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2006 DIGILAW 700 (BOM)

Rukhmaji Champakrao Bhise v. State of Maharashtra

2006-04-26

S.P.KUKDAY

body2006
JUDGMENT :- The petitioner, along with co-accused, was charged for having committed offence punishable under sections 467,468,471, 420 read with Section 34 of the Indian Penal Code (in short "IPC"). The learned Chief Judicial Magistrate, Nanded, by his order dated 30-11-1991 convicted the petitioner of the offence punishable under sections 417 and 471 of the IPC and sentenced him to suffer SI for six months. 2. The matter was carried in appeal. The learned 4th Addl. Section Judge, Nanded, partly allowed the appeal, maintaining the conviction and sentence for offence punishable under section 471, IPC. This order is impugned in the present Revision. 3. Facts in nutshell are that there was a recruitment drive for filing 40 posts of Police Constables in month of July, 1988. For this purpose apart from publication of notice, Superintendent of Police, Nanded, invited list of eligible candidates from various Recruitment agencies, including the Tribal Development Department. The name of the petitioner, who is a tribal, was recommended. The petitioner appeared for interview along with documents on 18-7-1988 and produced certificates purported to be issued by the Saraswati Vidyalaya, Gangakhed to show that he has passed VIII standard, which was the minimum required qualification. The petitioner came to be selected for the said post. In due course, the school certificate was referred to the Headmaster of the School for verification. By letters dated 6-8-1988 and 11-8-1988, Kondopant Kulkarni (PW 2), Headmaster of the School intimated that petitioner has never taken education in Saraswati Vidyalaya and that format of the certificate used for giving the school leaving certificate is not that of their School but it is format available in the market. He further stated that the said School Leaving Certificate is not issued by the said School. As a consequence on the directions of the Superintendent of Police. Constable Vasant Vishnupurikar (PW 1) lodged a report against the petitioner and one another. 4. Learned trial Judge found that there is no evidence against the co-accused who is said to be the forger. Similarly there was no direct or circumstantial evidence to show that petitioner has forged the disputed document. In this view of the matter, he acquitted the co-accused; whereas petitioner came to be acquitted of all other offences, except offence punishable under sections 417 and 471 of the IPC and was sentenced as stated earlier. 5. Similarly there was no direct or circumstantial evidence to show that petitioner has forged the disputed document. In this view of the matter, he acquitted the co-accused; whereas petitioner came to be acquitted of all other offences, except offence punishable under sections 417 and 471 of the IPC and was sentenced as stated earlier. 5. Learned Judge of the Appellate Court found that case of the petitioner is not covered by second clause of section 415, which defines cheating, therefore, petitioner could not have been convicted of the offence punishable under section 417 of the IPC. In this view of the matter, he absolved the petitioner from this offence but confirmed the conviction in respect of offence punishable under section 471 of the IPC. This order is impugned in the present Revision. 6. Learned counsel for petitioner contends that prosecution has failed to establish that document was forged, in as much as it is not shown that there was a wrongful loss or wrongful gain to anybody. For this purpose, reliance is placed on the ruling of the Supreme Court reported in AIR 1997 SC page 3424 in the matter of Jibrial Diwan Vs. State of maharashtra; in the alternative, the learned counsel submits that petitioner was young man of 24 years at the time of occurrence in the year 1988. He has now secured another service and is the only bread winner of the family. Having regard to long passage of about 18 years, leniency be shown and imprisonment be reduced to sentence already undergone. 7. Per contra, learned APP has referred to the evidence on record. According to learned APP, in fact, other offences are also established, but as those findings are not challenged, the matter cannot be reopened; however, the fact remains that no case has been made out for interference with the order passed by the lower Appellate Court. 8. The principles governing offence of forgery are now well-settled. According to learned APP, in fact, other offences are also established, but as those findings are not challenged, the matter cannot be reopened; however, the fact remains that no case has been made out for interference with the order passed by the lower Appellate Court. 8. The principles governing offence of forgery are now well-settled. For establishing offence of forgery, prosecution is required to prove that the offender has made a false document or part of it with the intention (a) to cause damage or injury to the public or to any person; or (b) to support any claim of title; or, (c) to cause any person to part with property or (d) to cause any person to enter into express or implied contract; or, (e) to commit fraud that fraud or that fraud may be committed. 9. To constitute forgery, simple making of a false document is sufficient. It is not necessary that document should be published. The injury caused need not always be pecuniary loss or gain. There can be an injury in the form of any harm or loss of reputation etc. If a false certificate is issued in the name of University or educational institution, this lowers the reputation of the Institution and in this view of the matter, a false certificate can be said to adversely affect the institution causing loss of its reputation. The requirements of offence punishable under section 471 of the IPC are that the person concerned should have knowledge or must have had a reason to believe that the document used is a forged document This aspect is considered by the Apex Court in the matter of A. S. Krishnan Vs. State of Kerala reported in (2004)11 SCC 576 : [2004 ALL MR (Cri) 2566 (S.C;)]. The relevant discussion is found in Para no.9 and 10 of the ruling. In Para No.10 it is observed that, "In substance, what it means is that a person must have reason to believe if the circumstances are such that reasonable man would, be probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such as creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such as creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e. "knowledge" and "reason to believe" have to be deduced from various circumstances in the case." 10. In the present case, it can be seen from the evidence of Kondopant Kulkarni (PW 2) who was the Headmaster during the relevant year 1979 in which the certificate is (Exh.22) is purported to have been issued, the period of education is shown from 1977 to 1979. The witness has made it clear that the petitioner has never taken education in the school. The petitioner has adopted a defence that he took education during the period from 1985 to 1988. However, there is nothing to substantiate this defence. The school leaving certificate produced by him also does not refer to this period. However, this defence has been rightly rejected by both the Courts below. Learned counsel for petitioner has placed reliance on the ruling of the Apex Court in the matter of Jibrial Diwan Vs. State of Maharashtra ( AIR 1997 SC 3424 ). The contention based on this ruling was canvassed before both the Courts below and has been rightly rejected in the face of the evidence which shows that petitioner had full knowledge that the certificate produced by him is forged. By producing the certificate, he procured order for his selection for the employment. Had he not used such a forged document, obviously, the job would have been allotted to some other qualified person. Be that, as it may; it is not necessary to elaborate on this aspect. This Court can exercise revisional jurisdiction only in cases where there is patent illegality; or the finding recorded by the lower Court is not based on evidence; or, in the contingency where material evidence has been ignored and the error has led to miscarriage of justice. In the present case, the factual aspect as well as legal principles are properly considered and applied. Therefore, the contention put forth by learned counsel that order passed by the lower Appellate Court is erroneous cannot be sustained. In this view of the matter, the Revision fails. 11. In the present case, the factual aspect as well as legal principles are properly considered and applied. Therefore, the contention put forth by learned counsel that order passed by the lower Appellate Court is erroneous cannot be sustained. In this view of the matter, the Revision fails. 11. At this stage, learned counsel for petitioner has prayed for leniency mentioning that the petitioner was a young boy when he was convicted. The occurrence has taken place in the year 1988 and petitioner had suffered the agony for about I8-years. The protracted litigation is valid mitigating circumstance. In the present case, learned trial Judge as well as Appellate Judge have adopted deterrent theory of punishment. Thus, at the revisional stage, it will not be proper to have recourse to the reformative theory of punishment. Considering the mitigating circumstances pointed out by the learned counsel, the ends of justice would be met if the sentence of imprisonment is reduced from simple imprisonment for six months to simple imprisonment for one month. The petitioner shall surrender to bail before the lower Court on or before 25th May, 2006 to serve unserved sentence. Set off, if admissible, be given to the petitioner. Revision dismissed.