Criminal Appeal No.12 of 2013

19th November, 2014

Petitioner Counsel: Mr. S.R. RIVANKAR
Respondent Counsel: Mr. M. TELES

Cases Cited:
Manilal Vs. State of Kerala, 1998 Cri. L.J. 3785 [Para 7,12]
Commr Bombay Vs. Gwalior Rayon Silk Mfg. Co. Ltd. , [Para 12]

JUDGMENT

JUDGMENT :- This is State Appeal against the judgment and order dated 24/01/2012 passed by the learned Assistant Sessions Judge-1, North Goa, Panaji (Assistant Sessions Judge, for short) in Criminal Appeal No. 113 of 2011 by which the respondent who was accused no. 1 in IPC Case No. 29/2001/B, has been acquitted of the offence punishable under section 471 of the Indian Penal Code (I.P.C., for short), by giving benefit of doubt to him.

2. In all four accused persons were tried by the learned Judicial Magistrate, First Class, Panaji (J.M.F.C, for short) in the said IPC Case No. 29/2001/B for offence punishable under Sections 468 and 471 read with Section 34 of I.P.C. Case of the prosecution was as follows:

Prior to 11.07.2000, time not known, at Goa University, Bambolim, the accused no. 1, Conny Pereira obtained forged documents namely mark list and passing certificate of B.Com, from the accused no. 2, Sudesh Naik, who along with accused no 3, Saude Lourence, accused no. 4, Peter Courinho and accused no. 5 , Elvis Almeida, in furtherance of their common intention, forged the same. The accused no. 1, thereafter, produced the said documents before the Passport Office, Panaji, as genuine for obtaining Immigration Check, on his Indian Passport No. A-0940482 fraudulently knowing that the same were forged, thereby cheating the Goa University authorities and the Passport Office. The Registrar of Goa University was requested by the acting Passport Officer from the Passport Office vide letter no. MO2845/00 dated 28/06/2000 to confirm the genuineness of the passing certificate and the mark sheet based on the University records. It was then revealed that seat no. 1374 was allotted to another student namely Ujwala Pundalik Dessai with P. R. No. 92122686 at T. Y. B.Com. Examination held in April 1996 and the subjects offered by said Ujwala Pundalik Dessai were Management, Marketing, Cost Accounting III, IV and V, Sociology and Export Management. As per the result of the examination, said Ujwala Dessai had failed. The total marks gained as per the mark sheet copy submitted by the accused no.1 Conny Pereira to the Passport Office was shown as 253 out of the maximum marks of 600 and in terms of the total marks gained, the percentage was 42% with a remark as Second Class which was against the normal practice for awarding the class. Besides the above, the mark sheet depicted the date of declaration of result as 29/5/1996 when no results were declared by the University on that date. Both the documents submitted by the accused no.1 contained the facsimile rubber stamp signature of the earlier Registrar of Goa University namely Shri G. V. Kamat whose service contract as a Registrar of the University got over on 30/11/1993. Based on the said observations the university came to the conclusion that the said mark sheet and passing certificate had not been issued by the examination section of the Goa University to Shri Conny Nicholas Pereira. The original mark sheet and passing certificate submitted by Shri Pereira to the Passport Office were collected on 10/07/2000 from the Passport Office for verification of the authenticity and on examination it was found that the said documents were not genuine.

3. Accused no. 3 had expired and accused no. 5 was absconding. Accordingly, charge was framed against the accused no. 1, 2 and 4 for the offence under Sections 468 and 471 read with Section 34 of I.P.C. The said accused persons pleaded not guilty. The prosecution examined 14 witnesses in support of its case. The statements of the said three accused persons under Section 313 of Criminal Procedure Code, were recorded. The case of the accused persons was of denial simpliciter. They did not examine any witness in defence.

4. Upon appreciation of the entire evidence on record, the learned J.M.F.C. held that the prosecution had not proved the charge beyond reasonable doubt in respect of the offence under Section 468 r/w Section 34 of I.P.C., against any of the accused persons. No evidence was found against the accused nos. 2 and 4 in respect of the offence under Section 471 of I.P.C. However, the learned J.M.F.C. held that from the evidence of witnesses namely Devidas Borkar (PW1), Vijayendra Kamat (PW2), Dr. Ivaturi Bhanumathi (PW3), Ujwala Dessai (PW4) and Chandrakant Jamble (PW5), it was clear that the accused no.1 had used forged documents i.e. mark sheet and passing certificate before the passport authority for obtaining immigration clearance. The accused nos. 2 and 4 were therefore acquitted, whereas accused no.1 was held guilty of the offence under Section 471 of I.P.C. punishable under Section 465 of I.P.C. and convicted and sentenced to undergo simple imprisonment for a period of four months and to pay fine of Rs. 3,000/-.

5. Aggrieved by the said judgment and order of the learned J.M.F.C., the accused no. 1 preferred the Criminal Appeal no. 113 of 2011 before the Sessions Court. The Assistant Sessions Judge found that there was no convincing evidence to establish that the Passport Officer (PW5) had taken original documents from the accused no.1 and had sent them to the Registrar of Goa University. The learned Assistant Sessions Judge further found that there was serious doubt whether the alleged original documents namely the mark sheet and the passing certificate stated to have been sent to the University by the Passport Officer (PW5) were the same which were actually sent to the handwriting expert. The learned Judge found that the documents said to have been annexed to the application submitted to the Passport Office were not attached and produced in the Court. She found that in terms of letter dated 18/08/2000 which is part of Exhibit 86 colly, which was forwarding letter, only xerox copies of the degree certificate and mark sheet were sent to police. But the said copies of the mark sheet and passing certificate have neither being produced and marked in evidence nor have they been identified by PW5. The last paragraph of the said letter dated 18/08/2000 which is part of Exhibit 86 colly reads as follows :

"As regards handing over of original records we require necessary permission from the Ministry which is being processed upon in this office."

The learned Judge found that there was no conclusive evidence to establish that it was the accused who had attached the documents to the application made to the Passport Officer. There was no evidence that the documents attached to the application were self attested by the accused no.1. The Assistant Sessions Judge, therefore, drew an adverse inference to the effect that if the documents actually annexed to the application at Exhibit 29 were produced, it would have become clear that copies furnished by the accused no.1 along with his application to the Passport Office, were not those of the alleged original which are produced as Exhibit 83 colly. In the backdrop of the above, the learned Assistant Sessions Judge held that the J.M.F.C. was not justified in holding from the evidence of Devidas Borkar, Vijayendra Kamat, Dr. Ivaturi Bhanumathi, Ujwala Dessai and Chandrakant Jamble that it is the accused no.1 who used the forged documents i.e. the mark sheet and passing certificate before the passport authorities for obtaining Immigration clearance. Consequently, the appeal was allowed. The impugned judgment and order dated 26/08/2011 of the learned J.M.F.C. was quashed and set aside and the accused no.1 was acquitted of the offence punishable under Section 471 of I.P.C. by giving him benefit of doubt. The State is aggrieved by the said judgment.

6. Mr. Rivankar, learned Public Prosecutor, submitted that there was no dispute regarding the fact that the accused no.1 had annexed the mark sheet and passing certificate to the application made to the Passport Office with documents which ultimately were found not to be genuine. He therefore urged that the conviction of the accused no.1 for offence under Section 471 of I.P.C. as rendered by the learned J.M.F.C. was not erroneous and was perfectly correct. He submitted that the learned Assistant sessions Judge erred in acquitting the accused. He submitted that the learned Assistant Sessions Judge was on a wrong premise of non-production documents. He submitted that it was never the case of the prosecution that original documents were used and that it was the case of the prosecution that the copies of the documents which were presented to the Passport Office were not copies of genuine documents. He therefore urged that the impugned judgment and order is illegal and perverse and interference with the same is called for. He therefore submitted that the impugned judgment of acquittal be set aside and the judgment of the learned J.M.F.C. be restored.

7. On the other hand, Mr. Teles, learned Counsel for the accused no. 1 submitted that the learned Assistant Sessions Judge has rightly held that the evidence on record was not sufficient to prove that the documents were forged and that forged documents were used by accused no. 1. He relied upon the judgment of Kerala High Court in the case of "Manilal v/s. State of Kerala" [1998 Cri. L.J. 3785] and submitted that in the absence of proof as to forgery, no conviction can be rendered under Section 471 of I.P.C. He pointed out that the learned Assistant Sessions Judge has given benefit of doubt to the accused no.1. He submitted that the view taken by the Judge is probable view and that even if another view is possible the same cannot be substituted. He therefore urged that no interference is called for with the impugned judgment of acquittal.

8. I have minutely gone through the original record and proceedings. I have considered the judgment of the learned J.M.F.C. as well as of the learned Assistant Sessions Judge. I have also gone through the judgment cited by the learned Counsel for the accused no.1.

9. Section 471 of the I.P.C. provides as under:

"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."

10. As per the above provision, a document or electrical record should be fraudulently or dishonestly used as genuine and the said user must have knowledge or reason to believe it to be a forged document or electrical record. The learned J.M.F.C. held that the prosecution could not prove that the accused persons had committed forgery of the said documents namely mark sheet and the passing certificate of B.Com., with an intention that the said forged documents be used for the purpose of cheating. The prosecution did not challenge the said finding of the learned J.M.F.C. and also did not challenge the acquittal of the accused no. 2 and 4 as also the acquittal of the accused persons for the offence punishable under Section 468 read with Section 34 of I.P.C. However, considering the evidence of Devidas Borkar (PW1), Vijayendra Kamat (PW2), Dr. Ivaturi Bhanumathi (PW3), Ujwala Dessai (PW4) and Chandrakant Jamble (PW5), the learned J.M.F.C. held that it was clear that the accused no.1 had used the forged documents before the passport authorities for obtaining the immigration certificate.

11. In my considered opinion, a scrutiny of the evidence of the said witnesses as well as the other evidence on record, reveals that the same cannot convincingly prove the main important fact that the application, along with the documents annexed to the same, was submitted in the Passport Office, by the accused no. 1. According to PW5, the Passport Officer, the application was submitted at the counter and he had not seen the person submitting the said application. PW5 says that as he felt that the said two copies of documents did not appear to him to be genuine, he called said Connie Pereira along with the originals. However, PW5 nowhere says that the accused no. 1, Connie Pereira came with the originals to him and handed over the same to him. According to him, after looking at the originals, he was not satisfied that the documents were genuine. In his statement under Section 313 of Cr.P.C., the accused no. 1 stated that he had gone to the Passport Office and inquired about clearance and he was told that he will have to get it done from Bombay and to see if anyone was there outside the Passport Office who could do the same for him. The accused no. 1 has further stated that he came out and one person told him that he would do it and asked him for photos and money which he gave. Thus, as has been rightly held by the learned Assistant Sessions Judge, there is no sufficient evidence on record to establish that it was the accused who had presented the application and more particularly that he had attached the said copies of false documents to the said application.

12. According to PW13, A. K. Singh, the Assistant Government Examiner of questioned documents, he had examined the original disputed documents. However, it is not proved beyond doubt that the said originals were of the same xerox copies attached to the application made to the Passport Office. To the application made to the Passport Office, admittedly, xerox copies of the mark sheet and passing certificate were attached. In fact, a perusal of the entire evidence on record reveals that xerox copies of passing certificate and statement of marks of the accused no.1 were sent to the Registrar of Goa University. The evidence of PW5, the Passport Officer does not show that he had sent original documents to the Registrar. No doubt, the evidence of PW1 shows that he produced copy of the letter issued by the University to the Passport Office at Exhibit 49 and the reply of the Passport Office along with the original laminated certificate and the mark sheet bearing Sr. No. 1374 and P. R. No. 89121602 dated 29/05/1996 at Exhibit 50. However, the statement of PW1 that they received the original of the same xerox copies of the documents annexed to the application made before the Passport Office, on the same day, is not wholly reliable since PW5 has not stated that he had sent the said documents to the Registrar. Further, the evidence of the Registrar of Goa University (PW1), reveals that he does not say that he had sent the alleged original documents to the Investigating Officer. As has been rightly held by the Assistant Sessions Judge, there is a genuine doubt whether the alleged original documents stated to have been sent to the University by the Passport Office were the same which were actually sent to the handwriting expert (PW13). It is pertinent to note, as pointed out by the learned Assistant Sessions Judge, that the documents said to have been annexed to the application, i.e. the xerox copies of the mark sheet and passing certificate submitted to the Passport Office have not been produced before the Court. The forwarding letter dated 18/08/2000 which is a part of Exhibit 86 colly reveals that original records could not be produced without permission from the Ministry and that the said permission was sought for. Besides the above, as already discussed earlier, there is also no satisfactory evidence to establish that it was the accused who had annexed the said documents to the application made to the Passport Office. In the circumstances above, the learned Assistant Sessions Judge rightly opined that the learned J.M.F.C. was not justified in holding that the accused no.1 used the forged documents, as genuine. In the case of "Manilal" (supra), the Kerala High Court has relied upon the judgment of the Supreme Court in the case of "Commr Bombay v/s. Gwalior Rayon Silk Mfg. Co. Ltd.", wherein it is held that when an accused person has been brought under Section 471 of I.P.C., the prosecution ought to have established that a forged document has been used by the accused as a genuine one. In the absence of proof with regard to the forgery, which is attracted by Section 467 I.P.C., then no conviction under Section 471 would be based on. The Kerala High Court held that in the absence of proof as to forgery, no conviction can be rendered under Section 471 of I.P.C.

13. In view of the discussion supra, the view taken by the learned Assistant Sessions Judge is a probable view. Even if another view is possible, this Court cannot substitute the same. The impugned Judgment of the Assistant Sessions Judge cannot be termed as perverse. Therefore, no interference with the same is called for.

14. In the result, the appeal is rejected.

Appeal dismissed.