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2007 DIGILAW 10 (CAL)

TRIPTI KUMAR BOSE v. STATE OF WEST BENGAL

2007-01-10

RUDRENDRA NATH BANERJEE

body2007
( 1 ) THE allegations against the present petitioner Tripti Kr. Bose, as per the first Information Report lodged by Biplob Kr. Goswami Central Reserve Officer were for offences under Sections 120b, 420, 467, 468 and 471 Indian Penal code. ( 2 ) IN a nutshell the allegations were that during the inspection of the central Nominal Register in October,1991 at the Office of Central Reserve officer it could be detected that the date of birth of S. I. Tripti Kr. Bose (accused)was recorded in the said register as on 27. 11. 1931. Accordingly, the said accused was to retire from service by that time. But as he was still in service, on enquiry, it was found that the date of birth appearing in the first page of his service book was recorded as 27. 11. 1934 and the age mentioned in the verification roll was recorded 20 years in 1955. The said two entries in the service book and in the verification roll of the petitioner/accused were sent to the handwriting expert and it was found on examination that both of them were interpolated. In the service book the figure 4' was interpolated and after such interpolation the date of birth was 27. 11. 1934 as against 27. 11. 1931 recorded in the Central Nominal Register. It was further found by the handwriting expert that the age of the accused in the verification roll was altered as 20' in the year 1955 interpolating some other age at that place. It was also opined that such interpolations were made in the place of the relevant figures, by physical rubbing and erasing the original figure therefrom. The said service book and the verification roll were kept in an Almirah in the office where the petitioner/accused used to work for a certain period during his service and he had sufficient access to such register. However, the petitioner worked even after his due date of retirement for 27 months and the Government had to pay Rs. 56,506. 10 Paisa for such period towards his salary and other allowances. ( 3 ) UPON such allegation the Hare Street Police Station drew up the formal f. I. R. No, 455 dated 01. 07. However, the petitioner worked even after his due date of retirement for 27 months and the Government had to pay Rs. 56,506. 10 Paisa for such period towards his salary and other allowances. ( 3 ) UPON such allegation the Hare Street Police Station drew up the formal f. I. R. No, 455 dated 01. 07. 1992 under Sections 120b, 420, 467, 468 and 471 i. P. C. againstthe accused and started investigation on the completion of which charge-sheet for offences under Sections 420, 467, 468 and 471 I. P. C. was submitted against him, and ultimately charge was framed against the accused for such offences and the case was tried by the Metropolitan Magistrate, 11th court, Calcutta and ultimately the trial ended with a judgment of conviction of the accused/petitioner under Section 471 I. P. C. sentencing him to suffer S. I. for two years and to pay fine of Rs. 2,000/- in default of S. I. for two months more. Learned trial Court of course acquitted the accused from the charge of other alleged offences under Sections 420, 467, 468 I. P. C. ( 4 ) LEARNED trial Court in the judgment found forgery in respect of the year of birth in the service book and also found the accused guilty upon circumstantial evidence that it was the accused who had access in the service book and who was benefited by such interpolation of year of birth from 1931 to 1934. ( 5 ) THE present petitioner/accused preferred the Criminal Appeal No. 2 of 2002 against such judgment of conviction and sentence and the appellate court i. e. learned Judge, 12th Court of City Civil and Sessions Court Kolkata and the said appellate Court confirmed the trial Court's judgment of conviction and sentence. The present petitioner then filed this instant application for revision under Section 482 of the Code of Criminal Procedure. ( 6 ) MR. Malay Kr. Singh, learned Advocate for the petitioner while challenging the observations of the Courts below invited this Court to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure firstly, on the ground that the finding of both the Courts below that there was forgery of the date of birth in the service book of the accused is a perverse one and against the weight of evidence. ( 7 ) SECONDLY, that there is no evidence showing involvement of the petitioner/accused in committing the alleged offence of forgery. ( 8 ) THIRDLY, Mr. Malay Kr. Singh, learned Advocate contended that there being no evidence of forgery in respect of date of birth written in words in the service book of the accused, the High Court must interfere with the perverse observation of learned Courts below regarding the use of such allegedly forged document by the accused with the knowledge that the same was forged. ( 9 ) FOURTHLY, Mr, Singh has further urged that the alleged offences under sections 420, 467, 468 I. P. C. being not established as per observation of learned Court below the petitioner/accused cannot be convicted under Section 471 Indian Penal Code under the facts and circumstances of the case and under law. ( 10 ) BEFORE entering into the merit of the case and the evidence-on-record be it made clear that the learned trial Court held the accused/petitioner guilty of offence under Section 471 Indian Penal Code while found him not guilty of offence under Sections 420, 467, 468 and accordingly he was convicted and sentenced only for offence under Section 471 Indian Penal code and was acquitted from other charges. Learned Judge heard the appeal preferred by the convicted petitioner and confirmed the judgment of conviction and sentence passed by the learned trial Court. Against such decision of the first Appellate Court the present petitioner/accused has preferred this instant revision under Section 482 of the Cr. P. C. No appeal, of course, has been preferred by the State challenging the judgment of acquittal. ( 11 ) THE inherent power conferred upon this Court under Section 482 of the Cr. P. C. is to interfere only to prevent the abuse of process of the Court or otherwise to secure ends of justice. Mr. Kasem Ali, learned Advocate appearing for the State has pointed out to the principle that such inherent power is to be exercised sparingly and only as and when it is absolutely necessary for the aforesaid purposes or to give effect to any order under the Code. Such proposition of law is not disputed. After all the inherent power under Section 482 Cr. Such proposition of law is not disputed. After all the inherent power under Section 482 Cr. P. C. is conferred upon the Court to exercise such power with circumspection ex debitio justitiae to do real and substantial justice and to prevent abuse of process of Court. Such principle is laid down by the Supreme court reported in 2006 (3) Supreme Court Cases (Cri) 233, Central Bureau of investigation v. Ravi Shankar Srivastava, IAS and Anr. ( 12 ) IT is true that this Court is not sitting as a Court of second appeal and accordingly there is practically no scope to look into the evidence on record until and unless there appears to be any flagrant defect apparent on the face of the record that miscarriage of justice is caused by the judgments of the trial and the First Appellate Court. In other words it can be said that if even on point of fact learned Courts below is found to have committed a glaring mistake causing a perverse finding then this Court although not, sitting in a second appeal may interfere to prevent the abuse of process of Court or otherwise to secure the ends of justice. Such proposition flows from the ratio held in the aforesaid decision and other decisions of the Hon'ble Supreme court. ( 13 ) THE crucial controversy between the parties is regarding the entry of date of birth in the service book of the petitioner/accused who joined the service of police force as a constable thereunder in the year 1955, his date of birth was apparently recorded as 27. 11. 34. But, it was detected in the year 1991 that in the Central Nominal Register of the accused his date of birth was recorded as 27. 11. 31. The entry in the service book of the accused/petitioner was interpolated by making his date of birth 27th November, 1934. The verification roll submitted by him in the office in 1954 his age was recorded as 20', years. Those entries were examined by the handwriting expert and it was opined in the report Ext-10 that the figure 4' in respect of the year of birth in service book was interpolated in place of some other figure after erasing by physical rubbing such previous figure which could not be detected inspite of severe tests. Those entries were examined by the handwriting expert and it was opined in the report Ext-10 that the figure 4' in respect of the year of birth in service book was interpolated in place of some other figure after erasing by physical rubbing such previous figure which could not be detected inspite of severe tests. It has been further opined that in the verification roll the age of the petitioner was shown on interpolation as 20' in the place of some other figure. To be more specific the handwriting expert opined that the figure 0' in such questioned writing Q2 in verification roll was a forged one and was interpolated in the place of some other figure which could not also be detected. ( 14 ) UNDISPUTEDLY there is no direct evidence of forgery caused by the petitioner himself. But at one point of time during his service career the petitioner was in-charge of the key of the almirah where such service book used to be kept, and the petitioner being benefited by drawal of salary and other allowances even after the actual date of retirement as per entry of date of birth in the nominal register the learned trial Court held the petitioner guilty of using such forged document for his own benefit under Section 471 I. P. C. learned trial Court has actually acted on the evidence of the handwriting expert regarding the forgery and the circumstantial evidence raising presumption that it was the accused who has used such forged document for his own benefit knowing it to be a forged one. Learned First Appellate Court has also accepted such findings of learned trial Court and has confirmed the decision of conviction and sentence of the trial Court. ( 15 ) ON scrutiny of the first page of the service book marked Exhibit- 4' that is the particular column for mentioning the date of birth 'by Christian era' of the petitioner it is found to have been written in ink 27th November, 1934 (Twenty' Seven day of November one thousand nine hundred thirty four)'. Now according to the report of the handwriting expert Exhibit- 9', the figure 4' in respect of the year of birth 1934 has been interpolated and forged alter rubbing of the previous figure which could not be detected in any way. Now according to the report of the handwriting expert Exhibit- 9', the figure 4' in respect of the year of birth 1934 has been interpolated and forged alter rubbing of the previous figure which could not be detected in any way. But even if it is accepted that the expert's report is a correct one then question as to the genuineness and correctness of the word thirty four is left open. There is apparently no over writing in the words 'thirty four'. Learned trial Court held' forgery in respect of such year of birth and held that the accused having access to such service book and having taken the benefit of such forged date of birth by drawal of salaries of 57 months even after his actual superannuation used such forged document knowing or believing it to be forged. But learned trial court did not consider in the four corners of the judgment as to why no explanation is forth coming from the end of prosecution as to the existence of date of birth written in words in the said service book. There is also no evidence-on-record that such date of birth in words was incorporated subsequent to the enquiry or examination by the handwriting expert. ( 16 ) LEARNED First Appellate Court also overlooked this very defect of the prosecution case and did not spend a single word to explain or reconcile the defect or omission from the end of prosecution, although the matter was brought to its notice by submitting written argument. ( 17 ) MR. Kasem AN learned Advocate appearing for the State before this court pointed out to the fact that there was no cross-examination to the handwriting expert or the I. O. as to non-examination of the date of birth in words appearing in the service book. Although there was no such specific cross-examination from the end of defence, but it cannot be overlooked that prosecution witness No. 7, Biswanath Sarkhel, the Inspector of Police who enquired the case has staled in the cross-examination that he was not asked to hold enquiry as to the entry of date of birth in the service book of the accused person which was written in words as such no opinion was sought for in respect of date of birth in words. The F. I. R. it self does not even disclose any such date of birth written in words. ( 18 ) THE P. W. 8, Tapan Kumar Roy, the handwriting expert did not speak of any attempt to examine such date of birth expressed in words. From the evidence of P. W. 9, Prabir Kumar Dasgupta, the l. O. of the case it is gathered that he does not claim that such date of birth written in words was sent to the handwriting expert for examination. Simply because allegedly such writing was in different ink the existence of such handwriting cannot be ignored while holding a forgery in a criminal trial and thereby convicting the accused basing upon such finding. ( 19 ) THE P. W. 8, Tapan Kumar Roy, the handwriting expert has spoken of his examination in respect of the date of birth in figure and found forgery in respect of the figure 4' in the year of birth 1934' and he also examined the figure 20' and found that the figure 0' in 20' years marked Q2 has boon forged and written in different ink. The report does not indicate that the entry in figure 4' in the service book and the entry in figure 'o' in the verification roll were made by the person who wrote the standard writing A1 and A2 that is the present petitioner. Thus, it appear's that in ascertaining the forgery of the date of birth of the present petitioner in the service book, such date of birth expressed in words have not been examined by the handwriting expert and it is not established directly that it was the accused/petitioner who made this forgery. ( 20 ) THUS, the contention of Mr. Kasem Ali, learned Advocate for the state that there was no specific cross-examination in this regard does not stand. It might be that the handwriting expert P. W. 8 was not cross- examined specifically as to why there was no examination of the date of birth expressed in words in the service book. But, it cannot be ignored that in criminal trial the prosecution is to place all the cards before the Court and to convince the court that the allegation of forgery was established and proved and the degree of proof was beyond any reasonable doubt. But, it cannot be ignored that in criminal trial the prosecution is to place all the cards before the Court and to convince the court that the allegation of forgery was established and proved and the degree of proof was beyond any reasonable doubt. Such forgery having not been established beyond all reasonable doubts, it cannot be held that the accused had the knowledge of such forgery or that he had reasons to believe the same. Simply because at one point of time during his service career the accused was in charge of the key of the almirah where his service book was kept it cannot be said with certainty that he forged the document or that he had the knowledge of such forgery as alleged. ( 21 ) HAD the learned Courts below considered the existence of the expression of date of birth in words, there must have been a doubt as to the genuineness of the prosecution case and the correctness of the hand writing expert's report. Learned Courts below having noticed such discrepancy in the expression of date of birth in figures and in words could have called any witness as Court witness under Section 311 of the Cr. P. C. to reconcile such difference in expressing the date of birth. But instead of doing this the learned Court below accepted report of the handwriting expert straightway over looking the expression of date of birth in words. It should be kept in mind that the report of the expert is not a sacrocent to be accepted in all circumstances. The Section 42 of the Evidence Act only makes the report of handwriting expert relevant only. There was every reason to invite doubt as to the genuineness of the prosecution case and the report of the expert under the present circumstances. Practically speaking no judicial mind has been applied in respect of the existence of such expression of date of birth in words in the service book. Learned Courts below ought to have held scope of doubt in the evidence led by prosecution and the benefit of doubt ought to have been extended in favour of the accused. Such doubt is not removed by the statement of the accused under Section 313 Cr. P. C. where the accused has pleaded not guilty in unambiguous voice. Learned Courts below ought to have held scope of doubt in the evidence led by prosecution and the benefit of doubt ought to have been extended in favour of the accused. Such doubt is not removed by the statement of the accused under Section 313 Cr. P. C. where the accused has pleaded not guilty in unambiguous voice. It cannot be interpreted by twisting a part of such statement as admission in favour of the prosecution. ( 22 ) THIS Court cannot shut its eyes to the perverse finding apparently on the face of the record by both the Courts below. In a criminal trial there is no place of surmise or conjecture in convicting an accused for offence charged for. It may not be over looked that the verification roll does not mention the age of the petitioner at the relevant period of filling up of the roll in words. The experts opinion does not specifically mention as to what was there previously in the place of 20' years before the alleged interpolation. At the same time the central Nominal Register was not filled in nor signed by the petitioner concerned and the date of birth mentioned therein cannot be binding upon him. The disposition register prepared long after his joining the service mentions his date of birth as 27. 11. 34. Simply on the basis of entry in the Central Nominal register, the accused/petitioner cannot be said to have drawn his salary even after his actual date of superannuation, specially when the entry in such register does not bear the signature of the accused/petitioner. ( 23 ) THE alleged forgery being not established beyond reasonable doubt, and there being no direct, evidence that the accused committed such forgery, it cannot be inferred that the accused had the knowledge or reason to believe that the document was a forged one and thus he cannot be held guilty of offence under Section 471 Indian Penal Code. The decision reported in AIR 1979 Supreme Court 1506, cited by Mr. Singh can be relied in this regard. ( 24 ) THUS, considering all such facts and circumstances I find it expedient to invoke Section 482 of the Code of Criminal Procedure for preventing the abuse of the process of Court and otherwise to secure ends of justice. The decision reported in AIR 1979 Supreme Court 1506, cited by Mr. Singh can be relied in this regard. ( 24 ) THUS, considering all such facts and circumstances I find it expedient to invoke Section 482 of the Code of Criminal Procedure for preventing the abuse of the process of Court and otherwise to secure ends of justice. The first, second and the third contention of learned Advocate for the petitioner thus appears to be convincing. ( 25 ) REGARDING the last contention of Mr. Singh that the accused being acquitted from the charge of offences under Sections 420, 467 and 468 Indian penal Code he cannot be held guilty under Section 471 Indian Penal Code, I find no reason to agree with such proposition. The offence under Section 471 indian Penal Code that is the use of forged document knowing it or having reason to believe it to be a forged one is a separate offence independent of the offences under Sections 420, 467 and 468 Indian Penal Code, although forgery is a common constituent of offences under Sections 467/468/471 I. P. C. Of course, here in the present case there is no evidence to the effect that the accused/petitioner had the reason to believe that his date of birth was a forged one nor is there any evidence to show that he had the knowledge about the entry in the Central Nominal Register showing his date of birth as 27. 11. 31. Thus, the finding that the accused had committed offence under Section 471 indian Penal Code is not based on material evidence-on-record and such finding appears to be a perverse one which is apparent on the face of record itself. ( 26 ) IT appears that the case is as old as of 1992, Already 14 years have passed to have ah end of the decision. It will be useless and unjust lo direct a denovo trial or to give scope to the prosecution to rectify or repair its own case. ( 27 ) THUS, under all such circumstances, the revisional application succeeds. ( 28 ) THE judgment of conviction and sentence passed by learned trial court and affirmed by the learned First Appellate Court, both are set aside. The accused/petitioner is found not guilty of the offence under Section 471 indian Penal Code and he is acquitted therefrom and he is released from bail bond.