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2014 DIGILAW 419 (BOM)

Vilas Kashinath Parab v. Nashiket Parab

2014-02-17

MRIDULA R.BHATKAR

body2014
Oral Judgment: 1. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel for the respondents waive service. 2. The respondent/complainant has filed a criminal complaint no.376/P/2010/D in the Court of Judicial Magistrate First Class at Mapusa under Section 190(A) of Criminal Procedure Code, thereby praying that the petitioner/accused has committed offences of forgery, cheating and use of false document, thereby punishable under Sections 198, 465, 468 and 420 of the Indian Penal Code. It is the case of the complainant that the petitioner, though was age-barred has fraudulently obtained the Government job by using false birth certificate, showing his age less. 3. The learned Judicial Magistrate First Class issued process under Section 198, 465, 468 and 420 of Indian Penal Code under Section 204 of the Criminal Procedure Code. The said order of issuance of process was challenged by the present petitioner in Criminal Revision Application No.52/2012, before the Additional Sessions Judge, Mapusa. The learned Additional Sessions Judge by passing reasoned order accepted the case of the petitioner on the point of forgery, offences punishable under Section 465 and 468 were not made out and therefore discharged the petitioner from the offences punishable under Section 465, 468 of the Indian Penal Code. However, the learned Additional Sessions Judge maintained the order of the learned Magistrate of issuing process for the offences punishable under Section 198 and 420 of the Indian Penal Code. Being aggrieved by the said order, the present petition is filed. 4. The learned Senior Counsel for the petitioner made threefold submissions. Firstly that in view of the ingredients required under Section 198 of the Indian Penal Code, the offence under Section 198 is not at all made out. To prove offence under Section 198 of the Indian Penal Code, one has to establish ingredients of Section 197 of the Indian Penal Code, i.e. the certificate issued was with knowledge that it was false. Therefore, the word 'such certificate' is used in Section 198 of the Code. Secondly, under Section 198 the maximum punishment can be awarded is of 3 years and thus under Section 468 of the Criminal Procedure Code the offences where the punishment is of 3 years limitation is for a period of 3 years. Therefore, the word 'such certificate' is used in Section 198 of the Code. Secondly, under Section 198 the maximum punishment can be awarded is of 3 years and thus under Section 468 of the Criminal Procedure Code the offences where the punishment is of 3 years limitation is for a period of 3 years. He submitted that as per the case of the complainant the birth certificate which was used as false is dated 12/04/1958, which was used to get the Government job in the year 1988 and the complaint was filed in the year 2010 i.e. nearly after 22 years and thus the complaint is hit by the limitation and is not maintainable. The learned Senior Counsel has further submitted that the complainant has not brought any material on record specially any Government resolution or any circular in respect of the age limit of obtaining the Government service. Whether the limit was 30 years or it is 35 years is not specified. Moreover, if at all a person is from the reserved category then he may get the benefit of more age limit. Thirdly, The learned Senior Counsel submitted that the issuance of process for the offence of cheating under Section 420 is not justified. He argued that assuming the petitioner has used the false document and has obtained the job, however the aggrieved party is Government and Government is not the complainant in the present case. He submitted that the Government has no issue about the correctness of the birth certificate of the petitioner. Moreover, in the complaint itself it is stated that the fact of correctness of the date of birth of the petitioner as 12/04/1958 was verified and found correct. Learned Senior Counsel has submitted that therefore the learned Magistrate has committed an error in issuing process under Section 198 and 420 and the said error was repeated by the learned Additional Sessions Judge by upholding the said order of the learned Magistrate. 5. The learned Counsel for the respondent no.1/original complainant while opposing this revision argued that offence under Section 197 and 198 are totally different. It is necessary to prove that the accused has used the false certificate and the same false certificate was used with knowledge of the falsity and then the ingredients of Section 198 are fulfilled. 5. The learned Counsel for the respondent no.1/original complainant while opposing this revision argued that offence under Section 197 and 198 are totally different. It is necessary to prove that the accused has used the false certificate and the same false certificate was used with knowledge of the falsity and then the ingredients of Section 198 are fulfilled. Learned Counsel submitted that for the purpose of interpretation of Section 198, we cannot rely on the meaning of the false certificate as given in Section 197 of the Indian Penal Code. He further submitted that accused is born on 12/04/1951 and his birth certificate of the said date is registered in the register of birth on 30/04/1951 and the second alleged certificate dated 12/04/1958 was on the other hand shown as registered in the year 1986 i.e. two years prior to the use of the certificate in the year 1988. The learned Counsel further submitted that the use of the false certificate appears obvious and the said certificate was used by the petitioner for the purpose of obtaining Government job. The purpose of using false certificate of the later date was to fall within the age limit of 35. If this certificate would not have been used then he would not have been given the job and therefore he has wrongful gain and the Government has suffered a wrongful loss. He further submitted that in the complaint it is mentioned that in the year 2009 a letter was issued by one Mr. Umesh Palkar to the Government pointing out a fact of false certificate and at the relevant time the respondent had knowledge. The said letter was issued on 22/12/2009 so he had knowledge and thereafter he lodged the complaint on 31/12/2010, thus, is within limitation. Moreover, as per sub-section 3 of Section 468 of Criminal Procedure Code, the process is issued under Section 198 and 420. Maximum punishment can be awarded of 7 years under Section 420 of the Code and therefore the limitation of this connecting section is applicable to Section 198 also. As there is no bar of limitation to try the offence of cheating punishable under Section 420 of the Indian Penal Code, the offence under Section 198 is also within limitation. 6. Maximum punishment can be awarded of 7 years under Section 420 of the Code and therefore the limitation of this connecting section is applicable to Section 198 also. As there is no bar of limitation to try the offence of cheating punishable under Section 420 of the Indian Penal Code, the offence under Section 198 is also within limitation. 6. Learned Additional Sessions Judge has maintained the order of issuance of process under two sections i.e. Section 198 and 420 of the Indian Penal Code. The learned Senior Counsel for the petitioner has raised a point in respect of the erroneous interpretation of Section 198 of the Indian Penal Code by the learned Magistrate and by learned Additional Sessions Judge. Hence, it is useful to reproduce both the sections, which read as under: Section 197 – Issuing or signing false certificate – whoever issues or signs any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence. 198. Using as true a certificate known to be false - Whoever corruptly uses or attempts to use any such certificate as a true certificate, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence. The title of both the sections clarify that Section 197 can be invoked against the persons, who with knowledge issued and signed a false certificate and Section 198 is made applicable to a person who uses it as true to a certificate known to be false. Section 198 undoubtedly pertains to the use of the certificate which is false and Section 197 does not cover any person who uses the certificate, but it only restricts to the person who issues or signs the false certificate. For the purpose of interpretation of the statutes the title of the sections very well can be relied as an internal aid and the titles of these two sections make two distinct offences. The submissions of the learned Senior Counsel that for the purpose of understanding the meaning of word “such” which is used in Section 198 one has to borrow the meaning from Section 197, holds substance. The submissions of the learned Senior Counsel that for the purpose of understanding the meaning of word “such” which is used in Section 198 one has to borrow the meaning from Section 197, holds substance. However, the submissions made by learned Senior Counsel that while proving offence under Section 198, all the ingredients under Section 197 are required to be proved, are not correct. The second clause of Section 198 states that a person who uses such certificate has knowledge that such certificate is false at the time of its use. His submissions are partly accepted and are partly rejected. It is to be elaborated as follows: Under Section 197 the description of a “certificate” is given. The section does not contemplate any certificate which can be used as a false certificate, but it refers to a particular class of a false certificate which if used then the offence under Section 197 is committed. That class of certificate is described in Section 197 itself. It is specified that person issuing the certificate has a legal obligation or a duty to issue or sign a certificate or the certificate by law is admissible in evidence to prove a particular fact, and the person issuing certificate has knowledge that it is a false certificate. Thus, any certificate if issued or if signed by any private person or any authority with knowledge that the same certificate is false that cannot be an offence under Section 197 of the Indian Penal Code. If a certificate is required to be given or signed in performance of a duty under law or it relates to any fact and also it is admissible in evidence then only such certificate if issued with knowledge, is false under Section 197. The said description of the certificate is to be borrowed from the preceding section to explain adjective “such” which is used for certificate under Section 198 of the Indian Penal Code. However, second part of Section 197 “knowing or believing that such certificate is false in any material point” is an adjective clause pertaining to a subject i.e. 'whoever' and not for the 'object certificate'. The word such is used as an adjective for the word certificate, which is false. However, second part of Section 197 “knowing or believing that such certificate is false in any material point” is an adjective clause pertaining to a subject i.e. 'whoever' and not for the 'object certificate'. The word such is used as an adjective for the word certificate, which is false. Therefore, the word “such” is necessarily to be given a meaning which is stated in the first portion of Section 197 and thus the same meaning is contemplated under Section 198 to prove the act within the purport of Section 198 of the Code. The Court has to examine whether a certificate is required by law to be given or signed by law or whether relating to any fact of which such certificate is by law admissible in evidence. 7. In the case in hand, the certificate which is a subject matter of the case is the birth certificate which fulfills the conditions of that class of the certificate as described under Section 197 of the Indian Penal Code. To substantiate this proposition of law, I place reliance on the judgment of Kumar Chowdhury V/s. Emperor reported in AIR 1937 Patna 467. The Division Bench of Patna High Court had an opportunity to deal with the scope of Section 197 and 198 of the Indian Penal Code and has observed that sections 197 and 198 must be read together and it is further observed that: Now, upon reading these sections it is manifest that the certificate which is referred to in Section 198 must be one which is either “required by law to be given or signed” or “is by law admissible in evidence”. 8. The submissions of learned counsel for the respondent no.1 that both the sections are independent and they constitute different and distinct offences is correct. On the point of limitation the complainant has referred a particular date of 22/10/2009 when the letter was sent by one Palkar. At the time of his knowledge of the fact of false certificate, it is true that he has not stated in the complaint any specific unambiguous word that he had knowledge on 22/12/2009. However, it is a matter of evidence and the complainant cannot be scuttled at threshold. Moreover, the process is also issued under Section 420 of the Indian Penal Code. However, it is a matter of evidence and the complainant cannot be scuttled at threshold. Moreover, the process is also issued under Section 420 of the Indian Penal Code. What was the rule in respect of age bar in the Government service is again directly to be proved at the time of evidence. Assuming that inconsistency in the complaint whether it was 30 or 35 years, yet it cannot be said that particular inconsistency is helpful to the petitioner as it is alleged by the complainant that at the relevant time i.e. in the year 1988, the petitioner was 37 years. At the time of his appointment in the year 1988 he was 37 years of age. Section 420 is a cognizable offence and, therefore, any one can set a criminal law in motion. As the Government did not take steps therefore a private complaint is lodged and the learned Court had issued process need not go in all these details and are required to be unfolded before the Trial Court by adducing proper evidence. Thus, the order passed by the learned Sessions Court need not be interfered. The revision is dismissed. Order maintained.