of 2013 by the Additional Sessions Judge, West Tripura, Agartala (Fast Track Court No.5).
3. From a bare glance of the records it appears that by the judgment and order dated 07.12.2011 delivered in G.R.1293 of 2006 by the Chief Judicial Magistrate, West Tripura, Agartala acquitting the appellant from the charges framed under Section 468 and 471 of the IPC. The said Page 2 of 13 judgment and order was challenged by the state in the said appeal being Criminal appeal No. 11(1) of 2013 in the court of the Sessions Judge, West Tripura, Agartala, and finally on transfer the court of the Additional Sessions Judge, West Tripura, Agartala, Fast Track Court, Court No.5 by the impugned judgment dated 13.04.2015 convicted the petitioner under Section 471 of the IPC. However, even the appellate court has held that the charge against the petitioner under Section 468 of the IPC could not been proved by the prosecution.
4. The genesis in this case is located in the complaint filed by one S.C. Das, Deputy Director, Land Records and Settlement, Government of Tripura to the Officer- in-Charge, East Agartala Police Station on 13.12.2006 disclosing that the appellant, who was the Lower Division Clerk in charge of the Record Keeping in the Directorate of Land Records and Settlement had submitted an application with the mark-sheet of Higher Secondary Examination which was held in 1989 by Assam Higher Secondary Education Council under No.125892 dated 01.07.1989 to the Director, Land Records and Settlement, Government of Tripura, Agartala for recording his educational qualification in the Service Book. The Controller of Examination, Assam Higher Secondary Education Council had on requisition verified the genuinity of the said mark-sheet. The Controller of the said council in his verification report vide No.AHSEC/CE/101/06/91, dated 16.09.2006 has clearly mentioned that Shri Sanjoy Kr. Singha (the appellant herein) 'somehow' managed to temper the marks in the subjects of Book Keeping(from 25 to 30) and Page 3 of 13 Commercial Arithmetic (from 04 to 34) in the original mark- sheet. The said controller had requested to take necessary action against him. On the basis of the said complaint, the East Agartala P.S. Case No.204/06 under Section 468/471 of the IPC was registered and taken up for investigation. After investigation, the chargesheet in the form of the final police report was filed. Having taken the cognizance on the basis of the police report, the trial commenced with framing of the charge under Section 468/471 of the IPC against the appellant.
5. Since the appellant denied the charge, the prosecution in order to substantiate the charge, adduced as many as 7(seven) witnesses and admitted few documentary evidence (Exbts. 1 to 9) including the letter of control of examination. The petitioner has also introduced some documentary evidence in the evidence (Exbts. A to G) which are mainly the documents relating to his prayer for permission for sitting in the Higher Secondary Education etc. After recording of the evidence led by the prosecution, the petitioner was duly examined under Section 313 of the Cr.P.C. when he reiterated his plea of innocence again by stating that the evidence as led by the prosecution is false and unsustainable. On appreciation of the evidence, the trial court [the court of the Chief Judicial Magistrate, Agartala] acquitted the petitioner by the judgment and order dated 07.12.2011 delivered in G.R. No.1293 of 2006. The trial court has observed as under for recording acquittal :
"12(i) From these documents we find that the mark sheet in question came into the hand of the Joint Director, Land Records & Settlement in the year 2002 and thereafter the show-cause notice for Page 4 of 13 drawing disciplinary proceeding against the accused was issued. But at that time, the authority did not lodge any complaint against the accused. However, from the documents marked Exhibits-A to G, I find that the accused has shown a reasonable ground to believe that he received the mark sheet of Higher Secondary from the AHSEC directly by registered post. I have already stated that there is no sign of erasing of marks in respect of two subjects, i.e., Book Keeping and Commercial Arithmetic and in absence of opinion of the handwriting expert it is not possible to distinguish that the writing of the figures in respect of above mentioned two subjects were of different person. Further, the staff who prepared the marksheet with ink pen has also not appeared to say that the marks of book keeping and commercial arithmetic were not written by his own hand."
6. As stated, the state had preferred an appeal being aggrieved by the said finding as returned by the trial court. The appellate court by the impugned judgment has set aside that finding so far the acquittal under Section 471 of the IPC is concerned and observed as under :
"I have no reservations in observing that for wholly untenable reasons contained in paragraph 12 & 12(1) of the impugned judgment, the trial judge has acquitted accused Sri Sanjay Kr. Singha for the offence under Section 471 of I.P.C. He overlooked the fact that the proximity of time of receiving of the registered envelop and the date of the publication of result and also that the identification of maker of the forged document was not necessary for the conviction of accused using of the forged marks sheet. The Trial Court below while recording of acquittal of accused from the charge of offences stated that accused successfully proved from that he received the Exhibit-7 Marks sheet from the Assam Higher Secondary Council by registered post and as such he did not use the document knowing it as a forged Marks Sheet. The above observation is also not correct in view of the fact that admittedly accused appeared in the examination in the year 1989 from Cachar College. On scrutiny of Exhibit-7 Marks Sheet it appears that the marks sheet was prepared on 01.07.1989. It is known to all that the marks sheet has been sent to the concerned college wherefrom the candidate appeared in the examination soon after the publication of the result. In this case also it was usual as per official procedure to sent the marks sheet immediate after the publication of the result in the month of July 1989 to the college of the accused where from he appeared in the examination. In this regard the defence case is that accused came back to Agartala after the examination and when he came back to Agartala he applied to Secretary of the Assam Higher Secondary Council through Cachar College to send all his document to his address at Agartala. If the contention of the accused is true the marks sheet of the accused would has reached to him within 1989 to the college of the accused where from he appeared in the examination. In this regard Page 5 of 13 the defence case is that accused came back to Agartala he applied to Secretary of the Assam Higher Secondary Council through Cachar College to send all his document to his address at Agartala. If the contention of the accused is true the marks sheet of the accused would have reached to him within 1989 if not early. But the said registered envelop (Exhibit-G) shows that it was posted on 03.09.1992 i.e. after about 3 years of the publication of the result. Regarding his application to the Council for sending of his marks Sheet in his address at Agartala also not proved by proper evidence. The statement in the show cause reply by accused that he applied to the Secretary of the Assam Higher Secondary Council to his address at Agartala is to sufficient to prove the alleged application made by him. He did not state even in the reply of show cause notice when he applied for sending the documents in his address at Agartala. In the Exhibit- D Show cause reply he mentioned that he could not submit the marks sheet earlier due to postal delay which is not at all correct as I have already observed that the Registered Envelop was posted on 03.09.1992 i.e. after about 3 years. The above all the circumstances lead to show that accused procured the marks sheet which he knew that it was not genuine and knowing fully he used the same by submitting it to his authority in the office."
7. PW-7, Dr. Pradip Kumar Kalita, the Controller of Examination, Assam Higher Secondary Education Council has testified that on verification with the official records, he found that the Admit Card was genuine but the mark sheet was found to be tampered by erasing marks in two subjects namely, Book Keeping and Commercial Arithmetics. In Book Keeping the original marks was 25 and it was tampared to 30. In Commercial Arithmetics the original mark was 04 and it was tampared to 34. As per the official practice, the total marks in case of the failed candidates, is not mentioned. In the copy of the mark sheet, the total marks was shown as 344. The appellant did not succeed in the H.S. Examination, but in the tampered mark sheet he was shown to have succeeded.
8. The appellate court did not agree with the finding of the trial court when it observed that there was no evidence to show that the marks sheet was tempered.
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9. According to the appellate court, the finding of the trial court is not based on a sound assessment and reason. Even the marks sheet in question was prepared by the official in the office of the Controller of Examinations, Assam Higher Secondary Education Council. The marks-sheet was not honestly prepared and hence, the same has been termed as 'false' document. If the false document is made to used for any claim or title, it amounts to commit fraud. If the evidence of PW-7 is minutely examined, it would be seen that as per official records the accused-candidate appeared in the examination but he could not succeed in the examination and thus it has been observed that it is proved beyond any reasonable doubt that Exhibit-7 marks-sheet was a forged document. The trial court below grossly erred in not giving adequate importance to the evidence of P.W.7.
10. On the basis of those findings, the appellant was convicted under Section 471 and he was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.10,000/- in default thereof, to suffer further imprisonment for two months. The said judgment of the appellate court is under challenge in this appeal.
11. Mr. S. Chakraborty, learned counsel appearing for the petitioner has submitted that there is no evidence that the appellant had knowledge that the marks-sheet was tampered as alleged, and after such knowledge, he used that marks-sheet for garnering benefit out of that. Mr. Chakraborty, learned counsel has succinctly submitted that the sine qua non for establishing the offence of using the forged document as genuine is to prove that the person who used the Page 7 of 13 same had the knowledge or reason to believe the document to have forged. What the appellate court has relied for returning the conviction is a sort of presumption. Whatever had happened in respect of forging the marks-sheet was within the knowledge of the appellant, but no such foundational evidence would be available in the records.
12. Mr. Chakraborty, learned counsel has further submitted that PW-7 has introduced in the evidence a letter written by him to the concerned authority i.e. Director of Land Records and Settlement, Government of Tripura but the primary evidence had been withheld by the prosecution. Primary evidence is the tabulation record which is maintained in the board. With that record, the questioned marks-sheet could have been compared. That apart, Mr. Chakraborty, learned counsel has submitted that the person who wrote the marks sheet was also not produced and there is no evidence that the hand writing in the entire marks sheet is different from the hand writing by which tempering has been committed. These are the two aspects, the appellate court has completely ignored and thus prejudiced the appellant seriously by returning the finding of conviction.
13. Mr. R.C. Debnath, learned Addl. P.P. appearing for the state has fairly submitted that way the appellate court has come to a presumption that the appellant had knowledge of forgery it lacks the foundational evidence. No evidence has surfaced to directly show that the appellant had the knowledge of the forged marks-sheet or the knowledge of the forgery committed on the marks-sheet which was originally issued by the Assam Higher Secondary Education Council. Page 8 of 13
14. For appreciating the submission of the learned counsel, this court has scrutinised the evidence recorded by the trial court and found that PW-1, Sri Partha Sarathi Paul is the recording officer whereas PW-2 namely, Sri Karuna Mohan Nath is an Amin working under the Directorate of Land Records and Settlement, Government of Tripura. PW-2 is the witness of seizure of the original marks-sheet and he has confirmed his signature on the seizure list and as were identified the marks-sheet. He has stated that nothing more and as a result of which, the prosecution declared him hostile. However, in the cross examination he has denied his substantive part of his previous statement as recorded under Section 161 of the IPC. Further, he has categorically denied that the marks sheet that was seized was a forged marks sheet.
15. PW-3, Suresh Chandra Das is a Deputy Magistrate who lodged the information to the police station. He has identified his signature on the ejahar and the questioned marks-sheet. In the trial, he has testified as under :
"The marksheet appeared to have been issued by the Assam Higher Secondary Education Council in the name of Sanjoy Kr. Sinha of the year 1989. The Director asked for verification of genuineness of the marksheet. Accordingly, we made correspondence with Assam Higher Secondary Education council. Thereafter, the controller of examination of Assam Higher Secondary Education Council [submitted] the verification report. In the verification report it was mentioned that in the marksheet of Commercial Arithmetic and Bookkeeping were tampered in the marksheet. As per direction of the Director, he lodged the complaint in the police station."
In the cross-examination he has categorically testified as under :
"I have no personal knowledge about the tempering of the marks of Sanjoy Kr. Sinha."Page 9 of 13
But he has confirmed that the petitioner had joined in the service on the basis of his marks-sheet of Madhyamik Examination. That marks-sheet was never questioned.
16. PW-4, Sri Gopal Chandra Das, the Accounts Officer under the Directorate of Land Records and Settlement, has deposed and revealed certain things which are not very material in the present context. But he has testified that the Controller of Examination, Assam H.S. Education Council had sent a written report stating that the marks in the Commercial Arithmetic and Book Keeping were tempered in the marks- sheet. In the cross examination, he has categorically stated informing the claim of the appellant as follows :
"It is true that the envelope shows that the content of the envelope was communicated to Sanjoy Singha by registered post dated 3.9.92 from Assam Higher Secondary Council, Guwahati."
17. PW-5, Sri Nihar Ranjan Ghosh one LDC under the Directorate of Land Records and Settlement has testified in the trial and stated that he was present at the time of seizure of the questioned marks-sheet by the police officer and he put his signature in the seizure list. He has categorically stated that he did not have any knowledge whether the marks-sheet was forged or not, but he had gathered that the Directorate of Land Records and Settlement, on verification found that the said marks-sheet was forged.
18. PW-6, Sri Ashesh Debbarma is the investigating officer who having been endorsed for investigation had immediately prepared the site map with index. Later on, he seized the original marks-sheet from the accused person. He has also stated that he seized the marks- Page 10 of 13 sheet by preparing the seizure list (Exbt.7) and during the seizure three persons out of the persons who were present at the time of seizure had attested the seizure-list by putting their individual signature on it. He submitted the charge-sheet on 20.01.2007 under Section 468/471 of the IPC. His statement in the cross examination is of paramount importance inasmuch as he has stated in the cross examination that he did not collect any documents in respect of the Controller of Examination, namely Dr. P.K. Kalita [PW- 7].
19. PW-7, Dr. Pradip Kumar Kalita on whom the appellate court has placed enormous reliance and returned the finding of conviction has testified in the trial. According to his version, he had received the letter dated 02.09.2006 from the Directorate of Land Records and Settlement, Government of Tripura for verification of the marks-sheet bearing No.125892 dated 01.07.1989. He had verified both the admit card and the mark-sheet by means of their official records. He has further stated as under :
"On verification, I found the Admit Card was genuine but t he mark sheet was found to be tampered by erasing marks in two subjects namely, Book Keeping and Commercial Arithmetics. In Book Keeping the original marks was 25 and it was tampared as 30. In Commercial Arithmetics the original mark was 04 and it was tampared as 34."
According to PW-7, the accused by the forged mark- sheet has been shown as passed the Higher Secondary Examination. But according to the records maintained in the State Council, he could not succeed in the Higher Secondary (+2) Examination.
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20. On scrutiny of the records it transpires that neither the primary document i.e. the tabulation records nor the person who usually writes the marks sheet or prepares the tabulation sheet was produced by the prosecution for introducing those primary evidence in the records of evidence. The allegation is of forging of a document. The burden of proving 'the forgery' within the meaning of Section 463 of the IPC lies on the prosecution. Except the oral statements and the said letter the trial court did not call for the primary evidence or those were admitted. In order to constitute forgery, the first essential is that the accused has manufactured or made a false document. The other part which is required to be proved is that the false document had been made or manufactured with intent to cause damage or injury to the public or to the class or any community.
21. Both the courts (the trial court and the appellate court) have held that the charge of forgery against the petitioner had fallen through. If that is so, the petitioner has been exonerated clearly from the charge of forgery under Section 468 of the IPC meaning the petitioner was not accepted as the person who forged the document. Thus, knowledge that the document is forged has become paramount for convicting the accused under Section 471 of the IPC. If the letter written by PW-7 to the Directorate of Land Records and Settlement has been treated with impunity that the mark-sheet was forged, it has to be held that the prosecution has utterly failed to locate that person who forged the document. Even they did not taken aid of the hand-writing expert for examination of the hand writing of the appellant and Page 12 of 13 the figures appearing for the two subjects in the mark-sheet and obviously for bring dawn on the question whether those figures were written by the appellant or not. As such, there had been no occasion to summon the hand writing expert under Section 47 of the Indian Evidence Act to compare the questioned hand-writing whether that was written by the accused appellant or not.
22. Let us now scrutinize the evidence for the element of knowledge of the appellant in respect of the forgery and for use of the forged document for garnering his personal benefit. From a reading of the observation made by the appellate court, this court finds that was based completely on presumption, as if, the petitioner had earlier knowledge of the original mark-sheet. Thus, when he had produced the purported forged document to the authority, he had definite knowledge that the documents that he was producing before the employer was a forged one.
23. What appears to this court is that the basic principles of drawing the presumption on a matter of fact, where there is no direct evidence is that there must be the foundational fact proved in the evidence. In this case, the foundational facts could be of two types, viz :
(a) the petitioner had the knowledge of the original marks sheet, and
(b) the petitioner had himself forged the document.
The latter had been determined by both the courts holding that there is no evidence to hold that the petitioner did Page 13 of 13 forge the mark-sheet and as a result of which the petitioner was discharged from the charge of committing forgery.
Now, whether there is any evidence at all that the petitioner had the knowledge of the original mark-sheet without being tempered? There is none. Hence, this court is constrained to observe that in absence of the foundational evidence the finding of conviction under Section 471 of the IPC cannot be sustained.
24. As corollary, the impugned judgment of conviction is interfered with and quashed. The petitioner is acquitted from the charge under Section 471 of the IPC on benefit of doubt. Since the petitioner is on bail, the surities are discharged from the obligation.
In the result, the appeal stands allowed.
Transmit the LCRs forthwith.
JUDGE Sabyasachi. B