The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV NO.334 OF 2023 Binay Kumar Patel …. Petitioner Mr. P.K. Khuntia, Advocate State of Odisha -versus- …. Opposite Party Mr.S.K. Nayak, AGA. CORAM: MR. JUSTICE D.DASH Order No. 03. 1. This matter is taken up through hybrids arrangement
Decision
ORDER 22.08.2023 (virtual/ physical) mode. 2. The Petitioner by filing this Revision has called in question the legality and propriety of an order dated 18.04.2023 passed by the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundargarh in G.R. Case No.491 of 2005. 3. The Petitioner being the accused in the above noted case had filed an application under section-239 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.’) praying for his discharge and not proceeding further against him in the case. The Trial Court by the impugned order has rejected the application in holding that there is prima facie ground to presume that the Petitioner (accused) had committed offences for which he has been asked by the Investigating Agency to face the trial in the Court of law. 4. Brief facts necessary for the purpose are as under:- On 13.09.2005, the Principal of District Institute of Education and Training, Sundargarh sent a written report to the Page 1 of 6 // 2 // Officer-In-Charge of Sundargarh Town Police Station stating therein that this Petitioner (accused) and two others who were then in the second year of C.T. course had submitted forged Certificates and Mark-Sheets for their admission for the session, 2004-05. In this connection, the Informant had enclosed the orders of the Director, Teachers Education and SCERT, Odisha, Bhubaneswar cancelling the provisional admission of the Petitioner (accused) as the High School Examination (HSE) Certificate and Mark-Sheet which the Petitioner (accused) had submitted, on verification were found to be forged being not so issued by the Authority. 5. Upon receipt of the said information in writing from the Informant, the OIC treated the same as F.I.R. and registering the case took up investigation. On completion of investigation, Final Form was submitted placing the Petitioner (accused) to face the Trial for commission of offences under section-468/471 of the Indian Penal Code (for short, ‘the IPC’). 6. On receipt of the said Final Form, the learned Magistrate having taken the cognizance of the said offences; that order dated 19.06.2007 was challenged by the Petitioner (accused) by carrying an application in invoking the inherent power of this Court under section-482 of the Cr.P.C. in CRLMC No.2550 of 2008. That move failed as the matter stood dismissed by the order passed by this Court on 17.04.2017. The learned Magistrate then proceeding further when has refused to accept the prayer of the Petitioner (accused) for his discharge from the case, the present Revision has been preferred. Page 2 of 6 // 3 // 7. Learned Counsel for the Petitioner (accused) submitted that the F.I.R. and the charge-sheet being read in entirety would reveal no allegation as regards commission of the alleged offences by this the Petitioner (accused). It was submitted that it is simply stated that this Petitioner (accused) had produced the HSE Certificate and Mark-Sheet for the purpose of his admission in the relevant course which upon verification have been found to have not been issued by the Authority purported to have issued the same. He further submitted that the certificate and mark-sheet were issued when the Petitioner was a minor and therefore, the question of he having forged the document does not arise and what he had so received, he having submitted, no prima facie case under section-468/471 of the IPC surfaces against him to frame charge. He, therefore, submitted that there being total absence of fraudulent or dishonest intention, the learned Trial Court committed grave error by arriving at a conclusion that prima facie ground for presuming the Petitioner (accused) to have committed the said offences stands. In this connection, he has cited the decision of this Court in case of Sukanti Choudhury Vrs. State of Odisha; 2013 (I) ILR CUT 910. 8. Learned Counsel for the State submitted that it being the admitted position that the Petitioner (accused) had submitted the HSE Certificate and Mark-Sheet for securing his admission in the C.T. course; when those upon verification at the proper quarter have not been found to be genuine being not issued by the Authority purported to have issued the same, the Trial Court is wholly right in repelling the move for discharge of the Page 3 of 6 // 4 // Petitioner (accused), keeping the contentions raised by the Petitioner to be answered in the Trial upon appreciation of the evidence as would be tendered. 9. Keeping in view the submissions made, I have carefully read the impugned order. I have also perused the F.I.R. and other documents collected in course of investigation as placed by the Petitioner (accused) under Annexures. 10. Provision contained in section-468 of the IPC concerns with the punishment for forgery for the purpose of cheating and the ingredients constituting the offence are:- a) that document is forged; b) that accused forged the document; and c) that accused forged the document intending that the forged document would be used for the purpose of cheating. Forgery is defined in section-463 of the IPC which says that whoever makes any false documents or false electronic record or part of the 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, commits forgery. The followings are the essential requirements for constituting the offence under section-471 of the IPC:- a) that the document is a forged one; b) that the accused used the document as genuine; c) that the accused knew or had reason to believe that it was a forged document; and Page 4 of 6 // 5 // d) that the accused used it fraudulently or dishonestly knowing or having reason to believe that it was a forged document. 11. In the given case, the Certificate and Mark-Sheet submitted by the Petitioner for his admission to pursue the C.T. course in the Institution were in his possession and custody and he has so submitted for his admission in C.T. course with the Authority concerned. These documents are absolutely essential for the said admission and the admission is dependent upon verification and acceptance of the correctness of the contents of these documents and their genuinenity. Therefore, when these documents concerning the Petitioner (accused) have been found to be ingenuine, not issued by the Authority purported to have so issued as it reveals from the documents themselves, initial presumption stands that the Petitioner (accused) being in possession / custody of said documents which have been found to be forged either had forged the same or had the knowledge that those were not genuine and forged or having the reason to so believe, had pressed those into service for the purpose of his admission in the said course. This initial presumption however may stand rebutted in the trial. The explanation as is now given that the Petitioner (accused) being minor, when said Certificate and Mark-Sheet had been issued had no knowledge of those being not genuine nor had reason to so believe is not acceptable at this stage of framing of the charge. It cannot also be said at this stage that those documents being received by the Petitioner (accused) during the time when he was minor, he had nothing to do with the same. Page 5 of 6 // 6 // The above discussed available materials on record being tested in the touchstone of the settled legal principles as to the considerations for framing the charge; this Court finds no such illegality or impropriety in the order impugned in this Revision; whereby the Court below has rejected the application under section-239 of the Cr.P.C. filed by the Petitioner for his discharge. For all the forging discussion, the decision in case of Sukanti Choudhury (supra) thus does not come to the rescue of the Petitioner (accused). 12. In the result, the Revision stands dismissed. It is however, needless to observe that nothing as expressed hereinabove would have any influence in the mind of the Trial Court in proceeding with the trial and concluding the same in accordance with law and it would be open to the Petitioner to raise all such contentions as are being now advanced for their consideration in proper perspective. Issue urgent certified copy as per rules. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 24-Aug-2023 13:48:17 (D. Dash), Judge. Page 6 of 6