Karnataka High Court
Sri Jayaraghavalu vs State By Wilson Garden Police on 13 October, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:37546
CRL.RP No. 333 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 333 OF 2016
BETWEEN:
SRI JAYARAGHAVALU,
S/O LATE SRI MURALIDHAR,
AGED ABOUT 32 YEARS,
R/O CHUNCHAGHATTA,
KONANAKUNTE CROSS,
KANAKAPURA MAIN ROAD,
BANGALORE - 560 043.
...PETITIONER
(BY SRI MOHD USMAN SHAIKH, ADVOCATE)
AND:
STATE BY WILSON GARDEN POLICE,
BANGALORE CITY - 560 028,
REPRESENTED BY PUBLIC PROSECUTOR
BENGALURU.
Digitally ...RESPONDENT
signed by (BY SRI JAIRAM SIDDI, HCGP)
RENUKAMBA
KG THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
Location: TO SET ASIDE THE IMPUGNED JUDGMENT PASSED BY VI ACMM
High Court of BANGALORE IN C.C.NO.14128/2001, DATED 22.01.2014
Karnataka CONVICTING THE PETR. FOR THE OFFENCE U/S 465,471,420
OF IPC AT ANNEXURE-B AND MAY BE PLEASED TO RECORD
ACQUITTAL OF THE PETR. IN C.C.NO.14128/2001 ON THE
BOARD OF VI ACMM, BANGALORE AND REVERSE THE
IMPUGNED JUDGMENT 22.12.2015 PASSED BY HON'BLE LX
ADDL. CITY CIVIL AND S.J., BANGALORE IN
CRL.A.NO.117/2014 PRODUCED AT ANNEXURE-B.
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CRL.RP No. 333 of 2016
THIS PETITION, COMING ON FOR DICTATING ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision is filled by the accused/revision petitioner under Sections 397 and 401 of Cr.P.C. challenging the judgment of conviction and order of sentence passed by VI Additional Chief Metropolitan Magistrate, Bangalore, in CC.No.14128/2001 dated 22.01.2014 and confirmed by LX Additional City Civil & Sessions Judge, Bangalore, in Crl.A.No.117/2014.
2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are as under:
The PSI of Wilson Garden Police Station has submitted the charge sheet against two accused for the offences punishable under Sections 465, 471 and 420 of IPC. It is alleged by the prosecution that accused No.1 having failed in SSLC examination, has applied for the post -3- NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 of conductor on compensatory ground on account of death of his father during his service. He produced a SSLC marks card before the Authority to secure the employment and accordingly, he was issued an appointment order based on the SSLC marks card. Later on, the SSLC marks card was sent to the Board for verification and then it is noticed that the said SSLC marks card is a forged one as the roll number under which the SSLC marks card issued was pertaining to one Suma.B, who has failed in the SSLC examination and it is not pertaining to the accused. The Secretary of the SSLC Board has submitted a report in this regard to the BMTC and on the basis of the report, a complaint came to be lodged after discharging accused No.1. On the basis of the complaint, the crime was registered by the Investigating Officer of Wilson Garden Police Station and he submitted the charge sheet against accused Nos.1 and 2 for the offences punishable under Sections 465, 471 and 420 of IPC.-4-
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4. After submission of the charge sheet, as there are sufficient grounds to proceed against the accused, the learned Magistrate has taken cognizance of the offence. Meanwhile, accused No.1 was arrested and was enlarged on bail. In pursuance of the Court summons, accused No.1 has appeared through his counsel and he was provided with the prosecution papers as contemplated under Section 207 of IPC. Accused No.2 was all along absconding and as such, considering the consistent absence of accused No.2, the case against him was split up vide order dated 16.01.2008 and case against accused No.1 i.e., revision petitioner proceeded with.
5. The charge was framed against the accused/revision petitioner herein for the offences punishable under Sections 465, 471 & 420 of IPC and same was readover and explained to him. Accused has pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the prosecution has examined in all five witnesses and also placed reliance on eleven -5- NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 documents marked at Ex.P1 to Ex.P11. After conclusion of the evidence of the prosecution, the statement of accused under Section 313 Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial.
6. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused/revision petitioner for the offences punishable under Sections 465, 471 & 420 of IPC and sentenced him to undergo imprisonment for a period of one year with a fine of Rs.2,000/- each for the offences punishable under Sections 465, 471 & 420 of IPC with a default sentence of 30 days.
7. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached LX Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.117/2014.
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8. The learned Sessions Judge after re- appreciating the oral and documentary evidence has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate.
9. Against these concurrent findings, the revision petitioner/accused is before this Court by way of this revision.
10. Heard the arguments advanced by the learned counsel for the revision petitioner/accused and learned HCGP for respondent/State. Perused the records.
11. The learned counsel for the revision petitioner would contend that the offences alleged are not attracted as against the accused as he has no knowledge of forgery. He would also submit that the accused has approached accused No.2, who was head master of the School and he has obtained his form and furnished this Ex.P2-SSLC marks card and he was unaware of the -7- NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 fact that it was a forged document and he has innocently placed it before the appointing authority of BMTC and hence, he would contend that both the Courts below have committed an error in convicting him in this regard and hence, he would seek for allowing this revision by setting aside the impugned judgments. He has also placed reliance on citations in support of his case which will be dealt during the reasonings.
12. Per contra, the learned HCGP would support the judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court. He would submit that accused having knowledge used the forged document and he is part of the conspiracy and hence, he would seek for dismissal of the revision.
13. Having heard the arguments and after appreciating the oral and documentary evidence, the following point would arise for my consideration:
"Whether the Judgment of conviction and order of sentence passed by both the Courts -8- NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 below are perverse, arbitrary and erroneous so as to call for any interference by this Court?"
14. It is an undisputed fact that the father of the revision petitioner/accused No.1 by name Muralidhar was an employee of the BMTC. It is also an undisputed fact that he died during service and the mother of the accused has sought for employment of her son on the ground of compassionate. The mother of the accused has submitted an application as per Ex.P6, requesting that her son was studying in SSLC and he may be provided an employment on compassionate ground. It is also an undisputed fact that thereafter, the accused has produced SSLC marks card as per Ex.P2 and also executed an affidavit as per Ex.P7 and got an employment. The order of employment is in the form of training for a period of two years, which is at Ex.P4. All these facts are undisputed.
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15. PW1 is a Deputy Chief Labor Officer of BMTC and he deposed as per the case of the prosecution and he has also identified his signature on Ex.P8, which is the mahazar regarding seizure of SSLC marks card produced at the time of getting the employment. During his cross- examination, the employment of accused under compassionate ground is unchallenged. Cross-examination was in respect of the fact that during the working tenure of the accused, he has not caused any monetary loss to the BMTC and that has been admitted. A suggestion was made to PW1 that there was a hidden contract between the officers of the BMTC and accused No.2 regarding furnishing the trained conductors and the said suggestion came to be denied.
16. PW2-K.C.Thimmappa is a junior assistant working in BMTC and he deposed that the accused applied for compassionate employment along with SSLC marks card, transfer certificate etc., In his cross-examination, it is elicited that he has no personal knowledge regarding
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 genuineness of these documents. PW3-T.R.Srinivasalu, was a retired Assistant Security Officer of BMTC and he desposed that he was directed to verify the copy of SSLC marks card produced by the accused with the original by visiting the house of the accused and he deposed that he went to the house of the accused and there he has compared with original and found that it was tallying with original.
17. PW4-Rajanna was working as Secretary in SSLC Board and he deposed regarding he receiving a requisition from BMTC for verification of the original records and when he verified the original records available in the Board, it is found that the SSLC marks card sent as per Ex.P2 bearing registrar No.242187 in the year 1998 was in fact in the name of one Suma .B daughter of Basavarajaiah and the said Suma has failed and she has obtained totally 99 marks together in all the subjects. He has specifically deposed that Ex.P2 was not a genuine document issued from the board and he further asserts that the original
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 statement of marks in this regard are produced by him at Ex.P9. Ex.P9 which is the original Register Book of the SSLC Board. Ex.P10 and Ex.P11 are copies of the original Register Book and the relevant entry pertaining to Suma .B having register No.242187 is marked at Ex.P10(a). He has also deposed that he sent these documents along with his covering letter marked at Ex.P3. A simple suggestion was made in his cross-examination that Ex.P9 to Ex.P11 are nowhere concerned to this case but he denied the said suggestion.
18. PW5 is the Assistant Administrative Officer and she has also deposed according to the prosecution. The entire evidence on record clearly disclose that the accused has applied for appointment on compassionate ground. He has produced Ex.P2. The other admitted fact is that Ex.P2 is a forged document and it does not pertains to accused and the marks are also fabricated. Hence, there is no serious dispute of the fact that under a false document Ex.P2, the employment was secured.
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19. The main contention of the learned counsel appearing for accused/ revision petitioner is that the accused was not having any knowledge of Ex.P2 being a forged document and there are no allegations in the entire case of the prosecution that he has forged this document. However, the prosecution has not only prosecuted for forgery but it has also prosecuted the accused for using a forged document as a genuine document and cheating the BMTC. The learned counsel would contend that accused has approached accused No.2 for appearing SSLC examination and he was provided with Ex.P2, but this statement was not found in the entire cross-examination of any of the witnesses including under Section 313 Cr.P.C. statement of the accused. Even otherwise he submits that accused did attended SSLC examination. In that event, it should be within the knowledge of the accused as to in which centre he has attended SSLC examination, his registered roll number and he should be in custody of the hall ticket issued on behalf of the Board through the School in which he has
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 studied or he attended the SSLC examination. None of these aspects were explained by the accused as to in which school he got admitted, what was his SSLC registered roll number and what was his Centre for SSLC Board Examination and what is ultimate result.
20. Lastly the learned counsel for the revision petitioner would contend that non-examination of Investigating Officer is fatal to the case of the prosecution. But, how accused is prejudiced by non- examination of the investigating officer is not at all explained. The entire case is based on documentary evidence and submission of Ex.P2 is unchallenged. Under such circumstances, non examination of investigating officer makes no difference at all.
21. The learned counsel for the revision petitioner has placed a reliance on an unreported decision of the apex Court in Crl.Revn.Nos.430 and 500 of 1987 [SANTOSH KUMAR PADHY AND ORS. Vs. THE STATE] dated 11.07.1991. In the said case, the accused merely
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 declared the case number and date in appropriate column for appearance and on that basis, it is observed that it cannot be held that the document was forged regarding petitioner forging the signature. The facts & circumstances of the said case being entirely different cannot be made applicable to the case in hand.
22. He has further placed reliance on a decision reported in AIR 1979 SC 1506 [ABDUL KARIM MADAN SAHAB vs. STATE OF MYSORE]. The said case was pertaining to a cheque book and a cheque and signature on the said cheque was found to be forged which was presented by the accused. But the Apex Court has held that unless there is an evidence regarding cheque book being entrusted or stolen or given to the accused by complainant himself, these ingredients cannot be established. But the said facts are entirely different and cannot be made applicable to the case in hand. In the instant case, admittedly Ex.P2 SSLC marks card is a forged document. Undisputedly, the accused has produced
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 the same before BMTC for seeking his employment. Though he asserts that he attended SSLC examination, he never disclosed his roll number or marks obtained by him. When accused has produced Ex.P2, he knew that it was not pertaining to him and under such circumstances, the inference is required to be drawn that accused having knowledge that Ex.P2 being a forged document used it as a genuine document as he has produced the said document for seeking his employment. Hence, the facts and circumstances in the above cited decision would not assist the defence in any way.
23. The learned counsel for the revision petitioner further placed reliance on a decision of the Apex Court in Crl.A.No.56/1973 [CHATT RAM vs. STATE OF HARYANA], dated 08.08.1979. But the said case was pertaining to suspicion and it is observed that prosecution failed to prove the guilt of accused beyond all reasonable doubt. It is further observed in the said citation that suspicion is no substitute of proof and the suspicion
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 however strong cannot be basis for conviction. But facts and circumstances are entirely different and hence, the said principles cannot be made applicable to the case in hand.
24. He has further placed reliance on an unreported decision of the Apex Court in Crl.A.Nos.359-360/2010 [SHEILA SEBASTIAN vs. R.JAWAHARAJ AND ORS.] dated 11/05/2018. In the said case, the accused was said to have created power of attorney in his name as if he was the agent of the mother and attempted to get transfer the property. But in the said case serious comments have been passed on Investigating Agency regarding shabby investigation which has resulted in acquittal of accused. Since the appeal was against the acquittal, the Apex Court has not exercised the discretion and the benefit extended due to shabby investigation was upheld. But in the instant case, no such facts are forthcoming regarding lapses in the investigation. Hence, the said principles are not at all applicable to the case in hand.
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25. Further, the learned counsel has invited the attention to para number 16 regarding forgery of the documents, but in the instant case, it is not a simple case of forgery, but seeking compassionate appointment on the ground of forged document. The document which is forged by a person can be held liable for the offence punishable under section 465 which is not under serious dispute. The learned counsel for the revision petitioner has further placed reliance on a decision of the Apex Court SUDHDEO JHA UTPAL vs. STATE OF BIHAR, dated 04.12.1956 said to have been reported in Manupatra, but the said citation does not does not bear the case number or criminal appeal number except the date of disposal. Hence, the said decision cannot be looked into. Even otherwise in the instant case accused himself has produced Ex.P2 and there is no assertion in entire defence that he had no knowledge that Ex.P2 was forged. He having appeared for SSLC examination must be having knowledge as to how
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 much marks he has obtained and hence, the said principle would not come to the aid of the accused in any way.
26. He has further, placed reliance on decision of Apex Court in Crl.A.No.32/1973 [BHIKALAL RAMJIBHAI ZAVSRI vs. STATE OF MAHARASHTRA] dated 27.04.1979 but in the said case it is observed that accused No.2 might have induced complainant to deliver the cloth, but did not inform accused No.1 regarding the state of affairs. The facts being entirely different cannot be made applicable to the case in hand.
27. The offence under Section 420 is pertaining to cheating and cheating is defined under Section 415 of IPC, which reads as under:
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.
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(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 he has not performed, and thereby dishonestly induces Z to pay money. A cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.
Section 420 of IPC is the offence pertaining to cheating and dishonesty inducing in delivery of property. Though the delivery of property is not involved in the instant case, but Section 420 makes it clear that by cheating when a person dishonestly induces the other person to deliver any property to any person or otherwise which is capable of being converting into a valuable security is punishable with imprisonment. In the instant case, the accused used Ex.P2 which is a forged document to get an employment and it falls under the category of valuable security and hence, the offence under Section 420 is attracted.
28. The learned counsel has further placed reliance on the decision of the Hon'ble Apex Court in Criminal Appeal Nos.129 and 130-132 of 2003 (Arising out of
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 S.L.P.(Crl.) Nos.914 and 1710-1712 of 2002) [AJAY MITRA vs. STATE OF M.P. AND ORS.] and argued that the accused must have a guilty intention as 'mens rea' so as to convict him for the offence punishable under Section
420. In the instant case, admittedly the accused produced Ex.P2 having knowledge that it is a forged document only in order to get an employment. Hence, his 'mens rea' is required is to be inferred and the said principles cannot be made applicable to the facts and circumstances of the case in hand.
29. He has further placed reliance on a decision reported in 2012 (1) Crimes 9 [VIJAY KUMAR PALLIWAL vs. STATE OF M.P.] and argued that mere production of documents shall not be held as established that accused person acted in criminal intent. At the outside, the said case was pertaining to the offence under the provisions of Section 13(1)(d) & 13(2) of the Prevention of Corruption Act, 1988 along with the other offences of IPC. The facts and circumstances are entirely
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 different and in the said case, though the criminal intention was not established but in the instant case the accused under the forged documents seeking employment and his criminal intention is required to be inferred. Hence, the said case cannot be made applicable to the facts and circumstances of the case in hand.
30. The learned counsel for the revision petitioner further placed reliance on a decision reported in 1984 AIR 1622 [SHARAD BIRDHI CHAND SARDA vs. STATE OF MAHARASHTRA] and Un reported in AIR 2023 SSC 3113 and unreported decision of the Apex Court in Criminal Appeal No.1471 of 2023 (Arising out of S.L.P. (Crl.) No.11256 of 2018 [RAJ KUMAR vs. STATE (NCT OF DELHI) and argued that the said case in respect of incriminating circumstances which are not put to accused cannot be made used to convict the accused as same is required to be excluded completely, but in the instant case, no such evidence is forthcoming that the material incriminating evidence is not put to the accused.
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 Further, no evidence is placed as to how accused is prejudiced. Hence, the facts and circumstances of the above reported cases being entirely different cannot be made applicable to the facts and circumstances of the case in hand.
31. The prosecution has alleged that accused has committed an offence of forgery under Section 465 of IPC. However, there is absolute no piece of evidence to prove that accused was part of commission of the forgery. In the absence of such material evidence, the conviction for the offence under Section 465 may not be sustainable. However, the accused was also convicted for the offences under Sections 471 and 420 of IPC. 471 of IPC deals with using a forged document as a genuine document and in the instant case, the accused produced Ex.P2, which is a forged document as a genuine document claiming that he cleared SSLC examination and hence, the ingredients of Section 471 are directly applicable to the facts and circumstances of the case in hand. Even it is not
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 the case of the accused that he had no knowledge of forgery and no such defence was raised nor any explanation was offered in 313 Cr.P.C. statement. Even as observed above Section 420 of IPC is directly applicable and hence, the judgment of conviction and order passed by both the Courts below for the offences punishable under Sections 471 & 420 cannot be said to be perverse or erroneous so as to call for any interference. However, the evidence falls short for the offence under Section 465 regarding accused actually participating in commission of the offence of forgery. Under these circumstances, the point under consideration is partly answered in the affirmative so far as it relates to the offence punishable under Section 465 of IPC alone. Accordingly, I proceed to pass the following ORDER
(i) The revision petition is allowed in part.
(ii) The judgment of conviction and order of sentence passed by VI Additional Chief Metropolitan Magistrate, Bangalore, in
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NC: 2023:KHC:37546 CRL.RP No. 333 of 2016 CC.No.14128/2001 dated 22.01.2014 and confirmed by LX Additional City Civil & Sessions Judge, Bangalore, in Crl.A.No.117/2014 so far as it is concerned for the offence under section 465 of IPC is set aside and for the said offence the accused/revision petitioner stands acquitted.
(iii) However, the judgment of conviction and order of sentence passed by both the Courts below for the offences punishable under Sections 471 and 420 of IPC stands confirmed.
(iv) Send back the TCRs. to the trial Court along with a copy of the judgment for securing the presence of the accused for serving the sentence.
Sd/-
JUDGE DS List No.: 1 Sl No.: 4