Research › Search › Judgment

Madras High Court · body

2004 DIGILAW 1515 (MAD)

L. Kathiresan v. State by Sub Inspector of Police

2004-11-18

A.R.RAMALINGAM

body2004
Judgment :- This revision has been filed against the judgment rendered by the the Additional District Sessions Judge (Fast Track Court III), Chennai in C.A.No.260 of 2001 by confirming the conviction and sentence given by the Additional Chief Metropolitan Magistrate, Egmore, Chennai in C.C.No.827 of 2001, by the petitioner/accused Kathiresan. 2. The case of the prosecution before the Trial Court in C.C.No.827 of 2001, in brief, can be stated as follows:- Bumper prize of rupees two crores for the raffle ticket bearing No.NV 577186 was declared by the Tamil Nadu Government on 8.11.1999. The petitioner/accused viz., Kathiresan, with the intention of cheating the Tamil Nadu Government, altered the numbers in the raffle ticket purchased by him in such a way to claim the bumper prize of rupees two crores for his ticket and presented the same to the Director of Raffle, Tamil Nadu and thereby committed offence under sections 467, 468, 471 and 420 read with 511 IPC. 3. After trial and examining the witnesses for the prosecution viz., P.Ws.1 to 6 besides Exhibits marked as Exs.P1 to P9, the Additional Chief Metropolitan Magistrate has found and come to the conclusion that the petitioner/accused has committed offences under sections 467, 468, 471 read with section 468 and section 420 read with section 511 IPC and consequently, convicted and sentenced the petitioner/accused to undergo one year rigorous imprisonment on each offence with fine of Rs.500/= on each offence. 4. Aggrieved against such conviction and sentence, the petitioner/accused preferred C.A.No.260 of 2001 before the Additional District Sessions Judge (Fast Track Court III), Chennai and the said appellate court also has found and come to the conclusion that the petitioner/accused has committed the offence and consequently, confirmed the conviction and sentence. 5. 4. Aggrieved against such conviction and sentence, the petitioner/accused preferred C.A.No.260 of 2001 before the Additional District Sessions Judge (Fast Track Court III), Chennai and the said appellate court also has found and come to the conclusion that the petitioner/accused has committed the offence and consequently, confirmed the conviction and sentence. 5. Aggrieved against such judgment, this revision has been preferred by the petitioner/accused with the material grounds that both the courts below have erred in coming to the conclusion that the petitioner/accused has committed forgery, cheating and that the courts below have failed note the contradictory evidence of PW4 Alex as if the raffle ticket in question marked as Ex.P3 does not have visible rubber stamp impression indicating from whom it was purchased, but, PW1 Muthusamy and PW6 Investigation Officer have stated that rubber impression is there visibly indicating that the same was sold by K.A.S.Ramdas, agent of Tamil Nadu Raffle Tickets and that the courts below have failed to note the admission of PW1 that no layman can identify and differentiate as to whether the lottery ticket is an original or forged one and that there is no acceptable and clinching evidence to indicate that there is forgery by removing some numbers in the ticket and substituting with other numbers in a way to suit the numbers as if it is the number announced for bumper prize of rupees two crores and particularly the said forgery or alteration was done only by the petitioner/accused and that the courts below have failed to note that there is no mens rea for the accused to commit forgery, cheating, etc., and it was not known to the petitioner/accused that it was a forged one till it was found by the analyst as a forged one and that the courts below have failed to note that the petitioner/accused was only a buyer of Ex.P3 and his possession and claim for money based upon Ex.P3 cannot be considered as an offence and that the courts below have failed to note that PW5 viz., the Forensic Analyst has not disclosed the methods adopted by him to decide as if there is alteration of numbers and no lighting test, X ray test and Chemical Test was done and consequently, the opinion of PW5, as such, alone cannot be a conclusive proof to be relied safely and that the courts below have been carried away by presumption and inference without any legal evidence and therefore, in all, the petitioner/accused deserves to be acquitted from the charges as there is no legal and reliable evidence against him. 6. Counsel appearing for the petitioner/accused, after taking me through the entire evidence available in this case, contended that it is an admitted fact that the petitioner/accused purchased the raffle ticket marked as Ex.P3 from a platform vendor and he presented the same in the State Bank of India, Muthukulathur as spoken by PW2 Thomas and it is also true that the petitioner/accused insured the ticket as advised by PW2 and it is also true that the raffle ticket Ex.P3 was handed over to the Department of Raffle, Tamil Nadu by PW2 and petitioner/accused and another staff of PW2 and it is also true that another man claimed the bumper prize of rupees two crores by producing another ticket bearing the same number to the Director of Raffle Department through State Bank of India at Dindigul and it is also true that both the tickets were sent for Forensic analysis and later, report was given by PW5 as if the ticket marked as Exp3 tendered by the petitioner/accused is an altered and forged one. But, at the same time, he contended that there is no evidence at all regarding the method of alteration adopted for modifying the earlier numbers and substituting the same by some other numbers and it was done only by the petitioner/accused. In this context, he further contended that simply because PW5 has furnished a report marked as Ex.P9, it cannot be safely believed as if such alteration alleged in Ex.P9 was done only by the petitioner/accused. He further pointed out that the expert's opinion in Ex.P9 cannot be conclusively relied and believed without clarifying explanation from PW5 as to how he conducted the test that too without conducting the lighting test, X ray test and Chemical test. It is more so when PW5 himself has admitted in the cross examination that he has not mentioned or disclosed in his report the mode and procedure under which he was able to find out the substitution of numbers in Ex.P3. 7. It is more so when PW5 himself has admitted in the cross examination that he has not mentioned or disclosed in his report the mode and procedure under which he was able to find out the substitution of numbers in Ex.P3. 7. Further, in this case, the Supreme Court ruling reported in CHATT RAM v. STATE OF HARYANA (1980 SCC (CRI.) 243 was brought to my notice wherein it has been held that for offence for forgery in lottery ticket under section 467 and 471 IPC, prosecution should establish that the ticket was a forged document and the accused participated in any manner in the act of forgery and that the accused had requisite mens rea when he presented before the concerned officer to claim the prize and it is also immaterial for section 471 if at any subsequent point of time he comes to know of its forged character of the lottery ticket and in the absence of conclusive proof in respect of these ingredients, conviction cannot be sustained. 8. The learned counsel appearing for the revision petitioner also contended that in this case there is no evidence to indicate that the petitioner/accused had actually participated in committing forgery and alteration of numbers in the lottery ticket marked as Ex.P3 and he was having mens rea at the time of his presentation of the ticket in the State Bank of India, Muthukulathur. He also pointed out that the result of the bumper prize was announced in newspaper on 8.11.1999 and the petitioner/accused happened to present the lottery ticket on the next day itself i.e., on 9.11.1999 in the State Bank of India, Muthukulathur claiming that his ticket is the original ticket. So, in this context, it is to be noted that the petitioner/accused cannot be in a position to have the idea within 24 hours to alter the number by substitution, etc., and present it for the prize amount and it is highly improbable in the practical approach and natural course of events. 9. The Expert's opinion marked as Ex.P9 and the evidence of PW5, in my view, in the light of the above cited Supreme Court ruling, cannot be conclusively accepted and believed as if the petitioner/accused alone has committed the alteration, forgery, etc., without any material and corroborating evidence. 9. The Expert's opinion marked as Ex.P9 and the evidence of PW5, in my view, in the light of the above cited Supreme Court ruling, cannot be conclusively accepted and believed as if the petitioner/accused alone has committed the alteration, forgery, etc., without any material and corroborating evidence. In this context, it is to be pointed out further that if the Investigation Officer had examined the agent called as K.A.S.Ramdas and his Headquarters in Trichy and verified the serial number of tickets he obtained from the Government for sale and their counterfoils and the concerned register maintained by him, he would have been in a position to find out as to whether Ex.P3 ticket itself was sold through the said agent or it is altogether a bogus ticket carrying the same number. 10. No doubt, PW4 viz., one Alex has been examined who is an employee under the agent K.A.S.Ramdas at Madurai Branch to show as if Ex.P3 Raffle ticket was not sold from them on the basis that the rubber stamp of the agent on the backside of the raffle ticket is not visible. At the same time, PW1 Muthusamy, Accounts Officer in the Tamil Nadu Raffle Scheme Department has admitted in the cross examination that Ex.P3 raffle ticket bears rubber stamp impression of the agent K.A.S.Ramdas and he is not in remembrance as to whether the other ticket tendered by one Mohammed Hanifa with the same number had such seal of rubber stamp and he is not aware of the fact that whether the agents of Tamil Nadu Raffle Tickets are using to sell bogus tickets. Likewise, PW6 the investigation officer also has admitted in the cross examination that Ex.P3 raffle ticket has the seal of rubber stamp of the agent K.A.S.Ramdas and he did not examine K.A.S.Ramdas during his investigation and he did not visit the headquarters office of K.A.S.Ramdas at Trichy and verify the documents relating to the maintenance of raffle tickets and their serial numbers, etc. 11. 11. Therefore, simply because PW5 has furnished his report marked as Ex.P9, it cannot be believed as if the petitioner/accused alone should have committed the forgery and alteration, etc., with criminal brain or mens rea to cheat the Government and as pointed out by the revision petitioner's counsel that Ex.P3 ticket may be a bogus one prepared by some other persons like agents and it could have been sold to the public carrying the same serial number and such kind of malpractice of anybody comes into light only when one or more persons begins to claim the prize amount with different tickets with same serial number. It is also significant to say that such disputes are coming to the Director of Tamil Nadu Raffle as admitted by PW1 in the cross examination. 12. Unless and until there is corroborating and material evidence in support of the expert's opinion and his report that the petitioner/accused alone has altered the numbers in the lottery ticket and also presented it with mens rea with the object of getting amount from the Government knowing fully that it is a forged ticket, the petitioner/accused cannot be convicted for the offences charged against him. Obviously in this case, there is no such corroborating material evidence to show that the petitioner/alone has committed the alteration, forgery, etc., and consequently, the expert's opinion and his report, in the absence of clarifying explanation about the mode of alteration, forgery, etc., it cannot be infered that the petitioner/accused alone should have committed the forgery and instead he may be an innocent purchaser and the ticket itself could be a bogus one carrying same serial number. 13. Accordingly, I am of the view that the approach and reasoning of both the courts below solely based upon the expert's evidence and his report to come to the conclusion that the petitioner/accused has committed the offence charged against him cannot be proper and justified. On the other hand, as indicated above, there is no acceptable and reliable proof for the prosecution to say that the petitioner/accused alone has committed the offence and thereby the conviction and sentence given by both the courts below is not proper and justified and it is hit by improper appreciation and reasoning. On the other hand, as indicated above, there is no acceptable and reliable proof for the prosecution to say that the petitioner/accused alone has committed the offence and thereby the conviction and sentence given by both the courts below is not proper and justified and it is hit by improper appreciation and reasoning. Following that it is a fit case where this court can exercise its revisional jurisdiction under section 397 and 401 Cr.P.C to set aside the judgment and conviction against the petitioner/accused. 14. In the result, the revision is allowed and the judgment and conviction rendered by the Trial Court as confirmed by the appellate court is set aside and the petitioner/accused is ordered to be acquitted. The bail bond executed by the petitioner/accused shall stand cancelled.