Allahabad High Court
Ajay Narayan Ram (At:01 P.M.) vs State Of U.P. on 13 November, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved AFR Case :- CRIMINAL REVISION No. - 198 of 2010 Revisionist :- Ajay Narayan Ram Opposite Party :- State Of U.P. Counsel for Revisionist :- Rajendra Singh Kushwaha Counsel for Opposite Party :- Govt. Advocate Hon'ble Arvind Kumar Tripathi (II),J.
1. Heard Shri Rajendra Singh Kushwaha, learned counsel for the revisionist and Shri Devendra Singh, learned AGA for the State respondents.
2. Instant criminal revision has been filed by Ajay Narayan Ram challenging the judgment and order dated 26.4.2010 passed by the learned Additional Sessions Judge, Court No.6, Lakhimpur Kheri in Criminal Appeal No.38 of 2007 by which the learned court below has upheld the judgment and order dated 12.12.2007 passed by the learned Additional Chief Judicial Magistrate, Lakhimpur Kheri in Case No.3724 of 2007 arising out of case crime no.1021 of 2003, under Sections 468, 420, 471 IPC, Police Statin Kotwali, District Lakhimpur Kheri.
3. As per the prosecution version, the revisionist was working as a daily wager in the forest department, and he moved an application for regularization. Along with his application he submitted attested photostat copy of school leaving certificate issued by Janta Janardan Inter College, Gandhi Nagar, District Ghazipur in which his date of birth was mentioned to be 15.3.1964. After regularization, while service book was prepared, he submitted a school leaving certificate issued by Sri Ganesh Jokhan Sarvodaya Uchchatar Madhayamik Vidyalaya, Gambhirpur, Ghazipur in which his date of birth was shown as 10.3.1974. Seeing these anomalies, the concerned Prabhagiya Vanadhikari suspended him, and departmental inquiry was initiated against him. In this departmental inquiry, he was found guilty, and was removed from service. After that, the Prabhagiya Vanadhikari Dakshini Khiri asked the Superintendent of Police for lodging of FIR, on which a FIR was registered, and after investigation, charge sheet under Sections 466, 468, 471, 419, 420 IPC was framed. The accused pleaded not guilty, and claimed to be tried.
4. The prosecution, in order to prove the case, examined Udhoshyam Dixit as PW-1, A.B. Singh as PW-2, Ashok Kumar as PW-3, Mohd. Farid Khan, Head Constable as PW-4 and V.K. Yadav, S.I. as PW-5, and several documentary evidences were also submitted. The accused denied filing of two different school leaving certificate, and stated in his statement under Section 313 Cr.P.C. that, in order to appoint another person, a conspiracy was hatched by the office. No documentary, or oral evidence was submitted from the side of the revisionist/accused.
5. Learned trial court, after going through the evidence on record, convicted the accused under Sections 468, 420, 471 IPC, and sentenced him to undergo four years imprisonment and Rs.100/- fine each under Sections 468, 420 IPC, and also sentenced him to undergo two years imprisonment under Section 471 IPC and Rs.500/- fine. On default, he was directed to undergo one month additional imprisonment under Sections 468, 420 IPC, and fifteen days additional imprisonment under Section 471 IPC. All the sentences to run concurrently.
6. Feeling aggrieved, Criminal Appeal No.38 of 2007 was filed. Learned appellate court, after going through the evidence, has maintained conviction under Section 471 and acquitted the appellant under Sections 468, 420 IPC, and directed him to undergo one and half year imprisonment under Section 471 IPC and also to pay fine of Rs.500/-. In default, he was directed to undergo fifteen days additional imprisonment.
7. It was argued from the side of the revisionist that no offence under Section 471 IPC is made out because the ingredient of Section 471 IPC is that there should be forgery, as defined under Section 463 IPC, and forgery in terms depends upon creation of false documents, as defined under Section 464 IPC. As there is no false document, then offence under Section 468, 471 IPC is not made out. Learned counsel for the revisionist relied upon the decision in the case of Mohammed Ibrahim and others v. State of Bihar and another, (2009) 8 SCC 761.
8. Learned AGA argued that as the revisional court will not substitute the findings of facts by given by the trial court and affirmed by the appellate court, hence the order of the appellate court is perfectly justified.
9. Learned counsel for the revisionist argued that if his arguments do not find favour with the court, then the revisionist, who had already been removed from service, be sentenced to the period already undergone, which is about eleven and half months.
10. Section 463 IPC defines the word 'forgery' which is reproduced below: -
"463 Forgery.-- Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
11. Section 464 IPC is also reproduced below: -
"464. Making a false document.-- A person is said to make a false document- First.- Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly.- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration."
12. An analysis of section 464 of Penal Code shows that it divides false documents into three categories: -
(1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
(2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
(3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
13. In the instant case, two documents, regarding date of birth of the revisionist, were filed by himself. First is certified photo copy of school leaving certificate of Janta Janardan Inter College, Gandhi Nagar, District Ghazipur in which his date of birth was shown as 15.3.1964. Second document was attested photocopy of school leaving certificate of Sri Ganesh Jokhan Sarvodaya Uchchatar Madhayamik Vidyalaya, Gambhirpur, Ghazipur in which his date of birth was shown as 10.3.1974.
14. In order to prove the charge under Section 471 IPC the prosecution will have to prove that both the documents were prepared or made by the revisionist himself.
15. The Apex Court in the case of Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 relying upon its earlier decision in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 has held that normally, revisional jurisdiction under Section 397 Cr.P.C. should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding.
16. In the case of Amit Kapoor (supra) the Apex Court has held that when the findings recorded by the lower court are based on no evidence, material evidence has been ignored or judicial discretion has been exercised arbitrarily, or perversely, the revisional court can interfere in exercise of it's powers under Section 397 Cr.P.C.
17. PW-1 has informed the Court that the revisionist - Ajay Narayan Ram has, while moving application for regularization, mentioned his date of birth to be 15.3.1964, and along with that application submitted the student register, and leave application of Janta Janardan Inter College, Gandhi Nagar, District Ghazipur. He has further submitted that at the time of preparation of service book, he has mentioned his date of birth to be 10.3.1974, and along with that he submitted school leaving certificate of another college Sri Ganesh Jokhan Sarvodaya Uchchatar Madhayamik Vidyalaya, Gambhirpur, Ghazipur. PW-2 and 3 have also stated the same thing.
18. From the evidence on record, it is evident that there is no evidence on record that both the documents were prepared by the revisionist himself, or by some one else by the authority of revisionist. It is also evident that there is no evidence that the revisionist has dishonestly, or otherwise altered the document in any material part, without lawful authority. It is also evident that there is no evidence on record that the revisionist has dishonestly or fraudulently caused any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind, or (b) intoxication, or (c) deception practiced upon him, know the contents of the document, or the nature of the alteration.
19. The documents, which have been filed are photostat copies. Unless and until original document is proved to be forged, photostat copies cannot be said to be forged.
20. As discussed above, there is no evidence to suggest that both the alleged forged documents were prepared or made by the revisionist. From the above observations, it is clear that the judgments of both the courts below are not based on evidence and perverse and needs interference.
21. In the result, the criminal revision is liable to be allowed, and is hereby allowed. The order passed by the both the courts below regarding conviction of the revisionist under Section 471 IPC is set aside. The revisionist is acquitted of the charge framed under Section 471 IPC. He need not surrender.
Order Date :- November 13, 2013 Anupam (Justice Arvind Kumar Tripathi - II)