R. Renold vs State

M. Sathyanarayanan, J.—The revision petitioner is the sole accused in C.C. No.10 of 2008 on the file of the Court of Judicial Magistrate No.II, (CCIW), Tirunelveli and he stood charged and tried for the commission of the offences under Sections 420, 465, 466, 468 and 471 I.P.C. The trial Court, vide judgment dated 30.07.2010, has acquitted the revision petitioner of the charges for the offences under Sections 420, 465, 466 and 468 I.P.C., but, convicted him for the offence under Section 471 I.P.C and imposed the sentence of simple imprisonment for one year and to pay a fine of Rs.1,000/-, with default sentence of simple imprisonment for three months.

The revision petitioner/accused, aggrieved by the conviction and sentence passed by the trial Court, preferred the appeal in C.A. No. 128 of 2010 on the file of the Court of III Additional Sessions Judge, Tirunelveli and the lower appellate Court, vide judgment dated 21.10.2013, has confirmed the conviction and sentence imposed by the trial Court and dismissed the appeal.

Challenging the legality of the same, the present Criminal Revision Case is filed.

The facts leading to the filing of this revision, briefly narrated, are as follows:

4.1. P.W.1 was the Vice President of Nagercoil Bar Association and on coming to know of the fact that some of the members without properly obtaining the Law degree, got enrolled themselves as Advocates and became members, decided to lodge a complaint based on the resolution passed in the Bar Association and they have also independently verified the certificates of some of the Advocates and having found that no such certificates have been issued by the concerned University, has lodged a complaint to the Superintendent of Police, Nagercoil, as well as to the Inspector of Police, District Crime Branch, on 16.10.1999, to take action against 37 persons and the said complaint was marked as Ex.P.3 and necessary particulars issued by the Assistant Registrar of Bangalore University with regard to some of the members were also handed over to them, marked as Exs.P.4 and P.5-series, respectively.

4.2. P.W.5 was the Inspector of Police and on receipt of the communication from the District Police Office, has registered a case in Cr.No.34 of 1999 and took up the investigation and made a requisition for verifying the certificates of 17 accused and also examined one Premraj (P.W.6). P.W.7, in response to the said communication, had sent a communication, marked as Ex.P.11, stating that the mark sheet, degree certificates and provisional certificates were verified with the concerned Register and found that the certificate issued to the person in Sl.No.11 - the petitioner herein, is a fake one. Subsequently, the case was transferred to the file of CBCID as per the proceedings of the Chief Office, dated 02.03.2001 and P.W.9 took up the investigation on 20.03.2001 and except regarding A-36 and A-37, he called for the particulars from the Bar Council of Tamil Nadu with regard to the degree certificates as well as law degree certificates by giving a requisition dated 15.06.2001 and he received the copies of the same on 27.06.2001 and thereafter, sent a requisition to the Assistant Registrar of Bangalore University, in which, the petitioner has undergone the law degree and also to the Controller of Examinations of Madurai Kamaraj University, the Registrar of Manonmaniam Sundaranar University, the Controller of Examinations of Annamalai University and the Registrar of Banaras University at Varanasi and also sent a reminder to the Vice Chancellor of Bangalore University on 28.10.2001 and 30.10.2001 and he received the report from the said University on 17.11.2001, stating that the certificate given to the petitioner is a fake one.

4.3. P.W.10 - Inspector of Police, CBCID, continued the investigation and after receiving the communication from the above said Universities, made a further request for examining the genuineness of the certificates of other accused.

4.4. P.W.11 who took over the investigation from P.W.10, has completed the investigation and filed the individual charge sheets on 31.10.2002, charging the accused for the commission of the offences under Sections 420, 465, 466, 468 and 471 I.P.C.

4.5. The Court of Judicial Magistrate No.II, Tirunelveli, took it on file in C.C. No.10 of 2008 and on appearance of the revision petitioner/accused, framed the charges under the above said Sections and questioned him and the revision petitioner pleaded not guilty to the charges framed against him.

4.6. The prosecution in order to sustain their case, has examined P.W.1 to P.W.11 and marked Exs.P.1 to P.30.

4.7. The revision petitioner/accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against him in the evidence tendered by the prosecution and he denied it as false.

4.8. On behalf of the accused, one Sivathanu was examined and Exs.D.1 and D.2 were marked.

4.9. The trial Court on consideration of the oral and documentary evidence, has acquitted the revision petitioner/accused of the charges for the commission of the offences under Sections 420, 465, 466 and 468 I.P.C. and convicted him under Section 471 I.P.C and sentenced him as stated above and aggrieved by the same, he preferred the appeal in C.A. No.128 of 2010 on the file of the Court of III Additional Sessions Judge, Tirunelveli.

4.10. Pendency of the appeal, the revision petitioner filed a petition under Section 391 Cr.P.C. for reception of additional evidence and it was dismissed and aggrieved by the same, he filed Crl.R.C(MD)No.70 of 2012 on the file of this Court and this Court allowed the same and accordingly, he has produced the additional documents which came to be marked as Exs.D.3 to D.18.

4.11. The lower appellate Court on consideration of oral and documentary evidence and other materials, has confirmed the conviction and sentence awarded by the trial Court and hence, this revision.

Mr.S.Hameed Ismail, learned Counsel for the revision petitioner/accused made the following submissions:

5.1. The Bar Council of Tamil Nadu, vide communication dated 24.07.2001, marked as Ex.D.13, has directed the revision petitioner to produce the originals as well as the attested copies of the basic degree certificate and law degree certificate for verification of the Bar Council and in response to the same, he has submitted the documents sought for by the Bar Council of Tamil Nadu under Ex.D.14, dated 14.02.2002.

5.2. The learned Counsel for the revision petitioner/accused has drawn the attention of this Court to the testimony of P.W.9 - Investigating Officer (I) and would submit that in the cross-examination, it was admitted by P.W.9 that all the original certificates at the time of his investigation were available with the Bar Council of Tamil Nadu and he was in custody of the same for nearly five months and the final report came to be filed on 31.10.2002. In spite of availability of original documents, he has not taken any steps either to send those documents for expert opinion or forwarded the same to Bangalore University to ascertain the genuineness of the same.

5.3. It is further submission of the learned Counsel for the revision petitioner/accused that it was admitted by P.W.10 - Investigating Officer (II) that he has also examined the Principal of Islamiah College of Law, Bangalore, in which, the revision petitioner/accused has undergone the law course and recorded his statement, but, he was not cited as a witness.

5.4. The learned Counsel for the revision petitioner/accused has further drawn the attention of this Court to the testimony of P.W.6 - Superintendent of Bangalore University, who would admit in the cross-examination that till the year 1998-99, Islamiah College of Law was affiliated to Bangalore University and admittedly, the degree in question was awarded to him on 04.09.1992 and non-examination of the Principal of Islamia College is very much fatal to the case of the prosecution.

5.5. It is further submission of the learned Counsel for the revision petitioner/accused that the person who signed the Provisional Certificate, namely, B.P. Putte Gowda, Registrar (Evaluation), was not examined and P.W.7 - Hanamanthappa, who retired from the post of Registrar (Evaluation) of Bangalore University, was examined and he has deposed in the cross-examination that he verified the provisional certificate and other documents with the records and found that the disputed certificate of law degree did not tally with the records maintained by the University and would admit that Ex.P.9 - communication sent by him to the Inspector of Police, CBCID, does not reveal the particulars of the documents perused to arrive at the said conclusion and in the light of the said infirmity, it cannot be said that the provisional certificate produced by the petitioner for the purpose of enrolment cannot be said to be fake one.

5.6. It is also contended by the learned Counsel for the revision petitioner/accused, by drawing the attention of this Court to the testimony of P.W.3 - former Secretary of the Bar Council of Tamil Nadu, wherein he has spoken about the pre-enrolment procedure and admitted that Islamiah College of Law at Bangalore was recognised by the Bar Council of India and the xerox copies of the documents were also verified.

5.7. The learned Counsel for the revision petitioner/accused has reiterated his earlier submission that in spite of the fact that the original documents were available with the Bar Council of Tamil Nadu and P.W.9 was in possession of the same for nearly five months, did not care to ascertain the genuineness of those documents and erroneously chargesheeted the revision petitioner/accused and the Courts below have not considered the oral and documentary evidence in proper perspective and erroneously convicted the revision petitioner/accused for the commission of the offence under Section 471 I.P.C and prayed for interference.

5.8. The learned Counsel for the revision petitioner/accused also made a legal plea that once the trial Court acquitted the revision petitioner/accused for the commission of the offences under Sections 420, 465, 466 and 468 I.P.C., it cannot convict him for the commission of the offence under Section 471 I.P.C and in the absence of forwarding the original documents for expert opinion or to the concerned authority for verification, the benefit arising out of the same shall enure in favour of the revision petitioner/accused and in support of his submissions, placed reliance upon the following decisions:

(i) V.Sujatha v. State of Kerala reported in 1994 Supreme Court Cases (Cri) 1786.

(ii) A.S. Krishnan and Another Vs. State of Kerala, (2004) CriLJ 2833 : (2004) 3 JT 461 : (2004) 3 SCALE 362 : (2004) 11 SCC 576 : (2004) 3 SCR 44 : (2004) AIRSCW 3066 : (2004) 2 Supreme 508 .

(iii) Devendran v. State reported in 2006 (1) MWN (Cr.) 30.

(iv) R. Ashok Karnad Vs. State .

Per contra, Mr.C.Ramesh, learned Additional Public Prosecutor for the respondent has drawn the attention of this Court to the testimonies of the witnesses as well as exhibits marked by the prosecution and would submit that the Courts below exhibited fairness in convicting the revision petitioner/accused for the commission of the offence under Section 471 I.P.C based on the testimonies of P.W.6 and P.W.7, coupled with Ex.P.9 and in the cross-examination, nothing useful was elicited in favour of the revision petitioner/accused and the Courts below on a thorough appreciation and proper application of mind to the entire materials, have reached a conclusion to convict the revision petitioner/accused and prays for dismissal of this revision.

This Court has carefully considered the rival submissions and perused the materials available on record.

P.W.3 was the former Secretary of the Bar Council of Tamil Nadu and he has spoken about the pre-enrolment procedure. He would further state that in response to the requisition made by CBCID, the Bar Council of Tamil Nadu has addressed the letters to the concerned persons calling upon them to produce the originals of the basic degree as well as the law degree certificates and out of 34 persons to whom notices were sent, some persons had responded and they were able to trace out 20 persons and they were unable to trace out the remaining 14 persons. In the cross-examination, P.W.3 would depose that only after verifying all the certificates, the matter will be placed before the Enrolment Committee, who after carefully scrutinising the same, would permit a particular person to be enrolled as an Advocate and thereafter, they will be enrolled as Advocates. P.W.3 would further admit that the Bar Association has not vested with any right to verify the genuineness of the certificates and Islamiah College of Law was affiliated to Bar Council of India. He has also admitted that the xerox copies furnished to CBCID were compared with the originals and the copies were given.

P.W.4 was the Assistant Registrar of Bangalore University and she would admit in her cross-examination that before 24.05.2001, the Law Colleges affiliated to Bangalore University used to issue the provisional certificates and it will be counter-signed by the Registrar (Evaluation) and subsequently, the said procedure has been given up and instead, Bangalore University started issuing the provisional certificates.

P.W.5 was the Inspector of Police attached to CBCID and he registered the case and took up the initial investigation. In the cross-examination , he would admit that he did not seize the documents and send it for expert opinion and he has also not seen the provisional certificate issued by Bangalore University and he has also not forwarded the documents collected from Islamiah College of Law to the hand-writing expert and he has also not verified the documents.

P.W.6 was the Superintendent of Bangalore University and in the cross-examination, deposed that till the year 1998-99, the Islamiah College of Law was affiliated to Bangalore University and he has also confirmed the fact that prior to 1991, the provisional certificates were issued by the concerned Law Colleges affiliated to Bangalore University. With regard to the issuance of certificate under Ex.P.9, he has deposed that subordinates had verified the documents contained under Ex.P.9 with the relevant records and thereafter, the said letters were signed by him. P.W.6 made a crucial admission in his cross-examination, that in respect of Ex.P.9, the University did not issue any show cause notice to the Principal of the concerned Law College and no action has been taken against the concerned Colleges also. He would further admit that in Ex.P.9, it has not been specifically stated as to the documents mentioned in which the comparison was made and the certificate was given.

P.W.7 was the Registrar (Evaluation) of Bangalore University and in the chief examination, he has deposed that after perusal of the entire records, which was available in Bangalore University and on his comparison, he found that there was discrepancy regarding the disputed documents and he has given a report to the Inspector of Police, CBCID. In the cross-examination, a specific question was put to P.W.7 that the revision petitioner herein had passed all the subjects in the law course and after completion, he obtained the concerned certificates for his qualification and he has answered that he has already perused the records and issued Ex.P.9 and would further admit that he did not seek any opinion from the hand-writing expert, but, he has verified the particulars from the available records and having found that the disputed certificate does not tally with the records maintained by the University and issued Ex.P.9. He has also deposed that he has verified each and every records before sending the report and his report is a proper one.

P.W.9 was one of the Investigating Officers attached to CBCID and he, in the chief examination, deposed that on 05.07.2001, he made a requisition to Bangalore University to verify the genuineness of the certificates of the accused including the revision petitioner and the said report, marked as Ex.P.9, was received on 17.11.2001 and as per Ex.P.9, the provisional certificates of the revision petitioner and others were found to be fake. In the cross-examination, P.W.9 would admit that the originals were available with the Bar Council of Tamil Nadu and they were in his custody nearly for five months.

P.W.10 - Investigating Officer (II) attached to CBCID, in the chief examination, admitted that he examined the Principal of Islamiah College of Law and recorded his statements, but his present whereabouts were not known.

P.W.11, who completed the investigation and filed the final report, would state that he has filed the final report against 11 accused and he did not file the final report against the rest of the accused.

The testimonies of the above said witnesses coupled with the documentary evidence, would disclose the following facts:

16.1. The originals of the certificates pertaining to the revision petitioner/accused and other accused were available with the Bar Council of Tamil Nadu and it was also admitted by P.W.9 - Investigating Officer (I) and he did not forward the originals either for getting the expert opinion or to Bangalore University for verification.

16.2. P.W.3, the former Secretary of the Bar Council of Tamil Nadu has spoken about the pre-enrolment procedure and he deposed that after due verification, if the candidate is eligible for enrolment, the same will be placed before the Enrolment Committee and they will recommend the same ad thereafter, a person can be enrolled. The certificates produced by the revision petitioner/accused were also verified and those documents were found to be genuine and he was enrolled and the Enrolment certificate was also issued under Ex.D.10.

16.3. The Bar Council of Tamil Nadu, after receipt of the notice from the CBCID for production of the originals of the disputed documents, addressed a letter under Ex.D.13 to the revision petitioner/accused and in response to the same, he has produced the originals which came to be marked as Exs.D.3 to D.18 at the appellate stage.

16.4. Though the charge sheet was filed on 31.10.2002, no steps have been taken by the Investigating Officer to find out the authenticity of the original certificates given by the revision petitioner/accused.

This Court after carefully scrutinising the materials placed before this Court, is of the considered view that the respondent/prosecution has failed to establish it's case beyond any reasonable doubt, for the following reasons:

17.1. It is well settled position of law that the general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Vijayee Singh and others Vs. State of U.P., AIR 1990 SC 1459 : (1990) CriLJ 1510 : (1990) 2 Crimes 584 : (1990) 2 JT 596 : (1990) 3 SCC 190 : (1990) 2 SCR 573 .

17.2. As pointed out in the earlier paragraphs, P.W.9 - Investigating Officer (I), has categorically admitted that at the time of investigation, he found that the original documents were in the custody of the Bar Council of Tamil Nadu and they were in his custody nearly for five months and in spite of the same, he has not forwarded the original certificates to Bangalore University for verification, but forwarded only the xerox copies.

17.3. In V. Sujatha and Others Vs. State of Kerala and Others, (1994) 4 SCALE 179 : (1994) 3 SCC 436 Supp : (1994) 3 SCR 646 Supp , the accused were charge-sheeted for the commission of the offences under Sections 417, 420 and other allied offences and a case was given based on the photostat copy of the document though original document was available with Customs Department, but, it was not produced at trial. The Honourable Supreme Court has held that in spite of the availability of the originals, which were not produced during the trial, it is fatal to the case of the prosecution and allowed the appeal and acquitted the concerned accused.

17.4. In the case on hand, in spite of availability of originals, P.W.9 - Investigating Officer (I) did not forward the same either for getting the expert opinion or for verification with Bangalore University, but forwarded only the xerox copies.

17.5. P.W.6 would admit that Islamiah College of Law in which the revision petitioner/accused has undergone, was affiliated to Bangalore University till 1998-99 and admittedly, the provisional certificate issued to the revision petitioner, marked as Ex.P.7, came to be issued on 04.09.1992 and at that time, the said College was recognised by the Bar Council of India as well as by Bangalore University.

17.6. Though the Principal of Islamiah College of Law was examined and his statement was recorded, the prosecution failed to cite him as a witness.

17.7. It is to be pointed out at this juncture that it is not even the case of the prosecution that the revision petitioner/accused did not undergo the law course in Islamiah College of Law and without undergoing the said course, he managed to get the degree and therefore, the fact remains that the revision petitioner had undergone the studies in law in the concerned College and the only doubt was whether the provisional certificate said to have been given and counter-signed by the Registrar (Evaluation) of Bangalore University, is genuine or not.

17.8. P.W.7 - Registrar (Evaluation) of Bangalore University, in his chief examination, deposed that he physically verified the concerned Register and found that the provisional certificate, marked as Ex.P.7 was a fake one, but the fact remains that the details of the Registers in which he made the comparison and Ex.P.9 came to be issued, have not been given and the prosecution did not care to seize those records to substantiate their case.

17.9. The conduct of the revision petitioner/accused also assumes importance as according to P.W.3, when the letters were addressed to the concerned persons to produce the originals, only a few persons responded and the revision petitioner/accused was one such person who responded to the notice issued under Ex.D.13 and vide Ex.D. 14 - reply dated 14.02.2002, he has enclosed the originals of all documents including the mark list and the No Due Certificate, Fee Certificate, Provisional Certificate and Degree Certificate, etc. and in spite of availability of the original documents, the prosecution did not care to verify the genuineness of the same and merely placed reliance upon Ex.P. 7 alone.

17.10. In Devendran v. State reported in 2006 (1) MWN (Cr.) 30, the concerned accused was prosecuted for the offences under Sections 468 and 511 I.P.C., alleging that he has produced the forged appointment order and the learned Judge has also accepted the contention made by the learned Counsel for the petitioner that only if the prosecution proves the offence of forgery, question of other offences under Sections 468, 471 and 420 read with 511 I.P.C. would arise and therefore, rejected the case projected by the prosecution and acquitted the accused.

17.11. In Abdul Karim Madan Sahab Vs. State of Mysore, AIR 1979 SC 1506 : (1979) CriLJ 1123 : (1979) 4 SCC 595 : (1980) SCC(Cri) 140 : (1979) 11 UJ 870 , the appellant/accused was prosecuted for having forged the cheque and he was convicted and he preferred the appeal before the High Court and it was dismissed and thereafter, filed the appeal before the Honourable Supreme Court and the Honourable Supreme Court held that in the absence of any evidence to show that the accused knew or had reason to believe that cheque was forged document and with that knowledge he had used cheque, he cannot be convicted under Section 471 I.P.C and further held that merely because explanation is not convincing, no adverse inference can be drawn against him.

17.12. In A.S. Krishnan and Another Vs. State of Kerala, (2004) CriLJ 2833 : (2004) 3 JT 461 : (2004) 3 SCALE 362 : (2004) 11 SCC 576 : (2004) 3 SCR 44 : (2004) AIRSCW 3066 : (2004) 2 Supreme 508 , the scope of Sections 463 to 471 I.P.C came up for consideration and it is relevant to extract hereunder paragraphs 9 to 12:

"9. 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.

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. [See Joti Parshad Vs. State of Haryana, AIR 1993 SC 1167 : AIR 1992 SC 1167 : (1993) CriLJ 413 : (1992) 3 Crimes 756 : (1992) 6 JT 94 : (1992) 3 SCALE 42 : (1993) 2 SCC 497 Supp : (1993) 2 SCC 497 ]."

Therefore, the prosecution is under obligation to establish that the revision petitioner/accused had not only knowledge, but also had reason to believe that the provisional certificate for law degree used by him for the purpose of enrolment and practising as an Advocate, was a forged one. However, in the light of the infirmities pointed out above, the prosecution has failed to establish the commission of the offence under Section 471 I.P.C. on the part of the revision petitioner/accused beyond any reasonable doubt and consequently, the benefit of doubt shall enure in favour of the revision petitioner/accused. It is also to be pointed out that the State did not prefer any appeal against the acquittal of the revision petitioner/accused in respect of the charges framed against him under Sections 420, 465, 466 and 468 I.P.C and hence, it has become final.

The lower appellate Court failed to discuss the additional documents marked as Exs.D.3 to D.18 in pursuance of the order of this Court, dated 05.09.2012, passed in Crl.R.C(MD)No.70 of 2012 and failed to advert to the infirmities pointed out by the revision petitioner/appellant therein in the evidence tendered by the prosecution and therefore, the impugned judgment passed by the lower appellate Court in confirming the conviction and sentence passed by the trial Court, warrants interference.

In the result, this Criminal Revision Case is allowed and the judgment dated 21.10.2013, passed in C.A. No.128 of 2010, by the learned III Additional Sessions Judge, Tirunelveli, Tirunelveli District, in confirming the conviction and sentence passed by the learned Judicial Magistrate No.II (CCIW), Tirunelveli, Tirunelveli District, in C.C. No.10 of 2008, dated 30.07.2010, is set aside. The revision petitioner/accused is acquitted of the charge framed against him under Section 471 I.P.C and the bail bonds executed by him shall stand terminated. The fine amount, if any, paid by the revision petitioner shall be refunded to him.