Himachal Pradesh High Court
Sukh Ram vs Of on 8 December, 2023
3IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 339 of 2012
Reserved on: 07.11.2023
.
Date of Decision: 8th December 2023.
Sukh Ram
....Appellant.
Versus
of
State of Himachal Pradesh
....Respondent
Coram rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes.
For the Appellant : Ms Devyani Sharma, Sr. Advocate
with Mr Basant Pal Thakur, Advocate.
For the Respondent : Mr. R.P. Singh and Mr. Prashant Sen,
Deputy Advocates General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and order dated 31.7.2012, vide which the appellant (accused
before the learned Trial Court) was convicted for the commission
of offences punishable under Sections 415 & 471 of IPC and
Section 13(1)(d) of the Prevention of Corruption Act, 1988 and was
sentenced as under:-
Under Section 415 of IPC To suffer imprisonment for one
year and a fine of ₹ 5,000/-
Whether reporters of the local papers may be allowed to see the judgment? Yes
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(five thousand) and in default of
payment of fine, to further
suffer imprisonment for 3
months.
.
Under Section 471 of IPC To suffer imprisonment for two
years and a fine of ₹ 10,000/-
(ten thousand) and in default of
payment of fine, to further
suffer imprisonment for 6
months.
of
Under Section 13(1)(d) of the To suffer imprisonment for two
Prevention of Corruption Act, years and to pay a fine of ₹
1988. 10,000/- (ten thousand) and in
rt default of payment of fine, to
further suffer imprisonment for
6 months.
(Parties shall hereinafter be referred to in the same manner as
they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan before the learned
Trial Court against the accused Sukh Ram, Hans Raj and Govind
Singh. It was asserted that a complaint was received at the Police
Station, State Vigilance and Anti-Corruption Bureau, Shimla
stating that petitioner Sukh Ram had appeared in the
matriculation examination in the year 1976 against Roll No.
201421. He was appointed as a Daily Wage Supervisor w.e.f. 1986
till 1996. He was regularized as Mate on 1.1.1997. He joined as a
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Mate in September, 2000 in Sub Division Hatkoti. He was
promoted on 1.1.2002 and his matriculation certificate was
.
demanded. Petitioner Sukh Ram produced a photocopy of the
matriculation certificate duly attested by the Headmaster,
Government Senior Secondary School, Solang. The date of birth
of petitioner Sukh Ram was mentioned as 22.7.1960 in the
of
matriculation certificate. The column of Roll Number on the left
side was blank in the certificate; however, the Sr. No. 0552 on the
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right side was mentioned. The certificate was verified and it was
found that the date of birth was mentioned as 22.7.1956 in the
original certificate, which was overwritten to 22.7.1960.
Secretary, Pradhan of Gram Panchayat, Headmaster, Clerk
Narender Dutt Sharma and petitioner Sukh Ram had conspired to
forge this document. Clerk Narender Dutt Sharma, Executive
Engineer-A.N. Sharma, Secretary and Pradhan of Gram Panchayat
had misused their official position to prepare the wrong record to
confer benefit upon petitioner Sukh Ram. FIR (Ext. PW8/A) was
registered in the police station. Karam Chand (PW-17) conducted
the investigation. Dharam Dass (PW13) produced a copy of the
Pariwar Register (Ext. PW13/A), and Birth and Death Register (Ext.
PW13/C). Another copy of the Pariwar Register (Ext. PW13/D), and
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entry in the Birth and Death Register (Ext. PW13/E) were seized,
vide memo (Ext. PW13/B). Vinit Kumar (PW16) produced a copy of
.
the Admission Register, Order Book, Registerand stamp through
Memorandum (Ext. PW16/A). Admission Register (Ext. PW16/C).
Surender Singh (PW5) produced the record (Ext. PW5/A). Copy of
the Notification (Ext. PW5/B), Office Order (Ext. PW5/C), Copy of
of
verification (Ext.PW5/D), Office Order of Promotion (Ext. PW5/E)
and copy of Office Order (Ext. PW5/F) were seized by the police.
rt
The documents were sent to the FSL for analysis. Karam Chand
recorded the statements of the witnesses as per their versions. It
was found after the investigation that petitioner Sukh Ram had
altered the date of birth in his matriculation certificate in
connivance with Hans Raj. He had also altered his date of birth in
the Panchayat Register in connivance with Govind Singh. Karam
Dass and Kali Ram were real brothers. They had married one
woman Cheti Devi. Petitioner Sukh Ram was the eldest. The
name of the father of petitioner Sukh Ram was recorded as Kali
Ram, which was changed in the Panchayat record to Karam Dass.
The date of birth was altered from 22.7.1956 to 22.7.1960. This
alteration was made in the school on the official typewriter.
Rakesh Kumar Dhiman, the then SDO, HP PWD died on 26.4.2004.
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Similarly, Kanwar Singh, Chowkidar of the school died on
12.9.2003. Hence, the challan was prepared against the petitioner
.
Sukh Ram and other persons.
3. The learned Special Judge (Forests), Shimla held on
9.9.2011 that it is a general practice thatentry in the Panchayat
record isbased on information supplied by the family members
of
and Secretary Gram Panchayat has no investigatory powers;
therefore, the learned Special Judge (Forests), Shimla decided to
rt
proceed against the petitioner Sukh Ram for the commission of
offences punishable under Sections, 420, 467, 468, 171 & 120B of
IPC and Section 13(2) of the Prevention of Corruption Act.
Petitioner Sukh Ram pleaded not guilty and claimed to be tried.
4. The prosecution examined12 witnesses to prove its
case. LC-Babita (PW1) proved the entry in the daily diary.
Narender (PW2) identified the handwriting on the prosecution
sanction and also produced the record. Ajay Kumar Rana (PW3)
produced the death certificate of Rakesh Kumar Dhiman. Karam
Singh(PW4) was posted as Pradhan of Gram Panchayat, Solang.
He found tampering in the Panchayat record. He inquired about
the school record and made acomplaint to various authorities.
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Surender Singh (PW5) produced the record. Amar Nath (PW6)
was posted as Executive Engineer, who had issued the
.
appointment order of petitioner Sukh Ram. Rajinder Kumar (PW7)
produced the original record regarding the declaration of the
result of the matriculation examination. Dayawanti (PW8) proved
the FIR and signing of the documents to FSL. Bhuri Singh (PW9)
of
carried the documents to FSL. Dr. Minakshi Mahajan (PW10)
analysed the documents and issued the report. Jaspal Singh
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(PW11) received the complaint and conducted the preliminary
inquiry. Bhopal Singh (PW12) produced the admission and
withdrawal register from 1957 to 1976. Dharam Dass (PW13) was
posted as Secretary and he produced the record of the Panchayat.
Laxman Chauhan (PW14) produced the record from the PWD
office and proved that the petitioner Sukh Ram had produced the
forged matriculation certificate. R.C. Verma (PW15) issued the
prosecution sanction. Vineet Kumar (PW16) produced the record
of Government Senior Secondary School, Solang. Karam Chand
(PW17) conducted the investigation.
5. The accused in his statement recorded under Section
313 of Cr.P.C. admitted that he was offered a temporary post of
Work Charge Mate and he joined as such in the office of Assistant
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Engineer, Sarswati Nagar HP PWD, Hatkoti on 28.9.2000. He has
also admitted that he was promoted to Work Inspector. He stated
.
that he handed over the Panchayat certificate but did not hand
over the matriculation certificate. He admitted that he had signed
the entry in the service book but he was not aware of the nature of
the document. He admitted that he had appeared in the
of
matriculation examination in the year 1976 and his date of birth
was mentioned as 22.7.1956 in the matriculation certificate. He
rt
admitted that his date of birth was mentioned as 22.7.1956 in the
record of Government Senior Secondary School, Saraswati Nagar.
He admitted that he had made a report to the police that the
original matriculation certificate was missing. He admitted that
the prosecution sanction was granted by the Superintending
Engineer, 14th Circle, HP PWD, Rohru. He admitted that the record
was seized from the HP Board of School Education, Dharamshala
in which his date of birth was mentioned as 22.7.1956. He
admitted that he had declared his date of birth as 22.7.1960 in the
declaration form (Ext. PW5/D). He stated that complainant
Karam Singh was inimical with him and his cousin Gulab Singh
made a report against him regarding impersonation in the sale
deed. Karam Singh filed the complaint due to this enmity. He
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claimed that he was innocent and he was falsely implicated. No
defence was sought to be produced by him.
.
6. Learned Trial Court held that the appointment of the
accused as T-Mate on promotion and declaration of date of birth
by the accused as 22.7.1960 were not in dispute. It was also not in
dispute that the accused had signed the declaration and the
of
entries. There is a presumption that a person putting signatures
on documents does so after accepting the contents as correct. The
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accused admitted that he had passed the matriculation
examination against Roll No. 201421. The copy of the certificate
produced by the accused showed his date of birth as 22.7.1960,
whereas the original document showed his date of birth as
22.7.1956. The date of birth of an employee confers valuable
rights upon him. It decides the date of superannuation. The
accused wasunder an obligation to disclose the correct date of
birth. He had declared his date of birth as 22.7.1960, whereas his
correct date of birth is 22.7.1956. He would get an extension of
four years by his false declaration. He would be gettinga salary for
an extended period, for which he was not entitled under the law.
There was no evidence that he had tampered with the
matriculation certificate; however, there was sufficient evidence
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to show that he had used a forged document as genuine for
cheating; hence the accused was convicted and sentenced as
.
aforesaid.
7. Being aggrieved from the judgment and order passed
by the learned Trial Court, the present appeal has been filed
asserting that the learned Trial Court erred in convicting the
of
accused. The accused had joined the post of Work Charge Mate
and signed the entry (Ext. PW5/G); however, he never submitted a
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copy of the matriculation certificate. The statement of Laxman
Chauhan is inherently improbable because he stated that he had
seen the copy of the matriculation certificate for the first time
with the Vigilance Department. Once learned Trial Court had held
that the accused had not forged the document, the accused should
not have been convicted for using the forged document as
genuine. There was no evidence to show that the accused had
tampered with the Panchayat record. The prosecution had failed
to prove its case beyond reasonable doubt and the learned Trial
Court erred in relying upon the prosecution version; hence it was
prayed that the present appeal be allowed and the judgment and
order passed by the learned Trial Court be set aside.
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8. I have heard Ms. Devyani Sharma, learned Senior
Counsel assisted by Mr. Basant Pal Thakur, learned counsel for the
.
petitioner. Mr. R.P. Singh and Mr. Prashant Sen learned Deputy
Advocates General for the respondent-State.
9. Ms. Devyani Sharma, learned Senior Counsel
submitted that the prosecution had presented the challan against
of
four persons; however, the Court had taken cognizance against
the accused Sukh Ram. Once the Court did not accept the
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prosecution version that the document was forged by the accused
in connivance with the Headmaster or the Panchayat record was
forged in connivance with the Secretary, the accused could not
have been convicted for using the forged document as genuine.
The plea taken bythe accused that he had not produced the
matriculation certificate was made highly improbable by the
statement of Laxman Chauhan in his cross-examination that he
had seen the copy of the matriculation certificate with the
Vigilance Department for the first time. This admission clearly
shows that the accused had not submitted any documents.
Learned Trial Court erred in holding that there is a presumption
that signatures were put on a document after reading it. Learned
Trial Court relied upon the judgment of the Hon'ble Supreme
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Court in a civil case, which could not have been applied to a
criminal case. There was no evidence of the actual benefit derived
.
by the accused from the alteration in the date of birth; hence she
prayed that the present appeal be allowed and the accused be
acquitted. She submitted in the alternative that the accused
should be granted the benefit of the Probation of Offenders Act
of
and the learned Trial Court erred in denying such benefit to the
accused. rt
10. Mr. R.P. Singh and Mr. Prashant Sen, learned Deputy
Advocates General supported the judgment and order passed by
the learned Trial Court and submitted that it was duly proved that
the accused had submitted the copy of the matriculation
certificate containing his date of birth as 22.7.1960. The accused
was aware of his correct date of birth but had used the document
containing the altered date of birth to cheat the Government. It
was duly proved by the record of the HP School of Board
Education, Dharamshala that the correct date of birth of the
accused is 22.7.1956 and not 22.7.1960; therefore, it was duly
proved that the matriculation certificate was altered after it was
written, which proved the forgery. The accused had used a forged
document as genuine knowingfully well that it did not mention
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his correct date of birth. The learned Trial Court had rightly held
that the accused would get the benefit of four years of extended
.
service; therefore, he had taken advantage of his position to
enrich himself. There is no infirmity in the judgment and order
passed by the learned Trial Court; hence it was prayed that the
present appeal be dismissed.
of
11. I have given considerable thought to the submissions
at the bar and have gone through the records carefully.
rt
12. It was not disputed by the accused in his statement
recorded under Section 313 of Cr.P.C. that his correct date of birth
is 22.7.1960. He also did not dispute that the entry in his service
record showed his date of birth as 22.7.1960 and this entry was
signed by him. He also admitted that he had appeared in the
matriculation examination from HP Board of School Education,
Dharamshala in the year 1976 under Roll No. 201421 and showed
his date of birth as 22.7.1956. He also admitted that his date of
birth was mentioned as 22.7.1956 in the school record (Ext.
PW12/B). He admitted that he had reported the matter to the
police and entry no.5 was recorded that he had lost his original
matriculation certificate. Much of the prosecution case was
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admitted by the accused in his statement recorded under Section
313 of Cr.P.C.
.
13. It was laid down by the Hon'ble Supreme Court in State
of Maharashtra vs. Sodhi Sukhdev Singh 1992(3) SCC 700 that the
Courts can rely upon the statement of the accused made under
section 313 Cr.P.C. It was observed:
of
"51. That brings us to the question whether such a statement
recorded under S. 313 of the Code can constitute the sole basis for
conviction. Since no oath is administered to the accused, the
rt
statements made by the accused will not be evidence strict sensu.
That is why sub-sec. (3) says that the accused shall not render
himself liable to punishment if he gives false answers. Then
comes sub-sec. (4) which reads:
"(4). The answers given by the accused may be taken into
consideration in such inquiry or trial, and put in evidence
for or against him in any other inquiry into, or trial for,
any other offence which such answers may tend to show
he has committed."
Thus the answers given by the accused in response to his
examination under S. 313 can be taken into consideration in such
an inquiry or trial. This much is clear on a plain reading of the
above sub-section. Therefore, though not strictly evidence, sub-
sec. (4) permits that it may be taken into consideration in the
said inquiry or trial. See State of Maharashtra v.R.B. Chowdhari
(1967) 3 SCR 708 : (AIR 1968 SC 110). This Court in the case of
Hate Singh v. State of Madhya Bharat, 1953 Cri LJ 1933:(AIR 1953
SC 468) held that an answer given by an accused under S. 313
examination can be used for proving his guilt as much as the
evidence given by a prosecution witness. In Narain Singh v. State
of Punjab (1963) 3 SCR 678: (1964 (1) Cri LJ 730) this Court held
that if the accused confesses to the commission of the offence
with which he is charged the Court may, relying upon that
confession, proceed to convict him. To state the exact language
in which the three-Judge Bench answered the question it would
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be advantageous to reproduce the relevant observations at pages
684-685 (of SCR) : (at p.733 of Cri LJ):
"Under S. 342 of the Code of Criminal procedure by the
first sub-section, insofar as it is material, the Court may at
.
any stage of the enquiry or trial and after the witnesses for
the prosecution have been examined and before the
accused is called upon for his defence shall put questions
to the accused person for the purpose of enabling him to
explain any circumstance appearing in the evidence
against him. Examination under S.342 is primarily to be
directed to those of matters on which evidence has been
of
led for the prosecution to ascertain from the accused his
version or explanation - if any, of the incident which
forms the subject matter of the charge and his defence. By
sub-sec. (3), the answers given by the accused may "be
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taken into consideration" at the enquiry or the trial. If the
accused person in his examination under S. 342 confesses
to the commission of the offence charged against him the
Court relying upon that confession, proceeds to convict
him, but if he does not confess and in explaining
circumstance appearing in the evidence against him sets
up his own version and seeks to explain his conduct
pleading that he has committed no offence, the statement
of the accused can only be taken into consideration in its
entirety."
14. This question was again considered by the Hon'ble
Supreme Court in Mohan Singh Vs Prem Singh, 2002 (10) SCC 236,
and it was held that the statement made by the accused under
Section 313 Cr.P.C. can be used to lend credence to the evidence led
by the prosecution, but such statement cannot form the sole basis
for conviction. It was observed:-
"28.The statement made in defence by the accused under Section
313, Cr.P.C. can certainly be taken aid of to lend credence to the
evidence led by the prosecution, but only a part of such
statement under Section 313 of the Code of Criminal Procedure
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cannot be made the sole basis of his conviction. The law on the
subject is almost settled that statement under Section 313 Cr.P.C.
of the accused can either be relied on in whole or in part. It may
also be possible to rely on the inculpatory part of his statement if
.
the exculpatory part is found to be false on the basis of the
evidence led by the prosecution. See Nishi Kant Jha v. State of
Bihar, (AIR 1969 SC 422):
"In this case, the exculpatory part of the statement in Ex.
6 is not only inherently improbable but is contradicted by
the other evidence. According to this statement, the
injury, which the appellant received was caused by the
of
appellant's attempt to catch hold of the hand of Lal
Mohan Sharma to prevent the attack on the victim. This
was contradicted by the statement of the accused himself
under S. 342 Cr.P.C. to the effect that he had received the
rt
injury in a scuffle with a herdsman. The injury found on
his body when he was examined by the doctor on 13th
October 1961 negatives both these versions. Neither of
these versions accounts for the profuse bleeding which led
to his washing his clothes and having a bath in the river
Patro, the amount of bleeding and the washing of the
blood stains being so considerable as to attract the
attention of Ram Kishore Pandey, PW 17 and asking him
about the cause thereof. The bleeding was not a simple
one as his clothes all got stained with blood as also his
books, his exercise book and his belt and shoes. More than
that the knife which was discovered on his person was
found to have been stained with blood according to the
report of the Chemical Examiner. According to the post-
mortem report, this knife could have been the cause of the
injuries on the victim. In circumstances like these, there
being enough evidence to reject the exculpatory part of
the statement of the appellant in Ex. 6 the High Court had
acted rightly in accepting the inculpatory part and
piercing the same with the other evidence to come to the
conclusion that the appellant was the person responsible
for the crime."
15. It was laid down in Ramnaresh & Ors versus State of
Chhattisgarh, 2012 (4) SCC 257, that the statement of the accused
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under Section 313 of Cr.P.C. insofar as it supports the case of the
prosecution can be used against him for rendering conviction. It
.
was observed:-
"22. It is a settled principle of law that the obligation to put
material evidence to the accused under Section 313 Cr.P.C. is
upon the Court. One of the main objects of recording a statement
under this provision of the Cr.P.C. is to give an opportunity to the
accused to explain the circumstances appearing against him as
of
well as to put forward his defence if the accused so desires. But
once he does not avail of this opportunity, then consequences in
law must follow. Where the accused takes benefit of this
opportunity, then his statement made under Section 313 Cr.P.C.,
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in so far as it supports the case of the prosecution, can be used
against him for rendering conviction. Even under the latter, he
faces the consequences in law."
16. This position was reiterated in Ashok Debbarma @
Achak Debbarma vs. State of Tripura, 2014 (4) SCC 747, and it was
held that the statement of the accused recorded under Section 313
of Cr.P.C. can be used to lend corroboration to the statements of
prosecution witnesses. It was held:-
"24. We are of the view that, under the Section 313 statement, if
the accused admits that, from the evidence of various witnesses,
four persons sustained severe bullet injuries by the firing by the
accused and his associates, that admission of guilt in Section 313
statement cannot be brushed aside. This Court in State of
Maharashtra v. Sukhdev Singh and another (1992) 3 SCC 700 held
that since no oath is administered to the accused, the statement
made by the accused under Section 313 CrPC will not be evidence
strictosensu and the accused, of course, shall not render himself
liable to punishment merely on the basis of answers given while
he was being examined under Section 313 CrPC. But, Sub-section
(4) says that the answers given by the accused in response to his
examination under Section 313 CrPC can be taken into
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consideration in such an inquiry or trial. This Court in Hate
Singh Bhagat Singh (supra) held that the answers given by the
accused under Section 313 examination can be used for proving
his guilt as much as the evidence given by the prosecution
.
witness. In Narain Singh v. State of Punjab (1963) 3 SCR 678, this
Court held that when the accused confesses to the commission of
the offence with which he is charged, the Court may rely upon
the confession and proceed to convict him.
25. This Court in Mohan Singh v. Prem Singh and another (2002)
10 SCC 236 held that the statement made in defence by the
accused under Section 313 CrPC can certainly be taken aid of to
of
lend credence to the evidence led by the prosecution, but only a
part of such statement under Section 313 CrPC cannot be made
the sole basis of his conviction. In this connection, reference may
also be made to the judgment of this Court in Devender Kumar
rt
Singla v. Baldev Krishan Singla (2004) 9 SCC 15 and Bishnu Prasad
Sinha and another v. State of Assam (2007) 11 SCC 467. The
above-mentioned decisions would indicate that the statement of
the accused under Section 313 CrPC for the admission of his guilt
or confession as such cannot be made the sole basis for finding
the accused guilty, the reason being he is not making the
statement on oath, but all the same, the confession or admission
of guilt can be taken as a piece of evidence since the same lends
credence to the evidence led by the prosecution."
17. Therefore, it is apparent from the judgments of the
Hon'ble Supreme Court that the Court can rely upon the
statements of the accused made under Section 313 of Cr.P.C. to
lend assurance to the prosecution case.
18. Rajinder Kumar (PW7) stated that he has been working
in the Education Board since 1984. He had brought the original
gazette and original result tabulation sheet. Sukh Ram Nimta son
of Kali Ram Nimta appeared for the matriculation examination
under Roll No. 201421 and passed the same by obtaining 510
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marks. His date of birth was recorded as 22.7.1956. He produced a
copy of the Gazette (Ext. PW7/A) and a duplicate mark sheet (Ext.
.
PW7/B). He stated that the photocopy of the matriculation
certificate seems to have been made from the original issued by
the Board but the date of birth was mentioned as 22.7.1960 and
the Roll Numberdid not appear in it. He stated in his cross-
of
examination that the examination application was filled by the
candidate and verified by the school. The record is maintained by
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the Board. He admittedthat any correction made by the Court is
also recorded by the Board. He admitted that sometimes a mistake
occurs while preparing the result. He admitted that there was no
date of birth in the tabulation sheet produced by him.
19. Ms. Devyani Sharma, learned Senior Counsel heavily
relied upon the cross-examination of this witness that an error
occurs sometimeswhile preparing the duplicate marks sheet. She
submitted that the possibility of error in the case of the accused
could not be ruled out. This submission cannot be accepted. First,
the accused nowhere disputed that his correct date of birth is
22.7.1956, hence there was no possibility of any error in the date
of birth of the accused. Second the gazette (Ext. PW7/A) mentions
the date of birth as 22.7.1956. The duplicate certificate also
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mentions the date of birth as 22.7.1956. The tabulation sheet
merely contains the result statement, roll number, name, name of
.
the school and the marks obtained. There is no column of the date
of birth and the date of birth of any of the candidates has not been
mentioned in the tabulation sheet; hence the absence of the date
of birth of the accused in the tabulation sheet will not make any
of
difference.
20. Vineet Kumar(PW-16) proved the admission register
rt
from 1.9.1969 to 22.7.1956, order book register dated 18.11.1999 to
15.11.1999. There was an entry of admission of Sukh Ram with the
date of birth as 22.7.1956. He stated in his cross-examination that
the entry was not recorded in his handwriting. The entry was
made based on the Primary School Certificate and he had not seen
other records of Sukh Ram.
21. The prosecution never claimed that he had prepared
the record. He had simply produced the original record before the
Court, which clearly shows that at the time of admission of Sukh
Ram, his date of birth was recorded as 22.7.1956. This entry was
made in 1974 and was brought from the proper custody;
therefore, it is to be treated as correct. It was made by an official
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in the discharge of his official duty. A presumption of correctness
is attached to the official record under Section 114 of the Indian
.
Evidence Act. This presumption was not rebutted by the accused,
rather the accused stated in reply to Question No.9 that his date of
birth was recorded as 22.7.1956 at the time of his admission to the
school. Therefore, it was duly proved by the statement of these
of
two witnesses coupled with the statement of the accused recorded
under Section 313 of Cr.P.C. that the correct date of birth of the
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accused was 22.7.1956 and this date of birth was reflected in the
original matriculation certificate.
22. LC Babita (PW-1) proved the entryin the daily diary
(Ext. PW1/A) in which the accused had made a report regarding
the misplacing of his matriculation certificate. The accused
admitted in his statement recorded under Section 313 of Cr.P.C. in
reply to question No.10 that he had recorded an entry regarding
the loss of his original matriculation certificate.Thus it is duly
proved that the accused had represented that he had lost his
matriculation certificate in the year 2008.
23. Laxman Chauhan (PW-14) stated that the accused
Sukh Ram gave him a matriculation certificate and a Panchayat
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certificate. The matriculation certificate was attested by the
Headmaster. Sukh Ram joined on 28.9.2000 and the joining
.
report was marked to him. He made an entry (Ext. PW5/G), which
was attested by R.K. Dhiman. The entries were made on the basis
of the certificate furnished. The date of birth was entered as
22.7.1960. The service book and certificate were sent to the
of
Executive Engineer's office. He stated in his cross-examination
that the joining report was sent to the head office. One cannot join
rt
without the documents asked for. The entry was made based on
the matriculation certificate furnished by the accused. The name
of the father of the accused was recorded as Kali Ram,whereas the
name of the father of the accused was recorded as Karam Dass. He
was called by the vigilance once. He denied that he had made the
wrong entries. He admitted that the certificate (Ext. PW14/A) was
seen for the first time with the Vigilance. He was re-examined by
the learned Public Prosecutor. He admitted that (Ext. PW13/A)
and (Ext. PW14/A)were handed over to him at the time of joining
by the accused. He stated in his cross-examination by the accused
that entries were filled by Shamsher Singh, Junior Engineer and
he had seen the documents,based on which he had made the
entries. He was permitted to be cross-examined by the learned
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Public Prosecutor and he denied that the service book was not
filled by him but by the Junior Engineer.
.
24. Ms. Devyani Sharma, learned Senior Counsel for the
accused submitted that the testimony of this witness is highly
contradictory and the learned Trial Court erred in relying upon his
testimony. He admitted that he had seen the certificate with the
of
Vigilance Department. He also admitted that the entry was filled
by the Junior Engineer and not by him, which demolishes his
rt
testimony in the examination-in-chief that he had made the
entry (Ext. PW5/G). This submission cannot be accepted. Learned
Trial Court had rightly pointed out that the testimony of a witness
has to be read as a whole and any stray sentence cannot be picked
up from the testimony to discard the same. It was laid down by the
Hon'ble Supreme Court of India in Boramma v. Krishna Gowda,
(2000) 9 SCC 214: 2000 SCC OnLine SC 759that it is not permissible
to pick up an answer from the cross-examination of the witness
to draw inferences from it in isolation. It was observed at page
217:
"10. Ms Agarwal has read to us the statement of PW 2. In the
cross-examination, PW 2 stated that he had not offered at any
time to Boramma the amount and that he had not deposited any
amount in court. Explanation to clause (c) of Section 16 makes it
clear that where a contract involves the payment of money, it is
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not essential for the plaintiff to actually tender to the defendant
or to deposit in court any money, except when so directed by the
court. So the said portion of the statement of PW 2 is
inconsequential and does not in any way show that the plaintiffs
.
have not been ready and willing to perform their part of the
contract. There is yet another sentence to which great
importance is attached by the learned counsel to contend that
the respondents have not been ready after the filing of the suit
and it reads: "I am unable to deposit the amount." In our view, it
will not be a sound rule of appreciation of evidence to pick up an
answer from the cross-examination of a witness and draw
inference taking it in isolation. The court must see as to how
of
consistent the testimony of the witness is and as to how that
answer fits in with the rest of the evidence and probabilities of
the case. From this sentence stated in the cross-examination
where the question is also not recorded, we are unable to infer
rt
the inability of the respondents to perform their part of the
contract after filing the suit nor can we say that the findings
recorded by the trial court, the first appellate court and the High
Court that the plaintiffs have been ready and willing to perform
their part of the contract have been erroneously arrived at."
25. This witness had categorically stated in the
examination-in-chief that the certificate was handed over to him
and he had handed over it to the Vigilance. He even denied in the
cross-examination that the certificate was handed over to him by
the Vigilance and not by the accused. He even denied the
suggestion that the certificate was not handed over by the
accused; therefore, his consistent stand was that the certificate
was handed over by the accused and not by theVigilance; hence
the stray sentence that he had seen the certificate for the first
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24
time with the Vigilance cannot be taken out of context to discard
his whole testimony.
.
26. The certificate (Ext. PW4/A) shows overwriting and
introduction of the word '60'. The date of birth in figures has also
been mentioned as 22.7.1960. Since it is an admitted version that
the date of birth of the accused was 22.7.1956 and not 22.7.1960;
of
therefore, the entry in the copy of the matriculation certificate as
22.7.1960 is incorrect.
rt
27. The entry in the service book (Ext. PW5/G) regarding
date of birth shows 22.7.1960 (Twenty-Two July Nineteen
HundredSixty). This entry bears the thumb impression, finger
impression and the signatures of the accused. The accused did not
dispute his signatures on theentry in the service book, in his
statement recorded under Section 313 of Cr.P.C., rather he stated
that he had only put the signatures and was not aware of the
document. Learned Trial Court had rightly held that when a
person signs a document, there is a presumption in the absence of
any proof of force or fraud that he had read the document
properly and put the signatures after understanding the same.
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28. It was laid down bythe Hon'ble Supreme Court in
Grasim Industries Ltd. v. Agarwal Steel, (2010) 1 SCC 83 that when a
.
person signs a document, there is a presumption that he hasread
the document properly and understood the same. It was
observed:
"In our opinion, when a person signs a document, there is a
of
presumption, unless there is proof of force or fraud, that he has
read the document properly and understood it and only then he
has affixed his signatures thereon, otherwise no signature on a
document can ever be accepted. In particular, businessmen,
rt
being careful people (since their money is involved) would have
ordinarily read and understood a document before signing it.
Hence the presumption would be even stronger in their case.
There is no allegation of force or fraud in this case. Hence it is
difficult to accept the contention of the respondent while
admitting that the document, Ext. D-8 bears his signature that it
was signed under some mistake. We cannot agree with the view
of the High Court on this question. On this ground alone, we
allow this appeal, set aside the impugned judgment of the High
Court and remand the matter to the High Court for expeditious
disposal in accordance with law."
29. This judgment was followed by Jharkhand High Court
in Sanjay Kumar Singh v. State of Jharkhand, 2012 SCC OnLine Jhar
2183wherein it was observed:
"In this regard, it was further submitted that the plea which is
being taken by the informant that he had simply put his
signature at the relevant place over the transfer slips whereas
contents had been filled up by the petitioner is not acceptable for
the reason that whatever entries were made, it was within the
personal knowledge of the informant which were never known to
the petitioner and as such, allegation that forms were filled up by
this petitioner in order to defraud the informant is liable to be
rejected outrightly. In law also the aforesaid plea is not available
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26
to the informant as once the informant has accepted about
affixing of his and his wife's signature, presumption would be
there of the correctness of the content.
30. Learned Trial Court had also relied upon the judgment
.
in Grasim Industries (Supra). Ms. Devyani Sharma, learned Senior
Counsel submitted that the learned Trial Court erred in relying
upon the proposition of law laid down in Civil Law while deciding
of
a criminal case. This criticism is not justified. It has been
observed in the Law of Evidence by Rattan Lal and Dhiraj Lal 26th
rt
Edition 2022 at page 188 that the rule of evidence are same in civil
and criminal proceedings but for the applicability of certain
provisions.It has been observed:
"The rules of evidence are in general the same in civil and
criminal proceedings and bind alike the State and the citizen, the
prosecutor and the accused, the plaintiff and the defendant, the
counsel and the client. There are, however, some exceptions, eg
the doctrine of estoppels applies to civil proceedings only (Best,
12th Edition, section 94, p 81), the provisions relating to
confessions (sections 24-30), the character of persons appearing
before courts (sections 53,54), and incompetence of parties as a
witness (section 120), are peculiar to criminal proceedings."
31. Therefore, the rules of evidence are not different in
civil and criminal law and the learned Trial Court cannot be
faulted for applying the judgment dealing with the civil law in a
criminal law because the principle remains the same.
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32. Ms. Devyani Sharma, learned Senior Counsel for the
accused submitted that the other accused were discharged by the
.
learned Trial Court and the learned Trial Court erred in trying and
convicting the present accused. This submission is not acceptable.
The learned Special Judge had held in the order dated 9.9.2011 that
the copy of the tampered document was attested by Hans Raj and
of
there was nothing to show that he knew that it was forged.
Similarly, the allegations against Govind Singh were that he had
rt
made the entry in the Panchayat record but as per the learned
Trial Court he had no investigatory powers and he could not have
been arrayed as an accused merely by recording the entries.
Therefore, the learned Trial Court had not proceeded against Hans
Raj and Govind Singh for want of evidence that Hans Raj had
attested the certificate and Govind Singh had made the entry
despite the knowledge of their incorrectness. These findings will
not affect the role of the present accused. The prosecution had
alleged that the accused knew his correct date of birth but he had
used a certificate containing incorrect date of birth to secure
advantage of extension of service by showing his year of birth
incorrectly. The role of the accused was different from others and
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he cannot claim discharge on the ground that the other two
accused were discharged.
.
33. Ms. Devyani Sharma, learned Senior Counsel for the
accused submitted that the certificate was produced in the year
2000 and as per the prosecution case, regularization of the
accused was made in the year 1999 as per office order (Ext.
of
PW5/C). His verification was conducted in 2002 as per the letter
(Ext. PW5/D); therefore, there was no justification for the accused
rt
to submit his certificate in the year 2000. This submission
cannot be accepted. The Office Order (Ext. PW5/C) was issued on
16.7.1999. The entries in the service book were made on 30.9.2000
as per the date mentioned in the copy (Ext.PW5/G). When the
service book was being prepared, a necessity arose to get the
certificate for recording the date of birth certificate and, the
production of the matriculation certificate in the year 2000 will be
natural. Moreover, as per the R&P Rules of the post of Work
Inspector, work charged brought on a regular cadre, the minimum
educational qualification is matriculation from a recognized
University for direct recruits. Rule 8 provides that the age will not
apply in case of promotes/appointees but educational
qualification will be required; therefore, it was essential for the
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29
accused to submit proof that he had passed the matriculation
examination before he could have been regularized and the
.
submission of the certificate in the year 2000 after the issuance of
the office order regularizing the accused will be quite natural.
34. The accused stated in his statement recorded under
Section 313 of Cr.P.C. that he had not submitted the matriculation
of
certificate but he had only submitted the certificate from Gram
Panchayat. This is not acceptable because of the positive evidence
rt
of Laxman Chauhan (PW14), who specifically stated that the
accused had handed over the matriculation certificate and
Panchayat certificate. Further as noticed above, the R&P Rules
also required the handing over of the certificate in support of
educational qualification and the accused could not have been
regularized without submitting the educational qualification
certificate, hence the statement of Laxman Chauhan (PW14) as
corroborated by the entry in the service record has to be accepted
as correct that the matriculation certificate was also produced
that is why the entry of matric was made in the service book (Ext.
PW5/G).
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35. Thus, the learned Trial Court had rightly held that the
accused had submitted a copy of the matriculation certificate
.
showing his date of birth as 22.7.1960. Since, it is not disputed
that the date of birth of the accused is 22.7.1956; therefore, a
wrong representation was made by submitting the certificate and
signing the entry in the paper book regarding the date of birth.
of
36. The Learned Trial Court had rightly held that the
certificate used by the accused resulted in an increased service
rt
span, which constituted a pecuniary advantage for him for a
period for which he was not entitled under the law. It was laid
down by the Hon'ble Supreme Court in K.R. Purushothaman v.
State of Kerala, (2005) 12 SCC 631that a public servant should
obtain for himself or for any other person any valuable thing or
pecuniary advantages by corrupt or illegal meansto attract the
provisions of Section 13(1)(d) of the Prevention of Corruption Act.
It was observed:
"21. To attract the provisions of Section 13(1)(d) of the
Prevention of Corruption Act, a public servant should obtain for
himself or for any other person any valuable thing or pecuniary
advantage by corrupt or illegal means or by abusing his position
as a public servant. Therefore, for convicting a person under the
provisions of Section 13(1)(d) of the Prevention of Corruption
Act, 1988, there must be evidence on record that the accused
has obtained for himself or any other person, any valuable thing
or pecuniary advantage by corrupt or illegal means or by
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31
abusing his position as a public servant obtains for himself, or
any person, any valuable thing, or pecuniary advantage without
any public interest. What we find in the present case is that
there is no evidence on record to prove these facts that the
.
appellant-accused had obtained for himself or any other person
any valuable thing or pecuniary advantage. We may clarify that
the charge of the conspiracy being not proved under Section
120-B IPC, the appellant-accused could not be held responsible
for the act done by A-3. The prosecution has failed to prove that
he has obtained for himself or any other person any valuable
thing or pecuniary advantage. Similarly, we do not find any
evidence on record to convict the appellantaccused under
of
Sections 403 and 477-A IPC.
37. Section 43 of the Indian Penal Code defines the term
rt
illegal as applicable to everything, which is an offence or which is
prohibited by law. Thus, everything which is an offence or
prohibited by law will fall within the definition of illegal. In the
present case, the date of birth was altered ina copy of the
certificate after it was written; therefore, the same will fall within
the definition of forgery as defined under Section 463 and making
a false document as defined under Section 464 which constitutes
an offence punishable under Section 465. Thus, the alteration of a
document after it was written is punishable under law and using
such document as genuine is punishable under Section 471.
Thus,the accused has secured a pecuniary advantage to himself by
an illegal means and the requirement of Section 13(1)(d) of the
Prevention of Corruption Actwas fully satisfied. Thus, the learned
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32
Trial Court had rightly convicted the accused of the commission
of an offence punishable under section 471 of IPC.
.
38. The ingredients of cheating were explained by the
Hon'ble Supreme Court in S.W. Palanitkar v. State of Bihar, (2002)
1 SCC 241as under:
of
"10. The ingredients of an offence of cheating are: (i) there
should be fraudulent or dishonest inducement of a person by
deceiving him, (ii)(a) the person so deceived should be induced
to deliver any property to any person or to consent that any
rt
person shall retain any property; or (b) the person so deceived
should be intentionally induced to do or omit to do anything
which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act of omission should be one
which causes or is likely to cause damage or harm to the person
induced in body, mind, reputation or property.
11. One of us (D.P. Mohapatra, J.), speaking for the Bench,
in Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC
168: 2000 SCC (Cri) 786] on facts of that case, has expressed thus:
(SCC p. 177, para 15)
"15. In determining the question it has to be kept in mind
that the distinction between mere breach of contract and
the offence of cheating is a fine one. It depends upon the
intention of the accused at the time of inducement which
may be judged by his subsequent conduct but for this
subsequent conduct is not the sole test. Mere breach of
contract cannot give rise to criminal prosecution for
cheating unless fraudulent or dishonest intention is
shown right at the beginning of the transaction, that is the
time when the offence is said to have been committed.
Therefore it is the intention which is the gist of the
offence. To hold a person guilty of cheating it is necessary
to show that he had fraudulent or dishonest intention at
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33
the time of making the promise. From his mere failure to
keep up promise subsequently such a culpable intention
right at the beginning, that is, when he made the promise
cannot be presumed."
.
(emphasis supplied)
12. Finding that the ingredients of the offence of cheating and its
allied offences had not been made out, this Court interfered with
the order of the High Court and quashed the criminal
proceedings.
of
13. In G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693: 2000 SCC (Cri)
733] this Court in para 7 has stated thus: (SCC pp. 696-97)
"7. As mentioned above, Section 415 has two parts. While
rt
in the first part, the person must 'dishonestly' or
'fraudulently' induce the complainant to deliver any
property; in the second part, the person should
intentionally induce the complainant to do or omit to do a
thing. That is to say, in the first part, inducement must be
dishonest or fraudulent. In the second part, the
inducement should be intentional. As observed by this
Court in Jaswantrai Manilal Akhaney v. State of
Bombay [AIR 1956 SC 575: 1956 Cri LJ 1116] a guilty
intention is an essential ingredient of the offence of
cheating. In order, therefore, to secure the conviction of a
person for the offence of cheating, 'mens rea' on the part
of that person, must be established. It was also observed
in Mahadeo Prasad v. State of W.B. [AIR 1954 SC 724: 1954
Cri LJ 1806] that in order to constitute the offence of
cheating, the intention to deceive should be in existence at
the time when the inducement was offered."
(emphasis supplied)
14. In Trisuns Chemical Industry v. Rajesh Agarwal [(1999) 8 SCC
686: 2000 SCC (Cri) 47] dealing with the effect of existence of
arbitration clause in the agreement on criminal prosecution on
the ground that civil proceedings are also maintainable, this
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Court has held that quashing of FIR or a complaint exercising
power under Section 482 CrPC should be limited to a very
extreme exception; merely because an act has a civil profile is not
enough to stop action on the criminal side. It is further held that
.
a provision made in the agreement for referring the disputes to
arbitration is not an effective substitute for a criminal
prosecution when the disputed act constitutes a criminal offence.
39. A similar view was taken in G.V. Rao v. L.H.V. Prasad,
(2000) 3 SCC 693as under:
of
"4. "Cheating" is defined in Section 415 of the Penal Code, 1860
which provides as under:
rt
"415. Cheating.--Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to
consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit
to do anything which he would not do or omit if he were
not so deceived, and which act or omission causes or is
likely to cause damage or harm to that person in body,
mind, reputation or property, is said to 'cheat'.
Explanation.--A dishonest concealment of facts is a
deception within the meaning of this section."
5. The High Court quashed the proceedings principally on the
ground that Chapter XVII of the Penal Code, 1860 deals with the
offences against properties and, therefore, Section 415 must also
necessarily relate to the property which, in the instant case, is
not involved and, consequently, the FIR was liable to be quashed.
The broad proposition on which the High Court proceeded is not
correct. While the first part of the definition relates to property,
the second part does not necessarily relate to property. The
second part is reproduced below:
"415. ... intentionally induces the person so deceived to do
or omit to do anything which he would not do or omit if he
were not so deceived, and which act or omission causes or
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35
is likely to cause damage or harm to that person in body,
mind, reputation or property, is said to 'cheat'."
6. This part speaks of intentional deception which must be
.
intended not only to induce the person deceived to do or omit to
do something but also to cause damage or harm to that person in
body, mind, reputation or property. The intentional deception
presupposes the existence of a dominant motive of the person
making the inducement. Such inducement should have led the
person deceived or induced to do or omit to do anything which he
would not have done or omitted to do if he were not deceived.
of
The further requirement is that such an act or omission should
have caused damage or harm to body, mind, reputation or
property.
rt
7. As mentioned above, Section 415 has two parts. While in the
first part, the person must "dishonestly" or "fraudulently"
induce the complainant to deliver any property; in the second
part, the person should intentionally induce the complainant to
do or omit to do a thing. That is to say, in the first part,
inducement must be dishonest or fraudulent. In the second part,
the inducement should be intentional. As observed by this Court
in JaswantraiManilalAkhaney v. State of Bombay [AIR 1956 SC
575: 1956 Cri LJ 1116: 1956 SCR 483] a guilty intention is an
essential ingredient of the offence of cheating. In order,
therefore, to secure the conviction of a person for the offence of
cheating, "mens rea" on the part of that person, must be
established. It was also observed in Mahadeo Prasad v. State of
W.B. [AIR 1954 SC 724: 1954 Cri LJ 1806] that in order to
constitute the offence of cheating, the intention to deceive
should be in existence at the time when the inducement was
offered.
8. Thus, so far as the second part of Section 415 is concerned,
"property", at no stage, is involved. Here it is the doing of an act
or omission to do an act by the complainant, as a result of
intentional inducement by the accused, which is material. Such
inducement should result in the doing of an act or omission to do
an act as a result of which the person concerned should have
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36
suffered or was likely to suffer damage or harm in body, mind,
reputation or property. In an old decision of the Allahabad High
Court in Empress v. Sheoram [(1882) 2 AWN 237], it was held by
Mahmood, J.:
.
"That to palm off a young woman as belonging to a caste different to the one to which she really belongs, with the object of obtaining money, amounts to the offence of cheating by personation as defined in Section 416 of the Penal Code, 1860, which must be read in the light of the preceding Section 415."
of
40. Ms. Devyani Sharma, learned Senior Counsel relied upon the judgment of the Hon'ble Supreme CourtinRam Jas v.
rt State of U.P., (1970) 2 SCC 740 to submit that there should be a fraudulent or dishonest inducement before a person can be held guilty of cheating. Reliance was placed on the following paragraphs:
"3. In recording this finding and conviction, the High Court lost sight of the fact that no such charge was framed against the appellant in the trial court. As we have indicated above, the persons, who were cheated or attempted to be cheated, referred to in the charges framed against the appellant, were Madan Lal, Chunni Lal, or the office of the Relief and Rehabilitation-cum-
Settlement Officer, Saharanpur. There was no charge at all relating to any cheating or attempting to cheat the Oath Commissioner. In fact, the case was never brought to Court with the intention of obtaining conviction of the appellant for any offence of cheating in respect of the Oath Commissioner. Not only was there no charge in this respect, but, in addition, the appellant, when questioned under Section 342 of the Code of Criminal Procedure after the prosecution evidence had been recorded, was not asked to explain evidence relating to such a charge of cheating the Oath Commissioner. No doubt, there was mention of the commission of forgery of affidavits; but the mention of the commission of that offence could not possibly ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 37 lead the appellant to infer that he was liable to be convicted for abetting the offence of cheating the Oath Commissioner. Further, in recording this conviction, the High Court did not even case to examine in detail whether all the ingredients of the offence had .
been established by the prosecution evidence. The only finding of fact was that the appellant, who was known to the Oath Commissioner, wrongly identified some other person as Govind Ram and got the affidavit attested by the Oath Commissioner as if it was being sworn by Govind Ram. This act of wrong identification committed by the appellant cannot amount to the offence of cheating by personation. Cheating is defined in Section 415 IPC, which is as follows:
of "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person rt shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'."
The ingredients required to constitute the offence of cheating are--
(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
4. In the present case, the finding of fact recorded only shows that the Oath Commissioner was induced to attest the affidavit by the deception practised by the appellant in wrongly identifying a person as Govind Ram when he was in fact not Govind Ram. That act done by the Oath Commissioner of ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 38 attesting the affidavit could not, however, possibly cause any damage or harm to the Oath Commissioner in body, mind, reputation or property. The Oath Commissioner was obviously not induced to deliver any property to anybody by this wrong .
identification, nor was he induced to consent that any person should retain any property. Thus, the facts found did not constitute the offence of cheating at all. The conviction for an offence under Section 419, substantively or with the aid of Section 109 IPC, could only have been justified if the facts proved constituted all the ingredients of the offence of cheating. In recording the conviction, the High Court neglected to see whether all those ingredients were proved. On the face of it, of though the Oath Commissioner was induced to attest the affidavit by wrong identification made by the appellant, there was no likelihood of any damage or harm to him in body, mind, reputation or property, so that the Oath Commissioner was never rt cheated. Clearly, therefore, the High Court fell into an error in recording the conviction of the appellant for the offence under Section 419, read with Section 109 IPC and substituting that conviction in place of the conviction for offences for which he had been punished by the trial court.
41. Similar is the judgment inV.Y. Jose v. State of Gujarat, (2009) 3 SCC 78 as under:-
14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
(i) deception of a person either by making a false or misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to deliver any property, or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intentions at the time of making a promise or representation. Even in a case where allegations are made in ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 39 regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making the initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out.
.
42. The term dishonestly has been defined in Section 24 of the Indian Penal Code as anything done to cause wrongful gain to one person or wrongful loss to another person. In the present case, when the date of birth was altered from 22.7.1956 to of 22.7.1960, the State Government was led to believe that the accused was born on 22.7.1960 and this belief granted him an rt extended benefit of four years which it would not have granted had it known the correct date of birth. The accused also gained service benefits of four years by altering his date of birth, which he would not have gained had he disclosed his correct date of birth.
43. Section 23 of the Indian Penal Code defines the term wrongful gain as the gain by unlawful means of the property to which a person gaining is not legally entitled and wrongful loss as the loss by unlawful means or the property to which the person losing it is entitled. Since the accused would not have been entitled to the service benefit for four years had he disclosed his correct age and the State Government would not have lost the ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 40 service benefit of four years had it known the correct year of birth of the accused;therefore, there was a wrongful gain to the accused .
and wrongful loss to the State.
44. The accused did not dispute that his correct date of birth is 22.7.1956; therefore, when he produced the copy of the matriculation certificate showing his date of birth as 22.7.1960, he of made a representation which he believed to be incorrect. By making this misrepresentation he induced the State to grant rt service benefits for four years, which caused the loss to the State, hence all the ingredients of Section 415of IPC were duly satisfied and the learned Trial Court had rightly held that the ingredients of an offence defined under Section 415 of IPC were made out.
45. The accused knew his correct date of birth. He was aware of the fact that his date of birth was recorded as 22.7.1956 at the time of his admission to the school as per Ext. PW12/B. He knew that a certificate bearing No. 552 was issued by the Board, and he produced a certificate in which Roll No. was missing, date of birth was altered to 22.7.1960; therefore, he has a reason to believe that this matriculation certificate was not the correct copy of the original matriculation certificate because it had two ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 41 alterations. Still, he used this document to show his qualifications and date of birth; therefore, he used a forged document as a .
genuine document. This document was used to secure a pecuniary advantage by gaining the service benefits of four years; therefore, all the ingredients of the commission of an offence punishable under Section 471 of IPC were made out.
of
46. In all fairness to Ms Devyani Sharma, learned Senior Counsel for the accused, she has relied upon the judgments of rt Hon'ble Supreme Court in Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731; C.K. Jaffer Sharief v. State, (2013) 1 SCC 205 and State of Maharashtra v. Pollonji Darabshaw Daruwalla, 1987 Supp SCC 379 to submit that the presumption under Section 20 of the Prevention of Corruption Act does not apply to the present case.
Learned Trial Court never proceeded on any presumption under Section 20 of the Prevention of Corruption Act,hence this submission will not be helpful to the accused.
47. Reliance was also placed upon the judgments of H.R. Bashal vs. State of H.P. and Ors. (11.10.2001-HPHC) :
MANU/HP/0225/2001 and R.S. Somra vs. State of H.P. (22.07.1996- HPHC): MANU/HP/0176/1996 to explain the ingredients of the ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 42 conspiracy. Since the learned Trial Court had discharged the other accused; therefore, there was no question of any conspiracy;and .
these judgments will not be relevant to the decision of the present case.
48. The Learned Trial Court convicted the accused of the offences under Sections 415, 471 of IPC and Section 13 (1)(d) of the of Prevention of Corruption Act. Learned Trial Court erred in holding that the accused was guilty of an offence under Section rt 415 of IPC because that is a definition clause and does not provide any punishment; therefore, no punishment could have been imposed under Section 415 of IPC. However this is a typographical error because the accused was charged with the commission of offences Sections 420 of IPC; therefore, this error will not make any difference to the present case.
49. It was submitted that the benefit of the Probation of Offenders Act should have been granted to the accused. Reliance was placed upon the judgment of Punjab and Haryana High Court in Surinder Kumar vs. State of Punjab Criminal Revision No. 540 of 2013 was decided on 31.1.2020. This submission is not acceptable.
It was laid down by Hon'ble Supreme Court in Shyam Lal Verma v.
::: Downloaded on - 08/12/2023 20:34:09 :::CIS 43CBI, (2014) 15 SCC 340 that Section 7 as well as Section 13 of the Prevention of Corruption Actprovides a minimum sentence;
.
therefore, it was not permissible to grant the benefit of the Probation of Offenders Act. It was observed:
"7. It is not in dispute that the issue raised in this appeal has been considered by this Court in State v. Ratan Lal Arora [State v. Ratan Lal Arora, (2004) 4 SCC 590: 2004 SCC (Cri) of 1353] (SCC p. 596, para 12) wherein in similar circumstances, this Court held that since Section 7 as well as Section 13 of the Prevention of Corruption Act provide for a minimum sentence of six months and one year respectively in addition to the rt maximum sentences as well as imposition of fine, in such circumstances claim for granting relief under the Probation of Offenders Act is not permissible. In other words, in cases where a specific provision prescribed a minimum sentence, the provisions of the Probation of Offenders Act cannot be invoked. A similar view has been expressed in State v. A. Parthiban [State v. A. Parthiban, (2006) 11 SCC 473 : (2007) 1 SCC (Cri) 520].
50. Therefore, the submission that the benefit of the Probation of Offenders Act is granted to the accused is not acceptable.
51. Learned Trial Court had imposed the punishment ofone year and the payment of fine of ₹ 5,000/- for the commission of an offence punishable under Section 415 of IPC;
two years and a payment of fine of ₹ 10,000/- for the commission of an offence punishable under Section 471 of IPC and two years and a payment fine of ₹ 10,000/- for an offence punishable under ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 44 Section 13(1)(d) of the Prevention of Corruption Act. These sentences cannot be said to be excessive keeping in view the fact .
that a forged document was used as a genuine to secure the benefit of four years of service. The offence was committed after due deliberation and could not have been viewed lightly. Hence, no interference is required with the sentences imposed by the of learned Trial Court.
52. No other point was urged.
rt
53. In view of the above, the present appeal fails and the same is dismissed, so also pending miscellaneous applications, if any.
(Rakesh Kainthla) Judge 8th December,2023 (Karan Guleria) ::: Downloaded on - 08/12/2023 20:34:09 :::CIS