Karnataka High Court
K Venkatesh vs State Of Karnataka on 21 December, 2018
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL REVISION PETITION NO. 493 OF 2011
BETWEEN
1. K. Venkatesh,
S/o Kempegowda,
Aged about 51 years,
R/at No. 643,
12th Main Road,
M.G. Layout,
Vijayanagara,
Bangalore.
2. K.L. Radha Krishna,
S/o Lakkappa,
Aged about 43 years,
Cashier, S.V. Bar,
Bashyam Circle,
R/at No. 5-5,
59th Cross, 5th Block,
Rajajinagar, Bangalore.
3. H.R. Vijayaprasad @ Vijayakumar,
S/o H.V. Rudraiah,
Aged about 53 years,
Owner, Manjunatha Printing Press,
R/at No. 647, 12th Cross,
M.C. Layout, Vijayanagar,
Bangalore. ... Petitioners
(By Sri. A.H. Bhagavan, Advocate and
Sri. A.N. Radhakrishna, Advocate)
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AND
State of Karnataka
By Tiptur Rural Police.
Represented by the
State Public Prosecutor,
High Court Building,
Bangalore. ... Respondent
(By Sri. S. Chandrashekaraiah, HCGP)
This Crl.R.P. is filed under Section 397 R/w 401 of
Cr.P.C praying set aside the order dated 27.07.2010
passed by the Additional Civil Judge (Jr.Dn.) and JMFC,
Tiptur in C.C. No. 1683/2003 and order dated
22.03.2011 passed by the Presiding Officer, Fast Track
Court, Tiptur in Crl.A. No. 90/2010.
This Crl.R.P. coming on for final hearing, this day,
the court made the following:
ORDER
This Criminal Revision Petition has been preferred by the petitioners / accused against the judgment and order dated 22.03.2011 passed by the Presiding Officer, Fast Track Court, Tiptur in Crl.A.No.90/2010 partly allowing the appeal filed against the judgment and order of conviction dated 27.07.2010 passed by the Addl. Civil Judge (Jr.Dn) and JMFC, Tiptur in C.C.No.1683/2003. :3:
2. The trial Court had convicted the accused persons under Sections 467, 468 and 471 read with Section 34 of IPC and sentencing them to undergo SI for a period of two years and to pay fine of Rs.5,000/- with default clause, for the offence punishable under Section 467 r/w 34 IPC; for the offence under Section 468 r/w 34 IPC to undergo SI for a period of one year and to pay fine of Rs.2,000/- with default clause; for the offence under Section 471 r/w 34 IPC to undergo SI for a period of two years and to pay fine of Rs.3,000/- with default clause.
3. The first Appellate Court in Crl.A.No.90/2010 while allowing the appeal in part, modified the judgment and order of sentence passed by the Trial Court in C.C.No.1683/2003 and set aside the order of conviction and sentence against accused No.2 for the offence under Section 471 of IPC and confirmed the other parts of judgment of conviction and order of sentence relating to the offences. Hence, this revision petition. :4:
4. Heard learned counsel for the petitioners and learned HCGP for the State.
5. The factual matrix of the petition is as under:
The complainant namely L.Avinash, S/o K.N.Lakshman Gowda has filed a private complaint against accused No.1 to 3 stating that accused No.1 - K.Venkatesh has filed a suit in O.S.No.135/2001 by alleging that the father of the said complainant - K.N.Lakshmana Gowda has borrowed a sum of Rs.1,00,000/- on 15.05.1999 by executing an on demand promissory note. It was further submitted that K.N.Lakshmana Gowda had not borrowed the said sum from accused No.1 and no document was executed in that regard. After obtaining the said documents and on examination of the promissory note, the complainant found that the said document was forged at the instance of accused No.1 and by the instigation of accused No.2 and 3 who were the attesting witness to the said document and the said K.N.Lakshman Gowda had not at all attested his signature. On these grounds, :5: the complainant has alleged that these accused Nos.1 to 3 are responsible for forging the said promissory note and consideration receipt which is a valuable security to obtain wrongful gain by cheating and to create loss to the complainant. With these allegations the complaint was filed before the Court under Sections 467 and 468 read with section 34 of IPC. The case was registered in PCR No.40/2002 and the court below had referred the said case to Deputy Superintendent of Police, Tiptur for investigation under Section 156(3) of Cr.P.C. and to submit the report. Accordingly, the case was registered in Cr.No.76/2002 under Sections 467, 468 and 471 read with Section 34 of IPC in Tiptur Rural police and FIR was submitted to the court. Subsequently, the IO who has investigated the case by securing the hand writing expert report from the Forensic Science Laboratory, laid the charge sheet against the accused for the offences punishable under Sections 467, 468 and 471 read with Section 34 of IPC.
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6. Subsequent to laying of the charge sheet against the accused, the charge was framed for which accused did not plead guilty and claimed to be tried. During the trial the prosecution examined 9 witnesses as PW.1 to PW.9 and got marked documents as per Ex.P1 to P45. No material objects were marked. The trial Court after hearing the arguments advanced on both sides and appreciating the oral and documentary evidence on record, convicted the accused for the aforesaid offences.
7. This judgment of the trial Court was challenged by the accused in Crl.A.No.90/2010, wherein the first Appellate Court while modifying the said judgment, by setting aside the conviction and sentence against accused No.2 for the offence under Section 471 of IPC and confirming other parts of the judgment of conviction and order of sentence relating to the offences. The same has been reflected in the operative portion of the order passed in the aforesaid appeal. It is this judgment which has been challenged :7: in this criminal revision petition by urging various grounds.
8. Learned counsel for the petitioners has taken me through the evidence of the prosecution witnesses. He contends that the courts below have failed to notice that admittedly it is a referred case. The order of the trial Court in so far as referring the complaint to the Deputy Superintendent of Police, Tiptur and the subsequent proceedings is bad in law.
9. The courts below have not appreciated the material evidence on record in its right perspective manner. In the cross-examination of the PW.9 - IO he has admitted that after verification of hand writing expert, when compared and observed that accusation against accused No.1 - Venkatesh has not been proved. Further the courts below have erred in convicting the accused placing reliance on the highly interested and partisan evidence of PW.1 and PW.3. PW.1 - being the son of deceased Lakshman Gowda has stated that during the said period there was no financial :8: transaction between his father and accused no.1 but at another stretch he has accepted that there was money transaction between them. He has also admitted in the cross-examination that his father and accused No.1 were jointly running bar and restaurant in Bangalore.
10. Further it is contended that the courts below have misread the evidence of PW.1. According to PW.1 when he filed a private complaint the documents that he had produced before the IO were not with him, but subsequently, after filing the private complaint he had accumulated those documents.
11. It is further contended that Ex.P2 -
Promissory note according to PW.1 it is a forged document. PW.9 the IO collected certain papers alleged to have contained the signature of late K.N.Lakshmana Gowda, but however all those documents were not collected from the concerned department or from its originals. The courts below have failed to see and appreciate that without observing the genuineness or authenticity of those documents produced by PW.1 :9: before the IO stating that it contains the signatures of K.N.Lakshmana Gowda. PW.1 admitted that he did not try to produce those documents which contains the original signature of his father. From the unequivocal admission of PW.1 it goes to establish that PW.1 when he filed private complaint all those documents which according to him alleged to contain signature of K.N.Lakshmana Gowda were not with PW.1. In fact those documents were not seized under Mahazar or collected from its originals.
12. Further it is contended that the courts below have failed to notice that PW.3 - Ganesh Gowda who speaks regarding identification of signature of K.N.Lakshmana Gowda over the documents Ex.P1 to P6. He states that while searching the almirah in the house they got those documents of K.N.Lakshmana and later they produced before the IO. But on contrary as per PW.9 - IO, that portion of evidence of PW.3 is an omission. PW.3 also admits that they did not produce those documents before police. The courts below have : 10 : not considered the cross-examination of PW.1 and PW.3 and the PW.9- IO, and the courts below have failed to see that accused No.2 and 3 are only the attestors to Ex.P2 even according to the prosecution. Therefore, in this revision petition it requires re-appreciation of the entire evidence on record as there are inconsistencies and material contradictions in the evidence of the prosecution. On all these grounds, learned counsel for the petitioners prays to allow this petition by setting aside the judgments passed by the courts below.
13. Per contra, learned HCGP for the State has taken me through the evidence of PW-1 who has filed a complaint as per Exhibit P-1 by narrating that Accused No.1 K. Venkatesh had forged the signature of his father K.N. Lakshman Gowda and also obtained the signature of Accused Nos.2 and 3 in Exhibit P-2 'On demand promissory note' and so also Exhibit P-3 'On demand promissory note of Vijaya Bank', as these two vital documents have been relied upon by the prosecution to prove the guilt of the accused.
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14. PW-8, hand writing expert had subjected to examination the disputed signatures of K.N. Lakshman Gowda on Exhibits P-3 to P-5. The Trial Court has appreciated the evidence of PW-1 Avinash and so also the evidence of PW-3 Ganesh Gowda. Their evidence are corroborative with each other coupled with the evidence of PW-9 Investigating Officer who laid a charge-sheet against the accused and secured the documents at Exhibits P-9 to P-14, the original specimen signature of Vijaya Prasad, Accused No.3 and so also Exhibits P-15 to P-20 original specimen signature of Accused No.2 Radhakrishna, Exhibit P-21 to P-30, original specimen signatures of Radhakrishna - Accused No.2, Exhibits P-31 to P-39, the original specimen signatures of Vijayashankar - Accused No.3, in order to come to the conclusion that the prosecution has proved the guilt of the accused for the offence under Sections 467, 468 and 471 of IPC.
15. PW-3 Ganesh Gowda who is the cousin of PW- 1 is said to be acquainted with the handwriting of : 12 : K.N.Lakshman Gowda as found on Exhibit P-2, the promissory note and has stated that the signature found at Exhibit P-2 is not of late K.N. Lakshman Gowda. He has stated in his evidence that Exhibits P-3 to P-5 which were found in the personal file of late Lakshman Gowda, have been tested by PW-8 Handwriting expert. PW-8 has admitted that he has given his report as per the alignment, ascending, descending, even, irregular, arched and pressure of the pen, shading, etc. PW-9 IO who has laid the charge- sheet against the accused has admitted that he has not investigated the authenticity of Exhibits P-4 and P-5 by obtaining the relevant documents from the concerned Departments. The Trial Court has perused the entire evidence, that is, the evidence of PW-1, 3 and 8 and has rightly come to the conclusion that the prosecution has proved the guilt of the accused. Learned counsel had argued that Exhibit P-2 is a genuine document and it is not a false document as contended by the prosecution. However, the evidence of PW-3, 4 and 5 who are said to be attestors for obtaining the specimen signature have : 13 : turned hostile. Merely because these witnesses have turned hostile and their evidence is not in support of the prosecution, cannot cut the root of the prosecution case. On all these grounds urged by the learned HCGP for the State, he seeks for dismissal of the revision petition as it does not arise any interference of the impugned judgments rendered by the courts below.
16. In this background, it is relevant to state that Accused No.1 K. Venkatesh had filed a suit in O.S.No.135/2001 against PW-1 Avinash, his mother Jayamma and also his brother Sudhir for recovery of a sum of Rs.1,00,000/-, which amount was said to be borrowed by his father K.N. Lakshman Gowda on 15.05.1999 by executing an 'On demand promissory note' as per Exhibit P-2. Subsequently, the case in O.S.No.135/2001 came to be dismissed wherein he has produced Exhibits P-7 and P-8 certified copies of the judgment and decree passed by the court where the suit was filed by the plaintiff against the defendant. : 14 :
17. On the basis of a private complaint in PCR No.40/2002, the same was referred to the Jurisdictional police, who registered a case in Crime No.76/2002 against the accused for the offences punishable under Sections 467, 468, 471 read with Section 34 IPC. Subsequently, the case was taken up for investigation by PW-9 who investigated the case and laid a charge- sheet for the aforesaid offences.
18. Subsequently, the charge has been framed against the accused only for offences under Sections 467 and 468 IPC against Accused No.1. The learned counsel for the petitioner has taken me through the charge framed by the Trial Court. It is seen that there is no specific charge framed against Accused No.2 and even incriminating statements have not been recorded by the Trial Court in C.C.No.1683/2003, independently. This itself indicates that there is a miscarriage of justice and it is also to be noted that there are infirmities in the evidence of PWs 1, 3 and 8.
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19. As already stated, the prosecution has placed much reliance on the evidence of PW-1, 3 and 8. PW-1 Avinash who has filed a complaint as per Exhibit P-1 has reiterated all the complaint averments stated in his evidence that his father Lakshmana Gowda died on 24.02.2000. Accused No.1 K. Venkatesh is none other than the close relative of deceased Lakshman Gowda. The said accused Venkatesh had filed a suit in O.S.No.135/2001 against PW-1 Avinash and also his mother Jayamma and his brother Sudhir.
Subsequently, they had verified the documents on which the suit was filed by him and got knowledge of the alleged forgery by these Accused Nos.1 to 3. Exhibit P-2 document does not at all bear the signature of deceased K.N. Lakshman Gowda and the same is a forged document to obtain wrongful gain. Accused Nos.2 and 3 are the employees in the restaurant run by the first accused Venkatesh. However, it is contended that Exhibit P-2 'On demand promissory note' bears the signature of A2 and A3 as attestors. But, during the course of facing of trial by the accused, PW-9 I.O did not : 16 : make any endeavour to get the specimen signature of Accused Nos.1 to 3 and send the same to the handwriting expert in order to compare the signature on the promissory note Exhibit P-3 with the admitted signatures. Further, the evidence of PWs 2, 4 and 5 for the prosecution runs contrary to the evidence of PW-1 Avinash who has filed the complaint.
20. Therefore, on a cursory glance of the aforesaid evidence, it is seen that there is camouflage and also clouds of doubt in the theory put forth by the prosecution in order to prove the guilt of the accused, that the accused No.1 had forged the signature of the deceased.
21. PW-8, the handwriting expert who had tested the documents by comparing the admitted signatures with the disputed signatures has stated that he verified Exhibits P-1 to P-5, P-9 to P-14, P-15 to P-30 and P-31 to P-39 and P-41 to 42 and has issued a report as per Exhibit P-43. The reasons assigned by him is as per Exhibit P-44. There is no dispute that Exhibits P-4 and : 17 : P-5 are the Assets and Liabilities statement submitted by the deceased K.N. Lakshmana Gowda to the Government wherein he was working as an Executive Engineer. The said signature is not similar to the signature found in Exhibit P-2 'on demand promissory note'. Neither during the course of investigation of PW- 9 nor during the course of trial faced by the accused for the aforesaid offences under Sections 467, 468 and 471, they had obtained the specimen signatures of Accused Nos.1, 2 and 3 and their signatures were not tested with the signatures on Exhibits P-2 and P-3 and the same required to be appreciated in a proper perspective by the trial court, if not, it requires to be re-appreciated in this revision petition. Otherwise, there shall be miscarriage of justice.
22. PWs 2, 4 and 5 who were said to be examined for the prosecution who are the attestors these witnesses have not supported the case of the prosecution and their evidence runs contrary to the evidence of PW-1 and PW-3 who are the material : 18 : witnesses for the prosecution to prove the guilt of the accused. PW-1 said to be the son of deceased Lakshman Gowda. PW-3 is the relative of the deceased. But Jayamma being the wife of the deceased K.N. Lakshmana Gowda and his son Sudhir did not give any statement during the course of investigation and PW-9 Investigating Officer did not make any endeavour to record their statements with regard to the complaint filed by PW-1 Avinash against the accused that the accused Venkatesh had forged the signature of his father at Exhibit P2 on the 'on demand promissory note' said to be executed by him for the purpose of purchasing land. In order to prove the guilt of the accused, both oral and documentary evidence placed by the prosecution very much require to be appreciated by the Trial Court and the Appellate Court in a proper perspective manner relating to the ingredients of the offences under Sections 467, 468 and 471 IPC. In order to prove the guilt of the accused the prosecution has examined in all PW-1 to PW-9 and placed much reliance on the evidence of PWs 1, 3 and 8. But, their : 19 : evidence are found to be inconsistent and contradictory to each other. Exhibit P-43 and P-44 are opinion report and the reasons assigned by PW-8 hand writing expert in order to establish that the signatures at Exhibits P2 and P3 have variations and also forged by Accused No.1 wherein Accused Nos.2 and 3 being attestors to the said 'on demand promissory note', but prosecution did not place cogent and acceptable evidence to prove the guilt of the accused.
23. But, having gone through the entire evidence of PW-1, 3 and 8, I find that the impugned judgment rendered by the court below requires to be interfered with, since the court below has not appreciated the entire evidence in a proper perspective. Since the evidence has not been scanned properly, certainly there shall be a miscarriage of justice, as there are infirmities in the evidence of PWs 1, 3 and 8 and evidence of PW-9 the Investigating Officer who laid the charge-sheet against the accused. Therefore, I find that the prosecution has not proved the guilt of the accused : 20 : under Sections 467 and 468 read with Section 34 IPC beyond reasonable doubt by producing cogent, corroborative and positive evidence. Therefore, the impugned judgment requires intervention for the reasons stated since the same suffers from infirmities. Accordingly, the following:
ORDER The petition filed by the petitioner / accused under Section 397 read with Section 401 Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence rendered by the Trial Court in C.C.No.1683/2003 dated 27.07.2010 which has been partly modified by the appellate court in Crl.A.90/2010 dated 22.03.2011 in respect of the aforesaid accused are hereby set aside. Consequently, Accused Nos.1 to 3 are acquitted of the aforesaid offences charged against them. : 21 :
If any fine amount has been deposited, the same shall be refunded to the accused persons on proper identification with acknowledgment.
Sd/-
JUDGE DKB/KS