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2015 DIGILAW 422 (GAU)

Alaluddiin Ahmed v. Abdul Gani Akanda

2015-04-06

BIPLAB KUMAR SHARMA

body2015
JUDGMENT Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment of acquittal dated 27.01.2006 of the learned Chief Judicial Magistrate, Morigaon in GR Case No. 630/2001. By the said judgment, the learned CJM has acquitted the accused persons namely Abdul Gani Akand and Ajijur Rahman Akand. It will be pertinent to mention here that the accused No. 2 Ajijur Rahman Akand is the nephew of accused No. 1 Abdul Gani Akand. They are stated to be involved in forging of documents relating to educational institution including educational qualification certificate etc. of the accused No. 2. When the impugned judgment of acquittal was delivered on 27.1.2006, the amended provision i.e. proviso to Section 372 CrPC was not in existence. The said proviso came into bring with effect from 31.2.2009 pursuant to the amendment vide the Act of 5 of 2009 (Section 29). The amended provision is quoted below: "provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court." 2. Mr. B.M. Choudhury, learned counsel for the accused person referring to the aforesaid amended provision submits that the complainant could not have preferred the instant appeal against the impugned judgment of acquittal dated 27.1.2006. According to him, as per the provision of Section 401 CrPC only revisional remedy that too within the narrow campus and parameters laid down in the said section was available to the complainant. On this, Mr. B. Chakraborty, learned counsel representing the appellant submits that this Court has power and jurisdiction to convert the appeal to a revision petition, more particularly, when the appeal was admitted way back in 2006 and to be precise on 2.8.2006. He further submits that having regard to the manifest error of law coupled with the procedural error committed by the learned Trial Court, the impugned judgment of acquittal is required to be interfered with exercising revisional jurisdiction as envisaged under Section 401 CrPC. 3. Having regard to the aforesaid arguments advanced by the learned counsel for the parties, I am inclined to convert this appeal to that of Criminal Revision Petition and the Registry shall register the instant appeal as Criminal Revision Petition. 4. 3. Having regard to the aforesaid arguments advanced by the learned counsel for the parties, I am inclined to convert this appeal to that of Criminal Revision Petition and the Registry shall register the instant appeal as Criminal Revision Petition. 4. Upon such conversion of the appeal to that of the revision petition, I now proceed with the merit of the case so as to find out as to whether the impugned judgment of acquittal is liable to be interfered with exercising revisional jurisdiction within its scope and ambit. 5. The aforesaid GR case No. 630/2001 was registered on the basis of one FIR and another complaint lodged by two different persons. While the FIR was lodged by one Sri Nupur Sarma, the then District Elementary Education Officer (DEEO), Morigaon, the complaint was lodged by the present appellant. In the FIR lodged by the DEEO on 2.11.2001, it was alleged that the mark sheet (photocopy) bearing Roll A-285 No. 105 of 1991 in respect of the accused No. 2 namely Ajujur Rahman Akand purportedly issued by the Board of Secondary Education, Assam (SEBA) on being verified was found to be a forged document. By the said FIR, the DEEO made a request to unearth the racket of such forgery. 6. After lodging the aforesaid FIR on 2.11.2001, the complainant/appellant (now the petitioner in this revision petition) filed the complaint on 18.2.2002 alleging that the accused No. 1 namely Abdul Gani Akand in his capacity as Headmaster of Dewaguri M.E. Madrassa had forged the signature of the Managing Committee President towards appointing his nephew i.e. the accused No. 2 Ajijur Rahman Akand, who was working as honorary teacher in the said Madrassa in 1993. It was further alleged that in fact the said accused did not even acquire the required qualification of Higher Secondary Examination in 1991. He passed the said examination only in 1997. The accused No. 2 worked in the Madrassa from 1993 to 1999 as honorary teacher and drew regular salary for period from 1.3.1999 to 28.2.2000. According to the complaint, the accused No. 2 never attended the Madrassa. Later on he was transferred to Nagabandha Girls M.E. School. The accused No. 2 committed another forgery in appointing one Mamtaz Begum as Assistant Teacher. He also drew Rs. 50,000/- as arrear pay of accused No. 2 from 1.3.1999 to 28.2.2000 and the said amount was misappropriated. According to the complaint, the accused No. 2 never attended the Madrassa. Later on he was transferred to Nagabandha Girls M.E. School. The accused No. 2 committed another forgery in appointing one Mamtaz Begum as Assistant Teacher. He also drew Rs. 50,000/- as arrear pay of accused No. 2 from 1.3.1999 to 28.2.2000 and the said amount was misappropriated. The service of Mamtaz Begum was regularized on 25.11.1999, although she actually joined the school on 7.5.2001. However, she was shown to have drawn her salary for the month of April, 2001. In this way the accused No. 1 forged the relevant records and misappropriated Government money. 7. Although the aforesaid FIR and the complaint were separately registered and the investigation was carried out by the Laharighat Police Station, but having regard to the nature of the offence purportedly committed by the accused persons, both were amalgamated into on, which eventually gave rise to GR Case No. 630/2001. On conclusion of the investigation, charge sheet was submitted against the 2 accused persons under Section 468/420/471 IPC. Cognizance having been taken, process was issued to the accused persons and thereafter upon their appearance, charge were framed against them under Sections468/471/420/34 IPC, which were read over and explained to them, to which they pleaded not guilty and claimed to be tried. 8. The learned Trial Court raising the following points for determination having answered the same in favour of the accused persons vide the impugned judgment of acquittal, the complainant has filed this appeal (now converted to revision petition) "(I) Whether from 1.3.1999 to 28.2.2000 at Dewaguri M.E. Madrasa under Laharighat P.S. the accused persons in furtherance of common intention forged the Higher Secondary Leaving Certificate of Ajijur Rahman Akanda intending that it shall be used for the purpose of cheating? (II) Whether on the same period and place the accused persons in furtherance of a common intention fraudulently used as genuine the H.S.L.C. certification of Md. Ajijur Rahman Akanda which they knew or had reason to believe at that time when the accused used it to be a forged document? (III) Whether on the same period and place the accused persons in furtherance of common intention cheated the Govt. of Assam by the dishonesty inducing to deliver the salary amounting to Rs. 50,000/- from 1.3.1999 to 28.2.2000?" 9. During trial, prosecution examined 11 witnesses and also exhibited certain documents. (III) Whether on the same period and place the accused persons in furtherance of common intention cheated the Govt. of Assam by the dishonesty inducing to deliver the salary amounting to Rs. 50,000/- from 1.3.1999 to 28.2.2000?" 9. During trial, prosecution examined 11 witnesses and also exhibited certain documents. PW-4 i.e. the DEEO in his deposition stated that on 6.3.2002, he was the DEEO, Morigaon while the accused No. 1 was the Headmaster of Dewaguri M.E. Madrassa. In September/October of 2000, some people informed him that the accused No. 2 whose service was regularized in 1999 had not actually passed the HSLC examination in 1991. With such information furnished, he was also handed over with one photocopy of the mark sheet of 1994 showing him to have passed the said examination. Thereafter he directed the accused No. 1 to produce the original mark sheet and certificate of accused No. 2, but he did not Thereafter he sought clarification from the office of the SEBA as to whether the accused No. 2 had passed the HSLC examination in 1991. In turn, the SEBA authority informed him that the HSLC certification of 1991 showing the accused No. 2 to have passed the examination was a fake one and that the one of 1994 submitted by public was correct one. He went on to depose that police seized the Photostat copy of HSLC certificate of 1994 of the accused No. 2 and so also the mark sheet and certificate of 1991 HSLC examination. This witness also proved the documents find mention in the impugned judgment pertaining to the alleged forgery of documents. He further deposed that later on the accused No. 1 was placed under suspension because of the alleged forgery committed by him. 10. On the other hand, the complainant (PW-1) in his deposition stated that the accused No. 1 in his capacity as Headmaster of Dewaguri M.E. Madrassa for the period from 1980 to 8.11.2001 had forged the signatures of the President and Members of the Managing Committee towards appointing the accused No. 2, who incidentally is his nephew. He in his deposition mentioned the name of the President and Members of the Managing Committee. He stated that the appointment was made in 1993 and the accused No. 2 was allowed to sign the attendance register. However, he never attended the Madrassa, but his service was regularized on 1.3.1999. He in his deposition mentioned the name of the President and Members of the Managing Committee. He stated that the appointment was made in 1993 and the accused No. 2 was allowed to sign the attendance register. However, he never attended the Madrassa, but his service was regularized on 1.3.1999. He in his deposition further stated that the accused No. 2 passed the HSLC examination in 1994, but on the other hand, the DEEO, Morigaon regularized his service on the basis of the HSLC certificate and mark sheet of 1991, which were all forged. The accused No. 1 drew salary of the accused No. 2 from 1.3.1999 to 28.2.2000, although during that period he never attended the Madrassa, even for a single day. On being apprised, the DEEO, Morigaon sent the certificates and mark sheets of 1991 and 1994 to SEBA and SEBA in turn declared the certificate and mark sheet of 1991 as forged one. Thereafter, the service of the accused No. 2 was terminated in 2001 and the accused No. 1 was placed under suspension on 9.11.2001. 11. The other witnesses including the PW-9, the in-charge Head Assistant of DEEO, Morigaon deposed that in 2001 the accused No. 1 appointed his own nephew i.e. the accused No. 2 by submitting false mark sheet and certificate. Later on finding the fault, his service was terminated and accused No. 1 was placed under suspension. 12. Ext. 9, 10 and 11 are the documents pertaining to forgery of documents including the certificate and mark sheets. As recorded in the impugned judgment of acquittal, the I/O did not seize those documents from the office. PW-9 stated that those documents were in his custody as the Head Assistant. The learned Trial Court has acquitted the two accused persons primarily on the following grounds. "(I) The prosecution did not examine the President of the Managing Committee namely Rajab Ali to prove its case. (II) The complainant i.e. the petitioner did not see the forged papers/recorded proceedings of the Managing Committee, in which the signature of the Members were available. (III) The alleged forged documents were not sent to any handwriting expert. (IV) The complainant i.e. the petitioner although was aware of the happenings way back in the year 1993, but he filed the complaint only in 2002. (III) The alleged forged documents were not sent to any handwriting expert. (IV) The complainant i.e. the petitioner although was aware of the happenings way back in the year 1993, but he filed the complaint only in 2002. (V) Only the Photostat copies of the forged documents were seized from the office of the DEEO and that there was no signatures of any of the office staff over those Photostat copies, which were sized by the I/O. (VI) Although the forged mark sheet and certificate of the accused No. 2 might be available in the office of the DEEO as deposed by PW-9, but the prosecution failed to produce the same in the Court and exhibited. (VII) The letter of accused No. 1 forwarding forged mark sheet and certificate along with other paper was not produced in the Court and exhibited." 13. It is on the aforesaid grounds, the learned Trial Court has acquitted the accused persons, although the fact of the matter is that because of the alleged forgery committed by the accused No. 2, his service has already been terminated. As regards the accused No. 2, it is submitted that pursuant to placing him under suspension followed by departmental proceeding, he has been reverted to the post of Assistant Teacher from the higher rank of Headmaster. Such course of action is pursuant to departmental proceeding and not because of any criminal proceeding. 14. While Mr. B. Chakraborty, learned counsel for the petitioner referring to the provision of Section 165 of the Evidence Act and Section 386 CrPC has submitted that the learned Trial Court committed manifest error of law in acquitting the accused persons who were involved in a big racket of forging educational qualification certificates and mark sheets. Mr. B.M. Choudhury, learned counsel representing the accused persons submits that this Court exercising revisional jurisdiction cannot re-appreciate the evidence on record. He further submits that the scope and ambit of Section 401 CrPC towards exercising revisional jurisdiction being very limited, the impugned judgment of acquittal is required to be sustained. Mr. B.M. Choudhury, learned counsel representing the accused persons submits that this Court exercising revisional jurisdiction cannot re-appreciate the evidence on record. He further submits that the scope and ambit of Section 401 CrPC towards exercising revisional jurisdiction being very limited, the impugned judgment of acquittal is required to be sustained. In this connection he has placed reliance on the decision of the Apex Court reported in (2013) 14 SCC 207 (Venkatesan v. Rani & Anr.), in which it has been held thus: "The above consideration would go to show that the revisional jurisdiction of the High Courts while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where the Trial Court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice. Re-appreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code. Needless to say, if within the limited parameters, interference of the High Court is justified the only course of action that can be adopted is to order a re-trial after setting aside the acquittal. As the language of Section 401 of the Code makes it amply clear there is no power vested in the High Court to convert a finding of acquittal into one of conviction." 15. There is no dispute that this Court exercising its revisional jurisdiction while examining an order of acquittal is to proceed in a narrow campus. This jurisdiction is to be exercised only in cases where Trial Court had committed a manifest error of law or procedural irregularity or when it overlooked and ignored the relevant and material evidence causing miscarriage of justice. 16. In the instant case, we are concerned with the alleged forgery pertaining to educational documents and documents pertaining to educational institution allegedly committed by the two accused persons. In the FIR/complaint lodged against them the request made was to unearth the racket allegedly involved in forging such documents. The allegations against the accused persons are grave and serious in nature and if found proved, definitely will have serious impact on the basic foundation of the educational institution, which are established for the purpose of imparting quality education for shaping the students. 17. The allegations against the accused persons are grave and serious in nature and if found proved, definitely will have serious impact on the basic foundation of the educational institution, which are established for the purpose of imparting quality education for shaping the students. 17. The learned Trial Court has acquitted the accused persons on the aforementioned grounds. While doing so, it doubted the veracity or otherwise of Ext.-9, 10 and 11 documents unmindful of the fact that those documents were not put to any challenge by the accused persons. This is coupled with the fact that PW-8 i.e. the I/O in his evidence clearly proved the Ext.-6 i.e. seizure list through which the proceeding book of the relevant year was recovered from the accused No. 1. The accused No. 2 was shown to have been appointed as honorary teacher in 1991 when he was not even qualified for such appointment. This seizure list was not put to any challenge by the accused. 18. Above apart, the learned Trial Court committed manifest error of law in holding that there was inordinate and unexplained delay in lodging the complaint. Section 468 CrPC provides bar of taking cognizance after lapse of the period of limitation. It does not provide any time limit for the prosecution for an offence punishable beyond three years. In the instant case, the charges that were leveled against the accused persons are punishable with the sentence beyond three years and upto 7 years. If there was any doubt in respect of veracity or otherwise of Ext.-9, 10 and 11, the learned Trial Court was within its jurisdiction and competence to order for discovering or to obtain proper proof of relevant facts. 19. At this stage, Mr. B.M. Choudhury, learned counsel representing the accused persons referring to Section 167 of the Indian Evidence Act submits that even if there was any wrong appreciation of the evidence and/or recording of the evidence on the part of the learned Trial Court, the same cannot be a ground towards exercising revisional jurisdiction in absence of any evidence towards convicting the accused persons independent of the said evidence. On this, Mr. On this, Mr. B. Chakraborty, learned counsel representing the petitioner submits that when prosecution had succeeded through its evidence coupled with the fact that the Ext.-9, 10 and 11 and Ext.-6 were never put to any challenge, there is manifest error of law committed by the learned Trial Court in acquitting the accused persons. 20. The fact of the matter is that there was allegation of committing forgery by the accused persons. Such forgery not only confined to alleged forging of documents pertaining to the particular educational institution towards appointing the accused No. 2, but such forgery also pertaining to educational qualification certificate and mark sheet. The prosecution did exhibit the communications through which the clarification furnished by the SEBA clearly testifying that there was forgery in respect of documents pertaining to educational qualification of the accused No. 2. In such circumstances, I am of the considered opinion that the learned Trial Court committed manifest error of law and procedure, coupled with the fact that it overlooked the relevant materials eventually resulting in miscarriage of justice. 21. As per the provision of Section 401 CrPC, this Court exercising revisional jurisdiction may in its discretion exercise any of the powers conferred on a Court of Appeal by Section 386, 389, 390 and 391 or on a Court of Session by Section 307. Under Section 386 CrPC it may order for retrial. Accordingly, this revision petition is allowed by setting aside the impugned judgment of acquittal dated 27.1.2006 of the learned Chief Judicial Magistrate, Morigaon in GR Case No. 630/2001. The matter shall stand remitted back to the learned Trial Court for retrial in accordance with law. Let the retrial be completed as expeditiously as possible. Registry shall send back the LCR along with a copy of this judgment and order.