K. Kogga Pai, In re. v. . — 1968 DIGILAW 311 (MAD)

Judgment The appellant who was the accused before the Court of Session was convicted of four different charges. The first was an offence of abetment of an offence of forgery of valuable security punishable under section 467 read with section 109 of the Penal Code. The second was the abetment of an offence of forgery for the purpose of cheating punishable under section 468 read with section 109 of the Penal Code. The third was an offence of using a forged document as genuine knowing or having reason to believe it to be a forged document punishable under sections 465 and 471 of the Penal Code or in the alternative of abetment of those offences punishable under those two sections read with section 109. The fourth ‘was the abetment of an offence of cheating punishable under section 420 read with section 109 of the Penal Code. The Sessions Judge sentenced the accused to rigorous imprisonment for four years in respect of all these four offences and to pay a fine of Rs. 4,000 in respect of the first charge and a fine of Rs. 1,000 each in respect of the third and fourth charges. It is not necessary to refer to the sentences of imprisonment in default of the payment of fines which, as Mr. Dayananda very rightly pointed out, are not in accordance with law. The one remarkable feature of what was done by the Sessions Judge was that he did not choose in respect of the third charge to state whether the accused committed the substantive offences or an offence of abetment. He convicted him of both the main charge and the alternative charge under that count, which should indeed surprise any one. The prosecution case was that a certain Muniswamy Naik who died even before the committal proceedings commenced, brought into existence by the process of forgery a fictitious registration certificate bearing No. MYS 1287, for a goods vehicle which was not in existence. It was said that he did so in order to make it possible for a certain Haryana Kini who also died during the pendency of the committal proceedings and the accused, to obtain from the Regional Transport Officer a new registration certificate purporting to be one relating to No. MYU 4032 in substitution of the forged registration certificate which purported to relate to the goods vehicle bearing No. MYS 1287. It was said that Muniswamy who was a clerk in the Regional Transport Officer's office was abetted by the accused in the commission of forgery which was imputed to Muniswamy Naik, and that he also used the forged registration certificate with the intention of cheating the Regional Transport Officer and inducing him to issue the new registration certificate No. MYU 4032. It is admitted that a certain goods vehicle bearing No. MYS 696 belonged to one Panduranga Bhat (P.W. 2). The prosecution case was that Panduranga Bhat sold that motor vehicle to the accused, and that the accused sold the vehicle so purchased by him after reconditioning it, by the substitution of a new engine for the engine which had not been supplied, to P.W. 6 Jagannath Shetty. It is also said that the sale to Jagannatha Shetty P.W. 6 was preceded by the offence with which the accused was charged. According to the prosecution, Exhibit P-11 an application which bore the signature of a certain Narayana Kini, was made to the Regional Transport Officer, Shimoga on 2nd May, 1960 in which there was an allusion to the surrender of the registration certificate in respect of MYS 1287 and the application made a request that that surrendered registration certificate should be restored to Narayana Kini. Muniswamy Naik, a clerk in the office of the Regional Transport Officer made a note on that application on 3rd May, 1960 that since the owner had applied for registration in the prescribed form the vehicle may be registered. It is on the basis of that note that the Regional Transport Officer granted the registration certificate in respect of a vehicle bearing No. MYU 4032. A part of the prosecution story is that the accused was the person who really purchased the vehicle from Panduranga Bhat and that it was he who sold it to jagannatha Shetty, and that it was he who was responsible for the presentation of the application Exhibit P-11 in the name of Narayana Kini to the Regional Transport Officer for the return of the surrendered certificate in respect of the vehicle No. MYS1287. It is also part of the prosecution case that the new registration certificate in respect of No. MYU 4032 was also obtained by the accused himself although it was really granted by the Regional Transport Officer only to Narayana Kini. It is also part of the prosecution case that the new registration certificate in respect of No. MYU 4032 was also obtained by the accused himself although it was really granted by the Regional Transport Officer only to Narayana Kini. To establish the offences with which the accused was charged, it is necessary for the prosecution to prove that Muniswamy Naik committed the offence of forgery, and that the accused abetted that offence; this is what they have to prove inrespect of charges 1 and 2. In respect of the third charge it was necessary for the prosecution to prove that a forged registration certificate in respect of vehicle No.MYS 1287 was used by the accused for obtaining a tax token in respect of the vehicle No. MYS 1287 was used by the accused for obtaining a tax token in respect of the vehicle he purchased from P.W. 2 Panduranga Bhat, or that at any rate he abetted the use of that false registration certificate. In respect of the fourth charge the prosecution was under a duty to prove that the accused abetted an offence of cheating committed by Muniswamy Naik in inducing the Regional Transport Officer to issue a new registration certificate. Muniswamy Naik who is said to have issued the forged registration certificate relating to No. MYS 1287 was dead before the committal proceedings commenced. Similarly Narayana Kini who presented the application Exhibit P-11 for the return of the forged registration certificate also died during the pendency of those proceedings. So, when the sessions trial commenced, the only person who could be prosecuted was the accused. The Sessions Judge was of the opinion that the prosecution had conclusively established that the registration certificate No. MYS 1287 was a forged document. That registration certificate is Exhibit P-5, and it seems to me that that finding is open to very little criticism. P.W. 1 Mr. Srinivasa Murthy who was the Financial Assistant to the Transpot Commissioner in Mysore during the relevant period gave evidence that the assignment of the letters “MYS” was discontinued from 1st April, 1957, and that he discovered 24 instances in which registration certificates were issued by the assignment of those letters subsequent to their discontinuance and the substitution of other letters such as “MYR” and “MYU”. Exhibit P-5, the forged registration certificate of MYS 1287 according to the prosecution, was issued on 20th May, 1957, after the discontinuance of the employment of the letters MYS. And so, the conclusion reached by P.W. 1 was that that registration certificate was a forged certificate. The other reason assigned by him in reinforcement of that conclusion was that that registration certificate bears the fascimile signature of the Regional Transport Officer which was not authorised. There should be very little doubt that the reasons assigned by P.W. 1 in support of his inference that Exhibit P-5 was a forged registration certificate are unexceptionable. And, since the evidence of P.W. 3 Sri K.P. Narasegowda who was the Regional Transport Officer was that that registration certifiate was written by Muniswamy, it is reasonable to infer that he was the person who forged that registration certificate. But, since the principal offender Muniswamy was dead when the prosecution commenced, the charge of abetment of that offence of forgery against the accused could succeed only if there was evidence that there was active complicity on the part of the accused proceeding the commission of the offence by Muniswamy, or that he afforded material assistance to the principal offender for its commission, through some active steps, by word or action, with intent to instigate the commission of that offence. It is only then that the charge of abetment can succeed; else it fails. The discussion of the evidence concerning abetment has relevance with respect to each of the four charges, since, although the third charge stated that the accused had committed the main offence or in the alternative an abetment of the offence, the Sessions Judge did not find that he had committed the main offence. His judgment s somewhat on the side of obscurity with respect to that matter, and the effect of his discussion is that he was of opinion that there was an offence of abetment, and not the commission of the main offence, and that the accused was not the principal offender. Moreover there is no evidence whatsoever that the main offence to which the third charge relates was committed by the accused, and, the prosecution made no serious attempt to prove that part of the charge. The evidence produced by the prosecution consists of that given by P.Ws. 2, 6, 7, 8, 4, 5, 11 and 12. Moreover there is no evidence whatsoever that the main offence to which the third charge relates was committed by the accused, and, the prosecution made no serious attempt to prove that part of the charge. The evidence produced by the prosecution consists of that given by P.Ws. 2, 6, 7, 8, 4, 5, 11 and 12. P.W. 2 speaks to the purchase of his old moribund goods vehicle bearing No. MYS 696 by the accused from him.P.W. 6 speaks to the purchase by him from the accused of that vehicle after it was reconditioned. P.Ws. 7 and 8 gave evidence about that purchase made by P.W. 6. P.W. 11 gave evidence that he filled up the declaration form Exhibit P-16 at the instance of the accused for obtaining the tax token in respect of the vehicle for which the new number MYU 4032 was assigned. P.W. 12 gave evidence that he typed Exhibit P-11 at the instance of the accused in which Narayana Kini asked for the return of the surrendered registration certificate in respect of No. MYS 1287. The purpose of the production of this evidence by the prosecution was to demonstrate that, although Exhibit P-11 was signed by Narayana Kini and although the declaration form Exhibit P-16 was signed by Narayana Kini, the real purchaser of the goods vehicle from P.W. 2 was the accused, and that Narayana Kini was a mere name-lender. So, the attempt of the prosecution was to prove that the accused was the person who asked for the return of the registration certificate concerning No. MYS 1287, and that the use of the forged registration certificate was really made by the accused and not by Narayana Kini, and that similarly the new registration certificate concerning No. MYU 4032 was’ also obtained by the accused by the commission of the offence of cheating by its abetment, It is not necessary to refer to the evidence of P.Ws 4 and 5 since the Sessions Judge discarded their evidence, and I was not asked in this Court to depend upon it. Panduranga Bhat who was examined as P.W. 2 gave evidence that the persons who came to him to purchase the old goods vehicle were the accused and Narayana Kini, and that the accused was the person who paid him a sum of Rs. 1,000 as part of the price. Panduranga Bhat who was examined as P.W. 2 gave evidence that the persons who came to him to purchase the old goods vehicle were the accused and Narayana Kini, and that the accused was the person who paid him a sum of Rs. 1,000 as part of the price. He stated in his cross-examination that he executed the sale note in favour of the accused, and that possession of the vehicle was also handed over to the accused. But in his cross-examination it was elicited that the person who were managing the transport business of the family to which he belonged were his two brothers, Tulsi Das Bhat and Balasundar Bhat and they were not called to give evidence although they were alive. He stated that he had no personal knowledge of the purchase of the vehicle although he professed to be personally aware of the sale of the vehicle to the accused and that he was not taking any interest himself in any part of the management of the transport business and that his brothers were looking after it. He made the further admission that he was living separately from his brothers. It is utterly improbable that P.W. 2 would have sold the vehicle to any one, since according to his admission in cross-examination he did not himself hand over the engine to the accused and that the engine was left in the garage of Madhava Naik by his brothers for repairs. He made the further admission that he did not know whether it had been repaired. The prosecution offered no explanation for the non-examination of the two brothers of P.W. 2 who were the persons who were in management of the transport business of the family, and so, must have been in possession of all the information about the vehicle. The other evidence in the case will demonstrate that P.W. 2 is not likely to be a witness of truth. The accounts of the business of the family of P.W. 2 were not produced, and, if they had been produced they would have revealed the name of the person who actually paid the price for the purchase of the vehicle. The other evidence in the case will demonstrate that P.W. 2 is not likely to be a witness of truth. The accounts of the business of the family of P.W. 2 were not produced, and, if they had been produced they would have revealed the name of the person who actually paid the price for the purchase of the vehicle. That Narayana Kini must have been the person who paid the money for the purchase is probabilised by the other evidence in the case to which I shall refer, and I do not therefore consider it safe to believe the evidence of P.W. 2 that Narayana Kini was merely present when the purchase transaction concluded and that the accused was the person who really purchased the vehicle. Evidence was given by P.W. 6 Jagannatha Shetty who purchased the vehicle subsequently after it was reconditioned. Although at the commenement of his evidence he stated that be purchased the vehicle from the accused in the year 1960 he had to admit that the advance of a sum of Rs. 1,000 for the purchase was paid by him through a cheque drawn on the Canara Banking Corporation in favour of Narayana Kini. He stated that he did so since the registration certificate stood in his name. He also made the further admission that even the balance of sum of Rs 11,000 was paid by him to the hands of Narayana Kini, although he stated that Narayana Kini in his turn paid it to the accused. He made the further admission that the registration certificate Exhibit P-13 in respect of No. MYU 4032 was handed over by Narayana Kini to him, and that he obtained a receipt Exhibit P-14 from Narayana Kini. He also proceeded to state that the sale note in respect of the transaction was also executed by Narayana Kini. The prosecution has offered no explanation as to why Narayana Kini masqueraded himself as the purchaser of the vehicle from P.W. 2 Panduranga Bhat. or as its seller to P.W. 6 Jagannatha Shetty, and, there is no evidence in support of the prosecution case that Narayana Kini was merely a name-lender. Mr. The prosecution has offered no explanation as to why Narayana Kini masqueraded himself as the purchaser of the vehicle from P.W. 2 Panduranga Bhat. or as its seller to P.W. 6 Jagannatha Shetty, and, there is no evidence in support of the prosecution case that Narayana Kini was merely a name-lender. Mr. Dayananda appearing for the State offered no explanation as to why the accused could not have himself purchased the vehicle from P.W. 2 in his own name, or why he could not have sold the vehicle on his own name to P.W. 6, or why he should have received the proceeds of the sale in the name of Narayana Kini, and not directly. However that may be, what is clearly established by the evidence of P.W. 6 is that the evidence of P.W. 2 that the sale note was executed by P.W. 2 in the name of the accused could not be true If it was, P.W. 6 would not have paid the advance to Narayana Kini or taken a sale note from him; he would have taken it from the accused. The evidence of P.Ws. 7 and 8 does not take the case of the prosecution further. Both of them professed to have been present when P.W. 6 purchased the goods vehicle and both of them stated that consideration was paid by P.W. 6to the hands of Narayana Kini. The Sessions Judge was not, in my opinion, justified in thinking that the evidence of P.W. 2 or the evidence of P.W. 6 could support the inference that the accused was the person who purchased the goods vehicle from P.W. 2 or sold it to P.W. 6 He overlooked the important aspects of the evidence of P.W. 2 and P.W. 6 to which I have so far referred. What remains to be considered is the evidence of P.Ws. 11 and 12. P.W. 12 gave evidence which, far from being of any use to the prosecution, is clearly destructive of its case. His evidence was that he typed two applications, Exhibits P. 11 and P-18, on the same day. Exhibit P-18 purports to be an application through which Narayana Kini surrendered the registration certificate of his lorry bearing No. MYS 1287. Exhibit P-11 purports to be an application presented on 2nd May, 1960 asking for the return of that surrendered registration certificate. His evidence was that he typed two applications, Exhibits P. 11 and P-18, on the same day. Exhibit P-18 purports to be an application through which Narayana Kini surrendered the registration certificate of his lorry bearing No. MYS 1287. Exhibit P-11 purports to be an application presented on 2nd May, 1960 asking for the return of that surrendered registration certificate. The purpose for which this witness was examined was to show that the two applications which were typed on the same day, though they bore different dates, were conceived and made for securing a new registration certificate in place of the old fictitious or forged registration certificate. If the evidence of P.W. 12 is believed, it means that one of those applications, namely, Exhibit P-18, was antedated and whoever was responsible for bringing into existence that antedated document was clearly guilty of an offence of forgery, P.W. 12 himself is equally guilty of that offence, and so, is a person who his demonstrated himself to be both unscrupulous and untrustworthy. That being so, even if his evidence implicated the accused, it could not be considered as evidence which could be safely acted upon. But it is clear that his evidence, even if it is believed and I do not believe it for reasons already mentioned- could to no extent implicate the accused. All that the witness stated was that he typed two applications when the accused had come to him with one of his representatives, and that that representative was Narayana Kini. What is of greater importance is that he stated in his examination in chief itself that Narayana Kini was the person who gave him the draft for one of the applications which he typed. P.W. 12 does not say that the accused had associated himself to any extent with the preparation of the draft or with the bringing into existence of the typed applications. All that his evidence shows is that the accused was in the company of Narayana Kini when Kini gave the draft of Exhibit P-18 to be typed by him. He did not state who gave the draft of Exhibit P-11, and, what is of greater importance is that he did not say that it was given by the accused. So the evidence of P.W. 12 does not to any extent support the charges brought against the accused. He did not state who gave the draft of Exhibit P-11, and, what is of greater importance is that he did not say that it was given by the accused. So the evidence of P.W. 12 does not to any extent support the charges brought against the accused. P.W. 11 did not give evidence more useful to the prosecution. His evidence was that he filled up the declaration form Exhibit P-16 in order to assist the obtaining of a tax token in respect of the goods vehicle. His evidence was that the registration certificates Exhibit P-13 was given to him by the accused and that he asked him to obtain a tax token for the vehicle, and that he filled up Exhibit P-16 accordingly. He stated that the challan Exhibit P-17 evidencing payment of the amount was also given by the accused, and that the accused asked him to obtain the token from the transport authorities. But in his cross examination he admitted that he did not tell the police when he was examined during the investigation that the accused was the person who gave the challan. It is thus clear that his evidence in Court that the accused gave him the challan Exhibit P-17 is an afterthought and that he is not a witness of truth, and it is unsafe to act upon the other part of his statement that the accused was the person who gave Exhibit P-13 or the other document, or that he gave instructions to him to prepare Exhibit P-16. It will thus be seen that the prosecution evidence is neither trustworthy nor acceptable but bristles with improbabilities. Moreover all that it establishes is that at all relevant points of time Narayana Kini was accompanied by the accused and that he was with him on four occasions. The first was when P.W. 2 made the sale, the second was when Narayana Kini sold the goods vehicle to P.W. 6, the third was when Narayana Kini got the application Exhibit P-11 typed and the fourth was. when Exhibit P-16 was prepared by P.W. 11. But the fact that he was so present could be believed- and I have no doubt in my mind that I should not consider it safe to believe it- does not establish any of the four charges brought against the accused. when Exhibit P-16 was prepared by P.W. 11. But the fact that he was so present could be believed- and I have no doubt in my mind that I should not consider it safe to believe it- does not establish any of the four charges brought against the accused. Before proceeding to consider the charge of abetment which is one part of the third charge, it is useful to point out that the other part of that charge made the accusation that the appellant used the bogus registration certificate in respect of vehicle No. MYS 1287 for certain purposes. But, of that, there is no evidence whatsoever. No one has given any evidence that that registration certificate was used by the accused for any purpose whatsoever. The only evidence in respect of it is that Narayana Kini purported to surrender that registration certificate, and that Narayana Kini asked for the return of that certificate or for the issue of a new certificate. That the accused made any use of the forged bogus certificate for any purpose is not the evidence produced by the prosecution, and so, that part of the third charge which spoke of the commission of the offence referred to in it by the accused as a principal offender, has necessarily to fail. The offence to which charges 1, 2 and 4 and the second part of the charge 3 refer is an offence of abetment. The principal offender according to the charges is Muniswamy Naik and the accused the abettor. I have already pointed out that the prosecution may be said to have established with reasonable certainty the offence of forgery by Muniswamy. But the question is whether that offence committed by him was abetted by the accused as alleged by the prosecution and whether there is sufficient evidence in proof of that charge. The offences said to have been abetted by the accused are offences of more than one species of forgery and an offence of cheating. But the question is whether that offence committed by him was abetted by the accused as alleged by the prosecution and whether there is sufficient evidence in proof of that charge. The offences said to have been abetted by the accused are offences of more than one species of forgery and an offence of cheating. The Sessions Judge was of the opinion that the abetment had been proved in respect of each one of those offences, and, all that he stated in support of that finding recorded by him was that the accused was the person who really purchased the goods vehicle from P.W. 2 and sold it to P.W. 6 and that it was he who engineered the presentation of the application Exhibit P-11, and that it was. he who obtained the bogus registration certificate Exhibit P-5. It is clear that the Sessions Judge did not have a correct comprehension in his mind about the ingredients necessary to prove an offence of abetment. He did not state within which part of section 107 of the Penal Code, the act or omission. on the part of the accused, if any, fell; nor did he state the reasons which impelled his conclusion that any offence committed by Muniswamy had been abetted by the accused. Now section 107 which explains ‘abetment’ reads: “A person abets the doing of a thing, who- First- Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of’ that conspiracy, in order to the doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 1- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.- ‘Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.” It is clear from the provisions of this section that an offence of abetment is committed only when a person abets the doing of a thing either by instigation or conspiracy or by intentionally aiding by an act or illegal omission the doing of that thing by the principal offender. What therefore constitutes an offence of abetment is actual complicity which precedes the actual commission of the offence by the principal offender, either through substantial assistance to the principal offender for the commission of the offence or through some word or action which instigates the commission of the offence. The Sessions Judge did not state in his judgment whether there was any instigation by the accused for the commission of any offence by Muniswamy, or whether there was a conspiracy between him and Muniswamy in respect of that offence which preceded its commission, or whether any intentional aid by any act or illegal omission was afforded by the accused which was responsible for the commission of” the offence by Muniswamy. It is this omission on the part of the Sessions Judge to clearly comprehend the provisions of section 107 of the Penal Code and ingredients which constitute an offence of abetment, which was responsible for a desultory and obscure discussion in the course of his judgment that the offences with which the accused was charged had been committed. That, that is so, is clear from the fact that when the Sessions Judge found the accused guilty of the third charge, he did not say whether he found him guilty of the main offence or whether he found him guilty of abetment. That, that is so, is clear from the fact that when the Sessions Judge found the accused guilty of the third charge, he did not say whether he found him guilty of the main offence or whether he found him guilty of abetment. The Sessions Judge appears to have thought that the mere presence of the accused in the company of Narayana Kini when he purchased the goods vehicle from P.W. 2 or when he sold it to P.W. 6, or even when an application (Exhibit P-11) was presented, or when information in Exhibit P-18 was transmitted, or when the declaration form Exhibit P-16 was presented, by itself constituted an offence of abetment. It is clear that it did not. Any association between the accused and Narayana Kini which did not measure up to an instigation, conspiracy or intentional aid in respect of the commission of an offence by Muniswamy, and did not amount to abetment of any of the offences committed by Muniswamy. This is what was overlaying by the Sessions Judge. Of any such instigation, conspiracy or aid, there was singular failure on the part of the prosecution to produce any evidence whatsoever, and it is this feature of the prosecution case that must lead to the failure of the charges brought against the accused. So I allow this appeal and set aside the convictions of the accused of the offences with which he was charged and I set aside the sentences imposed on him. The accused stands acquitted of all the offences with which he was charged. The fine, if paid, will be refunded and the bail bonds are cancelled. S.V.S. ----- Appeal allowed.