Calcutta High Court (Appellete Side)
Secretary vs Kalpana Ghosh on 13 September, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
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13/09/2013
CRR No. 730 of 2003
Secretary, Tenpur Nabasan Ananta Ram High School
vs.
Kalpana Ghosh
Mr. Subroto Bose
Mrs. Nabanita Pal
... For the petitioners
Mr. Sandipan Ganguly
Mr. Pradyut Saha
... For the O.P. No. 2
Mrs. Faria Hussain
... For the State
This revision arose out of judgment and order dated 17.1.03 passed by the
learned Sub-Divisional Judicial Magistrate, Uluberia in GR Case No. 118/88
corresponding to Bagnan P. S. case No. 11 dated 23.3.88 acquitting the Opposite
Party from offences punishable under Section 465/467/471/420 IPC.
In the background of this revision the fact in a nutshell is that
a petition of complaint under Section 156(3) of the Code of Criminal
Procedure was filed on 22.3.88 by the then Secretary, Tenpur
Nabasan Ananta Ram High School, Bagnan, Uluberia against the
accused/Opposite Party before the learned Chief Judicial
Magistrate, Howrah.
After investigation Police started Bagnan P.S. Case No. 11
dated 23.3.88.
The prosecution case is that the Opposite Party entered the
service of the said School as a Library Assistant by declaring herself
as a Higher Secondary passed candidate in her application as well
as in the declaration given by her on the date of interview in her own
handwriting and signature whereas she was actually a Higher
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Secondary Plucked candidate. The Opposite Party also filed forged
and false documents like mark sheet for getting the job and thereby
committed an offence of cheating and forgery.
Police after completion of investigation submitted the charge-
sheet under Section 465/467/471/420 IPC.
On hearing of both sides charges have been framed against
the accused persons under Sections 465/467/471/420 IPC by the
learned Sub-Divisional Judicial Magistrate, Uluberia.
The contents of the charges were read over and explained to
the accused persons who pleaded not guilty and claimed to be tried.
The prosecution case examined as many as 9 witnesses while
none was examined on behalf of the defence.
The accused was, however, examined under Section 313 of the
Code of Criminal Procedure. The defence case was the denial of
offence with a plea of innocence.
On trial the learned Court below convicted the present
appellant by the impugned judgment.
Now the point for consideration is if the impugned judgment
suffers from material irregularity and calls for any interference or
not.
Sections 465/467/471/420 IPC read as under:
S. 420. Cheating and dishonestly inducing delivery of property
- Whoever, cheats and thereby dishonestly induces the person deceived to
deliver any property to any person, or to make, alter or destroy the whole or
any part of a valuable security, or anything which is signed or sealed, and
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which is capable of being converted into a valuable security, shall be
punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.
S. 465 - Punishment for forgery - Whoever commits forgery shall be
punished with imprisonment of either description for a term which may extend to two years,
or with fine, or with both.
S. 467 - Forgery of valuable security, will, etc. - Whoever forges a document
which purports to be a valuable security or a will, or an authority to adopt a son, or which
purports to give authority to any person to make or transfer any valuable security, or to
receive the principal, interest or dividends thereon, or to receive or deliver any money,
movable property, or valuable security, or any document purporting to be an acquittance or
receipt acknowledging the payment of money, or an acquittance or receipt for the delivery
of any movable property or valuable security, shall be punished with imprisonment for life,
or with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
S. 471 - Using as genuine a forged document or electronic record -
Whoever fraudulently or dishonestly uses as genuine any document or electronic record
which he knows or has reason to believe to be a forged document or electronic record, shall
be punished in the same manner as if he had forged such document or electronic record.
The learned Counsel for the defacto-complainant submitted
that it is a case where cheating has soundly been proved. He
further contended that the accused before entering into her service
stated in her application that she has passed Higher Secondary
Examination as requisite qualification. He further submitted that
the factum of forgery could not be proved as handwriting expert
could not be examined. But the case shows that there are sufficient
materials of cheating. So, the judgment of acquittal of the learned
Court below is perverse.
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Further, he argued that her handwritten application is enough
to prove her guilt. She denies that she signed her application on
26.9.80whereas on the basis of such application she was given job and there was no other application except the above application vide Ext. 3. Therefore, it is enough to prove the cheating.
On the other hand, the learned Counsel for the accused submitted that the impugned judgment passed by the learned Court below is not at all perverse and the findings are alright. So, the judgment of acquittal need not be interfered with to convert it to one of conviction.
To appreciate the case from a better angle some relevant pieces of evidence are required to be considered here.
PW 1 is the defacto-complainant. He is the Secretary, Tenpur Nabasan Anantaram High School. It appears from his evidence that there was an advertisement for appointment in the post of Library Assistant in this School in the Newspaper and the accused applied for the said post. On the basis of the application made by her, she was appointed as Library Assistant for the said post. But subsequently, on enquiry they came to know that the accused was not a Higher Secondary Pass Candidate. The complainant gathered information from the Higher Secondary Board. Accordingly, the Governing Body of the School lodged a complaint marked Ext. 1.
PW 2 is a Member of the Managing Committee of that School. He stated that minimum qualification for the post of Library Assistant was Class VIII Pass in the advertisement published in the "Amritabajar Patrika" and "The Jugantar" dated 19.9.80 and 5 22.9.80. Her application is marked Ext. 3. From his evidence it transpires that there was an Interview Board comprising 4 members including the Headmaster of the School and the Assistant Inspector of Schools and others etc. The accused person allegedly filled up particular column in her own handwriting in respect of her biodata Ext. 4. This witness stated that the accused declared herself as a Higher Secondary passed candidate and produced original mark- sheets alongwith photocopies thereof in support of her statement. She was placed at serial No. 1 as she was a Higher Secondary passed candidate. PW 2 was the Secretary at the time when appointment was issued to the accused. The accused joined the service. When the accused was asked to produce original documents, she was taking unusual time in producing such original documents including mark-sheets etc. before them in support of her qualification. PW 2 became suspicious and then he wrote to the Secretary, West Bengal Higher Secondary Education Board to verify regarding her qualification and the Board accordingly informed that the accused failed in the Higher Secondary examination. Thereafter, PW 2 issued notice to the accused. On receipt of such notice the accused stated that she failed the Higher Secondary Examination.
PW 3 is the Headmaster of the said School. He attempted to corroborate the prosecution case.
PW 4 is a Group-D staff. He stated that all the applicants were asked in his presence to write their particulars in the proforma sheet prepared by him at the time of attendance recording. 6
PW 5 is the Assistant Labour Commissioner. He was a member of the Executive Committee and a member of the Interview Board. When asked, the accused disclosed that she was Higher Secondary Passed and showed her qualification certificate. He learnt that Pass Certificate is a forged one.
PW 6 and PW 7 are teachers of the said School. They called the accused to produce original certificates but she failed. Later from an intimation from Higher Secondary Board it was learnt that she did not pass Higher Secondary Examination.
PW 8, PW 10 and PW 11 are teachers of the said school who attempted to support the prosecution case.
PW 9 is the Police Officer who tried to collect handwriting of the accused but the accused refused to give so. He submitted the charge-sheet.
From the materials-on-record it transpires that that the advertisement for the vacancy for the appointment in the post of Library Assistant was published in the 'Amritabajar Patrika' and 'The Jugantar' dated 19.9.80 and 22.9.80 and minimum qualification required was class VIII Pass.
It further transpires that Kalpana Ghosh applied for the post of Library Assistant (Ext. 3) and on the basis of such application she was called for an interview on 7.12.80. The candidates were directed to fill up a proforma in their own handwriting before the members of the Interview Board. Kalpana Ghosh also filled up the particulars of the said proforma and column in her own 7 handwriting, Ext. 4, stating that her academic qualification is Higher Secondary Pass. But she denied that she showed her qualification as Higher Secondary Pass. Factually, the hand-writing expert it has not been established that she filled up the proforma, Ext. 4 in her own handwriting.
It was stated by the prosecution story that Kalpana Ghosh produced her original mark-sheets alongwith photocopies thereof and the copies were verified by the witness, PW 2 and duly attested by the Headmaster of the School who was also a member of the Executive Board.
Ext. 5-series and the original marksheets and other documents were returned to Kalpana Ghosh. So, it is expected that the school authority verified the factum that the accused has duly passed the Higher Secondary examination with reference to the documents he relied. Side by side these mark-sheets or original documents subsequently ought to have been compared with the documents calling from the Higher Secondary Board by the handwriting expert. Minimum qualification was Class-VIII Pass. So, why the accused will deliberately show a document of Higher Secondary Passed, running the risk that someday that document is likely to be verified. It is not the case of the complainant that the mark-sheets were fabricated or interpolated. Mark sheet can well demonstrate whether Kalpana passed the Higher Secondary Examination or not. In order to prove forgery, a report of hand- writing expert is necessary. It was alleged that the accused declined to give handwriting. But her signature given in acquittance roll or 8 other school documents are available. With reference to these writings Ext. 4 could have been verified. So, the evidence of PW 1, the Secretary of the said School, has to be taken with a grain of salt.
Ext. 5-a is the mark-sheet wherein it was shown that she failed in Higher Secondary Examination. But if the proposition is accepted that Ext. 5-a was duly attested by the Headmaster of the said School on 7.12.80, when the accused was called for an interview on 7.12.80 i.e. the same day. So, then and there it came to the mind of the Headmaster that the accused was not Higher Secondary Pass. Kalpana Ghosh denied that Ext. 3 is her original application and also denied that "Higher Secondary (Science) SC 74"
was written by her on Ext. 4. The accused claimed that she applied for rectification of her qualification that she was not Higher Secondary Pass. Exts. 3, 4 and 5-series were not verified by the handwriting expert.
The learned Counsel for the Petitioner contended that by false declaration that she passed the Higher Secondary Examination, the accused took up the interview and got selected and thereby cheated others. Therefore, the case of cheating stands well established in the instant case. He argued that the ingredients of Sections 465/467/471 IPC have not been established but Section 420 IPC stands established against the accused/appellant.
It will be helpful to see what 'cheating' is.
Section 415 IPC reads as under :
S. 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 9 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 minimum qualification required for the said post was Class-VIII Pass. So, it is clear that there is no dispute that the petitioner is atleast Class-VIII Pass. There is no case of prosecution that the accused influenced the Interview Board to accommodate her on the ground of higher qualification in preference to Class-VIII Pass candidates. Rather the Selection Board opted for the candidates believing that she is more qualified than other applicants. It is also not the case of the complainant that the accused replaced a forged "Higher Secondary Pass" mark-sheet by a "Higher Secondary fail" mark-sheet.
Therefore, there is no question of wrongful gain to her and wrongful loss to other. The authority concerned ought not to have been swayed by the statement or document showed by the incumbent concerned. They ought to have verified these well ahead. But they did not. It is not the case of the prosecution that her qualification will get extra mark for the said post. Dishonest intention of the accused is very much wanting. If at all the accused has any ill-motive or intention, it is expected that she would hesitate to bank upon a false statement disclosing that she is a Higher Secondary Pass candidate. She has already passed Class-VIII Examination, so why she would claim that she is a Higher Secondary Passed, when there is no mention that Higher Secondary Passed Candidates will be preferred. There is no explanation given 10 by the prosecution. Moreover, the incumbent was surely in the knowledge that her original mark-sheet or certificate are to be verified before the appointment. So, the ill-motive appears to have been wanting in this case.
In 313 Examination, she has already stated that Ext. 4 was not written by her.
The learned Counsel for the Petitioner argued that unless any application for the job is submitted by the accused on the basis of what she was called for an interview, there is no answer from the accused on this ground. But it is the duty of the prosecution to verify the same, they ought to have looked before they lept.
The learned Counsel for the Petitioner cited before me a number of decisions in the case of Sheetala Prasad & Ors. vs. Sri Kant & Anr. (2010) 2 SCC (Cri) 1002 wherein it was held that i) the revision preferred by the private company is maintainable in case where the learned Trial Court has wrongfully shut out evidence which the prosecution wished to produce; ii) where the admissible evidence is wrongly brushed aside as inadmissible evidence; iii) where the learned Trial Court has no jurisdiction to try the case and has still acquitted the accused; iv) where the material evidence has been overlooked either by the learned Trial Court or by the appellate court or the order is passed by considering irrelevant offence and v) where the acquittal is based on the compounding of the offence which is invalid under the law.
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The same decision has also been referred by the learned counsel for the accused/appellant.
In the case of Johar & Ors. vs. Mangal Prasad & Anr. (2008) 2 SCC (Cri) 89 it was held by the Hon'ble Apex Court that "the approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severely restricted, particularly when it arises from a judgment of acquittal.
In the instant case, the High Court not only entered into the merit of the matter but also analysed the depositions of all the witnesses examined on behalf of the prosecution. It, in particular, went to the extent of criticizing the testimony of autopsy surgeon. It relied upon the evidence of the so-called eye-witnesses to hold that although the appellants had inflicted injuries on the head of the deceased, the autopsy surgeon deliberately suppressed the same. The surgeon was for all intent and purport, found guilty of the offence under Sections 193 and 196 IPC.
Thus, the High Court sought to reappreciate the whole evidence. One possible view was sought to be substituted by another possible view. The High Court did not point out any error of law on the part of the trial judge. It was not opined that any relevant evidence has been left out of its consideration by the court below or irrelevant material has been taken into consideration. The trial court might be wrong as regards analyzing the prosecution 12 evidence but then it had not relied upon the evidence of the eye- witnesses only having regard to the opinion of medical expert. The trial judge considered the plea of alibi on the part of some of the accused and accepted the same. The High Court did not bestow any consideration in this behalf. It also failed to take into consideration that even bystanders have been implicated in the matter. Unfortunately, the High Court did not meet the reasonings of the trial judge which was its bounden duty.
Hence, in view of the fact that the judgment of the trial judge could not be termed to be a perverse one, it is unhesitatingly held that the High Court exceeded its jurisdiction while passing the impugned judgment. Further, it did not take into consideration the effect of the order dated 18.11.2003 passed by the High Court in the appeal preferred by one of the accused persons whereby his conviction under Section 323 IPC had been confirmed and that order had also attained finality. In this view, the impugned judgment cannot be sustained, which is set aside accordingly".
In a case of acquittal the revisional court should not upset the judgment of acquittal unless palpably it is manifest that the judgment is perverse or devoid of any consideration which should have been done on the very existence of the materials on record or drawing some inferences which are unwarranted and not relevant for coming to a different view. The accused should be presumed to be innocent. Further by the order of acquittal her case gets strengthened. If two views are possible, the one favouring the accused should be made applicable to the accused. 13
In the case of Bindeshwari Prasad Singh & Ors. vs. State of Bihar (now, Jharkhand) & Anr. (2002) SCC (Cri) 1448 it was held by the Hon'ble Apex Court that "the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. The judgment of the trial court cannot be said to be perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial court took the opposite view. In absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.
When in view of sub-section 3 of Section 401 of the Code of Criminal Procedure the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly 14 by the method of ordering a retrial. The High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of Supreme Court have laid down parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party".
In the case of Jagannath Choudhury & Ors. vs. Ramayan Singh & Anr. (2002) SCC (Cri) 1181 it was held by the Hon'ble Apex Court that "the object of the revisional jurisdiction as envisaged under Section 401 is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals. The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been 15 an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction. While it is true and now well settled that exercise of power under Section 401 cannot but be ascribed to be discretionary
- this discretion, however, as is popularly informed has to be a judicious exercise of discretion and not an arbitrary one. Judicial discretion cannot but be a discretion which stands, "informed by tradition, methodized by analogy and disciplined by system" - resultantly only in the event of a glaring defect in the procedural aspect or there being a manifest error on a point of law and thus a flagrant miscarriage of justice, exercise of revisional jurisdiction under this statute ought not to be called for. It is not to be lightly exercised but only in exceptional situations where the justice delivery system requires interference for correction of a manifest illegality or prevention of a gross miscarriage of justice. It is not an appellate forum wherein scrutiny of evidence is possible; neither is the revisional jurisdiction open for being exercised simply by reason of the factum of another view being otherwise possible. It is 16 restrictive in its application though in the event of there being a failure of justice there can be said to be no limitation as regards the applicability of the revisional power".
The judgment of the learned Court below appears not to be perverse in nature. The view taken by the learned Court below may be probable.
The learned Court below appears to have taken care of the material points.
I find no reason to interfere with the findings of the learned Court below.
Accordingly, the revision stands dismissed.
Let a copy of this judgment alongwith the LCR be sent down to the learned Court below for necessary compliance and action.
Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.
(Toufique Uddin, J.)