JUDGMENT (Prayer: Criminal Revision Case filed under Sections 397 and 401 of Cr.P.C., against the judgment made in C.C.No.384 of 2009 dated 09.01.2017 on the file of Judicial Magistrate, Katpadi which is confirmed in Crl.A.No.4 of 2017 dated 12.07.2019.) 1. The convicted A1 is the Revision Petitioner herein. 2. The respondent-Police filed a final report in Crime No.400 of 2007, Katpadi Police Station, Vellore District and the same was taken as C.C.No.384 of 2009. 3. After trial, A2-Murugesan was acquitted and the first accused Sankar, S/o.Late Subramani Naicker was convicted by the trial Court. The first accused- Sankar is claimed as Murugesan, while the second accused is claimed as Velmurugan. On appeal filed by the first accused, Crl.A.No.4 of 2017 was dismissed. 4. The 1st appellant/1st accused had been convicted and sentenced to undergo Simple Imprisonment for 1 year for each offence and also to pay a fine of Rs.3,000/- for each offence, in default, to undergo Simple Imprisonment for 6 months, for the offences under Sections 468, 471, 420 and 419 C.P.C and it is further ordered that the above sentences shall run concurrently and the detention period of 10 days from 15.09.2009 to 24.09.2009 shall be set off. 2nd accused was found not guilty for the offences under Sections 420 r/w 120 (b), 469 and 471 of I.P.C and he was acquitted under Section 248 (1) of Cr.P.C (Fine amount was paid). 5. The case of the prosecution is that the accused 1 & 2 were brothers and sons of Late.Subramani Naicker. The complainant S.Veerasamy is the elder brother of the accused 1 & 2. The accused and the complainant were having prior enmity in sharing of properties of their father. In order to get a job, the accused 1 & 2 entered into criminal conspiracy of cheating by impersonation as the officers of the Revenue Department and they presented the forged school certificate and used it as a genuine certificate for the purpose of cheating the Government to get a job, thereby, the 1st accused submitted a forged school certificate which stands in the name of 2nd accused, to the Revenue Official and the illegally joined as "Village Menial" (Village Sippanthi) in the office of the Village Administrative Officer at Old Katpadi. On receipt of complaint from the complainant S.Veerasamy, after investigation, the Inspector of Police, Katpadi Police Station filed charge sheet as against the accused 1 and 2 for the offences under Sections 419, 420, 468 and 471 r/w 120 (B) I.P.C. 6. After observing the formalities, the trial has commenced. To prove the case, the prosecution has examined P.W.1 to P.W.16 and Exs.P1 to Ex.P17 were marked. 7. On consideration of both oral and documentary evidence, the trial Court has rendered a judgment of conviction and the first accused, namely, the revision petitioner was convicted for the alleged offences under Sections 420 r/w 120(b), 469 and 471 I.P.C. However, the trial Court had chosen to acquit the 2nd accused on the ground that there is no positive evidence to show that the second accused had a criminal intention and also criminal conspiracy and his name could not be identified with that of the Murugesan and hence the convicted appellant has preferred the appeal. 8. Before the appellate Court, P.W.1/defacto-complainant who is the elder brother of the both accused persons tendered evidence which was taken into consideration. 9. Charge as against the appellant/1st accused was that the de-facto - complainant is the elder brother of both accused persons. The appellant/1st accused was the last son of the couple Subramani and Saradha Ammal. The appellant/1st accused was originally born in 1971 and his name is Sankar. But, the appellant/1st accused, for the purpose of obtaining job, has given false school certificate as if his name Murugesan and his year of birth was 1964. So, the Trial Court has framed charged offences under Sections 419, 420 r/w 120(B)(1), 468 and 471 of I.P.C. After conclusion of trial, the Trial Court convicted him under Sections 468, 471, 420 and 419 I.P.C. 10. The appellate Court, on consideration of the evidence on record, has held that charges are proved and confirmed the conviction. 11. The learned counsel appearing for the revision petitioner/A1 contended that P.W.1-complainant is the eldest brother of the both accused persons and inspite of the best efforts, the family disputes could not be settled for partition. He is an Advocate Clerk under P.W.3 who is an Advocate and P.W.1 was working as an Advocate Clerk, have laid a conspiracy to snatch away the family properties. He gave a false case against the first accused who is a Government servant. He is an Advocate Clerk under P.W.3 who is an Advocate and P.W.1 was working as an Advocate Clerk, have laid a conspiracy to snatch away the family properties. He gave a false case against the first accused who is a Government servant. He had a knowledge and even in 1999, as per Ex.D1, marked through P.W.4, he could contend that since P.W.1 was an Advocate Clerk and by using his connection with the Police Station, he has foisted a false case naming. Sankar as Murugesan; Murugesan is Vermurugan; Murugesan as a Sankar and Velmurugan as Murugesan and there is a delay of more than 8 years in preferring the complaint from the date of the knowledge. Complaint was filed on 26.03.2017. P.W.4, mother of P.W.1 and the accused A1 and A2, had not supported the case of the prosecution. 12. It is the specific case of prosecution that A1 and A2 are the sons of Late.Subramani Naicker. Their younger brother Murugesan''s name has been utilized by the elder brother Sankar and he impersonated himself as Murugesan. 13(a). Admittedly, the mother is the best person to speak about who is the elder son and who is the younger son and the respective names. Even as per the version of P.W.4-mother, there are sisters. For the reasons best known, the Police has not even examined the sister, who was born to the said family, who has to identify the chronological order of the sons and the respective names and hence, I find that non examination of the sister of the all the persons, i.e., P.W.1, A1 and A2 appears to be fatal to the case of the prosecution. (b) The first accused/A1 is projected as an immediate elder brother of A2. A1 claims that he is Murugesan and prosecution says he is Sankar. A2 Murugesan is Velmurugan, however prosecution claims he is Murugesan. The trial Court has rendered a finding that the Police has miserably failed to show that the person who was calling himself as Velmurugan, is Murugesan which assumes significance. 14. The learned Government Advocate (Crl.Side) made submissions in support of the judgment of the Courts below and prayed for confirmation of the same. 15. Ex.P5 dated 06.01.2008, the Legal Heirship Certificate issued to the deceased M.Subramani, which reads as follows:- 16. 14. The learned Government Advocate (Crl.Side) made submissions in support of the judgment of the Courts below and prayed for confirmation of the same. 15. Ex.P5 dated 06.01.2008, the Legal Heirship Certificate issued to the deceased M.Subramani, which reads as follows:- 16. Ex.P5 was issued by Tahsildar-P.W.5 which goes to show that N.Subramani is the father of the all the persons and he died on 02.05.1999. The prosecution projects that the elder brother is Murugesan. As per E.P5 Legal Heirship Certificate issued by complainant revenue official, the elder brother is Velmurugan and hence, I find that ''All is not well'' with the prosecution theory. 17. At this juncture, the suggestive case of the defence assumes significance. 18. The theory of the defence case as projected during the cross examination of P.W.1, P.W.2, P.W.3 and P.W.4 is that there was a civil dispute and family partition between P.W.1 as against the appellant/A1and another brother Velmurugan A2 and the same is pending and P.W.2 has admitted in his evidence stated that he had sold the property to A1 & A2. Further, the Registered Sale Deed dated 25.11.1994, which was marked as Ex.D1 during cross examination of P.W.2, will prove the case of the defence. It further more demonstrate that P.W.s 1 and 2 had the knowledge in the year 1994 itself that the name of the appellant is Sankar @ Murugesan and the name of A2 is Velmurugan and the same fact is also duly corroborated by the evidence of P.W.1 and P.W.2 based on the marriage invitation of the appellant. All the above facts clearly prove that the case of the prosecution is totally false, baseless and it was only for threatening the appellant to get the illegal benefit out of the family property. 19. Yet another point is that the evidence of the Revenue Official namely P.W.11, who is Sub-Registrar, Katpadi is that the birth of childrens will only be mentioned between 1954 and 1966 only, but, the evidence of P.W.1 to P.W.3 reveals that P.W.1 is the eldest son and after him, another 8 persons were born to their parents. If it is true, P.W.11, SRO version is only for two persons and remaining six persons'' date of birth was not registered by her office. If it is true, P.W.11, SRO version is only for two persons and remaining six persons'' date of birth was not registered by her office. In such a case, the conclusion of the Trial Court that the date of birth of the appellant was not connected to the year 1964, is not based on any reliable evidence. 20. At this juncture, it remains to be stated that P.W.2 is the retired Army officer who is party to Sale Deed Ex.D1. While P.W.3 Sreenivasan who is practising as an Advocate, under whom P.W.1 is working as an Advocate Clerk, it is the specific case of the defence that P.W.1 who is working as Advocate Clerk with P.W.3 Advocate who has influence in the Police to file a false case by twisting the name of the family members and spoiled the life of the accused. 21. After perusal of the evidence of P.W.1, P.W.2 and P.W.3, the suggestive case appears to be more probable than the prosecution case. 22. As stated supra, Ex.P5 legal heirship certificate issued by the competent Tahsildar demolishes the case of the prosecution. P.W.2 who is retired Army Officer, has given an evidence that he was unable to read and write the clauses and averments mentioned in Ex.D1, which is the sale deed executed by him in favour of A2, which is not only highly improbable, but it touches upon very credibility of his version for more than one reason, as discussed as under. 23. P.W.2 has executed a sale deed Ex.D1 in favour of A1, wherein A2''s name has been mentioned as Velmurugan and not as Murugesan (as projected by prosecution) and hence this Court finds that vital part of the evidence has not been properly appreciated by both the Courts below, thereby, both the Courts below have come to the wrong and erroneous conclusion. 24(a).P.W.3 is an Advocate and he has supported the evidence of P.W.1, who is none other his own clerk. Admittedly, the Civil Suits filed for partition of the family property between all the parties are pending and hence, I find that it is totally unsafe to rely upon the evidence of P.W.1 and P.W.3. (b) As stated supra, the mother is the best person to speak about the chronological order of the sons and daughters. There is totally 8 persons mentioned in the Legal Heirship Certificate. (b) As stated supra, the mother is the best person to speak about the chronological order of the sons and daughters. There is totally 8 persons mentioned in the Legal Heirship Certificate. However, the prosecution has not produced the date of birth of all the persons, except A1 and A2 and hence, I find that the prosecution has purposely suppressed material fact before the Court. 25. The evidence of Revenue Inspectors, namely P.W.8 to P.W.13 i.e., Tahsildar, Deputy Tahsildar, Revenue Divisional Officer, Sub Registrar and Village Administrative Officer goes to show that A1 has joined the office as Murugesan, not as Sankar. As per the Revenue Records, Murugesan is also called as Sankar and taking advantage of employment P.W.1 as Advocate Clerk wanted to coercer A1 to settle the civil dispute. P.W.3 is the practising Advocate and hence, I am not expressing any opinion, except to say that a false case has been put up by the persons with active connivance the police, which resulted in registration of the complaint. 26. It remains to be stated that the evidence of P.W.6 and P.W.7, the Head Master of Elementary School and High School, clearly proves that in the year 1964, there was no Birth Certificates issued or filed on behalf of the prosecution. 27 (a) Yet another point is that the defacto-complainant, P.W.1 Veerasamy is none other than elder brother of the accused person. The F.I.R was registered on 17.07.2007 as Crime No.400 of 2007. According to the defacto-complainant, the offence took place in the year 1989. It is a specific evidence of P.W.1 that he had knowledge about the offence committed by A1 during the year 1999, as stated supra, the F.I.R was registered on 17.07.2007 and hence, I find there is a delay of 18 years in lodging the complaint and these 18 long years of delay remain unexplained by the prosecution which this Court finds a fatal to the prosecution. b) It is a specific case of the defacto-complainant that the revision petitioner / A1 had committed the offence during the year 1989 which he came to know about in the year 1999 and hence, in any event, there is an unexplained inordinate delay of 10 years from the date of the knowledge and hence, I find that the inordinate delay of 18 years and even 10 years from the knowledge remain unexplained is fatal to the prosecution. c) In view of the discussions in the presiding paragraphs, this Court finds that the best person namely the material witness to speak about the children and their names would be the mother of the children namely P.W.4-Saradha Ammal and the siblings of the accused. 28. It is her specific evidence that he is unable to re-collect any persons. Based upon her evidence, the learned trial Magistrate had rendered a categorical finding that a prosecution has failed to get vital information about the name of her children and their respective date of birth and the details of the schooling. Thus, I find that the prosecution has failed to lead a positive evidence in support of the charge. Besides, non-examination of the sisters of the accused is also fatal to the prosecution. All the prosecution witnesses have categorically spoken about the property dispute between P.W.1/defacto-complainant and the accused person. Since the defacto-complainant was not given the property which he has selecting and aiming at by the accused person. He having been working as Advocate Clerk under P.W.3 who has got influenced with the local Police Station had chosen to file a false complaint that too after a long years of 18 long years. This piece of evidence to the amply demonstrate that there was a previous animosity and motive for Ex.P1 complaint. 29. As discussed supra, the Legal Heir Certificate which is marked as Ex.P5 is shown the name of the accused person as Velmurugan and Sankar alias Murugesan. The trial Court has failed to appreciate these two documents in the proper prospective for the reasons discussed supra. 30. It remains to be stated that though the case has been projected for the offence under Section 120 (b) of C.P.C., both the Courts below have categorically acquitted, both the accused for alleged offence under section 120 (b) of C.P.C. 31. At this juncture, it is a relevant to mention that the case of the prosecution that by using the school certificate of A2, A1 joined the Tamil Nadu Ministerial Service. At this juncture, it is a relevant to mention that the case of the prosecution that by using the school certificate of A2, A1 joined the Tamil Nadu Ministerial Service. It remains to be stated that A1 was joined service as a Village Assistant for which, there is no prescribed qualification and therefore, this Court finds that there is no necessity for A1 to use a certificate of A2 as projected by the prosecution and hence, this Court finds that a false case has been foisted against the petitioner at the instance of P.W.1. Thus, I find that it is a case for Hon''ble acquittal rather than acquittal on benefit of doubt and hence, I have no hesitation to hold that a charges levelled against him against the petitioner are totally false and foist against at the instance of P.W.1 (Advocate Clerk) in conveyance with P.W.3(Advocate) to rack vengeance against A1 and A2 the younger brother of P.W.1 and the conviction and sentence passed by both the Courts below are set aside. For the reasons discussed supra, the revision petitioner/accused stands acquitted to all the charges. 32. In the result, (i) This Criminal Revision Petition is allowed. (ii) The judgment of conviction and sentence passed by the Judicial Magistrate, Katpadi in C.C.No.384 of 2009 dated 09.01.2017 as confirmed by the learned Principal Session Judge, Vellore made in C.A.No.4 of 2017 dated 12.07.2019 is hereby set aside. (iii) Bail bond if any executed by the accused stands discharged. (iv) Fine amount paid if any, shall be refunded to the accused.