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2020 DIGILAW 582 (JK)

Prem Nath v. State of J&K

2020-11-10

SANJAY DHAR

body2020
Judgment Sanjay Dhar, J.—The instant appeal is directed against the judgment dated 21.02.2012 passed by the learned Additional Sessions Judge, Udhampur whereby the appellant/accused has been convicted for the commission of offence under Section 471 RPC and sentenced to undergo rigorous imprisonment of one month. 2. The facts leading to the filing of instant appeal are that the appellant/accused, who was working as a Roller Attendant in the Mechanical Engineering Division, Udhampur on daily wage basis, came to be regularized as a permanent employee of the said Department. At that time, he produced a school leaving certificate issued by the Government Middle School, Garnai showing his date of birth as 25.07.1955 which came to be reflected in his service book. On 12.09.2005, PW-4 Bhagwan Singh, cousin brother of the appellant/accused, filed a written complaint before the Deputy Commissioner, Udhampur alleging therein that the date of birth of the appellant/accused is 20.04.1944 and that the appellant/accused should have since retired from the Government service. On the basis of the said complaint, a preliminary enquiry was conducted by the Police of Police Station, Rehmbal and after conclusion of the said preliminary enquiry, FIR No. 57/2006 for the offences under Sections 420/467/468/471 RPC was registered with Police Station, Udhampur. 3. After investigation of the case, it was found that the appellant/accused and one Bodh Raj had, with a common intention, prepared a false document i.e school leaving certificate depicting the date of birth of the appellant/accused as 25.07.1955. However, accused Bodh Raj against whom offences under Sections 467/468 RPC were found established during the investigation of the case, passed away prior to the presentation of the charge sheet. Accordingly, the charge sheet came to be filed only against the appellant/accused herein. 4. On 13.11.2006, the learned trial Court framed the charges for offences under Sections 467/468/471 read with Section 120-B RPC against the appellant/accused, who pleaded not guilty to the charges. The prosecution examined as many as 16 witnesses to prove the charges against the appellant/accused. After completion of the prosecution evidence, statement of the appellant/accused under Section 342 of J&K Code of Criminal Procedure was recorded. In his statement, the appellant/accused claimed that the statements of the prosecution witnesses are false and that he had not produced any forged document before the concerned Authority. The appellant/accused, however, did not lead any evidence in defence. 5. After completion of the prosecution evidence, statement of the appellant/accused under Section 342 of J&K Code of Criminal Procedure was recorded. In his statement, the appellant/accused claimed that the statements of the prosecution witnesses are false and that he had not produced any forged document before the concerned Authority. The appellant/accused, however, did not lead any evidence in defence. 5. The learned Trial Court vide the impugned judgment after considering the evidence on record, framed three points for determination, which are reproduced hereunder: (a) “Whether the accused Prem Nath along with accused Bodh Raj (dead) with common intention made a false document of school leaving certificate of the accused Prem Nath showing his date of birth as 25.07.1955 with intent to cheat. (b) Whether the accused Prem Nath used the aforesaid forged document fraudulently or dishonestly as genuine with knowledge or belief that the said document is a forged one. (c) What offence if any, the accused has committed”. 6. Regarding point (a), the learned trial Court came to the conclusion that the prosecution has failed to prove that the appellant/accused was responsible for making the false document. With regard to point (b), the learned trial Court, while observing that the school leaving certificate, on the basis of which, date of birth of the appellant/accused was recorded as 25.07.1955 in his service record, is a forged document, held that on the basis of this forged document, the appellant/accused was regularized as a permanent employee and, as such, the use of the said forged document stands proved. The learned trial Court further observed that there is no direct evidence on record to suggest that it is the appellant/accused, who produced the said forged document before the concerned Authority, but went on to hold that the circumstances on record do establish that it is the appellant/accused, who produced the forged document i.e. school leaving certificate before his employer dishonestly. On the basis of findings on point (b), the learned trial Court, while returning findings on point (c), concluded that the appellant/accused deserves to be acquitted of the commission of offences under Section 467/468 RPC, but is liable to be convicted for the offence under Section 471 RPC. 7. On the basis of findings on point (b), the learned trial Court, while returning findings on point (c), concluded that the appellant/accused deserves to be acquitted of the commission of offences under Section 467/468 RPC, but is liable to be convicted for the offence under Section 471 RPC. 7. The appellant/accused through the medium of instant appeal has challenged the aforesaid findings of the trial Court, particularly on points (b) & (c) on the grounds that there was no evidence on record before the trial Court to show that there was fraudulent or dishonest use of the document in question; that there was no evidence on record before the trial Court to come to the conclusion that the subject school leaving certificate was a forged document; that there was no evidence on record to show that the alleged forged document was made or procured by the appellant/accused; that the prosecution in the instant case has failed to prove the ingredients of offence under Section 471 RPC; that once the appellant/accused was acquitted of the offences under Sections 467/468 RPC, it was not open to the trial Court to convict him for offence under Section 471 RPC; and that the impugned judgment is legally not sustainable. 8. I have heard learned counsel for the parties and I have also gone through the impugned judgment, grounds of the appeal and the evidence led by the prosecution before the trial Court. 9. During the course of arguments, the main contention that was urged by learned counsel for the appellant/accused is that the learned trial Court vide the impugned judgment, had categorically returned a finding that there was no evidence on record to establish that the school leaving certificate in question was forged by the appellant/accused and in the backdrop of the said finding, it was not open to the trial Court to convict the appellant/accused for offence under Section 471 RPC. According to the learned counsel, in order to bring home the guilt of the accused for the commission of offence under Section 471 RPC, it was incumbent upon the prosecution to establish that it is the appellant/accused, who had prepared the forged document. In order to support his contention, the learned counsel has placed reliance on the judgment of the Kerala High Court in the case titled Mani Lal vs. State of Kerala, 1998 CriLJ 3785. 10. In order to support his contention, the learned counsel has placed reliance on the judgment of the Kerala High Court in the case titled Mani Lal vs. State of Kerala, 1998 CriLJ 3785. 10. In the instant case, it is not in dispute that the prosecution has been unable to establish as to who had forged the document which is the subject matter of instant case. In fact, the said finding of the trial Court is not under challenge before this Court, which, in other words, means that it has not been proved that the appellant/accused is the person who had forged the document in question. The question that falls for determination is whether or not a person who is not responsible for forging a document can be convicted for the offence under Section 471 RPC. To seek answer to this question, we need to notice the provisions contained under Section 471 RPC, which reads as under: “Section 471- Using as genuine a forged document or electronic record-Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document shall be punished in the same manner as if he had forged such document or electronic record.” 11. A perusal of the aforesaid provision reveals that the gist of the said offence is fraudulent or dishonest use as genuine of a document which the user knows or has reason to believe to be a forged document. Section 471 IPC which is in pari materia with Section 471 RPC came up for consideration before the Supreme Court in the case titled A.S. Krishanan vs. State of Kerala, (2004) 11 SCC 576 . Para 8 of the said judgment is relevant to the context and the same is reproduced as under: “8. The essential ingredients of Section 471 are (i) fraudulent or dishonest use of document as genuine (ii) knowledge or reasonable belief on the part of person using the document that it is a forged one. Section 471 is intended to apply to persons other than forger himself, but the forger himself is not excluded from the operation of the Section. The essential ingredients of Section 471 are (i) fraudulent or dishonest use of document as genuine (ii) knowledge or reasonable belief on the part of person using the document that it is a forged one. Section 471 is intended to apply to persons other than forger himself, but the forger himself is not excluded from the operation of the Section. To attract Section 471, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must of necessity be convicted, before the person using the forged document, knowing it to be a forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one. The act or acts which constitute the commission of the offence of forgery are quite different from the act of making use of a forged document. The expression ‘fraudulently and dishonestly’ are defined in Sections 25 and 24 IPC respectively. For an offence under Section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated by Section 471 must be voluntary one. For sustaining conviction under Section 471 it is necessary for the prosecution to prove that accused knew or had reason to believe that the document to be a forged one. Whether the accused knew or had reason to believe the document in question to be a forged has to be adjudicated on the basis of materials and the finding recorded in that regard is essentially factual”. 12. From what has been discussed by the Supreme Court in the afore quoted judgment, it is clear that in order to hold a person guilty of offence under Section 471 RPC, it is not necessary that the said person must have forged the document himself. Therefore, the contention of learned counsel for the appellant/accused that because the appellant/accused in the instant case has been acquitted of the charge of forgery by the learned trial Court, as such, he is automatically entitled to acquittal of the charge for offence under Section 471 RPC, is without any merit. However, the matter does not rest here. Therefore, the contention of learned counsel for the appellant/accused that because the appellant/accused in the instant case has been acquitted of the charge of forgery by the learned trial Court, as such, he is automatically entitled to acquittal of the charge for offence under Section 471 RPC, is without any merit. However, the matter does not rest here. In order to convict a person for offence under Section 471 RPC, the proof of forgery by the said person may not be necessary, but it is incumbent upon the prosecution to establish by leading cogent evidence that the said person knew or had reason to believe that the document produced by him was a forged one. Now, we need to examine whether there is any evidence on record to show that the appellant/accused knew or had reason to believe that the school leaving certificate was a forged document. 13. According to the learned trial Court, in the instant case, there is no direct evidence regarding fraudulent or dishonest use of forged school leaving certificate as genuine by the appellant/accused. The learned trial Court has, however, noted in the impugned judgment that the following circumstances have been established by the prosecution against the appellant/accused: (a) That the accused Prem Nath was appointed as daily wager in Mechanical Division Reasi in the year 1979, who got regularized as permanent employee in the year 1989; (b) That the service book maintained by the employer of the accused reveals the date of birth of the accused as 25.07.1955; (c) That the date of birth of the accused in the service book as 25.07.1955 has been reflected on the basis of school leaving certificate issued by Government Middle School Garnai on 25.04.1982 which too has been seized by the police along with service book from the office of the accused and both the seizures have been duly proved; and (d) That as per the record of the school leaving certificate of the said school, no such certificate has been issued from Government Middle School Garnai. 14. 14. After holding that the aforesaid circumstances stand established from the evidence led by the prosecution, the learned trial Court has, on the basis of aforesaid circumstances, concluded that a chain of events has been established from which there is no escape from the conclusion within all human probability that it is the appellant/accused who had produced the forged school leaving certificate in his office, dishonestly and used the forged document as genuine. 15. The question arises whether, on the basis of the circumstances, which, as per the learned trial Court stand established from the evidence on record, it can be concluded that the appellant/accused had knowledge or had reason to believe that the school leaving certificate in question was a forged document. The expressions ‘knowledge’ and ‘reason to believe’ have been explained by the Supreme Court in the case of A.S.Krishnan (supra) in the following manner: “Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of “intention” or “knowledge” or “reason to believe”. We are now concerned with the expressions “knowledge” and “reason to believe”. “Knowledge” is an awareness on the part of the person concerned indicating his state of mind. “Reason to believe” is another facet of the state of mind. “Reason to believe” is not the same thing as “suspicion” or “doubt” and mere seeing also cannot be equated to believing. “Reason to believe” is a higher level of state of mine. Likewise “knowledge” will be slightly on higher plane than “reason to believe”. A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. Section 26 IPC explains the meaning of the words “reason to believe” thus: 26. - “Reason to believe”: A person is said to have ‘reason to believe’ a thing, if he has sufficient cause to believe that thing but not otherwise.” In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by 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 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.” 16. In the instant case, what is primarily established from the evidence on record is that the appellant/accused at the time when his services were regularized produced before his employer the school leaving certificate purported to have been issued by the Government Middle School, Garnai. It is also established that on the basis of said certificate the date of birth of appellant was recorded as 25.07.1955. It is further established that the certificate in question is a forged one as the issuance of the same does not find mention in the records of the concerned School. The question arises as to whether from these established circumstances, it can be concluded that the appellant/accused had knowledge or reason to believe that the document in question was forged. 17. In the instant case, there is evidence on record in the form of cross-examination of PW Isher Dass, the I/O of the instant case to show that the forged school leaving certificate was issued by the co-accused Bodh Raj, who was working as Master in the Middle School Garnai. He has stated that the said Bodh Raj remained posted as Master in the said School on two occasions. This means that the appellant/accused had approached the proper authority for obtaining his birth certificate. The certificate in question bears the seal and signatures of the competent authority and it also bears the signatures of the checking official. It is not a case where the appellant/accused had obtained the forged certificate from a person or authority who had nothing to do with the concerned school. In view these circumstances, it cannot be stated that the appellant/accused had either knowledge or had reason to believe that the document in question is a forged one. 18. There is another circumstance which needs to be taken note of. During the investigation of the instant case, the Investigating Agency has seized the documents from the Government Middle School, Garnai, according to which, the date of birth of the appellant/accused is 20.04.1944. 18. There is another circumstance which needs to be taken note of. During the investigation of the instant case, the Investigating Agency has seized the documents from the Government Middle School, Garnai, according to which, the date of birth of the appellant/accused is 20.04.1944. However, a closer look at these documents shows that the entry at S.No.399 of the Admission Register of the school in question reflects the name of one Prem Nath son of Amroo resident of Ladayala Garnai, whereas the name of appellant is Prem Nath son of Amar Chand resident of Malhar. No evidence has been led by the prosecution to show that the appellant/accused and the person figuring at S.No.399 of admission register of Government Middle School Garnai is one and the same person. If the prosecution would have succeeded in showing that the actual date of birth of the appellant/accused is 20.04.1944, then the situation would have been different. In that case, one could impute the knowledge of forgery of the certificate in question to the appellant/accused because a person of ordinary prudence is expected to know, if not the date and month, but at least the probable year of his birth. Since there is a disparity of more than eleven years in the date of birth recorded in the forged certificate and the date of birth recorded in the admission register, it could be presumed that the appellant/accused had reason to believe that the document which was handed over to him by the co-accused Bodh Raj is a forged one, which is not the case over here as it is not proved that the entry in the Admission Register pertains to the appellant/accused. Thus, there is no evidence on record to even remotely suggest that the appellant/accused had either knowledge or reason to believe that the document of school leaving certificate given to him by the co-accused Bodh Raj, who was working as Master in the concerned School, is a forged document. Therefore, it cannot be stated that the appellant/accused had either knowledge or reason to believe that the said document was forged one. 19. Therefore, it cannot be stated that the appellant/accused had either knowledge or reason to believe that the said document was forged one. 19. Though from the evidence on record, it is established that the document in question i.e school leaving certificate reflecting the date of birth of appellant as 25.07.1955 is a forged one and it has also been established from the circumstances on record that the said document was used by the appellant/accused for getting the date of birth recorded in his service record, yet, there is no evidence on record to establish that the appellant/accused had either the knowledge or reason to believe that the said document was forged. Therefore, all the ingredients of offence under Section 471 RPC are not established in this case. 20. The learned trial Court has, without there being any evidence on record to show that the appellant had either knowledge or reason to believe that the document in question was a forged one, proceeded to conclude that the appellant/accused has dishonestly used the forged document as genuine, thereby landing itself into an error. The impugned judgment of conviction and sentence, therefore, cannot be sustained and the same deserves to be set aside. 21. For the foregoing reasons, the appeal is allowed and the impugned judgment of conviction and sentence dated 21.02.2012, is set aside. The appellant is acquitted of the charges. His bail and surety bonds shall stand discharged. Record of the trial Court along with copy of this judgment be sent to the trial Court.