Md. Gulam Rasool, s/o Moin Ullah Kazi, r/o village Sahpur Beldiha, PO v. 1. The State of Jharkhand 2. Md. Sarful Hoda, s/o Israil Kazi, r/o village
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Acquittal Appeal No. 19 of 2023 Md. Gulam Rasool, s/o Moin Ullah Kazi, r/o village Sahpur Beldiha, PO- ... … Appellant Beldiha, PS-Mahgama, District-Godda Versus 1. The State of Jharkhand 2. Md. Sarful Hoda, s/o Israil Kazi, r/o village Sahpur Beldiha, PO-Beldiha, PS-Mahagama, District-Godda … ... Opposite Parties CORAM: HON’BLE THE ACTING CHIEF JUSTICE For the Appellant For the State
Legal Reasoning
: Mr. Abhijeet Kumar, Advocate : Ms. Nehala Sharmin, Spl. PP -------- Order No. 9/Dated: 19th April 2024 This acquittal appeal has been filed to challenge the judgment in Criminal Appeal No. 12 of 2015. 2. In the said criminal appeal, the judgment of conviction of the opposite party no. 2 herein in G.R No. 415 of 2000/T.R. No. 39 of 2015 has been set aside by the lower appellate Court and the opposite party no.2 has been acquitted of the charge under sections 465, 468 and 471 of the Indian Penal Code. 3. In PCR Case No. 74 of 2000, the complainant made allegations against the opposite party no.2 who was former Secretary of Madarsa Asgariya at village Sahpur Beldiha and the Head Maulvi of syphoning of Rs. 37572 /- and the salary of his wife for the months from October 1993 – September 1994 amounting to Rs.12558/-. In the trial, six witnesses were examined but PW4 Md. Moinuddin, PW5 Md. Sahjahan and PW6 Md. Fakruddin were declared hostile. The informant tendered evidence as PW3 and reiterated his allegations made in the complaint case which was later transferred to the police for investigation and Mahagama PS Case No. 37 of 2000 was lodged. In his defence, the opposite party no.2 examined DW1 Md. Sarful Hoda and DW2 Md. Amjad Hussain. 1 Acquittal Appeal No. 19 of 2023 4. The trial Judge held as under: “11. On careful perusing the evidences and materials available on record, I find that prosecution has examined altogether six witnesses in support of the case, to prove the above alleged charges against the above accused, but P.W.-4, 5 and 6 were declared hostile by the prosecution. I further find that P.W.-1, 2 and 3 who are the aggrieved persons, informant and his wife have fully supported the case as alleged on point of offences U/s- 465, 468, 471 of I.P.C. I find that this case was registered on the basis of complaint case, and in that very complaint only three witnesses were cited by the informant, including P.W.1 and 2, but in the charge sheet other P.W.s made witness by the I.O., and only they were hostile in the present case, and it is not the latches on the part of the prosecution. I find that in the complaint only Asma Begam Suleman and Md. Shamim, were made witness, but in the charge sheet, Md. Shamim was not made witness. I further find that date of occurrence, place of occurrence, manner of occurrence, all have been fully proved and established by the version of P.W.-1, P.W.-2 and P.W.-3, on point of offences U/s 465, 468, 471 of I.P.C. I find that due to being hostile of P.W.-4, 5 and 6 the evidentiary value of P.W.-1, 2 and 3 who are the informant cum aggrieved persons can not be came effective and light weight, because these are the aggrieved persons. I further find that opinion of the expert in this regard also has been exhibited in this case which also corroborates the case of the prosecution on point of offences U/s-465, 468, 471 of I.P.C. I find that though expert was not examined in this case but his report is available on record for perusal and exhibited which can be taken into consideration or just and proper decision of the case.” 5. The opposite party no.2 was convicted and sentenced to SI for one year with fine of Rs.3000/- each on each count under sections 465, 468 and 471 of the Indian Penal Code. 6. In Criminal Appeal No. 12 of 2015, the lower appellate Court scrutinized the testimony of PW2 and PW3 as under: “7. I have minutely examined the evidence of P.W.2 and 3 and also gone through the evidence of D.W.1 and 2 who have laid down the manner in which the payment is being made. From perusal of the statement of D.W.1 and 2 where D.W.2 has stated that he was a teacher and also was posed during the period 1994. He disclosed the manner that the bill was prepared by Head Maulvi who put his signature in the said bill and the same is counter signed by the secretary. After that the bill is sent to the DEO, which is clear from the office of DEO and the draft is prepared in the name of Head Maulvi and the said Head Maulvi withdraw the amount from the bank and deposited in the account of the teachers open in the bank. The work of the secretary is only to counter sign on the bill, except that the secretary has no role. This fact has been admitted by P.W.2 and 3 who are the teacher, so as far as the manner regarding the payment of the bill is concerned that has been categorically stated by P.W.2 and 3 and the same is supported by D.W.1 and 2. From this part of evidence it is clear that the Secretary has to only counter sign the bill which was sent to the Office of DEO, except that the secretary has no role. However I have also gone through the documentary evidence adduced in this case. The bill registered has been proved by the prosecution as Ext.-3 where the signature of P.W.2 Asma Begam has been made. 2 Acquittal Appeal No. 19 of 2023 Prosecution has tried to prove that the said signature has not been made by P.W.2 which has been proved by the specimen signature taken in the court. The signature of Asma Begam has been done as Ext. A. The Ext.-a was compared with Ext.-3 and the opinion of the expert has been filed vide H.W.72/2001. This opinion which was obtained has not been proved by the person who has given this opinion. In absence of the examination of the person who has given the opinion in the court the same can not be relied upon. This view has also been expressed by the Hon'ble Supreme Court in 2000 (3) Eastern Criminal Cases 982 SC State of Maharashtra Vrs. Damu Gopi Nath Shinde and others. The Hon'ble Court has observed in paragraph-41 "Exh.64 is only the opinion of the Asstt. State examiner of Documents. From that description alone, it cannot be gathered whether his office would fall within the purview of Section 293 of the Code. Hence, without examining the expert as witness in Court no reliance can be placed on Exh.64 alone." In the present case also the expert has not been examined. So opinion can not be relied by this court that the signature of the informant on Ext.-3 at point -D is forged one. The prosecution has failed to bring an evidence which can proved without shadow of reasonable doubt that the signature of the P.W.2 and 3 on the salary bill is forged one. Even otherwise by merely declaring the said forgery as alleged does not constitute the offence u/s- 465, 468 and 471 of the I.P.C. The section 465 of the I.P.C states as under "Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." Section 468 I.P.C is re-produce below: "Whoever commits forgery, Intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." In both sections one of the ingredients is that whoever commits forgery. This denotes that the person who commits forgery. In the present case the evidence has been brought by the prosecution that the signature of P.W.2 and P.W.3 is not done by the P.W.2 and P.W.3 on the Bill Register i.e Ext.3. This has also not been proved by the prosecution regarding specific signature by bringing the expert to examine him in the court. The prosecution has failed to bring evidence on the record that either the head Maulvi or the present petitioner committed the said forgery or put the signature of the informant in his hand writing. In the said circumstances prosecution has miserably failed to brought an evidence on the record that petitioner in conspiracy with head Maulvi have committed forgery of the document Ext.-3 or they have forged any document in this case. The role of present petitioner has only been defined that he has only counter signed on the bail, except that no role has been assigned played by this petitioner. As far as illegally withdrawing the money is concerned that has been alleged to be done if at all by the Head Maulvi. The prosecution has also not brought evidence that the money was deposited in the forged account open by the Head Maulvi or the present petitioner. Even there is no evidence on the record that the alleged forged account bearing No.-10461 is opened in whose name or who has opened the said account. Thus the prosecution has miserably failed to prove charged levelled against the petitioner in absence of above evidence without shadow of reasonable doubt. The conviction of the petitioner on above evidence is not safe. No offence have been proved. The petitioner is given benefit of doubt. The petitioner/convict Md. Sarful Hoda is acquitted. The judgment and order on sentence passed by the learned S.D.J.M, Godda in connection with Mahagama P.S Case No. 37/2000, G.R. No.415/2000, T.R. No. 39/2015 is hereby set aside. 3 Acquittal Appeal No. 19 of 2023
Decision
The appeal is allowed. Bail bond and surety bond of the accused is discharged. File be consigned to record room. The trial court record may be deposited in record room as per law.” 7. Holding that the role of the opposite party no.2 in the whole transaction was restricted to signing of the bill and no allegation against him was made to have illegally withdrawn the money, the lower appellate Court held that the offence under sections 465, 468 and 471 of the Indian Penal Code is not made out. 8. The offence of forgery as defined under section 463 of the Indian Penal Code provides that making of any forged documents or forged electronic record or part of a document or electronic record with intent to cause damage or injury to the public or to any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud or that fraud may be committed shall amount to forgery. 9. In “Md. Ibrahim v. State of Bihar” (2009) 8 SCC 751 the Hon’ble Supreme Court held as under: “14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories: 1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration. In short, a person is said to have made a “false document”, if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses. …………………………………………………………………………………... 16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually 4 Acquittal Appeal No. 19 of 2023 belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of “false documents”, it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. 17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.” 10. This is well-settled that while dealing with an appeal against the judgment of acquittal the High Court shall bear in mind that the powers under section 378 of the Code of Criminal Procedure shall be exercised only for compelling reasons. In “Sheo Swarup v. King Emperor” AIR 1934 PC 227(2) it has been held that the High Court shall always give proper weightage and consideration to (i) the views of the trial Judge as to the credibility of the witnesses (ii) presumption of innocence in favour of the accused (iii) right of the accused to the benefit of any doubt and (iv) slowness of the appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. In “Tota Singh v. State of Punjab” (1987) 2 SCC 529 the Hon’ble Supreme Court observed that even where the judgment under challenge may seem to be erroneous the High Court normally shall not interfere with the judgment of acquittal. 11. under: In “Tota Singh” the Hon'ble Supreme Court has observed as “6. ...... This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been 5 Acquittal Appeal No. 19 of 2023 possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.” 12. For the forgoing reasons Acquittal Appeal No. 19 of 2023 is dismissed. (Shree Chandrashekhar, A.C.J.) Amit N.A.F.R 6 Acquittal Appeal No. 19 of 2023